{"generatedAt":"2026-05-19T23:11:50.516Z","source":{"fullCommissionUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","aljUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","typesIngested":["full_commission","alj"]},"counts":{"total":1436,"fullCommission":231,"alj":1205,"byYear":{"2022":1,"2023":412,"2024":497,"2025":406,"2026":120},"byOutcome":{"granted":301,"denied":192,"affirmed":50,"reversed":7,"remanded":3,"vacated":0,"dismissed":791,"modified":7,"unknown":85}},"topEmployers":[{"name":"Tyson Poultry, Inc","count":19},{"name":"City Of Little Rock","count":11},{"name":"Tyson Poultry Inc","count":9},{"name":"United Parcel Service, Inc","count":8},{"name":"Express Services, Inc","count":7},{"name":"Pine Bluff School District","count":7},{"name":"Wal-Mart Associates, Inc","count":7},{"name":"University Of Arkansas Fayetteville","count":7},{"name":"Arkansas State Police","count":7},{"name":"Walmart Associates, Inc","count":6},{"name":"Arkansas Department Of Correction","count":6},{"name":"Baptist Health","count":6},{"name":"Staffmark Investments, LLC","count":6},{"name":"Booneville Human Development Center","count":5},{"name":"Rock Region Metro","count":5},{"name":"Jerry Lynn Roberson","count":5},{"name":"Washington Regional Medical Center","count":5},{"name":"Evergreen Packaging, LLC","count":5},{"name":"Hino Motors Mfg. USA, Inc","count":5},{"name":"Mhm Support Services","count":5},{"name":"Arkansas Department Of Transportation","count":5},{"name":"Central Moloney, Inc","count":4},{"name":"City Of Jonesboro","count":4},{"name":"Central Maloney, Inc","count":4},{"name":"Performance Food Group, Inc","count":4}],"opinions":[{"id":"alj-H406382-2026-10-08","awccNumber":"H406382","decisionDate":"2026-10-08","decisionYear":2026,"opinionType":"alj","claimantName":"Rodney Mcgaughy","employerName":"Ok Foods, Inc","title":"MCGAUGHY VS. OK FOODS, INC. AWCC# H406382 January 08, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MCGAUGHY_RODNEY_H406382_20261008.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCGAUGHY_RODNEY_H406382_20261008.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H406382 \n \nRODNEY MCGAUGHY, Employee CLAIMANT \n \nOK FOODS, INC., Employer RESPONDENT \n \nOK FOODS, INC., Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 8, 2026 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by ERIN RAMBO, Attorney at Law, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On October 1, 2024, attorney Laura Beth York filed Form AR-C alleging an injury \nto  claimant’s  back  on  September  17,  2024.  Respondent  had  accepted  an  injury  to \nclaimant’s left low extremity in the form of a sprain but controverted any liability for \nindemnity  benefits  or  compensability  of  an  injury  to  the  claimant’s  thoracic  spine. \nAttorney  York  eventually  filed  a  Motion  to  Withdraw  as  Counsel  and  this  motion  was \ngranted by the Full Commission in an Order filed October 1, 2025. Since that time, the \nclaimant has not requested a hearing and has not taken any steps to proceed with this \nclaim. \n\nMcGaughy – H406382 \n \n-2- \n On  October  3,  2025,  respondent  filed  a  Motion  to  Dismiss.  A  hearing  was \nscheduled on the respondent’s motion for December 15, 2025. Notice of the hearing \nwas sent to the claimant’s last known address  by  certified  mail  and  was  returned  as \n“Unclaimed”. Claimant did not appear at the hearing and has not responded to the \nrespondent’s Motion to Dismiss.  \n Pursuant  to  11  CAR §25-110(d) (previously  codified  as  Commission  Rule \n099.13), the Commission may enter an order dismissing a claim for want of prosecution. \nAfter my review of the respondent’s motion, the claimant’s failure to respond thereto, \nand all other matters properly before the Commission, I find that claimant has failed to \nprosecute this claim. Therefore, this claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2189,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H406382 RODNEY MCGAUGHY, Employee CLAIMANT OK FOODS, INC., Employer RESPONDENT OK FOODS, INC., Carrier RESPONDENT OPINION FILED JANUARY 8, 2026 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Claimant not ...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["back","sprain","thoracic"],"fetchedAt":"2026-05-19T22:32:36.443Z"},{"id":"full_commission-H400417-2026-05-15","awccNumber":"H400417","decisionDate":"2026-05-15","decisionYear":2026,"opinionType":"full_commission","claimantName":"Kenneth Cypert","employerName":"Davis Iron & Metal, Inc","title":"CYPERT VS. DAVIS IRON & METAL, INC. AWCC# H400417 May 15, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Cypert_Kenneth_H400417_20260515.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Cypert_Kenneth_H400417_20260515.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H400417 \n \nKENNETH CYPERT (DEC’D), EMPLOYEE  CLAIMANT \n \nDAVIS IRON & METAL, INC., EMPLOYER RESPONDENT \n \nSUMMIT CONSULTING, LLC,  \nINSURANCE CARRIER/TPA RESPONDENT \n \n \nOPINION FILED MAY 15, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE ZACHARY F. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed December 15, 2025.  In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-hearing conference \nconducted on August 20, 2025, and contained in a pre-hearing order \nfiled that same date are hereby accepted as fact.  \n \n2. The parties’ stipulation that claimant earned an average weekly wage \nof $689.60 is also hereby accepted as fact.  \n \n3. Claimant’s death was causally related to his compensable burn injury.  \n\nCYPERT - H400417  2\n  \n \n \n \n4. Respondent is liable for payment of funeral expenses in the amount \nof $6,000.00.  \n \n5. Mary Cypert, claimant’s mother, has met her burden of proving by a \npreponderance of the evidence that she was partially dependent upon \nclaimant’s earnings for support at the time of his death.  \n \n6. Mary Cypert is entitled to dependent benefits in the amount of $34.48 \nper week.  \n \n7. Respondent has controverted payment of dependency benefits. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed.  Specifically, we find from a preponderance \nof the evidence that the findings made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(a)(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \n\nCYPERT - H400417  3\n  \n \n \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority’s opinion that the claimant’s \ndeath was causally related to his compensable burn injury.   \n Claimant was 58 years old when he suffered a burn injury to his low \nback while working for the respondent employer on January 9, 2024.  He \nwas taken to the Arkansas Children’s Burn Center where he was \nhospitalized for burns involving approximately 20-29% of his body.  \n The claimant underwent surgery for burn wound excision and \nallograft placement.  While hospitalized, the claimant began showing \nsymptoms of alcohol withdrawal, and his team began treatment for the \nalcohol withdrawal.  On the morning of January 17, 2024, claimant was \nfound to be unresponsive and ultimately died.  \n\nCYPERT - H400417  4\n  \n \n \n At the time of his injury, claimant was living with his mother, Mary \nEdith Cypert, who contends that her son’s death was a result of his \ncompensable injury and is requesting payment of dependent benefits.  After \na hearing, an ALJ ruled in favor of the claimant.  Respondents appeal. \nTo sustain a compensable injury, one must prove by a \npreponderance of the evidence that (1) the injury arose out of and in the \ncourse of the employment, (2) the injury caused internal or external physical \nharm to the body that required medical services or resulted in disability \nor death, and (3) the injury was a major cause of the disability or need for \ntreatment.  Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d \n560 (2002). \nThe determination of whether there is a causal connection between \nthe injury and disability is a question of fact for the Commission to \ndetermine.  Oak Grove Lumber v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 \n(1998).  The determination of the existence of an independent intervening \ncause is a question of fact for the Commission to determine.  Id.   Further, a \ncompensable injury must be established by medical evidence supported by \nobjective findings.  Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 \nS.W.3d 760 (2001).  \nMedical opinions addressing compensability must be stated within a \nreasonable degree of medical certainty.  Crudup v. Regal Ware, Inc., 341 \n\nCYPERT - H400417  5\n  \n \n \nArk. 804, 20 S.W.3d 900 (2000).  Speculation and conjecture cannot \nsubstitute for credible evidence.  Smith-Blair, Inc. v. Jones, 77 Ark. App. \n273, 72 S.W.3d 560 (2002). \nThe claimant suffered a burn injury covering approximately twenty to \ntwenty-nine percent of his body.  The claimant remained in the hospital for \nseveral weeks after his injury and was tested for lung and heart issues that \ncould arise from severe burns.  Doctors determined that the claimant was \nnot at risk for heart or lung conditions; however, the claimant began \nsuffering from severe alcohol withdrawal during this time.  The claimant \nultimately died during his hospitalization. \nAn associate medical examiner completed the claimant’s death \ncertificate, listing “Complications of Thermal Injury” as the immediate cause \nof death with “Hepatic Steatosis and Fibrosis” as a contributing factor. \nThere are no records or testimony that support or explain this finding, nor \nhas any expert stated within a reasonable degree of medical certainty that it \nis more likely than not that the claimant succumbed to his burn injuries \nrather than alcohol withdrawal or pre-existing severe liver disease.  In fact, \nthe notes submitted by the parties regarding the claimant’s ultimate death \ndo not speculate as to the cause of death.  \nNeither party submitted any records of an autopsy to confirm the \nmedical examiner’s findings.  A death certificate prepared without full \n\nCYPERT - H400417  6\n  \n \n \nknowledge of the decedent’s medical condition cannot be treated as prima \nfacie evidence.  See Generally Farm Bureau Mut. Ins. Co. v. Fuqua, 269 \nArk. 574, 599 S.W.2d 427 (1980). \nThe claimant’s medical history is too complex for the Commission to \nfind that his work-related injury was the cause of his death by the \npreponderance of the evidence.  The medical examiner’s findings, while \ninconclusive at best, also reflect that the decedent’s liver condition and \nalcoholism were significant contributing factors in his death.  \nThere is no testimony or evidence reflecting how the claimant’s \nburns may have resulted in his death, whether by shock, infection, heart \nfailure, or any other cause, nor are there any attempts by his medical team \nto establish the cause.  There is insufficient evidence to make the \nclaimant’s case in this matter.  For these reasons, it is clear that the \nclaimant has failed in meeting his burden of proof and the ALJ’s findings \nshould be reversed. \nOur rules provide that “compensation for the death of an employee \nshall be paid to those persons who were wholly and actually dependent \nupon the deceased employee.” Ark. Code Ann. § 11-9-527(c) “If the \nemployee leaves dependents who are only partially dependent upon his or \nher earnings for support at the time of injury, the compensation payable for \npartial dependency shall be in the proportion that the partial dependency \n\nCYPERT - H400417  7\n  \n \n \nbears to total dependency.”  Ark. Code Ann. § 11-9-527(i)(1).  An important \nconsideration here is Ms. Cypert’s “reasonable expectation of future \nsupport.”  Roach Mfg. Co. v. Cole, 265 Ark. 908, 582 S.W.2d 268 (1979). \n“Partial dependency may be found when, although the claimant may \nhave other substantial sources of support from his own work, from property, \nor from other persons on whom the claimant is also dependent, the \ncontributions made by the decedent were looked to by the claimant for the \nmaintenance of his accustomed standard of living.”  Williams v. Cypress \nCreek Drainage, 5 Ark. App. 256, 635 S.W.2d 282 (1982). \nIn this case, the only evidence that the claimant’s mother, Mary \nCypert, was dependent on the claimant is her own self-serving testimony. \nThere is no record or evidence that the claimant ever made these purported \ncash payments to Ms. Cypert.  Further, the claimant’s mother owns the \nhome in which the two of them lived and has a monthly disability income of \napproximately $1,600.  Any payments from the claimant, which Ms. Cypert \nhas claimed at different times to be $200 to now $300 weekly, would merely \ncover the claimant’s living expenses.  \nMs. Cypert has produced no evidence that she actually relied on \npayments made by the claimant or that payments ever occurred.  The \nclaimant was living with Ms. Cypert and, it would seem, simply paid her for \nhis own living expenses.  There is no evidence in the record that reflects a \n\nCYPERT - H400417  8\n  \n \n \nfinding that Ms. Cypert was dependent on the claimant’s income or that she \nis worse off without it.  For these reasons, she has failed to establish her \nburden of proof. \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n                                   _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":10028,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H400417 KENNETH CYPERT (DEC’D), EMPLOYEE CLAIMANT DAVIS IRON & METAL, INC., EMPLOYER RESPONDENT SUMMIT CONSULTING, LLC, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 15, 2026 Upon review before the FULL COMMISSION in Litt...","outcome":"reversed","outcomeKeywords":["reversed:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:43.460Z"},{"id":"full_commission-H103080-2026-05-15","awccNumber":"H103080","decisionDate":"2026-05-15","decisionYear":2026,"opinionType":"full_commission","claimantName":"Jimmy Foster","employerName":"Booneville Human Development Center","title":"FOSTER VS. BOONEVILLE HUMAN DEVELOPMENT CENTER AWCC# H103080 May 15, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Foster_Jimmy_H103080_20260515.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Foster_Jimmy_H103080_20260515.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H103080 \n \nJIMMY FOSTER, \nEMPLOYEE \n \nCLAIMANT \nBOONEVILLE HUMAN DEVELOPMENT \nCENTER, EMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 15, 2026  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE JARID M. KINDER, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed in part, reversed in part. \n \n \n OPINION AND ORDER \nThe claimant appeals and the respondents cross-appeal an \nadministrative law judge’s opinion filed December 23, 2025.  The \nadministrative law judge found that the claimant failed to prove he was \npermanently totally disabled.  The administrative law judge found that the \nclaimant failed to prove he was entitled to permanent partial disability \nbenefits “for loss in wage earning capacity.”  After reviewing the entire \nrecord de novo, the Full Commission finds that the claimant did not prove \nhe was permanently totally disabled.  The Full Commission finds that the \nclaimant proved he sustained wage-loss disability in the amount of 15%.  \n\nFOSTER - H103080  2\n  \n \n \nWe find that the claimant proved the compensable injury was the major \ncause of his 15% wage-loss disability.     \nI.  HISTORY \n Jimmy Glenn Foster, Sr., now age 71, testified that he had been \neducated through the 12\nth\n grade.  Mr. Foster testified that his employment \nhistory included “ a lot of prison work.”  The claimant’s testimony indicated \nthat he had worked in various correctional facilities for approximately 13 \nyears.  The claimant testified that he had also worked as a “bouncer” and \narmed security officer in a casino.        \nThe claimant testified that he had formerly been employed with the \nrespondents, Booneville Human Development Center.  Mr. Foster testified \non direct examination: \n  Q.  And what does BHDC do? \nA.  They take care of clients that is not able to take care of \ntheir self.  They feed them.  They take care of them.  They \nteach them how to work and they just work with clients that is \nnot privileged to be at home.   \nQ.  What did you do for them?   \nA.  I done the same thing.  I bathed them.  I shaved them.  I \nbrushed their teeth.  I made their beds.  We fed them.  We \nwashed their clothes.  We dried them and stuff like that.   \nQ.  How long did you work there? \nA.  Before I got sick, I think around eight years, nine years.  It \nwas going on 10 years, I think.  Pretty close....I was full time \nMonday through Friday and weekends off.... \nQ.  Was your job at Booneville Health, was that a physical \njob? \nA.  Yes, sir.   \nQ.  Would you mind describing that for me and the Court. \n\nFOSTER - H103080  3\n  \n \n \nA.  The physical part where we would strip the client’s bed, \nremake them ourselves, mop and sweep the floors, clean the \ntoilets.  We would take their clothes down to laundry and wash \nand dry them and fold them and then put them away.  And \nmake sure that they had food to eat at the time of food and we \nwould brush their teeth and shave them.... \nQ.  Now, out of an eight-hour workday, how much of that \nwould you spend on your feet while working? \nA.  Pretty much the whole eight hours constantly being busy.   \n \n The parties stipulated that the employment relationship existed on \nJuly 31, 2020, on which date the claimant “sustained a compensable injury.”  \nThe claimant testified on direct examination: \n  Q.  When did you contract COVID-19? \nA.  I want to say it was in August.  That’s when I got tested \nand I tested positive at the facility.... \nQ.  How did you contract it? \nA.  COVID-19 had hit our facility through staff at first and then \nit spread to the clients.  And we had one client that – when I \ncame on duty that morning, we had one client that was \nquarantined and he had COVID and I had to take care of him.  \nHe was quarantined in his room.  I had to go feed him.  I had \nto brush his teeth.  I  had to shave him because he couldn’t \ncome out of his room.... \nQ.  When did you first start noticing symptoms? \nA.  About probably the last week in July and the first week in \nAugust.  I started losing my breath and feeling really bad.... \n \n The claimant testified that he did not return to work for the \nrespondents after July 31, 2020.  A physician’s diagnoses on August 8, \n2020 were “Pneumonia due to COVID-19 virus (Primary)” and “Morbid \nobesity with BMI of 70 and over, adult.” \n Dr. Monali Hanmant Patil noted on August 9, 2020, “Jimmy G Foster \nis a 65 y.o male admitted 8/8/2020 with complaints of shortness of breath.  \n\nFOSTER - H103080  4\n  \n \n \nPatient works [at] human development center in Booneville.  Patient had an \nexposure to COVID patient couple 2 weeks ago.  Patient started having \nsymptoms about 8 to 9 days ago.  Patient tested positive for COVID.”     \n A Nurse Practitioner noted on August 25, 2020, “65 yo male admitted \n17 days ago with hypoxemic respiratory failure secondary to COVID-19 \npneumonia.  Sedation was recently weaned and the patient was noted to be \nunresponsive.  He remains critically ill with frequent oxygen desaturation \nepisodes requiring continued sedation.” \n The claimant’s testimony indicated that he was hospitalized through \napproximately October 2020.  An APRN noted on November 9, 2020, “His \ngoal is to improve his health so he can return to work.”  Dr. Julio F. \nSchwarz, a cardiologist, diagnosed “Paroxysmal atrial fibrillation” on \nFebruary 1, 2021.   \n Rhonda Murphy, an Assistant Claims Determination Manager, \ncorresponded with the claimant on March 31, 2021: \nPublic Employee Claims Division (PECD) administers the \nworkers compensation benefits for AR Human Development \nCenter – Booneville.   \nYour claim has been accepted as compensable based on \nyour positive COVID-19 medical status. \nThe total disability rate is based upon sixty-six and two-thirds \npercent (66 2/3%) of your average weekly wage at the time \n[of] the exposure.  Based on the wage information we have \nreceived, you will be entitled to receive TTD compensation in \nthe amount of $$329.00 per week.  TTD compensation is \nbased on a seven day week.   \n\nFOSTER - H103080  5\n  \n \n \nIt is my understanding that you received Director’s Leave pay \nthrough 1/8/2021.  A State Warrant for compensation benefits \nin the amount of $3,948.00 representing payment for the \nperiod of 1/9/2021 through 4/2/2021 has been ordered.... \nTemporary Total Disability (TTD) compensation will continue \nto be paid to you on a bi-weekly basis until you receive the \nrelease letter from AR Department of Health and return back \nto work.   \n \n Kimberly Thomas, a Human Resources Specialist, corresponded \nwith the claimant on August 16, 2021: \nYou are due for your five-year background checks.  Please fill \nout the attached forms and bring back to Human Resources \nby Friday, September 10, 2021 along with your driver’s \nlicense or photo ID.  I will get these forms notarized once they \nare returned.   \n \n Julie Street, Assistant Personnel Manager for Booneville Human \nDevelopment Center, corresponded with the claimant on October 25, 2021: \nOn August 16, 2021, we sent you the Catastrophic Leave \napplication.  We sent follow-up paperwork to correct dates on \nAugust 30, 2021.  Also, on October 1, 2021, we sent another \ncomplete Catastrophic Leave application for your completion.  \nAs of today, October 22, 2021, we have not received the \ncompleted application to submit to the Catastrophic Leave \nCommittee.  I spoke with Tara Barnes with the Office of \nFinance and Administration regarding your incomplete \napplication on October 12, 2021, and she confirmed after \nspeaking with you that you were having a hard time \nscheduling an appointment to get additional paperwork \nupdated and would get it to us once completed.   \nOn August 30, 2021, we sent you your five-year Background \nCheck forms to be completed and returned by September 10, \n2021.  These were not received by the requested date.  After \nspeaking with you on September 23, 2021, you stated you \ncould not locate the forms and needed them resent.  On \nOctober 1, 2021, we resent the forms as requested.  As of \n\nFOSTER - H103080  6\n  \n \n \ntoday, we still have not received the completed Background \nChecks.   \nAt this time, we have not received the requested updated \napplication to submit to the committee nor have we received \nyour Background Checks (State, Federal, Adult and Child \nMaltreatment). \nThe Catastrophic Leave Committee can not process your \napplication without the requested documentation and will \nreject if not submitted.   \nYour Background Checks with our facility are currently out of \ndate and in violation of Office of Long-Term Care regulations.  \nPlease return the requested Background Check forms and \nupdated medical information by November 2, 2021 to prevent \nus from proceeding with termination.   \n \n The respondent-employer’s Director of Residental Services \ncorresponded with the claimant on November 30, 2021: \nThis letter is to inform you that your employment with the \nArkansas Department of Human Services is terminated \neffective November 30, 2021.  This notification is provided to \nyou in accordance with DHS Policies 1049 (Resignation or \nTermination).   \nYour termination has been coded “Involuntary” based on an \ninternal investigation.   \nYou must immediately return any keys, parking decal, \nidentification badge, and any other DHS property in good \nworking order.... \n \n The claimant testified on direct examination: \n  Q.  Were you terminated from this position? \n  A.  Yes, sir, I was.   \nQ.  What was your understanding of why you were \nterminated? \nA.  From what I understand, refusing to go have an FBI \nbackground check because I wasn’t released from the doctor \nat that time.   \nQ.  Did you go have the FBI background check done? \nA.  No, sir. \nQ.  Why did you not? \n\nFOSTER - H103080  7\n  \n \n \nA.  Because I was still under doctor’s care and wasn’t \nreleased to go back to work.   \nQ.  What all did they ask you to do in going about getting that \nbackground FBI check done? \nA.  They sent me some papers to fill out, which I didn’t \nunderstand them, and I called to personnel and talked to a \nlady in personnel.  And she told me on some things what to fill \nout and told me what to check, which I had no clue.  I was \nfollowing orders.  Other than that, I didn’t know nothing about \nall that paperwork.   \nQ.  As part of the FBI check, where you physically required to \ngo into the Booneville Health? \nA.  We was physically required to go there at the facility and \nlet them do whatever they do to do the background check. \nQ.  And that was part of the request back when they asked \nyou to do the FBI check was to come into work? \nA.  Yes, sir.... \nQ.  Have you worked at all since July 31\nst\n of 2020? \nA.  No, sir. \nQ.  Why not? \nA.  Because I am not physically able to pass a physical and \nhold a job. \n \n The respondents’ attorney cross-examined the claimant: \n  Q.  Did you ever fill out the forms for the background checks? \nA.  They sent me some papers to fill out and I didn’t quite \nunderstand them.  And I tried to fill them out, but I just couldn’t \nfill them out.  And I just back off on it because I wasn’t \nreleased to even go to that facility.  I was still under a doctor’s \ncare.   \nQ.  Well, that is where I am a little confused again.  You said \nyou weren’t released.  Did you understand what the \nbackground checks were for? \nA.  We used to have them every five years to make sure you \ndidn’t have no criminal record.  I have a perfect record.  I \nworked in prison systems in the past, lockup facilities before I \ncame to BHDC.  I have a perfect record.  I can buy a firearm \nwithout any flaws in my background check.   \nQ.  So you have completed the FBI background check \nbefore? \nA.  While I was at that facility, yes.   \n\nFOSTER - H103080  8\n  \n \n \nQ.  Okay.  So you already knew what it was? \nA.  Yes. \nQ.  Okay.  Did you understand that it was required for you to \nhave that job in that facility? \nA.  Yes.   \nQ.  Okay.  So my question is why did you not at least get the \nbackground check done so that you could go back to work \nthere? \nA.  Because I wasn’t released from any doctor yet.  I was still \nunder doctor’s care, wound care, the heart doctor, my \nphysical doctor, and they still had COVID on the hill and I \ndidn’t want to risk redoing it again after my lungs were \nscarred.          \n \n The diagnosis of Dr. Schwarz on March 28, 2022 included \n“Hypertensive heart disease with chronic diastolic congestive heart failure.”   \nThe claimant participated in a Functional Capacity Evaluation \nthrough Functional Testing Centers, Inc. on April 26, 2022:   \nMr. Foster is referred following reports of long term residual \neffects from Covid \n19....Consistency of effort testing obtained during this \nevaluation indicate \nsignificant observational and evidence-based inconsistencies \nresulting in self-limiting behavior and sub-maximal effort.  The \nresults of the evaluation indicate that an unreliable effort was \nput forth, with 13 of 53 consistency measures within expected \nlimits....Mr. Foster completed functional testing on this date \nwith unreliable results....Overall, Mr. Foster demonstrated \nthe ability to perform work in at least the SEDENTARY \nclassification of work[.]... \nMr. Foster reports that he was diagnosed with Covid-19 in \nJuly of 2020.  He reports that he was admitted into the \nhospital and remained in the hospital for approximately 2 \nmonths before he was transitioned to a long-term facility for \nanother month.  Mr. Foster reports he has had multiple \ncomplications including a decubitus ulcer which required \nwound care as well as IV antibiotics for an infection....Mr. \nFoster reports that he has permanent damage to his lungs \n\nFOSTER - H103080  9\n  \n \n \ndue to Covid.  He reports that he can only walk for 100 feet \nbefore he has to stop and rest.  Mr. Foster reports he has not \nreturned to work and states he was terminated by his \nemployer.... \n \n It was also reported at Functional Testing Centers on or about April \n26, 2022:  “When utilizing the Guides Table 8 (p. 162):  Classes of \nRespiratory Impairments:  Mr. Foster does have a class 2 (mild) impairment \nwith a 10% Whole Person Impairment.”  \n The claimant testified on direct examination: \nQ.  It is also my understanding that you have issues with your \nlungs from COVID.  Is that right? \nA.  Yes, sir. \nQ.  Tell me about that. \nA.  My lungs were scarred real bad.  They said I had double \npneumonia when I was in Mercy, and I was on the ventilator, \nand they said my lungs was permanently damaged....I still \nhave problems breathing.  I have a thing at home that the \ndoctor prescribed for me.  And I can’t walk far because of my \nshortness of breath.  I try to make myself do.  In other words, I \ngo and try to make myself function more than normal.... \nQ.  And the respondents are paying you for the 10 percent \nrating to your lungs.  Is that correct? \nA.  I get some kind of check every two weeks or every week, \nbut I don’t know what it is for.   \n \n The claimant’s testimony indicated that he did not receive temporary \ntotal disability benefits for the period after May 6, 2022. \n Rhonda Murphy, the respondents’ Assistant Claims Determination \nManager, corresponded with the claimant on May 17, 2022: \nWe have received a report from Rick Byrd indicating you have \nreached maximum medical benefit as of 4/26/2022. \n\nFOSTER - H103080  10\n  \n \n \nMr. Byrd also stated you have a 10% Permanent Partial \nImpairment for a mild ventilatory defect.  This impairment \nrating entitles you to 45 weeks of PPD benefits at the weekly \nrate of $247.00 for a total of $11,115.00.  PPD benefits are \npaid bi-weekly, and your first PPD payment will cover the \ndates 5/7/22 through 5/20/22.  You should receive this check \nin the next few days.  The PPD benefits will pay out on March \n17, 2023.... \n \n Dr. Sara L. Roberson reported on June 17, 2022: \nJimmy G Foster 10/16/1954 is a patient of mine at the family \nmedicine clinic in Waldron.  I have been this patient’s primary \ncare provider since 2014.  He is requesting this letter \nstatement concerning his ability to work.  This patient was \nhospitalized with severe COVID-pneumonia, he has had \ndeterioration in his health that has included diastolic heart \nfailure, pulmonary hypertension, paroxysmal A. fib and \nrespiratory failure.  He has had a great deal of trouble \nregaining his prior level of functioning.  I do not believe the \npatient will be able to return to work and should strongly \nconsider retirement at this time.   \n \n Dr. Terry Clark examined the claimant on September 26, 2022 and \ndiagnosed “1.  Acute respiratory failure with hypoxia,” “2.  Other \nnontraumatic subarachnoid hemorrhage,” and “3.  Pressure ulcer of sacral \nregion,  stage 4.”  Dr. Clark stated, “Jimmy’s recommended work status is \nRegular Duty.  The effective date for this work status is 9/26/2022....Unable \nto determine work restrictions due to inconsistent/submaximal effort on the \nFCE.”    \n A pre-hearing order was filed on October 6, 2022.  The claimant \ncontended, “1.  The claimant, Jimmy Foster, sustained compensable \ninjuries following a COVID-19 injury on August 6, 2020 while working for \n\nFOSTER - H103080  11\n  \n \n \nBooneville Development Center in Booneville, Arkansas.  Said injuries, \ninclude, but are not limited to:  a respiratory disorder, sacral wound, \nparoxysmal atrial fibrillation, dyspnea on exertion, essential hypertension, \nhypertensive heart disease, left ventricular diastolic dysfunction, pulmonary \nhypertension, left ventricular dilation, trivial nonrheumatic mitral \ninsufficiency trivial nonrheumatic tricuspid insufficiency, a subarachnoid \nhemorrhage, and hemiparesis.  2.  Sara L. Roberson has taken the \nclaimant off work indefinitely due to his severe COVID-pneumonia and \nsubsequent deterioration of health.  3.  To date, the claimant has only been \nreleased as at maximum medical improvement for his sacral wound on \nSeptember 27, 2021 and his lungs (mild ventilatory defect) [on] April 26, \n2022.  He remains in his healing period and has not been returned to work \nand thus contends he is owed temporary total disability benefits from May \n17, 2022 through a date yet to be determined.  4.  Due to the controversion \nof entitled benefits, the respondents are obligated to pay one half of the \nclaimant’s attorney’s fees.  5.  Claimant reserves the right to raise additional \ncontentions at the hearing of this matter.\"   \n The respondents contended, “[T]he claimant reported on August 5, \n2020 that he tested positive for COVID, with his last day of work being July \n31, 2020.  Respondent did accept this claim as compensable pursuant to \nArk. Code Ann. §11-9-601 (effective from March 11, 2020 and until May 1, \n\nFOSTER - H103080  12\n  \n \n \n2023) and respondent has provided benefits to or on behalf of the claimant \nfor this claim.  Respondent has provided reasonable and necessary medical \ntreatment for the claimant, including treatment with Dr. Terry Clark, Dr. \nDelilah Easom for wound care and Dr. Julio Schwarz, cardiac specialist.  \nThe claimant tested unreliably in the Sedentary classification of work at a \nFunctional Capacity Evaluation on April 26, 2022 with 13 of 53 consistency \nmeasures.  The claimant was paid his salary by his employer until January \n8, 2021 at which point the claimant was paid temporary total disability \nbenefits by the respondent from January 9, 2021 until May 6, 2022 when \nthe claimant was released at maximum medical improvement by his treating \nphysician Dr. Terry Clark.  The claimant was assigned permanent \nanatomical impairment of 10% to the whole person which has been \naccepted by respondent and permanent partial disability benefits are being \npaid to the claimant for this impairment rating.  The claimant would not \nreturn to work and would not complete his mandatory background checks \nfor his job.  The claimant’s employment ended November 30, 2021.  The \nrespondents reserve the right to raise additional contentions, or to modify \nthose stated herein, pending the completion of discovery.”   \n The parties agreed to litigate the following issues: \n1.  Whether claimant is entitled to temporary total disability \nbenefits.   \n  2.  Attorney’s fee.  All other issues are reserved by the parties.   \n \n\nFOSTER - H103080  13\n  \n \n \n A hearing was held on December 6, 2022.  The claimant testified \nthat he was not working, because “I am not physically able.”    \nAn administrative law judge filed an opinion on February 9, 2023.  \nThe administrative law judge found that the claimant failed to prove his \n“heart disease” and “right ulnar neuropathy” were compensable conditions.  \nThe administrative law judge found that the claimant was entitled to a \nperiod of additional temporary total disability benefits.  The claimant \nappealed to the Full Commission and the respondents cross-appealed. \n The Full Commission filed an opinion on August 9, 2023.  A majority \nof the Full Commission found that the claimant proved “the diagnosis of \natrial fibrillation was a natural consequence of the compensable COVID-19 \ncondition sustained by the claimant.”  The Full Commission found that the \nclaimant did not prove the right ulnar neuropathic condition was a natural \nconsequence of the compensable injury.  The Commission found that the \nclaimant “did not prove he remained within a healing period or was totally \nincapacitated from earning wages at any time after April 26, 2022.”  The \nFull Commission found that the claimant “proved he sustained 10% \npermanent anatomical impairment as a result of the diagnosis of atrial \nfibrillation.”        \n The respondents appealed the Full Commission’s opinion to the \nArkansas Court of Appeals.  The Court of Appeals affirmed the Full \n\nFOSTER - H103080  14\n  \n \n \nCommission in part and reversed in part.  Booneville Hum. Dev. Ctr. v. \nFoster, 2024 Ark. App. 618, 704 S.W.3d 618.  The Court of Appeals \naffirmed the Full Commission’s finding that the claimant proved the \ndiagnosis of atrial fibrillation was a natural consequence of the \ncompensable COVID-19 condition sustained by the claimant.  However, the \nCourt reversed the Commission’s finding that the claimant proved he \nsustained 10% permanent anatomical impairment as a result of the \ndiagnosis of atrial fibrillation. \n Tanya Rutherford Owen, Ph.D. provided a VOCATIONAL \nANALYSIS on March 17, 2025.  Dr. Owen reported in part: \nI engaged Mr. Foster in a discussion about work.  He has not \nsought other employment since contracting COVID-19 in \n2020, reporting that he is physically unable to do so.  He \nbelieves that his primary barriers to return to work involve his \nlimited stamina, debility, and shortness of breath.  He also \ncites ongoing memory problems following his illness.   \nIn addition to his ongoing medical problems and related \nphysical and cognitive limitations, Mr. Foster also has several \nvocationally relevant barriers that negatively impact his ability \nto obtain employment.  First, his age is a barrier to \nemployment.  Second, he has never performed sedentary \nwork or work that requires computer skills and is not computer \nliterate.  Third, Mr. Foster has been out of the workforce for \nover 4 years.  Based upon a review of literature, the \nprobability of returning to the workforce decreases the longer \nan individual is unemployed.... \nFollowing his hospitalization in 2020 and termination from \nBooneville Human Development Center, Mr. Foster’s \nemployment was terminated by BHDC and he applied for \nretirement benefits.  He notes prior to contracting COVID, he \nwas physically fit and lifted weights three times per week, and \nas such planned to work as long as necessary to maximize \n\nFOSTER - H103080  15\n  \n \n \nhis State of Arkansas retirement benefit.  However, after \ncontracting COVID, he took retirement benefits after his \ntermination.  He essentially exited the labor market earlier \nthan intended due to his illness.... \nMr. Foster’s previous positions have consisted of medium \nstrength level work (lifting/carrying/pushing/pulling up to 50 \npounds) as an aide and correctional officer and light work \n(lifting/carrying/pushing/pulling up to 20 pounds) as a security \nguard.  If Dr. Clark’s opinions are given the weight of medical \nevidence, he should have been able to return to full duty and \nwould sustain no loss of earnings capacity.   \nWith either sedentary (lifting/carrying/pushing/pulling up to 10 \npounds) work limitations (per the FCE) or the medical opinion \nof his treating provider, Dr. Roberson, Mr. Foster could not \nreturn to past work and could not access transferable skill \noccupations.  Given either of these scenarios, he would be \nunemployable and sustained, as a result of his condition, a \ntotal loss of earnings capacity.... \n \n A pre-hearing order was filed on June 2, 2025.  The claimant \ncontended, “1.  The claimant, Jimmy Foster, sustained compensable \ninjuries following a COVID-19 injury on August 6, 2020, while working for \nBooneville Development Center in Booneville, Arkansas.  Said injuries, \ninclude, but are not limited to:  a respiratory disorder, sacral wound, \nparoxysmal atrial fibrillation, dyspnea on exertion, essential hypertension, \nhypertensive heart disease, left ventricular diastolic dysfunction, pulmonary \nhypertension, left ventricular dilation, trivial nonrheumatic mitral \ninsufficiency trivial nonrheumatic tricuspid insufficiency, a subarachnoid \nhemorrhage, and hemiparesis.  2.  Sara L. Roberson has taken the \nclaimant off work indefinitely due to his severe COVID-pneumonia and \nsubsequent deterioration of health.  3.  The claimant was evaluated by a \n\nFOSTER - H103080  16\n  \n \n \nvocational expert, Tonya Owen, PHD, and she determined that due to his \nworkplace injuries, the claimant ‘would be unemployable and sustained, as \na result of his condition, a total loss of earnings capacity.’  A summary of \nher report is attached as Exhibit 1.  4.  The claimant contends that he is \npermanently and totally disabled as a result of his workplace injury and is \nowed benefits for said total disability.  In the alternative, the claimant \ncontends he is owed wage loss benefits.  5.  Due to the controversion of \nentitled benefits, the respondents are obligated to pay one half of the \nclaimant’s attorney’s fees.  6.  Claimant reserves the right to raise additional \ncontentions at the hearing of this matter.”   \n The respondents contended, “The claimant tested positive for \nCOVID, and that respondent did accept this claim as compensable \npursuant to Ark. Code Ann. §11-9-601 [Effective from March 11, 2020, and \nuntil May 1, 2023] and respondent has provided benefits to or on behalf of \nthe claimant for this claim.  The claimant was paid his salary by his \nemployer until January 8, 2021, at which point the claimant was paid \ntemporary total disability benefits by the respondent from January 9, 2021, \nuntil May 6, 2022, when the claimant was released at maximum medical \nimprovement by his treating physician, Dr. Terry Clark.  The claimant tested \nunreliably in the sedentary classification of work at a Functional Capacity \nEvaluation on April 26, 2022, with 13 of 53 consistency measures, and Dr. \n\nFOSTER - H103080  17\n  \n \n \nClark was unable to determine work restrictions due to the claimant’s \ninconsistent/submaximal effort on the FCE.  The claimant was assigned \npermanent anatomical impairment of 10% to the whole person which has \nbeen accepted by respondent and permanent partial disability benefits were \npaid to the claimant for this impairment rating.  The claimant would not \nreturn to work and would not complete his mandatory background checks \nfor his job.  The claimant’s employment ended November 30, 2021.  The \nclaimant testified at the December 6, 2022, hearing that he is not looking for \nwork.  The claimant has, in fact, retired and collects his pension in addition \nto his Social Security retirement.  The claimant had a bona fide and \nreasonably obtainable offer to be employed at wages equal to or greater \nthat his average weekly wage at the time of the accident, therefore, he is \nnot entitled to permanent partial disability benefits in excess of the \npercentage of permanent physical impairment pursuant to Ark. Code Ann. \n§11-9-522(b)(2).  The Full Commission found that the claimant did not \nprove a right ulnar nerve neuropathic condition was a natural consequence \nof the compensable injury and that he did not prove that he remained within \na healing period or was totally incapacitated from earning wages at any \ntime after April 26, 2022.  The claimant demanded additional permanent \nimpairment ratings but was not awarded any additional impairment rating \nbeyond the 10% already accepted and paid by the respondent.  These \n\nFOSTER - H103080  18\n  \n \n \ndecisions are now res judicata and the law of the case.  Respondents \ncontends (sic) that the claimant cannot meet his burden of proving that he is \npermanently and totally disabled or unable to earn any meaningful wages at \nthe same or other employment.  Respondent further contends that the \nclaimant lacks motivation to return to the workforce and cannot meet his \nburden of proving that he is entitled to disability benefits in excess of his \nanatomical impairment rating for wage loss.  The respondents also contend \nthat the claimant cannot meet his burden of proving that a compensable \ninjury is the major cause of his disability.  Respondent also contends that if \nthe claimant establishes that he is disabled, his compensation should be \nreduced and limited to the proportion only of the compensation that would \nbe payable if the occupational disease were the sole cause of the disability \nas the occupational disease as a causative factor bears to all the causes of \nthe disability, pursuant to Ark. Code Ann. §11-9-601(c)(1)[Effective from \nMarch 11, 2020 and until May 1, 2023].  The respondents reserve the right \nto raise additional contentions, or to modify those stated herein, pending the \ncompletion of discovery.”   \n The parties agreed to litigate the following issues: \n1.  Whether claimant is entitled to permanent total disability or, \nalternatively, wage loss disability.   \n2.  Whether claimant can establish that his compensable \nCOVID-19 injury is a major cause for his permanent disability \nor alternatively, wage loss disability. \n\nFOSTER - H103080  19\n  \n \n \n3.  Whether claimant refused a bona fide offer of employment \nof wages equal to or greater than his average weekly wage \nafter he was released at maximum medical improvement. \n4.  Attorney’s fee.  All other issues are reserved by the parties. \n \n The parties deposed Dr. Tanya Rutherford Owen on August 19, \n2025.  The claimant’s attorney examined Dr. Owen: \n  Q.  Did you conduct a vocational analysis on Jimmy Foster? \n  A.  I did.... \n  Q.  Did you meet with Mr. Foster? \n  A.  My interviews have been by telephone for him.... \nQ.  Do you believe Mr. Foster has any transferable skills to \nother jobs? \n  A.  No, he has no – he has no transferable skills. \nQ.  Is it your opinion that Mr. Foster suffered a loss of earning \ncapacity? \n  A.  Yes.   \nQ.  Do you mind explaining that – why – do you mind \nexplaining your basis for that to the court? \nA.  Sure.  So basically when we look at loss of earnings \ncapacity, we look at a number of different factors and those I \nhave outlined on page six and the top of page seven in my \nreport....So before his injury, he did like medium level work, \nyou know, kind of semiskilled work.  And post-injury, other \nthan Clark, the most generous opinion that’s been offered is \nsedentary-level work.  So he has no past sedentary work and \ntherefore he just can’t access employment or whatever is left \nhe’s just not going to be competitive for because he doesn’t \nhave the skills to do it.... \nQ.  In your review of the records in this case, did you notice \nany other ailment or condition that was the major cause of Mr. \nFoster’s inability to return to the workplace? \nA.  No.  And I have his pre-event medical history outline on \npage two.  Again, at the time of his injury, he’s 65 years old \ndoing a pretty physically demanding job.  I mean, working with \npeople with disabilities is pretty physically demanding, and the \nonly thing that I really see is he had hypertension, which lots \nof people work with, so, no, I don’t think there was – I don’t \nthink that there was a pre-event medical history factor that \ncaused him to go out of the labor market.   \n\nFOSTER - H103080  20\n  \n \n \n \n The respondents’ attorney cross-examined Dr. Owen: \nQ.  Of course if someone is not looking for work, they’re not \ngoing to find work, are they? \nA.  True.  I agree.... \nQ.  And then I think you’ve also stated your own opinion now \nthat you think Mr. Foster is unable to return to work? \nA.  I think the most likely scenario, the judge has to determine \nwhat happens next, I think the most likely vocational scenario \nis the one that has already been occurring for five years and \ngiven his – you know, his age, his education, his work \nbackground, his ongoing health complaints, the opinions from \nhis treating doctor, his lack of computer skills, his lack of \nperforming, you know, sitdown, sedentary type work, I don’t \nthink he ever goes back to work, that’s my opinion.... \n \n A hearing was held on September 29, 2025.  The claimant testified \nthat he was not physically able to return to work.  The claimant testified on \ndirect examination: \nQ.  Out of an eight-hour workday, what do you think the most \nyou could stand would be? \nA.  Maybe a couple of hours, maybe, of trying to do \nsomething.  I’ve got to try to function.  If I sit down and don’t \ndo nothing, I will die. \nQ.  All right.  What is the longest you can stand before you \nhave to sit down, do you think? \nA.  Maybe in the kitchen, maybe 10 minutes, 15 at the tops.   \nQ.  What do you think the furthest you could walk is? \nA.  No more than 100 feet, maybe.... \nQ.  What do you think the most you could lift is? \nA.  Right now, maybe 10, maybe 15 pounds, and that would \nbe a strain on me.... \nQ.  Now, these physical limitations that we just walked \nthrough, did you have any of these limitations before? \nA.  No.  I was perfect in every way just about.   \n \n\nFOSTER - H103080  21\n  \n \n \n An administrative law judge filed an opinion on December 23, 2025.  \nThe administrative law judge found that the claimant failed to prove he was \nentitled to permanent total disability benefits.  The administrative law judge \nfound that the claimant that the claimant failed to prove he was entitled to \npermanent partial disability benefits “for loss in wage earning capacity.”  \nThe claimant appeals to the Full Commission and the respondents cross-\nappeal. \nII.  ADJUDICATION \n     The wage-loss factor is the extent to which a compensable injury \nhas affected the claimant’s ability to earn a livelihood.  Grimes v. North Am. \nFoundry, 316 Ark. 395, 872 S.W.2d 59 (Ark. 1994).  Ark. Code Ann. §11-9-\n522(Repl. 2012) provides, in pertinent part: \n(b)(1)  In considering claims for permanent partial disability \nbenefits in excess of the employee’s percentage of permanent \nphysical impairment, the Workers’ Compensation Commission \nmay take into account, in addition to the percentage of \npermanent physical impairment, such factors as the \nemployee’s age, education, work experience, and any other \nmatters reasonably expected to affect his or her future earning \ncapacity.   \n(2)  However, so long as an employee, subsequent to his or \nher injury, has returned to work, has obtained other \nemployment, or has a bona fide and reasonably obtainable \noffer to be employed at wages equal to or greater than his or \nher average weekly wage at the time of the accident, he or \nshe shall not be entitled to permanent partial disability benefits \nin excess of the percentage of permanent physical impairment \nestablished by a preponderance of the medical testimony and \nevidence.   \n\nFOSTER - H103080  22\n  \n \n \n(c)(1)  The employer or his or her workers’ compensation \ninsurance carrier shall have the burden of proving the \nemployee’s employment, or the employee’s receipt of a bona \nfide offer to be employed, at wages equal to or greater than \nhis or her average weekly wage at the time of the accident.   \n \n Ark. Code Ann. §11-9-519(Repl. 2012) provides, in pertinent part: \n \n(e)(1)  “Permanent total disability” means inability, because of \ncompensable injury or occupational disease, to earn any \nmeaningful wages in the same or other employment.   \n(2)  The burden of proof shall be on the employee to prove \ninability to earn any meaningful wage in the same or other \nemployment.   \n \n A.  Permanent Total Disability \nAn administrative law judge found in the present matter, “2.  \nClaimant has failed to prove by a preponderance of the evidence that he is \nentitled to permanent total disability benefits pursuant to A.C.A. §11-9-519.”  \nThe Full Commission affirms this finding.   \nThe claimant is age 71 with only a high school education.  The \nclaimant’s employment history primarily involves work in correctional \ninstitutions and private security.  The claimant eventually became employed \nwith the respondents, Booneville Human Development Center.  The \nclaimant testified that he provided personal care to clients, which included \nbathing, shaving, and dental hygiene.  The claimant’s work duties also \nrequired occasional manual labor such as mopping and sweeping.   \nThe parties stipulated that the claimant “sustained a compensable \ninjury” on or about July 31, 2020.  The claimant contracted COVID-19 in the \n\nFOSTER - H103080  23\n  \n \n \ncourse and scope of his employment with the respondents.  The claimant \ntestified that he did not return to work for the respondents after July 31, \n2020.  A physician’s diagnosis on August 8, 2020 included “Pneumonia due \nto COVID-19 virus (Primary).”  The claimant’s testimony indicated that, as a \nresult of his compensable injury, he was hospitalized through approximately \nOctober 2020.  Dr. Schwarz diagnosed “Paroxysmal atrial fibrillation” on \nFebruary 1, 2021.   \nThe respondents terminated the claimant’s employment effective \nNovember 30, 2021.  A representative of the respondent-employer informed \nthe claimant on that date, “Your termination has been coded ‘Involuntary’ \nbased on an internal investigation.”  The record indicates that the claimant \ndid not complete a “Background Check” requested by the respondents.  \nThe claimant participated in a Functional Capacity Evaluation on April 26, \n2022.  It was concluded that the claimant’s effort during the Functional \nCapacity Evaluation was “unreliable,” and the claimant was released to “the \nSEDENTARY classification of work.”  The claimant was also assigned a \n“10% Whole Person Impairment” due his post-injury respiratory condition.  \nThe claimant testified that his lungs “were scarred real bad” as a result of \nthe compensable injury and that he suffered from chronic shortness of \nbreath.  The respondents accepted the 10% rating assigned on April 26, \n2022.   \n\nFOSTER - H103080  24\n  \n \n \nDr. Roberson opined on June 17, 2022, “I do not believe the patient \nwill be able to return to work and should strongly consider retirement at this \ntime.”  However, Dr. Clark opined on September 26, 2022 that the claimant \ncould return to “Regular Duty.”  The claimant testified at a hearing held \nDecember 6, 2022 that he had not returned to work because “I am not \nphysically able.”  Tanya Rutherford Owen, a vocational rehabilitation \nconsultant, stated on March 17, 2025 that the claimant was “unemployable” \nand had sustained “a total loss of earning capacity.”  Dr. Owen testified at a \nsubsequent deposition that the claimant had “no transferable skills” with \nwhich to secure employment.  Dr. Owen stated on cross-examination, “I \ndon’t think he ever goes back to work, that’s my opinion.”   \nThe Full Commission finds that the claimant did not prove he was \npermanently totally disabled in accordance with Ark. Code Ann. §11-9-\n519(e)(1)(Repl. 2012).  The claimant did not prove by a preponderance of \nthe evidence that he was unable “to earn any meaningful wages in the \nsame or other employment” in accordance with Ark. Code Ann. §11-9-\n519(e)(2)(Repl. 2012).  We recognize the significant physical limitations that \nhave confronted the claimant following the compensable injury that \noccurred on or about July 31, 2020.  The respondents terminated the \nclaimant’s employment effective November 30, 2021.  The claimant’s \ntermination was at least partially related to his failure to complete a \n\nFOSTER - H103080  25\n  \n \n \nrequested Background Check.  The evidence also demonstrates that the \nclaimant is now unable to perform his prior work duties as a result of his \npermanent physical condition.  However, unfortunately the claimant has \nprovided no meaningful effort to secure appropriate gainful employment at \nany time following the compensable injury.  The claimant testified that he is \nable to drive and occasionally serves as a pastoral assistant at his local \nchurch.  The claimant’s lack of interest in returning to appropriate gainful \nemployment impedes the Commission’s full assessment of the claimant’s \nwage-loss disability.  City of Fayetteville v. Guess, 10 Ark. App. 313, 663 \nS.W.2d 946 (1984).  The Full Commission finds in the present matter that \nthe claimant did not prove he was permanently totally disabled.   \nB.  Wage-loss Disability \nAn administrative law judge found in the present matter, “3.  \nClaimant has failed to prove by a preponderance of the evidence that he is \nentitled to permanent partial disability benefits as a result of the \ncompensable injury for loss in wage earning capacity.”  The Full \nCommission does not affirm this finding.  It is the Full Commission’s duty to \nenter findings in accordance with the preponderance of the evidence and \nnot on whether there is substantial evidence to support the administrative \nlaw judge’s findings.  Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 \nS.W.2d 402 (1983).  Preponderance of the evidence means the evidence \n\nFOSTER - H103080  26\n  \n \n \nhaving greater weight or convincing force.  Metropolitan Nat’l Bank v. La \nSher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).  When deciding \nany issue, the Commission shall determine whether the party having the \nburden of proof on the issue has established it by a preponderance of the \nevidence.  Ark. Code Ann. §11-9-705(a)(3)(Repl. 2012).  The Full \nCommission enters its own findings in accordance with the preponderance \nof the evidence.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 \nS.W.2d 348 (1990).   \nThe Full Commission finds in the present matter that the claimant \nproved he sustained wage-loss disability in the amount of 15%.  The \nclaimant is of relatively advanced age at 71 and has only a high school \neducation.  The claimant’s employment history consists primarily of \ncorrections and security work.  The parties stipulated that the claimant \n“sustained a compensable injury” on July 31, 2020.  The claimant \ncontracted COVID-19 resulting from his work for the respondents and was \nhospitalized through approximately October 2020.  The claimant was \nprovided “Director’s Leave pay” through January 8, 2021.  The respondents \nprovided temporary total disability benefits beginning January 9, 2021.  A \nHuman Resources Specialist informed the claimant on August 16, 2021, \n“You are due for your five-year background checks.  Please fill out the \nattached forms and bring back to Human Resources by Friday, September \n\nFOSTER - H103080  27\n  \n \n \n10, 2021 along with your driver’s license or photo ID.”  The claimant \ntestified, “They sent me some papers to fill out, which I didn’t understand \nthem, and I called to personnel and talked to a lady in personnel....I was \nfollowing orders.  Other than that, I didn’t know nothing about all that \npaperwork.”  The respondents terminated the claimant’s employment \neffective November 30, 2021.  The respondents did not inform the claimant \non November 30, 2021 that his termination was related to purported \n“Background Checks.”  Instead, the respondents told the claimant his \ntermination was “based on an internal investigation.”   \nThe evidence before the Commission does not demonstrate that the \nrespondents proved they extended a “bona fide and reasonably obtainable \noffer to be employed at wages equal to or greater than” the claimant’s \naverage weekly wage at the time of the claimant’s compensable injury.  \nThere is no probative evidence demonstrating that the respondents have \noffered the claimant an appropriate employment position within his \npermanent restrictions.  In order to bar wage-loss disability in accordance \nwith Ark. Code Ann. §11-9-522(b)(2)(Repl. 2012) et seq., there must be an \nactual offer of employment made by the employer to the employee.  Hope \nSch. Dist. v. Wilson, 2011 Ark. App. 219, 382 S.W.3d 782, citing Cross v. \nCrawford County Mem’l Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996).  \nIn the present matter, the Full Commission finds that the respondents’ \n\nFOSTER - H103080  28\n  \n \n \nrequest for the claimant to complete a Background Check cannot be \ninterpreted as a legitimate “offer of employment” contemplated by the \nstatute.  Moreover, the Commission notes that the respondents terminated \nthe claimant’s employment effective November 30, 2021, while the claimant \nremained within his healing period and was totally incapacitated from \nearning wages.  The claimant did not reach the end of his healing period \nuntil April 26, 2022.   \nThe claimant in the present matter is advancing in age at 71.  He has \nonly a 12\nth\n grade education and a history of employment primarily in \ncorrections and security.  The claimant now has significant permanent \nphysical limitations as a result of the July 31, 2020 compensable injury.  \nThe claimant sustained an atrial fibrillation as a natural consequence of the \ncompensable injury.  The claimant sustained a 10% permanent physical \nimpairment for a permanent respiratory condition, accepted and paid by the \nrespondents.  The respondents terminated the claimant’s employment \neffective November 30, 2021, and the evidence does not demonstrate that \nthere was ever a bona fide offer of employment in accordance with Ark. \nCode Ann. §11-9-522(Repl. 2012).  However, the record shows that the \nclaimant has made no effort to return to appropriate gainful employment \nfollowing the compensable injury.  The claimant’s lack of interest in \nreturning to appropriate gainful employment impedes the Commission’s full \n\nFOSTER - H103080  29\n  \n \n \nassessment of the claimant’s wage-loss disability.  City of Fayetteville, \nsupra.  The Full Commission finds that the claimant proved he sustained \nwage-loss disability in the amount of 15%.   \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove he was permanently totally disabled.  The \nclaimant proved that he sustained wage-loss disability in the amount of \n15%.  The claimant proved that the compensable injury sustained on July \n31, 2020 was the major cause of his 15% wage-loss disability.  The \nrespondents did not prove there was a bona fide offer of employment, and \nthe respondents did not prove that the claimant’s 15% wage-loss award \nshould be barred pursuant to Ark. Code Ann. §11-9-526(Repl. 2012).  The \nclaimant’s attorney is entitled to fees for legal services in accordance with \nArk. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing in part on appeal, \nthe claimant’s attorney is entitled to an additional fee of five hundred dollars \n($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n \n\nFOSTER - H103080  30\n  \n \n \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved by a preponderance of the evidence that he is entitled to \nwage loss disability benefits in the amount of fifteen percent (15%). \n When a claimant sustains an injury not scheduled in Ark. Code Ann. \n§ 11-9-521, permanent disability benefits are controlled by Ark. Code Ann. \n§ 11-9-522(b)(1), which states:  \nIn considering claims for \npermanent partial disability \nbenefits in excess of the \nemployee's percentage of \npermanent physical \nimpairment, the Workers' \nCompensation Commission \nmay take into account, in \naddition to the percentage \nof permanent physical \nimpairment, such factors as \nthe employee's age, \neducation, work experience, \nand other matters \nreasonably expected to \naffect his or her future \nearning capacity. \n \n Other factors may include but are not limited to motivation to return \nto work, post-injury earnings, credibility, and demeanor.  Curry v. Franklin \nElectric, 32 Ark. App. 168, 798 S.W.2d 130 (1990).  \nTherefore, when a claimant has been assigned an anatomical \nimpairment rating to the body as a whole, the Commission may increase \n\nFOSTER - H103080  31\n  \n \n \nthe disability rating and find a claimant permanently disabled based upon \nwage-loss factors.  Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 \nS.W.3d 449 (2005).  \nThe wage-loss factor is the extent to which a compensable injury has \naffected the claimant's ability to earn a livelihood.  Enterprise Products \nCompany v. Leach, 2009 Ark. App. 148, 316 S.W.3d 253 (2009).  \nOur courts also consider the claimant’s motivation to return to work \nsince lack of interest or negative attitude in pursuing employment impedes \nthe assessment of the claimant's loss of earning capacity.  Logan County v. \nMcDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005).  \nThe Commission may use its own superior knowledge of industrial \ndemands, limitations, and requirements in conjunction with the evidence to \ndetermine wage-loss disability.  Taggart v. Mid America Packaging, 2009 \nArk. App. 335, 308 S.W.3d 643 (2009). \nAny determination of the existence or extent of physical impairment \nshall be supported by objective and measurable physical or mental \nfindings.  Ark. Code Ann. § 11-9-704(c)(1)(B). Pursuant to Arkansas Code \nAnnotated section 11-9-102(4)(F)(ii)(a), “[p]ermanent benefits shall be \nawarded only upon a determination that the compensable injury was the \nmajor cause of the disability or impairment.  A finding of major cause shall \n\nFOSTER - H103080  32\n  \n \n \nbe established according to the preponderance of the evidence. Ark. Code \nAnn. § 11-9-102(14)(B). \nHere, the ALJ opined:  \n[i]t is unnecessary for me to reach a \ndecision on whether a bona fide job offer \nwas extended or whether this claim would \nfail due to claimant's lack of motivation to \nreturn to the job market, because \nclaimant has failed to meet the threshold \nrequirement of proving his compensable \nrespiratory condition is the major cause of \nany wage loss disability. \n \nI agree.  The issue of major cause for any impairment related to the \nclaimant’s heart condition was decided by the Court of Appeals and is res \njudicata.  The Court of Appeals determined the claimant failed to establish \nmajor cause for impairment related to his heart condition.  The claimant \nsubmitted no new medical records, no new physician opinions, and no new \nimpairment evidence to establish that his respiratory impairment is the \nmajor cause of his inability to work.  Even if we accept Dr. Roberson’s \nopinion that the claimant is unable to return to work, Dr. Roberson attributed \nclaimant's decline to multiple conditions—\"diastolic heart failure, pulmonary \nhypertension, paroxysmal A. fib and respiratory failure\"—without stating the \ncompensable respiratory condition is the major cause of his inability to earn \nwages. \n\nFOSTER - H103080  33\n  \n \n \nBecause the claimant has failed to submit any medical evidence \nestablishing that his compensable respiratory condition is the major cause \nof his inability to earn wages, he has failed to meet his burden of proving by \nthe preponderance of the evidence that he is entitled to wage loss disability \nbenefits. \nAccordingly, for the reasons stated above, I respectfully dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":52629,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H103080 JIMMY FOSTER, EMPLOYEE CLAIMANT BOONEVILLE HUMAN DEVELOPMENT CENTER, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 15, 2026","outcome":"granted","outcomeKeywords":["granted:2","denied:2"],"injuryKeywords":["back","strain"],"fetchedAt":"2026-05-19T22:29:43.507Z"},{"id":"full_commission-H501091-2026-05-15","awccNumber":"H501091","decisionDate":"2026-05-15","decisionYear":2026,"opinionType":"full_commission","claimantName":"Kristi Hill","employerName":"Incite Rehab, LLC","title":"HILL VS. INCITE REHAB, LLC AWCC# H501091 May 15, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Hill_Kristi_H501091_20260515.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Hill_Kristi_H501091_20260515.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H501091 \n \nKRISTI HILL, \nEMPLOYEE \n \nCLAIMANT \nINCITE REHAB, LLC,  \nEMPLOYER \n \nRESPONDENT \nCCMSI, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 15, 2026  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nNovember 12, 2025.  The administrative law judge found that the claimant \nfailed to prove she sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant proved \nby a preponderance of the evidence that she sustained a compensable \ninjury.  The claimant proved that she was entitled to reasonably necessary \nmedical treatment, including surgery performed by Dr. Tobey.  The claimant \nproved that she was entitled to temporary total disability benefits beginning \nFebruary 8, 2025 until a date yet to be determined.     \n\nHILL - H501091  2\n  \n \n \nI.  HISTORY \n Kristi Hill, now age 58, testified that she had been employed with the \nrespondents, Incite Rehab, LLC.  The claimant testified on direct \nexamination: \n  Q.  How long had you been employed there? \n  A.  At Ashton Place, for 20 years.  Incite, since 2011. \nQ.  So was Ashton Place and in the year 2025 Incite, was that \nall part of the same employment or was that separate \nemployment or what? \nA.  Just a different rehab company, Incite, in 2011.   \nQ.  So you were doing the same work all that time? \nA.  Yes, sir.   \nQ.  And Incite came in and took over your predecessor \nemployer? \nA.  Yes.   \nQ.  What were your job duties? \nA.  Transferring patients, standing balance activities, gait \ntraining, and therapeutic exercise.   \n \n The claimant testified that she had suffered from bilateral arm pain \nafter “I jumped a little ditch in a creek and I slipped.  I didn’t fall and hit the \nground, but my hands just kind of hit the bank...And probably a week later \nis when the pain started and it was just aggravating pain.\"   \nDr. Steve-Felix Belinga noted in September 2023 that the claimant \nwas complaining of “burning, stabbing, pain, and weakness on both of her \nhands/arms.”  A Neurography & Electromyography Report indicated, \n\"Unremarkable NCV of the Bilateral Upper & Lower Extremities[.]  \nUnremarkable EMG of the Right Upper & Lower Extremities[.]”   \n\nHILL - H501091  3\n  \n \n \nDr. Belinga reported in October 2023, “Patient most likely has CTS \nand CuTS, made worse after her recent fall.  EMG/NCV was WNL....She \nwas placed on steroids recently and that is the only relief she gets.”   \nDr. Kaleb Brent Smithson reported in November 2023, “Kristi R Hill \nreturns today for follow-up after carpal tunnel injections.  Reports complete \nrelief of numbness and tingling....She is still having some aching pain \nlocalized to the shoulder region.”   \nAn MRI of the claimant’s right shoulder was taken on December 10, \n2024: \n Reason for Exam:  Degenerative joint disease, shoulders.... \n COMPARISON:  Radiographs November 14, 2024.... \nIMPRESSION:  1.  Early, mild acromioclavicular joint \ndegenerative changes.  There is fluid and debris/synovial \nthickening in the subacromial/subdeltoid bursa.  The fluid is \ncompatible with bursitis if there has been no recent injection.   \n2.  Supraspinatus tendinosis with a few small foci of \nsuspected chronic, low-grade partial tearing and scarring.  \nThere are also a few thin, low-grade partial-thickness tears \nalong the medial insertion/articular surface of the infraspinatus \ntendon.   \n3.  Chrondromalacia along the right glenohumeral joint, with \nsmall spurs along the margins of the glenoid.  There is a small \nto moderate right glenohumeral joint effusion.   \n4.  Degeneration of the labrum, with a least degenerative \nfraying.   \n5.  Nonspecific pericapsular edema along the superior aspect \nof the right glenohumeral joint, with edema along the rotator \ninterval.  There is no thickening of the joint capsule. \n6.  Several bulky, right axillary lymph nodes, nonspecific.  \nCorrelate with the patients history (any history of a recent \nillness?  History of malignancy?).   \n \n\nHILL - H501091  4\n  \n \n \n The parties stipulated that the employment relationship existed on \nFebruary 7, 2025.  The claimant testified on direct examination: \nQ.  Did anything unusual happen to you on February 7\nth\n of \n2025 in the course of your employment?  Did you have an \naccident? \nA.  Yes.   \nQ.  Tell us about the accident.   \nA.  My patient was in a power chair and they have the foot \nplate and I moved his foot plate to put his feet on the floor and \nI took a step to the right and at the same time he had placed \nhis left foot out blocking my step, so I started losing my \nbalance and falling to the right. \nQ.  And where did you fall to? \nA.  The window next to where I was working on the mat, by \nthe mat[.]... \nQ.  So you tried to grab the wall with your left hand because \nyou were falling to the right? \nA.  Yes.   \nQ.  And then you hit something with your right shoulder? \nA.  Yes.   \nQ.  And what is it that you hit? \nA.  The outside of my right shoulder. \nQ.  What part of the building did you hit? \nA.  The sheetrock, the frame of the windowsill.... \nQ.  So after this incident, how long did you work following that \nincident? \nA.  Less than 10 minutes....I tried to continue my job.  I tried \nto shake it off and I was walking that lady and I was trying to \npull her chair and my arm just kept burning and burning.... \nQ.  At some point did your arm get worse or did it just stay the \nsame or what? \nA.  It got worse.  It got worse in the next few minutes.  And \nthen when I was trying to continue my job is when I realized \nthat I can’t do this.   \nQ.  And who sent you to the doctor? \nA.  My human resource lady when I called her.   \n \n According to the record, Dr. Terry Clark examined the claimant at \nOccupational Medicine-Fort Smith on February 7, 2025: \n\nHILL - H501091  5\n  \n \n \nKristi tripped over a patient’s foot hitting the window and wall \nwith right shoulder.... \nKristi’s primary problem is pain located in the right scapula, \nright shoulder.  She describes it as stabbing, aching.  The \nproblem began on 2/7/2025.  Kristi says that it seems to be \nconstant.  She has noticed that it is made worse by letting arm \nhang, moving shoulder.  Her pain level is 5.  She fell into the \nwall, striking the lateral aspect of the right shoulder.... \nRight Shoulder:  Bruising is not present.  A deformity is not \npresent.  TTP laterally and posteriorly, over the lateral edge of \nthe scapula, \nDecreased ROM on abduction, Negative empty can.... \nIMAGING STUDIES \nXRAY – Right Shoulder; No acute findings.   \n \n Dr. Clark diagnosed “1.  Contusion of right shoulder, initial \nencounter” and “2.  Unspecified sprain of right shoulder joint, initial \nencounter[.]”  Dr. Clark stated, “The cause of this problem is related to work \nactivities....Kristi’s recommended work status is Restricted Duty.  The \neffective date for this work status is 2/7/2025.” \n The claimant testified that she did not return to work for the \nrespondents after February 7, 2025.  The record contains an Orthopedic \nSurgery Outpatient Note dated March 31, 2025: \n57-year-old female here for eval bilateral shoulders.  She \nreports pain for about 2 years after she was trying to jump a \ncreek and slipped and landed on her hands.  She did not have \npain for a couple days but then started having pain in both her \nshoulders....She also reports catching and clicking of the \nshoulders....She had MRIs in December but reports she had \nan injury at work in February and [is] seeing workman’s comp \nfor that on her right shoulder.  And [is] supposed to have an \nMRI arthrogram on Thursday regarding that.  Her worker’s \ncomp provider started her in physical therapy but she reports \nthat is only making her pain worse.  She has not had any \n\nHILL - H501091  6\n  \n \n \ninjections and only gone to couple of physical therapy \nappointments. \nX-rays show downsloping acromion[.]... \n \n An APRN assessed “Bilateral shoulder pain,” “Rotator cuff tear on \nthe right, degenerative,” “Degenerative labral tear on the right,” and “Labral \ntear on the left.”  The APRN noted, “she is seeing worker’s comp for her \nright shoulder and getting an MRI arthrogram Thursday.  I discussed she \nwould need to follow up with worker’s comp and proceed with their \nrecommendations.  As we can not take over a worker’s comp issue.  We \nwill see her back PRN.” \n The claimant followed up with Dr. Clark on April 7, 2025: \nKristi tripped over a patient’s foot hitting the window and wall \nwith right shoulder.... \nThe problem began on 2/7/2025....MRI (4/3/2025) shows a \nfull-thickness tear of the supraspinatus tendon.... \n \n Dr. Clark’s diagnosis on April 7, 2025 was “1.  Complete rotator cuff \ntear or rupture of right shoulder, (supraspinatus)[.]...The cause of this \nproblem is related to work activities....Kristi’s recommended work status is \nRestricted Duty.  The effective date for this work status is 4/7/2025.”   \n Dr. Jonathan Lane Tobey examined the claimant on April 30, 2025: \n57-year-old female presents for initial evaluation of her right \nshoulder.  She works at a physical therapy clinic and had a fall \non 2/7/2025 while trying to hold the patient resulting in her \nhitting the wall.  [She] has had significant right shoulder pain \nsince that time.  This is a Worker’s Comp. injury.  Patient \nstates she is only having 1 or 2 sessions of physical therapy.  \nShe has not had any previous injections in the shoulder.  She \n\nHILL - H501091  7\n  \n \n \nhad an MR arthrogram demonstrating a rotator cuff tear and \nwas referred to the orthopedic clinic.... \nImaging:  Right shoulder radiographs reviewed and \ninterpreted by myself are negative for acute fracture or \nsignificant degenerative change. \nRight shoulder MR arthrogram reviewed and interpreted by \nmyself demonstrates significant fluid extravasation through \nthe rotator interval.  There is significant signal around the \nsuperior labrum consistent with a SLAP tear.  No obvious \nrotator cuff tear.  Of note the radiology report demonstrates \nfull-thickness tear of the supraspinatus.  I disagree with this \nassessment as this appears to be the rotator interval and not \nthe rotator cuff tendon.... \nPatient’s history and exam is consistent with a SLAP tear of \nher right shoulder as well as biceps tendinitis and subacromial \nimpingement.  I do not see an obvious rotator cuff tear nor \ndoes her exam appear consistent with rotator cuff tear.  I \nrecommend patient starting in physical therapy for range of \nmotion and strengthening....Patient was given a work note for \nno lifting greater than 10 pounds or overhead activities on the \nright upper extremity.   \n \n Dr. Tobey diagnosed “Acute pain of right shoulder,” “Superior glenoid \nlabrum lesion of right shoulder, initial encounter,” and “Biceps tendinitis of \nright shoulder.” \n The record contains a Physical Therapy Evaluation dated May 6, \n2025.  The “Objective” portion of the Physical Therapy Evaluation, which \nwas based on Right Shoulder Palpation, indicated “Abnormal:  Muscle.”  \nThe claimant was provided a program of physical therapy visits.             \n Dr. Shane McAlister corresponded with Nichole Sanders on May 15, \n2025 and stated in part: \n\nHILL - H501091  8\n  \n \n \nYou have asked me to review medical records and diagnostic \nimaging on Ms. Kristi Hill (dob 03/16/1968) and provide you \nwith a written report of the findings contained therein.... \nThe first office visit record submitted is dated 2-7-2025 and is \nfrom Occupational Medicine clinic.  Here, Ms. Hill saw Dr. \nTerry Clark for right shoulder pain complaints after reporting a \ntrip and fall incident at work that day.  She reportedly tripped \nover a patient’s foot and hit her right side laterally against a \nwall.  Her pain location was noted to be the lateral aspect of \nher right scapula.  On physical examination she was tender \nalong the lateral edge of the right scapula.  No bruising was \nfound.  Plain films of the right shoulder were obtained and \ninterpreted as no acute traumatic injury.  She was diagnosed \nwith a contusion and sprain and prescribed Tylenol and Advil.  \nSprains/contusions are diagnosed with patient pain \ncomplaints, but no objective finding of tissue damage.... \nAfter reviewing these records and the submitted diagnostic \nimaging, I do not see any evidence of any acute traumatic \ninjury of the right shoulder from the fall of 2-7-2025, but rather \nevidence of old pathology that was well seen on the \nDecember 2024 right shoulder MRI scan.  The findings do \ncorrelate with the physical examination findings of Mr. Tobey \non his office visit of 4-30-2025 (I do not see that he was made \naware of the older injuries, medical care sought or the \ndiagnostic imaging of both shoulders)..  Correlation with the \noffice visits after the fall in the creek two years before should \nhelp clarify her bilateral shoulder symptom that led to the MRI \nscans of both shoulders in December 2024.... \n \n A claims specialist corresponded with the claimant on May 29, 2025: \nCCMSI administers the Workers’ Compensation program for \nIncite Rehab, LLC.   \nWe have investigated the claim and have determined that \nyour claim does not meet the criteria for a compensable work \ninjury under the Act.  Therefore your claim will be respectfully \ndenied.   \nIf you have group insurance, you may file this letter with \nthem to cover the medical charges that are not covered \nunder workers’ comp.   \n \n\nHILL - H501091  9\n  \n \n \n A physical therapist noted on June 6, 2025, “Pt reports that she was \ninformed today that her ortho appt has been cancelled by Workman’s Comp \nand she has been dropped from Workman’s comp but unsure why.  Pt \nreports she is trying to get in contact with Workman’s comp currently.”  \n The respondent-employer’s Director of Human Resources \ncorresponded with the claimant on July 28, 2025: \nI am in receipt of a note from your provider, Jonathan Lane \nTobey, MD, stating that you “may return to work with lifting no \nmore than 10 pounds on the right upper extremity and no \noverhead activities right upper extremity.”  As you know, your \nposition as a Physical Therapist Assistant requires that, as an \nessential function of your position, you move and lift patients \nin an amount exceeding the restriction provided by your \nprovider.  There is not a reasonable accommodation available \nthat would allow you to perform the essential functions of your \nposition with the restriction you currently have.  Accordingly, \nyou are not eligible to return to your position at this time and, \nthus, your position with Incite Rehab is terminated \nimmediately.   \n \n A pre-hearing order was filed on August 20, 2025.  The claimant \ncontended that she “sustained a compensable injury to her right shoulder \non February 7, 2025 and was provided authorized medical treatment from \nthat date until on or about May 29, 2025.  The Claimant contends that she \nis entitled to temporary total disability benefits from when they stopped until \na date yet to be determined, as well as additional medical treatment.”  The \nclaimant contended that “since Respondent is controverting this claim in its \nentirety, his attorney is entitled to a fee on all indemnity benefits.”     \n\nHILL - H501091  10\n  \n \n \n The respondents contended that “while this claim was initially \naccepted as compensable, based on documentation received, the claimant \ndid not suffer a compensable injury under the Arkansas Workers’ \nCompensation Act.  In light of this, it is Respondents’ position that Claimant \nis not entitled to benefits associated with this claim.  Alternatively, in the \nevent compensability is found, benefits were paid to the claimant through \n9/21/25, and they should be entitled to a credit for benefits paid prior to \ndenial of the claim.  Additionally, the claimant received short-term disability \nbenefits and Respondent may have a credit for those benefits paid in the \nevent compensability is found in this matter.”   \n The parties agreed to litigate the following issues: \n1.  Compensability of injury to right shoulder on February 7, \n2025. \n  2.  Related medical. \n3.  Temporary total disability benefits from date last paid \nthrough a date yet to be determined.   \n4.  Respondents’ entitlement to a credit for benefits paid prior \nto denial of claim and for short-term disability benefits paid. \n5.  Attorney’s fee.   \n \n Dr. Tobey performed surgery on September 4, 2025:  “Right \nshoulder arthroscopic long head biceps tenodesis[.]  Right shoulder \narthroscopic distal clavicle excision[.]  Right shoulder arthroscopic extensive \ndebridement including superior labral tear, anterior labral tear, extensive \nglenohumeral synovitis, subacromial bursal tissue, anterior inferior edge of \nthe acromion.”  Dr. Tobey reported the following Findings at Surgery: \n\nHILL - H501091  11\n  \n \n \nRight shoulder diagnostic arthroscopy demonstrated \nextensive glenohumeral synovitis.  Large unstable superior \nlabrum tear with extension into the anterior labrum.  No \nsubscapularis tear.  No loose bodies in the axillary recess.  \nPosterior labrum intact.  Glenohumeral cartilage intact.  \nLipstick lesion long of the biceps tendon.  No articular sided \nsupraspinatus or posterior cuff tear.  Subacromial space with \nextensive subacromial bursal tissue.  No bursal sided cuff \ntear.  Small anterior-inferior hooking acromion[.]   \n \n After a hearing, an administrative law judge filed an opinion on \nNovember 12, 2025.  The administrative law judge found that the claimant \nfailed to prove she sustained a compensable injury.  The administrative law \njudge therefore denied and dismissed the claim.  The claimant appeals to \nthe Full Commission. \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.]   \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \n\nHILL - H501091  12\n  \n \n \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to meet her burden of proving by a preponderance of \nthe evidence that she suffered a compensable injury to her right shoulder \non February 7 2025.”  The Full Commission finds that the claimant proved \nby a preponderance of the evidence that she sustained a compensable \ninjury to her right shoulder. \n The claimant testified that she had been employed with the \nrespondent-employer’s predecessor for 20 years and then the respondents \nsince 2011.  The claimant testified that she had previously suffered from \nbilateral arm pain after she “jumped in a little ditch in a creek and I slipped.”  \nSubsequent electrodiagnostic testing was normal.  An MRI of the claimant’s \nright shoulder in December 2024 showed degenerative changes which \nincluded low-grade partial-thickness tears and fraying.   \n\nHILL - H501091  13\n  \n \n \n The parties stipulated that the employment relationship existed on \nFebruary 7, 2025.  The claimant testified that she sustained a work-related \naccidental injury that date.  The claimant testified that she slipped, fell, and \nhit the outside of her right shoulder on the frame of a windowsill.  The \nclaimant, who the Full Commission finds was a credible witness, testified \nthat her condition quickly worsened and that the respondent-employer’s \nHuman Resources manager directed her to seek medical treatment. \n The claimant received authorized medical treatment from an \noccupational physician, Dr. Clark, beginning February 7, 2025.  Dr. Clark \ndiagnosed “1.  Contusion of right shoulder” and “2.  Unspecified sprain of \nright shoulder joint.”  The Arkansas Court of Appeals has held on several \noccasions that a contusion is an objective medical finding.  See Northwest \nArk. Cmty. Coll. v. Migliori, 2018 Ark. App. 286, 549 S.W.3d 399.  See also \nEllis v. J.D. & Billy Hines Trucking, Inc., 104 Ark. App. 118, 289 S.W.3d 497 \n(2008), citing Parson v. Ark. Methodist Hosp., 103 Ark. App. 178, 287 \nS.W.3d 645 (2008).     \n   The Full Commission finds in the present matter that Dr. Clark’s \ndiagnosis of “Contusion of right shoulder” was an objective medical finding \nwhich was not within the claimant’s voluntary control.  There were other \nobjective medical findings in the record which established a compensable \ninjury.  Based on an MRI taken April 3, 2025, Dr. Clark reported “a full-\n\nHILL - H501091  14\n  \n \n \nthickness tear of the supraspinatus tendon.”  Dr. Clark’s diagnosis on April \n7, 2025 was “1.  Complete rotator cuff tear or rupture of right shoulder.”  On \nApril 30, 2025, Dr. Tobey diagnosed the objective finding of “Superior \nglenoid labrum lesion of right shoulder, initial encounter.”  A physical \ntherapist also evaluated the claimant on May 6, 2025, and, based on Right \nShoulder Palpation, reported “Abnormal:  Muscle.”  We find that the \nphysical therapist’s physical notation of an abnormal muscle was an \nobjective medical finding which could not come under the claimant’s \nvoluntary control.  Finally, as we have noted, Dr. Tobey performed surgery \non September 4, 2025.  Dr. Tobey’s Findings at Surgery included a “Large \nunstable superior labrum tear with extension into the anterior labrum.”  The \ntreating surgeon’s report of a large unstable superior labrum tear was \nanother objective medical finding establishing a compensable injury. \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that she sustained a compensable injury in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012) et seq.  \nThe claimant proved that she sustained an accidental injury causing \nphysical harm to the right shoulder.  The claimant proved that the injury \narose out of and in the course of employment, required medical services, \nand resulted in disability.  The claimant proved that she injury was caused \nby a specific incident and was identifiable by time and place of occurrence \n\nHILL - H501091  15\n  \n \n \non February 7, 2025.  The claimant also established a compensable injury \nby medical evidence supported by objective medical findings which could \nnot come within the claimant’s voluntary control.  These objective medical \nfindings included contusion of the right shoulder, full-thickness tear of the \nsupraspinatus tendon, rotator cuff tear or rupture of right shoulder, superior \nlabrum glenoid lesion of the right shoulder, abnormal muscle, and large \nunstable superior labrum tear.  The Full Commission finds that these \nobjective medical findings were causally related to the February 7, 2025 \ncompensable injury and were not the result of a prior nonwork-related injury \nor pre-existing condition.   \n Based on our de novo review of the entire record, the Full \nCommission finds that the claimant proved she sustained a compensable \ninjury.  The claimant proved that the medical treatment of record provided \non and after February 7, 2025, including surgery performed by Tobey, was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  The claimant proved that she remained within a \nhealing period and was totally incapacitated from earning wages beginning \nFebruary 8, 2025.  The Full Commission therefore finds that the claimant \nproved she was entitled to temporary total disability benefits beginning \nFebruary 8, 2025 until a date yet to be determined.  See Ark. State Hwy. \nDept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  The \n\nHILL - H501091  16\n  \n \n \nrespondents are entitled to a credit for temporary total disability benefits \nalready paid.  The respondents are also entitled to an appropriate credit in \naccordance with Ark. Code Ann. §11-9-411(Repl. 2012).  The claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. §11-9-715(a)(Repl. 2012).  For prevailing on appeal, the claimant's \nattorney is entitled to an additional fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012).   \n IT IS SO ORDERED.      \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved by a preponderance of the evidence that she sustained a \ncompensable injury on February 8, 2025. \nArkansas Code Annotated section 11-9-102 (4)(A)(i) provides that a \ncompensable injury includes “[a]n accidental injury causing internal or \nexternal physical harm to the body. . . An injury is ‘accidental’ only if it is \n\nHILL - H501091  17\n  \n \n \ncaused by a specific incident and is identifiable by time and place of \noccurrence.”  \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  This, therefore, requires that a claimant establish by a \npreponderance of the evidence:  (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external \nphysical harm to the body which required medical services or resulted in \ndisability or death; (3) medical evidence supported by objective findings \nestablishing an injury as defined in Ark. Code Ann. §11-9-102(16) and; (4) \nthat the injury was caused by a specific incident identifiable by time and \nplace of occurrence.  Ark. Code Ann. § 11-9-102(4)(A)(i). \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\"  Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16).  \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \n\nHILL - H501091  18\n  \n \n \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  The Commission is not required to believe the \ntestimony of the claimant or any other witness but may accept and translate \ninto findings of fact only those portions of the testimony that it deems worthy \nof belief.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 \n(2001). \n In the present case, the claimant has failed to meet her burden of \nproving that she suffered a compensable injury, due to her extensive history \nof degenerative shoulder findings.  After her 2023 fall while jumping across \na creek, the claimant sought treatment with Dr. Steve-Felix Belinga, who \nnoted in September 2023 that the claimant was complaining of “burning, \nstabbing, pain, and weakness on both of her hands/arms.”  The claimant \nreported “aching pain localized to the shoulder region” to Dr. Kaleb \nSmithson in November 2023.  On December 10, 2024, the claimant \nunderwent an MRI of her right shoulder, which revealed, among other \nthings, degenerative joint disease of the shoulders, “fluid and \ndebris/synovial thickening in the subacromial/subdeltoid bursa,” low-grade \npartial thickness tears of the infraspinatus tendon, degeneration of the \nlabrum with degenerative fraying.  \n\nHILL - H501091  19\n  \n \n \n Further, the respondent sought the opinion of Dr. Shane McAlister, a \nradiologist, regarding the claimant’s medical records, including both MRIs. \nDr. McAlister opined as follows: \nAfter reviewing these records and \nthe submitted diagnostic imaging, I \ndo not see any evidence of any \nacute traumatic injury of the right \nshoulder from the fall of 2-7-2025, \nbut rather evidence of old \npathology that was well seen on \nthe December 2024 right shoulder \nMRI scan. The findings do \ncorrelate with the physical \nexamination findings of Dr. Tobey \non his office visit of 4-30-2025. \n \nThere is no evidence in the record beyond the claimant’s own self-\nserving testimony that her treating physicians for her 2025 injury, Dr. Terry \nClark or Dr. Jonathan Tobey were aware of this medical history, which \ninherently renders their findings incomplete.  In fact, Dr. McAlister opines \nthat he believes Drs. Clark and Tobey were not provided with the claimant’s \nearlier imaging, which could potentially alter the claimant’s future care.  Dr. \nMcAlister’s report contains the only evidence of a practitioner reviewing the \nclaimant’s entire history prior to issuing an opinion.  For this reason, Dr. \nMcAlister’s report is entitled to greater weight than those of Dr. Clark and \nDr. Tobey who lacked key information regarding the claimant’s prior injury. \nIt is clear from the record that there was no difference between the \n\nHILL - H501091  20\n  \n \n \nclaimant’s December 10, 2024 and April 3, 2025 MRIs and the claimant’s \nalleged right shoulder injury and subsequent surgery are not supported by \nthe weight of the credible evidence. \nAccordingly, for the reasons stated above, I respectfully dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":30441,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H501091 KRISTI HILL, EMPLOYEE CLAIMANT INCITE REHAB, LLC, EMPLOYER RESPONDENT CCMSI, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 15, 2026","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["carpal tunnel","shoulder","sprain","rotator cuff","back","fracture"],"fetchedAt":"2026-05-19T22:29:43.532Z"},{"id":"full_commission-H204394-2026-05-15","awccNumber":"H204394","decisionDate":"2026-05-15","decisionYear":2026,"opinionType":"full_commission","claimantName":"Johnny Wright","employerName":"Central Moloney, Inc","title":"WRIGHT VS. CENTRAL MOLONEY, INC. AWCC# H204394 May 15, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Wright_Johnny_H204394_20260515.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Wright_Johnny_H204394_20260515.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \nCLAIM NO. H204394 \n \nJOHNNY WRIGHT, EMPLOYEE  CLAIMANT \n  \nCENTRAL MOLONEY, INC., \nSELF-INSURED EMPLOYER                                                RESPONDENT \n \nRISK MANAGEMENT RESOURCES \nTPA                                                                                        RESPONDENT \n \nOPINION FILED MAY 15, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE GUY ALTON WADE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed March 4, 2026. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Commission has jurisdiction over this claim.  \n \n2. The Stipulations as set forth above are reasonable and \nare hereby accepted.  \n \n3. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to vocational \nrehabilitation.  \n \n\nWright-H204394     2 \n   \n \n4. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to additional medical \nbenefits.  \n \n5. Because the claimant has failed to prove that he is \nentitled to any additional indemnity benefits, he is not \nentitled to an attorney’s fee. \n \n We have carefully conducted a de novo review of the entire record \nherein, and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the March 4, 2026 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \nCommissioner Willhite dissents \n  \n\nWright-H204394     3 \n   \n \nDISSENTING OPINION \n \n            After my de novo review of the record, I would concur with the \nAdministrative Law Judge (hereinafter referred to as ‘ALJ’) Opinion finding \nthat the Claimant failed to prove by a preponderance of the evidence that \nhe is entitled to vocational rehabilitation, additional medical treatment or \nattorney’s fees. However, my reasoning for the denial of vocational \nrehabilitation differs from the ALJ.  \n The purpose of Arkansas Code Annotated § 11-9-505 is to “place an \nemphasis on returning the injured worker to work, while still allowing and \nproviding for vocational rehabilitation programs when determined \nappropriate by the commission. Ark. Code Ann. § 11-9-505(d). Arkansas \nCode Annotated § 11-9-505(a)(1) provides:  \nAny employer who without reasonable cause refuses to return \nan employee who is injured in the course of employment to \nwork,  where  suitable  employment  is  available  within  the \nemployee’s physical and mental limitations, upon order of the \nWorkers’ Compensation Commission, and in addition to other \nbenefits, shall be liable to pay to the employee the difference \nbetween benefits received and the average weekly wages lost \nduring the period of the refusal, for a  period not exceeding one \nyear.  \nBefore Arkansas Code Annotated § 11-9-505(a)(1) applies, several \nrequirements must be met:  \n(1) The employee must prove by a preponderance of the evidence \nthat he sustained a compensable injury;  \n\nWright-H204394     4 \n   \n \n(2) That suitable employment which is within his physical and mental \nlimitations is available with the employer;  \n(3) That the employer has refused to return him to work;  \n(4) And, that the employer’s refusal to return him to work is without \nreasonable cause.  \n \nTorrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W .2d 237 (1996).  \n Arkansas Code Annotated § 11-9-505(b)(1) states: \nIn addition to benefits otherwise provided for by this chapter, an \nemployee who is entitled to receive compensation benefits for \npermanent disability and has not been offered an opportunity \nto return to work or re-employment assistance shall be paid \nreasonable  expenses  of  travel  and  maintenance  and  other \nnecessary costs of vocational rehabilitation if the commission \nfinds that the program is reasonable in relation to the disability \nsustained by the employee.  \n The Claimant sustained a compensable injury to his right index and \nmiddle fingers. At the time of his employment with the Respondent, the \nClaimant was an inmate within the Arkansas Department of Correction \nsystem. Claimant’s employment was a part of the Arkansas Department of \nCorrection’s work-release program. After his injury, the Arkansas \nDepartment of Correction’s contract with the Respondent lapsed. The \nRespondent was therefore not able to offer the Claimant employment after \nhe was released at maximum medical improvement on May 15, 2023. \nNevertheless, the Arkansas Department of Correction found employment in-\nline with their work-release program for the Claimant. The Claimant did not \nseek further employment with the Respondent after his injury or after his \nrelease from the Arkansas Department of Correction. Further, the Claimant \n\nWright-H204394     5 \n   \n \nadmitted at the hearing with the ALJ that he has worked at least three \ndifferent jobs since being released.  \n As employment with the Respondent was not available for the \nClaimant due to the Arkansas Department of Correction’s cancellation or \nnon-renewal of Respondent’s contract, I find that the Respondent did not \nrefuse to return an employee who sustained a compensable injury to work. \nTherefore, I find that the Claimant is not entitled to voluntary rehabilitation \nunder Arkansas Code Annotated § 11-9-505(b)(1).  \n \n    _______________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":6292,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204394 JOHNNY WRIGHT, EMPLOYEE CLAIMANT CENTRAL MOLONEY, INC., SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES TPA RESPONDENT OPINION FILED MAY 15, 2026 Upon review before the FULL COMMISSION in Little Rock, Pulask...","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.543Z"},{"id":"alj-H500958-2026-05-14","awccNumber":"H500958","decisionDate":"2026-05-14","decisionYear":2026,"opinionType":"alj","claimantName":"Genesis Taracena-Lopez","employerName":"My Hr Professional Benefits","title":"TARACENA-LOPEZ VS. MY HR PROFESSIONAL BENEFITS AWCC# H500958 May 14, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TARACENA-LOPEZ_GENESIS_H500958_20260514.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TARACENA-LOPEZ_GENESIS_H500958_20260514.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H500958 \n \nGENESIS TARACENA-LOPEZ, EMPLOYEE CLAIMANT \n \nMY HR PROFESSIONAL BENEFITS, EMPLOYER RESPONDENT \n \nCCMSI, CARRIER/TPA RESPONDENT \n \n OPINION FILED MAY 14, 2026 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney,  Fort Smith, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney,  Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On  March 24, 2026, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on August 21, 2025, and a pre-hearing order was filed on \nAugust 22, 2025. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.    The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2.   The employee/employer/carrier relationship existed on May 23, 2024.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1.  Whether claimant sustained a compensable injury on May 23, 2024. \n2.  If compensable, claimant’s compensation rate. \n\nTaracena-Lopez-H500958 \n2 \n \n \n3.  If compensable, whether claimant is entitled to medical benefits. \nAll other issues are reserved by the parties. \nThe claimant contends that “As  the  result  of  a  job-related  fall  on  May  23,  2024,  claimant \nsustained  injury  to  multiple  body  parts  including,  but  not  necessarily  limited  to,  her  neck,  both \nshoulders, back, and lower extremities. The claimant contends that her authorized treating physician \nis  recommending  surgery  regarding  her  right  shoulder  and  that  the  respondents  are  refusing  to \nauthorize  said  surgery  although  they  initially  accepted  the  injury  as  compensable  and  authorized \nconsiderable  medical  treatment  prior  to  the  point  that  surgery  was  recommended. The  claimant \ncontends  that  the  respondents  have  now  controverted  any  disability  or  medical  compensation  to \nwhich the claimant is or may become entitled.” \nThe respondents contend that “Claimant did not suffer compensable injuries on or about May \n23,  2024,  as  she  was  not  performing  employment  related  services  at  that  time. Alternatively, \nrespondents contend that the claimant’s diagnosis is not associated with acute objective findings and, \ninstead, is related to preexisting underlying and chronic issues for which respondents are not liable.”   \n           From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n21, 2025, and contained in a pre-hearing order filed on August 22, 2025, are hereby accepted as fact. \n 2.  Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence that she  suffered  a \ncompensable injury on May 23, 2024. \n\nTaracena-Lopez-H500958 \n3 \n \n \n \n HEARING TESTIMONY \n  \n Claimant  first  called  Sylvia  Rosales  as  a  witness. Ms. Rosales is claimant’s mother, and she \ndrives claimant to work each morning. On May 23, 2024, she drove claimant to work and watched \nher enter the building. Ms. Rosales drove away and realized that claimant had left her bag in the car. \nAccording to Ms. Rosales, she called her daughter and said “Gen, you forgot your lunch with your \nmagnifier in the car. I am going to go around and then wait for me downstairs.”  When Ms. Rosales \narrived back at claimant’s place of employment, she saw claimant come out of the building crying and \nbleeding. Claimant told her mother that she had fallen down the stairs on the way back outside of the \nbuilding. \n Ms. Rosales was definite that she saw the magnifier that claimant uses in one side of the bag. \nMs. Rosales believed that claimant used the magnifier when she was working from home.  \n On cross-examination, Ms. Rosales said that claimant uses the magnifier away from work, but \ndid not know if the claimant needed the magnifier for the work she was going to do that day. She \nconceded that claimant had a lunch box that had her food in it and the magnifier stayed in the pocket \nof the lunch box.  \nClaimant then testified on her own behalf. Claimant agreed that her mother had called her to \ntell her that her bag with her lunch and magnifier was still in the car. As claimant went down the stairs \nto retrieve her bag, she fell down the stairs. She said that she had used the code to get into the building \nand gone up the stairs to her workstation when her mother called. She did not know why she fell but \nremembered trying to grab onto the rail but did not know what caused her to fall. She said she hurt \nher shoulder.\n1\n \n \n1\n Claimant also mentioned an injury to her knee and foot, but this claim was limited to claimant’s right shoulder. \n\nTaracena-Lopez-H500958 \n4 \n \n \nWhile  claimant  was  in  the  parking  lot,  her  boss,  Jonathan  Lyon  arrived  and  was  told  that \nclaimant  had  fallen  down  the  stairs. He  went  inside  and  came  out  with  the  first aid  kit. Claimant \nreentered the building and worked that day but was then sent to a medical provider the next day. She \ncontinued to receive medical treatment for several months, including physical therapy until the claim \nwas denied based on a records review from a physician that did not examine the claimant. She then \nwent to see Dr. Greg Jones in June 2025, and had surgery on her right shoulder, which she attributed \nto injuries she sustained during the fall. Claimant testified that before the fall on May 23, 2024, she \nwas not in need of any kind of medical treatment for her right shoulder.  \nOn cross-examination, claimant conceded that her answer in the deposition regarding previous \ninjuries, symptoms, problems, or conditions involving her cervical spine was not true, because she had \nbeen treated for such prior to May 23, 2024.  Claimant explained that she told the doctor that treated \nher before this incident she had some pain, but denied it was due to an injury.   \nAt  the  time  of  the  injury,  claimant  worked  as  a  benefits  specialist  for  respondent  My HR \nProfessional Benefits.  She had her own computer, desk, and cubicle.  She occasionally had to get up \nfrom her desk to get mail or scan a document, but most of her work was done at the computer station.  \nShe was allowed to work from home at times but did not take work home with her.  She explained \nthat before her fall, she was the only person in the building and had not performed any job tasks yet \nat the time she fell down the steps. \nClaimant said the magnifier was not something she had with her every day at work.  While she \nhad   ADA   accommodations   for   visual   impairment,   the   magnifier   was   not   part   of   those \naccommodations.  Claimant did not know whether she used the magnifier for her work that day.  She \ndoes use it in everyday life to read print that is too small for her to see without it; it is a personal item \nthat she carries with her like a pair of glasses.  There was then the following exchange: \n\nTaracena-Lopez-H500958 \n5 \n \n \nQuestion (By Mr. Parrish) You would agree with me that if this magnifier was \nnot  part  of  the  story  and  it  is  not  a work-related item  that  you  are  going  to \nretrieve, there is nothing else you could point to as potential job task? \n \nAnswer (Claimant) Correct. \n \n Q.  Okay.    You  agreed  with  me, also,  at  the  beginning of the  claim,  the \ninformation  you  provided to  the  insurance company  and  your  supervisor  as \nfar as what you were doing was you were going to get your food, your lunch, \nout of the car; correct? \n \nA. Correct. \n \nQ.  We have a portion of a statement  you gave to the adjuster on page seventy-\none of my exhibit two that says, “ I was going downstairs because I left my \nfood in the car.”  That is the information you provided at the beginning of the \nclaim; right? \n \nA. Yes. \n \n Claimant agreed that she did not mention the magnifier or the need for such when the matter \nwas being investigated as a workers’ compensation claim.  \n On redirect examination, claimant explained that she was born with congenital glaucoma and \nis considered legally blind.  She worked from home two days a week with three days in the office.  She \nstated she used the magnifier for work, “To read stuff clearer”.  She said that she needed the magnifier  \nto perform her job and that she used it on a regular basis to do her job more efficiently.  Claimant \ntestified that it was a benefit to her employer for her to have the magnifier with her in the office.   \nClaimant rested and respondent called Jonathan Lyon, who is the benefits director at My HR \nProfessional benefits.  He was claimant’s direct supervisor when she worked with the company.  He \nrecalled seeing her in the parking lot after her fall and helped her get her belongings and her purse \ninto the building after the accident.  He said that claimant did not say anything to him about retrieving \nthe magnifier, but rather she had gone down the stairs to retrieve her lunch. \nMr.  Lyon  testified  that  claimant  was  provided  with  a  desk  magnifier  as  part  of ADA \n\nTaracena-Lopez-H500958 \n6 \n \n \naccommodation.  He described it as a standing tool that she could use, when and if she needed to \nreview  any  paper  documents,  it  was  available  to  her  at  her  desk.    She  was  also  provided  with  an \noversized monitor with a very large grain so she could zoom in to read what was on the screen.  The \nmagnifier on her desk was suitable for looking at checks or any other paperwork that needed to be \nmagnified.    It  was  his  opinion  that  the  handheld  magnifier  would not do  anything  that  the  one \nprovided to her could do. \nOn cross-examination Mr. Lyon agreed that claimant needed a magnifier of some type in order \nto perform her job.  He did not see the magnifier in her lunch bag but did not search her personal \nproperty or have any reason to wonder about whether she had a magnifier in her bag.  Mr. Lyon said \nthe magnifier provided at work was not one that could be easily transported and was meant to stay at \nthe  office.    He  did  not  believe  claimant would  need  a  magnifier  in  order  to  do  her  work  at  home \nbecause the work comes through electronically, meaning there would be no paper products on which \nto utilize a magnifier.  Claimant’s work at home involved PDF files on which she could enlarge; he \ndid not believe she would need a magnifier while working at home.  Her work done away for the office \ninvolved  working  on  enrollments  and  assisting  with  disability  claims,  all  of  which  were  done \nelectronically.  She also did work with disability claims and reviewing employer responses on claims \nfor short-term disability.  Mr. Lyon agreed that claimant did a lot of reading in her role with My HR \nProfessional Benefits.  While Mr. Lyon did not know if she has an oversized computer screen at home, \nhe did know that the days she was working from home, her work was getting done.  From that, he \nconcluded she had adequate equipment at home to be able to perform her job. \n \n \n \n \n \n\nTaracena-Lopez-H500958 \n7 \n \n \n \nREVIEW OF THE EXHIBITS \n \nClaimant’s Exhibit #1 is 79 pages of medical records; Exhibit #2 is the incident report made \nSouthern Personnel Management and two email exchanges regarding claimant’s case; Exhibit #3 is a \nphotograph of a magnifier and a zoomer; Exhibit #4 are wage records.  Respondents Exhibit #1 was \n57 pages of medical records; Exhibit #2 is 86 pages of non-medical records, including the 74-page \nemployee handbook and forms submitted to the Workers’ Compensation Commission.  \nClaimant proffered the deposition of Dr. Gregory Jones, which was taken on March 13, 2026, \nat respondents’ request.  Because claimant had not listed this as a potential exhibit, respondent \nobjected to its introduction.  Claimant argued that it was already in respondents’ possession, the seven-\nday rule regarding identifying exhibits did not apply.  While I believe the better practice would have \nbeen  for  claimant  to  have  specifically  alerted  respondents  that  she  intended  to  introduce  the \ndeposition, respondents  candidly  admitted there  was  no prejudice  other  than  the  deposition  was \ndetrimental to its defense.  I am going to exercise my discretion pursuant to A.C.A. §11-9-705(c)(3) \nand admit  the  deposition  over respondents’ objection,  as the  contents  of  the  deposition  were  well \nknown to respondent.   \nAs the threshold issue in this matter is whether claimant was engaged in employment related \nservices at the time of her injury, an exhaustive review of these exhibits is unnecessary.  The medical \nrecords contain ample objective proof of an injury to claimant’s right shoulder.  Any exhibits relevant \nto the adjudication of this matter will be discussed in that section of the opinion.    \n \nADJUDICATION \n \n In order to prove a compensable injury as the result of a specific incident that is identifiable \nby time and place of occurrence, a claimant must establish by a preponderance of the evidence (1) an \n\nTaracena-Lopez-H500958 \n8 \n \n \ninjury arising out of and in the course of employment; (2) the injury caused internal or external harm \nto  the  body  which  required  medical services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence. Odd Jobs and More v. Reid, 2011 Ark. App. 450, \n384 S.W. 3d 630.   The proof was sufficient to establish claimant identified a specific incident that \ncaused an injury to her body which was established by objective medical findings.  She was a credible \nwitness to the fall down the stairs at work, and her supervisor did not question that the accident had \noccurred as he was getting to work.  \nThus, the  threshold issue in this case is whether claimant was performing employment related \nservices  at  the  time  she  fell  down  the  stairs  at  work.   Ark.  Code  Ann.  §  11-9-102(4)  provides,  in \npertinent part: \n(B) \"Compensable injury\" does not include: \n(iii) Injury which was inflicted upon the employee at a time when employment \nservices were not being performed...  \n \n An employee is performing employment services when he is doing something that is generally \nrequired by his employer. Dairy Farmers of America v. Coker, 98 Ark. App. 400, 255 S.W.3d 905. The \nArkansas  Supreme  Court  uses  the  same  test  to  determine  whether  an  employee  is  performing \nemployment services as it does when determining whether an employee is acting within the course \nand scope of employment. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). The test is \nwhether  the  injury  occurred  within  the  time  and  space  boundaries  of  the  employment,  when  the \nemployee was carrying out the employer's purpose directly or indirectly. Id. \nThe events of May 23, 2024, are not in dispute.  Claimant is legally blind. Her mother drove \nher to work that morning; claimant entered her place of employment and went up a flight of stairs to \n\nTaracena-Lopez-H500958 \n9 \n \n \nher work area when her mother called to tell her that she left her bag in the car.\n2\n  Claimant left her \nwork area to retrieve the bag and somehow fell down the stairs as she did so.  Mr. Lyon, claimant’s \ndirect supervisor, arrived after claimant fell and assisted her back into the building.  Mr. Lyon recalled \nclaimant said her purpose of going to the parking lot was to get her lunch.  Claimant’s statement as \nrecorded  by  respondents’ claims adjuster was “I had just gotten to work; I was going downstairs \nbecause I had left my food in the car and fell. I want to say I was clocked in already.” (R. Ex #2, page \n77) \nHaving reviewed all the evidence, I find claimant failed to establish she was engaged in services \nrequired by her employer when she was returning to her mother’s vehicle to retrieve a bag containing \nher  lunch  and  a  magnifier.   The  equipment  respondent  My  HR  Employment  Benefits  provided  to \nclaimant due to her vision disability would have permitted claimant to do her work that day without \nher personal magnifier; she testified that she did not know whether she used it on the day of the injury, \nwhich shows it was not a necessity for carrying out her work tasks.  I believe the preponderance of \nthe evidence supports the conclusion that claimant went downstairs to get her bag because her lunch \nwas in it, and that activity was not carrying out her employer’s purpose at the time she fell down the \nflight of stairs.  \n As I found claimant did not prove she suffered a compensable injury, her claim for medical \ntreatment for her right shoulder is moot. \nORDER \n \nFor  the  reasons  set  out  above,  claimant  has  failed  to  meet  her burden  of  proving  by  a \npreponderance of the evidence that she suffered a compensable injury on May 23, 2024. Therefore, \n \n2\n Claimant’s mother testified that she specifically mentioned the magnifier was in the bag.  While I’m a bit dubious \nthat was what was said, it is ultimately irrelevant because telling claimant she forgot her bag would have been \nsufficient to alert claimant that the magnifier she carried in it was also in the car with her lunch.  \n\nTaracena-Lopez-H500958 \n10 \n \n \nher claim for compensation benefits is hereby denied and dismissed. \nRespondent is responsible for paying the court reporter her charges of $ 750.00 for preparation \nof the hearing transcript. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":18394,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H500958 GENESIS TARACENA-LOPEZ, EMPLOYEE CLAIMANT MY HR PROFESSIONAL BENEFITS, EMPLOYER RESPONDENT CCMSI, CARRIER/TPA RESPONDENT OPINION FILED MAY 14, 2026 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Arkansas. Cla...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["neck","back","shoulder","knee","cervical"],"fetchedAt":"2026-05-19T22:29:46.726Z"},{"id":"alj-H404094-2026-05-07","awccNumber":"H404094","decisionDate":"2026-05-07","decisionYear":2026,"opinionType":"alj","claimantName":"Luz Pina-Soto","employerName":"Simmons Prepared Foods Inc","title":"PINA-SOTO VS. SIMMONS PREPARED FOODS INC. AWCC# H404094 May 07, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PINA-SOTO_LUZ_H404094_20260507.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PINA-SOTO_LUZ_H404094_20260507.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n \nCLAIM NO. H404094 \n \n \nLUZ PINA-SOTO, EMPLOYEE   CLAIMANT \n \nSIMMONS PREPARED FOODS INC., EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MAY 7, 2026 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents are represented by R. SCOTT ZUERKER, Attorney, Fort Smith Arkansas \n \nOPINION/ORDER \n \n \n On April 11, 2025, claimant filed Form AR-C, alleging a compensable injury to her right hand \nand wrist on January 12, 2024. This claim was accepted as compensable.  \nOn January 7, 2026, respondents filed a Motion to Dismiss pursuant to Ark. Code Ann. § 11-\n9-702(a)(4) and 11 C.A.R. § 25-110(d), contending that more than six months had elapsed since the \nfiling of claimant's AR-C without claimant having requested a hearing. A hearing on the motion was \nscheduled for April 24, 2026. Claimant appeared with counsel and opposed the motion. \nArk. Code Ann. § 11-9-702(d) provides, in pertinent part: \nIf within six (6) months after the filing of a claim for additional compensation \nno bona fide request for a hearing has been made with respect to the claim, the \nclaim may, upon motion and after hearing, if necessary, be dismissed without \nprejudice  to  the  refiling  of  the  claim  within  the  limitation  period  specified  in \nsubsection (b) of this section.  \n \n\nPina-Soto-H404094 \n \n2 \n \n11 C.A.R. § 25-110(d) provides, in pertinent part: \nUpon meritorious  application  to  the  Commission  from  either  party  in  an \naction pending before the Commission, requesting that the claim be dismissed \nfor want of prosecution, the Commission may, upon reasonable notice to the \nparties, enter an order dismissing the claim for want of prosecution.  \n \nThe purpose of this rule is to permit the claimant to resist dismissal and to show, if she can, \nwhy the application for dismissal is without merit. The rule is designed to ensure that the rights of the \nclaimant are not prejudiced. \nAt the hearing, respondents argued that claimant had not requested a hearing since her AR-C \nwas filed, that Dr. Kelly's October 1, 2025, report did not recommend additional hand treatment, and \nthat claimant was not then seeking any benefits. Claimant responded that the hand claim had not been \nabandoned  but  had  developed  alongside  a  separate  right  shoulder  and  neck  claim  that  shaped  the \ncourse of treatment and evaluation. The record reflects that claimant underwent surgery on her right \nhand  and  wrist  performed  by  Dr.  Benafield  on  April  19,  2024,  and  later  requested  a  change  of \nphysician. Dr. James Kelly assumed her care and evaluated her on October 1, 2025. Claimant's counsel \nargued that Dr. Kelly's evaluation occurred while the shoulder claim was still being contested and that \nDr. Kelly was unaware of the shoulder injury, which counsel contended affected his assessment of \nclaimant's pain complaints and his functional capacity findings. After respondents eventually accepted \nthe shoulder claim, claimant underwent shoulder surgery. Counsel argued that once claimant recovers \nfrom that surgery, a fresh evaluation of the hand may well be warranted. \nClaimant testified that she continued to experience pain and numbness in her right hand, that \nshe wished to pursue additional treatment if those symptoms persisted after shoulder recovery, and \nthat she had no hand appointments currently scheduled. \n\nPina-Soto-H404094 \n \n3 \n \nBoth the statute and the rule are permissive, not mandatory. Section 11-9-702(d) provides that \na  claim  may  be  dismissed  upon  the  requisite  showing  of  inactivity — not  that  it  shall  be.  The \nCommission therefore retains discretion to deny the motion when the circumstances warrant, and this \nis such a case. Claimant appeared at the hearing, opposed the motion, offered testimony and exhibits, \nand  provided  a  coherent  explanation  for  the  absence  of  hearing  activity: The  hand  claim  has  been \nintertwined  with  a  related  shoulder  claim  that  respondents  initially  contested  and  only  recently \naccepted.  The  delay  reflects  the  complexity  of  a  developing  record,  not  abandonment.  Claimant \npursued  a  change  of  physician,  underwent  evaluation  by  Dr.  Kelly,  and  testified  credibly that  she \nintends to seek additional hand treatment if her symptoms persist following shoulder recovery. \nThe statute further provides that any dismissal would be without prejudice to refiling within \nthe limitations period, and respondents acknowledged at the hearing that Dr. Kelly's October 1, 2025, \nvisit  was  a  covered  visit,  so  that  period  has  not  yet  run.  Dismissal  without  prejudice  would  not \npermanently  foreclose  claimant's  ability  to  refile,  but  it  would  impose  an  unnecessary  procedural \nburden on a claimant who has done precisely what the rule contemplates, as she appeared, opposed \nthe motion to dismiss, and demonstrated that her claim is not without merit. Exercising discretion to \ndeny the motion avoids that result and ensures that claimant's rights are not prejudiced. \nRespondents' Motion to Dismiss is denied. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":5555,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404094 LUZ PINA-SOTO, EMPLOYEE CLAIMANT SIMMONS PREPARED FOODS INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MAY 7, 2026 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Spring...","outcome":"dismissed","outcomeKeywords":["dismissed:3","denied:1"],"injuryKeywords":["wrist","shoulder","neck"],"fetchedAt":"2026-05-19T22:29:46.710Z"},{"id":"alj-H306935-2026-05-05","awccNumber":"H306935","decisionDate":"2026-05-05","decisionYear":2026,"opinionType":"alj","claimantName":"James Payne","employerName":"Nucor Steel Of Ark","title":"PAYNE VS. NUCOR STEEL OF ARK. AWCC# H306935 May 05, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Payne_James_H306935_20260505.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Payne_James_H306935_20260505.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306935 \n \n \nJAMES T. PAYNE, EMPLOYEE CLAIMANT \n \nNUCOR STEEL OF ARK., \n EMPLOYER RESPONDENT \n \nARCH INDEMN. INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MAY 5, 2026 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on May  1,  2026, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant pro se. \n \nRespondents represented by Mr. Zachary F. Ryburn, Ryburn Law Firm, Attorneys \nat Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on May  1,  2026, in \nJonesboro, Arkansas.  The testimony of Claimant was taken in the case.  Also, in \norder  to  address  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1) \n(Repl. 2012)(Commission must “conduct the hearing . . . in a manner which best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe   record   documents—forms,   pleadings,   and   correspondence—from   the \nCommission’s file on the claim, consisting of 45 pages.  In accordance with Sapp \nv.  Tyson  Foods,  Inc.,  2010  Ark.  App.  517,  2010  Ark.  App.  LEXIS 549,  these \ndocuments have been served on the parties in conjunction with this opinion. \n\nPAYNE – H306935 \n \n2 \n \n The record shows the following procedural history: \n On October  26,  2023, through  then-counsel Scott  Hunter,  Jr., Claimant \nfiled a Form AR-C.  Therein, Claimant requested the full range of initial indemnity \nbenefits  and alleged  that  he  suffered a  compensable  injury  to  his  left  elbow  on \nAugust 14, 2023.  No hearing request accompanied this filing. \n On November 9, 2023, Hunter requested a change of physician on behalf \nof his client.  In an order entered by the Medical Cost Containment Division of the \nCommission on December 21, 2023, Claimant’s authorized treating physician was \nchanged  from  Dr.  Christian  Fahey  to  Dr.  Apurva  Dalal;  and  an  appointment  with \nDalal  was  set  for  January  16,  2024,  at  1:00  p.m.    In  an  amended  order  dated \nFebruary 29, 2024, the appointment date was changed to February 12, 2024. \n Hunter’s office emailed the Commission on November 7, 2024, requesting \na hearing on the claim.  The file was assigned to me on November 8, 2024; and \nprehearing  questionnaires  were  issued  to  the  parties  that  same  day.    On \nNovember  11,  2024,  Respondents’  co-counsel  entered  his  appearance.  The \nparties   filed   timely   prehearing   responses   on   December   9   and   10,   2024, \nrespectively.    A  prehearing  conference  on  the  claim  took  place  on  January  6, \n2025.    Following  that  conference,  I  issued  a  prehearing  order,  scheduling  a \nhearing for March 21, 2025, on the following issue:  “Whether Claimant is entitled \nto additional treatment of his stipulated compensable left upper extremity injury in \nthe form of surgery and related treatment.”  However, Hunter requested a hearing \n\nPAYNE – H306935 \n \n3 \n \non March 13, 2025, representing to the Commission that Claimant had suffered a \nheart  attack  and  had  to  have  four  stents  implanted.    To  allow  Claimant  time  to \nrecover, I cancelled the hearing and returned the file to the Commission’s general \nfiles. \n On April 29, 2025, Hunter’s office emailed another hearing request to the \nCommission.    The  hearing  was  rescheduled  for  August  1,  2025.   However,  on \nJuly 23, 2025, Hunter’s office emailed my office, stating: \nWe  have  spoken  to  our  client  and  he has  decided  that there  is no \nreason for a hearing at this time.  We would like to request the file \nbe  returned  to  general  files  and  should  it  be  necessary, we  will \nrequest a hearing in the future. \n \nBased  on  this,  along  with  an  indication  by  Respondents  that  they  were  not \nobjecting, the hearing was again cancelled, and the file was again returned to the \nCommission’s general files. \n The  record  reflects  that  no  further  action  took  place  on  the  claim  until \nJanuary  6,  2026,  when  Respondents  filed  the  instant  motion to  dismiss.    Hunter \nfiled  a  motion  to  withdraw  from  his  representation  of  Claimant  on  January  13, \n2026.  In an order entered on February 9, 2026, I granted Hunter’s motion under \nAWCC Advisory 2003-2.  On March 2, 2026, my office wrote Claimant, asking for \na response to the motion to dismiss within 20 days.  Claimant did so on March 26, \n2026, stating in pertinent part: \n \n\nPAYNE – H306935 \n \n4 \n \nI do not wish for this motion to dismiss be granted.  I do not feel like \nmy injury was properly taken care of from day one.  I am currently \nwaiting  for  an  investigation  for  medical  malpractice  to  conclude  by \nthe  Arkansas  Board  of  Nursing  against  Nucor’s  nurse  Krissy \nCunningham.    I  have  a  lot  of  evidence  to  support  my  claim  for \nmedical malpractice including emails and even voice recordings. \n \n. . . \n \nI  am  also  having  a difficult  time finding  a new  attorney  to  take this \ncase against Nucor. \n \n On March 25, 2026, a hearing on the Motion to Dismiss was scheduled for \nMay 1, 2026, at 1:00 p.m. at the Commission in Little Rock.  The hearing on the \nMotion to Dismiss proceeded as scheduled.  Both parties appeared at the hearing \npursuant  to  the  Notice  of  Hearing,  and  Claimant  gave  testimony.    Respondents \nappeared through counsel and argued for dismissal under AWCC R. 099.13 (now \ncodified as 11 C.A.R. § 25-110(d)). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to 11 C.A.R. § 25-110(d). \n\nPAYNE – H306935 \n \n5 \n \n3. Respondents  have not proven  by  a preponderance  of the  evidence \nthat  Claimant  has  failed  to  prosecute  this  claim under 11  C.A.R.  § \n25-110(d). \n4. The Motion to Dismiss is hereby denied. \n5. Claimant has requested a hearing on the issue of his entitlement to \nadditional benefits. \n6. This claim will proceed to a hearing on the merits. \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nPAYNE – H306935 \n \n6 \n \n A claimant’s testimony is never considered uncontroverted.  Nix  v. Wilson \nWorld  Hotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting  evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n Claimant testified that the reason that he had not renewed his request for a \nhearing was that (1) he was unsuccessfully seeking new counsel; (2) he had been \npreoccupied  by  the  above-referenced  proceeding  before  the  Arkansas  Nursing \nBoard.  Claimant explained that he no longer wished to have the surgery that was \nto  have  been  the  subject  of  the  original  hearing,  because  it  is  his  understanding \nthat  too  much  time  has  elapsed  for  it  to  be  successful.    Instead,  he requested  a \nhearing  on  his claim,  in  the  event  that  it  is  not  dismissed,  on  his  entitlement  to \nadditional indemnity benefits. \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  motion  to  dismiss  hearing \nunder 11  C.A.R.  §  25-110(d),  he  has  not  yet  abridged  that  rule.    The  Motion  to \nDismiss is thus denied. \n\nPAYNE – H306935 \n \n7 \n \n Prehearing  questionnaires  will  be  immediately  issued  to  the  parties;  and \nthis claim will proceed to a full hearing on the merits. \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby respectfully denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":9484,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H306935 JAMES T. PAYNE, EMPLOYEE CLAIMANT NUCOR STEEL OF ARK., EMPLOYER RESPONDENT ARCH INDEMN. INS. CO., CARRIER RESPONDENT OPINION FILED MAY 5, 2026 Hearing before Administrative Law Judge O. Milton Fine II on May 1, 2026, in Jonesboro, Craighead County, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.698Z"},{"id":"full_commission-H408000-2026-04-30","awccNumber":"H408000","decisionDate":"2026-04-30","decisionYear":2026,"opinionType":"full_commission","claimantName":"Carlos Gomez","employerName":"C M Construction, LLC","title":"GOMEZ VS. C M CONSTRUCTION, LLC AWCC# H408000 April 30, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Gomez_Carlos_H408000_20260430.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Gomez_Carlos_H408000_20260430.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H408000 \n \nCARLOS REINA GOMEZ, \nEMPLOYEE \n \nCLAIMANT \nC M CONSTRUCTION, LLC,  \nEMPLOYER \n \nRESPONDENT \nWELLFLEET NEW YORK INS. CO, CARRIER \n \nRESPONDENT \n \nOPINION FILED APRIL 30, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE AARON L. MARTIN, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed October 15, 2025.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-hearing \nconference conducted on August 6, 2025, and contained in a pre-\nhearing order filed that same date are hereby accepted as fact. \n2. Claimant has met his burden of proving by a preponderance of \nthe evidence that he suffered a compensable injury to his low \nback and right hip on December 5, 2024. \n3. Respondent is liable for payment of all reasonable and necessary \nmedical treatment provided to claimant for his compensable \ninjuries. \n\nGOMEZ- H408000  2\n  \n \n \n4. Claimant has met his burden of proving by a preponderance of \nthe evidence that he is entitled to payment of one day of \ntemporary total disability benefits. \n5. Claimant’s attorney is entitled to an attorney fee on all unpaid \nindemnity benefits. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's October 15, \n2025 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \n\nGOMEZ- H408000  3\n  \n \n \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \n     \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n I must respectfully dissent from the majority opinion finding \nthat the claimant suffered a compensable injury on December 5, 2024. \n The claimant contends that he was injured when he tripped and fell \napproximately 12 feet to the ground while employed by CM Construction, \nLLC on December 5, 2024. The claimant was taken to the emergency room \nat Northwest Medical Center Springdale where he was hospitalized from \nDecember 5, 2024, through December 13, 2024. Claimant’s primary \ncomplaints immediately after the accident included severe back pain and \nright ankle pain.  \nWhile hospitalized, the claimant underwent CT scans of the brain, \ncervical spine, chest, abdomen, pelvis and MRIs of the pelvis, cervical \n\nGOMEZ- H408000  4\n  \n \n \nspine, thoracic spine, and lumbar spine. None of these tests revealed any \nacute findings. \n Upon release from Northwest Medical, the claimant began outpatient \nphysical therapy and follow-up care at Community Clinic in Springdale. Due \nto claimant’s continued complaints of pain, Kathy L. Mayhew, D.O. at \nCommunity Clinic recommended that claimant undergo an evaluation by an \northopedic specialist.   \n On March 5, 2025, claimant was evaluated by Dr. Marcus Heim, \nD.O. at the Orthopedic Center of Northwest Arkansas who ordered an MRI \nof the right hip and an EMG/NCV electrodiagnostic study of the right lower \nextremity. Dr. Heim assessed claimant’s condition at that time as right hip \npain and right lumbar radiculopathy. \n Following these tests, claimant returned to Dr. Heim. In his report of \nMay 14, 2025, Dr. Heim stated that the MRI scan of the hip showed early \ndegenerative changes but no evidence of acute osseous pathology or \navascular necrosis. He also noted that the EMG/NCV was essentially \nnormal with the exception of the “lack of recruitment of fibers to the EHL.” \n After a hearing, an ALJ opined the claimant had met his burden of \nproving he sustained a compensable injury, and he was entitled to \nreasonable and necessary medical treatment and one day of temporary \ntotal disability benefits.  \n\nGOMEZ- H408000  5\n  \n \n \nArkansas Code Annotated section 11-9-102 (4)(A)(i) provides that a \ncompensable injury includes “[a]n accidental injury causing internal or \nexternal physical harm to the body. . . An injury is ‘accidental’ only if it is \ncaused by a specific incident and is identifiable by time and place of \noccurrence.”  \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \nidentifiable by time and place of an occurrence. Ark. Code Ann. § 11-9-\n102(4)(A)(i). This, therefore, requires that a claimant establish by a \npreponderance of the evidence: (1) an injury arising out of and in the course \nof employment; (2) that the injury caused internal or external physical harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings establishing an \ninjury as defined in Ark. Code Ann. §11-9-102(16) and; (4) that the injury \nwas caused by a specific incident identifiable by time and place of \noccurrence. Ark. Code Ann. § 11-9-102(4)(A)(i). \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\" Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16).  \n\nGOMEZ- H408000  6\n  \n \n \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force. Sheridan Sch. Dist. v. Wise, 2021 Ark. App. \n459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness. Id. The \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony that it deems worthy of belief. White v. Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). \nIn the present matter, the claimant fell approximately twelve feet from \na roof. Despite an eight day stay at Northwest Medical Center in \nSpringdale, doctors were unable to find any objective signs of injury. \nBetween the date of claimant’s injury and March 31, 2025, the claimant \nunderwent a multitude of testing, including multiple MRIs, CT scans, \nmultiple X-rays, and electrodiagnostic testing, all of which revealed only \ndegenerative changes or pre-existing conditions. \nA CT scan on the date of claimant’s injury was unremarkable. It \nrevealed “[t]horacic vertebral body heights are preserved. No displaced \nsternal or rib fracture. No chest wall hematoma.” According to the CT scan \nreport, the claimant’s liver, spleen, left kidney, adrenals and pancreas were \n\nGOMEZ- H408000  7\n  \n \n \nnormal. A CT of the cervical spine was negative for acute findings. CT \nscans of the claimant’s legs showed “[n]o acute findings in either leg. Old \nposttraumatic and degenerative changes were present in the right ankle.” A \nhead CT revealed “[n]o acute intracranial abnormality.”  \nAn MRI of the claimant’s pelvis dated December 11, 2024, showed \nno acute findings. An MRI of the cervical spine dated December 9, 2024, \nfound: \nAlignment of the craniocervical junction is \nmaintained. No evidence of craniocervical or \ncervical ligament injury. Straightening of the \nnormal cervical lordosis. No acute cervical \nfracture. Vertebral body heights are \nmaintained. Multilevel dis desiccation and disc \nheight loss. \n \nCervical cord is normal in caliber and signal. \n \nParaspinal soft tissues are normal. Included \nposterior fossa structures are normal. \n \nC2-C3: No canal or neural foraminal stenosis. \n \nC3-C4: No canal or neuroforaminal stenosis. \n \nC4-C5: Disc osteophyte complex asymmetric \nto the right, facet osteoarthritis and \nuncovertebral hypertrophy. Findings results \n(sic) in mild bilateral neural foraminal stenosis. \nDisc bulge effaces the anterior thecal sac and \nresults in mild flattening of the right hemicord. \n \nC5-C6: Disc osteophyte complex, facet \nosteoarthritis and uncovertebral hypertrophy \nresults in moderate left and mild right neural \nforaminal stenosis. Moderate canal stenosis. \n\nGOMEZ- H408000  8\n  \n \n \n \nC6-C7: Disc bulge and uncovertebral \nhypertrophy results in mild bilateral neural \nforaminal stenosis. No canal stenosis. \n \nC7-T1: No canal or neural foraminal stenosis. \n \nIMPRESSION: \n \n1. Multilevel degenerative disc disease of the \ncervical spine most pronounced at C5-C6 \nwhere there is moderate canal, moderate left \nand mild right neural foraminal stenosis. \n2. Level by level findings as above. \n \n An MRI of the claimant’s lumbar and thoracic spine taken the same \nday revealed that “alignment is normal of the lumbar vertebral bodies. No \ncompression fractures are seen,” and “alignment of the thoracic spine is \nnormal.” A right hip MRI showed “mild fraying of the anterior superior right \nlabrum” and bilateral degenerative joint disease.  \n Pelvic and chest x-rays revealed “no acute findings,” and an X-ray of \nthe right ankle and foot showed no acute fracture or dislocation but \nrevealed a healed right fibular fracture.  \n The claimant underwent electrodiagnostic testing on March 31, 2025. \nTesting showed “[e]ssentially normal electrodiagnostic study of the right \nlower extremity except for the diffusely decreased interference pattern and \nno active function noted in the right EHL”. These types of findings could be \nseen secondary to pain or lack of effort. There are no findings to support \n\nGOMEZ- H408000  9\n  \n \n \nradiculopathy, plexopathy, generalized peripheral neuropathy or peripheral \nnerve entrapment syndrome or injury. \n The administrative law judge agreed with these facts in his opinion \nstating, “the claimant underwent multiple tests at the emergency room and \nduring his hospitalization that were interpreted as negative.” The sole basis \nfor the ALJ’s findings that the claimant suffered a compensable injury is \n“numerous notations of claimant being given Flexeril for muscle spasms,” \nlumbar radiculopathy, and mild fraying of the anterior superior right labrum.  \nFrom the outset, no practitioner who treated the claimant has related the \nright labral fraying to the claimant’s fall.  \n While Dr. John Marcus Heim assessed the claimant with right lumbar \nradiculopathy at a March 5, 2025 visit, after reviewing the March 31, 2025 \nelectrodiagnostic testing performed by Dr. Miles Johnson, Dr. Heim \nremoved that assessment from the claimant’s records and advised the \nEMG/NCV was essentially normal.  \nDr. Heim’s report agrees with the position of the respondents that the \nMRI of claimant’s hip “reveals some early degenerative changes but no \nevidence of acute osseous pathology or AVN. With respect to his \nEMG/NCV it is essentially normal.” \n The ALJ reasons that the claimant’s prescription for Flexeril for \nmuscle spasms is sufficient to establish an objective finding based upon the \n\nGOMEZ- H408000  10\n  \n \n \nresults of Nucor Yamato Steel Co. v. Shelton, 2025 Ark. App. 249, 713 \nS.W.3d 494 (2025). The Arkansas Court of Appeals declined to overrule its \nprior opinion that a diagnosis of lumbar sprain along with prescribed \ntreatment of medication for “muscle spasms” is sufficient to establish \nobjective findings of a compensable injury.  \n However, a claimant who has received a prescription “as needed for \nmuscle spasms” has not established objective findings of injury. Howell v. \nArkadelphia Human Development Center, 2023 Ark. App. 441, 675 S.W.3d \n925 (2023). The Court of Appeals affirmed the Commission’s findings that \ncomplaints of muscle spasms did not constitute objective findings, stating: \nHowell's treating physician's notes from his \nexamination of Howell specifically state, \"No \nPalpable spasm noted.\" That is, it is clear from \nthese notes that Dr. Larey did not prescribe \nCelebrex, Flexeril, and Ultracet for muscle \nspasms. And if there was any confusion about \nthis, Dr. Larey confirmed it in his response to \nthe carrier's request for information, stating \nthat he \"did not palpate/observe muscle \nspasms\" or diagnose or observe any other \n\"acute objective findings of an injury.\" And \nfinally, Howell's two lumbar MRIs were normal. \nId. \n \nThe court of appeals in Howell deferred to the \nCommission’s findings of the weight and \ncredibility of the medical evidence, stating: \n[t]he Commission interpreted and weighed the \nmedical evidence and concluded that the \nprescription for muscle spasms was not an \nobjective finding of an injury in light of all the \nevidence. The Commission specifically found \n\nGOMEZ- H408000  11\n  \n \n \nHowell's testimony that she suffered from \nmuscle spasms as a result of the July 8 injury \nnot credible and found \"no probative evidence \nof record demonstrating that the claimant was \nsuffering from muscle spasms. Id \n \nRespondents contend that these cases, read together, create a \nrebuttable presumption that a prescription for a muscle relaxer is an \nobjective finding of spasms. In this case, there is no mention of the claimant \ncomplaining of muscle spasms throughout his treatment.  \nA thorough review of the record reveals no instance of a doctor, \nnurse, or physical therapist observing a muscle spasm. In fact, the ALJ \nneglects to mention that Flexeril, as with the majority of the medications \nprescribed while in the hospital, was ordered pro re nata – as needed. A \nreview of the medical records reveals that the order for “Flexeril: 0 mg, Oral, \nTID, PRN: spasm” is simply placed in the event that a spasm occurred, not \nnecessarily because it had occurred.  \nThere is no evidence that any Flexeril was ever administered, that \nthe claimant requested it, or that the claimant made any complaint of \nmuscle spasms. It is clear from the record that no muscle spasm was ever \ndocumented by any medical provider that treated the claimant.  \n Our caselaw does not support a finding that the claimant sustained a \ncompensable injury. Extensive testing over the course of approximately six \nmonths revealed no objective findings, the claimant never complained of \n\nGOMEZ- H408000  12\n  \n \n \nmuscle spasms and no medical provider ever documented a muscle \nspasm.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n                                     ______                                     _______ \n      MICHAEL R. MAYTON, Commissioner","textLength":15728,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H408000 CARLOS REINA GOMEZ, EMPLOYEE CLAIMANT C M CONSTRUCTION, LLC, EMPLOYER RESPONDENT WELLFLEET NEW YORK INS. CO, CARRIER RESPONDENT OPINION FILED APRIL 30, 2026","outcome":"affirmed","outcomeKeywords":["affirmed:1"],"injuryKeywords":["back","hip","ankle","cervical","thoracic","lumbar","fracture","sprain"],"fetchedAt":"2026-05-19T22:29:43.615Z"},{"id":"alj-H006753-2026-04-30","awccNumber":"H006753","decisionDate":"2026-04-30","decisionYear":2026,"opinionType":"alj","claimantName":"Jacob Shotzman","employerName":"Wilbert Funeral Services Inc","title":"SHOTZMAN VS. WILBERT FUNERAL SERVICES INC. AWCC# H006753Nunc Pro Tunc Filed April 30, 2026","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SHOTZMAN_JACOB_H006753_20260430.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHOTZMAN_JACOB_H006753_20260430.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H006753 \n \n \nJACOB M. SHOTZMAN, EMPLOYEE CLAIMANT \n \nWILBERT FUNERAL SERVICES INC., EMPLOYER RESPONDENT \n \nGALLAGHER BASSETT SERVICES INC., CARRIER/TPA RESPONDENT \n \n \nNUNC PRO TUNC ORDER FILED APRIL 30, 2026 \n \n \n The undersigned finds that a clerical error exists in the heading opinion filed April 24, 2026.  \nThe employee/claimant’s last name should be Shotzman instead of Shotman. \nIn all other respects, the opinion shall remain the same and shall not be otherwise affected. \n \n IT IS SO ORDERED \n \n \n \n        ______________________________ \n                                                                                                Joseph C. Self \n                                                                                                Administrative Law Judge","textLength":850,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H006753 JACOB M. SHOTZMAN, EMPLOYEE CLAIMANT WILBERT FUNERAL SERVICES INC., EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES INC., CARRIER/TPA RESPONDENT NUNC PRO TUNC ORDER FILED APRIL 30, 2026 The undersigned finds that a clerical error exists in the headin...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:30:24.281Z"},{"id":"full_commission-H308265-2026-04-29","awccNumber":"H308265","decisionDate":"2026-04-29","decisionYear":2026,"opinionType":"full_commission","claimantName":"David Daniels","employerName":"Tyson Poultry, Inc","title":"DANIELS VS. TYSON POULTRY, INC. AWCC# H308265 April 29, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Daniels_David_H308265_20260429.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Daniels_David_H308265_20260429.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H308265 \n \nDAVID L. DANIELS, \nEMPLOYEE \n \nCLAIMANT \nTYSON POULTRY, INC.,  \nEMPLOYER \n \nRESPONDENT \nTYNET CORP., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 29, 2026  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nThe pro se claimant failed to appear. \n \nRespondents represented by the HONORABLE J. MATTHEW MAULDIN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \n The claimant appeals an administrative law judge’s opinion filed \nJanuary 14, 2026.  The administrative law judge found that the claim should \nbe dismissed without prejudice.  After reviewing the entire record de novo, \nthe Full Commission likewise finds that the claim should be dismissed for \nwant of prosecution, in accordance with 11 CAR §25-110.  \n The Full Commission therefore affirms the administrative law judge’s \ndismissal of the claim, without prejudice. \n \n \n\nDANIELS - H308265  2\n  \n \n \n IT IS SO ORDERED. \n \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1325,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H308265 DAVID L. DANIELS, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYNET CORP., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 29, 2026","outcome":"affirmed","outcomeKeywords":["affirmed:2","dismissed:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.565Z"},{"id":"full_commission-H208121-2026-04-29","awccNumber":"H208121","decisionDate":"2026-04-29","decisionYear":2026,"opinionType":"full_commission","claimantName":"Zuleyka Pichardo","employerName":"Prairie Grove Elementary School","title":"PICHARDO VS. PRAIRIE GROVE ELEMENTARY SCHOOL AWCC# H208121 April 29, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Pichardo_Zuleyka_H208121_20260429.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Pichardo_Zuleyka_H208121_20260429.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H208121 \n \nZULEYKA PICHARDO, \nEMPLOYEE \n \nCLAIMANT \nPRAIRIE GROVE ELEMENTARY SCHOOL,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSN., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 29, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JAMES A. ARNOLD II, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nSeptember 8, 2025.  The administrative law judge found that the claimant \nfailed to prove she sustained a compensable injury “in the form of thoracic \noutlet syndrome.”  After reviewing the entire record de novo, the Full \nCommission affirms the administrative law judge’s opinion.     \nI.  HISTORY \n Zuleyka Maria Pichardo Sanabria, now age 39, testified that she \nbecame employed with the respondents on September 26, 2022.  The \n\nPICHARDO - H208121  2\n  \n \n \nparties stipulated that the employment relationship existed on November 4, \n2022.  The claimant testified on direct examination: \n Q.  Where did you work on November 4\nth\n of 2022? \n A.  I was working at the school, elementary, Prairie Grove. \n Q.  And what was your job there? \n A.  I was serving food to the students.... \n Q.  And what happened on November 4\nth\n of 2022? \nA.  I was serving lunch, some food during lunch.  One of my \nfriends handed me a pizza tray.  I put the pizza tray in the \nwarmer.  So when I was turning around, I actually slipped and \nI fell on my knee.  When I was trying to hold on to something \nwith my left hand, on the sting (sic) table that they had, and \ntried to get up, there was a police officer.  He was a co-\nworker.  His name was Paredes and he tried to help me up.  \nSo I went to the office, to the manager, Danielle.  I actually \nwent with the officer and he helped me interpret.... \nQ.  And how did you land? \nA.  I slipped. \nQ.  And did you fall onto your back or onto your side?  How \ndid you land? \nA.  I fell on my back.   \n \n Danielle Patton testified that she was employed with the \nrespondents.  The respondents’ attorney examined Ms. Patton: \n  Q.  And what do you do there? \n  A.  I am the manager of the elementary kitchen. \n  Q.  Was that your position back in November of ’22? \n  A.  Yes.   \nQ.  Okay.  And I am going to mispronounce her name, but did \nZuleyka Pichardo work in the kitchen at the elementary school \nwhile you were there? \nA.  Yes. \nQ.  And do you recall having a conversation with her on \nNovember 4\nth\n of 2022? \nA.  Yes. \nQ.  What was that about? \nA.  She told me that she fell. \nQ.  And did she tell you what body part she hurt? \n\nPICHARDO - H208121  3\n  \n \n \nA.  She said her knee and lower back. \nQ.  Did she mention any other body parts? \nA.  No.   \nQ.  And was somebody there interpreting for her? \nA.  The janitor at the school.   \n \n According to the record, the claimant treated at MANA Urgent Care \non November 7, 2022: \nMs. Sanabria is a 35 y/o female non-English speaking (Kim \ninterpreted) presents to urgent care c/o “.... I got hurt at \nwork....I slipped....hurt my back....all the back....and the \nknee....right knee and leg.”   \nHer injury occurred three days ago at one of the local schools \nin Prairie Grove.  She did not seek treatment at that time.   \nHer back pain is from “top to bottom” and she points above \nher bilateral scapulas and tells me the pain goes all the way to \nher bilateral lumbar region.... \nBACK:  Back without deformity.  Tenderness about \nparaspinous muscles in thoracic and lumbar region.   \n \n Dr. Brent Witherington assessed “1.  Lumbar back pain,” “2.  Right \nknee pain,” “3.  Acute bilateral thoracic back pain,” and “4.  Morbid obesity.”  \nDr. Witherington planned conservative treatment.   \n An x-ray was taken on November 8, 2022: \n  History:  Mid and lower back pain after fall at work.   \nFINDINGS:  PA and lateral views of the thoracic and lumbar \nspine were obtained.  The T1 vertebral body is not included \non this exam.  There is normal vertebral body height and \nalignment.  No evidence of a fracture or subluxation is seen.  \nThe paravertebral soft tissue muscles are unremarkable. \nIMPRESSION:  1.  Unremarkable exam.   \n \n Dr. Witherington’s assessment on November 16, 2022 included “1.  \nAcute bilateral thoracic back pain.”  Dr. Witherington noted on November \n\nPICHARDO - H208121  4\n  \n \n \n16, 2022, “Her plain films of the lumbar spine, thoracic spine and right knee \nwere unremarkable per radiology....Her exam is benign today and her \ncomplaints are fairly subjective.  She has not been compliant with treatment \nrecommendations.  I releasing (sic) her back to full duty.” \n The record indicates that the claimant was provided a series of \nphysical therapy visits at MANA Physical Therapy beginning November 17, \n2022.  It was noted at that time, “Patient is a 35yo female with a 10-day \nhistory of low back, upper back and right knee pain.  She fell at work and \nhas been having pain since then.”   \n A physical therapist noted on January 26, 2023, “She continues to \nhave significant pain (7/10) in the lower back and right knee.  Patient also \nreports development of LUE radiculopathy.”   \n The claimant treated at Washington Regional Urgent Care on \nFebruary 9, 2023:  “Fell November 2022 at work landing on right knee then \nfalling backwards landing on back.  Has had back pain thoracic region since \nas well as knee hurting.”   \n The claimant reported at Rise Physical Therapy on February 23, \n2023, “I was serving food for the kids and when I realized someone left the \npizza in the oven, I turned around to get the pizza out when I slipped and \nfall (sic) to the floor hitting my right knee.”     \n\nPICHARDO - H208121  5\n  \n \n \n A physical therapist noted on March 2, 2023, “Patient was seen in \nour office for 15 visits for low back and right knee pain after a fall at work.  \nShe did not report any significant improvements in pain but wanted to \ncontinue therapy.  It was suggested that she return to PCP and get re-\nassessed before continuing therapy due to lack of progress.  We are \ndischarging her at this time, thank you for the referral.”  \n It was noted at Rise Physical Therapy on March 27, 2023, “Zuleyka \nreports that she went back to work today.  States that she’s very tired and \nback is hurting more today.”    \n Dr. Loren Guzman reported on May 4, 2023, “Patient is a 36 yo with \nPMH of asthma who was referred from Alison Knox APRN for evaluation \nand management of low back pain that started after a fall in November \n2022 at work where she fell forward, landing on her knee and fell back on \nher back grabbing two things at her side to stop her fall.  This pain has been \npersistent despite NSAIDs, muscle relaxants and PT....Skin color, \ntemperature are normal in all 4 extremities.”   \n An MR of the claimant’s thoracic spine was taken on May 17, 2023: \n  History:  Back pain after fall.... \nFindings:  The alignment of the thoracic spine is normal.  \nVertebral body heights are maintained.  The marrow signal \nnormal.  The thoracic cord signal is normal.  Mild T7-T8 and \nT8-T9 disc bulges.  No significant central canal or \nneuroforaminal stenosis.  The visualized portions of the chest \nand upper abdomen are unremarkable. \nIMPRESSION:  No acute abnormality in the thoracic spine.   \n\nPICHARDO - H208121  6\n  \n \n \n \n An MRI of the claimant’s cervical spine was taken on July 28, 2023 \nwith the impression, “Negative exam.”   \n The claimant participated in a Functional Capacity Evaluation on \nOctober 31, 2023:  “Ms. Pichardo is referred with complaints of on-going \npain in her neck, both arms and her right knee which she attributed to \ninjuries she sustained in a work related accident....The results of this \nevaluation indicate that an unreliable effort was put forth, with 18 of 46 \nconsistency measures within expected limits....Ms. Pichardo completed \nfunctional testing on this date with unreliable results.  Overall, Ms. \nPichardo demonstrated the ability to perform work in at least the LIGHT \nclassification of work[.]”   \n Dr. Guzman noted on December 27, 2023 and January 30, 2024, \n“Skin color, temperature are normal in all 4 extremities.”   \n An MRI of the claimant’s left shoulder was taken on February 21, \n2024 with the impression, “No left rotator cuff or labral tear.”   \n An APRN reported on February 29, 2024: \nShe is tearful and would like a permanent fix to her problem.  \nShe has crepitus around the shoulder girdle with movement of \nher left shoulder.  No shoulder joint pain.  She had a normal \nMRI and has already tried ESI without improvement in this \npain. \nWe sent for updated cervical and left shoulder MRI – these do \nnot show any abnormalities to explain her pain.  We are not \nsure why she continued to have trapezius pain.  Shoulder \n\nPICHARDO - H208121  7\n  \n \n \ninjury could have occurred from the mechanism of injury \n(catching herself as she fell). \nWill again send to Sports Medicine for further evaluation.   \n \n Dr. Robert Benafield, Jr. examined the claimant on March 28, 2024: \nPatient is a 37-year-old right-hand-dominant female who \nworks with School district in the kitchen.  She was at work on \n11/4/2022 when she fell injuring her left shoulder and neck.  \nShe has treatment for now for over a year and evidently \nnobody has really looked at her left shoulder.  She had an \nMRI of her left shoulder about a month ago that was normal \nother than a type II acromion.  She was referred here for \nshoulder evaluation.  She has had no physical therapy for the \nshoulder no injections into the shoulder.  She reports pain with \nabduction and internal rotation and pain at night.  She has \nbeen on full duty work because she failed an FCE.... \nI discussed with the patient and her companion and the nurse \ncase manager.  I think she may have impingement of the \nshoulder.  We discussed etiology natural  history and \ntreatment.  She was offered a corticosteroid injection in the \nsubacromial space agreed and tolerated it well.  She will go to \nphysical therapy for a month.  She can return to work with no \noverhead lifting and no lifting greater than 10 pounds.  I will \nsee her back in a month for recheck.   \n \n Dr. Benafield assessed “1.  Impingement syndrome of left shoulder \nregion.”   \n Dr. Benafield ordered an NM BONE THREE PHASE STUDY, which \nwas performed on May 8, 2024: \n  HISTORY:  Impingement syndrome of left shoulder.... \nFINDINGS:  Flow, blood pool and delayed images \ndemonstrate no abnormal areas of increased radiotracer \nactivity in the right or left shoulders.  No evidence of \nosteomyelitis.   \nIMPRESSION:  1.  NORMAL TRIPLE PHASE BONE SCAN \nOF THE LEFT SHOULDER.   \n \n\nPICHARDO - H208121  8\n  \n \n \n The claimant followed up with Dr. Benafield on May 21, 2024: \nPatient seen in follow-up after the triple phase bone scan.  \nThis was normal showing no areas of inflammation.  She is \n(sic) now had no response or improvement with an injection \nwhich is suggest (sic) that the problem is not coming from her \nshoulder and negative bone scan which again suggest (sic) \nthat there is not a problem in her shoulder.  She failed an FCE \nwith unreliable results.... \nI have discussed with the patient and her companion \nregarding her visit results.  We discussed how there is (sic) \nbeen no objective findings that really show any significant \npathology in her shoulder.  I do not know what to make of her \npain but I cannot explain it.  It is possible this is related to \npsychological issues.  She may need to see a pain specialist.  \nBased on the negative bone scan and the failed FCE I am \ngoing to release her to MMI with 0 permanent impairment.  \nShe is released from my care.   \n \n Dr. Christopher P. Dougherty reported on July 15, 2024: \nThe patient presents to the office today regarding left shoulder \npain with numbness and tingling down her arm.  This began \nafter a work injury 11/4/2024.  She has tried conservative care \nof physical therapy, rest with activity modification, cortisone \ninjections and medical with little to no relief of the pain.  She \nhas had several studies completed of the cervical spine, \nthoracic spine and left shoulder including MRI’s and a bone \nscan.  She has a very positive adson’s.  All the testing was \nreviewed today have been reported as normal test with no \nabnormalities noted.  Her exam is consistent with thoracic \noutlet syndrome.  We will need to send her for an MR \nvenogram of the neck to check for this.  We will check bilateral \nsides for comparison.  We will work on approval for this and \nwill see her back to discuss the results once the test is \ncompleted.  For work her restrictions are only right arm use.  \nNo left arm use at this time.   \n \n Dr. Benafield was provided a “Major Contributing Cause Physician \nLetter” on July 19, 2024.  Dr. Benafield reported that the claimant’s \n\nPICHARDO - H208121  9\n  \n \n \ndiagnosis was “Shoulder impinegment (sic).”  Dr. Benafield stated, “If she \nhas TOS it is not related to her injury.”   \nThe claimant followed up with Dr. Dougherty on September 9, 2024: \nShe returns to the office today to discuss her MR findings.  \nShe had an MR angio chest W/WO contrast at Northwest \nMedical in Bentonville on 8/16/24.  Her MRI was \nindependently reviewed and agreed with outside interpretation \nand findings of thoracic outlet syndrome of the left side.  Her \nexam remains consistent with these findings.  She will need to \nbe referred to Washington Regional to Dr. James Counce for \nfurther treatment.  Her current work restriction will remain no \nlifting with the left upper extremity.  Her TOS is post traumatic \nfrom having to catch herself at work during her fall.  At that \ntime scar tissue in the form of fibrotic bands can form after \nhyperextension injuries, and this is well documented in the \nliterature.  Based on her mechanism of injury where she \nexperienced hyperextension of the arm while falling, to catch \nherself, this is consistent with the induction of the scar tissue \nformation resulting in her thoracic outlet syndrome. \n \n Dr. Dougherty diagnosed “1.  Left thoracic outlet syndrome.”   \n Dr. Theodore Hronas corresponded with the respondents’ attorney \non September 20, 2024: \n At your request, the following films and reports were reviewed: \n Clinical records provided. \n MRA of the chest, 08/16/2024. \nThe clinical history is of a work-related accidental injury that \noccurred on 11/04/2022 and described as, “I got hurt at work, \nI slipped hurt my back, all the back, and the knee and right \nknee and leg.”  An MRA of the chest is presented for review.  \nThe study is of good quality and sufficient for diagnostic \npurposes.  The indication for this exam was concern for \nthoracic outlet syndrome.  I am a board-certified radiologist \nwith additional training in body and musculoskeletal MRI, and \ntherefore my focus will be on the imaging study provided.   \n\nPICHARDO - H208121  10\n  \n \n \nThe initial pre contrast images of the upper chest demonstrate \nnormal mediastinal and upper thoracic anatomy with no \nevidence of mass or lymphadenopathy.  The brachial plexus \nis normal in appearance bilaterally.  Pre and post contrast \nimages of the chest demonstrate normal appearance of the \ngreat vessels.  The common carotid, vertebral, and subclavian \narteries are normal in size and caliber with no evidence of \nstenosis or abnormal extrinsic mass effect.  The internal \njugular and subclavian veins are normal.  Specific attention to \nthe subclavian veins demonstrates no evidence of stenosis or \nextrinsic mass effect.  No abnormal venous collateral vessels \nare present.   \nIn summary, the MRA of the chest is normal with no evidence \nof either arterial or venous stenosis, occlusion, or extrinsic \nmass effect.  Specifically, there are no objective imaging \nfinding (sic) that would suggest presence of thoracic outlet \nsyndrome.   \nMy findings herein are stated within a reasonable degree of \nmedical certainty.   \n \n Dr. James S. Counce reported on or about September 26, 2024: \nThis is a 37-year-old female who fell at work 2 years ago and \nhad to catch herself on her left arm ever since then she has \nhad pain ever since.  She has weakness numbness tingling of \nthe left arm and discoloration when she raises her left arm.  \nShe has underwent physical therapy and extensive imaging \nworkup.  MRI chest shows mild-to-moderate narrowing of the \nleft subclavian vein underlying the clavicle in the arms in the \nup position.  She was referred for thoracic outlet \nsyndrome[.]... \nShe has thoracic outlet syndrome on the left.  Her left arm is \nswollen and discolored with pain, numbness and loss of \nstrength.  Schedule left robotic assisted thoracic surgery with \n1\nst\n rib resection.   \n \n Dr. Counce performed a procedure on October 31, 2024:  “Left \nrobotic-assisted thoracic surgery with first rib resection and venolysis.”  The \n\nPICHARDO - H208121  11\n  \n \n \npre- and post-operative diagnosis was “Left-sided thoracic outlet \nsyndrome.”   \n Dr. Counce reported on March 11, 2025: \nThis is a 37-year-old Hispanic female, who fell at work 2 years \nago and had to catch herself on her left arm.  Ever since then, \nshe has complained of pain weakness, numbness and tingling \nof her left arm as well as discoloration when she raises it over \nher head.  She went to physical therapy and has had \nextensive imaging workup.  MRI of her chest showed mild to \nmoderate narrowing of the left subclavian vein, underlying the \nclavicle and the arms in the up position.  She was referred to \nour clinic for evaluation.  It was felt that she does have a true \nthoracic outlet syndrome and she is scheduled for a left \nrobotic assisted thoracic surgery with 1\nst\n rib resection.  She \nconsented to the procedure and was taken to the operating \nroom on 10/31/2024.  She was last seen on November 12, \n2024 during that visit, she looked good.  She was breathing \nwithout difficulty.  She had full range of motion.  She was a \nlittle reluctant to left (sic) arm above her head.  Her chest x-\nray was unremarkable.  Her surgical wounds were healing \nnicely.  Plan for outpatient physical therapy and occupational \ntherapy.  Plan was to see back in 4 months with a repeat \nchest x-ray at that time.   \nShe only got 10 sessions of PT before her insurance stopped \npaying.  She continues to have a lot of pain, numbness, \ntingling in her arm and hand.  She has temperature changes \nin her arm when trying to use it.  Her hand is too weak to hold \na glass of water....She feels unable to return to work, she is \ntoo weak and in too much pain.... \nShe has no more popping or grinding.  She still has pain in \nher left shoulder and arm....Plan to see her back 8 months \nwith a chest x-ray.  I am afraid she is going to have chronic \npain that we can not do much about other than refer her for \nchronic pain management.   \n \n The respondents’ attorney examined Dr. Counce at a deposition \ntaken April 1, 2025: \n\nPICHARDO - H208121  12\n  \n \n \n  Q.  Tell us about thoracic outlet syndrome.... \nA.  Thoracic outlet syndrome is a compression syndrome \nassociated with either the thoracic inlet or thoracic outlet, \nwhich is this small space where structures are traveling from \nthe neck to the chest or from the chest to the neck, are \ncompressed by first rib muscles and other things, and it can \ncause a variety of problems;  pain, swelling.  It can cause \narterial aneurysms; it can cause venous occlusion; it can \ncause neuralgia from these nerve trunks that are coming from \nthe neck down to the arm.  It’s a syndrome; it’s not a disease \nand so it’s hard to assign a single blood work or single test.  \nIt’s more a constellation of symptoms and findings and lack of \nfindings, also, that go with thoracic outlet syndrome.   \nQ.  Am I correct in understanding that thoracic outlet \nsyndrome can either be due to trauma or can be due to \ncongenital or anatomical variants? \nA.  That’s correct.   \nQ.  When you initially saw this patient, what history did you \nget from her? \nA.  What I have recorded is she was 37 years old at the time \nthat I saw her and she fell at work two years ago and had to \ncatch herself on her left arm and since then she has had pain.  \nShe has weakness, numbness, tingling in the left arm, and \ndiscoloration when she raises her left arm.  She has – she \nhad undergone physical therapy and extensive imaging \nworkup.  An MRI, the chest showed mild or moderate \nnarrowing of the left subclavian vein with some venous \ncollaterals underlying the clavicle in the arms-up position, and \nshe was referred to us because – and I have forgotten who it \nwas that referred her to us because they thought she had \nthoracic outlet syndrome.... \nQ.  The claim is that this thoracic outlet syndrome arose as a \nresult of the fall that occurred.  Do you have an opinion as to \nthat, other than relying on the history she gave you?  In other \nwords, was there anything about her physical findings, either \non examination or during the operative procedure, which \nsuggested that it had to be due to trauma as opposed to \nsomething else? \nA.  No.   \nQ.  So any opinion regarding work-relatedness would be \ndependent on the history that she gave you? \nA.  That’s correct. \n\nPICHARDO - H208121  13\n  \n \n \n \n A pre-hearing order was filed on April 15, 2025.  The claimant \ncontended, “Claimant contends she is entitled to treatment as \nrecommended by Dr. Dougherty for her injuries sustained on 11/4/2022, \nincluding treatment for thoracic outlet syndrome.”   \n The parties stipulated that the respondents “have controverted this \nclaim in its entirety.”  The respondents contended, “All appropriate benefits \nhave been paid.”   \n The parties agreed to litigate the following issues: \n1.  Whether Claimant sustained a compensable injury to her \nthoracic outlet resulting in thoracic outlet syndrome. \n2.  Whether Claimant is entitled to medical treatment as \nrecommended by Dr. Christopher Dougherty, including \ntreatment for thoracic outlet syndrome. \n3.  Whether Claimant is entitled to temporary total disability \nbenefits from October 31, 2024 to a date yet to be \ndetermined. \n4.  Whether Claimant’s attorney is entitled to an attorney’s fee.   \n5.  Claimant reserves all other issues.   \n \n After a hearing, an administrative law judge filed an opinion on \nSeptember 8, 2025.  The administrative law judge found, among other \nthings, that the claimant failed to prove she sustained a compensable injury \n\"in the form of thoracic outlet syndrome.\"  The administrative law judge \ntherefore denied and dismissed the claim “in its entirety.”  The claimant \nappeals to the Full Commission.   \nII.  ADJUDICATION \n\nPICHARDO - H208121  14\n  \n \n \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.]   \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n An administrative law judge found in the present matter, “2.  The \nclaimant has failed to prove by a preponderance of the evidence that she \nsustained a compensable injury in the form of thoracic outlet syndrome.”  \nThe Full Commission affirms this finding.  The parties stipulated that the \nemployment relationship existed on November 4, 2022.  The claimant \ntestified that she slipped and fell on her knee.  The claimant testified that \n\nPICHARDO - H208121  15\n  \n \n \nshe “was trying to hold on to something with my left hand” when she fell.  \nThe record indicates that the respondents initially accepted the claim and \nprovided benefits primarily related to symptoms which included back pain. \n The credibility of witnesses and the weight to be given their \ntestimony are matters exclusively within the province of the Commission.  \nJohnson v. Democrat Printing & Lithograph, 57 Ark. App. 274, 944 S.W.2d \n138 (1997).  The Commission is not required to believe the testimony of the \nclaimant or any other witness, but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Jackson \nv. Circle T. Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995).   \n The claimant contends that she “sustained a compensable injury to \nher thoracic outlet resulting in thoracic outlet syndrome.”  The Full \nCommission finds that the claimant was not a credible witness, and that the \nclaimant did not prove by a preponderance of the evidence that she \nsustained a compensable injury to her thoracic outlet.  The evidence of \nrecord does not corroborate the claimant’s assertion that she sustained an \ninjury to her thoracic outlet as the result of “grabbing” with her left hand.  \nWe find credible Danielle Patton’s testimony that the claimant asserted \ninjuries only to her knee and lower back.  Nor did the medical evidence \ncorroborate the claimant’s testimony.  The claimant informed the medical \nproviders at MANA Urgent Care on November 7, 2022 that she had injured \n\nPICHARDO - H208121  16\n  \n \n \nher back and right knee.  An x-ray of the claimant’s back on November 8, \n2022 was unremarkable.  Dr. Witherington assessed “1.  Acute bilateral \nthoracic back pain” on November 16, 2022.  A series of physical therapy \nnotes beginning November 17, 2022 indicated that the claimant complained \nof “low back, upper back and right knee pain.”  There was no report of pain \nrelated to the claimant’s thoracic outlet.  The claimant continued to inform \nvarious medical providers that she had injured her back and knee.  The \nrecord indicates that the claimant returned to work for the respondents on \nor about March 27, 2023.     \n On May 4, 2023, the claimant asserted for the first time that she \n“grabbed two things” to stop her fall on November 4, 2022.  Dr. Guzman \nreported on May 4, 2023, “Skin color, temperature are normal in all 4 \nextremities.”  An MR on May 17, 2023 showed “No acute abnormality in the \nthoracic spine.”  Dr. Guzman continued to note on December 27, 2023 and \nJanuary 30, 2024, “Skin color, temperature are normal in all 4 extremities.”   \n An APRN reported on February 29, 2024 that the claimant had \nsustained a shoulder injury which “could have occurred from the \nmechanism of injury (catching herself as she fell).”  The evidence before the \nCommission does not demonstrate that the claimant “caught herself” with \neither upper extremity in order to prevent the slip and fall which occurred on \nNovember 4, 2022.  Dr. Benafield’s assessment on March 28, 2024 was “1.  \n\nPICHARDO - H208121  17\n  \n \n \nImpingement syndrome of left shoulder region.”  Nevertheless, Dr. \nBenafield released the claimant with 0% permanent impairment on May 21, \n2024.   \n Dr. Dougherty opined on July 15, 2024 that the claimant’s \nexamination was “consistent with thoracic outlet syndrome.”  On October \n31, 2024, Dr. Counce performed a “Left robotic-assisted thoracic surgery \nwith first rib resection and venolysis.”  Dr. Counce diagnosed “Left-sided \nthoracic outlet syndrome.”  Dr. Counce had stated on September 26, 2024 \nthat the claimant “fell at work 2 years ago and had to catch herself on her \nleft arm ever since then she has had pain ever since.”  The evidence does \nnot corroborate Dr. Counce’s conclusion that the claimant “had to catch \nherself” and as a result injured her left arm on September 26, 2024.   \n The Commission has the authority to accept or reject a medical \nopinion and the authority to determine its medical soundness and probative \nforce.  Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 \n(1999).  It is within the Commission’s province to weigh all of the medical \nevidence and to determine what is most credible.  Minnesota Mining & Mfg. \nv. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present matter, the \nFull Commission finds that the opinions of Dr. Witherington, Dr. Benafield, \nand Dr. Hronas are entitled to more evidentiary weight than the opinions of \nDr. Doughtery and Dr. Counce.  The Full Commission attaches significant \n\nPICHARDO - H208121  18\n  \n \n \nevidentiary weight to Dr. Benafield’s opinion on July 19, 2024, “If she has \n[Thoracic Outlet Syndrome] it is not related to her injury.” \n The Full Commission finds that the claimant did not prove she \nsustained an accidental injury causing physical harm to her thoracic outlet.  \nThe Full Commission finds that the claimant did not prove she sustained an \ninjury to her thoracic outlet which arose out of and in the course of \nemployment, required medical services, or resulted in disability.  The \nclaimant did not prove that she sustained an injury to her thoracic outlet \nwhich was caused by a specific incident or was identifiable by time and \nplace of occurrence.   \n The Full Commission therefore affirms the administrative law judge’s \nfinding that the claimant failed to prove by a preponderance of the evidence \nthat she sustained a compensable injury in the form of thoracic outlet \nsyndrome.  The claimant did not prove that treatment provided by Dr. \nCounce, including surgery, was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  The claimant did not prove she \nwas entitled to any period of temporary total disability benefits in \naccordance with Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 \nS.W.3d 392 (1981), or Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, \n41 S.W.3d 822 (2001).  This claim is respectfully denied and dismissed. \n \n\nPICHARDO - H208121  19\n  \n \n \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n \nThe Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant has failed to prove by a preponderance of the evidence that \nshe sustained a compensable injury in the form of thoracic outlet syndrome \nand  by  virtue  of  that  decision  all  remaining  benefits  were  denied.  After \nreviewing the entire record de novo, I disagree with the findings of the ALJ.  \nI would find that the Claimant has proved by a preponderance of the evidence \nthat she suffered a compensable injury to her thoracic spine in the form of \nthoracic  outlet  syndrome,  as  a  result  of  her  work  accident  of  November  4, \n2022.  I  would  further  find  that  Claimant  is  entitled  to  reasonable  and \nnecessary  medical  treatment  as  recommended  by  Dr.  Dougherty,  and \ntemporary total disability benefits from October 31, 2024, to a date yet to be \ndetermined. \n1. The Claimant proved that she sustained a compensable injury that \ncaused thoracic outlet syndrome. \n\nPICHARDO - H208121  20\n  \n \n \nTo  establish  a  compensable  injury  by  a  preponderance  of  the \nevidence  the  Claimant  must  prove:  (1)  an  injury  arising  out  of  and  in  the \ncourse of employment; (2) that the injury caused internal or external harm to \nthe body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings, as defined in Ark. Code \nAnn.  §11-9-102(16),  establishing  the  injury;  and  (4)  that  the  injury  was \ncaused  by  a  specific  and  identifiable  time  and  place  of  occurrence.  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 Ark. \nApp. 273, 72 S.W.3d 560 (2002).  \nThe  employer  takes  the  employee  as  he  finds  him.  Conway \nConvalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. App. \n1979).  A pre-existing disease or infirmity does not disqualify a claim if the \nemployment  aggravated,  accelerated,  or  combined  with  the  disease  or \ninfirmity  to  produce  the  disability  for  which  compensation  is  sought.  See, \nNashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); \nConway Convalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 \n(Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 \nS.W.2d 550 (1996). An increase in symptoms of a pre-existing degenerative \n\nPICHARDO - H208121  21\n  \n \n \ncondition is sufficient to establish a compensable injury.  Parker v. Atlantic \nResearch Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004). \nOn  November  4,  2022,  the  Claimant  slipped  and  fell  onto  her  right \nknee and back as she was serving lunch for the Respondent in the course \nand scope of her employment.  Claimant testified that she attempted to break \nher fall by grabbing a serving table with her left hand.  Following the incident, \nClaimant was escorted by a coworker to the office to report the incident to a \nmanager named Danielle.  \n The Claimant first sought medical care on November 7, 2022, at the \nMANA Urgent care.  At this visit, Claimant reported an injury to her back, right \nknee  and  leg  as  the  result  of  the  work  accident  on  November  4,  2022. \nClaimant  underwent  x-rays  which  showed  no  remarkable  injuries.  The \nClaimant was diagnosed with lumbar back pain, acute bilateral  thoracic back \npain, and right knee pain.  Claimant was then prescribed pain medication and \nreferred for physical therapy.  \n The  Claimant  was  seen  by  MANA  Physical  Therapy  on  multiple \noccasions,  up  to  and including  June  21,  2023.  The  Claimant  consistently \nreported  upper  and  lower  back  pain,  as  well  as  right  knee  pain  at  these \nappointments.  On  January  26,  2023,  the  Claimant  additionally  reported \nradiculopathy in her left upper extremity to her physical therapist.  Claimant \nhas a significant medical history of lumbar pain and carpal tunnel symptoms \n\nPICHARDO - H208121  22\n  \n \n \nprior  to  her  work-related  incident  on  November  4,  2022,  however,  the  left \nupper  extremity  symptoms  are  new  findings.  Various  medical  providers \nevaluated the Claimant’s medical condition and offered possible diagnoses \nof  shoulder  impingement  syndrome  as  well  as  complex  regional  pain \nsyndrome.  \nOn  May  21,  2024,  Dr.  Robert  Benafield  placed  the  Claimant  at \nmaximum medical improvement and gave her a 0% permanent impairment \nrating, stating that there were not objective findings to show any significant \npathology  in  her  left  shoulder.    The  Claimant  requested  and  received  a \nChange of Physician order to be seen by Dr. Chris Dougherty.  Claimant was \nfirst seen by Dr. Dougherty on July 15, 2024.  Dr. Dougherty noted that the \nClaimant was suffering from left shoulder pain, numbness in her left arm and \nhad a positive Adson’s test.  Following this examination, Dr. Dougherty stated \nthat the Claimant’s symptoms were consistent with thoracic outlet syndrome. \nDr.  Dougherty  ordered  an  MR  venogram  which  showed  the  Claimant  as \nhaving thoracic outlet syndrome.  Dr. Dougherty then referred the Claimant \nto Dr. James Counce for further evaluation and treatment.  \nClaimant was seen by Dr. James Counce on September 26, 2024.  Dr. \nCounce  noted  Claimant  as  having  swelling,  pain,  discoloration,  numbness \nand loss of strength in her left arm.  The Claimant was again diagnosed with \n\nPICHARDO - H208121  23\n  \n \n \nthoracic outlet syndrome.  Dr. Counce recommended surgery for her thoracic \noutlet syndrome.  Claimant underwent surgery on October 31, 2024.  \n As noted by the ALJ, thoracic outlet syndrome is an unusual malady \nin workers’ compensation.  However, the medical records of Dr. Dougherty \nand Dr. Counce prove that the Claimant suffered from an objective condition \nand refer to various physical findings such as a  positive Adson’s test, as well \nas discoloration and swelling of the Claimant’s left upper  extremity.  Dr. \nDougherty also confirmed these objective findings through the results of the \nClaimant’s venogram.  \nA letter by Dr. Theodore Hronas was presented at the hearing to rebut \nthe findings made by Dr. Dougherty and Dr. Counce.  However, I give this \nevidence  less  evidentiary  weight  than  the  findings  of  Dr.  Dougherty.  This \ndecision is based upon the discretion and duty of the Commission to make \ndeterminations of credibility, weigh the evidence, and to resolve conflicts of \nmedical testimony and evidence.  Martin Charcoal, Inc. v. Britt, 284 S.W.3d \n91 (Ark. App. 2008).  Dr. Hronas states that there is “no objective imaging \nfinding that would suggest [the] presence of thoracic outlet syndrome.”  This \nopinion is solely based upon a review of the July 16, 2024, film and report.  \nIn  contrast,  Dr.  Dougherty  examined  the  Claimant  in  person,  reviewed  her \nmedical history as well as prior diagnostic testing and performed a physical \nexamination.  Specifically, Dr. Dougherty found that the Claimant had a “very \n\nPICHARDO - H208121  24\n  \n \n \npositive  adsons  [test.]”  Despite  the  letter  of  Dr.  Hronas,  I  find  that  the \nClaimant  suffered an objective  compensable  injury  to her  thoracic  spine  in \nthe form  of  thoracic outlet  syndrome  as  a  result of her  November  4, 2022, \nwork-accident.  \n Arkansas   law   recognizes   that   an   aggravation   of   a   preexisting \ncondition  by  a  compensable  injury  is  itself  compensable.  Mineral  Springs \nSchool District v. Macon,704 S.W.3d 374 (Ark. App. 2025).  Further, the work \naccident is not required to be the original cause of the underlying abnormality. \nWright v. St. Vincent Doctors Hospital Indemnity Ins. Co. of N. Am., 2012 Ark. \nApp. 153 and Cooper Tire & Rubber Co. v. Leach, 2012 Ark. App. 452.  Also, \ndelayed  symptom  onset  does  not  preclude  a  finding  of  compensability. \nUniversity of Arkansas for Medical Sciences v. Barton, 2022 Ark. App. 181. \nIn the case at hand, the Claimant suffered from an objective condition that \nresulted  in  discoloration,  swelling,  pain  and  numbness  in  her  left  upper \nextremity.  These symptoms began somewhat progressively after her work \naccident of November 4, 2022.  \nAlthough the Claimant had medical problems that predated the work \naccident,  the  evidence  in  the  record  supports  the  conclusion  that  the \nClaimant’s work-related  accident  on  November  4,  2022,  either  caused  her \nthoracic  outlet  syndrome  or  substantially  and  materially  contributed  to  the \ndevelopment of the condition.  Therefore, I would reverse the decision of the \n\nPICHARDO - H208121  25\n  \n \n \nALJ  and   find   that   the   Claimant  has   met   her   burden   of   proof  by   a \npreponderance of the evidence that she sustained a compensable injury in \nthe form of thoracic outlet syndrome as the result of her November 4, 2022, \nwork accident.  \n2.  The  Claimant  is  Entitled  to  Reasonable  and  Necessary  Medical \nBenefits for her Compensable Injury. \nAn  employer  shall  promptly  provide  for  an  injured  employee  such \nmedical  treatment as may  be  reasonably necessary  in  connection with  the \ninjury received by the employee.  Ark. Code Ann. § 11-9-508(a).  Reasonable \nand necessary medical services may include those necessary to accurately \ndiagnose  the  nature  and  extent  of  the  compensable  injury;  to  reduce  or \nalleviate symptoms resulting from the compensable injury; or to maintain the \nlevel of healing achieved; or to prevent further deterioration of the damage \nproduced by the compensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. \nApp. 100, 911 S.W.2d 593 (1995).  \nThe Claimant sustained a compensable injury in the form of thoracic \noutlet syndrome as a result of her work accident of November 4, 2022.  The \nClaimant obtained a change of physician order through this commission and \nwas  seen  by  Dr.  Christopher  Dougherty  on  July  15,  2024.  Dr.  Dougherty \ndiagnosed the Claimant with thoracic outlet syndrome and then referred the \nClaimant to Dr. James Counce.  Dr. Counce recommended surgery.  Based \n\nPICHARDO - H208121  26\n  \n \n \nupon  the  medical  records,  I  find  that  the  medical  treatment  the  Claimant \nreceived for her thoracic outlet syndrome from Dr. Dougherty and Dr. Counce \nwas  both  reasonable  and  necessary  as  the  result  of  her  work  accident  of \nNovember 4, 2022.  \n3. The  Claimant  is  Entitled  to  Temporary  Total  Disability  Benefits \nfrom October 31, 2024 to a Date to be Determined. \n  To prove entitlement to temporary total disability benefits a Claimant \nmust prove that she remains in her healing period and that she suffers a total \nincapacity to earn wages.  Arkansas State Highway & Transportation Dept. \nv. Breshears, 613 S.W. 2d 392 (Ark. 1981).  The Claimant received surgical \ntreatment for her work-related thoracic outlet syndrome on October 31, 2024. \nThe  medical  notes  through  March  11,  2025,  indicate  that  Dr.  Counce \ncontinued to keep the Claimant off work through that date.  Based upon the \nevidence in the record in this matter I find that the Claimant met her burden \nof proof to demonstrate that she remained in her healing period and that she \nsuffered a total incapacity to earn wages.  Therefore, I find that the Claimant \nis  entitled  to  temporary  total  disability  benefits  from  October  31,  2024  to  a \ndate to be determined. \n4.   The Claimant’s Attorney is Entitled to an Attorney’s Fee. \nAn attorney’s  fee is appropriate in cases where indemnity benefits are \nawarded.  Ark. Code Ann. §11-9-715(a)(1)(B).  As I find that the Claimant is \n\nPICHARDO - H208121  27\n  \n \n \nentitled to temporary total disability, therefore an attorney’s fee would be \nappropriate and should be awarded.  \nAfter  my de  novo review  of  the  entire  record,  I  would  reverse  the \ndecision of the ALJ, and find that the Claimant met her burden of proof that \nshe sustained a compensable injury in the form of thoracic outlet syndrome \nas the result of her November 4, 2022 work accident, that she is entitled to \nreasonable and necessary medical treatment of her injury including medical \ntreatment rendered by Dr. Dougherty and Dr. Counce, that she is entitled to \ntemporary  total  disability  benefits  from  October  31,  2024,  to  a  date  to  be \ndetermined, and that her attorney is entitled to an attorney’s fee. \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":43355,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H208121 ZULEYKA PICHARDO, EMPLOYEE CLAIMANT PRAIRIE GROVE ELEMENTARY SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 29, 2026","outcome":"granted","outcomeKeywords":["granted:7"],"injuryKeywords":["thoracic","knee","back","lumbar","fracture","cervical","neck","shoulder"],"fetchedAt":"2026-05-19T22:29:43.591Z"},{"id":"alj-H503219-2026-04-29","awccNumber":"H503219","decisionDate":"2026-04-29","decisionYear":2026,"opinionType":"alj","claimantName":"Steven Armstrong","employerName":"Costco Wholesale Corp","title":"ARMSTRONG VS. COSTCO WHOLESALE CORP. AWCC# H503219 April 29, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Armstrong_Steven_H503219_20260429.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Armstrong_Steven_H503219_20260429.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H503219 \n \nSTEVEN L. ARMSTRONG, \nEMPLOYEE                                                                                                              CLAIMANT \n \nCOSTCO WHOLESALE CORP., \nEMPLOYER                                                                                                         RESPONDENT  \n \nSAFETY NATIONAL CASUALTY CORP., \nCARRIER                                                                                                             RESPONDENT \n \nHELMSMAN MANAGEMENT SERVICES, LLC, \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED APRIL 29, 2026 \n \nHearing conducted on Friday, March 31,  2026,  before  the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant is Pro Se, of Benton, Arkansas.  \n \nThe Respondents were represented by Mr. David C. Jones, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non January 15, 2026.  A hearing on the motion was conducted on March 31, 2026, in Little Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a gas station attendant. The date for \nClaimant’s  alleged  injury  was  on July 20,   2024. This   incident   was   reported   to   the \nRespondent/Employer on the  same  date. Admitted  into  evidence  was Respondents’ Exhibit 1, \npleadings, and correspondence, consisting of 29 pages, and Commission Ex. 1, emails, and U.S. \nMail return receipts, consisting of 6 pages, as discussed infra. \n\nARMSTRONG, AWCC No. H503219 \n \n2 \n \nThe record reflects on May 27, 2025, a Form AR-C was filed by Claimant purporting that \nClaimant sustained injuries to his right knee, left hip and shoulder, abdomen, and chest when he \ntripped over  a rolled-up  mat. On August 7, 2025, a Form AR-1 was filed  with the Commission \nnoting that Claimant’s injuries occurred while working on stocking D19. Also on August 7, 2025, \na Form AR-2 was filed denying compensability on the abdomen but accepting compensability for \nthe right hip and right knee.     \nThe Respondents filed  a motion to dismiss for lack of prosecution on January 15, 2026. \nThe Claimant was sent, on January 21, 2026, notice of the Motion to Dismiss, via certified and \nregular U.S. Mail, to his last known address. The certified motion notice was claimed by Claimant \nas noted on the January 28, 2026, return receipt. This notice was also sent regular U.S. Mail and \ndid  not  return  to  the  Commission. Despite  this,  the  Claimant  did not respond  to  the  Motion,  in \nwriting, as required. Thus, in accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of Respondents’ Motion to Dismiss hearing date to his current address \nof record via the United States Postal Service (USPS), First Class Certified Mail, Return Receipt \nRequested, and regular First-Class Mail, on February 24, 2026. The certified notice was claimed \nas noted by the March 2, 2026, return receipt. Likewise, the hearing notice sent regular First-Class \nwas not returned to the Commission. The hearing took place on March 31, 2026. And as mentioned \nbefore, the Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n\nARMSTRONG, AWCC No. H503219 \n \n3 \n \n \n2. The Claimant and Respondents both had reasonable notice of the March 31, 2026, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was claimed by Claimant, per the return postal notice bearing the March 2, 2026, date. Thus, \nI find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \nAR-C on May 27, 2025. Since then, he has failed to request a bona fide hearing. Therefore, I do \nfind by the preponderance of the evidence that Claimant has failed to prosecute his claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \n \n\nARMSTRONG, AWCC No. H503219 \n \n4 \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5893,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H503219 STEVEN L. ARMSTRONG, EMPLOYEE CLAIMANT COSTCO WHOLESALE CORP., EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY CORP., CARRIER RESPONDENT HELMSMAN MANAGEMENT SERVICES, LLC, TPA RESPONDENT OPINION FILED APRIL 29, 2026 Hearing conducted on Friday, March 31,...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["knee","hip","shoulder"],"fetchedAt":"2026-05-19T22:30:22.107Z"},{"id":"alj-H501821-2026-04-28","awccNumber":"H501821","decisionDate":"2026-04-28","decisionYear":2026,"opinionType":"alj","claimantName":"Neena Gober","employerName":"George’s Processing, Inc","title":"GOBER VS. GEORGE’S PROCESSING, INC. AWCC# H501821 April 28, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GOBER_NEENA_H501821_20260428.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GOBER_NEENA_H501821_20260428.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H501821 \n \nNEENA GOBER, Employee CLAIMANT \n \nGEORGE’S PROCESSING, INC., Employer RESPONDENT \n  \nCORVEL ENTERPRISE CLAIMS, INC., Carrier RESPONDENT \n \n OPINION FILED APRIL 28, 2026  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas; although not \npresent at hearing. \n \nRespondent represented by R. SCOTT ZUERKER Attorney, Fort Smith, Arkansas. \n \n OPINION \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn March  24,  2025, Evelyn  Brooks, claimant’s attorney, filed a  Form AR-C  requesting \nvarious  compensation  benefits in  which the  claimant alleged an  injury  to her  bilateral  hands, \nwrists and elbows and right thumb on or about September 11, 2024. No further action was taken \nin this claim. \nOn January 12, 2026, the respondents filed a Motion to Dismiss requesting that this claim \nbe  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for March  31,  2026.  Notice  of \nthat hearing was sent to the claimant by certified mail, return receipt requested on February 24, \n2026. United States Postal Department records indicate that claimant received and signed for the \nnotice on March 5, 2025. \n\nGober – H501821 \n2 \n \nMs.  Brooks indicated by email  dated  March 20, 2026, that she would  waive her \nappearance  at  the  hearing  and  further  indicated  that she had  no  objection  to  the  Motion  to \nDismiss “without prejudice.”    \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution.  After my review of \nthe respondent’s Motion to Dismiss, Ms. Brooks’ response  thereto she had  no  objection  to  the \nMotion  to  Dismiss  without  prejudice,  and  the  claimant’s  failure  to  appear  at  the  scheduled \nhearing,  as  well  as  all  other  matters  properly  before  the  Commission,  I  find  that  claimant  has \nfailed to prosecute this claim. Therefore, this claim is dismissed without prejudice.   \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2346,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H501821 NEENA GOBER, Employee CLAIMANT GEORGE’S PROCESSING, INC., Employer RESPONDENT CORVEL ENTERPRISE CLAIMS, INC., Carrier RESPONDENT OPINION FILED APRIL 28, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Springdale, Washington County, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:30:13.819Z"},{"id":"alj-H306827-2026-04-28","awccNumber":"H306827","decisionDate":"2026-04-28","decisionYear":2026,"opinionType":"alj","claimantName":"Geneva Green","employerName":"Commercial Trailer Products","title":"GREEN VS. COMMERCIAL TRAILER PRODUCTS AWCC# H306827 April 28, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GREEN_GENEVA_H306827_20260428.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GREEN_GENEVA_H306827_20260428.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H306827 \n \nGENEVA GREEN, Employee CLAIMANT \n \nCOMMERCIAL TRAILER PRODUCTS, Employer RESPONDENT \n  \nSENTRY INSURANCE, Carrier RESPONDENT \n \n OPINION FILED APRIL 28, 2026  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Harrison, Boone \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas; although not \npresent at hearing. \n \nRespondent represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n OPINION \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn October 18, 2023, Evelyn Brooks, claimant’s attorney, filed a Form AR-C requesting \nvarious compensation benefits in which the claimant alleged an injury to her bilateral hands and \nwrists  on  or  about  September  1,  2023.  A  hearing  was  requested  regarding  issues  with  medical \ntreatment.  However, a  hearing  was  never  scheduled,  and  no  further  action  was  taken  in  this \nclaim. \nOn December  8,  2025,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim be dismissed for lack of prosecution. A hearing was scheduled for March 26, 2026. Notice \nof that hearing was sent to the claimant by certified mail, return receipt requested on January 16, \n2026. United States Postal Department records indicate that claimant received and signed for the \nnotice on January 22, 2026. \n\nGreen – H306827 \n2 \n \nMs.  Brooks indicated by email  dated  March  17,  2026, that she would  waive her \nappearance  at  the  hearing  and  further  indicated  that she had  no  objection  to  the  Motion  to \nDismiss “without prejudice.”    \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution.  After my review of \nthe respondent’s Motion to Dismiss, Ms. Brooks’ response  thereto she had  no  objection  to  the \nMotion  to  Dismiss  without  prejudice,  and  the  claimant’s  failure  to  appear  at  the  scheduled \nhearing,  as  well  as  all  other  matters  properly  before  the  Commission,  I  find  that  claimant  has \nfailed to prosecute this claim. Therefore, this claim is dismissed without prejudice.   \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2434,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H306827 GENEVA GREEN, Employee CLAIMANT COMMERCIAL TRAILER PRODUCTS, Employer RESPONDENT SENTRY INSURANCE, Carrier RESPONDENT OPINION FILED APRIL 28, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Harrison, Boone County, Arkansas. Claimant r...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:30:15.887Z"},{"id":"alj-H307928-2026-04-28","awccNumber":"H307928","decisionDate":"2026-04-28","decisionYear":2026,"opinionType":"alj","claimantName":"Patricia Lee","employerName":"Goodwill Industries Of Ark Inc","title":"LEE VS. GOODWILL INDUSTRIES OF ARK INC. AWCC# H307928 April 28, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Lee_Patricia_H307928_20260428.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Lee_Patricia_H307928_20260428.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307928 \n \nPATRICIA LEE, \nEMPLOYEE                                                                                                              CLAIMANT \n \nGOODWILL INDUSTRIES OF ARK INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nATA WORKERS’ COMP. SI TRUST, \nCARRIER                                                                                                             RESPONDENT \n \nRISK MANAGEMENT SOLUTIONS, \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED APRIL 28, 2026 \n \nHearing conducted on Friday, March 31,  2026,  before  the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant is Pro Se, of Little Rock, Arkansas.  \n \nThe Respondents were represented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non January 16, 2026.  A hearing on the motion was conducted on March 31, 2026, in Little Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer’s crew team. The date for Claimant’s \nalleged injury was on November 20, 2023. This incident was reported to the Respondent/Employer \non the   same   date. Admitted   into   evidence   was Respondents’  Exhibit 1,   pleadings,   and \ncorrespondence,  consisting  of 10 pages,  and Commission  Ex. 1, emails, and  U.S.  Mail  return \nreceipts, consisting of 6 pages, as discussed infra. \n\nLEE, AWCC No. H307928 \n \n2 \n \n \nThe record reflects on December 6, 2023, a Form AR-C was filed by Claimant purporting \nthat Claimant sustained injuries to her back, neck, left leg, left arm and chest when she mis stepped \ndue to a cart obstruction in the walkway and falling on her face. On December 11, 2023, a Form \nAR-1 was filed with the Commission noting that Claimant’s injuries occurred when she placed an \nitem at a station, turned around, and tripped over a cart. Also on December 11, 2023, a Form AR-\n2 was filed accepting compensability for the left foot/ankle strain and left forearm abrasion. On \nDecember  13,  2023,  an  amended  Form  AR-2 was filed denying compensability of Claimant’s \ninjuries.     \nThe Respondents filed  a motion to dismiss for lack of prosecution on January 16, 2026. \nThe Claimant was sent, on February 4, 2026, notice of the Motion to Dismiss, via certified and \nregular  U.S.  Mail,  to  his last  known  address.  The  certified motion notice was not claimed  by \nClaimant as  noted on  the March 2,  2026,  return  receipt. This  delivery  service  was  to  the \nCommission  itself. This  notice was  also  sent regular  U.S.  Mail and likewise returned to  the \nCommission. As  a  result,  the  Claimant  did not respond  to  the  Motion,  in  writing,  as  required. \nNevertheless,  in  accordance  with  applicable  Arkansas  law,  the  Claimant  was  mailed  due  and \nproper legal notice of Respondents’ Motion to Dismiss hearing date to her current address of record \nvia the United States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, \nand regular First-Class Mail, on February 27, 2026. The certified notice was not claimed as noted \nby the March 10, 2026, return receipt. Likewise, the hearing notice sent regular First-Class was \nreturned to the Commission. The hearing took place on March 31, 2026. And as mentioned before, \nthe Claimant did not show up to the hearing. \n \n\nLEE, AWCC No. H307928 \n \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the March 31, 2026, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was not claimed by Claimant, per the return postal notice bearing the March 10, 2026, date. \nThe Claimant has a duty to provide the Commission with her most current address. The Claimant  \n \n\nLEE, AWCC No. H307928 \n \n4 \n \nhas failed to do so. But sending notices to Claimant’s last known address of record is reasonable. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \nAR-C on December 6, 2023. Since then, she has failed to request a bona fide hearing. Therefore, \nI  do  find  by  the  preponderance  of  the  evidence  that  Claimant  has  failed  to  prosecute  her claim. \nThus, Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6368,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H307928 PATRICIA LEE, EMPLOYEE CLAIMANT GOODWILL INDUSTRIES OF ARK INC., EMPLOYER RESPONDENT ATA WORKERS’ COMP. SI TRUST, CARRIER RESPONDENT RISK MANAGEMENT SOLUTIONS, TPA RESPONDENT OPINION FILED APRIL 28, 2026 Hearing conducted on Friday, March 31, 2026, be...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["back","neck","ankle","strain"],"fetchedAt":"2026-05-19T22:30:17.952Z"},{"id":"alj-H307345-2026-04-28","awccNumber":"H307345","decisionDate":"2026-04-28","decisionYear":2026,"opinionType":"alj","claimantName":"Josh West","employerName":"Diamond Pet Foods","title":"WEST VS. DIAMOND PET FOODS AWCC# H307345 April 28, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WEST_JOSH_H307645_20260428.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WEST_JOSH_H307645_20260428.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H307345 \n \nJOSH W. WEST, EMPLOYEE CLAIMANT \n \nDIAMOND PET FOODS, EMPLOYER                RESPONDENT \n \nARCH INDEMNITY INSURANCE CO, CARRIER/                             RESPONDENT \nSEDGWICK CLAIMS MANAGEMENT SERVICES, INC., TPA \n \n \nOPINION FILED 28 APRIL 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 26 February 2026 in McGehee, Arkansas. \n \nMr. Daniel A. Webb, Daniel A. Webb, P.A., appeared for the claimant. \n \nMr. Guy Alton Wade, Friday, Eldredge & Clark, LLP, appeared for the respondents. \n \nI. STATEMENT OF THE CASE \n \n A Prehearing Order was filed on 4 June 2025 and admitted to the record as \nCommission’s Exhibit No 1. The parties agreed to the following at the hearing: \nSTIPULATIONS \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n 2. The employee/employer/carrier-TPA relationship existed at all relevant  \n  times, including on 12 November 2023. \n \n 3. The respondents have controverted this claim in its entirety. \n \nISSUES TO BE LITIGATED \n \n Following an amendment at the hearing, the parties agreed to litigate the following \nIssues: \n 1. Whether the claimant sustained a compensable injury by specific incident to  \n  his right index finger.  \n \n 2. Whether the claimant is entitled to medical benefits and expenses   \n  associated with his alleged compensable injury. \n\nJ. WEST- H307645 \n2 \n \n \n 3.  Whether the claimant is entitled to permanent partial disability (PPD)  \n  benefits.\n1\n \n \n 4. Whether the claimant is entitled to benefits under Ark. Code Ann. § 11-9-505. \n \n5. Whether the claimant is entitled to an award of an attorney’s fee under Ark. \nCode Ann. § 11-9-715. \n \n All other issues are reserved. \n \nCONTENTIONS \n \n The parties’ Contentions were set out in their respective Prehearing Questionnaire \nresponses and were amended at the hearing to read: \nClaimant \n \nClaimant contends that he sustained serious injuries to his right finger, \nand Respondents have refused to accept the claim as compensable. \nClaimant contends entitlement to all benefits related to his finger \ninjury, including medical benefits and expenses and PPD. All other \nissues are reserved.  \n \nRespondents \n \nRespondents contend that the claimant did not sustain a compensable \ninjury to his right index finger within the course and scope of his \nemployment. Claimant was intoxicated at the time of the accident. As a \nresult, the claim is not compensable, and the respondents are not \nresponsible for the payment of any medical and/or indemnity benefits.  \n \nII. FINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the claimant and the witnesses, observing their \n \n1\n While the parties anticipated at the time of the prehearing conference providing an \nagreed-upon average weekly wage amount at the hearing, they had not yet made that \ndetermination on the date of the hearing. They agreed that they would revisit the matter as \nmay be necessary in the event benefits were awarded in this Opinion and that the \napplicable average weekly wage determination need not be included as an Issue to be \nlitigated at the hearing. [TR at 23.] \n\nJ. WEST- H307645 \n3 \n \ndemeanor, I make the following findings of fact and conclusions of law under Ark. Code \nAnn. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The Stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant has proven by a preponderance of the evidence that he   \n  sustained a compensable injury by specific incident to his right index finger. \n \n4. The claimant has proven by a preponderance of the evidence that he is \nentitled to medical benefits associated with his compensable injury. He has \nfurther proven by a preponderance of the evidence that all of the treatment \nthat he received for his compensable right index finger injury and that is in \nevidence was reasonable and necessary. \n \n5. The claimant has proven by a preponderance of the evidence that he is  \n  entitled to a 45% (forty-five percent) permanent impairment rating to the  \n  right index finger and PPD benefits consistent with the same. \n \n6. The claimant has failed to prove by a preponderance of the evidence that he  \n  is entitled to benefits under Ark. Code Ann. § 11-9-505. \n \n7. The claimant has proven by a preponderance of the evidence that he is \nentitled to attorney’s fees under Ark. Code Ann. § 11-9-715 on the indemnity \nbenefits awarded in this Opinion. \n \nIII. ADJUDICATION \nThe stipulated facts as outlined above are reasonable and accepted. It is settled that \nthe Commission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \n\nJ. WEST- H307645 \n4 \n \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \n The claimant, Mr. Ricky Snow, and Mr. Cody Gipson testified at the hearing. The \nrecord consists of the hearing transcript, which includes following exhibits: Commission’s \nExhibit No 1 (the 4 June 2025 Prehearing Order and a subsequent rescheduling letter); \nClaimant’s Exhibit No 1 (one index page and 29 pages of medical and billing records); \nClaimant’s Exhibit No 2 (a one-page billing statement dated 6 February 2026); Respondents’ \nExhibit No 1 (one index page and 15 pages of employment and incident records); \nRespondents’ Exhibit No 2 (one index page and eight pages of medical records); \nRespondents’ Exhibit No 3 (one disc with an incident investigation report (on PowerPoint) \nand two short video files showing machinery); and Respondents’ Exhibit No 4 (the 14 \nJanuary 2026 cover letter that accompanied the respondents’ exchange of hearing exhibits). \n Claimant’s Testimony \n The claimant is thirty-seven years old with an associate’s degree in aviation \nmaintenance and applied sciences. The respondent-employer operates a pet food \nmanufacturing facility in Dumas, Arkansas. The claimant had been employed there for \napproximately three years before his accident. He worked in machinery maintenance at the \ntime relevant to this claim. \n On 12 November 2023, the claimant and his coworker Colby Russell were called to \nwork on a malfunctioning “bagger” machine that was overfilling bags with dog food. The \nmachine controlled the amount of dog food that was dropped into the bags via a roller \nsystem that opened and closed over a spout atop of the bags. Debris could get caught \nbetween the rollers and prevent them from completely closing and stopping the downward \nflow of dog food. The claimant and Mr. Russell each had a roller and spout set to clear on \n\nJ. WEST- H307645 \n5 \n \nthe machine. Mr. Russell cleared out his set and then pressed a button that actuated the \nroller system while the claimant still had his hand between two rollers. The end of the \nclaimant’s right index finger was smashed when the rollers closed together.  \n The claimant testified that his direct supervisor was not present at the time but that \nRicky Snow, the plant’s production supervisor, was notified of the accident and injury. The \nclaimant also spoke with Charlotte Coakley, who happened to be standing nearby, \nimmediately after the incident. He recalled saying, “Ms. [Coakley], I think I lost my finger. \nI need some help.” [TR at 34.] According to the claimant, Ms. Coakley looked around for \nsome first aid supplies, including in the women’s restroom while he waited outside the door; \nbut she did not find anything. \n The claimant recalled Mr. Russell driving him the short distance to Delta Memorial \nHospital within 10 minutes or so of the accident. He submitted to an after-accident urine \ndrug screen while in the emergency department. Bill Hale, the respondent-employer’s \nsafety manager, signed off on the sample as part of the sample collection and custody \nprocedure. The test later returned negative for any intoxicants. Consistent with that result, \nthe claimant denied being intoxicated or under the influence of any illicit substance around \nthe time of the accident.  \n As for the emergency treatment provided to the claimant, he stated that the doctor \n“gave me a shot and filed down the bone and put the skin over it and sewed it up.” [TR at \n39.] He testified that after a follow-up visit a few days later, he was authorized to return to \nwork with restrictions. He was, however, terminated upon his return to work.  \nQ:  All right. Any explanation for the termination? \nA:  They told me they thought I was lying about my drug screening. And \nwhen I... that’s it. \nQ:  But once again, you peed in the cup at the hospital that the nurse gave \nyou, correct? \nA:  Yes, sir. \n \n\nJ. WEST- H307645 \n6 \n \n[TR at 44-45.] He testified that he could have performed his work duties had he been \nallowed to return to the job. Explaining some of the ongoing difficulties that he now \nexperiences as a result of the injury, he stated, “especially when it comes to writing \nanything. I used to have decent handwriting, now it’s atrocious. Tightening bolts, if you try \nto reach in and grab one, I just have a problem with it, but I’m getting used to it now.” [TR \nat 45.] \n The claimant said that he was aware that the respondents reviewed security footage \nthat showed him taking a plastic product sample cup out of his maintenance bag on the \nmorning of his accident. He explained, though, that the cups were regularly used by him \nand others at the plant. “I probably had two or three, four more of them in it. They held \nbolts, cotter pins. If you [were] working on something, you know, you want to put your bolts \nin there, or your nuts. And I mean, that’s just what we used...” [TR at 47.] \n On cross-examination, the claimant acknowledged talking with Mr. Snow after the \naccident. He could not recall the specifics of their discussion, but denied that he stated any \nconcerns about after-accident drug testing. He understood that his termination was for a \n“lack of trust.” [TR at 71.] He denied obtaining any further medical treatment after his \nfollow-up and release to return to work with restrictions. After some confusion about what \nwas owed by whom for the medical treatment that he had received, the claimant presented \na medical bill for the emergency medical treatment showing that he was being held \nresponsible on an uncollected balance of approximately $4,000. That billing statement was \nintroduced into the record as Claimant’s Exhibit No 2. \n The claimant recalled discussing his past drug history at his deposition. And he \nacknowledged that he regularly uses marijuana for symptoms related to a PTSD diagnosis. \nHe maintained at his deposition and again at the hearing that he was not concerned about \nbeing able to pass a drug test after the accident. \n\nJ. WEST- H307645 \n7 \n \n Mr. Ricky Snow \n The witness testified that he is a production supervisor for the respondent-employer \nand that he was working on the day of the claimant’s accident. Before the claimant was \ntaken to the hospital, Mr. Snow recalled: \nA:  And he said that he cut his finger – cut his finger off. So I said, “Okay, \nJosh, well, we need to go to the hospital,” and he said, “No,” he can’t go. And I \nsaid, “Well, why can’t you go?” And he said, because he was dirty. \nQ:  Meaning what? \nA:  As far as taking the drug test. \nQ:  Okay. \nA:  That he was dirty. But I said, I mean, you still have to go to the hospital. \nQ:  Okay. So he told you he wasn’t going to be able to pass the mandatory \ndrug test— \nA:  Yes, sir. \nQ:  -- following this event? \nA:  Yes, sir. \n \n[TR at 90-91.] He testified, however, on cross-examination that he did not witness any signs \nof intoxication from the claimant that day. As a supervisor, Mr. Snow had encountered \nemployees before that he observed as possibly being intoxicated while at work and was \nfamiliar with the process for addressing those concerns. He did not take any such action \nrelating to the claimant because that brief discussion aside, he did not have any reason to \nbelieve that the claimant was impaired while at work. Mr. Snow explained that he was \nlater suspended for not immediately disclosing that conversation to the respondent-\nemployer. \n Mr. Cody Gibson \n Mr. Gibson testified that he works as a corporate safety director for the respondent-\nemployer and that he is based out of their offices in Meta, Missouri. He has remote access \nto the Dumas facility’s security camera system from his office and reviewed the available \nvideo footage as part of his after-accident review. He recalled viewing the claimant and \nothers moving around the facility after the accident. He believed that their activity was \n\nJ. WEST- H307645 \n8 \n \nsuspicious and noted, among other things, that Mr. Russell emptied a water bottle into a \ngarbage can and then carried the empty bottle to his truck before taking the claimant to the \nhospital. \n On the nature of the accident, he testified that the proper procedure for cleaning the \nbag filler would have involved using an air hose and wand instead of one’s hands to clear \nout debris. According to his testimony, Mr. Gibson prepared a PowerPoint report [Resp. Ex. \nNo 1 at 1-9] after completing his accident investigation. Several employment actions were \ntaken by the respondent-employer as a result of his investigation. \nQ:  Now, after your investigation and after this PowerPoint was put together, \nthere were several employees that were punished as a result of this, is that \nright? \nA:  That is correct. \nQ:  In fact, [the claimant] was even let go? \nA:  Yes. \nQ:  Along with Charlotte? \nA:  Yes. \nQ:  Along with Colby? \nA:  Yes. \nQ:  And along with Cory? \nA:  Correct. \nQ:  And even Ricky over here got suspended for a few weeks after that, is that \nright? \nA:  Yeah, that’s correct. Yeah. \nQ:  Okay. And the reason they were terminated of the reason for the \nsuspension was because of the circumstances of what the videos revealed that \noccurred immediately following this accident? \nA:  That is correct. Based on the statements we received, and then, \nconfirming with the camera system, there were definitely lies that were told. \nQ:  Okay. And based upon—you were present for Mr. Snow’s testimony that \nthe claimant, actually, told him that he was not gonna be able to pass the \ndrug test. \nA:  That’s my understanding. That’s correct. \nQ:  And that was consistent with the statements that you have? \nA:  Yes, sir. \n \n[TR at 119-120.] He went on to say that he believed the claimant and others attempted to or \nat least intended to provide the claimant with a urine sample that he could submit as his \nown. He further acknowledged, however, that he was not familiar with Quest Diagnostics’ \n\nJ. WEST- H307645 \n9 \n \nprocedures for conducting employee drug tests and that he did not have any reason to \nquestion the competency of the hospital staff who were involved in collecting the claimant’s \nurine sample. He also confirmed that Mr. Russell was not drug tested after the accident \nand that the accident would likely not have occurred but for Mr. Russell mistakenly \nactivating the machine while the claimant was still working on it. \n Mr. Gibson also explained some confusion about the billing for the claimant’s \nmedical treatment. He stated that the claimant had been advised that the charges would be \ntaken care of by the respondents. But when Mr. Gibson inquired with the hospital about \nthe patient’s balance, he was told that nothing was owed. The respondents then took no \nfurther action regarding the payment of the claimant’s treatment. \n Claimant’s Rebuttal Testimony \n The claimant again denied telling Mr. Snow that he would not be able to pass a drug \ntest. He also again denied using any marijuana around the time of his accident. \nQ:  Did you tell this fella [Mr. Snow] that you couldn’t take the test because \nyou were dirty? \nA:  No, sir. \nQ:  Were you smoking pot at that time in your life? \nA:  No, sir. No, sir. \n \n[TR at 130.] \n Medical Records and Documentary Evidence \n The Emergency Room Note authored by Dr. David Chambers includes, in part, the \nfollowing: \nCHIEF COMPLAINT: Cut the tip off his right index finger. \nHISTORY OF PRESENT ILLNESS: The patient was at work at \nDiamond and got his finger caught in a bagging machine and it \nbasically gnawed the end of his index finger off on the right. He has \nsome exposed bone and most of the bone from the distal inner \nphalangeal joint is missing. \nEXTREMITIES: He is missing most of the tip of his index finger on the \nright with estimated 80% of the bone missing on the distal inner \nphalangeal distally on the right index finger. He has a very small area \n\nJ. WEST- H307645 \n10 \n \nof cuticle intact. The remainder of the nail is totally gone. He does not \nhave the remaining finger with him. He said he felt like [the] machine \nate it. \nPROCEDURE NOTE: The finger was prepped with Betadine. A digital \nnerve block with approximately 6 mL of 2% blue lidocaine was placed \nbetween the distal and middle intraphalangeal joints. Thus, digital \nnerve block of the finger. Rongeurs were used to remove bone fragments \nand smooth the bone. The tip was then closed over the exposed bone \nwith four stiches of 2-0 Monofilament nylon. Tetanus shot was given. \nCleaned and dressed. He tolerated the procedure well. I will see him \nback Tuesday in the office but sooner if he has any problems. \n \n An X-ray report included the following findings: \nThere is amputation of the soft tissues of the distal second digit. There \nis a fracture through the mid shaft of the distal phalanx with the distal \nfragment displaced anteriorly and inferiorly. The DIP and PIP joints \nare maintained. There are no radiopaque foreign bodies. \n \n An Emergency Department Nurse’s Note included, in part, the following narrative: \nPt presents to ER with amputation past first joint on right index finger. \nPt’s finger cleaned with normal saline. Pt tolerated well. Pt prepped for \nsuturing... Applied 1 non-adherent bandage to right index finger, \nwrapped with 2 kerlix secured in place with tape and covered with 1” \ntubular gauze. Pt tolerated well. \n \n Per his discharge instructions, the claimant presented for a follow-up visit on 14 \nNovember 2023. He was authorized to return to work the next day with the use of his right \nhand restricted.  \n The drug screening paperwork indicates that the testing was being requested on \nbehalf of the respondent-employer by Ricky Snow and Bill Hale. Mr. Hale signed the form. \nThe specimen collection form indicates that the claimant’s sample was provided at the \nappropriate temperature. And the urine screening Result Report dated 14 November 2023 \nprovided a negative result verification. \n A billing statement dated 21 January 2025 showed total charges from Delta \nMemorial Hospital in the amount of $6,580.10; it appeared to represent a zero-balance \nowed at the time. The full balance appeared to be covered by Blue Cross on 2 January 2025. \n\nJ. WEST- H307645 \n11 \n \n[Cl. Ex. No 1.] \n The claimant appeared at the hearing with a billing statement that he had recently \nreceived from Delta Memorial Hospital. The statement was dated 6 February 2026 and \nrepresented an adjusted balance owed of $3,948.06 against an original balance of $6,580.10, \nwith no insurance payments having been applied to the account. \n[Cl. Ex. No 2.] \n The Employer Discharge Statement indicated that the claimant was terminated on \n20 November 2023 for “tampering with post-accident urine sample” and that his actions \nviolated company policy as a “fraudulent act or breach of trust.” The Termination Form \nlisted Gross Misconduct and indicated that he could not be rehired without consulting a \nplant manager or human resources. \n The respondent-employer’s Injury/Incident form indicated that the claimant \nsustained a “Disabling Injury” to his “(R) 2\nnd\n distal finger.” The Corrective Action section \nprovided that “Both workers are being assigned LOTO Refresher Training.” It also stated, \n“Maintenance Manager has met with crews & discussed one-man tasks and need for proper \ncommunication.” The form was signed by Mr. Hale on 13 November 2023. \n Mr. Hale then signed a disciplinary report dated 20 November 2023 that indicated \nthat the claimant was being terminated for “fraudulent activity after accident on 11/12.” \n[Resp. Ex. No 1.] \nDISCUSSION \n A. THE CLAIMANT HAS PROVEN BY A PREPONDERANCE OF THE   \n  EVIDENCE THAT HE SUSTAINED A COMPENSABLE INJURY TO  \n  HIS RIGHT INDEX FINGER. \n \nTo prove a compensable injury by specific incident, the claimant must establish four \n(4) factors by a preponderance of the evidence: (1) that the injuries arose out of and in the \ncourse of his employment; (2) that the injuries caused internal or external harm to the body \n\nJ. WEST- H307645 \n12 \n \nthat required medical services or resulted in disability or death; (3) that the injuries are \nestablished by medical evidence supported by objective findings, which are those findings \nwhich cannot come under the voluntary control of the patient; and (4) that the injuries were \ncaused by a specific incident identifiable by time and place of occurrence. Mikel v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). The employee has \nthe burden of proving by a preponderance of the evidence that he sustained a compensable \ninjury. Ark. Code Ann. § 11-9-102(4)(E)(i). Preponderance of the evidence means the \nevidence having greater weight or convincing force. Metropolitan Nat'l Bank v. La Sher Oil \nCo., 81 Ark. App. 269, 101 S.W.3d 252 (2003). If a claimant fails to establish by a \npreponderance of the evidence any of the requirements for establishing a compensable \ninjury, compensation must be denied. Mikel, supra. \n\"Objective findings\" are those findings which cannot come under the voluntary \ncontrol of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). The requirement that a \ncompensable injury must be established by medical evidence supported by objective \nfindings applies only to the existence and extent of the injury. Stephens Truck Lines v. \nMillican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). \n The facts in this case clearly support a finding that the claimant met his burden in \nproving all four of the requisite factors listed above. There is no dispute that the claimant \nwas injured while at work and while performing ordinary work duties. The end of his right \nindex finger was amputated in a sudden accident. The treatment records contained \nobjective findings of this and show that medical treatment was required for the injury. The \nrecord plainly supports a finding that the claimant has satisfied the basic elements of a \ncompensable injury to his right index finger by specific incident.  \n\nJ. WEST- H307645 \n13 \n \nBut the respondents argue that they have appropriately denied liability for the \nclaimant’s otherwise compensable claim under Ark. Code Ann. § 11-9-102(4)(B)(iv), which \nprovides: \n(B) “Compensable injury” does not include: \n \n. . .  \n \n(a) Injury where the accident was substantially occasioned by the use of \nalcohol, illegal drugs, or prescription drugs used in contravention of \nphysician's orders. \n \n(b) The presence of alcohol, illegal drugs, or prescription drugs used in \ncontravention of a physician's orders shall create a rebuttable presumption \nthat the injury or accident was substantially occasioned by the use of alcohol, \nillegal drugs, or prescription drugs used in contravention of physician's \norders. \n \n(c) Every employee is deemed by his or her performance of services to have \nimpliedly consented to reasonable and responsible testing by properly trained \nmedical or law enforcement personnel for the presence of any of the \naforementioned substances in the employee's body. \n \n(d) An employee shall not be entitled to compensation unless it is proved by a \npreponderance of the evidence that the alcohol, illegal drugs, or prescription \ndrugs utilized in contravention of the physician's orders did not substantially \noccasion the injury or accident. \n \n If after-accident testing reveals that a claimant had illegal drugs in his system \naround the time of a workplace accident, a presumption attaches that the accident or injury \nin question was “substantially occasioned” by his use of such drugs. He must then rebut \nthis with proving by a preponderance of the evidence that the illegal drugs did not \nsubstantially occasion the injury or accident. Ark. Code Ann. § 11-9-102(4)(B)(iv)(d). The \nphrase \"substantially occasion\" requires that there be a direct causal link between the use \nof the drugs and the injury for the injury to be noncompensable. Waldrip v. Graco Corp., \n101 Ark. App. 101, 270 S.W.3d 891 (2008) (citing ERC Contractor Yard & Sales v. \nRobertson, 335 Ark. 63, 977 S.W.2d 212 (1998)). Ordinarily, this defense is raised when an \nafter-accident drug screening results positive for the presence of some illicit substance in a \n\nJ. WEST- H307645 \n14 \n \nclaimant’s system around the time of testing. That is not the case here, however. The \nmedical evidence in the record clearly shows that the urine sample tested after the \nclaimant’s accident returned a negative result—i.e., there were no illicit drugs or \nmetabolites found in the urine sample that was provided by the claimant.  \n Still, the respondents argue that the adverse inference should be applied in this case \nand cause the presumption to attach. They are unable to rely on any controlling authority \nor persuasive case law in support of this notion, though. They instead encourage that the \ntotality of the circumstances (the claimant’s supposed statement to Mr. Snow and the \nallegedly suspicious behaviors of others that were described in their internal after-accident \nreport) support assigning the adverse inference even in the absence of a positive drug \ntesting result.  \n I disagree. The record evidence shows that the claimant produced a urine sample in \nthe emergency department at the request of the respondent-employer. Appropriate \npersonnel then signed-off on the chain of custody of the sample (which showed an in-range \ntemperature at the time of collection); and the sample returned a negative result for any \nintoxicants. The respondents presented no actual, direct evidence attacking the validity of \nthe sample or showing that the collection procedure was somehow inconsistent with normal \nsample collection protocols. If there had been actual evidence of an adulterated sample or of \nthe claimant refusing the timely collection of a sample, an argument could be better made \nthat he was in violation of his implied consent to testing and thus potentially depriving the \nrespondents of their ability to present evidence, at least by way of testing results, that the \naccident was substantially occasioned by the use of some illicit substance. But just as there \nis no actual evidence of the claimant adulterating the sample he provided in the emergency \ndepartment or refusing or delaying his urine sample collection, there is no evidence of any \npre-accident behavior that might suggest that the accident (which, again, would very likely \n\nJ. WEST- H307645 \n15 \n \nnot have happened but for the mistaken and unsafe actions of another) was substantially \noccasioned by the use of an intoxicant. \n Even assuming, arguendo, that claimant did voice a concern about “something” \nshowing up in his system, a claimant’s worried mind is not a substitute for the actual \n“presence of alcohol, illegal drugs, or prescription drugs” that is contemplated by the \napplicable statute. Timely after-accident testing is the accepted means for determining \nwhether some intoxicant is actually present around the time of an accident. That testing \nhappened in this case in a nearby emergency department shortly after the accident. To \ndisregard the facially valid testing results in the absence of any direct evidence \nundermining the validity of the testing would require engaging in speculation and \nconjecture. And that, I cannot do. Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d \n155 (1979). \n The claimant has thus proven by a preponderance of the evidence that as a result of \nthe workplace accident on 12 November 2023, he suffered a compensable injury by specific \nincident to his right index finger. He is, therefore, entitled to the benefits that ought to be \nassociated with the same. \n B. THE CLAIMANT HAS PROVEN BY A PREPONDERANCE OF   \n  THE EVIDENCE THAT HE IS ENTITLED TO MEDICAL BENEFITS  \n  ASSOCIATED WITH HIS COMPENSABLE INJURY \n \n Employers must promptly provide medical services which are reasonably necessary \nin connection with compensable injuries. Ark. Code Ann. § 11-9-508(a). However, injured \nemployees have the burden of proving by a preponderance of the evidence that medical \ntreatment is reasonably necessary. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004). What constitutes reasonable and necessary medical treatment is a fact \nquestion for the Commission, and the resolution of this issue depends upon the sufficiency \nof the evidence. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). A \n\nJ. WEST- H307645 \n16 \n \nclaimant may be entitled to additional treatment even after her healing period is ended, if \nthat treatment is geared towards management of a compensable injury. Patchell, supra. An \nemployee who has sustained a compensable injury is not required to offer objective medical \nevidence in order to prove that he is entitled to additional treatment. Ark. Health Ctr. v. \nBurnett, 2018 Ark. App. 427, 558 S.W.3d 408.  \n The claimant has met his burden on proving that he suffered a compensable injury \nby way of the partial amputation of his right index finger. He is, therefore, entitled to \nreasonable and necessary medical benefits associated with that compensable injury. The \ntreatments discussed at the hearing were reasonable and necessary in relation to the \nclaimant’s compensable injury. The testimony showed some confusion around the charges \nand billing associated with the claimant’s treatments (received during one hospital \nemergency department visit on 12 November 2023 and one follow-up clinic visit on 14 \nNovember 2023) associated with his compensable injury. The respondents are liable for the \ncosts and associated benefits related to those treatments, including any out-of-pocket \nreimbursement and mileage owed the claimant. \n C. THE CLAIMANT HAS PROVEN BY A PREPONDERANCE OF THE   \n  EVIDENCE THAT HE IS ENTITLED TO PERMANENT PARTIAL   \n  DISABILITY BENEFITS. \n \nAn injured worker must prove by a preponderance of the evidence that he is entitled \nto an award for a permanent physical impairment. Any determination of the existence or \nextent of physical impairment shall be supported by objective and measurable findings. \nArk. Code Ann. § 11-9-704(c)(1). Under Ark. Code Ann. § 11-9-522(g) and 11 CAR § 25-129 \n(previously our Rule 099.34), the Commission has adopted the American Medical \nAssociation (AMA) Guides to the Evaluation of Permanent Impairment (4th ed. 1993) for the \nassessment of anatomical impairment(s).   \n\nJ. WEST- H307645 \n17 \n \nPermanent benefits shall be awarded only upon a determination that the \ncompensable injury was the major cause of the disability or impairment. Ark. Code Ann. § \n11-9-102(4)(F)(ii)(a). “Major cause” means “more than fifty percent (50%) of the cause,” and \na finding of major cause shall be established according to the preponderance of the \nevidence.  Ark. Code Ann. § 11-9-102(14)(A). Preponderance of the evidence means evidence \nhaving greater weight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 \nArk. App. 269, 101 S.W. 3d 252 (2003). \n Based on the preponderance of the evidence presented in this claim, the claimant’s \ncompensable injury to his right index finger was the major cause of his impairment. The \nclaimant did not seek additional treatment after his release with restrictions and \nsubsequent termination from employment. Nor did he separately seek an impairment \nrating from a physician relating to the partial amputation of his finger. The claimant is \nthus seeking a rating assignment from the Commission based on the evidence presented at \nthe hearing. In Jones v. Wal-Mart Stores, Inc., 100 Ark. App. 17, 262 S.W.3d 630 (2007), our \nCourt of Appeals held that the Commission has the authority to assess its own impairment \nrating in the absence of a physician-assigned rating. See also Polk County v. Jones, 74 Ark. \nApp. 159, 47 S.W.3d 904 (2001); Johnson v. General Dynamics, 46 Ark. App. 188, 878 \nS.W.2d 411 (1994). \n The medical records provide objective evidence to support a permanent impairment \nrating. I find those records to be credible. The Commission is authorized to accept or reject \na medical opinion and is authorized to determine its medical soundness and probative \nvalue. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). \nApproximately 80% (eighty percent) of the distal inner phalangeal (DIP) bone was missing \nafter accident. The physician then removed more exposed bone before closing the skin over \nthe remaining tissues. Based on the records and my visualization of the claimant’s healed \n\nJ. WEST- H307645 \n18 \n \ninjury, I am assigning a 45% (forty-five percent) permanent impairment for the amputation \nof the right index finger at the DIP joint, which corresponds to a 9% (nine percent) \nimpairment of the hand, and to an 8% (eight percent) impairment of the upper extremity, \nand to a 5% (five percent) impairment of the whole person. See AMA Guides, Figures 16-3, \n16-5, Table 16-4. Because the claimant has proven by a preponderance of the evidence that \nhe is entitled to a permanent impairment rating in relation to his compensable injury, he is \nentitled to PPD benefits consistent with the same. \n D. THE CLAIMANT HAS FAILED TO PROVE BY A PREPONDERANCE OF  \n  THE EVIDENCE THAT HE IS ENTITLED TO BENEFITS UNDER   \n  ARK. CODE ANN. § 11-9-505. \n \n The claimant contends that he is entitled to benefits under Ark. Code Ann. § 11-9-\n505(a)(1) (“Section 505”) for the respondent-employer's refusal to return him to his prior job. \nIn order to receive benefits pursuant to Section 505, a claimant has the burden of proving \nby a preponderance of the evidence the following: (1) that he sustained a compensable \ninjury; (2) that there is suitable employment within his physical and mental limitations \navailable with the employer; (3) that the employer refused to return him to work; and (4) \nthat the employer's refusal to return him to work was without reasonable cause. Torrey v. \nCity of Fort Smith, 55 Ark. App. 226, 934 S.W. 2d 237 (1996); Nat'l. Cmty. Coll. v. \nCastaneda, 2018 Ark. App. 458, 588 S.W. 3d 911. \n The claimant cannot meet his burden for benefits under Section 505. He argued, \nessentially, that because he did not screen positive for drugs, he should not have otherwise \nbeen terminated for anything related to his accident and injury. In relying on this general \nnotion, he failed to meet his burden on elements (2) and (4), above.  \n First, he did not put on evidence of the availability of suitable work within his \nphysician-ordered “no use of right hand” restrictions after his release. Instead, and \nsomewhat to the contrary, the note releasing him to return to work with restrictions states \n\nJ. WEST- H307645 \n19 \n \nthat he “was adamant that he didn’t need to return to work” and that he was “going to seek \ntreatment by another physician.” [Cl. Ex. No 1 at 21.] The claimant did not present any \nevidence of any light duty or one-hand-only maintenance work that would have been \navailable upon his (apparently reluctant) return to work. \n But even if he had produced some evidence of unsuccessful efforts to return him to \navailable work, element (4) would remain fatal to his claim. The respondents testified at \nlength about their belief that the claimant and others acted dishonestly and in violation of \ncompany policies in the aftermath of the accident. The after-accident investigation findings \nresulted in the termination of several employees. Mr. Gibson explained that the involved \nemployees were believed to be “[l]ying, not being truthful,” and that “there was just reason \nto believe that they were adamantly lying... [when] supervisors on the floor cannot trust \nyou, then, that’s not someone that we, typically, want to employ.” [TR at 120-121.] Given \nthat several serious employment actions were taken after the review of the accident, I \ncannot find that the respondent-employer acted without reasonable cause in their decision \nto terminate the claimant’s employment or in any subsequent refusal on their part to \nreturn him to work. Because the claimant has failed to prove by a preponderance of the \nevidence all of the required elements for benefits under Section 505, his claim for the same \nmust fail. \n E. THE CLAIMANT HAS PROVEN BY A PREPONDERANCE OF THE   \n  EVIDENCE THAT HE IS ENTITLED TO AN ATTORNEY’S FEE. \n \n Because the claimant has proven an entitlement to indemnity benefits, he is also \nentitled to an attorney’s fee consistent with Ark. Code Ann. § 11-9-715. \nIV.  CONCLUSION  \n The claimant has proven that he suffered a compensable injury by specific incident \nto his right index finger, that he is entitled to medical benefits associated with that \n\nJ. WEST- H307645 \n20 \n \ncompensable injury, and that he is entitled to PPD benefits consistent with a 45% (forty-\nfive percent) permanent impairment rating to the right index finger. He has failed, \nhowever, to prove that he is entitled to benefits under Ark. Code Ann. § 11-9-505. All issues \nnot made part of this litigation have been reserved.  \n The respondents are directed to provide benefits accordingly. Any accrued amounts \nshall be paid in a lump sum without discount, and this award shall earn interest at the \nlegal rate until paid. Ark. Code Ann. § 11-9-809. See Couch v. First State Bank of Newport, \n49 Ark. App. 102, 898 S.W.2d 57 (1995). The claimant’s attorney is entitled to a twenty-five \npercent (25%) fee on the benefits awarded herein. One-half (1/2) of the fee is to be paid by \nthe claimant, and one-half (1/2) of the fee is to be paid by the respondents, consistent with \nArk. Code Ann. § 11-9-715. See Death & Permanent Total Disability Trust Fund v. Brewer, \n76 Ark. App. 348, 65 S.W.3d 463 (2012). \nSO ORDERED. \n      ________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":39339,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H307345 JOSH W. WEST, EMPLOYEE CLAIMANT DIAMOND PET FOODS, EMPLOYER RESPONDENT ARCH INDEMNITY INSURANCE CO, CARRIER/ RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., TPA OPINION FILED 28 APRIL 2026 Heard before Arkansas Workers’ Compensation Commission...","outcome":"granted","outcomeKeywords":["granted:7","denied:1"],"injuryKeywords":["back","fracture"],"fetchedAt":"2026-05-19T22:30:20.039Z"},{"id":"alj-H506440-2026-04-27","awccNumber":"H506440","decisionDate":"2026-04-27","decisionYear":2026,"opinionType":"alj","claimantName":"Carolyn Phillips","employerName":"Great River Medical Ctr","title":"PHILLIPS VS. GREAT RIVER MEDICAL CTR. AWCC# H506440 April 27, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Phillips_Carolyn_H506440_20260427.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Phillips_Carolyn_H506440_20260427.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H506440 \n \nCAROLYN L. PHILLIPS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nGREAT RIVER MEDICAL CTR., \nEMPLOYER                                                                                                         RESPONDENT  \n \nBRIDGEFIELD EMPLOYERS INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nSUMMIT CONSULTING, LLC, \nTPA                                                                                                                        RESPONDENT   \n \n \nOPINION FILED APRIL 27, 2026 \n \nHearing conducted on Friday, March 27,  2026,  before  the  Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant was represented by Mr. Mark Alan Peoples, Little Rock, Arkansas.  \n \nThe Respondents  were represented by Mr. Guy  Alton  Wade,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non January 12, 2026.  A hearing on the motion was conducted on March 27, 2026, in Jonesboro, \nArkansas.  Claimant failed to appear at the hearing. Claimant’s counsel waived his appearance for \nthis hearing. \nThe  Claimant  worked  for  the  Respondent/Employer  as a PBX  Operator.  The  date  for \nClaimant’s  alleged  injury  was  on June 4,   2024. This   incident   was   reported   to   the \nRespondent/Employer on the  same  day. Admitted  into  evidence  was Respondents’ Exhibit 1, \n\nPHILLIPS, AWCC No. H506440 \n \n2 \n \npleadings, consisting of 12 pages, and Commission Ex. 1, U.S. Mail return receipts, consisting of \n7 pages, as discussed infra. \nThe record reflects on October 7, 2025, a Form AR-C was filed by Claimant’s attorney, \nMark Alan Peoples, purporting that Claimant sustained an injury to her back, left knee, and left \nfoot. On October 16, 2025, a Form AR-1 was filed purporting that while Claimant was walking to \nthe time clock he tripped and fell on a crack in the middle of the floor. In a letter dated October \n16, 2025, Respondents accepted the claim as compensable.  \nOn  October  28,  2025,  a  joint  petition  was  filed  with  the  Commission. A  joint  petition \nhearing was set for December 12, 2025. On November 4, 2025, Claimant changed her mind and \nno  longer  wanted  to  settle  the  claim.  As  a  result,  the  hearing  was  cancelled,  and  the  file  was \nreturned to general files.  \nRespondents filed a motion to dismiss on January 12, 2026, for failure to prosecute. The \nClaimant was sent, on January 16, 2026, notice of the Motion to Dismiss, via certified and regular \nU.S. Mail, to her last known address. The certified motion notice was not claimed by Claimant as \nnoted by the return of the certified return receipt dated January 31, 2026. This notice was also sent \nregular  U.S.  Mail and did not return  to  the  Commission. The  Claimant  did not respond  to  the \nMotion, in writing, as required. However, Claimant’s counsel, in an email dated January 16, 2026, \nstated that he was not able to reach the Claimant but does not oppose a motion to dismiss without \nprejudice. Thus, in accordance with applicable Arkansas law, the Claimant was mailed due and \nproper legal notice of Respondents’ Motion to Dismiss hearing date at her current address of record \nvia the United States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, \nand regular First-Class Mail, on February 24, 2026. The certified notice was claimed as noted by \nthe return receipt dated March 2, 2026. The hearing notice sent regular First-Class was not returned \n\nPHILLIPS, AWCC No. H506440 \n \n3 \n \nto the Commission. The hearing was scheduled for March 27, 2026. And as mentioned before, the \nClaimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the March 27, 2026, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \n\nPHILLIPS, AWCC No. H506440 \n \n4 \n \nnotice  was claimed by  Claimant on  March  2,  2026. Thus,  I  find  by  the  preponderance  of  the \nevidence that the Claimant did receive reasonable notice of this motion to dismiss hearing.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to  a want of prosecution. The  Claimant filed a Form \nAR-C on October 7, 2025.  Since then, the Claimant has not requested a bona fide full hearing, \nthus failing to prosecute her claim. Therefore, I do find by the preponderance of the evidence that \nClaimant  has  failed  to  prosecute  her claim. Thus, Respondents’ Motion to Dismiss should be \ngranted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6417,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H506440 CAROLYN L. PHILLIPS, EMPLOYEE CLAIMANT GREAT RIVER MEDICAL CTR., EMPLOYER RESPONDENT BRIDGEFIELD EMPLOYERS INS. CO., CARRIER RESPONDENT SUMMIT CONSULTING, LLC, TPA RESPONDENT OPINION FILED APRIL 27, 2026 Hearing conducted on Friday, March 27, 2026, be...","outcome":"dismissed","outcomeKeywords":["dismissed:11","granted:3"],"injuryKeywords":["back","knee"],"fetchedAt":"2026-05-19T22:30:11.749Z"},{"id":"alj-H006753-2026-04-24","awccNumber":"H006753","decisionDate":"2026-04-24","decisionYear":2026,"opinionType":"alj","claimantName":"Jacob Shotzman","employerName":"Wilbert Funeral Services Inc","title":"SHOTMAN VS. WILBERT FUNERAL SERVICES INC. AWCC# H006753 April 24, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SHOTZMAN_JACOB_H006753_20260424.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHOTZMAN_JACOB_H006753_20260424.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n CLAIM NO. H006753 \n \nJACOB M. SHOTMAN, EMPLOYEE CLAIMANT \n \nWILBERT FUNERAL SERVICES INC., EMPLOYER RESPONDENT \n \nGALLAGHER BASSETT SERVICES INC., CARRIER/TPA RESPONDENT \n \n \n OPINION FILED APRIL 24, 2026 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney,  Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney,  Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  March 2, 2026, the above captioned claim was submitted in lieu of a hearing for decision \npursuant to the parties’ mutual agreement based on the stipulated record.    A pre-hearing conference \nwas conducted on January 8, 2026, and a pre-hearing order was filed on that same date.  A copy of \nthe pre-hearing order has been marked as Commission’s Exhibit #1 and made a part of the record \nwithout objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2.   All prior Opinions are res judicata. \n3.  The employee/employer/carrier relationship existed on August 29, 2020. \n4.  The  compensation  rates  are  $480.00  for  temporary  total  disability  and  $360.00  for \npermanent partial disability.  \n\nShotzman-H006753 \n2 \n \n \nThe  parties  also  stipulated  that the  claimant  has  not  previously  undergone  an  independent \nmedical  evaluation  for  pain  management,  nor  has  he  previously  undergone  an  independent \npsychological evaluation.  \nThe issues in the prehearing order were:  \n1.  Respondents’ request for an independent medical examination by Dr. Carlos Roman. \n2.  Claimant’s entitlement to an independent psychological examination.   \nAll other issues are reserved by the parties. \nThe  claimant  contended that  “The  claimant  is  entitled  to  an  independent  physiological \nexamination.”  \nThe  respondents  contended that “All  appropriate  benefits  are  being  paid  with  regard  to \nclaimant’s lower back injury sustained on August 29, 2020.  Claimant has undergone multiple surgeries \nwith Dr. James Blankenship, none of which appear to have been successful.  Dr. Blankenship has not \nrecommended  a  spinal  cord  stimulator,  and  claimant  did  not  pass  the  necessary  neuropsychic \nevaluation to obtain the same.  Respondents are requesting an IME with Dr. Carlos Roman to address \nthe multiple medications claimant is currently being prescribed to determine whether those medicines \nare reasonable and necessary.  This IME is being requested pursuant to ACA §11-9-511 and §11-9-\n811.    Respondents  contend  that  the  IME  is  reasonable  and  necessary  and  request  an  Order  for \nclaimant to attend the same with Dr. Roman.  Claimant has requested an independent psychological \nevaluation.  Claimant has already undergone one with Dr. Richard Back who determined that he is \nnot a candidate for a spinal cord stimulator.  There are no conflicting opinions on this issue, and an \nIPE is not reasonable and necessary.”   \n           From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having reviewed the previous orders in this matter, the following \n\nShotzman-H006753 \n3 \n \n \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on January \n8, 2026, and contained in a pre-hearing order filed on that same date are hereby accepted as fact, as \nare the stipulations announced subsequent to the pre-hearing order.  \n 2.    Claimant’s request for an independent psychological evaluation is granted. \n 3.    Respondents’ request for an independent medical evaluation is granted.  \n \n FACTUAL BACKGROUND \n This matter has a long history, including two previous hearings.  The relevant finding from \nmy  July  1,  2021,  opinion  to  this  current  matter  was  that  claimant  met  his  burden  of  proof  by  a \npreponderance  of  evidence  that  he was entitled  to  additional  medical  treatment  from  Dr.  James \nBlankenship.  On  July  11,  2024,  I  found  claimant  had again met  his  burden  of  proof  by  a \npreponderance  of  evidence  that  he was entitled  to  additional  medical  treatment  from  Dr.  James \nBlankenship for his back injury.   \n \nREVIEW OF THE EXHIBITS \n \n In addition to the joint medical exhibit of 78 pages, Commission exhibit #1 is the prehearing \norder;  the email exchange between the parties and the court as the decision was made to submit this \non a stipulated record is Commission exhibit #2.  \n \nADJUDICATION \n  \nThe question  to  be  decided  is  whether  the  parties'  cross-requests  for  independent  medical \nexaminations are reasonable and necessary in this matter. \n\nShotzman-H006753 \n4 \n \n \nArkansas Code Annotated section 11-9-511(a) provides, in relevant part: \nAn injured employee claiming to be entitled to compensation shall submit to \nsuch  physical  examination  and  treatment  by  another  qualified  physician, \ndesignated or approved by the Workers' Compensation Commission, as the \nCommission may require from time to time if reasonable and necessary. The \nthreshold  question  is whether  the  examination  is  reasonable  and  necessary. \n(Emphasis added.) \n \n11 C.A.R. § 25-125 (formerly Rule 099.30(1)) of the Arkansas  \n \nWorkers’ Compensation Commission provides: \n \nAn independent medical examination shall include a study of previous history \nand  Medical  Care  information,  diagnostic  studies,  diagnostic  x-rays,  and \nlaboratory studies, as well as an examination and evaluation. This service may \nbe necessary in order to make a judgment regarding the current status of the \ninjured or ill worker, or to determine the need for further health care. (Emphasis \nadded.) \n \nRegarding claimant's request for an independent psychological examination, I note that Dr. \nRichard Back performed a pre-surgical psychology evaluation on April 16, 2025 (Exhibits 65-67). Dr. \nBack did not clear claimant for a spinal cord stimulator. However, significant clinical developments \noccurred between that evaluation and Dr. Blankenship's August 7, 2025, chart note questioning Dr. \nBack's  findings  (Exhibits  73-78),  including  an  August  4,  2025, lumbar  MRI  documenting  spinal \nstenosis and post-laminectomy syndrome (Exhibit 72) plus new 'right quad and hip flexor weakness... \n4/5  strength'  attributed  to  implant  extrusion. Dr.  Back's  evaluation  was  limited  to  stimulator \ncandidacy. After reviewing all records, I find a second psychological IME is reasonable and necessary \nto  determine  appropriate  care  at  this  time.  This  matter  will  be  referred  to  the  Medical  Cost \nContainment Division. \nTurning  now  to  respondents'  request,  they  seek  an  IME  by  Dr.  Carlos  Roman  to  evaluate \nclaimant's  physical  condition  and  medication  regimen  following  multiple  failed  surgeries.  The  joint \nexhibits amply  demonstrate  ongoing issues,  including 6-10/10  lumbar  pain with  positive  right  SLR \n\nShotzman-H006753 \n5 \n \n \n(Exhibit 1); Dr. Blankenship's documentation of hip flexor/quad weakness (Exhibits 59-64, 73-78); \nthe August 4, 2025, MRI showing spinal stenosis/post-laminectomy syndrome (Exhibit 72); and failed \nconservative measures including PT and ESI. \nGiven this claim's protracted history since the 2020 injury, including three lumbar fusions (L5-\nS1 May 2022; L4-L5 April 2023, September 2024 with implant extrusion), I find the request reasonable \nand necessary as it could benefit the Commission in determining what care is appropriate. However, \nI decline to appoint Dr. Roman to serve in this capacity; this matter will also be referred to the Medical \nCost Containment Division for the selection of an independent medical evaluator.  \nORDER \n \nClaimant's request for an independent psychological examination is granted. This matter will be \nreferred  to  the  Medical  Cost  Containment  Division  of  the  Commission  to  select  an  appropriate \nphysician. \nRespondents’ request for an Independent Medical Examination is granted.  This matter will be \nreferred to the Medical Cost Containment Division to select an appropriate physician.  \nThe cost of these examinations is to be borne by respondents, including mileage for claimant's \ntravel. The parties should provide the physicians selected by the Medical Cost Containment Division \nthe  medical  records,  including  any  diagnostic  testing  previously  performed,  in  order  for  those \nphysicians to have a complete record of what has transpired to this point. If either physician selected \nbelieves additional diagnostic procedures are necessary to properly evaluate the claimant, such should \nbe promptly authorized by respondents. \nThe parties shall cooperate promptly in scheduling these examinations. \n \n \n\nShotzman-H006753 \n6 \n \n \nIT IS SO ORDERED. \n                                                                                            \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":9275,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H006753 JACOB M. SHOTMAN, EMPLOYEE CLAIMANT WILBERT FUNERAL SERVICES INC., EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES INC., CARRIER/TPA RESPONDENT OPINION FILED APRIL 24, 2026 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebasti...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["back","lumbar","hip"],"fetchedAt":"2026-05-19T22:30:09.679Z"},{"id":"full_commission-H301603-2026-04-23","awccNumber":"H301603","decisionDate":"2026-04-23","decisionYear":2026,"opinionType":"full_commission","claimantName":"Sherri Bass","employerName":"National Opinion Research Center","title":"BASS VS. NATIONAL OPINION RESEARCH CENTER AWCC# H301603 April 23, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Bass_Sherri_H301603_20260423.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Bass_Sherri_H301603_20260423.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \nCLAIM NO. H301603 \n \nSHERRI BASS, EMPLOYEE  CLAIMANT \n  \nNATIONAL OPINION RESEARCH CENTER, \nEMPLOYER                                                                           RESPONDENT \n \nTHE HARTFORD, CARRIER                                                 RESPONDENT \n \nOPINION FILED APRIL 23, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents represented by the HONORABLE RANDY P. MURPHY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed January 12, 2026. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-\nhearing conference conducted on March 31, 2025, and \ncontained in a Pre-hearing Order filed March 31, 2025, \nare hereby accepted as fact.  \n \n2. The claimant has failed to prove by a preponderance of \nthe evidence that she is entitled additional medical \ntreatment for her compensable right trigger finger, left \nelbow, and left wrist injuries and to additional medical \ntreatment for her compensable right elbow injury in the \nform of surgery.  \n\nBass-H301603     2 \n   \n \n \n3. The claimant has failed to prove by a preponderance of \nthe evidence that she is entitled temporary total \ndisability benefits from January 29, 2024, to a date yet \nto be determined.  \n \n4. The respondents’ issue raised of independent \nintervening cause is moot.  \n \n5. The claimant’s compensation rates issue is moot. \n \n We have carefully conducted a de novo review of the entire record \nherein, and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the January 12, 2026 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2647,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H301603 SHERRI BASS, EMPLOYEE CLAIMANT NATIONAL OPINION RESEARCH CENTER, EMPLOYER RESPONDENT THE HARTFORD, CARRIER RESPONDENT OPINION FILED APRIL 23, 2026 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, ...","outcome":"affirmed","outcomeKeywords":["affirmed:3","denied:2"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T22:29:43.553Z"},{"id":"full_commission-H407169-2026-04-23","awccNumber":"H407169","decisionDate":"2026-04-23","decisionYear":2026,"opinionType":"full_commission","claimantName":"Michael Weaver","employerName":"City Of Mountain Home","title":"WEAVER VS. CITY OF MOUNTAIN HOME AWCC# H407169 April 23, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Weaver_Michael_H407169_20260423.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Weaver_Michael_H407169_20260423.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H407169 \n \nMICHAEL B. WEAVER, EMPLOYEE    CLAIMANT \n \nCITY OF MOUNTAIN HOME, EMPLOYER                           RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE \nWORKERS’ COMPENSATION PROGRAM,  \nINSURANCE CARRIER/TPA                                                 RESPONDENT \n \n \nOPINION FILED April 23, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE MARY K. EDWARDS, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed November 20, 2025. In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission \nhas jurisdiction over this claim.  \n \n2. That an employer/employee/carrier relationship existed \non April 1, 2023, and at all relevant times. \n \n\nWeaver-H407169        2  \n \n \n3. That the Claimant earned an average weekly wage of \n$792.72, sufficient for a TTD rate of $528.00 and a \nPPD rate of $396.00.  \n \n4. That Claimant has failed to prove by a preponderance \nof the evidence that he sustained a work-related injury \non the specific date of April 1, 2023. Additionally, there \nis no alternative but to find that the Claimant has also \nfailed to prove by a preponderance of the credible \nevidence that he established a work-related gradual \nonset injury to his lower back, his right hip, and groin, \nwith medical evidence supported by objective findings \nsufficient to satisfy the requirements of the Arkansas \nWorkers’ Compensation Act. \n \n5. That, consequently, all other issues are moot.  \n \n6. If not already paid, the respondents are ordered to pay \nfor the cost of the transcript forthwith \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the November 20, 2025 decision of \nthe Administrative Law Judge, including all findings and conclusions \ntherein, as the decision of the Full Commission on appeal.  \n  \n\nWeaver-H407169        2  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2986,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H407169 MICHAEL B. WEAVER, EMPLOYEE CLAIMANT CITY OF MOUNTAIN HOME, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED April 23, 2026 Upon review before ...","outcome":"affirmed","outcomeKeywords":["affirmed:3","denied:2"],"injuryKeywords":["back","hip"],"fetchedAt":"2026-05-19T22:29:43.561Z"},{"id":"alj-H106627-2026-04-22","awccNumber":"H106627","decisionDate":"2026-04-22","decisionYear":2026,"opinionType":"alj","claimantName":"Eduvijes Sanchez","employerName":"Sc Realty Svcs., Inc","title":"SANCHEZ VS. SC REALTY SVCS., INC. AWCC# H106627 April 22, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Sanchez_Eduvijes_H106627_20260422.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Sanchez_Eduvijes_H106627_20260422.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H106627 \n \n \nEDUVIJES JUARDO SANCHEZ, EMPLOYEE CLAIMANT \n \nSC REALTY SVCS., INC., \n EMPLOYER RESPONDENT \n \nTRAVELERS CASUALTY & SURETY CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED APRIL 22, 2026 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on March 20, 2026, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant\n1\n represented by Mr. Scott Hunter, Jr., Attorney at Law, Jonesboro, Arkansas. \n \nRespondents represented  by  Mr. Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On March  20,  2026,  the  above-captioned  claim  was  heard  in Jonesboro, \nArkansas.  A prehearing conference took place on November 10, 2025.  The Prehearing \nOrder  entered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection \nas  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissue, and respective contentions were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations set  forth  in  Commission \nExhibit 1.  They are the following, which I accept: \n \n \n1\nClaimant is a Spanish-speaking individual.  The proceedings were interpreted to \nher by Ms. Juanita Acosta.  Prior to the commencement of the hearing, the interpreter’s \noath contained in Ark. Code Ann. § 25-15-101(e) was administered to Ms. Acosta. \n\nSANCHEZ – H106627 \n \n2 \n \n1. The  Arkansas Workers’  Compensation  Commission  (the  “Commission”) \nhas jurisdiction over this claim. \n2. The  employee/employer/carrier  relationship existed  among  the  parties  on \nAugust  3,  2021,  when  Claimant  sustained  a  compensable  injury  to  her \nright knee. \n3. Respondents  have  accepted  the  above  injury  as  compensable  and  paid \nmedical  and  indemnity  benefits  pursuant  thereto,  including  permanent \npartial  disability  benefits  in  accordance  with  a  rating  of  seventy-five \npercent (75%) to the lower extremity that was assigned to Claimant by Dr. \nBarry Baskin. \nIssue \n At the hearing, the parties discussed the issue set forth in Commission Exhibit 1.  \nThe following was litigated: \n1. Whether Claimant is entitled to additional medical treatment. \nAll other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n 1. Claimant  contends  that  she  has  received  some  medical  treatment,  most \nrecently being seen by Dr. Barry Baskin pursuant to her one-time change \nof  physician.    He  gave  her  an  impairment  rating  of  seventy-five  percent \n(75%)  to  the  lower  extremity  and  recommended  a  functional  capacity \n\nSANCHEZ – H106627 \n \n3 \n \nevaluation.  No continued medical treatment, nor payment of benefits, has \nbeen done since that time. \n Respondents: \n1. Respondents  contend  that  they  accepted  the  claim  as  compensable  and \nare paying the applicable medical and indemnity benefits.  This claim has \nnot been controverted. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  Claimant  and  to  observe  her demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that she  is \nentitled  to additional  treatment of  her stipulated compensable right  knee \ninjury by her   authorized   treating   physician, Dr. Barry   Baskin,   as \nrecommended and outlined in his November 29, 2023 report in evidence. \n\nSANCHEZ – H106627 \n \n4 \n \nADJUDICATION \nSummary of Evidence \n Claimant was the sole hearing witness. \n In  addition  to  the Prehearing Order  discussed  above,  the  exhibit  admitted  into \nevidence in this case was Joint Exhibit 1, a compilation of Claimant’s medical records, \nconsisting of two index pages and 127 numbered pages thereafter. \nAdjudication \n Introduction.   As  the  parties  have  stipulated—and  I  have  accepted—Claimant \nsustained a compensable  injury to  her right  knee on August  3,  2021.   Her  treatment \ntherefor has consisted of, inter alia, a total knee arthroplasty.  In this proceeding, she is \nseeking additional treatment of her knee.  Respondents, on the other hand, have denied \nthat she is entitled to additional treatment of any sort. \n Evidence.    In her testimony,  Claimant described  how  her compensable injury \noccurred.   She  performed  janitorial  services  for  Respondent  employer  at various \nschools.  On August 2, 2021, she was cleaning at the school in Brookland, operating a \nfloor  buffer, when  she became  entangled  in  the  cord  and fell  and  hurt  her  right  ankle\n2\n \nand knee. \n Claimant was originally taken to NEA Baptist Hospital in Jonesboro.  There, she \nwas  given  pain  medication  and  an  injection.   Eventually, in  January  of  the  following \nyear, Claimant underwent  surgery.    This  was  a  total  knee  replacement by  Dr.  Ron \nSchechter.    Thereafter,  she  had  physical  therapy.   Asked  to  describe  what  she  was \n\nSANCHEZ – H106627 \n \n5 \n \nfeeling, Claimant responded:  “Daily pain.  Constant pain.”  Schechter sent her for pain \nmanagement.  Dr. Ma, who is with the NEA Pain Management Clinic, addressed this by \ngiving  her  three  injections  into  the  right  knee.  Claimant took issue with Schechter’s \ntreatment of her, stating that he acted like she was malingering when she was unable to \nlift her leg.  The pain management clinic gave her a full-duty release on April 11, 2023. \n She  next went  to Dr.  Adam  Smith.   He  saw  her  on  one  occasion—July  27, \n2023—and released her to return to work with no restrictions. \n Claimant  obtained  a  change  of  physician  to  Dr.  Barry  Baskin.   Their  sole \nappointment took place on November 29, 2023.  He assigned her an impairment rating \nof  seventy-five  percent  (75%)  to  the  lower  extremity.    The  following  exchange  took \nplace: \nQ. With regard to your right knee, how are you doing? \n \nA. It still hurts and it hurts.  I can’t work.  At home, I just spend my time \non the bed.  Or I’ll stand up a little, but then rest again. \n \nShe walks  with  a  cane, and  uses a  walker at home.   She added:  “I can’t move it [the \nright knee] very well.  [My] foot just kind of slips away.  There has been two times where \nI have almost fallen, which is why I use the cane and the roller [walker] at home.”  \nClaimant experiences  weakness  and  numbness  in  her  knee.    She is  unable  to  afford \nany  medical  treatment  out  of  her  own  pocket;  and  she  does  not  have  any  health \ninsurance.  The only medication that she takes for her pain is over-the-counter. \n \n \n2\nAs discussed above, only the right knee injury is before me. \n\nSANCHEZ – H106627 \n \n6 \n \n Despite the difficulties with her leg, Claimant acknowledged that she still drives, \nand that she still does the home exercises that she learned while in physical therapy. \n Under questioning from the Commission, the following exchange took place: \nQ. Is there some kind of treatment that you want me to award you? \n \nA. I  would  like  to  get  a  treatment  so  that  I  can  see  if  I  can  walk  well \nagain.    Because  I  want  to  return  to  work.    I  want  to  keep  working, \nbut it seems—feels impossible now. \n \nQ. Who  are  you  wanting  to  have  give  you  this  treatment?    What \ndoctor? \n \nA. Well, a good one. \n \nQ. Well, is that any of the doctors that you have seen so far? \n \nA. Well,  I  really  like  the  attention  I  received  from  the  last—from  Dr. \nBaskin, the last doctor I saw. \n \nQ. Okay.    Well, let’s swing back to him, then.  Are you asking me to \norder  that  you  be  allowed  to  go  back  and  see  Dr.  Baskin  again  at \nthe expense of Mr. Wade’s clients? \n \nA. Yes. \n \n The  medical  records  in  evidence  reflect  that on  August  2,  2021,\n3\n Claimant \npresented  to  the  emergency  department  of  NEA  Baptist  with  right  knee  pain  after  she \ntripped over a cord and fell in a gymnasium.  X-rays and a CT scan of that knee showed \nher  to  have  an  acute  depressed  fracture  of  the  lateral  tibial  plateau,  along  with  a \nmoderate to large effusion in the joint.  When she went to NEA Baptist Clinic on August \n12,  2021,  Claimant  presented  in  a  wheelchair  and  wearing  a  knee  immobilizer.   Dr. \n \n \n3\nAs noted above, the parties have stipulated that the date of injury was August 3, \n2021. \n\nSANCHEZ – H106627 \n \n7 \n \nSchechter explained to her “that she has a serious injury [that] is going to be a very long \nrecovery.”  The doctor described the fracture as being comminuted.  Because of the \nhigh risk of having post-traumatic arthritis and valgus instability, due to the nature of her \ninjury, along with her age and osteoporosis, Schechter stated that he “would like to treat \nher nonoperatively for now with the idea that [they] might consider a primary total knee \nreplacement once the bone heals in some, if she’s not doing well.”  He ordered her to \nbe non-weightbearing for eight weeks, with reassessment in three months. \n When  Claimant  returned  to  the  clinic  on  September  9,  2021,  she  reported  that \nshe was feeling better, with not much pain.  Schechter stated that she was doing well, \nand  continued  with  the  plan  outlined  earlier.   X-rays  showed  some  consolidation  and \nhealing  of  the  fracture.  On  September  28,  2021,  Claimant  came  to  the  clinic  in  her \nbrace  and  walking  with  aid  of  a  cane.    She  related  that she was “doing well with very \nlittle  pain  .  .  .  [and  was]  anxious  to  go  back  to  work  and  was  hoping  that  [he]  would \nrelease her to work today.”  Dr. Schechter wrote: \nAll things considered, the patient is doing very well.  Her fracture seems to \nbe  stable  and  healing.    Despite  the  significant  defect  in  her  lateral  tibial \nplateau  she  seems  to  be  tolerating  things  well  with  minimal  pain  and  no \ngross stability right nail [sic].  I warned her that if she gets more active she \nmay become more symptomatic with pain or instability and if she does we \nmay   have   to   consider   total   knee   replacement.    We   are   going   to \ndiscontinue the knee immobilizer and let her use a neoprene knee sleeve \nfor comfort as needed.  She can wean out of the sling as tolerated.  She \nwas  very  anxious  to  go  back  to  work  and  felt  like  she  could  do  so.   I \nexplained  to  her  that  I  just  do  not  want  her  to  fall  but  otherwise  she  can \nprogress  without  restrictions.   She  like  she  could  do  and  wanted  to  go \nback to work so I have her a note to be released back to work. \n \n Dr. Schechter wrote on October 28, 2021: \n\nSANCHEZ – H106627 \n \n8 \n \nThe patient is here for follow-up today about 3 months status post her right \ntibial  plateau  fracture.    She  reports  she  is  doing  much  better.    She  has \ntransition[ed]  to  a  hinged  neoprene  knee  sleeve.    She  is  walking  much \nmore  comfortably.    She  just  has  very  mild  pain  per  her  report.    She  is \ndoing good enough she wants to go back to work. \n \nOverall,  she  is  doing  well.    Her  fracture  [is]  stable  and  healing  in  good \nposition and she is not showing any signs of valgus collapse at this time.  \nWe  are  going  to  continue  conservative  treatment  for  now  and  do  so  as \nlong as she is comfortable and not unstable.  She wants to [try] to go back \nto work full duty.  She is a little bit worried about being up on her feet a full \n8  hours  a  day  but  wants  to  try.    We  are  going  to  release  her  to  full  duty \nwith  no  restrictions  and  plan  on  seeing  her  back  in  3  months  and whe[n] \nshe  calls  with  problems.    She understands that  if  she  is  struggling  with  a \nfull work day, she can call and we may change her to something such [a]s \nonly 4 hours a day on her feet. \n \nIn a note accompanying this record, Dr. Schechter stated: \nTo Whom it May Concern: \n \nIt  is my  medical opinion  that  Eduviges  Jurado  Sanchez may  return  to  full \nduty immediately with no restrictions. \n \nIf you have any questions or concerns, please do not hesitate to call. \n \nSincerely, \n \nRon Dean Schechter \n \n The doctor’s September 28, 2021, warning to Claimant proved to be prescient.  \nWhen she went back to him on November 8, 2021, she told him that she had not done \nwell since going back to work at full duty.  She reported experiencing “sharp, pulsating \npains in her lateral knee.”  After examining her, Schechter opined that she needed more \ntime  to  recover.    He  took  her  back  off  work  for  two  more  weeks,  and  released  her \nthereafter to return to work for four hours a day for the next two weeks. \n\nSANCHEZ – H106627 \n \n9 \n \n During   her   December   7,   2021,   appointment   with   Dr.   Schechter,   Claimant \npresented with  constant severe  pain,  using  a  cane,  and  walking  with  an  antalgic  gait.  \nSchechter  stated  that  Claimant  “does  not  seem  to  be  recovering  appropriately  and \ncontinues  to  have  severe  pain  which  is  limiting  her  work  and  ADLs  [activities  of  daily \nliving].”    After  discussion,  it  was  decided  that  she  should  undergo  a  total  knee \nreplacement.  This was the same recommendation reached after her January 13, 2022, \nappointment with him. \n The  knee  replacement  operation  took  place  on  January  19,  2022.   Her  pre  and \npost-operative  diagnoses  were  “[r]ight  knee  posttraumatic  arthritis  with  prior  tibial \nplateau fracture.”  Claimant went back to Schechter on February 15, 2022, and informed \nhim that she was “feeling much better than before surgery and really not having much \npain.”  He wrote that “[o]verall, she seems to be doing okay.”  Claimant  was  sent  for \nphysical therapy.  Her therapy evaluation showed that she had “excellent” tolerance and \nwas “motivated though having pain with movement in her knee and struggling to weight \nbear through the leg.” \n On  March 16,  2022,  Claimant  returned  to  Dr.  Schechter.    She  reported  that  her \nknee  is  80  percent better.    However,  this  went  down  to  70 percent  when  she  saw  him \nagain on April 28, 2022.  She related to the doctor during this visit that she was having \nnumbness and tingling around her anterolateral knee extending down her anterolateral \nleg/foot.   The doctor wrote that “[a]ll things considered, I think she is doing fine.”  He \nexplained  that  she  would  need  a  minimum  of  six  months  to  recover  from  the  surgery, \nbut  added  that  it  could  “realistically  .  .  .  take  2-3  years  to  really  reach  maximal \n\nSANCHEZ – H106627 \n \n10 \n \nimprovement.”  Schechter felt that her neuropraxia would improve over time.  Claimant \nthereafter returned to physical therapy. \n During  her  June  23,  2022,  visit  with  Dr.  Schechter,  Claimant  informed  him  that \nher pain was not getting any better, and that she is not doing well and is not ready to go \nback   to   work.    She  presented  with  “a  noticeably  antalgic  gait,”  and  lacking \napproximately five percent of full 120-degree flexion.  Because of Claimant’s symptoms, \nthe decision was made to request an ultrasound to rule out deep vein thrombosis, and \nto  refer  her  to  pain  management  to  address  the  possibility  of  complex  regional  pain \nsyndrome.  The  July  8,  2022,  ultrasound  of  Claimant’s  right  lower  extremity  was \nnegative for deep vein thrombosis. \n On  December  6,  2022,  Claimant  saw  Dr.  Zhangliang  Ma  with  the  NEA  Baptist \nPain Management Clinic.  Dr. Ma scheduled Claimant for a genicular nerve block, and \nconsidered a radiofrequency ablation and a spinal cord stimulator.  Tramadol and Lyrica \nwere prescribed.   Claimant  was  assigned  the  diagnosis  of  complex  regional  pain \nsyndrome  of  the  right  lower  extremity;  but  the  medical  records  in  evidence  do  not \ndocument  how  Ma  arrived  at  this.   During  a  February  15,  2023,  follow-up  visit  to  the \npain  management  clinic,  Claimant  reported  a  50  percent  improvement  in  her  pain  for \none week after the nerve block; and she rated her pain as 0/10 with Tramadol and 3/10 \nwithout it.  She requested an outside referral for a second opinion, and this was granted.  \nHer Tramadol was changed to Tylenol 3 due to drowsiness issues.  In another follow-up \nappointment  on  April  11,  2023,  she  informed  treating  personnel  at  the  clinic  that the \nnerve block gave her 60 percent improvement over a two-month period; and she rated \n\nSANCHEZ – H106627 \n \n11 \n \nher pain as 7/10 without Tylenol 3 and 4/10 with it.  Because she was never contacted \nregarding  the  second  opinion  referral,  the  request  was  repeated.   Nurse  Practitioner \nNathan Perrin wrote that she could return to work with no restrictions.  When Claimant \nwent back to the clinic on June 7, 2023, she reported that her pain was “manageable” \nwith the medication being prescribed. \n Dr. Adam Smith saw Claimant on July 27, 2023.  She presented with pain since \nher knee replacement surgery.  His report reads in pertinent part: \nI  discussed  [with]  her  that  I  am  unsure  exactly  what  is  going  on  with  her \nknee.  She could have some instability versus aseptic loosening based off \nthe x-ray.  Her knee is not grossly loose to the point that I would be overly \nconfident  that  that  is  what  the  problem  is  but  she  does  experience  pain \nwith  varus  stress.    I  have  certainly  seen  patients  with  significantly  looser \nknees with no pain so I am not sure if this was the cause.  I am going to \nget  inflammatory  markers  to  rule  out  infection.    If  they  are  elevated \nwe  will  need  to  see  her  back  for  an  aspiration.    If  they  are  negative \nthen  I  will  likely  need  to  see  her  back  in  about  2  to  3  months  to  get \nrepeat x-rays to reassess these areas of osteolysis. \n \n(Emphasis added)  He released her to return to work with no restrictions. \n On  November  29,  2023,  Claimant  went  to  Dr.  Baskin.    His  evaluation  report \nreads in pertinent part: \nIMPRESSION: \nMs.  Sanchez is  a  nice  lady  presenting  with  post-traumatic  arthritis  as  a \nresult  of  a  work  injury  around  8/2/2021  or  8/3/2021.    She  worked  as  a \ncustodian, had a fall, and sustained a severe tibial plateau fracture.  This \nwas  evaluated  by  Orthopaedics  and  it  was  suggested  she  could  have \ntrouble  down  the  road  and  in  fact  she  did.    She  went  on  to  have  a  total \nknee   arthroplasty   done   by   Dr.   Schechter   on   1/19/2022.      She   has \ncontinued to have pain in the knee.  She does have, on my x-rays, a right \ntotal  knee  arthroplasty  with  no  hardware  complication  or  fracture  seen.  \nSmall  joint  effusion  was  noted.   Previous  x-rays  by  Dr.  Adam  Smith \nsuggested that she might have had some lucencies around her knee.  We \ndo not have those films for review.  It is my impression that Dr. Schechter \n\nSANCHEZ – H106627 \n \n12 \n \nhas now released her.  I do not have any follow-up notes addressing the \nlab  that  Dr.  Adam Smith mentioned  in his 7/27/2023  encounter  note.  He \nsaid he would likely need to see her back in 2-3 months to reassess \nthese  areas  of  osteolysis.    That  has  not  been  done  that  I  can  see.  \nMs. Sanchez has continued to be off work.  She has an antalgic gait.  She \nhas  some  decrease  in  her  range  of  motion  of  the  right  knee.    I  would \nexpect  her  to  have  probably  120°  of  flexion  in  her  knee.    She  had  106° \ntoday actively and passively.  She has -5° of full extension.  She appeared \nto  have  a  stable  knee,  but  did  have  some  pain  with  varus  stress \nmaneuvers   and   to   a   lesser   extent   valgus   stress   maneuvers.      She \ncomplains of some numbness in her right foot of uncertain etiology. \n \nPLAN: \nI would suggest that we get [an] EMG and nerve conduction studies \nto  assess  the  numbness  in  her  right  foot  and  leg  which  have  been \npersistent  dating  back  to  her  original  fall  and  fracture  of  the  right \nlateral  tibial  plateau.  She  does  have  a  ratable  condition  based  on  her \nfracture  and  subsequent  total  knee  arthroplasty,  which  was  greater  than \n51% the result of her initial work injury.  She, I think, still would benefit \nfrom seeing another Orthopaedist.  If Dr. Schechter has released her, \nshe could go ahead and complete her follow-up with Dr. Adam Smith.  \nI would be happy to work her up further with regards to seeing if she \nhas evidence of a knee infection.  The knee x-rays that we did today are \nreally unremarkable except for the small joint effusion.  I would like to get \nthe  test  results  that  Dr.  Smith  ordered.   A  sed  rate,  C-reactive  protein, \nCBC and white count would be useful.  More detailed imaging of the \nknee  would  also  be  helpful,  but  the  plain  films  that  I  did  did  not  reveal \nany evidence of osteolysis-like changes.  Ms. Sanchez would normally be \nat MMI after a total knee replacement at this point, but she still is having a \nlot of pain and not able to go back to work it appears.  She has not had \nan FCE.  That would be helpful as well. \n \nUsing the  AMA  Guides  to  the  Evaluation  of  Permanent  Impairment  4\nth\n \nEdition  and  turning  to  page  85,  table  64,  a  total  knee  replacement  with \npoor  result  would  provide  an  impairment  rating  of  30%  to  the  whole \nperson,  75%  to  the  lower  extremity.    At  this  point  it  appears  that  Ms. \nSanchez has not had anything better than a poor result.  The actual final \ndiagnosis  of  her  knee  pain  is  still  unclear  at  this  point.   I  will  be \nhappy  to  see  her  back.  My  opinions  giv[en]  in this evaluation  are  done \nso   with   reasonable   medical   certainty   based   upon   my   training   and \nexperience  and  based  on  the  records  that  I  have  to  help  with  performing \nthis evaluation. \n \n\nSANCHEZ – H106627 \n \n13 \n \n(Emphasis added) \n Discussion.   Arkansas  Code Annotated Section  11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee “such medical . . . services . . . \nas  may  be  reasonably  necessary  in  connection  with  the  injury  received  by  the \nemployee.”  See  Wal-Mart  Stores,  Inc.  v.  Brown,  82  Ark.  App.  600,  120  S.W.3d  153 \n(2003).  The claimant must prove by a preponderance of the evidence that the subject \nmedical  treatment  is  reasonable  and  necessary.   Id.; Geo  Specialty  Chem.  v.  Clingan, \n69  Ark.  App.  369,  13  S.W.3d  218  (2000).    The  standard  “preponderance  of  the \nevidence” means the evidence having greater  weight or  convincing force.   Barre  v. \nHoffman,  2009  Ark.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212 \nArk. 491, 206 S.W.2d 442 (1947).  What constitutes reasonable and necessary medical \ntreatment  is  a  question  of  fact  for  the  Commission.   White  Consolidated  Indus.  v. \nGalloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut Corp. v. Jones, 73 Ark. \nApp. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \n\nSANCHEZ – H106627 \n \n14 \n \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Claimant testified that none of her treating physicians has recommended that she \nundergo any further treatment.  I cannot credit this testimony.  As outlined above, both \nDrs. Smith and Baskin have recommended additional treatment for her.  Smith wanted \nto treat her for her knee pain—which she confirmed in her testimony that she has and \nwhich I credit—by first testing her for the presence of inflammatory markers to rule out \ninfection.  In  the  event  that  such  markers  were  found,  he  then  wanted  to  aspirate  the \nknee.  Dr. Smith added that if these tests were negative, he nonetheless desired to see \nher again in two to three months to get x-rays “to reassess [her] areas of osteolysis.” \n The  Commission  is  authorized  to  accept  or  reject  a  medical  opinion  and  is \nauthorized  to  determine  its  medical  soundness  and  probative  value.   Poulan  Weed \nEater  v.  Marshall,  79  Ark.  App.  129,  84  S.W.3d  878  (2002); Green  Bay  Packing  v. \nBartlett,  67  Ark.  App.  332,  999  S.W.2d  692  (1999).    Based  on  my  review  of  the \nevidence, I credit Dr. Smith’s opinion that Claimant needs this treatment. \n Dr.  Baskin,  in  turn,  opined  not  only  that  it  would  help  Claimant  to  go  to  an \northopaedist,  but  that  the  person  to  see  her  should  be  Dr.  Smith  in  the  event  that  she \nhas been released by Dr. Schechter.  According to Baskin, Claimant should undergo an \nEMG and nerve conduction studies to determine the cause of the numbness in her right \nfoot and leg.  Moreover, he stated that more detailed imaging of the injured knee, plus a \nfunctional capacity evaluation, would be of use here.  Finally, Baskin in his report stated:  \n\nSANCHEZ – H106627 \n \n15 \n \n“The actual final diagnosis of her knee pain is still unclear at this point.”  I credit these \nopinions. \n More  than  once  in  his  report,  Dr.  Baskin  wrote  that  he  would  be  glad  to  see \nClaimant again and treat her.  I credit this, along with Claimant’s stated wish in her \ntestimony that she would like to go back to him. \n In  order  to  prove  her entitlement  to  this requested  treatment,  Claimant  must \nprove that it is causally related to her stipulated compensable knee injury.  See Pulaski \nCty. Spec. Sch. Dist. v. Tenner, 2013 Ark. App. 569, 2013 Ark. App. LEXIS 601.  I find \nthat  Claimant  has  met  her  burden  of  proof  on  this  matter.    She  has  established  her \nentitlement to additional treatment by Dr. Baskin as outlined in his report. \nCONCLUSION AND AWARD \n Respondents are directed to pay/furnish benefits in accordance with the findings \nof fact and conclusions of law set forth above.  All accrued sums shall be paid in a lump \nsum  without  discount,  and  this  award  shall  earn  interest  at  the  legal  rate  until  paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2002).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":27552,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H106627 EDUVIJES JUARDO SANCHEZ, EMPLOYEE CLAIMANT SC REALTY SVCS., INC., EMPLOYER RESPONDENT TRAVELERS CASUALTY & SURETY CO., CARRIER RESPONDENT OPINION FILED APRIL 22, 2026 Hearing before Chief Administrative Law Judge O. Milton Fine II on March 20, 2026, i...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["knee","ankle","back","fracture"],"fetchedAt":"2026-05-19T22:30:07.615Z"},{"id":"alj-H504160-2026-04-20","awccNumber":"H504160","decisionDate":"2026-04-20","decisionYear":2026,"opinionType":"alj","claimantName":"Franklin Stoddard","employerName":"City Of Jonesboro","title":"STODDARD VS. CITY OF JONESBORO AWCC# H504160 April 20, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Stoddard_Franklin_H504160_20260420.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Stoddard_Franklin_H504160_20260420.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H504160 \n \n \nFRANKLIN R. STODDARD, EMPLOYEE CLAIMANT \n \nCITY OF JONESBORO, \n SELF-INSURED EMPLOYER RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED APRIL 20, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on April  17,  2026, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Mary K. Edwards, Attorney at Law, North Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on April  17,  2026, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted into evidence were Commission Exhibit 1 (see Ark. Code Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”) and  Respondents’  Exhibit  1, \nforms, pleadings, and correspondence related to this claim, consisting of 15 and \n8 pages, respectively. \n\nSTODDARD – H504160 \n \n2 \n \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness that was  filed on July  3,  2025, \nClaimant  purportedly  suffered a back  injury at  work  on June  13,  2025,  when he \nwas moving extension stands on a trailer.  According to the Form AR-2 that was \nfiled on July 8, 2025, Respondents accepted the claim as a medical-only one. \n On July 24,  2025, through  then-counsel  Mark  Peoples, Claimant  filed  a \nForm AR-C.  Therein, he requested the full range of initial and additional benefits \nin  connection  with  his back injury.   In  electronic  correspondence  accompanying \nthis  filing,  Peoples wrote:  “I am not asking for a hearing.”  In  response  to  this, \nRespondents reversed  course.  In  a  letter  to  the  Commission  dated  July  28, \n2025, Tori Hersey, Claims Adjuster for the Arkansas Municipal League, wrote: \nWe   are   in   receipt   of   your   correspondence   dated   07/28/2025 \nregarding the AR-C filed on the above-referenced claim.  Please let \nthis serve as our timely response. \n \nThis  claim  has  been  denied.    The  First  Report  of  Injury  and  AR-2 \nwere previously filed with your office. \n \n Peoples  moved  to  withdraw  from  his  representation  of  Claimant  on \nSeptember  13,  2025.    In  an  Order  entered  on October  8,  2025,  the  Full \nCommission granted the motion pursuant to AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary 18, 2026.  On that date, Respondents’ counsel entered her appearance \nand filed the instant motion under AWCC R. 099.13 (now codified as 11 C.A.R. § \n25-110(d)) and Ark. Code Ann. § 11-9-702(a)(4), asking for dismissal of the claim \n\nSTODDARD – H504160 \n \n3 \n \nbecause Claimant  has not  made  a  hearing  request  on  the  claim  since  its  filing.  \nOn February  20,  2026,  my  office wrote  Claimant,  asking  for  a  response  to  the \nmotion within 20 days.  The letter was sent by first class and certified mail to the \nBlytheville,  Arkansas address for Claimant that  was listed  in  the  file  and  on  his \nForm AR-C.  The certified letter was claimed, on February 24, 2026; and the first-\nclass  letter  was  not  returned.   Regardless,  no  response  to  the  motion  was \nforthcoming.   On March  13,  2026,  a  hearing  on  the  Motion  to  Dismiss  was \nscheduled for April 17, 2026, at 2:00 p.m. at the Craighead County Courthouse in \nJonesboro.   The  certified  mailing  of  the Notice of  Hearing  to  Claimant was \ndelivered to Claimant on March 23, 2026; and the first-class mailing of the same \ndocument was not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under aforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n\nSTODDARD – H504160 \n \n4 \n \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under 11 C.A.R. § 25-110(d). \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) (formerly AWCC R. 099.13) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \n\nSTODDARD – H504160 \n \n5 \n \nClaimant has failed to pursue his claim because he has taken no steps to pursue \nit  (including  appearing  at  the April  17,  2026,  hearing to  argue  against  its \ndismissal) since the filing of his Form AR-C on July 24, 2025.  Thus, the evidence \npreponderates  that  dismissal of  the  claim is  warranted  under 11  C.A.R. § 25-\n110(d).  Because of this finding, the applicability of § 11-9-702(a)(4) is moot and \nwill not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \nthe  foregoing,  I agree  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth \nabove, this claim is hereby dismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nSTODDARD – H504160 \n \n6 \n \n IT IS SO ORDERED. \n     ________________________________ \n     O. MILTON FINE II \n     Chief Administrative Law Judge","textLength":7663,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H504160 FRANKLIN R. STODDARD, EMPLOYEE CLAIMANT CITY OF JONESBORO, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, THIRD-PARTY ADM’R RESPONDENT OPINION FILED APRIL 20, 2025 Hearing before Administrative Law Judge O. Milton Fine II on April 17, 202...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:30:05.529Z"},{"id":"alj-H305214-2026-04-16","awccNumber":"H305214","decisionDate":"2026-04-16","decisionYear":2026,"opinionType":"alj","claimantName":"Tina Thurman","employerName":"Gpm Investments, LLC","title":"THURMAN VS. GPM INVESTMENTS, LLC. AWCC# H305214 April 16, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Thurman_Tina_H305214_20260416.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Thurman_Tina_H305214_20260416.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305214 \n \nTINA THURMAN, \nEMPLOYEE                                                                                                              CLAIMANT \n \nGPM INVESTMENTS, LLC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nACE AMERICAN INSURANCE CO., \nCARRIER                                                                                                             RESPONDENT \n \nHELMSMAN MANAGEMENT SERVICES, LLC, \nTPA                                                                                                                        RESPONDENT   \n \n \nOPINION FILED APRIL 16, 2025 \n \nHearing conducted on Friday, March 10,  2026,  before  the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant is Pro Se, of Quitman, Arkansas.  \n \nThe Respondents  were represented by Mr. Zachary  F. Ryburn,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non January 6, 2026.  A hearing on the motion was conducted on March 10, 2026, in Little Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as an audit  manager.  The  date  for \nClaimant’s  alleged  injury  was  on August 3,   2023. This   incident   was   reported   to   the \nRespondent/Employer on August  8,  2023. Admitted  into  evidence  was Respondents’ Exhibit 1, \npleadings, consisting of 3 pages, and Commission Ex. 1, U.S. Mail return receipts, consisting of 3 \npages, as discussed infra. \n\nTHURMAN, AWCC No. H305214 \n \n2 \n \n \nThe record reflects on August 15, 2023, a Form AR-1 was filed purporting that Claimant, \nwhile counting merchandise, moved a case of beverages and felt immediate pain in her back. On \nAugust 17, 2023, a Form AR-2 was filed neither disputing or accepting that Claimant was injured \nduring the course and scope of employment.  On September 12, 2023, a Form AR-C was filed by \nClaimants  then-attorney, Laura  Beth  York,  purporting  that  Claimant  sustained an injury to  her \nback and other whole body during a work incident.  \nOn November 18, 2025, Claimant’s counsel filed a Motion to Withdraw as Counsel. The \nFull Commission granted the motion on December 12, 2025. Respondents filed a motion to dismiss \non January 6, 2026, for failure to prosecute. The Claimant was sent, on January 7, 2026, notice of \nthe Motion to Dismiss, via certified and regular U.S. Mail, to her last known address. The certified \nmotion notice was not claimed by Claimant as noted by the return of the certified return receipt \ndated January 22,  2026. This  notice was  also  sent regular  U.S.  Mail and did not return  to  the \nCommission. The  Claimant  did not respond  to  the  Motion,  in  writing,  as  required. Thus,  in \naccordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice of \nRespondents’ Motion to Dismiss hearing date at her current address of record via the United States \nPostal  Service  (USPS), First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-\nClass Mail, on February 4, 2026. The certified notice was not claimed as noted by the return of the \ncertified  letter to  the  Commission on February 25,  2026. The  hearing  notice  sent  regular  First-\nClass was not returned to the Commission. The hearing was scheduled for March 10, 2026. And \nas mentioned before, the Claimant did not show up to the hearing. \n \n \n\nTHURMAN, AWCC No. H305214 \n \n3 \n \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the March 10, 2026, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice  was not claimed by  Claimant.  The  notice  sent  regular  U.S.  Mail  was not returned  to  the \nCommission.  The  Claimant  is  responsible  for  keeping  the  Commission  apprised  of  her  current \n\nTHURMAN, AWCC No. H305214 \n \n4 \n \naddress. The Claimant did not do that. Nevertheless, sending notices to the last known address of \nrecord  is  reasonable. Thus,  I  find  by  the  preponderance  of  the  evidence  that  the  Claimant  did \nreceive reasonable notice of this motion to dismiss hearing.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to  a want of prosecution. The  Claimant filed a Form \nAR-C on September 12, 2023, since then the Claimant has not requested a bona fide full hearing, \nthus failing to prosecute her claim. Therefore, I do find by the preponderance of the evidence that \nClaimant  has  failed  to  prosecute  her claim. Thus, Respondents’ Motion to Dismiss should be \ngranted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6449,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305214 TINA THURMAN, EMPLOYEE CLAIMANT GPM INVESTMENTS, LLC., EMPLOYER RESPONDENT ACE AMERICAN INSURANCE CO., CARRIER RESPONDENT HELMSMAN MANAGEMENT SERVICES, LLC, TPA RESPONDENT OPINION FILED APRIL 16, 2025 Hearing conducted on Friday, March 10, 2026, befor...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:30:01.357Z"},{"id":"alj-H400680-2026-04-16","awccNumber":"H400680","decisionDate":"2026-04-16","decisionYear":2026,"opinionType":"alj","claimantName":"Sheila Whitlock","employerName":"B & B Oil Co., Inc","title":"WHITLOCK VS. B & B OIL CO., INC. AWCC# H400680 April 16, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Whitlock_Sheila_H400680_20260416.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Whitlock_Sheila_H400680_20260416.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H400680 \n \nSHEILA WHITLOCK, \nEMPLOYEE                                                                                                              CLAIMANT \n \nB & B OIL CO., INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nBRIDGEFIELD EMPLOYERS INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nSUMMIT CONSULTING, LLC, \nTPA                                                                                                                        RESPONDENT   \n \n \nOPINION FILED APRIL 16, 2025 \n \nHearing conducted on Friday, March 17,  2026,  before  the  Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant is represented  by  C.  Michael  White,  Attorney  at  Law, of North  Little  Rock, \nArkansas.  \n \nThe Respondents  were represented by Mr. Zachary  F.  Ryburn,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non January 6, 2026.  A hearing on the motion was conducted on March 10, 2026, in Little Rock, \nArkansas.  Claimant’s and Respondent’s counsel did appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as a deli manager.  The  date  for \nClaimant’s  alleged  injury  was  on January 19,   2024. This   incident   was   reported   to   the \nRespondent/Employer on the  same  day. Admitted  into  evidence  was Respondents’ Exhibit 1, \n\nWHITLOCK, AWCC No. H400680 \n \n2 \n \npleading, consisting of 1 page, and Commission Ex. 1, pleadings and correspondence, consisting \nof 7 pages, as discussed infra. \nThe record reflects on January 30, 2024, a Form AR-1 was filed purporting that Claimant, \nwhile taking trash up an icy hill slipped and fell resulting in pain under her right arm. On January \n30, 2024, a Form AR-2 was filed neither disputing or accepting that Claimant was injured during \nthe course and scope of employment.  On August 14, 2025, a Form AR-C was filed by Claimants \nattorney, C. Michal White, purporting that Claimant injured her upper extremity and ribs in the \ncourse and scope of her employment.  \nOn December 15, 2025, a prehearing telephone conference was held and subsequent order \nfiled on December 16, 2025, setting a full hearing for February 25, 2026, in Batesville, Arkansas. \nOn February 17, 2026, Claimant’s counsel advised the Commission, via email, that the Claimant \nwas  diagnosed  with cancer  three  weeks prior  and  passed  away.  Judge  Kennedy cancelled  the \nhearing and returned the claim to general files.  \nRespondents  filed  a  motion  to  dismiss  on March  4,  2026,  for,  as  I  interpret, due  to \nClaimant’s sudden death she is no longer able to prosecute her claim. The Claimant’s counsel was \nsent, on March 5, 2026, notice of the Motion to Dismiss, via email. Claimant’s counsel, via email \nand in person at the hearing, agreed with the dismissal due to his client’s unexpected death. Thus, \nin  accordance  with  applicable  Arkansas  law,  the  Claimant’s  counsel was emailed  notice  of \nRespondents’ Motion to Dismiss hearing date, a date he agreed to, on March 5, 2026. The hearing \nwas scheduled for March 17, 2026. \n \n \n \n\nWHITLOCK, AWCC No. H400680 \n \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the March 17, 2026, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. Claimant’s counsel \nparticipated in setting a date for the Motion hearing and accepted service, via email, and was  \n \n\nWHITLOCK, AWCC No. H400680 \n \n4 \n \npresent  at  the  hearing. Thus,  I  find  by  the  preponderance  of  the  evidence  that  the  Claimant  did \nreceive reasonable notice of this motion to dismiss hearing.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant unexpectedly \ndied due to cancer. Due to this unfortunate situation, she, along with her counsel, are no longer \nable  to  prosecute this  claim. Therefore,  I  do  find  by  the  preponderance  of  the  evidence  that \nClaimant is unable to further prosecute her claim due to her untimely death. Thus, Respondents’ \nMotion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6003,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H400680 SHEILA WHITLOCK, EMPLOYEE CLAIMANT B & B OIL CO., INC., EMPLOYER RESPONDENT BRIDGEFIELD EMPLOYERS INS. CO., CARRIER RESPONDENT SUMMIT CONSULTING, LLC, TPA RESPONDENT OPINION FILED APRIL 16, 2025 Hearing conducted on Friday, March 17, 2026, before the ...","outcome":"dismissed","outcomeKeywords":["dismissed:12","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:30:03.454Z"},{"id":"alj-H504681-2026-04-13","awccNumber":"H504681","decisionDate":"2026-04-13","decisionYear":2026,"opinionType":"alj","claimantName":"Chris Helms","employerName":"Ristorante Capeo","title":"HELMS VS. RISTORANTE CAPEO AWCC# H504681 April 13, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HELMS_CHRIS_H504681_20260413.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HELMS_CHRIS_H504681_20260413.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.:H504681 \n \nCHRIS W. HELMS,  \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nRISTORANTE CAPEO, \nEMPLOYER                                                                                                            RESPONDENT              \n \nFIRSTCOMP INSURANCE  \nCO./ MARKEL SERVICES INC.,                                                                                               \nCARRIER/TPA                                                                                                       RESPONDENT                                               \n \n \nOPINION FILED APRIL 13, 2026   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant, pro se/unrepresented did not appear at the hearing.     \n \nRespondents represented by the Honorable Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n On April 8, 2026, a hearing was held on the Respondents’ motion to dismiss this claim for \nArkansas workers’ compensation benefits due  to a  lack  of  prosecution, pursuant  to Dillard  v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004).  Here, the sole issue \nfor determination is whether this claim should be dismissed due to the Claimant’s failure to timely \nprosecute it  under the  provisions  of Ark.  Code  Ann.  §11-9-702 (Repl.  2012),  and/or Arkansas \nWorkers’ Compensation Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110(d)).  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner established by law.   \nThe  record  consists  of  the  transcript  of April 8,  2026,  hearing  and  the  documents  held \ntherein.    Specifically, Commission’s Exhibit 1   includes   four   pages   of   notices   from   the \n\nHELMS – H504681 \n \n2 \n \nCommission, the United States Postal Service, and a copy of the Form AR-2; and Respondents’ \nExhibit  1 consisting  of a  Documentary  Exhibit made up of three pages which  include  the \nRespondents’ Motion to Dismiss for Failure to Prosecute, and the Form AR-C.  Said exhibits were \nmade a part of the record without objection. \nNo testimony was taken at the hearing. \n               Procedural History \n On or about July 28, 2025, the Claimant filed a Form AR-C alleging that he sustained a \ncompensable injury in the course and scope of his employment with the respondent-employer on \nMay 20, 2025.  The Claimant alleged that he sustained an accidental injury to his right ankle.  Per \nthis  document,  the  Claimant  asserted  his  entitlement  to  both  initial  and  additional  workers’ \ncompensation benefits. \n Pursuant to a  Form  AR-2 filed by the Respondents with the Commission on August 15, \n2025, they controverted the claim in its entirety.  Specifically, the Respondents stated: “Denied in \nfull no accident no injury.”  \nSince the filing of the Form AR-C in July 2025, the Claimant has made no bona fide request \nfor a hearing on the merits of his claim.  Moreover, the Claimant has taken no affirmative action \nwhatsoever to pursue or resolve his claim for workers’ compensation benefits.           \nTherefore, the  Respondents  filed  a Motion  to  Dismiss  for  Failure  to  Prosecute with the \nCommission on February 5, 2026, along with a certificate of service to the Claimant showing that \na copy of this pleading was sent to him via email.   \nOn February  6, 2026, my  office sent  a  letter  to  the  Claimant informing  him about the \nmotion for dismissal of his workers’ compensation claim, along with a deadline of twenty days for \nfiling a written objection/response.  This correspondence was sent by way of both first-class and \n\nHELMS – H504681 \n \n3 \n \ncertified mail.  Per information received from the United States Postal Service, they delivered the \nnotice to the Claimant’s residence listed with the Commission.  However, the signature of the \nrecipient  taking  delivery  of  this  letter  is  illegible.    The  letter  sent  via  regular  mail  has  not  been \nreturned to the Commission.  \nPer a Notice of Hearing generated on February 27, 2026, my office notified the parties that \na hearing had been scheduled on the Respondents’ motion to dismiss.  Said dismissal hearing was \nscheduled for Wednesday, April 8, 2026, at 12:30 p.m., at the Arkansas Workers’ Compensation \nCommission, in Little Rock, Arkansas.  Said hearing notice was sent via first-class and certified \nmail.  \nMy review of the tracking information received from the U.S. Postal Service confirms that \nthe hearing notice sent to the Claimant via certified mail was delivered to his home and left with \nan individual on March 2, 2026.  Again, the individual’s signature appearing on the return receipt \nis illegible.  Nevertheless, the hearing notice sent to the Claimant via first-class mail has not been \nreturned to the Commission.  Under these circumstances, I find that the Claimant received proper \nnotice of the hearing.   \nTherefore, a hearing was conducted before the Commission, on the Respondents’ motion \nto dismiss  on April  8,  2026.   The  Claimant did  not appear  at  the  hearing.    However,  the \nRespondents’ attorney appeared for the hearing.   \nDuring the hearing, counsel for the Respondents moved that this claim be dismissed due to \na  lack  of  prosecution under  Ark.  Code  Ann.  §11-9-702  and/or 11  C.A.R. §25-110 (d),  without \nprejudice.  Counsel specifically noted that the Claimant has not requested a hearing on his claim \nsince the filing of the Form AR-C in July 2025.  \n \n\nHELMS – H504681 \n \n4 \n \n                     Adjudication \nTherefore, the statutory provisions and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ request for dismissal of this claim are outlined below:   \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, Ark. Code Ann. §11-9-702(d) provides:   \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section.  \n Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110 (d), reads as follows:  \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for a hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \nMy review of the records in this matter shows that more than six months have passed since \nthe filing of this claim, which was done in July 2025.  However, since that time, the Claimant has \nfailed to make a bona fide request for a hearing with respect to his claim for workers’ compensation \nbenefits, which is clearly more than six months ago.  In fact, no probative action whatsoever has \n\nHELMS – H504681 \n \n5 \n \nbeen put forth by the Claimant to pursue his claim. Moreover, the Claimant has failed to respond \nto the notices of this Commission.   \n Considering all the foregoing evidence, I am compelled to conclude that the Claimant has \nabandoned  his claim for workers’ compensation benefits.   Hence,  the  Claimant  has  failed  to \nprosecute his claim.  \n Based on all the aforementioned reasons, I find that the Respondents’ motion to dismiss \nthis  claim is  warranted.    Therefore,  pursuant  to Ark.  Code  Ann.  §11-9-702 (Repl.  2012)  and \nCommission Rule 099.13, this claim for both initial and additional benefits is hereby respectfully \ndismissed for want of prosecution.  Said dismissal is without prejudice, to the refiling of this claim \nwithin the limitation period specified by law.   \n                                         Findings of Fact and Conclusions of Law \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Claimant has not requested a hearing since the filing of the Form AR-\nC (which  was  done  more  than  six  months  ago), nor has  he taken  any \naffirmative action to resolve his claim.   \n \n3.   The Respondents filed with the Commission a motion for dismissal of this \nclaim due to a lack of prosecution, for which a hearing was held. \n \n4. Proper  Notice of  the  dismissal hearing  was had on all  parties  to  their  last \nknown address, in the manner prescribed by law.    \n \n5.          The  Claimant  did  not  appear  at  the  hearing  to  object  to  his  claim  being \ndismissed despite having received notice of the hearing.  Nor did he respond \nto the notices of this Commission. \n \n6. Hence, the evidence preponderates that the Claimant has failed to prosecute \nhis claim for workers’ compensation benefits.   Moreover,  the  evidence \nbefore me shows that the Claimant has abandoned the within claim.     \n\nHELMS – H504681 \n \n6 \n \n7. The Respondents’ motion to dismiss this claim due to a lack of prosecution \nis hereby granted, pursuant to the provisions of Ark. Code Ann. §11-9-702 \n  and 11 C.A.R. §25-110 (d), without prejudice, to the refiling of it within the \nlimitation period specified by law.  \n \nORDER \n Based  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’ compensation benefits due to a lack of prosecution.  This dismissal is pursuant to Ark. \nCode  Ann.  §11-9-702 and Commission  Rule  099.13(now  codified  at  11  C.A.R. §25-110  (d)) \nwithout prejudice to the refiling of this claim within the limitation period specified under the Act. \nIT IS SO ORDERED. \n   \n \n                                                                      ________________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":11311,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.:H504681 CHRIS W. HELMS, EMPLOYEE CLAIMANT RISTORANTE CAPEO, EMPLOYER RESPONDENT FIRSTCOMP INSURANCE CO./ MARKEL SERVICES INC., CARRIER/TPA RESPONDENT OPINION FILED APRIL 13, 2026 Hearing held before Administrative Law Judge Chandra L. Black, in Little Rock,...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:29:59.279Z"},{"id":"alj-H406682-2026-04-08","awccNumber":"H406682","decisionDate":"2026-04-08","decisionYear":2026,"opinionType":"alj","claimantName":"Larry Lazrine","employerName":"Sewell Drilling, LLC","title":"LAZRINE VS. SEWELL DRILLING, LLC. AWCC# H406682 April 08, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LAZRINE_LARRY_H406682_20260408.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LAZRINE_LARRY_H406682_20260408.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                        CLAIM NO.: H406682 \n \n \nLARRY LAZRINE, EMPLOYEE CLAIMANT \n \nSEWELL DRILLING, LLC.,  \nEMPLOYER                                                                                                            RESPONDENT  \n                                        \nBITCO GENERAL INSURANCE CORPORATION, \nINSURANCE CARRIER/TPA                                                                                RESPONDENT  \n \nOPINION FILED APRIL 8, 2026 \n             \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n \nClaimant represented  by the  Honorable  F.  Mattison  Thomas  III, Attorney  at  Law, El  Dorado, \nArkansas. \n \nRespondents represented  by the  Honorable  Micheal E.  Ryburn, Attorney at  Law,  Little  Rock, \nArkansas. \n \n          Statement of the Case \nOn February  4,  2026, the  above-captioned  claim  came  on  for a hearing in El  Dorado, \nArkansas.   A Prehearing Telephone Conference  was  conducted with  the  parties on January  21, \n2026, from  which  a Prehearing Order was  filed on that  same  day.  Said  order and  the parties’ \nresponsive filings have been marked as Commission’s Exhibit No. 1. \nStipulations \nDuring the Prehearing Telephone Conference, and/or the hearing, the parties agreed to the \nfollowing stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within  \nclaim. \n\nLazrine – H406682 \n2 \n \n 2.      The  employee-employer  insurance  carrier  relationship  existed  among  the  parties  on \nSeptember 28, 2024, at which time the Claimant allegedly sustained a compensable injury to his \nright shoulder. \n 3.      The Claimant earned wages  at  the  time  of  the  alleged September  2024 incident \nsufficient to entitle him to the maximum compensation rates for a 2024 injury. \n 4.    The Respondents have controverted this claim in its entirety.  \n 5.    All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nAct (referred to herein as the “Act”).         \nIssues \nThe parties agreed to litigate the following issue:  \nWhether  the  Claimant  is  entitled  to  additional  medical  treatment  for  his alleged right \nshoulder injury. \nContentions \n The Claimant’s and the Respondents’ respective contentions are as follows: \n Claimant   \nThe Claimant contends  that  he  sustained  a  compensable  injury  on  September  28,  2024, \nwhile  working  for  the  Respondents  in  a  drilling  rig  capacity,  injuring  his  right  shoulder  while \nperforming the necessary duties of his employment.        \n  Respondents  \nThe Respondents contend  that  the  Claimant  did not  injure  his  right  shoulder  at  work  on \nSeptember 28, 2024.  He has no objective findings. \n    Based on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \n\nLazrine – H406682 \n3 \n \nhear the testimony of the Claimant and observe his demeanor, I hereby make the following findings \nof fact and conclusions of law in accordance with Ark. Code Ann.  §11-9-704 (Repl. 2012): \n                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.      I hereby accept the above-mentioned proposed stipulations as fact. \n \n          3.         The Claimant did not prove by a preponderance of the evidence that there are any \nobjective medical findings to show that he sustained an accidental injury to his right shoulder while \nworking  for  the  respondent-employer  on  September  28,  2024.   Under  these  circumstances, I  am \ncompelled to find the Claimant has failed to prove his entitlement to any reasonable and necessary \nmedical treatment for his alleged right shoulder injury.  As a result, the employer is not liable for \nany medical treatment relating to this claim. \n          4.        All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nAct.  \nSummary of Evidence \nThe Claimant, Mr. Larry Lazrine, was the sole witness to testify during the hearing.  \n            The  record also consists  of  the  hearing  transcript  of February  4, 2026, and  the  exhibits \ncontained therein. Specifically, in addition Commission’s Exhibit 1, the following exhibits have \nalso  been  made  a  part  of  the  record: the Claimant’s  and  the  Respondents’ response  to  the \nPrehearing Questionnaire; Claimant’s Exhibit 1 consisting of two pages of a Photocopy of a Check \nfrom  Sewell  Drilling,  LLC  to  the  Claimant; Claimant’s Exhibit 2 entailing five  pages  of  text \nmessages; Claimant’s Exhibit 3 consisting of two pages of Photographs; Claimant’s Exhibit  4 \nconsisting  of two pages; Claimant’s Exhibit 5  encompasses a one  page Photocopy  of a Text \nMessage/Statement  from  Austin  Duck  to  the  Claimant; a Photocopy  of a Text  Message  from \n\nLazrine – H406682 \n4 \n \nDaniel Crotty to the Claimant entailing only one was marked Claimant’s Exhibit 6; and Claimant’s  \nExhibit  7 comprising of a two-page  Letter from the Claimant’s attorney to  my  office dated \nFebruary 3, 2026.  \n                                              Background \n \n The Claimant, now age 62, confirmed that in September 2024, he was working for Sewell \nDrilling,  LLC.    He  testified  that  he  performed  employment  duties  of  what  they  classified  as  a \nmotorman mechanic. According to the Claimant, he took care of the engines and helped maintain \npipes  and  other  equipment.    At  that  time  of  his  alleged  incident,  the  Claimant  had  worked  for \nSewell Drilling a couple of days shy of one year.  He confirmed that he is a resident of Texas, but \npreviously he temporarily lived in Arkansas.  Per the Claimant, while in Arkansas, he and his wife \nlived in a camper with his daughter and granddaughter. \n In  September  2024,  the  Claimant  testified  that  they  were  drilling  a  new  well  in  Union \nCounty out on Highway  335 in El Dorado.  At that time, the Claimant’s supervisor was Daniel \nCrotty.  He explained that if his supervisor were unavailable when something happened, he would \nnotify the tool pusher or a driller or even go to someone else about it.   \n He essentially confirmed that he  was involved in  an on-the-job injury on  September 28, \n2024, around 12:45 p.m.  According to the Claimant, Daniel Crotty had directed him to start getting \neverything rigged down because they had finished up and completed all the work on the well.   \n The Claimant provided the following explanation of what happened on September 28: \n  A. We finished making a connection on – on the floor, and it’s – it’s me, the  \n  chain hand and the – the worm – what we call a worm, which is the one that works \n  on the - - on the other side of the chain hand.  And we finished making the  \n  connection and, as we kind of broke up and got ready to go do our thing, I was  \n  fixing to go check motors and check the oil and stuff in the motors, make sure  \n  they’re running right, and Daniel said, “Okay, we are going to start rigging down \n  and stuff.  I want y’all to get to - - and make sure you get those tongs, those spare \n  tongs, and put them in the parts house.” And so he said, “Grab one of them, grab  \n\nLazrine – H406682 \n5 \n \n  either Austin or Todd.” \n   So I told Todd.  Austin was busy, so I asked Todd to come help me, and  \n  when me and Todd went down there to move them, and we come off of a mat and \n  there was some ruts, and Todd was walking backwards and he actually stumbled  \n   and we almost dropped them, and it jerked me forward and then to the side.  But  \n  the arm up here, I was holding onto that, and that’s what caught my arm and – and  \n  kind of just bent it between my – my leg.  My elbow was right here stuck and it just \n                        bent it backwards. \n \n  Q. All right.  Did you feel any sensation when that occurred?  \n \n  A. Yes, sir.  A great pain. \n   \n According to the Claimant, they were able to get the tongs back up and carry them over to \nthe parts house, which was about six feet away from them.  The Claimant testified that the tongs \nweigh  approximately  275  to  325  pounds.    He  confirmed  that  the  two  of  them  were  able  to \nphysically carry them from one location to another.  The Claimant testified that once they were at \nthe parts house, he told Todd he pulled something in his back.  He further testified that after this \noccurred he felt pain in his lower back and shoulder. \n The  Claimant  confirmed  that  he  is  claiming  injuries  to  his  back  and right shoulder,  for \nwhich he seeks medical treatment.  However, he agreed that the primary injury is to his shoulder.  \nHe  testified  that  he  reported  his  injury  to  Daniel.    According  to  the  Claimant,  Daniel  made  a \nstatement about how heavy those things are and adjusted his hat and sat back in the driller chair \nand  went  back  to  sleep.   The  Claimant  testified  that  Daniel  blew  him  off.  According  to  the \nClaimant,  he  took  the  photograph to  show  to  Terry,  who  runs  the  company for the  owner/Gary \nSewell.  Per the Claimant, there were other employees present to witness him advising of his injury. \nThe Claimant testified that Austin Duck was one of the employees present.      \n He admitted that he went to work the next day.  However, the Claimant testified that he did \nnot get anything done because he had shoulder pain.  According to the Claimant, he complained \nabout  something  seriously  being  wrong  with  his  shoulder while  at  work  that  day.   When  the \n\nLazrine – H406682 \n6 \n \nClaimant got back home, he went to Urgent Care.  The Claimant confirmed that he sent the above \nbills to Sewell and they reimbursed him by way of a check.  Said check has been made a part of \nthe record.  He confirmed that he got some prescription medications pursuant to his clinic visit.  \nThe Claimant testified that he was on a regimen of medications for a period of ten days.  He verified \nthat the company reimbursed him for the cost of his medications.  The Claimant testified that his \nwife contacted Sewell’s secretary about his injury, and she was informed that Sewell does not use \nworkers’ compensation insurance.  Instead, his wife was told that employees send their medical \nbills directly to them and they pay the medical bills and the employee. \n At that time, the Claimant was on a five-day regimen of pain medicines, muscle relaxers, \nand  steroids.    He  confirmed  that  the  doctor prescribed muscle  relaxers for  him.    The  Claimant \nadmitted that he had muscle spasms at that time.  Per the Claimant, they gave him two injections \nat the Urgent Care Clinic.  He denied having received any other medical treatment for his shoulder.  \nThe Claimant denied that he was paid for his lost time while off work.  Since this time, the Claimant \ndenied that he has ever gone back to work. The Claimant denied that he has been able to afford to \ngo to the doctor to find out exactly what is going on with him.           \n   On October 4, Daniel Crotty notified the Claimant not to return to work because the rig \nwas back at the yard, and he told him he would let him know when to return to work.  In other \nwords,  the  Claimant  explained  that  he  was discharged,  because  this  is  how  employees  are \nterminated.  He denied that he has received any calls from Sewell Oil checking on his condition \nor  telling  him to  return  to  work.   The  Claimant  denied  ever  having  any  prior  back  or  shoulder \nproblems or injuries.  According to the Claimant, he has not had any kind of prior medical issues.  \nIn fact, the Claimant testified that he has not had any type of health issues.  He stated that he has \nnot seen a doctor since 1987.   \n\nLazrine – H406682 \n7 \n \n About his current physical condition, the Claimant testified that he has difficulties walking \nto his mailbox, which is about the distance of a half-a-city block from his residence.  According to \nthe Claimant, by the time he turns around from the mailbox and starts walking back, his hips and \nlower back start burning so bad that he has to stop for a minute and then start walking again.   \n On cross-examination, the Claimant explained that he is unable to work because he cannot \nstand for lengthy periods of time or walk too far because his back goes to hurting.  However, he \ntestified that the main issue is with his right shoulder.  According to the Claimant, he cannot pick \nup or move anything with his shoulder without it feeling “like it is going to pop out of socket.”  \n The following exchange took place with the Claimant and Respondents’ attorney: \n  Q. You understand that the issue for today in the Judge’s Prehearing Order is  \n  your left shoulder? \n \n  A. Yes, sir. \n \n  Q. There is no back? \n \n  A. No, it’s  -- it’s actually my right shoulder. \n \n       *** \n  Q. There’s no back claim being litigated today.  But the reason you can’t work \n  is not your – your right shoulder, it's your back. \n \n  A. No. It’s my shoulder.  My shoulder  -- \n \n He insisted that  his  shoulder  hangs  down  an  inch  and  a  half  lower  than  the  other  one.  \nAccording  to  the  Claimant,  he cannot do  anything  with  it  physically,  and  all  night  and  day  his \nshoulder aches and burns.  He confirmed that he is asking his employer to pay for him to go to the \ndoctor.    \n Under further questioning, the Claimant admitted that he was told by Sewell’s management \nto  fill  out  an  injury  report  and take  a  drug,  but  he  failed  to  do  so.    The  Claimant denied  using \nmarijuana.   \n\nLazrine – H406682 \n8 \n \nNo medical documentation or report to establish a compensable injury by medical evidence \nsupported by objective findings has been presented in this matter.  In fact, no medical evidence \nwhatsoever has been made a part of the record in this claim. \n                     Adjudication         \n The Claimant has alleged that he sustained injuries to his back and shoulder as a result of \na specific incident while working for the respondent-employer on September 28, 2024.  However, \nthe only issue to be litigated related to the Claimant’s right shoulder. \n In that regard, for the Claimant to establish a compensable injury as a result of a specific \nincident, the following requirements of Ark. Code Ann. §11-9-102(4)(A)(i) (Repl. 2012), must be \nestablished:  (1)  proof  by  a  preponderance  of  the  evidence  of  an  injury  arising  out  of  and  in  the \ncourse of employment; (2) proof by a preponderance of the evidence that the injury caused internal \nor external physical harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. §11-9-\n102 (4)(D), establishing the injury; and (4) proof by a preponderance of the evidence that the injury \nwas caused by a specific incident and is identifiable by time  and place of occurrence.   Mikel v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).   \n A  compensable  injury  must  be  proven  by  medical  evidence  supported  by  objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings \nthat  cannot  come  under  the  voluntary  control  of  the  patient.   Id.  §  11-9-102(16).  The  element \n“arising out of . . . [the] employment” relates to the causal connection between the Claimant’s \ninjury  and  their  employment.   City  of  El  Dorado  v.  Sartor,  21  Ark.  App.  143,  729  S.W.2d  430 \n(1987).    An  injury  arises  out  of  a Claimant’s employment “when a causal connection between \nwork conditions and the injury is apparent to the rational mind.” Id. \n\nLazrine – H406682 \n9 \n \n If the Claimant fails to prove by a preponderance of the evidence any of the requirements \nfor proving compensability, compensation must be denied.  Mikel v. Engineered Specialty Plastics, \n56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard means evidence that has greater weight \nor more convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet \nCove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \nAfter reviewing the evidence as a whole, without giving the benefit of the doubt to either \nparty,  I  find  that  the  Claimant  has  failed  to  prove that he  sustained  a  compensable  injury  while \nworking for the respondent-employer on September 28, 2024.   Specifically, the Claimant did not \noffer any documentary medical evidence whatsoever in support of objective medical findings to \nauthenticate  a  finding  of  compensability for  his  alleged  right  shoulder  injury.   Therefore,  I  am \ncompelled to find that the Claimant did not prove he sustained a compensable right shoulder injury \non  September  28,  2024.  As  a  result, the respondent-employer has no  liability to  provide  the \nClaimant  with any  reasonably necessary  medical treatment  in connection  with  his  alleged  right \nshoulder injury. \n                                                                  ORDER \n The Claimant did not furnish objective medical evidence so as to prove all the necessary \nelements  for proving a compensable right  shoulder injury, for  which  he  would  be  entitled \nreasonable and necessary medical treatment.     \n      IT IS SO ORDERED. \n \n \n            ______________________________ \n            CHANDRA L. BLACK \n                   Administrative Law Judge \n \n \n\nLazrine – H406682 \n10","textLength":17718,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H406682 LARRY LAZRINE, EMPLOYEE CLAIMANT SEWELL DRILLING, LLC., EMPLOYER RESPONDENT BITCO GENERAL INSURANCE CORPORATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 8, 2026 Hearing held before Administrative Law Judge Chandra L. Black, in El Dorad...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["shoulder","back"],"fetchedAt":"2026-05-19T22:29:57.188Z"},{"id":"alj-H502362-2026-04-07","awccNumber":"H502362","decisionDate":"2026-04-07","decisionYear":2026,"opinionType":"alj","claimantName":"Hunter Eddings","employerName":"Packaging Specialties, Inc","title":"EDDINGS VS. PACKAGING SPECIALTIES, INC. AWCC# H502362 April 07, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/EDDINGS_HUNTER_H502362_20260407.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EDDINGS_HUNTER_H502362_20260407.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H502362 \n \nHUNTER EDDINGS, Employee CLAIMANT \n \nPACKAGING SPECIALTIES, INC., Employer RESPONDENT \n \nCCMSI, Carrier RESPONDENT \n \n \n \n OPINION FILED APRIL 7, 2026 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by ERIC NEWKIRK Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On May 20, 2025, the claimant filed an AR-C requesting various compensation benefits \nin which he alleges an injury to his head on or about April 8, 2025. There has been no request for \na hearing and no further action was taken in this claim. \n On December  17,  2025,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim be dismissed for lack of prosecution. A hearing was scheduled for March 10, 2026. Notice \nof that hearing was sent to the claimant by certified mail, return receipt requested on February 2, \n2026. United States Postal Department records indicate that claimant received and signed for the \nnotice on February 5, 2026. Due to a scheduling conflict, the hearing was rescheduled for March \n11,  2026.  Notice  of  the  rescheduled  hearing  was  sent  to  the  claimant  by  certified  mail,  return \n\nEddings – H502362 \n \n-2- \nreceipt requested on February 9, 2026. That certified mail notice was returned to the Commission \nby the Post Office with a notation “Return to Sender. Refused. Unable to Forward.” \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After a review of the \nrespondents’ Motion to Dismiss, the claimant’s lack of desire to pursue his claim, and his failure \nto appear at the scheduled hearing, as well as all other matters properly before the Commission, I \nfind  that  claimant  has  failed  to  prosecute  this  claim.  Therefore,  this  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2373,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H502362 HUNTER EDDINGS, Employee CLAIMANT PACKAGING SPECIALTIES, INC., Employer RESPONDENT CCMSI, Carrier RESPONDENT OPINION FILED APRIL 7, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claimant not re...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:55.056Z"},{"id":"alj-H204851-2026-04-01","awccNumber":"H204851","decisionDate":"2026-04-01","decisionYear":2026,"opinionType":"alj","claimantName":"Janet Foster","employerName":"Goodwill Industries Of Arkansas","title":"FOSTER VS. GOODWILL INDUSTRIES OF ARKANSAS AWCC# H204851 April 01, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FOSTER_JANET_H204851_20260401.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FOSTER_JANET_H204851_20260401.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H204851 \n \nJANET FOSTER, EMPLOYEE      CLAIMANT \n \nVS. \n \nGOODWILL INDUSTRIES OF ARKANSAS, \nEMPLOYER          RESPONDENT \n \nATA WC TRUST/RISK MANAGEMENT \nRESOURCES, CARRIER/TPA       RESPONDENT \n \n \nOPINION AND ORDER FILED APRIL 1, 2026 \n \nA Hearing before Administrative Law Judge James D. Kennedy was held on March 30, \n2026, in Fort Smith, Arkansas. \n \nClaimant was pro-se and failed to appear. \n \nRespondents were represented by Melissa Wood, of Little Rock, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on the 30\nth\n day of March 2026, in \nFort  Smith,  Arkansas, on Respondent’s  Motion  to  Dismiss  for  failure  to  prosecute \npursuant  to 11  C.A.R. 25-110(d) which  was  previously  named  Rule  099.13  of  the \nArkansas Workers’ Compensation Commission. The claimant  was pro  se and  failed  to \nappear. The Respondents were represented by Melissa Wood of Little Rock, Arkansas. \nThe  Claimant  had  previously  been  represented  by Eddie  Walker,  who  was  allowed  to \nwithdraw by an Order, dated June 2, 2025.  \nThis Motion to Dismiss was filed on January 5, 2026, requesting that this matter \nbe dismissed pursuant to 11 C.A.R. 25 -110(d).  A previous Motion to Dismiss hearing \nhad been held on October 6\nth\n, 2025, and that motion was denied.  A Form AR-2 was filed \n\nFoster – H204851   \n2 \n \non December 29, 2022, which provided that the claim had been accepted. An AR-C Form \nwas filed  on November  1,  2023.  The Claimant sustained  a  compensable hernia  injury, \nand a hearing had been held on April 22, 2024, for additional benefits for temporary total \ndisability, additional medical, and entitlement to a weight loss program. The Claimant has \nmade no  request  for  an  additional hearing to  further prosecute  her claim and  an email \nprovided that the claimant had no objection to a dismissal. \n After proper and reasonable notice, a hearing was held on March 30, 2026, on the \nsecond  Motion  to  Dismiss and  the Claimant failed  to  appear.  The Respondents  were \nrepresented by Melissa Wood, who requested that the matter be dismissed pursuant to \n11 C.A.R. 110(d) of the Arkansas Workers’ Compensation Commission.   \n 11 C.A.R. 110 (d) provides that upon a meritorious application from either party in \nan  action  pending  before  the  Commission,  requesting  that  the  claim  be  dismissed  for \nwant of prosecution, the Commission may, upon reasonable notice to all the parties, enter \nan order dismissing the claim for want of prosecution. Here, it is found that reasonable \nnotice to all the parties was provided, and that the Claimant has not made a bona fide \nrequest for a hearing to prosecute her claim.     \n \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion  to  Dismiss without  prejudice pursuant  to 11  C.A.R.  110(d) of  the  Arkansas \nWorkers’ Compensation Commission, after a finding of reasonable notice to all the parties \n\nFoster – H204851   \n3 \n \nand a finding of a meritorious request by the Respondent that the claim be dismissed due \nto the Claimant failing to prosecute her claim.    \nIT IS SO ORDERED. \n          ______________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":3418,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204851 JANET FOSTER, EMPLOYEE CLAIMANT VS. GOODWILL INDUSTRIES OF ARKANSAS, EMPLOYER RESPONDENT ATA WC TRUST/RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION AND ORDER FILED APRIL 1, 2026 A Hearing before Administrative Law Judge James D. Kennedy ...","outcome":"dismissed","outcomeKeywords":["dismissed:10","denied:1"],"injuryKeywords":["hernia"],"fetchedAt":"2026-05-19T22:29:48.805Z"},{"id":"alj-H500803-2026-04-01","awccNumber":"H500803","decisionDate":"2026-04-01","decisionYear":2026,"opinionType":"alj","claimantName":"Verlencia Gatewood","employerName":"Trinity Rail Maintenance Svcs","title":"GATEWOOD VS. TRINITY RAIL MAINTENANCE SVCS. AWCC# H500803 April 01, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Gatewood_Verlencia_H500803_04012026.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Gatewood_Verlencia_H500803_04012026.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H500803 \n \n \nVERLENCIA D. GATEWOOD, \n EMPLOYEE CLAIMANT \n \nTRINITY RAIL MAINTENANCE SVCS., \n EMPLOYER RESPONDENT \n \nACE AMERICAN INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED APRIL 1, 2026 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on February 20, 2026, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr. Jason  M.  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On February  20,  2026,  the  above-captioned  claim  was  heard  in Jonesboro, \nArkansas.    A  prehearing  conference  took  place  on December  1,  2025.    A  prehearing \norder entered on that date pursuant to the conference was admitted without objection as \nCommission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n The parties discussed the stipulations set forth in Commission Exhibit 1.  After an \namendment of the second and fourth at the hearing, they read as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n\nGATEWOOD – H500803 \n \n2 \n2. The  employee/employer/carrier relationship  existed  among  the  parties \nfrom June 28, 2023, to June 4, 2024. \n3. Respondents have controverted this claim in its entirety. \n4. The  parties  will  stipulate  to  Claimant’s  average  weekly  wage  and \ncompensation rates within 14 days after the hearing.  In the event they are \nnot able to do so, the issue concerning the valuation of these items will be \nconsidered reserved.\n1\n \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether  Claimant sustained a compensable  occupational  disease  in  the \nform of a fungal infection that has affected her lower extremities. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged compensable injuries. \n3. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from \nJune 3, 2023, to January 3, 2024. \n All other issues have been reserved. \n \n \n1\nThe  parties  did  not  submit  such  a  proposed  stipulation  to  me  within  the  time \nallotted.    Thus,  pursuant  to  the  stipulation  as  written,  the  issue  of  the  valuation  of \nClaimant’s average weekly wage will be considered reserved. \n \n\nGATEWOOD – H500803 \n \n3 \nContentions \n The respective contentions of the parties read: \n Claimant: \n1. Claimant contends that she sustained a compensable injury in the form of \na fungal infection that started at the bottom of her feet and began to move \nup to her knees.  The cause of this infection was her working conditions \nfor  Respondent employer,  where  she  had to  stand  in  rainwater  that  was \ncontaminated by tobacco juice/saliva and animal feces. \n2. Claimant further contends that she is entitled to reasonable and necessary \ntreatment  of  her  alleged  injuries,  along  with  temporary  total  disability \nbenefits from June 3, 2023, to January 3, 2024. \nRespondents: \n1. Claimant  did  not  suffer  a  compensable  injury  or  occupational  disease.  \nShe has  not  been  taken off  work  by any medical  professional,  and  is  not \nentitled to temporary total disability benefits.  It is unclear when the alleged \nrash  developed;  and,  therefore,  Respondents  reserve  the  right  to  raise \nnotice and statute of limitations as defenses. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of Claimant and  to  observe  her  demeanor,  I  hereby  make  the  following \n\nGATEWOOD – H500803 \n \n4 \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Respondents’ motion to add an issue and contention concerning whether \nthis claim is barred by the Doctrine of Laches is hereby denied. \n4. Claimant’s motion to amend Issue No. 3 to remove the date parameters \nset forth therein is hereby granted. \n5. Claimant has  proven  by  a  preponderance  of  the  evidence  that that  she \nsustained  a  compensable  occupational  disease  under  Ark.  Code  Ann.  § \n11-9-601 (Repl. 2012) in the form of a fungal infection, tinea corporis, that \nhas affected her lower extremities. \n6. Claimant  has  proven  by  a  preponderance  of  the  evidence  that she  is \nentitled    to    reasonable    and    necessary medical treatment   of    her \ncompensable occupational  disease.    Moreover, she  has  proven  by  a \npreponderance of the evidence that all of her treatment therefor that is in \nevidence was reasonable and necessary. \n7. Claimant  has not proven  by a  preponderance  of  the evidence  that  she  is \nentitled to temporary total disability benefits for any period. \n\nGATEWOOD – H500803 \n \n5 \nPRELIMINARY RULINGS \n Addition of Laches Issue and Contention \n At the outset of the hearing, Respondents moved to add an issue and contention \nconcerning whether the Doctrine of Laches bars this claim.  Claimant objected, stating \nthat she was just learning of this at the hearing.  I took the objection under advisement. \n As the Court of Appeals wrote in Sapp v. Tyson Foods, 2010 Ark. App. 517, 2010 \nArk.   App.   LEXIS   549, “elementary  principles  of  fair  play”  apply  in  Commission \nproceedings.  I find that such an addition at that stage in the proceedings would unfairly \nprejudice Claimant; and it would violate “elementary principles of fair play.”  After due \nconsideration, Respondents’ motion is hereby denied. \n Amendment of Temporary Total Disability Issue \n In light of the parties’ amendment of Stipulation No. 2, I pointed out that the dates \nfor  which  Claimant  is  seeking  temporary  total  disability  benefits  do  not  completely  line \nup  with  her  tenure  of  employment  with  Respondent  Trinity  Rail  Maintenance  Services \n(“Trinity”).  I suggested that date parameters be removed from the issue as stated, and \nthat  the  issue  be  simply  worded,  “Whether  Claimant  is  entitled  to  temporary  total \ndisability benefits.”  The  resolution  of  that  amended  issue  would  be  simply  whether \nClaimant proved that she was entitled to such benefits as a consequence of her alleged \ncompensable  injuries,  and  for  what  period(s).    Claimant  agreed  to  this  proposal,  and \nmoved for such an amendment.  Respondents objected, claiming unfair surprise similar \nto  that  cited  by  Claimant  in  response  to  the  Doctrine  of  Laches  issue.    I  took  the \nobjection under advisement. \n\nGATEWOOD – H500803 \n \n6 \n After  due  consideration  of  this  matter,  I  find  that Claimant’s motion  is  well-\nfounded.   It  is  hereby  granted.   Respondents  came  to  the  hearing  prepared  to  defend \nagainst  Claimant’s  claim  for  temporary  total  disability  benefits.    It  would  not  violate \n“elementary principles of fair play” under Sapp, supra, to allow the amendment of Issue \nNo. 3 as set forth above.  Respondents’ objection is thus overruled. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the Prehearing Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case were Claimant’s Exhibit 1, a  compilation  of  her  medical  records, \nconsisting  of  five numbered  pages; Claimant’s Exhibit 2, a  color photograph of  her  left \nlower  extremity; Claimant’s Exhibit 3, a  color  photograph  of  her  right  lower  extremity; \nRespondents’ Exhibit 1, non-medical  records,  consisting  of one index  page  and 15 \nnumbered pages thereafter; and Respondents’ Exhibit 2, a thumb drive containing video \nfootage. \n In addition, the transcript of the October 17, 2025, hearing on this claim has been \nincorporated herein in its entirety by reference. \n\nGATEWOOD – H500803 \n \n7 \nAdjudication \nA. Compensability \n Introduction.    Claimant   has   alleged   that she contracted   a   compensable \noccupational  disease as  a  result  of  her exposure  to  contaminated  rainwater  at her  job \nfor  Respondent Trinity,  and  that  this  disease  has  affected  her  lower  extremities.  \nRespondents dispute this. \n Standards.  In defining this cause of action, Ark. Code Ann. § 11-9-601(e)(1)(A) \n(Repl. 2012) provides: \n(A) “Occupational disease”, as used in this chapter, unless the context \notherwise  requires,  means  any  disease  that  results  in  disability  or  death \nand arises out of and in the course of the occupation or employment of the \nemployee or naturally follows or unavoidably results from an injury as that \nterm is defined in this chapter. \n \nA causal connection between Claimant’s job and the disease must be established by a \npreponderance  of  the  evidence.   Id.  §  11-9-601(e)(1)(B).  This  standard  means  the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, \n326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark. 491,  206  S.W.2d  442 \n(1947).   \n Evidence.  Claimant is 41 years old, and a high school graduate.  She also has a \ndegree in painting and collision repair from a vocational technical school.  Her testimony \nwas  that  she  went  to  work  for  Respondent  Trinity  in  June  2023.    The  company \nmaintains rail cars.  That can consist of refurbishing old ones, and finishing new ones.  \nShe described her jobs there as follows: \n\nGATEWOOD – H500803 \n \n8 \nAnd  what  I  did,  I  started  off  prepping,  like—yeah,  prepping.    So  when \nsomeone  would  finish  painting  a  car,  I  would  then  go  over  it  and  see \nanything  that  needed  to  be  done  or  corrected.    And  so  by  the  end  of  my \ncareer at Trinity Rail, I started painting the railcars.  I would get in a lift and \npaint the  top  of  a  railcar,  get  on  the  top  of  it,  paint  the  top  of  it,  and  get \nback on the side and go all the way down a 50-foot railcar. \n \nThe  first  part  of  her  tenure  there,  which  consisted  of  prepping  the  retouching,  lasted \nfrom June 2023 until January 2024.  At that point, she transitioned to actual painting of \nthe  railcars.   Throughout  the  time  that  she  worked  at  Trinity,  she  wore  steel-toe work \nboots.    This  footwear  was  not  water-repellant.    During  the  11  months  that  she  worked \nthere,  Claimant  had  three  pairs  of boots;  Trinity  paid  for two pairs,  and  she  purchased \none pair. \n The testimony of Claimant was that during the time that she worked the touch-up \njob,  she  worked  in  an  area  of  the  Trinity  building  that  had  standing  water.    She  gave \ninconsistent  testimony  in  estimating  the  depth  of  this  water;  but  she  was adamant  that \non two occasions following a rain, it covered the toes of her boots.  As a result, during \nthis  and  other  instances, her  boots  became  soaked.   Claimant  related  that  her  boots \nwould become wet even when she switched to working in the dry paint booths because \nshe  still had  to  walk  through  the  water  in  order  to  reach  her  station.   She  testified  that \nwhen she got home each day, she placed the boots on a dryer.  But while she was at \nwork  on  a  given  day,  once  her  boots  became  wet,  she continued  to  wear them \nthroughout her shift. \n\nGATEWOOD – H500803 \n \n9 \n This  problem  with  wet  footwear  was  known  among  Claimant’s  co-workers  at \nTrinity.  To combat any effects on her feet from it, they advised her to soak her feet in \nEpsom saltwater before putting her boots back on. \n In  describing  the  source  of  the  water,  Claimant  attributed  it  to  rain.    She \ndescribed seeing water run down the walls of the building.  But this water, according to \nher,  did  not  remain  pure.    She  stated  that  it  contained,  inter  alia,  rodent  droppings, \ntobacco spit from her co-workers, and chemicals used in the painting of the railcars. \n Shown  the  photographs  that  comprise  her  Exhibits  2  and  3,  Claimant  testified \nthat  they  were  taken  on  June  4,  2024.    This  was  the  same  day  that  she  first  sought \ntreatment  for  her  alleged  skin  condition.    The  photographs  are  of  her  legs  below  the \nknee, and appear to depict a rash of some sort on each leg.  Asked when this rash first \nappeared, Claimant responded that it was in January 2024, when she noticed it on the \nbottoms of her feet.  At that point, it presented as small red bumps. \n The following exchange occurred: \nQ. Let  me  ask  you  this,  Ms.  Gatewood.    Why  do  you  think  that  this \ncondition on your legs has anything to do with your job at Trinity? \n \nA. Because I never had anything like that on my leg.  Like I haven’t—I \nnever had any skin problems or anything.  Even painting, like, I’ve \nalways painted.  I never had any skin problems with painting.  And \nlike I said, it started on my feet. \n \n. . . \n \nQ. Why  do  you  think  if  you  never  got  those  body  parts  [her  legs]  wet \nthat your body would be affected there? \n \n\nGATEWOOD – H500803 \n \n10 \nA. Because  the  same  thing  that  was  on  my—the  bottom  of  my  feet, \nand how the bottom of my feet were feeling.  It wasn’t an itch.  It felt \nlike I needed to go on the inside of my skin.  The feeling, it was the \nsame.    They  looked  the  same  and  they  felt  the  same.    And  they \nwere on my feet and they—it came to my legs.  So I just figured it \nwas the same thing. \n \nQ. I mean, I’m looking here and I don’t know what you were covered \nwith.  I’m show you the photographs [Claimant’s Exhibits 2 and 3].  \nYou’ve not testified that your pants were wet.  You’ve not testified \nthat  the—that your socks were wet up that high.  So I’m trying to \nfigure  out  why  you  subjectively  believe  that  these  spots  that  are \ndepicted  in  these photographs  are  caused from  being  in the  water \nat Trinity. \n \nA. Oh.  Because the same spots that were on my leg were on my feet \nat first.  They just wasn’t—it just wasn’t as much on my feet.  They \nwere  just  like  little—small,  little  blotches  on  the  bottom  of  my  feet.  \nAnd  they  were  itching  really  bad.    And  when  I  started  doing  the \nEpsom salt, they would relieve, but the spots didn’t go away.  And \nthen  I  started  scratching my  ankles.   And  then  I  started  scratching \nmy  legs  and  I  was  seeing  that  it  was  moving.    It  seemed  like  the \nrash was just like in different—but it was still on my feet at the time, \nbut it was just—it’s like it was, I don’t know.  It was like growing or \nsomething.  And it was—yeah, worse. \n \n Shown  a  letter  that  was  filed  with  the  Commission  on  September  30,  2024, \nClaimant  identified  it  as  one  she  wrote.    It  describes,  inter  alia,  her  having  a  fungal \ninfection due to her being in water at work.  The following exchange took place: \nQ. When  did  you  first  tell  Trinity  that  you  had  this  rash  and  that  you \nbelieved it was related to work? \n \nA. I’m  not  sure.    I  talked  with  the  manager  first.    We  just  had  the \nsupervisor,  a  conversation    We  had  a  conversation.    I  was  just \ntelling him about—and the first time we had the conversation, I was \ntelling  him  about  my  feet.    My  feet  were  messed  up.    And  it \nprogressed  to  my  legs  and  I  told  him  about  that.    And  then  I  told \n\nGATEWOOD – H500803 \n \n11 \nhim that it was like I couldn’t barely stand it.  And that’s when I was \ntold to see Mr. Brad. \n \nQ. Do you know when any of that happened? \n \nA. No, sir.  I don’t know the dates.  I’m not sure about which date I \napproached him. \n \nLater, Claimant stated that the above conversation would have taken place after March \n2024. \n Respondents cited to Claimant Ark. Code Ann. § 11-9-603(a)(2)(A) (Repl. 2012), \nand asked her if she was aware that she was required by the Act to give her employer \nwritten notice of her alleged occupational disease within 90 days after its “first distinct \nmanifestation.”  She testified that she was not aware of this requirement.\n2\n \n According  to  Claimant,  she  first  treated  for  her  leg  condition  when  she  saw \nBernice  Brown,  APRN,  at  Compliance  &  Screening  Services,  LLC,  on  June  4,  2024.  \nBrown  prescribed  her  a  topical  cream  of  Clotrimazole  1%.    Claimant  obtained  the \nmedication and used it.  Asked whether it helped, she replied in the affirmative. \n The  medical  records  in  evidence include Claimant’s  visit  to APRN  Berniece \nBrown detailed above.  The history portion of that report reads: \n[Claimant]  also  reports  that  she  has  developed  a  rash  to  her  lower \nextremities, and believes it was a result of rainwater that had accumulated \nin  her  boots.    She  has  a  red,  scaly  rash  to  her  anterior  lower  legs.    She \n \n \n2\nWhether  Claimant’s  claim  is  barred  under  this  provision  is  not  before  me, \nbecause Respondents did not raise it as an issue.  I do not have the authority to raise \nsuch an issue sua sponte.  Moreover, I note that the Arkansas Supreme Court has held \nthat such a defense is waived if not raised at or before the first hearing.  See Peerless \nCoal Co. v. Gordon, 237 Ark. 152, 372 S.W.2d 240 (1963). \n \n\nGATEWOOD – H500803 \n \n12 \nreports that it itches terribly and appears to be spreading as it had started \non her feet and now has moved up her legs. \n \nBrown examined Claimant and noted:  “There is rash on the legs.”  Thereafter, Brown \nassessed Claimant as having “Tinea corporis (B35.4)” and prescribed her Clotrimazole \n1% topical cream. \n On  February  11,  2026,  Claimant  went  to  the  Skin  Dermatology  Practitioner,  a \nclinic in Jonesboro.  Treating personnel assessed her as having Dermatitis Unspecified, \nand prescribed her Triamcinolone Acetonide 0.1% to apply to her legs.\n3\n \n Discussion.  Claimant was diagnosed by APRN Brown as having tinea corporis.  \nI credit this finding.  The Commission is authorized to accept or reject a medical opinion \nand  is  authorized  to  determine  its  medical  soundness  and  probative  value.   Poulan \nWeed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); Green Bay Packing v. \nBartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999). \n Per   DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1913   (30\nth\n ed.   2003) \n(hereinafter  “DORLAND’S”),  “tinea corporis”  is  also  known  by  the  popular  name \n“ringworm.”  It is a dermatophytosis usually caused by Microsporum canis, Trichophyton \nrubrum, or T. mentagrophytes—all of which are varieties of fungi.  Fungi thrive in dark, \ndamp conditions—such as, for example, a foot/ankle encased in a wet boot. \n \n \n3\nThis record provides in that Claimant is to apply the medication to “the affected \nareas  on  the  neck.”    However, the  word  “neck”  is  stricken  in  one  of  these  two \ninstructions, and the word “leg” is handwritten in its place.  Claimant’s testimony was \nthat she did not do this edit.  She surmised that the reason for this is that she has also \nhad  a  shoulder  injury.    But  this  makes  no  sense;  her  shoulder  injury  was  not \ndermatological in nature. \n\nGATEWOOD – H500803 \n \n13 \n For Claimant’s tinea corporis to constitute an occupational disease under the \nArkansas Workers’ Compensation Act, it must be a disease that resulted in disability or \ndeath and  arose out of and in the course of Claimant’s employment.  The evidence at \nbar establishes these elements.  Claimant’s testimony, which I credit, was that her work \nconditions  included  her  boots—which  were  a  part  of  her  work attire, and  which \nRespondent  Trinity largely provided funding  for—becoming wet  at  work  due  to  their \nbeing  submerged  in  standing  water.    The  water  accumulated  due  to  rainwater  leaking \ninto  the  building  where  she  worked.    Claimant  has  shown  by  a  preponderance  of  the \nevidence  that  there  is  a  causal  connection  between  her  job  at  Trinity  and  her  tinea \ncorporis. \n However,  Claimant  has  one  more  hurdle  to  clear.    In  setting  parameters \nconcerning such a claim as the one at hand, the statute further reads: \nAn employer shall not be liable for any compensation for an occupational \ndisease unless . . . [t]he disease is due to the nature of an employment in \nwhich  the  hazards  of  the  disease  actually  exist  and  are  characteristic \nthereof and peculiar to the trade, occupation, process, or employment and \nis  actually  incurred  in  his  or  her  employment.    This  includes  any  disease \ndue  to  or  attributable  to  exposure  to  or  contact  with  any  radioactive \nmaterial by an employee in the course of his or her employment[.] \n \nArk.   Code   Ann. §   11-9-601(g)(1)(A)   (Repl.   2012).      An   occupational   disease   is \ncharacteristic  of  an  occupation,  process  or  employment  where  there  is  a  recognizable \nlink  between  the  nature  of  the  job  performed  and  an  increased  risk  in  contracting  the \noccupational disease in question.  Sanyo Mfg. Corp. v. Leisure, 12 Ark. App. 274, 675 \nS.W.2d 841 (1984).  Such diseases are generally gradual rather than sudden in onset.  \nHancock v. Modern Indus. Laundry, 46 Ark. App. 186, 878 S.W.2d 416 (1994). \n\nGATEWOOD – H500803 \n \n14 \n Is  tinea  corporis,  or  ringworm,  characteristic  of  the  job  that  Claimant  held  at \nRespondent Trinity?  In a word, yes.  It was recognized that there was a problem among \nthe  employees  in  the  vicinity  of  Claimant’s workstation having  wet  footwear  and  its \nattendant  problems  due  to  the  standing  water.    This  is  illustrated  by  Claimant’s \ntestimony—which, again, I credit—that co-workers advised her to deal with the problem \nby treating her feet with a solution of Epsom salts before re-donning her boots “[s]o that \nshe would dry them [her feet] out.” \n The   fact   that the   general   public   might   contract   tinea   corporis   does   not \nautomatically  bar  it  as  an  occupational  disease  under  §  11-9-601(e)(3).   Instead,  the \ntest is whether the nature of Claimant’s employment exposed her to a greater risk of the \ndisease than the risk posed to the general public or to workers in other jobs.  See Sanyo \nMfg.  Corp.,  supra.  Clearly, Claimant’s risk of getting this particular type of ringworm \nwas greater than those other groups.  Thus, this particular provision in the Act does not \nprevent her from prevailing here. \n The evidence establishes that Claimant developed tinea corporis from her job at \nRespondent  Trinity,  and  it—due  to  the  condition  of  her  work  boots  made  wet  by \nworkplace conditions—spread to her legs.  In sum, she has proven by a preponderance \nof the evidence that she sustained a compensable occupational disease in the form of a \nfungal infection that has affected her lower extremities. \n\nGATEWOOD – H500803 \n \n15 \n B. Reasonable and Necessary Treatment \n Introduction.    Claimant  has  alleged  that  she  is  entitled  to  reasonable  and \nnecessary medical treatment in connection with compensable lower extremity injuries. \n Standards.    Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \n\nGATEWOOD – H500803 \n \n16 \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.  I find that Claimant has proven by a preponderance of the evidence \nthat she is entitled to reasonable and necessary medical treatment of her compensable \noccupational  disease.  Moreover,  I  have  reviewed  her  treatment  records  that  are  in \nevidence, and I find that she has proven by a preponderance of the evidence that all of \nthe treatment of it that is in evidence was reasonable and necessary. \nC. Temporary Total Disability \n Introduction.    Claimant  has  also  alleged  that  she  is  entitled  to  temporary  total \ndisability benefits as a result of her compensable occupational disease. \n Standards.    The disease  has  affected Claimant’s lower extremities,  and  is  thus \nscheduled in nature.  See Ark. Code Ann. § 11-9-521(a)(4) (Repl. 2012).  An employee \nwho has  sustained a  compensable  scheduled  injury is  entitled  to  temporary  total \ndisability compensation “during the healing period or until the employee returns to work, \nwhichever occurs first . . . .”  Id. § 11-9-521(a).  See Wheeler Const. Co. v. Armstrong, \n73 Ark. App. 146, 41 S.W.3d 822 (2001).  The healing period ends when the underlying \ncondition  causing  the  disability  has  become  stable  and  nothing  further  in  the  way  of \ntreatment will improve that condition.  Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 \nS.W.2d 582 (1982). \n Claimant  must  prove  his  entitlement  to  temporary  total  disability  benefits  by  a \npreponderance of the evidence.  Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012).  Also, a \n\nGATEWOOD – H500803 \n \n17 \nclaimant must demonstrate that the disability lasted more than seven days.  Id. § 11-9-\n501(a)(1). \n Evidence.  The following exchange occurred while Claimant was on the witness \nstand: \nQ. Let  me  switch  gears  here  and  talk  to  you  about  your  claim  for \ntemporary  total  disability  benefits.    Ms.  Gatewood,  in  order  to \nqualify  for  what  are  called  temporary  total  disability  benefits—and \nthat’s  provided  that  I  find  that  you  suffered  what’s  called  a \n“compensable  injury,”  and  that’s  an  injury  that  entitles  you  to \nworkers’ compensation benefits.  The body parts you’re claim injury \nto are to your legs. \n \nA. Yes, sir. \n \nQ. Your  left  and  right  lower  extremities  [are]  what  we  call  [them].  \nThat’s what’s called a scheduled injury.  And what that means is \nthey’re actually body parts that are listed in our statute.  But the \nlegal standard that entitles you to workers’ compensation benefits is \nthat you had to have been off work due to these injuries you’re \nclaiming and you didn’t go back to work.  My question to you [is] \nthis.  Were you off work because of this condition you’re claim you \nhad on your legs? \n \nA. I was off work at Trinity Rail, but not at—I could go to any job and \nwork. \n \nQ. You could go to any job? \n \nA. Yes, sir. \n \nQ. Okay.  Was the time period that you were working at Trinity, which \nagain,  it  was  from  June  28  of  2023  to  June  4  of  2024,  were  you \never off work because of your legs? \n \nA. Just call in.  Just being out from work, just from— \n \nQ. How much time are we talking about?  You got to give me dates. \n \n\nGATEWOOD – H500803 \n \n18 \nA. Oh.  I don’t have the dates.  I don’t—but every day that I called in, it \nwas for my legs.  It was for— \n \nQ. Do you have any idea how much you were off for? \n \nA. We have ten points and I used all my points on that.  So then days, \nmore than ten days. \n \nQ. But you don’t have dates or anything? \n \nA. No, sir. \n \nQ. Okay.  You were terminated, you said, on June 4 of 2024? \n \nA. Yes, sir. \n \nQ. Were you still going to work? \n \nA. Yes, sir. \n \n Claimant  acknowledged  that  her  medical  records  do  not  reflect  that  she  was \ntaken off work.  After her termination, she was able to obtain a position at Wal-Mart. \n Later, on cross-examination, she agreed that when she went for treatment for her \nlegs  on  June  4,  2024,  the  person  who  treated  her  wrote  that  she  could  “work  as \ntolerated  without  any  restrictions.”    However,  it  was  Claimant’s  belief  that  this \nreferenced the shoulder injury that was also being treated at that appointment. \n It  was  Claimant's  testimony that her  skin  condition  rendered  her  unable  to  work \nbetween  June  and  August  of  2024  because  she  could  not  wear  jeans.    She  added:  \n“Like, that’s the reason why I couldn’t work at Trinity no more because I had to wear \njeans.”    However,  she  ultimately  acknowledged  that  she  was  terminated  from  her \nposition  there  on  June  4, 2024, due  to  the  excessive  number  of  points  she  had \n\nGATEWOOD – H500803 \n \n19 \naccumulated.   She  denied  that  her  termination  was  due  to  a  positive  drug  test,  even \nthough she admitted that her drug screen was positive for marijuana. \n Discussion.    While  Claimant  claims  that  she  had  sporadic  absences  from  her \nposition  at  Trinity  due  to  her  compensable  skin  condition,  she  was  not  taken  off  work.  \nThis  is  shown  by  the  fact  that  she  did  not  seek  treatment  until  the  date  of  her \ntermination, June 4, 2024.  Moreover, while she numbers these absences as being ten \nor more, she cannot identify when they occurred.  Finally, as she admitted, her medical \nrecords do not show that she was in fact taken off work because of the condition of the \nskin on her legs; and she further admitted that on the date of her termination, she was \ncapable  of  working  elsewhere.  Based  on  the  foregoing,  I  am  unable  to  find  that \nClaimant has met her burden of proving that she is entitled to temporary total disability \nbenefits for any period. \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid \nin a lump sum without discount, and this award shall earn interest at the legal rate until \npaid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First  State \nBank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":31710,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H500803 VERLENCIA D. GATEWOOD, EMPLOYEE CLAIMANT TRINITY RAIL MAINTENANCE SVCS., EMPLOYER RESPONDENT ACE AMERICAN INS. CO., CARRIER RESPONDENT OPINION FILED APRIL 1, 2026 Hearing before Chief Administrative Law Judge O. Milton Fine II on February 20, 2026, in...","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["back","knee","ankle","neck","shoulder"],"fetchedAt":"2026-05-19T22:29:50.895Z"},{"id":"alj-H401671-2026-04-01","awccNumber":"H401671","decisionDate":"2026-04-01","decisionYear":2026,"opinionType":"alj","claimantName":"Betty Mueller","employerName":"Flippin School District","title":"MUELLER VS. FLIPPIN SCHOOL DISTRICT AWCC# H401671 & H402846 April 01, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MUELLER_BETTY_H401671-H402846_20260401.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MUELLER_BETTY_H401671-H402846_20260401.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H401671 & H402846 \n \nBETTY MUELLER, EMPLOYEE      CLAIMANT \n \nVS. \n \nFLIPPIN SCHOOL DISTRICT, EMPLOYER    RESPONDENT  \n \nARKANSAS SCHOOL BOARDS ASSOCIATION,     \nINSURANCE CARRIER/TPA      RESPONDENT  \n      \n \nOPINION FILED APRIL 1, 2026 \n \nHearing  before  Administrative  Law  Judge, Gregory  K.  Stewart on  the 19\nTH\n day  of \nFebruary 2026,  in Harrison,  Arkansas. Opinion  issued  by  Administrative  Law  Judge \nJames D. Kennedy who was reassigned to this matter. \n \nClaimant  is represented  by Frederick  Rick  Spencer,  Attorney  at  Law, Mountain  Home, \nArkansas. \n \nRespondents are represented by James A. Arnold, Attorney at Law, Ft. Smith, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \nThe hearing was originally heard by Administrative Law Judge Gregory K. Stewart, \nbut  the  decision  and  opinion  were reassigned  to  Administrative  Law  Judge  James  D. \nKennedy, after the well-earned retirement of Judge Stewart. The hearing was conducted \non the 19\nth\n day of February 2026, to determine the issue of temporary total disability (TTD) \nfrom July 23, 2025, through February 11, 2026, along with the issues of penalty, interest, \nand attorney fees. All additional issues were reserved. The parties stipulated and agreed \nthat the Claimant suffered a compensable injury to her right shoulder on December 14, \n2023,  and  April  2,  2024, and  earned a  sufficient  wage  entitling  her  to  a  weekly \ncompensation rate of $372.00 for TTD benefits. \n\nMueller – H401671 & H402846 \n2 \n \n The claimant contends that she was released to return to work by Dr. Kirk Reynolds \non August 25, 2025, with light duty restrictions, and the respondent employer was able to \nprovide  light  duty  to  the claimant  if  she  was  still  an  employee.  Since  she  was  not  an \nemployee, the respondents denied additional TTD benefits since they would have been \nable to provide light duty. The claimant contends she is entitled to TTD since she had not \nreached MMI, is still under the care of Dr. Kirk Reynolds, and is not employed and entitled \nto this benefit.  Additionally, the claimant contends that since the Respondent is denying \nTTD benefits, she is entitled to penalties, interest, and attorney fees. \n The respondents contend “without waiving other defenses” that the claimant is not \nentitled to TTD after the date she was released to return to work with restrictions.  \nA copy of  the  Pre-hearing order was marked “Commission Exhibit 1” and made \npart of the record without objection. Two witnesses testified, Diane Mueller, the claimant, \nand Kelvin Hudson, for the respondent. From a review of the record as a whole, to include \nmedical reports and other matters properly before the Commission, the following findings \nof fact and conclusions of law are made in accordance with Ark. Code Ann. 11-9-704. \n \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That an employer/employee relationship existed on December 14, 2023, and \non April 2, 2024, when the Claimant sustained compensable injuries to her right \nshoulder. \n\nMueller – H401671 & H402846 \n3 \n \n3. That the Claimant earned sufficient wages to entitle her to compensation at the \nweekly rate of $372.00 for TTD.    \n4. That the claimant has failed to satisfy the required burden of proof to prove by \na preponderance of the evidence that she is entitled to TTD from July 23, 2025, \nthrough February 11, 2026. \n5. That, consequently, all other remaining issues are moot. \n6. If  not  already  paid,  the  respondents are ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n The  Pre-hearing  Order was admitted  into  the  record  without  objection.   The \nclamant submitted two exhibits with the first exhibit of medical records consisted of return-\nto-work slips. The claimant’s second exhibit consisted of non-medical records consisting \nof a check register report. Both exhibits were admitted into the record without objection. \nThe respondents  also  submitted  two  exhibits  with  the  first  exhibit  consisting  of  twenty \npages  of  medical  records.  The respondents’ second  exhibit  consisted  of  non-medical \nrecords which consisted of a retirement letter. Both exhibits were also admitted without \nobjection. The parties also submitted a joint exhibit which consisted of the deposition of \nthe claimant.  \n The Claimant, Betty Diane Mueller, testified that she was fifty-nine at the time of \nthe hearing. She had obtained her tenth-grade education, had never obtained her GED, \nand worked in the kitchen for the Flippin School District, where they fed up to 500 “kids” \nduring three different periods. The Claimant further testified that they were understaffed \n\nMueller – H401671 & H402846 \n4 \n \nat the time of her initial injury and the injury occurred while she was picking up cartons of \nmilk weighing more than 50 pounds when she injured her right shoulder. She testified that \nshe is right hand dominant. When asked if she was able to currently use her right hand, \nshe responded “Not like I used to; no sir.” “I can’t reach – like high up the cabinets and \nget stuff.  It kind of catches, and I will have to get it back down, you know still.” She went \non and stated she was injured in December of 2023. (Tr. 6 - 11) She was injured while \nlifting the milk for the preschool and the elementary students to send to their classrooms. \nShe felt something at the time and told her supervisor or the person that was over her \nthat she had done something to her arm.  \nShe went on to testify that after returning from the Christmas holidays, they were \nstill short staffed, and she would then pick up the milk with her left arm, with the help of a \nco-worker. Her symptoms became worse. She testified her pain was bad during the day \nbut  worse  during  the  night on  days she  was  working.  She  took medications,  either \nprescription or non-prescription, which caused her to be sleepy and drowsy. (Tr. 12, 14) \nAfter returning in January form the holidays, she stated that the respondent moved a lady \nto move the milk, but she was then told that she would be required to substitute for the \nlady that was now doing her job with the milk. She questioned her supervisor on how she \nwas going to open cans of fruit with her left hand, dump them over into pans, and then \npick up the six-inch and a half pans. She went on to testify that she could not do the new \njob  without  using  her  right  arm  to  get  it  from  the  table  to  the  little  cart and over  to  the \ncooler and place it inside the cooler. The claimant went on to say that she told her first \nand  second  doctor about  her  problems. She  admitted that  the respondent  sent her for \nanother shoulder surgery after her second injury. In regard to her second injury, she was \n\nMueller – H401671 & H402846 \n5 \n \nstanding at the computer desk where she would scan the children’s nutrition cards and \nwas asked to get some paper products when her foot caught on something and she fell \non the milk box on her right side, and she instinctively used her right arm to reach out and \nnoticed another injury. She had to wait for a year and a half for the first surgery with Dr. \nRauls. (Tr. 15 – 17) She went on to state that the first surgery was denied and she then \ntalked to another supervisor. She eventually went to MedExpress due to her pain being \nan eight to a ten. She was still trying to work and to keep up with the lines by using her \nleft hand to pick up the “little scanner” if the students had their card, and if they didn’t, she \nwould  have  to  put  their  names  on  the  screen  to  show  that  they  went  through  the  line. \nUsing the screen was a slow process and the meal lines would back up and kids would \nwalk out. Students only had 20 to 25 minutes to eat. (Tr. 18 - 20) She went on to testify \nthat prior to her first injury, there were no backing up of the lines and after the first surgery, \nthere was a long backup of the lines. She felt that the backup was due to her having to \nuse her left hand, which caused frustration with the “school supervision” and the “school \npeople.” She was told to keep the lines going because they were there to feed the kids. \n(Tr. 21) \nAfter her second injury, which reinjured her right shoulder per her testimony, she \nwas told not to go back to Dr. Rauls because she needed a second opinion and was sent \nto  Dr.  Kirk  Reynolds  who  performed  the  second  surgery.  The  second  surgery  was \nperformed quicker than the first, and she was then given a return to work slip that provided \nthat she should be in a sling at all times. That is when she knew she couldn’t go back to \nwork. “I couldn’t keep up with, you know, trying to get it done.” She felt that the restrictions \nwere not followed, and she could not do the job without her right arm. In regard to her \n\nMueller – H401671 & H402846 \n6 \n \nresignation, she stated “The reason I, you know, resigned is because after workmen’s \ncomp denied me and I called my manager and told her and that kind of, you know, put \nme in a state like, ‘Oh, my gosh, what am I going to do now?’” (Tr. 22 – 24)    \nShe went on to testify that the respondent employer sent out the contracts for the \nnext year and she returned to MedExpress who set her up for therapy, but it was never \napproved  by  worker’s  compensation.  She  attempted  to  use  her  personal  insurance \nthrough the school, which was also denied, and she then went to her primary doctor, Dr. \nLance Lincoln, who had originally made the referral to Dr. Rauls. (Tr. 24) \nIn an attempt to clarify the testimony, the claimant testified that after the second \ninjury, she received a contract in the mail in March or May for the following school year \nand was given a return to work by her treating doctor. (Tr. 25) She didn’t attempt to go \nback to work after Dr. Stallings provided a return to work slip that stated she could return \nto work while wearing a sling because she felt that “I Couldn’t do my job” and that was \nwhy  she  resigned. She was  then  specifically  asked  if  she  was  given a  full  release  on \nFebruary  11\nth\n, 2026, that provided “If the employer is unable to accommodate these \nrestrictions, then it is the responsibility of the employer to keep the patient off work” and \nshe responded “Uh-huh.” (Tr. 26) She had talked to her doctor and her nurse practitioner \nabout her frustrations with her work accommodations. (Tr. 27) \nAt this point the Court interjected and attempted to clarify the testimony and asked \nif the Claimant was only asking for benefits up through the date of February 11, 2025, \nand the response from the Claimant’s attorney was yes, but that we would ask for benefits \nlater  if  she was  still  being  treated.  Claimant  then  went  on  to  testify  that  she was \n\nMueller – H401671 & H402846 \n7 \n \nexperiencing pain in her right shoulder that was maybe a three or four, “but it’s not like \nevery day, you know. Some days are good, some days are bad.” (Tr. 29, 30) \nClaimant stated that she could still not sleep on her side because she would wake \nup and just holler out at night. After her surgery, her husband would have to wash her \nhair and put her shirt on. She was then asked about the use of her left shoulder and if it \nresulted  in  pain  due  to  over-use  and  she  responded  that  she  had  a  limit  on  the  left \nshoulder and would receive trigger points and her husband would massage her shoulder. \nShe was then specifically asked if she was talking about the left arm as “This Arm” and \nshe responded “Right. Ten times with the left and twenty with the right”. (Tr. 31)      \n Under cross examination, the Claimant admitted that she had a work-related injury \nto her left shoulder while working in Mississippi and that she had surgery for it. As the \nresult of the Mississippi injury, she had a lifting restriction of 20 pounds for her left arm. \n(Tr. 33) She also admitted that when she went to work for the Flippin School District, she \ninformed the people that she had a 20-pound lifting limit for her left arm. She was then \nasked if the Respondent employer was already providing an accommodating restriction \ndue to her prior injury and she responded “What – they unloaded the trucks, I mean, put \nthe stuff up for everybody.” “It wasn’t just what, you know, I had to do.” (Tr. 34) She also \nadmitted working at the school kitchen until the injury in December of 2023, that she was \nlifting the milk, juice, and fruit, and getting it ready for in-classroom breakfast and doing \nthe  computer,  and  she  injured  herself  while  lifting  the  crates  the  first  time.  She  was \nspecifically  asked  after  returning  to  work  after  the  Christmas  break,  and  reporting  her \nproblem, if she didn’t have to go back to lifting the trays anymore, and she responded, \n“Some days I would have to, but I would have someone with me, you know, helping me.” \n\nMueller – H401671 & H402846 \n8 \n \n(Tr. 35) She admitted that they were already accommodating her restrictions to her right \narm. She also admitted that she did not have to do the heavier parts of her job and had \nsomeone help her but stated she then had to do their job. In regard to her computer work, \nshe  stated  she  already  was  doing  it.    She  also  agreed  that  in  her  deposition, \napproximately a year and a half to two years earlier, that she had admitted the school had \nworked with her to make her job easier. She admitted she continued to work and was not \nusing her arm at work. She also admitted that she had picked up a skillet of cornbread \nwith her right hand while cooking at home, and realized “Well, that’s why I shouldn’t be \nusing my right arm.” (Tr. 36) The claimant also admitted that she had reported that she \nhad irritated her arm while lifting a skillet of cornbread at home. She also admitted that no \none told her that she had to use her right arm, but stated she would have to use it a little \nbit. She also admitted that she suffered her second injury while working at the computer \nand  that  she  was  slower  because  she  was  unable to  use  her  right arm, and  the \nrespondent was aware of this. She did add however that they were receiving calls from \nthe teachers stating that the line was not moving fast enough. She also admitted that no \none from the respondent instructed her to use her right arm but added “You know, but I \njust had to do, you know, what I could do to accomplish what we needed to get done.” \nClaimant was also asked if she had already resigned when her arm was placed in the \nsling, and she responded “I am not sure when I seen – I think her name was Dr. Peterson \n(sic). She was the nurse practitioner at my primary doctor. I can’t remember when I saw \nher, and she put me in the sling.”  The Claimant did agree that she resigned in May of 24, \nat the end of the school year. She also admitted that she was still working at the school \n\nMueller – H401671 & H402846 \n9 \n \nwhen she resigned, and that the Respondent employer was honoring her restriction for \nnot using her right arm. (Tr. 37 – 39) \n In regard to the second surgery when she was released from being completely off \nwork  for  the  surgery  to  being  released  to  one-arm  duty, the claimant  agreed  that \neverything was eventually taken care of by workers’ compensation. (Tr. 40) She  also \nagreed that even after she was released to return to work with the restrictions, her medical \ntreatment continued to be taken care of by workers’ comp as far as she knew. She also \nagreed that she  had  been  released  by  Katherine  Stallings, Dr.  Reynolds  Physician \nAssistant. The Claimant was then asked the following question: \nQ: I am a little – the document says you are “released to full \nduty.” No restrictions effective February 11, 2026.” So what \nrestrictions  is  she  talking  about  it’s  the  employer’s \nresponsibility to keep the patient off work when you don’t have \nany restrictions at all? Do you know what she’s even talking \nabout? \n \nA: I have no idea.    \n \nClaimant went on to state that she was still doing therapy and still weak in the arm. (Tr. \n41) At  this  point,  the  Respondents  stated  that  they  had  no  further  questions  and  the \nClaimant passed the witness. \n The respondents then called  Kevin  Hudson,  who testified that  he was  the \nSuperintendent of the Flippin School District and had been in that position for ten years \nand was  in  his 33\nrd\n year  in  education.  Mr.  Hudson  explained  that  the  policy  of  the \nrespondent employer for providing work for workers’ compensation employees was that \nif someone needed accommodations “yes, we accommodate.” “As a matter of fact, we \nare accommodating someone right now in the same way” and that person works in the \nkitchen and can only use one arm.” (Tr. 43, 44) \n\nMueller – H401671 & H402846 \n10 \n \n Under cross examination, Mr. Hudson admitted that he had been in the courtroom \nthe entire time, and that everything the claimant had said was true and correct to the best \nof his knowledge and belief. (Tr. 45)  \nAt this point the hearing was concluded.      \n   The Claimant’s medical exhibits provided a return-to-work slip dated July 23, 2025, \nfrom OrthoArkansas and Katherine Stallings, PA, PASUP. The slip provided that Claimant \ncould  return  to  work/school  on  July  23,  2025,  with  restrictions  and  no  use  of her  right \nextremity, which must be in a sling at all times. (Cl. Ex. 1, P.1) A second return to work \nslip dated August 25, 2025, from OrthoArkansas and signed by Dr. Reynolds, provided \nthat the Claimant could return to work on August 25, 2025, with the following restrictions: \nno lifting, pushing, pulling, and with no work above shoulder level. (Cl. Ex. 1, P. 2) A third \nwork slip dated October 27, 2025, and again signed by Dr. Reynolds, provided that the \nclaimant could return to work on October 27, 2025, again with no lifting, pushing, pulling \nand  no  work  above  shoulder  level.  (Cl.  Ex. 1,  P.  3)  A  third  return  to  work  slip  dated \nDecember 8, 2025, and again signed by Dr. Reynolds, provided the claimant could return \nto work on December 8, 2025, with a 15-pound lifting limit. (Cl. Ex. 1, P. 4) The fourth \nreturn  to  work  slip  dated  February  11,  2026,  and  signed  by  Katherine  Stallings,  PA, \nPASUP, provided the claimant could return to work full duty with no restrictions, but then \nadded  that if the  employer  is  unable  to  accommodate  these  restrictions,  then  it  is  the \nresponsibility of the employer to keep the patient off of work. (Cl. Ex. 1, P. 5) \n Claimant’s  Non-Medical  Exhibit  consisted  of  the  Temporary  Total  Disability \npayments to the Claimant from the date of October 16, 2024, through the date of July 21, \n2025, for the total payment of $16,716.00. (Cl. Ex. 2, P. 1, 2) \n\nMueller – H401671 & H402846 \n11 \n \n The  Respondent’s  Medical  Exhibit  consisted  of 20  pages.    The  report  from \nOrthoArkansas  dated  July  10,  2025,  provided that the  Claimant  was  diagnosed  with  a \nright  rotator  cuff  tear with  right  shoulder  postoperative  arthrofibrosis  and  right  shoulder \nsynovitis and a right shoulder arthroscopy that had been performed. (Resp. Ex. 1, P. 1 – \n3) A follow up report from OrthoArkansas dated July 23, 2025, provided it was the first \npostoperative  visit following her right  shoulder arthroscopy  with  a  rotator  cuff  repair. \nRegarding her work, the report provided the claimant would remain on modified duty, with \nher right upper extremity remaining in a sling at all times. (Resp. Ex. 1, P. 4 – 7)   \nClaimant  again  returned  to  OrthoArkansas  on  August  25,  2025,  for  a  follow  up \nevaluation. This report provided that she complained of aching, shooting, and throbbing \npain that rated a four out of a ten. She could stop using her sling, continue her physical \ntherapy, and could return to work with modified duty with no lifting, pushing, or pulling of \nthe right extremity and with no work above the shoulder level. (Resp.1, P. 8 -11) \nThe Claimant’s next visit to OrthoArkansas per the record was on October 27, \n2025.  The  report  provided  the  Claimant was  3.5  months  status  post  right  shoulder \narthroscopy. She would continue physical therapy and could return to work on modified \nduty with a five-pound pushing and lifting limit with her right upper extremity and with no \nwork above the right shoulder level. She had not reached MMI. (Resp. 1, P. 12 – 15)  \nThe Claimant again returned to OrthoArkansas on December 8, 2025. This report \nprovided that the Claimant was originally seen for a second opinion. Her original injury \noccurred in April of 2024, with an orthoscopic surgery involving a distal clavicle excision, \na  subacromial  decompression,  and  a  labral  debridement.  Unfortunately,  she  had \npersistent pain and weakness, and an MRI scan demonstrated a full-thickness rotator cuff \n\nMueller – H401671 & H402846 \n12 \n \ntear and on July 10, 2025, a right shoulder arthroscopy was performed to repair the rotator \ncuff repair. She was allowed to return to work with a five-pound lifting, pushing, and pulling \nrestriction. (Resp. Ex. 1, P. 16 – 19) The final report from OrthoArkansas dated December \n8, 2025, provided that the Claimant could return to work on December 8, 2025, with a 15-\npound lifting limit. (Resp. Ex. 1, P. 20) \nRespondents   Non-Medical  exhibit  consisted  of  Claimant’s  retirement  letter \naddressed to whom it may concern and stating that the Claimant was resigning from the \nFlippin School District at the end of the 2023 – 2024 school year. (Resp. Ex. 2, P. 1) \nThe final Joint Exhibit consisted of the deposition of the Claimant taken on June \n12\nth\n, 2024. The Claimant admitted she had suffered a left shoulder injury that resulted in \na workers’ compensation claim and left shoulder surgery in approximately 2014 and again \nin 2015 on the same shoulder. She also admitted that she had a weight limit of 20 pounds \nregarding her left shoulder. In regard to her current respondent employer, she testified \nshe  suffered  an  injury  in  December  of  2023,  and  again  in  early  April  of  2024, which \ninvolved her right shoulder. She started having right shoulder trouble in the 23 – 24 school \nyear due to having to load a hundred and eight-eight juices, milks, and cups of fruit every \nmorning. She lifted items over 20 pounds and would lift it more with her right arm. She \nwas picking up a crate of milk when she first noticed a problem with her right shoulder \nwhich popped, burned, and happened all at once. She initially did not go to the doctor, \nand returned to work following the Christmas break, but testified she was not lifting. In \nMarch, while at home, she reached to pick up a “little-bitty skillet” and her shoulder started \nhurting. The claimant went on to testify that she had been hurting since December and \nfelt something was wrong and it was gradually getting worse. \n\nMueller – H401671 & H402846 \n13 \n \nFrom  December  14\nth\n to  March,  “There  was  no  lifting.  I  was  on  the  nutrition \ncomputer, you know, scanning the kids in, and that’s about all I did, you know.” She \ntestified that  she  did  not ask  the  respondent  to  send  her  to a doctor.  She  went  to \nMedExpress on her own. She talked to her supervisor by text on February 18\nth\n, in regard \nto her right shoulder problems, but the text was overlooked. She told MedExpress she \ninjured her right shoulder while at work and was referred to therapy three times a week. \nShe was then told by the school to contact workers’ compensation and never received \nthe therapy.  \nAfter  MedExpress,  she  saw  Kim  Peters,  the  nurse  practitioner working with  her \nprimary  care  doctor,  Dr.  Lincoln. She  admitted  continuing  to  work  after  going  to \nMedExpress.  Kim  Peterson  placed her  in  a  sling  and  told  her  no  lifting  heavier  than  a \ncoffee cup. “And from there, you know, I just, you know, did the computer and all, because \nMartha told me no lifting, nothing.” \nIn April, her foot caught the nutrition computer at work which caused her to fall over \nthe milk box where she used her right arm to catch herself in the fall, which made her \nproblem worse. She woke on a Thursday morning after the event on a Tuesday with her \narm swollen and she still went to work. When she walked into work, she was told she did \nnot  look good, and  she then told  them  about  her  shoulder.  She  was then sent  to  the \nemergency  room where she  received  an  x-ray.  She  did not receive  a  referral  to  an \northopedic doctor at that time. She testified that Dr. Kim ordered an MRI back in March \nand it was denied by her insurance company. Dr. Lincoln then referred her to Dr. Rauls \nat Twin Lakes Ortho who recommended that she have surgery. (Joint Exhibit)      \n \n\nMueller – H401671 & H402846 \n14 \n \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn  determining  whether  the  claimant has  sustained her burden  of  proof,  the \nCommission shall weigh the evidence impartially, without giving the benefit of the doubt \nto either party. A.C.A. 11-9-704. Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d \n521  (1989).  Further,  the  Commission  has  the  duty  to  translate  evidence  on  all  issues \nbefore it into findings of fact. Weldon v. Pierce Brothers Construction Co., 54 Ark. App. \n344, 925 S.W.2d 179 (1996). \nIn   the   present  matter, the   parties   stipulated   that   the   claimant   suffered  a \ncompensable injury to her right shoulder on December 14, 2023, and again on April 2, \n2024. Although  the  testimony  was  somewhat  confusing  at  times,  after  a  review  of  the \ntestimony  of  the  witnesses and the evidence entered  into the  record without  objection, \nincluding the  deposition  of  the  claimant,  it  is found that the  evidence  provided that the \nclaimant had previously injured her left shoulder in a work-related accident with a different \nemployer  in  a  different  state  a  few  years prior, and  had  been  restricted  to  lift only 20 \npounds with her left arm. The claimant testified that due to this restriction, which is found \nto be believable, she had a tendency to favor her left arm and predominantly use her right \narm, which also happened to be her predominant hand and arm. These actions would be \ntypical  for  a  right-hand  dominant  person,  prior  to her suffering a right  shoulder work-\nrelated  compensable  injury  with  the  Flippin School  District.  After the occurrence of her \ncompensable right  shoulder injuries while  working  for  the respondent,  the  claimant \ntestified in her deposition that from the dates of December 14\nth\n to March, “There was no \nlifting. I was on the nutrition computer, you know, scanning the kids in, and that’s about \nall I did, you know.” The claimant also testified that after the Christmas holidays she was \n\nMueller – H401671 & H402846 \n15 \n \nno longer required to move the milk, juice, and fruit, which appeared to be the cause of \nher  right  shoulder  injury. Another  employee replaced her in performing that activity. \nHowever, claimant stated that she was then required to perform the work of the individual \nthat replaced her, and she felt she was slower than the previous employee at that job, \nwhich caused the meal line to move slower resulting in complaints from the teachers. This \ncaused  her  to  feel that  she  was  creating  issues. However  there  appeared  to  be  no \ncomplaints  or  instructions  directed  at  the  claimant  to  speed  up  her  work  from  her \nsupervisors. The Superintendent of the schools testified that it was the policy of the school \nto accommodate workers, and that the school was accommodating a worker with similar \nissues who was unable to use one arm and was currently working in the cafeteria. Before \nthe  end  of  the  2023-2024  school  year,  and  before  renewing  her  contract,  the  claimant \nprovided an undated letter addressed to “Whom it may concern” that she was resigning \nat  the  end  of  the  2023-2024  school  year. The  first  return  to  work  slip  entered  into  the \nrecord by the claimant and dated July 23, 2025, and the first medical report entered into \nthe record by the respondents dated July 10, 2025, were both dated well after the date of \nclaimant’s resignation from her employment. \nA claimant’s testimony is never considered uncontroverted. Nix. V. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a  witness’s \ncredibility and how much weight to accord the person’s testimony is solely  up  to  the \nCommission.  White v. Gregg Agricultural Ent. 72 Ark. App. 309, 37 S.W. 3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts and \nis not required to believe the testimony of any witness. \n\nMueller – H401671 & H402846 \n16 \n \nThe compensable injury to the claimant’s left shoulder is an unscheduled injury. \nAn employee who suffers a compensable unscheduled injury is entitled to temporary total \ndisability compensation for that period within the healing period which she suffered a total \nincapacity to earn wages. Ark. State Hwy & Transportation Dept. v. Breshears, 272 Ark. \n244, 613 S.W. 2d 392 (1981). Claimant’s failure to return to work must be causally related \nto  the  injury. Foster  v.  Tyson  Poultry,  213  Ark.  App.  172,  426  S.W.  3d  563  (2006). \n“Disability”  means  incapacity  because  of  injury  to  earn, in the  same or  any  other \nemployment, the wages which the employee was receiving at the time of the injuries. The \nCommission may consider the claimant’s physical capabilities and evaluate her ability to \nengage in gainful employment. The claimant bears the burden of proving both that she \nremains within her healing period and, in addition, suffers a total incapacity to earn pre-\ninjury wages in the same or other employment. Paalazolo v. Nelms, 46 Ark. App. 130, \n877 S.W.2d 938 (1994) \nTTD benefits  compensate  a  worker  who  cannot  work  during  their  period  of \nrecovery. Here it is found that the claimant voluntarily resigned from her job and position \nat the end of the 2024 school year while being accommodated in her work environment \nfor  her  injuries. Due to these accommodations and the claimant’s work ethic, she was \nclearly engaged in gainful employment at the time of her resignation earning pre-injury \nwages. Although it is not doubted that teachers may have been complaining about slow-\nmoving  lines,  there  was  no  testimony  that  administrators  were making  any  specific \ncomplaints or  demands.  There  appeared  to  be  a  shortage  of  workers  in  the  area. \nAdditionally,   it   is   found   believable   that   the   respondent   employer   is   currently \naccommodating an employee with a similar injury working a similar job. All off work slips \n\nMueller – H401671 & H402846 \n17 \n \nand medical records made part of the record were dated well after the claimant resigned. \nHere,  the  claimant  was  provided  employment  to  earn  the  same  wages that she  was \nearning prior to her work-related injury, when she voluntarily quit her job. TTD benefits \ncompensate  a  worker with  an  unscheduled  injury when  they  cannot  work  at  all  during \ntheir  recovery,  and  here  it  is  clear  that  with  the  accommodations provided  by  the \nrespondent, claimant was able to work at the time of her resignation and it is found that \nthe claimant has failed to satisfy the burden of proof that she is entitled to TTD.    \nAfter reviewing the evidence impartially, and without giving the benefit of the doubt \nto  either  party, it  is found that  the  claimant has failed  to satisfy the  required  burden  of \nproof to prove by a preponderance of the evidence that she is entitled to TTD benefits. \nThat, consequently, all other issues are moot.  If not already paid, the respondents are \nordered to pay for the cost of the transcript forthwith. \nIT IS SO ORDERED. \n          ______________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":32289,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401671 & H402846 BETTY MUELLER, EMPLOYEE CLAIMANT VS. FLIPPIN SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 1, 2026 Hearing before Administrative Law Judge, Gregory K. Stewart ...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["shoulder","back","rotator cuff"],"fetchedAt":"2026-05-19T22:29:52.988Z"},{"id":"alj-H501814-2026-03-31","awccNumber":"H501814","decisionDate":"2026-03-31","decisionYear":2026,"opinionType":"alj","claimantName":"Shawanna Bailey","employerName":"Hino Motors Mfg USA, Inc","title":"BAILEY VS. HINO MOTORS MFG USA, INC. AWCC# H501814 March 31, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Bailey_Shawanna_H501814_20260331.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bailey_Shawanna_H501814_20260331.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H501814 \n \nSHAWANNA BAILEY, \nEMPLOYEE                                                                                                              CLAIMANT \n \nHINO MOTORS MFG USA, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nFIRST LIBERTY INSURANCE CORP., \nCARRIER/TPA                                                                                                    RESPONDENT  \n \n \nOPINION FILED MARCH 31, 2025 \n \nHearing conducted on Friday, March  6,  2026,  before  the  Arkansas  Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant is Pro Se, of West Memphis, Arkansas.  \n \nThe Respondents  were represented by Mr. Zachary  F.  Ryburn,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non October 14, 2025.  A hearing on the motion was conducted on March 6, 2026, in Forrest City, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as a team  member.  The  date  for \nClaimant’s  alleged  injury  was  on March 13,   2025. This   incident   was   reported   to   the \nRespondent/Employer on March 14, 2025. Admitted into evidence was Respondents’ Exhibit 1, \npleadings, consisting of 3 pages, and Commission Ex. 1, pleadings, correspondence, and U.S. Mail \nreturn receipts, consisting of 17 pages, as discussed infra. \n\nBAILEY, AWCC No. H501814 \n \n2 \n \nThe record reflects on April 9, 2025, a Form AR-C was filed by Claimant purporting that \nClaimant sustained an injury to her left shoulder during a work incident. On March 21, 2025,  a \nForm  AR-1 was  filed purporting  that Claimant  was  doing  normal  operation  but  at  a  faster  rate \nresulting in shoulder pain at the end of the workday. On March 27, 2024, a Form AR-2 was filed \ndisputing that Claimant was injured during the course and scope of employment.   \nOn August 8, 2025, Claimant’s counsel filed a Motion to Withdraw as Counsel. The Full \nCommission granted the motion on August 227, 2025. Respondents filed a motion to dismiss on \nOctober 14, 2025, for failure to prosecute. The Claimant was sent, on October 17, 2025, notice of \nthe Motion to Dismiss, via certified and regular U.S. Mail, to her last known address. The certified \nmotion notice was claimed by Claimant as noted by the return of the certified return receipt dated \nOctober  20,  2025. This  notice was  also  sent regular  U.S.  Mail and did not return  to  the \nCommission. The  Claimant  did not respond  to  the  Motion,  in  writing,  as  required. Thus,  in \naccordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice of \nRespondents’ Motion to Dismiss hearing date at her current address of record via the United States \nPostal  Service  (USPS), First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-\nClass Mail, on December 4, 2025. The certified notice was not claimed as noted by the return of \nthe certified letter on January 2, 2026. The hearing notice sent regular First-Class was not returned \nto  the  Commission. The  hearing was  scheduled  for  January  2,  2026.  But  due  to  sickness,  I \ncancelled the hearing.  \nOn January 14, 2026, another Motion to Dismiss hearing notice was sent, and again was \nnot claimed by the Claimant per the return receipt dated January 30, 2026. The notice sent regular \nFirst-Class mail did not return to the Commission. The hearing took place on March 6, 2026. And \nas mentioned before, the Claimant did not show up to the hearing. \n\nBAILEY, AWCC No. H501814 \n \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the March 6, 2026, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice  was not claimed by  Claimant.  The  notice  sent  regular  U.S.  Mail  was not returned  to  the \nCommission.  The  Claimant  is  responsible  for  keeping  the  Commission  apprised  of  her  current \naddress. The Claimant did not do that. Nevertheless, sending notices to the last known address of \n\nBAILEY, AWCC No. H501814 \n \n4 \n \nrecord  is  reasonable. Thus,  I  find  by  the  preponderance  of  the  evidence  that  the  Claimant  did \nreceive reasonable notice of this motion to dismiss hearing.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to  a want of prosecution. The  Claimant filed a Form \nAR-C on April 9, 2025, since then the Claimant has not requested a bona fide full hearing, thus \nfailing to  prosecute  her  claim. Therefore,  I  do  find  by  the  preponderance  of  the  evidence  that \nClaimant  has  failed  to  prosecute  her claim. Thus, Respondents’ Motion to Dismiss should be \ngranted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6556,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H501814 SHAWANNA BAILEY, EMPLOYEE CLAIMANT HINO MOTORS MFG USA, INC., EMPLOYER RESPONDENT FIRST LIBERTY INSURANCE CORP., CARRIER/TPA RESPONDENT OPINION FILED MARCH 31, 2025 Hearing conducted on Friday, March 6, 2026, before the Arkansas Workers’ Compensation ...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:31:26.899Z"},{"id":"alj-H405537-2026-03-31","awccNumber":"H405537","decisionDate":"2026-03-31","decisionYear":2026,"opinionType":"alj","claimantName":"Rachel Troedel","employerName":"Uams","title":"HANELINE-TROEDEL VS. UAMS AWCC# H405537 March 31, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TROEDEL_RACHEL_H405537_20260331.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TROEDEL_RACHEL_H405537_20260331.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                             CLAIM NO.: H405537 \n  \nRACHEL HANELINE-TROEDEL,  \nEMPLOYEE                                                                                         CLAIMANT \n \nUAMS,   \nEMPLOYER                                                                                                            RESPONDENT    \n                                        \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/TPA                                                                                                          RESPONDENT  \n \n \nOPINION FILED MARCH 31, 2026 \n             \nHearing held before Administrative Law Judge CHANDRA L. BLACK, in Little Rock, Pulaski \nCounty, Arkansas. \n \nClaimant represented  by the  HONORABLE  MARK  ALAN  PEOPLES, Attorney  at  Law, Little \nRock, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES MCLEMORE, Attorney at Law, Little \nRock, Arkansas. \n \n          STATEMENT OF THE CASE \nOn January 21,  2026, the  above-captioned  claim  came  on  for a hearing in Little  Rock, \nArkansas.  Previously,  on December  10,  2025,  I  conducted  a pre-hearing  telephone  conference \nwith the parties and entered a Pre-hearing Order that same day following our telephone conference.  \nSaid  order was admitted into evidence along with the parties’ pre-hearing  information  filings \nwithout objection and marked as Commission’s Exhibit 1. \nStipulations \n During the pre-hearing telephone conference, and/or at the hearing, the parties agreed to \nthe following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n \n\nHaneline-Troedel – H405537 \n2 \n \n2. The Claimant reported on January 5, 2024, that she had sustained work-related injuries \nto her right wrist and index finger on December 18, 2023. \n \n3. The employee-employer-insurance carrier relationship existed among the parties at all \nrelevant times, including on or about December 18, 2023.  At that time, the Claimant \nsustained admittedly compensable injuries to her right wrist and index finger.\n1\n \n \n4. That the Claimant’s average weekly wage on December 18, 2023, was $1,224.96.  This \namount entitles her to weekly compensation rates of $817.00 and $613.00, respectively \nfor temporary total disability/TTD and permanent partial disability/PPD benefits. \n \n5. All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nCommission Act. \n \n  Issues \n \nBy agreement of the parties, the issues to be litigated at the hearing were as follows:  \n1. Whether the Claimant is entitled to 18.3 weeks of permanent partial disability benefits \nwhich amounts to a 10% impairment rating to her right wrist. \n  \n2. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee on any \nindemnity benefits awarded herein.  \n \nContentions \n \n The Claimant’s and the Respondents’ contentions are outlined below: \n \n Claimant:  \n \n The  Claimant  contends that  she  is  entitled to  permanent  partial  disability  benefits  in  the \nweekly amount of $613.00 paid over a period of 18.3 weeks for a total of $11,217.90.  \n The Respondents have refused to return Claimant to work in violation of Ark. Code Ann. \nSection 505 (a).\n2\n  Claimant is thus entitled to 52 weeks paid at her AWW for a total of $63,752. \n00. \n That the Commission should award her no less than $74,969.90 in benefits.    \n \n \n1\nAlthough the Claimant sustained an injury to her right index finger during the December 18, 2023, work-related \nincident, the main injury was to her right wrist.  Therefore, the focal point injury of this claim relates to her right wrist \ninjury. \n \n2\n The Claimant withdrew her request for 505 (a) benefits.  \n\nHaneline-Troedel – H405537 \n3 \n \n That  Respondents controverted  the claim, and the undersigned (Claimant’s attorney) is \nentitled to maximum statutory attorney fees of no less than $18,872.48. \n Respondents \n The Respondents contend that the Claimant reported on January 5, 2024, having an injury \non  December  18,  2023,  to  her  right  wrist  and  index  finger.   The  Respondents accepted  as \ncompensable the Claimant's reported claim for injury.  The Claimant has been provided reasonable \nand necessary medical treatment for her injury, including treatment with  Dr. Mark Tait and Dr. \nJesse Abeler. \n On April 3, 2024, Dr. Tait released the Claimant at MMI with 0% permanent impairment \nrating.  The Claimant returned to Dr. Tait on June 12, 2024, for additional treatment.  The Claimant \nwas  granted  her  one-time  Change  of  Physician  to  Dr  Jesse  Abeler  on  December  2,  2024.   The \nClaimant was provided surgery on her right wrist April 9, 2025, performed by Dr Jesse Abeler. \n The Claimant  was  on  paid leave,  including  maternity  leave, from  November  1,  2024, \nthrough January 23, 2025.   \n Dr. Abeler took the Claimant off work February 14, 2025.  On March 10, 2025, Dr. Abeler \nassigned work restrictions of not using the right hand, which the employer accommodated.  The \nemployer  accommodated  the Claimant,  an  ultrasound  technician,  by  arranging  a  room  with \nequipment  set  up  for  her  to  use  her  left  hand  to run the  equipment.   However,  Dr.  Abeler  then \nassigned  restrictions  the  employer  could  not  accommodate,  including  no  use  of  ultrasound \nequipment with either hand, at which time the Claimant was paid TTD benefits. \n Dr. Abeler saw the Claimant August 25, 2025, wrote that the Claimant appeared to be at \nMMI, but gave work restrictions until a  Functional Capacity Evaluation  and impairment rating, \nwhich  the Claimant  completed  September  15,  2025.   The Claimant  reliably  completed  the  FCE \n\nHaneline-Troedel – H405537 \n4 \n \nexamination in the Medium classification of work, with occasional bi-manual lift/carry of up to \n501bs, lifting/carrying of up to 20 lbs. on a Frequent basis, and an occasional RUE lift of 20 lbs. \nand LUE lift of 20 lbs. when lifting unilaterally from knuckle to shoulder level. The FCE examiner \nassigned a rating of 0% to the Claimant based on the objective results of measurements at the FCE, \nwhich Dr. Abeler signed on September 19, 2025, agreeing with the rating. \n The Claimant was paid TTD benefits from February 14, 2025, through March 10, 2025, \nand again from March 19, 2025, through October 2, 2025.  If the Claimant reached MMI before \nOctober 2, 2025, then the Respondents are entitled to a credit for overpayment of TTD benefits to \nthe Claimant.  Respondents are entitled to an offset for any TTD benefits the Claimant received \nwhile collecting unemployment benefits during the same period of time. \n The Claimant returned to Dr. Abeler on October 2, 2025, and in the report of that visit, Dr. \nAbeler  reiterated  that  the Claimant  was  at  MMI.  However,  Dr,  Abeler  then  assigned  a  10% \nimpairment rating to the Claimant's wrist due to her unique job requirements, loss of grip strength, \nand due to her pain with forceful gripping and circumduction or persistent wrist flexion creating a \nfunctional impairment, in spite of the objective results of the FCE. In the same report of this visit, \nDr. Abeler also released the Claimant to return to work to ultrasound with no formal restrictions \nper the FCE.  Respondents contend that this impairment rating is not supported by objective and \nmeasurable  physical  findings.  Furthermore,  the Guides adopted  by  the  Commission  shall  not \ninclude pain as a basis for impairment, and when determining physical and anatomical impairment, \nneither  a  physician,  any  other  medical  provider,  an Administrative Law Judge, the Workers’ \nCompensation Commission, nor the Courts may consider complaints of pain.   \n The Claimant’s employment ended and she apparently sought employment elsewhere as \nan  ultrasound  technician.   Respondent  employer  asked  the  Claimant  for  a  meeting  to  return  the \n\nHaneline-Troedel – H405537 \n5 \n \nClaimant to suitable employment within her physical and mental limitations, but the Claimant had \nnot responded and evidently does not wish to work for Respondent employer.  \n Discovery  is  ongoing  in  this  matter,  and  the  Respondents reserve  the  right  to  raise \nadditional contentions, or to modify those stated herein, pending the completion of discovery. \n         FINDINGS OF FACT AND CONCLUSIONS OF LAW \nAfter  reviewing  the record  as  a  whole, including  the  medical  reports, the documentary \nevidence, and other matters properly before the Commission, and after having had an opportunity \nto listen  to the Claimant’s testimony and  observe her demeanor, I  hereby  make the  following \nfindings  of  fact  and  conclusions  of  law in  accordance  with  Ark.  Code  Ann. §11-9-704  (Repl. \n2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.     The proposed stipulations set forth above are reasonable and hereby accepted. \n \n          3.         The Claimant did not prove by a preponderance of the evidence that she sustained a \n           permanent anatomical impairment due to her December 18, 2023 compensable right \n           wrist injury. \n     Summary of Evidence \nThe only witness to testify during the hearing was the Claimant, Ms. Racheal Haneline-\nTroedel. \n            The  record  consists  of  the January 21, 2026, hearing  transcript and the exhibits held \ntherein.   In  addition  to  the Pre-hearing  Order  discussed above, the other exhibits  admitted  into \nevidence in this case are: Claimant’s Exhibit 1consisting of 18 numbered pages of the Claimant’s \nMedical Records and a one-page Abstract; Respondents’ Exhibit 1 is designated Respondents’ \n\nHaneline-Troedel – H405537 \n6 \n \nMedical  Exhibit encompassing 47 numbered pages; and Respondents’ Exhibit 2 entails nine \ntotaled pages of the Respondents’ Documentary Exhibit.  \nTestimony \n On the date of the hearing, the Claimant confirmed her age as 41.  She testified that she \nhad worked at UAMS as an ultrasound technologist, performing ultrasounds on pregnant women.  \nAccording to the Claimant, the clinic specializes in very high-risk pregnant patients.  The Claimant \nprovided  an  extensive  overview  of  her employment duties,  which  involved  intensive  use  of  her \nright hand, to operate the ultrasound transducer, and ultrasound machine.  (Tr. p. 11-13) \n The Claimant agreed that she injured herself in December 2023.  According to the Claimant \nshe was ultra-sounding a pregnant patient carrying triplets when her injury occurred.  The Claimant \ntestified  that the  patient  was  extremely  obese,  and  to  get  a  particular  image  she  had  to  press \nextremely hard and that resulted in her hurting her wrist.  The Claimant did not report her injury \nthat day, but she eventually did and it was accepted by the Respondents.   \n She confirmed that they had sent her to Dr. Tait.  He did a steroid shot and ordered an MRI.  \nHowever, Dr. Tait did not take her off work at that time.  After going through a course of treatment \nwith Dr. Tait, the Claimant got a change of physician in October 2024 to treat with Dr. Abeler.   \nShe confirmed that Dr. Abeler performed surgery on her wrist in February 2025.  At that point, \nDr. Abeler took her off work.  The Claimant confirmed that the Respondents paid her temporary \ntotal disability compensation while she was off work for a period of time.  She testified that she \nwas  offered  modified  duty,  and  she accepted it.   The  Claimant  worked  at  a  desk  checking  in \npatients.  Per the Claimant, she used her left hand to work the mouse while performing tasks on \nthe computer.  The Claimant confirmed that she was off work for three weeks, and then she decided \nto undergo the surgery.  Since her surgery, the Claimant denied that she has worked for UAMS.   \n\nHaneline-Troedel – H405537 \n7 \n \n Eventually, Dr. Abeler found the Claimant to be at maximum medical improvement, and \nshe has now gone to work somewhere else.  Currently, the Claimant works at the Baptist Women’s \nClinic in North Little Rock.  She confirmed that she is performing similar kind of work, except \nthey do  not  see  morbidly  obese  patients.   The  Claimant  testified that she  does suffer wrist pain \nwhile at work, but she is able to do her job.  She also testified that it hurts to drive once she gets \noff  work,  and  when  she  gets  home, she experiences  pain trying  to  do  normal  type  things.   The \nClaimant explained that something as simple as writing with a pen, steering her car wheel, picking \nup  her  one-year-old- son,  or cleaning her  countertops is  difficult due  to  pain  in  her  wrist.   She \nconfirmed that she is right-handed.  The Claimant testified that after writing with a pen, her wrist \nfeels very weak and it starts to hurt. \n On  cross-examination,  the  Claimant  confirmed  that  the  Respondents’ attorney  took  her \ndeposition  on  December  30,  2025.   She  stated  that  she  has  worked  in  the line  of  work  as  an \nultrasound technologist since 2009.  According to the Claimant, she worked at UAMS for eight \nyears doing the same job during the entire time that she was there.  She confirmed that she saw Dr. \nTait  and  Dr.  Abeler for  her  wrist  injury,  and  no  other  doctors.  According  to  the  Claimant,  Dr. \nAbeler  prescribed  medications after  her  surgery  in  the  form  of  Gabapentin,  then  a  steroid,  and \nMeloxicam.  She confirmed that Dr. Abeler was her treating physician, and he has not prescribed \nanything else for her wrist. \n The Claimant essentially testified that currently, she takes Propranolol, Amitriptyline, and \nTramadol for another condition unrelated to her wrist injury.  She confirmed that she takes these \nmedications for her fibromyalgia pain.  The Claimant testified that she had a baby during the time \nshe was being treated for her right wrist.  Therefore, there is a gap in her medical records between \nthe last time she saw Dr. Tait and until she saw Dr. Abeler.  During this time, in November 2024, \n\nHaneline-Troedel – H405537 \n8 \n \nthe Claimant had her baby.  That was before her first visit with Dr. Abeler.  After her surgery, the \nClaimant underwent physical therapy sessions for twelve weeks, two times a week.  She admitted \nthat the physical therapy treatment improved her range of motion.  According to the Claimant, it \nwas just very slow.  \n The Claimant confirmed that she underwent a functional capacity evaluation on September \n14,  2025.    She  confirmed  that  it  was  very  thorough  test.    She  admitted  that  she  understood \neverything that she was being asked to do.  The Claimant agreed that she believes that she put forth \nher best effort on the test.  She admitted that she was asked to perform a number of tasks involving \nher hands, such as picking up objects and things of that nature.  The Claimant confirmed that she \nperformed  these  tasks  pretty  well.   The  Claimant  further  confirmed  that  the  examiner  did  some \nmeasurements of  her  arm, hand, and wrist.    She  agreed  that the examiner  used  a  tool  called  a \ngoniometer, to measure the angles.  It also has the degrees of movement.  The examiner found that \nthe Claimant had full range of motion in both wrists.  She confirmed that she did some griping of \nthe machine more than once using both her left and right hand.  Per this report, the Claimant gave \na completely reliable effort in each of these examinations.  The Claimant denied that she had any \nreason to doubt the findings of this report.   \n She confirmed that after undergoing the functional capacity evaluation, she saw Dr. Abeler.  \nAt that point, he was no longer recommending any kind of treatment and assessed the Claimant \nwith  a  0%  permanent  impairment  rating.  The Claimant essentially admitted that  she  asked  for \nanother doctor’s appointment and the Respondents allowed her to have an additional office visit.  \nThis was her last medical visit for her wrist.  At that point, the Claimant expressed that she had \nsome issues with pain in her wrist.  The Claimant stated that she also wanted to talk to Dr. Abeler \nabout the functional capacity test.   \n\nHaneline-Troedel – H405537 \n9 \n \n Under  further  questioning,  the  Claimant  admitted  that  when  she  reported  the injury  and \nfilled out some forms.  The Claimant admitted that she signed a Form N.  She further admitted that \nwhen her employment with UAMS ended, she received a letter from the  human resource office \ninviting  her  to  come  back  to work  there.    They asked to meet  with the  Claimant to  discuss the \nposition.  However, by that time, the Claimant had already started to work at Baptist.  The Claimant \nconfirmed  that  the  patients  at  Baptist  are  not  high-risk,  and  they are not  morbidly  obese.  As  a \nresult, now it is easier for her to perform the ultrasounds.  She confirmed that the pressing with \nmore force is what caused her wrist injury.  The Claimant agreed that it was her testimony earlier \nthat she had to operate the device on the ultrasound machine with her right hand, and she had to \npress harder with larger patients.  She also had to maneuver her hand back and forth to get certain \nangles and images while performing the ultrasounds.  The Claimant agreed that the pressing with \nmore force in combination with having to twist and turn her wrist caused her injury.  \n   During the Claimant’s deposition, she testified that her hobbies include photography work.  \nShe  admitted  that  her  last  paying  job  as  a  photographer  was  in  October  2025.    She  was  paid \n$350.00.  The Claimant confirmed that she operates the camera with her right hand.  However, the \nClaimant claimed that the majority of the weight of the camera is supported by her left hand.  She \ntestified that she occasionally must turn the camera up and down or from different angles to take \ndifferent photos.   According to the Claimant, she does most of this activity with her left hand.  She \nadmitted that she has to turn the lens.   \n The Claimant confirmed that she has three horses on her property.  She last rode her horse \nin  October  2025.    According  to  the  Claimant,  a  friend  saddled her horse, and  she  rode  for  45 \nminutes.  The Claimant denied that it hurt her wrist to ride the horse.  She claimed that she used \nher left hand to control the horse with the reins.  The Claimant agreed that she uses her right hand \n\nHaneline-Troedel – H405537 \n10 \n \nwhen feeding the horses and brushing them.  She admitted that she drove three-and-a-half hours \nto  Monroe,  Louisiana  roundtrip,  and  spent  Christmas  there.    She  did  not  recall  whether  the  trip \nhurt her wrist.  \n According  to  the  Claimant,  she  is  not  being  accommodated in  any manner at  Baptist \nHealth.  She confirmed that there is nothing limiting what she can do as an ultrasound technician.   \nMedical Records \n On January 16, 2024, the Claimant had a telehealth appointment with Tracey M. England, \nAPRN, CNP, due to pain in her right wrist and right index finger.  However, the Claimant denied \nany numbness or loss of function.  The Claimant was placed on activity restrictions of sedentary \nwork  only, which  included no  lifting,  grasping, or  carrying  more  than  ten  pounds.  England \nsuggested that the Claimant continue to rest, apply ice, and to take home medications as tolerated.  \nShe recommended that the Claimant follow up with an orthopedic specialist as needed. \n The Claimant was seen at the UAMS Ortho Clinic, on Autumn Road on February 28, 2024, \nunder the care of Dr. Mark Tait.  Per these clinic notes, the Claimant was patient with the clinic \nwho sustained an injury to her right wrist.  She continued to work as an ultrasound technician.  The \nClaimant reported that she did not have any improvement with buddy taping of the index finger or \nwith the oral steroid Dosepak.  She was also sent for an MRI evaluation.  At that point, the Claimant \ncomplained  of  right  finger  pain  as  well  as  pain  on  the  ulnar  palmar  surface.   On  physical \nexamination,  the  Claimant  showed  tenderness  over  the  pisiform  with  palpation.    She  had  with \nresisted ring and small finger flexion.  However, she had no pain with Watson maneuver or pain \nover the dorsal aspect of the wrist.  Also, the Claimant had no pain over the PIP joint of the index \nfinger and some mild pain over the DIP.  There was no instability of the distal radial ulnar joint.  \nHowever,  there  was  some  mild  pain  of  the  TFCC.   Radiograph revealed degenerative  TCFF \n\nHaneline-Troedel – H405537 \n11 \n \nfraying with some mild TFCC fluid and edema.  Mild degeneration of the SL and small ganglion \ncyst.  Impression was: “1.  Persistent right index finger pain after collateral ligament sprain.  2. \nRight wrist pisotriquetral tenderness,” for which the Claimant was given a therapeutic injection of \nthe pisotriquetral joint and topical anti-inflammatories for the index finger. \n Dr. Tait saw the Claimant for a follow-up visit on April 3, 2024, for her wrist injury and \ncontinued pain and related symptoms.  On physical examination, Dr. Tait found that the Claimant \nhad continued tenderness over the pisiform.  There was no tenderness over the ulnar fovea.  There \nwas  stability  of  the  distal  radial  ulnar  joint.    Dr.  Tait  noted  the  previous  MRI  showed  some \ndegenerative changes of the TFCC and a small ganglion cyst dorsally.  The Claimant reported that \nshe had 50% recovery and still had pain with lifting and gripping.  His impression was “Improved \nright  pain  some  persistent  pain  with  heavy  lifting  over  the  pisotriquetral  joint  without  advance \nosteoarthritis or pisiform fracture or edema on MRI.”  At that time, Dr. Tait stated that the Claimant \nhad reached MMI and he continued to put her on full duty without restrictions.  In accordance with \nthe American Medical Association guides to the evaluation of permanent impairment 4\nth\n ed., she \nhas no permanent impairment. \n On January 30, 2025, the Claimant was evaluated by Dr. Jesse Abeler for follow-up of the \nright wrist.  She had been wearing her current active armor cast on a consistent basis over the last \nweeks after multiple adjustments of the cast.  At that point, Dr. Abeler’s impression was: Right \nwrist  FCU tendinitis, and  Pisiform insertional  tendinitis.  Dr.  Abeler  recommended  continued \nimmobilization  with  the  active  armor  case and  decompression  of  the  sensitive  area  along  the \nPisiform.   He continued her current level of restrictions.           \n An Orthopedic Operative Note/Operative Report was authored by Dr. Abeler on April 9, \n2025: \n\nHaneline-Troedel – H405537 \n12 \n \n Pre-Op  Diagnosis:  Right  Wrist  Flexor  carpi  ulnaris tendinous,  pisiform-triquetral  joint \n arthrosis. \n \n Post-Op Diagnosis: same. \n \n Procedure(s): \n 1) Right Wrist flexor capri ulnaris repair with autograft palmaris longus (25265) \n 2) Right wrist excision of Pisiform (25210) \n \n The Claimant returned to Dr. Abeler’s office for follow-up of the right wrist, July 14, 2025.  \nShe continued to have soreness along the ulnar border of the hand; some sensitivity localized to \nthe  incision  area.   However,  Dr.  Abeler  stated  that  the  Claimant did  not show any  evidence  of \ninfection.  Dr. Abeler instructed the Claimant to continue occupational therapy to begin transition \nout  of  the  brace  more  consistently.    He  did  a  repeat  or  the  oral  steroids  and  continued  her  on \nGabapentin.  The Claimant was scheduled for a six-week follow-up visit.  At that time, Dr. Abeler \nstated that he would consider a referral for a functional capacity evaluation examination with MMI \nrating at the time of the Claimant’s follow-up visit.          \n  On  August  25,  2025,  the  Claimant  returned  to  Dr. Abeler  for  a  follow-up  visit  for \nrevaluation of her compensable wrist injury.  She continued to have soreness along the ulnar border \nof  her  hand  some  sensitivity  localized  to  the  surgical  incision.   However,  the  Claimant proved \nduring this evaluation that she continued to with some progress of range of motion.  At that point, \nDr.  Abeler  opined  that  the  Claimant  appeared  to  be  at  maximum  medical  improvement.    As  a \nresult, he recommended that the Claimant undergo a functional capacity evaluation for final work-\nrelated restrictions and final impairment rating. \n The Claimant underwent a Functional Capacity Evaluation on September  15, 2025.  Per \nthis evaluation, the Claimant put forth a reliable effort, with 52 out of 52 consistency measures \nwithin  expected  limits.  This evaluation showed that  the  Claimant  demonstrated  the  ability  to \nperform functional work tasks equivalent to the MEDIUM classification of work as defined by \n\nHaneline-Troedel – H405537 \n13 \n \nthe US Dept. of Labor’s guidelines over the course of a normal 8-hour workday.  The evaluator \nspecifically stated that there was no noted atrophy of the Claimant’s right forearm.  There were no \ngross  deformity  or  other  abnormalities  in  the  muscle  bulk  or  any  asymmetrical  bony  defects \nobserved of her right arm or hand.  Sensation was reported diminished the incision area.  She had \nfull motion of the upper right elbow, and wrist PROM was within the normal limits.  The evaluator \nspecifically stated that the Claimant’s pain was not taken into account to figure out the impairment \nrating.    No  other  ratable  finding  was  found  related  to  the  right  upper  extremity.   As  such,  the \nClaimant was assessed a 0% impairment to the upper extremity, centered to a 0 % whole person.     \n The Claimant presented to Dr. Abeler for follow-up for her right wrist on October 2, 2025.  \nDr.  Abeler  noted  that  he  had  an  extensive  discussion  with  the  Claimant  about  her  rating  on  the \nfunctional  exam.    She  had  well  maintained  range  of motion, however  the  complexity  of  her \navailable wrist range of motion and the motion specifically needed for using an ultrasound probe \ndoes create limitations in her complete recovery.  At that time, the Claimant had shown excellent \nprogress with occupational therapy, and regaining range of motion.  However, she continued to \nhave pain with forceful gripping  and  circumduction  or  persistent  wrist  flexion,  creating a \nfunctional impairment.  Dr. Abeler specifically opined:  \nAccording to the American Medical Association “guides to the evaluation of permanent \nimpairment, fourth edition” page 3/83 under the heading “other musculoskeletal system \ndefect additional impairment may be assigned when the severity of clinical findings may \nnot correspond to the extent of a musculoskeletal defect.   She demonstrates limitation of \nthe wrist with functional use despite her excellent range of motion due to limited sustained \ngrip strength and loss of endurance.”   \n \nBased on her unique job requirements and the specified movements required precisely of \nultrasonography I recommend a 10% impairment to the wrist/upper extremity, according \nto table 3 on page 3/20 this correlates to a 6% whole person impairment rating. \n \n     \n\nHaneline-Troedel – H405537 \n14 \n \n               Adjudication \n Permanent Partial Anatomical Impairment Rating     \n  Permanent  impairment has  been  defined  as any  functional  or  anatomical  loss  remaining \nafter  the  healing  period  has  been  reached.   Johnson  v.  Gen.  Dynamics,  46  Ark.  App.  188,  878 \nS.W.2d 411 (1994).  The Commission has adopted the American Medical Association Guides to \nthe  Evaluation  of  Permanent  Impairment (4\nth\n ed.  1993)  to  be  used  in  assessing  anatomical \nimpairment.  See Commission Rule 099.34 (now codified at 11 C.A.R. § 25-129); Ark. Code Ann. \n§11-9-522(g) (Repl. 2012).  It is the Commission’s duty, using the Guides, to determine whether \nthe Claimant  has  proved she  is  entitled to  a  permanent  anatomical  impairment.   Polk  County  v. \nJones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).      \n Any determination of the existence or extent of physical impairment shall be supported by \nobjective  and  measurable  physical  findings.    Ark.  Code  Ann.  §11-9-704(c)(1)  (Repl.  2012).  \nObjective findings are those findings which cannot come under the voluntary control of the patient.  \nArk. Code Ann. §11-9-102(16)(A)(i) (Repl. 2012).    All that is needed is that the medical evidence \nbe supported by objective findings.  Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d \n709 (2006).      \nPermanent  benefits  shall  be  awarded only  upon  a  determination  that  the  compensable \ninjury was the major cause of the disability or impairment.  Ark. Code Ann. §11-9-102(F)(ii)(a) \n(Repl. 2012).  “Major cause” means “more than fifty percent (50%) of the cause,” and a finding of \nmajor cause shall be established according to a preponderance of the evidence.  Ark. Code Ann. \n§11-9-102(14) (Repl. 2012).  Preponderance of the evidence means the evidence that has greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).   \n\nHaneline-Troedel – H405537 \n15 \n \nIn the present matter, I am unable to find that all the statutory requirements have been met \nto prove a permanent anatomical impairment to her right wrist.   \nThe Claimant worked as an ultrasound technician for UAMS.   In late December 2023, the \nClaimant sustained admittedly compensable  injuries to  her  right  wrist and  index  finger at  work \nwhile performing an ultrasound on a patient.   \nThe  Claimant  reported  her injury, and  the  Respondents  accepted  this  as  a  compensable \nclaim and began paying reasonable and necessary medical benefits.  The Claimant treated with Dr. \nTait and Dr. Abeler.   \nIn April 2024, Dr. Tait released the Claimant to be at maximum medical improvement for \nher compensable injury.  At that time, Dr. Tait assessed the Claimant with a zero percent permanent \nanatomical  impairment  for  her  wrist  injury.    He  also  returned  the  Claimant  to  work  full  duty \nwithout any restrictions. \n Ultimately, the Claimant obtained a change of physician to treat with Dr. Abeler.  April 9, \n2025, Dr. Abeler performed surgery on the Claimant’s right wrist.  Her  diagnoses for both pre- \nand post-operative care were “Right Wrist Flexor carpi ulnaris tendinous, and pisiform-triquetral \njoint  arthrosis.” Following  the  Claimant’s surgery,  Dr.  Abeler  recommended that the  Claimant \nundergo an FCE.  The Claimant in fact underwent an FCE on September 15, 2025, with reliable \nresults of 52 out of 52 consistency measures.  She demonstrated the ability to perform work in the \nmedium  classification of  work as defined by the US Department of Labor’s guidelines over  a \nnormal workday.  The examiner assessed the Clamant a 0% impairment rating based on objective \nmeasurements at the FCE.  The Claimant was found to have full range of motion of her upper left \nupper extremity.  She had no atrophy or any other muscle loss or objective medical findings or \ndeficits.  On that same day, Dr. Abeler agreed with the rating and findings of the Claimant’s FCE. \n\nHaneline-Troedel – H405537 \n16 \n \n However, the Claimant returned to Dr. Abeler on October 2, 2025.  At that time, Dr. Abeler \nassessed the Claimant with a 10% impairment to her wrist due to her compensable injury.    He \nbased this increased rating on subjective deficits demonstrated by the Claimant such as loss of grip \nand strength.  The Claimant also had complaints of pain.  During the hearing, the Claimant testified \nthat she has now returned to work at full duty at Baptist Health in the capacity as an ultrasound \ntechnician.  She confirmed that she currently works more hours than she worked at UAMS, but \nshe insisted that the work is less strenuous.   I found the Claimant to be a credible witness.  She \ncredibly testified that she experiences some pain in her wrist, especially after work.  However, the \nClaimant admitted that she has been able to engage in hobbies and activities such as a photography \nwork and horseback riding.  There is no medical evidence to support a finding that the Claimant \nhas sustained any physical impairment to her wrist due to swelling, atrophy, or any measurable \nobjective medical findings in her wrist resulting from her compensable injury so as to prove her \nentitlement  to permanent  anatomical  impairment  rating.    Although  Dr.  Abler  changed  his \nimpairment rating of the Claimant’s right wrist, this rating is based on the Claimant’s complaints \nof pain.  There have been no measurable objective findings documented of record to support the \nfinding of a permanent physical impairment to the Claimant’s right wrist.   \n Under these circumstances, I have assigned inconsequential weight to Dr. Abeler’s second \nfinding of a 10% impairment to the Claimant’s right wrist.  I find that the FCE evaluator’s finding \nof   a   0%   impairment   is correct and   well-reasoned.    Most  significantly,  the  examiner’s \nmeasurements and physical examination of the Claimant’s right wrist clearly demonstrated a lack \nof any measurable physical deficits to support a permanent partial anatomical impairment to her \nwrist.  As  a  result,  I  am  unable  to  find the  existence  of a  remaining  anatomical  loss  to  the \nClaimant’s wrist supported by objective and measurable physical findings.   \n\nHaneline-Troedel – H405537 \n17 \n \n It  is  widely  recognized under workers’ compensation law in Arkansas that  pain  is  not \nrecognized  as  an  objective  medical  finding.   For  this reason,  I  am compelled  to  find  that  the \nClaimant failed to prove her entitlement a permanent impairment rating or functional anatomical \nloss remaining due to her compensable wrist injury of December 2023.   \n                                                               ORDER \n This claim for a permanent anatomical impairment is hereby respectfully denied and \ndismissed in its entirety. \n      IT IS SO ORDERED. \n \n                                                                            ______________________                       \n                         CHANDRA L. BLACK \n                                Administrative Law Judge","textLength":34431,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H405537 RACHEL HANELINE-TROEDEL, EMPLOYEE CLAIMANT UAMS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED MARCH 31, 2026 Hearing held before Administrative Law Judge CHANDRA L. BLACK, in Little Rock, Pulaski County,...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["wrist","shoulder","back","sprain","fracture"],"fetchedAt":"2026-05-19T22:31:29.006Z"},{"id":"alj-H402327-2026-03-30","awccNumber":"H402327","decisionDate":"2026-03-30","decisionYear":2026,"opinionType":"alj","claimantName":"Ethel Hall","employerName":"Walmart Associates, Inc","title":"HALL VS. WALMART ASSOCIATES, INC. AWCC# H402327 March 30, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Hall_Ethel_H402327_20260330.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Hall_Ethel_H402327_20260330.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H402327 \n \nETHEL L. HALL, \nEMPLOYEE                                                                                                              CLAIMANT \n \nWALMART ASSOCIATES, INC., \nEMPLOYER /CARRIER/TPA                                                                           RESPONDENT  \n \n \nOPINION FILED MARCH 30, 2025 \n \nHearing conducted on Friday, February 24,  2026, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant is Pro Se, of Greenbrier, Arkansas.  \n \nThe Respondents  were represented by Mr. Michael  C.  Stiles,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non December 19, 2025.  A hearing on the motion was conducted on February 24, 2026, in Little \nRock, Arkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as an  automation  support  associate. \nThe date for Claimant’s alleged injury was on May 22, 2023. This incident was reported to the \nRespondent/Employer on April 8,  2024. Admitted  into  evidence  was Respondents’ Exhibit 1, \npleadings,  and  correspondence,  consisting  of 9 pages,  and Commission  Ex. 1, pleadings, \ncorrespondence, and U.S. Mail return receipts, consisting of 15 pages, as discussed infra. \nThe record reflects on April 5, 2024, a Form AR-C was filed by Claimant purporting that \nClaimant sustained an injury to her left shoulder during a work incident. On April 15, 2024, a Form \nAR-1 was filed purporting that no incident was ever reported to management. On April 23, 2024, \n\nHALL, AWCC No. H402327 \n \n2 \n \na  Form  AR-2  was  filed disputing  that  Claimant  was  injured  during  the  course  and  scope  of \nemployment.  On May 28, 2024, a Form AR-C was filed by Claimants then-attorney, Gary Davis, \npurporting  that  Claimant  sustained an injury to  her left  shoulder and  arm  while  lifting  cases  of \nwater.  \nRespondents  filed  a  motion  to  dismiss  on  October  29,  2024,  for  failure  to  prosecute. \nClaimant objected to the dismissal, in writing, and requested a full hearing on November 21, 2024. \nI  held  the  dismissal  request  in  abeyance  on  the  same  day.  On  January  21, 2025,  a  prehearing \ntelephone conference was held, and a prehearing order was filed on the same day. The prehearing \norder  was also sent  out  the  same  day,  certified  mail,  to  Claimant  and  Claimant’s  counsel. \nClaimant’s certified letter was returned to the Commission; however, Claimant’s counsel’s letter \nwas  not  returned  to  the Commission. The  full  hearing  was  set  for  March  25,  2025,  10:00 a.m., \nLittle Rock, Arkansas. On January 30, 2025, Claimant’s counsel sent an email that stated he was \nhaving difficulty in locating the Claimant. On March 11, 2025, Respondents sent an email asking \nfor a continuance due to incomplete discovery, mainly Claimant’s failure to appear at a scheduled \ndeposition. I granted the continuance and sent the file back to general files.  \nOn March 12, 2025, Claimant’s then-attorney filed a Motion to Withdraw as Claimant’s \nattorney due to her failure to communicate with him. The Full Commission granted Mr. Davis’s \nmotion on April 9, 2025. Respondents filed another motion to dismiss due to Claimant’s failure to \nprosecute her claim on December 19, 2025. The Claimant was sent, on December 30, 2025, notice \nof  the  Motion  to  Dismiss, via certified  and  regular  U.S.  Mail,  to  her last  known  address.  The \ncertified motion notice was not claimed by Claimant as noted by the return of the certified letter \nto  the  Commission on January  5,  2025. This  notice was  also  sent regular  U.S.  Mail and was \nreturned to the Commission on the same date as the certified letter. Moreover, as a courtesy, the \n\nHALL, AWCC No. H402327 \n \n3 \n \nmotion  notice  was  sent  to  Claimant,  via  email,  on  December  30,  2025. The  Claimant  did not \nrespond to the Motion, in writing, as required. Thus, in accordance with applicable Arkansas law, \nthe Claimant was mailed due and proper legal notice of Respondents’ Motion to Dismiss hearing \ndate  at  her current  address  of  record  via  the  United  States  Postal  Service  (USPS),  First  Class \nCertified Mail, Return Receipt Requested, and regular First-Class Mail, on January 22, 2026. The \ncertified notice was not claimed as noted by the February 2, 2026, return receipt. Likewise, the \nhearing  notice  sent  regular  First-Class  was  returned  to  the  Commission on  that same  date. The \nhearing took place on February 24, 2026. And as mentioned before, the Claimant did not show up \nto the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the February 24, \n2026, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \n\nHALL, AWCC No. H402327 \n \n4 \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice  was not claimed by  Claimant.  The  notice  sent  regular  U.S.  Mail  was  returned  to  the \nCommission  on  February  2,  2026.  The  Claimant  is  responsible  for  keeping  the  Commission \napprised of her current address. The Claimant did not do that. Nevertheless, sending notices to the \nlast known address of record is reasonable. Thus, I find by the preponderance of the evidence that \nthe Claimant did receive reasonable notice of this Motion to Dismiss hearing.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to  a want of prosecution. The  Claimant filed a Form \nAR-C but  has  failed  to  prosecute  her  claim. Therefore,  I  do  find  by  the  preponderance  of  the \nevidence that Claimant has failed to prosecute her claim. Thus, Respondents’ Motion to Dismiss \nshould be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":7488,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H402327 ETHEL L. HALL, EMPLOYEE CLAIMANT WALMART ASSOCIATES, INC., EMPLOYER /CARRIER/TPA RESPONDENT OPINION FILED MARCH 30, 2025 Hearing conducted on Friday, February 24, 2026, before the Arkansas Workers’ Compensation Commission (the Commission), Administrat...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["shoulder","back"],"fetchedAt":"2026-05-19T22:31:20.705Z"},{"id":"alj-H503802-2026-03-30","awccNumber":"H503802","decisionDate":"2026-03-30","decisionYear":2026,"opinionType":"alj","claimantName":"Justin Lantrip","employerName":"Highland Pellets, LLC","title":"LANTRIP VS. HIGHLAND PELLETS, LLC AWCC# H503802 March 30, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LANTRIP_JUSTIN_H503802_20260330.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LANTRIP_JUSTIN_H503802_20260330.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H503802 \n \nJUSTIN E. LANTRIP, EMPLOYEE        CLAIMANT \n \nHIGHLAND PELLETS, LLC, EMPLOYER                       RESPONDENT \n \nGRANITE STATE INS. CO./GALLAGHER BASSETT \nSERVICES, INC., CARRIER/TPA                 RESPONDENT \n  \n \n \nOPINION FILED 30 MARCH 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 12 March 2026 in Pine Bluff, Arkansas. \n \nRainwater, Holt & Sexton, P.A., Ms. Laura Beth York, waived appearing. \n \nWorley, Wood & Parrish, P.A., Mr. Jarrod Parrish, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 12 March 2026. This case relates to an alleged workplace injury \noccurring on 17 June 2025. The record of the hearing consists of the transcript and \nRespondents’ Exhibit No 1, which consisted of one index page and ten subsequent pages of \nfilings and correspondence.  \nClaimant’s counsel filed a Form AR-C relating to this claim on 25 July 2025. That \nform indicated that the claimant was seeking all benefits potentially available in relation to \nhis alleged injury. Counsel for the respondents entered an appearance on the same day. \nOn 11 February 2026, the respondents submitted their request for a dismissal \nwithout prejudice. They noted that the claim had been accepted, that some benefits had \nbeen paid, and that the claimant had not requested a hearing on any issue that was ripe for \n\nJ. LANTRIP- H503802 \n2 \n \nlitigation. The motion specifically cited 11 CAR § 25-110(d) and Ark. Code Ann. § 11-9-702 \nas grounds for dismissal. \n Claimant’s counsel submitted a response to the motion on 13 February 2026. [Resp. \nEx. No 1.] The claimant did not object to a dismissal as long as the dismissal would be \nentered without prejudice. He further waived his appearance based on the same. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim is dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 12 March 2026 and presented their motion. As argued \nby the respondents at the hearing, 11 C.A.R. § 25-110(d) provides for a dismissal for failure \nto prosecute an action upon application by either party and reasonable notice. The claimant \ndid not object to his claim being dismissed without prejudice.  \nThe claimant filed his Form AR-C on 25 July 2025. He has not since requested that \nthe Commission take any action on this claim. Having been provided notice of the \nrespondents’ motion, he did not object to a dismissal without prejudice and waived \nappearing at the hearing on that basis. Having reviewed the record evidence, a dismissal \nwithout prejudice is appropriate.  \n \n\nJ. LANTRIP- H503802 \n3 \n \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3517,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H503802 JUSTIN E. LANTRIP, EMPLOYEE CLAIMANT HIGHLAND PELLETS, LLC, EMPLOYER RESPONDENT GRANITE STATE INS. CO./GALLAGHER BASSETT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED 30 MARCH 2026 Heard before Arkansas Workers’ Compensation Commission (“t...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:31:22.770Z"},{"id":"alj-H304678-2026-03-30","awccNumber":"H304678","decisionDate":"2026-03-30","decisionYear":2026,"opinionType":"alj","claimantName":"Bruce Roberts","employerName":"City Of Jonesboro","title":"ROBERTS VS. CITY OF JONESBORO AWCC# H304678 March 30, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Roberts_Bruce_H304678_20260330.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Roberts_Bruce_H304678_20260330.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H304678 \n \nBRUCE ROBERTS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nCITY OF JONESBORO, \nEMPLOYER                                                                                                         RESPONDENT  \n \nMUNICIPAL LEAGUE WC PROGRAM, \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED MARCH 30, 2026 \n \nHearing conducted on Friday, February  27,  2026, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant is Pro Se, of Jonesboro, Arkansas.  \n \nThe Respondents were represented by Ms. Mary K. Edwards, Attorney at Law, North Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non December  15, 2025.    A  hearing  on  the  motion  was  conducted  on February  27,  2026,  in \nJonesboro, Arkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the \nhearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as a fire  fighter.  The  date  for \nClaimant’s  alleged  injury  was  on June   17,   2023. This   incident   was   reported   to   the \nRespondent/Employer on the  same  date. Admitted  into  evidence  was Respondents’ Exhibit 1, \npleadings, and correspondence, consisting of 10 pages, and Commission Ex. 1, emails, and U.S. \nMail return receipts, consisting of 4 pages, as discussed infra. \n\nROBERTS, AWCC No. H304678 \n \n2 \n \nThe record reflects on July 26, 2023, a Form AR-1 was filed with the Commission noting \nthat Claimant injured his left shoulder while lifting the dump tank from a tanker. Also on July 26, \n2023, a Form AR-2 was filed accepting claim as medical-only. On August 22, 2023, a Form AR-\n2 was filed no longer accepting or denying compensability. On March 21, 2025, a Form AR-C was \nfiled purporting that Claimant sustained a torn rotator cuff injury in his left shoulder in a work-\nrelated incident.  \nThe Respondents filed a motion to dismiss for lack of prosecution on December 15, 2025. \nThe Claimant was sent, on December 19, 2025, notice of the Motion to Dismiss, via certified and \nregular U.S. Mail, to his last known address. The certified motion notice was claimed by Claimant \nas noted on the December 24, 2025, return receipt. This notice was also sent regular U.S. Mail and \ndid  not  return  to  the  Commission. Despite  this,  the  Claimant  did not respond  to the  Motion,  in \nwriting, as required. Thus, in accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of Respondents’ Motion to Dismiss hearing date at his current address \nof record via the United States Postal Service (USPS), First Class Certified Mail, Return Receipt \nRequested, and regular First-Class Mail, on January 21, 2026. The certified notice was claimed as \nnoted by the January 28, 2026, return receipt. Likewise, the hearing notice sent regular First-Class \nwas  not  returned  to  the  Commission. The  hearing  took  place  on February 27,  2025.  And  as \nmentioned before, the Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n\nROBERTS, AWCC No. H304678 \n \n3 \n \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the February 27, \n2026, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was claimed by Claimant, per the return postal notice bearing the January 28, 2026, date. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \nAR-C on March 21, 2025. Since then, he has failed to prosecute his claim. Therefore, I do find by \nthe  preponderance  of  the  evidence  that  Claimant  has  failed  to  prosecute  his claim.  Thus, \nRespondents’ Motion to Dismiss should be granted. \n \n\nROBERTS, AWCC No. H304678 \n \n4 \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5754,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H304678 BRUCE ROBERTS, EMPLOYEE CLAIMANT CITY OF JONESBORO, EMPLOYER RESPONDENT MUNICIPAL LEAGUE WC PROGRAM, CARRIER/TPA RESPONDENT OPINION FILED MARCH 30, 2026 Hearing conducted on Friday, February 27, 2026, before the Arkansas Workers’ Compensation Commissi...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["shoulder","rotator cuff"],"fetchedAt":"2026-05-19T22:31:24.835Z"},{"id":"full_commission-H306164-2026-03-27","awccNumber":"H306164","decisionDate":"2026-03-27","decisionYear":2026,"opinionType":"full_commission","claimantName":"Whitney Scruggs","employerName":"Express Services, Inc","title":"SCRUGGS VS. EXPRESS SERVICES, INC. AWCC# H306164 March 27, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Scruggs_Whitney_H306164_20260327.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Scruggs_Whitney_H306164_20260327.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO. H306164 \n \nWHITNEY SCRUGGS, \nEMPLOYEE \n \nCLAIMANT \nEXPRESS SERVICES, INC.,  \nEMPLOYER \n \nRESPONDENT \nAIU INSURANCE COMPANY/ \nSEDGWICK CMS, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 27, 2026  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant failed to appear. \n \nRespondents represented by the HONORABLE CAROL LOCKARD \nWORLEY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant, pro se, appeals an administrative law judge’s opinion \nand order filed November 26, 2025.  The administrative law judge granted \nthe respondents’ motion to dismiss without prejudice.  After reviewing the \nentire record de novo, the Full Commission affirms the administrative law \njudge’s opinion.   \nI.  HISTORY \n The record indicates that Whitney Scruggs, now age 44, became \nemployed with the respondents, Express Services, Inc., on or about \nSeptember 6, 2023.  The record contains a “WORKERS COMPENSATION \n\nSCRUGGS - H306164  2\n  \n \n \n– FIRST REPORT OF INJURY OR ILLNESS” prepared on September 21, \n2023.  The “FIRST REPORT OF INJURY OR ILLNESS” indicated that the \nclaimant sustained a work-related injury to his chest and ribs on September \n11, 2023.  The record indicates that the respondent-carrier accepted the \nclaim, and that the respondents provided a period of compensation \nbeginning September 25, 2023.   \n The claimant filed a Form AR-C, CLAIM FOR COMPENSATION on \nFebruary 13, 2024.  The ACCIDENT INFORMATION section of the Form \nAR-C indicated that the Date of Accident was September 11, 2023:  \n“CLAIMANT INJURED MULTIPLE BODY PARTS, INCLUDING W/O \nLIMITATION, BACK, TAILBONE, RIBS, TOES, FACE, FINGERS.”  The \nCLAIM INFORMATION section of the Form AR-C indicated that the claim \nwas for “initial” benefits, including Temporary Total Disability, Temporary \nPartial Disability, Permanent Partial Disability, Permanent Total Disability, \nRehabilitation, Attorney Fees, and Medical Expenses. \n The respondents filed motions to dismiss on August 20, 2024 and \nJanuary 30, 2025.   \n An administrative law judge filed an opinion on August 27, 2025.  \nThe administrative law judge determined in part: \nIt is noted that appropriate notice was provided to the claimant \nnotifying him of the hearing and that he was in fact present.  \nThe claimant again stated that he intended to pursue his \nclaim.  It is also noted that the claimant had failed to take any \n\nSCRUGGS - H306164  3\n  \n \n \naction to pursue the claim since the previous Motion to \nDismiss, although he did in fact appear at both Motion to \nDismiss hearings.   \n \n An administrative law judge entered an order on August 27, 2025 \nand took the respondents’ motions under advisement.  The administrative \nlaw judge corresponded with the claimant on September 17, 2025 and \nstated among other things, that the claimant should submit a Prehearing \nQuestionnaire to the Commission.  The claimant did not appear at a hearing \nheld on November 18, 2025.  The administrative law judge filed an opinion \non November 26, 2025.  The administrative law judge ordered, “Pursuant to \nthe above statement of the case, documents entered into the record, and \nstatements by the Attorney for the Respondents, there is no alternative but \nto grant the Motion to Dismiss without prejudice pursuant to 11 C.A.R. \n110(d) of the Arkansas Workers’ Compensation Commission and A.C.A. \n§11-9-702(a)(4).”         \n The claimant appeals to the Full Commission.   \nII.  ADJUDICATION \n Commission Rule 099.13, now codified at 11 CAR §25-110, provides \nin pertinent part: \n(d)  Upon meritorious application to the commission from \neither party in an action pending before the commission \nrequesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to \nthe parties, enter an order dismissing the claim for want of \nprosecution.   \n\nSCRUGGS - H306164  4\n  \n \n \n \n The purpose of Commission Rule 099.13 is to permit the claimant to \nresist dismissal of the claim and to show, if he can, why the application for \ndismissal is without merit.  Dura Craft Boats, Inc. v. Daugherty, 247 Ark. \n125, 444 S.W.2d 562 (Ark. 1969). \n The Full Commission finds in the present matter that the \nrespondents’ motion to dismiss is meritorious.  The claimant states on \nappeal that he did not receive notice of the November 18, 2025 hearing, \nasserting that he was incarcerated from September 11, 2025 through \nJanuary 13, 2026.  The claimant presents no corroborating proof of his \nincarceration during this period.  Moreover, the claimant previously filed a \nForm AR-C, CLAIM FOR COMPENSATION on February 13, 2024.  The \nevidence does not demonstrate that the claimant made a bona fide request \nfor a hearing within six (6) months of the filing of the claim for \ncompensation, as is required by Ark. Code Ann. §11-9-702(a)(4)(Repl. \n2012).  Nor has the claimant yet taken any substantive action or made a \ngood faith effort to present medical records or other probative evidence to \nthe Commission throughout the length of the claim.  The Commission finds \nthat there is indeed a “want of prosecution” in the present matter.   \n The Full Commission therefore affirms the administrative law judge’s \norder dismissing the claim without prejudice, in accordance with 11 CAR \n25-110(d) and Ark. Code Ann. §11-9-702(a)(4)(Repl. 2012).    \n\nSCRUGGS - H306164  5\n  \n \n \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":5786,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H306164 WHITNEY SCRUGGS, EMPLOYEE CLAIMANT EXPRESS SERVICES, INC., EMPLOYER RESPONDENT AIU INSURANCE COMPANY/ SEDGWICK CMS, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 27, 2026","outcome":"dismissed","outcomeKeywords":["affirmed:1","dismissed:5"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:43.813Z"},{"id":"full_commission-H404818-2026-03-27","awccNumber":"H404818","decisionDate":"2026-03-27","decisionYear":2026,"opinionType":"full_commission","claimantName":"Randell Weicht","employerName":"Quality Trucking Of Little Rock","title":"WEICHT VS. QUALITY TRUCKING OF LITTLE ROCK AWCC# H404818 March 27, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Weicht_Randell_H404818_20260327.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Weicht_Randell_H404818_20260327.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H404818   \n \nRANDELL WEICHT, \nEMPLOYEE \n \nCLAIMANT \nQUALITY TRUCKING OF LITTLE ROCK,  \nEMPLOYER \n \nRESPONDENT \nBROADSPIRE SERVICES, INC., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 27, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents represented by the HONORABLE ZACHARY F. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \n \n ORDER \nBoth parties in the above-styled matter have filed motions to strike.  \nThe Full Commission takes both motions under advisement.   \nAn administrative law judge filed an opinion on November 3, 2025.  \nThe administrative law judge found, among other things, that the claimant \nproved he sustained a compensable injury.  The administrative law judge \nawarded medical treatment and temporary total disability benefits.  The \nrespondents filed a timely notice of appeal. \n Both parties have briefed the Full Commission.  Both parties have \nalso filed motions to strike.  The Full Commission takes the parties’ motions \nunder advisement pending our statutory de novo review of the entire record.  \n\nWEICHT - H404818  2\n  \n \n \nWe direct the Clerk of the Commission to place this matter on our \nsubmission docket.   \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1578,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H404818 RANDELL WEICHT, EMPLOYEE CLAIMANT QUALITY TRUCKING OF LITTLE ROCK, EMPLOYER RESPONDENT BROADSPIRE SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 27, 2026","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.817Z"},{"id":"alj-H505556-2026-03-26","awccNumber":"H505556","decisionDate":"2026-03-26","decisionYear":2026,"opinionType":"alj","claimantName":"Rodney Dehaven","employerName":"Rodney Dehaven","title":"DEHAVEN VS. RODNEY DEHAVEN AWCC# H505556 March 26, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DEHAVEN_RODNEY_H505556_20260326.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DEHAVEN_RODNEY_H505556_20260326.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H505556 \n \nRODNEY R. DEHAVEN, EMPLOYEE CLAIMANT \n \nRODNEY DEHAVEN, EMPLOYER RESPONDENT \n \nMISSOURI EMPLOYERS MUTUAL INSURANCE COMPANY, CARRIER/TPA\n RESPONDENT \n \n \n OPINION FILED MARCH 26, 2026 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \n \nClaimant represented by JARID M. KINDER, Attorney,  Fayetteville, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney,  Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January 22, 2026, the above captioned claim came on for a hearing at Springdale, Arkansas. \nA pre-hearing conference was conducted on November 21, 2025, and a pre-hearing order was filed \non that same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2. The employee/employer/carrier relationship existed on November 8, 2024. \n3. The respondents have controverted the claim in its entirety. \nAt the conclusion of the hearing, the parties also stipulated that claimant’s average weekly \nwage was $701.13, which yields a temporary total disability rate of $468.00 and a permanent partial \ndisability rate of $351.00. \n\nDehaven-H505556 \n2 \n \n \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n             1.  Whether claimant sustained a compensable injury on November 8, 2024. \n             2.  Whether claimant is entitled to medical expenses. \n All other issues are reserved by the parties. \n The  claimant  contends  that  “He  sustained  a  compensable  bilateral  shoulder  injury  on \nNovember 8, 2024, while tiling a shower in Fayetteville, Arkansas. The claimant contends that he is \nowed  medical  benefits  as  a  result  of  his  bilateral  shoulder  injury. Due  to  controversion  of  entitled \nbenefits, the respondents are obligated to pay one half of the claimant’s attorney’s fees.” \nThe respondents contend that “The claimant did not sustain a compensable injury as defined \nunder the Arkansas Workers' Compensation Act for which he is entitled to benefits.” \n           From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nNovember  21,  2025, and  contained  in  a  pre-hearing  order filed  on that  same  date,  as  well  as  the \nstipulation announced at the hearing, are hereby accepted as fact. \n 2.    Claimant has met his burden of proving that he suffered a compensable injury to his right \nand left shoulder on November 8, 2024, and is entitled to reasonable and necessary medical treatment \nfor those injuries as recommended by his treating physicians. \n \n\nDehaven-H505556 \n3 \n \n \n FACTUAL BACKGROUND \n This case is unusual in that claimant is also the respondent employer. Since the interest of the \nemployee  and  employer  are  not  adverse,  for  the  purposes  of  this  opinion,  any  reference  to \n“respondent” is to the insurance carrier Missouri Employers’ Mutual Insurance Company \nHEARING TESTIMONY \n  \nClaimant was the only witness to testify. He stated that he is 60 years old and the sole owner \nand employee of his tile installation business. He said that his job involved lifting from fifty to one \nhundred pounds every day, required him to be on his feet and knees frequently, and involved working \noverhead. Claimant said that he hurt his shoulders while he was working on a bathroom tub. Claimant \ndid not know the exact address of where he was working, but he knew it was in Fayetteville and located \nthe invoice for that job. According to claimant, the injury occurred when he was doing “a total gut of \nthe tub”, part of which involved hanging drywall. As he was placing the top piece of drywall, a five \nfoot by four foot section, he lost his balance stepping on the side of the tub. Claimant testified that \nhe did not completely fall because he regained his balance, but in doing so he felt “a jerk and a popping \nin both shoulders right and left.”  He felt soreness but was able to finish the job that day and the next \nweek he went to see Dr. Youmans, who is his primary care physician. Claimant was referred to Dr. \nBenafield  at  Ozark  Orthopedics  where  he  was  treated  with  physical  therapy  and  injections. The \nphysical therapy did not help, but the injections did relieve some pain. As of the date of the hearing, \nclaimant had surgery  on  his  right  arm  and  intends  to  have  surgery  on  the  left  when  he  has  healed \nsufficiently from the first surgery. Claimant paid for the surgery through his wife’s health insurance. \nClaimant said that although the injury occurred on November 8, 2024, he did not pursue his \nclaim until August 2025, because he had other things to do and had worked through the pain. Claimant \ndid not realize how serious the injury was before he had an MRI. Claimant conceded that he had seen \n\nDehaven-H505556 \n4 \n \n \na doctor about some shoulder pain before November 2024. He received a steroid injection and did \nnot return to the doctor for any additional treatment for his shoulder. He said that in the previous \ninstance, he had tried to toss a bag full of tile into a trash can, which stressed his arm and shoulder. \nClaimant testified that pain in 2022 was quite different than what he described regarding falling while \nholding a sheet of drywall on November 8, 2024. \nOn  cross-examination,  claimant agreed that  he  was  working  alone  that  day  and  is  the  only \nperson  who  had  any  knowledge  of  what  happened  on  the job  site on  November  8,  2024. At  his \ndeposition, claimant had not seen the invoice for that job and was not sure of the size of the tile that \nhe was installing. At the deposition, claimant said “I think they were two and a half inches by twelve \ninches of subway tile,” while the floor was twelve by twenty-four. \nClaimant stated that he carried workers’ compensation insurance because he needed it for jobs \nthat he does. He agreed that the policy told him what he needed to do as the owner of the company \nif an employee was injured. He conceded that he did not report the injury until August 2025.  \nRespondent pointed  out  that  claimant specifically  remembered  how the injuries  to  his \nshoulders occurred, but when asked about a prior hernia surgery, stated that he did not know what \ncaused it. Respondents’ attorney noted that while claimant said that his injuries occurred on Friday, \nNovember  8,  2024,  he  did  not  see  the  doctor  on  Monday  as  he  testified,  but  rather  on  Tuesday, \nNovember 12.\n1\n. Claimant was shown the report from Dr. Youmans and agreed that the report said \nthat he complained of right shoulder pain that had been present for a couple of weeks. He did not \nknow if he had mentioned anything about the left shoulder; but he did not write the report that omitted \nthat he was injured while putting up drywall five days previously. Claimant was definite that he received \nan injection in both shoulders, but the doctor’s record does not state that it was a bilateral injection. \n \n1\n I announced without objection that I was taking judicial notice of the days of the week on which those dates fell.   \n\nDehaven-H505556 \n5 \n \n \nWhen claimant was asked about his previous shoulder injury which he was treated on October 5, 2022, \nclaimant stated that he did not remember going to the doctor when he was deposed. Claimant read \nfrom Dr. Caswell’s report that he had pain in his shoulder a year ago after lifting trash, but that had \nnot really bothered him until about two weeks ago. Dr. Caswell’s report said claimant “did something, \nunsure  what  made  the pain flare.”  He  agreed  that  he  had  been  having  pain  in  his  shoulders  for  a \ncouple of weeks before he saw Dr. Youmans. Claimant acknowledged Dr. Benafield’s records showed \nthat he had had significant pain for two months as of November 26, 2024.  \nOn redirect examination, claimant explained the first time he was asked about an invoice in \nthis matter was at his deposition, and reviewing the deposition helped him remember the size of the \ntiles he was using the day he maintained he was injured. When asked why he waited so long to make \na claim for workers’ compensation, he stated that he worked through the pain until it became \nunbearable. When he received the results of the MRI, he understood that his injuries were worse than \nhe thought.  \n \nREVIEW OF THE EXHIBITS \n \n Claimant’s Exhibit #1 is one page of index and 39 pages of medical records; Respondent’s \nExhibit #1 is one page of index and nine pages of records; respondent’s Exhibit #2 is one page of \nindex and 13 pages of non-medical records; respondent’s Exhibit #3 is claimant’s deposition which \nwas taken on December 18, 2025. \n Claimant first saw Dr. Roger Youmans at Community Physicians Group on November 12, \n2024. The history of the present illness was right shoulder pain for a couple of weeks. The assessment \nwas  a  subacromial  bursitis  of  the  right  shoulder  joint, which was  injected  with  an  unspecified \nmedication. X-rays of claimant’s right and left shoulder were performed.  \n On  November  26,  2024,  claimant  saw  Dr.  Robert Benafield  regarding  a bilateral  shoulder \n\nDehaven-H505556 \n6 \n \n \nproblem. The history and physical states:  \n“He has had bilateral shoulder pain for the last two months pretty bad and on \nand off previously. It is worse on the right than the left. He went and saw his \nprimary care provider Dr. Youmans who told after x-rays that he had bone on \nbone  arthritis  and  was  referred  over.    He  has  had  pain  with abduction and \ninternal rotation and pain at night. He was given an injection by Dr. Youmans, \nbut it did not help at all.” \n \n After  examining  the  claimant, Dr.  Benafield  recorded  that  his  assessment/plan  that  his \nfindings were consistent with “impingement syndrome of the shoulders bilaterally.”  Claimant was \ngiven a corticosteroid in the subacromial space bilaterally and was given home exercises to do. Dr. \nBenafield released the claimant to return to his office as needed. \n Claimant  returned  to  Dr.  Benafield  on  February  11,  2025,  reporting  that  his  shoulder  pain \nwent away for about a month but then came back. Dr. Benafield believed that an MRI was necessary \nto assess the rotator cuff and AC joint. Claimant instead had a course of physical therapy and then \nreturned to Dr. Benafield on May 1, 2025. The physical therapy was done at the insurer’s request and \ndid not help claimant, so Dr. Benafield again requested an MRI. The MRI was not performed until \nJuly 31, 2025, and at that time showed as follows:   \nMRI of the Right Shoulder \n \nTechnique: Multiplanar, multisequence images of the right shoulder were obtained without the use of \nintravenous contrast. \n \nComparison Study: None. \n \nHistory: Right shoulder pain. \n \nFindings: \n• Rotator   Cuff: There   is   a   full-thickness   tear   involving   the   anterior   footplate   of   the \nsupraspinatus tendon at its attachment. The infraspinatus, subscapularis, and long head of the \nbiceps tendons are intact. No muscle belly atrophy or edema is noted. There is no fluid in the \nsubacromial-subdeltoid bursa. \n• Coracoacromial  Arch: The  acromion  is  Type  I.  There  are  acromioclavicular  (AC)  joint \ndegenerative  changes.  The  coracoacromial  and  coracoclavicular  ligaments  are  intact.  The \nrotator interval is unremarkable. \n\nDehaven-H505556 \n7 \n \n \n• Glenohumeral Joint: Normal glenohumeral joint articulation is observed. The glenohumeral \nligaments  are  unremarkable.  There  is  no  joint  effusion.  The  bicipital-labral  complex  is \nunremarkable. \nImpression: \n1. Full-thickness  tear  involving  the  anterior  footplate  of  the  supraspinatus  tendon  at  its \nattachment site. \n2. AC joint degenerative changes causing mass effect on the supraspinatus, which could result in \nimpingement. \n \nMRI of the Left Shoulder \n \nTechnique: Multiplanar, multisequence images of the left shoulder were obtained without the use of \nintravenous contrast. \n \nComparison Study: None. \n \nHistory: Left shoulder pain. \n \nFindings: \n• Rotator  Cuff: The  supraspinatus,  infraspinatus,  subscapularis,  and  long  head  of  the  biceps \ntendons  are  all  intact.  There  is  no  muscle  belly  atrophy  or  edema.  There  is  no  fluid  in the \nsubacromial-subdeltoid bursa. \n• Coracoacromial  Arch: There  is  a  Type  I  acromion.  There  are  acromioclavicular  (AC)  joint \ndegenerative  changes.  The  coracoacromial  and  coracoclavicular  ligaments  are  intact.  The \nrotator interval is unremarkable. \n• Glenohumeral  Joint: There  is  normal  glenohumeral  joint  articulation.  The  glenohumeral \nligaments are intact. There is no joint effusion. There is a multilobulated paralabral cyst along \nthe  anterior  inferior  margin  of  the  glenoid  measuring  up  to  1.5  cm.  An  associated  anterior \ninferior labral tear is not well seen but is suspected. \nImpression: \n1. There is a 1.5 cm multilobulated paralabral cyst adjacent to the anterior inferior margin of the \nglenoid, and an associated labral tear cannot be excluded. \n2. There are AC joint degenerative changes which could be a cause for impingement. \n \nDr. Benafield reviewed the MRI results with claimant on August 13, 2025, and surgery was  \ndiscussed, but claimant was too busy to take off work at that time, so his shoulders were injected again \nand surgery was delayed.\n2\n \nWhile  not  part  of  the  course  of  treatment  claimant  received  in  2024  and  2025,  respondent \n \n2\n There were no records submitted after that consultation; claimant testified that he had surgery on his right shoulder \non December 22, 2025, and will schedule the left shoulder surgery when his right shoulder is sufficiently healed. \n\nDehaven-H505556 \n8 \n \n \nsubmitted medical records from Dr. John Caswell at the Community Physicians Group from October \n5, 2022, in which claimant was seen for right shoulder pain. He related that about a year prior to this \nvisit, he had lifted a bag of trash with just his right arm and caused pain in his shoulder. Claimant said \nhe wasn’t too bothered by it until about 2 weeks earlier, but the pain had flared to the point that he \nsought medical treatment. He was given an injection of triamcinolone acetonide into his right deltoid.  \nThe tax records were submitted for the purpose of determining an average weekly wage, but \nas I have accepted the parties’ stipulation as to claimant’s earnings, I have made no calculations based \non those records.  \nADJUDICATION \n \nTo receive workers' compensation benefits, a claimant must establish (1) that the injury arose \nout of and in the course of the employment, (2) that the injury caused internal or external harm to the \nbody that required medical services, (3) that there is medical evidence supported by objective findings \nestablishing the injury, and (4) that the injury was caused by a specific incident and identifiable by the \ntime and place of the occurrence, Ark. Code Ann. § 11-9-102(4). Claimant bears the burden of proving \na compensable injury by a preponderance of the credible evidence, Ark. Code Ann. § 11-9-102(4)(E). \nAs I said above, it is rare that the employee and employer are the same, but not unheard of, \nsee Gilbert v. Gilbert Timber Co., 292 Ark. 124, 728 S.W.2d 507 (1987);  Vite v. Vite, 2010 Ark. App. 565, \n377 S.W.3d 453; and Baxter v. Baxter, 2012 Ark. App. 251, 413 S.W.3d 561 for claims made by sole \nproprietors.  \nApproaching respondent’s questions regarding claimant’s credibility in the order raised at the \nhearing, he was first asked about the difference in his deposition testimony regarding the size of the \ntile he was working with on the day he maintains he was injured (T. 22). Claimant responded that he \nhad not seen the invoice at the time of his deposition, but after seeing it, he realized he was using 12 \n\nDehaven-H505556 \n9 \n \n \nX 12 mosaic tile for this job instead of the 2.5 X 12 subway tile. Since claimant testified he was injured \nwhile working with drywall instead of the tiles, I’m satisfied that he did not remember exactly what \nsize of tile he was working with because that had nothing to do with his injury claim.  \nRespondent next moved to the delay in reporting the injury (T.31), which is a proper line of \ninquiry even though it did not raise a lack of notice defense\n3\n, see Tyson Foods, Inc. v. Brown, 2000 Ark. \nApp. 723, Swink v. Rest. Mgmt., 2012 Ark. App. 490. Claimant agreed that he did not file any claim until \nafter the MRI showed the extent of the damage to his shoulders. I am satisfied that claimant did not \nunderstand the extent of the damage to his shoulders until that time, and as he continued to work, he \ncould not have made a claim for disability benefits because he did not miss the requisite amount of \ntime mandated by A.C.A. §11-9-501. His wife’s insurance paid his medical expenses, eliminating the \nneed to file a claim for medical benefits.  \nClaimant was shown Dr. Youmans’ note of November 12, 2024, which recorded that he had \nright shoulder pain for a couple of weeks and made no entry of a problem with his left shoulder (T. \n36). Claimant was definite that he received an injection in both shoulders, and said he did not prepare \nthe doctor’s note, so he could not explain what was and was not contained therein. I do not know if \nclaimant received bilateral injections on that first visit, but I am convinced that he believes he did. The \nX-rays taken of both shoulders supports his contention that he reported pain in both shoulders. I also \nput no weight in claimant believing he went to the doctor on a Monday when the records show it was \nactually on a Tuesday; he did not have an unreasonable delay in seeking treatment and may have been \nat the doctor’s office at the first available appointment.  \n \n3\n Such  a  defense  would  have  failed  had  it  been  raised,  see Baxter  v.  Baxter, supra. “The  present  case  involves  an \nunusual fact pattern in that Baxter is both the employer and the employee. It is true that Baxter did not report his injury \nto  Union  Standard  Insurance  Company  until  December  27,  2006;  however,  the  notice  statute  provides  that an \nemployee  must  report  the  injury  to  his  employer,  not  his  insurance  carrier.  Moreover,  section  11-9-701(b)(1)(A) \nprovides that failure to give the notice shall not bar any claim if the employer had knowledge of the injury. Clearly, \nBaxter knew of his own injury.” \n\nDehaven-H505556 \n10 \n \n \n Somewhat problematic is claimant’s testimony  that  he  had  not  had  any  shoulder  problems \nbefore November 2024 (T. 40). The records from the same clinic where he saw Dr. Youmans show \nhe had been in to see Dr. John Caswell on October 5, 2022, for pain in his right shoulder. The records \nshow claimant went to his physician for several issues including right shoulder pain, and he received \nan injection into that shoulder. While such treatment is the kind of event many people might recall, \nthe record as a whole reflects that claimant is not a precise historian regarding dates and prior medical \nevents. There is no medical evidence that he had a pre-existing full- thickness rotator cuff tear or labral \ntear before November 8, 2024. I do not attribute his failure to recall the 2022 visit to deception, but \nrather  to  poor  memory,  and  do  not  find  that  it sufficiently undermines  his  credibility  as  to  the \noccurrence of the drywall incident and his subsequent bilateral shoulder symptoms. \n In closing argument, respondent asserted that the failure of claimant as employer to make a \ntimely report denied it the opportunity to investigate this claim.   This argument would have some \nappeal to me if respondents had identified how it was prejudiced in defending this claim by claimant \nfailing to report the day it happened. There were no witnesses to interview, no equipment to inspect \nand nothing to photograph that would have been of any value to support or refute how claimant said \nthe injury happened.  \n Working in claimant’s favor is the fact that what he described is a plausible explanation as to \nhow he was injured while working with a sheet of drywall. He reported an injury to his doctor a few \ndays after it happened and continued to receive conservative treatment thereafter. When that course \nof  treatment failed,  an  MRI  showed  the injuries to  his  shoulders required  surgery  to  correct. Both \nMRIs  documented  AC  joint  degenerative  changes.  These  degenerative  changes  are  consistent  with \nclaimant's age and his fifteen years working as a tile installer performing overhead work. However, \nAC  joint  degeneration would not  cause  a  full-thickness  supraspinatus  tear  or  a  labral  tear  with \n\nDehaven-H505556 \n11 \n \n \nparalabral cyst. These are acute traumatic injuries superimposed on underlying degenerative changes \nthat would be expected in a sixty-year-old worker in a physically demanding occupation. \n Looking at his tax records, I understand why claimant felt the need to continue working until \nhe just couldn’t; he had a net income from his business of under $36,000.00 in both 2023 and 2024. \nAs a  sole  proprietor,  he had no sick leave or other income if he wasn’t working.  In  his  role as  the \ninsured employer, claimant  should have reported  the  claim  as  soon  as  he  first  sought  medical \ntreatment. However, he is a self-employed tile installer, not a human resources officer, and I accept \nthat he only brought the claim when he understood how serious his injury was. The financial records \nsupport his  explanation  that  he  continued  working  out  of  financial  necessity  and  did  not  initially \npursue a claim because he believed he could work through the pain.  \n Weighing all the evidence before me, I find claimant met his burden of proving a compensable \ninjury on November 8, 2024. The preponderance of the evidence shows the injury arose out of and \nin the course of his employment, caused internal harm requiring medical services, was established by \nobjective MRI findings, and was caused by a specific incident identifiable by time and place.   \nORDER \n \nClaimant has met his burden of proving by a preponderance of the evidence that he suffered \na compensable injury to his right and left shoulder on November 8, 2024. Respondent is liable for \npayment  of  all  reasonable  and  necessary  medical  services  provided  in  connection  with  claimant's \ncompensable injury.  \nPursuant to A.C.A. § 11-9-715(a)(1)(B)(ii), attorney fees are awarded \"only on the amount of \ncompensation  for  indemnity  benefits  controverted  and  awarded.\" The  issue  regarding indemnity \nbenefits was reserved; therefore, no attorney fee has been awarded. Instead, claimant's attorney is free \nto voluntarily contract with the medical providers pursuant to A.C.A. § 11-9-715(a)(4). \n\nDehaven-H505556 \n12 \n \n \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \nhearing transcript in the amount of $654.00. \n \n IT IS SO ORDERED. \n \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":23955,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H505556 RODNEY R. DEHAVEN, EMPLOYEE CLAIMANT RODNEY DEHAVEN, EMPLOYER RESPONDENT MISSOURI EMPLOYERS MUTUAL INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED MARCH 26, 2026 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washingto...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["shoulder","hernia","back","rotator cuff"],"fetchedAt":"2026-05-19T22:31:16.454Z"},{"id":"alj-H408118-2026-03-26","awccNumber":"H408118","decisionDate":"2026-03-26","decisionYear":2026,"opinionType":"alj","claimantName":"Alexzander Williams","employerName":"Amazon Com Inc","title":"WILLIAMS VS. AMAZON COM INC. AWCC# H408118 March 26, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Williams_Alexzander_H408118_20260326.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Williams_Alexzander_H408118_20260326.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H408118 \n \n \nALEXZANDER WILLIAMS, EMPLOYEE CLAIMANT \n \nAMAZON COM INC., \nEMPLOYER RESPONDENT \n \nAMERICAN ZURICH INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MARCH 26, 2026 \n \nHearing before Administrative Law Judge O. Milton Fine II on March 26, 2026, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Michael  C.  Stiles,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This   matter   comes  before  the   Commission   on  the   Motion   to   Dismiss   by \nRespondents.    A  hearing  on  the  motion  was  conducted  on March 26,  2026,  in \nJonesboro, Arkansas.  No testimony was taken in the case.  Claimant, who according to \nCommission records is pro se, failed to appear at the hearing.  Admitted into evidence \nwere Commission Exhibit    1 (see Ark.    Code    Ann. § 11-9-705(a)(1)    (Repl. \n2012)(Commission must “conduct the hearing . . . in a manner which best ascertains the \nrights  of  the  parties”))  and  Respondents’  Exhibit  1, pleadings,  correspondence  and \nforms related to this claim, consisting of 20 and 11 pages, respectively. \n\nWILLIAMS – H408118 \n \n2 \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on December  17,  2024,  Claimant \npurportedly suffered an injury to his foot on December 4, 2024, in the form of dermatitis.  \nAccording  to  the  Form  AR-2  that  was also filed  on December  17,  2024,  Respondents \ncontroverted the claim. \n On July 2, 2025, through then-counsel Mark Alan Peoples, Claimant filed a Form \nAR-C.  The boxes on the form were checked to indicate that Claimant was seeking all \nmanner  of  initial  benefits in  connection  with  his alleged left  foot injury.  In an email \naccompanying this filing, Peoples stated that he was “not asking for a hearing at  this \ntime”;  but  he  did  request  a  change  of  physician  on  his client’s behalf.  Respondents \nemailed the  Commission on  July 7,  2025, stating  that  their “[p]osition hasn’t changed.”  \nRespondents’ counsel reiterated this in his email to the Commission on July 10, 2025, \nwherein  he  also  made  his  entry  of  appearance.  Two  days  later,  on July  12,  2025, \nRespondents’ counsel objected to the change-of-physician request. \n In  an email  to  the  Commission  sent  on September  7,  2025, Peoples moved  to \nwithdraw from the case.  In an Order entered on October 1, 2025, the Full Commission \ngranted the motion under AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until January 20, \n2026.    On  that  date,  Respondents  filed  the  instant  motion,  asking  for  dismissal  of  the \nclaim  under Ark.  Code  Ann.  §  11-9-702(a)(4)  &  (d)  (Repl.  2012)  and 11  C.A.R.  §  25-\n110(d) due Claimant’s failure to request a hearing in this matter.  The file was assigned \n\nWILLIAMS – H408118 \n \n3 \n \nto me on January 21, 2026; and on that same date, my office wrote Claimant, asking for \na response to the motion within 20 days.  The letter was sent by certified and first-class \nmail to the North Little Rock, Arkansas address of Claimant listed in the file and on his \nForm  AR-C.   The  certified  letter was  returned  to  the  Commission,  unclaimed, on \nFebruary 12, 2026; but the first-class mailing was not returned.  However, no response \nfrom him to  the  motion  was  forthcoming.    On February  11,  2026, a  hearing  on  the \nMotion to Dismiss was scheduled for March 26, 2026, at 10:30 a.m. at the Commission \nin  Little  Rock.   The Notice of  Hearing was  sent  to  Claimant  via first-class  and  certified \nmail  to  the same address in North  Little  Rock as  before.   In  this  instance,  the certified \nletter went unclaimed and was returned to the Commission on March 4, 2026; but once \nagain, the notice sent by first-class mail was not returned. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on March 26, \n2026.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared \nthrough counsel and argued for dismissal under the aforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other  matters \nproperly before the Commission, the following Findings of Fact and Conclusions of Law \nare hereby made in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis matter. \n\nWILLIAMS – H408118 \n \n4 \n \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under 11 C.A.R. § 25-110(d). \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  is  hereby  dismissed \nwithout prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) (formerly AWCC R. 099.13) reads: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed   for   want   of   prosecution,   the   Commission   may,   upon \nreasonable  notice  to  all  parties,  enter  an  order  dismissing  the  claim  for \nwant of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. \n2012) must prove their entitlement to the relief requested—dismissal of the claim—by a \npreponderance  of  the  evidence.    This  standard  means  the  evidence  having  greater \nweight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As  shown  by  the  evidence  recounted  above,  (1)  the  parties  were  provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon; and (2) Claimant \nhas  failed  to  pursue  his claim  because  he  has  taken  no  further  action  in  pursuit  of  it \n(including appearing at the March 26, 2026, hearing to argue against its dismissal) since \n\nWILLIAMS – H408118 \n \n5 \n \nthe  filing  of  his Form  AR-C on July 2,  2025.    Thus,  the  evidence  preponderates  that \ndismissal is warranted under § 25-110(d).  Because of this finding, the arguments made \nunder  Ark.  Code  Ann.  §  11-9-702(a)(4)  &  (d)  (Repl.  2012)  are  moot  and  will  not  be \naddressed. \n That leaves the question of whether the dismissal of the claim should be with or \nwithout  prejudice.    The  Commission  possesses  the  authority  to  dismiss  claims  with \nprejudice.  Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 \n(1988).    The  Commission  and  the  appellate  courts  have  expressed  a  preference  for \ndismissals without  prejudice.   See Professional  Adjustment  Bureau  v.  Strong,  75  Ark. \n249,  629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for  a  dismissal \nwithout prejudice.  I agree and find that the dismissal of this claim should be and hereby \nis entered without prejudice.\n1\n \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the same \ncause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7745,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H408118 ALEXZANDER WILLIAMS, EMPLOYEE CLAIMANT AMAZON COM INC., EMPLOYER RESPONDENT AMERICAN ZURICH INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 26, 2026 Hearing before Administrative Law Judge O. Milton Fine II on March 26, 2026, in Little Rock, Pulaski ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:31:18.527Z"},{"id":"alj-H504229-2026-03-24","awccNumber":"H504229","decisionDate":"2026-03-24","decisionYear":2026,"opinionType":"alj","claimantName":"Brenda Arnold","employerName":"Osceola School Dist","title":"ARNOLD VS. OSCEOLA SCHOOL DIST. AWCC# H504229 March 24, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Arnold_Brenda_H504229_20260324.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Arnold_Brenda_H504229_20260324.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H504229 \n \n \nBRENDA ARNOLD, EMPLOYEE CLAIMANT \n \nOSCEOLA SCHOOL DIST., \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCHOOL BOARDS ASSN., \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED MARCH 24, 2026 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on February  6,  2026, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented by Mr. Scott Hunter, Jr., Attorney at Law, Jonesboro, Arkansas. \n \nRespondents represented   by   Ms. Melissa   Wood,   Attorney   at   Law,   Little   Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On February  6,  2026,  the  above-captioned  claim  was heard  in Jonesboro, \nArkansas.    A  pre-hearing  conference  took  place  on September  15,  2025.   The \nPrehearing Order entered on that date pursuant to the conference was admitted without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the \nstipulations, issues, and respective contentions, as amended, were properly set forth in \nthe order. \nStipulations \n The parties discussed the stipulations set forth in Commission Exhibit 1.  After an \namendment of the fourth, they are the following, which I accept: \n\nARNOLD – H504229 \n \n2 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The  employee/self-insured employer/third-party  administrator relationship \nexisted among the parties on October 15, 2024, the alleged date of injury. \n3. Respondents have controverted this case in its entirety. \n4. Claimant’s average weekly wage entitles him to compensation rates of \n$808.00/$606.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether  Claimant sustained  compensable  injuries  to  her  neck  and  lower \nback by specific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged compensable injuries. \n3. Whether Claimant is entitled to temporary total disability benefits. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant contends that on October 15, 2024, she was changing an autistic \nchild’s pull-up  when  he  put his  arms  around  her  neck  and hung  from  her \n\nARNOLD – H504229 \n \n3 \nneck, causing immediate pain.  She saw Dr. James Adametz, who opined \nthat  she  required  a  cervical  fusion  at  C5-6  and  performed  this  surgery.  \nClaimant  has  continued  to  treat  with  Adametz,  who  has  tried  to  treat  her \nback conservatively.  Most recently, due to Dr. Adametz retiring, Claimant \nhas  seen  Dr.  Blake  Phillips.    He  has  scheduled  her  for  back  surgery  in \nSeptember. \nRespondents: \n1. Respondents contend that Claimant did not sustain a compensable injury \nto her neck or back on October 15, 2024.  Her current need for treatment \nis associated with pre-existing problems. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports, non-medical \ndocuments,  and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity  to  hear  the  testimony  of Claimant  and  to  observe  her demeanor,  I  hereby \nmake the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant has not proven  by  a  preponderance  of  the  evidence  that she \nsustained a compensable injury to her neck by specific incident. \n\nARNOLD – H504229 \n \n4 \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that she \nsustained a compensable injury to her lower back by specific incident. \n5. Because of Findings/Conclusions Nos. 3-4 supra,  the remaining issues—\nwhether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged injuries, and whether she is entitled to temporary \ntotal disability benefits and a controverted attorney’s fee—are  moot  and \nwill not be addressed. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the Prehearing Order  discussed  above,  admitted  into  evidence  in \nthis case were the following:  Claimant’s Exhibit 1, a compilation of her medical records, \nconsisting of one index pages and 60 numbered pages thereafter; Claimant’s Exhibit 2, \nnon-medical records, consisting of one index page and five numbered pages thereafter; \nRespondents’ Exhibit  1, another compilation of Claimant’s medical  records,  consisting \nof two index  pages and 54 numbered  pages  thereafter; Respondents’ Exhibit 2, non-\nmedical  records,  consisting  of  one  index  page  and  seven  numbered  pages  thereafter; \nand Respondents’ Exhibit 3, a flash drive containing video surveillance footage. \n\nARNOLD – H504229 \n \n5 \nAdjudication \nA. Compensability \n Introduction.   Claimant,  a special  education  teacher, has  argued  that she \nsuffered a compensable injury to her neck and lower back in an incident that happened \non October 15, 2024.  Respondents deny this. \n Standards.    In  order  to  prove  the  occurrence  of  an  injury  caused  by  a  specific \nincident identifiable by time and place of occurrence, a claimant must show that:  (1) an \ninjury  occurred  that  arose  out  of  and  in  the  course  of  his  employment;  (2)  the  injury \ncaused internal or external harm to the body that required medical services or resulted \nin  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence  supported  by \nobjective  findings,  which  are  those  findings  which  cannot  come  under  the  voluntary \ncontrol  of  the  patient;  and  (4)  the  injury  was  caused  by  a  specific  incident  and  is \nidentifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, 56 \nArk.   App.  126,  938  S.W.2d   876   (1997).     If  a   claimant  fails  to   establish   by   a \npreponderance  of  the  evidence  any  of  the  above  elements,  compensation  must  be \ndenied.   Id.  This  standard  means  the  evidence  having  greater  weight  or  convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agric. Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The \n\nARNOLD – H504229 \n \n6 \nCommission must sort through conflicting evidence and determine the true facts.  Id.  In \nso doing, the Commission is not required to believe the testimony of the claimant or any \nother  witness,  but may  accept  and  translate  into  findings  of  fact  only  those portions of \nthe testimony that it deems worthy of belief.  Id. \n Testimony.   By  way  of  background, Claimant testified  that she began  work  for \nRespondent Osceola School District in July 2023.  On August 30 of that year, she was \ninvolved in the following incident\n1\n at work: \nOkay.    So  I  had  been  teaching  my  class.    I  needed  to  put  up  a  poster \nboard and a large piece of paper.  And I put it in this closet that I thought I \ncould get into with no problems.  I didn’t.  There was another teacher who \ndidn’t pick up her mess, and I fell.  Oh my gosh.  I fell.  I hurt my neck, my \nback, my hip.  I could not get up.  One of my female students rant and got \n \n \n1\nThe  claim  that  is  related  to  this  matter, styled Brenda  Arnold  v.  Osceola  Sch. \nDist., AWCC No. H305860, is not before me.  However, I can take judicial notice that I \nconducted a hearing in that case on June 21, 2024, and entered an opinion on July 19, \n2024, that contained the following Findings of Fact and Conclusions of Law: \n \n1.  The  Arkansas  Workers’  Compensation  Commission  (the \n“Commission”) has jurisdiction over this claim. \n \n2. The     employee/self-insured     employer/third-party     administrator \nrelationship  existed  among  the  parties  on  August  30,  2023,  when \nClaimant suffered a compensable injury to her cervical spine. \n \n3. A preponderance of the credible evidence establishes that Claimant \nshould submit to an independent medical evaluation by Dr. Wayne \nBruffett under Ark. Code Ann. § 11-9-511(a) (Repl. 2012) because \nsuch  is  reasonable  and  necessary.    The  parties  will  work  together \nto expedite this evaluation.  The evaluation shall be at the expense \nof    Respondents.        Claimant    will    be    entitled    to    mileage \nreimbursement  for  travel  to  and  from  Dr.  Bruffett’s  office  in \naccordance with AWCC Advisory 89-2. \n \nThat decision was not appealed. \n \n\nARNOLD – H504229 \n \n7 \nthe principal.  And it didn’t take long, and an ambulance was there to pick \nme up.  They took me to Osceola Hospital. \n \nShe did not go back to work for the school district until September 2024. \n It was her testimony that that following took place on October 15, 2024: \nOkay.  At 2:30, it’s time to take two students to the restroom, and I cannot \nuse the restroom in their classroom.  There’s epoxy on the floor.  It’s very, \nvery  slick.    Do  not—cannot—want  to  fall—can’t fall.  So the classroom \nnext door, it’s not slick.  So I go in there to change them, you know, one at \na  time.    There  was  a  substitute  there  that  day,  a  substitute  for  special \neducation.    So  I  had  her  come  with  me  to see  what  goes  on  and  where \neverything is.  And so anyway, I’m sitting on my walker and I’m changing \nhis pull-up.  Well, he locks hands . . . locks hands on my neck, my already-\nhurt  neck—on  top  of  that,  my  already-hurt neck.  And I’m just yelling as \nloud as I can for the lady that’s in the classroom.  And she finally, finally \nheard me.  And she got him off my neck.  And, oh man, did it hurt.  And it’s \nhurting here, hurting all up in here.  He’s got, you know—those vertebrae\n2\n \nare  already  messed  up  .  .  .  [i]t  would,  yeah,  be  up  at  the  thoracic  spine \nto—C-spine,  thoracic  spine.    And  then  my  back—it  was  probably,  you \nknow,  the  position  I’m  in.    Because,  you  know,  I’m  bending  down  to \nchange him.  He’s an autistic student.  It’s not his fault . . . [p]oor baby.  \nBut . . . he hangs on with all his weight. \n \n Continuing,  Claimant  related  that  she  texted  the  school  principal  to  inform  her \nwhat had happened.  The next day, Claimant sought treatment at the emergency room.  \nThere,  she  was  given  medication.    Later,  she  went  to  Dr.  James  Adametz,  whom  she \ntermed “my neurosurgeon.”\n3\n  She stated that it was “perfect timing” that she was able to \nsee  him,  because  the  visit  was  a  follow-up  related  to  her  other  claim.\n4\n  Dr.  Adametz \n \n \n2\nWhile  making  this  statement,  as  reflected  in  the  transcript,  Claimant  was \npointing to the back of her neck. \n \n \n3\nThe opinion cited in supra Note 1 reflects that Claimant treated extensively with \nAdametz in connection with AWCC No. H305860. \n \n \n4\nSee supra Note 1. \n \n\nARNOLD – H504229 \n \n8 \nadministered  her  an  injection  and  ordered  physical  therapy.    Claimant  stated  that \nneither was helpful.  In addition, an MRI was ordered. \n Eventually,  Dr.  Adametz  retired.    Thereafter,  Claimant  began  seeing  Dr.  Joel \nPhillips, another neurosurgeon.  The following exchange took place: \nQ. What kind of problems were you having with regard to your neck? \n \nA. Oh, with  the  neck,  the  motion,  the  tingling—you  got  tingling  going \nhere.  We’ve got numbness on our fingers.  We’ve got tingling.  I’m \nglad I can feel it.  I’m glad I can feel my hand.  It’s not going numb \nand it’s not tingling.  And the neck is not as tight.  Muscle spasms \nare not as tight. \n \nShe now has limited range of motion in her neck.  While she has no problems lowering \nher head, she is limited concerning how far she can raise it or turn it to the left and right. \n As  for  her  back,  Claimant  testified  that  Dr.  Phillips  performed  a  spinal  fusion in \nSeptember  2025.   As  to  her  present  back  condition,  she  related  that  “things  have \nimproved.”  However, she is still in physical therapy, and still has trouble raising her legs \nwhile walking. \n On cross-examination, Claimant agreed that she has pre-existing issues with her \nneck.  In 1991, she fractured C6 when she leapt from a moving automobile to escape a \ndomestic  assault.    In approximately  2014,  Claimant  sustained  whiplash  when  she  was \nstruck  from  the  rear  in  a  motor  vehicle  accident.   While  employed  by  the  Arkansas \nDepartment of Correction, her neck was injured during a training exercise.  Finally, Dr. \nAdametz had recommended surgery in connection with the neck injury she suffered as \npart  of AWCC  No.  H305860, which  led  to  the  hearing concerning  whether  she  should \nsubmit to an independent medical evaluation by Dr. Wayne Bruffett. \n\nARNOLD – H504229 \n \n9 \n Claimant  agreed  that  when  she  went  to  Dr.  Adametz  following  the  pull-up \nchanging incident, per his note, there was no change in her symptoms.  For that reason, \nhe  wanted  her  to  undergo  a  repeat  MRI.   She  agreed  that  her  medical  records  in \nevidence reflect that she had previously complained of neck and back pain, along with \nan  intermittent  electric  shock-type  sensation  in  her  lower  extremities.   Claimant  had \nbeen treated with a lumbar steroid injection on January 30, 2024. \n While  Claimant  testified  initially  that  she  had  not  discussed  undergoing  neck \nsurgery  with  Adametz,  she  later  acknowledged  that  this  very  thing  was  the  subject  of \nthe earlier  hearing on AWCC  No.  H305860.  However,  she  stated that the  repeat  MRI \nrevealed a cervical herniation at one level and a protrusion at another. \n Pre-incident records.  The medical records in evidence reflect that on September \n11, 2023, Claimant underwent a lumbar MRI that showed grade 1 anterolisthesis of L4-\n5 with degenerative change and degenerative changes to her lower lumbar facet joints.  \nShe reported to Dr. Adametz on October 17, 2023, that she fell at work on August 30, \n2023.    Claimant  presented  with  back  pain  and  neck  pain/numbness.   Adametz  wrote \nthat she also underwent a cervical MRI that showed “a significant abnormality at C5-6 is \n[sic] probably combination of osteophyte disc as well as a degenerative disc . . . [along \nwith] a small right C4-5 disc herniation and a [possible] slight sublux[ation] at that level.” \n A CT scan that was performed on September 20, 2023, was read by Dr. Barbara \nRodrigues  to  show  only  degenerative  changes.    In  addition  to  straightening  of  the \nnormal lordotic curvature, the MRI showed “bilateral facet hypertrophy, worse on the \nleft, with minimal central disc protrusion, without spinal stenosis,” at C4-5; and “posterior \n\nARNOLD – H504229 \n \n10 \nlateral osteophyte  with facet hypertrophy, causing narrowing of bilateral neuroforamen, \nwith AP diameter spinal canal 8.7 mm, with spinal stenosis, and limited evaluation due \nto streaking artifact,” at C5-6.  The  CT  scan  of  the  lumbar  spine,  performed  the  same \nday, yielded only degenerative findings. \n On  October  26,  2023,  the  doctor  wrote  that  her  x-rays showed a “degenerative \ndisc at C5-6 and a minimal angulation at C4-5 but not truly a subluxation in the cervical \nspine.”    He  added  that  her  lumbar  x-rays  revealed  that  “she  does  have  a  mild \nspondylolisthesis  at  L4-5,” and specified that this lumbar condition was degenerative.  \nOn November 14, 2023, Dr. Adametz wrote: \nI  reviewed  her  MRI  of  the  cervical  spine  again[.]    [S]he  has  a  severe \nspondylosis  at  C5-6  with  degenerative  disc  and  osteophyte  but  she  also \nprobably has a small disc protrusion at C4-5 eccentric to the right side and \non  x-ray  there  is  certainly  some  angulation  there  at  C4-5 .  .  .  [h]er  low \nback is also bothering her a lot and on x-ray continues she has at least a \nlittle bit of a spondylolisthesis at L4-5 so I think we should get an MRI scan \nof the lumbar spine. \n \nClaimant  underwent  a  lumbar  MRI.    In  addressing  its  findings  on  December  19,  2023, \nAdametz stated: \nWe  did  an  MRI  of  the  lumbar  spine  and  she  does  have  probably  some \nstenosis  at  L3-4  and  L4-5.    It  looks  like she  may  be  even  getting  a \nspondylolisthesis at L4-5 so we will get some standing flexion-extension x-\nrays.  There are disc protrusions at both L3-4 and L4-5. \n \nWhen the doctor saw Claimant on January 30, 2024, he wrote: \nI  reviewed  her  [November  2023  cervical]  MRI  scan  again  and  at  C4-5[.]  \n[S]he  does  have  a  right  paracentral  disc  herniation  is  gone  [sic]  a  little \nsuperior to the disc space and is behind the body of [C]4.  At C5-6 she has \na  degenerative  disc  and  spondylosis  with  osteophytes  on  both  sides  but \nalso  a  large  bulge  of  the  disc  on  top  of  it  and  that  may  have  been  what \nmade this become symptomatic.  She says she cannot live with [t]his neck \npain and  so  I  recommend doing  a discectomy  at  C4-5 and  C5-6.    To  get \n\nARNOLD – H504229 \n \n11 \nout the osteophyte in the disc herniation especially is gone [sic] behind C4 \nI did not have the do [sic] partial corpectomies of C4, C5 and C6 and then \nfuse it with allograft and a plate. \n \nHe gave her a lumbar epidural steroid injection. \n During  Claimant’s  return  visit  to  Dr.  Adametz  on  March  28,  2024,  it  was \ndiscussed  that  her  cervical  surgery  had  not  taken  place  because  the  workers’ \ncompensation  insurance  carrier  had  not  yet  approved  it.   The  doctor  wrote  that  he \nreevaluated her lumbar MRI and noted that “she does have slight bulging disc at both \nL3-4 and L4-5 with some canal stenosis.”  He went on to describe her lumbar findings \nas “fairly mild.” \n During her July 23, 2024, appointment with Adametz, he wrote that he “reviewed \nher  [December  2023]  MRI  of  her  lumbar  spine  she  [sic]  has  a  small  disc  protrusion  is \n[sic] mild spondylolisthesis at L4-5 that does cause some canal stenosis.  There is even \nslight abnormality at L3-4.” \n Post-incident records.  The record of Claimant’s return visit to Dr. Adametz after \nthe alleged incident reads in pertinent part: \nShe came back [to] the office on October 22, 2024.  Since I last saw her \nthey had her see another doctor who thought she should be able to return \nto  work  so  she  did.    She  actually  was  put  in  with  kindergarten  students \nthough and then one of them grabbed her by the neck and she states that \nflared up her neck  and made  [it]  even  worse.   She  hurts  in  her  neck  and \nand  [sic]  both  shoulders.    She  [has]  decided  to  give  up  on  this  being  a \nWorkmen’s [sic] Comp. case and settle that [sic] wants to go ahead with \njust  treatment .  .  .  [s]he  has  not  had  a  change  in  her  symptoms  and  her \nMRI scan [is] a year old so I feel like we really need to get a new MRI scan \nbefore making a final decision. \n \nClaimant underwent another cervical MRI on November 12, 2024.  Adametz wrote: \n\nARNOLD – H504229 \n \n12 \nWe did a new MRI scan and it shows multiple abnormalities.  The worst 1 \nis at C5-6 which she has a combination of spondylosis and disc herniation \nthat does narrow the canal and causes severe bilateral foraminal stenosis.  \nAt  C4-5  she  has  a  broad-based  right-sided  disc  protrusion  that  does \nindent  the  thecal  sac  and  is  close  to  the  spinal  cord.    She  has  minor \nbulging  disc  at  both  C3-4  and  C6-7.    I  talked  [to]  her  about  options  and \nshe  is  ready  to  go  ahead  with  surgery[.]    I  would  end  up  performing  an \nanterior cervical discectomy at C4-5 and C5-6.  I would have to do partial \ncorpectomies because the C5-6 disc space is so narrowed and she has a \nlarge osteophytes [sic].  I would then fuse it with a[n] allograft and a plate. \n \nThe cervical fusion surgery took place on November 20, 2024.\n5\n  When Claimant saw Dr. \nAdametz again on December 17, 2024, she reported that while she has experienced “a \nlittle neck spasm,” the numbness in her hands and arms has been alleviated. \n The report of her visit to Adametz on May 6, 2025, reads in pertinent part: \nThis lady had a Workmen’s Comp. injury and [I] operated  on  her  neck.  \nShe [has] actually  done  pretty  good  with  that  but  she  still  has  low  back \nproblems.  She had an MRI scan back in 2023 when this first happened[.]  \n[S]he  had  a  bulging  disc  at  L4-5  with  some  facet  arthritis  and  mild  canal \nstenosis.  At the moment she hurts mostly off to the right side and some of \nthis does seem to localize to the sacroiliac joint.  She has had some kind \nof injection by her pain management doctor but has not been very happy \nwith him and so wonder[s] if I can do anything.  It is unclear to me whether \nthis can be Workmen’s Comp. or her ambulator [sic] now  but  ambulator \nalways  require[s]  some  physical  therapy  for  their  pretty  much  so  we  will \nstart by putting her in some PT for a little bit and see how that does.  If she \nstill ha[s] a lot of pain or around her SI joint I may try an injection of that or \nshe  starts getting  more  pain  down  her  leg and I  will  repeat  an  MRI  scan.  \nAs far as her neck goes as you feel like she has reached maximal medical \nimprovement  she  also  asked  about  an  impairment  rating  and  she  has  2 \nruptured disc[s] in her neck and so that qualifies her for an 8% permanent \npartial impairment to the body as a whole. \n \n On September 17, 2025, Claimant again underwent surgery, this time in the form \nof a fusion at L4-5. \n \n \n5\nThe surgical report is not in evidence. \n\nARNOLD – H504229 \n \n13 \n Discussion.  What must be determined initially is whether Claimant has objective \nfindings  of her alleged  neck  and  lower  back  injuries.    Unquestionably, she  has  had \nproblems  with  both  of these  regions  of  her  spine;  she  has undergone  fusions  of  C4-5, \nC5-6, and L4-5.  But does she possess findings of injuries to these body parts that were \nnot present until after the October 15, 2024, pull-up changing incident at the school? \n With respect to her lumbar spine, I note that there are no new findings of injury, \npost-October 15, 2024.  Her May 6, 2025, report by Dr. Adametz is the only one in that \nperiod that  even addresses  her  lower back.    But  all  he does  in  this  report  is  reference \nher  2023  MRI,  which  showed  her  to  have  “a  bulging  disc  at  L4-5  with  some  facet \narthritis and mild canal stenosis.”  She has not proven that she has objective findings of \na  lower  back  injury  that can  be  tied  to  the  alleged  changing  incident.   For  that  reason, \nthis portion of her claim must fail at the outset. \n As  for  her  alleged  neck  injury,  her  November  12,  2024,  cervical  MRI—taken  28 \ndays  after  the  incident  at  issue—showed  that  Claimant  had  degenerative  findings \n(“minor bulging”) at C3-4 and C6-7.  Her more serious findings were at C4-5 and C5-6.  \nAccording to the above MRI, her condition at C4-5 as of November 2024 consisted of “a \nbroad-based  right-sided  disc protrusion  that does  indent the  thecal  sac and  is  close  to \nthe  spinal  cord.”   But when  Claimant  went to  Dr.  Adametz  on  October  17,  2023—\napproximately  one  year  before  the  incident  at  issue—he wrote  that her cervical  MRI \nrevealed “a small right C4-5  disc  herniation and  a [possible]  slight  sublux[ation] at  that \nlevel.”  Thus, her C4-5 findings are not new ones. \n\nARNOLD – H504229 \n \n14 \n The same is also true of her C5-6 condition.  Dr. Adametz wrote that Claimant’s \nNovember  12,  2024,  MRI  showed her to have “a combination of spondylosis and disc \nherniation that does narrow the canal and causes severe bilateral foraminal stenosis” at \nthat level.  However, Claimant’s medical records show that is condition is likewise pre-\nexisting.    On  January  30,  2024,  Adametz  wrote:    “I  reviewed  her  [November  2023 \ncervical] MRI scan again and . . . [a]t C5-6 she has a degenerative disc and spondylosis \nwith  osteophytes  on  both  sides  but  also  a  large  bulge  of  the  disc  on  top  of  it  and  that \nmay have been what made this become symptomatic.”  There is no material difference \nbetween her radiological findings at this level, pre and post-incident.  Consequently, she \ncannot, and has not, established that she suffered a compensable neck injury. \nB. Remaining Issues \n Because  Claimant  has  not  proven  that  she  sustained  a  compensable  neck  or \nlower  back  injury  herein,  the  remaining  issues—whether  she  is  entitled  to  reasonable \nand necessary medical treatment of her alleged injuries, and whether she is entitled to \ntemporary total disability benefits and a controverted attorney’s fee—are  moot  and  will \nnot be addressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":25781,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H504229 BRENDA ARNOLD, EMPLOYEE CLAIMANT OSCEOLA SCHOOL DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCHOOL BOARDS ASSN., THIRD-PARTY ADM’R RESPONDENT OPINION FILED MARCH 24, 2026 Hearing before Administrative Law Judge O. Milton Fine II on February 6, 2026, ...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1","denied:1"],"injuryKeywords":["neck","back","cervical","hip","thoracic","lumbar"],"fetchedAt":"2026-05-19T22:31:10.105Z"},{"id":"alj-H405394-2026-03-24","awccNumber":"H405394","decisionDate":"2026-03-24","decisionYear":2026,"opinionType":"alj","claimantName":"Regina Moore","employerName":"Pernod Ricard USA, LLC","title":"MOORE VS. PERNOD RICARD USA, LLC AWCC# H405394 March 24, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MOORE_REGINA_H405394_20260324.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOORE_REGINA_H405394_20260324.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H405394 \n \nREGINA MOORE, Employee CLAIMANT \n \nPERNOD RICARD USA, LLC, Employer RESPONDENT \n \nLIBERTY INSURANCE CORP., Carrier RESPONDENT \n \n \n \n OPINION FILED MARCH 24, 2026 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by RICK BEHRING, JR., Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On August  21,  2024,  the  claimant  filed  an  AR-C  requesting  various  compensation \nbenefits in which she alleges an injury to her left hand/wrist on or about April 3, 2023. A change \nof  physician  was  requested  and  granted  on  December  3,  2024. There  has  been  no  request  for  a \nhearing and no further action was taken in this claim. \n On November  25,  2025,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim be dismissed for lack of prosecution. A hearing was scheduled for March 5, 2026. Notice \nof that hearing was sent to the claimant by certified mail, return receipt requested on January 8, \n2026. United States Postal Department records indicate that claimant received and signed for the \nnotice  on January  20,  2026. The  claimant  contacted  a  legal  advisor  with  the  Commission  and \nstated she had nothing to pursue at this time and she did not attend the hearing. \n\nMoore – H405394 \n \n-2- \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After a review of the \nrespondents’ Motion to Dismiss, the claimant’s lack of desire to pursue her claim, and her failure \nto appear at the scheduled hearing, as well as all other matters properly before the Commission, I \nfind  that  claimant  has  failed  to  prosecute  this  claim.  Therefore,  this  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2296,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H405394 REGINA MOORE, Employee CLAIMANT PERNOD RICARD USA, LLC, Employer RESPONDENT LIBERTY INSURANCE CORP., Carrier RESPONDENT OPINION FILED MARCH 24, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Cla...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T22:31:12.235Z"},{"id":"alj-H501985-2026-03-24","awccNumber":"H501985","decisionDate":"2026-03-24","decisionYear":2026,"opinionType":"alj","claimantName":"Maria Nataly-Robles","employerName":"Tyson Poultry, Inc","title":"NATALY ROBLES VS. TYSON POULTRY, INC. AWCC# H501985 March 24, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/NATALY-ROBLES_MARIA_H501985_20260324.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NATALY-ROBLES_MARIA_H501985_20260324.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H501985 \n \nMARIA NATALY ROBLES, Employee CLAIMANT \n \nTYSON POULTRY, INC., Employer RESPONDENT \n \nTYSON SHARED SERVICES, INC., Carrier RESPONDENT \n \n \n \n OPINION FILED MARCH 24, 2026 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by J. MATTHEW MAULDIN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On May 12, 2025, the claimant filed an AR-C requesting various compensation benefits \nin which she alleges an injury to her low back and left thigh on or about April 1, 2024. There has \nbeen no request for a hearing and no further action was taken in this claim. \n On November  26,  2025,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim  be  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for February  26,  2026. \nNotice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on \nDecember 19, 2025. United States Postal Department records indicate that claimant received and \nsigned for the notice on December 30, 2025. On January 2, 2026, the claimant wrote a letter to \nthe Commission stating that she did not wish to proceed with her claim at this time and did not \nobject to the dismissal of her claim. The claimant did not appear at the hearing. \n\nNataly Robles – H501985 \n \n-2- \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After a review of the \nrespondents’ Motion to Dismiss, the claimant’s lack of desire to pursue her claim, and her failure \nto appear at the scheduled hearing, as well as all other matters properly before the Commission, I \nfind  that  claimant  has  failed  to  prosecute  this  claim.  Therefore,  this  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2331,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H501985 MARIA NATALY ROBLES, Employee CLAIMANT TYSON POULTRY, INC., Employer RESPONDENT TYSON SHARED SERVICES, INC., Carrier RESPONDENT OPINION FILED MARCH 24, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkan...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:31:14.291Z"},{"id":"full_commission-H208417-2026-03-20","awccNumber":"H208417","decisionDate":"2026-03-20","decisionYear":2026,"opinionType":"full_commission","claimantName":"William Cyrus","employerName":"City Of Little Rock","title":"CYRUS VS. CITY OF LITTLE ROCK AWCC# H208417 March 20, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Cyrus_William_H208417_20260320.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Cyrus_William_H208417_20260320.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H208417  \n \nWILLIAM CYRUS, \nEMPLOYEE \n \nCLAIMANT \nCITY OF LITTLE ROCK,  \nEMPLOYER \n \nRESPONDENT \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 20, 2026  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nOctober 21, 2025.  The administrative law judge found that the claimant \nfailed to prove he was entitled to “a permanent partial disability rating.”  \nAfter reviewing the entire record de novo, the Full Commission finds that \nthe claimant proved he sustained permanent anatomical impairment in the \namount of 2%.    \nI.  HISTORY \n William Charles Cyrus, now age 61, testified that he became \nemployed with the respondents, City of Little Rock, in about April 2019.  \n\nCYRUS - H208417  2\n  \n \n \nThe parties stipulated that an employment relationship existed on \nNovember 25, 2022.  The claimant testified on direct examination: \n  Q.  And on this date, were you injured on the job? \n  A.  I was. \n  Q.  Just briefly tell the judge what happened. \nA.  Well, we had pulled up to an address that we needed to \nclean, and I jumped out of the truck before the guy that was \ndriving did.  And as I jumped out of the truck, a black Charger \ndrove up behind us and kind of pulled a little bit further to the \nside of us, and a guy come out and talked out the window and \nsat on top of the hood and start firing with a gun with a \nsilencer on it, and that’s why I was shot because I never heard \na sound.   \nQ.  And so what were you there to do?  Were y’all cleaning off \nthis lot? \nA.  We was cleaning debris off of it getting ready to cut it.   \n \n According to the record, the claimant was treated at UAMS on \nNovember 25, 2022: \nCyrus R. William is a 58 y.o. male brought in by EMS \nfollowing gsw x2 to the torso.  Patient denies LOC.  Unaware \nof attacked.  Handgun ballistics at close range.... \nCT Chest Abdomen and Pelvis \n-IMPRESSION. \n1.  Comminuted fracture on the right 8\nth\n rib as well as the right \ntransverse process and spinous process of T8 vertebra. \n2.  Bilateral pulmonary contusions are seen, greater on the \nright with right-sided hemothorax. \n3.  Active hemorrhage seen along the posterolateral 9\nth\n rib \nsuperficially, likely coming from the 9\nth\n intercostal artery.   \n4.  No acute findings within the abdomen or pelvis.   \n \n Dr. Sydney M. Hodgeson noted on November 25, 2022: \n[M]ale presenting with T6-T7 spinous process fractures and R \nT8 transverse process fracture s/p GSW that occurred around \n11:00 today. \nOther injuries:  hemothorax, rib fractures.... \n\nCYRUS - H208417  3\n  \n \n \nBack:  Ballistic wound over R lateral back and L lateral back.  \nTTP over mid-lower thoracic spine.  There are no palpable \ndeformities appreciated.... \nImaging:  CT c/a/p were independently reviewed which \ndemonstrated T6-T7 spinous process fractures and R T8 \ntransverse process fracture.   \n \n Dr. Hodgeson assessed “58 y.o. male T6-T7 spinous process \nfractures and R T8 transverse process fracture s/p GSW to the back with no \nneuro deficits.”  Dr. Hodgeson planned “No acute orthopaedic spine \nintervention” and “Non-operative management.”  Dr. David B. Bumpass co-\nsigned Dr. Hodgeson’s report. \n The claimant was discharged from UAMS on November 26, 2022 \nwith the diagnosis, “GSW, stable T spine fracture.”  The parties stipulated \nthat “the claim was accepted as compensable and certain benefits have \nbeen paid.”    \n An x-ray of the claimant’s thoracic spine was taken on December 13, \n2022 with the following findings: \nComparison is made with prior examination dated 11/26/2022.  \nThe vertebral body heights are maintained.  The alignment is \nintact.  Mild degenerative changes are stable.  Known right T8 \ntransverse and spinous process fractures are in very difficult \nto visualize.  No interval abnormalities are noted. \nImpression:  Unremarkable thoracic spine.  Known right T8 \ntransverse and spinous process fractures are difficult to \nvisualized (sic).   \n \n An APRN returned the claimant to light duty on December 13, 2022.   \nAn APRN noted on January 5, 2023: \n\nCYRUS - H208417  4\n  \n \n \nMr. Cyrus is a 58 y.o. male who presents to surgery clinic for \nfollow up after GSW to back (11/25/22) with R. rib fx, T spine, \nfx, R. hemothorax and pulm contusion.  He states that he is \ndoing well overall.  Improved ROM, breathing and pain \nmanaged adequately with PO medications.  Mild throbbing \nsoreness preset (sic) toward the end of the day, but feel he is \nable to perform daily functions without difficulties....Able to \ntake deep inspiration without any pain/difficulties.... \nCT Chest with contrast 1/4/2022 \nNo acute process within the chest.   \nHealing 7 right rib fracture and unchanged appearance of T8 \nspinous process fracture.   \n \n The APRN assessed, “Mr. Cyrus is a 58 y.o. male who presents to \nsurgery clinic for follow up after GSW to back with R. rib fx, T spine fx, R. \nhemothorax and pulm contusion.  Plan:  No need for followup at this \ntime....Ok to return to full activity per trauma perspective.” \n An x-ray of the claimant’s thoracic spine was taken on January 23, \n2023 with the following findings: \nThe known right T8 transverse process and spinous process \nfractures are again not confidently visualized on the plain \nradiographs.  The alignment and curvature of the thoracic \nspine remains stable with no interval acute vertebral body \ncollapse/compression.  Pedicles appear intact.   \nVisualized lungs are clear.  The cardiomediastinal silhouette is \nwithin normal limits.   \nImpression \nNo significant interval change since the prior radiograph.  The \nknown right T8 transverse and spinous process fractures are \nagain not confidently identified on the plain films.   \n \n Dr. Bumpass reported on January 23, 2023: \nPatient presents today for follow-up of T8 spinous process \nfracture and transverse process fracture secondary to gunshot \ninjury.  This is a worker’s compensation injury.  It occurred \n\nCYRUS - H208417  5\n  \n \n \nNovember 25, 2022.  No neurological injury.  He has had \ndefinite improvement in pain symptoms last visit in December.  \nAt this time he reports that his function has returned to normal \nand he has minimal pain.... \nImaging:  Unchanged alignment spine AP and lateral views, \nreviewed and interpreted by myself.  Cannot clearly identify \nfractures on radiographs. \nAssessment:  Healed T8 fractures, secondary to non \noperative treatment, after gunshot wound sustained \nNovember 25, 2022.   \nPlan:  This time the patient can follow up with me on an as-\nneeded basis.  He has no work restrictions.  He has no need \nfor a permanent impairment rating.  He is at maximum \nmedical improvement.   \n \n Dr. Bumpass also stated on January 23, 2023, “It is my medical \nopinion that Mr. Cyrus may return to work on 1/24/23 with no restrictions.”      \n Casey Garretson, an Occupational Therapist at Functional Testing \nCenters, Inc., provided an IMPAIRMENT EVALUATION SUMMARY on \nMarch 7, 2025: \nMr. Cyrus reports an injury at work when he was picking up \ntrash and he reports a car drove up and started shooting at \nMr. Cyrus’s co-worker, and he reports one of the bullets shot \nhim through the right side of his torso and the bullet came out \nof the other side of his torso....He reports the bullet hit his \nspine and when he full (sic) he broke a rib or two.... \nAccording to the “Guides to the Evaluation of Permanent \nImpairment, Fourth Edition”; Mr. Cyrus has a permanent \nimpairment rating of 2% of the Whole Person due to his work \nrelated injury.   \n \n A pre-hearing order was filed on June 17, 2025.  The claimant \ncontended, “The Claimant sustained compensable injuries as a result of [a] \ngunshot wound on or about November 25, 2022, in the course and scope of \n\nCYRUS - H208417  6\n  \n \n \nhis employment.  The Respondents accepted the claim and paid medical \nand indemnity benefits.  The Claimant sustained gunshot wounds in the \ncourse and scope of his employment.  He has permanent anatomical loss \nas a result of these wounds.  The Claimant contends that he is entitled to \npermanent partial disability benefits for his injuries.  The Claimant sought an \nevaluation with the Functional Testing Centers for his permanent \nimpairment.  The Claimant has been assigned a 2% impairment rating \nwhich has been controverted by Respondents.  The Claimant is either \nentitled to the 2% rating or the Commission should assess impairment in \naccordance with Arkansas law.  If the Commission finds that [it] is without \nsufficient information upon which to assess the Claimant’s impairment, it \nshould order an Independent Medical Examination in accordance with Ark. \nCode Ann. §11-9-511.  Claimant also contends that the cost of the \nimpairment evaluation with Functional Testing Centers is reasonable and \nnecessary medical treatment for which Respondents should be responsible.  \nClaimant’s attorney is entitled to attorney’s fees on all controverted \nindemnity.  All other issues are reserved.”   \n The respondents contended, “Respondents contend that all \nappropriate benefits are being paid with regard to Claimant’s compensable \ninjuries sustained on 11/25/22.  Claimant’s treating physician, Dr. Bumpass, \nindicated that he reached MMI on 1/23/23 with a 0% impairment rating.  \n\nCYRUS - H208417  7\n  \n \n \nClaimant’s rating evaluation performed by Functional Testing Centers is not \nmedical treatment, and Respondents should not be responsible for the \nsame.  Likewise, an IME is not reasonable and necessary, as permanency \nhas already been addressed by Claimant’s treating physician.” \n According to the text of the pre-hearing order, the parties agreed to \nlitigate the following issues: \n1. Average Weekly Wage.  If the parties are unable to reach \nan agreement on this issue, they are required to submit a \nbrief seven days prior to the hearing. \n2. Underpayment or overpayment of TTD. \n3. Entitlement to PPD. \n4. Reasonable and necessary medical expenses. \n5. Attorney Fees.   \n \nAfter a hearing, an administrative law judge filed an opinion on \nOctober 21, 2025.  The administrative law judge found, among other things, \nthat there was “insufficient evidence to satisfy the required burden of proof \nto show that the claimant is entitled to a permanent partial disability rating.”  \nThe administrative law judge found that a requested Independent Medical \nEvaluation was not reasonably necessary.  The claimant appeals to the Full \nCommission. \nII.  ADJUDICATION \n Permanent impairment is any functional or anatomical loss remaining \nafter the healing period has been reached.  Johnson v. Gen. Dynamics, 46 \nArk. App. 188, 878 S.W.2d 411 (1994).  The Commission has adopted the \n\nCYRUS - H208417  8\n  \n \n \nAmerican Medical Association Guides to the Evaluation of Permanent \nImpairment (4\nth\n ed. 1993) to be used in assessing anatomical impairment.  \nSee Commission Rule 34; Ark. Code Ann. §11-9-522(g)(Repl. 2012).  It is \nthe Commission’s duty, using the Guides, to determine whether the \nclaimant has proved he is entitled to a permanent anatomical impairment.  \nPolk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001). \n Any determination of the existence or extent of physical impairment \nshall be supported by objective and measurable physical findings.  Ark. \nCode Ann. §11-9-704(c)(1)(Repl. 2012).  Objective findings are those \nfindings which cannot come under the voluntary control of the patient.  Ark. \nCode Ann. §11-9-102(16)(A)(i)(Repl. 2012).  Although it is true that the \nlegislature has required medical evidence supported by objective findings to \nestablish a compensable injury, it does not follow that such evidence is \nrequired to establish each and every element of compensability.  Stephens \nTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  All that \nis required is that the medical evidence be supported by objective medical \nfindings.  Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 \n(2006).  Medical opinions addressing impairment must be stated within a \nreasonable degree of medical certainty.  Ark. Code Ann. §11-9-\n102(16)(B)(Repl. 2012). \n\nCYRUS - H208417  9\n  \n \n \n Permanent benefits shall be awarded only upon a determination that \nthe compensable injury was the major cause of the disability or impairment.  \nArk. Code Ann. §11-9-102(F)(ii)(a)(Repl. 2012).  “Major cause” means \n“more than fifty percent (50%) of the cause,” and a finding of major cause \nshall be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(Repl. 2012).  Preponderance of the evidence \nmeans the evidence having greater weight or convincing force.  \nMetropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d \n252 (2003).       \n An administrative law judge found in the present matter, “5.  That the \nClaimant is found to have reached maximum medical improvement (MMI) \non January 23, 2023, with a 0% impairment rating as assigned by his \ntreating physician and that there is insufficient evidence to satisfy the \nrequired burden of proof to show that the claimant is entitled to a permanent \npartial disability rating.”  The Full Commission does not affirm this finding.     \n The parties agreed that the claimant sustained compensable injuries \non November 25, 2022.  The claimant testified that he was performing \nclean-up work for the City of Little Rock when he was randomly shot with a \nhandgun.  The medical evidence showed that the claimant was shot twice \nin the back, once under each shoulder.  There were a number of objective \nfindings demonstrated following the compensable injury.  These objective \n\nCYRUS - H208417  10\n  \n \n \nfindings included a rib fracture, thoracic spine fracture, and pulmonary \ncontusion.  The claimant was treated nonoperatively.  Dr. Bumpass from \nUAMS released the claimant on January 23, 2023 and concluded in part, \n“He has no need for a permanent impairment rating.”  The claimant has \nsince returned to full-duty work for the respondents.     \n As we have discussed, the record contains an “IMPAIRMENT \nEVALUATION SUMMARY – Spine” prepared at Functional Testing \nCenters, Inc. on March 7, 2025.  An occupational therapist opined, \n“According to the “Guides to the Evaluation of Permanent Impairment, \nFourth Edition’:  Mr. Cyrus has a permanent impairment rating of 2% of the \nWhole Person due to his work related injury.”  A 2% permanent anatomical \nimpairment rating is fully supported by objective medical findings not within \nthe claimant’s voluntary control, including rib fractures, bilateral pulmonary \ncontusions, and hemorrhage.  The 2% percent rating is also wholly \nconsistent with the 4\nth\n Edition of the Guides at Table 75, page 3/113.  The \nFull Commission recognizes Dr. Bumpass’ conclusion that that there was \n“no need for a permanent impairment rating.”  Nevertheless, the \nCommission has the duty of weighing medical evidence and, if the evidence \nis conflicting, its resolution is a question of fact for the Commission.  Green \nBay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).  It is \nwithin the Commission’s province to weigh all of the medical evidence and \n\nCYRUS - H208417  11\n  \n \n \nto determine what is most credible.  Minnesota Mining & Mfg. v. Baker, 337 \nArk. 94, 989 S.W.2d 151 (1999).  In the present matter, the Full \nCommission finds that the assessment of a 2% permanent anatomical \nimpairment rating at Functional Testing Centers is entitled to more \nevidentiary weight than Dr. Bumpass’ conclusion that there was “no need \nfor a permanent impairment rating.”   \n The Full Commission finds that the claimant proved he sustained a \n2% permanent anatomical impairment rating.  We find that the 2% rating is \nsupported by the 4\nth\n Edition of the Guides.  The 2% rating is supported by \nobjective medical findings, and evaluation at Functional Testing Centers \nwas stated within a reasonable degree of medical certainty.  The claimant \nalso proved that the compensable injury he sustained on November 25, \n2022 was the major cause of the 2% permanent anatomical impairment \nrating. \n After reviewing the entire record de novo, therefore, the Full \nCommission finds that the claimant proved he sustained 2% permanent \nanatomical impairment as a result of the compensable injury he sustained \non November 25, 2022.  The claimant proved that the evaluation at \nFunctional Testing Centers, Inc. was reasonably necessary in accordance \nwith Ark. Code Ann. §11-9-508(a)(Repl. 2012).  See Gansky v. Hi-Tech \nEng’g, 325 Ark. 163, 924 S.W.2d 790 (1996).  The claimant’s attorney is \n\nCYRUS - H208417  12\n  \n \n \nentitled to fees for legal services in accordance with Ark. Code Ann. §11-9-\n715(a)(Repl. 2012).  For prevailing on appeal, the claimant’s attorney is \nentitled to an additional fee of five hundred dollars ($500), pursuant to Ark. \nCode Ann. §11-9-715(b)(Repl. 2012).   \n IT IS SO ORDERED.     \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n I must respectfully dissent from the majority’s finding that the \nclaimant is entitled to a two percent (2%) permanent impairment rating. \n\"Permanent impairment\" has been defined as \"any permanent \nfunctional or anatomical loss remaining after the healing period has \nended.\" Carrick v. Baptist Health, 2022 Ark. App. 134, 643 S.W.3d 466 \n(2022).  \nAny determination of the existence or extent of physical impairment \nmust be supported by objective and measurable physical or mental \nfindings. Ark. Code Ann. § 11-9-704(c)(1)(B).  \"Objective findings\" are those \nfindings which cannot come under the voluntary control of the patient.  Ark \n\nCYRUS - H208417  13\n  \n \n \nCode Ann. § 11-9-102(16)(A)(i).  Complaints of pain are not to be \nconsidered objective medical findings.  Ark. Code Ann. § 11-9-\n102(16)(A)(ii)(a); Reed v. First Step, Inc., 2019 Ark. App. 289, 577 S.W.3d \n424 (2019).  \nThe Commission is authorized to decide which portions of the medical \nevidence to credit and to translate this evidence into a finding of permanent \nimpairment using the AMA Guides; thus, the Commission may assess its own \nimpairment rating rather than rely solely on its determination of the validity of \nratings assigned by physicians.  Carrick, 2022 Ark. App. 134, 643 S.W.3d 466 \n(2022).  \nIn weighing the evidence, the Commission may not arbitrarily disregard \nmedical evidence or the testimony of any witness.  Sheridan Sch. Dist. v. Wise, \n2021 Ark. App. 459,637 S.W.3d 280 (2021).  However, the Commission has the \nauthority to accept or reject medical opinions.  Williams v. Ark. Dept. of \nCommunity Corrections, 2016 Ark. App. 427, 502 S.W. 3d 530 (2016). \nFurthermore, it is the Commission's duty to use its experience and expertise in \ntranslating the testimony of medical experts into findings of fact and to draw \ninferences when testimony is open to more than a single interpretation.  Id. \nHere, although the claimant was diagnosed as having a rib fracture, a \nthoracic spine fracture, hemothorax, and pulmonary contusion, he was released \nto full duty on January 5, 2023.  \n\nCYRUS - H208417  14\n  \n \n \nA January 23, 2023 thoracic x-ray revealed that “[t]he known right T8 \ntransverse process and spinous process fractures are again not confidently \nidentified on the plain films.”  The claimant treated with Dr. David Bumpass on \nthat date.  Dr. Bumpass reported “[n]o neurological injury.  He has had definite \nimprovement in pain symptoms since last visit in December.  At this time he \nreports that his function has returned to normal and he has minimal pain.”  Dr. \nBumpass opined that the claimant had reached maximum medical improvement \non January 23, 2023, and assigned no impairment rating.  \nThe claimant has continued to work since the time of his injury, including \nwashing dishes, at Black Bear Diner before returning to work filling potholes for \nthe city of Little Rock.  He has had no problems performing either job.  The \nclaimant has no restrictions from any doctor and suffers no permanent effects \nfrom his injuries. \nThe ALJ was correct in finding that because the claimant underwent a \nfunctional capacity evaluation over two years after his injuries, there is \ninsufficient evidence to show that the claimant is entitled to a permanent \nimpairment rating.  The claimant’s treating physician did not assign an \nimpairment rating, and the claimant has worked physical jobs with no issues \nduring this time.  There is simply no evidence that the claimant suffers any \npermanent impairment from his injuries. \nAccordingly, for the reasons set forth above, I respectfully dissent. \n\nCYRUS - H208417  15\n  \n \n \n    \n    _______________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":21213,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H208417 WILLIAM CYRUS, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 20, 2026","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["fracture","back","thoracic","shoulder"],"fetchedAt":"2026-05-19T22:29:43.631Z"},{"id":"alj-H501849-2026-03-20","awccNumber":"H501849","decisionDate":"2026-03-20","decisionYear":2026,"opinionType":"alj","claimantName":"Anthony Steen","employerName":"Garland County Sheriff’s Office","title":"STEEN VS. GARLAND COUNTY SHERIFF’S OFFICE AWCC# H501849 March 20, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/STEEN_ANTHONY_H501849_20260320.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STEEN_ANTHONY_H501849_20260320.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H501849 \n \n \nANTHONY STEEN,  \nEMPLOYEE CLAIMANT \n \nGARLAND COUNTY SHERIFF’S OFFICE, \nEMPLOYER  RESPONDENT \n \nASSN. OF ARKANSAS COUNTIES  \nWORKERS’ COMPENSATION TRUST/ \nAAC RISK MGT. SERVICES, INC.,   \nCARRIER/TPA RESPONDENT \n \n \nOPINION FILED MARCH 20, 2026 \n \nPursuant to the parties’ mutual agreement and in lieu of a hearing this  claim  was submitted  for   \ndecision based on the stipulated record and briefs filed December 23, 2025, before the Arkansas \nWorkers’ Compensation Commission (the Commission), Administrative Law Judge (ALJ) Mike \nPickens, Little Rock, Pulaski County, Arkansas. \n \nThe claimant is represented by the Honorable Gregory R. Giles, Moore, Miles & Matteson, L.L.P., \nTexarkana, Miller County, Arkansas. \n \nThe respondents are represented by the Honorable Carol Lockard Worley and the Honorable Jarrod \nS. Parrish, Worley, Wood & Parrish, P.A., Little Rock, Pulaski County, Arkansas.   \n \n \nINTRODUCTION \n \nOn October 21, 2025, the above-styled claim came before Administrative Law Judge (ALJ) \nMike  Pickens  for  a  prehearing  conference. The  claimant  was  represented  by  the  Honorable \nGregory R. Giles, and the respondents were represented by the Honorable Carol Lockard Worley. \nIn lieu of a hearing the parties agreed to submit the issues to be litigated on the parties’ blue-backed \nstipulated facts, prehearing questionnaire responses, briefs, and agreed exhibits which, along with \nthe October 23, 2025, prehearing order, shall constitute the record in this matter. \n   In addition to the parties’ mutually agreed stipulated facts document contained in the record \nas Joint Exhibit 1, pages 1-3, the parties have agreed to the following stipulations:   \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n2 \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n \n2. The  employer/employee/carrier-TPA  relationship  existed  at  all  relevant  times \nincluding March 21, 2025, when the claimant sustained an admittedly compensable \ninjury in the form of a stroke/brain bleed for which the respondents paid medical \nand indemnity benefits.  \n \n3.    The claimant’s average weekly wage (AWW) was $1,037.34, which corresponds \n      to weekly indemnity rates of $692.00 for temporary total disability (TTD), and \n      $519.00 for permanent partial disability (PPD) benefits.   \n \n4. The  parties  specifically  reserve  any  and  all  other  issues  for  future  litigation  and/or \ndetermination. \n \n(Commission Exhibit 1 at 2). Pursuant to the parties’ mutual agreement, the issues litigated on the \n \naforementioned record are: \n \n1. Whether the respondents controverted this claim. \n \n2. If the respondents are deemed to have controverted this claim, whether and to what \nextent, if any, the claimant’s attorney is entitled to a controverted fee based on these \nfacts. \n \n(Comms’n Ex. 1 at 2). \n        \nThe  claimant  contends he  suffered a compensable  injury  to  his  brain,  specifically a   \nstroke/brain bleed, which occurred during a deputy sheriff qualification/training exercise in which \nhe was sprayed in his face. The claimant contends the medical treatment he has received to date \nhas been related to and reasonably necessary for treatment of his compensable injury, and that he \nis entitled to additional medical treatment at the respondents’ expense. The claimant contends he \nis  entitled  to  TTD benefits  from  March  22,  2025,  to  a  date  yet  to  be  determined. The  claimant \ncontends further that the respondents initially controverted this claim which required him to hire \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n3 \nan  attorney  to  persuade  the  respondents  to  pay  him  any workers’ compensation benefits  and, \ntherefore, his attorney is entitled to the maximum statutory attorney’s fee on the controverted \nindemnity  benefits. The  claimant  specifically  reserves  any  and  all  other  issues  for  future \ndetermination and/or litigation. (Comms’n Ex. 1 at 2-3; Claimant’s Exhibit 3 at 1-4).\nThe  respondents  contend they  did  not  controvert  this  claim  since  the  claimant  initially \nfailed and/or refused to provide them any medical documentation relating his stroke/brain bleed to \nthe subject March 21, 2025, incident until after the claimant’s attorney eventually provided them \nmedical documentation supporting causation at which time the respondents accepted the claim as \ncompensable  and  committed  to  pay  all  appropriate  medical  and  indemnity  benefits.  The \nrespondents contend they never controverted this claim since it is the claimant’s responsibility to \nobtain  and  provide  them the  necessary medical  documentation relating  the  work  incident  to  his \nalleged  injury. The respondents contend that once the claimant’s attorney provided them the \nrequired  and  necessary  medical  documentation  relating  his  injury  to  the  subject  work  incident, \ninitiated  an  independent medical records review which  led  to  their  accepting  the  claim  as \ncompensable. The respondents reserve the right to amend and supplement their contentions after \nthe completion of any and all necessary investigation and discovery, and they specifically reserve \nany  and  all  other  issues  for  future determination and/or litigation. (Comms’n  Ex.  1  at  3; \nRespondents’ Exhibit 3 at 1-8). \nSTATEMENT OF THE CASE \n \n     In  addition  to  the standard  stipulations  set forth  above,  the  parties mutually  agreed to  the \nrelevant  facts  enumerated  in  the “Proposed Stipulated Facts” document which  they both signed \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n4 \nand which is contained in the record as Joint Exhibit 1 at 1-3. I hereby incorporate these stipulated \nfacts as set forth word-for-word herein. These stipulated facts will be addressed in more detail as \nnecessary in the “Discussion” section of this opinion, infra. \n     DISCUSSION \nThe Burden of Proof \n     When deciding any issue the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2025 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Here, of course, the burden of \nproof is on the claimant to prove the respondents controverted his claim and, therefore, his attorney \nis entitled to a fee.  \n     Ark.  Code  Ann. Section  11-9-704(c)(3)  (2025  Lexis  Repl.)  states  that  the  ALJ,  the \nCommission, and the courts “shall strictly construe” the Act, which also requires them to read and \nconstrue the Act in its entirety, and to harmonize its provisions when necessary. Farmers Coop. v. \nBiles, 77 Ark. App. 1, 69 S.W.2d 899 (Ark. App. 2002). In determining whether the claimant has \nmet her burden of proof, the Commission is required to weigh the evidence impartially without \ngiving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704(c)(4) (2025 Lexis Repl.); \nGencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); \nFowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (Ark. App. 1987). \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n5 \n     All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, 35 \nArk. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, 595 \nS.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility of \nall the evidence in the record, including witness testimony. Whaley v. Hardees, 51 Ark. App. 116, \n912 S.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either any facts \ncontained in the record including but not limited to witness testimony, but may accept and translate \ninto findings of fact those portions of the record testimony it deems believable. See, McClain v. \nTexaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. App. 1989); Farmers Coop. v. Biles, supra. \nControversion \n     Pursuant to Arkansas workers’ compensation law a claim is considered “controverted” for \nthe purpose of  deeming the  respondents  liable  for  payment  of  an  attorney’s  fee  when  the \nrespondents dispute the claim in whole or in part. Arkansas law concerning controversion is long-\nstanding  and  the  subject  of  a  significant  amount  of  caselaw. While most of  the informative, \ninstructive, and significant caselaw predates the passage of Act 796 of 1993, the applicable law \nwith respect to determining when the respondents have controverted a claim for purposes of paying \nan attorney’s fee, what  factors  should  be  considered  in  making  the  determination, and  what  the \nunderlying purposes are for making the determination remain the same.  \n     Whether the respondents have controverted a claim and should be deemed responsible for \npayment of an attorney’s fee is a question of fact for the Commission to decide on a case-by-case \nbasis and is, therefore and obviously, dependent on the specific facts and circumstances of each \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n6 \ncase. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 (Ark. App. 2005); Southeast \nArk. Human Dev. Ctr., 99 Ark. App, 257 S.W.3d 554 (Ark. App. 2007); Revere Copper & Brass, \nInc., v. Tally, 7 Ark. App. 234, 647 S.W.2d 477 (Ark. App. 1983).  \n     In Aluminum  Co.  of  America  v.  Henning,  260  Ark.  699,  543  S.W.2d  480  (1976),  the \nArkansas Supreme Court (in an opinion in which renowned Arkansas Justices George Rose Smith \nand C.J. Harris participated) provides a refreshingly detailed, articulate and instructive recitation \nof   the   law   of   controversion   which   includes   the   purposes   and   rationale   underlying   the \ndetermination, as well as what factors should be considered in making the determination a claim \nhas been controverted. In Henning the court “rejected the mechanistic construction of the act that \nwould permit an employer, or carrier, to refuse  compensation until after the employee has been \nforced to employ an attorney and then escape liability for the attorney’s fees by formally advising \nthe  commission  that  it  will  not  controvert  the  claim  asserted  by  that  attorney.” Henning,  543 \nS.W.2d 480, 487.  \n     The Henning court  also  explained that  when  the  Commission  finds  a  claim  has  been \ncontroverted  in  whole  or  in  part the  respondents  are  only  responsible  for  the  amount  of  the \ncontroverted compensation; and, furthermore, even when the Commission finds the respondents \nhave not controverted the claim, but further finds the claimant’s attorney has provided bona fide \nlegal services in the claim, “the Commission shall direct the payment of such fees out of the \ncompensation awarded...And in any case where attorney’s fees are allowed by the Commission, \nthe  limitations  expressed  in the  first  sentence  herein  [Ark.  Code  Ann. Section  81-1332  (Repl. \n1960), now Ark. Code Ann. Section 11-9-715(a)(1)(B) (2025 Lexis Repl.)] shall apply. Henning, \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n7 \n243 S.W.2d 480, 485 (Bracketed material added).  \n     Citing the well-recognized and highly respected persuasive authority, Larson on Workman’s \nCompensation  Law,  the Henning court  goes  on  to  explain  the  purposes  underlying  a  finding \nrequiring the respondents to pay the employee’s/claimant’s attorney’s fees “serves legitimate \nsocial  purposes.  Among  them  are  discouraging oppressive  delay  in  recognition  of  liability, \ndeterring arbitrary or capricious denial of claims, and insuring the ability of necessitous claimants \nto obtain adequate and competent legal representation.” See, 3 Larson, Workman’s Compensation \nLaw, 15-584 through 15-611, Sections 83.10 – 83.13 (1976); Note, Workmen’s Compensation – \nAttorney’s Fees and Amount of Recovery, 8 Ark. L. Rev. 195.” Henning, 243 S.W.2d 480, 485. \n     It should also be noted that the mere fact payment of benefits is delayed does not constitute \ncontroversion per  se and there  are  other  factors  the  Commission  may  and  should  consider  in \ndetermining whether the claimant’s attorney’s services were necessitated by the actions of the \nclaimant or the respondent. See, Ridgeway Pulpwood v. Baker, 7 Ark. App. 214, 646 S.W.2d 711 \n(Ark. App. 1983); Henning, supra; Hamrick v. Colson Co., 271 Ark. 740, 610 S.W.2d 281 (1981). \n(And see, RX3 at 4-5).          \n     In summary, the Commission’s determination as to whether or not the  respondents  have \ncontroverted a claim requires a factual analysis of both the respondents’ and claimant’s conduct, \nas  well  as  the  necessity  of  litigation. Henning,  supra; Tyson’s Foods, Inc. v. Fatheree,  16  Ark. \nApp.  41,  696  S.W.2d  782  (1985); Talley,  supra. Moreover,  one (1) of  the  primary  purposes  of \nawarding attorney’s fees is to place the economic burden of litigation on the party that made the \nlitigation necessary. Lee, supra. (And see, CX3 at 1). \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n8 \n     The relevant facts in this case are undisputed. (See “Stipulations”, supra, and JX 1 at 1-3). \nThe sole issues for determination herein are whether the respondents controverted this claim for \nthe purpose of being responsible for payment of the claimant’s attorney’s fee; and if they did \ncontrovert the claim, to what extent, if any, the claimant’s attorney is entitled to a fee. Based on \nthe  applicable  law  as  applied  to  the  facts  of  this  case and explained  in  more  detail, infra, I  am \ncompelled  to  find  the claimant  has  met  his  burden  of  proof  in  demonstrating  the  respondents \ncontroverted  the  compensability  of  his  claim which  necessitated  his  hiring  an  attorney and, \ntherefore, his attorney is entitled to a fee on the controverted TTD benefits. \n     It is undisputed the claimant sustained an injury on March 21, 2025, when he was sprayed in \nthe face with pepper spray during a training exercise and that he suffered a brain bleed/stroke \nresulting in “sudden left sided paralysis of the upper extremity, left sided facial droop and tongue \ndeviation to the left with dysarthria” and he was diagnosed with “acute intraparenchymal hematoma \nin the right basal ganglia measuring up to 4.0 cm”. (JX1 at 1, Stipulated Fact 1). Relevant medical \nrecords reveal that very soon after he was sprayed with the pepper spray the claimant began \ncomplaining of a severe headache and neck pain which necessitated a visit to the CHI St. Vincent \nemergency room (ER) in Hot Springs. (Claimant’s Exhibit 2 at 1-2).  \n     The respondents were immediately aware of the injury and filed a Form AR-1, “First Report \nof Injury”, on March 24, 2025. (Respondents’ Exhibit 2 at 1). At this time the respondents became \naware of the injury and they had a duty and obligation to conduct a good faith investigation of the \nincident and alleged injury to determine whether the injury met the Act’s requirements for a \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n9 \n“compensable” injury before they filed their initial Form AR-2 accepting or denying the claim and \nstating their reasons therefor.  \n      The  facts necessary  to  establish  a  compensable  injury  were  and  are  well  known  to  the \nrespondents. For any specific-incident injury to be compensable, at a hearing the claimant must \nprove  by  a  preponderance  of  the  evidence  that  his injury:  (1)  arose  out  of  and  in  course  of  his \nemployment; (2) caused internal or external harm to his body that required medical services; (3) \nis supported    by objective findings, medical evidence, establishing the alleged injury; and (4) was \ncaused by a specific incident identifiable by time and place of occurrence. Ark. Code Ann. § 11-\n9-102(4); Cossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, \n687  (Ark.  App.  2009). The claimant  bears  the  burden  of  proving  the  compensable  injury  by  a \npreponderance of the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.  \n     Moreover, of  course, at  the  hearing the  claimant  must  prove  a  causal  relationship  exists \nbetween his employment and the alleged injury. Wal-Mart Stores, Inc., v. Westbrook, 77 Ark. App. \n167, 171, 72 S.W.3d 889, 892 (Ark. App. 2002) (citing McMillan v. U.S. Motors, 59 Ark. App. \n85, 90, 953 S.W.2d 907, 909 (Ark. App. 1997). Objective medical evidence is not always essential \nto establish a causal relationship between the work-related accident and the alleged injury where \nobjective medical evidence exists to prove the existence and extent of the underlying injury, and a \npreponderance  of  other  nonmedical  evidence  establishes  a  causal  relationship  between  the \nobjective  findings  and  the  work-related  incident  in  question. Flynn  v.  Southwest  Catering  Co., \n2010 Ark. App. 766, 379 S.W.3d 670 (Ark. App. 2010) (Emphasis added). “Objective findings” \nare those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n10 \n§ 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, at 80, 250 S.W.3d 263, at 272 \n(Ark. App. 2007).  \n     In  this  case  it is abundantly clear the claimant’s injury undoubtedly met  the  first  three  (3) \nrequirements of the Act’s definition of a compensable injury at the time the March 21, 2025, pepper \nspray incident occurred. The only reasonable question remaining was whether the claimant’s injury \n– the  stroke/brain  bleed – was  causally  related  to  the subject  March  21,  2025,  pepper  spray \nincident. Consequently,  after  receiving  notice  of  the  incident  and  alleged  injury  one  would \nreasonably expect  the  respondents to  have  immediately taken any  and  all investigatory  steps \nnecessary   for   them   to   make   an   informed   decision   concerning   causation   and, therefore, \ncompensability before they file their initial Form AR-2. Investigating the injury would consist of \naffirmative  actions like taking the claimant’s recorded statement as soon  as he was able to give \none;  interviewing  any  witness(es);  asking  the claimant  to  sign  a  medical  authorization  so  the \nrespondents  could  receive  any  and  all  relevant  medical  records  relating  to  the  March  21,  2025, \npepper  spray  incident;  speaking  to  his  doctor(s)  and  other  healthcare  providers, etc. If the \nrespondents  took  any  or  all  of  these  or  other  actions;  and if the  respondents  allege  the  claimant \nfailed to cooperate in their investigation before they filed their initial Form AR-2 on April 1, 2025, \nsummarily  denying  the  claim,  the  record  is completely devoid  of  any  evidence demonstrating \neither of these scenarios (RX2 at 2; JX1 at 2-3).  \n     The respondents contend they did not have the documentary evidence necessary to establish \ncausation/compensability until after the claim was denied, the claimant hired an attorney and filed \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n11 \na Form AR-C, discovery was conducted, the hearing/litigation process had been initiated, and they \nobtained a second opinion from Dr. Counce after which they reversed their initial position and \naccepted the claim as compensable by filing an amended form AR-2 on October 8, 2025. (RX3 at \n1-3; JX1 at 3, Stipulated Fact 22). This amended Form AR-2 finally accepting the claim as \ncompensable was filed some two (2) months after the claimant’s attorney requested a hearing, and \nsome 201 days after the claimant required and received emergency medical treatment following \nthe pepper spray incident. (CX2 at 22; CX3 at 3).    \n     Ark. Code Ann. Section 11-9-803 (2025 Lexis Replacement) is entitled “Controversion of \nright to compensation.” Section (a)(1) of this statute requires any employer who controverts a claim \nto file a form with the Commission advising in pertinent part that they are controverting the claim \nand to state their grounds for controverting the claim within 15 days of the date they received notice \nof the alleged work-related injury or death. Section (b)(1) of this statute goes on to state: \n          (b) \n             (1) If an employer is unable to obtain sufficient medical information as to the \n                alleged injury or death within fifteen (15) days following receipt of notice, \n                although the employer has acted in good faith and with all due diligence, the \n                employer may apply in writing for an extension of time for making payment \n                of the first installment or controverting the claim.  \n \n     In Sections (b)(2)-(3) this statute goes on to require the written application for an extension \nof time to be post-marked within the immediately aforementioned 15-day period, and states the \nCommission  has  the  discretion  to  grant  the  extension  request  and  to  set  a  deadline  for  the \nemployer’s response. In Section (b)(4) the statute states that the fact the employer applies “for an \nextension shall not be deemed to be a controversion of the claim.” Therefore, if the respondents \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n12 \nneeded additional time to investigate the claim before filing their initial Form AR-2 summarily \ndenying it, pursuant to the immediately foregoing statute they simply had to submit a written \nrequest for an extension of time to file the Form AR-2. The record reveals such a request for an \nextension was never filed.  \n     And while the respondents contend they could not accept the subject claim as compensable \nsince they did not have a medical opinion relating the claimant’s stroke/brain bleed to the subject \nMarch  21,  2025,  pepper  spray  incident  until  they  received  Dr. Counce’s second opinion on \nSeptember 24, 2025 (RX3 at 1-3), since objective medical evidence is not essential to establish a \ncausal relationship between the work-related accident and the alleged injury(ies) where objective \nmedical  evidence  exists  to  prove the  existence  and  extent  of  the  underlying  injury(ies),  and  a \npreponderance  of  other  nonmedical  evidence  establishes  a  causal  relationship  between  the \nobjective  injury(ies)  and  the  work-related incident in question, it is questionable that a doctor’s \nopinion concerning causation was even necessary given the known facts and circumstances of this \nclaim as established in the record. See, Flynn, supra. \n     In addition to contending they did not “controvert” this claim, the respondents also contend \nthere was no “award” of benefits and, therefore, no attorney’s fees are or can be owed. (RX3 at 5-\n7). Respectfully, this is not only inconsistent with the law of controversion and the numerous cases \ncited, supra, if this truly was the law then no claim could ever be deemed controverted before a \nhearing was held and an opinion awarding benefits was issued and filed. \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n13 \n     The only reasonable and equitable opinion that is consistent with the law of controversion \ncited above is that the respondents in fact controverted this claim for purposes of being deemed \nliable for payment of the claimant’s attorney’s fee based on any and all benefits owed to the \nclaimant pursuant to the Act beginning from the date of the claimant’s injury, March 21, 2025. The \nrespondents’ filing of the amended Form AR-2 on October 8, 2025, came too late to avoid a finding \nof controversion on these facts. To find otherwise would be to essentially hold that respondents \nneed conduct little or no investigation before denying a claim; would be contrary to the purposes \nset forth in Henning, supra; and would ignore the fact that in this case and based on the facts of \nrecord but for the involvement of the claimant’s attorney herein the respondents more likely than \nnot  would  never  have  accepted  the  claimant’s  injury  as  compensable and  paid  medical  and \nindemnity benefits. \n     Indeed, all one need do is to review the 22 stipulated facts contained in JX1, as well as the \nundisputed facts stated in both parties’ post-trial briefs (CX3 and RX3) to see the claimant’s \nattorney put a great deal of time and effort into handling this claim – and essentially did everything \nnecessary to litigate the claim – from the date he was hired in April 2025 until the date the \nrespondents finally accepted the claim as compensable on October 8, 2025. Again, as the record \nreveals, but  for the good and hard work of the claimant’s attorney more likely than not the \nrespondents would never have accepted this claim as compensable.  \n     Consequently, based on the specific facts of this claim and consistent with the law of \ncontroversion as set forth in detail, supra, a finding of controversion and award of an attorney’s fee \nis the only legal, fair and equitable decision an objective trier of fact could reach in this matter. See, \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n14 \nHenning, Talley, Lee, Hamrick, Tyson’s Foods, Ridgeway Pulpwood, et al, supra. Remember and \nplease note what our supreme court said in Henning when the court stated it:  \n           ...[R]ejected the mechanistic construction of the act that would permit an \n           employer, or carrier, to refuse compensation until after the employee has \n           been forced to employ an attorney and then escape liability for the attorney’s \n           fees by formally advising the commission that it will not controvert the claim \n           asserted by that attorney. \nHenning, 543 S.W.2d 480, 487. (Bracketed material added).     \n     Finally, consistent with one (1) of the primary purposes of awarding attorney’s fees, a finding \nof controversion and award of any attorney’s fee in this specific case places the economic burden \non the party that made the litigation necessary: here, based on the specific facts of record, the \nrespondents. Lee, supra. (And see, CX1 at 1).  \n     Therefore, for all the aforementioned reasons I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The stipulations set forth in the prehearing order filed October 23, 2025, and the \nstipulations set forth in the stipulated facts document contained in the record as \nJoint Exhibit 1 hereby are accepted as facts.  \n \n2. The claimant  has  met  his  burden  of  proof  in  demonstrating  the  respondents \ncontroverted the  compensability  of this  claim for  the  purpose  of  being  deemed \nliable for the payment of an attorney’s fee from the stipulated date of injury of \nMarch 21, 2025, through the date they finally accepted the injury as compensable, \nOctober 8, 2025.   \n \n3. Pursuant to Ark. Code Ann. Section 11-9-715(B) (2025 Lexis Supplement), the \nclaimant’s attorney is entitled to the maximum statutory attorney’s fee based on \nany  and  all TTD benefits owed  and/or  paid  to  the  claimant after  the  date  of  his \nMarch  21,  2025, compensable  injury and continuing  through  the  end  of  the \nclaimant’s healing period. \n\nAnthony Steen, AWCC No. H501849 \n \n \n \n \n15 \n \n                          AWARD \n \n     The respondents hereby are directed to pay the claimant’s attorney’s fee in accordance with \nthe “Findings of Fact and Conclusions of Law” set forth above and in Ark. Code Ann. Section 11-\n9-715(B). All accrued sums shall be paid in lump sum without discount, and this award shall earn \ninterest  at  the  legal  rate  until  paid  pursuant  to Ark.  Code  Ann. Section  11-9-809,  and Couch  v. \nFirst  State  Bank  of  Newport, 49  Ark.  App.  102,  898  S.W.2d  57  (Ark.  App.  1995); Burlington \nIndus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 (Ark. App. 1998); and Hartford Fire Ins. \nCo. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004).   \n    IT IS SO ORDERED.   \n \n \n \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":28258,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H501849 ANTHONY STEEN, EMPLOYEE CLAIMANT GARLAND COUNTY SHERIFF’S OFFICE, EMPLOYER RESPONDENT ASSN. OF ARKANSAS COUNTIES WORKERS’ COMPENSATION TRUST/ AAC RISK MGT. SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED MARCH 20, 2026 Pursuant to the parties’ ...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T22:31:08.022Z"},{"id":"alj-H504085-2026-03-19","awccNumber":"H504085","decisionDate":"2026-03-19","decisionYear":2026,"opinionType":"alj","claimantName":"Quinton Graves","employerName":"Systems, LLC","title":"GRAVES VS. SYSTEMS, LLC AWCC# H504085 March 19, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GRAVES_QUINTON_H504085_20260319.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRAVES_QUINTON_H504085_20260319.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H504085 \n \n \nQUINTON E. GRAVES,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nSYSTEMS, LLC,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nTRAVELERS INDEMNITY CO. OF CONNECTICUT/ \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED MARCH 19, 2026,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \nHearing conducted on Wednesday, March 18, 2026, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Quinton E. Graves, pro se, of Benton, Saline County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable Jason Ryburn, Ryburn Law Firm, Little Rock, \nPulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Wednesday, March 18, 2026, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and 11 C.A.R. Section 25-110(d) (2025 Code of AR Regulations), formerly cited \nas Commission Rule 099.13 (2025 Lexis Repl.) \n        On January 6, 2026, the respondents filed a motion to dismiss this claim without prejudice \nfor lack of prosecution (MTD) with the Commission. (Respondents’ Exhibit 2). The claimant was \nprovided due and legal notice of both the respondents’ MTD as well as the date, time, and place \n\nQuinton E. Graves, AWCC No. H504085 \n2 \n \nof the subject hearing; however, he failed and/or refused to respond to the respondents’ MTD in \nany way and failed and/or refused to appear at the subject hearing. (Commission Exhibit 1). \n      The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287 (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD filed November 4, 2025. Rather than recite a detailed analysis of the record, \nsuffice it to say the preponderance of the evidence introduced at the hearing and contained in the \nrecord conclusively reveals the claimant has failed and/or refused to either actively prosecute his \nclaim or to request a hearing within the last six (6) months.  \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of both the respondents’ MTD without prejudice \nfiled with the Commission on January 6, 2026, as well as due and legal notice of the date, \ntime, and place of the subject hearing, the claimant failed and/or refused to respond to the \nMTD in any way and he failed and/or refused to appear at the subject hearing. \n \n3. The claimant has not requested a hearing within the last six (6) months and has taken no \nsteps to either raise or prosecute any issue(s) in this claim.  \n \n\nQuinton E. Graves, AWCC No. H504085 \n3 \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwithout prejudice filed January 6, 2026, should be and hereby is GRANTED; and this claim \nis dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. \nCode Ann. Section 11-9-702(a) and (b) and 11 C.A.R. Section 25-110(d) (2025 Code of \nAR Regulations), formerly cited as Commission Rule 099.13. \n \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n       IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n                                                                                \n \n\nQuinton E. Graves, AWCC No. H504085 \n4","textLength":5136,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H504085 QUINTON E. GRAVES, EMPLOYEE CLAIMANT SYSTEMS, LLC, EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO. OF CONNECTICUT/ CARRIER/TPA RESPONDENT OPINION FILED MARCH 19, 2026, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE Hearing conducted on Wedn...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:31:05.930Z"},{"id":"alj-G708582-2026-03-18","awccNumber":"G708582","decisionDate":"2026-03-18","decisionYear":2026,"opinionType":"alj","claimantName":"Linda Bradley","employerName":"Pine Bluff School District","title":"BRADLEY VS. PINE BLUFF SCHOOL DISTRICT AWCC# G708582 March 18, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRADLEY_LINDA_G708582_20260318.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRADLEY_LINDA_G708582_20260318.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION\n \nCLAIM NO. \nG708582\n \n \n \nLINDA BRADLEY\n, EMPLOYEE\n \nCLAIMANT\n \n \nPINE BLUFF SCHOOL DISTRICT\n, EMPLOYER\n \nRESPONDENT\n \n \nARK SCHOOL BOARDS \nASSOC. WCT\n/\n                                                   \nRESPONDENT\n \nARKANSAS SCHOOL BOARDS ASSN.\n,\n \nCARRIER/TPA \n \n \n \n \nOPINION FILED 18 MARCH 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 12 February 2026 in Pine Bluff, Arkansas. \n \nThe pro se claimant failed to appear. \n \nWorley, Wood & Parrish, PA, Ms. Melissa Wood, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 12 February 2026. The record from the hearing consists of the \ntranscript; Respondents’ Exhibit No 1, (one index page and five additional pages of \ncorrespondence and filings); and Respondents’ Exhibit No 2 (one index page and an \nadditional nine pages of forms and filings). \nThis claim relates to compensable neck and right shoulder injuries sustained on 4 \nDecember 2017. Its procedural history consists of several hearings over the years. Most \nrecently, and after a hearing on 8 May 2025, Administrative Law Judge Chandra Black \nentered an Opinion and Order on 5 August 2025 finding that the claimant had failed to \nprove an entitlement to the additional benefits she was seeking (specifically, additional \npermanent impairment benefits and additional medical benefits). ALJ Black subsequently \n\nL. BRADLEY- G708582 \n2 \n \nentered a Nunc Pro Tunc Order on 14 August 2025 that corrected a clerical error in her \nOpinion.  \nOn 5 November 2025, the respondents requested that this claim be dismissed for the \nclaimant’s failure to prosecute her claim under the Commission Rule at 11 C.A.R. § 25-\n110(d). They argued that sufficient time had passed under the Rule without a bona fide \nrequest for a hearing on any potentially remaining issues.  \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of a hearing on the \nrespondents’ motion was sent in the same manner.  \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute her \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim is dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 12 February 2026 and presented their motion. As \nargued by the respondents at the hearing, 11 C.A.R. § 25-110(d) provides for a dismissal for \nfailure to prosecute an action upon application by either party and reasonable notice. As \nnoted above, notice of the respondents’ motion and notice of the scheduling of the hearing \nwas provided to the claimant. She has appeared in the past to litigate her case but chose \nnot to attend the hearing to object to this dismissal. \n\nL. BRADLEY- G708582 \n3 \n \nAt least eight Forms AR-C appear in the record, with the most recent being filed on \n29 February 2024. As noted above, a hearing was last held on 8 May 2025. The subsequent \nOpinion and Order was not appealed. The respondents argue that the claimant has failed to \nprosecute her claim since the adjudication of those issues. Indeed, the claimant has not \nrequested a hearing on any potential issue that remains in her claim.  \nNo objection was filed to the respondents’ motion to dismiss this claim; and the \nclaimant did not appear at the hearing to resist the dismissal of her claim. Based on the \nevidence presented, a dismissal without prejudice is appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and this claim for additional benefits is \nDISMISSED WITHOUT PREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4263,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G708582 LINDA BRADLEY , EMPLOYEE CLAIMANT PINE BLUFF SCHOOL DISTRICT , EMPLOYER RESPONDENT ARK SCHOOL BOARDS ASSOC. WCT /","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":["neck","shoulder"],"fetchedAt":"2026-05-19T22:30:59.710Z"},{"id":"alj-H502518-2026-03-18","awccNumber":"H502518","decisionDate":"2026-03-18","decisionYear":2026,"opinionType":"alj","claimantName":"Christopher Brown","employerName":"Equix Energy, Inc","title":"BROWN VS. EQUIX ENERGY, INC. AWCC# H502518 March 18, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Brown_Christopher_H502518_20260318.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brown_Christopher_H502518_20260318.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H502518 \n \nCHRISTOPHER BROWN, \nEMPLOYEE                                                                                                              CLAIMANT \n \nEQUIX ENERGY, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nXL SPECIALTY INS., \nCARRIER                                                                                                             RESPONDENT \n \nSEDGWICK CLAIMS MGMT.  \nSERVICES, INC., TPA                                                                                        RESPONDENT \n \n \nOPINION FILED MARCH 18, 2026 \n \nHearing conducted on Friday, January 16,  2026, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant is Pro Se, of Little Rock, Arkansas.  \n \nThe Respondents  were represented by Ms. Karen  McKinney, Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non October 29,  2025.    A  hearing  on  the  motion  was  conducted  on January 16,  2026,  in Forrest \nCity, Arkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a laborer. The date for Claimant’s \nalleged injury was on March 11, 2025. This incident was reported to the Respondent/Employer on \nthe same day. Admitted into evidence was Respondents’ Exhibit 1, pleadings, and correspondence, \nconsisting of 43 pages, and Commission Ex. 1, pleadings, correspondence, and U.S. Mail return \nreceipts, consisting of 9 pages, as discussed infra. \n\nBROWN, AWCC No. H502518 \n \n2 \n \nThe record reflects on April 24, 2025, a Form AR-C was filed by Claimants then-attorney, \nMark Peoples, purporting that Claimant sustained a work injury to his neck. On June 6, 2025, a \nForm AR-1 purporting that Claimant has neck pain with radiculopathy down his left arm. Also on \nJune 17, 2025, a Form AR-2 was filed denying compensability based on insufficient evidence. On \nJune 26, 2025, Claimant’s then-attorney filed a motion to withdraw as Claimant’s attorney. The \nFull Commission granted Mr. People’s motion on July 25, 2025.  \nOn October 29, 2025, Respondents filed a motion to dismiss due to a lack of prosecution, \nspecifically not complying with discovery. The Claimant was sent, on November 10, 2025, notice \nof  the  Motion  to  Dismiss, via certified  and  regular  U.S.  Mail,  to  his last  known  address.  The \ncertified motion notice was not claimed by Claimant per return receipt dated November 24, 2025. \nThis  notice was  also  sent regular  U.S.  Mail and was returned to  the  Commission. Despite \nreasonable efforts to reach Claimant, the Claimant did not respond to the Motion, in writing, as \nrequired. Thus,  in  accordance  with  applicable  Arkansas  law,  the  Claimant  was  mailed  due  and \nproper legal notice of Respondents’ Motion to Dismiss hearing date at her current address of record \nvia the United States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, \nand regular First-Class Mail, on December 10, 2025. The certified notice was not claimed as noted \nby the December 19, 2025, return receipt. Likewise, the hearing notice sent regular First-Class was \nnot returned to the Commission. The hearing took place on January 16, 2026. And as mentioned \nbefore, the Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n\nBROWN, AWCC No. H502518 \n \n3 \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the January 16, 2026, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was not claimed by Claimant, per the return postal notice bearing the December 19, 2025, \ndate. The hearing notice sent First-Class mail did not return to the Commission. The Claimant is \nresponsible for providing the Commission with their most recent address. Sending the Claimant \nnotices at their last known address of record is reasonable. Thus, I find by the preponderance of \nthe evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \n\nBROWN, AWCC No. H502518 \n \n4 \n \nAR-C on April 24, 2025. Since then, he has failed to request a bona fide hearing. Therefore, I do \nfind by the preponderance of the evidence that Claimant has failed to prosecute his claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      _____________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6241,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H502518 CHRISTOPHER BROWN, EMPLOYEE CLAIMANT EQUIX ENERGY, INC., EMPLOYER RESPONDENT XL SPECIALTY INS., CARRIER RESPONDENT SEDGWICK CLAIMS MGMT. SERVICES, INC., TPA RESPONDENT OPINION FILED MARCH 18, 2026 Hearing conducted on Friday, January 16, 2026, before ...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T22:31:01.788Z"},{"id":"alj-H401790-2026-03-18","awccNumber":"H401790","decisionDate":"2026-03-18","decisionYear":2026,"opinionType":"alj","claimantName":"Michael Collins","employerName":"10 Roads Express","title":"COLLINS VS. 10 ROADS EXPRESS AWCC# H401790 March 18, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/COLLINS_MICHAEL_H401790_20260318.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COLLINS_MICHAEL_H401790_20260318.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H401790 \n \nMICHAEL COLLINS, EMPLOYEE     CLAIMANT \nVS. \n10 ROADS EXPRESS, EMPLOYER      RESPONDENT \n \nGALLAGHER BASSETT SERVICES, INC., \nTHIRD PARTY ADMINISTRATOR     RESPONDENT \n \nOPINION AND ORDER FILED MARCH 18, 2026 \nA Hearing before Administrative Law Judge James D. Kennedy in Springdale, \nArkansas, was held on March 4, 2026. \n \nClaimant was represented by Ms. Evelyn Brooks of Fayetteville Arkansas. \n \nRespondents were represented by Rick Behring, Jr., of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A  hearing  was held  in  the  above  styled  matter  on the 4\nth\n day  of March 2026, in \nSpringdale, Arkansas, on Respondent’s Motion to Dismiss including an Incorporated \nBrief, for failure to prosecute pursuant to Arkansas Code Ann. §11-702 and Rule 099.13 \nof  the  Arkansas Workers’  Compensation Commission,  which  has  been  renamed  11 \nC.A.R. §25-110(d). The Claimant appeared and testified on his own behalf at the time of \nthe hearing and was represented by Ms. Evelyn Brooks.  \nThe  Claimant contended  that  he  had  not  been  released  from  his doctor’s care, \neven though he had been placed at MMI at the present time. Additionally, the Claimant \ncontended  that  his Respondent employer  was unable to  accommodate  his work \nrestrictions and although he had been able to find work, his income had been reduced \nsignificantly, and he was concerned about how long he would be able to work there. He \nfurther testified that the Respondent employer had actually closed and quit its business. \n\nCollins – H401790 \nBefore it closed the doors, Claimant testified that he was still employed by them, but was \nnot  working, due  to  the  fact  the Respondents were  unable  to  accommodate  his lifting \nrestriction of 35 pounds. He was making $30.00 an hour with the Respondent employer \nand is now making $17.00 an hour with his current employer. He further testified that he \nis  to  return  to  his  treating  physician  in  about  six  months,  and  earlier  if  needed. Under \ncross examination, the Claimant admitted that he was not aware of anything that had not \nbeen paid by the Respondents up to the time of the hearing and that Respondents had \neven paid for his impairment rating.  \nThe final contention by the Respondents was that the Claimant had failed to make \na  specific  request for  a  hearing.  The  Claimant  responded  that he  was still requesting \nongoing medical treatment and for other additional benefits which he might be entitled to \nin the near future. \nThe Respondents filed a copy of the Form AR-2, a C Form, as well as a Motion to \nDismiss  which  incorporated  a  Brief  in  Support  of  the  motion,  and  the  Notice  of  the \nHearing. The Claimant filed a Response to the Motion to Dismiss which included medical.  \n       ORDER \nPursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents and the Attorney for the Claimant, \nas well as the testimony of the Claimant, it is found that the Motion to Dismiss be denied \nat this time.    \nIT IS SO ORDERED.     \n             \n____________________________ \n          JAMES D. KENNEDY \n  ADMINISTRATIVE LAW JUDGE","textLength":3259,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401790 MICHAEL COLLINS, EMPLOYEE CLAIMANT VS. 10 ROADS EXPRESS, EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION AND ORDER FILED MARCH 18, 2026 A Hearing before Administrative Law Judge James D. Kennedy in ...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:31:03.860Z"},{"id":"alj-H308044-2026-03-17","awccNumber":"H308044","decisionDate":"2026-03-17","decisionYear":2026,"opinionType":"alj","claimantName":"Howard Harrison","employerName":"Northside Elementary","title":"HARRISON VS. NORTHSIDE ELEMENTARY AWCC# H308044 March 17, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HARRISON_HOWARD_H308044_20260317.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRISON_HOWARD_H308044_20260317.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H308044 \n \nHOWARD HARRISON, EMPLOYEE   CLAIMANT \n \nNORTHSIDE ELEMENTARY, EMPLOYER RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MARCH 17, 2026 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is pro se and did not attend the hearing. \n \nRespondents are represented by MELISSA WOOD, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On August 1, 2025, claimant sent a letter to the Commission, requesting a hearing without \nfiling a Form AR-C. The alleged date of injury is September 29, 2023.   Claimant was not represented \nby  an attorney  when he  requested  the  hearing and remains pro se.  He was directed  twice  to  file  a \nprehearing questionnaire (August 27, 2025, and September 30, 2025) and failed to do so.  \nOn October 28, 2025, respondent filed a Motion to Dismiss, alleging that claimant had not \nfiled  his  prehearing  questionnaire  as  directed. A  hearing  on respondent’s Motion to Dismiss was \nscheduled  for March  12, 2026,  which  was  over  six  months  since  claimant  had  requested  a  hearing.  \nNotice of the scheduled hearing was sent to claimant by certified mail at the last known address in the \nCommission’s file.  The notice was returned unclaimed on March 2, 2026.   However, claimant was \nadvised by email on February 4, 2026, of this setting.  Claimant objected to respondent’s motion but \ndid not appear in person at the hearing on March 12, 2026.   \n\nHarrison-H308044 \n \n2 \n \nI  find  it  has  been  more  than  six  months  since claimant  requested  a hearing but  did  not \nprosecute his claim as instructed.  After my review of the respondent’s motion, the claimant’s failure \nto comply with directions to file his prehearing questionnaire and his failure to attend the hearing for \nthe respondent’s motion, as well as all other matters properly before the Commission, I find that \nrespondent’s Motion to Dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission 11 C.A.R. § 25-110(d) (formerly Commission Rule 099.13) and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2430,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H308044 HOWARD HARRISON, EMPLOYEE CLAIMANT NORTHSIDE ELEMENTARY, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MARCH 17, 2026 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Wa...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:30:47.290Z"},{"id":"alj-H504493-2026-03-17","awccNumber":"H504493","decisionDate":"2026-03-17","decisionYear":2026,"opinionType":"alj","claimantName":"Yowin Mejia","employerName":"Michael Phillips","title":"MEJIA VS. MICHAEL PHILLIPS AWCC# H504493 March 17, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Mejia_Yowin_H504493_20260317.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Mejia_Yowin_H504493_20260317.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H504493 \n \n \nYOWIN MEJIA, EMPLOYEE CLAIMANT \n \nMICHAEL PHILLIPS, \nEMPLOYER RESPONDENT \n \nTECHNOLOGY INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MARCH 17, 2026 \n \nHearing before Administrative Law Judge O. Milton Fine II on March 17, 2026, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. William  C.  Frye,  Attorney  at  Law, North Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on March  17,  2026, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was  Commission  Exhibit  1  (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”),  forms,  pleadings,  and \ncorrespondence related to this claim, consisting of 13 pages. \n\nMEJIA – H504493 \n \n2 \n \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on August 4,  2025,  Claimant \npurportedly suffered injuries to his wrist and right knee on June 2, 2025, when he \nfell off the roof of a carport and landed face-down on the concrete.  According to \nthe Form AR-2 that was also filed on August 4, 2025, Respondents controverted \nthe  claim in  its  entirety.  Two  days  later,  through  counsel,  Respondents  denied \nthat Claimant was an employee of the alleged employer. \n On July 21, 2025, Claimant filed a Form AR-C, requesting initial benefits in \nthe  form  of  medical  and temporary total  disability  benefits.   Therein,  he  claimed \nthat  he  fractured  both  wrists  and  his  right  knee  in  the  alleged  fall.   No  hearing \nrequest  accompanied  this  filing.   Later,  in  an  undated handwritten  note  on \ncorrespondence  sent  to  him  by  the  Commission,  Claimant  also  claimed  a  dental \ninjury. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nJanuary 22, 2026.  On that date, Respondents filed the instant motion, asking for \ndismissal  of  the  claim under  AWCC  R. 099.13  (now  codified  at  11  C.A.R. § 25-\n110(d)).  Therein, they argued that Claimant has taken no measures to pursue his \nclaim,  including  requesting  a  hearing  thereon,  since  the  filing  of  the  Form  AR-C.  \nThe  file  was  assigned  to Administrative  Law  Judge  James  Kennedy on January \n23, 2026; and on that same date, his office wrote Claimant, asking for a response \nto the motion within 20 days.  The letter was sent by first class and certified mail \n\nMEJIA – H504493 \n \n3 \n \nto the Conway, Arkansas address for him listed in the file and on his Form AR-C.  \nBut   both   items   of   correspondence   were   returned   to   the   Commission.  \nUnsurprisingly,  no  response  from Claimant to  the  motion was  forthcoming.    On \nFebruary 13, 2026, a hearing on the Motion to Dismiss was scheduled for March \n17, 2025, at 10:30 a.m. at the Commission in Little Rock.  The Notice of Hearing \nwas sent  to  Claimant  via  first-class  and  certified  mail to  the  same  address as \nbefore.  Once again, both items were returned to the Commission. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the above authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under 11 C.A.R. § 25-110(d). \n\nMEJIA – H504493 \n \n4 \n \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the March 17, 2026, hearing to argue against \nits dismissal)  since the  filing  of  his Form  AR-C  on July  21,  2025.    Thus,  the \nevidence preponderates that dismissal is warranted under the above provision. \n\nMEJIA – H504493 \n \n5 \n \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7025,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H504493 YOWIN MEJIA, EMPLOYEE CLAIMANT MICHAEL PHILLIPS, EMPLOYER RESPONDENT TECHNOLOGY INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 17, 2026 Hearing before Administrative Law Judge O. Milton Fine II on March 17, 2026, in Little Rock, Pulaski County, Arka...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["wrist","knee"],"fetchedAt":"2026-05-19T22:30:49.357Z"},{"id":"alj-H503508-2026-03-17","awccNumber":"H503508","decisionDate":"2026-03-17","decisionYear":2026,"opinionType":"alj","claimantName":"Eunice Miller","employerName":"Dassault Falcon Jet Corp","title":"MILLER VS. DASSAULT FALCON JET CORP. AWCC# H503508 March 17, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Miller_Eunice_H503508_20260317.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Miller_Eunice_H503508_20260317.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H503508 \n \n \nEUNICE MILLER, EMPLOYEE CLAIMANT \n \nDASSAULT FALCON JET CORP., \nEMPLOYER RESPONDENT \n \nSTARR SPECIALTY INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MARCH 17, 2026 \n \nHearing before Administrative Law Judge O. Milton Fine II on March 17, 2026, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Claire Hafeez, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This   matter   comes  before  the   Commission   on  the   Motion   to   Dismiss   by \nRespondents.    A  hearing  on  the  motion  was  conducted  on March  17,  2026,  in \nJonesboro, Arkansas.  No testimony was taken in the case.  Claimant, who according to \nCommission records is pro se, failed to appear at the hearing.  Admitted into evidence \nwas Commission Exhibit 1, pleadings, correspondence and forms related to this claim, \nconsisting of 17 pages.  See Ark. Code Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission \nmust “conduct the hearing . . . in a manner which best ascertains the rights of the \nparties”). \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on June  6,  2025,  Claimant \npurportedly suffered an injury to her back on May 5, 2025, while moving boxes at work.  \n\nMILLER – H503508 \n \n2 \n \nAccording to the Form AR-2 that was filed on June 9, 2025, Respondents accepted the \nclaim as compensable and paid medical and indemnity benefits pursuant thereto. \n On June  30,  2025,  through  then-counsel Mark  Alan  Peoples,  Claimant  filed  a \nForm AR-C.  All boxes on the form were checked to indicate that Claimant was seeking \nall manner of initial and additional benefits in connection with her alleged back injury.  In  \nemails accompanying this filing, Peoples stated that he was “not asking for a hearing”; \nbut  he  did  request  a  change  of  physician  on  her  behalf.  Respondents emailed  the \nCommission on  July  3,  2025,  reiterating  that  they had  accepted  the  claim.  On August \n14,  2025,  when  the  Commission  notified  Peoples  that  Claimant  had  declined  the \nappointment  with  her  newly-assigned  physician,  counsel  withdrew  the  change-of-\nphysician request. \n In  an email  to  the  Commission  sent  on August  14,  2025, Peoples moved  to \nwithdraw  from  the  case.    In  an  Order  entered  on September  10,  2025,  the  Full \nCommission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until December \n19,  2025.    On  that  date,  Respondents  filed  the  instant  motion,  asking  for  dismissal  of \nthe  claim  under 11  C.A.R.  §  25-110(d) “due to lack of activity by the Pro Se Claimant \nand her failure to obtain counsel after Mark Peoples withdrew as counsel . . . .”  The file \nwas assigned to Administrative Law Judge James Kennedy on December 19, 2025; and \non that same date, his office wrote Claimant, asking for a response to the motion within \n20  days.    The  letter  was  sent  by certified  and first-class  mail  to  the Benton, Arkansas \n\nMILLER – H503508 \n \n3 \n \naddress  of  Claimant  listed  in  the  file  and on her Form  AR-C.   Claimant signed  for  the \ncertified  letter  on December 22,  2025;  and  the  first-class  mailing was  not  returned.  \nHowever, no response from her to the motion was forthcoming.  On February 11, 2026, \na hearing on the Motion to Dismiss was scheduled for March 17, 2026, at 10:00 a.m. at \nthe Commission  in  Little  Rock.    The Notice of  Hearing was  sent  to  Claimant  via  first-\nclass and certified mail to the same address in Benton as before.  In this instance, the \ncertified letter went unclaimed; but the one sent by first-class mail was not returned. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on March  17, \n2026.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared \nthrough counsel and argued for dismissal under the aforementioned authority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other  matters \nproperly before the Commission, the following Findings of Fact and Conclusions of Law \nare hereby made in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  her \nclaim under 11 C.A.R. § 25-110(d). \n\nMILLER – H503508 \n \n4 \n \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  is  hereby  dismissed \nwithout prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) reads: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed   for   want   of   prosecution,   the   Commission   may,   upon \nreasonable  notice  to  all  parties,  enter  an  order  dismissing  the  claim  for \nwant of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. \n2012) must prove their entitlement to the relief requested—dismissal of the claim—by a \npreponderance  of  the  evidence.    This  standard  means  the  evidence  having  greater \nweight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As  shown  by  the  evidence  recounted  above,  (1)  the  parties  were  provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon; and (2) Claimant \nhas  failed  to  pursue  her claim  because she  has  taken  no  further  action  in  pursuit  of  it \n(including  appearing  at  the January  2,  2026,  hearing  to  argue  against  its  dismissal) \nsince the filing of her Form AR-C on June 30, 2025.  Thus, the evidence preponderates \nthat dismissal is warranted under § 25-110(d). \n That leaves the question of whether the dismissal of the claim should be with or \nwithout  prejudice.    The  Commission  possesses  the  authority  to  dismiss  claims  with \n\nMILLER – H503508 \n \n5 \n \nprejudice.  Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 \n(1988).    The  Commission  and  the  appellate  courts  have  expressed  a  preference  for \ndismissals without  prejudice.   See Professional  Adjustment  Bureau  v.  Strong,  75  Ark. \n249,  629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for  a  dismissal \nwithout prejudice.  I agree and find that the dismissal of this claim should be and hereby \nis entered without prejudice.\n1\n \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the same \ncause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7430,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H503508 EUNICE MILLER, EMPLOYEE CLAIMANT DASSAULT FALCON JET CORP., EMPLOYER RESPONDENT STARR SPECIALTY INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 17, 2026 Hearing before Administrative Law Judge O. Milton Fine II on March 17, 2026, in Little Rock, Pula...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:30:51.426Z"},{"id":"alj-H402264-2026-03-17","awccNumber":"H402264","decisionDate":"2026-03-17","decisionYear":2026,"opinionType":"alj","claimantName":"Stacey Myers","employerName":"City Of Little Rock","title":"MYERS VS. CITY OF LITTLE ROCK AWCC# H402264 March 17, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Myers_Stacey_H402264_20260317.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Myers_Stacey_H402264_20260317.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H402264 \n \n \nSTACEY MYERS, EMPLOYEE CLAIMANT \n \nCITY OF LITTLE ROCK, \nSELF-INSURED EMPLOYER RESPONDENT \n \nRISK MGMT. SOLUTIONS, \nTHIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED MARCH 17, 2026 \n \nHearing before Administrative Law Judge O. Milton Fine II on March 17, 2026, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Mark Alan Peoples, Attorney at Law, Litle Rock, Arkansas \n(neither appearing). \n \nRespondents represented   by   Ms. Melissa   Wood,   Attorney   at   Law, Little   Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This   matter   comes  before  the   Commission   on  the   Motion   to   Dismiss   by \nRespondents.    A  hearing  on  the  motion  was  conducted  on March  17,  2026,  in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant failed to appear at the \nhearing;  and  her  counsel  waived  his  appearance.   Admitted  into  evidence  were \nCommission Exhibit  1 and  Respondents’  Exhibit  1,  pleadings,  correspondence  and \nforms  related  to  this  claim,  consisting  of one and nine pages,  respectively.   See Ark. \nCode Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in \na manner which best ascertains the rights of the parties”). \n\nMYERS – H402264 \n \n2 \n \n The record reflects the following procedural history: \n On July  15,  2025,  through  counsel,  Claimant  filed  a  Form  AR-C.    Therein, she \nalleged  that she suffered  post-traumatic stress disorder(“PTSD”)  and injured  her arm \nand upper body on March 26, 2024, when she was burned at work.  The boxes on the \nform  were  checked  to  indicate  that  Claimant  was  seeking  all  manner  of initial  and \nadditional benefits.  Per  the  Form  AR-2  that  was  filed  on  April  8,  2024,  Respondents \naccepted  injuries  to  the  shoulders,  chest,  abdomen,  and  cheek  and  paid  medical  and \nindemnity  benefits  pursuant  thereto.    Later,  in  a  letter  dated  September  5,  2025, \nRespondents  confirmed  that  they  have  accepted  as  compensable  not  only  all  of \nClaimant’s  burn  injuries,  but  her  PTSD  as  well.    Review  of  the  file  discloses  that \nClaimant has never requested a hearing on the claim. \n Nothing  further  took  place  on  the  claim  until March  2,  2026.    On  that  date, \nRespondents filed the instant motion, asking for dismissal of the claim under AWCC R. \n099.13 (now codified as 11 C.A.R. § 25-110(d)) and Ark. Code Ann. § 11-9-702 (Repl. \n2012) due to Claimant’s alleged failure to, inter alia, make a bona fide hearing request \nwithin the  previous six  months.   The  file  was  assigned  to Administrative  Law  Judge \nJames  Kennedy on March  2,  2026;  and  on that  same  date, his office  wrote  Claimant \nand copied her counsel, asking for a response to the motion within 20 days.  Claimant’s \ncounsel that same day by email:  “I spoke with her [Claimant] and  we  do  not  oppose \ndismissal, provided it is w/o [without] prejudice.  Thanks.” \n\nMYERS – H402264 \n \n3 \n \n On March 3, 2026, a hearing on the Motion to Dismiss was scheduled for March \n17,  2026,  at  11:00 a.m.  at  the Commission  in  Little  Rock.    The Notice of  Hearing was \nsent to Claimant’s counsel.  In response, counsel emailed the Commission on March 3, \nasked  to  be  excused  from  the  hearing.  I  am  interpreting  the  foregoing  as  a  waiver  of \nappearance by both Claimant and her attorney. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on March  17, \n2026.    Again,  Claimant and  her  counsel failed  to  appear  at  the  hearing.    But \nRespondents   appeared   through   counsel   and   argued   for   dismissal   under   the \naforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other  matters \nproperly before the Commission, the following Findings of Fact and Conclusions of Law \nare hereby made in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  her \nclaim under 11 C.A.R. § 25-110(d). \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  is  hereby  dismissed \nwithout prejudice under 11 C.A.R. § 25-110(d). \n\nMYERS – H402264 \n \n4 \n \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) reads: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed   for   want   of   prosecution,   the   Commission   may,   upon \nreasonable  notice  to  all  parties,  enter  an  order  dismissing  the  claim  for \nwant of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. \n2012) must prove their entitlement to the relief requested—dismissal of the claim—by a \npreponderance  of  the  evidence.    This  standard  means  the  evidence  having  greater \nweight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As  shown  by  the  evidence  recounted  above,  (1)  the  parties  were  provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon; and (2) Claimant \nhas  failed  to  pursue  her claim  because she  has  taken  no  further  action  in  pursuit  of  it \nsince the  filing  of  her  Form  AR-C on September  2,  2025.    Thus,  the  evidence \npreponderates that dismissal is warranted under § 25-110(d).  Because of this finding, it \nis unnecessary to address the application of Ark. Code Ann. § 11-9-702(d) (Repl. 2012). \n That leaves the question of whether the dismissal of the claim should be with or \nwithout  prejudice.    The  Commission  possesses  the  authority  to  dismiss  claims  with \nprejudice.  Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 \n(1988).    The  Commission  and  the  appellate  courts  have  expressed  a  preference  for \n\nMYERS – H402264 \n \n5 \n \ndismissals without  prejudice.   See Professional  Adjustment  Bureau  v.  Strong,  75  Ark. \n249,  629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for  a  dismissal \nwithout prejudice; and Claimant (through counsel) indicated that his client did not object \nto this.  I agree and find that the dismissal of this claim should be and hereby is entered \nwithout prejudice.\n1\n \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the same \ncause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7186,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H402264 STACEY MYERS, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, SELF-INSURED EMPLOYER RESPONDENT RISK MGMT. SOLUTIONS, THIRD-PARTY ADM’R RESPONDENT OPINION FILED MARCH 17, 2026 Hearing before Administrative Law Judge O. Milton Fine II on March 17, 2026, in Littl...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:30:53.492Z"},{"id":"alj-H407145-2026-03-17","awccNumber":"H407145","decisionDate":"2026-03-17","decisionYear":2026,"opinionType":"alj","claimantName":"Aneisha Porchia","employerName":"Silver Oaks Health & Rehab","title":"PORCHIA VS. SILVER OAKS HEALTH & REHAB AWCC# H407145 March 17, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PORCHIA_ANEISHA_H407145_20260317.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PORCHIA_ANEISHA_H407145_20260317.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H407145 \n \n \n \nANEISHA PORCHIA,  \nEMPLOYEE CLAIMANT \n \nSILVER OAKS HEALTH & REHAB, \nEMPLOYER  RESPONDENT \n \nARKANSAS NURSING HOME SELF-INSURED TRUST/  \nASIT-CCMSI,  \nINSURANCE CARRIER/TPA RESPONDENT \n \n \n \nOPINION FILED MARCH 17, 2026 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative Law Judge (ALJ) Mike Pickens on December 19, 2025, in Camden, Ouachita \nCounty, Arkansas.  \n \nThe claimant, Ms. Aneisha Porchia, of Magnolia, Columbia County, Arkansas, appeared pro se.  \n \nThe respondents were represented by Ms. Melissa Wood, Worley, Wood & Parrish, Little Rock, \nPulaski County, Arkansas.  \n \nINTRODUCTION \n \nIn  the  prehearing  order filed  November  7,  2025, the  parties  agreed  to  the  following \nstipulations which they affirmed on the record at the hearing:   \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n \n2. The  employer/employee/carrier-TPA  relationship  existed  at  all  relevant  times \nincluding September   26,   2024, when   the   claimant   sustained admittedly \ncompensable injuries to  her neck  and lower back for which the respondents paid \nboth medical and indemnity benefits.  \n \n 3.  The claimant’s average weekly wage (AWW) is $396.06 which corresponds to  \n weekly  indemnity  rates  of  $264.00 for  temporary  total  disability  (TTD),  and \n$198.00 for permanent partial disability (PPD) benefits.  \n\nAneisha Portia, AWCC No. H407145 \n \n \n \n2 \n \n 4. The Commission granted the claimant her one (1)-time-only change of physician \n            (COP) by Order dated February 4, 2025.  \n \n 5. The respondents controvert this claim in its entirety. \n6. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Commission Exhibit 1 at 2; Reporter’s Transcript at 5-6). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were: \n \n1. Whether the claimant is entitled to additional medical treatment in the form of more \nphysical therapy (PT) and/or other unspecified treatment.  \n \n2. If  she  retains  an  attorney,  whether,  and  to  what  extent,  if  any, the claimant’s \nattorney is entitled to a controverted fee based on these facts. \n \n \n(Comms’n Ex. 1 at 2; T. 5-6).  \n \nThe  claimant  contends she  failed  to  receive  the  proper  care  and  was  rushed  backed  into \nwork. She contends she still has trouble with pain, and that she is entitled to additional medical \ntreatment in the form of PT and/or unspecified treatment. (Comms’n Ex. 1 at 3; T. 5-6). \nThe  respondents  contend the  claimant’s  physician released her as  having  reached \nmaximum  medical  improvement (MMI) as  of December  11,  2024,  and  opined  she  had  no/zero \npercent (0%) permanent anatomical impairment. The respondents further contend the Commission \ngranted her COP evaluation and that it was the COP physician who released her and opined she \nhad reached MMI and had 0% permanent anatomical impairment. The respondents contend that \nno physician has recommended any additional medical treatment for her compensable neck and \nlower back injuries. Therefore, the respondents contend that the claimant cannot meet her statutory \n\nAneisha Portia, AWCC No. H407145 \n \n \n \n3 \nher burden of proof in demonstrating she is entitled to any additional medical treatment is related \nto or reasonably necessary for treatment of her compensable injuries. (Comms’n Ex. 1 at 3; T. 5-\n6).  \nThe record consists of the reporter’s transcript and any and all exhibits contained therein \nor attached thereto. \nSTATEMENT OF THE CASE \n \nThe  claimant,  Ms.  Aneisha  Porchia  (the  claimant),  was 30  years  old  at  the  time  of  the \nstipulated work-related incident and was 31 years old as of the subject hearing date. On September \n26, 2024, she was working at Silver Oaks Health & Rehab (Silver Oaks) in Camden, Arkansas. A \nmale resident/patient used the “call light” to let the claimant know he wanted some ice water. She \ntestified there already was some ice water by the patient’s bed, but apparently he did not realize it \nso she went out to get him some water and ice. As she was returning into the patient’s room she \nslipped by  his  wheelchair  and bed  and  fell  backwards, landing  on the “right whole side of my \nshoulder and neck and lower hip area.” (T. 10; 9-11). She testified her primary injuries were on \nthe right side of her body, specifically her right shoulder, neck and lower back. (T. 11-12).  \nThe claimant immediately reported the incident and Silver Oaks first sent her to Dr. Crump, \nwho she supposed was Silver Oaks’s company doctor, in Camden. Although the claimant did not \nintroduce any medical records into the hearing record and there are no records from Dr. Crump in \nthe record, she testified Dr. Crump had X-rays performed, gave her a shot and put her on some \nprescription  medications  for  pain  and  she  was  not  sure  what  the  other  medicines  were  for.  The \nmedical  records  indicate  she  was  prescribed Diclofenac (a  nonsteroidal  anti-inflammatory, \n\nAneisha Portia, AWCC No. H407145 \n \n \n \n4 \nNSAID),  Prednisone,  and  Cyclobenzaprine  (generic  Flexiril).  She  later  underwent  an  MRI  at \nwhich  time  she  was  referred  to  Trent  Tappan,  a  certified  physician’s  assistant (PA) at \nOrthoArkansas in Little Rock. (T. 12-15; Respondents’ Medical Exhibit 1 at 1; 1-5) (Bracketed \nmaterial added).  \nThe claimant first saw PA Tappan on December 11, 2024. From the time of her September \n26,  2024,  slip-and-fall  at  work  until  she  saw  PA  Tappan  on  December  11,  2024,  the  claimant \ncontinued  to  treat  conservatively  with  Dr.  Crump,  who  she  said  allowed  her  to  work  light  duty \nuntil he “kinda sorta” took her off work from sometime near the end of October until December 3, \n2024.  She  then  apparently  resumed  light  duty  work  until  she  saw PA  Tappan on  December  11, \n2024. The claimant testified Dr. Crump also prescribed her some PT for about a month, three (3) \ndays per week. The claimant testified the prescription medications and PT Dr. Crump prescribed \nfor her did “not really” help her pain at all. She said the medication “mostly made me just sleepy”, \nand the PT “helped, like, for a moment...but then it didn’t.” (T. 18; 15-19). The claimant testified \nshe was unaware of her MRI results, and that after Dr. Crump received them his office called her \nand asked if she “wanted to do any type of pain management”, but it was her understanding “the \nWorkers’ Comp people” would not approve it. (T. 19-20).  \nWhen the claimant saw PA Tappan on December 11, 2024, he reviewed her cervical MRI \nresults and examined her. In his report of the same date Dr. Tappan stated the cervical MRI results \nrevealed only some mild degenerative disc disease and “no evidence of disc herniation, nerve root \nimpingement, or acute injury.” (RX1 at 4; 1-5). He stated he “was not entirely sure what is causing \nall of her pain” and that he thought “it is a bit more muscular in nature” and that he “reassured her \n\nAneisha Portia, AWCC No. H407145 \n \n \n \n5 \nthat her images look stable of her spine.” (RX1 at 4). PA Tappan “did not recommend any surgery \nor aggressive treatment of her neck and back.” (RX1 at 4). In concluding his report, PA Tappan \nreleased the claimant at MMI and gave her a return to work slip that stated she could return to “full \nduty” work  with “no  restrictions”. (RX1  at  4;  5).  In  a  separate  report  dated  the  very  next  day, \nDecember  12,  2024,  PA  Tappan  opined  the  claimant  did  not  have  any – “0%” – permanent \nanatomical impairment “of the whole person” based on the applicable AMA Guides. (RX1 at 6).  \nAt  some  point  thereafter  the  claimant  obtained  legal  representation  from  Texarkana, \nArkansas workers’ compensation attorney Greg Giles and requested and the Commission granted \nher one (1)-time-only change of physician request to Dr. D’Orsay Bryant, an El Dorado, Arkansas \northopedic specialist who is well known to the Commission. Dr. Bryant examined the claimant on \nFebruary  11,  2025, and could  find  no  objective  evidence  of  any  injury  that  required  additional \nmedical  treatment. Dr.  Bryant  agreed  with  PA  Tappan  that  the  claimant  reached  MMI  as  of \n12/11/2024; had no permanent anatomical impairment; and was able to return to full duty work \nwithout restrictions. (Stipulation 4; RX1 at 10; 7-10; T. 20-37).  \nIn  response  to  a  letter  from Attorney  Giles (who  was  later  allowed  to  withdraw  as  the \nclaimant’s attorney) dated April 4, 2025, in his own letter dated April 11, 2025, Dr. Bryant noted \nthe claimant’s continued pain complaints were “subjective” in nature and he specifically stated: \n       Therefore, in my office note dictation of February 11, 2025, I do not believe \n       that any further treatment (by me) or physical therapy would be beneficial. \n       Certainly, the patient is not a candidate for any form of surgery.  \n \n(RX1 at 13; 12-13; T. 20-37) (Bracketed material added).   \n \n     \n \n\nAneisha Portia, AWCC No. H407145 \n \n \n \n6 \n \n \n DISCUSSION \n \nThe Burden of Proof \n \n      When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord as a whole, whether the party having the burden of proof on the issue has established it by \na  preponderance  of  the  evidence. Ark.  Code  Ann. §  11-9-704(c)(2)  (2025 Lexis  Replacement). \nThere is no presumption that a claim is compensable, that an injury is job-related, or that a claimant \nis entitled to benefits. Crouch Funeral Home v. Crouch, 262, Ark. 417, 557 S.W.2d 392 (1977); \nOkay  Processing,  Inc.  v.  Servold,  265  Ark.  352,  578  S.W.2d  224  (1979). The  claimant  has  the \nburden of proving by a preponderance of the evidence that she is entitled to benefits. Stone v. Patel, \n26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). In determining whether the claimant has met \nhis burden of proof, the Commission is required to weigh the evidence impartially, without giving \nthe  benefit  of  the  doubt  to  either  party. Ark.  Code  Ann. §  11-9-704(c)(4); Gencorp  Polymer \nProducts v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, \n22 Ark. App. 196, 737 S.W.2d 633 (Ark. App. 1987). The ALJ, the Commission, and the courts \nshall strictly construe the Act, which also requires them to read and construe the Act in its entirety, \nand  to  harmonize  its  provisions  when  necessary. Farmers’ Coop. v. Biles, 77  Ark.  App.  1,  69 \nS.W.2d 899 (Ark. App. 2002). \n     All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Correc. v. Glover, 35 \n\nAneisha Portia, AWCC No. H407145 \n \n \n \n7 \nArk. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Dena Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardee’s, 51 Ark. App. 116, \n912 S.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s \nor any other witness’s testimony but may accept and translate into findings of fact those portions \nof the testimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 \n(Ark. App. 1989); and Farmers’ Coop., supra. The Commission has the duty to weigh the medical \nevidence just as it does any other evidence, and  to resolve conflicting medical opinions; and its \nresolution of the medical evidence has the force and effect of a jury verdict. Williams v. Pro Staff \nTemps., 336 Ark. 510, 988 S.W.2d 1 (1999); Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d \n735 (Ark. App. 2001). Although it is within the Commission’s province  to  weigh  conflicting \nevidence,  it  may  not  arbitrarily  disregard  medical  evidence  or  the  testimony  of  any  witness. \nPatchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (Ark. App. 2004).  \n \nReasonably Necessary Medical Care and Treatment \n     Ark.  Code  Ann.  §  11-9-508(a)(1)  (2025  Lexis Replacement)  requires  an  employer  to \npromptly provide an injured worker with, among other modalities, such medical treatment “as may \nbe reasonably necessary in connection with the injury received by the employee.” The burden of \nproof is on the claimant to prove the medical treatment he requests is reasonable and necessary for \ntreatment of her compensable injury. Lankford v. Crossland Constr. Co., 2011 Ark. App. 416, 384 \nS.W.3d  561  (Ark.  App.  2011).  What  constitutes  reasonably necessary  medical  treatment  is  a \n\nAneisha Portia, AWCC No. H407145 \n \n \n \n8 \nquestion  of  fact  for  the  Commission  and  turns  on  the  sufficiency  of  the  evidence. Wright \nContracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (Ark. App. 1984); Gansky v. Hi-\nTech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996). \n     While  injured  employees  must  prove  that  medical  services  are  reasonably  necessary  by  a \npreponderance of the evidence, Arkansas law is well-settled that such services may include those \nnecessary  to  accurately  diagnose  the  nature  and  extent  of  the  compensable  injury;  to  reduce  or \nalleviate  symptoms  resulting  from  the  compensable  injury;  to  maintain  the  level  of  healing \nachieved; or to prevent further deterioration of the damage produced by the compensable injury. \nArk. Code Ann. § 11-9-705(a)(3); Jordan v. Tyson Foods, Inc., 51  Ark.  App. 100, 911 S.W.2d \n593 (Ark. App. 1995).  \n     Our court of appeals has noted that even if the healing period has ended, a claimant may be \nentitled to ongoing medical treatment if the treatment is geared toward management of problems \nemanating from his compensable injury. Patchell v. Wal-Mart Stores, Inc., 86 Ark App. 230; 184 \nS.W.  3d  31,  (Ark.  App.  2004).  The  Commission  has  found  that  treatment  intended  to  help  a \nclaimant cope with chronic pain attributable to a compensable injury may be reasonably necessary. \nMaynard v. Belden Wire & Cable Co., Arkansas Workers’ Compensation Commission (AWCC) \nClaim  No.  E502002  (Full  Commission  Opinion  filed  April  28,  1998);  and Billy  Chronister  v. \nLavaca  Vault,  AWCC  Claim  No.  704562  (Full  Commission  Opinion  filed  June  20,  1991).  A \nclaimant is not required to support the alleged need for continued medical treatment with objective \nfindings. Chamber  Door  Industries,  Inc.  v.  Graham,  59  Ark.  App.  224,  956  S.W.2d  196  (Ark. \nApp. 1997). \n\nAneisha Portia, AWCC No. H407145 \n \n \n \n9 \n     Reasonably  necessary  medical  services  include  those  necessary  to  reduce  or  alleviate \nsymptoms resulting from the compensable injury. Ark. Code Ann. § 11-9-705(a)(3); and Jordan, \nsupra. Also, reasonably necessary medical services include those necessary to reduce or alleviate \nsymptoms resulting from the compensable injury. Ark. Code Ann. § 11-9-705(a)(3); and Jordan, \nsupra. \n     Based on the applicable law as applied to the facts of this case and as explained in more detail \nbelow, I find the claimant has failed to meet burden of proof in demonstrating she is entitled to \nadditional  medical  treatment  in  the  form  of  additional  PT  and/or any other  unspecified  medical \ntreatment. See, Goyne v. Crabtree Contr. Co., Inc., 2009 Ark. App. 200, 301 S.W.3d 16 (Ark. App. \n2009), rehearing denied, _ Ark. App. _, _ S.W.3d _, 2009 Ark. App. LEXIS 874 (April 22, 2009). \n     The overwhelming preponderance of the medical evidence reveals the claimant’s slip-and-\nfall at work on September 26, 2024, did not – thankfully and fortunately – result in any serious, \npermanent  injury. In  fact,  in  the  case  at  bar  there  exists  no  medical  evidence  supporting  the \nclaimant’s contention she is entitled to additional PT or any other medical treatment. Indeed, all \nof  the  medical  evidence  is  to  the  contrary – as  are  the  medical  opinions  of  PA  Tappan  and  Dr. \nBryant.  \n    The claimant’s MRI revealed only mild degenerative changes, no evidence of disc herniation, \nnerve  root impingement,  or  acute  injury. Indeed,  PA  Tappan  stated  he  believed  her  subjective \ncomplaints  of  pain  were  muscular  in  nature  and  required  no  additional  medical  treatment. \nConsequently, he  released  her  at  MMI  to  return  to  full  duty  work  with  no  restrictions,  and  he \nfurther opined she had sustained no/0% permanent anatomical impairment. ((RX1 at 4, 4-5; 1-6). \n\nAneisha Portia, AWCC No. H407145 \n \n \n \n10 \n   Thereafter, Dr. Bryant made it abundantly clear in both of his reports he did not believe the \nclaimant required any additional medical treatment or physical therapy. (RX1 at 7-10; 11-13). In \nhis April 11, 2025, report, Dr. Bryant states rather bluntly and strongly that he does not believe the \nclaimant  would  benefit  from  any  additional  medical  treatment  whatsoever,  physical  therapy \notherwise.  Having  seen  many  medical  reports  from  Dr.  Bryant,  this  ALJ  has  not  to  date  seen  a \nmedical report wherein Dr. Bryant states his opinion with more conviction.  \n     Finally, it is significant to note the claimant herself admitted in her hearing testimony that \nneither the prescription pain and anti-inflammatory medication she took nor one (1) month of PT \nthere (3) times per week improved her subjective complaints of pain. Again, the claimant’s \ntestimony in this regard is consistent with both Dr. Bryant’s and PA Tappan’s opinions,  and \nspecifically  with  her  own  COP’s,  Dr.  Bryant’s,  opinion  she  requires  no  additional  medical \ntreatment – including the specific treatment the claimant is requesting herein – physical therapy.     \n      Consequently, for all the aforementioned reasons I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim.  \n \n2. The stipulations contained in the prehearing order filed November 7, \n2025, hereby are accepted as facts.  \n \n3. The claimant has failed to meet her burden of proof in demonstrating she \nis entitled to additional medical treatment – either physical therapy or \nany other treatment – on these facts.  \n \n    Therefore, this claim is respectfully denied and dismissed with prejudice subject only to the \nparties’ statutory appeal rights. \n\nAneisha Portia, AWCC No. H407145 \n \n \n \n11 \n     IT IS SO ORDERED.   \n \n \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":18759,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H407145 ANEISHA PORCHIA, EMPLOYEE CLAIMANT SILVER OAKS HEALTH & REHAB, EMPLOYER RESPONDENT ARKANSAS NURSING HOME SELF-INSURED TRUST/ ASIT-CCMSI, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 17, 2026 Hearing conducted before the Arkansas Workers’ Com...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:2","denied:2"],"injuryKeywords":["neck","back","shoulder","hip","cervical"],"fetchedAt":"2026-05-19T22:30:55.574Z"},{"id":"alj-H504297-2026-03-17","awccNumber":"H504297","decisionDate":"2026-03-17","decisionYear":2026,"opinionType":"alj","claimantName":"Jimmy Rutherford","employerName":"Simmons Animal Nutrition Inc","title":"RUTHERFORD VS. SIMMONS ANIMAL NUTRITION INC. AWCC# H504297 March 17, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RUTHERFORD_JIMMY_H504297_20260317.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RUTHERFORD_JIMMY_H504297_20260317.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H504297 \n \nJIMMY D. RUTHERFORD, EMPLOYEE   CLAIMANT \n \nSIMMONS ANIMAL NUTRITION INC., EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MARCH 17, 2026 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents are represented by R. SCOTT ZUERKER, Attorney, Fort Smith Arkansas \n \nOPINION/ORDER \n \n On   July  10,  2025,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on January \n15,2025.   Claimant was not represented by an attorney when the AR-C was filed, and is still pro se.   \nOn January 7, 2026, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for March 12, \n2026.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice was picked up at the post office on February 17, 2026.    Claimant \ndid not respond to respondent’s motion and did not appear in person at the hearing on March 12, \n2026.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \n\nRutherford-H504297 \n \n2 \n \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby  is  granted.    This  dismissal  is  pursuant  to  Commission 11  C.A.R. § 25-110(d) (formerly \nCommission Rule 099.13) and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2153,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H504297 JIMMY D. RUTHERFORD, EMPLOYEE CLAIMANT SIMMONS ANIMAL NUTRITION INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MARCH 17, 2026 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:30:57.640Z"},{"id":"alj-H502745-2026-03-13","awccNumber":"H502745","decisionDate":"2026-03-13","decisionYear":2026,"opinionType":"alj","claimantName":"Laqueta Young","employerName":"Rock Region Metro","title":"YOUNG VS. ROCK REGION METRO AWCC# H502745 March 13, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/YOUNG_LAQUETA_H502745_20260313.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"YOUNG_LAQUETA_H502745_20260313.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:30:45.218Z"},{"id":"alj-H306079-2026-03-11","awccNumber":"H306079","decisionDate":"2026-03-11","decisionYear":2026,"opinionType":"alj","claimantName":"Leonardo Diaz","employerName":"Shepard Construction, Llcjc Quality Framing, Inc","title":"DIAZ VS. SHEPARD CONSTRUCTION, LLCJC QUALITY FRAMING, INC. AWCC# H306079 March 11, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DIAZ_LEONARDO_H306079_20260311.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DIAZ_LEONARDO_H306079_20260311.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H306079 \n \nLEONARDO DIAZ, Employee CLAIMANT \n \nSHEPARD CONSTRUCTION, LLCJC QUALITY FRAMING, INC. RESPONDENT \n \nLM INS. CORP., Carrier RESPONDENT \n \n \n \n OPINION FILED MARCH 11, 2026 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by JASON M. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On January  27,  2024,  the  claimant’s attorney, Mark  Peoples, filed  an  AR-C  requesting \nvarious  compensation  benefits  which alleged injuries to the claimant’s back,  ribs,  eye,  leg  and \ngroin on  or  about September  9,  2023. On November  8,  2024, Mr.  Peoples filed  a  Motion  to \nWithdraw  as  Counsel  and  that  motion  was  granted  by  the  Full  Commission  by  Order  filed \nNovember 22, 2024. No further action was taken on this claim. \nOn November  21,  2025,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim  be  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for February  17,  2026. \nNotice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on \nJanuary  7,  2026.  That  certified  mail  notice  was  returned  to  the  Commission  by  the  Post  Office \nwith a notation “Return to Sender. Unclaimed. Unable to Forward.”  \n\nDiaz – H306079 \n \n-2- \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After a review of the \nrespondents’ Motion to Dismiss, the claimant’s lack of desire to pursue his claim, and his failure \nto appear at the scheduled hearing, as well as all other matters properly before the Commission, I \nfind  that  claimant  has  failed  to  prosecute  this  claim.  Therefore,  this  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2329,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H306079 LEONARDO DIAZ, Employee CLAIMANT SHEPARD CONSTRUCTION, LLCJC QUALITY FRAMING, INC. RESPONDENT LM INS. CORP., Carrier RESPONDENT OPINION FILED MARCH 11, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arka...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:30:43.121Z"},{"id":"alj-H504689-2026-03-10","awccNumber":"H504689","decisionDate":"2026-03-10","decisionYear":2026,"opinionType":"alj","claimantName":"Brenda Horn","employerName":"Birch Tree Communities, Inc","title":"HORN VS. BIRCH TREE COMMUNITIES, INC. AWCC# H504689 March 10, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HORN_BRENDA_H504689_20260310_2.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HORN_BRENDA_H504689_20260310_2.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:30:40.985Z"},{"id":"alj-H501581-2026-03-05","awccNumber":"H501581","decisionDate":"2026-03-05","decisionYear":2026,"opinionType":"alj","claimantName":"Taiquitha Robins","employerName":"Arkansas Baptist College","title":"ROBINS VS. ARKANSAS BAPTIST COLLEGE AWCC# H501581 March 05, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ROBINS_TAIQUITHA_H501581_20260305.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROBINS_TAIQUITHA_H501581_20260305.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H501581 \n \nTAIQUITHA ROBINS, EMPLOYEE        CLAIMANT \n \nARKANSAS BAPTIST COLLEGE, EMPLOYER                     RESPONDENT \n \nBRIDGEFIELD CASUALTY INS. CO./SUMMIT CONSULTING, \nCARRIER/TPA                    RESPONDENT \n \n \nOPINION FILED 5 MARCH 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 7 January 2026 in Little Rock, Arkansas. \n \nThe pro se claimant failed to appear. \n \nThe Ryburn Law Firm, Mr. Zachary F. Ryburn, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 7 January 2026. This case relates to an alleged workplace injury \noccurring on 3 January 2025. The record from the hearing consists of the transcript; \nRespondents’ Exhibit No 1, their two-page Motion to Dismiss; and Commission’s Exhibit No \n1, two pages that included a Form AR-C filed by the claimant and a Postal Service delivery \nreceipt from Commission correspondence with the claimant.  \nThe record showed that the claimant filed a Form AR-C on 12 March 2025 alleging \nan injury on 3 January 2025. She stated an injury relating to stress in the workplace. The \nForm AR-C indicated that she was seeking temporary total disability and medical expenses. \nThe claim was denied in its entirety by the respondents.  \nOn 28 October 2025, the respondents requested that this claim be dismissed for the \nclaimant’s failure to prosecute his claim under the Commission Rule at 11 C.A.R. § 25-\n\nT. ROBINS- H501581 \n2 \n \n110(d). They argued that the claim had been denied at its outset and that the claimant had \nmade no effort to prosecute her case since the filing of the Form AR-C.  \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of a hearing on the \nrespondents’ motion was sent in the same manner. A Postal Service delivery receipt \nevidences that the claimant received the Commission’s correspondence on 26 November \n2025. The record does not reflect any responsive filings from the claimant; and she did not \nattend the hearing to object to the dismissal of this claim. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim is dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 7 January 2026 and presented their motion. As argued \nby the respondents at the hearing, 11 C.A.R. § 25-110(d) provides for a dismissal for failure \nto prosecute an action upon application by either party and reasonable notice. As noted \nabove, notice of the respondents’ motion and notice of the scheduling of the hearing was \nprovided to the claimant. \nThe respondents argue that the claimant has failed to prosecute her claim. She has \nmade no efforts in furtherance of the same since the filing of her Form AR-C. Additionally, \n\nT. ROBINS- H501581 \n3 \n \nthe claimant has not requested a hearing on any issue in her claim. No objection was filed \nto the respondents’ motion to dismiss this claim; and the claimant did not appear at the \nhearing to resist the dismissal of her claim. Based on the evidence presented, a dismissal \nwithout prejudice is appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4008,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H501581 TAIQUITHA ROBINS, EMPLOYEE CLAIMANT ARKANSAS BAPTIST COLLEGE, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INS. CO./SUMMIT CONSULTING, CARRIER/TPA RESPONDENT OPINION FILED 5 MARCH 2026 Heard before Arkansas Workers’ Compensation Commission (“the Comm...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:30:36.842Z"},{"id":"alj-H407536-2026-03-05","awccNumber":"H407536","decisionDate":"2026-03-05","decisionYear":2026,"opinionType":"alj","claimantName":"Laura Walker","employerName":"Ark. Heart Hosp","title":"WALKER VS. ARK. HEART HOSP. AWCC# H407536 March 05, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Walker_Laura_H407536_20260305.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Walker_Laura_H407536_20260305.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H407536 \n \n \nLAURA WALKER, EMPLOYEE CLAIMANT \n \nARK. HEART HOSP., \n EMPLOYER RESPONDENT \n \nLUBA CASUALTY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MARCH 5, 2026 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 22, 2026, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Richard L. Mays, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  Mr. Jarrod  S.  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On January  22,  2026,  the  above-captioned  claim  was  heard  in Little  Rock, \nArkansas.  A prehearing conference took place on December 1, 2025.  The Prehearing \nOrder  entered that  day pursuant  to  the  conference  was  admitted  without  objection  as \nCommission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  They are the following, which I accept: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n\nWALKER – H407536 \n \n2 \n2. The  employee/employer/carrier  relationship existed  among  the  parties  on \nOctober  29,  2024,  when  Claimant  sustained  compensable  injuries  to  her \nleft  hip  and  knee,  to  her  low  back,  and  to  her  right  hand  by  specific \nincident. \n3. Respondents accepted  the  above  injuries  as  compensable  and  paid \nbenefits pursuant thereto. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether Claimant  sustained  an  injury  to  her  left  wrist  as  a  compensable \nconsequence of her stipulated compensable injuries. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged compensable consequence left wrist injury. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant contends that her medical records document that she sustained \nan injury to her left wrist as a compensable consequence of her stipulated \ncompensable   injuries,   along   with   her  entitlement   to   reasonable   and \nnecessary treatment thereof. \n\nWALKER – H407536 \n \n3 \n Respondents: \n1. Respondents  contend  that all  appropriate  benefits  have  been  paid  with \nregard  to  this  matter.    She  was  released  as  having  reached  maximum \nmedical  improvement  by  Dr. Brian Norton  with  regard  to  her  right  wrist \ninjury  on  May  2,  2025.    Claimant  was  released  as  having  reached \nmaximum medical improvement with respect to her low back by Dr. Victor \nVargas on May 12, 2025.  Temporary total disability benefits were paid to \nClaimant  through  July 11, 2025.    Respondents  will  have  an overpayment \ncredit entitlement once an impairment rating is assigned for Claimant’s \nright wrist. \n2. Respondents deny that Claimant sustained an injury to her left wrist as a \nconsequence of her stipulated compensable injuries. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports, non-medical \nrecords,  and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity  to  hear  the  testimony  of Claimant and  to  observe her demeanor,  I  hereby \nmake the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n\nWALKER – H407536 \n \n4 \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  she \nsuffered  an  injury  to  her  left  wrist  that  is  a  compensable  consequence  of \nher stipulated compensable right hand injury. \n4. Claimant has  proven  by  a  preponderance  of  the  evidence  that  she is \nentitled    to    reasonable    and    necessary   medical    treatment   of    her \ncompensable consequence left wrist injury.  This includes the surgical left \nwrist release performed by Dr. Brian Norton and related treatment. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness at the hearing. \n In  addition  to  the Prehearing Order  discussed  above,  exhibits  admitted  into \nevidence  in  this  case  were  Claimant’s  Exhibit 1,  medical  records,  consisting  of two \npages;  Respondents’  Exhibit  1,  another  compilation  of  Claimant’s  medical  records, \nconsisting  of one  index page and  60  numbered  pages  thereafter;  and  Respondents’ \nExhibit  2,  nonmedical  records,  consisting  of  one  index  page  and  12  numbered  pages \nthereafter. \nAnalysis of Issues \nA. Compensable Consequence-Left Wrist \n Introduction.  As the parties have stipulated, Claimant sustained a compensable \ninjury  to her  left  hip  and  knee,  to  her  low  back,  and  to  her  right  hand on October  29, \n2024, while  working  for  Respondent Arkansas  Heart  Hospital.    In  this  action, she  is \n\nWALKER – H407536 \n \n5 \nseeking treatment of a left wrist injury that she claims is a compensable consequence of \nher stipulated compensable injuries. \n Evidence.  Claimant testified that she worked for Arkansas Heart Hospital as an \ninstrument  technician.  At  the time of  the October  29,  2024, work-related incident,  she \nhad been employed by the hospital for two to three months.  She described the incident \nin question: \nAs   an   instrument  technician,   I  prepare   instruments   for  the   doctors.  \nThere’s a wash cart that comes out of the washer where the instruments \ncome to the other side, they are supposed to the dried.  They were pulled \nout.  When they were pulled out, I got a set to process to put it together.  I \nset  it  on  the  working  area.    Once  I  set  it  on  the  working  area,  I  turned \naround to get a stool; and when I turned around, I slipped in water. \n \nClaimant related that while she felt pain in her right wrist that “was very noticeable,” the \npain she felt in the left wrist was less noticeable. \n The  treatment  that  Claimant  underwent  for  her  right hand  injury  included  a \nsteroid  injection.    But  when  conservative  measures  failed,  the  hand  was  surgically \nrepaired. \n The following exchange occurred on direct examination: \nQ. When you went back to work, did you use your left hand— \n \nA.  I never went back to work. \n \nQ. Pardon? \n \nA.  I never went back to work. \n \nQ. Never went back to work? \n \nA. No. \n \n\nWALKER – H407536 \n \n6 \nQ. So  your—your—your wrist,  you  then  relied more  on  your  left  hand \nfor whatever you had to manage? \n \nA. Yes, I did. \n \nQ. And—and that’s—and  so  when  did  you  become  really  focusing—\nstart focusing on your left wrist? \n \nA. Right  after  the  surgery  or  right  before  the  surgery,  I  was  talking  to \nDr. Norton about this hand hurting also. \n \nJUDGE FINE:  Which hand is this? \n \nA. The left hand. \n \n. . . \n \nQ. So what did he do—what did you tell him about your left hand? \n \nA. I told him it was hurting. \n \nQ. It was hurting? \n \nA. Yes. \n \nQ. And—did—what did he do to the left hand? \n \nA. He did a test on my left hand, and it’s a certain test that they do so \nfar as pushing a certain area on your wrist.  And the same problem \nwas over here.  I had it over on my left, also. \n \nQ. The  same  problem  you  had—complained  you  had  on  your  right, \nyou had with your left? \n \nA. Yes, sir. \n \n According to Claimant, she eventually underwent the same surgical procedure on \nher left wrist that Dr. Norton had previously performed on the right.  Unlike following her \nright  wrist  surgery,  Claimant  did  not  receive  physical  therapy  following  the  surgery  on \nher left wrist.  Her left wrist treatment was paid out of her own pocket. \n\nWALKER – H407536 \n \n7 \n On cross-examination, Claimant acknowledged that she did not make a claim for \nan  alleged  left  wrist  injury  until  after  she  had  been  released  to  return  to  work  in \nconnection  with  her  stipulated  right  upper  extremity  injury.    Claimant  also  agreed  that \nher testimony on direct that she had left wrist symptoms at the time of her work-related \nfall  differed  from  her  deposition  testimony  that  those  symptoms  did  not  manifest  until \nthree  to  five  days  thereafter.   Neither  the  initial  accident  report  nor  the  Form  AR-N \nreference the left wrist. \n With respect to her contention that her alleged left wrist injury is a compensable \nconsequence, Claimant confirmed that she was not working during the three to five-day \nperiod between the accident in question and the onset of her left wrist symptoms.  She \nrepeated her earlier testimony that she does not know if she suffered trauma to her left \nwrist in the fall; she only knows that she landed on her left side.  The condition in her left \nwrist is known as de Quervain’s.  It is her testimony that this condition is work-related.  \nDuring  the  period  of  time  that  she  was  using  her  left  upper  extremity,  she  did  not  do \nanything strenuous, rapid, repetitive, or work-like. \n Under  questioning  from  the  Commission,  Claimant  testified  that  there  was  a \nperiod following her stipulated accident in October 2024 that she was using only her left \nwrist  and  not  her  right.    Asked  what  those  activities  consisted  of,  she  responded:  \n“Mopping, mopping sometimes, sweeping.”  Later, she stated that those activities also \nincluded  “[c]ooking  .  .  .  [d]riving  sometimes”  and  added:    “Basically  everything  and \nanything that I couldn’t use this one [the  right  wrist], I’d use this [the  left].   She  denied \n\nWALKER – H407536 \n \n8 \nlifting  anything  heavy  exclusively  with  her  left  upper  extremity.   While  the  left  wrist \nsymptoms were not initially “major,” they worsened over a period of two months. \n During a May 2, 2025, visit, Dr. Norton examined both of Claimant’s wrists.  He \nperformed a  de Quervain’s release on February 14, 2025.  Claimant related to him that \nshe was suffering from “severe left wrist pain.”  The doctor added:  “[s]he believes this \nwas also related to the fall.”  He diagnosed her as having bilateral de Quervain’s (i.e., \nradial styloid tenosynovitis in both wrists) and recommended a release be performed on \nthe left wrist as well. \n In a follow-up report dated June 17, 2025, Norton wrote: \nOverall the patient is doing well from a left de Quervain’s release.  The \npatient is having difficulty as this was not covered under Worker’s Comp.  I \ndid state in my previous dictations that I believe this directly related to her \nfall  even  though  she  did  not  initially  complain  of  much  left  wrist  pain.    Of \nnote  I  also  believe  that  this  was  exacerbated  by  the  fact  that  she  was \nlimited to only using her left hand while her right de Quervain’s recovered.  \nThis is [has] exacerbated the de Quervain’s on the left side. \n \n Standards.  If an injury is compensable, every natural consequence of that injury \nis  likewise  compensable.   Air  Compressor  Equip.  Co.  v.  Sword,  69  Ark.  App.  162,  11 \nS.W.3d 1  (2000); Hubley v. Best West. Governor’s Inn,  52  Ark. App. 226,  916  S.W.2d \n143  (1996).    The  test  is  whether  a  causal  connection  between  the  two  (2)  episodes \nexists.  Sword, supra; Jeter v. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998).  \nThe existence of a causal connection is a question of fact for the Commission.  Koster \nv. Custom Pak & Trissel, 2009 Ark. App. 780, 2009 Ark. App. LEXIS 947.  It is generally \na  matter  of  inference,  and  possibilities  may  play  a  proper  and  important  role  in \nestablishing  that  relationship.   Osmose  Wood  Preserving  v.  Jones,  40  Ark.  App.  190, \n\nWALKER – H407536 \n \n9 \n843  S.W.2d  875  (1992).    A  finding  of  causation  need  not  be  expressed  in  terms  of  a \nreasonable   medical   certainty   where   supplemental   evidence   supports   the   causal \nconnection.  Koster, supra; Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, \n137 S.W.3d 421 (2003). \n Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Claimant has the burden of \nproving by  a preponderance  of  the  evidence that  she  sustained a  compensable  injury.  \nThis standard means the evidence having greater weight or convincing force.  Barre v. \nHoffman,  2009  Ark.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212 \nArk. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Claimant’s testimony—which I credit—was that while she landed on her left side \nin  the  stipulated  work-related  fall  and  only  had  mild  left  wrist  symptoms at  first,  those \nworsened later when she began using her left hand exclusively for tasks. \n Dr.  Norton  diagnosed  and  treated  her  for de Quervain’s.    Per  DORLAND’S \nILLUSTRATED MEDICAL DICTIONARY 531  (30\nth\n ed.  2003),“de Quervain’s  disease”  is \n\nWALKER – H407536 \n \n10 \n“painful tenosynovitis due to relative narrowness of the common tendon sheath of the \nabductor  pollicis  longus  and  the  extensor  pollicis  brevis.”    In  turn,  “tenosynovitis”  is \n“inflammation of a tendon sheath.”  Id. at 1865. \n To the extent that Claimant’s left de Quervain’s was pre-existing,  the  Arkansas \nWorkers’  Compensation  Act  provides  that  the  employer  takes  the  employee  as  the \nemployer   finds   her,   and   employment   circumstances   that   aggravate   pre-existing \nconditions  are  compensable.   Nashville  Livestock  Comm.  v.  Cox,  302  Ark.  69,  787 \nS.W.2d 64 (1990).  A pre-existing infirmity does not disqualify a claim if the employment \naggravated,  accelerated,  or  combined  with  the  infirmity  to  produce  the  disability  for \nwhich  compensation  is  sought.   St.  Vincent  Med.  Ctr.  v.  Brown,  53  Ark.  App.  30,  917 \nS.W.2d 550 (1996). \n Again, Dr. Norton opined that her left de Quervain’s “was exacerbated by the fact \nthat she was limited to only using her left hand while her right de Quervain’s recovered.”  \nI  credit  this causation  opinion.   Medical  evidence  is  not  ordinarily  required  to  prove \ncausation.   Wal-Mart  v.  Van  Wagner,  337  Ark.  443,  990  S.W.2d  522  (1999).    But  if  a \nmedical opinion is offered on causation, the opinion must be stated within a reasonable \ndegree of medical certainty.  Ark. Code Ann. § 11-9-102(16)(B) (Repl. 2012).  It should \nalso  be  noted  that  in  interpreting  this  provision,  the  Arkansas  Supreme  Court  in \nFreeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001) stated:  “This \ncourt  has  never  required  .  .  .  that  the  magic  words  ‘within  a  reasonable  degree of \nmedical certainty’ even be used by the doctor.”  Norton’s language—the straightforward, \n\nWALKER – H407536 \n \n11 \nunqualified  statement  that  her  condition  “was exacerbated”—passes  muster  under \nFreeman. \n Claimant  has  thus  established  the  requisite  causal  connection  between  her \nstipulated compensable right hand injury and the exacerbation of her left de Quervain’s.  \nShe has proven by a preponderance of the evidence that she suffered an injury to her \nleft wrist that is a compensable consequence of her compensable right hand injury. \nB. Reasonable and Necessary Treatment \n Introduction.  In this proceeding, Claimant is seeking reasonable and necessary \ntreatment  of  her  alleged  left  wrist  injury.    Respondents  have  denied  responsibility  for \nthis. \n Standards.    Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n\nWALKER – H407536 \n \n12 \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.  I find that Claimant has proven by a preponderance of the evidence \nthat she is entitled to reasonable and necessary medical treatment of her compensable \nleft  wrist  injury,  including  her  left  de  Quervain’s  release  by  Dr.  Norton  and  related \ntreatment.  Moreover, I have reviewed his treatment records that are in evidence, and I \nfind that she has proven by a preponderance of the evidence that all of the treatment of \nher compensable left wrist injury that is in evidence was reasonable and necessary. \nCONCLUSION AND AWARD \n Respondents are directed to pay/furnish benefits in accordance with the findings \nof fact set forth above.  All accrued sums shall be paid in a lump sum without discount, \nand this award shall earn interest at the legal rate until paid, pursuant to Ark. Code Ann. \n§ 11-9-809 (Repl. 2002).  See Couch v. First State Bank of Newport, 49 Ark. App. 102, \n898 S.W.2d 57 (1995). \n\nWALKER – H407536 \n \n13 \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":19447,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H407536 LAURA WALKER, EMPLOYEE CLAIMANT ARK. HEART HOSP., EMPLOYER RESPONDENT LUBA CASUALTY INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 5, 2026 Hearing before Administrative Law Judge O. Milton Fine II on January 22, 2026, in Little Rock, Pulaski County,...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["hip","knee","back","wrist","repetitive"],"fetchedAt":"2026-05-19T22:30:38.923Z"},{"id":"alj-H300401-2026-03-04","awccNumber":"H300401","decisionDate":"2026-03-04","decisionYear":2026,"opinionType":"alj","claimantName":"Tina Johnson","employerName":"Conway Regional Health System","title":"JOHNSON VS. CONWAY REGIONAL HEALTH SYSTEM AWCC# H300401 March 04, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JOHNSON_TINA_H300401_20260304.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_TINA_H300401_20260304.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nWCC NO.: H300401 \n  \nTINA JOHNSON, EMPLOYEE                                                                                 CLAIMANT \n \nCONWAY REGIONAL HEALTH SYSTEM,   \nEMPLOYER                                                                                                            RESPONDENT    \n                                        \nRISK MANAGEMENT RESOURCES, INC.,  \nTPA                                                                                                                          RESPONDENT  \n \n \nOPINION FILED MARCH 4, 2026 \n             \nHearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney at Law, Little Rock, \nArkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney at Law, Little Rock, \nArkansas. \n \n          STATEMENT OF THE CASE \nOn December 17, 2025, the above-captioned claim came on for a hearing in Little Rock, \nArkansas.  Previously, a pre-hearing telephone conference was held in this matter on October 8, \n2025.  A Pre-hearing Order was entered that same day pursuant to the telephone conference.  Said \norder was admitted into evidence along with the parties’ pre-hearing information filings without \nobjection by the parties as Commission’s Exhibit 1. \nStipulations \n During the pre-hearing telephone conference, and/or at the hearing, the parties proposed \nthe following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within claim. \n \n2. The employee-employer-insurance carrier relationship existed among the parties on or \nabout September  6,  2022, when the Claimant  sustained  a  compensable  injury  to  her \nright shoulder.  \n\nJOHNSON – H300401 \n2 \n \n \n3. On the date of the Claimant’s accidental injury, she earned an average weekly wage of \n$505.80 which entitles her to a weekly temporary total disability/TTD benefits rate of \n$337.00, and a permanent partial disability/PPD rate of $253.00 per week. \n 4.   The Claimant was assigned a 21% permanent impairment rating to the body as a whole \n       for her compensable right shoulder injury, which has been accepted and is being paid  \n       by the Respondents.  \n 6.   This claim for additional benefits has been controverted by the Respondents.   \n \n5.  All issues not litigated herein are reserved under the Arkansas Workers’ Compensation              \n     Act.  \n \n  Issues \n \nBy agreement of the parties, the issues to be litigated at the hearing were as follows: \n 1.   Whether the Claimant has permanently and totally disabled due to her admittedly  \n       compensable right shoulder injury of September 6, 2022, or in the alternative whether \n       the Claimant sustained wage-loss disability over and above her 21% impairment rating \n       as a result of her compensable shoulder injury. \n 2.   Whether the Claimant’s attorney is entitled to a controverted attorney’s fee on any                                                  \n                  indemnity benefits awarded herein.  \n \nContentions \n \n The Claimant’s and the Respondents’ contentions are delineated below: \n \nClaimant:  \n \n The Claimant contends that on or about September 6, 2022, she was in the scope and course \nof her employment when she fell, landing on her right shoulder.  The Respondents accepted the \ninjury as compensable and began paying for treatment.  An MRI revealed a complete full thickness \ntear of the supraspinatus tendon and infraspinatus tendon.  Dr. O’Malley described the tear as \n“massive.” On January 10, 2023, Dr. O’Malley performed a right shoulder arthroscopy with rotator \ncuff  repair,  arthroscopic  bicep  tenodesis,  extensive debridement,  distal  clavicle  excision  and  a \nsubacromial excision and a subacromial excision.  On March 22, 2023, the Claimant was given a \nlifting restriction of one pound and one arm duty only.  On April 13, 2023, the Claimant’s employer \n\nJOHNSON – H300401 \n3 \n \nasked that she resign her employment so that she would be eligible for rehire as there was no work \nwithin  her  restrictions.  The Claimant  refused  to  resign  her employment  and was  therefore \nterminated on April 13, 2023.  Claimant continued to receive her TTD benefits.   \n On  September  6,  2023,  the  Claimant  underwent  a  Functional  Capacity  Evaluation/FCE \nwith 51 out of 51 consistency measures, returning her to the light duty category of work.  Claimant \nwas  still  in  pain  and  was  sent  to  Dr.  Charles  Pearce,  who  noted  that  she  was  not  at  MMI  and \nordered a reverse shoulder arthroplasty.  Respondents then sent the Claimant for another opinion \nwith Dr. Hussey, who opined that a shoulder arthroplasty was both reasonable and necessary.  On \nMarch 19, 2024, Dr. Hussey performed the surgery.  On October 15, 2024, Claimant underwent a \nsecond  Functional  Capacity  Evaluation  with  47  of  48  consistency  measures  and  returned  the \nClaimant to medium duty work.   On November 22, 2024, Dr. Hussey released the Claimant with \na 21% whole-as-a-whole rating and permanent restrictions.  \n Claimant is 61 years old with a high school education.  Her work history consists of mainly \nphysical labor jobs at hospitals.  Claimant contends that she is permanently and totally disabled or \nin the alternative that she has wage loss and that her attorney is entitled to an attorney fee.  \n All other issues are reserved. \nRespondents: \n The  Respondents contend  that  all  appropriate  benefits  are  being  paid  with  regard to  the \nClaimant’s compensable shoulder injury.  \n                FINDINGS OF FACT AND CONCLUSIONS OF LAW \nAfter  reviewing  the record  as  a  whole, including  the  medical  reports, the documentary \nevidence, and other matters properly before the Commission, and after having had an opportunity \nto listen to the testimony of both witnesses and after having been given the opportunity to observe \n\nJOHNSON – H300401 \n4 \n \ntheir demeanor, I hereby make the following findings of fact and conclusions of law in accordance \nwith Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.     The proposed stipulations set forth above are reasonable and hereby accepted. \n \n          3.         The Claimant failed to prove by a preponderance of the credible evidence that her  \n           compensable right shoulder injury of September 6, 2022, rendered her permanently \n           and totally disabled from earning meaningful wages in the same and/or other    \n           employment.  However, the Claimant proved her entitlement to wage loss disability \n           in the amount of 15% over and above her 21% permanent anatomical impairment  \n           rating.   \n \n          4.         All issues not litigated herein or addressed in this Opinion are reserved under the                       \n           Arkansas Workers’ Compensation Act.    \n \nSummary of Evidence \nThe witnesses were the Claimant, Ms. Tina Johnson, and Ms. Cecilia Brunson. \n            The record consists of the hearing transcript of December 17, 2025, and the exhibits held \ntherein.  In addition to the Pre-hearing Order discussed above, the exhibits admitted into evidence \nin this case include Claimant’s Exhibit 1consisting of a Medical Index comprising seven numbered \npages  along  with  126  numbered pages of medical records; Claimant’s Exhibit 2 encompasses a \nNon-Medical Exhibit comprising   of five   numbered pages;  Respondents’  Exhibit  1  is  a \nRespondents’ Hearing Exhibit Index Medicals consisting of three pages; and Respondents’ Exhibit \n2 encompassing six number pages of Non-Medical documentary records.  \nTestimony \n Ms. Tina Johnson,  now age 62, graduated  from  high  school  in  1981.   The Claimant \nconfirmed that she attended Petit Jean Mountain Vocational School for one year.  According to \nthe Claimant, she also attended one year of technical training school in Russellville, Arkansas, but \nshe did not complete the program.  The Claimant stated that she later attended a program at Eastern \n\nJOHNSON – H300401 \n5 \n \nCollege,  in  Little  Rock  and obtained certification as  a  medical assistant approximately  twenty \nyears  ago.  However, the Claimant  testified that  she no  longer  holds the medical  assistant \ncertification. \n About her employment history, after leaving high school, the Claimant went to work for \nKimberly  Clark  and  worked  there for  thirteen  years.   While at Kimberly  Clark,  the  Claimant’s \nemployment duties included work as a machine operator and backup line leader on an assembly \nline.  She left her employment with Kimberly Clark after her twins were born prematurely.  The \nClaimant  stayed  at  home to  care  for her children for  about  seven  years.    She returned to  the \nworkforce and began working at AmTran as a spot welder.  The Claimant worked there for over a \nyear and then went to work for Frigidaire.  There, she worked on the assembly line for over a year.  \n The Claimant confirmed that then, she moved to Tulsa, Oklahoma, and began working as \na mental health technician.  Her employment duties consisted of caring for patients to protect them \nfrom harming themselves and others.  The Claimant was also responsible for providing basic care \nfor  the patients, which involved direct patient care related to  maintaining their emotional  well-\nbeing.    Specifically,  her primary duties  included assisting patients with their activities  of daily \nliving, such  as  personal  hygiene, mobility, checking their vitals, and making  sure  they  were \nproperly nourished and dressed.  She worked in that position for about seven years.  \n The  Claimant  moved  to  Dallas,  Texas, and  obtained  employment  at  Medical  City.    She \nworked  as  a  patient  representative  admitting  patients  into  the  hospital.    The  Claimant  left  that \nposition and went to work at Green Oaks Hospital.  She testified that she worked at Green Oaks \nas a  mental  health  technician,  performing identical employment duties  that  she had  done  at the \nTulsa Center for Behavioral Health.  The Claimant worked there for twelve years.  She left that \nposition after she got married and moved back to Conway.  Around 2018, the Claimant obtained \n\nJOHNSON – H300401 \n6 \n \nemployment at Conway Regional, as a mental health technician.  She performed similar duties that \nshe had at Tulsa Behavioral Health Center and Green Oaks Hospital.  As a mental health patient \ntechnician, the Claimant’s primary daily focus was on direct patient care, which included helping \nthem with their artwork, grooming, and monitoring their physical and emotional well-being.  The \nClaimant testified that she had a requirement that she be able to lift 50 pounds. \n With  respect  to  the  Claimant  prior  medical  conditions,  she  testified  that  she  had  pre-\nexisting problems in her lower back that included spinal stenosis, at L5; A-fib; lymphedema; high \nblood pressure; and cholesterol problems.  The Claimant admitted that she sustained a foot injury \nin a motor vehicle accident several years ago.  However, the Claimant denied having surgery on \nher foot.  The Claimant confirmed that she takes pain medications prescribed for her back, which \ninclude Tramadol and Hydrocodone.  However, the Claimant denied that her back condition ever \nprevented her from working.  She further denied that while working at Conway Regional, her back \ncondition caused her to have difficulty performing her job duties prior to the date of her injury. \n The Claimant described what happened to her on September 6, 2022: \nA.  I walked down to the cafeteria to get some breakfast, and I got my breakfast and \nI was walkin’ out of the door, comin’ through the door, and I fell. \n \nQ.  Okay.  You tripped and fell and injured that right shoulder; is that correct? \n \nA.  Correct.   \n \nQ.  Are you right-handed? \n \nA.  I am. \n \n           She confirmed that she underwent an MRI of her right shoulder, which revealed a massive  \nsupraspinatus and infraspinatus tear, and a bicep tear.  This MRI was done on October 14, 2022.  \nThe Claimant confirmed that she treated Dr. O’Malley.  He performed surgery on the Claimant’s \nright shoulder on January 10, 2023.  The Claimant denied that the surgery provided any relief of \n\nJOHNSON – H300401 \n7 \n \nher symptoms.  Instead, the Claimant testified that the surgery made her symptoms worse.  As a \nresult, another MRI was obtained of her right shoulder, which showed she had tearing again.  The \nClaimant was sent for her first functional capacity evaluation/FCE, which revealed reliable results.   \nIt  was performed  on September  6, 2023, and  the Claimant  performed  51 out of  51  consistency \nmeasures  and  was  returned  to  the  light  category  of  work.    Following  the  FCE,  the  Claimant \nunderwent an IME with Dr. Charles Pearce.  He opined that the Claimant was at maximum medical \nimprovement, and he wanted to refer her to another doctor for a reverse shoulder arthroplasty.  At \nthat point, the Claimant underwent evaluation by Dr. Hussey.  He performed a total right reverse \nshoulder  surgery  in  March  2024.    The  Claimant  confirmed  that  the second surgery  helped  to \nimprove her right shoulder condition.  She underwent a second FCE and it showed that she again \nput forth a reliable effort with a 47 out of 48 consistency measures.  At that point, the Claimant was \nreturned to work in the medium classification of work.    \n  On  November  22,  2024,  Dr.  Hussey  released  the  Claimant  to  be  at  maximum  medical \nimprovement  and  assigned  her  a  21%  whole  body  impairment  for  her  shoulder  injury.   The \nClaimant confirmed that the impairment rating is still being paid to her by the Respondents.  She \nconfirmed that she recently followed up with Dr. Hussey, and no additional medical treatment was \nrecommended at that time.  The Claimant confirmed that they ended up letting her go at her job at \nConway  Regional.  She  agreed  that  she  applied  for  FMLA  leave  and  once  that  ran  out,  they \nterminated her.  The Claimant testified that she was terminated from Conway Regional by Holly, \nin Human Resource.  She testified that she went into the office and talked to Holly, and she told her \nthat they no longer had any more work for her.  However, Holly told her if anything came up, she \ncould apply, and she did so.  The Claimant testified that she was told if there was a job she was \nqualified to do, they would call her.  According to the Claimant, this occurred prior to her second \n\nJOHNSON – H300401 \n8 \n \nsurgery.  The Claimant confirmed that after the second surgery, her doctor released her to medium \nduty work.  She testified that she applied for medical assistant work and  a patient representative \nposition at  Conway  Regional.    The  Claimant  denied  that  they  ever  called  her  back  about  any  of \nthose jobs.  Per the Claimant, previously, she received an email from them on one of the jobs saying \nshe was not qualified for the position.  \n  The  Claimant  denied  having  performed  any  work elsewhere since  her  termination from \nConway Regional.  She further denied having applied for Social Security Disability benefits.  The \nClaimant verified that she agreed to do vocational rehabilitation.  However, the Claimant denied \nthat  she  was ever offered  vocational  rehabilitation with  Ms.  Cecelia  Brunson.   According  to  the \nClaimant, she has never met Ms. Brunson or talked to her on the phone.  The Claimant admitted \nthat she is familiar with the vocational report submitted into evidence with a list of potential jobs.  \nSaid vocational report was signed by Ms. Brunson on June 2, 2025.  The Claimant confirmed that \nshe applied for majority of the jobs in the report.  However, the Claimant testified that some of the \njobs that she applied for in the report were not available.  She testified that she found this out after \nshe had applied for them.   \n  Ms.  Brunson  provided  the  Claimant  with  a  report  on  December  6, [2025] which  also \nidentified some jobs.  She testified that she applied for most of the jobs listed in that report.  The \nClaimant  confirmed  that  she  provided  her  attorney  with  three  pages  of  jobs for  which  she  had \napplied.   Specifically,  the  Claimant  testified  that  she applied  for  a  front  desk  receptionist  job  at \nReach Therapy Services.  She also applied at Pulaski County for an Enforcement Clerk II position, \nand  for  an  office  assistant position at  Arkansas  Lymphedema Therapy.   Per  the  Claimant, she \napplied for another  position  as  a patient  service  representative at RelateCare  in  Sherwood.  \nAccording  to  the Claimant,  she called  two  of  the  places on  the  list  because  they  did  not  have  a \n\nJOHNSON – H300401 \n9 \n \nwebsite  or  anything showing where  to  send  the application,  but  she  was unable  to contact them.  \nThe Claimant affirmed she has received no employment offers from any of her job search efforts.  \nAccording to the Claimant, she believes that she could do a receptionist job if she is trained to do \nthe position. \n  Although the Claimant is 62 years old, she does not want to retire.  Instead, she wants to \ncontinue working.  The Claimant explained how her injury has changed her life: \n A.  A lot.  I don’t do a lot of things that I used to do.  When I first had my first \n surgery, I couldn’t do anything had it not been for my husband.  He had to do \n everything for me.  I couldn’t’ even raise this arm [indicating] up.  This is as far as \n it would go. \n \n Q.  You’re talking about your right arm.   \n \n A.  My right arm, mm-hmm. \n \n Q.  And you’re moving it maybe 15 degrees away from your body. \n \n A.  Right.  It – it wouldn’t – and I did that for about a year or ‘til the next surgery, \n and then when Dr. Hussey did it, I was able to raise [sic] up,  but I still have, like, \n pain in it.  But if it had not been for him – \n \n Q.  Your husband? \n \n A.  Mm-hmm. \n \n Q.  Is that a yes? \n \n A.  And my family and my daughters, I couldn’t did anything. \n \n Q.  Following the surgery with Dr. Hussey, has it gotten better? \n \n A.  It is better, thank God.    \n \n   The Claimant testified that sometimes when she is mopping or sweeping the pain is not as \nbad  as  other  days.   According  to  the Claimant, she  does  some  volunteer  work  at  her  church.  \nHowever, she is  not  paid for  this  work.    According  to  the  Claimant,  she  has  not  done any \nvolunteering in almost a month and a half.  They distribute clothes to the homeless or people in \n\nJOHNSON – H300401 \n10 \n \nneed of clothes.  They also pass out food to the needy.  She admitted that she has been doing this \nwork since the accident.  The Claimant testified that when she does volunteer work for a day, it \ndepends on the day, but sometimes she is in pain around her shoulder area, and at other times she \nis not in pain.  She does not take pain medicine.  Instead, the Claimant takes Tylenol.   \n   On a daily basis, the Clamant testified that she visits her mother in Conway.  She can cook, \nbut her husband does most of the cooking.  The Claimant is right-handed.  She testified that she \ncannot reach  up  with  her  right  hand  and  do  her  hair  the  way  she  likes  to  do  it.    The  Claimant \ntestified that she has learned to use her left hand and compensate with it.  She agreed that she has \nbeen using her left hand more often than her right hand to get things done. \n   Under   cross-examination,   the Claimant confirmed   that   the   Respondents   took   her \ndeposition on March 19, 2025.  She confirmed that during her deposition they covered all the jobs \nexcept  for  maybe  the  one  at  Medical  City,  where  she  worked  in  admissions.   The  Claimant \nexplained that in that position, when people came to be admitted to the hospital, she would register \nthem in and interact with patients and get them where they needed to be. \n   She admitted that she has prior lower back problems, for which she has treated with Dr. \nKent.  The Claimant confirmed that she has been on Tramadol for years.  She admitted that prior \nto her deposition, Dr. Kent put her on Hydrocodone.  The Claimant confirmed that she takes both \nmedications.   \n   Her employment at Conway Regional was that of a patient care technician.  That particular \nunit of the hospital has a capacity of up to twelve patients.  Her job duties included checking vitals, \ndoing group activities, and sometimes helping the patients with getting dressed.  She worked from \n7:00 a.m. until 7:00 p.m.  The Claimant confirmed that she worked three days in a row and then \n\nJOHNSON – H300401 \n11 \n \nshe was off four days.  She admitted that the surgery with Dr. Hussey helped quite a bit, and she \ncould now raise her arm again. \n        The  Claimant  testified  during  her  deposition  that  she stated  she did  not  apply  for  the \nreceptionist  position  she had found out  about three  weeks  before.  However,  the  Claimant \nexplained that she did apply for a receptionist position on the day shift.  She confirmed she was \nreleased the first time from Dr. Hussey’s care on November 22, 2024.  From that date until her  \ndeposition was taken, the Claimant admitted that she testified that she had not applied anywhere \nsince  leaving  Conway  Regional.  The  Claimant acknowledged  that  she does  not  take any \nprescription pain medications for her shoulder.   She confirmed that if she decides to file for early \nretirement Social Security Disability benefits, she will list her shoulder and back as  reasons for \nneeding these benefits.  The Claimant confirmed that her husband is retired and she hangs out with \nhim during the day.   She also has two children in the Conway area.  The Claimant admitted that \nshe continues to do sisterhood with her church.  They have women’s day programs and things of \nthat nature.  She admitted that she testified during her deposition testimony that she had taken a \ntrip with her husband to Floridia around Christmas time and they stayed for three weeks to a month.  \nThey also traveled to Memphis for a week and a half.  At the time of her deposition testimony, the \nClaimant agreed that she had started going back to the gym.  She admitted that she stated during \nher deposition that she had not gone to the gym for two weeks because of her back.  The Claimant \nagreed that she also testified that her arm did not keep her from doing anything around the house \nbecause she knows her limits.  She confirmed that she recently applied for quite a few jobs.  The \nClaimant admitted that if she gets an offer from someone to go back to work, she will return to \nwork. \n\nJOHNSON – H300401 \n12 \n \nOn redirect examination, the Claimant admitted that her deposition was taken on March \n19,  2025.    She  verified  that  she  applied  for  jobs  at  Conway  Regional  before  the  vocational \nrehabilitation  report  came  out.  However,  the  Claimant  was  not  offered  any  of  those  jobs.    The \nClaimant believes that she was qualified for those jobs if training is provided.  She specifically \nagreed that one of the jobs was a nighttime receptionist job, and she fits the qualifications for that \nposition.   According  to  the  Claimant,  the  heaviest  thing  that  she  can  lift  at  the  gym is  ten (10) \npounds.  The Claimant denied having been to the gym recently.   \n Cecilia Brunson     \n The  Respondents  called  Ms.  Brunson  as  a  witness.    She  is  a  Vocational  Consultant.  \nAccording to Ms. Brunson, she reviews medical records and sometimes interviews Claimants to \nestablish  her  opinion  and  put  it  in  a  report.    She  gave  an  overview  of  her  qualifications.  Ms. \nBrunson holds a master’s degree in Rehabilitation Counseling.  She has worked as a Vocational \nConsultant  since 2018  and done  job  placement  since  2013.   Ms.  Brunson  has  owned  her  own \ncompany since 2018.   \n She confirmed that she reviewed some of the Claimant’s records.  Ms. Brunson confirmed \nthat she documented in her June 2, 2025, report what all she reviewed.  These documents included \nthe Claimant’s deposition and the functional capacity evaluation.  According to Ms. Brunson, she \ndocuments the Claimant’s restrictions, work history, and educational history.  She confirmed that \nshe  identified  some  job  openings  from  Indeed,  Conway  Regional  and  UAMS  websites.    Ms. \nBrunson agreed that the jobs identified in her report fit within the Claimant’s physical restrictions.   \n She confirmed that all of the jobs reflect that the Claimant could make the same or more money \nthan what she was making at the time of her injury. \n\nJOHNSON – H300401 \n13 \n \n  According to Ms. Brunson, the main factors or skills that the Claimant possess that should \nlead  to  her  return  to  work  including  working  in  the  medical  profession,  ability  to  deal  with  the \npublic, negotiating and persuasion skills with the patients, which are some of those skills that are \nvery important in the healthcare field.  Ms. Brunson opined that the Claimant’s shoulder injury \nshould not keep her from working, or a barrier to keep her from getting a job. \n On cross-examination, Ms. Brunson admitted that she did not interview the Claimant.  She \nstated that she did not interview the Claimant because the insurance company did not ask her to \ninterview her.   \n Ms. Brunson explained: \nQ. And did they ask you to provide assistance with helping her find these jobs \nor apply for these jobs? \n \nA. If she wanted assistance. \n \nQ. Okay.  Was this conveyed to her by you at any point? \n \nA. No. \n \n*** \n \nQ.  Do you have a medical background? \n \nA. No.   \n       \nMedical Evidence \n A  review  of  the  medical  records  shows  that  the Claimant  sought  medical  treatment on \nSeptember 27, 2022, from Dr. Gil Johnson at the College Family Park Clinic.  At that time, the \nClaimant reported a history of an injury that happened on September 6, 2022, when she fell while \nwalking out of the cafeteria.  She reported the following complaints: “1.  Right shoulder pain has \npersisted since the injury.  2. Left hand and thumb pain that has improved.”   Dr. Johnson noted \nthat physical examination of the Claimant’s right shoulder was suggestive of a suspected rotator \n\nJOHNSON – H300401 \n14 \n \ncuff injury and contusion to the left hand, wrist, and thumb.  He ordered x-rays of the Claimant’s \nright shoulder and also of her left hand, wrist, and thumb.  Dr. Johnson placed the Claimant on \nlight duty restrictions of no heavy lifting over 20 pounds until he had had a chance to re-evaluate \nher. \n X-rays performed of the Claimant’s right shoulder on September 27, 2022, showed “No \ndislocation.    There   was   moderate   osteoarthritis   of   both   the   acromioclavicular   joint   and \nglenohumeral joint.”   \n On  October  14, 2022, an  MRI  performed  on  the  Claimant’s  right  shoulder  with  an \nimpression of: \n 1. Complete full-thickness tear of the supraspinatus tendon. \n 2. Full-thickness tear of the anterior half of the infraspinatus tendon. \n 3. Moderate grade partial thickness tear of the subscapularis tendon. \n 4.  Medial  subluxation  of  the  long  head  of  the biceps tendon  from  the  bicipital \n groove. \n 5. Degenerative tears of the superior, posterior, and inferior labrum. \n 6.  Moderate  degenerative  arthrosis  of  the  glenohumeral  joint  effusion  with \n synovitis. \n 7. Large glenohumeral joint effusion with synovitis. \n 8. Moderate degenerative arthrosis of the acromioclavicular joint. \n 9.  Probable  23  mm  enchondroma  in  the  lateral  humeral  head.    Radiographic \n correlation recommended.     \n Dr. Johnson saw the Claimant on October 24, 2022, for a follow-up for results of the MRI.  \nHe  opined  that  the  results  revealed  the  following:  “Complete  full  thickness  tear  of  the \nsupraspinatus tendon.  Full thickness tear of the anterior half of the infraspinatus tendon.  Medial \nsubluxation of the long head of the biceps tendon from the bicipital groove.  Degenerative changes \n\nJOHNSON – H300401 \n15 \n \nwere noted.”  At that time, the Claimant continued in significant pain.  Dr. Johnson referred the \nClaimant to an orthopedist and continued her current medications and work restrictions.   \n On November 7, 2022, the Claimant was evaluated by Dr. James T. Howell due to shoulder \npain and related symptoms.  Dr. Howell assessed the Claimant with “Right shoulder rotator cuff \ntear,  right  shoulder  mass,  likely  enchondroma,  and  right  shoulder  glenohumeral  OA,  for  which   \nrecommended “right shoulder scope.”    \n Dr. Lawerance O’Malley evaluated the Claimant’s right shoulder on December 9, 2022.  \nHe had a long discussion with the Claimant regarding her diagnosis and treatment options.  They \ndiscussed  that  the  Claimant  would  likely  benefit  from  surgery.  From  a  work  standpoint,  Dr. \nO’Malley continued her on a five-pound lifting restrictions with her right arm. \n On January 10, 2023, Dr. O’Malley authored an Operative Note: \n PREOPERATIVE DIAGNOSES: \n1. Right shoulder massive supraspinatus and infraspinatus rotator cuff tear. \n2. Biceps tearing. \n3. Subacromial impingement. \n4. Distal clavicle arthritis. \n5. Labral tearing.   \n POSTOPERATIVE DIAGNOSES: \n1. Right shoulder massive supraspinatus and infraspinatus rotator cuff tear. \n2. Biceps tearing. \n3. Subacromial impingement. \n4. Distal clavicle arthritis. \n5. Labral tearing.   \nPROCEDURES PERFORMED: \n1. Right shoulder arthroscopy with arthroscopic rotator cuff repair. \n\nJOHNSON – H300401 \n16 \n \n2. Arthroscopic biceps tenodesis. \n3. Extensive debridement intraarticularly and also subacromial space. \n4. Distal clavicle excision. \n  5. Subacromial decompression. \n Dr. O’Malley saw the Claimant in follow-up clinic on January 27, 2023, due to her right  \nshoulder arthroscopy with massive rotator cuff repair, biceps tenodesis distal clavicle resection, \nsubacromial  decompression, and  extensive  debridement.  Overall,  the  Claimant  was  doing  well \nwith her pain being controlled.  Dr. O’Malley placed the Claimant on one-hand duty using only \nthe left arm and started her physical therapy at that time.      \n On  February  22,  2023,  the  Claimant presented  to Sarah  Barlow,  PA, at  Baptist  Health \nMedical Center in Little Rock, for follow-up clinic for her right shoulder surgery.  At that time, \nthe Claimant reported that she was doing “okay.” Her pain was improving and she had no \ncomplaints  or  concerns.   Barlow  noted  that  on  orthro  examination  the  focus  was  of  the  right \nshoulder.   Specifically, Barlow opined that the Claimant’s incisions were observed to be well \nhealed.  Barlow further opined that the Claimant was resting comfortably in her arm sling, and her \nright upper extremity was neurovascularly intact.      \n IMPRESSION: 6 [sic] weeks out right shoulder arthroscopy with massive rotator \n cuff repair, biceps tenodesis, distal clavicle resection, subacromial decompression \n and extensive debridement. \n PLAN: Overall  I think the patient is doing well.  We will get her prescription to \n start formal physical therapy today.  We will see her back in 1 month for follow-up \n evaluation.  From a work standpoint we will keep her on 1 arm duty using only the \n left arm.    We  will  see  her  back  in  4  weeks  for  follow-up  evaluation.    All  of  her \n questions were answered today she understands and agrees with this plan. \nThe Claimant was seen again on March 22, 2023, in follow-up clinic with Barlow for her \none-month  in  clinic evaluation due  to  her  right  shoulder  surgery.    At  that  time,  the  Claimant \nreported that her pain was improving and she had no complaints or concerns.  The Claimant stated \n\nJOHNSON – H300401 \n17 \n \nthat she was happy with the progress she was making.  In a separate letter dated March 22, Dr. \nO’Malley wrote to Whom It May Concern:  It is my medical opinion that Tina Johnson needs to \nremain on a l lb. lifting restriction below shoulder until further evaluation...”   \nOn April 28, 2023, the Claimant presented to Dr. O’Malley for follow-up evaluation of her \nright shoulder.  The Claimant stated that she was doing physical therapy at McMasters.  However, \nthe Claimant reported that she did not believe she was making good progress.  She still complained \nof a lot of pain.  Dr. O’Malley opined that the Claimant seemed to be pseudo paralytic.  He stated \nthat a lot of her decrease in motion was secondary to pain.  Specifically, Dr. O’Malley opined, “As \nher deltoid strength improves, I do believe the patient’s motion will get better.”  He continued her \nphysical restrictions.       \nDr. Jared Bishop, at Baptist Health Medical Center in Conway, evaluated the Claimant on \nMay 28, 2023, due to right shoulder injury.  He stated in progress notes that the Claimant was not \nmaking much progress at that point.  She still had significant pain.  Dr. Bishop stated that he would \nlike to get a repeat MRI of the Claimant’s right shoulder to evaluate the status of her surgical \nrepair. \nOn  May  31, 2023, the  Claimant  saw  Physician  Assistant, Barlow, due  to  right  shoulder \npain, with unspecified chronicity.  The Claimant presented to discuss the results of the MRI done \nsince her last visit.  Barlow opined that her MRI findings really were not that impressive.  As a \nresult, she continued the Claimant’s physical therpay.  The Claimant chose to undergo subacromial \ninjection.    Her  one-arm  duty  was  continued,  and  she  was  scheduled  for  a  follow-up  visit  in  six \nweeks.  The Claimant tolerated the procedure well with no immediate complications.   \n\nJOHNSON – H300401 \n18 \n \n An MRI of the Claimant’ right shoulder was done W/O contrast on May 31, 2023, with an \nimpression of: \n 1. Severely limited evaluation of the rotator cuff due to the severe motion   \n  degradation.  This can be evaluated with repeat to MRI or potentially CT   \n  arthrography if needed. \n 2. Severe attenuation of the supraspinatus and infraspinatus tendons at the footplate \n  with a probable full-thickness defect between the posterior supraspinatus and  \n  anterior margin of the infraspinatus tendons proximal to the critical zone.  Severe  \n  muscular volume is present. \n 3. Articular sided tearing and attenuation of the superior subscapularis tendon  \n  without full-thickness tear. \n 4. Probable biceps tenodesis. \n 5. Severe glenohumeral osteoarthritis with circumferential labral    \n  degeneration/tearing. \n 6. Remodeling of the humeral head and glenoid with retroversion of the glenoid. \n 7. Large effusion and subacromial/subdeltoid bursal distention containing debris. \n 8. Acromioclavicular joint arthritis and probable debridement or resorption of the  \n  distal clavicle with os acromial. \n     9. 2.4 similar cartilage lesion at the humeral head similar.  \nDr. O’Malley saw the Claimant in a follow-up clinic on August 25, 2023, due to her right \nshoulder  complaints.    At  that  time, the  Claimant was  struggling  with  active  motion  of  her right \nshoulder.  Overall, the Claimant continued to work hard with physical therapy.  She continued to \nstruggle with active motion but passively her range of motion was improving in her shoulder.  Dr. \nO’Malley continued the Claimant’s one-arm duty and ordered a functional capacity evaluation to \nassess the Claimant’s progress.  \nThe Claimant underwent an FCE on September 6, 2023, at the Functional Testing Centers \nin Mountain Home.  The results of this evaluation showed that a reliable effort was put forth during \nthis evaluation, with 51 of 51 consistency measures within expected limits.  Analysis of the data \ncollected  during  this  evaluation showed that  the  Claimant  did  put  forth a consistent  effort  and \n\nJOHNSON – H300401 \n19 \n \npassed all criteria for a reliable effort indicating that a significant degree of effort was put forth.  \nPer these results of this evaluation, the Claimant demonstrated the ability to perform the LIGHT \nduty classification of work.  \nDr. Charles Pearce saw the Claimant for an office visit on October 10, 2023, to evaluate \nher continued right shoulder pain and weakness.  His impression was “Right shoulder rotator cuff \narthropathy.  I suspect this is at least a grade IV or an IV B.  Dr. Pearce opined that the Claimant \nwas not at maximum medical improvement.  He also opined that the Claimant could perform light \ncategory work only, which is a permanent restriction.  Dr. Pearce specifically stated that the only \nway to address her pain and dysfunction would be with a reverse shoulder arthroplasty.  He went \non to state that this was the only surgical option. \nDr. Micheal Hussey evaluated the Claimant for her right shoulder complaints on November \n13, 2023.  He recommended that the Claimant undergo a total right reverse shoulder replacement.  \nDr. Hussey noted that the Claimant had pre-existing glenohumeral arthrosis based on the MRI scan \nin 2022 which predated her work injury.  However, Dr. Hussey stated that the Claimant did not \ncomplain  of  any  symptoms  and  had  never  sought  orthopedic  care  of  her  shoulder  prior  to  her \ninjury.  He also stated that the Claimant did have significant rotator cuff damage after her injury \nand due to the retear this led to worsening instability arthropathy of the shoulder joint.  Dr. Hussey \nstated: “It is my medical opinion that the majority of the Claimant’s continued pathology and \nproblem seen on exam and imaging are more than 51% related to her work injury.”  Restrictions \ninclude those recommended on the FCE for light duty.  He also stated that the Claimant would be \nat MMI around six months postoperatively.   \n\nJOHNSON – H300401 \n20 \n \nOn March 19, 2024, Dr. Hussey performed the surgical procedure on the Claimant’s right \nshoulder:  “1.    Right   reverse   total   shoulder   arthroplasty.    2.   Right   shoulder   removal   of \nnonabsorbable deep implant material.” \nThe   Claimant   underwent   follow-up   care   under   for   her   right   shoulder   condition \npostoperatively under the care of Dr. Hussey. \nOn October 15, 2024, the Claimant underwent a second FCE.  The results of this evaluation \nindicate that a reliable effort was put forth, with 47 of 48 consistency measures within expected \nlimits.   Analysis data collected during the evaluation show that the Claimant put forth a consistent \neffort and passed all criteria for a reliable effort indicating that a significant degree of effort was \nput forth.  The Claimant showed the ability to perform MEDIUM classification of work per the \nU.S. Department  of  Labor guidelines  as  a  frequency level  when  taking  into  account  a  normal \nworkday.                  \nDr. Hussey saw the Claimant for a follow-up visit on November 22, 2024.  He opined that \nthe  Claimant  could  return  to  work  at  the  medium  classification  of  work  with  the  restrictions \ndescribed in the FCE performed on October 15.  He stated that if the Claimant returned to work in \nher earlier job, accommodation would need to be made to prevent her from using the right upper \nextremity beyond the stated restrictions in the report of the FCE.  Dr. Hussey placed the Claimant \nat  MMI  as  of  November  22  with  a  35%  impairment  rating  to  the  right  upper  extremity,  which \ncorresponds to a 21% whole person impairment rating according to the 4\nth\n Edition of the AMA \nGuides  to  the  Evaluation  of  Permanent  Impairment.    According  to  this clinic note,  Dr.  Hussey \nstated that the impairment was calculated based off of range of motion deficit of the shoulder joint, \nas well as impairment given for the shoulder total joint arthroplasty noted on Table 27 of page 61.  \nUsing  the  combined  values  chart  on  page  322,  this conferred  to a  35%  impairment  to  the right \n\nJOHNSON – H300401 \n21 \n \nupper extremity.  He stated no further follow-up was necessary.  Dr. Hussey specifically stated, \n“All statements given above are within a reasonable degree of medical certainty.”    \nOn October 15, 2025, the Claimant saw Dr. Hussey for an office visit regarding her right \nshoulder.    At  that  time,  the  Claimant  stated  she  was  pleased  overall  with  the  outcome  of  her \nshoulder  surgery.    She  reported  that  her  shoulder  was  doing  relatively  well  and  she  was  still \npleased with the results overall.  However, the Claimant stated that she was having some unusual \ncomplaints of numbness tingling from her upper shoulder radiating down her shoulder, arm, and \nhand.  X-rays  of  the  Claimant’s  right  shoulder  demonstrated  well  aligned  reverse  shoulder \nreplacement without sign of loosening or failure.  Normal AC alignment.  Dr. Hussey opined that \nthe paresthesias from her upper shoulder and neck down the arm were most likely from possibly \ncoming from her neck or neurologic derangement.  He specifically stated “I do not think this is \ncoming from her shoulder.  She is still at MMI, and no further follow-up is necessary.”    \n                                      Adjudication \nA.  Permanent and Total Disability Benefits \n The Claimant asserts that she has been made permanently and totally disabled because of \nher compensable right shoulder injury of September 6, 2022.  \nArk. Code Ann. §11-9-519(e)(1) (Repl. 2002) provides: \"Permanent total disability\" means \nan inability, because of compensable injury or occupational disease, to earn any meaningful wages \nin the same or other employment.  Furthermore, the statute provides that the burden of proof shall \nbe on the injured employee to prove their inability to earn any meaningful wages in the same or \nother employment.  Ark. Code Ann. §11-9-519(e)(2) (Repl. 2002).  \n The burden of proving permanent total disability is on the Claimant.  The Claimant must \nprove  entitlement  to  these  benefits  by  a  preponderance  of  the  evidence.   Preponderance  of  the \n\nJOHNSON – H300401 \n22 \n \nevidence means the evidence that has greater weight or convincing force.  Metropolitan Nat’l Bank \nv. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nThe first issue for determination is whether the Claimant has been rendered permanently \nand  totally  disabled  due  to  her  compensable  right  shoulder  injury  of  September  6,  2022.  Dr \nO’Mally performed right shoulder surgery on January 10, 2023.  Specifically, Dr. O’Malley \nperformed right shoulder arthroscopy rotator cuff repair, among other things, as described above \ndue  to  a  massive  rotator  cuff  tear  being  demonstrated  on  an  MRI.    However,  the  Claimant \ncontinued  with  significant  right  shoulder  pain  despite  surgical  intervention  and  extensive \nconservative treatment.  Subsequently the Claimant came under the care of Dr. Hussey.  On March \n19, 2024, Dr. Hussey performed “1.  Right reverse total shoulder arthroplasty.  2. Right shoulder \nremoval of nonabsorbable deep implant material.”  Following this surgical procedure the Claimant \ndid  well  and  was  very  please  with  the  results.      The  Claimant  underwent  an  FCE  with  reliable \nresults on October 15, 2024.  Per this evaluation the Claimant put forth a reliable effort of 47 of \n48  consistency  measures within  expected  limits,  and  she  was calculated to be capable  of \nperforming MEDIUM duty work, with applicable restrictions.  On October 22, 2022, Dr. Hussey \nplaced  the  medium  duty work restrictions  on  the  Claimant  permanently.    He  also  evaluated  the \nClaimant to be at maximum medical improvement for her right shoulder injury.  Dr. Hussey also \nassessed  the  Claimant  with  a  21 % whole  body  rating permanent  impairment due  to  her injury, \nwhich the Respondents have accepted.  As of the date of the hearing, the Claimant continued to \nreceive payment for the rating.   \n Here, the permanent effects of the Claimant’s work-related shoulder injury would prevent \nher from returning to work as a mental health technician, however, the Claimant has the ability to \nearn wages in other less strenuous employment.  Her testimony proves she is not permanently and \n\nJOHNSON – H300401 \n23 \n \ntotally disabled.  The Claimant has applied for several positions within her restriction.  She testified \nthat she believes she could return to work as a receptionist provided, she receives training for the \nposition.    I found the Claimant’s testimony to be credible in this regard.  The Claimant’s testimony \nis corroborated  by  the  medical  evidence  (particularly  Dr. Hussey’s expert  opinion  of  her  being \nplaced permanently on medium duty work restrictions), and the Vocational Consultant,  Ms. \nBrunson’s,  identification  of  numerous  jobs  within  the Claimant’s physical limitations  and  prior \nwork experience in the medical profession. Moreover, no doctor has opined that the Claimant is \nincapable of returning to other employment in the medium duty category of work.  Accordingly, \nthe preponderance of the credible evidence before me clearly proves that the Claimant has at least \nthe physical capacity to earn meaningful wages in the medium classification of work.  Hence, there \nis  no credible evidence of  record before  me whatsoever proving  that  the Claimant has  been \nrendered permanently and totally disabled as a result of her compensable right shoulder injury of \nSeptember 6, 2022.   Therefore, based on the evidence before me, I find that the Claimant did not \nprove by a preponderance of the evidence that her compensable shoulder injury of September 6, \n2022, has rendered her permanently and totally disabled.        \nB. Wage-loss Disability        \n When a Claimant has sustained a permanent impairment rating to the body as a whole, the \nCommission is authorized to increase the disability rating based on wage-loss factors.  The wage-\nloss factor is the extent to which a compensable injury has affected the Claimant’s ability to earn \na livelihood.  Grimes v. North Am. Foundry, 316 Ark. 295, 872 S.W.2d 59 (Ark. 1994).  Ark. Code \nAnn. §11-9-522(b) (Repl. 2012) provides, in pertinent part:  \n(1) In considering claims for permanent partial disability benefits in excess of the \nemployee’s  percentage  of  permanent  physical  impairment,  the  Workers’ \nCompensation Commission may take into account, in addition to the percentage of \n\nJOHNSON – H300401 \n24 \n \npermanent physical impairment, such factors as the employee’s age, education, \nwork experience, and other matters reasonably expected to affect his or her future \nearning capacity.  \n Such  other  matters  are  motivation,  post  injury  income,  credibility,  demeanor,  and  a \nmultitude  of  other  factors.   Glass  v.  Edens,  233  Ark.  786,  346  S.W.2d  685  (1961); City  of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Curry v. Franklin Electric, 32 \nArk. App. 168, 798 S.W.2d 130 (1990); Cross v. Crawford County Memorial Hosp., supra. It is \nwell established that a Claimant’s prior work history and education are factors to be considered in \ndetermining  eligibility  for  wage-loss  benefits.   See  Cross  v.  Crawford  County  Memorial  Hosp., \nsupra.; Glass v. Edens, supra.; City of Fayetteville v. Guess, supra.; Curry v. Franklin Electric, \nsupra.  \n In the present matter, the Claimant is 62 years of age.  She graduated from high school in \n1981.  Afte graduating high school, the Claimant attended technical school in Russellville for about \na  year  but  did  not  complete  the  program.   The  Claimant  worked  at  Kimberly  Clark  for  thirteen \nyears.  She worked as a machine operator and back-up line leader.  After having premature twins, \nthe  Claimant  left  the  workforce  for  about  seven  years.    When  the  Claimant  returned  to  the \nworkforce,  she  went  to  work  at  AmTran  as  a  spot  welder  for  about  a  year  and  a  half.    While \nworking there, the Claimant began going to school for the medical assistant program and quit her \nemployment with AmTran.  The Claimant attended Eastern College in Little Rock about twenty \nyears ago where she earned certification in the medical assistant program.  She no longer has this \ncertification.   Other employment includes work at Frigidaire on the assembly line for over a year.  \nShe moved to Tulsa and began working at the Tulsa Center for Behavioral Health.  She worked as \nmental health technician.  The Claimant’s job duties  included  the  basic  care  for  mental  health \npatients.  She performed those duties for seven years.  She moved to Dallas, Texas and went to \nwork for Medical City for approximately two years.  At Medical City, the Claimant worked as a \n\nJOHNSON – H300401 \n25 \n \npatient representative, doing hospital admissions.  She left there and went to work at Green Oaks \nas  a  mental  health  technician  performing  similar  work  that  she  had  performed  in  Tulsa.    The \nClaimant worked at Green Oaks for twelve years.  She got married and moved back to Conway.  \nShe went to work for Conway Regional in 2018, as a mental health technician.         \n The parties stipulated that the Claimant’s average weekly wage at the time of her injury on \nSeptember 6, 2022, was  $505.80.    At  the  time  of  the  hearing, the  Claimant  was  not working.  \nAlthough she has reached the minimum age for retirement, the Claimant testified that she would \nlike to continue work.  As of the date of the hearing, the Claimant had not applied for Old Age \nRetirement Social Security benefits.  The Claimant has made applications for several jobs, but she \nhas not been offered a position as of the date of the hearing.  \nAs noted above, the Claimant has undergone two surgeries due to her compensable right \nshoulder injury.  The Claimant initially underwent surgery by Dr. O’Malley after an MRI revealed \na  complete  full  thickness tear of  the  supraspinatus  tendon  and  the  infraspinatus  tendon.    Dr. \nO’Malley  described  this  as  a  massive  tear.    Following  this  surgery, the  Claimant  continued  in \nsignificant  pain.   Ultimately,  the  Claimant came under the  care of Dr.  Hussey.    On  March  19, \n2024,  Dr.  Hussey performed  a “1.   Right  reverse  total  shoulder  arthroplasty.   2.  Right  shoulder \nremoval of nonabsorbable deep implant material.”  The Claimant credibly testified that she did \nwell postoperatively.  Her testimony is corroborated by the medical records.    \nThe Claimant’s husband is retired, and they have been able to travel with no problems or \nissues relating to her shoulder.  The Claimant can perform medium category of work.  She received \na 21% impairment rating which the Respondents have accepted and are paying.  Ms. Brunson has \nnamed several jobs that the Claimant can perform within her physical restrictions.  Dr. Hussey has \nopined that the Claimant’s restrictions for the  most  recent  FCE  are  permanent.   Since  her  last \n\nJOHNSON – H300401 \n26 \n \nshoulder surgery, the Claimant has continued to show interest in returning to the workforce.  Her \nskills  are  primarily  in  the  mental  health  profession,  which  would  potentially  require  her  to  be \ncapable of physically restraining a patient.  However, the Claimant is clearly not physically capable \nof performing this task without posing a safety risk to herself and others.  Given the nature of this \nwork and the safety risks involved, I am persuaded that the Claimant is unable to return to type of \nwork.  Ms. Brunson identified several jobs that the Claimant is potentially capable of performing, \nbut  she  has  not  been  able  to  obtain  employment  from  any  of  her  job  searches.    Ms.  Brunson \nconfirmed that she did not personally interview the Claimant, nor was she asked to provide any \nvocational rehabilitation help for the Claimant.     \nTherefore, considering the Claimant’s advanced age, permanent impairment rating of 21%, \nher medium physical restrictions, limited education, prior work experience, and all other matters \nbefore me, I find that the Claimant sustained a 15 % wage loss disability over and above her 21% \nimpairment rating.    \nC.  Attorney’s Fee \n The  parties  stipulated  that  the  Respondents  have  controverted  this claim for  additional \nbenefits in its entirety.  As such, the Claimant’s attorney is entitled to a controverted attorney’s fee \non all indemnity benefits awarded herein to the Claimant, pursuant to Ark. Code Ann. §11-9-715 \n(Repl. 2012).  \n                           AWARD \n Based  on  the  foregoing  findings  of  facts,  this  claim  for  permanent  and  total  disability \nbenefits is hereby respectfully denied and dismissed in its entirety.  \n However, in the alternative, the Claimant proved she sustained wage loss disability in the \namount of 15% over and above her 21% impairment rating.   \n\nJOHNSON – H300401 \n27 \n \n Accordingly, the Respondents are directed to pay benefits in accordance with the findings \nof fact set forth herein this Opinion.   \n All accrued sums shall be paid in lump sum without a discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809 (Repl. 2012).  \n  Pursuant to Ark. Code Ann. §11-9-715 (Repl. 2012), the Claimant’s attorney is entitled \nto a 25% attorney’s fee on the indemnity benefits awarded herein.   \n This fee is to be paid one-half by the insurance carrier and one-half by the Claimant.   \n      IT IS SO ORDERED. \n \n                                                                            ______________________                       \n                         CHANDRA L. BLACK \n                                Administrative Law Judge","textLength":53895,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO.: H300401 TINA JOHNSON, EMPLOYEE CLAIMANT CONWAY REGIONAL HEALTH SYSTEM, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, INC., TPA RESPONDENT OPINION FILED MARCH 4, 2026 Hearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in Little Rock, Pulaski Coun...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:3","denied:1"],"injuryKeywords":["shoulder","back","wrist","rotator cuff","neck"],"fetchedAt":"2026-05-19T22:30:32.687Z"},{"id":"alj-H204394-2026-03-04","awccNumber":"H204394","decisionDate":"2026-03-04","decisionYear":2026,"opinionType":"alj","claimantName":"Johnny Wright","employerName":"Central Maloney, Inc","title":"WRIGHT VS. CENTRAL MALONEY, INC. AWCC# H204394 March 04, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WRIGHT_JOHNNY_H204394_20260304.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WRIGHT_JOHNNY_H204394_20260304.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H204394 \n \nJOHNNY WRIGHT, EMPLOYEE CLAIMANT \n \nvs \n \nCENTRAL MALONEY, INC., SELF-INSURED EMPLOYER RESPONDENT \n \nRISK MANAGEMENT RESOURCES, TPA RESPONDENT \n  \n \nOPINION FILED 4 MARCH 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 11 December 2025 in Pine Bluff, Arkansas. \n \nMr. Gary Davis, The Gary Davis Law Firm, appeared for the claimant. \n \nMr. Guy Alton Wade, Friday, Eldredge & Clark, LLP, appeared for the respondents. \n \nI. STATEMENT OF THE CASE \n \n A Prehearing Order was filed on 30 September 2025 and admitted to the record as \nCommission’s Exhibit No 1. The parties agreed to the following Stipulations at the hearing: \nSTIPULATIONS \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n 2. Employee/self-insured employer/TPA relationship existed at all relevant  \n  times, including on or about 8 June 2022, when the claimant sustained  \n  compensable injuries to his right hand and fingers. \n \nISSUES TO BE LITIGATED \n \n 1. Whether the claimant is entitled to vocational rehabilitation.  \n \n 2. Whether the claimant is entitled to additional medical treatment. \n \n 3.  Whether the claimant is entitled to an attorney’s fee. \n \n All other issues are reserved. \n \n\nJ. WRIGHT- H204394 \n2 \n \nCONTENTIONS \n \n The parties’ Contentions are set out in their respective Prehearing Questionnaire \nresponses: \nClaimant \n \nClaimant contends that he sustained admitted compensable injuries 8 \nJune 2022. Claimant contends entitlement to a vocational \nrehabilitation evaluation. Claimant further contends that he is entitled \nto ongoing medical treatment. These matters are controverted. \nClaimant’s attorney respectfully requests that any attorney’s fees owed \nby Claimant on controverted benefits paid by award or otherwise be \ndeducted Claimant’s benefits and paid directly to Claimant’s attorney \nby separate check, and that any Commission Order direct the \nrespondent to make payment of attorney’s fees in this matter.  \n \nRespondent \n \nRespondents accepted the claim and paid applicable benefits, including \na 22% PPD rating to the claimant’s hand. Claimant was released on 13 \nMay 2023, with no restrictions. Claimant was in a work release at the \ntime of his injury and that program no longer exists.  \n \nII. FINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the claimant, observing his demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The Stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant has failed to prove by a preponderance of the evidence that he  \n  is entitled to vocational rehabilitation. \n \n4. The claimant has failed to prove by a preponderance of the evidence that he  \n  is entitled to additional medical benefits. \n \n5. Because the claimant has failed to prove that he is entitled to any additional  \n  indemnity benefits, he is not entitled to an attorney’s fee. \n \n \n \n \n\nJ. WRIGHT- H204394 \n3 \n \nIII. ADJUDICATION \nThe stipulated facts as outlined above are reasonable and accepted. It is settled that \nthe Commission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \n The claimant was the only witness at the hearing. The record consists of the hearing \ntranscript and the following exhibits: Commission’s Exhibit No 1 (the 30 September 2025 \nPrehearing Order); Claimant’s Exhibit No 1 (Respondents’ Exhibit No 1 (one index page and \n36 pages of medical records); and Respondents’ Exhibit No 2 (one index page and 14 pages of \nnon-medical records). \n Claimant’s Testimony \n The claimant is a sixty-six-year-old man with a High School Diploma, a General \nEducation Development (GED) certificate, and various college credits. He was working for \nthe respondent-employer through an Arkansas Department of Correction work-release \nprogram on the date of his injury. On 8 June 2022 a table saw accident caused the partial \namputation of the index and middle fingers on his right hand. The respondents provided \n\nJ. WRIGHT- H204394 \n4 \n \ncontemporaneous treatment. According to the claimant, the Department of Correction \nended the work-release program’s contract that placed inmates at the respondent-\nemployer’s facility sometime shortly after his injury. \n On 13 May 2023, the claimant’s treating physician placed him at maximum medical \nimprovement (MMI) with no restrictions. He was released from prison about a year later. \n The claimant stated that, in addition to having his High School Diploma and GED, \nhe had previously completed a community college program for radiology technicians and \nthat he had recently obtained a commercial driver's license (CDL). His CDL is valid until 24 \nApril 2031. He also has a valid Medical Examiner Certificate. He has worked with \nComputer Numerical Control (CNC) machines and has worked running a lathe for \nLockheed. He also testified about having scrapped materials in a junkyard, working as a \njanitor, and working in fast food restaurant(s). He knows how to drive a tractor and a \nforklift and has worked in lawn care and construction. Additionally, he has a certificate in \nSubstance Abuse Counseling and is a certified nurse aid (CNA).  \n After his injury, but before his release from prison, the claimant worked at a café \nthrough the prison’s work-release program. His duties ranged from unloading groceries and \ncleaning to cooking and running the grill. After his release from prison, the claimant \nworked for a time at a factory that manufactured pepper spray and worked another job \nunloading trucks. Yet he testified, “to tell you the truth, this hand is really just... it’s just I \ncan’t do nothing.” [TR at 33-34.] \n Since obtaining his CDL, he has been looking for a truck driving job, specifically \ndriving no-touch freight. He stated that he has sought this employment through the state’s \nArkansas Workforce offices and that he has completed several job applications online. But \nhe explained that, “after they find out I don’t have a year or two years, ‘cause some places \nwant a year experience, and some places want two-years’ experience. After they find out I \n\nJ. WRIGHT- H204394 \n5 \n \ndon’t have neither one, they will tell me, well, they gonna hold my application for about six \nmonths.” [TR at 32.] \n Regarding his claim for additional medical treatment, the claimant said that he \nbelieves that his therapy was “cut short.” [TR at 45.] He went on to testify that despite his \nMMI placement without restrictions, he still has some difficulty with his injured hand. He \nsaid that he had some trouble operating the grip on a spray gun, for example, when he \nworked cleaning tanks at the pepper spray factory. He also suggested that it would be \ndifficult to work again as a machinist or CNA. While he denied being offered any assistance \nfrom the respondents with finding another job, he also denied seeking re-employment with \nthe respondent-employer since being released from prison and moving to another part of \nthe state. \n Medical Records \n The claimant presented to Dr. David Black for an independent medical evaluation \non 26 October 2022. He complained of ongoing issues related to his compensable index and \nmiddle finger injuries. Dr. Black recommended additional surgical intervention and \nanticipated an eventual MMI placement about four months post-surgically. On 16 \nNovember 2022, Dr. Black performed the following: right index finger extensor tenolysis; \nright long finger extensor tenolysis; right index finger proximal interphalangeal (PIP) \nfusion; right long finger deep hardware removal; right long finger malunion correction with \nosteotomy. The claimant tolerated the surgery well and followed-up accordingly. A \nsubsequent procedure was then scheduled for 5 January 2023, with right index finger deep \nhardware removal and irrigation and debridement of osteomyelitis in the same finger. That \nprocedure, too, was tolerated well. He was returned to work with restrictions on 16 January \n2023 and referred for occupational therapy. [Cl. Ex. No 1.] \n \n\nJ. WRIGHT- H204394 \n6 \n \n The claimant continued to follow-up with Dr. Black until 8 May 2023. At that visit, \nDr. Black noted: \nI have reviewed the patient’s exams and x-rays with him today. \nPatient has reached maximal medical improvement as of today. \nPatient has no restrictions for use of his right hand. \nFinal impairment rating will be dictated separately. \nPatient will follow-up with me as needed. \n \n[Id.] A return-to-work note consistent with the same was written the same day. In a \nseparate letter dated 15 May 2023, Dr. Black assigned an impairment rating that equated \nto 12% of the whole person. \nDISCUSSION \n The two primary issues presented for litigation are whether the claimant is entitled \nto vocational rehabilitation and whether the claimant is entitled to additional medical \ntreatment. Those questions are addressed, in turn, below. \n A. THE CLAIMANT HAS FAILED TO PROVE BY A PREPONDERANCE OF  \n  THE EVIDENCE THAT HE IS ENTITLED TO VOCATIONAL    \n  REHABILITATION. \n \n The purpose of vocational rehabilitation \"is to place an emphasis on returning an \ninjured worker to work, while still allowing for vocational rehabilitation programs\" when \nthe Commission determines them to be \"appropriate.\" Ark. Code Ann. § 11-9-505(d). \nRegarding a claimant’s entitlement to vocational rehabilitation, Ark. Code Ann § 11-9-\n505(b)(1) states: \nIn addition to benefits otherwise provided for by this chapter, an employee \nwho is entitled to receive compensation benefits for permanent disability and \nhas not been offered an opportunity to return to work or re-employment \nassistance shall be paid reasonable expenses of travel and maintenance and \nother necessary costs of vocational rehabilitation if the commission finds that \nthe program is reasonable in relation to the disability sustained by the \nemployee. (Emphasis added.) \n \nThe claimant must prove his entitlement to vocational rehabilitation by a preponderance of \nthe evidence. Ark. Code Ann. § 11-9-705(a)(3). Preponderance of the evidence means the \n\nJ. WRIGHT- H204394 \n7 \n \nevidence having greater weight or convincing force. Metropolitan Nat'l Bank v. La Sher Oil \nCo., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n There is no question that the claimant sustained a permanent disability. The factual \ncircumstances here are unique though in that the claimant was working for the respondent-\nemployer at the time of his accident through a Department of Correction work-release \nprogram placement. He acknowledges that the Department’s contract with the respondent-\nemployer was either cancelled or not renewed sometime shortly after his injury. And the \nrespondent-employer acknowledges that it did not offer re-employment for that reason. The \nclaimant’s subsequent job placement was decided by the Department of Correction; and he \nagreed that he has not sought re-employment with the respondent-employer since he was \nreleased from prison and moved to a different part of the state. The question of the \nclaimant’s entitlement, then, turns on whether vocational rehabilitation is reasonable.  \n The claimant has not identified any specific vocational rehabilitation program that \nhe believes would be of benefit to him. Instead, he argues generally that the respondents \nhave the resources to help him find a no-touch freight job (like he would prefer) or to \nprovide him with some additional education so that he may be otherwise employable in \nsome new, unspecific field. I do not find this request for vocational rehabilitation to be \nreasonable in relation to his disability. \n First, as detailed above, the claimant has a wide range of career experience that he \ncould pursue for new work. He has a High School Diploma and a GED, and he \nacknowledged in his testimony that he had “four different certificates or training or degrees \nfrom community colleges.” He failed to provide credible testimony as to how his disability \nprevented him from securing employment across any of those different areas of career \nexperience. His testimony that working again as a machinist or in construction might be too \ndifficult was only speculative. Next, he was released at MMI without any permanent \n\nJ. WRIGHT- H204394 \n8 \n \nrestrictions. While his injuries did result in a permanent impairment, I find his statement \nthat his right hand “can’t do nothing” to be inconsistent with the objective medical findings \nrelating to his hand post-recovery. Finally, the claimant has been able to work in at least \nthree different jobs since he injured his hand. While he has not been able to find work in his \nnewly-credentialed career of preference (no-touch freight driving), he has failed to show \nthat he cannot find employment relative to his education and experience and that such an \ninability to find employment is related to his disability.  \n  In short, the claimant has a broad range of work experience and professional \neducation that he could utilize in finding employment. He has chosen, instead, to seek to \nhold the respondents liable for placing him into a very specific new field for which he just \nreceived licensure and which he acknowledges generally carries one-to-two years’ worth of \nrequired experience. I commend him for making the effort to obtain his CDL. But I do not \nfind it reasonable to hold the respondents liable for jump-starting his career in this new \nendeavor or otherwise supporting an educational pivot into yet another new career field. \nBecause the claimant has failed to prove by a preponderance of the evidence that a \nvocational rehabilitation program is reasonable in relation to his disability, his claim for \nthe same is denied. \n B. THE CLAIMANT HAS FAILED TO PROVE BY A PREPONDERANCE FO  \n  THE EVIDENCE THAT HE IS ENTITLED TO ADDITIONAL MEDICAL  \n  TREATMENT. \n \n Employers must promptly provide medical services which are reasonably necessary \nin connection with compensable injuries. Ark. Code Ann. § 11-9-508(a). However, injured \nemployees have the burden of proving by a preponderance of the evidence that medical \ntreatment is reasonably necessary. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004). What constitutes reasonable and necessary medical treatment is a fact \nquestion for the Commission, and the resolution of this issue depends upon the sufficiency \n\nJ. WRIGHT- H204394 \n9 \n \nof the evidence. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). A \nclaimant may be entitled to additional treatment even after her healing period is ended, if \nthat treatment is geared towards management of a compensable injury. Patchell, supra. An \nemployee who has sustained a compensable injury is not required to offer objective medical \nevidence in order to prove that he is entitled to additional treatment. Ark. Health Ctr. v. \nBurnett, 2018 Ark. App. 427, 558 S.W.3d 408.  \n The claimant has failed to prove by a preponderance of the evidence that he is \nentitled to additional medical treatment. Besides vaguely stating that he occasionally \nexperiences some swelling in his hand, the claimant offered no credible testimony about \nongoing problems related to his compensable injuries that might require additional medical \nmanagement. When pressed for some further explanation on the issue, the claimant only \nsaid that he believed his occupational therapy (in 2023) was “cut short.” The Commission is \nauthorized to accept or reject a medical opinion and is authorized to determine its medical \nsoundness and probative value. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 \nS.W.3d 878 (2002). Dr. Black, whose treatment records and opinion I find to be credible, \nmade no indication that any additional therapy was warranted at the time of the claimant’s \nrelease from care and placement at MMI. And the claimant has presented no contrary \nmedical evidence since his release from Dr. Black’s care to suggest that ongoing or \nadditional treatment is necessary. The claimant has simply failed to present any credible, \npersuasive evidence that additional medical treatment is reasonable or necessary. His \nclaim for additional medical treatment must, therefore, fail. \n C. THE CLAIMANT IS NOT ENTITLED TO AN ATTORNEY’S FEE. \n Because the claimant has failed to prove that he is entitled to any benefit that might \nprovide for an attorney’s fee, his claim for the same must also be denied. \n \n\nJ. WRIGHT- H204394 \n10 \n \nIV.  CONCLUSION  \n Consistent with the Findings of Fact and Conclusions of Law, this claim for \nadditional benefits is DENIED and DISMISSED. \nSO ORDERED. \n      ________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":17834,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204394 JOHNNY WRIGHT, EMPLOYEE CLAIMANT vs CENTRAL MALONEY, INC., SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED 4 MARCH 2026 Heard before Arkansas Workers’ Compensation Commission Administrative Law Judge JayO. Ho...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:6","denied:7"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:30:34.768Z"},{"id":"alj-H503667-2026-03-03","awccNumber":"H503667","decisionDate":"2026-03-03","decisionYear":2026,"opinionType":"alj","claimantName":"Rodney Carver","employerName":"Kohler Company","title":"CARVER VS. KOHLER COMPANY AWCC# H503667 March 03, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CARVER_RODNEY_H503667_20260303.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CARVER_RODNEY_H503667_20260303.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H503667 \n \nRODNEY CARVER, EMPLOYEE CLAIMANT \n \nvs \n \nKOHLER COMPANY, SELF-INSURED EMPLOYER RESPONDENT \n \nCORVEL ENTERPRISE CLAIMS, INC., TPA RESPONDENT \n  \n \nAMENDED OPINION FILED 3 MARCH 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 4 December 2025 in Little Rock, Arkansas. \n \nThe claimant appeared pro se. \n \nMr. Jarrod Parrish, Worley, Wood & Parrish, PA, appeared on behalf of the respondents. \n \nI. STATEMENT OF THE CASE \n \n A Prehearing Order was filed on 18 September 2025 and admitted to the record as \nCommission’s Exhibit No 1. The parties agreed to the following Stipulations at the hearing: \nSTIPULATIONS \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n 2. Employee/self-insured employer/TPA relationship existed at all relevant  \n  times, including on or about 15 July 2024. \n \n 3. At the relevant time, the claimant was earning an average weekly wage of  \n  $939.12, which would entitle him to weekly benefits\n1\n of $626    \n  for temporary total disability (TTD) and $470 for permanent partial disability \n  (PPD). \n \n 4. The respondents have controverted this claim in its entirety. \n \n \n \n \n1\n The Opinion originally filed on 27 February 2026 included a scrivener’s error relating to the listed \nbenefit amounts. There are no substantive changes in this Amended Order. \n\nR. CARVER- H503667 \n2 \n \nISSUES TO BE LITIGATED \n \n 1. Whether the claimant sustained a compensable back injury by specific  \n  incident on or about 15 July 2024.  \n \n 2. Whether the claimant is entitled to TTD benefits from 14 February 2025 to a  \n  date yet to be determined. \n \n All other issues are reserved. \n \nCONTENTIONS \n \n The parties’ Contentions are set out in their respective Prehearing Questionnaire \nresponses: \nClaimant \n \nMy lead supervisor moved me to a different department where I was \ngiven a task of pulling a pallet around the warehouse. The pallet jack \nneeds to be pulled and different parts need to be uploaded by hand. \nWhile doing this I hurt my back. \n \nRespondent \n \nRespondents maintain that claimant did not suffer a compensable \ninjury on or about July 15, 2024, or at any other time while working for \nRespondents. In the event compensability is established, Claimant has \nnot established entitlement to additional medical or temporary total \ndisability benefits. Respondents assert a lack of notice until April 3, \n2025. Therefore, in the event compensability can be established, \nRespondents’ liability for benefits cannot start before that date. To the \nextent Claimant has drawn short term or long-term disability benefits, \nand to the extent Respondents have paid all or some of the premium for \nthat coverage, Respondents assert a credit. \n \nThe Respondents reserve the right to raise additional contentions, or to \nmodify those stated herein, pending the completion of discovery.  \n \nII. FINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witnesses, observing their demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n\nR. CARVER- H503667 \n3 \n \n2. The Stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant has failed to prove by a preponderance of the evidence that he  \n  suffered a compensable injury to his back by specific incident. \n \n4. Because the claimant has failed to prove a compensable injury, the remaining \n  issues are moot and will not be addressed in this Opinion. \n \nIII. ADJUDICATION \nThe stipulated facts as outlined above are reasonable and accepted. It is settled that \nthe Commission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \n The claimant testified on his own behalf at the hearing. The respondents called Mr. \nPhillip Cantrell, Mr. Al “Dino” Morris, and Ms. Lekeisha Adams as witnesses. The record \nconsists of the hearing transcript and the following exhibits: Commission’s Exhibit No 1 (the \n18 September 2025 Prehearing Order); Respondents’ Exhibit No 1 (one index page and 72 \npages of medical records); and Respondents’ Exhibit No 2 (one index page and 16 pages of \nnon-medical records). \n \n\nR. CARVER- H503667 \n4 \n \n Claimant’s Testimony \n The claimant is a 44-year-old man who began working for the respondent-employer \nKohler on 31 October 2023. He worked primarily in the assembly plant putting together \nfaucet components. He testified that he was working as extra help for overtime on 15 July \n2024 when he hurt his back while moving product with a pallet jack. He made no attempt \nto report any injury. Unaware of any alleged workplace injury, his supervisor sent him \nhome without incident once the extra work was completed.  \n According to his testimony, the claimant continued going to work per usual until \ngoing to see his primary care physician (PCP) Dr. Kimberly Golden at the end of August \n2024 for his “unbearable” back pain. [TR at 19.] Dr. Golden prescribed some medication and \ncompleted some paperwork for a light-duty accommodation at work. He then continued \nworking until Dr. Golden took him off work in February of 2025. He has not since returned \nto work and eventually received notice of his termination on 19 July 2025. \n At his deposition before the hearing, the claimant testified that he had no history of \nback problems before his alleged workplace injury. On cross-examination, however, he \nacknowledged that his medical records showed him seeking treatment for back pain as \nrecently as April, May, and December of 2023. He also acknowledged other inconsistencies \nregarding his supposed date of injury and cause(s) of injury in his disability application \npaperwork. \n Respondents’ Witness Mr. Phillip Cantrell \n Mr. Cantrell testified that he was a supervisor at Kohler around the time that the \nclaimant alleges that he was injured on the job. He denied any specific recollection of 15 \nJuly 2024 but stated that the claimant never reported a workplace injury to him. \n \n \n\nR. CARVER- H503667 \n5 \n \n Respondents’ Witness Mr. Al “Dino” Morris \n Mr. Morris testified that he, too, was a supervisor at Kohler around the time that \nthe claimant alleges that he was injured on the job. He, too, denied any specific recollection \nof 15 July 2024 but stated that the claimant never reported a workplace injury to him. \n Respondents’ Witness Ms. Lekeisha Adams \n Ms. Adams testified that she is the Environmental Health and Safety Program \nManager at Kohler. She stated that new employee orientation, which the claimant \nparticipated in, includes information about the process for reporting workplace injuries. \nAccording to her testimony, she became aware of the claimant’s alleged workplace injury in \nMarch of 2025 after he applied for short-term disability indicating the same. She began an \ninvestigation of his claim. When she first asked the claimant about his alleged incident \nand/or injury, he was unable to recall when he might have hurt himself. He later offered an \nexplanation for injuring himself in another location outside of the building where he was \nworking on the day of his alleged injury. She also testified that the claimant was not \nactually at work on the day he alleges his injury to have occurred. \n Medical Records \n The claimant did not offer any medical evidence into the record to support his claim.  \nDISCUSSION \nThe respondents have controverted this claim in its entirety. The initial matter in \nthis claim is whether the claimant sustained a compensable injury by specific on 15 July \n2024. To prove a compensable injury by specific incident, he must establish four (4) factors \nby a preponderance of the evidence: (1) the injuries arose out of and in the course of his \nemployment; (2) the injuries caused internal or external harm to the body that required \nmedical services or resulted in disability or death; (3) the injuries are established by \nmedical evidence supported by objective findings, which are those findings which cannot \n\nR. CARVER- H503667 \n6 \n \ncome under the voluntary control of the patient; and (4) the injuries were caused by a \nspecific incident identifiable by time and place of occurrence. Mikel v. Engineered Specialty \nPlastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). \"Objective findings\" are those findings \nwhich cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-\n102(16)(A)(i). The requirement that a compensable injury must be established by medical \nevidence supported by objective findings applies only to the existence and extent of the \ninjury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). \nThe employee has the burden of proving by a preponderance of the evidence that he \nsustained a compensable injury. Ark. Code Ann. § 11-9-102(4)(E)(i). Preponderance of the \nevidence means the evidence having greater weight or convincing force. Metropolitan Nat'l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). If a claimant fails to \nestablish by a preponderance of the evidence any of the requirements for establishing a \ncompensable injury, compensation must be denied. Mikel, supra. \nThe claimant has failed to prove by a preponderance of the evidence that he \nsustained a compensable injury by specific incident on 15 July 2024. First, he was not a \ncredible witness. When confronted with records that contradicted prior sworn testimony, \nthe claimant was forced to acknowledge that he was previously untruthful about not having \na history of complaints of back pain. Similarly, he offered little to account for his supposed \ndate of injury being inconsistent across different forms. Lastly, he impliedly conceded to the \nflimsiness of his version of events when he made no attempt to question Ms. Adams around \nher testimony that he was not even working on the day of his alleged injury.\n2\n Having \n \n2\n I am mindful that an employee’s possible confusion around the specific moment an injury \noccurs is not necessarily fatal to his claim, so long as the time and place of injury are \nidentifiable. In Pulaski County Special Sch. Dist. v. Laster, 2015 Ark. App. 206; 465 S.W.3d \n421; 2015 Ark. App. LEXIS 262, our Court of Appeals explained:  \n \n\nR. CARVER- H503667 \n7 \n \nobserved his testimony and reviewed the record evidence, I do not find the claimant to be \ncredible. See Van Wagner, supra. \nThe claimant’s credibility troubles aside, he also failed to offer any medical evidence \ninto the record to support his claim. And he admittedly made no effort to make a report of \nan injury around the time he claims to have hurt himself. The respondents, conversely, \noffered medical records to show that the claimant had an established history of seeking \nevaluation and treatment for back pain. On 24 April 2024, for example, his PCP ordered an \nMRI because the claimant reportedly presented to an emergency department after his back \n“went out” while he was folding clothes. [Resp. Ex. No 1 at 10.] He eventually sought his \nPCP’s assistance in making a claim for disability, and she indicated that he injured himself \non 9 February 2025 (versus 15 July 2024, as he claims here) while “reaching and turning, \nstanding long periods, pulling” while “at work.” [Resp. Ex. No 1 at 71.]  \nThe record simply lacks credible testimony and is devoid of objective medical \nfindings in support of this claim. The claimant has, therefore, failed to prove by a \npreponderance of the evidence that he sustained a compensable injury by specific incident. \n Because the claimant has failed to prove a compensable injury, the other issues in \nthis claim are moot and will not be addressed in this Opinion. \n \n\"An injury is 'accidental' only if it is caused by a specific incident and is identifiable \nby time and place of occurrence[.]\" Ark. Code Ann. § 11-9-102(4)(A)(i). In Edens v. \nSuperior Marble & Glass, our Supreme Court held that \"identifiable by time and \nplace\" meant subject to identification and did not require the claimant to specify \nthe exact time of the occurrence. 346 Ark. 487, 492, 58 S.W.3d 369, 373 (2001). A \nclaimant's inability to specify the exact date and the precise time of the accidental \ninjury is a credibility issue that the Commission may weigh. Pafford Med. Billing \nServs., Inc. v. Smith, 2011 Ark. App. 180, 381 S.W.3d 921. Still, [Claimant] must \nshow a causal relationship between his employment and the injury. Wal-Mart \nStores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002).  \n \nBut here, after Ms. Adams testified that the claimant was not even working on the day of \nhis alleged injury, he made no effort to explain in the alternative how and when he may \nhave injured himself while at work. \n\nR. CARVER- H503667 \n8 \n \nIV.  CONCLUSION  \n Consistent with the Findings of Fact and Conclusions of Law, this claim for initial \nbenefits is DENIED and DISMISSED. \nSO ORDERED. \n      ________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":14072,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H503667 RODNEY CARVER, EMPLOYEE CLAIMANT vs KOHLER COMPANY, SELF-INSURED EMPLOYER RESPONDENT CORVEL ENTERPRISE CLAIMS, INC., TPA RESPONDENT AMENDED OPINION FILED 3 MARCH 2026 Heard before Arkansas Workers’ Compensation Commission Administrative Law Judge Ja...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:30:26.396Z"},{"id":"alj-H305681-2026-03-03","awccNumber":"H305681","decisionDate":"2026-03-03","decisionYear":2026,"opinionType":"alj","claimantName":"James Fannon","employerName":"Northwest Public Water Authority, Inc","title":"FANNON VS. NORTHWEST PUBLIC WATER AUTHORITY, INC. AWCC# H305681 March 03, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FANNON_JAMES_H305681_20260303.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FANNON_JAMES_H305681_20260303.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H305681 \n \nJAMES T. FANNON, EMPLOYEE     CLAIMANT \n \nNORTHWEST PUBLIC WATER \nAUTHORITY, INC., EMPLOYER      RESPONDENT \n \nTRAVEDLERS PROPERTY AND  \nCASUALTY OF AMERICA, \nINSURANCE CARRIER/TPA       RESPONDENT  \n \n    OPINION FILED MARCH 3, 2026 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 21\nST\n day of \nJanuary 2026, in Mountain Home, Arkansas. \nClaimant is represented by C. Michale White, Attorney at Law, of North Little Rock, \nArkansas. \nRespondents are represented by Guy Alton Wade, Attorney at Law, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 21\nst\n day of January 2026, to determine the issue \nof compensability of an alleged injury to the Claimant’s lower back on August 22, 2023, \nplus medical treatment, and attorney fees. At the time of the hearing, it was agreed that \nthe issue of temporary total disability would be reserved. The Respondents contend that \nthe Claimant did not sustain a compensable work-related injury to his lower back at that \ntime. A copy of the Pre-hearing order was marked “Commission Exhibit 1” and made part \nof  the  record without  objection.  The  Order  provided  that  the  parties  stipulated  that  the \nArkansas Workers’ Compensation Commission has jurisdiction of the within claim and \nthat an employer/employee/carrier-TPA relationship existed on or about August 22, 2023, \nthe date when the Claimant contends that he sustained an injury to his lower back. The \n\nFANNON – H305681 \n2 \n \nparties agreed that the Claimant earned an average weekly wage of $676.69 which would \nentitle him to TTD rate of $451.00. The Respondents controverted the claim in its entirety.       \n The Claimant’s and the Respondent’s contentions are all set out in their respective \nresponses  to  the  Pre-hearing Questionnaire  and  made  a  part  of  the  record  without \nobjection. Specifically, the Claimant contends that he sustained compensable injuries on \nAugust  22,  2023,  when  a  backhoe bucket struck  him  and  threw  him several  feet.  The \nRespondents  initially  accepted  the  claim  and  paid  for  medical  treatment  involving  the \ninjuries to his left hip, his left arm, and his left knee. Throughout the course of his claim, \nthe Claimant contends that his primary complaints have involved problems related to his \nlower back. However, the Respondents have denied liability for any benefits related to his \nlow back. The Claimant contends that he sustained a compensable injury to his low back \nand that additional medical treatment is reasonable and necessary, particularly treatment \nfor  his  continued  low  back  complaints. He further  contends  that  the  Respondents  are \nliable for the medical treatment that he obtained after their denial of liability for the injury \nto his low back.  At the time of the hearing, the Claimant reserved his claim for temporary \ndisability benefits. \n The Respondents contend that they accepted the Claimant’s contusion injuries to \nhis  left  knee  and  hip,  laceration  of  his  left  arm,  and  paid  the  applicable  medical  and \nindemnity  benefits.  The  Respondents  contend  that  the  Claimant  did  not  sustain  a \ncompensable low back injury but that any such complaints are the result of a pre-existing \ncondition for which they are not responsible.     \nFrom  a  review  of  the  record  as  a  whole,  to  include  medical  reports  and  other \nmatters properly before the Commission and having had an opportunity to observe the \n\nFANNON – H305681 \n3 \n \ntestimony and demeanor of the sole witness, the Claimant, the following findings of fact \nand conclusions of law are made in accordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That an employer/employee relationship existed on August 22, 2023, the date \nof the claimed injury.   \n3. That  the Claimant has failed  to prove  by  a  preponderance  of  the  credible \nevidence that he sustained a compensable work-related injury to his lower back \non August 22, 2023. \n4. That all remaining issues are moot. \n5. If  not  already  paid,  the Respondents are ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The  Pre-hearing  Order  along  with  the  Pre-hearing  questionnaires of the parties \nwere  admitted  into  the  record  without  objection. The Claimant  submitted an exhibit of \nmedical  records consisting  of  fifty-one  pages  that  was admitted  without  objection. The \nRespondents submitted an exhibit of one hundred and two pages of medical records that \nwas also admitted without objection.  \n The Claimant was the only witness to testify. He was thirty-eight (38) years old at \nthe time of the hearing and had attended a little college toward becoming a paramedic \nand had also served  in  the  military.  On  August  22,  2023,  he  was  employed  by  the \n\nFANNON – H305681 \n4 \n \nRespondent, Northeast Public Water Authority, where he had worked since April of 2021, \nas  a  water  operator-in-training.  His  job  consisted  of  repairing  water  lines  and  busted \nmains, along with other things. On Augst 22, 2023, they were training a new person and \nwere  repairing  a  small  leak.  The  Claimant  stated  he  was  digging  with  his  back  to  the \nbackhoe in a hole. The experienced backhoe operator was off that day and a backhoe \noperator-in-training was operating the backhoe. The Claimant had his shovel down, in an \nattempt to keep the water from flying into the guy’s face while he was digging up the water \nline. The  backhoe  had  a  problem  with a hydraulic-line, and  it  was  revving  up  and  the \nbucket from the backhoe hit him while he was down in the hole. It knocked him out of the \nhole and “I remember I went airborne for just a second and then I remember tumbling, \nand then I got stopped by a tree.  And when I tried to stand up, I kept falling down, and it \ntook a couple of minutes for the other two operators to find me because it had knocked \nme over.” (Tr. 7 – 9)  \n They  lifted  my  pants  leg  up  and  took me  to  Baxter  Regional  and  I  told them, “I \ncouldn’t really feel my leg, and my knee was buckling.” He went on to state that an X-ray \nof his knee was performed and that they gave him crutches and sent him back to work. \nHis  boss  then sent him  home.  He  returned  to  the  Baxter  Regional  Emergency  Room \nwithin a week on August 28\nth\n, 2023, due to pain in his lower back, down his left buttock, \nand continuing down his leg, which was causing pain almost like little needles. His hip \nwas fine, but if he put too much weight on it, it would ache a little. His main complaint was \nhis lower  back,  about  at  his  pant  line.  He  saw  Dr.  McConnel,  who  referred  him  to  Dr. \nGocio, who sent him for a nerve conduction study. (Tr. 10 – 12) He went on to testify that \nhe was off work from August 22\nnd\n to the beginning of December. When he returned to \n\nFANNON – H305681 \n5 \n \nwork,  he  was  placed  on  light  duty  and  mainly  drove  around  looking  for  leaks.  They \neventually  placed  Claimant  back  on  his  regular  job  and  then they found  out  that he \ncouldn’t hold his balance,  so  they  took him back  off  that  and  placed him back  on  light \nduty. He testified that they wanted him to return to the doctor. He was on regular duty for \nabout a week. In regard to his balance issues, he stated his leg just wobbles. “If I put too \nmuch weight on my left leg when I’m taking a step, it kind of - - it’ll want to jerk.” He stayed \non light duty until they terminated him in the summer of 2025. He was terminated after \nthe board members met and decided that he couldn’t do the job that he was hired to do. \n(Tr. 13 – 15) \n The  Claimant  admitted  he  had  suffered  from  problems  with  his  lower  back \npreviously, about six or seven years ago, but that it was higher and was due to a bulging \ndisc, which he recovered from. After he recovered, he stated he no longer experienced \nany  problems with his lower back. He couldn’t remember having any other medical \ntreatment  relating  to  his  back  until  August  22,  2023.  He  never  received  any  medical \ntreatment for his hip or his leg before. His problems at the time of the hearing consisted \nof just his lower back, and “It’s an everyday thing but not all day. It just depends on what \nI’m doing or how long I’m on my feet for. And it’s just like little sharp - - like it radiates \ndown almost to my foot but not quite, like I would say around the calf area, and then it \nfeels like I start getting a Charlie-horse trying to start out.”  Bending over also makes his \nback hurt, and he usually just sits on a heating pad to make it better. Medications don’t \nseem to help. (Tr. 16, 17) He went on to testify that there are times that he cannot get up \nand down from a chair without assistance, maybe a few times a week. He keeps a cane \nin his car, but didn’t want to be reliant on it, and used it a couple of times a week. He also \n\nFANNON – H305681 \n6 \n \ntestified that he experienced weakness in his leg all of the time, that he had been unable \nto go on hikes and could not top carry his kayak anymore, and that he had to obtain a \ntrailer to carry it. His girlfriend would go with him and assist him and drop him off when he \nwanted to go use his kayak. (Tr. 18- 20) \n He is currently working at his friend’s tint shop, where they do window tinting which \nhe can do while mostly sitting. He does have to stand some and he went on to state that \nhe has been able to perform his job. That was the only place that he has worked since \nleaving the Respondent. He tries to help his girlfriend around the house but even when \ndoing the dishes, “It’s like when I’m standing in one spot, it’ll - - it feels like - - almost like \nthe weight’s putting pressure on the back. So, I’ll get like halfway done, then I’ll have to \ngo sit down for a while, and then I’ll go back.”  He had previously been diagnosed with \nPTSD and panic attacks. He also admitted having some coronary issues. His heart rate \nand blood pressure would get really high, and they would give him medicine that would \ncalm  him  down.  He  admitted  having  slightly  high  blood  pressure and was  currently  on \nmedication and beta-blockers. (Tr. 21 – 23) He also testified that nothing had occurred \nsince the August 22, 2023, accident that would have caused his back problems. (Tr. 24) \n Under  cross  examination, the  Claimant  admitted  he  had  completed  the  tenth \ngrade, dropped out, and then obtained his GED while in the military. The Claimant also \nadmitted  that  he  had  injured  his  shoulder  during his  first  year  of training  and  was \ndischarged at that point, with what he described as a broken rotator cuff. The Claimant \nalso admitted he had been attempting for a period of time to obtain disability through the \nVA and had not been successful, but that it was still up in the air and he had not received \nany  treatment  through  the  VA. He also  admitted  attending  paramedic  school  at  ASU-\n\nFANNON – H305681 \n7 \n \nMountain  Home,  training as  a  detention  officer,  and previously working for  the  Marion \nCounty Sheriff’s office where he oversaw about 100 prisoners in a jail type setting. He \nalso  admitted  to  doing  some  marketing  work  with  BDS  and  working as  a  Samsung \nrepresentative, building displays, training employees, and that he had also worked as an \nE-Z Mart clerk and a pizza delivery driver. The Claimant had also obtained his license as \na bail bondsman and worked in that position for a period of time. (Tr. 25 – 28) In regard \nto  the  Claimant’s  PTSD,  he  admitted being diagnosed  by  his  family  physician,  Dr. \nPritchard, who had placed him on Xanax, Trazodone, and Buspirone. He also admitted \nthat he had obtained his medical marijuana card in 2022, which was still in place. He also \nadmitted that he had been previously treated for a bulging disc in his back, but that he \ncould not remember at the time of his deposition when that had occurred. (Tr. 29, 30) \n In regard to the incident involving the backhoe while working for the Respondent, \nthe Claimant admitted that he described it as when the bucket hit his left hip and scratched \nhis left arm. At that point, he noticed he was unable to put pressure on his left leg. He \nalso admitted that he testified in his deposition that the pain in his low back did not start \nuntil the feeling in his leg returned. There was no pain immediately. The Claimant went \non  to  state  that  everything  was  numb  on  the  left  side. He also  admitted  that  he  had \ntestified in his deposition that he had not noticed any pain in his lower back until two or \nthree months later and after Dr. McConnell had released him from treatment, which would \nhave been in December of 2023. He also admitted that the only time he had been treated \nfor any low-back complaints was for a bulging disc and that this would have been prior to \nthe  event  of August 2023.  (Tr.  32,  32) Under  further  cross  examination,  the  Claimant \nstated  he  had  been  telling  Dr.  McConnell  about  the  little  pin  prickles  prior  to  being \n\nFANNON – H305681 \n8 \n \nreleased  by  Dr.  McConnel, and that  the  actual  pain had  started  about  that  time.  The \nfollowing questioning then occurred: \n Q: Did you complain to McConnell or Gocio about any low-back pain? \n A: Yes, sir. \nQ: Well, maybe we’re not communicating, because you just told me a second ago \nthat you didn’t have low-back pain until after McConnell released you - - \nA: No, the – \nQ: - - in December of 2023. \nA: - - the low-back pain had come back. Before it was like - - like what I was telling \nhim, it was like spot - - \nQ: Come back from when? \nA: - - like almost, - - almost like needles. What was that? \nQ: Well, let me start over. You told us you didn’t have low-back pain when this first \nhappened in August of 2023, correct? \nA: Yes sir. \nQ: Okay. You also told me that you didn’t have low-back pain until  two  to  three \nmonths after you were released by Dr. McConnell, which was two or three months \nafter August of 2023, correct?    \nA: Yes, sir. \nQ: So that would be December when he released you correct? \nA: Yes, sir.  \nQ: And you would’ve gone back to work at that point? We’ll talk about that in a \nminute. Is that right? \n\nFANNON – H305681 \n9 \n \nA: Yes, sir. \nQ: Okay. So, you didn’t have low-back pain for two or three months from August \n22, 2023, until December of 2023, when McConnell released you, correct? \nA: Yes, sir. The actual - - like the real back pain, yes, sir. \nQ: Okay. So, what did you have in between? Was it just kind of fake back pain? \nA: No, sir. It was - - \nQ: Was it any back pain or anything? \nA: - - it was like needly, like it wasn’t like a pain. It was like - - \nQ: Like when your foot goes to sleep - -  \nA: Yeah. \nThe Claimant went on to state that it was hard to explain. (Tr. 33 – 35) \n The  Claimant  also  admitted  that  when  he  was  initially  taken  to  the  emergency \nroom, they only took x-rays of his left knee. He also admitted that the next physician that \nhe  saw  was  Dr.  McConnell  who he told about his  complaints.  He was  then  sent to  Dr. \nGocio for a nerve conduction study on his left leg. At some point, he was sent to physical \ntherapy.  The  Claimant  also  admitted  that  he  did  not  receive  an  MRI  on  his  back  while \nbeing treated by Dr. McConnell and Dr. Gocio. The Claimant testified, “Workman’s comp \nactually sent a nurse with me, and she told McConnell that they had permission to do the \nMRI, and he just said that he didn’t think it was needed, that it was weakness in my leg.” \nHe admitted that Dr. Pritchard, his family doctor, ordered an MRI of his back, and that \nwas the only one he ever remembered having other than the one while working for the \nsheriff’s department. The Claimant also admitted that Dr. Pritchard had not recommended \nany additional treatment for his back since the MRI. (Tr. 36 - 38) Dr. Pritchard had also \n\nFANNON – H305681 \n10 \n \nnot made a referral or recommended surgery. Dr. Gocio and Dr. McConnell both released \nthe Claimant to return to work in late November or early December. The Claimant had \nalso admitted that during his deposition in January of 2025, he had gone back into the \nfield and had only recently been moved into the office. (Tr.39) \n The Claimant also admitted that he liked to use his new kayak at least twice a week \nwhile it was warm and would go as frequently as he could. He also admitted being able \nto use a computer, having a driver’s license, and being capable of reading. He also \nadmitted to driving to his deposition in Little Rock. (Tr. 40 - 42)  \n When the Claimant presented to the ER after the accident involving the backhoe, \nhe  admitted  that  he  had  referred  to  his  left  knee  and  left  hip. In regard to Claimant’s \nsecond  visit  to  the  ER after  the  incident  with  the  backhoe on  August  28,  2023, the \nClaimant was questioned about the medical report referring to low-back pain, hip pain, \nand  knee  pain. More  specifically,  he was  questioned  about  the  report  providing  under \nComparison that they compared the MRI of the lower back on that date, to a CT of the \nspine of the same year, and was asked if he remembered going to the hospital for back \npain  in  June  of  2023, approximately  two  months  prior  to  the  incident  involving  the \nbackhoe. He responded that he remembered going vaguely, but that “It’s hard to keep up \nwith everything that’s happened.” “I mean, I remember going in, but I can’t remember \nwhat was said or what happened. That’s been a while  ago.” The  Claimant  was  also \nquestioned about the X-rays taken on August 23 after the accident that provided “Normal \nlumbar spine with mild degenerative changes from L3 to S1” and he responded “Yes, sir.” \nAdditionally,  the  Claimant  was  questioned  about  X-rays  of  his  hip  at  the  time, which \nprovided for no acute fracture of the pelvis and he again responded “Yes, sir.” The \n\nFANNON – H305681 \n11 \n \nClaimant also admitted that the EMG nerve conduction study performed at Baxter Health \non September 20, 2023, provided there was no electrophysiologic evidence recorded and \nwas not suggestive of any type of radiculopathy or pain running down his bruise. (Tr. 43 \n– 47) \n After presenting to Dr. Gocio, the Claimant followed up with Dr. McConnell, who \nrecommended  an  ACL  type  stability  brace, and  the  Claimant  admitted  Dr. McConnell \nstated that he could return to duty full duty. The Claimant also agreed he again returned \nto  Dr.  Gocio  on  November  27,  2023,  who  referred  to  the  MRI  and  the  EMG  nerve \nconduction study and stated “I believe a portion of the patient’s injuries represents a \nneuropraxia that has resolved without residual impairment“ and then released him from \nhis care. The Claimant contended that Dr. Gocio made a recommendation to the nurse \nfrom  Travelers  about  getting  a  second  nerve  conduction  study and  he appeared \nsomewhat  surprised  that  the  report made  no  mention  of  the offer  of  a second  nerve \nconduction  study  and that  he  could  return  to  work  with  whatever  restrictions  that  Dr. \nMcConnel felt necessary. (Tr. 51) The Claimant also agreed he returned to Dr. McConnell \non November 27, 2023, and Dr. McConnell provided that he could return to work with no \nrestrictions and had reached MMI. (Tr. 52) \n The Claimant was then questioned about a visit to the emergency department in \nJanuary of 2024, with a chief complaint of acute lower back pain onset with no trauma to \nthe  site.  The  Claimant  first  responded  that  he  could  not  honestly  remember  the  visit \nexactly. He later agreed the report provided he just woke up with severe pain to his lower \nback and had not suffered any trauma. He agreed he was saying that he just woke up \nwith the pain. “That’s whenever I was getting all the feeling back in my leg.” (Tr. 55, 56) \n\nFANNON – H305681 \n12 \n \nAfter the end of cross examination, and after a discussion between the Claimant and his \nattorney, the Claimant rested.  \nThe Claimant’s medical Exhibit consisted of 50 pages.  Claimant  presented  to \nBaxter Regional ER on August 22, 2023, with a complaint of knee and hip pain. (Cl. Ex. \n1,  P.  1 - 6)  The  Claimant  then  returned  to  the  ER  on  August  28,  2023, and  the  report \nprovided  under  “Diagnosis  for  Today’s  Visit”  for  lumbar  radiculopathy  and  left  leg \nweakness. X-rays of the left pelvis and an MRI of the lumbosacral spine were taken. The \nMRI on this date was compared to a CT scan of the lumbosacral spine taken on June 16, \n2023. The report provided that the bones and joints of the lumbar spine alignment were \nnormal  and  unchanged  and  vertebral height  was  maintained.  Narrow  zones  of marrow \nedema  adjacent  to  the  endplates  were  noted with no  fractures  or  subluxations.  The \ndiagnosis provided for lumbar radiculopathy with left leg weakness. (Cl. Ex. 1, P. 7 – 18) \nThe Claimant then presented to Knox Orthopedics and was seen by Dr. McConnell \non September 5, 2023, with a chief complaint of left hip pain and issues involving the left \nknee. X-rays of the lumbar spine were obtained. The report referred to multiple series of \nX-rays and an MRI of the lumbar spine and provided there was nothing on the Lumbar \nMRI that would explain the complaint. The report further stated that an EMG of the left \nlower extremity would assist in the diagnosis. (Cl. Ex. 1, P. 19 – 21) \nThe  Claimant  presented  to  Baxter  Health  Physical  Therapy  on  September  20, \n2023, for a nerve conduction study and the report stated that it was a normal study. All \nnerve conduction studies were within normal limits and all muscles showed no evidence \nof electrical instability. (Cl. Ex. 1, P. 22 – 25) \n\nFANNON – H305681 \n13 \n \nThe Claimant returned to Knox Orthopedics and Dr. McConnell on November 27, \n2023, and the report provided that the Claimant had a gait abnormality while walking that \ngets worse with fatigue. The doctor opined that the knee was stable, and it was a muscular \nproblem, and that he would allow the Claimant to return to work in two weeks. (Cl. Ex. 1, \nP.  26,  27)    The  Claimant  then  returned  to  Dr.  McConnel  on  January  8,  2024,  and  the \nreport provided that there was full range of motion of the left knee, that the Claimant had \nreached MMI, and that he could return to work full duty with no restrictions and with no \nimpairment,  that  his  leg  buckling  was  essentially  gone,  and he referred  to  lumbar \ndegenerative  disc  disease.  (Cl.  Ex.  1,  P.  28,  29) On  January  31,  2024,  the  Claimant \npresented to the Baxter Regional ER with the chief complaint of lower back pain with a \nThursday onset, and  with  no  trauma  reported. The  report  referred  to  a  finding  of \nsacroiliitis. (Cl. Ex. 1, P. 30 – 32) \nOn  March  1\nst\n,  2024,  the  Claimant  presented  to  the  Regional  Family  Medicine \nClinic, and Dr. Jamie Pritchard, with low back pain, left hip pain, and obstructive sleep \napnea. The report provided a finding of mild arthritic changes at L5 of the lumbar spine \nthat is otherwise normal, with normal spacing of the vertebral heights in the lumbar spine, \nwith  very  tiny  osteophyte  formation and with  no  subluxation.  (Cl.  Ex.  1,  33 – 35)  The \nClaimant returned again to Dr. Pritchard on March 6, 2024, with a complaint of low back \npain and left hip pain, and X-rays with two views were taken of the sacroiliac joints. Under \nimpression, the  report stated  that  they  were  normal.  Additionally,  X-rays  of  the  pelvis \nprovided it was normal. (Cl. Ex. 1, P. 36, 37)   \nOn April 1, 2024, the Claimant returned to Dr. Pritchard for a follow-up. The report \nmentioned a  referral  to  Ozark  Physical  Therapy  for  low  back  pain  and additionally \n\nFANNON – H305681 \n14 \n \nmentioned chronic PTSD. (Cl. Ex. 1, P. 38 – 40) The Claimant then again returned to Dr. \nPritchard on May 9, 2024, for a follow-up for back pain. The report provided that a lumbar \nMRI would be ordered, and that the Claimant would be contacted if it was approved by \ninsurance. (Cl. Ex. 1, P. 41, 42) The Claimant again returned to Dr. Pritchard on May 13, \n2024, for left knee pain, and the X-ray provided for a normal left knee. (Cl. Ex. 1, P. 43) \nThe records provided that the Claimant did not return to Dr. Pritchard until October 14, \n2024. The  report  provided  that the  Claimant’s  depression had worsened  due  to  his \nphysical limitations, referred to left hip pain, depression, and generalized anxiety disorder. \n(Cl. Ex. 1, P. 44 to 46) \nOn June 11, 2024, the Claimant received another MRI of the lumbar spine due to \nlow back pain. The report mentioned the Claimant being hit by a forklift in 2023, which \nwould appear to be clearly incorrect. In any case, under impression, the report provided \nfor some early degenerative changes with mild degenerative changes of the facet joints \nand  some  minimal  disc  disease.  The most pronounced disc  changes were  at  the  L3-4 \nlevel, where there is a tiny protrusion of a disc, but which had not changed since August \n28, 2023, to any degree. Minimal bulging at L4-5 and L5-S1 level as seen previously had \nimproved  to  some  degree. Mild  narrowing  of  the  left  neural  foramen  at  the  L5-S1  was \nnoted. (Cl. Ex. 1, P. 47)   \nClaimant’s final medical record involved another visit to Dr. Pritchard on October \n14,  2024,  and referred  to  generalized  anxiety  disorder  and  again  mentioned left  knee \npain.  No  mention  of  lower  back  pain was  mentioned.  Under  assessment,  the  report \nreferred to PTSD. (Cl. Ex. 1, P. 48 – 50)  \nThe  Respondents medical  records entered  into  the  record consisted  of many  of \nthe same reports provided by the Claimant with some additional medical records added.  \n\nFANNON – H305681 \n15 \n \nA report provided that the Claimant presented to Baxter Regional on October 11, 2023, \nfor physical therapy, and the report provided for no pain, but for mild limitation of motion, \nand with severe limitation of function. After the discharge from physical therapy, the report \nprovided for a very mild limitation of function. Dr. Allan Gocio assessed neurapraxia of \nthe left lower extremity. (Resp. Ex. 1, P. 65 – 77)   \nOn November 27, 2023, the Claimant presented to Dr. Gocio with complaints of \nback and hip pain, with lower extremity weakness.  The report provided for left lumbar \nradiculopathy with neuropraxia of the left lower extremity. Dr. Gocio provided he would \ndefer to Dr. McConnell from the standpoint of returning to work. (Resp. Ex. 1, P. 82 – 85) \nDr. McConnell issued a return to work note on December 11, 2023, and stated that the \nclaimant could return to work full duty but must wear a stability brace. (Resp. Ex. 1, P. 81)    \nOn December 1, 2023, the Claimant again presented to Baxter Regional Physical \nTherapy and the report provided he stated that there was no pain, with a mild limitation \nto function. (Resp. Ex. 1, P. 86 – 90) The Claimant presented to Dr. McConnell on January \n8,  2024.  The  report  provided  that  the  Claimant’s  leg  buckling  and  instability was \nessentially gone and that he suffered from intervertebral disc degeneration. The report \nwent on to provide that the Claimant had reached MMI and could return to work with no \nrestrictions and no impairment. (Resp. Ex. 1, P. 91 – 92) \nA report from Dr. Patrick Tobias, dated July 23, 2024, provided that the Claimant \nsuffered from additional health issues which included heart palpitations, bradycardia, and \nessential hypertension. (Resp. Ex. 1, P. 93 – 96) The final medical report entered into the \nrecord  by  the  Respondents was  also  one  from  Dr.  Tobias  dated  May  21,  2025,  which \n\nFANNON – H305681 \n16 \n \nreported that the Claimant still was suffering from heart palpitations, anxiety, and other \nheart issues. (Resp. Ex. 1, 97 – 100)   \n  DISCUSSION AND ADJUDICATION OF ISSUES \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving by a preponderance of the evidence that he is entitled to compensation benefits \nfor the claimed injury to his lower back. In determining whether the claimant has sustained \nhis burden of proof, the Commission shall weigh the evidence impartially, without giving \nthe  benefit  of  the  doubt  to  either  party.  Ark.  Code  Ann. 11-9-704. Wade  v.  Mr. \nCavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989). Further, the Commission has the \nduty to translate evidence on all issues before it into findings of fact. Weldon v. Pierce \nBrothers Construction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). \nIn regard to the current claim before the Commission, Claimant contends that he \ninjured his back  on August  22, 2023,  while repairing  water  lines and employed  by  the \nRespondent while he was down in a hole with a shovel, with his back towards a backhoe, \nwhen he was hit by the bucket of the backhoe, which knocked him out of the hole and \ninjured his lower back. The Claimant was immediately taken to Baxter Regional ER with \na complaint of pain in his left knee and left hip. Only his left knee was X-rayed, and he \nwas released to return to work with crutches. His boss sent him home.   \nHe  returned  to  the  Baxter  Regional  ER  on  August  28,  2023, due  to  pain  in  his \nlower back, down his left buttock, which continued to his left leg. The diagnosis for the visit \nprovided for lumbar radiculopathy and left leg weakness. X-rays of the pelvis and an MRI \nof the lumbosacral spine were taken. The MRI on this date was compared to a previous \nCT scan of the lumbosacral spine taken on June 16, 2023, and the report provided that \n\nFANNON – H305681 \n17 \n \nthe bones and joints of the lumbar spine were in normal alignment and unchanged and \nthe vertebral height of the vertebrae was maintained. Later, on September 5, 2023, the \nClaimant presented to Knox Orthopedics and Dr. McConnell, with the chief complaint of \nleft  hip  pain  and  issues  involving  the left knee. The  report  provided  there  was  nothing \ninvolving  the  MRI  of  the  lumbar  spine  that  would  explain  the  complaint.  Later, on \nSeptember 20, 2023, a nerve conduction study provided that it was a normal study within \nnormal limits and all muscles showed no evidence of electrical instability. The Claimant \nreceived another MRI of his lumbar spine on June 11, 2024. The report provided, under \nimpression, for some degenerative changes with mild degenerative changes of the facet \njoints, and  some  minimal  disc  disease.  Additional  X-rays  and  findings  by  Dr.  Pritchard \nprovided for mild arthritic changes at L5 of the lumbar spine but that it is otherwise normal, \nwith normal spacing.  \nThe Claimant continued to see Dr. McConnell, Dr. Gocio, and his personal family \nphysician,  Dr.  Pritchard.  Dr.  Gocio  stated  that  he  would  defer  to  the  opinion  of  Dr. \nMcConnell, and Dr. McConnell opined that the Claimant had reached MMI, could return to \nwork full duty with no restrictions, and with no impairment.  \nUnder workers’ compensation law in Arkansas, a compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability and it must  be  stated  within  a  degree  of  medical  certainty. \nSmith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).  Speculation  and \nconjecture cannot substitute for credible evidence. Liaromatis v. Baxter County Regional \nHospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).  More  specifically,  to  prove  a \ncompensable injury, the claimant must establish by a preponderance of the evidence: (1) \n\nFANNON – H305681 \n18 \n \nan injury arising out of and in the course of employment; (2) that the injury caused internal \nor external harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in A.C.A. 11-9-\n102 (16) establishing the injury and (4) that the injury was caused by a specific incident \nand identifiable by time and place of occurrence. If the claimant fails to establish any of \nthe requirements for establishing the compensability of the claim, compensation must be \ndenied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). \nThe injury for which the claimant seeks benefits must be established by medical \nevidence supported by objective findings which are those findings that cannot come under \nthe voluntary control of the patient. A.C.A. 11-9-102 (16). It is also important to note that \nthe claimant’s testimony is never considered uncontroverted. Lambert v. Gerber Products \nCo. 14 Ark. App. 88, 684 S.W.2d 842 (1985).  \nHere the medical records clearly provide that the claimant suffered from lower back \nissues and  had previously received  a  CT  of his lower  back  on  June  11,  2023, only \napproximately  two  months  prior  to  the  MRI  of  August  28\nth\n,  2023,  after  the  incident \ninvolving the backhoe. No change was noted between the scans. Dr. McConnell opined \nthat the Claimant could return to full duty work with no restrictions and no impairment. It \nis noted that an employer takes  the employee as it finds  him and  employment \ncircumstances that aggravate preexisting conditions are compensable. Here, there is no \nproof  that the incident  involving  the  backhoe  was  the  cause  of  the  claimants  alleged \nissues involving his lower back. See Heritage Baptist Temple v. Robinson, 82 Ark. App. \n460, 120 S.W.3d 150 (2003). \n\nFANNON – H305681 \n19 \n \nIt  is  noted  that a Claimant  is  not  required  in  every  case  to  establish  the  casual \nconnection between a work-related incident and an injury with an expert medical opinion. \nSee Wal-Mart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  990  S.W.2d  522  (1999). \nArkansas  courts  have  long  recognized  that  a  causal  relationship  may  be  established \nbetween  an  employment-related  incident  and  a  subsequent  physical  injury  based  on \nevidence that the injury manifested itself within a reasonable period of time following the \nincident so that the injury is logically attributable to the incident, where there is no other \nreasonable explanation for the injury. Hail v. Pitman Construction Co. 235 Ark. 104, 357 \nA.W.2d 263 (1962).  \nHere, the  claimant had suffered from  issues with his lumbar spine prior  to  the \nclaimed  work-related  injury. No  medical  reports  of  record made  objective  findings  that \nmake  any connection  between the  claimed injury on Augst  22,  2023, and the claimed \nlower back problems. The Claimant was clearly suffering from lower back problems prior \nto the incident involving the backhoe. \nAs stated above, the workers’ compensation claimant bears the burden of proving \nthe compensable injury by a preponderance of the evidence. A.C.A. 11-9-102 (4) (E) (i). \nA compensable injury is one that was the result of an accident that arose in the course of \nhis employment and that it grew out of or resulted from the employment. See Moore v. \nDarling Store Fixtures, 22 Ark. App 21, 732 S.W.2d 496 (1987). Preponderance of the \nevidence  means  the  evidence  having  greater  weight  or  convincing  force. Metropolitan \nNat’l Bank v. La Sher Oil Co., 81 Ark. App. 263, 101 S.W.3d 252 (2003). Based upon the \navailable evidence in the case at bar, there is no alternative but to find that the Claimant \nhas failed to satisfy  the  required burden  of  proof  to  show  that the claimed  injury  to his \n\nFANNON – H305681 \n20 \n \nlower back on August  22,  2023, is the  cause  of  his lower back  problems and that \nconsequently the claim is not compensable under the Arkansas Workers’ Compensation \nAct. \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, there is no alternative but to find that the Claimant has failed to prove by a \npreponderance of the credible evidence that his claim for an injury to his lower back, on \nAugust 22, 2023, is a compensable claim under the Arkansas Workers’ Compensation \nAct. Consequently,  all  other  issues  are  moot. If  not  already  paid,  the  respondents  are \nordered to pay the cost of the transcript forthwith. \nIT SO ORDERED: \n \n      ________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":36715,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305681 JAMES T. FANNON, EMPLOYEE CLAIMANT NORTHWEST PUBLIC WATER AUTHORITY, INC., EMPLOYER RESPONDENT TRAVEDLERS PROPERTY AND CASUALTY OF AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 3, 2026 Hearing before Administrative Law Judge, James D...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["back","hip","knee","shoulder","rotator cuff","lumbar","fracture"],"fetchedAt":"2026-05-19T22:30:28.502Z"},{"id":"alj-H405925-2026-03-03","awccNumber":"H405925","decisionDate":"2026-03-03","decisionYear":2026,"opinionType":"alj","claimantName":"Ashley Ritter","employerName":"Ozark Adult Personal Care, LLC","title":"RITTER VS. OZARK ADULT PERSONAL CARE, LLC AWCC# H405925 March 03, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RITTER_ASHLEY_H405925_20260303.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RITTER_ASHLEY_H405925_20260303.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H405925 \n \nASHLEY RITTER, EMPLOYEE      CLAIMANT \nOZARK ADULT PERSONAL CARE, \nLLC, EMPLOYER         RESPONDENT \nLIBERTY MUTUAL, CARRIER/TPA      RESPONDENT \n \nOPINION AND ORDER FILED MARCH 3, 2026 \nA Hearing before Administrative Law Judge James D. Kennedy in Batesville, \nArkansas, was held on February 25, 2026. \nClaimant was pro-se and failed to appear. \nRespondents were represented by Mike Ryburn, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 25\nth\n day of February 2026, in \nBatesville, Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute pursuant \nto Arkansas Code Ann. 11-9-702 and 11 C.A.R. 25-110(d) which was previously named \nRule 099.13 of the Arkansas Workers’ Compensation Commission.  The claimant  was \npro se and failed to appear. The Respondents were represented by Mike Ryburn of Little \nRock, Arkansas. The Claimant had previously been represented by Mark Alan Peoples, \nwho  was  allowed  to  withdraw  by  an  Order  of  the  Full  Commission, dated October 31, \n2025.  \n A Motion to Dismiss was filed on November 5, 2025. An AR-C had been previously \nfiled on September 12, 2024, where the Claimant contended she had sustained injuries \nto multiple body parts including her right ankle, left arm, and spine, due to a motor vehicle \n\nRITTER – H405925 \n2 \n \naccident  on  July  31,  2024.  The  Claimant  filed  a Prehearing  Questionnaire on  April  9, \n2025. A hearing was set for the date of September 24, 2025, but was cancelled prior to \nthe hearing date by the Claimant. The Claimant was previously represented by Mark Alan \nPeoples,  who  was  allowed  to  withdraw  by  an  Order  from  the  Full  Commission,  dated \nOctober 31, 2025. The Claimant has made no request for a hearing and has taken no \nsteps after requesting that her hearing be cancelled to pursue and prosecute her claim, \nor to request a hearing. \n After proper and reasonable notice, a hearing was held on February 25, 2026, and \nthe Claimant failed to appear. The Respondents were represented by Mike Ryburn, who \nrequested  that  the  matter  be  dismissed  pursuant  to 11  C.A.R.  110(d)  of  the  Arkansas \nWorkers’ Compensation Commission and the  provisions  of Arkansas Code Ann.  11-9-\n702.   \n Arkansas  Code  Annotated  11-9-702  provides  that  if  within  six  months  after the \nfiling of a claim for compensation, if no bona fide request for a hearing has been made \nwith respect to the claim, the claim may upon motion and after a hearing, be dismissed \nwithout  prejudice.  Additionally, 11  C.A.R.  110  (d)  provides  that  upon  a  meritorious \napplication from either party in an action pending before the Commission, requesting that \nthe claim be dismissed for want of prosecution, the Commission may, upon reasonable \nnotice to all the parties, enter an order dismissing the claim for want of prosecution. Here, \nit is found that reasonable notice to all the parties was provided and that the Claimant has \nnot made a bona fide request for a hearing within six months of the filing of her claim. \n \n \n\nRITTER – H405925 \n3 \n \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion  to  Dismiss without  prejudice pursuant  to 11  C.A.R.  110(d) of  the  Arkansas \nWorkers’ Compensation Commission and Arkansas Code Ann. 11-9-702, based upon the \nClaimant failing to prosecute her claim within the last six months and after a meritorious \napplication to the Commission by the Respondent requesting that the claim be dismissed \nafter reasonable notice to all parties. \nIT IS SO ORDERED. \n                \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":3910,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H405925 ASHLEY RITTER, EMPLOYEE CLAIMANT OZARK ADULT PERSONAL CARE, LLC, EMPLOYER RESPONDENT LIBERTY MUTUAL, CARRIER/TPA RESPONDENT OPINION AND ORDER FILED MARCH 3, 2026 A Hearing before Administrative Law Judge James D. Kennedy in Batesville, Arkansas, was...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:30:30.578Z"},{"id":"alj-H503667-2026-02-27","awccNumber":"H503667","decisionDate":"2026-02-27","decisionYear":2026,"opinionType":"alj","claimantName":"Rodney Carver","employerName":"Kohler Company","title":"CARVER VS. KOHLER COMPANY AWCC# H503667 February 27, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CARVER_RODNEY_H503667_20260227.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CARVER_RODNEY_H503667_20260227.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H503667 \n \nRODNEY CARVER, EMPLOYEE CLAIMANT \n \nvs \n \nKOHLER COMPANY, SELF-INSURED EMPLOYER RESPONDENT \n \nCORVEL ENTERPRISE CLAIMS, INC., TPA RESPONDENT \n  \n \nOPINION FILED 27 FEBRUARY 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 4 December 2025 in Little Rock, Arkansas. \n \nThe claimant appeared pro se. \n \nMr. Jarrod Parrish, Worley, Wood & Parrish, PA, appeared on behalf of the respondents. \n \nI. STATEMENT OF THE CASE \n \n A Prehearing Order was filed on 18 September 2025 and admitted to the record as \nCommission’s Exhibit No 1. The parties agreed to the following Stipulations at the hearing: \nSTIPULATIONS \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n 2. Employee/self-insured employer/TPA relationship existed at all relevant  \n  times, including on or about 15 July 2024. \n \n 3. At the relevant time, the claimant was earning an average weekly wage of  \n  $939.12, which would entitle him to weekly benefits of $876    \n  for temporary total disability (TTD) and $657 for permanent partial disability \n  (PPD). \n \n 4. The respondents have controverted this claim in its entirety. \n \nISSUES TO BE LITIGATED \n \n 1. Whether the claimant sustained compensable back injury by specific   \n  incident on or about 15 July 2024.  \n \n\nR. CARVER- H503667 \n2 \n \n 2. Whether the claimant is entitled to TTD benefits from 14 February 2025 to a  \n  date yet to be determined. \n \n All other issues are reserved. \n \nCONTENTIONS \n \n The parties’ Contentions are set out in their respective Prehearing Questionnaire \nresponses: \nClaimant \n \nMy lead supervisor moved me to a different department where I was \ngiven a task of pulling a pallet around the warehouse. The pallet jack \nneeds to be pulled and different parts need to be uploaded by hand. \nWhile doing this I hurt my back. \n \nRespondent \n \nRespondents maintain that claimant did not suffer a compensable \ninjury on or about July 15, 2024, or at any other time while working for \nRespondents. In the event compensability is established, Claimant has \nnot established entitlement to additional medical or temporary total \ndisability benefits. Respondents assert a lack of notice until April 3, \n2025. Therefore, in the event compensability can be established, \nRespondents’ liability for benefits cannot start before that date. To the \nextent Claimant has drawn short term or long-term disability benefits, \nand to the extent Respondents have paid all or some of the premium for \nthat coverage, Respondents assert a credit. \n \nThe Respondents reserve the right to raise additional contentions, or to \nmodify those stated herein, pending the completion of discovery.  \n \nII. FINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witnesses, observing their demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The Stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant has failed to prove by a preponderance of the evidence that he  \n  suffered a compensable injury to his back by specific incident. \n \n\nR. CARVER- H503667 \n3 \n \n4. Because the claimant has failed to prove a compensable injury, the remaining \n  issues are moot and will not be addressed in this Opinion. \n \nIII. ADJUDICATION \nThe stipulated facts as outlined above are reasonable and accepted. It is settled that \nthe Commission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \n The claimant testified on his own behalf at the hearing. The respondents called Mr. \nPhillip Cantrell, Mr. Al “Dino” Morris, and Ms. Lekeisha Adams as witnesses. The record \nconsists of the hearing transcript and the following exhibits: Commission’s Exhibit No 1 (the \n18 September 2025 Prehearing Order); Respondents’ Exhibit No 1 (one index page and 72 \npages of medical records); and Respondents’ Exhibit No 2 (one index page and 16 pages of \nnon-medical records). \n Claimant’s Testimony \n The claimant is a 44-year-old man who began working for the respondent-employer \nKohler on 31 October 2023. He worked primarily in the assembly plant putting together \n\nR. CARVER- H503667 \n4 \n \nfaucet components. He testified that he was working as extra help for overtime on 15 July \n2024 when he hurt his back while moving product with a pallet jack. He made no attempt \nto report any injury. Unaware of any alleged workplace injury, his supervisor sent him \nhome without incident once the extra work was completed.  \n According to his testimony, the claimant continued going to work per usual until \ngoing to see his primary care physician (PCP) Dr. Kimberly Golden at the end of August \n2024 for his “unbearable” back pain. [TR at 19.] Dr. Golden prescribed some medication and \ncompleted some paperwork for a light-duty accommodation at work. He then continued \nworking until Dr. Golden took him off work in February of 2025. He has not since returned \nto work and eventually received notice of his termination on 19 July 2025. \n At his deposition before the hearing, the claimant testified that he had no history of \nback problems before his alleged workplace injury. On cross-examination, however, he \nacknowledged that his medical records showed him seeking treatment for back pain as \nrecently as April, May, and December of 2023. He also acknowledged other inconsistencies \nregarding his supposed date of injury and cause(s) of injury in his disability application \npaperwork. \n Respondents’ Witness Mr. Phillip Cantrell \n Mr. Cantrell testified that he was a supervisor at Kohler around the time that the \nclaimant alleges that he was injured on the job. He denied any specific recollection of 15 \nJuly 2024 but stated that the claimant never reported a workplace injury to him. \n Respondents’ Witness Mr. Al “Dino” Morris \n Mr. Morris testified that he, too, was a supervisor at Kohler around the time that \nthe claimant alleges that he was injured on the job. He, too, denied any specific recollection \nof 15 July 2024 but stated that the claimant never reported a workplace injury to him. \n Respondents’ Witness Ms. Lekeisha Adams \n\nR. CARVER- H503667 \n5 \n \n Ms. Adams testified that she is the Environmental Health and Safety Program \nManager at Kohler. She stated that new employee orientation, which the claimant \nparticipated in, includes information about the process for reporting workplace injuries. \nAccording to her testimony, she became aware of the claimant’s alleged workplace injury in \nMarch of 2025 after he applied for short-term disability indicating the same. She began an \ninvestigation of his claim. When she first asked the claimant about his alleged incident \nand/or injury, he was unable to recall when he might have hurt himself. He later offered an \nexplanation for injuring himself in another location outside of the building where he was \nworking on the day of his alleged injury. She also testified that the claimant was not \nactually at work on the day he alleges his injury to have occurred. \n Medical Records \n The claimant did not offer any medical evidence into the record to support his claim.  \nDISCUSSION \nThe respondents have controverted this claim in its entirety. The initial matter in \nthis claim is whether the claimant sustained a compensable injury by specific on 15 July \n2024. To prove a compensable injury by specific incident, he must establish four (4) factors \nby a preponderance of the evidence: (1) the injuries arose out of and in the course of his \nemployment; (2) the injuries caused internal or external harm to the body that required \nmedical services or resulted in disability or death; (3) the injuries are established by \nmedical evidence supported by objective findings, which are those findings which cannot \ncome under the voluntary control of the patient; and (4) the injuries were caused by a \nspecific incident identifiable by time and place of occurrence. Mikel v. Engineered Specialty \nPlastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). \"Objective findings\" are those findings \nwhich cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-\n102(16)(A)(i). The requirement that a compensable injury must be established by medical \n\nR. CARVER- H503667 \n6 \n \nevidence supported by objective findings applies only to the existence and extent of the \ninjury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). \nThe employee has the burden of proving by a preponderance of the evidence that he \nsustained a compensable injury. Ark. Code Ann. § 11-9-102(4)(E)(i). Preponderance of the \nevidence means the evidence having greater weight or convincing force. Metropolitan Nat'l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). If a claimant fails to \nestablish by a preponderance of the evidence any of the requirements for establishing a \ncompensable injury, compensation must be denied. Mikel, supra. \nThe claimant has failed to prove by a preponderance of the evidence that he \nsustained a compensable injury by specific incident on 15 July 2024. First, he was not a \ncredible witness. When confronted with records that contradicted prior sworn testimony, \nthe claimant was forced to acknowledge that he was previously untruthful about not having \na history of complaints of back pain. Similarly, he offered little to account for his supposed \ndate of injury being inconsistent across different forms. Lastly, he impliedly conceded to the \nflimsiness of his version of events when he made no attempt to question Ms. Adams around \nher testimony that he was not even working on the day of his alleged injury.\n1\n Having \n \n1\n I am mindful that an employee’s possible confusion around the specific moment an injury \noccurs is not necessarily fatal to his claim, so long as the time and place of injury are \nidentifiable. In Pulaski County Special Sch. Dist. v. Laster, 2015 Ark. App. 206; 465 S.W.3d \n421; 2015 Ark. App. LEXIS 262, our Court of Appeals explained:  \n \n\"An injury is 'accidental' only if it is caused by a specific incident and is identifiable \nby time and place of occurrence[.]\" Ark. Code Ann. § 11-9-102(4)(A)(i). In Edens v. \nSuperior Marble & Glass, our Supreme Court held that \"identifiable by time and \nplace\" meant subject to identification and did not require the claimant to specify \nthe exact time of the occurrence. 346 Ark. 487, 492, 58 S.W.3d 369, 373 (2001). A \nclaimant's inability to specify the exact date and the precise time of the accidental \ninjury is a credibility issue that the Commission may weigh. Pafford Med. Billing \nServs., Inc. v. Smith, 2011 Ark. App. 180, 381 S.W.3d 921. Still, [Claimant] must \nshow a causal relationship between his employment and the injury. Wal-Mart \nStores, Inc. v. Westbrook, 77 Ark. App. 167, 72 S.W.3d 889 (2002).  \n\nR. CARVER- H503667 \n7 \n \nobserved his testimony and reviewed the record evidence, I do not find the claimant to be \ncredible. See Van Wagner, supra. \nThe claimant’s credibility troubles aside, he also failed to offer any medical evidence \ninto the record to support his claim. And he admittedly made no effort to make a report of \nan injury around the time he claims to have hurt himself. The respondents, conversely, \noffered medical records to show that the claimant had an established history of seeking \nevaluation and treatment for back pain. On 24 April 2024, for example, his PCP ordered an \nMRI because the claimant reportedly presented to an emergency department after his back \n“went out” while he was folding clothes. [Resp. Ex. No 1 at 10.] He eventually sought his \nPCP’s assistance in making a claim for disability, and she indicated that he injured himself \non 9 February 2025 (versus 15 July 2024, as he claims here) while “reaching and turning, \nstanding long periods, pulling” while “at work.” [Resp. Ex. No 1 at 71.]  \nThe record simply lacks credible testimony and is devoid of objective medical \nfindings in support of this claim. The claimant has, therefore, failed to prove by a \npreponderance of the evidence that he sustained a compensable injury by specific incident. \n Because the claimant has failed to prove a compensable injury, the other issues in \nthis claim are moot and will not be addressed in this Opinion. \n \n \n[This space is intentionally left blank.] \n \n \n \n \nBut here, after Ms. Adams testified that the claimant was not even working on the day of \nhis alleged injury, he made no effort to explain in the alternative how and when he may \nhave injured himself while at work. \n\nR. CARVER- H503667 \n8 \n \nIV.  CONCLUSION  \n Consistent with the Findings of Fact and Conclusions of Law, this claim for initial \nbenefits is DENIED and DISMISSED. \nSO ORDERED. \n      ________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":13924,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H503667 RODNEY CARVER, EMPLOYEE CLAIMANT vs KOHLER COMPANY, SELF-INSURED EMPLOYER RESPONDENT CORVEL ENTERPRISE CLAIMS, INC., TPA RESPONDENT OPINION FILED 27 FEBRUARY 2026 Heard before Arkansas Workers’ Compensation Commission Administrative Law Judge JayO. ...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:32:21.697Z"},{"id":"alj-H504634-2026-02-27","awccNumber":"H504634","decisionDate":"2026-02-27","decisionYear":2026,"opinionType":"alj","claimantName":"Elijah Washington","employerName":"Home Depot USA, Inc","title":"WASHINGTON VS. HOME DEPOT USA, INC. AWCC# H504634 February 27, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Washington_Elijah_H504634_20260227.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Washington_Elijah_H504634_20260227.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC NO. H504634 \n \n \nELIJAH WASHINGTON, EMPLOYEE CLAIMANT \n \nHOME DEPOT USA, INC., \n EMPLOYER RESPONDENT \n \nSAFETY NAT’L CASUALTY CORP., \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 27, 2026 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on January 2, 2026, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr. Michael  E.  Ryburn,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On January  2,  2026,  the  above-captioned  claim  was  heard  in Jonesboro, \nArkansas.  A prehearing conference took place on November 3, 2025.  The Prehearing \nOrder entered that same day pursuant to the conference was admitted without objection \nas  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n The parties discussed the stipulations set forth in Commission Exhibit 1.  With an \namendment of the fourth reached at the hearing, they read: \n1. The  Arkansas Workers’  Compensation  Commission  (the  “Commission”) \nhas jurisdiction over this claim. \n\nWASHINGTON – H504634 \n2 \n \n2. The  employee/employer/carrier relationship existed  among  the  parties  on \nJuly 14, 2025, the alleged date of injury. \n3. Respondents have controverted this claim in its entirety. \n4. Claimant’s  average  weekly  wage  was  $273.00,  entitling  him  to \ncompensation rates of $182.00/$137.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether  Claimant sustained  compensable  injuries  to  his  back  and  right \nshoulder by specific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of his alleged compensable injuries. \n3. Whether Claimant is entitled to temporary total disability benefits. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are as follows: \n Claimant: \n1. Claimant contends that he sustained compensable injuries to his back and \nright shoulder when he was struck by falling items at work. \nRespondents: \n1. Respondents contend that Claimant does not have a compensable injury.  \nHe has no objective findings of such an injury. \n\nWASHINGTON – H504634 \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of Claimant and  to  observe his demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he \nsustained a compensable injury to his back by specific incident. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he \nsustained a compensable injury to his right shoulder by specific incident. \n5. Because  of  Findings/Conclusions  Nos.  3  and  4, supra, the  remaining \nissues—whether Claimant is entitled to reasonable and necessary medical \ntreatment  of  his alleged  compensable  injuries,  and  whether he  is  entitled \nto temporary total disability benefits—are moot and will not be addressed. \nCASE IN CHIEF \n Summary of Evidence \n Claimant was the sole witness. \n In  addition  to  the Prehearing Order  discussed  above,  the  exhibit  admitted  into \nevidence  in  this  case was Claimant’s Exhibit 1, a compilation of his medical  records, \nconsisting of 14 numbered pages. \n\nWASHINGTON – H504634 \n4 \n \nADJUDICATION \nA. Compensability \n Introduction.  Claimant has alleged that as a result of an incident at work on July \n14,   2025, he sustained   compensable   injuries to   his back and   right   shoulder.  \nRespondents deny that he suffered a compensable injury. \n Standards.   Arkansas Code  Annotated  § 11-9-102(4)(A)(i)  (Repl.  2012),  which  I \nfind applies here, defines “compensable injury”: \n(i)  An  accidental  injury  causing  internal  or  external  physical  harm  to  the \nbody  .  .  .  arising  out  of  and  in  the  course  of  employment  and  which \nrequires  medical  services  or  results  in  disability  or  death.    An  injury  is \n“accidental” only if it is caused by a specific incident and is identifiable by \ntime and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe  element “arising  out  of  .  .  .  [the]  employment” relates  to  the  causal  connection \nbetween the claimant’s injury and his or her employment.  City  of El  Dorado  v.  Sartor, \n21 Ark. App. 143, 729 S.W.2d 430 (1987). \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n\nWASHINGTON – H504634 \n5 \n \n Discussion.   Claimant,  who  is  30  years  old  and  has  a  high  school  diploma, \ntestified that  he  was employed  by  Respondent  Home  Depot  as a  freight  and  receiving \nassociate.    His  duties  in  this  position  included  unloading  trailers  of  newly-arrived \nmerchandise, and  then  stock  the  shelves  with  it.  The  items  were unloaded  by  placing \nthem on a conveyor belt.  He related that the following took place at approximately 8:00 \nto 8:30 p.m. on July 14, 2025: \nAs  far  as  I  know,  that  I  was  just  working  as  normal.  And  I  had  my  back \nturned.  And the items just kind of got pushed down off the conveyor.  The \nitems got pushed down off the conveyor when the employees was pushing \nthem down, and it just hit my back. \n \nHis testimony was that more than one item struck his back and shoulder.  While he did \nnot see any of them because his back was turned, he believed that one item was a box \nthat weighed approximately 50 pounds.  Another was a piece of plumbing.  At the time \nhis  happened,  he  was  kneeling  on  the  floor.    The  conveyor  belt  off  of  which  the items \npurportedly fell  was  approximately  table height.    Claimant described feeling pain  in  his \nback and right shoulder after being struck. \n Right  after  this occurrence,  according  to  Claimant, he  related the  incident  to his \nmanager  and  was instructed  to  write  out  a  statement  of  what  had  happened.  After \ncompleting the statement, at around 8:40 to 9:00 p.m., he went home.  He testified that \nin the one-week period following the alleged accident, he sought treatment three to four \ntimes.  These included visits to the emergency room of St. Bernard Medical Center and \nto ARCare, a drop-in clinic. \n Claimant’s  Exhibit  1  consists  predominantly  of  medical  bills—not   medical \nrecords.  For instance, while the bills in evidence document that he underwent CT scans \nof his chest plus his cervical, thoracic and lumbar spine on July 15, 2025, as well as his \n\nWASHINGTON – H504634 \n6 \n \nabdomen  and  pelvis  on  July  20,  2025,  the  results  of  those  tests  are  not  in  evidence.  \nClaimant underwent MRIs of his right upper extremity and his thoracic spine on October \n28, 2025; but those results were likewise not offered into evidence.  In fact, the records \nin evidence are devoid of objective findings of either a back or a right shoulder injury. \n In making the above statement, I am aware that page 10 of Claimant’s Exhibit 1 \ncontains a prescription for Zanaflex “as needed (muscle spasm).”  The prescription was \nissued  by  Michael  Brandon  Belt,  M.D., of NEA Baptist Hospital in  Jonesboro on \nSeptember 24,  2025.  I  am also aware  that in Estridge  v.  Waste Mgmt.,  343  Ark.  276, \n33  S.W.3d  167 (2000)  the prescription  of  Flexeril “as  needed  for  muscle  spasm” was \nheld  to  be tantamount  to  objective  finding  of  muscle  spasm.   See  also Nucor  Yamato \nSteel  Co.  v.  Shelton,  2025  Ark.  App.  249,  713  S.W.3d  494; Melius v.  Chapel Ridge \nNursing Ctr., 2021 Ark. App. 61, 618 S.W.3d 410.  But here, nothing in the prescription \nindicates where this muscle spasm was purportedly indicated.  Furthermore, the report \nfrom the September 24, 2025, doctor visit—if such exists—is not in evidence.  Estridge \nand its progeny are thus distinguishable.  Only through speculation or conjecture could I \nuse the above prescription to find that objective findings of Claimant’s alleged back \nand/or right shoulder injury have been established.  But I am not permitted to engage in \nspeculation and conjecture.  See Dena Construction Co. v. Herndon, 264 Ark. 791, 796, \n575 S.W.2d 155 (1979). \n I light of the foregoing, I find that Claimant has not proven by a preponderance of \nthe evidence that he sustained either a compensable back injury or a compensable right \nshoulder injury.  His claim must fail at the outset. \n\nWASHINGTON – H504634 \n7 \n \nB. Remaining Issues \n Because Claimant  has  not  proven  that  he  sustained  a  compensable  injury, the \nremaining   issues—whether he is   entitled   to reasonable   and   necessary   medical \ntreatment  of his  alleged  compensable  injuries,  and  whether he  is entitled  to temporary \ntotal disability benefits—are moot and will not be addressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":10347,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC NO. H504634 ELIJAH WASHINGTON, EMPLOYEE CLAIMANT HOME DEPOT USA, INC., EMPLOYER RESPONDENT SAFETY NAT’L CASUALTY CORP., CARRIER RESPONDENT OPINION FILED FEBRUARY 27, 2026 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 2, 2026, in Jone...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["back","shoulder","cervical","thoracic","lumbar"],"fetchedAt":"2026-05-19T22:32:23.896Z"},{"id":"full_commission-H307394-2026-02-25","awccNumber":"H307394","decisionDate":"2026-02-25","decisionYear":2026,"opinionType":"full_commission","claimantName":"Patrice Gilmer","employerName":"Wal-Mart Associates, Inc","title":"GILMER VS. WAL-MART ASSOCIATES, INC. AWCC# H307394 February 25, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Gilmer_Patrice_H307394_20260225.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Gilmer_Patrice_H307394_20260225.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H307394 \n \nPATRICE GILMER, EMPLOYEE    CLAIMANT \n \nWAL-MART ASSOCIATES, INC.,  \nSELF-ISURED, EMPLOYER                                                  RESPONDENT \n \nWAL-MART CLAIMS SERVICES, TPA                                  RESPONDENT \n \nOPINION FILED FEBRUARY  25, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE RICK BEHRING JR., \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed September 30, 2025. In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The Commission has jurisdiction over these claims. \n  \n2. The stipulations as set forth above are reasonable and \nare hereby accepted. \n \n3. The claimant failed to prove by a preponderance of the \nevidence that she suffered a compensable injury by \nspecific incident to her right lower extremity.  \n\nGilmer-H307394    2  \n \n \n4. The claimant failed to prove by a preponderance of the \nevidence that she suffered a compensable injury by \nspecific incident to her back.  \n \n5. Because the claimant failed to prove a compensable \ninjury, the remaining issues are moot and will not be \naddressed in this Opinion. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence the findings of fact made by the Administrative Law Judge \nare correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the September 30, 2025 decision of \nthe Administrative Law Judge, including all findings and conclusions \ntherein, as the decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents.","textLength":2418,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H307394 PATRICE GILMER, EMPLOYEE CLAIMANT WAL-MART ASSOCIATES, INC., SELF-ISURED, EMPLOYER RESPONDENT WAL-MART CLAIMS SERVICES, TPA RESPONDENT OPINION FILED FEBRUARY 25, 2026 Upon review before the FULL COMMISSION in Little Ro...","outcome":"affirmed","outcomeKeywords":["affirmed:3","denied:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:43.878Z"},{"id":"alj-H502635-2026-02-24","awccNumber":"H502635","decisionDate":"2026-02-24","decisionYear":2026,"opinionType":"alj","claimantName":"Alan Pogue","employerName":"Werner Enterprises, Inc","title":"POGUE VS. WERNER ENTERPRISES, INC. AWCC# H502635 February 24, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/POGUE_ALAN_H502635_20260224.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"POGUE_ALAN_H502635_20260224.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H502635 \n \nALAN R. POGUE (DECEASED), \nEMPLOYEE         CLAIMANT \n \nWERNER ENTERPRISES, INC., \nEMPLOYER, SELF INSURED       RESPONDENT \n \nACE AMERICAN INSURANCE CO., \nINSURANCE CARRIER       RESPONDENT \n \nHELMSMAN MANAGEMENT SERVICES \nLLC, THIRD PARTY ADMINISTRATOR     RESPONDENT \n \n \nOPINION AND ORDER FILED FEBRUARY 24, 2026 \n \nA Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas, \nwas held on February 10, 2026. \n \nClaimant was pro-se and failed to appear. \n \nRespondents were represented by Rick Behring, Jr., of Little Rock, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on the 10\nth\n day of February 2026, in \nLittle  Rock,  Arkansas, on Respondent’s  Motion  to  Dismiss  for  failure  to  prosecute \npursuant  to  Arkansas  Code  Ann.  11-9-702  and 11  C.A.R.  25-110(d), which  was \npreviously named Rule 099.13 of the Arkansas Workers’ Compensation Commission.  \nThe Claimant was pro se and failed to appear. The Respondents were represented by \nRick Behring Jr. of Little Rock, Arkansas. The Claimant’s widow had filed an AR – C Form \non or about April 29, 2025, where she contended that her husband while “loading his semi \nat the Dollar General Distribution Center” was found on the ground struggling and was \nthen taken to the hospital where he died. The C Form requested medical expenses and \n\nAlan R. Pogue – H502635 \n2 \n \nattorney  fees.  The  Respondents  filed  an  AR- 2  Form  which  provided  that  the  date  of \nClaimant’s death was February 18, 2025, that the claim was denied due to a jurisdictional \ndispute and also denied in its entirety as the deceased suffered from a personal health \ncondition that resulted in his death. The Claimant’s probate attorney, Conner Kelsey of \nLion Legal Services, notified the Commission by a letter dated November 25, 2025, that \nthey were representing the Claimant in related probate proceedings, requested copies of \ndocuments  in  regard  to  the  claim  before  the  Commission,  and affirmatively stated  that \nMs. Pogue was objecting to the dismissal of the workers’ compensation claim. Later, \nattorney Conner  Kelsey by  email stated  and  affirmed  that  his  firm  does  not  handle \nworkers’ compensation claims, that he had forwarded all the information he had received \nto Ms. Pogue and instructed her to obtain separate legal counsel in regard to the workers’ \ncompensation claim.   \n A Motion to Dismiss was filed on November 12, 2025, and the Claimant’s widow \nfailed  to  file  a  response.  The  Respondent’s  had  previously  propounded  Interrogatories \nand  Requests  for  Production  of  Documents  which  had  not  been  responded  to. The \nClaimant’s widow has taken no steps since the original filing to pursue her claim and has \nmade no filing for discovery, no filing of responses to the propounded interrogatories, and \nfiling in response to the Motion to Dismiss. The Claimant’s widow has not taken any action \nto prosecute her claim, and it has been more than six months since the Claimant’s widow \nhad filed her AR-C or requested a hearing. \n After proper and reasonable notice, a hearing was held on February 10, 2026, and \nthe Claimant’s  widow failed  to  appear.  The Respondents  were  represented  by Rick \nBehring, Jr., who requested that the matter be dismissed pursuant to 11 C.A.R. 110(d) of \n\nAlan R. Pogue – H502635 \n3 \n \nthe Arkansas Workers’ Compensation Commission and the provisions of Arkansas Code \nAnn. 11-9-702.   \nORDER \n \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion  to  Dismiss without  prejudice pursuant  to 11  C.A.R.  110(d) of  the  Arkansas \nWorkers’ Compensation Commission and  A.C.A.  11-9-702, based  upon  the  Claimant \nfailing to prosecute her claim within the last six months and after a meritorious application \nto  the  Commission  by  the  Respondents requesting  that  the  claim  be  dismissed, after \nreasonable notice to all parties.    \nIT IS SO ORDERED. \n                \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":4300,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H502635 ALAN R. POGUE (DECEASED), EMPLOYEE CLAIMANT WERNER ENTERPRISES, INC., EMPLOYER, SELF INSURED RESPONDENT ACE AMERICAN INSURANCE CO., INSURANCE CARRIER RESPONDENT HELMSMAN MANAGEMENT SERVICES LLC, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION AND ORDER...","outcome":"dismissed","outcomeKeywords":["affirmed:1","dismissed:5","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:32:17.502Z"},{"id":"alj-H404974-2026-02-24","awccNumber":"H404974","decisionDate":"2026-02-24","decisionYear":2026,"opinionType":"alj","claimantName":"Samantha Stewart","employerName":null,"title":"STEWART VS. ADP TOTAL SOURCE GROUP, INC.AWCC# H404974February 24, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/STEWART_SAMANTHA_H404974_20260224.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STEWART_SAMANTHA_H404974_20260224.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404974 \n \nSAMANTHA N. STEWART, EMPLOYEE                                          CLAIMANT \n \nADP TOTAL SOURCE GROUP, INC. D/B/A \nRIVER LODGE ASSISTED LIVING, LLC, \nEMPLOYER, SELF INSURED      RESPONDENT \n \nHELMSMAN MANAGEMENT SERVICES \nLLC, THIRD PARTY ADMINISTRATOR                                            RESPONDENT \n \n \nOPINION AND ORDER FILED FEBRUARY 24, 2026 \n \nA Hearing before Administrative Law Judge James D. Kennedy in Mountain \nHome, Arkansas, was held on February 18, 2026. \nClaimant was pro se and failed to appear. \nRespondents were represented by David C. Jones, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 18\nth\n day of February 2026, in \nMountain Home, Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute \npursuant  to  Arkansas  Code  Ann.  11-9-702  and 11  C.A.R. 25-110(d), which  was \npreviously named Rule 099.13 of the Arkansas Workers’ Compensation Commission. \nThe Claimant had been previously represented by Frederick “Rick” Spencer, of Mountain \nHome, Arkansas, who had filed a Motion to Withdraw and who stated by email that he \nhad been unable to contact the Claimant at the address she had provided. The attorney \nfor the Claimant was allowed to withdraw at the time of the hearing. The Respondents \nwere represented by David C. Jones of Little Rock, Arkansas. The Claimant contended \nthat she had injured her “lead foot” on March 5, 2024, where she “possibly” tore a tendon \nwhile pushing a medical cart. The claim was accepted as a compensable medical only \n\nSAMANTHA N. STEWART – H404974 \n2 \n \nclaim. An AR-C Form was filed on March 5, 2024. The First Report of Injury provided that \nthe Claimant did not notify the Respondents of her injury until May 25, 2025. Discovery \nwas  propounded  to  the  Claimant, on  or  about  September  17,  2024, and the  Claimant \nfailed to respond. The Claimant has made no request for a hearing since the filing of the \nclaim. A medical report dated December 3, 2024, provided that the Claimant could return \nto work, full duty.  \nA Motion to Dismiss was filed on December 11, 2025, contending that no request \nfor  a  hearing  had  been  made within  six  months  of  the  filing  of  the  AR-C,  that  all \nappropriate  medical  benefits  had  been  paid, and  that  the  matter  should  be  dismissed \npursuant  to  A.C.A.  11-9-702 and 11  C.A.R. 25-110(d), which  provides  that upon a \nmeritorious  application  to  the  Commission by  either  party requesting  that  the  claim  be \ndismissed  for  want  of  prosecution,  the  Commission may upon  reasonable  notice  to  all \nparties, enter an Order dismissing the claim for want of prosecution.  The Claimant failed \nto file a response to the Motion to Dismiss.  \n After proper and reasonable notice, a hearing was held on February 18, 2026, and \nthe Claimant failed  to appear.  The Respondents  were  represented  by David  C.  Jones, \nwho requested that the matter be dismissed pursuant to 11 C.A.R. 110(d) of the Arkansas \nWorkers’ Compensation Commission and the provisions of A.C.A. 11-9-702, and that the \nClaimant had taken no steps to pursue her claim.     \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion  to  Dismiss without  prejudice pursuant  to 11  C.A.R.  110(d) of  the  Arkansas \n\nSAMANTHA N. STEWART – H404974 \n3 \n \nWorkers’ Compensation Commission and  A.C.A.  11-9-702, based  upon  the  Claimant \nfailing to prosecute her claim within the last six months and after a meritorious application \nto  the  Commission  by  the  Respondents requesting  that  the  claim  be  dismissed, after \nreasonable notice to all parties.    \nIT IS SO ORDERED. \n                \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":4011,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404974 SAMANTHA N. STEWART, EMPLOYEE CLAIMANT ADP TOTAL SOURCE GROUP, INC. D/B/A RIVER LODGE ASSISTED LIVING, LLC, EMPLOYER, SELF INSURED RESPONDENT HELMSMAN MANAGEMENT SERVICES LLC, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION AND ORDER FILED FEBRUARY 24,...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:32:19.623Z"},{"id":"alj-H500305-2026-02-20","awccNumber":"H500305","decisionDate":"2026-02-20","decisionYear":2026,"opinionType":"alj","claimantName":"Wendy Carbantes","employerName":"Bell Planting Co","title":"CARBANTES VS. BELL PLANTING CO. AWCC# H500305 February 20, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Carbantes_Wendy_H500305_20260220.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Carbantes_Wendy_H500305_20260220.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H500305 \n \n \nWENDY JAMILETH CARBANTES, \n ALLEGED EMPLOYEE CLAIMANT \n \nBELL PLANTING CO., \n ALLEGED EMPLOYER RESPONDENT NO. 1 \n \nSTONETRUST COMMERCIAL INS. CO., \n CARRIER RESPONDENT NO. 1 \n \nRITO RENARDO LUCIANO \n UNINSURED ALLEGED EMPLOYER RESPONDENT NO. 2 \n \n \nOPINION FILED FEBRUARY 20, 2026 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on December  5,  2025, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented by Mr. Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 1 represented by Mr. Michael E. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \nRespondent No. 2, pro se, failed to appear. \n \n \nSTATEMENT OF THE CASE \n \n On December  5,  2025,  the  above-captioned  claim  was heard  in Jonesboro, \nArkansas.  A prehearing conference took place on September 8, 2025.  The Prehearing \nOrder  entered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection \nas  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \n\nCARBANTES – H500305 \n \n2 \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  After the withdrawal of Stipulation No. 3, they read as follows: \n1. The  Arkansas Workers’  Compensation  Commission  (the  “Commission”) \nhas preliminary jurisdiction over this claim. \n2. This claim has been controverted in its entirety. \nIssues \n The  parties  discussed  the  issues  set  forth  in  Commission  Exhibit  1.   The \nfollowing were litigated: \n1. Whether  Claimant’s  work  for  Respondent  Bell  Planting  Company \nconstituted “employment” under Ark. Code Ann. § 11-9-102(11)(A)(iii). \n2. Whether   Claimant was   an   employee   of   Respondent   Bell   Planting \nCompany on January 9, 2025, and at all other relevant times. \n3. Whether   Claimant   was   an   employee   of   Respondent Rito   Renardo \nLuciano;    and    whether    Respondent Luciano was    an    uninsured \nsubcontractor of Respondent Bell Planting Company on January 9, 2025, \nand at all other relevant times. \n4. Whether  Claimant  sustained  a  compensable  injury  to  her  left  lower \nextremity by specific incident. \n5. Whether Claimant is entitled to reasonable and necessary treatment of her \nalleged injury. \n\nCARBANTES – H500305 \n \n3 \n6. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from \nJanuary 10, 2025, to a date yet to be determined. \n7. Whether Claimant is entitled to a controverted attorney’s fee. \nAll other issues have been reserved. \nContentions \n The respective contentions of the parties, following amendments at the hearing, \nread as follows: \n Claimant: \n1. Claimant  was  performing  agricultural  farm  labor  for Respondent Bell \nPlanting Company  at  the  time  of  her  injury  on  or about  January  9,  2025.  \nTherefore, she was  not  performing “employment” under  the Arkansas \nWorkers’  Compensation  Act; and   the Exclusive   Remedy   Provision \nthereunder   is   inapplicable.      The Arkansas   Workers’ Compensation \nCommission does not have jurisdiction over this matter. \n2. In  the  event that the Commission  finds  that Claimant  is  subject  to  the \nArkansas  Workers’  Compensation Act, Claimant contends   that   she \nsustained  an  injury  to  her  left  leg  on  about  January  9,  2025.  She  was \nremoving  beans  from a storage  silo and her  foot  became  caught  in  an \nauger  in  a  grain  bin,  resulting  in  the  amputation  of  her  left  leg  below  the \nknee.  Respondents have controverted the claim in its entirety. \n3. Claimant’s  average  weekly  wage  will  be  determined  by  her  contract  of \nhire; and she will offer testimony bearing on that.  She contends that she \n\nCARBANTES – H500305 \n \n4 \nis entitled to temporary total disability benefits from January 10, 2025, to a \ndate  yet  to  be  determined.  Upon  information  and  belief, she is  at \nmaximum medical improvement; but the exact date is not currently known.  \nShe is entitled to 131 weeks of permanent partial disability benefits for her \nbelow-the-knee  amputation, in accordance  with  Ark. Code Ann.  § 11-9-\n521.  Based upon Claimant’s age, education, work experience, and other \nfactors,  she  is  permanently and totally  disabled.  She  is also entitled  to \nreasonable and necessary   medical   treatment,   along   with mileage \nreimbursement in connection  with  her  treatment.  Respondents No.  1 \ndirected  the  initial  medical  treatment that  Claimant  underwent;  and  they \nshould  be  responsible  for  the  ambulance,  air  flight,  and  hospital  stay in \nthat they directed her medical treatment, even if the Commission finds that \nthe claim is otherwise not compensable. \n4. Respondents  have  controverted the  claim  in  its  entirely.    Therefore, \nClaimant’s  counsel is entitled to  a  controverted attorney’s fee on  any \nindemnity benefits awarded herein. \n5. All other issues have been reserved. \nRespondents No. 1: \n1. Respondent  Bell  Planting  Company  is  a  farming  operation.    There  are \nperiods  of  time  before  the  H2A  workers  start  that  require  contract  labor.  \nThe owners of  the  farm  call Respondent Rito  Luciano,  who  then  sends a \nworker to the farm on a daily basis.  Luciano hires and pays the workers.  \n\nCARBANTES – H500305 \n \n5 \nHe  runs  a  temporary  worker  employment  service.    Claimant  is  not  an \nemployee  of  Respondent  Bell  Planting  Company.    Luciano  is  not  an \nuninsured  contractor  as  he  is  not  in  the  same  farming  business;  he  is  in \nthe temporary employment business. \n2. Respondents  No.  1  further  contend  that  Claimant  was  both  a  temporary \nworker  and  a  seasonal  worker.    For  that  reason,  the  valuation  of  her \naverage  weekly  wage  is  controlled  by Sierra  v.  Griffin  Gin, 374  Ark.  320, \n287  S.W.3d  556  (2008), where  the  Arkansas  Supreme  Court  determined \nthat seasonal workers have their gross wages divided by 52 weeks. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the \ntestimony  of  the hearing witnesses and  to observe their demeanor,  I  hereby  make  the \nfollowing  findings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The Stipulations set out above are reasonable and are hereby accepted. \n3. Claimant’s Proffered Exhibit 3 will be admitted into evidence and given \ndue weight. \n4. Claimant’s Proffered Exhibit 4 will not be admitted into evidence. \n5. Claimant’s Proffered Exhibit 5 will not be admitted into evidence. \n\nCARBANTES – H500305 \n \n6 \n6. Claimant’s Proffered Exhibit 6 will be admitted into evidence and given \ndue weight. \n7. Claimant’s Proffered Exhibit 7 will not be admitted into evidence. \n8. Claimant’s Proffered Exhibit 8 will be admitted into evidence and given \ndue weight. \n9. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  her \nalleged left lower extremity injury was compensable because regardless of \nwhether the alleged  employer  on  the  date  of  injury  was  Respondent  Bell \nPlanting Company and/or Respondent Rito Renardo Luciano, her work for \neither or both on that date constituted “[a]gricultural farm labor” under Ark. \nCode Ann. § 11-9-102(11)(A)(iii) (Supp. 2023). \n10. Because  of  Finding/Conclusion  No.  9, supra,  the  remaining  issues  are \nmoot and will not be addressed. \nPRELIMINARY RULINGS \nAdmission of Claimant’s Proffered Exhibit 3 \n At the hearing, Claimant sought the admission of this proffered exhibit, consisting \nof  a  summary  of  a  recorded  statement  purportedly  given  by  hearing  witness  Edward \nBecton  Bell  II (“Becton Bell”) to  Lori  Marionneaux,  who  is  an  insurance  adjustor with \nCentral  Adjustment  Company.   Respondents No  1 objected,  noting  that  the  subject  of \nthe  statement  was  present  in  the  courtroom  and  was  to  testify.    In  fact,  he  not  only \ntestified  at  the  hearing,  but  his  deposition  was  admitted  into  evidence.   See  supra.  \n\nCARBANTES – H500305 \n \n7 \nRespondents No.  1 also  pointed  out  that  the  summary  was  not  only  hearsay,  but  was \nmerely a summary of a statement. \n The analysis of this aspect of the issue falls within the purview of Ark. Code Ann. \n§ 11-9-705(a)(1) (Repl. 2012), which states: \nIn making an investigation or inquiry or conducting a hearing, the Workers’ \nCompensation  Commission  shall  not  be  bound  by  technical  or  statutory \nrules of evidence or by technical or statutory rules of procedure, except as \nprovided  by  this  chapter,  but  may  make  such  investigation  or  inquiry,  or \nconduct the hearing, in a manner that will best ascertain the rights of the \nparties. \n \nUnder this provision, the Commission is not bound by the Arkansas Rules of Evidence–\nincluding the  rules  governing hearsay and  the  exceptions  thereto.   See  Tracor/MBA  v. \nArtissue Flowers, 41 Ark. App. 186, 850 S.W.2d 30 (1993). \n After  consideration  of  this  matter,  I  find  that  admission  of  this  summary would \nhelp to “best ascertain the rights of the parties.”  While he was on the stand, Becton Bell \nwas shown a copy of the summary and was given an opportunity to explain his answers \nthereon.  This proffered exhibit will be admitted into evidence and given due weight. \nAdmission of Claimant’s Proffered Exhibit 4 \n This proffered exhibit is a summary of the interview of Phillip Bickerstaff that was \nconducted  by  Marionneaux.    Respondents No.  1 lodged an  objection  to  the  admission \nof the summary on similar grounds as they did to Becton Bell’s.  The key distinction in \nthis  case,  however,  is  that  while  Bickerstaff  was  sworn  in  as  a  witness  at  the  hearing, \nneither side called him to testify.  Thus, even the parties decided that his testimony was \nnot  worth  being  placed  into  the  evidentiary  record.    Admission  of  a  summary  of  an \nunsworn interview by him would, it is reasonable to conclude, certainly not help to “best \n\nCARBANTES – H500305 \n \n8 \nascertain the rights of the parties.”  Therefore, Claimant’s Proffered Exhibit 4 will not be \nadmitted into evidence. \nAdmission of Claimant’s Proffered Exhibit 5 \n This proffered exhibit is Marionneaux’s summary of the interview she conducted \nwith Maria  Ribera,  the  wife  of  Respondent Luciano.    Similar  objections  were  offered \nagainst its admission.  As reflected in Claimant’s Exhibit 9, Claimant attempted—without \nsuccess—to subpoena Ribera to testify at the hearing.  I have no means with which to \nassess  the  credibility  of  Ribera  or  determine  the  truthfulness  of  what  she  purportedly \nconveyed to Marionneaux.  Thus, Claimant’s Proffered Exhibit 5 will not be admitted into \nevidence. \nAdmission of Claimant’s Proffered Exhibit 6 \n This  proffered  exhibit  is  the  summary  by  Marionneaux  of  the  interview  she \nconducted  with  Wesley  Byers.    Due  to  his  unavailability on  the day  of  the  hearing,  the \nClaimant  and  Respondents  No.  1 arranged  for  him  to  give  an  evidentiary  deposition \nafter the hearing, which was admitted as Joint Exhibit 1.  For the same reason as that \nfor the admission of the Becton Bell interview summary, Claimant’s Proffered Exhibit 6 \nwill be admitted into evidence and given due weight. \nAdmission of Claimant’s Proffered Exhibit 7 \n This  proffered  exhibit  is  Marionneaux’s  summary  of  her  interview  with \nRespondent  No.  2,  Rito  Luciano.    Luciano  failed  to  appear  on  either  the  prehearing \ntelephone conference or at the hearing, despite being given reasonable notice of each.  \nAs  was  the  case  with  respect  to  his  wife,  Ribera,  I  am  not  able  to  determine  his \n\nCARBANTES – H500305 \n \n9 \ncredibility.  Therefore, admission of Claimant’s Proffered Exhibit 7 will not help to “best \nascertain the rights of the parties.”  Accordingly, it will not be admitted into evidence. \nAdmission of Claimant’s Proffered Exhibit 8 \n This  proffered  exhibit  is  the  summary  by  Marionneaux  of  the  interview  she \nconducted with Ross Bell.  This individual testified at the hearing.  For the same reason \nas that for the admission of the Byers and Becton Bell interview summaries, Claimant’s \nProffered Exhibit 8 will be admitted into evidence and given due weight. \nCASE IN CHIEF \nSummary of Evidence \n The hearing witnesses  were Claimant,  Ross  Haynes  Bell,  and  Edward  Becton \nBell II. \n In  addition  to  the Prehearing Order  discussed  above,  admitted  into  evidence  in \nthis case were the following:  Commission Exhibit 2, the Prehearing Order that was sent \nvia  certified  mail  to  Respondent  No.  2,  along  with  the  enclosure  letter  and  envelope; \nCommission   Exhibit   3,   the   prehearing   questionnaire   responses   of   Claimant   and \nRespondents No. 1, consisting of four and two numbered pages, respectively; Claimant \nExhibit  1,  a  compilation  of  her  medical  records,  consisting  of  one  index  page  and  27 \nnumbered  pages  thereafter;  Claimant’s Exhibit  2,  the  transcript  of  the  deposition  of \nBecton  Bell  taken  on  June  19,  2025, plus  attachments, consisting  of 80 pages; \nClaimant’s Exhibit 3, the interview summary of Becton Bell taken January 14, 2025, \nconsisting of four pages; Claimant’s Exhibit 6, the interview summary of Wesley Allen \nByers taken  January  16,  2025,  consisting  of three pages;  Claimant’s  Exhibit 8,  the \n\nCARBANTES – H500305 \n \n10 \ninterview  summary  of Ross  Bell taken  January  16,  2025,  consisting  of  four  pages; \nClaimant’s Exhibit  9,  the  Service  Return  of  the  witness  subpoena  for  Maria  Rivera, \nconsisting of two pages; and Joint Exhibit 1, the deposition of Wesley Allen Byers taken \nDecember 16, 2025, consisting of 31 numbered pages. \nAdjudication \nA. Compensability \n At the outset, it must be determined whether Claimant sustained a compensable \ninjury to her left lower extremity.  In order to prove the occurrence of an injury caused by \na  specific  incident  identifiable  by  time  and  place  of  occurrence,  a  claimant  must  show \nthat:  (1) an injury occurred that arose out of and in the course of her employment; (2) \nthe injury caused internal or external harm to the body that required medical services or \nresulted  in  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence \nsupported by objective findings, which are those findings which cannot come under the \nvoluntary control of the patient; and (4) the injury was caused by a specific incident and \nis identifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, \n56 Ark. App. 126, 938 S.W.2d 876 (1997). \n If any  of  the  above  elements  are  not established by  a  preponderance  of  the \nevidence, compensation must be denied.  Id.  This standard means the evidence having \ngreater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \n\nCARBANTES – H500305 \n \n11 \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agric. Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The \nCommission must sort through conflicting evidence and determine the true facts.  Id.  In \nso doing, the Commission is not required to believe the testimony of the claimant or any \nother  witness,  but may  accept  and  translate  into  findings  of  fact  only  those portions of \nthe testimony that it deems worthy of belief.  Id. \n Under Ark. Code Ann. § 11-9-102(11)(A)(iii) (Supp. 2023): \n“Employment” means: \n \n(A)  Every  employment  in  the  state  in  which  three  (3)  for  more \nemployees are regularly employed by the same employer in the course \nof business except: \n \n. . . \n \n(iii) Agricultural farm labor[.] \n \nWith respect to the first element of the compensability issue, if the alleged injury arose \nout  of  and  in  the  course  of alleged employment that consisted of “[a]gricultural farm \nlabor,”  the  injury  is  not  one  governed  by  the  provisions  of  the  Arkansas  Workers' \nCompensation Act. \n In  determining  whether  the  “[a]gricultural  farm  labor”  exemption  applies  in  a \nparticular case, the courts have focused more on “the nature and character of” the \nbusiness of the alleged or purported employer as opposed to the “nature and character \nof” the task in which the claimant was engaged at the time of injury.  See Griffith v. Int’l \nCattle Embryo, Inc., 23 Ark. App. 58, 742 S.W.2d 124 (1988)(citing Dockery v. Thomas, \n226 Ark. 946, 295 S.W.2d 319 (1956); Great Amer. Indemn. Co. v. Bailey, 221 Ark. 469, \n\nCARBANTES – H500305 \n \n12 \n254 S.W.2d 322 (1953); Gwin v. J.W. Vestal and Sons, 205 Ark. 742, 170 S.W.2d 598 \n(1943)).  Whether the employment at issue is comprised of “[a]gricultural farm labor” is a \nlegal question.  Griffith, supra; Franklin v. McCoy, 234 Ark. 558, 353 S.W.2d 166 (1952); \nGwin, supra.  Even if the alleged injury happened while the claimant was performing a \nnon-farm  work  function,  it  still  falls  within  the  ambit  of  the  exemption  if  nature  of  the \nemployer’s business is primarily agricultural.  See, e.g., Gwin, supra. \n With respect to Respondent Bell Planting Company (“Bell Planting”), Ross Bell \ntestified  that  he  is  one  (along  with  his  brother,  Becton)  of  its  general  partners.    The \nfollowing exchange occurred during his direct examination: \nQ. And what does Bell Planting do? \n \nA. I mean, as—I mean, we farm. \n \nQ. So— \n \nA. Grow crop grains. \n \nRoss  Bell  identified  the  Audit  Summary  in evidence  as  being  prepared by  Respondent \nStonetrust for Respondent Bell Planting.  It reads in pertinent part: \nThe  insured  operates  a  row  crop  farm.    The  insured  will  grow  corn, \nsoybeans,  wheat,  and  rice.    The  employees  will  plant,  cultivate,  and \nharvest  crops  and  will  transport  them  to  the  various  mills.    They  will \nperform routine maintenance around the farm. \n \nThe  summary  of  the  statement  that  Becton  Bell  provided  Marionneaux  that  is  in \nevidence reflects that he informed her that Bell Planting “produce[s] soybeans, rice, \ncorn,  and  wheat  on  14,000  acres  of  farmland.   Ross  Bell  gave  a  similar  statement  to \nMarionneaux. \n\nCARBANTES – H500305 \n \n13 \n The evidence above shows the primary function of Respondent Bell Planting was \nand is row crop farming.  This unquestionably constitutes “[a]gricultural farm labor.”  As \ndiscussed above, the primary function of the alleged employer controls over the activity \nin which the claimant was engaged at the time of the injury was sustained for purposes \nof  applying  the  exemption.    But  Claimant  testified  that  her  left  lower  extremity  was \ninjured by an auger inside a grain bin at Bell Planting.  She was sweeping out the bin.  \nThe  auger  pulled  soybeans  out  of  the  bin  and  into  trucks.    Her  work  was  clearly \n“[a]gricultural  farm  labor.”    Consequently,  insofar  as  Claimant’s  claim  relates  to \nRespondent   Bell   Planting  being  her   alleged  employer   on   January   9,  2025,   the \ncompensability  of  her  alleged  left  lower  extremity injury  has  not  been  established \nbecause  it  has  not  been  shown  that  such  arose  out  of  and  in  the  course  of  her \nemployment  there  because  the  §  11-9-102(11)(A)(iii)  exemption  from  the  definition  of \n“employment” controls. \n As  for  Respondent  No.  2,  Luciano, the  evidence  at  bar  likewise  shows  that  he, \ntoo,  falls  under  the  above  exemption.   Ross  Bell  testified  that  Bell  Planting  would \ncontract  with  Luciano  to  furnish  the  company  labor.    He  added  that  the  Bell  Planting \nwould  issue  a  check  for  the  labor  to  Luciano  to  apportion  among  the  workers  he  had \nprocured.  Claimant’s testimony was that Luciano would receive the pay for Claimant’s \nservices; and that he, in turn, gave it to his wife, Maria, to remit to Claimant. \n The following exchange took place during the direct examination of Ross Bell: \nQ. According  to  this  statement,  the—or  at  least  the  summary  of  the \nstatement [Claimant’s Exhibit 8] . . . when the job with the grain bins \nwas  finished,  the  employees  may  go  and  help  you  or  go  help \nanother farmer plant.  Is that also correct? \n\nCARBANTES – H500305 \n \n14 \n \nA. Yes.    So  they  have  worked—Rito  [Luciano] and his  wife,  on  just a \nhandful  of  occasions,  have  worked  at  my  house  doing  flower  bed \nwork and they have cleaned a couple [of] rent houses for me a few \ntimes on  just a  handful  of  occasions.   And  I would  write  the  check \ndirectly to Rito just like the farm on those occasions, too. \n \nThe witness summary of Ross Bell referenced above shows that he was referencing the \npeople that Luciano procured for Bell Planting when he informed Marionneaux that they \nalso helped with planting.  He went on to state, per the summary, that they “do a lot of \nseasonal work for a couple of different farmers.”  The Becton Bell summary reflects that \nhe told Marionneaux that Bell Planting had used Respondent Luciano and his crew for \napproximately four to ten years to clean out grain bins. \n In his June 19, 2025, deposition, Becton Bell testified that Ross Bell  “would \nalways text Rito that we needed a crew to come do this or that, whatever the job may \nbe, whether it be to put in rice fields in the summer or to pull weeds out of a field in the \nsummer, or to clean grain bins in the winter.” \n The  evidence  at  bar  thus  establishes  that  the “the  nature  and  character  of” \nLuciano’s business, per Griffith, supra, was  to  procure  workers  to  perform  agricultural \nlabor—whether    it    be    planting,    pulling    weeds, or    cleaning    out    grain    bins.  \nNotwithstanding the evidence that Luciano’s business also included some landscaping \nand housecleaning, it was clearly primarily agricultural under Gwin, supra.  Thus, to the \nextent  that  the  instant  claim is  founded  on Claimant allegedly being  employed  by  an \nuninsured subcontractor, Respondent Luciano, of Respondent Bell Planting on January \n9, 2025, Claimant’s alleged left lower extremity injury has again not been proven to be \ncompensable.  This is because it has not been shown that the injury arose out of and in \n\nCARBANTES – H500305 \n \n15 \nthe  course  of  her  employment by Luciano  because  the  “[a]gricultural  farm  labor” \nexemption applies to him as well. \nB. Remaining Issues \n Because  of  the  above  finding,  the remaining issues are moot  and  will  not  be \naddressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":23641,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H500305 WENDY JAMILETH CARBANTES, ALLEGED EMPLOYEE CLAIMANT BELL PLANTING CO., ALLEGED EMPLOYER RESPONDENT NO. 1 STONETRUST COMMERCIAL INS. CO., CARRIER RESPONDENT NO. 1 RITO RENARDO LUCIANO UNINSURED ALLEGED EMPLOYER RESPONDENT NO. 2 OPINION FILED FEBRUARY 2...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:32:15.411Z"},{"id":"alj-H402768-2026-02-19","awccNumber":"H402768","decisionDate":"2026-02-19","decisionYear":2026,"opinionType":"alj","claimantName":"Callie Caldwell","employerName":"Lonoke School District","title":"CALDWELL VS. LONOKE SCHOOL DISTRICT AWCC# H402768 February 19, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CALDWELL_CALLIE_H402768_20260219.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CALDWELL_CALLIE_H402768_20260219.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H402768 \n \nCALLIE CALDWELL, EMPLOYEE CLAIMANT \n \nLONOKE SCHOOL DISTRICT,  RESPONDENT \nSELF-INSURED EMPLOYER                 \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, TPA                         RESPONDENT   \n  \n \nOPINION FILED 19 FEBRUARY 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 3 December 2025 in Little Rock, Arkansas. \n \nMr. Gregory R. Giles, Moore, Giles & Matteson, LLP, appeared on behalf of the claimant. \n \nMr. Jarrod Parrish, Worley, Wood & Parrish, PA, appeared on behalf of the respondents. \n \nI. STATEMENT OF THE CASE \n \n A Prehearing Order was filed on 18 September 2025 and admitted to the record as \nCommission’s Exhibit No 1. For this litigation, and consistent with that Order, the parties \nagreed to the following at the hearing: \nSTIPULATIONS \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n 2. Employee/self-insured employer/TPA relationship existed at all relevant  \n  times, including on 15 April 2024, when the claimant fell at work. She alleges \n  that she sustained internal injuries by specific incident on that day. \n \n 3. At the relevant time, the claimant was earning an average weekly wage of  \n  $1,592.47, which would entitle her to the maximum weekly benefits of $876  \n  for temporary total disability (TTD) and $657 for permanent partial disability \n  (PPD). \n \n 4. The respondents have controverted this claim in its entirety. \n \n \n \n \n\nC. CALDWELL- H402768 \n2 \n \nISSUES TO BE LITIGATED \n \n 1. Whether the claimant sustained compensable internal injuries by specific  \n  incident as a result of a fall at work on 15 April 2024.  \n \n 2. Whether the claimant sustained compensable injuries to her left knee and  \n  left shoulder/bicep by specific incident as a compensable consequence of her  \n  injuries alleged to have occurred on 15 April 2024. \n \n 3. Whether the claimant is entitled to medical benefits associated with   \n  reasonably necessary past and future medical treatment related to her  \n  injuries. \n \n 4. Whether the claimant is entitled to TTD benefits for 16 April 2024 and  \n  the period between 18 April 2024 and 16 May 2024. \n \n 5. Whether the claimant is entitled to an attorney’s fee. \n \n All other issues are reserved. \n \nCONTENTIONS \n \n The parties’ Contentions are set out in their respective Prehearing Questionnaire \nresponses: \nClaimant  \n \nThe Claimant contends that she suffered a fall at school on April 15, \n2024, which caused her to suffer internal bleeding resulting in \nemergency room treatment on April 17, 2024. Before she could be \ndischarged from the hospital as a result of the loss of blood she blacked \nout and fell suffering injuries to her left knee and left shoulder/torn \nbicep.  \n \nClaimant contends that the medical treatment that she has had since \nthe fall has been reasonable, necessary and related such that \nRespondents should be ordered to pay for same associated with the \nblood loss and subsequent injuries to her left knee and left shoulder \nbicep.  \n \nClaimant contends that Respondents should be ordered to pay TTD \nbenefits at this point from on or about April 18, 2024, through May 16, \n2024.  \n \nClaimant contends that Respondents should be ordered to pay \nattorney’s fees as provided by law. \n \n All other issues are reserved.  \n\nC. CALDWELL- H402768 \n3 \n \nRespondent \n \nRespondents contend that Claimant did not suffer a compensable injury \non or about April 15, 2024. Respondents contend that in the event \ncompensability is found, Claimant’s need for medical treatment, if any, \nis related to preexisting and underlying issues unrelated to any incident \nthat occurred on April 15, 2024.  \n \nRespondents further contend that the medical records only support \nentitlement to TTD benefits from April 18, 2024 to May 16, 2024 in the \nevent compensability is found.  \n  \nThe Respondents reserve the right to amend their contentions and \nposition in all respects after additional discovery has been completed.  \n \n At the beginning of the hearing, the respondents amended their Contentions to \nmake clear that they deny that the claimant’s fall on 17 April 2024 was a compensable \nconsequence of any work-related accident of injury. \nII. FINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witnesses, observing their demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The Stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant has failed to prove by a preponderance of the evidence that she  \n  suffered compensable internal injuries by specific incident on or about 15  \n  April 2024. \n \n4. Because the claimant has failed to prove a compensable injury, the remaining \n  issues are moot and will not be addressed in this Opinion. \n \nIII. ADJUDICATION \nThe stipulated facts as outlined above are reasonable and accepted. It is settled that \nthe Commission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \n\nC. CALDWELL- H402768 \n4 \n \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \n The claimant was the only witness at the hearing. The record consists of the hearing \ntranscript and the following exhibits: Commission’s Exhibit No 1 (the 23 September 2025 \nPrehearing Order); Claimant’s Exhibit No 1 (a 13-page abstract of the claimant’s medical \nrecords); Claimant’s Exhibit No 2 (a two-page index, one page of wage records, and 350 \npages of medical records); Claimant’s Exhibit No 3 (a one-page Return-to-Work note); \nRespondents’ Exhibit No 1 (one index page and 58 pages of medical records); and \nRespondents’ Exhibit No 2 (one index page and two pages of non-medical records). \n Claimant’s Testimony \n The claimant is a 54-year-old woman who works as a speech language pathologist \nfor the respondent-school district. She has relapsing-remitting Multiple Sclerosis (MS) and \nambulates with the assistance of walking sticks or other assistive devices regardless of \nwhether she is experiencing any disease-related symptoms. \n While at work on 15 April 2024, which happened to be an administrative day for \nmeetings with staff and parents, she tripped on her way to the restroom. She attributed her \nfall to catching her foot on a mat in the hallway just outside of the restroom doors. She \ndenied perceiving any injuries after falling, but she was unable to get up. She crawled into \n\nC. CALDWELL- H402768 \n5 \n \nthe restroom and eventually called for help from her cellphone. Staff attempted to help her \nup from the floor, but they were unable to lift her. The claimant’s sons eventually arrived to \nlift her from the floor. After being seen by the school nurse, the claimant completed a Form \nAR-N that denied any injury. At her principal’s suggestion, she went home early that day. \n The claimant stayed home from work the following day. She testified that she was \n“sore” but otherwise felt “fine.” [TR at 26.] She then returned to work the next day (17 April \n2024). At some point that afternoon, she felt light-headed and that her “stomach was \ngetting queasy.” Id. She went to the restroom and noticed that she passed blood and bloody \nstool in the toilet. She finished working that day without reporting any injury or illness to \nher employer. Later that evening she asked her husband to take her to the emergency \ndepartment for evaluation.  \n At the emergency department she “described the events of the day, seeing the blood, \nfeeling bad, and at this point, I was feeling weak.” [TR at 28.] She also reported that she \nhad experienced a workplace fall two days earlier. In her testimony, the claimant denied \nany history of passing blood. She acknowledged, though, that she had an established \nhistory of iron deficiency anemia. Her anemia would be treated with iron infusions, oral \niron supplements, or a combination of both, depending on her blood levels and \nresponsiveness to the treatment(s). \n The claimant testified that her hemoglobin levels continued to fall during her time \nin the emergency department; but she did not recall any treatment actually being \nadministered during that time. After some evaluation and diagnostic imaging in the \nemergency department, the claimant was diagnosed with diverticulosis and readied for \ndischarge with orders to follow-up with her PCP and for further GI evaluation. A \nwheelchair was brought into the exam room for her discharge. But she did not make it out \nof the exam room: “And I stand up just to transition—just to stand up, and then, sit right \n\nC. CALDWELL- H402768 \n6 \n \nback down and I barely got the phrase out, you know, ‘I’m gonna pass out,’ and I was down. \nI mean it was almost instantaneous.” [TR at 35.] The claimant passed out. She regained \nconsciousness a few moments later, sitting on the exam room floor with hospital staff \nchecking on her. After getting up and back into the exam bed, the claimant’s head and left \nshoulder were hurting from her collapse to the floor. \n According to the claimant, she ultimately received three units of blood and \nadditional diagnostic imaging, including a colonoscopy and gastroduodenoscopy and \nshoulder X-rays. She then remained inpatient for a few days. After being discharged (again) \nfrom the hospital, she had pain in her left shoulder and “realized that the knee, the left \nknee, was also hurting.” [TR at 41.] She then followed up with her PCP for her shoulder \nand knee complaints. \n On cross-examination, the claimant acknowledged her iron deficiency and anemia \nhistory and that she had previously testified that she had experienced no related issues in \nthe preceding 10 years. The records revealed that she had, however, been seen as recently \nas February and March of 2023 for anemia-related evaluation and treatment. She denied \nthat iron deficiency anemia and passing bloody stool could be complications associated with \nher history of gastric bypass surgery. \n While the claimant testified that she believed her bleeding and syncope episode was \nattributable to an intestinal polyp that ruptured when she fell on 15 April 2024, she \nacknowledged that the medical records made no such indication. She agreed that the \nmedical records only showed “diverticulosis with no evidence of diverticulitis, no other acute \nfindings.” [TR at 80.] \n \n \n \n\nC. CALDWELL- H402768 \n7 \n \nMedical Records \n Pre-Incident   \n The claimant provided an extensive set of medical records. The records confirm a \nhistory of iron deficiency anemia, gastric bypass surgery, and MS. A CARTI \nHematology/Oncology note from 22 February 2016 indicated that the claimant was having \nto manage her need for iron supplementation versus related severe abdominal cramping \nand a history of gastric bypass surgery. No active rectal bleeding was reported at that time. \nThe outside lab results noted in the record indicated low hemoglobin levels on 30 July 2015. \n[Cl. Ex. No 2 at 3.] A subsequent visit note from 5 October 2016 represented previously low \nhemoglobin values on 9 September 2015 and on 21 October 2015. [Id. at 7.] \n On 5 January 2020, the claimant presented to an urgent care clinic in Lonoke with \ncomplaints of left knee pain and swelling after experiencing a fall at home. Lab results from \nthat visit also showed low hemoglobin values. [Id. at 12.] \n On 23 February 2023, the claimant established care at a Baptist Health clinic in \nLonoke. Her chief complaint was listed as anemia. The record indicated that her \nhemoglobin was again low at the time. [Id. at 19.] Fatigue, weakness, numbness, Vitamin D \ndeficiency, Folic acid deficiency, Vitamin B12 deficiency, arthritis, and lower extremity \nedema were also noted as problems during that visit. \n Post-Incident \n The claimant presented to the Baptist Emergency Department on the night of 17 \nApril 2024. Her complaint upon arrival was listed as “GI bleed, fell on Monday.” [Id. at 29.] \nThe treatment flowsheet in the records shows that the Chief Complaint was later updated \nto Rectal Bleeding with “Fall” being struck-through. [Id. at 32.] Her hemoglobin was again \nfound to be low. She was diagnosed with an unspecified gastrointestinal hemorrhage and \niron deficiency anemia due to chronic blood loss.  \n\nC. CALDWELL- H402768 \n8 \n \n A physician’s note from the emergency department includes the following: \n... presents with blood in the stool and some left lower quadrant pain. She \nalso has some aches and pains from a fall yesterday but does not have any \nobvious deformity and is more concerned about the blood in the stool. \nDifferential diagnosis includes GI bleed, diverticulosis, diverticulitis, internal \nhemorrhoid, anemia. \n. . .  \nCT of the abdomen/pelvis shows diverticulosis without evidence of \ndiverticulitis. No evidence of colitis. CT otherwise negative. We discussed \nadmission for further workup and management versus outpatient follow-up \nwith primary care doctor and gastroenterology. At this time she would prefer \nto go home. I think that is reasonable since she has normal vital signs and \nhemoglobin of 9 with no evidence of active bleed on CT and no signs of colitis \nor other acute abnormality. \n \n[Id. at 68.] Her inpatient admission record states, “patient stood up to leave after discharge \nand became very lightheaded and then had a syncopal event....” [Id.] \n One note from her inpatient stay indicates that the claimant experienced “acute \nblood loss anemia due to hematochezia from perspective diverticular bleed.” [Id. at 81.] The \nCT scan of her abdomen showed: “1. Colonic diverticulosis. No evidence of diverticulitis. 2. \nNo evidence of bowel obstruction. 3. Normal appendix. 4. No other acute findings. 5. \nIncidental findings as described.” [Id. at 84.] It was further noted that a history of gastric \nbypass “can have nutritional deficiencies contributing to anemia.” [Id. at 98.] \n Another note from her stay, dated 21 April 2024, shows that she experienced a \nbloody bowel movement the night before and an associated drop in hemoglobin and \nhematocrit levels. The doctor stated that the claimant would “benefit from EGD and \ncolonoscopy given her longstanding [iron deficiency anemia], to be completed tomorrow.” \n[Id. at 105.] Those imaging studies confirmed diverticulosis. The impression listed “suspect \nresolved diverticular bleed with underlying [iron deficiency anemia] related to her [gastric \nbypass surgery].” [Id. at 110.] Small internal hemorrhoids were also noted on the EGD \nreport. [Id. at 152.] She was eventually discharged home with orders for physical therapy. \n\nC. CALDWELL- H402768 \n9 \n \n The claimant followed up at the Baptist Health clinic on 30 April 2024. She \ncomplained of ongoing shoulder pain, which was misattributed to her fall at school versus \nher fall in the emergency department. [Id. at 217.] At a subsequent follow-up, she noted \nongoing pain in her left knee that she attributed to her fall in the emergency department. \n[Id. at 226.] She continued pursuing treatment afterwards for complaints of left knee and \nleft shoulder pain. \nDISCUSSION \nThe initial matter in this claim is whether the claimant sustained compensable \ninternal injuries by specific incident after a fall at work on 15 April 2024. To prove a \ncompensable injury by specific incident, she must establish four (4) factors by a \npreponderance of the evidence: (1) the injuries arose out of and in the course of her \nemployment; (2) the injuries caused internal or external harm to the body that required \nmedical services or resulted in disability or death; (3) the injuries are established by \nmedical evidence supported by objective findings, which are those findings which cannot \ncome under the voluntary control of the patient; and (4) the injuries were caused by a \nspecific incident identifiable by time and place of occurrence. Mikel v. Engineered Specialty \nPlastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). The employee has the burden of proving \nby a preponderance of the evidence that he sustained a compensable injury. Id. § 11-9-\n102(4)(E)(i). Preponderance of the evidence means the evidence having greater weight or \nconvincing force. Metropolitan Nat'l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d \n252 (2003). If a claimant fails to establish by a preponderance of the evidence any of the \nrequirements for establishing a compensable injury, compensation must be denied. Mikel, \nsupra. \n\nC. CALDWELL- H402768 \n10 \n \n\"Objective findings\" are those findings which cannot come under the voluntary \ncontrol of the patient. Id. § 11-9-102(16)(A)(i). The requirement that a compensable injury \nmust be established by medical evidence supported by objective findings applies only to the \nexistence and extent of the injury. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 \nS.W.2d 472 (1997). \nThe claimant has failed to prove by a preponderance of the evidence that she \nsustained compensable internal injuries as a result of her workplace fall on 15 April 2024. \nThere is no question that the claimant tripped and fell that day. And she acknowledges that \nshe completed a Form AR-N on the same day indicating that she suffered no injuries in her \nfall. [Resp. Ex. No 2.] She now argues, however, that she actually sustained internal injuries \nthat were unknown to her at the time that she completed her post-accident paperwork; that \nthose injuries caused internal bleeding and eventual blood loss; and that an unanticipated \nsyncope event, while being discharged from the emergency department for the evaluation of \nthe alleged internal injuries, resulted in additional injuries to her left knee and left \nshoulder. The knee and shoulder injuries from the second fall, she says, are compensable \nconsequences of the unbeknownst internal injuries that she sustained in her workplace fall.  \n The credible evidence, however, does not support her claim of a compensable injury \nin the first instance. The records show that the claimant has an established history of iron \ndeficiency anemia and low hemoglobin. She has received iron infusions and courses of iron \nsupplementation over the years to address the problem. When she established care at a new \nclinic about a year before her workplace fall, fatigue and weakness were noted along with \nchronic anemia and vitamin deficiencies. \n The claimant presented to the emergency department after she experienced rectal \nbleeding on April 17\nth\n, two days after her workplace fall. Through the course of her \nevaluation and treatment, she underwent CT imaging and upper and lower GI scope \n\nC. CALDWELL- H402768 \n11 \n \nstudies that revealed no indication that the bleeding or the anemia were related to a recent \ntrauma or blunt force injury. There are no objective findings that support her notion that \nthe fall at work was a mechanism of any sort of internal hemorrhagic injury. The medical \nrecords simply do not relate her workplace fall to the bleeding that she happened to have \nexperienced days later. Instead, the evidence clearly shows that the claimant was \ndiagnosed with a diverticular bleed that the medical reports and opinions suggested was \nrelated to her chronic anemia, which was possibly an ongoing complication from a past \ngastric bypass surgery. Finding now that the claimant’s bleeding episode was related to her \nworkplace fall would require engaging in speculation and conjecture, which cannot stand in \nthe place for actual proof. Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 \n(1979). Accordingly, the claimant has failed to prove by a preponderance of the evidence \nthat she suffered compensable internal injuries as a result of her workplace fall.  \n Because the claimant has failed to prove a compensable injury, the other issues in \nthis claim are moot and will not be addressed in this Opinion. \nIV.  CONCLUSION  \n Consistent with the Findings of Fact and Conclusions of Law, this claim for initial \nbenefits is DENIED and DISMISSED. \nSO ORDERED. \n      ________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":21075,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402768 CALLIE CALDWELL, EMPLOYEE CLAIMANT LONOKE SCHOOL DISTRICT, RESPONDENT SELF-INSURED EMPLOYER ARKANSAS SCHOOL BOARDS ASSOCIATION, TPA RESPONDENT OPINION FILED 19 FEBRUARY 2026 Heard before Arkansas Workers’ Compensation Commission Administrative Law J...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["knee","shoulder","back"],"fetchedAt":"2026-05-19T22:32:11.212Z"},{"id":"alj-H208579-2026-02-19","awccNumber":"H208579","decisionDate":"2026-02-19","decisionYear":2026,"opinionType":"alj","claimantName":"Kathy Carrothers","employerName":"Southern Arkansas University","title":"CARROTHERS VS. SOUTHERN ARKANSAS UNIVERSITY AWCC# H208579 February 19, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CARROTHERS_KATHY_H208579_20260219.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CARROTHERS_KATHY_H208579_20260219.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208579 \n \nKATHY L. CARROTHERS,  \nEMPLOYEE                                                  CLAIMANT \n \nSOUTHERN ARKANSAS UNIVERSITY,  \nEMPLOYER                                                    RESPONDENT \n \nSTATE OF ARKANSAS/PUBLIC EMPLOYEE                                \nCLAIMS DIVISION,    \nINSURANCE CARRIER/TPA                                  RESPONDENT \n                                                                                                                                  \n \nOPINION FILED FEBRUARY 19, 2026 \n \nHearing conducted on Friday, November 21, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission), Administrative  Law  Judge  (ALJ)  Mike  Pickens  in  Texarkana, \nMiller County, Arkansas. \n \nThe claimant was represented by the Honorable Gregory R. Giles, Moore, Giles & Matteson, LLP, \nTexarkana, Miller County, Arkansas.  \n \nThe  respondents  were  represented  by  the  Honorable  Charles  H.  McLemore,  State  of  Arkansas, \nPublic Employee Claims Division (PECD), Little Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \n \nIn the amended prehearing order filed October 3, 2025, the parties have agreed to the \nfollowing stipulations which they affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed at  all  relevant  times \nincluding June 7,  2022, when the  claimant sustained an  admittedly compensable \ninjury to her right shoulder for which the respondents paid only medical benefits, \nbut no indemnity benefits. \n \n3. The claimant’s average weekly wage (AWW) is $510.24,  which  is  sufficient  to \nentitle her to weekly compensation rates of $340.00 for temporary total disability \n(TTD), and $255.00 for permanent partial disability (PPD) benefits. \n \n4. The claimant has not missed any time from work as a result of the June 7, 2022, \ncompensable injury. \n\nKathy L. Carrothers, AWCC No. 208579 \n \n2 \n \n \n5. The  claimant  requested and  by  Commission  order  filed  November  12,  2024,  the \nCommission granted, her one (1)-time-only change of physician (COP) request to \nDr. D’Orsay Bryant. \n \n6. The respondents controvert the claimant’s claim for additional medical treatment \nand any PPD benefits for alleged permanent anatomical impairment. \n  \n7. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Commission Exhibit 1 at 1-2; Reporter’s Transcript at 4). Pursuant to the parties’ mutual \n \nagreement the issues litigated at the hearing were: \n \n1. Whether  the  claimant was entitled  to  additional  medical  treatment  in  the  form  of  an \nMRI, as well as any and all of Dr. Gati’s medical treatment obtained before and/or after \nthe date of the MRI. \n \n2. Whether and to what extent, if any, the claimant is entitled to PPD benefits based on \nalleged permanent anatomical impairment. \n \n3. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n(Comms’n Ex. 1 at 2; T. 4).  \nThe claimant contends she is entitled to the payment of the MRI she underwent, as well as \nany and all additional medical treatment and expenses Dr. Gati rendered  to her both before and \nafter  the  date  of  the  MRI,  as  they  constitute  related  and  reasonably  necessary  treatment  for  her \ncompensable  injury.  The  claimant further contends she  is  entitled  to  PPD  benefits  based  on  a \npermanent anatomical impairment rating of five percent (5%) to the body-as-a-whole associated \nwith  her  compensable  right  should  injury,  and  that  her  attorney  is  entitled  to  a  controverted \nattorney’s fee. (Comms’n Ex. 1 at 3; T. 4; 42-43; 45).  \n\nKathy L. Carrothers, AWCC No. 208579 \n \n3 \n \n      The respondents  contend  they  have  paid  the  claimant  all  medical  benefits  to which  she  is \nentitled based upon her “medical only”, no-lost-time claim and that she cannot meet her statutory \nburden of proof on either of the two (2) issues to be litigated herein. They contend that both the \nsubject MRI as well as any and all medical treatment Dr. Gati provided to the claimant both before \nand/or  after  the  MRI  are  unrelated  to  and  not  reasonably  necessary  for  treatment  of  her \ncompensable  injury.  The  respondents  further contend  the  claimant  is  not  entitled  to  any  PPD \nbenefits based on alleged permanent anatomical impairment as she has a preexisting condition of \narthritis in her right shoulder that is the “major cause” of her disability and/or need for medical \ntreatment. (Comms’n Ex. 1 at 3; T. 4; 43-45). \n     The record consists of the reporter’s transcript and any and all exhibits contained therein or \nattached thereto.    \nSTATEMENT OF THE CASE \n       The claimant, Ms. Kathy L. Carrothers, was 72 years old at the time of the hearing and was \n69 years old at the time of her June 7, 2022, admittedly compensable “medical only”, no-lost-time \nright  knee  injury.  On  June  7,  2022,  the  claimant  was  working  as  an  assistant  specialist in  the \nStudent Activities Office at Southern Arkansas University (SAU) in Magnolia, a job that is light \nduty in nature as the claimant described it. On June 7, 2022, the claimant was working at a student \ncasino night when she picked-up a box of faux gambling chips which she described as “heavy” \nwhen she felt pain and discomfort in her right shoulder and she knew “that something had \nhappened.” (T. 10; 7-13). She continued to work but she did go to see the SAU nurse. When her \nright shoulder continued to hurt on the evening of June 7, 2022, the claimant testified the next day \n\nKathy L. Carrothers, AWCC No. 208579 \n \n4 \n \nshe went to the SAU Health Office and initiated the workers’ compensation claim process. (T. 10-\n11). \n     The respondents accepted the June 7, 2022, work injury as a temporary aggravation of her \npreexisting arthritic condition and a “medical-only” claim. (T. 13-39). As stipulated the claimant \nnever lost any time from work as a result of the June 7, 2022, work incident. (Stipulation 4, supra). \nMedical records show the claimant first sought medical treatment for her right shoulder on June \n28, 2022, with Dr. Rodney Griffen. (Claimant’s Exhibit 2 at 1-7). Since then she has undergone a \nnumber  of  diagnostic  tests  and  various  conservative  treatment  modalities  including  taking \nmedications and undergoing physical therapy (PT). (T. 11-41; CX 1 at 1-8; Claimant’s Exhibit 2 \nat 1-140; Respondents’ Exhibit 1 at 1-12).     \n     As a result of her continued complaints of pain in her right shoulder the claimant eventually \ncame  under  the  care  of  Dr.  Kenneth  G.  Gati,  an  orthopedic  surgeon at  South  Arkansas \nOrthopaedics & Sports Medicine. She first saw Dr. Gati on September 13, 2022. The clinic note \nfor  this  date  indicates  the  claimant  was  taking many prescription  medications  for  various \nconditions,  including  Amytryptiline,  a  tricyclic  antidepressant  commonly  used  for  treatment  of \nchronic pain, nerve pain and fibromyalgia, among other complaints; Methylprednisone, a strong \ncorticosteroid used to treat arthritis, inflammation and other conditions; and Tramadol, a narcotic \npain  relief  medication.  (CX1  at  43).  X-rays taken on this date of the claimant’s right shoulder \nshowed “no acute bony abnormality”, and Dr. Gati’s initial “Diagnostic Code” was, “Complete \nrotator  cuff  tear  or  rupture  of  right  shoulder,  not  specified  as  traumatic...  .”  (CX1  at  44). \n\nKathy L. Carrothers, AWCC No. 208579 \n \n5 \n \nConsequently, Dr. Gati ordered an MRI of the claimant’s right shoulder which was conducted on \n9/15/2022. \n     The “IMPRESSION” section of the radiologist’s interpretation of the 9/15/2022 MRI results \nof the claimant’s right shoulder states the study revealed in relevant part, “1. High-grade interstitial \ntearing  of  the  supraspinatus  tendon  at  and  near  the  footprint  on  a  background  of  severe \ntendinosis...2. High-grade  delaminating  tear  extends  into  the  infraspinatus  musculotendinous \njunction, on a background of severe tendinosus...5.  Moderate  glenohumeral  osteoarthritis  with \ndegenerative labral  tearing  greatest  posteriorly...6. Severe  acromioclavicular osteoarthrosis. \nSmall marginal osteophytes and possible subacromial enthesophyte may contribute to the clinical \ndiagnosis  of  extrinsic  impingement.”  (CX2  at  49;  48-49).  Dr.  Gati’s  9/20/2022  clinic  note \nsummarizes the claimant’s right shoulder problems under the heading “DIAGNOSTIC  TEST \nFINDINGS:  MRI  shows  high-grade  tendinosis  to  the  rotator  cuff.  There  was  also  bicipital \ntendinitis  There  are  [sic]  degenerative  tearing  of  the  labrum.  There  is  [sic]  also  degenerative \nchanges  to  the  glenohumeral  joint  and  also  the  acromioclavicular  joint.  There  is [sic]  findings \nconsistent with impingement.” (CX2 at 52;  51-53)  (Emphasis  in  original;  Bracketed  material \nadded).  \n     Thereafter,  Dr.  Gati  treated  the  claimant’s  pain  with  injections  and  other  conservative \ntreatment  modalities such  as medications  and  PT.  (CX2  at  51-115).  The  claimant  testified  she \ncurrently takes over-the-counter (OTC) medication to manage her pain complaints, and that she \ndid not want to undergo the Dr. Gati had recommended in 2022 the June 2022, and she does not \nwant to undergo any surgery at this time. (T.20-41). \n\nKathy L. Carrothers, AWCC No. 208579 \n \n6 \n \n     The  claimant  next  treated  with  Dr.  Charles  E.  Pearce. In  a  report  dated  October  18,  2022 \n(which  also  contains  an  addendum  dated  November  8,  2022), after  having  both  examined  the \nclaimant in  person and reviewing  all  her medical  records  and diagnostic  studies  including  the \n9/15/2022, MRI, Dr. Pearce attributed  the  claimant’s  right  shoulder  pain  to  a  “probable \nexacerbation [sic] pre-existing arthritis.” (RX1 at 3; 3-4) (Bracketed material added). Dr. Pearce \nwent  on  to  state  as  follows: “I  suspect  rotator cuff  findings  or  [sic]  age-related. I  do  not  see \nevidence of a full thickness tear.” (RX1 at 3) (Bracketed material added).  \n     On November 2, 2022, the claimant underwent a Functional Capacity Evaluation (FCE) at \nFunctional Testing Centers, Inc., which was interpreted as reliable and indicated she had reached \nmaximum medical improvement (MMI) and was able to work in the LIGHT classification based \non the United States Department of Labor Guidelines (the DOL Guidelines). The FCE report does \nnot indicate the claimant sustained any percentage of permanent anatomical impairment as a result \nof the June 7, 2022, work incident. (CX2 at 84-104). Again, the claimant continued to work at her \nregular job at SAU after the June 7, 2022, work incident and again, as stipulated, she has never \nmissed any time from work as a result of the June 7, 2022, work incident. (Stipulation 4, supra). \n     Dr. Pearce reviewed the FCE results and issued a November 8, 2022, addendum to his initial \n10/18/2022, report. (RX1 at 4). In this addendum Dr. Pearce opines as follows:  \n          Functional Capacity Evaluation (FCE) was completed on November 2, 2022. \n          The patient gave a reliable effort and was placed in the light category of work. \n          This is secondary to her pre-existing arthritis and not an on-the-job acute injury. \n          This is stated within a reasonable degree of medical certainty. Further, there is \n          no impairment rating related to the reported injury date of June 7, 2022. The \n          only objective findings are those of a glenohumeral acromioclavicular arthritis. \n\nKathy L. Carrothers, AWCC No. 208579 \n \n7 \n \n \n        Additionally, I have revied radiographs from June 28, 2022, and July 20, 2022, \n        of the patient’s right shoulder. There is no acute abnormality. She has preexisting \n        arthritis. Patient was under the impression that she had AC separation but that is not \n        shown. Again, this is stated within a [sic] degree of medical certainty. \n \n        The patient has reached maximum medical improvement as it pertains to the on-the- \n        job injury.    \n \n(RX1 at 2) (Bracketed material added). Moreover, two (2) detailed and thorough reports – one (1) \ndated December 19, 2022, and a second dated January 17, 2023 – of orthopedic specialists from a \nthird-party peer review company, Medical Review Institute of America, LLC, also in agreement \nwith Dr. Pearce’s opinions regarding the issues litigated at the subject hearing. (RX1 at 9-12).  \n     The claimant did not pursue or actively prosecute her workers’ compensation claim, and it \nappears  her  employer- sponsored  health  insurance  was  paying  her  bills,  not  the  workers’ \ncompensation  carrier.  (T.  25-41).  Consequently,  the  respondents  filed  a  motion  to  dismiss  this \nclaim without prejudice for lack of prosecution (MTD). On August 8, 2024, a hearing was held on \nthe respondents’ MTD and the ALJ decided to hold a final opinion on the respondents’ MTD in \nabeyance. (T. 18-19).  \n     Soon  thereafter  the  claimant  requested  and by  an order  filed  November  12,  2024  (and \napparently an amended order filed November 19, 2024) the Commission granted her one (1)-time-\nonly COP request to see Dr. D’Orsay Bryant. Dr. Bryant ordered a new, updated MRI apparently \nto confirm or corroborate or update the condition of the claimant’s right shoulder; however, he did \nnot articulate in detail his reason for requesting the new MRI. (Stipulation 5, supra; CX2 at 117-\n\nKathy L. Carrothers, AWCC No. 208579 \n \n8 \n \n119). In a clinic note dated April 22, 2025, Dr. Gati also suggested the claimant undergo an updated \nMRI  to  ascertain the  current  condition  of her right  shoulder.  (CX2  at  121;  120-121).  The \nrespondents denied payment for this MRI as constituting unrelated treatment that is not reasonably \nnecessary in light of the June 7, 2022, work incident, so the claimant’s employer-sponsored health \ninsurance paid for it.  \n     None of the medical doctors who served as the claimant’s treating physicians – Dr. Russell, \nDr. Gati, or Dr. Bryant – ever issued her a permanent anatomical impairment rating. But in a report \ndated  July  22,  2025, a  chiropractor,  Joe  Hugghins,  of  Academy  Rehab  in  Longview,  Texas, \nprepared  a  document in  which,  among  other  things,  he  cites  Texas  law in  support  of  his  MMI \nopinion. (CX2 at 130-140). It appears Texas Chiropractor Hugghins examined the claimant and \nher medical records for  35 minutes on July 22, 2025, and, thereafter, he  wrote his report of the \nsame  date  opining  the  claimant  is  entitled  to  a  permanent  anatomical  impairment  rating  of  five \npercent  (5%)  to  the  body-as-a-whole  (BAW). It is unclear from Chiropractor Hugghin’s report \nwhether he was familiar with or qualified to render such an opinion, and whether he either applied \n(or appropriately applied) the 4\nth\n Edition of the AMA Guides. (CX2 at 136-137). \n     The claimant testified she continues to experience subjective complaints of pain in her right \nshoulder, and to date none of the conservative treatment she has been offered has alleviated those \ncomplaints. She has also made it clear she does not want to undergo surgery on her right shoulder. \n(T. 12-41).  \n \n    \n\nKathy L. Carrothers, AWCC No. 208579 \n \n9 \n \nDISCUSSION \nThe Burden of Proof \n      When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord as a whole, whether the party having the burden of proof on the issue has established it by \na  preponderance  of  the  evidence. Ark.  Code  Ann. § 11-9-704(c)(2)  (2025 Lexis  Replacement). \nThere is no presumption that a claim is compensable, that an injury is job-related, or that a claimant \nis entitled to benefits. Crouch Funeral Home v. Crouch, 262, Ark. 417, 557 S.W.2d 392 (1977); \nOkay  Processing,  Inc.  v.  Servold,  265  Ark.  352,  578  S.W.2d  224  (1979). The  claimant  has  the \nburden of proving by a preponderance of the evidence that she is entitled to benefits. Stone v. Patel, \n26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). In determining whether the claimant has met \nhis burden of proof, the Commission is required to weigh the evidence impartially, without giving \nthe  benefit  of  the  doubt  to  either  party. Ark.  Code  Ann. §  11-9-704(c)(4); Gencorp  Polymer \nProducts v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, \n22 Ark. App. 196, 737 S.W.2d 633 (Ark. App. 1987). The ALJ, the Commission, and the courts \nshall strictly construe the Act, which also requires them to read and construe the Act in its entirety, \nand  to  harmonize  its  provisions  when  necessary. Farmers’ Coop. v. Biles, 77  Ark.  App.  1,  69 \nS.W.2d 899 (Ark. App. 2002). \n     All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Correc. v. Glover, 35 \nArk. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \n\nKathy L. Carrothers, AWCC No. 208579 \n \n10 \n \nof the witnesses and the weight to give their testimony. Whaley v. Hardee’s, 51 Ark. App. 116, \n912 S.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s \nor any other witness’s testimony but may accept and translate into findings of fact those portions \nof the testimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 \n(Ark. App. 1989); and Farmers’ Coop., supra. The Commission has the duty to weigh the medical \nevidence just as it does any other evidence, and  to resolve conflicting medical opinions; and its \nresolution of the medical evidence has the force and effect of a jury verdict. Williams v. Pro Staff \nTemps., 336 Ark. 510, 988 S.W.2d 1 (1999); Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 57 S.W.3d \n735 (Ark. App. 2001). Although it is within the Commission’s province to weigh conflicting \nevidence,  it  may  not  arbitrarily  disregard  medical  evidence  or  the  testimony  of  any  witness. \nPatchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (Ark. App. 2004).  \nRelated, Reasonably Necessary Medical Care and Treatment \n     Ark.  Code  Ann.  §  11-9-508(a)(1)  (2025  Lexis Replacement)  requires  an  employer  to \npromptly provide an injured worker with, among other modalities, such medical treatment “as may \nbe reasonably necessary in connection with the injury received by the employee.” The burden of \nproof is on the claimant to prove the medical treatment he requests is reasonable and necessary for \ntreatment of her compensable injury. Lankford v. Crossland Constr. Co., 2011 Ark. App. 416, 384 \nS.W.3d  561  (Ark.  App.  2011).  What  constitutes  reasonably necessary  medical  treatment  is  a \nquestion  of  fact  for  the  Commission  and  turns  on  the  sufficiency  of  the  evidence. Wright \nContracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (Ark. App. 1984); Gansky v. Hi-\nTech Eng’g, 325 Ark. 163, 924 S.W.2d 790 (1996). \n\nKathy L. Carrothers, AWCC No. 208579 \n \n11 \n \n     While  injured  employees  must  prove  that  medical  services  are  reasonably  necessary  by  a \npreponderance of the evidence, Arkansas law is well-settled that such services may include those \nnecessary  to  accurately  diagnose  the  nature  and  extent  of  the  compensable  injury;  to  reduce  or \nalleviate  symptoms  resulting  from  the  compensable  injury;  to  maintain  the  level  of  healing \nachieved; or to prevent further deterioration of the damage produced by the compensable injury. \nArk. Code Ann. § 11-9-705(a)(3); Jordan v. Tyson Foods, Inc., 51  Ark.  App. 100, 911 S.W.2d \n593 (Ark. App. 1995).  \n     Our court of appeals has noted that even if the healing period has ended, a claimant may be \nentitled to ongoing medical treatment if the treatment is geared toward management of problems \nemanating from his compensable injury. Patchell v. Wal-Mart Stores, Inc., 86 Ark App. 230, 184 \nS.W.3d 31, (Ark. App. 2004). A claimant is not required to support the alleged need for continued \nmedical  treatment  with  objective  findings. Chamber  Door  Industries,  Inc.  v.  Graham,  59  Ark. \nApp. 224, 956 S.W.2d 196 (Ark. App. 1997). \n     Reasonably  necessary  medical  services  include  those  necessary  to  reduce  or  alleviate \nsymptoms resulting from the compensable injury. Ark. Code Ann. § 11-9-705(a)(3); and Jordan, \nsupra. Also, reasonably necessary medical services include those necessary to reduce or alleviate \nsymptoms resulting from the compensable injury. Ark. Code Ann. § 11-9-705(a)(3); and Jordan, \nsupra.     \n     The  preponderance  of  the  credible  medical  evidence  of  record  conclusively  reveals  the \nclaimant  sustained  a  minor injury  which  resulted  only  in  a temporary  aggravation  of  her long-\nstanding preexisting arthritic condition in her right shoulder which was readily apparent to all of \n\nKathy L. Carrothers, AWCC No. 208579 \n \n12 \n \nher authorized treating physicians, and to Dr. Pearce, as of – at the latest – November 8, 2022, the \nfull extent of the condition of the claimant’s right shoulder, as well as the cause of her pain: the \ndegenerative changes naturally associated with the aging process. Both the claimant’s diagnosis \nand  the  etiology of  it  were  readily  apparent  to  all  her  authorized  treating  physicians  and  to  Dr. \nPearce long before the claimant returned to Dr. Gati on her own initiative on April 22, 2025, the \ndate he suggested the second MRI.  \n     Moreover, the peer review reports of a medical doctor (MD) and orthopedic specialist, Dr. \nKim Sloan, dated December 19, 2022, and January 7, 2023, are thorough, independent, and reflect \na knowledge of the claimant’s medical history, treatment, and diagnostic testing following the June \n7, 2022, minor work incident. I find Dr. Sloan’s reports to be credible and highly persuasive on \nthese facts, especially when considered in light of the medical records of the claimant’s treating \nphysicians, and Dr. Pearce’s opinions stated above which . (RX1 at 2). When considering all of \nthe  medical  evidence  as  a  whole,  I  find  Dr.  Pearce’s  opinions  to  be  well  informed,  highly \npersuasive, independent, clear and the most credible on these facts. And, again, note that Dr. Pearce \nfinds that the claimant’s objective medical findings are all degenerative in nature, and are neither \nacute or the result of trauma. \n     The  preponderance  of  the  credible  medical  evidence  of  record  reveals  the  claimant’s right \nshoulder problems were related to age-related degenerative changes which were only temporarily \naggravated by the minor June 7, 2022 work incident (for which the claimant did not seek medical \ntreatment until June 28, 2022 (CX2 at 3-7)); that she reached MMI from her June 7, 2022, injury \nas of November 8, 2022; and that no further diagnostic tests or medical treatment from that point \n\nKathy L. Carrothers, AWCC No. 208579 \n \n13 \n \nforward could be related to, or reasonably necessary in light of, the obviously minor June 7, 2022, \nwork incident. Indeed, even the claimant herself admitted that none of the medical treatment she \nhas undergone for the last period of almost four (4) years, has alleviated her pain. And it is also \ninteresting the claimant returned to see Dr. Gati only after the respondents filed their MTD. \n    Therefore, the claimant has failed to meet her burden of proof in demonstrating that either the \nadditional MRI Dr. Gati suggested in April 2025, or any and all treatment – which the claimant \nhas failed to specify at the hearing or in the record – is either related to or reasonably necessary in \nlight of her minor injury of June 7, 2022, for which she reached MMI on November 8, 2022.    \nPermanent Anatomical Impairment \n     The claimant must prove by a preponderance of the evidence that he is entitled to an award \nof   permanent physical   impairment. Ark.   Code   Ann. §   11-9-102(4)(F)(ii)(a)   (2025   Lexis \nReplacement) states that: \"Permanent benefits shall be awarded only upon a determination that the \ncompensable injury was the major cause of the disability or impairment.\" \"Major cause\" is defined \nas more than fifty percent (50%) of the cause, and the claimant must prove the compensable injury \nwas the “major cause” of his disability or impairment by the preponderance of the evidence. Ark. \nCode Ann. § 11-9-102(14). In addition, any determination of the existence or extent of physical \nimpairment  shall  be  supported  by  objective  and  measurable  findings. Ark. Code  Ann. § \n11-9-704(c)(1)(B). Finally,  pursuant  to Ark.  Code  Ann. §  11-9-522(g),  the  Commission  has \nadopted  the American  Medical Association’s (AMA) Guides  to  the  Evaluation  of  Permanent \nImpairment (4\nth\n Edition 1993) (the AMA Guides), for assessing anatomical impairment, “exclusive \nof any sections which refer to pain and exclusive of straight leg raising tests or range of motion \n\nKathy L. Carrothers, AWCC No. 208579 \n \n14 \n \ntests when making physical or anatomical impairment ratings to the spine.” And see, 11 C.A.R. \nSection 25-129 (Code of AR Regulations, 2025 Lexis Repl.), former cited as Commission Rule \n099.34.  \nOf course, the Commission is required to weigh the medical evidence and to translate this \nmedical  evidence  into  an  appropriate  finding  regarding  permanent  impairment  using  the AMA \nGuides. Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (Ark. App. 2001). Consequently, \nthe Commission may assess its own impairment rating using the Guides rather than relying solely \non its determination of the validity of ratings assigned by physicians.   Id. \nAmong  the  other  criteria  governing the  assessment  and assignment  of  a permanent \nanatomical  impairment  rating, the  Commission must  be  determined  when  the  condition – \nparticularly when the condition is a soft tissue injury – becomes “permanent.” The AMA Guides \ndefine a “permanent impairment” as an “impairment that has become static or well stabilized with \nor without medical treatment and is not likely to remit despite medical treatment.” See AMA \nGuides, 4\nth\n Ed., page 315. Pursuant to the AMA Guides, 4\nth\n Ed., page 9: “An impairment should \nnot be considered ‘permanent’ until the clinical findings, determined during a period of months, \nindicate that the medical condition at issue is static and well stabilized.” \nFor all the same reasons cited above and in the “Statement of the Case”, I also find the \nclaimant has failed to prove she has sustained any percentage of permanent anatomical impairment \nas a result of the minor, June 7, 2022, work incident. Once again, it is significant to note that none \nof the claimant’s treating physicians as well as Dr. Pearce – and Arkansas orthopedic specialist \nwell known to this ALJ and the Commission – did not find the claimant sustained any percentage \n\nKathy L. Carrothers, AWCC No. H208579 \n \n \n \n15 \nof permanent anatomical impairment resulting from the minor June 7, 2022, work incident. I find \nDr. Pearce’s opinion stating and explaining that the degenerative condition as well as the objective \nmedical findings of the claimant’s right shoulder are not acute nor the result of any trauma, and \nthat she has not sustained any percentage of permanent anatomical impairment as a result of the \nminor  June  7,  2022,  work  incident  to  be  well  informed  and  highly  credible.  I  find  Texas \nChiropractor Hugghin’s opinion assigning  a  5%  permanent  anatomical  impairment  rating  to  be \nuninformed and   not   credible.   The   preponderance   of   the   medical   evidence   conclusively \ndemonstrates the claimant has failed to meet her burden of proof in demonstrating that the subject \nminor work injury is the “major cause” of any degree of impairment she may or may not have. See \nGoyne v. Crabtree Contr. Co., 2009 Ark. App. 200, 301 S.W.3d 16 (Ark. App. 2009), rehearing \ndenied, ___ Ark. App. ___ , ___ S.W.3d ___ , 2009 Ark. App. LEXIS 874 (Ark. App., April 22, \n2009).   \nTherefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction over this claim. \n2. The  stipulations  contained  in  the  amended  prehearing  filed  October  3, \n2025, which the parties affirmed on the record at the hearing, hereby are \naccepted as facts.  \n \n3. The claimant has failed to meet her burden of proof in demonstrating she \nis entitled to additional medical treatment in the form of the second MRI \nat issue herein and unspecified treatment by Dr. Gati.  \n \n4. The claimant has failed to meet her burden of proof in demonstrating she \nsustained any permanent anatomical impairment as a result of her “medical \nonly”, no-lost-time admittedly compensable right shoulder injury of June \n7, 2022.  \n\nKathy L. Carrothers, AWCC No. H208579 \n \n \n \n16 \n \n5. The claimant’s attorney is not entitled to a fee on these facts. \n  \n     Therefore,  for  all  the  aforementioned  reasons this  claim  is  denied  and  dismissed  with \nprejudice subject only to the parties’ statutory appeal rights.  \nIT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":29764,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208579 KATHY L. CARROTHERS, EMPLOYEE CLAIMANT SOUTHERN ARKANSAS UNIVERSITY, EMPLOYER RESPONDENT STATE OF ARKANSAS/PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 19, 2026 Hearing conducted on Friday, November 21, 20...","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:1","granted:2","denied:7"],"injuryKeywords":["shoulder","knee","rotator cuff"],"fetchedAt":"2026-05-19T22:32:13.319Z"},{"id":"alj-G106990-2026-02-17","awccNumber":"G106990","decisionDate":"2026-02-17","decisionYear":2026,"opinionType":"alj","claimantName":"Linda Michael","employerName":"Booneville School District","title":"MICHAEL VS. BOONEVILLE SCHOOL DISTRICT AWCC# G106990 February 17, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MICHAEL_LINDA_G106990_20260217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MICHAEL_LINDA_G106990_20260217.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G106990 \n \nLINDA MICHAEL, Employee CLAIMANT \n \nBOONEVILLE SCHOOL DISTRICT, Employer RESPONDENT NO. 1 \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n \n OPINION FILED FEBRUARY 17, 2026 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents No. 1 represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \nRespondent No. 2 represented by CHRISTY L. KING, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On November 20, 2025, the above captioned claim came on for a hearing at Fort Smith, \nArkansas.      A  pre-hearing  conference  was  conducted  on August  25,  2025,  and  a  Pre-hearing \nOrder  was  filed  on August  26,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on June 28, \n2011. \n 3. The  claimant  sustained  a  compensable  injury  to  her  low  back  on  or  about  June  28, \n2011. \n\nMichael – G106990 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $252.00  for  temporary  total  disability  benefits  and  $189.00  for  permanent  partial \ndisability benefits. \n 5. All prior opinions are final and the law of the case. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from February  28, \n2025, to August 19, 2025. \n 2. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“a.  The  Claimant  contends  that  subsequent  to  a  hearing  that  was \nheld in which the claimant contended entitlement to permanent and \ntotal   disability   there   has   been   a   material   worsening   in   the \nclaimant’s  condition  that  has  not  only  resulted  in  her  need  for \ntreatment but has also caused her to currently be unable to return to \nwork  in  any  capacity.  Specifically,  on  February  28,  2025,  Dr. \nRachel Fiori opined that the claimant is ‘currently unable to return \nto  work  in  any  capacity’.  Further  Dr.  Danny  Silver  opined  on \nMarch  7,  2025,  that  the  claimant  is  experiencing  a  new  disc \nherniation  at  the  L1-L2 level and that ‘Ms. Michael’s current L1-\nL2   disc   herniation   is   a   direct   result   of   her   prior   lumbar \nlaminectomy’. Finally a report from Dr. Miles Johnson indicates \nthat  on  July  14,  2025,  the  claimant  was  evaluated  and  that  knee \njerks and ankle jerks were both absent. The claimant contends that \nfindings  regarding  absent  knee  jerks  and  ankle  jerks  noted  by  Dr. \nJohnson, are objective findings, not within the claimant’s control, \nthat are indicative of a back injury and that those findings were not \npresent at the time of the prior hearing. \n \nb. The Claimant contends her attorney is entitled to an appropriate \nattorney’s fee.” \n \n Respondents No. 1 contentions are as follows: \n“Respondents  contend  that  all  appropriate  benefits  are  being  paid \nwith regard to Claimant’s compensable lower back injury sustained \non  6/28/11.  Claimant  is  not  entitled  to  additional  temporary  total \n\nMichael – G106990 \n \n-3- \ndisability benefits. Her condition is permanent, and she has already \ntried the issue of permanent total disability.” \n \n The  claimant  in  this  matter  is  a 54-year-old  female who  sustained  a  compensable  injury \nto her lumbar spine on June 28, 2011. The parties entered into an Agreed Order on September 2, \n2014, stipulating wage loss at 42% above the 14% permanent partial impairment rating. On June \n26,  2025,  the  Court  of  Appeals  affirmed  a  decision  that  the  claimant  was  not  permanently  and \ntotally disabled. The claimant is currently asking the Commission to determine if she is entitled \nto  temporary  total  disability  benefits  from  February  28,  2025,  to  August  19,  2025,  for  her  June \n28, 2011, compensable lumbar spine injury. \n On  February  28,  2025,  medical  director  Dr.  Rachel  Fiori  of  the  Center  for  Psychiatric \nWellness authored a letter “To Whom It May Concern.” Following is a portion of that letter: \n1.  Severity  of  Depression:  Linda  exhibits  symptoms  including \npersistent  sadness,  lack  of  motivation,  cognitive  impairments,  and \nsevere  fatigue,  which  interfere  with  daily  functioning  and  the \ncapacity to sustain employment. Linda’s depression worsened to \nthe  extent  that  she  developed  paranoid  delusions  and  psychotic \nfeatures. These psychotic symptoms have continued to progress in \nspite of treatment. \n \n2. Impact of Chronic Pain: The ongoing pain from the back injury \ncontributes  to  the  severity  of  the  depression,  creating  a  cycle  that \nfurther  diminishes  Linda’s  ability  to  engage  in  work-related \nactivities. \n \n3.  Functional  Limitations:  Linda  is  unable  to  sit  or  stand  for \nextended  periods,  perform  physical  tasks,  or  manage  the  mental \ndemands of their position due to the combined effects of the back \ninjury and depression. \n \n4.   Treatment    History:   Linda   has   diligently   adhered   to   a \ncomprehensive  treatment  plan,  including  medication  adjustments, \nphysicals  therapy,  and  counseling,  with  limited  improvement  in \nfunctional   capacity.   Linda   now   requires   medication   including \nantipsychotic   medication   and   anti-anxiety   medication.   These \n\nMichael – G106990 \n \n-4- \nmedically  necessary  treatments  produce  side   effects  including \nsedation that further limit Linda’s functional capacity. \n \n On  October  9,  2025,  Dr.  Luke  Knox  saw  the  claimant  at  the  respondents’  request. \nFollowing is a portion of that medical record: \nHPI \nLinda Michael is a 53 y.o. female who presents to follow up after \nnew   imaging   performed.   Patient   comes   in   with   multitude   of \ncomplaints of bilateral leg pain her feet drawl up she has cramping \nat night lower extremity discomfort etc. She comes in to review the \nMRI scan that we reviewed together today in clinic. She was found \nto have an L1-2 disc herniation on the right side with a significant \nL2-3  disc  bulge  centrally.  The  axial  views  actually  do  not  look  as \nif they cause significant compression of the thecal sac. She appears \nto have a well-healed fusion L3-L4 and L5-S1. \n \nPast Medical History: \nShe has a past medical history of Anemia, Chronic kidney disease, \nDeep vein thrombosis (CMS/HCC), Hyperlipidemia, \nHypertension, Low back pain, and Memory loss of. \n \n*** \nAssessment & Plan \n1. Lumbar spondylosis (Primary) \n2. S/P spinal fusion \n3. Accident at workplace \n \nWe  discussed  in  detail  the  patient’s  condition,  symptoms,  and \nmanagement.  We  discussed  post-op  care,  expected  length  of  stay, \nand  goals  to  transition  home  versus  the  need  for  in-patient  rehab. \nPatient verbalized home environment supports a safe and effective \nrecovery.   We   discussed   the   use   of   Autograft,   Allograft,   and \nplanned  spinal  instruments.  Patient  verbalized  understanding  and \nwas able to repeat back key information of planned procedure and \nlevels  of  spinal  surgery.  Shared  decision  making  was  utilized \nduring  the  discussion  with  the  patient,  family  members,  and/or \ncaregiver concerning care, treatment, and services. \n \nWeight  Loss  Counseling:  We  discussed  the  increased  BMI  is \nassociated  with  higher  risk  of  surgical  complications  as  well  as \nfailed   back   surgery.   Discussed   options   including   increased \nphysical  activity,  portion  control,  dietician  referral,  prescription \nand  surgical  weight  loss  tools  that  are  available.  We  discussed \n\nMichael – G106990 \n \n-5- \nfollow  up  with  primary  care  physician  to  further  discuss  these \noptions or referral was offered. \n \nPatient  comes  in  with  exacerbation  and  progression  of  multiple \nmultiple   complaints   of   her   chronic   illness.   I   independently \ninterpreted  her  MRI  scan  demonstrating  well-healed  fusion  from \nL3-S1 with significant disc herniation L1-2 on the right as well as \na   central   disc   bulge   at   L2-3.   Axial   views   at   L2-3   did   not \ndemonstrate significant compressive pathology. And the L1-2 level \ndemonstrated mild compression on the right. I do not believe they \nare  bad  enough  to  warrant  surgical  intervention.  They  were  quite \ninterested in consideration of surgical stabilization. I assured them \nthat  surgery  would  not  afford  any  benefits  to  her  continuing \ncomplaints  as  I  believe  a  major  component  of  her  complaints  are \ndue to her weight and not the findings on MRI scan. We had a long \ndiscussion  concerning  the  need  to  get  down  on  her  weight.  We \nmade  a  decision  regarding  elective  major  surgery  as  I  would \nstrongly  discouraged  this  due  to  the  extensive  risks  due  to  her \nmorbid  obesity.  I  also  discussed  her  care  and  management  with \nanother  qualified  health  healthcare  person  specifically  her  nurse \ncase  manager.  And  informed  her  of  the  above  decisions.  She  has \nreached    that    point    of    maximum    medical    improvement.    I \nrecommend  that  she  close  out  her  work  comp  case  as  there  is \nabsolutely    nothing    to    offer    her    from    the    standpoint    of \nneurosurgical stabilization and/or decompression. \n \n On October 21, 2025, Dr. Silver wrote a letter in response to Dr. Knox’s October 9, 2025, \nreport. Following is a portion of Dr. Silver’s response: \nI have reviewed Dr. Knox’s October 9, 2025 report regarding Ms. \nLinda Michael. \n \nMs.  Michael  has  bene  under  my  care  for  more  than  ten  years. \nDuring   that   time,   she   has   completed   every   treatment   and \nrehabilitation measure authorized through workers’ compensation, \nincluding but not limited to the following: \n \n* multiple lumbar surgeries (x3) \n* wound care with wound vacuum therapy \n* lumbar epidural steroid injections, trigger point injections \n* hydrotherapy \n* physical and occupational therapy \n* dietary and mental health counseling \n* bariatric surgery resulting in over 100 pounds of weight loss \n\nMichael – G106990 \n \n-6- \n \nShe has also participated in numerous medication adjustments and \nhas remained fully complaint with all treatment recommendations. \n \nOn   her   October   9,   2025   office   visit,   documentation   clearly \nindicates  that  Ms.  Michael  continues  to  have  ongoing  spinal \npathology,  including  disc  herniation  and  disc  protrusion  with \ncompression on the thecal sac. These findings are located adjacent \nto  her  surgically  corrected  levels  at  L3-L4  and  L4-L5  and  are \nconsistent  with  expected  post-surgical  biomechanical  stress   at \nadjacent segments. This pathology and symptomology are a direct \nconsequence  of  the  surgery  necessitated  by  her  original  work-\nrelated injury. Other than being a workers’ compensation case, her \nclinical presentation and objective findings are comparable to other \nchronic   patients   in   my   practice   who   have   not   yet   reached \nmaximum medical benefit. \n \nMs.  Michael  may  have  reached  maximum  surgical  benefit,  as \nfurther   operative   intervention   is   not   indicated   at   this   time. \nHowever, she has not reached maximum medical improvement, as \nshe continues to experience chronic, function-limiting pain related \nto her injury and adjacent level disease. She requires ongoing pain \nand medical management, as well as continued support to maintain \nweight  loss  and  conditioning  activities.  She  is  being  referred  for \naquatic  therapy,  which  should  improve  her  pain  and  mobility \nthrough  low-impact  exercise,  promote  further  weight  reduction, \nand enhance range of motion and function. \n \nDefinition:  Maximum  Medical  Improvement  (MMI),  sometimes \nreferred  to  as  maximum  medical  benefit,  is  the  point  at  which  a \npatient’s  condition  has  stabilized  and  is  unlikely  to  improve \nsubstantially  with  further  medical  treatment.  Reaching  MMI  does \nnot  mean  that  the  patient  is  fully  recovered  or  pain-free;  rather,  it \nsignifies  that  the  individual  has  reached  a  plateau  in  recovery \ndespite appropriate and comprehensive care. \n \nGiven  Ms.  Michael’s  persistent  symptoms,  objective  imaging \nfindings,  and  ongoing  need  for  non-surgical  treatment,  it  is  my \nmedical   opinion   that   she   has   not   reached   maximum   medical \nbenefit.     Continued     multidisciplinary     management     remains \nmedically necessary. \n \nOn March 7, 2025, Dr. Danny Silver authored a letter “To Whom It May Concern” \nregarding the claimant as follows: \n\nMichael – G106990 \n \n-7- \nI   am   writing   this   letter   regarding   Ms.   Linda   Michael,   who \npreviously  underwent  lumbar  spine  surgery  following  a  work-\nrelated  injury.  As  you  are  aware,  Ms.  Michael  sustained  an  injury \nat  work  that  necessitated  surgical  intervention  in  the  form  of  a \nlumbar laminectomy. \n \nMs. Michael is now experiencing a new disc herniation at the L1-\nL2  level,  which  is  producing  an  impression  upon  the  thecal  sac \nwith  superior  extrusion  of  disc  material.  This  development  is \nconsistent with a known medical condition referred to as “adjacent \nsegment  degeneration.”  This  condition  occurs  when  the \nintervertebral  discs  adjacent  to  a  previously  fused  or  surgically \ntreated  segment   are  subjected  to  increased  mechanical  stress, \nleading to degeneration and potential herniation. The fusion at the \nsurgical  site  restricts  movement,  causing  the  adjacent  discs  to \ncompensate  for  the  lost  mobility,  which  in  turn  accelerates  wear \nand tear. \n \nWith  a  high  degree  of  medical  certainty,  I  conclude  that  Ms. \nMichael’s current L1-L2  disc  herniation  is  a  direct  result  of  her \nprior  lumbar  laminectomy.  Given  the  nature  of  this  condition  and \nits well-documented occurrence following lumbar spine surgery, it \nis my medical opinion that this new injury is a direct consequence \nof   the   initial   work-related   injury   and   subsequent   surgical \nintervention. \n \n On August 12, 2025, the respondents sent Dr. Fiori a letter regarding the permanency of \nthe claimant’s condition. Following is a portion of the respondent’s letter to Dr. Fiori: \nI  am  in  receipt  of  your  correspondence  dated  2/25/25  concerning \nyour comprehensive overview of your treatment of Ms. Michael. I \nam handling her workers compensation claim and ant to make sure \nall  appropriate  benefits  are  being  paid.  You  have  opined  that  you \nbelieve  that  her  physical  and  psychological  conditions  warrant  a \nperiod of “total disability.” \n \nDo  you  feel  this  is  likely  a  permanent  situation:  Put  another  way, \ndo  you  think  she  is  only  temporarily  unable  to  work  and  will  one \nday be able to do so again? \n \nFor  your  convenience,  I  have  provided  a  space  below  for  you  to \ncheck accordingly. \n \n____ Permanent Situation \n\nMichael – G106990 \n \n-8- \n \n____ Temporary Situation \n \nOn August 19, 2025, Dr. Fiori responded to the respondent’s letter by placing a “X” in front of \n“Permanent  Situation”  and  handwriting  the  following  response  indicating  the  claimant’s \ncondition had become permanent: \nThis has been going on for years and her condition has worsened in \nspite  of  her  active  participation  in  care.  Her  pain  and  mental \nanguish have greatly impaired her functioning and destroys quality \nof life. We are working toward very simple goals and activities of \ndaily living and I foresee no situation in which she returns to work. \n \nIn order to be  entitled to temporary total disability benefits, the claimant  has the burden \nof proving by a preponderance of the evidence that he remains within his healing period and that \nhe suffers a total incapacity to earn wages as a result of his compensable injury. Arkansas State \nHighway  &  Transportation  Department  v.  Breshears, 272  Ark.  244,  613  S.W.  2d  392  (1981).\n The  claimant  reentered  her  healing  period  on  March  7,  2025,  when  Dr.  Silver  indicated \nthe claimant “is now experiencing a new disc herniation at the L1-L2 level.” Dr. Silver when on \nto say that “with a high degree of medical certainty, I conclude that Ms. Michael’s current L1-L2 \ndisc herniation is a direct result of her prior lumbar laminectomy.” \n Dr.  Fiori  had  declared  the  claimant  was  at  a  total  disability  status  as  of  February  28, \n2025.  However,  her  entitlement  to  temporary  total  disability  benefits  would  begin  on  March  7, \n2025, when the claimant reentered her healing period and was totally disabled. \n That period of temporary total disability ends at the time Dr. Fiori determined on August \n19, 2025, that the  claimant’s condition had become permanent in nature thus removing her \ndisability temporary status. \n\nMichael – G106990 \n \n-9- \n The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \ntemporary total disability benefits from March 7, 2025, to August 19, 2025. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  25,  2025,  and  contained  in  a  Pre-hearing  Order  filed August  26,  2025,  are  hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \ntemporary total disability benefits from March 7, 2025, to August 19, 2025. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  her  attorney  is \nentitled to an attorney fee. \n ORDER \nThe respondents shall pay for the  claimant’s temporary total disability benefits from \nMarch 7, 2025, to August 19, 2025, at the stipulated rate of $252.00 per week. \nThe respondents shall pay to the claimant's attorney the maximum statutory attorney's fee \non the benefits awarded herein, with one half of said attorney's fee to be paid by the respondents \nin addition to such benefits and one half of said attorney's fee to be withheld by the respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n\nMichael – G106990 \n \n-10- \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":19855,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G106990 LINDA MICHAEL, Employee CLAIMANT BOONEVILLE SCHOOL DISTRICT, Employer RESPONDENT NO. 1 ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED FEBRUARY 17, 2026 Hearing before...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["back","lumbar","knee","ankle"],"fetchedAt":"2026-05-19T22:32:09.108Z"},{"id":"alj-H406456-2026-02-12","awccNumber":"H406456","decisionDate":"2026-02-12","decisionYear":2026,"opinionType":"alj","claimantName":"Parades Santmaria","employerName":"Walmart Associates, Inc","title":"PAREDES VS. WALMART ASSOCIATES, INC. AWCC# H406456 February 12, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SANTMARIA_PARADES_REGINA_H406456-20260212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SANTMARIA_PARADES_REGINA_H406456-20260212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H406456 \n \nREGINA SANTAMARIA PAREDES, Employee CLAIMANT \n \nWALMART ASSOCIATES, INC., Employer RESPONDENT \n \nWALMART CLAIMS SERVICES, Carrier RESPONDENT \n \n \n \n OPINION FILED FEBRUARY 12, 2026 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by JAMES A. ARNOLD II, Attorney at Law, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n \n On November 18, 2025, the above captioned claim came on for a hearing at Springdale, \nArkansas.   A pre-hearing conference was conducted on September 22, 2025, and a Pre-hearing \nOrder  was  filed  on September  23,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  May \n24, 2024. \n 3. The  claimant  sustained  a  compensable  injury  to  her  right  wrist  on  or  about  May  24, \n2024. The respondents have controverted all other alleged injuries. \n 4. The claimant’s weekly compensation rates will be determined at a later date. \n\nSantamaria Paredes – H406456 \n \n-2- \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to her right hip on or about May 24, \n2024. \n 2. Whether Claimant is entitled to medical treatment for her right hip injury. \n 3. Whether Claimant sustained a compensable consequence of her right wrist injury in the \nform of a left shoulder injury. \n 4. Whether Claimant is entitled to medical treatment for her left shoulder injury. \n The claimant's contentions are as follows: \n“Claimant  contends  she  sustained  a  compensable  consequence \ninjury  to  her  left  shoulder  and  right  hip  and  is  entitled  to  medical \ntreatment  and  to  temporary  total  disability  benefits  from  her  date \nlast  worked  to  a  date  yet  to  be  determined.  Claimant  reserves  all \nother issues.” \n \n The respondents’ contentions are as follows: \n“Respondents     contend     that     they     have     paid     appropriate \ncompensation benefits and further controvert Claimant’s alleged \nleft shoulder injury and alleged right hip injury in their entirety.” \n \n The  claimant  in  this  matter  is  a 54-year-old  female who  sustained  a compensable injury \nto her right wrist on or about May 24, 2024. The claimant also alleges to have sustained an injury \nto  her  right  hip  in  that  same  May  24,  2024,  incident.  The  claimant  further  alleges  that  she \nsustained  a  compensable  consequence  of  her  right  wrist  injury  in  the  form  of  a  left  shoulder \ninjury.  The  claimant  gave  direct  examination  testimony  about  her  May  24,  2024,  incident  as \nfollows: \nQ And what happened on May 24\nth\n of last year? \n \nA So that 24\nth\n, I remember that there was a connection of the \nhose that the guys the night before, they had connected. \n \n\nSantamaria Paredes – H406456 \n \n-3- \n So  that  day  we  changed  the  oil  and  we  needed  to  change \nthe filter that goes inside of the oil. And since the hose that there is \nto wash the dishes, it didn’t have enough power, so I used the hose \nthat had more pressure to clean the filter. \n \n And  so  the  water  with  the  soak  started  coming  out  and  in \njust  a  few  seconds  everything  was  full  of  water.  And  so  that  is \nwhen  I  shut  it  off  and  I  slid  on  the  right  side  and  after  that,  since \nthen, my life has changed. \n \nQ So  when  you  slid  on  the  right  side,  did  you  fall  to  the \nground? \n \nA Exactly. I fell to the ground. It was a very hard fall. When I \nfell down, Reynalda, a co-worker – \n \nQ Wait. I would like to ask you something different. \n \n So when you fell down, how did you land? \n \nA On  this  side  (indicating).  It  was  like  this.  It  was  on  this \nside. It was something so strong on my hip on this side. \n \n THE  COURT:  I  will  note  for  the  record  the  Claimant  is \nindicating the right side of her body. \n \n THE  WITNESS:  Yes,  my  right  side.  It  was  on  the  right \nside where I hit. It was my arm. It was the three things. It was my \narm  and  right  here  (indicating),  but  it  was  very  hard.  It  was  my \nright hand, my right shoulder, and my right hip is where the blow \nhappened. \n \nQ [BY MS. BROOKS]: Okay. So did someone see you fall? \n \nA Yes. Reynalda. \n \nQ And did you file a report about the injury? \n \nA I let my boss J. know that I had fallen down. He told me to \nlet Angelica know. And I told her when she came back to the deli, \nbut I kept working because she told me to keep working. \n \n And then at the end, so I worked through the pain, with the \npain. I took Tylenol and when I finished my day, they told me to – \nthey took me to see somebody. \n\nSantamaria Paredes – H406456 \n \n-4- \n \n The  claimant  is  first  seen  by Nurse Practitioner  Bobby  Komers  on  May  24,  2024. \nFollowing is a portion of that medical record: \nPATIENT DESCRIPTION OF ACCIDENT \nPatient  states  that  she  was  moving  the  hose  to  clean  a  filter  and \nwater  leaked  out  at  the  connection.  She  states  she  slipped  and  fell \nonto her right hip and put her right arm to catch herself. She states \nshe is having right hip, right wrist, right shoulder and neck pain. \n \nCHIEF COMPLAINT \nFall injury. \n \nHISTORY OF PRESENT ILLNESS \nRegina’s  primary  problem  is  pain  located  in  the  right  hip.  She \ndescribes  it  as  aching.  She  considers  it  to  be  moderate.  The \nproblem  began  on  5/24/2024.  Regina  says  that  it  seems  to  be \nvariable – depending  on  the  activity  level.  She  feels  it  is  stable. \nRegina’s secondary problem is pain located in the right arm, wrist, \nshoulder.  She  describes  it  as  aching.  She  considers  it  to  be \nmoderate.  The  problem  began  on  5/24/2024.  Regina  says  that  it \nseems to be variable – depending on the activity level. She feels it \nis stable. \nRegina’s tertiary problem is pain located in the neck. She describes \nit  as  aching.  She  considers  it  to  be  moderate.  The  problem  began \non  5/24/2024.  Regina  says  that  it  seems  to  be  intermittent.  She \nfeels it is stable. \n \n*** \nDIAGNOSIS \n1. Right Hip Pain (M25.551). \n2. Pain in right shoulder (M25.511). \n3. Pain in right wrist (M25.531) \n4. Cervicalgia (M54.2). \n \n*** \nTREATMENT PLAN \nHeat/Ice.  OTC  Tylenol  since  patient  reports  she  is  unable  to  take \nIbuprofen. Wear wrist splint as tolerated. \n \n*** \nRECOMMENDED WORK STATUS \nRegina’s recommended work status is Restricted Duty. \n \n\nSantamaria Paredes – H406456 \n \n-5- \nRECOMMENDED ACTIVITY RESTRICTIONS \nNo  overhead  work  right  arm,  No  push/pull/lift  more  than  5  lbs. \nwith the right arm. \n \n On  May  31,  2024,  the  claimant  is  seen  by  APRN  Dominque  Carver.  Following  is  a \nportion of that medical record: \nPATIENT STATEMENT ON CURRENT VISIT \nRecheck Statement: Patient states that her right hip, right wrist and \nneck have not improved. \n \n*** \nHISTORY OF PRESENT ILLNESS \nRegina’s  primary  problem  is  pain  located  in  the  neck.  She \ndescribes  it  as  aching.  She  considers  it  to  be  moderate.  The \nproblem  began  on  5/24/2024.  Regina  says  that  it  seems  to  be \nvariable – depending  on  the  activity  level.  She  feels  it  is  not \nimproving. Regina’s secondary problem is pain located in the right \nhip.  She  describes  it  as  aching.  She  considers  it  to  be  moderate. \nThe  problem  began  on  5/24/2024.  Regina  says  that  it  seems  to  be \nvariable – depending  on  the  activity  level.  She  feels  it  is  not \nimproving. Regina’s tertiary problem is pain located in the right \nwrist, right shoulder. She describes it as aching. She considers it to \nbe moderate. The problem began on 5/24/2024. Regina says that it \nseems to be variable – depending on the activity level. She feels it \nis not improving. \n \n*** \nDIAGNOSIS \n1. Right Hip Pain (M25.551). \n2. Pain in right shoulder (M25.211).  \n3. Pain in right wrist (M25.531). \n4. Cervicalgia (M54.2). \n \nASSESSMENT \nNumber  and  Complexity  of  Problems  Addressed:  2  or  more  self-\nlimited or minor problems. \n \nTREATMENT PLAN \nRecommend  OTC  pain  relievers,  heat,  ice  and  topical  muscle \nointment. She was given an opportunity to ask questions about her \ncare.   She   verbalized   understanding.   She   was   given   a   steroid \ninjection today. She will start physical therapy for this problem. \n \n\nSantamaria Paredes – H406456 \n \n-6- \n*** \nRECOMMENDED WORK RESTRICTIONS \nNo push/pull/lift more than 5 lbs. with the right arm. No overhead \nwork right arm. Avoid hanging chicken or slicing deli meats. \n \n On  October  3,  2024,  the  claimant  was  seen  by Nurse Practitioner  M.  Daniel  at  Mercy \nClinic Primary Care in Centerton, Arkansas. Following is a portion of that medical record: \nChief Complaint \nPatient presents with \n* Shoulder pain \nLeft shoulder x 1 month \n \nHistory of Present Illness \nThe patient presents for evaluation of left shoulder pain. \n \nShe  experienced  a  fall  on  a  concrete  floor  at  her  workplace, \nWalmart,  on  05/24/2024,  which  resulted  in  an  injury  to  her  right \nshoulder.   Following   the   incident,   she   was   placed   on   work \nrestrictions,  limiting  her  from  pushing,  pulling,  lifting  over  her \nhead,  or  lifting  more  than  10  pounds.  She  has  been  using  her  left \nside more due to discomfort on her right side. \n \nAfter two days of performing tasks such as sweeping the floor, she \nbegan  to  experience  severe  pain  in  her  left  shoulder,  which  has \nnow spread to her entire back. The pain is so intense that it disrupts \nher sleep. She describes the pain as a sharp, pulling sensation. She \nhas been applying Voltaren gel for some relief. \n \nShe was prescribed exercises by a doctor at Walmart, but they have \nnot  alleviated  her  pain.  Despite  being  told  that  her  left  shoulder \nissue  is  unrelated  to  her  accident,  she  believes  otherwise.  She  is \ncurrently undergoing physical therapy at Bentonville, but it has not \nbeen  effective.  She  was  given  muscle  relaxants  after  the  accident, \nwhich provided some relief. She is seeking further treatment as she \nis unable to bear the pain any longer. \n \nThe  claimant  underwent  an  x-ray  of  the  left  shoulder  at  that  time  which  gave  an  impression  of \n“no acute osseous abnormalities of the left shoulder.” \n On  November  6,  2024,  the  claimant  was  seen  by  Dr.  J.  Hall  at  Mercy  Clinic  Primary \nCare, Centerton. Following is a portion of that medical record: \n\nSantamaria Paredes – H406456 \n \n-7- \nHistory of Present Illness \nThe  patient  is  a  53-year-old  female  here  for  evaluation  of  left \nshoulder pain. \n \nShe experienced an accident at Walmart on 05/24/2024, where she \nslipped  on  a  wet  floor  and  injured  her  right  shoulder.  Despite  the \ninitial   injury   being   to   her   right   shoulder,   she   is   currently \nexperiencing  pain  in  her  left  shoulder.  She  has  been  undergoing \nphysical   therapy   for   her   left   shoulder,   but   reports   minimal \nimprovement.  She  has  expressed  interest  in  receiving  an  injection \nfor her shoulder pain. \n \n*** \nAssessment & Plan \nLeft rotator cuff tendinopathy \nThe  left  shoulder  pain  is  likely  due  to  rotator  cuff  tendinopathy, \npossibly   exacerbated   by   increased   use   of   the   left   shoulder \nfollowing  an  injury  to  the  right  shoulder.  An  ultrasound  guided \nsubacromial   steroid   injection   will   be   administered   today   to \nalleviate  the  pain.  See  procedure  notes  for  more  details.  She  is \nadvised  to  continue  with  her  physical  therapy  regimen.  If  there  is \nno  improvement  in  her  condition,  an  MRI  of  the  shoulder  will  be \nconsidered. \n \nAt  that  time  the  claimant  underwent  ultrasound  guided  corticosteroid  injection  of  the  left \nsubacromial bursa. \n On  February  25,  2025,  the  claimant  is  again  seen  at  Mercy  Clinic  Primary  Care. \nFollowing is a portion of that medical record: \nHistory of Present Illness \nThe patient is a 53-year-old female who presents today to discuss a \npotential  MRI.  She  has  low  back  pain,  left-sided  shoulder  pain \nsince September, and right-sided hip pain. \n \nShe reports experiencing severe left-sided shoulder pain, which she \nattributes  to  overexertion  during  a  two-day  floor  cleaning  task  at \nher workplace. Despite being advised by a physician at Walmart to \navoid using her  right hand due to a previous fall, she continues to \nperform  her  daily  duties  without  any  modifications.  The  pain  has \nprogressively  worsened,  even  with  physical  therapy,  and  now \ndisrupts  her  sleep.  She  has  not  consulted  an  orthopedic  specialist \nfor  this  issue.  An  x-ray  of  her  shoulder  was  previously  obtained \n\nSantamaria Paredes – H406456 \n \n-8- \nand   was   normal.   She   has   been   diagnosed   with   a   permanent \nrestriction by the physician at Walmart, but her  work assignments \nremain unchanged. A steroid injection administered by Dr. Hall in \nNovember    provided    temporary    relief.    She    was    prescribed \ndiclofenac  by  Dr.  Hall  but  discontinued  it  due  to  adverse  effects. \nShe has found some relief with a topical cream  but has run out of \nit. \n \nShe  also  reports  a  sensation  of  a  knot  in  her  right  hip  when  she \nmoves her leg in a certain way. She has not received any treatment \nfor this symptom. \n \n*** \nAssessment & Plan \n1. Left sided Shoulder Pain \nThe etiology of the pain is likely attributable to a rotator cuff issue. \nShe  reports  that  physical  therapy  has  not  been  effective,  and  the \npain  persists  despite  a  previous  steroid  injection.  A  referral  to  an \northopedic  specialist  will  be  initiated  for  further  evaluation  and \npotential  imaging  studies,  such  as  an  MRI.  A  prescription  for \nVoltaren gel will be provided to manage the pain. \n \n2. Right-sided hip pain \nThe  pain  appears  to  be  localized  to  the  bursa,  suggesting  possible \nbursitis.  Physical  therapy  will  be  recommended  to  address  this \nissue.  A  prescription  for  Voltaren  gel  will  be  provided  to  manage \nthe pain. \n \n The  claimant  underwent  an  MRI of  the  left  shoulder  at  Mercy  Clinic  Bentonville  on \nMarch 21, 2025. Following are Dr. Dominic Jacobelli’s impressions from that diagnostic testing: \nIMPRESSION \n1.  Mild  rotator  cuff  tendinosis.  No  full-thickness  or  high-grade \npartial-thickness tendon tear. \n2. Mild subacromial subdeltoid bursitis. \n \n On June 24, 2025, the claimant is seen via a video visit with Mercy Clinic Primary Care, \nCenterton. The claimant’s medical record from that video visit, in part, states: \nHistory of Present Illness \nThe patient presents for evaluation of right shoulder pain and right \nhip pain. \n \n\nSantamaria Paredes – H406456 \n \n-9- \nShe is currently undergoing physical therapy for her right shoulder, \nwhich she reports as being painful. She is seeking a return-to-work \nnote  from  her  primary  care  physician,  with  the  understanding  that \nher  employer  will  assess  her  capabilities  and  limitations.  Her  job \ninvolves  lifting,  bending,  and  standing,  including  handling  45-\npound  boxes  of  chicken.  She  was  initially  scheduled  to  return  to \nwork  on  07/07/2025,  but  due  to  persistent  pain,  she  is  requesting \nan  extension  of  her  leave.  She  is  unable  to  lift  20  pounds  during \nher  therapy  sessions.  She  is  attending  physical  therapy  twice  a \nweek and has been advised by her therapist to allow more time for \nrecovery. She first consulted Dr. Elliott for this issue in 02/2025. \n \nAdditionally,   she   experiences   pain   in   her   right   hip   when \nperforming certain movements. She is considering an MRI scan to \nfurther  investigate  the  cause  of  her  hip  pain.  She  has  previously \nundergone  physical  therapy  for  this  issue  and  recalls  having  an  x-\nray of her hip, which did not reveal any fractures. \n \n On  July  23,  2025,  the  claimant  underwent  an  MRI  of  the  right  hip.  Following  are  DO \nTanner Nichols’ impressions of that diagnostic testing: \nIMPRESSION: \n1. Complex labral tearing. \n2. Joint effusion with abnormal internal signal intensity which may \nrepresent displaced labral fragments and/or synovial thickening. \n3. Small anterior synovial cyst. \n4. Mild diffuse degenerative change. \n \n It is the claimant’s burden to prove by a preponderance of the evidence that she sustained \na compensable right hip injury in the same incident on May 24, 2024, in which she sustained  a \ncompensable right wrist injury.  \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \n\nSantamaria Paredes – H406456 \n \n-10- \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n I  acknowledge  that  the  claimant  did  report  pain  in  her  right  hip  immediately  after  the \nincident  while  at  Conservative  Care  Occupational  Health.  At  that  same  time  the  claimant  also \nreported pain to her right wrist, right shoulder, and neck pain. The claimant does report right hip \nproblems for a period of time after her initial injury, but significant stretches of the claimant’s \nmedical records do not reflect right hip pain or difficulties.  \n Her  right  hip  MRI,  performed  on  July  23,  2025,  reveals  complex  labral  tearing,  joint \neffusion with abnormal internal signal intensity which may represent displaced labral fragments \nand/or synovial thickening, a small anterior synovial cyst and mild effused degenerative changes. \nHowever, prior to her May 24, 2024, incident the claimant underwent a CT of the abdomen and \npelvis without contrast on April 29, 2024. That diagnostic testing was done due to flank pain and \nsuspected  stone  disease  but  also  revealed  an  “asymmetric  right  hip  joint  effusion.  Mild \ndegenerative changes of the spine, hips and SI joints.” The claimant had another CT of the \nabdomen and pelvis without contrast on July 2, 2024, again for urological problems. I note this \nCT scan was after the claimant’s alleged right hip injury and the report, in part, states, “right hip \njoint effusion is present similar to the previous exam.” I note that the record is referring to the \nclaimant’s April 29, 2024, CT scan.  \n I do believe the claimant had pain on the right side of her body after she fell on May 24, \n2024.  However,  the  derangement  in  her  right hip MRI  dated  July  23,  2025,  is  already  present \nbefore her fall in her April 29, 2024, CT scan and similar derangement is present in her July 2, \n2024,  CT  scan  after  her  fall.  The  claimant  is  unable  to  prove  that  she  sustained  a  compensable \ninjury to her right hip on or about May 24, 2024.  \n\nSantamaria Paredes – H406456 \n \n-11- \n The claimant has asked the Commission to determine if she sustained a compensable left \nshoulder injury as a compensable consequence of her compensable right wrist injury.  \n If an injury is compensable, every natural consequence of that injury is likewise \ncompensable. Air Compressor Equipment Co. v Sword, 69 Ark. App. 162, 11 S.W. 3d 1 (2000). \nThe test is whether a causal connection exists between the two episodes. Sword, supra. \n When the primary injury is shown to have arisen out of and in the course of employment, \nevery natural consequence that flows from the injury is compensable unless it is the result of an \nindependent  intervening  cause.    The  basic  test  is  whether  there  is  a  causal  connection  between \nthe two conditions.  Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998), \nBearden Lumber Company v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983). \n On  direct  examination  the  claimant  testified  about  her  left  shoulder  problems  that  she \nbelieves  exists  due  to  her continued  work  for  the  respondent  under  work  restrictions  which \ncaused her an inability to use her right wrist due to her compensable right wrist injury as follows: \nQ Now, at some point after your fall in May of 2024, did your \nleft shoulder begin to bother you? \n \nA Yes, because I was not able to use my right wrist. Yes, and \nI had to be using my left hand. \n \nQ Okay. When is the first time you remember noticing pain in \nyour left shoulder? \n \nA I  will  never  forget  it.  It  was  in  September.  It  was  at  the \nbeginning of September. \n \nQ And what happened? \n \nA My boss, Angelica, knew that I had restrictions, so they put \nme  washing  the  floor  in  front  of  the  deli.  Then  I  think  that  had \nnever  been  cleaned  before  because  I  used  a  spatula  to  take  the \nblack  stuff  from  each  brick.  That  black  thing,  the  greasy  thing. \nAnd, yes, that was very painful. \n\nSantamaria Paredes – H406456 \n \n-12- \n \n And then from there, the following day, Mr. J., that is – \n \n THE INTERPRETER: May the interpreter clarify? \n \n THE WITNESS: Mr. J., that is the coach that we have there \nat  the  store,  Mr.  J.  told  me  that  I  had  to  continue  doing  that  the \nfollowing  day  because  Mr.  Brian,  the  store  manager,  had  said  it \nwas not clean. \n \n And I said, “But it is clean.” \n \n And he told me, “No. He said that it was dirty.” \n \n So I continued doing that the following day. \n \nQ [BY MS. BROOKS]: So what kind of things did you use to \nclean the floor and the bricks, all of the utensils that you used? \n \nA I used soap. I used that spatula. I used a lot of napkins to be \ndrying up where I was cleaning up. And then at the end I used the \nbig mop to finish cleaning it. \n \nQ And were you doing this with both hands? \n \nA With my left arm because on the right arm – \n \n THE INTERPRETER: May the interpreter clarify? \n \n THE WITNESS: -- I had a brace that the doctor had put on \nmy right arm. \n \nQ [BY  MS.  BROOKS]:  So  on  Claimant’s  Nonmedical \nExhibit at Page 11, we have a picture. Is this a picture that you sent \nto me? \n \nA Yes. \n \nQ And is that you? \n \nA Yes. \n \nQ And is that part of the area that you were cleaning? \n \nA Yes. And I have a brush there, too. \n\nSantamaria Paredes – H406456 \n \n-13- \n \nQ Okay.  And  before  those  two  days  cleaning,  had  you  ever \nhad any problems with your left shoulder? \n \nA No. \n \nQ Did  you  report  the  problems  with  your  left  shoulder  to \nWalmart? \n \nA Yes,  but  they  told  me  the  accident  had  happened  only  on \nthe right side, not on the left side. \n \n The claimant’s MRI of her left shoulder on March 21, 2025, revealed “mild rotator cuff \ntendinosis.  No  full-thickness  or  high-grade  partial-thickness  tendon  tear  and  mild  subacromial \nsubdeltoid bursitis.” \n The claimant’s difficulties with her left shoulder are degenerative in nature and  not the \nresult  of  the  incident  in  which  she  alleges  in  her  direct  testimony  quoted  above.  It  is  far  more \nreasonable that the claimant’s degenerative difficulties of the left shoulder are a result of use \nover  a  long  period  of  time  and  most reasonably longer  than  the  two-day  period  in  which  she \ntestified  they  began.  It  is  the  claimant’s  burden  to  prove  that  she  sustained  a  compensable \nconsequence  left  shoulder  injury  as  a  result  of  her  compensable  right  wrist  injury.  Here she  is \nunable to do so. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n \n \n \n\nSantamaria Paredes – H406456 \n \n-14- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nSeptember 22, 2025, and contained in a Pre-hearing Order filed September 23, 2025, are hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \na compensable injury to her right hip on or about May 24, 2024. \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment for her alleged right hip injury. \n 4. The claimant has failed to prove by a preponderance of the evidence that she sustained \nan  injury  to  her  left  shoulder  as  a  compensable  consequence  of  her  compensable  right  shoulder \ninjury. \n 5. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment for her alleged left shoulder injury. \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":26169,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H406456 REGINA SANTAMARIA PAREDES, Employee CLAIMANT WALMART ASSOCIATES, INC., Employer RESPONDENT WALMART CLAIMS SERVICES, Carrier RESPONDENT OPINION FILED FEBRUARY 12, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington Co...","outcome":"denied","outcomeKeywords":["denied:4"],"injuryKeywords":["wrist","hip","shoulder","back","neck","rotator cuff"],"fetchedAt":"2026-05-19T22:32:04.631Z"},{"id":"alj-H204558-2026-02-12","awccNumber":"H204558","decisionDate":"2026-02-12","decisionYear":2026,"opinionType":"alj","claimantName":"Vincent Walker","employerName":"Greenwood School Maintenance","title":"WALKER VS. GREENWOOD SCHOOL MAINTENANCE AWCC# H204558 February 12, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WALKER_VINCENT_H204558_20260212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALKER_VINCENT_H204558_20260212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H204558 \n \nVINCENT WALKER, Employee CLAIMANT \n \nGREENWOOD SCHOOL MAINTENANCE, Employer RESPONDENT \n  \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT \n \n OPINION FILED FEBRUARY 12, 2026  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented  by EDDIE  H.  WALKER,  Attorney, Fort  Smith,  Arkansas;  although  not \npresent at hearing. \n \nRespondent represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n OPINION \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn July  24,  2023, Eddie  Walker claimant’s  attorney,  filed a  Form AR-C  requesting \nvarious  compensation  benefits in  which the  claimant alleged an  injury  to  his head,  bilateral \nshoulders, and right thumb on or about June 16, 2022. A hearing was requested regarding issues \nwith medical treatment and entitlement to temporary total disability benefits. However, in lieu of \na hearing this administrative law judge issued two different Agreed Orders, on January 29, 2024, \nand February 13, 2024, which resolved all issues. No further action was taken in this claim. \nOn September  11,  2025,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim  be  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for January  15,  2026. \nNotice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on \nNovember 3, 2025. United States Postal Department records indicate that claimant received and \nsigned for the notice on November 6, 2025. \n\nWalker – H204558 \n2 \n \nMr. Walker indicated by letter dated January 6, 2026, that he would waive his appearance \nat the hearing  and further indicated that he had no objection to the Motion to Dismiss “without \nprejudice.”    \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution.  After my review of \nthe respondent’s Motion to Dismiss, Mr. Walker’s response  thereto he had  no  objection  to  the \nMotion  to  Dismiss  without  prejudice,  and  the  claimant’s  failure  to  appear  at  the  scheduled \nhearing,  as  well  as  all  other  matters  properly  before  the  Commission,  I  find  that  claimant  has \nfailed to prosecute this claim. Therefore, this claim is dismissed without prejudice.   \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2653,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H204558 VINCENT WALKER, Employee CLAIMANT GREENWOOD SCHOOL MAINTENANCE, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT OPINION FILED FEBRUARY 12, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Fort Smith, Sebastian Coun...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:32:06.955Z"},{"id":"alj-H406862-2026-02-11","awccNumber":"H406862","decisionDate":"2026-02-11","decisionYear":2026,"opinionType":"alj","claimantName":"Cody Stevens","employerName":"Snap On, Inc","title":"STEVENS VS. SNAP ON, INC. AWCC# H406862 February 11, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Stevens_Cody_H406862_20260211.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Stevens_Cody_H406862_20260211.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H406862 \n \nCODY STEVENS, EMPLOYEE   CLAIMANT \n \nSNAP ON, INC., EMPLOYER   RESPONDENT \n \nXL SPECIALTY INS., CARRIER/TPA  RESPONDENT \n \nGALLAGHER BASSETT SERVICES, INC., TPA  RESPONDENT \n \n \nOPINION FILED FEBRUARY 11, 2026 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on January 13,  2026,  in Little  Rock, \nPulaski County, Arkansas. \n \nClaimant was represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  full  hearing  was  held  on  this  claim  on January 13,  2026.  A  prehearing  telephone \nconference took place on October 21, 2025. A prehearing order was entered on the same day, and \nsubsequently entered into evidence as Commission Exhibit 1. The parties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim.   \n \n2. An employer/employee/carrier relationship existed on September 11, 2024, \nwhen Claimant allegedly sustained injuries to his left knee. \n \n3. Respondents have controverted the claim in its entirety. \n \nThe parties have identified the following issues to be adjudicated: \n\nSTEVENS H406862 \n \n2 \n \n1. Whether Claimant sustained a compensable injury\n1\n to his left knee as a result of a \nspecific incident on September 11, 2024\n2\n. \n \n2. Whether Claimant is entitled to reasonable and necessary medical treatment, mileage \nand benefits for his alleged injuries. \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant contends: \n \nThat he sustained compensable injuries to his left knee on September 11, 2024.  \nMedical expenses have been incurred, and further treatment is recommended.  This claim \nis entirely controverted. \nClaimant’s attorney respectfully requests that any attorney’s fee owed by \nClaimant on controverted benefits, paid by award or otherwise, be deducted from \nClaimant’s benefits and paid directly to Claimant’s attorney by separate check, and that \nany Commission Order direct the Respondents to make payment of attorney fees in this \nmanner.  \nRespondents contend: \n That the Claimant did not suffer a compensable injury on September 11, 2024.  \nRespondents contend that Claimant’s need for medical treatment, if any, is related to pre-existing \nor underlying problems and not an acute injury.  Respondents, lastly, contend that in the event \ncompensability is found, the medical documentation does not support entitlement to indemnity \nbenefits. \n \n \n1\n The original term was “injuries” and was amended to the term “injury” for clarity. \n2\n Claimant made a motion at the full hearing to amend issue one’s alleged injury date from September 11, \n2024, to August 14, 2024. The motion was denied, and the denial reasons will be addressed in this opinion. \n\nSTEVENS H406862 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary  record,  I  hereby  make  the  following  Findings  of  Fact  and  Conclusions  of  Law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. Claimant’s motion to amend Issue No. 1 is denied. \n \n4. The Claimant has failed to prove by the preponderance of the evidence that he sustained \na compensable left knee injury during the course and scope of employment by specific \nincident on September 11, 2024.  \n \n5. Based  on  my  finding  of  no  compensability,  the  remaining  issue  of  reasonable  and \nnecessary medical treatment is moot and will not be addressed in this opinion. \n \n \nCASE IN CHIEF \nPreliminary Ruling \n On January 6, 2026, I received an email with an attached letter from Claimant’s counsel \nstating that the date of injury was not September 11, 2024, but August 14, 2024. See Mr. Davis’s \nblue-backed January 6, 2026, email. Mr. Davis realized that the injury date was a mistake through \na conversation with his client, Mr. Cody Stevens. Id. The Respondents objected to the change of \nthe injury date, via email, on January 12, 2026. See Mr. Parrish’s blue-backed email dated January \n12, 2026. I made the parties aware that I would address this matter at the full hearing. \n During the hearing, Claimant’s counsel reiterated his position as to the date of injury \nactually being August 14, 2024, not September 11, 2024. He further argued that the medical records \nsubstantiate that the real date of injury was August 14, 2024. TR-5-6. Respondents objected to the \n\nSTEVENS H406862 \n \n4 \n \nchange of the injury date, arguing that it was unfair for Claimant to change the date one week \nbefore the hearing date. TR-7-8. \n My review of the Commission’s file show that a Form AR-N was filed on October 10, \n2024, and signed by Claimant purporting the alleged date of injury to have been September 11, \n2024. There is a Form AR-1 filed on October 18, 2024, that also shows the alleged injury date as \nbeing September 11, 2024. There is a Form AR-2 also filed on October 18, 2024, that states the \nalleged date of injury was September 11, 2024. There is a Form AR-C filed by Claimant’s counsel \non March 19, 2025, again purporting that the date of injury was September 11, 2024. Resp. Ex. 2, \np. 7. There was also a sworn deposition, taken by Respondents’ counsel, on June 12, 2025, where \nClaimant acknowledged that the date of injury was September 11, 2024. Resp. Ex. 2, pp. 4-6; TR-\n4, 13. Claimant’s counsel next filed an amended Form AR-C on January 6, 2026, a week before \nthe full hearing, purporting August 14, 2024, to have been the actual date of the alleged injury.  \nThere has been fifteen (15) months that has passed developing the events that occurred on \nSeptember 11, 2024, the purported injury date; nine (9) months had passed where Claimant’s \ncounsel was involved in the claim. As the Court of Appeals wrote in Sapp v. Tyson Foods, 2010 \nArk. App. 517, 2010 Ark. App. LEXIS 549, “elementary principles of fair play” apply in \nCommission  proceedings. As  the  Prehearing  Order  reflects,  the  parties  had  to  disclose  their \nwitnesses, and exchange exhibits no later than seven days before the hearing. The last-minute \nchange  of the  alleged  injury date  essentially  hamstrung Respondents,  preventing  them  from \nperhaps calling additional witnesses or offering exhibits to counter this new date. This scenario is \na perfect illustration of the violation of “elementary principles of fair play.” Thus, Claimant’s \nmotion to amend the allege injury date, this late in the proceedings, was thus denied from the \nbench. We now move to the full hearing. \n\nSTEVENS H406862 \n \n5 \n \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, medical records, consisting of twenty-five \n(25) pages; Respondent’s Exhibit 1, medicals records, consisting of eight (8) pages; Respondents \nExhibit 2, statements, pleadings, and video, consisting of nine (9) pages; Commission Exhibit 1, \nPre-Hearing Order Filed October 21, 2025, consisting of five (5) pages total. I have blue-backed \nForm AR-1, Form AR-2, Mr. Davis January 6, 2026, email with attachments, and Mr. Parrish’s \nJanuary 12, 2026, email with attachments. \nThe Claimant was employed as an assembler for the Respondent/Employer during the time \nof the alleged incident. The Claimant allegedly injured his left knee on September 11, 2024, while \nworking on a tire changer or a cabinet; the submitted evidence is unclear. See Resp. Ex. 2, pp. 2-\n3. Claimant did not put on any testimonial evidence whatsoever. Instead, Claimant, through his \ncounsel, stated that he had no evidence to prove that he sustained a compensable left knee injury \non September 11, 2024. TR-6, 8-9, 12, 24-26. The Respondents likewise did not put on any \ntestimonial evidence and rested. TR-25-26.  \nAdjudication \nA. Whether  Claimant sustained  a  compensable  injury  to  his  left  leg by  specific \nincident. \n \nUnder Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the body . . . \narising out of and in the course of employment and which requires medical services \nor results in disability or death.  An injury is “accidental” only if it is caused by a \nspecific incident and is identifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective findings.  \nArk. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings that \n\nSTEVENS H406862 \n \n6 \n \ncannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  The element “arising \nout of . . . [the] employment” relates to the causal connection between the claimant’s injury and \nhis or her employment.  City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987).  \nAn  injury arises  out  of  a  claimant’s  employment  “when  a  causal  connection  between  work \nconditions and the injury is apparent to the rational mind.”  Id. \n If  the  Claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements for establishing compensability, compensation must be denied.  Mikel v. Engineered \nSpecialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n Claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission.  White v. Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness but may accept and translate into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \nClaimant has not proven by the preponderance of the evidence that he has sustained a \ncompensable left knee injury that arose out of and in the course of his employment on September \n11, 2024, by specific incident. The Claimant did not offer any testimony on how he was injured at \nwork. Instead, Claimant’s counsel stated: “Claimant rest(s)...We’ve put on no evidence. We offer \nnothing\n3\n.” TR-12. This is consistent with Claimant’s counsels’ previous admission, during the \n \n3\n The transcript ends the following statement with a question mark “We offer nothing?” I believe this is a \nscrivener’s error and should have ended that sentence with a period. \n\nSTEVENS H406862 \n \n7 \n \nportion of the hearing dealing with the motion to amend Issue No. 1,\n4\n that “there was no injury on \nSeptember 11\nth\n.” TR-8. Thus, Claimant has not met his burden of proof on the compensability \nissue as set forth in the Prehearing Order. Therefore, his claim must fail. Mikel v. Engineered \nSpecialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  \nREMAINING ISSUES \n Based  on  my  previous  finding of  no  compensability,  the  remaining  issue  regarding \nreasonable and necessary medical treatment is moot and will not be addressed in this opinion.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, this claim \nfor initial benefits is hereby denied and dismissed.  \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge  \n \n \n \n4\n This injury date amendment hearing was held the same day as the full hearing.","textLength":12240,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H406862 CODY STEVENS, EMPLOYEE CLAIMANT SNAP ON, INC., EMPLOYER RESPONDENT XL SPECIALTY INS., CARRIER/TPA RESPONDENT GALLAGHER BASSETT SERVICES, INC., TPA RESPONDENT OPINION FILED FEBRUARY 11, 2026 Hearing before Administrative Law Judge, Steven Porch, on J...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:32:02.486Z"},{"id":"full_commission-H404010-2026-02-10","awccNumber":"H404010","decisionDate":"2026-02-10","decisionYear":2026,"opinionType":"full_commission","claimantName":"Ricky Cooper","employerName":"Atlas Asphalt, Inc","title":"COOPER VS. ATLAS ASPHALT, INC. AWCC# H404010 February 10, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Cooper_Ricky_H404010_20260210.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Cooper_Ricky_H404010_20260210.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H404010 \n \nRICKY W. COOPER, \nEMPLOYEE \n \nCLAIMANT \nATLAS ASPHALT, INC.,  \nEMPLOYER \n \nRESPONDENT \nBITCO GENERAL INSURANCE CORP., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED FEBRUARY 10, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed July \n22, 2025.  The administrative law judge found that the claimant failed to \nprove an employment relationship existed on June 24, 2022, the date the \nclaimant allegedly sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant did not \nprove by a preponderance of the evidence that he sustained a \ncompensable injury.     \nI.  HISTORY \n\nCOOPER - H404010  2\n  \n \n \n Ricky Wayne Cooper, Jr., now age 51, testified on direct \nexamination: \nQ.  Can you give us a little history of your job [at White River \nMaterials] and what you had to do on a daily basis? \nA.  Well, sure.  When I hired in there, I was a motor-grader \noperator, a finish motor-grader operator.  Then they didn’t \nhave a dozer operator, so I went to running a dozer.  I run \ncrews, I’ve worked on different jobs in a day, multiple times of \nchanging workplaces.  I was mainly a finish operator.  That’s \nwhat I did with all phases of the job.   \nQ.  Is that what you were doing on June 24, 2022? \nA.  Well, no, sir, I wasn’t finishing.  I was running a bulldozer, \nbut I wasn’t doing finish work with it.  We was taking up old \nconcrete, really just sitting there not doing much, you know.  \nThe hoe did all the work. \nQ.  Is it more preparatory work for ultimately finishing – \nA.  Well, that’s what it was, yes, sir.  It was the starting of a job \nis what it was, at the beginning of the job.   \nQ.  All right.  So what – what – White River Materials, what do \nthey do? \nA.  White River Materials does civil construction, sir, build \nroads, you know, put down gravel, asphalt, clear land, you \nknow, anything that civil engineering and civil construction \nis.... \nQ.  The particular job that you were involved in on June 24, \n2022, where was the – where was it located? \nA.  Jonesboro, Arkansas.   \nQ.  Okay.  Now, Ricky, you were paid wages for your time \nwhile you were on the job? \nA.  White River paid me for everything, sir, that I did. \nQ.  Okay.  When you say – \nA.  Including commuting.   \nQ.  Okay.  Let’s talk about when you say “for everything,” what \ndo you mean by that? \nA.  Well, they paid me for my heart surgery.  I was off for \nundoubtedly amount of months.  I can’t remember exact.  Five \nbypasses.  And they paid me for my – six weeks for my \ndaddy’s funeral, six weeks right there for my wife’s daddy’s \nfuneral.  They paid me for everything.  Everything that I done, \nI got paid for.... \n\nCOOPER - H404010  3\n  \n \n \nQ.  Well, with respect to your – your job itself of heavy \nequipment operator going to these various job sites you had a \ntruck? \nA.  Yes, sir.  I had a truck when I hired in about nine or 10 \nyears ago from the date of the accident.  That’s where I can \ntalk from.... \nQ.  You were given a truck to drive to and from your home? \nA.  I was given a truck to drive from job to job and conduct \nbusiness out of my pickup truck and do my job, and I was sort \nof like a working foreman, you know.  That wasn’t my title, but \nthat was what I was.  I was over all the trucks several times.  I \nmean, I just ran – you know, I was over the flaggers.  \nWherever my area was I was working, that’s what I took care \nof, and it – I had to use my truck sometimes just to make \nphone calls or whatnot.... \nQ.  Did you, on the day of the accident, June 24, 2022, did \nyou drive from your home to the – in Shirley to the job site or \nfrom someplace else to the job site? \nA.  I drove from Baymont Hotel in Jonesboro, Arkansas to the \njob site. \nQ.  Okay.  So you were in fact –  \nA.  They was reimbursing me.  I’ve got credit card statements, \nnot with me, but I have it where I’ve paid for it, and they didn’t \nreimburse me that last week.   \n \n Warren D. Robinson, Jr. testified that he had been the respondent-\nemployer’s Project Manager on June 24, 2022.  The respondents’ attorney \nexamined Mr. Robinson at hearing: \nQ.  Did you happen to have some communications with Mr. \nCooper on [June 24, 2022]? \nA.  Yes.   \nQ.  Okay.  Tell me what happened. \nA.  Well, I was driving down the northbound lanes that \nafternoon, I saw the dozer that he was in parked, and so that’s \nwhen I called Ricky and I said, “What’s going on?  Why is the \ndozer parked?”  And he said some – said that he was quitting, \nhe was going home, that we could come pick up the truck \nfrom his house.   \nQ.  Did you question him about that, why he was quitting? \n\nCOOPER - H404010  4\n  \n \n \nA.  And I says, “What are you quitting for?” and he said he’s \ntired of the BS, and that was it, and the phone hung up.  And I \n-    \nQ.  So do you know that time of day this was? \nA.  I believe it was around 1:30 in the afternoon, 1:24 or 1:30.  \nYou know, I mean, it’s several years ago, but it was in that \nneighborhood.... \nQ.  So he just flat said, “I’m quitting”? \nA.  Yes.   \nQ.  Did you – did you write down a memorandum of this \nevent? \nA.  It’s right here, yes.  This is – this is my statement that was \nturned in for his file.... \nQ.  So if he quit at that point, he was still in Jonesboro? \nA.  As far as my knowledge is, he was in Jonesboro.   \nQ.  And did you see him in his truck? \nA.  No.  By the time I went by, his truck was gone. \nQ.  And after he quit, was there any job services or duties he \nwas supposed to do between Jonesboro and Shirley? \nA.  Not for me and not for the company.  We didn’t have any \nprojects that way.     \n \n The record includes an EMPLOYEE DISCIPLINARY ACTION \nFORM, “Date of Warning:  6/24/22.”  The EMPLOYEE DISCIPLINARY \nACTION FORM WAS signed by supervisor Warren Robinson on June 24, \n2022.  The Type of Violation was “Other (explain) Left project and said that \nhe was quitting, and we could come pick up the truck from his house.”  The \nViolation Date was June 24, 2022, “Violation Time:  around 12:00 PM.” The \nViolation Location was “I-555/Jonesboro.”   \n The EMPLOYEE DISCIPLINARY ACTION FORM included an \nEmployer’s Statement: \nOn the afternoon of 6/24/22 Ricky parked the dozer and left \nthe project.  I was driving by the dozer in the north bound lane \n\nCOOPER - H404010  5\n  \n \n \nand saw it parked, so I called him and he informed me he was \nquitting and going home.  He also stated that we could come \npick up the truck from his house.   \n \n The claimant testified on direct examination: \n  Q.  They say that you quit your job? \n  A.  No, sir. \n  Q.  Did not happen? \n  A.  No, it’d be wrong.... \nQ.  During your deposition, Ricky, again talking about your – \nabout your vehicle, about your transportation situation, you \nindicated to Mr. Ryburn that you get paid until you get home to \nyour driveway –  \nA.  Yes, sir. \nQ.  – is that right? \nA.  That would be correct.   \n \n The claimant further testified on direct examination: \nQ.  So on June 24, 2022, you were involved in a motor vehicle \naccident, is that correct? \nA.  Yes, sir.... \nQ.  Do you remember what happened with respect to the \nactual accident that you were in? \nA.  Yeah.  Kenny and Jeremy both told me to take the rest of \nthe day off with pay.  And I got to about – right before Con – \nright after Concord, right around Highway 5 where you turn to \ngo – right past that Highway 5 turn, a girl lost control of her car \nand uncontrollable skid and hit me right behind the driver’s \nside door there in my work truck.   \nQ.  Now, you sustained injuries as a result of that accident? \nA.  I did....I went home, and the next morning I got up and \nwent to the emergency room.   \n \n The respondents’ attorney cross-examined the claimant: \nQ.  When you left Jonesboro to go back to Shirley, you got to \nwhere before you had the wreck? \nA.  Right past the turnoff to Highway 5 between Drasco and \nConcord.   \nQ.  Okay. \n\nCOOPER - H404010  6\n  \n \n \nA.  It was right past the Highway 5 turnoff to go to Mountain \nView.... \nQ.  Did you have any work to do between Jonesboro and \nDrasco? \nA.  Well, I – I was on the telephone with Kenny and Jeremy \nalmost all the way talking.  I guess I was.  I was talking work \nbusiness.... \nQ.  Now, at the time of this accident near Drasco, why were \nyou where you were? \nA.  Because Jeremy and Kenny told me to take the rest of the \nday off with pay.     \n \n According to the record, the claimant treated at St. Vincent Health \nSystem on June 25, 2022: \nPt restrained driver involved in MVA around 1530.  Reports \ngetting t-boned.  Pt reports hitting head.  Denies any \nLOC....Pt reports pain left hip, left knee, chest, upper back, \nneck.  Diffuse pain throughout.  Was not seen post[.]... \nThe patient presents following motor vehicle collision.  The \nonset was 1 days ago.  The Collision was moderate speed \nand rollover.  The patient was the driver. \n \n A musculoskeletal examination showed “No swelling, no deformity.”   \nA CT of the claimant’s head was taken on June 25, 2022 with the \nfollowing impression: \n1. No acute intracranial process visualized. \n2. Bilateral ethmoid and maxillary sinus disease.   \n \nA CT of the claimant’s cervical spine was taken on June 25, 2022 \nwith the impression, “Negative study.”  A CT of the claimant’s chest was \ntaken on June 25, 2022 with the impression, “1.  No acute pulmonary \nfinding.  2.  No fracture or other acute posttraumatic process.”  A CT of the \n\nCOOPER - H404010  7\n  \n \n \nclaimant’s abdomen and pelvis was taken on June 25, 2022 with the \nimpression, “No acute posttraumatic process of the abdomen or pelvis.”   \nThe claimant was discharged in stable condition on June 25, 2022.  \nIt was noted on June 25, 2022, “Did not fully assess this pt.  Pt was \nassessed and discharged from waiting room per medical provider.  Trauma \nsheet completed and turned into charge nurse.” \nThe claimant treated at Dodd Family Practice on or about June 28, \n2022: \nPATIENT IS HERE TO FOLLOW UP HE WAS T-BONED IN \nDRASCO FRIDAY AFTERNOON AND HAD TO BE CUT OUT \nOF HIS VEHICLE HE IS HAVING PAIN IN HIS NECK HIS \nHANDS ARE NUMB AND HIS RIGHT THUMB IS HURTING \nHIS EQUILIBRIUM IS OFF AND HE IS HAVING VISUAL \nDISTURBANCE....HE IS HAVING PAIN IN HIS RIGHT \nANKLE AND LEFT HIP HE IS HURTING REALLY BAD....HE \nIS A HEAVY EQUIPMENT OPERATOR AND WAS ON HIS \nWAY HOME IN A COMPANY TRUCK WHEN HE GOT T-\nBONED.  HE IS HAVING PANIC ATTACKS EVERYTIME HE \nGETS IN A VEHICLE FEELING LIKE SOMEONE IS GOING \nTO HIT HIS VEHICLE HE HAS NOT BEEN ABLE TO DRIVE \nSINCE HIS ACCIDENT.... \nPT IS HAVING DECREASED ROM OF CERVICAL SPINE \nAND PAIN WITH PALPATION TO CERVICAL SPINE \nMUSCLE SPASMS ACROSS BILATERAL \nNECK/SHOULDER WITH ROM.     \n \n The assessment of Angela Dodd, APRN included “Pain in cervical \nspine.”   \n An x-ray of the claimant’s hip was taken on July 5, 2022 with the \nimpression, “Negative.”  An x-ray of the claimant’s right ankle was taken on \n\nCOOPER - H404010  8\n  \n \n \nJuly 5, 2022 with the impression, “No acute findings.  Haglund deformity.  \nTiny calcaneal spur.”  An x-ray of the claimant’s right foot was taken on July \n5, 2022 with the findings, “No fracture is identified.  No dislocation is \nidentified.  No arthritis is noted.  No periosteal reaction or unexpected \nopaque foreign body is seen.”   \n The claimant began a series of visits with Robert Yerton, LCSW on \nJuly 14, 2022.  Mr. Yerton’s initial diagnosis was “Post-traumatic stress \ndisorder,” “Major depressive disorder, single episode, severe without \npsychotic features,” and “Other situational type phobia.” \n Robert Yerton noted on July 21, 2022, “Ricky reported that he was \nfired from his job this week due to his doctor filing his treatment from his \naccident as workman’s comp.  ‘I have worked for that company for 9 years, \nthey took care of my (sic) for 12 weeks after my heart bypass and now this.’  \nHe says that he has been having nightmares before but they increased \nsince getting fired.”   \n The claimant was examined at Legacy Spine & Neurological \nSpecialists on or about October 7, 2022: \nMr. Cooper is a 47 year old male who presents with neck pain \nand low back pain.  He reports that his neck pain began 4 \nmonths ago following an MVA to which [he] was T-boned in \nthe car flipped multiple times.  He states that the pain in his \nneck will radiate into both shoulders and anteriorly down both \narms to both hands.  He also reports pain that radiates into \nboth shoulder blade areas....He is experiencing significant \nheadaches primarily to the base of his skull however this may \n\nCOOPER - H404010  9\n  \n \n \nintermittently wraparound anteriorly toward his temples.  He is \nexperiencing slight dizziness and having trouble focusing with \nsevere pain.  He reports numbness, weakness, and tingling to \nhis arms bilaterally. \nHe is also experiencing low back pain that will radiate into \nboth hips and anteriorly down to both feet.... \n \n It was subsequently noted, “Cervical spine MRI from 10/19/22 \ndemonstrates no evidence of central canal or neural paraspinal stenosis.  \nNo spondylolisthesis.  There is normal cervical lordosis.”   \n An MRI of the claimant’s lumbar spine was taken on October 26, \n2022 with the following conclusion: \nDominant findings are noted at the L5-S1 level with disc \nheight loss, retrolisthesis, a broad-based disc bulge with \ncentral protrusion and facet hypertrophy contributing to \nabutment of bilateral exiting L5 nerves and abutment of \nbilateral descending S1 nerves.   \n \n The claimant underwent a sacroiliac joint injection on November 3, \n2022 and a selective nerve root block on November 21, 2022.  The claimant \nunderwent a sacroiliac joint injection on December 12, 2022.  The claimant \nunderwent cervical medial branch blocks on February 13, 2023 and March \n16, 2023.  The claimant underwent a cervical rhizotomy on April 6, 2023.   \n Dr. Dominic Maggio performed procedures on April 11, 2023:  “1)  \nSacroiliac joint arthrodesis with instrumentation with iFuse Implant System-\nS1 bone, Left.  2)  Use of intraoperative fluoroscopy.”  The pre- and post-\noperative diagnosis was “Left sacroiliac joint dysfunction.”     \n\nCOOPER - H404010  10\n  \n \n \nA pre-hearing order was filed on March 20, 2025.  The claimant \ncontended, “Claimant contends that he sustained compensable injuries, \n06/24/22.  Claimant contends entitlement to payment of temporary total \ndisability benefits continuing through a date yet to be determined.  Medical \nexpenses have been incurred.  This claim has been controverted for \npurposes of attorney fees.  Claimant’s attorney respectfully requests that \nany attorney’s fees owed by the claimant on controverted benefits paid by \naward or otherwise be deducted from claimant’s benefits and paid directly \nto the claimant’s attorney by separate check, and that any Commission \nOrder direct the respondent to make payment of attorney’s fees in this \nmanner.”   \n The respondents contended, “Respondents will assert the following \ndefenses:  The claimant did not sustain a compensable injury.  He \nterminated his employment prior to the time of the accident.  He was on his \nway home and not performing employment services at the time of the \naccident.”   \n According to the text of the pre-hearing order, the parties agreed to \nlitigate the following issues: \n1. Did an employee/employer relationship exist on June 24, \n2022, at the time of the injury, and if one did exist, was the \ninjury compensable. \n2. Medical. \n3. TTD from the date of the injury to a date to be determined.   \n4. Attorney fees. \n\nCOOPER - H404010  11\n  \n \n \n5. All other issues are reserved.   \n \nOn May 21, 2025, the respondents presented additional contentions: \n “Respondents contend that: \n1. The claimant does not have a compensable mental or \nPTSD injury.  His condition is not verified, as required by \nlaw, by a licensed psychiatrist or psychologist. \n2. The claimant does not have a compensable SI joint injury \nas it is not corroborated by objective medical; findings. \n3. The claimants (sic) lumbar condition is attributable to \ndegenerative findings and was not caused by the accident.  \nThe major cause of any PPD is not the accident.   \n4. The claimants (sic) cervical condition is degenerative and \nwas not caused by the accident. \n5. No doctor has opined that the accident is the cause of any \nof the claimant’s medical conditions.”   \n \nAfter a hearing, an administrative law judge filed an opinion on July \n22, 2025.  The administrative law judge found that the claimant failed to \nprove an employment relationship existed on June 24, 2022.  The claimant \nappeals to the Full Commission.      \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n(A)  “Compensable injury” means: \n(i) An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in the \ncourse of employment and which requires medical \nservices or results in disability or death.  An injury is \n“accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n(B)  “Compensable injury” does not include: \n(iii)   Injury which was inflicted upon the employee at a time \nwhen employment services were not being performed \n\nCOOPER - H404010  12\n  \n \n \nor before the employee was hired or after the \nemployment relationship was terminated[.]     \n \n  An employee is performing employment services when he is doing \nsomething that is generally required by his employer.  Dairy Farmers of \nAmerica v. Coker, 98 Ark. App. 400, 255 S.W.3d 905.  The Arkansas \nSupreme Court uses the same test to determine whether an employee is \nperforming employment services as it does when determining whether an \nemployee is acting within the course and scope of employment.  Pifer v. \nSingle Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).  The test is \nwhether the injury occurred within the time and space boundaries of the \nemployment, when the employee was carrying out the employer’s purpose \ndirectly or indirectly.  Id. \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(Repl. 2012). \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).   \n\nCOOPER - H404010  13\n  \n \n \n An administrative law judge found in the present matter, “2.  That the \nclaimant has failed to satisfy the required burden of proof to show that an \nemployer/employee carrier relationship existed on June 24\nth\n, 2022, 2025 \n(sic), the date of the claimed injury involving a motor vehicle accident.”  The \nFull Commission finds that the claimant did not prove by a preponderance \nof the evidence that he sustained a compensable injury.   \n The claimant testified that he had been employed with the \nrespondents as a “Finish Operator.”  The claimant testified that he was \n“running a bulldozer” for the respondents on June 24, 2022.  Warren D. \nRobinson, Jr., the respondent-employer’s Project Manager, testified that he \ndrove past the respondents’ work site on June 24, 2022 and “I saw the \ndozer that he was in parked.”  Mr. Robinson testified that he called the \nclaimant and “He said some – said that he was quitting, he was going \nhome, that we could come pick up the truck from his house....[H]e said he’s \ntired of the BS, and that was it, and the phone hung up.” \n The claimant testified that he did not terminate his employment \nrelationship with the respondents on June 24, 2022.  The claimant testified \nthat two other supervisory employees “told me to take the rest of the day off \nwith pay.”  The Full Commission is not required to believe the testimony of \nthe claimant or any other witness but may accept and translate into findings \nof fact only those portions of the testimony it deems worthy of belief.  \n\nCOOPER - H404010  14\n  \n \n \nFarmers Co-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  The Full \nCommission finds in the present matter that the claimant was not a credible \nwitness.  There was no probative evidence of record corroborating the \nclaimant’s testimony that he was told to “take the rest of the day off with \npay.”  Instead, the evidence corroborated the credible testimony of the \nrespondent-employer’s Project Manager, Warren D. Robinson, Jr..  Warren \nRobinson completed an EMPLOYEE DISCIPLINARY ACTION FORM on \nJune 24, 2022 which corroborated Mr. Robinson’s testimony.  The \nEMPLOYEE DISCIPLINARY ACTION FORM filled out by Warren Robinson \nindicated that the claimant “was quitting and going home.  He also stated \nthat we could come pick up the truck at his house.”   \n The evidence therefore demonstrates that the June 24, 2022 motor \nvehicle accident took place “after the employment relationship was \nterminated,” in accordance with Ark. Code Ann. §11-9-102(4)(B)(iii).  \nTherefore, any injuries the claimant allegedly sustained on June 24, 2022, \nafter he terminated his employment and left the work site, were not \ncompensable.   \n Moreover, the Full Commission finds that the claimant was not \nperforming employment services for the respondents at the time of the June \n24, 2022 motor vehicle accident.  We recognize that a claimant may be \nperforming employment services if the employer requires him to travel from \n\nCOOPER - H404010  15\n  \n \n \njobsite to jobsite as part of his work.  See Moncus v. Billingsley Logging, \n366 Ark. 383, 235 S.W.3d 877 (2006).  In the present case, however, the \nrecord does not show that the claimant was performing employment \nservices at the time of the June 24, 2022 motor vehicle accident.  The \ncritical inquiry in accordance with Act 796 of 1993 is whether the claimant \nwas performing employment services when the injury occurred.  See Parker \nv. Comcast Cable Corp., 100 Ark. App. 400, 269 S.W.3d 391 (2007), citing \nMoncus, supra.  The Commission is bound to examine the activity the \nclaimant was engaged in at the time of the accident in determining whether \nor not he was performing employment services.  Hill v. LDA Leasing, 2010 \nArk. App. 271, 374 S.W.3d 268 (2010).   \n In the present matter, the evidence does not demonstrate that the \nclaimant was performing employment services at the time of the motor \nvehicle accident which took place on June 24, 2022.  The evidence does \nnot demonstrate that the claimant was performing his duties for the \nrespondents after he voluntarily left the work site on June 24, 2022, which \nduties primarily involved heavy equipment operation, i.e., driving a \nbulldozer.  Nor does the record corroborate the claimant’s testimony that he \nwas “talking work business” while driving from Jonesboro to Shirley on the \nafternoon on June 24, 2022.  The evidence before the Commission does \nnot demonstrate that the claimant was performing employment services at \n\nCOOPER - H404010  16\n  \n \n \nthe time of the June 24, 2022 motor vehicle accident.  Therefore, the \nclaimant did not prove that he sustained a compensable injury.  See Farler \nv. City of Cabot, 95 Ark. App. 121, 234 S.W.3d 352 (2006).  The record \ndoes not show that the claimant was carrying out the employer’s purpose \ndirectly or indirectly at the time of the accident.  See Pifer, supra.     \n After reviewing the entire record de novo, the Full Commission finds \nthat the injuries allegedly sustained by the claimant on June 24, 2022 \noccurred after the claimant voluntarily terminated his employment \nrelationship with the respondents, in accordance with Ark. Code Ann. §11-\n9-102(4)(B)(iii)(Repl. 2012).  We also find that the claimant was not \nperforming employment services for the respondents at the time of the June \n24, 2022 motor vehicle accident.  The claimant did not prove by a \npreponderance of the evidence that he sustained a compensable injury on \nJune 24, 2022.  The Full Commission therefore respectfully denies and \ndismisses this claim. \n IT IS SO ORDERED.           \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":25002,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H404010 RICKY W. COOPER, EMPLOYEE CLAIMANT ATLAS ASPHALT, INC., EMPLOYER RESPONDENT BITCO GENERAL INSURANCE CORP., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 10, 2026","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["back","hip","knee","neck","cervical","fracture","ankle","shoulder"],"fetchedAt":"2026-05-19T22:29:43.857Z"},{"id":"full_commission-H208296-2026-02-10","awccNumber":"H208296","decisionDate":"2026-02-10","decisionYear":2026,"opinionType":"full_commission","claimantName":"Laura Treadwell","employerName":"Pope County Judge","title":"TREADWELL VS. POPE COUNTY JUDGE AWCC# H208296 February 10, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Treadwell_Laura_H208296_20260210.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Treadwell_Laura_H208296_20260210.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO. H208296 \n \nLAURA TREADWELL, \nEMPLOYEE \n \nCLAIMANT \nPOPE COUNTY JUDGE,  \nEMPLOYER \n \nRESPONDENT \nAAC RISK MANAGEMENT SERVICES, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED FEBRUARY 10, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE DANIEL E. WREN, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE JASON M. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nJuly 22, 2025.  The administrative law judge found that the claimant proved \nshe was entitled to a five percent permanent anatomical impairment rating \nand wage-loss disability in the amount of 10%.  After reviewing the entire \nrecord de novo, the Full Commission finds that the claimant did not prove \nshe sustained permanent anatomical impairment or wage-loss disability as \na result of the compensable injury.       \nI. HISTORY \n\nTREADWELL - H208296  2\n  \n \n \n Laura Treadwell, now age 48, testified that she had been employed \nwith the respondents since 2002.  Ms. Treadwell testified that she became \nan “EMT Paramedic” for the respondents in 2003.  The claimant’s testimony \nindicated that she sustained a previous work-related injury at an \nundetermined date.  The claimant characterized the previous injury as “a \nmuscle strain.”  The record indicates that Dr. H. Kevin Beavers began \ntreating the claimant for low back pain and other symptoms no later than \nOctober 2017. \nAn x-ray of the claimant’s lumbar spine was taken on November 21, \n2017 with the following findings: \nAP, lateral and spot views of lumbar spine are obtained.  No \nacute appearing wedge compression fracture.  Vertebral body \nheights and disc space heights are fairly well maintained.  \nThere is sclerosis facet joints believed to be degenerative.  \nMild scoliosis.  Pedicles appear to be intact. \nIMPRESSION:  No acute bony abnormality.   \n \n An MRI of the claimant’s lumbar spine was taken in October 2018 \nwith the following findings: \nT12-L1:  No focal disc abnormalities.  No central canal \nstenosis or neuroforaminal narrowing.   \nL1-2:  No focal disc abnormality.  No central canal stenosis or \nneural foraminal narrowing. \nL2-3:  No focal disc abnormality.  No central canal stenosis or \nneural foraminal narrowing.   \nL3-4:  No focal disc abnormality.  No central canal stenosis or \nneural foraminal narrowing. \nL4-5:  Small right-sided disc protrusion which effaces the sac \nminimally. \n\nTREADWELL - H208296  3\n  \n \n \nL5-S1:  Focal disc abnormality.  No central canal stenosis or \nneural foraminal narrowing.  Mild facet hypertrophy L4-5 and \nL5-S1. \nIMPRESSION:  Small right-sided disc herniation L4-5.   \n \n The parties stipulated that the employment relationship existed on \nApril 15, 2022.  The claimant testified on direct examination: \n Q.  What position did you hold back on April 15\nth\n of 2022? \n A.  I worked for Pope County EMS as a paramedic.... \nQ.  But just for a little bit of background for the judge, a two-\nminute summary of how you got hurt. \nA.  Me and my female partner were on a call in Hector about a \n275-pound man with breathing problems that needed to be \ntransported.  When we put him on our cot, our cots are \nmanual lift....When we picked the cot up, my partner did not \nrelease the handle on the cot.  It did not lock the legs in place \nand when the weight was put back down, the cot slammed to \nthe ground and I was still holding it.  I bent at the waist....My \nhead was close to my toes.   \n \n The parties stipulated that the claimant “sustained a compensable \ninjury to her back” on April 15, 2022.  The claimant signed a Form AR-N, \nEMPLOYEE’S NOTICE OF INJURY, on April 15, 2022.  The ACCIDENT \nINFORMATION section of the Form AR-N indicated that the claimant \ninjured her back and right shoulder on April 15, 2022.     \n According to the record, the claimant treated at Conservative Care \nOccupational Health on June 27, 2022: \nPatient states that she was lifting a cot with a coworker.  She \nstates the patient they were lifting was about 275lbs.  She \nstates that the legs of the cot collapsed and she was pulled \nforward.  Patient states that her head went to her feet and she \nhad immediate pain in her back, right shoulder and groin.   \n \n\nTREADWELL - H208296  4\n  \n \n \n An APRN diagnosed “1.  Strain of muscle, fascia and tendon of lower \nback” and “2.  Strain of muscle(s) and tendon(s) of the rotator cuff of right \nshoulder.”  The APRN planned “Referral for MRI.  Referral to \nneurosurgeon.”   \n The record indicates that the claimant began treating with Dr. \nEdward Saer on or about September 9, 2022.  Dr. Saer reported on \nSeptember 12, 2022: \nMs. Treadwell is back in follow-up.  She has been doing \nstrengthening exercises with PT....She is still working with \nrestrictions.  She also continues to have pain which is \nprimarily in the left lower lumbar/lumbosacral area, and in the \nleft lower thoracic area just lateral to the midline.   \nI reviewed her prior imaging had a long discussion with her \nabout this today.  It is difficult to pinpoint 1 specific thing as \nthe cause of her problem.  X-rays and MRI are not terribly \nhelpful.  We will get a SPECT-CT scan of the thoracic and \nlumbar spine to see if we can localize something.  I will see \nher afterwards.  Work restrictions are unchanged.   \n \n Dr. Saer diagnosed “1.  Degeneration of lumbar intervertebral disc,” \n“2.  Low back pain,” and “3.  Thoracic back pain.”   \n Dr. Saer reported on September 27, 2022: \nMs. Treadwell is back following CT of the thoracic and lumbar \nspine.  Her insurance company would not approve a SPECT-\nCT.  She continues to have pain in the upper back and also \nsome down lower.  She finds it very difficult to even walk \nthrough the store without having to lean forward on the cart.  \nShe is currently working in the County assessor’s office \nbecause she is on light duty.  Most of that is okay but recently \nshe has had to do a lot of bending and reaching while \nstanding documents.  That has exacerbated her discomfort.   \n\nTREADWELL - H208296  5\n  \n \n \nI reviewed the CT films and report.  The study was done \nearlier today.  There are some minimal degenerative changes \nin different areas but nothing that looks significant in any area.   \nI talked with her about this.  At this point [I do] not have a \ngood explanation for her continued pain other than a soft \ntissue injury.  I do not see anything to need surgery for.  I think \nshe is likely going to need to continue on a restricted duty \nbasis but we should get an FCE to define those restrictions \nbetter.  For now she should continue with light duty.  I will see \nher back after the FCE and plan to release her at that time.   \n \n The claimant followed up with Dr. Saer on November 29, 2022: \nShe is an EMT and had a work-related injury on April 15, 2022 \nlifting a patient on a cot.  She has had pain in her lower back \nas well as tightness in the lower thoracic area since then.   \nShe continues to complain of the tightness in her back \nespecially if she overdoes things.... \nExam:  She gets up and down easily and walks normally.  She \nhas good forward bending and good extension although \nextension is a little uncomfortable.  Forward bending is her \nposition of comfort.  There is no muscle spasm.  She has no \nlocalized tenderness.   \nHer prior imaging did not show any significant abnormalities \nno new x-rays were obtained today.   \nAssessment:  I had recommended an FCE but that was not \napproved.  Therefore I think she should continue with light \nduty level work with a lifting limit of 25 pounds, and no \nrepetitive bending twisting or lifting.  These restrictions should \nbe considered permanent.   \nShe is at MMI.  There is no permanent impairment associated \nwith this injury.   \n \n Dr. Saer further reported on November 29, 2022: \nI saw Laura Treadwell in the office today.  She has been \ntreated for back pain following an injury at work.  As far as I \ncan determine she had a lumbar strain or sprain. \nTreatment was based on the recent injury, not on pre-existing \nchanges.  There are no objective findings to warrant \npermanent impairment rating.  Work restrictions are based \nprimarily on the injury, not any pre-existing conditions.   \n\nTREADWELL - H208296  6\n  \n \n \nAs far as I can tell, this was an acute injury, although I did not \nsee her until 3 months after the date of injury.   \nI do not think any further treatment is needed at this time.   \n \n Dr. Beavers referred the claimant to Dr. Brad A. Thomas, who \nreported in part on March 15, 2023, “She has been having low back pain \nsince an injury at work in April of 2022.  She started having symptoms again \nin January that she believes is related to her work injury....We are going to \norder a new MRI and have her follow up.”   \n Dr. Thomas noted on April 7, 2023, “MRI of the lumbar spine was \nobtained, demonstrating the following findings:  mild degenerative changes, \nno sig canal stenosis or impingement....There is no surgery recommended \nfor her low back, she does still have numbness in her left leg with certain \npositions.  She has been avoiding those positions, we are going to get \nEMG/NCV of the left and f/u after.” \n A NERVE CONDUCTION STUDY LOWER EXTREMITY was done \non May 19, 2023 with the impression, “Mild left proximal sciatic neuropathy; \nperoneal > post tibial division.”     \n Dr. Thomas reported on June 7, 2023 that EMG testing showed “Mild \nleft neuropathy....There is no surgery recommended for her low back based \non the MRI and the EMG.  She does have some mild left radicular \nneuropathy.  She is unable to do her job as a paramedic and is doing a light \nduty job, she will continue her current work status.  She is a year out from \n\nTREADWELL - H208296  7\n  \n \n \nthe work accident and we do feel her continued symptoms are related to the \nwork accident.  We are going to get [an] FCE to evaluate her long term \nwork status.  We will order this and f/u after to determine her impairment \nrating.”   \nA pre-hearing order was filed on January 23, 2024.  The claimant \ncontended, “Dr. Beavers has ordered a functional capacity exam for the \nClaimant which the Respondents refused to approve.”  The respondents \ncontended, “All appropriate benefits have been paid.  The claimant has \nbeen released at MMI with a 0% impairment rating.  An FCE is not medical \ntreatment, nor is it necessary.” \n The parties agreed to litigate the following issues: \n1. Whether Claimant is entitled to additional medical \ntreatment in the form of an FCE as recommended by Dr. \nBeavers, or whether Claimant is entitled to referral from \nDr. Beavers to a neurologist. \n \nDr. Beavers stated on March 1, 2024: \nI referred Laura Treadwell to Dr. Brad Thomas on February \n22, 2023 for an evaluation of ongoing radicular pain into her \nleft lower extremity.  Dr. Brad Thomas, a board certified \nneurosurgeon ordered an EMG nerve conduction velocity that \nrevealed that she had left proximal sciatic neuropathy.  Ms. \nTreadwell was being seen both by me and Dr. Thomas under \nher health insurance.  Her health insurance would not pay for \nthe continued treatment recommended by Dr. Thomas.  I do \nfeel that referral to Dr. Thomas for a radicular type pain with \nan abnormal MRI was appropriate.  Further based upon the \nEMG nerve conduction results I continue to believe that Ms. \nTreadwell needs to be able to continue her treatment with Dr. \n\nTREADWELL - H208296  8\n  \n \n \nThomas and/or an equally qualified neurosurgeon/orthopedic \nspine specialist.   \n \n A hearing was held on March 14, 2024.  The claimant testified that \nshe was no longer physically able to perform duties as an Emergency \nMedical Technician, but that she was employed with the respondents as a \nDeputy Assessor.     \nThe respondents’ attorney cross-examined the claimant at the March \n14, 2024 hearing: \nQ.  [Dr. Saer] released you with a zero percent permanent \nimpairment rating.  Is that not true? \nA.  Yes, sir....That is my understanding.  I never received \nanything from Dr. Saer.... \nQ.  And you were released, as you testified earlier, with \npermanent restrictions.  Correct? \nA.  Yes, sir. \nQ.  Do you believe that you can do more than those \nrestrictions? \nA.  No, sir. \nQ.  Do you believe that you can do – that those restrictions \nshould be removed? \nA.  No, sir. \nQ.  What do you think an FCE will accomplish, then? \nA.  My goal is to be compensated for the wage loss that I have \nincurred because of a documented work comp injury.   \nQ.  So in fact, you disagree with that zero percent and the \nFCE is simply a way to get a different rating? \nA.  Yes, sir.   \n \n An administrative law judge filed an opinion on June 11, 2024.  The \nadministrative law judge found, “2.  The claimant has proven by a \npreponderance of the evidence that she is entitled to additional medical \ntreatment in the form of an FCE.”  There was no appeal of the \n\nTREADWELL - H208296  9\n  \n \n \nadministrative law judge’s opinion filed June 11, 2024, and the parties \nstipulated, “Prior opinions are res judicata and the law of the case.”            \n The claimant participated in a Functional Capacity Evaluation on July \n8, 2024:  “The results of this evaluation indicate that a reliable effort was put \nforth, with 50 of 50 consistency measures within expected limits....Ms. \nTreadwell completed functional testing on this date with reliable results.  \nOverall, Ms. Treadwell demonstrated the ability to perform work in the \nMEDIUM classification of work[.]”   \n Dr. Thomas noted on August 15, 2024, “The patient presents for \nfurther evaluation and management and the FCE shows she gave reliable \neffort with a medium classification.  She works in the assessors office \nbecause she couldn’t go back to her job at EMS as a paramedic.  She will \nnot be able to go back to working as a paramedic due to the lifting \nrequirements.  We recommend disability from the paramedic position based \non the lifting restrictions.” \n Dr. Thomas reported on November 20, 2024: \nMs. Treadwell is a patient of mine.  I last saw her on \n08/15/2024.  I am going to place her with an impairment rating \nbased on that date which is the last time I saw her.  This will \ngive her a 5% impairment rating for unoperated on continued \nlower back pain after her work injury.   \n \n A pre-hearing order was filed on February 25, 2025.  The claimant \ncontended, “On November 29, 2023, Dr. Saer released the claimant at MMI \n\nTREADWELL - H208296  10\n  \n \n \nand recommended an FCE, but the test was denied by Workers \nCompensation.  He released her with light duty level work with a lifting limit \nof 25 lbs. and no repetitive bending, twisting, or lifting.  Restrictions should \nbe considered permanent.  On February 7, 2023, Claimant sought \ntreatment for injury on her own insurance.  Dr. Beavers referred Claimant to \nDr. Brad Thomas.  On March 15, 2023, Dr. Brad Thomas ordered an MRI \nand on April 7, 2023 Dr. Thomas ordered an EMG and referred her to pain \nmanagement.  On April 24, 2023, Dr. Thomas opined that no surgery was \nrecommended based on the MRI and EMG.  He also opined that Claimant \nis unable to do her current job as a paramedic and is doing a light duty job.  \nClaimant will continue current work status.  I feel her symptoms are related \nto the work accident.  Dr. Thomas stated that we are going to get an FCE to \nevaluate her long-term work status.  On May 19, 2023 the EMG/NCV test \nwas performed.  On July 8, 2024, the FCE test was performed with reliable \nand consistent measures.  On November 20, 2024, Dr. Thomas issued \nClaimant at 5% impairment rating.  Since the accident, the Claimant has \nbeen unable to return to her job as a paramedic.  The Claimant is entitled to \nher impairment rating and wage loss claim.”   \n The respondents contended, “This is an accepted claim and all \nappropriate benefits have been paid.  Dr. Saer released the claimant with a \n0% on 11/29/22.  The claimant suffers from degenerative issues.  The 5% \n\nTREADWELL - H208296  11\n  \n \n \nby Dr. Thomas is invalid as the work in injury was not the major cause.  The \nclaimant is not entitled to wage loss.” \n The parties agreed to litigate the following issues: \n1. Whether Claimant is entitled to payment of 5% impairment \nrating issued by Dr. Brad Thomas. \n2. Whether Claimant is entitled to wage loss. \n3. Whether Claimant’s attorney is entitled to an attorney’s \nfee.   \n \nThe claimant’s attorney corresponded with Dr. Thomas on April 14, \n2025: \nOn November 20, 2024, we received the attached letter from \nyou stating that you gave her an impairment rating of 5% for \nunoperated continued lower back pain after her work injury. \nIn order to clarify the above impairment rating given, could \nyou please state that the impairment rating given to Laura \nTreadwell was based upon the guides to the evaluation of \npermanent injuries 4\nth\n edition. \n \nYes_______            No_______ \n \n Dr. Thomas checked “Yes” on April 16, 2025.   \nA hearing was held on April 24, 2025.  The claimant testified that she \ncontinued to be employed with the respondents in the assessor’s office.  \nThe claimant testified that she continued to suffer from chronic back pain \nand numbness in her left lower extremity.         \nAn administrative law judge filed an opinion on July 22, 2025.  The \nadministrative law judge found that the claimant proved she sustained \npermanent anatomical impairment in the amount of 5%.  The administrative \n\nTREADWELL - H208296  12\n  \n \n \nlaw judge awarded wage-loss disability in the amount of 10%.  The \nrespondents appeal to the Full Commission. \nII.  ADJUDICATION \n Permanent impairment is any functional or anatomical loss remaining \nafter the healing period has been reached.  Johnson v. Gen. Dynamics, 46 \nArk. App. 188, 878 S.S.2d 411 (1994).  The Commission has adopted the \nAmerican Medical Association Guides to the Evaluation of Permanent \nImpairment (4\nth\n ed. 1993) to be used in assessing anatomical impairment.  \nSee Commission Rule 099.34; Ark. Code Ann. §11-9-522(g)(Repl. 2012).  It \nis the Commission’s duty, using the Guides, to determine whether the \nclaimant has proved she is entitled to a permanent anatomical impairment.  \nPolk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).   \n Any determination of the existence or extent of physical impairment \nshall be supported by objective and measurable physical findings.  Ark. \nCode Ann. §11-9-704)(c)(1)(B)(Repl. 2012).  Objective findings are those \nfindings which cannot come under the voluntary control of the patient.  Ark. \nCode Ann. §11-9-102(16)(A)(i)(Repl. 2012).  Although it is true that the \nlegislature has required medical evidence supported by objective findings to \nestablish a compensable injury, it does not follow that such evidence is \nrequired to establish each and every element of compensability.  Stephens \nTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  All that \n\nTREADWELL - H208296  13\n  \n \n \nis required is that the medical evidence be supported by objective findings.  \nSingleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006).  \nMedical opinions addressing impairment must be stated within a reasonable \ndegree of medical certainty.  Ark. Code Ann. §11-9-102(16)(B)(Repl. 2012).   \n Permanent benefits shall be awarded only upon a determination that \nthe compensable injury was the major cause of the disability or impairment.  \nArk. Code Ann. §11-9-102(F)(ii)(a)(Repl. 2012).  “Major cause” means \n“more than fifty percent (50%) of the cause,” and a finding of major cause \nshall be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(Repl. 2012).  Preponderance of the evidence \nmeans the evidence having greater weight or convincing force.  \nMetropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d \n252 (2003).   \n An administrative law judge found in the present matter, “2.  The \nclaimant has proven by a preponderance of the evidence that she is entitled \nto a 5% impairment rating to the body as a whole.”  The Full Commission \ndoes not affirm this finding.  The parties stipulated that the claimant \n“sustained a compensable injury to her back” on April 15, 2022.  The \nclaimant testified that she sustained a compensable injury as the result of \nbending and lifting a cot while performing employment services.  An \n\nTREADWELL - H208296  14\n  \n \n \nAPRN’s diagnosis on June 27, 2022 was “1.  Strain of muscle, fascia and \ntendon of lower back.”   \n Dr. Saer eventually began treating the claimant, and his diagnosis on \nSeptember 12, 2022 included “1.  Degeneration of lumbar intervertebral \ndisc.”  Dr. Saer reviewed CT films and reported on September 27, 2022, \n“There are some minimal degenerative changes in different areas but \nnothing that looks significant in any area.”  Dr. Saer noted on November 29, \n2022, “There is no muscle spasm....Her prior imaging did not show any \nsignificant abnormalities no new x-rays were obtained today.”  Dr. Saer \nopined, “There is no permanent impairment associated with this injury \n[emphasis supplied].”  Dr. Saer further stated on November 29, 2022, “As \nfar as I can determine she had a lumbar strain or sprain....There are no \nobjective findings to warrant permanent impairment rating [emphasis \nsupplied].”   \n Dr. Thomas reported in April 2023 that an MRI of the claimant’s \nlumbar spine showed “mild degenerative changes” and “no surgery \nrecommended for her low back[.]”  A nerve conduction study of the \nclaimant’s left lower extremity showed “Mild left proximal sciatic neuropathy; \nperoneal > post tibial division.”  Dr. Thomas subsequently noted that EMG \ntesting showed “Mild left neuropathy.”   \n\nTREADWELL - H208296  15\n  \n \n \n As we have noted, the claimant participated in a Functional Capacity \nEvaluation on July 8, 2024:  “Ms. Treadwell completed functional testing on \nthis date with reliable results.  Overall, Ms. Treadwell demonstrated the \nability to perform work in the MEDIUM classification of work[.]”   \n Dr. Thomas reported on November 20, 2024 that he assigned the \nclaimant “a 5% impairment rating for unoperated on continued lower back \npain after her work injury.”  Dr. Thomas informed the claimant’s attorney \nthat he purported to assess 5% permanent anatomical impairment based \non the 4\nth\n Edition of the American Medical Association Guides to the \nEvaluation of Permanent Impairment. \n The Full Commission finds, in the present matter, that there were no \nobjective or measurable physical findings supporting any percentage of \npermanent physical impairment.  We note that the Commission may not \nconsider complaints of pain in determining physical or anatomical \nimpairment.  See Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. 2012).  \nMoreover, it is the Commission’s duty to translate the evidence of record \ninto findings of fact.  Gencorp Polymer Prods. v. Landers, 36 Ark. App. 190, \n820 S.W.2d 475 (1991).  It is within the Commission’s province to weigh all \nof the medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. App. 94, 989 S.W.2d 151 (1999).  The Full \nCommission finds in the present matter that Dr. Saer’s opinion is credible \n\nTREADWELL - H208296  16\n  \n \n \nand is entitled to more evidentiary weight than Dr. Thomas’ opinion.  The \nFull Commission finds that the probative evidence of record corroborates \nDr. Saer’s opinion, “There is no permanent impairment associated with this \ninjury....There are no objective findings to warrant permanent impairment \nrating.”  We find that there is no portion of the July 8, 2024 Functional \nCapacity Evaluation which can be translated or interpreted as a finding of \npermanent anatomical impairment.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove she sustained any percentage of permanent \nanatomical impairment as a result of the April 15, 2022 compensable injury.  \nThe claimant did not establish the existence of any percentage of \nanatomical impairment by objective or measurable physical findings, as is \nrequired by Ark. Code Ann. §11-9-704(c)(1)(B)(Repl. 2012).  Because the \nclaimant did not prove that she sustained permanent anatomical impairment \nas a result of the compensable injury, the claimant did not prove she was \nentitled to wage-loss disability.  Taggart v. Mid Am. Packaging, 2009 Ark. \nApp. 335, 308 S.W.3d 643.  This claim is respectfully denied and \ndismissed. \n \n \n \n\nTREADWELL - H208296  17\n  \n \n \n IT IS SO ORDERED. \n  \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n     \n \n \nCommissioner Willhite dissents.","textLength":24932,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H208296 LAURA TREADWELL, EMPLOYEE CLAIMANT POPE COUNTY JUDGE, EMPLOYER RESPONDENT AAC RISK MANAGEMENT SERVICES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 10, 2026","outcome":"denied","outcomeKeywords":["dismissed:1","granted:2","denied:4"],"injuryKeywords":["strain","back","lumbar","fracture","shoulder","rotator cuff","thoracic","repetitive"],"fetchedAt":"2026-05-19T22:29:43.875Z"},{"id":"alj-H501893-2026-02-10","awccNumber":"H501893","decisionDate":"2026-02-10","decisionYear":2026,"opinionType":"alj","claimantName":"Gabriel Franco","employerName":"Lindsey Gin Co","title":"FRANCO VS. LINDSEY GIN CO. AWCC# H501893 February 10, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Franco_Gabriel_H501893_20260210.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Franco_Gabriel_H501893_20260210.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H501893 \n \nGABRIEL LARA FRANCO, \nEMPLOYEE                                                                                                              CLAIMANT \n \nLINDSEY GIN CO., \nEMPLOYER                                                                                                         RESPONDENT  \n \nAGRI GROUP-COMP SI FUND, \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED FEBRUARY 10, 2026 \n \nHearing conducted on Friday, December 19, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant is Pro Se, of Marion, Arkansas.  \n \nThe Respondents  were represented by Mr. Guy  Alton  Wade,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non September 25, 2025.  A hearing on the motion was conducted on December 19, 2025, in Forrest \nCity, Arkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a seasonal gin laborer. The date for \nClaimant’s  alleged  injury  was  on October 29,   2024. This   incident   was   reported   to   the \nRespondent/Employer on October 30, 2024. Admitted into evidence was Respondents’ Exhibit 1, \npleadings, and correspondence, consisting of 11 pages, and Commission Ex. 1, emails, and U.S. \nMail return receipts, consisting of 5 pages, as discussed infra. \n\nFRANCO, AWCC No. H501893 \n \n2 \n \nThe record reflects on March 26, 2025, a Form AR-C was filed by Claimants then-attorney, \nMark  Peoples, purporting  that  Claimant sustained an injury to  his right  knee  in  a  work-related \nincident. On April  2,  2025,  a  Form  AR-1  was  filed  with  the  Commission noting  that Claimant \ninjured his right knee while descending a ladder. On April 2, 2025, a Form AR-2 was filed denying \ncompensability on the grounds that the alleged injury did not occur during employment.     \nClaimant’s then-attorney, Mr. Peoples, filed a Motion to Withdraw as Counsel on August \n25,  2025.   Mr. People’s motion  was  granted  on September  17,  2025. The  Respondents filed  a \nmotion  to  dismiss  for  lack  of  prosecution on  September  25,  2025. The  Claimant  was  sent, on \nOctober 1, 2025, notice of the Motion to Dismiss, via certified and regular U.S. Mail, to his last \nknown address. The certified motion notice was claimed by Claimant as noted on the October 10, \n2025,  return  receipt. This  notice was  also  sent regular  U.S.  Mail and did  not  return  to  the \nCommission. Despite  this,  the  Claimant  did not respond  to  the  Motion,  in  writing,  as  required. \nThus, in accordance with applicable Arkansas law, the Claimant was mailed due and proper legal \nnotice of Respondents’ Motion to Dismiss hearing date at hIS current  address  of  record  via  the \nUnited States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and \nregular First-Class Mail, on November 3, 2025. The certified notice was claimed as noted by the \nNovember 10, 2025, return receipt. Likewise, the hearing notice sent regular First-Class was not \nreturned to the Commission. The hearing took place on December 19, 2025. And as mentioned \nbefore, the Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n\nFRANCO, AWCC No. H501893 \n \n3 \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the December  19, \n2025, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was claimed by Claimant, per the return postal notice bearing the November 10, 2025, date. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \nAR-C on March 26, 2025. Since then, he has failed to request a bona fide hearing. Therefore, I do \nfind by the preponderance of the evidence that Claimant has failed to prosecute his claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \n\nFRANCO, AWCC No. H501893 \n \n4 \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5909,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H501893 GABRIEL LARA FRANCO, EMPLOYEE CLAIMANT LINDSEY GIN CO., EMPLOYER RESPONDENT AGRI GROUP-COMP SI FUND, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 10, 2026 Hearing conducted on Friday, December 19, 2025, before the Arkansas Workers’ Compensation Commi...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:31:58.288Z"},{"id":"alj-H301532-2026-02-10","awccNumber":"H301532","decisionDate":"2026-02-10","decisionYear":2026,"opinionType":"alj","claimantName":"Brandon Jackson","employerName":"Producers Rice Mill, Inc","title":"JACKSON VS. PRODUCERS RICE MILL, INC. AWCC# H301532 February 10, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JACKSON_BRANDON_H301532_20260210.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACKSON_BRANDON_H301532_20260210.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H301532 \n \nBRANDON L. JACKSON, EMPLOYEE        CLAIMANT \n \nPRODUCERS RICE MILL, INC., EMPLOYER                    RESPONDENT \n \nFARMINGTON CASUALTY CO./ TRAVELERS, \nCARRIER/TPA                    RESPONDENT \n \n \nOPINION FILED 10 February 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 14 January 2026 in Little Rock, Arkansas. \n \nThe claimant appeared pro se. \n \nFriday, Eldredge & Clark, LLP, Mr. Guy Alton Wade, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 14 January 2026. This case relates to an accepted compensable \nworkplace injury that occurred on or about 9 October 2022. The record from the hearing \nconsists of the transcript; Respondents’ Exhibit No 1, which consisted of ten pages of \ndocuments and pleadings in support of their motion; and Commission’s Exhibit No 1, two \npages that included a Form AR-C filed by the claimant and a Postal Service delivery receipt \nfrom Commission correspondence with the claimant.  \nThe evidence showed that the claimant filed a Form AR-C through counsel on 6 \nMarch 2024. The respondents filed a First Report of Injury indicating an injury had been \nreported to them on 9 October 2022. They subsequently filed a Form AR-2 indicating that \nthe claim was accepted and that benefits were being paid accordingly.  \nClaimant’s then-counsel later sought to be relieved from the matter; and the Full \nCommission entered an Order to that end on 30 August 2024. \n\nB. Jackson- H301532 \n2 \n \nOn 6 November 2025, the respondents requested that this claim be dismissed for \nwant of prosecution under the Commission Rule at 11 C.A.R. § 25-110(d). They noted that \nhe had not requested a hearing on any issue ripe for litigation. Their exhibit evidenced that \na payment for permanent partial disability benefits had been paid as part of the claim. \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of a hearing on the \nrespondents’ motion was sent in the same manner. The claimant appeared at the hearing \nand objected to the dismissal of his claim. He argued that he believed that he was entitled \nto additional benefits beyond those that had already been provided \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence does not preponderate in favor of finding that the claimant has \nfailed to prosecute his claim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby denied without prejudice. \n \n5. The claimant has requested a hearing on whether he is entitled to additional \nbenefits. \n \n6. This claim will proceed to a hearing on the merits. \n \nDISCUSSION \nThe respondents appeared on 14 January 2026 and presented their motion. As \nargued by the respondents at the hearing, 11 C.A.R. § 25-110(d) provides for a dismissal for \nfailure to prosecute an action upon application by either party and reasonable notice. As \n\nB. Jackson- H301532 \n3 \n \nnoted above, notice of the respondents’ motion and notice of the scheduling of the hearing \nwas provided to the claimant. \nThe claimant appeared to argue against the dismissal of his claim. While he \nacknowledged that some benefits had been paid, including a payment for permanent partial \ndisability benefits, the claimant stated that he believed that he was entitled to additional \nbenefits. He requested a hearing while on the record and confirmed his contact information \nso that the parties could conduct discovery. Based on the evidence presented, a dismissal is \nnot appropriate at this time. The claimant was advised that as a pro se litigant, he would be \nexpected to communicate with the respondents in their collaborative efforts to advance the \nclaim to a hearing. \nPrehearing questionnaires will immediately be provided to the parties so that this \nmatter may proceed to a hearing on the merits. \nORDER \n The Motion to Dismiss is denied without prejudice. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4564,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H301532 BRANDON L. JACKSON, EMPLOYEE CLAIMANT PRODUCERS RICE MILL, INC., EMPLOYER RESPONDENT FARMINGTON CASUALTY CO./ TRAVELERS, CARRIER/TPA RESPONDENT OPINION FILED 10 February 2026 Heard before Arkansas Workers’ Compensation Commission (“the Commission...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:32:00.363Z"},{"id":"alj-G802688-2026-02-09","awccNumber":"G802688","decisionDate":"2026-02-09","decisionYear":2026,"opinionType":"alj","claimantName":"Rosa Hernandez","employerName":"Department Of Human Services","title":"HERNANDEZ VS. DEPARTMENT OF HUMAN SERVICES AWCC# G802688 February 09, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HERNANDEZ_ROSA_G802688_20260209.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HERNANDEZ_ROSA_G802688_20260209.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G802688 \n \nROSA HERNANDEZ, Employee CLAIMANT \n \nDEPARTMENT OF HUMAN SERVICES, Employer RESPONDENT NO. 1 \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n \n \n OPINION FILED FEBRUARY 9, 2026 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant represented by LAURI THOMAS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents No.  1 represented  by CHARLES  MCLEMORE,  Attorney  at  Law, Little \nRock, Arkansas. \n \nRespondents No.  1 represented  by CHRISTY  L.  KING,  Attorney  at  Law, Little  Rock, \nArkansas; not appearing at hearing. \n \n \n \n STATEMENT OF THE CASE \n \n On January  14,  2026,  the  above  captioned  claim  came  on  for  a  hearing  at \nSpringdale,  Arkansas.      A  pre-hearing  conference  was  conducted  on November  19, \n2025,  and  an amended pre-hearing  order  was  filed  on December  15,  2025. A  copy  of \nthe Pre-hearing Order has been marked Commission's Exhibit No. 1 and made a part of \nthe record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n\nHernandez – G802688 \n \n-2- \n1.    The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  the \nwithin claim. \n2.  Prior Full Commission Opinion of September 10, 2019, is final. \n3. Claimant was released at maximum medical improvement by Dr. Blankenship \non March 2, 2023. \n4.  Respondents  have  accepted  and  paid  claimant  permanent  partial  disability \nbenefits based on a 21% impairment rating. \nThe issues to be litigated at the forthcoming hearing are as follows: \n1.    Claimant’s  entitlement  to  permanent  total  disability  benefits,  or  in  the \nalternative wage loss. \n2. Attorney’s fee. \nThe claimant contends “claimant sustained a compensable injury while working \nfor Respondent on or about February 12, 2018. At that time, Claimant was in the course \nand scope of her employment with Respondent and as lifting a child when she felt pain \nin her low back and tailbone. \nDr. Blankenship was the authorized treating physician to first treat claimant. Rosa \nhas  failed  conservative  treatment  multiple  times  consisting  of  injections  and  physical \ntherapy. Dr. Blankenship performed a right SI fusion in December 2019, a left S1 fusion \nin January 2020. \nDr. Blankenship then did a lumbar fusion in May 2021. After attempting some PT, \nand then some injections with continued pain with Dr. Cannon, Claimant was referred to \nDr. Sites by Dr. Blankenship for further evaluation and treatment. \n\nHernandez – G802688 \n \n-3- \nClaimant   was   treating   with   Dr.   Sites   since   September   2021.   Dr.   Sites \nrecommended surgery on January 20, 2022 to claimant’s right hip in the form of a right \nIT  band  release,  Greater  Trochanteric  (GT)  Bursectomy  and  Piriformis  Release  which \nClaimant had in September 2022. Claimant then did physical therapy. \nDr.  Blankenship  stated  she  is  at  MMI  for  surgical  intervention  and  it  no  way \nmeans that she is fully recovered. In the future she may very well need to have further \ninjections or piriformis otherwise. \nClaimant  had  a  Functional  Capacity  Evaluation  on  01/09/2023.  Dr.  Blankenship \nassigned claimant a 21% impairment to the body as a whole on 03/02/23. \nDr. Blankenship noted he would recommend that she get back in to see Dr. Sites \nfor the left-hand side which can raise her impairment rating to the body as a whole. \nDr. Blankenship gave our client the permanent restrictions of a 25-pound weight-\nlifting  restriction  with  no  sedentary  work  and  no  prolonged  sitting,  no  prolonged \nstanding, no twisting and bending at the waist. \nClaimant  has  received  some  injections  from  Dr.  Cannon.  Claimant  is  also  still \nwaiting for the piriformis release recommended by Dr. Blankenship to be performed by \nDr Yakin, because Dr. Sites is no longer practicing. \nOur   client   attended   a   Vocational   Rehab   meeting,   applied   with   various \nemployments, to which a job offer has not been extended to her. \nRespondents have controverted Claimant’s right to wage loss disability benefits \nand or in the alternative, PTD benefit.  \nClaimant recently did an FCE on 07/23/2025 to which claimant scored a 50 out of \n50 consistency.” \n\nHernandez – G802688 \n \n-4- \nRespondents No. 1 contend “that the claimant reported an injury to her low back \nand  right  elbow  occurring  February  12,  2018,  which  the  Respondents  No.  1  accepted, \nand benefits including medical and indemnity have been and continue to be provided to \nor on behalf of the claimant by Respondent No. 1. \nThis claim was the subject of a prior hearing on April 10, 2019 with an opinion of \nthe Administrative Law Judge dated May 6, 2019 and decision of the Full Commission \ndated September 10, 2019 which is now a final decision, res judicata and the law of the \ncase. \nThat  decision held  that  the  claimant  was not  entitled  to additional  TTD  benefits, \nbut was entitled to the “additional medical treatment from Dr. Blankenship. This includes \nhis proposed surgery.” The proposed surgical procedure included in that award was \nfusion of the SI joint by Dr. Blankenship. The claimant has been provided this treatment, \nshe underwent surgery on the right SI joint on December 3, 2019, and on the left SI joint \non  January  14,  2020.  After  these  procedures  the  claimant  underwent  lumbar  fusion \nsurgery by Dr. Blankenship at L4-5, L5-S1 on May 12, 2021. The claimant has also had \ninjections  by  Dr.  Robert  Cannon.  The  claimant  underwent  right  hip  iliotibial  band \nrelease, greater trochanteric bursectomy and piriformis release on September 28, 2022 \nby Dr. Terry Sites. On December 15, 2022, Dr. Sites released the claimant at MMI with \nno recommendation of surgery at this time and no permanent restrictions or permanent \nimpairment. \nThe   claimant   was   released   at   maximum   medical   improvement   by   Dr. \nBlankenship on March 2, 2023, at which time he assigned the claimant 21% anatomical \n\nHernandez – G802688 \n \n-5- \nimpairment  to  the  body  as  a  whole  for  all  of  her  surgeries.  Respondent  has  accepted \nthis impairment rating and has paid PPD benefits to the claimant for this rating. \nThe  claimant  performed  unreliably  at  a  Functional  Capacity  Evaluation  on \nJanuary  9,  2023  in  the  Sedentary  classification  of  work,  with  only  30  out  of  53 \nconsistency  measures.  Subsequently,  when  Dr.  Blankenship  released  the  claimant  at \nMMI  on  March  2,  2023,  h  assigned  work  restrictions  of  25  pound  weight  lifting \nrestriction, no prolonged sitting, standing, twisting and bending at the waist. \nThe  claimant  has  been  provided  with  medical  treatment  subsequent  to  her \nrelease, including treatment and injections by Dr. Cannon. The claimant has not had the \nleft  side  piriformis  release  because  she  pursued  injections  instead,  which  have  been \nprovided  to  her.  After  demanding  an  injection  in  her  back,  the  claimant  was  provided \nwith  a  follow  up  appointment  with  Dr.  Cannon  on  January  14,  2025  where  he \nrecommended  an  injection  in  her  bilateral  SI  joint,  even  though  she  already  had  the \nfusion.  This  injection  was  authorized  by  Respondent  and  provided  for  the  claimant  on \nJanuary 29. The claimant is now seeking LESI injections with Dr. Cannon, which have \nbeen  provided  by  Respondent  No.  1.  The  claimant  continues  to  receive  injections, \nprovided   by   Respondent,   including   bilateral   SI   joint   injections   and   sacral   hiatus \ninjections, which the claimant has benefited from. No surgery is recommended for her at \nthis time. The claimant tested reliably in the Sedentary classification of work at another \nFCE on July 23, 2025. \nThe Respondents No. 1 contend that the claimant, age 51, cannot establish that \nshe  is unable  to  earn any meaningful  wages  at  the  same  or other employment,  and  is \ntherefore not permanently totally disabled. The Respondent No. 1 further contends that \n\nHernandez – G802688 \n \n-6- \nthe  claimant  cannot  meet  her  burden  of  proving  that  she  is  owed  permanent  disability \nbenefits  in  excess  of  her  permanent  anatomical  impairment  rating.  The  claimant,  who \nhas a family business and had contended to be permanent totally disabled in April 2023, \nhas  been  provided  vocational  rehabilitation  but  contends  that  she  has  not  returned  to \nwork. \nDiscovery is ongoing in this claim and the Respondents reserve the right to raise \nadditional  contentions,  or  to  modify  those  stated  herein,  pending  the  completion  of \ndiscovery.” \nRespondent No. 2 contends if the claimant is found to be permanently and totally \ndisabled, the Trust Fund stands ready to commence weekly benefits in compliance with \nA.C.A.  §11-9-502.  Therefore,  the  Trust  Fund  has  not  controverted  the  claimant’s \nentitlement to benefits. \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on November 19, 2025, and contained in an amended pre-hearing order filed \nDecember 15, 2025, are hereby accepted as fact. \n 2. Claimant has failed to meet her burden of proving by a preponderance of the \nevidence that she is permanently totally disabled as a result of her compensable injury. \n\nHernandez – G802688 \n \n-7- \nClaimant has met her burden of proving by a preponderance of the evidence that she is \nentitled  to  permanent partial  disability  benefits  in  an  amount  equal  to  50%  to  the body \nas a whole for a loss in wage earning capacity. \n 3. Respondent has controverted claimant’s entitlement to payment of permanent \npartial disability benefits in an amount equal to 50% to the body as a whole. \n \nFACTUAL BACKGROUND \n Claimant  is  a  51-year-old  woman  who  began  working  for  respondent  as  a \nprogram  assistant  in  February  2017.  Her  job  duties  included  picking  up  children  from \nschool or daycare and taking them for supervised visits with family members. She also \nassisted  clients  with  housekeeping;  took  them  to  and  from  therapy  appointments;  and \nset up therapy appointments.  \n Claimant suffered an admittedly compensable injury to her back on February 12, \n2018, when she fell in a parking lot after returning to the office from picking up a child. \nClaimant had pain in her low back and tailbone area that continued to worsen during the \ncourse  of  the  day.  She  initially  received  medical  treatment  from  Washington  Regional \nMedical  Center  before  treating  with  her  family  physician,  Dr.  Anna  Eremieva.  Dr. \nEremieva  eventually  ordered  an  MRI  scan  which  revealed  degenerative  disc  disease \nand  disc  bulges  at  L4-L5  and  L5-S1.  Thereafter,  claimant  received  conservative \ntreatment  which  included  physical  therapy;  injections;  and  medication.  Claimant  was \nalso  evaluated  by  Dr.  Luke  Knox,  neurosurgeon,  who  indicated  that  he  had  nothing  to \noffer the claimant and recommended that she undergo a functional capacity evaluation. \nThe FCE was performed and numerous inconsistencies were noted. On September 28, \n\nHernandez – G802688 \n \n-8- \n2018, Dr. Knox released claimant from his care and indicated that claimant was capable \nof performing sedentary work. \n After  her  release  by  Dr.  Knox,  claimant  filed  for  and  received  a  change  of \nphysician to Dr. Blankenship. Dr. Blankenship ordered a second MRI scan and opined \nthat claimant’s issues were caused by her SI joint and he referred her to Dr. Cannon for \nan SI joint injection. Respondent denied additional medical treatment recommended by \nDr. Blankenship and a hearing was conducted on April 10, 2019. In an opinion filed May \n6, 2019, this administrative law judge found that claimant had met her burden of proving \nby  a  preponderance  of  the  evidence  that  she  was  entitled  to  additional  medical \ntreatment from Dr. Blankenship. It was also determined that claimant had failed to prove \nentitlement  to  additional  total  temporary  disability  benefits  from  November  26,  2018, \nthrough a date yet to be determined. That opinion was appealed and was affirmed and \nadopted by the Full Commission in an opinion filed September 10, 2019. \n Thereafter,  claimant  continued  to  treat  with  Dr.  Blankenship  who  performed  a \nright SI joint arthrodesis on December 3, 2019, and a left SI joint arthrodesis on January \n14,  2020.  Dr.  Blankenship  also  performed  an  arthrodesis  at  L4-L5  and  L5-S1  on  May \n12, 2021.  Claimant also  underwent a  piriformis  release  by  Dr. Sites  on  September  28, \n2022,  and  was  released  from  his  care  on  December  15,  2022.  The  parties  have \nstipulated   that   claimant   was   released  at  maximum  medical   improvement  by   Dr. \nBlankenship  on  March  2,  2023,  and  that  respondent  has  accepted  and  paid  claimant \npermanent partial disability benefits based upon a 21% impairment rating to the body as \na whole. \n\nHernandez – G802688 \n \n-9- \n Since  the  time  of  her  release  by  Dr.  Blankenship  claimant  has  continued  to \nreceive pain management treatment in the form of injections from Dr. Cannon. As of the \ndate of the hearing respondent had continued to pay for that medical treatment.  \n Claimant has filed this claim contending that she is permanently totally disabled, \nor in the alternative, that she is entitled to permanent partial disability benefits for wage \nloss as a result of her compensable injury.  \n \nADJUDICATION \n Claimant contends that as a result of her compensable injury she is permanently \ntotally  disabled.  Pursuant  to  A.C.A.  §11-9-519(e),  in  order  to  be  entitled  to  permanent \ntotal  disability  benefits  claimant  has  the  burden  of  proving  by  a  preponderance  of  the \nevidence  that  because  of  her  compensable  injury  she  has  an  inability  to  earn  any \nmeaningful wages in the same or other employment.  \n After  reviewing  the  relevant  wage  loss  factors  in  this  claim,  I  find  that  claimant \nhas failed to prove that she is permanently totally disabled but instead, find that she is \nentitled to payment of permanent partial disability benefits in an amount equal to 50% to \nthe body as a whole for a loss in wage earning capacity. \n In  considering  whether  claimant  is  entitled  to  permanent  disability  benefits  in \nexcess  of  her  permanent  physical  impairment  rating,  the  Commission  may  take  into \naccount   various   factors   including   the   percentage   of   permanent   impairment,   the \nclaimant’s age, education, work experience, and all other matters reasonably expected \nto affect her future earning capacity. A.C.A. §11-9-522(b)(1). \n\nHernandez – G802688 \n \n-10- \n First,  I  note  that  no  treating  physician  has  opined  that  claimant  is  incapable  of \nworking.  In  a  report  dated  February  6,  2023,  Dr.  Blankenship  indicated  that  claimant \ncould  return  to  work  with  restrictions  of  no  lifting  over  25  lbs.;  no  prolonged  sitting, \nstanding, walking, bending, or twisting; no stooping, climbing, or crawling. He reiterated \nthese restrictions in his report of March 2, 2023. \n More than two years after this report by Dr. Blankenship, the claimant underwent \na   second   functional   capacity   evaluation   on   July   23,   2025.   The   evaluation   was \ninterpreted  as  reliable  with  50  of  50  consistency  measures  within  expected  limits.  The \nevaluation  determined  that  claimant  was  capable  of  returning  to  work  in  the  sedentary \nclassification of work. Claimant’s ability to lift was limited to 10 lbs. with both her right \nand left upper extremities and an occasional bi-manual lift/carry of 10 lbs. \n Prior  to  the  second  FCE,  claimant  was  evaluated  by  a  rehabilitation  specialist, \nKeondra Hampton. Hampton did not have the benefit of the second FCE but did identify \nvarious jobs for the claimant. Claimant applied for many of these jobs as well as other \njobs;  however,  she  was  unable  to  obtain  employment.  Even  though  claimant  was \nunable  to  obtain  employment  at  these  particular  jobs,  I  nevertheless  find  that  claimant \nhas the capacity to become employed at sedentary work. \n As  previously  noted,  the  claimant  is  51  years  old.  The  June  26,  2023,  rehab \nevaluation  indicates  that  claimant  obtained  her  GED  in  1994  and  that  she  attended \nWestern Business College in Portland, Oregon, for bookkeeping training. Claimant also \nhad an insurance license from 2005 through 2009.  \n Claimant’s prior job experience also indicates that she is capable of sedentary \ntype work. From 2003 through 2008 the claimant worked as a claims clerk for Payless \n\nHernandez – G802688 \n \n-11- \nInsurance.  Thereafter,  from  2009  through  2010  the  claimant  owned  and  operated  a \ndaycare  center  out  of  her  home.  From  2016  through  2017  claimant  worked  for \nInterpreters Unlimited, translating between patients and physicians. From 2011 through \n2014  claimant  worked  for  Ozark  Guidance  Centers  translating  counseling  sessions  for \nstudents and therapists. In 2010 claimant translated for patients in Washington Regional \nMedical  Center.  Finally,  claimant  worked  as  a  program  specialist  for  the  respondent \nwhere  her  duties  included  picking  up  children  from  school or  daycare  and  taking  them \nfor  supervised  visits  with  family  members  and  assisting  clients  by  taking  them  to  and \nfrom therapy appointments.  \n Notably,  the  rehabilitation  specialist  identified  various  transferrable  skills  of  the \nclaimant.  These  included  the  preparation  of  financial  documents,  reports,  or  budgets; \ndetermining resource needs; maintaining operational records; preparing documentation \nfor   contracts,   transactions,   or   regulatory   compliance;   reviewing   documentation; \ninterpreting/effective communication.  \n At  the  hearing,  claimant  testified  that  she  and  her  husband  previously  shared \nownership of a landscaping business. Claimant is currently separated from her husband \nand no longer has any ownership interest in that business. In connection with her prior \nwork  for  the  landscaping  business  claimant  not  only  performed  physical  labor  but  also \nused her phone to deposit checks. In fact, claimant testified that she used her phone to \ncomplete  job  applications  sent  to  her  by  the  vocational  rehabilitation  specialist  as  well \nas other jobs which she applied for on her own. \n I also note that respondent introduced into evidence videos from 2022 and 2023. \nThe video from 2022 is before claimant was released by Dr. Blankenship. With respect \n\nHernandez – G802688 \n \n-12- \nto the 2023 video, I do not see any activity on the video which contradicts claimant’s \ntestimony or violates her work restrictions.  \n In short, I do not find that claimant has proven that she suffers a total incapacity \nto earn wages. As previously noted, none of claimant’s treating physicians have opined \nthat she is permanently totally disabled. Instead, Dr. Blankenship indicated that claimant \ncould return to work with restrictions. Approximately two years after her release by Dr. \nBlankenship  claimant  underwent  an  FCE  which  was  reliable  and  determined  that \nclaimant  was  capable  of  performing  work  in  the  sedentary  classification  of  work.  A \nreview of claimant’s prior jobs indicates that she has skills which would enable her to \nperform sedentary type work. Although the claimant has a significant impairment rating \nin  an  amount  equal  to  21%  to  the  body  as  a  whole,  I  find  based  upon  the  evidence \npresented that claimant is capable of performing sedentary type work and find that she \nhas suffered a loss in wage earning capacity in an amount equal to 50% to the body as \na whole. \n \nAWARD \n Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  she  is \npermanently  totally  disabled  as  a  result  of  her  compensable  injury.  Instead,  I  find  that \nclaimant is entitled to permanent partial disability benefits in an amount equal to 50% to \nthe  body  as  a  whole  based  upon  a  loss  in  wage  earning  capacity.  Respondent  has \ncontroverted claimant’s entitlement to permanent partial disability benefits in an amount \nequal to 50% to the body as a whole. \n\nHernandez – G802688 \n \n-13- \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.   Also pursuant to A.C.A. §11-9-715(a)(1)(B), an attorney fee is not \nawarded on medical benefits. \nAll sums herein accrued are payable in a lump sum and without discount.  This \naward shall bear interest at the maximum legal rate until paid. \nRespondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $1,021.00. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":22000,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G802688 ROSA HERNANDEZ, Employee CLAIMANT DEPARTMENT OF HUMAN SERVICES, Employer RESPONDENT NO. 1 PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED FEBRUARY 9, 2026 Hearing b...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["back","lumbar","hip"],"fetchedAt":"2026-05-19T22:31:54.061Z"},{"id":"full_commission-H301244-2026-02-06","awccNumber":"H301244","decisionDate":"2026-02-06","decisionYear":2026,"opinionType":"full_commission","claimantName":"Maurice Adams","employerName":"Performance Food Group, Inc","title":"ADAMS VS. PERFORMANCE FOOD GROUP, INC. AWCC# H301244 February 06, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Adams_Maurice_H301244_20260206.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Adams_Maurice_H301244_20260206.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H301244  \n \nMAURICE ADAMS, \nEMPLOYEE \n \nCLAIMANT \nPERFORMANCE FOOD GROUP, INC.,  \nEMPLOYER \n \nRESPONDENT \nINDEMNITY INSURANCE CO. OF N. AMERICA/ \nCORVEL ENTERPRISE CO., INC., TPA \n \n \nRESPONDENT \nOPINION FILED FEBRUARY 6, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE RICK BEHRING, JR., \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nOctober 14, 2025.  The administrative law judge found that the respondents \nproved the claimant should submit to an Independent Medical Evaluation.  \nAfter reviewing the entire record de novo, the Full Commission affirms the \nadministrative law judge’s opinion.  The Full Commission directs the \nclaimant to present for an Independent Medical Examination to be \nperformed by Dr. Wayne Bruffett in accordance with Ark. Code Ann. §11-9-\n511(Repl. 2012).       \nI.  HISTORY \n\nADAMS - H301244  2\n  \n \n \n The record indicates that Maurice B. Adams, now age 63, treated at \nConcentra on April 26, 2022.  It was noted that the “injury date” was March \n14, 2022, and it was noted, “Positive MRI for severe stenosis at C6 with \ncentral and lateral nerve root compression.”  Dr. Scott Carle assigned work \nrestrictions, and he planned a referral to Dr. Brad A. Thomas.  The record \nindicates that the claimant underwent an Anterior Cervical Diskectomy and \nFusion at C6-7 in July 2022.   \n A Senior Claims Specialist signed a Form AR-2, EMPLOYER’S \nINTENT TO ACCEPT OR CONTROVERT CLAIM, on February 23, 2023.  \nThe Senior Claims Specialist reported on the Form AR-2 that the Date of \ninjury was March 14, 2022, and that the Body Part Injured was “L elbow, R \nknee, Neck”  \n Dr. Thomas’ impression on October 25, 2023 was “Neck Pain” and \n“Cervicalgia.”  An associated diagnosis was “Herniated Disc.”  It was noted \nat Little Rock Neurosurgery Clinic on December 12, 2024, “We do think he \nis at MMI (maximum medical improvement).” \n Dr. Thomas reported on December 13, 2024: \nMr. Adams is a patient of mine and I saw him on 12/12/2024.  \nI am going to place him at MMI on that date and give him an \nimpairment rating based on the spinal cord injury that he has \nhad after his surgery.  This will be based on two different \nimpairments and then using a combination table.  The first \nimpairment is an impairment of 30% of the whole person \nbased on station and gait impairment criteria.  This states the \n\nADAMS - H301244  3\n  \n \n \npatient can rise to a standing position and can maintain it with \ndifficulty but cannot walk without assistance.   \nThe second impairment criteria (sic) is for two impaired upper \nextremities, which will give 19%.  This is, the patient can use \nboth upper extremities for self-care, grasping and holding but \nhas difficulty with digital dexterity.  When you go to the \ncombination chart, this gives him a total of 43% impairment \nrating.   \nIf you have any questions, please do not hesitate to contact \nme anytime.   \n \n Dr. Thomas stated on December 17, 2024, “Mr. Adams can not \nreturn to work.  I believe he is permanently disabled.”   \nThe record contains a CLAIMANT’S RESPONSE TO PRE-\nHEARING QUESTIONNAIRE served on March 19, 2025.  The claimant \ncontended, “In the course and scope of his employment, the Claimant \nsustained compensable injuries to his neck and back on or about March 14, \n2022.  The Claimant was placed at MMI on or about September 19, 2024.  \nRespondents only paid TTD through 2/16/2024.  Dr. Thomas has assigned \nthe claimant a 43% impairment rating.  Respondents have not paid anything \ntowards the rating.  Dr. Thomas has opined that the Claimant cannot work \nand he is permanently disabled.  The Claimant contends that he is \npermanently and totally disabled or, in the alternative, is entitled to wage \nloss.  The Claimant’s attorney is entitled to attorney’s fees on all \ncontroverted indemnity benefits.  All other issues are reserved.”   \n On April 15, 2025, the respondents served a “RESPONDENTS’ \nMOTION FOR INDEPENDENT MEDICAL EXAMINATION AND \n\nADAMS - H301244  4\n  \n \n \nINCORPORATED BRIEF IN SUPPORT.”  The respondents stated, among \nother things, that the claimant “sustained compensable injuries to the neck, \nright upper extremity, and right lower extremity as a result of a specific \nincident on May 14, 2022....The Respondents have controverted the \nimpairment rating of 43% to the body as a whole....The Respondents have \nrequested an independent medical examination (“IME”) to be performed by \nDr. Wayne Bruffett[.]...The Respondents request the IME to address the \nClaimant’s current permanent anatomical impairment, work restrictions (if \nany), and future medical care.”  The claimant objected to the respondents’ \nmotion. \n A hearing was held on August 19, 2025.  At that time, the \nrespondents’ attorney stated that the respondents had accepted \ncompensability for an injury to the claimant’s neck, right arm, and right leg.  \nCounsel stated that the respondents had paid “some impairment” following \nDr. Thomas’ assessment of a 43% rating.   \n An administrative law judge filed an opinion on October 14, 2025.  \nThe administrative law judge found that the claimant should submit to an \nindependent medical evaluation by Dr. Wayne Bruffett in accordance with \nunder Ark. Code Ann. §11-9-511 (Repl. 2012).  The claimant appeals to the \nFull Commission.   \nII.  ADJUDICATION \n\nADAMS - H301244  5\n  \n \n \n Ark. Code Ann. §11-9-511 (Repl. 2012) provides, in pertinent part: \n(a)  An injured employee claiming to be entitled to \ncompensation shall submit to such physical examination \nand treatment by another qualified physician, designated \nor approved by the Workers’ Compensation Commission, \nas the commission may require from time to time if \nreasonable and necessary. \n(b) The places of examination and treatment shall be \nreasonably convenient for the employee.   \n \nAn administrative law judge found in the present matter, “2.  \nRespondents have proven by the preponderance of the evidence that \nClaimant should submit to an independent medical evaluation by Dr. Wayne \nBruffett under Ark. Code Ann. §11-9-511 (Repl. 2012) because such is \nreasonable and necessary.  Claimant will work with the Respondents to \nexpedite this evaluation.”   \nThe Full Commission finds that an examination with Dr. Bruffett is \nreasonably necessary.   \nThe limited record before the Commission shows that the claimant \nsustained a work-related accident on or about March 14, 2022.  There are \nto date no formal stipulations with regard to compensability.  Neither the \nadministrative law judge nor the parties submitted into the record a pre-\nhearing order showing the parties’ contentions.  The attorneys did state at \nthe hearing that the claimant sustained a compensable injury on March 14, \n2022.   \n\nADAMS - H301244  6\n  \n \n \nIn any event, the claimant underwent surgery, and Dr. Thomas \neventually assigned the claimant a 43% permanent anatomical impairment \nrating.  The respondents did not accept a 43% anatomical impairment rating \nbut did begin paying “some impairment.”  The claimant subsequently \ncontended that he was entitled to the full 43% rating along with permanent \ntotal disability benefits.   \nThe respondents now request that the claimant submit to an \nIndependent Medical Examination with Dr. Bruffett.  We find that the \nrespondents’ request is reasonable in accordance with Ark. Code Ann. §11-\n9-511(a)(Repl. 2012).  We direct the claimant to participate in an \nIndependent Medical Examination to be performed by Dr. Wayne Bruffett.  \nThe place of examination shall be reasonably convenient for the claimant \npursuant to Ark. Code Ann. §11-9-511(b)(Repl. 2012).  The Full \nCommission finds that the Independent Medical Examination is not contrary \nto the Court of Appeals’ holding in Burkett v. Exxon Tiger Mart, 2009 Ark. \nApp. 93, 304 S.W.3d 2, because the parties have not yet “litigated their \ncase.”   \nThe Full Commission therefore directs the claimant to present for an \nIndependent Medical Examination to be performed by Dr. Wayne Bruffett in \naccordance with Ark. Code Ann. §11-9-511(Repl. 2012). \n \n\nADAMS - H301244  7\n  \n \n \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n     \n \n \nCommission Willhite dissents.","textLength":8659,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H301244 MAURICE ADAMS, EMPLOYEE CLAIMANT PERFORMANCE FOOD GROUP, INC., EMPLOYER RESPONDENT INDEMNITY INSURANCE CO. OF N. AMERICA/ CORVEL ENTERPRISE CO., INC., TPA RESPONDENT OPINION FILED FEBRUARY 6, 2026","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["cervical","knee","neck","herniated","back"],"fetchedAt":"2026-05-19T22:29:43.827Z"},{"id":"full_commission-H302750-2026-02-06","awccNumber":"H302750","decisionDate":"2026-02-06","decisionYear":2026,"opinionType":"full_commission","claimantName":"Kevin Briggs","employerName":"Utc Railcar Repair Services, LLC","title":"BRIGGS VS. UTC RAILCAR REPAIR SERVICES, LLC AWCC# H302750 February 06, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Briggs_Kevin_H302750_20260206.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Briggs_Kevin_H302750_20260206.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H302750 \n \n KEVIN BRIGGS, EMPLOYEE  CLAIMANT \n \nUTC RAILCAR REPAIR SERVICES, LLC,  \nEMPLOYER RESPONDENT \n \nOLD REPUBLIC INSURANCE COMPANY/ \nCONSTITUTION STATE SERVICES, LLC, \nINSURANCE CARRIER/TPA RESPONDENT \n \n \nOPINION FILED FEBRUARY 6, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents represented by the HONORABLE R. SCOTT ZUERKER, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed August 5, 2025.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The  Arkansas  Workers’  Compensation  Commission  has \njurisdiction over this claim. \n \n2. I  hereby  accept  the  above-mentioned  proposed  stipulations  as \nfact.  \n \n3. The Claimant proved by a preponderance of the credible evidence \nthat  he  sustained  a  compensable  injury  to  his  left  shoulder  on \n\nBRIGGS - H302750  2\n  \n \n \nMarch  16,  2023,  during  and  in  the  course  and  scope  of  his \nemployment with UTC.  \n \n4. The Claimant proved by a preponderance of the credible \nevidence that all the medical treatment of record was reasonably \nnecessary in connection with the left shoulder injury received by \nhim. No further medical treatment has been recommended for the \nClaimant’s left shoulder injury. \n \n5. The Claimant proved his entitled to temporary total disability \ncompensation from April 28, 2023, through and until September \n23, 2024. \n \n6. The Claimant proved by a preponderance of the evidence that he \nsustained a 5% whole person permanent impairment for his left \nshoulder injury.  \n \n7. The Claimant proved by a preponderance of the credible \nevidence that he sustained wage loss disability in the amount of \n22%.  \n \n8. The parties stipulated that the Respondents have controverted \nthis claim in its entirety. Therefore, the Claimant’s attorney is \nentitled to a controverted attorney’s fee on the indemnity benefits \nawarded to the Claimant herein.  \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed.  Specifically, we find from a preponderance \nof the evidence that the findings made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n\nBRIGGS - H302750  3\n  \n \n \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(a)(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \n\nBRIGGS - H302750  4\n  \n \n \n I must respectfully dissent from the majority’s finding that the \nclaimant is entitled to a five percent (5%) permanent impairment rating and \nwage-loss disability of twenty-two percent (22%).  \nI. The claimant should be limited to the two percent (2%) \nwhole person impairment rating assigned by Dr. Sharp. \n \n\"Permanent impairment\" has been defined as \"any permanent \nfunctional or anatomical loss remaining after the healing period has \nended.\"  Carrick v. Baptist Health, 2022 Ark. App. 134, 643 S.W.3d 466 \n(2022).  \nAny determination of the existence or extent of physical impairment \nmust be supported by objective and measurable physical or mental \nfindings.  Ark. Code Ann. § 11-9-704(c)(1)(B).  \"Objective findings\" are \nthose findings which cannot come under the voluntary control of the patient. \nArk Code Ann. § 11-9-102(16)(A)(ii)(a).  Complaints of pain are not to be \nconsidered objective medical findings.  Ark. Code Ann. § 11-9-\n102(16)(A)(ii)(a); Reed v. First Step, Inc., 2019 Ark. App. 289, 577 S.W.3d \n424 (2019).  \nThe Commission is authorized to decide which portions of the medical \nevidence to credit and to translate this evidence into a finding of permanent \nimpairment using the AMA Guides.  Thus, the Commission may assess its own \nimpairment rating rather than rely solely on its determination of the validity of \nratings assigned by physicians.  Carrick, 2022 Ark. App. 134, 643 S.W.3d 466 \n\nBRIGGS - H302750  5\n  \n \n \n(2022).  \nIn weighing the evidence, the Commission may not arbitrarily disregard \nmedical evidence or the testimony of any witness.  Sheridan Sch. Dist. v. Wise, \n2021 Ark. App. 459,637 S.W.3d 280 (2021).  However, the Commission has the \nauthority to accept or reject medical opinions.  Williams v. Ark. Dept. of \nCommunity Corrections, 2016 Ark. App. 427, 502 S.W. 3d 530 (2016). \nFurthermore, it is the Commission's duty to use its experience and expertise in \ntranslating the testimony of medical experts into findings of fact and to draw \ninferences when testimony is open to more than a single interpretation.  Id. \nIn the present matter, the claimant received two whole person \nimpairment ratings.  The first was provided by Dr. Richard Sharp on \nSeptember 25, 2024, and the second was provided by Dr. Joe Huggins on \nApril 8, 2025.  In her opinion, the ALJ disregards Dr. Sharp’s evaluation, \nbecause it “does not take into account all of the Claimant’s resulting deficits \nfrom his compensable left shoulder injury.”  However, none of the deficits \nnoted in Dr. Huggins’s evaluation are anatomical in nature but rather are \nnon-compensable subjective complaints.  In his evaluation, Dr. Huggins \nnotes: \nHe rated his left shoulder pain as 3/10, \nand states that it varies from 3/10 two \n(sic) 8/10.  He states that lifting causes \nincreased pain.  He estimates that his left \nupper extremity strength is approximately \n55-60% of his preinjury strength.  He \n\nBRIGGS - H302750  6\n  \n \n \nstates that he has tingling in his thumb, \nmiddle finger, and ring finger of his left \nhand.  He states that he did not have this \nsymptom prior to his injury, so he thinks it \nis related to the shoulder injury.  He feels \nthat he has plateaued in his recovery. \n \nWith regard to activities of daily living Mr. \nBriggs indicates that he has difficulty \nputting on and taking off pullover shirts \nand coats.  He states that he has difficulty \ndrying his back with a towel.  He states \nthat he drives with his right hand only on \nthe wheel.  He states that he can mow his \nlawn on the riding mower, but cannot we \neat (sic) or use lawn tools such as a chain \nsaw.  He states that he cannot lay on his \nleft side.  He states that lifting any \nweights, including groceries, causes \nincreased discomfort and swelling in his \nleft shoulder.  He states that he cannot \nhold his dog on a leash with his left hand. \n \nEach of these complaints by the claimant is subjective and there are \nno objective findings in the record to support their inclusion in Dr. Huggins’s \nreport.  In fact, Dr. Huggins’s evaluation notes that the claimant’s ongoing \ncomplaints are “mild to moderate left shoulder pain and weakness.”  These \nsubjective complaints are an insufficient basis upon which to grant Dr. \nHuggins’s evaluation greater weight. \nOn the other hand, Dr. Sharp conducted a detailed physical \nexamination, finding: \nThe claimant moves on off and on (sic) \nthe exam table with ease.  No left upper \nextremity spasm or atrophy noted.  Deep \n\nBRIGGS - H302750  7\n  \n \n \ntendon reflexes are 1+ at biceps, triceps, \nand brachioradialis.  Sensation to pinprick \nis intact throughout the upper extremities. \nMotor strength is 5/5 at right shoulder, \nelbow, and grip.  Motor strength is 5/5 at \nleft elbow flexion and extension, left grip, \nshoulder internal rotation, adduction, \nforward flexion and 4/5 left external \nrotation and abduction.  No ataxia noted \nin the upper extremities.  Fine motor \ncoordination is normal at both hands. \nFully closes bilateral fists.  Right elbow \nrange of motion is 140 degrees flexion \nand 0 degrees extension.  Right pronation \n80 degrees and 80 degrees supination.  \nLeft elbow is 140 degrees flexion and 0 \ndegrees extension.  Left pronation is 80 \ndegrees and 80 degrees supination.  \nRight Shoulder range of  motion is 180 \ndegrees forward flexion and 50 degrees \nextension. Right abduction is 180 \ndegrees and 50 degrees adduction.  \nRight internal rotation is 90 degrees and \n90 degrees external rotation.  Left \nshoulder is 180 degrees forward flexion \nand 50 degrees extension.  Left \nabduction is 90 degrees and 50 degrees \nadduction. Left internal rotation is 90 \ndegrees and 90 degrees external rotation.  \nMild tenderness noted at the left \nsubacromial area and biceps proximally. \nNo warmth, crepitus, redness or effusion \nnoted.  Left empty can sign mildly \npositive.  Left Neer’s test negative. \nHawkin’s Test negative.  Left Speeds test \nslightly positive.  Yergason’s test slightly \npositive.  Externally rotated and supinated \narm against resistance positive. \nTenderness ad bicipital groove.  Cross \nbody adduction test negative. \nApprehension test negative.  No crepitus \nleft shoulder.  Well healed left shoulder \n\nBRIGGS - H302750  8\n  \n \n \nscars. \n \nIn contrast, Dr. Huggins’s report does not contain the extensive \ndetailed revealed in Dr. Sharp’s evaluation. \nFor these reasons, it is clear that the Commission should grant \ngreater weight to Dr. Sharp’s clear, detailed, and objective findings on the \nclaimant’s permanent impairment.  Dr. Huggins is limited by his focus on the \nclaimant’s subjective complaints, and his opinion therefore should be \nafforded less weight.  Because Dr. Sharp’s findings are clearly more \naccurate, the claimant should be limited to a two percent (2%) whole body \npermanent impairment rating. \nII. The claimant is not entitled to wage loss benefits. \n When a claimant sustains an injury not scheduled in Ark. Code Ann. \n§ 11-9-521, permanent disability benefits are controlled by Ark. Code Ann. \n§ 11-9-522(b)(1), which states:  \nIn considering claims for \npermanent partial disability \nbenefits in excess of the \nemployee's percentage of \npermanent physical \nimpairment, the Workers' \nCompensation Commission \nmay take into account, in \naddition to the percentage \nof permanent physical \nimpairment, such factors as \nthe employee's age, \neducation, work experience, \nand other matters \n\nBRIGGS - H302750  9\n  \n \n \nreasonably expected to \naffect his or her future \nearning capacity. \n \n Other factors may include but are not limited to motivation to return \nto work, post-injury earnings, credibility, and demeanor.  Curry v. Franklin \nElectric, 32 Ark. App. 168, 798 S.W.2d 130 (1990).  \nTherefore, when a claimant has been assigned an anatomical \nimpairment rating to the body as a whole, the Commission may increase \nthe disability rating and find a claimant permanently disabled based upon \nwage-loss factors.  Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 \nS.W.3d 449 (2005).  \nThe wage-loss factor is the extent to which a compensable injury has \naffected the claimant's ability to earn a livelihood.  Enterprise Products \nCompany v. Leach, 2009 Ark. App. 148, 316 S.W.3d 253 (2009).  \nOur courts also consider the claimant’s motivation to return to work \nsince lack of interest in pursuing employment impedes the assessment of \nthe claimant's loss of earning capacity.  Logan County v. McDonald, 90 Ark. \nApp. 409, 206 S.W.3d 258 (2005).  \nThe Commission may use its own superior knowledge of industrial \ndemands, limitations, and requirements in conjunction with the evidence to \ndetermine wage-loss disability.  Taggart v. Mid America Packaging, 2009 \nArk. App. 335, 308 S.W.3d 643 (2009). \n\nBRIGGS - H302750  10\n  \n \n \nHere, the claimant is fifty-three years old with a high school \neducation.  After graduating from high school in 1992, the claimant served \nas a volunteer firefighter for approximately eighteen years, and obtained \ncertifications and training related to that field during that time.  The claimant \ntestified that he has approximately eighteen to twenty years of experience \nin welding and maintenance work. \nPresently, the claimant acknowledges that he can lift, carry, and \nmanage fifteen pounds.  While he does not subjectively believe that he can \nreturn to work as a welder, the claimant testified that he believes he could \nmanage driving a forklift or office type work and has submitted around \nseventeen job applications for these kinds of positions.  He continues to \nlook for work. \nIn her opinion, the ALJ relies on the fact that the claimant has not \nreceived any responses to his ongoing applications as the basis for granting \nhim twenty-two percent (22%) wage loss.  This is premature.  The claimant \nhas a clear desire to return to work and is qualified for a variety of roles. \nThere is no indication that the claimant will be unable to return to the work \nforce at any point.  There is simply no basis on which to grant the claimant \nwage loss when he is ready, willing, and able to return to work. \nAccordingly, for the reasons set forth above, I respectfully dissent. \n                                                   \n\nBRIGGS - H302750  11\n  \n \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":14240,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H302750 KEVIN BRIGGS, EMPLOYEE CLAIMANT UTC RAILCAR REPAIR SERVICES, LLC, EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE COMPANY/ CONSTITUTION STATE SERVICES, LLC, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 6, 2026 Up...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","back"],"fetchedAt":"2026-05-19T22:29:43.839Z"},{"id":"alj-H404600-2026-02-06","awccNumber":"H404600","decisionDate":"2026-02-06","decisionYear":2026,"opinionType":"alj","claimantName":"Dena Mclevain","employerName":"Spring Creek Health & Rehab","title":"MCLEVAIN VS. SPRING CREEK HEALTH & REHAB AWCC# H404600 February 06, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MCLEVAIN_DENA_H404600_20260206.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCLEVAIN_DENA_H404600_20260206.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: H404600 \n  \nDENA S. MCLEVAIN, EMPLOYEE CLAIMANT \n \nSPRING CREEK HEALTH & REHAB,   \nEMPLOYER                                                                                                            RESPONDENT    \n                                        \nARKANSAS SELF-INSURED TRUST FUND/ \nCANNON COCHRAN MANAGEMENT SERVICES, INC.,  \nCARRIER/TPA                                                                                                          RESPONDENT  \n \n \nOPINION FILED FEBRARY 6, 2026 \n             \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the Honorable Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented  by the Honorable Melissa  Wood, Attorney at  Law,  Little  Rock, \nArkansas. \n \n          STATEMENT OF THE CASE \nOn November 12, 2025, the above-captioned claim came on for a hearing in Little Rock, \nArkansas.  Previously, a pre-hearing telephone conference was held on this matter on August 27, \n2025.   That same day, I entered a Pre-hearing Order following my telephone conference with the \nparties.  Said  order was admitted into evidence along with the parties’ respective pre-hearing \ninformation filings as well as Commission’s Exhibit 1 without objection. \nStipulations \nDuring the pre-hearing telephone conference, and/or at the time of the hearing, the parties \nagreed to the following stipulations, which I found to be reasonable and applicable in this case: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \n claim. \n\nMcLevain - H404600 \n2 \n \n 2.  The employee-employer-insurance carrier relationship existed on or about April 7,                       \n  2024, when the Claimant sustained a compensable work injury to her left ankle.  \n           3.           The  Respondents  accepted  this  claim  as  compensable  and  have  paid  appropriate \n medical benefits. \n          4.        The Claimant’s average weekly wage on the day of her injury was $417.25.  Her  \n \n            compensation rates are $278.00 and $209.00.       \n           \n5.        The Respondents have controverted this claim for additional benefits in the form of  \n \n           temporary total disability compensation. \n \n6.        Therefore, all issues not litigated herein are reserved under the Arkansas Workers’  \n \n           Compensation Act.  \nIssues \n The parties agreed to litigate the following issues: \n1. Whether the Claimant is entitled to additional temporary total disability from May \n  \n1, 2024, until November 21, 2024 (with the exception of the period she worked \n \nat Dollar General).    \n \n2. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \n \nContentions \n \n The Claimant’s and Respondents’ contentions are set forth in their respective response to \nthe Pre-hearing Questionnaire.  Said contentions are as follows: \nClaimant: \nThe  Claimant  contends  that  she  sustained an admittedly compensable  left  ankle/foot \ninjuries on April 7, 2024.  The Claimant contends entitlement to payment of temporary disability \nbenefits beginning May 1, 2024, through November 21, 2024, (except for a short period of time \n\nMcLevain - H404600 \n3 \n \nwhen  she  worked  for  Dollar  General  in  a  part-time  capacity).   These  benefits  have  been \ncontroverted for purposes of attorney’s fees.  \nThe  Claimant’s  attorney  respectfully  requests  that  any  attorney’s fees  owed  by  the \nClaimant on controverted benefits paid by award or otherwise be deducted from the Claimant’s \nbenefits and paid directly to the Claimant’s attorney by separate check, and that any Commission \nOrder direct the Respondents to make payment of attorney’s fees in this manner. \nRespondents: \nThe Respondents contend that all appropriate benefits have been and are continuing to be \npaid with regard to this matter.  As indicated above, the Claimant was released as having reached \nmaximum medical improvement with Dr. Martin on November 21, 2024.  The Respondents have \nno medical documentation taking the Claimant off work subsequent to her full duty release and, \nas such, deny her entitlement to ongoing temporary disability benefits.  This will be re-evaluated \nin the event the Claimant’s counsel is able to  produce  medical  documentation  supporting  his \nassertion regarding temporary total disability/TTD entitlement. \nPursuant to the Respondents’ letter to my office on October 8, 2025, they amended their \ncontentions  to  state,  in  relevant part: ... Claimant is seeking TTD from May 1, 2024, through \nNovember  21,  2024.    Respondents  were  providing  light  duty  work  to  Claimant,  but  she  was \nterminated for cause.  As such, it is our position that she would not be entitled to TTD during the \ntimeframe sought.”  \n                     FINDINGS OF FACT AND CONCLUSIONS OF LAW \nAfter  reviewing  the record  as  a  whole, including  the  medical  reports, the documentary \nevidence, and other matters properly before the Commission, and after having had an opportunity \nto listen to the testimony of each witness and observe their demeanor, I hereby make the following \n\nMcLevain - H404600 \n4 \n \nfindings  of  fact  and  conclusions  of  law in  accordance  with  Ark.  Code  Ann. §11-9-704  (Repl. \n2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.     The proposed stipulations set forth above are hereby accepted. \n \n          3.         The Claimant proved by a preponderance of the credible evidence her entitlement to  \n \n           temporary total disability compensation from May 1, 2024, through November 21,  \n   \n           2024 (except for the days she returned to work).  \n               \n          4.          The parties stipulated that the Respondents have controverted this claim for additional \n \n                      temporary total disability benefits.  Therefore, the Claimant’s attorney is entitled to a  \n \n           controverted attorney’s fee. \n  \n         5.         All issues not litigated herein or addressed in this Opinion are reserved under the Act.    \n                \nSummary of Evidence \nThe hearing witnesses were the Claimant, Dena S. McLevain, and Tommi Kirkland.  \n            The record consists of the hearing transcript of November 12, 2025, and the exhibits held \ntherein.  In addition to the Pre-hearing Order discussed above, the exhibits admitted into evidence \nin  this  case consisting  of Claimant’s  Exhibit 1which  includes the  Claimant’s documentary \nevidence of medical records and  the non-medical documents consisting of 99 numbered pages, \nexclusive of two index pages; Respondents ‘Exhibit 1 consisting of 14 numbered pages of medical \nrecords; and Respondents’ Exhibit 2 comprising of 10 numbered pages of non-medical records, \nexclusive of the cover sheet.      \nTestimony  \n As of the date of the hearing, the Claimant was 47 years of age.  She has some technical \ncollege  and holds other  assistive  medical certification.    According  to  the Claimant,  on  April  7, \n\nMcLevain - H404600 \n5 \n \n2024, she was working for the respondent employer, Spring Creek Health and Rehab, when she \nsustained  injuries to  her  left  leg, ankle, and  foot area.   At  that  time,  she  had  worked  for  Spring \nCreek since March 8, 2024, as a certified nursing assistant/CNA.  \n The Claimant’s employment duties entailed direct care for the residents.  Specifically, she \nassisted patients with their activities of daily living and hygiene care, such as showers, brushing \ntheir  hair  and  teeth, nail  care,  and  with their meals, and  other  personal  hygiene needs.    She \nconfirmed  that  she  had  to  help  with  the  physical handling  and  mobility  of the  patients.    The \nClaimant testified that they had to do a lot of transferring patients back and forth between their \nbeds, wheelchairs, and other assistive devices.  \n On  the  day  of  her work-related injury,  the  Claimant testified  that  she hurt  herself  while \nmoving a resident up in the bed.  She testified her work injury occurred as she and another aide \nwere  trying  to move  a resident  to  a  comfortable  position  in  the  bed.    The  Claimant  explained \nprecisely how her ankle injury happened: “When I stepped – because you step when you move – \nyou have to lift them off of the bed where they’re no longer making contact, and then slide them \nup towards the pillow, and you step in that process, and when I stepped, my ankle popped seven \ntimes.”   \n The Claimant received  medical treatment after her injury took place.  She was taken off \nwork beginning May1.  According to the Claimant, she tried to go back to work after checking \nwith her workers’ compensation doctor.  Per the Claimant, she was told not to lift another person \nor do any heavy lifting, which amounts to light duty work.  The Claimant confirmed that she made \nmanagement aware of her restrictions and they worked with her for a while.   According to the \nClaimant, during this period of time, she had to be careful not to put undue weight on her ankle.  \nShe confirmed that Spring Creek allowed her to perform her employment duties from a wheelchair.  \n\nMcLevain - H404600 \n6 \n \nThe Claimant testified that the HR manager and her supervisor both said she needed to perform \nher  work  duties  from  a wheelchair.    She explained that during  that  time, management had  her \nmaking beds, doing nail care, which she was unable to do successfully.  The Claimant claimed that \nher list of duties included chasing patients down to get their blood pressure before a certain time \nin  the  morning.   She essentially testified  that  this  made  it  difficult  for  her  to  achieve her  work \nresponsibilities from a wheelchair.   \n She was asked to describe what happened during the meeting regarding her termination.  \nSpecifically, per the Claimant, she was called into the HR manager’s office, which is very small \nroom.  The Claimant explained: \nA.  ... and there were five or six people.  There was the Director, the Administrator, \nDirector of Nursing, Assistant Director of Nursing, the HR Manager, and my supervisor \nwere all in this room, and I believe it was the Administrator was telling me I had a write-\nup from two months ago  -- two months before that time frame; another write-up from three \nmonths  before  that  time frame;  another  write-up  from  three  weeks  before  that  time;  and \nthen one from that very day. \n \n The Claimant testified that she was told for those reasons she was going to be terminated.  \nShe testified that management told her she needed to sign the documentation.  According to the \nClaimant, she has worked in management previously, and her experience has taught her that when \nyou write someone up, you have a conversation with them when the event occurs.  The Claimant \nessentially testified  that  you  do  not  wait  two  months  after the  alleged  incident to  bring  up  the \nreason for writing them up because you need for the person to correct their behavior of what they \nare  doing  incorrectly.  She  testified  that  only  one  of  these  write  ups  were  relevant  because  the \nother  two  were  outdated.    Although  the  Claimant  has gained a  lot  of  experience  working  in \nmanagement,  she  confirmed  that  she  was  not  working  in  management  at that  time of  her \ntermination.  However, the Claimant testified that she managed a martial arts school for four years \nand a Smoothie King for two years.   \n\nMcLevain - H404600 \n7 \n \n Counsel asked the  Claimant  to  explain how her  termination meeting with  management \nended.  The Claimant answered: \nThe  meeting  was  concluded  when  it  was  clear  that  I  was  definitely  terminated.  \nThere  was  no  discussion.   They weren’t open to hearing any explanation, right?  \nThere was no guidance.  There wasn’t any counseling, you know, “Dena’s, this is \nwhat you are doing wrong.  This is what we do we need you to do better.  We’ll \nfollow-up with you in a certain timeframe.”  There wasn’t-- none of that done.  I \nwas just fired, and so I got up to dismiss myself and when I did, I was told that I \nhad to sign those three, and I said, “I’m fired and those are outdated.”  \n \nShe confirmed that on page 99 of her exhibit, the document is entitled “Termination of  \n \nEmployment” which has a checkmark indicating  that  she  was  discharged  due  to “Inability to \nPerform.” She confirmed that after she was terminated, she applied for jobs at various places.  The \nClaimant  confirmed  that she had  some stints  of  employment at McDonald’s.   However,  the \nClaimant confirmed  that  she had some difficulty  with  that  job  physically.   Specifically,  she \ntestified, “When they wanted me to reach up and grab the boxes off of the top shelf -- sometimes \nsomeone would help me but this one particular day one of the managers had an issue with it.” She \nadmitted  that  during  this  period  of  time  and  even  continuing  now,  she  has  continued  to  receive \nmedical treatment for her injury.  The Claimant admitted that she was aware that she was found to \nbe  at  maximum  medical recovery  for  her  injury in  November  2024  by  her  treating  physician.  \nAccording to the Claimant, she continues to receive medical treatment for her injury.  However, \nthe Claimant confirmed she is paying for her current medical care with her own personal insurance \nbecause the insurance people would not authorize her for additional treatment.  \n On cross-examination, the Claimant confirmed that the Respondents took her deposition \non August 8, 2025.  The Claimant confirmed that on April 7, 2024, the day of her injury, she was \nmoving a patient from the bottom of the bed up toward the top of it.  Her injury happened when \nshe picked up her right foot to step and felt a pop in her left foot.  The Claimant explained that it \n\nMcLevain - H404600 \n8 \n \nbegan  before  that,  but in  moving the  patient  from  the  foot  to the head  of the  bed, her “ankle \npopped.”  She agreed that she worked on light duty for Spring Creek from April 7, the date of her \ninjury up  until  May  1.    During  this  time,  the  Claimant  confirmed  that  she underwent a  lot  of \nphysical therapy.  She admitted that some of her physical therapy appointments were taken during \nher work shift.  The Claimant further admitted that during her deposition testimony, she testified \nthat she did well on light duty because she only had to cut the patients’ nails and roll the silverware.  \n Regarding her termination, the Claimant confirmed that Tommi Kirkland, the Director of \nNursing, was present in the office on the day (May 1) of her termination.  She agreed that during \nthis meeting she was told she had three write-ups, and she told them to skip the first two because \nshe wanted the dates.  At that point, the Claimant testified that she wanted to focus on the recent \nwrite-up,  which  was from  that  morning.  She  admitted  that  when  she  testified  during  her \ndeposition, she stated that she did not know what the other two write-ups were for and she did not \nread them.    \n The Claimant admitted that she worked at Dollar General following her termination.  She \nconfirmed  that  she  testified during  her  deposition that  she had  worked there  for a  month,  from \nearly September until early October.  However, the Claimant explained that later that later Dollar \nGeneral confirmed  that she had  worked  there  for only three weeks.   Per  the  Claimant,  she  quit \nworking there because she was being harassed by her manager.  According to the Claimant, her \nmanager was aware that she had reported her to management for stealing from the store.    \n Nevertheless,  under  further  questioning,  the  Claimant  confirmed  that  she  had  difficulty \nwith  the  job  physically  because  she  had  to  stand  at  the  register  and  stock  nearby  shelves.    She \ntestified that she was allowed to handle the small packages.  Her working hours were from noon \nuntil 4:00 p.m., four days a week.  The Claimant confirmed that she continued to apply for jobs at \n\nMcLevain - H404600 \n9 \n \nvarious places.  She confirmed that she worked at McDonald’s for a short period of time.  Next, \nthe Claimant started working at Home Instead, in July 2025.  However, the Claimant no longer \nworks at Home Instead.  According to the Claimant, she left that job because her ankle had not \ncompletely healed and she believed the patients were putting her at a fall risk.  Per the Claimant, \nshe was afraid of reinjuring her ankle while all of this was still going on, or in general.  \n As of the date of the hearing, the Claimant was not working.  Counsel for the Respondents \nshowed the Claimant one of Dr. Martin’s medical reports dated September 13, 2024.  Although \nthis report indicated that the Claimant told them that she continued to have some tightness, and \nthat her  pain  had  resolved,  the  Claimant  denied  that  this was  not correct.    Per  this  report,  the \nClaimant was asking to go back to full duty work at that point.  The Claimant explained that she \nalways wanted to go back to full-duty work.  However, the Claimant testified that this was not a \nconversation she had with Dr. Martin and she does not know why this information would be in the \nreport.  The  Claimant  confirmed  that  she  was  aware  that  Dr. Martin released  her  to  full  duty \nwithout any restrictions on September 13, 2024.    \nOn redirect examination, the Claimant again confirmed that she worked for Dollar General \nfor about three months and had to leave because her manager was piling work duties on her, which \nshe  was  unable  perform  after  she  reported  her  for  stealing.   According  to  the Claimant,  she \ninformed upper  management  about  what  was  going  on  because  they  have  a  zero  tolerance  for \nharassment.  Per the Claimant, although management told her they would take care of it, they did \nnot do anything and as a result, she removed herself before hurting herself further.  She worked \n20 hours a week at Dollar General.  Her hourly rate of pay was $11.00 an hour.  The Claimant \ndid not recall her exact pay while working for Spring Creek.  However, she testified that the pay \nwas very similar to what she was making at Dollar General. \n\nMcLevain - H404600 \n10 \n \n  Tommi Kirkland  \n \n  Ms. Kirkland testified that she is the Director of Nursing at Spring Creek Health.  She is \nresponsible for the supervision of the entire Nursing Department.  According to Ms. Kirkland, her \njob duties entail supervising the duties of the positions for the nursing/medical staff including the \nregistered nurses, licensed practical nurses, certified nursing assistants, and nurse assistants.  Ms. \nKirkland confirmed that in her position, she is involved in work-related injuries for the company \nwhen employees are released to return to work with physical restrictions.  She confirmed that it is \ntheir policy to provide accommodation for workers’ compensation cases.  Ms. Kirkland verified \nthat she is familiar with the Claimant.  She has worked for Spring Creek since September of 2018.   \n Next, Ms. Kirkland was shown a copy of Respondents’ Exhibit No. 2.  She confirmed that \nthis  was  a  list  of  duties  based  off of the Claimant’s restrictions while on light duty work.  Ms. \nKirkland testified that her CNA supervisor modified the Claimant’s job duties based off her \nupdated paperwork.  On June 6, 2024, Dr. Martin indicated that the Claimant’s physical restrictions \nincluded  no  more  than  20  minutes  of  standing  per  hour,  no  climbing  ladders,  or  stairs.    She \nexplained that they had the Claimant’s original paperwork of what her job duties were, and then \nshe went back for an appointment and brought back new restrictions.  According to Ms. Kirkland, \nat first the Claimant was working with crutches, and afterwards they talked about the standing no \nlonger than 20 minutes, and that is when they offered her the wheelchair.  Ms. Kirkland specifically \ndenied that she asked the Claimant to do anything outside of her physical restrictions.    \n She testified that the Claimant was making the same pay while working on light duty.  Ms. \nKirkland  confirmed  that  had  the  Claimant  not  been  terminated, she  would have  been  able  to \ncontinue working on light duty until she was released to full duty.  Although Ms. Kirkland was \n\nMcLevain - H404600 \n11 \n \nunable to recall whether the Claimant was terminated on May 1, she confirmed that she was in the \noffice and involved in the termination process.   \n Ms. Kirkland confirmed that page 4 of the exhibit is dated April 30, 2024.  This form says \nthat the Claimant was cited for “poor work performance” because she left snacks in the residents’ \nrooms unopened/and or not offered to them.  She explained that this means the snacks were passed \nbut they were left on the table or near the resident and were not opened or offered to the resident.  \nAccording to Ms. Kirkland, the facility provides snack rotations for the residents showing weight \nloss and/or with diabetes.  She testified that the company violation against the Claimant indicates \nthat when she dispersed the snacks to the residents, she left them on the table or near the resident \nand they were unopened or not offered to the resident. \n Next, Ms. Kirkland was shown page 5 of the exhibit and asked to read over it and explain \nwhy  it  was a violation  of  policy.   Specifically,  she insisted that  the  Claimant  did  not  chart  the \nsnacks that she passed prior to leaving at the end of her shift.  It reads: “States on the 29th  that her \ncharting log-in did not work and that she was told by her supervisor to see HR or HR Director on \nApril 30/4-30 in the morning to fix it, but the employee failed to do so.  States that on April 29/4-\n29 that she had been charting under someone else’s long-in, which is a violation of policy.  Ms. \nKirkland explained that this was a violation of policy in the form of false documentation.   \n On page 6 of the exhibit, again it reads: “Poor work performance.”  She explained that the \nClaimant  violated  company policy because she did  not complete  her  job  duties  of clipping  and \nfiling the nails and  shaving  for  both  the  men  and  women,  and  the non-diabetic  residents.   Ms. \nKirkland explained that older women must be shaved because unfortunately, they tend to grow a \nlittle bit of hair as they get older in age.  She confirmed that she does not dispute that all three of \nthe policy violations are dated the same date, April 30.  Per Ms. Kirkland, a lot of this has to do \n\nMcLevain - H404600 \n12 \n \nwith  timing.    According  to  Ms.  Kirkland,  the  Claimant  had  a  lot  of doctors’ appointments  and \nphysical  therapy  treatments,  which  made  it exceedingly  difficult to  sit  down  and  do  this.    She \nclaimed that they normally do not conduct disciplinary actions over the phone.  Per Ms. Kirkland, \ntheir  policy  is  to go  over  policy  violations on  an  in-person  basis  and  there  is  always  a  witness \ninvolved.   \n Ms.  Kirkland  confirmed  that  the  next  page  is  7, and it is  entitled “Termination  of \nEmployment,” and it is checked that it was an involuntary termination and the other check reads, \n“Inability to Perform.”  Ms. Kirkland testified that there was a list of reasons for terminating an \nemployee, and the one that most closely explained why they were terminating the Claimant was \nchecked.  However, she denied that the Claimant was terminated due to her work-related injury, \nbecause they  had  accommodated  her  light  duty  work  restrictions.    Instead,  Ms.  Kirkland \nmaintained that the Claimant was terminated due to her failure to perform her job duties.   \n On cross-examination, Ms. Kirkland again confirmed that all three write-ups were dated \nApril 30, 2024.  She confirmed that at least the first items had taken place weeks before April 30.  \nMs. Kirkland also confirmed that the Claimant was not made aware of these things until April 30, \n2024.  She confirmed that although there were a number of reasons given for the Claimant being \nfired, but the singular reason given was inability to perform.  Ms. Kirkland refused to confirm or \ndeny  that  the  Claimant  was  given  the  opportunity  to  explain  the  write-ups  because  it  was \ndocumentation all piled up at one time after the fact. \n Under redirect examination, Ms. Kirkland testified that the Claimant was hired on March \n8, 2024, and the date of the occurrence was April 30; therefore it would have been impossible for \nthe  write-ups  to  be  something  from  two  months  ago as  the  Claimant  had maintained.    She \nconfirmed that the write-ups actually occurred on April 30, 2024, with one of them having occurred \n\nMcLevain - H404600 \n13 \n \non April 29.  Ms. Kirkland confirmed that she believes it was well documented about the Claimant \nhaving failed to perform her job duties leading to her termination.  She confirmed that the Claimant \ncould have been terminated for falsifying documentation based solely on this policy violation.  \n  On recross examination, Ms. Kirkland asserted that the Claimant should have been able to \nperform her job duties from her wheelchair within an 8-hour period.  \n  Medical Evidence  \n A review of the medical records shows that on April 7, 2024, the Claimant was seen at the \nCabot Emergency Hospital with a clinical indication of pain, after her left ankle popped at work.  \nThe  Claimant  underwent  an  XR  of  her  left  ankle,  with  an  impression  of:  No  fracture  or \ndislocation.” Notes from this procedure show that this document was electronically signed by Amit \nMittal, MD.  He recommended that if there is continued concern, follow-up with radiographs or \nMRI should be considered for more complete assessment.  The Emergency Department provider \nwas Dr. Brian C. Baird.  He provided the Claimant with special instructions to return if worsening \nor  increasing  symptoms  and  recommended  that  the  Claimant  follow-up  with  her  primary  care \nphysician.  According to these records, Dr. Baird placed the Claimant on light duty work starting \non April 7.  Dr. Baird specifically instructed the Claimant to refrain from weight-bearing in left \nleg/ankle until cleared by a physician or other medical provider.  \n On April 26, 2024, the Claimant sought medical treatment from a clinic at UAMS, in Little \nRock, Arkansas under the care of Dr. Robert Daniel Martin.  At that time, Dr. Martin ordered an \nMRI of the Claimant’s left ankle before making any recommendations. \n An MRI was performed of the Claimant’s left ankle on May 6, 2024, the following \nImpression: \n 1. Chronic tear of the anterior talofibular ligament with scarring. \n 2. Mild tenosynovitis of the tibial posterior and mild sprain of the  \n\nMcLevain - H404600 \n14 \n \n            deltoid ligament.  \n 3. Subtle T2 hyperintense single with trace fatty infiltration in the  \n visualized soleus and flexor hallucis longus muscle, suggesting  \n denervation changes. \n 4. Incidentally noted 3.6 x 1.4 cm benign subcutaneous lipoma in \n  the medial aspect of hindfoot.   \n \n The Claimant returned to Dr. Martin’s office for  a  follow-up  visit on  May  6, 2024, for \nevaluation of her left lower extremity following her MRI.  She provided Dr. Martin with a history \nof having injured her ankle on April 7 at work while lifting a patient on her tip toes.  According to \nthis  report,  the Claimant  stated  that  she felt  a  distinct  pop  in  the  posteromedial  ankle  and  had \nimmediate pain and difficulty with bearing weight.  The Claimant further reported that she was in \na wheelchair, and then she went to crutches for several days.  At that time, the Claimant was in \nregular shoes but was experiencing pain with standing and/or walking.  Dr. Martin found that on \nphysical examination the Claimant was able to do a single heel rise, but this produced pain, she \nhad tenderness with deep palpation of the posterior tibial tendon.  She was nontendered laterally.  \nDr. Martin opined that the MRI of the Claimant’s left ankle was reviewed and interpreted by him \nand  was  consistent  with  some  tendinitis,  tenosynovitis  of  the  posterior  tibial  tendon.    No  intra-\narticular  abnormality  noted.   His assessment was “Posterior tibial tendinitis left side workers’ \ncompensation following injury/sprain.” Dr.  Martin  recommended  that  the  Claimant  use  a  boot \nwalker immobilization for a month and placed her on light duty work.  He also gave her physical \nrestrictions of no standing more than 20 minutes of standing per hour, no climbing ladders or stairs, \nand  she  must  be  able  to  wear  her  boot walker.   At  that  point,  Dr.  Martin planned to  start  the \nClaimant on physical therapy and placed her in a lace-up ankle brace.   \n It appears that on May 7, 2024, the Claimant contacted via a telephone call to Dr. Martin’s \noffice for a copy of his medical notes directing her to wear a boot, and his official diagnosis. \n\nMcLevain - H404600 \n15 \n \n On June 6, 2024, the Claimant returned to Dr. Martin’s office for a follow-up visit of her \nleft  ankle  posterior  tibial  tendon  spur.   The  Claimant  reported  some  improvement  with  boot \nimmobilization; she was still having some posteromedial pain with prolonged standing.  Per these \nclinic  notes,  the  Claimant  had  been  doing  some  home  exercises.   Dr.  Martin’s assessment  was \n“Workers’ compensation, left ankle sprain, posterior medial improved but still not completely \nbetter.” He  recommended  that  the  Claimant  continue  to  wear  the  boot  walker,  ankle  support \northosis and start formal physical therapy.  Also, Dr. Martin continued the Claimant’s light duty \nwork restrictions.  He opined that the Claimant was not yet at maximum medical improvement. \n Also, on June 6, 2024, the Claimant underwent initial evaluation for physical therapy at \nOrtho  Rehab  &  Specialty  Centers  Farrer  Physical  Therapy  due  to  her  left  ankle  injury.   Joseph \nFarrer, physical therapist, evaluated the Claimant.  She complained of severe left ankle pain.  The \nphysical therapist observation included “Antalgic gait pattern.  Decreased WB on involved side \nankle brace.”  He noted that on Palpation: “Tenderness.  Patient has an increased of tenderness to \ntouch  in  the  following  structures: Anterior ankle ATF.”  Farrer stated that the Claimant was \neducated  about  her  injury  and  was  involved  in  the  development  of  goals.    He  opined  that  the \nClaimant had a good prognosis with PT.  Possible talar subluxation.”  Farrer recommended that \nthe Claimant undergo physical therapy sessions three times a week, for four weeks with treatment \nto consist of Medical Exercise Training, Home Exercise Program, and Patient Education. The first \ntreatment   included   full   tissue   examination,   patient   education,   general,   and   coordination \ncombination activity. \n The Claimant underwent physical therapy sessions from June 6 through July 9, 2024.  \n Dr.  Martin  saw  the  Claimant  in  follow-up  clinic  for  her  compensable  injury  on  July  12, \n2024.  The Claimant reported that physical therapy had improved her symptoms.  However, she \n\nMcLevain - H404600 \n16 \n \nwas  still  complaining  of  some  anterior  and  posteromedial  ankle  pain,  but  still  she  had  some \ninability to jump.  Dr. Martin recommended that she continue therapy for another month.  He also \ncontinued  her  light-duty  work  restrictions  and  stated  that on the  next  visit  he  would  anticipate \nreleasing her to full duty without restriction.  However, Dr. Martin opined that he did not anticipate \na permanent partial impairment rating.  \n The  Claimant  continued  with  her  physical  therapy sessions directed  by  Dr.  Martin  from \nJuly 15, 2024, through August 2,2024. \n Dr.  Martin  saw  the Claimant  on  August  9, 2024, in  a  follow-up  clinic for  her  left  ankle \ninjury.  She reported that she was working with formal physical therapy and was slowly improving.  \nHowever,  the  Claimant  stated  that  she  still  cannot  step up stairs  reliably  and  that  after  15  to  20 \nminutes she had enough pain to justify sitting down.  At that time, the Claimant was not back at \nwork, but  she continued  on  light  duty.    Left  ankle  examination  by  Dr.  Martin  revealed  that  the \nClaimant had tenderness across the ankle mortise, posterior tibial tendon, and pain with positive \nsingle left leg raise.  His assessment was “45-year-old female, workers compensation, left posterior \ntibial tendon strain.” Dr. Martin continued the Claimant on formal physical therapy and directed \nher to return to work on light duty restrictions, which included standing for 30 minutes to an hour \nwith no climbing stairs or ladders. \n Following her office visit with Dr. Martin, the Claimant continued  with formal physical \ntherapy sessions from August 13, 2024, through September 5, 2024. \n   On September 5, 2024, the Claimant was seen for a final follow-up evaluation at the Ortho \nRehab & Specialty Center Farrer Physical Therapy due to pain in her left ankle and joints of the \nleft  foot.    At  that  time, Farrer,  authored  a  Discharge Note.  Farrer stated that  the  Claimant was \ncompliant with her physical therapy sessions and no longer complained of pain.     \n\nMcLevain - H404600 \n17 \n \n  Dr.  Martin  evaluated the  Claimant on  September  13, 2024, due to her  workers’ \ncompensation  injury  of  a diagnosis  of  a left  posterior  tibial  tendon sprain.   Per  these  notes,  the \nClaimant was seen in follow-up for her injury.  At that time, overall, the Claimant had improved, \nbut she continued to feel tightness in the posteromedial of her ankle.  She reported that her pain \nhad resolved and she was ready to go back to work full duty.  Dr. Martin stated that on physical \nexamination of her ankle, the tenderness over the distal posterior tibial tendon had significantly \nimproved, and that her skin was tact with no new changes.  His assessment was “45-year-old \nworkers’ compensation, left ankle posterior tibial tendon sprain.”  Dr. Martin opined: \n Plan: The patient is much improved, she will be allowed to return to work full duty without \n restriction, she is not yet at maximum medical improvement, follow-up in a month for final  \n check.  I do not anticipate a permanent partial impairment rating or any permanent work    \n restrictions. \n As a result, on that same date, Dr. Martin authored a return-to-work slip stating that the \nClaimant could return to work full duty with no restrictions. \n The Claimant returned for an office visit with Dr. Martin on October 17, 2024.  He opined \nthat the Claimant had continued with improvement in the posterior tibial.  However, Dr. Martin \nstated that she had developed plantar fasciitis, this was worse in the mornings and with prolonged \nstanding.  The Claimant remained in regular shoes, and she had been without restrictions at work.  \nHe educated the Claimant on plantar fasciitis and returned her to full duty work. \n  Also, on October 17, Dr. Martin wrote in a clinic note, “Dena McLevain/the Claimant was \nseen in my office on October 17, 2024.  She may return to work full duty with no restrictions...”   \n The  Claimant  saw  Dr.  Martin on  November  21,  2024,  for an  office  visit  due  to  her \ncompensable workers’  compensation injury  of  “a  left  posterior  tibial  tendon  sprain.”    She \npresented  in  follow-up  clinic  with  her  regular  shoes  on  with  no  pain  in her heel  or  ankle.    The \n\nMcLevain - H404600 \n18 \n \nClaimant reported that she was happy with her progress.  At that time, she reported that since her \nlast  visit she  had  no recent  problems to  report.   On physical examination of the Claimant’s left \nfoot, Dr. Martin opined “Left foot examination is benign, she has no areas of tenderness, no \nswelling, alignment equal to contralateral side, foot, well perused.” His assessment was that the \nClaimant’s “left ankle posterior tibial tendon sprain and plantar fasciitis” had resolved.  Dr. \nMartin’s plan included the following: “The patient is placed at maximum medical improvement, \nshe has a 0% permanent partial impairment rating based on the 4\nth\n edition AMA guidelines, she \nhas no permanent work restrictions, she will follow-up with me as needed.”        \n As a result, on November 21, 2024, Dr. Martin wrote in a letter to Whom it May Concern: \n“It is my medical opinion that Ms. Dena McLevain/the Claimant  may  return to work  as  full \nduty...”     \n            Adjudication \n A.  Temporary Total Disability Compensation  \n The Claimant sustained an admittedly compensable injury to her left ankle/foot on April \n7,  2024.    She  is  seeking  temporary  total  disability  compensable  from  May  1, 2024, through \nNovember 21, 2024, for  her compensable injury.   However, the Respondents have alleged that \nthe Claimant is not entitled to temporary total disability compensation for her compensable work-\nrelated left ankle injury because they were providing light-duty work to the Claimant, but she was \nterminated  for  cause.    As  such,  it  is  the  Respondents’ position that the Claimant  would  not  be \nentitled to temporary total disability compensation during the timeframe sought.    \n The  respondent-employer has alleged the Claimant’s employment was terminated for \npurported violations of company policies as outlined above and should be barred from recovery \nof temporary total disability compensation.  However, I am unable to find termination for cause \n\nMcLevain - H404600 \n19 \n \nto  be a  bar to an  award  of temporary  total  disability  compensation.   Superior  Industries  v. \nThomaston, 72 Ark. App. 7, 32 S.W. 3d 52 (2000).  \n An employee who has suffered a scheduled injury is entitled to compensation for temporary \ntotal disability during her healing period or until the employee returns to work, whichever occurs \nfirst.  Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001).  The healing \nperiod is that period for healing of the injury which continues until the employee is as far restored \nas the permanent character of the injury will allow.  Nix v. Wilson World Hotel, 46 Ark. App. 303, \n879 S.W.2d 457 (1994).  If the underlying condition causing the disability has become more stable \nand if nothing further in the way of treatment will improve that condition, the healing period has \nended. \nAfter  reviewing  the  evidence  in  this  case  impartially,  without  giving  the  benefit  of  the \ndoubt to either party, I find that the Claimant proved her entitlement to temporary total disability \nfrom May 1, 2024 through November 21, 2024, except for the brief periods she returned to work.  \n In the present matter, the Claimant sustained an admittedly compensable injury to her left \nankle/foot on April 7, 2024, while lifting a patient.  The Respondents accepted the claim and have \npaid all appropriate medical benefits on the claim.   \nSpecifically, the Claimant came under the care of Dr. Martin, and he ordered an MRI of \nthe Claimant’s left ankle.  Dr. Martin reviewed the MRI of the Claimant’s left ankle, and he opined \nthat it was consistent with some tendinitis, tenosynovitis of the posterior tibial tendon.  No intra-\narticular abnormality noted.  His assessment was “Posterior tibial tendinitis left side workers’ \ncompensation following injury/sprain.” Dr. Martin ordered formal physical therapy, a boot, and a \nmedication regimen for the Claimant’s left ankle injury.  He placed the Claimant on light duty.  \nThe Claimant has not returned to work during the period of time in question, (except for the days \n\nMcLevain - H404600 \n20 \n \nshe  returned  to  work),  and  she  continued  in  her  healing  period from  the  day  of  her  injury until \nNovember  21,  2024.    At  that  point,  Dr.  Martin  opined  the  Claimant  was  maximum  medical \nrecovery for her compensable left ankle injury.     \n Under these circumstances, the evidence before preponderates that I am compelled to find \nthat the Claimant proved her entitlement to temporary total disability compensation from May 1, \n2024, through November 21, 2024, except for the days that she worked.  \nOf  note,  the  Claimant’s  attorney  made  a  correction  regarding  her  employment  with \nMcDonald’s.  The McDonald’s information is from 2025 and not within the parameters of the \nperiod that she is asking for temporary total disability compensation.  However, it appears that \nher employment with Dollar General is applicable to the time frame for which temporary total \ndisability compensation is requested.  \n B.  Attorney’s Fee \n The parties stipulated that the respondents have controverted this claim in its entirety.  As \nsuch, the Claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity benefits \nawarded herein to the Claimant, pursuant to Ark. Code Ann. §11-9-715 (Repl. (2012). \n                                                                    AWARD \n The Respondents are directed to pay benefits in accordance with the findings of fact set \nforth herein this Opinion.   \n All accrued sums shall be paid in lump sum without a discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809 (Repl. 2012).  Pursuant \nto Ark. Code Ann. §11-9-715 (Repl. 2012), the Claimant’s attorney is entitled to a 25% attorney’s \nfee on the indemnity benefits awarded herein.   \n \n\nMcLevain - H404600 \n21 \n \n This fee is to be paid one-half by the insurance carrier and one-half by the Claimant.  \n      IT IS SO ORDERED. \n \n \n                                                                                                  ______________________                       \n                         CHANDRA L. BLACK \n                                Administrative Law Judge","textLength":42227,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H404600 DENA S. MCLEVAIN, EMPLOYEE CLAIMANT SPRING CREEK HEALTH & REHAB, EMPLOYER RESPONDENT ARKANSAS SELF-INSURED TRUST FUND/ CANNON COCHRAN MANAGEMENT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED FEBRARY 6, 2026 Hearing held before Administrative...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["ankle","back","fracture","sprain","strain"],"fetchedAt":"2026-05-19T22:31:51.986Z"},{"id":"alj-H504384-2026-02-05","awccNumber":"H504384","decisionDate":"2026-02-05","decisionYear":2026,"opinionType":"alj","claimantName":"Julanda Allen","employerName":"Heart To Heart, Inc","title":"ALLEN VS. HEART TO HEART, INC. AWCC# H504384 February 05, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Allen_Julanda_H504384_20260205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Allen_Julanda_H504384_20260205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H504384 \n \n \nJULANDA ALLEN, EMPLOYEE CLAIMANT \n \nHEART TO HEART, INC., \nEMPLOYER RESPONDENT \n \nWELLFLEET NY INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 5, 2026 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 5, 2026, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Phillip J. Wells, Attorney at Law, Jonesboro, Arkansas \n(neither appearing). \n \nRespondents represented by Mr. Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This   matter   comes  before  the   Commission   on  the   Motion   to   Dismiss   by \nRespondents.    A  hearing  on  the  motion  was  conducted  on February  5,  2026,  in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant failed to appear at the \nhearing;  and  her  counsel  waived  his  appearance.   Admitted  into  evidence  were \nCommission Exhibit  1 and  Respondents’  Exhibit  1,  pleadings,  correspondence  and \nforms related to this claim, consisting of 22 and 9 pages, respectively.  See Ark. Code \nAnn. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a \nmanner which best ascertains the rights of the parties”). \n\nALLEN – H504384 \n \n2 \n \n The record reflects the following procedural history: \n On July  15,  2025,  through  counsel,  Claimant  filed  a  Form  AR-C.    Therein, she \nalleged  that she  injured  her  back  at  work  on  November  17,  2023,  while  working  as  a \ncertified  nursing  assistant.   The boxes  on  the  form  were  checked  to  indicate  that \nClaimant  was  seeking  all  manner  of additional benefits.  In  a letter accompanying  this \nfiling and  dated  June 30,  2025, Counsel stated  that “[t]he claim has been accepted as \ncompensable and [Claimant] is currently receiving appropriate temporary total disability \nbenefits.”  However, on July 16, 2025, counsel wrote the Commission: \n[Claimant]  has  been  receiving  temporary  disability  checks  that  are  no \nlonger  being  paid.    Please  allow  this  letter  to  represent  a  request  for  a \nhearing   [o]n   her   entitlement   to   continue[d]   temporary   total   disability \nbenefits. \n \nThe  file  was  assigned  to  me  on  July 17,  2025;  and  on  July  18,  2025,  my  office  sent \nprehearing notices and questionnaires to the parties.  Claimant through counsel filed a \ntimely  preliminary  notice  on  July  18,  2025.   But  on  July  29,  2025,  he  again  wrote  the \nCommission: \n[Claimant]  indicated  that  she  was  not  receiving  her  temporary  disability \nchecks.  I received a log of payments from the worker[s’] comp. carrier as \nwell  as  a  confirmation  from  [Claimant]  that  she  is  getting  her  temporary \ndisability payments.  Please allow this letter to represent a request that the \nhearing be canceled and that her case return to general files. \n \nThis  request  was  granted.    On  July  30,  2025,  my  office  informed  the  parties  by  email \nthat the file was being returned to the Commission’s general files.  The prehearing \nprocess ceased. \n\nALLEN – H504384 \n \n3 \n \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until November \n25,  2025.    On  that  date,  Respondents  filed  the  instant  motion,  asking  for  dismissal  of \nthe  claim  under AWCC  R.  099.13  (now  codified  as 11  C.A.R.  §  25-110(d)) and  Ark. \nCode Ann. § 11-9-702 (Repl. 2012) due to Claimant’s alleged failure to, inter alia, make \na bona fide hearing request within the previous six months.  The file was reassigned to \nme  on January  15,  2026;  and  on that  same  date,  my  office  wrote  Claimant and  her \ncounsel, asking for a response to the motion within 20 days.  Claimant’s counsel filed a \nresponse to the motion on January 19, 2026.  The response reads in pertinent part: \n[Claimant]  is  continuing  to  receive  temporary  total  disability  benefits  and \nhas not reached maximum medical improvement.  Since the matter is not \nsubject  to  controversion,  no  hearing  has  been  requested  .  .  . [c]laimant \ndoes  not  object  to  an  Order  being  entered  dismissing  the  claim  without \nprejudice at this stage of the proceedings. \n \nIn an email to my office on January 21, 2026, Claimant’s counsel stated:  “We are not \nobjecting  to  an  order  of  dismissal  without  prejudice.    I  therefore  assume  we  are  not \nneeded to appear.  Is that correct?”  My office replied in the affirmative.  The above \nstatement by counsel was interpreted as his and Claimant’s waiver of their appearances \nat the hearing. \n On January  21,  2026, a  hearing  on  the  Motion  to  Dismiss  was  scheduled  for \nFebruary 5,  2026,  at  12:30 p.m.  at  the Commission  in  Little  Rock.    The Notice of \nHearing was sent not only to Claimant’s counsel, but to Claimant herself via first-class \nand certified mail to the address for her in Hughes, Arkansas, listed on her Form AR-C.  \n\nALLEN – H504384 \n \n4 \n \nThe certified  letter was  claimed on January 29,  2026,  by  someone  with  an  illegible \nsignature; and the one sent by first-class mail was not returned. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on February 5, \n2026.    Again,  Claimant and  her  counsel failed  to  appear  at  the  hearing.    But \nRespondents   appeared   through   counsel   and   argued   for   dismissal   under   the \naforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other  matters \nproperly before the Commission, the following Findings of Fact and Conclusions of Law \nare hereby made in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  her \nclaim under 11 C.A.R. § 25-110(d). \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  is  hereby  dismissed \nwithout prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) reads: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \n\nALLEN – H504384 \n \n5 \n \ndismissed   for   want   of   prosecution,   the   Commission   may,   upon \nreasonable  notice  to  all  parties,  enter  an  order  dismissing  the  claim  for \nwant of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. \n2012) must prove their entitlement to the relief requested—dismissal of the claim—by a \npreponderance  of  the  evidence.    This  standard  means  the  evidence  having  greater \nweight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As  shown  by  the  evidence  recounted  above,  (1)  the  parties  were  provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon; and (2) Claimant \nhas  failed  to  pursue  her claim  because she  has  taken  no  further  action  in  pursuit  of  it \nsince her file was returned to the Commission’s general files on July  30,  2025.    Thus, \nthe evidence preponderates that dismissal is warranted under § 25-110(d).  Because of \nthis finding, it is unnecessary to address the application of Ark. Code Ann. § 11-9-702(d) \n(Repl. 2012). \n That leaves the question of whether the dismissal of the claim should be with or \nwithout  prejudice.    The  Commission  possesses  the  authority  to  dismiss  claims  with \nprejudice.  Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 \n(1988).    The  Commission  and  the  appellate  courts  have  expressed  a  preference  for \ndismissals without  prejudice.   See Professional  Adjustment  Bureau  v.  Strong,  75  Ark. \n249,  629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for  a  dismissal \n\nALLEN – H504384 \n \n6 \n \nwithout prejudice; and Claimant (through counsel) indicated that his client did not object \nto this.  I agree and find that the dismissal of this claim should be and hereby is entered \nwithout prejudice.\n1\n \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the same \ncause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8911,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H504384 JULANDA ALLEN, EMPLOYEE CLAIMANT HEART TO HEART, INC., EMPLOYER RESPONDENT WELLFLEET NY INS. CO., CARRIER RESPONDENT OPINION FILED FEBRUARY 5, 2026 Hearing before Administrative Law Judge O. Milton Fine II on February 5, 2026, in Little Rock, Pulaski ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:31:43.650Z"},{"id":"alj-H502464-2026-02-05","awccNumber":"H502464","decisionDate":"2026-02-05","decisionYear":2026,"opinionType":"alj","claimantName":"Salvador Gonzales","employerName":"All Seasons Roofing Co","title":"GONZALES VS. ALL SEASONS ROOFING CO. AWCC# H502464 February 05, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Gonzales_Salvador_H502464_20260205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Gonzales_Salvador_H502464_20260205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H502464 \n \n \nSALVADOR GONZALES, EMPLOYEE CLAIMANT \n \nALL SEASONS ROOFING CO., \nEMPLOYER RESPONDENT \n \nTRANSPORATION INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 5, 2026 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 5, 2026, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Lee  J.  Muldrow,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This   matter   comes  before  the   Commission   on  the   Motion   to   Dismiss   by \nRespondents.    A  hearing  on  the  motion  was  conducted  on February  5,  2026,  in Little \nRock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who  according  to \nCommission records is pro se, failed to appear at the hearing.  Admitted into evidence \nwas Commission Exhibit 1, pleadings, correspondence and forms related to this claim, \nconsisting of 21 pages.  See Ark. Code Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission \nmust “conduct the hearing . . . in a manner which best ascertains the rights of the \nparties”). \n\nGONZALES – H502464 \n \n2 \n \n The record reflects the following procedural history: \n Per the initial and amended First Reports of Injury or Illness, filed on April 29 and \nMay 2, 2025, respectively, Claimant purportedly suffered an injury to his foot at work on \nMarch  30,  2025.   According  to  the  Form  AR-2  that  was  filed  on May  5,  2025, \nRespondents controverted the claim in its entirety. \n On April  22,  2025,  through  then-counsel Mark  Alan  Peoples,  Claimant  filed  a \nForm AR-C.  Therein, he alleged that his client injured his right foot in a “work accident” \nthat allegedly took place on March 20, 2025.  The boxes on the form were checked to \nindicate  that   Claimant   was   seeking   all   manner   of   initial benefits.  In  an   email \naccompanying this filing, Peoples stated that he was “not asking for a hearing at this \ntime.”  In  correspondence  to  the  Commission  received  on  May  2,  2025, Respondents \nreiterated  that  they  were  controverting  the  claim.  Respondents’ counsel entered his \nappearance before the Commission on May 7, 2025. \n In an email to the Commission sent on August 27, 2025, Respondents stated that \nthe claim had been settled.  A joint petition was filed.  However, because the University \nof  Arkansas  for  Medical  Sciences  requested  payment  for  their  treatment  of  Claimant, \nand  agreement  among  the  parties  could  not  be  reached  to  provide  for  this,  the  joint \npetition  was  withdrawn.   The file was returned to the Commission’s general files on \nSeptember 29, 2025.  On October 20, 2025, Peoples moved to withdraw from the case.  \nIn  an  Order  entered  on November  19,  2025,  the  Full  Commission  granted  the  motion \nunder AWCC Advisory 2003-2. \n\nGONZALES – H502464 \n \n3 \n \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until November \n25,  2025.    On  that  date,  Respondents  filed  the  instant  motion and  brief  in  support \nthereof,  asking  for  dismissal  of  the  claim  under AWCC  R.  099.13  (now  codified  as 11 \nC.A.R.  §  25-110(d)) and  Ark.  Code  Ann.  §  11-9-702(a)(4) (Repl.  2012) due  to \nClaimant’s alleged failure to,  inter  alia, make  a  bona  fide  hearing  request  within  six \nmonths  of  the  filing  of  the  Form  AR-C.   The  file  was  assigned  to  me  on December  1, \n2025; and on December 2, 2025, my office wrote Claimant, asking for a response to the \nmotion within 20 days.  The letter was sent by certified and first-class mail to the Little \nRock, Arkansas address  of  Claimant  listed  in  the  file  and on his Form  AR-C.   The \ncertified letter was returned to the Commission, unclaimed, on January 2, 2026; but the \nfirst-class mailing was not returned.  However, no response from him to the motion was \nforthcoming.    On December 31,  2025, a  hearing  on  the  Motion  to  Dismiss  was \nscheduled  for February 5,  2026,  at  12:00 p.m.  at  the Commission  in  Little  Rock.    The \nNotice of  Hearing was  sent  to  Claimant  via  first-class  and  certified  mail  to  the same \naddress in Little  Rock as  before.   In  this  instance,  the certified  letter was  claimed on \nJanuary 7, 2026, by someone with an illegible signature; and as before, the one sent by \nfirst-class mail was not returned. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on February 5, \n2026.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared \nthrough counsel and argued for dismissal under the aforementioned authorities. \n\nGONZALES – H502464 \n \n4 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other  matters \nproperly before the Commission, the following Findings of Fact and Conclusions of Law \nare hereby made in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under 11 C.A.R. § 25-110(d). \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  is  hereby  dismissed \nwithout prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) reads: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed   for   want   of   prosecution,   the   Commission   may,   upon \nreasonable  notice  to  all  parties,  enter  an  order  dismissing  the  claim  for \nwant of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. \n2012) must prove their entitlement to the relief requested—dismissal of the claim—by a \npreponderance  of  the  evidence.    This  standard  means  the  evidence  having  greater \n\nGONZALES – H502464 \n \n5 \n \nweight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As  shown  by  the  evidence  recounted  above,  (1)  the  parties  were  provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon; and (2) Claimant \nhas  failed  to  pursue  his claim  because  he  has  taken  no  further  action  in  pursuit  of  it \n(including  appearing  at  the February  5,  2026,  hearing  to  argue  against  its  dismissal) \nsince his file was returned to the Commission’s general files on September 29,  2025.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under § 25-110(d).  \nBecause of this finding, it is unnecessary to address the application of Ark. Code Ann. § \n11-9-702(a)(4) (Repl. 2012). \n That leaves the question of whether the dismissal of the claim should be with or \nwithout  prejudice.    The  Commission  possesses  the  authority  to  dismiss  claims  with \nprejudice.  Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 \n(1988).    The  Commission  and  the  appellate  courts  have  expressed  a  preference  for \ndismissals without  prejudice.   See Professional  Adjustment  Bureau  v.  Strong,  75  Ark. \n249,  629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for  a  dismissal \nwithout prejudice.  I agree and find that the dismissal of this claim should be and hereby \nis entered without prejudice.\n1\n \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the same \ncause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nGONZALES – H502464 \n \n6 \n \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":8221,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H502464 SALVADOR GONZALES, EMPLOYEE CLAIMANT ALL SEASONS ROOFING CO., EMPLOYER RESPONDENT TRANSPORATION INS. CO., CARRIER RESPONDENT OPINION FILED FEBRUARY 5, 2026 Hearing before Administrative Law Judge O. Milton Fine II on February 5, 2026, in Little Rock, ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:31:45.723Z"},{"id":"alj-H401902-2026-02-05","awccNumber":"H401902","decisionDate":"2026-02-05","decisionYear":2026,"opinionType":"alj","claimantName":"Chad Hill","employerName":"Washington County Judge","title":"HILL VS. WASHINGTON COUNTY JUDGE AWCC# H401902 February 05, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HILL_CHAD_H401902_20260205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HILL_CHAD_H401902_20260205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H401902 \nCHAD HILL, EMPLOYEE CLAIMANT \n \nWASHINGTON COUNTY JUDGE, EMPLOYER RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, CARRIER/TPA RESPONDENT \n \n OPINION FILED FEBRUARY 5, 2026 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JARROD PARRISH, Attorney, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On  November 13,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas. A pre-hearing conference was conducted on August 28, 2025, and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.    The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2 The employee/employer/carrier relationship existed on January 23, 2024. \n3 Claimant sustained a compensable injury on January 23, 2024.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n            1.  Compensation rate. \n            2.  Whether claimant is entitled to temporary total disability benefits from June 9, 2025, to a  \n                 date yet to be determined. \n            3.  Whether claimant is entitled to medical benefits. \n\nHill-H401902 \n2 \n \n            4.  Attorney’s fee.  \n All other issues are reserved by the parties. \n The claimant contends that “He is entitled to medical treatment, including surgery by Dr. \nBlankenship. Claimant contends he is entitled to temporary total disability from June 9, 2025, to a date \nyet to be determined. Claimant reserves all other issues.” \n The respondents contend that “All appropriate benefits have been paid with regard to this \nmatter. It is respondents’ position that the surgical recommendation is not reasonable and necessary \nfor the claimant’s compensable injury and that respondents should not be liable for benefits associated \nwith the same.” \n           From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1. The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n28, 2025, and contained in a pre-hearing order filed on that same date are hereby accepted as fact. \n2. Claimant has met his burden of proof by a preponderance of the evidence that he is entitled \nto additional medical benefits as recommended by Dr. James Blankenship for his compensable back \ninjury. \n3. Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \ntemporary total disability benefits from June 9, 2025, to a date yet to be determined. \n HEARING TESTIMONY \n \nClaimant testified on his own behalf. He is 41 years old and went to work for Washington \n\nHill-H401902 \n3 \n \nCounty in early 2019 as a heavy equipment operator. On January 23, 2024, claimant was taking snow \nchains off the back of his grader when he slipped on cold, wet surfaces. He said he yanked himself \nback up to avoid falling in the mud and instantly felt pain in his lower back, hip to hip area. The pain \nstarted going down his left leg and on the inside of his left groin. Claimant reported the injury to his \nsupervisor, Brian Shumake, within 10 to 15 minutes. Respondents accepted the injury and sent him \nfor treatment.  \nClaimant’s course of treatment began with conservative care, including physical therapy and \nepidural shots. About four months after the injury, Dr. James Calhoun performed a laminectomy and \ndiscectomy.  Following  surgery,  claimant  had  physical  therapy  and  consulted  with  Dr.  Calhoun \napproximately  three  times,  one  of  which  was  by  telephone.  Dr.  Calhoun  released  claimant  in \nSeptember 2024. According to claimant, his symptoms at the time he was released included extreme \nlower back pain, weakness and nerve pain going down his left leg and inside left groin, drop foot, and \ntingling and burning in his feet, leg, back and groin. Claimant did not believe the surgery improved his \ncondition at all. He explained these symptoms to Dr. Calhoun, who offered no additional treatment \nexcept physical therapy. \nClaimant testified that before his work accident, he had not had any problems with his back \nthat restricted his activities. When shown medical records from 2016 mentioning low back pain \npossibly from baling hay, claimant did not recall that visit. He stated that at some point before starting \nwork at Washington County, he began a regular exercise routine of free weights, jogging, walking on \ntreadmills, and stationary bike, Monday through Friday before work. Before the accident, claimant \nstated that he had no trouble doing his work or his workout, and his back caused him no problems. \nSince the accident, claimant testified that his symptoms have never gone away, but the drop \nfoot in his left foot began after the surgery. Claimant described the foot drop as not being able to feel \nhis foot when walking, causing him to trip because he cannot control it. He estimated he has fallen 30 \n\nHill-H401902 \n4 \n \nto 40 times since surgery, sometimes catching his foot on something, other times his legs just \ncollapsing when he tries to walk. \nAfter surgery, claimant returned to work at Washington County in light duty, initially in the \nsign shop and later at the front desk. Dr. Calhoun placed him on restrictions including no bending, \ntwisting, or lifting more than 15 pounds. Claimant testified the sign shop work was difficult because \nhe is tall and had to constantly bend over tables to make signs. He could not stand straight up for \nextended periods.  \nOn October 23, 2024, approximately five months after his back surgery, claimant's back flared \nup when he helped a co-worker move sign pedestals while cleaning up the shop. He told his supervisor \nDerek Morgan that he had hurt his back. Mr. Morgan did not offer to send him to a doctor. The next \nmorning, claimant called Bart Ledgerwood while driving to work, reporting that his back hurt and he \nhad not slept all night. He asked if he could take a vacation day, take a day without pay, or come in \nand try to work as long as he could. Bart told him he would put him down for a vacation day and to \ngo home. Neither Mr. Morgan nor Mr. Ledgerwood offered to send claimant to a doctor even though \nboth were aware claimant had a workers' compensation claim for his back. \nClaimant testified that later that afternoon, around 3:15 p.m., Mr. Morgan texted claimant \nsaying he needed a doctor's note for missing a day. Claimant panicked because he understood the \npolicy to require a note only for missing a day before or after a holiday, or for missing a third \nconsecutive day. He asked his wife, who works for Baptist Health, if she could get him a doctor's note. \nClaimant said when he returned to work, Mr. Morgan told him if he did not have a doctor's note, he \nwould be fired. Claimant did not use his personal health insurance because he understood using it for \nanything related to workers' compensation would be insurance fraud, and he did not have money to \npay for a doctor out of pocket.  \nClaimant received a written reprimand on October 29, 2024, for cursing at a fellow employee \n\nHill-H401902 \n5 \n \nand for excessive use of his personal phone. In the five years he worked for Washington County \nbefore his accident, claimant testified he had never received a write-up for misconduct. \nAfter Dr. Calhoun released him, claimant said he wanted a second opinion from another \ndoctor due to his continued symptoms but was denied by the carrier as being too soon after his release. \nHe finally saw Dr. James Blankenship who recommended additional surgery, which claimant is seeking \nin this hearing.  \nClaimant testified that he has been unable to work since he was terminated. He applied to a \nfew jobs, but he determined that he could not even work a part-time job. He said he does household \nchores and yard work—vacuuming, yard work, tilling his garden—by taking frequent breaks, but his \nback still hurts the next day.  \nOn cross-examination, claimant was confronted with his deposition testimony stating he never \nhad any prior injuries, problems, symptoms, or conditions involving his low back before January 23, \n2024. When shown the 2016 medical records documenting lower back pain, paravertebral spasms, \npositive straight leg raise on the left, and radiculopathy of the lumbosacral region, claimant stated he \ndid  not  remember  that  visit  until  his  attorney  told  him  about  it  before  the  hearing.  He  only \nremembered the 2016 visit was to check if he was diabetic and to get a prostate exam. \nClaimant confirmed that he had three MRIs: January 27, 2024 (pre-surgery), July 11, 2024 \n(post-surgery), and June 23, 2025 (for Dr. Blankenship). He underwent a functional capacity evaluation \nin October 2024 with a consistency score of 31 out of 49. When asked for an explanation, claimant \nsaid he did not know what it meant. \nClaimant agreed Washington County brought him back to work in modified duty both before \nhis surgery on May 28, 2024, and then again after surgery, working in the sign shop and office. \nClaimant worked for the County until his termination in November 2024. \nRegarding the note from Dr. Slabbert which took claimant off work on October 24, 2024, \n\nHill-H401902 \n6 \n \nclaimant admitted he had never been evaluated by Dr. Slabbert, never seen him, never been to his \noffice, never spoken to anyone in his office, and had never tried to make an appointment with him. \nClaimant admitted when he turned the note in, he knew it was not legitimate, knew he had no \naffiliation with that doctor, and knew it would be fraudulent. He conceded it was dishonest to present \nthat note to his employer. Claimant does not disagree with the decision to terminate his employment \nbecause of the fraudulent note he submitted to Washington County. \nAfter being terminated, claimant applied for unemployment benefits and listed the reason for \ntermination simply as \"Doctor note\" without disclosing he had falsified a medical record. Claimant \nwas denied unemployment benefits but testified he thought the denial was because he was receiving \npermanent partial disability payments. Since termination, claimant applied to Waste Management, \nCrawford County dump, CARDS trash service, AutoZone, and construction companies. In addition \nto the outdoor work mentioned earlier, claimant does laundry, dishes, and cooking in what he termed \n“small portions.”  \nClaimant was asked about cursing at the co-worker at the office. Claimant said sometimes you \njoke around with co-workers, and he did not think he was yelling at her. He termed it as expressing \nfrustration about not knowing how to use the phone. He conceded that he used profanity. \nOn redirect examination, claimant's actual deposition answer about prior back problems was \n\"No. Not that I can remember, no,\" not simply \"no.\" Regarding the functional capacity evaluation, \nclaimant testified the evaluator asked him to stand on his left leg and squat down. When claimant \nasked if the evaluator would catch him because he knew he would fall, the evaluator said no. Claimant \nrefused because he did not want to hurt himself. Claimant testified he gave good effort in the \nevaluation and tried to be cooperative, but he has not been able to squat on one leg since his surgery. \nRegarding the fraudulent note, claimant testified he had never done anything like that before. \nHe was trying to keep his job and panicked when told he would be fired if he did not have a doctor's \n\nHill-H401902 \n7 \n \nnote. He told both Mr. Morgan and Mr. Ledgerwood he had hurt his back moving signposts, but \nneither offered to send him to a doctor; both knew about his workers' compensation claim for a back \ninjury. He repeated that he offered to come into work, but Mr. Ledgerwood told him to take a vacation \nday and go home. \nClaimant testified he never had to explain why he wanted vacation days when he took accrued \nvacation. He had never had to bring a doctor's note for one day off work being sick. Requiring a \ndoctor's note was not within the policy as he understood it or as it had been practiced with him before. \nBefore the accident happened, claimant said he had never been reprimanded for using his personal \ncell phone. \nOn recross-examination, claimant admitted he was willing to lie to keep his job. He had no \nsick time left, which is why he asked for a vacation day or to take it without pay. Claimant understood \nthat vacation time requires two weeks' notice to a supervisor, but claimant maintained he was told he \ncould take a vacation day rather than coming into work. Claimant agreed that regardless of what the \npolicy is and whether he should or should not have been asked for a note, there was no justification \nfor producing a fraudulent note and representing that it was true and accurate. \nMr. William Bartley  Ledgerwood testified for respondents. He  is superintendent of the \nWashington County Road Department. He testified claimant did not fully cooperate with efforts to \nkeep him working. He believed claimant hated working the front desk and telephone and was usually \na no-show when assigned there. Claimant received a written reprimand on October 29, 2024, for \ncursing at a secretary at the front desk. The incident was significant enough to draw attention from \nother employees and supervisors. Claimant had received verbal reprimands about phone usage before \nreceiving a written reprimand for excessive personal cell phone use on the same date.  \nIn response to claimant’s testimony about working at a table too low for him in the sign shop, \nMr. Ledgerwood said claimant was provided with a table at the right height with a stool to avoid \n\nHill-H401902 \n8 \n \ndiscomfort to his back. \nRegarding the events October 23-24, 2024, Mr. Ledgerwood testified Superintendent Crowder \nfelt a doctor's note was relevant because of claimant's past history of not showing up and taking off \nfor jobs he did not want to do, indicating a pattern of claimant taking off whenever he wanted to. The \nnote was requested based on this pattern; claimant had depleted all his sick time. Mr. Ledgerwood \nexplained the vacation time policy requires two weeks' notice to structure who will be working. When \nsomebody calls in asking to take a vacation day, it has always been denied. However, Mr. Ledgerwood \ntold claimant he could take a vacation day because claimant had no other way to take time off—\nWashington County policy does not give unpaid days if vacation time is available. The superintendent \nasked Derek Morgan to request the note from claimant. \nMr. Ledgerwood stated the reason claimant was terminated was because he produced a forged \ndoctor's note; but for the fraudulent note, claimant would have continued working in modified duty \nas he had since January 2024. Mr. Ledgerwood stated claimant was one of the better grader operators \nthey had. As such, the intent was always for him to go back to operating the grader if he could. He \ndenied there was collusion to set up traps for write-ups or reprimands; the write-ups were all the result \nof claimant's behavior and conduct. \nOn cross-examination, Mr. Ledgerwood said he was field superintendent when claimant was \nfirst employed and was aware claimant had a back injury at work. He agreed when claimant called that \nmorning saying his back hurt, Mr. Ledgerwood told claimant to go home, and he would put it down \nas a vacation day. He explained this was not the first time claimant had been asked to bring a note \nwhen taking a vacation day as a sick day. Since claimant came back to work after surgery, he would \nschedule doctor visits and use vacation time because he had no more sick time. Mr. Ledgerwood \nallowed him to use vacation time as sick time; whether workers’ compensation should pay for those \nappointments was not his decision to make. He personally had observed the pattern of claimant calling \n\nHill-H401902 \n9 \n \nin when he was at the front desk. When asked why claimant was not fired for this pattern, Mr. \nLedgerwood could not answer.  \nMr. Ledgerwood admitted he brought no documents to support the pattern of calling in when \nclaimant was going to be on the front desk. The personnel file contained only two write-ups from \nOctober 29, 2024—nothing before that date. Mr. Ledgerwood conceded his knowledge about videos \nand TikToks on claimant's phone was secondhand. Mr. Ledgerwood could not answer how many \nvacation days claimant had, whether the pattern of calling in sick was documented in the personnel \nfile. When claimant was a grader operator, Mr. Ledgerwood would not have known about cell phone \nuse. It was only when claimant was at light duty in a public place could his phone use be observed. \nOn redirect examination, Mr. Ledgerwood confirmed he personally observed the pattern of \nclaimant calling in sick as he described. The County kept claimant working until the fake doctor's note. \nClaimant expressed often that he hated light-duty and did the work begrudgingly, but he eventually \ndid what was asked. If claimant had not been terminated for the false medical record, Mr. Ledgerwood \nstated that the County would have continued to accommodate him. \nOn recross-examination, the County would have continued to accommodate claimant even \nafter full release, keeping him in the sign shop or front desk as they do with other injured employees. \nThe County makes jobs for injured workers because they are \"more of a family than a business.\" Mr. \nLedgerwood agreed it is normal practice to send an employee to a doctor when they report being hurt \nat work. \nREVIEW OF THE EXHIBITS \n In addition to the prehearing order discussed above, the exhibits admitted into evidence in \nthis case were Claimant's Exhibit # 1, consisting of two index pages and 33 numbered pages of medical \nrecords thereafter; Respondent's Exhibit # 1, consisting of one index pages and 33 numbered pages \nof medical records; Respondent's Exhibit # 2 consisting of one index page and 31 pages of non-\n\nHill-H401902 \n10 \n \nmedical documents.   There were emails from the parties following the hearing, which are blue backed \nto this record.  \nReviewing the medical records in chronological order, the records that predate the January 23, \n2024, incident that gave rise to this claim were those from January 27, 2016, when Dr. Carolyn Dillard \nexamined claimant. One of the chief complaints was lower back pain on the left side that started two \nweeks prior with no injury and no fever. Physical examination showed paravertebral spasms on left \nparaspinal lumbar area with tenderness to palpation, full flexion, full extension, full lateral bending, \nfull rotation, and positive straight leg raise on the left. Claimant's diagnoses included radiculopathy of \nthe lumbosacral region. He was prescribed cyclobenzaprine as needed for muscle spasm and advised \nto use NSAIDs, stretching of low back, and to return in two weeks if no improvement. No records \nwere provided of a return visit.  \nOn January 27, 2024, claimant underwent an MRI of his lumbar spine at Northwest Medical \nCenter Bentonville. The MRI showed five non-rib-bearing lumbar vertebral bodies with normal \nvertebral body heights. There was T1 and T2 hyperintense signal with STIR hyperintense signal in the \ninferior endplate of L4, superior part of L5, inferior endplate of L5, and superior endplate of S1, likely \ndegenerative. Disc space narrowing and desiccation were noted at L4-L5 and L5-S1. At L4-L5, there \nwas a disc bulge with bilateral subarticular and foraminal components and central protrusion, mild \nbilateral facet osteoarthritis and ligamentum flavum thickening, mild spinal canal stenosis, effacement \nof bilateral traversing L5 nerve roots, and mild bilateral neural foraminal stenosis. At L5-S1, there was \na broad disc bulge, mild bilateral facet osteoarthritis and ligamentum flavum thickening, no spinal \ncanal stenosis, and mild bilateral neural foraminal stenosis greater on the left. The impression was \ndegenerative disc disease and facet osteoarthritis at L4-L5 with mild spinal canal stenosis and mild \nbilateral neural foraminal stenosis, with effacement of bilateral traversing L5 nerve roots requiring \n\nHill-H401902 \n11 \n \ncorrelation for radiculopathy. At L5-S1, mild degenerative disc disease and facet osteoarthritis with \nmild bilateral neural foraminal stenosis. \nClaimant first saw Dr. James Calhoun at Pain Treatment Centers of America on May 6, 2024. \nDr. Calhoun noted claimant was a new patient with uncontrolled lower back and leg pain not managed \nwith activity modification, home exercise, over-the-counter NSAIDs, and current pain medication. \nClaimant described constant pain with intermittent flare-ups, worsened by any physical activity and \nrelieved by rest and medications. Associated symptoms included restrictions in activities, mood \nchanges, and difficulty sleeping. Claimant had completed 12 sessions of physical therapy with no \nimprovement in left leg symptoms. He had returned to driving a grader and developed some right leg \nsymptoms, reporting continued weakness in the right foot. He had a central disc herniation at L4-5. \nDr. Calhoun discussed a left L4-5 microdiscectomy, including the risks and postoperative course. On \nMay 28, 2024, Dr. Calhoun performed a laminotomy including decompression of nerve root at one \ninterspace, lumbar, for herniated nucleus pulposus at L4-5 left. \nOn June 27, 2024, claimant saw Dr. Calhoun for a telemedicine follow-up, one-month post-\nsurgery. Claimant had done very poorly with continued low back and right leg pain worsened with any \nincrease in activity. He was using a cane. On the pain disability scale, claimant reported family/home \nresponsibilities 7/10, recreation 8/10, social life 8/10, work-related activities 8/10, sexual behavior \n8/10, self-care 6/10, and life support activities 3/10, for a Pain Disability Index score of 48. Dr. \nCalhoun's assessment was postoperative pain after spinal surgery. The plan was to try a Medrol dose \npack. Current restrictions were no lifting more than 20 pounds, no repetitive bending/twisting, no \nstanding or sitting more than 30 minutes, and no walking more than 15 minutes. Claimant was not at \nmaximum medical improvement. A telemedicine follow-up was scheduled in one month. \n\nHill-H401902 \n12 \n \nOn July 11, 2024, a postoperative MRI was performed at Fort Smith Hospital. The study \nshowed moderate loss of disc height and endplate edema and enhancement at L4-L5 suspected to be \ndegenerative Modic type 1 changes, with infection considered less likely. Left laminotomy changes \nwere noted with enhancing soft tissue in the laminotomy bed and left lateral recess; the radiologist \nrecommended  correlation  with  duration  since  surgery  as  findings  may  represent  postoperative \ngranulation tissue, with epidural fibrosis not excluded. There was persistent disc bulge asymmetric to \nthe left with stenosis of the left lateral recess and mass effect on the L5 nerve root. Moderate narrowing \nof the proximal right lateral recess with displacement of right L5 nerve root was noted. The canal was \npatent. There was moderate foraminal stenosis. At L3-L4, there was a left extraforaminal zone annular \nfissure with broad-based 4mm disc protrusion and moderate foraminal stenosis with displacement of \nexiting L3, with the canal narrow due to short pedicles. The impression noted primary canal stenosis \ndue to short pedicles and degenerative and postoperative changes at L4-L5 including left laminotomy \nand persistent lateral recess narrowing with probable mass effect on L5 nerve roots. Enhancement in \nthe left laminectomy bed and lateral recess was likely granulation tissue given recent surgery. No \npseudo meningocele or arachnoiditis was seen. Minimal edema in the disc and edema/enhancement \nin the endplates was likely degenerative, with infection considered less likely. \nOn July 17, 2024, claimant saw Dr. Calhoun for postoperative follow-up, two months post-\nsurgery. Claimant continued to complain of diffuse weakness and numbness in the left leg after the \nuncomplicated microdiscectomy. He reported the entire left leg felt numb and would give way, causing \nhim to fall. After riding a lawn mower, it affected his right leg as well for 24 hours. Dr. Calhoun \nreviewed the postoperative MRI and stated the radiologist reported some lateral recess stenosis, but \nDr. Calhoun disagreed. He found no significant neural compromise above that area to explain \nclaimant's entire left leg weakness. The physical examination showed give-way weakness in every \nmuscle tested on the left. Dr. Calhoun's assessment was postoperative pain after spinal surgery and \n\nHill-H401902 \n13 \n \npost-laminectomy syndrome of lumbar region. Dr. Calhoun had no explanation for the diffuse \ncomplaints in the lower left extremity. He started claimant on physical therapy, kept him on the same \nrestrictions plus allowed him to attend physical therapy, and scheduled telemedicine in one month. \nDr. Calhoun stated claimant's prognosis was poor. \nOn August 21, 2024, claimant had another telemedicine visit with Dr. Calhoun. Claimant had \nattended 7 of 8 physical therapy sessions with no improvement. He still fell when his left leg \"gave \nout.\" Dr. Calhoun's assessment remained post-laminectomy syndrome of lumbar region. He talked \nwith claimant's case manager and offered more physical therapy. A return visit was scheduled in \nSeptember, and Dr. Calhoun stated claimant would most likely be declared at maximum medical \nimprovement. \nOn September 18, 2024, Dr. Calhoun saw claimant for follow-up. Claimant reported he was \nunchanged  with  severe  burning  pain  across  his  lower  back  with  radiations  superiorly  and \nhypersensitive skin. He reported continued weakness in his left leg despite more physical therapy. Dr. \nCalhoun noted there was no good explanation for this on the postoperative MRI. Physical examination \nshowed 4/5 strength in left iliopsoas, quadriceps, hamstrings, and gastrocnemius/soleus, 3/5 strength \nin left tibialis anterior, and give-way weakness in every muscle tested on the left. Dr. Calhoun's \nassessment was postoperative pain after spinal surgery. His plan stated no further treatment would be \nof benefit. Claimant was at maximum medical improvement with 10% impairment of the whole \nperson according to the fourth edition of the AMA Guidelines to Permanent Impairment. Claimant \nwas kept on the same restrictions. Dr. Calhoun suggested claimant undergo a functional capacity \nevaluation to determine permanent restrictions. \nOn October 3, 2024, claimant underwent a functional capacity evaluation. In an addendum \ndated October 7, 2024, Dr. Calhoun noted claimant gave an unreliable effort, making the results \n\nHill-H401902 \n14 \n \ninvalid. Claimant remained at maximum medical improvement. Because claimant gave an unreliable \neffort, Dr. Calhoun released him to work full time with no restrictions. \nOn October 15, 2024, claimant was examined at Conservative Care Occupational Health \nSpringdale. The work note stated claimant could not perform essential job functions as a heavy \nequipment operator. The examination noted claimant required a cane for walking, had left foot drop \nand left leg radiculopathy, and decreased range of motion in low back to 60 degrees with positive \nstraight leg raising test on the left. The examining physician stated claimant had failed back surgery \nwith multiple pain medications and muscle relaxants providing no relief. \nOn October 24, 2024, claimant submitted a purported off-work slip from Dr. Slabbert to his \nemployer. On October 29, 2024, Baptist Health Family Clinic sent a letter stating the patient had no \nvisit history of being seen in their clinic on October 24, 2024, and that Dr. Slabbert was out of town \non that date. \nOn November 20, 2024, Dr. Calhoun sent a letter to Ms. Brooks stating claimant should return to his \nprimary care physician for further prescriptions of gabapentin or muscle relaxants. \nOn June 9, 2025, claimant saw Dr. James Blankenship at The Neurosurgery Spine & Pain \nManagement Center. Chief complaint was lower back pain and bilateral hip and buttock pain, left \ngreater than right. Claimant also complained of left testicular pain and bilateral lower extremity \nsymptoms down to his toes on the right and to the popliteal fossa on the left. He described decreased \nstrength in both lower extremities, left greater than right. He denied incontinence but had urinary \nurgency. Claimant reported his May 2024 laminectomy did not significantly help and if anything \nincreased his pain. He did three months of physical therapy postoperatively, with the last therapy in \nAugust. He was originally injured in January 2024 pulling a chain off a grader when he slipped and \nfell. He worked postoperatively at light duty until November 2024. Since then, he had been off work. \n\nHill-H401902 \n15 \n \nConservative treatment included physical therapy, NSAIDs, heat/ice, and epidural steroid \ninjection  in  April  2025.  On  examination,  claimant  had  4/5  extensor  hallucis  longus  and  foot \ndorsiflexors weakness on the left. He had an L5 radiculopathy on examination with sensory deficits in \nthe L5 dermatome and straight leg raising positive at 10 degrees. His gait was ataxic and assisted by \ncane with foot drop. Lumbar radiographs showed severe disc space settling at L4-L5 and L5-S1 with \nsevere foraminal stenosis. Examination of the spine showed range of motion restricted with flexion \nand extension limited due to pain. Straight leg raising test was positive on the left side. \nDr. Blankenship stated claimant's neurologic examination revealed an L5 radiculopathy with \nsensory deficits in the L5 dermatome, 4/5 strength in extensor hallucis longus and foot dorsiflexors \non the left, and straight leg raising positive at 10 degrees. Dr. Blankenship reviewed claimant's \nfunctional capacity evaluation and was concerned that some of the inconsistencies had more to do \nwith pure avoidance of falling due to weakness and the fact that claimant had been falling. Dr. \nBlankenship stated he would not weigh those findings given the condition claimant was in when he \ngot the test and what was going on, to preclude further intervention based on what he saw on the \nMRI. \nDr. Blankenship noted claimant had a fairly large recurrent disc herniation in the midline, \neccentric off to the left, with severe foraminal stenosis and marked endplate changes resulting in \nbilateral lateral recess stenosis, left much more significant than right. The L3-L4 level showed marked \nfacet arthropathy but no significant neural impingement. The lumbosacral level also had significant \ndegenerative changes with foraminal narrowing. Dr. Blankenship stated claimant had certainly failed \nroutine and usual conservative measures and had an early disc recurrence at L4-L5. Both findings were \nconsistent  with  claimant's  current  pain  complaints  and  physical  examination  findings.  Surgical \nconsideration was warranted. Unfortunately, due to significant changes at the lumbosacral level, this \n\nHill-H401902 \n16 \n \nlevel would have to be incorporated into an arthrodesis, with the main focus of surgical intervention \nat L4-L5. \nDr. Blankenship recommended claimant undergo anterior lumbar interbody arthrodesis at L5-\nS1, lateral approach at L4-L5, and posterior decompression and pedicle screw fixation. After a lengthy \ndiscussion, claimant wanted to proceed with revision surgery. The rationale for offering surgery was \nthe obvious recurrent disc herniation with severe left and moderate right lateral recess and foraminal \nstenosis at L4-L5. The reasons for suggesting arthrodesis were twofold: first, a very early recurrence, \nwhich is always an indication of segmental instability; second, claimant would need a significant \namount of his facet joint taken off to safely and adequately decompress both the L4 and L5 nerves on \nthe left, which would further destabilize his spine. Lastly, he had severe foraminal collapse at both L4-\nL5 and L5-S1 requiring elevation of the disc space with implants. Dr. Blankenship told claimant it was \nunlikely he would get any foot strength back after a year, but it was possible. Claimant would need a \nnew MRI as a preoperative tool, as Dr. Blankenship would not operate based on a near year-old MRI. \nOn June 23, 2025, an MRI was performed at MANA MRI and read by Dr. Shawn Barnhill. \nThe study showed postoperative changes at L4-L5 with marked endplate changes both at L4-L5 and \nL5-S1,  more  significant at L4-L5. Mild disc  space  desiccation was noted at L3-L4. The conus \nmedullaris sat appropriately at the thoracolumbar junction with no distal conus medullaris pathology \nor pathology at the cauda equina appreciated. No pathologic enhancement was noted. At L4-L5, there \nwas a post-hemilaminectomy on the left with recurrent disc herniation with bilateral foraminal stenosis \nsecondary to broad-space disc protrusion, left much greater than right, resulting in bilateral lateral \nrecess stenosis, left greater than right. At L5-S1, there was midline disc protrusion without significant \nneural impingement. The impression was L4-L5 recurrent disc herniation on the left with extension \n\nHill-H401902 \n17 \n \nto the neural exit foramen with L4 neural compression and milder right-side lateral recess stenosis and \nforaminal stenosis. \nOn July 7, 2025, Dr. Blankenship issued a work note stating claimant should be excused from \nwork obligations until after he had surgery. \nDr. Ryan Fitzgerald, a board-certified diagnostic radiologist, was retained by respondents to \nprovide a radiology review opinion dated November 5, 2025. Dr. Fitzgerald personally reviewed the \nactual MRI images from January 27, 2024, July 11, 2024, and June 23, 2025. \nDr. Fitzgerald's review of the January 27, 2024, MRI revealed moderate disc space narrowing \nand mild endplate osteophytes at L4-5 and L5-S1, hallmarks of chronic degenerative disease. Mixed \nModic type I and II signal at L4-5 and L5-S1 represented active degenerative endplate inflammation \nsuperimposed upon background chronic degenerative marrow signal alteration. A minimal disc bulge \nat L3-4 was accompanied by an annular fissure across the left foraminal/extra-foraminal zones with \nmild/moderate left neural foraminal stenosis. A small central disc protrusion superimposed upon a \ndiffuse disc bulge at L4-5 contributed to mild spinal canal stenosis and mild/moderate bilateral \nsubarticular recess narrowing with crowding of the intracanalicular L5 nerve roots. Neural foraminal \nstenosis was moderate on the right at L4-5. \nOn the July 11, 2024, postoperative MRI, Dr. Fitzgerald found Modic type I signal on both \nsides of the L4-5 interspace (active degenerative endplate inflammation) was more widespread than \non the comparison exam. Enhancement indicative of granulation tissue was demonstrated within the \nsurgical bed. Ill-defined STIR hyperintense signal had developed within the paraspinous musculature \non the left from L4 through S1. A residual disc protrusion in the central zone at L4-5 superimposed \nupon a mild disc bulge was no larger than on the comparison study. Persistent spinal canal stenosis at \n\nHill-H401902 \n18 \n \nL4-5 was mild and the left subarticular recess was moderately stenotic. Crowding versus impingement \nof the left L5 nerve root was evident. \nDr. Fitzgerald's review of the June 23, 2025, MRI showed no evidence of acute traumatic injury. Mild \nill-defined STIR signal on both sides of the L4-5 and L5-S1 interspaces was again consistent with \ndegenerative Modic type I signal. Residual enhancing scar in the surgical bed at L4-5 was much less \npronounced than on the comparison exam. A minimal disc bulge and endplate osteophytes at L3-4 \ndid not compromise the spinal canal and were unchanged. A mild disc bulge persisted at L4-5; \nhowever, the previously demonstrated central disc protrusion had regressed relative to the July 2024 \nexam. No residual or new disc herniation was evident. Mild spinal canal stenosis and moderate left-\nsided subarticular recess narrowing at L4-5 were unchanged. Dr. Fitzgerald concluded claimant's June \n23, 2025, MRI revealed no evidence of acute traumatic injury. At L4-5, chronic degenerative disease \nand a residual disc bulge were present as on prior imaging, but no herniation or other new disc \nabnormality was found. \nADJUDICATION \nThere are two distinct parts to claimant's request for relief. He seeks additional medical care as \nrecommended by Dr. Blankenship and temporary total disability benefits from June 9, 2025, until a \ndate to be determined.  \nIS CLAIMANT ENTITLED TO ADDITIONAL MEDICAL TREATMENT \nIt was stipulated that claimant sustained a compensable injury on January 23, 2024. Claimant \nhas the burden of proving by a preponderance of the evidence that medical treatment is reasonable \nand necessary. Goyne v. Crabtree Contracting Company, 2009 Ark. App. 200, 301 S.W.3d 16. Once \ncompensability is established, claimant need not offer objective medical evidence to prove entitlement \nto additional benefits. Ark. Health Ctr. v. Burnett, 2018 Ark. App. 427, 558 S.W.3d 408.  \n\nHill-H401902 \n19 \n \n However, because of claimant's willingness to submit a fabricated note from a physician he \nhad never seen and because he suffered a very convenient memory lapse in his deposition about \nprevious issues with his back, I am examining this portion of the case to see if the evidence \nindependent of his testimony supports the need for the surgery Dr. Blankenship has recommended. \nTo that end, the medical records summary above is more detailed than what I normally feel is necessary \nto render an opinion.  \n             Looking first at Dr. Calhoun's records, I find significant inconsistencies therein. Post surgery, \nhe documented objective findings including weakness on examination, opined that claimant had done \n\"very poorly\" after surgery, stated claimant's prognosis was \"poor,\" found \"no explanation\" for \nclaimant's symptoms on the MRI, diagnosed post-laminectomy syndrome, and assigned permanent \nrestrictions and a permanent impairment rating. Despite those findings, he declared claimant at \nmaximum medical improvement with no further treatment of benefit, then released claimant to full \nduty with no restrictions based solely on an unreliable functional capacity evaluation. Dr. Calhoun's \nrelease of claimant to full duty work based on the FCE results is puzzling. The functional capacity \nevaluation measured claimant's effort and consistency during testing for a part of a day; it did not cure \nclaimant's  underlying  spinal  pathology  or  eliminate  the  objective  findings  Dr.  Calhoun  had \ndocumented on examination. Dr. Calhoun did not explain how a patient can simultaneously have a \npermanent anatomical impairment warranting restrictions and also be able to work full duty with no \nrestrictions. His statement that \"no further treatment would be of benefit\" appears to be his way of \nushering claimant out of his office. Dr. Calhoun did not suggest claimant see a neurosurgeon to \naddress the issues he had documented but left untreated.  \n I found the testimony of Mr. Ledgerwood insightful on this issue. He established claimant's \nreports to Dr. Calhoun took place before claimant had any incentive to exaggerate his post-surgery \n\nHill-H401902 \n20 \n \nsymptoms. Just the contrary; claimant hated working in the shop or office and was very eager to return \nto operating the grader. Having unnecessary treatment would only delay claimant's desired outcome. \nAs such, his complaints to Dr. Calhoun following surgery are believable in light of Mr. Ledgerwood's \nobservations. The Commission has the authority to accept or reject medical opinion and to determine \nits medical soundness and probative force. LVL, Inc. v. Ragsdale, 2011 Ark. App. 144, 381 S.W.3d 869. \nIn light of all the evidence, I reject Dr. Calhoun's finding that claimant reached maximum medical \nimprovement with no further treatment of benefit. \n Dr. Blankenship documented clinical findings consistent with those of Dr. Calhoun, including \nweakness in the left lower extremity, sensory deficits in the L5 dermatome, positive straight leg raising, \nand L5 radiculopathy on examination. Dr. Blankenship also observed that claimant's gait was ataxic \nwith foot drop and that claimant required a cane for ambulation. He ordered a new MRI which was \nperformed on June 23, 2025. Dr. Barnhill reported \"recurrent disc herniation\" with bilateral foraminal \nstenosis and lateral recess stenosis at L4-L5. Based on his clinical examination and the MRI, Dr. \nBlankenship recommended anterior lumbar interbody arthrodesis at L5-S1, lateral approach at L4-L5, \nand posterior decompression and pedicle screw fixation. \n Respondents retained Dr. Ryan Fitzgerald, a board-certified diagnostic radiologist, to provide \nan independent review. Unlike Dr. Barnhill, Dr. Fitzgerald personally reviewed and compared all three \nMRI studies that had been done in this matter. On the June 23, 2025, MRI, Dr. Fitzgerald found the \ndisc protrusion had regressed relative to the July 2024 study and stated \"no residual or new disc \nherniation was evident.\" However, Dr. Fitzgerald also found moderate left-sided subarticular recess \nnarrowing at L4-5 that was unchanged from prior studies, along with mild spinal canal stenosis and \nchronic degenerative disease with endplate changes. \n\nHill-H401902 \n21 \n \n Dr. Fitzgerald's interpretation conflicts with Dr. Barnhill's characterization of \"recurrent \nherniation.\" I find no fault with Dr. Fitzgerald's interpretations of the studies he reviewed; however, \nDr. Fitzgerald's findings do not resolve the question before me. Dr. Fitzgerald is a radiologist who \ninterprets imaging; he did not examine claimant. He did not opine on whether the pathology he \ndocumented—the unchanged moderate stenosis, the degenerative disease, the endplate changes—\nexplains  claimant's  clinical symptoms  or  warrants  surgical  intervention.  Those  are  clinical \ndeterminations outside the scope of a radiologist's expertise. \n Both Dr. Calhoun and Dr. Blankenship documented claimant's neurological deficits. Dr. \nCalhoun found weakness and stated he had \"no explanation\" for claimant's symptoms based on the \nimaging. Dr. Blankenship found similar weakness, along with radiculopathy, sensory deficits, and foot \ndrop requiring use of a cane. Both radiologists who reviewed the June 2025 MRI documented \npathology.  Dr.  Barnhill  characterized  it  as  \"recurrent  herniation\"  with  stenosis.  Dr.  Fitzgerald \ncharacterized it as regressed disc protrusion with unchanged moderate stenosis and degenerative \ndisease. They appear to be describing the same pathology using different terminology. \nDr. Fitzgerald's finding that there is \"no evidence of acute traumatic injury\" on the June 2025 \nMRI does not undermine Dr. Blankenship's recommendation. Dr. Blankenship, as a neurosurgeon \nwith specialized expertise in spinal surgery, correlated the clinical findings recorded by both examining \nphysicians with the imaging pathology documented by both radiologists and determined that surgical \nintervention is warranted. After carefully weighing all the medical evidence, I find claimant has proven \nby a preponderance of the evidence that the surgery recommended by Dr. Blankenship is reasonable \nand necessary. \nIS  CLAIMANT  ENTITLED  TO  TEMPORARY  TOTAL  DISABILITY  BENEFITS?  \n             Claimant seeks temporary total disability benefits from June 9, 2025, the date he first saw Dr. \n\nHill-H401902 \n22 \n \nBlankenship, to a date yet to be determined. For an injured employee to be entitled to temporary total \ndisability compensation, he must prove that he remains within his healing period and that he suffers \na total incapacity to earn wages. Ark. State Hwy. & Transp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d \n392 (1981). The healing period ends when the underlying condition stabilizes such that further \ntreatment will not improve the condition. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 \n(1994). \nBecause  I  have  found  that Dr Calhoun’s  release  of  claimant  at  maximum  medical \nimprovement was not supported by the evidence in this case, and that the surgery recommended by \nDr. Blankenship is reasonable and necessary, it follows that claimant remains within his healing period. \nHowever, claimant has failed to prove he suffered a total incapacity to earn wages from June 9, 2025, \nforward. \nDr. Blankenship's July 7, 2025, letter regarding work—issued after reviewing the June 23, 2025, \nMRI—stated claimant \"should be excused from work obligations until after he has surgery.\" While \nthis reflects Dr. Blankenship's legitimate medical judgment, it does not constitute proof of total \nincapacity to earn wages. The note is a general work excuse, but does not take into account claimant's \nproven capacity to perform the specific light duty he successfully performed at Washington County. \nA physician's statement that a patient should not work differs from medical proof that the patient is \ntotally incapacitated from earning wages in suitable employment. Ark. Code Ann. § 11-9-102(8). \nDr. Blankenship documented 4/5 strength in the left lower extremity, L5 radiculopathy, \nsensory deficits, and foot drop requiring use of a cane—findings substantially similar to those \ndocumented by Dr. Calhoun in July through September 2024 while claimant was working light duty. \nDr. Calhoun found give-way weakness in every muscle tested on the left, 4/5 strength in multiple \nmuscle groups, 3/5 strength in left tibialis anterior, left leg giving out causing falls, and post-\n\nHill-H401902 \n23 \n \nlaminectomy syndrome. The physicians differed not in their clinical findings regarding claimant's \ncondition, but in their treatment approach. Dr. Calhoun declared claimant at maximum medical \nimprovement despite objective neurological deficits he acknowledged having \"no explanation\" for on \nimaging. Dr. Blankenship, as a neurosurgeon, determined surgical intervention was warranted to \naddress the documented pathology. \nClaimant successfully performed light duty work at Washington County from July through \nNovember 2024 despite these physical deficits. He worked in the sign shop and at the front desk \nperforming sedentary and light tasks within his restrictions. If claimant could perform this work from \nJuly through November 2024 with the clinical condition that warranted surgical intervention, nothing \nin Dr. Blankenship's June 2025 findings demonstrated he had become totally incapacitated from \ncontinuing that same work. \nFurthermore, the objective imaging demonstrated no worsening of claimant's condition. Dr. \nFitzgerald's review of the June 23, 2025, MRI revealed the disc protrusion had regressed relative to \nthe July 2024 postoperative study, with no residual or new disc herniation evident. The moderate left-\nsided subarticular recess narrowing and mild spinal canal stenosis documented on the June 2025 MRI \nwere  unchanged  from  prior  studies. Claimant  performed light  duty  work  with  Dr.  Calhoun's \ndocumented  deficits  and the  findings on  the  post-surgery MRI.  Nothing  in  Dr.  Blankenship's \nexamination or in the June 2025 MRI demonstrates total incapacity from continuing that work. \nClaimant's counsel argues in her post-hearing email that the termination was unreasonable due \nto short notice for the work note requirement. Tyson Poultry v. Narvaiz, 2012 Ark. 36, 386 S.W.3d 1, \nholds that a termination for misconduct does not forfeit temporary total disability benefits but \nclaimant must still prove both healing period and total incapacity to earn wages. Even assuming \narguendo the termination was unreasonable, claimant fails the incapacity requirement—he successfully \n\nHill-H401902 \n24 \n \nperformed light duty despite the same clinical deficits Dr. Blankenship documented. Washington \nCounty provided modified duty work to claimant from January 2024 through his November 2024 \ntermination. Mr. Ledgerwood credibly testified that Washington County would have continued \nproviding modified duty consistent with claimant's restrictions absent the fraudulent note, and that \nfraud was the sole reason for termination. \nFor these reasons, I find claimant has failed to prove by a preponderance of the evidence that \nhe suffered a total incapacity to earn wages from June 9, 2025, forward, and he is therefore not entitled \nto temporary total disability benefits. \nORDER \n Claimant has met his burden of proving by a preponderance of the evidence that he is entitled \nto additional medical treatment as recommended by Dr. Blankenship for his compensable back injury. \nClaimant has failed to prove by a preponderance of the evidence that he is entitled to \ntemporary total disability benefits from June 9, 2025, to the date of the hearing. Pursuant to A.C.A. § \n11-9-715(a)(1)(B)(ii), attorney fees are awarded \"only on the amount of compensation for indemnity \nbenefits controverted and awarded.\" Here, no indemnity benefits were awarded; therefore, no attorney \nfee has been awarded. Instead, claimant's attorney is free to voluntarily contract with the medical \nproviders pursuant to A.C.A. § 11-9-715(a)(4). \nRespondent is responsible for paying the court reporter's charges for preparation of the \nhearing transcript. \n IT IS SO ORDERED.                                                                                    \n        _______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":50298,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401902 CHAD HILL, EMPLOYEE CLAIMANT WASHINGTON COUNTY JUDGE, EMPLOYER RESPONDENT AAC RISK MANAGEMENT SERVICES, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 5, 2026 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Ar...","outcome":"granted","outcomeKeywords":["modified:2","granted:5","denied:3"],"injuryKeywords":["back","hip","lumbar","herniated","repetitive"],"fetchedAt":"2026-05-19T22:31:47.821Z"},{"id":"alj-H207924-2026-02-05","awccNumber":"H207924","decisionDate":"2026-02-05","decisionYear":2026,"opinionType":"alj","claimantName":"Jason Tarkington","employerName":"Conagra Foods Packaged Foods LLC","title":"TARKINGTON VS. CONAGRA FOODS PACKAGED FOODS LLC AWCC# H207924 February 05, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TARKINGTON_JASON_H207924_20260205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TARKINGTON_JASON_H207924_20260205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H207924 \n \n \nJASON TARKINGTON, EMPLOYEE   CLAIMANT \n \nCONAGRA FOODS PACKAGED FOODS LLC, EMPLOYER RESPONDENT \n \nESIS INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED FEBRUARY 5, 2026 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope County, \nArkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents are represented by JARROD S. PARRISH, Attorney, Little Rock Arkansas. \n \nOPINION/ORDER \n \n \n On  May 28, 2025, claimant filed Form AR-C, alleging a compensable injury on October 29, \n2022.   Claimant was represented at the time by Laura Beth York, who filed a Motion to Withdraw on \nSeptember 15, 2025, and was allowed to withdraw on October 8, 2025.   \nOn December 1, 2025, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time.   A hearing on respondent’s Motion to Dismiss was scheduled for \nJanuary 23, 2026.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was delivered to claimant on January  8, \n2026.    Claimant did not respond to respondent’s motion and did not appear in person at the hearing \non January 23, 2026.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nTarkington-H207924 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby  is  granted.    This  dismissal  is  pursuant  to  Commission 11  C.A.R. § 25-110(d) (formerly \nCommission Rule 099.13) and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2185,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207924 JASON TARKINGTON, EMPLOYEE CLAIMANT CONAGRA FOODS PACKAGED FOODS LLC, EMPLOYER RESPONDENT ESIS INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED FEBRUARY 5, 2026 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope Count...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:31:49.890Z"},{"id":"alj-H503075-2026-02-03","awccNumber":"H503075","decisionDate":"2026-02-03","decisionYear":2026,"opinionType":"alj","claimantName":"Rodney Brabon","employerName":"Mower Warehouse","title":"BRABON VS. MOWER WAREHOUSE AWCC# H503075 February 03, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRABON_RODNEY_H503075_20260203.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRABON_RODNEY_H503075_20260203.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H503075 \n \nRODNEY BRABON, EMPLOYEE     CLAIMANT \nMOWER WAREHOUSE, EMPLOYER     RESPONDENT \nUNITED FIRE & CASUALTY, CARRIER/TPA    RESPONDENT \n \nOPINION AND ORDER FILED FEBRUARY 3, 2026 \n \nA Hearing before Administrative Law Judge James D. Kennedy in Mountain \nHome, Arkansas, was held on January 21, 2026. \nClaimant was pro-se and failed to appear. \nRespondents were represented by Melissa Wood of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 21\nst\n day of January, 2026, in \nMountain Home, Arkansas, on Respondent’s Motion to Dismiss, for failure to prosecute \npursuant to Arkansas Code Ann. 11-9-702 and 11 C.A.R. 25-110(d), previously named \nRule 099.13 of the Arkansas Workers’ Compensation Commission. The claimant was pro \nse and failed to appear. The Respondents were represented by Melissa Wood of Little \nRock,  Arkansas. The  Claimant  had  previously  been  represented  by Frederick “Rick” \nSpencer, who was allowed to withdraw by an Order of the Full Commission, dated July \n18, 2025.  \n A First Report of Injury was filed on April 28, 2025, when the Claimant stated that \nhe felt a tearing and a protruding in his abdomen while lifting a Bimini top. An AR- C Form \nwas  filed  on  May  19,  2025, and the  Claimant  contended  he  had  suffered  a  left-sided \nhernia. A Motion to Dismiss was filed on November 19, 2025. The claim involved a hernia \ninjury which was accepted as compensable, with all appropriate benefits paid.   \n\nRodney Brabon – H503075 \n2 \n \nThe Respondents contend that the Claimant has not made a bona fide request for \na hearing within six months after the filing of the claim and has taken no steps since the \noriginal filing to pursue the claim. Additionally, the Claimant has failed to file a response \nto the Motion to Dismiss. The Claimant has not taken any action to prosecute the claim, \nand it has been more than six months since the Claimant has filed his AR-C or requested \na hearing. The contentions of the Respondents are found to be true. \n After proper and reasonable notice, a hearing was held on January 21, 2026, and \nthe Claimant failed to appear. The Respondents were represented by Melissa Wood, who \nrequested  that  the  matter  be  dismissed  pursuant  to 11  C.A.R.  110(d)  of  the  Arkansas \nWorkers’ Compensation Commission and the  provisions  of Arkansas Code Ann.  11-9-\n702.   \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion  to  Dismiss without  prejudice pursuant  to 11  C.A.R.  110(d) of  the  Arkansas \nWorkers’ Compensation Commission and  A.C.A.  11-9-702, based  upon  the  Claimant \nfailing to prosecute the claim within the last six months and after a meritorious application \nto  the  Commission  by  the  Respondents requesting  that  the  claim  be  dismissed after \nreasonable notice to all parties.    \nIT IS SO ORDERED. \n         ____________________________ \n                JAMES D. KENNEDY \n                ADMINISTRATIVE LAW JUDGE","textLength":3183,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H503075 RODNEY BRABON, EMPLOYEE CLAIMANT MOWER WAREHOUSE, EMPLOYER RESPONDENT UNITED FIRE & CASUALTY, CARRIER/TPA RESPONDENT OPINION AND ORDER FILED FEBRUARY 3, 2026 A Hearing before Administrative Law Judge James D. Kennedy in Mountain Home, Arkansas, was ...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["hernia"],"fetchedAt":"2026-05-19T22:31:37.375Z"},{"id":"alj-G201609-2026-02-03","awccNumber":"G201609","decisionDate":"2026-02-03","decisionYear":2026,"opinionType":"alj","claimantName":"Terri Lockard","employerName":"Saint Jean Industries, Inc","title":"LOCKARD VS. SAINT JEAN INDUSTRIES, INC. AWCC# G201609 February 03, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LOCKARD_TERRI_G201609_20260203.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOCKARD_TERRI_G201609_20260203.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G201609 \n \nTERRI LOCKARD, EMPLOYEE      CLAIMANT \n \nSAINT JEAN INDUSTRIES, INC., \nEMPLOYER         RESPONDENT #1 \n \nTRAVELERS PROPERTY AND CASUALTY, \nOF AMERICA  \nINSURANCE CARRIER/TPA      RESPONDENT #1 \n \nDEATH AND PERMANENT TOTAL \nDISABILITY TRUST FUND      RESPONDENT #2 \n \nOPINION FILED FEBRUARY 3, 2026 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 9th day of \nDecember, 2025, in Little Rock, Arkansas. \nClaimant is represented by Gary Davis, Attorney at Law, Little Rock, Arkansas. \nRespondents #1 are represented by Amy C. Markham, Attorney at Law, Little Rock, \nArkansas. \nRespondent #2 is represented by Christy L. King, Attorney at Law, Little Rock, \nArkansas.  \nSTATEMENT OF THE CASE \n A hearing was conducted on the 9\nth\n day of December, 2025. The parties stipulated \nthat the Arkansas Workers Compensation Commission has jurisdiction of the claim, there \nwas an employer/employee/carrier or TPA relationship existing at all pertinent times, and \nspecifically on October 18, 2010, and that the Claimant’s average weekly wage was such \nthat  she  is  entitled  to  a  compensation rate  of  $303.00  temporary  total  disability  and \n$227.00 permanent partial disability. The   Claimant   reached   maximum   medical \nimprovement  on  January  31,  2012,  and  the  Claimant  has  been  determined  to  be \npermanently and totally disabled.  Further, the Six Prior Opinions are Res Judicata and \nthe Law of the Case.  Additionally, it was stipulated that the regular indemnity payments \n\nTerri Lockard – G201609 \n2 \n \nto  the  Claimant  stopped  in  February  of  2021,  but  a  later  payment  was  made  to  the \nClaimant. The Trust Fund issued a Certificate of Acceptance on January 16, 2016, which \nset the Trust Fund’s takeover date as August 21, 2023.   \nThe primary issues as spelled out in the Prehearing Order and after statements by \nthe party’s representatives at the close of the hearing are the issues of a 20% penalty \ndue the claimant for late payments by Respondents #1 plus the issue of any applicable \nattorney fees due the Claimant.  The second matter before the Commission is the Trust \nFund’s contentions under what was previously known as Commission Rule 99.28 and \nnow  known  as 11  C.A.R.  25-123 that Respondents #1 failed  to  comply  with the  notice \nrequirements  as  required  by  the  Certificate  of  Acceptance  signed  by Respondents #1, \nwhere the agreed to contact the Trust Fund in the event they stopped making payments \nin any way.  Payments to the Claimant were stopped on or about February 28, 2021, and \nRespondents #1 did not notify the Trust Fund of this event and did not restart payments \nuntil September 12, 2025, and whether Respondents #1 should be penalized $10,000.   \nIt is noted that after the filing of the Responses to the Pre-hearing Questionnaires \nby all the parties, but prior to the actual hearing regarding this matter, that Respondents \n#1 issued checks totaling $38,805.50, with a check made out to the Claimant’s attorney \ndated  July  19,  2024,  for  the  sum  of  $4,850.69  which  consisted  of  the  withheld  portion \nfrom the Claimant’s portion for her part of her attorney fees.  A second check was issued \nto the Claimant dated July 22, 2024, for the sum of $33,954.69 for the unpaid disability \npayments.  \n As far as the actual contentions of the parties, the Claimant’s and Respondents’ \ncontentions are set  out  in their respective  responses  to  the  Pre-hearing  questionnaire, \n\nTerri Lockard – G201609 \n3 \n \nmade part of  the  record  without objection,  and  clarified  at  the  time of  the  hearing. The \nClaimant contends that she was being paid permanent total disability benefits which were \ndiscontinued  due  to  Respondents #1, apparently  having  difficulty  locating her.  The \nClaimant also contends that she has in fact been located and living at the same address \nwhere she resided when benefits were being paid. Claimant contends in her Pre-Hearing \nQuestionnaire her entitlement to renew  her  permanent  disability  benefits and her \nentitlement to  a  20  percent  penalty  in  the  sum  of $7761.11 along  with attorney  fees.  \nRespondents  #1 contend  that  the  permanent  total  disability  payments stopped  in \nFebruary  of  2021  because  all  indemnity  payments had  been  paid to  the  Claimant.  \nRespondent   #2   contend that   Respondents   #1   failed   to   comply   with   the   notice \nrequirements  of  Arkansas  Workers'  Compensation  Rule  099.28, now  codified and \nreferred  to  as 11  C.A.R.  25-123  and referred  to  in the Form  SF-7 (Certificate  of \nAcceptance) and that the Rule allows for a $15.00 per day penalty up to $10,000.00 for \na lack of notice and that a fine of $10,000 is called for due to lack of notice due to when \nRespondents #1  stopped  paying disability  payments  to the Claimant.    The  Trust  Fund \nstands ready to commence weekly benefits in compliance with A.C.A. 11-9-502 and has \nnot controverted the Claimant’s entitlement to benefits. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That an employer/employee/carrier or TPA relationship existed at all pertinent \ntimes and specifically October 18, 2010.  \n\nTerri Lockard – G201609 \n4 \n \n3. That  the  Claimant’s average weekly wage was sufficient for a  TTD  rate  of \n$303.00 and a PTD rate of $207.00. \n4. That Claimant reached MMI on January 31, 2012, and was determined to be \nPermanently and Totally Disabled. \n5. That  the  Six  Prior  Opinions  that  have  been  issued  in  this  matter  are  Res \nJudicata and the Law of the Case. \n6. That the regular indemnity payments stopped in February of 2021, but years \nlater in July of 2024, a total of $38,805.50 was paid to the Claimant, with the \nsum of $4805.59 withheld from the total amount of payment and this sum was \npaid to the claimant’s attorney as the Claimant’s portion of her attorney fees. \n7. That Claimant has satisfied the required burden of proof by a preponderance \nof the credible evidence that she is entitled to the sum of $7761.11, a twenty \n(20%) penalty pursuant to A.C.A. 11-9-802, for installment payments not made \nwithin 15 days after the payments became due. \n8. The Claimant is also entitled to attorney fees pursuant to A.C.A. 11-9-715 on \nthe  amount  of  $7,761.11, which  was  in  fact controverted.   Additionally,  if not \nalready  paid, Claimant’s representative is also entitled  to  Respondents  #1 \nportion  of  the attorney  fees  for  the  collection  of  the $38,805.50  paid  to  the \nClaimant on or about July of 2024.  This payment is entitled to interest pursuant \nto A.C.A.11-9-809.   \n9. Additionally it is found that the evidence preponderates that Respondents #1 \nfailed  to  file  the  required  Amended  AR-D notice with  the  Trust  Fund  within \nfifteen  (15)  days  of  the  change  of  status  when  Respondent  #1  stopped \n\nTerri Lockard – G201609 \n5 \n \npayments to the Claimant back in February of 2021, that payments were not \npaid over a period of three years, and that over two years had passed when \nRespondent #2, the Trust Fund requested information.  Additionally, it is found \nthat there  is  no  good cause for  the  stoppage  of  the  payments, and that \nRespondent #2 is entitled to a ten-thousand-dollar ($10,000.00) penalty to be \npaid by Respondents #1, forthwith, pursuant to 1 C.A.R.25-123.   \n10. If not already paid, the Respondents #1 are ordered to pay for the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The   Pre-hearing   Order   along   with   the Responses to   the Pre-hearing \nQuestionnaires of the parties were made part of the record without objection. All proposed \nexhibits were admitted into the record without objection. Claimant’s Exhibit One, which \nconsisted  of documentary  evidence, was admitted  into  the  record  without  objection.  \nRespondents #1 Exhibit One, which also consisted of documentary evidence, was also \nadmitted into the record without objection.  Respondent #2 Exhibit One, which consisted \nof a Certification of Acceptance /Payment Detail, was also admitted into the record without \nobjection.    Additionally, the parties  submitted  briefs  at  the  request  of  the Commission, \nand the briefs are “Blue-Backed” and made part of this opinion. \nThe sole witness was the Claimant, Ms. Terri Lockard, who testified that she lives \nat 80 Powell Road, Edgemont Arkansas, zip code 72044, and has lived there since 2009.  \nThe Claimant testified that in 2013, she was involved in a Workers’ Compensation hearing \nwhere it  was determined that she  was  totally  disabled  and that she received workers’ \ncompensation benefits, along with medical benefits. The records indicated she was last \n\nTerri Lockard – G201609 \n6 \n \npaid in February of 2021, but she recently received a check in the amount of $33,954.84. \nThe Claimant further testified that she failed to receive payments between 2021 up until \nthe recent payment of $33,954.84. There had been an ongoing discussion within the last \nseveral  months  about  the  possibility  of  settling  the  case,  with  the  exchange  of  some \nauthorizations  that had  been  requested  by  the insurance  company  and  Medicare.  She \nreceived the sum of $33,954.84 in September of 2025, but denied receiving any additional \nmoney from a workers’ compensation standpoint. (Tr. 5 – 8) \nUnder  cross  examination,  the  Claimant  denied  being  contacted  by  anyone from \nRespondents  #1.  When  asked about Respondents  #1 taking the  position  that  they \nattempted  to  contact  her  several  times  in 2021  and were unable  to make  contact,  she \nresponded that she was unaware of them attempting to contact her.  She denied being \ntold by her neighbors about any contact attempt and named four of her neighbors.  When \nasked if there was an agreement between herself and Respondents #1 in regard to the \nsettlement  of  her  case, she responded “I thought we were going to.”  She admitted \nreceiving a copy in 2024 of the Medicare set-aside report.  She admitted not being aware \nthe Medicare set-aside had to be submitted to Medicare for them to review and approve.  \nShe was aware that she had to sign certain authorizations.  The Claimant responded “I \nthink so” to the question of whether a long period of time went by when she had agreed \nto settle her case for all medical and indemnity and was waiting for the approval of the \nMedicare  set  aside.    She  was  not  aware  the  settlement  could  not  be  finished  until \nauthorizations  were  returned.   She  was also asked about  receiving  an authorization to \nsign back in October of 2024, and she responded “If it was ’24 - - I’m sorry, I’m - - Time \nhas kind of run together for me. I don’t - - Whatever I received, I - - I signed and returned.” \n\nTerri Lockard – G201609 \n7 \n \nShe was asked again about the authorizations sent to her attorney in October of 2024, \nand she responded that “Whenever I got anything from Mr. Davis, I returned it” and stated \nthat she did it promptly.  The following questioning then occurred: \nQ: Okay. So, if - - Then if you don’t remember returning any back in 2024, you’re \nsaying you don’t remember getting them, is that right. \nA: Yes, that’s right. \nQ: Okay.  So, we weren’t able to settle your claim as we had agreed because those \ndocuments were never returned to us.  Were you aware of that? \nA: No. \nQ:  Okay.  You  have  received  a  large  check  for  the  outstanding  amount that \nTravelers owed to you, is that right? \nA: Yes. \nQ: Okay. But your claim remains open at this point, is that right? \nA: Yes. (Tr. 8 – 12) \nOn  redirect,  the  Claimant  agreed  she  was  aware  of  the  fact  that  the  amount  of \nmoney owed to her by the insurance company from 2021 through 2024 had all accrued \nbefore there was a discussion about possibly trying to settle her case. She also testified \nthat she returned the authorizations sent to her and believed she had returned everything. \n(Tr. 13) \nOn  recross  examination,  the  Claimant  admitted  that  Craig  and  Tammy  Carlton \nwere her neighbors and that although she could not see their home, she thought that they \nlived  about  a  half  mile  from  her.  She  admitted  talking  to  them  and  having  their  phone \n\nTerri Lockard – G201609 \n8 \n \nnumber.  She  denied that they  ever  mentioned Respondents  #1 sent  someone  to  their \nhouse to determine if she lived in the area. (Tr. 14) \nUnder  questioning  by  the  Commission,  the  Claimant  admitted  that  she  had \ndifficulty receiving her mail at times and at times received mail addressed to others.  This \nled to further direct examination of the Claimant where she testified that she was receiving \nher checks in the mail back in 2021, at the same address.  Under further questioning by \nthe Commission, the Claimant admitted she had lived at her current location since 2009 \nand had three or four different mail carriers during that time. (Tr. 15 – 17) \nClosing statements were then allowed.  Respondent #2 argued that the Trust Fund \nwas  contending  under  old  Rule  99.28  of  the  Commission, now 11  C.A.R.  25-123,  that \nRespondents #1 failed  to  comply  with  the  notice  requirements  in  what  is  called  the \nCertificate  of  Acceptance which was  sent  and  signed  by  Respondents #1(Travelers \nInsurance), which provided it agreed to contact the Trust Fund in the event they stopped \npaying or changed their payments in any way.  There was no contact and payments were \nstopped February 28, 2021, and payments did not restart until September 12, 2025.  The \nRule allows for a $15.00-a-day penalty up to $10,000.00, and the Fund is requesting a \n$10,000.00 penalty for lack of notice due to when they stopped payment to the Claimant. \n(Tr. 18, 19) \nThe Claimant argued she was owed $38,805.55 prior to the Trust Fund taking over \nand admitted Respondents  #1  ultimately  paid  that  sum  after  removing  the  amount  for \nattorney fees.  They “flat didn’t pay the benefits” from February 24, 2021, till July 19, 2024, \nand  each  check  is  subject  to  a  20  percent  penalty which would  result  in  a  penalty  of \n\nTerri Lockard – G201609 \n9 \n \n$7761.11. Discussions about potentially trying to settle the claim would not have taken \nplace until after the accrual had already happened. (Tr. 19, 20)  \nRespondents #1 argued that Respondent Travelers  made  multiple  attempts  to \ncontact the Claimant with no success and even hired an investigator to perform an “Alive-\nand-Well” inquiry at the Claimant’s residence.  “They didn’t know if she was still around, \nif she was still alive and well, if she was hospitalized. They didn’t know. They just couldn’t \nget in contact her.” They sent an investigator to her home who spoke  to  a  couple  of \nneighbors.  Since  they  were  unable  to  get  in  contact  with  her,  payments  stopped. \nCommunications resumed in 2024 and an MSA was prepared, which had to be submitted \nto the  Centers  for  Medicare  and  Medicaid  Services to  effectuate  settlement.  These \nauthorizations were sent to the attorney for the Claimant and were not returned for over \na year. The Centers for Medicare and Medicaid Services have a six-month time span and \nif it’s more than six months old, they won’t review the same MSA.  Respondent  #1 \n(Travelers) contended that they were prepared to proceed with the settlement but couldn’t \nget an MSA reviewed by Medicare. The Claimant had received no medical treatment for \na long time and Respondents #1 did not hear from Claimant’s attorney until later in 2025, \nbased upon everything that had happened. That was when a hearing was requested. (Tr. \n20 – 22) \nAt this point the Claimant’s representative was allowed to respond and stated that \nhe contended that the Claimant still had an “open, active, available medical claim, that \nDoctor  Silas, the Claimant’s doctor had  retired, so consequently the  Claimant  needed \nRespondents #1 to make arrangement for an authorized treating physician.  Additionally, \nClaimant again contended that Respondents #1 stopped making payments in 2021 and \n\nTerri Lockard – G201609 \n10 \n \nthat they did not know why. The private investigator provided information to Respondents \n#1 that Claimant was still around. (Tr. 23)  \n The Claimant submitted 53 pages of documentary evidence without objection.  An \nALJ  Opinion  dated  September  21,  2013, found  that  an  employee-employer-insurance \ncarrier relationship existed on or about October 18, 2010, that the Claimant had reached \nthe end of her healing period on January 31, 2012, and that the Claimant had proven by \na  preponderance  of  the  evidence  that  she  had  been  rendered  permanently  and  totally \ndisabled by her compensable head injury of October 18, 2010, beginning on January 31, \n2012.  (Cl. Ex. 1, P. 1 – 30) \n An email from the Trust Fund dated May 2, 2024, to the attorney for Respondents \n#1, provided that the email was a follow up to the last year emails regarding the Claimant \nwhen Respondent #1 advised that they had not made any payments regarding medical \nor indemnity since 2020, and that an Agreed Decree of Divorce provided that the Claimant \nhad been awarded sole possession of the residence in Edgemont, AR.  The email also \nrequested  a  complete  indemnity  payment  history  for  an  audit  prior  to  the  Trust  Fund \nassuming payment of indemnity benefits. A second email from the Trust Fund dated May \n16, 2023, provided that it appeared that Respondents #1 had not paid any benefits in over \ntwo years and had closed their file. The email further provided that “Unless Travelers \nbegins  payments  at  some  point  in  the  future  satisfying  their  maximum  obligation  on \nindemnity  benefits,  the  Trust  Fund  will  not  have liability in this claim.” An email from \nRespondent  #1 (Travelers) dated  May  16,  2023,  from  an  individual  located  in  Texas, \nprovided  they  had  closed  their workers’  compensation  file after multiple  attempts  to \nconnect with the Claimant. Another email from the Trust Fund also dated May 16, 2023, \n\nTerri Lockard – G201609 \n11 \n \nprovided that the Trust Fund had still not received a payment history as of the date of the \nemail. A  Divorce  Decree  dated  November  6\nth\n,  2023,  provided  that  the  Claimant  would \nhave possession of the property in Cleburne County, Arkansas, which appears to be the \nresidence in Edgemont. (Cl. Ex. 1, P. 31 – 39) \n On or  about May  14,  2024,  an  email to  the  Commission from  the office  of  the \nattorney for  the  Claimant, provided  that  the  Claimant had  received  a  call  from  the \ninsurance adjuster advising her that the insurance carrier’s responsibility to pay her was \nover.  The  email  further  provided he  had  not been  informed  that her  benefits  had been \ndiscontinued. The Claimant is permanently totally disabled. (Cl. Ex. 1, P. 40)  A later email \nfrom the office of the Claimant’s attorney dated July 8\nth\n, 2024,  requested  the  payment \nrecord involving the Claimant. (Cl. Ex. 1, P. 41) \n A  follow  up  email  from  the attorney  for Respondents  #1  dated  July  14,  2024, \nprovided that after a thorough audit of the file payments, Respondents #1 acknowledged \nstill owing the Claimant the sum of $38,805.55 before the Fund takeover. (Cl. Ex. 1, P. \n42)  A Medicare Set-Aside Allocation along with three authorizations were mailed to the \nClaimant’s attorney on October 8, 2024, requesting that the authorizations be returned to \nthe attorney for Respondents #1 (Cl. Ex. 1, P. 43 – 49)  An email dated June 23, 2025, \nfrom counsel provided  that Respondents  #1 still  needed Claimant’s personal medical \nwhile  her  claim  was  closed, and  also  her  personal  health  notes  from  “All” of her \nphysicians.  An  email  on  the  same  date  from  Claimant’s  attorney provided  signed \nauthorizations that were “finally received” back from the Claimant. (Cl. Ex. 1, P. 50) An \nemail  dated  June  26,  2025, from the office of Claimant’s attorney, provided  that  the \nClaimant had stopped receiving medical treatment due to her doctor retiring and that she \n\nTerri Lockard – G201609 \n12 \n \nhad not had any medication in over a year. (Cl. Ex. 1, P. 51) Nearly a month later, on July \n23, 2025, an email from the Respondents #1 attorney provided that the Respondents no \nlonger wished to settle the claim. (Cl. Ex. 1, P. 51) An email from the Claimant’s attorney \ndated August 7, 2025, mentioned that his client being owed a couple of years of benefits \nand a twenty percent (20%) penalty on each installment. (Cl. Ex. 1, P. 53) \n Respondents #1 submitted 22 pages of non-medical evidence without objection. \nA document from Respondent Saint Jean Industries titled Investigation and dated April \n14,  2021,  provided that  three  attempts  to  contact  the  attorney for  the Claimant and \nschedule  a “virtual  alive  and  well  check” had been made and they  had not  received  a \nreturn  call at  that time. The  document went on  to provide  that they would schedule  an \ninvestigator to complete a neighborhood canvass. (Resp. #1, P. 1) \n An  “Alive  and  Well  Check  Report”  dated  March  23,  2021,  provided  that  a \nneighborhood canvass in the area of Claimant’s home had been made and it provided \nthat Claimant still resided at the address and appeared to be in good health. The report \nwent on to provide that the investigator placed a call to the office of the Claimant’s attorney \nthe following day, leaving a detailed voice message requesting a return call.  The report \nfurther provided that a call to the office of Claimant’s attorney was again made on March \n30,  2021,  March  31,  2021,  and  April  1,  2021, leaving  a  message  and  requesting  a \nreturned call. On April 6, 2021, the investigator received a return call from Linda at the \noffice of the Claimant’s attorney, and the investigator then made another call and again \nleft a voice message requesting a returned call. On April 9, 2021, the report provided that \nthe investigator spoke with Linda at the office of the Claimant’s attorney and explained \nthe nature of the call. He stated that he thought Linda felt skeptical of the investigator and \n\nTerri Lockard – G201609 \n13 \n \nthe call, but stated she would talk to Claimant’s attorney. The investigator then provided \nin his report that he received a return call and voicemail where she declined a virtual Alive \nand Well Check for the Claimant and stated that they could set up a three-way phone call. \nThe  investigator  then  placed  a  return  call  to  Linda  and  again,  left  a  voice  mail,  and \nrequested a return call. The final date in the report is April 21, 2021, when the investigator \ndrove to Edgemont, the provided address of the Claimant, where he talked to neighbors, \nMr. Craig and Ms. Tammy Carlton. Both reported that Claimant was still alive and well \nand both did not have any information about the Claimant’s marital status. (Resp. #1, P. \n2-5) \n Respondents #1 also included a copy of a check made out to Claimant’s attorney \nin the amount of $4,850.69, dated July 19, 2024, and a second check made out to the \nClaimant  in  the  amount  of  $33,954.86,  dated  July  22,  2024,  for  the  stated  period  of \nFebruary 24, 2021, through July 19, 2024. (Resp. #1, P. 6,7) \n On October 8, 2024, an email from the office of the attorney for Respondents #1 \nincluded a Medicare Set-Aside Allocation along with three authorizations to be returned. \n(Resp.  #1,  P.  8-14)  Finally, payment  details were  provided  for  indemnity, medical,  and \nexpenses. (Resp. #1, P. 15 – 22) \n Respondent  #2  also  submitted  two  pages  of  non-medical  documents  that  were \nadmitted without objection.  A Certification of Acceptance, Form SF-7 from Special Funds \nwhich referred to the Trust Fund and listed Claimant and Respondents #1, provided that \non  August  21,  2023,  the  Trust  Fund  would  assume  liability  provided  there  were  no \nchanges  in  the  status  of  the  beneficiary.    The  Certification  of  Acceptance  which  was \nsigned  by  a  representative  of Respondents  #1 provided that  the  Trust  Fund  would \n\nTerri Lockard – G201609 \n14 \n \nassume liability of benefits, provided the employer/carrier provided proof of compliance \npursuant  to  A.C.A.  11-9-502(b)(1), and that  in  the  event  of  a  change  of  status,  an \namended AR-D must be filed with the Trust Fund within 15 Calendar days of any such \nchange. (Resp. #2, P. 1) A list of payments was also provided. (Resp. #2, P. 2)  \nDISCUSSION AND ADJUDICATION OF ISSUES \nThe issues before the Commission at the time of the hearing involve attorney fees \nand penalties, both a 20% penalty claimed by the Claimant against Respondents #1 for \nlate indemnity payments  pursuant  to  A.C.A.  11-9-802 and additionally, a claim  by \nRespondent  #2,  the  Trust  Fund, for  a Ten-Thousand-dollar  ($10,000.00)  penalty  from \nRespondents  #1  for  failing  to  file  an  Amended  AR-D  within  fifteen  (15)  days  of the \nClaimant’s change of payment status  and for not  timely  notifying  the  Trust  Fund that \npayments to the Claimant had stopped back on February 18, 2021, and that these actions \nor  failures to  act  constitute  a violation  of  11  C.A.R.  25-123(c)(1).  It is noted  that \nRespondents #1 made a payment to the Claimant and her representative prior to the date \nof the hearing in this matter in the sum total of $38,805.50 which would have been the \nremainder owed to the Claimant by Respondents #1 prior to the Respondent #2, the Trust \nFund, properly taking over, and consequently the issue where Claimant contends in her \nPre-Hearing Questionnaire of a need for her to renew her Permanent and Total Disability \nbenefits has in fact been resolved. \nWhen  deciding  any  issue,  the  Commission  shall  determine  on  the  basis  of the \nrecord  as  a  whole,  whether  the  party  having  the  burden of  proof  on  the  issue has \nestablished it by a preponderance of the evidence. A.C.A. 11-9-704(c)(2).  The claimant \nhas  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \n\nTerri Lockard – G201609 \n15 \n \nbenefits. Stone  v.  Patel,  28  Ark.  App.  54,  759  S.W.2d  579  (Ark.  App.  1998). The \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W. 2d 442 (1947)   In determining whether claimant has met \nher burden of proof, the Commission is required to weigh the evidence impartially without \ngiving  the  benefit  to  either  party.  A.C.A.  11-9-704(c)(4). Gencorp  Polymer  Products  v. \nLanders, 36 Ark. App. 190, 820 S.W2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987). All claims for workers’ compensation benefits \nmust be based on proof. Speculation and conjecture, even if plausible, cannot take the \nplace of proof.  Dena Constr. Co. v. Herdon, 264 Ark. 791, 595 S.W.2d 155(1979); Ark. \nDepartment of Corrections v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); \nIt is the Commission’s exclusive responsibility to determine the credibility of the witnesses \nand the weight to give their testimony. Whaley v. Hardee’s, 51 Ark. App. 116, 912 S.W.2d \n14  (Ark.  App.  1995). The Commission is not required to believe either a claimant’s or \nanother witness’s testimony but may accept and  translate  into  findings  of  fact  those \nportions of the testimony it deems believable. McClain v. Texaco, Inc. 29 Ark. App. 218, \n780 S.W.2d 34 (Ark. App. 1989); Farmers Coop v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark. App. 2002). \nIn regard to the Claimant’s contention that she is entitled to a twenty percent (20%) \npenalty from Respondents #1, A.C.A. 11-9-802 (c) provides in relevant part: \n(c) If any installment payable under the terms of an award is not paid within \nfifteen  (15)  days  after  it  becomes  due,  there  shall  be  added  such  unpaid \ninstallment an amount equal to twenty percent (20%) thereof, which shall \nbe paid at the same time as, but in addition to the installment unless review \nof the compensation order making the award is provided in §§ 11-9-711 and \n§§11-9-712. \n\nTerri Lockard – G201609 \n16 \n \n \nIn the present matter before the Commission, it is clear and the parties agree, that \nthe  Claimant  was  found  to be permanently  and  totally  disabled due  to  a  compensable \nhead  injury  occurring on  October  18,  2010,  with  the  permanent  and  total  disability \nbeginning on January 31, 2012, per an opinion issued by an Administrative Law Judge \nand filed on September 24, 2023. It was stipulated at that time that the Claimant’s wages \nare sufficient  for  a  TTD  rate  of $303.00  and  a  PTD  rate of  $227.00. At  the time of  the \ncurrent  hearing  before  the  Commission,  it  was agreed that the Claimant had  in  fact \nreceived  the  appropriate  indemnity  payments up  until the  last  payment  being  made  in \nFebruary  of  2021.  The record  provides  that  Respondents #1  attempted  to  contact  the \nClaimant and for some reason was unable to do so. It is also clear from the evidence that \nthere  are  issues  with the mail  in the rural Cleburne  County area  north  of Greers  Ferry \nLake.  In  any case,  Respondents #1 further  investigated  the  situation by obtaining the \nservices of a private investigator, who after making numerous phone calls in an attempt \nto  contact the Claimant’s representative or the Claimant herself, physically  went  to  the \nproperty where Claimant was known to have resided, where she had previously received \nindemnity payments, and where the investigator performed an “Alive and Well Check \nReport.” Although the  investigator did  not  see  the  Claimant,  he  did  talk  to  the  nearest \nneighbors, who stated that the Claimant was in fact alive and well. The Claimant testified \nat  the  current  hearing that  she was  still  living  in  the  same  location  as  when she  was \nreceiving regular checks, and her testimony is found to be believable. It also appears that \nthere  have  been  some  communication  issues  involving  the  Claimant, such  as  not \nreturning her own representative’s correspondence, and that a question was raised about \nClaimant’s divorce proceedings. The Divorce Decree from Cleburne County awarded the \n\nTerri Lockard – G201609 \n17 \n \nresidence in question to the Claimant. An argument made by Respondents #1 was that \nat one point, the parties were in a discussion to settle this matter and had even progressed \nto the point that a Medicare Set Aside approval was sought from the Claimant, but this \ndiscussion appeared to cease when the Claimant mentioned the possibility of a need for \nadditional  medical. With all  of that  said,  it  is determined  that  it is clear that there is no \nlegitimate basis to terminate the  Claimant’s indemnity  payments for a  period from \nFebruary 18, 2021, until July of 2024, a period over three years, based upon the above \nfacts, and based primarily upon the Respondents #1 “Alive and Well Check Report” that \nthey in  fact had authorized.  Additionally, the  money  from  the  stopped  payments  had \naccrued  prior  to  any  discussion  about  the  settlement  of  the  claim. The  Claimant  has \nsatisfied the required burden of proof by a preponderance of evidence for the 20% penalty \nof $7,761.11 in regard to the late indemnity payments of $38, 805.50, pursuant to A.C.A. \n11-9-802.   \nIf not already paid, and this cannot be determined by the record, the Claimant’s \nrepresentative is entitled to the appropriate portion of attorney fees from Respondents #1 \nfor the $38,805.50 late indemnity payments recovered, plus additional attorney fees for \nthe controverted recovery of the $7761.11 penalty pursuant to pursuant to A.C.A. 11-9-\n715. This award shall bear interest at the legal rate pursuant to A.C.A. 11-9-809. \nAs  for  the  second penalty at  issue in  the current proceedings as requested  by \nRespondent #2, under current rule 11 C.A.R. 25–123, and previously named Arkansas \nWorkers’ Compensation Commission Rule 099.28, it is clear that Respondents #1 failed \nto comply with the notice requirements spelled out in the document called a Certificate of \nAcceptance that was sent to and accepted by a representative of Respondents #1 and \n\nTerri Lockard – G201609 \n18 \n \nwhich contained a signature  of  approval.  This  acceptance  provided Respondents #1 \nwould in  fact contact  the  Trust  Fund  in  the  event it stopped payment  or  changed the \npayments in any way. The proof was clear and unambiguous that Respondents #1 failed \nto notify the Trust Fund that it stopped payment to the Claimant on February 28, 2021, \nthat payment did  not  restart  until  September  12,  2025, and  by  this  action or  lack  of  it, \nRespondents #1 clearly  did  not  comply  with  the  Certificate  of  Acceptance which they \nsigned  and  approved. 11  C.A.R.  25–123  provides employers  or  their  designees  shall \nprovide notice to the Death and Permanent Total Disability Trust Fund within 15 days of \ncontroverting  a  claim  for  dependent  benefits and  that  failure  to  comply  with  the  notice \nrequirements  shall  result  in  a  penalty  of  $15  per  day  for  each  day  an  employer or  its \ndesignee fails to comply, up to a maximum of $10,000.00, unless, after a showing of good \ncause, failure to provide notice is excused by the Commission.    \nHere, an email from the Trust Fund dated May 16, 2023, provided that it appeared \nRespondents  #1  had  not  paid  any  benefits  in  years  to  the  Claimant. Respondents  #1 \nclearly failed to comply with the notice requirements as spelled out in the Certificate of \nAcceptance that was signed and approved by Respondents #1 representative and failed \nto notify Respondent #2, the Trust Fund, of this change of status. In regard to this issue, \nmany of the same facts applicable in regard to the issue of the first penalty above, are \nalso applicable here. Respondents #1 hired a firm to investigate the residency and where \nabouts of the Claimant and the report that they commissioned provided that the Claimant \nwas alive and well and residing at the very same residency that was awarded to her in a \ndivorce  decree. Additionally, the Claimant’s own testimony is found to be believable \nwhere  she  testified  that she  resided  in  the  same  location  when  she  was  receiving \n\nTerri Lockard – G201609 \n19 \n \npayments up and until they were stopped by Respondents #1. Here the proof has satisfied \nthe required burden  of  proof by  a  preponderance  of  the  evidence  that the indemnity \npayments to the Claimant were not stopped for good cause, and that Respondents #1 \nfailed to provide notice to the Trust Fund as required by statute and by the signed and \napproved Certificate of Acceptance.  Due to the fact that the period of time the Claimant \nfailed to receive any disability payments was for a period of over three years, it is found \nby the preponderance of the evidence that the full ten-thousand-dollar ($10,00.00) penalty \nis due and applicable and to be paid by Respondents #1 to Respondent #2.    \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, there is no alternative but to find that the Claimant has satisfied the required \nburden of proof by a preponderance of the evidence for an award of the 20% penalty of \n$7761.11 for the full amount of late indemnity payment of $38, 805.50, pursuant to A.C.A. \n11-9-802, plus attorney fees pursuant to A.C.A. 11-9-715 for the award of the $77611.11 \npenalty, plus the Respondents #1 portion of the attorney fees for the indemnity payment \nif not already paid, and this award shall bear interest at the legal rate pursuant to A.C.A. \n11-9-809. \nAdditionally, there is no alternative but to find that Respondent #2 (The Trust Fund) \nhas satisfied the burden of proof by a preponderance of the credible evidence that they \nare entitled to a $10,000 penalty applicable and due from Respondent #1 and payable to \nRespondent #2 pursuant to 11 C.A.R. 25–123. If not already paid, Respondents #1 are \nordered to pay the cost of the transcript forthwith. \nIT IS SO ORDERED.  \n      ___________________________ \n      JAMES D. KENNEDY \n         Administrative Law Judge","textLength":36624,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G201609 TERRI LOCKARD, EMPLOYEE CLAIMANT SAINT JEAN INDUSTRIES, INC., EMPLOYER RESPONDENT #1 TRAVELERS PROPERTY AND CASUALTY, OF AMERICA INSURANCE CARRIER/TPA RESPONDENT #1 DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED FEBRUARY...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:31:39.467Z"},{"id":"alj-H501837-2026-02-03","awccNumber":"H501837","decisionDate":"2026-02-03","decisionYear":2026,"opinionType":"alj","claimantName":"Thealin Stiles","employerName":"Hiram Shaddox Health And Rehab","title":"STILES VS. HIRAM SHADDOX HEALTH AND REHAB AWCC# H501837 February 03, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/STILES_THEALIN_H501837_20260203.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STILES_THEALIN_H501837_20260203.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H501837 \nTHEALIN STILES, EMPLOYEE      CLAIMANT \n \nHIRAM SHADDOX HEALTH AND  \nREHAB, EMPLOYER       RESPONDENT \n \nARKANSAS SELF-INSURANCE TRUST/ \nCCMSI, INSURANCE CARRIER/TPA      RESPONDENT  \n \n    OPINION FILED FEBRUARY 3, 2026 \n \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy, on  the 16\nTH\n day  of \nDecember, 2025, in Mountain Home, Arkansas. \nClaimant is represented by Mark Alan Peoples, Attorney at Law, of Little Rock, Arkansas. \nRespondents are represented  by Jarrod  Parrish,  Attorney  at  Law, of Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 16\nth\n day of December, 2025, to determine the \nissue of compensability of an alleged injury that the Claimant contends was sustained as \na work-related injury to her back as a result of a specific incident while employed by the \nRespondent employer on or about March 23, 2025, plus temporary total disability, medical \ntreatment, and attorney fees. The Respondents contend that the Claimant did not sustain \na compensable work-related injury on or about March 23, 2025, or at any other time while \nworking for the Respondent. A copy of the Pre-hearing order was marked “Commission \nExhibit 1” and made part of the record without  objection.  The  Order  provided  that  the \nparties stipulated that the Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim and that an employer/employee/carrier-TPA relationship existed on or \nabout March 23, 2025, the date when Claimant contends she sustained an injury to her \n\nThealin Stiles – H501837 \n2 \n \nback arising out of and in the course of her employment. The Claimant earned an average \nweekly wage of $691.70 which would entitle her to TTD/PPD benefits in the respective \namounts of $461.00 and $346.00, if the claim is found be compensable. The Respondents \ncontroverted the claim in its entirety.       \n The Claimant’s and the Respondent’s contentions are all set out in their respective \nresponses  to  the  Pre-hearing Questionnaire  and  made  a  part  of  the  record  without \nobjection. More  specifically,  the  Claimant  contends  she  injured  her  back  on  or  about \nMarch 23, 2025, and that she is entitled to medical treatment and TTD from the date of \nthe  injury  until  a  date  to  be determined,  plus  attorney  fees.  The  Respondents  contend \nthat the Claimant did not suffer a compensable injury on or about March 23, 2025, or at \nany  other  time  while  working  for  the  Respondents.  If compensability  is  established, \nClaimant has not established entitlement to additional medical or temporary total disability \nbenefits  and Respondents assert the Shipper’s defense, based upon the Claimant’s \nfailure  to  disclose  her  pre-injury  problems  and  limitations. The  witnesses consisted of \nThealin Stiles, the claimant, Emily Sueann Dailing, Assistant Director of Nursing for the \nRespondent, Shawania Michelle Young, Personnel Director for the Respondent, and Kari \nLynn Novak, the Director of Nursing for the Respondent. From a review of the record as \na  whole, to  include medical  reports  and other  matters  properly  before  the Commission \nand having had an opportunity to observe the testimony and demeanor of the witnesses, \nthe  following findings of  fact  and  conclusions  of  law are made  in accordance  with  Ark. \nCode Ann. 11-9-704. \n \n \n\nThealin Stiles – H501837 \n3 \n \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That an employer/employee relationship existed on March 23, 2025, the date \nof the claimed injury.   \n3. That the Claimant has failed to prove by a preponderance of the credible \nevidence that she sustained a compensable work-related injury to her back \non March 23, 2025. \n4. That all remaining issues are moot. \n5. If not already paid, the Respondents are ordered to pay for the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The  Pre-hearing  Order  along  with  the  Pre-hearing  questionnaires of the parties \nwere  admitted  into  the  record  without  objection. The Claimant  submitted an exhibit of \nmedical  records admitted  without  objection. The Respondents submitted two exhibits \nwithout objection, with exhibit one of medical records, and the second exhibit consisting \nof non-medical evidence.  \n The Claimant was the first witness to testify. She testified she was injured back in \nMarch  of  2025,  while  working  for  the  Respondent  in  Mountain  Home  as  a  Certified \nNursing Assistant. Her job consisted of taking daily care of the residents of the nursing \nhome,  changing  them,  feeding  them,  clothing  them,  and  transferring  them  to  the \nbathroom.  If  the  lights  go  on,  we respond to whatever  they  need. She  had  about  30 \nresidents that she was responsible for when she hurt her back on March 23, 2025. She \n\nThealin Stiles – H501837 \n4 \n \nanswered a call light and went to the room and the resident was covered with feces. He \n“was a two-assist, two to three-assist.” She explained that in other words, he required two \nor three people to help him because he was a very big guy. She went on to testify that \nshe went to a nurses station and asked for help, was told that they would be down  to \nassist, and that she then went to another nurses station and was also told that they would \nbe down, but that the resident “kept on blowing on his light so I went in there and I \nproceeded to take care of him myself.” In regard to obtaining help, the Claimant testified \n“they just failed to help me” stating they were busy. She went on to testify that she then \npulled the draw sheet to turn him and as she pulled, he went to the right side, and she felt \nsome pain in her middle to lower back at about T-12. “I proceeded to change him myself \neven after that because I just am that type of person.”  I got him cleaned up and rolled \nhim back on his back. She continued that her back was not feeling well, and she went \nstraight to the nurses’ station where she told the charge nurse. She was then given a drug \nscreen. (Tr. 6 – 9) \n She went on to state that they did a report and sent her to the emergency room at \nBaxter Regional, where she received X-rays and CAT scans. It was her understanding \nthat she was to have a follow up at Access Medical. She then went to Access Medical the \nnext  day  and  was  taken  off  work,  given  muscle  relaxers, and  told  to  see  a  specialist.  \nArrangements were made for the specialist, but she was told that the Respondents had \nrefused to pay for it. It was her understanding that any treatment that she received beyond \nthat point was going to be outside of workers’ compensation. She was eventually seen \nby Dr. Spurgeon in Springfield, where she continued treatment until the 5\nth\n of December. \nPrior to March 23, 2025, she was only experiencing regular arthritis with her back. She \n\nThealin Stiles – H501837 \n5 \n \nadmitted having preexisting lumbar issues with her back. (Tr. 10 – 12) When she injured \nher back on March 23, 2025, she hurt her back above the middle, above the lumbar. She \nadmitted having a fusion in the lumbar region back in 2017 or 2018, due to a car accident. \nShe also admitted doing pain management for lumbar pain every two months prior to the \nMarch 23 date. (Tr. 13, 14) \n Under cross examination, the Claimant was questioned about not mentioning the \npatient or the resident being covered in feces during her deposition. She responded that \nshe had to reposition him and that “I changed him.” (Tr. 14) She was also questioned \nabout  the  charge  nurse  not  documenting  something  happening  at  work  and she \nresponded that she did tell the charge nurse. She was also questioned about previously \nproviding that there was a scheduled repositioning of the resident every two hours but not \nmentioning that she had to clean and wipe the patient. She responded that she told the \ncharge  nurse.  (Tr.15)  When  questioned  about  earlier  not  bringing  up  the  extra  step \ninvolving the cleaning of the patient, she responded “I – I don’t have an answer for that.”  \nShe was then questioned about the folks at the Respondents attempting to prevent her \nworkers’ compensation claim and responded, “They have cliques there.” When asked \nabout stating that everyone in her deposition treated her nice, she responded “No.” She \nthen admitted under further questioning that she did not have any conflicts or arguments \nwith any of individuals who worked at the Respondent. (Tr. 16) She agreed that none of \nthe people she named in her deposition had any problem with her and that she had no \nproblem with them. When questioned about the people for the Respondent attempting to \ncontact her in March or April of 2025, in an attempt to see what she was going to do in \nregard  to  off  work  slips  or  FMLA,  she  responded  that  she  had  run  out  of  cell  phone \n\nThealin Stiles – H501837 \n6 \n \nminutes. Then  when  questioned  about  how  the  Respondent  received  text  messages \nduring that time-period, she responded that she did have some cell phone time available \nduring the same time-period. She also admitted to having two back surgeries before the \nalleged work accident and admitted that she continued to have back issues and frequent \nproblems  with  her  sciatic  nerve. She  also  admitted  that  at  one  point,  she  had  been \napproved for social security disability based upon her back issues and that her doctors \nhad instructed her to not lift over 50 pounds. She claimed that she had discussed that fact \nwith the Respondent when she was hired to go to work for them. (Tr. 17, 18) She also \nadmitted that she was told that if lifting more than 50 pounds were required, she was to \nget help, and she had agreed to the plan. She admitted to being approved on her social \nsecurity application for disability, for about a year due to her back and her “mental.” She \nagreed that she was completely incapable of working and earning a regular wage. She \nalso admitted that at some point she decided the SSDI benefits were too low, and she \nreturned to work without any medical assessment or change in her restrictions.   \nThe following questioning then occurred: \nQ:  So  how  does  that  work  if  you’re  completely  incapable,  under  restrictions, \ndrawing a benefit, and you decide that’s not enough money, you go to work without \nanything changing as far as your medical condition? Can you explain that for me? \nA: Because I have to make money to survive like everybody else. \nQ: Well, if you could go to work in the same condition, you had been in when you \nwere drawing social security disability, do you agree that you weren’t actually \ndisabled while you were drawing social security disability? \nA: I don’t agree to that. \n\nThealin Stiles – H501837 \n7 \n \nQ:  Okay.  Then  how  were  you  able  to  go  to  work  the  moment  you  decided  you \nwanted to go to work? \nA: Because I had to survive.     \nThe  claimant  agreed that  she  denied  having  any previous injuries,  symptoms, \nproblems, or conditions involving her mid-back when her deposition was taken. (Tr. 19, \n20) \n When the Claimant was questioned about the mention of mid back issues in her \nmedical records, she agreed that there was not going to be any mention of mid-back pain \nin her medical records until after the accident. The Claimant was then specifically asked \nabout page 62 of Respondent’s medical packet and the visit to the doctor where the report \nprovided for mid-back pain averaging seven (7) and spiking up to a ten (10) on November \n12, 2024, just a few months before the alleged injury date. When asked if she was aware \nof it, Claimant responded, “Apparently I was there.” She was then questioned about page \n70 of the Respondent’s medical packet where on December 10, mid-back pain was again \nmentioned in the medical. She was also questioned about mid-back pain being referred \nto on page 75 of Respondent’s medical packet on the date of January 7, 2025, and again \nabout mid-back  pain  being  referred  to  on  page  83  and  pages 84  through  86  of \nRespondent’s medical packet on January 29, 2025, where the reports mentioned trigger \npoints, trigger point spasms, and knots in her back. (Tr. 21) \n The following questions were then asked and responded to by the Claimant:   \nQ:  Assuming  these  medical  records  are  correct - - which I’m not hearing  you \ndispute that they - - they are - - you will agree with me a statement to me in your \n\nThealin Stiles – H501837 \n8 \n \ndeposition under oath that you did not ever have any prior symptoms, problems, \ninjuries, or conditions in your mid-back was not a true statement, was it?  \nA:  I’ve always had problems with my lower back, but not the mid-back. (Tr. 21) \nQ:  So, you dispute what’s documented in your doctor of your choosing’s records \nright there two, three, four, months before your accident date? \nA:  Well, if it’s there, it’s there. \nQ:  Okay. So, if it’s there and you’re telling the doctor you have mid-back pain and \nhe’s documenting that back pain, when you told me in your deposition you did not \never have any mid-back pain, that was not true, was it? \nA:  I guess not. No, I guess, because I don’t remember going to the doctor and \nhaving mid-back pain. \nQ:  You’re at the - - \nA:  But if it’s there, it’s - - \nQ: You’re at the doctor within 60 days of the alleged injury date, and your testimony \nunder oath is you don’t remember having any pain in your mid-pack, is that - - is \nthat your testimony? \nA:  I’m saying that’s my testimony. \nQ:  Okay. Well, is it true? \nA:  I don’t remember having the pain in my back. \nQ:  You suffered a fall within a month prior to March 23, 2025, didn’t you? \nA:  Yes, I did. \nQ:  The doctor noted on Page 91 of my medical packet, March 3, says you fell two \nor three weeks prior, and you felt a pop when you fell. \n\nThealin Stiles – H501837 \n9 \n \nA:  In my lower back, yes. \nQ:  Is that true? \nA:  In my lower back. \nQ:  You’ve discerned where the pop came from? \nA:  You could feel it. \nQ:  Okay, you don’t dispute that, that you fell and you felt a pop, though? \nA:  Oh, I knew when I fell, yeah. \nQ:  That was, I guess, the latter part of February of 2025? \nA:  Yeah. \nQ:  Okay. \nA: It had to do with my heart. (Tr. 22, 23) \nThe  Claimant  was  then  questioned  about  taking  Tizanidine,  Percocet,  and \nMeloxicam prior to her work-related accident and the Claimant admitted that she was in \nfact  taking  them.  (Tr.  24)  She  was  also  questioned  about  the  time  of  the  work-related \naccident and responded that it had occurred at approximately 1:00 o’clock on the 23\nrd\n.  \nShe was then asked about retaining counsel, and filing a Form C, by 12:40 the next day, \nless than 24 hours later. The Claimant responded “Yeah, because the doctor told me that \nthey would not cover my bills - -”. She went on to say that she was told they were not \ngoing to cover her bills. (Tr. 23) \nThe  Claimant  admitted  that  she  initially  presented  her  employer  with  some \ndocumentation  saying that  she  should be  off work a  week and  then  another  week, but \nthen didn’t bring Kari or anyone else any off-work slips. She also admitted the Respondent \nemployer was trying to find her and determine why she wasn’t working and not showing \n\nThealin Stiles – H501837 \n10 \n \nup for shifts she was already on. She also admitted that she never returned to work for \nrespondents. (Tr. 26) She also agreed that her employment was terminated after several \nweeks or maybe a month. (Tr. 27) \nOn  redirect,  the  Claimant  testified  that  she  had  not  returned  to  work  anywhere \nbecause she was unable to stand, sit, or lift, for a long period of time. At this point, the \nClaimant rested. (Tr. 28) \nThe  Respondents  called  Kimberly  Simino, as  their  first  witness, a  nurse  for \nRespondents, back  in  March  of  2025, and who had an opportunity  to  know  and  work \naround  the  Claimant.  Ms.  Simino  testified  that  she  participated  in  an  investigation \ninvolving the Claimant’s alleged injury. She agreed that the Claimant had told her that she \nwas hurting from a previous car accident and needed to go home. When asked if there \nwas any doubt in her mind the Claimant told her that the car accident was the source of \nher back pain, Ms. Simino replied “No, no doubt.” She agreed that she had no reason to \nmake up her response and would not receive a bonus for it. She also agreed that she had \nfielded reports before and turned them over to HR or the administration. She turned the \nreport over to her RN Supervisor and “I told her she said that she had hurt her back, and \nit was a chronic injury from a car wreck, and she needed to go to the hospital to get it \nchecked out.” (Tr. 30, 31)  \nThe Respondents then called Emily Sueann Dailing. She testified that she was a \nRegistered Nurse working for the Respondents as the Assistant Director of Nursing and \nwas specifically employed in that position on March 23, 2025. She was on call and fielded \nthe initial call from the Claimant while attending church. She agreed that Claimant had \nstated that her back was acting up. The following questioning then occurred: \n\nThealin Stiles – H501837 \n11 \n \nQ. And did you ask her if this was something that happened at work or whether it \nwas not work-related? \nA: Yes. \nQ: And did she represent to you that it was a non-work-related problem? \nYes. The exact word she used was “chronic.” \nQ: Chronic, okay. And was she asking to go to Access, the company doctor, or to \nthe ER. \nA: She asked to go to the ER. \nQ: Okay. And is it a practice of Hiram Shaddox (Respondents) to send people to \nthe ER for back strains, back pulls, shoulder, knee, if it’s not an emergent situation? \nA: No. If you are a workman - - If it’s a workman’s comp-related injury and it’s not \nemergent, we do not go to the ER. (Tr. P. 33 – 35) \nMs. Dailing went on to testify that being on-call really is for staffing emergencies \nwhen someone doesn’t come in or someone has to call out because she is sick and so \nwhen the Claimant was calling to notify her, so that if she did need to go, then I could find \ncoverage or then I could just go in. In regard to the conversation with the Claimant, Ms. \nDailing testified “I can remember the conversation vividly, everything about it.” She denied \nreceiving any bonus for preventing workers’ compensation claims and further stated, “In \nmy opinion, if you get hurt at work and we can - - and you need that workman’s comp, \nthat’s what it is there for, and we’re going to try our best to retain you because we are all \nabout retention.” (Tr. P. 36, 37) \nThe Respondents then called Shawnia Young, who testified that she works as the \npersonnel  director  for  the  Respondents. She  denied  that  anyone  in  administration  or \n\nThealin Stiles – H501837 \n12 \n \nmanagement was made aware of the Claimant’s preexisting back problems, when she \nwas  hired.  She  was  not  aware that the  Claimant  had  in  fact  had  two  back  surgeries \nincluding a fusion and she wasn’t aware of the contention that the Claimant made about \na permanent 50-pound lifting restriction. She also agreed that if she had been aware of \nthe significant back problems, the Claimant would not have been placed in a CNA position \nin the facility. She stated, “Our job description states that you have to be able to lift 35 to \n50 pounds and be able to push, pull, and move a distance.”  She also agreed that each \npatient has an individual care plan, and in regard to this particular patient, the plan called \nfor a “multi-person assist” to turn him. (Tr. P. 39 - 41)  \nThe  Respondents  then  called  Kari  Novak as  their  fourth  and final  witness.    She \ntestified that she is a Registered Nurse working in the Director of Nursing position for the \nRespondent. She knew and had worked with the Claimant and had interviewed her when \nshe was hired and that she had previously worked for the Respondents. The Claimant \nwas familiar with the type of work she would be doing. In the interview process, Ms. Stiles \nwould have provided a description of the job and the physical requirements. Ms. Novak \nwent  on  to  agree  that  the  Claimant  had  never  informed  them  of  a  50-pound  lifting \nrestriction and of hardware in her back. She stated, “If I had known that she had a lifting \nrestriction of 50 pounds, I would not have hired her for the position.” She also agreed that \neven if she did not have a lifting restriction, it would not have been appropriate for her to \nbe doing a transfer or repositioning of a very large patient. She also agreed that a bariatric \npatient was someone between 250 and 350 pounds and due to their size, they may be \nplaced in larger equipment and that they required two people to deal with their mobility. \nThis would have been documented in their care plan. “So, the expectation and the training \n\nThealin Stiles – H501837 \n13 \n \nis that nurses and CNA’s work together, so if the CNA cannot find another CNA to assist \nthem, then the nurse is the next appropriate person to ask.” She went on to testify that \nshe participated in trying to reach out to the Claimant multiple times to see if the Claimant \nneeded  to  be  on  the  work  schedule  and  that  the  Claimant  was  unresponsive  to  the \ninquiries. (Tr. 42 – 47)   \nThe Claimant’s medical Exhibit consisted of 27 pages. Claimant presented to \nAccess Medical Clinic on March 23, 2025, where she was seen by S. Leigh, APRN. The \nreport provided for an onset of symptoms on that day when the Claimant reached over a \nbed to pull a patient and felt a sharp pain in her right lower back that radiated down her \nleft leg. The Claimant reported a past history of back surgery. A CT of the lower spine \nwas  ordered  and  there  were  no  acute  findings.  (Cl.  Ex.  1,  P,  1,2)  The  discharge \ninstructions  did  not  give  a  date  for  restrictions  to  apply  through and  provided  that the \nClaimant should be able to participate in all duties and activities due to the lack of a date. \n(Cl. Ex. 1, P. 3,4) \nThe Claimant returned to Access Medical on March 28, 2025, where she was seen \nby  J.  Steves,  APRN, with  the  report  stating it was a follow up Workers’ Compensation \nvisit. The report provided that the Claimant was suffering from chronic back pain that was \nbeing treated with prednisone, and that Claimant was complaining of low back pain, which \nwas  increasing,  swelling  across  the  back  and  numbness  to  the  lateral  right  thigh.  The \nreport  provided  for  a  lumbar  sprain  with  tenderness  to  palpitation  of  the  lumbar  region \nmusculature  and  spine,  and  listed  a  low  back  strain,  a  lumbar  sprain,  and  right  sided \nsciatica. The report provided that the claimant did not work for 14 days. (Cl. Ex. 1. P. 5 – \n9) The Claimant then again returned to Access Medical on April 2, 2025, where she was \n\nThealin Stiles – H501837 \n14 \n \nagain seen by J. Steves, APRN. The report provided that it was a follow up for a Workers’ \nCompensation Claim. The report provided that the Claimant had not obtained X-rays yet \nand was assessed with low back pain, lumbar sprain, and right sided sciatica with lumbar \nradiculopathy. The Claimant was instructed to stay as active as possible but to stop or \nreduce any activity that caused pain. (Cl. Ex. 1, P. 10 – 14)   \nAn MRI of the spine both with and without contrast was taken on April 23, 2025. \nThis was compared to an MRI of October 29, 2022. Under impression, the report provided \nthat  there  was a postop  surgical  change  at  the  L4-5  level  without  spinal  or  foraminal \nstenosis with no abnormal enhancement. A right paracentral disc herniation was noted at \nT12 – L1 causing mild to moderate lateral recess narrowing. No cord compression was \nseen and no foraminal stenosis was identified and no other lumbar abnormalities were \nnoted. (Cl. Ex. 1, P. 15, 16) \nOn December  5,  2025,  the  Claimant  was  admitted  to  Cox  Health  in  Harrison, \ndischarged the next day, and seen by Dr. Angela N. Spurgeon. The report provided that \nthe Claimant presented to discuss imaging and was last seen in October for mid and low \nback pain with radicular pain in both legs. There was a history of a lumbar fusion with only \na  short  relief  of  pain  after  surgery  in  2023.  The pain was constant, and  the  Claimant \nreported balance problems. Under assessment and plan, the report provided for lumbar \nradiculopathy,  lumbar  spondylosis,  and  a  S/P  lumbar  spinal  fusion  at  L4-5.    Various \nprevious imaging modalities were reviewed. The Claimant’s primary complaint was for \nlow  back pain and  right  greater  than  left  leg  pain.  Findings  were  suggestive of  chronic \nright  radiculopathy.  The  report  provided  it  was  felt  that  the  Claimant  would  not  benefit \n\nThealin Stiles – H501837 \n15 \n \nfrom a lumbar fusion, but a spinal cord stimulator was discussed and agreed to.  (Cl. Ex. \n1, P. 17 – 21) \nThe Claimant had previously been admitted to Cox Health on October 3, 2025, for \none day. The report on the above date provided the Claimant presented to discuss mid \nand low back pain with radicular pain in both legs. The report provided that the Claimants \nhistory provided for a previous neck surgery and a back surgery in 2023.  The report again \nprovided that Claimant’s primary complaint was low back pain and right-greater-than-left \nleg pain. The Claimant was seen by Dr. Angela N. Surgeon. (Cl. Ex. 1, P. 22 – 26)   \n The Respondents also  submitted  a medical  exhibit  that  was  admitted  into  the \nrecord  without  objection. An  MRI  of  the  lumbar  spine  from  Baxter  Regional  dated \nSeptember  29,  2021,  provided  there  was  a  mild  degenerative  concentric  disc  bulge  at \nT12-L1. Additionally moderate bilateral facet degeneration hypertrophy at L4-5 as well as \na  synovial  cyst  coming  from the  facet  on  the  left was  observed.  This  caused severe \nsynovial foraminal stenosis on the left at L4-5 and also displaced the right L5 nerve root \nwithin the lateral recess. Additionally, there was a mild stenosis on the left at L4-5. (Resp. \nEx. 1, P. 1,2) A CT of the Lumbar spine dated May 15, 2022, again from Baxter Regional, \nprovided postoperative findings at the level of L4-5, and within the posterior soft tissues. \nIf the symptoms persist, the report provided that an MRI of the Lumbar spine might be \nbeneficial. (Resp. Ex. 1, P. 3)   \n On June 15, 2022, the Claimant presented to Baxter Regional for an MRI of the \nLumbar  Spine  and  a  comparison  with  the  CT  from  May  15,  2022,  and  the  MRI  from \nSeptember 29, 2021. The report provided under impression that a previous laminectomy \nat  L5  showed  no  apparent  complication.  Some  edema  in  the  pars  intra- articularis \n\nThealin Stiles – H501837 \n16 \n \nbilaterally at L5 might indicate developing spondylolysis. There was no apparent fracture \nor bony  defects.  Moderate  bilateral  facet  degenerative  change  at  L4-5  and  mild \ndegenerative  disc  changes were  seen.  No  spinal  stenosis was  seen  but  moderate \nbilateral foraminal stenosis was observed at L4-5. (Resp. Ex. 1, P. 4,5) \n Another CT scan was provided at Baxter Regional on September 2, 2022. Post-\nsurgical changes along  with spinal  spondylosis  was  again  noted.  There was  air  at  the \nlevel of the L4-5 region adjacent to the thecal sac, but it could have been arising from the \nfacet joint. There was more air in this region on the previous study of May 15, 2022, but \nthe patient was recently postoperative at that time I believe. (Resp. Ex. 1, P. 6) \n The Claimant obtained another MRI of the lumbar spine from Baxter Regional on \nOctober  29,  2022.  The  report  provided under  impression  that  there  was  a  previous \ndecompression at L4-5 and there was bilateral facet joint effusions and bilateral synovial \ncysts, which were unchanged on the right and new on the left. The results in the narrowing \nof the left lateral recess might impinge upon the traversing left L5 and left S1 nerve roots. \nThere was also a mild narrowing of the central canal. The right sided synovial cyst was \nunchanged. (Resp. Ex. 1, P. 7,8) \n Chart notes from the Washington Regional Family Clinic were also introduced for \nthe period of November 29, 2022, through January 10, 2023. The Claimant was taking \nSertraline,   Gabapentin,   Percocet,   Levothyroxine   Sodium,   Meloxicam,   Tizanidine, \nLamotrigine,  Abilify,  and  Trazodone. The  records  provided  the  Claimant  had  received \nneck  and  back  surgery  along  with  multiple  other  surgeries.  The  Claimant  presented  in \nNovember  of  2022  for  a  review  of  issues involving her  lumbar  spine.  She  had a  past \nhistory of ACDF (a type of surgery involving the neck) in 2018 and chronic low back pain \n\nThealin Stiles – H501837 \n17 \n \nwith radiation of pain along the posterior lateral left leg to the foot. She reported balance \nissues.  A  neurosurgery  questionnaire  provided  that  her  worst  pain  was  with  her  back, \nneck, and leg, and that she had suffered this pain since 2018. The chart notes referred to \nX-rays and MRI’s involving Claimant’s spine. It was noted that Claimant began taking \nPercocet as one of her medications. During this time period, there was a discussion about \nconservative treatment versus surgical treatment for the Claimant’s lumbar  pathology. \nThere was a reference to chronic progressive back and bilateral pain. (Resp. Ex. 1. P. 9 \n– 31) \n On  January  6,  2023,  through  January 7,  2023, while  at  Washington  Regional \nMedical Center, Claimant received a L4-5 posterior instrumented fusion with an insertion \nof a biomechanical interbody device via transforaminal lumbar approach for disc space \narthrodesis at L4-5, plus a L4-5 posterolateral lumbar arthrodesis, with a decompression \nlumbar laminectomy at L4-5, bilateral L4-5 facetectomies with bilateral foraminotomies, \nand a harvesting of a local autograft and also the use of a cadaveric autograph. The report \nwent on to provide that there were no issues or complications noted during the procedure. \n(Resp. Ex. 1, P. 32 -39) \n A second set of Chart Notes from the Washington Regional Family Clinic for the \nperiod between February 14, 2023, thru July 14, 2024, provided that the Claimant was \nstill receiving X-rays of her lumbosacral spine and still on multiple medications with many \nof the medications commonly used for pain, such as Oxycodone. X-rays taken in February \nof  2023, provided  that  the  various pieces  of hardware  placed  in  her  spine  were  in  the \nproper place with good alignment and there was no evidence of hardware failure.  The \nsurgical incision appeared well healed with no signs of infection. It also appeared that the \n\nThealin Stiles – H501837 \n18 \n \nClaimant  continued  to suffer  issues  with her back and again  returned for X-rays  of the \nlumbar  region  of her  back  on  March  14,  2023,  and  the  findings  provided  the  fusion \nhardware was intact but that posterior decompressive laminectomy changes were noted. \nStable  multilevel  facet  degeneration  was  noted.  X-rays  of  the  lumbosacral  spine  were \nagain  taken  on  August  1,  2023, which showed  stable  alignment  with  no  evidence  of \nhardware failure. The report further provided that an MRI of the cervical spine was going \nto be repeated for Claimant’s known pseudoarthrosis and C6 radiculopathy. A gradual \nincrease in activity for the lumbar spine was discussed. The records seen to provide that \nnumerous clinic appointments were not documented from March 7, 2023, thru July 17, \n2024. (Resp. Ex. 1, P. 40 – 60) \n Chart  notes  from  Michael  Mann,  APRN,  from  July  30,  2024,  thru November  12, \n2024, provided that the Claimant presented for pain in her neck, middle back, and lower \nback.  Claimant  stated the  pain  was  mainly  in  her  neck  and  back.  An  inspection  of  her \nlumbar spine revealed hyperextension of her lumbar spine and bilateral palpitation of her \nlumbar facets reproduced back pain. (Resp. Ex. 1, P. 61- 65) \n Another set of chart notes from the Washington Regional Family Practice Clinic for \nthe period of November 18, 2024, thru November 25, 2024, provided that the Claimant \ncontinued to suffer lumbar back and neck pain with an increased frequency of headaches. \n(Resp. Ex. 1, P. 66 – 69) \n The records provided that the Claimant again presented to Michael Mann, APRN, \non multiple occasions for the period between December 10, 2024, thru January 29, 2025, \nwith chronic pain complaints. The pain locations were her lower back, mid back, and neck, \nwith the Claimant reporting that the pain was as high as a 9 out of 10. The plan provided \n\nThealin Stiles – H501837 \n19 \n \nfor  the  treatment  of  a  chronic  pain  syndrome.  The  Claimant  was  still  being  prescribed \nOxycodone for her pain. The Claimant returned on January 29, 2025, for an appointment \nfor her chronic pain, but there was a lengthy evaluation regarding the Claimant’s recent \ninjuries to her left knee and wrist. The report provided that the multisite pain was currently \nworse in her neck, mid back, and low back. (Resp. Ex. 1, P. 70 – 87) \n The Claimant again returned to the Washington Regional Family Clinic on March \n3, 2025, for X-rays of her lumbosacral spine. The records provided that the Claimant had \napparently  fallen on the snow, and  she  had noticed  increased  low back  pain  with  pain \nextending into her lateral legs with numbness and tingling into the planter surface of her \nfeet. (Resp. Ex. 1, P. 88 – 92) \n On March 21, 2025, the Claimant again presented to Michael Mann, APRN, and \nthe  chart  notes provided  for  a  refill  request  for  Hydrocodone.  (Resp.  Ex.  1,  P.  93)  The \nClaimant then presented to Baxter Regional Medical Center on March 23, 2025, for a CT \nwhich was compared to the CT from February 21, 2025.  Under impression, the report \nprovided for the finding of no acute process, but did mention the previous posterior fusion \nand  disc  fusion  at  L4-5  and  a  laminectomy  at  L4-5  through  L5.    Degenerative  lumbar \nspondylosis without stenosis was also noted with mild chronic foraminal stenosis on the \nleft at L2-3, mild bilaterally at L3-4, and mild on the right at L4-5. (Resp. Ex. 1, P. 94-96)   \n The Respondents also submitted non-medical evidence that was admitted without \nobjection as Respondents Ex. 2. The first set of documents were unemployment records \nfrom  the  Arkansas  Department  of  Workforce  Services  for  the  period  dated  March  16, \n2022. These documents provided that the Claimant applied for unemployment benefits \non  March  8,  2022,  for  the  reason  of  a  personal  illness,  injury,  and  due  to  a  personal \n\nThealin Stiles – H501837 \n20 \n \ndisabling  condition. The  documents  provided that  the  Claimant  was  employed  by  Twin \nLakes Therapy and Living, when she became unable to work. The employer responded \nthat the Claimant started work on July 21, 2021, with employment ending on February 25, \n2022. A BRMC Neurosurgery and Spine note provided that the Claimant could return to \nwork on March 7, 2022, with no more than two hours of continuance standing or walking \nand  that  she  required frequent  breaks.  The  records  provided  that  the  Claimant  was \ndischarged from work on March 8, 2022, due to the Claimant having violated company \npolicy and apparently failing to call in and failing to show. The records further provided \nthat due to a disabling injury, the Claimant was unable to perform suitable work and that \nconsequently,  she  was  ineligible  for unemployment  benefits.  The  records showed \nClaimant did not attempt to preserve her job prior to leaving. (Resp. Ex. 2, P. 1 – 25) \n A second set of documents from the Arkansas Department of Workforce Services \ndated January 12, 2023, provided that the Claimant again filed for unemployment benefits \nwith her employer being the Springs of Creekside Health, with her first day of work there \nbeing July 21, 2022, and her last day of work being November 25, 2022. The response \nfrom  the  employer  provided  the  Claimant  took  a  voluntary  medical  leave  beginning \nNovember 25, 2022, and that the last time they touched base with her, the Claimant was \nwaiting for surgery. (Rest. Ex. 2, P. 26 -32) \n A third set of documents from the Arkansas Department of Workforces Services \ndated February 2, 2023, provided that the Claimant again filed for unemployment benefits \nwith her employer again being the Springs of Creekside Health. The Claimant contended \nshe was unable to perform her normal job duties due to a personal disabling condition \nand that her job made her back issue worse. The documents provided that the Claimant \n\nThealin Stiles – H501837 \n21 \n \nasked for and was granted a leave of absence. The response from the employer provided \nthat the Employee took a voluntary medical leave of absence and had not returned and \nthat they had not heard anything about a return-to-work date. Her employment began on \nJuly 21, 2022, and ended on November 24, 2022. (Resp. Ex. 2, P. 33-44) \n A fourth set of documents from the Arkansas Department of Workforce Services \ndated July 8, 2024, provided that the Claimant again filed for unemployment benefits on \nJanuary  8,  2024,  with  the  employer  being  Gassville  Nursing  Center.  The  Claimant \ncontended that the employer did not follow its policies and that the reason for her absence \nwas personal illness. The employer responded that the Claimant’s last day of work was \nDecember 29, 2023, and that she texted her supervisor stating that she quit. (Resp. Ex. \n2, P 45 – 50) \n The records also included documents from Respondent Hiram Shaddox Health & \nRehab dated March 12, 2025, which included the job description for a Certified Nursing \nAssistance. Among the multiple requirements spelled out, the employee must be able to \npush, pull, move, and/or lift a reasonable number of pounds (35/50) to a reasonable height \n(3-5 ft.) and be able to push, pull, move, and/or carry such weight a reasonably minimum \ndistance (5-10 ft.). (Resp. Ex. 2, P. 51 – 61) \n The Respondents also included text messages and the dates of phone calls from \nMarch  15,  2025, through  April  25,  2025,  between  the  Claimant  and  the  Respondent \nemployer.  The records  provided there  were  numerous  texts  and  calls  made  to  the \nClaimant by  the  Respondent. It  appeared that  the  Claimant  did  respond  on  Sunday, \nMarch 23 at 10:47, stating “Ok thanks for checking on me.”  A response to the Claimant \nprovided the Respondent had changed the Claimant’s schedule to “3p-7p until you can \n\nThealin Stiles – H501837 \n22 \n \ndo an 8-hour shift and have your back issues under control.”  One text inquired about the \nClaimant’s restrictions and Claimant responded that she was having back issues.  She \nlater texted, “Call my lawyer, I’m not a load (sic) to talk about case in hand.” Another text \nfrom the Respondent provided that the Claimant was unexcused until they received the \npaperwork  requested.  The  Claimant  was  also  questioned  about  her  leave  of  absence \npaperwork.  The  Claimant  eventually  asked  about  workers’  compensation  and  was \ninformed that this matter was not a workers’ compensation claim. (Resp. Ex. 1, P. 62 – \n80) \nA Form AR-N dated March 23, 2025, provided that the Claimant’s date of injury \nwas March 23, 2025. (Resp. Ex. 2, P. 82) Claimant filed an AR – C form dated March 24, \n2025, stating she injured her back in a work-related injury. (Resp. Ex. 2, P. 83) \nEmployee Memorandum Witness statements were also made part of the record. \nA facility employee signed a statement on March 23, 2025, that the employee was outside \non  break  with  another  employee  when  the  Claimant  came  out.  The  employee  was \napparently  also  having  back  issues  and  was  telling  another  employee  about  what  the \ndoctors plan was for her. The Claimant overheard the conversation and told the employee \nthat she “wouldn’t do what they all are telling me to do.”  The Claimant went on and stated \nthat  she  had  hurt  her  back  while  turning  a  patient.  A  second  Employee  Memorandum \ndated March 25, 2025, provided that the CNA (referring to the Claimant) stated that her \nback hurt from a previous car wreck and asked to go home. The memorandum from a \nLPN  further  stated  that  the  Claimant  had  not  asked  for  assistance  from her to  turn  or \ntransfer a resident. The third Memorandum which was dated March 26, 2025, and made \nby Emily Dailing, who also testified, provided that she was on call when she received a \n\nThealin Stiles – H501837 \n23 \n \nphone call from the Claimant, who stated that her back was hurting and that she needed \nto go to the ER. The memorandum provided that the back issue was a chronic problem \nand that she had back pain for a while. The Claimant was questioned about this being a \nworkers’ compensation claim, and the Claimant responded no, that it had been going on \nfor a while. (Resp. Ex. 1, P. 84 – 86)       \n A First Report of Injury Form was prepared on April 2, 2025, which provided that \nthe  Claimant  suffered  a  sprain/strain  of  the  lumbar  back.  (Resp.  Ex.  2,  P.  87)  A \nTermination of Employment document dated April 25, 2025, provided that the Claimant’s \nemployment was terminated and that her last day of work was March 23, 2025. (Resp. \nEx. 2, P. 88) \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving by a preponderance of the evidence that she is entitled to compensation benefits \nfor the claimed injury to her back. In determining whether the claimant has sustained her \nburden of proof, the Commission shall weigh the evidence impartially, without giving the \nbenefit of the doubt to either party. Ark. Code Ann. 11-9-704. Wade v. Mr. Cavananugh’s, \n298 Ark. 364, 768 S.W. 2d 521 (1989). Further, the Commission has the duty to translate \nevidence  on  all  issues  before  it  into  findings  of  fact. Weldon  v.  Pierce  Brothers \nConstruction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). \nIn regard to the current claim before the Commission, Claimant contends that she \ninjured her back on March 23, 2025, while attempting to move or turn a large resident of \nthe facility who was covered with feces and flashing his call light. She testified that she \nattempted to obtain help, and when help failed to arrive, she pulled the draw sheet to turn \n\nThealin Stiles – H501837 \n24 \n \nthe patient by herself and as she pulled, he went to the right side of the draw sheet, and \nshe felt some pain in her lower back. After this occurred and once finished with her task, \nshe  went  to  the  nurses’ station, told  the  charge  nurse about  what  happened, and  was \nthen sent to the emergency room. She testified that the injury to her back was above the \nlumbar  region  and  in  the  middle of  her  back.  She stated  that  she was  sent  to  the \nemergency room at Baxter Regional where she received X-rays and CAT scans. \nUnder  cross  examination,  the  Claimant  was questioned  about failing  to mention \nthat the resident was covered with feces during her deposition. She responded that “I – \ndon’t have an answer for that.” When the Claimant was questioned about the Respondent \nattempting to contact her in regard to off work slips and FMLA, she responded that she \nhad run out of cell phone minutes. Then when questioned about the Respondent receiving \ntext messages from her, she then responded that she had some cell phone time available \nduring that period. She  admitted having two  previous  back  surgeries  and that  she had \nbeen  instructed  by  her  doctors  to  not  lift  over  50  pounds.  She  claimed  that  she  had \ndiscussed that fact with the Respondent when she was hired. She also admitted that she \nhad been approved for Social Security Disability but could not survive on the payments \nand  then  returned  to  work. She agreed  that  she  was  completely  unable  to  work and \nreturned to work without a new medical assessment. \nThe Claimant was also questioned about her mention of mid back pain, and she \nstated that she continued to hold the position that there was not any mention of mid back \npain in her medical records. When she was specifically questioned about the appearance \nof mid-back pain appearing in her medical records with the pain measuring a seven (7) \nand  spiking  to a ten  (10) on  November  24, 2024,  a  date prior  to the claimed Workers’ \n\nThealin Stiles – H501837 \n25 \n \nCompensation Injury, and when asked if she was aware of it, she responded “Apparently \nI  was  there.”  Under  additional  cross  examination,  she  stated  she  had  always  had \nproblems with her lower back but not her mid-pack. When specifically questioned about \nmedical records providing for mid-back pain, she responded that she did not remember \ntelling  a  doctor  that,  even  though  that  particular-doctor  visit  was  within  60  days  of  the \nalleged injury date. When asked if no mid-back pain was her testimony, she responded \n“I’m saying that is my testimony.” \nThe  Respondents  called  nurse  Kimberly  Simino  who testified  that  she  knew  the \nClaimant and had participated in an investigation of the Claimant’s alleged injuries. She \ntestified that the Claimant had told her that she was hurting from a previous car wreck \ninjury and needed to go home. Emily Sueann Dailing, a Registered Nurse who worked \nfor  the  Respondents  as  the  Assistant  Director  of  Nursing, and  who  was on  call  and  at \nchurch when she received a call from the Claimant, testified that the claimant stated on \nthe phone that she was suffering from a chronic problem and asked to go to the ER. The \nRespondents  also  called  Shawnia Young,  the  personnel  director  for  the  Respondents. \nShe testified that no one in administration or management was aware of the Claimant’s \nback  problems  when  she  was hired, and they  were not  aware  of  the  50-pound  lifting \nrestriction  and  the  Claimant’s  preexisting  back  problems.  The  final  witness  for  the \nRespondents was Kari Novak, a Registered Nurse, and the Director of Nursing for the \nRespondents.  She testified that she would not have hired the Claimant if she was aware \nof  her  lifting  restriction  and  even  without  the  restriction,  the  Claimant  should  have  not \nbeen moving bariatric patients by herself. She also testified that she had reached out to \n\nThealin Stiles – H501837 \n26 \n \nthe  Claimant  multiple  times after  the  alleged  work  incident and  the  Claimant  was \nunresponsive.    \nIn regard to the claimant’s medical that was entered into the record, the initial visit \nto Access Medical Clinic on March 23, 2025, and S. Leigh, APRN, included a CT of the \nlower spine that provided for no acute findings. The Claimant returned to Access Medical \non  March  28,  2025,  and  the  report  provided that it  was  a  follow  up  for  a  workers’ \ncompensation claim and that the Claimant was suffering from chronic back pain that was \nbeing treated by Prednisone. The Claimant’s medical provided for a history of lower and \nmid back pain, with a lumbar fusion in 2023. The records also provided for a neck surgery \nin 2023. \nThe   Respondents   medical   exhibit   provided Claimant   received an   MRI   on \nSeptember 29, 2021, which provided for a mild degenerative concentric disc bulge at T12-\nL1, along with moderate bilateral facet degeneration hypertrophy at L4-5.  She received \na second MRI at Baxter Regional on May 15, 2022, of her lumbar spine and the report \nmentioned  a previous  CT  on  May  15,  2022,  and  the  two  imaging  modalities  were \ncompared.  \nThe multiple medical records entered into the record by the Respondents provided \nthat the Claimant had received multiple MRI’s and X-rays  regarding  her  back,  was  on \nvarious pain killers, and had been seen by Michaeal Mann, APRN, for chronic back pain \nfor the period before the alleged work related incident as recently as December 10, 2024, \nthrough  January  29, 2025, and  was  seen for  pain  in  her neck, middle  back, and  lower \nback. The Claimant’s last visit to Michael Mann, APRN, prior to the alleged workers’ \ncompensation claim was on March 21, 2025, for a refill of Hydrocodone. It is also noted \n\nThealin Stiles – H501837 \n27 \n \nthat when the Claimant presented to Baxter Regional Medical Center on March 23, 2025, \nfor a CT, which was compared to a previous CT on February 21, 2025, the report provided \nfor no acute process.    \nUnder workers’ compensation law in Arkansas, a compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability and must  be  stated  within  a  degree  of  medical  certainty. \nSmith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).  Speculation  and \nconjecture cannot substitute for credible evidence. Liaromatis v. Baxter County Regional \nHospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).  More  specifically,  to  prove  a \ncompensable injury, the claimant must establish by a preponderance of the evidence: (1) \nan injury arising out of and in the course of employment; (2) that the injury caused internal \nor external harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in A.C.A. 11-9-\n102 (16) establishing the injury and (4) that the injury was caused by a specific incident \nand identifiable by time and place of occurrence.  If the claimant fails to establish any of \nthe requirements for establishing the compensability of the claim, compensation must be \ndenied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d 876 (1997). \nAn  injury for  which  the  claimant  seeks  benefits must  be  established  by  medical \nevidence supported by objective findings which are those findings that cannot come under \nthe voluntary control of the patient. A.C.A. 11-9-102 (16). It is also important to note that \nthe claimant’s testimony is never considered uncontroverted. Lambert v. Gerber Products \nCo. 14 Ark. App. 88, 684 S.W.2d 842 (1985).  \n\nThealin Stiles – H501837 \n28 \n \nHere the medical records clearly provide that the claimant suffered from lower and \nmiddle back issues and even neck problems for a number of years prior to the alleged \nworkers’ compensation injury. Under Arkansas Workers’ Compensation law, it is also \nclear  that an employer takes  the employee as it finds  him or  her and  employment \ncircumstances that aggravate preexisting conditions are compensable. Heritage Baptist \nTemple v. Robinson, 82 Ark. App. 460, 120 S.W.3d 150 (2003). \nFurther, a claimant is not required in every case to establish the casual connection \nbetween a work-related incident and an injury with an expert medical opinion.  See Wal-\nmart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).  Arkansas courts \nhave  long  recognized  that  a  causal  relationship  may  be  established  between  an \nemployment-related  incident  and  a  subsequent  physical  injury  based  on  evidence  that \nthe injury manifested itself within a reasonable period of time following the incident so that \nthe  injury  is  logically  attributable  to  the  incident,  where  there  is  no  other  reasonable \nexplanation for the injury. Hail v. Pitman Construction Co. 235 Ark. 104, 357 A.W.2d 263 \n(1962).  \nHere, the  claimant suffered  with lumbar spine,  mid-spine,  and  neck  injuries, for \nyears prior to the claimed work-related injury. It is clear that the job of a CRNA is difficult \nbut  important  in  the  care  of  patients  and  residents.  With  that  said,  it  is  also  found  and \ndetermined that the Claimant’s testimony was at times an improvement on the facts. The \ntestimony in regard to the comments and actions by the Claimant that was provided by \nthe  four  witnesses who  worked  with  the  Claimant  is  clearly  entitled  to  more  weight. \nAdditionally,  no  medical  reports  of  record make  objective  findings  that connect  the \nclaimed injury on March 23, 2025, to the chronic back problems of the Claimant.  \n\nThealin Stiles – H501837 \n29 \n \nAs stated above, the workers’ compensation claimant bears the burden of proving \nthe compensable injury by a preponderance of the evidence. A.C.A. 11-9-102 (4) (E) (i).  \nA compensable injury is one that was the result of an accident that arose in the course of \nhis or employment and that it grew out of or resulted from the employment.  See Moore \nv. Darling Store Fixtures, 22 Ar. App 21, 732 S.W.2d 496 (1987) Preponderance of the \nevidence  means  the  evidence  having  greater  weight  or  convincing  force. Metropolitan \nNat’l Bank v. La Sher Oil Co., 81 Ark App. 263, 101 S.W.3d 252 (2003). Based upon the \navailable evidence in the case at bar, there is no alternative but to find that the Claimant \nhas failed to satisfy the required burden of proof to show that the claimed injury to her \nback on March 23, 2025, is  in  fact  work  related and compensable under  the Arkansas \nWorkers’ Compensation Act. \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, there is no alternative but to find that the Claimant has failed to prove by a \npreponderance of the credible evidence that her claim for an injury to her back, whether \nmiddle or lower, on March 23, 2025, is a compensable claim under the Arkansas Workers’ \nCompensation  Act. Consequently,  all  other  issues  are  moot. If  not  already  paid,  the \nrespondents are ordered to pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":54119,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H501837 THEALIN STILES, EMPLOYEE CLAIMANT HIRAM SHADDOX HEALTH AND REHAB, EMPLOYER RESPONDENT ARKANSAS SELF-INSURANCE TRUST/ CCMSI, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 3, 2026 Hearing before Administrative Law Judge, James D. Kennedy, on...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["back","lumbar","shoulder","knee","sprain","strain","neck","fracture"],"fetchedAt":"2026-05-19T22:31:41.579Z"},{"id":"alj-H407204-2026-02-02","awccNumber":"H407204","decisionDate":"2026-02-02","decisionYear":2026,"opinionType":"alj","claimantName":"Sally Brown","employerName":"Burger King Restaurants","title":"BROWN VS. BURGER KING RESTAURANTS AWCC# H407204 February 02, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Brown_Sally_H407204_20260202.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brown_Sally_H407204_20260202.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H407204 \n \nSALLY BROWN, \nEMPLOYEE                                                                                                              CLAIMANT \n \nBURGER KING RESTAURANTS, \nEMPLOYER                                                                                                         RESPONDENT  \n \nPROVISOR INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nMEM MUTUAL INS. CO., \nTPA                                                                                                                        RESPONDENT \n \n \n \nOPINION FILED FEBRUARY 2, 2026 \n \nHearing conducted on Friday, November 14, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant is Pro Se, of Jonesboro, Arkansas.  \n \nThe Respondents  were represented by Ms.  Karen  McKinney,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non September  5,  2025.    A  hearing  on  the  motion  was  conducted  on November 14,  2025,  in \nJonesboro,  Arkansas.    Claimant,  according  to  Commission  file  is Pro  Se, and appeared at  the \nhearing.  \nThe Claimant worked for the Respondent/Employer as an assistant manager. The date for \nClaimant’s  alleged  injury  was  on June   19,   2024. This   incident   was   reported   to   the \nRespondent/Employer on the  same  day. Admitted  into  evidence  was Respondents’ Exhibit 1, \n\nBROWN, AWCC No. H407204 \n \n2 \n \npleadings,  and  correspondence,  consisting  of 42 pages,  and Commission  Ex. 1, pleadings, \ncorrespondence, and U.S. Mail return receipts, consisting of 11 pages, as discussed infra. \nThe  record  reflects  on November 5,  2024,  a  Form  AR-C  was  filed  by  Claimants  then-\nattorney, Greg  Giles,  purporting  that  Claimant  sustained  injuries  to  her neck  and back. On \nNovember 7, 2024, a Form AR-1 purporting that Claimant’s injuries occurred when she turned a \ncorner  and  fell  while going to  a  back  register  to  help  with  customers. On November  8,  2024, a \nForm AR-2 was filed initially accepting the claim. The Claimant went to the St. Benard’s ER on \nthe same day as the incident and was released back to work. The Claimant returned to work on \nJune 20, 2024, and continued to work until August 19, 2024, when she stopped coming to work \nand did not request any additional medical care. The Respondents stated that they will be denying \nany  claims  at  the  time  of  the  filing  of  the  form  AR-2. On January 16,  2025, Claimant’s then-\nattorney filed a motion to withdraw as Claimant’s attorney. The Claimant objected to Greg Giles \nmotion to withdraw as counsel of record on January 24, 2025. The Full Commission granted Mr. \nGile’s motion on January 29, 2025. Due to Claimant’s objection, the Full Commission reversed \ntheir withdrawal order. I have taken up the review of the withdrawal order and granted the motion \non February 18, 2024.  \nOn March 6, 2025, Claimant’s new attorney, Scott Hunter, Jr., filed a request for a hearing. \nHowever, on July 14, 2025, Claimant’s new attorney filed a motion to withdraw as counsel due to \na difference of opinion on the future of the claim. On July 30, 2025, the Full Commission granted \nMr. Hunter’s withdrawal motion. Respondents filed a Motion to Dismiss due to Claimant’s failure \nto prosecute her claim on September 5, 2025. The Claimant was sent, on September 9, 2025, notice \nof  the  Motion  to  Dismiss, via certified  and  regular  U.S.  Mail,  to  his last  known  address.  The \ncertified motion notice was not claimed by Claimant as noted on the September 25, 2025, return \n\nBROWN, AWCC No. H407204 \n \n3 \n \nreceipt. This notice was also sent regular U.S. Mail and did not return to the Commission. Despite \nthis, the Claimant did not respond to the Motion, in writing, as required. Thus, in accordance with \napplicable Arkansas law, the Claimant was mailed due and proper legal notice of Respondents’ \nMotion to Dismiss hearing date at her current address of record via the United States Postal Service \n(USPS),  First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-Class  Mail,  on \nOctober 9, 2025. The certified notice was claimed as noted by the October 20, 2025, return receipt. \nLikewise,  the  hearing  notice  sent  regular  First-Class  was  not  returned  to  the  Commission. The \nhearing took place on November 14, 2025. And as mentioned before, the Claimant did show up to \nthe hearing. \nThe Claimant argued that she has never received her file from her previous attorney and \nwants to prosecute her. The Claimant stated that she did not live at the address in the Commission’s \nfile. She provided her updated address and was admonished that it is her responsibility to keep the \nCommission apprised of changes to her contact information. \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the November  14, \n2025, hearing. \n \n3. Respondents have not proven by the preponderance of the evidence that Claimant \nhas  failed  to  prosecute  her claim  under A.C.A.  §11-9-702 (Repl.  2012),  and 11 \nC.A.R. §25-110(d) (formerly AWCC Rule 099.13).  \n \n\nBROWN, AWCC No. H407204 \n \n4 \n \n4. The Respondents’ Motion to Dismiss should be denied. \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was claimed by Claimant, per the return postal notice bearing the October 20, 2025, date. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant alleged at the \nfull hearing that she did not receive a copy of her file from neither Scott Hunter nor Gregory Giles, \nher previous attorneys. If true, this would handicap the Claimant’s ability to prosecute her claim. \nDue to no evidence to the contrary, I find by the preponderance of the evidence that Respondents \nhave failed to prove that Claimant failed to prosecute her claim.  \nMoreover, dismissal under A.C.A. §11-9-702(a)(4) (Repl. 2012), and A.C.A. §11-9-702(d) \n(Repl.  2012) is not automatic, but discretionary. The statute uses the term “may” revealing its \ndiscretionary application. Based on the foregoing, I find the Respondents have failed to prove by \nthe preponderance of the evidence that Claimant’s claim should be dismissed pursuant to A.C.A. \n\nBROWN, AWCC No. H407204 \n \n5 \n \n§11-9-702(a)(4) (Repl. 2012), and A.C.A. §11-9-702(d) (Repl. 2012). Thus, Respondents’ Motion \nto Dismiss should be denied. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby denied, and prehearing questionnaires shall be sent to both parties. \n IT IS SO ORDERED. \n      _________________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":8100,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H407204 SALLY BROWN, EMPLOYEE CLAIMANT BURGER KING RESTAURANTS, EMPLOYER RESPONDENT PROVISOR INS. CO., CARRIER RESPONDENT MEM MUTUAL INS. CO., TPA RESPONDENT OPINION FILED FEBRUARY 2, 2026 Hearing conducted on Friday, November 14, 2025, before the Arkansas Wo...","outcome":"dismissed","outcomeKeywords":["dismissed:8","denied:5"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:31:31.073Z"},{"id":"alj-H407861-2026-02-02","awccNumber":"H407861","decisionDate":"2026-02-02","decisionYear":2026,"opinionType":"alj","claimantName":"Karen Talburt","employerName":"Black Sheep Egg Co. LLC","title":"TALBURT VS. BLACK SHEEP EGG CO. LLC. AWCC# H407861 February 02, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Talburt_Karen_H407861_20260202.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Talburt_Karen_H407861_20260202.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H407861 \n \nKAREN S. TALBURT, \nEMPLOYEE                                                                                                              CLAIMANT \n \nBLACK SHEEP EGG CO. LLC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nTRAVELERS PROP. CAS. OF AMERICA, \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED FEBRUARY 2, 2026 \n \nHearing conducted on Friday, November 14, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant is Pro Se, of Walnut Ridge, Arkansas.  \n \nThe Respondents  were represented by Mr. Guy  Alton  Wade,  Attorney  at Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non August 18, 2025.  A hearing on the motion was conducted on November 14, 2025, in Jonesboro, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a sanitation worker. The date for \nClaimant’s  alleged  injury  was  on November 20,  2024. This  incident  was  reported  to  the \nRespondent/Employer on the  same  day. Admitted  into  evidence  was Respondents’ Exhibit 1, \npleadings,  and  correspondence,  consisting  of 18 pages,  and Commission  Ex. 1, pleadings, \ncorrespondence, and U.S. Mail return receipts, consisting of 13 pages, as discussed infra. \n \n\nTALBURT, AWCC No. H407861 \n \n2 \n \n \nThe  record  reflects  on December 4,  2024,  a  Form  AR-1  purporting  that  Claimant  was \ncleaning when  her  hair  was  caught  in  rolling  brushes  and  eventually  ripped  out.  This  incident \nresulted in injuries to Claimant’s eye socket and nose. Also on December 4, 2024, a Form AR-2 \nwas filed noting the issuance of an indemnity payment. On December 6, 2024, an amended Form \nAR-2  was  filed  accepting  compensability.  On January 4,  2025,  a  Form  AR-C  was  filed  by \nClaimants then-attorney, Mark Peoples, purporting that Claimant sustained injuries to her head, \nneck, nose, and eyes. On July 14, 2025, Claimant’s then-attorney filed a motion to withdraw as \nClaimant’s attorney. The Full Commission granted Mr. People’s motion on July 30, 2025.  \nRespondents filed a Motion to Dismiss due to Claimant’s failure to prosecute his claim on \nAugust 18, 2025. The Claimant was sent, on August 20, 2025, notice of the Motion to Dismiss, \nvia certified  and  regular  U.S.  Mail,  to  his last  known  address.  The  certified motion notice  was \nclaimed by Claimant as  noted on the August 25,  2025, return receipt. This notice was  also sent \nregular U.S. Mail and did not return to the Commission. Despite this, the Claimant did not respond \nto  the  Motion,  in  writing,  as  required. Thus,  in  accordance  with  applicable  Arkansas  law,  the \nClaimant was mailed due and proper legal notice of Respondents’ Motion to Dismiss hearing date \nat her current address of record via the United States Postal Service (USPS), First Class Certified \nMail,  Return  Receipt  Requested,  and  regular  First-Class  Mail,  on September 18,  2025.  The \ncertified  notice  was not claimed as  noted  by  the October 3,  2025, return receipt. Likewise,  the \nhearing notice sent regular First-Class was not returned to the Commission. The hearing took place \non November 14, 2025. And as mentioned before, the Claimant did not show up to the hearing. \n \n \n\nTALBURT, AWCC No. H407861 \n \n3 \n \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the November  14, \n2025, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was not claimed by Claimant, per the return postal notice bearing the October 3, 2025, date. \nHowever,  the  notice  sent  First-Class  U.S.  Mail  to  the  last  known  address  did  not  return  to  the \n\nTALBURT, AWCC No. H407861 \n \n4 \n \nCommission. Thus, I find by the preponderance of the evidence that reasonable notice was given \nto the Claimant.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \nAR-C on January 4, 2025. Since then, she has failed to request a bona fide hearing. Therefore, I \ndo find by the preponderance of the evidence that Claimant has failed to prosecute her claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      __________________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6233,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H407861 KAREN S. TALBURT, EMPLOYEE CLAIMANT BLACK SHEEP EGG CO. LLC., EMPLOYER RESPONDENT TRAVELERS PROP. CAS. OF AMERICA, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 2, 2026 Hearing conducted on Friday, November 14, 2025, before the Arkansas Workers’ Compe...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T22:31:33.155Z"},{"id":"alj-H502993-2026-02-02","awccNumber":"H502993","decisionDate":"2026-02-02","decisionYear":2026,"opinionType":"alj","claimantName":"Charles Tristian","employerName":"Wingstop","title":"TRISTIAN VS. WINGSTOP AWCC# H502993 February 02, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TRISTIAN_CHARLES_H502993_20260202.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TRISTIAN_CHARLES_H502993_20260202.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H502993 \n \nCHARLES J. TRISTIAN, EMPLOYEE        CLAIMANT \n \nWINGSTOP, EMPLOYER                        RESPONDENT \n \nCHARTER OAK FIRE INS. CO., CARRIER                RESPONDENT \n \n \nOPINION FILED 2 FEBRUARY 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 14 January 2026 in Little Rock, Arkansas. \n \nThe pro se claimant failed to appear. \n \nFriday, Eldredge & Clark, LLP, Mr. Guy Alton Wade, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 14 January 2026. This case relates to an alleged workplace injury \noccurring on 7 May 2025. The record from the hearing consists of the transcript; \nRespondents’ Exhibit No 1, which consisted of nine pages of documents and pleadings in \nsupport of their motion; and Commission’s Exhibit No 1, three pages that included a Form \nAR-C filed by the claimant and two Postal Service delivery receipts from Commission \ncorrespondence with the claimant.  \nThe record showed that the claimant filed a Form AR-C on 13 May 2025 alleging an \ninjury on 7 May 2025. On 27 May 2025, the respondents filed a First Report of Injury \nindicating an alleged eye injury that had been reported to them on 7 May 2025. They \nsubsequently filed a Form AR-2 indicating that the claim was being denied.  \nThe respondents later requested that this claim be dismissed for the claimant’s \nfailure to prosecute his claim under the Commission Rule at 11 C.A.R. § 25-110(d). They \n\nC. TRISTIAN- H502993 \n2 \n \nstated that the claimant had failed to participate in their efforts to conduct discovery and \nnoted that he had not requested a hearing on any issue ripe for litigation.  \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of a hearing on the \nrespondents’ motion was sent in the same manner. Two Postal Service delivery receipts \nevidence that the claimant received those notice letters. The record does not reflect any \nresponsive filings from the claimant; and he did not attend the hearing to object to the \ndismissal of this claim. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim is dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 14 January 2026 and presented their motion. As \nargued by the respondents at the hearing, 11 C.A.R. § 25-110(d) provides for a dismissal for \nfailure to prosecute an action upon application by either party and reasonable notice. As \nnoted above, notice of the respondents’ motion and notice of the scheduling of the hearing \nwas provided to the claimant. \nThe respondents argue that the claimant has failed to cooperate in their attempts to \nconduct discovery that is relevant and necessary in the prosecution of this claim. \n\nC. TRISTIAN- H502993 \n3 \n \nAdditionally, the claimant has not requested a hearing on any issue in his claim. No \nobjection was filed to the respondents’ motion to dismiss this claim. Further, the claimant \ndid not appear at the hearing to resist the dismissal of his claim. Based on the evidence \npresented, a dismissal without prejudice is appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4031,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H502993 CHARLES J. TRISTIAN, EMPLOYEE CLAIMANT WINGSTOP, EMPLOYER RESPONDENT CHARTER OAK FIRE INS. CO., CARRIER RESPONDENT OPINION FILED 2 FEBRUARY 2026 Heard before Arkansas Workers’ Compensation Commission (“the Commission”) Administrative Law Judge Ja...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:31:35.227Z"},{"id":"alj-H400841-2026-01-22","awccNumber":"H400841","decisionDate":"2026-01-22","decisionYear":2026,"opinionType":"alj","claimantName":"Sherri Bass","employerName":"National Opinion Research Ctr","title":"BASS VS. NATIONAL OPINION RESEARCH CTR. AWCC# H400841 January 22, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BASS_SHERRI_H400841_20260122.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BASS_SHERRI_H400841_20260122.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H400841 \n \nSHERRI BASS, Employee CLAIMANT \n \nNATIONAL OPINION RESEARCH CTR., Employer RESPONDENT \n \nTHE HARTFORD, Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 22, 2026 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant unrepresented and appearing pro se. \n \nRespondents represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On October  28,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on March  31,  2025,  and  a  Pre-hearing \nOrder  was  filed  on March  31,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The   relationship   of   employee-employer-carrier   existed   between   the   parties on \nSeptember 16, 2023. \n 3. The respondents have controverted the claim in its entirety. \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates of $356.00 for temporary total disability benefits. \n\nBass – H400841 \n \n-2- \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  compensable  injuries  to  her  bilateral  shoulders,  bilateral \nelbows, bilateral hands, and cervical spine on or about September 16, 2023. \n 2. Whether Claimant is entitled to medical treatment for her bilateral shoulders, bilateral \nelbows, bilateral hands, and cervical spine injuries. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  January  29, \n2024, to a date yet to be determined. \n The claimant's contentions are as follows: \n“The   treatment   orders   were   never   full-filled.   Denied   claims. \nClaims they didn’t notify me were denied. They just told me ‘they \nwere working on it.’ Verbally abused by the treating physicians \nwith   false   diagnosis   and   accusations,   unlawfully.   Physically \nabused   by   the   treating   doctors,   for   not   giving   me   proper \nrestrictions  and  re-injuring  and  increasing  the  pain.  I  never  had  a \ncase manager. I had to contact The Hartford through Insta-Gram. I \nhave  real  injuries  that  have  yet  to  receive  any  treatment  at  all. \nVerbal  abuse  tactics  by  Randy  Murphy,  AAL  during  a  3  way  call \nwith the State Attorney. I’ve been begging for treatment for over a \nyear, for a 24 year physical career, that was ruined because of these \ninjuries.  Continued  injuries  for  being  returned  to  work  without \nrestrictions, over and over. There is a third claim for Cervical with \nan ER visit from 2022, that was denied after it was reported within \nthe  time  limits.  I  am  in  severe  pain  and  need  treatment.  I  can  no \nlonger afford to pay out of pocket. \n \nI  would  like  appreciate  restrictions  for  my  dx.  I  would  especially \nlike treatment. I would also prefer the Work Comp Commission to \nchoose where I receive my IME. I have requested IME’s, last year, \nso I could get treatment on my own, and be MMI’d. They refused \nto  do  this,  like  everything  else.  Mr.  Murphy  and  his  team  are \nbadgering  me  to  see  THEIR  out  of  town  doctor,  for  an  IME,  and \nwon’t agree to mediation or a Department Committee approved \nphysician. These records will also show discrimination. Also at the \nadvise of the State Work Comp Legal Department.” \n \n The respondents’ contentions are as follows: \n\nBass – H400841 \n \n-3- \n“Claimant has received all benefits to which she is entitled for her \ncompensable   work-related   injury.   Claimant   medical   records \nestablish  that  she  has  numerous  physical  and  emotional  problems \nwhich are unrelated to the compensable injury. The medical reports \nof  Dr.  Diemer,  Dr.  Benafield,  and  Dr.  Kelly  establish  that  her \npsychiatric    condition    is    a    non-work    related    independent, \nintervening cause which has caused and prolongs disability and her \nneeds for treatment. See Ark. Code Ann § 11-9-102(F)(b)(III).” \n \n The  claimant  in  this  matter  is  a 60-year-old  female who  alleges  to  have  sustained \ncompensable  injuries  to  her  bilateral  shoulders,  bilateral  elbows,  bilateral  hands,  and  cervical \nspine on or about September 16, 2023. The claimant appeared pro se before the Commission and \ngave testimony in a narrative form. Following is an effort to highlight portions of the claimant’s \nnarrative testimony regarding the incident or incidents on or about September 16, 2023, in which \nshe  alleges  she  sustained  compensable  injuries  to  her  bilateral  shoulders,  bilateral  elbows, \nbilateral hands, and cervical spine: \nTHE CLAIMANT: So, Your Honor, on September 16\nth\n and \n17\nth\n, I didn’t have any work restrictions and I was released to work \nprior to that to do my regular job, which you have pictures and also \nlinked to the video to show what my job entails: Balancing laptops \non  my  hands,  lifting  a  20-pound  bag  out  of  my  car  in  and  out \nmultiple times a day, carrying it into people’s homes, sitting in \nunergonomical places to do my job for up to 90 minutes, two hours \nor more at a time. \n \n I  have  to  hold  out  my  arms  stretched  out  with  a  3-pound \ntable,  pinch  grip,  that  the  doctors  state  that  I  can  pinch  that  and \nhold that all I want to and it won’t cause any damage. \n \n We  have  to  hold  it  out  with  our  arms  straight  in  order  for \nthe Respondent to take it from us. The Respondents are all elderly \nor disabled and a lot of times they don’t know how to work that \ntable, so we have to work it for them and hold it out for them and \nmove our arms in awkward positions. \n \n And  my  job  there  is – we  follow  my  respondents  for  four \nyears.  There  is  three  different  times  that  we  visit  them  per  year. \n\nBass – H400841 \n \n-4- \nEvery four months we go to these people’s houses and reinterview \nthem once they have been put into the study. \n \n Every  June  a  whole  new  caseload  comes  out.  People  that \nhave  never  been  contacted.  That  lasts  from  June  until  December \n27\nth\n or December 31\nst\n, I’m sorry, or whatever year it may be. \n \n At  that  time  we  have  new  cases  of  people  that  are  being \nbrought into the study, so we have to – and I am the only employee \nin  the  whole  state  and  I  have  one  of  the  largest  caseloads  as  my \ndocuments mention that you already have a copy of. \n \n And  so  my  work  equipment  is  in  my  passenger’s  seat, \nalong  with  the  table  that  I  have  to  grab,  and  I  have  to – before  I \nleave,  I  have  to  fill  up  a  notebook  with  all  of  the  cases  I  have.  I \nhave to write down the person’s name, their address – we don’t get \na  phone  number – their  date  of  birth  and  so  forth  in  a  notebook. \nAnd we have to make folders. We have to put labels on them with \nliterature in them to bring to the door. We knock on doors. \n \n So  that  takes  place  for  half  of  the  year.  We  are  bringing \nnew  people  into  the  study.  Those  new  people  will  be  my  future \nwork because every year there is respondents leaving the study. So \nthat is my future work. And that is what I am working on when Dr. \nDeimel and Dr. Benafield said that I could do all of that. \n \n So  that  particular  day  I  had  to  knock  on  doors.  I  held  my \narm  like  a  clipboard,  my  left  arm  like  a  clipboard  for  four  hours, \nYour Honor, while I was knocking on doors. \n \n*** \n The day of the injury, that Saturday I had worked, knocked \non doors. I had pain while I was doing that. I had a lady who didn’t \nwant  to  participate,  but  she  wanted  to  talk,  so  I  stood  there  for  an \nhour  in  her  door  with  my  arm  held  like  a  clipboard,  in  and  out  of \nmy  car,  in  and  out  of  my  car,  reaching  over  the  passenger  seat \npinching-gripping that tablet. \n \n So   I   made   two   new   appointments,   so   I   had   those \nappointments  on  Sunday.  So  the  first  appointment  I  made  was  a \nproxy, which I discovered he was a proxy for many women and he \nwas a con artis on old women. \n \n We  went  to  his  house,  not  the  respondent’s  house.  His \nhouse was  a hoarder house There was nowhere to sit down.  I was \n\nBass – H400841 \n \n-5- \nsitting  in  a  chair  just  like  I  am  now,  pushed  up  against  something \njust like it is now. I had this much space (indicating). I would say \nmaybe two feet of space to work. He was sitting facing me leaning \nagainst  the  side  of  the  table.  I  had  my  laptop  in  my  lap.  I  had  the \npen top on the right.  I had to bring my right arm up and over like \nthis (indicating) so I could move better, but I had to hold it up and \nover to try to work the tablet from this way so he could see it. \n \n*** \n So  not  only  was  I  doing  that  with  my  shoulder,  that  took \nalmost  two  hours  to  do  that  interview.  I  was  also  leaning  on  this \nside  to  pick  up  all  my  other  stuff  off  the  floor,  Your  Honor, \nbecause I didn’t have enough space to do my job, which is 80 \npercent typical for my job. \n \n So  I  had  a  severe  pain,  once  again  in  my  right  occipital  of \nmy neck, just like I complained about on October 22 when I went \nto  the  emergency  room  after  working  and  after  climbing  stairs  to \ninterview  someone  carrying  my  laptop  case,  so  I  went  to  the \nemergency room. \n  \n And they might like to claim that I had a preexisting injury \nto my neck and my shoulder. I did have a fall. I didn’t get any – I \ngot very little treatment. I didn’t get a diagnosis. I didn’t get any \nrestrictions.  Because  of  my  job,  I  was  able  to  take  myself  off  of \nwork.  I  had  some  pain  in  my  shoulder,  in  my  hand,  and  in  my \nneck. \n \n*** \n So  back  on  September  16\nth\n and  17\nth\n,  on  the  17\nth\n was  a \nSunday, I made two appointments from that work on the 16\nth\n. \n \n THE  COURT:  Just  for  a  point  of  clarification,  this  is \nSeptember 16\nth\n and 17\nth\n of 2023? \n \n THE CLAIMANT: Yes, sir. \n \n THE COURT: Thank you. \n \n THE  CLAIMANT:  I  had  an  original  neck  injury  from \n10/21 and 22, but they quickly denied that. \n \n THE COURT: Got you. \n \n\nBass – H400841 \n \n-6- \n THE  CLAIMANT:  So  I  had  two  interviews,  so  I  already \nexplained how I had administered that first interview. \n \n I was running late to the second interview, so I grabbed all \nmy stuff, packed it up, loaded it in my car. Went down the street to \nthe second interview. It was a woman who is younger than me. She \nwas maybe in her 30s or 40s on Medicaid, low income. It was a – \nshe had Halloween stuff sitting on her front porch and a nice chair, \nbut she wouldn’t let me sit there. She didn’t want me in her house, \nso she brought out a child’s chair that was homemade for me to sit \nin. It had one-inch handles that were just wood and it was a child’s \nchair. \n \n She  was  smoking  a  joint  while  I  was  there.  She  refused  to \ntake  the  pen  to  the  laptop  or  the  tablet  from  me,  so  I  had  to  just \nkeep my arm held out, my right arm held out for her to take it. \n \n I kept asking her to take it, but she wouldn’t take it, so that \ncaused even more pain in my shoulders, my elbows, my hands, and \nmy  neck.  That  is  the  date,  September  16\nth\n and  17\nth\n,  I  had  those \ninjuries. I was still released to work with no restrictions. \n \n In  October,  I  have  proof  here,  and  you  will  see  the  emails \nas  well,  because  I  am  the  only  employee  here,  they  had  to  bring \nsomeone in. That’s what they do. They are called travelers. They \nbring someone in to do the other person’s work. \n \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n Within  the  medical  records introduced  into  evidence  there  exists  evidence  of  objective \nmedical  findings  of  derangement  to  some,  but  not  all,  of  the  body  parts  the  claimant  alleges  to \n\nBass – H400841 \n \n-7- \nhave  sustained  compensable  injuries  to  on  or  about  September  16,  2023.  However,  even  if  the \nclaimant could show objective medical findings regarding all the body parts she alleges to have \nsustained  injuries  to  on or  about September  16,  2023,  she  cannot  prove  a  causal  connection \nbetween those body parts and the incident or, more appropriately, the incidents she alleges. \n The claimant’s description of how she was injured is a wide array of tasks and events that \nappear  to  happen  over  a  day  if  not  a  two-day  period.  Examples  include,  but  are  not  limited  to, \nsitting in a bad chair, holding a laptop in her hand, getting a bag from her car, and having to be \nseated while watching someone walk around in a room. \n I note at this time that the claimant has a separate Arkansas Workers’ Compensation \nclaim that has an injury date in February of 2023. I note this due to the reference of this date in \nmany of the medical records submitted into evidence.  \n The claimant’s lack of a causal connection between her alleged compensable injuries and \nher objective medical findings is weakened by the lack of medical evidence to support any injury \nor  injuries  on  that  date  or  in  that  time  frame.  Claimant’s  Exhibit  1,  pages  98-100,  is  an \nemergency department physician’s note from Washington Regional Medical Center authored by \nDr. Davis Duong dated November 5, 2023, which, in part, states: \nChief Complaint \nPt arrives to er with c/o bilat shoulder pain, pt was lifting a laptop \nand tablet \n \nHistory of Present Illness \n58-year-old  female  here  for  evaluation.  History  obtained  from \npatient.  Chief  complaint  of  shoulder  pain.  Localized  bilaterally, \nright  greater  than  left.  Reports  chronic  history  of  shoulder  pain. \nStates  symptoms  have  been  exacerbated  since  February  2023. \nSymptoms worsened with movement and palpation. Denies fall or \ntrauma.  Reports  pain  exacerbated  over  past  several  days  after  she \nobtained   an   outpatient   MRI   of   RUE.   States   has   follow-up \n\nBass – H400841 \n \n-8- \nappointment pending with orthopedic surgery Clinic this upcoming \nweek in Fort Smith. \n \n Claimant’s Exhibit 1, pages 129-130,  is  a  medical  record  dated  November  16,  2023, \nauthored by Dr. Miles Johnson and, in part, states: \nCHIEF  COMPLAINT:  Pain,  numbness  and  tingling  in  the  upper \nextremities. \n \nHISTORY  OF  PRESENT  ILLNESS:  Patient  is  a  58-year-old \nambidextrous diabetic female who has a history of bilateral elbow \npain  and  intermittent  numbness  and  tingling  in  the  hands  which \nbegan  on  February  21\nst\n.  Symptoms  can  involve  all  the  digits  but \nusually  just  the  fourth  and  fifth  digits.  Symptoms  are  worse  at \nnight, typing, lifting, or gripping. There is some improvement with \nheat  and  massage.  She  denies  any  significant  weakness.  There  is \nsome  nonradiating  neck  pain.  Patient  has  been  seen  by  Dr.  Kelly \nand  is  referred  for  electrodiagnostic  testing  of  the  bilateral  upper \nextremities. \n \n Neither of these medical records makes any mention of the claimant’s suffering an injury \non or about September 16, 2023. Instead, both reference the claimant’s February 2023 incident.  \n The closest by date medical record in evidence after the claimant’s alleged on or about \nSeptember 16, 2023, incident is a medical record found at Respondents’ Exhibit 1, pages 92-96, \nauthored  by  Dr.  George  Diemel  and  dated  September  26,  2023.  Following  are  portions  of  that \nmedical record: \nFollow Up Questionnaire \n \nAre you better, worse, or the same since your last appointment: \nWorse \n \nWhere is your primary complaint? \nLUE, elbow, medial/lateral/axillary, scapula, right elbow and wrist, \nfingers \n \nApproximately how long have you had this symptom now? \n02/21/2023 \n \n\nBass – H400841 \n \n-9- \nRate your pain \n9 \n \nWhich best describes your current complaints? \nAching \nBurning \nNumb \nSharp \nShooting \nStabbing \nThrobbing \n \nMs.  Bass  returns  to  the  clinic  today  for  follow  up.  She  was  last \nevaluated  on  8/03/2023.  At  that  time,  I  was  seeing  her  for  upper \nextremity   pain   complaints.   She   was   also   being   seen   by   Dr. \nBenafield  and  had  been  going  to  occupational  therapy.  They  have \nboth  discharged  her  from  care.  During  our  last  visit,  there  were \nsome  emotional  exchanges  during  the  course  of  the  discussion. \nAfter  that  visit,  her  work-comp  case  manager  reached  out  and \nasked  whether  or  not  we  would  continue  to  evaluate  her.  She  is \nhere today to discuss further evaluation and treatment options. \n \n*** \nAssessment/Plan \nImaging and record review: \nAn MRI of the thoracic spine from Washington Regional Medical \nCenter  dated  2/7/2023  was  reviewed.  There  is  a  vertebral  body \nhemangioma. There is some mild degenerative disc disease at T5-6 \nwith anterior osteophytosis. \nOtherwise unremarkable \nCervical   spine   radiographs   from   Ozark   Orthopaedics   dated \n4/4/2023  were  reviewed.  There  is  well  preserved  disc  space  and \nvertebral  body  height  throughout.  No  abnormal  alignment.  No \nfracture. \nAn  MRI  of  the  cervical  spine  from  Ozark  Orthopaedics  dated \n4/10/2023  was  reviewed.  There  is  mild  disc  bulging  and  facet \narthropathy at the C4-5 level. This results in mild central canal and \nmild  right  neural  foraminal  narrowing.  There  is  moderate  left \nneural foraminal stenosis. The remaining levels are unremarkable. \nReport  from  EMC/NCS  of  the  bilateral  upper  extremities  dated \n4/13/2023 was reviewed and is normal. \nX-ray  of  the  right  elbow  was  taken  in  clinic  6/26/2023.  3  views \nshowing good alignment. No osteolytic lesion. \n\nBass – H400841 \n \n-10- \nClinical    documentation    from    Dr.    Bryan    Benafield,    dated \n07/19/2023,  was  obtained  and  reviewed.  He  gave  her  an  injection \nand has done night time splinting. \nClinical documentation from D. Bryan Benafield, dated 8/23/2023, \nwas reviewed. In this note, he indicated that he believed that there \nwas  some  secondary  gain  behavior/malingering  and  would  no \nlonger see the patient. \nMultiple   clinic   notes   from   occupational   therapy   were   also \nreviewed. A discharge summary, dated 9/21/2023, was reviewed. \n \nInterventions: \nA  report  from  ultrasound-guided  right  ulnar  nerve  corticosteroid \ninjection dated 6/21/2023 was reviewed. \n \nDiagnoses: \n1.  Bilateral  elbow  pain  and  hand  parasthesias,  suspected  ulnar \nneuropathy at the elbow vs referred cervical radicular pain. \n2.  Neck  and  right  shoulder  pain  with  bilateral  arm  pain  and \nparasthesias, possible superimposed cervical radiculopathy. \n3. Work-related injury. 2/21/2023 with injury while lifting. \n4. Pre-existing neck and shoulder pain secondary to fall. \n5. Filed conservative care including activity modification, over the \ncounter medications, and physical therapy. \n6. Prior concern for autoimmune disorder, rheumatoid arthritis. \n7. S/p EMG/NCS, normal. \n8. Cervical spondylosis. \n9. Cervical spine MRI evidence of C4-5 facet arthropathy, mild to \nmoderate NF stenosis. \n10. S/p right ulnar nerve corticosteroid injection with improvement \nin  symptoms,  patient  experienced  injection  site  dermatological \nreaction. \n11. Status-post occupational therapy, night time splinting under the \ncare of Dr. Bryan Benafield. \n12.  Recent  discharge  from  care  with  Dr.  Bryan  Benafield  due  to \ncontentious patient/physician interaction. \n13.  Status-post  occupational  therapy  with  discharge  of  care  with \nclinical documentation of patient being resistant to \nsuggestions/recommendations  for  joint  protection  techniques  and \nworkstation ergonomics. \n \nAssessment: \nMs. Bass returns to clinic today for a follow up. We discussed her \nclinical  course.  She  spent  the  first  20  minutes  of  the  visit  going \nthrough  a  list  of  grievances  against  Ozark   Orthopaedics,  Dr. \nBenafield, our therapy team and her WC carrier  as far as how she \n\nBass – H400841 \n \n-11- \nhas  been  treated.  She  states  she  is  frustrated  by  her  care  and  also \nnoted  that  she  has  attempted  to  get  in  touch  with  us  on  multiple \noccasions in attempts to  try to pursue different treatments. During \nthe  course  of  the  discussion,  she  outlined  different  dates  in  which \nshe had tried to reach out in hopes that she could get a “Toradol \nshot”.  She  did  state  that  somewhere  in  the  course  of  this  she \nultimately went to urgent care although it was unclear whether she \ndid in fact the get treatment she was looking for. She continued to \nreference  her  left  shoulder  and  arm  as  the  reason  for  the  need  to \ntreatment. Previous complaints had focused on the bilateral elbows \nwhich  is  what  initial  WC  injury  location  was  indicated  as  per  my \nunderstanding. Our previous workup had included cervical spine x-\nrays,  MRI  of  cervical  spine,  EMG/NCS  of  the  bilateral  upper \nextremities,   an   injection   for   the   right   elbow   to   assess   the \ncontribution of the ulnar nerve at the elbow, referral for orthopedic \nhand consultation and a considerable amount of therapy to address \nher bilateral upper extremity concerns. \n \nClinical  correspondence  from  8/18/2023  indicates  a  one  time, \napproval   from   her   WC   CM   regarding   evaluation   of   her   left \nshoulder and wrists which prompted today’s appointment. In the \ncorrespondence,  it  was  noted  that  approval  had  not  been  given \npreviously to evaluate these injuries. She states she was not aware \nof when this appointment was going to be made and had to look at \nthe  portal.  I  told  her  that  the  appointment  was  requested  by  her \nwork-comp  case  manager  which  she  states  she  has  not  spoken  to. \nShe   states   that   she   only   knew   about   this   appointment   after \nreferencing the portal. She stated that she didn’t know what she \nwas here but wanted to be sure to show up so “we couldn’t mark \nher  down  as  non-compliant.” I told her that I did not have any \nintention of making such a claim nor what “out to get her”. \n \nSo  summary  of  initial  discussion  regarding  this  appointment  from \nher  perspective  was  questioning  why  she  was  here  stating  she  did \nnot  request  this  appointment  be  made.  This  was  subsequently \nfollowed  by  the  aforementioned  outlining  of  grievances  she  had \nwith how her care had bene administered. She then went on to say \nthat  she  had  hired  an  attorney.  She  also  reached  out  to  the  Work-\nComp   State   Commission.   They   have   since   sent   her   up   an \nappointment  with  Dr.  Kelley,  and  she  has  an  appointment  on \nMonday, in Fort Smith to see him and establish care. \n \nNear the conclusion of the visit, she asked whether or not I would \nevaluate her left shoulder/arm. This was approximately 40 minutes \ninto her visit. Prior to the visit, I did review records indicating we \n\nBass – H400841 \n \n-12- \nhave done EMG/NCS of the upper extremities, cervical spine xrays \nand  cervical  spine  MRI.  We  have  also  sent  therapy  in  to  address \nher upper extremities complaints. Per her recollection, therapy did \nnot  do  anything  to  address  her  concerns.  Review  of  discharge \ntherapy records from 9/20/2023 indicated that she was “resistant” \nto  recommendations,  “argumentative”  and  requested  therapy \nelsewhere. \n \nAt this point given the history of prior interactions, the fact that she \nhas  on  her  own  accord  attempted  to  establish  care  and  has  a \npending  appointment  with  another  provider  through  the  work-\ncomp  system  which  has  apparently  been  orchestrated  with  her \nnewly acquired legal representation, and made references to taking \nlegal  action  against  my  orthopedic  hand  partner,  Dr.  Benafield,  I \ntold  her  that  I  would  hold  on  any  further  evaluation  of  her  new \npain complaints. Despite my explaining this to her, she also asked \nwither  or  not  she  could  receive  a  Toradol  shot,  which  I  politely \ndeclined.  I  did  not  take  a  detailed  history  of  injury  to  the  left \nshoulder.  I  did  not  inquire  about  prior  injuries  not  did  I  address \nwork   status   related   to   her   shoulder   injury.   From   my   prior \nevaluation, there are no functional limitations related to her elbows \n(initial  work  injury)  that  would  limit  her  ability  to  return  to  her \nprior work tasks which have been outlined previously as computer \nwork, administrative tasks and light duty activities. \n \nAgain, this visit was contentious and centered accusations that she \nhas not been provide the level of care that she expected. From prior \ninteractions, this stems from a differing opinion on whether she is \nable to continue her work activities as outlined. I truly believe she \nbelieves  that  she  cannot  perform  these  tasks.  Unfortunately,  all \nobjective data that  we have to make decisions from in the context \nof her initial WC injury does not support her belief that continuing \nthese  work  activities  will  result  in  irreversible  and  irreparable \nharm.  Any  attempts  at  discussing  a  return  to  work  plan  were  met \nwith   resistance.   My   interactions   seem   to   be   consistent   with \ndocumentation  from  Dr.  Benafield  and  our  occupational  therapy \nteam  about  interactions  they  have  also  had  with  Ms.  Bass.  At  this \npoint, I am not sure I have anything else further to add to her care. \n \nIn the end, I did apologize that she did not receive the level of care \nhere  at  Ozark  Orthopaedics  that  she  was  expecting.  I  wished  her \nthe  best  and  told  her  I  hoped  she  finds  a  suitable  solution  for  her \npain complaints. \n \nSummary \n\nBass – H400841 \n \n-13- \nWill hold on any further evaluation or treatment recommendations \ngiven  that  the  patient  has  established  care  with  another  provider \nthrough work-comp. \nNo   further   work   restrictions   per   my   recommendation   given \npending care through other provider. \n \nFollow up as needed. \n \n1. Ulnar neuropathy of right arm \nG56.21: Lesion of ulnar nerve, right upper limb \n \n This administrative law judge has been unable to find any medical record that reports an \ninjury,  or  injuries to have  beset  the  claimant  on  or  about  September  16,  2023,  until  a  February \n27,  2024,  medical  record  from  the  Center  for  Psychology,  PA,  authored  by  Virginia  Krauft,  a \nlicensed  psychologist  and  Carly  Solome,  a  clinical  psychologist.  Following  is  a  portion  of  that \nmedical record found at Respondents’ Exhibit 1, pages 172-179: \nREASON FOR REFERRAL: \nPsychological  evaluation  was  requested  by  Ms.  Bass  due  to  her \nphysician’s concern about a possible overlap between physical and \npsychological  symptoms.  She  reported  difficulties  communicating \nwith medical providers, managing stress, coping with chronic pain \nand emotional distress, deficits in attention and focus that interfere \nwith functioning t home and work. Her overall goal was to receive \ndiagnostic clarity. \n \nMs.  Bass  reported  difficulties  organizing  and  completing  tasks, \nbecoming  easily  exhausted  and  overwhelmed,  and  experiencing \nstress  and  anxiety  related  to  worker’s  compensation  claim  and \nchronic  illness.  She  said  symptoms  become  unmanageable  after \nlosing  her  job  in  November  2023.  This  followed  incidents  that \nhappened at work in October 2022, February 2023 and September \n2023 (See Appendix V). \n \nI note that Appendix V is not found in the medical evidence in this matter. \n The claimant filed an AR-C on January 31, 2024, alleging to have sustained compensable \ninjuries  to  her  bilateral  shoulders,  bilateral  wrists,  bilateral  elbows,  neck  and  numbness  to \n\nBass – H400841 \n \n-14- \nfingers, alleging those injuries to have occurred on September 16, 2023. That AR-C was signed \nby the claimant on January 22, 2024, and is found at Respondents’ Exhibit 2, page 3.  \n Here, the claimant is unable to prove a causal connection between any objective medical \nfindings she does possess and the incident or incidents she alleges to have occurred on or about \nSeptember 16, 2023. The claimant has failed to prove her alleged injuries on or about September \n16, 2023, compensable. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nMarch 31, 2025, and contained in a Pre-hearing Order filed March 31, 2025, are hereby accepted \nas fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \ncompensable  injuries  to  her  bilateral  shoulders,  bilateral  elbows,  bilateral  hands,  and  cervical \nspine on or about September 16, 2023. \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment for her alleged compensable injuries. \n 4. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits from January 29, 2024, to a date yet to be determined.  \n \n \n\nBass – H400841 \n \n-15- \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":31145,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H400841 SHERRI BASS, Employee CLAIMANT NATIONAL OPINION RESEARCH CTR., Employer RESPONDENT THE HARTFORD, Carrier RESPONDENT OPINION FILED JANUARY 22, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Clai...","outcome":"denied","outcomeKeywords":["denied:4"],"injuryKeywords":["cervical","shoulder","neck","back","wrist","thoracic","fracture"],"fetchedAt":"2026-05-19T22:33:03.634Z"},{"id":"alj-H404546-2026-01-22","awccNumber":"H404546","decisionDate":"2026-01-22","decisionYear":2026,"opinionType":"alj","claimantName":"Jacob Burns","employerName":"United Parcel Service","title":"BURNS VS. UNITED PARCEL SERVICE AWCC# H404546 January 22, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BURNS_JACOB_H404546_20260122.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BURNS_JACOB_H404546_20260122.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H404546 \n \nJACOB BURNS, Employee CLAIMANT \n \nUNITED PARCEL SERVICE, Employer RESPONDENT \n  \nLM INS. CORP., Carrier RESPONDENT \n \n OPINION FILED JANUARY 22, 2026  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas; although not \npresent at hearing. \n \nRespondent represented by DAVID C. JONES, Attorney, Little Rock, Arkansas. \n \n OPINION \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn August 19, 2024, Evelyn Brooks, claimant’s attorney, filed a Form AR-C requesting \nvarious compensation benefits in which the claimant alleged an injury to his left shoulder on or \nabout July  10,  2024;  however,  no  hearing  was  requested. No  further  action  was  taken  in  this \nclaim. \nOn October 17, 2025, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. A hearing was scheduled for December 9, 2025. Notice of \nthat hearing was sent to the claimant by certified mail, return receipt requested on November 4, \n2025. United States Postal Department records indicate that claimant received and signed for the \nnotice on November 10, 2025. \n\nBurns – H404546 \n2 \n \nMs.  Brooks indicated by  email dated October  30,  2025, that she would  waive his \nappearance  at  the  hearing  and  further  indicated  that she had  no  objection  to  the  Motion  to \nDismiss “without prejudice.”    \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution.  After my review of \nthe respondent’s Motion to Dismiss, Ms. Brooks’ response  thereto she had  no  objection  to  the \nMotion  to  Dismiss  without  prejudice,  and  the  claimant’s  failure  to  appear  at  the  scheduled \nhearing,  as  well  as  all  other  matters  properly  before  the  Commission,  I  find  that  claimant  has \nfailed to prosecute this claim. Therefore, this claim is dismissed without prejudice.   \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2315,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404546 JACOB BURNS, Employee CLAIMANT UNITED PARCEL SERVICE, Employer RESPONDENT LM INS. CORP., Carrier RESPONDENT OPINION FILED JANUARY 22, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Springdale, Washington County, Arkansas. Claimant re...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:33:05.694Z"},{"id":"alj-H407474-2026-01-22","awccNumber":"H407474","decisionDate":"2026-01-22","decisionYear":2026,"opinionType":"alj","claimantName":"Charles Updegraff","employerName":"Trane Commercial","title":"UPDEGRAFF VS. TRANE COMMERCIAL AWCC# H407474 January 22, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/UPDEGRAFF_CHARLES_H407474_20260122.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"UPDEGRAFF_CHARLES_H407474_20260122.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H407474 \n \nCHARLES UPDEGRAFF, Employee CLAIMANT \n \nTRANE COMMERCIAL, Employer RESPONDENT \n \nFARMINGTON CASUALTY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 22, 2026 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by AMY C. MARKHAM, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On October  27,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on August  21,  2025,  and  a  Pre-hearing \nOrder  was  filed  on August  22,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The employee/employer/carrier relationship existed on October 25, 2024. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether claimant sustained a compensable injury on October 25, 2024, specifically to \nthe lumbar spine. \n\nUpdegraff – H407474 \n \n-2- \n 2.  If  compensable,  whether  claimant  is  entitled  to  temporary  total  disability  benefits, \nmedical benefits, and mileage. \n 3. Attorney’s fees. \n All other issues are reserved by the parties. \n The claimant contends that “The claimant was injured on October 25, 2024, when he \nattempted to pick up a section of an air conditioning unit and felt an immediate pain in his low \nback which continued down his right leg into his ankle. The claimant was seen at Baptist Health \nMedical  Center  Van  Buren  on  October  26,  2024,  for  continued  low  back  pain.  On  October  28, \n2024,  the  claimant  was  seen  at  Conservative  Care  Occupational  Health  for  continued  low  back \npain.  He  was  referred  for  a  lumbar  MRI.  On  November  6,  2024,  the  claimant  was  seen  at  Fort \nSmith  ER  &  Hospital  for  his  lumbar  MRI  and  had  a  follow-up  with  Conservative  Care \nOccupational  Health  on  November  8,  2024,  where  he  was  released  to  regular  duty.  Due  to  the \nclaimant’s continued low back pain, the claimant was seen at Baptist Health Medical Center Fort \nSmith  where  he  was  treated  and  referred  to  a  neurosurgeon  for  additional  treatment.  The \nclaimant  was  seen  by  Billie  Jo  Nelson,  APRN  at  Baptist  Health  Neuroscience  Center  where  he \nwas referred for physical therapy. After the completion of physical therapy and no improvement \nat to the pain or mobility, Dr. Arthur Johnson scheduled the  claimant for surgery. On March 6, \n2025,  the  claimant  underwent  a  microdiscectomy  at  L5-S1  performed  by  Dr.  Johnson.  The \nclaimant  reserves  the  right  to  amend  and  supplement  his  contentions  after  additional  discovery \nhas been completed.” \n The respondents contend that “Claimant was not injured in the course and scope of his \nemployment. If the claim is found to be compensable, respondents are entitled to a setoff for any \ndisability payments received by claimant.” \n\nUpdegraff – H407474 \n \n-3- \n \nThe  claimant  in  this  matter  is  a 63-year-old  male who  alleges  to  have  sustained  a \ncompensable  lumbar  spine  injury  on  October  25,  2024.  The  claimant’s  job  duties  for  the \nrespondent/employer   included   constructing   the   outside casing of   large   commercial   air \nconditioning  units.  The  largest  pieces were set  in  place  by  an  overhead  crane.  The  smaller \nsections of wall were lifted and moved by hand. The claimant described the smaller sections as \n12  to  14  feet  in  length  and  about  two  feet  in  width,  weighing  roughly  70  to  80  pounds.  The \nclaimant was moving a smaller wall section when he alleges he sustained a compensable lumbar \nspine  injury.  Following  is  a  portion  of  his  direct  examination  testimony  about  the  incident  in \nwhich he alleges to have sustained a compensable lumbar spine injury. \nQ Okay.  What  happened?  You  had  picked  up  one  of  those \npieces and then what happened? \n \nA The  second  I  picked  it  up  off  the  cart,  I  went  to  stand  up \nand  I  don’t  know  if  I  turned  wrong,  twisted  wrong,  but  I  felt \nsomething immediately in the lower part of my back and down my \nright leg. \n \nQ And were you lifting one of those pieces that were 70 to 80 \npounds? \n \nA Yes, sir. \n \nQ Okay. Where was the pain located? \n \nA In  my  lower  back,  down  my  right  buttock,  and  down  into \nthe backside of my right leg. \n \nQ When you say lower back, are we talking like around your \nbeltline? \n \nA Yes, sir. \n \nQ Where did it hurt along your beltline? \n \n\nUpdegraff – H407474 \n \n-4- \nA It  went  over  to  my  right  side  and  then  down  the  right  side \nof my butt and the back of my right leg. \n \nQ Okay. And how far down your leg did it go? \n \nA At the time all the way down to my ankle. \n \nQ Okay. How would you describe that pain? \n \nA Sharp, throbbing, aching, burning. \n \nQ Was it immediate? \n \nA Immediately, yes. \n \n The claimant testified that he quickly reported his injury to his “lead” as follows: \nQ Okay. What did you do upon injuring yourself? \n \nA I told my lead, which is normally never even around us, but \nhe  just  happened  to  be  sitting  over  at  this  little  desk  and  I  went \nover  and  told  him  and  he  asked  me  if  I  thought  I  could  finish  the \nshift. \n \nQ Do you know what his name is? \n \nA Alex. \n \nQ Do you know his last name? \n \nA No, sir. \n \nQ Okay. Do you know if Alex saw this happen? \n \nA I have no idea. \n \nQ Okay. But you went immediately to Alex? \n \nA Yes, sir. \n \nQ Do you recall what you told Alex? \n \nA I  told  him  I  picked  up  that  piece  of  unit  there  and  hurt  my \nback  and  that  is  when  he  asked  me  if  I  thought  I  could  finish  the \nshift. \n\nUpdegraff – H407474 \n \n-5- \n \nQ Okay. You had about an hour left? \n \nA Yes, sir. \n \nQ What did you tell him? \n \nA I  told  him  I  could  do  it  because  I  am  already  there.  I  had \nlike an hour to go, so. ... \n \nQ Okay. So you did finish your shift? \n \nA Yes, sir. \n \nQ Okay. And then I take it you clocked out? \n \nA Yes, sir. \n \nQ Went home at 3:00? \n \nA Yes. \n \nQ What day of the week was this, do you remember? \n \nA Friday. \n \nQ Friday.  Okay.  Were  you  scheduled  to  work  the  next  two \ndays? \n \nA No. We was off that weekend. \n \nQ Okay. So Monday would have been your next day back? \n \nA Yes, sir. \n \n The claimant testified that he continued to experience pain after going home and visited \nthe  Baptist  Health  Medical  Center  Emergency  Room  in  Van  Buren,  Arkansas,  on  October  26, \n2024, due to his low back pain and difficulties. Following is a portion of that medical record: \nChief Complaint \nPatient presents with \n* Back Pain \n* Leg Pain – right \n\nUpdegraff – H407474 \n \n-6- \n \n*** \nMedical Decision Making \nCharles  F  Updegraff  62  y.o.  male  patient  presents  with  back  pain \nmost consistent with right back spasm with sciatica. \n \nDifferential  diagnoses  includes  lumbago  versus  musculoskeletal \nspasm/strain  versus  sciatica.  Less  likely  sciatica  as  straight  leg \nraise test is negative. \nNo back pain red flags on history or physical. \nPresentation  not  consistent  with  malignancy  (lack  of  history  of \nmalignancy,  lack  of  B  symptoms),  fracture  (no  trauma,  no  bony \ntenderness  to  palpitation),  cauda  equina  (no  bowel  or  urinary \nincontinence/retention,  no  saddle  anesthesia,  no  distal  weakness), \nAAA,  viscus  perforation,  osteomyelitis  or  epidural  abscess  (no \nIVDU,  vertebral  tenderness),  renal  colic,  pyelonephritis  (afebrile, \nno CVAT, no urinary symptoms). \n \nGiven the clinic picture, in indication for imaging. \n \nWill treat conservatively and follow up with PCP. \n \n*** \nAssessment/Plan \nCharles F Updegraff is a 62 y.o. male diagnosed today with \n \nFinal diagnosis: \nAcute right-sided low back pain with right-sided sciatica \n \nAt that time the claimant was prescribed cyclobenzaprine and meloxicam. \n I note that the medical records from the Baptist Health ER on October 26, 2024, deviates \nfrom the claimant’s testimony. That record reports back pain for two weeks and a history of back \nproblems including surgery. The claimant denies any history of low back difficulties but medical \nrecords  in  evidence  do  show  cervical  spine  difficulties  including  surgery.  In  regard  to  the  two \nweeks  of back  pain,  I  do  find  that  to  be  some  type  of clerical  error  in  that  the  claimant’s \ntestimony, reporting of injury, and all other medical records support his lumbar spine incident to \nhave occurred on October 25, 2024. \n\nUpdegraff – H407474 \n \n-7- \n The  claimant  was  asked  on  cross  examination  about  the  Baptist  Health  ER  report  from \nOctober 26, 2024, as follows: \nQ I am looking at a record from the emergency department at \nVan Buren, that is Claimant’s Medical Exhibit Page 001, and in \nthe first paragraph here it says, “Patient presents to the emergency \ndepartment  due  to  back  pain  with  radiation  into  his  right  leg  for \ntwo weeks now.” \n \nA I  seen  that  on  that  report  and  that  is  incorrect.  I  told  them \ntwo days, which would have been Saturday and the Friday, the day \nbefore. \n \nQ So  do  you  know  why  it  would  reflect  in  your  medical \nrecords that you have been complaining of pain for two weeks? \n \nA I have no idea why it says that on that paper. \n \n The  claimant  was  also  asked  about  that  medical  record  on  re-direct  examination  as \nfollows: \nQ Chuck, I am looking at this record that was referenced and \nit says, “Patient presents to the ED,” emergency department, “due \nto back pain with radiation into his right leg” and it says, “for two \nweeks now.” And you are saying that is wrong. It was not two \nweeks, it was two days? \n \nA I told them two days. \n \nQ The 25\nth\n and 26\nth\n? \n \nA Yes, sir. \n \nQ Okay. And then it says, “He states he was lifting a heavy \nwall panel at work,” and she has again, the nurse that took your \ninformation down says, “Two weeks ago.” \n \nA Yes. \n \nQ And you are saying that  was not two weeks ago.  That was \ntwo days ago? \n \nA Two days. \n\nUpdegraff – H407474 \n \n-8- \n \nQ Meaning the 25\nth\n and 26\nth\n? \n \nA Yes, sir. \n \nQ Okay. It then says – she goes on to say, “He has a history of \nback problems.” \n \n And  I  asked  you  on  Direct.  Have  you  ever  had  a  back \nproblem with your lumbar spine in your life? \n \nA Never in my life. \n \nQ Have you ever been to a doctor for a back problem? \n \nA Never. \n \nQ “With surgery in the past,” so you are saying you’ve never \nseen a doctor, much less had a back surgery? \n \nA Right. \n \nQ So that is false, as well? \n \nA Yes, sir. \n \nQ Okay. She goes on to say, “Prior to this, he did not have \nany back issues for a while.” \n \n You are saying you’ve never had a low back issue in your \nlife? \n \nA I never have. \n \n The claimant returned to work the following Monday and again reported his alleged work \ninjury. The claimant gave the following direct examination testimony about that process: \nQ Okay.  When  Monday  morning  came  around,  did  you  go \ninto the office? Did you go back to Trane? \n \nA Yes. I went back to work. \n \nQ Okay.  What  did  you  do  when  you  got  to  Trane  for  your \nshift on Monday morning? \n\nUpdegraff – H407474 \n \n-9- \n \nA I  seen  Jessie,  one  of  the  main  leads.  She  had  been  there \nlonger  than  Alex  had  been  and  I  told  her  what  happened  and  she \ntook me into a little room and had me fill out some papers and told \nme to sit there and wait until Alex, the safety guy, got there. There \nis another Alex. \n \nQ Another Alex? \n \nA Yes. \n \nQ Okay.  So  you  did  not  go  back  on  Monday  morning  and \nbegin your job? \n \nA No. \n \nQ It was about filling out workers’ comp paperwork? \n \nA Right. \n \nQ And Jessie assisted you with that? \n \nA Yes. \n \nQ And then you were to meet with a second Alex? \n \nA Yes. \n \nQ Okay. And you got all of the paperwork filled out? \n \nA Yes, sir. \n \nQ Okay. So, then, what happened on Monday? Did you work? \n \nA After, they took me over to their doctor over in Van Buren, \na clinic over there. \n \nQ Okay. \n \nA She ordered an MRI done. \n \nQ And  that  was  over  at  Conservative  Care  Occupational \nHealth? \n \nA Yes, sir. \n\nUpdegraff – H407474 \n \n-10- \n \n On  October  28,  2024,  the  claimant  was  seen  at  Conservative  Care  Occupational  Health \nby APRN Jacee Banning. Following is a portion of that medical record: \nEMPLOYER DESCRIPTION OF ACCIDENT \nRequested and authorized by: Alex \nMain Contact: Stephen Smith. \nEmployer   Description   of   Accident:   Employer   states   that   on \n10/25/24,  Charles  was  lifting  a  panel  from  floor  level  when  felt \npain to his lower back and right side of leg. He was seen at Baptist \nHealth ER in Van Buren on 10/26/24. \n \nPATIENT DESCRIPTION OF ACCIDENT \nPatient  states  that  he  was  picking  up  sections  of  wall  and  putting \nthem  on  a  unit  when  he injured  his  lower  back.  The  pain  is  going \nfrom his lower back down the back side of his right leg. \n \nCHIEF COMPLAINT \nLower back pain radiating down right leg. \n \nHISTORY OF PRESENT ILLNESS \nCharles’ primary problem is pain located in the lower back. He \ndescribes it as throbbing, aching. He considers it to be severe. The \nproblem  began  on  10/25/24.  Charles  says  that  it  seems  to  be \nconstant. He has noticed that it is made worse by Constant pain. It \nis improved with nothing. \n \nCOMMENTS ON HISTORY OF PRESENT ILLNESS \nCharles  is  here  for  an  initial  evaluation  of  a  low  back  injury  he \nsustained on 10/25/24 when he was lifting sections of wall while at \nwork.  He  reports  a  history  of  cervical  spine  herniated  disc  that \nrequired  surgery  in  1999;  however,  he  does  not  report  previous \ninjury to his lumbar spine. He was evaluated at Baptist ED in Van \nBuren   on   10/26/24   where   he   received   2   injections   and   a \nprescription  for  Flexeril.  He  is  unsure  of  what  injections  he \nreceived.  ED  records  have  been  requested.  He  states  he  has  tried \nFlexeril,  Aleve,  ibuprofen,  Biofreeze,  heat/ice  and  nothing  seems \nto help. He reports the pain radiates down his right leg. Given his \nhistory, I will order an MRI. \n \n*** \nDIAGNOSIS \n1. Radiculopathy, lumbar region (M54.16) \n2. Low back pain (M54.50) \n\nUpdegraff – H407474 \n \n-11- \n \nASSESSMENT \nCharles has lumbar pain with radiculopathy and I am unable to rule \nout   the   cause.   He   denies   any   numbness   or   incontinence   of \nbowel/bladder.  Discussed  evaluated  bp  with  patient.  He  states  he \nhas never had elevated blood pressure. Number and Complexity of \nProblems Addressed: 1 acute, uncomplicated illness or injury. \n \n On  November  6,  2024,  the  claimant  underwent  an  MRI  of  the  lumbar  spine  at  Synergy \nRadiology Associates. Following is a portion of  that diagnostic report that was authored by Dr. \nCharles Kim: \nFINDINGS: \nBones/joints:   The   normal   lumbar   lordosis   is   preserved.   No \nabnormalities  in  sagittal  alignment  are  identified.  The  vertebral \nbody  heights  are  maintained.  The  marrow  signal  is  within  normal \nlimits. \nSpinal  cord:  The  distal  cord  and  cauda  equina  nerve  roots  are \nunremarkable. The conus medullaris terminates at L1. \nL1-L2:  No  significant  disc  disease,  without  spinal  canal  or  neural \nforaminal stenosis. \nL2-L3:  Minimal  disc  bulging,  without  spinal  canal  or  neural \nforaminal stenosis. \nL3-L4:   Broad-based   disc   bulging   with   facet   arthrosis.   Mild \nbilateral  neural  foraminal  stenosis.  No  significant  spinal  canal \nstenosis. \nL4-L5:  Diffuse  disc  bulge  with  facet  arthrosis  and  hypertrophy  of \nligamentum  flavum.  Mild  bilateral  neural  foraminal  stenosis.  No \nsignificant spinal canal stenosis. \nL5-S1:  Posterior  annual  fissure  with  diffuse  disc  bulging.  Mild \nbilateral  neural  foraminal  stenosis.  No  significant  spinal  canal \nstenosis. \nSoft tissues: Unremarkable. \n \nIMPRESSION: \nMild degenerative changes of the lumbar spine. \n \n On  November  8,  2024,  the  claimant  was  again  seen  by  APRN  Banning  at  Conservative \nCare Occupational Health. Following is a portion of that medical record: \nCOMMENTS ON HISTORY OF PRESENT ILLNESS \n\nUpdegraff – H407474 \n \n-12- \nCharles  is  here  for  his  second  visit  for  evaluation  of  a  low  back \ninjury  he  sustained  on  10/25/24  when  he  was  lifting  sections  of \nwall while at work. He reports a history of cervical spine herniated \ndisc  that  required  surgery  in  1999;  however,  he  does  not  report \nprevious  injury  to  his  lumbar  spine.  He  reports  the  pain  is  still \nradiating  down  his  right  leg.  He  was  evaluated  at  Baptist  ED  in \nVan  Buren  on  10/26/24  where  he  received  an  injection  of  SOLU-\nMedrol,  and  injection  of  Norflex,  and  a  prescription  for  Flexeril. \nHe  reports  none  of  those  alleviated  his  pain.  He  has  also  tried \nAleve, ibuprofen, Biofreeze, and heat/ice. He reports none of those \nwere   helpful   either.   MRI   results   showing   mild   degenerative \nchanges  of  the  lumbar  spine  have  been  reviewed  and  discussed \nwith  patient.  I  recommend  that  he  try  Voltaren  gel.  When  I \nattempted to provide him with stretching exercises for sciatic pain, \nhe impolitely declined and stated, “I will go somewhere else.” I \nrecommended he follow up with his PCP as this does not appear to \nbe work related. \n \n*** \nDIAGNOSIS \n1. Radiculopathy, lumbar region (M54.16) \n2. Low back pain (M54.50) \n \nASSESSMENT \nCharles  continues  to  have  lumbar  pain  with  radiculopathy.  He \ndenies  any  numbness  or  incontinence  of  bowel/bladder.  Number \nand  Complexity  of  Problems  Addressed:  1  acute,  uncomplicated \nillness or injury. \n \n The claimant’s light duty status was removed by APRN Banning and the claimant was \nreleased to return to regular duty. Prior to that return to regular duty the claimant testified that he \nwas  unable  to  perform  the  light  duty  work  he  was  assigned.  Following  is  a  portion  of  the \nclaimant’s direct examination testimony: \nQ And what was your understanding of what light duty was? \n \nA That, I didn’t really know because I never had to do that in \nmy  life  as  far  as  light  duty  goes,  but  their  light  duty  consisted  of \nme  basically  doing  the  exact,  same  thing  I  was  doing  before  I  got \nhurt. \n \n\nUpdegraff – H407474 \n \n-13- \nQ Okay.  So  when  you  go  back  to  Trane  on  Monday  from \nOccupational Health, you are doing the same job that you had been \ndoing when you hurt your back? \n \nA Yes, sir. \n \nQ Okay. How long were you able to do that? \n \nA I worked that whole week, the first week of November, and \nI told them I couldn’t do that no more, so. ... \n \nQ Okay. \n \nA I could hardly walk. \n \nQ Okay. Was it making it worse? \n \nA Yes. \n \n After  the  claimant  testified  that  he  was  unable  to  perform  the  light  duty  work  he  was \nassigned, it was during that same time frame that he was released from care by APRN Banning. \nThe  claimant  was  then  seen  at  Baptist  Health  Medical  Center  ER  in  Fort  Smith.  The  claimant \ncontinued to complain of lumbar spine pain and difficulties. The claimant was recommended to \nget a referral from his primary care physician to neurosurgery. \n The  claimant  received  a  referral  from  Dr.  Sarikun  Tjandra  to  Dr.  Arthur  Johnson,  a \nneurosurgeon, and began to see Dr. Johnson’s medical staff on December 5, 2024, when the \nclaimant was seen by APRN Billie Jo Nelson. Following is a portion of that medical record: \nSubjective: \nCharles F Updegraff is a 62 y.o. year-old male seen at the request \nof Tjandra, Sarikun, MD who comes to us with a history of lower \nback pain since 10/25/2024 after lifting something heavy at  work. \nHe reports that after he lifted the air conditioner, he felt immediate \npain,  numbness,  tingling,  and  burning  that  radiates  into  right \nbuttock,  and  posteriorly  down  leg  to  ankle.  He  reports  that  he  has \ntried  NSAIDs,  heat/cold  therapy,  muscle  relaxant,  opioids,  and \nGabapentin  with  no  improvement.  He  states  that  he  has  not  been \nable  to  sleep  very  much  due  to  the  pain.  Hurts  to  walk,  stand,  sit \n\nUpdegraff – H407474 \n \n-14- \nand lay down. No PT, no injections. Has been to ER several times \nand  was  given  shots  of  morphine  which  have  also  not  helped.  He \nrates the pain a 9/10. \n \nBack Pain \nThis  is  a  new  problem.  The  current  episode  started  more  than  1 \nmonth ago. The problem occurs constantly. The problem has been \nrapidly  worsening  since  onset.  The  pain  is  present  in  the  gluteal \nand  lumbar  spine.  The  quality  of  the  pain  is  described  as  aching, \nburning, shooting and stabbing. The pain radiates to the right knee \nand right thigh. The pain is at a severity of 10/10. The pain is The \nsame  all  the  time.  The  symptoms  are  aggravated  by  bending, \nposition,  laying  down,  sitting,  standing  and  twisting.  Stiffness  is \npresent All day. Associated symptoms include leg pain, numbness, \nparesthesias, tingling and weakness. Pertinent negatives include no \nabdominal  pain,  bladder  incontinence,  bowel  incontinence,  chest \npain,  dysuria,  fever,  headaches,  paresis,  pelvic  pain  or  perianal \nnumbness. Risk factors include recent trauma. \n \n*** \nVisit Diagnoses \nAcute right-sided low back pain with right-sided sciatica – Primary \nAnnular tear of lumbar disc; L5-S1 \nDegeneration   of   intervertebral   disc   of   lumbar   region   with \ndiscogenic back pain and lower extremity pain \nLumbar disc herniation with radiculopathy \nFacet arthropathy, lumbar \n \n* Patient has annual tear and small disc herniation at L5-S1 that is \nmore likely than not secondary to heavy lifting at work. Patient is \nto  be  on  light  duty  with  no  bending,  no  kneeling,  no  stooping,  no \ntwisting, and no lifting more than 10 lbs until after re-evaluated at \nhis follow-up. \n*   Physical   therapy   with   lumbar   traction   to   alleviate   pain, \ndiscomfort and improve mobility. \n* Refer to Dr. Clint Wood for LESI – Radiculopathy is severe and \ngreatly impacts patient’s quality of life and function \n*If  conservative  treatments  are  not  effective,  will  schedule  with \nDr. Johnson for surgical consultation. \n \nThe   claimant   underwent   physical   therapy   and   two   epidural   steroid   injections at   the \nrecommendation of APRN Nelson with little to no relief. \n\nUpdegraff – H407474 \n \n-15- \n Dr. Johnson saw the claimant on February 25, 2025. Following is a portion of that clinic \nnote. \nFebruary  25,  2025:  He  is  here  for  a  surgical  consultation  of  his \nlumbar areas. He finished the physical therapy program and he has \nhad  2  Epidural  injections.  He  states  that  nothing  has  worked.  He \ncontinues  to  have  back  pain,  pain,  buttock  and  down  his  right  leg \nall  the  way  to  his  ankle.  Has  numbness,  tingling  and  burning \nsensation.  Bearing  down  to  move  bowel  causes  pain.  He  has \ndifficulty sleeping due to pain. \n \n*** \nPlan: \nI  have  discussed  the  treatment  options  which  I  believe  include \nmodified activity, therapy, injections, and surgery. \n \nBased on that discussion we are going to proceed with: \n \nNeuroforaminal stenosis of lumbar spine, right L5-S1 \nRight L5-S1 microdiscectomy \n \nLumbar disc herniation with radiculopathy, right L5-S1 – Primary \nRight L5-S1 microdiscectomy \n \n*** \n* Schedule right L5-S1 microdiscectomy \n* The disc at the L5-S1  level does cause  compression of the right \nS1  nerve  root  and  the  nerve  root  itself  appears  to  be  slightly \ninflamed. \n \n The  claimant  underwent  surgical  intervention  at  the  hands  of  Dr.  Johnson  on  March  6, \n2025,  in  the  form  of  a  microdiscectomy  at  the  L5-S1  level  of  the  lumbar  spine.  Following  are \nportions of that operative report: \nPreoperative Diagnosis: Active Problems \nLumbar disc herniation with radiculopathy, right L5-S1 \nNeuroforaminal stenosis of lumbar spine, right L5-S1 \n \nPostoperative Diagnosis: Active Problems \nLumbar disc herniation with radiculopathy, right L5-S1 \nNeuroforaminal stenosis of lumbar spine, right L5-S1 \n \n\nUpdegraff – H407474 \n \n-16- \nProcedure: \nHemilaminectomy  with  decompression  of  the  right  L5-S1  nerve \nroot,  partial  facetectomy,  foraminotomy  and  excision  of  herniated \nintervertebral disc at L5-S1. \n \n The   claimant   has   asked   the   Commission to   determine whether   he   sustained   a \ncompensable lumbar spine injury on October 25, 2024.  \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n The claimant must prove the existence of objective medical findings. The March 6, 2025, \noperative report authored by Dr. Johnson and the claimant’s November 6, 2024, lumbar spine \nMRI both provide objective medical findings of derangement to the claimant’s lumbar spine; \nspecifically, at the L5-S1 level where the MRI revealed a “posterior annular fissure with diffused \ndisc bulge.” This is the same level that Dr. Johnson performed a microdiscectomy on March 6, \n2025. \n The  claimant  must  also  show  by  a  preponderance  of  the  evidence  a causal connection \nbetween the lifting incident on October 25, 2024, he alleges and those objective medical findings \nhe is able to prove. The  claimant immediately reported his injury and sought medical treatment \nthe  day  after.  The  claimant  then  re-reported  his  injury  when  he  returned  to  work  after  the \nweekend. The claimant’s testimony has been consistent with medical records in evidence, except \n\nUpdegraff – H407474 \n \n-17- \nthe first emergency room visit, which reports an injury two weeks ago instead of two days ago. I \nbelieve  this  to  be  an  error  in  the  medical  record.  The  claimant  has  no  prior  history  of  lumbar \nspine  difficulties  until  his  October  25,  2024,  incident.  APRN  Nelson,  who  is  part  of  Dr. \nJohnson’s medical team, in a December 5, 2024, medical record states, “Patient has ulnar tear \nand small lumbar disc herniation at L5-S1 that is more likely than not secondary to heavy lifting \nat work.” Finally, the claimant reports that the surgical intervention by Dr. Johnson has improved \nhis condition and on direct examination gave the following testimony: \nQ Okay. All right. So on March 6\nth\n of this year, of 2025, you \ndo, in fact, go to Dr. Johnson and he performs what he called in his \nrecords a microdiscectomy? \n \nA Yes, sir. \n \nQ Okay. At L5-S1. What were the results of that surgery? \n \nA It helped a lot. I don’t have no more pain in my right leg. \n \nQ Okay. So let’s stick with the right leg. So you are saying \nthe burning, stabbing, charley horse pain that had been in your leg \nsince 10/25 was gone? \n \nA Yes. \n \nQ Okay.  Not  down  to  a  seven  or  a  five  or  a  three.  You  are \nsaying that pain was gone? \n \nA Yes. \n \nQ Do   you   ever   have   any   problems   with   the   right   leg \nanymore? \n \nA Every now and  then  it  will  flare  up.  It  lasts  for  a  few \nseconds and goes away. \n \nQ What does that feel like? \n \nA Kind of like a throbbing. \n \n\nUpdegraff – H407474 \n \n-18- \nQ Okay. But you are saying that lasts for only a few seconds? \n \nA Yes, sir. \n \nQ Okay. So would you consider – as we sit here today, would \nyou consider your right leg healed by this surgery? \n \nA Yes. \n \nQ Okay. Let’s talk about your low back now. You said before \nthe surgery it was a ten. It was the worse pain you’ve had. \n \nA Right. \n \nQ After  the  surgery,  after  Dr.  Johnson  went  in  and  did  the \nmicrodiscectomy  that  removed  all  your  right  leg  pain,  what  did  it \ndo for pain in your lumbar spine? \n \nA It knocked it downs to about a seven. \n \nQ Okay. So you went from a ten to a seven? \n \nA Yes, sir. \n \n The  claimant  is  able  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained  a \ncompensable lumbar spine injury on October 25, 2024.  \n The  claimant  has  asked  the  Commission  to  determine  whether  he  is  entitled  to medical \ntreatment for his compensable lumbar spine injury. \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n\nUpdegraff – H407474 \n \n-19- \n After  a  review  of  the  medical  evidence  submitted  into  the  record,  I  find  the  treatment \nrecords  admitted  into  evidence  are  reasonable  and  necessary  treatment  for  the  claimant’s \ncompensable  lumbar  spine  injury.  The  respondents  shall  be  responsible  for  the  payment  of  that \ntreatment.  This  is  to  include  reimbursement  to  the  claimant  for  out-of-pocket  expenses  and \nmileage per the Arkansas Workers' Compensation Act. \n The claimant has asked the Commission to determine if he is entitled to temporary total \ndisability benefits.  \n  In order to be entitled to temporary total disability benefits, the claimant has the burden \nof proving by a preponderance of the evidence that he remains within his healing period and that \nhe suffers a total incapacity to earn wages as a result of his compensable injury. Arkansas State \nHighway  &  Transportation  Department  v.  Breshears, 272  Ark.  244,  613  S.W.  2d  392  (1981).\n The  claimant  last  worked  for  the  respondent  at  the  end  of  the  first week  of November \n2024. It was the claimant’s testimony that he was unable to continue doing the light duty work \nthat was assigned to him by the respondent. The medical provider of the respondent’s choice \nduring that same time frame determined via APRN Banning that the claimant’s back difficulties \nwere  not  work  related  and  returned  the  claimant  to  regular  duty.  However,  the  claimant  did \nsuffer a compensable lumbar spine injury and was in his healing period during that time frame. I \nfind  that  the  claimant  was  suffering  a  total  incapacity  to  earn  wages  due  to  his  compensable \nlumbar spine injury when he was no longer able to continue light duty work sometime around the \nend  of  the  first  week  of  November  2024.  The  claimant  is  entitled  to  temporary  total  disability \nbenefits which shall begin the day after he last worked in November 2024 until a date yet to be \ndetermined.  \n\nUpdegraff – H407474 \n \n-20- \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  21,  2025,  and  contained  in  a  Pre-hearing  Order  filed August  22,  2025,  are  hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  sustained  a \ncompensable lumbar spine injury on October 25, 2024. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nmedical treatment for his compensable lumbar spine injury, including reimbursement for out-of-\npocket expenses and mileage per the Arkansas Workers' Compensation Act. \n 4.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \ntemporary  total  disability  benefits  beginning  the  day  after  he  last  worked  for  the  respondent  in \nNovember 2024 to a date yet to be determined.  \n 5.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney’s fee in this matter. \n ORDER \nThe  respondents  shall  pay  the  costs  associated  with  the  medical  treatment  for  the \nclaimant’s compensable lumbar spine injury, including surgical intervention by Dr. Johnson. The \nrespondents  shall  also  be  responsible  for  any  out-of-pocket  expenses  of  the  claimant  from  said \nmedical treatment, including mileage, as directed by the Arkansas Workers’ Compensation Act. \n\nUpdegraff – H407474 \n \n-21- \nThe respondents shall pay the claimant temporary total disability benefits beginning the day after \nthe  last  day  the  claimant  worked  in  November  2024  to  a  date  yet  to  be  determined.  That \ntemporary  total  disability  shall  be  paid  at  the  appropriate  rate  which  was  not  an  issue  brought \nbefore the Commission in this matter. \n The respondent shall pay to the claimant’s attorney the maximum statutory attorney’s \nfee  on  the  benefits  awarded  herein,  with  one-half  of said  attorney’s  fee  to  be  paid  by  the \nrespondent in addition to such benefits and one-half of said attorney’s fee to be withheld by the \nrespondent from such benefits pursuant to Ark. Code Ann. § 11-9-715. \n All sums herein accrued are payable in a lump sum and without discount and shall earn \ninterest at the legal rate until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":35030,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H407474 CHARLES UPDEGRAFF, Employee CLAIMANT TRANE COMMERCIAL, Employer RESPONDENT FARMINGTON CASUALTY CO., Carrier RESPONDENT OPINION FILED JANUARY 22, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Cl...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["lumbar","back","ankle","strain","fracture","cervical","herniated","knee"],"fetchedAt":"2026-05-19T22:33:07.846Z"},{"id":"alj-H407103-2026-01-21","awccNumber":"H407103","decisionDate":"2026-01-21","decisionYear":2026,"opinionType":"alj","claimantName":"Ronald Holub","employerName":"Tri State Enterprises, Inc","title":"HOLUB VS. TRI STATE ENTERPRISES, INC. AWCC# H407103 January 21, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HOLUB_RONALD_H407103_20260121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOLUB_RONALD_H407103_20260121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H407103 \n \nRONALD HOLUB, Employee CLAIMANT \n \nTRI STATE ENTERPRISES, INC., Employer RESPONDENT \n \nCHARTER OAK FIRE INS CO., Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 21, 2026 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented  by  JARID  M.  KINDER,  Attorney  at  Law,  Fayetteville,  Arkansas; \nalthough not appearing at the hearing. \n \nRespondents  represented  by GUY  ALTON  WADE,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On  October  20,  2024,  Attorney  Kinder  filed  Form  AR-C  on  behalf  of  claimant \nrequesting  additional  compensation  benefits  relating  to  an  injury  that  occurred  on  May \n1, 2024. Following a prehearing conference on April 23, 2025, a Prehearing Order was \nfiled, and  a  hearing  was  set  on  claimant’s  entitlement  to  additional  compensation \nbenefits for June 16, 2025. Prior to that scheduled hearing, claimant requested that the \nhearing  be  cancelled  and  Attorney  Kinder  indicated  that  claimant  was  withdrawing  his \nrequest for a hearing at that time. \n\nHolub – H407103 \n \n-2- \n No  further  action  was  taken  until  respondent  filed  a  Motion  to  Dismiss  on \nNovember 6, 2025. A hearing was scheduled on the respondent’s motion for January 5, \n2026. Notice of the hearing was sent to claimant by certified mail and was delivered on \nNovember  28,  2025.  Claimant  did  not  appear  at  the  hearing.  In  an  email  dated \nNovember  24,  2025,  Attorney  Kinder  indicated  that  claimant  had  no  objection  to  the \nMotion to Dismiss and waived his appearance the hearing. \n Pursuant  to  11  CAR §25-110(d) (previously  codified  as  Commission  Rule \n099.13), the Commission may enter an order dismissing a claim for want of prosecution. \nAfter my  review  of  the  respondent’s motion,  the  claimant’s statement  that  does  not \nobject  to  hearing  respondent’s  motion, and  all  other  matters  properly  before  the \nCommission, I find that claimant has failed to prosecute this claim. Therefore, this claim \nis dismissed without prejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2422,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H407103 RONALD HOLUB, Employee CLAIMANT TRI STATE ENTERPRISES, INC., Employer RESPONDENT CHARTER OAK FIRE INS CO., Carrier RESPONDENT OPINION FILED JANUARY 21, 2026 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:32:59.483Z"},{"id":"alj-H503404-2026-01-21","awccNumber":"H503404","decisionDate":"2026-01-21","decisionYear":2026,"opinionType":"alj","claimantName":"Gracelin Taylor","employerName":"White County Medical Center, Inc","title":"TAYLOR VS. WHITE COUNTY MEDICAL CENTER, INC. AWCC# H503404 January 21, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TAYLOR_GRACELIN_H503404_20260121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TAYLOR_GRACELIN_H503404_20260121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H503404 \nGRACELIN TAYLOR, EMPLOYEE     CLAIMANT \n \nWHITE COUNTY MEDICAL CENTER, INC., \nEMPLOYER, SELF INSURED       RESPONDENT \n \nSELF INSURED ADMINISTRATOR     RESPONDENT \n \nOPINION AND ORDER FILED JANUARY 21, 2026 \n \nA Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, was held on January 23, 2026. \nClaimant was pro-se and failed to appear. \nRespondents were represented by Guy Alton Wade of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 13\nth\n day of January 26\nth\n, in \nLittle  Rock,  Arkansas, on Respondent’s  Motion  to  Dismiss  for  failure  to  prosecute \npursuant to Arkansas Code Ann. 11-9-702 and 11 C.A.R. 25-110(d) which was previously \nnamed Rule 099.13 of the Arkansas Workers’ Compensation Commission. The claimant \nwas pro se and failed to appear. The Respondents were represented by Guy Alton Wade \nof Little  Rock, Arkansas. The  Claimant had previously been  represented by Mark  Alan \nPeoples, who was allowed to withdraw by an Order of the Full Commission, dated October \n8, 2025.  \n A Motion to Dismiss by letter was filed on November 10, 2025. A First Report of \nInjury along with an AR-2 were both filed on June 4, 2025, providing that the date of injury \nwas May 21, 2025. A Form C was filed on June 5, 2025, which provided that the Claimant \nhad been attacked by a patient. The claim for injury was accepted as compensable. The \nClaimant has taken no steps since the original filing to pursue her claim and has made \n\nGracelin Taylor – H503404 \n2 \n \nno filing for discovery, no filing of responses to the propounded interrogatories, and no \nresponse to the Motion to Dismiss. The Claimant has not taken any action to prosecute \nher claim, and it has been more than six months since the Claimant has filed her AR-C \nor requested a hearing. \n After proper and reasonable notice, a hearing was held on January 13, 2026, and \nthe Claimant failed to appear. The Respondents were represented by Guy Alton Wade, \nwho requested that the matter be dismissed pursuant to 11 C.A.R. 110(d) of the Arkansas \nWorkers’ Compensation Commission and the  provisions  of Arkansas Code Ann.  11-9-\n702.   \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion  to  Dismiss without  prejudice pursuant  to 11  C.A.R.  110(d) of  the  Arkansas \nWorkers’ Compensation Commission and  A.C.A.  11-9-702, based  upon  the  Claimant \nfailing to prosecute her claim within the last six months and after a meritorious application \nto  the  Commission  by  the  Respondent  requesting  that  the  claim  be  dismissed after \nreasonable notice to all parties.    \nIT IS SO ORDERED. \n                \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":2999,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H503404 GRACELIN TAYLOR, EMPLOYEE CLAIMANT WHITE COUNTY MEDICAL CENTER, INC., EMPLOYER, SELF INSURED RESPONDENT SELF INSURED ADMINISTRATOR RESPONDENT OPINION AND ORDER FILED JANUARY 21, 2026 A Hearing before Administrative Law Judge James D. Kennedy in Litt...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:01.552Z"},{"id":"full_commission-H204677-2026-01-20","awccNumber":"H204677","decisionDate":"2026-01-20","decisionYear":2026,"opinionType":"full_commission","claimantName":"Natasha Onick","employerName":"Jacksonville North Pulaski School District","title":"ONICK VS. JACKSONVILLE NORTH PULASKI SCHOOL DISTRICT AWCC# H204677 January 20, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Onick_Natasha_H204677_20260120.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Onick_Natasha_H204677_20260120.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H204677 \n \nNATASHA ONICK, EMPLOYEE  CLAIMANT \n \nJACKSONVILLE NORTH PULASKI \nSCHOOL DISTRICT, EMPLOYER RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED JANUARY 20, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed October 14, 2025.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Commission has jurisdiction over these claims.  \n \n2. The stipulations as set forth above are reasonable and are \nhereby accepted. \n \n3. The claimant has failed to prove by a preponderance of the \nevidence that she is entitled to any additional medical benefits \nsince exercising her right to a Change of Physician.  \n\n \nONICK - H204677  2\n  \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's October 14, \n2025 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents.","textLength":2101,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204677 NATASHA ONICK, EMPLOYEE CLAIMANT JACKSONVILLE NORTH PULASKI SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 20, 2026 Upon review before th...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.917Z"},{"id":"alj-H407255-2026-01-16","awccNumber":"H407255","decisionDate":"2026-01-16","decisionYear":2026,"opinionType":"alj","claimantName":"Willie Nash","employerName":"Goodyear Tire & Rubber Co","title":"NASH VS. GOODYEAR TIRE & RUBBER CO. AWCC# H407255 January 14, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/NASH_WILLIE_H407255_20260116.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NASH_WILLIE_H407255_20260116.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H407255 \n \n \nWILLIE NASH, EMPLOYEE                                                                                     CLAIMANT \n \nGOODYEAR TIRE & RUBBER CO.,  \nEMPLOYER                                                                                                           RESPONDENT                                                                                                       \n \nLIBERTY INSURANCE CORP., \nCARRIER/TPA                                                                                                      RESPONDENT                                                                      \n                                                                                                       \nOPINION FILED JANURARY 14, 2026   \n \nHearing held before ADMINSTRTATIVE JUDGE CHANDRA L.  BLACK, in Miller County, \nTexarkana, Arkansas. \n \nThe pro se Claimant failed to appear at the dismissal hearing.         \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, Attorney at Law, Little \nRock, Arkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on January 14, 2026, in the above-referenced matter pursuant to Dillard \nv. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), to determine whether \nthis case should be dismissed for failure to prosecute under the provisions of Ark. Code Ann. §11-\n9-702 (Repl.  2012), and Arkansas  Workers’ Compensation Commission  Rule  099.13 (now \ncodified at 11 C.A.R. § 25-110(d)). \nAppropriate notice of this hearing was tried on all parties to their last known address, in \nthe manner instructed by law.   \nNo testimony was taken. \nThe record consists of the hearing transcript of January 1, 2026, and the documents held \ntherein.  Commission’s Exhibit 1 consisting of five pages, and one envelope for a total of (6) pages \nhas been marked accordingly, and Respondents introduced into evidence an exhibit consisting of \n\nNASH – H407255 \n \n2 \n \ntwenty-nine (29) pages,  which was thus marked Respondents’ Exhibit 1. Both  exhibits  were \nintroduced into evidence without objection.  \n                                                               Background \n The procedural history of this claim is as follows: \n This claim involves an alleged back injury on or about October 18, 2024.  The Claimant \nreported to management that he was placing a transport bar into a “full wind-up roll” that was on \na hoist, when one side fell from the hoist jarring him causing him to strain his back and right leg.  \n  On November 7,  2024,  the Respondents’ case manager filed  a  Form  AR-2,  with  the \nCommission accepting compensability of the claim for a compensable lower lumbar/back injury.  \nThe Respondents filed an amended Form AR-2 with the Commission on November 25, 2024, to \ncorrect the Claimant’s correct average weekly wage. Contrariwise, the Respondents filed another \nAmended Form AR-2 with the Commission on December 9, 2024, controverting the claim stating, \n“We have medical evidence of pre-existing DDD and disc protrusion at L4-5.”     \n As a result, the Claimant retained legal representation in this case. The Claimant’s attorney \nrequested a hearing on the merits of this claim.  As a result, the hearing process was started by my \noffice.  Counsel for the Claimant filed a response to the Prehearing Questionnaire on February 4, \n2025.   Per  the  aforementioned  responsive  filing,  the  Claimant  asserted  that  he  sustained  a \ncompensable  injury  for  which  he  was  entitled  to  medical  benefits,  temporary  total  disability \ncompensation and an attorney’s fee. The Respondents’ attorney filed a response on behalf of her \nclient on or about February 4, 2025, restating their position of controverting the claim. I conducted \na prehearing telephone conference with the parties on May 14, 2025.  At that time, I scheduled a \nfull hearing in this matter for July 8, 2025.  Ultimately, the Claimant’s attorney moved the hearing \nbe canceled and the claim was returned to the Commission’s general files, which was done.      \n\nNASH – H407255 \n \n3 \n \n Subsequently,  on  September  9,  2025,  the  Claimant  attorney  filed  a  motion  to  withdraw \nfrom representing the Claimant in this matter.  On October 1, 2025, the Full Commission granted \nthe Claimant’s attorney’s motion to withdraw as counsel of record in this case.    \n Subsequently, on February 20, 2025, the Claimant’s attorney filed a motion to withdraw \nfrom representing the Claimant this claim.  On March 20, 2025, the Full Commission entered an \norder granting the motion.    \n Since this time, the Claimant has not taken any action to pursue or otherwise resolve his \nclaim.  Most significantly, the Claimant has not requested a hearing subsequent to the last filing \nof a request for a hearing which was clearly done more than six (6) months ago. \nConsequently, it  appears  that  on  or  about  October  31,  2025, the Respondents  filed  a \nRespondents’ Motion to Dismiss with the Commission.  The Respondents notified the Claimant \nof said motion per a certificate of service sent via the United States Postal Service.      \nSubsequently, on July 15, 2025, my office sent a letter-notice informing the Claimant of \nthe Respondents’ motion to  dismiss,  and  a  deadline of  twenty (20) days  for  filing  a  written \nresponse.  This letter was sent via both first-class and certified mail.  The letter-notice sent by way \nof first-class mail has not been returned to the Commission.   \nSaid dismissal hearing  was  scheduled  for October  14,  2025,  at 9:30 a.m., in  Texarkana, \nArkansas.  This hearing notice was sent via first-class and certified mail. \nMy office mailed a notice to the Claimant notifying him of the Respondents’ motion for \ndismissal of this claim. On November 14, 2025, the Claimant picked up the notice from the Postal \nFacility. The return receipt request bears the Claimant’s signature. \nOn January 6, 2026, the Claimant’s called the Commission’s legal advisors’ team  to  let \nthem know that he does not wish to pursue his workers’ compensation claim.  The hearing notice \n\nNASH – H407255 \n \n4 \n \nwas sent to the Claimant via certified mail and first-class mail.  The notice sent by regular mail \nhas not been returned the Commission.  However, the notice sent to the Claimant via certified mail \nwas returned to Commission and it was mark unclaimed.  Under these circumstances, I find that \nthe Claimant received notice of the hearing as provided under the relevant law. \nOn January 25, 2026, my office sent a Notice of Hearing to the parties informing them that \nthis claim was scheduled for January 13, 2026, at 10:00 a.m., in Texarkana Arkansas.   \nA hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \ndid not appear for the hearing.  However, the Respondents appeared through their attorney.  The \nRespondents’ counsel argued, among other things, that the Claimant has failed to timely prosecute \nhis claim for workers’ compensation benefits.   Counsel  further  noted  that  the  Claimant  did  not \nappear at the hearing to object to his claim being dismissed, and he has indicated that he does not \nwish  to  pursue  his  claim.   As  such, Counsel moved that  this  claim  be  dismissed for  failure  to \nprosecute under Ark. Code  Ann. §11-9-702,  and Commission Rule  099.13 (now  codified  at  11 \nC.A.R. § 25-110 (d)), without prejudice. \n    Adjudication   \nTherefore, the statutory provision and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAlso, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \n\nNASH – H407255 \n \n5 \n \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 (now codified at 11 C.A.R. § 25-110 (d), reads as follows: \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            Although the Claimant did not file a formal claim by way of a Form AR-C, the Claimant’s \nattorney filing of a written request for a hearing along with the filing of Claimant’s response to the \nPrehearing Questionnaire is sufficient to constitute the filing of a claim for workers’ compensation \nbenefits.  \n A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute his claim since the filing of his claim \nmore than  six  (6)  months ago; and  nor  has  he  resisted  the motion to  dismiss  his claim despite \nhaving  received  notice  of  the dismissal hearing. Thus, the  evidence  preponderates  that  the \nClaimant has clearly failed to prosecute this claim for workers’ compensation benefits.  For these \nreasons, and among other facts stated above, I am convinced that the Claimant has abandoned his \nclaim.   \n\nNASH – H407255 \n \n6 \n \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant to Ark. Code \nAnn.§11-9-702, and Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110 (d)), this claim \nfor  workers’ compensation benefits is  hereby  respectfully dismissed without  prejudice to  the \nrefiling of  it within  the limitation  period specified under the Arkansas Workers’ Compensation \nAct (referred to herein as the “Act”). \n                           FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. The Claimant’s attorney previously filed a claim asserting his entitlement \nto workers’ compensation benefits. Claimant has not requested a bona fide \nhearing in the last six (6) months, and he has notified the Commission that \nhe does not wish to pursue this claim for workers’ compensation benefits.  \n \n3. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n4. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The evidence  preponderates  that  the Respondents’ motion to dismiss this \nclaim for lack of prosecution is well founded, and should be hereby granted, \nwithout prejudice,  per  Ark.  Code  Ann. §11-9-702,  and  Commission  Rule \n099.13(now codified at 11 C.A.R. § 25-110 (d)) to the refiling of it within \nthe limitation period specified by law.  \n             \nORDER \n \nBased  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’ compensation benefits.  This dismissal is made pursuant to the provisions of Ark. Code  \n\nNASH – H407255 \n \n7 \n \nAnn. §11- 9-702, and Commission Rule 099.13(now codified at 11 C.A.R. § 25-110 (d)), without \nprejudice to the refiling of this claim within the limitation period specified under the Act. \nIT IS SO ORDERED. \n \n     \n                                   \n                                                             _____________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":13099,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H407255 WILLIE NASH, EMPLOYEE CLAIMANT GOODYEAR TIRE & RUBBER CO., EMPLOYER RESPONDENT LIBERTY INSURANCE CORP., CARRIER/TPA RESPONDENT OPINION FILED JANURARY 14, 2026 Hearing held before ADMINSTRTATIVE JUDGE CHANDRA L. BLACK, in Miller County, Texarkana, A...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["back","strain","lumbar"],"fetchedAt":"2026-05-19T22:32:55.233Z"},{"id":"full_commission-H005827-2026-01-15","awccNumber":"H005827","decisionDate":"2026-01-15","decisionYear":2026,"opinionType":"full_commission","claimantName":"Earl Glass","employerName":"Arkansas Department Of Correction","title":"GLASS VS. ARKANSAS DEPARTMENT OF CORRECTION AWCC# H005827 & H106715 January 15, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Glass_Earl_H005827H106715_20260115.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Glass_Earl_H005827H106715_20260115.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NOS. H005827 & H106715 \n \nEARL GLASS, \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF CORRECTION,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nTPA \nRESPONDENT \n \nOPINION FILED JANUARY 15, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski \nCounty, Arkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. \nMCLEMORE, Attorney at Law, Little Rock, Arkansas. \n \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Respondents appeals and claimant cross-appeals an opinion and \norder of the Administrative Law Judge filed on May 20, 2025.  In said \norder, the Administrative Law Judge made the following findings of fact \nand conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby \naccepted. \n \n3. Claimant has proven by a preponderance of the evidence that \nhe owed for underpayment(s) related to a miscalculated \naverage weekly wage associated with his second accident \n(Claim H106715). \n\nGLASS – H005827 & H106715   2 \n \n \n4. The Claimant failed to prove by a preponderance of the \nevidence that he is entitled to permanent partial disability \nbenefits associated with his low back injuries. \n \n5. The Claimant has failed to prove by preponderance of the \nevidence that he is entitled to benefits associated with the \nunauthorized medical treatment he sought through the Pain \nTreatment Centers of America. \n \n6. The Claimant failed to prove by a preponderance of the \nevidence that the Respondents controverted the benefits he \nreceived in relation to his compensable right hip injuries. \n \n7. The Claimant proved by a preponderance of the evidence that \nhis left hip injury is a compensable consequence of his accepted \ncompensable right hip injuries. \n \n8. The Claimant failed to prove by a preponderance of the \nevidence that he is permanently and totally disabled; but he \nproved by a preponderance of the evidence that he is entitled to \na wage-loss benefit in the amount of twenty-five percent (25%) \nover and above his fifteen percent (15%) whole-body \nimpairment rating for his accepted compensable right hip \ninjuries. \n \n9. The Claimant has proven by a preponderance of the evidence \nthat he is entitled to an attorney’s fee on the indemnity benefits \nawarded in this opinion. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's May 20, \n2025 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find \nfrom a preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n\nGLASS – H005827 & H106715   3 \n \n All accrued benefits shall be paid in a lump sum without discount \nand with interest thereon at the lawful rate from the date of the \nAdministrative Law Judge's decision in accordance with Ark. Code Ann. § \n11-9-809 (Repl. 2012). \n For prevailing on this appeal before the Full Commission, \nclaimant’s attorney is entitled to fees for legal services in accordance with \nArk. Code Ann. § 11-9-715(Repl. 2012).  For prevailing on appeal to the \nFull Commission, the claimant’s attorney is entitled to an additional fee of \nfive hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-\n715(b)(Repl. 2012). \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n I must respectfully dissent from the majority opinion. In my \nde novo review of the record, I find that the claimant’s left hip complaints \nare not a compensable consequence of his compensable right hip injury. \nThe claimant is not entitled to a twenty-five percent (25%) wage-loss \n\nGLASS – H005827 & H106715   4 \n \ndisability over and above his fifteen percent (15%) anatomical impairment \nrating.     \nThe respondent was a 66-year-old former mental health counselor \nfor the Arkansas Department of Correction. In the course of his \nemployment, claimant sustained two separate injuries: one to his right hip \nand low back on August 5, 2020, and one to the right hip, low back, right \nknee and bilateral shoulders on August 2, 2021.  \n A hearing was held before an administrative law judge (ALJ) \non May 20, 2025.  The following issues were presented:  \n1. Whether the average weekly wage was miscalculated for the \npurpose of benefits associated with the claimant’s second \nworkplace incident and injuries.   \n2. Whether the claimant is entitled to PPD benefits associated with \nhis accepted compensable low back injuries.  \n3. Whether the claimant is entitled to additional medical treatment \nwith Pain Treatment Centers of America for his accepted \ncompensable low back, right knee, and bilateral shoulder \ninjuries.  \n4. Whether the claimant is entitled to a controverted attorney’s fee \nrelated to indemnity benefits already provided in relation to his \ncompensable right hip injuries.  \n5. Whether the claimant’s alleged left hip injury is a compensable \nconsequence of his compensable right hip injuries.  \n\nGLASS – H005827 & H106715   5 \n \n6. Whether the claimant is entitled to permanent and total disability \nbenefits or, in the alternative, wage-loss benefits associated with \nhis compensable injuries. He claims that this entitlement relates \nto either or both claims.  \n7. Whether the claimant is entitled to an attorney’s fee on the \nadditional indemnity benefits being sought. \nThe ALJ opined that the claimant has met his burden of proving that \nhis left hip pain is a compensable consequence of his compensable right \nhip injury, and the claimant is entitled to a twenty-five percent (25%) wage \nloss disability over and above his fifteen percent (15%) anatomical \nimpairment rating.  The respondents appeal and the claimant cross-\nappeals. \nGenerally, a specific incident injury is an accidental injury arising \nout of the course and scope of employment caused by a specific incident \nidentifiable by time and place of an occurrence. Ark. Code Ann. § 11-9-\n102(4)(A)(i). This, therefore, requires that a claimant establish by a \npreponderance of the evidence: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external \nphysical harm to the body which required medical services or resulted in \ndisability or death; (3) medical evidence supported by objective findings \nestablishing an injury as defined in Ark. Code Ann. §11-9-102(16) and; (4) \nthat the injury was caused by a specific incident identifiable by time and \nplace of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i). \n\nGLASS – H005827 & H106715   6 \n \nHowever, a compensable injury may also arise as a compensable, \nor natural, consequence of a prior specific incident injury. If an injury is \ncompensable, then every natural consequence of that injury is also \ncompensable. Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d \n91 (2008). The basic test is whether there is a causal connection between \nthe two episodes. Walker v. Fresenius Med. Care Holding, Inc., 2014 Ark. \nApp. 322, 436 S.W.3d 164 (2014). \nOn September 18, 2024, the claimant’s case manager, Heather \nMontgomery, wrote to the claimant’s treating physician, Adam Smith, M.D. \nIn her letter, Ms. Montgomery posed four questions, answered by Dr. \nSmith: \n1. In your opinion, within a reasonable degree of medical \ncertainty, is the need for the proposed IM hip nailing for the non-displaced \nfracture, greater than 51% related to the work injury of 08/05/20? \nNo \n2. Can you state within a reasonable degree of medical \ncertainty; the reported left hip symptoms and pathology are the direct \nresult of the 08/05/20 work injury or to pre-existing conditions? Please \nprovide acute objective findings. \nNo \n3. If the need for the proposed left hip surgery is greater than \n51% related to the work injury of 08/05/20, please provide details about \n\nGLASS – H005827 & H106715   7 \n \nthe post recovery process, release to full duty work, and anticipated date \nof maximum medical improvement. \nN/A \n4. If the 09/17/24 appointment and proposed treatment are \nunrelated to the work injury of 08/05/20, please state unrelated to the work \ninjury of 08/05/20 and note with your billing department future treatment \non the left hip should be filed under Mr. Glass’ private health insurance \nplan. \nunrelated \nBeyond the claimant’s own self-serving testimony that his hip \nsurgery resulted from overuse due to his right hip injury, the claimant \nintroduced no evidence to support that contention, no surgical reports or \nmedical opinions, nor did he depose his treating physician. In fact, the \nclaimant has not provided any medical proof to support his contention that \nthe issues with his left hip were the result of overuse of his right hip.            \nIn ruling that the claimant met his burden of proving his left hip \nsurgery was a compensable consequence of his injury, the ALJ opined \nthat he “assign[ed] little evidentiary value” to Dr. Smith’s responses to the \nSeptember 2024 letter, because he “answered the questions as they were \nwritten.”   \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \n\nGLASS – H005827 & H106715   8 \n \nsoundness and probative force. Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness. Id. However, \nthe Commission has the authority to accept or reject medical opinions. \nWilliams v. Ark. Dept. of Community Corrections, 2016 Ark. App. 427, 502 \nS.W. 3d 530 (2016). Furthermore, it is the Commission's duty to use its \nexperience and expertise in translating the testimony of medical experts \ninto findings of fact and to draw inferences when testimony is open to \nmore than a single interpretation. Id. \nHere, the ALJ arbitrarily disregarded the opinion of Dr. Smith in \nfavor of the unsubstantiated and self-serving testimony of the claimant and \nhis wife with no medical proof on which to base his findings. There is \nnothing in our Rules to suggest that concise answers, in writing, to direct \ninquiries by a case manager is somehow prohibited or carries less \nevidentiary weight. In fact, this has become the standard for obtaining \nsimple medical opinions from physicians across a large number of the \ncases that come before us. Accepting the ALJ’s ruling on this sets an \nunviable and costly standard that would require respondents to depose \nevery doctor in every case where any medical treatment is controverted. \nThis is unsustainable. \nSimply, in the matter at hand, the claimant failed to meet his burden \nof proof. In fact, he took no steps to establish a causal connection through \n\nGLASS – H005827 & H106715   9 \n \nany medical exhibits. The ALJ, in searching for a reason to find in favor of \nthe claimant, disregarded the most clear and only medical evidence \navailable and did so without reason, and his findings should be reversed. \nWhen a claimant sustains an injury not scheduled in Ark. Code Ann. \n§ 11-9-521, permanent disability benefits are controlled by Ark. Code Ann. \n§ 11-9-522(b)(1), which states:  \nIn considering claims for permanent partial \ndisability benefits in excess of the employee's \npercentage of permanent physical \nimpairment, the Workers' Compensation \nCommission may take into account, in \naddition to the percentage of permanent \nphysical impairment, such factors as the \nemployee's age, education, work experience, \nand other matters reasonably expected to \naffect his or her future earning capacity. \n \nTherefore, when a claimant has been assigned an anatomical \nimpairment rating to the body as a whole, the Commission has the \nauthority to increase the disability rating and find a claimant permanently \ndisabled based upon wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 \nArk. App. 228, 201 S.W.3d 449 (2005).  \nThe wage-loss factor is the extent to which a compensable injury \nhas affected the claimant's ability to earn a livelihood. Enterprise Products \nCompany v. Leach, 2009 Ark. App. 148, 316 S.W.3d 253 (2009). When \ndetermining wage-loss disability, the Commission may take into account, \nin addition to the percentage of permanent physical impairment, such \nfactors as the employee’s age, education, work experience, and other \n\nGLASS – H005827 & H106715   10 \n \nmatters reasonably expected to affect his or her future earning capacity.  \nArk. Code Ann. §11-9-522(b)(1).  \nOther factors may include but are not limited to motivation to return \nto work, post-injury earnings, credibility, and demeanor. Curry v. Franklin \nElectric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). A lack of interest or \nnegative attitude in pursuing employment impedes the assessment of the \nclaimant's loss of earning capacity. Logan County v. McDonald, 90 Ark. \nApp. 409, 206 S.W.3d 258 (2005).  \nThe Commission may use its own superior knowledge of industrial \ndemands, limitations, and requirements in conjunction with the evidence to \ndetermine wage-loss disability. Taggart v. Mid America Packaging, 2009 \nArk. App. 335, 308 S.W.3d 643 (2009). \nVictor Vargas, M.D. released the claimant at MMI with no \nimpairment rating on April 28, 2022. Dr. Smith released the claimant at \nMMI with a fifteen percent (15%) impairment rating for his right hip injury \non March 14, 2023. \nThe claimant has a bachelor’s degree in psychology and a master’s \ndegree in clinical psychology and has worked as a counselor and therapist \nwith children and adults. Despite having numerous other skills including \ntax preparation, prior teaching experience, director of a charter school, \nand experience in insurance sales, the claimant reluctantly agreed to \nparticipate in vocational rehabilitation after initially refusing. At the time of \n\nGLASS – H005827 & H106715   11 \n \nthe hearing, he had earned $1500 preparing tax returns and anticipated \nearning additional income preparing tax returns.  \nMs. Keondra Hampton and Ms. Cecilia Bruson, identified available \njobs in the sedentary classification on the claimant’s behalf, including \nremote work which offers greater pay than the claimant previously earned. \nDespite this information, the claimant has not applied for work, looked for \nwork anywhere, or made any effort whatsoever to return to the workforce.  \nIn addition, he has not even considered working remotely. Ms. Bruson \ntestified that she found jobs for the claimant as recently as a week prior to \nthe hearing.  \nThe claimant is able to travel since his injuries and can drive \nhimself. He is not home bound and has no work restrictions. He is capable \nof using a computer and smart phone. Simply put, the claimant has no \ndesire to return to work.  \nThe claimant has had ample opportunity to work with Ms. Hampton \nand Ms. Brunson who have identified jobs within his restrictions that pay \nthe same or more than he was earning with the respondent employer. The \nclaimant has no incentive to return to the work force and has failed and \nrefused to even look for a job or return to work. \nThe claimant should not be rewarded with a wage loss award when \nhe has no work restrictions and has made no effort whatsoever to return to \nthe work force. Because the claimant has made no effort and has no \n\nGLASS – H005827 & H106715   12 \n \ninterest in returning to the workforce, he is not entitled to wage-loss \nbenefits. \nAccordingly, for the reasons set forth above, I must dissent. \n                                                                   \n                                                        _______________________________ \n                                                        MICHAEL R. MAYTON, Commissioner","textLength":16252,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. H005827 & H106715 EARL GLASS, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["back","hip","knee","shoulder","fracture"],"fetchedAt":"2026-05-19T22:29:43.908Z"},{"id":"full_commission-H501062-2026-01-15","awccNumber":"H501062","decisionDate":"2026-01-15","decisionYear":2026,"opinionType":"full_commission","claimantName":"Camron Newton","employerName":"Maverick Transportation, LLC","title":"NEWTON VS. MAVERICK TRANSPORTATION, LLC AWCC# H501062 January 15, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Newton_Camron_H501062_20260115.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Newton_Camron_H501062_20260115.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H501062 \n \nCAMRON NEWTON, EMPLOYEE                                                CLAIMANT \n \nMAVERICK TRANSPORTATION, LLC, \nSELF-INSURED EMPLOYER                                          RESPONDENT \n \n \nCORVEL CORPORATION, TPA                                           RESPONDENT \n \n \nOPINION FILED JANUARY 15, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE DANIEL E. WREN, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE DAVID C. JONES, Attorney \nat Law, Little Rock, Arkansas. \n \n \nORDER \n \n  Presently before the Full Commission is the Joint Motion to \nRemand filed by the claimant and the respondents.  \n  Both parties in the above captioned action request this appeal \nbe continued and remanded for the purpose of considering a joint petition \nsettlement.   \n  After consideration of the Joint Motion, and all other matters \nproperly before the Commission, the Commission finds that the Joint Motion \nshould be and is hereby granted and this matter is remanded to the \n\nNewton-H501062                             2 \n \nadministrative law judge for the purpose of considering a joint petition \nsettlement.  \n  IT IS SO ORDERED. \n    ___________________________________                                                                  \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ____________________________________          \n    M. SCOTT WILLHITE, Commissioner \n \n    _____________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1631,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H501062 CAMRON NEWTON, EMPLOYEE CLAIMANT MAVERICK TRANSPORTATION, LLC, SELF-INSURED EMPLOYER RESPONDENT CORVEL CORPORATION, TPA RESPONDENT OPINION FILED JANUARY 15, 2026 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claima...","outcome":"remanded","outcomeKeywords":["remanded:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.914Z"},{"id":"alj-H503974-2026-01-15","awccNumber":"H503974","decisionDate":"2026-01-15","decisionYear":2026,"opinionType":"alj","claimantName":"Trevon Boyd","employerName":"City Of Fayetteville","title":"BOYD VS. CITY OF FAYETTEVILLE AWCC# H503974 January 15, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BOYD_TREVON_H503974_20260115.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOYD_TREVON_H503974_20260115.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H503974 \n \nTREVON BOYD, Employee CLAIMANT \n \nCITY OF FAYETTEVILLE, Employer RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 15, 2026 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant unrepresented and appearing pro se. \n \nRespondents represented by MARY K. EDWARDS, Attorney at Law, North Little Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On December  10,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at \nSpringdale,  Arkansas.      A  pre-hearing  conference  was  conducted  on September  24, \n2025,  and  a pre-hearing  order  was  filed on that  same  date. A  copy  of  the  Pre-hearing \nOrder  has  been  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record \nwithout objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.    The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  the \nwithin claim. \n2.    The  employee/employer/carrier  relationship  existed  among  the  parties  on \nJune 21, 2025. \n\nBoyd – H503974 \n \n-2- \nAt the time of the hearing, the parties agreed to stipulate that claimant earned an \naverage   weekly   wage   of   $1,575.74,   which   would   entitle   him   to   the   maximum \ncompensation  rates  of  $903.00  for  total  disability  benefits  and  $677.00  for  permanent \npartial disability benefits. \nThe issues to be litigated at the forthcoming hearing are as follows: \n1. Compensability of injury to left Achilles on June 21, 2025.  \n2. Related medical. \n3. Temporary total disability benefits. \nThe  claimant  contends  he  suffered  a  compensable  injury  to  his  left  Achilles  on \nJune 21, 2025. He requests payment of medical and temporary total disability benefits. \nThe respondents contend “that claimant cannot prove by a preponderance of the \nevidence that he sustained a compensable injury to his left ankle. Specifically, claimant \nwas not performing employment services at the time of the alleged injury. On June 21, \n2025,  claimant  was  participating  in  the  Battle  of  the  Badges  basketball  tournament, \nwhen  he  allegedly  injured  his  left  ankle.  Respondents  contend  that  he  was  not \nperforming his job duties at the time the injury occurred, that he was not clocked in, and \nthat he was not required to be at the tournament (strictly voluntary basis).” \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n\nBoyd – H503974 \n \n-3- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on September 24, 2025, and contained in a pre-hearing order filed that same \ndate are hereby accepted as fact. \n 2. The  parties’  stipulation  that  claimant  earned  an  average  weekly  wage  of \n$1,575.74, which would entitle him to the maximum compensation rates of $903.00 for \ntotal  disability  and  $677.00  for  permanent  partial  disability  benefits  is  also  hereby \naccepted as fact.  \n 3.  Claimant has  failed  to meet his  burden of  proving by a preponderance  of  the \nevidence that he suffered a compensable injury to his left Achilles on June 21, 2025. \n \nFACTUAL BACKGROUND \n Claimant began working for respondent as a patrol officer on February 24, 2020. \nIn  August  2023,  claimant  became  a  School  Resource  Officer.  He  typically  worked \nMonday-Friday from 8:00 am until 4:00 pm. There were also times that he worked after \nschool  for  school  events  and  was  paid  for  that  time.  He  also  worked  traffic  for \nRazorback football games and was compensated for that time.  \n On  June  21,  2025,  a  Saturday,  claimant testified  that  he was  participating  in  a \ncharity basketball game and while attempting to steal the ball from another player tore \nhis left Achilles. Claimant testified that he underwent surgery to repair the torn Achilles \non July 29, 2025. He returned to work for respondent after the surgery, performing light \nduty work. \n\nBoyd – H503974 \n \n-4- \n Claimant has filed this claim contending that he suffered a compensable injury in \nthe  form  of  a  torn  left  Achilles  on  June  21,  2025.  He  requests  payment  of  medical \nbenefits and temporary total disability benefits for time off of work. \n \nADJUDICATION \n Claimant contends that he suffered a compensable injury in the form of a torn left \nAchilles while participating in a charity basketball game on June 21, 2025. Claimant’s \nclaim is for a specific injury identifiable by time and place of occurrence.  \nIn order to prove a compensable injury as the result of a specific incident that is \nidentifiable   by   time   and   place   of   occurrence,   a   claimant   must   establish   by   a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630.  \nAfter my review of the evidence in this case impartially, without giving the benefit \nof the doubt to either party, I find that claimant has failed to meet his burden of proving a \ncompensable injury. \n Much of the testimony at the hearing related to whether claimant was performing \nemployment  services  while  participating  in  the  charity  basketball  game  on  June  21, \n2025.  Compensable  injuries  do  not  include  injuries  which  occur  when  employment \nservices   are   not   being   performed.   A.C.A. §11-9-102(4)(B)(iii).   An   employee   is \n\nBoyd – H503974 \n \n-5- \nperforming  employment  services  when  he  or  she  is  doing  something  that  is  generally \nrequired by his or her employer. Continental Construction Company v. Nabors, 215 Ark. \nApp. 60, 454 S.W.3d 762.  \n In  this  particular  case,  even  if  I  were  to  find  that  claimant  was  performing \nemployment  services  at  the  time  he  was  playing  in  a  charity  basketball  game,  I  would \nhave  to  find  that  claimant  has  not  satisfied  the  remaining  elements  of  compensability. \nRespondent  has  not stipulated  to  a  torn  Achilles.  Thus,  claimant  has  the  burden  of \nsatisfying all of the elements of compensability. One of those elements is that claimant \noffer  medical  evidence  supported  by  objective  findings  establishing  the  injury.  Here, \nthere  is  no  medical  evidence  in  the  record.  At  the  hearing,  claimant  offered  a  medical \nreport, but respondent objected to the admission of that report on the grounds that the \nmedical  record  had  not  been  provided  to  respondent  at  least  seven  days  prior  to  the \nhearing. As stated in the prehearing order, filed on September 24, 2025, no documents \nare to be allowed into evidence unless exchanged by the parties seven days prior to the \nhearing of the case on the merit, without leave of the Commission and upon a showing \nof  good  cause.  Claimant  acknowledged  that  he  did  not  provide  a  copy  of  the  medical \nreport  to  respondent  seven  days  prior  to  the  hearing  and  no  good  cause  was  shown. \nAccordingly, the medical report was not admitted into evidence.  \n Absent medical evidence  supported by  objective  findings,  claimant  cannot meet \nhis  burden  of  proof  for  a  compensable  injury  even  if  it  were  to  be  determined  that  he \nwas performing employment services at the charity basketball game. \n Unfortunately, given claimant’s acknowledgement that he did not exchange his \nmedical  records  with  respondent  seven  days  prior  to  the  hearing,  there  is  no  medical \n\nBoyd – H503974 \n \n-6- \nevidence  of  record  and  claimant  cannot  meet  his  burden  of  proof. Although  I  find \nclaimant  to  be  a  credible  witness  and  believe  his  testimony  that  he  suffered  a  torn \nAchilles on June 21, 2025, the Arkansas Workers’ Compensation Law requires that all \nelements  of  compensability  be  proven.  One  of  those  elements  is  medical  evidence, \nsupported by objective findings, establishing the injury. Unfortunately, by not submitting \nthis   medical   evidence,   claimant   cannot   satisfy   this   element   of   compensability. \nTherefore, I must unfortunately find that claimant has failed to meet his burden of proof. \n \nORDER \n Claimant  has  failed  to  meet  his  burden  of  proving  by  a  preponderance  of  the \nevidence that he suffered a compensable injury to his left Achilles. Therefore, his claim \nfor  compensation benefits  is  hereby  denied and  dismissed. Respondents  are  liable  for \npayment of the court reporter’s charges for preparation of the hearing transcript in the \namount of $353.50. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":9490,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H503974 TREVON BOYD, Employee CLAIMANT CITY OF FAYETTEVILLE, Employer RESPONDENT ARKANSAS MUNICIPAL LEAGUE, Carrier RESPONDENT OPINION FILED JANUARY 15, 2026 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:32:57.366Z"},{"id":"alj-H504304-2026-01-14","awccNumber":"H504304","decisionDate":"2026-01-14","decisionYear":2026,"opinionType":"alj","claimantName":"Gary Clause","employerName":"Alessi Keyes Construction Co","title":"CLAUSE VS. ALESSI KEYES CONSTRUCTION CO. AWCC# H504304 January 14, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CLAUSE_GARY_H504304_20260114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CLAUSE_GARY_H504304_20260114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H504304 \n \nGARY CLAUSE, EMPLOYEE         CLAIMANT \n \nALESSI KEYES CONSTRUCTION CO., EMPLOYER                    RESPONDENT \n \nUNITED FIRE & CASUALTY CO., CARRIER                RESPONDENT \n \n \nOPINION FILED 14 JANUARY 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 7 January 2026 in Little Rock, Arkansas. \n \nThe pro se claimant failed to appear. \n \nWorley, Wood & Parrish, P.A., Ms. Melissa Wood, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 7 January 2026. This case relates to an alleged workplace injury \noccurring on 4 June 2025. The record from the hearing consists of the transcript; \nRespondents’ Exhibit No 1, which consisted of an index page and ten pages of documents \nand pleadings in support of their motion; and Commission’s Exhibit No 1, two pages that \nincluded a Form AR-C filed by the claimant and a Postal Service delivery receipt from \nCommission correspondence with the claimant.  \nThe record showed that the claimant filed a Form AR-C on 11 July 2025 alleging an \ninjury on 4 June 2025. On 15 July 2025, the respondents filed a First Report of Injury \nindicating an alleged hernia injury that had been reported to them on 14 July 2025. They \nsubsequently filed a Form AR-2 indicating that the claim was being denied.  \n\nG. CLAUSE- H504304 \n2 \n \nThe claimant retained an attorney at some point, but on 17 September 2025, the \nFull Commission entered an Order granting the attorney’s request to withdraw from the \nmatter. The claimant then submitted a hearing request on 19 September 2025. \nThen, on 29 October 2025, the respondents requested that this claim be dismissed \nfor the claimant’s failure to prosecute his claim under the Commission Rule at 11 C.A.R. § \n25-110(d). They stated that the claimant had failed to participate in their efforts to conduct \ndiscovery, including his refusal to submit signed releases for medical records.  \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of a hearing on the \nrespondents’ motion was sent in the same manner. The record does not reflect any \nresponsive filings from the claimant; and he did not attend the hearing to object to the \ndismissal of this claim. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim is dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 7 January 2026 and presented their motion. As argued \nby the respondents at the hearing, 11 C.A.R. § 25-110(d) provides for a dismissal for failure \nto prosecute an action upon application by either party and reasonable notice. As noted \n\nG. CLAUSE- H504304 \n3 \n \nabove, notice of the respondents’ motion and notice of the scheduling of the hearing was \nprovided to the claimant. \nThe respondents argue that the claimant has failed to cooperate in their attempts to \nconduct discovery that is relevant and necessary in the prosecution of this claim. No \nobjection was filed to the respondents’ motion to dismiss this claim. Further, the claimant \ndid not appear at the hearing to object to the dismissal of his claim. Based on the evidence \npresented, a dismissal without prejudice is appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4131,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H504304 GARY CLAUSE, EMPLOYEE CLAIMANT ALESSI KEYES CONSTRUCTION CO., EMPLOYER RESPONDENT UNITED FIRE & CASUALTY CO., CARRIER RESPONDENT OPINION FILED 14 JANUARY 2026 Heard before Arkansas Workers’ Compensation Commission (“the Commission”) Administrativ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2","denied:1"],"injuryKeywords":["hernia"],"fetchedAt":"2026-05-19T22:32:48.934Z"},{"id":"alj-H308265-2026-01-14","awccNumber":"H308265","decisionDate":"2026-01-14","decisionYear":2026,"opinionType":"alj","claimantName":"David Daniels","employerName":"Tyson Poultry, Inc","title":"DANIELS VS. TYSON POULTRY, INC. AWCC# H308265 January 14, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DANIELS_DAVID_H308265_20260114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DANIELS_DAVID_H308265_20260114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H308265 \n \nDAVID L. DANIELS, EMPLOYEE        CLAIMANT \n \nTYSON POULTRY, INC., SELF-INSURED EMPLOYER                    RESPONDENT \n \nTYNET CORP., TPA                   RESPONDENT \n  \n \n \nOPINION FILED 14 JANUARY 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 12 November 2025 in Little Rock, Arkansas. \n \nThe pro se claimant failed to appear. \n \nThe Roberts Law Firm, Mr. J. Matthew Mauldin, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 12 November 2025. This case relates to an alleged workplace injury \noccurring on 23 August 2023. The record of the hearing consists of the transcript; \nRespondents’ Exhibit No 1, which consisted of six pages of documents and pleadings in \nsupport of their motion; and Commission’s Exhibit No 1, which consisted of five pages of \nclaim-related documents, including two Postal Service delivery receipts from Commission \ncorrespondence with the claimant.  \nOn 22 December 2023, the claimant filed a Form AR-C relating to this claim. A \nprehearing telephone conference was eventually held on 3 December 2024 \nThe respondents later requested that this claim be dismissed under Commission \nRule 099.13 (now codified at 11 C.A.R. § 25-110(d)) and/or Ark. Code Ann. § 11-9-702. They \nargued that the claimant failed to participate in a prehearing telephone conference \nscheduled for 17 September 2024. A conference was subsequently held on 3 December 2024, \n\nD. DANIELS- H308265 \n2 \n \nand the claim was returned to the Commission’s General Files at that time. Then, on 19 \nSeptember 2025, the respondents moved for a dismissal for want of prosecution. They \nargued that the claimant had not taken any action on his claim and that no hearing had \nbeen set on any issue ripe for litigation. \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of a hearing on the \nrespondents’ motion was sent in the same manner. Delivery receipts from the Postal \nService show that the claimant accepted those mailings. He failed, however, to attend the \nhearing or to submit an objection to the respondents’ motion for a dismissal. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim is dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 12 November 2025 and presented their motion. As \nargued by the respondents at the hearing, Commission Rule 099.13 (now 11 C.A.R. § 25-\n110(d)) provides for a dismissal for failure to prosecute an action upon application by either \nparty and reasonable notice. The claimant did not file a response to the motion or appear at \nthe hearing to argue against the dismissal of his claim.  \n\nD. DANIELS- H308265 \n3 \n \nThe record does not indicate any action being taken by the claimant after the claim \nwas returned to General Files on 4 December 2024. Likewise, no objection was filed to the \nrespondents’ motion to dismiss this claim. Further, the claimant did not appear at the \nhearing to object to the dismissal of his claim. Based on the evidence presented, a dismissal \nwithout prejudice is appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4049,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H308265 DAVID L. DANIELS, EMPLOYEE CLAIMANT TYSON POULTRY, INC., SELF-INSURED EMPLOYER RESPONDENT TYNET CORP., TPA RESPONDENT OPINION FILED 14 JANUARY 2026 Heard before Arkansas Workers’ Compensation Commission (“the Commission”) Administrative Law Judge...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:32:51.004Z"},{"id":"alj-H406233-2026-01-14","awccNumber":"H406233","decisionDate":"2026-01-14","decisionYear":2026,"opinionType":"alj","claimantName":"Raymondo Garcia","employerName":"Poinsett Rice & Grain, Inc","title":"GARCIA VS. POINSETT RICE & GRAIN, INC. AWCC# H406233 January 14, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Garcia_Raymondo_Gomez_H406233_20260114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Garcia_Raymondo_Gomez_H406233_20260114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H406233 \n \nRAYMONDO GOMEZ GARCIA, \nEMPLOYEE                                                                                                              CLAIMANT \n \nPOINSETT RICE & GRAIN, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nAGRI GROUP-COMP SI FUND, \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED JANUARY 14, 2026 \n \nHearing conducted on Friday, November 14, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant is Pro Se, of Newport, Arkansas.  \n \nThe Respondents  were represented by Mr. Guy  Alton  Wade,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non July 24, 2025.  A hearing on the motion was conducted on November 14, 2025, in Jonesboro, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a laborer. The date for Claimant’s \nalleged injury was on September 16, 2024. This incident was reported to the Respondent/Employer \non the   same   day. Admitted   into   evidence   was Respondents’  Exhibit 1,   pleadings,   and \ncorrespondence, consisting of 27 pages, and Commission Ex. 1, pleadings, correspondence, and \nU.S. Mail return receipts, consisting of 8 pages, as discussed infra. \n\nGARCIA, AWCC No. H406233 \n \n2 \n \nThe  record  reflects  on September 25, 2024,  a  Form  AR-1  purporting  that Claimant  was \nunloading a grain bin when his left hand became trapped and then broken inside an auger. Also on \nSeptember  25,  2024,  a  Form  AR-2  was  filed  denying  compensability  based  on  a  positive  post-\naccident  drug  screening.  On  November  19,  2024,  a  Form  AR-C  was  filed by  Claimants  then-\nattorney, Mark Peoples, purporting that Claimant sustained injuries to his left hand and fingers. \nOn January 21, 2025, Claimant’s then-attorney filed a motion to withdraw as Claimant’s attorney. \nThe Full Commission granted Mr. People’s motion on February 5, 2025. On February 14, 2025, \nRespondents  filed  a  motion  to  dismiss  due  to  a  lack  of  prosecution,  specifically  not  complying \nwith  discovery. On  March  17,  2025,  Claimant  objected  to  the  dismissal  of  his  claim  and  the \ndismissal  motion  was  held  in  abeyance. On  March  21,  2025,  prehearing  questionnaires  and \npreliminary notices were sent out to the parties. Eventually a prehearing telephone conference was \nscheduled for June 10, 2025, and the Claimant did not make himself available for the pre-scheduled \nhearing. The file was sent to general files.  \nRespondents renewed their Motion to Dismiss due to Claimant’s failure to prosecute his \nclaim on July 24, 2025. The Claimant was sent, on August 5, 2025, notice of the Motion to Dismiss, \nvia certified  and  regular  U.S.  Mail,  to  his last  known  address.  The  certified motion notice  was \nclaimed  by  Claimant as  noted on  the August 8,  2025,  return  receipt. This  notice was  also  sent \nregular U.S. Mail and did not return to the Commission. Despite this, the Claimant did not respond \nto  the  Motion,  in  writing,  as  required. Thus,  in  accordance  with  applicable  Arkansas  law,  the \nClaimant was mailed due and proper legal notice of Respondents’ Motion to Dismiss hearing date \nat her current address of record via the United States Postal Service (USPS), First Class Certified \nMail,  Return  Receipt  Requested,  and  regular  First-Class  Mail,  on September 10,  2025.  The \ncertified notice was claimed as noted by the September 22, 2025, return receipt. The hearing notice \n\nGARCIA, AWCC No. H406233 \n \n3 \n \nsent regular First-Class was not returned to the Commission. The hearing took place on November \n14, 2025. And as mentioned before, the Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the November  14, \n2025, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \n\nGARCIA, AWCC No. H406233 \n \n4 \n \nnotice was claimed by Claimant, per the return postal notice bearing the September 22, 2025, date. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \nAR-C  on November  19,  2024.  Since  then,  he  has  failed  to participate  in  Prehearing  Telephone \nConference or appear at this Hearing.  Therefore, I do find by the preponderance of the evidence \nthat Claimant has failed to prosecute his claim. Thus, Respondents’ Motion to Dismiss should be \ngranted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ______________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6597,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H406233 RAYMONDO GOMEZ GARCIA, EMPLOYEE CLAIMANT POINSETT RICE & GRAIN, INC., EMPLOYER RESPONDENT AGRI GROUP-COMP SI FUND, CARRIER/TPA RESPONDENT OPINION FILED JANUARY 14, 2026 Hearing conducted on Friday, November 14, 2025, before the Arkansas Workers’ Compe...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:32:53.071Z"},{"id":"full_commission-H403830-2026-01-13","awccNumber":"H403830","decisionDate":"2026-01-13","decisionYear":2026,"opinionType":"full_commission","claimantName":"Caleb Tennis","employerName":"Conway Regional Medical Center","title":"TENNIS VS. CONWAY REGIONAL MEDICAL CENTER AWCC# H403830 January 13, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Tennis_Caleb_H403830_20260113.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Tennis_Caleb_H403830_20260113.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H403830 \n \nCALEB TENNIS, EMPLOYEE  CLAIMANT \n \nCONWAY REGIONAL MEDICAL CENTER, \nEMPLOYER RESPONDENT \n \nRISK MANAGEMENT RESOURCES,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED JANUARY 13, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed September 16, 2025.  In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2. That an employer/employee relationship existed on or about \nFebruary 6, 2023, when the claimant sustained a compensable \ninjury to his low back.  \n \n \n\n \nTENNIS - H403830  2\n  \n \n3. That at the time of the injury, the claimant was earning an \naverage weekly wage of $721.07, sufficient for a TTD rate of \n$481.00 and a PPD rate of $361.00.  \n \n4. The claim was accepted as a compensable medical only claim. \n \n5. That the claimant has failed to satisfy the required burden of \nproof by a preponderance of the credible evidence that he is \nentitled to a permanent partial disability rating (PPD) to the body \nas a whole.  \n \n6. That as a result of the above finding, the issue of attorney fees \nare moot. \n \n7. If not already paid, the respondents are ordered to pay for the \ncost of the transcript forthwith.  \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's September \n16, 2025 decision is supported by a preponderance of the credible \nevidence, correctly applies the law, and should be affirmed.  Specifically, \nwe find from a preponderance of the evidence that the findings of fact made \nby the Administrative Law Judge are correct and they are, therefore, \nadopted by the Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n \n\n \nTENNIS - H403830  3\n  \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n     \nCommissioner Willhite dissents.","textLength":2670,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H403830 CALEB TENNIS, EMPLOYEE CLAIMANT CONWAY REGIONAL MEDICAL CENTER, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 13, 2026 Upon review before the FULL COMMISSION in L...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:43.882Z"},{"id":"full_commission-H406771-2026-01-13","awccNumber":"H406771","decisionDate":"2026-01-13","decisionYear":2026,"opinionType":"full_commission","claimantName":"Calvin Walton","employerName":"City Of Stuttgart","title":"WALTON VS. CITY OF STUTTGART AWCC# H406771 & H500714January 13, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Walton_Calvin_H406771H500714_20260113.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Walton_Calvin_H406771H500714_20260113.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NOs. H406771 & H500714 \n \n \nCALVIN WALTON, EMPLOYEE    CLAIMANT \n \nCITY OF STUTTGART, SELF-INSURED,  \nEMPLOYER                                                                           RESPONDENT \n \n \nARKANSAS MUNICIPAL LEAGUE, TPA                              RESPONDENT \n \n \nOPINION FILED JANUARY 13, 2026 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE STEVEN R. McNEELY, \nAttorney at Law, Jacksonville, Arkansas. \n \nRespondents represented by the HONORABLE MARY K. EDWARDS, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed August 29, 2025. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Commission has jurisdiction over these claims.  \n \n2. The stipulations as set forth above are reasonable and \nare hereby accepted.  \n \n\n \nWalton- H406771 & H500714 2  \n \n \n3. The claimant failed to prove by a preponderance of the \nevidence that he suffered a compensable neck injury \non 26 January 2024 (Claim No H406771). \n \n4. The preponderance of the evidence establishes that \nthe claimant earned an average weekly wage of \n$806.12 at the time of his accepted right shoulder  \ninjury on Claim No H406771, which entitled him to a \nweekly TTD benefit of $538.  \n \n5. The claimant failed to prove by a preponderance of the \nevidence that he was entitled to additional TTD benefits \nfrom 13 January 2025 to 9 May 2025, or any period \ntherein, on Claim No H406771.  \n \n6. The preponderance of the evidence does not establish \nthat the respondents underpaid the claimant on TTD \nbenefits on Claim No H406771.  \n \n7. The claimant failed to prove by a preponderance of the \nevidence that he is entitled to additional medical \ntreatment for his lower back injury on Claim No \nH500714.  \n \n8. The claimant failed to prove by a preponderance of the \nevidence that he is entitled to an IME related to his \nstipulated compensable right shoulder injury on Claim \nNo H406771.  \n \n9. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to an attorney’s fee. \n \n We have carefully conducted a de novo review of the entire record \nherein, and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \n\n \nWalton- H406771 & H500714 3  \n \n \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the August 29, 2025 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite concurs and dissents. \n \nCONCURRING AND DISSENTING OPINION      \n The  Claimant  appeals  an  Administrative  Law  Judge  (hereinafter \nreferred  to  as  “ALJ”)  opinion  that  the  Claimant  failed  to  prove  by  a \npreponderance  of  the  evidence  that  he  is  entitled  to  additional  medical \ntreatment for his lower back injury on Claim No. H500714, that the Claimant \nis entitled to temporary total disability from January 13, 2025, through May 9, \n2025, that the preponderance of the evidence establishes that the Claimant \nearned an average weekly wage of $806.12 at the time of his accepted right \nshoulder injury on Claim No. H406771, which entitled the Claimant to a \n\n \nWalton- H406771 & H500714 4  \n \n \nweekly temporary total disability benefit of $538, and that the Claimant failed \nto  prove  by  a  preponderance  of  the  evidence  that  he  is  entitled  to  an \nindependent  medical  evaluation  for  his  stipulated  compensable  right \nshoulder injury on Claim No. H406771. After conducting a thorough review of \nthe record, I would concur in part and dissent in part with the majority.  \n1. The Claimant has proved by a preponderance of the evidence that he \nis entitled to additional medical treatment for his lower back injury on \nClaim No. H500714.  \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a). The claimant \nbears  the  burden  of  proving  that  she  is  entitled  to  additional  medical \ntreatment. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 \n(1999).  What constitutes reasonable and necessary medical treatment is a \nquestion of fact for the Commission.  White Consolidated Indus. v. Galloway, \n74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut Corp. v. Jones, 73 Ark. \nApp. 158, 40 S.W.3d 333 (2001).  \nThe Arkansas Court of Appeals has held a claimant may be entitled to \nadditional medical treatment even after the healing period has ended, if said \ntreatment is geared toward management of the injury.  See Patchell v. Wal-\nMart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31  (2004); Artex \nHydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  Such \n\n \nWalton- H406771 & H500714 5  \n \n \nservices can include those for the purpose of diagnosing the nature and \nextent of the compensable injury; reducing or alleviating symptoms resulting \nfrom the compensable injury; maintaining the level of healing achieved; or \npreventing further deterioration of the damage produced by the compensable \ninjury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); \nArtex, supra. \nIn  the  present  case,  Claimant  sustained  admittedly  compensable \ninjuries to the lumbar region of his spine. On December 13, 2024, Claimant \nwas initially diagnosed with a strain of his lumbar spine, prescribed pain \nmedication, and told to return to clinic in three months. Claimant returned to \nthe clinic on February 14, 2025, and treated by Dr. Seth Kleinbeck who \nperformed an x-ray on Claimant’s lumbar spine. This lumbar x-ray showed:  \n1. There  is  chronic  degenerative  narrowing  of \nthe L2-3 and L4-5 disc spaces.  \n2. There is grade 1 anterolisthesis of L4 on L5 \nwith  associated  disc  space  narrowing  and \nfacet joint arthropathy.  \n \nDr. Kleinbeck diagnoses the Claimant with lumbar radiculopathy and refers \nthe Claimant for an MRI and injections of his lumbar spine. On March 6, 2025, \nClaimant undergoes an MRI with Dr. Kleinbeck. This lumbar MRI showed:  \n1. Multilevel degenerative disc disease and facet \narthrosis   with   canal   and   foraminal \ncompromise as detailed above at each level.  \n\n \nWalton- H406771 & H500714 6  \n \n \n2. Canal narrowing is most significant across the \nL4-5 level with moderate to severe canal and \nrecess narrowing from listhesis/moderate to \nsevere facet arthrosis.  \n3. There is moderate to severe left canal and \nrecess  narrowing  at  the  L5-S1  level  from \nbulging and extrusion as above. There is also \nassociated foraminal narrowing as above. \nDr. Kleinbeck then writes in his medical report:  \nCall  patient  concerning  MRI  lumbar  spine:  He \ndoes have a few areas where it looks like he may \nbe having some nerve compression: Would refer \nhim over to Ortho Arkansas spine clinic, since he \nis already seeing Dr. Hussey at Ortho Arkansas.  \nThe Claimant suffered a compensable injury to the lumbar region of \nhis spine and remains within his healing period and is entitled to additional \nmedical treatment to diagnose whether Claimant has nerve compression in \nhis lumbar spine. Therefore, I dissent with the opinion of the ALJ and would \nrefer  Claimant  to  Ortho Arkansas  to  be  seen  by  Dr.  Hussey  for  further \ntreatment.  \n2. The Claimant has proved by a preponderance of the evidence that the \nClaimant earned an average weekly wage of $848.62 at the time of \nhis  accepted  right  shoulder  injury  on  Claim  No.  H406771,  which \nentitled him to a weekly temporary total disability benefit of $566. \nArkansas Code Annotated § 11-9-518 states that:  \n(a)(1) Compensation shall be computed on the \naverage weekly wage earned by the employee \nunder the contract of hire in force at the time of \nthe accident and in no case shall be computed on \nless than a full-time workweek in the employment.  \n...  \n\n \nWalton- H406771 & H500714 7  \n \n \n(b)  Overtime  earnings  are  to  be  added  to  the \nregular weekly wages and shall be computed by \ndividing the overtime earnings by the number of \nweeks  worked  by  the  employee  in  the  same \nemployment under the contract of hire in force at \nthe time of the accident, not to exceed a period of \nfifty-two (52) weeks preceding the accident.  \nThe  record  is  absent  of  the  Claimant’s  contract  of  hire  and  the \nClaimant’s wage records are the only evidence provided as to the Claimant’s \nearnings. The wage records show that as of January 12, 2024, Claimant was \nreceiving an hourly wage of $17.50 per hour. On January 26, 2024, Claimant \nsuffered a compensable right shoulder injury, therefore Claimant’s hourly \nwage at the time of the accident was $17.50 per hour. At a forty-hour work \nweek, Claimant would make $700 per week based on a $17.50 hourly wage.  \nWhere an employee had been promoted shortly before her accident, \nthe Workers’ Compensation Commission properly calculated her average \nweekly wage using employee’s hourly wage at the time of the accident plus \novertime for the previous year where, at the time of and after accident, she \nwas working extensive hours at that wage, despite occasionally performing \nother jobs at a lower wage. Cracker Barrel v. Lassiter, 87 Ark. App. 286, 190 \nS.W.3d 911 (2004). Prior to January 12, 2024, Claimant earned an overtime \nwage of $24.00 per hour based on an hourly wage of $16.00 per hour. At the \ntime of the January 26, 2024, work accident, Claimant wage records reflect \nan increase in his hourly wage of $17.50 per hour making Claimant’s new \n\n \nWalton- H406771 & H500714 8  \n \n \novertime wage $26.25. Based on the wage records in evidence, Claimant \nworked a total of 96.25 hours of overtime over a period of 17 weeks. 96.25 \nhours under the wage records at the time of the accident would equate to an \nadditional $2526.56 of wages to be added to the average weekly wage base \npay to be divided by 17 weeks. This equates to an additional $148.62 per \nweek.  \nTherefore, the Claimant’s average weekly wage should be calculated \nas $848.62 for Claimant’s accepted shoulder injury on Claim No. H406771, \nwhich entitles him to a weekly temporary total disability benefit of $566. Thus, \nthe Respondents underpaid the Claimant for his temporary total disability \nbenefits provided after his right shoulder surgery. \n On all other issues properly before this Commission, I concur with \nthe majority. \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":11269,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOs. H406771 & H500714 CALVIN WALTON, EMPLOYEE CLAIMANT CITY OF STUTTGART, SELF-INSURED, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, TPA RESPONDENT OPINION FILED JANUARY 13, 2026 Upon review before the FULL COMMISSION in Little...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["neck","shoulder","back","lumbar","strain"],"fetchedAt":"2026-05-19T22:29:43.894Z"},{"id":"alj-H208973-2026-01-13","awccNumber":"H208973","decisionDate":"2026-01-13","decisionYear":2026,"opinionType":"alj","claimantName":"Shawn Lockhart","employerName":"Express Services, Inc","title":"LOCKHART VS. EXPRESS SERVICES, INC. AWCC# H208973 January 13, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LOCKHART_SHAWN_H208973_20260113.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOCKHART_SHAWN_H208973_20260113.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H208973 \n \nSHAWN LOCKHART, EMPLOYEE        CLAIMANT \n \nEXPRESS SERVICES, INC., EMPLOYER                             RESPONDENT \n \nAIU INSURANCE CO./ SEDGWICK CLAIMS \nMANAGEMENT SERVICES, INC., CARRIER/TPA               RESPONDENT \n \n \nOPINION FILED 13 JANUARY 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 11 December 2025 in Pine Bluff, Arkansas. \n \nThe pro se claimant failed to appear. \n \nWorley, Wood & Parrish, P.A., Ms. Melissa Wood, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 11 December 2025. This case relates to an alleged workplace injury \noccurring on 15 December 2022. The record from the hearing consists of the transcript; \nRespondents’ Exhibit No 1, which consisted of an index page and eight pages of documents \nand pleadings in support of their motion; and Commission’s Exhibit No 1, three pages that \nincluded a Form AR-C filed by the claimant and two Postal Service delivery receipts from \nCommission correspondence with the claimant.  \nThe record showed that on 27 December 2022, the respondents filed a First Report of \nInjury indicating a low back sprain. They subsequently filed a Form AR-2 indicating that \nthey had accepted the claim and anticipated paying benefits. A Form AR-4 filed on 23 \nSeptember 2024 showed that medical and other expenses had been paid on the claim. Then, \non 14 April 2025, the claimant filed a Form AR-C, apparently seeking initial medical and \nindemnity benefits. \n\nS. LOCKHART- H208973 \n2 \n \nThe respondents later requested that this claim be dismissed under Commission \nRule 11 C.A.R. § 25-110(d) and/or Ark. Code Ann. § 11-9-702. They noted that in the six \nmonths preceding their motion, the claimant had not requested a hearing on an issue ripe \nfor litigation.  \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of a hearing on the \nrespondents’ motion was sent in the same manner. The record does not reflect any \nresponsive correspondence from the claimant; and he did not attend the hearing to object to \nthe dismissal of this claim. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim is dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 11 December 2025 and presented their motion. As \nargued by the respondents at the hearing, 11 C.A.R. § 25-110(d) provides for a dismissal for \nfailure to prosecute an action upon application by either party and reasonable notice. As \nnoted above, notice of the respondents’ motion and notice of the scheduling of the hearing \nwas provided to the claimant. \n\nS. LOCKHART- H208973 \n3 \n \nThe file reflects no action in this matter by the claimant since he filed his Form AR-\nC on 14 April 2025. Similarly, no objection was filed to the respondents’ motion to dismiss \nthis claim. Further, the claimant did not appear at the hearing to object to the dismissal of \nhis claim. Lastly, the record does not reflect a request for a hearing ever being filed in this \nclaim. \nThe claimant has taken no action on her claim since the filing of his Form AR-C. \nBased on the evidence presented, a dismissal without prejudice is appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4127,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H208973 SHAWN LOCKHART, EMPLOYEE CLAIMANT EXPRESS SERVICES, INC., EMPLOYER RESPONDENT AIU INSURANCE CO./ SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED 13 JANUARY 2026 Heard before Arkansas Workers’ Compensation Commissio...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":["back","sprain"],"fetchedAt":"2026-05-19T22:32:44.798Z"},{"id":"alj-H502450-2026-01-13","awccNumber":"H502450","decisionDate":"2026-01-13","decisionYear":2026,"opinionType":"alj","claimantName":"Jasmine Walker","employerName":"Lakes At Maumelle Health & Rehab","title":"WALKER VS. LAKES AT MAUMELLE HEALTH & REHAB AWCC# H502450 January 13, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WALKER_JASMINE_H502450_20260113.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALKER_JASMINE_H502450_20260113.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H502450 \n \nJASMINE WALKER, EMPLOYEE        CLAIMANT \n \nLAKES AT MAUMELLE HEALTH & REHAB., EMPLOYER                RESPONDENT \n \nASIT/CCMSI, CARRIER/TPA                  RESPONDENT \n  \n \n \nOPINION FILED 13 JANUARY 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 10 December 2025 in Little Rock, Arkansas. \n \nThe pro se claimant failed to appear. \n \nWorley, Wood & Parrish, P.A., Mr. Jarrod Parrish, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 10 December 2025. This case relates to an alleged workplace injury \noccurring on 13 March 2025. The record from the hearing consists of the transcript; \nRespondents’ Exhibit No 1, which consisted of an index page and eight pages of documents \nand pleadings in support of their motion; and Commission’s Exhibit No 1, three pages that \nincluded a Form AR-C filed by the claimant and two Postal Service delivery receipts from \nCommission correspondence with the claimant.  \nOn 14 April 2025, the claimant filed a Form AR-C seeking initial and additional \nbenefits. On 30 April 2025, the respondents filed a Form AR-2 indicating that they had \naccepted as compensable a medical-only claim for a left thigh strain. \nThe respondents later requested that this claim be dismissed under Commission \nRule 11 C.A.R. § 25-110(d) and/or Ark. Code Ann. § 11-9-702. They noted that in the six \n\nJ. WALKER- H502450 \n2 \n \nmonths preceding their motion, the claimant had not requested a hearing on an issue ripe \nfor litigation.  \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of a hearing on the \nrespondents’ motion was sent in the same manner. The record does not reflect any \nresponsive correspondence from the claimant; and she did not attend the hearing to object \nto the dismissal of this claim. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute her \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim is dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 10 December 2025 and presented their motion. As \nargued by the respondents at the hearing, 11 C.A.R. § 25-110(d) provides for a dismissal for \nfailure to prosecute an action upon application by either party and reasonable notice. As \nnoted above, the claimant was provided with notice of the respondents motion and notice of \nthe hearing on that motion.  \nThe claimant filed her Form AR-C on 13 March 2025. Since that time, no filings \nhave been made by the claimant. Similarly, no objection was filed to the respondents’ \nmotion to dismiss this claim. Further, the claimant did not appear at the hearing to object \n\nJ. WALKER- H502450 \n3 \n \nto the dismissal of his claim. Lastly, the record does not reflect a request for a hearing ever \nbeing filed in this claim.  \nThe claimant has taken no action on her claim since the filing of her Form AR-C. \nBased on the evidence presented, a dismissal without prejudice is appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3862,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H502450 JASMINE WALKER, EMPLOYEE CLAIMANT LAKES AT MAUMELLE HEALTH & REHAB., EMPLOYER RESPONDENT ASIT/CCMSI, CARRIER/TPA RESPONDENT OPINION FILED 13 JANUARY 2026 Heard before Arkansas Workers’ Compensation Commission (“the Commission”) Administrative Law...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":["strain"],"fetchedAt":"2026-05-19T22:32:46.867Z"},{"id":"alj-H301603-2026-01-12","awccNumber":"H301603","decisionDate":"2026-01-12","decisionYear":2026,"opinionType":"alj","claimantName":"Sherri Bass","employerName":"National Opinion Research Ctr","title":"BASS VS. NATIONAL OPINION RESEARCH CTR AWCC# H301603 January 12, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BASS_SHERRI_H301603_20260112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BASS_SHERRI_H301603_20260112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H301603 \n \nSHERRI BASS, Employee CLAIMANT \n \nNATIONAL OPINION RESEARCH CTR, Employer RESPONDENT \n \nTHE HARTFORD, Carrier RESPONDENT \n \n OPINION FILED JANUARY 12, 2026 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant unrepresented and appearing pro se. \n \nRespondents represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On October  14,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on March  31,  2025,  and  a  Pre-hearing \nOrder  was  filed  on March  31,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The   relationship   of   employee-employer-carrier   existed   between   the   parties on \nFebruary 21, 2023. \n 3. The claimant sustained compensable injuries to her bilateral elbows, bilateral wrists, \nand right trigger finger on or about February 21, 2023. \n 4. The claimant’s weekly compensation rates will be determined at a later date. \n By agreement of the parties the issues to litigate are limited to the following: \n\nBass – H301603 \n \n-2- \n 1. Whether Claimant is entitled to additional medical treatment for her compensable right \ntrigger  finger,  left  elbow,  and  left  wrist  injuries;  and  to  additional  medical  treatment  for  her \ncompensable right elbow injury in the form of surgery. \n 2.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  January  29, \n2024, to a date yet to be determined. \n 3. Respondents raise an independent intervening cause as cause for claimant’s need for \ntreatment under ACA § 11-9-102(F)(b)(III). \n 4. Claimant’s compensation rates. \n The claimant's contentions are as follows: \n“The   treatment   orders   were   never   full-filled.   Denied   claims. \nClaims they didn’t notify me were denied. They just told me ‘they \nwere working on it.’ Verbally abused by the treating physicians \nwith   false   diagnosis   and   accusations,   unlawfully.   Physically \nabused   by   the   treating   doctors,   for   not   giving   me   proper \nrestrictions  and  re-injuring  and  increasing  the  pain.  I  never  had  a \ncase manager. I had to contact The Hartford through Insta-Gram. I \nhave  real  injuries  that  have  yet  to  receive  any  treatment  at  all. \nVerbal  abuse  tactics  by  Randy  Murphy,  AAL  during  a  3  way  call \nwith the State Attorney. I’ve been begging for treatment for over a \nyear, for a 24 year physical career, that was ruined because of these \ninjuries.  Continued  injuries  for  being  returned  to  work  without \nrestrictions, over and over. There is a third claim for Cervical with \nan ER visit from 2022, that was denied after it was reported within \nthe  time  limits.  I  am  in  severe  pain  and  need  treatment.  I  can  no \nlonger afford to pay out of pocket. \n \nI  would  like  appreciate  restrictions  for  my  dx.  I  would  especially \nlike treatment. I would also prefer the Work Comp Commission to \nchoose where I receive my IME. I have requested IME’s, last year, \nso I could get treatment on my own, and be MMI’d. They refused \nto  do  this,  like  everything  else.  Mr.  Murphy  and  his  team  are \nbadgering  me  to  see  THEIR  out  of  town  doctor,  for  an  IME,  and \nwon’t agree to mediation or a Department Committee approved \nphysician. These records will also show discrimination. Also at the \nadvise of the State Work Comp Legal Department.” \n \n\nBass – H301603 \n \n-3- \n The respondents’ contentions are as follows: \n“Claimant has received all benefits to which she is entitled for her \ncompensable   work-related   injury.   Claimant   medical   records \nestablish  that  she  has  numerous  physical  and  emotional  problems \nwhich are unrelated to the compensable injury. The medical reports \nof  Dr.  Diemer,  Dr.  Benafield,  and  Dr.  Kelly  establish  that  her \npsychiatric    condition    is    a    non-work    related    independent, \nintervening cause which has caused and prolongs disability and her \nneeds for treatment. See Ark. Code Ann § 11-9-102(F)(b)(III).” \n \n The claimant in this matter is a 60-year-old female who sustained compensable injuries to \nher bilateral elbows, bilateral wrists, and right trigger finger on February 21, 2023, in a specific \nincident when she was lifting a bag from her car that the claimant has estimated to weigh 19 lbs. \nThe  claimant  has  asked  the  Commission  to  determine  if  she  is  entitled  to  additional  medical \ntreatment for her compensable right trigger finger, left elbow, and left wrist injuries and surgery \nfor her right elbow injury. \n The  claimant  was  originally  diagnosed  with  lateral  epicondylitis,  Enthesopathy  of  the \nright elbow, and Paresthesia of the upper limb by Ryan Huet, DO, at MedExpress in Bentonville, \nArkansas, on  February 28, 2023. The claimant has been treated or  evaluated by several doctors \nsince  that  time  including  Dr.  George  Diemel  and  Dr.  Robert  Benafield,  both  with  Ozark \nOrthopedics.  She  was  also  seen  by  Dr.  James  Kelly  with  Western  Arkansas  Plastic  and  Hand \nSurgery Center and Dr. Tyler Carllee with UAMS Health. Dr. Owen Kelly performed a medical \nrecords  review  and  gave  his  opinions  at  the  request  of  the  respondent  on  July  19,  2024.  The \nclaimant  also  underwent  an  independent  medical  evaluation  by  agreement  of  the  parties.  This \nadministrative law judge with the assistance of Susan Isaac, RN, with the Arkansas Workers’ \nCompensation  Commission,  selected  Dr.  Christopher  Arnold  to  perform  that independent \nmedical evaluation in December of 2024. The claimant has received an assortment of treatment \n\nBass – H301603 \n \n-4- \nand evaluations for her compensable injuries; including, but not limited to, MRIs of the elbows \nbilaterally,  MRI  of  the  cervical  spine,  upper  body  EMG  nerve  conduction  studies,  epidural \nsteroid shots, ultrasound guided ulnar nerve blocks, occupational therapy, physical therapy, and \nsplinting.  Both  Dr.  Owen  Kelly  and  Dr.  Arnold  provided  extensive  review  summaries  of  the \nmedical treatment and evaluation provided to the claimant. Dr. Owen Kelly’s report, authored at \nthe request of the respondent and dated July 19, 2024, is found at Respondents’ Exhibit 1, pages \n180-185. Dr. Arnold’s independent medical examination through the Commission is found at \nRespondents’ Exhibit 1, pages 187-197.  Both  of  the  summaries  provided  give  an  accurate  and \nfair assessment of the medical treatment and evaluation the claimant has received at least to the \nextent of the medical records provided into evidence by both parties prior to their reports.  \n At  the  hearing  in  this  matter  the  claimant  continued  to  complain  of  symptoms  and \ndifficulties that she has related to various doctors in the time period after her compensable injury. \nDr.  Benafield  saw  the  claimant  on  August  23,  2023.  Following  is  a  portion  of  that  medical \nreport: \nHPI \nThe  patient  seen  in  follow-up  for  her  right  ulnar  neuropathy  and \nright  trigger  digit.  She  began  the  interview  by  engaging  in  insults \nto me in my treatment of her MI ignoring of suppose it guidelines \nfrom  other  Administrative  bodies.  She  kept  reiterating  to  me  how \nshe could not do her job consisting of typing talking on the phone \nwriting down and carrying a 3 pound laptop. \n \n*** \nAssessment/Plan \nI  believe  the  patient  is  exhibiting  malingering  behavior  and  does \nnot  want  to  get  better  or  go  back  to  work.  At  the  end  of  the \ninteraction  I  advised  her  that  I  did  not  feel  that  she  and  I  were  a \ngood  fit  and  that  are  patient  doctor  relationship  was  irretrievable \nbroken and  I advised her to utilize the  change of  physician option \nwithin Arkansas Worker’s Comp. guidelines to find another hand \nsurgeon. As she was leaving she insulted my religious beliefs. \n\nBass – H301603 \n \n-5- \n \n1. Ulnar neuropathy of right arm \nG56.21: Lesion of ulnar nerve, right upper limb \n \n2. Trigger finger of right hand \nM65.351: Trigger finger, right little finger \n \n After the claimant was no longer able to see Dr. Benafield, she was seen by Dr. Diemel \non September 26, 2023. Following is a portion of that medical record: \nAssessment: \nMs. Bass returns to clinic today for a follow up. We discussed her \nclinical  course.  She  spent  the  first  20  minutes  of  the  visit  going \nthrough  a  list  of  grievances  against  Ozark   Orthopaedics,  Dr. \nBenafield, our therapy team and her WC carrier  as far as how she \nhas  been  treated.  She  states  she  is  frustrated  by  her  care  and  also \nnoted  that  she  has  attempted  to  get  in  touch  with  us  on  multiple \noccasions in attempts to  try to pursue different treatments. During \nthe  course  of  the  discussion,  she  outlined  different  dates  in  which \nshe had tried to reach out in hopes that she could get a “Toradol \nshot”.  She  did  state  that  somewhere  in  the  course  of  this  she \nultimately went to urgent care although it was unclear whether she \ndid in fact the get treatment she was looking for. She continued to \nreference  her  left  shoulder  and  arm  as  the  reason  for  the  need  to \ntreatment. Previous complaints had focused on the bilateral elbows \nwhich  is  what  initial  WC  injury  location  was  indicated  as  per  my \nunderstanding. Our previous workup had included cervical spine x-\nrays,  MRI  of  cervical  spine,  EMG/NCS  of  the  bilateral  upper \nextremities,   an   injection   for   the   right   elbow   to   assess   the \ncontribution of the ulnar nerve at the elbow, referral for orthopedic \nhand consultation and a considerable amount of therapy to address \nher bilateral upper extremity concerns. \n \nClinical  correspondence  from  8/18/2023  indicates  a  one  time, \napproval   from   her   WC   CM   regarding   evaluation   of   her   left \nshoulder and wrists which prompted today’s appointment. In the \ncorrespondence,  it  was  noted  that  approval  had  not  been  given \npreviously to evaluate these injuries. She states she was not aware \nof when this appointment was going to be made and had to look at \nthe  portal.  I  told  her  that  the  appointment  was  requested  by  her \nwork-comp  case  manager  which  she  states  she  has  not  spoken  to. \nShe   states   that   she   only   knew   about   this   appointment   after \nreferencing the portal. She stated that she didn’t know what she \nwas here but wanted to be sure to show up so “we couldn’t mark \n\nBass – H301603 \n \n-6- \nher  down  as  non-compliant.” I told her that I did not have any \nintention of making such a claim nor what “out to get her”. \n \nSo  summary  of  initial  discussion  regarding  this  appointment  from \nher  perspective  was  questioning  why  she  was  here  stating  she  did \nnot  request  this  appointment  be  made.  This  was  subsequently \nfollowed  by  the  aforementioned  outlining  of  grievances  she  had \nwith how her care had bene administered. She then went on to say \nthat  she  had  hired  an  attorney.  She  also  reached  out  to  the  Work-\nComp   State   Commission.   They   have   since   sent   her   up   an \nappointment  with  Dr.  Kelley,  and  she  has  an  appointment  on \nMonday, in Fort Smith to see him and establish care. \n \nNear the conclusion of the visit, she asked whether or not I would \nevaluate her left shoulder/arm. This was approximately 40 minutes \ninto her visit. Prior to the visit, I did review records indicating we \nhave done EMG/NCS of the upper extremities, cervical spine xrays \nand  cervical  spine  MRI.  We  have  also  sent  therapy  in  to  address \nher upper extremities complaints. Per her recollection, therapy did \nnot  do  anything  to  address  her  concerns.  Review  of  discharge \ntherapy records from 9/20/2023 indicated that she was “resistant” \nto  recommendations,  “argumentative”  and  requested  therapy \nelsewhere. \n \nAt this point given the history of prior interactions, the fact that she \nhas  on  her  own  accord  attempted  to  establish  care  and  has  a \npending  appointment  with  another  provider  through  the  work-\ncomp  system  which  has  apparently  been  orchestrated  with  her \nnewly acquired legal representation, and made references to taking \nlegal  action  against  my  orthopedic  hand  partner,  Dr.  Benafield,  I \ntold  her  that  I  would  hold  on  any  further  evaluation  of  her  new \npain complaints. Despite my explaining this to her, she also asked \nwither  or  not  she  could  receive  a  Toradol  shot,  which  I  politely \ndeclined.  I  did  not  take  a  detailed  history  of  injury  to  the  left \nshoulder.  I  did  not  inquire  about  prior  injuries  not  did  I  address \nwork   status   related   to   her   shoulder   injury.   From   my   prior \nevaluation, there are no functional limitations related to her elbows \n(initial  work  injury)  that  would  limit  her  ability  to  return  to  her \nprior work tasks which have been outlined previously as computer \nwork, administrative tasks and light duty activities. \n \nAgain, this visit was contentious and centered accusations that she \nhas not been provide the level of care that she expected. From prior \ninteractions, this stems from a differing opinion on whether she is \nable to continue her work activities as outlined. I truly believe she \n\nBass – H301603 \n \n-7- \nbelieves  that  she  cannot  perform  these  tasks.  Unfortunately,  all \nobjective data that  we have to make decisions from in the context \nof her initial WC injury does not support her belief that continuing \nthese  work  activities  will  result  in  irreversible  and  irreparable \nharm.  Any  attempts  at  discussing  a  return  to  work  plan  were  met \nwith   resistance.   My   interactions   seem   to   be   consistent   with \ndocumentation  from  Dr.  Benafield  and  our  occupational  therapy \nteam  about  interactions  they  have  also  had  with  Ms.  Bass.  At  this \npoint, I am not sure I have anything else further to add to her care. \n \nSummary \nWill hold on any further evaluation or treatment recommendations \ngiven  that  the  patient  has  established  care  with  another  provider \nthrough work-comp. \n \nNo   further   work   restrictions   per   my   recommendation   given \npending care through other provider. \n \nFollow up as needed. \n \n The claimant then began to see Dr. James Kelly, who eventually authored a letter to the \nCommission  dated  December  18,  2023,  and  is  found  at  Respondents’  Exhibit  1,  page  171. \nFollowing is the body of that letter: \nI am addressing his letter pertaining to Ms. Bass who presented to \nmy   office   today.   This   lady   is   suffering   from   severe   manic \ndepression.   She   is   almost   incoherent   and   unable   to   really \ncomprehend what I am trying to tell her. There is nothing surgical \nthat I can do for her, as most of her issues I believe are psychiatric. \nShe  may  very  well  have  issues  that  may  need  physical  treatment \nbut  with  her  current  psychiatric  state  I  am  not  able  to  do  this,  nor \ndo   I   think   anyone   else   would   be   able   to,   as   she   is   totally \ndecompensated.  I  am  addressing  his  letter  to  you,  basically  to \ninform  the  board,  I  am  not  treating  her  any  longer  and  she  really \nneeds  to  get  psychiatric  care,  which  has  nothing  to  do  with  a \nWorker’s Comp injury. I explained that to the patient as well, but I \nam sure she is not coherent enough to understand what I am trying \nto  get  across  to  her.  I  am  also  having  my  staff  contact  Anna \nMontgomery   at   Washington   Regional   who   she   listed   as   her \nprimary  care  doctor.  This  lady  certainly  needs  intervention  and \nneeds it urgently. I will try to get the primary care doctor involved, \nas well as obviously this is not within my practice scope. \n \n\nBass – H301603 \n \n-8- \n On  July  19,  2024,  Dr.  Owen  Kelly  performed  a  medical  records  review  of  the  claimant \nthat included the previously discussed medical treatment and evaluation summary at the request \nof the respondent. Dr. Owen Kelly also responded to four questions posed by the respondent as \nfollows: \nQUESTIONS: \n1. What complaints can be objectively related to the reported work \nrelated  incident  of  February  20,  2021  [February  21,  2023]?  After \nreviewing  the  records  and  the  provided  physician  statements  from \nDr.  James  Kelly  and  Dr.  Robert  Benafield,  the  bilateral  lateral \nepicondylitis  could  be  related  to  her  work  duties.  This  was  the \ndocumented initial complaint. \n \n2.  Has  Ms.  Bass  reached  maximum  medical  improvement  for  this \nreported  work  related  injury?  The  provided  records  indicate  that \nMs.  Bass  last  treated  in  June  of  2024  for  multiple  complaints  and \nthe elbows are one of them. Lateral epicondylitis isn’t considered a \none time injury. The records also indicate other non-physical, non-\nwork  related  issues  that  are  affecting  her.  Taking  into  account  the \ntwo  reputable  hand  surgeon  opinions  (Dr.  Benafield  and  Dr. \n(James) Kelly. She appears to be at MMI. \n \n3.  Is  there  any  permanent  impairment  noted  pursuant  to  the  AMA \nGuides  to  the  Evaluation  of  Permanent  Impairment  4\nth\n Edition? \nThere  is  no  of  permanent  impairment  for  the  bilateral  lateral \nepicondylitis. \n \n4.  Is  there  any  additional  medical  treatment  recommended  for  the \nreported work related injury? Other than conservative management \nof   the   lateral   epicondylitis,   no   further   imaging   or   testing   is \nrecommended. \n \n On December 27, 2024,  Dr. Arnold issued his independent medical  examination. At the \nconclusion of his report, Dr. Arnold gives the following diagnosis and opinion: \nDIAGNOSIS \n1.  Bilateral  chronic  lateral  epicondylitis  (based  on  mri/physical \nexam) \n2. No signs of cubital tunnel (based on normal emg/ncv) \n3. No signs of cervical radiculopathy (based on mri/physical exam) \n \n\nBass – H301603 \n \n-9- \nOPINION \n1. Claimant shows signs of symptom magnification \n2. No permanent impairment – at MMI \n3.   Claimant   has   failed   non-operative   treatment – no   further \ntreatment/studies necessary \n4. Would recommend sending for FCE \n \n The claimant then sees Dr. Tyler Carllee on January 31, 2025. The claimant indicates in \nhearing  testimony  that  she  was  able  to  see  Dr.  Carllee  by  obtaining  Medicaid  benefits.  Dr. \nCarllee’s medical report from that visit gives the following assessment/plan: \nAssessment and Plan: \n59-year-old    female    with    right    upper    extremity    symptoms \nconsistent   with   tennis   elbow,   cubital   tunnel   syndrome   most \nprevalent  on  the  right  elbow  without  frank  instability  but  subtle \ninstability  of  the  nerve,  triggering  of  the  ring  finger  on  the  right \nhand  at  the  A1  pulley  and  subacromial  impingement  on  the  right \nshoulder.   She   would   like   to   proceed   today   with   a   repeat \nsubacromial  injection.  I  am  happy  to  do  that  for  her.  She  is  an \nindication  and  candidate  for  ulnar  nerve  surgery  which  I  think \ntransposition would be the best option. I do not recommend doing \nany surgery however until she has completed her worker’s comp \nevaluation  with  a  functional  capacity  evaluation  of  the  upper \nextremities  and  have  that  completely  settled  before  having  any \nsurgery with me that is not covered by worker’s compensation. I \nthink  that  if  she  proceed  with  surgery  prior  to  this  it  will  be  very \ndifficult for her to distinguish symptoms related to her worker’s \ncomp  claim  verses  a  postoperative  scenario  after  having  had \nsurgery  on  her  elbow.  Happy  to  see  her  back  after  the  functional \ncapacity evaluation. \n \nRight subacromial injection \nAfter   obtaining   verbal   consent   from   the   patient   the   right \nsubacromial space with prepped in the standard sterile fashion with \nchlorhexidine.  A  time  out  was  done  confirming  the  laterality, \nprocedure  and  correct  patient.  Utilizing  an  anterior  entry  site  an \ninjection of 4 cc of 0.25% bupivacaine without epinephrine and 80 \nmg  of  Depo-Medrol  were  injected  into  the  subacromial  space \nwithout complication. The patient tolerated the procedure well and \na  band-aid  was  placed.  Information  about  the  injection  was  given \nto the patient. \n \n\nBass – H301603 \n \n-10- \n The claimant underwent right cubital tunnel syndrome surgery at the hands of Dr. Carllee \non June 9, 2025, at Willow Creek Women’s Hospital. Following is a portion of that operative \nreport: \nPreoperative Diagnosis \nRight cubital tunnel syndrome \n \nPostoperative Diagnosis \nCubital tunnel syndrome \n \n The  claimant  saw  Dr.  Carllee  for  a  follow-up  appointment  on  September  3,  2025. \nFollowing is a portion of that medical report: \nHistory of Present Illness \nSherri Lynn Bass is a 60 y.o. year old female patient. \nShe  is  12  weeks  out  from  surgery.  I  had  recommended  starting \nformal P.T. from the above procedure. She saw Chris Kelsey with \nTRM one time. She was given some home exercises. She is having \na  few  things  going  on  today.  She  is  having  olecranon  bursal  pain \nwith  resting  the  elbow,  she  has  persistent  triggering  of  the  right \nring  finger,  she  has  soreness  in  the  thumb  and  entire  hand  with \nintrinsic  muscle  exercises.  She  was  unable  to  continue  these \nbecause  of  hand  soreness.  She  has  some  paresthesias  over  the \nthumb  and  ulnar  long  finger.  She  also  feels  dullness  to  sensation \nover the olecranon area and incision. \n \nIn the past I have also evaluated her trigger finger of the right ring \nfinger.  She  was  scheduled  to  have  it  injected  at  the  time  of  her \nright  elbow  surgery  but  the  day  of  the  surgery  did  not  want  to  do \nthis because her symptoms were not bothering her enough. \n \nShe  has  also  been  evaluated  by  me  and  others  for  the  left  elbow. \nShe  has  had  cubital  tunnel  syndrome  with  this  side  as  well  for \nroughly  the  same  length  of  time  as  the  right  side.  She  has  tried \ntaking gabapentin, Cymbalta, and lyrica historically without relief. \nShe  has  had  side  effects  from  this  medication  that  are  limiting \nincluding grogginess and cognitive disturbances. \n \nHer  shoulder  is  doing  better  after  her  subacromial  injection  in  the \nright shoulder. \n \n*** \n\nBass – H301603 \n \n-11- \nAssessment and Plan \nSherri Lynn Bass is a 60 y.o. year old female patient. The patient is \nhere  for  a  Follow  up  for  the  right  ulnar  nerve  transposition \nperformed on 6-9-25. \n \nShe  is  not  interested  in  any  surgical  treatments  for  her  left  arm  or \ntrigger  finger  on  the  right  ring  finger  at  this  time.  I  do  think  a \ntrigger  finger  release  is  something  that  may  benefit  her  in  the \nfuture.  We  discussed  trying  to  get  all  the  way  recovered  from  her \nulnar  nerve  transposition  on  the  right  before  we  consider  doing \nanything on the left side. She will continue to do home exercises to \nwork  on  intrinsic  hand  strengthening.  I  do  think  some  of  her \nsymptoms  around  the  incision  with  numbness  and  dull  sensation \nare  going  to  improve  with  time  and  our  products  of  the  surgical \nincision  there  are  within  the  realm  of  normal.  I  do  think  she  has \ncubital tunnel on the left elbow with similar symptoms as the right. \nShe  has  also  had  lateral  epicondylitis  symptoms  on  both  elbows \nthat  we  have  treated  nonsurgically.  I  am  happy  to  see  her  back  in \nfuture as needed. \n \nAn  employer  shall  promptly  provide  for  an  injured  employee  such  medical  treatment  as \nmay be reasonably necessary in connection with the injury received by the employee. Ark. Code \nAnn. §11-9-508(a)(1). The claimant bears the burden of proving that he is entitled to additional \nmedical treatment. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). \nIt is the claimant’s burden to prove that she is entitled to additional medical treatment, \nand I find the claimant is unable to so. I recognize the treatment and surgical intervention that the \nclaimant underwent at the hands of Dr. Carllee after her independent medical evaluation by Dr. \nArnold.    However,    the    greater    weight    of    medical    evidence    points    to    the    claimant \noverexaggerating  her  symptoms  and  difficulties.  Given  the  opinions  of  Dr.  Benafield, Dr. \nDiemel, Dr. James Kelly, Dr. Owen Kelly, and Dr. Arnold, I find the claimant has failed to prove \nthat she is entitled to additional medical treatment. \n The claimant has also asked the Commission to determine if she is entitled to temporary \ntotal disability benefits from January 29, 2024, to a date yet to be determined.  \n\nBass – H301603 \n \n-12- \nA  claimant  who  suffers  a  scheduled  injury  is  entitled  to  receive  temporary  total  or \ntemporary  partial  disability  benefits  during  their  healing  period  or  until  they  return  to  work, \nregardless  of  whether  there  is  a  total  incapacity  to  earn  wages. Wheeler  Construction  Co.  v. \nArmstrong,  73 Ark. App. 146, 41 S.W. 3d 822 (2001). \n Upon  review  of  the  medical  evidence  submitted  by  both  parties  during  the  period  of \nJanuary 29, 2024, and forward, I find no evidence of the claimant being removed from work by a \nmedical  provider. Also,  I  am  in  agreement with  Dr. Arnold,  who  found  the  claimant  to  be  at \nmaximum  medical  improvement  in  his  December  27,  2024,  independent  medical  examination, \nand Dr. Owen Kelly in his report dated July 19, 2024, in which he states, “she appears to be at \nMMI.” \n In an August 3, 2023, visit with Dr. Diemel, his report in part states, “Again, I do not feel \nthere needs to be any further work restrictions as it relates to time. I will defer a final decision to \nDr. Benafield to whether or not she feels she still needs to observe the 10# weight restriction, or \nif any  surgical  treatment  of  her  elbow  needs  to  be  considered.  If  he  does  not  feel  that  she  is  a \nsurgical candidate, I need to finalize her WC case with declaration of MMI and FCE. I would be \nhappy to assist.” \n In her next visit with Dr. Benafield on August 23, 2023, that medical record in part states, \n“She kept reiterating to me how she could not do her job consisting of typing talking on the \nphone  writing  down  and  carrying  a  3 pound laptop.” ... “I believe the patient is exhibiting \nmalingering behavior and does not want to get better or go back to work.” Dr. Benafield went on \nto end the patient/doctor relationship with the claimant during that visit.  \n The claimant again saw Dr. Diemel on September 26, 2023. That medical record in part \nstates,  “From  my  prior  evaluation,  there  are  no  functional limitations  related  to  her  elbows \n\nBass – H301603 \n \n-13- \n(initial work injury) that would limit her ability to return to her prior work tasks which have been \noutlined previously as computer work, administrative tasks, and light duty activities.” \n The claimant has failed to prove by a preponderance of the evidence that she is entitled to \ntemporary total disability benefits from January 29, 2024, to a date yet to be determined. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nMarch 31, 2025, and contained in a Pre-hearing Order filed March 31, 2025, are hereby accepted \nas fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nadditional  medical  treatment  for  her  compensable  right  trigger  finger,  left  elbow,  and  left  wrist \ninjuries and to additional medical treatment for her compensable  right elbow injury in the form \nof surgery. \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \ntemporary total disability benefits from January 29, 2024, to a date yet to be determined.  \n 4. The respondents’ issue raised of independent intervening cause is moot. \n 5. The claimant’s compensation rates issue is moot. \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \n\nBass – H301603 \n \n-14- \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":29737,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H301603 SHERRI BASS, Employee CLAIMANT NATIONAL OPINION RESEARCH CTR, Employer RESPONDENT THE HARTFORD, Carrier RESPONDENT OPINION FILED JANUARY 12, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claim...","outcome":"denied","outcomeKeywords":["granted:1","denied:3"],"injuryKeywords":["wrist","cervical","back","shoulder"],"fetchedAt":"2026-05-19T22:32:38.489Z"},{"id":"alj-G305023-2026-01-12","awccNumber":"G305023","decisionDate":"2026-01-12","decisionYear":2026,"opinionType":"alj","claimantName":"John Boggs","employerName":"Ark Dept Of Transportation","title":"BOGGS VS. ARK DEPT OF TRANSPORTATION AWCC# G305023 January 12, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BOGGS_JOHN_G305023_20260112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOGGS_JOHN_G305023_20260112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G305023 \n \nJOHN BOGGS, Employee CLAIMANT \n \nARK DEPT OF TRANSPORTATION, Employer RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 12, 2026 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents  represented  by CHARLES  MCLEMORE,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On November 3, 2025, the above captioned claim came on for a hearing at Fort \nSmith,  Arkansas.      A  pre-hearing  conference  was  conducted  on July  16,  2025,  and  a \npre-hearing  order  was  filed  on  that  same  date. A  copy  of  the  Pre-hearing  Order  has \nbeen  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.  The Arkansas Workers' Compensation Commission has jurisdiction of \nthe within claim. \n2. Prior Opinions of Full Commission filed May 13, 2022, and Administrative Law \nJudge Opinion filed July 16, 2024, are final. \n\nBoggs – G305023 \n \n-2- \nThe issues to be litigated at the forthcoming hearing are as follows: \n1. Claimant’s entitlement to additional benefits for wage loss due to a change in \nphysical condition. \n2. Attorney fee. \nThe claimant contends: \n \n“a. The Claimant contends that his condition has materially \nworsened  since  his  March  4,  2024  MMI  date  and  that \nalthough   the   respondents   have   been   apprised   of   that \nmaterial  worsening  and  requested  to  provide  a  job  that \naccommodates  the  claimant’s  worsened  condition,  the \nrespondents have failed to do so. \n \nb.  The  Claimant  contends  that  his  wage  loss  disability  is \ngreater  than  it  was  before  the  material  worsening  in  his \ncondition occurred. \n \nc.  The  Claimant  contends  that  his  attorney  is  entitled  to  an \nattorney’s fee in regard to any wage loss disability awarded \nover and above that which has previously been awarded.” \n \nThe respondents contend: \n \n“The  Respondents  contend  that  this  claim  has  been \naccepted  as  compensable  and  that  the  claimant  has  been \nprovided    all    benefits    to    which    he    is    entitled.    The \nRespondents  contend  that,  to  date,  the  claimant  has  bene \nprovided   all   medical   treatment   that   is   reasonable   and \nnecessary  for  the  compensable  injury  that  he  sustained, \nincluding pain management. \n \nThere  was  a  previous  hearing  in  this  matter  on  November \n22, 2021 resulting in the December 17, 2021 Opinion of the \nAdministrative  Law  Judge,  followed  by  a  May  13,  2022 \nOpinion  of  the  Full  Commission.  There  was  also  another \nprevious  hearing  in  this  matter  on  June  17,  2024,  the  issue \nlitigated was the claimant’s demand for wage loss disability \nbenefits,  resulting  in  the  July  16,  2024  Opinion  of  the \nadministrative Law Judge finding that the claimant is entitled \nto 35% wage loss disability benefits. This award has already \nbeen paid in a lump sum to the claimant at his request. The \n\nBoggs – G305023 \n \n-3- \nprior  decisions  in  tis  matter  are  final,  res  judicata,  and  the \nlaw of the case. \n \nSubsequent   to   the   hearing   and   award,   the   claimant \ndemanded a new FCE, then after the Respondent schedule \nan  FCE  for  him,  the  claimant  demanded  that  the  FCE  be \ncancelled.  The  claimant  then  eventually  underwent  his  own \nFCE  and  demanded  that  he  be  accommodated  at  work  for \nnew  sedentary  limitations  he  claimed  to  have.  The  claimant \nhad  performed  unreliably  at  an  FCE  on  March  27,  2024  in \nthe   sedentary   classification   with   24   of   46   consistency \nmeasures.  Dr.  Blankenship  released  the  claimant  at  MMI \nand  on  March  4,  2024  wrote  that  the  claimant  has  a  13% \npermanent  impairment  rating.  Dr.  Blankenship  also  wrote \nthat  the  claimant  could  return  to  gainful  employment  with \nwork restrictions. The claimant in fact returned to work for his \nemployer  where  his  restrictions  were  accommodated,  and \nthis was the subject of previous litigation. The claimant now \ncontends  that  his  restrictions  have  changed  in  some  way, \nthat   he   is   no   longer   able   to   perform   his   job   with   the \naccommodations  provided  by  his  employer,  and  that  he  is \nentitled to a greater wage loss award. \n \nThe  Respondent  contends  that  the  claimant  has  not  had \nanother   surgery,   has   not   been   assigned   any   greater \npermanent  impairment  rating  of  different  work  restrictions \nfrom   an   authorized   treating   physician,   and   he   cannot \nestablish   a   change   in   physical   condition   to   modify   the \nprevious  compensation  award.  The  Respondent  contends \nthat  the  claimant  cannot  prove  his  work  injury  is  the  major \ncause   of   his   abstinence   from   working   or   any   greater \ndisability he claims to have. The Respondent contends that a \nbona   fide   offer   of   employment   has  been   made   to   the \nclaimant,  which  the  claimant  has  declined  and  cannot  be \nentitled  to  an  award  of  wage  loss  disability  benefits  or \npermanent  total  disability  benefits.  The  Respondent  also \ncontends  that  the  claimant’s  demands  are  barred  by  the \ndoctrine  of  res  judicata  since  his  demands  have  already \nbeen litigated. \n \nThe   Respondents   reserve   the   right   to   raise   additional \ncontentions,  or  to  modify  those  stated  herein,  pending  the \ncompletion of discovery.\" \n\nBoggs – G305023 \n \n-4- \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on July 16, 2025, and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n 2. Claimant’s claim for additional benefits is not untimely. \n 3. Claimant’s claim for additional benefits is not barred by res judicata. \n 4. Claimant has failed to prove by a preponderance of the evidence that he has \nsuffered  a  change  in physical  condition that  would  entitle  him  to additional  benefits  for \nwage loss. \n \nFACTUAL BACKGROUND \n The   claimant   is   a   54-year-old   man   who   began   working   for   respondent \napproximately  16  years  ago.  He  suffered  an  admittedly  compensable  injury  to  his \nlumbar  spine  on  December  19,  2011.  Surgery  on  claimant’s  lumbar  spine  was \nrecommended   by   two   neurosurgeons,   but   claimant   elected   not   to   undergo   the \nrecommended procedure. Instead, claimant returned to work for respondent performing \na  job  that  allowed  supervisory work, and  he  continued  to  receive  medical  treatment  in \nthe form of pain management, which primarily consisted of pain medication.  \n\nBoggs – G305023 \n \n-5- \n A prior hearing was conducted on claimant’s entitlement to stem cell injections. \nBefore  a  final  decision  could  be  made  by the  Commission  regarding  this  request,  the \nphysician  recommending  the  injections  indicated  that  the  injections  would  no  longer \nbenefit  claimant’s  condition.  Accordingly,  claimant  withdrew  his  request  for  the \ninjections.  \n Thereafter,  claimant  filed  for  and  received  a  Change  of  Physician  to  Dr. \nBlankenship,  who  initially  treated  claimant  on  February  20,  2023.  Dr.  Blankenship \nrecommended  a  different  surgical  procedure  than  that  previously  recommended  for \nclaimant and  he performed  the  surgery  on  April  18,  2023.  Following  that  procedure, \nclaimant  continued  treating  with  Dr.  Blankenship;  underwent  epidural  steroid  injections \nby Dr. Cannon; and underwent physical therapy. \n Dr.   Blankenship   opined   that   claimant   had   reached   maximum   medical \nimprovement on March 4, 2024, and assigned claimant a 13% impairment rating to the \nbody as a whole for his compensable low back injury. A hearing was conducted on June \n17, 2024, on the issue of claimant’s entitlement to benefits for wage loss resulting from \nhis compensable injury. An Order was filed on July 16, 2024, finding that claimant had \nsuffered  a  loss  in  wage  earning  capacity  in  an  amount  equal  to  35%  to  the  body  as  a \nwhole. That opinion was not appealed, and the parties have stipulated that it is final. \n Claimant  has  filed  this  current  claim  contending  that  his  physical  condition  has \nworsened  and  that  he  is  entitled  to  additional  permanent  disability  benefits  over  and \nabove the 35% previously awarded. \n \n \n\nBoggs – G305023 \n \n-6- \nADJUDICATION \n Initially,  respondent  contends  that  claimant’s  request  for  additional  benefits \nbased  upon  a  change  in  physical  condition  is  untimely.  In  support  of  this  contention, \nrespondent  cites  ACA §11-9-522(d)  and  ACA §11-9-713.  With  regard  to  ACA §11-9-\n713, respondent contends that claimant’s request for a hearing on May 22, 2025, was \nmore than six months after the lump sum payment for previously awarded benefits was \nmade on September 6, 2024.  \n However, I find that claimant’s request was timely because his request was filed \nwithin  one  year  of  the  date  of  last  payment  of  compensation.  While  ACA §11-9-713 \ndoes contain a six-month time period for filing a claim based upon a change in physical \ncondition,  ACA §11-9-702(b)(1)  states  that  claims  for  additional  benefits  must  be  filed \nwithin one year from the date of last payment of compensation. The conflict between the \nsix-month  period  and  the  one-year  period  was  addressed  in Southern  Wooden  Box \nCompany v. Smith, 5 Ark. App. 14, 631 S.W.2d 620 (1982) in which the Court held that \nwhere a claimant seeks additional benefits after a final award, ACA §11-9-713 governs \nas to the grounds required and ACA §11-9-702(b) governs the period of limitation for all \nclaims for additional benefits, whether or not there has been a final award. \n Thus, claimant’s request for a hearing for additional benefits based on a change \nin  physical  condition  filed  on  May  22,  2025,  was  within  one  year  of  the  lump  sum \npayment  on  September  6,  2024.  Since  I  have  found  that  this  was  within  the  one-year \ntime period, it is not necessary to consider whether the claim was filed within one year \nof payment of other benefits such as medical benefits. Accordingly, I find that claimant’s \nclaim was timely filed. \n\nBoggs – G305023 \n \n-7- \n Next, respondent argues that claimant’s claim is barred by the doctrine of res \njudicata. The purpose of res judicata is to put an end to litigation by preventing a party \nwho has had one fair trial on a matter from relitigating the same matter a second time. \nCox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 (2003). Res judicata applies where \nthere  has  been  a  final  adjudication  on  the  merits  of  the  issue  by  a  court  of  competent \njurisdiction on all matters litigated and those matters necessarily within the issue which \nmight  have  been  litigated. Beliew  v. Stuttgart  Rice  Mill,  64  Ark.  App.  334,  987  S.W.2d \n281 (1998). \n While  there  was  a  prior  hearing  on  the  issue  of  claimant’s  wage  loss,  the \nArkansas  Workers’  Compensation  law  provides  for  an  award  to  be  reviewed  and \nmodified  at  the  request  of  any  party  in  interest  on  the  ground  of  a  change  in  physical \ncondition. See ACA §11-9-713(a)(3). Here, claimant is contending that he has suffered \na  change  in  his  physical  condition  since  the  last  hearing  and is therefore  entitled  to \nadditional benefits for wage loss resulting from that change. I do not find that claimant’s \nclaim  based  upon  a  change  in  physical  condition  is  barred  by  the  doctrine  of res \njudicata. In fact, his claim is specifically permitted by statute. \n The primary issue in this claim is whether claimant has proven that he suffered a \nchange  in  his  physical  condition  such  that  his  prior  award  of  benefits  of  wage  loss \nshould  be  modified.  As  previously  noted,  modification  of  awards  is  governed  by  the \nprovisions of ACA §11-9-713. That statute states that the Commission may review any \ncompensation order, award, or decision. \n I find based on the evidence presented that claimant has failed to prove that he \nhas suffered a change in physical condition since the prior award.  \n\nBoggs – G305023 \n \n-8- \n Prior  to  the  last  hearing  on  June  17,  2024,  claimant  was  provided  work  as  a \nstoreroom assistant for respondent, working five hours per day, five days per week. His \njob duties included handing out inventory, data entry, general office work, clerical work, \nanswering emails, and answering the telephone. \n Claimant testified that his job required him to perform a lot of twisting and turning \nin  an  office  chair  to  reach  a  fax/scanner  machine  behind  him.  He  testified  that  this \nactivity  increased  his  spasms  and  pain  which,  in  turn,  prevented  him  from  sleeping  at \nnight.  However,  claimant  admitted  that  he  has  been  taking  medication  for  muscle \nspasms for many years. \nQ What do you take for muscle spasms? \n \nA It’s Flexeril something – it’s a generic form of Flexeril. \nI don’t know. I don’t remember what it is called. \n \nQ How long have you been prescribed that? \n \nA For years. I don’t know how long. As long as I’ve been \ngoing to pain management. \n \nQ Okay. Who treats you for pain management? \n \nA Dr. Gaines. \n \nQ And how long have you seen Dr. Gaines. \n \nA I don’t know. \n \nQ Has it been some years? \n \nA It has been many years, yes. \n With  respect  to  muscles  spasms,  I  note  that  medical  records  dated  prior  to  the \nlast  hearing  contain  numerous  observations  of  muscle  spasms.  This  includes  the \n\nBoggs – G305023 \n \n-9- \nmedical  records  of  Dr.  Slabbert,  claimant’s  primary care physician,  whose  medical \nrecords have been introduced at the most recent hearing. \n With regard to his inability to sleep, claimant also had these same complaints at \nthe time of the hearing in 2024.  \nQ So  does  your  pain  have  any  affect  on  your  ability  to \nsleep? \n \nA Yes. \n \nQ What? \n \nA Most nights I don’t. If I get any sleep, it is about three \nhours of sleep, if I get sleep. \n \nQ What time do you typically try to get to bed? \n \nA 8:30, 9 o’clock. \n \nQ If you get to bed by 9 o’clock, about what time will you \nactually be able to go to sleep? \n \nA Well, as I said, most times I don’t. If I get sleep, after \nmidnight. \n \nQ And why is that? \n \nA Because I can’t – because of my pain. There is not a \ncomfortable position that I can get in that my back and that \nleg does not hurt. \n \n*** \nQ Do  you  have  firsthand  knowledge  that  you  are  not \nable  to  work  able  to  work  five  hours  a  day,  five  days  a \nweek? \n \nA Yes, sir. \n \nQ And how do you know that? \n \nA Because I don’t get any sleep. I get zero sleep. I am \nin too much pain. \n\nBoggs – G305023 \n \n-10- \n \n Thus, at the hearing in 2024, claimant testified that he did not sleep at night due \nto pain. \n Interestingly, the claimant’s last day to work for respondent was on October 11, \n2024.  Claimant  testified  that  on  that  day  he  was  driving  home  when  he  dozed  off  and \nran off the road into a ditch, tearing up the air dam on his vehicle. Claimant testified that \nhe is has not worked since that day and he attributes his falling asleep to his inability to \nsleep  at  night  caused  by  pain  and  muscle  spasms.  Again,  these  are  the  same \ncomplaints claimant had at the time of the 2024 hearing. In addition, I also note that the \nmedical  records  indicate  that  the  claimant  suffers  from  narcolepsy  for  which  he  is \ncurrently receiving treatment.  \n With respect to claimant’s ability to perform the job offered to him by respondent, \nI note that claimant’s supervisor offered to provide claimant with a sitting/standing desk; \nhowever, claimant chose not to accept that offer.  \nQ Didn’t  your  supervisor  offer  you  a  sitting-standing \ndesk? \n \nA They – yes. \n \nQ Okay. But you didn’t want that? \n \nA I  told  him  that  if – that I would let him know. I wasn’t \nthere  long  enough  to  kind  of  figure  out  what  my  problem \nwas. I had asked for a chair because I thought that the chair \nwas the issue. They provided a chair. I hadn’t used it long \nenough  to  see  if  that  benefited  me  because  the  condition \ndidn’t improve and it got worse before I had a chance to try \nthe other option. \n\nBoggs – G305023 \n \n-11- \n I  also  note  that  claimant  testified  that  he  does  not  believe  he  is  capable  of \nperforming any job at this time. However, claimant had the same testimony at the 2024 \nhearing.  \nQ Okay.  Page  11  of  the  respondent’s  medical  exhibit \ndescribes the work duties you had and the last sentence on \npage  11  of  the  exhibit says,  “He  reports  he  is  unable  to \nperform those activities at this time due to his injury.” \n \n Did you say that to the FCE examiner? \n \nA I absolutely probably did. \n \nQ So  you  don’t  feel  like  you  could  do  that  supervisor \njob? \n \nA I don’t – if you are asking me, I don’t feel like I can do \nany job right now, but I am. I still – I don’t even feel like I am \nfixed. \n \n Thus, claimant had the same complaints at the time of the prior hearing in 2024. \n Before  the  hearing  on  June  17,  2024,  claimant  had  undergone  a  functional \ncapacity evaluation which was determined to be unreliable due to inconsistent effort on \nclaimant’s behalf. However, the evaluation determined that claimant demonstrated the \nability to work in at least a sedentary classification of work over the course of a normal \neight-hour  workday.  Dr.  Blankenship  eventually  placed  some  restrictions  on  claimant \nthat were less restrictive than the FCE. \n Since  the  2024 hearing,  claimant  has  undergone  another  FCE.  Notably,  the \nsecond evaluation indicated that claimant gave a consistent effort and was reliable. That \nevaluation   was   performed   by   Velvet   Medlock.   Medlock   compared   the   two   FCE \nevaluations  and  in  a  report  dated  March  17,  2025,  noted  that  both  reached  the  same \n\nBoggs – G305023 \n \n-12- \nconclusion – that claimant was capable of performing sedentary work. The most recent \nFCE did not indicate that claimant was incapable of performing any work. \n Claimant also relies on the opinion of his primary care physician, Dr. Slabbert, in \nsupport of his contention that his physical condition has worsened.  \n First,  I  note  that  claimant  has  received  medical  treatment  from  Dr.  Slabbert  for \nmany  nonwork-related  conditions  including – gout;  anxiety;  depression;  neck  pain; \nupper  back  spasms;  allergies;  hypertension;  narcolepsy;  low  Vitamin  D.  Furthermore, \nclaimant has not been treating with Dr. Slabbert for his low back complaints; instead, he \nhas  been  receiving  pain  management  treatment  from  Dr. Gaines who  is  currently  his \nauthorized  treating  physician.  Basically,  Dr.  Slabbert,  in  a  report  dated  January  17, \n2025,  indicated  that  he  did  not  believe  claimant  would  be  able  to  continue  his  current \nwork in spite of the accommodations which had been made for him. Notably, at the time \nthis  report  was  written  by  Dr.  Slabbert,  claimant  had  not  worked  for  the  respondent \nsince October 2024, some three months earlier.  \nIn  addition,  on  June  6,  2025,  Dr.  Slabbert  completed  a  form  for  claimant \nregarding FMLA. Dr. Slabbert again indicated that he did not believe claimant would be \nable to return to work in the foreseeable future. Significantly, Dr. Slabbert’s opinion is \nbased  on  a  number  of  factors  which  are  not  related  to  his  compensable  injury.  For \ninstance, Dr. Slabbert indicates that the probable duration of claimant’s condition is for \nhis lifetime and that it could be work related. He then notes that claimant has undergone \ncervical spine and lumbar spine surgery. However, claimant’s cervical spine surgery \nand  issues  related  to  that  condition  are  not  related  to  his  work-related  injury.  Dr. \nSlabbert  also  notes  that  claimant  is  taking  antidepressant  medication  with  a  pending \n\nBoggs – G305023 \n \n-13- \npsychiatric appointment. Again, these are conditions which are not related to claimant’s \nwork-related  injury.  In  describing  other  relevant  medical  facts  related  to  claimant’s \ncondition   Dr.   Slabbert   noted   that   claimant   was   being   evaluated   for   worsening \ndepression and was on medication that could/will affect his concentration. Again, this is \na condition which is not related to claimant’s work injury. Dr. Slabbert goes on to note \nvarious  conditions  which  include  depression;  radiculopathy;  chronic  back  pain;  the  use \nof  a  cane;  spasm  of  the  thoracic  back  muscle;  restlessness  and  agitation  due  to  pain; \nchronic  right  shoulder  pain; spinal  stenosis  of  the  cervical  region;  and  hypertension. \nAgain, many of these issues are not related to claimant’s low back complaints.  \nTherefore,  I  do  not  find  Dr.  Slabbert’s  opinion  regarding  claimant’s  ability  to \nreturn  to  work  persuasive  given  that  his  opinion  is  based  in  large  part  on  conditions \nwhich  are  not  related  to  claimant’s  work-related  injury  and  his  lack  of  any  specific \nmedical observations noting that claimant’s work-related condition has worsened since \nthe time of the last hearing in 2024. \n I  also  find  Dr.  Blankenship’s  opinion  of  November  21,  2024,  significant.  This \nreport  was  written approximately  one month after  claimant  last  worked  for  respondent. \nDr. Blankenship stated: \nThe gentleman’s main pain complaint is right buttock pain \nand  leg  pain.  He  underwent  surgical  intervention  with  a \nmultilevel  anterior  lumbar  interbody  arthrodesis  now  a  year \nand  a  half  ago.  He  is  also  complaining  of  some  headaches \nand mid scapular pain. Before I saw him for his low back, he \nhad anterior cervical arthrodesis and fusion by Dr. Johnson. \nHis  SI  joint  examination  is  negative  in  all-5  testing.  His \npiriformis examination is positive. The gentleman also had a \nright-sided  transforaminal  L5  ESI  that  did  not  afford  any \nrelief;  it  actually  exacerbated  his  pain.  He  is  back  in  doing \nphysical therapy with the folks at Total Spine. Unfortunately, \n\nBoggs – G305023 \n \n-14- \ninitially  after  surgery  he  was  not  very  compliant  with  his \nphysical  therapy. I  just  do  not  see  a  compressive  etiology \nthat  would  explain  his  leg  pain.  His  surgical  construct  is \ngood.   It   appears   to   be   solidly   fused.   There   is   no \nadvancement of adjacent segment disease. His \npostoperative   myelogram   that   was   done   last   year   also \nlooked  good  with  no  residual  or  retained  stenosis  and  no \ncomplication of   the   orthopedic   implants. His   MRI   does \ndemonstrate  well-decompressed  thecal  sac  with  no  gross \ncomplications. With his plain x-rays looking as good as they \ndo,  I  do  not  think  there  is  any  problem  with  the  orthopedic \nimplants  or  the  decompression.  He  does  not  have  any \nadvancement   of   adjacent   segment   disease.   Solidity   of \narthrodesis cannot be determined on his MRI but, combined \nwith  his  plain  radiographs  and  visualization  of  anterior  bone \nformation,  I  do  not  think  pseudoarthrosis  is  a  problem. \n(Emphasis added). \n \n Dr.  Blankenship  went  on  to  indicate  that  he  had  nothing  further  to  offer  the \nclaimant other than a repeat functional capacity evaluation which claimant did not want. \nAgain, Dr. Blankenship’s report is notable because it was given almost one month after \nthe claimant last worked for the respondent. \n I do note Dr. Blankenship subsequently indicated he would defer to the opinion of \nmedical  providers  who  had evaluated  and treated  the  claimant  after  he  last  saw  the \nclaimant  on  November  21,  2024.  However,  that  deferral  does  not  change  the  fact  that \nDr.  Blankenship,  as  a  specialist,  evaluated  the  claimant  and  gave  an  opinion  based \nupon  specific  medical  findings  in  his  report  of  November  17,  2024.  Even  though  Dr. \nSlabbert has expressed an opinion regarding claimant’s ability to return to work, Dr. \nSlabbert  is  a  primary  care  physician,  not  a  specialist.  Furthermore,  Dr.  Slabbert’s \nmedical reports do not contain any details regarding his specific evaluation of claimant’s \nlow back complaints. Furthermore, as previously noted, Dr. Slabbert’s opinion is based \non conditions which are not related to claimant’s compensable low back injury. \n\nBoggs – G305023 \n \n-15- \n I  also  note  that  claimant  was  evaluated  by  Carol  Kennedy,  APRN, at  My  Psych \nHealth on May 17, 2025. That report contains the following: \nPsych  Impression:  Presents  with  depression;  a  sleep  wake \ndisorder;  trauma, and related  disorders.  Level  of  stress  was \nsevere  and  included  economic  problems,  health  problems, \noccupational  problems,  problems  with  access  to  healthcare, \nand relationship problems. \n \n Many of these issues are not related to claimant’s compensable low back injury. \nDr.  Slabbert  has also indicated  that  claimant  suffers  from  depression.  However,  Dr. \nGaines,  claimant’s  pain  management  physician, in  her  report dated  June  19,  2025, \nstated  that  claimant  was  not  depressed  based  upon  a  depression  screening  that  was \nperformed and returned normal.  \n In summary, since the time of the last hearing in 2024, claimant has undergone \nno  additional  surgical  treatment.  He  has  not  been  assigned  any  additional  permanent \nimpairment.  Claimant  has  not  received  any  change  in  the  treatment  provided  by  his \nauthorized  treating  physicians.  Claimant  is  still  receiving  pain  management  treatment \nfrom Dr. Gaines as he was receiving at the time of the hearing in 2024. To the contrary, \nDr.  Gaines’  medical  records  indicate  that  she  has  decreased  the  amount  of  pain \nmedications given to claimant. Although I acknowledge that Dr. Slabbert has opined that \nhe does not believe that claimant can return to his job with respondent, I do not find his \nopinion  persuasive.  First,  his  opinion  is  based  on  conditions  that  are  not  related  to \nclaimant’s work-related  injury.  Second,  Dr.  Blankenship  in  his  report  noted  testing  and \nhis  exam  findings  did  not  explain  claimant’s  continued  complaints  of  leg  pain. \nFurthermore, Dr. Gaines, claimant’s authorized treating physician for pain management, \nhas not opined that claimant’s condition has worsened but instead, has reduced the \n\nBoggs – G305023 \n \n-16- \namount  of  pain  medications  prescribed.  Finally,  the  complaints  claimant  mentioned  at \nthe hearing which included muscle spasms, pain, lack of sleeping, and a belief that he is \nincapable of working were all present at the time of the hearing in 2024. \n Based  upon  the  foregoing  evidence,  I  find  that  claimant  has  failed  to  meet  his \nburden of proving by a preponderance of the evidence that he has suffered a change in \nhis  physical  condition.  Therefore,  I  find  that  claimant  is  not  entitled  to  additional \ncompensation benefits for wage loss. \n \nORDER \n Claimant’s claim was timely filed, and it is not barred by the doctrine of res \njudicata.  However,  I  find  that  claimant  has  failed  to  meet  his  burden  of  proving  by  a \npreponderance of the evidence that he suffered a change in his physical condition since \nthe  last  hearing in  2024.  Accordingly,  claimant’s  claim  for  additional  compensation \nbenefits is hereby denied and dismissed.  \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court \nreporter,  Veronica  Lane,  fees  and  expenses  within  thirty  (30)  days  of  receipt  of  the \ninvoice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":28839,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G305023 JOHN BOGGS, Employee CLAIMANT ARK DEPT OF TRANSPORTATION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED JANUARY 12, 2026 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["lumbar","back","neck","cervical","thoracic","shoulder"],"fetchedAt":"2026-05-19T22:32:40.563Z"},{"id":"alj-H403567-2026-01-12","awccNumber":"H403567","decisionDate":"2026-01-12","decisionYear":2026,"opinionType":"alj","claimantName":"Dina Yugen","employerName":"Pinnacle Car Service, Inc","title":"YUGEN VS. PINNACLE CAR SERVICE, INC. AWCC# H403567 January 12, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/YUGEN_DINA_H403567_20260112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"YUGEN_DINA_H403567_20260112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H403567 \n \nDINA YUGEN, Employee CLAIMANT \n \nPINNACLE CAR SERVICE, INC., Employer RESPONDENT \n \nBROADSPIRE, Carrier RESPONDENT \n \n OPINION FILED JANUARY 12, 2026 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by JASON M. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On October  14,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on March  10,  2025,  and  a  Pre-hearing \nOrder  was  filed  on March  13,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  May \n21, 2024. \n 3. The respondents have controverted the claim in its entirety. \n 4. The claimant’s weekly compensation rates will be determined at a later date. \n By agreement of the parties the issues to litigate are limited to the following: \n\nYugen – H403567 \n \n-2- \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  her  neck  on  or  about  May  21, \n2024. \n 2. Whether Claimant is entitled to medical treatment for her neck injuries. \n 3. Respondents request sanctions under ACA §11-9-717 in that Claimant failed to appear \nfor a scheduled deposition. \n The claimant's contentions are as follows: \n“Claimant  contends  she  is  entitled  to  medical  treatment  for  her \nneck and left shoulder. Claimant reserves all other issues.” \n \n The respondents’ contentions are as follows: \n“The  claimant  did  not  suffer  a  compensable  injury.  Sanctions \n(including  costs,  fees,  and  dismissal)  should  be  imposed  upon  the \nclaimant because she failed to appear for a duly noticed deposition \nand  Respondents  incurred  costs  and  attorney’s  fees  as  a  result. \nClaimant’s  treatment  thus  far  was  not  related,  reasonable,  or \nnecessary.    Claimant    suffers    from    preexisting    injuries    and \nconditions which were not caused or  affected by  the alleged work \ninjury.” \n \n The  claimant  in  this  matter  is  a 53-year-old  female who  alleges  to  have  sustained  a \ncompensable injury to her cervical spine on or about May 21, 2024. The claimant was employed \nwith  the  respondent  as  a  driver.  The  claimant  drove  motorcoaches,  minicoaches,  Cadillacs  and \nSuburbans for the respondent.  In direct  examination, the claimant gave the following testimony \nabout  the  incident  in  which  she  alleges  her  compensable  cervical  spine  injury  to  have  occurred \nand her reporting of that injury.  \nQ And what happened on May 21\nst\n in 2024? \n \nA It was track – it was the last track meet at the U of A, and I \nhad University of Arkansas, the Razorback men’s track team, and I \nwent  to  the  shop  to  get  the  bus  ready,  and  I  did  a  pre-trip,  and  I \nhurt myself on the luggage bay door, the first luggage bay door. \n \n\nYugen – H403567 \n \n-3- \nQ And how did you hurt yourself on the luggage bay door? \n \nA When  I  lifted  the  handle,  normally  the  bus – the  bay  door \nkind of just swings out. It has shocks  and so  I lifted it, and it was \nheavy, and  I lifted it and had to swing my wrist around to kind of \nget  under  it  so  I  can  use  my  weight  and  lift  it  up  into  the  locked \nposition. \n \nQ Are  those  doors  supposed  to  just  raise  automatically  when \nyou unlock them, or how does that work? \n \nA No,  you  unlock  them  and  then  the  springs  or  the  shocks \nassist, and you just kind of guide it up and then put it in the locked \nposition. \n \nQ And so was that system not working that day? \n \nA No. \n \nQ And how much force would you say it took you to pick that \nup? \n \nA I don’t know how much force, but I had to bend down and \nget under it to lift it. \n \nQ Did it feel difficult? \n \nA Well,  yeah.  I  knew  it  was  broke,  and  I  hurt  my  wrist,  my \nelbow. I just had lots of shooting pain come up. And then from my \nshoulder  to  my  neck  just  start  sharp,  stabbing  pains.  And  at  that \ntime, I called Julian. \n \nQ And who is Julian? \n \nA He was my direct manager, the team leader. \n \nQ And what did you tell Julian? \n \nA I told him, “The bay is broke and I need another bus.” \n \nQ Did you tell him that you had hurt yourself? \n \nA I did. \n \nQ And what did he say? \n\nYugen – H403567 \n \n-4- \n \nA He said, “We don’t have another bus and we don’t have \nanother person.” \n \nQ So did you continue working? \n \nA I did. I continued my pre-trip. I wrote it up on my pre-trip, \nand I took off to go get the track team, and I had to lift it up again. \nSo every time I went to a destination, I’d have to open up that \nluggage bay and do the same process. \n \nQ And how long did you continue working before  you saw a \ndoctor? \n \nA The  track  meet  lasted a  few  days,  so  five,  six,  seven  days, \nbecause the last day when I was done, they asked me to take over \nbecause  someone  ran  out  of  hours,  and  so  I  worked  till  midnight \nthat night. \n \nQ So in these days that you worked after the injury, did your \nsymptoms progress? \n \nA Yes. I told Julian I was putting a hot towel on my neck and \nshoulders once I would get up into my room for the evening. \n \nQ And why were you continuing to work during this time? \n \nA Because    they    had    no    replacement    driver    and    no \nreplacement bus. \n \n The claimant was asked on direct examination about whether the respondent sent her for \nmedical treatment. She testified that she was told she could go to a doctor of her own choosing. \nThe  claimant  was  seen  at  Mercy  Clinic  in  Bentonville,  Arkansas,  by  APRN  Albert  Prince  on \nMay 28, 2024. Following is a portion of that medical record: \nMusculoskeletal:   Positive   for   arthralgias,   joint   swelling   and \nmyalgias. \nWas lifting a luggage door on last Tuesday with her job, has had a \nleft  neck  pain  since  then.  Had  had  all  of  her  joints  hurt,  pain \ngetting out of bed, felt like needles. No other family members have \nbeen ill. Has not been tested for autoimmune problems in the past \nas this has not happened like this before. \n\nYugen – H403567 \n \n-5- \n \n*** \nCervical back: Normal range of motion. \nComments:  Edema  of  both  lower  extremities  which  is  pretibial. \nHas swelling of the joints of her hands and wrists. Has some mild \nswelling  and  tenderness  of  the  upper  trapezius  especially  on  the \nleft  side.  There  is  decreased  range  of  motion  of  the  cervical  spine \nin all planes. \n \n*** \nI  have  discussed  with  her  that  we  did  not  get  approval  from  her \nemployer for evaluation of Worker’s Comp prior to this visit.  \nShe needs to follow-up with her employer regarding the symptoms \nin her neck. \n \n The claimant was seen  at Conservative Care  Occupational Health in Springdale on May \n31, 2024, by PAC Daniel Nicholas. Following is a portion of that medical record: \nPATIENT DESCRIPTION OF ACCIDENT \nPatient states that she lifted a luggage door and suddenly felt pain \nin her neck. Patient states that the pain is radiating down to her left \nshoulder, left wrist and into her shoulder blade. Patient was seen at \na Walk-in clinic and ER and was given Prednisone. \n \nCHIEF COMPLAINT \nNeck injury. \n \nHISTORY OF PRESENT ILLNESS \nDiana’s primary problem is pain located in the neck. She describes \nit  as  aching,  stiff,  numb,  sharp,  burning.  She  considers  it  to  be \nmoderate.  The  problem  began  on  5/21/2024.  Dina  says  that  it \nseems  to  be  constant.  She  has  noticed  that  it  is  made  worse  by \nmoving. \n \nCOMMENTS ON HISTORY OF PRESENT ILLNESS \nThis  is  the  first  time  I  have  seen  Dina  for  this  problem.  She  was \ninjured  10  days  ago  at  work.  She  continued  working  in  pian.  She \ngot  much  worse  5  days  ago.  She  was  seen  at  two  different  clinics \nand started prednisone taper 3 days ago. Her swelling is improving, \nbut her pain is not. \n \n*** \nASSESSMENT \n\nYugen – H403567 \n \n-6- \nI  have  no  explanation  for  her  systemic  swelling  that  occurred  5 \ndays ago. I agree with the treatment of steroids and they seem to be \nreducing her swelling. \nNumber   and   Complexity   of   Problems   Addressed:   1   acute \ncomplicated injury. \nRationale: the injury is extensive, Evaluation of body systems that \nare  not  directly  part  of  the  injured  organ,  Treatment  options  are \nmultiple. \n \nTREATMENT PLAN \nShe will finish her steroid pack. She will start physical therapy for \nthis problem. \n \nCONSULTATION/REFERRAL REQUEST \nPhysical therapy. \n \nMEDICAL CAUSATION \nThe cause of this problem appears to be related to work activities. \n \nRECOMMENDED WORK STATUS \nDina’s recommended work status is Restricted Duty. \nReturn  to  work  plan  discussed  with  patient  and  communicated  to \nthe employer. \n \nThe claimant was referred to physical therapy at that time. \n On January 24, 2025, the claimant was seen at Mercy Clinic Primary Care by APRN Paul \nPrince. Following is a portion of that medical record: \nCervical back: Normal range of motion. \nComments;  Decreased  vocal  spine  range  of  motion  in  all  planes. \nHas   muscle   spasms   of   both   upper   trapezius,   and   posterior \ncervicals,  as  well  as  levator  scapulae  on  the  left.  Decreased  range \nof  motion  of  the  wrist.  Is  unable  to  fully  supinate  and  pronate  her \nleft  arm.  Has  weakness  of  the  left  hand  and  wrist  following  an \nulnar distribution. \n \n The claimant was again seen by APRN Prince on March 11, 2025. At that time, an MRI \nof the claimant’s cervical spine was ordered. Following are portions of that medical record: \nHistory of Present Illness \nThe patient is a 52-year-old female who presents for follow-up on \nher neck, shoulder, and wrist pain. \n\nYugen – H403567 \n \n-7- \nShe reports persistent pain in her neck, shoulder, and wrist, which \nhas  not  shown  significant  improvement  despite  ongoing  physical \ntherapy. The pain originated from an injury sustained at the end of \nMay 2024, and she sought medical attention in June 2024. She was \nseen  here  on  01/24/2025.  She  has  retained  some  mobility  in  her \nfingers,  but  the  pain  radiates  from  her  shoulder  to  her  neck.  She \nhas  not  yet  consulted  with  Dr.  Johnson  for  an  EMG  due  to \ninsurance  constraints  requiring  completion  of  physical  therapy \nfirst. She has approximately 4 to 5 more physical therapy sessions \nremaining. Her workers’ compensation claim has been denied, and \nshe  is  currently  managing  her  medical  bills  through  a  payment \nplan.  She  is  doing  home  program  at  home.  She  does  not  have  a \npacemaker,  is  not  pregnant,  has  no  recent  brain  aneurysm  clips  or \nvascular  stents,  and  does  not  have  a  known  piece  of  metal  in  her \neye.  She  has  been  taking  gabapentin  at  night  but  reports  no \nnoticeable  relief.  She  has  not  attempted  to  take  it  during  the  day \ndue to potential drowsiness. Her physical therapy includes manual \ntraction,  which  she  finds  beneficial,  and  assisted  exercises.  She \nalso uses a TENS unit and heat application but is uncertain of their \neffectiveness. \n \n*** \n1. Cervicalgia. \nShe  reports  persistent  pain  in  her  shoulder  and  neck,  radiating \ndown  to  her  shoulder  blade,  with  limited  progress  from  physical \ntherapy. The pain is described as radiating from the shoulder to the \nneck  and  down  the  shoulder  blade.  An  MRI  of  the  cervical  spine \nfrom  2018  showed  some  abnormalities.  An  MRI  of  the  cervical \nspine will be ordered to further evaluate her condition. A referral to \nneurosurgery will be made, contingent upon the completion of the \nMRI. She is advised to contact Dr. Johnson’s office to schedule an \nEMG. The current dose of gabapentin will be continued, and she is \nencouraged  to  take  it  during  the  day  on  weekends  to  assess  its \nimpact on her daily activities, particularly driving. If tolerated, the \ndose may be increased. She is also advised to consider purchasing \na  TENS  unit  for  home  use  and  bring  it  to  physical  therapy  for \noptimal placement and usage. Physical therapy will be reordered to \ncontinue working with her. \n \n The claimant underwent an MRI of the cervical spine on April 2, 2025. Following are the \nfindings and impressions from that MRI as read by Dr. Jay Hedgecock: \nIMPRESSION: \n2 mm anterior sublaxation of C5 and C6 \n\nYugen – H403567 \n \n-8- \n \nMultilevel   degenerative   disc   disease,   canal   stenosis.   Neural \nforaminal encroachment as described above, most advanced at C4-\nC5. \n \n*** \nFINDINGS: \n2  mm  anterior  subluxation  of  C5  and  C6  is  identified.  There  is \nstraightening    of    the    normal    cervical    lordotic    curve.    Disc \ndesiccation   is   seen   at   each   level   the   cervical   spine   without \nsignificant    reduction    of    vertical    disc    space    height.    The \ncraniocervical  junction  is  normal.  The  cervical  cord  is  of  normal \ncaliber and signal characteristics throughout its length. \n \nC2-C3: Normal level \n \nC3-C4:  Normal  level.  Left  neural  foraminal  narrowing  due  to \nposterior projecting osteophytes. \n \nC4-C5:   Diffuse   posterior   annular   disc   bulge   and   marginal \nostephytic  ridging.  There  is  effacement  of  ventral  and  dorsal  CSF \nspaces, marked cord flattening and mild canal stenosis. The neural \nforamina   are   mildly   narrowed   bilaterally   due   to   posterior \nprojecting osteophytes. \n \nC5-C6:   Mild   canal   stenosis   secondary   to   a   diffuse   posterior \nannular  disc  bulge.  There  is  a  small  superimposed  central  disc \nprotrusion. There is effacement of the ventral CSF space, mild cord \nflattening  and  mild  canal  stenosis.  The  neural  foramina  are  patent \nbilaterally. \n \nC6-C7: Normal level. \n \nC7-T1: Normal level. \n \n On  April  8,  2025,  the  claimant  was  seen  by  Nurse  Practitioner  Kaitlyn  Terrell  at  Mercy \nRogers Neurosurgery. Following is a portion of that medical record: \nHISTORY OF PRESENT ILLNESS: \nDina  “Michelle”  is  a  52-year-old   female   presented   to   the \nneurosurgery  clinic  today  for  evaluation  of  symptoms.  Patient \nreports  that  this  is  a  result  of  an  injury  in  May  2024.  She  has \nworked   and   lifted   a   broken   luggage   off   a   charter   bus   and \nimmediately  felt  pain.  She  states  that  since  that  time  symptoms \n\nYugen – H403567 \n \n-9- \nhave  been  consistent.  She  states  that  she  has  left-sided  neck  pain \nthat radiates down into the left chest and into the axilla as well as \ndowns  the  back  of  the  left  side  of  the  neck  into  the  left  shoulder \nentire shoulder and then also down the left shoulder blade to below \nthis. She states that in the arm it radiates down into the tricep and \ndown  the  internal  arm  and  out  the  thumb  and  pointer  finger.  She \nstates most the pain is into the thumb joint. At first she was unable \nto close her fist on the left side as the pinky and ring finger would \nnot move correctly. She states that she is also starting to have some \ntenseness  and  pain  in  her  anterior  neck.  She  also  has  static  white \nnoise in her head at all times. She states she does have a little bit of \nright  sided  neck  pain  with  left  greater  than  right.  Patient  reports \nthat   the   pain   is   burning,   sharp/stabbing,   with   numbness   and \ntingling.  She  states  that  the  pain  is  a  jabbing  pain  along  with \nstiffness  and  tense.  She  reports  on  average  pain  is  5-6  out  of  10. \nShe    states    that    massage    makes    the    pain    better    while \nsleeping/working makes it worse. She does report she continues to \nhave  weakness  in  the  left  arm.  She  is  left  hand  dominant.  She \nstates she is dropping objects as well as has difficulty with opening \nobjects.  She  does  report  a  decrease  in  fine  motor  skills  and \ndecrease  in  handwriting.  She  does  report  a  decrease  in  grip  but \nthinks that this is related to thumb. She is not unsteady on her feet. \nPatient has been working with physical therapy and has completed \n7  sessions  at  this  time  and  has  completed  another  round  by  Dr. \nInjury.  She  has  tried  chiropractic  and  massage  therapy  which \nprovide  temporary  relief.  She  does  not  take  any  medications.  She \ndenies  Any  contacts.  Patient  has  any  bladder  or  bowel  continence \nany   saddle   anesthesia.   Patient   has   a   past   medical   history   of \ninsomnia, restless leg syndrome, asthma. \n \n*** \nASSESSMENT AND PLAN: \nMs. Yugen is a 60-year-old female presents the neurosurgery clinic \ntoday for evaluation of cervical radiculopathy and injury at work. I \nrecommend  patient  be  sent  to  pain  management  for  possible \nepidural  steroid  injections.  I  am  also  going  to  send  patient  for \ncervical flexion-extension x-rays today in office. Due to weakness \nin  the  left  hand  and  get  nerve  conduction  studies  EMG/NVS  for \nfurther  evaluation.  Patient  will  follow-up  in  approximately  12 \nweeks.   Patient   verbalized   understanding   all   questions   were \nanswered.  Patient  knows  she  may  contact  our  office  for  any \nquestions, concerns, worsening symptoms. \n \n1. Cervical radiculopathy (Primary) \nAMB REFERRAL TO PAIN CLINIC \n\nYugen – H403567 \n \n-10- \nAMB REFERRAL TO NEUROSURGERY \nXR CERVICAL SOINE 4 OR 5 VIEWS: Future \n \n2. Weakness of left arm \nAMB REFERRAL TO NEUROSURGERY \n \n Dr. Adam Green with  Mercy  Interventional  Pain  Clinic saw  the  claimant  on  April  30, \n2025, and performed an C6-7 cervical epidural steroid injection on the claimant with thorascopic \nguidance of his needle placement.  \n The claimant was then seen by CNP Brandi Flecter at Mercy Interventional Pain Clinic. \nFollowing is a portion of that medical record: \nHISTORY OF PRESENT ILLNESS: \nDina Michelle Yugen is 52 y.o. female who presents for follow-up \nmanagement of neck pain. She had C6/7 interlaminar ESI and she \nreports 50% relief, improved quality of life, and improved level of \nfunctioning since having these procedures.  \n \nPain is located in neck, left shoulder  and radiates into LUE to her \nhand.  Pain  is  rated  (using  a  Visual  Analog  Scale)  5-10  at  worse, \n2/10  at  best,  &  3/10  usually.  Pain  is  characterized  as  cramping, \nsharp/stabbing,  and  changes  with  severity  but  is  always  present. \nPain  is  aggravated  by  standing  and  exercise.  Pain  is  alleviated  by \nsitting, standing, heat, and touch/massage. \n \n*** \nPlan: \nXR left shoulder \nDiscussed left shoulder inj vs ESI after review of imaging \nContinue  with  OTR  meds  PRN – Tylenol,  ibuprofen,  Aspercreme \nwith lidocaine, Voltaren gel \nContinue HEP \nCounseling \n \n The claimant was again seen at Mercy Interventional Pain Clinic by APN Madhari Patel. \nFollowing is a portion of that medical record: \nCHIEF COMPLAINT: Neck pain and left shoulder pain \n \nHISTORY OF PRESENT ILLNESS:  \n\nYugen – H403567 \n \n-11- \nDina Michelle Yugen is a 52 y.o. female who presents for follow-\nup management of neck pain and left shoulder pain. \n \nPatient is s/p Left Glenohumeral Joint  Injection  with Steroid, Left \nAcromioclavicular Joint Corticosteroid Injections and reports 50% \nimprovement  in  pain  and  function  for  a  few  weeks  then  pain \nreturned to baseline. \n \nPain  is  rated  (using  a  Visual  Analog  Scale)  8/10  at  worse,  2/10  at \nbest, & 4/10 usually. Pain is characterized as cramping, numbness, \ntingling/pins and needles, and  changes with severity but is always \npresent.   Pain   is   aggravated   by   any   movement   and   changing \npositions. Pain is alleviated by heat and touch/massage. \n \nShe  continues  to  report  neck  and  shoulder  pain,  can  travel  to  her \nelbow. Feels tight/stiff in her neck, like her tongue gets stuck, her \njaw is stiff, she has been seeing PT and getting dry needling which \nhelps. She saw neurosurgery 08/20/25. \n \n*** \nPlan: \nPatient  has  tried  and  failed  3  months  of  conservative  treatment \nincluding  PT,  OTC  and  prescription  medications  and  injections \nand continues to experience shoulder pain. \nMRI   left   shoulder   without   contrast,   consider   ortho   referral \nthereafter. \nConsider repeat CESI \nContinue  to  OTC  meds  PRN – Tylenol,  ibuprofen,  Aspercreme \nwith lidocaine, Voltaren gel. \nContinue HEP. \n \n The  respondent  in  this  matter  has  filed  a  Motion  to  Supplement  the  Record  and  the \nclaimant has responded to that motion and the respondent then replied. The respondent as stated \nin  his  motion  has  moved  to  place  additional  medical  records  in  record  of  this  case  after  the \nconclusion of the hearing in this matter. After review of the motions submitted by both parties, I \nfind the addition of these medical records to be appropriate due to the respondent’s attempts \nprior to the hearing to collect them and the confusion of the claimant’s name change. \n\nYugen – H403567 \n \n-12- \nIn order to address adequately this matter under A.C.A. § 11-9-705(a)(1) (Repl. 2012) \n(Commission must “conduct the hearing . . . in a manner which best ascertains the rights of the \nparties”), I have blue-backed to the record documents from the Commission’s file on the claim, \nconsisting of 50 pages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \nArk. App. LEXIS 549, these documents have been served on the parties in conjunction with this \nopinion. I note that those medical records preexist the claimant’s alleged compensable cervical \nspine injury of May 21, 2024. \n The  claimant  has  asked  the  Commission  to  determine  if  she  sustained  a  compensable \nneck or cervical spine injury on or about May 21, 2024. \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n The  claimant  has  certainly  had neck  or  cervical  issues  that  predate  her  May  21,  2024, \nalleged  injury  date.  The  claimant  gave  testimony  as  such  and  medical  records  in  evidence \nsupport  her  prior  neck  or  cervical  spine  difficulties.  The  claimant  must  be  able  to  prove  by  a \npreponderance of the evidence the existence of objective medical findings regarding the injury to \nher neck or cervical spine she alleges. In the claimant’s May 28, 2024, medical record by APRN \nPrince he declines to treat her for her alleged work injury, stating, “I have discussed with her that \nwe did not get approval from her employer for evaluation of workers’ comp prior to this visit. \n\nYugen – H403567 \n \n-13- \nShe needs to follow-up with her employer regarding the symptoms in her neck.” However, in the \nAssessment  and  Plan  section  of  that  same  medical  record,  APRN  Prince  does  note,  “Neck \nmuscle spasm.” The claimant’s cervical MRI of April 2, 2025, reports several objective findings \nincluding a C4-C5 annular disc bulge and a C5-C6 diffused posterior annular disc bulge. \n The  claimant  is  able  to  prove  the  existence  of  objective  medical  findings.  The  claimant \nmust also prove a causal connection between the  incident she alleges and  the objective medical \nfindings.  The  claimant  testified  that  she  was  lifting  a  malfunctioning  side  compartment  on  the \nexterior  of  the  bus  she  was  to  drive  when  she  injured  her  neck  or  cervical  spine.  While  the \nclaimant  does  have  a  history  of  prior  difficulties  in  that  area  of  her  body,  reports  to  medical \nproviders have been consistent with her testimony and the objective medical evidence submitted \nin this record. I find that the claimant is able to prove a causal connection between her objective \nmedical findings and the incident she alleges. \n The  claimant  has  asked  the  Commission  to  determine  if  she  is  entitled  to  medical \ntreatment for her compensable neck or cervical spine injury. \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries, A.C.A.  §11-9-508(a).    However,  injured  employees \nhave  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  medical  treatment  is \nreasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \nI  have  reviewed  the  medical  evidence  in  this  matter  and  find  that  the  medical  treatment \nand evaluation of the claimant’s neck or cervical spine submitted and accepted into the record in \n\nYugen – H403567 \n \n-14- \nthis  matter  dated  after  May  21,  2024,  is  reasonable  and  necessary  medical  treatment  for  her \ncompensable neck or cervical spine injury. \n The respondent has asked the Commission to sanction the claimant under A.C.A. §11-9-\n717(b) in that the respondent alleges the claimant has failed to appear for a scheduled deposition. \nThe respondent’s motion is found at Respondents’ Exhibit 2, pages 1-3. The claimant’s response \nto that motion is found at Claimant’s Exhibit 4, page 1-3. The respondent’s reply in support of \ntheir motion is found at Respondents’ Exhibit 2, pages 5-8.  \n A.C.A. §11-9-717(b) states: \nAppropriate   sanctions,   including   the   amount   of   reasonable \nexpenses and attorney’s fees, may also be imposed against a party \nor its attorney which, without good cause shown, fails to appear for \na   hearing,   deposition,   or   any   other   matter   scheduled   by   the \ncommission   or   administrative   law   judge,   or   frivolously   joins \nanother party. \n \n This  is  a  singular  incident  which  the  claimant  states  she  was  unaware  of  the  deposition \nuntil  she  received  a  phone  call  about  the  deposition  on  that  very  day.  In  fact,  the  claimant  was \nworking  that  day  driving  a  bus  for  a  soccer team in  Pensacola,  Florida.  After  review  of  the \nevidence in this matter, I have determined that the respondent’s motion for sanctions under \nA.C.A. §11-9-717(b) should be denied. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n \n \n\nYugen – H403567 \n \n-15- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nMarch 10, 2025, and contained in a Pre-hearing Order filed March 13, 2025, are hereby accepted \nas fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  sustained  a \ncompensable injury to her neck or cervical spine on or about May 21, 2024. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  entitled  to \nreasonable and necessary medical treatment for her neck or cervical spine injury. \n 4. The respondent’s request for sanctions under A.C.A. §11-9-717(b) in that the claimant \nfailed to appear for a scheduled deposition is hereby denied. \n 5. The respondent’s motion to submit additional medical evidence is hereby granted. \n ORDER \nThe respondents shall pay the reasonable and necessary medical expenses associated with \nthe claimant’s May 21, 2024, neck or cervical spine injury, that is to include medical treatment \nand evaluation for that injury. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n \n\nYugen – H403567 \n \n-16- \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":29593,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H403567 DINA YUGEN, Employee CLAIMANT PINNACLE CAR SERVICE, INC., Employer RESPONDENT BROADSPIRE, Carrier RESPONDENT OPINION FILED JANUARY 12, 2026 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant re...","outcome":"granted","outcomeKeywords":["granted:5","denied:2"],"injuryKeywords":["neck","shoulder","cervical","wrist","back"],"fetchedAt":"2026-05-19T22:32:42.648Z"},{"id":"alj-H406062-2026-01-08","awccNumber":"H406062","decisionDate":"2026-01-08","decisionYear":2026,"opinionType":"alj","claimantName":"James Jones","employerName":"Ark Dept Of Transportation","title":"JONES VS. ARK DEPT OF TRANSPORTATION AWCC# H406062 January 08, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JONES_JAMES_H406062_20260108.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JONES_JAMES_H406062_20260108.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H406062 \n \nJAMES JONES, Employee CLAIMANT \n \nARK DEPT OF TRANSPORTATION, Employer RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 8, 2026 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Harrison, \nBoone County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by CHARLES H. MCLEMORE, Attorney at Law, Little Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On August 29, 2024, claimant reported an injury to his right knee on August 15, \n2023. Respondent has controverted that claim in its entirety. By letter dated March 25, \n2025,  claimant  requested  a  hearing  on  his  claim.  Claimant  did  not  complete  a \nprehearing  questionnaire;  therefore,  no  prehearing  conference  was  conducted,  and  a \nhearing was not scheduled. The file was returned to General Files until respondent filed \na motion to dismiss the claim on September 18, 2025. \n A hearing on the respondents’ Motion to Dismiss was scheduled for December \n18, 2025. Notice of the hearing was sent to claimant by certified mail at his last known \n\nJones – H406062 \n \n-2- \naddress and was delivered on October 20, 2025. Claimant did not appear at the hearing \nand has not responded to the respondents’ Motion to Dismiss. \n Pursuant  to  11  CAR §25-110(d) (previously  codified  as  Commission  Rule \n099.13), the Commission may enter an order dismissing a claim for want of prosecution. \nAfter my review of the respondent’s motion, the claimant’s failure to respond thereto or \nappear  at  the  hearing or respond to the respondents’ Motion to Dismiss,  and  all  other \nmatters properly before the Commission, I find that claimant has failed to prosecute this \nclaim. Therefore, this claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2088,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H406062 JAMES JONES, Employee CLAIMANT ARK DEPT OF TRANSPORTATION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED JANUARY 8, 2026 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Harrison, Boone County, Arka...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:32:34.383Z"},{"id":"alj-G701584-2026-01-07","awccNumber":"G701584","decisionDate":"2026-01-07","decisionYear":2026,"opinionType":"alj","claimantName":"Marie Baucom","employerName":"West Haven, Inc","title":"BAUCOM VS. WEST HAVEN, INC. AWCC# G701584 January 07, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BAUCOM_MARIE_G701584_20260107.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAUCOM_MARIE_G701584_20260107.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G701584  \n \nMARIE R. BAUCOM, EMPLOYEE CLAIMANT \n \nWEST HAVEN, INC., UNINSURED EMPLOYER RESPONDENT \n  \n \nOPINION FILED 7 JANUARY 2026 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 9 October 2025 in Pine Bluff, Arkansas. \n \nMr. Terence C. Jensen, Jensen, Young & Butler, PLLC, appeared on behalf of the claimant. \n \nMr. Joseph H. Purvis, Wright, Lindsey & Jennings, LLP, appeared on behalf of the \nrespondent. \n \nI. STATEMENT OF THE CASE \n \n A Prehearing Order was filed on 18 September 2025 and admitted to the record as \nCommission’s Exhibit No 1. For this litigation, and consistent with that Order, the parties \nagreed to the following at the hearing: \nSTIPULATIONS \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n 2. The Employee/Employer relationship existed at all relevant times. \n \n 3. The claimant’s average weekly wage would entitle her to temporary total  \n  disability (TTD) benefits of $237 per week and permanent partial disability  \n  (PPD) benefits of $170 per week. \n \n 4. The respondent has controverted this claim in its entirety. \n \nISSUES TO BE LITIGATED \n \n 1. Whether this claim should be dismissed under Ark. Code Ann. § 11-9-  \n  702(a)(4) for want of prosecution. \n \n 2. Whether the claimant sustained compensable injuries by specific   \n  incident on 8 February 2017. \n \n\nM. BAUCUM- G701584 \n2 \n \n 3. Whether the claimant is entitled to temporary total disability benefits from  \n  the date of the injury to a date yet to be determined. \n \n 4. Whether the claimant is entitled to medical benefits, including past and  \n  future treatment and reimbursable expenses. \n \n 5. Whether the claimant is entitled to an attorney’s fee. \n \n All other issues are reserved. \n \nCONTENTIONS \n \n The parties’ Contentions are set out in their respective Prehearing Questionnaire \nresponses: \n Claimant: \n \n The claimant contends that she sustained a compensable injury on \nFebruary 8, 2017. Claimant contends that this injury occurred on the \nemployer’s premises and at a time when the claimant was in furtherance of \nher duties with the employer and in furtherance of the necessary business \nactivities of the respondent. Claimant incurred significant burn injuries and \nwas hospitalized at Arkansas Children’s Hospital for approximately twenty-\ntwo days wherein she received extensive treatment for 2\nnd\n degree burn \ninjuries which covered approximately 19% of her body. Claimant has incurred \nsignificant medical expenses of approximately $109,000 which are the \nresponsibility of the respondent. Claimant was within her healing period \nfrom February 8, 2017, until June 22, 2017, and entitled to appropriate \ntemporary total disability benefits. Claimant will stipulate that the The \nrespondent is entitled to a credit for any medical bills paid and any \ntemporary total disability benefits voluntarily paid; however, approximately \n$109,000 of medical bills are currently owed by the respondent.  \n \n  The claimant reserves all other issues. \n \n Respondent: \n \nThe respondent contends that the claimant had signed off the clock and \nwas not working at the time that she was injured. The claimant did not sustain \na compensable injury within the meaning of the Workers’ Compensation Act. \nShe was not injured in the course and scope of her employment.  \n \nRespondent also contends that claimant was injured doing something \nthat she knew was specifically prohibited from doing and had been admonished \nseveral times about doing the act that she did. In addition to other matters, \nshe was in a place and position in the kitchen where she knew she was \nprohibited by institution rules and regulations as well as those of the state \nhealth department and had specifically been told not to do it.  \n\nM. BAUCUM- G701584 \n3 \n \n \n The respondent reserves the right to raise additional contentions, or to \nmodify those stated herein, pending the completion of discovery. \n \nII. FINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witnesses, observing their demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The Stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant has failed to prove by a preponderance of the evidence that she  \n  suffered any compensable injuries by specific incident.     \n  Specifically, she has failed to prove that she was acting in the course and  \n  scope of her employment when she was injured. \n \n4. Because the claimant has failed to prove a compensable injury, the remaining \n  issues are moot and will not be addressed in this Opinion. \n \nIII. ADJUDICATION \nThe stipulated facts as outlined above are reasonable and accepted. It is settled that \nthe Commission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \n\nM. BAUCUM- G701584 \n4 \n \nSUMMARY OF THE EVIDENCE \n The claimant and Charlene West testified at the hearing. Christine Cupples and \nBailey O’Dell testified via deposition. The respondent also called Ms. Karen Golden, a co-\nworker who was present on the day of the workplace accident, to testify at the hearing. The \nrecord consists of the hearing transcript and the following exhibits: Commission’s Exhibit \nNo 1 (the 18 September 2025 Prehearing Order); Claimant’s Exhibit No 1 (one index page \nand 19 pages of medical records); Claimant’s Exhibit No 2 (one index page and two pages of \nnon-medical records); Claimant’s Exhibit No 3 (two pages of correspondence from the \nCommission); Joint Exhibit No 1 (the deposition transcript of Cupples); Respondent’s \nExhibit No 1 (one page of an attendance record for the claimant); and Respondent’s Exhibit \nNo 2 (the deposition transcript of O’Dell). \n A. CLAIMANT MARIE R. BAUCUM’S TESTIMONY \n Respondent West Haven, Inc., (“West Haven”) is a residential care facility that was \npurchased by Charlene West on 12 January 2017. The facility had been in operation under \ndifferent ownership for some time preceding Ms. West’s purchase of the property. \n The claimant testified that she was employed by West Haven as a CNA (Certified \nNursing Assistant) Supervisor on the date of her accident. Her duties included “a little bit \nof everything; helping cook, helping clean, passing meds, all the things.” Residents at the \nfacility had “their own little houses,” while meal services and support with daily activities \nlike medication management were provided by facility staff. \n According to the claimant, she had been on-site for breakfast and dispensing \nmedicines on the morning of her accident. She then left to attend a morning class at the \nlocal community college campus before returning to the facility before lunchtime. She \ncorroborated her time sheet showing that she had been at work between 6:30 AM and 7:45 \n\nM. BAUCUM- G701584 \n5 \n \nAM and that she had signed back in at 10:00 AM. [Resp. Ex. No 1.] She denied signing back \nout at “12p” on the day of the accident, as reflected on the sheet: \nQ:  That is not your writing? \nA:  It is not. \nQ:  Okay. And tell me why you say that is not your writing. \nA:  Well because the 2 doesn’t match my other 2’s, and I put everything with \n“p.m.,” not just a “p.” \nQ:  Okay. And it looks as if you’re talking about the dates of 2-7 and 2-8, -- \nA:  Yes. \nQ:  -- and you clearly make a loop on your 2. \nA:  Yes, sir. \nQ:  Okay. And there’s no loop on this 2 at all, correct? \nA:  Correct. \n \n[TR at 28.] She went on to testify that she was on the clock and working at the time of her \naccident. \nQ:  Okay. And even besides being on the clock, were you performing duties or \nperforming work for your employer, West Haven? \nA:  I was. \nQ:  Okay. And tell me, if you will, what were you doing at the time of this \naccident? \nA:  So, I went into the kitchen to help serve. Bailey O’Dell was in there. She \nsaid that she couldn’t get the lid [of the pressure cooker] off the top and so, \nyou know, I went in to help her, ‘cause we had pat- -- residents, not patient – \nresidents in there that were ready to eat ‘cause it was lunchtime, and so I \nhelped her—well, I attempted to help her get the lid off. \n \n[TR at 29-30.]  \n She explained that the residents benefitted from maintaining regular schedules and \nthat scheduling disruptions, like a late meal service, could cause anxiety or other \nbehavioral problems with some residents. According to her testimony, the claimant went \ninto the kitchen to help because the lunch service was running behind. She said that Ms. \nO’Dell was the day’s cook and that Ms. O’Dell asked her for help with getting the lid off of \nthe pressure cooker that contained the day’s lunch. “The pressure release valve was \nreleasing like it was—there was no more pressure inside of it, so we thought it was stuck. \n\nM. BAUCUM- G701584 \n6 \n \nNeither of us had ever used a pressure cooker before, so I did not know that there was \npressure behind it.” [TR at 34.] Her testimony continued: \nQ:  Okay. Now tell me what happened when you’re trying to get the lid off. \nA:  It exploded. \nQ:  Okay. And when it exploded, what happened? \nA:  It covered me and got on Bailey’s leg. It covered the front side of my body \nand got on my face... \nQ:  Okay. And then after that, did you seek medical attention? \nA:  I did. I—I threw off all my clothes and was running around. Christine had \ncame in the door, and she was taking me to the hospital, and she drove me to \nthe [Dewitt] hospital. \n[...] I was treated as [best as] they could at the smaller facility, and then was \nsent by ambulance to Arkansas Children's Hospital Burn Unit. \nQ:  Okay. And I understand you spent quite some substantial period of time \nin the Burn Unit at Arkansas Children's Hospital? \nA:  Yes, sir, almost a month. \n \n. . .  \n \nQ:  ... And tell me, did you have any conversations about your injury with \nCharlene West? \nA:  Yes, sir. When I was at the hospital [...] she had asked me to say that I \nwas not on the clock and that she would just pay me for the time that I was \noff. \nQ:  Okay. And did you agree to do that? \nA:  I did not. \nQ:  Okay. Did you ever understand why Ms. West wanted you to say that you \nwere off the clock? \nA:  I did not. \nQ:  Did you find out later that Ms. West didn’t carry insurance? \nA:  I did later on. \nQ:  And she was, in fact, an uninsured employer? \nA:  Yes, sir. \nQ:  And that she didn’t have any insurance to cover for your medical bills or \nfor your treatment of your time off, is that right? \nA:  Yes. \n \n. . .  \n \nQ:  Okay. All right. And were you off work for at least a while? \nA:  I was. \nQ:  Okay. And were you paid compensation by anyone while you were off \nwork? \nA:  I received one check the week after I got burned, from Charlene. \n \n\nM. BAUCUM- G701584 \n7 \n \n[TR at 35-37.] She clarified that the check she received was only for the time she had \nactually worked. She denied receiving any payment related to the time that she was unable \nto work due to her injuries. Her employment was apparently terminated at some time after \nthe accident. \n On cross-examination, the claimant denied that she was assigned to work \nhousekeeping the day of the accident. She also denied that she was trying to open the \npressure cooker to feed only herself. She reiterated that after returning from her morning \nclass, consistent with her class schedule [Cl. Ex. No 2], she planned to remain at the facility \nand on-duty through the remainder of the work day, until she had class again that evening. \n B. CHARLENE WEST’S TESTIMONY \n Charlene West testified that she was the owner of West Haven and that she had \ntaken control and responsibility for the facility in the several weeks preceding the \nclaimant’s accident. She acknowledged not having workers’ compensation insurance in \nplace at the time of the accident. She explained that that she mistakenly believed coverage \nhad been secured along with the other insurance products that she had in place since \ntaking over. \n Ms. West testified that employees were not supposed to handle housekeeping and \nfood service duties at the same time due to state regulations. Ordinarily, one person was \nassigned to do the meal preparation and cooking and one or two other people would be \nassigned to assist outside of the kitchen with serving the residents. Meals were passed from \nthe kitchen via a Dutch door that had shelf on its lower half where plates and bowls could \nbe placed. “It’s explicitly written in the state regs. If you did housekeeping, it’s ‘cause \nthere’s cross-contamination. You cannot be cleaning rooms and then serve food or go in the \nkitchen.” [TR at 62.] She testified with certainty that the claimant was assigned to \nhousekeeping duties on the day of the accident. Another employee, Christine Cupples, was \n\nM. BAUCUM- G701584 \n8 \n \nresponsible for cooking on the day of the accident. According to the respondent, Ms. Cupples \ncomplained to her immediately before the accident about the claimant and Ms. O’Dell \ntrying to get the lid off the pressure cooker: “Ms. Cupples, she said, ‘They won’t listen to me. \nThey’re trying to get...’ And then boom.” [TR at 67.] \n  Immediately after the accident, the respondent told Ms. Cupples to take the \nclaimant to the emergency department. The local hospital provided care before transferring \nthe claimant to Arkansas Children’s Hospital. Ms. West believed that the claimant was off \nthe clock at the time of the accident. \n According to Ms. West, she paid the claimant her normal weekly wages during that \ntime that she was in the hospital. Copies of the checks she testified about were not offered \ninto evidence.  \n On cross-examination, Ms. West confirmed that during meal service, one employee \nwould usually be responsible for cooking, while another employee or two would be \nresponsible for actually serving the food to the residents. All employees, however, were \nbeing cross-trained to help cover all of the facility’s staffing needs, as might be required for \nscheduling. Staff coverage and scheduling needs had to conform with state regulations. She \nsaid that on the day of the accident, Ms. O’Dell would have been the only employee assigned \nto serve food. She acknowledged that the day’s lunch was inside of the pressure cooker and \nthat the cooker would need to be opened in order for the residents to be fed.  \n Lastly, Ms. West acknowledged that the time sheet purporting to show the \nclaimant’s hours on the day of the accident appeared to have different-looking entries for \nthe claimant’s sign-out; but she denied forging the record. \n C. MS. KAREN GOLDEN’S TESTIMONY \n Ms. Golden testified that she is an employee of the respondent, and that had worked \nat the facility before it was acquired by Ms. West. At around the time of the accident, she \n\nM. BAUCUM- G701584 \n9 \n \nwas working as a Personal Care Assistant and was responsible for helping residents with \neverything from their medication management to their dressing and laundry. She was \nworking at the front office with Ms. O’Dell on the day of the accident. \n She recalled that she was planning to cover the claimant’s shift during the afternoon \nof the accident so that the claimant could attend a school event. She testified that she saw \nthe claimant sign out before the accident and that the claimant was going to the kitchen to \nget some lunch with Ms. O’Dell before leaving for the day. She also testified that staff were \nnot allowed to eat until after all of the residents were served their meals. \n D. MEDICAL AND DOCUMENTARY EVIDENCE \n Records from Arkansas Children’s Hospital show that the claimant underwent \nsurgery on 14 February 2017. According to the Operative Note: \nPOSTOPERATIVE DIAGNOSIS: 19% total body surface area scald burns \nbilateral upper extremities, anterior torso, bilateral lower extremities. \n \nOPERATION PERFORMED: Excisional debridement, wound bed \npreparation to 3% total body surface area, left arm 570 sq cm and 5% total \nbody surface area anterior chest, 960 sq cm. \n \n A Discharge Report shows that the claimant was admitted on 8 February 2017 and \ndischarged on 24 February 2017. In pertinent part, that report includes: \nCONDITION: Good \n \nDISCHARGE DISPOSITION: Home \n \nPROBLEMS: ... Onset Acute pain due to trauma, Acute Impaired activities of \ndaily living, Acute Neuropathic pain, Acute second degree burn of chest wall, \nAcute second degree burn of face, Acute second degree burn of left arm, Acute \nsecond degree burn of left arm, Acute second degree burn of left leg, Acute \nsecond degree burn of neck, Acute second degree burn of right arm, Acute \nsecond degree burn of right leg. \n \nPROCEDURES: Excisional debridement and autograft of left arm 3% TBSA \nand anterior chest 5% TBSA. \n \nHOSPITAL COURSE: Ms. Baucom is a 31 years of age Caucasian female who \npresented to ACH burn unit from the referring facility after sustaining 8.5% \n\nM. BAUCUM- G701584 \n10 \n \nTBSA Second degree burns to her anterior chest and upper extremities from \na pressure cooker. The patient works at an assisted living facility where she \nwas helping prepare lunch for her tenants. The pressure cooker was on for \nabout 30 minutes whenever she tried to release the pressure. The cooker then \nbroke open causing the patient and another worker to suffer scald burns. The \npatient went to her local ED where double antibiotic and xenoform gauze was \nplaced over her burns, a tetanus toxoid shot was given, a foley catheter was \nplaced, and she was sent to ACH burn unit for further care. \n... \nOn 2/9/17, pt underwent deep sedation procedure for further evaluation and \ndisposition of burn wounds. Pt tolerated the procedure well, without any \nsignificant adverse events. Initially, Pt was going to [be] placed in Santyl and \nmonitored until her next deep sedation before the decision was made for \nconservative treatment vs surgery. Her pain medication doses were adjusted \nover the next few days to provide relief. On 2/13, she underwent another deep \nsedation, and at that time, it was decided that she would need an operation. \n \nOn 2/14/17, she went to the OR for excisional debridement, wound bed \npreparation, and autografting to BUE and shoulders. She tolerated the \noperation well without any adverse events. She did have difficulty with pain \ncontrol during the postoperative period, but her medications were adjusted to \nprovide relief. She underwent another deep sedation 2/19 for staple removal \nand dressing change. At this point, her pain medications were slowly weaned \nto a point where she could tolerate dressing changes with home medications. \nShe was ambulating the hallways and meeting nutritional requirements. She \nwas able to tolerate yesterday’s dressing changes with PO medications. Her \nroommate has been at bedside and has agreed to assist with wound care at \nhome. Also of note, she states that she has a large church family that \nincludes some nurses who can help with wound care as well. She will be \ndischarged home today and will follow up in ACH burn clinic in 7-10 days. \n \n A Burn Reconstruction Clinic Note dated 23 June 2017 includes, in pertinent part, \nthe following: \nHPI: ... At her last clinic visit on 3/23/2017, she had healed and was fitted for \ncustom garments. We prescribed her gabapentin 600 mg morning and noon \nand 900 at night to see if this would help with her neuropathic pain. She was \nalso given outpatient occupational therapy referral due to decreased range of \nmotion. She also had a band noted to her left axilla for which she was given \nneoprene to use at night. The patient called last week and stated that she \nwould like to be weaned off her gabapentin. So we began to have her decrease \nher dosage down to 600 three times a day. We did evaluate her today in our \nclinic. She states that she has had some increased pain to her left upper arm \nsince decreasing her gabapentin down. She is not sure if this is due to the \nchange of her dosing. At this time she has been going to occupational therapy \nand feels she has increased range of motion back to normal. \n \n. . .  \n\nM. BAUCUM- G701584 \n11 \n \n \nPLAN: We will continue with the gabapentin 600 mg 3 times a day. I have \ninstructed the patient if in 1 week the pain to her arm has not decreased, we \ncan go back up on her gabapentin to 900 mg at night and 600 mg in the a.m. \nand at noon time. The patient was instructed at this time I do not think she \nhas to continue with occupational therapy and can be discharged per their \nrecommendations. I consulted our physical therapist today to remeasure her \nfor her custom garments and we discussed the use of neoprene over the \nhypertrophic scarring to her chest. The therapist indicated that when she \nreturns to be fitted for custom garments they will at that time fit the \nneoprene as well. She was reminded about scar massage and SPF use greater \nthan 50 when out in the sun. I do think at this time since her range of motion \nhas improved she could return back to work. She was given a note for this. \nWe will have her return back to our plastic clinic to be evaluated again in 3 \nmonths. \n  \n[Cl. Ex. No 1.] \n The claimant also introduced a copy of the schedule of college courses she was \nenrolled in at the time of her accident [Cl. Ex. No 2]; and the respondents introduced a copy \nof a time sheet for the claimant on the day of her accident [Resp. Ex. No 1]. \n In response to the respondent’s assertion that the claim was filed after the \nexpiration of the statute of limitations, the claimant introduced copies of correspondence \nfrom the Commission, dated 8 March 2017, indicating that she had filed a Form AR-C \nrelating to an 8 February 2017 workplace injury. The claim number indicated in the \ncorrespondence (G701584) is the same as the claim number in the present matter. [Cl. Ex. \nNo 3.] \nDeposition of Christine Cupples \n The witness testified that she was working as the facility’s cook on the date of the \nclaimant’s accident. She recalled the lunch service running late because the lid would not \nrelease on the pressure cooker. She stated that over her objections, the claimant and Ms. \nO’Dell entered the kitchen and put the cooker on the floor. “So, then, that’s when I stepped \nout of the room to go find Charlene, and it just so happened that she was coming in the \nback door. She was right there, and just in that little period of time of me stepping away \n\nM. BAUCUM- G701584 \n12 \n \nand seeing Charlene coming in the back door, and I’m explaining to her, “Hey, you need to \ncome here. You know, they’re trying to get in this pressure cooker, and I don’t know how to \nget it open.” [Joint Ex. No 1 at 15-16.]  She testified further: \nQ:  Had—had you—you’d specifically told them not to open— \nA:  I told them not to open it. I told them just to leave it alone, and they just \nwouldn’t listen to me. \nQ:  Now, were you cooking that day, or was Bailey cooking? \nA:  I was cooking that day. [...] \nQ:  All right. All right. And you had told both Bailey and Maire to leave it \nalone, do not try to open it? \nA:  Yes. \n \n[Id. at 17-18.]  \nDeposition of Bailey O’Dell \n The witness stated that she was working as a CNA at the respondent’s facility on \nthe date of the claimant’s accident. She testified that assisting with food service was one of \nher job duties. According to her testimony, the claimant signed out before they went to the \nkitchen together to get some lunch. She explained that Ms. Cupples was assigned to the \nkitchen that day and that over the objection of Ms. Cupples, she and the claimant moved \nthe pressure cooker to the floor to try to force off the lid before it burst open. Ms. O’Dell was \nalso burned in the accident, but not as badly as the claimant. \n She explained that according to the facility rules, access to the kitchen was \nrestricted: \nA:  You cannot go into the kitchen at all. We could only be on the other side of \nthe door where the residents were to serve. That’s the only place we were \nsupposed to be. You can’t go from the floor to the kitchen or the kitchen to the \nfloor. \nQ:  Was that, like, a health regulation or whatever? \nA:  Yeah, I’m assuming. It’s by the nursing board all over the state that they \ndon’t allow you—you can’t go from the floor to the kitchen. It’s like—I don’t \nknow what the word is I’m looking for. It’s a health hazard, moral of the \nstory. \nQ:  But if you were out on the floor, you did not go to the kitchen? \nA:  You are not allowed to be in the kitchen. \nQ:  I see. \n\nM. BAUCUM- G701584 \n13 \n \nA:  If you’re scheduled for the kitchen, that’s the only person who is to be in \nthe kitchen at all times. \n \n. . .  \n \nQ:  Did you encounter [Ms. Cupples] that day? \nA:  Yes. She was the cook for the day. And she told us we couldn’t be in there. \nShe told us we could not be operating on the pressure cooker because it was \nnot done. \n \n[Joint Ex. No 1 at 10-12.]  \n On cross-examination, the witness said that the respondent paid her full wages \nduring the time that she was out with her own burn injuries. She also stated that the \nrespondent paid the claimant similarly for her time out.  \n According to Ms. O’Dell, the claimant was assigned to work housekeeping on the day \nof the accident. She went on to explain that she and the claimant went into the kitchen \neven though they knew that they were not supposed to be there. \nQ:  Why were you in the kitchen? \nA:  To get us something to eat. Me and Marie were hungry and Marie was \nleaving. And then, I was going to go ahead and eat before we served the \nresidents, which is wrong, as well, because the residents are to be served \nbefore anybody else. \nQ:  Had you ever done that before? \nA:  Never. \n. . . \nQ:  And after this accident, did you ever eat West Haven’s food before the \nresidents were served? \nA:  No. \nQ:  Do you know of anybody that ever did that, eat before the residents were \nserved? \nA:  Not that I can recall. \nQ:  Just something that you wouldn’t do? \nA:  No, we’re not allowed to do by law, by state law... \n. . . \nQ:  Although you hadn’t done it before, you’ve never done it after? \nA:  No. \nQ:  And you knew at the time it wasn’t right? \nA:  Correct. \nQ:  Would you intentionally violate a rule of the nursing home? \nA:  I did that day. \nQ:  Have you ever violated a rule before? \nA:  No. \n\nM. BAUCUM- G701584 \n14 \n \nQ:  Or after? \nA:  No. \n. . .  \nQ:  But your idea was to open up the pressure cooker and then help serve the \nmeal? \nA:  Our idea was to open the pressure cooker and then I [would] help serve \nbecause Maria was to leave. \nQ:  That’s exactly—your idea was to open the pressure cooker and then serve \nthe residents after that? \nA:  Correct, after we got a bowl of food. \n \n[Id. at 30-34.] \nDISCUSSION \nThe claimant alleges that she suffered compensable burn injuries to multiple body \nparts by specific incident on 8 February 2017. To prove a compensable injury by specific \nincident, she must establish four (4) factors by a preponderance of the evidence: (1) the \ninjuries arose out of and in the course of her employment; (2) the injuries caused internal or \nexternal harm to the body that required medical services or resulted in disability or death; \n(3) the injuries are established by medical evidence supported by objective findings, which \nare those findings which cannot come under the voluntary control of the patient; and (4) the \ninjuries were caused by a specific incident identifiable by time and place of occurrence. \nMikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). If the \nclaimant fails to establish by a preponderance of the evidence any of these elements, then \ncompensation must be denied. Id. As explained below, the claimant has failed to prove by a \npreponderance of the evidence that she was injured in the course and scope of her \nemployment. \nA compensable injury is defined, in part, as an accidental injury which arises out of \nand in the course of employment. Ark. Code Ann. § 11-9-102(4)(A)(i). However, a \ncompensable injury does not include an injury “inflicted upon the employee at a time when \nemployment services were not being performed.” Id. §11-9-102(4)(B)(iii). \n\nM. BAUCUM- G701584 \n15 \n \nIn Williams v. Malvern Sch. Dist. Ark. Sch. Bds. Ass’n., 2025 Ark. App. 208, the \nCourt of Appeals recently explained: \nAn employee is performing employment services when he or she is \ndoing something that is generally required by his or her employer. Cont'l \nConstr. Co. v. Nabors, 2015 Ark. App. 60, 454 S.W.3d 762. We use the same \ntest to determine whether an employee is performing employment services as \nwe do when determining whether an employee is acting within the course \nand scope of employment. Pifer v. Single Source Transp., 347 Ark. 851, 69 \nS.W.3d 1 (2002). The test is whether the injury occurred within the time and \nspace boundaries of the employment when the employee was carrying out the \nemployer's purpose or advancing the employer's interest, either directly or \nindirectly. Id. Moreover, whether an employee was performing employment \nservices within the course of employment depends on the particular facts and \ncircumstances of each case. Ctrs. for Youth & Families v. Wood, 2015 Ark. \nApp. 380, 466 S.W.3d 422. \n  \n Here, the claimant was certainly at her workplace when the accident occurred. And \nher burns were no doubt caused by the pressure cooker exploding (at her apparent \ninstigation) that day. But there is a factual dispute as to whether the claimant was acting \nin the course and scope of her employment at the time of the accident that caused her \ninjuries. The claimant, for her part, claims that she was working on the clock at the time of \nthe accident, trying to help with preparing a lunch that was running behind schedule and, \nthus, advancing her employer’s interests. The respondent, on the other hand, argues that \nthe injuries are not compensable because she had signed out of work for the day and \nbecause she was violating workplace policy and direct instructions at the time of the \naccident. Because she was acting in violation of workplace rules, they argue, she was acting \noutside of the course and scope of her employment at the time of the accident. \n In Arkansas State Police v. Davis, 45 Ark. App. 40, 870 S.W. 2d 408, 1994 Ark. App. \nLEXIS 81, our Court of Appeals reviewed the facts around an employee who was injured \nwhile working in violation of workplace policy. In that case, the Court stated: \n Section 31.00 of 1A A. Larson, The Law of Workmen's Compensation \n(1993) provides that \"when the misconduct involves a prohibited overstepping \n\nM. BAUCUM- G701584 \n16 \n \nof the boundaries defining the ultimate work to be done by the claimant, the \nprohibited act is outside the course of employment.\" Likewise, § 31.14(a) \nprovides that: \n \nIt has already been observed that the modern tendency is to bring \nwithin the course of employment services outside regular duties \nperformed in good faith to advance the employer's interests, even if this \ninvolves doing an unrelated job falling within the province of a co-\nemployee. This, of course, assumes that no prohibition is thereby \ninfringed. But if the unrelated job is positively forbidden, all connection \nwith the course of the claimant's own employment disappears, for he \nhas stepped outside the boundaries defining, not his method of working, \nbut the ultimate work for which he is employed. \n \n Larson's discusses the case of Fowler v. Baalmann, 361 Mo. 204, 234 \nS.W.2d 11 (1950), which applies the principles above. We find the case of \nFowler illustrative. In that case, the decedent, James Fowler, a flight \ninstructor for Baalmann, Inc., was forbidden to fly on a particular night of \nbad weather by his superior and was aware that the flight had been canceled. \nHowever, the decedent proceeded with the flight which resulted in his death. \nIn denying benefits the Missouri Supreme Court observed: \n \nMere disobedience of an order as to the detail of the work in hand or the \nmere breach of a rule as to the manner of performing the work are not \ngenerally sufficient to deprive an employee of his right to compensation \nso long as he does not go out of the sphere of his employment. But \ncompensation cannot be allowed when the employee goes outside of the \nsphere and scope of his employment and is injured in connection with \nan activity he has been expressly forbidden to undertake. \n. . . \nAn employer has the unqualified right to limit the scope of a servant's \nemployment and activity and to determine what an employee shall or \nshall not do. The employer likewise has the unqualified right to \ndetermine when an employee shall do a certain thing. The prohibition \nwhich the employer laid down in this case (the direct order expressly \ncanceling the flight) goes deeper into the relationship of the parties \nthan any mere rule, for it severed utterly and terminated completely \nthe employer-employee relationship for the day. \n \n I find Davis to be instructive. In that case, the Court reversed a finding of a \ncompensable injury for a police officer shot during a drug bust when the evidence showed \nthat he was suspended from duty and should not have been performing any police work at \nthe time he was injured.  \n\nM. BAUCUM- G701584 \n17 \n \n Similarly, in Pratt v. Landers McLarty Bentonville, 2021 Ark. App. 184, 2021 Ark. \nApp. LEXIS 182, the Court of Appeals affirmed a finding that an employee was not \nperforming employment services when he was injured while walking across a culvert in \nviolation of a workplace policy prohibiting the same. Because the claimant was “in direct \nviolation of the respondents’ policy,” he was not performing employment services at the \ntime of his injury. Id. \n Here, the credible evidence shows that West Haven’s rules limited who could be \nworking in the kitchen during the day. Employees assisting with meal service had to \nremain outside of the kitchen. The testimony reflected that State health and safety rules \nrequired compliance with that rule.  \n The claimant’s assertion the Bailey O’Dell was the cook that day is not credible and \nstands against the testimony of the other witnesses. Ms. West, Ms. Cupples, and even Ms. \nO’Dell (whom the claimant testified was cooking that day) testified that Ms. Cupples was \nthe cook assigned for that day, and that facility rules prohibited the claimant from being in \nthe kitchen at the time. Additionally, Ms. Cupples testified that at the very moment the \naccident occurred, she had stepped out of the kitchen to bring in Ms. West because the \nclaimant was refusing to follow directives that she leave the cooker alone. To put it another \nway, Ms. Cupples was attempting to report that the claimant’s behavior was not only \ndangerous, but in violation of the facility’s rules. And according to the testimony of Ms. \nO’Dell, she and the claimant knew that they were in violation of the facility’s rules at the \ntime of their actions. Employers clearly have an interest in promulgating rules for the \nsafety of their employees and the clients they serve; and they certainly have an interest in \npromulgating rules to comply with statutory and regulatory requirements related to their \nbusiness functions. The respondent’s rules around restricting access to the kitchen are \nconsistent with those interests, and the evidence shows that those rules were known to the \n\nM. BAUCUM- G701584 \n18 \n \nrespondent’s employees at the time of this workplace accident. I, therefore, find that the \ncredible evidence establishes that the claimant was in violation of workplace rules by being \nin the kitchen and acting against the directions of the day’s cook when she pried the lid off \nthe cooker and caused the accident that resulted in her burns.  \n Because the claimant was acting in violation of the facility’s rules at the time of the \naccident, her conduct was outside of the course and scope of her employment. See Davis, \nsupra. Having failed to satisfy that element proving a compensable injury by specific \nincident, her claim must fail. In the absence of a finding of a compensable injury, the other \nissues are moot and will not be addressed in this Opinion. \nIV.  CONCLUSION  \n The claimant has failed to prove by a preponderance of the evidence that she \nsuffered compensable injuries by specific incident. Accordingly, this claim for initial \nbenefits is DENIED and DISMISSED. \nSO ORDERED. \n      ________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":37521,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G701584 MARIE R. BAUCOM, EMPLOYEE CLAIMANT WEST HAVEN, INC., UNINSURED EMPLOYER RESPONDENT OPINION FILED 7 JANUARY 2026 Heard before Arkansas Workers’ Compensation Commission Administrative Law Judge JayO. Howe on 9 October 2025 in Pine Bluff, Arkansas. Mr....","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["back","neck"],"fetchedAt":"2026-05-19T22:32:32.316Z"},{"id":"alj-H405788-2026-01-06","awccNumber":"H405788","decisionDate":"2026-01-06","decisionYear":2026,"opinionType":"alj","claimantName":"Blaine Wilson","employerName":"Greenbriar Co., Inc","title":"WILSON VS. GREENBRIAR CO., INC. AWCC# H405788 January 06, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Wilson_Blaine_H405788_20260106.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Wilson_Blaine_H405788_20260106.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H405788 \n \n \nBLAINE WILSON, EMPLOYEE CLAIMANT \n \nGREENBRIAR CO., INC., \nEMPLOYER RESPONDENT \n \nSENTRY CASUALTY. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 6, 2026 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on January  2,  2026, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Jarrod  S.  Parrish,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This   matter   comes  before  the   Commission   on  the   Motion   to   Dismiss   by \nRespondents.    A  hearing  on  the  motion  was  conducted  on January  2,  2026,  in \nJonesboro, Arkansas.  No testimony was taken in the case.  Claimant, who according to \nCommission records is pro se, failed to appear at the hearing.  Admitted into evidence \nwas Respondents’ Exhibit 1, pleadings, correspondence and forms related to this claim, \nconsisting of one index page and nine numbered pages thereafter.  In addition, in order \nto  address  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1)  (Repl. \n2012)(Commission must “conduct the hearing . . . in a manner which best ascertains the \nrights  of  the  parties”),  and  without  objection,  I  have  blue-backed  to   the   record \ndocuments  from  the  Commission’s  file  on  the  claim,  consisting  of 13 pages.    In \n\nWILSON – H405788 \n \n2 \n \naccordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS \n549, these documents have been served on the parties in conjunction with this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on September  6,  2024,  Claimant \npurportedly  suffered  an  injury  to  his left  shoulder  and  forearm when  he fell  while \ndescending a ladder at work on June 11, 2024.  According to the Form AR-2 that was \nalso filed on September 6, 2024, Respondents accepted the claim as compensable and \npaid medical and indemnity benefits pursuant thereto. \n On November 19, 2024, through then-counsel Mark Alan Peoples, Claimant filed \na  Form  AR-C.    Therein,  he  alleged  that his client injured  his head,  neck,  and  left \nshoulder in a “work accident” that allegedly took place on June 11, 2024.  All boxes on \nthe  form  were  checked  to  indicate  that  Claimant  was  seeking  all  manner  of  initial (but \nnot  additional) benefits.  In  an  email  accompanying  this  filing,  Peoples  stated  that  he \nwas “not asking for a hearing at this time.”  Respondents’ counsel made an entry of \nappearance on December 9, 2024. \n In  an email  to  the  Commission  sent  on January  18,  2025, Peoples moved  to \nwithdraw  from  the  case.    In  an  Order  entered  on February  12,  2025,  the  Full \nCommission granted the motion under AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until October 28, \n2025.   On that date, Respondents filed  the instant motion and brief  in  support  thereof, \nasking for dismissal of the claim under 11 C.A.R. § 25-110(d)) and Ark. Code Ann. § 11-\n\nWILSON – H405788 \n \n3 \n \n9-702  (Repl.  2012) due  to  Claimant’s  alleged  failure  to  make  a  bona  fide  hearing \nrequest within six months of the filing of the Form AR-C.  The file was assigned to me \non October  29,  2025;  and  on  that  same  date,  my  office  wrote  Claimant,  asking  for  a \nresponse  to the motion  within  20  days.    The  letter  was  sent  by certified  and first-class \nmail to the Paragould, Arkansas address of Claimant listed in the file and on his Form \nAR-C.  A “Mary Blount” signed for the certified letter on November 3, 2025; and the first-\nclass  mailing was  not  returned.   However,  no  response  from him to  the  motion  was \nforthcoming.    On November  19,  2025, a  hearing  on  the  Motion  to  Dismiss  was \nscheduled  for January  2,  2026,  at  1:00 p.m.  at  the Craighead County  Courthouse  in \nJonesboro.  The Notice of Hearing was sent to Claimant via first-class and certified mail \nto  the same address in  Paragould as  before.   In  this  instance,  the certified  letter was \nreturned  to  the  Commission,  unclaimed, on December 28,  2025; but the  one  sent  by \nfirst-class mail was not returned. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on January  2, \n2026.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared \nthrough counsel and argued for dismissal under the aforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other  matters \nproperly before the Commission, the following Findings of Fact and Conclusions of Law \nare hereby made in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n\nWILSON – H405788 \n \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under 11 C.A.R. § 25-110(d). \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  is  hereby  dismissed \nwithout prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) reads: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed   for   want   of   prosecution,   the   Commission   may,   upon \nreasonable  notice  to  all  parties,  enter  an  order  dismissing  the  claim  for \nwant of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. \n2012) must prove their entitlement to the relief requested—dismissal of the claim—by a \npreponderance  of  the  evidence.    This  standard  means  the  evidence  having  greater \nweight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As  shown  by  the  evidence  recounted  above,  (1)  the  parties  were  provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon; and (2) Claimant \n\nWILSON – H405788 \n \n5 \n \nhas  failed  to  pursue  his claim  because  he  has  taken  no  further  action  in  pursuit  of  it \n(including  appearing  at  the January  2,  2026,  hearing  to  argue  against  its  dismissal) \nsince the  filing  of  his Form  AR-C on November  19,  2024.    Thus,  the  evidence \npreponderates that dismissal is warranted under § 25-110(d).  Because of this finding, it \nis unnecessary to address the application of Ark. Code Ann. § 11-9-702(d) (Repl. 2012). \n That leaves the question of whether the dismissal of the claim should be with or \nwithout  prejudice.    The  Commission  possesses  the  authority  to  dismiss  claims  with \nprejudice.  Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 \n(1988).    The  Commission  and  the  appellate  courts  have  expressed  a  preference  for \ndismissals without  prejudice.   See Professional  Adjustment  Bureau  v.  Strong,  75  Ark. \n249,  629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for  a  dismissal \nwithout prejudice.  I agree and find that the dismissal of this claim should be and hereby \nis entered without prejudice.\n1\n \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the same \ncause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8029,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H405788 BLAINE WILSON, EMPLOYEE CLAIMANT GREENBRIAR CO., INC., EMPLOYER RESPONDENT SENTRY CASUALTY. CO., CARRIER RESPONDENT OPINION FILED JANUARY 6, 2026 Hearing before Administrative Law Judge O. Milton Fine II on January 2, 2026, in Jonesboro, Craighead Cou...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["shoulder","neck"],"fetchedAt":"2026-05-19T22:32:30.117Z"},{"id":"alj-H208573-2026-01-05","awccNumber":"H208573","decisionDate":"2026-01-05","decisionYear":2026,"opinionType":"alj","claimantName":"Donna Jackson","employerName":"Stagehands LLC","title":"JACKSON VS. STAGEHANDS LLC AWCC# H208573 January 05, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Jackson_Donna_H208573_20260105.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jackson_Donna_H208573_20260105.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC NO. H208573 \n \n \nDONNA MARIE JACKSON, EMPLOYEE CLAIMANT \n \nSTAGEHANDS LLC, \n EMPLOYER RESPONDENT \n \nOHIO SECURITY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 5, 2026 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on October 9, 2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr. Jason  M.  Ryburn,  Attorney  at  Law,  Little Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On October  9,  2025,  the  above-captioned  claim  was  heard  in Little  Rock, \nArkansas.    A  prehearing  conference  took  place  on August  4,  2025.   The Prehearing \nOrder entered that same day pursuant to the conference was admitted without objection \nas  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n The parties discussed the stipulations set forth in Commission Exhibit 1.  With a \nfifth reached at the hearing, they are the following, which I accept: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n\nJACKSON – H208573 \n2 \n \n2. The  employee/employer/carrier  relationship  existed  on  November  25, \n2022, when Claimant sustained a compensable injury to her left shoulder. \n3. Respondents accepted the above injury as compensable and paid medical \nand temporary total disability benefits pursuant thereto. \n4. Claimant’s  average  weekly  wage entitles  her  to compensation  rates of \n$429.00/$322.00. \n5. Respondents ceased paying Claimant temporary total disability benefits in \nOctober 2024. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  After the amendment of Issue No. 1, the following were litigated: \n1. Whether  Claimant’s  claim  for  an  alleged  neck  injury  is  barred  by  the \nstatute of limitations. \n2. Whether Claimant sustained compensable injuries to her neck and upper \nback by specific incident. \n3. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged compensable neck and upper back injuries. \n4. Whether Claimant sustained a compensable mental injury. \n5. Whether Claimant is entitled to reasonable and necessary treatment of her \nalleged compensable mental injury. \n6. Whether   Claimant   is   entitled   to   additional   temporary   total   disability \nbenefits. \n All other issues have been reserved. \n\nJACKSON – H208573 \n3 \n \nContentions \n The  respective  contentions  of  the  parties,  following  amendment  at  the  hearing, \nare as follows: \n Claimant: \n1. Claimant    contends   that   on    November    25,   2022,    she    sustained \ncompensable injuries to her neck, back, and left shoulder when she was \nstruck by a falling pipe. \n2. Claimant  further  contends  that  she  suffered a  compensable mental  injury \nin  the  form  of  post-traumatic  stress  disorder  as  a  result  of  the  above \nincident. \n3. Finally, Claimant contends that she is not only entitled to reasonable and \nnecessary treatment of her alleged compensable injuries, but to additional \ntemporary total disability benefits as well. \nRespondents: \n1. All appropriate benefits have been paid. \n2. Claimant did not sustain a compensable neck, back, or mental injury. \n3. The applicable  statute  of  limitations  bars  the claim for  an  alleged  neck \ninjury. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of Claimant and  to  observe her demeanor,  I  hereby  make  the  following \n\nJACKSON – H208573 \n4 \n \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  her \nclaim   for   an   alleged   neck   injury   was   timely   filed.  Instead,   the \npreponderance of the evidence establishes that this portion of Claimant’s \nclaim is time-barred under Ark. Code Ann. § 11-9-702(a)(1) (Repl. 2012). \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that she \nsustained a compensable injury to her upper back by specific incident. \n5. Because  of  Findings/Conclusions Nos.  3 and  4, supra, Claimant  has  not \nproven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nreasonable and necessary medical treatment of her alleged compensable \nneck and upper back injuries. \n6. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable mental injury under Ark. Code Ann. § 11-9-113 \n(Repl. 2012). \n7. Because of Finding/Conclusion No. 6, supra, Claimant has not proven by \na  preponderance  of  the  evidence  that  she  is  entitled  to reasonable  and \nnecessary treatment of her alleged compensable mental injury. \n6. Claimant  has not proven  by a  preponderance  of  the evidence  that  she  is \nentitled to additional temporary total disability benefits for any period. \n\nJACKSON – H208573 \n5 \n \nCASE IN CHIEF \n Summary of Evidence \n Claimant was the sole witness. \n In  addition  to  the Prehearing Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case were Claimant’s Exhibit 1, a compilation of her medical  records, \nconsisting  of one abstract/index  page  and 11  numbered pages  thereafter; Claimant’s \nExhibit  2,  another  compilation  of  her  medical  records,  consisting  of  one  page  of \nnarrative and nine numbered pages thereafter; Claimant’s Exhibit 3, another compilation \nof her medical records, consisting of one abstract/index page and 13 numbered pages \nthereafter; Claimant’s Exhibit 4, another compilation of her medical records, consisting \nof one abstract/index page and seven numbered pages thereafter; Claimant’s Exhibit 5, \nanother  compilation  of  her  medical  records,  consisting  of  one  page  of  narrative  and \nthree  numbered  pages  thereafter; Respondents’  Exhibit  1,  another  compilation  of \nClaimant’s  medical  records,  consisting  of  one  index  page  and 12 numbered  pages \nthereafter; and Respondents’ Exhibit 2, non-medical records, consisting of four pages. \nADJUDICATION \nA. Statute of Limitations \n Introduction.  As the parties have stipulated, Claimant sustained a compensable \ninjury to her left shoulder on November 25, 2022.  Her testimony was that on that day, \nfrom  a  great  height,  a  co-worker  dropped  a  metal  object\n1\n that  struck  her.    In  this \nproceeding, she has alleged that as a result of that same accident, her neck was injured \n \n1\nThe object was repeatedly termed a “pipe” in her medical records that are in \nevidence  and  in  Claimant’s  testimony.    However,  near  the  end  of  her  testimony, \nClaimant stated that the object was not hollow.  Moreover, she estimated its dimensions \n\nJACKSON – H208573 \n6 \n \nas well.  At the outset, Respondents have raised the affirmative defense that the statute \nof limitations bars this claim insofar as it relates to the alleged neck injury. \n Standards.  Respondents have controverted this claim to the extent that it is one \nfor  benefits  in  connection  with  an  alleged  neck  injury.   See  supra.   Arkansas  Code \nAnnotated  §  11-9-702(a)(1)  (Repl.  2012)  sets  out  the  applicable  statute  of  limitations \nconcerning a claim for initial benefits: \nA claim for compensation for disability on account of an injury, other than \nan occupational disease and occupational infection, shall be barred unless \nfiled with the Workers’ Compensation Commission within two (2) years \nfrom  the  date  of  the  compensable  injury.    If  during  the  two-year  period \nfollowing  the  filing  of  the  claim  the  claimant  receives  no  weekly  benefit \ncompensation  and  receives  no  medical  treatment  resulting  from  the \nalleged  injury,  the  claim  shall  be  barred  thereafter.    For  purposes  of  this \nsection, the date of the compensable injury shall be defined as the date an \ninjury is caused by an accident as set forth in § 11-9-102(4). \n \nThe burden rests on Claimant to prove that her claim was timely filed.  Stewart v. Ark. \nGlass  Container,  2010  Ark.  198,  366  S.W.3d  358; Kent  v.  Single  Source  Transp.,  103 \nArk. App. 151, 287 S.W.3d 619 (2008).  Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. \n2012), she   must   do   so   by   a   preponderance   of   the   evidence.    The   standard \n“preponderance  of  the  evidence”  means  the  evidence  having  greater  weight  or \nconvincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet \nCove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’s \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \n \nto be 2 to 2.5 inches in diameter and 2 to 2.5 feet long. \n\nJACKSON – H208573 \n7 \n \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Discussion.  None of the three Forms AR-C that were filed in this matter—which \nare contained on Respondents’ Exhibit 2 and bear filing dates of December 21, 2022, \nJuly 10, 2023, and September 22, 2025—makes any mention of a neck injury.  Because \nof this, their filing does not toll the running of the aforementioned statute of limitations.  \nSee Wynne v. Liberty Trailer, 2022 Ark. 65, 641 S.W.3d 621.  The following exchange \ntook place during Claimant’s cross-examination: \nQ. Speaking  of  Form  Cs,  none  of  the  Form  Cs  in  the  record  list  your \nneck, correct? \n \nA. I  guess  not.    I  though  the  neck  was  already  in  from  the  very \nbeginning, but apparently y’all say—I  mean,  I  have  some  medical \nrecord—I’m not sure if I gave him enough—that when Dr. Casey is \nlooking at the neck, too, but I’m not sure what she sent off to them.  \nNow I thought the neck was in play. \n \nThe  evidence  shows  that  the  first  time  that  Claimant  brought  to  the  attention  of  the \nCommission  that  she  was  claiming  an  alleged  neck  injury  as  a  result  of  the  stipulated \nNovember  25,  2022,  work-related  incident  was  during  the  August  4,  2025,  prehearing \ntelephone   conference.      Pursuant   to   that   conference,   as   referenced   above,   the \ncompensability  of  her  alleged  neck  injury  was  made  an  issue.   Assuming  only  for  the \nsake of argument that the August 4, 2025, Prehearing Order constitutes a “claim” for \npurposes of determining when the running of statute of limitations began to be tolled—\nsee Bryant  Sch.  Dist. v.  Aylor,  2011  Ark.  App. 173, 381  S.W.3d  895  (prehearing  order \nconstituted  a  claim  for  additional  benefits); Cook  v.  Southwestern  Bell  Telephone \n\nJACKSON – H208573 \n8 \n \nCompany,  21  Ark.  App.  29,  727  S.W.2d  862  (1987)—this  came  more  than  two  years \nafter the incident at issue.  Claimant has thus failed to prove by a preponderance of the \nevidence  that  her  claim  for  an  alleged  neck  injury  was  timely  filed.    Instead,  the \nevidence  preponderates  that  this  portion  of  her  claim  is  time-barred  under §  11-9-\n702(a)(1). \nB. Compensability \n Introduction.    Claimant  has also alleged  that  as  a  result  of the stipulated  work-\nrelated specific incident on November 25, 2022 , she also sustained   a   compensable \ninjury to her upper back.  Respondents deny that this alleged injury is compensable. \n Standards.   Arkansas Code  Annotated  § 11-9-102(4)(A)(i)  (Repl.  2012),  which  I \nfind applies here, defines “compensable injury”: \n(i)  An  accidental  injury  causing  internal  or  external  physical  harm  to  the \nbody  .  .  .  arising  out  of  and  in  the  course  of  employment  and  which \nrequires  medical  services  or  results  in  disability  or  death.    An  injury  is \n“accidental” only if it is caused by a specific incident and is identifiable by \ntime and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe  element “arising  out  of  .  .  .  [the]  employment” relates  to  the  causal  connection \nbetween the claimant’s injury and his or her employment.  City  of El  Dorado  v.  Sartor, \n21 Ark. App. 143, 729 S.W.2d 430 (1987). \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \n\nJACKSON – H208573 \n9 \n \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n Discussion.   I  have  closely  reviewed  Claimant’s  medical  records  that  are  in \nevidence.  They are devoid of objective findings of a back injury.  For that reason, she \ncannot  prove  by  a  preponderance  of  the  evidence  that  she  sustained  a  compensable \nupper back injury.  This portion of her claim must fail at the outset. \nC. Medical Treatment \n Introduction.    Claimant  has  alleged  that  she  is  entitled  to  reasonable  and \nnecessary medical treatment of her alleged neck and back injuries. \n Standards.    Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n\nJACKSON – H208573 \n10 \n \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.  As shown above, Claimant’s claim for an alleged neck injury is time-\nbarred,  while  her  alleged upper back  injury  has  not  been  established.    Therefore,  she \nhas not proven by a preponderance of the evidence her entitlement to reasonable and \nnecessary treatment of these alleged injuries. \nD. Mental Injury \n Introduction.  Claimant has also asserted that the stipulated work-related incident \nof  November  25,  2022,  caused  her  to  suffer  a  mental  injury as  well.    Respondents \ndispute this. \n Standards.  Arkansas Code Annotated § 11-9-113(a) (Repl. 2012) provides: \n(a)(1)  A  mental  injury  or  illness  is  not  a  compensable  injury  unless  it  is \ncaused  by  physical  injury  to  the  employee’s  body,  and  shall  not  be \nconsidered  an  injury  arising  out  of  and  in  the  course  of  employment  or \ncompensable   unless  it   is   demonstrated   by   a  preponderance  of   the \nevidence;  provided,  however,  that  this  physical  injury  limitation  shall  not \napply to any victim of a crime of violence. \n \n(2)  No  mental  injury  or  illness  under  this  section  shall  be  compensable \nunless  it  is  also  diagnosed  by  a  licensed  psychiatrist  or  psychologist  and \nunless the diagnostic of the condition meets the criteria established in the \n\nJACKSON – H208573 \n11 \n \nmost  current  issue  of  the  Diagnostic  and  Statistical  Manual  of  Mental \nDisorders [“DSM”]. \n \n Discussion.   The  version  of  the  DSM  that  was  in  effect  at  the  time  of  the \nNovember  25,  2022,  incident  was  the DSM-5-TR (5\nth\n ed. Text  Revision), which  was \nreleased by the American Psychiatric Association in March 2022. \n In considering whether Claimant was a “victim of a crime of violence,” and thus is \nrelieved from the requirement that she show that her alleged mental injury was caused \nby her physical injury, I note that she testified that a co-worker, whom she identified as \nRustin Braxton or Rustin Baxter (she was unsure of his last name), threatened her prior \nto  the  incident  at  issue.    Her  testimony  was  that  while  they  were  working  on  the \nAnastasia  concert  at  Reynolds  Hall  at  the  University  of  Central  Arkansas,  he  told  her \nthat he was going to drop a pipe on her; supposedly, he warned her to “[w]ear a hard \nhat.”  But  she  admitted  that  she  never  reported  to  law  enforcement  either  the  alleged \nthreat  at  Reynolds  Hall  or  the  alleged  battery\n2\n at  Robinson  Center  on November  25, \n2022,  where  she  suffered  a  stipulated  compensable  left  shoulder  injury  after  being \nstruck  by  a  falling  object.  After  considering  her  bare,  unsupported  testimony  on  this \nmatter,  and  having  had  a  chance  to  assess  her  credibility,  I  find  that  I  am  unable  to \ncredit  her  account.    Therefore,  in  order  to  prove  that  she  sustained  a  compensable \nmental  injury,  Claimant must establish,  inter  alia,  that  such  was  caused  by  her \ncompensable physical injury—namely, the one that the parties agree that she suffered \nto her left shoulder. \n At  the  hearing,  Claimant  testified  that  she  included  some,  but  not  all,  of  her \nmental health treatment records in her exhibit.  When she was seen at the University of \n\nJACKSON – H208573 \n12 \n \nArkansas  for  Medical Sciences (“UAMS”) on  January  17, 2023, a  report  was prepared \nthat reads in pertinent part: \nShe continues  to  suffer  with  ongoing  anger  and  anxiety  with  ongoing \nauditory hallucinations.  She states feeling “bad about the children” who \nare being targeted by sexual predators and upset that men are not being \nheld  accountable  for  their  behavior  .  .  .  Patient  with  known  history  of \nBipolar Disorder. \n \nAs a result of this visit to UAMS, Claimant was diagnosed as having a “Mood disorder” \nand was given an “Ambulatory Referral to Psychiatry/Mental Health.”  The  referral  in \nquestion  was  to  RPI  Behavioral  Health.    Nothing  in  the  above  report  points  to  her \nstipulated  compensable  left  shoulder  injury  as  being  the  cause  of  any  mental  health \nissue,  whether  it be her  bipolar disorder—which,  as  she acknowledged  at the  hearing, \nthis record shows was pre-existing—or the “mood disorder.” \n Included in  the  documentary  evidence are  letters  dated  August  26,  2024,  and \nOctober 3, 2024, from Kelsey McClellan, M.D., who identifies herself as board-certified \nas a general psychiatrist and as a child and adolescent psychiatrist.  Both letters reads \nin pertinent part: \nDonna  is  currently  a  patient  at  RPI,  and  I  am  the  treating  psychiatrist.    Donna \nwas  first  seen  in  our  clinic  on  04.30.2024  by  therapist  Melissa  Ingram,  and  last \nseen in my clinic on 08.26.2024 by myself, Dr. Kelsey McClellan.  They carry the \nfollowing diagnoses: \n \nDiagnoses: \n(309.81 / F43.10) Posttraumatic stress disorder \n(300.00 / F41.9) Unspecified anxiety disorder \n(780.59 / G47.8) Other specified sleep-wake disorder \n \n But, assuming only for the sake of argument that Claimant’s records support the \nPTSD  diagnosis  that  she  has  been  given, the evidence does  not  establish that it  was \n \n \n2\nSee Ark. Code Ann. §§ 5-13-201 et seq. (Repl. 2013). \n\nJACKSON – H208573 \n13 \n \ncaused  by  her  stipulated  compensable  left  shoulder  injury.   This  is  shown  by  the \nfollowing citation under the “Review of Systems” segment of Claimant’s RPI treatment \nrecords: \nTrauma:    Reports  physical,  emotional,  and  sexual  abuse  as  a  child; \nreports  co-workers  purposefully  dropped  a  pipe  on  her  at  work  after  she \nturned  them  in  for  suspected child  pornography;  reports  that  ex-husband \nvideo-taped her without her knowledge. \n \nTwo  of  these matters  are  clearly  unrelated to  the  claim  at bar.   For  that  reason  alone, \nonly  through  speculation  and  conjecture  could  I  causally  relate  her  PTSD  diagnosis  to \nher being struck by the metal object at work on November 25, 2022.  But this I am not \npermitted  to  do.   See  Dena  Construction  Co.  v.  Herndon,  264  Ark.  791,  796,  575 \nS.W.2d  155  (1979).   In  sum, Claimant  has  not  proven  by  a  preponderance  of  the \nevidence that she sustained a compensable mental injury. \nE. Mental Health Treatment \n Claimant has asserted that she is entitled to reasonable and necessary treatment \nof  her  alleged  PTSD.    But  because  she  has  not  established  that  she  suffered  a \ncompensable mental injury, she cannot show entitlement to this treatment, \nF. Temporary Total Disability \n Introduction.    Claimant  has  also  contended  that  she  is  entitled  to  additional \ntemporary total disability benefits.  Respondents deny that this is the case. \n Standards.  The compensable injury to Claimant’s left  shoulder is  unscheduled.  \nSee Ark. Code Ann. § 11-9-521 (Repl. 2012).  An employee who suffers a compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \nwithin  the  healing  period  in  which  she  has  suffered  a  total  incapacity  to  earn  wages.  \nArk.  State  Hwy.  &  Transp.  Dept.  v.  Breshears,  272  Ark.  244,  613  S.W.2d  392  (1981).  \n\nJACKSON – H208573 \n14 \n \nThe  healing  period  ends  when  the  underlying  condition  causing  the  disability  has \nbecome  stable  and  nothing  further  in  the  way  of  treatment  will  improve  that  condition.  \nMad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant \nmust demonstrate that the disability lasted more than seven days.  Id. § 11-9-501(a)(1). \n Discussion.  As the parties have stipulated, Claimant related in her testimony that \nas  a  result  of  her shoulder injury,  she  was  paid  temporary  total  disability  benefits  for \nnearly  two  years—until  October  2024.   She  is  seeking  additional  benefits  of  this  type \nfrom the date they were ended until she went to work for her father in January 2025—a \nperiod of approximately three months.  Even though she testified that her left shoulder \nwas continuing to bother her during this period, preventing her from going back to work \nalong  the  lines  that  she  performed  for  Respondent  Stagehands  LLC, this  changed  in \nJanuary when her father offered her work that she could do from a computer. \n The   above   notwithstanding,  the   evidence   before  me   shows   that   Claimant \nunderwent  a  functional  capacity  evaluation on  September  13,  2024, that  reflected  that \nshe  gave  an  unreliable  effort.    For  that  reason,  Dr.  Barry  Baskin wrote  on  September \n19, 2024: \nShe   is   released   from  my   f/u   [follow-up]   care.     She  has   (0%)   PPI \n[permanent   partial   impairment].      She   is   at   MMI   [maximum   medical \nimprovement] 9/19/24[.] \n \nThe Commission is authorized to accept or reject a medical opinion and is authorized to \ndetermine its medical soundness and probative value.  Poulan Weed Eater v. Marshall, \n79  Ark.  App.  129,  84  S.W.3d  878  (2002); Green  Bay  Packing  v.  Bartlett,  67  Ark.  App. \n332,  999  S.W.2d  692  (1999).    I  credit  the  opinion  of  Dr.  Baskin  regarding  this  matter, \nand find that the preponderance of the evidence establishes that Claimant reached the \n\nJACKSON – H208573 \n15 \n \nend of her healing period on September 19, 2024.  Since that was, per Stipulation No. \n5, prior to the cessation of her temporary total disability benefits, she has not proven her \nentitlement to additional such benefits for any period of time. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":26119,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC NO. H208573 DONNA MARIE JACKSON, EMPLOYEE CLAIMANT STAGEHANDS LLC, EMPLOYER RESPONDENT OHIO SECURITY INS. CO., CARRIER RESPONDENT OPINION FILED JANUARY 5, 2026 Hearing before Chief Administrative Law Judge O. Milton Fine II on October 9, 2025, in Little Rock, Pu...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["shoulder","neck","back"],"fetchedAt":"2026-05-19T22:32:25.977Z"},{"id":"alj-G906188-2026-01-05","awccNumber":"G906188","decisionDate":"2026-01-05","decisionYear":2026,"opinionType":"alj","claimantName":"Karen Manues","employerName":"La Darling Co. LLC","title":"MANUES VS. LA DARLING CO. LLC AWCC# G906188 January 05, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Manues_Karen_G906188_20260105.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Manues_Karen_G906188_20260105.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G906188 \n \n \nKAREN R. MANUES, EMPLOYEE CLAIMANT \n \nLA DARLING CO. LLC, \n EMPLOYER RESPONDENT \n \nINDEMN. INS. CO. OF NO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 5, 2026 \n \nHearing  before Chief Administrative  Law  Judge  O.  Milton  Fine  II  on January  2, \n2026, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by  Mr. Jason  M.  Ryburn, Attorney at Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on January  2,  2026, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   In \norder  to  address  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1) \n(Repl. 2012)(Commission must “conduct the hearing . . . in a manner which best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe  record documents from the Commission’s file on the claim,  consisting  of 22 \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \n\nMANUES – G906188 \n \n2 \n \nArk.  App.  LEXIS 549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed on September  20,  2019, \nClaimant  purportedly suffered an injury to her  left  leg at  work on September  9, \n2019, when some metal racks fell on her.  According to the Form AR-2 that was \nalso filed on September   9,   2019, Respondents accepted the injury   as \ncompensable  and  paid  medical  and  indemnity  benefits  pursuant  thereto.  As \nreflected by the original and amended Forms AR-4 that were filed on February 3 \nand 9, 2021, respectively, Respondents closed this matter as of that first date. \n In  a letter  to  the  Legal  Advisor  Division  of  the  Commission  received  on \nJanuary 27, 2025, Claimant wrote: \nI  am  writing  to  you  about  my  injury  in  September  of  2019.    I  need \nfurther medical assistance on this matter. \n \nPlease open my case.  I am requesting a hearing on this matter. \n \nBecause  Claimant  did  not send to  the  Commission  a  completed  Legal  Advisor \nQuestionnaire by the deadline, her file was returned to the Commission’s general \nfiles on March 3, 2025; and she was notified of that fact by first-class mail sent to \nthe  same  address  as she  furnished to  the  Commission  in her  January  27,  2025, \ncorrespondence. \n However,  Claimant  again  requested  a  hearing;  and  in  this  instance,  on \nMarch 10, 2025, she returned a completed questionnaire.  Respondents’ counsel \n\nMANUES – G906188 \n \n3 \n \nmade  his  entry  of  appearance  on  March  21,  2025.  Due  to  the  failure  at  an \nattempt to set up at legal advisor conference, the matter was reassigned to me on \nApril  1,  2025.    On  April  2,  2025,  I  sent  preliminary  notices  and  prehearing \nquestionnaires to the parties.  However, because Claimant failed to complete and \nreturn  either  document,  her  file was again returned to the Commission’s general \nfiles on May 6, 2025.  She was notified of this by first-class mail. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nOctober 16, 2025.  On that date, Respondents filed the instant motion, asking for \ndismissal of the matter under 11 C.A.R. § 25-110(d) (formerly AWCC R. 099.13).  \nThe  file  was  reassigned  to me  on October  17, 2025; and on that  same  date, my \noffice  wrote  Claimant,  asking  for  a  response  to  the  motion  within  20  days.    The \nletter  was  sent  by first  class  and  certified mail  to  the Corning,  Arkansas address \nthat Claimant had  used  on her  earlier correspondence  with  the  Commission.  \nSomeone  with  an  illegible  signature  claimed the certified  letter  on October 20, \n2025;  and the  first-class  letter  was  not  returned.    Regardless,  no  response  from \nClaimant to the motion was forthcoming. \n On November 7, 2025, a hearing on the Motion to Dismiss was scheduled \nfor January  2,  2026,  at  12:30 p.m.  at  the Craighead  County  Courthouse in \nJonesboro.    The  notice  was  sent  to  Claimant  via  first-class  and  certified  mail  to \nthe same address as before.  In this instance, the certified letter was claimed on \n\nMANUES – G906188 \n \n4 \n \nNovember  12,  2025,  by  someone  with  an  illegible  signature,  while  the  first-class \nletter was not returned. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared  through \ncounsel and argued for dismissal under the foregoing authority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. No Form AR-C has ever been filed in connection with this matter. \n4. No other document before the Commission in this matter constitutes \na  claim  for  additional  benefits under  Ark.  Code  Ann. § 11-9-702(c) \n(Repl. 2012). \n5. Respondents’ Motion to Dismiss is denied because no claim exists \nto be subject to dismissal. \n\nMANUES – G906188 \n \n5 \n \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) (formerly AWCC R. 099.13) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n No Form AR-C has been filed in AWCC No. H202191.  That is the means \nfor filing a “formal claim.”  While a Form AR-1  was  filed,  that  does  not  suffice  to \ninstigate a claim. \n Per Ark. Code Ann. § 11-9-702(c) (Repl. 2012): \nA claim for additional compensation must specifically state that it is \na  claim  for  additional  compensation.    Documents  which  do  not \nspecifically request  additional  benefits  shall  not  be  considered  a \nclaim for additional compensation. \n \n(Emphasis added)  See White Cty. Judge v. Menser, 2020 Ark. 140, 597 S.W.3d \n640.  Claimant’s January 27, 2025, letter to the Commission, quoted above, falls \n\nMANUES – G906188 \n \n6 \n \nshort  of  this  standard.    My  review  of  the  evidence  discloses no document \nsufficient to constitute a filing of a claim for additional benefits under the standard \ncited above. \n Because no claim has been filed, it follows that there is no claim subject to \ndismissal per Respondents’ motion.  The Motion to Dismiss thus must be, and \nhereby is, respectfully denied. \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, the Motion to Dismiss is hereby denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":8034,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G906188 KAREN R. MANUES, EMPLOYEE CLAIMANT LA DARLING CO. LLC, EMPLOYER RESPONDENT INDEMN. INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED JANUARY 5, 2026 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 2, 2026, in Jonesboro...","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:32:28.042Z"},{"id":"alj-H401401-2025-12-31","awccNumber":"H401401","decisionDate":"2025-12-31","decisionYear":2025,"opinionType":"alj","claimantName":"Cristina Garcia-Lopez","employerName":"George’s Processing Inc","title":"GARCIA-LOPEZ VS. GEORGE’S PROCESSING INC. AWCC# H401401 December 31, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GARCIA-LOPEZ_CRISTINA_H401401_20251231.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GARCIA-LOPEZ_CRISTINA_H401401_20251231.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H401401 \n \nCRISTINA GARCIA-LOPEZ, EMPLOYEE CLAIMANT \n \nGEORGE’S PROCESSING INC., EMPLOYER RESPONDENT \n \nCORVEL ENTERPRISE CLAIMS INC., CARRIER/TPA RESPONDENT \n \n OPINION FILED DECEMBER 31, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On October 9, 2025, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on February 20, 2025, and a pre-hearing order was filed on \nFebruary 24, 2025. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2 The employee/employer/carrier relationship existed on June 1, 2023. \n3.   The respondents have controverted the file in its entirety.  \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n           1.  Whether claimant sustained a compensable injury on or about June 1, 2023. \n           2.  If compensable, compensation rate. \n           3.  If compensable, whether claimant is entitled to temporary total disability benefits from  \n\nGarcia-Lopez-H401401 \n2 \n \n \nOctober 15, 2024, through January 6, 2025, and to additional medical benefits. \n           4.  Attorney fees.  \n All other issues are reserved by the parties. \n The claimant contends that “She  is  entitled  to  medical  treatment  for  her  left  shoulder, \nincluding surgery by Dr. Christopher Dougherty. Claimant contends she is entitled to temporary total \ndisability benefits. Claimant reserves all other issues.” \n The respondents contend that “Claimant was working for George’s when she alleged a June \n1, 2023, work related injury to her left shoulder. Respondents paid for initial treatment for the alleged \ninjury including an initial evaluation with Dr. Robert Macleod on October 19, 2023, where claimant \nwas referred for an MRI of her left shoulder. On November 14, 2023, claimant underwent another \nevaluation with Dr. Macleod at Ozark Orthopedics. According to Dr. Macleod, the left shoulder MRI \nrevealed  a  small  loose  body  with  no  evidence  of  a  rotator  cuff  tear. Thus, Dr. Macleod diagnosed \nclaimant with a loose body in the joint of the left shoulder region, and he opined, “she does not have \nthe classic mechanism for loose body with any reported history of fall or trauma to the shoulder from \nthe work...” Dr. Macleod went on to recommend a left shoulder arthroscopy removal of the loose \nbody.  On December 1, 2023, Dr. Macleod authored a letter addressing the major cause of claimant’s \nalleged left shoulder injury. Dr. Macleod stated, “she does not, again, have the normal mechanism for \na loose body and considering her work duties and job description with prior video review, I do not \nthink it is more than 51% likely that the foreign body is a result of her work as there is no one specific \nincident that seems to have started the pain... I think [it] is reasonable to have her proceed through \nher  regular  private  insurance  if  not  approved  through  work comp.” Thereafter,  on  March  3,  2024, \nrespondents  denied  the  claim  for  a  left  shoulder  injury  on  the  basis  that  it  was  not  a  work-related \ninjury, as supported by Dr. Macleod’s causation letter. Arkansas law is well settled that the burden is \n\nGarcia-Lopez-H401401 \n3 \n \n \non  the  claimant  to  establish  by  a  preponderance  of  the  evidence  a  causal  connection  between  the \nemployment and the claimed injury. Kelly v. Courtyard Marriott, 2011 Ark. App. 715, 386 S.W.3d 677 \n(2011). Respondent  contends  claimant  has  never  suffered  a  compensable  work-related  injury  or \naggravation to her left shoulder, rather claimant’s left shoulder symptoms are the result of a non-work-\nrelated,  non-compensable  personal  medical  condition. Therefore,  medical  benefits  and  indemnity \nbenefits should be denied.”  \n           From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe her demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nFebruary 20, 2025, and contained in a pre-hearing order filed February 24, 2025, are hereby accepted \nas fact. \n 2.     Claimant has met her burden of proving that she suffered a compensable injury to her \nleft shoulder on or about June 1, 2023, and is entitled to reasonable and necessary medical treatment \nfor that injury as recommended by her treating physicians \n 3.     Claimant has met her burden of proving she is entitled to temporary total disability \nfrom October 15, 2024, until January 6, 2025.  \n4.     Claimant’s compensation rate is based on her average weekly wage of $728.21, yielding \na temporary total disability rate of $485.00 per week.  \n FACTUAL BACKGROUND \n The prehearing order listed as the threshold issue “whether claimant suffered a compensable \n\nGarcia-Lopez-H401401 \n4 \n \n \ninjury  on  or  about June 1, 2023.” The  order  did  not  specify  that this  was  a gradual-onset  claim. \nHowever,  before  the  testimony  began, claimant  pointed  out  that  she alleged the injury was “on or \nabout June 1, 2023” and was making a claim for a gradual-onset injury.  Both affirmed they were there \nto present or defend those issues as clarified. I am satisfied respondent was aware the nature of the \nclaim was a gradual-onset injury and was not surprised by the clarification of that issue at the hearing.   \nHEARING TESTIMONY \n \nClaimant  was  the  only  witness  to  testify  at  the  hearing.  Her  job  involved  sorting  meat  and \nplacing the various pieces into boxes. When a box filled, she stacked it on top of another box, then \nput an empty box in its place. She testified that the meat was coming down in front of her rapidly and \nshe spent all day in repetitive work. She had worked at this particular position for about a year and a \nhalf before her left shoulder started to bother her in June 2023. She reported the pain to her supervisor \nand to the plant nurse and initially was only given Tylenol for the pain. Claimant testified that the pain \nwas bearable at first but continued to worsen over time. After complaining three or four times about \nthe shoulder injury, she filled out the initial incident report which stated: \"I have pain in my left arm. \nStarted on June 10th with a little bit of pain. And now as the days go by, the pain gets stronger. I think \nit keeps getting more aggravated more and more with repetitive work.\" This report was completed on \nSeptember 15, 2023. \nClaimant was sent to see Dr. Robert Macleod. She said she was scheduled to have surgery on \nher left shoulder, but the claim was denied and that surgery was canceled. She then went on her own \nto see Dr. Chris Dougherty, who performed surgery on her shoulder on October 15, 2024. Claimant \nwas off work from that date until January 7, 2025, when she returned to work for George's, but is now \ndoing an easier job than before her shoulder surgery. She said her left shoulder is better now, but she \nis not able to lift it as she does her right shoulder and cannot tie her apron behind her back. She still \n\nGarcia-Lopez-H401401 \n5 \n \n \ndoes  physical  therapy  exercises  at  her  house. Claimant  testified  that  before  June  2023,  she  had  no \ntrouble with her left shoulder. She had been working at George's since 2005, and her previous jobs \nwere less strenuous than the one she was doing on June 1, 2023. \nOn cross-examination, claimant testified that she is right-handed and had been managing four \nlines of meat. A whole breast would come before her and her duty was to separate the good part from \nthe bad part. She was required to put good meat in one box, bad meat in another, and the skin and \nbones in a third box. She was the only person working at her station, filling plastic tote bins. Claimant \nfirst said that she only moved the boxes when they were empty but later described stacking boxes full \nof meat and believed that the boxes were stacked ten feet high. She used a stool to help her stack the \nboxes. Claimant acknowledged that she did not know that her estimate as to that height was correct. \nWhen claimant saw Dr. Dougherty, she used her husband's insurance to pay for the treatment. \nShe testified that she explained to Dr. Dougherty what was involved with her job. \nOn redirect examination, claimant explained that a man was supposed to come by and pick \nup the boxes she had filled and sometimes she had to get him because he was not at hand. If she was \nalone, she had to stack the full boxes. She was working on a flat surface which allowed her to have \nfour boxes on it before she had to start stacking. She said it was a tight working area with no room \nfor her to move around. Claimant clarified that she did not use any tools to get the chicken separated, \nas that was all done by hand. \nWhen asked on cross-examination about how often she had to reach above shoulder level, she \nsaid it was both retrieving the empty boxes and stacking the full ones. After she had pulled an empty \nbox off the top of the stack, claimant conceded that the next box was not as high. During her shift, \nclaimant testified she was constantly using both of her arms, extending them when throwing meat into \nthe bins and stacking/retrieving boxes. \n\nGarcia-Lopez-H401401 \n6 \n \n \nDr.  Christopher  Dougherty's  deposition  was  taken  on  July  8,  2025.  He  is  an  orthopedic \nsurgeon  at  Arkansas  Center  for  Arthroscopy  in  Bentonville.  Respondent's  attorney  began  the \ndeposition by asking Dr. Dougherty to explain his dictation process. He said medical assistants (MA) \ngather information from the patient, he performs the physical exam, the MAs enters the notes, and \nhe reviews the chart before signing off. He issues amendments to medical records when mistakes are \nidentified. Sometimes he reviews his chart reports and realizes he said something wrong, so he amends \nit  before  signing  off.  On  those  occasions  when  he  amends  something  months  later,  it  is  typically \nbecause someone has pointed out a mistake in the report; that information usually comes somebody \nfrom  outside  the  office.  Dr.  Dougherty  will  issue  an  amendment  only  if  he  believes  the  requested \nchange is verifiable. \nDr.  Dougherty  explained  that  he  does  not  typically  address  causation  in  his  dictations. \nCausation is done on intake where the MA gathers the data. He addresses causation in dictations only \nwhen he perceives a need for such. When determining causation, he believes the mechanism of an \ninjury matters. \nDr. Dougherty saw claimant a total of six times for her left shoulder injury, which included \nthe surgery. Prior to providing treatment, he knew she had been to Ozark Orthopedics and was denied \nsurgery. He thought it was because she had not met Official Disability Guidelines because she had not \nbeen treated conservatively for a sufficient period of time. The only medical record he reviewed prior \nto treating claimant was the MRI from Ozark Orthopedics. He did not review any dictations from Dr. \nMacleod prior to the deposition because it is his practice to form his own opinion without seeing what \nanother doctor had recorded. He reviewed Dr. Macleod’s note of August 8, 2024, for the first time at \nthe deposition, and quoted it: \"She works pulling and packing. Has a lot of repetitive motion. States \nshe  was  already  having  shoulder  pain  back  then  from  her  job. Actually, getting  worse  for  the  past \n\nGarcia-Lopez-H401401 \n7 \n \n \nseveral weeks. She reported to work comp and was referred there for evaluation and treatment.\" \nDr. Dougherty first saw claimant on September 4, 2024. The intake form noted that claimant \nsaid she had been lifting at work, that the injury was work related, but \"Not work comp\" and that she \n\"was going to have surgery but plant did not cover it.\" Dr. Dougherty's diagnoses were loose body \nleft shoulder, other specified arthritis left shoulder, bursitis left shoulder, and pain left shoulder. He \nsaw claimant again on September 30, 2024, for pre-operative evaluation. He reviewed the MRI from \nOzark  Orthopedics performed  on  November  7,  2023,  while  she  was  still  under  the  care  of  Dr. \nMacleod. Dr. Dougherty testified claimant “had an MRI done at Ozark Orthopedics in November of \n2023 that was consistent with a loose body in the left shoulder. Her MRI is also consistent with bursitis \nof the left shoulder and arthritis of the left acromioclavicular joint;\" \nOn October 15, 2024, Dr. Dougherty performed left shoulder arthroscopy with loose body \nremoval, subacromial  decompression,  distal  clavicle  resection,  and  biceps  tenotomy.  The  operative \nfindings documented that the articular surfaces were pristine, the rotator cuff was intact, there was a \nsplit tear of the biceps at the base of its anchor compromising approximately 50% of its anchor which \nwas  released,  a  loose  body  was  removed,  there  were  very  thickened  bursal  adhesions  that  were \nextremely erythematous, a large subacromial spur was resected, and the distal end of the clavicle was \nresected 8 mm.\n1\n   \nDr. Dougherty saw claimant for post-operative visits on October 28, 2024, and December 2, \n2024. On January 6, 2025, claimant reported she was doing much better and had minimal issues. Dr. \nDougherty released her to return to work with no restrictions. \n \n1\n Dr. Dougherty explained that his operative report contained an error mentioning that claimant had a previous left \nshoulder  surgery;  she  had  not.  Dr.  Dougherty  made the  mistake because  on  the  same  day  he  had  another  shoulder \nsurgery where that patient had a prior shoulder surgery. He inadvertently put that information in claimant's chart. \n \n\nGarcia-Lopez-H401401 \n8 \n \n \nUpon  questioning  from  claimant's counsel,  Dr.  Dougherty  addressed  an  amendment  to  his \nSeptember  4, 2024, dictation  that  was  made  on  February  26,  2025.  In  the  original  dictation,  Dr. \nDougherty did not address causation in the Assessment and Plan section. In the amended version, the \nAssessment and Plan section states: \"She was injured in a lifting accident at work\" and \"The work-\nrelated injury is attributable to greater than 51 percent of the injury.\"  While Dr. Dougherty did not \nspecifically  recall what  prompted  him  to  add  the  causation  opinion  to  the  dictation,  he  remembers \ntyping the amendment himself. He agreed that a letter from claimant’s counsel would have caused his \nMA  to  bring  the  chart  to  his  attention.  When  asked  whether  his  causation  opinion  was  his  honest \nopinion based on his examination of claimant and the history, Dr. Dougherty testified \"Yes. Correct.\" \nDr.  Dougherty  testified  that  degenerative changes can  be  the  result  of  repetitive  work  over \nyears. If a person had been doing rapid, repetitive line work using their arms and hands for a period \nof years, it would be more likely than not that degeneration in the shoulder would occur. He explained \nthat arthritis is the wearing down of a joint; a loose body can be generated by that process. If a loose \nbody broke off in such a shoulder, he would expect that to lead to a rise in symptoms, which would \ncreate the need for surgery. \nREVIEW OF THE EXHIBITS \n \nIn  addition  to  the  prehearing  order  discussed above,  the  exhibits admitted  into  evidence  in \nthis case were Claimant’s Exhibit #1, consisting of one index page and 31  numbered pages of medical \nrecords thereafter; Claimant’s Exhibit #2, consisting of one index page and one page of the  initial \naccident report;  Claimant’s Exhibit #3, the deposition of Dr. Christopher Dougherty with the exhibits \nintroduced during that deposition; Claimant’s Exhibit #4, the Payment Detail Listing, consisting of \n13 pages; and Respondent #1 Exhibit #1, consisting of one index pages and nine numbered pages of \nmedical records. \n\nGarcia-Lopez-H401401 \n9 \n \n \nDr. Robert Macleod saw claimant twice, the first visit being on October 19, 2023. His notes \nreflect that he suspected a possible rotator cuff injury to claimant's left shoulder which he categorized \nas work-related. He ordered an MRI, prescribed meloxicam and cyclobenzaprine, and returned her to \nfull duty with no restrictions.  \nOn her return visit, Dr. Macleod recorded this in the history/physical section of his November \n14, 2023, report:  \n“45-year-old female who presents for Evaluation of a left shoulder injury that \nbegan in June while she was working. She works at pulling and packing chicken \nand  has  a  lot of  repetitive  motion  and  she  states  that  she  started  having \nshoulder pain back then from her job. States her right shoulder hurts a little \nbit  as  well  pain  has  been  persistent  and  actually  getting  worse  for  the  past \nseveral weeks, she reported to work comp and was referred here for further \nevaluation and treatment.”   \n \n His assessment and plan from that visit was as follows:  \n \n“45-year-old female intra-articular loose body stemming from a work injury. \nAnd at length discussion with she and her interpreter went over the MRI we \ntalked   about   nonoperative   and   operative   treatment   alternatives she \nunderstands  if  we  do  not  do something  surgically  that  loose  body will  likely \ncause  symptoms  for  her  from  time  to  time  she  does  not  have  the  classic \nmechanism for loose body with any reported history of fall or trauma to the \nshoulder from the work however states that she never really had any issues and \nbelieves her symptoms started at work and have continued since then. Things \nreasonable proceed  with  left  shoulder  diagnostic  and  operative  arthroscopy \nremoval of loose body. full duty until surgery.” \n \nOn December 1, 2023, Dr. Macleod wrote the following “To Whom It May Concern” letter:  \n“In regards to Mrs. Lopez's work-related injury to the left shoulder, she does \nnot, again, have the normal mechanism for a loose body and considering her \nwork duties and job description with prior video reviewed, I do not think it is \nmore than 51% likely that the foreign body is a result of her work as there is \nno  1  specific  incident  that  seems  to  have  started  the  pain.  I  think it is \nreasonable  to  have  her  proceed  through  her  regular  private  insurance  if  not \napproved through work comp.” \n \n\nGarcia-Lopez-H401401 \n10 \n \n \nA  review  of  the  records  of  Dr.  Dougherty  would  be redundant in  light  of  his  deposition \ntestimony which covered his entire chart.  \nADJUDICATION \n \nFor  an  injury  to  be  compensable  under  the  gradual-onset,  rapid-repetitive-motion  law,  a \nclaimant must prove by a preponderance of the evidence that (1) the injury arose out of and in the \ncourse of her employment; (2) the injury caused internal or external physical harm to the body that \nrequired medical services or resulted in disability or death; (3) the injury was caused by rapid-repetitive \nmotion; and (4) the injury was a major cause of the disability or need for treatment. Lay v. United Parcel \nServ., 58 Ark. App. 35, 40, 944 S.W.2d 867, 870 (1997); Ark. Code Ann. § 11-9-102(4)(A)(ii)(a). The \ninjury must be established by medical evidence supported by \"objective findings.\" Ark. Code Ann. § \n11-9-102(5)(D). \nThat claimant had an injury to her left shoulder is not in dispute; Dr. Dougherty's October 15, \n2024, operative findings confirmed the loose body shown on the MRI of November 7, 2023, as well \nas a split  tear  of  the  biceps  tendon,  thickened  bursal  adhesions,  and a  large  subacromial spur,  thus \nsatisfying the second and fourth elements of proof required to establish a compensable injury.    \nRespondents contended that claimant did not prove that her injury occurred in the course of \nher employment, relying on Dr. Macleod’s “To Whom It May Concern Letter” of  December 1, 2023, \nin which Dr. Macleod opined that he did not think “it is more than 51% likely that the foreign body \nis a result of her work as there is no one specific incident that seems to have started the pain.”  The \nreason Dr. Macleod composed this letter was not introduced at the hearing, but it is undoubtedly in \nresponse to an inquiry from the respondent employer or insurance carrier. I note that Dr. Macleod \nhad mentioned in his November 14, 2023, record that claimant did repetitive work at her job, but his \nDecember 1, 2023, letter addressed only the likelihood of the injury being due to a specific incident. \n\nGarcia-Lopez-H401401 \n11 \n \n \nOn that point, claimant agreed with that assessment—her claim was for a gradual-onset injury, not \none due to a specific incident. As Dr. Macleod did not address the potential cause he documented in \nhis own records--repetitive motion--I conclude that he simply answered the questions posed by the \nemployer or carrier and was not asked about the likelihood of the injury being caused gradually. Dr. \nDougherty did specifically address that issue and unequivocally said that in his opinion \"The work-\nrelated injury is attributable to greater than 51 percent of the injury.\"  I find Dr. Dougherty’s opinion \nto be more persuasive on the issue before me, and therefore find claimant established that her injury \noccurred at work.\n2\n  \nWhile respondent did not specifically contest the rapid-repetitive nature of claimant’s work, it \nis her responsibility to demonstrate that portion of her claim. In Malone v. Texarkana Pub. Schs., 333 \nArk. 343, 969 S.W.2d 644 (1998), the Arkansas Supreme Court explained that because our legislature \nhad not established guidelines necessary to the determination of what constitutes \"rapid and repetitive \nmotion,\" that determination is made on a case-by-case basis. To determine rapid repetitive motion  \n“The standard is a two-pronged test: (1) the task must be repetitive, and (2) \nthe repetitive motion must be rapid. As a threshold issue, the tasks must be \nrepetitive,  or  the  rapidity  element  is  not  reached.  Arguably,  even  repetitive \ntasks  and  rapid  work,  standing  alone,  do  not  satisfy  the  definition.  The \nrepetitive tasks must be completed rapidly.”  \n \nThe only testimony I heard on the nature of claimant’s work came from her; there was no \nwitness called by the employer to provide a different description.  Although a claimant's testimony is \nnever viewed as uncontroverted, the Commission need not reject the claimant's testimony if it finds \nthat testimony worthy of belief. Ringier America v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993). I found \n \n2\n By the time Dr. Dougherty expressed his opinion on causation and attributed it to claimant’s work, he had already \nperformed the surgery on claimant’s shoulder; claimant used her health insurance through her husband’s group policy. \nTherefore, there was no financial motive for Dr. Dougherty to express this opinion in order for the claim to be paid \nby the workers’ compensation carrier, nor do I suggest that he would allow such to influence his medical opinion.  \n\nGarcia-Lopez-H401401 \n12 \n \n \nclaimant credible in her testimony. She described sorting meat that came before her constantly through \nher shift at a rapid rate. She used her hands to tear the part of the chicken that needed to be separated, \nmoving those pieces to boxes that were then stacked until another person arrived to remove them. \nHer testimony was that her arms were in constant use; although she was doing different tasks during \nthe course of her workday, such does not preclude a finding that she was engaged in rapid repetitive \nwork, Baysinger v. Air Systems, Inc., 55 Ark. App. 174, 934 S.W.2d 230 (1996). Viewing the evidence as \na  whole,  I  find  claimant  has  established by  a  preponderance  of  the  evidence that she  suffered  a \ncompensable gradual-onset injury on or about June 1, 2023.  \nThere were two additional issues to be decided if this was determined to be a compensable \nclaim. At the hearing, claimant announced her claim for temporary total disability benefits was from \nOctober 15, 2024, until January 6, 2025, which was the period following her shoulder surgery until \nshe  was  released  to  full  duty  by  Dr.  Dougherty. In  order  to qualify  for temporary  total  disability \nbenefits, a claimant must prove by a preponderance of the evidence that she remains within her healing \nperiod and suffers a total incapacity to earn wages. Allen Canning Co. v. Woodruff, 92 Ark. App. 237, 212 \nS.W.3d 25 (2005). Nothing in the record indicates that claimant could have returned to meaningful \nemployment before she was released from care, and I find she has proven she is entitled to an award \nof temporary total disability benefits from October 15, 2024, through January 6, 2025.  \n Having decided that claimant was entitled to a period of indemnity benefits, I now turn to a \ndetermination  of claimant’s compensation rate. The parties agreed on the admission of Claimant’s \nExhibit #4, the payment record from George’s for the period of June 1, 2022, through June 1, 2023, \nbut disagreed on the average weekly wage. The dispute is how to consider claimant’s payment for the \nweek  of  November  10,  2022. She  did  not  work  that  week,  and  apparently  only  had  eight  hours of \nvacation time available to use. At the hearing, claimant argued that her gross pay should be divided by \n\nGarcia-Lopez-H401401 \n13 \n \n \n51 weeks; respondent agreed with that, but maintained the money paid for the vacation hours should \nbe subtracted from the yearly total. I agree with respondent that if the week is not counted as a week \nworked, then the money paid to claimant should be deducted from the yearly total. Therefore, I find \nclaimant’s average weekly wage at the time of her injury was $728.21, which yields a temporary total \ndisability rate of $485.00 per week.  \n Claimant’s contentions included a request for additional medical care, but there was no \nevidence  presented  of  any scheduled appointments or  any  future  treatment needed  at  this  time. \nNonetheless, should the need for such arise, respondents are to pay medical benefits as required by \nArk. Code Ann. § 11-9-508.  \nORDER \n \nRespondent is directed to pay benefits in accordance with the findings of fact set forth herein \nthis Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one half by respondent and one \nhalf by the claimant. \nIf not already paid, respondent shall pay the court reporter's fee for preparation of the record \nin this case. \nAll issues not addressed herein are expressly reserved under the Act. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":27828,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401401 CRISTINA GARCIA-LOPEZ, EMPLOYEE CLAIMANT GEORGE’S PROCESSING INC., EMPLOYER RESPONDENT CORVEL ENTERPRISE CLAIMS INC., CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 31, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washin...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["shoulder","repetitive","back","rotator cuff"],"fetchedAt":"2026-05-19T22:34:04.148Z"},{"id":"alj-H103080-2025-12-23","awccNumber":"H103080","decisionDate":"2025-12-23","decisionYear":2025,"opinionType":"alj","claimantName":"Jimmy Foster","employerName":"Booneville Human Development Center","title":"FOSTER VS. BOONEVILLE HUMAN DEVELOPMENT CENTER AWCC# H103080 December 23, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FOSTER_JIMMY_H103080_20251223.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FOSTER_JIMMY_H103080_20251223.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H103080 \n \nJIMMY FOSTER, EMPLOYEE CLAIMANT \nBOONEVILLE HUMAN DEVELOPMENT CENTER, EMPLOYER RESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT \nOPINION FILED DECEMBER 23, 2025 \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \nClaimant represented by JARID M. KINDER, Attorney,  Fayetteville, Arkansas. \nRespondents represented by CHARLES H. MCLEMORE, Attorney,  Little Rock, Arkansas. \nSTATEMENT OF THE CASE \n On  September 29, 2025, the above captioned claim came on for a hearing at Fort Smith, \nArkansas.  A pre-hearing conference was conducted on June 2, 2025, and a pre-hearing order was filed \non that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 \nand made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n2. All prior Opinions are res judicata. \n3. The employee/employer/carrier relationship existed on July 31, 2020.   \n4. Claimant sustained an occupational disease on July 31, 2020. \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing were \nlimited to the following: \n\nFoster-H103080 \n2 \n \n1. Whether claimant is entitled to permanent total disability or, alternatively, wage loss \ndisability. \n2. Can claimant establish whether his compensable injury is a major cause for his permanent \ndisability regarding COVID 19. \n3. Did claimant refuse a bona fide offer of employment. \n4. Attorney’s fee.  \nAll other issues are reserved by the parties. \nThe claimant contends that:  “The claimant, Jimmy Foster, sustained compensable injuries \nfollowing a COVID-19 injury on August 6, 2020, while working for Booneville Development Center \nin Booneville, Arkansas. Said injuries, include, but are not limited to: a respiratory disorder, sacral \nwound, paroxysmal atrial fibrillation, dyspnea on exertion, essential hypertension, hypertensive heart \ndisease, left ventricular diastolic dysfunction, pulmonary hypertension, left ventricular dilation, trivial \nnonrheumatic mitral  insufficiency  trivial  nonrheumatic  tricuspid  insufficiency,  a  subarachnoid \nhemorrhage, and hemiparesis.  Sara L. Roberson has taken the claimant off work indefinitely due to \nhis severe COVID-pneumonia and subsequent deterioration of health.  The claimant was evaluated \nby a vocational expert, Tonya Owen, PHD, and she determined that due to his workplace injuries, the \nclaimant “would be unemployable and sustained, as a result of his condition, a total loss of earnings \ncapacity.”  A summary of her report is attached as Exhibit 1.   The claimant contends that he is permanently \nand totally disabled as a result of his workplace injury and is owed benefits for said total disability.  In \nthe alternative, the claimant contends he is owed wage loss benefits.  Due to the controversion of \nentitled benefits, the respondents are obligated to pay one half of the claimant’s attorney’s fees.  \nClaimant reserves the right to raise additional contentions at the hearing of this matter.” \n\nFoster-H103080 \n3 \n \nThe respondents contend that “The claimant tested positive for COVID, and that respondent \ndid accept this claim as compensable pursuant to Ark. Code Ann. §11-9-601 [Effective from March \n11, 2020, and until May 1, 2023] and respondent has provided benefits to or on behalf of the claimant \nfor this claim.  The claimant was paid his salary by his employer until January 8, 2021, at which point \nthe claimant was paid temporary total disability benefits by the respondent from January 9, 2021, until \nMay 6, 2022, when the claimant was released at maximum medical improvement by his treating \nphysician, Dr. Terry Clark.  The claimant tested unreliably in the sedentary classification of work at a \nFunctional Capacity Evaluation on April 26, 2022, with 13 of 53 consistency measures, and Dr. Clark \nwas unable to determine work restrictions due to the claimant’s inconsistent/submaximal effort on \nthe FCE.  The claimant was assigned permanent anatomical impairment of 10% to the whole person \nwhich has been accepted by respondent and permanent partial disability benefits were paid to the \nclaimant for this impairment rating.  The claimant would not return to work and would not complete \nhis mandatory background checks for his job.  The claimant’s employment ended November 30, 2021.  \nThe claimant testified at the December 6, 2022, hearing that he is not looking for work.  The claimant \nhas, in fact, retired and collects his pension in addition to his Social Security retirement.  The claimant \nhad a bona fide and reasonably obtainable offer to be employed at wages equal to or greater than his \naverage weekly wage at the time of the accident, therefore, he is not entitled to permanent partial \ndisability benefits in excess of the percentage of permanent physical impairment pursuant to Ark. \nCode Ann. §11-9-522(b)(2).  The Full Commission found that the claimant did not prove a right ulnar \nnerve neuropathic condition was a natural consequence of the compensable injury and that he did not \nprove that he remained within a healing period or was totally incapacitated from earning wages at any \ntime after April 26, 2022.  The claimant demanded additional permanent impairment ratings but was \nnot awarded any additional impairment rating beyond the 10% already accepted and paid by the \nrespondent.  These decisions are now res judicata and the law of the case.  Respondents contends that \n\nFoster-H103080 \n4 \n \nthe claimant cannot meet his burden of proving that he is permanently and totally disabled or unable \nto earn any meaningful wages at the same or other employment.  Respondent further contends that \nthe claimant lacks motivation to return to the workforce and cannot meet his burden of proving that \nhe is entitled to disability benefits in excess of his anatomical impairment rating for wage loss.  The \nrespondents also contend that the claimant cannot meet his burden of proving that a compensable \ninjury is the major cause of his permanent disability.  Respondent also contends that if the claimant \nestablishes that he is disabled, his compensation should be reduced and limited to the proportion only \nof the compensation that would be payable if the occupational disease were the sole cause of the \ndisability as the occupational disease as a causative factor bears to all the causes of the disability, \npursuant to Ark. Code Ann. §11-9-601(c) (1) [Effective from March 11, 2020 and until May 1, 2023]. \nThe respondents reserve the right to raise additional contentions, or to modify those stated herein, \npending the completion of discovery.” \n           From a review of the entire record including medical reports, documents, a deposition \nand other matters properly before the Commission, and having had an opportunity to hear the \ntestimony of the claimant and to observe his demeanor, the following findings of fact and conclusions \nof law are made in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on June 2, \n2025, and contained in a pre-hearing order filed on that same date are hereby accepted as fact. \n 2.  Claimant has failed to prove by a preponderance of the evidence that he is entitled to \npermanent total disability benefits pursuant to A.C.A. § 11-9-519. \n\nFoster-H103080 \n5 \n \n 3. Claimant has failed to prove by a preponderance of the evidence that he is entitled to \npermanent partial disability benefits as a result of his compensable injury for loss in wage earning \ncapacity. \nFACTUAL BACKGROUND \nThis claim has substantial procedural history. Following a hearing before me on December 6, \n2022, I issued an Opinion on February 9, 2023, finding claimant was not entitled to impairment ratings \nfor his heart condition or right ulnar nerve neuropathy because he had failed to prove his compensable \nCOVID-19 illness was the major cause of those conditions. I awarded temporary total disability \nbenefits from May 7, 2022, through September 26, 2022. \nThe Full Commission, in its Opinion filed August 9, 2023, reversed in part and affirmed in \npart. The Commission agreed that the right ulnar nerve neuropathy was not compensable, but reversed \nmy decision regarding the heart condition, holding claimant's atrial fibrillation was a compensable \nnatural consequence of his COVID-19 illness and awarded a 10% permanent anatomical impairment \nrating. The Commission also reversed my TTD award, finding claimant reached maximum medical \nimprovement on April 26, 2022, rather than September 26, 2022. The Commission further found that \n\"the claimant did not prove he remained within a healing period or was totally incapacitated from \nearning any wages at any time after April 26, 2022.\" The Commission determined that claimant \"is \nasymptomatic during daily activities\" and able to \"drive a vehicle, shop, and occasionally preach and \nlead music at his local church.\" \nRespondents appealed  to the Arkansas Court of Appeals, which  issued  its Opinion on \nDecember  11,  2024.  The  Court  affirmed  that  claimant's  atrial  fibrillation  was  a  compensable \nconsequence for purposes of medical treatment. However, the Court reversed the 10% impairment \nrating for atrial fibrillation, holding that proving a causal connection is not the same as proving \"major \n\nFoster-H103080 \n6 \n \ncause\" for purposes of a permanent impairment rating. The Court of Appeals stated: \"Evidence \nsupporting a major-cause determination is required. In this case, no lay witness or doctor has opined \nthat Foster's COVID-19 illness was the major cause of his atrial fibrillation. Moreover, the medical \nrecords show that Foster has a preexisting history of hypertension and obesity that could have caused \nhis atrial fibrillation.\" \nHEARING TESTIMONY \nClaimant was the only witness to testify at the hearing. He was 70 years old at the time of the \nhearing. He worked for Booneville Human Development Center (hereinafter BHDC or respondent) \nfor approximately 13 years as a dorm officer, which involved supervising residents of the center, \nensuring their safety, documenting incidents, and keeping count of clients. His job duties included \ngiving baths, brushing teeth, washing clothes, and making beds for clients who couldn't do these things \nthemselves. \nClaimant contracted COVID-19 at work on or about July 31, 2020, and was hospitalized for \napproximately eight days. Since recovering from the acute illness, claimant testified that he experienced \nongoing respiratory problems, heart problems, and other complications. He recounted that he has \ndifficulty breathing, particularly with any physical exertion, has shortness of breath when walking, \nstanding for extended periods, or performing household tasks. Claimant said his heart \"tends to run \naway with itself\" and he experiences irregular heartbeat. Claimant testified he experiences memory \nproblems that he attributes to COVID-19. \nClaimant sleeps in a recliner most nights because lying flat causes breathing difficulties. He \npositions a fan to blow air on his face to help with breathing. He can stand for approximately 10 to \n15 minutes before needing to sit down. He cannot lift more than 10 to 15 pounds due to his shoulder \npain and breathing problems. \n\nFoster-H103080 \n7 \n \nWhen asked about his education and past work experience, claimant said he was a high school \ngraduate. He had worked in detention centers and as a bouncer at a casino before working at BHDC. \nHe also had done sandblasting and welding work. Claimant professed to be unable to do computer \nwork; he said he didn't know how to send an email, because his wife did that for him. \nClaimant said before he contracted COVID-19, he did not have any health complications that \nprevented him from working, nor has he developed any new conditions after he was released from \nhis doctor's care for COVID-19. \nClaimant said he was terminated from BHDC on November 30, 2021 for failing to complete \nmandatory FBI background check fingerprinting. He has not worked since that time, and has not \napplied for any jobs since that time. Claimant spoke to a deputy sheriff about potential employment \nat the Sheriff's Office, but did not fill out an application. He has made no contact with BHDC about \navailable positions. He explained that he has not looked for work because he does not believe he is \nphysically capable of working. \nOn cross-examination, claimant testified he has had no medical treatment since April 26, 2022, \nwhen his treating physicians released him. He stated he has only the basic Medicare coverage that \naccompanies Social Security and cannot afford additional coverage or private insurance. He takes a \ndaily low-dose aspirin and occasional Tylenol for pain but no prescription medications.  Claimant has \nhigh blood pressure but cannot afford medication. At the hearing, he weighed 235 pounds, down \nfrom 250. He continues to experience pain in his right shoulder that now extends into his left. The \nshoulder pain, along with his lung problems, causes sleep disturbance. Claimant reported he lacks \nhand strength and can no longer open jars or grip strongly with two fingers of his right hand since \nreceiving a spinal injection. He estimated he can lift only 10 to 15 pounds, depending on position. \nClaimant performs light household tasks such as sweeping, dishwashing, and limited cooking primarily \n\nFoster-H103080 \n8 \n \nto keep his mind active. His wife handles the laundry. He described himself as a Louisiana-style cook \nand explained the sink in his home is high enough that he can do dishes without stooping. \nClaimant and his wife have custody of their seven-year-old great niece, who has been in their \ncare since age two through a court order. He watches her while she plays outside, although he cannot \nplay ball or engage in strenuous activity. He and his family attend services at Apostolic Lighthouse \nPentecostal Church in Waldron, about nine miles from his home on Wednesday, Friday, and Sunday \nmorning and evening. Claimant serves as assistant pastor and is able to drive to and from the church \nbuilding. \nClaimant acknowledged BHDC required an FBI background check. He testified that he either \nnever received the form or could not remember receiving. However, he maintained that if he had \nreceived it, he would have completed it. At that time, COVID-19 concerns prevented him from \ntraveling to the facility for fingerprinting. Claimant was unaware he could complete the process at a \npolice station. He understood he was terminated for failure to complete the background check. \nClaimant then filed for state retirement benefits and receives approximately $475 per month from the \nState of Arkansas and $1,300 per month in Social Security retirement. His wife receives retirement \nincome from the school district and plans to begin drawing Social Security. His great niece receives \nsurvivor's benefits from her deceased father, held in an account managed by claimant and his wife. \nRegarding his physical condition, claimant added to his previous testimony that he sometimes \nexperiences  throbbing  headaches,  a  rupture  around  his  navel  that  causes  occasional  pain,  and \ncontinuing difficulty swallowing since  hospitalization. He  no longer uses a cane  or walker but \nexplained he sometimes has balance problems and must sit on the bed or lean against a wall to dress \nor remove shoes. \n\nFoster-H103080 \n9 \n \nClaimant recognized all treating physicians released him from care in April 2022. The only \nwritten opinion restricting him from work was provided by his family physician, Dr. Sara Roberson, \nwho prepared a letter on June 17, 2022, that opined claimant would not be able to return to work and \nshould consider retiring. \nDr. Tanya Owen, a certified rehabilitation counselor and vocational expert, testified by \ndeposition  on  behalf  of  claimant. She reviewed  claimant's  medical  records,  functional  capacity \nevaluation, and conducted a telephone interview with claimant. She then prepared a vocational analysis \nbased on two conflicting medical opinions. Using Dr. Terry Clark's September 26, 2022, opinion \nwhich released claimant to regular duty with no restrictions, she determined claimant could return to \nhis past work with no loss of earning capacity.  However, if she accepted Dr. Roberson's June 17, \n2022, opinion that claimant cannot sustain competitive employment combined with the April 26, \n2022, functional capacity evaluation indicating sedentary capacity, then claimant would have no \ntransferable skills to sedentary work and would be unemployable with total loss of earning capacity. \nDr. Owen identified several barriers to claimant's employability: age (70), time out of the \nworkforce (over four years), lack of computer skills, no sedentary work experience, and lack of \ntransferable skills. She cited studies showing disability leads to faster decline in employment starting \nin workers' 40s, with 50% employment reduction by age 60 for individuals with disabilities. She noted \nthe probability of returning to work decreases with time out of the workforce: 50% probability after \nsix months, 25% after one year, and 1% after two years.  Dr. Owen opined claimant would not return \nto competitive employment based on the barriers she identified. \nOn  cross-examination, Dr.  Owen  confirmed  she does  not issue  medical  opinions.  She \nconducted no in-person observation of claimant. She recognized claimant has demonstrated capacity \n\nFoster-H103080 \n10 \n \nfor church attendance, childcare, cooking, and household tasks. She was aware that claimant has made \nno job search efforts since his termination. \nOn redirect examination, Dr. Owen clarified that activities of daily living do not necessarily \ntranslate to ability to work eight hours per day, five days per week in competitive employment. \nDr. Owen acknowledged on recross-examination that her analysis did not distinguish between \nclaimant's compensable and non-compensable medical conditions.  \nEXHIBITS \nIn addition to the inclusion by reference to the exhibits and testimony from the first hearing, \nclaimant submitted 38 pages of non-medical records, the bulk of which were the deposition of Dr. \nOwen and her report.  Respondent’s only exhibit was its second amended pre-hearing information \nsheet, the relevant contents of which are outlined above.  \nADJUDICATION \nThe parties stipulated that all prior decisions are res judicata. In reviewing the decision of the \nCourt of Appeals, these facts are established: \nClaimant's atrial fibrillation is compensable as a natural consequence for medical treatment, \nbut claimant failed to establish COVID-19 was the major cause of any permanent impairment related \nto his heart condition.  Claimant has preexisting obesity and hypertension, which the Court of Appeals \nidentified as alternative causes for his atrial fibrillation. \nThe following findings from the Full Commission opinion were not appealed and are final: \n\nFoster-H103080 \n11 \n \nClaimant's right ulnar nerve neuropathy is not compensable. He reached maximum medical \nimprovement on April 26, 2022, and did not prove he remained within a healing period or was totally \nincapacitated from earning any wages at any time after that date. \nClaimant  is asymptomatic  during  daily  activities and  able  to  drive  a  vehicle,  shop,  and \noccasionally preach and lead music at his local church. \nThe only permanent impairment rating that remains in effect is 10% to the whole person for \nclaimant's respiratory condition, assessed on April 26, 2022, accepted by respondents, and never \ndisputed. \nIt is against that background that the two principal issues in this case must be decided: Whether \nclaimant is permanently and totally disabled and if not, whether he is entitled to wage loss benefits in \nexcess of his permanent physical impairment.   \nIs claimant permanently and totally disabled? \nPermanent total disability (PTD) is defined as the \"inability, because of compensable injury or \noccupational disease, to earn any meaningful wages in the same or other employment.\" Ark. Code \nAnn. § 11-9-519(e)(1). The burden of proof is on the employee. A.C.A. § 11-9-519(e)(2). Permanent \nbenefits shall be awarded only upon a determination that the compensable injury was the major cause \nof the disability or impairment. A.C.A. § 11-9-102(4)(F)(ii)(a). \"Major cause\" means more than 50% \nof the cause. A.C.A. § 11-9-102(14). \nThe Court of Appeals held claimant failed to establish major cause for his heart condition, \nstating: \"Evidence supporting a major-cause determination is required. And in this case, no lay witness \nor doctor has opined that Foster's COVID-19 illness was the major cause of his atrial fibrillation. \n\nFoster-H103080 \n12 \n \nMoreover, the medical records show that Foster has a preexisting history of hypertension and obesity \nthat could have caused his atrial fibrillation.\"  \nClaimant presented no new medical evidence at the 2025 hearing. Dr. Tanya Owen, a \nvocational expert, opined claimant is not employable, but she is not a medical provider and cannot \nestablish the medical basis for permanent total disability. As noted above, her analysis did not \ndistinguish between claimant's compensable and non-compensable medical conditions.  \nClaimant argues that because respondents accepted the 10% respiratory impairment rating, \nmajor cause is established for permanent total disability. I disagree. Respondents' acceptance of the \n10% respiratory impairment established that COVID-19 was the major cause of that particular \nanatomical impairment, but not that the respiratory condition is the major cause of claimant's inability \nto earn meaningful wages. A 10% impairment rating reflects measurable anatomical loss; permanent \ntotal disability requires proof of complete inability to work.   \nDr. Roberson's June 17, 2022, letter states claimant cannot return to work but attributes his \ndecline to multiple conditions: \"diastolic heart failure, pulmonary hypertension, paroxysmal A. fib and \nrespiratory failure.\" She did not state the compensable respiratory condition is the major cause of his \ninability to work. The Full Commission's finding that claimant was not totally incapacitated from \nearning wages after April 26, 2022, is res judicata. Without new proof that the respiratory impairment \nitself has caused claimant to now become totally incapacitated from earning wages, the finding of the \nFull Commission remains the law of this case, and the claim for permanent total disability is denied.  \nIs claimant entitled to wage loss disability benefits? \nArkansas Code Annotated § 11-9-522(b)(1) provides that in claims for permanent partial \ndisability benefits exceeding permanent physical impairment, the Commission may consider age, \neducation, work experience, and other matters reasonably expected to affect future earning capacity.   \n\nFoster-H103080 \n13 \n \nClaimant contends he is entitled to wage loss benefits based on his age (70), limited education \n(high  school),  lack  of  transferable  skills,  significant  physical  limitations  from  his  compensable \nCOVID-19 occupational disease, and Dr. Owen's opinion that he is not employable. Claimant argues \nthat respondents' acceptance of the 10% respiratory impairment rating establishes major cause, and \nhis testimony combined with Dr. Owen's vocational analysis proves wage loss disability. \nRespondents contend claimant is not entitled to wage loss benefits because they extended a \nbona fide offer of employment at wages equal to or greater than claimant's average weekly wage, which \nclaimant refused. Respondents further contend claimant has demonstrated no motivation to return to \nwork, having made no job search efforts since his termination nearly four years ago despite his \ndemonstrated activities including church attendance four times weekly, caring for a child, cooking, \nand performing household tasks. \nIt is unnecessary for me to reach a decision on whether a bona fide job offer was extended or \nwhether this claim would fail due to claimant's lack of motivation to return to the job market, because \nclaimant  has  failed  to  meet  the  threshold  requirement  of  proving  his  compensable  respiratory \ncondition is the major cause of any wage loss disability, Thompson  v.  Mountain  Home  Good  Samaritan \nVillage, 2014 Ark. App. 493.   \nArkansas law requires that a compensable injury and any permanent anatomical impairment \nbe established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-102; § 11-\n9-704(c)(1). Respondents accepted a 10% whole-person respiratory impairment on that basis, and \nthose  benefits have been paid. Claimant presented  no new medical records, no new physician \nopinions, and no additional impairment evidence beyond this 10% respiratory rating. \nThe Court of Appeals determined claimant failed to establish major cause for any impairment \nrelated to his heart condition, noting obesity and hypertension as alternative causes. As with the claim \n\nFoster-H103080 \n14 \n \nfor PTD, claimant presented no new medical records, no new physician opinions, and no additional \nimpairment evidence to establish the respiratory impairment as the major cause of claimant's alleged \ninability to work.  Even if the Commission were to accept Dr. Roberson's opinion that claimant cannot \nreturn to work, as noted in the previous section of this opinion, Dr. Roberson attributed claimant's \ndecline to multiple conditions—\"diastolic heart failure, pulmonary hypertension, paroxysmal A. fib \nand respiratory failure\"—without stating the compensable respiratory condition is the major cause of \nhis inability to earn wages. \nWhile it is not necessary for me to decide claimant's motivation to return to work, I note that \nthe report from Dr. Owen lists several causes for her finding that claimant is unlikely to reenter the \njob market, most of which are due to non-compensable factors. That further undercuts the claimant's \nposition that his 10% respiratory impairment is the major cause of his inability to work.  \nWithout medical evidence establishing that the compensable respiratory condition is the major \ncause of claimant's inability to earn wages, any award would rest on speculation and conjecture, which \ncannot be substituted for proof. Ark. Dep't of Career Ed. v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 \n(1991). \nORDER \nClaimant has failed to prove by a preponderance of the evidence that he is permanently and \ntotally disabled as a result of his compensable occupational disease. \nClaimant has failed to prove by a preponderance of the evidence that he is entitled to wage \nloss disability benefits in excess of his permanent physical impairment. \nAs no indemnity benefits have been awarded, no attorney's fee is awarded. \n\nFoster-H103080 \n15 \n \nRespondent is responsible for paying the court reporter's charges for preparation of the \nhearing transcript. \nAll issues not addressed herein are expressly reserved under the Act. \n IT IS SO ORDERED. \n \n_________________________________________                                                        \n JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":27518,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H103080 JIMMY FOSTER, EMPLOYEE CLAIMANT BOONEVILLE HUMAN DEVELOPMENT CENTER, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 23, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Se...","outcome":"granted","outcomeKeywords":["granted:3","denied:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:34:02.050Z"},{"id":"alj-G703512-2025-12-22","awccNumber":"G703512","decisionDate":"2025-12-22","decisionYear":2025,"opinionType":"alj","claimantName":"Gary Jaynes","employerName":"Tempworks Management Services, Inc","title":"JAYNES VS. TEMPWORKS MANAGEMENT SERVICES, INC. AWCC# G703512 December 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JAYNES_GARY_G703512_20251222.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JAYNES_GARY_G703512_20251222.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                           CLAIM NO.: G703512 \n  \nGARY D. JAYNES, EMPLOYEE  CLAIMANT \n \nTEMPWORKS MANAGEMENT SERVICES, INC.,   \nEMPLOYER                                                                                                             RESPONDENT    \n                                        \nWESCO INSURANCE COMPANY/ \nAMTRUST NORTH AMERICA,   \nINSURANCE CARRIER/TPA                                                                                RESPONDENT  \n                                                                                           \n \nOPINION FILED DECEMBER 22, 2025 \n             \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the Honorable Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by the Honorable William C. Frye, Attorney at Law, North Little Rock, \nArkansas. \n \n \n          STATEMENT OF THE CASE \nOn September  24,  2025, the  above-captioned  claim  came  on  for a hearing in Little, \nArkansas.  Previously, a pre-hearing telephone conference was held in this matter on July 23, 2025.  \nA Pre-hearing Order was entered that same day pursuant to the telephone conference.  Said order \nwas  admitted  into  evidence  along  with  the  parties’  pre-hearing  information  filings without \nobjection as Commission’s Exhibit 1. \nStipulations \nDuring the pre-hearing telephone conference, and/or at the hearing, the parties agreed to \nthe following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n \n\nJaynes – G703512 \n2 \n \n2. That the employee-employer-insurance carrier relationship existed among the \nparties at all relevant times, including on or about March 8, 2017. \n \n3. That  the  Claimant  earned  an  average  weekly  wage  of  $1,259.37,  which  would \nentitle  him  to  a  weekly temporary total disability  rate  of  $661.00,  and  a  weekly \npermanent partial disability rate of $496.00. \n4.  That the Claimant sustained a compensable back injury on March 8, 2017, as \nfound by the Full Commission. \n5. That this case was the subject of a prior opinion, wherein the Full Commission \nfound the Claimant was entitled to an eleven percent (11%) rating and a ten \npercent (10%) wage loss disability for his compensable hip injury of March 8, \n2017.  \n6. All  issues  not  litigated  herein  are  reserved  under  the  Arkansas  Workers’ \nCompensation Act. \nIssues \n                                              \n By agreement of the parties, the issues to be litigated at the hearing are as follows: \n1. Whether the Claimant is entitled to a 10% impairment rating for his back injury.    \n \n2. Whether  the  Claimant  is  entitled  to  additional  wage  loss  disability  for  his  back \ninjury. \n \n3. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee.   \nContentions \n \nThe Claimant’s and Respondents’ contentions are set out in their response to the Pre-\nhearing Questionnaire.  Said contentions are as follows: \nClaimant: \n The Claimant contends that he sustained admitted compensable injuries on March 8, 2017. \nHe  was  given  an  11%  body-as-a-whole  impairment  in  connection  with  his  hip/femoral  nerve \ninjury.  A wage loss award was made. Subsequent to the previous hearing, the Claimant continued \nto received medical treatment for his low back, which required surgical intervention.  In a report \ndated May 31, 2023, Dr. Scott Schlesinger indicated the Claimant was entitled to a 10% body-as-\n\nJaynes – G703512 \n3 \n \na-whole impairment with regard to his low back surgical interventions.  The Claimant contends \nentitlement to payment of benefits associated with this 10% impairment rating, and that he would \nbe  entitled  to  a  wage  loss  determination,  therefore.  These  matters  have  been  controverted  for \npurposes of attorney’s fees.  The Claimant’s attorney respectfully requests that any attorney’s fees \nowed by the Claimant on controverted benefits paid by award or otherwise be deducted from the \nClaimant’s benefits and paid directly to the Claimant’s attorney by separate check, and that any \nCommission Order direct the Respondent to make payment of attorney’s fees in this matter. \nRespondents: \nRespondents contend that the rating should stay at 11%, which was awarded and paid. \nOn wage loss, the Claimant’s condition has not changed to warrant retrying wage loss. \n                   FINDINGS OF FACT AND CONCLUSIONS OF LAW \nAfter  reviewing  the record  as  a  whole, including  the  medical  reports, the documentary \nevidence, and other matters properly before the Commission, and after having had an opportunity \nto listen to the testimony of the claimant and observe his demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law in  accordance  with  Ark.  Code  Ann. §11-9-704  (Repl. \n2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.     The proposed stipulations set forth above are reasonable and hereby accepted. \n \n          3.         The Claimant proved his entitlement to a 10 % anatomical impairment rating for  \n    \n                       his compensable back injury of March 8, 2017. \n           \n          4.          The Claimant sustained a 9% wage-loss disability due to his compensable back injury. \n  \n          5.           The parties stipulated that the Respondents have controverted this claim in its entirety. \n   \n                      Therefore, the Claimant’s attorney is entitled to a controverted attorney’s fee. \n\nJaynes – G703512 \n4 \n \n \n         6.          All issues not litigated herein or addressed in this Opinion are reserved under the Act.    \n                \nSummary of Evidence \nThe only witness was the Claimant, Mr. Gary Douglas Jaynes.  \n            The record consists of the transcript from the Full Hearing held September 24, 2025, and \nthe exhibits held therein.   In  addition  to  the Pre-hearing  Order  discussed above, the  exhibits \nadmitted  into  evidence  in  this  case  were: Claimant’s  Exhibit 1,  which  is  the Claimant’s \nDocumentary   Evidence   Exhibit   consisting   of   eighteen(18)   pages of his medical   records; \nRespondents’  Exhibit  1  is the  Claimant’s June  30,  2025 Deposition  (It  is  retained  in  the \nCommission’s file); Joint Exhibit 1 comprises the  March  27,  2018, Hearing  Transcript (It  is \nretained in the Commission’s file); Joint Exhibit 2 consists  of the   September  5,  2018 Hearing \nTranscript (It is also retained in the Commission’s file); Joint Exhibit 3 consisting of the Hearing \nTranscript of November 18, 2020 (It is retained in the Commission’s file); Joint Exhibit 4 entails \nthe Opinions issued on September 5, 2018, May 13, 2019, and February on 5, 2020 consisting of \nfifty-five (55)  pages; and Joint Exhibit 5 involves the  Opinions issued on  November  18,  2020, \nAugust 16, 2021, and March 15, 2023 encompassing  sixty-six (66) pages. \n                Procedural History        \nPrior Hearings and Decisions        \n The  Claimant “sustained  admittedly  compensable  injuries to  his  back  and left leg,” on \nMarch 8, 2017.  The Respondents accepted the claim, and paid benefits to and on behalf of the \nClaimant.  He was found to have reached maximum medical improvement on October 24, 2017.  \nDr. Luke Knox assessed the Claimant with an 11% to the body as a whole impairment rating.   \n Subsequently a dispute arose between the parties regarding the Claimant’s entitlement to \nadditional benefits for his compensable injuries of March 8, 2017.     \n\nJaynes – G703512 \n5 \n \n On March 27, 2018, a full hearing was held on this claim before Administrative Law Judge \nMike  Pickens.      At  that time, the  issues being litigated included  the following:  1.  Whether  the \nClaimant sustained an 11% permanent anatomical impairment to the body as a whole as a result \nof  his  compensable injuries. 2.  Whether  the  Claimant  was rendered permanently  and totally \ndisabled because of his compensable injuries, or in the alternative entitled to wage-loss disability \nbenefits.  \n No decision was rendered from the March 2018 hearing because an issue arose regarding \nthe  severity  of  the symptoms  displayed  by  the Claimant  while  testifying during  the  hearing. \nInstead, Administrative Law Judge Pickens recessed the hearing and proposed that the Claimant \nundergo an independent medical evaluation/IME in order to evaluate the fairly serious symptoms \nthat the Claimant complained of while on the witness stand during the March 27, 2018, hearing.  \nThe parties agreed to recess the hearing for Dr. Lowry Barnes to conduct the IME, which was done \nin August 2018.      \n   Therefore,  the recessed hearing (from  March  27,  2018) was resumed  by Administrative \nLaw Judge Pickens\n1\n on September 5, 2018.  However, the previously noted issues as outlined for \nthe recessed hearing remained unchanged.   \n Subsequently, Judge Pickens entered an Opinion on October 31, 2018, wherein he found \nthat the Claimant failed to prove his entitlement to a permanent anatomical impairment and any \nwage-loss  disability.    He  further  found  that  the  Claimant did  not prove  he  was  rendered \npermanently and totally disabled by his compensable injuries of March 8, 2017.  \n On May 13, 2019, the Full Commission reversed the above Opinion.  The Full Commission \nfound the following: 1. That the Claimant sustained an eleven percent (11%) to the body as a whole \n \n \n1\n Although the cover sheet of the September 5, 2018, hearing transcript states that Administrative Law Judge \nJames Kennedy conducted the hearing, the hearing was in fact conducted by Judge Pickens.  \n\nJaynes – G703512 \n6 \n \nas a result of his March 8, 2017, compensable leg injury.  2. That the Claimant proved he sustained \nwage-loss disability benefits in the amount of 10%.  Furthermore, the Full Commission noted that \nthe Claimant did not contend he was permanently totally disabled at that time. \n Nevertheless, this decision was appealed to the Arkansas Court of Appeals.  On February \n5, 2020, the court of appeals affirmed the Full Commission’s decision.  No further appeals were \ntaken from that decision.  The above issues are now res judicata and constitute the law of the case.     \n  On  November 18, 2020, another  hearing  was conducted  by  Administrative  Law  Judge \nMike Pickens  in this  matter  for  a  determination  of  the  following: 1.  Whether  the  Claimant  is \nentitled to temporary total disability compensation for his lumbar injury from March 7, 2019 to a \ndate yet to be determined.  2.  Whether additional medical treatment is reasonably necessary for \nthe treatment of the Claimant’s compensable back injury.        \n Per an Opinion issued on February 26, 2021, Judge Pickens found among other things, that \ntreatment provided by Dr. Scott Schlesinger was unauthorized and not reasonably necessary; and \nthat the Claimant was not entitled to temporary total disability benefits.   \n The Claimant appealed this Opinion to the Full Commission.  On August 16, 2021, the Full \nCommission reversed this decision.  Specifically, the Full Commission found that the Respondents \ndid not provide the Claimant with a notice explaining his rights and responsibilities concerning the \nchange of physician rule.  The Full Commission therefore found that the change of physician rule \nwas not  applicable  and  that  the  treatment  provided  by  Dr. Scott Schlesinger  was  reasonably \nnecessary.    The  Full  Commission  further  found  the  Claimant  was  entitled  to  temporary  total \ndisability benefits from March 7, 2019, through April 30, 2019.   \n The  Respondents  appealed  to  the  Arkansas  Court  of  Appeals.    On  March  15,  2023,  the \ncourt of appeals affirmed the Full Commission’s decision.   \n\nJaynes – G703512 \n7 \n \n No further appeals were taken.         \nMost Recent Hearing \n  The  Claimant  is  now  63  years  old.    He completed  high  school in  1981  and  became  an \nelectrician.    He has been  a  Master  Electrician  since  1997.    The  Claimant  has  performed \nemployment duties as an electrician for various companies.  As an electrician, physically, he had \nto climb ladders, build cable trays, and even dig ditches.  The Claimant has previously performed \nboth residential and commercial electrician work.    He confirmed that he last worked the day he \ngot injured, which was on March 8, 2017.   \n In that regard, the Claimant was involved in a work-related accident while working for the \nrespondent-employer on  March  8,  2017.   The  Claimant gave  the  following  account  of  what \nhappended: \nA. I was in a ditch.  There was six of us there.  We was doing what they call a \nduct bank, meaning puttin’ pipes up underneath the ground goin from transformer \nin one MC room to the other, in muddy area that we asked for anything to stand on.  \nWe  was  told  it  was  dry  enough  and  you  need  to continue  to  work.    I - - we  was \nlaying pipe and I was standing there and my  feet  got  hung  in  the  mud.    I  tried  to \nraise ‘em out, I could not raise em out, and popped something in my back, and here \nI sit. \n \nQ. Okay. The symptoms that you had at the time were in your back, hip area, \nleg area; is that true?  \n \nA. Yes. \n \nQ. And which leg are we talking about? \n \nA. Left leg. \n \n  The Claimant testified that his symptoms included burning from his knee all the way down \nto his groin area, and into the inside of his thigh.  He confirmed that he has treated with several \ndoctors.  Ultimately, the Claimant came under the care of Dr. Scott Schlesinger.  He agreed that \non March 7, 2019, he underwent low back surgery by Dr. Schlesinger.  The Claimant testified that \n\nJaynes – G703512 \n8 \n \nthat he did not have surgery until he came under the care of Dr. Schlesinger. He admitted that Dr. \nSchlesinger assessed him with a 10% impairment rating on May 31, 2023, for his back injury.  The \nClaimant has not seen him since that time. According to the Claimant, he is hoping and praying \nthat  he  does  not  have  any  follow-up  visits  scheduled  with  Dr.  Schlesinger  for  any  additional \ntreatment.   \n  He  sees  Dr.  Irvin,  his  family  physician,  in  Mountain  View, for  continuing back issues.  \nAccording to the Claimant, he previously had between 14 to 20 injections.  The Claimant testified \nthat his back pain is sharp, and his leg jumps like when you are frying frog legs.  Per the Claimant, \nthis happens periodically during the day, at three times.  He confirmed that he has some days that \nare better and he is not in pain.  However, according to the Claimant, there are times that he hurts \nand does not want to do anything else, and it just depends on how bad he wants to hurt.  When his \npain is severe, the Claimant stays home.  This occurs about three times a week.  He testified that \nthese days randomly occur.  The Claimant gets out of the house and goes for a drive or to the store.  \nHe testified that on a 30-day period, he has about six good days.  The Claimant confirmed that he \nhas to bend, stoop, push, pull, and be on his feet all day as an electrician.  His hourly rate of pay \nwas  $28.00 at  the  time  of  his  compensable  injury.    He confirmed  that  he worked  through  a \ntemporary agency.     \n  On  cross-examination,  the  Claimant  testified  he  takes  over-the-counter  medications  and \nmarijuana gummies.  According to the Claimant he was unable to take the prescription medications \nsuch as Gabapentin.  The Claimant confirmed that his surgery was back in 2019.  Following his \nsurgery, he confirmed that there was a three-year gap between his visits to Dr. Schlesinger.  The \nClaimant essentially agreed that he saw Dr. Schlesinger a couple times in 2023.  He admitted that \nhe has basically gone five years without any actual medical treatment for his back.  Since his back \n\nJaynes – G703512 \n9 \n \nsurgery, the Claimant maintained that he can now walk.  Before he had surgery, per the Claimant,  \nit was very, very difficult for him to walk. \n  The Claimant  agreed that he continues with pain down his left leg.  He admitted that he \ntestified that the FCE evaluator was a joke.  Currently, the Claimant does not continue to use the \nTENS unit.  He is unable to stoop or bend nor is he able to sit for prolonged periods of time.  He \nmaintained  that  he  is  able  to  play  cards  on  a  good  day.  The  Claimant  was  not  aware  that  the \nevaluator  stated  that  he  could fully flex  his  back  and  when  they  gave  him  tasks  to  perform  his \nwalking improved.  He reluctantly admitted that there is no report from any doctor saying that any \nphysical limitations or restrictions have been placed on him.  The Claimant admitted that he has \nnot followed up on any of the job leads.  He claimed that he was not aware the Full Commission \nfound that he had legitimately shown he was not interested in returning to work.  The Claimant \nconfirmed that he stated the surgery performed by Dr. Schlesinger did not provide him with any \nrelief for his symptoms.      \n  On   redirect   examination,   the   Claimant   confirmed   that   he   has   difficulty   sleeping.  \nAccording to the Claimant, he sleeps in a chair for two or three hours depending on the severity of \npain.  He also maintained that he would like to be working if he could rather than sitting at home.  \nThe Claimant admitted that he obtained his marijuana card from Dr. Irvin, and he has continued \nto see him.  He testified that he disagreed with the finding that he does not want to work.  According \nto the Claimant, he loved his job and making money.                    \nMedical Evidence  \n On May  18, 2023, the  Claimant  sought  medical  treatment  from  Legacy  Spine  & \nNeurological Specialists under the care of Dr. Scott Schlesinger.  The Claimant complained of low \nback pain that radiated down his left leg.  This clinical encounter was performed utilizing a real-\n\nJaynes – G703512 \n10 \n \ntime telehealth audio-visual connection.  This particular event occurred during the 2020 COVID-\n19 outbreak.  The Claimant reported that his pain has gotten worse over the last couple of years.  \nHe rated his pain on average as being an 8-9 on a scale of 10. The Claimant reported numbness \nand tingling in his left leg.  However, he denied burning and weakness.  The Claimant reported \nundergoing both physical therapy and chiropractic treatment with no relief of his symptoms.  He \nwas  last  seen  on  January  7, 2020, for  radiating  left  groin  pain  with  numbness that  extended \nmedially to his knee and occasionally his foot.  At that time, Dr. Schlesinger had performed s/p \ntwo  Transforaminal  Epidural  Steroid  Injections  at  L2-3 on  the  left.  The  Claimant  reported  no \nsignificant relief from the transforaminal injections.  Dr. Schlesinger reviewed the MRI of January \n30, 2020, which showed moderate neural foramina stenosis at L2-3 Spinal Nerve Block.  Per this \nclinic note, the EMG nerve conduction study from January 30, 2020, suggested L-2 and L3 left-\nsided  radiculopathy  changes.   At that time, Dr. Schlesinger diagnosed the Claimant with “1. \nRadiculopathy, Lumbar region  (54.16).  2.  Encounter  for  other  specific  surgical  after  care \n(Z48.89).” In  order  to  investigate  the  Claimant’s  neurological  complaints,  Dr. Schlesinger \nproposed  that  the  Claimant  undergo  an  EMG  NCV  of  the  lower  left  extremities.  He also \nrecommended that the Claimant proceed with further diagnostic testing in the form of modalities \nthat included an MRI and x-rays of his lumbar spine.  Dr. Schlesinger planned to proceed with a \nselective nerve root block/SNRB at left L2-3.   \n An MRI was performed of the Claimant’s lumbar spine on May 31, 2023, which was read \nby Dr. Andrew Finkbeiner, with the following CONCLUSION: \n1.  Surgical  intervention  again  seen  at  the  L2-3  level  with  posterior  spinous  process \nhardware and suggestion of a partial left-side facetectomy defect.  There is retrolisthesis, a \nbroad-based  disc  bulge  with  left  foraminal  predominance  and  facet  hypertrophy  at  this \nlevel  contributing  to  abutment  of  bilateral  exiting  L2  nerves.   There  is  enhancing \ngranulation tissue along the surgical tract.  \n\nJaynes – G703512 \n11 \n \n2.  Retrolisthesis,  a  broad-based  disc  bulge  and  facet  hypertrophy  at  the  L3-4  and  L4-5 \nlevels with abutment of bilaterial existing and L3 and L4 nerves and abutment of bilateral \ndescending L4- and L5 nerves. \n \n             Per a Chart note of May 31, 2023, the EMG NCS showed mild active and chronic \ndenervation in left vastus lateralis could be related to radiculopathy in any level L2-L4 but was \nunable to confirm with paraspinals as was confirmed on a previous EMG in 2020. \n Dr. Schlesinger saw  the  Claimant  during  an  office  visit  that  same  day.    The  Claimant \ncomplained that his symptoms have a significant impact on the quality of life and activities of daily \nliving.  He had a chief complaint of continued low back pain that radiated down his left leg.  On \nphysical  examination  of  the  Claimant, Dr.  Schlesinger’s determined  that the Claimant had \nincreased  truncal  girth.   Dr.  Schlesinger  opined  that  the Claimant’s gait  was  very  antalgic,  and \nalthough he used a  cane to ambulate  and was still unable to tandem.  The Claimant’s left leg \nrequired repeated testing due to difficulty, weakness verses decreased effort due to pain.  He was \nnoted to have sensation decreased to palpation in his left leg.  Dr. Schlesinger canceled the SNRB \nthat was scheduled for that same day.  His diagnoses were: “1. Intervertebral disc disorders with \nradiculopathy lumbar region (51.16). 2. Other spondylosis, lumbar region (M47.896).” \nDr. Schlesinger’s Summary: \nThis 60-year-old male gives a long history of persistent back pain and left thigh pain despite \nan attempt of treating his with surgical intervention at L2-3.  The patient does have some \nelectrical abnormalities, but these are improved compared to the last test.  Unfortunately, \nhe  still hurts, and  the  study  suggested  there  is  still  some  evidence  of  neural  foramina \nnarrowing at L2-3 and postoperative changes.   \n \nThe patient declares that he does not want to proceed with a planned left L2-3 SNRB today \nbut instead desires to try to get his workman’s compensation closed.  Therefore, I will \ndeclare from the standpoint of his Workmen’s Comp. case that he has reached maximal \nmedical improvement.  Based on the fact he has had prior surgery in his lumbar spine and \ncontinued  pain  would  merit  a  10%  disability  rating  in  accordance  with  the  AMA \nguidelines. \n \n\nJaynes – G703512 \n12 \n \nIf down the road the patient does desire to have further work-up and treatment and I would \nproceed with a left L2-3 SNRB.  If this does not give significant transient benefit and the \nnext step would be to offer him the evaluation of a spinal cord stimulatory trial. \n \nIf  he  does  get  transient  benefits  from  a  left  L2-3  SNRB  then  there  is  an  opportunity  to \nfurther  decompress  the  neural  foramen  with  an  interbody  fusion  device  added  to  try  to \nfurther enlarge the left L2-3 neuroforamen.  This may or may not do any good since he has \nhad long-standing problems with his left leg even before his surgery for at least a couple \nof years.  The nerve may simply have too much electrical damage to get any improvement \nwithout a possible spinal cord stimulator trial. At this time, we give him his above right \nand release and be happy to see him back again as needed. \n  \n   \n            Adjudication \n A.  Permanent Anatomical Impairment    \n  Permanent  impairment  is  any  functional  or  anatomical  loss  remaining  after  the  healing \nperiod has been reached.  Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994).  \nThe  Commission  has  adopted  the  American  Medical  Association Guides  to  the  Evaluation  of \nPermanent  Impairment (4\nth\n ed.  1993)  to  be  used  in  assessing  anatomical  impairment.   See \nCommission  Rule 099.34 (now codified  at  11  C.A.R. § 25-129);  Ark.  Code  Ann.  §11-9-522(g) \n(Repl. 2012).  It is the Commission’s duty, using the Guides, to determine whether the Claimant \nhas proved he is entitled to a permanent anatomical impairment.  Polk County v. Jones, 74 Ark. \nApp. 159, 47 S.W.3d 904 (2001).      \n Any determination of the existence or extent of physical impairment shall be supported by \nobjective  and  measurable  physical  findings.   Ark.  Code  Ann.  §11-9-704(c)(1)  (Repl.  2012).  \nObjective findings are those findings which cannot come under the voluntary control of the patient.  \nArk.  Code  Ann.  §11-9-102(16)(A)(i)  (Repl.  2012).    Although  it  is  true  that  the  legislature  has \nrequired medical evidence supported by objective findings to prove a compensable injury, it does \nnot follow that such evidence is required to establish each element of compensability.  Stephens \nTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  All that is needed is that the \n\nJaynes – G703512 \n13 \n \nmedical evidence be supported by objective findings.  Singleton v. City of Pine Bluff, 97 Ark. App. \n59, 244 S.W.3d 709 (2006).      \nPermanent  benefits  shall  be  awarded  only  upon  a  determination  that  the  compensable \ninjury was the major cause of the disability or impairment.  Ark. Code Ann. §11-9-102(F)(ii)(a) \n(Repl. 2012).  “Major cause” means “more than fifty percent (50%) of the cause,” and a finding of \nmajor cause shall be established according to a preponderance of the evidence.  Ark. Code Ann. \n§11-9-102(14) (Repl. 2012).  Preponderance of the evidence means the evidence that has greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).    \nThe  Claimant  sustained  a  compensable  injury  to  his  lower  back  while  working  for  the \nrespondent-employer, on March 8, 2017.  The Respondents paid for both conservative and surgical \nintervention for the Claimant’s back injury.  After  the  Claimant  failed  conservative  treatment \nmodalities, Dr. Schlesinger performed a one-level surgery on his back at L2-3, on March 7, 2019, \nfor his compensable back injury.  Following the surgery, the Claimant continued with severe back \npain and symptoms in his left leg.    He continues under the care of his primary care physician, Dr. \nIrvin, because of his continued with severe chronic back pain and related left leg pain and other \nsymptomology.   Dr.  Irvin  has  prescribed  marijuana  gummies  for  the Claimant’s  resulting \nsymptoms.  On  May  31, 2023,  Dr.  Schlesinger  assessed  the  Claimant  with  a  10%  permanent \nimpairment  to  his lumbar  spine using  the  AMA Guides.    Although Dr. Schlesinger  does  not \nspecifically state that he used the 4\nth\n Edition, it appears that he in fact did so.  There are no expert \nopinions to the contrary, and Dr. Schlesinger’s assessment comports with my review of AMA \nGuides  to  the  Evaluation  of  Permanent  Impairment,  4\nth\n Edition  for  assessing  anatomical \nimpairment to the spine.  Dr. Schlesinger’s expert opinion is logical and comports with my review \n\nJaynes – G703512 \n14 \n \nof Table 75, page 3/113 of the Guides, which assigns “Whole Person Impairment Percents Due to \nSpecific Spine Disorders.  Specifically, Table 75 Section  II. E provides a  10% to the body as  a \nwhole for a surgically treated disk lesion with residual, medically documented pain, and rigidity.                   \nPer  his  medical  note of  May  2023,  Dr. Schlesinger assessed  the Claimant  with  a 10% \npermanent impairment because he underwent surgical treatment with residual symptoms of pain \ndue to electrical abnormalities and some stenosis at L3-4.  Other objective abnormities pertaining \nto the Claimant’s lumbar spine are demonstrated on the above MRI performed on May 31, 2023.  \nThese are all objective findings attributable to the Claimant’s compensable back injury of March \n8, 2017.  There is no evidence whatsoever indicating that the Claimant’s degenerative disc disease \nwas symptomatic.   \nPrior to his compensable injury of March 8, there is no evidence that the Claimant did not \nhave a history of any complaints or issues relating to his back.  I found his testimony to be credible \nin  this  regard.    In  fact,  the Claimant’s credible testimony about him  not  having  any prior  back \nproblems  is  corroborated  by  the  lack  of  any  medical  evidence  indicating  a  prior  history  of  any \nmedical treatment or diagnostic testing having been performed on his back.    \n Hence,  the  evidence  before  me  clearly  proves  that  prior  to  his  work  injury,  the Claimant’s pre-\nexisting degenerative disc disease was asymptomatic.  I am persuaded that Dr. Schelsinger’s expert \nopinion is correct and with my review of the Guides, with there being no probative evidence or \nother recent expert opinions to the contrary.  \nTherefore,  I  have  attached  significant  evidentiary  weight  to  Dr. Schlesigner’s expert \nopinion.    For  these  reasons,  I  am  also  convinced  that  the  major  cause  of  the Claimant’s 10% \npermanent anatomical impairment, resulted from his work-related injury of March 8, 2017.   \n\nJaynes – G703512 \n15 \n \nI  realize  that  Drs.  Cathy  and  Knox  opined  that the Claimant  sustained  no  permanent \nimpairment on his  lumbar  spine.    However,  these  opinions  were given prior to the Claimant’s \nlumbar surgery.  As a result, I have attached minimal weight to these opinions. \nB. Wage-Loss Disability  \n When a Claimant has sustained a permanent impairment rating to the body as a whole, the \nCommission is authorized to increase the disability rating based on wage-loss factors.  The wage-\nloss factor is the extent to which a compensable injury has affected the Claimant’s ability to earn \na livelihood.  Grimes v. North Am. Foundry, 316 Ark. 295, 872 S.W.2d 59 (Ark. 1994).  Ark. Code \nAnn. § 11-9-522(b) (Repl. 2012) provides, in pertinent part:  \n(1) In considering claims for permanent partial disability benefits in excess of the \nemployee’s  percentage  of  permanent  physical  impairment,  the  Workers’ \nCompensation Commission may take into account, in addition to the percentage of \npermanent  physical  impairment, such factors as the employee’s age, education, \nwork experience, and other matters reasonably expected to affect his or her future \nearning capacity.  \n Such  other  matters  are  motivation,  post  injury  income,  credibility,  demeanor,  and  a \nmultitude  of  other  factors.   Glass  v.  Edens,  233  Ark.  786,  346  S.W.2d  685  (1961); City  of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Curry v. Franklin Electric, 32 \nArk. App. 168, 798 S.W.2d 130 (1990); Cross v. Crawford County Memorial Hosp., supra. It is \nwell established that a Claimant’s prior work history and education are factors to be considered in \ndetermining  eligibility  for  wage-loss  benefits.   See  Cross  v.  Crawford  County  Memorial  Hosp., \nsupra.; Glass v. Edens, supra.; City of Fayetteville v. Guess, supra.; Curry v. Franklin Electric, \nsupra.  \n On  Mach  8,  2017,  the  Claimant  sustained  injuries  to his back  and leg.    The  parties \npreviously  litigated  issues about the  Claimant’s left leg injury,  which is now res  judicata.  \n\nJaynes – G703512 \n16 \n \n At issue now is whether the Claimant is entitled to wage-loss disability benefits relating to \nhis back compensable injury of March 8, 2017.   \n The Claimant is now 63 years of age.  His testimony shows that he began working with his \ndad in 1983 as an electrician.  He became a certified Master Electrician in 1997.  The Claimant’s \nprior work as a commercial and residential electrician required that he be able to perform heavy \nmanual labor.   \n Here, the Claimant sustained a compensable back injury in March 2017, while performing \njob duties as an electrician when his boot got stuck in mud and he tried to dislodge it.  He felt an \nimmediate onset of pain.  The Claimant reported this incident to his employer, and Respondents \nreferred the Claimant for treatment and evaluation of his compensable injuries.  \n After conservative treatment failed, the Claimant underwent surgical intervention at L2-3 \non his lumbar spine by Dr. Schlesinger in 2019.  No doctor has placed any physical limitations on \nthe Claimant.  He previously underwent an FCE with invalid results.  The record shows that the \nClaimant suffers from chronic back pain, for which he takes marijuana gummies.  The Claimant \nmaintains  that  he  is  interested  in  returning  to  work.   However,  his inaction proves otherwise.  \nAlthough  the Claimant  does  not  have  any physical  restrictions  placed  on  him  by  a  doctor,  the \nevidence before me demonstrates that the Claimant is unable to perform majority of the functions \nof an electrician or any type of heavy manual labor.   \n His testimony shows that he has performed some odds job since his back surgery.  He has \nnot applied for any potential job openings since his March 8, 2017, injury.  His testimony shows \nthat he has not held full-time employment since that time.    He is unable to perform heavy manual \nlabor due to his compensable back injury of March 8, 2017.   \n\nJaynes – G703512 \n17 \n \n However,  the  evidence  clearly proves that  the  Claimant  is  legitimately not interested  in \nreturning to gainful employment within his physical limitations.  The Claimant has applied and \nbeen approved for Social Security Disability benefits.   \n Based on the Claimant’s compensable back injury, advanced age, his resulting permanent  \nimpairment of as a result of same, prior work history of heavy manual labor, limited education, \nnon-transferable skills, his  lack  of  interest  and  motivation  in returning  to  other  work within  his \nphysical limitations, and all of the other factors before me, I find that the Claimant proved that he \nsustained a wage-loss disability in the amount of 9%.             \nC.  Attorney’s Fee \n The  parties  stipulated  that  the Respondents  have  controverted  this claim for  additional \nbenefits.    As  such,  the Claimant’s attorney is entitled to a controverted attorney’s fee on all \nindemnity benefits awarded herein to the Claimant, pursuant to Ark. Code Ann. §11-9-715 (Repl. \n(2012). \n                                                                    AWARD \n The Respondents are directed to pay benefits in accordance with the findings of fact set \nforth herein this Opinion.  All accrued sums shall be paid in lump sum without a discount, and \nthis award shall earn interest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809 \n(Repl. 2012).  Pursuant to Ark. Code Ann. §11-9-715 (Repl. 2012), the Claimant’s attorney is \nentitled to a 25% attorney’s fee on the indemnity benefits awarded herein. This fee is to be paid \none-half by the insurance carrier and one-half by the Claimant.  \n      IT IS SO ORDERED. \n \n                                                              \n                                                                                                            ________________________                       \n                               CHANDRA L. BLACK \n              Administrative Law Judge \n\nJaynes – G703512 \n18","textLength":35661,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: G703512 GARY D. JAYNES, EMPLOYEE CLAIMANT TEMPWORKS MANAGEMENT SERVICES, INC., EMPLOYER RESPONDENT WESCO INSURANCE COMPANY/ AMTRUST NORTH AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 22, 2025 Hearing held before Administrative Law Judge...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","hip","lumbar","knee"],"fetchedAt":"2026-05-19T22:33:59.870Z"},{"id":"alj-H502091-2025-12-19","awccNumber":"H502091","decisionDate":"2025-12-19","decisionYear":2025,"opinionType":"alj","claimantName":"Matisha Neely","employerName":"Tacos 4 Life LLC","title":"NEELY VS. TACOS 4 LIFE LLC AWCC# H502091 December 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Neely_Matisha_H502091_20251219.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Neely_Matisha_H502091_20251219.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H502091 \n \n \nMATISHA B. NEELY, EMPLOYEE CLAIMANT \n \nTACOS 4 LIFE LLC, \nEMPLOYER RESPONDENT \n \nUNION INS. OF PROVIDENCE, \nCARRIER RESPONDENT \n \n \nOPINION FILED DECEMBER 19, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on December 19, 2025, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Karen  H.  McKinney,  Attorney  at  Law, Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on December 19, 2025, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was  Commission  Exhibit  1  (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”),  forms,  pleadings,  and \ncorrespondence related to this claim, consisting of 16 pages. \n\nNEELY – H502091 \n \n2 \n \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on April  10,  2025,  Claimant \npurportedly suffered an injury to her chin/mouth when she passed out at work and \nfell  to  the  floor.  According  to  the  Form  AR-2  that  was  filed  on April  11, 2025, \nRespondents accepted  the  claim as  a  medical-only  one  and  paid  benefits \npursuant thereto. \n On April 4, 2025, Claimant filed a Form AR-C, requesting temporary partial \ndisability  benefits.    No  hearing  request  accompanied  this  filing.   Respondents’ \ncounsel entered her appearance on April 11, 2025. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nOctober 9,  2025.    On  that  date, Respondents filed  the  instant  motion,  asking  for \ndismissal of the claim under Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012), \nalong  with  AWCC  R. 099.13  (now  codified  at  11  C.A.R. § 25-110(d)).  Therein, \nthey argued that Claimant has taken no measures to pursue her claim, including \nrequesting a hearing thereon.  The file was assigned to me on October 10, 2025; \nand  on that  same  date,  my  office wrote  Claimant,  asking  for  a  response  to  the \nmotion within 20 days.  The letter was sent by first class and certified mail to the \nJonesboro, Arkansas address for her listed in the file and on her Form AR-C.  But \nboth  items  of  correspondence  were  returned  to  the  Commission;  the United \nStates Postal Service noted that the certified letter was unclaimed, while the first-\n\nNEELY – H502091 \n \n3 \n \nclass  letter  was  “not deliverable as  addressed.”\n1\n  Unsurprisingly,  no  response \nfrom Claimant to the motion was  forthcoming.   On November  4,  2025,  a  hearing \non the Motion to Dismiss was scheduled for December 19, 2025, at 12:00 p.m. at \nthe Craighead County Courthouse in Jonesboro.  The Notice of Hearing was sent \nto Claimant via first-class and certified mail to the same address as before.  Once \nagain,  both  items  were  returned  to  the  Commission,  with  each  bearing  the \nnotation that they were “not deliverable as addressed.” \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the above authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n \n \n1\nIt bears repeating that the address used was the one that Claimant herself \nsupplied to the Commission. \n\nNEELY – H502091 \n \n4 \n \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under 11 C.A.R. § 25-110(d). \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin  pursuit  of it (including  appearing  at  the December  19,  2025, hearing  to  argue \n\nNEELY – H502091 \n \n5 \n \nagainst its dismissal) since the filing of her Form AR-C on April 4, 2025.  Thus, the \nevidence preponderates that dismissal is warranted under the above provision. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n2\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7030,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H502091 MATISHA B. NEELY, EMPLOYEE CLAIMANT TACOS 4 LIFE LLC, EMPLOYER RESPONDENT UNION INS. OF PROVIDENCE, CARRIER RESPONDENT OPINION FILED DECEMBER 19, 2025 Hearing before Administrative Law Judge O. Milton Fine II on December 19, 2025, in Jonesboro, Craigh...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:57.772Z"},{"id":"alj-H500801-2025-12-18","awccNumber":"H500801","decisionDate":"2025-12-18","decisionYear":2025,"opinionType":"alj","claimantName":"Jamie Reynolds","employerName":"Tyson Poultry, Inc","title":"REYNOLDS VS. TYSON POULTRY, INC. AWCC# H500801 December 18, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/REYNOLDS_JAMIE_H500801_20251218.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REYNOLDS_JAMIE_H500801_20251218.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H500801 \n \nJAMIE REYNOLDS, Employee CLAIMANT \n \nTYSON POULTRY, INC. Employer RESPONDENT \n \nTYSON FOODS, INC. Carrier RESPONDENT \n \n \n \n OPINION FILED DECEMBER 18, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nRussellville, Pope County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents  represented  by J.  MATTHEW  MAULDIN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On  February  7,  2025,  claimant  filed an AR-C  requesting  various  compensation \nbenefits. She also filed a request to change physicians to Dr. Kelly. On March 3, 2025, a \nChange of Physician Order  was  entered  allowing  claimant to  change  physicians to  Dr. \nKelly.  Claimant  underwent  an  evaluation  by  Dr.  Kelly  on  March  17,  2025,  and  he \nreleased her from his care on March 24, 2025. \n Since her release by Dr. Kelly, claimant has taken no further action to prosecute \nher claim. As a result, respondent filed a Motion to Dismiss on September 30, 2025. In a \nletter  dated  October  8,  2025,  this  administrative  law  judge  asked  claimant  to  state \n\nReynolds H500801 \n \n-2- \nwhether  she  objected  to  the  respondent’s  Motion  to  Dismiss.  No  response  was \nforthcoming  and  as  result  a  hearing  was  scheduled on the  respondent’s motion for \nDecember 8, 2025. Notice of the hearing was sent to claimant by certified mail and was \ndelivered  on  November  7,  2025.  Claimant  did  not  appear  at  the  hearing  and  has  not \nresponded to the respondent’s Motion to Dismiss.  \n Pursuant  to  11  CAR §25-110(d) (previously  codified  as  Commission  Rule \n099.13), the Commission may enter an order dismissing a claim for want of prosecution. \nAfter my review of the respondent’s motion, the claimant’s failure to respond thereto or \nappear at the hearing, and all other matters properly before the Commission, I find that \nclaimant  has  failed  to  prosecute her claim.  Therefore, her  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2325,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H500801 JAMIE REYNOLDS, Employee CLAIMANT TYSON POULTRY, INC. Employer RESPONDENT TYSON FOODS, INC. Carrier RESPONDENT OPINION FILED DECEMBER 18, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Russellville, Pope County, Arkansas. Claimant ...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:55.683Z"},{"id":"alj-H403725-2025-12-17","awccNumber":"H403725","decisionDate":"2025-12-17","decisionYear":2025,"opinionType":"alj","claimantName":"Victor Amador","employerName":"Shepard Construction, LLC","title":"AMADOR VS. SHEPARD CONSTRUCTION, LLC AWCC# H403725 December 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/AMADOR_VICTOR_H403725_20251217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"AMADOR_VICTOR_H403725_20251217.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H403725 \n \nVICTOR JUAREZ AMADOR, Employee CLAIMANT \n \nSHEPARD CONSTRUCTION, LLC, Employer RESPONDENT \n \nACCIDENT FUND NATIONAL INS. CO., Carrier RESPONDENT \n \n \n \n OPINION FILED DEEMBER 17, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On May  15,  2024,  the  claimant’s attorney, Lauri Thomas, filed  an  AR-C  requesting \nvarious compensation benefits which alleged injuries to the claimant’s thumb, ring finger, neck, \nchest,  elbow,  head,  forearm,  back  pelvis  and  abdomen on  or  about April  29,  2024. On  July  16, \n2025,  Ms.  Thomas  filed  a  Motion  to  Withdraw  as  Counsel  and  that  motion  was  granted  by  the \nFull Commission by Order filed July 30, 2025. No further action was taken on this claim. \nOn August 13, 2025, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of  prosecution. A hearing  was scheduled  for October 28, 2025. Notice of \nthat hearing was sent to the claimant by certified mail, return receipt requested on September 16, \n2025.  That  certified  mail  notice  was  returned  to  the  Commission  by  the  Post  Office  with  a \nnotation “Return to Sender. Unclaimed.  Unable  to  Forward.” At  the  hearing,  it  was  discovered \n\nAmador – H403725 \n \n-2- \nthat the notice of hearing was sent to the claimant’s previous address. On October 28, 2025, a \nletter  was  sent  by  certified  mail,  return  receipt  requested  to  the  claimant  at  his  current  address \ninforming him that a hearing was held regarding the Motion to Dismiss filed by the respondents, \ngiving  the  claimant  45  days  to  respond  if  he  had  any  objections  to  the  dismissal  of  his  claim. \nThat  letter  was  returned  to  the Commission  by  the  Post  Office,  with a  notation  “Return  to \nSender. Attempted, Not Known. Unable to Forward.” \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After a review of the \nrespondents’ Motion to Dismiss, the claimant’s lack of desire to pursue his claim, and his failure \nto appear at the scheduled hearing, as well as all other matters properly before the Commission, I \nfind  that  claimant  has  failed  to  prosecute  this  claim.  Therefore,  this  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2956,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H403725 VICTOR JUAREZ AMADOR, Employee CLAIMANT SHEPARD CONSTRUCTION, LLC, Employer RESPONDENT ACCIDENT FUND NATIONAL INS. CO., Carrier RESPONDENT OPINION FILED DEEMBER 17, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:33:47.370Z"},{"id":"alj-H406976-2025-12-17","awccNumber":"H406976","decisionDate":"2025-12-17","decisionYear":2025,"opinionType":"alj","claimantName":"Samantha Figueroa","employerName":"Clean Cookin, LLC","title":"FIGUEROA VS. CLEAN COOKIN, LLC AWCC# H406976 December 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FIGUEROA_SAMANTHA_H406976_20251217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FIGUEROA_SAMANTHA_H406976_20251217.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H406976 \n \nSAMANTHA FIGUEROA, Employee CLAIMANT \n \nCLEAN COOKIN, LLC, Employer RESPONDENT \n \nMARKEL SERVICE, INC., Carrier RESPONDENT \n \n \n \n OPINION FILED DECEMBER 17, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On October 24, 2024, the claimant’s previous  attorney, Jarid Kinder, filed an AR-C \nrequesting  various  compensation  benefits,  alleging  injuries  to  her  foot,  ankle,  and  body  as  a \nwhole. On  February 21,  2025, Mr. Kinder filed a Motion to Withdraw and on March 14, 2025, \nthe Full Commission entered an Order allowing him to withdraw as claimant’s counsel. No \nfurther action was taken on this claim.  \nOn August 18, 2025, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. A hearing was scheduled for November 18, 2025. Notice of \nthat  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on October  2, \n2025. United States Postal Department records indicate that claimant received and signed for the \nnotice  on October  16,  2025.  Despite  having  received  notice  of  the  scheduled  hearing,  the \n\nFigueroa – H406976 \n \n-2- \nclaimant  failed  to  appear  at  the  hearing  and  has  failed  to  respond  to  the  motion  in  any  form  or \nmanner. \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After a review of the \nrespondents’ Motion to Dismiss, the claimant’s lack of desire to pursue her claim, and her failure \nto appear at the scheduled hearing, as well as all other matters properly before the Commission, I \nfind  that  claimant  has  failed  to  prosecute  this  claim.  Therefore,  this  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2410,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H406976 SAMANTHA FIGUEROA, Employee CLAIMANT CLEAN COOKIN, LLC, Employer RESPONDENT MARKEL SERVICE, INC., Carrier RESPONDENT OPINION FILED DECEMBER 17, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Cl...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:33:49.439Z"},{"id":"alj-H403176-2025-12-17","awccNumber":"H403176","decisionDate":"2025-12-17","decisionYear":2025,"opinionType":"alj","claimantName":"Melisha Mccorkle","employerName":"Frito Lay, Inc","title":"MCCORKLE VS. FRITO LAY, INC. AWCC# H403176 December 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/McCorkle_Melisha_H403176_20251217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"McCorkle_Melisha_H403176_20251217.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H403176 \n \nMELISHA D. MCCORKLE, \nEMPLOYEE                                                                                                              CLAIMANT \n \nFRITO LAY, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nINDEMNITY INS. CO. OF NORTH AMERICA, \nCARRIER                                                                                                             RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT, \nTPA                                                                                                                        RESPONDENT \n \n \n \nOPINION FILED DECEMBER 17, 2025 \n \nHearing conducted on Friday, November 14, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant is Pro Se, of Weiner, Arkansas.  \n \nThe Respondents  were represented by Mr. Lee  J.  Muldrow,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non August 26, 2025.  A hearing on the motion was conducted on November 14, 2025, in Jonesboro, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a sanitation worker. The date for \nClaimant’s  alleged  injury  was  on April 26,   2024. This   incident   was   reported   to   the \nRespondent/Employer on the  same  day. Admitted  into  evidence  was Respondents’ Exhibit 1, \n\nMCCORKLE, AWCC No. H403176 \n \n2 \n \npleadings,  and  correspondence,  consisting  of 9 pages,  and Commission  Ex. 1, pleadings, \ncorrespondence, and U.S. Mail return receipts, consisting of 10 pages, as discussed infra. \nThe record reflects on May 14, 2024, a Form AR-C was filed by Claimants then-attorney, \nMark Peoples, purporting that Claimant sustained injuries to her back, right knee, and right hip. \nMay 17, 2024, a Form AR-1 purporting that Claimant’s injuries occurred when she slipped while \ncarrying cans downstairs. On July 31, 2024, a Form AR-2 was filed neither accepting or denying \ncompensability. Claimant’s then-attorney  filed  for  a  change-of-physician and  the  request  was \ngranted  on  June  17,  2024, from Dr.  Roger  Troxel  to  Dr.  Dominic  Maggio. On  June 24,  2025, \nClaimant’s then-attorney filed a motion to withdraw as Claimant’s attorney. The Full Commission \ngranted Mr. People’s motion on July 25, 2025.  \nRespondents filed a Motion to Dismiss due to Claimant’s failure to prosecute his claim on \nAugust 26, 2025. The Claimant was sent, on September 2, 2025, notice of the Motion to Dismiss, \nvia certified  and  regular  U.S.  Mail,  to  his last  known  address.  The  certified motion notice  was \nclaimed by Claimant as noted on the September 15, 2025, return receipt. This notice was also sent \nregular U.S. Mail and did not return to the Commission. Despite this, the Claimant did not respond \nto  the  Motion,  in  writing,  as  required. Thus,  in  accordance  with  applicable  Arkansas  law,  the \nClaimant was mailed due and proper legal notice of Respondents’ Motion to Dismiss hearing date \nat her current address of record via the United States Postal Service (USPS), First Class Certified \nMail, Return Receipt Requested, and regular First-Class Mail, on October 1, 2025. The certified \nnotice was claimed as noted by the October 6, 2025, return receipt. Likewise, the hearing notice \nsent regular First-Class was not returned to the Commission. The hearing took place on November \n14, 2025. And as mentioned before, the Claimant did not show up to the hearing. \n \n\nMCCORKLE, AWCC No. H403176 \n \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the November  14, \n2025, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was claimed by Claimant, per the return postal notice bearing the October 6, 2025, date. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \n\nMCCORKLE, AWCC No. H403176 \n \n4 \n \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \nAR-C on May 14, 2025. Since then, she has failed to request a bona fide hearing. Therefore, I do \nfind by the preponderance of the evidence that Claimant has failed to prosecute her claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ______________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6193,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H403176 MELISHA D. MCCORKLE, EMPLOYEE CLAIMANT FRITO LAY, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA, CARRIER RESPONDENT SEDGWICK CLAIMS MANAGEMENT, TPA RESPONDENT OPINION FILED DECEMBER 17, 2025 Hearing conducted on Friday, November 14, 20...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["back","knee","hip"],"fetchedAt":"2026-05-19T22:33:51.484Z"},{"id":"alj-H307648-2025-12-17","awccNumber":"H307648","decisionDate":"2025-12-17","decisionYear":2025,"opinionType":"alj","claimantName":"Joshua Olson","employerName":"J. Williams Contractor, LLC","title":"OLSON VS. J. WILLIAMS CONTRACTOR, LLC AWCC# H307648 December 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/OLSON_JOSHUA_H307648_20251217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OLSON_JOSHUA_H307648_20251217.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H307648 \n \nJOSHUA OLSON, Employee CLAIMANT \n \nJ. WILLIAMS CONTRACTOR, LLC, Employer RESPONDENT \n \nSTONETRUST INSURANCE, Carrier RESPONDENT \n \n \n \n OPINION FILED DECEMBER 17, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On September 23, 2025, the above captioned claim came on for a hearing at Springdale, \nArkansas.   A pre-hearing conference was conducted on July 28, 2025, and a Pre-hearing Order \nwas  filed  on July  30, 2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The   relationship   of   employee-employer-carrier   existed   between   the   parties on \nOctober 31, 2023. \n 3. The respondents have controverted the claim in its entirety. \n\nOlson – H307648 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $427.00 for temporary total disability benefits and $320.00 for permanent partial \ndisability benefits.   \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  compensable  injuries  to  his  skull,  brain,  and  jaw  on  or \nabout October 31, 2023. \n 2. Whether Claimant is entitled to medical treatment for his skull, brain, and jaw injuries. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  November  1, \n2023, to a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n 5. Respondents raise Intoxication defense. \n The claimant's contentions are as follows: \n“1. The above listed proposed stipulations. \n \n2. The Claimant was injured on October 31, 2023, when he was the \npassenger of a company vehicle which was involved in a single car \naccident causing him to receive multiple head injuries. \n \nThe   Claimant   was   airlifted   to   Washington   Regional   Medical \nCenter for treatment of his injuries. He was treated for six (6) skull \nfractures, five (5) brain hemorrhages, fractured jaw and a traumatic \nbrain injury. The Claimant was hospitalized for approximately two \nweeks. \n \nThe  Claimant  followed  up  with  his  primary  care  physician,  Dr. \nKevn  Richter,  for  continued  headaches  and  traumatic  brain  injury \nresidual  effects.  Dr.  Richter  referred  the  client  for  speech  therapy \nat North Arkansas Regional Medical Center. \n \nThe  Claimant  attended  physical  therapy  for  his  traumatic  brain \ninjury including memory and speech issues. \n \n\nOlson – H307648 \n \n-3- \n3.  The  Claimant  reserves  the  right  to  amend  and  supplement  his \ncontentions after additional discovery has been completed.” \n \n The respondents’ contentions are as follows: \n“The claimant did not sustain a compensable injury. He was tested \nfor  illegal  drugs  on  the day  of  the  accident,  and  he  tested  positive \nfor  marijuana  and  amphetamines.  The  use  of  drugs  is  responsible \nfor his injuries.” \n \n The  claimant  in  this  matter  is  a 36-year-old  male who  alleges  to  have  sustained \ncompensable  injuries  to  his  skull,  brain,  and  jaw  on  or  about  October  31,  2023,  in  a  motor \nvehicle  accident,  while  employed  by  the  respondent.  The  respondent  in  this  matter  has \ncontroverted the claimant’s claim in its entirety.  \n The claimant worked for the respondent as a construction worker helping to run inground \nelectric lines and installing streetlights and transformers. The respondent’s home office is located \nin Berryville, Arkansas,  but on October 31, 2023, the day the claimant alleges his compensable \ninjuries  to  have  occurred,  he  and  his  crew  were  scheduled  to  work  in  Rogers,  Arkansas.  The \nclaimant stated in direct examination testimony that the drive from Berryville to Rogers “took \njust about an hour, maybe a little bit more.” \n The claimant was questioned in direct examination testimony about how he would get to \nand from the job sites as follows: \nQ And how would you get to the job site to and from? \n \nA As far as transportation or the route? \n \nQ No, I mean how did you get there? Did you drive your own \nvehicle? \n \nA I would drive my vehicle to the shop there in Berryville and \nthen  from  there  we  would  like  clock  in,  all  the  guys  would  get  in \nthe work truck, and we would drive in the work truck to Rogers. \n \n\nOlson – H307648 \n \n-4- \n The  claimant  testified  that  on  or  about  October  31,  2023,  he  entered  into  a  four-door  or \ncrew  cabbed  truck  owned  by  the  respondent  with  three  other  passengers  and  left  from  the \nrespondent’s shop in Berryville, Arkansas, at about 5:30 am. The claimant identified the driver \nof the respondent’s truck as Hayden  Keith, who was a co-worker. The claimant’s foreman, \nTatum Keith, was seated in the front passenger seat of the truck and  a co-worker named Lanny \nwas seated in the rear passenger seat. As for the claimant, he was seated in the rear driver’s side \nseat of the respondent’s truck. \n The claimant gave direct examination testimony about his memory of the drive to Rogers \nthat morning and the motor vehicle accident he was involved in as follows: \nQ How much of that trip do you remember? \n \nA I remember getting in the truck and going to sleep. \n \nQ Were you asleep at the time of the wreck? \n \nA Yes, sir. \n \nQ So of your own knowledge, -- I don’t want you to say what \nanybody else said – but of your own knowledge, do you have any \npersonal knowledge of how the wreck occurred? \n \nA No, I do not. \n \nQ You were asleep? \n \nA (Witness nods.) \n \nQ What  was  the  first  conscious  moment  that  you  have  after \nthe accident? \n \nA I  was  in  the  hospital.  I  think  I  was  eating  chicken  and \nnoodles, or chicken and rice, or something. \n \nQ So you don’t remember being on the scene at all? \n \nA No, sir. \n\nOlson – H307648 \n \n-5- \n \nQ Your first memory is waking up in a hospital? \n \nA Yes. \n \n An  Arkansas  State  Police  Incident  Report  was  introduced  into  evidence  and  found  at \nClaimant’s Exhibit 2, pages 1-11. The report was completed by Trooper Harley Hooper and his \nnarrative is found at page 8 of Claimant’s Exhibit 2 and states: \nV1 was traveling westbound on Highway 62 near Inspiration Point \nFire Station 2. \n \nV1 was negotiating  a curve right. V1  crossed left of center before \nexiting  the  roadway  to  the  left.  V1  traveled  off  an  embankment \nstriking several small trees before coming to a final rest. V1 came \nto final rest at the bottom of the embankment. \n \nV1 sustained disabling damage. \n \nNOTE: Contributing factor in the collision was reckless driving. \n \nPhotographs of the respondent’s truck after the motor vehicle accident are found at Claimant’s \nExhibit  3,  pages  1-13 and show heavy damage to front of the respondent’s truck and the rear \ndriver’s side of the respondent’s truck where the claimant was in a seated position and sleeping. \n The  claimant  was med-flighted to  Washington  Regional  Medical  Center  where  he  was \ntreated for his injuries. On October 31, 2023, the claimant underwent a CT of the head and brain \nwithout contrast. Following are Impressions of that diagnostic test: \nIMPRESSION: \n1.   HEMORRHAGIC   CONTUSIONS   WITHIN   THE   RIGHT \nTEMPORAL   LOBE   LARGEST   2.4   CM.   ADDITIONALLY \nRIGHT  FRONTOTEMPORAL  SUBDURAL  AND  POSSIBLY \nLEFT ANTERIOR TEMPORAL FOSSA SUBDURAL \nHEMATOMA. \nHEMORRHAGIC    CONTUSION    IN    THE    SUBCORTICAL \nWHITE MATTER OF THE RIGHT FRONTAL LOBE NOTED.  \n2.  SKULL FRACTURE  IN  THE  AREA  OF  THE  ANTERIOR \nLEFT    TEMPORAL    FOSSA    AS    WELL    AS    THE    LEFT \n\nOlson – H307648 \n \n-6- \nZUGOMATIC    ARCH    AND    POSSIBLY LEFT    LATERAL \nORBIT.   BLOOD   PRODUCTS   WITHIN   THE   PARANASAL \nSINUSES. \nLEFT LATERAL SCALP HEMATOMA. \n \n Later that same day, the  claimant underwent a second CT of the head and brain without \ncontrast. Following are the Impressions of that diagnostic test: \nIMPRESSION: \n1.  SLIGHTLY  LARGER  HEMORRHAGIC  CONTUSION   IN \nTHE RIGHT TEMPORAL LOBE MEASURES 3.0 X 1.5 CM.  \n2.  STABLE  SMALL  HEMORRHAGIC  CONTUSIONS  IN  THE \nANTERIOR   RIGHT   TEMPORAL   LOBE   AND   ANTERIOR \nRIGHT. \nFRONTAL LOBE. \n3.    STABLE    SMALL    FRONTOTEMPORAL    SUBDURAL \nHEMATOMA. \n \nThe  claimant  also  had  a  CT  of  the  maxillofacial  without  contrast.  Following  are  the \nImpressions of that diagnostic test: \nIMPRESSION: \n1.   FRACTURE   OF   THE   LEFT   GREATR   WING   OF   THE \nSPHENOID  EXTENDS  ACROSS  THE  ORBITAL  APEX  AND \nINTO \nTHE POSTERIOR LEFT ETHMOID BONE. \n2.  NONDISPACED  FRACTURES  OF  THE  LATERAL  LEFT \nORBITAL WALL AND LEFT ZYGOMATIC ARCH. \n3. PARANASAL SINUS HEMORRHAGE. \n \n The claimant was admitted to Washington Regional Medical Center on October 31, 2023, \nand was discharged on November 17, 2023. The claimant’s discharge was given the following \ndiagnosis: \nDischarge    Diagnosis:    1:    MVA,    unrestrained    passenger;    2: \nTraumatic  intracranial  hemorrhage;  3:  Fracture  of  temporal  bone; \n4: Fracture of left zygomatic arch; 5: Pneumothorax, left. \n \n\nOlson – H307648 \n \n-7- \n The  claimant  was  discharged  to  home  to  convalesce  and  referred  for  cognitive  therapy. \nHowever,  it  appears  that  the  claimant  was  never  provided  with  cognitive  therapy,  only  speech \ntherapy.  \n The  claimant  was  seen  by  Dr.  John  Kevin  Richter  at  Northern  Ark.  Regional  Medical \nCenter  in  Harrison,  Arkansas,  on  May  20,  2024,  for  speech  therapy.  Following  is  a  portion  of \nthat report: \nSpeech Initial Evaluation \nAdult Assessment \nDX: \nTraumatic Brain Injury (S06.9X9S) \nPost traumatic amnesia (R41.3) \nPt  is  a  34  y/o  male  referred  today  following  a  visit  with  PCP \nreporting  difficulty  with  short  term  memory.  Pt  hospitalized  for \napprox. 3 weeks following a MVA on 10/31/23. Pt was in the back \nseat asleep in work truck and involved in a single vehicle MVA. Pt \nwas unconscious with GCS of 3 upon arrival to scene. Pt intubated \non  the  scene  and  air  transport  to  Washington  Regional  Medical \nCenter.  Pt  was  dx  of  traumatic  intracranial  hemorrhage,  skull  fx, \npneumothorax  left  side,  fx  of  temporal  bone,  fx  of  left  zygomatic \narch. Pt d/c WRMC on 11/17/23 to home. Pt arrived today in good \nspirits  with  wife.  Pt  reports  he  has  been  having  difficulty  with \ncognitive functioning following TBI. Pt reports a significant loss of \nindependence secondary to cognitive deficits. Pt goals: To increase \nfunctional  status  for  more  independence  and  improved  memory. \nOral  motor  structure  and  function  was  evaluated.  Pt  exhibits  no \ndeficits with face, jaw, or lingual movement. \nSpeech is fluent and intelligible \nThe  Cognitive  Linguistic  Quick  Test  (CLQT)  was  given  to  assess \nstrengths  and  weaknesses  in  five  cognitive  domains  (attention, \nmemory, executive functions, language and visuospatial skills). \nThe following indicates the severity rating of pt performance: \nAttention: Within functional limits. \nMemory: Severely impaired. \nExecutive Functions; Within functional limits. \nLanguage: Mildly impaired. \nVisuospatial Skills Within functional limits. \nClock Drawing Severity Rating: Within functional limits. \nLinguistic/Aphasia: Mildly impaired. \nComposite Severity Rating: Within functional limits. \n\nOlson – H307648 \n \n-8- \n \nThe claimant was seen multiple times between May of 2024 and July of 2024 for speech therapy \nby or at the direction of Dr. Richter. \n The claimant has asked the Commission to determine whether he sustained compensable \ninjuries to his skull, brain and jaw on or about October 31, 2023. It is the claimant’s burden to \nprove by a preponderance of the evidence that his injuries are compensable.  \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \nA compensable injury is defined, in part, as an accidental injury which arises out of an in \nthe course of employment. A.C.A. §11-9-102(4)(A)(I). However, a compensable injury does not \ninclude an injury “inflicted upon the employee at a time when employment services were not \nbeing  performed.”  A.C.A.  §11-9-102(4)(B)(iii).   An   employee   is   performing   employment \nservices  when  they  are  doing  something  that  is  generally  required  by  his  or  her  employer. \nContinental Construction Co. v. Nabors, 2015 Ark. App. 60, 454 S.W.3d 762; White v. Georgia-\nPacific Corp., 339 Ark. 474, 478, 6 S.W.3d 98, 100 (1999). The same test is used to determine \nwhether  an  employee  is  performing  employment  services  as  is  used  when  determining  whether \nan employee is acting within the course and scope of employment. The test is whether the injury \noccurred  within  the  time  and  space  boundaries  of  the  employment,  when  the  employee  was \n\nOlson – H307648 \n \n-9- \ncarrying  out  the  employer’s  purpose  or  advancing  the  employer’s  interest  either  directly  or \nindirectly. Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1 (2002). \n The  claimant  clearly  has  objective  medical  findings  of  internal  harm  to  his  skull,  brain, \nand  jaw.  Those  are  evidenced  by  the  Washington  Regional  Medical  Center  medical  records, \nparticularly the CT scans that show definitively injury to all of the beforementioned body parts. \nThe claimant was within the course and scope of his employment at the time of the motor vehicle \naccident and in that period of time, performing employment services. The claimant had arrived at \nthe respondent’s place of business in Berryville in his own motor vehicle. The claimant clocked \ninto  work  and  loaded  into  the  respondent’s  vehicle  as  a  passenger to  be  transported  at  the \ndirection  of  the  respondent  to  that  day’s  work  area  in  Rogers,  Arkansas.  The  claimant’s \ntestimony is that he went to sleep while being transported to the worksite. However, the claimant \nhad  no  other  employment  duties  to  do  at  the  time  of  the  motor  vehicle  accident  other  than  to \nallow the respondent to transport him to the worksite. Clearly, the respondent had an interest in \nthe claimant arriving at the worksite which directly furthered the respondent’s interest. \n The claimant did not arrive at the worksite that day due to an accident in which he had no \npart of its course as he was asleep while being transported. Instead, a co-worker was driving the \nrespondent’s truck at the time of the accident which did cause the claimant’s injuries. \n The   respondent   in   this   matter   has   raised   the   Intoxication   Defense.   ACA §11-9-\n102(4)(B)(iv)(a)(b) states: \nCompensable injury does not include: \n \nInjury  where  the  accident  was  substantially  occasioned  by  the  use \nof    alcohol,    illegal    drugs,    or    prescription    drugs    used    in \ncontravention of physician’s orders. \n \nThe presence of alcohol, illegal drugs, or prescription drugs used in \n\nOlson – H307648 \n \n-10- \ncontravention  of  a  physician’s  orders  shall  create  a  rebuttable \npresumption   that   the   injury   or    accident    was   substantially \noccasioned  by  the  use  of  alcohol,  illegal  drugs,  or  prescription \ndrugs used in contravention of physician’s orders. \n \nThe Supreme Court analyzed the intoxication statute with regard to alcohol usage, in \nERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998), and \ndetermined the following: \n(1) Any amount   of   an   intoxicating   or   illegal   substance   invokes   the  \npresumption  that  the  injury  or  accident  was  substantially  occasioned  by \nthe use of the intoxicant or illegal substance. \n \n(2) Whether  a  rebuttable  presumption  is  overcome  by  the  evidence  is  a \nquestion of fact for the Commission to determine. \n \n(3) The  phrase,  \"substantially  occasioned  by\"  requires  that  there  be  a  direct \ncausal  link  between  the  use  of  an  intoxicant  or  illegal  substance  and  the \ninjury. \n \nArk.  Code  Ann. §11-9-102(4)(B)(iv)(a)-(d)  states  that  compensable  injuries  do  not  include \ninjuries  where  the  accident  was  substantially  occasioned  by  the  use  of  alcohol,  illegal  drugs,  or \nprescription drugs used in contravention of physician’s orders. The presence of alcohol, illegal \ndrugs, or prescription drugs used in contravention of a physician’s orders shall create a rebuttable \npresumption that the injury or accident was substantially occasioned by the use of alcohol, illegal \ndrugs, or prescription drugs used in contravention of physician’s orders. An employee is not \nentitled to compensation unless it is proven by a preponderance of the evidence that the alcohol \ndid not substantially occasion the injury or accident. \n The respondent introduced a medical document found at Respondents’ Exhibit 1, page 1, \ndated October 31, 2023, which does show a positive result for both amphetamines and cannabis. \nThat medical report is from Washington Regional Medical Center. This document in and of itself \nis enough to raise the rebuttal presumption of ACA §11-9-102. However, I note that the claimant \n\nOlson – H307648 \n \n-11- \ndid not dispute that marijuana or amphetamines would show up in his system. I also note that the \nclaimant was certain that cannabis would show up in his system but was unsure if amphetamines \nwould. \n However, here the claimant is able to rebut the presumption, in that the injury or accident \nwas not substantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used \nin the contravention of physician’s orders. In the present case, the claimant was being transported \nby the respondent while admittedly asleep. When the motor vehicle accident occurred, he had no \nrole or part in the incident that caused his injuries. Thus, his intoxication, if it was even present at \nthat time, could not have substantially occasioned the motor vehicle accident.  \n The claimant is able to rebut the presumption of intoxication. The claimant is also able to \nprove  by  a  preponderance  of  the  evidence  that  he  sustained  compensable  injuries  to  his  skull, \nbrain, and jaw on or about October 31, 2023. \n The claimant has asked the Commission to determine if he entitled to medical treatment \nfor his compensable skull, brain, and jaw injuries.  \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n I  have  reviewed  all  of  the  medical  records  submitted  by  the  parties  and  admitted  into \nevidence in this matter. I find that all of the treatment submitted into evidence is reasonable and \n\nOlson – H307648 \n \n-12- \nnecessary medical treatment for the claimant’s compensable injuries and shall be paid for by the \nrespondents.  That  payment  should  include  any  out-of-pocket  expenses  made  by  the  claimant.  I \ndo  note  that  the  claimant  was  referred  by  Washington  Regional  Medical  Center  for  cognitive \ntherapy, but it appears he has only had speech therapy. \n The claimant has asked the Commission to determine if he is entitled to temporary total \ndisability benefits from November 1, 2023, to a date yet to be determined.  \nIn order to be  entitled to temporary total disability benefits, the claimant  has the burden \nof proving by a preponderance of the evidence that he remains within his healing period and that \nhe suffers a total incapacity to earn wages as a result of his compensable injury. Arkansas State \nHighway  &  Transportation  Department  v.  Breshears, 272  Ark.  244,  613  S.W.  2d  392  (1981).\n From a review of the claimant’s speech therapy records it appears that he resumed work \nin July of 2024. The claimant, according to the claimant’s testimony and to medical records \nfound at Claimant’s Exhibit 1, page 78, he had applied for a job on  or before  July  7,  2024. \nMedical records also indicate the claimant began and obtained a job or employment on or before \nJuly  15,  2024.  The  claimant  is  entitled  to  temporary  total  disability  benefits  until  he  began  his \nemployment. \n In  review  of  the  evidence  before  the  Commission,  I  find  the  claimant  is  entitled  to \ntemporary  total  disability  benefits  from  November  1,  2023,  until  that  date  that  he  began \nemployment in July of 2024, which is a date between July 7, 2024, and July 15, 2024.  \nThe claimant has also proven by a preponderance of the evidence his attorney is entitled \nto an attorney’s fee in this matter, set forth in the Arkansas Workers’ Compensation Act. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \n\nOlson – H307648 \n \n-13- \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJuly 28, 2025, and contained in a Pre-hearing Order filed July 30, 2025, are hereby accepted as \nfact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  sustained \ncompensable injuries to his skull, brain, and jaw on or about October 31, 2023. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nmedical treatment for his skull, brain, and jaw injuries. This payment should include any out-of-\npocket expenses made by the claimant. \n 4. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \ntemporary total disability benefits from November 1, 2023,  until    that    date    that    he    began \nemployment in July of 2024, which is a date between July 7, 2024, and July 15, 2024. \n 5.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney’s fee set forth in the Arkansas Workers’ Compensation Act. \n 6. The  respondents  successfully  raised  the  rebuttable  presumption  of  Intoxication; \nhowever, the claimant was able to successfully rebut that presumption. \n ORDER \nThe  respondents  shall  pay  for  reasonable  and  necessary  medical  treatment  associated \nwith the claimant’s compensable skull, brain, and jaw injuries. \n\nOlson – H307648 \n \n-14- \nThe   respondents   shall   pay   the   claimant   temporary   total   disability   benefits   from \nNovember  1,  2023,  until  that  date  that  he  began  employment  in  July  of  2024,  which  is  a  date \nbetween July 7, 2024, and July 15, 2024. \nThe respondents shall pay to the claimant's attorney the maximum statutory attorney's fee \non the benefits awarded herein, with one half of said attorney's fee to be paid by the respondents \nin addition to such benefits and one half of said attorney's fee to be withheld by the respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":25316,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H307648 JOSHUA OLSON, Employee CLAIMANT J. WILLIAMS CONTRACTOR, LLC, Employer RESPONDENT STONETRUST INSURANCE, Carrier RESPONDENT OPINION FILED DECEMBER 17, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansa...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["fracture","back","tbi"],"fetchedAt":"2026-05-19T22:33:53.560Z"},{"id":"alj-H403979-2025-12-16","awccNumber":"H403979","decisionDate":"2025-12-16","decisionYear":2025,"opinionType":"alj","claimantName":"James Planek","employerName":"L.V.L. Inc","title":"PLANEK VS. L.V.L. INC. AWCC# H403979 December 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Planek_James_H403979_20251216.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Planek_James_H403979_20251216.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H403979 \n \nJAMES PLANEK, \nEMPLOYEE                                                                                                              CLAIMANT \n \nL.V.L. INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nGREAT WEST CASUALTY COMPANY, \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED DECEMBER 16, 2025 \n \nHearing conducted on Tuesday, October 21, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant is Pro Se, of Cabot, Arkansas.  \n \nThe Respondents were represented by Mr. Eric Newkirk, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non May 1, 2025.  A hearing on the motion was conducted on October 21, 2025, in Little Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as driver. The date for Claimant’s \nalleged injury was on June 13, 2024. This incident was reported to the Respondent/Employer on \nJune   14,   2024. Admitted   into   evidence   was Respondents’  Exhibit 1,   pleadings,   and \ncorrespondence, consisting of 17 pages, and Commission Ex. 1, pleadings, correspondence, and \nU.S. Mail return receipts, consisting of 10 pages, as discussed infra. \nThe  record  reflects  on September 3, 2024,  a  Form  AR-C  was  filed by  Claimants  then-\nattorney, Gary Davis, purporting that Claimant sustained an injury to his low back while getting \n\nPLANEK, AWCC No. H403979 \n \n2 \n \nout of his truck. On June 21, 2024, a Form AR-1 was filed with the Commission noting that the \ntype of back injury experienced by Claimant was a strain. On June 24, 2024, a Form AR-2 was \nfiled denying compensability but  had  the  date  of  injury  as  June  6,  2024. On  August  26,  2024, \nRespondents filed an amended Form AR-2 correcting the day of injury as June 13, 2024.    \nRespondents filed a Motion to Dismiss due to Claimant’s failure to prosecute his claim on \nMay 1, 2025. Claimant’s then-attorney opposed the motion in writing while simultaneously filed \na Motion to be Relieved as Counsel on May 5, 2025.  Claimant’s then-attorney, Gary Davis, reason \nfor the withdrawal request was the Claimant’s lack of communication with him. Mr. Davis motion \nwas  granted  on  June  24,  2025. The  Respondents  renewed  their  motion  to  dismiss  for  lack  of \nprosecution. The  Claimant  was  sent, on August 4,  2025, notice  of  the  Motion  to  Dismiss, via \ncertified and regular U.S. Mail, to his last known address. The certified motion notice was claimed \nby Claimant as noted on the August 7, 2025, return receipt. This notice was also sent regular U.S. \nMail and did  not  return  to  the  Commission. Despite  this,  the  Claimant  did not respond  to  the \nMotion, in writing, as required. Thus, in accordance with applicable Arkansas law, the Claimant \nwas mailed due and proper legal notice of Respondents’ Motion to Dismiss hearing date at her \ncurrent address of record via the United States Postal Service (USPS), First Class Certified Mail, \nReturn  Receipt  Requested,  and  regular  First-Class  Mail,  on September 10,  2025.  The  certified \nnotice was not claimed as noted by the September 18, 2025, return receipt. Likewise, the hearing \nnotice  sent  regular  First-Class  was  not  returned  to  the  Commission. The  hearing  took  place  on \nOctober 21, 2025. And as mentioned before, the Claimant did not show up to the hearing. \n \n \n \n\nPLANEK, AWCC No. H403979 \n \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the October 21, 2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was claimed by Claimant, per the return postal notice bearing the September 18, 2025, date. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \n\nPLANEK, AWCC No. H403979 \n \n4 \n \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \nAR-C  on September  3,  2024.  Since  then,  he  has  failed  to communicate  with  his  then-attorney, \nrespond to discovery, and request a bona fide hearing. Therefore, I do find by the preponderance \nof  the  evidence  that  Claimant  has  failed  to  prosecute  his claim. Thus, Respondents’ Motion to \nDismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law  set  forth  above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6307,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H403979 JAMES PLANEK, EMPLOYEE CLAIMANT L.V.L. INC., EMPLOYER RESPONDENT GREAT WEST CASUALTY COMPANY, CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 16, 2025 Hearing conducted on Tuesday, October 21, 2025, before the Arkansas Workers’ Compensation Commission (...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["back","strain"],"fetchedAt":"2026-05-19T22:33:45.302Z"},{"id":"alj-H203103-2025-12-15","awccNumber":"H203103","decisionDate":"2025-12-15","decisionYear":2025,"opinionType":"alj","claimantName":"Jennifer Bricker","employerName":"Dept. Of Correction","title":"BRICKER VS. DEPT. OF CORRECTION AWCC# H203103 December 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Bricker_Jennifer_H203103_20251215.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bricker_Jennifer_H203103_20251215.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203103 \n \nJENNIFER BRICKER, EMPLOYEE   CLAIMANT \n \nDEPT. OF CORRECTION, EMPLOYER   RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA  RESPONDENT \n \nOPINION FILED DECEMBER 15, 2025 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on October 24,  2025,  in Jonesboro, \nCraighead County, Arkansas. \n \nClaimant was represented by Mr. Daniel E. Wren, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  were  represented  by  Mr. Robert  H.  Montgomery, Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  full  hearing  was  held  on  this  claim  on October 24,  2025.  A  prehearing  telephone \nconference  took  place  on July 15,  2025.  A  prehearing  order  was  entered  on the  same  day, and \nsubsequently  entered  into  evidence  as  Commission  Exhibit  1,  with  amendments. The  parties \nconfirmed the stipulations and the issues at the hearing. The parties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. An  employer/employee/carrier/tpa relationship  existed  on  February  17, \n2022, when Claimant sustained a compensable injury to her right shoulder. \n \n3. The Respondents accepted the claim and has paid some benefits. \n \n4. Claimant’s average weekly wage was $995.93, entitling her to temporary \ntotal disability (TTD) benefit rate of $664.00 weekly, and a permanent \npartial disability (PPD) benefit rate of $498 weekly.  \n \n \n\nBRICKER H203103 \n \n2 \n \nISSUES \n \nBy agreement of the parties, the issues to be presented at the hearing are as follows: \n1. Whether Claimant is entitled to additional reasonable and necessary medical treatment \nfor her stipulated compensable right shoulder injury. \n \n2. Whether Claimant is entitled to additional TTD benefits from September 12, 2024, until \na date to be determined. \n \n3. Whether Claimant is entitled to additional PTD benefits. \n \n4. Whether Claimant is entitled to wage loss disability benefits\n1\n. \n \n5. Whether Claimant’s attorney is entitled to a controverted attorney’s fee. \n \nAll other issues are reserved. \n \nCONTENTIONS \nClaimant contends: \nClaimant sustained an on-the-job injury to her right shoulder on February 17, 2022, when \nshe slipped and fell on the wet stairs. She has undergone three right shoulder surgeries:  the 1\nst\n \nsurgery being performed on August 23, 2022, by Dr. Guinn to repair a labral tear; and second \nsurgery on August 21, 2023, and the third surgery on April 1, 2024, were performed by Dr. Eric \nGordon for repairs of the same tear. \n On August 5, 2024, Claimant had a 3-phase bone scan that indicated an atypical \npresentation of complex regional pain syndrome (CRPS). On August 20, 2024, the Claimant was \nseen by Dr. Gordon who recommended that she be seen by the following medical providers: \n NEA Baptist Pain Management \n St. Bernard’s Physical Therapy \n NEA Rheumatology \n \n1\n The issue here is regarding wage loss benefits, not “lost wages” so this issue was re-written for clarity. \n\nBRICKER H203103 \n \n3 \n \n On August 30, 2024, Claimant received a message from Dr. Gordon’s nurse, Rhonda, \nstating that she does not need to do formal therapy.  Sometime later this order was changed, with \nthe explanation that it was a mistake, and that Claimant needs formal therapy. On September 12, \n2024, the Respondents discontinued temporary total disability benefits for the Claimant, alleging \nthat she had not been cooperative with physical therapy. \n Respondents have failed and refused to provide reasonable medical treatment for the \nClaimant and refused to make referrals to the medical providers as stated by Dr. Gordon. On \nOctober 9, 2024, Dr. Gordon released the Claimant at maximum medical improvement (MMI) \nbut, again, Dr. Gordon suggested that she see a rheumatologist, which had been denied by the \nRespondents. Although Dr. Gordon placed the Claimant at MMI on October 9, 2024, he stated \nthat she should see a rheumatologist and placed her on work restrictions until she saw a doctor \nfor CRPS. The Respondents forced the Claimant to come to Little Rock and see Dr. Carlos \nRoman instead of the pain management doctor in Northeast Arkansas to whom she had been \nreferred to by Dr. Gordon. \n Eventually, the Claimant sought treatment on her own with Dr. Justin Rabinowitz. Dr. \nRabinowitz indicated that the Claimant has signs of CRPS. He also noted that an MRI performed \nin April 2025 showed fraying of the interior inferior labrum and fraying of the adjoining \nchondral surface. The MRI also showed redundant suture material along the end, the inferior \naspect of the glenoid. Dr. Rabinowitz has stated that he is somewhat reluctant to do another \nsurgical procedure on the Claimant’s shoulder for fear of aggravating her CRPS. Dr. Rabinowitz \nhas referred the Claimant to Dr. Jianbin Zheung for ganglion blocks. \n \n \n\nBRICKER H203103 \n \n4 \n \n \nRespondents contend: \n \n The Claimant reported injuring her right shoulder on February 17, 2022.  The \nRespondents accepted the claim as compensable and have paid indemnity benefits to Claimant as \nwell as related medical expenses.  The Claimant came under the care of Dr. Spencer Guinn, and \nthe Claimant was found to be at MMI and released to return to work on May 12, 2023.  Dr. \nGuinn assigned a permanent impairment rating of three percent (3%) to the body as a whole, and \nRespondents paid appropriate PPD benefits towards this rating. \n The Claimant then came under the care of Dr. Gordon, who performed surgery on August \n21, 2023.  The Respondents paid TTD benefits through September 11, 2024, and discontinued \nTTD payments at that time due to the Claimant’s non-compliance with recommended medical \ntreatment. \n The Respondents contend that all appropriate indemnity benefits have been paid to the \nClaimant.  The Claimant is not entitled to additional TTD benefits.  The Claimant is not entitled \nto wage-loss disability benefits, and she is not permanently and totally disabled. \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary record, and having the opportunity to hear testimony of the Claimant and to observe \nher demeanor, I hereby make the following Findings of Fact and Conclusions of Law in accordance \nwith Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant has failed to prove by the preponderance of the evidence that she is \nentitled to additional medical treatment for her compensable right shoulder injury. \n\nBRICKER H203103 \n \n5 \n \nMoreover,  the  treatment  the  Claimant  received  from Nurse Practitioner Wray, Dr. \nRabinowitz, Dr. Vecchiarelli, and Dr. Zheng, was  unauthorized  and  the  Respondents \nare not financially responsible for that treatment or associated expenses. \n \n4. The Claimant has proven by the preponderance of the evidence that she is entitled to \nTTD benefits from September 12, 2024, to October 29, 2024, but has failed to prove \nby  the  preponderance  of  the  evidence  that  she  is  entitled  to  additional  TTD  benefits \nafter October 29, 2024. \n \n5. The  Claimant  has  failed  to  prove  by  the  preponderance  of  the  evidence  that  she  is \nentitled to PTD benefits. \n \n6. The  Claimant  has  failed  to  prove  by  the  preponderance  of  the  evidence  that  she  is \nentitled to wage loss benefits. \n \n7. The Claimant’s attorney is entitled to a controverted attorney’s fee. \n \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, medical records, consisting of 386 pages; \nClaimant’s Exhibit 2, correspondence and transcription, consisting of 13 pages; Claimant’s Exhibit \n3, photographs  of  Claimant’s  hands, consisting  of  3  pages; Respondents’  Exhibit  1, \ncorrespondence,  pleadings,  medical  reports,  consisting  of 33  pages; Respondents’  Exhibit  2, \nmedical records, consisting of 11 pages; Commission Exhibit 1, Pre-Hearing Order filed July 15, \n2025, with amendments, consisting of 8 pages. The Claimant was the only witness testifying at the \nfull hearing.  \nThe Claimant was employed as a sergeant for the Respondent Employer. The Claimant \ninjured her right shoulder on February 17, 2022, when she slipped on some wet stairs. This injury \nwas accepted as compensable by the Respondents. On February 18, 2022, the Claimant went to \nthe Paragould Urgent Care and was seen by Mr. Garrett Wray, Nurse Practitioner, for treatment of \nher right shoulder. CL Ex. 1, pp. 1-5. The Claimant underwent an x-ray that revealed no acute \n\nBRICKER H203103 \n \n6 \n \nfractures, that her bones maintained normal alignment, and that her soft tissues was unremarkable. \nId. Despite this, Mr. Wray discussed the possibility of a rotator cuff injury and referred Claimant \nto an orthopedic specialist. Id. The Claimant was also provided anti-inflammatory medication \nduring that visit. Id.  \nOn March 9, 2022, the Claimant saw Dr. Ron Schecter at the Northeast Arkansas Baptist \nClinic. CL Ex. 1, pp. 6-10. Dr. Schecter’s physical examination revealed no obvious swelling, \ndeformity, or atrophy noted to her right shoulder. Id. She did have tenderness to palpation anteriorly \nin the neck and over the shoulder. Id.  Dr. Schecter assessed Claimant with contusions of multiple \nareas of her right shoulder and acute pain of the right shoulder. Id. Dr. Schecter treated her shoulder \nwith a steroid injection since she did not want to go further into a diagnosis of a torn rotator cuff \nand possible surgery. Id. Dr. Schecter advised Claimant that if conservative measures were not \nhelping, an MRI and surgery might be considered for relief. Id. \nEventually, Claimant was found to have a rotator cuff tear and underwent a right shoulder \narthroscopy with anterior labral repair on August 23, 2022, by Dr. Guinn. Resp. Ex. 2, pp. 7-9. Dr. \nGuinn put Claimant on maximum medical improvement on April 24, 2023. Id. Dr. Gordon, an \northopedic surgeon, performed an arthroscopic surgery on Claimant’s right shoulder to repair a \nrecurrent labral tear on August 21, 2023; this was repeated on April 1, 2024. Id. and CL Ex. 1, pp. \n79-84. On August  20, 2024,  Claimant  had  a  follow-up  with  Dr.  Gordon complaining  about \ndifficulty with postoperative recovery and persistent pain. CL. Ex. 1, pp. 106-112. Prior to this \nvisit, Dr. Gordon ordered a bone scan, administered on August 5, 2024, due to concerns for possible \nCRPS. Id. The report, per the radiologist, indicated decreased uptake in the right hand and wrist \nduring the angiographic and blood pool phases of the exam. Id. This could, according to the report, \nrepresent atypical presentation of CRPS. Id. The report also noted an uptake in the right shoulder \n\nBRICKER H203103 \n \n7 \n \nthat was likely degenerative or post-surgical in nature. Id. Claimant reported persistent pain in \nevery joint in her body since the bone scan. Id.  \nDr. Gordan believed Claimants right upper extremity pain was likely multifactorial with \nsome contribution from CRPS or other yet-to-be-determined factors. Id. Dr. Gordon did not \nexclude  suspicion  for  possible  rheumatologic  disease  as  well. Id.  Therefore,  Dr.  Gordon \nrecommended an evaluation with a pain specialist, a rheumatologist, and physical therapist at the \nRespondents’ discretion. Id. While  waiting  on  Respondents’ approval  of  Dr.  Gordon’s \nrecommendation, the Claimant took it upon herself to return to her original treating professional, \nMr. Garrett Wray, nurse practitioner, on September 4, 2024, and again on October 2, 2024, for \nissues of pain. CL Ex. 1, pp. 113-123. On October 9, 2024, Claimant had a follow-up with Dr. \nGordon, a little more than five months after her surgery. CL Ex. 1, pp. 124-131. There, she \ncomplained about having some continued difficulty with pain and limited use of her shoulder. Id. \nClaimant had not seen a physical therapist, rheumatologist, or a pain management specialist during \nthe time of this visit. Id. However, since Claimant had basically achieved full shoulder range of \nmotion, Dr. Gordon believed that physical therapy would not be necessary. Id. Dr. Gordon still \nmaintained that  the  Claimant  should continue work  restrictions  until  she  completes  a  pain \nmanagement evaluation. Id. If the pain management specialist does not believe the Claimant has \nCRPS, Dr. Gordon further recommended a functional capacity evaluation. Id. \nOn October 9, 2024, Dr. Gordon opined that Claimant has reached MMI. CL Ex. 1, pp. \n124-127. In a letter dated November 6, 2024, he reiterated the Claimant has reached MMI and \nsustained a five percent (5%) impairment to the right upper extremity and three percent (3%) \nimpairment to the whole person. Resp. Ex. 2, p. 10. There was a miscommunication in dealing \nwith Dr. Gordon’s office and the need for physical therapy. See CL. Ex. 1, pp. 124-127. His nurse, \n\nBRICKER H203103 \n \n8 \n \nRhonda Newton, incorrectly told the Claimant that she did not need any additional physical \ntherapy. The Claimant did not attend physical therapy, which resulted in her losing her TTD \nbenefits on September 11, 2024, due to her failure to comply with medical treatment. Respondents \nconcede there may be a week or two of TTD benefits owed to the Claimant after September 12, \n2024. TR-63. They stated on record that they will endeavor to determine what is owed to Claimant. \nId.  \nDuring that October 9, 2024, clinic visit, Dr. Gordon was transparent and discussed seeing \npictures from a private investigator that portrayed her carrying objects with her right arm - \nspecifically, what appeared to be three 12-packs of soda and groceries. Id. Dr. Gordon did not note \nClaimant’s response. Dr. Gordon also stated, from an orthopedic standpoint, that he thinks “she \nhas reached basically the end of her treatment....” He added that he did not see “any other \nintervention” that he would perform on her. Id. Nevertheless, he concluded his visit with noting \nthat  seeing  a  rheumatologist  is  “not  specifically  related  to  her  work  injury  necessarily,  but \nsomething she could seek under her regular health care insurance.” Id. \nOn October 29, 2024, the Claimant visited Dr. Roman, a pain management specialist, for \nan Independent  Medical  Evaluation (IME); and he opined  that  she  is  at  maximal  medical \nimprovement and no further interventions or procedures need to be done. Resp. Ex. 2, pp. 7-9. He \nalso opined that looking at her bone scan that she does not have CRPS of the right upper extremity \nbut does have some ankylosis of the right shoulder and ongoing pain in the right shoulder. Id. Dr. \nRoman recommended home therapy and a regimen of meloxicam done daily for the next three to \nsix months. Id. Based on Claimant’s previous functional capacity test, Dr. Roman stated she is at \na medium duty classification and that she “definitely needs” to find her way back to work. Id.  \n\nBRICKER H203103 \n \n9 \n \nOn December 4, 2024, Claimant met with Cecilia A. Brunson, a vocational rehabilitation \nconsultant, at Systemedic, to work on getting Claimant employment. Resp. Ex. 1, pp. 24-32. Ms. \nBrunson opined that Claimant “will be able to return to the workforce in the future to a job that is \nwithin her work limitations.” Id. Ms. Brunson furnished Claimant a list of job openings that would \nsuit the Claimant. Id. But the Claimant, as of the date of the full hearing, testified that she has made \nno  efforts since  resigning  from  the  Respondent/Employer to  secure  employment, including \napplying for the job openings presented to her by Ms. Brunson. TR 45-46. Claimant admitted on \nthe record that she stated in a July 24, 2025, deposition that unless she could find a job in law \nenforcement, she would not be going back to work. Id. and TR-46. Claimant also admitted on the \nrecord that she stated during her deposition that she does not see a future in her working anywhere. \nId.   \nThe Claimant further testified that she had to drop out of nursing school on the advice of \nDr. Gordon. Id. However, there is no evidence confirming that Dr. Gordon stated the Claimant \ncould not complete nursing school. The Claimant later admitted that she tried to re-enroll in school \nbut could not because she did not have the funds to pay for the courses. TR-47-48. Nevertheless, \nClaimant still testified that she is willing to do any job. Id.  \nOn January 17, 2025, Claimant again decided to return to Mr. Wray without the approval \nof Respondents, due to continuous right shoulder pain.  CL Ex. 1, pp. 162-167. Mr. Wray made an \nambulatory referral for orthopedic surgery for Claimant. Id. On March 11, 2025, Claimant met \nwith Dr. Rabinowitz, an orthopedic surgeon, with complaints of shoulder pain. CL Ex. 1, pp. 168-\n233. Dr. Rabinowitz’s impression was that she was a “36-year-old female with concern for biceps \ntendinitis versus CRPS.” Id. Dr. Rabinowitz noted that the Claimant “does display signs of CRPS \nin the form of temperature changes, swelling, and reduced sensation when compared to the \n\nBRICKER H203103 \n \n10 \n \ncontralateral upper extremity.” Id. He ordered an MRI arthrogram of the right shoulder to evaluate \nlabral and biceps pathology. Id.  \nOn  March  18,  2025,  Claimant  met with  Dr.  Jonathan Vecchiarelli, a pain  specialist, \nconcerning muscle pain/myalgia and joint pain. CL Ex. 1, pp. 234-239. Dr. Vecchiarelli noted that \nhe believes that most of Claimant’s total body pain is due to myalgia, possibly from a bad reaction \nto the dye used along with the significant dose of radiation from the bone scan. Id. The doctor \nconcluded that her symptoms could be radiation-induced myalgia. Id. On April 16, 2025, Claimant \nhad a follow-up visit with Vecchiarelli with the same complaint of pain. CL Ex. 1, pp. 240-259. \nHe then diagnosed Claimant with CRPS of the right upper extremity based on the revised CRPS \nBudapest clinical diagnostic criteria. Id.  \nOn May 6, 2025, Claimant met with Dr. Rabinowitz via telephone visit to review her MRI \narthrogram. CL Ex. 1, pp.295-312. The doctor noted that he could not appreciate a significant re-\ntear. Id. He recommended that Claimant undergo further treatment for CRPS prior to considering \na repeat arthroscopic shoulder procedure. Id. Dr. Rabinowitz noted that he was worried the surgery \ncould make Claimant’s CRPS symptoms worse. Id. He recommended that Claimant go back to her \nlocal pain specialist and see about getting ganglion blocks. Id.  \nOn May 14, 2025, the Claimant met again with Dr. Vecchiarelli concerning her pain and \nwas scheduled for a ganglion block with Dr. Zheung for CRPS. Id. On May 21, 2025, and again \non June 4, 2025, Claimant met with Dr. Zheng, who performed a right C6 cervical symptomatic \nganglion block. CL Ex 1, pp. 319-334. On June 12, 2025, Claimant met with Dr. Vecchiarelli \nconcerning her CRPS type 1 of the right upper extremity. CL Ex. 1, pp. 335-342. The Claimant \nreported that her pain did not decrease with the ganglion block. Id. On July 10, 2025, she visited \nwith Dr. Vecchiarelli, complaining about CRPS of her right arm. CL Ex. 1, pp. 343-350. The \n\nBRICKER H203103 \n \n11 \n \nClaimant reported that the prescribed Narco medication reduces her pain from a 10 to a 9. Id. She \nalso reported that the drug improves her daily function and quality of life. Id. The Claimant denied \nany use of the medication that is not in accordance with the provider’s prescription or plan. Id. She \nstated that she was not interested in further injections for her pain. Id. Dr. Vecchiarelli wrote a \nletter, stating that the Claimant is not able to work due to her CRPS. CL Ex. 1, p. 351.  \nOn August 8, 2025, the Claimant returned to Dr. Vecchiarelli concerning her CRPS pain. \nCL Ex. 1, pp. 352-359. She reported that her pain was a 10 on NRS without the medication, but a \n5 with medication. Id. Claimant received acupuncture for her shoulder pain. Id. On August 21, \n2025, the Claimant had another follow-up visit with Dr. Vecchiarelli concerning her shoulder pain. \nCL Ex. 1, pp. 360-368. Despite all the treatment received for her pain, the Claimant testified that \nher condition has not improved. The medical treatment administered by Mr. Wray, Dr. Rabinowitz, \nDr. Zheng, and Dr. Vecchiarelli were not authorized, according to the Respondents. Moreover, the \nClaimant has not requested a change of physician for treatment by these medical providers. The \nClaimant signed a form AR-N on April 14, 2022. Resp. Ex. 1, pp. 1-2.    \nAdjudication \nA. Whether  Claimant  is  entitled  to  additional  reasonable  and  necessary  medical \ntreatment for her compensable right shoulder injury. \n \n Arkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states that an employer shall \nprovide for an injured employee such medical treatment as may be necessary in connection with \nthe injury received by the employee.  Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d \n153 (2003).  But employers are liable only for such treatment and services as are deemed necessary \nfor the treatment of the claimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d \n857 (1987).  The claimant must prove by a preponderance of the evidence that medical treatment \nis reasonable and necessary for the treatment of a compensable injury.  Brown, supra; Geo \n\nBRICKER H203103 \n \n12 \n \nSpecialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The standard “preponderance \nof the evidence” means the evidence having greater weight or convincing force.  Barre v. Hoffman, \n2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947).  What constitutes reasonable and necessary medical treatment is a question of fact for \nthe Commission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); \nWackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission.  White v. Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness but may accept and translate into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \n Claimant has a compensable right shoulder injury in the form of a torn rotator cuff. She \nunderwent three shoulder surgeries, one performed by Dr. Guinn and the other two by Dr. Gordon \non August 21, 2023, and April 1, 2024. The Claimant also received pain treatment by Dr. Roman. \nThese treatments were paid for by the Respondents. Dr. Roman stated in his IME report that \nClaimant reached maximum medical improvement for her injury on October 29, 2024. Resp. Ex, \n2, pp. 7-9. I credit this report and find by the preponderance of the evidence that Claimant’s healing \nperiod ended on October 29, 2024. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d \n878 (2002). \n Despite having multiple surgeries, the Claimant continued to complain about pain in her \nright shoulder and subsequently visited Nurse Practitioner Wray, Dr. Rabinowitz, Dr. Vecchiarelli, \n\nBRICKER H203103 \n \n13 \n \nand Dr. Zheng, all without Respondents’ authorization, after being released by Dr. Roman. The \nClaimant did, however, visit with Wray before she was released by Dr. Roman; but it, too, was \nunauthorized by the Respondents.  \n Nevertheless, it must be considered that the Arkansas Court of Appeals has held that a \nclaimant may be entitled to additional treatment, even after the healing period has ended, if said \ntreatment is geared toward management of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 \nArk. App. 230, 184 S.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the nature and \nextent  of  the  compensable  injury;  reducing  or  alleviating  symptoms  resulting  from  the \ncompensable injury; maintaining the level of healing achieved; or preventing further deterioration \nof the damage produced by the compensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. \n100, 911 S.W.2d 593 (1995); Artex, supra.  A claimant is not required to furnish objective medical \nevidence of her continued need for medical treatment.  Castleberry v. Elite Lamp Co., 69 Ark. App. \n359, 13 S.W.3d 211 (2000). \n Without question, the Claimant was seeking relief from her right shoulder pain. However, \nRespondents have also argued that any treatment Claimant has undergone with Nurse Practitioner \nWray, Dr. Rabinowitz, Dr. Vecchiarelli, and Dr. Zheng were unauthorized, and that Respondents \nare not responsible for the costs associated with that treatment.  In Tempworks Mgmt. Servs. v. \nJaynes, 2023 Ark. App. 147, 662 S.W.3d 280, the Arkansas Court of Appeals wrote: \nBriefly, Ark. Code Ann. § 11-9-514(c)(1) requires an employer or insurance carrier \nto deliver a Commission-approved notice to the employee “which explains the \nemployee’s  rights  and  responsibilities  concerning  change  of  physician.”  \nUnauthorized medical expenses incurred after the employee has received the notice \nare not the employer’s responsibility.  Id. § 11-9-514(c)(3).  But if the employee is \nnot furnished a copy of the notice, the change-of-physician rules don’t apply. \n \n\nBRICKER H203103 \n \n14 \n \nThe change-of-physician rules do not apply absent proof that the claimant received a copy of the \nrules from the Respondents either in person or by certified registered mail.  Ark. Code Ann. § 11-\n9-514(c)(1)-(2) (Repl. 2012).  See also Jaynes, supra; Stephenson v. Tyson Foods, Inc., 70 Ark. \nApp. 265, 19 S.W.3d 36 (2000). \n The preponderance of the evidence in this matter establishes that Claimant did receive a \ncopy of these rules.  Claimant, through her attorney, admitted at the full hearing that she was given \nand signed the two-sided Form AR-N, a copy of which is in evidence. TR-58-59; Resp. Ex. 1, pp. \n1-2. Thus, I find by the preponderance of the evidence that the treatment received by Claimant \nfrom Nurse Practitioner Wray, Dr. Rabinowitz, Dr. Vecchiarelli, and  Dr. Zheng, was in fact \nunauthorized; as a result, the Respondents are not responsible for the cost of those or any other \nunauthorized medical services.   \nB. Whether Claimant is entitled to additional Temporary Total Disability Benefits \nfrom September 12, 2024, until a date to be determined. \n \nIn  this  proceeding,  Claimant  has  also  claimed  entitlement  to additional temporary  total \ndisability benefits from September 12, 2022, until a date to be determined.  Respondents stipulated \nthat they did pay some benefits under the claim but maintained that Claimant was not entitled to \nadditional temporary total disability benefits. \n The injury to Claimant’s right shoulder is unscheduled.  See Ark. Code Ann. § 11-9-521 \n(Repl. 2012).  An employee who suffers a compensable unscheduled injury is entitled to temporary \ntotal disability compensation for that period within the healing period in which she has suffered a \ntotal incapacity to earn wages.  Ark. State Hwy. & Transp. Dept. v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981).  The healing period ends when the underlying condition causing the disability \nhas become stable and nothing further in the way of treatment will improve that condition.  Mad \nButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). \n\nBRICKER H203103 \n \n15 \n \n I have previously found that Claimant’s healing period ended on October 29, 2024. The \nRespondents admitted on the record that there was confusion regarding the need of physical \ntherapy and may have prematurely ended Claimant’s TTD benefits on September 11, 2024, instead \nof the end-date of the healing period. TR-63. Respondents further announced to the Commission \nthat they will review and make good on this error by paying any TTD benefits they owe. Id. The \nevidence preponderates that Claimant was not capable of working and was still in her healing \nperiod when Respondents prematurely ended her benefits on September 11, 2024. Therefore, I find \nby the preponderance of the evidence that Respondents owe the Claimant TTD benefits from \nSeptember 12, 2024, to October 29, 2024.  \nThe Claimant, however, argues that she is still unable to work and remains in her healing \nperiod beyond Dr. Roman’s MMI date of October 29, 2024. Thus, she claims she is entitled to \nadditional TTD  benefits  beyond  the  October  29,  2024,  healing  period  date  that  Dr.  Roman \nprescribed. The Claimant relies on a letter by Dr. Vecchiarelli dated August 5, 2025, that states the \nClaimant has been his patient since March 2025, and that in his professional opinion, she is unable \nto work due to CRPS. CL Ex. 1, p. 351. On August 8, 2025, Dr. Vecchiarelli further opined that \nmost of Claimant’s total body pain is due to myalgia, possibly from a bad reaction to a dye that \nwas used in conjunction with high radiation from the bone scan. CL Ex. 1, pp. 352-359.  \nAgain, I have credited Dr. Roman’s IME report in finding that the end of Claimant’s healing \nperiod was October 29, 2024. Nothing has occurred to re-open the Claimant’s healing period for \nher compensable right shoulder injury. Dr. Vecchiarelli stated that Claimant’s total body pain is a \nresult of myalgia. He also stated that the Claimant is unable to work due to her CRPS. However, \nthe Claimant has not asked the Commission to consider whether Claimant’s diagnosis of myalgia \nor CRPS is a compensable consequence of her compensable right shoulder injury. Thus, these \n\nBRICKER H203103 \n \n16 \n \nissues are reserved and shall not be considered in this opinion. Therefore, the Claimant has failed \nto show by the preponderance of the evidence that she has re-entered a new healing period or \nremained in her original healing period concerning her compensable right shoulder injury.  \nC. Whether Claimant is entitled to Permanent Total Disability benefits. \n \nClaimant has further contended that as a result of her compensable right shoulder injury, \nshe is permanently and totally disabled. Respondents have argued otherwise. \n The term “permanent total disability” is defined in the statute as “inability, because of \ncompensable injury or occupational disease, to earn any meaningful wages in the same or other \nemployment.”  Ark. Code Ann. § 11-9-519(e)(1) (Repl. 2012).   \n Dr. Roman stated that Claimant reached the end of her healing period on October 29, 2024. \nThe Claimant has provided a statement from Dr. Vecchiarelli that states the Claimant is unable to \nwork due to pain from CRPS, not the compensable right shoulder torn rotator cuff. CL Ex 1, p. \n351. Again, the Claimant’s CRPS is not a stipulated compensable injury, nor was I asked to rule \non its compensability. As previously stated, the issues of myalgia and CRPS being compensable \nconsequence injuries are reserved. Also, as previously stated, during the full hearing Claimant \nadmitted that she stated in her deposition that she has no intention of finding a job unless it is in \nlaw enforcement. The Claimant testified that she has not sought out any meaningful employment \nof any nature. TR-46. After reaching MMI, the Claimant met with Ms. Brunson, a vocational \nrehabilitation consultant, to assist her in re-entering the workforce. Resp. Ex. 1, pp. 24-32. Ms. \nBrunson provided Claimant with multiple job leads, and Claimant refused to apply for any of the \nlisted jobs, all of which fit her skill set. Id. and TR-46. Claimant testified that she wants to work \nbut has made no effort to do so. Thus, Claimant has failed to prove by the preponderance of the \nevidence that she is entitled to permanent total disability benefits.    \n\nBRICKER H203103 \n \n17 \n \nD. Whether Claimant is entitled to wage loss benefits. \n \nThe Claimant has asserted in the alternative, that she is entitled to wage loss disability \nbenefits over and above her impairment rating.  Respondents have argued otherwise. Claimant’s \nentitlement to wage loss disability benefits is controlled by § 11-9-522(b)(1) (Repl. 2012), which \nstates: \nIn considering claims for permanent partial disability benefits in excess of the \nemployee’s  percentage  of  permanent  physical  impairment,  the  Workers’ \nCompensation Commission may take into account, in addition to the percentage of \npermanent physical impairment, such factors as the employee’s age, education, \nwork experience, and other matters reasonably expected to affect his or her future \nearning capacity. \n \nSee Curry v. Franklin Elec., 32 Ark. App. 168, 798 S.W.2d 130 (1990).  Such “other matters” \ninclude motivation, post-injury income, credibility, demeanor, and a multitude of other factors.  \nId.; Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961).  As the Arkansas Court of Appeals noted \nin Hixon v. Baptist Health, 2010 Ark. App. 413, 375 S.W.3d 690, “there is no exact formula for \ndetermining wage loss . . . .”  Pursuant to § 11-9-522(b)(1), when a claimant has been assigned an \nimpairment rating to the body as a whole, the Commission possesses the authority to increase the \nrating, and it can find a claimant totally and permanently disabled based upon wage-loss factors.  \nCross v. Crawford County Memorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). \n To be entitled to any wage-loss disability in excess of an impairment rating, the claimant \nmust prove by a preponderance of the evidence that she sustained permanent physical impairment \nas a result of a compensable injury.  Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 727 \n(2000).  The wage loss factor is the extent to which a compensable injury has affected the \nclaimant’s ability to earn a livelihood.  Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 \n(2001).    In  considering  factors  that  may  impact  a  claimant’s  future  earning  capacity,  the \nCommission considers his motivation to return to work, because a lack of interest or a negative \n\nBRICKER H203103 \n \n18 \n \nattitude impedes the assessment of his loss of earning capacity.  Id.  The Commission may use its \nown superior knowledge of industrial demands, limitations, and requirements in conjunction with \nthe evidence to determine wage-loss disability.  Oller v. Champion Parts Rebuilders, 5 Ark. App. \n307, 635 S.W.2d 276 (1982).  Finally, as discussed above, § 11-9-102(4)(F)(ii) provides that \npermanent benefits can only be given to a claimant if the compensable injury was the major cause \nof the disability or impairment.  “Disability” is the “incapacity because of compensable injury to \nearn, in the same or any other employment, the wages which the employee was receiving at the \ntime of the compensable injury.”  Ark. Code Ann. § 11-9-102(8) (Repl. 2012). \n Dr. Gordon assessed Claimant with a three percent (3%) impairment rating to the body as \na whole. Resp. Ex. 2, p. 10. I credit Dr. Gordon’s impairment assessment. Again, the Claimant \nreached the end of her healing period on October 29, 2024. Since then, she has made no effort to \ngain any meaningful employment even when provided with assistance by Ms. Brunson. Resp. Ex. \n1, pp. 24-32. Ms. Brunson did an analysis of her work history and transferrable skills along with \njob market research and provided Claimant with several job openings. Id. Claimant did inform Ms. \nBrunson that she does not feel she can do any work at this time. Id. Claimant stated that she would \neventually like to return to law enforcement or nursing. Id. When asked if she could not return to \neither one of those jobs “were there other jobs or industries she would like to work in,” she stated, \n“No, then I don’t want to work.” Id. However, at the full hearing, the Claimant testified, during \ndirect examination, that she is willing to work any job. TR-48. I believe, as previously stated, \nClaimants statement during the hearing that she is willing to work any job was subterfuge. She has \nadmitted on the record that she can write, work on a computer, drive a car, do laundry, load a \ndishwasher, cook meals, and operate a lawn mower. TR-55-57. Despite these transferable skills, \nthe Claimant has refused to seek out meaningful employment due to an apparent lack of motivation \n\nBRICKER H203103 \n \n19 \n \nto work. Therefore, the Claimant has failed to prove by the preponderance of the evidence that she \nis entitled to wage loss benefits beyond what Dr. Gordon has accessed.     \nE. Whether Claimant’s attorney is entitled to a controverted attorney’s fee. \n \n One of the purposes of the attorney's fee statute is to put the economic burden of litigation \non the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 \n(1998).  Claimant has proven herein her entitlement to additional temporary total disability benefits \nfrom September 12, 2024, to October 29, 2024; and because Respondents have controverted this \nby not paying, she has shown that her attorney should be awarded a controverted fee at their \nexpense under Ark. Code Ann. § 11-9-715 (Repl. 2012) on the indemnity benefits awarded herein. \nCONCLUSION AND AWARD \n Respondents are directed to pay benefits in accordance with the findings of fact set forth \nabove.  All accrued sums shall be paid in a lump sum without discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809 (Repl. 2002).  See Couch \nv. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s attorney is entitled to a twenty-five percent (25%) attorney’s fee awarded \nherein, one-half of which is to be paid by Claimant and one-half to be paid by Respondents in \naccordance  with Ark.  Code Ann.  §  11-9-715  (Repl.  2012).   See Death  &  Permanent  Total \nDisability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2012). \n IT IS SO ORDERED. \n       ___________________________________  \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":38670,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203103 JENNIFER BRICKER, EMPLOYEE CLAIMANT DEPT. OF CORRECTION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 15, 2025 Hearing before Administrative Law Judge, Steven Porch, on October 24, 2025, in Jones...","outcome":"granted","outcomeKeywords":["granted:6","denied:1"],"injuryKeywords":["shoulder","rotator cuff","neck","wrist","back","cervical"],"fetchedAt":"2026-05-19T22:33:39.028Z"},{"id":"alj-H400417-2025-12-15","awccNumber":"H400417","decisionDate":"2025-12-15","decisionYear":2025,"opinionType":"alj","claimantName":"Kenneth Cypert","employerName":"Davis Iron & Metal, Inc","title":"CYPERT VS. DAVIS IRON & METAL, INC. AWCC# H400417 December 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CYPERT_KENNETH_H400417_20251215.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CYPERT_KENNETH_H400417_20251215.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H400417 \n \nKENNETH CYPERT (DEC’D), Employee CLAIMANT \n \nDAVIS IRON & METAL, INC., Employer RESPONDENT \n \nSUMMIT CONSULTING, LLC, Carrier RESPONDENT \n \n \n \n OPINION FILED DECEMBER 15, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by ZACHARY  F.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On November 17, 2025, the above captioned claim came on for a hearing at Fort \nSmith, Arkansas.   A pre-hearing conference was conducted on August 20, 2025, and a \npre-hearing  order  was  filed  on  that  same  date. A  copy  of  the  Pre-hearing  Order  has \nbeen  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.    The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  the \nwithin claim. \n2. Claimant sustained a compensable burn injury on January 9, 2024. \n\nCypert – H400417 \n \n-2- \nAt the time of the hearing the parties agreed to stipulate that claimant earned an \naverage weekly wage of $689.60. \nThe issues to be litigated at the forthcoming hearing are as follows: \n1. Whether Claimant’s death was the result of his compensable burn injury. \n2. Dependency benefits. \nMary Edith Cypert contends she is the mother of the deceased, Kenneth Cypert, \nwho  passed  away  as  a  result  of  his  compensable  on-the-job  fire  injury  on  January  9, \n2024. She contends that she is entitled to benefits as a dependent. \nThe respondents contend “while this is an accepted claim for the burn injuries, \nthe death of the claimant is not accepted. Additionally, the claimant’s mother is not a \ndependent of the claimant.” \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted  on August  20,  2025,  and  contained  in  a pre-hearing  order  filed  that  same \ndate are hereby accepted as fact. \n 2. The  parties’  stipulation  that  claimant  earned  an  average  weekly  wage  of \n$689.60 is also hereby accepted as fact.  \n 3. Claimant’s death was causally related to his compensable burn injury. \n\nCypert – H400417 \n \n-3- \n 4.  Respondent  is  liable  for  payment  of  funeral  expenses  in  the  amount  of \n$6,000.00. \n 5.  Mary  Cypert,  claimant’s  mother,  has  met  her  burden  of  proving  by  a \npreponderance  of  the  evidence  that  she  was  partially  dependent  upon  claimant’s \nearnings for support at the time of his death.  \n 6.  Mary  Cypert  is  entitled  to  dependent  benefits  in  the  amount  of  $34.48  per \nweek. \n 7. Respondent has controverted payment of dependency benefits. \n \nFACTUAL BACKGROUND \n Claimant  was  a  59-year-old  man  who  worked  for  respondent.  The  parties  have \nstipulated that claimant suffered a burn injury while working for respondent on January \n9, 2024. According to the history contained in the medical evidence, claimant’s coat \ncaught on fire from a propane heater. Claimant was taken to the Arkansas Children’s \nBurn  Center  where  he  was hospitalized,  and  he was  diagnosed  with  having  second- \nand  third-degree  burns  involving  more  than  20-29% of his body’s surface. Claimant’s \ntreatment  included surgery  for  burn  wound  excision  and  allograft  placement.  The \nmedical  records  indicate  that  while  hospitalized  claimant  was  placed  on  treatment  for \nalcohol withdrawal. \n On the morning of January 17, 2024, claimant was found to be unresponsive and \nunfortunately, he perished. At the time of his injury, claimant was living with his mother, \nMary Edith Cypert. Cypert has filed this claim contending that her son’s death was a \nresult of his compensable injury and requesting payment of dependent benefits.  \n\nCypert – H400417 \n \n-4- \n \nADJUDICATION \n The first issue for consideration is whether claimant’s death was a result of his \ncompensable  burn  injury.  I  find  based  upon  the  evidence  presented  that  claimant’s \ndeath resulted from his compensable burn injury on January 9, 2024.  \n In support of his contention that claimant’s death did not result from his burn \ninjury, respondent states that there is no proof that the death was caused by the injury \nand that he was suffering from alcohol withdrawal while in the hospital. While it is true \nthat  claimant  was  being  treated  for  alcohol  withdrawal  during  his  hospitalization,  the \nevidence  proves  that  his  death  was  a  result  of  the  burn  injury. Following claimant’s \ndeath, an autopsy was performed, and a Certificate of Death was completed by Jennifer \nA. Forsyth, Associate Medical Examiner for the State of Arkansas. In the section, Cause \nof Death, Forsyth indicated:  \nIMMEDIATE  CAUSE  a.  COMPLICATIONS  OF  THERMAL \nINJURY \n \n On the Certificate there is also a section labeled “PART II” which states: “Enter \nother significant conditions contributing to death [emphasis provided] but not resulting in \nthe underlying cause given in PART I”. In this portion, Forsyth stated: \nHEPATIC STEATOSIS AND FIBROSIS \n Thus, while Forsyth did indicate that there were other conditions that contributed \nto  claimant’s  death,  the  form  indicates  that  these  conditions  did  not  result  in  the \nunderlying  cause.  As  previously  noted,  Forsyth  indicated  that  the  immediate  cause  of \nclaimant’s death was from “COMPLICATIONS OF THERMAL INJURY”. \n\nCypert – H400417 \n \n-5- \n Based  on  the  findings  in  the  Certificate  of  Death  completed  by  the associate \nmedical examiner, which I find to be credible, I find that claimant’s death was causally \nrelated to his compensable burn injury of January 9, 2024.  \n Mary  Cypert  submitted  into  evidence  funeral  expenses  totaling  more  than \n$10,000.00. Pursuant to ACA §11-9-527(a), I find that respondent is liable for paying the \nmaximum of $6,000.00.  \n The  next  issue  for  consideration involves  Mary  Cypert’s  request  for  partial \ndependency benefits. The applicable statute is ACA §11-9-527(i)(1) which states: \nIf  the  employee  leaves  dependents  who  are  only  partially \ndependent upon his or her earnings for support at the time of \ninjury,  the  compensation  payable  for  partial  dependency \nshall  be  in  the  proportion  that  the  partial  dependency  bears \nto total dependency. \n \n Dependency is a fact question that must be determined in light of the surrounding \ncircumstances. Findlay  v.  Farm  Cat,  Inc., 103  Ark.  App.  292,  288  SW  3d  685  (2008); \nFordyce  Concrete  v.  Garth,  84  Ark.  App.  256,  139  SW  3d  154  (2003).  Factors  to  be \nconsidered in making a determination of partial dependency for workers’ compensation \npurposes  includes  whether  support  was  given  at  the  time  of  the  injury  and  the \nreasonable  expectation  of  future  support. Williams  v.  Cypress  Creek  Drainage, 5  Ark. \nApp.  256,  635  SW  2d  282  (1982).  The  fact  that  the  claimant  is  not  the  sole  source  of \nsupport  is  not  dispositive,  because  partial  dependency  benefits  are  calculated  in \nproportion that the partial dependency bears to the total dependency. ACA §11-9-527(i): \nPinecrest Memorial Park v. Miller, 7 Ark. App. 185, 646 SW 2d 33 (1983). \n As previously noted, Mary Cypert is the claimant’s mother, and claimant was \nliving with her at the time of his death. Cypert testified that when claimant received his \n\nCypert – H400417 \n \n-6- \nweekly  check,  he  would  cash  it  and  give  her  $300.00.  She  testified  that  this  would \nhappen  every  week  unless  the  claimant  had  an  unusual  expense.  In  response, \nrespondent  notes  that  there  are  no  written  or  financial  records  supporting  Cypert’s \ntestimony  regarding  the  money  given  to  her  by  her  son.  However,  I  find  Cypert’s \ntestimony regarding the financial support given to her by her son to be credible.  \n Cypert  testified  that  during  the  calendar  2023  she  earned  $5,000.00  sitting  with \nindividuals  who  are  incapacitated  or  unable  to  take  care  of  themselves.  She  also \ntestified  that  she  received  $1,588.00  per  month  in  Social  Security  retirement  benefits. \nThis resulted in an annual income of $24,056.00 for 2023. While Cypert testified that her \nson  gave  her  $300.00  per  week,  she  also  acknowledged  that  there  were  some  weeks \nthat she did not receive cash due to her son’s expenses. I also note that in answers to \ninterrogatories, Cypert indicated that the weekly payments were $200.00 to $250.00 per \nweek. \n Finally,  if  a  parent  is  claiming  dependency  benefits,  it  is  also  appropriate  to \nconsider  the  amount  of  any  contribution  the  parent  made  in  support  of  the  claimant. \nWilliams,  supra.  Here,  Cypert  was  providing  her  son  a  monetary  benefit  by  providing \nhim a place to live.  \n After  taking  all  of  this  evidence  into  account,  I  find  that  Cypert  was  partially \ndependent  upon  claimant  in  the  amount  of  20%  pursuant  to  ACA  §11-9-527(i)(1). \nConsequently,  in  accordance  with  ACA  §11-9-527(c)(4),  she  is  entitled  to  a  weekly \nbenefit amounting to 5% of claimant’s average weekly wage, or $34.48. [$689.60 AWW \nX  25%  equals  $172.40,  maximum  wholly  dependent  rate.  Partial  dependent  finding  of \n20% X $172.40 equals $34.48.] \n\nCypert – H400417 \n \n-7- \nAWARD \n Claimant’s  death  was  causally  related  to  his  compensable  burn  injury. \nRespondent is liable for payment of funeral expenses in the amount of $6,000.00. Mary \nCypert, claimant’s mother, was partially dependent upon claimant’s earnings for support \nat the time of his death. Mary Cypert is entitled to dependent benefits in the amount of \n$34.48  per  week.  Respondent  has  controverted  Cypert’s  entitlement  to  payment  of \nthose dependency benefits. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B),  claimant’s  attorney  is  entitled  to  an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.   Also pursuant to A.C.A. §11-9-715(a)(1)(B), an attorney fee is not \nawarded on medical benefits. \nAll  sums herein  accrued are payable  in a  lump  sum and  without  discount.   This \naward shall bear interest at the maximum legal rate until paid. \n Respondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $416.00. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":11356,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H400417 KENNETH CYPERT (DEC’D), Employee CLAIMANT DAVIS IRON & METAL, INC., Employer RESPONDENT SUMMIT CONSULTING, LLC, Carrier RESPONDENT OPINION FILED DECEMBER 15, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Coun...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:41.154Z"},{"id":"alj-H301282-2025-12-15","awccNumber":"H301282","decisionDate":"2025-12-15","decisionYear":2025,"opinionType":"alj","claimantName":"Duane Thomas","employerName":"Saracen Casino Resort","title":"THOMAS VS. SARACEN CASINO RESORT AWCC# H301282 December 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/THOMAS_DUANE_H301282_20251215.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOMAS_DUANE_H301282_20251215.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H301282 \n \nDUANE R. THOMAS, EMPLOYEE        CLAIMANT \n \nSARACEN CASINO RESORT, EMPLOYER                     RESPONDENT \n \nLUBA CASUALTY INSURANCE CO./  \nLUBA WORKERS’ COMPENSATION, CARRIER                  RESPONDENT \n  \n \n \nOPINION FILED 15 DECEMBER 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 6 November 2025 in Pine Bluff, Arkansas. \n \nThe claimant appeared pro se. \n \nWorley, Wood & Parrish, P.A., Mr. Jarrod Parrish, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 6 November 2025. This case relates to an alleged workplace injury  \nRespondents’ Exhibit No 1, which consisted of one index page and eight pages of documents; \nand Commission’s Exhibit No 1, which consisted of two pages of Postal Service delivery \nreceipts from Commission correspondence with the claimant. Also, I have blue-backed to \nthis opinion two requests from the claimant (one file-marked on 25 February 2025; the \nother file-marked on 5 March 2025) indicating his wish to proceed in litigating his case. In \naccordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, \nthese documents are being served on the parties in conjunction with this opinion. \nOn 25 February 2025, the claimant filed a letter asking to “start a claim.” Then, on 5 \nMarch 2025, he specifically requested a hearing. After conducting a telephone conference, a \nPrehearing Order was entered on 24 June 2025. The respondents later requested that this \n\nD. THOMAS- H301282 \n2 \n \nclaim be dismissed under 11 C.A.R. § 25-110(d) for the claimant’s failure to cooperate in \ndiscovery.  \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of the hearing on the \nrespondents was sent in the same manner. The claimant appeared at the hearing to argue \nagainst the dismissal of his claim. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence does not preponderate in favor of finding at this time that the \nclaimant has failed to prosecute his claim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby denied without prejudice. \n \nDISCUSSION \nBoth parties appeared at the hearing. As cited by the respondents in their motion, \n11 C.A.R. § 25-110(d) provides for a dismissal for failure to prosecute an action upon \napplication by either party and reasonable notice.  \nThe claimant did not dispute that he had failed to cooperate in the scheduling of his \ndeposition in this claim. He offered several excuses for his noncooperation. I reminded him \nof my admonition during the prehearing conference that he was expected to participate in \nthe discovery process, which included making himself available at a convenient time for the \nscheduling of his deposition. The claimant stated that he understood that any further \nfailures to comply with discovery or other directives from the Commission could result in \nthe dismissal of his case. \n\nD. THOMAS- H301282 \n3 \n \nSince the hearing, the claimant has coordinated with the respondents in scheduling \nhis deposition. Another prehearing conference will be set after the deposition is completed \nso that this matter may be set for a hearing.  \nORDER \n The Motion to Dismiss is denied without prejudice. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3927,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H301282 DUANE R. THOMAS, EMPLOYEE CLAIMANT SARACEN CASINO RESORT, EMPLOYER RESPONDENT LUBA CASUALTY INSURANCE CO./ LUBA WORKERS’ COMPENSATION, CARRIER RESPONDENT OPINION FILED 15 DECEMBER 2025 Heard before Arkansas Workers’ Compensation Commission (“the ...","outcome":"dismissed","outcomeKeywords":["dismissed:4","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:43.232Z"},{"id":"full_commission-H206340-2025-12-12","awccNumber":"H206340","decisionDate":"2025-12-12","decisionYear":2025,"opinionType":"full_commission","claimantName":"Librado Martinez","employerName":"Russellville School District","title":"MARTINEZ VS. RUSSELLVILLE SCHOOL DISTRICT AWCC# H206340 December 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Martinez_Librado_H206340_20251212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Martinez_Librado_H206340_20251212.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \nCLAIM NO. H206340 \n \n \nLIBRADO MARTINEZ, EMPLOYEE  CLAIMANT \n \n \nRUSSELLVILLE SCHOOL DISTRICT,  \nEMPLOYER                                                                           RESPONDENT \n \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nCARRIER                                                                               RESPONDENT \n \n \nOPINION FILED DECEMBER 12, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MICHAEL L. ELLIG, Attorney at \nLaw, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed July 14, 2025. In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-\nhearing conference conducted on November 13, 2024, \nand contained in a pre-hearing order filed that same \ndate are hereby accepted as fact.  \n\n \nMartinez-H206340    2  \n \n \n \n \n2. The parties’ stipulation that claimant earned an \naverage weekly of $543.12 which would entitle him to \ncompensation at the rates of $362.00 for temporary \ntotal disability benefits and $272.00 for permanent \npartial disability benefits is also hereby accepted as \nfact.  \n \n3. Claimant has failed to prove by a preponderance of the \nevidence that he is entitled to payment of medical \ntreatment provided by Dr. Rafi and Dr. Gandhi. The \nmedical treatment provided by those physicians was \nunauthorized; therefore, respondent is not liable for \npayment.  \n \n4. Claimant has failed to prove by a preponderance of the \nevidence that he is entitled to additional temporary total \ndisability benefits for his compensable low back injury. \n \n We have carefully conducted a de novo review of the entire record \nherein, and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the July 14, 2025 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n  \n\n \nMartinez-H206340    3  \n \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2937,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H206340 LIBRADO MARTINEZ, EMPLOYEE CLAIMANT RUSSELLVILLE SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER RESPONDENT OPINION FILED DECEMBER 12, 2025 Upon review before the FULL COMMISSION in Lit...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:2","denied:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:43.940Z"},{"id":"alj-H403832-2025-12-12","awccNumber":"H403832","decisionDate":"2025-12-12","decisionYear":2025,"opinionType":"alj","claimantName":"Shamekia Rhodes","employerName":"Express Services Inc","title":"RHODES VS. EXPRESS SERVICES INC. AWCC# H403832 December 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RHODES_SHAMEKIA_H403832_20251212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RHODES_SHAMEKIA_H403832_20251212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H403832 \n \nSHAMEKIA RHODES, EMPLOYEE   CLAIMANT \n \nEXPRESS SERVICES INC., EMPLOYER RESPONDENT \n \nAIU INSURANCE SEDGWICK CLAIMS MANAGEMENT SERVICES INC. \n/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED DECEMBER 12, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is represented by MICHAEL ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents are represented by JARROD S. PARRISH, Attorney, Little Rock Arkansas \n \nOPINION/ORDER \n \n On September 19, 2024, claimant filed Form AR-C, alleging a compensable injury on June 3, \n2024.   Claimant   was represented at the time by Michael L. Ellig, who remains her attorney of record.     \nOn October 16, 2025, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed her Form AR-C with the Commission, but she had not made a \nrequest for a hearing in that time.   A hearing on respondent’s Motion to Dismiss was scheduled for \nDecember 8, 2025.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was delivered to claimant on October  29. \n2025.    Claimant did not respond to respondents’ motion and did not appear in person at the hearing \non December 8, 2025.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \n\nRhodes-H403832 \n \n2 \n \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby  is  granted.    This  dismissal  is  pursuant  to  Commission 11  C.A.R. § 25-110(d) (formerly \nCommission Rule 099.13) and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2175,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H403832 SHAMEKIA RHODES, EMPLOYEE CLAIMANT EXPRESS SERVICES INC., EMPLOYER RESPONDENT AIU INSURANCE SEDGWICK CLAIMS MANAGEMENT SERVICES INC. /INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED DECEMBER 12, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:36.927Z"},{"id":"alj-H402779-2025-12-10","awccNumber":"H402779","decisionDate":"2025-12-10","decisionYear":2025,"opinionType":"alj","claimantName":"Samuel Gamble","employerName":"Domtar Corporation","title":"GAMBLE VS. DOMTAR CORPORATION AWCC# H402779 December 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GAMBLE_SAMUEL_H402779_20251210.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GAMBLE_SAMUEL_H402779_20251210.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H402779 \n \n \nSAMUEL GAMBLE, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nDOMTAR CORPORATION,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nTRAVELERS CASUALTY INS. CO. OF AMERICA, \nCARRIER/TPA                                                                                                       RESPONDENT                                                                      \n          \n                                                                                              \nOPINION FILED DECEMBER 10, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the Honorable Aaron L. Martin, Attorney at Law, Fayetteville, Arkansas. \nMr. Martin waived his appearance at the hearing.        \n \nRespondents represented  by the Honorable Guy  Alton  Wade, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A dismissal hearing  was  held  on December 10, 2025,  in  the above-referenced  matter \npursuant to Dillard v. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), \nto determine whether this case should be dismissed for failure to prosecute under the provisions of \nArk. Code Ann. §11-9-702 (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule \n099.13 (now codified at 11 C.A.R. § 25-110(d)). \nAppropriate notice of this hearing was tried on all parties to their last known address, in \nthe manner instructed by law.   \nNo testimony was taken. \nThe record consists of the transcript from the December 10, 2025, dismissal hearing and \nthe documents held therein.  Commission’s Exhibit 1 consisting of two pages has been marked, \n\nGamble – H402779 \n \n2 \n \naccordingly; and  the Respondents  introduced  into  evidence  an  exhibit  consisting  of eight \nnumbered pages, which was thus marked Respondents’ Exhibit 1.  Both exhibits were introduced \ninto evidence without objection.  \n                                                               Background \n The procedural history of this claim is as follows: \n The Claimant’s attorney filed  a  Form  AR-C  with  the  Commission on  June 24,  2024, \nalleging that the Claimant sustained an accidental injury on April 17, 2024, while working for the \nrespondent-employer.  According to this document, the Claimant sustained multiple bodily injuries \nwhen  he  was  hit  by  a  train.  Per  the  Form  AR-C,  the Claimant  requested  initial  workers’ \ncompensation benefits in the form of temporary total disability compensation, temporary partial \ndisability, permanent total disability benefits, an attorney’s fee, and medical expenses.      \n  On April 26,  2024,  the Respondents’ claim  professional filed  a  Form  AR-2,  with  the \nCommission denying compensability of the claim.  Per this form, the Respondents controverted \nthe claim on the grounds that the Claimant was not in the course and scope of his employment at \nthe time of his accidental injury of April 17, 2024.   \n The Claimant has not requested a hearing since the filing of his Form AR-C on June 24, \n2024.  This filing clearly occurred more than six (6) months ago. \n Subsequently,  there  was  no  action  taken  on  the  part  of  the  Claimant  to  prosecute  or \notherwise pursue his workers’ compensation claim.  Hence, the Claimant has not made a bona fide \nrequest for a hearing since the filing of the Form AR-C in July 2024.     \nTherefore, on or  about November  6,  2025, the Respondents  filed a  letter with  the \nCommission stating: “Please accept this letter as the Respondents request for dismissal due to the \nlack of prosecution of this claim.  Claimant has not requested a hearing or pursued this matter since \n\nGamble – H402779 \n \n3 \n \ndiscovery responses were provided.  By copy of this correspondence, I am notifying the Claimant \nof our motion.”  \nSubsequently, on November 10, 2025, my office sent a letter-notice to the Claimant and \nhis attorney informing them of the Respondents’ motion to dismiss, and a deadline of twenty (20) \ndays for filing a written response.  The notice was sent to the Claimant’s attorney via e-mail.  This \nletter was also sent to the Claimant by both first-class and certified mail.  The information retrieved \nfrom the Postal Service shows that the letter sent to the Claimant via certified mail was delivered \nto his home.  The return receipt request shows that the Claimant signed for delivery of the notice.  \nMoreover, the letter-notice sent by way of first-class mail has not been returned to the Commission.   \nPer a Notice of Hearing generated on December 2, 2025, my office notified the parties that \na hearing had been rescheduled on the Respondents’ motion to dismiss.  Said dismissal hearing \nwas  set for December  10,  2025, in Little  Rock, Arkansas.    The  Claimant  and  his  attorney  were \nmade aware of the hearing via email and via the U.S. Postal Service.   \nOn  December  2,  2025,  the  Claimant’s  attorney drafted the  following  email  to  the \nCommission: “Claimant has no objection to a dismissal without prejudice.”      \nBased  on  the foregoing, the  evidence clearly preponderates  that  the  Claimant received \nappropriate notice of the dismissal hearing.     \nA hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant’s \nattorney waived his appearance at the hearing.  However, the Respondents appeared through their \nattorney.   \nAt  the  hearing,  the Respondents’ counsel argued,  among  other things, that  the Claimant \nhas failed to timely prosecute his claim for workers’ compensation benefits.  Counsel further noted \nthat  the  Claimant’s attorney has indicated that  he  does  not  object  to  the  case  being  dismissed \n\nGamble – H402779 \n \n4 \n \nwithout  prejudice.   As  such, The Respondents’ counsel moved that  this  claim  be  dismissed for \nfailure to prosecute under Ark. Code Ann. §11-9-702 (Repl. 2012), and Commission Rule 099.13 \n(now codified at 11 C.A.R. § 25-110 (d)), without prejudice. \n             Adjudication  \nTherefore, the statutory provision and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \nAlso, Ark. Code Ann. §11-9-702(d) provides:  \nCommission Rule 099.13 (now codified at 11 C.A.R. § 25-110 (d), reads as follows: \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \nrequested a hearing since the filing of the Form AR-C in June 2024 which was done more than six \n(6) months ago.  Moreover, there has been no bona fide action taken by the Claimant to pursue or \n\nGamble – H402779 \n \n5 \n \notherwise resolve his claim since the filing of it.  Most significantly, the Claimant does not object \nto his claim being dismissed without prejudice. \n Accordingly, the  evidence  preponderates  that  the  Claimant  has clearly failed  to timely \nprosecute his claim for workers’ compensation benefits.   Additionally,  the  Claimant  does  not \nobject to a dismissal without prejudice.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.   \nI thus find that pursuant to Ark. Code Ann.§11-9-702 (Repl. 2012), and Commission Rule \n099.13 (now codified at 11 C.A.R. § 25-110 (d)), this claim for  workers’ compensation benefits \nis hereby respectfully dismissed without prejudice to the refiling of it within the limitation period \nspecified under the Arkansas Workers’ Compensation Act (referred to herein as the “Act”). \n                           FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. The Claimant filed a claim for workers’ compensation benefits in  June \n2024.  Since this time, the Claimant has not requested a hearing.  \n \n3. The Respondents filed with the Commission a motion for dismissal of this \nclaim,  for  which  a  hearing  was  held.  The Claimant  does  not  object  to  a \ndismissal without prejudice. \n \n4. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The evidence  preponderates  that  the Respondents’ motion to dismiss this \nclaim  for a lack  of  prosecution is  well  founded,  and  should be  hereby \ngranted, without   prejudice, per Ark.   Code   Ann. §11-9-702,   and \nCommission Rule  099.13(now  codified  at  11  C.A.R. § 25-110  (d)) to  the \nrefiling of it within the limitation period specified by law.  \n\nGamble – H402779 \n \n6 \n \n                                                      ORDER \n \nBased  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’ compensation benefits.  This dismissal is made pursuant to the provisions of Ark. Code  \nAnn. §11- 9-702, and Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110 (d)), without \nprejudice to the refiling of it within the limitation period specified under the Act. \nIT IS SO ORDERED. \n                                                                                              \n          \n                                                                                     _____________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":11427,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H402779 SAMUEL GAMBLE, EMPLOYEE CLAIMANT DOMTAR CORPORATION, EMPLOYER RESPONDENT TRAVELERS CASUALTY INS. CO. OF AMERICA, CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 10, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in Little Rock, P...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:34.858Z"},{"id":"alj-H304888-2025-12-09","awccNumber":"H304888","decisionDate":"2025-12-09","decisionYear":2025,"opinionType":"alj","claimantName":"Roger Clark","employerName":"Overhead Door Co, Inc","title":"CLARK VS. OVERHEAD DOOR CO, INC. AWCC# H304888 December 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CLARK_ROGER_H304888_20251209.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CLARK_ROGER_H304888_20251209.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H304888 \n \nROGER CLARK, Employee CLAIMANT \n \nOVERHEAD DOOR CO, INC., Employer RESPONDENT \n \nAMTRUST NORTH AMERICA, Carrier RESPONDENT \n \n \n \n OPINION FILED DEEMBER 9, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas; although not \npresent at hearing. \n \nRespondents represented by WILLIAM C. FRYE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On May  16,  2024, Evelyn Brooks, the claimant’s attorney, filed  an  AR-C  requesting \nvarious compensation benefits in which the claimant alleges an injury to his right shoulder on or \nabout April 6, 2023. Also, on May 16, 2024, the claimant requested a change of physician, and \nthat  request  was  granted  by  a  Change  of  Physician  Order  dated  May  20,  2024.  Since  then, no \nfurther action was taken in this claim. \nOn August 25, 2025, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of  prosecution. A hearing  was scheduled  for October 28, 2025. Notice of \nthat hearing was sent to the claimant by certified mail, return receipt requested on September 3, \n2025. United States Postal Department records indicate that claimant received and signed for the \nnotice  on  September  6,  2025. Due  to  a  scheduling  error,  neither  Ms.  Brooks  nor  the  claimant \n\nClark – H304888 \n \n-2- \nappeared at the scheduled hearing. However, Ms. Brooks submitted an email response indicating \nthat the claimant objects to the dismissal of his claim because he is concerned about his need for \nadditional medical treatment and other benefits in the future. Ms. Brooks also indicated that there \nis currently no issue regarding benefits for the claimant. The claimant is not currently treating for \nhis compensable injury. As no issue exists at this time nor is there any ongoing treatment for the \nclaimant’s compensable injury, I find it proper to dismiss this matter without prejudice. \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After a review of the \nrespondents’ Motion to Dismiss, the claimant’s lack of desire to pursue her claim, and her failure \nto appear at the scheduled hearing, as well as all other matters properly before the Commission, I \nfind  that  claimant  has  failed  to  prosecute  this  claim.  Therefore,  this  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2915,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H304888 ROGER CLARK, Employee CLAIMANT OVERHEAD DOOR CO, INC., Employer RESPONDENT AMTRUST NORTH AMERICA, Carrier RESPONDENT OPINION FILED DEEMBER 9, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claim...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:33:28.608Z"},{"id":"alj-H503466-2025-12-09","awccNumber":"H503466","decisionDate":"2025-12-09","decisionYear":2025,"opinionType":"alj","claimantName":"Cheryl Taylor","employerName":"Easter Seals Of Arkansas","title":"TAYLOR VS. EASTER SEALS OF ARKANSAS AWCC# H503466 December 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TAYLOR_CHERYL_H503466_20251209.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TAYLOR_CHERYL_H503466_20251209.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H503466 \n \nCHERYL TAYLOR, EMPLOYEE       CLAIMANT \n  \nEASTER SEALS OF ARKANSAS, \nEMPLOYER              RESPONDENT \n \nATA WORKERS’ COMP SI TRUST/ \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA          RESPONDENT \n \n \nOPINION AND ORDER FILED DECEMBER 9, 2025 \n \nA Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, was held on November 25, 2025. \nClaimant was pro se and failed to appear. \nRespondents were represented by Carol Lockard Worley of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 25\nth\n day of November, 2025, \nin Little Rock, Arkansas, on Respondent’s Motion to Dismiss pursuant to 11 C.A.R. 25-\n110(d) of the Rules of the Arkansas Workers’ Compensation. This Rule was previously \nnamed Rule 099.13 of the Arkansas Workers’ Compensation Commission. The claimant \nwas pro se and failed to appear. The Respondents were represented by Carol Worley of \nLittle Rock, Arkansas.    \n A Motion to Dismiss was filed on or about September 9, 2025, which provided that \nthe Claimant contended she sustained a work-related injury on April 14, 2025, and that \ncompensability was denied by the Respondents. The Claimant filed an AR-C, on June 5, \n2025,  and  requested  a  hearing. Claimant  initially  refused  to  cooperate  with  discovery, \nwalking  out  of  her  scheduled deposition  on August 22,  2025. A prehearing  conference \n\nTAYLOR – H503466 \n2 \n \nwas scheduled on October 13, 2025. Prior to the prehearing telephone conference, the \nClaimant,  on  September  26,  2025, contacted  the  Commission  requesting  that the \nprehearing conference be cancelled and withdrawing her hearing request.    \nThe Motion  to  Dismiss refers  to Rule 11 C.A.R.  25-110(d) of the Arkansas Workers’ \nCompensation  Commission, which  provides  that  upon  application  by  either  party  for  a \ndismissal for failure  to prosecute,  the  Commission  may, after  reasonable  notice  to  all \nparties, enter  an order  dismissing  the  claim. No  response  was  filed  by  the  Claimant  in \nregard to the motion.     \n After proper notice, a hearing was held on November 25, 2025, and the Claimant \nfailed  to  appear.  The Respondents  were  represented  by Carol  Worley,  who  requested \nthat the matter be dismissed pursuant to 11 C.A.R. 25-110(d) of the Arkansas Workers’ \nCompensation Commission. Various documents were introduced into the record. \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion to Dismiss without prejudice pursuant to 11 C.A.R. 25-110(d) of the Arkansas \nWorkers’ Compensation Commission, which  provides  that  upon  application  by  either \nparty for a dismissal for failure to prosecute, the Commission may, after reasonable notice \nto all parties, enter an order dismissing the claim. \n IT IS SO ORDERED. \n \n \n      ____________________________ \n                JAMES D. KENNEDY \n                ADMINISTRATIVE LAW JUDGE","textLength":3144,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H503466 CHERYL TAYLOR, EMPLOYEE CLAIMANT EASTER SEALS OF ARKANSAS, EMPLOYER RESPONDENT ATA WORKERS’ COMP SI TRUST/ RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED DECEMBER 9, 2025 A Hearing before Administrative Law Judge...","outcome":"dismissed","outcomeKeywords":["dismissed:7","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:30.684Z"},{"id":"alj-H404860-2025-12-09","awccNumber":"H404860","decisionDate":"2025-12-09","decisionYear":2025,"opinionType":"alj","claimantName":"Dannie Townley","employerName":"Hiland Dairy Co., LLC","title":"TOWNLEY VS. HILAND DAIRY CO., LLC AWCC# H404860 December 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TOWNLEY_DANNIE_H404860_20251209.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TOWNLEY_DANNIE_H404860_20251209.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404860 \n \nDANNIE TOWNLEY, Employee CLAIMANT \n \nHILAND DAIRY CO., LLC, Employer RESPONDENT \n \nCCMSI, Carrier RESPONDENT \n \n \n OPINION FILED DECEMBER 9, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by ERIC NEWKIRK, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On September 18, 2025, the above captioned claim came on for a hearing at Fort Smith, \nArkansas.   A pre-hearing conference was conducted on July 14, 2025, and a Pre-hearing Order \nwas  filed  on July  15,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on July 19, \n2024. \n 3. The claimant sustained a compensable injury to his left knee, left ankle, and left foot \non or about July 19, 2024. \n\nTownley – H404860 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $848.00 for temporary total disability benefits and $636.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  is  entitled  to  additional  temporary  total  disability  benefits  from \nMarch  25,  2025,  to  September  28,  2025,  or  in  the  alternative,  whether  claimant  is  entitled  to \nA.C.A. §11-9-505(a) benefits. \n 2. Whether Claimant’s attorney is entitled to an attorney’s fee. \n The claimant's contentions are as follows: \n“a.   The   claimant   contends   that   he   is   entitled   to   additional \ntemporary total disability benefits on or about March 8, 2025 until \na date yet to be determined. \n \nb.  The  claimant  contends  that  if  it  is  determined  that  he  has \nreached  MMI,  he  is  entitled  to  benefits  pursuant  to  ACA  §11-9-\n505(a). \n \nc.   The   claimant   contends   that   his   attorney   is   entitled   to   an \nappropriate attorney’s fee on any indemnity benefits to which the \nclaimant is entitled, that he has not already received.” \n \n The respondents’ contentions are as follows: \n“1. The Respondents contend that the Claimant sustained primarily \na  left  knee  injury  for  which  he  underwent  surgery  by  Dr.  Justin \nClayton  on  September  6,  2024,  which  has  resulted  in  Dr.  Clayton \ntwice releasing the Claimant to Full Duty and assessing maximum \nmedical  improvement  with  a  2%  point  anatomical  impairment \nrating  that  has  been  accepted  and  paid  by  Respondent.  However, \nthe  Claiamnt’s  DOT  Examiner  placed  work  restrictions  on  the \nClaimant following each time Dr. Clayton released the Claimant to \nFull  Duty.  The  Claimant  works  as  a  Transport  Driver  for  the \nRespondent  Employer,  and  that  job  requires  a  Full  Duty  Release \nfrom  the  DOT  Examiner  for  the  Claimant  to  be  able  to  return  to \nwork for the Respondent Employer. \n \n\nTownley – H404860 \n \n-3- \n2. In light of the above, the Respondents contend that the Claimant \nis  in  no  way  entitled  to  additional  temporary  total  disability \nbenefits   because   his   condition   has   plateaued,   and   he   is   at \nmaximum  medical  improvement  with  the  2%  impairment  rating \nalready  assessed  and  paid.  To  the  extent  the  Claimant  has  any \nfurther medical treatment such as additional surgery which requires \nthe  Claimant  to  re-enter  the  healing  period,  Respondents  will \nreinstate all appropriately owed temporary total disability benefits. \nThus, no additional temporary total disability benefits are owed at \nthis time since the Claimant’s conditions are plateaued and MMI \nhas been achieved per Dr. Clayton. \n \n3. With regard to Claimant’s allegations of benefits pursuant to \nArkansas Code Annotated §11-9-505(a), the Respondent Employer \nhas in no way “unreasonably refused” to allow the Claimant to \nreturn  to  work.  The  job  requirements  for  a  Transport  Driver  are \nexplicitly  stated  and  have  not  changed  in  any  way,  and  those  job \nduties  require  a  Full  Duty  release  from  a  DOT  Examiner  in  order \nfor  the  Claimant  to  perform  his  job  duties.  The  Claimant  remains \nemployed,  and  efforts  continue  to  be  made  to  determine  what  is \nnecessary  for  the  Claimant  to  obtain  a  Full  Duty  release  from  the \nDOT Examiner so that he can return to his job with the Respondent \nEmployer  as  a  Transport  Driver.  Accordingly,  no  benefits  are \nowed pursue to Arkansas Code Annotated §11-9-505(a). \n \n4. Respondents concede that the Claimant is entitled to reasonably \nnecessary medical treatment, and such medical treatment has in no \nway been refused or denied by Respondents. \n \n5.  Respondents  concede  that  the  Claimant’s  attorney  would  be \nentitled  to  an  appropriate  attorney’s  fee  with  regard  to  any \nindemnity  benefits  awarded  to  the  Claimant  beyond  those  which \nhave   been   accepted   and   paid   by   the   Respondents.   However, \nRespondents affirmatively state that no attorney’s fee would be \nowned  in  connection  with  subsequent  temporary  total  disability \nbenefits  which  might  later  come  into  play  should  the  Claimant \nundergo  further  surgery  which  would  result  in  the  Claimant  re-\nentering his healing period. \n \n6.  By  way  of  alternative  contention,  the  Respondents  plead  an \noffset   for   any   group   medical   insurance   or   group   short-term \ndisability   benefits   paid   to   the   Claimant   or   on   his   behalf. \nRespondents  also  assert  an  offset  for  an  unemployment  benefits \npaid to the Claimant, to the extent allowed under Arkansas law.” \n \n\nTownley – H404860 \n \n-4- \n The claimant in this matter is a 41-year-old male who sustained compensable injuries to \nhis left knee, left ankle and left foot on or about  July 19, 2024. The claimant was employed by \nthe respondent as a truck driver delivering dairy products. The claimant gave direct examination \ntestimony regarding his July 19, 2024, incident as follows: \nA The time of the injury? \n \nQ Yes. \n \nA How I got hurt? Well, I was at my last stop – no, I take that \nback. I was at my last stop for that trailer. Go to Walmart, Walmart \non Rogers Avenue, the Neighborhood Market. And I did my usual, \nback the trailer in, went in, start unloading the trailer, and I got one \nor two pallets off. As we are going through there, the pallets have \nto be stacked on walls and stuff. \n \n Then, I went to pick up another one, a full load of milk, and \nas I was backing up, I tripped and fell with the pallet, fell down on \nthe ground. \n \nQ And what part of your body did you injure? \n \nA Well, the pallet jack ran over my foot and it went up my leg \nand then the pallet jack set up on top of my kneecap. \n \nQ Did you end up seeing Dr. Clayton, an orthopedic surgeon, \nwith  the  Mercy  Orthopedic  Department  in  connection  with  our \nknee? \n \nA Yes. \n \n On September 9, 2024, the claimant underwent surgical intervention for his compensable \nleft knee injury at the hands of Dr. Justin Clayton. Following is a portion of that operative report: \nPREOPERATIVE DIAGNOSIS: Left knee medial meniscus tear. \n \nPOSTOPERATIVE DIAGNOSIS: Left knee medial meniscus tear \nplus osteochondral defect of the medial femoral condyle. \n \n\nTownley – H404860 \n \n-5- \nPROCEDURES PERFORMED: Left knee arthroscopy with partial \nmedial  meniscectomy  and  left  knee  arthroscopic  microfracture  of \nan osteochondral lesion. \n \n After  surgery,  the  claimant  underwent  several  weeks  of  physical  therapy  and  on \nDecember  3,  2024,  Dr.  Clayton  authored  the  following  letter  “To  Whom  It  My  Concern” \nregarding the claimant as follows: \nDannie  Townley  was  seen  in  my  clinic  on  12/3/2024.  Please \nexcuse Dannie for his absence from work on this day to make the \nappointment. \nHe  can  return  to  work  with  no  restrictions  but  should  complete \nphysical  therapy  for  work  hardening  or  job  specific  PT.  Return  to \nclinic in 6 weeks. \n \n On December 9, 2024, the claimant underwent a DOT medical examination at the hands \nof  Jacee  Banning,  APRN-CNP  who  determined  the  claimant  did  not  meet  DOT  standards  to \ndrive  giving  the  following  specific  reason,  “weakness  and  limited  ROM  of  the  left  lower \nextremity.” \n The claimant continued  physical therapy in  December of 2024  and January of 2025 and \nwas seen by Dr. Clayton on February 25, 2025. Following is a short progress note from that visit:  \nChief complaint: Left knee pain. \n \nHistory:  This  patient  is  currently  in  physical  therapy  after  he  had \nsurgery  for  a  work-related  injury  on  his  left  knee.  He  reports  that \nthe  only  thing  that  he  is  really  having  difficulty  with  his  deep \nbending and squatting they have been working on the some. \n \nExam:  Patient  ambulates  unassisted  in  regular  shoewear  he  is \napprehensive about deep bending of his knee. \n \nMedical  decision  making:  Postsurgical  visit  are  not  sure  there  is \nmuch  else  I  can  do  for  him  at  this  point  however  I  do  think  it \nreasonable   for   him   to   conclude   his   physical   therapy.   His \ncertification ends in 2 weeks so I will see him in 2 weeks once he \nhas concluded therapy. At that point we will need to either release \nhim without restrictions or consider an FCE. \n\nTownley – H404860 \n \n-6- \n \n On  March  18,  2025,  the  claimant  again  saw  Dr.  Clayton.  Following  is  a  progress  note \nfrom that visit: \nChief complaint: left knee pain. \n \nHistory:  Patient  is  status  post  meniscectomy  on  the  left  knee.  He \nreports that physical therapy has helped a lot. He reports that both \nhe and the physical therapist think he could benefit from a little bit \nmore therapy because he is just about to where he needs to be. \n \nExam: Patient’s knee exam is largely unremarkable it is stable to \nstressing   he   ambulates   in   regular   shoewear   without   assistive \ndevices. \n \nMedical  decision  making:  Left  knee  status  post  arthroscopy  we \nwill  return  him  to  work  with  no  restrictions.  Extend  physical \ntherapy for 2 weeks at which point he should be MMI. We would \nlike  an  impairment  rating  in  2  weeks  at  the  conclusion  of  his \nphysical  therapy  and  then  he  can  come  back  to  clinic  so  that  we \ncan sign off on that. \n \n The   claimant   continued   physical   therapy   and   underwent   another   DOT   medical \nexamination on March 21, 2025. This examination was performed by Dominique Carver, APRN. \nThe  claimant,  again,  failed  to  meet  the  standards.  The  examiner  specifically  stated,  “HTN; \nweakness  and  pain  in  the  left; lower leg.” The records in both the claimant’s and respondents’ \nexhibits  are  somewhat  confused,  but  it  appears  that  the  claimant  was  examined  by  a  DOT \nmedical  examiner  on  December  9,  2024;  March  21,  2025;  April  8,  2025;  April  14,  2025;  and \nApril  25,  2025.  It  is  undisputed  by  both  parties  that  the  claimant  never  was  fully  cleared  by  a \nDOT examiner to the point that the respondent would return him to work. \n On May 15, 2025, the  claimant was seen by  Dr.  James Brigance  regarding his left knee \ndifficulties. Following is a portion of that medical record: \nSubjective \n\nTownley – H404860 \n \n-7- \nPatient  ID:  Dannie  Gerald  Townley  Jr  is  a  41  y.o.  male  who \npresents for left leg pain. \nPatient  here  to  follow-up  on  chronic  left  knee  pain.  It  has  been \nawhile  since  he  has  been  our  clinic  needs  to  reestablish  care.  He \nhad  an  injury  at  work  unloading  a  truck  and  had  injury  to  his  left \nknee which required meniscus repair about 9 months ago. He went \nto  physical  therapy  and  has  been  having  ongoing  evaluation  by \noutside  Orthopedics  Dr.  Clayton.  He  comes  in  today  stating  an \nneeds  referral  to  a  new  orthopedist  because  he  is  having  trouble \ngetting into Dr. Clayton. Does not have any insurance and is Osage \ntribal  member.  Reports  continued  left  knee  pain  difficulty  with \nextension  and  flexion  and  has  not  been  able  to  pass  a  DOT \nphysical to return to work.  \n \n*** \nAssessment & Plan \nHistory of bucket handle tear of medial meniscus \nContinued  left  knee  pain  after  surgical  intervention  and  meniscus \nrepair  about  9  months  ago.  Had  an  injury  at  work  unloading  a \ntruck.  Is  requesting  a  2\nnd\n opinion  or  follow-up  with  some  of  the \northopedist  because  he  has  had  difficulty  getting  into  his  previous \northopedic  surgeon  Dr.  Clayton  who  performed  this  surgery  9 \nmonths  ago.  I  informed  the  patient  that  since  he  is  not  a  Choctaw \ntribal member he is not eligible to see our orthopedic surgeon. We \nwill  in  the  meantime  get  x-ray  of  the  left  knee  and  repeat  MRI  to \nevaluate  and  consider  outside  referral  for  further  evaluation  as \nnecessary. I will follow up on x-ray and MRI results as they return. \nPatient agrees. \nOrders: \nXR knee 3 views left; Future \nMR knee left wo IV contrast; Future \n \n On  May  16,  2025,  the  claimant  underwent  an  MRI  of  the  left  knee  at  the  Talihina \nhospital. Following are the impressions from that diagnostic test: \nImpression: \n1. Horizontal-oblique signal abnormality in the posterior horn and \nbody of the medial meniscus concerning for a meniscal tear. Given \nthe  clinical  history  of  recent  meniscal  repair  surgery,  the  signal \nabnormality  could  be  related  to  postoperative  changes.  Clinically \ncorrelate with physical exam. \n2. Minimal grade II chondromalacias along the articular surfaces of \nthe medial femoral condyle and medial facet of the patella. \n3. Small suprapatellar joint effusion. \n\nTownley – H404860 \n \n-8- \n4.  Mild  tendinosis  of  the  biceps  femoris  tendon  at  its  fibular \nattachment. \n5.  Focal  small  area  of  amorphous  signal  MLD  in  the  infrapatellar \nfat pad near the midline of the joint likely representing developing \narthrofibrosis related to recent arthroscopy. \n \n On August 12, 2025, the claimant was seen at UAMS Orthopedics and Sports Medicine \nby Dr. Tyler Carllee. Following is a portion of that medical record: \nChief Complaint: \nLeft knee \n \nHistory of Present Illness \nDannie Townley is a 41 y.o. year old male patient. \nHe  is  a  new  patient  to  my  clinic.  A  large  portion  of  his  history  is \ndocumented  in  the  outside  records  media  lab.  He  had  a  work \nrelated  injury  in  July  of  2024  where  he  fell  in  his  truck  and  a  lift \nran  over  his  leg.  He  has  had  knee  pain,  leg  pain  and  foot  pain \nsince.  He  was  diagnosed  with  a  medial  meniscus  tear  and  had  an \narthroscopic  medial  meniscectomy  with  medial  femoral  condyle \nmicrofracture in September of 2024. He has done PT and had some \nimprovement. He has persistent medial knee pain and swelling. He \nhad  a  post  op  MRI  that  showed  concern  for  a  persistent  medial \nmeniscus  tear.  He  was  referred  to  us  for  a  second  opinion.  He \ncontinues to have numbness on the top of his left foot. He has not \nhad a steroid injection. He unfortunately does not have all records \nassociated with his care today. \n \n*** \nImaging and Results \nI  reviewed  a  post  operative  MRI  from  May  of  2025.  This  was  all \nthat  was  available  today.  This  shows  oblique  T2  signal  in  the \nmedial  meniscus  posterior  horn.  This  looks  to  be  a  tear  vs.  post \nsurgical  changes.  He  has  an  effusion.  There  is  a  full  thickness \ncartilage  defect  on  the  posterior  medical  femoral  condyle  with \nunderlying  subchondral  edema  measuring  about  1cm  in  its  largest \ndiameter.   There   is   early   patellar   chondromalacia.   There   is   a \nmoderate size effusion. \n \nAssessment and Plan \n41  year  old  with  left  knee  and  foot  pain.  I  have  concern  for  a \npersistent  medial  meniscus  tear  medially.  He  has  paresthesia  over \nthe dorsal foot that may be related to a compressive neuropathy or \nmononeuropathy of the left. \n\nTownley – H404860 \n \n-9- \n \nI have asked him to get his arthroscopic photos if possible. I would \nlike to be able to view his pre operative left knee MRI. I would like \nto  see  his  CT  scan  of  the  foot  and  radiographs.  I  am  ordering  an \nEMG/NCS to evaluate his peripheral neuropathy symptoms. I will \nsee him again  after  all of this can be done and discuss options for \ntreatment including non operative and operative options. \n \nTotal time on the date of the encounter is : 45 minutes. \n \n On August 20, 2025, the claimant was again seen by Dr. Carllee. Following is a portion \nof that medical record: \nSubjective: \nDannie  is  a  41-year-old  gentleman  who  returns  today  for  his  left \nknee.  Since  we  last  saw  Ms.  Undergone  EMG  nerve  conduction \nstudy  to  evaluate  for  peroneal  neuropathy.  He  has  also  obtain \nrecords  including  his  previous  surgery  arthroscopic  photos  his \npreoperative  MRI  his  preoperative  CT  scan  of  his  foot  and  other \nradiographs available for review today. \n \n*** \nAssessment and Plan: \n41-year-old gentleman with a work related injury over a year ago. \nHe  has  persistent  pain  and  swelling  in  his  knee.  I  think  he  has  a \nmeniscus    tear    that    was    incompletely    resected    and    would \nrecommend  arthroscopic  revision  medial  meniscectomy.  I  do  not \nthink an aggressive approach with his cartilage lesion will result in \nany benefit but chondroplasty may be indicated if he has any loose \nfragments  or  unstable   flaps  persisting  on  the  medial  femoral \ncondyle.  I  do  not  think  his  peroneal  nerves  including  his  current \nsymptomatology  from  a  compression  standpoint  and  thus  I  would \nnot  recommend  any  surgery  for  that.  He  may  benefit  from  some \nneuropathic  medication  like  gabapentin  or  Lyrica  in  the  future  if \nhis  symptoms  do  not  improve.  He  is  in  agreement  with  our  plan \ntoday.   He   would   like   to   proceed   with   revision   surgery.   He \nunderstands risks benefits alternatives to surgery. Risks of surgery \ninclude  by  are  not  limited  to  incomplete  relief  of  symptoms, \nprogression  of  osteoarthritis,  need  for  further  surgery,  pain  and \nswelling,  would  complications  and  infection,  bleeding,  blood  clot, \nneurovascular  injury,  risks  of  anesthesia  and  others.  When  repair \nor  reconstruction  is  indicated  there  are  risks  for  retear  of  the \nrepaired or reconstructed structure. \n \n\nTownley – H404860 \n \n-10- \nI discussed his case independently with the case manager who was \nwith him separately today. We will try to see if this is approved by \nworker’s comp. He will keep his same work restrictions as last \ntime. \n \nTotal time on the date of the encounter is: 38 minutes. \n \n The claimant has asked the Commission to determine if he is entitled to temporary total \ndisability benefits from March 25, 2025, to September 28, 2025, or in the alternative, whether he \nis entitled to ACA § 11-9-505(a) benefits. \nA  claimant  who  suffers  a  scheduled  injury  is  entitled  to  receive  temporary  total  or \ntemporary  partial  disability  benefits  during  their  healing  period  or  until  they  return  to  work, \nregardless  of  whether  there  is  a  total  incapacity  to  earn  wages. Wheeler  Construction  Co.  v. \nArmstrong,  73 Ark. App. 146, 41 S.W. 3d 822 (2001). \n Dr. Clayton’s March 18, 2025, progress note states, “... We will return him to work with \nno  restrictions.  Extend  physical  therapy  for  2  weeks  at  which  point he should be at MMI.” \nHowever, even after Dr. Clayton’s full release, the claimant continued to have difficulties due to \nhis compensable left knee injury; to the point that the claimant was unable to pass multiple DOT \nmedical examinations. \n The  claimant  sought  relief  for  his compensable  left  knee  injury  from  Dr.  Brigance,  who \nprovided  the  claimant  with  a  left  knee  MRI  and  referred  him  to  Dr.  Carllee.  Dr.  Carllee \nalternately concluded in his August 20, 2025, that the claimant “has a meniscus tear that was \nincompletely resected” and recommended an arthroscopic revision medial meniscectomy. \n While Dr. Clayton found the claimant to be at MMI, he was incorrect as the claimant’s \nhealing  period  had  never  ended  due  to  the  incomplete  meniscus  resection.  The  claimant  never \nreturned   to   work   for   the   respondent   as   he   was   unable   to   pass   multiple   DOT   medical \n\nTownley – H404860 \n \n-11- \nexaminations. The claimant has a scheduled compensable left knee injury, did not return to work \nfor the respondent, and never left his healing period from the time period of March 25, 2025, to \nSeptember  28,  2025.  As  such  he  is  entitled  to  temporary  total  disability  benefits  during  that \nperiod of time. It was noted at the hearing in this matter that the claimant was in arrears for child \nsupport. The claimant’s award of temporary total disability benefits is subject to the statutory \noffset required by the Arkansas Workers’ Compensation Act regarding child support arrearages. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJuly 14, 2025, and contained in a Pre-hearing Order filed July 15, 2025, are hereby accepted as \nfact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \ntemporary total disability benefits from March 25, 2025, to September 28, 2025. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled an attorney’s fee in this matter.  \n ORDER \nThe respondents shall pay the claimant temporary total disability benefits from March 25, \n2025, to September 28, 2025, subject to the statutory offsets required by the Arkansas Workers’ \nCompensation Act for any child support arrearage. \n The respondent shall pay to the claimant’s attorney the maximum statutory attorney’s \n\nTownley – H404860 \n \n-12- \nfee  on  the  benefits  awarded  herein,  with  one-half  of said  attorney’s  fee  to  be  paid  by  the \nrespondent in addition to such benefits and one-half of said attorney’s fee to be withheld by the \nrespondent from such benefits pursuant to Ark. Code Ann. § 11-9-715. \n All sums herein accrued are payable in a lump sum and without discount and shall earn \ninterest at the legal rate until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":23770,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404860 DANNIE TOWNLEY, Employee CLAIMANT HILAND DAIRY CO., LLC, Employer RESPONDENT CCMSI, Carrier RESPONDENT OPINION FILED DECEMBER 9, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claimant represent...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["knee","ankle","back"],"fetchedAt":"2026-05-19T22:33:32.781Z"},{"id":"alj-H406236-2025-12-05","awccNumber":"H406236","decisionDate":"2025-12-05","decisionYear":2025,"opinionType":"alj","claimantName":"Roy Baker","employerName":"R & R Sheet Metal Heating & Air","title":"BAKER VS. R & R SHEET METAL HEATING & AIR AWCC# H406236 December 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BAKER_ROY_H406236_20251205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAKER_ROY_H406236_20251205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                             WCC NO.: H406236 \n  \nROY BAKER, JR., EMPLOYEE                                                                                 CLAIMANT \n \nR & R SHEET METAL HEATING & AIR,   \nEMPLOYER                                                                                                            RESPONDENT    \n                                        \nUNION STANDARD INSURANCE PROVIDENCE,  \nCARRIER/TPA                                                                                                          RESPONDENT  \n \n \nOPINION FILED DECEMBER 5, 2025 \n             \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the Honorable Daniel Wren, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented  by the  Honorable  Karen  H.  McKinney, Attorney at  Law,  Little  Rock, \nArkansas. \n \n          STATEMENT OF THE CASE \nOn September 17, 2025, the above-captioned claim came on for a hearing in Little Rock, \nArkansas.  Previously, a pre-hearing telephone conference was held in this matter on July 9, 2025.  \nA Pre-hearing Order was entered that same day pursuant to the telephone conference.  Said order \nwas  admitted  into  evidence  along  with  the  parties’  pre-hearing  information  filings without \nobjection from the attorneys as Commission’s Exhibit 1. \nStipulations \n During the pre-hearing telephone conference, and/or at the hearing, the parties agreed to \nthe following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within claim. \n \n2. The employee-employer-insurance carrier relationship among the parties on or about \nJuly 29, 2024, the Claimant sustained a compensable injury to his cervical spine, for \nwhich the Claimant has received all appropriate benefits to this point with the exception \nof those being litigated. \n\nBaker – H406236 \n2 \n \n \n3. The Claimant earned an average weekly wage of $1,080.00 which entitles the Claimant \nto a temporary total disability benefits rate of $720.00 per week and a permanent partial \ndisability rate of $540.00 per week. \n4. All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nAct.  \n \n 5.   This claim for additional benefits has been controverted by the Respondents.   \n \n  Issues \n \nBy agreement of the parties the issues to be litigated at the hearing are as follows: \n \n 1.   Whether the Claimant is permanently and totally disabled due to his admittedly  \n        compensable neck injury of July 29, 2024. \n \n 2.    Whether the Claimant’s attorney is entitled to a controverted attorney’s fee on any                                                  \n                   indemnity benefits awarded pursuant to the hearing.  \n \nContentions \n \n The Claimant’s and the Respondents’ contentions are listed below: \n \nClaimant:  \n \n The Claimant suffered an admittedly compensable injury to his neck on August 1, 2024, \nwhen he fell from a ladder and landed on his shoulder.  He was noted to have muscle spasms in \nthe neck.  An MRI at Millennium MRI revealed right paracentral and foraminal disc herniations \nat C6/C7 and at C5/C6.   \nThe  Claimant  underwent  physical  therapy  as  well  as  epidural  steroid  injections  in  his \ncervical spine.  The physical therapy actually increased the Claimant’s pain.  The Claimant had no \nsignificant relief from the epidural steroid injections.   \nThe Claimant attempted to return to work on multiple occasions.  On each occasion, the \nClaimant had to stop working within a few days due to severe pain.   \n\nBaker – H406236 \n3 \n \nThe Claimant had a functional capacity exam performed on February 28, 2025, which was \ncompleted with 50 out of 50 consistency measures.  \n The Claimant cannot return to any employment due to his physical limitations, and due to \nongoing significant and severe pain. \nRespondents: \n The  Respondents  contend that  the  Claimant  sustained  a  compensable  cervical  injury \nsupported only by objective findings of muscle spasms for which he has received all benefits to \nwhich he is entitled.  The Claimant’s treating physician, Dr. Jared Seale assessed the Claimant \nwith  a zero  (0%)  percent  permanent  rating.   Dr. Seale described the Claimant’s CT and MRI \nfindings to reveal no “obvious fractures or acute injuries.  Patient has what’s probable autofusion \nof the posterior disc and facet joint on the left at C3/4” among other clearly degenerative findings.  \nDr. Seale ordered an FCE that found the Claimant capable of working in a Medium Duty Capacity.  \nDr. Seale recommended that the Claimant return to work per the FCE restrictions.  Dr. Seale placed \nthe Claimant at MMI as of February 20, 2025. \n         FINDINGS OF FACT AND CONCLUSIONS OF LAW \nAfter  reviewing  the record  as  a  whole, including  the  medical  reports, the documentary \nevidence, and other matters properly before the Commission, and after having had an opportunity \nto listen  to the Claimant’s testimony and  observe his demeanor, I  hereby  make the  following \nfindings  of  fact  and  conclusions  of  law in  accordance  with  Ark.  Code  Ann. §11-9-704  (Repl. \n2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.     The proposed stipulations set forth above are reasonable and hereby accepted. \n \n\nBaker – H406236 \n4 \n \n          3.         The Claimant failed to prove by a preponderance of the credible evidence that his  \n           compensable neck injury of July 29, 2024, rendered him permanently and totally  \n           disabled from earning meaningful wages in other employment.  \n          4.         All issues not litigated herein or addressed in this Opinion are reserved under the  \n           \n          Arkansas Workers’ Compensation Act.    \n                \nSummary of Evidence \nThe sole witness was the Claimant, Mr. Roy Baker, Jr. \n            The record consists of the hearing transcript of September 17, 2025, and the exhibits held \ntherein.  In addition to the Pre-hearing Order discussed above, the exhibits admitted into evidence \nin this case were Claimant’s Exhibit 1consisting of the Claimant’s medical records of 107 pages; \nClaimant’s Exhibit 2 consisting of non-medical records encompassing 27 pages.   \nTestimony \n The Claimant, age 62, worked for the respondent-employer in July of 2024.  He testified \nthat he fell off a ladder while performing HVAC work for R & R Metal and Air.  The Claimant \nhad worked at R&R for nine years.  His employment duties included installing, maintaining, and \nrepairing heating and air conditioning units for residential customers, and pretty much everything \nexcept for the actual duct work.  The Claimant holds a valid residential HVAC license.  According \nto the Claimant, he has performed HVAC work for 44 years.  Prior to that, the Claimant and his \ndad  worked  together in his  dad’s business.    The Claimant’s dad owned  an  appliance  repair \nbusiness, which served residential  customers, repairing, maintaining,  and  servicing household \nappliances, like refrigerators, washers, and dryers.  The Claimant denied that he obtained his GED.  \nAlthough the Claimant does not hold any other licenses or certificates, he can run equipment which \nrequires  a  state  license  to operate.  While  working  for  R&R, the Claimant performed  only \n\nBaker – H406236 \n5 \n \nresidential appliance  repair work.   Physically, the Claimant had to  be  able  to  lift  furnaces  into \nattics,  set  outside  units, which  required  that he be  able to roll around  and  do a  lot  of physical \nactivities.      He has always  had  a  helper  to assist him  with  lifting  the  furnaces.  However,  the \nClaimant testified that he used a mechanical lift to get the furnaces upstairs.  \n According  to  the  Claimant,  the  average  residential  furnace  weighs  approximately  200 \npounds.  The Claimant testified that he had to put a coil in the furnace and then the plenums on \neach end of it which the ductwork hooks onto.   He confirmed that he had to perform work while \nlying on his back.  The Claimant admitted that he had to constantly turn his head while working.  \nHe denied that he ever had any neck pain before his fall at work.  However, the Claimant admitted \nthat he did not have shoulder pain prior to his work-related fall.  He testified that after the fall, he \nmainly had pain in his shoulder and joint.  The Claimant confirmed that prior to his injury, he had \naches  and  pain  throughout  the  day  from  lifting, twisting, and  bending while  performing  his \nemployment duties.  According to the Claimant, once he got home, he would take Ibuprofen or \nsomething  and use his  electric  blanket  or apply ice packs to  help  relieve  his  symptoms.    The \nClaimant confirmed that he previously missed work occasionally due to physical problems.  His \nabsences totaled a couple of days every four or five months.     \n He explained the mechanism of his fall.  (Tr. 18-19) The Claimant essentially testified that \nhe was on a 10-foot ladder, and probably about five feet up from his feet when he fell.  He stated \nthat when he hit the floor, he fell on his right shoulder.  However, the Claimant insisted that he hit \nonly his right shoulder down to about his elbow because he was almost upside down, and then the \nrest of his body came down.  The Claimant testified that he called his boss and sought treatment \nfrom Baptist Urgent Care, in Benton at the Baptist Family Clinic, under the care of Dr. Jeffrey S. \nMayfield.       He  also treated  with  Dr. Jared Seale.    Per  the  Claimant,  he  underwent diagnostic \n\nBaker – H406236 \n6 \n \nimaging, and sessions of physical therapy.  The Claimant denied that the physical therapy helped \nto relieve his pain.  During the day, he insisted that his pain occurs four  or five times a day, as \nshooting pain through his head.  Currently, the Claimant takes Oxycodone 7.5 for his pain.  The \nClaimant testified he relieves his pain by kneeling or sitting down, holding his neck, and hoping it \ngoes away.  His pain ranges from a five to 10 on a scale of 10.  \n As of the date of the hearing, the Claimant was living at a motel.  The Claimant confirmed \nthat he tried to work after his injury.  However, he testified that the longest amount of time he was \nable to work was three consecutive days.  Per the Claimant, he was unable to work due to the pain.  \nThe Claimant testified that he had to sell his car, and now he drives a borrowed truck that he uses \nfor transportation.  He testified that he has difficulties driving because he has problems with turning \nhis  head  to  look  at  traffic  at  any  point.  Also, the Claimant insisted that  he has  problems  with \nshifting his body to look for oncoming traffic.  \n About  the functional capacity evaluation/FCE,  the Claimant  confirmed  undergoing  the \nevaluation and that he put forth a 100% on it.  However, the Claimant testified that the day after \nthe test, his pain level worsened.  The Claimant  agreed that Dr. Jeffery Mayfield is his primary \ncare  physician.    Dr.  Mayfield prescribes  his  pain  medication  and  a  muscle  relaxer  for  his \nsymptoms.    Although  the Claimant  had  Medicaid,  it  has  been  canceled.    He  confirmed  that  he \napplied for Social Security Disability benefits, and his claim has been  approved, but he has not \nreceived a check yet.  His benefits will be about $1,790.00 a month.  The Claimant admitted that \nhe is willing to return to other kinds of work if he is unable to do HVAC work.   \n He agreed that his present circumstances have taken an emotional toll on him.  According \nto the Claimant, he takes walks, reads and watches TV during the day.  He has tried to ride with a \nfriend of his that has a heat and air company.   \n\nBaker – H406236 \n7 \n \n On cross-examination, the Claimant admitted that Dr. Mayfield has been his primary care \nphysician  for  a  number  of  years.    He  is  very  comfortable  with Dr  Mayfield  and has  even  had \nTelemedicine/Telehealth visits with  him.   The  Claimant  denied that  he  was  previously on \nTramadol.  Instead, the Claimant claimed that he was on Lorazepam due to anxiety.  He claimed \nthat he did not know he has bone spurs but does not have any reason to dispute what the medical \nrecords show.  The Claimant agreed that he has continued to treat under the care of Dr. Mayfield \nvia Telemedicine appointments since his injury.  He had at least 11 Telehealth appointments with \nDr. Mayfield between the date after his injury and through the middle of November, which was \nfor a four-month period.  \n He confirmed that he underwent an MRI of the brain.  It revealed a benign brain tumor.  \nThe  Claimant  admitted to treating with Dr.  Vargas, who  is  affiliated  with OrthoArkansas.   Dr. \nVargas ordered physical therapy.  The Claimant underwent four sessions of therapy and then had \nhis  first  injection in his  cervical spine.  Dr.  Vargas  referred  the  Claimant  to  Dr.  Seale.    The \nClaimant agreed that he saw Dr. Seale on February 3, 2025, and by that time he had already been \nthrough physical therapy and some injections.  He further agreed that Dr. Seale explained to him \nthe findings shown on the MRI of his neck.  Dr. Seale ordered a CT scan of the Claimant’s cervical \nspine.  He admitted that  Dr. Seale assured him that there was no concern  about further damage \nfrom the pain, and that the restrictions could be removed if his condition improved.  The Claimant \nagreed that Dr. Seale has released him to return to work in accordance with his functional capacity \nevaluation restrictions, which showed that the Claimant was physically able to perform work in a \nmedium duty capacity.  \n He agreed that his job was a heavy-duty type of job.  The Claimant testified that his boss \nat R & R said he could return to work there.  However, he admitted that he took himself off work.  \n\nBaker – H406236 \n8 \n \nThe Claimant agreed that he worked for the respondent-employer for nine years.  The Claimant \nearned $1,000.00 a week and worked 40 hours a week.  He agreed that he tried to go back to work \nabout a month after his injury.  Per the Claimant, he tried at least three times to return to his job.  \nHowever, each time, the Claimant worked restricted hours due to his pain.  He confirmed that he \nhas not worked since November.  The Claimant admitted that he received temporary total disability \nbenefits  until  Dr.  Seale released  him  to  be  at  maximum  medical  improvement.   He  stopped \nreceiving checks from workers’ comp in February 2025.  The Claimant admitted that he did some \nodd jobs in July of 2025, for which he was paid for his services.  \n Since November 4, 2024, the Claimant testified that he has done some work in the form of \ncleaning some air conditioners.  Specifically, the Claimant asked to explain this process: \n A.  When you get a job, you’ve got to be able to show up at a certain time work until a \n certain time.  They don’t work with your hours.  You work with theirs.  That’s what hinders   \n everything.  I can’t say I’m gonna be at work a certain five days a week from 8:00 to 5:00. \n I can’t tell ‘em that because I’d be lyin’ and it won’t happen. \n \n Q.  But you can work. \n \n A.  Yeah, I can work hopefully Monday maybe, or maybe Wednesday, but they don’t let \n you choose your hours, is what I’m saying.  \n \n Q.   If  you  could  have  a  job  where  you  could choose your  hours,  you  could choose  your \n hours, you could do that though, wouldn’t you? \n \n A.  Yeah, I want my money.  \n \n On redirect examination, the Claimant testified that he does some work for Alan Levart, \nwashing the outside of air conditioners.  The Claimant testified that Levart is a one-man heat and \nair  company.   According  to  the  Claimant,  he  trained  Levart  about  35  years  ago.    However,  he \ndenied that Levart expects him to do a full day’s work.  According to the Claimant, it takes him \nabout 15 minutes to wash the outside coils of an air conditioner.  He confirmed that he told Dr. \n\nBaker – H406236 \n9 \n \nSeale he had tried to return to work on three separate occasions and found it to be a disaster due to \npain.  \n The Claimant testified on redirect-examination: \n Q.  With accommodations you said you could work. \n A.  Yes.  I don’t know what, but yes.  I mean – \n Q.  All right. \n A. - - I’m not dead yet. \nMedical Evidence \n On August 1, 2024, the Claimant sought medical treatment from the Benton Family Clinic, \nunder the care of Dr. Jeffery S. Mayfield.  The Claimant presented for evaluation of complaints of \nneck and shoulder pain.  He reported a history of having fallen from a 10-foot ladder, landing on \nhis shoulder, without any impact on his neck.  Immediately after the fall, he was unable to move \nhis arm but regained some mobility after driving half a mile.  He reported that it was at that point, \nthen that he began to experience severe neck pain.  The Claimant’s pain was localized in the middle \nof his shoulder blades and extended down to his buttocks.  He described his pain as being sharp, \nradiating from his neck and encircling his body.  The Claimant reported that he sought emergency \ntreatment and had imaging studies taken at that facility which revealed a slipped disc in his neck, \nfor which he was recommended to consult with an orthopedic specialist but was unable to secure \nan appointment without a referral.  He reported that he tried to work but the pain was unbearable.  \nDr.  Mayfield  assessed  the Claimant  with a slightly slipped  disc,  for  which  he  prescribed  a \nmedication  regimen.   X-rays  revealed an  impression  of: “1....No vertebral body height loss  is \nappreciated.    2.  T1  spinous  process  tip  avulsion,  likely  chronic.    3.  Moderate  to  advanced disc \n\nBaker – H406236 \n10 \n \ndegenerative changes,  greatest  at  C5-C6  and  C6-C7.”  Dr.  Mayfield  prescribed  oxycodone  and \nordered an MRI.  At that point, he also continued the Claimant’s off work status. \n On  September  11,  2024,  the Claimant  underwent  an  MRI  of  the cervical  spine,  which \nrevealed extensive degenerative  disc  disease,  which  included revealed  right  paracentral  and \nforaminal disc herniations at C6/C7 and at C5/C6.   \n 1. Broad based posterior, right paracentral and foraminal herniation of C6-7 disc,   \n causing mild-to-moderate narrowing of the central canal and neural foramina,   \n bilaterally.  The herniation measures approximately 6 mm in size.  Mild facetal and  \n and uncovertebral arthropathy is detected at this level adding to neural foraminal   \n stenosis. \n \n 2. Broad based posterior, left paracentral and foraminal herniation of' C5-6 disc,   \n causing mild narrowing of the central canal and neural foramina, bilaterally (right  \n more than left).  The herniation measures approximately 5 mm in size.  Mild facetal  \n and uncovertebral arthropathy is detected at this level adding to neural foraminal   \n stenosis. \n \n 3. Posterocentral bulge of C3-4 disc, causing mild narrowing of the central canal and  \n neural foramina, bilaterally.  The bulge measures approximately 3 mm in size.  Mild  \n facetal arthropathy is detected at this level. \n \n 4. Posterior right paracentral and foraminal bulge of C4-5 disc, causing mild  \n narrowing of the central canal and left neural foramen.  The bulge measures   \n approximately 3 mm in size.  Mild-to-moderate facetal arthropathy is seen at-this   \n level adding to neural foraminal stenosis. \n \n 5. Posterior and right paracentral bulge of C2-3 disc, without any significant central  \n canal or neural foraminal narrowing.  The bulge measures approximately 2 mm in  \n size.  Mild facetal arthropathy is detected at this level. \n \n 6. Diffuse bulge of C7-T1 disc, without any significant central canal or neural   \n foraminal narrowing.  The bulge measures approximately 2 mm in size.  Mild facetal  \n arthropathy is detected at this level. \n \n 7. Mild vertebral offsets at few levels. \n \n 8. Marrow appears mildly heterogeneous in signal intensity.  This can be due to   \n combination of degenerative changes, residual red marrow, fatty conversion, work  \n compensation injury.  Please correlate clinically. \n \n\nBaker – H406236 \n11 \n \n 9. Subtle altered marrow signal intensity is seen in relation to the posterior arch   \n elements of C7 and T1 vertebrae, bilaterally.  This can represent mid degenerative  \n or traumatic edema.  Please correlate clinically. \n \n 10. There is suggestion.  of presence of focal lesion in the sellar-suprasellar location as  \n described.  This can represent pituitary macroadenoma.  Please correlate clinically.  \n Further evaluation with dedicated imaging of the sella and suprasellar region may   \n be done as clinically indicated. \n \n 11. Degenerative changes are seen in the atlantoaxial joint. \n On November 24, 2024, the Claimant sought medical treatment from Dr. Jared Seale. At \nthat time, the Claimant reported problems included degeneration of cervical intervertebral, cervical \ndisorder with radiculopathy and impingement syndrome of his right shoulder region.  Dr. Seale \nassessed  the  Claimant  with: “1.   Suboccipital  pain,  work  related  fall,  question  etiology.   2. \nDegenerative disc disease of the cervical spine worse at C-6-7.”  He opined that the Claimant had \nsuboccipital pain and spasms, which are challenging to treatment and have not responded to initial \nmedication.    According  to  this clinic  note,  Dr.  Seale  specifically  stated  that  the Claimant  has \ndegenerative  disc  disease  of  the  cervical  spine,  with  significant  foraminal  narrowing  and  facet \natrophy  contributing  to  his  persistent  neck  pain.    At  that  time,  Dr.  Seale  recommended  that  the \nClaimant continue physical therapy and work with restrictions of no bending, twisting, or lifting \nover  20  pounds.  Dr.  Seale  opined  that  the  MRI  did  not show any  objective  findings  of  injury.  \nHowever, he correlated the Claimant’s current symptoms and need for treatment to his work injury.      \n On December 3, 2024, the Claimant presented to the office of Dr. Gary Frankowski due to \ncontinued persistent upper cervical neck pain, along with posterior occipital headache symptoms.  \nClinically  the Claimant  presented  as  occipital  neuralgia  bilaterally.   Dr.  Frankowski  performed \noccipital nerve blocks bilaterally. \n A CT without contrast of the Claimant’s cervical spine was performed on December 18, \n2024, with an impression of: \n\nBaker – H406236 \n12 \n \n 1. No acute abnormality in the cervical spine. \n 2. Moderate to advanced multilevel spondylosis of the cervical  \n spine and reversal of the normal cervical lordosis at the C4-C7 levels. \n 3. Moderate to severe right foraminal stenosis at C6-C7. \n 4. Moderate left foraminal stenosis at C3-C4. \n 5. Moderate right foraminal stenosis at C4-C5. \n 6. Mild canal stenosis at C6-C7. \n  \n The Claimant presented to Dr. Frankowski again on January 6, 2025, with a chief complaint \nof  neck  pain.    At  that  time,  his  assessment  of  the  Claimant  was  cervical  spondylosis.    Dr. \nFrankowski  performed  bilaterally  C2-C3, C3-C4, and C4-C5  Therapeutic  Facet  Joint  Injection \nunder fluoroscopy end sedation. \n On  February  3,  2025,  the Claimant  returned  to  Dr.  Seale  due  to  problems  including \n“cervical   spondylosis,   displacement   of   cervical intervertebral,   degeneration   of   cervical \nintervertebral   disc,   cervical   disc   disorder   with   radiculopathy,   cervical   radiculopathy,   and \nimpingement syndrome of right shoulder region.”  At  that  time,  the  Claimant  reported  that the \nseverity of his pain was nine, and the quality of symptoms sharp, shooting and stabbing.  Dr. Seale \nassessed the Claimant with a 0 % impairment rating because there were no objective findings of \nan injury.  The Claimant told Dr. Seale he was unable to work due to pain.  Therefore, Dr. Seale \nrecommended that he undergo a functional capacity evaluation/FCE. \n The  Claimant  underwent  an  FCE  on  February  28, 2025, with  50  out  of  50  consistency \nmeasures within reliable expected limits.  Per this medical report, the Claimant’s evaluation was \nperformed  at  the  OrthoArkansas  Physical  Therapy  Clinic  in  Little  Rock,  Arkansas.    He \ndemonstrated  the  ability  to  perform  an  occasional  bi-manual  lift  and  carry  up  to  40  pounds.  \nOverall, the Claimant proved the ability to perform work in the MEDIUM classification of work \nas defined by the U.S. Dept. of Labor’s guidelines over the course of a normal 8-hour work- day \nwithin the physical limitations noted above.   \n\nBaker – H406236 \n13 \n \n On March 26, 2025, Dr. Seale wrote the following letter finding the Claimant’s FCE to be \nvalid.  As a result, Dr. Seale returned the Claimant to medium classification of work.  Dr. Seale \ndeclared that the date of maximum medical improvement for the Claimant was February 20, 2025, \non the same date as limitations were defined.  He noted the Claimant’s functional capacity exam \nis directly related to his  symptoms.  Dr. Seale stated that the Claimant does not have  any acute \nfindings.    He  also  stated  that  at  least 51% of the Claimant’s current symptoms and physical \nrestrictions are related to the Claimant’s work injury.  \nDeposition of Dr. Seale \n \n On examination by the Claimant’s attorney, Dr. Seale confirmed he saw the Claimant for \noffice visits and performed evaluations of his cervical spine.   He admitted that he reviewed the \nactual  MRI  imaging  of  the  Claimant’s neck.    Dr.  Seale  explained  that  the  Claimant  was \ncomplaining of pain in the suboccipital area, basically the back of his head, below the skull, in the \nupper cervical spine.  According to Dr. Seale, the Claimant told him he sustained a fall off a ladder \nwhile  at  work.   At  that  point,  the Claimant  had  already undergone some  physical  therapy  and \nepidural steroid  injections  into  his  cervical  spine  when  he  saw  him.   He  confirmed  that  he \ncorrelated the Claimant’s pain to his work-related injury although he had no resulting objective \nfindings.   Dr.  Seale  testified  that  the  Claimant’s  x-rays,  MRI, and CT  scan  had  no  objective \nfindings  of  an  injury  such  as a fracture,  disc herniation,  or acute  findings.  Instead, Dr.  Seale \ntestified that there were only degenerative findings.  Dr. Seale opined that a new injury from the \nClaimant’s fall could not be discernable upon multiple imaging.       \n Under further questioning, Dr. Seale was asked to explain the findings revealed on the CT \nscan performed on December 18, 2024, which showed there was a reversal of the cervical lordosis \nat the C4 through C7 levels.  Dr. Seale testified that in simple terms it means the neck has a natural \n\nBaker – H406236 \n14 \n \narch  to  allow  the  head  to  look  forward  or  upward  and  the Claimant had  lost his  natural arch.  \nAccording to Dr. Seale, in the Claimant’s case, it was due to multiple levels of degeneration or \nloss  of  disc  space  heights.    He  further  explained  that  in  other  words,  that  is  a  finding  that  the \nClaimant  had  prior  to  his  injury.  With  respect  to  the  lordotic  curve,  Dr.  Seale  opined  that  it  is \nhighly unlikely that this was produced by an acute injury given his degenerative changes.  Per Dr. \nSeale, the Claimant’s lordosis occurred due to multiple years of wear and tear on his neck.  He \nagreed that the FCE was correct, consistent, and reliable.  According to Dr. Seale, the Claimant \nhas real pain, but that is a subjective finding, and he was unable to apply an impairment rating.  \nDr. Seale testified that he normally does not check for muscle spasms.         \n The Claimant was assessed with degenerative issues in the cervical spine resulting in neck \npain.    He  specifically  confirmed  that  the MRI’s before and after the Claimant’s fall would be \nunchanged due to his pre-existing degenerative disc disease.  Dr. Seale confirmed that the Claimant \nhad an onset of pain after his fall.  However, Dr. Seale was unable to decide the exact cause of the \nClaimant’s symptoms because he has degeneration everywhere. \n On recross examination by the Respondents’ attorney, Dr. Seale confirmed that if the \nClaimant has muscle  spasms,  they  are  more  than  likely  going  to  be  chronic.    He  stated  that  he \nwould  not  assess  the Claimant  with  a  permanent  impairment  for  a  muscle  spasm.   Dr.  Seale \ntestified that when he looked at the MRI, it revealed multiple levels of degenerative disc disease, \nwith the worse degenerative discs at C5-C6 and C6-7.  According to Dr. Seale, the Claimant has \nModic endplate changes at C6-7, which is basically advanced degeneration or the body’s reaction \nto degenerative disc disease.  He also testified that there was no stenosis at C2-3, but there was \nmild  stenosis  at  C3-4,  with  mild  stenosis  at  C3-4  and  severe  stenosis  on  the  right  at  C4-5.   Dr. \n\nBaker – H406236 \n15 \n \nSeale further testified that there was some moderate to severe foraminal stenosis on the right at \nC5-6, and severe bilateral foraminal narrowing C6-7 and C7-T1.     \n Dr. Seale confirmed that he released the Claimant to MMI sometime in February of 2025.  \nHe gave the Claimant three options, which included filing for disability, finding lighter work or he \ncould just continue to work.  However, Dr. Seale opined that from a spine standpoint, the Claimant \nwas fine to go back to doing his job based on the MRI, CT, and x-rays.  Dr. Seale confirmed that \nhe returned the Claimant to medium work based on the FCE.  Dr. Seale agreed that his opinion \nwas within a reasonable degree of medical certainty regarding the Claimant’s ability to return to \nwork at a medium duty capacity.          \n                        Adjudication \n The Claimant asserts that he has been made permanently and totally disabled because of \nhis compensable neck injury of July 29, 2024.  \nArk. Code Ann. §11-9-519(e)(1) (Repl. 2002) provides: \"Permanent total disability\" means \nan inability, because of compensable injury or occupational disease, to earn any meaningful wages \nin the same or other employment.  Furthermore, the statute provides that the burden of proof shall \nbe on the injured employee to prove their inability to earn any meaningful wages in the same or \nother employment.  Ark. Code Ann. §11-9-519(e)(2) (Repl. 2002).  \n The burden of proving permanent total disability is on the Claimant.  The Claimant must \nprove  entitlement  to these  benefits  by  a  preponderance  of  the  evidence.   Preponderance  of  the \nevidence means the evidence that has greater weight or convincing force.  Metropolitan Nat’l Bank \nv. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nThe Claimant is 62 years of age and holds a valid license in residential HVAC.  He had \nworked  for  the R&R Sheet  Metal  Heat  &  Air for  nine years, performing  employment  duties  in \n\nBaker – H406236 \n16 \n \nconnection with the servicing, maintenance and replacement of residential heating and air units.  \nHis  prior classification  of work falls  under  the functional  guidelines for  heavy classification  of \nwork  as  defined  by  the U.S.  Department  of  Labor. The  Claimant suffered  an  admittedly \ncompensable injury to his neck on July 29, 2024, when he  fell from  a ladder and landed on his \nright shoulder.  The Claimant reported his injury to his supervisor.  The Respondents provided the \nClaimant  with  extensive  conservative  medical  treatment  which  included  a  medication  regimen, \nphysical therapy, and epidural steroid injections in his cervical spine.   \nDr.  Seale  opined  that  medical  documentation showed that  the  Claimant  suffered muscle \nspasms  in his neck because  of his  work-related  fall.   The  Respondents  have  accepted  this  as  a \ncompensable  claim for the Claimant’s neck injury in the form of muscle spasms. I  find  this \nassertion to be correct and supported by the imaging performed on the Claimant’s cervical spine \nfollowing his work-related fall.   \nAn MRI  of the Claimant’s  cervical  spine  revealed  extensive  significant  pre-existing \ndegenerative disc disease in his cervical spine area.  These pre-existing degenerative abnormalities \nwere also revealed on a CT scan, which was performed of the Claimant’s his neck following his \nwork-related injury of July 2024.  Despite conservative treatment in the form of physical therapy, \ninjections and medication, the Claimant has maintained that he has had no significant relief from \nany of these modalities.  The Claimant treated under the care of Dr. Seale, who opined that he was \nat maximum medical improvement in February of 2025.  Dr. Seale assessed the Claimant with a \n0% permanent  impairment  rating  for  his  compensable  neck  injury.   However,  the Claimant \ncontinued to complain of ongoing severe pain.  As a result, the Claimant underwent a functional \ncapacity evaluation which was performed on February 28, 2025.  The Claimant completed the FCE \nwith 50 out of 50 consistency measures.  Per this evaluation, the Claimant showed the ability to \n\nBaker – H406236 \n17 \n \nreturn  to  gainful  employment  in  the  medium classification  of  work.  Dr.  Seale  agreed  with  the \nvalid results of this FCE and has released the Claimant to the medium category of work.  Although \nthe FCE proves the Claimant is unable to return to heavy duty work, this evidence clearly proves \nthat he has the physical capacity to perform medium work duties.  Hence, I am not persuaded that \nthe Claimant cannot return to any meaningful employment due to his alleged ongoing significant \nand severe pain resulting from his work injury.    \nAccordingly,  after  having  listened  to  the Claimant testimony and  been given  the \nopportunity to see his demeanor, I found that the Claimant’s testimony to be incredulous in this \nregard based on all the credible evidence to the contrary.  The Claimant tried to return to work on \nmultiple occasions.  However, on each occasion, the Claimant maintained he had to stop working \ndue to severe pain.  I do not find the Claimant’s testimony to be convincing.  \nIn  that  regard,  during  cross-examination, the Claimant, by  his  own  admission eagerly \ntestified that he could work given the proper circumstances.  There is no medical documentation \nsupporting the  finding that  the  Claimant  is  unable  to  return  to  other  gainful  employment.  Most \nnotably,  no  physician  has  opined  that  the  Claimant  has  been  rendered permanently  and  totally \ndisabled  because  of  his  compensable  neck  injury  of  July  2024.  As a  result, I  have  attached \nsignificant weight to the Claimant’s valid FCE results, and Dr. Seale’s expert opinion wherein he \nopined that the FCE results are correct in establishing that the Claimant is physically capable of \nperforming medium classification of work.  There is no credible evidence proving otherwise.  In \nfact,  the Claimant’s own testimony establishes that  he  has  been consistently working odd  jobs \nsince July 2025, for which he was paid for his services.  I am convinced that the evidence clearly \nindicates that the Claimant is primarily motivated to work only odd jobs.   \n\nBaker – H406236 \n18 \n \n Hence, the Claimant has rendered himself unable to perform gainful employment with his \nown self-imposed physical limitations.  Accordingly, the preponderance of the credible evidence \nbefore me clearly proves that the Claimant has the physical capacity to earn meaningful wages in \nthe medium classification of work.   \n Therefore, I am compelled to find that the Claimant failed to prove by a preponderance of \nthe evidence that he has been rendered totally and permanently disabled by his compensable neck \ninjury of July 29, 2024.   \n                                                      ORDER \n Based  on  the  foregoing  findings  of  facts,  this  claim  for  permanent  and  total  disability \nbenefits is hereby respectfully denied and dismissed in its entirety.    \n      IT IS SO ORDERED. \n \n                                                                            ______________________                       \n                         CHANDRA L. BLACK \n                                Administrative Law Judge","textLength":36562,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO.: H406236 ROY BAKER, JR., EMPLOYEE CLAIMANT R & R SHEET METAL HEATING & AIR, EMPLOYER RESPONDENT UNION STANDARD INSURANCE PROVIDENCE, CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 5, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in Little...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["cervical","neck","shoulder","back","fracture"],"fetchedAt":"2026-05-19T22:33:24.464Z"},{"id":"alj-H301388-2025-12-05","awccNumber":"H301388","decisionDate":"2025-12-05","decisionYear":2025,"opinionType":"alj","claimantName":"Faith Lawson","employerName":"United Parcel Service, Inc","title":"LAWSON VS. UNITED PARCEL SERVICE, INC. AWCC# H301388 December 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LAWSON_FAITH_H301388_20251205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LAWSON_FAITH_H301388_20251205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H301388 \n \n \nFAITH LAWSON, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nUNITED PARCEL SERVICE, INC.,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nLM INSURANCE CORPORATION, \nCARRIER/TPA                                                                                                       RESPONDENT                                                                      \n          \n                                                                                              \nOPINION FILED DECEMBER 5, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n \nClaimant, pro se, did not appear for the dismissal hearing.         \n \nRespondents represented  by the Honorable David C.  Jones, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A  hearing  was  held  on October  14, 2025,  in  the above-referenced  matter pursuant  to \nDillard v. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), to determine \nwhether this case should be dismissed for failure to prosecute under the provisions of Ark. Code \nAnn. §11-9-702 (Repl.  2012), and Arkansas Workers’ Compensation Commission  Rule  099.13 \n(now codified at 11 C.A.R. § 25-110(d)). \nAppropriate notice of this hearing was tried on all parties to their last known address, in \nthe manner instructed by law.   \nNo testimony was taken. \nThe record consists of the hearing transcript of October 14, 2025, and the documents held \n\nLawson – H301388 \n \n2 \n \ntherein.  Commission’s Exhibit 1 consisting of two pages\n1\n has been marked, accordingly; and the \nRespondents introduced into evidence an exhibit consisting of sixty-nine numbered pages, which \nwas thus marked Respondents’ Exhibit 1.  Both exhibits were introduced into evidence without \nobjection.  \n                                                               Background \n The procedural history of this claim is as follows: \n The Claimant has been employed with UPS since 2018 as a package care delivery driver.  \nShe was delivering and removing a package from the rear of her package car when she felt a pop \non her back.  There was no dispute about her injury.  The Respondents accepted it as compensable, \nand payments on benefits were started.  Of note,  the Claimant at one point had two  claims that \noverlapped.    The other prior overlapping claim is  AWCC  No.:H203243,  with  an  injury  date  of \nApril 26, 2022.  That claim was dismissed pursuant to my Opinion filed on May 22, 2024.  \nAbout  the  present  claim  before  the  Commission,  the Claimant’s former attorney filed  a \nForm  AR-C  with  the  Commission on  June 28,  2023,  alleging  that  the Claimant  sustained  a \ncompensable injury on January 17, 2023, while working for the respondent-employer.  The present \nclaim is AWCC No.:H301388.  According to this document, the Claimant provided the following \ndescription  of  her  work-related accidental injury: “Claimant was injured during the course and \nscope of her employment.  Claimant sustained injuries to her back and other whole body.” Per the \nForm AR-C, the Claimant requested both initial and additional workers’ compensation benefits.      \n  On  February  28,  2023,  the Respondents’ case manager filed  a  Form  AR-2,  with  the \nCommission accepting compensability of the claim for a compensable lower lumbar/back injury.   \n \n \n1\n Commission’s Exhibit 1 was inadvertently left out of the hearing transcript.  Therefore, it has been blue \nbacked and made a part of the record and marked accordingly. \n\nLawson – H301388 \n \n3 \n \nThe Respondents  filed  an  amended  Form  AR-2  with  the  Commission April  13,  2023.    Per  this \namended form, the Respondents reported that the claim was compensable and that temporary total \ndisability benefits had been started and that the claim was ongoing at that point.  It appears that \nthe primary purpose for filing this amendment was to specify the Claimant’s correct compensation \nrates.   \n On September 15, 2023, the Claimant’s attorney filed a request for hearing on the within \nclaim and the other claim (AWCC No.:H203243) based on a dispute at that point which involved \nwhether the Claimant  was  entitled  to  back  surgery.  The  files  were  assigned  to  my  office  for \nadjudication  of this  issue.    However,  the  Respondents approved  the  request  for  the  Claimant  to \nundergo surgery.  As a result, counsel for the Claimant withdrew her request for a hearing and the \nclaims were returned to the Commission’s general files. \n Subsequently, on February 20, 2024, the Claimant’s attorney filed a motion to withdraw \nfrom representing the Claimant in both claims.  On March 20, 2024, the Full Commission entered \nan order granting the motion.    \n The Claimant has not requested a hearing since the filing of her request for a hearing in \nSeptember 2023, but it was later withdrawn.  This action clearly occurred more than six (6) months \nago. \nTherefore, on or about July 11, 2025, the Respondents filed a Motion to Dismiss and Brief \nin Support of the Motion, with the Commission.  The Respondents notified the Claimant of said \nmotion per a certificate of service sent via the United States Postal Service on that same date.      \nSubsequently, on July 15, 2025, my office sent a letter-notice informing the Claimant of \nthe Respondents’ motion to  dismiss,  and  a  deadline of  twenty (20) days  for  filing  a  written \n\nLawson – H301388 \n \n4 \n \nresponse.  This letter was sent via both first-class and certified mail.  The letter-notice sent by way \nof first-class mail has not been returned to the Commission.   \nPer an Amended Notice of Hearing\n2\n generated on September 17, 2025, my office notified \nthe  parties  that  a  hearing  had  been rescheduled on the Respondents’ motion to dismiss.  Said \ndismissal hearing was set for October 14, 2025, in El Dorado, Arkansas.  This hearing notice was \nsent via first-class and certified mail. \nThe United States Postal Service returned the hearing notice sent via certified mail to the \nCommission on October 16, 2025, because it went unclaimed.  However, the notice sent via first-\nclass  mail has  not  been returned  to  the Commission.   Based  on  the foregoing, the  evidence \npreponderates that the Claimant received appropriate notice of the dismissal hearing.     \nStill, there has been no response from the Claimant. \nA hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \ndid not appear for the hearing.  However, the Respondents appeared through their attorney.  The \nRespondents’ counsel argued, among other things, that the Claimant has failed to timely prosecute \nher claim for workers’ compensation benefits.   Counsel  further  noted  that  the  Claimant  did  not \nappear at the hearing to object to the dismissal or request a hearing.  As such, Counsel moved that \nthis claim be dismissed for failure to prosecute under Ark. Code Ann. §11-9-702, and Commission \nRule 099.13 (now codified at 11 C.A.R. § 25-110 (d)). \n             Adjudication  \nTherefore, the statutory provision and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \n \n \n2\n An  Amended  Notice  of  Hearing  was  sent  rescheduling  the  motion  to  dismiss  hearing  because  the \npreviously scheduled dismissal hearing had to be rescheduled.     \n\nLawson – H301388 \n \n5 \n \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \nAlso, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 (now codified at 11 C.A.R. § 25-110 (d), reads as follows: \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue her claim \nfor workers’ compensation benefits, but she has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made  any  effort to prosecute her claim since the filing of  her \nrequest for a hearing in September 2023, which was done than six (6) months ago; and nor has she \nresisted the motion to dismiss her claim despite having received notice of the dismissal hearing.  \nMoreover, the Claimant has failed to respond to the Notices of this Commission.   \n Thus, the  evidence  preponderates  that  the  Claimant  has clearly failed  to  prosecute  this \nclaim for workers’ compensation benefits.  For these reasons, I am convinced that the Claimant \nhas abandoned her claim.   \n\nLawson – H301388 \n \n6 \n \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.   \nI thus find that pursuant to Ark. Code Ann.§11-9-702, and Commission Rule 099.13 (now \ncodified  at  11  C.A.R. § 25-110  (d)),  this  claim  for  workers’ compensation benefits is  hereby \nrespectfully dismissed without prejudice to the refiling of it within the limitation period specified \nunder the Arkansas Workers’ Compensation Act (referred to herein as the “Act”). \n                           FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. The Claimant’s former attorney filed a request for a hearing in September \n2023,  which  was withdrawn.    Since  this  time, the  Claimant  has  not \nrequested  a  hearing  or shown that she  wishes  to  pursue  this  claim  for \nworkers’ compensation benefits.  \n \n3. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n4. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The evidence  preponderates  that  the Respondents’ motion to dismiss this \nclaim for lack of prosecution is well founded, and should be hereby granted, \nwithout  prejudice, per Ark.  Code  Ann. §11-9-702,  and  Commission  Rule \n099.13(now codified at 11 C.A.R. § 25-110 (d)) to the refiling of it within \nthe limitation period specified by law.  \n             \n                                               ORDER \n \nBased  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’ compensation benefits.  This dismissal is made pursuant to the provisions of Ark. Code  \n\nLawson – H301388 \n \n7 \n \nAnn. §11- 9-702, and Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110 (d)), without \nprejudice to the refiling of this claim within the limitation period specified under the Act. \nIT IS SO ORDERED. \n                                                                                              \n          \n                                                                                     _____________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":13090,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H301388 FAITH LAWSON, EMPLOYEE CLAIMANT UNITED PARCEL SERVICE, INC., EMPLOYER RESPONDENT LM INSURANCE CORPORATION, CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 5, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union Coun...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T22:33:26.547Z"},{"id":"alj-H404428-2025-12-04","awccNumber":"H404428","decisionDate":"2025-12-04","decisionYear":2025,"opinionType":"alj","claimantName":"Alesha Dabney","employerName":"Dollar General Store","title":"DABNEY VS. DOLLAR GENERAL STORE AWCC# H404428 December 04, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DABNEY_ALESHA_H404428_20251204.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DABNEY_ALESHA_H404428_20251204.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404428 \n \n \nALESHA M. DABNEY,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nDOLLAR GENERAL STORE,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nDOLGENCORP, LLC/ \nSEDGWICK CLAIMS MG’T SERVICES, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED DECEMBER 4, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Wednesday,   December   4, 2025, before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in \nLittle Rock, Pulaski County, Arkansas. \n \nThe  claimant,  Ms. Alesha  M.  Dabney,  pro  se,  of Sherwood,  Pulaski  County,  Arkansas,  failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Lee J. Muldrow, Wright, Lindsey & Jennings, \nLittle Rock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A  hearing was  conducted  on Wednesday, December  3,  2025,  to  determine  whether  this \nclaim should be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 \nLexis Replacement) and 11 C.A.R. Section 25-110(d) (Code of AR Regulations 2025) (formerly \ncited as Commission Rule 099.13 (2025 Lexis Replacement)). \n         A previous hearing on the respondents’ first motion to dismiss without prejudice for lack of \nprosecution  (MTD1)  was  held  in  this  claim  on  May  14,  2025. (Commission  Exhibit  1). At  that \n\nAlesha M. Dabney, AWCC No. H404428 \n2 \n \ntime the claimant objected to the motion, and testified she intended to hire an attorney to represent \nher in this matter. It appears the claimant has not retained an attorney to represent her in this matter, \nnor has she taken any steps to prosecute her claim. Consequently, by a letter motion filed with the \nCommission on October 7, 2025, the respondents’ renewed their request to dismiss this claim \nwithout prejudice (MTD2). (Respondents’ Exhibit 1).  \n        Thereafter, the claimant was provided due and legal notice of both the respondents’ MTD2, \nas well as the date, time and place of the subject hearing on the motion. The claimant failed and/or \nrefused to respond to the respondents’ MTD2 in  any way; failed and/or refused to object to the \nrespondents’ MTD2; and failed and/or refused to appear at the subject hearing. \n        The record herein consists of the hearing transcripts of both the May 14, 2025, and December \n3, 2025, hearing transcripts and any and all exhibits contained therein and attached thereto, as well \nas the opinion filed May 16, 2025, denying the respondents’ MTD1. (Comms’n Ex. 1). \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute her claim, or to request \na hearing within the last six (6) months. Moreover, she has failed and/or refused to object to the \nrespondents’ MTD2. Therefore, after a thorough consideration of the issues at bar, the applicable \nlaw  as  applied  to  the facts of  this  claim,  and  other  relevant  matters  of  record including the \nrepresentations of credible counsel, I hereby make the following: \n\nAlesha M. Dabney, AWCC No. H404428 \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of both the respondents’ letter MTD2 without \nprejudice filed with the Commission on October 7, 2025, as well as due and legal notice of \nthe date, time,  and  place of  the  subject  hearing,  the  claimant failed  and/or  refused  to \nrespond to the MTD2 in any way; failed and/or refused to object to the MTD2; and failed \nand/or refused to appear at the subject hearing. \n \n3. The claimant has not requested a hearing within the last six (6) months and has taken no \naction(s) to raise any issues related to or to prosecute this claim.  \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ letter \nMTD2 without prejudice filed October 7, 2025, should be and hereby is GRANTED; and \nthis claim is dismissed without prejudice to its refiling pursuant to the deadlines prescribed \nby Ark. Code Ann. Section 11-9-702(a) and (b) and 11 C.A.R. 25-110(d) (formerly cited \nas Commission Rule 099.13). \n \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n                                                                                \n \n\nAlesha M. Dabney, AWCC No. H404428 \n4","textLength":6021,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404428 ALESHA M. DABNEY, EMPLOYEE CLAIMANT DOLLAR GENERAL STORE, EMPLOYER RESPONDENT DOLGENCORP, LLC/ SEDGWICK CLAIMS MG’T SERVICES, INC. CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 4, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:20.315Z"},{"id":"alj-H405531-2025-12-04","awccNumber":"H405531","decisionDate":"2025-12-04","decisionYear":2025,"opinionType":"alj","claimantName":"Cynthia Rector","employerName":"Rcgb Properties, Inc","title":"RECTOR VS. RCGB PROPERTIES, INC. AWCC# H405531 December 04, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RECTOR_CYNTHIA_H405531_20251204.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RECTOR_CYNTHIA_H405531_20251204.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H405531 \n \nCYNTHIA RECTOR, Employee CLAIMANT \n \nRCGB PROPERTIES, INC., Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED DECEMBER 4, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nRussellville, Pope County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents  represented  by JASON  M.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On February 20, 2025, claimant filed Form AR-C requesting benefits for an injury \nto her right arm which occurred on August 12, 2024. Respondent accepted the claim as \ncompensable  and  paid  some  compensation  benefits.  Claimant  has  not  requested  a \nhearing  on  any  unpaid  benefits.  As  a  result,  respondent  filed  a  motion  to  dismiss  this \nclaim on September 2, 2025. \n A hearing on respondent’s Motion to Dismiss was scheduled for November 20, \n2025. Notice of the hearing was sent to claimant by certified mail and was delivered on \n\nRector – H405531 \n \n-2- \nOctober 17, 2025. Claimant did not appear at the hearing and has not responded to the \nrespondent’s motion.  \n Pursuant  to  11  CAR §25-110(d) (previously  codified  as  Commission  Rule \n099.13), the Commission may enter an order dismissing a claim for want of prosecution. \nAfter my review of the respondent’s motion, the claimant’s failure to respond thereto or \nappear at the hearing, and all other matters properly before the Commission, I find that \nclaimant has failed to prosecute this claim. Therefore, respondent’s motion to dismiss \nthis claim is hereby granted. This dismissal is without prejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":1950,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H405531 CYNTHIA RECTOR, Employee CLAIMANT RCGB PROPERTIES, INC., Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED DECEMBER 4, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Russellville, Pope County, Arkansas. ...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:22.372Z"},{"id":"full_commission-H208333-2025-12-03","awccNumber":"H208333","decisionDate":"2025-12-03","decisionYear":2025,"opinionType":"full_commission","claimantName":"Joseph Taylor","employerName":"Dolgencorp., LLC","title":"TAYLOR VS. DOLGENCORP., LLC AWCC# H208333 December 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Taylor_Joseph_H208333_20251203.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Taylor_Joseph_H208333_20251203.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208333 \nJOSEPH TAYLOR,          \nEMPLOYEE             CLAIMANT \n \nDOLGENCORP., LLC d/b/a \nDOLLAR GENERAL STORE,  \nEMPLOYER                RESPONDENT  \n \nDOLGENCORP., LLC/  \nSEDGWICK CLAIMS MG’T SERVICES, INC., \nINSURANCE CARRIER/TPA             RESPONDENT  \n \n \nOPINION FILED DECEMBER 3, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE DAVID C. JONES, Attorney \nat Law, Little Rock, Arkansas.  \n \nDecision of the Administrative Law Judge: Affirmed in part, reversed in part.  \n \nOPINION AND ORDER \n \n The Claimant appeals an administrative law judge’s opinion filed May \n22, 2025. The administrative law judge found that the Claimant failed to \nmeet his burden of proof in demonstrating that he is permanently and totally \ndisabled as a result of his November 15, 2022, compensable injury(ies), \nthat the Claimant failed to meet his burden of proof in demonstrating he is \n\nTAYLOR – H208333  2 \nentitled to any percentage of wage-loss disability in excess of his 19% body \nas a whole permanent anatomical rating as a result of his subject \nNovember 15, 2022, compensable injury(ies), and that the Claimant’s \nattorney is not entitled to an attorney’s fee based on these facts. After \nreviewing the entire record de novo, the Full Commission finds that \nClaimant is entitled to an additional 10% wage-loss disability benefit as a \nresult of his November 15, 2022, compensable injuries.  \nI. HISTORY \nJoseph Taylor, now age 55, testified that he was a high school \ngraduate. Mr. Taylor testified that his primary fields of employment were \nworking as a cook in various establishments, a night stocker, and a \nwarehouse forklift operator. The Claimant testified that he had obtained a \ncertification as a forklift operator, but that certification has since lapsed. \nClaimant’s last job before working for the Respondent was with the City of \nLittle Rock as a waste management sanitation operator.  \nIn 2013, while working for the City of Little Rock as a waste \nmanagement sanitation operator, Claimant injured his shoulders, wrist and \nhead. Claimant testified: \nA: I was workin’ for the City of Little Rock. (sic.) [I]t was a day \njust like yesterday. (sic.) I was workin’ waste management, \nand it was snowin’ outside. And it’s like, you know, you fall off \ntrucks, you slip and fall in the rain and stuff like that, and like, \nwhen I fell off the truck, I as layin’ flat on my back. I couldn’t \nmove, I couldn’t talk, I couldn't do anything. So it’s like I was \njust layin’ there and the rain was just fallin’ down on me. I \n\nTAYLOR – H208333  3 \ncouldn’t’ even close my eyes, so it’s just like I was there for, \nlike, 20 minutes. And then I was able to get up and I went \nhome. I didn’t think (sic.) anything of it ‘cause I played sports \nall my life, so, you know, I was – I just thought it was just a \nlittle injury and I get over it, go home, rest up and be fine.  \nSo the next day when I woke up, I couldn’t move at all. I \ncouldn’t’ move, I couldn’t talk, so for three days I was stuck in \nmy bed, non-verbal, non-communicative, none of that. So for \nthree days my grandmother set and prayed on me for three \ndays, and I finally came around and she said, “Go to the \ndoctor.” And when I went to the doctor, you know how the \ndoctor give you that look? So once he gave me that look and I \nseen the look that he had given to my grandmother and my \ngreat-grandmother, that look of ‘Okay’. And when he gave me \nthat look it was like my life hasn’t been the same since.  \n*** \nQ: Okay. So you’ve had multiple body parts injured in that \naccident at work; is that correct?  \nA: Correct \n***  \nQ: Okay. Do you recall specifically what body parts were     \ninjured in that fall?  \nA: My shoulders, wrist, head, pretty much everything. \nAs a result of this work accident, Claimant began drawing social \nsecurity disability benefits.  \n On December 27, 2021, Claimant was hired by Respondent as a \ncashier. The Claimant testified that he disclosed his pre-existing physical \nlimitations and restrictions to the Respondent prior to being hired:  \nQ: Now when you applied to work at Dollar General, did you \ntell them about all of these injuries that you’d – \nA: They knew my whole medical history. They knew \neverything. That’s why, when they hired me, they didn’t hire \nme as a stocker ‘cause they know I couldn’t’ do no liftin’. \nThat’s why they put me as a cashier.  \n \n\nTAYLOR – H208333  4 \n On November 15, 2022, Claimant was working for the Respondent. \nClaimant testified that on that date, the following occurred:  \nQ: Okay. Tell us what happened to you on November 15\nth\n, \n2022.  \nA: Okay. On that time, the cash register was down so we \nwasn’t only takin – what was it? We wasn’t takin’ cash – we \nwasn’t takin’ cash, we was takin’ cards only, and that Dollar \nGeneral had been – we had been goin’ through that back and \nforth, like it’d be sometimes we take cards, sometimes we \ntake cash.  \nBut we had a note on the door that said card only, so when \nthe guy walked in I’m like “Hey, guy, you know, how you doin’? \nYou know, card only.” I’m like “Card only. The door says card \nonly, card only.” So he put the money down and I said “Card \nonly. Card only.” And then I gave him his money back.  \n  So he commenced to start cussin’, “I’m gonna take this.”  \nI said, “Well, you can – you can take it but you gotta take it up \nwith Dollar General, but if you take it, don’t come back. I’m not \nfixin’ to fight with you, I’m not fixin’ to argue with you about \nthis. It’s not mine, it’s Dollar General’s but if you take it, don’t \ncome back, ‘cause there’s a camera right there lookin’ at your \nspot.” So then he caught an attitude and I said, “Well, can I \nhave that back since you payin’ – wanna pay with cash?” I \nsaid, “Can we put this back?” \nSo he got mad, and you know like when you – you get in – get \naggressive with somebody you know how you get in your \nstance ‘cause you feel like somebody’s fixin’ to try somethin’ \nto ya? So I got in that stance ‘cause I felt like he was fixin’ to \ndo somethin’ to me, but when I took the stance, my hip \npopped, so therefore I lost my balance and he picked me up \nand slammed me on the ground. \n The parties stipulated that the Claimant sustained admittedly \ncompensable injuries to his face and upper back/thoracic spine. The \nClaimant testified that he had not worked for any employer since the date of \nhis compensable injury. Claimant also testified that his position was \nterminated with the Respondent subsequent to the compensable injury.  \n\nTAYLOR – H208333  5 \nAccording to the record, the Claimant initially treated with Dr. Michael \nDelcastillo-Hegyi on November 17, 2022, who diagnosed Claimant with a \nlumbar transverse process fracture and a closed head injury. Dr. Delcastillo-\nHegyi then referred Claimant to Dr. Wayne Bruffett. Claimant began \ntreatment with Dr. Bruffett on December 12, 2022:  \nJoseph Taylor is a 52 year old male who presents to discuss \nconcerns about their Low Back Pain, Mid Back Pain, that \nbegan on 11/15/2022.  \n \n*** \nX-rays reveal transverse process fractures on the left side in \nthe lumbar spine.  \nHis CT is reviewed he does have fractures L2 L3-L4-L5 on the \nleft the L5 fracture is pretty subtle the other ones are more \nnotable on the axial images  \n \nAn MRI of the Claimant’s lumbar spine was taken on January 13, \n2023, with the following impression:  \n  Mild neural foraminal stenosis on the right at L3-4.  \n The Claimant followed up with Dr. Bruffett on January 23, 2023: \n   \nMr. Taylor has transverse process fractures on the left L2-L3-\nL4 and L5. I recommended an MRI scan. This study does not \nshow any disc herniation or burst fracture. These are isolated \ntransverse process fractures. I think he can be released to \nsome light sedentary office work although he says he was \nfired from his job unfortunately. I will see him back in 6 weeks \nand he will be at maximal medical improvement and I will \ncalculate his impairment rating. He has subjective complaints \nof a vibratory sensation and such. He also has a history of \nfibromyalgia. \n \n On February 22, 2023, Claimant followed up with Dr. Bruffett:  \n \n\nTAYLOR – H208333  6 \nMr. Taylor returns a little over 3 months status post work-\nrelated injury in which [he] sustained transverse process \nfractures L2-L3-L4 and L5. There is no change in his \nexamination today. I would say he is now at a point of \nmaximum medical improvement. Based on the American \nMedical Association guides to the evaluation of permanent \nimpairment fourth edition I would assign him an impairment \nrating of 19% of the whole person. This is based on 5% \ntransverse process fractures x4 using the combined values \nchart. He is released without restrictions. I will see him back \nas needed.  \n \n A pre-hearing order was filed on October 22, 2024. The Claimant \ncontended:  \nThe Claimant contends that on or about November 15, 2022, \nhe sustained admittedly compensable injuries to his face and \nupper back/thoracic spine as a result of a work-related \nassault. On February 22, 2022, Dr. Wayne Bruffett ultimately \nreleased the Claimant with a 19% to the body-as-a-whole \n(BAW) permanent anatomical impairment rating, which the \nRespondents have accepted and paid. The Claimant \ncontends he is PTD as a result of his admittedly compensable \nwork-related injuries or, alternatively, he is entitled to \nsubstantial wage loss disability as a result of his compensable \ninjuries. He further contends his attorney is entitled to the \nmaximum statutory attorney’s fee. [...] \nThe Respondents contended:  \n \nThe Respondents contend they have accepted the Claimant’s \nface and upper back/thoracic spine injury as compensable \nand have paid all appropriate benefits to date, including but \nnot limited to Dr. Bruffett’s 19% BAW impairment rating. The \nRespondents contend the Claimant is not PTD, nor is he \nentitled to any wage loss disability related to his compensable \ninjuries. The Respondents contend that any wage loss \ndisability the Claimant may have sustained is not the “major \ncause” of his overall disability, which the Respondents \ncontend is the result of preexisting conditions. The \nRespondents further contend the Claimant has applied for and \ncurrently is receiving Social Security Disability (SSD) benefits \nand, therefore, pursuant to Ark. Code Ann. Section 11-9-411 \n(Lexis Replacement 2024) they are entitled to a dollar-for-\n\nTAYLOR – H208333  7 \ndollar credit/offset in the amount of any and all group health, \nand/or disability benefits, as well as any and all \nunemployment benefits paid to or on the Claimant’s behalf. \n[...] \nThe parties agreed to litigate the following issues:  \n1. Whether the Claimant is permanently and totally disabled \n(PTD) and, if not, the extent of the Claimant’s wage loss \ndisability, if any.  \n2. Whether and to what extent, if any, the Claimant’s attorney \nis entitled to a controverted fee on these facts.  \nAn administrative law judge filed an opinion on May 22, 2025. The \nadministrative law judge found that the Claimant failed to prove that he is \npermanently and totally disabled, or that he was entitled to any percentage \nof wage loss disability in excess of his permanent anatomical impairment \nrating. The Claimant appeals to the Full Commission.  \nII. ADJUDICATION \nThe wage-loss factor is the extent to which a compensable injury has \naffected the Claimant’s ability to earn a livelihood. Grimes v. North Am. \nFoundry, 316 Ark. 295, 872 S.W.2d 59 (Ark. 1994). Arkansas Code \nAnnotated § 11-9-522(b)(Repl. 2012) provides, in pertinent part:  \n(1) In considering claims for permanent partial disability \nbenefits in excess of the employee’s percentage of \npermanent physical impairment, the Workers’ \nCompensation Commission may take into account, in \naddition to the percentage of permanent physical \nimpairment, such factors as the employee’s age, \neducation, work experience, and other matters reasonably \nexpected to affect his or her future earning capacity.  \n\nTAYLOR – H208333  8 \nSuch other matters are motivation, post injury income, credibility, demeanor, \nand a multitude of other factors.  Glass v. Edens, 233 Ark. 786, 346 S.W.2d \n685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 \n(1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990); \nCross v. Crawford County Memorial Hosp., supra. It is well established that \na claimant’s prior work history and education are factors to be considered in \ndetermining eligibility for wage-loss benefits.  See Cross v. Crawford County \nMemorial Hosp., supra.; Glass v. Edens, supra.; City of Fayetteville v. \nGuess, supra.; Curry v. Franklin Electric, supra. \nAn administrative law judge found in the present matter, “4. The \nClaimant has failed to meet his burden of proof in demonstrating he is \nentitled to any percentage of wage loss disability in excess of his 19% BAW \npermanent anatomical impairment rating as a result of his subject \nNovember 15, 2022, compensable injury(ies). The Full Commission does \nnot affirm this finding.  \nClaimant is a 55-year-old high school graduate. Claimant testified \nthat he worked as a cook in various fast-food establishments, a night \nstocker, and a warehouse forklift operator. Claimant has obtained a \ncertification as a forklift operator, but that certification has since lapsed. \nClaimant testified that the job he had prior to working for Respondents was \n\nTAYLOR – H208333  9 \nwith the City of Little Rock as a waste management sanitation operator \napproximately 13-14 years ago.  \nThe parties stipulated that the Claimant was employed with the \nRespondents on November 15, 2022. The parties stipulated that the \nClaimant sustained compensable injuries on November 15, 2022. The \nrecord shows that the Claimant injured his face and back after an assault.  \nThe Claimant has not returned to work for any employer since the \nstipulated November 15, 2022, compensable injuries. The Claimant treated \nconservatively with Dr. Wayne Bruffett beginning on December 12, 2022. \nDr. Bruffett released the Claimant to full duty without restrictions on \nFebruary 22, 2023. On that same date, Dr. Bruffett placed Claimant at \nmaximum medical improvement with a permanent anatomical impairment \nrating of 19% to the whole person but continued to prescribe multiple \nmedications for pain for Claimant’s admittedly compensable back injuries.  \nThe Claimant’s position with the Respondents was terminated after \nNovember 15, 2022. According to the record, Respondents have not \nprovided any vocational assistance to the Claimant. There is nothing in the \nrecord that shows the Claimant is not interested in returning to appropriate \ngainful employment as required in City of Fayetteville v. Guess, supra. \nHowever, the evidence demonstrates that, as a result of the November 15, \n2022, compensable injuries, the Claimant is physically unable to return to \n\nTAYLOR – H208333  10 \nhis former position as a cashier employee for the Respondents. In \nconsidering the Claimant’s relatively young age of 55, his high school \neducation, the Claimant’s work history, and the 19% whole-body impairment \nrating, the Full Commission finds that the Claimant proved he sustained  \nwage-loss disability in the amount of 10% above his impairment rating of \n19%.  \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the Claimant proved he sustained wage-loss disability in the amount of \n10%. The Claimant proved that the November 15, 2022, compensable \ninjury was the major cause of his 19% anatomical impairment and 10% \nwage-loss disability in accordance with Arkansas Code Annotated § 11-9-\n102(F)(ii)(a)(Repl. 2012). The Claimant’s attorney is entitled to fees for legal \nservices in accordance with Arkansas Code Annotated § 11-9-715(a)(Repl. \n2012). For prevailing in part on appeal, the Claimant’s attorney is entitled to \nan additional fee of five hundred dollars ($500), pursuant to Arkansas Code \nAnnotated § 11-9-715(b)(Repl. 2012).  \nIT IS SO ORDERED. \n \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n\nTAYLOR – H208333  11 \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION      \n I must respectfully dissent from the majority’s finding that the \nclaimant is entitled to wage-loss disability of ten percent (10%) in addition to \nhis nineteen percent (19%) permanent impairment rating. \n When a claimant sustains an injury not scheduled in Ark. Code Ann. \n§ 11-9-521, permanent disability benefits are controlled by Ark. Code Ann. \n§ 11-9-522(b)(1), which states:  \nIn considering claims for \npermanent partial disability \nbenefits in excess of the \nemployee's percentage of \npermanent physical \nimpairment, the Workers' \nCompensation Commission \nmay take into account, in \naddition to the percentage \nof permanent physical \nimpairment, such factors as \nthe employee's age, \neducation, work experience, \nand other matters \nreasonably expected to \naffect his or her future \nearning capacity. \n \n Therefore, when a claimant has been assigned an anatomical \nimpairment rating to the body as a whole, the Commission has the authority \n\nTAYLOR – H208333  12 \nto increase the disability rating, and it can find a claimant permanently \ndisabled based upon wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 \nArk. App. 228, 201 S.W.3d 449 (2005). The wage-loss factor is the extent to \nwhich a compensable injury has affected the claimant's ability to earn a \nlivelihood. Enterprise Products Company v. Leach, 2009 Ark. App. 148, 316 \nS.W.3d 253 (2009).  \n When determining wage-loss disability, the Commission may take \ninto account, in addition to the percentage of permanent physical \nimpairment, such factors as the employee’s age, education, work \nexperience, and other matters reasonably expected to affect his or her \nfuture earning capacity.  Ark. Code Ann. §11-9-522(b)(1). Other factors may \ninclude but are not limited to motivation to return to work, post-injury \nearnings, credibility, and demeanor. Curry v. Franklin Electric, 32 Ark. App. \n168, 798 S.W.2d 130 (1990).  \nOur courts also consider the claimant’s motivation to return to work \nsince lack of interest in pursuing employment impedes the assessment of \nthe claimant's loss of earning capacity. Logan County v. McDonald, 90 Ark. \nApp. 409, 206 S.W.3d 258 (2005). The Commission may use its own \nsuperior knowledge of industrial demands, limitations, and requirements in \nconjunction with the evidence to determine wage-loss disability. Taggart v. \nMid America Packaging, 2009 Ark. App. 335, 308 S.W.3d 643 (2009). \n\nTAYLOR – H208333  13 \n On November 15, 2022, the claimant suffered an admittedly \ncompensable injury to his lumbar spine in a work-related assault. Before \ngoing to work for the respondent employer, the claimant had not worked in \n13 years. The claimant has an extensive history of physical disabilities and \ninjuries to his back, which led to a period of unemployment between 2013 \nor 2014 and 2021, and he received social security benefits for “[p]robably \nlike 13 years” prior to beginning work for the respondent employer in 2021. \nThe claimant suffers from a litany of mental and physical conditions, \ntestifying that he has sought disability for every part of his body and had \nundergone nineteen surgeries prior to his employment with the respondent.  \n After his injury, the claimant was initially treated at the CHI St. \nVincent emergency room and was discharged the same day. He later came \nunder the care of orthopedic surgeon, Wayne Bruffett, M.D. In January \n2023, Dr. Bruffett opined that the claimant could return to light, sedentary \nwork; however, by that point the claimant had been terminated due to a \n“fight situation” at work.” After conservative treatment, Dr. Bruffett released \nthe claimant at maximum medical improvement (MMI) on February 23, \n2023, with a nineteen percent (19%) permanent impairment rating. In the \nclaimant’s return to work note, Dr. Bruffett released the claimant with no \nrestrictions related to his compensable injury. While the claimant testified \nthat he is in a great deal of pain, the record reflects that Dr. Bruffett was \naware of those complaints before he released him to return to work with no \n\nTAYLOR – H208333  14 \nrestrictions. Further, the claimant has not sought any additional medical \ntreatment since he was released at MMI.  \n The claimant is a 55-year-old man with a high school education and \nextensive experience working as a cook, a warehouse associate, a \nconstruction worker, a forklift operator, and a caregiver. Since the time of \nhis injury, the claimant has taken no steps to return to work. At the hearing, \nthe claimant testified that he loved his job with the respondent and would \nhave continued working for them had he not been terminated and testified \nat his deposition that he is able to work.  \n The only evidence indicating that the claimant is currently unable to \nfind work is his own self-serving testimony. The claimant’s treating \nphysician, Wayne Bruffett, M.D. released the claimant with no restrictions \nfrom his compensable injury and there is no medical evidence to rebut Dr. \nBruffett’s findings. The credible evidence overwhelmingly supports that the \nclaimant’s purported inability to find suitable employment, if any, arises from \nhis significant pre-existing conditions and a clear desire to remain out of the \nwork force given his ongoing refusal to seek meaningful employment. \nAccordingly, for the reasons set forth above, I respectfully dissent. \n  \n \n                                                    \n___________________________________ \n                                          MICHAEL R. MAYTON, Commissioner \n\nTAYLOR – H208333  15","textLength":22050,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208333 JOSEPH TAYLOR, EMPLOYEE CLAIMANT DOLGENCORP., LLC d/b/a DOLLAR GENERAL STORE, EMPLOYER RESPONDENT DOLGENCORP., LLC/ SEDGWICK CLAIMS MG’T SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 3, 2025 Upon review before the FULL COMM...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["wrist","back","hip","thoracic","lumbar","fracture"],"fetchedAt":"2026-05-19T22:29:43.934Z"},{"id":"alj-H304579-2025-12-03","awccNumber":"H304579","decisionDate":"2025-12-03","decisionYear":2025,"opinionType":"alj","claimantName":"Glenda Kennedy","employerName":"University Of Arkansas At Pine Bluff","title":"KENNEDY VS. UNIVERSITY OF ARKANSAS AT PINE BLUFF AWCC# H304579 December 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KENNEDY_GLENDA_H304579_20251203.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KENNEDY_GLENDA_H304579_20251203.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H304579  \n \nGLENDA KENNEDY, EMPLOYEE CLAIMANT \n \nUNIVERSITY OF ARKANSAS AT PINE BLUFF,  \nEMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT \n  \n \nOPINION FILED 3 DECEMBER 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 9 October 2025 in Pine Bluff, Arkansas. \n \nMs. Risie Howard appeared on behalf of the claimant. \n \nMr. Robert Montgomery appeared on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n A Prehearing Order was filed on 14 July 2025 and admitted to the record as \nCommission’s Exhibit No 1. For this litigation, and consistent with that Order, the parties \nagreed to the following at the hearing: \nSTIPULATIONS \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n 2. The employee/employer/carrier-TPA relationship existed at all times relevant \n  to this claim. \n \n 3. On 14 February 2023, the claimant allegedly fell while at work. She alleges  \n  that she sustained compensable injuries by specific incident to her right  \n  shoulder, right knee, right wrist, and back. \n \n 4. The applicable average weekly wage would entitle the claimant to the   \n  maximum available weekly benefit amounts of $835 for Temporary Total  \n  Disability (TTD) and $626 for Partial Permanent Disability (PPD). \n \n 5. The respondents have controverted this claim in its entirety. \n \n \n\nG. KENNEDY- H304579 \n2 \n \nISSUES TO BE LITIGATED \n \n1.  Whether the claimant sustained compensable injuries to her right shoulder, \n right knee, right wrist, and/or back by specific incident on 14 February 2023. \n \n 2. Whether the claimant is entitled to reasonable and necessary medical   \n  benefits, including reimbursement for past treatment, mileage, and future  \n  treatment. \n  \n All other issues are reserved. \n \nCONTENTIONS \n \nThe Prehearing Order incorporated the following contentions from the parties’ \nrespective prehearing questionnaire responses: \nClaimant \n The claimant was carrying a box to the back of her classroom when \nshe tripped over an electric socket. She fell against equipment that she \nand her chairperson had asked the University to remove from the \nclassroom. She landed on the floor. Although the claimant may have \nhad preexisting injuries, the “egg-shell plaintiff” rule would apply. “You \ntake your victim as you find her.” Therefore, the employer is liable to \nthe claimant. \n \n Respondent \n \n The claimant alleges that she sustained injuries as the result of \nfalling on February 14, 2023. She contended that she sustained injuries \nto various body parts. The report of injury was investigated by the \nrespondents, and it was determined that the claim did not meet the \nstatutory requirements of a compensable injury. After reviewing \navailable information, the respondents have controverted this claim in \nits entirety. The Claimant’s claim is not supported by objective medical \nfindings of an acute work-related injury.  \n \n The Respondent reserves the right to raise additional contentions, \nor to modify those stated herein, pending the completion of discovery.  \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witness, observing her demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n\nG. KENNEDY- H304579 \n3 \n \n1. The Commission has jurisdiction over this claim. \n \n2. The stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant has failed to prove by a preponderance of the evidence that she \nsuffered any compensable injuries by specific incident on or about 14 \nFebruary 2023. \n \n4. Because the claimant has failed to prove a compensable injury, her claims for \nrelated medical benefits are moot and will not be addressed in this Opinion \n \nADJUDICATION \nThe stipulated facts as outlined above are reasonable and accepted. It is settled that \nthe Commission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \nThe claimant was the only witness. The record consists of the hearing transcript and \nthe following exhibits: Commission’s Exhibit No 1 (the 14 July 2025 Prehearing Order); \nClaimant’s Exhibit No 1 (seven pages of medical records);\n1\n [the record does not include a \n \n1\n Several of the records admitted into the record by the claimant contained her counsel’s \nhand-written notations. “Clean” copies of these records were not made available for \n\nG. KENNEDY- H304579 \n4 \n \nClaimant’s Exhibit No 2] Claimant’s Exhibit No 3 (three photos); Claimant’s Exhibit No 4 (a \none-page report from an MRI of the claimant’s right shoulder); Claimant’s Exhibit No 5 (a \none-page questionnaire prepared by Claimant’s counsel and completed by Stuart Jones, \nDPT); and Respondents’ Exhibit No 1 (one index page and 32 pages of medical records).\n2\n \nHearing Testimony \n The claimant is a 73-year-old professor at the University of Arkansas at Pine Bluff. \nShe testified that she hurt herself when she tripped and fell in a classroom on 14 February \n2023. According to the claimant, she stumbled over some cords and/or an electrical outlet \nand cover on the classroom floor. “I cannot say exactly how I fell, but I found myself on the \nfloor. I was—when—it’s like when I fell, I guess, I twisted and fell against the wall. There \nwas a display monitor there and I, good as I recall, did fall to the right side.” [TR at 50.] \n She claims that as a result of that alleged fall, she suffered compensable injuries to \nher right shoulder, right wrist, right knee, and back. The claimant acknowledged pre-\nexisting conditions and past treatments related to the same injuries that she is claiming as \n \ninclusion in the record. These writings on the records are not considered to carry relevant \nor additional evidentiary value. \n \nThere was confusion on the claimant’s part before the hearing about what exhibits were \nbeing made part of the record. Discussions about this appear in the hearing transcript. The \nclaimant suggested the impression that any materials exchanged with opposing counsel, \nwith copy to the Commission, before the hearing were, essentially, deemed to be admissible \nevidence and admitted to the record before the hearing began. We discussed that, \nconsistent with Ark. Code Ann. § 11-9-705(a)(1), the Commission is not bound by the \ntechnical rules of evidence or procedure; but the Commission is informed by those rules in \nits review of what purported evidence should be admitted to the record and what \nevidentiary weight should be afforded to the same. Towards the end of the proceeding, I \nmade clear to the claimant that only evidence offered and admitted into evidence at the \nhearing would be made part of the evidentiary record: \nJudge: So, Ms. Howard, is there any other documentary evidence that you \nhad exchanged before today that you want to make an exhibit? Because, to be \nvery clear, our record today is based on the transcript of this hearing, the \ntestimony that we’ve gotten from our witness, and then the things that are \naccepted into evidence while we’re here. [TR at 55-56.] \n\nG. KENNEDY- H304579 \n5 \n \ncompensable. She also acknowledged that she continued working after the date of her \nalleged fall. She offered very little testimony about the nature or extent of her alleged \ninjuries and symptoms. Instead, she intended to rely on the few medical records she \nentered into evidence. \nMedical Evidence \n A clinic note shows that on 5 January 2022 (more than a year before the claimant’s \nalleged workplace fall), she was seen by Dr. Eric Gordon. That note provides, in pertinent \npart: \nCHIEF COMPLAINT: Right shoulder pain \n \nHISTORY: Patient is a 69-year-old female who is right hand dominant and \nworks as an educator for UAPB. Patient presents today for evaluation of \nright shoulder pain which has been present since last summer. She is not \ncertain, but she did have a fall where she stumbled forward and landed on \noutstretched upper arms about 2 months prior to the onset of pain. There was \nnot a direct connection but that is the only thing she could think of as a cause \nof her symptoms. Around June 2021 however she stated to have pain in her \nright shoulder that has been a bit worse lately. \nPain is mainly located lateral shoulder. \nPain is described as a moderate aching, throbbing pain. \nThe pain seems to be worse with lifting overhead, pushing, and pulling. \nThe pain is better with relative rest and limited activities. \nTreatment so far has included occasional use of oral anti-inflammatories and \nactivity modifications. \nPatient also reports some difficulty reaching behind her back. \nThe patient was kind enough today to fill out the patient history \nquestionnaire, which was reviewed and is documented in the EMR. \n \nEXAMINATION: ... \nRight shoulder range of motion testing reveals basically full shoulder range of \nmotion except for mild limitation of internal rotation behind her back. She \ndoes have early trapezial activation with active shoulder range of motion but \nmobility otherwise is full. Shoulder does move with some mild intermittent \ncrepitation. Impingement signs are mildly positive... \n \nASSESSMENT: Right shoulder pain likely secondary to rotator cuff tear. \n \nPLAN: Diagnosis and treatment options were discussed with her. Discussed \nthat I suspect she has a rotator cuff tear but fortunately is having only some \nmild to moderate symptoms currently. We will try round of physical therapy \nfor strengthening and see how she responds to that. Follow-up 1 month. \n\nG. KENNEDY- H304579 \n6 \n \n \n[Resp. Ex. No 1.] The claimant returned to clinic on 16 February 2022. The note from that \nvisit includes, in pertinent part: \nPatient returns today for follow-up in regards to her right shoulder. She \nreports overall that physical therapy does seem to be helping with her \nfunction, but she complains of persistent weakness in her shoulder as well as \na constant numb sensation in her hands with is constantly present. She does \ncomplain of occasional neck pain mainly present when she is lying flat. \n \nASSESSMENT: Right shoulder weakness concerning for rotator cuff tear and \nlikely neurologic deficit. \n \n Then, on 27 April 2022, the claimant saw Dr. Edward Saer. She reported abnormal \nfeelings in her fingertips and right leg pain. Recent imaging studies were discussed, and \nshe was assessed with the following: \nCervical stenosis with cord compression at C3-4 and C4-5 with early \nmyelopathy. I had a long talk with her about this. I explained that she is \ngoing to need to have surgery to take the pressure off the spinal cord. If we \nleave this alone she is likely to develop progressive changes. The goal of \nsurgery is to keep that from happening and hopefully she will get some \nimprovement in her symptoms but there is no guarantee of that. \n \n On 8 February 2023, nearly one week before the claimant’s alleged workplace fall, \nthe claimant saw Dr. Michael Cassat at a UAMS Orthopedic Clinic. The note from that visit \nprovides the following: \nHPI: She is a pleasant 70-year-old female who comes today with chronic right \nshoulder pain with loss of motion x2 years after a fall. This has not improved \ndespite physical therapy. She also complains of right low back and lateral hip \ndiscomfort with an antalgic gait. She has no associated sensory change. It is \nnot worse with motion of the hip. \n \nPHYSICAL EXAM: ... Right shoulder with markedly limited range of motion \nin all planes. Strength is preserved with the exception of 4 out of internal \nrotation and 3/5 supraspinatus. Both lower extremities have normal strength, \nsensation, 3+ patellar reflex on the right, 2+ on the left. Straight leg raise is \nnegative. Right hip has full range of motion without reproduction. \n \nX-ray of the right hip shows some cystic change in the femoral head, \npreserved joint space. X-ray of lumbar spine with spondylolisthesis at L4/5, \nmultilevel changes otherwise.  \n\nG. KENNEDY- H304579 \n7 \n \nX-ray of the right shoulder shows a high-riding humeral head consistent with \nrotator cuff arthropathy. \n \nWe will get an MRI of her right shoulder to further evaluate her chondral \nsurface and supraspinatus tear, start physical therapy for her low back. \n \n[Id.] \n \n An MRI report of the right shoulder dated 15 February 2023 includes: \n \nIMPRESSION: \n \n1.  Attenuated supraspinatus tendon with high grade oblique tear of the \nbursal surface fibers anteriorly and interstitial tear extending to the \nmyotendinous junction. Interstitial tear of the infraspinatus tendon \nextending to the myotendinous junction. Mild atrophy of the supraspinatus \nand infraspinatus muscles. \n2.  Moderate acromioclavicular osteoarthritis with lateral downsloping \nacromion with chronic subacromial impingement causing rotator cuff tear as \ndescribed resulting in high riding humeral head. \n3.  Completely torn and retracted biceps tendon with nonvisualization of the \ntendon in the bipetal groove. \n4.  Subscapularis tendinopathy. \n5.  Circumferential degenerative changes of the glenoid labrum. \n \n[Resp. Ex. No 1 at 19; Cl. Ex. No 4.] \n \n A physical therapy evaluation is also dated 15 February 2023. That note includes \nthe following: \nCHIEF COMPLAINT & MECHANISM OF INJURY: Patient presents with \ncomplaints of low back pain. She states that her pain began a couple of years \nago, but has gradually worsened. The right side of her back hurts, but the left \nside is fine. Occasionally, she will feel sharp pain in the R side of her low \nback, and she also has radiating pain down to her knee. Pt reports that \nsometimes just her knee will hurt and not her back. A while ago, she thought \nher pain was getting better and only had stiffness, but then it began to hurt \nworse again. \n \n[Resp. Ex. No 1.] \n \n On 3 April 2023, the claimant returned to the UAMS Orthopedic Clinic reporting a \nworkplace injury. She was seen by Dr. Cassat again. The note from that visit provides, in \npart: \n\nG. KENNEDY- H304579 \n8 \n \nHPI: She returns today for a discussion regarding her work[-]related injury. \nWhen she was seen initially, we were evaluating her for a shoulder injury, \nback pain, hip pain, neck pain. She apparently sustained an injury the day \nbefore her MRI to these same areas, and subsequently reports that her injury \nworsened her symptoms... \n \nASSESSMENT: She is here today to discuss her MRI findings. By my \ninterpretation, she has a partial tear of her rotator cuff, these is some \nassociated atrophy. There is not substantial bony edema or effusion present \nthat I would suspect with a 1-day-old injury. She does have degenerative \nchanges at the AC joint. Her biceps is not visualized in her biceps groove on \nher axial sequences. \n \nWe discussed that I could not completely exclude that her injury occurred \nduring her recent work-related problem, however I cannot say greater than \n50% likelihood that this is the case. She would like to attend physical \ntherapy, I think this is quite reasonable. If she fails then she will need to see \nmy partner to discuss possible surgical intervention. Her only restrictions \nrelated to her job need to be limitations in overhead activity. \n \n[Id. at 21-22.] \n \n Then, on 15 July 2023, the claimant saw Dr. Lawrence O’Malley for a review of her \nhistory and an opinion relating to her claimed work-related shoulder injury. He opined: “I \nbelieve that with a reasonable degree of medical certainty that greater than 51% of the \npatient’s current medical problems are related to her chronic shoulder injury prior to her \nwork injury.” \n[Id. at 26.] \n \n A few days later, on 19 July 2023, the claimant saw Dr. Wayne Bruffett for a review \nof her history and an opinion relating to her claimed work-related back injury. He opined: \n“The cause of her low back pain would be degenerative disc disease and a subtle \ndegenerative spondylolisthesis that was existing [and] symptomatic prior to her fall at \nwork. I would say with a reasonable degree of medical certainty that her low back \nsymptoms and degenerative changes are pre-existing and not related to her fall of February \n14\nth\n.” \n[Id. at 30.] \n\nG. KENNEDY- H304579 \n9 \n \n \n On 28 February 2024, the claimant saw orthopedic surgeon Dr. Jeffrey Hill for a \nnew patient visit. The note from that visit provides, in part: \nCHIEF COMPLAINT: Right shoulder \n \nHISTORY OF PRESENT ILLNESS: Glenda F. Kennedy is a 71 y.o. female \npresenting for evaluation of their right shoulder. She has had some history \ninvolving this shoulder. In February of 2023 she had a fall [while] she was at \nwork. She is a professor at UAPB. She states that prior to this fall she had \nsome occasional pain and discomfort involving the shoulder but nothing \nsignificant. After the fall she had limited motion of the shoulder. She was \nseen by Dr. O’Malley [and] an MRI was completed. She was then referred to \nphysical therapy. She has now had 2 rounds of physical therapy and her last \nround [ended] in October. She has perceived some benefit however has not \nbeen significant. She has not had any injections. She is right-hand dominant. \nShe has medical history of hyperthyroidism. \n \n. . .  \n \nPAST MEDICAL HISTORY: She has a past medical history of Arthritis. \n \n. . .  \n \nREVIEW OF X-RAYS/STUDIES: There is preservation of the glenohumeral \njoint space. There is no inferior humeral head-neck junction osteophyte. \nGlenoid rim osteophytes are not visible. There is subtle superior migration of \nthe humeral head with asymmetric narrowing of the superior glenohumeral \njoint space. There is no acromial osteophyte on scapular Y view. Acromial \nmorphology appears normal. On axillary lateral, the humeral head is \ncentered and the glenoid is without deformity or dysplasia. AC Joint \ndemonstrates no arthritis. There is diffuse mild osteopenia. There are no \nfractures or caseous lesions. \n \nMRI dated February 2023 reviewed. [She] has thinning of the posterior \nsuperior rotator cuff insertions with partial-thickness tearing. Tendinopathy \nof the upper border of the subscapularis. This tendon is not visualized within \nthe groove. Penny degeneration noted within the subscapularis, \nsupraspinatus, infraspinatus. \n \nIMPRESSION/DIAGNOSIS: Glenda F. Kennedy is a 71 y.o. female with right \nrotator cuff deficiency. \n \nTREATMENT PLAN: Long discussion with the patient regarding her \ndiagnosis and treatment options. She feels that she has seen small benefits \nwith therapy once like [sic] to continue this. We did discuss that this is \nreasonable. We did discuss that rotator cuff repair at her age and chronicity \nmay be difficult to have a good outcome. She may end up needing a reverse \n\nG. KENNEDY- H304579 \n10 \n \ntotal shoulder arthroplasty. If she decides that therapy is not providing any \nbenefit [...] then she will call us, we would obtain an MRI to better \ncharacterize the status of her rotator cuff. This would help us decide which \nsurgical option would be best for her. \n \n An Attending’s Addendum to the note offers some additional details: \n \n... MRI of the right shoulder from 2/15/23 was reviewed. These images are of \nsuboptimal quality. This shows significant thinning of the posterior superior \nrotator cuff insertion with areas of high-grade partial-thickness tearing and \nsome full-thickness tearing of the anterior crescent/cable. There is bony \nedema in the acromion from humeral head abutment. The subscapularis \ntendon is not visualized in the groove. There is diffuse chondrosis without \nany clear full-thickness chondral defects. There is moderate-severe AC joint \narthrosis. On T1 parasagittal images there is mild atrophy of the upper \nsubscapularis, supraspinatus, and infraspinatus. Fatty degeneration grade 1-\n2 for the subscapularis, grade 1 for the supraspinatus, grade 1-2 for the \ninfraspinatus. Teres minor appears healthy. \n \n[Cl. Ex. No 1.] \n  \n Claimant’s counsel submitted three letters to providers seeking opinions on the \nrelatedness of the claimant’s general “injuries” (the letter was not specific to any particular \ndiagnosis or symptom(s)) and her alleged workplace fall. Drs. Michael Cassat and Jeffery \nHill declined to provide an opinion establishing causation. Stuart Jones, PT, DPT, returned \nthe letter indicating that he believed that there was causal relationship “Based on \nsubjective and objective measurements taken/obtained during initial physical therapy \nevaluation dated 3/14/24.” \n[Resp. Ex. No 1 at 31, 32; Cl. Ex. No 5.] \n \nDISCUSSION \n The claimant alleges that her injuries occurred by specific incident on 14 February \n2023. She must establish four (4) factors by a preponderance of the evidence to prove a \nspecific incident injury: (1) an injury occurred that arose out of and in the course of her \nemployment; (2) the injury caused internal or external harm to the body that required \nmedical services or resulted in disability or death; (3) the injury is established by medical \n\nG. KENNEDY- H304579 \n11 \n \nevidence supported by objective findings, which are those findings which cannot come under \nthe voluntary control of the patient; and (4) the injury was caused by a specific incident and \nis identifiable by time and place of occurrence. Mikel v. Engineered Specialty Plastics, 56 \nArk. App. 126, 938 S.W.2d 876 (1997). If a claimant fails to establish by a preponderance of \nthe evidence any of the above elements, compensation must be denied. Id. As explained \nbelow, the claimant has failed to prove by a preponderance of the evidence that she suffered \nany compensable injury. \n The record simply lacks evidence that the claimant sustained compensable injuries \nto her right knee, right wrist, or her back. She did not testify about these alleged injuries; \nnor did she present objective findings to support these alleged injuries. The record evidence \nshows that any complaints about back pain are attributable to degenerative conditions. In \nthe absence of any record evidence that she suffered compensable injuries to her right knee, \nright wrist, and her back, her claims for the same must fail. \n The claimant was reluctant to testify at all. Respondents’ counsel solicited the \nslightest amount of testimony about the claimant’s alleged right shoulder injury; and in so \ndoing, the claimant essentially acknowledged that she was having problems with her right \nshoulder before the date of her alleged fall. The medical records in evidence clearly \nestablish that the claimant had a history of right shoulder complaints predating her alleged \nfall. As early as January of 2022, she was being seen for complaints of right shoulder pain, \nand she participated in conservative treatment for the same. She only happened to have an \nMRI study the day after her alleged fall because it had been scheduled at a clinic \nappointment before her alleged fall. The X-ray imaging obtained during that appointment \nshowed irregularity that was most likely attributable to rotator cuff degeneration and/or a \ntear. The MRI scan then confirmed a rotator cuff tear and other degenerative changes.  \n\nG. KENNEDY- H304579 \n12 \n \n The medical records address the alleged fall having no likely involvement in her \nshoulder complaints. Dr. Cassat explained, “There is not substantial bony edema or effusion \npresent that I would suspect with a 1-day-old injury. She does have degenerative changes \nat the AC joint.” He went on to decline to relate her alleged fall to the findings from the \nimaging. Dr. Hall also declined to suggest any relation between the two. I find these \nopinions and the other records clearly indicating symptomology relating to preexisting \nconditions credible. The Commission is authorized to accept or reject a medical opinion and \nis authorized to determine its medical soundness and probative value. Poulan Weed Eater v. \nMarshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). Subsequent records show that Drs. \nBruffett and O’Malley found that the claimant had preexisting complaints and degenerative \nconditions that were not related to her alleged fall. While the record includes a letter from a \nphysical therapist that appears to relate her complaints to the alleged fall, I find it to be \ninconsistent with the weight of the persuasive evidence to the contrary and not credible.  \n Accordingly, the claimant has failed to prove by a preponderance of the evidence \nthat she sustained any compensable injury by specific incident on 14 February 2023. Her \nclaims for benefits are therefore moot and are not otherwise being addressed in this \nOpinion.  \nCONCLUSION \n The claimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable injury by specific incident. Accordingly, this claim for initial \nbenefits is DENIED and DISMISSED. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":25826,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304579 GLENDA KENNEDY, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS AT PINE BLUFF, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED 3 DECEMBER 2025 Heard before Arkansas Workers’ Compensation Commission Administrative L...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["shoulder","knee","wrist","back","rotator cuff","neck","cervical","hip"],"fetchedAt":"2026-05-19T22:33:16.179Z"},{"id":"alj-H501007-2025-12-03","awccNumber":"H501007","decisionDate":"2025-12-03","decisionYear":2025,"opinionType":"alj","claimantName":"Ieshia Webster","employerName":"Rockline Industries","title":"WEBSTER VS. ROCKLINE INDUSTRIES AWCC# H501007 December 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WEBSTER_IESHIA_H501007_20251203.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WEBSTER_IESHIA_H501007_20251203.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H501007 \n \nIESHIA WEBSTER, Employee CLAIMANT \n \nROCKLINE INDUSTRIES, Employer RESPONDENT \n \nTRANSPORTATION INS. CO., Carrier RESPONDENT \n \n \n \n OPINION FILED DEEMBER 3, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On February  14,  2025,  the  claimant  filed  an  AR-C  requesting  various  compensation \nbenefits  in  which she alleges an  injury to her left  hand on  or  about March  27,  2023.  There  has \nbeen no request for a hearing and no further action was taken in this claim. \nOn August 20, 2025, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. A hearing was scheduled for November 4, 2025. Notice of \nthat hearing was sent to the claimant by certified mail, return receipt requested on September 26, \n2025.  That  certified  mail  notice  was  returned  to  the  Commission  by  the  Post  Office  with  a \nnotation “Return to Sender. Unclaimed. Unable to Forward.” \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After a review of the \n\nWebster – H501007 \n \n-2- \nrespondents’ Motion to Dismiss, the claimant’s lack of desire to pursue her claim, and her failure \nto appear at the scheduled hearing, as well as all other matters properly before the Commission, I \nfind  that  claimant  has  failed  to  prosecute  this  claim.  Therefore,  this  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2092,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H501007 IESHIA WEBSTER, Employee CLAIMANT ROCKLINE INDUSTRIES, Employer RESPONDENT TRANSPORTATION INS. CO., Carrier RESPONDENT OPINION FILED DEEMBER 3, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Cla...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:18.245Z"},{"id":"alj-H109911-2025-12-02","awccNumber":"H109911","decisionDate":"2025-12-02","decisionYear":2025,"opinionType":"alj","claimantName":"Trenton Cole","employerName":"Southern Tire Mart LLC","title":"COLE VS. SOUTHERN TIRE MART LLC AWCC# H109911 & H407455 December 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/COLE_TRENTON_H109911H407455_20251202.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COLE_TRENTON_H109911H407455_20251202.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H109911 & H407455 \n \nTRENTON COLE, EMPLOYEE CLAIMANT \n \nSOUTHERN TIRE MART LLC, EMPLOYER RESPONDENT  \n \nTRAVELERS INDEMNITY COMPANY, CARRIER/TPA RESPONDENT #1 \n \nTHE HARTFORD           RESPONDENT #2 \n              \n OPINION FILED DECEMBER 2, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondent #1 is represented by GUY A. WADE, Attorney, Little Rock, Arkansas. \n \nRespondent #2 is represented by RANDY MURPHY, Attorney, Little Rock. Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On September 8,  2025,  the  above  captioned  claim  came  on  for a hearing  at Fort  Smith, \nArkansas.  A pre-hearing conference was conducted on March 13, 2025, and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2   The employee/employer/carrier relationship existed on December 8, 2021, and April 12, \n2024. \n3   Claimant sustained a compensable injury on December 8, 2021. \n \n\nCole-H109911 & H407455 \n2 \n \n \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1 Did claimant suffer a new injury/aggravation or a recurrence on April 12, 2024. \nAll other issues are reserved by the parties. \nThe  claimant  contends  that “His ongoing need for treatment is due to the effects of his \nDecember 8, 2021, injury.  The April 12, 2024, incident was simply a recurrence of symptoms arising \nout of his December 8, 2021, injury and not a new injury.  The respondents have controverted his \nentitlement to additional compensation, including medical treatment, regarding his December 8, 2021, \ncompensable injury.  The claimant contends that he is entitled to medical mileage reimbursement that \nremains unpaid.” \nRespondent #1 contends that “Respondent, Travelers contends that the original injury was \naccepted with applicable benefits paid.  Claimant was released and returned to work and sustained a \nnew injury almost two years after his release.  Respondent Travelers did not provide workers’ \ncompensation  coverage  on  April  12,  2024, and  they  are  NOT  responsible  for  benefits  for  the \nsubsequent injury.  Claimant’s benefits are being paid for the subsequent April 2024 injury and \ntherefore have not been controverted by any party, regardless of responsible carrier.”  \nRespondent  #2  contends that “Claimant did not sustain a new injury or an aggravation on \nApril 12, 2024.  Respondents contend that the claimant’s knee problems and alleged injury of April \n12, 2024, were a continuation or recurrence of injuries on December 8, 2021.”  \n           From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n\nCole-H109911 & H407455 \n3 \n \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on March \n13, 2025, and contained in a pre-hearing order filed on that same date are hereby accepted as fact. \n 2.  The evidence preponderates that claimant's compensable left knee injury of April 12, 2024, \nwas a recurrence, not an aggravation; said injury is the responsibility of Respondent No. 1, Travelers. \n \nHEARING TESTIMONY \n \n \n Claimant was the only witness to testify for any party.  He related how he was injured in 2021, \nwhich was accepted as a compensable injury to his left knee. Dr. Tom Coker performed surgery on \nhis left knee and has followed claimant’s treatment since that surgery.  Claimant said his knee has had \nissues which he termed “going out” and which he further explained was his knee would twist out of \nsocket and cause him to fall. \n On April 12, 2024, claimant was trying to ease back into work to see what he was capable of \nperforming at his job.  He was putting a tire on a vehicle; after removing the first one and putting the \nsecond one on, he said his left knee folded, causing him to fall to the floor.  His boss told him he \ncould  go  home  for  the day, but claimant  later  explained  that  he  was  told  that  he  had  to  go  to  the \nOccupational Medicine Clinic to take a drug test.  He said that this was similar to what had happened \nto him multiple times since his surgery.  Claimant did not believe that he had sustained a new injury \nto his knee and that it does not do anything different after the April 12, 2024, incident than it was \nafter his surgery. \n On cross-examination, Mr. Wade cross-examined claimant on behalf of respondent Travelers \nIndemnity Company.    Claimant agreed that his impairment rating after the surgery by Dr. Coker had \n\nCole-H109911 & H407455 \n4 \n \n \nbeen accepted and paid and his medical expenses had been paid for follow up visits.  Claimant testified \nthat he is working the same number of hours that he worked before the December 2021 accident.  \nWhen he returned to work, claimant was doing counter sales and making tickets, keeping up with the \nbooks, and things of that nature.  In September 2023, Dr. Coker said that claimant could increase his \nactivity and on April 12, 2024, he was in the shop working away from the desk. \n After seeing Dr. Ian Cheyne at Mercy Occupational Medicine, he was then seen by Dr. Coker.  \nClaimant agreed that he had not received any treatment for his knee between September 11, 2023, and \nApril 12, 2024.  Claimant said that his incident report on April 12, 2024, was correct “was guiding a \nsuper single tire on wheel and putting on first bead and weight of right leg when first bead went and \npivoted to left and knee gave out.”  Claimant agreed that the way he pivoted on April 12, 2024, made \nthe  pain  worse than it  had  been  before.    Claimant  stated  that  he  did  not  see  Dr.  Owen  Kelly  in \nRussellville for an examination or evaluation on his left knee.   \n On cross-examination by Mr. Murphy for respondent #2, The Hartford, claimant agreed that \na  subluxation  of  his  knee  is  what  he  calls “folding,” which happened many  times  before  April  12, \n2024.  He said his subluxation continued from his knee injury in 2021, and that he had not had a new \ninjury  at  any  point  since  December  8,  2021.    Claimant  believes  all  of  his  problems  relate  to  his \nDecember 8, 2021, injury.  He agreed with Dr. Kelly’s assessment, “Mr. Cole’s April 12, 2024, incident \nappears to be just a recurrence/continuation of his previous 2021, injury and would not be deemed a \nnew injury.”     \n On redirect-examination, claimant said his knee had gone out nine or ten times between the \nDecember 8, 2021, injury and the April 12, 2024, incident.  He described it as being sore and swollen \nfor  a  little  while  but  nothing  that  happened  on  April  12,  2024,  had not already  been  happening.  \nClaimant said that in this instance, he was sent to the doctor.  Claimant said that he was not lifting \n\nCole-H109911 & H407455 \n5 \n \n \nanything unusual at the time of the April 12, 2024, incident nor did he trip or fall.  He said there was \nnothing different about that incident than the other times that his knee gave out on him before April \n12, 2024.   \n On recross-examination, by Mr. Wade, claimant said he had been back to Dr. Coker on other \noccasions due to his knee folding.  Claimant said that on April 12, 2024, he was pivoting when the \nknee went out.  Since April 12, 2024, his knee has not folded or given him more difficulty than before \nthat date. \n On  recross-examination,  by  Mr.  Murphy, claimant  said  that  when  his  knee  folds,  he \nexperiences some pain and has some minor swelling or tenderness, but it goes away.  He said that is \nwhat happened after the April 12, 2024, incident. \n On redirect-examination, by Mr. Walker, claimant related that the company has a policy that \nif any incident occurs at work that an incident report was to be filled out.  Claimant did not ask to go \nto the doctor on April 12, 2024; he left the premises and then was called and told he had to take a \ndrug test.  He again related that the collapsing of his knee on April 12, 2024, was no different than \nother occasions when the knee had collapsed before that date.   \n On recross-examination, claimant said that when he was told he needed to see a doctor on \nApril 12, 2025, he asked to go see Dr. Coker, but he was sent to Mercy Occupational to take a drug \ntest.   \nREVIEW OF THE EXHIBITS \n \n In addition  to the  prehearing  order  discussed above,  the  exhibits admitted  into  evidence  in \nthis case were Claimant’s Exhibit #1, consisting  of  two  index  pages  and  fifty-six  numbered  pages \nthereafter; Claimant’s Exhibit #2, consisting of one index page and three pages of letters to respondent \n#1 attorney; Respondent #1 Exhibit #1, consisting of three index pages and one hundred twenty-\n\nCole-H109911 & H407455 \n6 \n \n \nthree numbered pages of medical records; Respondent #1 Exhibit #2 the incident report for the April \n12, 2024; Respondent #2 Exhibit #1 consisting of one index page and twenty-six pages of medical \nrecords. \n Reviewing the medical records in chronological order, the records that predate the April 12, \n2024, incident showed that claimant suffered a dislocated left patella with collateral ligament damage.  \nClaimant underwent arthroscopic knee surgery on February 8, 2022.  Dr. Coker referred claimant for \na functional capacity evaluation (FCE) which was performed on May 25, 2022.  Claimant put forth a \nreliable effort and based on that evaluation, Dr. Coker released him to work at a “sit down position,” \nbut  claimant could  carry pursuant  to the  findings  of  the  FCE,  which  demonstrated  claimant  could \nwork at the heavy classification of work.  Dr. Coker did state that claimant should not be climbing \nstairs  nor performing  full  squats.    A  12%  permanent  impairment  rating  was  assessed,  which \nrespondent #1 accepted and paid. \n When Dr. Coker saw claimant on March 3, 2023, claimant reported “he feels like the patella \nis unstable and gives occasionally, this is when he gets tired is when he has to flex.”\n1\n  Dr. Coker sent \nclaimant  for  a  second  FCE,  which  was  performed  on  May  1,  2023.    Claimant  again  put  forth  a \nconsistent effort, but the result of this evaluation was that claimant’s impairment now placed him in \nthe medium classification of work.  Dr. Coker said that claimant’s permanent restrictions would now \nbe  occasional  lifting once  or  twice  a  day  over  sixty  pounds  with  frequent  lifting  up  to  twenty-five \npounds.  He stated that claimant could do “more physical activity and build strength up but I think \nthese limitations on how much weight and how often he should lift are probably permanent.”  His \n \n1\n Dr. Coker’s notes have several incomplete sentences and missing punctuation; I recognize the records are mainly \nfor his benefit, and errors in the transcription of his dictation are of little consequence to him in rendering care to his \npatients. Instead of correcting those entries to what I believe was meant, I am reproducing what is contained in the \nrecords as is.  The incorrect date of injury mentioned twice in Dr. Coker’s report is left as he wrote it.  \n\nCole-H109911 & H407455 \n7 \n \n \nassessment status was “post  patella  dislocation  with loose body  and  now  some  post  traumatic \npatellofemoral chondromalacia.” \n Claimant again saw Dr. Coker on September 11, 2023, but no office chart for that day was \nsubmitted, only a return to work note for claimant to return on September 13, 2023. \n    As mentioned in claimant’s testimony, he went to Mercy Clinic Occupational Medicine on \nApril 12, 2024.  Dr. Cheyne’s diagnosis was that claimant had a sprain of an unspecified collateral \nligament of his left knee and a recurrent subluxation of patella, left knee.  Dr. Cheyne released claimant \nto return to work on April 13, 2024, to sedentary duty.  Claimant was referred for an MRI on his left \nknee by Dr. Cheyne which was performed on April 28, 2024.  The findings were:  \n“Compared  with  a  3  January  2022.    There  is  again  noted lateral  patella \nsubluxation in relation to the trochlear notch.  The retinaculum appears to be \nintact.  The cruciate and collateral ligaments are intact as well as distal patellar \ntendon  complex and  quadrisects  tendon.    Small  amounts  of  joint  fluid.    No \nmeniscal tear or definite joint body.” \n \nThe impression was: “mild collateral patellar subluxation.  Small amount of joint fluid.  No \nother internal derangement \nClaimant  saw Dr.  Coker  again  on  April  30,  2024.  His  notes  for  the  physical  exam  were  as \nfollows: \n“All this was discussed with him and understood.  Exam  until  loose  body  is \nextension full flexion is got patellofemoral grinding he stable varus valgus ACL \nPLC.  He has a very hypermobile patella significant trochlear grove genu valgus \nknee.  Reviewed his MRI and x-rays do not appreciate a true loose body I think \nhe has calcifications in his medial retinaculum and his will unless he locks think \nI can help him with the scope so continue to leg work but more sedentary job \nwe discuss the fact sleeves do not work for size PT he can do at home he knows \nwell and return some APRN.” \n \n The  assessment  plan  was “diagnosed patella subluxation  recurrent  secondary  to  on-the-job \ninjury and at this point he can be limited to a sedentary type job, desk type job, return to see me yearly \n\nCole-H109911 & H407455 \n8 \n \n \nif that is what it takes to continue to evaluate his knees over time.”  After seeing claimant on June 10, \n2024, Dr. Coker noted that claimant was “stiffening up but he does have crepitus” and recommended \nthat claimant should do desk type work rather than squatting and kneeling. \n Dr. Coker saw claimant on October 29, 2024. This note contains the following sentence: “He \nreinjured his knee in April, but I believe that was an aggravation of a preexisting condition.  His initial \ninjury was back in February 2022. [sic]” \n Respondent #2 submitted a record review from, Dr. Owen Kelly, an orthopedic surgeon.  Dr. \nKelly did not conduct a physical examination of claimant rather expressed his opinion based on the \nrecords that he reviewed.  Dr. Kelly’s conclusions were: \n “Mr.  Cole  had  a  previous  patellar  dislocation that required  arthroscopic \nintervention.  The MRI that was performed on April 28, 2024, does not show \nevidence of any acute abnormality or injury.  The findings were consistent with \na chronic condition.  Mr. Cole’s April 12, 2024, incident appears to be just a \nrecurrence/continuation of his previous 2021 injury and would not be deemed \na new injury.  This is confirmed by the imaging and the treating physician.”   \n  \nADJUDICATION \n \n The parties did not dispute claimant had an incident involving his left knee at work on April \n12,  2024.   The  question  before me is whether  the  April  12,  2024, incident  constituted  a  new \ncompensable injury (making Hartford liable) or a recurrence of the December 8, 2021, injury (leaving \nTravelers  liable).  After  reviewing  all  the  evidence,  I  find  that  the  April  12,  2024, incident  was  a \nrecurrence of the prior injury. \nTo determine whether a subsequent episode is an aggravation or a recurrence has taken place, \nthe test is whether the subsequent episode was a natural and probable result of the first injury or if it \nwas precipitated by an independent intervening cause. Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, \n969 S.W.2d 677 (1998) (citing Bearden Lumber Co. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (1983)). If a \n\nCole-H109911 & H407455 \n9 \n \n \ncausal  connection  between  the  primary  and  subsequent  disability  exists,  there  is  no  independent \nintervening cause unless the subsequent disability is triggered by activity on the part of the claimant \nthat is unreasonable under the circumstances. Guidry v. J&R Eads Const. Co., 11 Ark. App. 219, 669 \nS.W.2d 483 (1984). \nTravelers understandably puts much emphasis on one sentence in Dr. Coker’s October 29, \n2024, report. “At the last visit provided in the record, he [Dr. Coker] determined the claimant’s April \n2024 accident was an ‘aggravation of a pre-existing condition.’” (Travelers’ brief, page 5; bold in \noriginal.) That, however, was not all Dr. Coker said.  The complete portion of that entry reads: “He \nreinjured his knee in April, but I believe that was an aggravation of a preexisting condition.  His initial \ninjury was back in February 2022. [sic]” My reading of what Dr. Coker entered on his chart is that \nwhich he  was treating related  back  to  the original injury.  The word “aggravation” has a particular \nmeaning in workers’ compensation law, but doctors often use \"aggravation\" to mean a previous injury \nworsened or  flared  up - not  in  the  legal  sense  of  an  independent  compensable  injury  creating  new \nliability.  The Commission need not base a decision on how the medical profession may characterize \na given condition, but rather primarily on factors germane to the purposes of workers' compensation \nlaw. Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). See also Curry v. Franklin \nElectric, 32  Ark.  App.  168, 798  S.W.2d  130 (1990)  where  the treating  physician used  the  words \n“aggravation” and “recurrence” interchangeably.   I  also  note  that both  Dr.  Coker  and  Dr. Cheyne \nrecorded that claimant has a recurrent subluxation of his patella. \n Moving from the semantics of the medical records, this case is unusual in that the claimant \ndid  not  attempt  to  prove  he met  the requirement  for a  compensable  injury  on  April  12,  2024,  but \nTravelers did to so prove. It is then necessary that I determine, based on the preponderance of all the \nevidence, whether the subsequent incident was an independent compensable injury or a recurrence of \n\nCole-H109911 & H407455 \n10 \n \n \nthe prior injury. In that regard, it is similar to Curry, which also saw the carriers disputing whether the \nclaimant has suffered an aggravation or a recurrence, and thus, which one would be responsible for a \nsecond injury to the injured worker.   \n An aggravation  is  a  new  injury, Maverick  Transp.  v.  Buzzard,  69  Ark.  App.  128,  10  S.W.3d \n467(2000). As such, claimant would have to establish by a preponderance of the evidence (1) an injury \narising out of and in the course of employment; (2) the injury caused internal or external harm to the \nbody which required medical services or resulted in disability or death; (3) medical evidence supported \nby  objective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific  incident \nidentifiable by time and place of occurrence.  Claimant declined to do so; instead, Travelers took on \nthe task of trying to establish that claimant met these requirements.   \n There was no question that claimant was at his place of employment on April 12, 2024, when \nhe pivoted and suffered a subluxation of his left knee, thus establishing the first and fourth elements. \nAs for the second element, claimant did not believe the injury required medical services; he was on \nhis  way  home  when  his  employer  directed  him  to a  medical  facility  for  a  drug  test  as  part  of  the \nemployer’s policy. Therefore, the second element is questionable; claimant may not have required any \nmedical attention before returning to work the next day. However, since claimant continued to see \nDr. Cheyne and then Dr. Coker, I will not stop the analysis here and look at what the objective findings \nrevealed.    \nThe swelling and joint fluid are objective findings that establish an injury exists to the knee. \nBut  in  the  context  of  an  aggravation or recurrence  dispute,  the  critical  question  is  whether  those \nobjective findings establish a new injury or whether they simply reflect a manifestation of the existing \nDecember 8, 2021, injury.  Viewing the evidence as a whole, the objective findings are consistent with \nanother symptomatic episode of the compensable knee injury of December 8, 2021.  Claimant credibly \n\nCole-H109911 & H407455 \n11 \n \n \ntestified that each of the prior subluxation episodes caused pain and swelling. The MRI showed no \nacute or new findings. Dr. Coker noted the loose bodies were 'small little debris from his first injury' \nand described the condition as 'recurrent subluxation' that would likely continue on a chronic basis. \nTaken as a whole, the objective findings establish the existence and continuation of  the December \n2021 injury, not the occurrence of a new compensable injury in April 2024.    \nORDER \n \n Respondent Travelers is directed to pay/furnish benefits in accordance with the findings of \nfact and conclusions of law set forth above. \n Pursuant to A.C.A § 11-9-715(a)(1)(B)(ii), attorneys fees are awarded \"only on the amount of \ncompensation for indemnity benefits controverted and awarded.\" In this case, there was no claim that \nindemnity  benefits  have  been  controverted  up  to  the  date  of  hearing,  and  as  all  issues  other  than \nmedical benefits were reserved, no attorney's fee can be awarded in this matter at this time. Claimant's \nattorney is free to voluntarily contract with medical provider pursuant to A.C.A. § 11-9-715(a)(4). \n Respondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $ 381.11. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":22243,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109911 & H407455 TRENTON COLE, EMPLOYEE CLAIMANT SOUTHERN TIRE MART LLC, EMPLOYER RESPONDENT TRAVELERS INDEMNITY COMPANY, CARRIER/TPA RESPONDENT #1 THE HARTFORD RESPONDENT #2 OPINION FILED DECEMBER 2, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. ...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["knee","back","sprain"],"fetchedAt":"2026-05-19T22:33:12.023Z"},{"id":"alj-H501995-2025-12-02","awccNumber":"H501995","decisionDate":"2025-12-02","decisionYear":2025,"opinionType":"alj","claimantName":"Raalf Rodriguez","employerName":"Romi Construction","title":"RODRIGUEZ VS. ROMI CONSTRUCTION AWCC# H501995 December 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RODRIGUEZ_RAALF_H501995_20251202.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RODRIGUEZ_RAALF_H501995_20251202.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H501995 \n \nRAALF A. RODRIGUEZ, EMPLOYEE   CLAIMANT \n \nROMI CONSTRUCTION, UNINSURED EMPLOYER RESPONDENT \n \n \nOPINION/ORDER FILED DECEMBER 2, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is unrepresented and did not appear at the hearing. \n \nRespondents are represented by JOSEPH H. PURVIS, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On April  1,  2025,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on March  13, \n2025.   Claimant was represented at the time by Matthew J. Ketcham. Mr. Ketcham filed a Motion to \nWithdraw  on October  8,  2025, and  was  allowed  to  withdraw  on October  30,  2025.  Mr.  Ketcham \nlearned  that his  client  had  been  deported  from  the  United  States  by  Immigration  and  Custom \nEnforcement, and therefore would not be able to pursue this claim.   \nOn October 13, 2025, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time.   A hearing on respondent’s Motion to Dismiss was scheduled for \nNovember 21, 2025.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was returned unclaimed on October 16, 2025.   \nClaimant  did  not  respond  to respondent’s motion and did not appear in person at the hearing on \nNovember 21, 2025.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nRodriguez-H501995 \n \n2 \n \nhearing has been made in this file.  After my review of respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby  is  granted.    This  dismissal  is  pursuant  to  Commission 11  C.A.R. § 25-110(d) (formerly \nCommission Rule 099.13) and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2359,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H501995 RAALF A. RODRIGUEZ, EMPLOYEE CLAIMANT ROMI CONSTRUCTION, UNINSURED EMPLOYER RESPONDENT OPINION/ORDER FILED DECEMBER 2, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington County, Arkansas. Claimant is unrepresented...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:33:14.094Z"},{"id":"alj-H401589-2025-11-26","awccNumber":"H401589","decisionDate":"2025-11-26","decisionYear":2025,"opinionType":"alj","claimantName":"Becky Keeter","employerName":"Clay Maxey Chevrolet Cadillac","title":"KEETER VS. CLAY MAXEY CHEVROLET CADILLAC AWCC# H401589 November 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KEETER_BECKY_H401589_20251126.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KEETER_BECKY_H401589_20251126.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H401589 \n \nBECKY L. KEETER, EMPLOYEE      CLAIMANT \n \nCLAY MAXEY CHEVROLET CADILLAC, \nEMPLOYER               RESPONDENT \n \nCENTRAL ARK. AUTO DEALERS SIF/ \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA           RESPONDENT \n \nOPINION AND ORDER FILED NOVEMBER 26, 2025 \nThe Hearing before Administrative Law Judge James D. Kennedy in Mountain \nHome, Arkansas, was held on October 19, 2025. \nClaimant waived her appearance. \nRespondents were represented by Melissa Wood, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 19\nth\n day of November, 2025, \nin Mountain Home, Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute \npursuant  to 11  CAR  25–110(d),  previously  known  as Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Commission. The claimant  was represented  by  Dan  Wren  of \nLittle Rock, Arkansas, who waived Claimant’s appearance by a Response to the Motion \nto Dismiss filed on November 12, 2025, that provided that the Respondents have agreed \nto  provided  additional  medical  treatment  for  the  Claimant,  and  that  consequently,  the \nClaimant  has  no  objection  to  the  Dismissal  of  the  AR-C. The Respondents  were \nrepresented by Melissa Wood of Little Rock, Arkansas.   \n \n\nKEETER – H401589 \n2 \n \n Previously, a full hearing had been held in this matter on December 18, 2024, and \nan  Opinion  had  been  filed  on  February  5,  2025,  which  provided  that  the Claimant  had \nsuffered a compensable injury to her back, but had failed to satisfy the required burden \nof proof to prove by a preponderance of the evidence that she was entitled to temporary \ntotal disability and that the issue of “termination of cause” was not barred by collateral \nestoppel.  The opinion was adopted by the Full Commission on July 2, 2025. The Motion \nto  Dismiss  was  filed  on November  12,  2025,  and contended that the Claimant’s lower \nback injury sustained on September1, 2023, was accepted as compensable, and that all \nappropriate benefits were being paid. Pursuant to 11 CAR 25–110(d), which provides that \nupon application by either party for a dismissal for failure to prosecute, the Commission \nmay,  after  reasonable  notice  to  all  parties,  enter  an  order  dismissing  the  claim. The \nClaimant, through her attorney, filed a response to the Motion to Dismiss stating that she \nhad no objection to the dismissal of the AR-C.   \n After  proper  notice and  a  response  by  the  Claimant  stating  that  she  had  no \nobjection to the dismissal of the AR-C, and after waiving her appearance, a hearing was \nheld  on November  19, 2025, in  Mountain  Home  Arkansas. The Respondents  were \nrepresented by Melissa Wood at the hearing, who requested that the matter be dismissed \npursuant  to 11  C.A.R.  110(d)  of  the rules  of  the Arkansas  Workers’  Compensation \nCommission. \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \n\nKEETER – H401589 \n3 \n \nthe Motion to Dismiss without prejudice pursuant to 11 C.A.R. 25-110(d) of the Arkansas \nWorkers’ Compensation Commission.   \n  \n                \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":3422,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401589 BECKY L. KEETER, EMPLOYEE CLAIMANT CLAY MAXEY CHEVROLET CADILLAC, EMPLOYER RESPONDENT CENTRAL ARK. AUTO DEALERS SIF/ RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED NOVEMBER 26, 2025 The Hearing before Administrat...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:34:58.652Z"},{"id":"alj-H306244-2025-11-26","awccNumber":"H306244","decisionDate":"2025-11-26","decisionYear":2025,"opinionType":"alj","claimantName":"James Newboles","employerName":"Comcast Corporation","title":"NEWBOLES VS. COMCAST CORPORATION AWCC# H306244 November 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/NEWBOLES_JAMES_H306244_20251126.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NEWBOLES_JAMES_H306244_20251126.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H306244 \n \n \nJAMES NEWBOLES, EMPLOYEE      CLAIMANT \n \nCOMCAST CORPORATION,  \nEMPLOYER               RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA, \nINSURANCE CARRIER            RESPONDENT \n \nHELMANS MANAGEMENT SERVICES, LLC \nThird Party Administrator           RESPONDENT \n \n \nOPINION AND ORDER FILED NOVEMBER 26, 2025 \n \nA Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, was held on November 18, 2025. \nClaimant failed to appear. \nRespondents were represented by Rick Behring, Jr., of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 18\nth\n day of November, 2025, \nin Little  Rock,  Arkansas, on Respondent’s Motion to Dismiss  for  failure  to  prosecute \npursuant to Arkansas Code Ann. 11-9-702 and 11 C.A.R. 25-110(d) which was previously \nnamed Rule 099.13 of the Arkansas Workers’ Compensation Commission. The claimant \nwas pro se and failed to appear. The Respondents were represented by Rick Behring, Jr. \nof Little Rock, Arkansas. The Claimant had previously been represented by Laura Beth \nYork, who was allowed to withdraw by an Order of the Full Commission dated March 4, \n2025.  \n A Motion to Dismiss along with the Brief In Support was filed on September 15, \n2025, which provided that the Claimant had sustained compensable injuries that included \n\nNEWBOLES – H306244 \n2 \n \nthe  head,  right  shoulder  and  spine, from  a  specific  incident  on  or  about  September17, \n2023. As reflected in the AR-2, the respondents accepted the claim as compensable. The \nClaimant filed an AR-C, requesting benefits with the Commission and subsequently made \na hearing request. The Respondents have provided all appropriate benefits to date and \ncontinue to provide reasonable and necessary medical care, and the Claimant has been \nreleased  from  care,  returned  to  work,  and  received  the  appropriate  permanent  partial \ndisability benefits. The Claimant has not taken any recent action to prosecute the claim, \nand it has been more than six months since the Claimant has filed his AR-C or requested \na hearing. \n The Motion to Dismiss along with a Brief in Support of the Motion requested that \nthe  matter  be  dismissed  without  prejudice  pursuant  to Arkansas  Code  Ann.  11-9-\n702(a)(4), 11-9-702(d), and 11 C.A.R. 25 110(d) of the Arkansas Workers’ Compensation \nCommission for failure to prosecute. No response was filed by the Claimant in regard to \nthe motion.     \n After proper notice, a hearing was held on November 18, 2025, and the Claimant \nfailed to appear. The Respondents were represented by Rick Behring, Jr., who requested \nthat the matter be dismissed pursuant to 11 C.A.R. 25 110(d) of the Arkansas Workers’ \nCompensation Commission and the provisions of Arkansas Code Ann. 11-9-702.   \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion  to  Dismiss without  prejudice pursuant  to 11  C.A.R.  110(d) of  the  Arkansas \nWorkers’ Compensation Commission and  A.C.A.  11-9-702, based  upon  the  Claimant \n\nNEWBOLES – H306244 \n3 \n \nhaving failed to request a hearing within six months of filing the Form AR-C and following \nthe request by the Respondents to dismiss the claim for want of prosecution.    \n IT IS SO ORDERED. \n \n \n \n      ____________________________ \n                JAMES D. KENNEDY \n                ADMINISTRATIVE LAW JUDGE","textLength":3575,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306244 JAMES NEWBOLES, EMPLOYEE CLAIMANT COMCAST CORPORATION, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA, INSURANCE CARRIER RESPONDENT HELMANS MANAGEMENT SERVICES, LLC Third Party Administrator RESPONDENT OPINION AND ORDER FILED NOVEMBER 26, 2...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:35:00.799Z"},{"id":"alj-H500896-2025-11-26","awccNumber":"H500896","decisionDate":"2025-11-26","decisionYear":2025,"opinionType":"alj","claimantName":"Stephen Moore","employerName":"Incite Rehab, LLC","title":"MOORE VS. INCITE REHAB, LLC AWCC# H500896 November 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Moore_Stephen_H500896_20251126.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Moore_Stephen_H500896_20251126.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H500896 \n \nSTEPHEN H. MOORE, \nEMPLOYEE                                                                                                              CLAIMANT \n \nINCITE REHAB, LLC, \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nARK. SELF-INSURED TRUST, \nCARRIER                                                                                                             RESPONDENT \n \nCCMSI, \nTHIRD-PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED NOVEMBER 26, 2025 \n \nHearing conducted on Tuesday, October 14, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant is Pro Se, of Jonesboro, Arkansas.  \n \nThe Respondents were represented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non August 12, 2025.  A hearing on the motion was conducted on October 14, 2025, in Little Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a retirement living HEA. The date \nfor Claimant’s alleged injury was on November 18, 2024. There is an issue as to when this incident \nwas reported to the Respondent/Employer. Admitted into evidence was Respondents’ Exhibit 1, \npleadings, and correspondence, consisting of 8 pages, and Commission Ex. 1, pleadings, and U.S. \nMail return receipts, consisting of 7 pages, as discussed infra. \n\nMOORE, AWCC No. H500896 \n \n2 \n \nThe record reflects on February 10, 2025, a Form AR-C was filed purporting that Claimant \nsustained a work-related injury to his low back while treating two patients. On February 24, 2025, \na Form AR-1 was filed with the Commission noting that the date the employer was notified was \non February 10, 2024\n1\n. On February 24, 2025, a Form AR-2 was filed denying compensability.   \nRespondents filed a Motion to Dismiss due to Claimant’s failure to prosecute his claim on \nAugust 12, 2025. The Claimant was sent, on August 15, 2025, notice of the Motion to Dismiss, \nvia certified  and  regular  U.S.  Mail,  to  his last  known  address.  The  certified motion notice  was \nclaimed by Claimant as  noted on the August 19,  2025, return receipt. This notice was  also sent \nregular U.S. Mail and did not return to the Commission. Despite this, the Claimant did not respond \nto  the  Motion,  in  writing,  as  required. Thus,  in accordance  with  applicable  Arkansas  law,  the \nClaimant was mailed due and proper legal notice of Respondents’ Motion to Dismiss hearing date \nat his current address of record via the United States Postal Service (USPS), First Class Certified \nMail, Return Receipt Requested, and regular First-Class Mail, on September 8, 2025. The certified \nnotice was not claimed as noted by the September 23, 2025, return receipt. Likewise, the hearing \nnotice  sent  regular  First-Class  was  not  returned  to  the  Commission. The  hearing  took  place  on \nOctober 14, 2025. And as mentioned before, the Claimant did not show up to the hearing. \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n1\n This date appears to be in error since the date of injury comes months after the date of notice to the employer. \n\nMOORE, AWCC No. H500896 \n \n3 \n \n \n2. The Claimant and Respondents both had reasonable notice of the October 14, 2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was not claimed by Claimant, per the return postal notice bearing the September 23, 2025, \ndate. However, the hearing notice was also sent First-Class U.S. Mail to Claimant’s last known \naddress  record  and  did  not  return  to  the  Commission. Thus,  I  find  by  the  preponderance  of  the \nevidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \nAR-C on February 10, 2025. Since then, he has failed to request a bona fide hearing. Therefore, I \n\nMOORE, AWCC No. H500896 \n \n4 \n \ndo find by the preponderance of the evidence that Claimant has failed to prosecute his claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6015,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H500896 STEPHEN H. MOORE, EMPLOYEE CLAIMANT INCITE REHAB, LLC, SELF-INSURED EMPLOYER RESPONDENT ARK. SELF-INSURED TRUST, CARRIER RESPONDENT CCMSI, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED NOVEMBER 26, 2025 Hearing conducted on Tuesday, October 14, 2...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:35:02.882Z"},{"id":"alj-H403472-2025-11-26","awccNumber":"H403472","decisionDate":"2025-11-26","decisionYear":2025,"opinionType":"alj","claimantName":"Wendy Sciepura","employerName":"Emerson Electric Co","title":"SCIEPURA VS. EMERSON ELECTRIC CO. AWCC# H403472 November 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SCIEPURA_WENDY_H403472_20251126.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCIEPURA_WENDY_H403472_20251126.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H403472 \nWENDY SCIEPURA, EMPLOYEE     CLAIMANT \n \nEMERSON ELECTRIC CO. \nEMPLOYER          RESPONDENT \n \nOLD REPUBLIC INSURANCE CO.     RESPONDENT \n \nOPINION AND ORDER FILED NOVMEBER 26, 2025 \n \nA Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, was held on November 18, 2025. \nClaimant failed to appear. \nRespondents were represented by Richard “Dick” N. Dodson of Texarkana, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 18\nth\n day of November 2025, \nin Little  Rock,  Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute \npursuant to Arkansas Code Ann. 11-9-702(a)(4). The claimant was pro se and failed to \nappear. The Respondents were represented by Richard “Dick” N. Dodson of Texarkana, \nArkansas. The Claimant had previously been represented by Jim Burton, who had been \nallowed to  withdraw  by  an  Order  from  the  Full  Commission  dated February 5,  2025. A \nMotion to Dismiss was filed on September 15, 2025, which provided that a First Report \nof Injury was filed on May 29, 2024, and the Respondents filed an Intent to Controvert the \nClaim on June 27, 2024. The Claimant alleged an injury occurring on May 2, 2024, and \nrequested a hearing. Interrogatories were propounded to the Claimant on August 2, 2024, \nand on August 8, 2024, the counsel for the Claimant at the time, requested that the matter \nreturned  to  general  files. After  the  Claimant’s  attorney  was  allowed  to  withdraw, \n\nWendy Sciepura – H403472 \n2 \nInterrogatories  and  Requests  for  Production  of  Documents  were  again  sent  to  the \nClaimant, and the Claimant’s incomplete responses were received on or about March 21, \n2025. The Respondent’s requested the deposition of the Claimant on April 22, 2025, and \nthe Claimant responded with a letter to the Commission stating, “I request not to have a \ntrial and to end my case.”   \n Arkansas Code Ann. 11-9-702(a)(4) provides for dismissal of a claim if no bona \nfide request for a hearing has been made within six (6) months of the filing of his claim.  \nNo response was filed by the Claimant in regard to the Motion to Dismiss and there have \nbeen no steps to prosecute her claims within six months. Additionally, the Claimant has \nstated that she does not wish to pursue the claim.   \n After proper notice, a hearing was held on November 18, 2025, and the Claimant \nfailed to appear. The Respondents were represented by Richard “Dick” N. Dodsen, who \nrequested that the matter be dismissed pursuant to Arkansas Code Ann. 11-9-702(a)(4). \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion to Dismiss without prejudice pursuant to Arkansas Code Ann. 11-9-702(a)(4).   \n IT IS SO ORDERED. \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":3045,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H403472 WENDY SCIEPURA, EMPLOYEE CLAIMANT EMERSON ELECTRIC CO. EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE CO. RESPONDENT OPINION AND ORDER FILED NOVMEBER 26, 2025 A Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas, was held ...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:04.952Z"},{"id":"alj-H306164-2025-11-26","awccNumber":"H306164","decisionDate":"2025-11-26","decisionYear":2025,"opinionType":"alj","claimantName":"Whitney Scruggs","employerName":"Express Services, Inc","title":"SCRUGGS VS. EXPRESS SERVICES, INC. AWCC# H306164 November 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SCRUGGS_WHITNEY_H306164_20251126.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCRUGGS_WHITNEY_H306164_20251126.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H306164 \n \nWHITNEY SCRUGGS, EMPLOYEE      CLAIMANT \n \nEXPRESS SERVICES, INC. \nEMPLOYER              RESPONDENT \n \nAIU INSURANCE COMPANY/ \nSEDGWICK CMS, CARRIER/TPA         RESPONDENT \n \nOPINION AND ORDER FILED NOVEMBER 26, 2025 \n \nA Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, was held on November 18, 2025. \nClaimant failed to appear. \nRespondents were represented by Carol Worley, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was originally held in the above styled matter on the 15\nth\n day of October, \n2024, in Little Rock, Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute \npursuant  to  Arkansas  Code  Ann. § 11-9-702(a)(4)  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Commission, which has been renamed 11 C.A.R. 25-110(d) and \nwill be referred to by that name in the remainder of this opinion. The Claimant was pro se \nand appeared on the scheduled date of the original Motion to Dismiss hearing, October \n15, 2024. An Opinion was entered on October 23, 2024, which provided that the Claimant \nunequivocally  stated  he  intended  to  pursue  his  claim  and  that  due  to  the  fact  that \nClaimant’s attorney had been allowed to withdraw, it was found that there was no basis \nto dismiss the claim at that time. \n\nWhitney Scruggs – H306164 \n2 \n \n A second Motion to Dismiss was filed on January 30, 2025, again contending that \nthe  claim  should  be  dismissed  pursuant  to Arkansas  Code  Ann. § 11-9-702(a)(4) and \nwhat is now referred to 11 C.A.R 25-110(d). Multiple hearing dates were scheduled and \nrescheduled in an attempt to assist the Claimant and a hearing on the Motion to Dismiss \nwas finally held on August 12, 2025, and the Claimant again appeared pro se. An Opinion \nwas issued on August 27, 2025. The Opinion provided that the Motion to Dismiss would \nbe taken under advisement at that time and that the claim should proceed to a hearing \npursuant to the statutory law and the rules of the Arkansas Workers’ Compensation \nCommission, in  a  timely  process.  The  claimant  was  placed  upon  notice  that  failing  to \nrespond to discovery, failing to pursue his claim in a timely manner, and failing to keep \nthe Commission notified of his mailing address, could result in the dismissal of his claim, \nwithout prejudice.  Pursuant  to no action  of  record  being  taken by  the  Claimant,  a third \nhearing was scheduled on November 18, 2025. \n The third  hearing  in  regard  to the dismissal of  the  claim was  scheduled  on \nNovember  18,  2025,  in  Little  Rock,  Arkansas,  and  the  Claimant  failed  to  appear.  The \nrespondents were represented by Carol Worley, who again requested that the matter be \ndismissed without prejudice pursuant to 11 C.A.R. 25 -110(d) of the Arkansas Workers’ \nCompensation Commission for failure to prosecute, or in the alternative that the matter \nbe dismissed without prejudice pursuant to A.C.A. § 11-9-702(a)(4), which provided for \ndismissal of a claim if no bona fide request for a hearing had been made within six (6) \nmonths of the filing of his claim. No response was filed by the Claimant in regard to the \nmotion. The Respondents alleged that the Claimant had taken no steps to prosecute his \nclaim within six months, after two previous Motion to Dismiss hearings.   \n\nWhitney Scruggs – H306164 \n3 \n \n After proper notice, a hearing was held on November 18, 2025, and the Claimant \nfailed to appear. The Respondents were represented by Carol Worley, who walked out \ninto the waiting room to again check to see if the Claimant had appeared, even though \nthe time was now fifteen minutes after the scheduled start time for the hearing. There was \nno record of a request  for a hearing being made  withing  six months  of  the  filing  of  the \nclaim or from the filing of the second Motion to Dismiss, and no record of any action taken \nto prosecute the claim. \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion to Dismiss without prejudice pursuant to 11 C.A.R. 110(d) of the Arkansas \nWorkers’ Compensation Commission and A.C.A. § 11-9-702(a)(4).   \n IT IS SO ORDERED. \n         ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":4463,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306164 WHITNEY SCRUGGS, EMPLOYEE CLAIMANT EXPRESS SERVICES, INC. EMPLOYER RESPONDENT AIU INSURANCE COMPANY/ SEDGWICK CMS, CARRIER/TPA RESPONDENT OPINION AND ORDER FILED NOVEMBER 26, 2025 A Hearing before Administrative Law Judge James D. Kennedy in Little ...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:07.024Z"},{"id":"alj-H404293-2025-11-25","awccNumber":"H404293","decisionDate":"2025-11-25","decisionYear":2025,"opinionType":"alj","claimantName":"Carmelina Juan","employerName":"Scott Queen, LLC","title":"JUAN VS. SCOTT QUEEN, LLC AWCC# H404293 November 25, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JUAN_CARMELINA_H404293_20251125.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JUAN_CARMELINA_H404293_20251125.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404293 \n \nCARMELINA JUAN, Employee CLAIMANT \n \nSCOTT QUEEN, LLC, Employer RESPONDENT \n \nACCIDENT FUND INS. CO., Carrier RESPONDENT \n \n \n \n OPINION FILED NOVEMBER 25, 2205 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents  represented  by KAREN  H.  MCKINNEY,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This  case  comes  on  for  review  following  a  hearing  on  respondent’s second \nMotion to Dismiss. \n A prior hearing on respondent’s Motion to Dismiss was conducted on March 12, \n2025.  Claimant  appeared  at  that  hearing  and  stated  that  she  did  not  want  her  case \ndismissed  and  was  requesting  payment  of  medical  bills.  Claimant  agreed  to  provide \nattorney McKinney with copies of those unpaid bills. Following this hearing, an Opinion \nwas filed on March 26, 2025, denying respondent’s Motion to Dismiss.  \n On  August 15,  2025,  respondent filed  its  second  Motion  to  Dismiss,  stating  that \nafter  the  March  12,  2025,  hearing,  claimant  emailed  copies  of  her  unpaid  bills  to \nattorney McKinney. Respondent, in turn, paid those bills and attached to its most recent \n\nJuan – H404293 \n \n-2- \nmotion proof of payment. Respondent now contends that a motion to dismiss is proper \ngiven that the outstanding bills have been paid and there are no issues to be resolved.  \n A  hearing  on  the  respondent’s  second  Motion  to  Dismiss  was  scheduled  for \nNovember 5, 2025. Notice of the hearing was sent to claimant by certified mail and was \ndelivered  on  October  8,  2025.  Claimant  did  not  appear  at  the  hearing  and  has  not \nresponded to the respondent’s Motion to Dismiss. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto,  and  all  other matters  properly  before  the  Commission;  including, documentary \nevidence indicating that prior unpaid bills have now been paid, I find that respondent’s \nsecond  Motion  to  Dismiss  should  be  and  hereby  is  granted.  This  dismissal  is  without \nprejudice and is pursuant to Commission Rule 099.13 (not codified at 11 §CAR 25-110). \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2453,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404293 CARMELINA JUAN, Employee CLAIMANT SCOTT QUEEN, LLC, Employer RESPONDENT ACCIDENT FUND INS. CO., Carrier RESPONDENT OPINION FILED NOVEMBER 25, 2205 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Cl...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:34:52.365Z"},{"id":"alj-H404644-2025-11-25","awccNumber":"H404644","decisionDate":"2025-11-25","decisionYear":2025,"opinionType":"alj","claimantName":"Richard Milton","employerName":"Georgia Pacific LLC","title":"MILTON VS. GEORGIA PACIFIC LLC AWCC# H404644 November 25, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MILTON_RICHARD_H404644_20251125.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MILTON_RICHARD_H404644_20251125.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        CLAIM NO.: H404644 \n \nRICHARD MILTON,   \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nGEORGIA PACIFIC LLC,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                  \n \nOLD REPUBLIC INSURANCE COMPANY, \nINSURANCE CARRIER                                                                                        RESPONDENT \n \nESIS, INC., \nTHIRD PARTY ADMINISTRATOR /TPA                                                           RESPONDENT                                                             \n                                                                                                   \n \n                                            OPINION FILED NOVEMBER 25, 2025    \n \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n  \nClaimant, Pro Se, failed to appear at the hearing. \n \nRespondents represented  by the  Honorable Rick  Behring,  Jr., Attorney  at  Law, Little  Rock, \nArkansas. \n \n                                                   STATEMENT OF THE CASE      \n \n This  matter  comes  before  the  Commission following a motion  to dismiss filed by the \nrespondents.    A  hearing  on  the  motion  was  conducted  on November 5,  2025,  in El  Dorado, \nArkansas.  Presently the sole issue for determination before the Commission is whether this claim \nshould be dismissed due to the claimant’s failure to prosecute under the provisions of Ark. Code \nAnn. §11-9-702 (Repl. 2012), and/or Arkansas Workers’ Compensation Commission Rule 099.13 \n(now codified at 11 C.A.R. § 25-110 (d)). \n             The  record  consists of the November 5,  2025,  hearing transcript and documentary \nevidence.  In that regard, Commission’s Exhibit 1 encompassing two (2) actual pages, as it has \n\nMilton – H404644 \n \n2 \n \nbeen marked accordingly, and Respondents’ Exhibit 1 consisting of nine (9) numbered pages was \nthus designated.   \n Reasonable notice of the dismissal hearing was tried on all the parties in the manner  \nestablished by applicable law.   \nNo testimony was taken at the hearing.  \n                        Background \nThe record reflects the following procedural history: \n On July  25,  2024, the claimant filed  a  Form  AR-C,  with  the  Commission, wherein  he \nalleged that he sustained an accidental injury, on June 11, 2024, while working for the respondent-\nemployer.  According  to  this  document,  the  claimant  provided  the  following  description  of  his \nalleged work-related accidental injury during the course and scope of his employment when he fell \ndown a flight of a few steps.  Claimant alleged that he sustained injuries to his back, neck, and \nshoulder.  Per  the  Form  AR-C,  the  claimant  requested only additional workers’ compensation \nbenefits in the form of a change of physician.    \nThe respondents filed an initial Form AR-2, with the Commission on June 22, 2024.  At \nthis time, respondents controverted this claim in its entirety as a compensable claim.  Specifically, \nthe respondents stated that “... injury is denied per Arkansas statutes.”  \n Subsequently, in January 2025, the claimant retained legal counsel to represent him in this \nmatter.  In June 2025, the claimant’s attorney filed a letter with the Commission asking that he be \nremoved as counsel  of  record  for  the claimant in  this  matter.  There was no  objection  to  the \nclaimant’s attorney’s motion to withdraw from representing the claimant in this case.  Therefore, \nthe Full Commission entered an order on July 18, 2025, granting the claimant’s attorney’s motion \nto withdraw from representing him in this matter.   \n\nMilton – H404644 \n \n3 \n \nSince the filing of the Form AR-C, the Claimant has failed to prosecute or otherwise pursue \nhis claim for workers’ compensation benefits.  Specifically, it has been more than six (6) months \nsince the filing of the Form AR-C; but thus far, the claimant has made no bona fide request for a \nhearing with respect to his claim.   \nAs a result, in August 2025, the respondents’ attorney filed with the Commission a Motion \nto Dismiss and Incorporated Brief in Support asking that this claim be dismissed due to a lack of \nprosecution by the claimant.   \nOn August 21, 2025, my office wrote to the claimant and requested a written response to \nthe motion within twenty (20) days.  Said letter was mailed to the claimant by both first-class and \ncertified mail to the address listed by the claimant with the Commission.   \nPer  tracking  information  received  from  the United  States Postal  Service, the  dismissal \nhearing notice sent by certified mail to the claimant was picked up by an individual on August 30, \n2025.  The signature of the recipient of said letter is illegible.  However, the letter sent by first-\nclass mail has not been returned to the Commission.   \nOn September 16, 2025, my office sent a Notice of Hearing to the parties scheduling this \nmatter for a dismissal hearing on November 5, 2025, at the Commission.   Said hearing notice was \nsent to the claimant by both first-class and certified mail to the same address as before.   \nThe Postal Service delivered the  notice  of  hearing to the claimant’s home address on \nSeptember 18, 2025, and left it with an individual.  The signature of the person in receipt of this \nnotice  is  illegible.   However,  the notice sent  by first-class mail has not been returned to  the \nCommission.   Thus,  the above evidence  preponderates  that reasonable notice  of  the dismissal \nhearing was made upon the claimant as required under law.  \n\nMilton – H404644 \n \n4 \n \n Therefore, the dismissal hearing was conducted on the respondents’ motion to dismiss this \nclaim as formerly scheduled.  Despite having received notice of the dismissal hearing, the claimant \ndid  not appear  at  the  hearing.  However,  the respondents  appeared at  the  hearing through their \nlawyer.  The respondent’s counsel argued, among other things, for dismissal of this claim because \nthe claimant  has made  no bona fide  request for  a hearing or taken  any action to prosecute or \notherwise resolve his claim  since the  filing  of  the  Form  AR-C in July  2025.   Specifically, the \nattorney for respondents moved for dismissal without prejudice, under the authority of Ark. Code \nAnn. §11-9-702, and/or Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110(d)). \n            Adjudication  \nThe statutory  provisions and Arkansas Workers’ Compensation Rule applicable to the \nrespondents’ motion for dismissal of this claim for workers’ compensation benefits are outlined \nbelow:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, Ark. Code Ann. §11-9-702(d) states:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \n Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110(d)), states: \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \n\nMilton – H404644 \n \n5 \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \nThe evidence shows that the claimant has failed to respond to the written notices of this \nCommission, and he did not appear at the hearing to object to the dismissal motion.  Moreover, \nsince the filing of the Form AR-C, which was done more than six (6) months ago, the claimant has \nnot made a bona fide request for a hearing with respect to his claim.  Considering all the foregoing, \nI am compelled to conclude that the claimant has abandoned his claim for workers’ compensation \nbenefits.   \nAccordingly,  based  on my  review  of  the documentary  evidence,  and  all  other  matters \nproperly  before  the  Commission,  I  find  that  the respondents’ motion  to dismiss  this  claim is \nwarranted  under  the  provisions  of Ark.  Code  Ann.  §11-9-702 (a)(4), §11-9-702 (d),  and Rule \n099.13 (now codified at 11 C.A.R. § 25-110(d)), of this Commission.  Said dismissal is without \nprejudice, to the refiling of this claim within the limitation period specified by law.   \n                           FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. In July 2025, the claimant filed a Form AR-C with the Commission in this \nmatter  asserting  his entitlement to workers’ compensation benefits due to \nan alleged accidental injury occurring on June 11, 2024. \n  \n\nMilton – H404644 \n \n6 \n \n 3.         More than six (6) months passed after the filing of the Form AR-C,   \n  and the claimant did not make a bona fide request for a hearing.    \n \n 4. The respondents filed with the Commission a motion to dismiss this claim,  \n                        for which a hearing was held. \n \n5.         Reasonable notice of the motion to dismiss and hearing was had on all the \nparties.  \n \n6.         The evidence preponderates that the respondents’ motion to dismiss this  \n            claim for want of prosecution is warranted.   \n \n7.         That the respondents’ motion to dismiss is hereby granted pursuant to Ark.  \n Code Ann. §11-9-702 (a)(4), §11-9-702 (d), and Commission Rule 099.13,      \n(now codified at 11 C.A.R. § 25-110(d)), without prejudice, to the refiling     \nof the claim within the specified limitation  period.   \n \nORDER \nIn  accordance  with  the  foregoing  findings  of  fact  and  conclusions  of  law,  this  claim is \nhereby dismissed without prejudice, pursuant to Ark. Code Ann. §11-9-702 and Commission Rule \n099.13 (now codified at 11 C.A.R. § 25-110(d)), to the refiling of it within the specified limitation \nperiod.        \nIT IS SO ORDERED. \n   \n                                  \n                                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":11883,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H404644 RICHARD MILTON, EMPLOYEE CLAIMANT GEORGIA PACIFIC LLC, EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT ESIS, INC., THIRD PARTY ADMINISTRATOR /TPA RESPONDENT OPINION FILED NOVEMBER 25, 2025 Hearing held before Admini...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["back","neck","shoulder"],"fetchedAt":"2026-05-19T22:34:54.512Z"},{"id":"alj-H502140-2025-11-25","awccNumber":"H502140","decisionDate":"2025-11-25","decisionYear":2025,"opinionType":"alj","claimantName":"Denisha Shepherd","employerName":"Little Rock Hl","title":"SHEPHERD VS. LITTLE ROCK HL AWCC# H502140 November 25, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SHEPHERD_DENISHA_H502140_20251125.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHEPHERD_DENISHA_H502140_20251125.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H502140 \n \n \nDENISHA SHEPHERD,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nLITTLE ROCK HL,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nESIS, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED NOVEMBER 25, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Tuesday, November 25, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe  claimant,  Ms.  Denisha  Shepherd,  pro  se,  of  Little  Rock,  Pulaski  County,  Arkansas,  failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable William C. (Bill) Frye, Frye Law Firm, P.A., \nNorth Little Rock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Thursday, September 11, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and 11 C.A.R. Section 25-110(d) (Code of AR Regulations 2025) (formerly cited \nas Commission Rule 099.13 (2025 Lexis Replacement)). \n         The  claimant  initially  was  represented  by  counsel  in  this  matter,  Mr.  Mark  Peoples  of  the \nPeoples  Law  Firm  of  Little  Rock;  however,  by  an  order  filed  September  10,  2025,  the  Full \n\nDenisha Shepherd, AWCC No. H502140 \n2 \n \nCommission unanimously granted Mr. Peoples’s motion to withdraw as the claimant’s counsel of \nrecord. (Commission Exhibit 1).  \n        Thereafter, on September 25, 2025, the respondents filed via email a letter motion to dismiss \nthis  claim  without  prejudice  for  lack  of  prosecution  (MTD). (Comms’n Ex. 2; Respondents’ \nExhibit 1). In accordance with the applicable law the claimant was provided due and legal notice \nof both the respondents’ MTD as  well  as  the date,  time,  and  place  of  the MTD hearing. The \nclaimant has failed and/or refused to respond to the respondents’ MTD in any way; has failed \nand/or refused to object to the respondents’ MTD; and failed and/or refused to appear at the \nhearing. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark. App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute her claim, or to request \na hearing within the last six (6) months. Moreover, she has failed and/or refused to object to the \nrespondents’ MTD. \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n\nDenisha Shepherd, AWCC No. H502140 \n3 \n \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having received due  and  legal  notice  of both the respondents’ letter MTD without \nprejudice filed with the Commission on September 25, 2025, as well as due and legal notice \nof the date, time,  and  place of  the  subject  hearing,  the  claimant failed  and/or  refused  to \nrespond  to  the  MTD  in any  way;  failed  and/or  refused  to  object  to  the  MTD;  and  failed \nand/or refused to appear at the subject hearing. \n \n3. The claimant has not requested a hearing within the last six (6) months and has taken no \naction(s) to raise any issues related to or to prosecute this claim.  \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ letter \nMTD without prejudice  filed September 25, 2025, should be and hereby  is GRANTED; \nand  this  claim  is  dismissed  without  prejudice  to  its  refiling  pursuant  to  the  deadlines \nprescribed  by Ark.  Code  Ann. Section  11-9-702(a)  and  (b) and 11 C.A.R. 25-110(d) \n(formerly cited as Commission Rule 099.13). \n \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n\nDenisha Shepherd, AWCC No. H502140 \n4 \n \n \nMP/mp","textLength":5707,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H502140 DENISHA SHEPHERD, EMPLOYEE CLAIMANT LITTLE ROCK HL, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ ESIS, INC. CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 25, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:34:56.587Z"},{"id":"alj-G908247-2025-11-21","awccNumber":"G908247","decisionDate":"2025-11-21","decisionYear":2025,"opinionType":"alj","claimantName":"Dakota Humphrey-Friend","employerName":"Best Buy Stores Lp","title":"HUMPHREY-FRIEND VS. BEST BUY STORES LP AWCC# G908247 November 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HUMPHREY-FRIEND_DAKOTA_G908247_20251121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HUMPHREY-FRIEND_DAKOTA_G908247_20251121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. G908247 \n \nDAKOTA J. HUMPHREY-FRIEND, EMPLOYEE CLAIMANT \n \nBEST BUY STORES LP, EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER/TPA RESPONDENT \n \n \n OPINION FILED NOVEMBER 21, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by JASON M. HATFIELD, Attorney,  Springdale, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney,  Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  August 14, 2025, the above captioned claim came on for a hearing at Springdale, Arkansas. \nA pre-hearing conference was conducted on May 19, 2025, and a pre-hearing order was filed on that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2.   The employee/employer/carrier relationship existed on December 3, 2019.  \n3.   The claimant sustained a compensable injury on December 3, 2019. \n4.    The  compensation  rates  are  $626.00  for    temporary  total  disability  and  $470.00  for    \npermanent partial disability.   \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n\nHumphrey-Friend-G908247 \n2 \n \n \n1 Whether claimant is entitled to temporary total disability benefits from April 21, 2025,  to \na date yet to be determined. \n2 Whether  claimant  is  entitled  to  additional  medical  treatment  as  recommended  by  Dr. \nBlankenship and Dr. Knox. \n3 Attorney’s fee.  \n All other issues are reserved by the parties. \n The claimant contends that “He sustained a compensable injury while working for respondent \non or about December 3, 2019. At that time, claimant was in the course and scope of his employment \nwith respondent, when he injured his back lifting a TV resulting in thoracic spine protrusions at T5-6 \nand  T6-7. Claimant  attempted  conservative  treatment  including  pain  medication,  physical  therapy, \nintramuscular steroid injections, and epidural steroid injections. This conservative treatment initially \noffered claimant temporary pain relief, but injections have become less and less effective. Dr. Jason \nHolt  at  Interventional  Pain  Specialist was the authorized  treating  physician. Dr.  Holt  increased \nclaimant’s pain medication and performed an ultrasound-guided trigger point injection, longissimus \nthoracis left on April 12, 2024, and an ultrasound-guided trigger point injection, longissimus thoracis \nbilateral on May 24, 2024. These offered a short amount of pain relief.  \nClaimant was employed with respondent for more than a decade prior to his work injury, and \nclaimant   had   no   pre-injury   impairments,   restrictions,   or   limitations. Claimant   worked   with \naccommodations  up  to  April  2024  when  his  employment  was  terminated. Claimant  has  not  found \nwork since that time. Claimant was evaluated by Dr. Luke Knox on November 4, 2024, at the request \nof the respondents. Dr. Knox changed claimant’s pain medication and ordered a new thoracic MRI \nscan. Claimant was to return to the office in 1 month for follow-up. To date, respondents have not \napproved the MRI scan ordered by Dr. Knox. Dr. Holt left his practice and is now at the Veterans \n\nHumphrey-Friend-G908247 \n3 \n \n \nAdministration  and  is  unavailable  to  treat  claimant. Subsequently,  claimant  was  granted  a  second \nchange of physician to Dr. James Blankenship. Dr. Blankenship, like Dr. Knox, has recommended a \nnew  MRI  along  with  physical  therapy  and  a  transforaminal  epidural  steroid  injection. Respondents \nhave denied treatment.”  \n The respondents contend that “All appropriate benefits have been and are continuing to be \npaid with regard to this matter. The claimant recently underwent a change of physician evaluation and \nadditional  diagnostic  testing  was  recommended  and  approved. Respondents  have  no  medical \ndocumentation  indicating  the  claimant  is  in  an  off-work  status  and  entitled  to  temporary  disability \nbenefits.”   \n           From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on May \n19, 2025, and contained in a pre-hearing order filed on that same date are hereby accepted as fact. \n 2.        Claimant  has  met  his burden  of  proof  by  a  preponderance  of  the  evidence  that  he  is \nentitled to additional medical benefits as recommended by Dr. James Blankenship for his compensable \nthoracic back injury. \n3.  Claimant  has failed  to  prove by  a  preponderance  of  the  evidence  that  he  is  entitled  to \ntemporary total disability benefits from April 21, 2025, to the date of the hearing. \n FACTUAL BACKGROUND \n At the prehearing conference, the parties announced a stipulation that claimant has suffered a \n\nHumphrey-Friend-G908247 \n4 \n \n \ncompensable injury on December 3, 2019. The stipulation did not specify what part of claimant’s body \nwas involved in the compensable injury. However, claimant’s contentions contained this allegation: \n“He suffered a compensable injury while working for respondent on or about December 3, 2019. At \nthat time, claimant was in the course and scope of his employment for respondent when he injured \nhis back lifting a TV, resulting in thoracic spine protrusions at T5-6 and T6-7. (Commission Exhibit, \npage 2) (Emphasis added). Respondent’s stipulation as to a compensable injury must be read in light \nof claimant’s contention. Respondents  were  entitled  to  rely  upon  the  contentions  set  forth  in  the \nprehearing order in its defense of this claim. As such, I find the parties stipulated only to a thoracic \nspine injury. Claimant’s brief recited what Dr. Blankenship said about neck and low back pain but put \non no testimony about either of those conditions. Any issues regarding any possible injury other than \nto the thoracic spine are neither awarded nor denied but rather are reserved.  \nHEARING TESTIMONY \n \n Claimant was the only witness called by either party. He began working at Best Buy in 2011, \nfirst as a field helper and then as field leader, which consisted of home installations of whatever Best \nBuy  sold. He  sustained  a  mid-back  injury  on  December  3,  2019,  while  removing  a  tube  television \nduring  a  Best  Buy  installation. Claimant estimated  the  television  weighed  at  least  200  pounds  and \nstated that as he carried it down a ladder, he experienced a sharp pain in his back. Following the injury, \nclaimant  received  conservative  treatment,  including  physical  therapy  and  epidural  steroid  injections \nadministered by Dr. David Benson. He remained off work for approximately six months and received \ntemporary total disability (TTD) benefits during that time. He was among the Best Buy employees laid \noff during the early months of the COVID-19 pandemic.  \n  Claimant returned to work in the summer of 2020 but was having the same problems with his \nmid-back. Best  Buy  accommodated  his  restrictions  by  assigning  additional  personnel  to  assist  with \n\nHumphrey-Friend-G908247 \n5 \n \n \nphysically  demanding  tasks  and  eventually  transitioning  him  into  a  supervisory  role.  He  continued \nreceiving epidural injections until Dr. Benson determined that sedation should be discontinued, which \nmade the  injections unsafe due to claimant’s muscle spasms and involuntary movement. After  the \nepidural injections were discontinued, claimant obtained a change of physician and began treating with \nDr. Jason Holt.  Dr.  Holt administered  trigger  point  injections,  which  claimant  testified  were  less \neffective than the epidural injections and that his condition worsened. He continued working under \naccommodations until his employment ended in April 2024.  \n Dr. Holt left private practice, and claimant received another change of physician order to Dr. \nJames  Blankenship. Claimant  testified  that  at his  initial  visit on March  31, 2025, Dr.  Blankenship \nrecommended  renewed  epidural  injections,  pool  therapy,  and  prescribed  medications.  Claimant \ntestified that none of the treatment recommended by Dr. Blankenship or Dr. Knox, a prior treating \nneurosurgeon, had been approved or paid for by the workers’ compensation carrier. \n Claimant stated that he attempted to use his workers’ compensation pharmacy card to pay for \nprescriptions  written  by  Dr.  Knox  and  Dr.  Blankenship; the  card  was  denied,  and  he  paid  for  the \nmedications out of pocket. Since his last trigger point injection in late 2024, claimant had received no \nother treatment aside from medication and testified that his condition had worsened. \n Dr.  Blankenship  issued  restrictions  including  a  25-pound  lifting  limit  and  prohibitions  on \nexcessive  climbing,  bending,  crawling,  and  stooping.  Claimant  stated  that  no  physician  had  ever \nremoved  all  restrictions  and  that  these  limitations  were  consistent  with  those  under  which  he  had \nworked for four years at Best Buy. He has not worked or earned income since April 21, 2024, when \nhe was laid off. Claimant testified that he is ready and willing to return to work once medically able. \n        On cross-examination claimant  confirmed  that  he  carried  the  television  down  a  ladder  and \nmaintained that it weighed at least 200 pounds. He acknowledged that he had previously testified in \n\nHumphrey-Friend-G908247 \n6 \n \n \ndeposition  that  he  had  no  prior  spine-related  symptoms  or  injuries  before  December  3,  2019. \nHowever, chiropractic records from 2017 and 2018 documented low back pain rated at 8 out of 10. \nClaimant stated that he misunderstood the deposition question and believed it referred to a specific \ninjury rather than general symptoms. \n           Claimant   conceded he   did   not   achieve   complete   relief from   physical   therapy. He \nacknowledged that he had informed providers in late 2023 and early 2024 that the effectiveness of \nepidural injections was tapering. \n Claimant  confirmed  that  he  applied  for  unemployment  benefits  after  his  injury  and  before \nreturning to work in 2020. In his application for those benefits, he stated he was being truthful when \nhe represented he had no disabilities preventing him from working and that he was available for full-\ntime  employment.  Claimant  returned  to  work  in  early  summer  2020  and  remained  employed \ncontinually with Best Buy until April 2024, aside from a brief unrelated foot injury. \n Claimant  clarified on  redirect examination that  he  had  previously  received  chiropractic \nadjustments from Dr. Smith, a chiropractor he met while performing installations. Dr. Smith invited \nhim  for  adjustments,  and  claimant  confirmed  that  he  completed  a  pain  index  form  in  April  2018 \nindicating mild, intermittent pain that did not interfere with daily activities. He stated that occasional \nsoreness from physical labor was relieved by adjustments and that he never missed work due to back \npain prior to the December 2019 injury. Claimant reaffirmed that the television involved in his injury \nweighed at least 200 pounds and described that estimate as conservative. \n On recross-examination, claimant acknowledged that the chiropractic records from 2017 and \n2018 reflected pain levels of 8 out of 10. He explained that those ratings represented the worst pain \nhe experienced at the time and that his symptoms varied. He testified that his current pain level related \nto the claim was a 10 out of 10. \n\nHumphrey-Friend-G908247 \n7 \n \n \n \nREVIEW OF THE EXHIBITS \n \nIn addition to the Prehearing Order discussed above, the exhibits admitted into evidence in \nthis  case  were  Claimant's  Exhibit  1,  a  compilation  of his medical  records,  consisting  of five index \npages and 353 numbered pages thereafter; Claimant’s Exhibit 2, consisting of one index page and 11 \npages of employment evaluations thereafter; Claimant’s Exhibit 3, consisting of one index page and 7 \npages  of itemization  of claimant’s prescriptions thereafter; Claimant’s Exhibit 4, consisting of one \nindex  page  and 8  pages  of chiropractic  records that  predated claimant’s compensable  injury; \nRespondents' Exhibit 1, another compilation of Claimant's medical records, consisting of two index \npages and 32 numbered  pages  thereafter,  including  a  peer  review by  Dr.  Terry  Lictor;  and \nRespondents' Exhibit 2, non-medical records, consisting of one index page and 43 numbered pages \nthereafter, which includes claimant’s severance package from Best Buy and  the  payment  record  of \ntemporary total disability from December 7, 2019, through May 5, 2020. \nThe medical records are too voluminous for a detailed summary, but the course of treatment \nwas recounted adequately by claimant in his testimony. The records from Smith Family Chiropractic \n(Cl. X. 4) are of no relevance to the issue in this matter, as claimant was treated for a neck and low \nback injury by Dr. Smith, with the last date of treatment being April 16, 2018; as recited above, the \ncompensable injury in this case is to claimant’s thoracic spine.  Claimant underwent extensive physical \ntherapy  treatment, received several  epidural  steroid  injections  and  trigger  point injections, and  was \ngiven medication for his pain.  \nThe  most  relevant  records  to  the  issues before  me  are  those  of  Dr. Blankenship,  whom \nclaimant began seeing on March 31, 2025. The chief complaint was “mid back pain,” although as set \nabove, Dr. Blankenship also mentioned claimant’s complaints of neck and low back pain. An MRI for \nthe lumbar spine was ordered, because Dr. Blankenship wanted to see the results of that MRI before \n\nHumphrey-Friend-G908247 \n8 \n \n \nrecommending  further  TESI  injections. He recommended that  claimant  start  on  pool  therapy,  and \nthen active physical therapy at Trinity Rehabilitation, turned claimant over to Dr. Robert Cannon for \npain management, and prescribed trazodone to aid claimant in sleeping. When claimant returned on \nApril 21, 2025, Dr. Blankenship restated the same recommendations but added to the care plan “(1) \nacute low back pain and (2) cervicalgia/neck pain.” \nOn May 22, 2025, Dr. Blankenship wrote a “to whom it may concern” note,  restricting \nclaimant to “no lifting over  25 pounds,  no  excessive  twisting,  bending,  stooping  and  no  crawling, \nclimbing, pushing or pulling. Patient will need to continue restrictions until he follows up from his \ninjection  and  therapy.”  Dr. Blankenship next saw claimant on July  3,  2025. The  impression in  his \noffice notes of that day expressed his frustration with the workers’ compensation carrier:  \n“Dakota is back in the office today. We saw the patient in April of this year. \nI'd  recommend  starting  the  gentleman  on  Celebrex  and Lyrica and  get  him \ndoing pool therapy with the folks at Trinity. I'd also recommended a TESI. I \nrecommended we start him on Trazodone, we did. He paid out of pocket for \nthis. His workers  comp carrier  would  not  start  any  of  his  treatment  process \nwithout  me  seeing  him  back  and  reviewing  his MRI.  First  of  all,  this  is \nridiculous. Dr. Cannon had agreed to do a TESI under conscious sedation. His \nthoracic  spine  has  absolutely  nothing  to  do  with lumbar  spine.  Starting  his \nmedications have nothing to do with his lumbar spine. Really, the only thing I \nneeded to review was a lumbar MRI, and they had basically denied treatment.” \n(Cl. X.1, page 350) \n \nRespondent submitted a peer review report prepared by Dr. Terry Lichtor, who reviewed the \nrecords and expressed his opinion that aqua therapy was unlikely to provide much benefit and would \nnot be considered a necessity. (R. X. 1, pages 26-32). \nADJUDICATION \n \n There are two issues to be decided: First, if claimant is entitled to additional medical treatment \nas directed by Dr. Blankenship for his compensable injury, and second, whether claimant is entitled \nto temporary total disability benefits at this time.   \n\nHumphrey-Friend-G908247 \n9 \n \n \n1.  Did  claimant  prove  he  was entitled  to  additional  medical  treatment for  his  thoracic  spine \ninjury?  \n A  claimant  bears  the  burden  of  proving  entitlement  to  additional  medical  treatment  for  a \ncompensable  injury. LVL,  Inc.  v.  Ragsdale,  2011  Ark.  App.  144,  381  S.W.3d  869.  Once  it  has  been \nestablished that a claimant has sustained a compensable injury, he is not required to offer objective \nmedical evidence to prove entitlement to additional benefits, Ark. Health Ctr. v. Burnett, 2018 Ark. App. \n427,  at  9,  558.  S.W.3d  408,  414. As was  the situation  in Burnett,  the  parties stipulated  that claimant \nsuffered a compensable injury, and as only the thoracic spine injury was the subject of the stipulation, \nI will apply the Burnett standard to that injury. All other claims of physical injury are reserved.  \nIn  his  brief,  claimant specifically  asked  for “additional medical treatment, specifically the \nauthorized treating physician’s prescribed medications, referral for pool therapy, [and] authorization \nof epidural injections...”  While Dr. Blankenship mingled remarks about the treatment of the thoracic \nspine  with  his  proposed  treatment  of claimant’s lumbar  and  cervical spine in  his  notes  for  his \nexamination of claimant in March and April 2025, he clarified in his July 3, 2025, chart entry that the \nmedication,  pool  therapy  and  epidural  injections  had been  recommended  for  the thoracic  spine.  \nRespondent questioned claimant about a notation in his chart that he had told a physician that the \ninjections were not working any more (T.35, Cl.X 1, page 282); claimant testified that he meant the \ntreatment was not working as well. (T.35). That he was willing to go through those injections again is \na clear indication that he believes the pain of the procedure is worth the relief, however limited, he \nexpects to receive.  \nI find Dr. Blankenship’s recommendations to be more  credible  in  light  of  the course  of \ntreatment claimant has received to this time that that of the peer review physician who only spoke to \nthe single issue of the usefulness of pool therapy. As discussed below, there is a question as to whether \n\nHumphrey-Friend-G908247 \n10 \n \n \nclaimant had reached maximum medical improvement (MMI) at some point in his treatment; that is \nirrelevant  to  his  entitlement  to medical benefits now:  “An  injured  party  can  continue  to  receive \nmedical  treatment  for  a  compensable  injury  after  she  has  been  declared  to  have  reach  maximum \nmedical improvement, Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). \n Therefore, claimant's proof is sufficient to support his request for continued medical treatment \nas recommended by Dr. Blankenship for his compensable thoracic spine injury. Claimant should be \nreimbursed for any out-of-pocket expenses for medications prescribed for treatment of his thoracic \nspine.  \n2.  Did  claimant  prove he  was  entitled  to TTD  benefits from  April 21, 2025, to  a  date  to  be \ndetermined?  \nClaimant’s thoracic spine injury is an unscheduled injury. To be entitled to TTD benefits for \nan  unscheduled  injury,  a claimant  must prove  by  a  preponderance  of  the  evidence  that  he  remains \nwithin his healing period and suffers a total incapacity to earn wages. Allen Canning Co. v. Woodruff, 92 \nArk. App. 237, 212 S.W.3d 25 (2005). Claimant argued in the alternative that claimant was either in \nhis  first  healing  period  or  had  entered  a  second  healing  period  (Cl.  Brief,  page  10). This  injury \nhappened almost six years ago; in my review of the records, I did not see any notation that a medical \nprovider had been asked to express an opinion as to whether claimant had reached MMI.  However, \nI find it unnecessary to determine if claimant remained in his healing period for this length of time or \nhad reached  MMI  and  then  entered  a  second  healing  period,  because  I  do  not  find he  proved  he \nsuffers the necessary incapacity to earn wages.  \nFollowing his injury on December 3, 2019, and several weeks of medical treatment, claimant \nwas given modified duty on February 10, 2020 (Cl. X. 1, page 46). On February 24, 2020, his work \nstatus was changed to “unable to work” (Cl. X. 1, page 68). Respondents began paying TTD benefits \n\nHumphrey-Friend-G908247 \n11 \n \n \non February 14, 2020, before claimant was deemed to be unable to work, and continued to pay them \nuntil May 7, 2020. Claimant testified, and I accept as true, that he was instructed by his employer to \nfile for unemployment benefits due to the COVID shutdown; the review claim transactions submitted \nby respondent shows he filed for those benefits on April 20, 2020, and received his last payment on \nJune 20, 2020. (R.X 2, pages 10-17). Claimant testified that he returned to work when he was called \nback  by  Best  Buy, which  appears  to  be  in  early  June 2020,  under  the  same  restrictions  that  Dr. \nBlankenship  assessed  in  April  2025  (Tr.  28-29). Claimant  continued  to  work there  for  almost  four \nyears until he was laid off as part of a companywide reduction in force (claimant did not believe there \nwas such a reduction, but there were media reports about such in April 2024).  He signed a severance \nand general release agreement on May 22, 2024, receiving an undisclosed monetary sum as part of the \nseverance agreement (R. X.2, page 19-39).  \nAfter  he  was  terminated  from  his  employment,  he continued  to  see  Dr.  Holt  and  then  Dr. \nJared Ennis at Interventional Pain Specialist for the rest of 2024, neither of whom stated claimant was \ntotally  incapacitated  from  employment. Dr.  Blankenship  did  not say claimant was  totally  unable  to \nwork, but rather gave the physical restrictions listed above, which were consistent with the restrictions \nclaimant said he worked under for Best Buy for years. There was no explanation as what part of those \nrestrictions were for the compensable thoracic injury as opposed to the lumber and neck pain claimant \npresented. Claimant cited McDonald's & AR McDonald's Self-Insured Trust/Risk Mgmt. Res. v. Key, 2023 \nArk. App. 396 for the proposition that if during the period that the body is healing, the employee is \nunable to perform remunerative labor with reasonable consistency and without pain and discomfort, \nhis temporary disability is deemed total. I find McDonald’s is not applicable to this case.  Claimant failed \nto show there has been a change in his condition that caused him now to have a full incapacity to \nwork that he did not have before he was laid off from Best Buy. He alleged in his post-hearing brief \n\nHumphrey-Friend-G908247 \n12 \n \n \nthat he “has been unable to earn any other income” since he was terminated (Cl. Brief, page 8), but \nthere was no testimony that claimant has attempted to find work within his restrictions. I agree with \nrespondent that  claimant failed  to meet  his  burden  of  proof  that he  was  totally  incapacitated  from \nworking due to his compensable injury.  \nORDER \n \nClaimant has met his burden of proving by a preponderance of the evidence that he is entitled \nto additional medical treatment as recommended by Dr. Blankenship for his compensable thoracic \nspine injury.  \nClaimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \ntemporary total disability benefits from April 21, 2025, to the date of the hearing. \nPursuant to A.C.A. § 11-9-715(a)(1)(B)(ii), attorney fees are awarded \"only on the amount of \ncompensation for indemnity benefits controverted and awarded.\" Here, no indemnity benefits were  \nawarded; therefore, no attorney fee has been awarded. Instead, claimant's attorney is free to voluntarily \ncontract with the medical providers pursuant to A.C.A. § 11-9-715(a)(4). \nRespondent  is  responsible  for  paying  the court  reporter's  charges  for  preparation  of  the \nhearing transcript. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":24944,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G908247 DAKOTA J. HUMPHREY-FRIEND, EMPLOYEE CLAIMANT BEST BUY STORES LP, EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 21, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdal...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","thoracic","neck","lumbar","cervical"],"fetchedAt":"2026-05-19T22:34:48.190Z"},{"id":"alj-H406268-2025-11-21","awccNumber":"H406268","decisionDate":"2025-11-21","decisionYear":2025,"opinionType":"alj","claimantName":"Demekia Mosley","employerName":"North Little Rock School District","title":"MOSLEY VS. NORTH LITTLE ROCK SCHOOL DISTRICT AWCC# H406268 November 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MOSLEY_DEMEKIA_H406268_20251121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOSLEY_DEMEKIA_H406268_20251121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H406268 \nDEMEKIA MOSLEY, EMPLOYEE     CLAIMANT \n \nNORTH LITTLE ROCK SCHOOL DISTRICT, \nEMPLOYER         RESPONDENT  \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nINSURANCE CARRIER/TPA       RESPONDENT  \n \n \nOPINION FILED NOVEMBER 21, 2025 \n \n \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy, on  the 23\nrd\n day  of \nSeptember, 2025, in Little Rock, Arkansas. \nClaimant is represented by Gregory R. Giles, Attorney at Law, of Texarkana, Arkansas. \nRespondent is represented by Guy Wade, Attorney at Law, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on the 23\nrd\n day of September, 2025, to determine the \nissue  of compensability of  an  alleged right  knee injury  that Claimant  contends  is  work \nrelated, reasonable  and  necessary medical  treatment and  specifically  surgery  by  Dr. \nReynolds, attorney fees, with all other issues reserved. The respondents contend that the \nclaimant did not sustain a compensable right knee injury in the course and scope of her \njob or in relation to the injury. A copy of the Pre-hearing order was marked “Commission \nExhibit 1” and made part of the record without  objection. The  Order  provided  that  the \nparties stipulated that the Arkansas Workers’ Compensation Commission has jurisdiction \nof  the  within  claim  and  that  an  employer/employee  relationship  existed  on August  23, \n2024, and at all relevant times. The parties stipulated at the time of the hearing that the \n\nDEMEKIA MOSLEY – H406268 \n2 \n \nClaimant was earning an average weekly wage of $616.64, sufficient for a TTD rate of \n$411.00 and a PPD rate of $308.00.       \n The Claimant’s and  the  Respondent’s  contentions were all set  out  in  their \nrespective  responses  to  the  Pre-hearing Questionnaire  and  made  a  part  of  the  record \nwithout objection. The Claimant contended that she sustained a compensable injury on \nAugust  23,  2024,  that  the  medical  treatment  she  has  received  to  date  has  been \nreasonable, necessary, and related, such that Respondents should be ordered to pay for \nsame, and   contends   that   she   is   entitled   to   the   additional   medical   treatment \nrecommended,  specifically  the  surgery  proposed  by  Dr.  Reynolds,  and  any  additional \nbenefits  that  follow  from  that  procedure,  which  include  temporary  total  and  permanent \npartial disability payments.   \n The  Respondents  contend  that  the  Claimant  did  not  sustain  a  compensable  left \nleg  or  right  knee  injury  in  the  course  and  scope  of  her  job  or  in  relation  to  the  injury.  \nClaimant  was treated  and  released  in  relation  to  the  August  23,  2024,  event, and  no \nadditional treatment is reasonable, necessary, or related, and the Claimant’s claim should \nbe denied and dismissed. \nThe sole witness was the Claimant, Demekia Mosley. From a review of the record \nas a whole, to include medical reports and other matters properly before the Commission \nand having had an opportunity to observe the testimony and demeanor of the witness, \nthe  following findings of  fact  and  conclusions  of  law are made  in accordance  with  Ark. \nCode Ann. 11-9-704. \n \n\nDEMEKIA MOSLEY – H406268 \n3 \n \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That an employer/employee relationship existed on August 23, 2024, and at all \nrelevant times. \n3. That the Claimant earned an average weekly wage of $616.64, sufficient for a \nTTD/PPD rate of $411.00/$308.00 respectively.    \n4. That the claimant has proven by a preponderance of the credible evidence that \nshe sustained a compensable work-related injury to her right knee on August \n23, 2024. \n5. That the claimant is found to be entitled to reasonable and necessary medical \nfor  the  treatment  of  the work-related  right  knee  injury and  specifically the \ntreatment  at  Urgent  Care  and the treatment  by  and recommended  by Dr. \nReynolds. \n6. That the Claimant is entitled to attorney fees pursuant to A.C.A. 11-9-715.   \n7. If  not  already  paid,  the  respondents are ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \n8. All other issues are reserved. \nREVIEW OF TESTIMONY AND EVIDENCE \n The Pre-hearing Order along with the Pre-hearing questionnaires of both parties \nwere  admitted  into  the  record  without  objection. The Claimant  submitted an exhibit of \nrecords consisting of 20 pages, which was admitted without objection. The Respondents \n\nDEMEKIA MOSLEY – H406268 \n4 \n \nsubmitted an exhibit  of records  consisting of 13  pages, that  was  admitted  without \nobjection.  \n The Claimant was the only witness to testify. She was 48 years old at the time of \nthe hearing, graduated from North Little Rock schools in 1995, and attended Philander \nSmith  for  a  year  and  a  half. She  later  took  the  paraprofessional  test, passed  it  in \nDecember of 2018, and became a substitute teacher. She is currently employed with the \nNorth Little Rock School District at the North Little Rock Academy Virtual Program where \nshe  works  as  a  Virtual  Paraprofessional,  starting in  2019. She  testified that she  works \nfrom her office in the North Little Rock Academy building, and the child that she is involved \nwith is at home, working virtually. She had worked in this position for two years prior to \nbeing injured while working for the school district. She admitted she had been previously \ninjured  while  working  for  the  school  district  back  in  2019,  while working  at  Crestwood \nElementary, where she tripped over a student playing volleyball. At that time, she injured \nher  left  knee  and  ended  up receiving a  meniscus  repair, which  did  not resolve the \nmeniscus issue. She then received a second surgery in the spring of 2021, which resulted \nin a “high tibial osteotomy and another meniscus repair,” under the care of Dr. Kirk \nReynolds. Dr. Reynolds ultimately released her with a 25-percent impairment rating for \nthe injury. In regard to her right knee, she only had some aches and pains prior to the \nincident which  she  associated  with  overuse, due  to overcompensating, and she never \nreceived any treatment, even though she complained to Dr. Reynolds. She attempted to \nobtain  treatment for  her  right  knee but stated that Workers’ Compensation denied the \ntreatment recommended. (Tr. 6 – 9)    \n\nDEMEKIA MOSLEY – H406268 \n5 \n \n The  Claimant  was  asked about her  use  of a cane and responded that  she  had \nused it since her release by Dr. Reynolds, after the left-knee injury. She used the cane to \ngive her some stability in her walk and to take pressure off her left knee. After she was \nreleased  in  23,  there  was  no  continuous  treatment. She  admitted  to  some  pain  and \ndiscomfort with the left knee and that she takes Tylenol and Advil to help with the pain.  \nShe also admitted to a certification for medical marijuana, and sought it to help with the \npain, because she needed more than Tylenol and Advil, in regard to her left knee. She \nalso admitted to having fibromyalgia, which was diagnosed about 10 years ago. She has \nmultiple aches and pain which involves her full body, arms, legs, feet, and hands. She \nalso denied ever seeking treatment for her right knee back in 2023. (Tr. 10 - 12) \n In regard to her right knee, the Claimant stated she was not having any symptoms \nor  problems prior  to the  accident,  but  that  on August  23,  2024,  she  was  sitting  at  her \ncomputer  desk  in  her  office where her  chair  rolls  and  teeters. She  was  working  with  a \nstudent, writing on an easel to her left, and reached for an eraser out in front of her, when \nas  she  puts  it, “I feel the chair starts to - - it  tilts  me  kind of  forward  and,  as  it  tilts  me \nforward, the wheels roll and the chair goes back this way and it, like, dumps me out of the \nchair, and I pancake to the ground, the ground. My buttocks - - my buttocks hit the corner, \nthe metal part corner of the easel.” The chair came out from underneath her. (Tr. 13 – 15) \nShe testified that she “just pancaked to the ground, legs flat out in front of me onto my \nbottom.” “The immediate pain was in my buttocks. I could tell that I had maybe punctured \nsomething. I - - I went to the restroom, and I, you know, looked at it. I saw a - - deep gash \nand there was blood.”  She also had a long spot on her left leg, right below her knee. She \nalso stated she was five feet tall and weighed 240 pounds, about the same as at the time \n\nDEMEKIA MOSLEY – H406268 \n6 \n \nof the accident. (Tr. 16) There were no witnesses, since she was in her office. However, \nCoach Bernard heard her fall and came to see what happened. He physically dragged \nher from under the desk, and after going to the bathroom, she then went to the office to \nreport what had happened and completed a Form N at that time, which she personally \nfilled out. It appeared it was reported about 12:30, about 45 minutes after the accident. \n(Tr.  17 – 19) She didn’t mention her left leg scrape in the  report because  she  had  not \nseen it yet, due to it being under her clothing. She also did not mention her right knee \nbecause it was not the acute problem, which was her buttock. She did not go to the doctor \nthat day, but finished her workday, and admitted to not going to the doctor that week. (Tr. \n20) \n “After a few days, about a week - - about  a week,  you  know, the - - the  normal \naches and pains started to subside, you know, pains that you might get from an injury.  \nMy hip and my left buttocks, you know, the pain started easing and going away, and my \n- - cause I had general body aches because I fell, but, you know, once all that started \ngoing away, the knee never stopped. It got worse.” She went on to testify that in regard \nto her knee, there was some clicking and catches when she walked, and it would buckle, \nand  she  would almost  fall. The  pain  was  constant. She then called  Melody  Tipton,  the \nclaims  adjuster  who dealt  with  her  2019  claim.  (Tr.  21) Up  until  that  time,  she had not \ncontacted her in regard to the right knee. The Claimant wanted to make sure she was \nfollowing the protocol, and she was having issues with her knee. They fussed at her for \nnot following the protocol back in 2019. She went on to testify that she told Ms. Tipton \nthat she was having issues with her right knee and that something was going on with it.  \n“It - - it feels a lot like what was going with this left knee, and I need - - I need - - I need \n\nDEMEKIA MOSLEY – H406268 \n7 \n \nsomeone to look at it. (Tr. 22) She was having the “same issues, the same problems, that \nconstant pain, that clicking, the instability where the knee would buckle...” “Ms. Tipton \ntold me that she - - they did not believe that this injury was caused by - - and that they \nwould not cover it.” The Claimant told her she was going to Urgent Care and Ms. Tipton \nsaid that “You probably should go” but that she was not authorizing it. The Claimant felt \nlike she had injured her knee on August 23\nrd\n of 2024, because there had not been any \nother  incidents. She  went  to  Springhill  Urgent  Care  on  September 26\nth\n of 2024, a  little \nmore than a month after the incident. The progress note provided the date of the injury \nwas August 30\nth\n, 2024, and the claimant testified she got her days mixed up. (Tr. 23, 24) \n The  doctor  at  Urgent  Care  examined  her  right  knee,  took  some  X-rays,  and \nreferred her to Dr. Reynolds, an orthopod, because he had taken care of her left knee.  \nShe then saw Dr. Reynolds on October 23\nrd\n of 2024. He examined her knee and reviewed \nthe x-rays. The Claimant insisted on an MRI due to the fact she had learned that x-rays \nwould not show tears and Dr. Reynolds then ordered one. The Claimant testified that she \nhad  not  had  any  treatment  since  the  MRI  findings  with  Dr.  Reynolds, but  that  he  had \nrecommended surgery. (Tr. 25 – 26) She was concerned about being off work due to the \nfact she had been off work for a year with her left knee. She has continued to work for the \nRespondent. In regard to her knee at the time of the hearing, she stated that she had a \nlot of instability, and it buckles at times. It clicks and pops and she is in constant pain.  \nShe positions it a certain way at night, due to the pain being so bad. She asked to have \nthe surgery with Dr. Reynolds. (Tr. 27, 28) \n Under cross examination, the Claimant testified her current method of work started \nshortly after Covid, and that was when she started working from a particular room and \n\nDEMEKIA MOSLEY – H406268 \n8 \n \naddressing  one  student  online, over  the  computer, who  was  at  home. In  2019,  the \nClaimant  admitted  she  was  actually  playing  volleyball  with  some  of  the students when \nshe tore her meniscus. She also admitted she was still having trouble with her left knee, \nthat  the  bones  around  her  kneecap  had  not  healed  correctly,  and  that  she  had  been \ndiagnosed  with  post-traumatic  osteoarthritis. The  Claimant  also  admitted  being  in  an \nautomobile  accident  in  2020, where  she  injured  her  low  back  and that she had  been \ntreating  with  Pain  Treatment  Centers  of  America,  where  she  had  received  steroid \ninjections,  a  nerve  ablation,  and  pain  killers. She  also  admitted  being  diagnosed  with \nfibromyalgia in 2015, a degenerative disc disorder in her neck, and suffering pain daily.  \nShe admitted that she used medical marijuana four or five days out of the week and was \ndealing with all of these issues prior to the incident in 2024.  \nThe Claimant also admitted having some right knee issues prior to the incident in \nAugust of 2024. She admitted talking to Dr. Reynolds about it while he was treating her \nfor her left knee issues and the pain was described as overuse or compensating on her \nright leg because of the issues she was having with her left leg. (Tr. 29 - 35) She admitted \nto using the cane for her left knee issues and that she leaned more to the right than the \nleft, after the first surgery. (Tr. 35) She also admitted filling out the Form N and signing it \non August 23, 2024, shortly after the incident, and that the Form N only mentioned her \nbuttocks but not the scrape on her left knee or her right knee. She also agreed that the \nfirst place she visited for health care following the August 23\nrd\n incident of 2024, was her \nvisit to Urgent Care, a little over a month after the incident. She did not report any pain or \nsoreness associated with her right knee. She went on to testify that “My whole body was \nin pain after the fall up until that time” which was two or three weeks later. (Tr. 36, 37) The \n\nDEMEKIA MOSLEY – H406268 \n9 \n \nother pains “started wearing away” but the knee “was the one pain that did not stop.”  She \nnoticed the knee pain two weeks later and that was when she called Melody Tipton.  (Tr. \n38) \nIn regard to her fall, the claimant admitted the chair went out and she went straight \ndown on the ground. Her legs were out in front of her and she had immediate pain in her \nleft buttocks. She was able to complete her regular hours, however. She also admitted \nproviding the information to Dr. Reynolds and to Urgent Care. She also admitted her first \nvisit  to  Dr.  Reynolds  involving the  right  knee, was  on  October  23\nrd\n,  2024,  almost  two \nmonths after the event. He had last seen her on September 20\nth\n, 2023, for a follow up, \nand she  had some right-knee  pain at  that  time that  was likely  associated  with  her \novercompensation of her right-lower extremity, due to multiple surgeries on the left. She \nalso admitted obtaining her medical marijuana certification around 2022 and using it pretty \nconsistently since that time. (Tr. 39 - 41) She admitted it helped her left knee, back, and \nneck. She called Ms. Tipton because her right knee pain was not going away, and the \nother soreness of her body was wearing off. She was then asked the following question: \nQ:  Well, if you landed on your buttocks with your legs straight out, how did you \ntwist your right knee or your left knee? \n \nA:  I don’t know if I - - When I fell out of the chair, I pancaked straight onto that \nconcrete ground. \n \nThe claimant admitted that her knee was not underneath her, after her fall. (Tr. 42) \nShe also admitted that at the time of the fall, at 11:45 a.m., August 23, 2024, she did not \nnotice a tear, a rip issue, or immediate pain, with her right knee. She did however add \nthat she had soreness. (Tr. 42, 43) \n\nDEMEKIA MOSLEY – H406268 \n10 \n \nOn redirect, the Claimant testified that prior to the August 23, 2024, incident, she \nwas just experiencing a general ache in her right knee, like arthritis. After the fall, the pain \ndid not stop. (Tr. 44) \n The Claimant’s medical exhibit consisted of 21  pages. The initial medical  report \nprovided that the Claimant presented to Springhill Urgent Care on September 26, 2024.  \nThe  report  provided  that  in  regard  to  her  right  knee,  the  positive  abduction  test  was \nabnormal. The Claimant had fallen at work a couple of weeks ago. The x-rays showed \nmild to moderate degenerative changes of the knee. The diagnosis simply provided for \npain in the right knee. (Cl. Ex. 1, P. 2 – 7) \n A  letter dated September  26,  2024, from  Melody  Tipton  of  the Arkansas  School \nBoards Association, provided that the claim for additional medical treatment for the right \nknee was denied, and it was their opinion that her injuries did not arise out of or within \nthe course of her employment which would make it not compensable. (Cl. Ex. 1, P. 8) The \nClaimant then presented to OrthoArkansas on October 23, 2024. The report provided that \nthe Claimant presented with gradually worsening right knee pain, with swelling, instability, \ncatching and clicking since the incident. The report also provided for internal derangement \nof  the  right  knee,  with a differential  diagnosis  providing  for  acute  or  chronic  pain \nassociated with osteoarthritis versus an acute medial meniscus injury. The report went \non to provide that the treating doctor wondered how much of her current pain was coming \nfrom arthritic changes. (Cl. Ex. 1, P. 9 – 12)  \n Later, an MRI of the right knee on November 5, 2024, provided for a horizontal flap \ntear of the right medial meniscus posterior horn with a displaced meniscal flap posteriorly \nand  superiorly.  (Cl.  Ex.  1,  P.  13) On  November  6,  2024,  a  progress  note  from  Dr. \n\nDEMEKIA MOSLEY – H406268 \n11 \n \nReynolds provided for a complex medial meniscus tear of the right knee. (Cl. Ex. 1, P.14 \n– 16) \n The  Respondents  submitted  14  pages  of  records  that  were  admitted  without \nobjection.  The First Report of Injury dated September 26, 2019, involved the previous \nleft knee injury and provided for a sprain of the knee. (Resp. Ex. 1, P. 1) An AR-N Form \ndated August 23, 2024, provided the Claimant was reaching for something on her desk, \nwhich caused the chair to roll out underneath her, and she then fell to the floor. Coach \nBarnard came into her office and helped her off the floor. The report additionally provided \nshe injured her buttocks. (Resp. Ex. 1, P. 3) The Respondents also submitted the same \ntwo medical reports discussed above. Additionally, the Respondents introduced the AR - \nC  Form  dated  November  21,  2024, which provided the Claimant’s injury occurred on \nAugust 30, 2024, and which involved her right knee, when her chair came out from under \nher, and she fell to the floor. (Resp. Ex. 1, P. 13) \n \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving by a preponderance of the evidence that she is entitled to compensation benefits \nfor  the  injury  to her right  knee. In  determining  whether  the  claimant has  sustained her \nburden of proof, the Commission shall weigh the evidence impartially, without giving the \nbenefit of the doubt to either party. Ark. Code Ann 11-9-704. Wade v. Mr. Cavanaugh’s, \n298 Ark. 364, 768 S.W. 2d 521 (1989). Further, the Commission has the duty to translate \nevidence  on  all  issues  before  it  into  findings  of  fact. Weldon  v.  Pierce  Brothers \nConstruction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). \n\nDEMEKIA MOSLEY – H406268 \n12 \n \nHere, the facts  are basically undisputed. The  Claimant  is  a  48-year-old  Virtual \nParaprofessional who works in a private office at the North Little Rock Academy Building \nfor the North Little Rock School District (Respondents). She works with a student at home, \nworking online, and this method of teaching has been going on since the start of Covid.  \nWhile working online with a student on a lesson on August 23, 2024, the Claimant reached \nfor an item and the chair where she was seated scooted or tilted and she fell out of the \nchair onto the floor on her bottom, with the fall making enough noise that the coach in the \noffice next door came in and checked on her and assisted her in getting up. She admitted \nthat her legs were straight out when seated on the floor. Her pain at the time was mainly \nin her buttocks and she immediately went into the restroom to review the damage. She \nthen went and reported the fall to her supervisor and worked the remainder of the day.  \nOver the next few weeks, the pain in her body and primarily her buttocks subsided, but \naccording  to  the testimony  of  the claimant, the  pain  in  her  right  knee  increased. She \ncontacted the women who took care of her previous left knee injury, which was covered \nby  workers’  compensation, and  was  told  that her current injury was  not  a  workers’ \ncompensation claim. She later went to Springhill Urgent Care on September 26, 2024, \nand the x-rays of her right knee showed mild to moderate changes. She was then referred \nto  Dr.  Reynolds  at  OrthoArkansas  on  October  23,  2024. Dr.  Reynolds  had  previously \ntreated Claimant’s left  knee  injury  and  performed  two  surgeries on  her  left  knee, as  a \nresult of a work-related meniscal tear. In regard to the right knee, Dr. Reynolds initially \nopined  that  the  Claimant  was  suffering  from an internal  derangement of the  right  knee \nwith a differential diagnosis of acute or chronic pain, associated with osteoarthritis. The \nClaimant  requested  an  MRI due  to her  personal  knowledge that  certain  tears  did  not \n\nDEMEKIA MOSLEY – H406268 \n13 \n \nappear  on  x-rays, based  upon  her  left  knee  experience. Consequently, Dr. Reynolds \nordered an MRI. The MRI of November 5, 2024, provided for a horizontal tear of the right \nmedical  meniscus,  and  Dr.  Reynold’s  report  of  November  6,  2024,  provided  for  a \nmeniscus tear of the right knee. \nThe Claimant admitted that she was still suffering from left knee pain and that she \nwas  suffering  from  some  right  knee  pain  prior  to  the  fall  from  the  chair  on  August  23, \n2024. However, the Claimant testified that the pain worsened over time after the fall from \nthe chair. She also admitted to taking Tylenol, Advil, and that she possessed a medical \nmarijuana certificate, which she used regularly. She also admitted to lower back pain, and \nFibromylagia.         \nUnder workers’ compensation law in Arkansas, a compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability and must  be  stated  within  a  degree  of  medical  certainty. \nSmith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).    Speculation  and \nconjecture cannot substitute for credible evidence.  Liaromatis v. Baxter County Regional \nHospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).    More  specifically,  to  prove  a \ncompensable injury, the claimant must establish by a preponderance of the evidence: (1) \nan injury arising out of and in the course of employment; (2) that the injury caused internal \nor external harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in A.C.A. 11-9-\n102 (16) establishing the injury and (4) that the injury was caused by a specific incident \nand identifiable by time and place of occurrence. If the claimant fails to establish any of \n\nDEMEKIA MOSLEY – H406268 \n14 \n \nthe requirements for establishing the compensability of the claim, compensation must be \ndenied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d 876 (1997). \nAn  injury for  which  the  claimant  seeks  benefits must  be  established  by  medical \nevidence supported by objective findings which are those findings that cannot come under \nthe voluntary control of the patient. A.C.A. 11-9-102 (16). It is also important to note that \nthe claimant’s testimony is never considered uncontroverted. Lambert v. Gerber Products \nCo. 14 Ark. App. 88, 684 S.W.2d 842 (1985). Under Arkansas Workers’ Compensation \nlaw,  it  is also clear  that an employer takes  the employee as it finds  him or  her and \nemployment  circumstances  that  aggravate  preexisting  conditions  are  compensable. \nHeritage Baptist Temple v. Robinson, 82 Ark. App. 460, 120 S.W.3d 150 (2003).   \nHere, the medical records provide that the Claimant was suffering from a number \nof  maladies prior  to  the  August  23\nrd\n,  2024, incident,  which  included  a  left  knee  work-\nrelated meniscus  tear from  an  earlier  injury. The  Claimant  was  suffering  from  various \npains and complaints, with many based upon osteoarthritis. However, she testified that \nher right knee pain increased as the remainder of the pain she attributed to the fall from \nthe chair subsided. Ultimately, she was diagnosed with a meniscus tear after receiving \nthe requested MRI. Small meniscus tears may have little to no pain. A Claimant is not \nrequired in every case to establish the casual connection between a work-related incident \nand an injury with an expert medical opinion. See Walmart Stores, Inc. v. VanWagner, \n337  Ark.  443,  990  S.W.2d  522  (1999). Arkansas  courts  have  long  recognized  that  a \ncasual relationship may be established between an employment-related incident and a \nsubsequent physical injury, based on evidence that the injury manifested itself within a \nreasonable period of time following the incident so that the injury is logically attributable \n\nDEMEKIA MOSLEY – H406268 \n15 \n \nto  the  incident,  where  there  is  no  other  reasonable  explanation  for  the  injury. Hail  v. \nPitman Construction Co. 235 Ark. 104, 357 S.W.2d 263 (1962). A workers’ compensation \nclaimant bears the burden of proving the compensable injury by a preponderance of the \nevidence. A.C.A. 11-9-102 (4) (E) (i). A compensable injury is one that was the result of \nan accident that arose in the course of his employment and that it grew out of or resulted \nfrom the employment. See Moore v. Darling Store Fixtures, 22 Ar. App 21, 732 S.W.2d \n496  (1987) Cases such  as  the  present  one  presents  problems  that  gradually  and \nimperceptibly progress from issues of law to issues of fact. Here, it is clear that Claimant \nfell from her chair in a work-related incident. The fall made enough noise that the Coach \nnext  door  came  to  check  on  the  Claimant  and then assisted her  in  getting  up. Over  a \nrelatively short period of time, the Claimant’s right knee pain increased per the testimony \nof  the  Claimant. Although  the  Claimant’s  testimony regarding  her knee  pain  is  not \ncontrolling, her testimony appeared believable and she later requested an MRI be ordered \nby Dr. Reynolds, who obliged her. The Claimant had previously developed some personal \nknowledge about a meniscus tear, based upon her compensable left knee meniscus tear.  \nThere is no evidence of any additional intervening accidents. The right meniscus tear that \nwas diagnosed is found to have been diagnosed by an MRI within a reasonable period of \ntime. Based  upon  the  available  evidence  in  the  case  at  bar, the Claimant’s historic \nknowledge of that type of injury, and the finding of the MRI of the left knee, there is no \nalternative but to find that the claimant has satisfied the burden of proof to show that the \ninjury on August 23, 2024, resulted in a right knee meniscus tear and is in fact work related \nand compensable under the Arkansas Workers’ Compensation Act. \n\nDEMEKIA MOSLEY – H406268 \n16 \n \nIn  regard  to  the  medical,  the  Arkansas  Compensation  Act  provides  that  an \nemployer shall promptly provide for an injured employee such medical treatment as may \nbe reasonably necessary in connection with the injury received by the employee.  A.C.A. \n11-9-508(a). The  employee  has  the  burden  of  proving  by  a  preponderance  of  the \nevidence that medical treatment is reasonably necessary. Stone v. Dollar General Stores, \n91 Ark. App. 260, 209 S.W. 3d 445 (2005). Preponderance of the evidence means the \nevidence having greater weight or convincing force. Metropolitan Nat’l Bank v. La Sher \nOil Co., 81 Ark App. 263, 101 S.W.3d 252 (2003). What constitutes reasonably necessary \nmedical  treatment  is  a  question  of  fact  for  the  Commission. Wright  Contracting  Co.  v. \nRandall,  12  Ark.  App.  358,  676  S.W.2d  750  (1984). Here  the  treatment  by  Springhill \nUrgent Care and the treatment by and recommended by Dr. Reynolds is determined to \nreasonably necessary medical treatment. \nHere we have a Claimant who has worked through a previous left knee injury and \ntestified that she was concerned with being off work in regard to the right knee injury. Her \ntestimony is found to be convincing and believable, and she has satisfied the burden of \nproof that she suffered a compensable work-related injury to her right knee on August 23, \n2024, and is entitled to future reasonable and necessary medical treatment for the right \nknee as determined by her treating physician and also the treatment already provided by \nSpringhill Urgent Care and Dr. Reynolds. \nThe claimant and her attorney are entitled to the appropriate legal fees as spelled \nout in A.C.A. 11-9-715.  \n \n\nDEMEKIA MOSLEY – H406268 \n17 \n \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither  party,  it  is  found  that  the  claimant  has  satisfied  her  burden  of  proof  by  a \npreponderance  of  the  credible  evidence  that  her  claim  for  her right knee  injury  is \ncompensable and the treatment by Springhill Urgent Care and also the treatment by and \nrecommended by Dr. Renolds is both reasonable and necessary. Additionally, she is also \nentitled to attorney fees as spelled by the Arkansas Workers’ Compensation Act. This \naward shall bear interest at the legal rate pursuant to A.C.A. 11-9-809. If not already paid, \nthe respondents are ordered to pay the cost of the transcript forthwith. \n IT IS SO ORDERED. \n \n \n \n       ___________________________ \n       JAMES D. KENNEDY \n       Administrative Law Judge","textLength":31218,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H406268 DEMEKIA MOSLEY, EMPLOYEE CLAIMANT NORTH LITTLE ROCK SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 21, 2025 Hearing before Administrative Law Judge, James D. Kennedy, ...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["knee","back","hip","neck","sprain"],"fetchedAt":"2026-05-19T22:34:50.251Z"},{"id":"alj-H501531-2025-11-20","awccNumber":"H501531","decisionDate":"2025-11-20","decisionYear":2025,"opinionType":"alj","claimantName":"Quentin Jackson","employerName":"Mcdonalds Store 26966","title":"JACKSON VS. McDONALDS STORE 26966 AWCC# H501531 November 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Jackson_Quentin_H501531_20251120.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jackson_Quentin_H501531_20251120.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H501531 \n \n \nQUENTIN JACKSON, EMPLOYEE CLAIMANT \n \nMcDONALDS STORE 26966, \n SELF-INSURED EMPLOYER RESPONDENT \n \nRISK MGMT. RESOURCES, \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED NOVEMBER 21, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on November 21, \n2025, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Melissa  Wood,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on November 21, 2025, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  were  Commission  Exhibit  1  and Respondents’ Exhibit 1, \npleadings,  correspondence  and  forms  related  to  this  claim,  consisting  of eleven \n(11) and  nine (9) pages (one (1) index  page  plus  eight (8) pages  of  records), \nrespectively.  See Ark.  Code  Ann. § 11-9-705(a)(1)  (Repl.  2012)(Commission \nmust “conduct the hearing . . . in a manner which best ascertains the rights of the \nparties”). \n\nJACKSON – H501531 \n \n2 \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed on March 11,  2025,  Claimant \npurportedly suffered a seizure  at  work on February  27,  2025, causing  him  to  fall \nonto  the  grill  and burn  his  hands.  According  to the  Form  AR-2 that  was filed on \nMarch   12,   2025, Respondents accepted the   claim and   paid   medical   and \ntemporary total disability benefits pursuant thereto. \n On  March  20,  2025,  Claimant  filed  a  Form  AR-C.    Thereon,  he  checked \nboxes to indicated that he was seeking initial and additional benefits in the form of \npermanent partial disability benefits.  In an email to the Commission on March 26, \n2025,  Rebecca  Gwatney,  the  adjustor  on  the  claim,  confirmed that Respondents \nhad “accepted this claim as a compensable burn to Mr. Jackson’s right and left \nhand[s].” \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nSeptember 23,   2025.      On   that   date,   Respondents’  counsel  entered  their \nappearance  and filed  the  instant  motion,  asking  for  dismissal  of  the  claim  under \n11  C.A.R. § 25-110(d)  (formerly AWCC  R.  099.13) and  Ark.  Code  Ann. § 11-9-\n702 (Repl. 2012).  The file was reassigned to me on September 25, 2025; and on \nSeptember  26,  2025,  my office  wrote  Claimant,  asking  for  a  response  to  the \nmotion within 20 days.  The letter was sent by first class and certified mail to the \nParagould, Arkansas address for Claimant listed in the file and on his Form AR-C.  \nWhile the certified letter was returned to the Commission, unclaimed, on October \n\nJACKSON – H501531 \n \n3 \n \n27,  2025, the  first-class  letter  was  not  returned.    Regardless,  no  response  from \nClaimant to the motion was forthcoming. \n On October  17,  2025,  a  hearing  on  the  Motion  to  Dismiss  was  scheduled \nfor November 21,  2025,  at  10:30  a.m.  at  the Craighead  County  Courthouse in \nJonesboro.    The  notice  was  sent  to  Claimant  via  first-class  and  certified  mail  to \nthe same address as before.  In this instance, the certified letter was claimed by \nClaimant on October 20, 2025, while the first-class letter was not returned. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared  through \ncounsel and argued for dismissal under the foregoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under 11 C.A.R. § 25-110(d). \n\nJACKSON – H501531 \n \n4 \n \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for additional \nbenefits is hereby dismissed without prejudice under 11 C.A.R. § 25-\n110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) (formerly AWCC R. 099.13) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of  it  (including  appearing  at  the November 21,  2025,  hearing  to  argue \nagainst its dismissal) since the filing of his Form AR-C on March 20, 2025.  Thus, \n\nJACKSON – H501531 \n \n5 \n \nthe  evidence  preponderates  that  dismissal  is  warranted  under § 25-110(d).  It  is \nso entered.  Because of this finding, the argument under Ark. Code Ann. § 11-9-\n702 (Repl. 2012) is moot and will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \nthe  foregoing,  I agree  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7399,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H501531 QUENTIN JACKSON, EMPLOYEE CLAIMANT McDONALDS STORE 26966, SELF-INSURED EMPLOYER RESPONDENT RISK MGMT. RESOURCES, THIRD-PARTY ADM’R RESPONDENT OPINION FILED NOVEMBER 21, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on November 2...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:34:41.848Z"},{"id":"alj-H407169-2025-11-20","awccNumber":"H407169","decisionDate":"2025-11-20","decisionYear":2025,"opinionType":"alj","claimantName":"Michael Weaver","employerName":"City Of Mountain Home","title":"WEAVER VS. CITY OF MOUNTAIN HOME AWCC# H407169 November 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WEAVER_MICHAEL_H407169_20251120.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WEAVER_MICHAEL_H407169_20251120.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H407169 \nMICHAEL B. WEAVER, EMPLOYEE     CLAIMANT \n \nCITY OF MOUNTAIN HOME, \nEMPLOYER         RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE  \nWORKERS COMPENSATION PROGRAM,  \nINSURANCE CARRIER/TPA      RESPONDENT \n \nOPINION FILED NOVEMBER 20, 2025 \n \nHearing before Administrative Law Judge, James D. Kennedy, on September 17, 2025, \nin Mountain Home, Baxter County, Arkansas. \nClaimant is represented by Rick Spencer, Attorney at Law, Mountain Home, Arkansas. \nRespondents are represented  by Mary  Edwards,  Attorney  at  Law, North Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 17\nth\n day of September, 2025. At the time of the \nhearing,  the  parties  stipulated  that  the Claimant’s average weekly wage was $792.72, \nwhich would result in a temporary total disability rate of $528.00 and a permanent partial \ndisability  rate  of  $396.00. The primary issue  before  the  Commission  at  the  time  of  the \nhearing was compensability, with the claimant contending he sustained a gradual-onset \ninjury to his lower back after performing his required work-related duties for over 29 years. \nIf the Claimant satisfies the issue of compensability, then the issues of reasonable and \nnecessary medical treatment by Doctor Lance Lincoln and Pain Management by Doctor \nIra Chapman are before the Commission, plus the issue of attorney fees.  \nThe Respondents contended that the injury was denied in its entirety and that the \nClaimant  cannot satisfy the  elements of  proof for  a  compensable  gradual-onset  back \n\nMichael B. Weaver – H407169 \n \n2 \n \ninjury. Further, if the injury is found to be compensable, that the Notice provision of A.C.A. \n11-9-701(a)(1) is  applicable. Respondents also raised  the  statute  of  limitations as  a \ndefense.  \nA Prehearing Order dated July 15\nth\n, 2025, provided that the parties stipulated that \nthe Arkansas Workers’ Compensation Commission has jurisdiction of the within claim and \nthat an employer/employee/carrier relationship existed on or about April 1\nst\n, 2023, and all \nrelevant times, when the Claimant alleges he sustained a gradual onset injury to his right \nhip, groin, and lower back.         \n The Prehearing  Order  and  the Claimant’s and Respondent’s contentions are all \nset out in their respective responses to the Pre-hearing Questionnaire and made a part \nof the record without objection. The witnesses for the Claimant were Melissa Weaver, the \nwife of the Claimant, and Michael Weaver the Claimant. The Respondents called Susan \nStrop,  Alma  Clark,  and  Kirsten  Skiver-Sanders.  From  a  review  of  the  record  which \nincluded medical reports and other matters properly before the Commission and having \nhad an opportunity to observe the testimony and demeanor of the witnesses, the following \nfindings of fact and conclusions of law are made in accordance with Ark. Code Ann. 11-\n9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That an employer/employee/carrier relationship existed on April 1, 2023, and \nat all relevant times.  \n\nMichael B. Weaver – H407169 \n \n3 \n \n3. That the Claimant earned an average weekly wage of $792.72, sufficient for a \nTTD rate of $528.00 and a PPD rate of $396.00.  \n4. That Claimant has failed to prove by a preponderance of the evidence that he \nsustained   a   work-related   injury   on   the   specific   date   of   April   1,   2023. \nAdditionally, there is no alternative but to find that the Claimant has also failed \nto  prove  by  a  preponderance  of  the  credible  evidence that  he established a \nwork-related gradual onset injury to his lower back, his right hip, and groin, with \nmedical  evidence  supported  by  objective  findings sufficient  to  satisfy  the \nrequirements of the Arkansas Workers’ Compensation Act.    \n5. That, consequently, all other issues are moot. \n6. If  not  already  paid,  the  respondents are ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The  Pre-hearing  Order  along  with  the  Pre-hearing  questionnaires of the parties \nwere  made  part  of  the  record without  objection.  The Claimant’s  Exhibit  One, which \nconsisted of medical records, was admitted into the record without objection. In addition, \nthe  Claimant  also submitted Exhibit  Two  which  consisted  of  the  deposition  of  the \nClaimant, which was also admitted into the record without objection. The Respondent’s \nExhibit One, which also consisted of medical records, was also admitted into the record \nwithout objection. The Respondents Exhibit Two consisted of non-medical records, which \nwas admitted into the record without objection. Additionally, both parties submitted briefs \nat the request of the Respondents, and the briefs are “Blue Backed” and made part of this \nopinion. \n\nMichael B. Weaver – H407169 \n \n4 \n \n Melissa  Weaver,  the  wife  of  the  Claimant,  testified  that  the  Claimant  received a \nradiation  treatment  the morning prior  to  the hearing. They  had been  married 31  years, \nand the Claimant had worked for the City of Mountain Home for over 20 years. He started \nout  as  a  meter-reader,  then  the Vactor truck,  and  then worked  at  the warehouse.  The \nVactor truck has a big hose which goes down into the sewer. Claimant then went to the \nwarehouse and had to lift like 100 pounds. He couldn’t stand very long and his lower back \nhurt. (Tr. 8 – 11) “He would have to miss some workdays because his back was bothering \nhim.”  He was no longer able to do yard work. She thought his employer fired him. She \nalso stated that his primary-care physician was Doctor Lance Lincoln for many-years and \nClaimant has been going to the Interventional Pain Clinic and Dr. Ira Chapman. (Tr. 12 – \n14) \n Under cross-examination, Ms. Weaver admitted she had not worked for the City of \nMt. Home and had not seen the Claimant perform his job. She also admitted that he had \nbeen diagnosed with cancer and that the cancer was not work related. (Tr. 14, 15) \nThe Claimant was then called as a witness. He testified he had a total retirement \nof 29 years. He noticed that his back was hurting while he was working on the Vactor \ntruck.  He was  required to  drag  about  600  feet  of one-inch  hose off  the  truck  to  reach \nmanholes. One day while dragging the hose up a hill, he “noticed my back pretty much \ngave out on me.” He testified he then went to his supervisor and stated he needed to \nleave  and  see  his  doctor  due  to  his  back  hurting.  (Tr.  16,  17)  He then went  to  see  a \ndoctor who made a referral to a doctor in Springfield, about fifteen plus years ago, while \nprobably in his late thirties. He was basically diagnosed with a bulging disc which took \nhim out  of  work for about  three  weeks.  He  then transferred to  the TV van, where  he \n\nMichael B. Weaver – H407169 \n \n5 \n \nwould lower a camera which was on a tractor system that weighed about 45 pounds, and \nhe would lower it about 10 to 15 times a day, and this was when he noticed his back \nhurting again. At times he would just sit in the van. (Tr. 18)   \nHe also worked part time in the inventory cage, where he was kind of performing \ndouble duty and noticed his back was constantly in pain. That was when he went to see \nDr. Lincoln, who referred him to Dr. Chapman, probably within the last two years “before \nI retired.” He went on to state that he had been with Dr. Chapman ever since and had \nbeen  diagnosed  with  spinal  stenosis,  degenerative  disc  disease,  and  arthritis in his \nspine. In the inventory cage, he had to move thousands of different parts that weighed \nbetween less than one pound to over 500 pounds. (Tr. 19) He went on to state there was \na long period between the injury 15 years ago when he was in his late thirties when he \nwasn’t having any more difficulties with his back. It was just an off and on type of thing.  \nThe pain then became every day, an everyday ache, and then it got worse and became \nconstant. “Matter of fact, the day that they were coming to fire me, I took off that day \nbecause I was having back issues.” He said they came the next day, and he retired. He \nwas in constant pain by then and couldn’t do anything at home such as yard work, and \nit  took  a  while  to  even  wash  dishes.  He  was  asked  if  he  knew  that  his  condition  was \nrelated  to  his  employment  and  responded,  “I  was  assuming,  yes.”  (Tr.  20,  21)  He \nadmitted that he had conversations with the doctor as to what could possibly cause some \nof these issues. He was then specifically asked if he had anything to do in regard to the \n“To Whom it May Concern” letters and he responded, “Not really.”  He also admitted that \nhe was suffering with Stage 4 kidney cancer. (Tr. 22) \n\nMichael B. Weaver – H407169 \n \n6 \n \nUnder  cross  examination,  the  Claimant  admitted  that  he  was  alleging  that  he \ninjured his back while working for the city. He agreed that he stated in his deposition that \nhe noticed his back hurting while he was dragging a hose in the Vactor truck, where he \nworked back in 2008 to 2010 more or less. He also admitted going to Baxter Regional \nMedical Center at the time and that he may possibly have received an MRI on February \n5,  2010,  but  did  not  remember  for  sure.  He  did  recall  receiving  a  steroid  injection  on \nFebruary 14, 2010. He also admitted presenting to Garrettson Chiropractic at the time, \nand seeing  Doctor  Lincoln,  his  PCP,  in  2010, who referred him to  a  specialist  in \nSpringfield who took him off work for three weeks. He admitted that he was aware he \nwas having back problems back in 2010, but that he did not file a workers’ compensation \nclaim at the time. He started having problems again while he was working on the ATV \nvan and agreed that he never requested to file a workers compensation complaint at that \ntime and that he never told anybody at work that his problems were work related while \nworking on the ATV van. (Tr. 23 -27)  \nIn regard to the Inventory Clerk position, he testified that he thought he started a \nlittle later than 2019.  He had worked for the city for 23 years, and that while working as \nan inventory clerk, he admitted that he never told anyone that his back pain was related \nto his job duties. He also admitted that in the Inventory Clerk position, he had tools to \nhelp him lift heavier objects, which included a forklift and a dolly. He also admitted that \nhe also had the option of asking for someone to assist him, but went on to state there \nusually wasn’t anyone around to assist. (Tr. 27, 28) \nHe also admitted seeing Doctor Chapman starting in approximately 2022 or 2023, \nin regard to his back issues and that the notes in regard to the first visit with Dr. Chapman \n\nMichael B. Weaver – H407169 \n \n7 \n \nwere probable correct where it stated that the onset of the complaint was in August of \n2022.  He then added that the pain got worse.  In regard to the February 28, 2023, report \nwhich provided for the “same symptoms and findings when (you) saw the neuro in \nSpringfield back in 2010” and he responded that this had never been discussed with him.  \nHe also admitted he never filed a workers’ compensation claim at the time. (Tr. 29) He \ntestified he told his supervisor that he was seeing a doctor and doing physical therapy \ndue  to  his  hurting back, but  never  stated  it  was  related  to  work  in  any  way.    He  also \nadmitted he voluntarily retired from work on April 25\nth\n, 2023, due to some social media \nusage and that his retirement had nothing to do with any sort of back complaints. (Tr. 29, \n30) \nThe  Claimant  continued  seeing Doctor  Chapman  after retirement, and was \nprescribed Tizanidine and Tramadol, and also received two lumbar medial range blocks.  \nThe Claimant admitted he was not aware that with the exception of the causation report, \nDoctor Chapman’s records made no mention regarding the Claimant’s back injury being \nrelated to working for the Respondent. (Tr. 31)   \nOn  redirect,  the  claimant  testified  that  Doctor  Lincoln  was  his  primary  care \nphysician for over 20 years, and they talked on a regular basis during the last years of \nhis work, while his condition worsened.  When asked if Doctor Lincoln was aware of all \nhis lifting issues at work, he responded yes. “We had a lot of discussion, yes.”  He also \ntestified he  told  Doctor  Chapman  about  his  work  issues  that were getting  worse  over \ntime.  He denied having any thing to do with the “To Whom It May Concern” letters. (Tr. \n32, 33)  He also testified that he had told his supervisor Kirsten Skiver and later Lonnie \nWilliams about his back hurting when he was working for the Respondent. (Tr. 34) \n\nMichael B. Weaver – H407169 \n \n8 \n \nAgain, on recross examination, the Claimant was questioned about the “To Whom \nIt May Concern” letters and he admitted he did not work for the Water Department as an \nInventory  Clerk  for  29  years.  He  agreed  he  had  only  worked  for  the  Respondent  for \ntwenty-three (23) years. (Tr. 35) \nAt  this  point,  Claimant rested, and  the  Respondents  called  Sue  Edwards  Strop.  \nShe testified she was the HR Coordinator for the Respondent and had been with the city \nsince April of 2021, and was the HR Coordinator in April of 2023. She went on to testify \nthat she first met with the Mayor and Lonnie Williams in regard to productivity concerns \nregarding the Claimant and his use of computers on April 24, 2023, and then on April 25, \n2023, they were scheduled to again meet with him, and he came in that morning and \nsubmitted  his  retirement.  He  formally  retired  on  April  25,  and  to  her  knowledge,  his \nretirement had nothing to do with back issues. She stated that she was not aware of any \ninability  of  the  Claimant  that  would  prevent  him  from  performing  his  job  and  no \naccommodations  were  requested. She testified  that  she first  became  aware  of  the \nClaimant’s claimed back injury when she was on vacation and received a phone call from \nthe Respondent’s Chief  Deputy  Treasurer,  Astina  Hicks, on  November  4,  2024,  who \nsubmitted  the  First  Report  of  Injury  or  Illness  to  the  Municipal  League  Workers’ \nCompensation. She went on to testify that they did not receive an N Form, an accident \nreport,  or  a  witness  statement  from  the  Claimant and never received a supervisor’s \nreport. (Tr. 39-41) \nUnder cross examination, Ms. Strop stated that in her duties in charge of HR for \nthe Respondent, no one had previously come to her about his injury. (Tr. 42) \n\nMichael B. Weaver – H407169 \n \n9 \n \nThe Respondent then called Alma Lee Clark, who testified she had worked for the \ncity for 34 years as of September 25, 2025, and that she currently worked as the Director \nof  Finance  and  Treasury,  a  position  she  has  held  since  April  26,  2022.  She  had \npreviously worked as the Water Director for the Respondent for sixteen (16) years, and \nprior to that worked as the Manager of the Wastewater Plant for nine and a half years \nand knew  pretty  well  about  the  job  duties  of  each  position.  She  testified  that  Meter \nReaders used hand-helds and performed manual readings at that time, plus doing meter \nchange  outs  and  getting  down  inside  the  meter  box  to  do  a  reading. In  regard  to  the \nVector truck, the employee would drive or ride in the truck and clean out sewer lines.  \nThe  Vector  truck was hydraulic  with  controls  out  front  with  a hose reel  that you  could \ndrop down and turn the water on and then flip a switch that pulled the line back in. You \nremoved the manhole cover which exposed everything. To replace the manhole cover, \nyou could pull the lid with a manhole hook to where it’s over the hole or give it a push \nwith your foot. In regard to the CCTV (ATV) van, there was a working winch which was \nmostly electronically controlled, and a camera that was maybe about five or six inches, \nand you would place the camera on a braided wire and place it down in the manhole.  \nFirst you had to remove the manhole lid and set it down where it was facing the tool line \nso  you  could camera  the  line. You had electronic  remote controls, or  you could run  it \nfrom the truck and which pulls the line. You could also bring it back with the same controls \nand it was mostly automatic and would take pictures. “The only - - the only manual part \nwould be to get the camera down into the manhole and starting it up in a line” and of \ncourse pulling the manhole lid and placing it back. (Tr. 43 – 46) She was not aware of \nthe claimant having any back problems as a Meter Reader, while working in the Vactor \n\nMichael B. Weaver – H407169 \n \n10 \n \ntruck,  and  on  the  CCTV (ATV) van.  She  testified  he had never  asked  about  filing  a \nworkers’ compensation claim with the Respondent. She also testified she was not aware \nof the Claimant going to the doctor or taking time off in regard to back issues during his \nentire time while working for the Respondent. The first notice from the Claimant claiming \na back injury was in the last part of 2024, November 4, she thought. (Tr. 47, 48) \nThe Respondents then called Kirsten Skiver, who testified that she was the Billing \nManager for the Water Department where she had worked, for just shy of 20 years. At \none time, she worked as the supervisor for the Inventory Clerk position and supervised \nthe Claimant. The Claimant probably started working as a fill-in for the Inventory Clerk \nand started in that position around April of 2019. She stated the Claimant was very good \nwith computers, so they initially did some house cleaning. “In inventory, you order, you \nreceive, and then you disburse, but we also did some process streamlining, we did some \n- - a lot of work in the computer maintain the parts and the descriptions and, you know, \nkind of making them where they were all the – same, like specific parts.  And then we \nset up bin locations, and so probably 75 percent of the work that Brent (Claimant) and I \ndid was computer.”  \n She went on to testify about the remaining five to 10 percent would be leg work, \nsetting up bin locations and then going out into the warehouse and placing stock numbers \nand the bin locations on the card and setting that up for the product outside as well as for \nthe  product  inside.  The  Claimant  would  place  a  large  order  once  a  week  and  it  would \narrive  the  latter  part  of  the  week.  During  the  week,  he  would  disburse  the  parts  to  the \nvarious  crews.  If  someone  needed  a  part,  sometimes  they  would  go  back  with  the \nClaimant and get the part and sometimes he would just bring them the part. Sometimes \n\nMichael B. Weaver – H407169 \n \n11 \n \nthe  part  would  be  returned.  If  it  was  a  larger  part,  it  usually  came  in  on  a  pallet  and a \nforklift,  a  telehandler,  or  a  skid  steer  was  used  to  move  it.  The  larger  parts  were  kept \noutside and whoever needed it “could back their utility vehicle around to the back and \neither they could help load it, or they have a winch on their truck that they could load it \nwith, or they could use the forklift and - - you know, whatever they were taking to the job.” \n(Tr. 49 – 52) \n A photo of a movable ladder with high shelves (Respondents Exhibit Two, Page \n19)  was  shown  Ms.  Skiver  and  she stated that  product  could  be  placed  on  the  high \nshelves and the claimant had access to the ladder.  She was then shown a picture of a \nforklift with a dolly in front and Ms. Skiver testified the Claimant had access to those items.  \nShe was also shown pictures of pallets and testified they were removed from the vendor, \nusually  via  forklifts.  She  was  also  shown  pictures  of  a  pallet  jack,  a  manual  lifter, and \nsome “light little trucks” and Ms. Skiver stated that the claimant had access to these items.  \nPrior to the Claimant working as the Inventory Clerk, a woman, Lisa Knight, worked in the \nposition and Ms. Skiver thought that she may have worked in that position for 17 years. \nShe went on to testify that the Claimant never told her of any issues with his back and \nthat she was not aware of the Claimant having difficulty in physically performing the work \nof the Inventory Clerk position nor of going to the doctor or taking time off from work for \nany back-related issues. She was not aware of any accommodations for the Claimant in \nregard to his position. Her first notice of the Claimant contending he had sustained a back \ninjury at work was this year. (Tr. 53 – 58)      \n\nMichael B. Weaver – H407169 \n \n12 \n \n Under cross examination, Ms. Skiver testified that although she could not reach \nthe top shelf, the Claimant could. When placing something on the top shelf, it was easier \nto use the shelf thing. (Tr. 59) \n The Claimant was then recalled. He admitted that the witnesses were not aware \nof issues with his back at the time of the hearing but stated that his Director gave him a \ncushion to sit in his office and that she knew he was having back issues. He denied that \nhe was ever asked about his back when he was having issues walking. He thought he \nwas given the cushion back in 2020 or 2021. No one ever suggested that he had to file a \nworkers’ compensation case. (Tr. 60, 61) \n Under  cross  examination,  the  Claimant  admitted  that  he  had  never  requested a \nworkers’ compensation claim in his 23 years while working for the city and that he had \nnever told anybody employed by the Respondent that his problems were work related. \n(Tr. 62) \n On  redirect,  the  Claimant testified that  the  Respondent  was  aware  of  his  back \ncondition. (Tr. 62) \n The Claimant submitted medical records that consisted of twenty-one pages plus \nand  index which were  admitted  into  the  record  without  objection.  A  report  from \nInterventional Pain Management Associates dated February 13, 2023, provided that the \nClaimant was referred by Doctor Lance Lincoln with complaints of pain in his lower back, \nmid back, hips, and thighs and stated that the Claimant had been experiencing this pain \nfor eight months with the onset of the pain being gradual over time. The assessment was \nchronic pain syndrome. (Cl. Ex. 1, P. 1 – 3) The Claimant returned to Pain Management \nAssociates on February 28, 2023, with a complaint of mid and lower back pain radiating \n\nMichael B. Weaver – H407169 \n \n13 \n \nto  both hips and  occasionally  into  both  lower  extremities  distal to the  knee. The  report \nfurther  provided the  Claimant  noted the  pain  had progressed  to  the  point  that  he was \nhaving significant difficulty performing even rudimentary activities of daily life without the \nuse of a mobility cart. The report also provided that the Claimant could be considered for \nopioid  management  in  order  to  improve  his  overall  quality  of  life  and  functional  status, \nand that physical therapy was recommended. (Cl. Ex. 1, P. 4 – 13) The Claimant returned \nto Interventional Pain Management Associates on October 24, 2023, for follow up status \npost first and second diagnostic lumbar medial branch block. The Claimant provided that \nboth the first and second diagnostic medial branch block helped lower back pain more \nthan 80% for the first few days but that the pain gradually returned, and he continued to \nnote   significant   neuraxial   low   back   pain.   The   most   recent   lumbar   MRI   showed \ndegenerative lumbar spondylosis without spinal stenosis but with foraminal stenosis with \nfacet degenerative hypertrophy evident. (Cl. Ex. 1, P 14 – 18) \n The exhibit also contained a “To Whom It May Concern” letter signed by Doctor \nLance Lincoln dated October 27, 2024, that provided the Claimant worked for the Water \nDepartment for approximately 29 years as an inventory clerk and his job required him to \nreceive  and  put  up  products  lifting  over  100  pounds  per  day.  As  a  result  of  the  above \nlisted  job  duties  on  a  daily  basis,  the  Claimant  sustained  a  gradual  onset  injury  to  his \nlower back due to the heavy lifting on a continual basis. The report went on to provide \nthat “It is my belief within a reasonable degree of medical certainty (51% or greater) that \nthe major cause of his need for medical treatment to his back is a result of his employment \nwith the Water Department. (Cl. Ex. 1, P. 19)  A second “To Whom it May Concern “ letter \ndated  October  29,  2024,  and  signed  by  Dr.  Ira  Chatman, provided  that  the  Claimant \n\nMichael B. Weaver – H407169 \n \n14 \n \nworked for the Water Department for 29 years as an Inventory Clerk and again as the \nresult of his job duties, the Claimant sustained a gradual onset injury to his lower back \ndue to the heavy lifting he had to perform on a continual basis and it was Dr. Chatman’s \nopinion and belief within a reasonable degree of medical certainty (51% or greater) that \nthe major cause of for the Claimant’s need for medical treatment to his back was a result \nof his employment with the Water Department. (Cl. Ex. 1, P. 20)   \n The Claimant also introduced his deposition into the record which was admitted \nwithout objection and consisted of 46 pages. The testimony of the deposition was very \nsimilar  to  the  testimony at the  hearing.  A  summary  of  various  points  of  the  deposition \nprovided that the Claimant denied any lifting when he worked as a meter reader but stated \nthat he did a lot of bending. (Cl. Ex. 2, P.11) While working as a meter reader, he denied \nany issues with his back. (Cl. Ex. 2, P. 12) The claimant next worked on the Vactor truck \nwhere  they  clean  sewer  lines  using  a  vacuum  system.  He  lifted  manhole  lids  which \nprobably weighed 40 to 50 pounds. They at times used a manhole hook. To clean the \nsewer lines, they  took six  to  eight  feet  long  tubes that  weighed five  or  six  pounds and \nattached them together and to the vacuum system. He also testified they dragged a one-\ninch hose that was about 600 feet long and that was attached to a spinning drum on the \ntruck. This  was  when  his  back  problems  started  back  in  2008  to  2010.  After  that,  he \nworked for the sewer pipe inspection van and there was lifting, bending, and stooping.  \nThere was a camera on a tractor weighing 45 to 50 pounds which they would manually \nlower into a manhole, and this action required bending. We would do this multiple times \na day, anywhere between 14 to 16 times a day. He worked at this job for five or six years. \n(Cl. Ex. 2, P. 13 – 16) \n\nMichael B. Weaver – H407169 \n \n15 \n \n He then started working as an Inventory Clerk, starting in 2018 or 2019, where he \nworked  until  he  retired and where  he  lifted items  that  weighed  up  to  500  pounds  and \nwhere he used a forklift. He stated he had retired because Sue in HR had paperwork for \nhim to sign and he had been written up a couple of times for being on Facebook and they \nwere  going  to  terminate  him, and he retired. (Cl.  Ex.  2,  P.  17 – 21)  The  Claimant  also \nadmitted that at times he mowed and ran a weed-eater. He used a zero-turn mower or a \nsmaller riding mower and did this every two to three weeks. He was asked about lifting \nover 100 pounds daily and responded that they were the parts he lifted as an inventory \nclerk. He was also lifting over 100 pounds cumulative on the sewer inspection van. (Cl. \nEx. 2, P. 22, 23) \n The first time he noticed he was having problems with his back was when he was \nworking on the Vactor truck and was dragging the hose. He did not recall having an MRI \nin February of 2010. He remembered first going to Garretson Chiropractic after he noticed \nback issues. He was also seeing Doctor Lincoln who referred him to a doctor in Springfield \nand who he saw one time. The Springfield doctor instructed him to do stretching exercises \nbut  ordered  no  physical  therapy.  Gradually  over  time,  his  back  got  worse. He  took  off \nabout three weeks and then returned to work. When he returned to work, his back was \nokay. (Cl. Ex. 2, P. 24 – 27)  \n He would often cinch up where he “couldn’t move” while at work and he did this \nquite a few times. He testified he told his supervisor, Kevin Tupperville, who retired and \nis no longer with the city, about his back. He also told his partner on the Vactor truck who \nis now deceased. He admitted he never asked to file a workers compensation claim. His \nback was hurting about the same while working on the TV van and as an inventory clerk. \n\nMichael B. Weaver – H407169 \n \n16 \n \n(Tr.  28,  29) He  testified  in  his  deposition  that  he  told  Alma  Clark,  Kirsten  Skiver, and \nLonnie Williams about his back. He also admitted he never requested to report his back \nas a workers’ compensation claim. (Cl. Ex. 2, P. 30, 31) \n The  Claimant  testified  in  his  deposition  that  he  had seen  his  family  physician, \nDoctor Lance Lincoln, through the years for his back issues. Doctor Lincoln had referred \nhim to Doctor Ira Chapman, when he was asked what Doctor Lincoln had done for him in \nregard  to  his  back.  He  also  testified  that  Doctor  Lincoln  had  not  prescribed  any \nmedications for his back. Doctor Chapman prescribed the Tizanidine and Tramadol.  The \nclaimant  was  specifically  asked  if  Doctor  Lincoln  had  done  anything  else  for  the \nClaimant’s back other than refer him to Doctor Chapman.  This  could  include  physical \ntherapy or an MRI or anything like that, and the Claimant replied that Doctor Lincoln did \nnot.  Doctor  Chapman  scheduled him  for  an  MRI and had  him  do  physical therapy  but \nnever mentioned surgery. The Claimant denied seeing anyone else in regard to his back. \n(Cl. Ex. 2, P. 32 – 35) \n Respondents  Exhibit One  consisted  of  twelve  pages of medical  records plus  an \nindex and was admitted into the record without objection. An ED Physician Note dated \nJanuary 25, 2010, provided that the Claimant presented with back pain, with the onset \nbeing three days ago. The type of injury was stated as “none.” The note provided that two \nviews  of  the  lumbosacral  spine  were  submitted.  Under  impression,  the  report  provided \nthat there were unremarkable views of the lumbosacral spine. (Resp. Ex. 1, P. 1, 2) A \nCertificate to return to work was provided on January 29, 2010, with no restrictions. (Resp. \nEx. 1, P. 3) Later, an MRI Report for the Lumbosacral Spine, dated February 5, 2010, \nand  ordered  by  Doctor  Lance  Lincoln, provided  under  impression  that  there  was  a  left \n\nMichael B. Weaver – H407169 \n \n17 \n \nparacentral disc protrusion at L4-L5 which caused moderate left neuroforaminal stenosis \nand contacted and displaced the exiting L4 nerve root and went ahead and stated that a \nneurosurgical consultation should be considered. The report also provided for multilevel \ndegenerative facet hypertrophy and ligamentum flavum thickening, and that there was a \nminimal concentric disc bulge at L5 – S1. (Resp. Ex. 1, P. 4)   \nA Procedure Note dated February 15, 2010, and electronically signed by Doctor \nJames  Newton, provided  that  the  Claimant  was  referred by Dr.  Lance  Lincoln, for a \ntherapeutic trial of a lumbar epidural steroid injection for his discogenic low back pain and \nleft hip radiculopathic pain secondary to an L4-5 herniated disc pulposus. The Claimant \nstated that approximately seven weeks ago, he was lifting something and had an acute \nonset of left thigh radiculopathy and that he describes as pain burning in nature. (Resp. \nEx. 1, P. 5, 6) \n An ED Physician Note dated April 5, 2021, provided among other matters that the \nclaimant suffered from acute back pain with sciatica. (Resp. Ex. 1, P. 7-10) A later medical \nreport provided that the Claimant returned to Baxter Regional Medical Center on January \n12,  2023,  for  an  exam  in  regard  to  lumbar  stenosis  with  neurogenic  claudication.  The \nadmitting doctor was Doctor Lincoln, and the report provided under impression, for diffuse \ndegenerative changes including spurring and disc narrowing which had progressed from \n13 years ago. A CT or an MRI would better evaluate disc herniation. An MRI of the lumbar \nspine dated July 18, 2023, provided there were mild posterior disc bulges at L1-2, L3-4, \nL4-5  and  L5 – S1.  There was  no  fracture,  subluxation,  lytic, or  bistatic bony  lesion.  A \nvertebral hemangioma was noted in the L4 vertebral body. No disc herniation was seen.  \nFacet  degenerative  hypertrophy  was  seen  bilaterally  at  L3-4,  L4-5,  and  L5-S1,  but  no \n\nMichael B. Weaver – H407169 \n \n18 \n \nspinal stenosis was seen. There was mild foraminal stenosis on the left at L4-5 and L5-\nS1 and on the right at L5-S1. Under impression, the report provided Claimant suffered \nfrom  degenerative  lumbar  spondylosis  without  spinal  stenosis,  with  mild  foraminal \nstenosis on the left at L4-5 and mild bilaterally at L5-S1. (Resp. Ex. 1, P. 11, 12) \n The  Respondents  also  submitted  33  pages  of  non-medical  records  that  were \nadmitted without objection. Claimant submitted a letter of resignation on April 25, 2023.  \n(Resp. Ex. 2, P. 15) The AR-C Form received on November 4, 2024, provided that the \nClaimant sustained  a gradual  onset  injury  to  his  lower  back  due to  the  required heavy \nlifting up to 100 pounds daily over his 29-year employment at the water department. The \nAR-C Form provided  that it was  signed  on  October  30,  2024, and  that  the  date  of  the \nonset of the gradual onset injury was April 1, 2023.  (Resp. Ex. 2, P. 16) The First Report \nof Injury provided that the date of the notification of the Administrator was November 6, \n2024. (Resp. Ex. 2, P. 17) The exhibit also contained various photographs that showed \nfork-lifts, a platform ladder somewhat similar to one seen in large retail box stores, desks, \nmanhole covers, water boxes, bins, boxes, lift jacks, and other items. (Resp. Ex. 2, P. 18 \n– 33)  \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving by a preponderance of the evidence that he is entitled to compensation benefits \nfor his injuries under the Arkansas Workers’ Compensation Law. In determining whether \nthe claimant has sustained his burden of proof, the Commission shall weigh the evidence \nimpartially, without giving the benefit of the doubt to either party.  Ark. Code Ann 11-9-\n704.   Wade  v.  Mr. Cavanaugh’s, 298  Ark.  364,  768  S.W.  2d  521  (1989).  Further,  the \n\nMichael B. Weaver – H407169 \n \n19 \n \nCommission has the duty to translate evidence on all issues before it into findings of fact. \nWeldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). \nA compensable injury is an accidental injury causing internal or external physical \nharm to the body arising out of and in the course of employment which requires medical \nservices  or  results  in  disability  or  death.  An  injury  is normally “accidental” only if it is \ncaused  by  a  specific  incident  and  is  identifiable  by  time  and  place  of  occurrence. See \nA.C.A. 11-9-102(4)(A)(i). However, a spinal injury (neck or back) which is not caused by \na specific incident, or which is not identifiable by time and place of occurrence, does not \nhave  to  meet  the  specific  incident  requirement under  A.C.A.  11-9-102(4)(A)(ii)(b). It  is \nalso noted that a spinal injury that is claimed to be a gradual onset injury does not have \nto satisfy the requirement for rapid and repetitive motion. However, a back or neck injury \nmust still be established by medical evidence supported by objective findings. See A.C.A. \n11-9-102(4)  (D). Objective  findings  are  those  findings  which  cannot  come  under  the \nvoluntary control of the patient. See A.C.A. 11-9-102(16)(A)(i).   \nHere, the  Claimant primarily contends  that  he  is  suffering  from  a  gradual  onset \ninjury to his lower back that occurred while working for the Respondent. He agreed that \nhe testified in his deposition that his back was hurting while dragging a hose when working \nwith  the  Vactor  truck back  in  2008 to  2010, more  or  less.  He  also  admitted  seeing  his \nPCP  in  2010, who  referred  him  to  a  specialist  in  Springfield  for his back  issues. The \nClaimant was off work for three weeks and he admitted not filing a workers' compensation \nclaim at that time. He also testified that he started developing back problems again when \nworking with the CCTV (ATV) van, but again never filed a claim for workers' compensation \nbenefits.  He later went to work as the Inventory Clerk and admitted he never told anyone \n\nMichael B. Weaver – H407169 \n \n20 \n \nthat his back pain was related to work, but did tell people that he had lower back issues.  \nHe also admitted that he started seeing Doctor Chapman in approximately 2022 or 2023.  \nIn regard to the two “To Whom It May Concern” letters, he admitted he had not worked \nfor the Water Department for twenty-nine (29) years as stated in both letters and had only \nworked for the Respondent for twenty-three (23) years, total, in different job descriptions.  \nIt also must be noted that when the Claimant was asked if he knew that his condition was \nrelated to his employment, he responded, “I was assuming, yes.” \nThe Respondent’s witnesses testified that they were not aware of the Claimant’s \nback issues until he filed his Form AR- C on November 4, 2024, which was over a year \nafter  he  submitted  his  letter  of  resignation  on  April  25,  2023.    In  regard  to  medical \nevidence,  an  ED  physician  note, dated  January  25,  2010,  provided  that  the  Claimant \npresented with back pain and the injury was “none” and returned the Claimant to work \nwith no restrictions on January 29, 2010.  The report in regard to an MRI that was ordered \nby Doctor Lincoln and dated February 5, 2010, provided there was a left paracentral disc \nprotrusion at L4-5 which caused moderate left neuroforaminal stenosis which contacted \nand displaced the exiting L4 nerve root and additionally provided that the Claimant should \nconsider  a neurosurgical  consultation.    Additionally,  there  was  multilevel  degenerative \nfacet hypertrophy and ligamentum flavum thickening with a minimal concentric bulge at \nL5 – S1.   The  claimant  received epidural  steroid  injections for his discogenic  low  back \npain and left hip pain secondary to an L4-5 herniated disc pulposus on February 15, 2010.  \nNearly thirteen years later, on January 12, 2023, the Claimant returned to Baxter Regional \nMedical Center for a finding of lumbar stenosis with neurogenic claudication.  The medical \nreport provided for diffuse degenerative changes including spurring and disc narrowing \n\nMichael B. Weaver – H407169 \n \n21 \n \nwhich had progressed from thirteen (13) years earlier. Later, an MRI of the lumbar spine \ndated July 18, 2023, provided there was mild posterior disc bulges at L3-4, L4-5, and L5-\nS1. Facet degenerative hypertrophy was seen bilaterally at L3-4, L4-5, and L5-S1, with \nmild foraminal stenosis on the left at L4-5 and L5-S1. There were no objective findings in \nthe actual medical reports to connect any of the findings to a work related back injury, \nonly degenerative changes. The only items that provided any opinion as to the cause of \nthe injuries were the two “To Whom it May Concern” letters from two treating physicians \nwith the letters dated two days apart, and which were identical. Both “To Whom it May \nConcern” letters stated  that  it  was  their opinion  with  a  reasonable  degree  of  medical \ncertainty (51% or greater) that the Claimant had sustained a gradual onset injury and the \nmajor cause for the Claimant’s need for medical treatment was a result of his employment \nwith the Water Department for approximately 29 years. No medical records nor objective \nfindings  from either  physician supported these  findings. Speculation  and  conjecture \ncannot substitute for credible evidence. Liaromatis v. Baxter County Regional Hospital, \n95 Ark. App. 296, 236 S.W.3d 524 (2006). It is also important to note that the claimant’s \ntestimony is never considered uncontroverted. Lambert v. Gerber Products Co., 14 Ark. \nApp. 88, 684 S.W.2d 842 (1985) \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, there is no alternative but to find that the Claimant has failed to establish a \nspecific  incident  that  is  identifiable  by  time  and  place of occurrence in  regard  to \nsustaining a work-related  injury  on  the  date  of  April  1,  2023.  Additionally, there  is  no \nalternative but to find that the Claimant has also failed to prove by a preponderance of \nthe credible evidence that the Claimant established a work-related gradual onset injury \n\nMichael B. Weaver – H407169 \n \n22 \n \nto his lower  back,  right  hip,  and  groin,  with  medical evidence  supported  by  objective \nfindings, sufficient to satisfy the requirements of the Arkansas Workers’ Compensation \nAct.  Consequently, all other issues are moot. If not already paid, the respondents are \nordered to pay the cost of the transcript forthwith. \nIT IS SO ORDERED.  \n      ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":41489,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H407169 MICHAEL B. WEAVER, EMPLOYEE CLAIMANT CITY OF MOUNTAIN HOME, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE WORKERS COMPENSATION PROGRAM, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 20, 2025 Hearing before Administrative Law Judge, James D...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["back","hip","lumbar","knee","herniated","fracture","neck","repetitive"],"fetchedAt":"2026-05-19T22:34:44.030Z"},{"id":"alj-H407806-2025-11-20","awccNumber":"H407806","decisionDate":"2025-11-20","decisionYear":2025,"opinionType":"alj","claimantName":"Freddy Washington","employerName":"Goodyear Tire & Rubber Company","title":"WASHINGTON VS. GOODYEAR TIRE & RUBBER COMPANY AWCC# H407806 November 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WASHINGTON_FREDDY_H407806_20251120.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WASHINGTON_FREDDY_H407806_20251120.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        CLAIM NO.: H407806 \n \nFREDDY E. WASHINGTON,   \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nGOODYEAR TIRE & RUBBER COMPANY,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                  \n \nLIBERTY MUTUAL INSURANCE  \nCOMPANY, CARRIER/TPA                                                                                 RESPONDENT  \n                                                                                                   \n \n                                            OPINION FILED NOVEMBER 20, 2025    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Texarkana, Miller County, \nArkansas. \n  \nClaimant, pro se, failed to appear at the hearing. \n \nRespondents represented  by the  Honorable Karen  H.  McKinney, Attorney  at  Law, Little  Rock, \nArkansas. \n \n                                                   STATEMENT OF THE CASE      \n \n This  matter  comes  before  the  Commission following a motion  to dismiss filed by the \nrespondents.    A  hearing  on  the  motion  was  conducted  on November  18,  2025,  in Texarkana, \nArkansas.  Presently the sole issue for determination before the Commission is whether this claim \nshould be dismissed due to the Claimant’s failure to prosecute it under Ark. Code Ann. §11-9-702 \n(Repl. 2012), and/or Arkansas Workers’ Compensation Commission Rule 099.13 (now codified at \n11 C.A.R. § 25-110 (d)). \n             The  record  consists of the November  18,  2025,  hearing transcript and documentary \nevidence.  In that regard, Commission’s Exhibit 1 encompassing five (5) actual pages, as it has \nwhich has been marked accordingly, and Respondents’ Exhibit 1 consisting of nine (9) numbered \npages was thus designated.   \n\nWashington – H407806 \n \n \n2 \n \n Reasonable notice of the dismissal hearing was tried on all the parties in the manner  \nestablished by applicable law.   \nNo testimony was taken at the hearing.  \n                        Background \nThe record reflects the following procedural history: \n On March 17, 2025, the claimant’s then attorney of record in this matter filed a Form AR-\nC, with the Commission, wherein he alleged that the claimant sustained an accidental injury, on \nNovember 23, 2024, while working  for  the respondent-employer.  According  to  this document, \nthe claimant alleged that he sustained compensable injuries to his head and back.  On this form, \nthe claimant requested initial benefits in  the  form  of every  benefit allowed under  law for  this \ncategory of benefits.    \nThe respondents filed an initial Form AR-2, with the Commission on November 26, 2024.  \nAt this time, respondents accepted this case as a compensable claim.  The Respondents filed with \nthe Commission, an amended AR-2 on December 9, 2024, making adjustments to the claimant’s \naverage weekly wage.   \n Subsequently, the claimant retained legal counsel to represent him in this matter.  On the \nclaimant’s attorney filed  a  letter with  the  Commission asking  that  he  be removed as counsel  of \nrecord for the claimant in this matter.  There was no objection to the claimant’s attorney’s motion \nto withdraw from representing the claimant in this case.  Therefore, the Full Commission entered \nan order on April 23, 2025, granting the claimant’s attorney motion to withdraw from representing \nhim in this matter.   \nSince the filing of the Form AR-C, the Claimant has failed to prosecute or otherwise pursue \nhis claim for workers’ compensation benefits.  Specifically, it has been more than six (6) months \n\nWashington – H407806 \n \n \n3 \n \nsince the filing of the Form AR-C; but thus far, the claimant has made no bona fide request for a \nhearing with respect to his claim.   \nAs  a  result,  on October  9,  2025,  the  respondents’ attorney filed  with  the Commission a \nRespondents’ Motion to Dismiss this claim due to a lack of prosecution of it by the claimant.   \nSubsequently, on October 13, 2025, my office wrote to the claimant and requested a written \nresponse to the motion within twenty (20) days.  Said letter was mailed to the claimant by both \nfirst-class and certified mail to the address listed by the claimant with the Commission.   \nPer  tracking  information  received  from  the United  States Postal  Service, the  dismissal \nhearing notice sent by certified mail to the claimant was delivered to his home address listed above \nand left with an individual.  The signature of the recipient of said letter is illegible.  However, the \nletter sent by first-class mail has not been returned to the Commission.   \nOn November 4, 2025, my office sent a Notice of Hearing to the parties scheduling this \nmatter for a dismissal hearing on November 18, 2025, at the Commission.   Said hearing notice \nwas sent to the claimant by both first-class and certified mail to the same address as before.   \nThe Postal Service returned the notice of hearing to Commission on November 6, 2025, \nwhich was mailed to the claimant via certified mail.  However, the notice sent by first-class mail \nhas not been returned to the Commission.  Thus, the above evidence preponderates that reasonable \nnotice of the dismissal hearing was made upon the claimant as required under law.  \n Therefore, the dismissal hearing was conducted on the respondents’ motion to dismiss this \nclaim as formerly scheduled.  Despite having received notice of the dismissal hearing, the claimant \ndid  not appear  at  the  hearing.  However,  the respondents  appeared at  the  hearing through their \nlawyer.  The respondent’s counsel argued, among other things, for dismissal of this claim because \nthe claimant  has made  no bona fide  request for  a hearing or taken  any action to prosecute or \n\nWashington – H407806 \n \n \n4 \n \notherwise resolve his claim since the filing of the Form AR-C in March 2025.  Specifically, the \nattorney for respondents moved for dismissal without prejudice, under the authority of Ark. Code \nAnn. §11-9-702, and/or Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110(d)). \n            Adjudication  \nThe statutory  provisions and Arkansas Workers’ Compensation Rule applicable to the \nrespondents’ motion for dismissal of this claim for workers’ compensation benefits are outlined \nbelow:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, Ark. Code Ann. §11-9-702(d) states:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \n Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110(d)), states: \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n\nWashington – H407806 \n \n \n5 \n \nThe evidence shows that the claimant has failed to respond to the written notices of this \nCommission, and he did not appear at the hearing to object to the dismissal motion.  Moreover, \nsince the filing of the Form AR-C, which was done in March 2025, the claimant has not made a \nbona  fide  request  for  a  hearing  with  respect  to his claim.    Considering  all  the  foregoing,  I  am \ncompelled  to  conclude  that  the claimant  has  abandoned  his claim for workers’ compensation \nbenefits.   \nAccordingly,  based  on my  review  of  the documentary  evidence,  and  all  other  matters \nproperly  before  the  Commission,  I  find  that  the respondents’ motion  to dismiss  this  claim is \nwarranted  under  the  provisions  of Ark.  Code  Ann.  §11-9-702 (a)(4), §11-9-702 (d),  and Rule \n099.13 (now codified at 11 C.A.R. § 25-110(d)), of this Commission.  Said dismissal is without \nprejudice, to the refiling of this claim within the limitation period specified by law.   \n                           FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. In March  2025,  the claimant’s  attorney filed  a Form  AR-C with  the \nCommission in   this   matter   asserting   his entitlement to workers’ \ncompensation  benefits  due  to  an alleged accidental  injury occurring  on \nNovember 23, 2024. \n  \n 3.         Since the filing of the Form AR-C, more than six (6) months have passed,  \n  and the claimant has not made a bona fide request for a hearing.    \n \n 4. The respondents filed with the Commission a motion to dismiss this claim,  \n                        for which a hearing was held. \n \n5.         Reasonable notice of the motion to dismiss and hearing was had on all the \nparties.  \n \n\nWashington – H407806 \n \n \n6 \n \n6.         The evidence preponderates that the respondents’ motion to dismiss this  \n            claim for want of prosecution is warranted.   \n \n7.         That the respondents’ motion to dismiss is hereby granted pursuant to Ark.  \n Code Ann. §11-9-702 (a)(4), §11-9-702 (d), and Commission Rule 099.13,      \n(now codified at 11 C.A.R. § 25-110(d)), without prejudice, to the refiling   \nof the claim within the specified limitation  period.   \n \nORDER \nIn  accordance  with  the  foregoing  findings  of  fact  and  conclusions  of  law,  this  claim is \nhereby dismissed without prejudice, pursuant to Ark. Code Ann. §11-9-702 and Commission Rule \n099.13 (now  codified  at  11 C.A.R.  §  25-110(d)), to  the  refiling  within  the  specified  limitation \nperiod.        \nIT IS SO ORDERED. \n   \n                                  \n                                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":11583,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H407806 FREDDY E. WASHINGTON, EMPLOYEE CLAIMANT GOODYEAR TIRE & RUBBER COMPANY, EMPLOYER RESPONDENT LIBERTY MUTUAL INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 20, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in T...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:34:46.109Z"},{"id":"alj-H502820-2025-11-19","awccNumber":"H502820","decisionDate":"2025-11-19","decisionYear":2025,"opinionType":"alj","claimantName":"Martin Block","employerName":"Signature Aviation","title":"BLOCK VS. SIGNATURE AVIATION AWCC# H502820 November 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Block_Martin_H502820_20251119.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Block_Martin_H502820_20251119.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H502820 \n \n \nMARTIN BLOCK, EMPLOYEE CLAIMANT \n \nSIGNATURE AVIATION, \n EMPLOYER RESPONDENT \n \nSTARR INDEMN. & LIAB. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED NOVEMBER 19, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on November 18, \n2025, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Rick  Behring,  Jr.,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on November 18, 2025, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted into evidence was Respondents’ Exhibit 1, pleadings, correspondence \nand forms related to this claim, consisting of 10 numbered pages.  Also, in order \nto  address  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1)  (Repl. \n2012)(Commission  must  “conduct  the  hearing  .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe record documents from the Commission’s file on the claim, consisting of nine \n\nBLOCK – H502820 \n \n2 \n \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \nArk.  App.  LEXIS 549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed on May 6,  2025,  Claimant \npurportedly suffered an injury to one or both of his shoulders at work on April 29, \n2025, while he was operating a fuel truck.  According to the Form AR-2 that was \nfiled on May   6,  2025, Respondents controverted the   claim in   its   entirety.  \nRespondents’ counsel entered his appearance before the Commission on August \n1, 2023. \n In  an  email  to  Commission  Legal  Advisor  Michael  St.  Clair  on  June  24, \n2025, which bears the instant claim number on its subject line, Claimant wrote: \nMr. Michael, \n \nGood  afternoon  sir.    As  per  our  phone  conversation  I’d  [like]  to \nappeal the decision of denial of my workers[’] comp case.  If you \nneed anything further please reach out to me and I’ll provide it for \nyou. \n \nSincerely, \n \nMartin Block \n \n In  response  to  the  Legal  Advisor  Claimant  Questionnaire  received  by  the  \nCommission on June 26, 2025, Claimant requested mediation.  But in an email to \nthe Commission on August 15, 2025, Respondents’ counsel indicated that his \nclients  were  not  interested  in  pursuing mediation.   As  a  result,  St.  Clair  informed \n\nBLOCK – H502820 \n \n3 \n \nthe parties by email that same day that he would have the matter assigned to an \nadministrative law judge. \n The file was assigned to me on August 18, 2025.  On August 21, 2025, my \noffice  sent  preliminary  notices  and  prehearing  questionnaires  to  the  parties.    On \nSeptember  11,  2025,  my  assistant,  Catherine  Ferguson,  emailed  Claimant  to \ninform  him  that  his  completed  preliminary  notice  and  prehearing  questionnaire \nresponse were overdue.  He replied that same day: \nGood morning Ms. Ferguson, \n \nI’m  going  to  have  to  politely  pass  on  this  as  I’ve  already  been \nforced  by  [C]oncentra  to  pay  the  medical  bills  associated  with  my \nwork injury or they were going to send it to collection.  So I’m sorry \nto  say  but  going  forward  I  will  not  be  pursuing  this  matter  any \nlonger.  I’ve always thought that worker’s comp insurance  was  to \nhelp  out  when  an  employee  gets  injured  on  the  job  performing  a \nrequired task but I apparently stand very incorrect.  I’d like to take \nthe  time  to  thank  everyone  at  the  Arkansas  Workers[’] \n[C]ompensation [C]omission for their time and effort in assisting me \nbut again I’m no longer pursuing this matter. \n \nSincerely, \n \nMartin Block \n \nBased on this, the prehearing process was ended and the file was returned to the \nCommission’s general files. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nSeptember 16, 2025.  On that date, Respondents filed the instant motion, asking \nfor  dismissal  of  the  claim  under 11  C.A.R. § 25-110(d)  (formerly AWCC  R. \n099.13).   The  file  was  reassigned  to  me  on  September  19,  2025;  and  on  that \n\nBLOCK – H502820 \n \n4 \n \nsame date, my office wrote  Claimant, asking  for  a  response  to the  motion  within \n20  days.    The  letter  was  sent  by  first  class  and  certified  mail  to  the Bauxite, \nArkansas address that Claimant had  used  on  all  his  correspondence  with  the \nCommission.    While   the certified   letter was   returned   to   the   Commission, \nunclaimed, on October   16,   2025, the   first-class   letter   was   not   returned.  \nRegardless, no response from Claimant to the motion was forthcoming. \n On October  17,  2025,  a  hearing  on  the  Motion  to  Dismiss  was  scheduled \nfor November  18,  2025,  at  10:30  a.m.  at  the Commission  in  Little  Rock.    The \nnotice was sent to Claimant via first-class and certified mail to the same address \nas before.  In this instance, the certified letter was claimed on October 20, 2025, \nby  someone  with  an  illegible  signature,  while  the  first-class  letter  was  not \nreturned. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared  through \ncounsel and argued for dismissal under the foregoing authority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nBLOCK – H502820 \n \n5 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under 11 C.A.R. § 25-110(d). \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial \nbenefits is hereby dismissed without prejudice under 11 C.A.R. § 25-\n110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) (formerly AWCC R. 099.13) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \n\nBLOCK – H502820 \n \n6 \n \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n No  Form  AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing  a \n“formal claim.”  While a Form AR-1 was filed in this case, that does not suffice to \ninstigate a claim.  I recognize, however, that other means exist to file a claim for \ninitial benefits other than a Form AR-C.  In Cook v. Southwestern Bell Telephone \nCompany,  21  Ark.  App.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of \nAppeals  discussed  the  minimum  requirements  necessary  for  correspondence  to \nthe Commission to constitute a claim for additional compensation for the purpose \nof  tolling  the  applicable  Statute  of  Limitations.    There,  the  court  held  that  an \nattorney's  correspondence  notifying  the  Commission  that he  has  been employed \nto assist a claimant in connection with unpaid benefits is sufficient to state a claim \nfor  additional  compensation  where  the  correspondence  also  lists  the  claimant's \nname, the employer's name and the Commission file number.  See also Garrett v. \nSears  Roebuck  and  Company,  43  Ark.  App.  37,  858  S.W.2d  146  (1993).    My \nreview of the Commission’s file discloses a document sufficient to constitute a \nclaim for initial benefits under Cook, supra.  That document is Claimant’s June 24, \n2025, email requesting an “appeal”—discussed above. \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \n\nBLOCK – H502820 \n \n7 \n \npursuit  of  it  (including  appearing  at  the November  18,  2025,  hearing  to  argue \nagainst its dismissal) since his file was returned to the Commission’s general files \non September 11, 2025—which, again, was triggered by his stated failure that he \nwas no longer interested in pursuing his claim.  Thus, the evidence preponderates \nthat dismissal is warranted under § 25-110(d). \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \nthe  foregoing,  I agree  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":10706,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H502820 MARTIN BLOCK, EMPLOYEE CLAIMANT SIGNATURE AVIATION, EMPLOYER RESPONDENT STARR INDEMN. & LIAB. CO., CARRIER RESPONDENT OPINION FILED NOVEMBER 19, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on November 18, 2025, in Little Rock,...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:34:37.528Z"},{"id":"alj-H408020-2025-11-19","awccNumber":"H408020","decisionDate":"2025-11-19","decisionYear":2025,"opinionType":"alj","claimantName":"Yuliana Lorenzo","employerName":"Dollar Tree Stores, Inc","title":"LORENZO VS. DOLLAR TREE STORES, INC. AWCC# H408020 November 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Lorenzo_Yuliana_H408020_20251119.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Lorenzo_Yuliana_H408020_20251119.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H408020 \n \nYULIANA CARDENAS LORENZO, \nEMPLOYEE                                                                                                              CLAIMANT \n \nDOLLAR TREE STORES, INC., \nEMPLOYER                                                                              RESPONDENT  \n \nAIU INSURANCE. CO., \nCARRIER                                                                                                             RESPONDENT \n \nSEDGWICK CLAIMS MGMT, \nTHIRD-PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED NOVEMBER 19, 2025 \n \nHearing conducted on Friday, October 17,  2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant is Pro Se, of Memphis, Tennessee.  \n \nThe Respondents were represented by Ms. Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non July 28, 2025.  A hearing on the motion was conducted on October 17, 2025, in Forrest City, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a DC 18 3\nRD\n SHIFT. The date for \nClaimant’s  alleged  injury  was  on December 9,   2024. She   reported   her injury   to \nRespondent/Employer on the same day as the incident. Admitted into evidence was Respondents’ \nExhibit 1, pleadings, and correspondence, consisting of 9 pages, and Commission Ex. 1, pleadings, \nand U.S. Mail return receipts, consisting of 7 pages, as discussed infra. \n\nLORENZO, AWCC No. H408020 \n \n2 \n \nThe record reflects on December 12, 2024, a Form AR-1 was filed purporting that Claimant \ninjured  her  right  ankle  while  attempting  to  pick-up  a  heavy  box.  On  December  17,  2024,  the \nRespondents filed an AR-2, neither accepting nor denying compensability. On January 24, 2025, \nClaimant  through  her  then-attorney,  Mark  Peoples,  filed  an AR-C  purporting  that  Claimant \nsustained work-related injury to her right foot. On January 30, 2025, Respondents filed  another \nForm AR-2 with the first day of disability as December 1, but this date appears incomplete and \ninaccurate. On  March  6,  2025,  Claimant’s  then-attorney,  Mark  Peoples,  filed  a  Motion  to \nWithdraw as Counsel of Record. The Full Commission granted Mr. People’s motion on April 9, \n2025.    \nRespondents filed a Motion to Dismiss due to Claimant’s failure to prosecute her claim on \nJuly 28, 2025. The Claimant was sent, on August 8, 2025, notice of the Motion to Dismiss, via \ncertified  and  regular  U.S.  Mail,  to  her last  known  address.  The  certified motion notice  was not \nclaimed by Claimant as  noted on the August 23,  2025, return receipt. This notice was  also sent \nregular U.S. Mail on August 8, 2025, but did not return to the Commission. The Claimant did not \nrespond to the Motion, in writing, as required. Thus, in accordance with applicable Arkansas law, \nthe Claimant was mailed due and proper legal notice of Respondents’ Motion to Dismiss hearing \ndate  at  her current  address  of  record  via  the  United  States  Postal  Service  (USPS),  First  Class \nCertified  Mail,  Return  Receipt  Requested,  and  regular  First-Class  Mail,  on September  8,  2025. \nThe certified notice was claimed as noted by the September 17, 2025, return receipt. Likewise, the \nhearing notice sent regular U.S. Mail was not returned to the Commission. The hearing took place \non October 17, 2025. And as mentioned before, the Claimant did not show up to the hearing. \n \n \n\nLORENZO, AWCC No. H408020 \n \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the October 17, 2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was claimed by Claimant, per the return postal notice bearing the September 17, 2025, date. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \n\nLORENZO, AWCC No. H408020 \n \n4 \n \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed her Form \nAR-C on January 24, 2025. Since then, she has failed to request a bona fide hearing. Therefore, I \ndo find by the preponderance of the evidence that Claimant has failed to prosecute her claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      __________________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6170,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H408020 YULIANA CARDENAS LORENZO, EMPLOYEE CLAIMANT DOLLAR TREE STORES, INC., EMPLOYER RESPONDENT AIU INSURANCE. CO., CARRIER RESPONDENT SEDGWICK CLAIMS MGMT, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED NOVEMBER 19, 2025 Hearing conducted on Friday, Oc...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:34:39.705Z"},{"id":"alj-H208823-2025-11-18","awccNumber":"H208823","decisionDate":"2025-11-18","decisionYear":2025,"opinionType":"alj","claimantName":"John Baker","employerName":"Rigid Industrial Services, LLC","title":"BAKER VS. RIGID INDUSTRIAL SERVICES, LLC AWCC# H208823 November 18, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BAKER_JOHN_H208823_20251118.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAKER_JOHN_H208823_20251118.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                             WCC NO.: H208823 \n  \nJOHN BAKER, EMPLOYEE CLAIMANT \n \nRIGID INDUSTRIAL SERVICES, LLC,   \nEMPLOYER                                                                                                            RESPONDENT    \n                                        \nSIRIUSPOINT AMERICA INSURANCE/ \nSIRIUSPOINT AMERICA INSURANCE CO.,  \nCARRIER/TPA                                                                                                          RESPONDENT  \n \n \nOPINION FILED NOVEMBER 18, 2025 \n             \nHearing held before Administrative Law Judge Chandra L. Black, in Texarkana, Miller County, \nArkansas. \n \nClaimant represented by the Honorable Gregory R. Giles, Attorney at Law, Texarkana, Arkansas. \n \nRespondents represented  by the  Honorable Lee  J.  Muldrow, Attorney at  Law,  Little  Rock, \nArkansas. \n \n \n          STATEMENT OF THE CASE \nOn August 20,  2025, the  above-captioned  claim  came  on  for a hearing in  Texarkana, \nArkansas.  Previously,  a pre-hearing  telephone  conference  was  held in  this  matter on June 18, \n2025.  A Pre-hearing Order was entered that same day pursuant to the telephone conference.  Said \norder was admitted into evidence along with the parties’ pre-hearing information filings without \nobjection as Commission’s Exhibit 1. \nStipulations \nDuring the pre-hearing telephone conference, and/or at the hearing, the parties agreed to \nthe following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \n         claim. \n\nBaker – H208823 \n2 \n \n 2. That Rigid had a company policy that if the job was over 40 miles from the Alanta \n shop, employees would be paid for one hour of drive time per round trip in a day.  \n Employees  would  still  clock  in  upon  commencing  their  work  at  the  jobsite  and \n clock out when they left the jobsite at the end of the day.  Drive time would then be \n added by the payroll department at the end of the week based on the job locations.  \n All employees were paid the same policy whether they drove or did not drive to get \n to the jobsite.     \n 3. That  travel  pay  was  not  based  on  computation  of  actual  travel  time  or  actual \n expenses incurred.  \n 4. That Mr. Baker’s [the claimant] hourly rate of pay on October 7, 2022, was $26.00 \n an hour.  \n5.        Therefore, all other issues not litigated are reserved under the Arkansas Workers’  \n \n           Compensation Act.  \nIssue(s) \n The  parties  agreed  to  litigate  the  following  issue: Jurisdiction: Whether  the “going and \ncoming rule” precludes the claimant  from being  a covered employee, thereby making  an  action \nunder workers’ compensation law the exclusive remedy.  In other words, whether the claimant was \nwithin the course and scope of his employment.   \nContentions \n \n The claimants’ contentions and respondents’ contentions are set out in their respective \nresponse to the Pre-hearing Questionnaire.  Said contentions are as follows: \nClaimant: Jurisdiction: The Claimant contends in this case that his injuries occurred when \nhe was not within the course and scope of his employment when he was off the clock and asleep \nin the passenger seat at the time the accident occurred.  The “coming and going rule” in Arkansas \n\nBaker – H208823 \n3 \n \nprecludes workers’ compensation for injuries sustained while an employee is traveling to and from \nwork.  In this case, Mr. Baker contends he was not paid to travel to the job site, and Mr. Baker was \nnot  doing anything directly  or  indirectly to advance his employer’s at the time of his accident. \n Claimant contends that he was not within the course and scope of his employment when \nhe suffered his injuries on October 7, 2022, and given the circumstances the claimant contends the \nWorkers’ Compensation Commission is not the proper jurisdiction for him to pursue remedy for \nthe injuries sustained. \n Respondents: Respondents contend that at the time of his accident, the claimant was “in \nthe course of his employment” and by virtue of traveling from one work site to another, he was \nfurthering the interest of his employer. \n At the beginning of the hearing, the respondents further contend that the issue is whether \nor not this accident falls within the ruling in Ambetter v. Arkansas Workers’ Compensation Act.   \n    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nAfter  reviewing  the record  as  a  whole, including  the  medical  reports, the documentary \nevidence, and other matters properly before the Commission, and after having had an opportunity \nto listen to the testimony of the witnesses and observe their demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law in  accordance  with  Ark.  Code  Ann. §11-9-704  (Repl. \n2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.     The proposed stipulations set forth above are reasonable and hereby accepted. \n \n          3.         The claimant was performing employment services at the time of his motor vehicle  \n           accident of October 7, 2022, because he was required by Rigid to travel from one  \n  \n           work site to another.         \n \n\nBaker – H208823 \n4 \n \n          4.         All issues not litigated herein or addressed in this Opinion are reserved under the Act.    \n                \nSummary of Evidence \nThe witnesses were the claimant, Rodney Ammons, Laurie Walker, Josh Turner, and Mike \nHanner. \n            The  record  consists  of  the  hearing  transcript  of August 20, 2025, and the exhibits held \ntherein.  In addition to the Pre-hearing Order discussed above, the exhibits admitted into evidence \nin  this  case  were Claimant’s Exhibit 1 include the claimant’s wage records  consisting  of  nine \npages;  Joint  Exhibit  1  consists  of  one  page  of    Additional  Proposed  Stipulations;  Respondents’ \nExhibit  1 consists of two pages entitled Texas Workers’ Compensation Work Status Report; \nRespondents’ Exhibit No. 2 includes the Form AR-C; Respondents’ Exhibit No. 3 encompasses \nthree pages of paystubs; Respondents’ Exhibit No. 4 includes one page, a medical record; and  the \nparties filed Post-Hearing Trial Briefs, these have been blue-backed and made a part of the record \nas Commission’s Exhibit 2.    \nTestimony \n The claimant, aged 61, worked for the respondent employer on October 7, 2022.  He lives \nin Queen City, Cass County, Texas.  The claimant has his GED and some college.  He confirmed \nthat the rest of his training has basically been by on-the-job-training.  The claimant has obtained, \non his own, the skills and training on how to perform the employment duties of a millwright.  He \nis also self-taught on how to do maintenance work on equipment through working various jobs.  \nAs of the date of the hearing, the claimant worked for Dusty Reeves, pouring concrete, and doing \nthe forming and finishing.   \n On October 7, 2022, the claimant was employed by Rigid Industrial Services, LLC.  The \ncompany’s office is in Atlanta, Cass County, Texas.  He confirmed that he worked out of the site \n\nBaker – H208823 \n5 \n \nlocated in Atlanta, Texas.  According to the claimant, he had worked for the company, this most \nrecent  time  for  a  year  or  two.   The  claimant confirmed  that  Randy  Ammons  was  his  contact  at \nRigid, and he was his supervisor on October 7, 2022.  At that time, the claimant agreed that his \nhourly rate of pay was $26.00.   \n The following exchange took place: \n  Q. What type of business is Rigid?  Give us just an idea so that the Judge  \n   understands what Rigid does. \n \n  A. Well, they’re a fabrication company, slash, kind of multi-craft company, \n    also.  Do other jobs like sandblasting, painting, alignment, leveling and  \n                                     stuff like that on machinery. \n \n  Q.         That particular week, what was the purpose of the job?  Where was the job \n    that you had been working or assigned for Rigid that week? \n \n  A.          I was assigned at the Holsum\n1\n Mill in Prescott, Arkansas. \n \n According to the claimant, Rigid is based in Atlanta, Texas.  The claimant testified that the \nbest way he could describe the job site is that it is an old Ford Motor Company car lot that used to \nbe there; but now the garage part is what Rigid uses for its central office.  He further explained \nthat they have a shop and office for the supervisors and equipment that they store at the location.   \nThe claimant testified that they had been working in Prescott, Nevada County, Arkansas during \nthe entire week of October 7.  According to the claimant, there were two (the claimant and a helper) \nof them assigned to work in Prescott, Arkansas.  He testified that they were sent there to cut the \nrubber off the rolls and save as much of it as possible.  However, if they could get the rubber back \nin the rack, they would run it through.  Per the claimant, most of the rubber had to be cut down to \nthe metal on the reel and put back on or they would dispose of the rubber.   \n \n \n1\n Per the Respondents’ Post-Trial Brief, the correct spelling for the name of the mill in Prescott, Arkansas \nis Holcim, rather than Holsum.  \n\nBaker – H208823 \n6 \n \n In  October  2022,  the  claimant  was  living  in  Queen  City,  Texas.    He  drove  from  Queen \nCity, Texas to Prescot, Arkansas.  The claimant testified that Rodney told him he had the choice \nto catch a ride from the shop with one of the guys and that would save him on the cost of fuel.  Per \nthe claimant, Rodney further informed him that he was going to be paid for his time, after he signed \nin at the building that he was going to be working at each day.  The claimant confirmed that upon \narrival at the job site in Prescott, he had to sign in on a timesheet.  According to the claimant, he \nwould go to the guard shack, and they had a sign-in-sheet for him.  He would sign in there and get \na badge before entering the mill.  Typically, the claimant signed in around 7:00 a.m. for that week.  \nThe  claimant  testified  that  they  put  in  eight  hours,  and  would  leave  around  4:00  p.m.,  unless \nHolcim wanted them to stay over and finish something. \n He  confirmed  that  he  also  had  the  option  of  going  from  his  home  to  the  job  site,  in  his \npersonal vehicle.  However, that week, the claimant went to the Rigid plant in Atlanta, Texas first.  \nThen, he rode with a coworker from the Rigid plant, in Atlanta, Texas to Prescott, Arkansas.  The \nclaimant’s helper, Wes  George  was  assigned a  company  truck for  the  commute  to  the Prescott \nmill.  Once the claimant arrived at the plant in Atlanta, Texas, everything was loaded on the truck \nand ready for them to take off.   As best the claimant could recall, they would leave the job site \nfrom Atlanta, Texas to go to Prescott, Arkansas around 5:30 a.m.  The claimant testified that they \nwere given travel pay for one hour, even though it was two hours roundtrip.  He confirmed that he \nwas paid $26.00 for each day he traveled to Prescott.  The claimant agreed that they had a company \npolicy wherein they would pay him an hour if he had to travel more than 40 miles from Rigid’s \ncentral office in Atlanta, Texas.  He agreed that the company policy reads that upon commencing \nto drive to the mill in Prescott is when the time would start for the one hour of travel pay.   \n\nBaker – H208823 \n7 \n \n      The claimant agreed that the driver was Wes George.  He admitted that he was not on the \napproved drive list at that time because he had an accident one time prior to that in a company \ntruck.  The claimant denied that upon his arrival at the plant, he had to do anything, other than get \nin the truck and ride with Mr. George to Prescott, Arkansas.  He denied he had any assigned job \ntasks to perform while riding in the truck on the way from Atlanta to Prescott.   Once the claimant \ngot in the truck on the morning of October 7, 2022, to travel from Atlanta to Prescott, he slept.   \n Under further questioning, the claimant explained: \n       Q. What happened as you were sleeping? \n \n  A. We were, I guess ....  As far as the accident is concerned? I’m going to say \n   about the 41 or 42 mile marker, I woke up to spinning and crashing  \n   and rolling, and Mr. George ......  I don’t know.  I’m just assuming but, I  \n   guess, he dozed off and had rear-ended a eighteen wheeler, and we wound  \n   up in a ditch. \n \n  Q. So, we’re here today because you have a legal action for negligence against \n   Rigid that you’re attempting to pursue, is that right?   \n \n  A. Yes, sir. \n \n  Q.  And the insurance carrier for Rigod is objecting to that.  You’re contending \n   that the, what’s called the coming and going law would preclude you from \n   being characterized as an employee even though you were in the company  \n   truck at that time, is that what we’re saying here today? \n \n  A. Yes, sir.   \n \n On cross-examination, the claimant confirmed that the respondents took his deposition in \nJanuary.  He agreed that on the morning of October 7, 2022, he drove from his home in Queen \nCity, Texas to Atlanta,  Texas, where the Rigid shop is found.  He met  Mr. George  at the shop.  \nThere was a piece of equipment that they had to carry in the truck with them to the plant to do the \njob they were doing, which included stripping the mandrels.  The claimant traveled in the company \ntruck with Mr. George that morning with the equipment needed to do the job.  He confirmed that \n\nBaker – H208823 \n8 \n \nin his deposition, he testified that he had his personal tools that he had to take with him to do the \njob because he was sort of the lead person on the job and Mr. George was kind of his helper.  The \nclaimant confirmed that when he arrived at the Prescott facility each day, he signed in, and when \nhe left the mill, he signed out.  He confirmed that he began getting his hourly pay until he signed \nout at the end of the day.        \n The claimant confirmed that during his deposition, he testified that he did not get anything \nfor his travel time, but he subsequently found out when they gave him his pay records, he was    \nmistaken about the travel pay.  He confirmed that he did get some travel pay, but not the hourly \npay that he would get if he were working on the site, but he got some travel pay.  In other words.  \nThe claimant received one hour travel pay as opposed to pay for two hours to travel to the location.  \nHe confirmed that this was the travel policy as he now understands it.  The claimant confirmed \nthat he was just mistaken when he said he did not get any travel pay.   He admitted that the purpose \nof their trip from the Atlanta, Texas to Prescott, Arkansas was to fulfill a contract that Rigid had \nwith the mill at Prescott.  He confirmed that it was necessary for him to travel to the mill at Prescott \nin order for him to do what needed to be done.   \n The following exchange took place: \n  Q. So, your job, although you weren’t compensated fully for it, your job really \n   has two elements to it.  One, you’ve got to get there, travel from either home \n   or from the mill to Prescott and, two, you’ve got to do your job stripping  \n   the mandrels or the rubber using the equipment you brought from the mill, \n   is that right?  \n \n  A. Yes, sir. \n \n The claimant confirmed that after the accident, he initially thought he could go to the mill \nand he would be okay, but when he got there, he realized that he needed to get checked out.  The \nclaimant  confirmed  that  he  went  back  to Texarkana,  Texas and  got  checked  out  at  HealthCare \n\nBaker – H208823 \n9 \n \nExpress.   There,  the  claimant  was  evaluated because  he  was  complaining  of  a  right wrist,  left \nshoulder and a headache.   He was given a follow-up appointment for October 31.  The claimant \nconfirmed that he returned for the follow-up appointment.  He was off work the next day and the \nweekend and returned to work the following Monday.  The claimant confirmed he continued to \nwork at the Prescott mill from that date until the job was done in December of that year (2022).   \n He specifically confirmed that he filed a workers’ compensation claim on December 19, \n2022.  The claimant confirmed that he contacted the Rainwater Law Firm because he just wanted \nhis wrist and neck fixed.  Although in the Form AR-C it is alleged that the claimant was in the \nscope and course of employment and sustained injuries to both shoulders, his neck, right wrist and \nwhole body, the claimant denied his injuries involved the whole body.         \n The claimant returned to work for Rigid in March 2023.  The claimant confirmed that the \nclaim filed by the Rainwater Firm was withdrawn.  He basically testified that he received a letter \nfrom the firm stating that they were withdrawing as counsel, and that claim was no longer being \npursued.  The claimant admitted that he continued to work for Rigid until the job played out on \nMarch 24, 2023.  He confirmed that once the Rainwater Firm withdrew, his current attorney filed \nanother workers’ compensation claim in October of last year in Arkansas.  The claimant agreed \nthat the current claim said he was not in the course and scope of employment, and it was filed for \nthe purpose of establishing that this accident did not happen in a compensable way.  He  agreed \nthat he filed a civil lawsuit in Hempstead County against his employer, and the driver, Mr. George.  \nThe  claimant  agreed  that  he  filed a civil action and the reason that the workers’ compensation \nclaim needs to be established as not being compensable is to allow him to pursue the civil action.   \nHe  agreed  that  if  it is a workers’ compensation matter, the  exclusive  remedy  doctrine  would \n\nBaker – H208823 \n10 \n \nprevent him from filing a claim against his employer, but he would still be entitled to appropriate \nworkers’ compensation benefits.  \n On redirect examination, the claimant confirmed that whether he drove from his home in \nQueen City, Texas or he drove in the company vehicle from the plant in Atlanta, he was not doing \nanything as a passenger in the vehicle to benefit his company until he got to the job site and clocked \nin and started getting paid.  He denied he had any specific instructions or directions to do anything \nwhile riding in the company truck. \n However,  the  claimant  confirmed  on  recross  examination  that  he  had  a  job  to  do  at  the \nPrescott mill, which was a contract between Rigid and the Prescott mill to get a certain job done \nupon his arrival at the mill.  He admitted that he could not have done that job had he not driven \nthere (to Prescott, Arkansas).  The claimant confirmed that doing the job that day involved two \nthings.  First, it involved traveling to the mill and then working at the mill.  He agreed that if he \nfailed to do either one of these two things, then he could not have done his job.  \n He  confirmed  on  further cross-examination,  when  he  was  driving  from  his  home  to  the \nshop in Atlanta, he was not paid anything for that commute.    \nRodney Ammons \n Mr. Ammons was called as a witness to testify on behalf of the claimant.  He testified that \nhe is employed through 3D Industrial Services as a mechanical manager.  His job title on October \n7, 2022, when he was employed with Rigid, and was VP of Operations.  Mr. Ammons worked for \nRigid for seven years.  He confirmed that he was the claimant’s supervisor.  He testified that the \nnature of Rigid’s business was contractor for fabrication and mechanical services.  According to \nMr. Ammons, Rigid typically had in their Atlanta office anywhere from five to 25 employees.  He \n\nBaker – H208823 \n11 \n \nconfirmed that hourly employees had to sign a time sheet.  Mr. Ammons explained that process in \ndetail.  (Tr. at 42-43)  \n He confirmed that it was company policy to pay employees an hour for their travel time \nthat day.  Mr. Ammons confirmed that it was not company policy for them to have to check in at \nthe shop before they went to the job site.  He testified that they were allowed to come to the shop \nif they wanted a ride to the job site in a company vehicle or they could just go to the assigned site \nin their own vehicle and punch in there when they started working.  He confirmed that as far as \ntravel pay, whether a person decided to drive his or her own vehicle or whether the employee rode \nas a passenger, however the employee got to the job site at Prescott, he or she received travel pay \nof one hour, which was at the employee’s hourly rate.       \n He  denied  that  during  the  week  of  October  7,  2022,  the  claimant  was  assigned  any \nresponsibilities  that  he  had  to  perform  other  than  the  job  he  was  assigned  to  work  in  Prescott, \nArkansas.  Mr. Ammons denied that the claimant had any duties or responsibilities as an employee \nof the company while in the vehicle traveling from the head office in Atlanta, Texas to the job site \nin Prescott, Arkansas.   \n On cross-examination, Mr. Ammons confirmed that he would bid contracts and things of \nthat  nature  for  Rigid.    He  confirmed  that  he  negotiated  the  contract  that  the  claimant  and  Mr. \nGeorge were doing at the mill in Prescott.  Mr. Ammons confirmed that he assigned them to do \nthis job.   \n He confirmed that there are two things that had to be done to get the job done.  They had \nto get there by driving from Atlanta, Texas to Prescott, Arkansas; and then they had to do the for \nwork for job at the Prescott mill.    \n \n\nBaker – H208823 \n12 \n \n \nLaurie Walker \n The respondents called Ms. Walker as a witness.  In October of 2022, Ms. Walker was the \nassistant to the controller for Rigid.   She confirmed that she had access to the pay records for all \nof Rigid employees.  Ms. Walker admitted that she brought the pay records of another employee \njust to have examples.  She confirmed that employees who had to travel more than 40 miles from \nthe  shop  in  order  to  do  the  job, are  paid  travel  time.    Ms.  Walker  confirmed  that  it  is  company \npolicy for an employee to be paid travel time in the above instance.  She testified that they are paid \nwhile  traveling from  one  work  site  to  another.    Ms.  Walker  was  shown  the  pay  sheet  for  the \nclaimant for the week of the accident, October 3 through October 9.  She testified that the claimant \nworked 36 ½ hours regular time and had four days of driving/traveling time, for which he would \nhave been paid one hour for each day.  Ms. Walker confirmed that this was the company’s travel \npolicy which was issued on January 9, 2018.  It is Respondents’ Exhibit 4.   She confirmed that \nthe claimant rode in the company truck from the shop in Atlanta, Texas to the work site in Prescott, \nArkansas.  Ms. Walker confirmed that she made out the pay slips and arranged for the pay of the \nhourly employees for this and followed the rules in doing so.   She agreed that the prior testimony \nis correct, that the claimant was paid his full pay when he arrived at the Prescott mill, and he got \nthe lesser rate of pay while he was traveling more than 40 miles from the home office, which is \nconsistent  with  their company  policy.      She admitted that  when  an  employee  is  traveling  to  the \nassigned work site, they are traveling advancing the employer’s interests.      \nJosh Turner \n Mr. Turner testified on behalf of the respondents.  He works for Rigid Industrial Services, \nLLC.  He confirmed that he travels in connection with his work.  Mr. Turner confirms that he does \n\nBaker – H208823 \n13 \n \nsimilar work that the claimant handled for the company.  He confirmed that if the claimant was \nrequired to travel from the facility at Atlanta, Texas to a job that was more than 40 miles away, he \nwas paid for his travel time.  Mr. Turner confirmed that the claimant was paid one hour of travel \npay, at his hourly rate for travel time, which is consistent with the pay policy.  Per Mr. Turner, the \nclaimant received one hour of pay per day for his travel time.  He denied that the claimant was \ncompensated for driving his private vehicle from his home, in Queen City, Texas, to the shop in \nAtlanta, Texas.          \nMike Hanner \n Mr. Hanner was called as a witness on behalf of the respondents.  He is the owner of the \ncompany Rigid Industrial Services LLC.  Mr. Hanner testified that he has both hourly and salaried \nemployees.  According to Mr. Hanner, the claimant was an hourly employee, and Ms. Walker is a \nsalaried employee.  Mr. Hanner confirmed that he was aware of the accident that the claimant was \ninvolved in on October 7, 2022.  He was told about the two workers’ compensation claims being \nfiled, with one of them being withdrawn. \n He  confirmed  that  when  employees commute  from their home, to  or  from  the  shop,  in \nAtlanta,  Texas, they  are  not  paid.    Per  Mr. Hanner,  travel  pay  is  consistent  with the company \npolicy for a commute of more than 40 miles from his shop in Atlanta, Texas.  He confirmed that \nthis would be the case for all hourly workers. \n On cross-examination,  Mr. Hanner agreed that  it is  essential for the  operation  of  his \nbusiness that his employees travel from their home to his business every day and report for work \non time.  He testified that they do not pay employees when they travel from their home to the Rigid \nshop, in Atlanta, Texas. \n   \n\nBaker – H208823 \n14 \n \n                        Adjudication \n Here,  the  facts  are  undisputed.    On  October  7,  2022,  the  claimant  was employed  as a \nmillwright for Rigid  Industrial  Services, LLC.   The  evidence  shows  that  it  is Rigid’s written \ncompany policy that employees are paid travel pay of one hour roundtrip if he or she must travel \nmore than 40 miles from his or her home or Rigid’s head shop, which is located in Atlanta, Texas.  \nAt  the  time  of  his  accident,  the  claimant  was  assigned  to  work  at  the  mill  in  Prescott, Nevada \nCounty, Arkansas, which is more than 40 miles from Atlanta, Cass County, Texas.  The claimant \nlived in  Queen  City, Cass  County, Texas on  October  7, 2022, and  continues  to live there.  \nAccording  to company policy, the claimant had the option of driving from his home to Rigid’s \nhome office in Atlanta, Texas, and riding in the company truck to Prescott, Arkansas.  Employees \nwere given this choice to save on the cost of fuel.  Whether the employee drove his or her own \nvehicle or rode in the company truck to the assigned job location, employees received one hour of \npay for his or her travel time.  In this instance, on the morning of his accidental injury, the claimant \ndrove from his home to Rigid’s shop in Atlanta, Texas and rode as a passenger in the company \ntruck to Prescott, Arkansas.  The claimant was paid for his time traveling of one hour for his drive \nfrom the head office in Atlanta, Texas to the mill in Prescott, Arkansas because he had to travel \nmore than 40 miles from the shop.  He was paid for one hour of travel at his hourly rate of $26.00.    \nOn the morning of the motor vehicle incident, the claimant was riding as a passenger in the \ncompany truck, with his helper, Wes George.  The claimant was asleep in the truck and had no \nassigned  tasks  to  perform  for  Rigid,  except  to  arrive  at  the  mill  in  Prescott.   It  is  unclear  what \ncaused the accident; but the claimant surmised that Mr. George fell asleep and rear-ended an 18-\nwheeler, causing the truck to land in a ditch.  The claimant sought medical attention that day for \nhis injuries. \n\nBaker – H208823 \n15 \n \n    In Hudak-Lee v. Baxter County Reg. Hosp., 2011 Ark. 31, 378 S.W.3d 77, the Arkansas \nSupreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and in the \ncourse  of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i)  (Supp.  2009).    A \ncompensable injury does not include an injury that is inflicted upon the employee \nat a time when employment services are not being performed.  Ark. Code Ann. § \n11-9-102(4)(B)(iii) (Supp. 2009).  The phrase “in the course of employment” and \nthe term “employment services” are not defined in the Workers' Compensation \nAct.  Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).  Thus, \nit  falls  to  the  court  to  define  these  terms  in  a  manner  that  neither  broadens  nor \nnarrows the scope of the Act.  Id. \nAn  employee  is  performing  employment  services  when  he  or  she  is  doing \nsomething that is generally required by his or her employer.  Id.; Pifer v. Single \nSource  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the  same  test  to \ndetermine  whether  an  employee  is  performing  employment  services  as  we  do \nwhen determining whether an employee is acting within the course and scope of \nemployment.  Jivan v. Econ.  Inn & Suites, 370 Ark. 414, 260 S.W.3d 281 (2007).  \nThe test is whether the injury occurred  within the time and space boundaries of \nthe employment, when the employee was carrying out the employer's purpose or \nadvancing the employer's interest, directly or indirectly.  Id.  In Conner, 373 Ark. \n372,  284  S.W.3d  57,  we  stated  that  where  it  was  clear  that  the  injury  occurred \noutside  the  time  and  space  boundaries  of  employment,  the  critical  inquiry  is \nwhether the interests of the employer were being directly or indirectly advanced \nby  the  employee  at  the  time  of  the  injury.    Moreover,  the  issue  of  whether  an \nemployee was performing employment services within the course of employment \ndepends on the particular facts and circumstances of each case.  Id. \n I am unable to find that the “going and coming rule” applies to these facts.  The claimant \nwas not commuting between his home and work.  Therefore, I am unable to find that the “going \nand coming rule” has any application to the facts surrounding this claim.  Here, the claimant was \ntraveling from Rigid’s home office in Atlanta, Texas, to  his  assigned  work  site,  in  Prescott, \nArkansas,  when  his accidental  motor  vehicle  injury occurred.   The claimant’s work  with  Rigid \nentailed traveling to an assigned remote location, which was the mill located in Prescott, Arkansas.  \nThe  evidence  shows  that  the  claimant  was  following  the  instructions  he  had  been  given  by  his \nsupervisor, which was to travel to Prescott, Arkansas, and do his assigned duties there at the mill.  \n\nBaker – H208823 \n16 \n \nWhile carrying out these instructions, the claimant was injured in a motor vehicle accident while \nenroute from Rigid’s head office in Atlanta, Texas to his assigned job site, which was located in \nPrescott, Arkansas.     \n At the time of his accident, the claimant was “in the course of his employment” by virtue \nof his traveling from one work site to another.  Here, the claimant was carrying out the express \ndirections  of  his  employer  at  the  time  of the accident, even  though  he  was not engaged  in  the \nactivity for which he was primarily employed to perform at the mill in Prescott, Arkansas.    \n Therefore, I find that the claimant was furthering the interest of his employer by traveling \nfrom Rigid’s home office in Alanta, Texas to his assigned work site in Prescott, Arkansas, despite \nthe fact that he might have been dozing and was not working on any assigned duties while riding \nas a passenger in the company truck.  Hence, the evidence preponderates that claimant was acting \nwithin the course and scope of his employment with Rigid when he suffered injuries in a motor \nvehicle accident on October 7, 2022.   Under these circumstances, I must find that the claimant’s \nproper and exclusive remedy for any of his injuries arising out of October 7, 2022, motor vehicle \naccident falls under the jurisdiction of the Arkansas Workers’ Compensation Act. \n                                                      ORDER \n Based on the foregoing findings of facts, the exclusive remedy for this claim falls under \nthe jurisdiction of the Arkansas Workers’ Compensation Act.  \n      IT IS SO ORDERED. \n \n                                                                            ______________________                       \n                         CHANDRA L. BLACK \n                                Administrative Law Judge \n \n \n\nBaker – H208823 \n17","textLength":32521,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO.: H208823 JOHN BAKER, EMPLOYEE CLAIMANT RIGID INDUSTRIAL SERVICES, LLC, EMPLOYER RESPONDENT SIRIUSPOINT AMERICA INSURANCE/ SIRIUSPOINT AMERICA INSURANCE CO., CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 18, 2025 Hearing held before Administrative Law Judge Ch...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","wrist","shoulder","neck"],"fetchedAt":"2026-05-19T22:34:35.454Z"},{"id":"full_commission-H404478-2025-11-17","awccNumber":"H404478","decisionDate":"2025-11-17","decisionYear":2025,"opinionType":"full_commission","claimantName":"Marilynn Vandever","employerName":"Homebound Medical","title":"VANDEVER VS. HOMEBOUND MEDICAL AWCC# H404478 November 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Vandever_Marilynn_H404478_20251117.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Vandever_Marilynn_H404478_20251117.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO. H404478 \n \nMARILYNN G. VANDEVER, \nEMPLOYEE \n \nCLAIMANT \nHOMEBOUND MEDICAL,  \nEMPLOYER \n \nRESPONDENT \nSUMMIT CONSULTING LLC, \nINSURANCE CARRIER/TPA \n \nRESPONDENT \n       \nOPINION FILED NOVEMBER 17, 2025  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE ZACHARY F. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJune 26, 2025.  The administrative law judge found that the claimant failed \nto prove she sustained a compensable injury.  After reviewing the entire \nrecord de novo, the Full Commission finds that the claimant did not \nestablish a compensable injury by medical evidence supported by objective \nfindings.    \nI.  HISTORY \n Marilynn Gail Vandever, now age 71, testified that she became \nemployed with the respondents, Homebound Medical, in September 2023.  \n\nVANDEVER - H404478  2\n  \n \n \nThe claimant testified that she was hired by the respondents “to take care of \na little girl.  I am a private-duty nurse.”  The parties stipulated that an \nemployment relationship existed on or about June 12, 2024.  The claimant \ntestified on direct examination: \nQ.  And so on June 12\nth\n of 2024, were you working for \nHomebound taking care of this girl? \nA.  Yes.... \nQ.  And how old was she? \nA.  Five. \nQ.  And how much did she weigh? \nA.  She weighed between 50, 55, max.... \nQ.  So what happened on June 12\nth\n of 2024? \nA.  That morning, she was ready to get up, so I went and got \neverything together.  Got her dressed in the bed like I always \ndo and I went to lift her out of bed.  I always lift – I teach lifting \nso people don’t get hurt, but when I turned her – I picked her \nup and then I tried to turn my body around but I couldn’t turn it \naround because something was impairing my feet and I don’t \nknow what it is to this day.  So instead of turning my entire \nbody, taking those steps, I had to twist my upper torso and get \nher on the bed before I dropped her.   \nQ.  And as you were doing that, what did you experience? \nA.  Well, I got a really bad sharp pain in my lower back and \nmy buttocks and I had to lay over the bed until it released or \ngot better.  And then I continued to push her down the bed, \nyou know, scoot her down the bed to get her up and did her \nbreathing treatments and everything, and then we both just \nsat down and rested.   \nQ.  Okay.  And did you report that injury? \nA.  I did that night.  I wrote a note and sent it to them by e-mail \nthat I needed to make a report, but I didn’t really want to make \na workers’ comp report, but I wanted it on record in case I \ndidn’t get better.   \n \n\nVANDEVER - H404478  3\n  \n \n \n According to the record, the claimant sent an e-mail to Brooke \nBuchanan, the respondent-employer’s Care Coordinator, at 10:11 p.m. on \nJune 12, 2024: \n Hello Brooke \nI don’t know who to call or where to find an incident report \nform.  I got hurt at work today and need to at least make a \nrecord of it.  Please call me or email me a form.  Just know I \ndidn’t realize I was hurt, I thought it was a strained muscle, \nafter I got home and sat down to rest I had to have help \ngetting up.  And it’s not getting any easier.   \nRegretfully, \nMarilynn Vandever \n \n The claimant wrote a “To Whom this Concerns” note on June 13, \n2024: \nOn 6/12/2024, I was transferring Avarie from her bed to her \nparents’ bed, so I could get her into her wheelchair.  I \nsomehow got in a bind with my feet and instead of being able \nto turn and sit her on the bed, I had to twist my upper body \nand sit her down.  I (sic) the process, the pain in my lower \nback was excruciating and shooting into my right and left \nbuttocks.  But there was no way I could turn and put her back \ninto her bed, so I endured the pain and put her on her parents’ \nbed.  I rested for a few minutes and went on to put her into her \nwheelchair.  I really thought I had just aggravated a muscle, \nso I continued with my morning care and then rested my back.  \nI felt a twinge in my back and buttock throughout the shift, but \nI really thought it would eventually stop.   \nI finished my shift and went to get into my car, but it was \ndifficult for me to lift my left leg to put it in my car without \nburning pain in my left lower back radiating down my buttocks \nand the back of my thigh.  I came home (a 4-minute drive) and \nsat down with my feet up to rest.  After about an hour and a \nhalf I went to get up and had to have help.  I took some \nibuprofen and went to bed early.  At 0530 this morning I had \nto call my husband to help me up.  At this point, I called on-\n\nVANDEVER - H404478  4\n  \n \n \ncall and advised her that I could not go in today.  I also told \nher that I notified Brooke last night about my injury via e-mail.   \n \n Raychel Miller, an Administrative Assistant with HomeBound Home \nHealth, e-mailed the claimant at 10:24 a.m. on June 13, 2024:  “Please print \nand fill out the attached form.  We will need this returned ASAP.”   \nThe claimant sent an e-mail to an individual named “Gayla” at 11:55 \na.m. on June 13, 2024: \nI sent an injury report this morning and I think it was \nmisunderstood.  I got a message from workers comp and i \nwas surprise (sic), as I didn’t mean I wanted to file a claim.  I \nappreciate the concern, but I am sure I just have a pulled \nmuscle.  I don’t want to file a claim I just needed to let y’all \nknow I couldn’t work today and why.  Please retract the report \nto Summit because I don’t need medical attention.  I am off \nuntil next Friday, so between now and then I am sure I’ll be \nback to normal.  I’m sorry for the misunderstanding. \nThank you for your concern.   \n \n The claimant then e-mailed Raychel Miller at 11:57 a.m. on June 13, \n2024:  “Please talk to Gayla.  I am not, nor do I need to file a workers \ncompensation claim.” \n The claimant’s testimony indicated that she eventually filed a \nworkers’ compensation claim, and that the respondents authorized medical \ntreatment.  An x-ray of the claimant’s pelvis was taken on September 12, \n2024:  “Pain in left hip ... WC twisted back while lifting a patient pain left \nside.”  The impression was “No acute osseous abnormality.”   \n\nVANDEVER - H404478  5\n  \n \n \nAn x-ray of the claimant’s lumbosacral spine was taken on \nNovember 7, 2024 with the following findings: \nTwo-view lumbar spine demonstrates mild degenerative disc \ndisease.  Atherosclerotic calcification of the abdominal aorta.  \nMild facet joint arthropathy of the lower lumbar spine.  No \ncompression fracture. \nIMPRESSION:  MILD DEGENERATIVE DISC DISEASE AND \nFACET JOINT ARTHROPATHY OF THE LUMBAR SPINE.   \nNO ACUTE FINDINGS.   \n \n The claimant began treating at West Washington County Clinic on \nDecember 19, 2024: \nMs. Vandever is a 70yo F presenting today for low back pain \nwith radiculopathy to the LLE.  She notes pain since 6/12/24 \nwhen she was lifting a patient who weighed approx. 50lbs and \nshe twisted and she felt immediate pain.  The pain radiates to \nthe left buttock and the (sic) down to the posterior thigh....No \nhx of lumbar sx.... \nThoracic Spine examination demonstrates no spine \ntenderness on palpation. \nLumbar/Sacral Spine examination demonstrates \nLumbosacral Spine:  Tenderness:  left sciatic notch, but not \nthe lumbar spine, not the left paraspinal, not the right \nparaspinal and not the right sciatic notch.  +TTP L SI Joint.... \nMotor tone:  the muscle tone was normal.   \nInvoluntary movements:  no involuntary movements were \nseen.   \n \n Dr. Jennifer Cheatham’s impression was “1.  Low back pain radiating \nto left lower extremity,” “2.  Cervicalgia,” “3.  Hyperreflexia,” and “4.  \nSacroiliac joint pain....Will refer to physical therapy for lumbar spine and SI \njoint.  Will order a lumbar MRI to further evaluate this.  She will continue to \nfollow with pain management.”   \n\nVANDEVER - H404478  6\n  \n \n \n An MRI of the claimant’s lumbar spine was taken on December 30, \n2024 with the following findings: \nThe vertebral bodies of the lumbar spine maintain normal \nheight and alignment.  No fracture seen.  There is normal \nmarrow signal.  The conus medullaris terminates at L1-2 and \nis normal in signal and morphology.  There is no acute \nparaspinal abnormality seen. \nAt L1-2, no abnormality. \nAt L2-3, mild loss of disc height and disc desiccation is seen.  \nThere is mild annular disc bulging.  There is thickening of the \nligamentum flavum.  No significant neural foraminal narrowing \nor central canal stenosis.   \nAt L3-4, disc desiccation is demonstrated with annular disc \nbulge.  There is left foraminal disc fissuring.  No central canal \nstenosis or neural foraminal narrowing.  Mild bilateral facet \nosteoarthritis.   \nAt L4-5, there is mild posterior disc bulge.  There is mild \nthickening of ligamentum flavum and mild facet hypertrophy \nand osteoarthritis.  There is no significant central canal \nstenosis seen.  There is mild left neural foraminal narrowing. \nAt L5-S1, no disc herniation.  No central canal stenosis or \nsignificant neural foraminal narrowing. \nIMPRESSION:  1.  MILD LUMBAR SPONDYLOSIS \nWITHOUT EVIDENCE OF HIGH-GRADE CENTRAL CANAL \nSTENOSIS OR FORAMINAL NARROWING.   \n \n The claimant began a program of physical therapy visits on January \n2, 2025:  “Patient reports she was lifting and transferring a patient to the \nleft.  She states she has a protective pattern to prevent injury of lifting and \nthen pivoting feet instead of twisting her back.  She reports on day of \nincident her feet some how were caught and she had to turn her trunk to \ntransfer the patient and protect the patient.  However, as she did this she \n\nVANDEVER - H404478  7\n  \n \n \nhad instant pain in the low back and left hip....She reports the pain has \nprogressed since.”   \n The claimant underwent a Sacroiliac Joint injection on February 17, \n2025.     \nA pre-hearing order was filed on February 24, 2025.  According to \nthe text of the pre-hearing order, the claimant contended, “The Claimant \ncontends that she suffered a her (sic) low back while working and is entitled \nto medical treatment and Temporary Total Disability from her date last \nworked to a day yet to be determined.  The Claimant reserves all other \nissues.” \n The respondents contended, “The Respondents contend that this \nclaim is denied.  There are no objective findings to substantiate the alleged \ninjury.  The Claimant was not injured at work.  If compensable, the claimant \nrefused a light duty job offer and is not entitled to TTD beyond the date of \nthe offer.”   \n The parties agreed to litigate the following issues: \n1. Compensability of an injury to the low back.   \n2. Medical treatment in regard to the low back injury. \n3. Temporary Total Disability benefits from June 12, 2024, to \na date to be determined. \n4. Attorney Fees. \n5. All other issues are reserved.   \n \n\nVANDEVER - H404478  8\n  \n \n \n   Meanwhile, the claimant was discharged from physical therapy on \nApril 23, 2025.  The claimant testified that she benefitted from physical \ntherapy and an injection.     \nAfter a hearing, an administrative law judge filed an opinion on June \n26, 2025.  The administrative law judge found that the claimant failed to \nprove she sustained a compensable injury.  The claimant appeals to the \nFull Commission.     \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n(A)  “Compensable injury” means: \n(i) An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in \nthe course of employment and which requires \nmedical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific \nincident and is identifiable by time and place of \noccurrence[.]   \n \nA compensable injury must be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).  The requirement that a compensable injury be established by \nmedical evidence supported by objective findings applies only to the \nexistence and extent of the injury.  Ford v. Chemipulp Process, Inc., 63 Ark. \n\nVANDEVER - H404478  9\n  \n \n \nApp. 260, 977 S.W.2d 5 (1998), citing Stephens Truck Lines v. Millican, 58 \nArk. App. 275, 950 S.W.2d 472 (1997).   \nThe employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nAn administrative law judge found in the present matter, “2.  \nClaimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable low back injury on June 13, 2024.”  The Full \nCommission finds that the claimant did not establish a compensable injury \nby medical evidence supported by objective findings.   \nThe claimant testified that she became employed as a private-duty \nnurse for the respondents in September 2023.  The parties stipulated that \nthe employment relationship existed on or about June 12, 2024.  The \nclaimant testified that she was providing home health care for a five-year-\nold girl that day.  The claimant testified that she felt a “sharp pain” in her \nlower back while lifting the patient out of bed.  The record indicates that the \nclaimant e-mailed the respondent-employer’s Care Coordinator on June 12, \n2024 and notified her that an alleged specific incident had occurred.  After \nshe was asked to complete a form, the claimant informed two \n\nVANDEVER - H404478  10\n  \n \n \nrepresentatives of the respondents in part, “I didn’t mean I wanted to file a \nclaim....I am not, nor do I need to file a workers compensation claim.”  In \nany event, the claimant’s testimony indicated that she eventually filed a \nclaim, and the claimant’s testimony indicated that the respondents \nauthorized medical treatment. \nThe claimant did not establish a compensable injury by medical \nevidence supported by objective findings.  An x-ray of the claimant’s pelvis \non November 7, 2024 showed “No acute osseous abnormality.”  An x-ray of \nthe claimant’s lumbosacral spine on November 7, 2024 showed “MILD \nDEGENERATIVE DISC DISEASE AND FACET JOINT ARTHROPATHY \nOF THE LUMBAR SPINE.  NO ACUTE FINDINGS.”  The results of the x-\nrays taken November 7, 2024 cannot be interpreted as objective medical \nfindings establishing a compensable injury.  The claimant treated at West \nWashington County Clinic on December 19, 2024, where a physical \nexamination showed “Tenderness:  left sciatic notch, but not the lumbar \nspine[.]”  “Tenderness” is not an objective medical finding establishing a \ncompensable injury.  Rodriguez v. M. McDaniel Co., Inc., 98 Ark. App. 138, \n252 S.W.2d 146 (2007).   \nIt is well-settled that a report of “muscle spasms” can constitute \nobjective medical findings.  Continental Express, Inc. v. Freeman, 339 Ark. \n142, 4 S.W.3d 124 (1999).  In the present matter, that are no reports or \n\nVANDEVER - H404478  11\n  \n \n \nobservations in the record of “muscle spasm” based on a physical \nexamination of the claimant’s low back or lumbar spine.  We specifically \nnote the report at West Washington County Clinic on December 19, 2024, \n“Motor tone:  the muscle tone was normal.  Involuntary movements:  no \ninvoluntary movements were seen.”  An MRI of the claimant’s lumbar spine \non December 30, 2024 showed “1.  MILD LUMBAR SPONDYLOSIS \nWITHOUT EVIDENCE OF HIGH-GRADE CENTRAL CANAL STENOSIS \nOR FORAMINAL NARROWING.”  This impression from the MRI of the \nclaimant’s lumbar spine cannot be interpreted as medical evidence \nestablishing a compensable injury.   \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not establish a compensable injury by medical \nevidence supported by objective findings, in accordance with Ark. Code \nAnn. §11-9-102(4)(D)(Repl. 2012).  We therefore affirm the administrative \nlaw judge’s finding that the claimant did not prove she sustained a \ncompensable injury.  This claim is respectfully denied and dismissed. \nIT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":16787,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H404478 MARILYNN G. VANDEVER, EMPLOYEE CLAIMANT HOMEBOUND MEDICAL, EMPLOYER RESPONDENT SUMMIT CONSULTING LLC, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 17, 2025","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:1","denied:2"],"injuryKeywords":["back","hip","lumbar","fracture","thoracic"],"fetchedAt":"2026-05-19T22:29:43.955Z"},{"id":"alj-H405865-2025-11-14","awccNumber":"H405865","decisionDate":"2025-11-14","decisionYear":2025,"opinionType":"alj","claimantName":"Robert Barnes","employerName":"W.E. Pender & Sons, Inc","title":"BARNES VS. W.E. PENDER & SONS, INC. AWCC# H405865 November 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BARNES_ROBERT_H405865_20251114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BARNES_ROBERT_H405865_20251114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H405865 \n \nROBERT E. BARNES, EMPLOYEE        CLAIMANT \n \nW.E. PENDER & SONS, INC., EMPLOYER                       RESPONDENT \n \nEMCASCO INS. CO./ EMPLOYERS MUTUAL CASUALTY CO., \nCARRIER/TPA                    RESPONDENT \n  \n \n \nOPINION FILED 14 NOVEMBER 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 5 November 2025 in Little Rock, Arkansas. \n \nThe pro se claimant failed to appear. \n \nNewkirk & Jones, Mr. Rick Behring, Jr., appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 5 November 2025. This case relates to an alleged workplace injury \noccurring on 14 December 2023. The record of the hearing consists of the transcript; \nRespondents’ Exhibit No 1, which consisted of 14 pages of documents and pleadings in \nsupport of their motion; and Commission’s Exhibit No 1, three pages that included a Form \nAR-C filed on 17 January 2025 and two Postal Service delivery receipts from Commission \ncorrespondence with the claimant.  \nOn 17 January 2025, the claimant, though his then-counsel, filed a Form AR-C. \nThen, on 29 July 2025, Claimant’s counsel requested leave to withdraw as the claimant’s \nattorney. In an Order dated 27 August 2025, the Full Commission granted that request. \n\nR. BARNES- H405865 \n2 \n \nThe respondents later requested that this claim be dismissed under Commission \nRule 099.13 (now codified at 11 C.A.R. § 25-110(d)) and/or Ark. Code Ann. § 11-9-702. They \nnote that the claimant had not requested a hearing on an issue ripe for litigation.  \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of a hearing on the \nrespondents’ motion was sent in the same manner. The claimant did not accept the certified \nletter with the notice of the respondents’ motion. But a delivery receipt bearing the \nclaimant’s signature confirms that he received the 13 October 2025 Notice of Hearing letter \non 18 October 2025. He did not exercise his right to appear at the hearing to resist the \nrespondents’ motion. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim is dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 5 November 2025 and presented their motion. As \nargued by the respondents at the hearing, Commission Rule 099.13 (now 11 C.A.R. § 25-\n110(d)) provides for a dismissal for failure to prosecute an action upon application by either \nparty and reasonable notice. The claimant did not file a response to the motion or appear at \nthe hearing to argue against the dismissal of his claim.  \n\nR. BARNES- H405865 \n3 \n \nThe claimant filed his Form AR-C on 13 January 2025. Since that time, no filings \nhave been made by the claimant save for his attorney’s request to withdraw from the case, \nwhich was granted by the Full Commission without any objection from the claimant. No \nfilings have been made by the claimant since the entry of the Order granting the \nwithdrawal. Likewise, no objection was filed to the respondents’ motion to dismiss this \nclaim. Further, the claimant did not appear at the hearing to object to the dismissal of his \nclaim.  \nThe record does not reflect a request for a hearing ever being filed in this claim. \nBased on the evidence presented, a dismissal without prejudice is appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4225,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H405865 ROBERT E. BARNES, EMPLOYEE CLAIMANT W.E. PENDER & SONS, INC., EMPLOYER RESPONDENT EMCASCO INS. CO./ EMPLOYERS MUTUAL CASUALTY CO., CARRIER/TPA RESPONDENT OPINION FILED 14 NOVEMBER 2025 Heard before Arkansas Workers’ Compensation Commission (“the ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:34:29.215Z"},{"id":"alj-H501116-2025-11-14","awccNumber":"H501116","decisionDate":"2025-11-14","decisionYear":2025,"opinionType":"alj","claimantName":"Stephen Griggs","employerName":"Sms Group, Inc","title":"GRIGGS VS. SMS GROUP, INC. AWCC# H501116 November 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Griggs_Stephen_H501116_20251114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Griggs_Stephen_H501116_20251114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H501116 \n \n \nSTEPHEN GRIGGS, EMPLOYEE CLAIMANT \n \nSMS GROUP, INC., \n EMPLOYER RESPONDENT \n \nFARMINGTON CASUALTY CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED NOVEMBER 14, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on November 14, 2025, \nin Forrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Amy C. Markham, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on November 14, 2025, in \nForrest  City,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”), forms,   pleadings,   and \ncorrespondence related to this claim, consisting of 19 pages. \n\nGRIGGS – H501116 \n \n2 \n \n The record shows the following procedural history: \n Per the First Report of Injury or Illness that was filed on February 20, 2025, \n2025,  Claimant  purportedly  suffered an  injury  to  his  lower  back at  work  on \nDecember  24,  2024,  when he  was  lifting  and  sorting  large  and  heavy  braided \nhoses.  According  to  the  Form  AR-2  that  was filed  on February 20,  2025, \nRespondents controverted  the claim in  its  entirety.  Their  counsel  entered  her \nappearance on February 22, 2025. \n On February  28,  2025, through  then-counsel Laura  Beth  York, Claimant \nfiled a Form AR-C.  Therein, he requested the full range of additional benefits in \nconnection  with  his  alleged  lower  back injury.   No  hearing  request  accompanied \nthis filing.  In response thereto, Respondents’ counsel notified the Commission by \nletter on March 7, 2025, that her clients’ position had not changed. \n York moved  to  withdraw  from  her representation  of  Claimant  on June  26, \n2025.    In  an  Order  entered  on July  23,  2025,  the  Full  Commission  granted  the \nmotion pursuant to AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nSeptember  2,  2025.    On  that  date, Respondents filed  the  instant  motion,  asking \nfor  dismissal  of  the  claim dismissal  under  AWCC  R.  099.13  (now  codified  at  11 \nC.A.R. § 25-110(d)) because Claimant had not made a bona fide hearing request \non the claim since its filing.  The file was assigned to me on September 3, 2025; \nand  on  that  same  date,  my  office wrote  Claimant,  asking  for  a  response  to  the \n\nGRIGGS – H501116 \n \n3 \n \nmotion within 20 days.  The letter was sent by first class and certified mail to the \nCherry Valley address for Claimant that was listed in the file and on his Form AR-\nC.  Someone   with  an   illegible   signature   signed   for   the   certified   letter   on \nSeptember  6, 2025; and the  first-class  letter  was  not  returned.   Regardless,  no \nresponse to the motion was forthcoming.  On September 25, 2025, a hearing on \nthe Motion to Dismiss was scheduled for November 14, 2025, at 10:30 a.m. at the \nSt. Francis County Courthouse in Forrest City.  The certified mailing of the Notice \nof  Hearing  to  Claimant was  returned  to  the  Commission, refused,  on October 3, \n2025; but the first-class mailing was not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the above-cited provision. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n\nGRIGGS – H501116 \n \n4 \n \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under 11 C.A.R. § 25-110(d). \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) (formerly AWCC R. 099.13) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no steps to pursue \nit  (including  appearing  at  the November  14,  2025,  hearing to  argue  against  its \n\nGRIGGS – H501116 \n \n5 \n \ndismissal)  since  the  filing  of  his  Form  AR-C  on February  28,  2025.   Thus,  the \nevidence preponderates that dismissal of the claim is warranted under 11 C.A.R. \n§ 25-110(d). \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \nthe  foregoing,  I agree  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7247,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H501116 STEPHEN GRIGGS, EMPLOYEE CLAIMANT SMS GROUP, INC., EMPLOYER RESPONDENT FARMINGTON CASUALTY CO., CARRIER RESPONDENT OPINION FILED NOVEMBER 14, 2025 Hearing before Administrative Law Judge O. Milton Fine II on November 14, 2025, in Forrest City, St. Fra...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:34:31.281Z"},{"id":"alj-H501138-2025-11-14","awccNumber":"H501138","decisionDate":"2025-11-14","decisionYear":2025,"opinionType":"alj","claimantName":"Dakota Perkins","employerName":"City Of Redfield","title":"PERKINS VS. CITY OF REDFIELD AWCC# H501138 November 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PERKINS_DAKOTA_H501138_20251114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PERKINS_DAKOTA_H501138_20251114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H501138 \n \nDAKOTA PERKINS, EMPLOYEE        CLAIMANT \n \nCITY OF REDFIELD, SELF-INSURED EMPLOYER                   RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, ADMINISTRATOR            RESPONDENT \n  \n \n \nOPINION FILED 14 NOVEMBER 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 6 November 2025 in Pine Bluff, Arkansas. \n \nThe pro se claimant failed to appear. \n \nThe Arkansas Municipal League, Ms. Mary K. Edwards, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 6 November 2025. This case relates to an alleged workplace injury \noccurring on 16 November 2023. The record of the hearing consists of the transcript; \nRespondents’ Exhibit No 1, which consisted of one index page and five pages of documents; \nand Commission’s Exhibit No 1, which consisted of three pages that included a Form AR-C \nfiled on 21 February 2025 and two Postal Service delivery receipts from Commission \ncorrespondence with the claimant.  \nOn 21 February 2025, the claimant filed a Form AR-C seeking medical expenses \nrelating to an alleged injury to his right bicep. The respondents later requested that this \nclaim be dismissed under Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110(d)) \nand/or Ark. Code Ann. § 11-9-702. Their 11 September 2025 motion notes that as of the \nfiling of that motion, the claimant had not requested a hearing on any issue ripe for \nlitigation.  \n\nD. PERKINS- H501138 \n2 \n \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of a hearing on the \nrespondents was sent in the same manner. Delivery confirmation receipts show that the \nclaimant received both notice letters. He did not exercise his right to appear at the hearing \nto resist the respondents’ motion. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim is dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 6 November 2025 and presented their motion. As \nargued by the respondents at the hearing, Commission Rule 099.13 (now 11 C.A.R. § 25-\n110(d)) provides for a dismissal for failure to prosecute an action upon application by either \nparty and reasonable notice. The claimant did not file a response to the motion or appear at \nthe hearing to argue against the dismissal of his claim.  \nThe claimant filed his Form AR-C on 21 February 2025. No filings have been made \nby the claimant since the filing of the Form AR-C; and he has failed to make a request for a \nhearing on his claim. Likewise, no objection was filed to the respondents’ motion to dismiss \nthis claim. Further, the claimant did not appear at the hearing to object to the dismissal of \nhis claim.  \n\nD. PERKINS- H501138 \n3 \n \nThe record does not reflect a request for a hearing ever being filed in this claim. \nBased on the evidence presented, a dismissal without prejudice is appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3821,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H501138 DAKOTA PERKINS, EMPLOYEE CLAIMANT CITY OF REDFIELD, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, ADMINISTRATOR RESPONDENT OPINION FILED 14 NOVEMBER 2025 Heard before Arkansas Workers’ Compensation Commission (“the Commission”) Admi...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:34:33.354Z"},{"id":"alj-H501091-2025-11-12","awccNumber":"H501091","decisionDate":"2025-11-12","decisionYear":2025,"opinionType":"alj","claimantName":"Kristi Hill","employerName":"Incite Rehab, LLC","title":"HILL VS. INCITE REHAB, LLC AWCC# H501091 November 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HILL_KRISTI_H501091_20251112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HILL_KRISTI_H501091_20251112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H501091 \n \nKRISTI HILL, Employee CLAIMANT \n \nINCITE REHAB, LLC, Employer RESPONDENT \n \nCCMSI, Carrier RESPONDENT \n \n \n \n OPINION FILED NOVEMBER 12, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents  represented  by JARROD  S.  PARRISH,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On October  20, 2025,  the  above  captioned claim  came  on  for  a  hearing  at  Fort \nSmith, Arkansas.   A pre-hearing conference was conducted on August 20, 2025, and a \npre-hearing  order  was  filed  on  that  same  date. A  copy  of  the  Pre-hearing  Order  has \nbeen  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.    The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  the \nwithin claim. \n2.  The  employee/employer/carrier  relationship  existed  among  the  parties  on \nFebruary 7, 2025. \n\nHill – H501091 \n \n-2- \nAt the time of the hearing, the parties agreed to stipulate that claimant earned an \naverage weekly wage of $940.96, which would entitle her to compensation at the rates \nof  $627.00  for  total  disability  benefits  and  $470.00  for  permanent  partial  disability \nbenefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Compensability of injury to right shoulder on February 7, 2025. \n2. Related medical. \n3. Temporary total disability benefits from date last paid through a date yet to be \ndetermined. \n4. Respondent’s entitlement to a credit for benefits paid prior to denial of claim \nand for short-term disability benefits paid. \n5. Attorney’s fee. \nThe  claimant  contends  “that  she  sustained  a  compensable  injury  to  her  right \nshoulder on February 7, 2025 and was provided authorized medical treatment from that \ndate  until  on  or  about  May  29,  2025.  The  Claimant  contends  that  she  is  entitled  to \ntemporary  total  disability  benefits  from  when  they  stopped  until  a  date  yet  to  be \ndetermined,  as  well  as  additional  medical  treatment.”  Claimant  contends  that  since \nRespondent is controverting this claim in its entirety, his attorney is entitled to a fee on \nall indemnity benefits. \nThe  respondents  contend  “that  while  this  claim  was  initially  accepted  as \ncompensable,   based   on   documentation   received,   the   claimant   did   not   suffer   a \ncompensable injury under the Arkansas Workers’ Compensation Act. In light of this, it is \nRespondents’ position that Claimant is not entitled to benefits associated with this claim. \n\nHill – H501091 \n \n-3- \nAlternatively,  in  the  event  compensability  is  found,  benefits  were  paid  to  the  claimant \nthrough 9/21/25, and they should be entitled to a credit for benefits paid prior to denial \nof  the  claim.  Additionally,  the  claimant  received  short-term  disability  benefits  and \nRespondent  may  have  a  credit  for  those  benefits  paid  in  the  event  compensability  is \nfound in this matter.” \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted  on August  20,  2025,  and  contained  in  a pre-hearing  order  filed  that  same \ndate are hereby accepted as fact. \n 2. Claimant has failed to meet her burden of proving by a preponderance of the \nevidence  that  she  suffered  a  compensable  injury  to  her  right  shoulder  on  February  7, \n2025. \n \nFACTUAL BACKGROUND \n Claimant  has  been  employed  as  a  physical  therapist  assistant  for  respondent \nand  its  predecessors  for  more  than  30  years.  Her  job  duties  required  her  to  transfer \npatients;  standing  balance  activities;  gait  training;  and  therapeutic  exercise.  Claimant \nconsidered  her  job  to  be  physically  demanding  because  many  of  the  patients  were \n\nHill – H501091 \n \n-4- \npartially  paralyzed  and  non-weight-bearing  with  their  lower  extremities  which  required \nhelping them stand, walk and transfer to devices. \n Claimant  testified  that  on  February  7,  2025,  she  was  assisting  a  patient  by \nmoving the footplate on his chair. As she took a step to the right, she hit the patient’s \nfoot, causing her to lose her balance and start falling to the right. She testified that she \nfell towards a window frame with her right arm. \nQ So  you  tried  to  grab  the  wall  with  your  left  hand \nbecause you were falling to the right? \n \nA Yes. \n \nQ And then you hit something with your right shoulder? \n \nA Yes. \n \nQ And what was it that you hit? \n \nA The outside of my right shoulder. \n \nQ What part of the building did you hit? \n \nA The sheetrock, the frame of the windowsill. \n \n The  beginning  of  this  fall  can  be  seen  on  the  video  submitted  into  evidence  by \nthe  respondent.  The  video  shows  claimant  falling  to  her  right  but  does  not  show  her \nstriking a windowsill with her right shoulder. \n Claimant  testified  that  after  this  incident  she  had  a  burning  pain  in  her  right \nshoulder and reported it to her supervisor. After she attempted to work for a few minutes \nshe informed her supervisor that she believed she had really injured herself and needed \nmedical  attention.  Claimant  talked  to  someone  in  human  resources  and  was  sent  for \nmedical treatment with Dr. Terry Clark at Mercy Clinic on February 7. \n\nHill – H501091 \n \n-5- \n Dr.  Clark  ordered  an  x-ray of claimant’s right shoulder which showed no  acute \nfindings. Although his report states that bruising was not present during his examination, \nhe diagnosed claimant’s condition as a contusion and sprain of the right shoulder. He \nprescribed  the  use  of  a  sling;  ice;  and  over-the-counter  medication.  He  also  indicated \nthat  claimant  had  work  restrictions  of  no  lifting/pulling/pushing  over  10  lbs.  and  no \noverhead work. \n Claimant returned to Dr. Clark on February 17, 2025, and indicated that her pain \nwas  variable  depending  on  the  activity.  Dr.  Clark  prescribed  physical  therapy  three \ntimes  a  week  for  two  weeks.  In  his  report  of  March  3,  2025,  Dr.  Clark  noted  that \nclaimant had not yet started physical therapy and again indicated that physical therapy \nwas appropriate.  \n On March 18, 2025, claimant returned to see Dr. Clark who noted that claimant \ndid not feel that her pain was improving, and he ordered an MR arthrogram of her right \nshoulder.  According  to  Dr.  Clark’s  report  of  April  7,  2025,  the  MRI  revealed  a  full-\nthickness  tear  of  the  supraspinatus  tendon, and  he  referred  claimant  for an  orthopedic \nevaluation.  \n Claimant  was  seen by  Dr.  Jonathan  Tobey, an orthopedic  surgeon,  on  April  30, \n2025.  He  reviewed  the  MRI  scan  and  interpreted  it  as  showing  a  SLAP  tear  with  no \nobvious  rotator  cuff  tear.  He  further  noted  that  although  the  radiologist  interpreted  the \nMRI  as  showing  a  full-thickness  tear  of  the  supraspinatus,  he  disagreed  with  that \nassessment. Dr. Tobey ordered physical therapy; the use of medications; and restricted \nclaimant’s use of her right shoulder for six weeks. \n\nHill – H501091 \n \n-6- \n When claimant’s condition did not improve, Dr. Tobey recommended surgery. \nThis surgery was performed on September 4, 2025. Dr. Tobey’s operative report of that \ndate indicates that his post-operative diagnosis included: right shoulder SLAP tear; AC \narthrosis;  subacromial  impingement;  incomplete  supraspinatus  tear;  and  glenohumeral \nsynovitis.  \n Respondent   initially   accepted   this   claim   as   compensable   but   after   further \ninvestigation,  denied  the  claim  by  letter  dated  May  29,  2025.  Claimant  has  filed  this \nclaim  contending  that  she  suffered  a  compensable  injury  to  her  right  shoulder  on \nFebruary  7,  2025.  She  seeks  payment  of  medical  treatment,  temporary  total  disability \nbenefits, and a controverted attorney fee. \n \nADJUDICATION \n Claimant  contends  that  she  suffered  a  compensable  injury  to  her  right  shoulder \non February 7, 2025. Claimant’s claim is for a specific injury, identifiable by time and \nplace of occurrence. \n In order to prove a compensable injury as the result of a specific incident that is \nidentifiable   by   time   and   place   of   occurrence,   a   claimant   must   establish   by   a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \n\nHill – H501091 \n \n-7- \n An aggravation is a new injury resulting from an independent incident, and being \na  new  injury  with  an  independent  cause,  it  must  meet  the  definition  of  a  compensable \ninjury  in  order  to  establish  compensability  of  the  aggravation. Hickman  v.  Kellogg, \nBrown and Root,  372  Ark.  501,  27  S.W.  3d  591  (2008),  citing Jim  Walter  Homes  v. \nBeard, 82 Ark. App. 607, 120 S.W. 3d 160 (2007).  \n Establishing  a  compensable  injury  in  the  form  of  an  aggravation  would  require \nmedical  evidence  supported  by  objective  findings  establishing  an  injury.  A.C.A.  §11-9-\n102(4)(D). After  reviewing  the  evidence  in  this  case  impartially,  without  giving  the \nbenefit of the doubt to either party, I find that claimant has failed to meet her burden of \nproof.  \n The  evidence  in  this  case  indicates  that  claimant  has a  history  of right  shoulder \nproblems  dating  back  to  2023.  In  2023  the  claimant  was  attempting  to  jump  across  a \nsmall creek when she slipped. In order to keep herself from hitting the ground, she had \nboth arms extended and struck the ground with her arms. Subsequent to this incident, \nclaimant  sought  medical  treatment  from  Dr.  Steve  Belinga,  a  neurologist.  Dr.  Belinga \ninitially believed that claimant’s complaints were related to her hands and ordered an \nEMG/NCV study. Those tests were read as being within normal limits. Nevertheless, Dr. \nBelinga  still  indicated  that  it  was  most  likely  that  claimant  suffered  from  carpal  tunnel \nsyndrome  and  cubital  tunnel  syndrome.  Dr.  Belinga  eventually  recommended  that \nclaimant see an orthopedist for injections and she apparently underwent injections from \nDr. Smithson at BH Orthopedic Clinic. Claimant returned to Dr. Smithson on November \n28,  2023,  and  reported  complete  relief  of  numbness  and  tingling.  Dr.  Smithson  also \nnoted that claimant was still having aching pain in her shoulder area. Notably, just a few \n\nHill – H501091 \n \n-8- \ndays  after  her  visit  with  Dr.  Smithson  and  what  she  reported  complete  relief  of \nnumbness and tingling, she was again seen by Dr. Belinga who noted that claimant had \nbeen placed on steroids recently and that was the only relief she was receiving. There is \nno  indication  that  Dr.  Belinga  was  aware  that  claimant  had  seen  Dr.  Smithson  a  few \ndays earlier and her report of complete relief of numbness and tingling.  \n At  this  point,  there  is  a  gap  between  the  last  medical  visit  with  Dr.  Belinga  on \nDecember 4, 2023, and an MRI scan of claimant’s bilateral shoulders on December 10, \n2024, some two months prior to February 7, 2025. Claimant testified that the MRI scan \nof her bilateral shoulders was recommended by her primary treating physician.  \n A  follow-up  visit  after  the  MRI  scan  in  December  2024  was  scheduled  with \nSamantha  Chandler-Herbert,  a  nurse  practitioner  at  the  Choctaw  Nation  Medical \nCenter, for March 31, 2025. Prior to that follow-up evaluation, the incident on February \n7,  2025,  occurred  and  claimant  was  evaluated  by  Dr.  Clark  on  at  least  four  occasions \nprior to the visit with Chandler-Herbert. \n As  previously  noted,  claimant  eventually  underwent  a  second  MRI  scan  on  her \nright  shoulder as  ordered  by  Dr.  Clark.  Thereafter,  she  was  referred  to  Dr.  Tobey  for \northopedic evaluation and he performed surgery on the claimant’s right shoulder. Dr. \nTobey’s primary diagnosis from the surgery involved a right shoulder SLAP tear. \n Following claimant’s second MRI scan, respondent had various medical records, \nincluding both MRI scans, reviewed by Dr. Shane McAlister, a radiologist. Dr. McAlister \nopined that after reviewing both the December 2024 MRI scan and the MRI scan taken \nafter  February  7  that  the  findings  were  the  same  with  no  evidence  of  any  acute \ntraumatic injury. Specifically, Dr. McAlister stated: \n\nHill – H501091 \n \n-9- \nAfter  reviewing  these  records  and  the  submitted  diagnostic \nimaging,  I  do  not  see  any  evidence  of  any  acute  traumatic \ninjury  of  the  right  shoulder  from  the  fall  of  2-7-2025,  but \nrather  evidence  of  old  pathology  that  was  well  seen  on  the \nDecember  2024  right  shoulder  MRI  scan.  The  findings  do \ncorrelate with the physical examination findings of Dr. Tobey \non his office visit of 4-30-2025. \n \n Notably, Dr. McAlister is the only treating physician who has reviewed both MRI \nscans.  In  fact,  there  is  insufficient  evidence  that  claimant’s  treating  physicians  after \nFebruary 7, 2025, were even aware of claimant’s prior right shoulder complaints and the \nDecember  2024  right shoulder  MRI  scan.  Although  claimant testified  that  she  reported \nto  both  Dr.  Clark  and  Dr.  Tobey  that  she  had  prior  right  shoulder  complaints  and  had \nundergone  an  MRI  scan,  none  of  the  medical  records  from  either  Dr.  Clark  nor Dr. \nTobey mention these prior complaints or the prior MRI scan. In short, I find no evidence \nthat  either  of  these  physicians  was  aware  of  those  prior  complaints  and  as  a  result, \nneither of those physicians reviewed both MRI scans.  \n As previously noted, in order to establish a compensable injury, claimant has the \nburden  of  meeting  all  definitions  of  a  compensable  injury.  This  includes  medical \nevidence  supported  by  objective  findings.  Here,  according  to  the  opinion  of  Dr. \nMcAlister,  the  objective  findings  on  the  April  3,  2025,  MRI  scan  are  the  same  findings \nthat were present on the December 10, 2024, MRI scan. Given that Dr. McAlister is the \nonly physician who has evaluated both pre and post February 7, 2025, MRI scans, I find \nthat his opinion is credible and entitled to great weight. Accordingly, I find that claimant \nhas  failed  to  offer  medical  evidence  supported  by  objective  findings  establishing  injury \nto her right shoulder on February 7, 2025. \n \n\nHill – H501091 \n \n-10- \nORDER \n Claimant  has  failed  to  meet her  burden  of  proving  by  a  preponderance  of  the \nevidence  that  she  suffered  a  compensable  injury  to  her  right  shoulder  on  February  7, \n2025. Therefore, her claim for compensation benefits is hereby denied and dismissed. \n Respondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $607.50. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":16197,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H501091 KRISTI HILL, Employee CLAIMANT INCITE REHAB, LLC, Employer RESPONDENT CCMSI, Carrier RESPONDENT OPINION FILED NOVEMBER 12, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Claimant represented ...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1","denied:1"],"injuryKeywords":["shoulder","sprain","back"],"fetchedAt":"2026-05-19T22:34:25.012Z"},{"id":"alj-H107721-2025-11-12","awccNumber":"H107721","decisionDate":"2025-11-12","decisionYear":2025,"opinionType":"alj","claimantName":"Andrew Vanlente","employerName":"City Of Ward","title":"VAN LENTE VS. CITY OF WARD AWCC# H107721 November 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/VanLente_Andrew_H107721_20251112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"VanLente_Andrew_H107721_20251112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H107721 \n \n \nANDREW VAN LENTE, EMPLOYEE CLAIMANT \n \nCITY OF WARD, \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. MUNICIPAL LEAGUE, \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED NOVEMBER 12, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on August 14, 2025, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  Ms. Karen  H.  McKinney,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On August  14,  2025,  the  above-captioned  claim  was  heard  in  Little  Rock, \nArkansas.  A prehearing conference took place on June 2, 2025.  The Prehearing Order \nentered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection  as \nCommission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit  1.    After  amendments  thereof at  the  hearing,  they  are  the  following,  which  I \naccept: \n\nVAN LENTE – H107721 \n2 \n \n 1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The  employee/self-insured  employer/third-party  administrator  relationship \nexisted   on   September   17,   2021,   when   Claimant   sustained   multiple \ncompensable  injuries,  both  of  a  scheduled  and  an  unscheduled  nature, \nwhen he was struck by a motor vehicle. \n3. Respondents have accepted this claim as compensable and paid medical \nand  indemnity  benefits  pursuant  thereto,  including  a  combined  values \nrating of nineteen percent (19%) to the body as a whole that was assigned \nby  Functional  Testing  Centers,  Inc.    Thereafter,  based  on  a  March  12, \n2025,   report   by   Dr.   Barry   Baskin,   Respondents  accepted  additional \nimpairment ratings equivalent to nine percent (9%) to the body as whole. \nIssues \n The  parties  discussed  the  issues set  forth  in  Commission  Exhibit  1.   After  an \namendment at the hearing, the following were litigated: \n1. Whether Claimant is entitled to higher impairment rating(s), and additional \npermanent  partial  disability  benefits  pursuant  thereto,  in  connection  with \nhis stipulated compensable injuries. \n2. Whether Claimant is permanently and totally disabled or, in the alternative, \nentitled  to  wage  loss  disability  benefits,  in  connection  with  his  stipulated \ncompensable injuries. \n3. What was Claimant’s average weekly wage? \n\nVAN LENTE – H107721 \n3 \n \n4. Whether Claimant is entitled to a controverted attorney’s fee. \nAll other issues have been reserved. \nContentions \n The  respective  contentions  of  the  parties,  following  amendment  at  the  hearing, \nread as follows: \n Claimant: \n1. Claimant  contends  that  he  sustained  injuries  to  his  head,  neck,\n1\n left  arm, \nleft  shoulder,  back,  bilateral  pelvis,  right  leg,  right  ankle,  and  right  foot  in \nthe  course  and  scope  of  his  employment  on  about  September  17,  2021.  \nHe was a pedestrian and was struck by a fast-moving vehicle on highway \n67/167,  resulting  in  numerous  injuries  all  over  his  body.  Respondents \nhave  accepted  the  claim and  paid  temporary  total  disability  benefits,  plus \nsome medical expenses. \n2. Respondents miscalculated  the  claimant’s  average  weekly  wage  and \ncompensation  rates,  resulting  in  an  underpayment  of  indemnity  benefits.  \nHe  was  earning  $17.00  per  hour  at  the  time  of  his  injury.   The  wage \nrecords  furnished  by  Respondents  show  that  he  worked  2,264.50  hours \nover  the  52  weeks  preceding  his  injury,  which  equal  to  184.5  hours  of \novertime.    Also  during  that  52-week  period,  he  received  two  bonuses \n \n \n1\nClaimant in his testimony denied that he suffered any head or neck injury.  See \ninfra. \n\nVAN LENTE – H107721 \n4 \n \ntotaling $500.00.  The calculation of ($17.00 x 2080) + $4,704.00 + $500 ÷ \n52 = $780.00.  This results in compensation rates of $514.00/$386.00. \n3. Claimant further contends  that he  is  entitled  to  the underpayment of \nindemnity  benefits  based  on  the  foregoing,  along  with  a  controverted \nattorney’s   fee   thereon.      He   was   given   a   nineteen   percent   (19%) \nimpairment rating  to  the  body  as  a  whole  for  the  combination  of  his \nimpairments  for  his  upper  body,  shoulder,  pelvis,  and  gait derangement, \nwhich Respondents accepted. \n4. Claimant   contends   that   he   is   entitled   to   additional   impairment   in \naccordance  with  the Fourth Edition  of  the AMA  Guides,  per  the  report  of \nDr. Barry Baskin. \n5. Also, Claimant contends that he is permanently and totally disabled or, in \nthe  alternative, entitled  to  wage  loss  disability  benefits.  His  attorney  is \nentitled to a controverted attorney’s fee thereon. \n6. All other issues have been reserved. \n Respondents: \n1. Respondents contend that they have accepted this claim as compensable \nand have not controverted his right to any benefits.  Claimant was found to \nbe  at  maximum  medical  improvement  on  November  8,  2023.  He  was \nassessed a 19% impairment rating to the body as a whole on February 5, \n2024.  This rating  has  been  accepted,  and  permanent  partial  disability \nbenefits are currently being paid therefor.  Claimant, through his attorney, \n\nVAN LENTE – H107721 \n5 \n \nrequested that Dr. Baskin evaluate him for a permanent impairment rating.  \nThe doctor issued a report on March 12, 2025, in which he opined that the \noriginal rating of nineteen percent (19%) included a fifteen percent (15%) \nrating  for  gait derangement.  In his  report,  Dr.  Baskin  stated  that  a  rating \nbased  on  gait derangement  is  only  to  be  used  when  there  is  no  other \nmeans  to  assess  an  impairment  rating.  He  reviewed  the  EMG/NCV \nstudies  done  in  2022,  and  concluded  that  they  provide  other  means  to \nassess Claimant’s impairment.  According to him, Claimant has a twenty-\nfour percent (24%) impairment  rating to  the  body as  a whole  for  his  left \nlower  extremity  injury.  The  doctor specifically stated in his report, “using \nthe  nerve  conduction  studies  and rating  Mr.  Van  Lente on  those  as \nopposed  to  using a gait derangement  abnormality  which  is  a  stand-alone \nrating does  provide [him] with  a  9%  whole  person  impairment  more  than \n[the] rating  on  the  gait derangement alone.”  Respondents previously \naccepted  and  paid  the nineteen  percent  (19%)  rating, which  was  for  the \nfifteen percent (15%) gait derangement, one percent (1%) to the shoulder, \nand  two  percent  (2%) for  the  pelvic  injury.  Respondents  accepted  and \nhave paid this additional nine percent (9%) impairment as assessed by Dr. \nBaskin.  Respondents  contained  that  they relied  upon  the  impairment \nrating as issued on February 5, 2024, and approved by Dr. Regis Renard \non March 6, 2024, in good faith. Claimant made a formal request for a new \nor  additional  evaluation  for  an  impairment rating.  Upon  being  presented \n\nVAN LENTE – H107721 \n6 \n \nwith  Dr. Baskin’s additional rating, Respondents  accepted  and  paid  the \nadditional nine percent (9%) as assessed by him. \n2. Claimant has also requested permanent and total disability benefits, or in \nthe  alternative,  wage  loss  disability  benefits.    While  his  physicians  have \nopined  that  he  may  not  be  able  to  return  to  work  as  a  police  officer,  no \nphysician  has  opined  that  he  is  permanently  and  totally  disabled.    The \nfunctional  capacity  evaluation  revealed  that he  is  capable of  working  in a \nmedium  duty  job  classification.    Respondents  obtained  a  vocational \nassessment  evaluation.    This  evaluation  revealed  that  he  has  many \ntransferable  skills,  and  identified  numerous  sedentary  and  light-duty  jobs \nfor  which  he  was  qualified.    Therefore,  Respondents  also  contend  that \nClaimant  is  not  permanently  and  totally  disabled,  nor  has  he  sustained \nsubstantial wage loss disability, if any. \n3. With respect to the average weekly wage issue, the Form AR-W prepared \nby  Respondents  has  one  typographical  error:    Line  19  should  read \n$1,609.50  instead  of  $1,509.50.    The  52  weeks  preceding  Claimant’s \ninjury are otherwise accurately reflected on that form.  Claimant received a \nraise  during  that  period.    Pursuant  to Lankford  v.  Crossland  Constr.  Co., \n2011  Ark.  App.  416, 2011  Ark.  App.  LEXIS 451, the  proper  method  to \naccount for this is to use all of the earnings and then divide by 52.  As for \nClaimant’s  bonuses,  they  were  excluded  from  the  calculation  because \nthey  were  considered  fringe  benefits  under Taylor  v.  Lubritech,  75  Ark. \n\nVAN LENTE – H107721 \n7 \n \nApp. 68, 54 S.W.3d 132 (2001).  Finally, Claimant only worked about 10.5 \nto 12 hours of overtime in the year preceding his injury.  Many of the hours \nthat he is terming “overtime” were not considered as such and were not \ncompensated as such.  Taking all of this into account, his average weekly \nwage was actually $701.48, yielding compensation rates of $468/$351.00. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe testimony of the claimant and to observe his demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant has failed to prove by a preponderance of the evidence that he is \nentitled  to  impairment  ratings in  addition  to  and/or higher  than  those  set \nforth in Stipulation No. 3, supra. \n4. Claimant has failed to prove by a preponderance of the evidence that he is \npermanently and totally disabled. \n5. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  has \nsustained wage loss disability of fifteen percent (15%). \n\nVAN LENTE – H107721 \n8 \n \n6. The preponderance of the evidence establishes that Claimant’s average \nweekly   wage   was   $699.57,   entitling   him   to   compensation   rates   of \n$466.00/$350.00. \n7.  Claimant has not proven by a preponderance of the evidence that he has \nbeen  underpaid  indemnity  benefits  based  on  a  miscalculation  of  his \naverage weekly wage. \n8. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  his \nattorney, the Hon. Andy L. Caldwell, is entitled to a controverted fee on the \nindemnity benefits awarded herein, pursuant to Ark. Code Ann. § 11-9-715 \n(Repl. 2012). \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n Along  with  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence in this case were Claimant’s Exhibit 1, a compilation of his medical  records, \nconsisting  of three index  pages and 421 numbered  pages  thereafter; Claimant’s non-\nmedical  records,  consisting  of  one  index  page  and  32  numbered  pages  thereafter; \nClaimant's  Exhibit  3,  the  previous  Prehearing  Order  plus  the  prehearing  questionnaire \nresponses of the parties, consisting of 11 pages; Claimant’s Exhibit  4,  the  August  12, \n2025, email from Claimant’s counsel to Respondents’ counsel concerning the bases for \nthe former’s calculation of his client’s average weekly wage, consisting of one page; \nRespondents’ Exhibit 1, another compilation of Claimant’s medical records, consisting \n\nVAN LENTE – H107721 \n9 \n \nof two index  pages  and 101 numbered  pages  thereafter;  and  Respondents’ Exhibit  2, \nnon-medical records, consisting of one index page and 50 numbered pages thereafter. \nAdjudication \nA. Permanent Partial Disability Benefits \n Introduction.    As   reflected   in   Stipulation   No.   3,   Claimant   was   assigned \nimpairment  ratings  equal  to nineteen  percent  (19%)  to  the  body  as  a  whole  by \nFunctional Testing Centers, Inc. (“FTCI”), on February 5, 2024.  Thereafter, on March \n12,  2025,  Dr.  Barry  Baskin authored  a  report  in  which  he  assigned  permanent \nimpairment ratings equivalent to an additional nine percent (9%) to the body as whole.  \nRespondents have accepted the aforementioned ratings, which when combined amount \nto twenty-eight percent (28%) to the body as a whole; and have been paying Claimant \npermanent partial disability benefits pursuant to this. \n In this proceeding, Claimant is seeking to be awarded permanent ratings higher \nthan that accepted by Respondents, and permanent partial disability benefits thereto, in \nconnection   with   his stipulated compensable   injuries of September 17,   2021.  \nRespondents dispute that  Claimant is  entitled  to  any  ratings/benefits  over  and  above \nthat which they have already accepted. \n Standards.      Permanent   impairment,   generally   a   medical   condition,   is   any \npermanent  functional  or  anatomical  loss  remaining  after  the  healing  period  has  been \nreached.  Ouachita Marine v. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969).  Pursuant \nto Ark. Code Ann. § 11-9-522(g) (Repl. 2012), the Commission adopted the AMERICAN \nMEDICAL ASSOCIATION,  GUIDES TO THE EVALUATION OF PERMANENT IMPAIRMENT (4th \n\nVAN LENTE – H107721 \n10 \n \ned. 1993) (hereinafter “AMA Guides”) as  an  impairment  rating  guide.   See AWCC  R. \n099.34.    A  determination  of  the  existence  or  extent  of  physical  impairment  must  be \nsupported by objective and measurable physical or mental findings.  Ark. Code Ann. § \n11-9-704(c)(1)(B)  (Repl.  2012).   “Objective findings” are “those findings which cannot \ncome under the voluntary control of the patient.”  Id.  §  11-9-102(16)(A)(i).    Permanent \nbenefits are to be awarded only following a determination that the compensable injury is \nthe  major  cause  of  the  disability  or  impairment.   Id.  §  11-9-102(4)(F)(ii)(a).    “Major \ncause” is defined as “more than fifty percent (50%) of the cause,” and a finding of major \ncause  must  be  established  by  a  preponderance  of  the  evidence.   Id.  §  11-9-102(14).  \nThis standard means the evidence having greater weight or convincing force.  Barre v. \nHoffman,  2009  Ark.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212 \nArk. 491, 206 S.W.2d 442 (1947). \n Any  medical  opinion concerning  impairment must be  stated  within a  reasonable \ndegree of medical certainty.  Ark. Code Ann. § 11-9-102(16)(B) (Repl. 2012).  It should \nbe  noted,  however,  that  in  interpreting  this  provision,  the  Arkansas  Supreme  Court  in \nFreeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001) stated:  “This \ncourt  has  never  required  .  .  .  that  the  magic  words  ‘within  a  reasonable  degree  of \nmedical certainty’ even be used by the doctor.” \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \n\nVAN LENTE – H107721 \n11 \n \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Evidence\n2\n.   Claimant  testified  that  at  the  time  of  his  September  17,  2021, \naccident that is the subject of this litigation, he had been employed as a police officer for \nRespondent  City  of  Ward  for approximately  six years.   Asked  how  he  got  hurt,  he \nrelated: \nI  was  coming  back  from  Cabot on 67/167 North . . . around 6:00 o’clock, \n7:00 o’clock [p.m.], I believe  I was just coming back from lunch.  I had just \nspoken with the night shift officer.  He said he was going to go grab lunch.  \nI was like, “Yeah, go ahead.  I’m on my way back now.”  I drove up on a \nState Police vehicle on the left side of the road along with—I don’t recall if \nit was two or three other vehicles around Mile Marker 21, and I stopped to \nassist  him  if  he  needed  assistance,  try  to  manage  traffic  a  little  bit.   I \nstopped on the right side, and I remember backing up quite a ways to try \nto  slow  traffic—slow  traffic  down  before  they  got  there.    The  last  thing  I \nremember was exiting the car, and the next thing I remember was feeling \nuncomfortable  and  couldn’t  really  see  or  hear,  and  I  knew  something \nhappened, something was wrong, but I didn’t know what.  I had no idea \nwhat had happened. \n \nLater, Claimant learned that he had been struck by an automobile. \n He  was  taken  by  air  ambulance  to  the  University  of  Arkansas  for  Medical \nSciences (“UAMS”), where he stayed for five or six days.  Asked to list the parts of his \nbody that were injured, Claimant related that his pelvis, right leg and ankle, left arm, left \n \n \n2\nThe  evidence  discussed  in  the  context  of  this  issue  also  has  bearing  on  the \nissue of whether Claimant is permanently and totally disabled, or entitled to wage loss \ndisability benefits.  See infra. \n \n\nVAN LENTE – H107721 \n12 \n \nshoulder, and  left hip had  been  hurt.   Following  his  hospitalization,  Claimant  went  to  a \nrehabilitation center for a month. \n It  was  Claimant's  testimony  that  he  was  non-weight-bearing  for  five  to  six \nmonths.  He developed a pressure sore on the back of his right heel because his cast \nwas too tight.  Due to disuse, his right foot turned inward. \n On  cross-examination,  Claimant stated  that  his  most  recent  surgery,  to  correct \nhis foot inversion, did not help.  He is still suffering from pain in that extremity.  His foot \ndrop is due to nerve damage that he suffered when he sustained a fracture just below \nthe knee when he was struck by the vehicle. \n Claimant in his testimony recounted that the multiple injuries that he sustained in \nthe  accident  at  bar  included  a  fracture  of  the  left  humeral  head,  a  fracture  of  the \nposterior iliac of the sacroiliac joint, a fracture of the right pubic bone, three fractures of \nthe right lower extremity, multiple fractures of his right foot.  While initially hospitalized, \nClaimant underwent three separate surgeries to stabilize his hip/pelvis, to stabilize and \nfix  his  right  lower  extremity  and  foot,  and  to  place  a  pin  in  his  arm.    Claimant \nacknowledged  that  he  was  “very  fortunate”  that  the  above  were  his  only  injuries, \nconsidering that he was struck by a vehicle moving at high speed.  His neck, back, and \ninternal organs were not harmed, nor did he suffer any amputations or paralysis.  When \nhe left the hospital, it was on a stretcher because he had to be non-weight-bearing due \nto his pelvic injuries.  Later, he remained non-weight-bearing on his right leg.  While his \nmedical records reflect that his foot drop condition has improved slightly, Claimant took \nissue with this. \n\nVAN LENTE – H107721 \n13 \n \n The  medical  records  in  evidence  show  that  Claimant  presented  on  September \n17, 2021, to UAMS as a Level 1 Trauma patient after being struck by a motor vehicle at \nhighway  speed.   Examination  showed  him  to  have,  inter  alia,  compression  of  the  iliac \ncrests  and  symphysis  pubis,  along  with  “significant  deformity”  of  the  right  lower \nextremity.  A tourniquet had been applied to the right leg prior to Claimant’s arrival at the \nhospital.   After  being  given  Ketamine  for  pain,  he  became  disoriented  and  combative.  \nAs  a  result,  he  had  to  be  intubated  so  that  his  scans  could  be  completed.   He  was \nassessed as having the following: \n-Comminuted left humeral head fracture \n-Left posterior iliac fracture extending into the sacroiliac joint with possible \nsubtle buckle fracture of the left sacral ala [sic] \n-Right ischia ramus buckle fracture \n-Right pubic body fracture without pubic diastasis \n-Comminuted and distracted right tibia and fibular fractures \n-Comminuted smashed right midfoot and forefoot fractures \n-Minimal  asymmetric  facet  widenting  [sic]  right  C5-6  likely  degenerative \ngiven facet and uncal [sic] hypertrophy resulting in severe right NF \nstenosis \n-Possible injury of right popliteal artery vs. basal spasm\n3\n \n \nThe  CT  scan  of  Claimant’s  left  upper  extremity  showed  a  “[c]omminuted  mildly \ndisplaced  and  impacted  humeral  neck  fracture  with  comminution  involving  the  lesser \nand greater tuberosities.”  The more extensive findings of the scan of his right lower \nextremity were the following: \nFindings    consistent    with    Lisfranc    injury    with    multiple    displaced \ncomminuted    fractures    of    the   tarsals    and   metatarsals   along    the \n \n \n3\nAnother  record  from  UAMS  references  Claimant  having  a  fracture  of  the right \nfemur.    However,  the  balance  of  the  records  is  silent  about  this,  and  Claimant  did  not \nreference this in his hearing testimony. \n\nVAN LENTE – H107721 \n14 \n \ntarsometatarsal  articulations.    Associated  subluxation  and  dislocation \ninvolving all tarsometatarsal articulations as described above. \n \nAdditional fractures of distal 3\nrd\n and 5\nth\n metatarsals. \n \nDistal tibial fracture with stabilizing intramedullary nail partly visualized. \n \nAn x-ray of that lower extremity revealed: \nAgain noted is mildly comminuted and displaced fracture of the head and \nneck region of the right fibula.  There is comminuted fracture of the distal \nshaft of the tibia with butterfly fragment posteriorly.  There is also impacted \nand displaced fracture of the junction of the proximal and mid shaft of the \ntibia. \n \nX-ray of the pelvis reflected a fracture of the pubic bone on the right side of the junction \nwith  the  superior  pubic  ramus.  A  CT  scan  of  Claimant’s  cervical  spine  showed \ndegenerative changes at multiple levels, including moderate severe left neural foraminal \nnarrowing  at  C4-5,  severe  right  neural  foraminal  narrowing  at  C5-6,  and  moderate left \nC6-7 neural foraminal narrowing. \n Claimant was given units of blood.  An intramedullary rod with proximal and distal \ninterlocking screws were surgically installed in Claimant’s right fibula on September 19, \n2021.  As part of that surgery, a wound on his calf was irrigated and debrided.  Claimant \nalso underwent an open reduction/internal fixation of his proximal humerus fracture, and \na pelvic percutaneous fixation, on September 20, 2021.  Later, on September 23, 2021, \nClaimant  underwent  a  right  mid-foot  fusion.\n4\n  Dr.  Renard  performed  all  of  these \nsurgeries. \n \n \n4\nOne of the pre-and post-operation diagnoses listed in the report on the mid-foot \nfusion  is  “acute  kidney  injury.”   There  are  references  to  it  elsewhere  in  Claimant’s \nrecords that are in evidence.  But he did not mention it in his testimony; to the contrary, \n\nVAN LENTE – H107721 \n15 \n \n A  note  by  LMSW  Carmen  Coody at  UAMS reflects  that  Claimant  “state[d]  he \nstruggles  with  anxiety,  depression  and  PTSD since  childhood  and  is  receive[n]g \nmedication  management  and  therapy.”  His  patient  history  includes  the  following \nreference:  “PSH of lumbar fusion.” \n On  September 27,  2021,  Claimant  was  discharged  from  UAMS and  transported \nby ambulance to Lonoke Heath and Rehabilitation, a skilled nursing facility.  Dr. Carlos \nRoman evaluated him on October 4, 2021.  His report reads in pertinent part: \nThe  patient  is  a  46-year-old  gentleman.  He  is  a  police  officer.  He  was \nworking  the  scene  of  an  accident  when  a  truck  hit  him  directly.  He  was \nthe  pedestrian  in  a  motor  vehicle  accident.  He  had  multi-orthopedic \ntrauma to include severe right humerus fracture, closed crush injury to his \nright  foot, closed  pelvic  fracture,  and  right  proximal  severe  open  tibia \nfracture.  He  was  taken  to  UAMS Orthopedic Trauma.  He  was  seen  by \nDr. Renard.  He initially underwent surgery on the pelvis with placement of \na  pin.  He  underwent  iliac  sacral  screw  placement  and  reduction  and \ninternal  fixation  of  the  left  humerus  by  way  of  a  Delta  pectoral  incision.  \nThey used to [sic] fibular straight autograft. \n \nOn   September   19,   2021,   his   right tibia fracture   was   treated   with \nintramedullary  rod  placement.  He  also  underwent  I&D [irrigation  and \ndebridement] of a wound from a posterior calf soft tissue trauma. \n \nHe also had Lisfranc fracture of the mid foot on the right with crush injury \nof the first through third metatarsal.  He underwent reduction and internal \nfixation of the foot on September 23, 2021. \n \nHe  suffered  an  acute  kidney  injury  and  kidney  contusion.  There  was  no \nother visceral trauma. \n \nHe  is  currently  in  a  rehab  facility.  He  remains  non-weight-bearing.  He  is \non  a  stretcher.  He  can  sit  up  for  just  a few minutes  at  a  time  due  to  the \npain  in  his  pelvis.  He  is  completely  non-weight-bearing  on  the  right  leg.  \n \nhe stated that he suffered no damage to any of his internal organs as a result of being \nstruck  by  the  automobile.    Regardless,  he  was  not  assigned  a  permanent  impairment \nrating in connection with it, and has not requested that the Commission do so. \n\nVAN LENTE – H107721 \n16 \n \nThe  left  leg  had  an  ankle  sprain,  but  was  spared  any  major  trauma.  His \nleft arm is in a sling. \n \nPrior  to  the  injury,  he  had  previous  lumbar  fusion  and  decompressive \nsurgery.  He  was a  legacy opiate patient.  He  was  on  oxycodone,  10 mg \ntablets,   four   times   a   day   prior   to   the   injury.  He   was   also   on \nantidepressants  prior  to  the  injury.  He  had  some  pre-existing  opiate \ntolerance that obviously poses some challenges as far as making sure he \ngets appropriate pain control, and making sure he gets a great rehab and \ngets the best possible outcome from this injury. \n \nDr. Roman adjusted Claimant’s medications and assessed him as having: \n1.  Multi-orthopedic trauma \n2.  Pelvic fracture \n3.  Right tibia fracture \n4.  Crush injury to right foot \n5.  Left humerus fracture \n6.  Legacy opiate patient \n7.  Opiate dependency \n \n On  September  28,  2021,  Claimant  returned  to  UAMS  for  evaluation  by  Dr. \nRenard’s office.  The report reads in pertinent part: \n1) Closed  segmental  right  tibia and  fibula fractures  complicated  from  foot \ndrop likely from proximal fibular neck fracture with displacement at time of \ninjury.  He has healed his road rash and surgical wounds.  His sutures can \nbe  removed.  It  is  too  soon  to  begin  weight bearing  on  the  right  lower \nextremity for about 8 weeks.  We will monitor his foot drop, however, it is \npossible  that  he  will  require  perm[anent] foot bracing  with  ambulation. \nFollowup in 4 weeks with repeat radiographs of the right tibia and fibula. \n \n2) Crush injury about the right foot s/p Lisfranc arthrodesis and pinning of \nthe lateral TMT joints.  Sutures can be removed.  He will be placed into a \nshort  leg  cast  for  the  next  few  weeks.  It  is  too  soon  to  begin  weight \nbearing on the right lower extremity.  Likely about 8 weeks until advancing \nweight bearing. Follow up in 4 weeks with radiographs of the right foot out \nof  the  cast  and  likely  removal  of  the  right  foot  pin.  I  anticipate  that  the \npatient  will  have  some  perm[anent] degree  of  dysfunction  about  the  right \nfoot given the amount of crush injury and fractures about his foot once he \nobtains maximal medical improvement. \n \n\nVAN LENTE – H107721 \n17 \n \n3) Pelvic  ring  injury s/p percutaneous  fixation.  I  will  allow  the  patient  to \npost and pivot with full weight on the left lower extremity at this time.  He is \nnot  allowed  to  try  to  formally  ambulate  on  the  left  lower  extremity  as  he \ncannot  bear  any  weight  on  the  right  lower  extremity  at  this  time  and  I  do \nnot  want  him  to  accidentally  hop  on  the  LLE.  Follow  up  in 4 weeks  with \nradiographs AP, Inlet, Outlet   views   of   the   pelvis,   and   probably \nadvancement to full weight bearing on the left lower extremity. \n \n4) Left  proximal  humerus  fracture:  encourage  ROM  of  the  left  shoulder.  \nActive  motion  for  ADL’s  of  the  left  elbow,  wrist  and  hand.  Followup  in 4 \nweeks with repeat radiographs of the left shoulder and likely advancement \nto  5  pounds  weight bearing  on  the  left  upper  extremity  and  increase  in \nactive shoulder motion and strengthening with therapy.  I anticipate that he \nwill  have  a  certain  degree  of  left  shoulder  stiffness  after  the  injury  and \nsurgery,  however  with  aggressive  therapy  I  hope  we  can  minimize  his \nfuture shoulder dysfunction. \n \n- Overall  he  is  unable  to  resume  any  work  at  this  time  secondary  to  his \nmultiple injuries.  Until he has better function of his LUE would I consider \nallowing desk duty. \n \n- Pain as per pain provider is recommended.  I can provide temporary pain \nmedication if needed. \n \n On October 13, 2021, Renard wrote that he was keeping Claimant off work until \nhis November 10, 2021, reevaluation.  Dr. Roman saw Claimant again on November 1, \n2021, and noted that because Claimant was already a patient at his clinic and had been \ntaking opiates before the accident, he would have drug tolerance and a need for more \nopiates than a typical patient.  Per his visit to Dr. Renard’s office on November 2, 2021, \nClaimant  developed  a  decubitus  ulcer  on  his  injured  foot  and  discoloration  of  the  toes \non  that  same  foot.  He  developed  MRSA  (methicillin-resistant  staph  aureus)  in  that \nlower  extremity  and  was  treated  with  antibiotics.   On  November  10,  2021,  Renard \nincreased Claimant’s weight restrictions to 10 pounds on his left upper extremity,  but \nkept him non-weight-bearing on his right lower extremity.  His left shoulder was injected.  \n\nVAN LENTE – H107721 \n18 \n \nThe  doctor  kept  him  off  work  an  additional  four  weeks.    Dr.  Roman  on  November  23, \n2021, noted that  Claimant  has  fibular nerve  palsy along  with  numbness  and  tingling  in \nhis feet.  Per wound care notes on November 24, 2021, his ulcer and toe discoloration \nimproved. \n On December 8, 2021, Dr. Renard wrote that Claimant could return to light duty \nimmediately with the following restrictions:  “desk duty only, no lifting over 25 lbs., left \nupper  extremity,  non-weight  bearing  right  lower  extremity.    Please  allow  for  assistive \ndevices, i.e., wheelchair.”  He saw Renard for a 14-week follow-up on January 5, 2022.  \nThe  doctor  noted  that  he  had  removed  the  percutaneous  pins  from  Claimant’s  foot \nduring  his  last  visit.   Claimant  requested  another  shoulder  injection.    Renard  allowed \nhim  to  be  full  weight-bearing  with  his  left  upper  extremity.    However,  Claimant  was  to \nremain  non-weight-bearing  on  his  right  lower  extremity.    He  was  prescribed  a  PRAFO \n(pressure relieving ankle foot orthosis) to address his foot drop.  The doctor stated that \nClaimant could perform desk duty if available and perform “[e]ssentially computer work \nonly and answering phones/emails, etc.”  Dr.  Roman  saw  Claimant  again  on  January \n19, 2022, and noted that his right lower extremity showed “significant edema” along with \n“some calf atrophy.” \n Dr. Renard revisited Claimant’s restrictions on February 9, 2022, giving him a 25-\npound lifting  restriction  for  his  left  upper  extremity  and  “desk  duty  only.”   During \nClaimant’s five-month  follow-up  appointment  on  February  23,  2022,  Renard  found  him \nto be doing “fairly well,” and stated that “[h]e can advance his weight-bearing  continue \nwith therapy.  The report continues in pertinent part: \n\nVAN LENTE – H107721 \n19 \n \n5  months  s/p  right  Midfoot  arthrodesis  and  pinning.    Debridement  and \nintramedullary fixation of complex segmental right tibia fracture.  This point \ndoes   appear   this   is   associated   with   a   posterolateral   corner   injury.  \nAdditionally he has a decubitus ulcer on his heel with some backup.  We \nwill  get  a[n]  order  for  a  KAFO  with  an  open  [sic]  he  will  see  if  this  helps.  \nHe can weightbear in this brace.  So [sic] get a bone stimulator to see with \nthe  most  distal  aspect  of  his  tibial  fracture  to  heal  without  surgical \nintervention. \n \n. . . \n \nThe patient will likely be a maximal medical improvement (MMI) in about 4 \nmonths[’] time (assuming he heals his tibia fracture, however if he requires \nsurgical  revision  of  his  right  tibia  for  nonunion  MMI  will  be  about  9-12 \nmonths from  surgical  revision) ultimately  MMI  is  going  to  depend on  how \nhis healing of his right foot drop proceeds. \n \n Dr.  Baskin  conducted  a  second  opinion  evaluation  of  Claimant  on March  16, \n2022.  His report reads in pertinent part: \nIMPRESSION: \nMr.  Van  Lente is  a  nice  gentleman  referred  for  evaluation  of  polytrauma \ndating  back  to  September  17,  2021,  from  a  pedestrian  versus  motor \nvehicle accident.  He has had neuropsychological evaluation, and I do not \nhave  that  report.  He  has  had  previous  head  trauma  as  a  child.  He  has \nhad  previous  poly  trauma  otherwise.  From  the  accident  September  17, \n2021, he has had a fracture of the left proximal humerus that is status post \nORIF.  He  has  had  pelvic  fractures status  post  pinning,  and  an  SI  joint \nscrew,  it  appears.  He  has  had  segmental  fractures  of  the  right  tibia  and \nfibula  status  post  repair.  He  has  had  a  peroneal  nerve  palsy.  He  has  a \nprevious   history   of   back   pain,   neck,   pain,   and   some   headaches. \nNeuropsychological test results are not available. \n \nPLAN:   I  am  hopeful  he  will  get  some  return  of  his  peroneal  palsy, \nalthough  this  was  a  fracture  dislocation  of  the  proximal  fibula,  and  the \nnerve  could have  been  stretched  significantly.  Reportedly,  the  surgeon \nsaid  it  was not  severed.  We  will  eventually get  nerve  conduction studies \ndone.  He is going to get a KAFO to help with his ambulation on the right \nlower  extremity.  This  will  be  a  double  metal  upright  that  will  spare \npressure  to  his  heel.  He  does  have  a  pressure  sore  that  was  nearly \nhealed,  but  now  has  come  back.  He  sees Wound Care,  and  his  wife  is \nhelping manage the wound. \n\nVAN LENTE – H107721 \n20 \n \n \n. . . \n \nWe  will  get  him  set  up  for  EMG  and  nerve  conduction  studies  down  the \nroad a ways.  For  now,  I  think  just  clinical  observation  will  be  most \nappropriate.  He will continue his counseling with Mr. Knott in Conway.  I \nwould  like  to  look  at  his  neuropsychological  evaluation.  Cognitively  he \nseems  to  be  pretty  much  intact  at  this  point.  CT  of  his  head  and  neck \nwere  negative  for  acute  findings.  He  did  have  some  moderate  severe \nneural  foraminal  narrowing  in  the  cervical  spine.  I  will  see  him back  and \nfollow up in about a month or so.  I will follow him along.  At some point, \nhe will need an impairment rating.  I do not think he is ready to go back to \nwork just yet.  Dr. Renard has released him to 50 percent weightbearing to \nthe right lower extremity.  He is complaining of feeling unstable in the right \nknee.  I  did  not  do  a  detailed  knee  evaluation  today.  He  is  still  under \nfollow up with Dr. Renard and the orthopedic group.  The knee will have to \nbe addressed.  He had a lot of bone trauma and soft tissue injury that are \ncertainly  still  in  the  works.  I  will  look  forward  to  seeing  him  back  and \nfollow-up in about a month or so. \n \n Dr.  Renard  on  April  20,  2022,  again  wrote  that  Claimant  could  return  to  desk \nduty.    Twelve  days  later,  on  May  2,  2022,  he  again  operated  on  Claimant,  performing \nthe following procedures: \n1.  Removal  of  deep  hardware  from  the  right  tibia  for  the  purpose  for \ndynamization of the nonunion \n2.  Right fibula osteotomy \n3.  Bone marrow aspiration with injection to the right tibia nonunion \n4.  Partial  excision  of  right  hallux  toenail  for  treatment  of  infected \ningrown toenail \n \n Claimant underwent a  nerve  conduction  study  on  May  18,  2022.   The  report by \nDr. Michael Chesser reads: \nSevere  combined  right  common  peroneal  and  posterior  tibial  traumatic \nneuropathies.    There  was  no  residual  innervation  detected  in  the  right \nperoneus  longus,  and ˂ 25% estimated residual innervation in the tibialis \nanterior.      There   was - 25   to   50% residual   innervation   in   the \ngastrocnemius.    The  emg  needle  exam  of  the  right vastus lateralis  and \nbiceps femora was normal. \n\nVAN LENTE – H107721 \n21 \n \n \n Dr. Renard saw Claimant on May 18, 2022, and again wrote that he could return \nto desk duty.  The next day, May 19, 2022, Claimant again saw Dr. Baskin and reported \nthat  his  ankle  dorsiflexion  was  improving.   The  doctor wrote that Claimant “is making \nprogress but is still not ready to go back to work yet.”  He recommended that Claimant \nundergo an MRI of his right knee.  That MRI, which took place on June 2, 2022, showed \nno evidence of a meniscal tear or ligament injury, but did reveal degenerative findings.  \nBaskin’s June 23, 2022, report includes the following statement:  “He is interested in \ngoing  back  to  work,  and  I  think  we  are  about  there.”   Claimant  continued  in  pain \nmanagement and in physical therapy.  Dr. Roman wrote on July 27, 2022: \nHe  is  a  legacy  opiate  patient.    He  was  on  Percocet,  10mg  tablets  four \ntimes a day prior to the injury and we have brought that back down to his \nbaseline.    I  would  prefer  to  challenge  that  ever  lower  but  that  was  pre-\nexisting.    Whether  that  continues  to  be  covered  by  Workers’ \nCompensation or not, we will see.  Opiate counseling was done.  I would \nlove  to  see  him  at  a  lower  dose  for  just  general  health  reasons and  to \nmaintain effectiveness of the opiate. \n \n Dr. Baskin on August 8, 2022, wrote:  “Mr. Van Lente has completed his driving \nevaluation  and  passed.    It  is  okay  for  him  to  return  to  work  at  his  recommended \nrestrictions, and it is okay for him to drive.”  Renard concurred on August 24, 2022, \nstating  that  Claimant  “should  continue  work  with  current  restrictions.”   In   a \ncontemporaneous  document,  the  doctor  clarified  that  Claimant  should  be  working  no \nmore than four hours a day, and added:  “He is ambulating better with the AFO [ankle \nfoot  orthosis] and  modified  shoe  wear.    His  main  issue  is  residual  swelling.    He  may \nbenefit   from   lymphedema   clinic   evaluation   and   treatment   so   I   will   order   the \n\nVAN LENTE – H107721 \n22 \n \nconsultation.”  Dr. Baskin followed up on this on October 13, 2022, ordering Lympha \nPress garments for Claimant. \n Claimant returned to Renard’s office on November 23, 2022.  The note of that \nvisit reads in pertinent part:  “Will give patient updated PT order to transition to work \nhard therapy program.  Will update work note to light duty with 6 hour limit.”  Baskin \nreported on December 21, 2022, that Claimant was “doing some work hardening with \nFunctional Testing Centers” and was “making steady progress.”  After  seeing  him  on \nJanuary 9, 2023, Dr. Roman wrote: \nHe has returned to work.  He has a six-hour work limit.  He is on a more of \na light-duty with his foot and ankle, mostly doing paperwork there.  I think \nfor him it has been improvement for him mentally.  He has a strong desire \nto get back in the work force.  He is still struggling with the footdrop. \n \n On March 1, 2023, Claimant returned to Dr. Renard and reported that he had not \nonly  been  driving  but  had  been  working  desk duty for  four  hours  a  day.    The  report \ncontinues in pertinent part: \nIMAGING AND DIAGNOSTIC RESULTS  My interpretation of outside and \nour  radiographs  today  demonstrate  some  interval  healing  of  the  distal \nsegment of the right tibia fracture with stable hardware, no gap about this \nsite  after  dynamization  with  some  evidence  of  healing  of  the  fibular \nosteotomy  and  potential  bony  changes  where  the  tibia  is  now  loading  at \nprevious  gap  site.    Healed  right  midfoot  fusion.    Healed  left  proximal \nhumerus   fracture   with   area   of   some   impaction   about   the   greater \ntuberosity.  Healed pelvic ring. \n \nASSESSMENT    Mr.  Van  Lente  is  here  today  for  routine  re-evaluation  10 \nmonths  after  most  recent  surgery  for  his  left  [sic]  tibia  nonunion  with \ndynamization,  bone  marrow  aspiration  and  injection  to  the  nonunion  site \nand right fibular osteotomy and months after index surgery.  He has some \nimpingement/rotator  cuff  symptoms  about  the  left  shoulder  and  I  offered \nan injection to the left shoulder.  He can work some more with therapy for \nrotator  cuff  strengthening  in  the  future  if  he  has  issues  and  is  to  be \n\nVAN LENTE – H107721 \n23 \n \nconsidered  for  arthroscopy  or  other  procedures  about  the  left  shoulder  I \nwould recommend Dr. Justin Rabinowitz, our shoulder specialist as this is \na more complex issue than I think a sports surgeon could completely treat. \n \nHe  continues  to  ambulate  reasonably  with  the  AFO  and  modified  shoe \nwear.  His residual swelling seems to be controlled with compression sock \nand  therapy.   I think  the dynamization  is  healing  with  smoothening  of  the \nfracture lines and healing of fibula osteotomy site.  He can continue desk \nduty   work   if   available   working   no   more   than   4   hour   shifts   with \naccommodations for his crutches/walker. \n \nAs  he  had  done  previously,  Renard  upon  request  administered  an  injection  into \nClaimant’s injured shoulder to address pain issues that the doctor ascribed to “post-\ntraumatic arthritis.” \n When  Claimant  saw  Dr.  Baskin  on  April  4,  2023,  he  reported  that  he  was  now \nworking at desk duty for up to six hours a day.  He noted that Claimant’s use of the \nLympha Press could impact the number of hours he could be at work, and added:  “Dr. \nRenard has released him to full weightbearing and has allowed him to walk some out of \nthe AFO, but he has not done much of that yet.  I am pleased with his progress and he \nis as well.”  Renard on May 3, 2023, officially increased Claimant’s work restrictions to \nup to six hours per day.  The doctor added that Claimant “[m]ay stand, and walk as \ntolerated for tasks.” \n Dr. Baskin as part of a follow-up visit with Claimant on July 25, 2023, wrote: \nPLAN: \nI recommend that Mr. Van Lente increase his work to 7 hours a day, up to \n35 hours a week.  I do not believe he is ready to go on patrol at this point \ndue  to  potential  risk  to  himself  and  others  if  he  does.   He  is  a  veteran \npolice officer.  I believe he should continue to go to the gym and work on \nhis lower extremity strengthening.  I think his AFO currently is appropriate \nfor him.  I am not sure he will ever be able to return to patrol duty at this \npoint. \n\nVAN LENTE – H107721 \n24 \n \n \n On August 9, 2023, Dr. Renard stated that Claimant “is essentially at MMI at this \ntime,” but added that he could nonetheless require additional bracing, injections and \nother procedures in the future.  The report contains an addendum that reads:  “The \npatient  requests  Bridle  tendon  transfer  surgery  after  he  tried  AFO  modifications  and  it \nfailed  to  produce  the  results  that  he  had  hoped  it  would  achieve.    Will  find  a  date  to \nschedule.”  The doctor also authored a note that states: \nIt  is  my  medical  opinion  that  Mr.  Andrew  Van  Lente  is  cleared  to  work  7 \nhours  per  shift.    He  may  increase  his  hours  by  one  hour  per  shift as \ntolerated up to 12 hours per shift.  He may revert his work hours to the 7 \nhour minimum if working more than 7 hours per shift is not well-tolerated.  \nThe  length  of  his  shifts  may  vary  day-to-day  as  determined  by  Mr.  Van \nLente’s perception of his ability to tolerate work that day, but each shift \nshould be a minimum of 7 hours. \n \n On  October  2,  2023,  Dr.  Renard  again  operated  on  Claimant,  performing  the \nfollowing procedures: \n1.  Right posterior tibial tendon transfer to dorsal midfoot \n2.  Tenodesis of the right peroneus longus to brevis \n3.  Transfer of the right peroneus longus to the dorsal midfoot \n4.  Removal of deep hardware from the right midfoot cuneiforms \n \nSeeing him on October 11, 2023, Renard wrote that Claimant had been taken off work \nfrom the date of surgery until the date of the appointment; and that he was restricted to \ndesk duty “until cleared.”  On  November  8,  2023,  this  restriction  was  continued,  along \nwith  the  notation  that  Claimant  was  not  allowed  to  drive  until  he  could  be  tested  for \ndriver safety.  He was sent back to physical therapy. \n\nVAN LENTE – H107721 \n25 \n \n Casey  Garretson,  Occupational  Therapist,  evaluated  Claimant  on  February  5, \n2024,  for  the  purpose  of  assigning  him  a  permanent  impairment  rating.    His  report \nsummarizes: \n[Claimant]  has  sustained  2%  UEI  [upper  extremity  impairment],  1%  WPI \n[whole-person  impairment]  for  his  left  shoulder  injury,  a  15%  WPI  for  his \nright lower leg injuries and a 2% WPI for his pelvic injury. \n \nAccording to the [American Medical Association] Guides [to the Evaluation \nof  Permanent  Impairment,  Fourth  Edition]  these  are  combined  using  the \ncombined  values  chart  on  page  322,  resulting  in  a  19%  Whole  Person \nImpairment as a result of his work injury that occurred on 09-17-2021. \n \n On March 8, 2024, Dr. Renard opined that Claimant reached maximum medical \nimprovement as of November 8, 2023.  Claimant told Renard on July 24, 2024, that “he \nmay work as an instructor for EMS.”  That record continues:  “He can perform as much \nduties  with  his  right  lower  extremity  as  possible  with  AFO.”  Renard  warned  that \nClaimant \nmay   require   additional   procedures,   injections or   simply   therapy   for \nexacerbations.    He  may  require  new  braces  in  the  future  or  even \nadditional  fusion  procedures  about  there  [sic]  right  foot/ankle  over  time.  \nHe  ultimately  may  need  to  consider  changing  occupation  based  on  the \nfinal limitations. \n \nDr.  Renard  on  September  18,  2024,  wrote  that  Claimant  was  directed  to  use  the \nLympha Press on a “PRN basis as need during non work hours.” \n In the most recent report by Dr. Roman that is in evidence, dated December 11, \n2024, he wrote in pertinent part: \n\nVAN LENTE – H107721 \n26 \n \nHISTORY OF PRESENT ILLNESS: \n \n. . . \n \nHe  developed  a  chronic  foot  drop.  They  did  a  tendon  transfer  by  Dr. \nRenard  last  year,  which  did  help  with  the  dorsiflexion.  He  has  got  some \nbetter use of the foot, but it is still unstable with lateral motion, so a lot of \npain   in   the   joint,   itself.   At   this   point,   he   is   at   maximum   medical \nimprovement.  He  does  not  need  any  further  surgeries  and  none  are \nscheduled.  He does use an AFO device on the right foot at times, but the \ntendon transfer I think was of benefit.  It did not help the pain as much as I \nthink he wanted, but the function is definitively there.  He does not have to \nuse  an  AFO  device  as  much.  The  pain  level  right  now,  is  about  a  5/10.  \nOverall,  I  think  he  is  doing  well.  No  skin  breakdown  issues.  He  had  a \nheel ulcer there  for  a  while  and  that  has  healed  up.  He  has  got  a  lot  of \nscarring areas, and we make sure he does hygiene checks. \n \nMEDICATIONS:  He gets Percocet 10 mg tablets, dispense 90 per month, \nclonazepam  1 mg  tablets,  dispense 60 per month, and  lidocaine patches \n5%.  I will increase that to 60.  He puts them on that ankle inside of his hip \nand  does  get  good  relief  with  them.  He  does  have  a  lymphedema \nmachine  at  home  to  help  keep  the  lymphedema  in  the  right  lower \nextremity down.  I do recommend that he could use that three times a day \nversus twice a day.  He does one hour sessions with that, but it does keep \nthe posttraumatic lymphedema down.  So, we discussed that as well. \n \nREVIEW OF SYSTEMS:  There is no major change in his medical health \nsystems.      He   does   struggle   with   depression.      He   has   got   some \nposttraumatic  stress  disorder  from  the  injury  as  well.    He  did  apply  for \nSocial  Security  Disability,  which  he  was  definitely  a  legitimate  applicant \nand did get approved, which I think is definitely the right thing.  He had a \nlife-changing injury. \n \nPHYSICAL  EXAM:   He  is  alert,  oriented,  well  developed,  well  nourished, \ngentleman.  Height  6 feet 2 inches,  weight  260  pounds,  O2  saturation \n97%,  heart  rate  82,  respiratory  rate  14.  Cranial  nerves II through XII \ngrossly  intact.  Ambulating  today  without  an  assistive  device.  The  right \nfoot,  he  deals  with  some  chronic  lymphedema  there,  decreased  range  of \nmotion  of  the  ankle  on  extension  and  flexion.  But  he  does  have  better \ndorsiflexion  of  the  foot  since  the  tendon  transfer.  The  bone  alignment \nlooks  fairly  well.  He  has  got  significant  scarring  areas  over  the  foot.  He \nhas  got  a  slight  varus  deformity  with  ambulation.  No  skin  breakdown \nissues.  The  pain  in  the  left  hip  and  pelvic  area.  Incision  over  the \n\nVAN LENTE – H107721 \n27 \n \ndeltopectoral  groove  from  the  humerus  fracture  over  the  right  shoulder.  \nNo skin breakdown issues.  Peripheral pulses are palpable. \n \nDIAGNOS[E]S: \n1. Multi-orthopedic trauma \n2. Long-term opiate use \n3. Opiate use by way of oxycodone \n4. Footdrop, right side \n5. Chronic pelvic pain \n6. Left-sided pelvic fracture \n7. Chronic posttraumatic lymphedema, right lower extremity \n8. Crush injury, right foot \n \n Likewise, Dr. Baskin’s most recent report, dated March 12, 2025, bears quoting \nat length (with emphasis added): \nSUBJECTIVE:  Mr. Van Lente is back in for follow up.  He has had a right \nankle tendon surgery by Dr. Renard in October of 2023 to help him better \nstabilize the ankle and also to help him try to evert the ankle a bit better.  \nHe  was  rolling  his  ankle  over  laterally  due  to  weakness  in  his  ankle \neverters.  He  had  a  right  great  toenail  removal  at  the  same  time  and  the \nnail  has  grown  back.  He  did  not  go  back  to  work  after  his  surgery.  He \nstates that the employer said that they had him on a temporary job and the \njob  was  essentially  eliminated per  his  he [sic] and his wife’s description \ntoday. He said they had nothing for him to do and he is not able to go out \non  patrol.  He  has  had Functional Capacity Evaluation  with Functional \nTesting Centers   on   2/5/2024   with   Casey   Garretson, Occupational \nTherapist.  I  noted  that  he  was  referred  for  an  impairment rating.  The \ninjuries  included  right  open  proximal tibia fracture  with  comminuted  tibial \nshaft  fracture  with  residual  foot  drop  with  peroneal  nerve  palsy  from \nproximal neck fracture/displacement. \n \nInjury #1 was intermedullary fixation of right tibial fracture, sharp excision \ndebridement  of  skin  and  subcutaneous  tissues  of  the  right  posterior calf \nwound by Dr. Renard 9/19/2021. \n \nInjury #2 was  a  closed  crush  injury  with  several  metatarsal  and  tarsal \nfractures  on  the  right  foot.  Procedure  was  open  treatment  of  right 1st \nthrough 3rd  tarsometatarsal  joint  injuries  with  a  Lisfranc  arthrodesis \nprocedure  and  also  percutaneous  treatment  of  the  right 4th  and 5th \ntarsometatarsal  joint  fracture/dislocations.  Nonoperative  treatment  of  the \n\nVAN LENTE – H107721 \n28 \n \nright  lesser  metatarsal  neck  fractures 2nd, 3rd, 4th  and 5th  toes  with  Dr. \nRenard 9/23/2023. \n \nInjury #3 he  had  removal  of  deep  hardware from  the  right  tibia  for  the \npurpose of dynamization of the nonunion.  He had right fibular osteotomy, \nbone  marrow  aspiration  with  injection  of  the  right  tibia  nonunion,  partial \nexcision of the right hallux toenail for treatment of infected ingrown toenail \nby  Dr.  Renard  on  5/2/2022.  He  had  wide  posterior tendon  tibial  tendon \ntransfer  to  the  mid foot  with tendonesis  of  the  right peroneus  longus and \nbrevis tendon, transfer of the right peroneus longus to the dorsal midfoot, \nremoval of deep hardware of the right midfoot.  This was the most recent \nprocedure  done  on  10/2/2023  with  Dr. Renard.  The  other  injury  was  a \nclosed  pelvic  disruption.  He  had  percutaneous  fixation  of  posterior  pelvic \nfracture,  open  treatment  with  plate  and screw fixation of  left  proximal \nhumerus fracture 9/20/2021 with Dr. Renard. \n \nInjury #4 was  a  closed  left  commuted  proximal  humerus  fracture  and  he \nunderwent  reduction  internal  fixation  of  left  proximal  humerus  by  Dr. \nRenard.  He   was   noted   on   the Impairment Evaluation   with   Casey \nGarretson to have continued functional difficulty with walking and reaching \noverhead with his left upper extremity. \n \nAndy continues  to  complain  of  swelling  in  the  right  lower  extremity and \nfoot.  This  is  primarily  from  the  knee  down.  He  still  wears Lymphapress \ngarments.  He  states  he  is  using  the Lymphapress  garment  three \ntimes a day.  We discussed whether three times a day was absolutely \nan indication or not and I do not really see a huge advantage to using \nthe Lymphapress  three  times  a  day.  That  would  potentially  knock \nAndy  out  of  going  back  to  work  unless  he  was  able  to  use  the \nLymphapress on  the  job.  Again,  he  has  not  worked  since  his  most \nrecent  surgery.  His Impairment Rating  from  Casey  Garretson  was  2% \nupper  extremity impairment equal  to  a 1% whole  person  impairment  for \nthe  left  shoulder  injury,  15%  whole  person  impairment  for  his  right  lower \nleg injuries, and a 2% whole person impairment for his pelvic injury. \n \nMr.  Garretson  used  gait derangement  noted  in  his  report  that  Mr.  Van \nLente had a 15% whole person impairment writing due to his antalgic gait \nand  the  fact  that  he  has  to  wear  an  ankle  foot  orthosis.  He  noted  in  his \nreport  that  Mr.  Van  Lente  did  have  objective  physical  findings  that  are \nconsistent with his AFO use requirement.  He noted that Mr. Van Lente did \nhave  a  documented  peroneal nerve  injury  stemming  from  his  tib/fib \ndislocation  and  fracture,  but  he  noted  that  in  his  opinion,  this  was  not \n\nVAN LENTE – H107721 \n29 \n \nrateable  using  the  guides  in  an  objective manner  as  manual  muscle \ntesting is subjective. \n \nI  went  back  and  looked  at  the  EMG  and  nerve  conduction  studies  that  I \nordered and had done with Dr. Mike Chesser, Little Rock Neurologist, on \nMay  16,  2022.  Andy  did  not  have  any  recordable  latency  of  the  right \nperoneal  nerve  at  the  ankle,  fibular  head  or  popliteal fossa  and  no \nrecordable right tibial motor nerve at the ankle or popliteal fossa.  He had \nno  recordable  sural  nerve  potentials at  the  right  ankle.  He  had  3+ \ndenervation potential positive sharp waves in the right tibialis interior, 4+ in \nthe  right  peroneus  longus.  This  was  felt  to  be  confirming  of  a  peroneal \nnerve  palsy  and  a  posterior  tibial  nerve  palsy.  Dr.  Chesser’s impression \nwas severe combined right common peroneal and posterior tibial dramatic \nneuropathies.  There  was  no  residual  innervation  detected  in  the  right \nperoneus longus and less than 25% estimated residual innervation in the \ntibialis anterior.  There  was  approximately  25-50%  residual  innervation  in \nthe  gastrocnemius.  EMG  of  the  right  vastus lateralis  and  biceps  femoris \nabove the knee were normal.  This indicates that the injury was related to \nthe tib/fib fractures and not higher up than the sciatic nerve.  The findings \non Dr. Chesser‘s EMG Nerve Conduction Studies are objective.  Mr. Van \nLente may have gotten a little bit more return of the posterior tibial nerve \nwith  plantar  flexion  but  his  dorsiflexion  is  still  minimal.  He  had  to  have \ntendon  transfers  to  help  him  with eversion  due  to  no  significant  peroneal \nmuscle function. \n \nWe went over his findings on the Impairment Rating, and the fact that he \nhas  never  gone  back  to  work.  He  will  be  50  next  month.  He  is  a  fairly \nlarge  man,  tall  statured,  and  I  do  not  see  him  going  back  to  work  as  a \npolice  officer  on  patrol  with  the  nerve  injuries  that  he  sustained.  He  has \ncontinued  to  have  weakness  in  the dorsiflexion  of  the  right  ankle  and \nsome weakness in the plantar flexion and eversion of the right ankle.  He \nhas  sensory  deficits  in  the  peroneal  and  posterior  tibial  distribution \nincluding the medial and lateral planter branches by my exam today.  \nThis  is  consistent  with  the  recordings  done  by  Dr.  Chesser  on  my \nreferral.  He  does  have  objective findings  that  can  be  rated  using \nTable  68  impairments  from  nerve  deficits  on  page  89  of  the Fourth \nEdition Guides.  Based  on  his  common  peroneal  nerve  injury,  he \nwould   have   a   15%   whole   person   impairment   equal   to   42% \nimpairment  for  the  lower extremity  based on  peroneal  nerve  deficits \nfor  motor  loss.  He  would  have  an  additional  8%  whole  person \nimpairment equal to 5% lower extremity impairment for his persistent \nsensory  loss.  He  has  had  trouble  with  getting  blisters  on  his  foot \nand  has  had  persistent  edema  likely  related  to  the  nerve  injury  and \n\nVAN LENTE – H107721 \n30 \n \nresultant venous stasis disease.  He would also have 4% impairment \ndue to his tibial motor nerve in the form of 2% to the medial plantar \nbranch and 2% to the lateral plantar branch both the terminal nerves \nfor the tibial  motor  nerve  in  the  leg.  He  would  have  sensory  loss \nfrom both of those nerve[s] as well [as] 2% to the whole person, 5% \nto  the  lower  extremity,  total[ing] 4%  for  sensory  loss.  If  he  is  rated \non  objective  findings  and  the  results  of  his  EMG  nerve  conduction \nstudies by a Board Certified Neurologist Dr. Chesser, he would have \n17% whole person impairment based on his common peroneal nerve \ninjury  that  is  combined  with  8%  of  the  tibial  motor  nerve  including \nthe  medial  and  lateral  plantar  nerves,  which  are  the  terminal  nerves \nin the foot.  17% combined with 8% using the combined values chart \non  page  322  would yield  a  24%  impairment  to  the  whole  person \nbased   on   Mr.   Van   Lente‘s  right  lower  extremity  fractures  and \nresultant  nerve  injury.  Using  the  nerve  conduction  studies  and \nrating Mr.   Van Lente   on   those   as   opposed   to   using   a   gait \nderangement  abnormality,  which  is  a  stand  alon[e] rating  does \nprovide Mr. Van Lente with a 9% whole person impairment more than \nrating  on  the  gait derangement alone.  In  my  opinion,  this  is a  more \naccurate rating.  The gait derangement is again only used when there \nare no other means to objectively rate these injuries. \n \nMr. Valente and I discussed him returning to work as a police officer and I \nthink  that  is  unlikely  unless  he  has  some  sort  of  modified  duties  such  as \ncriminal  investigation  or  administrative-type  role.  I  do  not  believe  he  is \never  going  to  be  able  to  go  back  on  patrol.  He  is  still  requiring \nLymphapress for post traumatic venous stasis issues in the right leg.  This \ndiagnosis has not been confirmed with Doppler exam or objective findings \nbut  clearly he  has  had  swelling  as  his  injury has not  rated him on  that.  I \nthink  the  neurologic  rating  on  the  posterior  tibial  nerve  and  its  terminal \nbranches  as  well  as  the  common  peroneal  nerve  injury  are  accurate  and \nreliable.  The gait derangement rating is not needed or valid given the \nprevious nerve conduction studies by Dr. Chesser.  I did not see any \nother  changes  that  would  be  recommended  in  the  impairment rating  that \nwas  given  by Functional Testing Centers.  I  think  it  is  unlikely  that \nFunctional Testing Centers had the  EMG  nerve  conduction  studies  that \nwere ordered by me in May of 2022. \n \nWith  regards  to  the Lymphapress,  schedule  two  times  a  day  versus \nthree  times a  day,  I do  not  feel  it  is absolutely indicated  that he  use \nthe Lymphapress three times a day.  That might free him up to take a \njob   that   otherwise   would   not   be   available   to   him   just   for   the \nLymphapress application one more time daily. \n\nVAN LENTE – H107721 \n31 \n \n \n Discussion.  The Commission may determine its own impairment rating under the \nAMA  Guides,  rather  than  simply  assessing  the  validity  of  the  ratings  that  have  been \nassigned.  Avaya v. Bryant, 82 Ark. App. 273, 105 S.W.3d 811 (2003).  However, after \nclosely reviewing  the  evidentiary  record in  light  of  the  AMA  Guides,  I  am  unable  to \npinpoint  a  single  instance  where  Claimant’s  compensable  injuries  were  unrated  or \nunderrated.  The Commission is authorized to accept or reject a medical opinion and is \nauthorized  to  determine  its  medical  soundness  and  probative  value.   Poulan  Weed \nEater  v.  Marshall,  79  Ark.  App.  129,  84  S.W.3d  878  (2002); Green  Bay  Packing  v. \nBartlett,  67  Ark.  App.  332,  999  S.W.2d  692  (1999).    I  credit  the  opinion  of  Garretson \nregarding his rating of Claimant’s shoulder and hip/pelvic injuries; and I credit Dr. Baskin \nregarding his rating of Claimant’s right lower extremity injuries. \n In sum, Claimant has failed to prove by a preponderance of the evidence that he \nis  entitled  to  impairment  ratings  in  addition  to  and/or  higher  than  those  set  forth  in \nStipulation No. 3, supra. \nB. Permanent and Total Disability/Wage Loss Disability \n Introduction.    Claimant  has  contended  that  as  a  result  of  his compensable \ninjuries, he is permanently and totally disabled.  In the alternative, he has asserted that \nhe  is  entitled  to  wage  loss  disability  benefits  over  and  above  his impairment  ratings \ndiscussed above.  Respondents have argued otherwise. \n Standards.   As  the  parties  have  stipulated,  the  September  17,  2021,  accident \ncaused  Claimant  to  suffer  multiple  compensable  injuries.    Some  of these  injuries—\n\nVAN LENTE – H107721 \n32 \n \nnamely, the ones to his right lower extremity and foot—were scheduled.  See Ark. Code \nAnn.  §  11-9-521(a)(4),  (11) (Repl.  2012).    The  others—specifically,  those  involving  his \nleft  shoulder  and  his  hip/pelvis,  were unscheduled.   Cf. id.  §  11-9-521.    The  term \n“permanent  total  disability”  is  defined  in  the  statute  as  “inability,  because  of \ncompensable injury or occupational disease, to earn any meaningful wages in the same \nor other employment.”  Id. § 11-9-519(e)(1) (Repl. 2012). \n Claimant’s entitlement to wage loss disability benefits is controlled by Ark. Code \nAnn. § 11-9-522(b)(1) (Repl. 2012), which states: \nIn considering claims for permanent partial disability benefits in excess of \nthe  employee’s  percentage  of  permanent  physical  impairment,  the \nWorkers’ Compensation Commission may take into account, in addition to \nthe  percentage  of  permanent  physical  impairment,  such  factors  as  the \nemployee’s  age,  education,  work  experience,  and  other  matters \nreasonably expected to affect his or her future earning capacity. \n \nSee  Curry  v.  Franklin  Elec., 32 Ark. App. 168, 798 S.W.2d 130 (1990).  Such “other \nmatters” include motivation, post-injury income, credibility, demeanor, and a multitude of \nother  factors.   Id.; Glass  v.  Edens,  233  Ark.  786,  346  S.W.2d  685  (1961).    As  the \nArkansas  Court  of  Appeals  noted  in Hixon  v.  Baptist  Health,  2010  Ark.  App.  413,  375 \nS.W.3d 690, “there is no exact formula for determining wage loss . . . .”  Under § 11-9-\n522(b)(1),  when  a  claimant  has  been  assigned  an  impairment  rating  to  the  body  as  a \nwhole, the Commission possesses the authority to increase the rating, and it can find a \nclaimant  totally  and  permanently  disabled  based  upon  wage-loss  factors.   Cross  v. \nCrawford County Memorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). \n\nVAN LENTE – H107721 \n33 \n \n To  be  entitled  to  any wage-loss disability  in excess of  an  impairment  rating,  the \nclaimant must prove by a preponderance of the evidence that he sustained permanent \nphysical  impairment  as  a  result  of  a  compensable  injury.   Wal-Mart  Stores,  Inc.  v. \nConnell,  340  Ark.  475,  10  S.W.3d  727  (2000).    The  wage  loss  factor  is  the  extent  to \nwhich  a  compensable  injury  has  affected  the  claimant’s  ability  to  earn  a  livelihood.  \nEmerson  Elec.  v.  Gaston,  75  Ark.  App.  232,  58  S.W.3d  848  (2001).    In  considering \nfactors that may impact a claimant’s future earning capacity, the Commission considers \nhis motivation  to  return  to  work,  because  a  lack  of  interest  or  a  negative  attitude \nimpedes the assessment of his loss of earning capacity.  Id.  The Commission may use \nits  own  superior  knowledge  of  industrial  demands,  limitations,  and  requirements  in \nconjunction  with  the  evidence  to  determine  wage-loss  disability.   Oller  v.  Champion \nParts  Rebuilders,  5 Ark.  App.  307,  635 S.W.2d  276  (1982).    Finally,  Ark.  Code  Ann.  § \n11-9-102(4)(F)(ii) (Repl. 2012) provides: \n(a) Permanent  benefits  shall  be  awarded  only  upon  a  determination \nthat the compensable injury was the major cause of the disability or \nimpairment. \n \n(b) If  any  compensable  injury  combines  with  a  preexisting  disease  or \ncondition  or  the  natural  process  of  aging  to  cause  or  prolong \ndisability  or  a  need  for  treatment,  permanent  benefits  shall  be \npayable for the resultant condition only if the compensable injury is \nthe major cause of the permanent disability or need for treatment. \n \n“Major cause” is more than fifty percent (50%) of the cause, and has to be established \nby  a  preponderance of the  evidence.    Ark.  Code  Ann.  §  11-9-102(14)  (Repl.  2012).  \n“Disability” is the “incapacity because of compensable injury to earn, in the same or any \n\nVAN LENTE – H107721 \n34 \n \nother  employment,  the  wages  which  the  employee  was  receiving  at  the  time  of  the \ncompensable injury.”  Id. § 11-9-102(8). \n Evidence.  The testimony of Claimant was that prior to his going to work for the \nCity of Ward, he was employed for 11 years as a part-time police officer for the City of \nAustin.  Prior to this, he worked as an auxiliary policeman for another municipality.  He \nalso held a full-time and a part-time job as a paramedic for a number of years.  Claimant \nhas taken and completed courses to be a paramedic/EMT, as well as in the areas of law \nenforcement  and  respiratory  therapy.    He  is  certified  as  a  paramedic  as  well  as  a \nrespiratory therapist. \n Because  of  the  condition  of  his  right  ankle,  he  has  to  wear  a  brace.    It,  in  turn, \nhooks  into  a  special  shoe  that  he  must  wear  because  of  ever-present  swelling  in  his \nright foot and his difficulty in controlling the toes of that foot.  Claimant elevates his right \nlower extremity because failure to do so causes swelling and discoloration in that foot.  \nThe swelling presses on the joints and nerves in that extremity. \n In  dealing  with  the  swelling  of  his  right  leg  due  to  the  accident,  he  treats  with  a \nLympha  Press.    This  device  is  a  sleeve  that  goes  over  his  leg  and  alternates  creating \nand releasing pressure on that extremity for an hour.  He uses the press three times a \nday—once each in the morning, afternoon, and evening.  In an effort to help him obtain \na job by minimizing the time conflict, he has attempted to reduce his use of the device to \ntwice a day.  However, this has been unsuccessful; when he has tried this, his swelling \nand pain have increased.  He has daily pain in his right ankle and foot.  Despite use of \n\nVAN LENTE – H107721 \n35 \n \nthe special shoe and brace, his gait is unsteady and has been altered.  Climbing stairs \nis difficult, as is squatting and kneeling. \n Currently,  Claimant  also  uses  a  TENS  unit.    It  helps  him  to  flex  his  right  foot \nupward by aiding with muscle stimulation.  The purpose of this is to treat his foot drop. \n Claimant now  returns to  his  orthopedist,  Dr.  Renard,  once  a  year.   He  sees  Dr. \nRoman  every  three  months  for  pain  management.   His  medications  include  Zoloft, \nWellbutrin, Mirtazapine, Tizanidine, Percocet, Clonazepam and Lidocaine patches. \n According to Claimant, he returned to work at light duty in August or September \nof  2022.   His  hours  were  gradually  increased  by  Dr.  Baskin.   The  City  of  Ward \naccommodated his restrictions and allowed him to go home to use the Lympha Press.  \nIncluding the drive time to and from his home and changing clothing to use the device, \nthis treatment would take 105 minutes.  The light-duty work that Claimant was assigned \nconsisted  of  scanning  old  case  files—which  he  completed  in  approximately  one  year, \nand  then  conducting  background  checks  and  scanning  in  contact  cards,  which  took \nabout a month.  Thereafter, Claimant underwent corrective surgery on his right foot.  But \nonce he was ready to return to work after this procedure, the city had no more light duty \navailable to him.  Thus, he has not gone back to work. \n Asked  if  he  agrees  with  the  opinion  of  the  vocational  expert,  Dr.  Melissa  Jones \nWilkins, that he cannot do his past work, Claimant responded: \nYes . . . I’m not able to—I’m not able to run, I’m not able to do what they \ncall explosive movement as far as go from a run to a walk, to a dead stop, \nmove side to side.  I guess it’s called a juke.  I’m not able to do any of that.  \nLifting would be an issue because of—you know, a lot of lifting you do with \nyour legs. \n\nVAN LENTE – H107721 \n36 \n \n \n It is his belief that he would need accommodations at any place of employment.  \nHe  would  need  to  be  able  to  elevate  his  right  foot  and  use  the Lympha Press.    His \nemployer would have to allow him to use Percocet—a narcotic pain medication that he \ntakes three times a day. \n Claimant  related  that he  tries  to  perform  at  least  one  task  per  day  around  the \nhouse—be that dusting, loading the dishwasher, or performing laundry.  Because of the \ncondition  of  his  right  leg,  he  can  only  be  on  his  feet  doing  chores  for  10  minutes  at  a \ntime  before  the  pain  necessitates  that  he  sit  down.    After  30  to  40  minutes  of \nrecuperation, he is ready to resume activities.  As a result, the length of time it takes him \nto perform a given task has increased significantly. \n On cross-examination, Claimant acknowledged that he was already on Percocet \nfor  chronic  pain  and  on  anti-depression  medication,  including  Zoloft, prior  to  the \naccident.   He  was  also  being  medicated  for post-traumatic stress  disorder and \nunderwent  a  microdiscectomy before  sustaining  his  compensable  injuries.  Claimant \nuses  the  Lympha Press  three  times per day:    once  in  the  morning,  once mid-day,  and \nonce  in  the  evening.    He  explained  that he  is  able  to  tolerate  the  12-hour  stretch \nbetween  his  evening treatment and his  first  one  the  next  day because  he elevates  his \nleg at night.  He was prescribed a Lympha Press because his physicians decided that it \nwas  more  efficient  for  him  to  undergo  treatment  of  his  lymphedema  at  home.   The \nLympha Press motor is 12 by 14 inches.  The device is portable. \n\nVAN LENTE – H107721 \n37 \n \n Claimant agreed that before his most recent surgery interrupted it, he was being \ntrained by  the  City  of  Ward  to  be  a  dispatcher.    While  he  described  the  process  as \n“difficult,”  he  agreed  that  he  was  able  to  perform  as  a  Level  1  dispatcher.    Had  he \nfinished  his  training,  however,  he  would  not  have  been  able  to  do  this  job  for  the  city \nbecause dispatching services were going to be reassigned to a statewide call center. \n At  present,  Claimant  is  still  employed  with  the  City  of  Ward.    The  police  chief \ninformed  him  that  while  he  is  not  working, he  is  being  “kept on  the  books”  until  the \ncurrent litigation is at an end.  Claimant agreed that Respondents do not have a job that \nfits  his  accommodations  because  the  city  is  limited  by  its  budget  and  the  number  of \nemployees  it  can  have.    The  testimony  of  Claimant  is  that  he  has  been  approved  to \nreceive Social Security Disability benefits.  He has informed the city of that, and of his \nintention to continue on disability and not come back to work. \n However, Claimant acknowledged that he has “never passed up an opportunity” \nto  attend  school.    While  he  is  not  currently  certified  to  be  a  respiratory  therapist,  this \ncould be rectified with additional schooling.  But he expressed doubts about his ability to \nbe in this line of work because it would require a lot of walking.  Apart from the walking \nissue,  which  he  conceded  that  an  employer  could  conceivably  accommodate  with \nalternate transportation, Claimant was asked if he could physically perform the job of a \nrespiratory therapist in a patient’s room.  He responded: \nI’d say most of it.  Some of it would require me standing for a long period \nof  time,  like  if  the  patient’s  been  ventilated  or  if  I’m  doing  a—an \nassessment  on  them.    Some  patients  need  a  little  bit  more  time  than \nothers.  Some it’s educational, so there would be a lot of standing and a \nlot of walking. \n\nVAN LENTE – H107721 \n38 \n \n \nLater in his cross-examination, the following exchange occurred: \nQ. But   you   would   agree   with   me   that   if   the   walking   were \naccommodated, you can do certain jobs, right? \n \nA. Correct. \n \n He  confirmed  that  when  Dr.  Baskin  first  released  him  to  return  to  work,  he  was \nrestricted to working four hours a day.  But this was increased to the point that he was \nworking  eight  hours  a  day,  and  being  accommodated  with  his  need  to  travel  home \nduring  the middle of  the  day to  have a  Lympha  Press treatment.  While  the ankle  foot \northosis device  that  he  wears  helps  some  with  this,  he  is  still  limited  somewhat  in  his \nability to walk. \n Claimant  does  not  think  that  he  will  have  to  undergo  any  additional  surgical \nprocedures; nor does he think that he will need any more MRIs, despite the fact that his \nMSA  report  in  evidence  envisions  both  of  these  possibilities.   While  he  still  sees  Dr. \nRoman every three months, he has not returned to Dr. Baskin since March 2025. \n Claimant performs household chores “[i]n small intervals.”  These tasks include \nlaundry,  vacuuming,  and  carrying  in  groceries.   He  conceded  that while  he has  no \nproblems  sitting  for  extended  periods  of  time,  he  has  not  applied  for  any  jobs.  His \nexplanation was, “I haven’t really known of anything that’s come open.”  According to \nClaimant, he was not provided a copy of his vocational evaluation.  He was unaware of \nthe  jobs  that  the  evaluator  identified  in  the  report  as  ones  that  he  potentially  would  be \nqualified  to  have.    Shown  that  there  were  jobs  on  the  report  that  paid  from  $16.00  to \n$20.00 per hour, Claimant confirmed that that range included what he had been making \n\nVAN LENTE – H107721 \n39 \n \nfor the City of Ward.  He agreed that with respect to those jobs that required that he talk \non  the  telephone and  review  reports,  he  is  capable  of  doing  these  things.   While \nClaimant testified that he would love to teach paramedics, he added that such positions \nare very rare. \n It  was  Claimant's  testimony  that  he  has  not  seen  the  report  of  his  functional \ncapacity evaluation.  He was not aware that he demonstrated the ability to perform work \nin the Medium category.  Claimant is still being paid permanent partial disability benefits \nin accordance with the ratings he was assigned out of that evaluation. \n Under  redirect-examination,  Claimant  stated  that  while  he  took  medication  for \nchronic pain prior to suffering his compensable injuries, the dosages have increased as \na  result.    Now,  they  cause  him  to  have  dizziness  and  difficulty  concentrating.   With \nrespect to the potential jobs for him listed in Wilkins’s report, Claimant insisted that he \ncould not possibly take any of them without two accommodations:  that he could elevate \nhis right leg and be able to use the Lympha Press in the middle of the day.  He added \nthat, regardless, he had not been offered any of those jobs.  However, Claimant agreed \nwith the vocational evaluator’s opinion that his need for use of the Lympha Press in the \nmiddle of the day is a “complicating factor” and a “barrier” to his resuming work outside \nthe  home.    Claimant  offered  that  his  use  of  narcotic  pain  medication  would  also  be  a \n“complicating factor.” \n The following exchange took place during the recross-examination of Claimant: \nQ. You have multiple certifications proving your ability to learn new job \ntasks, requirements, correct? \n \n\nVAN LENTE – H107721 \n40 \n \nA. Correct.  I rarely passed on an opportunity. \n \n In  addition  to  the  medical  records  discussed  above,  the  other  documents  in \nevidence  that  bear  on  this  issue  include  the  functional  capacity  evaluation  of  Claimant \nthat  was  conducted  on  February  5,  2024.    As  a  result,  Claimant gave  a  reliable  effort, \nwith 51/51 consistency measures within expected limits, and demonstrated the ability to \nperform work in the Medium category. \n Melissa Jones Wilkins, Ph.D., conducted a vocational evaluation of Claimant.  In \nher  report  thereon,  dated  May  30,  2024,  she  wrote  the  following  summary  of  her \nfindings: \nMr. Van Lente’s previous positions have consisted of MEDIUM and VERY \nHEAVY labor.  At  this  time,  Mr.  Van  Lente  has  demonstrated  capacities \nafter  his  2021  injury.  As  a  result,  he  is  limited  to  primarily  medium  level \nwork  with  limited  use  of  his  left  shoulder  and  right  ankle.  With  these \nrestrictions,  he  will  be  unable  to  return  to  previously  held  occupations.  \nBased  only  on  the  work-related  capacities,  as  measured  solely  by  the \nFCE, if he is able to perform work outside of his home, at the sedentary to \nlight  level  his  annual  earnings  capacity  is  estimated  in  the  range  of \n$16.37-$20.70 (median  $18.57) per  hour  per  OES  data  and  $13.14-\n$23.00 (median $16.90) per hour per labor market research. \n \nIn vocational  rehabilitation,  counselors  need  to  rehabilitate  the  “whole \nperson,” which  involves  looking  at  the  physical,  psychological,  and  social \neffects of the disability (Browden et al., 2002; Hartley & Tarvydas, 2022).  \nOne important need for Mr. Van Lente is the ability to return to his home in \nthe middle  of  the  day to  do  his  lymphedema  treatment.  This  need  is  not \nfactored in if one relies solely on the FCE for limitations for Mr. Van Lente.  \nThis is a complicating factor in barrier to Mr. Van Lente working outside of \nthe  home.  In  this  vocational  scenario,  Mr. Van  Lente would  need  the \naccommodation  of  leaving  work  in  the  middle  of  the  day  to  complete  his \nlymphedema  treatment  in  a  timeframe  that  would  go  beyond  the  typical \nlunch  hour.  This  treatment,  according  to  Eric  Jones,  RN,  CCM,  was \nordered by Dr. Baskin on October 13, 2022.  Remote work, or work from \nhome,  maybe  his  best  option  in  this  scenario.    Through a  labor  market \nsurvey, jobs were located that paid $16-$27.27 per hour (median $23 per \n\nVAN LENTE – H107721 \n41 \n \nhour).  If  Mr. Van  Lente is  able  to  work  full-time,  his  earnings  capacity \nwould  be  $47,840  annually  and  if  he  is  able  to  work  part  time  due  to \nlymphedema treatment, his earnings capacity is estimated at $23,920 per \nyear. \n \n Discussion.   The evidence  reflects  that  Claimant is a  high  school graduate.    He \nworked for a number of years as a police officer.  In addition, he has been employed as \na  paramedic.    Claimant  has  taken  and  completed  courses  to  be  a  paramedic/EMT,  as \nwell  as  in  the  areas  of  law  enforcement  and  respiratory  therapy.    He  has  held \ncertifications to be a paramedic and a respiratory therapist. \n On September 17, 2021, he was struck by a vehicle traveling at highway speed.  \nThis  resulted  in  his  being  airlifted  to  UAMS,  where  he  underwent  surgeries  on  his  left \nshoulder, pelvis, and right lower extremity as detailed above.  Thereafter, he underwent \nphysical therapy. \n With  respect  to  his  aforementioned  unscheduled  injuries,  Claimant  reached  the \nend  of  his  healing  period  and  was  assigned  permanent  impairment  ratings  on  this  by \nGarretson:  one percent (1%) to the body as a whole for his left shoulder injury, and two \npercent (2%) to the body as a whole regarding his pelvic injury.  Following his shoulder \nsurgery,  Claimant  was  treated  with  injections  to  address  his  pain  on  more  than  one \noccasion. \n To put it mildly, Claimant’s right lower extremity condition has been addressed \nless  successfully.    The  specifics  of  that  treatment,  which  has  included  three  surgeries, \nhave been explained.   Despite  multiple operations  conducted by  Dr.  Renard,  Claimant \nhas been left with a right leg beset by, inter alia, nerve damage and lymphedema.  The \n\nVAN LENTE – H107721 \n42 \n \nresulting  pain   is   addressed   with   opiates, while   the   lymphedema   is   treated   with \napplications  of  the  Lympha  Press  three  times  a  day.  He  wears  an  orthotic  device.  \nDespite  this,  he  is  still  able  to  engage  in  household  activities  such  as  laundry  and \nvacuuming—albeit it at a slower pace. \n Claimant’s medical history reveals that he was already using Percocet (Roman in \nhis notes refers to him as a “legacy opiate patient”) for chronic pain before the accident \nin question.  Moreover, he already had anxiety, depression, and PTSD.  Despite these \nthings, until he was struck by the vehicle, he had been able to function in the workforce, \nincluding as a law enforcement officer and as an EMT. \n Eventually,  while  Claimant  was  still  undergoing  treatment  of  his  compensable \ninjuries, he was released to light duty.  His restrictions were gradually lessened.  While \nstill  working  for  the  City  of  Ward,  he  was  able  to  function  successfully  in  a  desk  job, \ndoing  such  tasks  as  digitizing  records.    His  success  in  this  endeavor  resulted  in  his \nrunning  out  of  tasks  that  comported  with his restrictions.    He  was also  training  to  be  a \ndispatcher before a change in programs kept this from proceeding further. \n An issue cited by both Claimant in his testimony and Dr. Wilkins in her vocational \nevaluation as  a  barrier  to  his  obtaining  full-time  employment  is  his  use of  the  Lympha \nPress  during  the  middle  of  the  day.    While  Claimant  was  still  working  for  the  City  of \nWard,  he  would  travel  home  at  mid-day  to  use  the  device.    In  so  doing,  he  would \nchange his clothing and use the device before heading back to the office.  I am aware \nthat Claimant testified that he needs this third treatment to help with pain and swelling.  \nDr. Roman echoed this, writing:  “I do  recommend  that  he  could use  that  [the  Lympha \n\nVAN LENTE – H107721 \n43 \n \nPress] three times a day versus twice a day.”  However, Dr. Baskin was of a different \nopinion: \nWith regards to the Lymphapress, schedule two times a day versus three \ntimes  a  day,  I  do  not  feel  it  is  absolutely  indicated  that  he  use  the \nLymphapress three times a day.  That might free him up to take a job that \notherwise   would   not   be   available   to   him   just   for   the   Lymphapress \napplication one more time daily. \n \nAfter due consideration, I credit Dr. Baskin’s opinion on this.  I also note that the device \nin question is portable; although a large amount of the time spent on his use of it during \nthe middle of the day is travel to and from his home, the evidence does not support the \nfinding that he must undergo this treatment at home as opposed to suitable site in the \nworkplace. \n With respect to Claimant’s vocational evaluation, I note that he testified that he \nwas never informed of the substance of Wilkins’s report.  She noted that his “previous \npositions have consisted of MEDIUM and VERY HEAVY labor.”  His functional capacity \nevaluation, as detailed above, showed that he demonstrated the ability to perform work \nin  the  Medium  category.   Dr. Wilkins  agreed  with  Baskin  that  Claimant  could  never \nreturn  to  being  an  officer  on  patrol.    But  she  did  identify  work  that  he  could  perform \nwithin the results of his FCE, and concluded:  “If [Claimant] is able to work full-time, his \nearnings capacity would be $47,840 annually and if he is able to work part time due to \nlymphedema treatment, his earnings capacity is estimated at $23,920 per year.” \n As  Claimant  readily  conceded  in  his  testimony,  he  has  “never  passed on an \nopportunity” to further his education.  While he felt that he could obtain the training to be \ngainfully employed as a respiratory therapist, his difficulties walking and standing would \n\nVAN LENTE – H107721 \n44 \n \npose formidable obstacles to his being able to navigate a healthcare center and attend \nto patients properly.  Despite this, he acknowledged that any walking requirements were \naccommodated, he could do certain jobs. \n Claimant has been approved to receive Social Security Disability benefits.  After \nconsideration  of  the  evidence, particularly  his  testimony, I do  not find  that  he  is \nmotivated to return to the workforce.  The evidence at bar compels a finding that he has \nnot proven that he is permanently and totally disabled. \n The  question  remains,  however,  whether  he  is  entitled  to  wage  loss  disability \nbenefits.    In  analyzing  this  sub-issue,  I  cannot  take  into  consideration  any  scheduled \ninjuries.  For that reason, I must confine my analysis to his unscheduled injuries.  Taking \nthem   into   account   in   light   of   the   above   legal   standards   and   evidence, the \npreponderance  of  the  evidence  establishes  that  he  has  sustained  wage  loss  in  the \namount  of  fifteen  percent  (15%).   Moreover, his  compensable unscheduled shoulder \nand hip/pelvic injuries are the major cause of this disability. \nC. Average Weekly Wage \n In  determining  the  average  weekly  wage  of  a  claimant,  Ark.  Code  Ann.  §  11-9-\n518 (Repl. 2012) gives the following guidance: \n(a)(1) Compensation  shall  be  computed  on  the  average  weekly  wage \nearned  by  the  employee  under  the  contract  of  hire  in  force  at  the \ntime  of  accident  and  in  no  case  shall  be  computed  on  less  than  a \nfull-time workweek in the employment. \n \n(2) Where  the  injured  employee  was  working  on  a  piece  basis,  the \naverage weekly wage shall be determined by dividing the earnings \nof the employee by the number of hours required to earn the wages \nduring  the  period  not  to  exceed  fifty-two  (52)  weeks  preceding  the \n\nVAN LENTE – H107721 \n45 \n \nweek in which the accident occurred and by multiplying this hourly \nwage  by  the  number  of  hours  in  a  full-time  workweek  in  the \nemployment. \n \n(b) Overtime  earnings  are  to  be  added  to  the  regular  weekly  wages \nand  shall  be  computed  by  dividing  the  overtime  earnings  by  the \nnumber of weeks worked by the employee in the same employment \nunder the contract of hire in force at the time of the accident, not to \nexceed a period of fifty-two (52) weeks preceding the accident. \n \n(c) If, because of exceptional circumstances, the average weekly wage \ncannot  be  fairly  and  justly  determined  by  the  above  formulas,  the \ncommission may determine the average weekly wage by a method \nthat is just and fair to all parties concerned. \n \nThe term “wages” is defined in Ark. Code Ann. § 11-9-102(19) (Repl. 2012) in pertinent \npart as follows: \n“Wages”  means  the  money  rate  at  which  the  services  rendered  is \nrecompensed  under  the  contract  of  hiring in  force  at  the  time  of  the \naccident  including  the  reasonable  value  of  board,  rent,  housing,  lodging, \nor similar advantage received from the employer . . . . \n \n Evidence.  Claimant testified that at the time he was injured, his job title with the \nCity  of  Ward  was  Senior  Patrolman.    He  was  a  shift  supervisor  with  patrol  duties.   He \nworked  12-hour  shifts  there.    This  consisted  of  three  12-hour  shifts  and  four  12-hour \nshifts  every  two  weeks,  or  84  hours  during  that  period.    His  testimony  was  that  he \nworked overtime: \nThere would be times I’d have to work late.  I’d usually turn my radio on \nabout an hour before I’d go in while I was getting ready.  That dictated \nhow quick I needed to get ready.  Depending on what was going on, I may \nhave to go in early. \n \nOn  April  21,  2021,  he  received  a  pay  raise;  his  hourly  rate  was  raised  from  $14.99  to \n$17.00.  Overtime was paid at 1.5 times the hourly rate. \n\nVAN LENTE – H107721 \n46 \n \n However, on cross-examination, Claimant acknowledged that the payroll records \nin evidence reflect that in the year prior to his injury, his hourly rate actually was $14.38 \nuntil it became $14.99 in January 2021.  The following exchange took place: \nQ. And because you worked less than 40 [hours] one week and more \nthan  40  the  next  week,  that  was  considered  regular  time  if  you \nworked 36/48, correct? \n \nA. I’m  under  the  impression  that  we—the  eight  hours  was  built-in \novertime since it was on a different week. \n \nWhen  shown  his  payroll  records,  however,  he  agreed  that  his  compensation  was  as \noutlined  in  the  above question;  because he was  paid every two  weeks,  with one  week \nunder 40 hours and the second above 40, he was not paid overtime for an excess the \nsecond  week  provided  that  the  total  for  the  two-week  period  did  not  exceed  80  hours.  \nHe conceded that he never took issue with the amount that the was paid. \n Under further examination by his attorney, Claimant acknowledged that while he \nworked overtime, he was not paid accordingly. \n The records in evidence show that in the year preceding the injury, in addition to \nhis straight pay and overtime, he was paid $250.00 in “Longevity Pay” and $250.00 as a \n“Year-End Bonus.” \n Discussion.  Claimant’s Form AR-W  that  is  in  evidence  is  not  broken  down  into \n52  weeks.   Instead,  as  discussed  at  the hearing,  it  is  broken down  into  the  26 2-week \npay periods that comprised the year preceding his injury.  Even a casual glance at the \ndata presented on the form shows two anomalies.  First, in contrast to his testimony on \ncross-examination, his hourly rate was not as stable as presented.  Per the Form AR-W, \n\nVAN LENTE – H107721 \n47 \n \nhis  rate for  the  first  seven  pay  periods was  $14.38  before  it  dropped to  $13.88  for  the \neighth  and  then  rose  to  $15.17  for the  ninth.    Thereafter,  it  held at  $14.99  for  the  next \nthree  pay  periods  before  returning  to  the  $15.17  figure  for—again—just  one  period.  \nThereafter,  it  held  steady  at  $17.00  per  hour  for  nine  pay  periods  before  increasing  to \n$18.59 for the final one.  Second—and more troubling—is the fact that the payment of \novertime  to  him  was  not  at  all  consistent.    Claimant worked  in  excess  of  80  hours  in \neach of the 26 2-week periods in question.  Per Claimant’s testimony elicited on cross-\nexamination, he should have been paid overtime during each of these periods because \nhe would have worked in excess of 40 hours a week.  But per the Form AR-W, in only \nfive periods was he paid overtime.  The most amazing instance comes at Line 19 of the \nform.  This line reflects that during the two-week period in question, he worked 108.75 \nhours—and yet was paid no overtime.  Based on the evidence adduced at the hearing, I \ncredit the Form AR-W as correctly reflecting what Claimant was paid during the period \nat issue. \n That said, the issue of whether Respondent City of Ward may have broken state \nand/or federal law by not paying Claimant overtime when it perhaps should have is not \nbefore  the  Commission.    The  instant  analysis  is  undertaken strictly to  determine  what \nClaimant  was  paid  during  the  year  before  he  was  hurt—not what  he  perhaps  should \nhave been paid.  Only the former question is relevant in determining the amount of his \naverage weekly wage under the Arkansas Workers' Compensation Act. \n\nVAN LENTE – H107721 \n48 \n \n As for Claimant’s two bonuses, they have been held to be fringe benefits that are \nnot to be included in the average weekly wage calculation.  See Taylor v. Lubritech, 75 \nArk. App. 68, 54 S.W.3d 132 (2001). \n Employing the analysis set out in § 11-9-518 (see Lankford v. Crossland Constr. \nCo.,  2011  Ark.  App.  416,  2011  Ark.  App.  LEXIS 451) shows  that  during  the  one-year \nperiod  in  question,  Claimant  earned  regular  pay  totaling  $35,729.84.    This  amount, \ndivided  by  52,  equals  $687.11.    This  amount in  turn—when  added  to  the  amount  of \novertime  he  earned  over  the  same  period,  $647.90,  divided  by  52  to  equal  $12.46—\nresults  in a  sum  of  $35,729.84.    The evidence preponderates  that  this  is  Claimant’s \naverage weekly wage, yielding compensation rates of $466.00/$350.00. \n The  payout  history  that  is  in  evidence  reflects  that  Respondents  have  been \npaying  Claimant  indemnity  benefits  at  the  rates  set  out  above.    For  that  reason, \nClaimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he  has  been \nunderpaid benefits of this type. \nD. Controversion \n Introduction.    Claimant  has  asserted  that  he  is  entitled  to  a  controverted \nattorney’s fee in this matter. \n Standard.    One  of  the  purposes  of  the  attorney's  fee  statute  is  to  put  the \neconomic  burden  of  litigation  on  the  party  who  makes  litigation  necessary.   Brass  v. \nWeller,  23  Ark.  App.  193,  745  S.W.2d  647  (1998).    In  this  case,  the  fee  would  be \ntwenty-five percent  (25%)  of  any  indemnity benefits  awarded  herein,  one-half  of  which \nwould be paid by Claimant and one-half to be paid by Respondents in accordance with \n\nVAN LENTE – H107721 \n49 \n \nSee Ark. Code Ann. § 11-9-715 (Repl. 2012).  See Death & Permanent Total Disability \nTrust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents have \ncontroverted Claimant’s entitlement to the additional indemnity benefits awarded herein.  \nThus,  the  evidence  preponderates  that  his counsel,  the  Hon. Andy  L.  Caldwell,  is \nentitled to the fee as set out above. \nCONCLUSION AND AWARD \n Respondents are directed to furnish/pay benefits in accordance with the findings \nof fact and conclusions of law set forth above.  All accrued sums shall be paid in a lump \nsum  without  discount,  and  this  award  shall  earn  interest  at  the  legal  rate  until  paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a twenty-five percent  (25%)  attorney’s  fee \nawarded herein, one-half of which is to be paid by Claimant and one-half to be paid by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":97794,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H107721 ANDREW VAN LENTE, EMPLOYEE CLAIMANT CITY OF WARD, SELF-INSURED EMPLOYER RESPONDENT ARK. MUNICIPAL LEAGUE, THIRD-PARTY ADM’R RESPONDENT OPINION FILED NOVEMBER 12, 2025 Hearing before Administrative Law Judge O. Milton Fine II on August 14, 2025, in Lit...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["neck","shoulder","back","ankle","hip","fracture","knee","cervical"],"fetchedAt":"2026-05-19T22:34:27.147Z"},{"id":"alj-H303065-2025-11-10","awccNumber":"H303065","decisionDate":"2025-11-10","decisionYear":2025,"opinionType":"alj","claimantName":"Misty Coleman","employerName":"Centers For Youth & Family Services","title":"COLEMAN VS. CENTERS FOR YOUTH & FAMILY SERVICES AWCC# H303065 November 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/COLEMAN_MISTY_H303065_20251110.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COLEMAN_MISTY_H303065_20251110.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \nCLAIM NO.: H303065 \nMISTY COLEMAN, ENRLOYEE       CLAIMANT \nCENTERS FOR YOUTH & FAMILY SERVICES, \nENTLOYER RESPONDENT \nATA WORKERS' COMPENSATION SI TRUST, \nRISK MANAGEMENT RESOURCES, INC., \nCARRIER/TPA RESPONDENT \nOPINION FILED NOVEMBER 10, 2025 \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \nClaimant represented by the Honorable Shelia F. Campbell, Attorney at Law, North Little Rock, \nArkansas. \nRespondents represented by the Honorable Jarrod S. Parrish, Attorney at Law, Little Rock, Arkansas. \nSTATEMENT OF THE CASE \nOn August 13, 2025, the above-captioned claim came on for a hearing in Little Rock, \nArkansas. Previously, a pre-hearing telephone conference was held in this matter on April 30, 2025. \nA Pre-hearing Order was entered that same day pursuant to the telephone conference. Said order \nwas admitted into evidence along with the parties' pre-hearing information filings without objection \nas Commission's Exhibit 1. \nSTIPULATIONS \nDuring the pre-hearing telephone conference, and/or at the hearing, the parties agreed to the \nfollowing stipulations: \n1. The Arkansas Workers' Compensation Commission has jurisdiction of the within \n\nColeman – H303065 \n2 \nclaim. \n2. The employee-employer-insurance carrier relationship existed among the parties at \nall relevant times, including on April 30, 2023, when the claimant sustained an \nadmittedly compensable injury to her right knee. \n3. The claimant's average weekly wage (AWW) of $607.00 is sufficient to entitle her \nto weekly compensation rates of $405.00 for temporary total disability (TTD) and \n$304.00 for permanent partial disability (PPD) benefits. \n4. The respondents have controverted the claimant's entitlement to additional \nbenefits, in the form of the other alleged injuries as outlined below and associated \nbenefits for these conditions as outlined below. \n5. All issues not litigated herein are reserved under the Arkansas Workers' \nCompensation Act. \nISSUES \nThe parties agreed to litigate the following issues: \n1. Whether the claimant sustained compensable work-related injuries to her hips, back, right \n shoulder, and left knee \nl \non April 30, 2023. \n2.  Whether the claimant is entitled to the medical treatment of record and future medical \n  treatment  for  her  alleged  injuries  to  her  hips,  back,  right  shoulder,  and  her  admittedly \n compensable right knee injury. The claimant also contends she is entitled to the medical \n treatment provided to her by Surgical Associates of Arkansas. \n \n \n1 \nAt the beginning of the hearing, the claimant's attorney amended the issue to pertaining to the claimant's \nalleged injuries, to thereby state that the claimant is no longer asserting an injury to her left knee. \n\nColeman – H303065 \n3 \n \n3. Whether the claimant is entitled to temporary total disability compensation from \nMay 1, 2023, to a date yet to be determined. \n4. Whether the claimant is entitled to a controverted attorney's fee. \nContentions \nThe claimant's and respondents' contentions are set out in their response to the Pre-hearing \nQuestionnaire. Said contentions are as follows: \nClaimant: \nClaimant contends that she sustained compensable injuries to her hips, back, right shoulder, \nleft knee, and right knee, in the form of a horizontal tear in the meniscus of her right knee. (At the \ntime of the telephone conference, the claimant's attorney stated that she was not alleging an injury \nto the neck. At the hearing, she removed the alleged left knee condition as an issue). \nClaimant contends that she is entitlement to temporary total disability from April 30, 2023, \nto a date to be determined. The claimant contends she is entitled to medical mileage, medical \nexpenses, and attorney’s fees. \nRespondents: \nRespondents contend that all appropriate benefits have been paid with regard to this matter. \nThe claimant has been released to full duty by Concentra and Dr. Seale. No additional medical \ntreatment has been recommended for the claimant's compensable knee injury. It is respondents' \nposition that additional medical treatment, if any, is not reasonable and necessary. Respondents also \ncontend that the medical documentation does not support an off-work status associated with the \nclaimant's compensable knee injury. \n\nColeman – H303065 \n4 \n As previously indicated, respondents have accepted a compensable right knee injury and \nhave  paid  associated  benefits  regarding  the  same.  Respondents  deny  claimant  suffered \ncompensable injuries to her hips, back, neck, and right shoulder and state that any treatment \nassociated  with  those  body  parts  is  related  to  preexisting  or  unrelated  conditions  for  which \nrespondents are not liable. Respondents contend the medical documentation does not support work \nrelated injuries to these other body parts nor does it support entitlement to further indemnity \nbenefits associated with claimant's compensable knee injury or the other claimed injuries in the \nevent compensability is found. Respondents contend all appropriate medical and related expenses \nhave been paid associated with authorized medical treatment related to claimant's compensable \nright knee injury. \nThe respondents forwarded a letter to my office on May 20, 2025. This letter reads, in \nrelevant  part,  as  follows:  \"I  enclose  with  correspondence  records  from  Baptist  Health  NLR \ndocumenting an incident claimant was involved in on or around February 4, 2025. Respondents \nassert that this incident constitutes an \"independent intervening cause.\" \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nAfter reviewing the record as a whole, including the medical reports, the documentary \nevidence, and other matters properly before the Commission, and after having had an opportunity \nto listen to the testimony of the witness and observe her demeanor, I hereby make the following \nfindings of fact and conclusions of law in accordance with Ark. Code Ann. {11-9-704 (Repl. \n2012): \n1. The Arkansas Workers' Compensation Commission has jurisdiction over this claim. \n2. The proposed stipulations set forth above are reasonable and hereby accepted. \n\nColeman – H303065 \n5 \n3. The claimant failed to prove by a preponderance of the evidence that she sustained \ncompensable injuries to her hips, and right shoulder on April 30, 2023. There are no \n objective medical findings establishing an injury either to the claimant's hips and right \nshoulder. All other issues relating to temporary total disability compensation, medical \ntreatment, and attorney fees have been rendered moot. \n4. The claimant sustained a temporary aggravation/aggravation of her pre-existing back \nthat resolved no later than May 18, 2023. The respondents have paid all appropriate \nbenefits for this minor injury. \n5. The claimant failed to prove her entitlement to additional medical treatment for her \ncompensable right knee injury of April 30, 2023, including the medical services that \nshe received from Surgical Associates of Arkansas. \n  6. All issues not litigated herein or addressed in this Opinion are reserved under the Act. \nSummary of Evidence \n   The claimant was the only witness to offer testimony during the hearing. \n The record consists of the hearing transcript of August 13, 2025, and the exhibits held \ntherein.  In  addition  to  the  Pre-hearing  Order discussed  above,  the  exhibits  admitted  into \nevidence in this case were Claimant's Exhibit 1, which is a Medical Exhibit consisting of 69 \npages; Respondents' Exhibit 1 encompassing 242 pages of Medical Records; Respondents' \nExhibit 2 is a Non-Medical Exhibit comprising of 122 pages; and Respondents' Exhibit No. 3 \nincludes seven, which is a Medical Exhibit Abstract. \nTestimony \n   The claimant testified that she was employed by Centers for Youth and Family Services \non April 30, 2023. She testified that she was supervisor for the night staff on the weekends. According \n\nColeman – H303065 \n6 \nto the claimant, she assisted with helping to address the needs of children with physical disabilities \nand behavioral difficulties. According to the claimant, she worked alongside of the nurses in dealing \nwith sex-trafficked children, made staff schedules, and assisted with other \"houses\" that the Centers \nfor Youth and Family Services was responsible for during the weekends. The claimant testified that \nshe coordinated telephone calls to the directors, helped with transportation for the children, and \nsupervised them during fire drills. \nShe confirmed that she contends on April 30, 2023, she was involved in a work-related \naccident in the course and scope of her employment with the respondent-employer. The claimant \ntestified that she was helping calming down one of the children. She testified that upon entering the \ndorm to help with the child, she noticed that the floor had bananas and Jello on it and was very sticky. \nAccording to the claimant, she asked staff to clear everything from the floor. The claimant essentially \ntestified that she went to confer with the nurse to make sure all the paperwork was completed in a \ntimely fashion. Per the claimant, as she walked across the floor, she fell to the floor because it was \nslippery. She maintained that when she fell, she fell in \"splits.\" She testified that it happened so fast, \nbut she recalls that she hit her head, knee, and shoulder when she went back in ''a splits.\" According \nto the claimant, she tried to get up, but she fell again. The claimant testified that one of the male staff \nmembers and a supervisor helped her up. \nThe claimant testified that she was hurting in her back, legs, and ankles areas. She testified \nthat she was not really hurting so much as she was sore. The claimant reported her injury to her \nemployer. Subsequently, the claimant was directed to go for medical treatment. She first sought \nmedical  treatment  from  North  Little  Rock  Baptist  Health  Emergency  Room  Department. The \nclaimant also treated with Concentra. According to the claimant, they checked out her back and could \ntell it was swollen and told her that she had \"a sprain. \" \n\nColeman – H303065 \n7 \nPer the claimant, she saw Dr. Thompson, and she gave her a brace for her knee. The claimant \ntestified that they gave her braces for her feet that wrapped around her ankles, which looked like \nsocks. Per the claimant the brace was like a sleeve and made of Velcro. The claimant also testified \nthat she had a brace for her knee. However, she admitted that she asked for a back brace. She testified \nthat she received treatment for her back in the form of physical therapy, a shot and medicine for her \nback. According to the claimant, they kept her off work for some days because her back injury was \n\"sprang.\" As a result, this was like a treatment plan. The claimant maintained that she had back pain. \nShe described her pain as pulling sharp aching and muscle spasms. The claimant also testified that \nher back was swollen, and it felt stiff. According to the claimant, her \"back felt tinglingly,\" and she \nhad sharp pains and aches in it. The claimant testified that she was released to return to work twice. \nShe was released once when the doctor had released her and explained that she was advised by Ms. \nGwatney\n1 \nto release her. However, the claimant maintained that she did not recall the exact date. \nAccording to the claimant she was released with restrictions, but her employer refused to put her \nback to work because she was a liability. The claimant stated that at that time, she was unable to \nretrain the children and perform her normal duties because the Centers did not have any light duty \nwork. She testified that she must be physically able to restrain a child, and she might have to pick \nup a child to console them. The claimant testified that she was required to lift up to 50 pounds in her \njob. She also testified that she was having difficulties walking after her fall due to her knee, back, \nshoulder, and ankles. According to the claimant she received physical therapy and a shot with an \n18-inch needle, but no pain medicine was given to her when that was done. The claimant maintained \nthat she continued to have problems even after she was released with restrictions. Once she was \nreleased by Concentra, the claimant went over to OrthoArkansas for continued medical treatment, \n \n2\n Rebecca Gwatney is the senior claims adjuster Risk Management Resources. \n\nColeman – H303065 \n8 \nwhere she received the shot. The claimant admitted received some compensation. However, she \ntestified that Ms. Gwatney stopped her checks, but she does not recall the exact date. She confirmed \nthat she spoke with Ms. Gwatney about her checks being stopped and her need for medications. At \nthat point, Ms. Gwatney told her she had stopped payment of her medications for her injury as of \nMay 3 1, 2023. The claimant testified that she started going to doctors using her Medicaid insurance. \nAccording to the claimant, she had issues with OrthoArkansas and had to file complaint for sexual \nharassment. \n2\n \nThe claimant confirmed that she received a change of physician to treat with Dr. Victor \nWilliams. She had to stop her treatment with him because he did not receive payments for her \nmedical care. Per the claimant, she received treatment for her whole body, including her knees, \nshoulder, back, neck, and ankles. Dr. Williams treated the claimant with some physical therapy, but \nshe could not complete her treatment. The claimant testified that the adjuster did not give her a \nreason for stopping her treatment with Dr. Williams. As a result, she was left with finding her own \ntreatment. \nAt that point, the claimant started looking for work. She testified she worked for Amazon \nand did some \"Ubering.\" She denied being paid mileage. The claimant admitted that she had an N4RI \nof both her back and neck. She maintained that she had an MRI of her shoulder at OrthoArkansas \ndue to a rotator cuff tear. The claimant testified that she wants to be paid for her injuries. She testified \nthat she continues to have problems with her knee giving out on her. Per the claimant, her knee swells \nand goes up and down, and it is painful. She stated that she has problems with sharp pains in her \nknee, from her feet as well as her shoulder and back. However, she admitted that sometimes its due \nto the medication she is on. \n \n3\n The alleged complaint against OrthoArkansas is not part of this claim for workers' compensation benefits \nand will not be address in this Opinion. \n\nColeman – H303065 \n9 \nOn cross-examination, the claimant admitted that she is aware of her back condition being \ndenied by the respondents. About her fall, the claimant agreed that she testified that she fell and \nwent the splits, meaning she fell backwards because the floor was slippery. However, the claimant \nadmitted that she does not remember the actual mechanics of the fall because it was almost two \nyears ago. She maintained that she \"remembered falling, hitting her knee and falling in a splits.\" \nUnder further cross-examination, the claimant testified: \n Okay. You don't remember hitting your shoulder or head on anything, do you? \nA.       Yeah. I hit I went back and hit my head. \nQ  Okay. How, mechanically, did that happen if you were in the splits? \nA.  Because when I hit fell, I hit my Imee, I think. I slid and then I went back \n 'cause I couldn't balance myself, so it's like boomp, boomp. \n                         Q.       You went back over your leg behind you? \nA.  I fell and I went in a split. I hit my knee, went in a splits, and fell back. I \n remember fallin' back, so if you askin' me for every single step on how I \n fell, I remember goin' down. If I went down, my slidin' , boom, walkin', \n slidin', and goin' back. That's what I remember.  \nQ  Okay. You're not claiming any type of head injury or brain injury in this case \n though, right? \n A.      No, sir. \nQ.  All right. Did I hear you say on direct that your shoulder injury affected the \n way you walked? \nA.     No. I said my knee. She said did my knee - - \nQ.     Okay. \nThe claimant specifically denied having testified that her shoulder affected her walk. She \nessentially stated that her hips and knees caused her to walk a certain way. She confirmed that she \ntestified that Dr. Smith injected her with an 18-inch needle. However, the claimant admitted that \n\nColeman – H303065 \n10 \nthis was an exaggeration because she was nervous. (She apologized for her overexaggeration about \nthe needle and having testified to this length multiple times). \nAbout the claimant's medical records, she testified that she did not sign any type of medical \nauthorization for her past medical records to be released. According to the claimant, her doctors told \nher that Ms. Gwatney told them she was watching the claimant. She explained that she has a problem \nwith the respondents knowing her past medical history and using that against her to not pay for her \nfuture treatment in a situation that was obviously caused at her job, which was recorded. Per the \nclaimant, it is a problem when she is being singled out to be watched so that they can find a way to \nsend her back to work without any restrictions. The claimant maintained the doctors told her they \nhad researched her the day she went in to see them because Ms. Gwatney had told them about her \npast medical injuries. She essentially maintained that it is improper for the respondents to conduct \nan investigation of a pre-existing condition in the context of determining what is compensable and \nwhat is not compensable, even if one has wrong motives. The claimant essentially stated that she \nhas been discriminated against in trying to get proper treatment. \nShe  confirmed  that  she  has  a  long-standing  diagnosis  of  fibromyalgia.  The  claimant \nadmitted that she testified in her deposition that it caused her pain and discomfort all over her body. \nShe further admitted that there are medical reports showing that she has pain in joints all over her \nbody due to her fibromyalgia. \nThe claimant denied that her foot x-ray done in May of 2023 was normal. Instead, she \ntestified that it showed a foreign object in her foot. She went on to state that a lot of \"stuff' come \nback as normal but have something wrong with them. The claimant maintained that she was not \naware that the back x-rays done on May 2, 2023, were normal. She denied being familiar with the \nx-rays of her shoulder done on November 16, 2023, which revealed only degenerative changes. \n\nColeman – H303065 \n11 \nPer the claimant, she was only aware of different things being shown, such as it being swollen. She \ndenied that the nerve conduction study showed normal results. The claimant stated that the medical \nreport of the MRI of her shoulder shows tendonitis and bursitis, then if that is in the report, that is \ncorrect. She underwent an MRI of her lumbar spine in 2023 and 2019, and they both were deemed \nto be the same. The claimant confirmed that she was released to full duty work by Concentra on \nMay 3 1, 2023, but it was rescinded. According to the claimant, Ms. Gwatney told them to send her \nback to work. She testified that the next day they rescinded it. Dr. Seale released the claimant on \nJuly  3.  The  claimant  was  released  to  return  to  work  on  July  4,  and August  10, 2023,  by \nOrthoArkansas. According to the claimant, she was sexually assaulted and had to file a complaint \nagainst them. The claimant was released from physical therapy at Concentra on August 25, 2024, \nbecause she made considerable progress. \nDuring the claimant's deposition, she stated that she had not had any accidents or incidents \nsince April 30, 2023, involving any of the body parts involving her claim for workers' compensation \nbenefits. She confirmed that it was her testimony that she did not have any accidents or incidents \ninvolving any of the body parts she is now claiming in this case. \nHowever, she testified: \nQ.  And you told me in your deposition that you had not had any accidents or \nincidents involving any of those body parts since April 30th, 2023, correct? \n A. Since. \n Q. You don't understand the word since? \nA.         No. You're saying after April — after my injury? \n Q. Yeah. \n A. Yeah, that's correct. \nQ.        You maintain there's been no accidents or incidents involving those body         \n            parts, right? \n\nColeman H303065 \n12 \n A. Right. \n Q. All right. And is that still your testimony today? \n A. Right. Well, I had a wreck and hit a deer. \n Q. Okay. \n A. Yeah, so \n Q. What body parts \nA.  So that that that was after my injury. That was — I had a wreck like in what \n 2025, 2024? \n Q Okay. That's what I'm asking you about. \n \n A. The end of it. \nQ. February 16th, 2025, you're at the E.R. complaining of bilateral hand pain, \n neck pain, left knee pain, bilateral shoulder pain after hitting a deer. You \n don't dispute that, do you? \n A No, I just said the left side, the left knee. \n Q. Do you know what bilateral means? \n A. Bilateral. What does bilateral means, the opposite side? \n Q. It means both sides. \nA.   Oh, well, yeah, of course my injury was already hurtin,' but I did have a whole \n  deer hit my car so... \nQ.  You told me you had last been symptomatic in your back in 2019 or 2020 before \n this accident at Centers. \n                          A.      Right, 'cause I was workin' and I was functional. \nQ.  Right. You told me you did not have any symptoms or problems basically since  \n you started at Centers, right? \nA.  Yeah. I took medication and I told you I took medication to substain [sic] my \n inj- -- my pain or whatever, so - \nQ.  No. The question was, when was the last time you were symptomatic, and \n your deposition testimony, on page 129, was that you had not been \n symptomatic since 2019 or 2020. Are you changing your testimony today? \n\nColeman - H303065 \n13 \nA.  Well I told you I was takin' medications to be functional. So, I mean, symptoms \n I always have certain symptoms if I have fibromyalgia. \n \nThe claimant was asked if she was changing her testimony. She would neither deny nor \nadmit that she was changing her testimony. Instead, her response was \"Please go back and look at \nthe deposition because I do not recall that. \" The claimant was asked about symptoms in her \nshoulder, back, neck, and legs prior to April 30, 2023, and she answered, \"It was in \"20 or \"19, ' \nbefore I went to work for Centers. \nIt appears that the claimant sought medical treatment on August 30, 2022; October 18, 2022; \nNovember 22, 2022; February 9, 2023; and March 9, 2023, consistently complaining of significant \nback pain with radiculopathy, radiating pain into her legs. On February 9, 2023, the claimant \ncomplained of back pain, right lower extremity pain, shoulder pain, aching, stabbing, throbbing, \nburning, electrical sensations cramping in the low back, pain at an 8 on a 10-point scale, pain \ninterrupting her life at 8 out of 10, pain interrupting regular daily activity at 7 out of \n10. The claimant was prescribed Tizanidine for muscle spasms. She admitted that she does not \ndispute the foregoing, which was done a couple of months before her accident at Centers. \nThe claimant saw Dr. Aditi Saraswat on March 9, 2023, complaining of back pain, lower \nextremity  pain,  shoulder  pain,  significant  lower  back  pain  with  radiculopathy,  chronic  pain \nsyndrome. Again, she was prescribed Tizanidine for spasms and Gabapentin. The claimant was \nunable to complete physical therapy that she started in 2022. Her doctor discussed with her medical \nbranch  block  injections  and  radiofrequency  ablation  procedures  for  her  back  condition.  She \nconfirmed that she does not dispute the report. The claimant confirmed that within two months of \nthe injury date, she was at complaining of low back pain and radiculopathy to her doctor. \n \n \n\nColeman - H303065 \n14 \nThe following exchange took place: \nQ — obviously your statement to me under oath in your deposition that \n you hadn't had problems since 2019 or 2020 was not a true statement, was it? \n \nA.  Well, I didn't have problems without medication. \n \n Under further questioning, the claimant maintained that it was a true statement, because she \nwas working and could work with the injuries. She denied having all the symptoms as set forth and \ntermed. According  to  the  claimant,  she  only  had  pain. The  claimant  stated  that  she  must  have \nmisunderstood the questions. She maintained that she misunderstood the question about her being \nsymptomatic before April 30, 2023. However, the claimant admitted she was asked at the end of \ndeposition if there was a question she did not understand or needed for it to be asked again or rephased \nand she did not indicate she misunderstood anything. She was also instructed of this at the beginning \nof the hearing. She maintained that she did not have any symptoms between 2020 and her injury in \n2023, although obviously she was getting treated for a back injury or pain or pain management. The \nclaimant stated, \"1 was under pain management.\" The claimant was asked about her testimony of no \nsymptoms or being symptomatic in 2020, and she began talking about diagnoses of swollen ankles, \nspranged  [sic]  ankles,  and  torn  madiscus  [sic].  She  began  testifying  about  being  harassed  at \nOrthoArkansas, which they allegedly touched her breasts and tried to take off her wig. The claimant \nmaintained that she must have misunderstood symptomatic to mean symptoms or diagnosis that \nConcentra gave her. Per the claimant that is what she thought was being asked of her. The claimant \nspecifically stated in her deposition that she had not had any prior problems, symptoms, injuries, or \nconditions with her right shoulder. \nHowever, she maintained that she does not recall being asked if she had any injuries to her \nshoulder. According to the claimant, she only heard respondents' counsel make mention of an MRI. \n\nColeman - H303065 \n15 \nThe claimant was asked if she now admits she did have prior shoulder problems before April 30, 2023, \nand she responded: \"l don't recall.\" She was asked if she currently disputes the medical records if they \ndocument her having shoulder complaints in 2022 and 2023. The claimant stated that she does not, \nshe just wants to see them. The claimant was shown pages 112 and 113 of respondents' exhibit, which \nis a medical record form Jefferson Regional on November 25, 2018. Per these medical notes, the \nclaimant complained of right-sided shoulder problems and upper arm problems. However, she did not \nrecall this event. On October 18, 2022, the doctor specifically recounts her reported history of shoulder \npain. That was less than six months before her work incident in April 2023. The claimant was asked \nif she disputes this report, and she stated that due to all the false documentation she has experienced \nshe would like to see it. The claimant stated she has challenged the validity of the reports. However, \nshe next maintained that she had not done so because she did not know the process and she is fighting \ntoo many battles. \nThe claimant confirmed that she is asking for temporary total disability from May l , 2023 \nand continuing to a date to be determined. However, the claimant admitted that she testified that on \ndirect examination that she worked as a driver for Uber. She also admitted to having testified that \nshe has applied for work as a delivery driver for Amazon but has not worked for them. The claimant \nadmitted that she has worked for Uber Eats. She also gives people rides occasionally for pay, favor \nor trade. \nUnder further questioning the claimant admitted the following: \n Q. All right. So, you 're not obviously totally incapacitated? \n     No. \n\nColeman - H303065 \n16 \nShe confirmed that if she is going out and doing a task, she is earning money. However, the \nclaimant maintained that she must be under medication and cannot do what she wants to do. She \ndenied that she could do her prior work for the respondent-employer because of her injury. According \nto the claimant, they would not allow her to return to work. She admitted that she applied for \nunemployment insurance benefits and received those benefits. The claimant admitted that she was \nhonest and truthful with the Arkansas Department of Workforce Services when she completed her \napplication. She confirmed that she told Workforce Services she did not have any disabilities to \nprevent her from working, which are on page 88, 99, 100, 101, and 103 of respondents' non-medical \npacket. The claimant was asked if she was lying, and her response was \"Well not anything that's gonna \nstop me from workin' certain jobs, no.\" \nThe claimant attempted to further explain her ability to work: \nQ. And your unequivocal answer is no, you did not have any disabilities that \nprevent you from doing your job, right? \n  A. Exactly. \nQ. And you indicated that you could go to work full-time, and you could start \nimmediately, correct? \n Correct. \n Q. And you weren 't lying when you gave those answers, were you? \n I wasn 't lying. \nQ.  Okay. You agree if you have no disabilities, you can go to work full-time and \n  you can go to work immediately. You wouldn't be entitled to a benefit that's \n  designated for someone who 's totally incapable of working, right? Those two \n  don't line up? \n   A. Right. It don’t line up. \n \n   Q. Okay. \n \n\nColeman - H303065 \n17 \n   A. But if I'm told to say somethin then that is — it - - it don 't matter long as you \n   can work. They don 't have - they don 't have a answer. mat I was told, they \n   don't have a great answer. \n \n  The claimant continued to testify that on the application for unemployment benefits she had \nto answer that she was not fully disabled because there was no answer for partial disability, or 30% \ndisabled. According to the claimant, when accepting a job, it is at that point when she would answer \npartial or full-time disability. The claimant went on to try to explain away and give conflicting and \nconfusing testimony about her having indicated on her application for unemployment benefits that \nshe was able to work. She was asked if she was totally incapacitated at the time she completed the \napplication and if she was telling the truth. Her response was \"I was advised no.\" The claimant \nadmitted that she drew benefits based on her answer of \"No. \" She explained that she did exactly that \nbecause she had no income. \nHowever, the claimant admitted that at one point her unemployment benefits were suspended. \nAlthough the claimant's benefits were suspended because she put down employers that she claimed \nthat she applied to for work but when they did an audit, they never heard of her or from her. However, \nshe denied that •they advised her of that action. The claimant was that if there is a document of \nrecord from the Department of Workforces saying that is the finding and the reason for her benefits \nbeing suspended if she has any validation to dispute that, she replied \n — I don't recall. She went on to give conflicting and confusing testimony in this regard. \nHowever, the claimant testified that she does not know anything about what has been explained to \nher in that regard. The claimant next maintained that she does not recall it and does not believe that \nhappened. \n\nColeman - H303065 \n18 \nMedical Evidence \nPreviously,  on  November  25,  2018,  the  claimant  sought  medical  treatment  from  the \nEmergency Department of Jefferson Regional Medical Center/JRMC due to, among other things, \nsprain of the shoulder and upper arm, and strain of right elbow and forearm. \nThe claimant sought via an ER visit to Baptist Medical Center on May 3, 2019, with \ncomplaints right knee pain, right ankle pain due to a fall. She also complained of neck and back \npain. \nAn  MRI  of  the  claimant's  lumbar  spine  was  performed  on  October  9,  2019,  with  an \nimpression of: \"Mild lower lumbar disc and facet degeneration with relatively minimal disc bulges \nat L4-5 and L5-S1 along with posterior annular fissures. No significant mass effect.\" \nThe claimant underwent a neurosurgery evaluation by Dr. Ahmed Bahgat on August 30, 2022. \nShe complained of chronic pain radiating into the hip and right lower extremity, multiple joint pains, \npain that radiated into the right hip, knees, and feet. The claimant further complained of joint \nswelling,  and  back  and  neck  pain.  On  physical  examination,  the  claimant  was  positive  for \narthralgias, back pain, gait problems, myalgias, and neck pain. \nFurther review of the medical records shows that on October 18, 2022, Dr. Aditi Saraswat \nperformed an initial evaluation of the claimant due to a history of chronic low back pain, right lower \nextremity pain, shoulder pain, neck pain which rates to be at 7/10. She described the intensity of \nher pain being throbbing, stabbing, burning, electric and cramping. \nOn  May  2,  2023,  the  claimant  sought  medical  treatment  from  Baptist  Health  Medical \nCenter/BHMC North Little Rock due to a sprain of unspecified ligament of the left ankle.\" The \nclaimant underwent x-rays of the left foot and right foot, which revealed no fractures/swelling. \nX-rays of her right hip were normal, and x-rays of her right knee showed no effusion/swelling. \n\nColeman - H303065 \n19 \nX-rays of the claimant's lumbar spine demonstrated no fractures but showed facet arthropathy at L4-\n5 and L5-S1. \n  Dr. Saraswat evaluated the claimant on May 3, 2023, due to multiple complaints of back pain, \nlower extremity pain, shoulder pain, neck pain, and fibromyalgia related symptoms. At that time, Dr. \nSaraswat recommended that the claimant undergo bilateral lumbar facet injections at L4-5 and L5-\nS1. He also ordered an MRI of her lumbar spine. \nThe claimant was seen at Concentra on May 10, 2023, due to a left ankle sprain by the \nMiriam Lawrence, NP. She reported having difficulties performing her job duties. Lawrence noted \nthat  on  palpation  the  claimant  had  left  and  right  sided  muscles  on left  sacroiliac.  Lawrence \nassessments were: \"Left sided ankle sprain. Right ankle sprain. Right knee sprain. Lumbar sprain. \nSprain of the left shoulder. Sprain of right shoulder.\" The claimant was placed on light duty \nfunctional restrictions. She was noted to have full range of her right shoulder. \nOn May 18, 2023, the claimant returned to Concentra. At that time, Lawrence released the \nclaimant to return to work any physical restrictions. She did not prescribe any medications for any \nof the claimant's conditions. \nNext,  on  May  31,  2023,  Concentra/Lawrence  directed  the  claimant  to  refrain  from \nrestraining clients. An MRI was performed of the claimant's right knee was performed on June 13, \n2023, which revealed in pertinent part, \"A horizontal tear of the lateral meniscal body,\" and other \npre-existing degenerative findings.\" \nDr. Victor Williams evaluated the claimant on June 1 8, 2023, for her work injury. At that \ntime, the claimant had multiple symptoms of the pain of the right shoulder, hips, neck, back, right \nknee meniscus tear, and fibromyalgia. He recommended oral steroids and physical therapy. On June \n\nColeman - H303065 \n20 \n23, 2023, the claimant returned for a follow-up visit at Concentra. At that time, the claimant was \nnoted to be approximately 25% of the way toward meeting the physical requirements of her j ob. \n  Subsequently, on June 27, 2023, Dr. Philip Smith at OrthoArkansas gave the claimant an \ninjection in the left knee. Dr. Smith also prescribed a knee brace. Per these clinical notes, he opined \nthat the claimant was attempting to limit her release from medical treatment. \nThe claimant underwent evaluation by Payton Ransom, PA-C, on July 3, 2023, for an office \nvisit to review and discuss with the claimant x-rays and MRI of her back, which was performed \non June 23, 2023. Ransom opined \"There are no objective findings of an acute injury.\" The patient \nhas a history of pain in her lower back and down the leg which she had been treated for pain right \nup until her injury. It was discussed with the claimant that she had an execration of a pre-existing \ncondition being her small annular tear at L5-L5 and L5-SI. Ransom released the claimant to full \nduty work from standpoint of her lumbar spine without restrictions. \nBoth Drs. Justin Seale and Allan Smith wrote letters to the claimant on July 21,2023 stating \nthat they could no longer provide medical care for her. The claimant allegedly was disrespectful, \ndisplayed disruptive behavior and made threats toward their staff. \nThe claimant filed for unemployment benefits insurance benefits on December 11, 2023. \nThe first week she claimed these benefits for was the week ending December 9, 2023. At that time, \nthe claimant stated that she was willing, able, and available to work beginning May 1, 2023. \nOn  January  18,  2024,  the  claimant  underwent  an  MRI  of  the  right  shoulder  with  an \nimpression: \"1. No full-thickness rotator cuff tear. No labral tear. 2. Mild to moderate supraspinatus \nand infraspinatus tendinosis. 3. Mild subacromial/subdeltoid bursitis.\" Also, EMG Studies of the \nclaimant' s lower extremities were normal. \n\nColeman - H303065 \n21 \nAdjudication \nA. Compensability of Alleged Injuries-Hips, Back, and Right Shoulder \nIn that regard, for the claimant to establish a compensable injury as a result of a specific \nincident, the following requirements of Ark. Code Ann. §11-9-102(4)(A)(i) (Repl. 2012), must be \nestablished: (1) proof by a preponderance of the evidence of an injury arising out of and in the course \nof employment; (2) proof by a preponderance of the evidence that the injury caused internal or \nexternal physical harm to the body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. §11-9-102 \n(4)(D), establishing the injury; and (4) proof by a preponderance of the evidence that the injury was \ncaused by a specific incident and is identifiable by time and place of occurrence. Mikel v. Engineered \nSpecialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). \nA compensable injury must be proven by medical evidence supported by objective findings. \nArk. Code Ann. § 11-9-102(4)(D) (Repl. 2012). \"Objective findings\" are those findings that cannot \ncome under the voluntary control of the patient. Id. 11-9-102(16). The element \"arising out of . . . \n[the]  employment\"  relates  to  the  causal  connection  between  the  claimant's  injury  and  their \nemployment. City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987). An injury arises \nout of a claimant's employment \"when a causal connection between work conditions and the injury \nis apparent to the rational mind.\" Id. \nIf the claimant does not establish by a preponderance of the evidence any of the requirements \nfor showing compensability, compensation must be denied. Mikel v. Engineered Specialty Plastics, \n56 Ark. App. 126, 938 S.W.2d 876 (1997). This standard means evidence that has greater weight or \nmore convincing force. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove \nBarium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). Based on my review of the record as a whole, \n\nColeman - H303065 \n22 \nand without giving the benefit of the doubt to either party, I find that the claimant has failed to prove \nby a preponderance of the evidence, medical evidence supported by objective findings that she \nsustained compensable injuries to her hips, and right shoulder, on April 30, 2023, during and in the \ncourse and scope of her employment with the respondent-employer while performing her job duties. \nIn the present matter, the claimant was not forthcoming about her prior long standing \nconsistent  complaints  of  ongoing  chronic  conditions  relating  to  various  body  parts,  and  her \nextensive ongoing medical treatment for fibromyalgia. Hence, the claimant has an extensive \nhistory of medical treatment preceding her work-related fall injury in April 2023 for multiple body \nparts and joints. \nAlthough the claimant had an MRI of the right shoulder, all the objective medical findings \nwere pre-existing and degenerative in nature and not related to her fall. As such, her claim for \ninjuries to her right shoulder and hips must be denied because the claimant did not establish by a \npreponderance of the evidence all the necessary requirements for showing compensability for her \nalleged injuries to her hips and right shoulder. \nConcisely, the claimant failed to prove by preponderance of the evidence that she sustained \ncompensable injuries to her hips and shoulder during her work-related fall in April 2023. \nWith respect to the claimant's alleged injury to her lumbar spine. Here the claimant has an \nextensive  history  of  medical  treatment for  chronic  back  pain  and  fibromyalgia.  The  claimant \nunderwent an MRI of the lumbar spine in 2019 and following her work-related fall of April 30, 2023. \nHer treating physician opined that there was no meaningful change in the two MRIs of her lumbar \nspine. During her initial visit at Concentra, under the care Nurse Ransom on July 3, 2023, she opined \n\"There are no objective findings of an acute injury.\" The patient has a history of pain in her lower \nback and down the leg which she had been treated for pain right up until her injury. It was discussed \n\nColeman - H303065 \n23 \nwith the claimant that she had an execration of a pre-existing condition being her small annular tear \nat L5-L5 and L5-SI.\" Prior to that the claimant was examined by Nurse Lawerance on May 10, and \nshe stated that the claimant had a muscle spasm on physical examination. However, at that time, \nLawerance released the claimant to light duty work from standpoint of her lumbar spine without \nrestrictions. However, on May 18, 2023, she released the claimant to full duty work. \nThe claimant reported on her application for unemployment insurance benefits that she was \nable to work as May 1, 2023, for which she received unable benefits. At one point, the claimant's \nunemployment benefits were suspended due to her having reported false job searches. The claimant \ngave conflicting and confusing testimony regarding her prior back condition. Most remarkably, the \nclaimant gave untrue deposition testimony about her prior treatment for her chronic back condition \nfor which she had received extensive on-going medical treatment to her back. The medical evidence \nof record clearly proves that the claimant has previously and consistently reported back pain and \nrelated symptoms. Here, the claimant's complaints of the back prior to her fall are no different than \nher current complaints. As such, I think it would require a significant amount of impermissible \nspeculation for me to attribute the annular tear to the claimant's work-related fall of April 30, 2023. \nTherefore, I find that the claimant has failed to establish a causal connection between her fall at work \nand the objective medical findings demonstrated on the MRI. However, I do attribute the muscle \nspasms to her fall. Under these circumstances, I am persuaded that the claimant sustained only a \nminor aggravation of her preexisting degenerative back condition, in the form of a muscle spasm. \nAs such, I am compelled to find that at best, the claimant sustained only a minor temporary \nexacerbation of her pre-existing/symptomatic degenerative back condition, which resolved no later \nthan May 18, 2023. \n\nColeman - H303065 \n24 \nThe  respondents  have  provided  reasonable  and  necessary  medical  treatment  for  this \ntemporary  aggravation  of  the  claimant's  pre-existing  degenerative  back  condition,  which  was \nsymptomatic at the time of her work-related fall of April 30, 2023. No temporary total disability \ncompensation is applicable under these circumstances because the claimant has received temporary \ntotal disability compensable for her compensable left knee injury during this period. \nB. Medical Benefits \nAn employer shall promptly provide for an injured employee such medical treatment as may \nbe reasonably necessary in connection with the injury received by the employee. Ark. Code Ann. \n11-9-5086) (Repl. 2012). \nThe claimant bears the burden of proving by a preponderance of the evidence that medical \ntreatment is reasonably necessary. Stone v. Dollar General Stores, 91 Ark. App. 260, 209 S.W. \n3d 445 (2005). \nAfter reviewing the evidence in this case impartially, without giving the benefits of the doubt \nto either party, I find that the claimant has not met her burden of proving her entitlement to any \nadditional medical treatment in connection with the compensable right knee injury she received on \nApril 30, 2023. \nHere, the claimant has received extensive conservative medical treatment for her right knee \nin the form of a medication regimen, a knee brace, and a steroid injection, for which the respondents \npaid. Her complaints are all subjective and not credible. Since 2018, the claimant has consistently \nreported multiple joint related ailments and fibromyalgia related symptoms prior to her compensable \nfall in April 2023. The claimant has been released to full duty by Concentra and Dr. Seale for her \nknee injury. No additional medical treatment has been recommended for the claimant's compensable \nknee injury of April 30, 2023. The claimant's own testimony was conflicting and confusing regarding \n\nColeman - H303065 \n25 \nher alleged need for additional medical treatment. In fact, the claimant has not indicated the need for \na particular treatment modality for her right knee injury. I did not find the claimant's testimony to be \ncredible concerning her alleged need for additional medical treatment for her right knee injury. It is \nnoteworthy that the claimant ultimately testified that she is not totally incapacitated and was able to \nperform work. In fact, the claimant essentially admitted that she was untruthful on her application \nfor unemployment insurance benefits. On this application the claimant reported that she was ready, \nwilling, and able to start working on May 1, 2023. \nI unable to find a trustworthy medical recommendation for additional medical treatment for \nher right knee injury. There is no credible evidence whatsoever demonstrating that any additional \nmedical treatment, is reasonably necessary in connection with the knee injury that she received on \nApril 30, 2023. As such, the claimant failed to prove by a preponderance of the credible evidence \nher entitlement to any additional medical treatment for her compensable right knee injury. \nFor the above reasons, I find that the medical treatment received by the claimant from \nSurgical Associates of Arkansas was not reasonably necessary and in connection with the right knee \ninjury received by the claimant. Hence, the evidence before me preponderates that the respondents \nhave  paid  for  all  appropriate  medical  and  related  expenses  associated  with  the  claimant's \ncompensable right knee injury of April 30, 2023. \nORDER \nThis claim for additional medical benefits for the claimant admittedly compensable right \nknee injury of April 30, 2023, and the alleged injuries to her hips, and right shoulder, is hereby \nrespectfully denied in its entirety. \nThe  claimant  proved  that  she  sustained  a  minor  temporary  exacerbation  of  her \npreexisting/symptomatic degenerative back condition, which resolved no later than May 1 8, 2023. \n\nColeman - H303065 \n26 \nHowever, the respondents are not liable for any benefits related to the claimant's back because \nthey have previously paid appropriate benefits for her minor back injury of April 30, 2023. \nIT IS SO ORDERED. \n \n \n \n      ________________________________ \n      CHANDRA L. BLACK \n      ADMINISTRATIVE LAW JUDGE","textLength":48029,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO.: H303065 MISTY COLEMAN, ENRLOYEE CLAIMANT CENTERS FOR YOUTH & FAMILY SERVICES, ENTLOYER RESPONDENT ATA WORKERS' COMPENSATION SI TRUST, RISK MANAGEMENT RESOURCES, INC., CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 10, 2025 Hearing held before Administrative...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["knee","back","shoulder","neck","sprain","rotator cuff","lumbar","strain"],"fetchedAt":"2026-05-19T22:34:20.838Z"},{"id":"alj-H304356-2025-11-10","awccNumber":"H304356","decisionDate":"2025-11-10","decisionYear":2025,"opinionType":"alj","claimantName":"Candace Fletcher","employerName":"International Paper Company","title":"FLETCHER VS. INTERNATIONAL PAPER COMPANY AWCC# H304356 November 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FLETCHER_CANDACE_H304346_20251110.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FLETCHER_CANDACE_H304346_20251110.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H304356 \n \nCANDACE FLETCHER, EMPLOYEE       CLAIMANT \n \nINTERNATIONAL PAPER COMPANY,  \nEMPLOYER                     RESPONDENT \n \nOLD REPUBLIC INSURANCE COMPANY,  \nCARRIER                      RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT, \nTHIRD PARTY ADMINISTRATOR           RESPONDENT \n  \n \nOPINION FILED 10 NOVEMBER 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 13 August 2025 in Little Rock, Arkansas. \n \nMr. Mark Alan Peoples appeared on behalf of the claimant. \n \nMitchell, Williams, Selig, Gates & Woodyard, PLLC, Mr. John P. Talbot and Ms. Abby \nHart, appeared on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n A Prehearing Order was filed on 10 June 2025 and admitted to the record as \nCommission’s Exhibit No 1. For this litigation, and consistent with that Order, the parties \nagreed to the following: \nSTIPULATIONS \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n 2. The employee/employer/carrier-TPA relationship existed on 26 June   \n  2023 when the claimant allegedly sustained an injury by specific incident to  \n  her left arm. \n \n 3. The claimant’s average weekly wage of $780.58 would entitle her to weekly  \n  benefits of $520 for Temporary Total Disability (TTD) and $390 for Partial  \n  Permanent Disability (PPD). \n \n 4. The respondents have controverted this claim in its entirety. \n\nC. FLETCHER- H304356 \n2 \n \nISSUES TO BE LITIGATED \n \n 1. Whether the claimant suffered a compensable injury to her left arm by  \n  specific incident on 26 June 2023. \n \n 2. Whether the claimant is entitled to TTD benefits from 8 July 2023 to 1  \n  December 2023. \n \n 3. Whether the claimant is entitled to reasonable and necessary medical   \n  treatment of her alleged compensable injury. \n \n 4. Whether the claimant is entitled to an attorney’s fee. \n \n All other issues are reserved.\n1\n \n \nCONTENTIONS \n \nThe Prehearing Order incorporated the following contentions from the parties’ \nrespective prehearing questionnaire responses: \nClaimant \n The Claimant contends that she is entitled to TTD from on or about \n8 July 2023 to her return to work elsewhere beginning on or about 1 \nDecember 2023. Claimant also contends that she is entitled to medical \ntreatment. This claim is controverted, and counsel is entitled to a \nmaximum of statutory fee. All other issues are reserved. \n \n Respondent \n \n The respondents contend that the claimant did not sustain a \ncompensable injury while employed with the respondents on 26 June \n2023, or she cannot carry her burden of proving she sustained a \ncompensable injury on such date. Further, the respondents contend the \nclaimant’s claim may be barred, or her benefits may be limited, due to \nher involvement in an incident of workplace violence.\n2\n The respondents \nreserve the right to modify, supplement or amend these contentions as \ndiscovery and investigation continue. \n \n \n \n \n1\n At the beginning of the hearing, the claimant sought to additionally plead a gradual onset \nof her alleged injury as an alternative theory. The respondents objected, stating, “That’s got \nother elements to it that we might have brought a witness to address had we known that \nwas going to come up today.” [TR at 8.] I sustained the objection, noting that any additional \ntheories for sustaining her claim and any claims for additional benefits were reserved. \n2\n The respondents withdrew this contention at the hearing. \n\nC. FLETCHER- H304356 \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witness, observing her demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable injury to her left arm by specific incident. \n \n4. Because the claimant has failed to prove a compensable injury, her other \nclaims are moot and will not be addressed in this Opinion. \n \n5. Because the claimant has failed to prevail on any claim for indemnity \nbenefits, she is not entitled to an attorney’s fee. \n \nADJUDICATION \nThe stipulated facts as outlined above are reasonable and accepted. It is settled that \nthe Commission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \n \n\nC. FLETCHER- H304356 \n4 \n \nSUMMARY OF THE EVIDENCE \nThe claimant was the only witness. The record consists of the hearing transcript and \nthe following exhibits: Commission’s Exhibit No 1 (the 10 June 2025 Prehearing Order); \nClaimant’s Exhibit No 1 (one index page and 20 pages of medical records); Claimant’s \nExhibit No 2 (one index page and five pages of non-medical records); Respondents’ Exhibit \nNo 1 (one index page and seven pages of non-medical records); and Respondents’ Exhibit No \n2 (three index pages and 93 pages of medical records). \nHearing Testimony \n The claimant was 40 years old at the time of the hearing. She testified that she had \nbeen working for the respondent-employer for six or seven weeks on the date of her alleged \ninjury. She worked as a palletizer, stacking packaged products onto shipping pallets.   \n The claimant stated that she “felt like a little pop” in her left arm while working on \n26 June 2023. [TR at 17.] She testified that her supervisor gave her some ibuprofen after \nshe reported the injury. She said that someone at work initiated a video chat with a doctor \nfor her after she returned for the start of her next shift still complaining of pain. According \nto the claimant, she then saw an orthopedic doctor on her own, via video chat at midnight, \nevery night, for the next seven nights. She did not recall any of those doctors’ names or \nprovide records from those visits. The claimant testified that she eventually saw a local \nprovider, Dr. Gil Johnson in July of 2023, around the same time that she was terminated \nfrom her employment.  \n The claimant eventually began working as a tax preparer with Jackson Hewitt on 1 \nDecember 2023. She testified that had she not been terminated, she could not have \nphysically performed her job with the respondent-employer during the time that she was \nnot employed.  \nQ:  ... eventually, you went back to work, right? \n\nC. FLETCHER- H304356 \n5 \n \nA:  Yes. \nQ:  I have December 1, 2023, does that sound right? \nA:  Yes. \nQ:  Okay. Where’d you go to work? \nA:  For Jackson Hewitt as a tax preparer. \nQ:  Okay. So a much less physically demanding job? \nA:  Yes. \nQ:  Are you physically able to do that job? \nA:  Yes. \nQ:  During that period from July the 8\nth\n of 2023, to December 1\nst\n, 2023, would \nyou have been able to do your job at International Paper? \nA:  No. \n \n[TR at 24.]  \n She denied any problems with her left elbow prior to 23 June 2023. The claimant \ndescribed the pain in her left arm as a “sharp shooting pain.” [TR at 26.] She said that at \ntimes the pain would get so bad that: \nA:  ...when my inflammation gets real high, I can’t even move it and it goes \nfrom one arm to the other. \nQ:  Okay. \nJudge:  The pain goes from one arm to the other? \nA:  Yes. \n \nId. She went on to state that she was still seeking treatment for her left elbow and forearm; \nand she claimed that a specialist diagnosed nerve damage in the elbow. \n On cross-examination, the claimant acknowledged that she had been diagnosed with \nchronic pain syndrome and that she was seeking treatment from Arkansas Pain Center \nbefore her alleged injury. On the nature of the onset of her injury, the claimant testified: \nQ:  And so the injury, I guess, I’m confused. You attribute it to this pop in \nyour arm, that’s when it started? \nA:  Yes. \nQ:  Okay. But you’re also reserving the right to say it was a gradual onset \ninjury of some kind? \nA:  Oh, no. It happened while I was working. \nQ:  It started with this pop? \nA:  Yes. \nQ:  It wasn’t bothering you before that? \nA:  I couldn’t work there if it was bothering me. \nQ:  And had—you had this pop, and that’s when it all started? \nA:  Yes. \n\nC. FLETCHER- H304356 \n6 \n \n \n[TR at 32-33.] She also testified that she reported an accurate past medical history and list \nof current medication to Dr. Gil Johnson when she saw him on 20 July 2023. \nQ:  ... When you first started seeing Dr. Johnson, did you tell him that you’d \nbeen in good health with no major problems? \nA:  Yes. \nQ:  Okay. \nA:  I took a physical. I took a physical. He also test[ed] me for diabetes and \nall—and urine specimen. So he also knew what medications I was on. \nQ:  Okay. So did you mention to him— \nA:  Uh-huh. \nQ:  -- about the pain doctor? \nA:  Yes. \nQ:  And the chronic pain syndrome and the Hydrocodone? \nA:  Uh— \nQ:  And the Gabapentin? \nA:  Yes. Chronic pain was from my lower back, yes. I’m having to— \nQ:  Did you ever tell Dr. Johnson that you had suffered more of a repetitive-\nmotion-type injury? \nA:  Prior or after? \nQ:  When you saw him in July or August of ’23? \nA:  I didn’t know exactly what, actually—what, actually, caused it, but I know \nit had happened. So once I seen Dr. Gil [Johnson], we were more trying to see \nwhat it was, not what caused it. \n \n[TR at 34.]   \n The claimant testified that she returned to work after the alleged injury and that \nshe continued working until 11 July 2023 when she was given notice of her termination. \nQ:  And what did you understand the reason for your termination to be? \nA:  Workhouse violence, which was a coverup for the accident. \nQ:  Okay. And why do you say that? \nA:  Because I reported that the machinist was speeding the machine up and \nworking me more than normal and no one did anything about it. So when I \nbecame injured, then, that’s when the HR Department and all that started \nreaching out. \n \n[TR at 35.] She went on to explain that she believed a machine operator was intentionally \nrunning her production line too quickly and that she participated in a verbal altercation of \nsome sort about it. That altercation was the stated basis for her termination. \n \n\nC. FLETCHER- H304356 \n7 \n \nMedical Evidence \n On 8 June 2023, before the date of the injury alleged in this claim, the claimant \nattended a follow-up visit at Arkansas Pain Centers. The note from that visit provided, in \npart: \nCHIEF COMPLAINT: Pain \n \nSUBJECTIVE COMPLAINTS (HPI): ... Ms. Fletcher is reporting pain \ntoday as high as 8.5/10, which stays at a 5/10 lasting 2-3 hours. \n... \n \nDIAGNOSIS/MEDICAL DECISION MAKING: \nM54.2 Cervicalgia \nM54.6 Pain in thoracic spine \nM54.16 Radiculopathy, lumbar spine \nM25.512 Pain in left shoulder \nG89.4 Chronic pain syndrome \nM25.511  Pain in right shoulder \nM54.50 Low back pain, unspecified \nM62.830 Muscle spasm of back \nM96.1 Postlaminectomy syndrome, not elsewhere classified \nZ79.891 Long term (current) use of opiate analgesic \nZ79.899 Other long term (current) drug therapy \n. . .  \n \nPLAN: \nRefill meds today—Ms. Fletcher has requested an increase in pain \nmedication several times. Considering her MRI findings, that she takes \nSoma 3 times daily, and physical presentation, she is not a good \ncandidate for an increase in medication at this time. A drug holiday \nmay be a better option for this patient. \nUDS [urine drug screen] and pill count will be performed periodically to \nmonitor medication usage. \nPMP [Arkansas’ Prescription Monitoring Program] was reviewed prior \nto today’s visit. No concerns. \nBowel program: adequate control with current regimen. Encouraged \nfiber and water intake for prevention. \n \n[Resp. Ex. No 2.] The note for that visit also shows that she was assessed for/with right \nshoulder pain, chronic low back pain, lumbar spondylosis, and myofascial pain syndrome \nalong the right hip and right shoulder, both anteriorly and posteriorly. \n\nC. FLETCHER- H304356 \n8 \n \n According to the claimant, she had a number of injury-related physician visits before \nbeing referred to Dr. Gil Johnson. But she did not introduce those records into evidence. On \n20 July 2023, the claimant presented to the College Park Family Clinic, where she was seen \nby Dr. Johnson. The note from that visit includes: \nPROGRESS NOTE: \nCandace comes in today for assessment of injuries here. She comes in \nwith the nurse case manager who was assigned. Candace works at \nInternational Paper. She complains of pain in her left arm that hurts \n[...]. The safety and health department referred Candace to a \ntelemedicine company: Ortho Live. She was given neck exercises and \npostural changes for exercises for her left arm. She subsequently saw \nher primary care doctor who prescribed steroid dose pack that was a 5-\nday prescription. He also gave her a muscle relaxant. She had a \nscheduled visit again with the Ortho Live physician—telemedicine who \nadvised her to stop the steroid dose pack after she had taken the first 2 \ndays of it. She talked to the telemedicine Dr. for the next several days \nwith the last telemedicine consult being July 7 at 1 AM. She was \nreferred to me for evaluation after that and present today for initial \nvisit. \n \nPAST MEDICAL HISTORY:  She is started working at International \nPaper in May of this year. She reports that she’s in good health with no \nmajor medical problems. \n \nPAST SURGICAL HISTORY: none reported. \n \nCURRENT MEDICATIONS: none reported. \n \nPHYSICAL EXAM: \n. . . \nExamination of the left upper extremity reveals discomfort at the \nantecubital fossa and proximal forearm. This is over the brachioradialis \nmuscle mostly. She has good grip strength. Tinel’s sign is negative. \nPhalen’s test is negative. She does not have pain in the axilla or her \nneck. She has a normal biceps reflex. \n \nIMPRESSION: \nLeft forearm strain. \n \n[Resp. Ex. No 2.] Dr. Johnson ordered X-rays of the claimant’s left arm. That imaging was \nperformed on 31 July 2023. According to the reports: \nPROCEDURE: 2 view left forearm \nFINDINGS: The left radius and ulna are unremarkable. \n\nC. FLETCHER- H304356 \n9 \n \n. . .  \nPROCEDURE: 2 view left elbow \nFINDINGS: Left elbow is unremarkable. \n \n The claimant then returned to Dr. Johnson’s clinic on 1 August 2023. The notes from \nthat visit include: \nShe continues to have pain when I palpate the brachioradialis muscle. \nTinel’s test is negative \nPhalen’s test: [blank space in original] Allens’s test is negative. There’s \ngood circulation to the hand. \nShe complains of pain when she extends her left forearm out to [150 \ndegrees]. She can extend all the way to 180 [degrees] although she \ncomplains of discomfort at the brachioradialis muscle on the left side. \nThere is no pain to palpate the lateral or medial epicondyle or the \nantecubital fossa today. I did not observe fasciculations when I palpated \nand observed the musculature of the left forearm. She has good CRM \n[cervical range of motion]. There’s no pain to palpate the spinous \nprocesses of the cervical spine. \nShe states she was putting boxes onto a pallet. Usually the boxes are \nbanded together she states. Each load consisted of 25 boxes. She was \nplacing each load onto a pallet and she was to stack the pallet 7 high \nwhich means 7 boxes of 25 box load high which was above the level of \nher head. She performed this task many times over her shift and she \nstates she noticed around 4:10 AM that she had pain in her left \nforearm. This was more of a repetitive motion type injury, not a sudden \nsort of pain or one particular load or movement that caused it. \n \nIMPRESSION: \nThis appears to be musculoligamentous- brachioradialis strain. \nI’m going to review her progress and plan of care with the nurse case \nmanager. I have advised that Candace continue range of motion \nexercises, heat and over-the-counter Aleve or ibuprofen. I’m going to \nrecheck her back in one week or sooner if needed. Continue current job \nrecommendations which are regular duty allowed with job modification \nto prevent further injury as reviewed with the nurse case manager \npreviously and the EHS coordinator at the plant. I completed a work \nstatus to the report indicating my plan of care. \n \n The claimant returned again to Dr. Johnson’s clinic on 8 August 2023. He noted \nthat, “Her treatment has consisted of conservative measures with range of motion, heat and \nover-the-counter ibuprofen. She has good grip strength. She has no cervical complaints. She \nhas not responded to conservative treatment and she continues to complain of pain. This \n\nC. FLETCHER- H304356 \n10 \n \nappears to be a soft tissue injury. I did not observe fasciculations.” Dr. Johson released the \nclaimant that day and referred her to an orthopedist for review. \n Also on 8 August 2023, the claimant returned to Arkansas Pain Centers. That note \nprovides, in part: \nInterval history- no change in medical or surgical history reported.  \nRates pain at 7/10, site and nature unchanged, reports relief on the \ncurrent regimen with improvements in ADLs and QOL. No new \nweakness or numbness was reported. \n. . .  \n \nMs. Fletcher is reporting pain today as high as 10/10 which stays at a \n6/10 lasting 2 hours. (-) Constipation. \n \nPatient states she was informed at her last visit to not continue PT \nuntil she received her cervical MRI. Reviewed normal MRI today \n12.08.22 and informed she would begin PT again. Asking for printout of \nher MRI in order to get a second opinion. (Previous visit) States she \ncompleted PT. \n \nToday c/o lumbar and LUE pain. States a month ago she injur[ed] it at \nwork and is seeing a workman’s comp MD. States X-ray was done and is \ngoing to be scheduled with ortho. States she will have imaging faxed to \nclinic. \n \nId. The assessment from that visit did not include any mention of her left arm. \n \n The claimant then saw Dr. Michael Hussey on 30 August 2023. The note from that \nvisit provides, in part: \nSUBJECTIVE: \nCandace Fletcher is a 39-year-old female who presents to discuss \nconcerns about their elbow that began on 06/20/2023. She is a very \npleasant left-hand-dominant lady here for evaluation of scalp (sic) arm \npain that began when working her job loading pallets. She said pain \nradiates from her elbow up into the arm and down the forearm. Pain \nlocated lateral increased rotation and lifting. She states she saw a \ncompany doctor who prescribed NSAIDs and gave home exercises and \nMedrol Dosepak. She also saw an orthopedic fellow Dr. She denies prior \ntrauma or surgery on the arm. \n. . . \n \nSHOULDER EXAM: \nThere is no obvious trauma or deformity noted. Nontender over the AC \njoint, subacromial space, bicipital groove, glenohumeral joint line. The \n\nC. FLETCHER- H304356 \n11 \n \nshoulder has a full active range of motion without crepitus or pain. \nMotor strength of the shoulder is 5/5 to rotator cuff and deltoid muscle \ntesting. There is no major atrophy noted of the shoulder girdle \nmusculature. The patient has a negative Neer, Hawkins, Jove, Lag \nsign, Horn blower, apprehension, and Yergason’s test. \n \nELBOW EXAM: \nNo obvious sign of trauma or deformity and no skin lesions present. \nTender to palpation over the lateral epicondyle and extensor muscle \norigin. Nontender to palpation over the medial epicondyle, distal biceps \ntendon, cubital tunnel, triceps tendon attachment, olecranon process, \nand elbow joint line. There is full active range of motion of the elbow \nwith no crepitus. 5/5 muscle strength testing to elbow flexion and \nextension, pronation and supination. Motor strength testing is 4/5 to \nwrist extension limited. 5/5 wrist flexion strength. Positive tennis elbow \nstress test to resisted wrist extension with the elbow in full extension. \nNegative Tinel’s test at the cubital tunnel. The elbow is stable to varus \nand valgus stress. Full active range of motion of the wrist and hand \nwithout pain or crepitus. Sensation is intact to light touch to all nerve \ndistributions. Brisk cap refill to all digits. \n \n3 view X-ray of the left elbow: There is no obvious sign of trauma, \ndeformity, or lesions around the elbow joint. The ulnohumeral and \nradiocapitellar joints are well aligned. There are no major signs of \nosteoarthritis. \n \nASSESSMENT/PLAN \n39-year-old female sustained occupational related injury on 6/23/2023 \nwith left elbow pain and dysfunction with differential diagnosis: \n1.  Extensor tendon strain/lateral epicondylitis \n \n1.  Recommend conservative treatment at the present time to include: \n2.  NSAID prescription given. \n3.  Handout given on tennis elbow with home exercises given to be \nperformed daily. \n4.  Physical therapy prescription given for elbow/forearm strengthening, \nstretching, and modalities as indicated. \n5.  Recommended activity modification. \n6.  Forearm counterforce brace and wrist splint immobilizer ordered for \npatient, with instructions given on use. \n7.  Follow-up in 6 weeks for reevaluation. \n \n1.  Pain of left elbow joint... \n2.  Overweight... \n3.  Lateral epicondylitis... \n \n[Cl. Ex. No 1.] She was given a note authorizing a return to work that day with restrictions. \n\nC. FLETCHER- H304356 \n12 \n \n The claimant then saw Dr. Hussey again on 17 January 2024. The note from that \nvisit provides, in part: \nSUBJECTIVE: \nCandace Fletcher is a 39-year-old female. Since their last visit, patient \nreports feeling same. She is a very pleasant lady who returns back to \nclinic this time for nonoccupation-related problems but still with left \nelbow and forearm pain radiating. She states her work comp claim was \ndenied and she is no longer working at her previous job. She states \nsince that time her pain improved and she got a job at Amazon doing \ntemporary seasonal work and did a lot of lifting and increased pain in \nthe arm she states now more located anterior volar forearm areas \nincreased with lifting. She has pain in the day as well as at night \naffecting her sleep. She states she has taken a leave of absence from \nwork due to severe pain in the arm. She denies prior trauma or surgery \non the arm. \n. . . \n \nELBOW EXAM: \nThere is no obvious sign of trauma or deformity to the arm. Tender to \npalpation over the antecubital fossa and radial tuberosity and lateral \ncondyle. Nontender to palpation over the medial epicondyle, lateral \nepicondyle, cubital tunnel, triceps tendon attachment, olecranon \nprocess, and elbow joint line. There is full active range of motion of the \nelbow with no crepitus. Motor strength testing is 4/5 to elbow flexion \nand 3/5 to forearm supination. 5/5 triceps and forearm pronation \nstrength testing. 5/5 wrist extension/flexion strength. Positive Yergason \nand Speed test. Negative tennis elbow and golfer’s elbow stress test. \nNegative Tinel’s test at the cubital tunnel. The elbow is stable to varus \nand valgus stress. Full active range of motion of the wrist and hand \nwithout pain or crepitus. Sensation is intact to light touch to all nerve \ndistributions distally. Brisk cap refill to all digits. \n. . .  \n \n1. Biceps tendinitis \n \nId.  \n The claimant’s next encounter note was from a 5 February 2024 visit with Dr. \nButchaiah Garlapati at the Arkansas Pain Center clinic. That note includes, in part: \nSUBJECTIVE: \n. . .  \nStates she was injured left arm at work. [sic] She has been seeing Ortho \nArkansas. Reports she tore the tendons in her arm. She wears an arm \nbrace today under her elbow. She reports she has another brace she \n\nC. FLETCHER- H304356 \n13 \n \nwears at night. She states she will wear this brace until March 15\nth\n, \n2024 when she sees ortho MD again. \n. . . \n \nDIAGNOSIS/MEDICAL DECISION MAKING: \nM54.2 Cervicalgia \nM54.6 Pain in thoracic spine \nM54.16 Radiculopathy, lumbar spine \nM25.512 Pain in left shoulder \nG89.4 Chronic pain syndrome \nZ79.899 Other long term (current) drug therapy \nZ79.891 Long term (current) use of opiate analgesic \nM62.830 Muscle spasm of back \nM25.511  Pain in right shoulder \nM54.50 Low back pain, unspecified \nM96.1 Postlaminectomy syndrome, not elsewhere classified \nM79.18 Myalgia, other site \nM51.36 Other intervertebral disc degeneration, lumbar region \nM47.896 Other spondylosis, lumbar region \nM25.551 Pain in right hip \n \n Then, on 18 September 2024, the claimant saw Dr. Mark Tait at a UAMS orthopedic \nclinic for a visit identified in the provider’s note as an independent medical evaluation. That \nnote included: \nREASON FOR VISIT: Elbow pain \n \nDOCUMENT REVIEW: \n06/08/2023: Arkansas Pain Center progress report patient unable to \nattend therapy secondary to change in employment. Patient was \nscheduled 2 times a week for therapy and neuromuscular reeducation \nand gait training. Patient was given a home exercise plan. Medications \nincluding hydrocodone, naloxone, and gabapentin. She is also on Soma. \nThey recommended a drug holiday. \n10/09/2023: Arkansas Pain Center progress report. Pain medication \ncontinued as well as therapy. Medications include Voltaren at this time. \nHe mentions include Norco. Recommeded referral for neurodiagnostic \ntesting. \n. . .  \n \nCHIEF COMPLAINT: Elbow Pain, Left \n \nHISTORY OF PRESENT ILLNESS: \nCandace Latoya Fletcher is a 40 y.o. female patient. This is a new \npatient today who sustained a work injury on 06/26/2023. She worked \nat International Paper at the time of her injury. She complained of left \narm pain at presentation her initial visit was with telemedicine and she \n\nC. FLETCHER- H304356 \n14 \n \nwas given range-of-motion exercises. She also has tried a Medrol \nDosepak initially. She was also given a muscle relaxer. She injured this \nwhile stacking large boxes of paper. She states that the pain has \nimproved some but she has persistent pain diffusely throughout the \nelbow. She states that this can hurt at any time and is not necessarily \nassociated with activity but does seem to get worse with activity. \n. . .  \n \nExamination today shows diffuse tenderness throughout the \nantecubital fossa of the elbow. There is no significant swelling noted. No \nevidence of atrophy. I am unable to solicit point tenderness at the area \nof the lateral epicondyle. She has minimal tenderness with resisted \nwrist extension. She has full elbow range of motion. There is no mid arc \npain. She has no pain with tunnel flexion and extension. The biceps is \nexam[ined] today and there is a intact biceps tendon. She has good \nstrength of resisted supination. \n. . .  \n \nIMPRESSION:  \nImproved but continued left elbow pain of uncertain etiology without \nevidence of lateral epicondylitis or distal biceps tendinitis today. \n \nDISCUSSION/PLAN: \nI discussed with the patient at length in regards to her left elbow. She \nhas some diffuse tenderness in the antecubital fossa not consistent with \nbiceps tendinosis or distal biceps tendinitis. She has no evidence of \ninstability of the elbow consistent with posterior lateral instability. She \nhas no instability with varus and valgus stressing. There is no signs of \nperipheral compression in the arm no significant evidence of atrophy or \nswelling throughout the arm and today her exam is inconsistent with \nlateral epicondylitis. Although she is having some continued pain she \ndoes seem to have gone through the appropriate interventions and I see \nno indication for surgical intervention. She had a previous MRI which \nshowed no evidence of injury. You could consider repeating this MRI \nbecause of the persistent pain, but the initial normal MRI is reassuring \nas it is reported as normal. I reassured the patient today that I do not \nthink she has harming the elbow by using the arm although she may \nhave some persistent pain. \n \nIME QUESTIONS: \n1.  With greater than 51% medical degree of certainty that the \npreviously diagnosed left elbow sprain versus lateral epicondylitis did \nresult from her work injury on June 26\nth\n 2023, but there is no indication \nof current lateral epicondylitis today. \n2.  I have reviewed the video and [it] does show that she is moving the \nelbow and using the arm but a left elbow sprain or lateral epicondylitis \ncould still exist with the activity shown in the video. \n3.  The patient has reached maximum medical improvement. \n4.  The patient has no permanent restrictions or impairment. \n\nC. FLETCHER- H304356 \n15 \n \n. . .  \n \nADDENDUM 1/17/25: \nSecondary to MRI findings patient was unlikely to have lateral \nepicondylitis because of negative findings on the report. This was likely \na mild elbow sprain without current evidence of residual injury. \n \n On 15 March 2024, the claimant presented to the Little Rock Family Practice Clinic \nWest, where she was seen by Dr. Harold Hedges. She complained of needing her pain \nmedication refilled. She then returned to that clinic about two weeks later. The notes from \nthat visit include: \nCHIEF COMPLAINTS:  \nBlood work for anemia and Vitamin D due to deficiency.   \nc/o LUE nerve pain- wants referral \nHISTORY OF PRESENT ILLNESS: \nL arm pain. No inciting injury. Evaluation by Orthopedist. \nRecommended evaluation by neurologist. Requesting labs to follow up \non deficiencies. \n. . .  \nPLAN: \nReferral to: Neurology \nReason: Eval and treat- Pt already had MRI with Ortho to rule out \northopedic concerns. \n \n[Resp. Ex. No 2] \nDISCUSSION \n The claimant alleges that her injury occurred by specific incident. The claimant \nmust establish four (4) factors by a preponderance of the evidence to prove a specific \nincident injury: (1) an injury occurred that arose out of and in the course of her \nemployment; (2) the injury caused internal or external harm to the body that required \nmedical services or resulted in disability or death; (3) the injury is established by medical \nevidence supported by objective findings, which are those findings which cannot come under \nthe voluntary control of the patient; and (4) the injury was caused by a specific incident and \nis identifiable by time and place of occurrence. Mikel v. Engineered Specialty Plastics, 56 \nArk. App. 126, 938 S.W.2d 876 (1997). If a claimant fails to establish by a preponderance of \n\nC. FLETCHER- H304356 \n16 \n \nthe evidence any of the above elements, compensation must be denied. Id. As explained \nbelow, she has failed to meet this burden. \n The claimant has a history of being treated for pain across multiple body parts \nbefore the alleged work incident related to this claim. She was already an established \nchronic pain patient whose records from just before the alleged work incident noted that \nshe had “requested an increase in pain medication several times” and was “not a good \ncandidate for an increase in medication.” A “drug holiday” was suggested for her instead. \n A couple of weeks following that visit, she reported the alleged injury at issue in this \nclaim. Notably, she testified that she heard and felt a sudden “pop” in her left arm while \nworking and knew that was when she hurt her arm. Her report of a “pop,” which could be \nclinically relevant for diagnosing an injury is, however, not mentioned in any of the medical \nrecords relating to her alleged injury. \n A month after the alleged injury, Dr. Johnson saw the claimant and performed an \nexam that suggested a possible muscle strain. He ordered over-the-counter Aleve and \ndeclined to take her off work. About two weeks later, the claimant returned to Dr. \nJohnson’s clinic after negative X-ray studies. He again performed an exam with essentially \nno relevant findings. He noted, however, that “This was more of a repetitive motion type \ninjury, not a sudden onset of pain or one particular load or movement that caused it.” Dr. \nJohnson recommended that she continue over-the-counter medication for what appeared to \nhave possibly been a strained muscle. When the claimant returned again the following \nweek still complaining of ongoing pain and additional pain in another part of her arm, he \nreleased her to an orthopedist’s care, noting, “she continues to complain of pain. This \nappears to be a soft tissue injury. I did not observe fasciculations.” \n Interestingly, on the same day that Dr. Johnson released her and documented that \nshe “had no cervical complaints,” she presented for a follow-up visit at the pain clinic where \n\nC. FLETCHER- H304356 \n17 \n \nher complaints included ongoing thoracic and cervical pain. (It also appears that she had \nrecently refused physical therapy due to concerns with her cervical spine. She was assured \nthat the MRI had no findings; but it was documented that she wanted to look for a second \nopinion regarding the same.) As the respondents’ counsel pointed out, Dr. Johnson’s initial \nvisit note indicates that she reported being in good health with no current medications. \nInconsistent with that note, she seemed to testify, however, that she either told Dr. \nJohnson that she was already seeing a pain doctor for many complaints not related to her \narm and that she was taking hydrocodone and gabapentin OR that he would have known \nabout her medication anyway because he “took a physical. He also test[ed] me for diabetes \nand all—and urine specimen. So and he also knew what medications I was on.” It is \npossible that the claimant was misattributing to Dr. Johnson the urine drug screens \nperformed by the pain clinic to test for any substances besides what they knew to be \nprescribed; but there is nothing in the medical record to suggest that Dr. Johnson ordered a \ndrug screen, tested her for diabetes, or had any information about her relevant medical \nhistory or then-current drug regimen besides what she chose to report or not report to him \nthat day in the clinic. To the extent that she reported to Dr. Johnson that she was in good \noverall health, her pain clinic treatment records clearly contradict that assertion. To the \nextent that she claims that she did report those conditions, the record clearly reflects \notherwise. Either way, her credibility in this regard is wanting. \n Also, without any medical evidence supporting her assertion, the claimant testified \nthat she was physically unable to perform her work duties (or what had been her work \nduties) between the date of her termination and eventually starting a new job months later. \nThe record, however, does not show that she was taken off work at any time during her \ncourse of treatment; and she made no effort to establish any actual change in her physical \ncondition at the time of her termination to support a finding that she was, indeed, unable to \n\nC. FLETCHER- H304356 \n18 \n \nwork around that time. Lastly, she testified incredulously that the pain in her left arm was \nso bad at times that it jumped from her left arm over to her right arm. Taking these \nstatements together with her demeanor on the stand, I again do not find her to be a credible \nwitness. \n More than two months after her alleged injury, on 30 August 2023, the claimant saw \nDr. Michael Hussey. She complained of pain and tenderness. His exam suggested that the \nclaimant might have tennis elbow. She was, again, not taken off work. When the claimant \nreturned to Dr. Hussey’s clinic on 1 January 2024, the exam from that visit revealed a \nnegative test for possible tennis elbow, but possible bicep tendonitis.  \n When the claimant eventually saw Dr. Mark Tait on 18 September 2024, his \nimpression was “continued left elbow pain of uncertain etiology without evidence of lateral \nepicondylitis or distal biceps tendinitis today.” In response to questions apparently posed to \nhim as a reviewer on the case, Dr. Tait noted, “greater than 51% medical degree of certainty \nthat the previously diagnosed left elbow sprain versus lateral epicondylitis did result from \nher work injury on June 26\nth\n 2023, but there is no indication of current lateral epicondylitis \ntoday.” Basically, he acknowledged that she had ongoing subjective complaints of pain in \nher left elbow; but he found no objective support for a diagnosis beyond that. \n And it is on those subjective claims of pain, unsupported by credible objective \nfindings, that this claim turns and fails. The record shows that as her reports of pain \ncontinued, the doctors suggested different possible diagnoses or causes, but those varying \ndifferential diagnoses did not prove out. All of the imaging reports that were ordered \nreturned with negative or unremarkable findings. And Dr. Johnson specifically noted that \nhe did not observe any fasciculations during his examinations. Additionally, he at one point \nsurmised that whatever could be causing her pain could be of a chronic nature, but “not a \nsudden onset.” \n\nC. FLETCHER- H304356 \n19 \n \n The claim must fail for the lack of objective findings in support of a compensable \ninjury. Importantly, this claim can be distinguished from Nucor Yamato Steel Co. v. \nShelton, 2025 Ark. App. 249, 713 S.W.3d 494, in that Nucor (reaffirming its precedent in \nMelius v. Chapel Ridge Nursing Ctr., LLC, 2021 Ark. App. 61, 618 S.W.3d 410) supports the \nproposition that a compensable injury may exist where a physician prescribed a muscle \nrelaxer for reported pain and unobserved spasms. That is, in the absence of other clear \nobjective findings, a provider prescribing medication for muscle spasms, physical therapy, \nand pain management can be sufficient to establish an objective finding. Here, the records \ndo not show a level of clinical decision making in line with that in the Nucor case. Instead, \nthe claimant simply reported pain that was attributed, inconsistently, to either a mild \nmuscle strain or a ligamentous condition usually attributed to overuse. And the records of \nthe treating physicians\n3\n show only recommendations for over-the-counter medications for \nthe claimant’s otherwise unsupported subjective complaints of pain. \n In short, because the medical records in evidence are devoid of objective findings of \nan injury, the claimant cannot, and has not, proven by a preponderance of the evidence that \nshe sustained a compensable injury. Her other claims for benefits are therefore moot and \nare not being addressed in this Opinion.  \nAttorney’s Fee \n Because the claimant has failed to prove by a preponderance of the evidence that she \nsustained a compensable injury, her claim for an attorney’s fee must also fail. \n \n \n \n3\n I note that the claimant stated that she was prescribed a steroid by one doctor (and that \nanother doctor told her to stop taking the steroids) and that Dr. Tait’s report shows that she \nwas given a muscle relaxer at some point. The records admitted into evidence, however, do \nnot reflect actual orders or prescriptions for those medications. \n\nC. FLETCHER- H304356 \n20 \n \nCONCLUSION \n The claimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable injury by specific incident to her left arm. Accordingly, this claim \nfor initial benefits is DENIED and DISMISSED. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":39704,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H304356 CANDACE FLETCHER, EMPLOYEE CLAIMANT INTERNATIONAL PAPER COMPANY, EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE COMPANY, CARRIER RESPONDENT SEDGWICK CLAIMS MANAGEMENT, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED 10 NOVEMBER 2025 Heard before A...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:4"],"injuryKeywords":["back","repetitive","thoracic","lumbar","shoulder","hip","neck","strain"],"fetchedAt":"2026-05-19T22:34:22.939Z"},{"id":"full_commission-H404010-2025-11-07","awccNumber":"H404010","decisionDate":"2025-11-07","decisionYear":2025,"opinionType":"full_commission","claimantName":"Ricky Cooper","employerName":"Atlas Asphalt, Inc","title":"COOPER VS. ATLAS ASPHALT, INC. AWCC# H404010 November 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Cooper_Ricky_H404010_20251107.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Cooper_Ricky_H404010_20251107.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H404010 \n \nRICKY W. COOPER, \nEMPLOYEE \n \nCLAIMANT \nATLAS ASPHALT, INC.,  \nEMPLOYER \n \nRESPONDENT \nBITCO GENERAL INSURANCE CORP., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED NOVEMBER 7, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \n \n ORDER \n The claimant moves to file a belated brief.  The Full Commission \ngrants the motion.   \n An administrative law judge filed an opinion on July 22, 2025.  The \nadministrative law judge found that the claimant failed to prove an \nemployment relationship existed on the date of an alleged compensable \ninjury resulting from a motor vehicle accident.  The claimant filed a timely \nnotice of appeal to the Full Commission, and the Clerk of the Commission \nestablished a briefing schedule.   \n\nCOOPER - H404010  2\n  \n \n \n The claimant now moves to file a belated brief and states that \ncounsel for the respondents does not object.  Therefore, we direct the Clerk \nof the Commission to establish a final briefing schedule.   \n IT IS SO ORDERED.     \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1550,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H404010 RICKY W. COOPER, EMPLOYEE CLAIMANT ATLAS ASPHALT, INC., EMPLOYER RESPONDENT BITCO GENERAL INSURANCE CORP., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 7, 2025","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.942Z"},{"id":"alj-H403137-2025-11-06","awccNumber":"H403137","decisionDate":"2025-11-06","decisionYear":2025,"opinionType":"alj","claimantName":"Bobbie Laster","employerName":"Little Rock School District","title":"LASTER VS. LITTLE ROCK SCHOOL DISTRICT AWCC# H403137 November 06, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Laster_Bobbie_H403137_20251106.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Laster_Bobbie_H403137_20251106.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H403137 \n \nBOBBIE LASTER, EMPLOYEE   CLAIMANT \n \nLITTLE ROCK SCHOOL DISTRICT, EMPLOYER   RESPONDENT \n \nAR. SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA  RESPONDENT \n \nOPINION FILED NOVEMBER 6, 2025 \n \nHearing before Administrative Law Judge, Steven Porch, on September 2, 2025, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant was represented by Ms. Sheila Campbell, Attorney at Law, North Little Rock, Arkansas. \n \nRespondents were represented by Ms. Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  full  hearing  was  held  on  this  claim  on September  2,  2025.  A  prehearing  telephone \nconference  took  place  on June 4,  2025.  A  prehearing  order  was  entered  on the  same  day. An \nAmended Prehearing Order was entered on June 11, 2025,  and subsequently entered into evidence \nas Commission Exhibit 1, without objection or amendment. The parties confirmed the stipulations \nand the issues at the hearing. The parties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim.   \n \n2. An employer/employee/carrier relationship existed on February 26, 2024, \nwhen  Claimant  allegedly  sustained  a  compensable  injury  to  her  right \nshoulder. \n \n3. Respondents have controverted the claim in its entirety. \n \n4. The  parties  stipulate  to  Claimant’s  average  weekly  wage  of  $885.80, \nentitling her to temporary total disability (TTD) benefit rate of $591.00 \n\nLASTER H403137 \n \n2 \n \nweekly, and her permanent partial disability (PPD) benefit rate of $443.00 \nweekly \n \n \nThe parties have identified the following issues to be adjudicated: \n1. Whether Claimant sustained a compensable injury to her right shoulder by specific \nincident. \n \n2. Whether Claimant filed timely notice of her claimed injury \n \n3. Whether Claimant is entitled to reasonable and necessary medical treatment, mileage \nand benefits for her alleged injuries. \n \n4. Whether  Claimant  is  entitled  to Temporary Total  Disability  (TTD)  benefits  from \nFebruary 27, 2024, to a date to be determined. \n \n5. Whether Claimant’s attorney is entitled to a controverted attorney’s fee. \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant contents: \n \n That she sustained a compensable injury in the course and scope of her employment \nof  February  26,  2024, to  her  right  shoulder  from  lifting  for  which  she  should  be \ncompensated. \nRespondents contend: \n That Claimant did not suffer a compensable injury to her right shoulder on February \n26,  2024. Respondents  contend  that  Claimant’s  need  for  medical  treatment,  if  any, \nassociated with her right shoulder is related to pre-existing and underlying problems and \nnot an acute injury.  Respondents further contend that they did not get notice of a claimed \ninjury until May 8, 2024, and should not be liable for payment of any benefits prior to \nreceipt of actual notice of a claimed injury.  Respondents further assert that in the event \ncompensability is found, the medical documentation does not support entitlement to TTD \n\nLASTER H403137 \n \n3 \n \nbenefits during the period of time in question.  The Claimant continued to work for \nRespondent/Employer  through March 27, 2024.    Respondents  have  no  medical \ndocumentation indicating an off-work status subsequent to that time. \n(Addition) Based on post-date of injury wage information received from the Employer, it is \nRespondents’ position that Claimant would not be entitled to temporary disability benefits \nin the event her claim is found to be compensable, as it appears that she continued to \nreceive her salary.  Respondents will be relying upon these records once this matter is \nscheduled for a hearing. \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary  record,  I  hereby  make  the  following  Findings  of  Fact  and  Conclusions  of  Law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant  has  failed  to  prove  by  the preponderance  of  the  evidence that  she \nsustained a compensable right shoulder injury by specific incident.  \n \n4. Based on my finding of no compensability, the remaining issues of notice, reasonable \nand necessary medical treatment, TTD, and a controverted attorney’s fee are moot, and \nwill not be addressed in this opinion. \n \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, medical records, consisting of 31 pages; \nClaimant’s Exhibit 2, photographs, accident claim, and text messages, consisting of 10 pages; \nRespondents’  Exhibit  1, medical  records,  consisting  of 41  pages;  Respondents’  Exhibit  2, \n\nLASTER H403137 \n \n4 \n \ncorrespondence, wage records, text messages, and reports, consisting of 33 pages; Commission \nExhibit 1, Amended Pre-Hearing Order Filed June 11, 2025, consisting of 6 pages total. I have \nblue-backed into the record Claimant’s and Respondents’ post hearing briefs.  \nThe Claimant was employed as a Child Nutrition Manager for the Respondent/Employer \nduring the time of the alleged incident. Her job was to ensure that the children at her assigned \nschool received breakfast and lunch. On February 26, 2024, Claimant testified that she was putting \n25-pound breakfast bags onto a cart to deliver to the children at her assigned school. TR 14-18. \nWhen she placed the last bag onto her cart, she heard a pop in her right shoulder followed by \nimmediate weakness in her right arm. Id. The Claimant testified that she spoke to her immediate \nsupervisor Debra McElroy on the day of the alleged incident. Id. The Claimant further testified \nthat another co-worker, Ms. Holly, was present when she spoke to Ms. McElroy about her alleged \nright shoulder injury. TR 17-18, 31. However, this co-worker witness was not present to testify at \nthe hearing.  \nClaimant met with Dr. Lawrence O’Malley on the same day of her injury, February 26, \n2024. CL. Ex. 1, pp. 1-5. According to Dr. O’Malley’s progress note the Claimant came to see him \nfor a “follow-up evaluation of her bilateral shoulder pain.” Id. The note further states that her right \nshoulder pain has “continued to worsen.” Id. Dr. O’Malley further noted that Claimant’s right \nshoulder “has been bothering her for the past few years....”  Id. He went on to state that Claimant \ndoes not “recall any traumatic injury.” Id. Dr. O’Malley ordered an MRI of her right shoulder and \nplaced her on an anti-inflammatory, Meloxicam. Id. The MRI was administered on March 4, 2024, \nwhere a complete “retracted tear is of the supraspinatus is seen with retraction to the level of the \nglenohumeral joint.” CL. Ex. 1, pp. 6-7. The report classified the retracted tear as “High-grade \nnear complete tear of most of the infraspinatus tendon is seen with only a few fibers of the \n\nLASTER H403137 \n \n5 \n \ninfraspinatus remaining.” Id. The report further read that “Moderate tendinosis of the superior \nfibers of the subscapularis is seen with articular sided tear of the superior fibers. The teres minor \ntendon is intact. Moderate supraspinatus and infraspinatus muscle atrophy is seen.” Id.  \nThe Claimant eventually had surgery to repair her right shoulder rotator cuff tear by Dr. \nO’Malley on March 27, 2024. CL. Ex. 1, pp. 13-14. The Claimant had a follow-up visit with Dr. \nO’Malley after her rotator cuff surgery on April 11, 2024. Id. at 15-19. There the Claimant reported \nthat she was doing well. Id. Dr. O’Malley ordered Claimant to start therapy and to continue to do \nelbow range of motion exercises. Id. Claimant testified at the full hearing that the surgery did in \nfact benefit her. TR 37. \nDebra McElroy, Claimant’s direct supervisor, testified that she does not recall Claimant \ntelling her that she injured her right shoulder until May 8, 2024, when Claimant signed a Form-N. \nTR  82-83,  85-90, Resp.  Ex.  2,  p.  31. Stephanie  Walker-Hynes,  Director  of  Nutrition  for \nRespondent/Employer, testified that she was not made aware, nor was it her job to be made aware \nof workers’ compensation issues except for specific incidents, i.e. ambulance being called, injury \nresulting in finger, or blood loss, etc. TR 56-57. Ms. Hynes testified that she was only made aware \nof the claim because months have passed since the incident occurred. TR 59-62. Ms. Hynes also \ntestified that Claimant was management and had a manager manual on the procedure for filing a \nworkers compensation claim. TR 67-69, 71, 73-77. She further testified that the school district \ndoes an annual review of the policies and procedures with management. Id. Despite this testimony \nthe Claimant stood firm on her claim that she reported her injury to Ms. McElroy. TR 99-102. But \ndid admit that she did not know that she had to make a workers’ compensation claim, not only with \nMs. McElroy, but also with Ms. Tracy Richardson, Ms. Hynes point of contact for workers \ncompensation claims involving Claimant. Id. \n\nLASTER H403137 \n \n6 \n \nAdjudication \nA. Whether Claimant sustained a compensable injury to her right shoulder by specific \nincident. \n \nUnder Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the body . . . \narising out of and in the course of employment and which requires medical services \nor results in disability or death.  An injury is “accidental” only if it is caused by a \nspecific incident and is identifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective findings.  \nArk. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings that \ncannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  The element “arising \nout of . . . [the] employment” relates to the causal connection between the claimant’s injury and \nhis or her employment.  City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987).  \nAn  injury arises  out  of  a  claimant’s  employment  “when  a  causal  connection  between  work \nconditions and the injury is apparent to the rational mind.”  Id. \n If  the  Claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements for establishing compensability, compensation must be denied.  Mikel v. Engineered \nSpecialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n Claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission.  White v. Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \n\nLASTER H403137 \n \n7 \n \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness but may accept and translate into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \nClaimant has not proven by the preponderance of the evidence that she has sustained a \ncompensable right shoulder injury that arose out of and in the course of her employment by specific \nincident. The Claimant testified that she spoke to her direct supervisor, Debra McElroy, about her \nalleged right shoulder injury in the presence of another co-worker on the date the incident occurred. \nTR 14-18, 31. However, the Claimant did not present this alleged witness to testify to those facts. \nId. Nor did Ms. McElroy recall any such conversation had ever taken place. TR 82-83, 85-90.  \nMoreover, my review of Claimant’s medical records show that she never mentioned her \nwork-related incident concerning the lunch bags to her healthcare providers. Rather, according to \nDr. O’Malley’s progress note dated the same date as her work-related incident, Claimant’s visit \nwas a “follow-up evaluation of her bilateral shoulder pain.” CL. Ex. 1, pp. 1-5. Dr. O’Malley \nfurther stated in his progress note that she claimed her right shoulder pain has “continued to \nworsen,” and that her right shoulder has been bothering her for the past two years. Id. Dr. O’Malley \nalso noted that the Claimant described “night pain” that would prevent her from sleeping, and that \nClaimant does “not recall any traumatic injury.” Id. I credit Dr. O’Malley’s progress note.  \nBased on Dr. O’Malley’s progress note the Claimant has been suffering from worsening \nright shoulder pain for the past few years. The pain has been of such a nature as to cause the \nClaimant to lose sleep even before the alleged work-related incident. The Claimant has the \nburden to prove a compensable work-related injury, and she has failed to meet that burden. I do \nnot believe Claimant’s right shoulder injury, a torn rotator cuff, was the result of the alleged \nFebruary 26, 2024, work-related incident. Thus why, I find that the Claimant has failed to prove \n\nLASTER H403137 \n \n8 \n \nby the preponderance of the evidence that she has sustained a compensable right shoulder injury \nby specific incident. Therefore, her claim must fail. Mikel v. Engineered Specialty Plastics, 56 Ark. \nApp. 126, 938 S.W.2d 876 (1997).  \nMISCELLANEOUS ISSUES \n Based on my previous finding of no compensability, the remaining issues regarding notice, \nreasonable and necessary medical treatment, temporary total disability benefits, and a controverted \nattorney’s fee are moot and will not be addressed in this opinion.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":14598,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H403137 BOBBIE LASTER, EMPLOYEE CLAIMANT LITTLE ROCK SCHOOL DISTRICT, EMPLOYER RESPONDENT AR. SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 6, 2025 Hearing before Administrative Law Judge, Steven Porch, on September 2, 2025, in Lit...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["shoulder","rotator cuff"],"fetchedAt":"2026-05-19T22:34:16.668Z"},{"id":"alj-H408141-2025-11-06","awccNumber":"H408141","decisionDate":"2025-11-06","decisionYear":2025,"opinionType":"alj","claimantName":"Emily Stewart","employerName":"Walmart Associates Inc","title":"STEWART VS. WALMART ASSOCIATES INC. AWCC# H408141 November 06, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/STEWART_EMILY_H408141_20251106.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STEWART_EMILY_H408141_20251106.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H408141 \n \nEMILY STEWART, EMPLOYEE   CLAIMANT \n \nWALMART ASSOCIATES INC., EMPLOYER RESPONDENT \n \nWALMART CLAIMS SERVICES/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED NOVEMBER 6, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents are represented by ERIN C. RAMBO, Attorney, Fort Smith,  Arkansas \n \nOPINION/ORDER \n \n On   December  18,  2024,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on \nDecember  1,  2024.   Claimant  was  represented  at  the  time  by Evelyn  E.  Brooks,  who  remains  her \nattorney of record.     \nOn July 11, 2025, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed her Form AR-C with the Commission, but she had not made a request \nfor a hearing in that time.  Claimant’s attorney advised the Commission she had no objection to the \nMotion to Dismiss and would not attend the hearing.  A hearing on respondent’s Motion to Dismiss \nwas scheduled for October 30, 2025.  Notice of the scheduled hearing was sent to claimant by certified \nmail  at  the  last known address in the Commission’s file.  The notice was returned unclaimed on \nOctober 2, 2025.    Claimant did not respond to respondent’s motion and did not appear in person at \nthe hearing on October 30, 2025.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nStewart-H408141 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby  is  granted.    This  dismissal  is  pursuant  to  Commission 11  C.A.R. § 25-110(d) (formerly \nCommission Rule 099.13) and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2291,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H408141 EMILY STEWART, EMPLOYEE CLAIMANT WALMART ASSOCIATES INC., EMPLOYER RESPONDENT WALMART CLAIMS SERVICES/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED NOVEMBER 6, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:34:18.743Z"},{"id":"alj-H303830-2025-11-05","awccNumber":"H303830","decisionDate":"2025-11-05","decisionYear":2025,"opinionType":"alj","claimantName":"Hollander Schlieder","employerName":"Dat Pooch Mobile Dog Grooming, LLC","title":"SCHLIEDER VS. DAT POOCH MOBILE DOG GROOMING, LLC AWCC# H303830 November 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Schlieder_Hollander_H303830_20251105.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Schlieder_Hollander_H303830_20251105.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303830 \n \nHOLLIANDER SCHLIEDER, \nEMPLOYEE                                                                                                              CLAIMANT \n \nDAT POOCH MOBILE DOG GROOMING, LLC, \nEMPLOYER                                                                                  RESPONDENT  \n \nTRUMBULL INSURANCE COMPANY, \nCARRIER                                                                                                             RESPONDENT \n \nTHE HARTFORD, \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED NOVEMBER 5, 2025 \n \nHearing conducted on Tuesday, September 30, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant is Pro Se, of Brighton, Colorado.  \n \nThe Respondents  were represented by Mr. Randy  Murphy,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non July 21, 2025.  A hearing on the motion was conducted on September 30, 2025, in Little Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as  a hospital  professional.  The  date \nfor  Claimant’s  alleged  injury  was  on October 26,   2022. She   reported   her injury   to \nRespondent/Employer on the same day as the incident. Admitted into evidence was Respondents’ \nExhibit 1, pleadings, and correspondence, consisting of 4 pages, and Commission Ex. 1, pleadings, \nand U.S. Mail return receipts, consisting of 5 pages, as discussed infra. \n\nSCHLIEDER, AWCC No. H303830 \n \n2 \n \nThe  record  reflects  on June 15, 2023,  a  Form  AR-C  was  filed  purporting  that  Claimant \nsustained  work-related  injury  when stepping  into  a  work  van  with  a  rotted-out first  step. The \nClaimant’s right foot sunk into the rotted-out step injuring her right ankle. On June 22, 2023, a \nForm AR-1 was filed with the Commission noting that the date of disability was on October 26, \n2022. On June 26, 2023, a Form AR-2 was filed accepting compensability, medical-only.   \nRespondents filed a Motion to Dismiss due to Claimant’s failure to prosecute her claim. \nThe Claimant was sent, on July 28, 2025, notice of the Motion to Dismiss, via certified and regular \nU.S.  Mail,  to  her last  known  address.  The  certified motion notice  was claimed  by  Claimant as \nnoted on the August 4, 2025, return receipt. This notice sent regular U.S. Mail did not return to the \nCommission. The  Claimant  did not respond  to  the  Motion,  in  writing,  as required. Thus,  in \naccordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice of \nRespondents’ Motion to Dismiss hearing date at her current address of record via the United States \nPostal  Service  (USPS), First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-\nClass Mail, on August 22, 2025. The certified notice was claimed as noted by the August 29, 2025, \nreturn receipt. Likewise,  the  hearing  notice  sent  regular  First-Class  was  not  returned  to  the \nCommission. The  hearing  took  place  on September  30,  2025.  And  as  mentioned  before,  the \nClaimant did not show up to the hearing. \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n\nSCHLIEDER, AWCC No. H303830 \n \n3 \n \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the September 30, \n2025, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was claimed by Claimant, per the return postal notice bearing the August 29, 2025, date. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed her Form \nAR-C on June 15, 2023. Since then, she has failed to request a bona fide hearing. Therefore, I do \nfind by the preponderance of the evidence that Claimant has failed to prosecute her claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \n \n\nSCHLIEDER, AWCC No. H303830 \n \n4 \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5861,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H303830 HOLLIANDER SCHLIEDER, EMPLOYEE CLAIMANT DAT POOCH MOBILE DOG GROOMING, LLC, EMPLOYER RESPONDENT TRUMBULL INSURANCE COMPANY, CARRIER RESPONDENT THE HARTFORD, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED NOVEMBER 5, 2025 Hearing conducted on Tuesd...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:34:14.592Z"},{"id":"alj-H300915-2025-11-04","awccNumber":"H300915","decisionDate":"2025-11-04","decisionYear":2025,"opinionType":"alj","claimantName":"Tiffany Edington","employerName":"Baxter County Regional Hospital, Inc","title":"EDINGTON VS. BAXTER COUNTY REGIONAL HOSPITAL, INC. AWCC# H300915 November 04, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/EDINGTON_TIFFANY_H300915_20251104.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EDINGTON_TIFFANY_H300915_20251104.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H300915 \n \nTIFFANY L. EDINGTON, EMPLOYEE     CLAIMANT \nBAXTER COUNTY REGIONAL HOSPITAL, \nINC., EMPLOYER               RESPONDENT \n \nRISK MANAGEMENT RESOURCES, TPA    RESPONDENT \n \nOPINION AND ORDER FILED NOVEMBER 4, 2025  \nThe Hearing before Administrative Law Judge James D. Kennedy was held in Little \nRock, Arkansas, on October 21, 2025. \nClaimant was represented by Frederick S. “Rick” Spencer. \nRespondents were represented by Carol Lockard Worley, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 21\nst\n day of October, 2025, in \nLittle  Rock,  Arkansas, on Respondent’s  Motion  to  Dismiss  for  failure  to  prosecute \npursuant  to  Ark. Code  Ann.  11-9 -702  and 11  C.A.R. 25 – 110(d) of  the rules  of  the \nArkansas Workers’ Compensation, formally  known  as  Rule  099.13. The Claimant  was \nrepresented by Frederick S. “Rick” Spencer and Claimant waived her right to appear. The \nRespondents were represented by Carol Lockard Worley of Little Rock, Arkansas, who \nintroduced 11 pages of documents that were admitted into the evidentiary record.  \n The documents included a First Report of Injury, which provided that the date of \nthe  injury  was  January  26,  2023.  An  AR-2  Form  provided  that  the  right  shoulder  was \ninjured and that the first day of disability was January 27, 2023. An AR-C Form was filed \non March 25, 2024, which provided that the claimant was injured while lifting an obese \npatient. A Motion to Dismiss was filed on or about August 26, 2025, contending that the \n\nTiffany L. Edington – H300915 \n2 \n \nClaimant had  failed  to  prosecute  her  claim  and  requested  that  an  Order  be  entered \ndismissing the claim.  \n The Claimant through her attorney initially objected to the Motion to Dismiss, but \nlater responded by letter that “Since the Respondent has agreed to allow the Claimant to \nhave a follow up appointment with Dr. Wesley Cox, the Claimant has no objection to the \nMotion to Dismiss Without Prejudice” and further notified the Commission by email that \nthe Claimant would not be attending the “MTD hearing.”  \n An  appropriate  notice  to  the  parties  was  provided  and  a hearing  was  held  on \nOctober 21, 2025, where the claimant waived her appearance. The Respondents were \nrepresented  by Carol Worley,  who  requested  that  the matter be  dismissed  pursuant  to \nArk.   Code   Ann.   11- 9-702   and   11   C.A.R.   25-110(d) of  the  Arkansas  Workers’ \nCompensation Commission. \nORDER \n Pursuant to the above statement of the case, as well as the documents entered \ninto the evidentiary record and statements by the Attorney for the Respondents, there is \nno alternative but to grant the Motion to Dismiss without prejudice pursuant to 11 CAR \n25-110(d) of the Arkansas Workers’ Compensation Commission and Ark. Code Ann. \n11-9-702. \n IT IS SO ORDERED. \n                \n      ____________________________ \n                JAMES D. KENNEDY \n                ADMINISTRATIVE LAW JUDGE","textLength":3082,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300915 TIFFANY L. EDINGTON, EMPLOYEE CLAIMANT BAXTER COUNTY REGIONAL HOSPITAL, INC., EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION AND ORDER FILED NOVEMBER 4, 2025 The Hearing before Administrative Law Judge James D. Kennedy was hel...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:34:10.422Z"},{"id":"alj-G807146-2025-11-04","awccNumber":"G807146","decisionDate":"2025-11-04","decisionYear":2025,"opinionType":"alj","claimantName":"Carl Smith","employerName":"City Of Little Rock","title":"SMITH VS. CITY OF LITTLE ROCK AWCC# G807146 November 04, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SMITH_CARL_G807146_20251104.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SMITH_CARL_G807146_20251104.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G807146 \n \nCARL SMITH, EMPLOYEE      CLAIMANT \nCITY OF LITTLE ROCK            RESPONDENT \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA      RESPONDENT \n \n OPINION AND ORDER FILED NOVEMBER 4, 2025 \nThe Hearing before Administrative Law Judge James D. Kennedy was held in \nLittle Rock, Arkansas, on September 16th, 2025. \nClaimant was pro se and failed to appear at the time of the hearing, but did in fact \narrive at the Commission, approximately two hours after the notified start time for \nthe hearing. \nRespondents were represented by Melissa Wood, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 16\nth\n day of September, 2025, \nin Little  Rock,  Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute \npursuant  to  Ark. Code  Ann.  11-9-702  and 11  C.A.R. 25 – 110(d) of  the rules  of  the \nArkansas Workers’ Compensation, formally  known  as  Rule  099.13. The Claimant  was \npro-se and failed to appear at the time of the hearing, but did appear at the Commission \napproximately  two hours  after  the  notified start time  for  the  hearing. The Respondents \nwere represented by Melissa Wood of Little Rock, Arkansas, who introduced 9 pages of \ndocuments which were  admitted  into  the evidentiary record. Upon  the  Claimants \nappearance at the Commission approximately two hours late, he was instructed to talk to \nthe  Legal  Advisors  Division  of  the  Commission. A  copy of  an  email from  the  Legal \nAdvisors,  which  is  “Blue  Backed” and  made part  of  this  Opinion, provides that the \n\nCarl Smith – G807146 \n2 \n \nClaimant contended he wished to pursue his claim. An additional email from the Claimant \ndated  September  17,  2025,  is  also “Blue Backed” and  made  part  of this  Opinion.  This \nemail from the Claimant contends that the hearing was originally set for Tuesday, August \n12, 2025, at 1:30 p.m. It went on to contend that “Following my surgery on September 10, \nI reached out to opposing counsel, Ms. Melissa Wood, to confirm the rescheduled date.  \nMs.  Wood  replied  by  email  on  September  10,  2025,  stating  the hearing  would  be  on \nTuesday, September 16, 2025. However, no time was provided in that correspondence.  \n“Since  the  prior  notice  had  listed  1:30  p.m. and the  new  date  fell  on  a  Tuesday,  I \nreasonably assumed the hearing would be at the same time.” The Claimant went on to \nstate that he appeared at 1:00 p.m. “prepared to proceed” and at this point was informed \nthat the hearing had occurred at 11:00 pm.   \n It is also noted that a previous Motion to Dismiss Hearing was held on November \n9, 2021, when the Claimant also failed to appear. An Opinion was issued in regard to this \nprevious Motion to Dismiss on December 5, 2021, where it was found that there was no \nalternative but to grant the Motion to Dismiss without Prejudice. The previous Motion to \nDismiss Opinion is also “Blue Backed” and made part of this Opinion.      \n At the time of the second Motion to Dismiss Hearing on September 16, 2025, the \nRespondents  entered nine pages  of  documents with  index into  the  record. The \ndocuments included a Form C dated October 23, 2018, that provided the Claimant was \nfighting a fire when the ceiling collapsed, resulting in the Claimant injuring his neck and \nknee on October 28, 2016. A First Report of Injury, provided that the date of the injury \nwas January 26, 2023. A Form 2 dated October 26, 2018, provided that the claim was a \nmedical only claim. A Form C filed December 13, 2023, provided that the Claimant was \n\nCarl Smith – G807146 \n3 \n \nperforming  firefighter  operations  and  the  ceiling  collapsed  on  him. The  documents \nentered into the record also included a letter from the Medical Cost Containment Division \nof the Arkansas Workers’ Compensation Commission, dated September 16, 2024, which \nprovided  that  the  Claimant  had  already  exercised  his  right  to  a  one-time change  of \nphysician  on  January  8,  2019, with  Dr. Mark  Miedema, that they  were  aware  that  Dr. \nMiedema had relocated to Northwest Arkansas, and that the Claimant had been referred \nto  his  colleague  Dr.  Stephen  Paulus,  where  the  Claimant  continued  treatment until \nDecember  12,  2023. The  letter  went  on to  provide  that  although  the  Claimant  was  not \nentitled  to  an  additional  change  of  physician, he  could  in  fact  request  a  hearing  for \nadditional medical care. (Emphasis added) A second Motion to Dismiss for Failure to \nProsecute was filed on June 17, 2025, and an appropriate notice to respond to the Motion \nto Dismiss was mailed to the Claimant on June 19, 2025, where the Claimant failed to \nrespond. An appropriate notice of hearing was provided to the Claimant on July 15, 2025, \nproviding Notice of a Hearing in Little Rock, Arkansas on September 16, 2025, at 11:00 \na.m. and  at  the  time  for  that hearing, the  claimant  failed  to  appear. The Respondents \nwere represented by Melissa Wood, who requested that the matter be dismissed pursuant \nto Ark.  Code  Ann.  11- 9-702  and  11  C.A.R.  25-110(d) of  the  Arkansas  Workers’ \nCompensation Commission.   \nORDER \n The Opinion in regard to this matter was delayed in being issued in an attempt to \nprovide additional time for the Claimant to take some additional action, but in reviewing \nthe filings in an attempt to “Blue Back” additional documents that might be appropriate in \nregard  to  the  outcome  of  this  matter,  the  only  pertinent  documents  applicable and \n\nCarl Smith – G807146 \n4 \n \navailable appear to be the ones described above.  It is clear the Claimant was serving the \npeople of Little Rock as a fire fighter, an extremely honorable profession. However, it is \nalso  clear  that  the  Claimant  has  the  burden  of  proof  in  regard  to  pursuing  his  claim.  \nPursuant to the above statement of the case, as well as the documents entered into the \nevidentiary record, statements by  the  Attorney  for  the  Respondents, and the “Blue \nBacked” documents, there is no  alternative  but  to  grant  the Motion  to  Dismiss without \nprejudice pursuant  to 11  CAR  25-110(d) of  the  Arkansas  Workers’  Compensation \nCommission and Ark. Code Ann. 11-9-702.   \n IT IS SO ORDERED. \n      ____________________________ \n               JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":6464,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G807146 CARL SMITH, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK RESPONDENT RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED NOVEMBER 4, 2025 The Hearing before Administrative Law Judge James D. Kennedy was held in Little Rock, A...","outcome":"dismissed","outcomeKeywords":["dismissed:4"],"injuryKeywords":["neck","knee","back"],"fetchedAt":"2026-05-19T22:34:12.508Z"},{"id":"alj-H404818-2025-11-03","awccNumber":"H404818","decisionDate":"2025-11-03","decisionYear":2025,"opinionType":"alj","claimantName":"Randell Weicht","employerName":"Quality Trucking Of Little Rock","title":"WEICHT VS. QUALITY TRUCKING OF LITTLE ROCK AWCC# H404818 November 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WEICHT_RANDELL_H404818_20251103.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WEICHT_RANDELL_H404818_20251103.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404818 \n \nRANDELL WEICHT, Employee CLAIMANT \n \nQUALITY TRUCKING OF LITTLE ROCK, Employer RESPONDENT \n \nBROADSPIRE SERVICES, INC., Carrier RESPONDENT \n \n \n \n OPINION FILED NOVEMBER 3, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant unrepresented and appearing pro se. \n \nRespondents  represented  by ZACHARY  F.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On September  24,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at \nSpringdale, Arkansas.   A pre-hearing conference was conducted on July 23, 2025, and \na pre-hearing  order  was  filed  on  that  same date. A  copy  of  the  Pre-hearing  Order  has \nbeen  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.    The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  the \nwithin claim. \n 2. The employee/employer/carrier relationship existed among the parties on July \n16, 2024. \n\nWeicht – H404818 \n \n-2- \nThe issues to be litigated at the forthcoming hearing are as follows: \n1. Compensability of injuries to right knee and right shoulder on July 16, 2024. \n2. Payment of medical. \n3. Temporary total disability benefits from date last paid through a date yet to be \ndetermined. \n4. Compensation rates. \n5. Cost of deposition. \nPrior to the hearing, respondent also added as an issue its entitlement to the cost \nof filing a Motion to Dismiss. \nThe  claimant  contends  he  injured  his  right  knee  and  right  shoulder  on  July  16, \n2025. He requests payment of related medical and temporary total disability benefits. \nThe   respondents   contend   the   claimant   did   not   experience   an   accident. \nAlternatively,  the  claimant’s  accident  did  not  injure  the  claimant  as  alleged.  The \nclaimant’s injuries are preexisting. The claimant owes costs and fees for the deposition \ncancelled by him after misrepresenting that the deposition was not necessary. \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n \n \n\nWeicht – H404818 \n \n-3- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on July 23, 2025, and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n 2. Claimant  has  met  his  burden  of  proving  by  a  preponderance  of  the  evidence \nthat  he  suffered  a  compensable  injury  to  his  right  knee  and  right  shoulder  on  July  16, \n2024. \n 3.  Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injuries. \n 4.  Claimant  is  entitled  to  additional  temporary  total  disability  benefits  from  the \ndate  last  paid,  September  10,  2024,  through  a  date  yet  to  be  determined  at  the \npreviously paid compensation rate. \n 5. Respondent has failed to prove its entitlement to costs for the deposition or for \nfiling the Motion to Dismiss in this claim. \n \nFACTUAL BACKGROUND \n The  claimant  is  a  57-year-old  man  who  began  working  for  respondent in  May \n2024, driving a dump truck. Claimant testified that on July 16, 2024, he had weighed his \ntruck  on  a  scale and  had  pulled  his  truck  down  to  the  scale  house  to  go  in  to  get  his \nscale  ticket.  As  he  opened  the  door  of  his  truck  to  step  out,  he  lost  his  footing  on  the \nsteps of the truck and fell. Although he landed on his feet, his right elbow was caught as \nit hit the door on the way down causing an injury to his right shoulder. He also testified \nthat he injured his right knee as a result of the fall.  \n\nWeicht – H404818 \n \n-4- \n Claimant  testified  that  after  this  incident  he  went  to  the  scale  house,  got  his \nticket,  and  returned  to  his  truck.  He  then  reported  the  incident  to  his  supervisor  and \nupon returning to the respondent’s yard, he completed an accident report.  \n Medical  records  indicate  that  claimant  received  treatment  from  Dr.  Robert \nMcLeod  at  Ozark  Orthopedics  on  August  8,  2024.  Dr.  McLeod  indicated  that  claimant \nhad  a  partial-thickness  rotator  cuff  tear  and  a  right  medial  meniscus  tear.  Dr.  McLeod \nindicated that an arthroscopic procedure might be necessary on the claimant’s right \nknee  and  a  rotator  cuff  repair.  However,  on  August  8,  2024,  Dr.  McLeod  provided \ntreatment in the form of injections to claimant’s right knee and right shoulder.  \n Claimant also testified that he has treated with Dr. Dougherty and has undergone \ntwo knee surgeries and two shoulder surgeries.  \n The  respondent  originally  accepted  this  claim  as  compensable  and  paid  some \ncompensation benefits; including, temporary total disability benefits through September \n10,  2024.  Respondent  subsequently  controverted  this  claim, and  claimant  requested a \nhearing  contending  that  he  suffered  compensable  injuries  to  his  right  knee  and  right \nshoulder  on  July  16,  2024.  He  seeks  payment  of  medical  treatment,  temporary  total \ndisability  benefits  from  the  date  last  paid  through  a  date  yet  to  be  determined. \nRespondent has raised as an issue its entitlement to payment for costs of a deposition \nand for the filing of a Motion to Dismiss. \n \n \n \n \n\nWeicht – H404818 \n \n-5- \nADJUDICATION \n Claimant  contends  that  he  suffered  compensable  injuries  to  his  right  knee  and \nright  shoulder  when  he  fell  while  getting  out  of  his  dump  truck  on  July  16,  2024. \nClaimant’s claim is for a specific injury, identifiable by time and place of occurrence. \nIn order to prove a compensable injury as the result of a specific incident that is \nidentifiable   by   time   and   place   of   occurrence,   a   claimant   must   establish   by   a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has met his burden of proof. \n First, I find that claimant has proven that he suffered an injury which arose out of \nand in the course of his employment with respondent and that the injury was caused by \na specific incident identifiable by time and place of occurrence. Claimant testified that on \nJuly  16,  2024,  he had  weighed  his dump truck  on a  scale  and  had  pulled  down  to the \nscale house to go into the scale house and get his weigh ticket. As he opened the door \nof his truck to step out, he lost his footing on the steps of the truck and fell, landing on \nhis feet but in the process, injuring his right shoulder and right knee.  \n\nWeicht – H404818 \n \n-6- \n Following  this  incident,  claimant  reported  the  injury  to  his  supervisor  and \ncompleted an accident report. Testifying at the hearing was claimant’s supervisor, Slade \nZeigler. Zeigler testified that he was aware of the incident on July 16, 2024. \n I note that the respondent submitted into evidence a video which was taken from \ninside claimant’s truck cab on July 16, 2024. Although that video does not show the \nclaimant  falling  as  he  gets  out  of  his  truck,  the  video  contains audio shortly  after \nclaimant stepped out of his truck, which sounds like it could be a fall.  \n Also appearing at the hearing was Stephanie Stallsworth, an individual who had \nworked with claimant at a prior job. On July 16, 2024, as claimant was driving his truck \noff of the weigh scale, claimant and Stallsworth were having a telephone conversation. \nWhen claimant stopped his truck to get out in order to go into the scale house and get \nhis  ticket,  he  simply  put  his  headset  down  but  did  not  hang  up  on the phone  call  with \nStallsworth. Stallsworth testified that the following transpired.  \nAnd  all  of  the  sudden  I  heard  thunk – thunk,  and  I  was \nwaiting for you to get back on the phone and I said, “Randell, \nRandell, are you ok?” And you got back in there in the truck \nafter  a  few  minutes,  probably  two  or  three  minutes  had \npassed,  and  you  put  your  headset  back  on  and  you  said, \n“You’re  never  gonna  believe  what  happened.”  I  was  like, \n“Did you just fall out of the truck, because I heard thunks?” \nAnd you said, “Yeah, I sure did.” And you said you scratched \nup  your  elbow,  you  hurt  your  back,  you  hurt  your  shoulder, \nyour whole body was hurting. \n \n Based upon claimant’s testimony which I find to be credible; the fact that claimant \nreported  the accident to  his  supervisor  and  completed  an  accident  report;  the  video \nwhich contains a sound which appears to be claimant falling as he gets out of the truck; \nand Stallsworth’s testimony that it was her impression that claimant had fallen, I find that \n\nWeicht – H404818 \n \n-7- \nthat claimant has met his burden of proving by a preponderance of the evidence that his \ninjury  arose  out  of  and  in  the  course  his  employment  with  respondent  and  that  it  was \ncaused by a specific incident identifiable by time and place of occurrence. \n With  respect  to  this  issue,  I  note  that  respondent  introduced  into  evidence  text \nmessages  between  claimant  and  Zeigler  regarding  claimant  having  been  side-swiped \nby a car that swerved to miss a deer and the fact that at one point claimant was moving \nsome furniture. Both of these events occurred before July 16, 2024. However, there is \nno  credible  evidence  that  claimant  injured  either  his  right  knee  or  right  shoulder  as  a \nresult of these incidents. Claimant denied having been injured and the medical does not \nmention  either  of  these  incidents.  Therefore,  I  find  no  credible  evidence  that  claimant \ninjured his right knee or right shoulder while moving furniture or as the result of a motor \nvehicle accident. \n I  also  find  that  claimant  has  proven  that  his  injury  caused  internal  or  external \nharm to his body that required medical services or resulted in disability and that he has \noffered  medical  evidence  supported  by  objective  findings  establishing  an  injury.  As \npreviously  noted,  claimant  was  treated  for  his  right  knee  and  right  shoulder  by  Dr. \nMcLeod on August 8, 2024. According to Dr. McLeod claimant had a torn rotator cuff as \nwell  as  a  right  medial  meniscus  tear.  These  are  objective  findings.  Dr.  McLeod  further \nindicated  that  if  conservative  treatment  was  not  successful,  claimant  might  need  an \narthroscopic procedure on his right knee and a rotator cuff repair. However, on August \n8, 2024, Dr. McLeod simply provided claimant with injections in his right knee and right \nshoulder. Based  upon  this  evidence,  I  find  that  claimant  has  satisfied  the  remaining \nelements of compensability.  \n\nWeicht – H404818 \n \n-8- \n In   summary,   I   find   that   claimant   has   met   his   burden   of   proving   by   a \npreponderance of the evidence that he suffered a compensable injury to his right knee \nand right shoulder as a result of a fall while getting out of his truck on July 16, 2024. \n Having  found  that  claimant  suffered  compensable  injuries  to  his  right  knee  and \nright  shoulder,  I  find  that  respondent  is  liable  for  payment  of  all  reasonable  and \nnecessary  medical  treatment  provided  in  connection  with  claimant’s  compensable \ninjuries.  \n The next issue for consideration involves claimant’s request for temporary total \ndisability benefits. The injury to claimant’s right shoulder is an unscheduled  injury  for \nwhich  claimant  would  have  the  burden  of  proving  that  he  remained  within  his  healing \nperiod and that he suffered a total incapacity to earn wages. Arkansas State Highway & \nTransportation  Dept.  v.  Breshears,  272  Ark.  244,  613  S.W.  2d  392  (1981).    However, \nthe injury to claimant’s right knee is a scheduled injury. An employee who has suffered \na  scheduled  injury  is  entitled  to  receive  temporary  total  disability  benefits  during  the \nhealing  period  or  until  they  return  to  work  regardless  of  whether  they  are  totally \nincapacitated  from  earning  wages. Wheeler  Construction  Company  v.  Armstrong,  73 \nArk. App. 146, 41 S.W. 3d 822 (2001).  \n Claimant  introduced  into  evidence  payment  records  indicating  that  he  was  paid \ntemporary  total  disability  benefits  from  August  28,  2024,  through  September  10, 2024. \nAt that point, respondent apparently chose to controvert the claim.  \n As previously noted, claimant testified that he subsequently came under the care \nof Dr. Dougherty and has undergone two surgical procedures on his right knee and two \n\nWeicht – H404818 \n \n-9- \nsurgical  procedures on  his  right  shoulder.  Claimant  did not  submit  into  evidence  these \nmedical records from Dr. Dougherty nor these surgical procedure records. \n Claimant did testify that he has not worked since the date of his injury and that he \nis  not  currently  capable  of  working  because  he  cannot  drive  his  truck  and  take  his \nmedication.  \n When  claimant  was  seen  by  Dr.  McLeod  on  August  8,  2024,  Dr.  McLeod  gave \nclaimant  a  20  lb.  push,  pull,  lift,  carry  limit  of  5  lbs.  over  head  with  no  squatting  or \nkneeling. \n It should also be noted at this point that claimant submitted into evidence medical \nrecords  from  Wesley  McGehee,  a  physician’s  assistant  at  Ozark  Orthopedic, dated \nSeptember  9,  2024.  In  that  report,  and  in  a  return  to  work  note  of  that  same  date, \ncertain limitations were placed upon claimant’s ability to return to work. However, I note \nthat this evaluation was for complaints of pain involving claimant’s neck, mid back, and \nlow  back.  Although  at  one  point,  claimant  originally  contended  that  he  had  injuries  to \nthose body parts as a result of the fall, claimant did not pursue compensability of those \nbody parts at the hearing. Therefore, any limitations placed upon the claimant for those \nconditions  cannot  serve  as  the  basis  for  the  awardance  of  temporary  total  disability \nbenefits. \n I  note that  at  the  hearing  respondent  showed  a  video  taken  by  Zeigler  on  his \nphone as he drove past claimant’s home. The video showed claimant on a ladder and \nusing a leaf blower to remove leaves from his gutter. Claimant testified that leaves in his \ngutter  were  causing water  to  leak  into  his  house  through  a  window.  Claimant  testified \nthat  the  leaf  blower  was  within  his  lifting  restrictions  and  that  he  had  informed  his \n\nWeicht – H404818 \n \n-10- \ntreating physician about the need to get on a ladder to clean out this one area of leaves. \nZeigler testified that presumably, claimant was moving the ladder from place to place to \nblow out leaves. \nQ Presumably,  he  was moving  this  ladder  from  location \nto location and blowing out more leaves as the gutter keeps \ngoing? \n \nA Yes, sir. \n \n This is clearly an assumption since the video does not show claimant moving the \nladder from location to location and Zeigler did not testify that he saw claimant moving \nthe ladder from location to location. \n In short, I find that claimant has met his burden of proving by a preponderance of \nthe   evidence   that   he   is   entitled   to   continued   temporary   total   disability   benefits \nsubsequent to September 10, 2024. Dr. McLeod’s medical report of that date indicates \nthat  claimant  would  need  additional  medical treatment,  and,  in  fact,  he  prescribed \nadditional medical treatment in the form of physical therapy. According to claimant’s \ntestimony, he  subsequently  came under  the care  of  Dr.  Dougherty and underwent two \nsurgical procedures on his right knee and two surgical procedures on his right shoulder. \nThe injury to claimant’s right knee is a scheduled injury and claimant is not required to \nprove that he is totally incapacitated from earning wages, only that he has not returned \nto work. Claimant testified that he has not returned to work and that he could not drive \nhis truck at the current time due to the medication he is currently taking. Therefore, I find \nthat  claimant  is  entitled  to  temporary  total  disability  benefits  beginning  September  10, \n2024, and continuing through a date yet to be determined. These benefits are to be paid \nat the previously accepted temporary total disability rate. \n\nWeicht – H404818 \n \n-11- \n The final issue for consideration involves respondent’s request for the cost of \nattending a deposition and for filing a Motion to Dismiss. Claimant’s deposition was \nscheduled in this case for November 15, 2024. At that deposition, claimant indicated on \nthe record that he did not wish to proceed with the deposition, and he was informed this \nwould result in the respondent filing a Motion to Dismiss. Respondent did, in fact, file a \nMotion  to  Dismiss  and  claimant  objected  to  dismissal  of  his  claim.  At  the  hearing, \nclaimant  testified  that  it  was  his  understanding  that  he  did  not  have  to  undergo  the \ndeposition  since  it  had  not  been  required  by  the  Commission  but  simply  done  at  the \nrequest  of  the  respondent.  Obviously,  this  was  a  misunderstanding.  However,  to  the \nextent  that  claimant  is  responsible  for  the  cancellation  of  the  deposition  and  for  the \nsubsequent  filing  of  the  Motion  to  Dismiss,  I  note  that  respondent  has  not  offered  any \nspecific  amount  of  cost  requested.  Absent  specific  dollar  amounts,  even  if  costs  were \njustified, no costs could be awarded without those costs having been proven. Therefore, \nunder the circumstances, I find that respondent is not entitled to payment of any costs \nfor the deposition or the filing of the Motion to Dismiss.  \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe suffered a compensable injury to his right knee and right shoulder on July 16, 2024. \nRespondent  is  responsible  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injuries. Claimant is also \nentitled  to  temporary  total  disability  benefits  beginning  September  10,  2024,  and \ncontinuing through a date yet to be determined at the rate previously accepted and paid \n\nWeicht – H404818 \n \n-12- \nby the respondent. Respondent is not entitled to payment for costs for the deposition or \nthe filing of the Motion to Dismiss.  \nRespondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $469.60. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":19826,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404818 RANDELL WEICHT, Employee CLAIMANT QUALITY TRUCKING OF LITTLE ROCK, Employer RESPONDENT BROADSPIRE SERVICES, INC., Carrier RESPONDENT OPINION FILED NOVEMBER 3, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington Co...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3","denied:2"],"injuryKeywords":["knee","shoulder","back","rotator cuff","neck"],"fetchedAt":"2026-05-19T22:34:06.230Z"},{"id":"alj-H403539-2025-11-03","awccNumber":"H403539","decisionDate":"2025-11-03","decisionYear":2025,"opinionType":"alj","claimantName":"David Wylie","employerName":"Potlatch Corporation","title":"WYLIE VS. POTLATCH CORPORATION AWCC# H403539 November 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WYLIE_DAVID_H403539_20251103.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WYLIE_DAVID_H403539_20251103.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                             WCC NO.: H403539 \n  \nDAVID WYLIE, EMPLOYEE CLAIMANT \n \nPOTLATCH CORPORATION,   \nEMPLOYER                                                                                                            RESPONDENT    \n                                        \nSENTRY CASUALTY COMPANY,  \nCARRIER/TPA                                                                                                          RESPONDENT  \n \n \nOPINION FILED NOVEMBER 3, 2025 \n             \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n \nClaimant represented by the Honorable Gregory R. Giles, Attorney at Law, Texarkana, Arkansas. \n \nRespondents represented  by the  Honorable Jarrod S. Parrish, Attorney at  Law,  Little  Rock, \nArkansas. \n \n \n          STATEMENT OF THE CASE \nOn August  6,  2025, the  above-captioned  claim  came  on  for a hearing in El  Dorado, \nArkansas.  Previously,  a pre-hearing  telephone  conference  was  held in  this  matter on May  28, \n2025.  A Pre-hearing Order was entered that same day pursuant to the telephone conference.  Said \norder was admitted into evidence along with the parties’ pre-hearing information filings without \nobjection as Commission’s Exhibit 1. \nStipulations \nDuring the pre-hearing telephone conference, and/or at the hearing, the parties agreed to \nthe following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \n         claim. \n\nWylie - H403539 \n2 \n \n 2. The employee-employer-insurance carrier relationship existed at all relevant times, \n     \n  including November 4, 2023, when the claimant allegedly sustained a compensable \n   \n             injury to his lower back.   \n \n3.  At the beginning of the hearing, the parties agreed to withdraw their stipulation \n  \n pertaining to the claimant’s average weekly wage.  \n       \n4.        The claimant reached maximum medical improvement for his back condition on  \n   \n           April 24, 2024.  \n \n5.        The claimant received short-term disability for a period of time.  The respondents    \n \n           are entitled to a credit in the event the claimant is awarded indemnity benefits.   \n       \n6.        The respondents have controverted this claim in its entirety. \n \n7.        Therefore, all issues not litigated herein are reserved under the Arkansas Workers’  \n \n           Compensation Act.  \nIssues \n The parties agreed to litigate the following issues: \n1. Whether the claimant sustained a compensable specific incident injury to his low  \n \nback November 4, 2023, while working for the respondent-employer. \n \n 2. Whether the claimant failed to give his employer notice of his alleged injury until \n                         \n  May 17, 2024. \n \n3. Whether the claimant is entitled to temporary total disability/TTD compensation  \n \n beginning on November 5, 2023, and continuing until April 24, 2024. \n \n4. Whether the claimant’s medical treatment of record is reasonable and necessary  \n  \n medical treatment for his alleged back injury. \n \n5. Whether the claimant sustained an 8%\n1\n impairment rating for his back condition. \n \n \n1\n At the time of the hearing, the claimant’s attorney changed his request from a 10% impairment rating to \nan 8% rating.   \n\nWylie - H403539 \n3 \n \n6. Whether the claimant’s attorney is entitled to a controverted attorney’s fee. \n \nContentions \n \n The claimant’s and respondents’ contentions are set out in their response to the Pre-hearing \nQuestionnaire.  Said contentions are as follows: \nClaimant: \nThe claimant contends that the medical treatment received following November 24, 2023, \nwas reasonable, necessary, and related such that respondents should be ordered to pay for same. \nThe  claimant  contends  that  he  is  entitled  to  temporary  total  disability  benefits  from \nNovember 5, 2023, through May 24, 2024.  \nAlso,  the  claimant  contends  he  is  entitled  to  an  impairment  rating  associated  with  the \nherniated disc which required surgery and resulted in an impairment rating of at least ten (10%) \npercent pursuant to the AMA Guides, Fourth Edition.  \nThe claimant contends  that  the respondents should be ordered to pay attorney’s fees as \nprovided by law. \nAt the beginning of the hearing, the claimant contended that the respondents had sufficient \nnotice of the claimant’s injury. \nRespondents: \n Claimant  did  not  suffer  a  compensable  injury  on  November  4,  2023,  while  working  for \nPotlatchdeltic.  In the event compensability is proven, the respondents cannot be responsible for \nbenefits before receiving proper notice of a work-related injury on May 17, 2024.  The claimant is \nnot entitled to temporary total disability benefits because he returned to work before giving notice \nof a work-related injury.  The respondents are entitled to a dollar-for-dollar credit for the short-\n\nWylie - H403539 \n4 \n \nterm disability benefits the claimant received. \n                   FINDINGS OF FACT AND CONCLUSIONS OF LAW \nAfter  reviewing  the record  as  a  whole, including  the  medical  reports, the documentary \nevidence, and other matters properly before the Commission, and after having had an opportunity \nto listen to the testimony of the witnesses and observe their demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law in  accordance  with  Ark.  Code  Ann. §11-9-704  (Repl. \n2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.     The proposed stipulations set forth above are reasonable and hereby accepted. \n \n          3.         The claimant proved by a preponderance of the credible evidence that he sustained     \n          \n                       a compensable injury to his low back on November 4, 2023, during and in the course\n             \n                       of his employment with the respondent employer. \n  \n          4.          The claimant gave management proper notice of his compensable injury on the  \n   \n            morning of November 4, 2023, when he contacted his supervisor. \n \n          5.          The claimant proved by a preponderance of the evidence that all of the medical  \n  \n                       treatment of record was reasonably necessary treatment in connection with the  \n  \n                      compensable back injury received by him on November 4, 2023. \n \n         6.             The claimant proved by a preponderance of the evidence his entitlement to temporary  \n               \n                       total disability compensation from November 5, 2023, through April 24, 2024. \n \n         7.          The claimant proved his entitlement to an 8% anatomical impairment rating for  \n    \n                       his lower back injury. \n \n         8.           The parties stipulated that the respondents have controverted this claim in its entirety. \n   \n                      Therefore, the claimant’s attorney is entitled to a controverted attorney’s fee. \n \n\nWylie - H403539 \n5 \n \n         9.          All issues not litigated herein or addressed in this Opinion are reserved under the Act.    \n                \nSummary of Evidence \nThe hearing witnesses were the claimant, Debra Sue Wylie, Tracey Sutherland, and Josh \nHarris.  \n            The  record  consists  of  the  hearing  transcript  of August  6, 2025, and the exhibits held \ntherein.  In addition to the Pre-hearing Order discussed above, the exhibits admitted into evidence \nin this case were Claimant’s Exhibit 1, an abstract of the medical records  consisting of five pages; \nClaimant’s Exhibit 2 includes one cover page and a compilation of his medical records consisting \nof 62 numbered pages; Respondents’ Exhibit l, another compilation of medical records consisting \nof 18 numbered pages; and Respondents’ Exhibit 2, consisting of seven pages of non-medicals.      \nTestimony \n The claimant is now 63 years of age.  Instead of graduating from high school, the claimant \nobtained  his  GED.   Subsequently,  he went  on  to complete four  years  of  training  in  a welding \nprogram.   The claimant has 14 different various certifications associated with his welding skills.  \nHe began working for Potlatch in November 2020.  Initially, the claimant went to work for Potlatch \nas a floor sweeper.  He held that position for seven months and then transitioned to the kiln area \nand began working as a forklift driver. \n According  to  the claimant,  the  forklift  truck  he  worked  with is  probably the  size  of  a \nPeterbilt truck  and weighs approximately 36,000 pounds.    The claimant described the  truck  as \nbeing like a large diesel-type piece of equipment.  He testified that the forklift is 10 feet wide and \n25 feet long.   \n The claimant explained: \n  Q.  All right.  What was the purpose of that forklift?  What were you moving?   \n                        What were you transporting at Potlatch, typically, in your job? \n\nWylie - H403539 \n6 \n \n \n  A.  I loaded the kiln and unloaded the kiln.  So, we put the boards on......The  \n  units of boards on little train cars and run them through a box that dries the wood,  \n                        and it goes in this door and my friend on the other end of the building sends me one \n  from his side, so we pass them to each other, and I unload the dry stuff from his \n  side.  He unloads the dry stuff from my side.  We do that in two different boxes.   \n  But my job was to unload and load both. \n \n At  the  time  of the claimant’s injury, his hourly  rate of  pay was  $28.50.    The claimant \nworked the night shift.  His normal working hours were from 5:00 p.m. until 5:00 a.m.  According \nto the claimant, his shifts were normally twelve-hour shifts.  His supervisor was Tracey Sutherland.  \nHowever,  Mr.  Sutherland  worked on the  day  shift.   According  to  the  claimant, Mr.  Sutherland \ncommunicated with them by staying later to talk to them if he needed to discuss something with \nthem.  The claimant explained, “... Other than that, we’re grown men.  We just go to work.  We \nknow what we’re supposed to do, we know when we’re to be there.” \n He confirmed that office personnel were not present during the night shift.  The claimant \nfurther confirmed that at the time of his alleged injury that overall, his general health was good.  \nHe  testified  that  prior  to  going  to  work  for  Potlatch  in  2020,  he had worked  as  a  welder  for 30 \nyears.    The  claimant  retired  from welding  while living in  California.   However,  the claimant \ntestified  that  he returned to the workforce because  he  had  to  pay  off  a cancer bill totaling \n$40,000.00.   According  to  the  claimant,  he was  diagnosed  with  colon  cancer, for which  he \nunderwent surgery and got a clean bill of health.  Per the claimant, seven days out of the hospital, \nhe was cancer free.    \n Upon re-entering the workforce, the claimant worked at SeaArk for two years, and then he \nbegan working for Potlatch.  The claimant denied taking any medications on a regular basis prior \nto November 4, 2023.  He further denied any prior symptoms or problems with his back or legs.  \nAs far back as the claimant could recall, he has never injured his back.  The claimant confirmed \n\nWylie - H403539 \n7 \n \nthat during his deposition testimony, he stated that around the age of 20 or 30, he pulled a muscle \nin his back.  However, he denied having undergone an MRI or x-rays to his back prior to November \n4, 2023.  Nor has the claimant ever sought medical treatment from a chiropractor for his back.   \n On  the  night  of  the claimant’s  alleged  injury,  he  was assigned  to  work in  the  kiln \ndepartment.   At  the  beginning  of  the claimant’s shift, a coworker fainted due  to  blood  pressure \nproblems and was taken away by ambulance.  As a result, the claimant was given some different \ninstructions as  to  what  his employment  duties  were to  be  for  that night.   These directives were \ngiven  to the  claimant by  Ulysses, the  manager  of the  planer  mill (which  was  the  building next \ndoor).  According  to  the claimant,  Ulysses instructed him  to  drive  for  the  sawmill  that  night \nbecause  he was  the low man  on seniority of  the  three  drivers  there  that  night.  The claimant’s \nposition was classified by a union contract.   \n He explained what the job required him to do that night: \n  A.  When they make the new wood, you pick it up, mark what it is, put the  \n  four bys on top and then drive it out to the green yard and drop it off. \n \n  Q.  And when you say you pick it up, you’re talking about with your equipment? \n \n  A. With the forklift, yeah.  You have the machine pick it up, set it down, mark  \n  what it is and then take it up to the green yard and put it in the pile for everybody  \n  else. \n \n The claimant confirmed that he was transporting wood from one area of the mill to another.  \nHe confirmed that the distance he had to travel was anywhere from an eighth of a mile to three-\neighths of  a  mile  to  the  far  end  of  the  yard.  That  particular  night,  the claimant  worked  in  the \nsawmill from 6:00 p.m. to 5:00 a.m., which amounted to an 11-hour shift.  During the claimant’s \nshift, he transported from 80 to 90 loads, as he went back and forth that night.  He described the \nroad that he had to travel on with this piece of equipment, as being “some concrete, some gravel, \nsome dirt.”  The claimant testified that the transitions over the road were extremely rough.   \n\nWylie - H403539 \n8 \n \n Specifically, the claimant testified: \n  Q.  As you were transporting this product back and forth across this road that \n  evening, do you recall a specific event occurring where you complained of or \n  felt problems in your back? \n \n  A.  Yes, sir. \n \n  Q. Tell us about that. \n \n  A.  About 11:30, I was coming out of the sawmill, and the forklift was ten feet \n                        wide.  The road is only so wide, and the wood I’m carrying is twenty feet wide, so  \n  really you can’t go over here to get around some stuff.  You have to stay right here,  \n  so you have to run over whatever’s in the road, the potholes are in the road, because    \n  we ride over them eighty times a night. \n \n  Q.  All right.  So, you’re describing in the middle of the road, you just said the \n  word pothole. \n \n  A.  The potholes are in the road. \n \n  Q.  All right. \n \n  A.  We can’t really avoid them for the width of the lumber.  You can’t hit   \n  anything with this fork (forklift), or you get in major trouble. \n \n Upon further questioning, the claimant confirmed that the width of the wood is much wider \nthan the width of the forklift, which causes the wood to hang out from the forklift.  The claimant \ntestified that the pothole he hit was about “three feet around and eight inches deep.”  According to \nthe claimant, it was concrete, so it did not drop off and come back up.  Instead, the claimant further \ntestified that it went straight down and then straight back up.  He testified that the concrete was \n“broken  out” and  there  was a  piece of concrete missing  in  the  road.   The claimant’s incident \noccurred around 11:30 that night.  After his incident, the claimant was extremely uncomfortable \nin his right hip and lower back.  He agreed that he was in pain after the hitting the pothole.  The \nclaimant testified that he continued working because they were already one man down. \n\nWylie - H403539 \n9 \n \n According to the claimant, he was extremely sore when he left work around 5:00 a.m. that \nmorning.  The claimant testified that he sent Tracey (Sutherland) a text on Saturday, November 4, \n2023.  He was asked to read the text aloud, which states, “Morning, sir.  Drove for the sawmill last \nnight.  Woke up, my back locked up on me, right leg numb.”  He sent this text at 1:06 p.m.  The \nclaimant testified that he typically went to sleep at 6:00 a.m., and would get up roughly around \n1:30 p.m.  However, Mr. Sutherland did not respond at once.  Per the claimant, he then sent another \ntext saying that he could not move particularly good.  Mr. Sutherland responded to his second text \nstating that he would call him in about 15 minutes.   \n The claimant explained: \n  Q.  Can you tell us or recall, as best you can, what you and Tracey...... What you  \n  and Mr. Sutherland talked about in that conversation? \n \n        A. Hitting the pothole, my back went pop.  I need to go to the doctor, I guess,              \n  because now my whole side is numb.  I’m not going to be able to make it to work.   \n \n At that time, the claimant testified that “he was humped over like an old man.” According \nto the claimant, his entire right side was numb, including his leg, arm and everything on that side \nwas numb.  The claimant testified that he could hardly pick up his legs and feet at that point.  He \nagreed  that  he  was  in  severe  pain.    The claimant  denied  that there  was  any  conversation about \ncompleting  workers’  compensation  paperwork.   Nor  did Mr.  Sutherland give  the claimant \ninstructions on going to the doctor.  \n He  confirmed  that  he  saw his  primary  care  physician,  Dr.\n2\n Jesse  Bone,  on  November  7, \n2023.  After that appointment, the claimant sent Mr. Sutherland another text letting him know that \nhe needed to be off for another couple of days for the swelling to go down.   \n \n \n2\nAlthough Jesse Bone is referred to as Dr. Bone throughout the claimant’s attorney \nconfirmed, and the medical records show that Bone is in fact an APRN. \n \n\nWylie - H403539 \n10 \n \n Next,  the  claimant  was  questioned about Bone’s  medical  notes from  November  7.  \nSpecifically, the claimant denied having told Dr. Bone his pain started five days ago.  He further \ndenied having any problems before he went to work on November 4, 2023.  The claimant agreed \nthat it is not a correct statement that his pain started five days before he saw Dr. Bone.  He denied \ntelling Bone he saw a chiropractor for two visits, with no improvement.  In fact, the claimant stated \nthat  he  has  never  seen  a  chiropractor in  his  life.    However,  he explained that  his  wife  saw  a \nchiropractor after her stroke.  Although Bone noted that the claimant was driving a forklift at work \nand reported that the roads were very rough, he goes on to note that the claimant denied any fall \nor  injury.   The  claimant agreed that  he  did  not fall  out  of the  forklift.   However,  the claimant \ndisagreed with the statement of him having denied an injury because he was there because his back \nwas hurting.  He testified that he told Bone the same thing, which he was driving a forklift at work \nand hit a pothole and his back “went pop.”   \n According  to  the claimant,  no  one  would  believe  him  until  he  saw  Dr.  Simpson.   The \nclaimant confirmed that he told him the same story of hitting the pothole.  Dr. Simpson gave the \nclaimant some hydrocodone pills and muscle relaxers, but he did not recall getting a shot.  He also \npulled  the claimant  out  of  service.   According  to  the claimant,  he  gave the  note  to either Mr. \nSutherland or Michelle, who works in the front office.   \n At  that  point, Michelle  gave  the claimant the FMLA phone  number  for  him  to  call.  \nHowever, she did not give him any paperwork to complete.  The claimant testified that he had a \nphone interview with a lady from Arizona concerning his work-related incident.  According to the \nclaimant, she asked him some questions and told him his check was in the mail.  He confirmed \nthat the FMLA lady was with a place called Matrix, which is part of the respondents’ non-medical \npacket.  He denied having typed the answers to the questions on the form.  Per the claimant, he \n\nWylie - H403539 \n11 \n \ntold the lady the same thing, which was he got hurt on the forklift at work.  The claimant denied \nthat  he  was  given  the  form  for  his  review.    He  confirmed  that  he  began  receiving  short-term \ndisability. \n  The claimant confirmed that after he saw Bone a second time, he recommended that he \nundergo an MRI.  Per the claimant, after he got the MRI, Dr. Bone discussed the results with him.  \nHe referred the claimant to a specialist, Dr. P.B. Simpson.  At that time, the claimant was paying \nfor his doctors’ visits with his own personal health insurance, which was through  Potlatch.   He \nconfirmed seeing Dr. Simpson on December 20.  According to the claimant, Dr. Simpson was the \nonly person that listened.  Per this medical note, the claimant reported to him that he felt a pop in \nhis back while at work while operating heavy equipment.  The claimant complained of right lumbar \nback  pain  that  extended  to  his right lateral  lower  extremity.  He  consistently  reported  to  Dr. \nSimpson  that  the  next  day  after  his  incident,  he  had  severe  pain  in  his  back  and  anterior  lateral \nright  thigh  pain.    The  claimant stated that  he  provided  the  same  history  to  Dr.  Bone.    He  also \nconfirmed he provided this same history to his supervisor, Mr. Sutherland.   \n However, the claimant denied that Dr. Simpson performed his back surgery.  Instead, his \npartner, Dr. Bahgat performed his back surgery.  He continued to extend the claimant’s off work \nstatus, which he provided to his employer.  The claimant continued to receive short-term disability.  \nHe  had  surgery  on  March  4,  2024.    According  to  the  claimant,  the  surgery  relieved 90% of  his \nsymptoms.  \n He  confirmed  that  Dr.  Simpson  released  him  to return to  work  on  April  24,  2024.   The \nclaimant  returned  to  work  for  Potlatch,  but  not  immediately.  The  claimant  had  to  undergo  a \nfunctional capacity evaluation/FCE before returning to work.  He underwent that physical exam \non April 30, 2024, and returned to work on May 9.   \n\nWylie - H403539 \n12 \n \n Next, the  claimant  was  shown  the  Form  N  at  page  53  of  his  exhibit.    The  claimant \nconfirmed  that  he  signed  this  document  on  May  28,  2024.  According  to  the  claimant,  this \ndocument came from Little Rock rather than from his employer.  The claimant confirmed that he \nis aware that his employer is alleging he did not give notice of his injury until May 17, 2024.  He \nadmitted that he put the wrong date of injury on this form.  The claimant admitted to mistakenly \nputting November 13, 2023, instead of November 4.   \n According to the claimant, Potlatch instructed him to contact his supervisor if he was ever \ninjured  at  work.    He  confirmed  that  when  he  returned  to  work, Mr. Sutherland  was  no  longer \nworking for them.  The claimant left his employment with Potlatch on February 9, 2025, because \nhe retired altogether.   \n The claimant confirmed that as part of his medical packet, he provided unpaid bills for the \nsurgeon,  Dr.  Bahgat, that  have  not  been  paid in  the  amount  of  $7,389.00  and  the  hospital  bill \ntotaling $31, 321.50.  He confirmed that his health insurance did not pay those bills.  However, the \nclaimant denied he has received any unpaid bills from his PCP, Dr. Simpson, or for the MRI.    \n He denied having ever physically seen Dr. Calhoun for an office consultation.  However, \nDr. Calhoun reviewed the claimant’s medical records and assigned him an 8% impairment rating.  \nThe respondents have not paid this rating.  The claimant confirmed that he is asking for payments \nfor unpaid TTD benefits, the impairment rating, medical benefits, and a  controverted attorney’s \nfee.   \n On cross-examination, the claimant confirmed that his deposition was taken in 2024.  The \nclaimant admitted that he told Dr. Simpson he was ready to get back to work, because he believed \nthat he could do his job.  He verified that he returned to work for Potlatch and received a pay raise \nfor a couple of dollars in December under his union contract.  As of the date of his deposition and \n\nWylie - H403539 \n13 \n \nat  present,  the  claimant  does  not  have  any  return medical visits  for  his  back with  a  medical \nprovider.  The claimant confirmed that he does not take any medication for his back, except over-\nthe-counter  medication for occasional soreness.  He  confirmed  that  his  deposition  testimony \nreflects that his symptoms were at a one out of ten on a ten-point scale, which is still the case.    \n The  claimant  confirmed  that  it  was  important  for  him  to  be  truthful  with  his  medical \nproviders when talking to them about what happened or caused his injury.  Likewise, he agreed \nthat it is important for him to be truthful and thorough with his employer and short-term disability \nadministrator when talking and reporting to them.   \n Under  further  questioning,  the  claimant  admitted  that Tracey  (Sutherland) was  his \nsupervisor and if they were not working the same shift, if he had a problem, he was supposed to \ncall him about it.  The claimant confirmed that if he reported anything in this case, he reported it \nto Tracey.  He admitted that his text message of November 5, 2023, to Tracey does not say anything \nabout him hitting  a pothole  or his  back  popping.    The  claimant  further  admitted  that in  his text \nthere is no mention of any specific incident involving his back at work.  He agreed that the text \nmessage says he woke up at home with symptoms.   \n According to the claimant’s deposition testimony, he testified that with the exception of \nhis allegation regarding Tracey, up through May 17, 2024, as far as the folks at Potlatch knew,  he \nwas treating for a non-work-related condition through his private health insurance. The claimant \nagreed he made a formal request for a workers’ compensation claim when he went to Josh Harris.  \nHe admitted that he reported an injury to Josh, and they turned the claim over to Sentry, but they    \ninvestigated the claim and denied it.  He admitted that his May 17 visit with Josh occurred after he \nhad returned to work on May 9.  The claimant further admitted that his visit with Josh was after \n\nWylie - H403539 \n14 \n \nhe undergone his back surgery in March.  This was also after his April 24 release from care by Dr. \nSimpson.   \n The claimant explained that what happened was down the road, someone asked him from \nthe insurance company what had happened, and he explained it to them.  At that point, his health \ninsurance company told him they would not be paying for the surgery because it was a workers’ \ncomp  claim.  Therefore,  the  claimant  contacted  the  administration  at  Potlatch  to start a  formal \nworkers’ compensation claim.   \n During his deposition testimony, the claimant denied that he had any problems, complaints, \ncriticism, issues, or communication problems with the doctors at Mainline, specifically none with \nDr. Bone.  He agreed that his first medical visit after talking to Tracey was on November 5, with \nNurse Bone.    The  claimant denied having  reported to  Dr. Bone  his  pain  started  five  days  ago \n(which was on November 7), which would put his date of injury to November 2.  He further denied \nmaking the statement to the people in radiology that he did not have an injury.   \n He admitted to seeking treatment from Dr. Bone in 2019 for some hurt ribs, and in 2021, \nwhen he had a knee pop out of place while at work.  The claimant agreed that Dr. Bone documented \nthese  office  visits correctly.  He  admitted  to  using  his  private  health  insurance  to  pay  for  his \nmedical care under Drs. Simpson and Bahgat.  The claimant further  admitted that his insurance \npaid for everything up to time for his surgery.   \n Under further questioning, the claimant explained: \n Q.  And before that May 17, 2023, encounter where you come in and   \n formally request workers’ compensation benefits, you had not told anyone  \n at Potlatch that you wanted workers’ comp benefits, had you?  \n     \n   A.  I didn’t know what they were.  I didn't know.  No, I didn't tell anybody. \n The claimant confirmed that he applied for both short-term disability and FMLA.  He also \n\nWylie - H403539 \n15 \n \n agreed that both are administrated by Matrix on behalf of Potlatch.  The claimant confirmed that \nhe was truthful when talking with the representative from Matrix when providing information for \nhis application, which was done over the telephone. \n He testified that after his insurance carrier denied the surgery, they sent him a Form N to \nfill  out,  and  he simply did  what  he  was  told to  do.    The  claimant  admitted  that  he  went  to  Dr. \nBone’s office and had a conversation with the folks in his office about how his office visit was \ndocumented  in the  medical  report.      However,  he testified that  their  conversation  and  what  Dr. \nBone wrote down does not sound like the discussion they had during his office visit.  \n Specifically, the claimant explained: \nQ.  Well, if it was understood by everyone that you had this specific work incident \ninvolving a pothole, why would you need to go back and get the visits reclassified \nor rephased...              \n \nA.  I just asked him about workman’s comp, he said all he does is check a box on \nthe top of his computer.   \n \n The  claimant  confirmed  that  he  did  not  challenge Nurse Bone’s statement about  him \ntreating with a chiropractor; or the November 2 onset date; and that his condition was considered \nnon-work-related condition.  However, the claimant testified that those are all wrong.  According \nto the claimant, he did not know that they had written any of this down until his attorney told him \nabout it.  Again, the claimant denied challenging anybody.  Instead, he testified that when he went \nin  for another office visit with  Bone, and he asked about “workman’s comp.”  The  claimant \nexplained: “I didn’t tell him what he had to do it.\"   \n He confirmed that he was injured by a specific identifiable occurrence and that he described \nthe crater as  being  six  to  seven  feet  across.   The  claimant  admitted that  he testified  during  his \ndeposition that all his symptoms started with the pothole at a specific time doing a specific activity.  \nHe  maintained  that  he  consistently  told  administration and  medical  providers  about  his  specific \n\nWylie - H403539 \n16 \n \nincident.  According  to  the  claimant, no  one would  listen  to  him  until  he  saw  Dr.  Simpson.  \nHowever, the claimant readily admitted that he did not have any explanation for why no one would \nlisten to him.  He specifically stated that he was in the doctor’s office curled over telling them that \nhe was hurting and his back popped in the forklift, but he does not know what they reported.  The \nclaimant testified that he told the doctor he hit a pothole, his back popped, and he had an immediate \nonset of pain with electrical shock.      \n With further questioning, the claimant agreed that it was an incredible coincidence that all \nthree (Dr. Bone, Matrix, and the radiologist) reported that he denied a work-related injury.   \n On  redirect  examination,  he  testified  that  he  told Mr. Bone,  Dr.  Simpson,  and  his \nsupervisor, the  same  story  about  hitting  the  pothole and  feeling  something  pop  in  his  back.  \nHowever,  the  claimant  explained  that  Dr.  Simpson  was  the  only  person  that  listened  to  him \nthroughout  the  whole  ordeal.   According  to Dr. Simpson’s report, the claimant reported feeling \nsomething pop in back while at work operating heavy machinery.  He confirmed that he worded it \nexactly like that to Mr. Sutherland and Dr. Bone.  The claimant confirmed that he testified in his \ndeposition that he used the word “moon crater” with Dr. Simpson, but the word is not mentioned \nin his report.  However, the claimant agreed that if he used the word “moon crater,” it is described \nin a different way because “a hole in the ground is a hole the ground.” \n The  claimant  confirmed  that  when  he sent  Tracey  Sutherland  the  text message on  the \nmorning of November 4, he told him he drove for the sawmill last night.  He confirmed that he \ndrove 11 hours for the sawmill that night.  The claimant agreed that the purpose of the text was to \nlet Sutherland know that he had been injured in his forklift and needed to go to the doctor.  He \nagreed that he did not say that specifically in the text, but in a later conversation they talked about \n\nWylie - H403539 \n17 \n \nwent down.  The claimant confirmed that he believes when he talked to Tracey, he told him about \nthe pop in his back. \n On re-cross examination, the claimant testified that he that he would agree that the text to \nTracey has no mention of a pothole or his back popping.  The claimant was asked to explain why \nhis text message to Tracey was vague when putting it in writing.  He replied: “Because I don’t text.  \nI use one finger really slow.”   \n THE  COURT:  I  asked  the  claimant  to  clarify  his  testimony regarding him  having  hurt \nsome ribs in an on-the-job injury while working for another employer/SeaArk, in the boat yard.  \nHe denied having received any paperwork from his employer stating that he needed to report this \nas a work-related injury.  However, the claimant testified that he injured his kneecap while working \nfor Potlatch.  The claimant confirmed that he reported the injury to his boss, and he got his knee \nfixed on his own.  According to the claimant, he used his own private health insurance to pay for \nmedical  care.  The  claimant  specifically  denied  ever  having  a  work-related  claim  before  this \nincident.     \n On recross- examination, the claimant confirmed that he has not had any problems with his \nback since his release after surgery in 2024. \n  Mrs. Debra Wylie      \n Mrs. Wylie testified on behalf of her husband.  They have been married for 43 years.  She \nconfirmed that before November 4, 2023, her husband was healthy and active.  She denied that he \nhad any problems performing his twelve-hour shifts.  Mrs. Wylie testified that she did recall the \nclaimant having a problem within the first year of his employment with Potlatch.  She stated that \nhe hurt his knee climbing in and out of the forklift and had to have surgery.   \n\nWylie - H403539 \n18 \n \n Following the November 4, 2023, incident, Mrs. Wylie testified that the claimant was in \nextreme  pain.    Per  Mrs.  Wylie,  she  had  never  seen  her  husband  in  that  type  of  pain,  other  than \nyears ago when he had cancer.  She testified that she had put him to bed that morning, which was \nhard  for  her  to  do  because  she  could  not  get  him  on  the  bed,  since  she  is  a  stroke  survivor.  \nAccording to Mrs. Wylie, her husband screamed so, until she cried.  Following the incident, she \nagreed that the claimant’s condition dramatically changed.   \n She  confirmed  that  she  went on the first doctor’s visit with him on  November  7,  2023, \nunder the care of Dr. Bone.  Mrs. Wylie denied that the claimant ever treated with a chiropractor \nbefore.  The claimant testified that they told Mr. Bone that she was just leaving an appointment \nthat morning with her chiropractor.  She confirmed that Dr. Bryant is her chiropractor.  Mrs. Wylie \nconfirmed that her husband told Dr. Bone that he was driving the forklift at work and hit a pothole \nand it twisted his back, and after that he felt a surge of pain.       \n Mrs. Wylie confirmed that she went to the claimant on his office visit with Dr. Simpson.  \nShe confirmed that as she recalls it, a correct history of what was provided to him is in the medical.  \nSpecifically, according  to this  record,  the  claimant  reported  feeling  something  pop  in  his  back \nwhile at work operating heavy machinery.  \n On cross-examination, the claimant denied that she was aware that the radiologist’s report \nshows no injury.  She further denied that she was aware that his Matrix application for short-term \ndisability and request for FMLA denies that he had a work-related injury.  Mrs. Wylie admitted \nthat  she  was  not present  when  her husband made  statements over  the telephone about either \napplication. \n She admitted that  they  found  out  after her husband’s back surgery,  that it fell  under \nworkers’ comp.  Mrs. Wylie confirmed that up to that point, everything was paid for by his private \n\nWylie - H403539 \n19 \n \nhealth insurance.  She admitted that she did not know specifically what happened because she was \nnot  there with  him  when  the  incident  occurred.   According  to  Mrs.  Wylie,  she  heard  from  her \nhusband and other forklift drivers how bumpy the roads are at his workplace. \n On  redirect  examination,  Mrs. Wylie testified  that when  the  claimant  left for work  that \nmorning, he was in good health.  However, when he came home from work that day, he was in a \nlot of pain, the kind of pain she had never seen him in before.  \n On  further  redirect  examination,  Mrs.  Wylie  testified  that  the  claimant  was  supposed  to \nhave gone to work but was unable to do so.  She confirmed that on the day the claimant left for \nwork, he seemed to have been in perfect health.  \n Under  further  cross-examination,  the  claimant  testified  she  was  awake  and  up  when  the \nclaimant came home at 5:00 a.m.  She confirmed that he was displaying symptoms at that point.  \nAccording  to  Mrs.  Wylie,  she  was  aware  that  the  claimant  was  in  pain,  but she  did  not  know \nanything about the numbness.  She denied knowing anything about the text message the claimant \nsent to Tracey on the morning of the November 5.   \n  Tracey Sutherland \n The  respondents  called  Mr.  Sutherland  as  a  witness.    He  confirmed  that  he  worked  for \nPotlatchDeltic in November 2023.  Mr. Sutherland confirmed that he is employed elsewhere.  He \nconfirmed that he does not have any ties or affiliation with PotlatchDeltic.   \n Mr. Sutherland testified that he was the kiln supervisor when he worked for Potlach.  He \nwas the claimant’s supervisor, and the person, he was supposed to report a work injury or incident.  \nMr. Sutherland maintained that the claimant would not get in trouble if he reported an injury to \nanybody other than him.  He agreed with the claimant’s testimony about them working different \nshifts.  However, Mr. Sutherland agreed that it was not uncommon for someone to contact him to \n\nWylie - H403539 \n20 \n \nto report an injury when he was not on the premises.  \n He confirmed that he interacted with the claimant on November 4, 2023 (which was on a \nSaturday) about some back problems.  He testified: \n A. Saturday?  Okay.  Yeah.  So, Mr. Wylie called me on Saturday morning and said \n that he had to find coverage ......  That I needed to find coverage for him for that \n night, the next night, because of all of the up and down, so Mr. Wylie was actually \n pulling double duty on the job, because we had  a man go home that night, so he \n was actually ..... He was the kiln forklift driver, so he was having to pull from the \n sawmill and the kilns.       \n   \n  Q.  Okay. \n \n  A.  So, he was doing a bunch of getting up and down on the forklift. \n \n Mr. Sutherland explained by coverage he meant “getting someone else to work in his place \nthat night.”   However, Mr. Sutherland admitted that they had a conversation, but the claimant did \nnot  mention anything  to  him  about  hurting  himself  after  driving  over  a  pothole  in  the  forklift.  \nAccording to Mr. Sutherland, the claimant told him his problems were not work-related or were \nrelated to something else.  He testified that best as he recalls, the claimant told him his problems \nwere related to a past injury to his back.  Mr. Sutherland denied that the claimant indicated to him \nhe needed to pursue a workers’ compensation claim.  He further denied that the claimant ever came \nback to him and tried to remind him of a supposed reporting of a back injury at any point after \nNovember 4.   \n Per  Mr.  Sutherland, had the claimant reported  a  work-related injury that  would  have \nprompted  him  to  do  an investigation  He denied  being  reprimanded  or  fired  or  anything  dealing \nwith the handling of the claimant’s workers’ compensation claim.   However,  Mr.  Sutherland \ntestified that he called Josh Harris and explained the situation to him, and at that point it was kind \nof out of his hands.  He confirmed that it was his duty to take the report, do an incident report and \ncontact safety. \n\nWylie - H403539 \n21 \n \n Mr. Sutherland testified: \nQ.    Okay.    Had  you  done  that  in  the  past  when  employees  had  reported  alleged \nwork-related injuries? \n \nA.  Yes, sir.  Several, several, several different times. \n \nQ.  And do you make any determination about whether this is a legit report or not?   \n \nA.  No, sir. \n \nHe denied getting any type of bonus from PotlatchDeltic while working as an employee, \nfor  not  reporting  a  work  comp claim.   Mr. Sutherland  confirmed  that  he  has no employment \naffiliation with them anymore.  He denied that he heard anything from the claimant about hitting \na pothole while driving a forklift and having a pop in his back prior to the filing of his claim.  He \nfurther  denied  that  the  claimant  ever  contacted  him between  November 4 and  May  17 when he \nformally  started pursuing  a workers’  comp claim.   Mr. Sutherland  officially  retired  from \nPotlatchDeltic on August 9, 2024.  He admitted to calling the claimant to see what was going on \nafter he received the subpoena to appear for the hearing.  According to Mr. Sutherland, during this \ntelephone conversation, the claimant told him about his back injury and that workers’ comp was \nnot wanting to pay for it.   He denied that the claimant reminded him during their conversation that \nhe had reported  a work-related injury to him.  Specifically, Mr. Sutherland testified they talked \nabout motorcycles and stuff and that was it.      \nOn cross-examination, Mr. Sutherland testified: \n      Q.  If I’m understanding you sir, you don’t recall anything about a text  between  \n      you and Mr. Wylie back on November 4, 2023? \n      A.  I don’t recall it sir. \nNext, Mr. Sutherland was shown a copy of the text message that the claimant sent him on \nthe morning of November 4, which read, “Drove for sawmill last night.  Woke up and my back \n\nWylie - H403539 \n22 \n \nlocked up.  Right leg numb.  Mr. Sutherland confirmed that now that he has seen the text message, \nit  does  ring  a  bell.   He  confirmed  that  his reply  to the claimant’s text was: “I’m just  seen this \nmessage.”  Ultimately, Mr. Sutherland told the claimant he would call him.   \n Under further questioning, Sutherland testified: \n Q.  So let me ask you, what’s your interpretation of that text when he wrote to you \n that morning, drove for the sawmill last night.  Woke up and my back locked up, \n right leg numb.  What does that mean to you, sir?     \n \nA.  It sounds like a back injury.   \n \nQ.  How would you say that you thought he was saying that he injured his back?   \n \nA.  So, during our phone conversation, when I did call him, his response was that, \n you know, he had to get up and down off the forklift a lot, and I understood that \n because that’s a fact. \n \nQ.   So, as you’re recalling it, you thought it was because of him getting up and \n down  from the forklift? \n \nA.  Yes.  Yes, sir. \n                                                        * * * \n \nQ.  You actually were telling him you’d better wait and do that ...... \n \nA.  And I was like, yes, sir, I was like please wait on that.  I said let’s talk to Mr. \nJosh and we’ll go from there. \n \nAccording to Mr. Sutherland, he ended up calling Josh and telling him what the situation \nwas and after that it was out of his hands.  He went on to explain: \nQ.   Okay.  So do you know whatever transpired after that as far as anything Mr. \n Josh might have done? \n \n A.   No sir. \n  Although Mr. Sutherland  was  employed  with  Potlatch  until  August  9,  2024,  he  did  not \nrecall being asked to review the paperwork that the claimant filed on May 28, 2024, for workers’ \ncompensation  benefits.    He  further  testified  that  he  honestly  did  not remember, or  recall  being \n\nWylie - H403539 \n23 \n \nasked to review or write any statements or give any information as the claimant’s supervisor with \nrespect to the filing of his claim in May 2024.  Yet, he further testified, “They may have called me \nback in there and I just repeated what little bit I knew about the situation.” \n  However, on redirect examination, Mr. Sutherland agreed that when he called Josh Harris \nback, he told him that the claimant was not saying he had a work injury.  Mr. Sutherland also stated \nthat it seems like that is reason they did not go any further.   \n  Mr.  Sutherland  maintained  that  after his conversation  with  the  claimant  and what  he \nrelayed to Mr. Harris, he did not know anything about a workers’ comp claim being pursued or \nthat anything was going on.  According to Mr. Sutherland, after that, it was kind of above his pay \ngrade so to speak, and if anything had been happening, it would have been between the claimant \nand Josh.   \n On recross-examination, Mr. Sutherland testified that the claimant was a good worker and \nworked twelve-hour shifts regularly up until November 4, 2023.  He also agreed that after looking \nat the text message (Woke up.  My back locked up.  Right leg numb.) that morning, he interpreted \nthat as meaning that the claimant had hurt himself working at the sawmill.   \n Counsel for the respondents had further redirect examination of Mr. Sutherland. He was \nspecifically asked if he had come out of the conversation with the understanding that the claimant \nwas not saying he had a work-related problem. He answered: “At that point, that was understanding \nand that is what I relayed to Josh.”  \n Mr. Sutherland specifically agreed that when he talked to the claimant, there was absolutely \nno mention of him hitting a crater or pothole or a crack in the concrete with his forklift and having \nhis back pop.  He admitted that there are a lot of potholes, but not “six feet” as what the claimant \ndescribed.  Next, Mr. Sutherland denied that the claimant reported an injury to him over the phone.    \n\nWylie - H403539 \n24 \n \n Under  further  recross  examination, Mr. Sutherland confirmed  that the  road  that  the \nclaimant had to go back and forth on was made of concrete.  He admitted that there were rough \nspots in the road but denied that they were eight inches deep and several feet wide.  Per Sutherland \nthe claimant was able to do his job regularly and routinely up until November 4, 2023.   \n Specifically, Mr. Sutherland tried to explain:  \nQ.  Now, but in some form or fashion after, you’re saying that you had this conversation \nwith him on November  4\nth\n, you somehow got the impression that he was saying that, in \nspite of what he told you, his back was hurting from something that was not work-related? \n \nA.  To the best of my recollection ...... I mean, the best way I can remember it is I asked \nhim was it was job related, and he said no, but I went ahead and called Josh because I didn’t \nknow ...... I knew that if he was going to the doctor that we needed to involve Josh, so that \npart if there. \n \n Mr. Sutherland agreed that if you read further in the claimant’s text messages, it states that \nhe needed a couple of days for the swelling to go down.  He agreed that it was clear that a doctor \nwas involved. Mr. Sutherland agreed that at that point, he thought there would have been Josh’s \ninvolvement with some paperwork.  However, Mr. Sutherland admitted that the claimant was not \ngiven paperwork for a workers’ comp. claim.  \n Next, Mr. Sutherland provided the following information regarding the claimant’s prior \nwork-related knee injury with Potlatch.  \n  THE COURT: Do you remember when he had an injury with his knee? \n A.  Yes, I do. \n  THE COURT: Was that a work-related injury? \n A.  Yes.  I believe it was. \n  THE COURT: Was it reported as a work-related injury? \n A.  Yes.  \n      \n\nWylie - H403539 \n25 \n \n On further redirect examination, Mr. Sutherland testified that the claimant did not indicate \nthat  he  was  going  to  the  doctor  on  his  own.    According  to Mr. Sutherland,  that  was  their  final \nconversation, and then he immediately called Josh to inform him of what was going on.  At that \npoint, he maintained that he was kind of done from that point on.  Mr. Sutherland confirmed that \nin November 2023, the claimant never told him that he called Josh and a conversation took place.      \n  The following exchange took place: \n THE COURT: My other question is what happened in 2021?  What was the \nprotocol for this knee injury that you ...... What steps did you take? \n \nA. Well, I believe, that was right as I was transferring into the kiln department, and \nso I actually had nothing...... I didn’t have anything to do with that, ma’am.  It was \nalready in progress when I took over being the supervisor in that department. \n \n THE COURT: So, you’re changing your testimony now?  You were not the \nsupervisor? \n \nA.  I might have been, ma’am.  I don’t really remember.  I do not have the exact \ndate that I went to that area, but I knew that he was having the knee surgery.  \n \n THE COURT: And it was reported as a work-related injury? \n \nA.  I’m not sure, ma’am, to be honest. \n \n  Josh Harris \n \n Mr.  Harris  testified  on  behalf  of  the  respondents.    He confirmed  that  he  is the  Safety \nManager for PotlatchDeltic.  He confirmed that he worked in this position in November 2023.  Mr. \nHarris began working there in May 2023.  According to Mr.  Harris, he first heard in May 2024 \nthat the claimant was contending he hit a pothole in a forklift and injured his back.  Per Mr. Harris, \nTracey called  him  Saturday  and  stated  that  the  claimant needed to  go  to  the  doctor  because  his \nback was hurting.  However, he maintained that Tracey told him the claimant was saying he hurt \nhis back in a previous injury. \n\nWylie - H403539 \n26 \n \n He agreed that if a person indicates their condition is not work-related, he does not need to \ndo anything, paperwork-wise, for work comp purposes.  Mr. Harris denied having heard from the \nclaimant  after  his conversation  on Saturday with  Tracey.  He  further  denied  hearing  from  the \nclaimant  before  May  17  about  him  maintaining that  he  had a  work  injury.   In  fact, Mr. Harris \ntestified  that  the  first  time  he  spoke  with  the  claimant was  in May  2024,  which  was  in  the \ninvestigation of him starting a comp claim.  Mr. Harris confirmed that there were supervisors and \nlead employees on the overnight shift who could have received a workers’ comp claim if someone \nhad an injury. \n  Per Mr. Harris, he talked with the claimant once he started pursuing a work-related claim, \non May 17, 2024.  Per Harris, he asked the claimant to describe the incident and that is when he \ntold him the incident happened on November 3, 2023, between 11:00 p.m. and 11:30 p.m.  Per Mr. \nHarris, the claimant told him he hit a bump in the road, and “his leg went numb.”  The claimant \ntold him the incident occurred “somewhere between the green yard and the stacker.  However, Mr. \nHarris testified that he asked the claimant if he reported the incident and he said, “No, that there \nwas no one available to the report the incident to.”  Mr. Harris also maintained that the claimant \ntold  him  that  he  did  not  report  the  incident  to  Tracey.   According  to Mr. Harris, he  asked the \nclaimant what  had  changed since  November  3, 2023, until then,  and that  point,  the  claimant \ninformed  him  that  he  received  a  letter  in  the  mail  from  his  personal health insurance company \nasking questions and stating that his condition should be filed under workers’ comp.  Mr. Harris \ndenied that the indicated he had no other way to pay for his medical bills. \n Mr. Harris confirmed that if a person suffers a work-related injury, typically that will result \nin  a  denial of short-term  disability.    He  denied  that  there  are  six-foot  potholes  with  six  to  eight \ninches of depth at Potlatch.  However, Harris admitted that there may be some rough or bumpy \n\nWylie - H403539 \n27 \n \nroads, but there are not any moon craters six foot wide.  He confirmed that they have a protocol \nfor maintaining the roads and keeping everything level.  According to Harris, they keep a load of \ncrushed asphalt and a load of SB2 on location.  He also pointed out that if there are an potholes of \nthat nature, it would be the employee’s job to report that to a supervisor and then they would follow \nup with a work order, and then that work would be completed by one of the maintenance personnel.   \n However, Mr. Harris denied that he was aware of any incidents where the holes would fill \nup  with  water  because  mains  were  being  driven  over.   He  confirmed  that  the  forklift  itself  is \nequipped with a safety feature on the forklift that would address a situation such as someone hitting \na pothole or running over something.  According to Mr. Harris, all the forklifts are equipped with \nair ride suspension seats that float with the equipment for going over rough terrain.  He specifically \ntestified  that the forklifts are the  same  model  and  manufacturer used  in  the  kilns  and  shipping \ndepartments and are equipped with that particular safety feature. \n About the claimant’s prior work-related knee injury, Mr. Harris confirmed that he does not \nhave any knowledge of the 2021 knee claim.  According to Mr. Harris, if Tracey had indicated to \nhim that the claimant was saying he had suffered a work-related injury, the first step would be for \nhim to gather a statement from the claimant.  The next thing would have been for him to contact \nthe workers’ compensation carrier to start initiating the claim and then conduct the investigation.  \nHe confirmed that he took action to initiate the claim when the claimant came to him on May 17, \n2024.  Mr. Harris  confirmed  that  he  did  not  any  contact  with  the  claimant  on  that  Saturday  (in \nNovember 2023). \n On cross-examination, Mr. Harris maintained that Mr. Sutherland never explained to him \nthat he had a written text message from the claimant reporting a work-related injury.  Mr. Harris \nfurther maintained that Mr. Sutherland just told him that the claimant had called and said that his \n\nWylie - H403539 \n28 \n \nback was hurting and he needed to go to the doctor.  According to Mr. Harris, Tracey asked him \nwhat he needed to do, and he asked him if the claimant was claiming that the incident was work \nrelated.  Per Harris, Tracey replied, “No.”  However, he denied that Tracey informed him that he \nhad a text from the claimant indicating that he had a work-related injury.   \n Next, counsel for the claimant showed Mr. Harris the text that the claimant sent to Tracey \non November 4, 2023, and asked him to read it aloud, which he did do.  He specifically stated that \nhe interpreted it as the claimant “woke up” with his back locked up and his right leg was numb.  \nMr. Harris agreed that the claimant also stated that he had been driving for the sawmill that night.  \nHe denied that he interpreted the claimant’s text as an  attempt  to  provide  his  supervisor  with  a \nwritten report about a work-related injury.  Mr. Harris explained that it just appeared to him that \nthe claimant was making a notification to his supervisor that his back was hurting after he woke \nup.  Counsel for the claimant asked whether it was because the claimant had been driving for the \nsawmill all last night; and Mr. Harris answered, “There’s nothing specific that says, “Hey, while I \nwas at work, I hit a bump and my back is hurting because of hitting a bump while at work.”  \nHowever, Mr.  Harris finally  agreed  that  he  interpreted the  text  message to say that something \noccurred at work. \n With further questioning, Mr. Harris confirmed that after the claimant reported an injury \non May 17, 2024, an investigation of the claim was conducted.  He testified that Mr. Sutherland \nwas called in to provide a written statement, although the statement was not given to the claimant’s \nattorney for his review. \n The following exchange took place: \n  THE COURT: If a person or employee is going to the doctor for a   \n reason unrelated to work, is it the norm for you to be involved in the   \n process?  \n \n\nWylie - H403539 \n29 \n \n A.  If they’re going to the doctor for a reason unrelated to work, then no. \n \n  THE COURT: So why were you involved in this instance? \n \n  A.  I was asked about what to do from the supervisor so after the phone call.... \n \n*** \n    \n   THE COURT: And how long had Mr. Sutherland worked for the company? \n \n  A.  From my understanding, Mr. Sutherland had [sic] been with the company forty \n  or so years. \n \n   THE COURT: Okay.  So, he was well aware of the process then? \n \n  A.  Yes, ma’am.  \n \n   THE COURT:   But yet he still called you and asked you what to do? \n \n  A.  Any time that there is an incident, they have to report those through management \n  and safety ...... \n   \n   THE COURT: An incident? \n \n  A.  ..... because we’ll lead the investigation.  We initiate the claims.  The supervisor \n  will not be part of initiating the workers’ comp claim. \n \n   THE COURT: So, there was an incident for you to be involved? \n \n  A.  There would have to be an incident for me to be involved, and that incident  \n  would need to be work-related.  \n \n However,  on  re-direct  examination,  Mr.  Harris  explained  that Mr.  Sutherland was \ncontacting  him  and  just  asking  for  advice.    He  again  maintained  that  Tracey  told  him  that  the \nclaimant said his back was hurting and he needed the doctor.  According to Mr. Harris, it was his \nunderstanding  that  Mr.  Sutherland wanted  to  know  if  there  was  anything he  needed  to  do.    Mr. \nHarris continued to maintain that the claimant was saying his back condition was not work-related.  \nAs a result, Mr. Harris testified that he informed Mr. Sutherland that there was nothing else that \nneeded to be done about the matter.                 \n\nWylie - H403539 \n30 \n \nMedical Evidence  \n On  November  4,  2023,  the  claimant sought  initial  medical  treatment  for  his  back  from \nAPRN, Jesse Bone at Mainline Health Systems.  His chief complaint was pain in his right hip that \nradiated into the right lower extremity that started five days.  He denied an injury.  This office note \nsays that  the  claimant  had been seen by a  chiropractor  twice  with  no  improvement.   Bone \nspecifically noted that the claimant drives a forklift at work and reports the road is very rough but \ndenied any  fall  or  injury.   He  provided  a  history  of  no  previous  back  injuries.    The  claimant \nreported not being able to find a comfortable position, worse with sitting or standing for extended \nperiods, with no relief of symptoms with over-the-counter pain medications.  Nurse Bone assessed \nthe  claimant  with: “1. Midline  low  back  pain  with  right-sided  sciatica,  unspecified  chronicity.  \nM54.41(Primary) 2.  Benign essential hypertension,” for which therapeutic injections were given \non the left gluteus.   \n Pursuant to a medical note authored on November 7, 2023, Nurse Bone wrote, in relevant \npart, “Please excuse the above name patient [David Wylie] who was seen in our clinic today.  He \nmay return to work on Monday, November 13 (2023).”  On that same day, the claimant underwent \nx-rays of the lumbar spine with an impression of “Mild lumbar degenerative disc disease.” \n The claimant returned for a follow-up with Nurse Bone on November 13, 2023, due to a \nchief complaint of severe lower back pain with radiation down his right leg.  The claimant reported \nno improvement since his last visit.  His assessments were, “1.  Midline low back pain with right-\nsided sciatica, unspecified chronicity.  M54.41 (Primary).  2. Degenerative lumbar disc – M51.36,” \nfor which he was referred to Drew Memorial Hospital for an MRI of lumbar of his lumbar spine.  \nAt that time, Bone excused the claimant from work until November 20, 2023.   \n\nWylie - H403539 \n31 \n \n An MRI of the claimant’s lumbar spine was performed on November 19, 2023, with the \nfollowing impression: \n 1. Mild distal vertebral body heights with normal alignment. \n 2. Degenerative disc disease at all levels of the lumbar spine with mild  \n canal stenosis L1/L2, moderate canal stenosis at L2/L3, L3/L4 and L5/S1 \n with severe canal stenosis at L4/L5. \n 3. The neural foramina are patent at all levels with the existing nerve roots  \n being normal.   \n \n The claimant returned to Nurse Bone on November 22, 2023, to discuss his MRI results.  \nHis  MRI  showed  multilevel  degenerative disease  and  spinal  stenosis,  canal  stenosis  severe  at \nL4/L5.   He  has  been  unable  to  work  due  to  ongoing  back pain.    Therefore,  Bone  instructed the \nclaimant to remain off work until he could be evaluated by neurosurgery.   \n On  December  20,  2023,  the  claimant  underwent  initial  evaluation  by  neurosurgery.  Dr. \nPervie  Blanton Simpson evaluated  the claimant for  lower  back  pain,  extending  into  his  lower \nextremity worse in the right hip since November 2023.  He reported feeling something pop in his \nback while at work operating heavy machinery.  The claimant had severe back pain and anterior \nshin area down to his ankle.  He reported the buckling of his right knee when he tried to go up and \ndown  stairs.  Per  this  medical  note,  the claimant  had  no  left-sided  symptoms.    However,  the \nclaimant’s symptoms had mildly improved although he had not had any physical therapy.  Dr. \nSimpson stated  that  he  had  reviewed  the  MRI.    Specifically,  he  opined  that  the  claimant  had  a \nlarge, extruded fragment down below the space at L3-4 on the right.  He could see the upper edge \nof it on  the  axial  image.   Dr. Simpson opined that the  claimant had  symptoms  with  an  absent \npatellar reflex on the right side compared to +2 on the left side and weakness of his quadriceps.  \nHe  went  over  the  MRI  with  the  claimant  and  his  wife.    Dr. Simpson explained  to  them  that he \nrecommended the claimant undergo surgical intervention in the form of a discectomy for removal \n\nWylie - H403539 \n32 \n \nof what he believes was “an extruded free fragment.”  His assessment was “lumbar radiculopathy \non the right, with right leg weakness.”   \n The claimant underwent an evaluation for physical therapy on January 22, 2024, at South \nArkansas Rehabilitation due to his back injury.    \n On February 29, 2024, the claimant saw Dr. Bahgat for an office visit at BH Neurosurgery \nDrew County Memorial due to a chief complaint of pain and discomfort in the right leg down to \nhis foot.  At that time, the claimant had continued complaints of numbness and paresthesia in his \nlower extremity.  His diagnoses included “Primary lumbar disc herniation with radiculopathy and  \nspinal stenosis of lumbar region without neurogenic claudication.”  Dr. Bahgat recommended that \nthe claimant plan for right L3-4 discectomy and right L4-5 lateral recess decompression.    \n The claimant underwent an evaluation by Dr. P.B. Simpson on March 20, 2024, for a six-\nweek  post-operative office  visit,  per  Dr.  Bahgat’s recommendation.   At  that  time,  the  claimant \nreported that his lower back pain and symptoms had mostly resolved.  Also, during that office visit \nthe claimant reported that he did not need pain medication.  Dr. Simpson stated that he would keep \nthe claimant off work until his next visit in five weeks.   His primary diagnoses were: “Primary \nlumbar disc herniation with radiculopathy and spinal stenosis of lumbar region without neurogenic \nclaudication.”  \n On April 24, 2024, the claimant returned for a post-op follow-up visit under the care of Dr. \nSimpson. At   that   time,   the   claimant   was   diagnosed   with   S/P   lumbar   laminectomy and \ndecompression on March 4, 2024.  The claimant reported to Dr. Simpson during this office visit \nthat  he  was  doing  well enough to  return  to  his  normal job activities.    Dr.  Simpson  released  the \nclaimant from his care per his request but excused him from work that day.     \n\nWylie - H403539 \n33 \n \n The claimant presented to the Functional Testing Centers on April 30, 2024, for the purpose \nof undergoing  a Functional Capacity Evaluation/FCE to figure out his current functional status.  \nThe results of this evaluation show that the claimant put forth a reliable effort.  Analysis of the \ndata collected during this evaluation shows that the claimant put forth a consistent effort and passed \nall  criteria  for  a  reliable  effort  indicating  that  a  significant  degree of  effort  was  put  forth.  He \nshowed the  ability  to  perform an  occasional  bi-manual  lift/carry up  to  fifty  pounds. Hence,  the \nclaimant completed functional testing on the above date with reliable results.  Overall, the claimant \ndemonstrated the ability to perform work in the MEDIUM classification of work as defined by the \nUS Dept. of Labor’s guidelines over the course of a normal 8-hour workday with limitations as \nlisted above.  When comparing the shown physical abilities with that of a written job description \nfor the position of Kiln-Head Forklift Driver with Potlatch, the evaluator opined, “he DOES MEET \nall of the physical demands of this position as described.”    \n On July 21, 2025, the claimant’s attorney wrote a letter to Dr. J. Micheal Calhoun asking \nthat he address what the appropriate impairment rating is for the claimant pursuant to AMA Guides, \n4\nth\n Edition based on the medical history provided.  \n Dr. Calhoun sent the following response to the claimant’s attorney in a letter on July 22, \n2025: \n I  have  reviewed  the  available  medical  records  on  David  Wylie.    Mr.  Wylie  was \ninjured on the job on November 4, 2023.  He underwent a lumbar MRI on November 17, \n2023.  Initially, the interpreting radiologist missed a large right L3-4-disc fragment inferior \nto the L3-L4 disc space.  The interpretation was subsequently corrected with an addendum. \n The patient was  evaluated  by  Dr.  P.B.  Simpson  on  December  20, 2023, who \nidentified the right L3-4 extruded fragment and the severe stenosis at L4-5.  He contacted \nthe radiologist to correct his interpretation.    \n The patient underwent a right L3-4 discectomy and L4-5 decompression with Dr. \nBahgat. \n He did well and underwent a Functional Capacity Evaluation/FCE which showed a \nreliable effort.  He has returned to work.  \n\nWylie - H403539 \n34 \n \n The patient suffered a right L3-4-disc herniation which required surgery.  Because \nhe underwent surgical treatment with residual symptoms, he is awarded an 8% impairment \nof the whole person.  This is according to Table 75, page 113, of the Fourth Edition of the \nAMA Guides to the Evaluation of Permanent Impairment.  \n \n On November 4, 2023, the claimant sent a text message to his supervisor, Tracy Sutherland.  \nBoth gave extensive hearing testimony relating to the messages and their telephone conversations \nconcerning the claimant’s back injury.      \n           Adjudication \nA. Compensability/low back  \nIn that regard, for the claimant to establish a compensable injury as a result of a specific \nincident, the following requirements of Ark. Code Ann. §11-9-102(4)(A)(i) (Repl. 2012), must be \nestablished:  (1)  proof  by  a  preponderance  of  the  evidence  of  an  injury  arising  out  of  and  in  the \ncourse of employment; (2) proof by a preponderance of the evidence that the injury caused internal \nor external physical harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. §11-9-\n102 (4)(D), establishing the injury; and (4) proof by a preponderance of the evidence that the injury \nwas caused by a specific incident and is identifiable by time  and place of occurrence.   Mikel v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).   \n A  compensable  injury  must  be proven by  medical  evidence  supported  by  objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings \nthat  cannot  come  under  the  voluntary  control  of  the  patient.   Id.  §  11-9-102(16).  The  element \n“arising out of . . . [the] employment” relates to the causal connection between the claimant’s \ninjury  and their employment.   City  of  El  Dorado  v.  Sartor,  21  Ark.  App.  143,  729  S.W.2d  430 \n(1987).  An injury arises out of a claimant’s employment “when a causal connection between work \nconditions and the injury is apparent to the rational mind.” Id. \n\nWylie - H403539 \n35 \n \n If  the claimant does not establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for showing compensability,  compensation  must  be  denied.   Mikel  v.  Engineered \nSpecialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard means evidence that \nhas greater weight or more convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n Based on my review of the record as a whole, and without giving the benefit of the doubt \nto either party, I find that the claimant has proven by a preponderance of the credible evidence that \nhe sustained a compensable back injury on November 4, 2023, during and in the course and scope \nof his employment with the respondent-employer/Potlatch while performing his job duties. \n The claimant worked as a welder for the respondent-employer.  He is 63 years of age and \nin good health after having fully recovered from colon cancer.  \n  On November 4, 2023, the claimant was told by management to work at the sawmill after \na coworker collapsed on the jobsite and had to be transported to the hospital.  The claimant credibly \ntestified that his back popped when he hit a pothole while driving a forklift on November 4, 2023.  \nHis  testimony shows that  he  promptly  reported  his  injury  to his  supervisor.    While  there  was \nextensive  testimony elicited from  the  claimant  and  his  supervisor in  this  regard,  the  credible \nevidence shows that claimant reported the injury to Mr. Sutherland via text messages and during \ntheir telephone conversation that morning.  I am convinced that there were some discussion and \nindication of an injury based on the fact that Mr. Sutherland had to check with the safety person \nprior to the claimant seeking medical treatment.  I did not find Mr. Sutherland’s credible.  He at \none  point  testified  that  the claimant  reported  an  injury,  and  at  other  times  in  his  testimony \nmaintained that the claimant told him his problems were due to an old injury.  For these and all the \nabove noted discrepancies in Mr. Sutherland’s testimony, I am persuaded the claimant sustained \n\nWylie - H403539 \n36 \n \nand reported an injury to him the morning after his November 4, 2023, incident.  The Claimant’s \ntestimony shows that he is not proficient with text messaging, which is illustrated by his use of \none finger to text.  However, his text message clearly infers that his back pain and numbness of \nthe  leg resulted  from  driving  at  the  sawmill.  I thus find  that  the  claimant  told Mr.  Sutherland \nduring their telephone conversation that he hurt his back after hitting a pothole with his forklift at \nwork the previous night.    \n Furthermore, although Nurse Bone’s medical notes say that the claimant reported that he \ndid  not  sustain an  injury, which could  be logically reasoned in the claimant’s mind.   Bone also \ndocumented in his clinical notes that the claimant reported that he did not sustain an injury such \nas a fall, which is correct.  However, the claimant offered a reasonable explanation for the denial \nof an injury in the traditional sense.  He essentially testified that he did not have an injury, such as \nin the form of physical trauma involving a cut, bruising of the skin, wound, or fracture. \n  Bone’s medical notations have other portions of it incorrectly documented.  Particularly, \nthe claimant credible denied having reported to Bone that his pain started five days ago.  I found \nhim to be credible in this regard, and this medical note is not consistent with his text message and \nother  portions  of this  medical  report  wherein  the  claimant indicated that  his  pain  resulted  from \ndriving the forklift.   Also, there is a medical report authored by Bone showing that the claimant \nhad been treated by a chiropractor for his back, both the claimant and his wife credibly testified \nthat the claimant has never received  any chiropractic treatment for his back.  Instead, they both \ncredibly testified that the claimant’s wife sought chiropractic treatment following her stroke.  The \nrecord before me is void of any evidence whatsoever showing that the claimant had any type of \ncomplaints or medical treatment for his back.  The most significant medical condition for which \nthe claimant sought prior medical treatment  was  colon cancer, which is now in remission.  The \n\nWylie - H403539 \n37 \n \nclaimant’s wife testified that they told Bone they had just left her appointment with the chiropractor \nbefore coming to see him.  I found Mrs. Wylie very credible, and she displayed mannerisms and \nresiduals of a stroke.  Hence, Mrs. Wylie offered a reasonable explanation for this inaccuracy.   \n Nevertheless,  the  claimant  did  not  find  out  his  claim  was  being  denied  by  his  health \ninsurance company until after his surgery of March 2024.  However, when the claimant saw Dr. \nSimpson in December 2023 which was clearly prior to any indication that his surgery was being \ndenied; he provided a history of having hit a pothole while operating a forklift at work, caused his \nback  to  pop,  which  was  accompanied  by an immediate onset  of  back  pain.  I  found that the \nclaimant’s testimony concerning his prior work-related injury at Potlatch to be extremely credible.  \nThe evidence shows that his prior knee injury was handled by both the claimant and management \nat Potlatch as a nonwork-related claim, in a remarkably similar manner as this matter, except in \nthat instance, his private health insurance carrier never questioned the validity of the claim. The \nclaimant credibly testified that he did not know what a workers’ compensation claim was prior to \nnow.  Mr. Sutherland and the claimant’s testimony clearly establishes that the claimant  was  an \nexemplary employee who did not call in off work.  I am persuaded that the claimant’s underlying \nconcern was the repair of his back so he could get back to work.  The above reasons also would \naccount for the reporting of a non-work-related injury being made to Matrix. \n The record is replete with objective medical finding of a back injury.  In that regard, the \nclaimant’s undwernt a lumbar MRI on November 17, 2023, which revealed a large right L3-4-disc \nextruded fragment inferior to the L3-L4 disc space.  Ultimately, after conservative care failed, Dr. \nBahgat performed a right L3-4 discectomy and L4-5 decompression.  Here, the instant claimant \nhas never experienced any prior problems with his back.  Prior to this incident, the claimant had \nbeen  able  to  perform  laborious  employment  activities  without  any  problems  or  complaints.  \n\nWylie - H403539 \n38 \n \nConsidering the afore facts, I am compelled to find that these MRI findings are causally related to \nthe claimant’s work-related incident of November 4.   \n The claimant underwent surgical intervention for his back, in March 2024, with satisfactory \nresults. Following his back surgery, on March 20, 2024, Dr. Simpson assessed the claimant with: \n“Primary lumbar disc herniation with radiculopathy and spinal stenosis of lumbar region without \nneurogenic claudication.”  Ultimately, Dr. Simpson released the claimant to return to work in April \n2024, at his request.  \n Accordingly, the claimant has proven by a preponderance of the evidence all the necessary \nelements to  prove  he  sustained  a compensable back injury when his forklift hit a  pothole  while \nperforming his employment duties for Potlatch on November 4, 2023. \nB. Lack of Proper Notice of Injury \n Here, the claimant contends that he gave proper notice of his injury to his supervisor, \nTracy Sutherland the morning after his injury, via a text message and a telephone conversation.   \nSpecifically, the claimant sent the text and talked with his supervisor in this regard on November \n4, 2023. \n The respondents contend that they did receive notice of the claimant’s alleged back injury \nuntil May 17, 2024.  As such, they contend that they are not responsible for payment of any benefits \nbefore receiving proper notice of the work-related injury.  \n The  applicable  statutory  provision  is  found at Ark.  Code  Ann.  §11-9-701 (Repl.  2012), \nwhich provides: \n(a)(1) Unless an injury either renders the employee physically or mentally unable \nto do so, or is made known to the employer immediately after it occurs, the \nemployee shall report the injury to the employer on a form prescribed or approved \nby the Workers’ Compensation Commission and to a person or at a place \nspecified by the employer, and the employer shall not be responsible for \n\nWylie - H403539 \n39 \n \ndisability, medical, or other benefits prior to receipt of the employee’s report of \ninjury.... \n \n(b)(1) Failure to give the notice shall not bar any claim: \n \n(A) If the employer had knowledge of the injury or death;  \n(B) If the employee had no knowledge that the condition or disease arose out of \nand in the course of the employment; or \n(C) If the commission excuses the failure on the grounds that for some satisfactory \nreason the notice could not be given. \n \n  The credible evidence before me clearly shows that the claimant gave proper notice of his  \n back injury to his supervisor, Tracey Sutherland, the morning after his work-related incident of \nNovember 4, 2023.  I found the claimant’s testimony to be extremely credible in this regard.  \n  Hence,  the claimant’s testimony  is significantly corroborated  by  the  contemporaneous \nmedical records, namely, that of Dr. Simpson’s medical report of December 2003, and is pointedly \nbolstered by the testimony of Mr. Sutherland, whom I did not find to be a credible source. \n   My inference in this regard is established via the text message and the testimony elicited \nby both parties during the hearing regarding their telephone conversation.  Mr. Sutherland conceded \nthat he did not recall the details of their conversation, while admitting that he told the claimant he \nneeded to talk to management before he could seek medical attention.  This statement within itself \nindicates  to  me  that  the  claimant  reported  an  injury.   Otherwise,  there  would  not  have  been  any \nrational reason for Mr. Sutherland to seek guidance from management before the claimant could \nsee  a  doctor.   Mr. Sutherland  admitted  that  it  is  not customarily  a  prerequisite for  him  to tell an \nemployee he needs to speak with management before they seek medical attention when they call in \ndue  to a  personal  illness  such  as a cold, or  the  flu.   He  confirmed  that  it  is  only  when  there  is  a \nsuspected  work-related  injury that  an  employee  is  instructed  to wait before seeking medical \nattention.  Considering that Mr. Sutherland gave conflicting and confusing testimony regarding the   \n\nWylie - H403539 \n40 \n \n reporting of an injury, I found his testimony to be incredulous, self-contradictory, and unworthy of \nbelief.  The evidence preponderates that the claimant promptly and properly reported an injury per \nhis employer established policy before he sought medical attention for his back injury.  \n  Specifically, I find that the claimant gave his employer/ Mr. Sutherland proper notice of \nhis injury on the morning of November 4, 2023.  Therefore, the respondents are responsible for \npayment of benefits on this claim beginning on the date of injury. \n C.  Medical Benefits \n An employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn. § 11-9-508(a) (Repl. 2012).  The claimant bears the burden of proving by a preponderance \nof the evidence that medical treatment is reasonably necessary.  Stone v. Dollar General Stores, \n91 Ark. App. 260, 209 S.W. 3d 445 (2005).    \n After  reviewing  the  evidence  in  this  case  impartially,  without  giving  the  benefits  of  the \ndoubt to either party, I find that the claimant has met his burden of proving that all of the medical \ntreatment of record that he received for his back injury, including the surgery performed by Dr. \nBahgat  and  accompanying  hospitalization, and  all  of  the  diagnostic  testing was reasonably \nnecessary in connection with the injury he received on November 4, 2023.  \n Specifically, the treatment modalities utilized were ordered for the purposes of diagnosing, \nevaluating, and treating his back condition.  The claimant had no symptoms in his back prior to \nhis November 4 injury that were causative and the reason for his current back problem and need \nfor treatment. I expressly find that the medical treatment provided for the claimant at the level of \nL3-4  was  reasonably  necessary  in  connection with  the  claimant’s  compensable  injury.   Of \nimportance is  the  fact  that  the  claimant  received  significant  relief  of  his  back  pain  and  related \n\nWylie - H403539 \n41 \n \nsymptoms from the back surgery. The is no evidence whatsoever showing that the claimant had \nany  prior  complaints  with  his  back  before  his  work  accident.    The claimant  proved  by  a \npreponderance of the evidence that all the medical treatment of record is causally connected to the \nwork-related back injury received by him on November 4, 2023.   \n Hence,  the  evidence  preponderates  that  the  medical  treatment of  record received  by  the \nclaimant for his back was reasonably necessary in accordance with Ark. Code Ann. § 11-9-508(a). \nThe  respondents  are  liable  for  payment  of  all  the  claimant’s  medical  treatment  for  his \ncompensable back injury of November 4, 2023.   \n D.  Temporary Total Disability Compensation  \nHere, the Claimant contends that he is entitled to temporary total disability benefits for his \nlow back injury beginning November 5, 2023, and continuing until the date he was released from \nmedical care of his back surgery, by Dr. Simpson, occurring on April 24, 2024.     \nThe claimant suffered a back injury, which is an unscheduled injury.  An injured employee \nfor  an  unscheduled injury is entitled  to  temporary  total disability compensation  during  the  time \nthat he is within his healing period and totally incapacitated from earning wages.  Arkansas State \nHighway  and  Transportation  Department  v.  Breshears,  272  Ark.  244,  613  S.W.2d  392  (1981).  \nThe healing period is that period for healing of the injury which continues until the employee is as \nfar restored as the permanent character of the injury will allow.  Nix v. Wilson World Hotel, 46 \nArk.  App.  303,  879  S.W.2d  457  (1994).    If  the  underlying  condition  causing  the  disability  has \nbecome stable and nothing further in the way of treatment will improve that condition, the healing \nperiod has ended.  Id.  Temporary total disability cannot be awarded after the claimant’s healing \nperiod has ended. \n\nWylie - H403539 \n42 \n \n In  the  present  case,  the  claimant  sustained  a  compensable  back  injury  on  November  4, \n2023.  He initially sought medical treatment from his primary care provider for his back condition,  \nJesse Bone, APRN.  The claimant was given off work slips by Nurse Bone.  When the claimant’s \ncondition did  not improve, Bone recommended that  he  undergo a  lumbar  MRI,  which  was \nperformed on November 17.  This MRI revealed that the claimant sustained a “right extruded free \nfragment,” and severe right L3-4 disc herniation, accompanied by severe stenosis at L4-5 on the \nright side.  On November 22 Bone referred the claimant to a neurosurgeon, and he also restricted \nthe claimant from working until he could undergo this evaluation.  The claimant was evaluated by \nDr.  Simpson on  December  20, and he diagnosed the  claimant with  a large  extruding  fragment \ndown below the space, and a severe herniated disc at L3-4, for which he recommended surgical \ntreatment.  The claimant underwent back surgery on March 4, 2024, by Dr. Bahgat.  This surgery \nrendered the claimant physically unable to perform his regular job duties at Potlatch until April \n24, 2024.  At that point, the claimant was released from care by Dr. Simpson at his request to return \nto work.   \nThe claimant credibly testified that he was unable to work following his work incident of \nNovember 4, 2023, until April 24, 2024.  His credible testimony of his inability to return to work \nfollowing his November 4 back injury due to severe back pain and related symptoms of the leg \nuntil his release from care is corroborated by the medical evidence of record.  The parties stipulated \nthat the claimant reached maximum medical improvement for his back condition/injury on April \n24.  Temporary total disability compensation cannot be awarded after the claimant’s healing period \nhas ended. \n   Accordingly,  based  on all the  foregoing,  I  find  that  the  claimant  proved  his  entitled  to \ntemporary total disability compensation from November 5, 2023, until April 24, 2024.     \n\nWylie - H403539 \n43 \n \n E.  Permanent Anatomical Impairment    \n  Permanent  impairment  is  any  functional  or  anatomical  loss  remaining  after  the  healing \nperiod has been reached.  Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994).  \nThe  Commission  has  adopted  the  American  Medical  Association Guides  to  the  Evaluation  of \nPermanent  Impairment (4\nth\n ed.  1993)  to  be  used  in  assessing  anatomical  impairment.   See \nCommission  Rule 099.34 (now codified  at  11  C.A.R. § 25-129);  Ark.  Code  Ann.  §11-9-522(g) \n(Repl. 2012).  It is the Commission’s duty, using the Guides, to determine whether the Claimant \nhas proved he is entitled to a permanent anatomical impairment.  Polk County v. Jones, 74 Ark. \nApp. 159, 47 S.W.3d 904 (2001).      \n Any determination of the existence or extent of physical impairment shall be supported by \nobjective  and  measurable  physical  findings.   Ark.  Code  Ann.  §11-9-704(c)(1)  (Repl.  2012).  \nObjective findings are those findings which cannot come under the voluntary control of the patient.  \nArk.  Code  Ann.  §11-9-102(16)(A)(i)  (Repl.  2012).    Although  it  is  true  that  the  legislature  has \nrequired medical evidence supported by objective findings to prove a compensable injury, it does \nnot follow that such evidence is required to establish each element of compensability.  Stephens \nTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  All that is needed is that the \nmedical evidence be supported by objective findings.  Singleton v. City of Pine Bluff, 97 Ark. App. \n59, 244 S.W.3d 709 (2006).      \nPermanent  benefits  shall  be  awarded  only  upon  a determination  that  the  compensable \ninjury was the major cause of the disability or impairment.  Ark. Code Ann. §11-9-102(F)(ii)(a) \n(Repl. 2012).  “Major cause” means “more than fifty percent (50%) of the cause,” and a finding of \nmajor cause shall be established according to a preponderance of the evidence.  Ark. Code Ann. \n§11-9-102(14) (Repl. 2012).  Preponderance of the evidence means the evidence that has greater \n\nWylie - H403539 \n44 \n \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).   \nThe claimant contends that he sustained an 8% permanent impairment rating for his back \nfor his compensable work-related back injury of November 4, 2023.  The respondent contends that \nthe claimant did not sustain an anatomical impairment due to his work-related injury. \nI  am  persuaded  that  the  claimant  proved  by  a  preponderance  of  the  evidence  that  he  is \nentitled to an award of an 8% permanent anatomical impairment to his low back due to his work-\nrelated  injury  of  November  4,  2023.    The  basis  for  my determination  of  the  existence  of  this \nimpairment rating is outlined below.    \nSpecifically, on December 20, 2023, Dr. Simpson recommended that the claimant undergo \nsurgical intervention to remove an “extruded free fragment.” Dr. Simpson identified a right L3-4 \nmigrating disc herniation as well as L4-5 right lateral recess severe stenosis following an MRI of \nthe claimant’s lumbar spine, which  was performed  on  November  17,  2023.    The  claimant \nunderwent back surgery by Dr. Bahgat on March 4, 2024, in the form of a right L3-4 discectomy \nand L4-5 decompression.         \nOn July 21, 2025, Dr. J. Michael Calhoun assigned the claimant an 8% permanent physical \nimpairment for  his  work-related  back  injury,  utilizing  the AMA  Guides to  the  Evaluation  of \nPermanent Impairment, Fourth Edition.  Per his medical note, Dr. Calhoun assessed the claimant \nwith an 8% impairment because he underwent surgical treatment with residual symptoms. There \nare no expert opinions to the contrary. Dr. Calhoun’s expert opinion is well reasoned and comports \nwith my review of Table 75, page 3/113 of the Guides, which assigns “Whole Person Impairment \nPercents Due to Specific Spine Disorders.” Prior  to his compensable injury of November 4, the \nclaimant’s testimony shows that he had no history of any complaints or problems relating to his \n\nWylie - H403539 \n45 \n \nback.  I found his testimony to be extremely credible in this regard.  In fact, the claimant’s credible \ntestimony regarding no prior back problems is corroborated by the lack of any medical evidence \nindicating a prior history of any medical treatment or diagnostic tests such as an MRI or x-rays \nhaving been performed on his back.  There is no evidence whatsoever indicating that the claimant \nmissed any work due to any ongoing complaints of the back and any related symptomatology.  The \nevidence  before  me  clearly  proves  that  prior  to  his  work injury, the claimant’s  pre-existing \ndegenerative disc disease was asymptomatic.  I am persuaded that Dr. Calhoun’s expert opinion is \ncorrect and well-reasoned, with no evidence or expert opinions to the contrary.  Therefore, I have \nattached significant evidentiary weight to Dr. Calhoun’s expert opinion.  For these reasons, I am \nalso convinced that the major cause of the claimant’s permanent anatomical impairment, which \nresulted from his work-related injury of November 4, 2023.   \n F.  Attorney’s Fee \n The parties stipulated that the respondents have controverted this claim in its entirety.  As \nsuch, the claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity benefits \nawarded herein to the claimant, pursuant to Ark. Code Ann. §11-9-715 (Repl. (2012). \n                                                                    AWARD \n Respondents are directed to pay benefits in accordance with the findings of fact set forth \nherein this Opinion.   \n All accrued sums shall be paid in lump sum without a discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809 (Repl. 2012).  \n  Pursuant to Ark. Code Ann. §11-9-715 (Repl. 2012), the claimant’s attorney is entitled to \na 25% attorney’s fee on the indemnity benefits awarded herein.   \n \n\nWylie - H403539 \n46 \n \n This fee is to be paid one-half by the insurance carrier and one-half by the claimant.  \n      IT IS SO ORDERED. \n \n                                                                            ______________________                       \n                         CHANDRA L. BLACK \n                                Administrative Law Judge","textLength":92545,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO.: H403539 DAVID WYLIE, EMPLOYEE CLAIMANT POTLATCH CORPORATION, EMPLOYER RESPONDENT SENTRY CASUALTY COMPANY, CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 3, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, Arkansa...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","herniated","hip","lumbar","knee","ankle","fracture"],"fetchedAt":"2026-05-19T22:34:08.342Z"},{"id":"alj-H207088-2025-10-30","awccNumber":"H207088","decisionDate":"2025-10-30","decisionYear":2025,"opinionType":"alj","claimantName":"Beverly Rice","employerName":"Baptist Health","title":"RICE VS. BAPTIST HEALTH AWCC# H207088 October 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RICE_BEVERLY_H207088_20251030.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RICE_BEVERLY_H207088_20251030.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207088 \n \nBEVERLY A. RICE, EMPLOYEE       CLAIMANT \n \nvs \n \nBAPTIST HEALTH,               RESPONDENT \nSELF-INSURED EMPLOYER \n \nCLAIMS ADMINISTRATIVE SERVCICES, TPA         RESPONDENT \n \n \n \nOPINION & ORDER FILED 30 OCTOBER 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 24 September 2025 in Little Rock, Arkansas. \n \nThe claimant appeared pro se. \nThe respondents appeared through Worley, Wood & Parrish, P.A., Ms. Melissa Wood. \nSTATEMENT OF THE CASE \n A Prehearing Order was entered on 22 July 2025 and admitted to the record as \nCommission’s Exhibit No 1. Consistent with that Order, the parties agreed to the following \nfor this litigation: \n 1. The Arkansas Workers’ Compensation Commission (the Commission)  \n  has jurisdiction over this claim. \n \n 2. The self-insured employer/employee/TPA relationship existed at all  \n  relevant times, including 17 January 2022, when the claimant   \n  suffered a compensable injury to the middle finger on her right hand. \n \n 3. The claimant’s average weekly wage at the time of her injury was  \n  $505.25, which would entitle her to weekly temporary total disability  \n  (TTD) and permanent partial disability (PPD) benefits of $337 and  \n  $253, respectively. \n \n 4. The claimant was released to return to full-duty work with a zero  \n  percent (0%) impairment rating. \n \n\nB. Rice- H207088 \n2 \n \n 5. The claimant sought and received a Change of Physician to   \n  Dr. Bryan Head. \n \nISSUE TO BE LITIGATED \n 1. Whether the claimant is entitled to additional medical treatment. \nAll other issues are reserved. \nCONTENTIONS \n The Prehearing Order set out the following contentions from the parties’ respective \nprehearing questionnaire responses: \n Claimant \nThe claimant contends that she sustained a compensable injury to her right \nmiddle finger while delivering a patient’s meal tray. The door to the cart \nswung open and smashed the claimant’s right middle finger. The claimant \ncontends that the injury has caused her finger to stiffen as time has gone on. \nAll other issues are reserved. \n \n Respondent \nThe respondents contend that all appropriate benefits have been paid with \nregard to this matter. The medical records do not support the need for \nadditional medical treatment nor the entitlement to indemnity benefits \nassociated with the claimant’s compensable injury. \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witness, observing her demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant has failed to prove by a preponderance of the evidence that she \nis entitled to additional medical treatment of her stipulated compensable \nright middle finger injury. \n \n \n\nB. Rice- H207088 \n3 \n \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \n The record consists of the hearing transcript and the following exhibits: \nCommission’s Exhibit No 1 (the 22 July 2025 Prehearing Order) and Respondents’ Exhibit \nNo 1 (one index page and 17 pages of medical records). The claimant was the only witness. \nTestimony \n The claimant is 63 years old and has been working for Baptist (its varying corporate \nnames and changing facility designations notwithstanding) since 1978. She was working for \nRespondent-employer Baptist Health when she injured her right middle finger while \npassing out patient food trays. She testified that food trays are delivered to the patient \nrooms via large rolling carts and the door to the cart she was using smashed her finger. \n\nB. Rice- H207088 \n4 \n \nAfter she reported her injury, the respondents accepted the claim as compensable and \nbegan providing benefits. \n The claimant treated with Dr. Richard Wirges, who initially provided some injection \ntherapy before eventually performing trigger release surgery. Dr. Wirges put the claimant \non light duty while she recovered from surgery. The claimant disagreed with Dr. Wirges’ \nopinion when he later released her from care at maximum medical improvement (MMI) and \nreturned her to full-duty work without any impairment rating or restrictions. The claimant \nthen obtained a Change of Physician to Dr. Bryan Head. The claimant recalled Dr. Head \nproviding her two more injections that only helped with her reported pain for a few days. \nShe continues working essentially the same job duties for essentially the same pay as \nbefore her injury, although her position was recently absorbed by a third party who now \ncontracts with Baptist for various services. \n On cross-examination, the claimant acknowledged prior hand surgeries with Dr. \nWirges that were not related to her stipulated compensable injury. She testified that she \ncontinues to experience some occasional soreness and numbness that she attributes to this \ninjury.\n1\n “I’m just wondering why my hand is still bothering me,” she said. She believes that \nshe could benefit from additional injection therapy to address some stiffening and “hard \nskin” that she still experiences. \nMedical Records \n The claimant did not introduce any medical or other documentary evidence into the \nrecord. The respondents provided medical records that showed that the claimant previously \n \n1\n At the end of her testimony, the claimant spoke about believing that she is entitled to an \nimpairment rating and the indemnity benefits associated with the same. We briefly \ndiscussed that whether she was entitled to the assignment of an impairment rating had not \nbeen anticipated as part of this litigation and that she had reserved all other available \nissues for future litigation. \n\nB. Rice- H207088 \n5 \n \nunderwent right thumb and right carpel tunnel surgeries. Regarding her compensable \ninjury, Dr. Wirges released the claimant from care and back to full duty on 18 November \n2022. He noted at the time that she had some early arthritic changes.  \n In a subsequent note, dated 11 January 2023, he confirmed that, “She will return to \nall activities with no restrictions and no limitations and she has no impairment. She is at \nMMI.” A note from Dr. Head’s office on 18 January 2024 also shows that the claimant was \nreleased to work with no restrictions. \nDISCUSSION \n The parties have stipulated that the claimant sustained a compensable injury to her \nright middle finger. At issue is whether she is entitled to additional medical treatment \nsince her initial release from care at MMI and continued work-without-restrictions status \nafter obtaining a Change of Physician. For the reasons explained below, she has failed to \nprove by a preponderance of the evidence that she is entitled to additional medical \ntreatment. \n Employers must promptly provide medical services which are reasonably necessary \nin connection with compensable injuries. Ark. Code Ann. § 11-9-508(a). However, injured \nemployees have the burden of proving by a preponderance of the evidence that medical \ntreatment is reasonably necessary. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004). What constitutes reasonable and necessary medical treatment is a fact \nquestion for the Commission, and the resolution of this issue depends upon the sufficiency \nof the evidence. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996).  \n A claimant may be entitled to additional treatment even after her healing period is \nended, if that treatment is geared towards management of a compensable injury. Patchell, \nsupra. Such services can include those for the purpose of diagnosing the nature and extent \nof the compensable injury; reducing or alleviating symptoms resulting from the \n\nB. Rice- H207088 \n6 \n \ncompensable injury; maintaining the level of healing achieved; or preventing further \ndeterioration of the damage produced by the compensable injury. Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). An employee who has sustained a \ncompensable injury is not required to offer objective medical evidence in order to prove that \nshe is entitled to additional treatment. Ark. Health Ctr. v. Burnett, 2018 Ark. App. 427, 558 \nS.W.3d 408.  \n As noted above, the claimant relied only on her testimony to advance her contention \nthat she is entitled to additional medical treatment. Specifically, she argued that the \nrespondents should be liable for additional injection therapy which she hopes might address \nwhat she perceives as soreness and stiffness attributable to her compensable injury. But by \nher own admission, she received little pain relief in her hand after her last two injections. \n Dr. Wirges first released the claimant to full-duty work without restrictions in \nNovember of 2022. He then clarified in January of 2023 that despite some lingering \ncomplaints of pain and soreness, the claimant had achieved MMI. I find his reports to be \ncredible. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002) (The \nCommission is authorized to accept or reject a medical opinion and is authorized to \ndetermine its medical soundness and probative value). \n Since obtaining a Change of Physician to Dr. Head, the records show that the \nclaimant’s work status continues to be without restrictions. The only suggestion that she \nmight benefit from additional treatment is her unsupported opinion that more injections \ncould help with occasional soreness or stiffness that she believes (without supporting \ncredible evidence) is attributable to her compensable injury. The claimant is 63 years old \nwith some signs of arthritis are noted in the records. Her subjective complaints of \noccasional pain and stiffness in her thrice operated-on hand are not enough to support a \nfinding that additional medical treatment is reasonable or necessary. I find the claimant’s \n\nB. Rice- H207088 \n7 \n \nconcerns about her hand being sore to be sincere, but I do not find those concerns to be of \nsufficient weight to sustain her evidentiary burden. She has thus failed to prove by a \npreponderance of the evidence that she is entitled to additional medical treatment. \nCONCLUSION \n The claimant has failed to prove by a preponderance of the evidence that she is \nentitled to additional medical treatment. This claim for additional benefits is therefore \nDENIED AND DISMISSED. \nSO ORDERED. \n____________________________________ \n       JayO. Howe \n       Administrative Law Judge","textLength":11621,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207088 BEVERLY A. RICE, EMPLOYEE CLAIMANT vs BAPTIST HEALTH, RESPONDENT SELF-INSURED EMPLOYER CLAIMS ADMINISTRATIVE SERVCICES, TPA RESPONDENT OPINION & ORDER FILED 30 OCTOBER 2025 Heard before Arkansas Workers’ Compensation Commission Administrative Law Ju...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:4","denied:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:36:01.531Z"},{"id":"alj-H500240-2025-10-28","awccNumber":"H500240","decisionDate":"2025-10-28","decisionYear":2025,"opinionType":"alj","claimantName":"Francis Hicks","employerName":"Ozark Waffles, LLC","title":"HICKS VS. OZARK WAFFLES, LLC AWCC# H500240 October 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HICKS_FRANCIS_H500240_20251028.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HICKS_FRANCIS_H500240_20251028.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H500240 \n \nFRANCIS HICKS, Employee CLAIMANT \n \nOZARK WAFFLES, LLC, Employer RESPONDENT \n \nSUMMIT CONSULTING, LLC Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 28, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by ZACHARY F. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On January  14,  2024,  the  claimant  filed  an  AR-C  requesting  various  compensation \nbenefits in  which he alleges an injury to his right arm on or about January 10, 2024.  There has \nbeen no request for a hearing and no further action was taken in this claim. \nOn July 16, 2025, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed for lack of prosecution. A hearing was  scheduled for October 9, 2025. Notice of that \nhearing was sent to the claimant by certified mail, return receipt requested on August 22, 2025. \nThat  certified  mail  notice  was  returned  to  the  Commission  by  the  Post  Office  with  a  notation \n“Return to Sender. Unclaimed. Unable to Forward.” \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After a review of the \n\nHicks – H500240 \n \n-2- \nrespondents’ Motion to Dismiss, the claimant’s lack of desire to pursue her claim, and her failure \nto appear at the scheduled hearing, as well as all other matters properly before the Commission, I \nfind  that  claimant  has  failed  to  prosecute  this  claim.  Therefore,  this  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2074,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H500240 FRANCIS HICKS, Employee CLAIMANT OZARK WAFFLES, LLC, Employer RESPONDENT SUMMIT CONSULTING, LLC Carrier RESPONDENT OPINION FILED OCTOBER 28, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claima...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:57.402Z"},{"id":"alj-H404732-2025-10-28","awccNumber":"H404732","decisionDate":"2025-10-28","decisionYear":2025,"opinionType":"alj","claimantName":"Timothy Wise","employerName":"T&j Specialty","title":"WISE VS. T&J SPECIALTY AWCC# H404732 October 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WISE_TIMOTHY_H404732_20251028.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WISE_TIMOTHY_H404732_20251028.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404732 \n \nTIMOTHY WISE, Employee      CLAIMANT \n \nT&J SPECIALTY, Employer      RESPONDENT \n \nACCIDENT FUND INS. CO., Carrier/TPA     RESPONDENT \n \n \n OPINION FILED OCTOBER 28, 2025  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant represented by KENNETH J. KIEKLAK, Attorney at Law, Fayetteville, Arkansas.  \n \nRespondent represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn August 15, 2024, the claimant’s attorney, Kenneth Kieklak, filed an AR-C requesting \nvarious compensation benefits in which he alleged injuries to his head and bilateral wrists on or \nabout July 22, 2024. The claim was accepted as compensable, and all related benefits were paid. \nNo further action was taken regarding this claim. \n On May 22, 2025, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed for lack of prosecution. A hearing was  scheduled for October 2, 2025. Notice of that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on August  4,  2025. \nUnited States Postal Department records indicate that claimant received and signed for the notice \non August  6,  2025. Claimant did not appear at the scheduled hearing.  Claimant’s attorney did \n\nWise – H404732 \n \n-2- \nappear at the hearing and set forth that she had no objection to the dismissal of the claimant’s \nclaim as all appropriate benefits had been paid. \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After my review of \nthe respondents’ Motion to Dismiss, the claimant’s attorney’s agreement to the dismissal, and all \nother  matters  properly  before  the  Commission, I  find  that  claimant  has  failed  to  prosecute  this \nclaim. Therefore, this claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2244,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404732 TIMOTHY WISE, Employee CLAIMANT T&J SPECIALTY, Employer RESPONDENT ACCIDENT FUND INS. CO., Carrier/TPA RESPONDENT OPINION FILED OCTOBER 28, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Cla...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:59.458Z"},{"id":"alj-H204851-2025-10-27","awccNumber":"H204851","decisionDate":"2025-10-27","decisionYear":2025,"opinionType":"alj","claimantName":"Janet Foster","employerName":"Goodwill Industries Of Ark., Inc","title":"FOSTER VS. GOODWILL INDUSTRIES OF ARK., INC. AWCC# H204851 October 27, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FOSTER_JANET_H204851_20251027.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FOSTER_JANET_H204851_20251027.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H204851 \n \nJANET FOSTER, Employee CLAIMANT \n \nGOODWILL INDUSTRIES OF ARK., INC. Employer RESPONDENT \n \nRISK MANAGEMENT RESOURCES, Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 27, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant unrepresented and appearing pro se. \n \nRespondents represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n Claimant suffered an admittedly compensable hernia on June 6, 2022. A hearing \nwas conducted on claimant’s claim on April 22, 2024, and an Opinion was filed on May \n15,  2024,  finding  that  claimant  was  entitled  to  additional  medical  treatment  from  Dr. \nShamim;  that  claimant  was  entitled  a  weight  loss  program  at  Metabolic  Research \nCenter;  and  that  claimant  was  entitled  to  temporary  total  disability  benefits  from \nDecember   19,   2022,   through   January   6,   2023.   That Opinion   was   appealed   by \nrespondent  and  was  affirmed  and  adopted  by  the  Full  Commission  in  an  Opinion  filed \nJanuary 27, 2025. \n\nFoster – H204851 \n \n-2- \n Subsequently,  Attorney  Walker  filed  a  Motion  to  Withdraw  as  Counsel  and  that \nmotion  was  granted  by  an  Order  filed  June  2,  2025.  Thereafter,  on  July  9,  2025, \nrespondent  filed  a  motion  to  dismiss  the  claim for  failure  to  prosecute.  A  hearing  on \nrespondent’s motion was scheduled for October 6, 2025. \n Claimant  appeared  at  the  hearing  and  testified  that  since  the  last  hearing  she \nhad been participating in the awarded weight loss program; however, at some point she \nhad to go to Texas to take care of a family member. She took a supply of the metabolic \nsupplement with her but had to stay longer than she anticipated, and her supply ran out. \nAs  a  result,  she  was  not  able  to  continue  with  the  program.  During  this  time period \nrespondent  suspended  payment  because  it  was  unaware  as  to  why  claimant  was  not \ncontinuing in the program.  \n Claimant  has  returned  and  would  like  to  continue  with  her  weight  loss  program \nand Attorney Wood represented that respondent was willing to continue paying for that \nprogram. \n With respect to any outstanding issues, claimant testified that she was not sure if \nthere were other issues that needed to be addressed, and she would like to discuss any \npotential issues with legal counsel. Claimant testified that she has attempted to find an \nattorney to represent her but has been unable to do so. \n Pursuant to 11 CAR §25-110(d), upon meritorious application to the Commission \nfrom  a  party  requesting  that  the  claim  be  dismissed  for  want  of  prosecution,  the \nCommission  may,  upon  reasonable  notice  to  all  parties,  enter  an  order  dismissing  the \nclaim for want of prosecution. \n\nFoster – H204851 \n \n-3- \n Based upon claimant’s testimony that she is unsure as to whether there are any \nadditional issues to litigate and her testimony that she is in the process of attempting to \nfind legal counsel, I find that claimant is not failing to prosecute her claim. Therefore,  I \nfind that respondent’s motion to dismiss this claim should be and hereby is denied. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":3533,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H204851 JANET FOSTER, Employee CLAIMANT GOODWILL INDUSTRIES OF ARK., INC. Employer RESPONDENT RISK MANAGEMENT RESOURCES, Carrier RESPONDENT OPINION FILED OCTOBER 27, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Coun...","outcome":"dismissed","outcomeKeywords":["affirmed:1","dismissed:5","granted:2","denied:1"],"injuryKeywords":["hernia"],"fetchedAt":"2026-05-19T22:35:55.338Z"},{"id":"full_commission-H303124-2025-10-24","awccNumber":"H303124","decisionDate":"2025-10-24","decisionYear":2025,"opinionType":"full_commission","claimantName":"David Otwell","employerName":"Jerry Lynn Roberson","title":"OTWELL VS. JERRY LYNN ROBERSON AWCC# H303124 October 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Otwell_David_H303124_20251024.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Otwell_David_H303124_20251024.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H303124 \n \nDAVID OTWELL, \nEMPLOYEE \n \nCLAIMANT \nJERRY LYNN ROBERSON,  \nEMPLOYER \n \nRESPONDENT \nEMPLOYERS PREFERRED INSURANCE CO., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED OCTOBER 24, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE JAMES A. ARNOLD, II, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \nOPINION AND ORDER \n \n The claimant appeals an administrative law judge’s OPINION ON \nREMAND FILED JULY 29, 2025.  The administrative law judge entered the \nfollowing findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim.   \n2. That the claimant has failed to satisfy the required burden \nof proof to show that an employer/employee carrier \nrelationship existed between the claimant and the \nrespondent on June 25\nth\n, 2022, the date of the injury. \n3. That all other issues are found to be moot. \n4. If not already paid, the respondents are ordered to pay the \ncost of the transcript forthwith.   \n\nOTWELL - H303124  2\n  \n \n \n \n  After reviewing the entire record de novo, it is our opinion that the \nadministrative law judge’s decision is supported by a preponderance of the \nevidence, correctly applies the law, and should be affirmed.  The evidence \ndemonstrates that the administrative law judge’s findings are correct and \nare therefore adopted by the Full Commission.  The claimant has not \nproven that any aspect of the Commission’s adjudication is violative of the \nclaimant’s constitutional rights.  See Long v. Wal-Mart Stores, Inc., 98 Ark. \nApp. 70, 250 S.W.3d 263 (2007).   \n The Full Commission affirms and adopts the July 29, 2025 decision \nof the administrative law judge, including all findings of fact and conclusions \nof law, as the Full Commission’s opinion on appeal.   \n IT IS SO ORDERED. \n \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2405,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303124 DAVID OTWELL, EMPLOYEE CLAIMANT JERRY LYNN ROBERSON, EMPLOYER RESPONDENT EMPLOYERS PREFERRED INSURANCE CO., INSURANCE CARRIER/TPA RESPONDENT","outcome":"affirmed","outcomeKeywords":["affirmed:3","remanded:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.976Z"},{"id":"alj-H306223-2025-10-21","awccNumber":"H306223","decisionDate":"2025-10-21","decisionYear":2025,"opinionType":"alj","claimantName":"Loretta Goss","employerName":"Texas Roadhouse","title":"GOSS VS. TEXAS ROADHOUSE AWCC# H306223 October 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GOSS_LORETTA_H306223_20251021.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GOSS_LORETTA_H306223_20251021.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:46.851Z"},{"id":"alj-H406940-2025-10-21","awccNumber":"H406940","decisionDate":"2025-10-21","decisionYear":2025,"opinionType":"alj","claimantName":"Jerome Gulley","employerName":"Holcim","title":"GULLEY VS. HOLCIM AWCC# H406940 October 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GULLEY_JEROME_H406940_20251021-1.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GULLEY_JEROME_H406940_20251021-1.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H406940 \n \n \nJEROME GULLEY,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nHOLCIM,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nSEDGWICK CLAIMS MG’T SERVICES, INC., \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED OCTOBER 21, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \nHearing conducted on Thursday, October 16, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ)  Mike Pickens, in Hope, \nHempstead County, Arkansas. \n \nThe claimant, Mr. Jerome Gulley, pro se, of Prescott, Ouachita County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable Michael Zachary Ryburn, Ryburn Law Firm, \nLittle Rock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Thursday, October 16, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and 11 C.A.R. Section 25-110(d) (Code of AR Regulations 2025) (formerly cited \nas Commission Rule 099.13 (2025 Lexis Replacement)). \n         The  claimant  initially  was represented  in  this  matter  by  attorney Andy  L.  Caldwell of the \nCaldwell Law  Firm  in  Little  Rock. In an email to the ALJ’s office Mr. Caldwell advised the \nclaimant  no  longer  wished  to  pursue  his  claim.  Consequently,  Mr.  Caldwell  requested  leave  to \n\nJerome Gulley, AWCC No. H406940 \n2 \n \nwithdraw as the claimant’s attorney. By ALJ order filed November 25, 2024, Mr. Caldwell was \ngranted leave to withdraw as the claimant’s attorney of record. (Commission  Exhibit 2). The \nrespondents filed a motion to dismiss this claim without prejudice for lack of prosecution (MTD) \non July 31, 2025. (Respondents’ Exhibit 1). In accordance  with the applicable law the claimant \nwas provided due and legal notice of both the respondents’ MTD as well as the date, time,  and \nplace of the subject hearing, which he received on August 27, 2025. (Comms’n Ex. 3). Thereafter, \nthe claimant failed and/or refused to respond to the respondents’ motion in any way, or to appear \nat the subject hearing. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute his claim, or to request a \nhearing in the last six (6) months. All of this was consistent with his prior attorney’s email to the \nALJ advising he no longer wished to pursue his workers’ compensation claim. \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of  this  claim,  and  other  relevant  matters  of  record including the representations and \nargument of credible counsel, I hereby make the following: \n\nJerome Gulley, AWCC No. H406940 \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of both the respondents’ MTD without prejudice \nfiled with the Commission on July 22, 2025, as well as due and legal notice of the date, \ntime, and place of the subject hearing, the claimant failed and/or refused to respond to the \nMTD in any way and failed and/or refused to appear at the subject hearing. Moreover and \nsignificantly, the claimant’s prior attorney advised the ALJ by email that the claimant no \nlonger wished to pursue this claim. \n \n3. The claimant has not requested a hearing within the last six (6) months and has taken no \nsteps to raise any issues related to or to prosecute this claim.  \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwithout prejudice filed July 31, 2025, should be and hereby is GRANTED; and this claim  \nis dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. \nCode  Ann. Section  11-9-702(a)  and  (b) and 11 C.A.R. 25-110(d)  (formerly  cited  as \nCommission Rule 099.13). \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n                                                                                \n \n\nJerome Gulley, AWCC No. H406940 \n4","textLength":5935,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H406940 JEROME GULLEY, EMPLOYEE CLAIMANT HOLCIM, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ SEDGWICK CLAIMS MG’T SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 21, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:49.010Z"},{"id":"alj-H005620-2025-10-21","awccNumber":"H005620","decisionDate":"2025-10-21","decisionYear":2025,"opinionType":"alj","claimantName":"Jerry Oliver","employerName":"Arkansas Forestry Commission","title":"OLIVER VS. ARKANSAS FORESTRY COMMISSION AWCC# H005620 October 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/OLIVER_JERRY_H005620_20251021.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OLIVER_JERRY_H005620_20251021.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H005620 \n \nJERRY OLIVER, Employee CLAIMANT \n \nARKANSAS FORESTRY COMMISSION, Employer RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 21, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents  represented  by CHARLES  H.  MCLEMORE,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On July  31,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.      A  pre-hearing  conference  was  conducted  on June  9,  2025,  and  a  Pre-hearing  Order \nwas  filed  on June  10,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  August \n10, 2020. \n 3. The claimant sustained a compensable injury to his left shoulder, left elbow, and low \nback on or about August 10, 2020. \n\nOliver – H005620 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $499.00 for temporary total disability benefits and $374.00 for permanent partial \ndisability benefits. \n 5.  Respondents  have  accepted  8%  impairment  for  his  compensable  lumbar  spine  injury \nand 2% impairment for his compensable left shoulder injury. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is entitled to wage loss disability. \n 2. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“The claimant contends  that he is entitled to additional permanent \npartial  disability  benefits  for  loss  of  wage  earning  capacity  and \nmay  be  entitled  to  additional  permanent  partial  disability  benefits \nfor increased permanent physical impairment.” \n \n The respondents’ contentions are as follows: \n“The    Respondents    contend    that    the    claimant    sustained    a \ncompensable  injury  on  August  10,  2020  for  which  he  has  been \nprovided  medical  and  indemnity  benefits  by  Respondent.  The \nclaimant reported injuries to his left shoulder and low back. \n \nThe  claimant  was  provided  medical  treatment  by  Respondent, \nincluding treatment for his lumbar injury with Dr. Frank Tomecek \nwho  performed  a  surgery  January  9,  2021  to  remove  hardware \nfrom  a  prior  non-work  related  surgery.  The  claimant  was  released \nat  MMI  by  Dr.  Tomecek  for  his  lumbar  on  July  7,  2021  with  8% \npermanent anatomical impairment. \n \nThe  claimant  was  seen  by  Dr.  Jeffrey  Johnson  for  his  left  elbow, \nwho  treated  the  claimant  conservatively  including  an  MRI  and \ninjection.  The  claimant  was  released  at  MMI  by  Dr.  Jeffrey \nJohnson  on  July  26,  2021  for  his  left  elbow  with  0%  permanent \nimpairment. \n \nThe   claimant   was   provided   treatment   for   his   left   shoulder \nincluding therapy and MRI, and was seen by Dr Bolyard who had \n\nOliver – H005620 \n \n-3- \nperformed surgery previously on the claimant’s left shoulder. Dr. \nBolyard   commented   that   there   were   no   known   postsurgical \nchanges  to  the  left  shoulder,  and  released  the  claimant  for  his  left \nshoulder November 20, 2020, stating no surgery was indicated. \n \nThe  Respondent  agreed  to  provided  the  surgery  recommended  by \nDr.  Andrew  Heinzelmann  on  the  claimant’s  left  shoulder, \nperformed  March  16,  2022.  The  claimant  was  released  by  Dr. \nHeinzelmann  at  MMI  to  full  activity  without  restriction  on  May \n17, 2022. The claimant was assigned a 2% impairment to the body \nas  a  whole  by  Dr.  Heinzelmann,  which  Respondent  accepted  and \nhas paid to the claimant, with attorney fee. \n \nThe  claimant  was  terminated  for  cause  by  his  employer  after  he \nhad  been  offered  accommodation  to  return  to  work.  The  claimant \nhad a bona fide and reasonably obtainable offer to be employed at \nwages equal to or greater than his average weekly wage at the time \nof  the  accident,  therefore,  he  is  not  entitled  to  permanent  partial \ndisability   benefits   in   excess   of   the   percentage   of   permanent \nphysical impairment pursuant to Ark. Code Ann. §11-9-522(b)(2). \nFurthermore,    the    claimant    had    been    provided    vocational \nrehabilitation   counseling   after   his   injury   and   back   surgery. \nSubsequent  to  his  left  shoulder  surgery,  the  claimant  has  again \nbeen offered vocational rehabilitation counseling by Respondent. \n \nThe  Respondent  contends  that  the  claimant,  now  age  51,  cannot \nestablish that he is entitled to permanent disability benefits related \nto  his  work  injury  in  excess  of  his  permanent  impairment  ratings \nalready assigned by his treating physicians or in the form of wage \nloss  disability.  The  claimant,  who  runs  his  family  farm  operation, \nwas  terminated  for  cause,  ad  also  had  been  provided  vocational \nrehabilitation counseling previously but did not have an interest in \npursuing  it,  he  has  instead  pursued  Social  Security  Disability \nbenefits   as   well   as   disability   benefits   through   the   Veterans \nAdministration. The Respondent further contends that claimant has \na  history  of  preexisting  conditions,  unrelated  to  a  work  injury,  for \nwhich  he  already  receives  disability  benefits  and  the  claimant \ncannot  establish  the  work  injury  for  the  major  cause  of  additional \npermanent disability benefits he demands. \n \nA hearing was set in this matter on November 9, 2023, but the file \nwas returned to the Commission’s general files on November 1, \n2023,  with  no  activity  until  after  Respondent  filed  its  Motion  to \nDismiss  for  Want  of  Prosecution,  when  the  claimant  demanded  a \nhearing. Respondent’s Motion to Dismiss is still pending. \n\nOliver – H005620 \n \n-4- \n \nThe  Respondent  reserves  the  right  to  raise  additional  contentions, \nor  to  modify  those  stated  herein,  pending  the  completion  of \ndiscovery.” \n \n The claimant in this matter is a 51-year-old male who sustained compensable injuries to \nhis  left  shoulder,  left  elbow,  and  lower  back  on  or  about  August  10,  2020.  The  parties  have \nstipulated that the claimant sustained whole body impairment ratings of 8% regarding his lumbar \nspine and 2% whole body impairment regarding his left shoulder. It is for these injuries that the \nclaimant has asked the Commission to determine whether he is entitled to wage loss disability. \n On  August  10,  2020,  the  claimant  was  performing  employment  services  on  a  piece  of \nprivate land when he slipped and fell due to moss-covered rock. The claimant received medical \ntreatment for his injuries by multiple doctors due to the variety of his injuries. The claimant’s \nwork-related injuries eventually resulted in his receiving an impairment rating of 8% to the body \nas a whole regarding his lumbar spine and 2% to the body as a whole regarding his left shoulder. \nThe  claimant  testified  that  he  did  not  receive  any  restrictions  related  to  his  left  shoulder,  but \nrestrictions were placed on his back. Following is a portion of the claimant’s direct examination \ntestimony: \nQ I just want to know if they gave you any restrictions. \n \nA Yes. \n \nQ Was that the only restriction? \n \nA Yes, sir. They gave me zero for my elbow. \n \nQ And did you – \n \n THE  COURT:  Mr.  Ellig,  just  for  a  point  of  clarification. \nCould  you  inquire  about  which  doctor  that  was?  What  body  part \nthat doctor was that gave the restriction? \n \n\nOliver – H005620 \n \n-5- \nA (Witness  continues.)  Dr.  Frank  Tomecek  was  the  back \ndoctor for my eight percent. \n \n THE COURT: Okay. \n \nQ (Mr.  Ellig  continues.)  Did  he  give  any  other  restrictions, \nlike bending, or stooping, or twisting, or anything like that? \n \nA Not after the six months. Before that, I did, yes. \n \nQ And at six months, he just said no lifting over 30 pounds on \na regular basis? \n \nA Yes, he said, yep, put me on a weight limit. He told me to \njust be careful, you now, don’t do stuff to hurt it. \n \nQ Don’t do something that hurts? \n \nA And that happens sometimes. \n \nQ How about your shoulder? \n \nA It still – I still have a lot of pain in my shoulder. \n \nQ Did he give you – did the doctor impose any limitations on \nyou  using  your  shoulder  when  he  treated  you  for  your  shoulder, \nDr. Heinzelmann? \n \nA No, he gave me just a clear – clear to go. \n \n The claimant was asked on direct examination about his ability to perform his job duties \nfor the respondent/employer after his release as follows: \nQ How  much  could  you  lift  after  you  were  released  by  Dr. \nTomecek? \n \nA Thirty pounds or less. \n \nQ Did you try to stick with those limitations? \n \nA Yes, at first it was hard. You know, I would unload a bag of \ndog  food,  but  that  felt  like  80  pounds  so  I  just  made  myself  stop \nbecause it put me in bad back pain when I would do that. \n \n\nOliver – H005620 \n \n-6- \nQ At  that  time,  when  you  were  released  by  all  your  doctors, \ndo you believe you were physically capable of performing your job \nfor the forestry service? \n \nA No, sir. I was even told by two different back surgeons that \nI should never get on a bulldozer. \n \n MR. MCLEMORE: Objection, that would be hearsay. \n \n THE COURT: Sustained. \n \n MR.  ELLIG:  Judge  I’m  just – just  try  to  answer  my \nquestion. \n \n THE COURT: I understand. \n \nQ (Mr. Ellig continues.) We don’t need to know necessarily \nwhat someone told you unless they put it in writing. I just need to \nknow  what  difficulties  would  you  have  had  in  doing  the  forestry \nservice job? \n \nA Well,  I could not be a dozer operator anymore.  If we were \nvery – I could walk – \n \nQ What   would   have   bothered   you   about   being   a   dozer \noperator? \n \nA Well,  it  beats  you  to  death.  I  mean,  the  rocky  terrain  and \nrunning over downed burnt trees and stuff. \n \nQ The vibrations? \n \nA On, the vibration. There’s no shocks on a dozer, I mean \nit’s, it’s very – \n \nQ What other activities? \n \nA Well,  walking  a  long  ways.  Trying  to  even  climb  a  ladder \nto fix something, if I needed to, on my house. \n \nQ I’m trying to just stick with what you couldn’t do at – \n \nA At forestry? \n \nQ -- the forestry service. \n\nOliver – H005620 \n \n-7- \n \nA Well – \n \nQ Couldn’t climb a ladder? \n \nA No. I mean we – \n \nQ Could not walk on uneven ground for distances? \n \nA Yes,  sir.  Could  not  get  on  a  lot  of  uneven  ground.  I  mean, \nit’s rough, like I say, and we have – a lot of time we are out there \nafter dark and you trip on stuff, fall on stuff, and we are raking fire \nlines with rakes and, you know, putting fires out with our flappers, \nand we got chainsaws, trying to cut stuff down, and that stuff right \nthere just doing that and bending trying to cut them logs and do all \nthat work. There’s no way I could do that. \n \nQ By the time you had been released by the doctors, were you \nstill employed by the forestry service? \n \nA No, sir. \n \n The  claimant  was  terminated  by  the  respondent  on  or  about  January  11,  2021.  The \nclaimant  testified  that  he  was  never  offered  a  job  by  the  respondent  within  his  restrictions  as \nfollows: \nQ Now,  after  you  were  released  by  your  doctors,  has  the \nforestry service ever offered you a job within your restrictions? \n \nA No, sir. \n \nQ Have   they   ever   obtained   for   you   a   job   within   your \nrestriction that would pay the same or greater wage than you were \nearning at the time you got hurt? \n \nA No, sir. \n \nOn cross examination, the claimant was asked about the respondent offering work after his work-\nrelated injury as follows: \nQ Did you ever go back to work for the  forestry commission \nafter that day of the accident? \n\nOliver – H005620 \n \n-8- \n \nA No, sir. They called me  in November of 2020 and told me \nto go get a drug test, and I said “What for?” They said, “Because.” \nI said, “Okay. I’m on workmen’s comp I don’t know how this \nworks.” So, I called the workmen’s comp woman and she said, \n“Yeah, you go do that.” And I said, “Okay.” So I went on over to \nChaffee,  did  a  blood  test.  Coming  back  they  called  and  said, \n“Hey,”  my  district  supervisor  from  Clarksville,  and  he  said,  “I \nneed  you  in  Clarksville  Monday  morning.”  And  I  said,  “Okay, \nwhat are we doing?” He said, “You’re coming back to work down \nhere.” And I said, “Chuck,” – it was November – my back surgery \nwas coming up in less than two months. I said, “What am I going \nto do?” He said, “You’re going to shred papers.” And I said, “Do \nwhat?” I said, “Chuck, I’m not driving to Clarksville. I’ve got a \n1988, 454 big-block that’s going to get five miles to the gallon.” I \nsaid, “I can’t do that.”  And he said, “Spence,  please, get these \nmonkeys off my back. Please come down here.” That’s his exact \nwords. \n \n So I go home and called my workmen’s comp counselor, \nand she said, “Well, you don’t have to do that.” She said – I said, \n“Ma’am, I can’t do that.” And she said, “You don’t have to. It ain’t \nno  big  deal.”  She  said,  “You  just  won’t  draw  your workmen’s \ncomp.” And I said, “I’m fine with that.” And never heard from no \none again until they called me to terminate me. \n \nQ So shredding papers was what they offered you? \n \nA Yes, sir. \n \nQ Would that have been inside an office? \n \nA Their office was connected to a shop thing. He said, “You \nare going to sit out in that shop and shred papers.” I said, you \nknow, I was just – I don’t understand it, I don’t know why, but that \nis what I was told. \n \nQ So that was November of 2020? \n \nA Yes, sir. \n \nQ So you don’t know about the shredding papers because you \nnever actually did that? \n \n\nOliver – H005620 \n \n-9- \nA No, no, legally I didn’t have to because of what workmen’s \ncomp told me. I think it was, honestly, made them want to fire me. \n \nQ Well, of course, no one can force you to do something, but \nyou were offered the job shredding papers, and you told them you \ndidn’t want to do that, correct? \n \nA Yes, I did. \n \n On  January  11,  2021,  the  claimant  was  sent  a  letter  of  termination  by  the  respondent, \nwhich is found at Respondents’ Exhibit 2, pages 13 and 14, which in part states: \nLet  this  serve  as  notification  that  your  employment  with  the \nArkansas   Department   of   Agriculture   (Department)   is   being \nterminated   effective   immediately,   due   to   violations   of   the \nEmployee Discipline Policy, specifically: \n \nInsubordination – An  employee  shall  promptly  obey  any  lawful \norder  of,   and  follow   all  reasonable  instructions  issued  by,   a \nsupervisor or superior. \n \nProfessionalism – While on the job, an employee shall demonstrate \nprofessionalism  as  follows:  Courteous,  Patient  and  Respectful \nAttitudes.  An  employee  shall  be  patient,  courteous,  and  respectful \nwhen  dealing  with  other  employees  and  the  public.  An  employee \nshall be tactful in the performance of his or her  duties, control his \nor  her  temper,  exercise  patience  and  discretion,  and  not  become \ninvolved   in   inappropriate   arguments   even   in   the   face   of \nprovocation. \n \nYour  supervisors  have  attempted  to  contact  you  be  telephone  on \nseveral  occasions  over  the  past  two  months  and  have  requested  a \nreturn call, but you failed to return any of the calls. A request from \nyour  supervisor  for  you  to  return  phone  calls  is  a  reasonable \ninstruction.   Therefore,   your   failure   to   return   the   calls   is \nInsubordination under the Employee Discipline Policy. \n \nWhen you finally did contact your supervisor on January 11, 2021, \nyou were discourteous and disrespectful. \n \n The  claimant  was  asked  on  cross  examination  about  his  termination  and  at  one  point \ndiscusses a back surgery that was upcoming. I note that that back surgery the claimant references \n\nOliver – H005620 \n \n-10- \nis unrelated to the claimant’s workers’ compensation claim. Following is the claimant’s cross \nexamination testimony about his letter of termination: \nQ And then, was Chuck Primeaux your supervisor? \n \nA He was our district supervisor, yes, sir. \n \nQ District  in  Clarksville  and  it  was  after  that  that  you  were \nterminated, correct? \n \nA Yes, two days before my back surgery. \n \nQ I’ve got a letter here from your termination. \n \n MR. MCLEMORE: May I approach? \n \n THE COURT: You may. \n \n MR. MCLEMORE: This is page 13 of Respondents’ – \n \n THE COURT: Page what? I’m sorry. \n \n MR. MCLEMORE: Page 13 of Respondents’ Exhibit 2. \n \n THE COURT: Thank you. \n \nQ (Mr. McLemore continues). Just take a look at that and tell \nme if you recognize it. \n \nA My letter didn’t have all this in it that I got, and it’s a lie. \n \nQ Well, I’m going to have to ask you, you’ve already given \nyour address on the record and this address is different. \n \n Can you read that? \n \nA Uh-huh, that’s my mom’s address. \n \nQ Did you live at that address? \n \nA I’ve lived on the farm, across the pasture from her for 25 \nyears. But, at one time my mail did go down there because I didn’t \nhave a mailbox on Special Bond Road. I just used it, and there’s \nabout  12  mail  boxes  there  so  I  moved mine out  of  there  because \n\nOliver – H005620 \n \n-11- \nthere  was  too  many  kids,  teenagers,  and  hands  down  there,  and  I \nthought, man, I’m moving my mail box. \n \nQ Okay, so Whippoorwill Lane is your mother’s – \n \nA Yes. \n \nQ -- house on the family farm property? \n \nA It’s on the east side of where there’s a dead end dirt road \nwhere that is, and I’m on the west side of the road. \n \nQ Okay. \n \nA And the not answering the telephone you see there, when I \nasked Chuck, “How could you fire me,” he said, “Because you \ndidn’t answer your telephone.” I said, “Chuck, no one has called \nme, no one.” From the time I got hurt to the time of my back \nsurgery, I talked to my counselor ranger once when she called and \nsaid, “You need to go get a drug test.” She didn’t say, “Hi, hello, \nhow is your back. Go get a drug test.” \n \n Then  I  talked  to  Chuck when he  called  about  shredding \npapers, and I called him back and I told him, I said, “workmen’s \ncomp said I didn’t have to do this.” And I said, “It’s legal.” And he \nis like, “Okay.” And then, I talked to Chuck the day he called and \ntold me Little Rock wanted to terminate me and I said, “What \nfor?” And he said, “Not answering the telephone.” And I kind of \nstarted  laughing,  I  thought  he  was  just  being  silly.  And  he  goes, \n“No, I’m serious, Spence.” And I said, “Chuck, that’s a bunch of \nBS  and  you  know  it.”  So  I  like  how  he  put  it  there,  being \ndisrespectful  to  my  supervisor.  At  that  phone  call,  I  was  fired  at \n8:30  something  in  the  day,  and  I  talked  to  him  about  11:00,  so  I \nwasn’t even an employee then, so. \n \nQ Well – \n \nA It’s on the letter that I got. \n \nQ Okay. \n \nA Or what he told me “You’re terminated” at 8:30, 8:34. And \nI believe it’s on the letter that I got. But my letter is different than \nyours. \n \n\nOliver – H005620 \n \n-12- \n The  claimant  was  also  provided  the  opportunity  for  vocational  rehabilitation  by  the \nrespondent, which he initially participated in. Following is a portion of the claimant’s initial \nvocational rehabilitation evaluation document with Heather Taylor, MRC, CRC: \nReport Summary \nAt the request of Public Employee Claims Division, I met with Mr. \nJerry  Oliver  to  complete  a  vocational  rehabilitation  assessment, \npreliminary to exploring his return-to-work options. We met at the \nlibrary in Van Buren on 08/11/21. \n \nPrior  to  beginning  the  meeting  with  Mr.  Oliver,  I  explained  my \nrole   as   a   vocational   rehabilitation   counselor   and   provided   a \nSystemedic    disclosure    informational    pamphlet,    which    he \nacknowledged receipt and understanding. \n \nMr. Oliver has completed medical treatment and has been released \nto return to the workforce by his physician. He will not be able to \nreturn  to  his  job  of  injury,  but  in  my  opinion  should  be  able  to \nreturn to the workforce in the future to a different job that is within \nhis work restrictions. \n \n*** \nStatements Regarding Returning to Work and/or Retraining \nMr.    Oliver    did    express    in    interest    in    seeking    additional \nemployment.  He  has  proven  to  manage  multiple  jobs  at  one  time \nover the course of his career. \n \nHe did express a couple of different interests as it relates to finding \na new/different job in the future.  He  expressed an interest in parts \nsales and service as he has done this in the past and this would be \nconsistent with his functional work restrictions. He also expressed \nan  interest  in  starting  another  business  (self-employment)  as  a \nnuisance animal removal technician or weed control technician (as \nhe   has   a   current   required   pesticide   license   for   his   farming \noperation).  These  options  would  also  be  consistent  with  his  work \nrestrictions. \n \nBut  he  is  also  open  to  exploring  any  other  options  in  the  labor \nmarket that might be in interest to him. \n \nMr. Oliver is in a unique position in that he does not “need” to \nobtain  another  job  from  an  income  standpoint  as  he  indicated  that \nwith his rental properties, cattle farm operation, and most recently \n\nOliver – H005620 \n \n-13- \nhis VA disability award, he has sufficient income to “live.” He also \nis   in   a   unique   position   to   not   required   a   job   that   provides \ninsurance/benefits and he said all of his medical is provided by the \nVA. In my opinion, this will allow Mr. Oliver to be more selective \nwith the next job that he takes or even allow him the ability to start \nanother small business. \n \nAnalysis, Goals, and Recommendations \nConsidering  all  of  the  relevant  medical  and  vocational  factors \nreviewed  to  date,  it  is  my  opinion  Mr.  Oliver  is  a  good  candidate \nfor   returning   to   the   workforce.   He   has   skills   from   his   past \nexperience  that  he  will  be  able  to  utilize  in  returning  to  a  new  or \nsimilar  position that  is more  consistent  with  his  current  functional \nabilities. \n \nHe    is    agreeable    to    working    with    me    in    the    vocational \nrehabilitation/job    search    process.    Going    forward,    I    would \nrecommend    completing    follow-up    meetings    with    him    to \nupdate/finalize   his   resume,   provide   him   with   interview   skills \ntraining and preparation, complete mock interviews with him prior \nto  any  interview  that  he  receives,  provide  online  job  application \ninstructions,  complete  weekly  job  market  research  to  identify  job \nopenings he can apply for, update his online job search profile with \nthe   State   of   Arkansas,   and   update   and   upload   his   resume \ninformation to additional job search sites. \n \nHe is agreeable to this course of action. Therefore, we will proceed \naccordingly. \n \n The  claimant,  after  his  initial  vocational  rehabilitation  consultation,  stopped  responding \nto  the  rehabilitation  specialist.  Following  are  the  bodies  of  three  letters  that  were  sent  to  the \nclaimant about vocational rehabilitation after his initial consultation: \nAs  you  may  recall,  we  are  scheduled  for  a  follow-up  vocational \nrehabilitation  meeting  on  09/02/21,  but  you had  to  cancel  due  to \nyour  COVID  exposure.  I  advised  I  was  leaving  on  vacation  in  a \nfew  days  and  would  contact  you  upon  my  return  to  reschedule.  I \nreturned to  my  office  from  vacation  on  09/20/21,  and  I  have  tried \nto  reach  you  several  times  by  telephone/text  but  have  not  heard \nfrom you. \n \nTherefore,  I  am writing to let you know that if  I  do not hear from \nyou  in  four  weeks  (by  11/19/21)  then  I  will  assume  you  are  no \n\nOliver – H005620 \n \n-14- \nlonger    interested    in    vocational    rehabilitation/return-to-work \nservices, and I will close out your vocational rehabilitation file. \n \n*** \nThis  letter  is  regarding  vocational  rehabilitation  services  for  your \nopen  workers’  compensation  case.  Your  adjuster,  Marie \nWoodman,  with  Public  Employee  Claims  Division,  referred  your \ncase  for  vocational  services.  I  am  the  vocational  rehabilitation \nconsultant  with  Systemedic.  I  would  like  to  schedule  a  meeting \nwith   you   for   your   initial   vocational   interview. My   job   as   a \nvocational  rehabilitation  consultant  is  to  provide  an  appropriate \nlevel of assistance, based on assessed needs, necessary to achieve a \nmeaningful and sustainable employment outcome. \n \nI  have  attempted  contacts  via  telephone  on  08/24/23,  08/25.23, \n08/31/23, 09/05/23, and 10/04/23. I also sent letters in the mail on \n08/25/23  and  09/05/23,  but  have  been  unsuccessful  in  reaching \nyou.  I  am  attempting  to  provide  vocational  rehabilitation  services \nand    in    order    to    initiate    vocational    rehabilitation    services, \ncommunication  from  you  will  be  required.  Please  contact  me  to \nschedule  an  appointment  as  requested  by  your  workers’ \ncompensation insurance company. \n \n*** \nThank you for contacting me on October 18, 2023, regarding your \nvocational  rehabilitation  referral.  I  was  able  to  inform  Public \nEmployee Claims Division (PECD) of the discussion between you \nand I regarding your upcoming surgery, and if continuing forward \nwith    vocational    rehabilitation    services    is    warranted.    After \ndiscussing  this  with  PECD,  it  is  advised  to  move  forward  with \noffering vocational rehabilitation services.  \n \nI  would  like  to  schedule  to  meet  with  you  soon  for  your  initial \nvocational  rehabilitation  interview.  I  attempted  to  contact  you  by \ntelephone  on  10/20/23  and  10/23/23  with  no  response.  Please \ncontact  me  to  schedule  an  appointment  as  requested  by  your \nworkers’ compensation insurance company. \n \nI  again  note  that  the  surgery  referenced  in  the  October  23,  2023,  letter  to  the  claimant  is  not \nassociated with his workers’ compensation claim. The respondent in this matter employed the \nservices  of  a  private  investigator  to  follow  and  video  the  claimant  during  his  daily  activities. \n\nOliver – H005620 \n \n-15- \nWhile the testimony of the investigator and video certainly show the claimant being active, I do \nnot believe it showed the claimant performing activities above his lifting restriction of 30 lbs.  \nWage loss is the degree to which the compensable injury has affected the claimant’s \nearning  capacity.  The  extent  of  disability  is  a  question  of  fact  for  the  Commission. Cross  v. \nCrawford   County   Memorial   Hospital,   54   Ark.   App.   130,   923   S.W.2d   886   (1996).   The \nCommission  is  charged  with  assessing  wage  loss  on  a  case  by  case  basis.  Factors  to  be \nconsidered  in  assessing  wage  loss  include  the  claimant’s  age,  education,  work  experience, \nmedical evidence and other matters which may reasonably be expected to affect the worker’s \nfuture earning power such as motivation, post-injury income, bona fide job offers, credibility or \nvoluntary  termination.   Glass  v.  Edens,  233  Ark.  786,  346  S.W.2d  685  (1961); City  of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Curry v. Franklin Electric, 32 \nArk. App. 168, 798 S.W.2d 130 (1990);  Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, \n635  S.W.2d  276  (1982);  and Hope  School  District    v.  Charles  Wilson,  2011  Ark.  App.  219,  \nS.W.3d  (2011).  The  award  of  wage  loss  is  not  a  mathematical  formula,  but  a  judicial \ndetermination based on the Commission’s knowledge of industrial demands, limitations, and \nrequirements, Henson v. General Electric, 99 Ark. App. 129, 257 S.W.3d 908 (2008). \n Pursuant  to  A.C.A.  §11-9-522(b)(1),  when  considering  claims  for  permanent  partial  disability \nbenefits  in  excess  of  the  percentage  of  permanent  physical  impairment,  the  Commission  may  take  into \naccount various factors including the percentage of impairment as well as the employee’s age, education, \nwork experience, and all other matters reasonably expected to affect his future earning capacity. \n After  considering  the  evidence  and  testimony  submitted  by  the  parties  in  this  matter,  alongside \nthe Arkansas Workers’ Compensation Act and the factors set forth in case law, I find the claimant to be \nentitled to wage loss in an amount that would be equal to a whole-body impairment of 5%. The claimant’s \n\nOliver – H005620 \n \n-16- \nmotivation to work seems exceedingly low, with the claimant even having made clear to Heather Taylor, \nthe vocational rehabilitation specialist, that he really doesn’t need to work. The claimant was offered \nemployment  within  his  restrictions  by  the  respondent  but  refused  that  employment  and  was  eventually \nterminated.  The  claimant  certainly  does  have  a  30  lb.  lifting  restriction  regarding  his  back  and  an \nanatomical impairment to his lower back and left shoulder, but given the totality of the circumstances, I \nfind that a wage loss in an amount that would be equal to a 5% whole-body impairment is appropriate in \nthis matter. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJune 9, 2025,  and  contained in a Pre-hearing Order filed June 10, 2025,  are hereby accepted as \nfact. \n 2. The claimant has proven by a preponderance of the evidence that he is entitled to wage \nloss disability in an amount that would be equal to a 5% whole-body impairment. \n 3. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney fee in this matter. \n ORDER \nThe  respondent  shall  pay  the  claimant  wage  loss  disability  in  an  amount  that  would  be \nequal to a 5% whole-body impairment rating. \n Respondents shall pay to the claimant's attorney the maximum statutory attorney's fee on \n\nOliver – H005620 \n \n-17- \nthe benefits awarded herein, with one half of said attorney's fee to be paid by the respondents in \naddition  to  such  benefits  and  one  half  of  said  attorney's  fee  to  be  withheld  by  the  respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":32064,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H005620 JERRY OLIVER, Employee CLAIMANT ARKANSAS FORESTRY COMMISSION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED OCTOBER 21, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian Count...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["shoulder","back","lumbar"],"fetchedAt":"2026-05-19T22:35:51.095Z"},{"id":"alj-H208417-2025-10-21","awccNumber":"H208417","decisionDate":"2025-10-21","decisionYear":2025,"opinionType":"alj","claimantName":"William Cyrus","employerName":"City Of Little Rock","title":"CYRUS VS. CITY OF LITTLE ROCK AWCC# H208417 October 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CYRUS_WILLIAM_H208417_20251021.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CYRUS_WILLIAM_H208417_20251021.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208417 \n \nWILLIAM CYRUS, EMPLOYEE      CLAIMANT \n \nCITY OF LITTLE ROCK \nEMPLOYER         RESPONDENT \n \nCITY OF LITTLE ROCK/RISK \nMANAGEMENT RESOURCES,  \nINSURANCE CARRIER/TPA      RESPONDNET \n \nOPINION FILED OCTOBER 21, 2025 \nHearing before Administrative Law Judge, James D. Kennedy, on the 26\nth\n day of \nAugust, 2025, in Little Rock, Arkansas. \nClaimant is represented by Andy Caldwell, Attorney at Law, Little Rock, Arkansas. \nRespondents are represented by Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 26\nth\n day of August, 2025, to determine the issue \nof permanent partial disability (PPD) or in the alternative, if the Commission finds that it \ndoes not have sufficient information upon which to assign and assess the Claimant’s \npermanent   impairment, order   an IME   in   accordance   with   A.C.A.   11-9-511,   and \nadditionally that  the  Claimant  is also entitled  to reasonable  and  necessary  medical \ntreatment,  along  with attorney  fees,  with all  other  issues  reserved.  A  copy of  the  Pre-\nhearing Order filed June 17, 2025, was marked “Commission Exhibit 1” and made part of \nthe record without objection.  The Order provided that the parties stipulated the Arkansas \nWorkers’  Compensation has jurisdiction  of  the  claim and an employer/employee \nrelationship existed on November 25, 2022, that the claim was accepted as compensable, \nand that certain benefits were paid.  At the time of the hearing, the parties agreed that the \n\nWilliam Cyrus – H208417 \n2 \n \nRespondent’s figures were correct in regard to wages and that the Claimant’s average \nweekly wage was $474.63, which entitled him to temporary total disability and permanent \npartial disability in the amount of $316.00/$237.00 respectively.  \n The Claimant’s  and Respondent’s  contentions are set  out  in  their  respective \namended responses to the Pre-hearing questionnaire and made part of the record without \nobjection.  The Claimant  contends in  his Amended  Response  to  the  Pre-Hearing \nquestionnaire that he sustained compensable injuries as a result of a gunshot wound on \nor  about  November  25,  2022, while in  the  course  and  scope  of  his  employment.    The \nRespondents  accepted  the  claim  and provided medical  and  indemnity  benefits.    The \nClaimant has a permanent anatomical loss as a result of these wounds.  The Claimant \ncontends  he  is  entitled  to  permanent  partial  disability  benefits  for  his  injuries.    The \nClaimant  sought  an  evaluation  with  the  Functional  Testing  Centers  for  his  permanent \nimpairment and was assigned a 2% impairment rating which has been controverted by \nRespondents.  The Claimant is either entitled to the 2% rating or the Commission should \nassess impairment in accordance with Arkansas Law.  If the Commission finds that it is \nwithout sufficient information upon which to assess the Claimant’s impairment, it should \norder  an  Independent  Medical  Examination  in  accordance  with  A.C.A.  11-9-511.  \nClaimant also contends that the cost of the impairment evaluation with Functional Testing \nCenters  is  reasonable  and  necessary  medical  treatment  for  which  Respondents are \nresponsible. Claimant’s  attorney  is  entitled  to  attorney’s  fees  on  all  controverted \nindemnity.  All other issues are reserved    \nThe  Respondent’s  contend in   its Second Response   to   the   Prehearing \nQuestionnaire   that   all   appropriate   benefits were  paid  with  regard  to  Claimant’s \n\nWilliam Cyrus – H208417 \n3 \n \ncompensable injuries sustained on November 25, 2022.  Claimant’s treating physician, \nDr.  Bumpass,  indicated  that  he  reached  MMI  on  1/23/23  with  a  0%  impairment  rating.  \nClaimant’s rating evaluation performed by Functional Testing Centers is not medical \ntreatment, and Respondents should not be responsible for the same.  Likewise, an IME \nis  not  reasonable  and  necessary,  as  permanency  has  already  been  addressed  by \nClaimant’s treating physician.  \nThe sole witness to testify was the claimant, William Cyrus. The claimant submitted \ntwo exhibits without  objection, with Exhibit One consisting of medical records  with  an \nIndex of fifty-four pages. Claimant’s Exhibit Two consisted of Non-Medical Records with \nan Index that consisted of seven pages. The Respondents submitted one exhibit without \nobjection, consisting of documentary evidence with an Index consisting of fourteen pages.  \nFrom  a  review  of  the  record  as  a  whole, to  include  medical  reports  and  other  matters \nproperly before the Commission and having had an opportunity to observe the testimony \nand demeanor of  the witness,  the  following findings  of fact and  conclusions of  law are \nmade in accordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2. That an employer/employee relationship existed on November 25, 2022, when \nthe Claimant sustained injuries that were accepted as compensable, as a result \nof a gunshot wound. \n \n3. That at the time of the injury, the claimant was earning an average weekly wage \nof $474.63, sufficient for TTD/PPD rates of $316.00/$237.00 respectively. \n \n4. That Respondents accepted the claim and paid appropriate benefits.  \n \n\nWilliam Cyrus – H208417 \n4 \n \n5. That  the  Claimant  is  found  to  have  reached  maximum  medical  improvement \n(MMI) on January 23, 2023, with a 0% impairment rating as assigned by his \ntreating physician and that there is insufficient evidence to satisfy the required \nburden  of  proof  to  show  that the claimant is  entitled  to  a  permanent  partial \ndisability rating. \n \n6. That the Claimant has failed to satisfy the required burden of proof to prove by \na preponderance of the evidence that the additionally requested independent \nmedical  evaluation satisfies the  requirements  as  set  out  by  the  Arkansas \nWorkers’  Compensation  Act and that  the  evaluation is found  to  not  be a \nreasonable and necessary medical treatment.   \n \n7. That all remaining issues are moot. \n \n8. If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n The claimant, William Cyrus, testified that on November 25, 2022, he was working \nfor the HMP City Home Neighborhood Project with the city.  At the time of the accident, \n“We had pulled up to an address that we needed to clean, and I jumped out of the truck \nbefore the guy driving did.  And as I jumped out the truck, a black Charger drove up behind \nus and kind of pulled a little bit further to the side of us, and a guy came out and talked \nout the window and sat on the top of the hood and started firing a gun with a silencer on \nit, and that’s why I was shot because I never heard a sound.”  The claimant went on to \nstate that he was cleaning off the lot with a zero-turn mower when the man opened fired \non the city truck and he was ultimately struck, hitting him under his shoulder blades and \ncoming out the left side of his back. He was transported by ambulance to UAMS. He went \nto  Concentra, some  spinal  specialists, and  to  UAMS. He  went  on  to  state  that Dr. \nBumpass released him in January of 2023. He then requested a change of physician and \nstarted seeing Dr. Broussaud but stated he then lost his insurance. Additional treatment \n\nWilliam Cyrus – H208417 \n5 \n \nwas not authorized by the Respondents, but the Claimant was not requesting additional \ntreatment  at  the time of  the  hearing.  (Tr.  7 – 9) Claimant went  on  to  state  that he  had \nreceived treatment from Pain Treatment Centers and that he had a burning sensation in \nthe  middle,  boney, part  of  his  back.  (Tr.  10) Describing  his  back symptoms,  he  stated \n“Well, just the stiffness of my back on certain days. When  I  lay,  I  have  to  turn  myself \nconstant periodically. Just not a comfortable sleep at night.”  He is still working for the city \nthrough Arkansas Public Works. He stated he had not been back to the doctor because \nthe city did not provide insurance, but that he now had insurance. He went on to state \nthat he now works as a pothole filler. (Tr. 11) \n He  additionally  testified about going  to  the  Functional  Testing  Center where he \nwas assessed an impairment rating, and to his knowledge, they haven’t been paid. He \nwas asking for permanent partial disability. (Tr. 12)  \n Under cross examination, the claimant admitted that he started working for the city \nin April of 2019, and for a number of years had also worked for Black Bear Diner, where \nhe worked as a dishwasher. He thought that had ended in the first part of 2025. He had \nworked that job from the time of his injury until early 2025. He stated he had left that job \nbecause he was only getting about 15 hours a week and “it really wasn’t worth my time, \nthe traffic, getting through the traffic that I had to get there.” (Tr. 13, 14) He admitted as a \nresult of the gunshot, he had sustained a cracked rib, which had healed up on his own.  \nAdditionally,  his  lung  had  been  nicked  and  had  healed  up  on  his  own. He  admitted  to \nbeing taken off work for about two months and during that time he had received workers’ \ncompensation  benefits. He  also  admitted  that  was  about  how  long  his  treatment  had \nlasted, with the exception of the later treatment at Pain Treatment Centers. He received \n\nWilliam Cyrus – H208417 \n6 \n \na full duty release and then went back to his regular job. He switched to the new job, so \nhe could get 40 hours a week with insurance. (Tr. 15, 16) He also admitted he had stated \nin his deposition that he did not need help in his previous job nor with his current job filling \npotholes and had no restrictions from any doctor. (Tr. 18) \n The following questioning then occurred: \nQ.   And  you  said  at  some  point,  Doctor  Broussand  had  no  treatment  to  offer \n you, is that right? \nA.   Due to my insurance, no insurance. \nQ.  You told me that he indicated there was nothing else he could do. \nA.   Okay. \nQ.   Is that right? \nA.   Right. \nQ.   And I asked you was any other treatment recommended that you haven’t \n had. You told me nothing else has been recommended, is that true? \nA.   Right. \nQ.   You  had  discussed  with  me  in  the  deposition  that  you  sometimes  have \n some breathing difficulty maybe associated with the lung. \nA.  Yes. \nQ.   Okay.  I asked you in the deposition, other than the breathing difficulties that \n you told us about, do you have any other lasting problems because of the \n gunshot. Your response was, “I just have nightmares.” Is that correct? \nA.  Yeah, yeah. \nQ.   All  right.  We  next  discussed  later  in  the  deposition  your  evaluation  at \n Functional Testing Centers. You said that at the evaluation, you were asked \n to bend and turn to the side, is that right? \nA.   No. \nQ.   You said that you guessed that it was to see how your back was doing with \n the wound, is that right? \nA.   Yes. \nQ.   You didn’t lift anything, did you? \n\nWilliam Cyrus – H208417 \n7 \n \nA.   No. \nQ.   And you told me it took about 30 minutes, is that right? \nA.   Yes. \nQ.   And all you did was bend and turn, is that correct? \nA.   Bend, turn, and twist. \nQ.   We have some medical records dated January 5, 2023, from UAMS. \nA.   Uh-huh. \nQ.   That document shows that you reported doing well overall, and you felt like \n you were able to perform your daily functions without difficulty. Does that \n sound correct? \nA.   Yes. \nQ.   You were released at that point to full duty by the trauma physician, does \n that sound right? \nA.  Yes. (Tr. 18, 19) \n On redirect, the claimant stated that he did not recall any spirometry testing \nand  had  never  received  any  treatment  for  PTSD.  (Tr.  20) On  recross,  the  claimant \nadmitted that he had never actually been diagnosed with PTSD. (Tr. 21) \n Claimant’s Exhibit One provides  that  the  Claimant  was  taken  to  UAMS  on \nNovember  25,  2022,  and  received  an  orthopedic  consult  which  provided  for  no  acute \northopedic  spine  intervention  with  no  spinal  precautions. The  report  provided that  the \nclaimant arrived with two ballistic wounds to his back, with one on the right side and one \non the left side. Injuries included a thoracic spine fracture, with a right sided rib fracture.  \nThe CT of the chest, abdomen, and pelvis, provided for a comminuted fracture of the right \n8\nth\n rib as well as the transverse process and the spinous process of T8 vertebra.  Bilateral \npulmonary contusions were observed that were greater on the right side with a right sided \nhemothorax. An active hemorrhage was seen along the posterolateral 9\nth\n rib superficially, \nlikely  coming  from  the  9\nth\n intercostal  artery. No  acute  findings  were  found  within  the \n\nWilliam Cyrus – H208417 \n8 \n \nabdomen and pelvis. The reports provided that the Claimant was asked about PTSD type \nsymptoms and the Claimant stated that “he felt ok,” but would call if he wanted to talk to \ntrauma psychology. The report went further and provided under impression for gunshot \nwounds to both the right and the left side of the back, with contusions of both lungs, closed \nfracture of multiple ribs of the right side, and of the eighth thoracic vertebra.  The Claimant \nwas discharged on November 26, 2022.  He was instructed to return to the surgery clinic \nin two weeks. (Cl. Ex. 1, P. 1 – 24) \n The Claimant presented to Concentra December 1, 2022, in regard to his gunshot \nwounds. A physical therapy referral was made. (Cl. Ex. 1, P. 25 – 30) The Claimant then \npresented to the UAMS Surgery Clinic on December 8, 2022. The report provided that \nthe Claimant was doing well but had persistent pain over his back. Dr. Mathew Roberts \nopined that the Claimant should be monitored monthly and that as of December 8, 2022, \nthe Claimant was only cleared for light desk duty. (Cl. Ex. 1, P. 31 – 34) The Claimant \nthen  presented  to  UAMS  Orthopedic  Spine  Clinic  on  December  13,  2022. The  report \nprovided that the Claimant felt he was not walking as fast as he used to and that he should \nfollow up with the Surgery Clinic in about four weeks. Additionally, he could return to light \nduty, not lifting over 20 pounds. (Cl. Ex. 1, P. 35 – 44) The Claimant then returned to the \nUAMS Surgery Clinic on January 5, 2023. The report provided that the claimant had a full \nrange of motion in all of his extremities and that he could move them spontaneously. (Cl. \nEx. 1, P. 45 – 46) \n The Claimant presented to the UAMS Neurosurgery Clinic on January 23, 2023.  \nThe report provided that the Claimant had healed T8 fractures secondary to non-operative \ntreatment. Dr.  David  B.  Bumpass provided that  the  Claimant could return  to  work  on \n\nWilliam Cyrus – H208417 \n9 \n \nJanuary 24, 2023, with no work restrictions and further provided there was no need for \nan impairment rating. (Cl. Ex. 1, P. 47 – 51) A report from Functional Testing Centers, \nInc., dated March 7, 2025, provided the Claimant had a 2% impairment rating to the whole \nperson, due to his work-related injury. (Cl. Ex. 1, P. 52, 53) \n Claimants Exhibit Two consisted of a Pay Log Report and a bill from Functional \nTesting Centers addressed to the Claimant for the sum of $350.00. (Cl. Ex. 2, P. 1 – 6)  \n The  Respondents Exhibit  One  consisted of fourteen  (14)  pages  of documentary \nevidence  plus  an  index. An  X-ray  of  the  thoracic  spine  dated  December  13,  2022, \nprovided  that  the  x-ray  was  unremarkable  and  that  the  known  right  T8  transverse  and \nspinous process fractures were difficult to visualize. (Resp. Ex. 1, P, 1, 2) A release from \nUAMS dated January 5, 2023, provided that the claimant presented for a follow up for an \nevaluation for a return to work with full activity. Claimant was accompanied by his case \nmanager. The  report  provided  there  was  no  need  for  a  follow-up  and  was  signed  by \nBritney M Beumeler, APRN CNP. (Resp. Ex. 1, P. 3, 4) An x-ray of the thoracic spine on \nJanuary  23,  2023, which  was ordered  by  Dr.  David  Bumpass, provided  there  was  no \nsignificant interval change since the prior radiograph showed that the lungs were clear, \nand the cardio mediastinal silhouette was within normal limits. (Resp. Ex. 1, P. 5, 6) On \nJanuary 23, 2023, Dr. Bumpass issued a MMI report and a full duty release.  The report \nprovided that the claimant could return to work on January 24, 2023, with no restrictions.  \n(Resp. Ex. 1, P. 7- 13)  \n \n \n\nWilliam Cyrus – H208417 \n10 \n \n      DISCUSSION AND ADJUDICATION OF ISSUES \nThe claimant has the burden of proving by a preponderance of the evidence that \nhe is entitled to compensation benefits under the Arkansas Workers’ Compensation Law.  \nIn determining whether the Claimant has sustained his burden of proof, the Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party.  \nA.C.A. 11-9-704.  Wade v. Mr. Cavananugh’s, 298  Ark.  364,  768 S.W.  2d  521  (1989).  \nFurther,  the  Commission  has  the duty to  translate evidence on all  issues  before  it  into \nfindings  of  fact.   Weldon  v.  Pierce  Brothers  Construction  Co.,  54  Ark.  App.  344,  925 \nS.W.2d 179 (1996). This includes the Commission’s province to reconcile conflicting \nmedical evidence.  Arkansas Health Ctr. v. Burnett, 2018 Ark. App. 427, 558 S.W. 3d 408.   \nThe Claimant contends that he is entitled to permanent partial disability due to his \nwork-related  injury.    Permanent  impairment  is  any  permanent  functional  or  anatomical \nloss remaining after the healing period has been reached. Johnson v. General Dynamics, \n46 Ark. App. 188, 878 S.W.2d 411 (1994).  Any determination of the existence or extent \nof physical impairment shall be supported by objective and measurable physical findings. \nA.C.A.  11-9-704.  Objective  findings  are  those  findings  which  cannot  come  under the \nvoluntary  control  of  the  patient.  A.C.A.  11-9-102(16)(A)(i).    Although  it  is  true  that  the \nlegislature has required medical evidence to establish a compensable injury, it does not \nfollow   that   such   evidence   is   required   to   establish   each   and   every   element   of \ncompensability. Stephens  Truck  Lines  v.  Millican, 58  Ark.  App.  275,  950  S.W.2d  472 \n(1997).    Medical  opinions  addressing  impairment  must  be  stated  with  a  reasonable \ndegree  of  medical  certainty.  A.C.A.  11-9102(16)(B).    Permanent  benefits  shall  be \nawarded only upon a determination that the compensable injury was the major cause of \n\nWilliam Cyrus – H208417 \n11 \n \nthe disability or impairment. A.C.A. 11-9-102(f)(ii)a. “Major cause” means more than fifty \npercent (50%) of the cause. A.C.A. 11-9 -102 (14). \nIn the present matter, the treating physician at UAMS, Dr. David Bumpass, opined \non January 23, 2023, that the Claimant had reached MMI and fully released him, providing \nthat the Claimant could return to work with no restrictions.  A little over two years later, \nthe Claimant elected to present to Functional Testing Centers on March 7, 2025, and they \nissued a report that the Claimant was in fact 2% disabled. The Commission has the duty \nto weigh evidence, and the resolution of conflicting evidence is a question of fact for the \nCommission. It is well settled that the Commission has the authority to accept or reject \nmedical  opinions  and  the  authority  to  determine  its  medical  soundness  and  probative \nforce.  Williams v. Ark. Dept. of Community Correction, 2016 Ark. App. 427, 502 S.W.3d \n530 (2016). Here the treating physician opined that the claimant suffered no restrictions \nand could return to work. Additionally, the Claimant testified that he now works at a job \nfilling potholes, a job that is clearly labor intensive, and that he performs his duties without \nany assistance. Once he had returned to work after the unfortunate shooting incident, he \nalso admitted that he had worked two jobs for a period of time. The report from Functional \nTesting Centers was over two years after the work-related shooting, and clearly multiple \nintervening factors could have come into play during that period. Based upon the available \nevidence, there is no alternative but to find that there is insufficient evidence to satisfy the \nrequirement that the Claimant is entitled to permanent partial disability. \nThe  claimant  requests in  the  alternative that  if  the  Commission  finds  that  it  is \nwithout sufficient information or evidence to find that the Claimant is entitled to permanent \npartial disability, it should order an Independent Medical Examination in accordance with \n\nWilliam Cyrus – H208417 \n12 \n \nA.C.A. 11-9-511. The plain language of A.C.A. 11-9-511 (a) and A.C.A. 11-9-811 does \nnot authorize the Arkansas Workers’ Compensation Commission to sua sponte, order an \nindependent medical examination after the parties litigated compensability and additional \nbenefits. See Burkett v. Exxon Tiger Mart, Inc., 2009 Ark. App. 93, 304 S.W.3d 2 (2009) \nand Sea Ark Marine, Inc. v. Pippinger, 2010 Ark. App. 13, (2010). Clearly, the parties are \nin the process of litigating benefits, but it is also clear that the law places some limitations \non the Commission to order an independent medical examination. Here, the Claimant has \nasked for an independent medical examination in the alterative, but it is over two years \nfrom the date when the treating physician found the Claimant could return to work with no \nrestrictions and the Claimant admitted he was able to perform a physically intensive job \nwith no assistance. The fact that the Respondent is only responsible for medical services \nwhich  are  causally  related  to  the  compensable  injury,  and the undeniable  fact  that the \nadditional requested independent  medical  examinations is at  least two  years  after  the \nClaimant  was  released  by  his treating  physician at  MMI to  return  to  work  with  no \nlimitations, there is no alternative but to find that the independent medical examination \nrequested in the alternative by the claimant is not reasonable and necessary.   \nAdditionally, since the Claimant’s actual visit  to  Functional  Testing  Centers  was \nover  two  years  after  the  claimant  was found  to  be  at MMI  and Claimant was released \nwithout restrictions to return to work by his treating physician, there is no alternative but \nto find that there is insufficient evidence to require the Respondents to pay for the earlier \nindependent  medical  examination and  the  earlier  independent  medical  examination is \nalso found to not be reasonable and necessary. The Claimant bears the burden of proof \nin  establishing  entitlement  to  benefits  under the Arkansas Workers’ Compensation Act \n\nWilliam Cyrus – H208417 \n13 \n \nand  must  sustain  that  burden  by  a  preponderance  of  the  evidence. Dalton  v.  Allen \nEngineering Co., 66 Ark. App 260, 635 S.W.2d 543.    \n After reviewing the above evidence and the applicable law, and after weighing the \nevidence impartially, without giving the doubt to either party, there is no alternative but to \nfind  that  the  claimant  has failed  to satisfy the  required burden  of  proof  to  prove by  a \npreponderance of the credible evidence that the that the Claimant is entitled to permanent \npartial  disability. Additionally, there  is  insufficient  evidence  to  satisfy  the  evidentiary \nrequirements  for  the  Commission  to  order  an independent  medical  examination as \nrequested by the claimant. All other issues are moot. If not already paid, the Respondents \nare ordered to pay the cost of the transcript forthwith. \n IT IS SO ORDERED. \n         ___________________________ \n      JAMES D. KENNEDY  \n      Administrative Law Judge","textLength":24034,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208417 WILLIAM CYRUS, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK EMPLOYER RESPONDENT CITY OF LITTLE ROCK/RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDNET OPINION FILED OCTOBER 21, 2025 Hearing before Administrative Law Judge, James D. Kennedy, on the...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["shoulder","back","thoracic","fracture"],"fetchedAt":"2026-05-19T22:35:53.181Z"},{"id":"alj-H206340-2025-10-20","awccNumber":"H206340","decisionDate":"2025-10-20","decisionYear":2025,"opinionType":"alj","claimantName":"Librado Martinez","employerName":"Russellville School District","title":"MARTINEZ VS. RUSSELLVILLE SCHOOL DISTRICT AWCC# H206340 October 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MARTINEZ_LIBRADO_H206340_20251020.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARTINEZ_LIBRADO_H206340_20251020.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H206340 \n \nLIBRADO MARTINEZ, Employee CLAIMANT \n \nRUSSELLVILLE SCHOOL DISTRICT, Employer RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT \n \n \nNUNC PRO TUNC ORDER FILED OCTOBER 20,2025  \n \nThe Commission is authorized to correct clerical errors pursuant to A.C.A. §11-9-\n713.  This is a proper case to exercise that authority. \nI find that a clerical error exists in the Opinion and Order filed on July 14, 2025. \nThe Opinion incorrectly states the AWCC file number to be H203260. The correct AWCC \nfile number should be H206340. \nIn all other aspects, the Opinion and Order shall remain the same and shall not be \notherwise affected. \nIT IS SO ORDERED. \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":837,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H206340 LIBRADO MARTINEZ, Employee CLAIMANT RUSSELLVILLE SCHOOL DISTRICT, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT NUNC PRO TUNC ORDER FILED OCTOBER 20,2025 The Commission is authorized to correct clerical errors pursuant to A.C.A....","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:44.669Z"},{"id":"alj-H500803-2025-10-17","awccNumber":"H500803","decisionDate":"2025-10-17","decisionYear":2025,"opinionType":"alj","claimantName":"Verlencia Gatewood","employerName":"Trinity Rail Maintenance Svcs","title":"GATEWOOD VS. TRINITY RAIL MAINTENANCE SVCS. AWCC# H500803 October 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Gatewood_Verlencia_H500803_20251017.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Gatewood_Verlencia_H500803_20251017.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H500803 \n \n \nVERLENCIA GATEWOOD, EMPLOYEE CLAIMANT \n \nTRINITY RAIL MAINTENANCE SVCS., \n EMPLOYER RESPONDENT \n \nACE AMERICAN INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 20, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 17, 2025, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se. \n \nRespondents represented  by  Mr. Jason  M. Ryburn,  Ryburn  Law  Firm, Attorneys \nat Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on October  17,  2025, in \nJonesboro,  Arkansas.    Claimant  appeared at  the  hearing and  gave  testimony.  \nAdmitted  into  evidence  was Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”), forms,   pleadings,   and \ncorrespondence related to this claim, consisting of eight pages. \n\nGATEWOOD – H500803 \n \n2 \n \n The record shows the following procedural history: \n Per  the  Form  AR-C that Claimant filed on February  6,  2025,  Claimant \npurportedly suffered an injury that she described as follows: \nDeveloped a fungal infection on my feet that went up to the knees \nof  the  front of my  legs.    This  infection  came  from  the  build-up  of \nrainwater in the shop and mixed with rodent feces and tobacco spit \nfrom employees. \n \nShe  checked  the  boxes  of  the  form  to  indicate  that  she  was  seeking  medical \ntreatment, temporary total disability benefits, rehabilitation, and an attorney’s fee \n(curious in light of the fact that she was pro se).  According to the Form AR-2 that \nwas filed  on February  21,  2025, Respondents controverted  the claim in  its \nentirety. \n The record reflects that nothing further took place on the claim until August \n11, 2025.  On that date, Respondents filed the instant motion, asking for dismissal \nof the claim because Claimant “has taken no action in the past 6 months to further \nthis claim.”  The file was assigned to me on August 12, 2025; and on August 13, \n2025,  my  office wrote  Claimant,  asking  for  a  response  to  the  motion within  20 \ndays.   The  letter  was  sent  by  first  class and  certified mail  to the Jonesboro \naddress for Claimant that  was listed  in  the  file  and  on  her Form  AR-C.  The \ncertified  letter was  returned  to  the  Commission,  unclaimed, on September 9, \n2025; but the first-class letter was not returned.  On September 4, 2025, a hearing \non  the  Motion  to  Dismiss  was  scheduled  for October  17,  2025,  at 12:00 p.m.  at \nthe  Craighead  County  Courthouse  in  Jonesboro.   The  certified  mailing  of  the \n\nGATEWOOD – H500803 \n \n3 \n \nNotice of Hearing to Claimant was claimed by someone with an illegible signature; \nand the first-class mailing was not returned. \n The  hearing  took  place  as  scheduled.    Both  parties  appeared,  and \nClaimant  testified.   Respondents argued  for  dismissal  under AWCC  R.  099.13 \n(now  codified  at  11  C.A.R. § 25-110(d)) and  Ark.  Code  Ann. § 11-9-702(a)(4) \n(Repl. 2012). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Respondents  have not  proven  by  a preponderance  of the  evidence \nthat  Claimant  has  failed  to  prosecute  her claim  under 11  C.A.R. § \n25-110(d). \n4. Respondents  have not  proven  by  a preponderance  of the  evidence \nthat  this  claim  should  be  dismissed  under  Ark.  Code  Ann.  §  11-9-\n702(a)(4) (Repl. 2012). \n\nGATEWOOD – H500803 \n \n4 \n \n5. The Motion to Dismiss is hereby denied. \n6. Claimant has requested a hearing on the issue of her entitlement to \ninitial benefits. \n7. This claim will proceed to a hearing on the merits. \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n In turn, Ark. Code Ann. § 11-9-702(a)(4) (Repl. 2012) reads: \nIf within six (6) months after the filing of a claim for compensation no \nbona  fide  request  for  a  hearing  has  been  made  with  respect  to  the \nclaim,  the  claim may, upon  motion and  after  hearing,  be  dismissed \nwithout  prejudice  to  the  refiling  of  the  claim within  limitation  periods \nspecified in subdivisions (a)(1)-(3) of this section. \n \n(Emphasis added) \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \n\nGATEWOOD – H500803 \n \n5 \n \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n A claimant’s testimony is never considered uncontroverted.  Nix  v. Wilson \nWorld  Hotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting  evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n Claimant testified that the reason that she had not requested a hearing on \nher claim after its filing was that she was unaware that she had to do so.  She had \nmultiple contacts with the Commission’s Legal Advisor Division; but she had not \ngotten  satisfactory  answers  to  her  questions.    Claimant  requested  a  hearing  on \nher claim, in the event that it is not dismissed. \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  motion  to  dismiss  hearing \nunder § 25-110(d), she has not yet abridged that rule.  By the same token, I find \nthat while § 11-9-702(a)(4) provides that a claim “may” (clearly intending that the \nadministrative  law  judge  has  discretion  in  the  matter)  be  dismissed  for  failure  to \n\nGATEWOOD – H500803 \n \n6 \n \nrequest a hearing within six months of the filing of the claim, dismissal is not yet \nwarranted here.  The Motion to Dismiss is thus denied. \n Prehearing  questionnaires  will  be  immediately  issued  to  the  parties;  and \nthis matter will proceed to a full hearing on the merits. \nIV.  CONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby respectfully denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7803,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H500803 VERLENCIA GATEWOOD, EMPLOYEE CLAIMANT TRINITY RAIL MAINTENANCE SVCS., EMPLOYER RESPONDENT ACE AMERICAN INS. CO., CARRIER RESPONDENT OPINION FILED OCTOBER 20, 2025 Hearing before Administrative Law Judge O. Milton Fine II on October 17, 2025, in Jonesb...","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:42.606Z"},{"id":"alj-H305255-2025-10-16","awccNumber":"H305255","decisionDate":"2025-10-16","decisionYear":2025,"opinionType":"alj","claimantName":"Seth Stanley","employerName":"Novo Building Products LLC","title":"STANLEY VS. NOVO BUILDING PRODUCTS LLC AWCC# H305255 October 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/STANLEY_SETH_H305255_20251016.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STANLEY_SETH_H305255_20251016.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n   \n CLAIM NO. H305255 \nSETH A. STANLEY, EMPLOYEE CLAIMANT \n \nNOVO BUILDING PRODUCTS LLC, EMPLOYER RESPONDENT \n \nCHARTER OK FIRE INSURANCE COMPANY, CARRIER/TPA RESPONDENT \n \n \n OPINION FILED OCTOBER 16, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope \nCounty, Arkansas. \n \nClaimant represented by GARY DAVIS, Attorney,  Little Rock, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney,  Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  July 28, 2025, the above captioned claim came on for a hearing at Russellville, Arkansas. \nA pre-hearing conference was conducted on May 22, 2025, and a pre-hearing order was filed on that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2.  All prior Opinions are res judicata. \n            3.  The employee/employer/carrier relationship existed on August 8, 2023. \n            4.  Claimant sustained a compensable injury on August 8, 2023. \n            5. The compensation rate is $564.00 for temporary total disability.  \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \n\nStanley-H305255 \n2 \n \n \nwere limited to the following: \n           1.  Whether claimant is entitled to underpayment of temporary total disability benefits from    \nthe prior award.  \n           2  Whether claimant is entitled to statutory penalties for untimely payment of prior award.  \n           3   Whether claimant is entitled to mileage reimbursement. \n           4  Attorney’s fee on unpaid indemnity benefits. \n All other issues are reserved by the parties. \n The claimant contends that “He sustained admitted compensable injuries. A hearing was held \nDecember 17, 2024, pursuant to which was issued an Opinion February 6, 2025, awarding claimant \ncertain temporary disability benefits. Respondents did not appeal the decision within 30 days, nor did \nthey pay benefits within 15 days of the finalization of the award. The awarded benefits were not only \nwrongly  paid,  but  they  were  not  timely  paid. Therefore,  statutory  late  payment  penalty  is  sought. \nFurther,  claimant  has  submitted  mileage  reimbursement  expense  requests,  which  respondents  have \nfailed  or  refused  to  pay. These  matters  have  been  controverted. Claimant’s attorney respectfully \nrequests that any attorney’s fee owed by claimant on controverted benefits paid by award or otherwise \nbe deducted from claimant’s benefits and paid directly to claimant’s attorney by separate check, and \nthat any Commission’s Order direct the respondent to make payment of attorney’s fees in this \nmanner.” \n The respondents contend that “They have correctly paid benefits on this claim.” \n           From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n\nStanley-H305255 \n3 \n \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on May \n22, 2025, and contained in a pre-hearing order filed on that same date are hereby accepted as fact. \n 2.   Claimant  met  his  burden  of  proof  that  he was  underpaid  his  past  due temporary  total \ndisability benefits in the amount of $2,865.73.  \n 3.    Claimant met his burden of proof that respondent did not pay the previous award in this \ncase  within  45  days  of  the  order  and is  entitled  to a  20%  penalty  on  those  unpaid  benefits  in  the \namount of $2,305.60. \n 4.         Claimant  met  his  burden  of  proof  that  he  is  entitled  to reimbursement  for  mileage \nexpenses in the amount of $143.99 \nHEARING TESTIMONY \n \n Claimant  was  the  only  witness  to  testify  at  this  hearing. He  explained  that  following  the \nprevious hearing in this matter, he believed he was owed $10,680.39 after his portion of his attorney’s \nfee was withheld. Claimant testified that he had received only $7,221.27, which was paid on March 26, \n2025. Claimant maintained an underpayment of $3,459.12 and requested a 20% penalty on the entire \namount  of  $12,206.61,  because  the deposit  of  $7,221.27  was  made 47 days  after  the  date  of  the \nFebruary 6, 2025, order awarding him those benefits.  \n Claimant also requested mileage that had not been paid in the amount of $156.42.  \n On cross-examination, claimant conceded that he may have miscalculated one of his mileage \nrequests but was certain that he had not received $3,459.12, which represents the unpaid benefits.    \n \n \n\nStanley-H305255 \n4 \n \n \nREVIEW OF THE EXHIBITS \n \n Claimant  submitted  eighteen  pages  of exhibits,  including  my opinion  of February  6,  2025, \ncorrespondence  with  the carrier  and  submitted  requests  of  mileage  reimbursement. Respondent \nsubmitted two exhibits totaling 10 pages; the first exhibit was a three-page spreadsheet that had to be \ncopied in three pages each for a total of 9 pages; the second was a handwritten calculation of what \nrespondent believed the testimony and records supported.  \nADJUDICATION \n \n There are three components to this claim. First, claimant maintains that based on the previous \nOrder of this court, he was underpaid $3,459.12 (Tr. 7) for past due benefits. Second, because he was \nnot paid the amount awarded in a timely fashion, the 20% penalty as provided by 11-9-802(c) applies. \nThe third portion of the claim involves unpaid mileage.  \nUnderpayment: \n As per my order of February 6, 2025, respondents had underpaid claimant because temporary \ntotal  disability  benefits were paid  at  an  incorrect  rate  and because payments  of  permanent  partial \ndisability benefits were made at a time that claimant should have received temporary total disability. \nAt the time of the last hearing, $40,044.00 should have been paid but only $28,516.00 had been sent \nto claimant. Therefore, claimant should have received a payment of $11,528.00 for his unpaid benefits. \nRespondent owed one-half of the attorney’s fee on that sum, with claimant being responsible for the \nother half, and after deducting $1,441.00 from claimant’s proceeds, he should have received a check \nfor $10,087.00. (Cl. X, page 10). On March 26, 2025, claimant received a payment in the amount of \n$7,221.27 (Tr. 7). There was no explanation as to why $7,221.27 was submitted rather than the full \namount  of  $10,087.00. Claimant therefore  is  owed  $2,865.73 for  unpaid  temporary  total  disability \nbenefits as per my previous order.  \n\nStanley-H305255 \n5 \n \n \nPenalty:   \nMy opinion awarding unpaid benefits was rendered on February 6, 2025. Because it was not \nappealed, the payment of those unpaid indemnity benefits was due 45 days after my order, Johnson v. \nAmerican Pulpwood Co., 38 Ark. App. 6, 826 S.W.2d 827 (1992). It is 47 days between February 6, 2025, \nand March 26, 2025, and as such, the payment was not made in a timely fashion. Claimant is entitled \nthe 20% penalty on the unpaid installment payments of $11,528.00 as provided by Ark. Code. Ann. \n§11-9-802(c), or $2,305.60. \nMileage claim \n Claimant  requested  $156.47  for  unpaid  mileage reimbursements. According  to  claimant, \nrespondent began using a GPS program to recalculate the number of miles it would pay for trips to \nand from his medical treatment, and therefore did not pay his claims as submitted.  Claimant testified \nhe was using the shortest route to get to the medical providers. Respondent did not present anything \nto demonstrate the accuracy of bingmaps.com as recited in its April 18, 2025, letter of explanation to \nclaimant. I accept the figures submitted by claimant\n1\n. However, in reviewing claimant’s mileage log \n(Cl. X, page 13), I believe he made a mistake on his entry of April 11, 2025, because it is not 58 miles \nfrom his home to an address in Russellville, Arkansas; other entries to Russellville are submitted as 34 \nmiles. Claimant admitted that his destination on April 11, 2025, was a short distance from the other \nRussellville location. Therefore, I am reducing that one entry from 58 miles to 34 miles for the round \ntrip; at $.52 per mile, which is a deduction of $12.48 for a total owed for mileage of $143.99. \n The amount of the underpayment, the penalty on unpaid benefit and the unpaid mileage total \n$5,315.32.  \n \n1\n I am familiar with how GPS programs work; rather than showing the route one would take via interstate, these often \nuse state highways and side roads to shave a few miles of off the total miles owed. I do not require a person to drive \na longer time than the most convenient trip would take.  \n\nStanley-H305255 \n6 \n \n \n \nORDER \n \n Respondents  are  directed  to  pay  benefits  in accordance  with  the  findings  of  fact  set  forth \nherein  this  Opinion.  All  accrued  sums  shall  be  paid  in  lump  sum  without  discount,  and  this award \nshall earn interest at the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \n Claimant’s attorney announced at the hearing that he was waiving his attorney’s fee for \nbringing this action.  \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":9730,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305255 SETH A. STANLEY, EMPLOYEE CLAIMANT NOVO BUILDING PRODUCTS LLC, EMPLOYER RESPONDENT CHARTER OK FIRE INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 16, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope ...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:40.532Z"},{"id":"full_commission-G702350-2025-10-15","awccNumber":"G702350","decisionDate":"2025-10-15","decisionYear":2025,"opinionType":"full_commission","claimantName":"Nancy Heitman","employerName":"Arkansas Department Of Correction","title":"HEITMAN VS. ARKANSAS DEPARTMENT OF CORRECTION AWCC# G702350 October 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Heitman_Nancy_G702350_20251015.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Heitman_Nancy_G702350_20251015.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G702350 \nNANCY HEITMAN (FORMERLY COONEY), EMPLOYEE      CLAIMANT \nARKANSAS DEPARTMENT OF CORRECTION/ \n(McPHERSON UNIT),  \nEMPLOYER                               RESPONDENT No. 1 \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nTPA                  RESPONDENT No. 1 \n \nDEATH & PERMANENT TOTAL DISABILITY \nTRUST FUND      RESPONDENT No. 2 \n \n \nOPINION FILED OCTOBER 15, 2025 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney, \nLittle Rock, Arkansas.  \nRespondent No. 1 represented by the HONORABLE CHARLES McLEMORE \nAttorney, Little Rock, Arkansas.  \nRespondent No. 2 not participating in this proceeding.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed March 21, 2025.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law:  \n\n2 \nHEITMAN – G702350 \n1. The Arkansas Workers' Compensation \nCommission has jurisdiction over this claim.  \n \n2. The stipulations as set forth above are accepted.  \n \n3. The Claimant failed to prove by a preponderance \nof the evidence that she is entitled to permanent \npartial disability benefits.  \n \n4. The Claimant failed to prove by a preponderance \nof the evidence that she is entitled to the costs \nassociated with the impairment evaluation.   \n \n5. The Claimant failed to prove by a preponderance \nof the evidence that she is entitled to an attorney’s \nfee.  \n \nWe have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s March 21, \n2025, decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \n \n \n \n \n\n3 \nHEITMAN – G702350 \nIT IS SO ORDERED.  \n \n \n \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n                       _______________________________ \n     MICHAEL R. MAYTON, Commissioner","textLength":2643,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G702350 NANCY HEITMAN (FORMERLY COONEY), EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTION/ (McPHERSON UNIT), EMPLOYER RESPONDENT No. 1 PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT No. 1 DEATH & PERMANENT TOTAL DISABILITY...","outcome":"granted","outcomeKeywords":["affirmed:2","granted:3","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.972Z"},{"id":"alj-H408000-2025-10-15","awccNumber":"H408000","decisionDate":"2025-10-15","decisionYear":2025,"opinionType":"alj","claimantName":"Carlos Gomes","employerName":"C M Construction, LLC","title":"GOMEZ VS. C M CONSTRUCTION, LLC AWCC# H408000 October 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GOMES_CARLOS_H408000_20251015.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GOMES_CARLOS_H408000_20251015.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H408000 \n \nCARLOS REINA GOMEZ, Employee CLAIMANT \n \nC M CONSTRUCTION, LLC, Employer RESPONDENT \n \nWELLFLEET NEW YORK INS. CO., Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 15, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant represented by AARON L. MARTIN, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n On September  17,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at \nSpringdale,  Arkansas.      A  pre-hearing  conference  was  conducted  on August  6,  2025, \nand  a pre-hearing order  was  filed on that  same  date. A  copy  of  the  Pre-hearing  Order \nhas  been  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.    The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  the \nwithin claim. \n2.  The  employee/employer/carrier  relationship  existed  among  the  parties  on \nDecember 5, 2024. \n3. Respondents have controverted this claim in its entirety. \n\nGomez – H408000 \n \n-2- \n4.  The  claimant  was  earning  an  average  weekly  wage  of  $788.87  which  would \nentitle  him  to  compensation  at  the  weekly  rates  of  $519.00  for  total  disability  benefits \nand $384.00 for permanent partial disability benefits. \nThe issues to be litigated at the forthcoming hearing are as follows: \n1.  Compensability of injury to claimant’s low back and right hip on December 5, \n2024. \n2. Related medical. \n3. Claimant’s entitlement to temporary total disability benefits from December 6, \n2024, through a date yet to be determined.  \n4. Attorney’s fee. \nThe claimant contends  that he sustained a compensable injury to lower back on \n12/5/24 when he fell from a roof. In addition, the claimant contends that he is entitled to \nreasonable and necessary medical treatment in connection with his compensable injury. \nThe  claimant  further  contends  that  he  is  entitled  to  temporary  total  disability  benefits \nfrom the date of accident through a date to be determined by the Commission. Finally, \nthe  claimant  contends  that  he  is  entitled  to  controverted  attorney  fees  for  indemnity \nbenefits awarded and any and all future indemnity benefits approved or awarded. \nThe respondents contend that claimant did not suffer a compensable injury to his \nlow back on December 5, 2024. \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n\nGomez – H408000 \n \n-3- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on August 6, 2025, and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n 2. Claimant  has  met  his  burden  of  proving  by  a  preponderance  of  the  evidence \nthat  he  suffered  a  compensable  injury  to  his  low  back  and  right  hip  on  December  5, \n2024. \n 3.  Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided to claimant for his compensable injuries. \n 4.  Claimant  has  met  his  burden  of  proving  by  a  preponderance  of  the  evidence \nthat he is entitled to payment of one day of temporary total disability benefits. \n 5.  Claimant’s  attorney  is  entitled  to  an  attorney  fee  on  all  unpaid  indemnity \nbenefits. \n \nFACTUAL BACKGROUND \n Claimant  is  a 46-year-old  man  who performed  construction  work  for  respondent \nbeginning  in  May  2024.  On  December  5,  2024,  claimant  was  using  a  jackhammer  to \ndemolish   some   concrete   at   the   Springdale   library   when   he   tripped   and   fell \napproximately  12  feet  onto  the  ground.  After  this  accident,  claimant  was  taken  to  the \nemergency room at Northwest Medical Center in Springdale where he was hospitalized \nfrom December 5, 2024, through December 13, 2024.  \n Claimant’s  primary  complaints  immediately  after  the  accident  included  severe \nback  pain  and  right  ankle  pain.  While  in  the  hospital,  claimant  underwent  a  number  of \n\nGomez – H408000 \n \n-4- \ntests;  including  CT  scans  of  the  brain,  cervical  spine,  chest,  abdomen,  and  pelvis.  He \nalso  underwent  MRI  scans  of  the  pelvis,  cervical  spine,  thoracic  spine,  and  lumbar \nspine. These tests were interpreted as negative.  \n While  in  the  hospital,  claimant  underwent  a  telephonic  consultation  with  a \nneurologist  who  opined  that  claimant  might  be  suffering  from  neurapraxia  of  the  right \nlumbosacral  plexus.  The  neurologist  stated  that  neurapraxia  is  the  mildest  form  of \nperipheral  nerve  injury  and  that  it  is  generally  caused  by  localized  compression, \nstretching   or   ischemia   without   disruption   of   the   nerve   structure. He   stated   that \nneurapraxia  usually  resolves  in  days  to  weeks  with  treatment  including  rest;  physical \ntherapy; and the use of NSAIDS for pain and inflammation. \n Claimant’s discharge summary dated December 13, 2024, indicates that based \non the neurologist’s suspicion of neurapraxia, outpatient physical therapy and follow-up \ncare  at  Community  Clinic  would  be  recommended.  Subsequent  medical  records \nindicate  that  claimant did  receive  care and  physical  therapy  from  Community  Clinic  for \nneurapraxia.  The  medical  records  also  indicate  that  claimant  made  complaints  of  right \ngroin pain. Due to claimant’s continued complaints, Kathy Mayhew, D.O. at Community \nClinic recommended that claimant undergo an evaluation by an orthopedic specialist.  \n On  March  5,  2025,  claimant  was  evaluated  by  Dr.  Marcus  Heim,  D.O.  at  the \nOrthopedic Center of Northwest Arkansas. Dr. Heim noted claimant’s complaints of pain \ninvolving  his  right  hip  and  was  concerned  that  claimant  may  suffer  from  avascular \nnecrosis of the femoral head. He ordered an MRI scan of the right hip and an EMG/NCV \nof the right lower extremity. Dr. Heim assessed claimant’s condition at that time as right \nhip pain and right lumbar radiculopathy.  \n\nGomez – H408000 \n \n-5- \n Claimant  underwent  the  right  hip  MRI  scan  on  March  26,  2025,  and  it  was \ninterpreted  as  showing  degenerative  changes  as  well  as  mild  fraying  of  the  anterior \nsuperior right labrum. The EMG/NCV of the right lower extremity was performed by Dr. \nMiles Johnson on March 31, 2025, with the following assessment: \nEssentially  normal  electrodiagnostic  study  of  the  right  lower \nextremity  except  for  the  diffusely  decreased  interference \npattern and no active function noted in the right EHL. These \ntypes of findings could be seen secondary to pain or lack of \neffort.  There  are  no  findings  to  suggest  a  radiculopathy, \nplexopathy,  generalized  peripheral  neuropathy  or  peripheral \nnerve entrapment syndrome or injury. \n \n Following  these  tests,  claimant  returned  to  Dr.  Heim.  In  his  report  of  May  14, \n2025, Dr. Heim stated that the MRI scan of the hip showed early degenerative changes \nbut no evidence of acute osseous pathology or avascular necrosis. He also noted that \nthe EMG/NCV was essentially normal with the exception of the “lack of recruitment of \nfibers to the EHL.” Dr. Heim also stated that claimant continued to see improvement in \nhis neurologic recovery of his right lower extremity. Finally, Dr. Heim recommended that \nwith  respect  to  the  hip,  claimant  undergo  an  articular  injection  to  see  if  his  symptoms \nimproved. He noted that if claimant’s symptoms did not improve, claimant might need to \nbe screened for a possible right hip labral tear. \n Respondent has denied compensability of the claim and as a result, claimant has \nfiled  this  claim  contending  that  he  suffered  a  compensable  injury  to  his  low  back  and \nright  hip on  December  5,  2024.  He  requests  payment  of medical  treatment,  temporary \ntotal disability benefits, and a controverted attorney fee. \n \n \n\nGomez – H408000 \n \n-6- \nADJUDICATION \n Claimant  contends  that  he  suffered  a  compensable  injury  to  his  low  back  and \nright hip as a result of a fall on December 5, 2024. Claimant’s claim is for a specific \ninjury, identifiable by time and place of occurrence.  \nIn order to prove a compensable injury as the result of a specific incident that is \nidentifiable   by   time   and   place   of   occurrence,   a   claimant   must   establish   by   a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  met  his  burden  of  proving  by  a \npreponderance  of  the  evidence  that  he  suffered  a  compensable  injury  to  his  low  back \nand right hip. \n First,  I  find  that  claimant  has  met  his  burden  of  proving  by  a  preponderance  of \nthe evidence that the injury arose out of and in the course of his employment and that \nthe  injury  was  caused  by  a  specific  incident, identifiable  by  time  and  place  of \noccurrence. Here,  claimant  testified  that  on  December  5,  2024,  he  was  using  a \njackhammer to break up concrete when he tripped and fell some 12 feet to the ground. \nClaimant  was  taken  to  the  emergency  room  after  that accident, and  I  note  that  the \n\nGomez – H408000 \n \n-7- \nhistory  contained  in  the  emergency  room  medical  records  is  consistent  with  the \nclaimant’s testimony.  \n Accordingly, I find that claimant has proven by a preponderance of the evidence \nthat  his  injury  arose  out  of  and  in  the  course  of  employment  and  that  the  injury  was \ncaused by a specific incident, identifiable by time and place of occurrence.  \n I  also  find  that  claimant  has  proven  that  his  injury  caused  internal  or  external \nharm to his body that required medical services or resulted in disability and that he has \noffered medical evidence supported by objective findings establishing an injury. \n As  previously  noted,  claimant  underwent  multiple  tests  at  the  emergency  room \nand during his hospitalization that were interpreted as negative. However, those medical \nrecords  also  contain  numerous  notations  of  claimant  being  given  Flexeril  for  muscle \nspasms.  For  example,  the  medical  records  indicate  the  claimant  was  given  some  pain \nmedication by IV and “in addition to Flexeril for muscle spasms...”. \n Recently,  in Nucor  Yamato  Steel  Co  v  Shelton,  2025 Ark.  App.  249,  _____ SW \n3d _____, the Arkansas Court of Appeals declined to overrule its prior opinion in Melius \nv  Chapel  Ridge  Nursing  Center,  LLC,  2021  Ark.  App.  61, 618  SW.  3d  410, that  a \ndiagnosis of lumbar sprain along with prescribed treatment of medication for “muscle \nspasms” is sufficient to establish objective findings of a compensable injury. In Shelton, \nas  in  the  present  case,  medical  testing  did  not  reveal  an  acute  injury.  However,  in \nShelton, the claimant was prescribed the muscle relaxer Flexeril for muscle spasms. In \nreaching  its  decision,  the  Court  noted  that  there  was  no  requirement  that  a  doctor  or \nmedical  provider  observe  muscle  spasms  before  the  injury  can  be  compensable.  The \nCourt further noted that a doctor would not prescribe medications for muscle spasms if \n\nGomez – H408000 \n \n-8- \nthe  doctor  did  not  believe  muscle  spasms  were  present.  Accordingly,  the  Court  found \nthat  in Shelton the claimant’s diagnosis of a lumbar sprain along with the prescribed \ncourse of medication for muscle spasms, physical therapy, and pain management was \nsufficient to establish objective findings. \n Likewise in this case, while claimant’s testing was negative, he was prescribed \nFlexeril   for   muscle   spasms.   He   was   also   prescribed   physical   therapy   and   was \ndiagnosed  by  Dr.  Heim  as  suffering  from  lumbar  radiculopathy.  Thus,  these  findings \nconstitute objective findings.  \n I also note that the MRI scan of claimant’s right hip dated March 26, 2025, was \ninterpreted as showing mild fraying of the anterior superior right labrum. This would also \nqualify as an objective finding.  \n Accordingly, based upon the foregoing evidence, I find that claimant has offered \nmedical  evidence  supported  by  objective  findings establishing  a  compensable  injury  to \nhis right hip and his low back as a result of the fall on December 5, 2024. Therefore, I \nfind  that  claimant  has  met  his  burden  of  proving  by  a  preponderance  of  the  evidence \nthat  he  suffered  a  compensable  injury  to  his  right  hip  and  low  back  on  December  5, \n2024. \n Having  found  that  claimant  suffered  a  compensable  injury  to  his  right  hip  and \nlumbar  spine,  I  find  that  respondent  is  liable  for  all  reasonable  and  necessary  medical \ntreatment  provided  to  claimant  for  those  compensable  injuries.  This  includes  the \nemergency  room  treatment  and  subsequent  hospitalization  after  the  accident.  It  also \nincludes treatment from Community Clinic and treatment from Dr. Heim.  \n\nGomez – H408000 \n \n-9- \n The final issue for consideration involves claimant’s request for temporary total \ndisability benefits.  \n Claimant testified that he did not return to work for the respondent subsequent to \nDecember 5, 2024. In order to be entitled to temporary total disability benefits, claimant \nhas the burden of proving by a preponderance of the evidence that he remained in his \nhealing  period  and  that  he  suffered  a  total  incapacity  to  earn  wages. Arkansas  State \nHighway & Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).  \n While I find that claimant has remained within his healing period, I do not find that \nclaimant  has  proven  that  he  continued  to  suffer  a  total  incapacity  to  earn  wages. \nObviously,   the   claimant   was   totally   incapacitated   to   earn   wages during   his \nhospitalization.  However,  claimant’s  hospitalization  lasted  eight  days.  Pursuant  to \nA.C.A. §11-9-501(a)(1),  compensation  is  not  allowed  for  the  first  seven  days  of \ndisability.  Only  if  the  disability  extends  for  a  period  of  two  weeks  is  compensation \nallowed  from  the  first  day  of  disability.  A.C.A. §11-9-501(a)(3).  When  claimant  was \ndischarged  on  December  13,  2024,  no  treating  physician  opined  that  claimant  was \nincapable of returning to work or that claimant had any physical restrictions on his ability \nto  return  to  work.  Even  when  claimant  sought  medical  treatment  from  the  Community \nClinic and from Dr. Heim, neither of those medical providers indicated that claimant was \nincapable  of  working  or  placed  restrictions  on  his  ability  to  return  to  work.  In  fact, \nclaimant  admitted  on  direct  examination  that  at  one  point  in  time  he performed some \nsporadic work after his injury. \n Based upon the foregoing evidence, I find that claimant has failed to prove by a \npreponderance  of  the  evidence  that  he  was  totally  incapacitated  from  earning  wages \n\nGomez – H408000 \n \n-10- \nsubsequent to his discharge from the hospital on December 13, 2024. Based upon the \nprovisions  of  A.C.A. §11-9-501,  claimant  is  not  entitled  to  temporary  total  disability \nbenefits for the first seven days of disability because according to the evidence he was \nonly  disabled  for  eight  days.  Therefore,  pursuant  to  A.C.A. §11-9-501,  claimant  is \nentitled to temporary total disability benefits for one day.  \n \nORDER \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe  suffered  a  compensable  injury  to  his  right  hip  and  low  back  on  December  5,  2024. \nRespondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical  treatment \nprovided  in  connection  with  claimant’s  compensable  injury.  Claimant  is  entitled  to \ntemporary  total  disability  benefits  for  one  day  as  a  result  of  his  compensable  injury. \nRespondent has controverted claimant’s entitlement to all unpaid indemnity benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.   Also pursuant to A.C.A. §11-9-715(a)(1)(B), an attorney fee is not \nawarded on medical benefits. \nAll sums herein accrued are payable in a lump sum and without discount.  This \naward shall bear interest at the maximum legal rate until paid. \n Respondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $358.00. \n\nGomez – H408000 \n \n-11- \n IT IS SO ORDERED. \n \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":18105,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H408000 CARLOS REINA GOMEZ, Employee CLAIMANT C M CONSTRUCTION, LLC, Employer RESPONDENT WELLFLEET NEW YORK INS. CO., Carrier RESPONDENT OPINION FILED OCTOBER 15, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County...","outcome":"granted","outcomeKeywords":["granted:5","denied:1"],"injuryKeywords":["back","hip","ankle","cervical","thoracic","lumbar","sprain"],"fetchedAt":"2026-05-19T22:35:34.246Z"},{"id":"alj-H300316-2025-10-15","awccNumber":"H300316","decisionDate":"2025-10-15","decisionYear":2025,"opinionType":"alj","claimantName":"Celia Mendez","employerName":"Dillmeier Enterprises, Inc","title":"MENDEZ VS. DILLMEIER ENTERPRISES, INC. AWCC# H300316 October 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MENDEZ_CELIA_H300316_20251015.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MENDEZ_CELIA_H300316_20251015.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H300316 \n \nCELIA MENDEZ, Employee CLAIMANT \n \nDILLMEIER ENTERPRISES, INC., Employer RESPONDENT \n \nTRAVLERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 15, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented   by EVELYN   E.   BROOKS,   Attorney   at   Law, Fayetteville, \nArkansas; though not appearing at hearing. \n \nRespondents  represented  by AMY  C.  MARKHAM,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n Claimant   suffered   an   injury   which   was   accepted   by   the   respondent   as \ncompensable,  and  some  compensation  benefits  were  paid.  On  April  26,  2024,  Form \nAR-C was filed requesting additional compensation benefits. Since that time no hearing \nhas  been  requested  and  as  a  result  respondent  filed  a  motion  to  dismiss  the  claim  on \nDecember 23, 2024. Eventually, a hearing was scheduled on the respondent’s Motion \nto  Dismiss  for  September  29,  2025.  Notice  of  the  hearing  was  sent  to  claimant  by \ncertified mail and was returned as “Unclaimed”.  \n\nMendez – H300316 \n \n-2- \n By  email  dated  August  12,  2025,  Ms.  Brooks  indicated  the  claimant  had  no \nobjection  to  the  dismissal  and  neither  she  nor  the  claimant  would  attend  the  hearing \nunless required. Permission not to appear was given to Ms. Brooks and the claimant. \n Pursuant to 11 CAR § 25-110(d), upon meritorious application to the Commission \nfrom  a  party  requesting  that  the  claim  be  dismissed  for  want  of  prosecution,  the \nCommission  may,  upon  reasonable  notice  to  all  parties,  enter  an  order  dismissing  the \nclaim for want of prosecution.  \n After my review of respondents’ motion, claimant’s indication  that  she  has  no \nobjection to the dismissal, as well as all other matters properly before the Commission, I \nfind that respondents’ motion to dismiss this claim should be and hereby is granted. \nThis dismissal is pursuant to 11 CAR § 25-110(d) and it is without prejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2362,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H300316 CELIA MENDEZ, Employee CLAIMANT DILLMEIER ENTERPRISES, INC., Employer RESPONDENT TRAVLERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED OCTOBER 15, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arka...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:36.311Z"},{"id":"alj-H301244-2025-10-14","awccNumber":"H301244","decisionDate":"2025-10-14","decisionYear":2025,"opinionType":"alj","claimantName":"Maurice Adams","employerName":"Performance Food Group, Inc","title":"ADAMS VS. PERFORMANCE FOOD GROUP, INC. AWCC# H301244 October 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Adams_Maurice_H301244_20251014.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Adams_Maurice_H301244_20251014.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301244 \n \nMAURICE ADAMS,  \nEMPLOYEE                                                                                                         CLAIMANT \n \nPERFORMANCE FOOD GROUP, INC., \nEMPLOYER                                                                                                    RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AM.,  \nCARRIER                                                                                                        RESPONDENT \n \nCORVEL ENTERPRISE COMP., INC.,  \nTPA                                                                                                                   RESPONDENT \n \nOPINION AND ORDER FILED OCTOBER 14, 2025 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on August 19,  2025,  in  Little  Rock, \nArkansas. \n \nClaimant was represented by Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented by Mr. Rick Behring Jr., Attorney at Law, Little Rock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion for  Independent  Medical \nEvaluation (IME) filed by Respondents on April 15, 2025.  A hearing on the motion was conducted \non August 19, 2025, in Little Rock, Arkansas. Claimant’s counsel was present, but Claimant \nhimself was not present for the hearing, nor was any testimony taken, only oral arguments.  \nThe Claimant worked for the Respondent/Employer as a driver. The date for Claimant’s \nalleged injury was on March 14, 2022, when he fell off the side of a ramp injuring his back and \nneck. He reported his injury to Respondent/Employer on the same day. Admitted into the record \nwas Respondents’  Exhibit  1,  pleadings,  and medical  records,  consisting  of 21 pages,  and \nClaimant’s Ex.  1, Response  to  Motion  for  IME,  consisting  of 2 pages.  I  have also blue-backed \n\nADAMS H301244 \n \n2 \n \nRespondents and Claimant’s post hearing briefs, and Respondents’ pre-hearing questionnaire. The \nparties stipulate to Claimant having a compensable spinal injury. TR 43. \nThe purpose of Respondents’ motion is to obtain an order directing the Claimant to \nundergo an IME and they recommend Dr. Wayne Bruffett, M.D., of Little Rock, Arkansas to \nperform the evaluation. This IME, if granted, would allow Dr. Bruffett or another doctor of the \nCommission’s choosing to examine Claimant, review his medical records, and issue an opinion \nas to his impairment rating. Respondents’ reasons for requesting Dr. Bruffett are that they have \ncontroverted the impairment rating of 43% to the body as a whole, the Claimant’s work \nrestrictions, and his entitlement to permanent and total disability and/or wage loss. See \nRespondents’ Questionnaire, blue-backed. The Claimant also noted in their questionnaire that the \n43% impairment rating is an issue involving this claim. Resp. Ex. 1, pp. 3-5.  \nThe Respondents arguments are centered around a letter dated December 13, 2024, by Dr. \nBrad Thomas, Neurosurgeon. Resp. Ex. 1, p. 20. There, Dr. Thomas states that Claimant has \nreached maximum medical improvement for his spinal injury; and that his first impairment of \n30% to the whole person was based on station and gait impairment criteria. Id. Dr. Thomas \nfurther states that Claimant can rise to a standing position and can maintain it with difficulty but \ncannot walk without assistance. Id. \nRespondents argued that these findings were based on subjective criteria, i.e. gait \ndexterity, not objective factors. Dr. Thomas also issued a 19% impairment rating for Claimant’s \ntwo upper extremity impairments. Resp. Ex. 1, p. 20. Dr. Thomas stated that Claimant can use \n“both upper extremities for self-care, grasping, and holding but has difficulty with digital \ndexterity.” Id. Dr. Thomas concluded, based on the combination chart, that Claimant’s total \nimpairment rate was 43%. Id. Respondents controverted this finding and again argued that Dr. \n\nADAMS H301244 \n \n3 \n \nThomas used subjective factors instead of objective factors in determining digital dexterity, gait \ndexterity, and ultimately the 43% impairment rating to the body as a whole, was improper: thus, \nnecessitating in the need for an IME.  \nClaimant has objected to an IME, arguing that an IME in this matter is not reasonable and \nnecessary. The Claimant argues in his post hearing brief that Dr. Thomas followed the guidelines \nwhen issuing the 43% impairment rating. See Claimant’s post hearing brief, blue-backed. \nHowever, in the interest of resolution, the Claimant agreed to go to Dr. Barry Baskin for an IME. \nThe Respondents refused to acknowledge Claimant’s selection for the IME prior to the hearing, \nthereby rejecting Dr. Baskin as an option. The Respondents refused Dr. Baskin because he was \nnot a spine specialist like Dr. Bruffett. The Claimant further argued that Respondents have \nchosen all his treating physicians in this matter. More specifically, the authorized physician Dr. \nScott Carle referred Claimant to Dr. Thomas. The Claimant argues that there was no issue until \nthe impairment rating was issued by Dr. Thomas.   \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. Respondents  have  proven  by  the  preponderance  of  the  evidence  that  Claimant \nshould submit to an independent medical evaluation by Dr. Wayne Bruffett under \nArk. Code Ann. §11-9-511 (Repl. 2012) because such is reasonable and necessary. \nClaimant will work with the Respondents to expedite this evaluation.   \n \n \nIII.  DISCUSSION \n In addressing this issue, Ark. Code Ann. § 11-9-511 (Repl. 2012) provides: \n\nADAMS H301244 \n \n4 \n \n(a)  An injured employee claiming to be entitled to compensation shall submit to \nsuch physical examination and treatment by another qualified physician, \ndesignated or approved by the Workers’ Compensation Commission, as the \nCommission may require from time to time if reasonable and necessary. \n \n(b)  The places of examination and treatment shall be reasonably convenient for \nthe employee. \n \n(c)  Such physician as the employee, employer, or insurance carrier may select \nand pay for may participate in the examination if the employee, employer, or \ninsurance carrier so requests. \n \n(d)  In cases where the commission directs examination and treatment, \nproceedings shall be suspended, and no compensation shall be payable for any \nperiod during which the employee refuses to submit to examination and treatment \nor otherwise obstructs the examination or treatment. \n \n(e)  Failure of the employee to obey the order of the commission in respect to \nexamination or treatment for a period of one (1) year from the date of suspension \nof compensation shall bar the right of the claimant to further compensation in \nrespect to the injury. \n \nSee generally Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997)(Arey, \nJ., concurring). \n There is no question that the Claimant is claiming to be entitled to compensation, mainly \nthe 43% impairment rating issued by Dr. Thomas. The only question is whether the ordering of \nan IME is reasonable and necessary.  After careful consideration of all the facts and evidence in \nthis matter, I find by the preponderance of the evidence that it is reasonable to require that \nClaimant submit to an IME with Dr. Wayne Bruffett.   \nThough Claimant argued that Dr. Thomas did things appropriately in assessing \nClaimant’s impairment rating, that alone does not prohibit Respondents’ from seeking an IME \nwith a doctor who may carry a different view. Doctors are engaged in the practice of medicine, \nnot the perfection of it. Therefore, I find by the preponderance of the evidence that an IME is not \nonly reasonable but also necessary. Claimant’s argument against the IME is based on concern \n\nADAMS H301244 \n \n5 \n \nthat Respondents’ will get another bite at the apple. TR 37. But to make such an argument is to \nappreciate that a doctor with similar experience as Dr. Thomas could differ in their assessment of \nthe impairment rating. In fact, there is the sincere possibility that another doctor could access a \nhigher impairment rate, oppose to a lower one. As to Claimant’s alternative argument for Dr. \nBaskin to do the IME, Dr. Baskin is not a spine specialist, like Dr. Bruffett. I am ordering \nClaimant to submit to an expedited IME by Dr. Bruffett.  This evaluation shall be conducted in \naccordance with A.C.A. §11-9-511.  Thus, Respondents’ motion is granted. \nCONCLUSION \n Based on the Findings of Fact and Conclusions of Law set forth above, Respondents’ \nMotion is hereby granted, and Claimant shall submit to an expedited IME exam with Dr. Wayne \nBruffett.  \n IT IS SO ORDERED. \n \n      _______________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":9058,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301244 MAURICE ADAMS, EMPLOYEE CLAIMANT PERFORMANCE FOOD GROUP, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AM., CARRIER RESPONDENT CORVEL ENTERPRISE COMP., INC., TPA RESPONDENT OPINION AND ORDER FILED OCTOBER 14, 2025 Hearing before Administrative...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["back","neck"],"fetchedAt":"2026-05-19T22:35:28.025Z"},{"id":"alj-H204677-2025-10-14","awccNumber":"H204677","decisionDate":"2025-10-14","decisionYear":2025,"opinionType":"alj","claimantName":"Natasha Onick","employerName":"Jacksonville School District","title":"ONICK VS. JACKSONVILLE SCHOOL DISTRICT AWCC# H204677 October 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ONICK_NATASHA_H204677_20251014.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ONICK_NATASHA_H204677_20251014.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H204677 \n \nNATASHA ONICK, EMPLOYEE        CLAIMANT \n \nJACKSONVILLE SCHOOL DISTRICT,  \nSELF-INSURED EMPLOYER                   RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOC.,  \nTHIRD PARTY ADMINISTRATOR           RESPONDENT \n  \n \nOPINION FILED 14 OCTOBER 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 30 July 2025 in Little Rock, Arkansas. \n \nThe Davis Law Firm, Mr. Gary Davis, appeared on behalf of the claimant. \n \nWorley, Wood & Parrish, Ms. Melissa Wood, appeared on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n This claim relates to a compensable back injury sustained on 24 September 2021. Its \nprocedural history was most recently noted in a 19 July 2024 ALJ Opinion. A Prehearing \nOrder was filed on 4 June 2025 and admitted to the record as Commission’s Exhibit No 1. \nFor this litigation, and consistent with that Order, the parties agreed to the following: \nSTIPULATIONS \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n 2. The employee/employer/administrator relationship existed on 24 September  \n  2021 when the claimant suffered a compensable back injury. \n \n 3. The Law of the Case Doctrine applies to previous rulings in this claim. \n \nISSUE TO BE LITIGATED \n \n 1. Whether the claimant is entitled to additional medical treatment since  \n  exercising her right to a Change of Physician. \n \n All other issues are reserved. \n\nN. ONICK- H204677 \n2 \n \n \nCONTENTIONS \n \nThe Prehearing Order incorporated the following contentions from the parties’ \nrespective prehearing questionnaire responses: \nClaimant \n The claimant contended that she obtained a Change of Physician to Dr. Noemi \nRamsay and that she is entitled to ongoing pain treatment consistent with Dr. Ramsay’s \nrecommendations. \n Respondent \n \n The respondents contended that all appropriate benefits have been provided and \nthat additional medical treatment was included as an issue that was decided in earlier \nlitigation. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witness, observing her demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over these claims. \n \n2. The stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant has failed to prove by a preponderance of the evidence that she \nis entitled to any additional medical benefits since exercising her right to a \nChange of Physician. \n \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \n\nN. ONICK- H204677 \n3 \n \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \nThe claimant was the only witness. The record consists of the hearing transcript and \nthe following exhibits: Commission’s Exhibit No 1 (the 4 June 2025 Prehearing Order); \nClaimant’s Exhibit No 1 (one index page and seven pages of medical records); and \nRespondents’ Exhibit No 1 (two index pages and 86 pages of medical records). \nHearing Testimony \n The claimant is 46 years old with a high school education. At the time relevant to \nthis matter, she was working as a bus aide for the respondent-employer. On 24 September \n2021, the bus she was riding in lost control and went into a ditch. The respondents accepted \na back injury that she claimed was a result of the accident. Some treatment, including \nphysical therapy, was provided in connection with her claim before the claimant was \nreleased to full-duty work without restrictions on 7 October 2021. The respondents have \nsince denied additional treatment. Despite her release from treatment, the claimant denied \nreturning to work after the accident. \n She was treated for chronic pain at the Pain Treatment Centers of America (PTCA) \nbefore her workplace incident and now seeks ongoing treatment with PTCA in relation to \nher claim. She confirmed that she currently treats at PTCA for chronic pain, knee pain, \n\nN. ONICK- H204677 \n4 \n \nmultiple joint pain, lower back pain, and neck pain. She also confirmed on cross-\nexamination that she has applied for Social Security Disability three times without success. \n The claimant exercised her right to a Change of Physician and was subsequently \nseen by Dr. Noemi Ramsay at PTCA. The clinic note from her 10 December 2024 visit with \nDr. Ramsay was introduced as Claimant’s Exhibit No 1. She conceded that the note from \nthat visit makes no reference to her workplace accident. \nMedical Evidence \n The claimant introduced the progress note from her 10 December 2024 visit at PTCA \nwith Dr. Ramsay. That note included the following: \nCHIEF COMPLAINT: Chronic Pain \nOTHER COMPLAINTS: Knee Pain, Multiple Joint Pain, Lower Back Pain, \nNeck Pain \n. . .  \nASSESSMENT and PLAN \nChronic pain syndrome \nKnee pain \nJoint pain \nNeck pain \nLow back pain \nMyalgia, other site \nCramp and spasm \nOther reduced mobility \nOther long term (current) drug therapy \nLong term (current) use of opiate analgesic \n \n[Cl. Ex. No 1.] The note does not include any reference to the claimant’s workplace accident \nor what pain medication is being prescribed in connection with any assessed condition. \n The respondents provided a number of other clinic notes from PTCA. A review of the \nnotes predating the claimant’s workplace accident indicates that she was seen on various \noccasions for the following complaints: neck pain, head pain, mid-back pain, arm pain, leg \npain, abdominal pain, and low-back pain. The claimant was referred by PTCA to another \nprovider for further evaluation on 16 August 2021 (more than a month before her workplace \n\nN. ONICK- H204677 \n5 \n \nincident). Chronic low back pain and chronic pain syndrome were among the conditions for \nwhich she was being referred at that time. [Resp. Ex. No 1.] \n A note from MedExpress shows that the claimant presented to that clinic on the day \nof her workplace accident and that she was released with no restrictions the same day. \n Another note shows that the claimant was then seen by PA-C Clint Bearden on 7 \nOctober 2021. That note indicates that “subjective pain complaints exceed objective \nfindings. Release and return prn.” It further states that “Ms. Onick can return to work \nwithout limitations and follow up as needed.” Id. \nDISCUSSION \n The claimant in this case suffered a stipulated compensable back injury. She argues \nthat she is entitled to additional treatment beyond what the respondents have already \nprovided. She specifically argues that since obtaining a Change of Physician to a provider at \nPTCA, the respondents should be liable for her ongoing pain-related treatment regimen.  \n Employers must promptly provide medical services which are reasonably necessary \nin connection with compensable injuries. Ark. Code Ann. § 11-9-508(a). However, injured \nemployees have the burden of proving by a preponderance of the evidence that medical \ntreatment is reasonably necessary. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004). What constitutes reasonable and necessary medical treatment is a fact \nquestion for the Commission, and the resolution of this issue depends upon the sufficiency \nof the evidence. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). A \nclaimant may be entitled to additional treatment even after her healing period is ended, if \nthat treatment is geared towards management of a compensable injury. Patchell, supra. An \nemployee who has sustained a compensable injury is not required to offer objective medical \nevidence in order to prove that he is entitled to additional treatment. Ark. Health Ctr. v. \nBurnett, 2018 Ark. App. 427, 558 S.W.3d 408.  \n\nN. ONICK- H204677 \n6 \n \n The parties disagree as to whether the treatment currently sought is barred by the \nLaw of the Case Doctrine and res judicata. The purpose of the res judicata doctrine is to put \nan end to litigation by preventing a party who had one fair trial on a matter from \nrelitigating the matter a second time. Cox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 \n(2003). Res judicata applies where there has been a final adjudication on the merits of the \nissue by a court of competent jurisdiction on all matters litigated and those matters \nnecessarily within the issue which might have been litigated. Beliew v. Stuttgart Rice Mill, \n64 Ark. App. 334, 987 S.W.2d 281 (1998). Res judicata applies to decisions of the \nCommission. Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). The \nrelevant Commission decision here is the Full Commission’s 8 February 2024 Opinion that \nunanimously affirmed and adopted the Chief Administrative Law Judge’s 22 August 2023 \nOpinion. When the Full Commission adopted the CALJ’s findings and conclusions, it made \nthose findings and conclusions its own. See, e.g., SSI, Inc. v. Cates, 2009 Ark. App. 763, 350 \nS.W.3d 421. \n The claimant, on the one hand, argues that the treatment requested here escapes \nthe res judicata bar because the claimant saw Dr. Ramsey with the Commission’s approval, \nthrough exercising a Change of Physician, after the Commission’s Opinion was issued. She \npresses that, “there is no reference in that Opinion that the treatment was not reasonable, \nthat it wasn’t reasonably necessary, that it wasn’t related to the accident. The only \nreference [...] has to do with authorization....” The respondents, on the other hand, argue \nthat while the Opinion did discuss treatment authorization at length, the CALJ’s finding \nincluded additional treatment not being reasonable or necessary beyond the MedExpress \nvisit explicitly noted in the Opinion. \n In relevant part, the CALJ’s findings and conclusions state: \n\nN. ONICK- H204677 \n7 \n \n3. Claimant has proven by a preponderance of the evidence her \n entitlement to additional treatment of her stipulated compensable \n lower back injury in the form of her visit to MedExpress Clinic on \n September 24, 2021. \n \n4. Claimant has not proven by a preponderance of the evidence her \n entitlement to any other treatment of her stipulated compensable \n lower back injury other than that set out in Stipulation No 3 and \n Finding of Fact/Conclusion No 3, supra. \n \n[CALJ Opinion, 22 August 2023, 2023 AR WRK. COMP. LEXIS 267.] \n Assuming, arguendo, that the treatment now being sought is not barred by res \njudicata, the claimant has still failed to prove by a preponderance of the evidence that she \nis entitled to the same. The claimant has the burden of proving that the treatment sought is \nreasonable and necessary. Patchell, supra. The only medical evidence she presented in \nsupport of her claim was a clinic note from PTCA after she obtained a Change of Physician \nauthorizing her to be seen by one of its providers. The note from that visit states that the \nclaimant was seen for, “Chief Complaint: Chronic Pain; Other Complaints: Knee Pain, \nMultiple Joint Pain, Lower Back Pain, Neck Pain.” The note provides no specific reference \nto any mechanism of injury related to this claim; and it makes no reference to any \ntreatment prescribed specifically for the claimant’s stipulated back injury.  \n Instead, the clinic note simply shows that the claimant was seen for a number of \ncomplaints and that long-term opioid prescriptions were being recommended. The note is \nnot dissimilar from other notes dating back as early as 16 September 2020 and 15 October \n2020, long before the claimant’s workplace accident and the initiation of this claim. She \nattempted in her testimony to attribute ongoing back pain-- and a corresponding need for \ntreatment-- to her workplace accident and stipulated compensable injury. But she was not \ncredible or persuasive in so doing. \n The claimant has failed to produce any credible evidence that the requested \ntreatment is reasonably necessary in relation to her accepted back injury—an injury for \n\nN. ONICK- H204677 \n8 \n \nwhich she received a full-duty release without restrictions back on 7 October 2021. Because \nshe has clearly failed to prove by a preponderance of the evidence that any additional \ntreatment is reasonable or necessary, I will not address whether res judicata should operate \nas a bar to the same. \nCONCLUSION \n The claimant has failed to prove by a preponderance of the evidence that she is \nentitled to additional medical benefits. Accordingly, this claim for additional benefits is \nDENIED and DISMISSED. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":13572,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H204677 NATASHA ONICK, EMPLOYEE CLAIMANT JACKSONVILLE SCHOOL DISTRICT, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED 14 OCTOBER 2025 Heard before Arkansas Workers’ Compensation Commissi...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:2","denied:4"],"injuryKeywords":["back","knee","neck"],"fetchedAt":"2026-05-19T22:35:30.106Z"},{"id":"alj-H504236-2025-10-14","awccNumber":"H504236","decisionDate":"2025-10-14","decisionYear":2025,"opinionType":"alj","claimantName":"Paul Scott","employerName":"The Oil Doctor","title":"SCOTT VS. THE OIL DOCTOR AWCC# H504236 October 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SCOTT_PAUL_H504236_20251014.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCOTT_PAUL_H504236_20251014.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H504236 \n \nPAUL SCOTT (DEC’D), Employee CLAIMANT \n \nTHE OIL DOCTOR, Employer RESPONDENT \n  \nMARKEL SERVICE, INC., Carrier RESPONDENT \n \n OPINION/ORDER FILED OCTOBER 14, 2025  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented  by JARID  M.  KINDER,  Attorney, Fayetteville,  Arkansas;  although  not \npresent at hearing. \n \nRespondent represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn July 9, 2025, Jarid Kinder, claimant’s attorney, filed a Form AR-C requesting various \ncompensation benefits in which he alleged a traumatic brain injury resulting in death on March \n17, 2025; however, no hearing was requested. No further action was taken in this claim. \nOn July 22, 2025, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for September  18,  2025.  Notice  of \nthat  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on August  12, \n2025. United States Postal Department records indicate that claimant received and signed for the \nnotice on August 18, 2025. \nMr. Kinder indicated by  email dated August  12,  2025, that he would  waive his \nappearance at the hearing and further indicated that he had no objection to the Motion to Dismiss \n“WITHOUT prejudice.”    \n\nScott – H504236 \n2 \n \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution.  After my review of \nthe respondent’s Motion to Dismiss, Mr. Kinder’s response  thereto  that  he  had  no  objection  to \nthe Motion to Dismiss without prejudice, and the claimant’s failure to appear at the scheduled \nhearing,  as  well  as  all  other  matters  properly  before  the  Commission,  I  find  that  claimant  has \nfailed to prosecute this claim. Therefore, this claim is dismissed without prejudice.   \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2320,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H504236 PAUL SCOTT (DEC’D), Employee CLAIMANT THE OIL DOCTOR, Employer RESPONDENT MARKEL SERVICE, INC., Carrier RESPONDENT OPINION/ORDER FILED OCTOBER 14, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Fort Smith, Sebastian County, Arkansas....","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:32.175Z"},{"id":"alj-H303017-2025-10-14","awccNumber":"H303017","decisionDate":"2025-10-14","decisionYear":2025,"opinionType":"alj","claimantName":"Melanie Needham","employerName":"Encompass Health Rehab Hospital","title":"NEEDHAM VS. ENCOMPASS HEALTH REHAB HOSPITAL AWCC# H303017 October 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/NEEDHAM_MELANIE_H303017_20251014.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NEEDHAM_MELANIE_H303017_20251014.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H303017 \n \nMELANIE NEEDHAM, Employee CLAIMANT \n \nENCOMPASS HEALTH REHAB HOSPITAL, Employer RESPONDENT \n \nCORVEL ENTERPRISE COMP, INC., Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 14, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by DAVID C. JONES, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On November  13,  2024,  the  claimant  filed  an  AR-C  requesting  various  compensation \nbenefits in which she alleges an injury to her right wrist on or about January 12, 2023. There has \nbeen no request for a hearing and no further action was taken in this claim. \n On June 10, 2025, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for September  18,  2025.  Notice  of \nthat  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on August  11, \n2025. United States Postal Department records indicate that claimant received and signed for the \nnotice on August 14, 2025. Despite having received notice of the scheduled hearing, the claimant \nfailed to appear at the hearing and has failed to respond to the motion in any form or manner. \n\nNeedham – H303017 \n \n-2- \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After a review of the \nrespondents’ Motion to Dismiss, the claimant’s lack of desire to pursue her claim, and her failure \nto appear at the scheduled hearing, as well as all other matters properly before the Commission, I \nfind  that  claimant  has  failed  to  prosecute  this  claim.  Therefore,  this  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2253,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H303017 MELANIE NEEDHAM, Employee CLAIMANT ENCOMPASS HEALTH REHAB HOSPITAL, Employer RESPONDENT CORVEL ENTERPRISE COMP, INC., Carrier RESPONDENT OPINION FILED OCTOBER 14, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian Co...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T22:35:38.387Z"},{"id":"alj-H400898-2025-10-10","awccNumber":"H400898","decisionDate":"2025-10-10","decisionYear":2025,"opinionType":"alj","claimantName":"Waylon Osborn","employerName":"Penmack Staffing Services, Inc","title":"OSBORN VS. PENMACK STAFFING SERVICES, INC. AWCC# H400898 October 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/OSBORN_WAYLON_H400898_20251010.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OSBORN_WAYLON_H400898_20251010.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H400898 \n \n \nWAYLON L. OSBORN, EMPLOYEE     CLAIMANT \n \nPENMACK STAFFING SERVICES, INC. \nEMPLOYER          RESPONDENT \n \nAIU INSURANCE COMPANY/ \nGALLAGHER BASSETT SERVICES, INC., \nINSURANCE CARRIER/TPA      RESPONDENT \n \n \nOPINION AND ORDER FILED OCTOBER 10, 2025 \n \nThe Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, was held on September 30, 2025. \nClaimant failed to appear. \nRespondents were represented by Rick Behring, Jr., of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 30\nth\n day of September, 2025, \nin Little  Rock,  Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute \npursuant  to  Arkansas  Code  Ann.  11-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Commission, which has recently been renamed 11 C.A.R. 25-110(d) and \nwill be referred to by that name in the remainder of this opinion. The claimant was pro se \nand  failed  to  appear. The Respondents  were  represented  by Rick  Behring,  Jr. of  Little \nRock, Arkansas. A previous Motion to Dismiss Hearing had been held on the 15\nth\n day of \nOctober 2024, and at that time, the Claimant appeared pro se. An opinion in regard to the \nhearing of October 15, 2024, found that the matter should not be dismissed at that time \ndue to the objection of the Claimant and he was ordered to respond to the propounded \n\nWaylon L. Osborn – H400898 \n2 \n \ndiscovery within thirty (30) days of the date of the receipt of the discovery. The opinion \nwas filed on October 23, 2024. \n The second Motion to Dismiss was filed on July 30, 2025, and provided that the \nClaimant had alleged he had sustained a compensable injury to his left lower extremity \nas  a  result  of  a  specific  incident  on  or  about  November  1,  2023,  while  working  for  the \nrespondent employer. The Respondents filed a Form AR-2 and controverted the claim in \nits entirety. The Claimant through his former attorney, Mark Peoples, filed a Form AR-C \non or about February 19, 2024, requesting initial and additional benefits. Ultimately, the \nClaimant’s attorney moved to withdraw as counsel of record on May 19, 2024, and this \nrequest was granted by the Full Commission in June 2024. \n The second Motion to Dismiss Without Prejudice along with a Brief in Support of \nthe Motion, was filed on July 30, 2025, requesting that the matter be dismissed without \nprejudice  pursuant  to  11  C.A.R.  25 -110(d) of the Arkansas Workers’ Compensation \nCommission  for failure  to prosecute, or  in  the  alternative  that  the  matter  be  dismissed \nwithout prejudice pursuant to A.C.A. 11-9-702 which provides for dismissal of a claim if \nno bona fide request for a hearing has been made within six (6) months of the filing of his \nclaim. No  response  was  filed  by  the  Claimant  in  regard  to  the  motion. The  Motion  to \nDismiss  alleged  that the Claimant,  with  the  exception  of providing  some  discovery \nresponses/authorizations, had taken no steps to prosecute his claims within six months.   \n After proper notice, a hearing was held on September 30, 2025, and the Claimant \nfailed to appear. The Respondents were represented by Rick Behring, Jr., who requested \nthat  the  matter  be  dismissed  pursuant  to 11 C.A.R. 110(d) of the Arkansas Workers’ \nCompensation Commission and A.C.A. 11-9-702. \n\nWaylon L. Osborn – H400898 \n3 \n \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion  to  Dismiss without  prejudice pursuant  to 11  C.A.R.  110(d) of  the  Arkansas \nWorkers’ Compensation Commission and A.C.A. 11-9-702.   \n IT IS SO ORDERED. \n                \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":3945,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H400898 WAYLON L. OSBORN, EMPLOYEE CLAIMANT PENMACK STAFFING SERVICES, INC. EMPLOYER RESPONDENT AIU INSURANCE COMPANY/ GALLAGHER BASSETT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED OCTOBER 10, 2025 The Hearing before Administrat...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:25.957Z"},{"id":"alj-H109799-2025-10-09","awccNumber":"H109799","decisionDate":"2025-10-09","decisionYear":2025,"opinionType":"alj","claimantName":"Gina Sallee","employerName":"Universal Health Services Inc","title":"SALLEE VS. UNIVERSAL HEALTH SERVICES INC. AWCC# H109799 October 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SALLEE_GINA_H109799_20251009.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SALLEE_GINA_H109799_20251009.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H109799 \nGINA SALLEE, EMPLOYEE CLAIMANT \n \nUNIVERSAL HEALTH SERVICES INC., EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER/TPA RESPONDENT \n \n \n OPINION FILED OCTOBER 9, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney,  Fayetteville, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney,  Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  July 14, 2025, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on April 24, 2025, and a pre-hearing order was filed on that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.    The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2.   The employee/employer/carrier relationship existed on December 7, 2021. \n3.   Claimant sustained a compensable injury on December 7, 2021.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1.  Whether claimant is entitled to temporary total disability benefits for her left shoulder injury \nfrom March 14, 2024, to September 11, 2024.  \n\nSallee-H109799 \n2 \n \n \n2.  Attorney’s fee. \nAll other issues are reserved by the parties. \nThe claimant contends that “She is entitled to temporary total disability after her left shoulder \nsurgery by Dr. Dougherty in March of 2024. Claimant reserves all other issues.” \nThe respondents contend that “All benefits related to her left shoulder injury have been paid.”   \n           From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe  her  demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on April \n24, 2025, and contained in a pre-hearing order filed on that same date are hereby accepted as fact. \n 2.  Claimant has met her burden of proving by a preponderance of the evidence that she is \nentitled to temporary total disability from March 4, 2024, through September 11, 2024.  \n \n FACTUAL BACKGROUND \n This is the third time I have heard this case. In an Opinion that was issued on November 3, \n2022,  I found that claimant failed to prove that she suffered a compensable injury on December 7, \n2021, as she did not provide convincing evidence that she was acting in the course of her employment \nat  the  time  of  the  accident.  On  June  9,  2023,  the  Full  Commission  reversed  that  decision,  finding \nclaimant did prove by the preponderance of the evidence that she was acting within the course of her \nemployment duties with the respondent on December 7, 2021, when she had an automobile accident. \nThe Full Commission then found that claimant proved she suffered compensable injuries to her neck \n\nSallee-H109799 \n3 \n \n \nand left knee. All other issues were reserved. That decision was not appealed to the Arkansas Court \nof Appeals and therefore is res judicata on the issue of whether claimant suffered a compensable injury \non December 7, 2021.  \n The second hearing was held on April 10, 2024, with an opinion issued on May 16, 2024, in \nwhich I found claimant proved by a preponderance of the evidence that her left shoulder injury was \ncompensable, entitling her medical benefits for that injury. In March 2024, claimant had undergone a \nsubacromial decompression with biceps tenotomy and distal clavicle co-plane procedure the month \nbefore  that hearing  and was  still  being  treated  for  it.  Claimant  did  not  seek  any  temporary  total \ndisability (TTD) benefits for her left shoulder injury at the April 2024 hearing, reserving that issue. \nThat decision was not appealed to the Full Commission and therefore is res judicata on the issue of \nwhether claimant suffered a compensable left shoulder injury on December 7, 2021.  \n The  above  recitation  of  the  issues  and  contentions  of  the  parties  reflects  how  the  parties \namended  or  clarified  their  respective  positions  before  the  hearing. At  the  hearing,  respondent \nrequested  that  the transcripts  and exhibits  from  the  prior  hearings  be  included in  the  present \nproceeding. Claimant objected because respondent had not identified those records prior to trial as \npotential  exhibits  and  did  not review  them  to  prepare  for  this  hearing. I  took  the  request  under \nadvisement, and after reviewing the prehearing order, I note that the parties were to identify exhibits \nat least seven days before the hearing and provide them to opposing counsel. While I believe the better \npractice  would  be  to  advise  opposing  counsel  if  records  from  a  prior  hearing  were  going  to  be \nreferenced at the present hearing\n1\n, the requirement to provide them to opposing counsel presupposes \nthat  counsel  did  not  already  have  those  records. Over claimant’s objection, I will consider the \n \n1\n The best practice would have been for me to inquire of the parties during the prehearing conference if either wanted \nthe previous testimony and exhibits considered when determining the issue before me, but I failed to do so.  \n\nSallee-H109799 \n4 \n \n \ntestimony  and  exhibits  from  the  previous  hearing  that  are  germane  to  the  issue  before  me  in  this \nhearing.  \nHEARING TESTIMONY \n \n \n Claimant was the only witness to testify at this hearing. At the April 10, 2024, hearing in this \nmatter, claimant had already had surgery on her left shoulder and pursuant to the Court’s Order of \nMay  16, 2024, that  surgery  was deemed  necessary  treatment  for  that  injury. Claimant  testified  that \nfollowing the  surgery  on March 14,  2024,  she  received  physical  therapy,  pain  medication,  and  two \ncortisone shots. She said after the second cortisone injection, her left shoulder pain subsided. Claimant \ntestified between March 14, 2024, and September 11, 2024, she did not work because of the pain she \nwas having from her shoulder. \n On cross-examination, claimant said that the pain in her shoulder made it difficult to type as \nshe could not lift her arm high enough to do so without excruciating pain; her computer was on a \ntable. She was able to do some cooking with her right hand.  \n \nREVIEW OF THE MEDICAL EXHIBITS \n \n The only exhibits provided by claimant were 54 pages of medical records, most of which were \nthose of Dr. Dougherty from January 24, 2024, through September 12, 2024. Respondents submitted \nno additional exhibits.  \n Dr. Dougherty’s operative report of March 14, 2024, shows  he  performed a  subacromial \ndecompression  with  biceps  tenotomy  and  distal  clavicle  co-plane  procedure. On  March  19,  2024, \nMontye Crawford, assistant to Dr. Dougherty, said claimant could go without her sling and try to use \nher  arm  normally,  but  not  to  lift over five pounds  with  it. Dr.  Dougherty referred claimant to a \ntherapist for a home exercise program (HEP) on March 27, 2024.  \n\nSallee-H109799 \n5 \n \n \n On June 9, 2024, Dr. Dougherty saw claimant and gave her a cortisone injection in her left \nshoulder. She was told to limit her activities for the next 24-48 hours, after which she was to continue \nthe  HEP  and  have  a weight  restriction  of  no  more  than  20  pounds. Claimant  returned  to  Dr. \nDougherty on July 31, 2024, at which time the weight restriction was raised to 30 pounds. Claimant \nwas still complaining of pain in her left shoulder when she saw Dr. Dougherty on September 11, 2024. \nHe scheduled claimant for another MRI on her shoulder and reduced her lifting restrictions to five \npounds. \n Respondents requested that the records and testimony of Dr. James Blankenship that were \nintroduced at the previous hearing be reviewed. In doing so, I saw Dr. Blankenship discussed cervical \nspine surgery with claimant, and there are references to claimant having bilateral radicular pain in her \narms. However, Dr.  Blankenship  did  not  treat  claimant  for the  injury  for  which  Dr.  Dougherty \nperformed  surgery. I  found  those records  from  the  previous  hearing are  inapplicable  to  the  issue \nbefore me, as claimant is not seeking any benefits in this action that relate to her cervical spine injury.  \n \nADJUDICATION \n \n As set forth above, the only issue before me is claimant’s request for temporary total disability \n(TTD) benefits from March 14, 2024, through September 11, 2024. At the time of the previous hearing \n(April 10, 2024), she had already undergone a subacromial decompression with biceps tenotomy and \ndistal clavicle co-plane procedure that hearing and was still being treated for it. Claimant did not seek \nany TTD benefits for her left shoulder injury at the April 2024 hearing, reserving that issue for this \nhearing.  \n An injury to a left shoulder is an unscheduled injury. To be entitled to TTD benefits for an \nunscheduled injury, a claimant must prove by a preponderance of the evidence that she remains within \nher healing period and suffers a total incapacity to earn wages. Allen Canning Co. v. Woodruff, 92 Ark. \n\nSallee-H109799 \n6 \n \n \nApp. 237, 212 S.W.3d 25 (2005). Claimant proved that she remained in her healing period from March \n4, 2025, through September 11, 2024; Dr. Dougherty was still treating her post-surgery. The question \nthen is whether she proved she suffered the necessary incapacity to earn wages.  \n From  March  4,  2024,  through  June  5,  2024, I  have  no  question  that  claimant qualified  for \nTTD. The  period  from  June  5,  2024,  through September  11,  2024,  is  not  as  clear,  because  Dr. \nDougherty released her with weight restrictions of twenty and then thirty pounds. Claimant said it was \ntoo painful to type or use the arm opening the refrigerator. However, Dr. Dougherty did give her an \ninjection for bursitis on June 5, 2024, which would be consistent with claimant’s description of her \nsymptoms. I was not provided with the record of the second injection she was given, which from the \ntestimony was  after  she  had  an  MRI  on  October 2,  2024,  but claimant testified that  the  second \ninjection relieved the pain she was having in the surgical area.  \n In Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002), the Arkansas Court of Appeals \nheld: \"If, during the period while the body is healing, the employee is unable to perform remunerative \nlabor with reasonable consistency and without pain and discomfort, his temporary disability is deemed \ntotal.\" In the first two hearings, I found many instances in which I did not think claimant was a credible \nwitness, but when I view her testimony in this hearing with the records from Dr. Dougherty, he did \nnot record that she was exaggerating but instead treated her with a cortisone injection. Based on her \ntestimony and the medical records, I find claimant has proven by a preponderance of the evidence \nthat she is unable to work without pain and discomfort and is therefore entitled to TTD from March \n4, 2024, until September 11, 2024.\n2\n  \n \n \n2\n Claimant submitted a “return to work/school” note from Dr. Dougherty dated September 12, 2024, that contradicted \nhis 30-pound lifting restriction from the day before, stating that claimant was to lift no more than 5 pounds with her \nupper extremities. As Dr. Dougherty was not treating claimant’s right arm, it may be that he simply misspoke with \nthe plural reference, but regardless, that note was issued after the relevant dates of the scope of this hearing.  \n\nSallee-H109799 \n7 \n \n \nORDER \n \n Respondents  are directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. 3 \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one half by the carrier and one \nhalf by the claimant. \nThe respondent shall pay the court reporter's fee in the amount of $ 460.50. \nAll issues not addressed herein are expressly reserved under the Act. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":12915,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109799 GINA SALLEE, EMPLOYEE CLAIMANT UNIVERSAL HEALTH SERVICES INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 9, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, S...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["shoulder","neck","knee","cervical"],"fetchedAt":"2026-05-19T22:35:23.883Z"},{"id":"full_commission-H304672-2025-10-08","awccNumber":"H304672","decisionDate":"2025-10-08","decisionYear":2025,"opinionType":"full_commission","claimantName":"Gregory Roberson","employerName":"Pepper Source, Ltd","title":"ROBERSON VS. PEPPER SOURCE, LTD AWCC# H304672 October 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Roberson_Gregory_H304672_20251008.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Roberson_Gregory_H304672_20251008.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H304672 \n \n \nGREGORY ROBERSON, EMPLOYEE    CLAIMANT \n \nPEPPER SOURCE, LTD, EMPLOYER                                  RESPONDENT \n \nSUMMIT CONSULTING, LLC, CARRIER                              RESPONDENT \n \n \nOPINION FILED OCTOBER 8, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE JASON M. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed July 22, 2025. In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-hearing \nconference conducted on June 18, 2025, and contained in a pre-\nhearing order filed that same date are hereby accepted as fact. \n \n2. The parties’ stipulation that claimant earned an average weekly \nwage of $1,070.00 which would entitle him to compensation at \nthe rates of $713.00 for total disability benefits and $535.00 for \npermanent partial disability benefits is also hereby accepted as \nfact.  \n\nRoberson-H304672    2  \n \n \n \n3. Claimant’s attorney is entitled to an attorney fee on payment of \ntemporary total disability benefits paid by the respondent \nbeginning on February 24, 2025. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the July 22, 2025 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2468,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H304672 GREGORY ROBERSON, EMPLOYEE CLAIMANT PEPPER SOURCE, LTD, EMPLOYER RESPONDENT SUMMIT CONSULTING, LLC, CARRIER RESPONDENT OPINION FILED OCTOBER 8, 2025 Upon review before the FULL COMMISSION in Little Rock, Pulaski County...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.963Z"},{"id":"alj-H206280-2025-10-08","awccNumber":"H206280","decisionDate":"2025-10-08","decisionYear":2025,"opinionType":"alj","claimantName":"Jacqueline Langford","employerName":"De Wafelbakkers, Inc","title":"LANGFORD VS. DE WAFELBAKKERS, INC. AWCC# H206280 October 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Langford_Jacqueline_H206280_20251008.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Langford_Jacqueline_H206280_20251008.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H206280 \n \nJACQUELINE LANGFORD, EMPLOYEE   CLAIMANT \n \nDE WAFELBAKKERS, INC., EMPLOYER   RESPONDENT \n \nCHUBB INDEM. INS. CO., CARRIER/TPA  RESPONDENT \n \nOPINION FILED OCTOBER 8, 2025 \n \nHearing before Administrative Law Judge, Steven Porch, on September 9, 2025, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant is Pro Se, Little Rock, Arkansas. \n \nRespondents were represented by Mr. Rick Behring, Jr., Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  full  hearing  was  held  on  this  claim  on September  9,  2025.  A  prehearing  telephone \nconference  took  place  on June  18,  2025.  A  prehearing  order  was  entered  on the  same  day, and \nsubsequently  entered  into  evidence  as  Commission  Exhibit  1,  without  objection  or  amendment. \nThe parties confirmed the stipulations and the issues at the hearing. The parties’ stipulations are \nset forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim.   \n \n2. An  employer/employee/carrier  relationship  existed  on August  17,  2022, \nwhen Claimant sustained compensable injuries to her neck and back. \n \n3. Respondents  accepted  the  Claimant’s  claim  as  compensable  and  certain \nbenefits have been paid. \n \n4. Respondents have controverted any other alleged injuries.  \n \n\nLANGFORD H206280 \n \n2 \n \n5. The parties stipulate to Claimant’s average weekly wage of $620.00, entitling \nher to temporary total disability (TTD) benefit rate of $414.00 weekly, and \nher permanent partial disability (PPD) benefit rate of $311.00 weekly.  \n \nBy agreement of the parties, the issues to be presented at the hearing are as follows: \n1. Whether Claimant is entitled to additional medical treatment in the form of physical \ntherapy for her compensable neck injury. \n \n2. Whether Claimant is entitled to any additional Temporary Total Disability (TTD) \nbenefits from September 9, 2022, to July 1, 2025.\n1\n \n \nAll other issues are reserved. \n \nCONTENTIONS \nClaimant contends: \nOn the day of her injury, the facility was conducting sanitation procedures, \nand all employees were expected to wear non-slip boots provided by the job.  \nHowever, she was unaware of this policy and slipped on the stairs while \ncoming down, sustaining injuries to both hands, shoulders, upper and lower \nspine and right leg, causing her to have bulging disc in her neck and back as \nshe tried to break her fall. \n \nRespondent contends: \n1. To date, all benefits to which the Claimant is entitled have been paid and \nhave not been controverted. \n \n2.  The Respondents accepted as compensable injuries to the neck and back \narising from a specific incident.  The Respondents have controverted any \nother alleged injuries. \n \n3. To date, the Respondents have paid for all reasonable and necessary \nmedical treatment. \n \n4. Dr. Edward Saer released the Claimant at MMI with no impairment on or \nabout February 13, 2023.  Following that, the Claimant requested a change \nof physician to Dr. Mike Umerah (A pain management specialist).  The \nRespondents authorized recommended treatment for the compensable \ninjuries from Dr. Umerah. \n \n \n1\n The Claimant stated during the full hearing that she was seeking additional TTD benefits from September 9, \n2022, to July 1, 2025. Therefore the issue was amended to make the issue concise. \n\nLANGFORD H206280 \n \n3 \n \n5. On April 24, 2024, Dr. Saer reaffirmed his opinion that the Claimant was \nMMI with no impairment. \n \n6. On April 18, 2025, Dr. Wayne Bruffett reaffirmed Dr. Seale’s finding that \nthe Claimant was MMI.  Dr. Bruffett opined that the Claimant needed no \nadditional medical treatment, had no permanent anatomical impairment, \nand needed no work restrictions related to the compensable injuries \nsustained on August 17, 2022. \n \n7. The Respondents contend the Claimant is entitled to no additional benefits \n– medical or indemnity – related to this claim. \n \n8. The Respondents reserve the right to supplement and/or amend their \ncontentions prior to the Full Hearing. \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary  record,  I  hereby  make  the  following  Findings  of  Fact  and  Conclusions  of  Law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant has failed to prove by the preponderance of the evidence that she is \nentitled  to  additional  medical  treatment  in  the  form  of  physical  therapy  for  her \ncompensable neck injury.  \n \n4. The  Claimant  has  failed  to  prove  by  the  preponderance  of  the  evidence  that  she  is \nentitled to additional TTD benefits. \n \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Respondents’ Exhibit 1, medical records, consisting of 32 pages; \nRespondents’  Exhibit  2, unemployment  records,  accident  injury,  consisting  of 28 pages; \nCommission Exhibit 1, Pre-Hearing Order filed June 18, 2025, consisting of 6 pages. The Claimant \n\nLANGFORD H206280 \n \n4 \n \ndid not enter any exhibits into the record. The Claimant was the only witness testifying at the full \nhearing.  \nThe Claimant was employed as a production packer for the Respondent/Employer. Her job \ninvolved packing pancakes in label boxes. On August 17, 2022, while at work the Claimant fell \ndown a wet staircase injuring her neck and back. The claim was accepted by the Respondents and \nmedical, as well as TTD benefits were paid. Dr. Edward Saer determined that Claimant had reached \nmaximum medical improvement from her work-related injury on February 13, 2023. Resp. Ex. 1, \np. 26. Claimant received a second opinion by Dr. Wayne Bruffett on April 18, 2025. Resp. Ex. 1, \npp. 27-31. Dr. Bruffett noted that the Claimant has a history of chronic fibromyalgia. Id. Dr. \nBruffett further noted that he reviewed both her cervical and lumbar x-rays and MRI scans. Id. His \nreview found that Claimant had some disc degeneration at L5-S1 and some endplate Modic \nchanges but no evidence of acute fracture or specific disc herniation or objective evidence of injury \nbecause of her work-related injury. Id. Dr. Bruffett concluded that he felt that no additional medical \ntreatment was necessary, and that Claimant had reached maximum medical improvement. Id. \nThe Claimant testified that she has been in pain every day and feels that physical therapy \non her neck will help her with her pain. TR 15-17. But did admit that when she last underwent \nphysical  therapy  on  her  neck  that  it  helped  her  on  some  days  and  not  on  others. TR  17. \nNevertheless, the Claimant feels that the machines at the physical therapist’s office will help her \nwith her pain.  \nThe Claimant also requested TTD benefits from September 9, 2022, to July 1, 2025. The \nClaimant testified that she received TTD benefits for two weeks after her work-related incident. \nThe Claimant testified that she was allowed to come back to work on light duty but refused to do \nso because she felt she was not physically able to do so. TR 30-31. The Claimant did not testify as \n\nLANGFORD H206280 \n \n5 \n \nto how many days she was off work from September 9, 2022, to July 1, 2025, due to her work-\nrelated injury. But she feels entitled to those days.   \nAdjudication \nA. Whether  Claimant  is  entitled  to  additional  reasonable  and  necessary  medical \ntreatment, including surgeries by unauthorized physician, Dr. David M. Rhodes, \nand related expenses, including mileage and out of pocket expenses. \n \n Arkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states that an employer shall \nprovide for an injured employee such medical treatment as may be necessary in connection with \nthe injury received by the employee.  Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d \n153 (2003).  But employers are liable only for such treatment and services as are deemed necessary \nfor the treatment of the claimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d \n857 (1987).  The Claimant must prove by a preponderance of the evidence that medical treatment \nis reasonable and necessary for the treatment of a compensable injury.  Brown, supra; Geo \nSpecialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The standard “preponderance \nof the evidence” means the evidence having greater weight or convincing force.  Barre v. Hoffman, \n2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947).  What constitutes reasonable and necessary medical treatment is a question of fact for \nthe Commission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); \nWackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission.  White v. Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \n\nLANGFORD H206280 \n \n6 \n \nto believe the testimony of the claimant or any other witness but may accept and translate into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \nThe Claimant has a compensable neck injury and desires physical therapy. However, Dr. \nSaer determined that Claimant had reached maximum medical improvement from her work-related \ninjury on February 13, 2023. Resp. Ex. 1, p. 26. Dr. Wayne Bruffett, on April 18, 2025, concluded \nin his second opinion that Claimant needed no additional medical treatment, and that Claimant had \nreached maximum medical improvement. Resp. Ex. 1, pp. 27-31. I credit the opinions of Dr. Saer \nand Dr. Bruffett. Thus, I find by the preponderance of evidence that Claimant’s healing period \nended February 13, 2023.  \n Nevertheless, as the Arkansas Court of Appeals has held, a claimant may be entitled to \nadditional treatment, even after the healing period has ended, if said treatment is geared toward \nmanagement of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d \n31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  Such \nservices can include those for the purpose of diagnosing the nature and extent of the compensable \ninjury; reducing or alleviating symptoms resulting from the compensable injury; maintaining the \nlevel of healing achieved; or preventing further deterioration of the damage produced by the \ncompensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, \nsupra.  A claimant is not required to furnish objective medical evidence of her continued need for \nmedical treatment.  Castleberry v. Elite Lamp Co., 69 Ark. App. 359, 13 S.W.3d 211 (2000). \n The Claimant is seeking relief from her symptoms, pain in her neck. The question is \nwhether physical therapy is a reasonable treatment. The Claimant has not presented any reliable \nevidence that this treatment is reasonable. Rather Dr. Bruffett has opined that additional medical \ntreatment is not necessary. And as stated previously, I credit this opinion. Thus, I find by the \n\nLANGFORD H206280 \n \n7 \n \npreponderance of the evidence that Claimant has not proven she is entitled to additional medical \ntreatment in the form of physical therapy for her neck.  \nB. Whether Claimant is entitled to additional temporary total disability benefits from \nSeptember 9, 2022, to July 1, 2025. \n \nIn  this  proceeding,  Claimant  has  also  claimed  entitlement  to additional temporary  total \ndisability benefits from September 9, 2022, to July 1, 2025.  Respondents stipulated that they did \npay some benefits under the claim but maintained that Claimant was not entitled to any temporary \ntotal disability benefits. \n The alleged injuries to Claimant’s back and cervical spine are unscheduled.  See Ark. Code \nAnn. § 11-9-521 (Repl. 2012).  An employee who suffers a compensable unscheduled injury is \nentitled to temporary total disability compensation for that period within the healing period in \nwhich she has suffered a total incapacity to earn wages.  Ark. State Hwy. & Transp. Dept. v. \nBreshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  The healing period ends when the underlying \ncondition causing the disability has become stable and nothing further in the way of treatment will \nimprove that condition.  Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). \n The Claimant testified that she is requesting TTD benefits from September 9, 2022, to July \n1, 2025. I have previously found that the Claimant’s healing period ended on February 13, 2023. \nThe Claimant has not presented any reliable evidence demonstrating that she has entered another \nhealing period after February 13, 2023. Therefore, she does not qualify for benefits after that date, \nso my analysis will be from September 9, 2022, to February 13, 2023. The Claimant must prove \nthat she suffered a total incapacity to earn wages during this period. The Claimant has not produced \nany reliable evidence that she suffered a total incapacity to earn wages. The Claimant testified that \nshe did receive TTD benefits at the beginning of her claim. TR 30. And she acknowledged during \nthe hearing that around the time she was receiving TTD benefits she was placed on light duty but \n\nLANGFORD H206280 \n \n8 \n \nrefused to return to work based on her own feelings. TR 30-31. The Claimant has failed to meet \nher burden. Therefore, the Claimant has not proven by the preponderance of the evidence that she \nis entitled to TTD benefits from September 9, 2022, to July 1, 2025.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n IT IS SO ORDERED. \n       ___________________________________  \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":14513,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206280 JACQUELINE LANGFORD, EMPLOYEE CLAIMANT DE WAFELBAKKERS, INC., EMPLOYER RESPONDENT CHUBB INDEM. INS. CO., CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 8, 2025 Hearing before Administrative Law Judge, Steven Porch, on September 9, 2025, in Little Rock...","outcome":"granted","outcomeKeywords":["granted:5","denied:2"],"injuryKeywords":["neck","back","cervical","lumbar","fracture"],"fetchedAt":"2026-05-19T22:35:21.728Z"},{"id":"alj-H403425-2025-10-07","awccNumber":"H403425","decisionDate":"2025-10-07","decisionYear":2025,"opinionType":"alj","claimantName":"David Bonewell","employerName":"Van Buren School District","title":"BONEWELL VS. VAN BUREN SCHOOL DISTRICT AWCC# H403425 October 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BONEWELL_DAVID_H403425_20251007.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BONEWELL_DAVID_H403425_20251007.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H403425 \n \nDAVID BONEWELL, Employee CLAIMANT \n \nVAN BUREN SCHOOL DISTRICT, Employer RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT \n \n \n OPINION FILED OCTOBER 7, 2025 \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney at Law, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n On July  10,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on April 21, 2025, and a Pre-hearing Order \nwas filed on April 22, 2025.   A copy of the Pre-hearing Order has been  marked Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  March \n25, 2024 \n 3. The  claimant  sustained  a  compensable  injury  to  his  left  shoulder  on  or  about  March \n25, 2024. The respondents have controverted any injury to the claimant’s left elbow. \n\nBonewell – H403425 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $552.00 for temporary total disability benefits and $414.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to his left elbow on or about March \n25, 2024. \n 2. Whether Claimant is entitled to medical treatment for his left elbow injury. \n The claimant's contentions are as follows: \n“a.   The   Claimant   contends   that   in   addition   to   sustaining \ncompensable injury to his left shoulder on March 25, 2024 he also \nsustained injury to his left elbow. \n \nb.  The  Claimant  contends  that  he  is  entitled  to  temporary  total \ndisability benefits from whatever date the medical records support \nuntil a date yet to be determined. The  claimant acknowledges that \nhe is currently still working. \n \nc.  The  Claimant  contends  entitlement  to  reasonable  and  necessary \nmedical treatment. \n \nd.   The   claimant   contends   that   his   attorney   is   entitled   to   an \nappropriate attorney’s fee.” \n \n The respondents’ contentions are as follows: \n“Respondents contend that the treating physician has indicated that \nhis  need  for  surgery  is  related  to  preexisting  and  underlying \nproblems and not an acute injury. In light of this, it is Respondents’ \nposition  that  the  surgery  recommended  by  Dr.  Songy  is  not \nreasonable and necessary.” \n \n The claimant in this matter is a 74-year-old male who sustained a compensable injury to \nhis  left  shoulder  on  or  about  March  25,  2024,  while  moving  a  heavy  piece  of  furniture  for  his \nemployer.  The  claimant  alleges  that  he  also  sustained  an  injury  to  his  left  elbow  in  that  same \n\nBonewell – H403425 \n \n-3- \nincident. On direct examination the claimant gave testimony regarding the incident and the injury \nhe alleges to his left elbow as follows: \nQ Tell us about your accident. What happened? \n \nA We had previously moved this one particular  room, all the \ncontents  to  the  library.  The  floor,  the  new  flooring  had  been  laid \nand  it  was  time  for  that  to  be  reinstalled,  all  the  desks  and  chairs \nand  the  teacher  equipment:  Armoires,  file  cabinets,  desks,  et \ncetera. \n \n And on that day there was no help. There was only two of \nus that were to move. We were told that we had to move all of the \ncontents from the library back into the room and have it set up for \nthe teacher’s classes for the next day. \n \n So  the  first  item  that  we  wanted  to  try  to  move  was  the \narmoire because we knew it would cause us the most problems and \nit  had  to  go  in  first.  The  only  way  to  move  the  armoire  is  two – \nthere is only two of us now – we both have to get on one side and \nraise up and we have one dolly on the floor and one of us with one \nfoot  would  kick  it  underneath,  kick  the  dolly  underneath  the \narmoire. We would let the armoire back onto that. \n \n Next, if two people pushed on the other side of the armoire, \nobviously, it would just roll, so one person had to stay on one side \nand  keep  it  from  moving  while  the  other  one  took  a  dolly  on  the \nother  side  and  raised  up  and  with  one  foot  kick  the  other  dolly \nunderneath. \n \n Whenever  I  raised  up,  my  shoulder  popped  and  blow  my \nelbow – it  felt  like  a  huge  rubber  band  popped.  I  felt  it.  And  the \nhelper asked what that noise was and I said, “My shoulder had \npopped.” I said, “I think I am all right,” so we went ahead and \nworked  and  finished.  And  at  the  end  of  the  day,  I  started – my \nelbow started swelling up. \n \nQ Okay. Let me stop you at this point. \n \nA Sure. \n \nQ The  medical  records  say  that  you  reported  that  you  felt  or \nhad a snap in your elbow. Is that what you are talking about when \nyou are describing your elbow? You said it was like a rubber band? \n\nBonewell – H403425 \n \n-4- \n \nA It felt like a rubber band popped between my elbow and my \nforearm. \n \n The  claimant  did  not  immediately  report  his  injury.  However,  the  next  day  the  claimant \ndid  report  his  injury and  was  seen  by  the  respondent/employer’s  nurse.  Direct  examination \ntestimony by the claimant about the reporting of his March 25, 2024, incident follows: \nQ And  did  you  report  that  to  somebody  in  the  supervisory \ncapacity? \n \nA I did not report it that day. I did not want to go through the \npaperwork to report it. I honestly didn’t think it was all that serious \nat all. It didn’t bother me the rest of the day. And the next day I \nkept ice on it. \n \n And one of – the principal was coming by me and asked me \n– I  had  a  bandage,  I  believe,  an  Ace  bandage  around  my  elbow – \nasked me what was wrong and I told him and he said, “Well, it \nlooks awful swollen.” He said, “You need to report that.” \n \n So that was on a Wednesday and I reported it and the next \nmorning it was swollen and they suggested I have the nurse look at \nit. \n \n So the nurse – \n \nQ You can’t tell me what the nurse told you or any of that, but \nyou went and had the nurse look at it; is that correct? \n \nA Yes. \n \nQ And  were  you  referred  to  get  medical  treatment?  Did  your \nemployer send you somewhere to get medical treatment? \n \nA On  Thursday  morning,  they  sent  me  to  Occupational  at \nRegions Park in Fort Smith. \n \n  The respondent sent the claimant for medical treatment at Mercy Occupational Medicine \nFort Smith on March 28, 2024. At that time the claimant was seen by APN Tawni Glander. The \nclaimant was diagnosed with a strain of muscle and tendon of the rotator cuff, left shoulder, and \n\nBonewell – H403425 \n \n-5- \nlateral epicondylitis, left elbow. The report from that visit also states, “This is the first visit for the \nleft  shoulder  and  elbow  injury.  X-rays  without  bony  abnormality,  due  to  weakness  in  the  left \nelbow  and  arm  with  associated  symptoms  to  his  left  hand,  recommend  MRI  left  elbow  and  left \nshoulder. Follow-up once complete.” \n On  April  7,  2024,  the  claimant  underwent  an  MRI  of  his  left  elbow  at  Mercy  Hospital \nFort Smith. Following is a portion of that diagnostic report: \nIMPRESSION: \n1. Prominent osteoarthritis left elbow with joint effusion and loose \nbodies present. \n2.  Complete  tear  radial  collateral  ligament  and  likely  lateral  ulnar \ncollateral ligament.  \n3.  Some  mild  tendinosis  common  flexor/extensor  groups  with  a \npossible  mild  strain  common  flexors  with  some  associated  soft \ntissue edema. \n \n On  April  8,  2024,  the  claimant  was  again  seen  at  Mercy  Occupational  Medicine  Fort \nSmith and the claimant’s diagnosis regarding his left elbow was changed to “traumatic rupture of \nleft  radial  collateral  ligament  and  traumatic  rupture  of  left  ulnar  collateral  ligament.”  The \nclaimant was referred to an orthopedic doctor at that time.  \n Medical records and the claimant’s testimony are in agreement that the claimant’s left \nelbow  was  not  focused  on  at  the  start  of  his  treatment  with  an  orthopedist.  Instead,  his \ncompensable left shoulder injury and a non-work-related right shoulder problem were dealt with \nfirst. On January 16, 2025, the claimant began treatment for his left elbow injury with Dr. Chad \nSongy,  whom  is  an  orthopedic  surgeon.  Following  is  a  portion  of  the  medical  report  from  that \nvisit: \nHistory of Present Illness: \nDavid  Bonewell  is  a  74  y.o.  male  who  is  here  today  for  his  left \nelbow.  He  is  a  left-hand  dominant  male  who  works  for  the  Van \nBuren  School  System.  He  sustained  an  injury  at  work,  this  is  a \n\nBonewell – H403425 \n \n-6- \nworker’s Comp injury. Injury was on 03/25/2024. The patient was \nmoving  a  storage  cabinet  and  he  felt  a  pop  in  his  shoulder  and  a \nsnap in his elbow. We have treated him  for both  his right and left \nshoulder.  He  has  had  elbow  pain  is  entire  time,  but  we  have \nfocused on the shoulders 1\nst\n. Here today to discuss his left elbow. \n \n*** \nPlan \nDavid Bonewell is a 74 y.o. male who is here today to discuss his \nleft elbow. He had a worker’s Comp injury which has affected both \nthe  right  and  left  shoulder  as  well  as  his  left  elbow.  He  has \nundergone rotator cuff repairs of both shoulders. Today’s visit is \nspecifically to discuss his left elbow. \n \nThe   patient   has   advanced   elbow   arthritis   affecting   both   the \nradiocapitellar  and  ulnohumeral  joint.  This  arthritis  was  certainly \npre-existing and is associated with intra-articular  loose bodies. He \ncertainly  could  have  had  an  arthritic  flare  with  this  injury  (acute \nworsening of a pre-existing problem), but the osteoarthritis and the \nloose  bodies  were  pre-existing.  I  also  suspect  the  majority  of  the \ndamage  to  his  tendons  were  present  as  well  associated  with  the \ndegenerative  changes  in  the  joint,  but  we  are  unable  to  determine \nthis  without  a  pre-existing  MRI.  The  patient  also  has  moderate  to \nsevere  ulnar  nerve  neuropathy/cubital  tunnel  syndrome.  We  have \npreviously  tried  an  intra-articular  steroid  injection  without  lasting \nrelief  or  improvement.  The  patient  states  he  had  no  pre-existing \npain  or  problems  in  this  left  elbow  are  issues  with  the  numbness \nand  tingling  in  his  hand.  This  is  an  acute  worsening  of  a  pre-\nexisting problem. If he were to have treatment for the left elbow, I \nwould   recommend   a   left   elbow   arthroscopy   with   extensive \ndebridement,  loose  body  removal,  and  cubital  tunnel  release.  He \nwould need a CT scan prior to that. \n \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \n\nBonewell – H403425 \n \n-7- \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n The  claimant  does  have  objective  medical  findings  regarding  his  left  elbow.  Some  of \nthose  findings  are  due  to  pre-existing  degenerative  changes  in  the  claimant’s  left  elbow. \nHowever, the MRI also revealed a traumatic rupture of the claimant’s left radial collateral and \nleft  ulnar  collateral  ligaments  as  diagnosed  in  his  April  8,  2024,  visit  to  Mercy  Occupational \nMedicine after his MRI of the left elbow. Dr. Songy also states that “this is an acute worsening \nof  a  pre-existing problem.” The claimant told Dr. Songy that he had no pre-existing  pain  or \nproblems with his left elbow before his March 25, 2024, incident. The claimant gave testimony \nconsistent with that statement at the hearing in this matter as follows: \nQ Okay.  There  is  a  report  from  Dr.  Songy  that  is  dated \nJanuary 16 of 2025 – it’s on Page 17 of Claimant’s Exhibit, Judge \n– and he says that, “He has had elbow pain the entire time, but we \nfocused on the shoulders first.” Is that what happened? \n \nA Yes. \n \nQ And  then  on  Page  21  of  that  same  report  it  says – talking \nabout  your  elbow – “This is an acute worsening of a preexisting \nproblem.” \n \n Now,  as  far  as  any  preexisting  problem  is  concerned,  was \nthere anything visibly wrong with your elbow before this accident \nthat happened on March the 25\nth\n of 2024? Could you look at your \nelbow and tell if there was anything wrong with it? \n \nA No. \n \nQ Did  you  limit  your  activities  in  terms  of  the  use  of  your \nelbow,  your  left  elbow,  in  any  way  before  this  March  25,  2024 \naccident? \n \nA No. \n \nQ When  did  you  first  become  aware  that  you  had  any  issue \nwith your left elbow? \n \n\nBonewell – H403425 \n \n-8- \nA After the accident. \n \nQ Have you injured your elbow at any other time? \n \nA No, sir. \n \nQ Could  you  have  performed  the  job  duties  that  you  have \ndescribed here today if your left elbow was in the condition before \nthe March 25, 2024  accident than it was after the March 25, 2024 \naccident? In other words, with your elbow in its current condition, \ncould you have done all that work that you did before the accident? \n \nA I could before. Not after. \n \n The  claimant  has,  since  his  March  25,  2024,  incident,  consistently  reported  pain \nassociated with his left elbow. Dr. Songy’s January 16, 2025, report states, “He has had elbow \npain  is  [SIC] entire time,  but  we  have  focused  on  the  claimant’s  shoulders  first.”  In  the \nclaimant’s first visit to a medical provider on March 28, 2024, the claimant complained of left \nelbow difficulties. The claimant is able to establish a causal connection between the incident he \nalleges on March 25, 2024, and the objective medical findings in his left elbow. The claimant is \nable to prove by a preponderance of the  evidence that he sustained a compensable injury to his \nleft elbow on March 25, 2024, while lifting a heavy piece of furniture for his employer.  \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 21, 2025, and contained in a Pre-hearing Order filed April 22, 2025, are hereby accepted as \nfact. \n\nBonewell – H403425 \n \n-9- \n 2. The  claimant has  proven by  a  preponderance  of  the  evidence  that  he  sustained  a \ncompensable injury to his left elbow on or about March 25, 2024. \n 3.  The  claimant has  proven by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nmedical treatment for his compensable left elbow injury. \n ORDER \nThe  respondents  shall  pay  for reasonable  and  necessary medical treatment associated \nwith the claimant’s compensable left elbow injury.  \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":16790,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H403425 DAVID BONEWELL, Employee CLAIMANT VAN BUREN SCHOOL DISTRICT, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT OPINION FILED OCTOBER 7, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Ar...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["shoulder","back","strain","rotator cuff"],"fetchedAt":"2026-05-19T22:35:15.349Z"},{"id":"alj-H403993-2025-10-07","awccNumber":"H403993","decisionDate":"2025-10-07","decisionYear":2025,"opinionType":"alj","claimantName":"Brandyn Nelson","employerName":"Baptist Health","title":"NELSON VS. BAPTIST HEALTH AWCC# H403993 October 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Nelson_Brandyn_H403993_20251007.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Nelson_Brandyn_H403993_20251007.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H403993 \n \nBRANDYN NELSON, \nEMPLOYEE                                                                                                              CLAIMANT \n \nBAPTIST HEALTH, \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nCLAIMS ADMINISTRATIVE SERVICES, \nTPA                                                                                                                        RESPONDENT \n \n \n \nOPINION FILED OCTOBER 7, 2025 \n \nHearing conducted on Tuesday, September 9, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant is Pro Se, of Little Rock, Arkansas.  \n \nThe Respondents were represented by Ms. Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non July 7, 2025.  A hearing on the motion was conducted on September 9, 2025, in Little Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as  a hospital  professional.  The  date \nfor  Claimant’s  alleged  injury  was  on January   27,   2023. He   reported   his injury   to \nRespondent/Employer on the same day as the incident. Admitted into evidence was Respondents’ \nExhibit 1,  pleadings,  and  correspondence,  consisting  of 10 pages,  and Commission  Ex. 1, \ncorrespondence, and U.S. Mail return receipts, consisting of 8 pages, as discussed infra. \n\nNELSON, AWCC No. H403993 \n \n2 \n \nThe record reflects on June 21, 2024, a Form AR-C was filed by then-attorney Laura Beth \nYork, purporting that Claimant sustained work-related injury when he was stuck by a needle from \na trash can. The form further purported that the Claimant was diagnosed with HIV. On June 26, \n2024,  a  Form  AR-1  was  filed  with  the  Commission noting  that the  incident  occurred  when \nClaimant was pulling trash out of an emergency room exam room when a needle from a trash can \nstuck  him  in  his  hand. On June  26,  2024,  a  Form  AR-2  was  filed  accepting  compensability.  \nHowever,  on  November  12,  2024,  an  amended Form  AR-2  was  filed by  Respondents denying \ncompensability.  \nOn May 23, 2025, Claimant’s counsel file a motion to withdraw as counsel of record. The \nFull  Commission  granted  Claimant  counsel’s  motion  on  June  12,  2025. On July  7,  2025, \nRespondents filed  a  Motion  to  Dismiss due  to Claimant’s failure to  prosecute his claim. The \nClaimant  was  sent, on July 10,  2025, notice  of  the  Motion  to  Dismiss, via certified  and  regular \nU.S. Mail, to his last known address. The certified motion notice was not claimed by Claimant as \nnoted on the July 25, 2025, return receipt. This notice sent regular U.S. Mail did not return to the \nCommission. The  Claimant  did not respond  to  the  Motion,  in  writing,  as  required. Thus,  in \naccordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice of \nRespondents’ Motion to Dismiss hearing date at his current address of record via the United States \nPostal  Service  (USPS), First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-\nClass Mail, on August 7, 2025. The certified notice was claimed as noted by the August 14, 2025, \nreturn receipt. Likewise,  the  hearing  notice  sent  regular  First-Class  was  not  returned  to  the \nCommission. The  hearing  took  place  on September  9,  2025.  And  as  mentioned  before,  the \nClaimant did not show up to the hearing. \n \n\nNELSON, AWCC No. H403993 \n \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the September  9, \n2025, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was claimed by Claimant, per the return postal notice bearing the August 14, 2025, date. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \n\nNELSON, AWCC No. H403993 \n \n4 \n \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \nAR-C on June 21, 2024. Since then, he has failed to request a bona fide hearing. Therefore, I do \nfind by the preponderance of the evidence that Claimant has failed to prosecute his claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6130,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H403993 BRANDYN NELSON, EMPLOYEE CLAIMANT BAPTIST HEALTH, SELF-INSURED EMPLOYER RESPONDENT CLAIMS ADMINISTRATIVE SERVICES, TPA RESPONDENT OPINION FILED OCTOBER 7, 2025 Hearing conducted on Tuesday, September 9, 2025, before the Arkansas Workers’ Compensation ...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:35:17.497Z"},{"id":"alj-H207304-2025-10-07","awccNumber":"H207304","decisionDate":"2025-10-07","decisionYear":2025,"opinionType":"alj","claimantName":"Michael Schneider","employerName":"Hiland Dairy Foods Co., LLC","title":"SCHNEIDER VS. HILAND DAIRY FOODS CO., LLC AWCC# H207304 October 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SCHNEIDER_MICHAEL_H207304_20251007.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCHNEIDER_MICHAEL_H207304_20251007.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H207304 \n \nMICHAEL SCHNEIDER, Employee CLAIMANT \n \nHILAND DAIRY FOODS CO., LLC, Employer RESPONDENT \n \nCCMSI, Carrier RESPONDENT \n \n \n OPINION FILED OCTOBER 7, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by ERIC NEWKIRK, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On July  15,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.   A pre-hearing conference was conducted on April 14, 2025, and a Pre-hearing Order \nwas filed on April 15, 2025.   A copy of the Pre-hearing Order has been  marked Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The   relationship   of   employee-employer-carrier   existed   between   the   parties on \nSeptember 28, 2022. \n 3. The claimant sustained a compensable right thumb injury on or about September 28, \n2022. \n By agreement of the parties the issues to litigate are limited to the following: \n\nSchneider – H207304 \n \n-2- \n 1. Whether Claimant is entitled to additional medical treatment for his compensable right \nthumb injury. \n The claimant's contentions are as follows: \n“Claimant contends he is entitled to medical treatment for his right \nthumb   as   recommended   by   Dr.   Dougherty   in   the   form   of \ninjections. Claimant reserves all other issues.” \n \n The respondents’ contentions are as follows: \n“1. The Respondents contend that all reasonably necessary medical \ntreatment has been and continue to be provided for the Claimant’s \nright  thumb  injury.  However,  the  proposed  PRP/fat  injections  are \nexperimental   in   nature   and   not   reasonably   necessary   medical \ntreatment.   Thus,   medical   treatment   in   the   form   of   PRP/fat \ninjections  are  not  owed  in  connection  with  this  claim  pursuant  to \nArkansas   law.   More   specifically,   Claimant   can   cite   no   case \nwhatsoever  whereby  such  injections  have  been  allowed  by  the \nArkansas Workers’ Compensation Commission and deemed to be \nreasonably necessary medical treatment. \n \n2.  By  way  of  alternative  contention,  the  Respondents  plead  an \noffset  for  any  group  medical  insurance  benefits  paid  on  behalf  of \nthe Claimant.” \n \n The claimant in this matter is a 42-year-old male who sustained a compensable injury to \nhis  right  thumb  on  September  28,  2022.  The  claimant  has  asked  the  Commission  to  determine \nwhether he is entitled to additional medical treatment for his compensable right thumb injury. At \nthe  hearing  in  this  matter  the  claimant  described  how  he  sustained  a  compensable  right  thumb \ninjury as follows: \nQ And did you have an injury in September of 2022? \n \nA I did. \n \nQ What happened to your right hand? \n \n\nSchneider – H207304 \n \n-3- \nA It  got  caught  in  between  the  cooling  bed  and  a  bar.  And  I \nusually got a clutch on it where you can release it and it didn’t. It \nhad been tightened down, so I had to rip it out. \n \nQ Rip out the clutch or your hand? \n \nA My hand. \n \nQ And what kind of damage was done to your hand? \n \nA It cut my tendon and snapped my thumb. \n \nQ And did you go to the emergency room for that? \n \nA Yes. I clocked out and drove to the emergency room. \n \n The claimant has since his September 28, 2022, compensable injury undergone extensive \nmedical  treatment  regarding  his  right  thumb.  The  claimant’s  treatment  has  included  four \ndifferent  surgical  interventions  into  his  right  thumb  by  several  different  physicians.  The \nclaimant’s first surgery was performed by Dr. Matthew Coker on the day of his injury. The \nsecond surgery was performed by Dr. Jeffrey Johnson on October 7, 2022. His third surgery was \nto remove hardware in his thumb which was performed by Dr. Patrick Brannan on November 10, \n2022. In Dr. Brannan’s progress note dated December 1, 2022, he provides a brief summation of \nthe claimant’s first three surgeries as follows: \nHistory: \nPatient is a 39-year-old male here for follow-up of his right thumb. \nHe underwent open reduction and pinning on 28 September after a \ncrush injury and then subsequently ELP repair 7  October. His last \nvisit his pins were removed. Specifically pins were removed on the \n10\nth\n November rough 6 weeks post injury. Currently today he still \nhas no use of his right hand. Specifically the based on restrictions. \n \n On February 24, 2023, Dr. Brannan performed a fourth surgery on the claimant’s right \nthumb. Following is a portion of that operative report: \nPREOPERATIVE DIAGNOSES: \n\nSchneider – H207304 \n \n-4- \n1. Right thumb metacarpal nonunion. \n2. Right thumb chronic extensor pollicis longus recurrent tear. \n \nPOSTOPERATIVE DIAGNOSES: Same \n \nOPERATION: \n1.  Open  reduction,  internal  fixation  right  thumb  metacarpal  with \nlocal bone grafting. \n2. Right thumb extensor indicis proprius to extensor pollicis longus \ntendon transfer. \n \n On June 19, 2023, the claimant was seen by Dr. Brannan. Following is a portion of that \nmedical record: \nHistory of Present Illness: \nMichael  Schneider  is  a  40  y.o.  male  here  for  follow-up  of  left \nthumb.  Status  reduction  internal  fixation  of  bone  grafting  of  the \nthumb   metacarpal   nonunion.   Date   of   surgery   24   February. \nAdditionally  has  been  using  a  bone  stimulator  as  well  as  been \nsuccessful   in   doing   well   with   smoking   since   cessation.   Still \nattending  occupational  therapy.  Also  had  a  EIP  and  EPL  tendon \ntransfer. \n \n*** \nPlan \nMichael Schneider is a 40 y.o. male \nOverall  from  a  functional  standpoint  he  continues  to  improve.  He \nhas  shown reasonably  good  compliance  with  the  bone  stimulator. \nHe continues to be compliant with smoking cessation. Clinically he \nfeels  better  and  radiographically  it  appears  he  is  healing  I  suspect \nwill  be  good  radiographically  healed  in  6-8  weeks.  Advanced  his \nleft back number the 20 lb. At the conclusion we will definitely get \nan  impairment  rating.  Maximum  medical  improvement  in  6-8 \nweeks.  We  will  discuss  later  whether  to  obtain  an  FCE.  Provide \nreferral  to  occupational  therapy  to  extend  therapy  1  to  2  times  a \nweek times and additional month. \n \n On  July  20,  2023,  the  claimant  was  seen  by  Dr.  Brannan.  Following  is  a  portion  of  the \nmedical records from that visit: \nPlan: \nPatient  is  looking  good  at  this  point.  I  think  we  have  now  gotten \nhealed.  He  can  perform  activity  as  tolerated.  No  restrictions  for \n\nSchneider – H207304 \n \n-5- \nwork. He is now at maximum medical improvement. No doubt his \nthumb is not perfect. The EIP to ELP tendon transfer is not adding \na  lot  from  a  functional  standpoint.  My  guess  is  the  tendons \nprobably  scarred  in  the  region  where  his  fracture  in  fixation  is. \nHopefully over time this will get a little bit better. He needs to go \nahead and get an impairment rating at this point. No FCU required. \nAll see him back after his impairment rating. \n \nDr.  Brannan  returned  the  claimant  to  work  without  restrictions  and  sent  him  for  an  impairment \nevaluation at that time. \n On  November  6,  2024,  the  claimant  began  to  see  Dr.  Christopher  Dougherty.  The \nclaimant was asked on direct examination about the gap in time between the end of his treatment \nwith Dr. Brannan and the start of his treatment with Dr. Dougherty as follows: \nQ Now,  Dr.  Brannan,  according  to  our  medical  records,  last \nsaw you it looks like in July of 2023. Do you think that is true? \n \nA Sounds about right. \n \nQ And then you saw Dr. Dougherty in 2024? \n \nA November, I believe. \n \nQ Yes,  November  of  2024.  Why  was  there  that  delay  in \nbetween Dr. Brannan and Dr. Dougherty? \n \nA He said it would get better and I just wanted to give it time, \nbut  it  just  wasn’t  getting  better.  And  just  more  pain,  so  I  just \nwanted to figure something out, how to help this out. \n \nFollowing is a portion of the medical report from the claimant’s November 6, 2024, visit with \nDr. Dougherty: \nProblems \nReviewed Problems: \n*Osteoarthritis    of    proximal    interphalangeal    joint – Onset: \n11/06/2024 \n*Closed fracture of thumb metacarpal – Onset: 11/06/2024, Right \n \n*** \n\nSchneider – H207304 \n \n-6- \nAssessment/Plan \nPatient  presents  today  with  right  hand  pain  that  follows  a  work-\nrelated  injury  on  9/28/2022.  His  hand  was  stuck  in  a  piece  of \nmachinery  and   caused  a  fracture  of  the  first  metacarpal   and \nsevering  of  the  flexor  tendons.  He  had  an  ORIF  on  9/28/2022 \nfollowed by 4 more surgeries to fixed the failed ORIF and reattach \nthe  tendon.  He  has  been  taking  ibuprofen  to  get  some  relief  but \ncontinues to have pain and limited range of motion. \n \nHe  would  benefit  from  PRP  or  a  fat  injection  to  help  with \npersistent pain due to his osteoarthritis. \n \nOsteoarthritis of proximal interphalangeal joint \nM15.2: Bouchard’s nodes (with arthropathy) \nM25.541: pain in joints of right hand \nXR, HAND 3 OR MORE VIEW \nSide: RIGHT view (X-RAY HAND); AP, Lateral, Oblique \n \nXR, HAND, 3 OR MORE VIEW \nSide: RIGHT, Views (X-RAY, HAND), AP, Lateral, Oblique \nResult:  Well  healed  fracture  of  first  metacarpal  with  hardware  in \nplace. \n \n On June 2, 2025, the claimant’s attorney wrote Dr. Dougherty a letter which is found at \nClaimant’s Exhibit 1, page 58. That letter addresses the claimant’s osteoarthritis and its relation \nto the claimant’s work accident. Dr. Dougherty writes a small note on the bottom right hand of \nthat letter and signs it, “Osteoarthritis is post-traumatic due to work accident.” That note is dated \nJune 11, 2025. \nThe claimant has asked the Commission to determine whether he is entitled to additional \nmedical  treatment  for  his  compensable  right  thumb  injury.  The  claimant’s  contentions \nspecifically discuss the injections recommended by Dr. Dougherty.  \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \n\nSchneider – H207304 \n \n-7- \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \nAn  employer  shall  promptly  provide  for  an  injured  employee  such  medical  treatment  as \nmay be reasonably necessary in connection with the injury received by the employee. Ark. Code \nAnn. §11-9-508(a)(1). The claimant bears the burden of proving that he is entitled to additional \nmedical treatment. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). \n Without  question,  the  claimant  has  had  extensive  medical  treatment  in  the  form  of \nsurgical  intervention,  occupational  therapy,  and  even  bone  stimulation  treatment.  The  medical \nrecords  and  testimony  of  the  claimant  agree  that  the  claimant  has  been  compliant  with  his \ntreatment plans even to the point of tobacco cessation. At the hearing in this matter the claimant \ngave testimony about his continued problems after being released to return to work as follows:  \nOn direct examination: \nQ So when you get back to Hiland Dairy, what kind of work \nwere you doing? \n \nA I went back to maintenance. \n \nQ And did you have any trouble doing that with your hand? \n \nA I did. I couldn’t – like nuts and stuff, I couldn’t feel them. I \ncouldn’t grab things like I used to. I had to learn to do everything \nwith my left hand. \n \nQ Were  you  having  any  range  of  motion  problems with  your \nright hand? \n \nA I was. \n \nQ Can you describe what that was? \n\nSchneider – H207304 \n \n-8- \n \nA Well,  just  like  gripping  things,  you  know,  like  I  say, \nnumbness and trying to put bolts and screws together, it just made \nit very difficult. \n \nQ Were you able to make a tight fist? \n \nA No. Still can’t. \n \nQ And why not? \n \nA Restrictions. It just won’t go down. \n \nQ And when you say it won’t go down, what are you talking \nabout? \n \nA Like this one will go down; that one won’t (indicating). \n \nQ Okay. Are you talking about your thumbs? \n \nA My thumbs. \n \nQ Okay. And are you still working with Hiland Dairy? \n \nA I am not. \n \nQ Who do you work for now? \n \nA American AC & Mechanical. \n \nQ And what do you do there? \n \nA I am a plumber and a welder. \n \nQ All  right.  And  does  your  right  hand  give  you  any  trouble \nwith your welding or your plumbing? \n \nA It does. \n \nQ What kind of trouble? \n \nA Holding a stringer to weld, I can’t grip as long as I used to \nbe able to. You know, I am constantly stopping and I shouldn’t be. \nAs  far  as  like  sanding – because  of  my  wrist,  too – sanding  the \ncopper and all of that, it just slows me way down. \n\nSchneider – H207304 \n \n-9- \n \nOn cross examination: \nQ As far as the grip strength and things of that nature, there is \nnothing  in  his  report  or  the  literature  that  I  have  read  to  indicate \nthat  it  would  help  the  grip  issues,  but  there  is  something  you \nbelieve that it would help the grip issues? \n \nA That is my understanding, that it would. \n \nQ Is it your hope or your understanding? \n \nA My hope and my understanding. \n \nQ All  right.  Do  you  recall  that  I  guess  in  May  of  2024  when \nyou had last been to Dr. Brannan that you were doing well and he \nwas very pleased with where you stood at that point in 2024? \n \nA Yes. He was pleased with the healing. \n \nQ Okay. And then you decided to get a change of physician to \nDr. Dougherty after that? \n \nA Yes. After a year. \n \nQ After he released you to return to work? \n \nA Yes. \n \nOn re-direct examination: \nQ Again,  I  don’t  want  to  know  what  he  said,  but  had  Dr. \nBrannan  offered  you  other  options  for  treatment  once  he  released \nyou? \n \nA He did not. \n \nQ Do  you  think  if  you  had  less  pain  in  your  right  hand  that \nyou could move it more? \n \n MR. NEWKIRK: Objection. Speculation, Your Honor. \n \n MS. BROOKS: Well, that is what he thinks about his own \nhand, Your Honor. \n \n\nSchneider – H207304 \n \n-10- \n MR.  NEWKIRK:  It  is  asking  him  to  speculate.  Kind  of \nasking for a medical opinion as well. \n \n THE COURT: I am going to give you the same little bit of \nrope I gave him. \n \nQ [BY MS. BROOKS]: Do you remember the question? \n \nA I believe it would help me. \n \nQ I am sorry, what? \n \nA I believe it would help. \n \nQ Okay.  And  again,  were  you  able  to  talk  do  Dr.  Dougherty \nabout the goals of these injections? \n \nA Yes. \n \nQ And do you feel like you want these injections? \n \nA I believe him enough that, yes, I do. \n \n Dr. Dougerty is recommending treatment for the claimant’s osteoarthritis in his right \nthumb due to his compensable right thumb injury. That treatment, as stated in his November 6, \n2024,  record, is “PRP or a fat injection to help with persistent pain due to his osteoarthritis.” \nBoth  parties  have  submitted  articles  regarding  PRP  (platelet-rich  plasma).  I  find  neither  article \nmore   persuasive   than   Dr.   Dougherty,   a   well-known  orthopedist  in  Northwest  Arkansas’ \nrecommendation  for  injection.  The  article  provided  by  the  respondent  does  include  information \nthat PRP is not FDA approved; however, no party has provided the Commission with a citation \nor  statute  that  prohibits  non-FDA  approved  medical  treatment.  The  claimant  has  gone  through \nmuch medical treatment, given his thumb time to heal, and yet  I find he still needs treatment.  I \nfind  that  the  treatment  offered  by  Dr.  Dougherty  to  be  reasonable  and  necessary  medical \ntreatment for the claimant’s compensable right thumb injury. \n\nSchneider – H207304 \n \n-11- \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 14, 2025, and contained in a Pre-hearing Order filed April 15, 2025, are hereby accepted as \nfact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nadditional medical treatment for his compensable right thumb injury; specifically, the treatment \nrecommended by Dr. Dougherty in his November 6, 2024, medical report regarding the claimant. \n ORDER \nThe  respondents  shall  pay  for  medical  expenses  associated  with  the  claimant’s \ncompensable  right  thumb  injury;  specifically,  injections  recommended  by  Dr.  Dougherty  in  his \nNovember 6, 2024, medical report regarding the claimant. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n \n\nSchneider – H207304 \n \n-12- \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":18483,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H207304 MICHAEL SCHNEIDER, Employee CLAIMANT HILAND DAIRY FOODS CO., LLC, Employer RESPONDENT CCMSI, Carrier RESPONDENT OPINION FILED OCTOBER 7, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant ...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","fracture","wrist"],"fetchedAt":"2026-05-19T22:35:19.649Z"},{"id":"full_commission-H101491-2025-10-03","awccNumber":"H101491","decisionDate":"2025-10-03","decisionYear":2025,"opinionType":"full_commission","claimantName":"Earvin Davis","employerName":"Bernhard Mcc, LLC","title":"DAVIS VS. BERNHARD MCC, LLC AWCC# H101491 October 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Davis_Earvin_H101491_20251003.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Davis_Earvin_H101491_20251003.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H101491 \n \nEARVIN DAVIS, JR., EMPLOYEE  CLAIMANT \n \nBERNHARD MCC, LLC, EMPLOYER RESPONDENT \n \nTRAVELERS PROPERTY CASUALTY OF  \nAMERICA, INSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED OCTOBER 3, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant is pro se. \n \nRespondents represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed April 4, 2025.  In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim.  \n \n2. The stipulations as set forth above are accepted.  \n \n3. The claimant failed to prove by a preponderance of the evidence \nthat he suffered a compensable injury to his shoulders by specific \nincident.  \n \n\n \nDAVIS - H101491  2\n  \n \n \n4. The claimant failed to prove by a preponderance of the evidence \nthat he is entitled to reasonable and necessary medical treatment \nof his alleged injuries. \n \n5. Because  the  claimant  failed  to  prove  a  compensable  injury  for \nwhich the respondents may be liable, as indicated in Finding and \nConclusion No 3, above, their affirmatively-plead Shippers Defense \nis moot and will not be addressed in this opinion.  \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's April 4, 2025 \ndecision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n \n \n \n \n\n \nDAVIS - H101491  3\n  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2479,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H101491 EARVIN DAVIS, JR., EMPLOYEE CLAIMANT BERNHARD MCC, LLC, EMPLOYER RESPONDENT TRAVELERS PROPERTY CASUALTY OF AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 3, 2025 Upon review before the FULL COMMISSION ...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.959Z"},{"id":"alj-H402969-2025-10-03","awccNumber":"H402969","decisionDate":"2025-10-03","decisionYear":2025,"opinionType":"alj","claimantName":"Harry Billingsley","employerName":"Allegis Group, Inc","title":"BILLINGSLEY VS. ALLEGIS GROUP, INC. AWCC# H402969 October 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Billingsley_Harry_H402969_20251003.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Billingsley_Harry_H402969_20251003.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H402969 \n \n \nHARRY L. BILLINGSLEY, EMPLOYEE CLAIMANT \n \nALLEGIS GROUP, INC., \nEMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 3, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on October 3,  2025, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Eric Newkirk, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This   matter   comes  before  the   Commission   on  the   Motion   to   Dismiss   by \nRespondents.    A  hearing  on  the  motion  was  conducted  on October 3,  2025,  in \nJonesboro, Arkansas.  No testimony was taken in the case.  Claimant, who according to \nCommission records is pro se, failed to appear at the hearing.  Admitted into evidence \nwere    Commission    Exhibit    1 (see Ark.    Code    Ann. § 11-9-705(a)(1)    (Repl. \n2012)(Commission must “conduct the hearing . . . in a manner which best ascertains the \nrights of the parties”) and Respondents’ Exhibit 1, pleadings, correspondence and forms \nrelated to this claim, consisting of 17 and 19 pages, respectively. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on May  10,  2024,  Claimant \npurportedly suffered an injury to his left knee when he blacked out from heat and fell at \n\nBILLINGSLEY – H402969 \n \n2 \n \nwork on May  1,  2024.   According  to  the  Form  AR-2  that  was  filed  on May  10,  2024, \nRespondents accepted the  claim as compensable  and  paid  medical  and  indemnity \nbenefits pursuant thereto. \n On May 6, 2024, through then-counsel Mark Alan Peoples, Claimant filed a Form \nAR-C.  Therein, he alleged that his client injured his right knee in a “work accident” that \nallegedly took  place on  May  1,  2024.   No  boxes  were  checked  on  the form  to  indicate \nwhat initial and/or additional benefits that Claimant was seeking. \n In  an email  to  the  Commission  sent  on  September  1,  2024, Peoples moved  to \nwithdraw  from  the  case.    In  an  Order  entered  on September  25,  2024,  the  Full \nCommission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until July 22, \n2025.   On that date, Respondents filed  the instant motion and brief  in  support  thereof, \nasking  for  dismissal of  the  claim  under  AWCC  R.  099.13 (now  codified  at 11  C.A.R.  § \n25-110(d)) and  Ark.  Code  Ann.  §  11-9-702(d) (Repl.  2012).   The  file  was  assigned  to \nme  on  July  23,  2025;  and  on  that  same  date,  my  office  wrote  Claimant,  asking  for  a \nresponse to the motion within 20 days.  The letter that was sent by first class mail to the \nMemphis, Tennessee address of Claimant listed in the file and on his Form AR-C was \nnot  returned.   However,  no  response  from him to  the  motion  was  forthcoming.    On \nAugust  21,  2025, a  hearing  on  the  Motion  to  Dismiss  was  scheduled  for October 3, \n2024, at 12:00 p.m. at the Craighead County Courthouse in Jonesboro.  The Notice of \nHearing was  sent  to  Claimant  via  first-class  and  certified  mail  to  the same Memphis, \n\nBILLINGSLEY – H402969 \n \n3 \n \nTennessee address as before.  Someone with an illegible signature claimed the certified \nletter on August  28,  2025; and the one  sent  by  first-class mail  was  not returned to  the \nCommission. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on October 3, \n2025.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared \nthrough counsel and argued for dismissal under the aforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other  matters \nproperly before the Commission, the following Findings of Fact and Conclusions of Law \nare hereby made in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under 11 C.A.R. § 25-110(d). \n4. The Motion to Dismiss is hereby granted; this claim for additional benefits \nis hereby dismissed without prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) reads: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \n\nBILLINGSLEY – H402969 \n \n4 \n \ndismissed   for   want   of   prosecution,   the   Commission   may,   upon \nreasonable  notice  to  all  parties,  enter  an  order  dismissing  the  claim  for \nwant of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. \n2012) must prove their entitlement to the relief requested—dismissal of the claim—by a \npreponderance  of  the  evidence.    This  standard  means  the  evidence  having  greater \nweight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As  shown  by  the  evidence  recounted  above,  (1)  the  parties  were  provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon; and (2) Claimant \nhas  failed  to  pursue  his claim  because  he  has  taken  no  further  action  in  pursuit  of  it \n(including  appearing  at  the October 3,  2025,  hearing  to  argue  against  its  dismissal) \nsince the  filing  of  his Form  AR-C on May  6,  2024.    Thus,  the  evidence  preponderates \nthat dismissal is warranted under § 25-110(d).  Because of this finding, it is unnecessary \nto address the application of Ark. Code Ann. § 11-9-702(d) (Repl. 2012). \n That leaves the question of whether the dismissal of the claim should be with or \nwithout  prejudice.    The  Commission  possesses  the  authority  to  dismiss  claims  with \nprejudice.  Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 \n(1988).    The  Commission  and  the  appellate  courts  have  expressed  a  preference  for \ndismissals without  prejudice.   See Professional  Adjustment  Bureau  v.  Strong,  75  Ark. \n249,  629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for  a  dismissal \n\nBILLINGSLEY – H402969 \n \n5 \n \nwithout prejudice.  I agree and find that the dismissal of this claim should be and hereby \nis entered without prejudice.\n1\n \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the same \ncause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7247,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H402969 HARRY L. BILLINGSLEY, EMPLOYEE CLAIMANT ALLEGIS GROUP, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED OCTOBER 3, 2025 Hearing before Administrative Law Judge O. Milton Fine II on October 3, 2025, in Jonesbo...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:35:11.212Z"},{"id":"alj-H405484-2025-10-03","awccNumber":"H405484","decisionDate":"2025-10-03","decisionYear":2025,"opinionType":"alj","claimantName":"Brianna Gatewood","employerName":"Family Dollar Stores, Inc","title":"GATEWOOD VS. FAMILY DOLLAR STORES, INC. AWCC# H405484 October 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Gatewood_Brianna_H405484_20251003.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Gatewood_Brianna_H405484_20251003.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. 405484 \n \nBRIANNA GATEWOOD, EMPLOYEE CLAIMANT \n \nFAMILY DOLLAR STORES, INC., \n EMPLOYER RESPONDENT \n \nSAFETY NATIONAL CASUALTY CORP., \n CARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 3, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 3, 2025, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant  represented  by  Mr. Mark  Alan  Peoples,  Attorney  at  Law, Little  Rock, \nArkansas (neither appearing). \n \nRespondents represented by Ms. Carol Lockard Worley, Worley, Wood & Parrish, \nAttorneys at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on October  3,  2025, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.   Claimant and  her \ncounsel  waived their appearance.   Admitted  into  evidence  were Commission \nExhibit  1 (see Ark.  Code  Ann. § 11-9-705(a)(1)  (Repl.  2012)(Commission  must \n“conduct the hearing . . . in a manner which best ascertains the rights of the \nparties”) and  Respondents’  Exhibit  1, forms,  pleadings,  and  correspondence \nrelated to this claim, totaling 15 and 11 pages, respectively. \n\nGATEWOOD – H405484 \n \n2 \n \n The record shows the following procedural history: \n Per the First Report of Injury or Illness filed on August 26, 2024, Claimant \npurportedly suffered an injury to her ankle at work on August 13, 2024, when she \nwas operating an electric motor hand truck and suffered a mishap.  According to \nthe  Form  AR-2  that  was filed August 27, 2024,  Respondents accepted  the  claim \nas compensable and paid medical plus indemnity benefits pursuant thereto. \n On  March 18,  2025,  through  counsel,  Claimant  filed  a  Form  AR-C.  \nTherein, she alleged that she injured her right leg and ankle in the aforementioned \naccident,  and  requested  the  full  range  of  initial  benefits.    In  correspondence \naccompanying the filing, Claimant’s counsel wrote:  “I am not asking for a hearing \nat this time.”  Respondents’ counsel entered her appearance on March 20, 2025; \nand in an email to the Commission on March 28, 2025, she reiterated the position \nthat her clients had taken in the Form AR-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nSeptember 23, 2025.  On that date, Respondents filed the instant motion, asking \nfor dismissal of the claim under 11 C.A.R. § 25-110(d) (formerly AWCC R. 099.13) \nand Ark. Code Ann. § 11-9-702 (Repl. 2012) because “Claimant “has not sought \nany  type  of bona  fide hearing before  the  [Arkansas]  Workers’  Compensation \nCommission over  the  last six  months.”  The  file  was  assigned  to  me  on \nSeptember 25, 2025; and on September 26, 2025, my office wrote Claimant and \nher  counsel,  asking  for  a  response  to  the  motion within  20  days.   Her  counsel \n\nGATEWOOD – H405484 \n \n3 \n \nresponded via email that same day:  “Claimant will not oppose dismissal provided \nit is without prejudice.  We will ask to be excused from any hearing on the motion.”    \nBased on this, a Notice of Hearing was issued that same day, setting the hearing \nfor  October  3,  2025,  at  10:30  a.m.  at  the  Craighead  County Courthouse  in \nJonesboro.  On October 1, 2025, I emailed the parties, asking if anyone objected \nto my delaying the beginning of the hearing until just before noon that same day.  \nBoth  sides  indicated no  objection,  with  Claimant’s  counsel  repeating  that  they \nwould not be coming to the hearing. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the foregoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n\nGATEWOOD – H405484 \n \n4 \n \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under 11 C.A.R. § 25-110(d). \n4. The Motion  to Dismiss  is hereby  granted;  this claim for  additional \nbenefits is hereby dismissed without prejudice under 11 C.A.R. § 25-\n110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \n\nGATEWOOD – H405484 \n \n5 \n \nin  pursuit  of it (including  appearing in  person  and/or  through  counsel at  the \nOctober  3,  2025, hearing  to  argue  against its dismissal)  since the filing  of  her \nForm AR-C on March 18, 2025.  Thus, the evidence preponderates that dismissal \nis  warranted  under § 25-110(d).  Because  of  this  finding,  the  argument  made \nunder Ark. Code Ann. § 11-9-702 (Repl. 2012) will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \nthe  foregoing,  I agree  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7415,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. 405484 BRIANNA GATEWOOD, EMPLOYEE CLAIMANT FAMILY DOLLAR STORES, INC., EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY CORP., CARRIER RESPONDENT OPINION FILED OCTOBER 3, 2025 Hearing before Administrative Law Judge O. Milton Fine II on October 3, 2025, in Jonesb...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:35:13.277Z"},{"id":"alj-H406506-2025-10-02","awccNumber":"H406506","decisionDate":"2025-10-02","decisionYear":2025,"opinionType":"alj","claimantName":"Miranda Delgado","employerName":"J T Handyman & Lawncare, LLC","title":"DELGADO-MIRANDA VS. J T HANDYMAN & LAWNCARE, LLC AWCC# H406506 October 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DELGADO_MIRANDA_ELISEO_H406506_20251002.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DELGADO_MIRANDA_ELISEO_H406506_20251002.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H406506 \n \nELISEO DELGADO-MIRANDA, EMPLOYEE CLAIMANT \n \nJ T HANDYMAN & LAWNCARE, LLC, UNINSURED EMPLOYER RESPONDENT \n \n \nOPINION FILED OCTOBER 2, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by BRIAN G. THOMAS, Attorney, Fayetteville, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On July 10, 2025, the above captioned claim came on for a hearing at Springdale, Arkansas.  \nA pre-hearing conference was conducted on November 14, 2024, and a pre-hearing order was filed \non that same date.  The matter was originally set for a hearing on January 10, 2025, but the parties \nrequested additional time to complete discovery.  The order of November 14, 2024, was not modified, \nand a copy of that pre-hearing order has been marked as Commission’s Exhibit #1 and made a part \nof the record without objection. \n There were no stipulations announced at the pre-hearing conference.  After this matter was \ntried, the parties stipulated that claimant’s average weekly wage at the time of his accident was $172.80, \nwhich yields a temporary total disability rate of $115.00 per week.     \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n           1.    Whether the Commission has jurisdiction over this claim. \n\nDelgado-Miranda-H406506 \n2 \n \n \n           2.    If the Commission has jurisdiction, did claimant suffer a compensable injury on August 8, \n2024. \n           3.    If compensable, whether claimant is entitled to temporary total disability benefits, medical \nbenefits, and attorney’s fees. \n           4.    If compensable, whether respondent is entitled to any credits or offset for payment made \nby a third party.  \n All other issues are reserved by the parties. \n The claimant contends that “He is entitled to medical treatment for his neck, back and left \nshoulder, and to temporary total disability benefits form August 9, 2024, to a date yet to be determined.  \nClaimant reserves all other issues.” \n The respondents contend that “Claimant was not an employee of respondent.  Even if he was \nan employee, he was not injured during the course of his employment.” \n           From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulation agreed to by the parties after the hearing of this is hereby accepted as fact. \n 2.   The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n 3.   Claimant has met his burden of proving that he suffered a compensable injury to his neck, \nupper back and left shoulder, and is therefore entitled to medical benefits for those injuries.   \n 4.    Claimant has met his burden of proving he is entitled to temporary total disability from \nAugust 9, 2024, to a date to be determined. \n\nDelgado-Miranda-H406506 \n3 \n \n \nHEARING TESTIMONY \n \nClaimant was the only witness to testify at the hearing.  On August 8, 2024, claimant was in a \nmotor vehicle accident while driving J T Handyman’s truck.\n1\n Claimant testified he was returning from \na  job  site  to  Mr. Taverez’s home,  where  he  had  parked  his  truck  at  the  beginning  of  the  workday.  \nClaimant testified that he had worked on and off for Mr. Tavarez for about four years, doing tasks \nlike home remodeling, erecting fences and constructing decks.  Mr. Tavarez would contact claimant \nto  tell  him if  he  had  work  for  him  to  do.  Some  weeks  claimant  worked  two  or  three  days  a  week, \nothers would be an entire week and then there were weeks that he did not work at all.  Before 2023, \nclaimant worked for another individual on days he was not working for J T Handyman.\n2\n Claimant said \nhe was not licensed in carpentry or plumbing.  On the date of the accident, claimant had been working \nwith Mr. Tavarez and an unnamed woman.  Mr. Tavarez had two vehicles at the job site and claimant \nwas driving the one that was involved in the accident. \nClaimant testified that he was sometimes left to work alone on a job Mr. Tavarez had assigned \nhim. He was to contact Mr. Tavarez to let him know that he had completed the task.  Claimant said \nhe was paid by the hour by J T Handyman, but did not recall if it was $15.00 or $16.00 per hour. \nClaimant  testified  that  he  waited  a  couple  of  days  before  going  to  the  doctor  and  was \nexperiencing pain in his left shoulder, his head, and on his upper spine.  Claimant said that the doctor \ngave him pills for the pain in his head and for the pain in his body so that he could sleep.  He did \nphysical  therapy  and  was  eventually  referred  by  his  doctor  at  Community  Clinic  to  an  orthopedic \nspecialist where he had surgery on his left shoulder.   Claimant was wearing a sling at the time of the \n \n1\n The accident report lists “Flor Tavarez” as the owner of the vehicle.  It was referred to in the testimony as “Juan’s \ntruck.  For this opinion, a reference to Juan, Mr. Tavarez or J T Handyman is a reference to respondent.     \n2\n There was only one 1099 for claimant in each of the tax records provided, which indicates to me that  the second \nemployer did not keep tax records, nor did claimant report this income. \n\nDelgado-Miranda-H406506 \n4 \n \n \nhearing; the surgery took place on June 25, 2025, and he had not yet begun physical therapy.  Claimant \ntestified prior to surgery he couldn’t lift anything with his left shoulder, and he had been unable to do \nso since the time of the accident.  Claimant said he had a pain in his upper back which increased when \nhe bent down or tried to walk fast but was eased by using ice on it.  Claimant said that he would have \nnot been able to work at his employment due to the shoulder injury because he had to lift more than \nfive pounds in the course of his duties.  He explained that part of his duties included mixing cement \nand pouring it on poles used for fences.  He would have to lift the poles and the wood that used while \nperforming the work. \nOn cross-examination, claimant was asked about some entries in the medical records that are \ndifferent  from  his  testimony.    Because  the  records  were  in  English,  he  did  not  know  what  was \ncontained therein and had no explanation as to why his shoulder injury was not mentioned in his first \nrecord where he complained of back pain, left thigh pain, and eye discomfort.  He also did not know \nwhy the records said that he had an injury to his right shoulder when it was his left shoulder that was \ninjured in the accident.  Claimant testified that he had two MRIs, one on his spine and a second on \nhis left shoulder.  Claimant did not know why the records would say that his pain started in September \n2024.    Claimant  disagreed  that  the  January  2025  record  was  the  first  time  he  had  mentioned  left \nshoulder pain, but did not know why the medical records did not contain what he told them. \nClaimant testified that he was able to take trips while he was working for J T Handyman but \ndid so after telling Mr. Tavarez that he was going to be leaving the area.  Claimant did not know what \nMr. Tavarez had put on his checks as far as the memo line was concerned but said he was paid based \nupon how many hours he worked.  Claimant said that he did not need to be trained how to do the \nwork when he was on a job site.   \nOn  redirect-examination,  claimant  said  he  knew  how  to  do  tasks  like  cleaning  the  wall  for \n\nDelgado-Miranda-H406506 \n5 \n \n \npainting  and  dragging  wood  out  of  a  house,  but  each  day  he  was  given  directions  as  to  what  Mr. \nTavarez wanted him to do.  Claimant said that Mr. Tavarez kept track of his hours in a notebook, and \nclaimant had nothing to do with how the checks were made out.  He did not understand the purpose \nof a memo on a check, and he did not need that information for his taxes. \nWhen claimant wanted to make a trip to Mexico, he would tell Mr. Tavarez and was allowed \nto go.  After the accident, claimant spoke with Mr. Tavarez and was told that his medical treatment \nwas going to be covered.  When that didn’t happen, claimant sought counsel and through his attorney, \nfiled an AR-C form in which he listed his injuries, including his left shoulder.  Claimant said his physical \ntherapy was done on his left shoulder and he had no issues with his right shoulder. \nOn recross-examination, claimant explained that the day of the accident, he had been cleaning \nthe walls that were being painted.  That included removing nails with a crowbar.  The supplies for that \njob were in Mr. Tavarez’s truck.  Claimant said that he told Mr. Tavarez that he would call for work \nwhen he was okay to do so.  However, he had not called because he was not capable of working. \nUpon questioning by the Court, claimant said he did not have a contractor’s license and could \nnot work in the cities that required such.  Claimant clarified that he was hit on the driver’s side of the \nvehicle.  He also explained that if a job was in Springdale, he would use less gas if he went straight to \nthe job site, but if the job was in Fayetteville, he would normally go to Mr. Tavarez’s house first. \nLIST OF EXHIBITS \n \nIn  addition  to  the Prehearing Order  discussed above,  the exhibits admitted  into  evidence  in \nthis case were Claimant's Exhibit 1, a compilation of his medical records, consisting of one index page \nand 50 numbered  pages  thereafter;  Claimant's Exhibit 2,  non-medical  records,  consisting  of  one \nindex page and 34 numbered pages thereafter; Respondents' Exhibits 1-3A-C, 4,6 and 7, which were \nunnumbered and submitted without an index. Respondent’s Exhibit 5, an affidavit from a person not \n\nDelgado-Miranda-H406506 \n6 \n \n \ncalled as a witness, was proffered but was not received into evidence and was not considered in this \nopinion. \nREVIEW OF THE MEDICAL EXHIBITS \n \n Claimant began treatment at the Community Clinic in Springdale under the care of Dr. Claire \nServy.  These records show a course of conservative treatment including x-rays, medication, physical \ntherapy and an injection of Triamcinolone Acetonide in claimant’s left shoulder. When claimant did \nnot  respond,  he  was  referred  to Dr. Mark  Powell  for  surgery  on  his  rotator  cuff.    The submitted \nmedical records did not include the discharge summary of the rotator cuff surgery that claimant had \nin June 2025, because claimant was still being treated for his left shoulder injury at the time of the \nhearing. \nREVIEW OF THE NON-MEDICAL EXHIBITS \n The  records  submitted  by  both  parties  contained financial documents,  including copies  of \nchecks, tax returns and forms.  JT Handyman provided claimant with a 1099-NEC form for the years \n2020-2024.  The motor vehicle accident report showed the truck claimant was driving was struck on \nthe driver’s side door.  \nADJUDICATION \n \n In  its  contentions,  respondent  denied  that  the  Commission  has  jurisdiction  of  this  claim, \nbecause claimant was not an employee of JT Handyman, but rather an independent contractor. A.C.A. \n11-9-707(a)  (Repl.  1996)  provides  that  in  any  proceeding  for  the  enforcement  of  a  claim  for \ncompensation, a  prima  facie  presumption  shall  exist  that  the  Workers’ Compensation  Commission \nhas  jurisdiction.  Respondent  therefore  has  the  burden  of  proof  that  claimant  was  an  independent \ncontractor rather than an employee.   \n           At the time of this accident, A.C.A §11-9-102 read in pertinent part:  \n\nDelgado-Miranda-H406506 \n7 \n \n \n(9) “Employee” means an individual, including a minor, whether lawfully or unlawfully employed \nin  the  service  of  an  employer  under  a  contract  of  hire  or  apprenticeship,  written  or  oral, \nexpressed  or  implied,  and  the  individual’s  employment  status  has  been  determined  by \nconsideration  of  the  twenty-factor  test  required  by  the  Empower  Independent  Contractors \nAct of 2019, § 11-1-201 et seq. \n \nAct 1055 of 2019 (codified as A.C.A. §11-1-204) provided at the time of this accident as follows: \n \n Determination of employment status: \n \nFor purposes of this title, an employer or agency charged with determining the \nemployment status of an individual shall use the twenty-factor test enumerated \nby the Internal Revenue Service in Rev. Rul. 87-41, 1987-1 C.B. 296, in making \nits determination...[the individual factors discussed below]\n3\n \n  \n Before it was amended in 2025, there were no appellate decisions regarding the application of \nthe 20-factor test of Ark. Code. Ann § 11-1-204, and hence no guidance as to how those factors are \nto be weighed. The nine factors that comprised the common law test as set forth in appellate decisions \n(such as Riddell Flying Serv. V. Callahan, 90 Ark. App. 388, 206 S.W.3d 284 (2005)) were not applicable \nin 2024 as to whether an individual is an employee or independent contractor.  However, I do not \nbelieve that the cases that addressed the issue were completely overruled by this legislation; the statute \nsimply  substituted  the  20-factor  test  for  the  nine  common  law  factors.  Thus,  the  approach  to \ndetermining whether someone is an employee or an independent contractor remains the same, with \nthe factors to now be considered being those in A.C.A. §11-1-204. Franklin v. Arkansas Kraft, Inc., 5 \nArk. App. 264, 635 S.W.2d 286 (1982), cited in Riddell, contained this instructive passage: \n \n“There are numerous factors which may be considered in determining whether \nan injured person is an employee or an independent contractor for purposes of \nworkers’ compensation coverage. Obviously, the relative weight to be given the \nvarious factors must be determined by the Commission. Some of the factors \nwhich might be considered, depending on the facts of a given case, are [the nine \nfactors  omitted]  These  are  not all  the  factors  which  may  conceivably  be \nconsidered in a given case, and it may not be necessary in some cases for the \n \n3\n Both A.C.A §11-9-102(9) and §11-1-204 were amended by Act 743 of 2025. \n\nDelgado-Miranda-H406506 \n8 \n \n \nCommission to consider all of these factors. Traditionally, the “right to control” \ntest has been sufficient to decide most of the cases, although many variations \nof “control” have probably been squeezed into that test.”  \n \n Thus, some factors may not apply to these facts, and of the others, all may not be of equal \nimportance.  Based  on  the  evidence  before  me,  I find  the  following  to  have  been  proven  by  a \npreponderance of the evidence \n4\n \n \n(1)A  person  for  whom  a  service  is  performed  has  the  right  to  require  compliance  with  instructions,  including \nwithout limitation when, where, and how a worker is to work; \n \nMr. Tavarez told claimant where he would be working, kept up with the time, and directed the \ntasks on the job site.  \n \n(2) A worker is required to receive training, including without limitation through: \n(A) Working with an experienced employee; \n(B) Corresponding with the person for whom a service is performed; \n(C) Attending meetings; or \n(D) Other training methods; \n \nI do not see how this is applicable as far as training is concerned, because claimant had prior \nexperience in the construction and remodeling field.  However, if Mr. Tavarez wanted a job performed \nin a certain way, he retained the control to show claimant how he wanted it done.  \n \n(3) A worker’s services are integrated into the business operation of the person for whom a service is performed and are \nprovided in a way that shows the worker’s services are subject to the direction and control of the person for whom a service \nis performed; \n \nClaimant was not told to go to a certain property and perform his tasks, as an independent \ncontractor or subcontractor would be.  Thus, claimant’s work was integrated into that of respondent.  \n \n4\n Even though he appeared at the  hearing and had the burden of proving the Commission did not have jurisdiction \nover this matter, respondent Tavarez did not testify.  Claimant presented proof on many of these points which were \nunrebutted. While  a  claimant's  testimony  is  never  viewed  as  uncontroverted,  the  Commission  need  not  reject  the \nclaimant's  testimony  if  it  finds  that  testimony  worthy  of  belief. Ringier  America  v.  Combs,  41  Ark.  App.  47,  849 \nS.W.2d 1 (1993).  I found claimant overall to be a credible witness on the issues before me.  \n\nDelgado-Miranda-H406506 \n9 \n \n \n(4) A worker’s services are required to be performed personally, indicating an interest in the methods used and the results; \n \nThere was no evidence that claimant could send a substitute when JT Handyman wanted him  \nto work.  \n \n(5) A person for whom a service is performed hires, supervises, or pays assistants; \n \nI do not see the relevance of this factor to the case at bar.  \n \n \n(6) A continuing relationship exists between a worker performing services and a person for whom a service is performed; \n \nThere  is  no  question  that  the  parties  had  a  continuing  relationship.  However,  a general \ncontractor could have a painter he used regularly, or a business might have an accountant that was a \nfrequent consultant without creating an employer-employee relationship.  This factor does not favor \neither party under these facts.  \n \n(7) A worker performing a service has hours set by the person for whom a service is performed; \n \nClaimant said he did occasionally remain at a job site after respondent left, but he called to \nreport his time to Mr. Tavarez, which would be consistent for an employee rather than an independent \ncontractor.  \n(8) A worker is required to devote substantially full time to the business of the person for whom a service is performed, \nindicating the person for whom a service is performed has control over the amount of time the worker spends working and \nby implication restricts the worker from obtaining other gainful work; \n \n In examining claimant’s tax returns from 2020 to 2024, I note that the only income claimant \nreported was from JT Handyman, and the most money he reported in any particular year was in 2023 \nin the amount of $11679.00. Assuming claimant was making $15 per hour, that would mean he worked \nonly 778 hours for the year. That is hardly full time, which would mean claimant could have worked \nfor others on days he was not with Mr. Tavarez. Whether or not he engaged in other work is irrelevant; \nI find this factor favors JT Handyman.  \n\nDelgado-Miranda-H406506 \n10 \n \n \n(9)(A) The work is performed on the premises of the person for whom a service is performed, or the person for whom a \nservice is performed has control over where the work takes place. \n(B) A person for whom a service is performed has control over where the work takes place if the person has the right to: \n(i) Compel the worker to travel a designated route; \n(ii) Compel the worker to canvass a territory within a certain time; or \n(iii) Require that the work be done at a specific place, especially if the work could be performed elsewhere; \n \nMr. Tavarez lined up the jobs and told claimant where they were working on a given day.  \n \n(10) A worker is required to perform services in the order or sequence set by the person for whom a service is performed \nor the person for whom a service is performed retains the right to set the order or sequence;   \n \nMr. Tavarez would direct claimant on what he wanted done at the job site on each day.  \n \n(11) A worker is required to submit regular oral or written reports to the person for whom a service is performed; \n \nThere were no reports required other than the hours worked, and no reason there would need \nto be such, since Tavarez was on the jobsite with claimant.  \n(12) A worker is paid by the hour, week, or month except when he or she is paid by the hour, week, or month only as \na convenient way of paying a lump sum agreed upon as the cost of a job; \n \nClaimant testified he was paid hourly.  There were no bids or invoices submitted into evidence \nthat I would expect from an independent contractor.  \n(13) A person for whom a service is performed pays the worker’s business or traveling expenses; \n \nClaimant testified that he was occasionally given gas money, but I believe the way the parties \nhandled travel was that claimant went directly to the job site if it was closer than driving first to JT \nHandyman to begin the day.   \n(14) A person for whom a service is performed provides significant tools and materials to the worker performing services;   \n \nClaimant testified that he carried a pry bar in his truck.  That is hardly a significant number of \ntools.    As  for  materials,  there  was  no testimony  that  claimant  provided  such.  An  independent \ncontractor would include the cost of materials into his bid for services.  \n(15) A worker invests in the facilities used in performing the services; \n\nDelgado-Miranda-H406506 \n11 \n \n \nThis has no application to the type of work involved in this matter.  \n(16) A worker realizes a profit or suffers a loss as a result of the services performed that is in addition to the profit or \nloss ordinarily realized by an employee; \n \nThis  section  highlights  a  major  difference  between  an  employee  and  an  independent \ncontractor.  The  latter  can  underbid  a  job,  see  raw  materials  skyrocket  in  price  after  a  bid  is  made, \nsuffer losses from theft, etc. all of which would cause a loss. The way claimant was paid in this case \nput no risk of loss on him.  At the same time, the only way for claimant to increase the money he \nreceived was to work more hours.   \n(17) A worker performs more than de minimis services for more than one (1) person or firm at the same time, unless \nthe persons or firms are part of the same service arrangement; \n \nAs  I  said  above, I  suspect  the  claimant  was  working  more  frequently  than  his  tax  records \nindicate.  However, speculation and conjecture, even if plausible, cannot take the place of proof. Ark. \nDep’t of Corrections v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991), and I therefore cannot \nfind this supports respondent’s position.  \n(18) A worker makes his or her services available to the general public on a regular and consistent basis; \nAn independent contractor looking for remodeling work or fencing jobs would have his or \nher  information  on  social  media,  have  a  number  in  the  telephone  book,  have  business  cards  and \nletterhead,  and  other  indicia  of  being  in  business  for  the  general  public  to  contact  to  engage  those \nservices. Tavarez presented no evidence that the general public would know to contact claimant for \nhome repair services.  \n(19) A person for whom a service is performed retains the right to discharge the worker; and \n(20) A worker has the right to terminate the relationship with the person for whom a service is performed at any time \nhe or she wishes without incurring liability. \n \n These  final  two  will  be  considered  together.  The  right  to  discharge  a  worker  is  a  factor \nindicating that the worker is an employee and the person possessing the right is an employer. Likewise, \n\nDelgado-Miranda-H406506 \n12 \n \n \nif  a  worker  has  the  right  to  end  his  or  her  relationship  with  the  person  for whom  the services  are \nperformed whenever he or she wishes without incurring liability, that factor indicates an employer-\nemployee relationship.  Mr. Tavarez was free to end the relationship with claimant at any time, and \nclaimant could likewise determine he no longer wanted to work for JT Handyman.   \n          After  evaluating  all  the  factors  contained  in  Ark.  Code.  Ann  §11-1-204,  I  find  the  evidence \noverwhelmingly supports the finding that the claimant was an employee of JT Handyman on the date \nof  his  injury and  not  an  independent  contractor.  I  saw  how  the  checks  and  tax  documents  were \ndesignated by JT Handyman, but if the relationship of employer and employee exists, the designation \nor  description  of  the  relationship  by  the  parties  as  anything  other  than  employer  and  employee  is \nimmaterial.\n5\n If such a relationship exists, as I am convinced it does in this case, it is of no consequence \nthat the employee is designated as an independent contractor by the employer. Thus, respondent has \nfailed to meet his burden of proving that the Commission does not have jurisdiction because claimant \nwas an independent contractor. \nHaving determined that claimant was an employee, I now turn to respondent’s contentions in \nthe prehearing order that denied claimant was injured in the course of his employment.  At the hearing, \nhe clarified  that  he  believed the “going and coming rule” would bar this claim.  Although  I  have \ndetermined that claimant was an employee, for an accidental injury to be compensable, it must arise \nout  of  and  in  the  course  of  employment.  Ark.  Code  Ann.  §11-9-102(4)(A)(i)  (Repl.  2012).  A \ncompensable injury does not include an injury incurred at a time when employment services were not \nbeing  performed.  Ark.  Code  Ann.  §11-9-102(4)(B)(iii).  An  employee  is  performing  employment \nservices when he or she is doing something that is generally required by his or her employer. Cont’l \n \n5\n “Many employers mistakenly think as long as workers are given a W-2 or a 1099 at the end of the year, they are \nwithin the law. This is not true.” https://dws.arkansas.gov/workforce-services/employers/worker-misclassification/ \n\nDelgado-Miranda-H406506 \n13 \n \n \nConstr. Co. v. Nabors, 2015 Ark. App. 60, 454 S.W.3d 762. The test used to determine is whether the \ninjury  occurred  within  the  time  and  space  boundaries  of  the  employment  when  the  employee  was \ncarrying out the employer’s purpose or advancing the employer’s interest, either directly or indirectly. \nPifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). Moreover, whether an employee was \nperforming  employment  services  within  the  course  of  employment  depends  on  the  particular  facts \nand circumstances of each case. Centers for Youth & Families v. Wood, 2015 Ark. App. 380, 466 S.W.3d \n422. \nClaimant had driven his personal truck to the Tavarez home to begin the workday.  He had \ndriven a JT Handyman truck to the jobsite and was returning it to end his workday.  Driving the truck \nback was part of his job, and he was thus advancing his employer’s interest.  Claimant was carrying \nout the express and immediate instructions of his employer, doing something specifically required by \nhis employer at the time of the accident, and therefore his claim is not barred by the “going and \ncoming” rule, see Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d 877 (2006). \nFurther, respondent denied claimant had shown objective findings of an injury.  To prove a \ncompensable  injury,  the  claimant  must  establish  by  a  preponderance  of  the  evidence:  (1)  an  injury \narising out of and in the course of employment; (2) that the injury caused internal or external harm to \nthe  body  which  required  medical  services  or resulted  in  disability  or  death;  (3)  medical  evidence \nsupported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) establishing the injury; \nand  (4)  that  the  injury  was  caused  by  a  specific  incident  and  identifiable  by  time  and  place  of \noccurrence.   If   the   claimant   fails   to   establish   any   of   the   requirements   for   establishing   the \ncompensability of the claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. \nApp. 126, 938 S.W.2d 876 (1997). \n The first and fourth elements are clearly established, as claimant’s credible testimony identified \n\nDelgado-Miranda-H406506 \n14 \n \n \nthe motor vehicle accident of August 8, 2024, as the time and place of his injuries.  The physician that \ntreated  claimant  at  the  Community  Clinic began  a  course  of  conservative  treatment,  including \nmedication  and physical  therapy,  but initially  ordered  only  X-rays  as  a  diagnostic  tool.    Eventually, \nclaimant received an MRI of his thoracic spine on December 20, 2024, with the following impression: \n“There  are  multiple  exterior  disc  bulges at  T2-T3,  T3-T4 and T7-T8. No  canal  stenosis  identified. \nThere is a central disc protrusion at T8-T9, resulting in mild canal stenosis. The neural foramina are \npatent  at  this  level.” The  MRI  of claimant’s left shoulder\n6\n on April 11, 2025, revealed a “partial \nintrasubstance  tear  of  the  distal  supraspinatus  tendon.  Fluid  along  the  superior  margin  of  the \nsupraspinatus muscle.”  As for the neck injury, there has not yet been an MRI on claimant’s cervical \nspine, but the x-ray taken on August 12, 2024, revealed: “Straightening of the normal spine lordosis \nmay reflect muscular guarding or spasm” Claimant’s course of physical therapy included treatment for \nhis neck.  While I was not provided with any records showing the neck being treated in 2025, it was \npart of the original injury.  \n In  his  summation  after  the  testimony,  respondent  maintained  the  connection  between  the \naccident and the diagnoses months later made the connection tenuous. However, respondent is in no \nposition to complain about the length of time it took for claimant’s neck, upper back and left shoulder \nconditions to be fully diagnosed. These objective findings were delayed because JT Handyman failed \nto have the required workers’ compensation coverage for his employees, which includes prompt and \nproper  medical  care be provided  to  an  injured  worker. The  medical  records submitted contain  the \nnecessary objective findings of work-related injury sufficient for claimant to meet his burden of proof \n \n6\n Respondent pointed out that the physical therapy record of September 18, 2024, mentioned a diagnosis on claimant’s \nright shoulder.  That appears to be a coding error, as M25.511 is for the right shoulder and M25.512 is for the left \nshoulder. https://icdlist.com/icd-10/M25.11#specific-coding. The  portion  of  the  record  that would  have  been \ncomposed  by  the  therapist  did  not  specify which  shoulder  she  treated.  I  did  not  see  that Dr.  Servy specifically \nmentioned which shoulder she was treating until her January 8, 2025, office note.     \n\nDelgado-Miranda-H406506 \n15 \n \n \non this issue.  \n Claimant requested temporary total disability payments from August 9, 2024, to a date to be \ndetermined.  He did not specify if a specific injury or the combination of injuries caused him to be \nunable to work.  However, injuries to the neck, left shoulder and thoracic spine are all unscheduled \ninjuries; in  order  to  be  entitled  to  temporary  total  disability  benefits  for  an  unscheduled  injury,  the \nclaimant must prove by a preponderance of the evidence that he remains within his healing period \nand that he suffers a total incapacity to earn wages. Arkansas State Highway & Transportation Department \nv. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).  Because this matter was not handled by a claims \nadjuster as a work-related injury, claimant’s doctor was not asked to express an opinion on claimant’s \nability to work or to provide restrictions for him until April 18, 2025, at which time she restricted his \nability to lift, push or pull more than five pounds for the injury to his left shoulder.  Since I believe \nthe motor vehicle accident was the cause of the torn rotator cuff, the failure of the treating physician \nto specifically restrict claimant’s use of his shoulder before April 18, 2025, does not mean he had no \nsuch limitations before that date.  He clearly remained in his healing period at the time of the hearing.  \nIn Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002), the Arkansas Court of Appeals wrote: \n\"If, during the period while the body is healing, the employee is unable to perform remunerative labor \nwith  reasonable  consistency  and  without  pain  and  discomfort,  his  temporary  disability  is  deemed \ntotal.\" Given the nature of claimant’s work, I do not believe he could have performed with one arm \nany type of labor from August 9, 2024, through the date of the hearing, and therefore the left shoulder \ninjury alone would be sufficient for claimant to meet his burden of proof as to his claim for temporary \ntotal disability benefits from August 9, 2024, to a date to be determined.      \n \n \n\nDelgado-Miranda-H406506 \n16 \n \n \nORDER \n \nRespondent is directed to pay benefits in accordance with the findings of fact set forth herein \nthis Opinion. \n \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \n \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's   \nfee on the indemnity benefits awarded herein. This fee is to be paid one half by respondent and one \nhalf by the claimant. \n \nIf not already paid, respondent shall pay the court reporter's fee for preparation of the record \nin this case. \n \nAll issues not addressed herein are expressly reserved under the Act. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":33947,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H406506 ELISEO DELGADO-MIRANDA, EMPLOYEE CLAIMANT J T HANDYMAN & LAWNCARE, LLC, UNINSURED EMPLOYER RESPONDENT OPINION FILED OCTOBER 2, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas. Claimant represent...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["neck","back","shoulder","rotator cuff","thoracic","cervical"],"fetchedAt":"2026-05-19T22:35:09.143Z"},{"id":"alj-H106007-2025-09-30","awccNumber":"H106007","decisionDate":"2025-09-30","decisionYear":2025,"opinionType":"alj","claimantName":"Evelyn Bruce","employerName":"Area Agency On Aging Nw Ark","title":"BRUCE VS. AREA AGENCY ON AGING NW ARK. AWCC# H106007 September 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRUCE_EVELYN_H106007_20250930.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRUCE_EVELYN_H106007_20250930.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H106007 \n \nEVELYN BRUCE, Employee CLAIMANT \n \nAREA AGENCY ON AGING NW ARK., Employer RESPONDENT \n  \nRISK MANAGEMENT RESOURCES, Carrier RESPONDENT \n \n OPINION/ORDER FILED SEPTEMBER 30, 2025  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Harrison, Boone \nCounty, Arkansas. \n \nClaimant represented  by FREDERICK  S.  SPENCER,  Attorney, Mountain Home,  Arkansas; \nalthough not present at hearing. \n \nRespondent represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn July  8,  2022, Rick  Spencer,  claimant’s  attorney,  filed a  Form AR-C  requesting \nvarious compensation benefits in which she alleged injuries to her right shoulder, right knee, and \nneck; however, no hearing was requested. No further action was taken in this claim. \nOn June 10, 2025, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed for lack of prosecution. A hearing was scheduled for August 28, 2025. Notice of that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on July  17,  2025. \nUnited States Postal Department records indicate that claimant received and signed for the notice \non July 22, 2025. \nMr. Spencer indicated by email dated July 17, 2025, that he would waive his appearance \nat  the  hearing  and  further  indicated  that he had  no  objection  to  the  Motion  to  Dismiss \n“WITHOUT prejudice.”    \n\nBruce – H106007 \n2 \n \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution.  After my review of \nthe respondent’s Motion to Dismiss, Mr. Spencer’s response thereto that he had no objection to \nthe Motion to Dismiss without prejudice, and the claimant’s failure to appear at the scheduled \nhearing,  as  well  as  all  other  matters  properly  before  the  Commission,  I  find  that  claimant  has \nfailed to prosecute this claim. Therefore, this claim is dismissed without prejudice.   \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2309,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H106007 EVELYN BRUCE, Employee CLAIMANT AREA AGENCY ON AGING NW ARK., Employer RESPONDENT RISK MANAGEMENT RESOURCES, Carrier RESPONDENT OPINION/ORDER FILED SEPTEMBER 30, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Harrison, Boone County, ...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":["shoulder","knee","neck"],"fetchedAt":"2026-05-19T22:36:49.365Z"},{"id":"alj-H307394-2025-09-30","awccNumber":"H307394","decisionDate":"2025-09-30","decisionYear":2025,"opinionType":"alj","claimantName":"Patrice Gilmer","employerName":"Wal-Mart Associates, Inc","title":"GILMER VS. WAL-MART ASSOCIATES, INC. AWCC# H307394 September 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GILMER_PATRICE_H307394_20250930.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GILMER_PATRICE_H307394_20250930.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM No H307394 \n \nPATRICE GILMER, EMPLOYEE       CLAIMANT \n \nWAL-MART ASSOCIATES, INC.,  \nSELF- INSURED EMPLOYER                  RESPONDENT \n \nWAL-MART CLAIMS SERVICES, \nTHIRD-PARTY ADM’R                            RESPONDENT \n \n \nOPINION & ORDER FILED 30 SEPTEMBER 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 3 July 2025 in Pine Bluff, Arkansas. \n \nThe claimant was represented by the Gary Davis Law Firm, Mr. Gary Davis. \n \nThe respondents were represented by Newkirk & Jones, Mr. Rick Behring. \n \nSTATEMENT OF THE CASE \n \n A Prehearing Order was filed on 11 March 2025 and admitted to the hearing record \nwithout objection as Commission’s Exhibit No 1. Consistent with that Order, the parties \nagreed to the following: \nSTIPULATIONS \n \n1. The Commission has jurisdiction over this claim. \n \n2. The self-insured employer/employee/third-party administrator relationship \nexisted at all times relevant to these claims. \n \n3. The respondents initially accepted this claim but have since controverted this \nclaim for any additional benefits.\n1\n \n \n4. The claimant’s average weekly wage of $559.21 would entitle her to weekly \nbenefits in the amounts of $373 for temporary total disability (TTD) and $280 \nfor permanent partial disability (PPD). \n \n \n \n1\n As noted in the respondents’ contentions below, the respondents have denied this claim in \nits entirety after providing some initial benefits at the outset claim. \n\nP. GILMER- H307394 \n2 \n \nISSUES \n \n1. Whether the claimant sustained compensable injuries to her back and right \nlower extremity by specific incident on 27 October 2023.\n2\n \n \n2. Whether the claimant is entitled to TTD benefits for a period to be \ndetermined. \n \n3. Whether the claimant is entitled to medical benefits. \n \n4. Whether the claimant is entitled to an attorney’s fee. \n \nAll other issues have been reserved. \n \nCONTENTIONS \n \nThe Prehearing Order incorporated the following contentions from the parties’ \nrespective prehearing questionnaire responses: \nClaimant \nThe claimant contends that she sustained compensable injuries to her \nright knee on 27 October 2023. She was seen by Dr. Lawrence O’Malley, \nwith the UAMS Orthopedic Clinic, who recommended surgery. \nRespondents have refused to authorize the same. Claimant contends \nentitlement to TTD benefits and medical treatment (including but not \nlimited to recommended surgery). These matters are controverted for \npurposes of attorney’s fees.  \n \n Respondent \n \nThe respondents contend that this claim has been denied and \ncontroverted in its entirety. The claimant did not sustain a compensable \nback injury while employed by Respondent employer. The claimant did \nnot sustain a compensable right lower extremity (knee) injury while \nemployed by the respondent employer. The claimant cannot meet her \nburden of proving the alleged back and right lower extremity conditions \nresulted from a specific incident on or about 27 October 2023. The \nclaimant’s condition preexisted the alleged incident and/or arose from \nan idiopathic event and not the result of a specific incident. The \nclaimant voluntarily abandoned her position with the respondent. The \nclaimant is not entitled to any benefits, as the claimant’s need for \nmedical treatment, if any, is unrelated to her employment for the \nrespondent. Instead, the claimant’s physical problems and need for \n \n2\n At the beginning of the hearing, the parties agreed that the alleged compensable injuries \nwere by specific incident on 27 October 2023.  \n\nP. GILMER- H307394 \n3 \n \ntreatment (if any) are related to a pre-existing and/or degenerative \ncondition and not the result of her work for the respondent-employer. In \nthe alternative, if it is determined the claimant sustained a \ncompensable injury, the respondent initially paid for medical treatment \nand temporary disability benefits through 12 August 2024. After \ninvestigating the claim, the respondent then controverted this claim in \nits entirety. In the alternative, if it is determined the claimant \nsustained a compensable injury and is entitled to any benefits, the \nrespondent hereby requests a setoff for all benefits paid by the \nclaimant’s group health carrier, all short-term disability benefits \nreceived by the claimant and all unemployment benefits received by the \nclaimant.  \n \nFINDING OF FACTS AND CONCLUSIONS OF LAW \n \n Having reviewed the record as a whole, including the evidence summarized \nbelow, and having heard testimony from the witnesses, observing their demeanor, I make \nthe following findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over these claims. \n \n2. The stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant failed to prove by a preponderance of the evidence that she \nsuffered a compensable injury by specific incident to her right lower \nextremity. \n \n4. The claimant failed to prove by a preponderance of the evidence that she \nsuffered a compensable injury by specific incident to her back. \n \n5. Because the claimant failed to prove a compensable injury, the remaining \nissues are moot and will not be addressed in this Opinion. \n \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \n\nP. GILMER- H307394 \n4 \n \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \nThe claimant was the only witness to testify. The record consists of the hearing \ntranscript and the following exhibits: Commission’s Exhibit No 1 (the 11 March 2025 \nPrehearing Order); Claimant’s Exhibit No 1 (two index pages and 102 pages of medical \nrecord); Respondents’ Exhibit No 1 (one index page and seven pages of medical records); \nRespondents’ Exhibit No 2 (one index page and four pages of non-medical records); and \nRespondents' Exhibit No 3 (a disc containing security camera footage of the claimant’s work \narea on the day of her alleged injuries). \nHearing Testimony \n Claimant Patrice Gilmer \n The claimant is 54 years old with some college and vocational training. She began \nworking for the respondent-employer Walmart in the Spring of 2023. On 27 October 2023, \nthe time relevant to this claim, she was working as an attendant at the self-checkout area \nof the Walmart in Stuttgart, Arkansas. The claimant testified that her job duties generally \nincluded providing assistance to customers as they made purchases, helping with the \nregisters, moving shopping baskets, and collecting return items. \n According to the claimant’s testimony, she “was working and when all the customers \ngot down quiet, they left—it was just me and another co-worker, and I was, you know, \nfinishing up, and I went to go get a basket—I was going out the outside, the entrance to go \n\nP. GILMER- H307394 \n5 \n \nget a basket, and I was walking, halfway through walking to go get a basket, I heard my \nknee and my back pop.” [TR at 17.] She went on to explain that she leaned on an empty \nshopping cart for support before using an electric scooter to leave her work area and shop \nfor a knee brace. She then returned to her work area, where she sat on the scooter before a \nsupervisor told her she could leave. \n The claimant left work and drove to the Forrest City Medical Center, where she was \nseen in the emergency department. Then, on 2 November 2023, she was seen at an urgent \ncare clinic in Wynne, Arkansas, and by Dr. James Meredith at his clinic in Forrest City, \nArkansas. Eventually, the claimant was referred to physical therapy. She continued \nphysical therapy for some time until an MRI scan was ordered for her right knee. That scan \nwas reviewed by Dr. Lawrence O’Malley, who recommended surgery. The respondents \ndenied the claimant’s request for knee surgery and controverted her claim in its entirety \nfrom that point forward. Describing the difficulty she experiences with her knee, the \nclaimant testified:  \nIt’s like my knee. It’s like my leg. I have a lot of cramps, behind this, all the \ntime, and I have—I have pain—even when I’m driving, I have pain, all down \nto my toes. It’s like my toe—my feet kind of went over a little bit. ‘Cause I got \nsome stuff from studying. They said if you don’t get them, you will need to \ntell, it can cause... I majored in nursing. \n \n[TR at 34.] \n The claimant stated that she has not worked since her alleged injury on 27 October \n2023. When asked about her alleged back injury, the claimant stated: \nYeah, I still have problems. I even visit my—don’t nobody want to mess with \nme, ‘cause they say it’s a workers’ comp case. I’m using my primary care, you \nknow, two of them, ‘cause they don’t—this is a workers’ comp case. So... I still \nhave pain on this right side. I don’t know where—but like I said, I had a pop. \n \n[TR at 36-37.] \n\nP. GILMER- H307394 \n6 \n \n On cross-examination, the claimant reluctantly acknowledged that she had seen Dr. \nMeredith and complained of right knee swelling in April of 2023. \nQ:  ... Does that say, “Pain in the right knee”? Did I read that correctly? \nA:  Yes, it’s probably ‘cause I was standing. \nQ:  Did I read that correctly? \nA:  Yes. Yeah. \nQ:  All right. All right. And you were having—sounds like you were having \npain in your right knee, because you were doing some standing, huh? \nA:  Well, at my sister’s house, helping her. \nQ:  Is that a yes, ma’am? \nA:  That’s right, yes. \nQ:  All right. \nA:  Uh-huh. \nQ:  And that was before you worked at Walmart, correct? \nA:  Yes, ‘cause I was helping my sister. Uh-huh. \nQ:  And it also says on page 2 here that you had chronic stiffness in your \nknees, is that correct? \nA:  That’s what they said. I still have it. I mean, I didn’t have it as bad. I have \nit real bad now. \n \n[TR at 42-43.] She also acknowledged some popping in her knees prior to 27 October 2023. \n The claimant confirmed in her testimony that the work area floor was free of any \nhazard or obstruction when she suddenly felt a “pop” in her back and in her knee. She did \nnot slip, trip, or stumble. Nor did she fall. \nA:  Sir, I was walking when it happened. All my customers was finished. \nQ:  Ms. Gilmer, you were simply walking at the time? \nA:  Correct. \n \n[TR at 52.] She also acknowledged that immediately following the incident and before \nleaving work that day, she did not ask for medical treatment. Still, she drove herself from \nStuttgart to the emergency department in Forrest City. The medical records from that visit \nindicate no mechanism of injury associated with her complaints. \n The claimant reluctantly agreed that she was offered and refused light duty work \nwithin her physician-ordered restrictions sometime after the incident. \nQ:  All right. Isn’t it true that Walmart, then, offered you work within those \nwork restrictions, the desk-duty only? \n\nP. GILMER- H307394 \n7 \n \nA:  Yes. They said—I think, they said desk duty, but I know they don’t have \ndesk duty there. \nQ:  Okay. Is that a yes. \nA:  Yes, that’s what they said. \nQ:  All right. And you decided you didn’t want to do that, is that correct? And \nyou refused the light duty assignment they had given you? \nA:  I wouldn’t say—necessarily, call it refused. It was a reason why. \nQ:  They offered it to you, correct? \nA:  Yes. \nQ:  And you told them you didn’t want to do it, correct? \nA:  I wasn’t trying to get out of work, sir. \n \n[TR at 60-61.] She confirmed, too, that she has not sought any work since 27 October 2023. \n Respondents’ Witness Mr. Aaron Joseph Mertz \n Mr. Mertz testified that he works in human resources at the Walmart in Stuttgart \nand that he was familiar with the claimant and her case. He reviewed the security footage \nof the claimant’s work area and confirmed that it accurately depicted how she walked and \nmoved about prior to the incident related to this claim. Mr. Mertz confirmed that the \nclaimant was offered light duty work and that she refused the same. \nMedical Evidence \n The record from the claimant’s 27 October 2023 emergency department visit \nincludes: \nPRESENTATION \nPresenting complaint: Patient states: heard popping in leg near knee and hip \nwhile walking, denies falling. A primary survey was performed and any \nissues related to ABC’s were addressed and/or cleared. Mechanism of Injury: \nNo Mechanism of Injury. \n... \nTRIAGE ASSESSMENT \nPain: Complains of pain in right knee and right shin. Quality of pain is \ndescribed as aching. Pain currently is 10. Level that is acceptable is 0 out of \n10 on a pain scale. \nInjury Description: no injury noted. \n... \nHISTORICAL \nPMHx: None \n... \nDIAGNOSIS \nSprain of unspecified site of right knee, initial encounter \n\nP. GILMER- H307394 \n8 \n \n... \nHPI \nThe patient presents with pain, that is acute. The complaints affect the right \nknee. Context: The problem was sustained at work, resulted from twisting \nthe extremity. The patient is not able to bear weight. Onset: The \nsymptom(s)/episode began/occurred 2 day(s) ago... Patient states she was \nwalking from 1 register to the other felt a popping in her right knee... \n \n[Cl. Ex. No 1.] The claimant was discharged home with crutches and directed to follow-up \nwith Dr. James Meredith (her primary care physician (PCP)) as needed. \n On 2 November 2023, the claimant presented to an urgent care clinic in Wynne, \nArkansas. The notes from that visit include: \nHPI \nPain, Knee [Pt states she was walking at work on Friday 10/27 and twisted \nher right knee and heard a pop. She went to the ER directly after the fall and \nhad an Xray which pt reports was normal. \n \nPMH \nPast Medical History is unremarkable \n... \nASSESSMENT/PLAN \nSprain of unspecified site of right knee, initial encounter- Uncomplicated \n \n She was told to continue taking medication for pain and swelling as needed and \nreferred for physical therapy. The clinic provided a work note that anticipated the claimant \nreturning to work the following week. \n Also on 2 November 2023, the claimant presented to her PCP Dr. James Meredith’s \nclinic. The notes from that visit include: \nREASON FOR APPOINTMENT \n1. ER Follow Up- Torn ligament. \n2. Hurt R knee on 10/27/23; went to FCMC ER; using crutches and has knee \nbrace on. \n3. X-rays in ER were negative. \n \nASSESSMENT \n1. Sprain of unspecified site of right knee, subsequent encounter \n2. BMI 31-31.9, adult \n3. Dietary counseling and surveillance \n \nFOLLOW UP \n\nP. GILMER- H307394 \n9 \n \nprn \n \nPROCEDURE CODES \nG8417 BMI >= 30 Calculate w/ Follow up \n \n The following week, on 9 November 2023, the claimant returned to the urgent care \nclinic in Wynne. \nHPI \nf/u R knee pain- states that she is taking Naprosyn for the pain- also got a \nknee brace and wants to know if she can get a different one that Medicaid \nwill cover. \n... \nASSESSMENT/PLAN \nAwaiting approval from Work Comp for PT. Will put PT off 1 more week for \nPT to be approved and evaluate PT. \nRX written and given to pt for knee immobilizer. \nInstructed Pt to use the brace but ensure that she is stretching her right leg \nas well. Tylenol/Motrin for pain. \n \n A work note is indicated in the record, but a copy of the note was not provided for \nthat visit. \n The claimant returned to the urgent care clinic again on 16 November 2023. She \nreported that she was waiting for payer approval for a knee brace and physical therapy. \nAnother work note was provided, keeping the claimant off work until 30 November 2023. \n The records indicate that the claimant began physical therapy on 27 November \n2023. Portions of the notes from that visit include: \nHPI \nMrs. Gilmer is a 53 year old female who presented today with diagnosis of R \nknee sprain. Pt reported that she had [an] incident at work where her knee \nand back popped on Oct. 8 2023. Pt reported that she did not fall but had to \nhold on to buggy. Pt reported that she had X-rays that showed soft tissue \ndamage per her report. Pt stated that she has been using a knee brace and \ncrutches since incident and is currently off work. Pt stated that she has pain \nwhen she puts all her weight on her knee. \n... \nMEDICAL HISTORY REVIEW \nThe patient has a history of present problem with a history of 1-2 personal \nfactors and/or comorbidities that impact the plan of care. \n... \nASSESSMENT/DIAGNOSIS \n\nP. GILMER- H307394 \n10 \n \n... Pt has increased pain with WB’ing but no laxity was determined with \nligament testing today. Pt pain is global in knee but seems to be more \nisolated at times to lateral knee. Pt ROM is doing well and swelling has \nimproved per patient report. \n \n The claimant was to return for physical therapy two times per week for the next four \nweeks. \n The claimant returned to the urgent care clinic again on 30 November 2023, where \nshe complained of continued pain, not having the correct knee brace, and “wants to talk \nabout last day of work due to not being paid for those days.” She was told to continue with \nphysical therapy and wearing the brace she was wearing. A work note with some \nrestrictions was indicated in the record from that visit, but the claimant did not provide a \ncopy of that work note. \n On 14 December 2023, the claimant presented to the urgent care clinic again and \ncomplained of increased pain in her knee. She was referred for an MRI; and a work note \nwas indicated again. She returned again the following week (21 December 2023) and \nrequested another work note. The clinic provided a note excusing her from work until 4 \nJanuary 2023. She was to follow up at the clinic in another two weeks. Then, on 5 January \n2024, the claimant returned to obtain another work note. This note excused her from work \n“TBD after MRI.” \n The claimant continued to attend physical therapy for the next couple of months. On \n27 February 2024, the therapy note included: \nMrs. Gilmer arrived with slight limp, ambulating independently. Patient \nstated she has self-diagnosed herself with IT Band Syndrome and knows that \nis the root of her issues. Patient has MRI appointment this Friday. Patient \nquestioned PTA entire treatment for PTA to diagnose her with “torn \nligaments.” PTA and PT respectfully answered patient that we only treat \nwhat was written [on the] prescription from MD and cannot diagnose. Patient \nwas able to transfer from stationary bike with no difficulty, standing twisting \nto turn and to walk with no complaints. Patient was able to internal rotated \nhip in supine position with knee flexed over 90 degrees to take off shoe with \nno complaints... \n\nP. GILMER- H307394 \n11 \n \n An MRI study was performed on 1 March 2024: \nIMPRESSION \n1. PHMM root moderate macerated tear. \n2. Moderate patellofemoral and moderate to severe medial compartments \nosteoarthritis. \n3. Large joint effusion. \n \n The claimant presented back to the urgent care clinic on 5 April 2024, where she \nwas diagnosed with a medial meniscus tear. She was provided with a note for her return to \nwork on 19 April 2024.  \n On 3 June 2024, the claimant saw Dr. Lawrence O’Malley, an orthopedic surgeon, \nbut she did not have the disc from her MRI scan with her for his review that day. She \nreturned to Dr. O’Malley’s office on 5 August 2024 with the disc. The images were reviewed, \nand the claimant indicated that she wished to undergo arthroscopic surgery to repair the \nmeniscal tear.  \n The claimant returned to Dr. Meredith’s office on 14 August 2024 with a complaint \nof lumbar pain. “Explained that her low back pain may be coming from walking different \ndue to her knee pain. Will x-ray if it continues....” She complained that her workers’ \ncompensation claim had been denied as a pre-existing problem and requested a note for \nmore time off work. According to the note from that visit, the claimant refused to weigh, so \nher previous weight was indicated.  \n The claimant presented to Dr. Meredith’s office again on 28 August 2024, where she \ncomplained of ongoing knee and back pain and again requested a note taking her off work. \n“She still has questions about being in menopause and if that can be causing any of her \njoint issues. I have done an FSH [follicle-stimulating hormone test] in the past and she is \nmenopausal. I do not think menopause is causing any of her issues. Lumbar and thoracic X-\nrays were ordered, and she was noted as being prediabetic with elevated blood sugar.  \n\nP. GILMER- H307394 \n12 \n \n She returned to Dr. Meredith’s office on 2 October 2024, where she complained about \nher knee pain and about the healing of a hand surgery not related to her workers’ \ncompensation claim. In subsequent visits, the claimant continued to make complaints about \nher knee and other conditions.  \n The respondents provided a note from the claimant’s 20 April 2023 visit (predating \nthe start of her employment) with Dr. Meredith. That note included: \nASSESSMENTS \nPain in right knee \nPain in left knee \nPain in right shoulder \nPain in left shoulder \nOther chronic pain \nBMI 31.0-31.9 \nDietary counseling \n \nTREATMENT \n1. Pain in right knee, IMAGING: X-ray, Right Knee, Notes: I think she would \nbenefit more from seeing an orthopedic doctor than a chiropractor. I think she \nhas osteoarthritis. She has been given Meloxicam, but does not want to take \nany medication. Will send her for x-rays at FCMC today. Referral To: Stacy \nBusby, Orthopedic Surgery, Reason: bilateral knee and shoulder pain. \n... \nHPI \nPatient presents complaining of chronic stiffness and pain in her knees and \nshoulders. Her left knee is the worst. She was seeing a chiropractor, Dr. \nScarborough, but he no longer takes her insurance. She was on BCBS, and is \nnow on Medicaid. She has been to ortho, but it was years ago. She denies all \nother complaints. \n \n[Resp. Ex. No 1] \n On 5 August 2024, Dr. O’Malley wrote a work note for the claimant returning her to \nwork in a desk-duty capacity. \nVideo Evidence \n The respondents provided a disc with security camera footage of the claimant’s work \narea around the time of her alleged injury. [Resp. Ex. No 3.] The video shows her moving \nabout the self-checkout area. According to the time stamp, the video starts at 2:46 PM. The \n\nP. GILMER- H307394 \n13 \n \nclaimant appears to walk with a noticeable limp, dragging her right leg at times. She \nregularly has a hand pressed against the small of her back and hip. \n At about 3:46 PM, she is walking in the center of the checkout area when her right \nknee appears to buckle. She takes another step and speaks with someone who she \nidentified in her testimony as a supervisor. He leaves and returns with an empty shopping \ncart for the claimant to lean against. She the leaves the video frame. \n The claimant returns to the video frame briefly around 4:17 PM riding on an electric \nshopping scooter. At 4:22 PM, she returns rides back into view on the scooter before leaving \nagain at 4:24 PM. She returns into view at 4:27 PM and talks with another employee \noverseeing the checkout area. The claimant remains seated on the scooter, but twists and \nturns in the seat as they talk. Before the video ends, she walks around the scooter for a \nmoment with a much more noticeable limp. She appears to be wearing the knee brace that \nshe discussed in her testimony. \nDISCUSSION \nI. THE CLAIMANT HAS FAILED TO PROVE BY A PREPONDERANCE OF \n THE EVIDENCE THAT SHE SUSTAINED COMPENSABLE INJURIES TO \n HER RIGHT KNEE AND BACK. \n \n The claimant alleges that she sustained compensable injuries to her back and right \nknee by specific incident on 27 October 2023 while working in the self-checkout area at the \nWalmart in Stuttgart. The respondents provided some benefits at the outset of her claim; \nbut they denied her claim and controverted it its entirety after she obtained an MRI and an \northopedic surgeon reviewed the findings of the MRI study. The respondents contend that \nthe claimant’s alleged injuries were pre-existing and/or of a degenerative nature and that \nany injury she might have sustained was idiopathic in nature. \n Under Arkansas’ Workers’ Compensation laws, a worker has the burden of proving \nby a preponderance of the evidence that she sustained a compensable injury as the result of \n\nP. GILMER- H307394 \n14 \n \na workplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). A compensable injury must be \nestablished by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-\n102(4)(D). Objective medical findings are those findings that cannot come under the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i).  \n The claimant alleges that her injuries occurred by specific incident. The claimant \nmust establish four (4) factors by a preponderance of the evidence to prove a specific \nincident injury: (1) an injury occurred that arose out of and in the course of his employment; \n(2) the injury caused internal or external harm to the body that required medical services or \nresulted in disability or death; (3) the injury is established by medical evidence supported \nby objective findings, which are those findings which cannot come under the voluntary \ncontrol of the patient; and (4) the injury was caused by a specific incident and is identifiable \nby time and place of occurrence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, \n938 S.W.2d 876 (1997). If a claimant fails to establish by a preponderance of the evidence \nany of the above elements, compensation must be denied. Id. \n An idiopathic injury is one whose cause is personal in nature, or peculiar to the \nindividual. Kuhn v. Majestic Hotel, 324 Ark. 21, 918 S.W.2d 158 (1996); Little Rock Conv. & \nVisitors Bur. v. Pack, 60 Ark. App. 82, 959 S.W.2d 415 (1997). Injuries due to an \nunexplained cause are different from those whose cause is idiopathic. ERC Contractor Yard \n& Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). An unexplained injury at work is \ngenerally a compensable one. Pack, supra. On the contrary, since an idiopathic injury is not \nrelated to one's employment, it is generally not compensable unless conditions related to \nthe employment contribute to the risk of injury or aggravate the injury. Id. \n \n \n\nP. GILMER- H307394 \n15 \n \n A. The Claimant’s Alleged Right Lower Extremity Injury \n The claimant argues that her right meniscus tear is a compensable injury. I find, \nhowever, that her alleged knee injury was idiopathic. She testified that she did not slip or \ntrip or stumble on any uneven surface or any hazard on or around the floor of her work area \non 27 October 2023. She was “simply walking” at the time that she claims she heard a pop \nin her knee. Reviewing the video, she indeed appears to be simply walking when her knee \nbuckles. While she was limping notably before that incident, she appeared to be in more \npain afterwards. \n The respondents introduced a physician’s note that showed the claimant clearly had \na prior history of knee pain, and Dr. Meredith believed at the time that she was suffering \nfrom osteoarthritis in her knees (which the MRI later confirmed). But the claimant \npresented no evidence to suggest that the conditions of her employment caused a new \ninjury or aggravated a previous injury. Instead, the video and her testimony preponderate \nin favor of finding that she did not sustain a compensable injury because her right knee \ncondition did not arise out of and in the course of her employment. Because she has failed to \nprove by a preponderance of the evidence that she suffered a compensable injury by specific \nincident to her right knee, her claim for the same must fail. \n B. The Claimant’s Alleged Back Injury \n The claimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable back injury. While she claims that she heard her back “pop” at the \nsame time as her right knee, the records show no report of a back injury until 14 August \n2024—ten months after the date of her alleged injuries.\n3\n A causal relationship may be \n \n3\n I am mindful that a physician’s note suggests that when the claimant did eventually \ncomplain of back pain, it was potentially attributed to her altered gait being associated with \nan unrepaired meniscal tear. When a claimant suffers a compensable injury, every natural \n\nP. GILMER- H307394 \n16 \n \nestablished between an employment-related incident and a subsequent physical injury \nbased on the evidence that the injury manifested itself within a reasonable period of time \nfollowing the incident, so that the injury is logically attributable to the incident, where \nthere is no other reasonable explanation for the injury. Hall v. Pittman Construction Co., \n234 Ark. 104, 357 S.W.2d 263 (1962). This, though, did not occur here. In light of the \nforegoing, to attribute her eventually reported injury to the incident on 27 October 2023 \nwould require me to engage in speculation and conjecture; and that I cannot do. See Dena \nConstruction Co. v. Herndon, 264 Ark. 791, 575S.W.2d 155 (1979). The evidence plainly \ndoes not suggest that she suffered any compensable injury to her back, as she claims, by \nspecific incident on 27 October 2023. Her claim for a compensable back injury must, \ntherefore, fail. \n Because the claimant has failed to prove by a preponderance of the evidence that she \nsustained a compensable injury, the other issues, including her claim for an attorney’s fee, \nare moot and will not be addressed in this Opinion. \nCONCLUSION \n The claimant has failed to prove that she sustained any compensable injuries. This \nclaim is therefore denied and dismissed. \n SO ORDERED. \n       ______________________________________ \n       JayO. Howe \n       Administrative Law Judge \n \nconsequence of that injury is also compensable. Hubley v. Best Western Governor’s Inn, 52 \nArk. App. 226, 916 S.W.2d 143 (1996). But here, the claimant did not allege that she \nsuffered a back injury as a compensable consequence of her alleged knee injury. She alleged \nthat her back was injured by specific incident at the same time that her was injured. Even \nif she had alleged a back injury as a compensable consequence, that claim would fail \nbecause she has failed to prove by a preponderance of the evidence that she suffered a \ncompensable knee injury.","textLength":30974,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM No H307394 PATRICE GILMER, EMPLOYEE CLAIMANT WAL-MART ASSOCIATES, INC., SELF- INSURED EMPLOYER RESPONDENT WAL-MART CLAIMS SERVICES, THIRD-PARTY ADM’R RESPONDENT OPINION & ORDER FILED 30 SEPTEMBER 2025 Heard before Arkansas Workers’ Compensation Commission Admin...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:6"],"injuryKeywords":["back","knee","hip","sprain","lumbar","thoracic","shoulder"],"fetchedAt":"2026-05-19T22:36:51.537Z"},{"id":"alj-H305993-2025-09-30","awccNumber":"H305993","decisionDate":"2025-09-30","decisionYear":2025,"opinionType":"alj","claimantName":"Clifton King","employerName":"Southeast Connections, LLC","title":"KING VS. SOUTHEAST CONNECTIONS, LLC AWCC# H305993 September 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KING_CLIFTON_H305993_20250930.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KING_CLIFTON_H305993_20250930.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H305993 \nCLIFTON B. KING, EMPLOYEE      CLAIMANT \n \nSOUTHEAST CONNECTIONS, LLC, \nEMPLOYER          RESPONDENT \n \nZURICH AMERICAN INSURANCE, \nINSURANCE CARRIER/TPA      RESPONDENT \n \n \nOPINION AND ORDER FILED SEPTEMBER 30, 2025 \n \nThe Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, was held on September 16, 2025. \nClaimant failed to appear. \nRespondents were represented by Michael C. Stiles, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 16\nth\n day of September, 2025, \nin Little  Rock,  Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute \npursuant  to  Arkansas  Code  Ann.  11-702  and  Rule 099.13 of the Arkansas Workers’ \nCompensation Commission, which has recently been renamed 11 C.A.R. 25-110(d) and \nwill be referred to by that name in the remainder of this opinion. The claimant was pro se \nand  failed  to  appear. The  respondents  were  represented  by Michael C.  Stiles of  Little \nRock, Arkansas.  \n A  Form AR-C was  filed  by  the  Claimant through  his  attorney on September  15, \n2023, alleging injuries to his shoulder on September 15, 2023. As reflected on Form AR-\n2 filed with the Commission on September 25, 2023, the Respondents accepted the claim \nas  compensable,  medical  only,  for  the  left  shoulder.  The  Claimant’s  attorney,  Mark \n\nCLIFTON B. KING – H305993 \n2 \n \nPeoples  filed  a  Motion  to Withdraw  on  December  27,  2023,  and  an  Order  by  the  Full \nCommission dated January 9, 2025, allowed the Claimant’s attorney to withdraw. \n A Motion to Dismiss Without Prejudice along with a Brief in Support of the Motion, \nwas  filed  on  July  11,  2025, requesting  that  the  matter  be  dismissed  without  prejudice \npursuant to 11 C.A.R. 25 -110(d) of the Arkansas Workers’ Compensation Commission \nfor failure to prosecute, or in the alternative that the matter be dismissed without prejudice \npursuant to A.C.A. 11-9-702 (a)(4) which provides for dismissal of a claim if no bona fide \nrequest for a hearing has been made within six (6) months of the filing of his claim. No \nresponse was filed by the Claimant in regard to the motion. The Motion to Dismiss alleged \nthat at no time since January 9, 2024, has the Claimant ever requested a hearing in regard \nto this matter, despite the passage of eighteen (18) months.   \n After proper notice, a hearing was held on September 16, 2025, and the claimant \nfailed  to  appear.  The Respondents  were  represented  by Michael  C.  Stiles.,  who \nrequested  that  the  matter  be  dismissed  pursuant  to 11  C.A.R.  110(d)  of  the  Arkansas \nWorkers’ Compensation Commission and A.C.A. 11-9-702 (a)(4). \n \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion  to  Dismiss without  prejudice pursuant  to 11  C.A.R.  110(d) of  the  Arkansas \nWorkers’ Compensation Commission and A.C.A. 11-9-702 (a)(4).   \nIT IS SO ORDERED. \n          \n     ____________________________ \n                 JAMES D. KENNEDY \n                ADMINISTRATIVE LAW JUDGE","textLength":3261,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305993 CLIFTON B. KING, EMPLOYEE CLAIMANT SOUTHEAST CONNECTIONS, LLC, EMPLOYER RESPONDENT ZURICH AMERICAN INSURANCE, INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED SEPTEMBER 30, 2025 The Hearing before Administrative Law Judge James D. Kennedy in...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:36:53.603Z"},{"id":"alj-H405677-2025-09-30","awccNumber":"H405677","decisionDate":"2025-09-30","decisionYear":2025,"opinionType":"alj","claimantName":"Keisha Martin","employerName":"Double H Burger Co LLC","title":"MARTIN VS. DOUBLE H BURGER CO LLC. AWCC# H405677 September 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Martin_Keisha_H405677_20250930.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Martin_Keisha_H405677_20250930.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H405677 \n \nKEISHA MARTIN, \nEMPLOYEE                                                                                                              CLAIMANT \n \nDOUBLE H BURGER CO LLC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nBRIDGEFIELD EMPLOYERS INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nBRIDGEFIELD EMPLOYERS INS. CO., \nTPA                                                                                                                        RESPONDENT \n \nOPINION FILED SEPTEMBER 30, 2025 \n \nHearing conducted on Tuesday, August  26, 2025,  before  the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Keisha Martin, Pro Se, of Pine Bluff, Arkansas.  \n \nThe Respondents  were represented by Mr. Guy  Alton  Wade,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non June 13, 2025.  A hearing on the motion was conducted on August 26, 2025, in Little Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a manager. The date for Claimant’s \nalleged injury was on May 28, 2024. She reported her injury to Respondent/Employer on the same \nday. Respondents admitted into the record Respondents’ Exhibit 1, pleadings, and correspondence, \nconsisting of 11 pages. The Commission has admitted into evidence Commission Ex. 1, pleadings, \ncorrespondence, and U.S. Mail return receipts, consisting of 10 pages, as discussed infra. \n\nMARTIN, AWCC No. H405677 \n \n2 \n \nThe record reflects on September 3, 2024, a Form AR-1 was filed with the Commission \npurporting that Claimant slipped and fell and sustained injuries to his lower back and left knee. On \nSeptember  3,  2024,  a  Form  AR-2 was  filed by  Respondents neither  accepting  nor  denying \ncompensability. On  November  21, 2024,  a  Form  AR-C was filed by Claimant’s then-counsel, \nMark  Peoples,  purporting  that  Claimant  sustained  work-related  injury  to  her left  knee.  On \nDecember 2, 2024, Respondents filed a letter with the commission accepting compensability. On \nApril  25,  2025, Claimant’s  then-counsel filed  a  motion  to  withdraw  as  counsel. The  Full \nCommission granted the motion on May 16, 2025.  \nOn June  13,  2025, Respondents’ counsel filed  a  Motion  to  Dismiss due  to Claimant’s \nfailure to prosecute her claim. The Claimant was sent, on June 19, 2025, notice of the Motion to \nDismiss, via certified and regular U.S. Mail, to her last known address. The certified motion notice \nwas claimed  by  Claimant as  noted on  the June 23,  2025,  return  receipt. The  Claimant  did not \nrespond to the Motion, in writing, as required. Thus, in accordance with applicable Arkansas law, \nthe Claimant was mailed due and proper legal notice of Respondents’ Motion to Dismiss hearing \ndate  at  her current  address  of  record  via  the  United  States  Postal  Service  (USPS),  First  Class \nCertified  Mail,  Return  Receipt  Requested,  and  regular  First-Class  Mail,  on July  16,  2025.  The \ncertified notice was not claimed as noted by the July 31, 2025, return receipt. The hearing notice \nsent regular First-Class was not returned to the Commission. The hearing took place on August \n26, 2025. And as mentioned before, the Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n\nMARTIN, AWCC No. H405677 \n \n3 \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the July 30,  2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with 11  C.A.R. §25-110(d), the  Commission  scheduled  and  conducted  a \nhearing,  with  reasonable  notice, on  the Respondents’ Motion  to Dismiss. The  certified  hearing \nnotice was not claimed by Claimant, per the return postal notice bearing the July 31, 2025, date. \nHowever,  the  hearing  notice  sent  regular  First-Class  mail  was  not  returned  to  the  Commission. \nThe  Claimant  is  responsible  for  updating  her address  with  the  Commission. Thus,  I  find  by  the \npreponderance of the evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §25-110(d) allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed her Form \nAR-C on November 21, 2024. Since then, she has failed to request a bona fide hearing. Therefore, \n\nMARTIN, AWCC No. H405677 \n \n4 \n \nI do find by the preponderance of the evidence that Claimant has failed to prosecute her claim by \nfailing to request a hearing. Thus, Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6347,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H405677 KEISHA MARTIN, EMPLOYEE CLAIMANT DOUBLE H BURGER CO LLC., EMPLOYER RESPONDENT BRIDGEFIELD EMPLOYERS INS. CO., CARRIER RESPONDENT BRIDGEFIELD EMPLOYERS INS. CO., TPA RESPONDENT OPINION FILED SEPTEMBER 30, 2025 Hearing conducted on Tuesday, August 26, 2...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["back","knee"],"fetchedAt":"2026-05-19T22:36:55.683Z"},{"id":"alj-H407642-2025-09-30","awccNumber":"H407642","decisionDate":"2025-09-30","decisionYear":2025,"opinionType":"alj","claimantName":"Colleen Mcveigh","employerName":"Hillcrest Home","title":"MCVEIGH VS. HILLCREST HOME AWCC# H407642 September 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MCVEIGH_COLLEEN_H407642_20250930.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCVEIGH_COLLEEN_H407642_20250930.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H407642 \n \nCOLLEEN MCVEIGH, Employee CLAIMANT \n \nHILLCREST HOME, Employer RESPONDENT \n \nCCMSI, Carrier RESPONDENT \n \n \n \n OPINION FILED SEPTEMBER 30, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Harrison, Boone \nCounty, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On November  21,  2024,  the  claimant  filed  an  AR-C  requesting  various  compensation \nbenefits in which she alleges injuries to her right shoulder on or about October 14, 2024. There \nhas been no request for a hearing and no further action was taken in this claim. \n On May 7, 2025, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed for lack of prosecution. A hearing was scheduled for August 28, 2025. Notice of that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on June  18,  2025. \nUnited States Postal Department records indicate that claimant received and signed for the notice \non Juen 23, 2025. Despite having received notice of the scheduled hearing, the claimant failed to \nappear at the hearing and has failed to respond to the motion in any form or manner. \n\nMcVeigh – H407642 \n \n-2- \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution After a review of the \nrespondents’ Motion to Dismiss, the claimant’s lack of desire to pursue her claim, and her failure \nto appear at the scheduled hearing, as well as all other matters properly before the Commission, I \nfind  that  claimant  has  failed  to  prosecute  this  claim.  Therefore,  this  claim  is  dismissed  without \nprejudice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2186,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H407642 COLLEEN MCVEIGH, Employee CLAIMANT HILLCREST HOME, Employer RESPONDENT CCMSI, Carrier RESPONDENT OPINION FILED SEPTEMBER 30, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Harrison, Boone County, Arkansas. Claimant not represented by ...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:36:57.748Z"},{"id":"full_commission-H005445-2025-09-29","awccNumber":"H005445","decisionDate":"2025-09-29","decisionYear":2025,"opinionType":"full_commission","claimantName":"Gerardo Munoz","employerName":"Azz Galvanizing, Inc","title":"MUNOZ VS. AZZ GALVANIZING, INC. AWCC# H005445 September 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Munoz_Gerardo_H005445_20250929.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Munoz_Gerardo_H005445_20250929.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H005445 \n \nGERARDO PEREZ MUNOZ, \nEMPLOYEE \n \nCLAIMANT \nAZZ GALVANIZING, INC.,  \nEMPLOYER \n \nRESPONDENT \nAMERICAN ZURICH INSURANCE CO., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 29, 2025  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed April \n7, 2025.  The administrative law judge found that res judicata barred \ncompensability of an injury to the claimant’s cervical spine.  The Full \nCommission finds that the claimant did not prove by a preponderance of the \nevidence that he sustained a compensable injury to his neck or cervical \nspine.     \nI.  HISTORY \n Gerardo Perez Munoz, now age 54, testified that he became \nemployed as a production worker for the respondents in about September \n\nMUNOZ - H005445  2\n  \n \n \n2019.  The parties stipulated that the employment relationship existed on \nJune 10, 2020.  The claimant testified on direct examination: \n  Q.  What happened on June 10\nth\n of 2020? \nA.  Well, the department in which I hurt my shoulder \nhappened. \n  Q.  Can you describe how it happened? \nA.  The accident was the person behind us was working with a \nmachine and he did not turn off the machine, so it was loose \nand it hit me and that is when I hurt my shoulder.  Well, it \nwasn’t that it hit me.  It was that – it’s my – the person who \nwas working with me yelled at me and so I pushed it.  That’s \nhow I hurt my shoulder. \n \n The respondents’ attorney examined Cathy Copeland, the \nrespondent-employer’s safety coordinator: \nQ.  And were you the safety coordinator at the time Mr. Perez \nreported his injury? \n  A.  Yes.   \nQ.  Can you tell us what you recall about what he told you \nregarding his injury. \nA.  He came into my office that morning just a little bit after 6 \no’clock and told me that – he called them the frames fell (sic).  \nThe crane had hit one and they fell and hit him. \nQ.  Okay.  And did he tell you where it hit him? \nA.  He was holding his shoulder. \nQ.  Did he say he was hit in the shoulder? \nA.  He said it hit him.  Specifically the shoulder, not \nnecessarily, but he was holding his shoulder.... \nQ.  And after that was reported, what did you do? \nA.  They gave us a claim number and they told us to go to the \nwalk-in clinic in Fayetteville, which didn’t open until 8:00.... \nQ.  So did you drive him there? \nA.  I did.   \n \n According to the record, the claimant treated at MedExpress \nFayetteville on June 10, 2020:  “Patient comes in today for a Pain, \n\nMUNOZ - H005445  3\n  \n \n \nShoulder.  Hurt right shoulder this morning when trying to push a heavy \npiece of metal, painful to raise arm, hand feels ‘asleep’ at times....this am \nwhile at work a heavy piece of metal was falling towards pt put hands up to \nstop metal and developed pain to right shoulder[.]”  A physician assessed \n“Unspecified sprain of right shoulder joint[.]”  It was reported at MedExpress \non June 17, 2020, “Patient comes in today for [an] injury to shoulder.  Hurt \nright shoulder at work on June 10\nth\n at 6:00 am.”     \nDr. Clinton C. Turner noted on December 30, 2020, “Pt comes in \nwith right shoulder pain that started 3-4 months ago at work.”  Dr. Turner’s \nassessment included “Acute pain of right shoulder” and “Subacromial \nbursitis of right shoulder joint.”   \nThe claimant was provided physical therapy visits beginning January \n20, 2021, at which time it was noted, “Pt c/o right shoulder pain since June \n’20, after pushing a big piece of metal away from his shoulder while \nworking.  States he is having trouble reaching and lifting with RUE now; he \nis having trouble sleeping, and he feels numbness in his right hand/fingers \nwhen waking up in the mornings.  He also c/o right side neck pain and \ntightness.”  The physical therapist noted that the claimant was experiencing \n“intermittent numbness in his right hand, consistent with cervical \nderangement.”        \n\nMUNOZ - H005445  4\n  \n \n \n A pre-hearing order was filed on January 27, 2021.  The claimant \ncontended, “The claimant contends he sustained a compensable injury to \nhis right hand, arm, and shoulder and that he is entitled to medical benefits \nas a result thereof.  Claimant reserves all other issues.”   \n The respondents contended, “The respondents contend the claimant \ndid not sustain a compensable injury to his right hand, arm, or shoulder that \narose out of and in the course of his employment as a result of a specific \nincident and that is established by objective medical findings of an injury.”   \n The parties agreed to litigate the following issues: \n1. Compensability of injury to claimant’s right hand, arm, and \nshoulder on June 10, 2020. \n2. Related medical.   \n \nThe physical therapist noted on February 4, 2021, “Pt reports he felt \nfine after previous PT session, and has less neck pain now.  States his left \nupper arm continues to hurt, with 3-10 pain rating.  He also reports having \nmild numbness in his right hand.”   \nDr. Turner’s assessment on February 19, 2021 included “Acute pain \nof right shoulder,” “Cervical radiculopathy,” and “Right arm numbness.”   \nAn MRI of the claimant’s cervical spine was taken on February 26, \n2021 with the following impression: \n1. Motion artifact limits image quality and interpretation. \n2. Cervical spondylosis, worst at the C5-6 and C6-7 levels \nwhere there is mild to moderate canal and foraminal \nnarrowing.   \n\nMUNOZ - H005445  5\n  \n \n \n \nThe physical therapist noted on February 26, 2021, “No neck pain.”   \nThe claimant was discharged from physical therapy on March 5, \n2021.   \nAn MRI of the claimant’s right shoulder was taken on April 14, 2021: \n HISTORY:  Acute right shoulder pain.... \nIMPRESSION:  1.  Advanced infraspinatus tendinosis with \nmoderate to severe infraspinatus muscle atrophy. \n2.  Mild supraspinatus tendinosis. \n3.  Advanced tendinosis of the long head of the biceps tendon \nwith associated mild tenosynovitis. \n4.  Mild degenerative change of the acromioclavicular joint \nwith presence of an os acromiale.   \n \n Dr. Robert Macleod reported on April 23, 2021: \n50-year-old male comes in for evaluation of right shoulder \npain that began probably a year ago when he was working he \nwas lifting up overhead and felt a soreness in his right \nshoulder.  He filed a workers comp claim but apparently there \nis no causality and he continued to have pain in his right \nshoulder worse with overhead lifting and sleeping at night.  Is \nbetter with rest and anti-inflammatories because the persistent \nthe symptoms he had x-rays and MRI which demonstrated \npossible rotator cuff tear is referred here for further evaluation \nand treatment.... \nMRI of the right shoulder is reviewed and demonstrates \nsignificant tendinosis of the supra and infraspinatus with \nmuscle atrophy of the infraspinatus probably partial thickness \ntear.... \nAfter discussion of the risks and benefits, the patient elected \nto proceed with a Depro-Medrol injection into the right \nshoulder.... \n \n A hearing was held on May 26, 2021.  The claimant’s attorney stated \nat that time, “We are contending that the injury – and I think the \n\nMUNOZ - H005445  6\n  \n \n \nrespondents know this – is to the shoulder and that the arm and hand – the \nshoulder and the upper arm, but the hand is a symptom, so that is not a \nseparate injury.”   \nAn administrative law judge filed an opinion on June 28, 2021.  The \nadministrative law judge found, in pertinent part: \n2.  Claimant has met his burden of proving by a \npreponderance of the evidence that he suffered a \ncompensable injury to his right shoulder and upper arm while \nworking for respondent on June 10, 2020.   \n3.  Respondent is liable for payment of all reasonable and \nnecessary medical treatment provided in connection with \nclaimant’s compensable injury.   \n \n The parties thereafter stipulated that the administrative law judge’s \nJune 28, 2021 opinion was “final.”   \n Dr. James Boyle’s assessment on February 10, 2022 was “1.  Partial \nthickness rotator cuff tear.”  Dr. Boyle performed surgery on April 25, 2022:  \n“1.  Right shoulder arthroscopic rotator cuff repair.  2.  Right shoulder \narthroscopic biceps tenodesis for biceps tendon tear.  3.  Right shoulder \narthroscopic subacromial decompression.”  The pre- and post-operative \ndiagnosis was “Right shoulder rotator cuff tear, right shoulder biceps tendon \ntear, and right shoulder subacromial impingement.”   \n Dr. Christopher Dougherty performed surgery on October 17, 2023:  \n“1.  Removal of deep orthopedic hardware.  2.  Subacromial decompression \nwith distal clavicle resection.”  The pre- and post-operative diagnosis was \n\nMUNOZ - H005445  7\n  \n \n \n“1.  Painful retained orthopedic hardware, right shoulder.  2.  Impingement \nsyndrome and acromioclavicular joint arthritis.”   \n On June 26, 2024, Dr. Dougherty appeared to indicate that the \nclaimant had reached maximum medical improvement effective June 5, \n2024.  Dr. Dougherty assigned the claimant a 10% permanent impairment \nrating.   \n A pre-hearing order was filed on January 15, 2025.  The claimant \ncontended, “The claimant contends his neck was injured at the same time \nhis shoulder was injured and he is entitled to medical treatment for his neck.  \nClaimant reserves all other issues.” \n The respondents contended, “The respondents acknowledge that the \nclaimant sustained a 10% impairment rating for his right shoulder injury for \nwhich he is entitled to permanent partial disability benefits.  Respondents \nhave initiated PPD benefits and are paying a controverted attorney’s fee on \nsaid benefits.  With regard to the alleged cervical injury, respondents \ncontend the claimant was the subject of a full hearing on May 26, 2021 \nwherein claimant alleged a compensable injury.  Following the taking of \ntestimony and review of the medical records, the ALJ found that the \nclaimant proved he sustained a compensable injury to his right shoulder \nand upper arm.  Res judicata applies where there has been a final \nadjudication on the merits of an issue by a court of competent jurisdiction \n\nMUNOZ - H005445  8\n  \n \n \non all matters litigated and those matters necessarily within the issue which \nmight have been litigated.  See Castleberry v. Elite Lamp Company, 69 Ark. \nApp. 359, 13 S.W.3d 211 (2000); Harvest Foods v. Washam, 52 Ark. App. \n72, 914 S.W.2d 776 (1996); Perry v. Leisure Lodges, Inc., 19 Ark. App. 143, \n718 S.W.2d 114 (1986).  Res judicata applies to decisions of the Workers’ \nCompensation Commission if the merits of the issue have already been \nsubject to a full and fair hearing.  Beliew v. Stuttgart Rice Mill, 64 Ark. App. \n334, 980 S.W.2d 270 (1998); Perry, supra.  The rationale underlying the \ndoctrine of res judicata is to end litigation by preventing a party who has \nhad one fair trial of a question of fact from again drawing it into controversy.  \nCox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 (2003); Mohawk Tire & \nRubber Co. v. Brider, 259 Ark. 728, 536 S.W.2d 126 (1976).”   \n The parties agreed to litigate the following issues: \n1. Compensability of injury to claimant’s cervical spine on \nJune 10, 2020. \n2. Related medical. \n3. Res judicata.   \n4. Law of case. \n5. Claim proclusion. I (sic). \n \nA hearing was held on March 12, 2025.  The claimant testified on \ndirect examination: \nQ.  Can you briefly describe what happened to you on June \n10\nth\n of 2020. \nA.  That is when the accident that I had with the company \nhappened.  A piece of metal – a piece of metal was coming \ntowards me and so that it wouldn’t hit me directly, I tried to \n\nMUNOZ - H005445  9\n  \n \n \npush it with my hands and like tried to move aside so that it \nwouldn’t hurt me.  So that is where I injured my right arm.   \nQ.  And did you say you tried to push away with your hands or \ndid you say your right hand? \nA.  I tried to push it with my hand, but what really felt the \nimpact was my shoulder.... \nQ.  And just after your accident, what were your symptoms? \nA.  It was lots of pain.  It was a very acute pain, very severe \npain, and I cannot really tell you if it was here on the shoulder \nor here on my neck.   \nQ.  Had the symptoms from the time of your injury up to the \ntime you had your first shoulder surgery, did they change? \nA.  From the shoulder, yes, but with the neck, no.  Up until \ntoday currently I still hurt from – I am still hurting from my \nneck.... \nQ.  So are you describing pain from behind your right ear \ndown your neck and to your right shoulder? \nA.  Yes. \nQ.  And that has been present since right after your accident? \nA.  Yes.   \n \n An administrative law judge filed an opinion on April 7, 2025.  The \nadministrative law judge found that the claimant proved he was “entitled to \npayment of permanent partial disability benefits in an amount equal to 10% \nto the body as a whole for his compensable right shoulder injury.”  The \nadministrative law judge found that the respondents had controverted the \nclaimant’s entitlement to permanent anatomical impairment, and that the \nrespondents were liable for payment of an attorney’s fee.  The respondents \ndo not appeal the administrative law judge’s findings with regard to \nanatomical impairment and fees for legal services.   \nThe administrative law judge found, “2.  Claimant’s claim for \ncompensability of an injury to his cervical spine on June 10, 2020, is barred \n\nMUNOZ - H005445  10\n  \n \n \nby the doctrine of res judicata.”  The claimant appeals to the Full \nCommission.   \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n(A)  “Compensable injury” means” \n(i)  An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in \nthe course of employment and which requires \nmedical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific \nincident and is identifiable by time and place of \noccurrence[.]   \n \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012). \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).     \n An administrative law judge found in the present matter, “2.  \nClaimant’s claim for compensability of an injury to his cervical spine on \nJune 10, 2020, is barred by the doctrine of res judicata.”  The Full \n\nMUNOZ - H005445  11\n  \n \n \nCommission finds that the claimant did not prove by a preponderance of the \nevidence that he sustained a compensable injury to his neck or cervical \nspine. \n The claimant testified that he had formerly been employed as a \nproduction worker for the respondents.  The parties stipulated that the \nemployment relationship existed on June 10, 2020.  The claimant testified \nthat he injured his shoulder on that date as the result of a work-related \naccident.  The claimant did not initially contend that he injured any other \nbody part but expressly testified, “I hurt my shoulder.”  The respondent-\nemployer’s safety coordinator testified that the claimant was “holding his \nshoulder” following the accidental injury.  According to the record, the \nclaimant was treated at MedExpress on June 10, 2020 for “Pain, \nShoulder....Hurt right shoulder this morning when trying to push a heavy \npiece of metal[.]”  A physician’s assessment on June 10, 2020 was “sprain \nof right shoulder joint.”  The treating physician did not report an injury to the \nclaimant’s neck or cervical spine.   \n Dr. Turner examined the claimant on December 30, 2020 and noted, \n“Pt comes in with right shoulder pain that started 3-4 months ago at work.”  \nDr. Turner assessed “Acute pain of right shoulder” and “Subacromial \nbursitis of right shoulder joint.”  Dr. Turner did not report that the claimant \nhad injured his neck or cervical spine.  A physical therapist reported on \n\nMUNOZ - H005445  12\n  \n \n \nJanuary 20, 2021 that the claimant was suffering from “right side neck pain \nand tightness.”  The therapist noted that the claimant’s symptoms were \nconsistent with “cervical derangement.”  The evidence does not \ndemonstrate that the notation of “cervical derangement” on January 20, \n2021 was causally related to the right shoulder injury which occurred on \nJune 10, 2020.  Nor does the evidence demonstrate that Dr. Turner’s \nassessment of “Cervical radiculopathy” on February 19, 2021 was causally \nrelated to the right shoulder injury which occurred on June 10, 2020.  A \nphysical therapist noted on February 26, 2021 that there was “No neck \npain,” and the claimant was discharged from physical therapy on March 5, \n2021.   \n A hearing was held on May 26, 2021.  The claimant’s attorney stated \nat that time, “We are contending that the injury – and I think the \nrespondents know this – is to the shoulder and that the arm and hand – the \nshoulder and the upper arm, but the hand is a symptom, so that is not a \nseparate injury.”  The claimant did not contend that at that time that he had \nsustained a compensable neck or cervical injury.  An administrative law \njudge filed an opinion on June 28, 2021 and found that the claimant proved \nhe sustained “a compensable injury to his right shoulder and upper arm \nwhile working for respondent on June 10, 2020.”  The parties have \nstipulated that the administrative law judge’s June 28, 2021 decision was \n\nMUNOZ - H005445  13\n  \n \n \nfinal.  The claimant underwent surgeries to his right shoulder on April 25, \n2022 and October 17, 2023.  Dr. Dougherty assigned the claimant a 10% \npermanent impairment rating on or about June 26, 2024.  The respondents \ndo not appeal the administrative law judge’s finding that the claimant \nsustained a 10% whole-body impairment related to the compensable right \nshoulder injury, and that the respondents had controverted the claimant’s \nentitlement to permanent anatomical impairment.   \n A pre-hearing order was filed on January 15, 2025.  The claimant \ncontended that he injured his neck at the same time he injured his right \nshoulder.  The parties expressly agreed to litigate the issue, “1.  \nCompensability of injury to claimant’s cervical spine on June 10, 2020.”   \n In accordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012), \nthe Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that he sustained a compensable injury to \nhis neck or cervical spine.  The claimant did not prove that he sustained an \naccidental injury causing internal or external physical harm to his neck or \ncervical spine.  The claimant did not prove that he sustained an injury to his \nneck or cervical spine which arose out of and in the course of employment, \nrequired medical services, or resulted in disability.  The claimant did not \nprove that he sustained a compensable injury to his neck or cervical spine \nwhich was caused by a specific incident or was identifiable by time and \n\nMUNOZ - H005445  14\n  \n \n \nplace of occurrence on June 10, 2020 or any other date.  In addition, the \nclaimant did not establish a compensable injury to his neck or cervical spine \nwhich was established by medical evidence supported by objective findings.  \nThe evidence does not demonstrate that the findings of “Cervical \nradiculopathy” or “Cervical spondylosis” can be interpreted as objective \nmedical evidence establishing a compensable injury to the claimant’s neck \nor cervical spine.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that he \nsustained a compensable injury to his neck or cervical spine.  Therefore, we \nneed not adjudicate whether res judicata bars the claim for an alleged neck \nor cervical injury.  The Full Commission denies the claimant’s request to \nremand to the administrative law judge for additional proceedings.  See Ark. \nCode Ann. §11-9-704(b)(7)(Repl. 2012).  The claim for an alleged injury to \nthe claimant’s neck or cervical spine is respectfully dismissed. \n IT IS SO ORDERED.     \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":21015,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H005445 GERARDO PEREZ MUNOZ, EMPLOYEE CLAIMANT AZZ GALVANIZING, INC., EMPLOYER RESPONDENT AMERICAN ZURICH INSURANCE CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 29, 2025","outcome":"denied","outcomeKeywords":["remanded:1","dismissed:1","denied:5"],"injuryKeywords":["cervical","neck","shoulder","sprain","rotator cuff"],"fetchedAt":"2026-05-19T22:29:44.058Z"},{"id":"full_commission-H303639-2025-09-29","awccNumber":"H303639","decisionDate":"2025-09-29","decisionYear":2025,"opinionType":"full_commission","claimantName":"Afrim Rushani","employerName":"Nbmc, Inc","title":"RUSHANI VS. NBMC, INC. AWCC# H303639 September 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Rushani_Afrim_H303639_20250929.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Rushani_Afrim_H303639_20250929.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H303639 \n  \nAFRIM RUSHANI, EMPLOYEE  CLAIMANT \n \nNBMC, INC., EMPLOYER RESPONDENT \n \nTRAVELERS INDEMNITY CO. OF CT, CARRIER \nTHE TRAVELERS INDEMNITY CO., TPA RESPONDENT \n \n \nOPINION FILED SEPTEMBER 29, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rok, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed June 26, 2025.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Commission has jurisdiction over this claim.  \n \n2. The stipulations as set forth above are accepted. \n \n3. The claimant has proven by a preponderance of the evidence that \nhe is entitled to a wage-loss benefit of ten percent (10%) over and \nabove his eight percent (8%) whole-body impairment rating for his \nstipulated compensable back injury. \n\n \nRUSHANI - H303639  2\n  \n \n \n4. The claimant has proven by a preponderance of the evidence that \nhe  is  entitled  to  an  attorney’s  fee  on  the  indemnity  benefits \nawarded in this opinion. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's June 26, \n2025 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents. \n \n \n \n \n\n \nRUSHANI - H303639  3\n  \n \n \nDISSENTING OPINION \n \n \nThe Claimant appeals an Administrative Law Judge (hereinafter \nreferred to as “ALJ”) Opinion which stated that Claimant has proven by a \npreponderance of the evidence that he is entitled to a wage-loss benefit of \nten percent (10%) over and above his eight percent (8%) whole-body \nimpairment rating for his stipulated compensable back injury.  After \nconducting a thorough review of the record, I would find that the Claimant is \nentitled to a thirty-five percent (35%) wage-loss benefit over and above his \neight percent (8%) whole-body impairment rating for his stipulated \ncompensable back injury.  \nWage-loss factor is the extent to which a compensable injury has \naffected the Claimant’s ability to earn a livelihood.  Whitlatch v. Southland \nLand & Dev., 84 Ark. App. 399, 141 S.W. 3d 916 (2004).  The Commission \nis charged with the duty of determining disability.  Cross v. Crawford County \nMemorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996).  In considering \nclaims for permanent partial disability benefits in excess of the employee’s \npercentage of permanent physical impairment, the Workers’ Compensation \nCommission may take into account, in addition to the percentage of \npermanent physical impairment, such factors as the employee’s age, \n\n \nRUSHANI - H303639  4\n  \n \n \neducation, work experience, and other matters reasonably expected to \naffect his or her future earning capacity.  Ark. Code Ann. § 11-9-522(b)(1). \nSuch other matters are motivation, post-injury income, credibility, \ndemeanor, and a multitude of other factors.  Glass v. Edens, 233 Ark. 786, \n346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 \nS.W.2d 946 (1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 \nS.W.2d 130 (1990); Cross v. Crawford County Memorial Hosp., supra.  It is \nwell established that a claimant’s prior work history and education are \nfactors to be considered in determining eligibility for wage-loss benefits.  \nSee Cross v. Crawford County Memorial Hosp., supra.; Glass v. Edens, \nsupra.; City of Fayetteville v. Guess, supra.; Curry v. Franklin Electric, \nsupra. \n Claimant is 36 years old.  Claimant did not graduate high school and \nhas an education up to sophomore year in high school.  Claimant began \nworking manual labor jobs since leaving high school and has no higher \neducation or certifications.  Claimant’s work-history is only in manual labor. \nIn the ALJ’s Opinion, it is noted that the Claimant has few skills that would \ntranslate outside of physical labor. \n Claimant underwent a functional capacity evaluation (or “FCE”) on \nApril 29, 2024, where he was given a light classification with reliable results \n\n \nRUSHANI - H303639  5\n  \n \n \nbased on an 8-hour workday.  Of note, the Claimant put forth 49 out of 49 \nconsistency measures within expected limits.  Ultimately, the Respondents \ndid not return the Claimant to any position within their company that fit within \nthe Claimant’s light classification.  \nClaimant’s compensable injuries have affected his ability to earn a \nlivelihood.  Claimant  has  limited  education.    Claimant  is  unable  to  perform \nlabor intensive work as he has in the past.  Pursuant to the stipulations by \nthe  parties  at  the  hearing,  the  Claimant’s  average  weekly  wages  were \napproximately  $1,159.89.    The  credible  evidence  in  the  record  supports  a \nfinding that the Claimant will be unable to earn wages in that range given his \nlimited  training  and  work  restrictions.  This  Commission  has  ruled  that \nsignificant  wage-loss benefits  are appropriate  for  fact  patterns  such  as  the \ncase at hand.  See Ark. Dot v. Abercrombie, 2019 Ark. App. 372, 584 S.W.3d \n701 (2019); Ark. Highway & Transp. Dep’t v. Wiggins, 2016 Ark. App. 364, \n499 S.W.3d 229.  Therefore, I would rule that the Claimant is entitled to 35% \nwage-loss disability over and above his permanent impairment rating. \n \n    ___________________________________ \n  M. SCOTT WILLHITE, Commissioner","textLength":6340,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303639 AFRIM RUSHANI, EMPLOYEE CLAIMANT NBMC, INC., EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO. OF CT, CARRIER THE TRAVELERS INDEMNITY CO., TPA RESPONDENT OPINION FILED SEPTEMBER 29, 2025 Upon review before the FULL COMMISSIO...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:44.066Z"},{"id":"full_commission-H404754-2025-09-25","awccNumber":"H404754","decisionDate":"2025-09-25","decisionYear":2025,"opinionType":"full_commission","claimantName":"Amanda Engleman","employerName":"Washington Regional Medical Center","title":"ENGLEMAN VS. WASHINGTON REGIONAL MEDICAL CENTER AWCC# H404754 September 25, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Engleman_Amanda_H404754_20250925.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Engleman_Amanda_H404754_20250925.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H404754  \n \nAMANDA ENGLEMAN, \nEMPLOYEE \n \nCLAIMANT \nWASHINGTON REGIONAL MEDICAL CENTER,  \nEMPLOYER \n \nRESPONDENT \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 25, 2025  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nApril 18, 2025.  The administrative law judge found that the claimant proved \nshe sustained a compensable injury.  After reviewing the entire record de \nnovo, the Full Commission reverses the administrative law judge’s opinion.  \nThe Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that she sustained a compensable injury.     \nI.  HISTORY \n Amanda Engleman, now age 44, testified on direct examinaton: \n\nENGLEMAN - H404754  2\n  \n \n \nQ.  It is my understanding that you had had an injury to your \nleft shoulder before this June 2, 2023 incident ever happened.  \nIs that correct? \nA.  Yes, I did. \nQ.  Tell us what happened. \nA.  We were remodeling our home and painting the bedroom.  \nMy husband took the stepladder out of the room and I saw a \nspot a little higher up on the wall that I wanted to get.  And \nsince he had already taken the stepladder out, I thought it was \ngoing to be a smart idea to just jump on a chair and go from \nthe chair to the barstool and I fell.   \nQ.  And did you sustain any kind of injury as a result of that \nfall? \nA.  It hurt for about three weeks, I want to say three weeks, \nand then it resolved on its own.   \nQ.  When you say it, what is it?  What part of your body? \nA.  The left shoulder, elbow.  I landed on my elbow.   \nQ.  You landed on your left elbow? \nA.  Yes. \nQ.  And injured your left shoulder? \nA.  Yes.   \n \n The claimant sought treatment at Mercy Convenient Care on \nFebruary 17, 2022.  The claimant complained of left shoulder pain and it \nwas noted, “Fall occurred:  Tripped and walking.  Impact surface:  Hard \nfloor.”  An x-ray of the claimant’s left shoulder was taken on February 17, \n2022 with the impression, “Negative left shoulder x-ray.” \n The claimant testified that she became employed with the \nrespondents, Washington Regional Medical Center, in November 2022.  \nThe claimant testified that her employment position with the respondents \nwas “Operating Room Circulator.”     \n\nENGLEMAN - H404754  3\n  \n \n \nThe parties stipulated that the employment relationship existed on \nJune 2, 2023.  The claimant testified on direct examination: \nQ.  Ms. Engleman, where were you employed on June 2 of \n2023? \n A.  Washington Regional Medical Center. \n Q.  Did anything unusual happen to you on that day? \n A.  Yes. \n Q.  What? \nA.  We were in a case with Dr. Kendrick and the patient was in \na prone position at the time.  The CRNA alerted me that the \npatient was sliding off of the operating room table because Dr. \nKendrick had to put her in – well, she was prone and he had \nto put her in Trendelenburg to get to the area that he was \noperating on and he said that he needed help.  So I got under \nthe table, under the drapes, and was trying to reposition the \npatient back into a position where she wouldn’t fall off the \ntable and at that time I started feeling pain in my shoulders, so \nI changed my position and got underneath the patient a little \nbit better.  And then the CRNA said he was going to tilt the \nbed the opposite direction so that I could push against her and \nwe would have gravity to help us reposition.  Instead, he hit \nthe button and it tilted towards me so I had the patient over \nmy head and both shoulders went back.  My left shoulder \npopped.  I had to stay there because at that point I couldn’t \npush the patient any more to the operating room table.  And \nwe finished the surgery in about five minutes, so I was there \nunder her the whole five minutes holding her above my head.  \nAnd when we completed everything and got her switched over \nto the gurney to transport her to PACU, I went and told the \nboss my left shoulder had popped and my right one was \nhurting, they were both hurting, so they sent me to the \nemployee health nurse.   \n \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on June 2, 2023.  The ACCIDENT INFORMATION section of the \nForm AR-N indicated that the Date of Accident was June 2, 2023, and that \n\nENGLEMAN - H404754  4\n  \n \n \nthe claimant injured “Both shoulders.”  The claimant wrote regarding the \ncause of injury, “holding heavy weight of patient to prevent injury.”   \n According to the record, the claimant treated at Conservative Care \nOccupational Health on June 2, 2023: \nAmanda Engleman is a 42 year-old Female, and employee of \nWashington Regional/WRMC.... \nEmployer Description of Accident:  Employer states patient \nwas trying to reposition a patient on the surgery table and \ninjured both shoulders.  Her date of injury is June 2, 2023.... \nPatient states she was repositioning a large client on the \nsurgical table when she felt a pop and sharp pain in her left \nshoulder.  She had to hold the client with both arms for an \nextended period of time, and now her right shoulder is hurting \nas well.... \nAmanda’s primary problem is Pain located in the Left \nshoulder.  She describes it as burning, sharp....The problem \nbegan on 6/2/2023....Amanda’s secondary problem is Pain \nlocated in the Right shoulder....The problem began on \n6/2/2023.... \nIMAGING STUDIES \nX-RAY – Left Shoulder:  Degenerative changes.  Spurring \nover the acromion.  No Fracture Seen.  Acute Findings – \nAbsent. \nNumber of views:  3 views were taken of the left shoulder.   \nXRAY – Right Shoulder:  Degenerative changes.  No Fracture \nSeen.  Acute Findings – Absent.   \nNumber of views:  3 views were taken of the right shoulder.... \nPatient reports having general aches and pains to her \nshoulders in the past, last episode approximately 1 year ago, \nbut has never had to have formal treatment for either shoulder \nbefore this reported injury.  Today’s x-rays are negative for \nacute abnormalities.... \nThe cause of this problem appears to be related to work \nactivities.   \n \n\nENGLEMAN - H404754  5\n  \n \n \n Amanda Bell, APRN diagnosed “1.  Left shoulder pain” and “2.  Right \nshoulder pain.”  Ms. Bell planned conservative treatment, and she assigned \na Work Status of “Restricted Duty.” \n Dr. Konstantin V. Berestnev’s diagnosis on June 9, 2023 was “1.  \nPain in left shoulder” and “2.  Pain in right shoulder....The cause of this \nproblem appears to be related to work activities.”  Dr. Berestnev continued \nthe work status “Restricted Duty,” “No work above the shoulders.”   \n The claimant was provided a program of physical therapy.  A \nphysical therapist noted on June 14, 2023, “Pt is RHD 42 YOF with C/O \nconstant anterior/superior shoulder pain L>R.  Reports initial onset of pain \non 6/2/23 after catching a patient from sliding off of a table.  Reports table \nwas elevated at OR patient’s midsection and she slid down causing her to \nbe on her knees pushing upward to stop momentum....She is currently on \nwork restrictions.  Denies any other shoulder treatments.”  The claimant \ntestified that she did not benefit from physical therapy, and that physical \ntherapy “actually aggravated the situation.”       \n Dr. Berestnev stated on June 30, 2023, “Amanda’s recommended \nwork status is Regular Duty.”  The claimant was discharged from physical \ntherapy on July 18, 2023.  The claimant continued to occasionally follow up \nat Conservative Care Occupational Health.  Dr. Berestnev reported on \nAugust 8, 2023, “Patient states her bilateral shoulder pain is better.”   \n\nENGLEMAN - H404754  6\n  \n \n \n Dr. J. Clayton noted on March 26, 2024 that the claimant’s chief \ncomplaint was left shoulder pain.  Dr. Clayton noted: \nHistory:  This patient has had pain in her left shoulder ever \nsince she hurt it about 2 years ago when she was moving a \ndog into another seat of the car.  She is (sic) already done \nphysical therapy which was done this past June through \nAugust she has been on ibuprofen she has not had any \ninjections or used prescription NSAIDS. \nExam:  Patient does not have weakness in the shoulder but \ndoes have positive impingement signs.  Neurovascularly \nintact.   \nImaging:  Plain films of the left shoulder failed to demonstrate \nfracture or dislocation.   \nMedical decision making:  Rotator cuff impingement on the \nleft.  We are going to try some meloxicam as well as an \ninjection today.  If those things are not successful advanced \nimaging would be reasonable given that she has already done \ntherapy.   \n \n Dr. Clayton noted on April 16, 2024: \nThis patient had an injury to her left shoulder which was \nactually from a fall loading her shoulder directly though there \nwas also an incident involving repositioning a dog but that was \nnot actually the inciting event.  Short of it is this was a trauma \nto her shoulder.  She has already done injections formal \nphysical therapy and chiropractics and continues to have pain \nin her shoulder that is severe enough that it wakes her up at \nnight.... \nImaging:  Plain films of the left shoulder are unremarkable \nwithout fracture or dislocation.... \n \n Dr. Clayton arranged for an MRI of the claimant’s left shoulder, which \nwas taken on May 7, 2024 with the following impression: \n1. There is a small amount of fluid in the subacromial bursa \nwhich may be secondary to bursitis or tendinitis. \n2. There is mild degenerative change at the \nacromioclavicular joint.   \n\nENGLEMAN - H404754  7\n  \n \n \n \nDr. Clayton noted on May 14, 2024, “MRI was reviewed with the \npatient and was largely unremarkable though she does have some \ndegenerative changes at the AC joint.  Medical decision making:  Given the \npersistent pain despite nonsurgical treatments it might be reasonable to \nconsider something like a subacromial decompression and distal clavicle \nexcision.  I am going to have her see one of my partners to be evaluated \nbut we may also consider ultrasound-guided biceps and were AC joint \ninfection.”   \nDr. T. Zimmerman reported on May 17, 2024: \nMs. Engleman has chronic and symptomatically uncontrolled \nleft shoulder pain likely from multiple etiologies.  She does \nhave tendinopathy of the cuff but no overt tearing.  She is very \ntender over the bicipital groove but also over the deltoid, \ninfraspinatus, along the medial border of the scapula with \nassociated trigger point/myofascial pain.  She reported her \nmuscles calming down after a landmark guided subacromial \ncorticosteroid injection with Dr. Clayton.... \nWe discussed the various options and ultimately decided to \nstart with corticosteroid injections to the long head of the \nbiceps tendon sheath and AC joint.  After obtaining consent, \nincluding the risk of tendon rupture after biceps tendon sheath \ninjection, injections were performed as below without issue.  If \nshe experiences no relief or only partial relief from today’s \ninjections then I think before considering surgery it [would] be \nworthwhile to do some trigger point injections/therapeutic \nneedling or consider sending her dry needling.... \nHistory of Present Illness:  43 y.o. female who presents for \nevaluation of left shoulder pain.  She reports anterior left \nshoulder pain which will radiate to her upper arm and some \nposterior shoulder pain as well.  This has been present for \nover 2 years and she associates it with starting after falling off \nof a barstool onto her left elbow.  She reports associated \n\nENGLEMAN - H404754  8\n  \n \n \nclicking and difficulty with motion.  She has pain with reaching \noverhead or posteriorly.  It loosened up her muscles for about \na week and she could feel the muscles release when she \nreceived the injection.... \nRadiographs of the left shoulder are unremarkable.   \nMRI of the right shoulder demonstrates tendinosis of the \nsupraspinatus tendon, degenerative changes of the AC joint, \nand a little bit of fluid in the long head of the biceps tendon \nsheath.   \n \n Dr. Greg Jones reported on May 29, 2024: \nMs. Engleman is a 43-year-old nurse.  She has worked in the \nICU as well as a flight nurse in the past.  She is now doing \ncirculating room work at the Washington Regional Hospital \nand in particular with respect to work when she is “pushing \ncarts or lifting patients” it exacerbates her left shoulder pain.  It \nis fairly constant at 4/10 but it can get up to 10/10 after she \nhas a busy work day.   \nSymptoms began 2-1/2 years ago.  She fell off a step ladder \ndoing some painting, landed directly on her elbow, grabbed it \nup into the shoulder longitudinally and has had symptoms \never since then.  She had two episodes when a dog jerked \nher shoulder.  I have looked at her carefully for instability but \ncertainly the stress that the description implies wrenched her \nshoulder and had worsening of symptoms and she states that \nshe is having increasing trouble “pushing events” when she is \nmoving patients out of the operating room as a part of her \nnormal circulating room duties. \nShe cannot sleep on it, it wakes her up at night on occasion.  \nShe has been seen and treated conservatively by Dr. \nZimmerman of Sports Medicine and Dr. Clayton, one of my \npartners.  Injections are made both into the subacromial \nspace that lasted about a week, a second injection was made \nwith an ultrasound-guided groove injection.  It really did not do \nmuch for her and because of those failures of anti-\ninflammatories time, injections and physical therapy, she \npresents for consideration of surgery.... \nI have reviewed the 4-view shoulder x-ray series from 03/26.  \nShe has a flat acromion, non-pointed coracoid and normal \nanatomy of the glenohumeral joint.  No evidence of arthritis.  \nShe has had impingement changes of the greater tuberosity \n\nENGLEMAN - H404754  9\n  \n \n \nand chronic AC arthropathy changes without overt spur \nformation but definitely sclerosis and cystic changes on the \nclavicular and the AC joint site.   \nThe MRI is likewise reviewed.  There is no evidence of full-\nthickness tear and the biceps tendon has minimal fluid along \nthe sheath.  She has some evidence of subacromial bursitis to \nmy evaluation of the exam.  There is no full-thickness rotator \ncuff tear.   \nShe has 2-1/2 years of pain.  She has positive examination of \nthe AC joint and with impingement maneuvers that had been \nalleviated albeit temporarily with injection.  I think the biceps is \nnot particularly involved nor is there instability.  Given the \nchronicity of symptoms and failure of extended conservative \nmeasures, an arthroscopic AC joint resection and subacromial \nbursectomy given the traumatic nature of the bursitis onset I \nthink are appropriate next steps in management.   \nShe is sick of it, it is bothering her badly and she wants to \nproceed in that direction.... \n \nDr. Jones’ pre-operative diagnosis on June 13, 2024 was “AC \narthropathy – posttraumatic, biceps tendinitis, chronic subacromial bursitis – \ntraumatic.”  Dr. Jones performed a procedure on August 26, 2024:  “1.  \nGlenohumeral arthroscopy with biceps tenotomy.  2.  AC resection/Mumford \nprocedure via anterior arthroscopic approach.  3.  Extended subacromial \nbursectomy.  No acromioplasty.  CA ligament sleeve release.”  The post-\noperative diagnosis was “1.  Subluxation of the biceps tendon with \nlongitudinal split and hypervascular tenosynovitis.  2.  AC meniscus \narthropathy with torn AC meniscal elements.  3.  Moderately severe \nsubacromial bursitis, rotator cuff fully intact.”   \nDr. Jones reported on June 13, 2024: \n\nENGLEMAN - H404754  10\n  \n \n \nMs. Engleman is a healthcare provider with recurrent and \nincreasing job limiting, life-limiting symptoms from her left \nshoulder since an injury in an incident where she had a fall \nfrom a vehicle and landed on her extended left arm, drove \nover shoulder via the elbow up and sprained her AC joint.  It \nhas been symptomatic ever since as she does certain \nmaneuvers in terms of lifting patients and moving things in her \njob performance.  It acutely exacerbates the pain and she has \na combination of 3 different findings that are very focused in \nterms of our exam.  The rotator cuff appears to be intact, but \nthe biceps tendon has gotten a great deal more symptomatic \nand on careful observation has both symptomatic Speed’s \nand Yergason’s test prior to surgery on exam and a marked \ntenderness to palpation along the bicipital groove.  She also \nhas positive impingement and bursitis, signs of crepitus and \nthe AC joint remains exquisitely uncomfortable to provocative \ncross-arm and rotatory maneuvers.   \nBased on these findings, 2 and a half years since the incident \nwithout improvement, it is felt that an arthroscopic evaluation \nis appropriate.  At this time by MRI and exam, it is felt the \nrotator cuff is intact, but I certainly think the biceps has risen \nto a level of pain generator participation that it needs to be \naddressed at the same setting.... \n \n Dr. Jones noted on July 17, 2024: \nMs. Engleman is a 43-year-old nurse, who works up at \nWashington Regional.  She is in the OR, heavy lifting.  She \nhad a fall at one point from a ladder.  In my operative note, I \nhave said it was from a vehicular accident, but was from a fall \nfrom a ladder, but there were multiple other episodes were \nactually documented, one with a pop in her shoulder and she \nhad been sent to physical therapy and it had continued \nsymptoms with the biceps tendon even back in that \ntimeframe.   \nShe is an operating room nurse as with all of our patient’s, \nthey are all more frequent to 300 pounds or plus and moving \nthem, putting them on and off a bed, pushing the gurneys, \netc., has become an increasingly challenging situation for \nalmost as the particular one, who has had shoulder injury and \nsurgery.   \n\nENGLEMAN - H404754  11\n  \n \n \nI am a little bit confused and that this appears to have had \nclearly a work component.  A diagnosis is made at work that \nprompted the use of physical therapy for that purpose, I think \nconfirming this was; \n1. Reported. \n2. Recognized. \n3. In my opinion, greater than 50% contribution to the \nproblems that exist, I think she needs to pursue this in \nappropriate fashion and I have recommended same.   \nToday’s x-rays, copy as report demonstrate satisfactory AC \njoint resection or flat acromion on the outlet view, no \ndystrophic calcification or calcific tendinitis.  There are no \nfractures.  Copy that as a 2-view left shoulder x-ray report.... \nTakes at least 3 months to get over her surgery such as this.  \nIf she has to return to “full unrestricted lifting activity,” she is \nnot ready to do that and I am going to ask that she see me \nback in 2 months and we will consider return at that juncture \ndepending on her surgery was 06/13/2024 on left shoulder; \nAC resection, biceps tenotomy, and subacromial bursectomy. \n \n A pre-hearing order was filed on September 27, 2024.  The claimant \ncontended, “She is entitled to temporary total disability benefits from June \n13, 2024 to a date yet to be determined and reasonably necessary medical \ntreatment.  The claimant contends that her attorney is entitled to an \nappropriate attorney’s fee.”   \n The parties stipulated that the respondents “have controverted the \nclaim in its entirety.”  The respondents contended, “Claimant’s bilateral \nshoulder injuries were initially accepted as a medical-only claim, but the \nclaim has now been denied in its entirety due to a lack of objective findings.  \nAdditionally, respondents contend that claimant has pre-existing issues with \nher shoulders and possibly underwent new injuries after June 2, 2023.”   \n\nENGLEMAN - H404754  12\n  \n \n \n The parties agreed to litigate the following issues: \n1. Whether the claimant sustained a compensable injury on \nJune 2, 2023, specifically bilateral shoulder injuries.   \n2. If compensable, whether the claimant is entitled to \ntemporary total disability benefits, and reasonably \nnecessary medical treatment. \n3. Fees for legal services.  The parties reserve all other \nissues.   \n \nDr. Jones corresponded with the claimant’s attorney on or about \nOctober 21, 2024: \nI write in response to your letter dated 10/14/2024 regarding \nyour client and my patient, Amanda Engleman.   \nAs you are aware from the medical records, I had first \nopportunity to see her 05/29/2024 and will detail those \nfindings. \nI have also had opportunity to go through medical records \nfrom Mercy Convenient Care from conservative care, \nOccupational Health from her work-related injury, on June 2, \n2023 and more recent visits in our office with Dr. Zimmerman \nand Dr. Clayton with respect to her bilateral shoulder \ndifficulties.   \nAs is outlined in my office note from 05/29/2024, the principal \nreason in which she had presented to me with an increased \nand life-limiting level of pain that had failed to respond to \nconservative care, left worse than right shoulder was the \ninjury sustained and subsequent pushing “patients” after June \n2, 2023, work injury.   \nI am well aware that she had 2 other incidents, one of fall with \na contusion that subsequently healed without problem.  \nSecond, a dog moving incident on a couple of occasions, but \nnothing that rose to the level of the nature of symptomatology \nwith which she presented to me.   \nHer history and physical examination at that time were \nconsistent with injuries from a mechanical nature and were \nconsistent with the pattern of injury that she had described. \nIt was because she had received optimum opportunity for \nconservative care including extended physical therapy with a \nconservative care, occupation health department or positions \n\nENGLEMAN - H404754  13\n  \n \n \nand as detailed notes revealed that was considered a work-\nrelated injury and persistent in its character and although did \nnot rise to the level of “needing surgery” had remained of the \nprincipal diagnosis when she completed care under their \nauspices.   \nWhen she saw me her symptoms had continued to worsen \nand despite injections and extended physical therapy and \nobservation, they have become life-limiting.   \nIt is my opinion that the nature of the injury sustained in the \nwork incident described and detailed historically both by her \nand in the medical record previously making clear to me that \nwithin a reasonable medical degree of certainty that June 2, \n2023 incident is more than 50% the cause of the injury, \nsubsequent symptomatology and findings that led me to \nrecommend the surgical procedure undertaken 06/13/2024.   \nThere had been some question I gather as to whether or not a \nvehicular accident, had been involved at any time with this \ninjury and I do not recall nor do I see documentation of that \nbeing the case.   \nHaving reviewed all these records, I remain convinced that \nwith medical certainty, greater than 50% of the cause of her \nneed for surgery on the left shoulder was due to the work-\nrelated incident.   \n \n Dr. Jones noted on December 4, 2024: \nMs. Engleman is seen in followup regarding her left shoulder.  \nShe has been plagued since the incident when she caught the \n300 pounds plus person in her role as a circulating nurse, had \nbilateral AC sprain, she had continued difficulties.  We had \ntaken her to surgery on the left shoulder, did biceps release, \nAC resection arthroscopically and while the biceps relieved \nher symptoms remarkably better.  She is still having some \ntenderness over the top side of her AC joint and provocative \ntesting increased anteroposterior plane, not superior, but \nanteroposterior.   \nI think this is a setting in which we got traumatic AC joint injury \nthat all looked better.  Since the AC resection has enough \nresidual instability, but it is limiting her ability to return to her \nprevious work and in this instance, I would recommend an \nopen deltotrapezial fascial repair.  90% of people who are \nsuccessful in alleviating the symptoms that she is \n\nENGLEMAN - H404754  14\n  \n \n \nexperiencing and displaying on both my examination and \nhistorical evidence provided. \nShe has ongoing problems with severely injured right shoulder \nin terms of the AC joint flexibility and pain with provocative \ncross-arm rotatory range of motion and if and when we get to \nthe point of taking care of the right shoulder, I would just do it \nas open AC resection given the display that she has made \nwith returns to the bilateral stretching injury and catching the \npatient is likely to have the same sort of AC sprain on the right \nas we have seen on the left.   \nIn a nutshell, she has residual AC joint resection site pain, it is \nrelated to anteroposterior instability and deltotrapezial fascial \nrepair would be the next best step in management.  Rationale \nfor same, necessary perioperative activity modification, rehab \nparticipation are detailed.  She voiced understanding and we \nwill proceed in that direction.  We will hold off the MMI \ndeclaration with respect to her work injury made previously \nuntil that surgery is completed and I might again note that the \nright shoulder was also injured in the same work injury at the \nhospital as described previously.   \nBilateral shoulder x-rays are made today and they \ndemonstrate subtle superior displacement of the right distal \nclavicle compared to the acromion.  The left shoulder has a \nwide AC resection, flat acromion.  No glenohumeral arthritis or \nevidence of fracture or destructive lesion with respect to the \nleft, 4-view series.  The right 4 view series demonstrates mild-\nto-moderate AC arthropathy with slight dorsal displacement.  \nNo glenohumeral fracture displacement and no calcifications \nin the rotator cuff insertion on either shoulder.  Copy that as a \nbilateral shoulder 4 view series.   \nWe will see her when she comes in for the left shoulder open \ndeltotrapezial fascial repair at the AC joint residual instability.   \n \n After a hearing, an administrative law judge found that the claimant \nproved she sustained a compensable injury.  The administrative law judge \nawarded medical treatment and temporary total disability benefits.  The \nrespondents appeal to the Full Commission. \nII.  ADJUDICATION \n\nENGLEMAN - H404754  15\n  \n \n \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012) provides, in pertinent part: \n(A)  “Compensable injury” means:   \n(i)  An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in \nthe course of employment and which requires \nmedical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific \nincident and is identifiable by time and place of \noccurrence[.]   \n \nA compensable injury must be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).  The requirement that a compensable injury be established by \nmedical evidence supported by objective findings applies only to the \nexistence and extent of the injury.  Ford v. Chemipulp Process, Inc., 63 Ark. \nApp. 260, 977 S.W.2d 5 (1998), citing Stephens Truck Lines v. Millican, 58 \nArk. App. 275, 950 S.W.2d 472 (1997).     \nThe employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n\nENGLEMAN - H404754  16\n  \n \n \nAn administrative law judge found in the present matter, “2.  \nClaimant has met her burden of proving that she suffered a compensable \nbilateral shoulder injury on June 2, 2023, and is entitled to reasonable and \nnecessary medical treatment for that injury as recommended by Dr. Greg \nJones.”  The Full Commission does not affirm this finding.  We find that the \nclaimant did not prove by a preponderance of the evidence that she \nsustained a compensable injury to her left shoulder or right shoulder.   \nThe claimant’s testimony indicated that she first injured her left \nshoulder in 2022 after she fell from a chair at home.  The claimant sought \nmedical treatment for this nonwork-related injury in February 2022.  The \nclaimant testified that she became employed as an Operating Room \nCirculator for the respondents in November 2022.  The parties stipulated \nthat the employment relationship existed on June 2, 2023.  The claimant \ntestified that she injured her left and right shoulders that day while \npositioned underneath a table, holding a hospital patient.  The claimant \nsigned a Form AR-N, EMPLOYEE’S NOTICE OF INJURY, on June 2, \n2023.  The claimant reported that she injured “both shoulders” while \n“holding heavy weight of patient to prevent injury.”   \nThe Full Commission finds that the claimant did not establish a \ncompensable injury by medical evidence supported by objective findings.  \nThe claimant treated at Conservative Care Occupational Health on June 2, \n\nENGLEMAN - H404754  17\n  \n \n \n2023.  No objective findings were shown during this treatment.  No fracture \nwas seen and no injury was demonstrated after x-rays of the claimant’s left \nand right shoulders.  An APRN diagnosed “left shoulder pain” and “right \nshoulder pain” but did not report any objective medical findings.  Dr. \nBerestnev returned the claimant to regular work duty on June 30, 2023.  \nThe record does not corroborate the claimant’s testimony that Dr. \nBerestnev refused to provide additional diagnostic testing.       \nThe Commission is not required to believe the testimony of the \nclaimant or any other witness, but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Whaley \nv. Hardee’s, 51 Ark. App. 166, 912 S.W.2d 14 (1995).  In the present \nmatter, the Full Commission is constrained to find that the claimant was not \na credible witness.  The claimant sought treatment with Dr. Clayton on \nMarch 26, 2024.  The claimant informed Dr. Clayton that she had injured \nher left shoulder two years earlier in a dog-related incident.  Dr. Clayton \nnoted on April 16, 2024 that the claimant’s left shoulder condition “was \nactually from a fall loading her shoulder directly though there was also an \nincident involving repositioning a dog but that was not actually the inciting \nevent.”  Dr. Clayton also noted, “Plain films of the left shoulder are \nunremarkable without fracture or dislocation.”  Dr. Clayton reported on May \n14, 2024 that a left shoulder MRI showed “degenerative changes at the AC \n\nENGLEMAN - H404754  18\n  \n \n \njoint.”  The evidence does not demonstrate that these “degenerative \nchanges” were causally related to the June 2, 2023 incident.   \nDr. Zimmerman reported on May 17, 2024 that the claimant was \nsuffering from “uncontrolled left shoulder pain likely from multiple etiologies \n[emphasis supplied].”  Dr. Zimmerman reported that the claimant had \ninjured her left shoulder two years earlier “after falling off of a barstool onto \nher left elbow.”  Dr. Zimmerman did not report an incident occurring June 2, \n2023.  The claimant began treating with Dr. Jones on May 29, 2024.  Dr. \nJones noted, “She fell off a step ladder doing some painting, landed directly \non her elbow, grabbed it up into the shoulder longitudinally and has had \nsymptoms ever since then.”  Dr. Jones also reported that “a dog jerked her \nshoulder.”  Dr. Jones did not report an incident occurring June 2, 2023.  Dr. \nJones stated on June 13, 2024 that the claimant had injured her left \nshoulder after “a fall from a vehicle.”  Dr. Jones noted on July 17, 2024 that \nthere had been “multiple other episodes” involving the claimant’s left \nshoulder.  Dr. Jones finally reported on October 21, 2024 that, in his \nopinion, “within a reasonable degree of medical certainty that [the] June 2, \n2023 incident is more than 50% the cause of the injury, subsequent \nsymptomatology and findings that led me to recommend the surgical \nprocedure undertaken 06/13/2024.”   \n\nENGLEMAN - H404754  19\n  \n \n \nIt is within the Commission’s province to weigh all of the medical \nevidence and to determine what is most credible.  Minnesota Mining & Mfg. \nv. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present matter, the \nFull Commission finds that Dr. Jones’ October 21, 2024 causation opinion is \nnot supported by the record and is entitled to minimal evidentiary weight.  \nNor does the record support Dr. Jones’ conclusion on December 4, 2024 \nthat the claimant sustained a “bilateral AC sprain” on June 2, 2023. \nThe Full Commission finds in the present matter that the claimant \nwas not a credible witness.  The claimant reported several alleged causes \nfor her bilateral shoulder pain, including a fall at home and an alleged injury \nrelated to handling a dog.  Dr. Jones reported “multiple other episodes” \nallegedly causing injury to the claimant’s shoulders.  The Full Commission \nrecognizes that an APRN diagnosed “Left shoulder pain” and “Right \nshoulder pain\" following the specific incident on June 2, 2023.  \nNevertheless, we find that the claimant did not prove that the June 2, 2023 \nincident caused internal or external physical harm to the left shoulder or \nright shoulder.  Nor did the claimant establish a compensable injury by \nmedical evidence supported by objective findings.  The evidence does not \ndemonstrate that the subluxation of the biceps tendon or “torn AC meniscal \nelements” shown during surgery on June 13, 2024 were causally related to \nthe June 2, 2023 incident.  See Ford, supra.  Additionally, there is no \n\nENGLEMAN - H404754  20\n  \n \n \nprobative evidence demonstrating that the purported “subtle superior \ndisplacement of the right distal clavicle” described by Dr. Jones on \nDecember 4, 2024 was causally related to the June 2, 2023 specific \nincident. \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove she sustained an accidental injury causing \ninternal or external physical harm to her left shoulder or right shoulder.  In \naddition, we find that the claimant did not prove she established a \ncompensable injury to her left shoulder or right shoulder by medical \nevidence supported by objective findings.  We therefore reverse the \nadministrative law judge’s finding that the claimant proved she “suffered a \ncompensable bilateral shoulder injury on June 2, 2023[.]”  The respondents \nare not liable for medical treatment provided by Dr. Jones, and this claim is \nrespectfully denied and dismissed. \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \n \nCommissioner Willhite dissents. \n \n \n\nENGLEMAN - H404754  21\n  \n \n \nDISSENTING OPINION \n \nThe Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant had proved by a preponderance of the evidence that she \nsuffered a compensable bilateral shoulder injury on June 2, 2023, and was \nentitled to reasonable and necessary medical treatment for that injury as \nrecommended by Dr. Greg Jones.  Further, the ALJ found that the Claimant \nhad met her burden of proof that she is entitled to temporary total disability \nfrom June 13, 2024, to a date yet to be determined.  The Respondent \nappeals this decision.  After conducting a thorough review of the record, I \nfind that the Claimant proved she sustained a compensable bilateral \nshoulder injury, and is entitled to temporary total disability from June 13, \n2024, to a date yet to be determined.  \n1. The Claimant has proven by a preponderance of the evidence that she \nsuffered compensable bilateral shoulder injuries on June 2, 2023, and \nis entitled to reasonable and necessary medical treatment for those \ninjuries as recommended by Dr. Greg Jones. \n \nTo establish a compensable injury by a preponderance of the evidence \nthe Claimant must prove: (1) an injury arising out of and in the course of \nemployment; (2) that the injury caused internal or external harm to the body \nwhich required medical services or resulted in disability or death; (3) medical \nevidence supported by objective findings, as defined in Ark. Code Ann. §11-\n9-102(16), establishing the injury; and (4) that the injury was caused by a \n\nENGLEMAN - H404754  22\n  \n \n \nspecific and identifiable time and place of occurrence.  A compensable injury \nmust be established by medical evidence supported by objective findings and \nmedical opinions addressing compensability must be stated within a degree \nof medical certainty.  Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d \n560 (2002).  \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. § 11-9-508(a).  \nReasonable and necessary medical services may include those necessary \nto accurately diagnose the nature and extent of the compensable injury; to \nreduce or alleviate symptoms resulting from the compensable injury; or to \nmaintain the level of healing achieved; or to prevent further deterioration of \nthe damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).  \nOn June 2, 2023, Claimant was working in her capacity as an \nOperating Room Circulator for Respondent when a patient started slipping \noff of an operating table.  The Claimant placed herself under the operating \ntable and began pushing it up to keep the patient from sliding off of the \ntable.  The Claimant remained in this position pushing up for several \nminutes and the Claimant felt her left shoulder pop.  After the incident, the \nClaimant also began suffering from right shoulder pain.  \n\nENGLEMAN - H404754  23\n  \n \n \n Claimant was seen by Amanda Bell, APRN on June 2, 2023.  Bell \nnoted in relevant portions of the medical report as follows:  \nPatient states she was repositioning a large client \non the surgical table when she felt a pop and \nsharp pain in her left shoulder. She had to hold \nthe client with both arms for an extended period \nof time and now her right shoulder is hurting as \nwell.  \n[...] \nPatient reports having general aches and pains \nto  her  shoulders  in  the  past,  last  episode \napproximately 1 year ago, but has never had to \nhave formal treatment for either shoulder before \nthis reported injury.  Today’s x-rays are negative \nfor acute abnormalities. \nFurther, Bell restricted the Claimant’s work activities and noted that “Medical \ncausation:    The  cause  of  this  problem  appears  to  be  related  to  work \nactivities.”  \n On June 9, 2023, Claimant was seen by Dr. Konstantin Berestnev.  At \nthis visit, Dr. Berestnev noted:  \nEmployer  Description  of  Accident:  Employer \nstates patient was trying to reposition a patient on \nthe surgery table and injured both shoulders.  \n[...] \nMusculoskeletal:  Positive  for  joint  pain,  joint \nswelling and limited motion.  \n[...]  \nMedical causation:  The cause of this problem \nappears to be related to work activities.  \nClaimant was subsequently given an injection of methylprednisone and \nreferred to physical therapy by Dr. Berestnev as Claimant was symptomatic \nbilaterally in her shoulders as a result of the June 2, 2023, work accident. \n\nENGLEMAN - H404754  24\n  \n \n \nClaimant was also given the work restrictions of “no work above the \nshoulders.”  On June 30, 2023, Claimant followed up with Dr. Berestnev \nafter completing four physical therapy sessions and reported that her \nbilateral shoulder pain “is getting tolerable.”  At that visit, Dr. Berestnev \nreleased Claimant to work at regular duty.  On July 21, 2023, Claimant \nfollowed up with Ceth Dawson, PA, who found that the Claimant had \nbilateral impingement to her shoulders as a result of the June 2, 2023, work \naccident.  The Claimant was seen again on August 8, 2023, at which time \nshe was given a home exercise plan and instructions to take over the \ncounter medication for her bilateral shoulder injuries.  \n On March 26, 2024, Claimant was seen by Dr. J. Clayton.  At this visit, \nthe Claimant’s medical history was taken in regard to her left shoulder pain \nas follows:  \nHistory:  This  patient  has  had  pain  in  her  left \nshoulder ever since she hurt it about two years \nago when she was moving a dog into another \nseat  of  the  car.  She  is  already  done  physical \ntherapy which was done this past June through \nAugust she has been on ibuprofen she has not \nhad any injections or used prescription NSAIDs.  \nThis history was corrected by the Claimant at her next visit with Dr. J. Clayton \non April 16, 2024 as follows:  \nHistory: This patient had an injury to her left \nshoulder which was actually from a fall loading \nher shoulder directly though there was also an \nincident involving repositioning a dog but that \nwas not actually the inciting event.  Short of it is \nthis was a trauma to her shoulder.  She has \n\nENGLEMAN - H404754  25\n  \n \n \nalready done injections formal physical therapy \nand chiropractics and continues to have pain in \nher shoulder that is severe enough that it wakes \nher up at night.  \nDr. Clayton then referred the Claimant to his medical partner, Dr. T. \nZimmerman for consideration of a subacromial decompression and distal \nclavicle excision.  \n On May 17, 2024, Claimant was seen by Dr. T. Zimmerman.  Dr. \nZimmerman reviewed Claimant’s MRI and noted “right shoulder \ndemonstrates tendinosis of the supraspinatus tendon, degenerative \nchanges of the AC joint, and a little bit of fluid in the long head of the biceps \ntendon sheath.”  Dr. Zimmerman concurred with Dr. Clayton that a \nsubacromial decompression and distal clavicle excision would be \nappropriate along with trigger point injections and therapeutic needling.  Dr. \nZimmerman then referred the Claimant to Dr. G. Jones for analysis of \nClaimant’s bilateral shoulder injury.  \n Claimant was seen by Dr. Jones on May 29, 2024.  Dr. Jones provided \na  complete  narrative  summary  as  to  the  Claimant’s  bilateral  shoulder \nsymptomology:  \nSymptoms began 2-1/2 years ago. She fell off a \nstep ladder doing some painting, landed directly \non  her  elbow,  grabbed  it  up  into  the  shoulder \nlongitudinally and has had symptoms ever since \nthen.  She had two episodes when a dog jerked \nher shoulder.  I have looked at her carefully for \ninstability  but  certainly  the  stress  that  the \ndescription implies wrenched her shoulder and \nhad worsening symptoms and she states that she \n\nENGLEMAN - H404754  26\n  \n \n \nis  having  increasing  trouble  “pushing  events” \nwhen she is moving patients out of the operating \nroom as a part of her normal circulating room \nduties.  \n Dr. Jones then reviewed the Claimant’s imaging and found:  \nI have reviewed the 4-view shoulder x-ray series \nfrom 03/26.  She has a flat acromion non-\npointed coracold and normal anatomy of the \nglenohumeral joint.  No evidence of arthritis.  \nShe has had impingement changes of the \ngreater tuberosity and chronic AC arthropathy \nchanges without over spur formation but \ndefinitely sclerosis and cystic changes on the \nclavicular and AC joint site.  \nThe  MRI  is  likewise  reviewed.  There  is  no \nevidence of full-thickness cuff tear and the biceps \ntendon has minimal fluid along the sheath.  She \nhas some evidence of subacromial bursitis to my \nevaluation of the exam.  There is no full-thickness \nrotator cuff tear.  \nDr. Jones then recommended the Claimant for a left shoulder arthroscopic \nAC resection, and subacromial bursectomy surgery and provided that these \nsurgeries were appropriate due to the “traumatic nature of the bursitis onset.” \nThis surgery was performed on June 13, 2024.  The operative report showed \nevidence  of  “dense  hypertrophic  bursitis”  that  was  “clearly  mechanically \nimpinging.”  As a result, Dr. Jones completed an arthroscopy with tenotomy, \nAC resection and a bursectomy.  \n The Claimant’s post-operative appointment with Dr. Jones was on July \n17, 2024.  In his note Dr. Jones stated:  \nMs. Engleman is a 43-year-old nurse, who works \nup at Washington Regional. She is in the OR, \nheavy lifting. She had a fall at one point from a \nladder.  In my operative note, I have said it was \nfrom a vehicular accident but was from a fall from \n\nENGLEMAN - H404754  27\n  \n \n \na ladder, but there were multiple other episodes \n[that] were actually documented, one with a pop \nin her shoulder and she had been sent to physical \ntherapy and it had continued symptoms with the \nbiceps tendon even back in that timeframe.  \nShe is an operating room nurse as with all of our \npatients, they are all more frequent to 300 pounds \nor plus and moving them, putting them on and off \na bed, pushing the gurneys, etc., has become an \nincreasingly challenging situation for almost as \nthe particular one, who has had shoulder injury \nand surgery.  \nI am a little bit confused [in] that this appears to \nhave had clearly a work component.  A diagnosis \nis made at work that prompted the use of physical \ntherapy for that purpose, I think confirming this \nwas;  \n1. Reported \n2. Recognized \n3. In my opinion, greater than 50% contribution \nto the problems that exist, I think she needs to \npursue this in appropriate fashion and I have \nrecommended same.  \n \nDr. Jones then took the Claimant off of work until her next post-operative \nappointment in October of 2024.  \nOn August 28, 2024, Claimant followed up with Dr. Jones for a wound \ncheck after her recent surgery. In this note Dr. Jones stated:  \nI have made clear my thoughts as to it being \nreported, recognized and a greater than a 50% \ncontribution to the problems that required \ntreatment and now off-work status.  \nDr. Jones also stated that he was concerned as Claimant was so “anxious to \nget back to work” she is really “pressuring her shoulder in terms of her range \nof  motion  and  recovery  and  even  early  strengthening  and  basically  her \nshoulder is very inflamed with bursitis at present.”  \n\nENGLEMAN - H404754  28\n  \n \n \n At Claimant’s follow-up appointment on October 2, 2024, Dr. Jones \ncontinued  Claimant’s  off-work  status  as  a  result  of  her  recent  surgery, \nspecifically noting Claimant’s functional limitations in terms of lifting at most \n5-10 pounds.  These work restrictions remained in place for at least two \nmonths following the appointment.  \n Dr. Jones wrote a letter on Claimant’s behalf on October 14, 2024, in \nwhich he stated:  \nI am well aware that she had two other incidents, \nonce of fall with a contusion that subsequently \nhealed without problem. Second, a dog moving \nincident on a couple of occasions, but nothing \nthat  rose  to  the  level  of  the  nature  of \nsymptomatology with which she presented to me.  \nHer history and physical examination at that time \nwere consistent with injuries from a mechanical \nnature and were consistent with the pattern of \ninjury that she had described.  \n(...) \nIt  is  my  opinion  that  the  nature  of  the  injury \nsustained  in  the  work  incident  described  and \ndetailed historically both by her and in the medical \nrecord previously making clear to me that within \na  reasonable  degree  of  certainty  that  June  2, \n2023, incident is more than 50% the cause of the \ninjury, subsequent symptomatology and findings \nthat led me to recommend the surgical procedure \nundertaken on June 13, 2024. \nRegardless of Claimant’s prior incidents with either shoulder, it is clear \nfrom the record that she was not seeking medical care and was able to work \non a full-time basis prior to the work accident on June 2, 2023.  Dr. Jones \nfully evaluated the Claimant’s history in the medical records and provided a \n\nENGLEMAN - H404754  29\n  \n \n \ncredible analysis of the causation of the Claimant’s shoulder injuries, and \nneed for medical care, including surgery.  \nAn employer takes the employee as he finds him, and employment \ncircumstances which aggravate pre-existing conditions are compensable. \nHeritage Baptist Temple v. Robinson, 82 Ark. App. 460, 464, 120 S.W.3d \n150, 152 (2003).  An aggravation of a pre-existing, non-compensable \ncondition by a compensable injury is, itself, compensable.  Williams v. L&W \nJanitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004).  \nThe lack of significant medical care prior to the work accident, and the \nClaimant’s continued ability to work up to the work accident support Dr. \nJones’s  statements  on  these  issues.  The  medical  notes  prior  to  the \nClaimant’s left shoulder surgery reveal the traumatic nature of the injury to \nthe bursa, and the operative report confirms the treatment necessary to \nalleviate  the  impingement  resulting  from  this  injury.  This  finding  clearly \ndemonstrates an objective injury that Dr. Jones attributes with a reasonable \ndegree of medical certainty to the Claimant’s work accident.  The Claimant’s \nright shoulder became symptomatic shortly after her work accident and the \ndiagnostic testing revealed supraspinatus tendinosis, degenerative changes \nof the AC joint and fluid in the tendon sheath, as well as a subtle superior \ndisplacement  of  the  right  distal  clavicle.  These  findings  demonstrate  an \nobjective injury to the right shoulder.  As noted in the medical records, the \n\nENGLEMAN - H404754  30\n  \n \n \nClaimant also had at least two other incidents which may have affected her \nshoulders.  However, the evidence shows that neither of those incidents \nresulted  in  significant  treatment  of  her  shoulders  or  inhibited  her  from \nworking.  As previously stated, aggravation of a pre-existing condition can \nresult in a compensable injury.  Therefore, based upon the credible evidence \nin the record, I find that the objective problems in the Claimant’s shoulders \nidentified above were either caused by or made symptomatic, or both, by her \nwork accident on June 2, 2023, and that she suffered a compensable injury \nto both of her shoulders as a result of this work accident.  The Claimant is \nentitled to reasonable and necessary medical treatment for her compensable \ninjuries including the treatment recommended by Dr. Jones.  \n2. The Claimant has met her burden of proof by a preponderance of the \nevidence that she is entitled to temporary total disability from June 13, \n2024, to a date yet to be determined.  \n \nTemporary total disability benefits are appropriate where the employee \nremains in the healing period and is totally incapacitated from earning wages. \nArk. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  \nOn June 13, 2024, Claimant underwent a glenohumeral arthroscopy \nwith biceps tenotomy, AC resection and an extended subacromial \nbursectomy with Dr. Jones.  Claimant had a post-operative appointment \nwith Dr. Jones on July 17, 2024.  At this time, Dr. Jones stated:  \n\nENGLEMAN - H404754  31\n  \n \n \nTakes at least 3 months to get over her surgery \nsuch as this.  If she has to return to “full \nunrestricted lifting activity,” she is not ready to do \nthat and I am going to ask that she see me back \nin 2 months and we will consider return at that \njuncture depending on her surgery was \n06/13/2024 on left shoulder, AC resection, \nbiceps tenotomy, and subacromial bursectomy.  \nDr. Jones then wrote a letter specifically stating that the Claimant is “unable \nto work until seen in 2 months.” Claimant followed up with Dr. Jones on \nOctober 2, 2024.  As to Claimant’s work status Dr. Jones stated:  \nShe has functional limitations in terms of lifting at \nmost 5- to 10-pound weight limit.  Unfortunately, \nbecause  of  the  nursing  activities  in  previous \nposition, there is a lot of lifting requirements and \nthe  lesser  sedentary  one-armed  position  at  5-\npound weight duty status, she is not yet ready for \nwork.  \nDr. Jones concluded this visit by stating he will see the Claimant in two \nmonths to assess activity increase and potential return to work.  The last \nmedical record in evidence shows that the Claimant was seen by Dr. Jones \non December 4, 2024.  At that visit, Dr. Jones specifically noted that he is \nholding off on a maximum medical improvement designation as the Claimant \nhad residual instability since the June 13, 2024, surgery.  \nTherefore, based upon these limitations by the treating physician, I \nfind that the Claimant has remained within her healing period and suffers a \ntotal incapacity to earn wages.  Thus, making her entitled to temporary total \ndisability benefits from June 13, 2024, to a date yet to be determined.  \n                \n        \n\nENGLEMAN - H404754  32\n  \n \n \n            \n    ___________________________________ \n       M. SCOTT WILLHITE, Commissioner","textLength":53197,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H404754 AMANDA ENGLEMAN, EMPLOYEE CLAIMANT WASHINGTON REGIONAL MEDICAL CENTER, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 25, 2025","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["shoulder","back","fracture","rotator cuff","sprain"],"fetchedAt":"2026-05-19T22:29:44.044Z"},{"id":"full_commission-H109939-2025-09-24","awccNumber":"H109939","decisionDate":"2025-09-24","decisionYear":2025,"opinionType":"full_commission","claimantName":"Wendy Peacock","employerName":"Conway Regional Medical Center","title":"PEACOCK VS. CONWAY REGIONAL MEDICAL CENTER AWCC# H109939 September 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Peacock_Wendy_H109939_20250924.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Peacock_Wendy_H109939_20250924.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO. H109939 \n \nWENDY PEACOCK, \nEMPLOYEE \n \nCLAIMANT \nCONWAY REGIONAL MEDICAL CENTER,  \nEMPLOYER \n \nRESPONDENT \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 24, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE DANIEL E. WREN, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nMay 27, 2025.  The administrative law judge found that the claimant proved \nshe was entitled to additional medical treatment.  The Full Commission \nfinds that the claimant proved she was entitled to additional medical \ntreatment as recommended by Dr. Baskin.       \nI. HISTORY \n Wendy Peacock, now age 52, testified that she had previously been \nemployed with the respondents, Conway Regional Health System, for \napproximately 13 years.  The claimant testified that her employment \n\nPEACOCK - H109939  2\n  \n \n \nposition was “Direct Patient Care.”  The parties stipulated that the \nemployment relationship existed on March 1, 2021.  The claimant testified \non direct examination: \n  Q.  On March 1\nst\n, 2021, was there an incident with a bed? \n  A.  Yes. \n  Q.  Tell me what happened. \nA.  I was taking the bed to – from the room to the OR, and \nwhen I pushed it out in the hall, I had to get to the other end to \nturn it, and when I did, the wheel ran over my foot, like, right \nacross where my – I call them my toe knuckles, but it – and it \nrolled over the top of it and crushed it.   \n \n The parties stipulated that the claimant “sustained compensable \ninjuries to her left foot” on March 1, 2021.  According to the record, the \nclaimant treated with Dr. Gil E. Johnson on March 3, 2021: \nWendy works in labor and delivery at the hospital – CRMC.  \nShe was moving a bed and rolled over the top of her left foot.  \nSince that time it occurred on 3/1/21 she’s complained of soft \ntissue swelling and pain in the left foot.  It affects her gait.  \nShe reports no prior injury to this foot.... \nEvaluation of the left foot reveals noted soft tissue swelling \nand pain to palpate the distal and dorsal aspect of the foot.  \nThis is mostly over the distal metatarsal heads one – \nfour....Mild ecchymosis is present....Impression crush injury \nof soft tissue swelling of left foot, approximately 48 hours out \nfrom injury.   \n \n Dr. Johnson planned diagnostic testing and conservative treatment. \n The parties stipulated that the respondents “accepted the claim and \npaid benefits.”     \n An MRI of the claimant’s left foot was taken on March 23, 2021, with \nthe following impression: \n\nPEACOCK - H109939  3\n  \n \n \n1. Strain of the lateral head of the flexor hallucis brevis and \nadductor hallucis muscles with partial tear of the flexor \nhallucis brevis tendon at the attachment to the lateral \nsesamoid.   \n \n Dr. James Head performed surgery on December 14, 2021: \n1. Excision of fibular sesamoid to treat nonunited fibular \nsesamoid fracture.   \n2. Resection of a segment of a superficial peroneal nerve. \n3. Resection of a segment of the deep peroneal nerve with \ntransplantation of the nerve into the first metatarsal bone. \n4. Closed treatment of calcaneal stress fracture.   \n \nThe pre- and post-operative diagnosis was “1.  Left painful nonunited \nfibular sesamoid fracture.  2.  Painful neuroma to the deep peroneal and \npossibly superficial peroneal nerve to the dorsum of the forefoot.  3.  \nCalcaneal stress fracture.” \nThe claimant testified that the condition of her foot worsened \nfollowing surgery by Dr. Head.  Dr. Carlos Roman subsequently ordered a \nNuclear Medicine Three Phase Bone Scan, which was performed on April \n28, 2022 with the following impression: \nThere is no scintigraphic evidence of complex regional pain \nsyndrome.  Degenerative type activity along the bilateral first \nmetatarsophalangeal joints greater on the left than the right.   \n \n Dr. Roman noted on July 12, 2022: \nThe patient is a 49-year-old female.  She is a Workers’ \nCompensation patient.  She is a healthcare technician.  She \nworked for Labor and Delivery at Conway Regional when her \nfoot was run over by a hospital cart on March 1, 2021.  She \nhad a sesamoid fracture and ultimately underwent surgery on \nher left foot by Dr. Head for fibular sesamoid resection and \n\nPEACOCK - H109939  4\n  \n \n \nsuperficial peroneal nerve and tendon resection with \nreimplantation of the nerve.   \nShe continued to have pain in the left foot and was diagnosed \nwith calcaneal stress fracture.  She obtained a second opinion \nfrom Dr. Burks in April and was diagnosed with possible \nCRPS of the left lower extremity.  He suggested no further \nsurgeries until further workup in that regard.  Bone scan \nshowed no evidence of CRPS.  Her clinical exam does not \nmeet criteria for CRPS.  I referred her back to Dr. Burks and \nshe is now scheduled for surgical intervention.  I will follow her \nabout three to four weeks after surgery.... \n \n Dr. Roman diagnosed “1.  Left foot pain.  2.  Arthrosis of the left \ncuneiform bones of the foot.  3.  Previous fracture of the metatarsal bone.” \n Dr. Jesse Burks performed surgery on August 12, 2022:  “1.  \nArthrodesis tarsometatarsal joint, left.  2.  Intermediate lateral cuneiform \narthrodesis, left.  3.  Peroneus brevis tendon tear, left.”  The pre- and post-\noperative diagnosis was “1.  Arthrosis, second tarsometatarsal joint.  2.  \nArthrosis, lateral intermediate cuneiform joint.  3.  Peroneus brevis tendon \ntear, left.” \n The claimant testified that she did not “respond well” to surgery \nperformed by Dr. Burks. \n An x-ray of the claimant’s lumbar spine was taken on November 21, \n2022 with the following findings and impression: \nVertebral body heights are preserved.  Alignment is within \nnormal limits.  There is mild intervertebral disc height loss \nnoted at L4-L5 and L5-S1.  Mild facet arthropathy most \npronounced in the lower lumbar spine.  Overall, mild \ndegenerative changes, most pronounced in the lower lumbar \nspine.   \n\nPEACOCK - H109939  5\n  \n \n \n \n Dr. Billy McBay reported in part on December 1, 2022: \nShe comes in today to discuss her back pain and left foot.  \nShe has a history of left foot injury that is being evaluated by \nWorker’s Compensation.  She states her left foot started \nhurting on 03/01/2021.  Her left foot injury affected her walking \nand ambulation and aggravated her back pain.   \nShe also comes in to discuss the result of her lumbar spine x-\nray, which showed mild intervertebral disc loss on the L4, L5, \nand S1 and some facet arthropathy.  The patient had low back \npain with right-sided radiculopathy, which is aggravated by a \nrecent foot injury and prolonged walking in a walker boot or \nscooter.   \n \n Dr. McBay assessed “1.  Acute right-sided low back pain with right-\nsided sciatica[.]...Continue present care measures.”   \n Dr. Robert Daniel Martin noted on January 6, 2023: \nThe patient is seen today for evaluation of her left foot.  Back \nin March of 2021 she had a crush type injury of the left foot.  \nShe has had a very long and drawn out course thereafter with \nmultiple surgeries performed by another orthopedic surgeon, \nand also podiatrist....She has also been seen by pain \nmanagement for evaluation regarding the possibility of \ncomplex regional pain syndrome, this also been (sic) seen by \npain management for evaluation regarding the possibility of \ncomplex regional pain syndrome, this was felt to be less likely.  \nCurrently the patient is unable to work full duty because of left \nfoot pain, she has pain and swelling on a regular basis, she is \nunable to walk or stand for any prolonged period of time \nbecause of pain and swelling mostly on the dorsal foot.  She \nalso continues to complain of significant pain over the \nprevious incision over the distal peroneal tendons....She \nwalks with an antalgic gait.... \nThis is a complicated problem, she has had multiple surgeries \nincluding attempted midfoot fusion but this has failed, her \nimplants are not really even in the bone.  She has persistent \npain over where her peroneal tendons were either explored \n[or] repaired.  She has 1\nst\n webspace numbness from previous \n\nPEACOCK - H109939  6\n  \n \n \nnerve excision.  The site of injury is really not even in the area \nwhere all of her surgeries have been performed [and] the \npatient is understandably perplexed by this, as am I.   \n \n Dr. Martin planned, “At this point I think the patient will require \nrevision midfoot arthrodesis with removal of the failed orthopedic implants, \nthis should provide some improvement in pain.  Also would recommend \nexploration of the distal peroneal tendons in the site of previous surgery as \nshe has significant symptoms here.  Unfortunately I think the nerve type \nsymptoms from deep peroneal nerve irritation and numbness, \nhyperesthesias in the dorsal foot may be permanent based on the chronicity \nof her problem.”   \nDr. Martin performed surgery on February 13, 2023:  “1.  28730, \nmidfoot arthrodesis of 1\nst\n and 2\nnd\n tarsometatarsal joints, left foot.  2.  20900, \nharvesting of calcaneal autograft, left foot, separate incision.  3.  27675, \nopen repair of peroneus brevis tendon, left ankle.”  The pre- and post-\noperative diagnosis was “1.  Posttraumatic arthropathy of left foot.  2.  \nNonunion and midfoot arthrodesis, left foot.  3.  Peroneus brevis tear, left \nankle.  4.  Retained failed orthopedic implants, left foot.”   \nDr. Martin provided follow-up treatment after surgery.  The claimant \ntestified on direct examination: \nQ.  During this period of time, were you able to be weight-\nbearing on that foot? \n\nPEACOCK - H109939  7\n  \n \n \nA.  It was off and on.  Sometimes I was, sometimes I wasn’t.  I \nwas in a walking boot and on a knee scooter almost the entire \ntime.   \nQ.  Did that –  \nA.  Until after Dr. Martin done my last surgery.  I, eventually, \ncame off of my scooter.   \nQ.  Did that change the way you walk at all? \nA.  Oh, most definitely. \nQ.  And at some point, did you develop pain in your back? \nA.  As a matter of fact, yes.... \nQ.  At some point, did your foot swell, change colors, get hot? \nA.  Yes, it was doing that before I saw Dr. Burks, and that’s \none of the reasons I went to see Dr. Burks, because it was not \nhealing up and it was just – the color had changed and it was \nitching and burning, and I had all kinds of issues going on.   \n \n Dr. Lily F. Guastella examined the claimant on March 14, 2023 and \nnoted in part, “I do suspect that her back pain is related to walking in a \ncast/boot with scooter for nearly 2 years.” \nAn MRI of the claimant’s lumbar spine was taken on March 24, 2023, \nwith the following conclusion: \n1. Moderate facet arthropathy at L4-L5 with a right-sided \nfacet effusion and mild surrounding soft tissue edema and \nenhancement, indicating acute reactive or inflammatory \nchanges.  There are small ganglion cyst formation \nextending posteriorly from the facet. \n2. Mild bilateral neural foramen stenosis at L4-L5.  No \nsignificant spinal canal stenosis at any level. \n \nDr. Guastella’s assessment on April 3, 2023 was “(1)  Abnormal MRI, \nlumbar spine:  Status:  Acute....Patient does appear to have acute \nenhancement and inflammatory changes noted on MRI of the lumbar spine.  \n\nPEACOCK - H109939  8\n  \n \n \nLikely secondary to compensation from foot injury, does not appear \nchronic.\"    \n An x-ray of the claimant’s lumbar spine was taken on April 3, 2023 \nand was compared with the x-ray taken November 21, 2022.  The following \nfindings and conclusions resulted: \nLumbar spinal alignment is within normal limits.  No displaced \nfracture or other acute osseous abnormality identified.  \nMultilevel bilateral facet joint arthropathy is noted, worse in the \nlower lumbar spine.  Mild discogenic DJD at L5-S1.  SI joints \nintact.   \n \n Savannah Bradbury, PA-C reported on April 4, 2023: \nVery pleasant 49-year-old female using a knee scooter for her \nleft knee to be nonweightbearing in clinic.  She describes \nworsening right-sided low back pain after having to walk with \nthe boot and using a knee scooter.  She has degenerative \narthritis at L4-5.  There is some fluid signal in the right facet \njoint but there is no spondylolisthesis.  I am recommending \nphysical therapy for core low back stretching and \nstrengthening exercises as well as any possible gait training \nthat can help while she is continuing to wear a boot and use a \nknee scooter.  She may also benefit from traction.  She is also \ninterested in seeing pain management to discuss facet blocks.  \nAt this time surgical intervention is not warranted.  I do not \nhave a great explanation for numbness and tingling as well as \npain down into her right leg.  I suspect is likely more related to \nspasms and pain in her low back.  If her low back pain \nimproved but she continues to have right leg pain with \nnumbness the [next] step would be getting a nerve conduction \nstudy.  She will call us with any concerns or questions \notherwise follow-up as needed.   \n \n The claimant followed up with Dr. Roman on June 12, 2023.  Dr. \nRoman noted in part, “We will now proceed on with treatment of CRPS and \n\nPEACOCK - H109939  9\n  \n \n \nlumbar sympathectomies to be done by two block technique and ketamine \nprotocol will be utilized.”  Dr. Roman diagnosed “1.  Complex regional pain \ndown the left lower extremity, type 1.  2.  Left foot pain.  3.  She had a left \nfoot fracture.  4.  Left ankle fracture.  5.  Other long term use of medication.”     \n Dr. Roman performed a procedure on July 6, 2023:  “Lumbar \nsympathetic block, #3 of 3, on the left side, ketamine protocol utilized.”  The \npre- and post-operative diagnosis was “Complex regional pain syndrome, \nleft lower extremity, type 1.”   \n Dr. Martin reported on July 20, 2023: \nPatient is seen today in follow-up, overall she reports \ncontinued improvement but she [is] still having occasional \nnerve pain and swelling and does limit her ability to stand for \nprolonged periods of time.... \nX-rays demonstrate healed midfoot fusion of 1\nst\n and 2\nnd\n \ntarsometatarsal joints, no other acute findings are noted.  \nStable implant position.... \nThe patient is placed at maximum medical improvement, \npermanent work restrictions are limited ladders and stairs, no \nstanding more than 30 minutes an hour, allowed breaks as \nneeded.  Based on 4\nth\n edition AMA guidelines, her permanent \npartial impairment rating chapter 3, page 81, midfoot ankylosis \nneutral position, 4% whole person, 10% lower extremity, 14% \nfoot.   \n \n Dr. Roman assessed maximum medical improvement on August 29, \n2023. \n Dr. Roman noted on October 2, 2023: \nThe patient is a 50-year-old female, is a Workers \nCompensation patient.  She had a left foot injury in March of \n2021....A cart ran over her foot.  She had a sesamoid \n\nPEACOCK - H109939  10\n  \n \n \nfracture, ended up with traumatic osteoarthritis of the \nmetatarsal  joints.  Ultimately she had a nonunion and mid-\nfoot arthrodesis of the first and second metatarsal joints of the \nleft foot.  She developed complex regional pain syndrome, we \nhave resolved. \nThe question is the impairment rating as it pertains to foot \nfractures.  By the AMA Guidelines, the only ratable \nimpairment on page 78, table 45 for toe impairments, that the \nfirst metatarsophalangeal joint and second \nmetatarsophalangeal joint were fused, it would lead to a mild \nimpairment at a 1% whole person impairment for the lower \nextremity.  Her total impairment, again, is 1% for the first and \nsecond metatarsal joint.  She has some mild impairment \nthere.  No other impairments would be applicable.   \n \n On October 16, 2023, Casey Garretson and Rick Byrd with \nFunctional Testing Centers, Inc. assessed the claimant as having a 5% \nwhole-person impairment. \n An orthotic specialist noted on November 10, 2023, “Patient was \nseen in the office to be measured for a left foot insert due to pain.  Patient \nhad an injury to the left foot and has had multiple surgeries and hardware \ninstalled.  She had a hospital bed run over her forefoot.  She has tried other \ninserts, walking boots and carbon footplates that did not work.  Patient has \nbruising and edema in the foot.  She has obvious gait abnormalities due to \nlimping.”     \n Dr. Roman noted on January 3, 2024: \nThe patient is a 50-year-old female, is a Workers \nCompensation patient.  She had a foot injury when she \nworked at Conway Regional and a cart rolled over her foot.  \nShe had a foot surgery, had a sesamoid fracture, calcaneal \nstress fracture.  Dr. Head did surgery and another surgery by \n\nPEACOCK - H109939  11\n  \n \n \nDr. Burks.  She was diagnosed with complex regional pain \nsyndrome and had another surgery by Dr. Martin.  I did a \nseries of sympathetic blocks on the left lower extremity.  The \nsympathetic tone has normalized.  She comes in today with \nincreasing pain in the foot, complaining of swelling, and she \nwas afraid she had a return of complex regional pain \nsyndrome symptoms.  She does have pain there, but the \ntemperature, tone and color are all symmetric, and there is no \nexcess swelling.  She has hypersensitivity over the foot and \nburning pain in the foot.  I tried to explain to the patient that \nthat does not constitute a complex regional pain syndrome \ndiagnosis.  It is a sympathetic dysfunction of the nervous \nsystem, which currently is resolved.  I do not recommend \nfurther interventional procedures again, sympathetic blocks, \nspinal cord stimulators, etc.  I think it would be an \nunnecessary risk to the patient.  She had a Medrol Dosepak \nthat did resolve a lot of the symptoms.  I would continue to \ngive her access to gabapentin and diclofenac as needed, but I \ndo not recommend further interventions.  I think she is at \nmaximum medical improvement as far as interventional \nprocedures, surgeries, etc.... \nThe left foot tone, color and temperature are symmetric.  The \nvasculature is normal.  There are two incision lines on the top \nof the foot.  There is a little bit of skin disruption there, but the \nskin is mobile.  Skin breakdown issues.  Peripheral pulses are \npalpable.  By Budapest Criteria, she has complained of pain \nand hypersensitivity, but that would be the only symptom.  \nShe does not have sympathetic dysfunction.  She does not \nhave complex regional pain syndrome of the left lower \nextremity.   \nFINAL DIAGNOSES: \n1. History of complex regional pain syndrome, left lower \nextremity, resolved. \n2. Left foot pain. \n3. Sequela of a left foot fracture.   \n4. Sesamoid bone fracture.   \n5. Calcaneal fracture. \n6. Ankle pain. \n7. Long-term use of medications. \n8. Post-incisional neuropathy.   \n \nDr. Roman planned, “Follow up as indicated.” \n\nPEACOCK - H109939  12\n  \n \n \nThe claimant’s attorney corresponded with Dr. Barry D. Baskin on \nJuly 17, 2024.  The claimant’s attorney queried Dr. Baskin with regard to \nissues such as complex regional pain syndrome, altered gait, and maximum \nmedical improvement.       \n Dr. Baskin provided a lengthy Second Opinion on July 22, 2024 and \nreported in part: \nMs. Peacock is referred for a second opinion.  This is more \nakin to an IME based on the records and time allotted for this \nevaluation, approaching an hour and a half face-to-face.  My \nimpression is that Ms. Peacock had a crush injury to her left \nfoot.  She has had 3 surgeries as outlined.  The first surgery \nresulted in some resection of some of her superficial peroneal \nbranches in the left foot and some resection of the deep \nperoneal nerve in the left foot with burying of the nerve into \nthe bone.  She has had some symptoms that have been felt \nby her providers, including Dr. Roman, to represent complex \nregional pain syndrome.  She does have, by her record and \nher examination, clearly some nerve problems in the left foot.  \nMy inclination is that she has neuropathic pain as a result of \nthe superficial and deep peroneal nerve resection.  Her \nexamination is a little perplexing because the peripheral nerve \nissues that she has could easily be confused with reflex \nsympathetic dystrophy or CRPS.  I explained to her in great \ndetail that CRPS can result from very minimal trauma such as \na hangnail or an ingrown toenail or some minimal problem \nwith the foot or ankle or it can be due to a more serious issue \nsuch as surgeries like she has had.  Frequently peripheral \nnerve lesions manifest like CRPS.  She does have allodynia, \nsome mild color changes in the skin over the course of our \nevaluation, and temperature changes.  This could very well be \ncoming from the effects of the nerve resections that were \ndone in the first surgical procedure.  I think she does have \nsome low back pain and the low back pain might well have \nresulted from her walking with altered gait mechanics because \nof the left foot problems, the walker boot, and the knee \nscooter.  She has minimal degenerative changes in her \n\nPEACOCK - H109939  13\n  \n \n \nlumbar spine and some facet arthropathy at L4-5.  That \nproblem is a little more clear-cut than the left foot.  My \nrecommendation would be to get a 3-phase bone scan and I \nwould recommend EMG and nerve conduction studies of the \nleft lower extremity.  From Dr. Head’s operative note the nerve \nresections were branches of the superficial peroneal and deep \nperoneal very distally down into the forefoot area.  These may \nnot show up on EMG or nerve conduction studies, but I still \nthink the studies would be helpful in looking for objective \nfindings.  As well, I think she would benefit diagnostically from \na 3-phase bone scan.   \nMr. Wren has asked some questions regarding my evaluation. \n1. Do I believe that Ms. Peacock has CRPS from this injury \nand surgeries to her left foot?   \nAnswer:  That has been addressed previously.  She \ncertainly may have now and may have had previously \nCRPS that has gone into remission and come back again.  \nI am inclined to believe that this is more related to chronic \nnerve pain as a result of the nerve resections more than \nCRPS.  A 3-phase bone scan might give us some good \ninformation in answering that question and nerve \nconduction studies could also be helpful. \n2. Do I believe that if Ms. Peacock has CRPS has it \npermanently been resolved and Ms. Peacock is at \nmaximum medical improvement in regard to CRPS?   \nAnswer:  I do not think her pain is resolved.  I think she is \nstill symptomatic, but again, I do not think that I can clearly \nsay with reasonable medical certainty that her pain \nsyndrome is CRPS versus peripheral nerve injuries from \nsurgery. \n3. Do you believe that Ms. Peacock is currently having \nsymptoms of CRPS? \nAnswer:  Again, answer previously discussed above. \n4. Do I believe that Ms. Peacock has lumbar pain that was \ncaused by long-term altered gait? \nAnswer:  Yes. \n5. Do I believe that Ms. Peacock is at maximum medical \nimprovement in regards to her lumbar pain?   \nAnswer:  No.   \n6. If Ms. Peacock is not at maximum medical improvement in \nregards to her lumbar pain, what further testing or \ntreatment would you recommend for Ms. Peacock? \n\nPEACOCK - H109939  14\n  \n \n \nAnswer:  She does have some referred pain down into her \nright leg and thigh, mostly in the thigh.  She does have \nclear-cut facet arthropathy that is most likely degenerative \nin nature, but appears to have been an aggravation from \nher gait mechanic alterations and the scooter.  EMG and \nnerve conduction studies would be useful on the right \nlower extremity as well.  If she is allowed to have EMG and \nnerve conduction studies through Worker’s Compensation \nI would suggest that we get them done with Dr. Mike \nChesser and that both lower extremities be evaluated for \ndifferent etiologies.  Also she might benefit from a facet \nblock in the right L4-5 facet.  She did appear to be \nneurologically intact in the right lower extremity completely, \nbut she does still have subjective symptoms that could be \ncoming from sciatica.  Her pain problem is more consistent \nwith facet arthropathy, however. \nThis concludes my Independent Medical Evaluation of Ms. \nPeacock.  Greater than 3 hours was spent in performing this \nexam, reviewing the record, and dictating this note.  If there \nare any questions regarding this evaluation I would be happy \nto address them if they are forwarded to me.  I appreciate the \nopportunity to assist in this nice lady’s care. \n \n A pre-hearing order was filed on December 10, 2024.  The claimant \ncontended, “Claimant sustained an injury to her left foot on March 1, 2021, \nwhile moving a bed in labor and delivery it rolled over the top of her left foot.  \nShe treated with Dr. Robert Martin @ UAMS Ortho Clinic on Shackleford.  \nShe has undergone 3 different surgeries on her left foot.  The 1\nst\n surgery \nwas on 12/14/2021 with Dr. Adam Head.  The second surgery was on \n8/12/2022 with Dr. Burks.  He kept her on non-weight bearing for a period of \ntime.  She used a knee scooter due to swelling in her foot.  Dr. Burks noted \non 10/26/2022 that she possible (sic) have complex regional pain syndrome \nand recommended her to see Dr. Roman.  Dr. Roman did an Independent \n\nPEACOCK - H109939  15\n  \n \n \nMedical Evaluation on her on (sic)[.]  He did not feel she had the criteria for \nCRPS.  Dr. Roman referred he (sic) back to Dr. Burks for additional \ntreatment.  Dr. Burks did a 3\nrd\n surgery on 02/13/2023.  She continued to \nhave pain and was seen again by Dr. Roman who felt like she met all the \ncriteria for RSD at that time.  She underwent sympathetic blocks.  She was \nreleased from Dr. Martin and Dr. Roman and received impairment ratings.  \nShe had an FCE test on 10-16-23 which stated she had a combined IR of \n5% whole person.”   \n The claimant contended, “After continued pain, she was seen by Dr. \nBarry Baskin for a second opinion/IME.  Dr. Baskin opined that she clearly \nhas some nerve problems in the left foot.  He stated that because of the the \n(sic) peripheral nerve issues that she has could easily be confused with \nCRPS (sic).  Dr. Baskin opined that he thinks she does have some low back \npain and the low back pain might well have resulted from her walking with \naltered gait mechanics because of left foot problems, the walker boot and \nknee scooter.  Dr. Baskin has recommended a 3-phase bone scan and \nEMG and nerve conduction studies of the left lower extremity which have \nnot been approved by Workers Compensation.” \n The respondents contended, “Respondents contend that all \nappropriate benefits are being paid with regard to Claimant’s left lower \nextremity injury sustained on 3/1/21.  Treatment recommended by Dr. Barry \n\nPEACOCK - H109939  16\n  \n \n \nBaskin is not reasonable and necessary associated with the same.  All \nappropriate temporary total disability benefits have been paid.”   \n The parties agreed to litigate the following issues: \n1. Whether claimant is entitled to reasonable and necessary \nmedical treatment and related expenses, including a 3-\nphase bone scan, EMG and nerve conduction study of the \nleft lower extremity.   \n2. Whether Claimant is entitled to additional reasonable and \nnecessary medical treatment to her lower back as a \ncompensable consequence of the compensable left foot \ninjury. \n3. Whether Claimant is entitled to Temporary Total Disability \n(TTD) benefits from August 29, 2023 to a date yet to be \ndetermined.   \n4. Whether Claimant’s attorney is entitled to a controverted \nattorney’s fee. \n5. All other issues are reserved. \n \nA hearing was held on April 1, 2025.  The claimant testified that she \ncontinued to suffer from pain, and that she wanted to undergo the \ndiagnostic testing recommended by Dr. Baskin.   \nAn administrative law judge filed an opinion on May 27, 2025.  The \nadministrative law judge found that the claimant did not prove she was \nentitled to additional temporary total disability or temporary partial disability \nbenefits.  The claimant does not appeal those findings.  The administrative \nlaw judge found that the claimant proved she sustained a compensable \nback injury as a compensable consequence of the claimant’s compensable \nleft foot injury.  The administrative law judge found that the claimant proved \n\nPEACOCK - H109939  17\n  \n \n \nshe was entitled to additional medical treatment.  The respondents appeal \nto the Full Commission.   \nII.  ADJUDICATION \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury sustained by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. \n2012).  The employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).   \n An administrative law judge found in the present matter, “3.  The \nClaimant has proven by the preponderance of the evidence that she is \nentitled to additional reasonable and necessary medical treatment, \nincluding a three-phase bone scan, an EMG, and a nerve conduction study \nof the left lower extremity.”  The Full Commission finds that the claimant \nproved she was entitled to additional medical treatment as currently \nrecommended by Dr. Baskin. \n\nPEACOCK - H109939  18\n  \n \n \n The parties stipulated that the claimant, who the Full Commission \nfinds was a credible witness, sustained a compensable injury to her left foot \non March 1, 2021.  The respondents initially accepted the claim and paid \nbenefits.  Dr. Johnson’s impression on March 3, 2021 was “crush injury” of \nthe left foot.  Dr. Head performed surgery in December 2021.  The claimant \nthereafter began treating with Dr. Roman.  Dr. Burks performed surgery in \nAugust 2022.  Dr. McBay reported in December 2022, “Her left foot injury \naffected her walking and ambulation and aggravated her back pain.”  Dr. \nMartin noted in January 2023 that the claimant “walks with an antalgic gait.”  \nDr. Martin performed surgery in February 2023.   \n Dr. Guastella noted in March 2023, “I do suspect that her back pain \nis related to walking in a cast/boot with scooter for nearly 2 years.”  The \nrecommendation of Savannah Bradbury, PA-C in April 2023 included a \nnerve conduction study.  An orthotic specialist in November 2023 reported \nthat the claimant “has obvious gait abnormalities due to limping.”   \n The claimant was assigned varying anatomical impairment ratings on \nJuly 20, 2023, October 2, 2023, and October 16, 2023.  The record does \nnot clearly show which rating the respondent-carrier accepted and paid.  \nPermanent impairment, which is a medical condition, is any permanent or \nanatomical loss remaining after an employee’s healing period has ended.  \nJohnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994).  \n\nPEACOCK - H109939  19\n  \n \n \nThe evidence in the present matter demonstrates that the claimant reached \nthe end of a healing period no later than October 16, 2023, the latest date \nthe claimant was assessed as having a permanent anatomical impairment \nresulting from the compensable injury.  Nevertheless, it is well-settled that a \nclaimant may be entitled to ongoing medical treatment after the healing \nperiod has ended, if the medical treatment is geared toward management of \nthe claimant’s injury.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, \n184 S.W.3d 31 (2004), citing Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, \n649 S.W.2d 845 (1983).   \n In the present matter, the Full Commission finds that the claimant \nproved she was entitled to additional medical treatment as currently \nrecommended by Dr. Baskin.  Dr. Baskin opined that additional medical \ntreatment was necessary in part to treat the claimant’s chronic pain \nresulting from her compensable injury.  Reasonably necessary medical \ntreatment can include an effort to reduce symptoms of pain which result \nfrom a compensable injury.  University of Central Arkansas v. Srite, 2019 \nArk. App. 511, 588 S.W.3d 849.  Dr. Baskin’s recommendations, as stated \nin his July 22, 2024 Second Opinion, include a three-phase bone scan, an \nEMG, nerve conduction studies, and a facet block.  The Full Commission \nfinds that these treatment recommendations are reasonably necessary in \naccordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  It is within the \n\nPEACOCK - H109939  20\n  \n \n \nCommission’s province to weigh all of the medical evidence and to \ndetermine what is most credible.  Minnesota Mining & Mfg. v. Baker, 337 \nArk. 94, 989 S.W.2d 151 (1999).  The Full Commission finds in the present \nmatter that Dr. Baskin’s treatment recommendations are sound and are \nentitled to more evidentiary weight than Dr. Roman’s conclusion that \nadditional treatment is not reasonably necessary.   \n The Full Commission also finds that the claimant’s low back \ncomplaints are causally related to the compensable injury to the claimant’s \nleft foot.  If an injury is compensable, then every natural consequence of \nthat injury is also compensable.  Hubley v. Best Western Governor’s Inn, 52 \nArk. App. 226, 916 S.W.2d 143 (1996).  The basic test is whether there is a \ncausal connection between the two episodes.  Jeter v. B.R. McGinty \nMechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998).  The burden is on the \nclaimant to establish the necessary causal connection.  Nichols v. Omaha \nSch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148.  Whether there is a causal \nconnection is a question of fact for the Commission.  Jeter, supra.  In \nworkers’ compensation cases, the Commission functions as the trier of fact.  \nBlevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988).  The \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \n\nPEACOCK - H109939  21\n  \n \n \nportions of the testimony it deems worthy of belief.  Farmers Co-op v. Biles, \n77 Ark. App. 1, 69 S.W.3d 899 (2002).   \n The claimant sustained a compensable crush injury to her left foot on \nMarch 3, 2021.  The claimant credibly testified that she developed low back \npain as a result of her compensable injury.  The medical evidence \ncorroborated the claimant’s testimony.  Dr. McBay noted in December \n2022, “Her left foot injury affected her walking and ambulation and \naggravated her back pain.” Dr. Martin reported in January 2023 that the \nclaimant “walks with an antalgic gait.”  Dr. Guastella stated in March 2023, \n“I do suspect that her back pain is related to walking in a cast/boot with \nscooter for nearly 2 years.”  A physician’s assistant reported in April 2023, \n“She describes worsening right-sided low back pain after having to walk \nwith the boot and using a knee scooter.”  An orthotic specialist noted in \nNovember 2023, “She has obvious gait abnormalities due to limping.”  \nFinally, Dr. Baskin expressly opined on July 22, 2024 that the claimant’s \nlumbar pain was caused by “long-term altered gait.”  The claimant in the \npresent matter proved by a preponderance of the evidence that her low \nback pain was a natural consequence of the stipulated compensable injury.  \nHubley, supra.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she was entitled to additional medical treatment.  \n\nPEACOCK - H109939  22\n  \n \n \nThe claimant proved that Dr. Baskin’s current treatment recommendations \nwere reasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  For prevailing on appeal, the claimant’s attorney is \nentitled to a fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b)(Repl. 2012).   \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \nI must respectfully dissent from the majority opinion.  In my de novo \nreview of the record, I find the claimant has not proven by a preponderance \nof the credible evidence that her purported low-back pain is a result of her \ncompensable left foot injury or met her burden of proving that she is entitled \nto additional medical treatment for the injury to her left foot. \nThe claimant suffered an admittedly compensable injury to her left foot on \nMarch 1, 2021.  The claimant contends that she sustained compensable back \ninjury as a result of her foot injury and is entitled to additional medical treatment \nfor the injury to her left foot.  After a hearing, an administrative law judge (ALJ) \n\nPEACOCK - H109939  23\n  \n \n \ndetermined that the claimant is entitled to additional medical treatment for her \nfoot injury and that she has sustained a compensable low-back injury. \nArk. Code Ann. § 11-9-508(a) requires an employer to provide an injured \nemployee with medical and surgical treatment \"as may be reasonably necessary \nin connection with the injury received by the employee.\" The claimant has the \nburden of proving by a preponderance of the evidence the additional treatment is \nreasonable and necessary.  Nichols v. Omaha Sch. Dist., 2010 Ark. App. 194, \n374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of fact for \nthe Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 S.W.3d 445 \n(2023).  In assessing whether a given medical procedure is reasonably \nnecessary for treatment of the compensable injury, the Commission analyzes \nboth the proposed procedure and the condition it sought to remedy.  Walker v. \nUnited Cerebral Palsy of Ark., 2013 Ark. App. 153, 426 S.W.3d 539 (2013).  \nIt is within the Commission's province to weigh all the medical evidence to \ndetermine what is most credible and to determine its medical soundness and \nprobative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. App. 459, 637 S.W.3d \n280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily disregard \nmedical evidence or the testimony of any witness.  Id.  However, the \nCommission has the authority to accept or reject medical opinions.  Williams v. \n\nPEACOCK - H109939  24\n  \n \n \nArk. Dept. of Community Corrections, 2016 Ark. App. 427, 502 S.W. 3d 530 \n(2016).  Furthermore, it is the Commission's duty to use its experience and \nexpertise in translating the testimony of medical experts into findings of fact and \nto draw inferences when testimony is open to more than a single interpretation. \nId. \nIn the present case, the claimant has undergone three surgeries \nthroughout the course of her treatment, conducted by Dr. Adam Head, Dr. Jesse \nBurks, and Dr. Robert Martin.  \nThe claimant ultimately obtained an opinion from Dr. Barry Baskin \nregarding further treatment on July 22, 2024.  In his four-page report, Dr. Baskin \noutlines the claimant’s treatment history, focusing largely on nerve pain observed \nin Dr. Head’s 2021 operative notes.  Dr. Baskin noted: \n[f]rom Dr. Head’s operative note the nerve resections \nwere branches of the superficial peroneal and deep \nperoneal very distally down into the forefoot area.  These \nmay not show up on EMG or nerve conduction studies, \nbut I still think the studies would be helpful in looking for \nobjective findings.  As well, I think she would benefit \ndiagnostically from a 3-phase bone scan.  \n \nThe claimant’s second surgery was by Dr. Burks, which included \n“peroneus brevis tendon repair to the left” as noted by Dr. Baskin in his report. \nThe third surgery performed by Dr. Martin on February 13, 2023, addressed “left \nmidfoot arthrodesis of the 1\nst\n and 2\nnd\n tarsometatarsal joints of the left foot, \nharvesting of the calcaneal autograft left foot through a separate incision, and \nopen repair of the peroneus brevis tendon left ankle.”  \n\nPEACOCK - H109939  25\n  \n \n \nIn short, the nerve issues Dr. Baskin wants to address have been treated \nover the course of this claim, and Dr. Baskin’s report does nothing to explain the \nreason to readdress these issues which have been fully explored.  Further, Dr. \nBaskin states in his report that any findings “may not show up on EMG or nerve \nconduction studies.”  \nDr. Baskin also recommends a three-phase bone scan; however, the \nclaimant has previously undergone this exact test on April 28, 2022.  This \nrevealed “no scintigraphic evidence of complex regional pain syndrome. \nDegenerative type activity along the bilateral first metasophalangeal joints \ngreater in the left than the right.”  \nNone of the claimant’s treating physicians have recommended an \nadditional bone scan, including her pain management specialist Dr. Carlos \nRoman.  In fact, Dr. Roman has opined that the claimant’s complex regional pain \nsyndrome had resolved by January 3, 2024.  Even Dr. Baskin himself believes \nthat the claimant’s pain is “more related to chronic nerve pain as a result of the \nnerve resections more than CRPS.”  \nThe studies recommended by Dr. Baskin are clearly not reasonable and \nnecessary.  The issues they seek to identify have either resolved or have been \naddressed by the claimant’s treating physicians.  Dr. Baskin is not confident that \nthese studies will result in any findings that will aid in the claimant’s treatment \n\nPEACOCK - H109939  26\n  \n \n \nand will do nothing to further the claimant’s care.  For these reasons, the \nclaimant has failed to meet her burden of proof.  \nGenerally, a specific incident injury is an accidental injury arising out of \nthe course and scope of employment caused by a specific incident identifiable by \ntime and place of an occurrence.  Ark. Code Ann. § 11-9-102(4)(A)(i).  This, \ntherefore, requires that a claimant establish by a preponderance of the evidence: \n(1) an injury arising out of and in the course of employment; (2) that the injury \ncaused internal or external physical harm to the body which required medical \nservices or resulted in disability or death; (3) medical evidence supported by \nobjective findings establishing an injury as defined in Ark. Code Ann. §11-9-\n102(16) and; (4) that the injury was caused by a specific incident identifiable by \ntime and place of occurrence.  Ark. Code Ann. § 11-9-102(4)(A)(i). \nHowever, a compensable injury may also arise as a compensable, or \nnatural, consequence of a prior specific incident injury.  If an injury is \ncompensable, then every natural consequence of that injury is also \ncompensable.  Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d 91 \n(2008).  The basic test is whether there is a causal connection between the two \nepisodes.  Walker v. Fresenius Med. Care Holding, Inc., 2014 Ark. App. 322, 436 \nS.W.3d 164 (2014). \nThe claimant suffers from common degenerative changes to her spine.  A \nJuly 2020 X-ray of the claimant’s lumbar spine revealed narrowing at L4-5.  An \n\nPEACOCK - H109939  27\n  \n \n \nX-ray conducted on November 21, 2022, showed mild disc height loss at L4-5 \nand L5-S1.  A March 24, 2023 MRI showed mild facet arthropathy and no \nsignificant stenosis at L5-S1.  \nUpon examining the claimant, Dr. Regan Gallaher, a neurosurgeon, noted \nmild degenerative changes, no significant central canal or foraminal narrowing, \nand degenerative arthritis at L4-5.   \nDr. Baskin’s findings agree with previous assessments, finding “minimal \ndegenerative changes in her lumbar spine.”  Dr. Baskin conducted a physical \nexamination of the claimant’s lumbar spine and found no muscle spasms and \nnormal lumbar lordosis.  \nThe claimant’s statements concerning the origin of her back pain have \nbeen inconsistent.  On March 14, 2023, the claimant stated in her history to \nConway Regional Health System that her back pain began in June of 2022, well \nafter her compensable injury.  However, at the hearing, she testified that her \nback pain began in March of 2021.  \n There is no evidence in the record to support a finding that the claimant’s \nback pain has any causal connection to her compensable left foot injury.  The \nclaimant’s pain is a clear result of degenerative problems as outlined by her \ntreating physicians.  Not one of the physicians who treated the claimant has \nstated with a reasonable degree of medical certainty that her back problems are \nrelated to her compensable foot injury.  \n\nPEACOCK - H109939  28\n  \n \n \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":44895,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H109939 WENDY PEACOCK, EMPLOYEE CLAIMANT CONWAY REGIONAL MEDICAL CENTER, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 24, 2025","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["strain","fracture","back","lumbar","ankle","knee"],"fetchedAt":"2026-05-19T22:29:44.015Z"},{"id":"alj-H305791-2025-09-24","awccNumber":"H305791","decisionDate":"2025-09-24","decisionYear":2025,"opinionType":"alj","claimantName":"Calvin Jeanlewis","employerName":"Prime Industrial Recruiters, Inc","title":"JEANLEWIS VS. PRIME INDUSTRIAL RECRUITERS, INC. AWCC# H305791 September 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JEANLEWIS_CALVIN_H305791_20250924.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JEANLEWIS_CALVIN_H305791_20250924.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H305791 \n \n \nCALVIN D. JEANLEWIS,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nPRIME INDUSTRIAL RECRUITERS, INC.,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nZURICH AMERICAN INS. CO./ \nTHE ZURICH SERVICES CORP., \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED SEPTEMBER 24, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Tuesday, September 23, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Calvin D. JeanLewis, pro se, failed and/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Michael C. Stiles, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Tuesday, September 23, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and 11 C.A.R. Section 25-110(d) (Code of AR Regulations 2025) (formerly cited \nas Commission Rule 099.13 (2025 Lexis Replacement)). \n         The respondents filed a motion to dismiss this claim without prejudice for lack of prosecution \nand  brief  in  support  thereof (MTD)  on  July  22,  2025. (Respondents’  Exhibit  1  at 2-9). In \naccordance  with  the  applicable  law  the  claimant was provided  due  and  legal  notice  of both the \n\nCalvin D. JeanLewis, AWCC No. H305791 \n2 \n \nrespondents’ MTD as well as the date, time, and place of the subject hearing. (Commission Exhibit \n1; RX1 at 10). Thereafter, the claimant failed and/or refused to respond to the respondents’ motion \nin any way, or to appear at the subject hearing. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute his claim, or to request a \nhearing in the last six (6) months. \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of both the respondents’ MTD without prejudice \nfiled with the Commission on July 22, 2025, as well as due and legal notice of the date, \ntime, and place of the subject hearing, the claimant failed and/or refused to respond to the \nMTD in any way and failed and/or refused to appear at the subject hearing. \n \n3. The claimant has not requested a hearing within the last six (6) months and has taken no \nsteps to raise any issues related to or to prosecute this claim.  \n \n\nCalvin D. JeanLewis, AWCC No. H305791 \n3 \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwithout prejudice filed July 22, 2025, should be and hereby is GRANTED; and this claim  \nis dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. \nCode  Ann. Section  11-9-702(a)  and  (b) and 11 C.A.R. 25-110(d)  (formerly  cited  as \nCommission Rule 099.13). \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n\nCalvin D. JeanLewis, AWCC No. H305791 \n4","textLength":5123,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305791 CALVIN D. JEANLEWIS, EMPLOYEE CLAIMANT PRIME INDUSTRIAL RECRUITERS, INC., EMPLOYER RESPONDENT ZURICH AMERICAN INS. CO./ THE ZURICH SERVICES CORP., CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 24, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WIT...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:36:41.089Z"},{"id":"alj-H500021-2025-09-24","awccNumber":"H500021","decisionDate":"2025-09-24","decisionYear":2025,"opinionType":"alj","claimantName":"Sean Kurz","employerName":"Family Dollar Stores","title":"KURZ VS. FAMILY DOLLAR STORES AWCC# H500021 September 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KURZ_SEAN_H500021_20250924.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KURZ_SEAN_H500021_20250924.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H500021 \n \nSEAN KURZ, Employee CLAIMANT \n \nFAMILY DOLLAR STORES, Employer RESPONDENT \n \nSEDWICK CLAIMS MANAGEMENT, Carrier RESPONDENT \n \n \n \n OPINION FILED SEPTEMBER 24, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents   represented   by MELISSSA   WOOD,   Attorney   at   Law, Little   Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n Respondent accepted as compensable an injury to claimant’s ankle on May 2, \n2024. The claim was accepted as a medical only claim. Thereafter, claimant apparently \nmoved  to  Utah  and  received  some  medical  treatment  which  respondent  has  not \naccepted.   On   January   2,   2025,   claimant   filed   Form   AR-C   requesting   various \ncompensation benefits. \n Since the filing of the AR-C, no hearing has been requested and no other action \nhas  been  taken  by  claimant  to  proceed  with  his  claim.  On  July  10,  2025,  respondents \nfiled a Motion to Dismiss alleging, in part, that claimant had failed to prosecute his claim \n\nKurz – H500021 \n \n-2- \nand  requesting a  dismissal  pursuant  to  11  CAR § 25-110  (d).  That  rule  provides  that \nupon application by either party for a dismissal for failure to prosecute, the Commission \nmay, after reasonable notice to all parties, enter an order dismissing the claim.  \n A hearing was scheduled on respondents’ Motion to Dismiss for September 17, \n2025.  Notice  of  the  hearing  was  sent  to  claimant  by  certified  mail  and  delivered  on \nAugust  12,  2025.  Claimant  did  not  appear  at  the  hearing  and  has  not  responded  to \nrespondents’ motion.  \n After  my  review  of  respondents’  motion,  claimant’s  failure  to  appear  at  the \nhearing  and  his  failure  to  respond  to  respondents’  motion,  I  find  that  respondents’ \nmotion to dismiss this claim should be and here by is granted for failure to prosecute the \nclaim. This dismissal is without prejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2321,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H500021 SEAN KURZ, Employee CLAIMANT FAMILY DOLLAR STORES, Employer RESPONDENT SEDWICK CLAIMS MANAGEMENT, Carrier RESPONDENT OPINION FILED SEPTEMBER 24, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:36:43.150Z"},{"id":"alj-H404757-2025-09-24","awccNumber":"H404757","decisionDate":"2025-09-24","decisionYear":2025,"opinionType":"alj","claimantName":"David Nettles","employerName":"Atwood Distributing","title":"NETTLES VS. ATWOOD DISTRIBUTING AWCC# H404757 September 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/NETTLES_DAVID_H404757_20250924.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NETTLES_DAVID_H404757_20250924.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404757 \nDAVID E. NETTLES, EMPLOYEE     CLAIMANT \n \nATWOOD DISTRIBUTING, LP \nEMPLOYER          RESPONDENT \n \nZURICH AMERICAN INSURANCE, \nCOMPANY OF ILLINOIS, Insurance Carrier    RESPONDENT \n \nGALLAGHER BASSETT SERVICES INC., \nTHIRD PARTY ADMINISTRATOR     RESPONDENT \n \nOPINION AND ORDER FILED SEPTEMBER 24, 2025 \nThe Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, was held on September 16, 2025. \nClaimant waived his appearance through his attorney Laura Beth York, of Little \nRock, Arkansas. \nRespondents were represented by Rick Behring, Jr., of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 16\nth\n day of September, 2025, \nin Little  Rock,  Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute \npursuant  to  Arkansas  Code  Ann.  11-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Commission, which has recently been renamed 11 C.A.R. 25-110(d) and \nwill  be  referred  to  by  that  name  in  the  remainder  of  this  opinion. The  claimant  was \nrepresented by Laura Beth York and waived his right of appearance as long as the matter \nwas dismissed without prejudice. The respondents were represented by Rick Behring Jr. \nof Little Rock, Arkansas.  \n A  Form AR-C was  filed  by  the  Claimant through  his  attorney on July 30, 2024, \nalleging injuries to his left hip, which occurred on or about July 9, 2024. As reflected on \n\nDAVID E. NETTLES – H404757 \n2 \n \nthe  Form  AR-2  filed  with  the  Commission,  the  Respondents  accepted  the  claim  as \ncompensable.  The  Claimant  reached  maximum  medical  improvement  on  January  23, \n2025, and has returned to work for the Respondent. \n As reflected in the Agreed Order that was entered with the Commission on August \n19, 2025, the parties resolved a dispute concerning temporary partial disability benefits.  \nWith  resolution  of  this  dispute,  the  Respondents  have  provided  all  reasonable  and \nnecessary medical care to date and the appropriate indemnity benefits. There is no longer \nany issue in dispute and the claim was returned to general files.  \nA Motion to Dismiss And Incorporated Brief in Support was filed on September 5, \n2025,  requesting  that  the matter  be  dismissed  without  prejudice pursuant  to  11  C.A.R. \n§25 -110(d) of the Arkansas Workers’ Compensation Commission for failure to prosecute \nor in the alternative that the matter be dismissed without prejudice pursuant to A.C.A. 11-\n9-702 (a)(4) and (D) which provides for dismissal of a claim if no bona fide request for a \nhearing  has  been  made  within  six  (6)  months  of  the  filing  of  his  claim. The  Claimant \nthrough  his  attorney  waived  his  right  of  appearance  and  did  not  object  to  the \nRespondent’s Motion to Dismiss without prejudice.   \n After proper notice, a hearing was held on September 16, 2025, and the claimant \nthrough his attorney, waived his right to appear. The Respondents were represented by \nRick Behring, Jr., who requested that the matter be dismissed pursuant to 11 C.A.R. §25-\n110(d) of the Arkansas Workers’ Compensation Commission or A.C.A. 11-9-702 (a)(4) \nand (D). \n \n\nDAVID E. NETTLES – H404757 \n3 \n \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion to Dismiss without prejudice pursuant to 11 C.A.R. §25-110(d) of the Arkansas \nWorkers’ Compensation Commission.   \nIT IS SO ORDERED. \n                \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":3748,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404757 DAVID E. NETTLES, EMPLOYEE CLAIMANT ATWOOD DISTRIBUTING, LP EMPLOYER RESPONDENT ZURICH AMERICAN INSURANCE, COMPANY OF ILLINOIS, Insurance Carrier RESPONDENT GALLAGHER BASSETT SERVICES INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION AND ORDER FILE...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":["hip"],"fetchedAt":"2026-05-19T22:36:45.229Z"},{"id":"alj-H500703-2025-09-24","awccNumber":"H500703","decisionDate":"2025-09-24","decisionYear":2025,"opinionType":"alj","claimantName":"Cody Whittle","employerName":"Pipelife Jet Stream","title":"WHITTLE VS. PIPELIFE JET STREAM AWCC# H500703 September 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WHITTLE_CODY_H500703_20250924.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WHITTLE_CODY_H500703_20250924.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H500703 \n \nCODY WHITTLE, Employee CLAIMANT \n \nPIPELIFE JET STREAM, Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED SEPTEMBER 24, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents  represented  by JASON  M.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On  February  25,  2025,  Form  AR-C  was  filed  by  attorney  Mark  Peoples  on \nclaimant’s  behalf alleging  an  injury  on September  12,  2024,  and  requesting  various \ncompensation benefits. On June 12, 2025, Attorney Peoples’ Motion to Withdraw was \ngranted  by  an  Order  filed  by  the  Full  Commission.  Thereafter,  on  June  20,  2025, \nrespondents  filed  a  motion  to  dismiss  this  claim  contending  that  claimant  had  failed  to \nprosecute his claim.  \n A hearing was scheduled on respondents’ Motion to Dismiss for September 17, \n2025. Notice of the hearing was sent to claimant at his last known address by certified \n\nWhittle – H500703 \n \n-2- \nmail  and  the  notice  was  returned  as  “Unclaimed”.  Claimant  did  not  appear  at  the \nhearing. \n Pursuant to 11 CAR § 25-110 (d) upon meritorious application to the Commission \nfrom  a  party  requesting  that  the  claim  be  dismissed  for  want  of  prosecution,  the \nCommission  may,  upon  reasonable  notice  to  all  parties,  enter  an  order  dismissing  the \nclaim for want of prosecution. \n After  my  review  of  respondents’  motion,  claimant’s  failure  to  appear  at  the \nhearing or to respond to respondents’ motion, as well as all other matters presented, I \nfind  that  claimant  has  failed  to  prosecute  his  claim  and  therefore  find  that  it  should \ndismissed pursuant to 11 CAR § 25-110 (d). This dismissal is without prejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2202,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H500703 CODY WHITTLE, Employee CLAIMANT PIPELIFE JET STREAM, Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED SEPTEMBER 24, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:36:47.303Z"},{"id":"alj-H406856-2025-09-22","awccNumber":"H406856","decisionDate":"2025-09-22","decisionYear":2025,"opinionType":"alj","claimantName":"Artem Kutsenkov","employerName":"Custom Aircraft Cabinets Inc","title":"KUTSENKOV VS. CUSTOM AIRCRAFT CABINETS INC. AWCC# H406856 September 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Kutsenkov_Artem_H406856_20250922.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Kutsenkov_Artem_H406856_20250922.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H406856 \n \nARTEM KUTSENKOV, \nEMPLOYEE                                                                                                              CLAIMANT \n \nCUSTOM AIRCRAFT CABINETS INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nBRIDGEFIELD EMPLOYERS INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nSUMMIT CONSULTING, LLC., \nTPA                                                                                                                        RESPONDENT \n \n \n \nOPINION FILED SEPTEMBER 22, 2025 \n \nHearing conducted on Tuesday, August 26,  2025,  before  the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Mr. Artem Kutsenkov, Pro Se, of Searcy, Arkansas.  \n \nThe Respondents  were represented by Mr. Guy  Alton  Wade,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non June  9,  2025.    A  hearing  on  the  motion  was  conducted  on August  26,  2025,  in Little  Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as  a paint  technician.  The  date  for \nClaimant’s alleged injury was on April 24, 2024. He reported his injury to Respondent/Employer \non the  same  day  as  the  incident. Respondents  admitted into  the  record Respondents’ Exhibit 1, \npleadings, and correspondence, consisting of 8 pages. The Commission has admitted into evidence \n\nKUTSENKOV, AWCC No. H406856 \n \n2 \n \nCommission  Ex. 1, correspondence,  and  U.S.  Mail  return  receipts,  consisting  of 7 pages, as \ndiscussed infra. \nThe record reflects on October 18, 2024, a Form AR-C was filed with the Commission by \nClaimant purporting that Claimant sustained work-related injuries to his hands. On October 25, \n2024, a Form AR-1 was filed with the Commission noting that Claimant had a rash on both of his \nhands. On October  25,  2024,  and  again  on November 1,  2024, a Form  AR-2  was  filed by \nRespondents denying compensability.  \nOn June  9,  2025, Respondents filed  a  Motion  to  Dismiss due  to Claimant’s failure to \nprosecute his claim. The Claimant was sent, on June 13, 2025, notice of the Motion to Dismiss, \nvia certified and regular U.S. Mail, to his last known address. The certified motion notice was not \nclaimed by Claimant as noted on the July 1, 2025, return receipt. This notice sent regular U.S. Mail \ndid  not  return  to  the  Commission. The  Claimant  did not respond  to  the  Motion,  in  writing,  as \nrequired. Thus,  in  accordance  with  applicable  Arkansas  law,  the  Claimant  was  mailed  due  and \nproper legal notice of Respondents’ Motion to Dismiss hearing date at his current address of record \nvia the United States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, \nand regular First-Class Mail, on July 10, 2025. The certified notice was not claimed as noted by \nthe July 25, 2025, return receipt. The hearing notice sent regular First-Class was not returned to \nthe  Commission. The  hearing  took  place  on August  26,  2025.  And  as  mentioned  before,  the \nClaimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n\nKUTSENKOV, AWCC No. H406856 \n \n3 \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the August 26, 2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under 11 C.A.R. §25-110(d) (formerly AWCC Rule \n099.13).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §25-110(d) provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with 11 C.A.R. §25-110, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. The certified hearing notice was \nnot claimed by Claimant, per the return postal notice bearing the July 25, 2025, date. However, \nthe hearing notice sent regular First-Class mail was not returned to the Commission. The Claimant \nis responsible for updating his address with the Commission. Thus, I find by the preponderance of \nthe evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §25-110 allows the Commission, upon meritorious application, to \ndismiss an action pending before it due to a want of prosecution. The Claimant filed his Form AR-\nC on October 18, 2024. Since then, he has failed to request a bona fide hearing. Therefore, I do \n\nKUTSENKOV, AWCC No. H406856 \n \n4 \n \nfind by the preponderance of the evidence that Claimant has failed to prosecute his claim by failing \nto request a hearing. Thus, Respondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      _______________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6110,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H406856 ARTEM KUTSENKOV, EMPLOYEE CLAIMANT CUSTOM AIRCRAFT CABINETS INC., EMPLOYER RESPONDENT BRIDGEFIELD EMPLOYERS INS. CO., CARRIER RESPONDENT SUMMIT CONSULTING, LLC., TPA RESPONDENT OPINION FILED SEPTEMBER 22, 2025 Hearing conducted on Tuesday, August 26, ...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:36:36.947Z"},{"id":"alj-H300913-2025-09-22","awccNumber":"H300913","decisionDate":"2025-09-22","decisionYear":2025,"opinionType":"alj","claimantName":"Lakenya Young","employerName":"City Of Osceola","title":"YOUNG VS. CITY OF OSCEOLA AWCC# H300913 September 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Young_Lakenya_H300913_20250922.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Young_Lakenya_H300913_20250922.pdf","fullText":"`BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300913 \n \n \nLAKENYA D. YOUNG, EMPLOYEE CLAIMANT \n \nCITY OF OSCEOLA, \n SELF-INSURED EMPLOYER RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED SEPTEMBER 22, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on September  19, \n2025, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Mary K. Edwards, Attorney at Law, North Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on September 19, 2025, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  were Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”) and  Respondents’  Exhibit  1, \nforms, pleadings,  and correspondence  related  to  this  claim,  consisting  of 22 and \n12 pages, respectively. \n\nYOUNG – H300913 \n \n2 \n \n The record shows the following procedural history: \n Per the First Report of Injury or Illness that was filed on February 10, 2023, \n2025,  Claimant  purportedly  suffered a fractured right  ankle at  work  on April  17, \n2024, when she slipped on ice and fell while reading water meters.  According to \nthe  Form  AR-2  that  was filed  on February  16,  2023, Respondents accepted  the \nclaim as compensable and paid medical and indemnity benefits pursuant thereto. \n On July 15,  2024, through  then-counsel  Mark  Peoples, Claimant  filed  a \nForm  AR-C.    Therein, she  requested  the  full  range  of  additional  benefits  in \nconnection    with    her    right    ankle    injury.     In    electronic    correspondence \naccompanying this  filing,  Peoples wrote:  “I  am  not  asking  for  a  hearing  at  this \ntime.”  In  response  to this,  Respondents  sent  a  letter to  the  Commission  on  July \n17, 2024, reiterating that they had accepted the claim. \n On July 16, 2024, Claimant through Peoples requested that she be granted \na  one-time  change  of  physician  to  Dr.  Michael  Haughey.   However,  this  request \nwas withdrawn on December 10, 2024. \n Peoples moved  to  withdraw  from  his  representation  of  Claimant  on  March \n27, 2025.  In an Order entered on April 30, 2025, the Full Commission granted the \nmotion pursuant to AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until June \n26, 2025.  On that date, Respondents’ counsel entered her appearance and filed \nthe  instant  motion,  asking  for  dismissal  of  the  claim because Claimant  has not \n\nYOUNG – H300913 \n \n3 \n \nmade a bona fide hearing request on the claim since its filing.  Also on June 26, \n2025,  my  office wrote  Claimant,  asking  for  a  response  to  the  motion within  20 \ndays.  The letter was sent by first class and certified mail to the Osceola address \nfor Claimant that was listed in the file and on her Form AR-C.  The certified letter \nwas returned to the Commission, unclaimed, on July 21, 2025; but the first-class \nletter was not returned.  Regardless, no response to the motion was forthcoming.  \nOn August  5,  2025,  a  hearing  on  the  Motion  to  Dismiss  was  scheduled  for \nSeptember  19,  2025,  at 1:00 p.m.  at  the  Craighead  County  Courthouse  in \nJonesboro.   The  certified  mailing  of  the Notice of  Hearing  to  Claimant was \nreturned to the Commission, unclaimed, on September 2, 2025; but the first-class \nmailing was not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under both AWCC R. 099.13 (now codified at 11 \nC.A.R. § 25-110(d)) and Ark. Code Ann. § 11-9-702(d) (Repl. 2012). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nYOUNG – H300913 \n \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under 11 C.A.R. § 25-110(d). \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) (formerly AWCC R. 099.13) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996).  In turn, Ark. Code Ann. § 11-9-702(d) (Repl. 2012) reads: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof  the  claim  within  limitation  periods  specified  in  subsection  (b)  of \nthis section. \n \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \n\nYOUNG – H300913 \n \n5 \n \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no steps to pursue \nit  (including  appearing  at  the  September  19,  2025,  hearing to  argue  against  its \ndismissal) since the filing of her aborted change-of-physician request on July 16, \n2024.  Thus, the evidence preponderates that dismissal of the claim is warranted \nunder 11 C.A.R. § 25-110(d).  Because of this finding, the applicability of § 11-9-\n702(d) is moot and will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \n\nYOUNG – H300913 \n \n6 \n \nthe  foregoing,  I agree  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8146,"preview":"`BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H300913 LAKENYA D. YOUNG, EMPLOYEE CLAIMANT CITY OF OSCEOLA, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, THIRD-PARTY ADM’R RESPONDENT OPINION FILED SEPTEMBER 22, 2025 Hearing before Administrative Law Judge O. Milton Fine II on September 19, ...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:36:39.015Z"},{"id":"alj-H502654-2025-09-19","awccNumber":"H502654","decisionDate":"2025-09-19","decisionYear":2025,"opinionType":"alj","claimantName":"Reginald Davis","employerName":"Paschall Truck Lines, Inc","title":"DAVIS VS. PASCHALL TRUCK LINES, INC. AWCC# H502654 September 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DAVIS_REGINALD_H502654_20250919.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVIS_REGINALD_H502654_20250919.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H502654 \n \n \nREGINALD D. DAVIS, EMPLOYEE CLAIMANT \n \nPASCHALL TRUCK LINES, INC., \n EMPLOYER RESPONDENT \n \nGREAT AMERICAN ALLIANCE INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED SEPTEMBER 19, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on September  19, \n2025, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, Ryburn Law Firm, Attorneys \nat Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on September 19, 2025, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”), forms,   pleadings,   and \ncorrespondence related to this claim, consisting of 22 pages. \n\nDAVIS – H502654 \n \n2 \n \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness that was  filed on April  29,  2025, \nClaimant  purportedly  suffered an  injury to  his  left  shoulder at  work  on April  17, \n2024, when wind caught the trailer door that he had been holding.  According to \nthe Form AR-2 that was filed on April 30, 2025, Respondents accepted the claim \nas compensable and paid medical and indemnity benefits pursuant thereto. \n On May 2, 2025, he requested his one-time change of physician.  Nothing \nin  the  file,  however,  reflects  that  the  request  was  processed.  Respondents’ \ncounsel entered his appearance on December 20, 2024. \n On June 22, 2025, Claimant filed a Form AR-C.  Therein, Claimant stated \nthat he also hurt his neck in the alleged incident.  When marking the benefit(s) he \nwas seeking, he checked “Other” and added:  “Appeal MMI and IR and jurisdiction \nof claim.”  He attached a typewritten statement to the form.  Respondents’ counsel \nentered  his  appearance  before  the  Commission  on  June  24,  2025.   On  July  18, \n2025, Claimant wrote the Commission: \nI   am   requesting   a   mediation   hearing   to   determine   whether \nArkansas has jurisdiction of this claim[.]  [A]attached is [a] Location \nof  Employment  stating  all  work[-]related  injuries  will  be  under \nKentucky Workers['] Compensation. \n \nHowever,  the  Legal  Advisor  Division  declined  to  conduct  the  mediation,  noting \nthat  the  claim  was  still  before  the  Medical  Cost  Containment  Division  to  process \nthe change-of-physician request.  The request ended up not getting addressed on \nthe basis that the Claimant elected to pursue relief in Kentucky instead.  See infra. \n\nDAVIS – H502654 \n \n3 \n \n \n The record reflects that nothing further took place on the claim until July 18, \n2025.  On that date, Respondents filed the instant motion, asking for dismissal of \nthe claim because Claimant has indicated that “he has taken steps to file his claim \nin Kentucky . . . [and] has no interest in pursuing his claim in Arkansas.”  The file \nwas  assigned  to  me on July  29,  2025;  and on  July 30,  2025,  my  office wrote \nClaimant, asking for a response to the motion within 20 days.  The letter was sent \nby  first  class and  certified mail  to the Bay  City,  Texas address for Claimant that \nwas listed  in  the  file  and  on  his Form AR-C.  The  certified  letter was  returned  to \nthe  Commission,  unclaimed, on September 2,  2025; but the  first-class  letter  was \nnot returned.  On August 3, 2025, Claimant filed a response to the motion, stating \nthat   he   was   joining   in   the   request   that   the   claim   be   dismissed   because \nRespondents “acted in bad faith” in filing the First Report of Injury or Illness in \nArkansas, when the matter should have been brought in Kentucky. \n On August 5, 2025, a hearing on the Motion to Dismiss was scheduled for \nSeptember  19,  2025,  at 12:30 p.m.  at  the  Craighead  County  Courthouse  in \nJonesboro.   The  certified  mailing  of  the Notice of  Hearing  to  Claimant was \nreturned to the Commission, unclaimed, on September 9, 2025; but the first-class \nmailing was not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \n\nDAVIS – H502654 \n \n4 \n \ncounsel  and  argued  for  dismissal  under AWCC  R.  099.13 (now  codified  at  11 \nC.A.R. § 25-110(d)). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under 11 C.A.R. § 25-110(d). \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under 11 C.A.R. § 25-110(d). \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) (formerly AWCC R. 099.13) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \n\nDAVIS – H502654 \n \n5 \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant  has  failed  to  pursue  his claim  because  he failed  to appear  at  the \nSeptember  19,  2025, hearing  to  argue  against its dismissal.   This  stands  to \nreason, since he  has  expressed  his  agreement  with the dismissal  because  he \nwishes to pursue relief before the Kentucky Workers’ Compensation Commission \ninstead.   Thus,  the  evidence  preponderates  that  dismissal of  the  claim is \nwarranted under the above-referenced authority. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \n\nDAVIS – H502654 \n \n6 \n \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \nthe  foregoing,  I agree  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8284,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H502654 REGINALD D. DAVIS, EMPLOYEE CLAIMANT PASCHALL TRUCK LINES, INC., EMPLOYER RESPONDENT GREAT AMERICAN ALLIANCE INS. CO., CARRIER RESPONDENT OPINION FILED SEPTEMBER 19, 2025 Hearing before Administrative Law Judge O. Milton Fine II on September 19, 2025,...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["shoulder","neck"],"fetchedAt":"2026-05-19T22:36:32.787Z"},{"id":"alj-H405441-2025-09-19","awccNumber":"H405441","decisionDate":"2025-09-19","decisionYear":2025,"opinionType":"alj","claimantName":"William Wallis","employerName":"Georgia Pacific, LLC","title":"WALLIS VS. GEORGIA PACIFIC, LLC AWCC# H405441 September 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WALLIS_WILLIAM_H405441_20250919.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALLIS_WILLIAM_H405441_20250919.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H405441 \n \n \nWILLIAM K. WALLIS,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nGEORGIA PACIFIC, LLC,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nOLD REPUBLIC INS. CO./ \nESIS, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED SEPTEMBER 19, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Thursday, September 18, 2025, before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in \nMonticello, Drew County, Arkansas. \n \nThe claimant is represented by the Honorable Kenneth A. Olsen, Olsen Law Firm, LTD, Bryant, \nSaline County, Arkansas, who waived appearance at the hearing. \n \nThe respondents were represented by the Honorable Rick Behring, Jr., Newkirk & Jones, Little \nRock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Thursday, September 18, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and 11 C.A.R. Section 25-110(d) (Code of AR Regulations 2025) (formerly cited \nas Commission Rule 099.13 (2025 Lexis Replacement). \n         The respondents filed a motion to dismiss this claim without prejudice for lack of prosecution \nand brief in support (MTD) on April 23, 2025. (Respondents’ Exhibit 1 at 3-5). In accordance with \n\nWilliam K. Wallis, AWCC No. H405441 \n2 \n \nthe  applicable  law both the  claimant and  his  attorney provided  due  and  legal  notice  of both the \nrespondents’ MTD as well as the date, time, and place of the MTD hearing which the claimant \nreceived on August 5, 2025. (Commission Exhibit 1). Thereafter, the claimant’s attorney sent a \nletter to the Commission dated August 11, 2025, advising on the claimant’s behalf that he did not \nobject to the respondents’ MTD and waiving his appearance at the subject hearing. (Comms’n Ex. \n2; RX1 at 8). \n        The  respondents’  MTD  and  brief  in  support  thereof  contains  a  thorough  and  accurate \nrecitation of all the relevant facts; therefore, I hereby incorporate by reference the relevant facts in \nthis opinion as if set forth word-for-word herein. (RX1 at 3-5). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute his claim, or to request a \nhearing within the last six (6) months and that he does not object to the respondents’ MTD. \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \n\nWilliam K. Wallis, AWCC No. H405441 \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of both the respondents’ MTD without prejudice \nand brief in support filed with the Commission on April 23, 2025, as well as due and legal \nnotice of the date, time, and place of the subject hearing, the claimant’s attorney advised \non the claimant’s behalf that he did not object to the MTD and he waived appearance at \nthe subject hearing. \n \n3. The claimant has not requested a hearing within the last six (6) months and has taken no \naction(s) to raise any issues related to or to prosecute this claim.  \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwithout prejudice filed April 23, 2025, should be and hereby is GRANTED; and this claim \nis dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. \nCode  Ann. Section  11-9-702(a)  and  (b) and 11 C.A.R. 25-110(d)  (formerly  cited  as \nCommission Rule 099.13). \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n       IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n                                                                                \n\nWilliam K. Wallis, AWCC No. H405441 \n4","textLength":5714,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H405441 WILLIAM K. WALLIS, EMPLOYEE CLAIMANT GEORGIA PACIFIC, LLC, EMPLOYER RESPONDENT OLD REPUBLIC INS. CO./ ESIS, INC. CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 19, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:36:34.904Z"},{"id":"alj-H407977-2025-09-18","awccNumber":"H407977","decisionDate":"2025-09-18","decisionYear":2025,"opinionType":"alj","claimantName":"Garrison Canales","employerName":"Patriot Tire & Oil, LLC","title":"CANALES VS. PATRIOT TIRE & OIL, LLC AWCC# H407977 September 18, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CANALES_GARRISON_H407977_20250918.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CANALES_GARRISON_H407977_20250918.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H407977 \n \n \nGARRISON CANALES, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nPATRIOT TIRE & OIL, LLC,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nTECHNOLOGY INSURANCE COMPANY, \nAMTRUST NORTH AMERICA, \nINSURANCE CARRIER/TPA                                                                               RESPONDENT                                                                      \n          \n                                                                                              \nOPINION FILED SEPTEMBER 18, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Hot Springs, Garland County, \nArkansas. \n \nThe Claimant, pro se, failed to appear at the dismissal hearing.         \n \nRespondents represented  by the Honorable Jacob  Denson, Attorney  at  Law, North Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on August 29, 2025, in the above-referenced matter pursuant to Dillard \nv. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), to determine whether \nthis case should be dismissed for failure to prosecute under the provisions of Ark. Code Ann. §11-\n9-702 (Repl.  2012), and Arkansas  Workers’ Compensation Commission  Rule  099.13 (now \ncodified at 11 C.A.R. § 25-110(d)). \nAppropriate notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.   \nNo testimony was taken. \nThe record consists of the transcript of August 29, 2025, hearing and the documents held \ntherein.  Commission’s Exhibit 1 consists of eight (8) pages, which has been marked accordingly, \n\nCANALES – H407977 \n \n2 \n \nand the Respondents offered into evidence an exhibit consisting of one (1) numbered page, and it \nwas thus marked Respondents’ Exhibit 1.  \n                                                                Background \n The procedural history of this claim is as follows:  \n The Claimant filed a Form AR-C with the Commission on December 10, 2024, alleging \nthat he sustained a compensable injury on November 26, 2024, while working for the respondent-\nemployer.  Per this document, the Claimant was allegedly injured while swinging a hammer and \nhit himself in the shin.   The claim information section of the Form AR-C shows that the Claimant \nrequested  only additional workers’ compensation benefits.    These  benefits  included  a  claim  for \nadditional medical expenses, and other benefits of loss of income.  \n  The Respondents’ claims adjuster filed a Form AR-2, with the Commission on December \n13, 2024, accepting the claim pending further investigation. The adjuster filed an amended Form \nAR-2, with the Commission on March 4, 2025, controverting the claim. \n Subsequently,  there was no  action whatsoever taken on  the  part  of  the  Claimant  to \nprosecute his claim or otherwise pursue settlement of it or even resolve it.  \nTherefore, on or about June 30, 2025, the Respondents filed a letter motion to dismiss for \na lack of prosecution, with the Commission.  The Respondents notified the Claimant of said motion \nby sending a copy of it via the United States Postal Service.      \nSubsequently, on July 1, 2025, my office sent a letter-notice informing the Claimant of the \nRespondents’ motion to dismiss, and a deadline of twenty (20) days for filing a written response.  \nThis  letter  was  sent  via  first-class  and  certified  mail.   Information  received  by  the  Commission \nfrom  the  United  States  Postal  Service confirms that  they  were  able  to  deliver  this  item to  the \n\nCANALES – H407977 \n \n3 \n \nClaimant’s home on July 3.  However, the notice sent by first-class mail has not been returned to \nthe Commission.   \n Per a Hearing Notice generated on July 23, 2025, my office notified the parties that this \nclaim had been set for a hearing on the Respondents’ motion to dismiss.  Said dismissal hearing \nwas scheduled for August 29, at 9:30 a.m., at the Transportation Depot, in Hot Springs, Arkansas.  \nThis hearing notice was sent via first-class mail and certified mail. \nInformation received from the Postal Service shows that this item was also “undeliverable” \nand went “unclaimed.” Said notice was returned to the Commission on August 19, 2025.  Yet the \nnotice sent via first-class mail has not been returned to the Commission.  Based on the foregoing, \nthe evidence preponderates that the Claimant received notice of the dismissal hearing.     \nA hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \ndid not appear for the hearing.  However, the Respondents appeared through their attorney.  Their   \ncounsel essentially argued that the Claimant has failed to timely prosecute his claim for workers’ \ncompensation benefits.  As such, the Respondents moved that this claim be dismissed for failure \nto prosecute under Ark. Code Ann. §11-9-702, and Commission Rule 099.13 (now codified at 11 \nC.A.R. § 25-110(d)). \nAdjudication   \nTherefore, the statutory provision and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) states:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \n Additionally, Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110(d)) \n\nCANALES – H407977 \n \n4 \n \n reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute his claim since the filing of the Form \nAR-C more than six (6) months ago; nor has he resisted the motion to dismiss his claim despite \nhaving received notice of the dismissal hearing.   \nHere,  the  evidence  preponderates  that  the  Claimant  has clearly failed  to  prosecute  this \nclaim for workers’ compensation benefits.  Furthermore,  I  am  convinced  that  the  Claimant  has \nabandoned his claim.   \n Therefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant to Ark. Code \nAnn.§11-9-702, and Commission Rule 099.13(now codified at 11 C.A.R. § 25-110(d)), this claim \nfor workers’ compensation benefits is  hereby  respectfully dismissed without  prejudice to  the \nrefiling of  it within  the limitation  period specified under the Arkansas Workers’ Compensation \nAct (the “Act”). \n\nCANALES – H407977 \n \n5 \n \n                           FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. The Claimant filed a Form AR-C in December 2024.  Since this time, the \nClaimant  has  not  requested  a  hearing  or demonstrated that  he  wishes  to \npursue this claim for workers’ compensation benefits.  \n \n3. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n4. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The evidence  preponderates  that  the Respondents’ motion to dismiss this \nclaim for lack of prosecution is well founded, and should be hereby granted, \nwithout  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and  Commission  Rule \n099.13(now codified at 11 C.A.R. § 25-110(d)), to the refiling of it within \nthe limitation period specified by law.  \n \n                                                           ORDER \n \nBased  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’ compensation benefits.  This dismissal is made pursuant to the provisions of Ark. Code  \nAnn. §11- 9-702, and Commission Rule 099.13(now codified at 11 C.A.R. § 25-110(d)), without \nprejudice to the refiling of this claim within the limitation period specified under the Act. \nIT IS SO ORDERED. \n \n     \n                                                          ______________________________ \n                                                                                                CHANDRA L. BLACK \n                                                                                                Administrative Law Judge \n                                                                                                \n                                                                                            \n\nCANALES – H407977 \n \n6","textLength":10364,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H407977 GARRISON CANALES, EMPLOYEE CLAIMANT PATRIOT TIRE & OIL, LLC, EMPLOYER RESPONDENT TECHNOLOGY INSURANCE COMPANY, AMTRUST NORTH AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 18, 2025 Hearing held before Administrative Law Judge Cha...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:36:28.610Z"},{"id":"alj-H502061-2025-09-18","awccNumber":"H502061","decisionDate":"2025-09-18","decisionYear":2025,"opinionType":"alj","claimantName":"Brittany Kanu","employerName":"University Of Arkansas For Medical Sciences/uams","title":"KANU VS. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES/UAMS AWCC# H502061 September 18, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KANU_BRITTANY_H502061_20250918.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KANU_BRITTANY_H502061_20250918.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.: H502061 \n \nBRITTANY KANU,  \nEMPLOYEE                                                                                                              CLAIMANT                                                    \n \nUNIVERSITY OF ARKANSAS FOR MEDICAL  \nSCIENCES/UAMS,   \nEMPLOYER                                                                                                         RESPONDENT  \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nCARRIER/TPA                                                                                                    RESPONDENT                                                                                  \n                                               \n \nOPINION FILED SEPTEMBER 18, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nClaimant/Pro Se failed to appear at the hearing.      \n \nRespondents represented by The Honorable Robert H. Montgomery, Attorney at Law, Little \nRock, Arkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on the Respondents’ motion to dismiss want of prosecution, on August \n27,  2025, this claim for workers’ compensation benefits pursuant  to Dillard  v.  Benton  County \nSheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004).  Here, the sole issue for determination \nis whether this claim should be dismissed due to the Claimant’s failure to timely prosecute it under \nArk. Code Ann. §11-9-702 (Repl. 2012), and/or Arkansas Workers’ Compensation Commission \nRule 099.13 (now codified at 11 C.A.R. § 25-110 (d)).  \n      The record consists of the hearing transcript of the August 27, 2025.  The Respondents \noffered into evidence one exhibit, a Respondents’ Documentary Exhibit, consisting of eleven (11) \nnumbered  pages,  and  a cover  sheet  for  a  total  of  twelve (12) pages.    Said  exhibit was marked \nRespondents’ Exhibit 1.   Also, Commission’s Exhibit 1 encompasses a Documentary Exhibit \n\nKANU – H502061 \n \n2 \n \ntotaling five (5) pages was admitted into evidence.  Both exhibits were introduced into evidence \nwithout objection.      \n No testimony was taken at the hearing. \n          DISCUSSION \nThe Claimant  alleged  that  she  sustained  a  compensable  injury  while  working  for  the \nrespondent-employer  on  or  about  December  4,  2024.    She  alleged  that  she  sustained  an  alleged \ninjury due to exposure to dust.     \nOn or  about April  3,  2025, the Respondents filed  a  Form  AR-2 with  the  Commission \ncontroverting this claim.  Specifically, the Respondents asserted: “Respondents are denying claim \nbecause there are no objective medical findings of an injury.”   \nSince the assertion of an injury, the Claimant has failed to make a bona fide request for a \nhearing on the merits before the Commission in this matter.  Hence, the Claimant has continued to \nnot prosecute  or  otherwise  pursue  her  claim.   However,  she  requested  a  hearing  and  then  she \nwithdrew her request for a hearing on July 9, 2025.  The Claimant stated that she does not wish to \ncontinue with the claim because she has not been able to retain legal counsel.    \nOn July 22, 2025, the Respondent filed with the Commission, a Motion to Dismiss, with a \ncertificate of service to the Claimant.  Per this document, the Respondents certified that they had \nserved a copy of the foregoing pleading to the Claimant by electronic mail.     \nTherefore, on July 24, 2025, my office sent a Notice of Hearing to the parties letting them \nknow that  a  hearing was  scheduled for Wednesday,  at 1:30 p.m.,  on August  27,  2025,  on  the \nRespondents’ motion to dismiss.  Said  hearing  was scheduled to  be  held at  the  Commission,  in \nLittle Rock. \n\nKANU – H502061 \n \n3 \n \nA hearing was held on the Respondents’ motion for dismissal as scheduled.   During the \nhearing,  counsel for  the  Respondents moved that  the  claim  be  dismissed due  to  a  lack  of \nprosecution under the provisions of Ark. Code Ann. §11-9-702 and Rule 099.13 (now codified at \n11 C.A.R. § 25-110 (d)).   \nAlthough the Claimant did not file a formal claim via a Form AR-C, I find that her letter \nwherein she asked for a hearing is sufficient to establish a claim for initial workers’ compensation \nbenefits.      \nNevertheless, my review of the record shows that more than six (6) months have passed \nsubsequent  to the  filing  of  the  Form  AR-C  for  a  claim  of workers’ compensation benefits.  \nHowever, despite  being  given  proper  notice  of  the  dismissal  hearing  in  the  manner  prescribed \nunder the law, the Claimant did not appear at the hearing to object to the dismissal of her claim \nafter indicating that she wishes to have it dismissed.   \nUnder these circumstances, I am persuaded that the Claimant has had ample time to pursue \nher claim for  benefits; but she has  failed  to  do  so.  Therefore,  based  on my  review  of  the \ndocumentary  evidence,  and  all  other  matters  properly  before  the  Commission,  I  find  that  the \nRespondents’ motion to dismiss the within claim should be granted pursuant to Rule 099.13 (now \ncodified at 11 C.A.R. § 25-110 (d)).   \n Accordingly, this claim is hereby dismissed without prejudice, to the refiling of it within \nthe limitation period specified by law. \n                                        Findings of Fact and Conclusions of Law \nOn the basis of the record as a whole, I hereby make the following findings of fact and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n\nKANU – H502061 \n \n4 \n \n \n2. The Claimant filed a letter claim for Arkansas workers’  compensation \nbenefits. \n \n3. Since this time, the Claimant has asked that her claim be dismissed.  \n \n4. On July 22, 2025, the Respondents filed with the Commission a Motion to \nDismiss. \n \n5. After notice of hearing was given to the parties in the manner as prescribed \nby  law,  a  hearing  was  held  on  the  Respondents’  motion  to  dismiss.  \nHowever, the Claimant did not appear at the hearing to object to her claim \nbeing dismiss and she has asked that her claim be dismissed.   \n \n6. Notice of the hearing was tried on all the parties in the manner prescribed \nby law. \n \n7. That the Respondents’ motion to dismiss is hereby granted pursuant to the \nprovisions  of Commission Rule  099.13 (now  codified  at  11  C.A.  R.§ 25-\n110 (d)), without prejudice, to the refiling of the claim within the specified \nlimitation period. \n \nORDER \nBased on the foregoing Findings of Fact and Conclusions of Law, I find that pursuant to \nRule 099.13 (now codified at 11 C.A.R. § 25-110 (d)).  This claim is hereby dismissed without \nprejudice, to the refiling within the limitation period specified by law.      \nIT IS SO ORDERED. \n   \n \n                                                                      ________________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":7150,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H502061 BRITTANY KANU, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES/UAMS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 18, 2025 Hearing held before Administrative Law Judge Chandra L. ...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:36:30.688Z"},{"id":"full_commission-H302335-2025-09-17","awccNumber":"H302335","decisionDate":"2025-09-17","decisionYear":2025,"opinionType":"full_commission","claimantName":"John Boman","employerName":"Central Moloney, Inc","title":"BOMAN VS. CENTRAL MOLONEY, INC AWCC# H302335 September 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Boman_John_H302335_20250917.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Boman_John_H302335_20250917.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H302335 \n  \nJOHN BOMAN, EMPLOYEE  CLAIMANT \n \nCENTRAL MOLONEY, INC, EMPLOYER RESPONDENT \n \nRISK MANAGEMENT RESOURCES, INC.,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED SEPTEMBER 17, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed June 10, 2025.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Commission has jurisdiction over this claim.  \n \n2. The stipulations as set forth above are accepted.  \n \n3. Because  the  claimant’s  post-accident   drug   screen   returned \npositive for marijuana metabolites, a presumption exists under Ark. \nCode  Ann.  §  11-9- 102(4)(B)(iv)  that  his  injury  was  substantially \noccasioned by the use of illegal drugs.  \n\n \nBOMAN - H302335  2\n  \n \n \n4. The claimant has failed to rebut the presumption that his injury was \nsubstantially  occasioned  by  the  use  of  illegal  drugs  and  has, \ntherefore, failed to prove by a preponderance of the evidence that \nhe suffered a compensable injury. \n \n5. Because of the finding above, the claims for medical and indemnity \nbenefits  associated  with  a  compensable  injury  are  moot  and  will \nnot be addressed.  \n \n6. The claim for a controverted attorney’s fee is also moot and will not \nbe addressed. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's June 10, \n2025 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n \n \n \n\n \nBOMAN - H302335  3\n  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2701,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H302335 JOHN BOMAN, EMPLOYEE CLAIMANT CENTRAL MOLONEY, INC, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 17, 2025 Upon review before the FULL COMMISSION in Littl...","outcome":"affirmed","outcomeKeywords":["affirmed:3","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.988Z"},{"id":"alj-H000250-2025-09-17","awccNumber":"H000250","decisionDate":"2025-09-17","decisionYear":2025,"opinionType":"alj","claimantName":"Darryl Payne","employerName":"Phillips Community College","title":"PAYNE VS. PHILLIPS COMMUNITY COLLEGE AWCC# H000250 September 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PAYNE_DARRYL_H000250_20250917.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PAYNE_DARRYL_H000250_20250917.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H000250 \n \nDARRYL G. PAYNE, EMPLOYEE       CLAIMANT \n \nPHILLIPS COMMUNITY COLLEGE,  \nSELF-INSURED EMPLOYER                   RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nTHIRD PARTY ADMINISTRATOR                      RESPONDENT \n \n \nOPINION FILED 17 SEPTEMBER 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 19 June 2025 in Helena/West Helena, Arkansas. \n \nThe claimant appeared pro se. \n \nMr. Robert Montgomery appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThis case is related to a stipulated compensable left leg injury that the claimant \nsustained by specific incident on 7 January 2020. Hearings were previously held on 30 \nMarch 2022 and 17 August 2023. Corresponding Opinions were issued on 22 June 2022 and \n14 November 2023. The claimant appealed the 14 November 2024 Opinion. On 28 May \n2024, the Full Commission filed its Opinion on the appeal, affirming in part and reversing \nin part the ALJ’s Opinion. In that Opinion, and relevant to the immediate matter before the \nCommission, the Full Commission found that the claimant was entitled to additional \nreasonable and necessary medical treatment for his compensable left leg injury. \nThe present matter was heard on 19 June 2025 in Helena/West Helena, Arkansas. \nThe parties participated in a prehearing telephone conference on 12 November 2024. A \nsubsequent Prehearing Order was admitted to the record without objection as \nCommission’s Exhibit No 1. Consistent with that Order, the parties agreed to the following: \n\nD. Payne- H000250 \n2 \n \nSTIPULATIONS \n1. The Arkansas Workers’ Compensation Commission (the Commission) has  \n  jurisdiction over this claim. \n \n2. The employer/employee/carrier relationship existed on 7 January 2020. \n \n3. This claim was previously litigated, with the relevant findings of the 14  \n  November 2024 ALJ Opinion and 28 May 2024 Full Commission Opinion  \n  controlling. \n \n4. The claimant previously sought additional treatment from Dr. [Stacy] Busby,  \n  which the Full Commission awarded. Dr. Busby has since, however, declined  \n  to continue a physician-patient relationship with the claimant. \n \n5. After providing the claimant with an MRI scan, the respondents arranged for \n  the claimant to be seen by Dr. [Jason] Stewart, an orthopedic surgeon. The  \n  claimant has refused to participate in care with Dr. Stewart. \n \nISSUES \n 1. Whether the claimant is entitled to additional medical benefits.  \n \n 2. Whether the claim should be dismissed for the claimant’s failure to prosecute  \n  his claim under AWCC Rule 13 (now codified at 11 C.A.R. § 25-110(d)). \n \nCONTENTIONS \n The parties’ contentions, as listed in their prehearing information filings, were \nincorporated by reference into the Prehearing Order. \n The claimant contends that his “need for surgery [has] already been litigated” and \n“Because after falling down a flight of stairs carrying computers, my leg is still not right. I \nfeel I was not compensated after those surgery and other ailments developed.” (sic) \n The respondents contend: \nClaimant has requested a hearing in his claim to address additional medical \ntreatment. On May 28, 2024, the Full Commission issued an Opinion which \ncontained, among other findings, a finding that the claimant proved his \nentitlement “to additional medical treatment to be provided by Dr. Busby”. \n(Full Comm. Opinion dated May 28, 2024, p.22). The respondents did not \nappeal the Full Commission decision and set about arranging an \nappointment for the claimant to be seen by Dr. Busby for “additional medical \ntreatment.” \n \n\nD. Payne- H000250 \n3 \n \nThe Respondents were advised by Dr. Busby’s office that due to prior \ninteractions with the claimant Dr. Busby would not see the Claimant again \nas a patient. The respondents were also informed by Dr. Busby’s office that \nthey would not schedule an appointment for the claimant to be seen there. \n(See attached letter dated June 27, 2024). Upon learning of Dr. Busby’s \nrefusal to see the claimant as a patient the Respondents arranged for \nclaimant undergo an MRI which was done on July 23, 2024. \n \nAfter the MRI was completed, the respondents then set about arranging an \nappointment with an orthopedic surgeon for evaluation of the MRI results, \netc. An IME appointment was arranged for the Claimant to be seen by Dr. \nStewart on August 26, 2024. The claimant was advised of the IME \nappointment, but he refused to attend the appointment with Dr. Stewart. The \nclaimant refused to attend the IME appointment and \nindicated he wanted a “regular doctor appointment.” The Respondents paid \nfor the IME appointment and were not given a full refund by Dr. Stewart’s \noffice. The Claimant then requested a hearing in this claim. \n \nThe Respondents contend that they have and are trying to provide the \nreasonably necessary medical treatment authorized by the Full Commission \nin their May 28, 2024 Opinion. The Claimant has been less than cooperative \nand has thwarted attempts to arrange medical appointments. The \nRespondents reserve the right to amend these contentions pending the \ncompletion of discovery. \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witness, \nobserving his demeanor, I make the following findings of fact and conclusions of law under \nACA § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The Law of the Case Doctrine applies to earlier Opinions issued on this claim. \n \n3. 11 C.A.R. § 25-110(d), formerly Commission Rule 099.13, provides for a dismissal of \n a claim for want of prosecution upon meritorious application to the Commission from \n either party and reasonable notice. \n \n4.  Reasonable notice of the hearing was provided to both parties. \n \n5. The respondents have not proven by a preponderance of the evidence that the \nclaimant has failed to prosecute this claim. \n \n6. Consistent with the Full Commission’s 28 May 2024 Opinion, the claimant remains \nentitled to additional treatment for his stipulated compensable left leg injury. \n \n\nD. Payne- H000250 \n4 \n \nIII.  ADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \nThe claimant testified on his own behalf and was the only witness. The record \nconsists of the hearing transcript and the following exhibits: Commission’s Exhibit No 1 (the \n19 November 2024 Prehearing Order); Claimant’s Exhibit No 1 (15 pages of miscellaneous \nscreenshots and pictures of documents); and Respondent’s Exhibit No 1 (one index page and \ntwelve pages of records). \nClaimant’s Testimony \nThe claimant’s testimony began with the following exchange: \nJudge:  ... the gist of things is that the respondents have tried to send you to \na doctor, an orthopedic surgeon, Dr. Stewart, for an IME [Independent \nMedical Evaluation], and you’ve said that you don’t want to be seen by Dr. \nStewart and you want to go to another doctor. Is that fair? \n \nClaimant:  Fair. \n \n\nD. Payne- H000250 \n5 \n \n[TR at 11-12.] The claimant’s refusal to participate in the IME was based on his belief that \nany medical opinions provided as a result of that examination would be unfair to him. \nJudge:  ... you were not going to go see Dr. Stewart for the IME and you \nvoiced the concerns you mentioned a moment ago, saying that if they—if they \norganized and that they were paying for it, that you didn’t think you would \nget fair review by the physician or fair results, and that, well, basically the \nodds were going to be against you to be able to get more help from them, and \nso that was kind of the basis for your not wanting to go... \n \nClaimant:  Yes, sir, absolutely. \n \n[TR at 15-16.] \n In its 28 May 2024 Opinion, the Full Commission found that the claimant was \nentitled to additional reasonable and necessary medical treatment from orthopedic surgeon \nDr. Stacy Busby for his stipulated compensable left leg injury. In the litigation preceding \nthat Opinion, there were competing medical opinions as to whether the claimant would \nbenefit from additional diagnostic or treatment options. Dr. Busby’s evaluation suggested \nthat the claimant could or would benefit from additional treatment. The respondents \nexplained that after the Full Commission’s Opinion granted additional medical treatment \nfrom Dr. Busby, Respondent Public Employee Claims Division (PECD) authorized an MRI \nfor the claimant’s left leg and attempted to coordinate further treatment with Dr. Busby. A \ncopy of a letter from PECD authorizing that treatment was provided by the respondents. \n[Resp. Ex. No 1 at 2.] But, “Dr. Busby said under no circumstances would she see him again, \nso that eliminated Dr. Busby as a possibility....” [TR at 18.] Dr. Busby’s refusal to see the \nclaimant and PECD’s subsequent attempts to coordinate treatment for the claimant were \nnoted in the respondents’ internal claims management system. PECD notified the claimant \nof the same via a letter dated 27 June 2024. [Resp. Ex. No 1 at 11-12.] \n After Dr. Busby terminated her provider-patient relationship with the claimant, \nPECD coordinated an IME with Dr. Jason Stewart, another orthopedic surgeon. They \n\nD. Payne- H000250 \n6 \n \nprovided payment for Dr. Stewart’s evaluation in advance of the claimant’s 26 August 2024 \nappointment. The claimant, though, refused to attend the appointment with Dr. Stewart. \n The bulk of the testimony was around the respondents’ attempt to provide what they \nconsidered to be reasonable and necessary treatment (by way of the IME with Dr. Stweart), \nin conformance with the Full Commission’s Opinion, and the claimant’s refusal to attend \nthe IME that had been scheduled for him with Dr. Stewart.  \nJudge:  ... the Commission said you were entitled to an appointment with Dr. \nBusby. They tried to arrange that, and Dr. Busby refused to see you anymore. \nWhatever reason she stopped, I don’t know. But they went ahead, sent you to \nan MRI, you showed up for that and got your results. They arranged for Dr. \nStewart to try to see you. They paid for that, and then you refused to \ncooperate with that. Is that accurate? \n \nClaimant:  Yeah. \n \n[TR at 29.] \n The claimant argues that he would be willing to see any doctor to continue obtaining \ntreatment for his compensable left leg injury. At the hearing he read a message he had \nwritten regarding his claim, stating, “I’ve been fighting for my disability since the first of \nthe year. I lost my brother three years back, and then I lost my uncle. I’m willing to go to \nanywhere workman’s comp wants me to go at this point where this chronic pain has took \nover my body.” [TR at 13.] \n The respondents’ position, on the other hand, was also made clear at the hearing: \nThe fact of the matter is Dr. Stewart was agreeable to seeing him. He elected \nnot to go and told everybody he wasn’t going to go. It didn’t matter what \ndoctor they picked. He wasn’t going. They paid $3,000 for him not to go to an \nappointment, and he basically for 13 months now has just attempted to direct \nhis own medical care in his workers’ comp claim. I would submit that’s \ncontrary to what the law states, and to allow a Claimant to just pick and \nchoose where he wants to go or he or she might want to go, partially based on \nwhat I believe is faulty reasoning about the whole process, to me makes no \nsense and shouldn’t be upheld. That shouldn’t be honored in my opinion. \n \n[TR at 27-28.] \n\nD. Payne- H000250 \n7 \n \nTHE RESPONDENTS HAVE NOT PROVEN BY A PREPONDERANCE OF THE \nEVIDENCE THAT THIS CLAIM SHOULD BE DISMISSED FOR A FAILURE TO \nPROSECUTE. \n \n The respondents have the burden to prove by a preponderance of the evidence that \nthe claimant has failed to prosecute his claim. Ark. Code Ann. § 11-9-705(a)(3). Under 11 \nC.A.R. § 25-110(d) (formerly cited as Rule 13),  \nUpon meritorious application to the commission from either party in an \naction pending before the commission requesting that the claim be dismissed \nfor want of prosecution, the commission may, upon reasonable notice to all \nparties, enter an order dismissing the claim for want of prosecution. \n \n In Johnson v. Triple T Foods, 55 Ark. App. 83, 929 S.W.2d 730, 1996 Ark. App. \nLEXIS 628, our Court of Appeals stated, \nThe Commission has the authority, under ACA § 11-9-205(a)(1)(A) (Repl. \n1996), to make such rules and regulations as may be found necessary. Under \nthis authority, the Commission has promulgated its Rule 13, which provides \nthat if a party requests that a claim be dismissed for want of prosecution, the \nCommission may dismiss the claim. \n \n The claimant acknowledged that he refused to submit to the IME arranged for him \nwith Dr. Stewart by the respondents. He explained that his refusal was, at least in part, \nbased on a belief that Dr. Stewart would not be fair to him. He claims willingness, however, \nto attend any “regular” doctor appointment they will arrange for him. The respondents \nargue that the claimant’s refusal to attend the pre-paid IME amounts to his failing to \nprosecute his claim. I disagree. \n The Full Commission previously found that the claimant was entitled to additional \ntreatment with Dr. Busby for his compensable left leg injury. Consistent with that finding, \nthe respondents authorized an MRI scan of the claimant’s left leg. The respondents then \nattempted to provide access to treatment with Dr. Busby. She, however, refused to continue \nseeing the claimant as a patient. This created some difficulty for the respondents. \n\nD. Payne- H000250 \n8 \n \nIn keeping with their understanding of their obligations to provide reasonable and \nnecessary treatment to the claimant, the respondents went about finding a substitute \nprovider for the claimant. But their efforts went beyond simply coordinating continuity of \ncare. Instead, the respondents scheduled an IME for the claimant. Workers’ Compensation \nlaws provide for such evaluations, and a claimant’s cooperation with an IME may be \ncompelled by the Commission under the controlling statute, Ark. Code Ann. § 11-9-511: \n(a)  An injured employee claiming to be entitled to compensation shall submit \nto such physical examination and treatment by another qualified physician, \ndesignated or approved by the Workers’ Compensation Commission, as the \nCommission may require from time to time if reasonable and necessary. \n \n(b)  The places of examination and treatment shall be reasonably convenient \nfor the employee. \n  \n(c)  Such physician as the employee, employer, or insurance carrier may \nselect and pay for may participate in the examination if the employee, \nemployer, or insurance carrier so requests. \n  \n(d)  In cases where the commission directs examination and treatment, \nproceedings shall be suspended, and no compensation shall be payable for \nany period during which the employee refuses to submit to examination and \ntreatment or otherwise obstructs the examination or treatment. \n  \n(e)  Failure of the employee to obey the order of the commission in respect to \nexamination or treatment for a period of one (1) year from the date of \nsuspension of compensation shall bar the right of the claimant to further \ncompensation in respect to the injury. \n  \nSee generally Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 \n(1997)(Arey, J., concurring). But missing from the facts before me, as contemplated in the \noperant statutory language on IMEs, is the Commission’s direction or order for the \nclaimant to submit to an IME. Penalties for noncompliance by a claimant with a \nCommission-directed evaluation are available under the statute. \n There is no evidence in the record, however, that the Commission ordered the \nclaimant’s participation in an IME. In attempting to act in conformance with their \nobligation to provide for the claimant’s treatment, the respondents instead went beyond the \n\nD. Payne- H000250 \n9 \n \nscope of that obligation, implicating other statutory criteria not related to the Full \nCommission’s Opinion and direction. And the claimant was not agreeable to submitting to \nany care at the direction of the respondents besides what he considered to be a “regular” \ndoctor’s appointment.  \n The respondents now seek a dismissal for the claimant’s refusal to submit to an IME \nthat was organized in the absence of an order by the Commission compelling his \nparticipation in the same. On the one hand, the claimant has plainly refused to voluntarily \nsubmit to an IME. On the other hand, he has plainly expressed his willingness to \nparticipate in any other treatment that the respondents might arrange for him. On the \nevidence before me, I cannot find that the respondents have proven by a preponderance of \nthe evidence that the claimant has failed to prosecute his case. He has, indeed, not \ncooperated with their arrangements for an evaluation. But his refusal to do so in the \nabsence of a specific order or directive from the Commission does not constitute a failure to \nprosecute his claim. \n THE CLAIMANT IS ENTITLED TO ADDITIONAL MEDICAL TREATMENT \n The parties agree that the Full Commission found in its 28 May 2024 Opinion that \nthe claimant was entitled to additional medical treatment for his compensable left leg \ninjury. That finding was specific to a particular course of treatment being considered by Dr. \nBusby. While I recognize the difficulty created for the respondents with Dr. Busby \nterminating the physician-patient relationship, they did not present evidence that they \nhave, by virtue of that difficulty, been relieved of their obligation to provide for additional \ntreatment. Nor did they present medical evidence in furtherance of an argument that his \nclinical presentation has changed since the Full Commission’s Opinion found his \nentitlement to additional treatment. The claimant therefore remains entitled to additional \ntreatment as considered in the Full Commission’s Opinion. \n\nD. Payne- H000250 \n10 \n \nIV.  CONCLUSION \n For the reasons explained above, the respondents have failed to prove by a \npreponderance of the evidence that this claim should be dismissed for a failure by the \nclaimant to prosecute his claim. Additionally, the claimant remains entitled to additional \ntreatment for his compensable left leg injury.  \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":19374,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H000250 DARRYL G. PAYNE, EMPLOYEE CLAIMANT PHILLIPS COMMUNITY COLLEGE, SELF-INSURED EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED 17 SEPTEMBER 2025 Heard before Arkansas Workers’ Compensation Comm...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:4","denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:36:26.531Z"},{"id":"alj-H406315-2025-09-16","awccNumber":"H406315","decisionDate":"2025-09-16","decisionYear":2025,"opinionType":"alj","claimantName":"Heath Davis","employerName":"Peco Foods Inc","title":"DAVIS VS. PECO FOODS INC. AWCC# H406315 September 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DAVIS_HEATH_H406315_20250916.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVIS_HEATH_H406315_20250916.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H406315 \nHEATH DAVIS, EMPLOYEE      CLAIMANT \n \nPECO FOODS INC., EMPLOYER     RESPONDENT \n \nOCCUSURE CLAIMS SERVICES, LLC \nINSURANCE CARRIER/TPA      RESPONDENT \n \nOPINION FILED SEPTEMBER 16, 2025 \nHearing before Administrative Law Judge, James D. Kennedy, on the 29\nth\n day of July, \n2025, in Little Rock, Arkansas. \nClaimant is represented by Daniel Wren, Attorney at Law, Little Rock, Arkansas, who \nappeared at the hearing. \nRespondents are represented by Stephen Carmody, Attorney at Law, Jackson, \nMississippi, who submitted a brief on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 29\nth\n day of July, 2025, to determine the sole issue \nof whether the Respondents are entitled to an independent medical exam of the claimant.   \nA copy  of  the  Pre-hearing Order filed  May  19,  2025, was marked “Commission \nExhibit 1” and made part of the record without  objection.  The  Order  provided  that  the \nparties stipulated that the Arkansas Workers’ Compensation Commission had jurisdiction \nof the within claim and that an employer/employee relationship existed on September 18, \n2024.  The Claimant reported an alleged work-related injury to his left bicep on or about \nSeptember 18, 2024, while performing a service growing out of and in the course of his \nemployment with the Respondent employer.  At the time of the injury, Claimant’s average \nweekly  wage  was  $1,125.10,  equating  to  a  temporary  disability  rate  of  $750.00  and  a \npermanent partial disability  rate of $563.00. Claimant  was treated by Dr.  Ron  Bates of \n\nHEATH DAVIS – H406315 \n2 \n \nWhite River Family Medical Clinic, and Dr. Joel N. Smith of Martin Orthopedics, for the \nreported injury.      \n The Claimant’s and  the Respondent’s contentions were all set  out  in  their \nrespective  responses  to  the  Pre-hearing Questionnaire  and  made a  part  of  the  record. \nThe claimant contends that he suffered a compensable injury on September 18, 2024, \nwhen  pulling  the  release  on  a  fifth  wheel.    The  claim  was  originally  accepted,  and  all \nbenefits were paid until December 17, 2024, after he was questioned by the Nurse Case \nManager, and when Dr. Joel Smith recommended surgery.  Dr. Smith affirmatively stated \nthat the claimant had suffered a work-related injury. (Com. Ex. 2) \nThe Respondents contended that the  relationship  of  employer  and  employee \nexisted on September 18, 2024, and Peco Foods, Inc. was a self-insured employer under \nArkansas  law. The  Respondents included  proposed medical  records  in  its  response to \nthe Pre-hearing Questionnaire. The Claimant reported an alleged work-related injury to \nhis left bicep on or about September 18, 2024, while performing services growing out of \nand in the course of his employment with the Respondent. The Respondents provided \nthe  Claimant with  prompt  medical  treatment which included treatment  at White  River \nFamily Medical Clinic with Dr. Ron Bates and later with Martin Orthopedics and Dr. Joel \nN. Smith, for the reported injury.  This treatment included two months of physical therapy \nfor bilateral shoulder pain, from the date of July 15, 2024, through September 17, 2024.  \nOn  September  19,  2024,  Dr.  Bates  assessed  the  claimant  with  non-specific  left  bicep \npain,  placed  him  on  restricted  duty,  and  referred  him  for  an  MRI  of  his  left  humerus.  \nClaimant underwent an MRI without contrast to his left humerus on October 1, 2024.  The \nMRI showed mild-to-moderate biceps tenosynovitis, with no other abnormalities, and no \n\nHEATH DAVIS – H406315 \n3 \n \nevidence  of  tears,  bone  contusions,  or  fractures.    On  October  2,  2024,  the  Claimant \nreturned  to  Dr.  Bates  following  his  MRI,  at  which  time  Claimant  first  reported  a  new \ncomplaint of pain in his left shoulder.  Dr. Bates noted that Claimant’s MRI showed mild-\nto-moderate tendonitis, but no evidence of tears to any muscles or tendons.  At that time, \nDr. Bates referred the claimant to an orthopedic specialist and released Claimant to return \nto work at full duty.  Claimant began treating with Dr. Smith on October 29, 2024.  Dr. \nSmith reviewed the prior MRI and noted its findings.  He then elected to send the Claimant \nfor an MRI of his left shoulder, which was performed on November 8, 2024.  Claimant \nthen returned to Dr. Smith following the MRI, which showed a partial subscapularis tear, \nalong   with   AC   arthritis,   glenohumeral   arthritis,   and   tendinosis   in   the   biceps, \nsupraspinatus/subscapularis.  Dr. Smith then assessed Claimant with adhesive capsulitis \nto his left shoulder and referred him for physical therapy.  Following a regimen of physical \ntherapy,  Dr.  Smith  recommended  surgical  intervention  for  Claimant’s  left  shoulder, \nspecifically a left shoulder arthroscopy with capsular release, SAD, DCR, possible RCR, \nand OIP.  Dr. Smith opined that Claimant’s left shoulder complaints and his need for the \nleft shoulder surgery were work related.   \nOn January 20, 2025, Dr. Sean Lager, at the request of the respondents, provided \na medical PEER Review of Claimant’s medical records, including Dr. Smith’s opinions on \ncausation and recommendations for surgical intervention.  Dr. Lager assessed Claimant \nwith a Grade 1 left bicep strain and Grade 1 left shoulder sprain/strain as it related to the \nreported work injury.  Dr. Lager further opined that Claimant’s work-related injury was not \na  major  contributing  factor  for the surgical  procedure  recommended  by  Dr.  Smith.  \nClaimant  would  achieve  maximum  medical  improvement  for  his  work-related  condition \n\nHEATH DAVIS – H406315 \n4 \n \nupon completing physical therapy, which Claimant had previously completed on January \n3, 2024.  To date, Respondent has paid $14,251.33 for TTD and $5238.50 for Medical in \nregard to the claim. (Com. Ex. 3) \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim.  \n \n2. That the  stipulations  set  out  above  are  reasonable and  are  hereby \naccepted.  \n \n3. It is determined that a preponderance of the credible evidence establishes \nthat the claimant should submit to an independent medical evaluation by an \nindependent  medical  provider  selected  by  the  Medical  Cost  Containment \nDivision of the Arkansas Workers’ Compensation Commission under A.C.A. \n11-9-511(a) and A.C.A. 11-9-811. The evaluation shall be at the expense \nof respondents and the claimant shall be entitled to mileage reimbursement \nfor any travel.  \n \n4. If not already paid, the respondents are ordered to pay for the cost of the \ntranscript forthwith. \n \n \nREVIEW OF TESTIMONY, EVIDENCE AND A BRIEF BY THE RESPONDENT \n \n The  Pre-hearing  Order  along  with  the  Pre-hearing  questionnaires of the parties \nwere admitted into the record without objection.  No in person testimony from a witness \nwas taken.  The claimant’s first exhibit consisted of a letter from Brea Burnett, a claims \nadjuster for OccuSure, directed to Dr. Joel Smith, of Martin Orthopedics, dated December \n20, 2024. \nThe letter provided that the claimant had treated with Dr. Ron Bates on September \n19,  2024,  complaining  of  left  bicep  pain,  and  denying  any  additional  complaints.    The \nclaimant  received  an  MRI  on  October  1,  2024,  and  the  images  provided  for  mild  to \nmoderate tenosynovitis.  Later on, October 2, 2024, the claimant reported new pain in his \n\nHEATH DAVIS – H406315 \n5 \n \nleft shoulder and after an MRI, Dr. Bates issued a full duty work release and then referred \nthe claimant to Martin Orthopedics and Dr. Joel Smith.  \n The letter provided that the claimant started treating with Dr. Smith on October 29, \n2024, that he received another MRI of the left shoulder on November 8, 2024, and the \nMRI demonstrated  a  partial  tear  of  the  subscapularis  tendon,  tendinosis,  and  mild  to \nmoderate degenerative changes throughout the shoulder.  The letter also provided that \nDr.  Smith  ordered  a  left  shoulder  arthroscopy  with  a  capsular  release  and  possible \nrepairs.  A review of current and prior PT notes revealed a history of bilateral shoulder \npain for 1.5 years.  Questions were then asked of Dr. Smith who answered as follows: \nThe claimant’s work-related injury of September 18, 2024, resulted in adhesive capsulitis \nand biceps tendinosis.  The work injury of September 18, 2024, to the left bicep, was the \nmajor  contributing  factor  for  the  recently ordered  surgery  and  the  claimant  has  not \nreached MMI. (Cl. Ex. 1, P. 1, 2) \n A Peer/Medical Review was requested by the respondents and was provided by \nDr.  Sean  Lager,  a  member  of  the  American  Board  of  Orthopedic  Surgery, with  a  sub-\ncertification in Sports Medicine.  Dr. Lager reviewed the medical files that were provided \nand  issued  an opinion which provided that  the claimant’s diagnosis as it related to the \nSeptember 18, 2024, work-related injury to his left bicep, was a grade 1 left bicep strain \nand  a  grade  1  left  shoulder  sprain/strain.    He  went  on  to state that  the  MRI  of  the  left \nshoulder  dated  November  11,  2024,  revealed  a  partial  articular  surface  tear  of  the \nsubscapularis  tendon  with  tendinosis  of  the  rest  of  the  subscapularis tendon and \ntendinosis  of  the  supraspinatus  tendon, with thickening  and a hyperintense  signal \ninvolving the inferior glenohumeral ligament.  This can be due to an injury or can be due \n\nHEATH DAVIS – H406315 \n6 \n \nto  adhesive  capsulitis,  mild  changes  of  osteoarthritis  in  the  glenohumeral  joint,  mild  to \nmoderate  degenerative  changes  in  the  AC  joint,  with  hypertrophic  spurs,  mild  lateral \ndown-sloping of the acromion, and edema along the articular margins of the AC joint.  Dr. \nLager  concluded that  based  upon  the  records  showing  that  the  claimant  had  bilateral \nshoulder pain for 1.5 years prior to the work injury, the work injury on September 18, 2024, \nto the left bicep, was not the major contributing factor for the need of the recently ordered \nsurgery. (Cl. Ex. 1, P. 3 -14) \n The records from the Arkansas Surgical Hospital and Dr. Joel N. Smith provided \nsurgery for the left shoulder that involved adhesive capsulitis and acromioclavicular joint \narthritis which occurred  on  March  19,  2025.    The  report  went  on  to  provide  that  the \nclaimant  suffered  from  severe  left  shoulder  pain  and  had a limited  range  of  motion.  \nFindings  were  consistent  with  acromioclavicular  joint  arthritis  and  adhesive  capsulitis.  \nThe  MRI  reported  concern  for  a  possible  partial  thickness  cuff  tear.    Diagnostic \narthroscopy was then performed. (Cl. Ex. 1, P. 15 -18) \n The Respondents submitted a Motion to Compel an Independent Medical Exam \nthat consisted of a total of 126 pages, which included legal arguments, forms, and medical \nrecords,  including  medical  records  that  predated  the  date  of  the  injury. The  Motion  to \nCompel an Independent Medical Evaluation went into great detail involving the history of \nthe claim and relied on A.C.A. 11-9-511 and A.C.A. 11-9-811.  The Motion also included \ndetailed medical records from Dr. Ron J. Bates dated September 19, 2024, in regard to \nthe claimant and going forward.  These documents included reports from physical therapy \nand documents also submitted by the claimant.  Pre-date of injury medical records were \n\nHEATH DAVIS – H406315 \n7 \n \nalso submitted which provided that the claimant had been receiving physical therapy for \nhis bilateral shoulders as far back as July 15, 2024. (Resp. Ex. 1, P. 1 – 112) \nDISCUSSION AND ADJUDICATION OF ISSUES \nThe sole issue  before  the  Commission  is  the  issue  of  requiring  the  Claimant  to \nsubmit  to  an  independent  medical  evaluation.    The Commission  has  faced this issue \npreviously.  Only  by  a  preponderance  of  the  evidence  can  it  be  established  that  the \nclaimant  must  submit  to  independent  medical  evaluation.  See  A.C.A.  §  11-9-705(a)(3) \n(Repl. 2012). The standard “preponderance of the evidence” means the evidence having \ngreater weight or convincing force. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).    \nThe determination of a witness’s credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission. White v. Gregg Agricultural Ent., 72 \nArk.  App.  309,  37  S.W.3d  649  (2001).  The  Commission  must  sort  through  conflicting \nevidence and determine the true facts.  In so doing, the Commission is not required to \nbelieve the testimony of the claimant or any other witness but may accept and translate \ninto  findings  of  fact  those  portions  of  the  testimony  that  it  deems  worthy  of  belief.  \nAdditionally, the Commission is authorized to accept or reject a medical opinion and is \nauthorized to determine its medical soundness and probative value. Poulan Weed Eater \nv. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); Green Bay Packing v. Bartlett, 67 \nArk.  App.  332,  999  S.W.2d  692  (1999).  The  Commission  shall  weigh  the  evidence \nimpartially, without giving the benefit of the doubt to either party.  Ark. Code Ann 11-9-\n704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989).  Further, the \nCommission has the duty to translate evidence on all issues before it into findings of fact.  \n\nHEATH DAVIS – H406315 \n8 \n \nWeldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996).  \nIn  the  present matter,  the  Commission  is  required  to  evaluate  the  conflicting  medical \nevidence and issued opinions. \nThe claimant was promptly and originally treated by Dr. Ron Bates of White River \nFamily  Medical  Clinic  and  later  referred  to  Dr.  Joel  Smith  of  Martin  Orthopedics  who \nreviewed the original MRI ordered by Dr. Bates and then ordered another MRI.  Dr. Bates, \nthe original treating physician, found mild to moderate tendonitis with no evidence of tears \nof any muscles or tendons and returned the claimant to work with no restrictions, but due \nto the claimant’s continued issues, referred the claimant to Dr. Smith at Martin Orthopedic, \nwho recommended surgical intervention of the claimant’s left shoulder, specifically a \nshoulder  arthroscopy.    This  surgery had  occurred by the  time  of  the  above  hearing in \nregard  to  the  Motion  to  Compel  an  Independent  Medical  Evaluation.    Dr.  Smith,  the \ntreating physician opined that claimant’s left shoulder complaints and need for the left \nshoulder surgery were in fact work-related.   \nThe  respondents obtained a  peer  review  by  Dr.  Sean  Lager which  included  Dr. \nSmith’s opinions on causation and his recommendations  for  surgical  intervention.    Dr. \nLager opined that the Claimant’s work-related injury was not a major factor for the surgical \nintervention by Dr. Smith.   \nIt is noted that the claimant was receiving bilateral shoulder physical therapy prior \nto  the  date  of  the  alleged  injury  and  that the  claimant  was  originally  receiving  benefits \nbefore they were stopped. It is also clear that there are competing medical opinions in \nregard to the treatment of the claimant’s injuries and what caused them.  A.C.A. 11-9-511 \n(a) provides that an injured employee claiming to be entitled to compensation shall submit \n\nHEATH DAVIS – H406315 \n9 \n \nto such physical examination and treatment by another qualified physician, designated or \napproved by the Workers’ Compensation Commission, as the Commission may require \nfrom time to time if reasonably necessary.  It is also noted that A.C.A. 11-9-811 provides \nthat upon its own initiative at any time where compensation payments are being made \nwithout an award, the Workers’ Compensation Commission may and in any case where \nthe rights to compensation has been controverted or where payments of compensation \nhave been suspended, or where an employer seeks to suspend payments made under \nan  award  or  an  application  of  an  interested  party,  the  Commission  shall  make  such \ninvestigation, cause such medical examination to be made, hold such hearings, and take \nsuch further action as the commission deems proper for the protection of all parties.   \nBased upon the above, and after weighing the evidence impartially, it is found that \nan independent medical examination would be beneficial to the fact finder in this matter \nand that a preponderance of the credible evidence establishes that the claimant should \nsubmit to an independent medical provider determined by the Medical Cost Containment \nDivision for the Arkansas Workers’ Compensation Commission under A.C.A. 11-9-511 \nand A.C.A. 11-9-811,  for  an  independent  medical  evaluation.    Further, it  is  found  and \ndetermined that the parties shall work together to expedite this evaluation.  The evaluation \nshall be at the expense of the respondents and the claimant shall be entitled to mileage \nreimbursement for travel.  If not already paid, the respondents are ordered to pay the cost \nof the transcript forthwith. \nIT IS SO ORDERED. \n  \n        ___________________________ \n        JAMES D. KENNEDY \n        Administrative Law Judge","textLength":17446,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H406315 HEATH DAVIS, EMPLOYEE CLAIMANT PECO FOODS INC., EMPLOYER RESPONDENT OCCUSURE CLAIMS SERVICES, LLC INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 16, 2025 Hearing before Administrative Law Judge, James D. Kennedy, on the 29 th day of July, ...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["shoulder","strain","sprain","back"],"fetchedAt":"2026-05-19T22:36:22.379Z"},{"id":"alj-H403830-2025-09-16","awccNumber":"H403830","decisionDate":"2025-09-16","decisionYear":2025,"opinionType":"alj","claimantName":"Caleb Tennis","employerName":"Conway Regional Medical Center","title":"TENNIS VS. CONWAY REGIONAL MEDICAL CENTER AWCC# H403830 September 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TENNIS_CALEB_H403830_20250916.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TENNIS_CALEB_H403830_20250916.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H403830 \nCALEB TENNIS, EMPLOYEE      CLAIMANT \n \nCONWAY REGIONAL MEDICAL CENTER, \nEMPLOYER         RESPONDENT \n \nCONWAY REGIONAL MEDICAL CENTER \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA      RESPONDENT  \n \nOPINION FILED SEPTEMBER 16, 2025 \nHearing before Administrative Law Judge, James D. Kennedy, on the 15\nTH\n day of July, \n2025, in Little Rock, Arkansas. \nClaimant is represented by Greg Giles, Attorney at Law, Texarkansas, Arkansas. \nRespondents are represented by Melissa Wood, Attorney at Law, Little Rock, Arkansas. \nSTATEMENT OF THE CASE \n A  hearing  was  conducted  on  the 15\nth\n day  of July, 2022, and  at  the  time  of  the \nhearing,  the issues before  the  Commission were whether  the  claimant  was  entitled  to \npermanent partial disability of at least five (5%) percent and attorney fees.  All other issues \nwere reserved.  A copy of the Pre-hearing order was marked “Commission Exhibit 1” and \nmade part of the record without objection.  The Order provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission had jurisdiction of the within claim \nand an employer/employee relationship existed on or about February 6, 2023, when the \nclaimant sustained a compensable injury to his low back.  At the time of the injury, the \nclaimant  was  earning an  average  weekly  wage  of $721.07 entitling  him to a  TTD/PPD \nrate  of $481.00/$361.00,  respectively. The  claim  was  accepted  as  a  compensable \nmedical only claim. \n\nCALEB TENNIS – H403830 \n2 \n \n The claimant contended that he is entitled to an impairment rating of at least five \n(5%)  percent and  is  entitled  to  permanent  partial  disability  benefits  associated  with his \ncompensable injury, plus attorney fees, with all other issues reserved.  The respondents \ncontended that all appropriate benefits were being paid with regard to the claimant’s injury \nsustained on February 6, 2023, that Dr. Bruffett released the Claimant as having reached \nMMI on May 22, 2023, and that he released the claimant to full duty with no rating.  If any \nrating applies, it is associated with a prior lower back injury sustained by the Claimant on \nOctober 27, 2021.  \n The claimant’s and respondent’s contentions are all set  out  in  their  respective \nresponses  to  the  Pre-hearing Questionnaire  and  made  a  part  of  the  record  without \nobjection.  The sole witness was the claimant, Caleb Tennis.  From a review of the record \nas a whole, to include medical reports and other matters properly before the Commission, \nand having had an opportunity to observe the testimony and demeanor of the witness, \nthe  following findings of  fact  and  conclusions  of  law are made  in accordance  with  Ark. \nCode Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n 1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this  \n      claim. \n2. That an employer/employee relationship existed on or about February 6, \n2023, when the claimant sustained a compensable injury to his low back. \n\nCALEB TENNIS – H403830 \n3 \n \n3. That at the time of the injury, the claimant was earning an average weekly \nwage of $721.07, sufficient for a TTD rate of $481.00 and a PPD rate of \n$361.00. \n4. The claim was accepted as a compensable medical only claim.  \n5. That the claimant has failed to satisfy the required burden of proof by a \npreponderance of the credible evidence that he is entitled to a permanent \npartial disability rating (PPD) to the body as a whole. \n6. That as a result of the above finding, the issue of attorney fees are moot. \n7. If not already paid, the respondents are ordered to pay for the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The  Pre-hearing  Order  along  with  the Pre-hearing  questionnaires of the parties \nwere admitted into the record without objection.  The claimant submitted an abstract of \nthe medical records that consisted of 4 pages that were admitted without objection.  In \naddition, the claimant submitted 59 pages of medical records that were admitted without \nobjection.  The respondents submitted 24 pages of medical records which included an \nindex without objection.  In addition, the respondents submitted a second exhibit which \nconsisted  of three pages  of non-medical  documents  with  index, also  admitted  without \nobjection. \n The claimant, Caleb Tennis, was the only witness to testify and stated he was born \non January  9,  1993, and  was  thirty-two  years  old  at  the  time  of  the  hearing.    He  had \nobtained a GED and “some college.”  At the time of the hearing, he was working for SRM \nConcrete as a mixer truck driver, driving all over the state.  His accident occurred while \n\nCALEB TENNIS – H403830 \n4 \n \nhe was working for Conway Regional back on February 6\nth\n, 2023, but he had previously \nsuffered an earlier injury also while working for Conway Regional back on October 27, \n2021.  He thought that he had started working for Conway Regional back in February of \n2021.    He  was  hired  as  a  gastroenterology  technician and handled equipment  for  the \ndoctors.  His job consisted of prepping and cleaning scopes, assisting the doctors during \na procedure to remove polyps, logging the samples and making sure that they get to the \nlabs, and at times assisting in the process of lifting and moving patients. (Tr. 6 – 8) \n He was initially injured while transporting a “rather large” patient from the patient \ntower to the GI lab, and in the process of moving the patient who was resting on a wheeled \nbed into the elevator, the bed’s wheels turned sideways in the doorway opening of the \nelevator and became stuck.  No assistance was available, so the claimant attempted to \npick up the patient’s bed in October of 2021, and the claimant suffered back pain and pain \nin  his  legs.  He  was  sent  to  company  doctor,  Johnson,  following  the  injury  where  he \nreceived  an  MRI,  and  was  prescribed  muscle  relaxers,  steroids,  and  physical  therapy.   \nHe was off work for a week which was covered under PTO.  He stated that he was initially \nplaced on light duty immediately following the accident and was later completely released \nafter being seen by Dr. Bruffett.  The claimant stated he felt “actually pretty normal” after \nhis release and returned to full duty at Conway Regional.  He required no treatment for \nany back or leg pain until February 6\nth\n, 2023. (Tr. 9 - 11) \n The  second  accident  on  February  6\nth\n,  2023,  occurred  while the  claimant  was \nworking in the decontamination room where equipment was washed and sanitized.  The \nclaimant stated he bent over to place a scope that weighed from five to ten pounds in the \nwasher and felt a sharp pain in his back.  “I felt fine until I bent forward with it.”  “When \n\nCALEB TENNIS – H403830 \n5 \n \nthe pop happened, it was like severe pain.  I felt really inflamed, and then from there it \nshot down into my legs.  And I remember that I almost fell over and I had to grab my - - \nthe two washers to keep myself upright.”  After the incident, the claimant was sent home.  \nHe stated that he requested to see Dr. Johnson, and his claim and his request to see Dr. \nJohnson were accepted. (Tr. 13)  He was again treated with muscle relaxers, steroids, \nphysical therapy, and received another MRI.  He continued to work having sharp pains in \nhis  back  and  his  left  leg.   He  was again sent  to  Dr.  Bruffett one  or  two  times,  and  Dr. \nBruffett compared the MRI’s and placed the claimant at MMI on May 23, 2023.  He was \nreleased and not placed on any restrictions.  “After Injury Number One, I was fine, but \nTwo, even after I saw Bruffett, I still had the back and leg pain, nerve pain.”  After being \nreleased in regard to injury Number Two, “I still had my lower back pain, the same lower \nback pain, and the pain in my legs, or my leg.”  He went on to state that he returned to \nwork full time, didn’t seek any more additional medical treatment, and was just trying to \nwork and deal with it and continued to work for the respondent, Conway Regional. (Tr. \n14, 15) \nIn regard to no longer working at Conway Regional, the claimant testified that a \ndoctor left the hospital, and they started talking about reducing his hours.  He needed to \nsupport his family, so he looked for work elsewhere.  He then went to work for Crossroads, \nin  November  or December of 2023.    He  was  told  that  the new job  was  going  to be as \nneeded.   He  had  second  thoughts  about  the  new  job,  so  he  contacted  his previous \nsupervisor, Kayce O’ Conner, and asked if he could return to Conway Regional and work \nin a different department.  He stated that his supervisor was agreeable.  He then went to \nan orientation  at  Conway  Regional  but  was  then  called  by  the  hiring  manager  of \n\nCALEB TENNIS – H403830 \n6 \n \nCrossroads, who wanted to hire him as a full-time CDL driver.  As a result of that request, \nhe decided to stay at Crossroads, and sent a resignation notice to his former manager at \nConway  Regional.  (Tr.  16,  17)    The  claimant  went  on  to  state that he  would  return  to \nConway Regional today, but was still having issues with his back and leg.  In regard to \nhis pain, “If I am more active one day than the other, if I’m lifting more stuff up, it’s very \nnoticeable and I’ll feel the back in my lower back and the nerve pain in my leg.  It just kind \nof depends on how active or what I’m really doing that day.”   \nThe claimant stated that he has continued to work at Crossroads and admitted he \nalleged a work-related injury while working for them and it was referenced in the doctor’s \nrecords of January 29.  He was lifting a box when he felt a weird pain in his back which \nwas the same pain he felt before.  Consequently, he received another MRI and was again \nsent  to  Dr.  Bruffett.  (Tr.  18,  19)    Dr.  Bruffett  had  no recommendations  and  nothing \nchanged nor did his situation worsen after the Crossroads incident.  “Some days I’ll still \nhave the back pain and the leg pain just depending on basically how active I am.  You \nknow, if I go out and I lift like 400 pounds of feed, I’m going to feel it the next day, but it’s \npretty much the same.”   In regard to his current job, he stated he just sits in the truck and \nhas a remote control that controls his truck when he is pouring the concrete. (Tr. 20)  The \nclaimant denied seeing any doctors in regard to his back and leg pain since his last visit \nto Dr. Bruffett on April 3\nrd\n, 2024.  The claimant denied ever talking to Dr. Shane McAlister \nor Dr. Michael Calhoun.  He went on to state that he felt he had never really full recovered \nfrom the second injury. (Tr. 21) \nUnder  cross  examination,  the  claimant  admitted  he  had  previously  stated  in  his \ndeposition that once he got into the elevator at Conway Regional on October 27\nth\n, 2021, \n\nCALEB TENNIS – H403830 \n7 \n \nsomehow the elevator became unlevel, and he had to lift the bed three inches out of the \ncrack.  The patient on the bed weighed between 400 to 450 pounds.  He also admitted \nthat he had earlier stated when he got up from his stool in the operating room, he felt a \nshooting pain in his back.  The pain initially traveled to his left leg, but after a couple of \nhours, the  pain went  down  both  legs.  Additionally,  he admitted  he  had  stated  that  his \nlower back was on fire and also that his groin was also pretty bad.  He also admitted that \nDr. Johnson had prescribed pain pills, but he did not take them, due to a family history of \nabuse.  (Tr.  22, 23)    The  claimant  also  stated  that  in  response  to a  discussion  with  Dr. \nBruffett after the October 21\nst\n injury (the first injury), there had been a discussion about \nsurgery.  He admitted that he had stated in his deposition that he did not want surgery at \nthat time with one of the issues being his age. (Tr. 24) \n  In  regard  to  the  second  injury  while  cleaning  the  scopes, he  admitted  that  he \nagain performed light duty afterwards, just like the first injury, and then continued full duty \nuntil the end of 2023, when he left due to the possibility of his hours being reduced.  He \nadmitted then going to work for Crossroads Building Supply and being sent for a physical \nto obtain his CDL. (Tr. 25)  He thought that he obtained his CDL in November of 2023 \nand would have then received his physical, and his CDL was still good on the day of the \nhearing.  He also admitted that he settled his claim that involved him picking up a box that \nweighed  100  pounds, and  at  the  time  of  his  deposition  was  working  for  Ridout,  which \ncontinued until his most recent job.  He admitted to working 40 to 55 hours a week and \nlifting  pieces of  wood  that  weighed up  to  50 pounds.    He also  admitted  he  is  currently \nworking 40 to 60 hours a week. He responded “No” to the question in his deposition, “Is \nyour back keeping you from doing anything right now?”  He also admitted that he was not \n\nCALEB TENNIS – H403830 \n8 \n \ntaking  any  pain medication  except maybe  a Tylenol  every  once  in  a  while  and  that  he \nmight develop an issue when he had lifted 400 pounds of feed for his farm animals with \nthe bags weighing fifty (50) pounds each. (Tr. 26 – 28)  \n The  claimant’s  exhibit  one  consisted  of  an  abstract  of  the  table  of  contents \ncontaining  four  pages.    The  actual medical  records  consisted  of fifty-nine  pages  which \nincluded  a  table  of  contents.    The  medical  records  provided that  the  claimant  initially \npresented to Dr. Gil E. Johnson, a physician at the College Park Family Clinic on February \n7, 2023.  The progress note provided that the claimant had injured his back when he lifted \na scope while leaning forward.  He developed a sharp pain which he related as a 10 out \nof 10.  He suffered a previous back injury on October 27, 2021, and was then also seen \nby Dr. Johnson on November 23, 2024.  His workup at that time included an X-ray, MRI, \nMedrol Dosepak, muscle relaxants, physical therapy, and light duty restrictions.  The MRI \nshowed  spine  spondylosis  with  a mild  disc bulge and  a  left  paracentral  protrusion  with \nmass effect on the left lateral recess with moderate neural foraminal narrowing at L5.  At \nthe time of the previous injury, the claimant was last seen by Dr. Johnson on March 1, \n2022,  who  then  referred  him  to  Dr.  Bruffett.    A  follow-up  visit  was  scheduled  with  Dr. \nBruffett but for some reason the claimant failed to appear.  At that time, the orthopedist \nnoted in his chart notes that he could not state the source of the claimant’s pain was the \nbulging disc at L5 – S1.  The report went on to provide for conservative management with \nMedrol dose packs, physical therapy, application of a heating pad, and sedentary duty. \n(Cl. Ex. 2, P. 2, 3) \n Claimant returned to Dr. Johnson on February 7, 2023, and the report provided he \nhad suffered a new injury consisting of an acute strain on February 6, 2023.  Claimant \n\nCALEB TENNIS – H403830 \n9 \n \nwas  placed  on  sedentary  work  with  a ten-pound  lifting  limit.    A  Medrol  dose  pack  and \nZanaflex were prescribed. (Cl. Ex. 2, P. 4 - 6)  The claimant then returned to Dr. Johnson \nfor a “follow up for the new injury” on February 10, 2023.  The report recommended \nstarting physical therapy. (Cl. Ex. 2, P. 7 - 10)  The claimant again returned to Dr. Johnson \non March 3, 2023, and the report provided that there was less pain when palpating the \nL5 – S1 area.  The MRI on February 23, 2022, was reviewed by Dr. Johnson. (Cl. Ex. 2, \nP. 10 – 12)  Claimant then returned for another follow up with Dr. Johnson on March 14, \n2023.  The report provided that a referral to a specialist may be required. (Cl. Ex. 2, 14, \n15)  Claimant again returned to Dr. Johnson on March 31, 2023, and the report provided \nhe has in pain while sitting, which was a new problem since the injury.  Additionally, he \nhad pain when bending forward with most of his pain coming from L5 – S1.  A new MRI \nwas recommended. (Cl. Ex. 2, P. 16 – 18) \n  The MRI report of April 11, 2023, provided for a normal lordotic curvature of the \nlumbar spine with a 2 mm grade 1 retrolisthesis of L5 on S1 which appeared degenerative \netiology.  No acute fracture was noticed due to the imaging.  There was no spinal cord \nstenosis at T12 – L1.  Under impression, the report provided for spondylosis with a mild \ndisc bulge and left paracentral to left foraminal disc herniation with moderate mass effect \non the left lateral recess and contact of the descending left S1 nerve root by herniated \ndisc, moderate right and moderate to severe left neural foraminal narrowing, which has \nmildly progressed since that previous study. The report also stated that the remainder of \ndegenerative changes as above with no other spinal canal stenosis or other moderate to \nhigh-grade neural foraminal narrowing. (Cl. Ex. 2, P. 18 – 20)  Dr. Johnson then referred \nthe claimant to an orthopedic specialist on April 19, 2023. (Cl. Ex. 2, P. 22). \n\nCALEB TENNIS – H403830 \n10 \n \n Claimant  then  presented  to  Dr.  Wayne  Bruffett  on  May  22,  2023.  The  report \nprovided  that  the  claimant  still  had some  mild  residual  symptoms  “but  is  not  really \nimpaired by this any longer.”  “There may be some subtle progression at L5 – S1 of the \nlateral or lateral recess bulging disc.  Some of this is probably disc osteophyte complex.  \nIt is not a great quality scan.  But it may have progressed just a little.”  “I would say he is \nnow at maximum medical improvement from this February incident.  I think he can return \nto work without restrictions. I do not think he is impaired to the extent where he needs an \nimpairment rating per se.”  A return to work with regular duty note was issued by Dr. \nBruffett. (Cl. Ex. 2, P. 23 -28) \n A third MRI occurred on March 4, 2024, which provided that compared to the prior \nexam, the degree of stenosis had increased slightly.  There was a mild to moderate diffuse \ndevelopmental canal narrowing with L3-4 and L4-5 small broad-based central herniation \nproducing  mild  canal  and  bilateral  recess/foraminal  stenosis.    At  L5-S1,  there  was \nmoderate broad-based left paracentral herniation producing severe left recess, moderate \nright recess, and moderate to severe bilateral foraminal stenosis. (Cl. Ex. 2, P. 29, 30) \nThe claimant then returned to Dr. Bruffett on April 3, 2024.  The report provided that after \nreviewing the MRI prior to the work event and the one afterwards, Dr. Bruffett did not see \nany  evidence  of  an  objective  injury  on  the  imaging  that  could  be related  to  the  work \naccident on January 29, 2024.  He stated he would not recommend any further treatment, \nand the claimant was at maximum medical improvement with no rating and could return \nto his regular job.  (Cl. Ex. 2, 31 - 33)     \n A Records Review Report by Dr. Shane McAlister, dated January 19, 2025, and \nprovided  at  the  request  of  Ms.  Cassidy  Santillan,  CAWC,  of  Cadence  Insurance  Risk \n\nCALEB TENNIS – H403830 \n11 \n \nManagement  Resources,  provided  for  a  diagnosis  of  degenerative  disc  disease  of  the \nlumbar spine.  The report provided that Dr. McAlister reviewed the medical records of the \nclaimant that involved his lower back, including the MRI scan that occurred prior to the \nwork  injury, and an MRI  scan afterwards on  April  11,  2023,  and  also one on  March 4, \n2024.  The report by Dr. McAlister provided there was a disparity in pain complaints and \npain behavior.  In regard to the dermatomal map that the report provided, the left sided \ndisc protrusion would have created a left L5 radicular distribution to be symptomatic, and \nthere was nowhere in this record suggesting that.  Nor was there any evidence of spinal \ninstability.    There  was  never  any  finding on the  diagnostic  imaging  of  any  bony  or  soft \ntissue damage that would be necessary to define a traumatic injury.  No traumatic injury \nwas identified. (Cl. Ex. 2, P. 35 – 54) \n A letter to Dr. Michael Calhoun from claimant’s counsel dated March 31, 2025, was \nalso made part of the record and the letter provided Dr. Bruffett had given the claimant a \n0% impairment rating.  Dr. Calhoun of Pain Treatment Centers of America in Little Rock, \nArkansas, and certified by the Board of Neurological Surgery on May 17, 1995, provided \nin a letter also dated March 31, 2025, that he had reviewed the medical records available, \nwhich  included  the  MRI  prior  to  the  work-related accident and then the two MRI’s that \noccurred after the work- related accident.  He opined that since the claimant had suffered \na lumbar disc herniation with some residual symptoms, “he is awarded a 5% impairment \nof the whole person.  This is according to Table. 75, page 3/113, of the Fourth Edition of \nthe AMA Guidelines to the Evaluation of Permanent Impairment.” (Cl. Ex. 2, P. 55 – 59) \n The respondent also submitted medical records without objection, a report by Dr. \nBruffett dated May 22, 2023, and a Review of Records and Radiology Films by Dr. Shane \n\nCALEB TENNIS – H403830 \n12 \n \nMcAlister dated  January  19,  2025.  (Resp.  Ex.  1,  P.  1 – 23)    Both  have  been  earlier \nreviewed and discussed.  Respondents also submitted two pages of non-medical records \nthat  were admitted  without  objection.    The  claimant  submitted  a  letter  of  resignation  to \nConway  Regional,  the  respondent,  on  January  3,  2024,  thank  ing  the  hospital  for  the \nsupport and opportunities that they had provided. (Resp. Ex. 2, P. 1.) \nRespondents also submitted the AR-C Form dated June 12, 2024, that provided that the \nclaimant, while lifting scopes that appeared to have weighed 80 to 100 pounds, felt a pop \nand felt a “burning” and that this occurred on January 22, 2024. (Resp. Ex. 2, P. 2)   \nDISCUSION AND ADJUDICATION OF ISSUES \nThe claimant has the burden of proving by a preponderance of the evidence that \nhe is entitled to compensation benefits under the Arkansas Workers’ Compensation Law.  \nIn determining whether the claimant has sustained the burden of proof, the Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party.  \nArk. Code Ann 11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d  179  (1996).  This  includes the Commission’s province to reconcile conflicting \nmedical evidence.  Arkansas Health Ctr. v. Burnett, 2018 Ark. App. 427, 558 S.W. 3d 408.   \nThere is no dispute that the claimant sustained a compensable work-related injury \nto his lower back while cleaning and picking up scopes used in colonoscopies and that \nthe scopes weighed between five to ten pounds.  On the date of the injury on January 22, \n2024, the claimant was employed by the gastroenterology department of the respondent, \nConway Regional Medical Center.  The claimant had suffered an earlier injury to his lower \n\nCALEB TENNIS – H403830 \n13 \n \nback on October 27, 2021, while moving a patient for the respondent. The respondents \naccepted the  January  22,  2024, claim as  medical  only, and the claimant was initially \ntreated  by  Dr.  Gil  Johnson  of  Conway  Regional  Medical  Center,  who  had  previously \ntreated  the claimant  for  his  earlier  back  injury.    The claimant  was  then  referred  to  Dr. \nWayne Bruffett, who had also earlier treated him for his previous back injury.  Dr. Bruffett \nsaw the claimant on May 22, 2023, for further treatment with the report providing that the \nclaimant had mild residual symptoms “but is not really impaired by this any longer.”  Dr. \nBruffett went on to opine that the claimant was at maximum medical improvement and he \ndid not think that he was impaired to the extent that he required an impairment rating and \nreturned  the  claimant  to  work,  regular duty.   Later the Claimant  received another  MRI, \nand Dr. Bruffett’s report provided that he compared and reviewed the earlier MRI with the \nlatest one and opined that he did not see an objective finding of an injury on the imaging \nthat  could  be  related  to  the  work  accident.    He  also  stated  that  the claimant  was  at \nmaximum medical improvement and that he could return to his regular job. \nDr. Shane McAlister, who never physically saw the Claimant, provided and issued \na Records Review Report at the request of Insurance Risk Management Resources and \nprovided a report, dated January 19, 2025, which provided for a diagnosis of degenerative \ndisc disease of the lumbar spine of claimant.  The report went on to state that there was \na disparity in the claimant’s pain complaints and his pain behavior and then provided a \ndermatomal map that showed that the left sided disc protrusion should have produced a \nleft L5 radicular distribution to be symptomatic, and there was no-where in the medical \nrecords that suggested that finding, nor any evidence of spinal instability or of traumatic \ninjury. \n\nCALEB TENNIS – H403830 \n14 \n \nDr. Calhoun, who also never physically saw the Claimant, received a request from \nthe claimant’s counsel to review the records, and he issued a  report  on  the  day  of the \nrequest.    Dr.  Calhoun  stated  he  had  also  reviewed  the  medical  records  available, \nincluding the MRI’s, and he disagreed with Dr. Bruffett’s impairment rating due to the fact \nthat the claimant suffered a disc herniation with some residual symptoms and the claimant \nconsequently should be awarded  a  five  percent  impairment  rating  to  the  whole person \nbased on Table 75, page 3/113 of the 4\nth\n Edition of the AMA Guidelines for the Evaluation \nof Permanent Impairment. \nThe parties agreed that the primary issue to be litigated before the Commission is \nthe permanent impairment rating.  Permanent impairment is any permanent functional or \nanatomical loss remaining after the healing period has been reached. Johnson v. General \nDynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994).  Any determination of the existence \nor extent of physical impairment shall be supported by objective and measurable physical \nfindings. A.C.A. 11-9-704 (7)(B).  Objective findings are those findings which cannot come \nunder the voluntary control of the patient. A.C.A. 11-9-102(16)(A)(i).  Although it is true \nthat the legislature has required medical evidence to establish a compensable injury, it \ndoes  not  follow that  such  evidence  is  required  to  establish  each  and  every  element  of \ncompensability. Stephens  Truck  Lines  v.  Millican, 58  Ark.  App.  275,  950  S.W.2d  472 \n(1997).  Medical  opinions  addressing  impairment  must  be  stated  within  a  reasonable \ndegree  of  medical  certainty.  A.C.A.  11-9-102(16)(B).    Permanent  benefits  shall  be \nawarded only upon a determination that the compensable injury was the major cause of \nthe disability or impairment. A.C.A. 11-9-102(F)(ii)a.  “Major cause” means more than fifty \npercent (50%) of the cause. A.C.A. 11–9-102(14). \n\nCALEB TENNIS – H403830 \n15 \n \nIn  the  present  matter, Doctor Bruffett,  the  treating  physician, who  had  the \nopportunity to have a hands-on evaluation of the claimant, opined that the claimant had \nreached maximum medical impairment, could return to regular work, and that there were \nno objective findings that the claimant’s injury was work related.  He opined that the \nclaimant  had  a  zero  percent  impairment  rating.    Dr.  McAlister,  who  did  not  have  the \nopportunity to personally evaluate the claimant, but did have an opportunity to evaluate \nthe medical records and MRI’s,  opined in  his  report  that  there  was  a  disparity  in  the \nclaimant’s pain complaints and pain behavior and then provided a dermatomal anatomical \nmap to show that the claimed pain did not correspond to the disc protrusion at L5.  Only \nDr. Calhoun, who also did not have the opportunity to physically evaluate the claimant but \nalso had an opportunity to evaluate the medical records and the MRI’s, provided that the \nclaimant’s  disc  herniation  and  residual  symptoms should result  in  a  five  percent \nimpairment  rating  to  the  body  as  a  whole, based  upon  the 4\nth\n Edition  of  the AMA \nGuidelines.  \nIt is well settled that the Commission has the duty of weighing medical evidence \nand the authority to determine its medical soundness and probative force. Williams v. Ark. \nDept. of Cmty. Corr., 2016 Ark. App. 427, 502 S.W. 3d 534 (2016).  Although Dr. Calhoun \nissued  a permanent  partial  disability  (PPD) rating  to  the body as  whole  of five percent \n(5%), after a review of the medical records and the MRI’s, the opinion issued by Doctor \nBruffett of a zero percent (0%) permanent partial disability (PPD) rating to the body as a \nwhole is found to be entitled to a more significant evidentiary weight than the opinion of \nDr. Calhoun, due to Doctor Bruffett’s personal examinations of the claimant, and is found \nto be controlling.  Additionally, Dr. McAlister’s opinion, which was also admittedly based \n\nCALEB TENNIS – H403830 \n16 \n \nonly upon a review of the medical records, tends to bolster the opinion of Dr. Bruffett, due \nto Dr. McAlister pointing out that there was a disparity in the claimant’s pain complaints \nand pain behavior, and in also providing a dermatomal map to show that the claimed pain \ndid not correspond to the disc protrusion at L5.  It is also noted that the claimant testified \nthat he is currently driving a cement mixer truck and develops a soreness in his back after \nmoving 400 pounds of feed in 50-pound bag increments.  He also admitted moving wood \nthat weighed up to 50 pounds. \nSince the claimant is found to not have a permanent partial disability rating to the \nbody as a whole or having zero percent (0%), all other issues are moot. \nCONCLUSION \nBased upon the available evidence, and after weighing it impartially without giving \nthe benefit of the doubt to either party, it is found that the claimant has failed to satisfy the \nrequired burden of proof by a preponderance of the credible evidence that he is entitled \nto a permanent partial disability rating (PPD) to the body as a whole.  Due to this finding, \nall other issues are moot.  If not already paid, the respondents are ordered to pay the cost \nof the transcript forthwith. \nIT IS SO ORDERED. \n      _____________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":30727,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H403830 CALEB TENNIS, EMPLOYEE CLAIMANT CONWAY REGIONAL MEDICAL CENTER, EMPLOYER RESPONDENT CONWAY REGIONAL MEDICAL CENTER RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 16, 2025 Hearing before Administrative Law Judge, ...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back","strain","lumbar","fracture","herniated"],"fetchedAt":"2026-05-19T22:36:24.452Z"},{"id":"alj-H304034-2025-09-12","awccNumber":"H304034","decisionDate":"2025-09-12","decisionYear":2025,"opinionType":"alj","claimantName":"Athena Holland","employerName":"Tyson Poultry, Inc","title":"HOLLAND VS. TYSON POULTRY, INC. AWCC# H304034 September 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HOLLAND_ATHENA_H304034_20250912.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOLLAND_ATHENA_H304034_20250912.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H304034 \n \n \n \nATHENA C. HOLLAND,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nTYSON POULTRY, INC.,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nTYSON POULTRY, INC./ \nTYNET CORP. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED SEPTEMBER 12, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE FILED \nJULY 18, 2025 \n \n \nHearing conducted on Thursday, September   11,   2025, before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in \nEl Dorado, Union County, Arkansas. \n \nThe claimant, Ms. Athena C. Holland, of Bryant, Saline County, Arkansas (formerly of Camden, \nOuachita County, Arkansas) appeared pro se. \n \nThe respondents were represented by the Honorable J. Matthew Mauldin, Roberts Law Firm US, \nP.C., Little Rock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Thursday, September 11, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and 11 C.A.R. Section 25-110(d) (Code of AR Regulations 2025) (formerly cited \nas Commission Rule 099.13 (2025 Lexis Replacement)). \n         On Wednesday, October 2, 2024, this claim was the subject of a previous hearing wherein \nthe Commission granted the claimant’s request to voluntarily dismiss her claim to which the \n\nAthena C. Holland, AWCC No. H304034  \n2 \n \nrespondents had no objection. (Commission Exhibit 1). The claimant appeared in person at hearing \nand testified under oath she wanted to voluntarily dismiss her claim. In an opinion filed October \n3,  2024,  the  ALJ  granted  the claimant’s request and dismissed  the  claim  without  prejudice. \n(Comms’n Ex. 2).  \n        A little over two (2) months later, on December 6, 2024, the claimant refiled a Form AR-C. \nThereafter,  the  claimant  still  persisted  in  her  failure  and/or  refusal  to comply with the ALJ’s \nprevious  order  to  compel discovery filed  June  4,  2024;  she  failed  and/or  refused  to  request  a \nhearing; she failed and/or refused to take any action(s) pursue this claim. On July 18, 2025, the \nrespondents filed a motion to dismiss with or without prejudice and brief in support thereof (MTD). \n(Respondents’ Exhibits 1 and 2). In accordance with the applicable law the claimant was provided \ndue  and  legal  notice  of both the respondents’ MTD as  well  as  the date,  time,  and  place  of  the \nsubject hearing. \n          The respondents’ MTD filed July 18, 2025, contains a thorough and accurate statement of \nall  the  relevant  facts  herein.  Therefore,  I  hereby  incorporate  by  reference  the  facts  as  stated  in \nparagraphs 1-19 of the respondents’ MTD filed July 18, 2025, as if set forth word-for-word herein. \n(RX1 at 1-19). \n          In summary, the claimant testified under oath at the subject hearing that she had been too \nbusy and had not been given sufficient time to pursue both her workers’ compensation claim and \nher apparent Equal Employment Opportunity Commission (EEOC) and federal lawsuit against her \nformer employer, Tyson Poultry, Inc. (Tyson). She also testified she had returned to work on at \nleast  two  (2)  occasions  after  her  physician  had  released  her  to return  to  work  following  her \ncompensable  injury.  She  testified  she  was  terminated  for  attendance  problems,  but  that  she \nbelieved she was actually terminated for other allegedly unlawful reasons which are the subject of \n\nAthena C. Holland, AWCC No. H304034  \n3 \n \nher apparent EEOC claim and federal lawsuit. She testified Tyson had offered her a job at some \ntime  after  she  was  terminated,  but  she  did  not  accept  the  job  offer  and  instead  apparently  is \npursuing an EEOC claim and federal lawsuit. The claimant testified she spent a great deal of time \nand effort trying to retain an attorney to represent her in this workers’ compensation claim, but \nthat no attorney would take her case. (Hearing Transcript).   \n         The record herein consists of the transcripts of both the October 2, 2024, and September 11, \n2025, MTD hearings, and any and all exhibits contained therein and attached thereto. \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute her claim or to request a \nhearing in the last six (6) months.  \n        Furthermore – and  significantly – the  claimant  has  repeatedly  failed  and/or  refused  to \ncooperate in the discovery process as required by law and as she was specifically ordered to do in \nthe ALJ’s order to compel discovery filed June 4, 2024, over one (1) year and three (3) months \nafter  the  order  was  issued  and  filed. This  failure  and/or  refusal  to  comply  with  this  fair, \nreasonable, and lawful Commission order in and of itself constitutes sufficient grounds to dismiss \nthe claimant’s claim for  a second time. I find the claimant’s testimony concerning why she has \n\nAthena C. Holland, AWCC No. H304034  \n4 \n \nfailed and/or refused to cooperate in discovery and to comply with the ALJ’s June 4, 2024, order \nto compel discovery to be rather incomprehensible and without merit.   \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. The claimant has not requested a hearing within the last six (6) months and has taken no \naction(s) to raise any issues related to or to prosecute this claim.  \n \n3. The  claimant  has unjustifiably repeatedly failed  and/or  refused – and  continues  to  fail \nand/or refuse – to  cooperate in the discovery process and to comply with the ALJ’s order \nto compel discovery filed June 4, 2024. \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwith or without prejudice filed June 9, 2025, should be and hereby is GRANTED; and this \nclaim is dismissed without prejudice to its refiling pursuant to the deadlines prescribed by \nArk. Code Ann. Section 11-9-702(a) and (b) and 11 C.A.R. 25-110(d) (formerly cited as \nCommission Rule 099.13). \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \nMP/mp \n \n \n                                                                                \n \n \n \n \n\nAthena C. Holland, AWCC No. H304034  \n5","textLength":8140,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304034 ATHENA C. HOLLAND, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYSON POULTRY, INC./ TYNET CORP. CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 12, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE FILED","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:36:16.163Z"},{"id":"alj-H407551-2025-09-12","awccNumber":"H407551","decisionDate":"2025-09-12","decisionYear":2025,"opinionType":"alj","claimantName":"Anthony Reedy","employerName":"City Of El Dorado","title":"REEDY VS. CITY OF EL DORADO AWCC# H407551 September 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/REEDY_ANTHONY_H407551_20250912.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REEDY_ANTHONY_H407551_20250912.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H407551 \n \n \nANTHONY REEDY,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nCITY OF EL DORADO,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nARKANSAS MUNICIPAL LEAGUE  \nWORKERS’ COMPENSATION PROGRAM/ \nARK. MUNICIPAL LEAGUE \nTYNET CORP. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED SEPTEMBER 12, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Thursday, September   11,   2025, before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in \nEl Dorado, Union County, Arkansas. \n \nThe claimant, Mr. Anthony Reedy, pro se, failed and/or refused to appear at the hearing. \n \nThe  respondents  were  represented  by  the  Honorable Mary  K.  Edwards,  Arkansas  Municipal \nLeague, Little Rock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Thursday, August 21, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and 11 C.A.R. Section 25-110(d) (Code of AR Regulations 2025) (formerly cited \nas Commission Rule 099.13 (2025 Lexis Replacement)). \n         The respondents filed a motion to dismiss this claim without prejudice for lack of prosecution \n(MTD) on June 26, 2025. (RX1 at 6-8). The claimant filed two (2) Form AR-Cs in this claim the \n\nAnthony Reedy, AWCC No. H407551 \n2 \n \nfirst on November 18, 2024, and the second on November 25, 2025), apparently alleging different \ndates of injury and requesting different benefits; but filing both Form AR-Cs under the same claim \nnumber.  (Respondents’  Exhibit  1). In  accordance  with  the  applicable  law  the  claimant was \nprovided due and legal notice of both the respondents’ MTD as well as the date, time, and place \nof the subject hearing. Thereafter, the claimant failed and/or refused to respond to the respondents’ \nmotion in any way, or to appear at the subject hearing. Upon information and belief, it appears the \nclaimant returned to work for the City of El Dorado. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute his claim, or to request a \nhearing in the last six (6) months. \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n\nAnthony Reedy, AWCC No. H407551 \n3 \n \n2. After having received due and legal notice of both the respondents’ MTD without prejudice \nfiled with the Commission on June 26, 2025, as well as due and legal notice of the date, \ntime, and place of the subject hearing, the claimant failed and/or refused to respond to the \nMTD in any way and failed and/or refused to appear at the subject hearing. \n \n3. The claimant has not requested a hearing within the last six (6) months and has taken no \nsteps to raise any issues related to or to prosecute this claim.  \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwithout prejudice filed June 26, 2025, should be and hereby is GRANTED; and this claim \n(including but not limited to both of the Form AR-Cs the claimant filed in November 2024) \nis dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. \nCode  Ann. Section  11-9-702(a)  and  (b) and 11 C.A.R. 25-110(d)  (formerly  cited  as \nCommission Rule 099.13). \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n\nAnthony Reedy, AWCC No. H407551 \n4","textLength":5500,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H407551 ANTHONY REEDY, EMPLOYEE CLAIMANT CITY OF EL DORADO, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM/ ARK. MUNICIPAL LEAGUE TYNET CORP. CARRIER/TPA RESPONDENT","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:36:18.233Z"},{"id":"alj-H407791-2025-09-12","awccNumber":"H407791","decisionDate":"2025-09-12","decisionYear":2025,"opinionType":"alj","claimantName":"Reggie Tucker","employerName":"Georgia Pacific, LLC","title":"TUCKER VS. GEORGIA PACIFIC, LLC AWCC# H407791 September 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TUCKER_REGGIE_H407791_20250912.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TUCKER_REGGIE_H407791_20250912.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H407791 \n \n \nREGGIE TUCKER,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nGEORGIA PACIFIC, LLC,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nOLD REPUBLIC INS. CO./ \nESIS, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED SEPTEMBER 12, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Thursday, September   11,   2025, before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in \nEl Dorado, Union County, Arkansas. \n \nThe claimant, Reggie Tucker, pro se, failed and/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Rick Behring, Jr., Newkirk & Jones, Little \nRock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Thursday, September 11, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and 11 C.A.R. Section 25-110(d) (Code of AR Regulations 2025) (formerly cited \nas Commission Rule 099.13 (2025 Lexis Replacement)). \n         The respondents filed a motion to dismiss this claim without prejudice for lack of prosecution \nand brief in support thereof (MTD) on June 9, 2025. (Respondents’ Exhibit 1 at 4-7). In accordance \nwith the applicable law the claimant was provided due and legal notice of both the respondents’ \n\nReggie Tucker, AWCC No. H407791 \n2 \n \nMTD as well as the date, time, and place of the MTD hearing on two (2) separate occasions which \nhe received on June 14, 2025, and July 14, 2025. (Commission Exhibits 1 & 2). Thereafter, the \nclaimant failed and/or refused to respond to the respondents’ motion in any way, or to appear at \nthe subject hearing. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute his claim, or to request a \nhearing within the last six (6) months. \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of both the respondents’ MTD without prejudice \nfiled with  the  Commission  on June 9,  2025, as  well  as due  and  legal notice  of the date, \ntime, and place of the subject hearing, the claimant failed and/or refused to respond to the \nMTD in any way and failed and/or refused to appear at the subject hearing. \n \n3. The claimant has not requested a hearing within the last six (6) months and has taken no \naction(s) to raise any issues related to or to prosecute this claim.  \n\nReggie Tucker, AWCC No. H407791 \n3 \n \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwithout prejudice filed June 9, 2025, should be and hereby is GRANTED; and this claim \nis dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. \nCode  Ann. Section  11-9-702(a)  and  (b) and 11 C.A.R. 25-110(d)  (formerly  cited  as \nCommission Rule 099.13). \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n                                                                                \n\nReggie Tucker, AWCC No. H407791 \n4","textLength":5205,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H407791 REGGIE TUCKER, EMPLOYEE CLAIMANT GEORGIA PACIFIC, LLC, EMPLOYER RESPONDENT OLD REPUBLIC INS. CO./ ESIS, INC. CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 12, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:36:20.306Z"},{"id":"alj-H306050-2025-09-10","awccNumber":"H306050","decisionDate":"2025-09-10","decisionYear":2025,"opinionType":"alj","claimantName":"Jose Navarro-Maldonado","employerName":"J C Quality Framing Inc","title":"NAVARRO-MALDONADO VS. J C QUALITY FRAMING INC. AWCC# H306050 September 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/NAVARRO-MALDONADO_JOSE_H306050_20250910.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NAVARRO-MALDONADO_JOSE_H306050_20250910.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H306050 \n \nJOSE A. NAVARRO-MALDONADO, EMPLOYEE CLAIMANT \n \nJ C QUALITY FRAMING INC., EMPLOYER RESPONDENT \n \nLM INSURANCE CORPORATION, CARRIER/TPA RESPONDENT \n \n \n OPINION FILED SEPTEMBER 10, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by DANIEL E. WREN, Attorney, Little Rock, Arkansas. \n \nRespondents represented by ZACHARY F. RYBURN, Attorney, Litle Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On June 20, 2025, the above captioned claim came on for a hearing at Springdale, Arkansas. \nA pre-hearing conference was conducted on March 6, 2025, and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2. The employee/employer/carrier relationship existed on September 9, 2023 \n3. The claimant sustained a compensable injury on September 9, 2023.  \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n             1.  Compensation rate. \n\nNavarro-Maldonado-H306050 \n2 \n \n \n             2.  Whether claimant is entitled to wage loss benefits. \n             3.  Attorney’s fee. \n All other issues are reserved by the parties. \n The claimant contends that “He was given permanent restrictions, which were not sufficient \nto return to his job doing construction work. Since being released, the claimant has not been able to \nobtain full-time work and all the work he has found has paid significantly less than his prior wages.” \nThe respondents contend that “This  claim  has  been  accepted,  and  all  appropriate  benefits \nhave been paid. The claimant is requesting wage loss benefits which can be determined at a hearing.” \n           From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the witness \nand  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on March \n6, 2025, and contained in a pre-hearing order filed on that same date are hereby accepted as fact. \n 2.    The evidence in this case supports a finding that claimant was earning an average weekly \nwage of $800.  \n 3.   Claimant has met his burden of proving by a preponderance of the evidence that he has \nsuffered a loss in wage earning capacity in an amount equal to 5% to the body as a whole.  \n \nHEARING TESTIMONY \n \n Claimant was injured on September 9, 2023, when he fell approximately forty feet from a roof. \nHis employer also fell and died as a result of the fall. Claimant testified that he had three major injuries:  \n\nNavarro-Maldonado-H306050 \n3 \n \n \nto his foot, his knee, and his back. Claimant said he had surgery on each of these body parts and still \nhas pain in his back and foot. Claimant demonstrated that he had a decided limp in his left foot, his \ngait appears to be uneven, and he looked to be unsteady on his feet. His left foot was not straight. \nClaimant testified that walking caused his back to hurt, although he always has pain in his back whether \nhe is walking or not. \n Claimant testified that his work involved building structures from the ground up. He walked \nand climbed ladders and scaffolding during his workday. Since the injury, claimant has worked four \nor five hours during the day picking up trash at job sites. He testified that the pain in his back caused \nhim to shorten his workday. Lifting and twisting at work causes his back to hurt more and he limits \nhis workday to five hours on days that he can work. Claimant testified that he has back pain when he \ngets up in the morning and it gets worse during the day when he works. \n Claimant said he worked for J C Quality Framing for close to two years, although there was a \nperiod of time that he left because he wanted more money. He had returned to respondent J C Quality \nFraming about three months before this accident and testified that he was earning $20.00 an hour on \nthe day of the accident. He testified that he would often work between fifty and sixty hours a week. \nClaimant was aware that an adjuster for LM Insurance reported his average weekly wage (AWW) was \n$925.00, but claimant believed he was making more. However, he believed that figure was fair. \n Claimant said that he now works when his friends tell him about a job. He cannot lift heavy \nobjects while working, limiting himself to fifty pounds or under. He said the most he had made in a \nweek was $450.00 and averaged around $300.00 since the accident. Claimant said that if he could work \nmore that he would.  \n On  cross  examination,  claimant  testified  that  his  condition  has  not  improved  since  he  was \ndeposed in February 2025. He stated that he could not lift more than fifty pounds and could not climb \n\nNavarro-Maldonado-H306050 \n4 \n \n \nladders. Claimant clarified that surgery had not been recommended because of the area of his back \nthat is injured, the doctor was concerned that his condition might get worse.  Claimant was concerned \nthat he could end up not walking following the back surgery.  \nClaimant  had  not applied  for  jobs  other  than cleaning  construction  sites. Claimant  had  not \nworked at any employment other than construction. He had looked into painting jobs, but there was \na requirement that he be on a ladder which he could not do. Claimant said that he made $80.00 to \n$100.00 dollars per day. He was paid by cash for these jobs and does not have a bank account. Claimant \nhad no other form of income and had not applied for government benefits. Claimant admitted that \nhe spoke only Spanish which would limit his employment prospects. Claimant conceded that he did \nnot  have  any  tax  returns  or  pay  stubs  from  J  C  Quality  Framing,  and had  no  proof  other  than  his \ntestimony  that  he  was  averaging  $925.00  per  week. Claimant testified that Respondents’ Exhibit 1 \ncame  from  a  money  exchange  house  where  he  cashed  a  check. He  used  more  than  one  money \nexchange  house, and those  places  did  not  have  a  printer  to  make copies of  what  they  saw  in  their \ncomputer. \n On redirect examination, claimant said his paycheck was the same most weeks but there were \ntimes they were higher and lower. Claimant said he made an effort to get as many copies as possible \nof the checks he cashed.  Claimant said that when he spoke to an adjuster for the insurance company, \nhe answered the questions about how many hours he worked and how much he was paid to the best \nof his ability. \nManuel Aranda testified by deposition. He is a claims adjuster for Liberty Mutual Insurance \nand  has been  since  2005. He  identified  the  AR-2 form that he filed with the Arkansas Workers’ \nCompensation Commission. He said the $925.00 average weekly wage he used on that form was an \nestimate based on the conversation that he had with the claimant. He had no wage records to work \n\nNavarro-Maldonado-H306050 \n5 \n \n \nwith and he relied on claimant’s representation as to what he earned. He did no investigation as to \nwhat the going rate was for construction workers in Arkansas but would not be shocked that a worker \nmade $925.00 per week. He had no reason at the time to believe that $925.00 per week was incorrect. \nHe also did  no investigation as to claimant’s average weekly wage other than speaking with family \nmembers of the deceased owner to see if there were any financial records that he could obtain, but. \nreceived no cooperation from the family in that regard.  \n \nREVIEW OF THE EXHIBITS \n \n \nIn  addition  to  the Prehearing Order  discussed above,  the exhibits admitted  into  evidence  in \nthis case were Claimant's Exhibit 1, a compilation of his medical records, consisting of one index page \nand  17 numbered  pages  thereafter;  Claimant's Exhibit 2,  non-medical  records,  consisting  of  one \nindex page and 55 numbered pages thereafter; Respondents' Exhibit 1, consisting of one index page \nand eight numbered pages thereafter; and Respondents' Exhibit 2, non-medical records, consisting of \ntwo index pages and two numbered pages thereafter. \nMEDICAL EXHIBITS REVIEW \nClaimant submitted the discharge summary from Washington Regional Medical Center where \nhe  was  taken  after  the  accident,  after  two  days  he  was  discharged  and  was  then  seen  at  Ozark \nOrthopedics by three different physicians. Claimant provided the final office visit with Dr. Tom Coker \non January 24, 2024, in which he was assessed a 12% rating to his lower left knee. Dr. Mark Miedema \ntreated claimant for his back injury, and on February 8, 2024, he assessed a 5% permanent impairment \nrating  due  to  the  compression fracture in claimant’s lumbar spine. Dr.  Miedema  recommended  a \nfunctional capacity evaluation to determine claimant’s permanent work restrictions. Dr.  Miedema \nnoted that the MRI on claimant’s back did not show any significant retropulsion or canal compromise \n\nNavarro-Maldonado-H306050 \n6 \n \n \nfrom  the  fracture. Claimant also submitted Dr. Jason Pleimann’s discharge summary of March 18, \n2024, in which claimant was given a 21% rating on his left foot. \nNON-MEDICAL REVIEW \n Claimant submitted thirty-six pages of documents that included the employer’s intent to accept \nthe claim that was submitted to the Commission by Mr. Aranda on September 26, 2023, on which the \nsum  of  $925.00 was  listed as claimant’s average weekly wage. The  remaining  document  appears  to \nhave come from the Commission’s file and have no bearing on the issues to be decided in this matter. \n Respondents’ exhibits include copies of three checks dated June 23, 2023, in the amount of \n$990.00,  July  1,  2023, in  the  amount  of  $800.00,  and  August  26,  2023, in  the  amount  of  $960.00. \nRespondents also included as an exhibit claimant’s answers to interrogatories in which claimant stated \nthat he had very little education, that he did not have any tax returns for the previous five years and \ndid not have any paystubs or copies of his checks. Claimant had already been deposed at the time the \nanswers to these interrogatories and request for production of documents was submitted and claimant \nis  the  one  that  provided  the  three checks  referenced  above.  I  therefore  understand his  answer  to \nrequest for production of documents number eight to mean he had no additional copies of paychecks \nor pay stubs.  \n \nADJUDICATION \n \n \nClaimant suffered severe injuries from a three-story fall, injuring his foot, knee, and lower \nback. Respondents did not contest the claim and from the issues presented in the prehearing order, it \nappears that all benefits have been paid to date.   Two separate questions remain: what is claimants \ncompensation rate and what degree of wage loss disability his unscheduled injury has caused?  \n \n\nNavarro-Maldonado-H306050 \n7 \n \n \nWhat is the Claimant’s compensation rate? \nOrdinarily, it is a simple matter to examine wage records and determine what the average \nweekly wage is for a claimant. In this case, the employer died in the accident that caused claimant’s \ninjuries, therefore was not available to provide accurate income information as to his rate of pay, \nnormal hours worked, frequency of employment and other such matters. Manuel Aranda, the adjuster \nhandling the claim for respondent LM Insurance, interviewed claimant shortly after the accident; based \non claimant’s representations to him, Mr. Aranda began paying temporary total disability benefits \nbased on an average weekly wage of $925.00. Claimants position was that since Mr. Aranda initially \naccepted the AWW as reported  by  claimant,  that  should  have  settled  the  matter. However, \nrespondents clearly made it an issue in the prehearing order.  \nArkansas Code Annotated section 11-9-518 provides in pertinent part: \n(a)(1) Compensation shall be computed on the average weekly wage earned by the employee under \nthe contract of hire in force at the time of the accident and in no case shall be computed on less than \na full-time workweek in the employment... \n(c) If, because of exceptional circumstances, the average weekly wage cannot be fairly and justly \ndetermined by the above formulas, the commission may determine the average weekly wage by a \nmethod that is just and fair to all parties concerned. \nAlthough claimant did not assert that this matter involved “exceptional circumstances,” the \nstatute anticipates the Commission will determine if such exist in order to determine a fair and just \nweekly wage. The death of the employer in the same accident is unusual enough to create an \nexceptional circumstance; he would have been able to answer questions about claimant’s earnings. \nHowever, due to the way claimant was paid, the proof on this point is scant. Claimant’s testimony was \nthat he could work more or less than 40 hours per week, which is typical for construction work. \nNeither party provided the bank records of the employer, claimant had no bank records nor tax \nreturns. There was no testimony presented by other employees or persons as to the hours claimant \n\nNavarro-Maldonado-H306050 \n8 \n \n \nworked.\n1\n  I found it curious that the only three checks claimant professed  he could find just happened \nto average $917.00—almost exactly what he had estimated to be his AWW when he talked to Mr. \nAranda.   While claimant’s testimony was problematic in many areas, I do believe he was being paid \n$20 per hour, and I find it would be fair and just to calculate his AWW on the basis of 40 hours per \nweek at $800.00. This would yield a permanent partial disability weekly benefit of $400.00.   \nDid claimant prove entitlement to a wage loss disability award? \n As set forth in the review of the medical records, claimant had three separate compensable \ninjuries. However, two of those—to claimant’s foot and knee—were scheduled injuries, and his \nrecovery for those injuries is limited to the percentage of permanent physical impairment as per A.C.A. \n11-9-519(g).   \n Claimant’s back injury is an unscheduled injury, and is governed by Ark. Code Ann. § 11-9-\n522(b)(1), which states: \nIn considering claims for permanent partial disability benefits in excess of the employee's percentage \nof permanent physical impairment, the Workers' Compensation Commission may take into account, \nin addition to the percentage of permanent physical impairment, such factors as the employee's age, \neducation, work experience, and other matters reasonably expected to affect his or her future earning \ncapacity. \nSuch \"other matters\" include motivation, postinjury income, credibility, demeanor, and a \nmultitude of other factors to be considered in claims for wage-loss-disability benefits in excess of \npermanent-physical impairment. Ark. Highway & Transp. Dep't v. Work, 2018 Ark. App. 600, 565 \n \n1\n Ordinarily, a respondent is not required to present any evidence and can rest on the failure of a claimant to meet his \nburden of proof. This statute, however, is unusual in that the commission is to determine what is just and fair to all \nparties, making no mention of the burden of proof. Based on what was presented, my ruling would be the same if I \nfound claimant had the burden of proof on this issue. \n\nNavarro-Maldonado-H306050 \n9 \n \n \nS.W.3d 138. There is no exact formula for determining wage loss Hixon v. Baptist Health, 2010 Ark. \nApp. 414.  \nClaimant is currently 34 years old, uneducated, unable to communicate in English, motivated \nto work in the construction industry but earning less wages than he was earning before his injury. \nUnfortunately, having seen claimant testify and observed his left foot, I believe it is that injury that is \nthe major cause of claimant being unable to climb ladders and otherwise engage in the same type of \nlabor he was doing when he was injured. Looking solely at the back injury, Dr. Miedema stated \n“Fortunately, this MRI did not show any significant retropulsion or canal compromise from the \nfracture.” There is no objective evidence of neural foraminal narrowing or central canal stenosis which \nwould be causing claimant to have radicular pain into his left lower extremity. Because there were no \nresults from a functional capacity evaluation submitted into evidence, I saw no restrictions on claimant \nthat can be attributed to his back injury. Claimant testified that his doctor discussed a serious back \nsurgery with him, but nothing about that discussion is contained in Dr. Miedema’s discharge summary. \nHowever, in the discharge summary, claimant was given instructions for “back care and preventing \ninjuries.”  As such, I do believe the condition of claimant’s back alone, without regard to his foot \ninjury, would cause him to be unable to work at some of the jobs he had prior to his compensable \nback injury.  \nAfter considering all the factors set forth in this opinion, I am satisfied that claimant has \nproven he has a wage loss disability of 5% above his physical impairment rating on his lumbar spine.  \nORDER \n \n The  proof  in  this  case  supports  using  exceptional  circumstances to find claimant’s average \nweekly wage was $800.00, for a permanent partial impairment weekly benefit of $400.00. \n\nNavarro-Maldonado-H306050 \n10 \n \n \n Claimant has proven by a preponderance of the evidence that he has suffered a loss in wage \nearning capacity in an amount equal to 5% to the body as a whole. Accordingly, claimant is entitled \nto payment of permanent partial disability benefits in an amount equal to 5% to the body as a whole. \nRespondent  has  controverted  claimant's  entitlement  to  all  unpaid  indemnity  benefits for  wage  loss \ndisability. \nPursuant to A.C.A. § 11-9-715(a)(1)(B), claimant's attorney is entitled to an attorney fee in the \namount of 25% of the compensation for indemnity benefits payable to the claimant. Thus, claimant's \nattorney is entitled to a 25% attorney fee based upon the 5% wage-loss benefits awarded. This fee is \nto be paid one half by the carrier and one-half by the claimant. \n Respondent is responsible for the court reporter’s fee of $642.00 \n \n IT IS SO ORDERED.  \n                                                                                \nJOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":18791,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306050 JOSE A. NAVARRO-MALDONADO, EMPLOYEE CLAIMANT J C QUALITY FRAMING INC., EMPLOYER RESPONDENT LM INSURANCE CORPORATION, CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 10, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washin...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["knee","back","fracture","lumbar"],"fetchedAt":"2026-05-19T22:36:12.018Z"},{"id":"alj-H404559-2025-09-10","awccNumber":"H404559","decisionDate":"2025-09-10","decisionYear":2025,"opinionType":"alj","claimantName":"Ronny Rangel","employerName":"S N S Erectors Inc","title":"RANGEL VS. S N S ERECTORS INC. AWCC# H404559 September 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RANGEL_RONNY_H404559_20250910.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RANGEL_RONNY_H404559_20250910.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H404559 \n \nRONNY L. RANGEL, EMPLOYEE CLAIMANT \n \nS N S ERECTORS INC., EMPLOYER RESPONDENT \n \nTRAVELERS PROPERTY CASUALTY CO. OF AMERICA, CARRIER/TPA RESPONDENT \n \n \n AMENDED OPINION FILED SEPTEMBER 10, 2025\n1\n \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney,  Fayetteville, Arkansas. \n \nRespondents represented by AMY C. MARKHAM, Attorney,  Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  June 2, 2025, the above captioned claim came on for a hearing at Springdale, Arkansas. A \npre-hearing  conference  was conducted  on May  15,  2025, and  a  pre-hearing order  was  filed  on  that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1  The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n \n1\n An  opinion  was  issued  in  this  matter  on  August  22,  2025.   That  opinion  granted  respondent’s  motion  for  an \nindependent medical examination to address the degree of claimant’s permanent impairment rating on his left knee.  \nFollowing that decision, the parties reached a stipulation on the issue of the extent of claimant’s permanent impairment \nrating,  and I  accept  that  stipulation.    As  such,  respondents  withdrew  their  request  for  an  independent  medical \nexamination.  This opinion is amended to remove any references to an independent medical examination.  The post-\nhearing agreed order is blue backed to the record of this case.   \n \nThe issues regarding temporary total disability and attorney’s fee are not affected by that agreed order, and this opinion \nrepeats the findings in the previous order.  \n\nRangel-H404559 \n2 \n \n \n2  The employee/employer/carrier relationship existed on May 22, 2024. \n3  The compensation rates are $699.00 for temporary total disability and $525.00 for  \npermanent partial disability.  \n  At the hearing, the parties also stipulated that claimant sustained a compensable injury to his \nleft knee on May 22, 2024.    \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1. Whether  claimant  is  entitled  to  temporary  total  disability  benefits  from  May  31,  2024, \nthrough August 23, 2024. \n2.  Attorney fees on all indemnity payments. \nAll other issues are reserved by the parties. \nThe claimant contends that “The claimant, Ronny Rangel, sustained a compensable injury to \nhis  left  knee  on  May  22,  2024,  while  working  for  SNS  Erectors,  Inc.,  in  Nashville,  Arkansas. This \nmatter was controverted in its entirety by the respondents. Below is a timeline of events:  \na. The claimant filed an AR-C on July 19, 2024; \nb. The  respondents  filed  an  AR-2 on July 22, 2024, controverting stating “No injury per \nstatutory definition;” \nc. Claimant’s counsel requested a hearing on compensability – requesting medical and TTD \nbenefits on August 1, 2024; \nd. Respondents’ counsel filed her response to the pre-hearing questionnaire on September 6 \n2024, again controverting the claim.  \nThe claimant contends that he is still owed temporary total disability benefits from May 31, \n2024, through August 23, 2024. The claimant was assessed an impairment rating of 40% to the body \n\nRangel-H404559 \n3 \n \n \nas  a  whole. The  claimant  is  owed  $44,160.00  in  permanent  partial  disability  benefits. Due  to \ncontroversion of entitled benefits, the respondents are obligated to pay one half of the claimant’s \nattorney’s fees. This includes all indemnity paid after controversion on July 22, 2024. Claimant reserves \nthe right to raise additional contentions at the hearing of this matter.” \nThe  respondents  contend  that “Claimant  declined  medical  treatment  on  May  22,  2024. \nClaimant worked until May 31, 2024, which was the last day of the project and everyone working on \nthat project was laid off. Claimant did not seek medical treatment until June 27, 2024, when he was \nplaced on modified duty. The claim was accepted for a grade 2 sprain of medial collateral ligament of \nthe knee, which his doctor determined to be non-surgical. Claimant was diagnosed with degeneration \nin  the  knee  unrelated  to  the  occupational  injury. Claimant  has  undergone  a  functional  capacity \nexamination, which determined claimant can perform work in the heavy classification. Appropriate \nmedical treatment has been provided to claimant; and no additional benefits are owed.”  \n           From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on May \n15, 2025, and contained in a pre-hearing order filed on that same date are hereby accepted as fact, as \nis the stipulation announced at the hearing that claimant suffered a compensable injury to his left knee \non May 22, 2024. \n 2. Claimant has met his burden of proving he is entitled to temporary total disability from June \n28,  2024,  through August  23,  2024. Claimant  did  not  meet  his  burden  of  proving  entitlement  to \n\nRangel-H404559 \n4 \n \n \ntemporary total disability benefits from May 31, 2024, through June 27, 2024.  \n3. Claimant's attorney is entitled to an attorney fee on temporary total disability benefits and \npermanent partial disability payments previously paid to claimant, on unpaid benefits awarded herein, \nand on future indemnity benefits, if any.  \nHEARING TESTIMONY \n \nClaimant stated on May 22, 2024, he was working for respondent SNS Erectors (herein after \nSNS) at a job site at Nashville, Arkansas. Claimant said that as he was attempting to climb onto the \nback  of  a  semi-truck,  he  stepped  on  one  of  the  rear  wheels  while searching  for  a  hand  hold. He \nsomehow missed his footing, and his left foot and/or knee buckled, and his right foot went down and \ntouched the ground between the tires, causing his left foot to bend behind him. He pulled himself out \nof the position he was in and reported the injury to his boss. He felt excruciating pain in his knee, \ncould not walk well at all, and felt it beginning to swell. His boss asked if he wanted to go to the clinic, \nand  claimant  decided  to  simply  go  to  his  room,  ice  and  elevate  the  leg,  and  try  to  get  the  swelling \ndown. Claimant returned to work the next day and was able to work a half day before returning to his \nroom. After the weekend, claimant was placed on a different job that did not require a lot of walking. \nThe job ended on scheduled on May 29, 2024, then claimant returned home.  \n Claimant’s knee continued to hurt and was swollen after returning home. He called SNS about \nseeing  a  physician, but  the  company  had  no  information  on  physicians  in  Siloam  Springs  where \nclaimant lived. He was eventually sent to Conservative Care in Springdale where he was x-rayed and \ndid physical therapy for a few weeks. He then saw Dr. Craig Murphy two more times before he was \nreferred to an orthopedist, Dr. Tyler Carllee. Claimant then learned that he had injured the MCL in \nhis left knee.  \n Claimant  said  that  he  was  given  restrictions  at  Conservative  Care  on  June  27,  2024,  that \n\nRangel-H404559 \n5 \n \n \nincluded no ladders, stairs, pushing, or pulling over fifteen pounds. He sought legal counsel because \nthe doctor had released him to light duty. The employer had no work for him, and he was not drawing \nweekly checks, so he contacted his attorney. Claimant said that if his employer had cooperated with \nhim on getting treatment for his knee he would have cooperated and would have worked at light duty \nhad it been offered.  \n After  the  AR-C  was  filed, claimant  saw  Dr.  Tyler  Carllee  at  UAMS  Orthopedics  where  he \nbegan more intense physical therapy designed to have the MCL repair itself. Claimant said that his \ntemporary total disability checks began after he saw Dr. Carllee and continued until he was released \nfrom treatment. \n Claimant was advised by his doctor not to have surgery on his left knee because he had had a \ntotal prosthetic knee replacement which claimant had undergone years earlier. Claimant stated that he \nhad no issues with his left knee for four or five years and it did not interfere with his working. \n Claimant testified that he was released from treatment at UAMS in March 2025, at which time \nhe was given a 40% impairment rating on his left lower extremity. After he was released, he began \nworking immediately. Claimant is earning more money at the jobs he has worked since his employment \nended with SNS because he is a union worker. \n Claimant requested temporary total disability benefits from May 29, 2024, when his job ended \nwith  SNS, through August  23,  2024,  when  respondents  began  paying  temporary  total  disability \nbenefits. Claimant also requested attorney’s fees on those sums because he had received no disability \nbenefits prior to retaining counsel.  \n On cross-examination, claimant explained more about his manner of work. He is a member \nof a union hall but can call other union halls to secure work. He said he was sometimes contacted by \ncontractors or business agents regarding jobs in various parts of the country. Claimant learned when \n\nRangel-H404559 \n6 \n \n \nhe started the job at SNS that it would last approximately three or four weeks barring any extraordinary \ncircumstances. He again confirmed that he declined to go to the doctor so SNS would not have lost \ntime injury on their insurance claim. Claimant recognized Respondents Exhibit B, the declination of \ntreatment that he signed on May 23, 2024, which stated: \n“I am declining medical treatment at this time. Should my condition worsen, \nor should I change my mind regarding treatment, I know I must inform my \nsupervisor immediately.” \n \n Claimant did not know if he missed any work with SNS other than going home early a couple \nof days and when the job ended, he had not been told not to work by a doctor. Claimant said he first \nsought medical treatment in mid-June, and it took a little bit of time for him to be sent to Conservative \nCare Occupational Health on June 27, 2024. Claimant said the people he dealt with at SNS was rude \nand he quit talking to them and began dealing with respondent Travelers. Claimant understood that \nhe was told by Dr. Craig Murphy at Conservative Care Occupational Health that he could work within \ncertain restrictions but understood that his physician at UAMS completely restricted him from work.  \n Claimant explained that the way he worked was dependent on his financial need. He had not \nplanned to  work during  the  summer  of 2024, but a  union  representative  asked him a  few  times  to \naccept the job with SNS, and claimant agreed to do so. He did not have an immediate plan to work \nonce the SNS position was over. Claimant understood that he had been released to heavy duty with \nrestrictions on using stairs and ladders. \nMEDICAL RECORDS REVIEW \n \n Claimant submitted 50 pages of medical records, while respondents submitted 31 pages, five \nof which duplicated claimant’s submission. These will be reviewed in chronological order. \nAs claimant testified, he was first seen at Conservative Care Occupational Health on June 27, \n2024, Dr. Craig Murphy believed claimant had suffered an MCL strain and prescribed physical therapy \n\nRangel-H404559 \n7 \n \n \nfor that as well as Naproxen, ice and heat treatment and restricted claimant’s activity to no climbing \nstairs, no lifting, no pushing or pulling over fifteen pounds.  Claimant began physical therapy on July \n8, 2024, with the stated goal of returning claimant to his previous employment without restrictions. \nHe returned  to  see  Dr.  Murphy  on  July  11,  2024,  but  there  was  no  change  in  the  diagnosis  and \nrecommended treatment. Physical therapy did not yield any improvement and on July 26, 2024, Dr. \nMurphy referred claimant to an orthopedic doctor. Claimant had three visits with Dr. Tyler Carllee \nbefore he was referred to a total joints surgeon.  \nClaimant  next saw  Dr.  Benjamin  Stronach  at  UAMS, who  referred  him  for  a  functional \ncapacity  evaluation  (FCE).  The  FCE was  conducted  of  February 4,  2025, in  which  he  put  forth  a \nreliable effort. Based on the results, the evaluator concluded claimant was able to work in the heavy \nclassification  as  far  as  his  ability  to  lift  and  carry  up  to  fifty  pounds  on  a  frequent  basis  and  an \noccasional  lift  and  carry  up  to  one  hundred  pounds. The  examiner  noted  that  claimant  did  not \ndemonstrate an ability to kneel, and his crouching should be done only occasionally. It was noted that \nwhen claimant was carrying heavy weights, his left lower extremity limp increased and a mild limp on \nclaimant’s left lower extremity when he was walking and gradually worsening by the end of the activity.  \nAfter some additional physical therapy, Dr. Stronach recorded on March 6, 2025:  \n“He has plateaued in regard to benefits of physical therapy. At this point  I \nwould not  recommend  any  further  intervention  for  his  left  knee. He  does \nhave some stable radiolucencies appreciated around the left knee implant with \nno  evident changes  since we  have seen  him with  multiple, serial x-rays. He \ndoes  have  continued  pain  since  his  injury. At  this  time,  I  have  not \nrecommended any surgical intervention. He may require a revision of his left \ntotal knee replacement in the future.” \n \n \nNON-MEDICAL RECORD REVIEW \n Claimant submitted thirteen pages of non-medical exhibits which outlined the history of this \nmatter from July 16, 2024, through September 6, 2024. These records demonstrate that after claimant \n\nRangel-H404559 \n8 \n \n \nretained counsel and filed his AR-C Form on July 19, 2024, the employer denied that there was an \ninjury  as  per  the  statutory  definition  of  that  term. Further, respondents’ prehearing questionnaire \nresponse as of September 6, 2024, stated that an issue to be litigated was “compensability of an alleged \ninjury to the left knee.” \n Respondents’ non-medical documentary evidence consisted of four pages, which included the \ndeclination of treatment form claimant signed on May 23, 2024, and the physician’s report from Dr. \nMurphy following the claimant’s first visit with him in which claimant was released to return to work \nwith the restrictions of “No climbing stairs, no lifting, pushing pulling over fifteen pounds.”   \nADJUDICATION \n \nClaimant  seeks  TTD  benefits  from  May 31,  2024,  the  date  after  he  last  worked  for  SNS, \nthrough August 23, 2024, which is when the insurance carrier for SNS agreed to start paying TTD \nbenefits. Claimant also requests attorney’s fees on all indemnity benefits that have been paid and those \nthat may be awarded.  \n The parties have stipulated that a compensable injury to claimant’s left knee occurred on May \n22, 2024. While claimant did not receive any medical treatment for the injury until June 27, 2024, I \nbelieve  his  testimony  that  the  injury  noted  at  the  first  visit  to  a  medical  provider  was  the  one  he \nsuffered on May 22, 2024. However, claimant continued to work at a modified position until that job \nwas finished. Claimant candidly said he was not planning to work during the summer of 2024; as he \nput it “I let my bank account decide when I need to go to work” (T.46). However, he also said that \nhis finances were running low when he retained the services of his attorney (T.50). Accepting both \nstatements as true, I conclude claimant would not have been working before his financial situation \nmandated it rather than because he was physically unable to do so, and deny his claim for TTD from \nMay 31, 2024, through June 27, 2024.  \n\nRangel-H404559 \n9 \n \n \n It is my opinion that claimant entered his healing period when he sought medical treatment as \nhe became interested in working again. When he was given the physical limitations noted above by \nDr. Murphy, I believe claimant realized he was about to be in a financial bind due to those restrictions \nwhich would limit his employment options. He testified that he talked to representatives of respondent \nTravelers but was unable to secure temporary disability payments until after he hired counsel. As such, \nI am awarding  claimant  TTD  from  June  28,  2024,  through  August 23,  2024,  the  date respondents \nbegan paying TTD benefits.\n2\n   \n As to the claim for an award of an attorney’s fee, the decision to deny indemnity benefits for \nclaimant’s knee injury was made before claimant hired an attorney, as witnessed by the AR-2 form \nfiled on July 22, 2024, three days after claimant’s AR-C (CL.NMX.2-3), and continued through the \nfiling of respondent’s pre-hearing questionnaire response on September 6, 2024.  I find Cleek v. Great \nSouthern Metals, 335 Ark. 342, 981 S.W.2d 529 (1998) and Lee v. Alcoa Extrusion, Inc., 9 Ark. App. 228, \n201 S.W.3d 449 (2005) govern this matter; from reading these cases (and others), I believe it is the \ndenial of a claim before counsel is employed that is most relevant in determining if an attorney's fee is \nappropriate;  it  seems  even  more  appropriate  when  the  claim  continued  to  be  denied  after claimant \nretained his attorney. \"One of the purposes of the attorney's fee statute is to put the economic burden \nof litigation on the party who makes litigation necessary,\" Lee, supra. It was respondent's initial denial \nthat made the litigation necessary, and thus an award of an attorney's fee to claimant's counsel on all \nindemnity payments is appropriate under the facts of this case, including those benefits agreed to by \nthe parties in their post-hearing agreed order.  \n \n \n2\n Respondents  paid  TTD  until  claimant  returned  to  work.    As  claimant  has  a  scheduled  injury, TTD  would  have \nproperly  ended  when  claimant  returned  to  work  or  had  reached  maximum  medical  improvement, Wheeler \nConstruction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001)  \n\nRangel-H404559 \n10 \n \n \n \nORDER \n \n Respondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one half by the carrier and one \nhalf by the claimant. \nThe respondent shall pay the court reporter's fee in the amount of $625.00. \nAll issues not addressed herein are expressly reserved under the Act. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":19501,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404559 RONNY L. RANGEL, EMPLOYEE CLAIMANT S N S ERECTORS INC., EMPLOYER RESPONDENT TRAVELERS PROPERTY CASUALTY CO. OF AMERICA, CARRIER/TPA RESPONDENT AMENDED OPINION FILED SEPTEMBER 10, 2025 1 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Sprin...","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":["knee","sprain","back","strain"],"fetchedAt":"2026-05-19T22:36:14.097Z"},{"id":"alj-H401828-2025-09-09","awccNumber":"H401828","decisionDate":"2025-09-09","decisionYear":2025,"opinionType":"alj","claimantName":"Keicha Robinson","employerName":"Ace Hardware Corp","title":"ROBINSON VS. ACE HARDWARE CORP. AWCC# H401828 September 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Robinson_Keicha_H401828_09092025.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Robinson_Keicha_H401828_09092025.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H401828 \n \nKEICHA ROBINSON,  \nEMPLOYEE                                                                                                                     CLAIMANT \n \nACE HARDWARE CORP., \nEMPLOYER                                                                                                                   RESPONDENT \n \nINDEMNITY INS. CO. OF AMERICA, \nCARRIER/TPA                                                                                                           RESPONDENT  \n \nGALLAGHER BASSETT SERVICES INC., \nTHIRD PARTY ADMINISTRATOR                                                                                       RESPONDENT  \n \nOPINION FILED SEPTEMBER 9, 2025 \n \nHearing  before  Administrative  Law  Judge Steven  Porch on August 12,  2025, in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant was Pro Se, Little Rock, Arkansas. \n \nThe Respondents were represented by Mr. Rick Behring, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non May 30, 2025. No testimony was taken in the case. Claimant, who according to Commission \nrecords is pro se, failed to appear at the hearing. \nThe Claimant worked for the Respondent/Employer as a warehouse specialist. The date for \nClaimant’s  alleged  injury  was  on January 10,    2024.    She    reported    her    injury    to \nRespondent/Employer  on the  same  day.  Admitted  into  evidence  was  Respondents’ Exhibit  1, \npleadings  and  correspondence,  consisting  of 28 pages.  I  have  also admitted  into  the  record \nCommission’s Exhibit 1, correspondence, pleadings, and return receipts, consisting of 6 pages, as \ndiscussed infra. \n\nROBINSON H401828 \n \n 2 \nThe record reflects on March 14, 2024, a Form AR-1 was filed in this case, purporting that \nClaimant was experiencing some pain in her left knee but was not sure how it occurred. She further \nstated that she woke up that morning with a sore knee. Respondents on March 18, 2024, filed a \nForm AR-2, denying compensability of Claimant’s alleged injuries due to the lack of a specific \nincident. The Claimant next requested a full hearing on April 3, 2024. A prehearing questionnaire \nwas sent to Claimant on June 18, 2024. Claimant’s prehearing questionnaire was due July 8, 2024. \nThe Claimant was granted additional time to turn in her prehearing questionnaire but failed to do \nso. As a result, the file was returned to general files on July 24, 2024.  \nThe Claimant has taken no action towards the prosecution of her claim since her file was \nreturned  to  general  files. The  Respondents  next  filed  a  Motion  to  Dismiss  on May 30,  2025, \nrequesting this claim be dismissed for a lack of prosecution. The Claimant was sent, certified and \nregular  U.S.  Mail,  notice  of  the  Motion  to  Dismiss  from  my  office  on June  4,  2025,  to  her  last \nknown address. The certified notice was claimed by Claimant on June 10, 2025. Claimant did not \nrespond to the notice in writing as required. Thus, in accordance with applicable Arkansas law, the \nClaimant was mailed due and proper legal notice of Respondents’ Motion to Dismiss hearing date \nat her current address of record via the United States Postal Service (USPS), First Class Certified \nMail,  Return Receipt  Requested,  and  regular  First-Class  Mail,  on July 8,  2025.  The  certified \nhearing notice was claimed by Claimant on July 15, 2025. The hearing took place on August 12, \n2025. The Claimant did not show up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n\nROBINSON H401828 \n \n 3 \n \n2. The Claimant and Respondents both had reasonable notice of the August 12, 2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13 (now codified at 11 C.A.R.  \n§25-110(d)).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \nConsistent with 11  C.A.R.  §25-110(d)), the  Commission  scheduled  and  conducted  a \nhearing, with proper notice, on the Respondents’ Motion to Dismiss. The certified hearing notice \nwas  claimed  by  Claimant  on July 15,  2025. Respondent’s counsel was present and argued the \nmotion. Thus, I find by the preponderance of the evidence that reasonable notice was given to both \nparties.  \n11 C.A.R. §25-110(d)), allows the Commission, upon meritorious application, to dismiss \nan  action  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant’s filed was  returned  to \ngeneral files on July 24, 2024. Since then, the Claimant has not taken steps to prosecute her claim, \ni.e. return prehearing questionnaire or comply with Respondents discovery request. Therefore, I \ndo find by the preponderance of the evidence that Claimant has failed to prosecute her claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based on the Findings of Fact and Conclusions of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n \n\nROBINSON H401828 \n \n 4 \n      \n \n IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":5856,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401828 KEICHA ROBINSON, EMPLOYEE CLAIMANT ACE HARDWARE CORP., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF AMERICA, CARRIER/TPA RESPONDENT GALLAGHER BASSETT SERVICES INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 9, 2025 Hearing before Adm...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:36:09.922Z"},{"id":"alj-H501827-2025-09-08","awccNumber":"H501827","decisionDate":"2025-09-08","decisionYear":2025,"opinionType":"alj","claimantName":"Earnestine Jackson","employerName":"St. Francis Area Dev. Ctr., Inc","title":"JACKSON VS. ST. FRANCIS AREA DEV. CTR., INC. AWCC# H501827 September 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Jackson_Earnestine_H5018278_20250908.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jackson_Earnestine_H5018278_20250908.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H501827 \n \nEARNESTINE JACKSON, EMPLOYEE   CLAIMANT \n \nST. FRANCIS AREA DEV. CTR., INC., EMPLOYER   RESPONDENT \n \nATA WORKERS’ COMP. SI TRUST, CARRIER/ \nRISK MANAGEMENT RESOURCES, TPA   RESPONDENT \n \n \nOPINION FILED SEPTEMBER 8, 2025 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on August  1,  2025,  in Forrest  City, \nArkansas. \n \nClaimant was Pro Se, Hughes, Arkansas. \n \nRespondents were represented by Ms. Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  full  hearing  was  held  on  this  claim  on August  1,  2025.  A  prehearing  telephone \nconference  took  place  on June  11,  2025.  A  prehearing  order  was  entered  on  that  date  and \nsubsequently entered into evidence as Commission Exhibit 1. The parties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. An employer/employee/carrier relationship existed among the parties on \nDecember 22, 2024, when Claimant allegedly sustained a compensable \ninjury resulting in Post Traumatic Stress Disorder. \n \n3. Respondents denied the claim in its entirety.  \n \n4. The  parties  stipulate  to  Claimant’s  average  weekly  wage  of  $278.68 \nentitling her to temporary total disability (TTD) benefit rate of $186.00 \nweekly, and her permanent partial disability (PPD) benefit rate of $154.00 \nweekly.  \n\nJACKSON H501827 \n \n2 \n \n \n \n \nThe parties have identified the following issues to be adjudicated: \n1. Whether Claimant suffered a compensable injury in the form of Post Traumatic Stress \nDisorder (PTSD) by specific incident.\n1\n \n \n2. Whether Claimant is entitled to reasonable and necessary medical treatment and related \nexpenses. \n \n3. Whether  Claimant  is  entitled  to Temporary Total  Disability  (TTD)  benefits  from \nDecember 23, 2024, to May 17, 2025. \n \n All other issues are reserved. \n \nCONTENTIONS \nClaimant contends: \nThe client ate his dinner around 1:30 a.m.  He got up and pushed me over on the couch and \nstarted humping on me. \nRespondents contend: \nThat Claimant did not suffer a compensable mental injury under the Arkansas Workers’ \nCompensation Act. Alternatively, respondents contend that in the event compensability is found, \nthe medical documentation does not support the entitlement to benefits associates with such injury, \nnor do they support entitlement to indemnity benefits. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary  record,  I  hereby  make  the  following  Findings  of  Fact  and  Conclusions  of  Law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n \n1\n This issue was slightly amended by the Commission, without objection from the parties, so that it would be clear \nand precise. \n\nJACKSON H501827 \n \n3 \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant has not proven by the preponderance of the evidence that she suffered a \ncompensable injury in the form of PTSD by specific incident.  \n \n4. Based  on  my  findings  of  no  compensability,  the  remaining  issues  of  reasonable  and \nnecessary medical treatment, and temporary total disability benefits are moot and will \nnot be addressed in this opinion. \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, medical bills and records, consisting of 21 \npages, Claimant’s Exhibit 2, medical records, that consists of 38 pages, Claimant’s Exhibit 3, \npolice report, consisting of 2 pages, Respondents’ Exhibit 1, medical records, that consist of 17 \npages, and Commission Exhibit 1, Pre-Hearing Order filed June 11, 2025, that consists of 5 pages. \nThe Claimant, Melissa Ward, and Gregory Gordan were the witnesses that testified at the full \nhearing.  \nClaimant was employed as a direct support professional for the Respondent/Employer. The \nClaimant was responsible for caring for elderly patients who had mental difficulties. On December \n22, 2024, Claimant was tending to a patient named Shilford “Paw-Paw” Anderson, when he pushed \nher onto a couch and began to hump her, on the left side of her body, in a sexual manner. The \nClaimant screamed for help which caused Mr. Anderson to stop and leave the area. The Claimant \ntestified that this attack went on for approximately 1 minute. TR 20-21. The Claimant testified that \nshe thought she was fine until she saw Mr. Anderson and began to feel uneasy. TR 22. The Claimant \ntestified that she has never been sexually assaulted, and that this situation was a lot on her. TR 21  \nThe Claimant eventually went to Arisa Health, in West Memphis, Arkansas and was \ndiagnosed by Sabrina Lewis, a mental health care worker, with PTSD on February 11, 2025. \nRespondents Ex. 1, pp. 12, 16. The Claimant received follow-up treatment by Joseph Labonte, a \n\nJACKSON H501827 \n \n4 \n \nnurse practitioner, on March 13, 2025, who noted that Claimant’s PTSD was stable. Id. Anita \nKirby, case manager, signed off on Mr. Labonte’s report. Id. All of Claimant’s mental health \ntreatment for this work-related incident involved the aforementioned individuals. See Claimant’s \nEx. 2. \nAdjudication \nA. Whether Claimant suffered a compensable injury in the form of Post Traumatic \nStress Disorder by specific incident. \n Under Arkansas Code Annotated § 11-9-113(a) (Repl. 2012) provides: \n(a)(1) A mental injury or illness is not a compensable injury unless it is caused by \nphysical injury to the employee’s body, and shall not be considered an injury arising \nout of and in the course of employment or compensable unless it is demonstrated \nby a preponderance of the evidence; provided, however, that this physical injury \nlimitation shall not apply to any victim of a crime of violence. \n \n(2) No mental injury or illness under this section shall be compensable unless it is \nalso diagnosed by a licensed psychiatrist or psychologist and unless the diagnostic \nof the condition meets the criteria established in the most current issue of the \nDiagnostic and Statistical Manual of Mental Disorders [“DSM”]. \n \n Based on § 11-9-113(a)(1) the Claimant must prove that the alleged condition was caused \nby a physical injury to her body. The exception to the physical injury requirement is a “crime of \nviolence” which has been alleged to have occurred here. The Claimant testified that she was pushed \nonto a couch by a patient and humped in a sexual manner against her will.  Claimant testified that \nshe screamed, and the episode continued for approximately 1 minute. TR 19-21. I credit Claimant’s \nstatement. According to Ark. Code Ann §5-14-125(a)(1) states that a person commits sexual \nassault in the second degree if the person “Engages in sexual contact with another person by \nforcible compulsion....” This is a class B felony punishable by imprisonment, 5 to 20 years. See \nArk. Code Ann. §5-14-125(b)(1) and Ark. Code Ann. §5-4-401(a)(3). Forcible compulsion means \nphysical force. See Ark. Code Ann §5-14-101(3). The Claimant testified that she was pushed onto \na couch against her will. Sexual contact is defined by Ark. Code Ann. §5-14-101(12)(A) as an “act \n\nJACKSON H501827 \n \n5 \n \nof sexual gratification involving the touching, directly or through clothing, of the sex organs, \nbuttocks, or anus of a person or the breast of a female....” The Claimant testified that Mr. Anderson \nwas humping her around the left hip area which would include her buttocks. TR 18-21. \n Moreover,  this  incident  could  be  looked  at  as  attempted  rape. Rape  occurs  when  an \nindividual engages in sexual intercourse or deviate sexual activity with another person by forcible \ncompulsion. See Ark. Code Ann §5-14-103(a)(1). Attempted rape occurs when a person purposely \nengages in conduct that constitutes a “substantial step in a course of conduct intended to culminate \nin the commission of an offense whether or not the attendant circumstances are as the person \nbelieves them to be.” Ark. Code Ann §5-3-201(a)(1). I find by the preponderance of the evidence \nthat Mr. Anderson took a substantial step in trying to have sexual intercourse with the Claimant by \nforcible compulsion. I further find both offenses, second degree sexual assault and attempted rape, \nwere consummated by Mr. Anderson against the Claimant. I also find they are both violent \noffenses, especially the attempted rape. See Ark. Code Ann §5-73-202(1)(D). Thus, I find by the \npreponderance of the evidence that Claimant’s work-related incident meets the definition of a \ncrime of violence. Therefore, no physical injury is required to be proven for Claimant’s alleged \nmental injury.  \n Next, according to A.C.A. §11-9-113(a)(2) (Repl. 2012), Claimant’s diagnosis of PTSD \nmust be diagnosed by a licensed psychiatrist or licensed psychologist. Here is where Claimant’s \nclaim fails. Claimant’s diagnosis was done by Sabrina Lewis, a mental health counselor, and her \nongoing treatment was  done by Joseph Labonte, a nurse practitioner. The Claimant has not \nproduced one report demonstrating that her PTSD diagnosis, for her work-related incident, was \never made by a licensed psychiatrist or psychologist. Thus, her claim must fail. Therefore, I find \n\nJACKSON H501827 \n \n6 \n \nthat the Claimant has failed to prove by the preponderance of the evidence that she suffered a \ncompensable injury in the form of PTSD by specific incident.  \n                                         MISCELLANEOUS ISSUES \n Based on my previous findings that Claimant has failed to prove that she sustained a work-\nrelated  injury  by  specific  incident,  the  remaining  issues  regarding  reasonable  and  necessary \nmedical treatment, and temporary total disability benefits, are moot and will not be addressed in \nthis opinion.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ___________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":10420,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H501827 EARNESTINE JACKSON, EMPLOYEE CLAIMANT ST. FRANCIS AREA DEV. CTR., INC., EMPLOYER RESPONDENT ATA WORKERS’ COMP. SI TRUST, CARRIER/ RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED SEPTEMBER 8, 2025 Hearing before Administrative Law Judge, Stev...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["hip"],"fetchedAt":"2026-05-19T22:36:05.683Z"},{"id":"alj-H208121-2025-09-08","awccNumber":"H208121","decisionDate":"2025-09-08","decisionYear":2025,"opinionType":"alj","claimantName":"Zuleyka Pichardo","employerName":"Prairie Grove Elementary School","title":"PICHARDO VS. PRAIRIE GROVE ELEMENTARY SCHOOL AWCC# H208121 September 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PICHARDO_ZULEYKA_H208121_20250908.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PICHARDO_ZULEYKA_H208121_20250908.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H208121 \n \nZULEYKA PICHARDO, Employee CLAIMANT \n \nPRAIRIE GROVE ELEMENTARY SCHOOL, Employer RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT \n \n \n \n OPINION FILED SEPTEMBER 8, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by JAMES A. ARNOLD II, Attorney at Law, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n \n On June  10,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.   A pre-hearing conference was conducted on August 26, 2024, and an amended Pre-\nhearing Order was  filed on April 15, 2025.   A copy of the Pre-hearing Order has been marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The   relationship   of   employee-employer-carrier   existed   between   the   parties on \nNovember 4, 2022. \n 3. The respondents have controverted this claim in its entirety. \n\nPichardo – H208121 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $245.00  for  temporary  total  disability  benefits  and  $184.00  for  permanent  partial \ndisability benefits. \n 5. The claimant reserves all other issues. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  her  thoracic  outlet  resulting  in \nthoracic outlet syndrome. \n 2. Whether Claimant is entitled to medical treatment as recommended by Dr. Christopher \nDougherty, including treatment for thoracic outlet syndrome. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  October  31, \n2024, to a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney’s fee. \n The claimant's contentions are as follows: \n“Claimant contends she is entitled to treatment as recommended by \nDr.  Dougherty  for  her  injuries  sustained  on  11/4/2022,  including \ntreatment for thoracic outlet syndrome.” \n \n The respondents’ contentions are as follows: \n“All appropriate benefits have been paid.” \n \n The claimant in this matter is a 38-year-old female who alleges to have sustained thoracic \noutlet syndrome in an incident that she alleges to have occurred on or about November 4, 2022. \nThe  claimant  was  employed  by  the  respondents  to  prepare  meals  for  school  children.  On  direct \nexamination the claimant described her alleged incident as follows: \nQ And what was your job there? \n \n\nPichardo – H208121 \n \n-3- \nA I  was  serving  food  to  the  students.  I  was  also  preparing \nfood  for  the  students  and  cleaning  the  areas  where  the  food  was \nserved. \n \nQ And what happened on November 4\nth\n of 2022? \n \nA I  was  serving  lunch,  some  food  during  lunch.  One  of  my \nfriends handed me a pizza tray. I put the pizza tray in the warmer. \nSo when  I  was turning around,  I  actually slipped and  I fell on my \nknee.  When  I  was  trying  to  hold  on  to  something  with  my  left \nhand, on the sting table that they had, and tried to get up, there was \na police officer. He was a co-worker. His name was Paredes and he \ntried  to  help  me  up.  So  I  went  to  the  office,  to  the  manager, \nDanielle.  I  actually  went  with  the  officer  and  he  helped  me \ninterpret. \n \nQ Okay. Just a minute. I want to go back for a moment to the \nway  you  fell.  You  said  you  fell  onto  your  knee  first.  Which  knee \nwas that? \n \nA It was the right knee. \n \nQ Okay.  And  after  you  hit  the  floor  on  your  right  knee,  then \nwhat happened to your body? \n \n THE  INTERPRETER:  Your  Honor,  may  the  interpreter \ninquire? \n \n THE COURT: You may. \n \n THE WITNESS: Yes. So when I fell and as I was falling, I \nwas  like  trying  to  hold  onto  something.  I  put  some  force  out  and \nthen I hold onto a sting table. \n \n THE INTERPRETER: And the interpreter asked, “What is \na sting table?” It’s a serving table. It is a table where you serve the \nfood. \n \n THE COURT: Thank you for that explanation. \n \nQ [BY MS BROOKS]: And how did you land? \n \nA I slipped. \n \n\nPichardo – H208121 \n \n-4- \nQ And  did  you  fall  onto  your  back  or  onto  your  side?  How \ndid you land? \n \nA I fell on my back. \n \n As seen in Claimant’s Exhibit 1, page 1, the claimant initially complained of low back, \nupper back, and right knee pain. Over time, the claimant’s complaints of pain began to change. \nShe began to complain of neck pain and upper extremity pain in a physical therapy report dated \nJune 5, 2023. Clearly, the medical records show that the claimant’s difficulties revolved around \nher low back, upper back, and right knee throughout the majority of the first year following her \nalleged fall.  \n In   the   current   hearing   before   the   Commission   the   claimant   is   only   alleging \ncompensability  of  thoracic  outlet  syndrome.  While  medical  records  detail  other  issues,  thoracic \noutlet syndrome is the only issue germane to this hearing. \n The  claimant  was  referred  by  Dr.  Christopher  Dougherty  to  Dr.  James  Counce,  who \nperformed  surgery  on  the  claimant  for  thoracic  outlet  syndrome  on  October  31,  2024,  at \nWashington Regional Medical Center. \n Dr.  Counce  underwent  a  deposition  that  was  taken  on  April  1,  2025.  In  that  deposition \nDr. Counce gave deposition testimony that included a description of thoracic outlet syndrome as \nfollows: \nQ Tell us about thoracic outlet syndrome. I’ve been doing this \nfor  47  years  or  so  now,  and  I  can  count  probably  on  two  or  three \nfingers the number of cases I have had regarding that condition.  \n \nQ [SIC] Thoracic    outlet    syndrome    is    a    compression \nsyndrome  associated  with  either  thoracic  inlet  or  thoracic  outlet, \nwhich  is  this  small  space  where  structures  are  traveling  from  the \nneck to the chest or from the chest to the neck, are compressed by \nfirst  rib  muscles  and  other  things,  and  it  can  cause  a  variety  of \nproblems:  pain,  swelling.  It  can  cause  arterial  aneurisms;  it  can \n\nPichardo – H208121 \n \n-5- \ncause  venous  occlusion;  it  can  cause  neuralgia  from  these  nerve \ntrunks  that  are  coming  from  the  neck  down  to  the  arm.  It’s  a \nsyndrome; it’s not a disease and so it’s hard to assign a single \nbloodwork or single test. It’s more a constellation of symptoms \nand findings and lack of findings, also, that go with thoracic outlet \nsyndrome. \n \nQ Am I correct in understanding that thoracic outlet syndrome \ncan  either  be  due  to  trauma  or  can  be  due  to  congenital  or \nanatomical variants? \n \nA That’s correct. \n \nAs an administrative law judge, I have seen multiple injuries of all sorts and kinds over the last \nnearly  18  years;  however,  this  is  my  first  thoracic  outlet  syndrome  case  to  the  best  of  my \nrecollection. Upon review of Dr. Counce’s, Dr. Dougherty’s, and the claimant’s testimony, as \nwell  as  other  medical  evidence  admitted,  I  feel  that  I  have  a  firm  grip on the  syndrome  and  its \neffects. It appears that in layman’s terms, much like a water hose being kinked inside the body, \nthis syndrome, while not affecting the flow of water, affects the flow of blood and nerve signals \nto  the  upper  extremities  of  the  human  body.  This  syndrome,  apparently,  can  be  brought  on \nacutely  through  trauma  or  can  be  brought  on  by  the  presence  of  anatomical  anomaly.  Just  as  a \nwater hose kinks and prevents the movement of water, this condition prevents the movement of \nblood flow and nerve signals. \n Dr.  Counce  was  questioned  in  his  deposition  by  the  respondents’  attorney  about  the \nhistory the claimant provided to him regarding her injury as follows: \nQ When  you  initially  saw  this  patient,  what  history  did  you \nget from her? \n \nA What  I  have  recorded  is  she  was  37  years  old  at  the  time \nthat I saw her and she fell at work two years ago and had to catch \nherself  on  her  left  arm  and  since  then  she  has  had  pain.  She  has \nweakness,  numbness,  tingling  in  the  left  arm,  and  discoloration \nwhen she raises her left arm. She has – she had undergone physical \n\nPichardo – H208121 \n \n-6- \ntherapy and extensive imaging workup. An MRI, the chest showed \nmild or moderate narrowing of the left subclavian vein with venous \ncollaterals underlying the clavicle in the arms-up position, and she \nwas  referred  to  us  because – and  I  have  forgotten  who  it  was  that \nreferred  her  to  us  because  they  thought  she  had  thoracic  outlet \nsyndrome. \n \nQ I  believe  that  was  Dr.  Dougherty  who  she  had  last  seen \nbefore she saw you. \n \nA Okay. \n \nQ The  claim  is  that  this  thoracic  outlet  syndrome  arose  as  a \nresult of the fall that occurred. Do you have  an opinion as to that, \nother than relying on the history she gave you? In other words, was \nthere  anything  about  her  physical  findings,  either  on  examination \nor during the operative procedure, which suggests that it had been \ndue to trauma as opposed to something else? \n \nA No. \n \nQ So,   any   opinion   regarding   work-relatedness   would   be \ndependent on the history that she gave you? \n \nA That’s correct. \n \nMedical records submitted into evidence do not support the claimant’s claims of left arm \ndifficulties  since  her  initial  November  4,  2022,  incident.  It  was  nearly  a  year  after  that  incident \nthat  the  claimant  reported  any  difficulties  that  did  not  revolve  around  her  right  knee,  lumbar  or \nthoracic spine. The claimant in this matter gave cross examination testimony regarding previous \nphysical issues she had encountered in life. Upon my review of the claimant’s testimony that \nfollows, I find the claimant to be either a very poor historian or untruthful to the Commission. \nHearing Transcript, page 14 line 17 to page 15 line 24 \nQ Now,  before  you  had  this  accident  in  November  of  2022, \ndo you recall having any problems with your back? \n \nA I don’t remember. \n \n\nPichardo – H208121 \n \n-7- \nQ And  do  you  remember  in  your  deposition  when  the  other \nattorney  asked  you  if  you  had  ever  had  any  problems  with  your \nback or with your neck before? \n \nA I don’t remember very well. \n \nQ All  right.  But  if  you  had  been  asked  that  question,  do  you \nrecall  any  problems  that  you  had  had  before  with  your  back  or \nneck? \n \nA No. I don’t remember. \n \nQ So in your medical records introduced by the Respondents, \nit looks like in March of 2018, you had some low back pain with a \nlittle pain going down maybe your right buttock and your right leg. \n \nA No. I don’t remember. \n \nQ Okay.  And  did  you  have  any – do  you  recall  having  any \nongoing treatment after early 2018 for any kind of back problems? \n \nA No. I don’t remember. \n \nQ Okay. And there is one record in the Respondents’ Exhibit \nfrom  May  1\nst\n of  2020  that  mentions  your  neck.  Do  you  recall \nhaving any problems with your neck? \n \nA No. I don’t remember. \n \nQ Okay. And do you recall having any sort of testing for your \nneck or for your low back? \n \nA No. I don’t remember. \n \nQ Okay. So do you remember having any problems with your \nfeet prior to this accident? \n \nA No. I don’t remember. \n \nQ Okay. So do you recall going to a doctor about your feet? \n \nA No. I don’t remember. \n \nHearing Transcript, page 16 line 24 to page 17 line 9 \n\nPichardo – H208121 \n \n-8- \nQ Okay. That wasn’t my question. My question was do you \nrecall  telling  me  in  your  deposition  that  Dr.  Kempson  had  never \ntreated you for your back, your neck, your shoulders, anything like \nthat? Do you recall that? \n \nA No. I don’t remember that. \n \nQ Okay.  Well,  the  Judge  has  got  your  deposition  transcript \nand he can see what you told me. \n \n What  you  actually  told  these  doctors  was  that  you  had \nnever had any problems with your arm or shoulder or back prior to \nthis fall at work on November 4, 2022; correct? \n \nA No. I don’t remember. \n \nHearing Transcript, page 19 line 5 to page 19 line 13 \nQ [BY MR. ARNOLD]: You already testified here today that \nyou didn’t have any neck or left shoulder pain before November 4\nth\n \nof 2022; is that correct? \n \nA I don’t remember saying that. I don’t remember. \n \nQ Okay.  You  were  treated  in  2020  by  Dr.  Kempson,  your \nfamily doctor, for neck  pain, left posterior pain,  muscle spasms in \nyour neck and over the left trapezius muscle. Do you recall that? \n \nA No. I don’t remember that. \n \nHearing Transcript, page 19 line 22 to page 19 line 25 \nQ [BY  MR.  ARNOLD]:  Do  you  recall  seeing  a  doctor  on \nOctober  4,  2022,  and  preparing  a  diagram  which  said  you  were \nhaving pain in your bilateral shoulders? \n \nA I don’t remember drawing anything like that. \n \nHearing Transcript, page 21 line 25 to page 22 line 5 \nQ Left arm. Okay. And then when you saw the doctor next on \nNovember  16\nth\n of  2022,  do  you  recall  what  complaints  that  you \ngave them and what parts of your body they were evaluating? \n \nA I don’t remember the dates as you are saying them because \nI don’t know which doctor I saw. \n \nHearing Transcript, page 22 line 24 to page 22 line 25 \n\nPichardo – H208121 \n \n-9- \nQ They didn’t do X-rays of your knee? \n \nA I don’t remember. \n \nHearing Transcript, page 27 line 11 to page 28 line 8 \nQ I  only  find  one  note  in  all  the  records  from  Dr.  Kempson \nthat  references  any  problems  with  your  neck  and  that  was  from \nMay  1\nst\n of  2020.  Do  you  ever  recall  having  actual  treatment  for \nyour neck by Dr. Kempson? \n \nA No. I don’t remember. \n \nQ Do you know what kind of a doctor Dr. Kory Miskin is? \n \nA The thing is it has been several years, so no, no. I don’t \nremember. \n \nQ Okay.  Well,  on  Page  32  of the  Respondents’  Exhibit,  it \nindicates that your family doctor is referring you to Dr. Miskin for \nbilateral  foot  pain.  Do  you  ever  remember  seeing  Dr.  Miskin  for \nfoot pain? \n \nA I don’t remember. \n \nQ Because  there  are  no  records  associated  with  this  one \ndocument on Page 34 of the Respondents’ Exhibit, nothing at all \nexcept this one page, that purports to be from Dr. Miskin. \n \nA I don’t have any knowledge of that. \n \nQ Okay. Because it says the date of service was October 4\nth\n of \n2022,  which  was  a  month  before  your  fall  at  work.  Do  you  recall \nseeing a foot doctor around a month before your fall? \n \nA No. I don’t remember. \n \nUpon  review  of  the  medical  evidence  submitted  by  both  the  claimant  and  the  respondents,  it \nappears that the claimant’s testimony differs greatly from the medical evidence submitted into \nthe record. \n Dr. Counce, who performed the claimant’s thoracic outlet syndrome surgery discussed \nhis findings of an old fracture to the claimant’s first rib and scarring in that same area as follows: \n\nPichardo – H208121 \n \n-10- \nQ What  is  the  significance  of  there  being  an  old  fracture  in \nthat  area?  Does  that  play  any  role  in  trying  to  determine  whether \nher thoracic outlet syndrome is related to the trauma that fractured \nthe rib or otherwise? \n \nA It’s just a comment on the findings. It’s not related to the \nchronology  of  anything,  and  I’m  not  sure  that  there  is  any \nsignificance in it other than that’s what I felt, that at some time in \nthe past she had a first rib fracture. \n \nQ Did  you  necessarily  associate  that  with  this  fall  that  she \ndescribed to you? \n \nA No, sir. \n \nQ Was there something  about the fracture of the first rib that \ncaused   the   compression   that   produced   this   constellation   of \nsymptoms? \n \nA There  wasn’t  anything  that  I  could  identify  about  the \nfracture that was there; just commenting on the fact that it was not \npristine  up  there,  like  there  had  not  ever  been  any  trauma.  There \nwas clearly some trauma at some point and time. I don’t know \nwhen or where or whether I can directly attribute it to her thoracic \noutlet syndrome. \n \nQ Was  there  any  other  scarring  in  the  area?  In  other  words, \nwhat was causing the compression? \n \nA Well, the – what she has more than anything that was least \ndemonstrable was compression of her subclavian vein here. Okay? \n \nQ Okay. \n \nA That’s compressed by the first rib in various provocative \nmaneuvers;  for  instance,  in  an  MRI  when  she  raised  her  arm  over \nher head. It’s also indicated in the MRI but the ... so you do two \nthings  in  this  operation  in  order  to  relieve  that.  One  is  to  remove \nthe  first  rib,  which  opens  up  the  thoracic  outlet;  and  the  second \nthing is if there is a scar surrounding the subclavian vein then you \nrelease this scar, that’s what a venolousness is is the liceis of this \nscar  round  the  vein  to  allow  the  vein  to  flow  without  restriction \nfrom  a  scar  that  might  have  occurred  secondary  to  whatever  the \ncause of the thoracic outlet syndrome was. \n \n\nPichardo – H208121 \n \n-11- \n Dr.  Counce  was  further  questioned about  his  thoughts  on  the  cause  of  the  scarring  and \nultimately the claimant’s thoracic outlet syndrome as follows: \nQ Do you have an opinion as to what caused the scarring? \n \nA Well,  as  to  the  direct  cause,  if – all  I  can  say  it  was  my \nopinion  that  she  had  thoracic  outlet  syndrome.  As  to  the  cause  of \nher thoracic outlet syndrome, I’m not sure that I can tell you what I \nthink is the exact cause of her thoracic outlet syndrome or what led \nto her thoracic outlet syndrome. \n \nQ If she sustained trauma in the fall that she described to you, \nwould  you  have  expected  the  trauma  to  be  serious  enough  that  she \nwould have complained of some new or different symptoms? \n \nA I’m not sure that I understand exactly what you are asking \nthere. \n \nQ Well,  we  are  trying  to  determine  the  extent  to  which  or \nwhether,  if  at  all,  this  fall  has  anything  to  do  with  this  thoracic \noutlet  syndrome.  If  the  scarring  that  you  found – am  I  correct  in \nunderstanding there was some scarring? \n \nA That’s correct. \n \nQ If it was due to trauma that occurred at the time of this fall, \nwould  you  have  expected  that  trauma  to  be  sufficient  to  cause \nsymptoms?  \n \nA Well,  once  again,  you  know,  all  I  can  do  is  refer  to  her \nhistory  and  chronology  that  she  was  pain  free  prior  to  the  accident \nand  then  had  a  lot  of  pain  afterwards  and  that  there  was  indeed \nsome  findings  there  that  she  had  previous  trauma  with  an  old  heal \nfracture  and  some  scarring  around  the  subclavian  vein.  Do  I  think \nthat  if  the  fall  occurred  as  she  described  it,  that  the  findings  that  I \nhad  were  consistent,  yes,  I  mean  I – the  findings  that  I  saw  could \nhave been caused by old trauma. \n \nQ Could it have been caused by the old trauma that caused the \nrib fracture? \n \nA Could have been. \n \n\nPichardo – H208121 \n \n-12- \nQ If  she  had  fractured  this  first  rib  in  this  fall  that  she \ndescribed   to   you   would   you   have   expected   her   to   have   had \nsignificant symptoms in that area that she had not had previously? \n \nA Yes, I would expect that if she had broken her first rib, that \nshe would have had symptoms from that. \n \nQ And where would those symptoms have been? \n \nA Well,  I  would  expect  her  to  have  symptoms  in  and  around \nthe  base  of  her  neck  up  to  the  top  her  of  her  scapula  down  to  her \nshoulder and down to her arm. \n \nQ And  would  those  have  occurred  immediately  or  within  a \nmatter  of  days  after  the  incident  if,  in  fact,  the  rib  fracture  was \ncaused at the time of this fall? \n \nA Well, I’m not sure – I  would  expect  her  to  have  symptoms \nand  would  expect  her  to  have – I  would  expect  her  to  have  initial \nsymptoms,   but   I   would   expect   her   also   to   have   progressive \nsymptoms,  also.  So  if  you  are  asking  when  would  the  onset  of \nsymptoms  be,  I  would  expect  that  some  onset  of  symptoms  would \nbe  immediately  after  whatever  the  trauma  was  that  caused  the  first \nrib  fracture  and  then  for – the  symptoms  probably  would  be \nprogressive from there. \n \nQ Did  I  correctly  understand  you  to  say  that  she  denied  that \nshe had these symptoms prior to the fall? \n \nA If I said that, I didn’t mean to say that. What I meant to say \nwas that  from her history she told me that the onset was two years \nago. Okay? I don’t think – I don’t recall directly asking her if she \nwas  normal  or  had  no  symptoms  prior  to  that  time.  All  I  know  is \nthat she says the onset of symptoms was two years ago. \n \nQ And  you  had  to  accept  that;  you  were  not  undertaking  to \ncheck the veracity of her history? \n \nA That’s correct. \n \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \n\nPichardo – H208121 \n \n-13- \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n The claimant’s current claim before the Commission is limited in scope to her allegations \nof  thoracic  outlet  syndrome.  It  is  clear  that  some  objective  medical evidence of thoracic  outlet \nsyndrome  exists  from  both  the  deposition  and  operative  report  of  Dr.  Counce.  Those  findings \nwould include an old first rib fracture and scarring around the claimant’s nerves in that portion of \nher  chest.  However,  I  do  not  find  the  claimant  can  prove  a  causal  connection  between  the \nobjective medical findings and the injuries she alleges to have occurred on November 4, 2022, at \nwhich time she alleges to have fallen to her knees and then to her backside. It was just short of a \nyear before medical records indicate the claimant began to complain of difficulties that I believe \ncould  be  associated  with  thoracic  outlet  syndrome.  Even  those  complaints  are  hard  to  believe \ngiven the claimant’s poor ability to remember medical problems or conditions in her past. The \nclaimant  is  not  able  to  prove  by  a  preponderance  of  the  evidence  that  she  sustained  a \ncompensable injury in the form of thoracic outlet syndrome on or about November 4, 2022. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n \n \n \n\nPichardo – H208121 \n \n-14- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  26,  2024,  and  contained  in  aa  amended Pre-hearing  Order  filed April  15,  2025,  are \nhereby accepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \na compensable injury in the form of thoracic outlet syndrome. \n 3. The claimant has failed to prove by a preponderance of the evidence her entitlement to \nmedical   treatment   by   Dr.   Christopher   Dougherty,   including   treatment   for   thoracic   outlet \nsyndrome. \n 4. The claimant has failed to prove by a preponderance of the evidence her entitlement to \ntemporary total disability benefits from October 31, 2024, to a date yet to be determined. \n 5. The claimant has failed to prove by a preponderance of the evidence that her attorney \nis entitled to an attorney’s fee in this matter. \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":25062,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H208121 ZULEYKA PICHARDO, Employee CLAIMANT PRAIRIE GROVE ELEMENTARY SCHOOL, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT OPINION FILED SEPTEMBER 8, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington...","outcome":"denied","outcomeKeywords":["granted:1","denied:4"],"injuryKeywords":["thoracic","knee","back","neck","lumbar","shoulder","fracture"],"fetchedAt":"2026-05-19T22:36:07.758Z"},{"id":"full_commission-H308141-2025-09-05","awccNumber":"H308141","decisionDate":"2025-09-05","decisionYear":2025,"opinionType":"full_commission","claimantName":"Rachel Boyce","employerName":"Bald Knob School District","title":"BOYCE VS. BALD KNOB SCHOOL DISTRICT AWCC# H308141 September 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Boyce_Rachel_H308141_20250905.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Boyce_Rachel_H308141_20250905.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H308141 \n \nRACHEL BOYCE, EMPLOYEE  CLAIMANT \n \nBALD KNOB SCHOOL DISTRICT, EMPLOYER RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION,  \nINSURANCE CARRIER/TPA RESPONDENT \n \n \nOPINION FILED SEPTEMBER 5, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE C. MICHAEL WHITE, Attorney \nat Law, North Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed April 29, 2025.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The  Arkansas  Workers’  Compensation  Commission  has \njurisdiction over this claim.  \n \n2. The  stipulations  set  out  above  are  reasonable  and  are  hereby \naccepted. \n \n3. That the claimant satisfied the required burden of proof to prove by \na preponderance of the evidence that she suffered a compensable \ninjury to her right foot by specific incident. \n \n\nBOYCE - H308141  2\n  \n \n \n4. That the claimant is entitled to reasonable and necessary medical \nbenefits in regard to her compensable right foot injury.  \n \n5. That the claimant is entitled to Temporary Total Disability benefits \nfrom the day following her injury up to the day of March 6, 2024.  \n \n6. That the claimant is entitled to attorney fees.  \n \n7. If not already paid, the respondents are ordered to pay for the cost \nof the transcript forthwith. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed.  Specifically, we find from a preponderance \nof the evidence that the findings made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(a)(Repl. 2012).  For prevailing on appeal to the Full \n\nBOYCE - H308141  3\n  \n \n \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \nI must respectfully dissent from the majority opinion finding that the \nclaimant proved by a preponderance of the evidence that she sustained a \ncompensable injury to her right foot on December 18, 2023, which would \nentitle her to reasonable and necessary medical benefits, temporary total \ndisability benefits from the day following her injury up March 6, 2024, and \nattorney fees. In my de novo review of the record, I find that this claim is not \ncompensable. \nThe claimant alleged she sustained a compensable injury on \nDecember 18, 2023, when she tripped over a rug as she walked in the \nschool building.  The respondents have taken the position the claimant was \nnot performing any employment duties at that time.  After a hearing, an \n\nBOYCE - H308141  4\n  \n \n \nadministrative law judge (ALJ) ruled that the claimant had met her burden of \nproving that she sustained a compensable injury.  The respondents appeal. \nOur rules define a compensable injury as \"[a]n accidental injury . . . \narising out of and in the course of employment.\"  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  A compensable injury does not include an \"[i]njury which was \ninflicted upon the employee at a time when employment services were not \nbeing performed.\"  Ark. Code Ann. § 11-9-102(4)(B)(iii).  The Act, however, \nfails to define the phrase \"in the course of employment\" or the term \n\"employment services.\"  Wood v. Wendy's Old Fashioned Hamburgers, \n2010 Ark. App. 307, 374 S.W.3d 785 (2010).  \nOur Supreme Court has held an employee is performing \n\"employment services\" when he or she \"is doing something that is generally \nrequired by his or her employer.\"  Texarkana Sch. Dist. v. Conner, 373 Ark. \n372, 284 S.W.3d 57 (2008).  The Commission uses the same test to \ndetermine whether an employee was performing employment services as it \ndoes when determining whether an employee was acting within the course \nof employment.  Id.  \n Specifically, it has been held the test is whether the injury occurred \n\"within the time and space boundaries of the employment, when the \nemployee [was] carrying out the employer's purpose or advancing the \nemployer's interest directly or indirectly.\"  Id.  The critical inquiry is whether \n\nBOYCE - H308141  5\n  \n \n \nthe interests of the employer were being directly or indirectly advanced by \nthe employee at the time of the injury.  Id.  The issue of whether an \nemployee was performing employment services within the course of \nemployment depends on the particular facts and circumstances of each \ncase.  Id. \nIn the present case, the claimant is a preschool teacher with the Bald \nKnob School District.  Her job duties included preparing students for \nkindergarten, teaching them the basics of the alphabet, numbers, and \ncolors.  \nWhile children who have parents that work for the school district and \narrive by 7:15 a.m., most students arrive at 7:30 a.m.  The claimant’s \ncontracted hours with the school district are 7:30 a.m. to 4:00 p.m.   \nThe claimant sustained an injury at 6:30 a.m. on December 18, \n2023, when she tripped over a rolled-up rug as she walked in the building. \nWhile the claimant testified at her disposition that she may arrive early to \nprepare her classroom, write lesson plans, unstack chairs, or pick up items \nfrom the previous day, she had not done any of those things at the time of \nher fall.  In fact, all she had done prior to her fall was turn on the light.  \nThere were no students in the classroom at that time nor were there any \nother teachers or aides present.  Id.  At her deposition, the claimant testified \nher lesson plans had already been completed for that day. \n\nBOYCE - H308141  6\n  \n \n \nIn short, an employee is performing employment services when \nengaged in the primary activity he or she was hired to perform, or in \nincidental activities that are inherently necessary for the performance of the \nprimary activity, or when an employee is performing employment services \nwhen he or she is engaging in an activity that carries out the employer's \npurpose or advances the employer's interests.  Olsten Kimberly Quality \nCare v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997); Hightower v. Newark \nPub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 (1997). \nAt the time of her injury, the claimant was not performing any \nservices for which she was under contract with the school district, nor was \nshe engaged in any activities that would further her employer’s interest.  \nShe had simply turned on the light.  Merely being present in her classroom \nor having the intention to begin working is insufficient for the claimant to \nmeet her burden of proof.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":8068,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H308141 RACHEL BOYCE, EMPLOYEE CLAIMANT BALD KNOB SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 5, 2025 Upon review before the FULL COMMISSION...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:43.983Z"},{"id":"alj-H008038-2025-09-05","awccNumber":"H008038","decisionDate":"2025-09-05","decisionYear":2025,"opinionType":"alj","claimantName":"Teresa Washington","employerName":"Dept. Of Correction (e. Ark. Reg.)","title":"WASHINGTON VS. DEPT. OF CORRECTION (E. ARK. REG.) AWCC# H008038 September 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Washington_Teresa_H008038_20250905.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Washington_Teresa_H008038_20250905.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H008038 \n \nTEREASA WASHINGTON, EMPLOYEE   CLAIMANT \n \nDEPT. OF CORRECTION (E. ARK. REG.), EMPLOYER   RESPONDENT \n \nSTATE OF ARKANSAS, CARRIER  RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, TPA   RESPONDENT \n \nOPINION FILED SEPTEMBER 5, 2025 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on July 18,  2025,  in Forrest  City,  St. \nFrancis County, Arkansas. \n \nClaimant, Pro Se, Ankeny, Iowa. \n \nRespondents  were  represented  by  Mr. Charles  H.  McLemore, Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on July 18, 2025. A prehearing telephone conference \ntook place on March 12, 2025. A prehearing order was entered on the same day, and subsequently \nentered  into  evidence  as  Commission  Exhibit  1,  without  objection  or  amendment. The  parties \nconfirmed the stipulations and the issues at the hearing. The parties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim.   \n \n2. An  employer/employee relationship  existed  on August  6,  2020,  when \nClaimant sustained bilateral carpal tunnel injury. \n \n3. Respondents have accepted this original claim as compensable and certain \nbenefits have been paid. \n \n\nWASHINGTON H008038 \n \n2 \n \n4. Claimant’s average weekly wage was $540.54, entitling her to temporary \ntotal disability rate of $360.00 weekly, and a permanent partial disability \nrate of $270.00 weekly.\n1\n  \n \n5. The  claim  has  previously  been  litigated,  with  a  final  decision  of  the \nArkansas Court of Appeals dated March 13, 2024, which is res judicata and \nthe law of the case. \n \n \nThe parties have identified the following issues to be adjudicated: \n1. Whether Claimant is entitled to additional reasonable and necessary medical treatment, \nincluding surgeries by unauthorized physician, Dr. David M. Rhodes, and related \nexpenses, including mileage and out of pocket expenses. \n \n2. Whether  Claimant  is  entitled  to  additional  Temporary  Total  Disability  (TTD) \ncommencing January 10, 2023, until a date yet to be determined. \n \n All other issues are reserved. \n \nCONTENTIONS \nClaimant contends: \nBecause my hands have never gotten well after I had surgery, I had to have surgery a second \ntime and I feel that I should have started back being paid after the second surgery.  I am currently \nseeing Dr. Paulson in Ankeny, Iowa at Iowa Ortho and I have surgery scheduled for February 29\nth\n \non my hands which continue to cause troubles.  Dr. Paulson did another nerve exam, and it \nshowed that my carpel tunnel is still there.  I know this doctor was not approved by Workers’ \nComp., but I am still having problems and that is the facts. \nRespondent contends: \nThat this claim was the subject of a hearing on April 15, 2022. An opinion from the ALJ \ndated July 12, 2022, was appealed by the Claimant to the Full Commission, which issued its own \n \n1\n These rates were stipulated to at the full hearing by both parties. \n\nWASHINGTON H008038 \n \n3 \n \ndecision on November 14, 2022. Respondent appealed that decision to the Arkansas Court of \nAppeals, which issued its opinion dated March 13, 2024.  This decision is now final, res judicata, \nand the law of the case.   \nRespondent has provided the Claimant with medical treatment, including conservative \ntreatment, injections and therapy for her wrists. The Claimant chose to see Dr. Sean Morrell.  The \nClaimant underwent surgery for carpal tunnel release on her right arm on October 26, 2020, by Dr. \nMorrell. The Claimant ultimately underwent surgery on her left arm on February 24, 2021, by Dr. \nMorrell. On December 17, 2020, the Claimant was released to return to work full duty without \nrestriction by Dr. Morrell following her right wrist surgery.  \nOn April 23, 2021, the Claimant was released at Maximum Medical Improvement by Dr. \nMorrell with no work restrictions so that she could return to her full duty employment. The \nClaimant in fact did return to work and subsequently filed a new claim for another injury. The \nClaimant was granted her one-time Change of Physician to see Dr. Michael Hood on June 22, \n2021. The Claimant requested the Change of Physician to get an impairment rating. Dr. Hood did \nnot take the Claimant off work, he in fact, stated that the Claimant could return to work full duty. \nAs for treatment, it is obvious the Claimant was prescribed hand exercises to perform at home \nfrom her testimony at the hearing that Dr. Hood gave her clay to roll up in her hand. Dr. Hood \nordered a Functional Capacity Evaluation, which the Claimant underwent July 28, 2021, where \nshe  performed  reliably  in  the medium classification  of  work.  The Claimant  demanded  an \nimpairment rating assigned by Dr. Hood, which was the subject of the previous hearing.   \nWhile the case was on appeal, the Claimant demanded additional treatment. The Claimant \nwas provided by Respondent a return visit to Dr. Hood after she refused to see Dr. Morrell again. \n\nWASHINGTON H008038 \n \n4 \n \nDr. Hood did not recommend surgery for the Claimant. The Claimant has now seen another \nphysician on her own, who is not an authorized physician, underwent surgery by that physician, \nevidently has had or intends to have additional surgery with that physician, and now demands that \nshe  be  provided  additional  period(s)  of  TTD  benefits  related  to  her  surgery(ies)  by  that \nunauthorized physician.  \nRespondents contend that the medical treatment the Claimant demands as an issue for a \nhearing is treatment with an unauthorized physician(s), that the Claimant is not entitled to another \nChange Of Physician, and that the Claimant cannot meet her burden of proving that additional \nmedical treatment by this unauthorized physician is reasonable and necessary for and causally \nrelated to her injury after the authorized physician she chose herself declined to do surgery on the \nClaimant. The Respondent further contends that the Claimant is not entitled to additional disability \nbenefits for period(s) related to her unauthorized medical treatment, nor is the Claimant entitled to \nperiods(s) of disability related to medical treatment which was not reasonable and necessary for \nand causally related to the injury. The Respondent reserves the right to raise additional contentions, \nor to modify those stated herein, pending the completion of discovery. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary  record,  I  hereby  make  the  following  Findings  of  Fact  and  Conclusions  of  Law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The preponderance of the evidence establishes that the treatment Claimant has received \nfrom  Dr.  David  M.  Rhodes  was  unauthorized.  Thus, the  cost  of  that  unauthorized \ntreatment and related expenses, including mileage and out of pocket expenses, is not \n\nWASHINGTON H008038 \n \n5 \n \nthe financial obligation of the Respondents.  \n \n4. The  Claimant  has  failed  to  prove  by  the  preponderance  of  the  evidence  that  she  is \nentitled to additional TTD benefits. \n \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Respondents’ Exhibit 1, correspondence, consisting of 1 page; \nRespondents’  Exhibit  2,  medical  records,  consisting  of  4  pages;  Respondents’  Exhibit  3, \ndocumentary evidence, consisting of 10 pages; Commission Exhibit 1, Pre-Hearing Order Filed \nMarch 12, 2025, consisting of 7 pages total. I have entered into the record by reference the previous \ntranscript of the full hearing that took place on April 15, 2022, the opinion from that hearing issued \non July 12, 2022, the de novo opinion from the Full Commission issued on November 14, 2022, \nand the appellate opinion from the Arkansas Court of Appeals issued on March 13, 2024. The \nClaimant did not enter any exhibits into the record. The Claimant was the only witness testifying \nat the full hearing.  \nThe Claimant was employed as a mental health advisor for the Respondent/Employer in \nFebruary 2017. April 15, 2022, TR 15. Her job was to make rounds on over 100 inmates three \ntimes a week and to type her reports. Claimant testified that she had to increase her job duties when \nCovid hit the State of Arkansas. Claimant began experiencing numbness and tingling in her arms \nin August 2020. Subsequently, the Claimant underwent surgery for her right upper extremity on \nOctober 26, 2020, (April 15, 2022, TR 20) and on her left upper extremity on February 24, 2021. \nApril 15, 2022, TR 24. The surgeries were performed by Dr. Sean Morrell, who eventually placed \nthe Claimant at maximum medical improvement with 0% permanent anatomic impairment rating \non April 23, 2021. April 15, 2022, TR 25. \n\nWASHINGTON H008038 \n \n6 \n \n The Claimant thereafter obtained a change-of-physician order to see Dr. Michael Hood \ndue to ongoing symptoms affecting both upper extremities, which included swelling, numbness, \npain, and weakness. April 15, 2022, TR 26-31. Dr. Hood gave the Claimant exercises to do to help \nwith  her condition. Id. Dr.  Hood  also  ordered  a  Functional  Capacity  Evaluation  which  was \nperformed on July 28, 2021, and received a 10% permanent anatomic impairment rating for each \nof her upper extremities. April 15, 2022, TR 32-34. The Respondents disputed this rating, and a \nfull hearing was held on April 15, 2022, to resolve the matter. Administrative Law Judge Terry \nDon Lucy, in an opinion filed on July 12, 2022, found that the Claimant had failed to prove by the \npreponderance of the evidence that she was entitled to a 10% impairment rating for each of her \nupper extremities. See Lucy Opinion dated July 12, 2022. Judge Lucy based his opinion on how \nDr. Hood assessed the Claimant’s injuries using subjective factors, not objective factors. Id.   \nThe Claimant appealed this decision to the Full Commission which reversed Judge Lucy’s \ndecision and found that the Claimant did prove by the preponderance of the evidence that she was \nentitled to a 10% impairment rating for each of her upper extremities. See Full Commission \nOpinion dated November 14, 2022. The Respondents appealed the Full Commission’s decision to \nthe Arkansas Court of Appeals, which affirmed the Full Commission’s decision on March 13, 2024. \nSee ADOC v. Washington, 2024 Ark. App. 181, 685 S.W.3d 347 (2024). \nDuring the time of the appeal to the Arkansas Court of Appeals, the Claimant demanded \nadditional treatment. The Respondents agreed to provide the Claimant a return visit to Dr. Hood, \nafter she refused to see Dr. Morrell. Dr. Hood did not recommend surgery. The Claimant, without \nRespondent’s authorization, saw another physician, Dr. David M. Rhodes, and testified that she \nunderwent a surgery to her right upper extremity on April 14, 2023. It is important to note that \nbefore this operation, the Claimant signed an acknowledgement of Form AR-N on September 12, \n\nWASHINGTON H008038 \n \n7 \n \n2020. See April 15, 2022, TR 165-167.  Despite having the alleged unauthorized surgery by Dr. \nRhodes, Claimant testified that it did not improve her condition. The Claimant now wants the \nRespondents to pay for the treatment she had received from Dr. Rhodes.  \nAdjudication \nA. Whether  Claimant  is  entitled  to  additional  reasonable  and  necessary  medical \ntreatment, including surgeries by unauthorized physician, Dr. David M. Rhodes, \nand related expenses, including mileage and out of pocket expenses. \n \n Arkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states that an employer shall \nprovide for an injured employee such medical treatment as may be necessary in connection with \nthe injury received by the employee.  Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d \n153 (2003).  But employers are liable only for such treatment and services as are deemed necessary \nfor the treatment of the claimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d \n857 (1987).  The claimant must prove by a preponderance of the evidence that medical treatment \nis reasonable and necessary for the treatment of a compensable injury.  Brown, supra; Geo \nSpecialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000). The standard “preponderance \nof the evidence” means the evidence having greater weight or convincing force.  Barre v. Hoffman, \n2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947).  What constitutes reasonable and necessary medical treatment is a question of fact for \nthe Commission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); \nWackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission.  White v. Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \n\nWASHINGTON H008038 \n \n8 \n \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness but may accept and translate into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \n Claimant has a compensable injury, carpal tunnel syndrome, in both wrists. She underwent \nsurgery by Dr. Morrell on October 16, 2020, for her right wrist, and on February 24, 2021, for her \nleft wrist. Dr. Morrell stated that the Claimant had reached maximum medical improvement for \nher work-related injuries on April 23, 2021. See April 15, 2021, TR 136-150. I credit this statement \nand find by the preponderance of the evidence that Claimant’s healing period ended on April 23, \n2021. \n Despite having the surgery, she continued to have discomfort in her wrists and visited Dr. \nRhodes, without Respondents’ authorization, on January 10, 2023. There she complained about \nnumbness and tingling in both of her wrists that were associated with her compensable work-\nrelated injury. Respondents’ Exhibit 3, pp. 7-9. Dr. Rhodes recommended surgery to redo the “right \nmedian  nerve  decompression  at  the  wrist  through  an  extended  approach.” Id. Despite  this \nrecommendation, the Respondents’ arranged for an appointment with Dr. Hood, since Dr. Rhodes \nwas not an authorized provider.  \n The Claimant visited Dr. Hood on February 21, 2023. Respondents’ Exhibit 2. Dr. Hood’s \nvisit/medical note made clear that he did not believe the Claimant was “a good candidate for \nrevision carpal tunnel release. However, if it is desired, she should see a dedicated hand specialist.” \nId. Dr. Hood further opined that Claimant has achieved her “maximal recovery level.” Id. Dr. Hood \nassessed a final impairment rating for Claimant of 10% for each upper extremity. Id. Despite Dr. \nHood’s position, the Claimant testified that she was still experiencing symptoms with both of her \n\nWASHINGTON H008038 \n \n9 \n \nupper extremities and returned to Dr. Rhodes, without the authorization of the Respondents, for \nadditional treatment.   \n As the Arkansas Court of Appeals has held, a claimant may be entitled to additional \ntreatment, even after the healing period has ended, if said treatment is geared toward management \nof the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); Artex \nHydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  Such services can include \nthose for the purpose of diagnosing the nature and extent of the compensable injury; reducing or \nalleviating symptoms resulting from the compensable injury; maintaining the level of healing \nachieved; or preventing further deterioration of the damage produced by the compensable injury.  \nJordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra.  A claimant \nis not required to furnish objective medical evidence of her continued need for medical treatment.  \nCastleberry v. Elite Lamp Co., 69 Ark. App. 359, 13 S.W.3d 211 (2000). \n Without question, the Claimant was seeking relief from her symptoms, numbness and \ntingling, when she reached out to Dr. Rhodes on January 10, 2023. See Respondents’ Exhibit 3, \npp. 7-9. However, Respondents have argued that any treatment Claimant has undergone with Dr. \nRhodes, which is the subject of this full hearing, was unauthorized and that Respondents are not \nresponsible for the costs associated with that treatment.  In Tempworks Mgmt. Servs. v. Jaynes, \n2023 Ark. App. 147, 662 S.W.3d 280, the Arkansas Court of Appeals wrote: \nBriefly, Ark. Code Ann. § 11-9-514(c)(1) requires an employer or insurance carrier \nto deliver a Commission-approved notice to the employee “which explains the \nemployee’s  rights  and  responsibilities  concerning  change  of  physician.”  \nUnauthorized medical expenses incurred after the employee has received the notice \nare not the employer’s responsibility.  Id. § 11-9-514(c)(3).  But if the employee is \nnot furnished a copy of the notice, the change-of-physician rules don’t apply. \n \nThe change-of-physician rules do not apply absent proof that the claimant received a copy of the  \n\nWASHINGTON H008038 \n \n10 \n \nrules from the Respondents either in person or by certified registered mail.  Ark. Code Ann. § 11-\n9-514(c)(1)-(2) (Repl. 2012).  See also Jaynes, supra; Stephenson v. Tyson Foods, Inc., 70 Ark. \nApp. 265, 19 S.W.3d 36 (2000). \n The preponderance of the evidence in this matter establishes that Claimant did receive a \ncopy of these rules.  She admitted at the April 15, 2022, full hearing that she was given and signed \nthe two-sided Form AR-N, a copy of which is in evidence. See April 15, 2022, TR 39, 165-167. \nThus, I find by the preponderance of the evidence that the treatment received by Claimant from \nDr. Rhodes was in fact unauthorized; as a result, the Respondents are not responsible for the cost \nof those unauthorized medical services.  \nB. Whether Claimant is entitled to additional temporary total disability benefits from \nJanuary 10, 2023, to a date to be determined. \n \nIn  this  proceeding,  Claimant  has  also  claimed  entitlement  to additional temporary  total \ndisability  benefits  from  January  10,  2023, through  a  date  yet  to  be  determined.    Respondents \nstipulated that they did pay some benefits under the claim but maintained that Claimant was not \nentitled to any temporary total disability benefits. \n Claimant’s compensable carpal tunnel syndrome, in both of her upper extremities, is a \nscheduled injury.  See Ark. Code Ann. § 11-9-521(a)(2) (Repl. 2012).  An employee who suffers a \ncompensable scheduled injury is entitled to temporary total disability compensation “during the \nhealing period or until the employee returns to work, whichever occurs first . . . .”  Id. § 11-9-\n521(a).  See Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001).  The \nhealing period ends when the underlying condition causing the disability has become stable and \nnothing further in the way of treatment will improve that condition.  Mad Butcher, Inc. v. Parker, \n4 Ark. App. 124, 628 S.W.2d 582 (1982). Claimant must prove her entitlement to temporary total \ndisability benefits by a preponderance of the evidence.  Id. § 11-9-705(a)(3). \n\nWASHINGTON H008038 \n \n11 \n \n The Claimant testified that she is requesting TTD benefits from January 10, 2023, to April \n14, 2023. TR 21. I have previously found that the Claimant’s healing period ended on April 23, \n2021. The Claimant has not presented any reliable evidence demonstrating that she has entered \nanother healing period for the dates she has requested. For example, the Claimant demands TTD \nbenefits beginning January 10, 2023. This was the date when Claimant had a consultation with Dr. \nRhodes, an unauthorized physician. Nothing that Dr. Rhodes did that day would have caused the \nClaimant to enter another healing period. See Respondents’ Ex. 3, pp. 7-10. Rather the visit \nculminated into a recommendation for a future surgery. Id. The Claimant also testified “April the \n14\nth\n, I believe...I believe that my surgery was April the 14\nth\n, 2023.” TR 22. Here the Claimant used \nthe term “believe” but presented no credible evidence that she had surgery on April 14, 2023, or \non any other date that would cause her to enter another healing period for the dates she is seeking \nTTD benefits. Id. The Claimant has failed to meet her burden. Therefore, the Claimant has not \nproven by the preponderance of the evidence that she is entitled to TTD benefits.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ___________________________________  \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":21472,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H008038 TEREASA WASHINGTON, EMPLOYEE CLAIMANT DEPT. OF CORRECTION (E. ARK. REG.), EMPLOYER RESPONDENT STATE OF ARKANSAS, CARRIER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT OPINION FILED SEPTEMBER 5, 2025 Hearing before Administrative Law Jud...","outcome":"granted","outcomeKeywords":["granted:4","denied:1"],"injuryKeywords":["carpal tunnel","back","wrist"],"fetchedAt":"2026-05-19T22:36:03.610Z"},{"id":"alj-H403297-2025-08-29","awccNumber":"H403297","decisionDate":"2025-08-29","decisionYear":2025,"opinionType":"alj","claimantName":"Tony Flaherty","employerName":"Envoy Air, Inc","title":"FLAHERTY VS. ENVOY AIR, INC. AWCC# H403297 August 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FLAHERTY_TONY_H403297_20250829.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FLAHERTY_TONY_H403297_20250829.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H403297 \n \n \nTONY FLAHERTY,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nENVOY AIR, INC.,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nAIU INS. CO./SEDGWICK CLAIMS MG’T SERVICES, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED AUGUST 29, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Thursday, August 28, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ)  Mike  Pickens, in Texarkana, \nMiller County, Arkansas. \n \nThe claimant, Mr. Tony Flaherty, pro se, failed and/or refused to appear at the hearing. \n \nThe  respondents  were  represented  by  the  Honorable Randy  P.  Murphy, Anderson,  Murphy  & \nHopkins, Little Rock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Thursday, August 28, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and 11 C.A.R. Section 25-110(d) (Code of AR Regulations 2025) (formerly cited \nas Commission Rule 099.13 (2025 Lexis Replacement)). \n         The respondents filed a motion to dismiss this claim without prejudice for lack of prosecution \n(MTD) on April 18, 2025. (Respondents’ Exhibit 1 at 1-2). In accordance with the applicable law \nthe claimant was provided due and legal notice of both the respondents’ MTD as well as the date, \n\nTony Flaherty, AWCC No. H403297 \n2 \n \ntime, and place of the subject hearing. Thereafter, the claimant failed and/or refused to respond to \nthe respondents’ motion in any way, or to appear at the subject hearing. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute his claim or to request a \nhearing within the last six (6) months. \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having been  mailed due  and  legal  notice  of both the respondents’ MTD without \nprejudice filed with the Commission on April 18, 2025, as well as due and legal notice of \nthe date, time,  and  place of  the  subject  hearing,  the  claimant failed  and/or  refused  to \nrespond to the MTD in any way and failed and/or refused to appear at the subject hearing. \n \n3. The claimant has not requested a hearing within the last six (6) months and has taken no \nsteps to raise any issues related to or to prosecute this claim.  \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwithout prejudice filed April 18, 2025, should be and hereby is GRANTED; and this claim \nis dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. \n\nTony Flaherty, AWCC No. H403297 \n3 \n \nCode  Ann. Section  11-9-702(a)  and  (b) and 11  C.A.R.  25-110(d)  (formerly  cited  as \nCommission Rule 099.13). \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n                                                                                \n\nTony Flaherty, AWCC No. H403297 \n4","textLength":5110,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H403297 TONY FLAHERTY, EMPLOYEE CLAIMANT ENVOY AIR, INC., EMPLOYER RESPONDENT AIU INS. CO./SEDGWICK CLAIMS MG’T SERVICES, INC. CARRIER/TPA RESPONDENT OPINION FILED AUGUST 29, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE Hearing conducte...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:38:08.613Z"},{"id":"alj-H406771-2025-08-29","awccNumber":"H406771","decisionDate":"2025-08-29","decisionYear":2025,"opinionType":"alj","claimantName":"Calvin Walton","employerName":"City Of Stuttgart","title":"WALTON VS. CITY OF STUTTGART AWCC# H406771 & H500714 August 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WALTON_CALVIN_H406771_H500714_20250829.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALTON_CALVIN_H406771_H500714_20250829.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM Nos H406771 & H500714 \n \nCALVIN WALTON, EMPLOYEE        CLAIMANT \n \nCITY OF STUTTGART, SELF- INSURED EMPLOYER        RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, TPA                     RESPONDENT \n \n \nOPINION & ORDER FILED 29 AUGUST 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 5 June 2025 in Pine Bluff, Arkansas. \n \nThe claimant was represented by Mr. Steven R. McNeely. \n \nThe respondents were represented by Ms. Mary K. Edwards. \n \nSTATEMENT OF THE CASE \n \n A Prehearing Order was filed on 31 March 2025 and admitted to the hearing record \nwithout objection as Commission’s Exhibit No 1. Consistent with that Order, the parties \nagreed to the following: \nSTIPULATIONS \n \n1. The Commission has jurisdiction over this claim. \n \n2. The self-insured employer/employee/TPA relationship existed at all relevant \ntimes relevant to both claims. \n \n3. On 26 January 2024, the claimant fell and claimed injuries to his right \nshoulder and neck. The right shoulder injury was accepted as compensable. \nThe neck injury was denied. (Claim No H406771) \n \n4. On 12 December 2024, the claimant injured his lower back. Some benefits \nhave been provided on that claim. (H500714) \n \nISSUES \n \n1. Whether the claimant suffered a compensable neck injury on 26 January \n2024. (Claim No H406771) \n \n\nC. WALTON- H406771 & H500714 \n2 \n \n2. The correct average weekly wage that applies to benefits associated with the \ncompensable injury (or alleged compensable injuries) on Claim No H406771. \n \n3. Whether the claimant is entitled to additional temporary total disability \n(TTD) benefits from 13 January 2025 to 9 May 2025 on Claim No H406771.\n1\n \n \n4. Whether the claimant was underpaid on past TTD benefits on Claim No \nH406771. \n \n5.  Whether the claimant is entitled to additional medical treatment on Claim No \nH500714. \n \n6.   Whether the claimant is entitled to an independent medical evaluation (IME) \nrelated to his accepted compensable right shoulder injury on Claim No \nH406771.\n2\n \n \n7.   Whether the claimant is entitled to attorney’s fees associated with the \nindemnity benefits sought. \n \nAll other issues have been reserved. \n \nCONTENTIONS \n \nThe Prehearing Order incorporated the following contentions from the parties’ \nrespective prehearing questionnaire responses: \nThe claimant contends:  \n(H406771) The claimant contends that he suffered compensable injuries on \n[26 January 2024] to both his right shoulder and neck. Respondents have \naccepted the shoulder but are denying the neck. Claimant contends that he \nmade $18.25 an hour and worked 40 to 50 hours a week, at 50 hours his gross \nwages $ 1,003.75 with TTD rates $670/$502 TTD/PPD. Claimant contends he \nis entitled to the referral for his neck from Dr. Hussey. Claimant contends he \nis entitled to TTD from January 13, 2025, to a date to be determined when he \ntook off because of a flare up of his work related injuries and was terminated. \nClaimant contends the above benefits have been denied and Claimant’s \nattorney is entitled to a fee under Ark. Code Ann. 11-9-715. Claimant \nreserves all issues not raised herein including and any permanent \nimpairment rating and vocation rehab. \n \n1\n The Prehearing Order indicated that benefits were being sought to a date yet to be \ndetermined. The claimant was released from care without restrictions on 9 May 2025, and \nthe parties agreed at the beginning of the hearing that the release would end any potential \nentitlement to TTD benefits after that date. \n2\n This issue was not indicated in the Prehearing Order. It was included in this litigation by \nagreement of the parties at the beginning of the hearing. \n\nC. WALTON- H406771 & H500714 \n3 \n \n  \n(H500714) The claimant contends that he suffered a compensable injury on \n12/12/24 to his lower back, when the truck he was operating experienced a \nbrake malfunction, causing it to roll back and strike him. He is entitled to a \nreturn visit to Dr. Seth Kleinbeck. \n \n The respondents contend\n3\n: \n \n(H406771) The respondents contend that claimant cannot prove by a \npreponderance of the evidence that he sustained a compensable neck injury. \nClaimant cannot prove he has objective findings of a neck injury. On or about \nJanuary 26, 2024, claimant injured his right shoulder while working for the \nCity of Stuttgart. Respondents have paid and are continuing to pay for all \nrelated medical treatment to claimant’s right shoulder. Respondents contend \nthat claimant cannot prove he is entitled to additional TTD for his right \nshoulder injury.  \n \n(H500714) The respondents contend that the claimant cannot prove he is \nentitled to additional medical treatment for his lower back injury dated \nDecember 12, 2024. The respondents sent him to see Dr. Seth Kleinbeck for \nhis lower back complaints. Dr. Kleinbeck referred the claimant for an MRI. \nThe MRI showed degenerative changes that were preexisting. Respondents \nare denying further medical treatment of the claimant’s lower back. \n \nRespondents reserve the right to file an Amended Response to the Prehearing \nQuestionnaire or other appropriate pleading and to allege any further \naffirmative defense that might be available upon further discovery.  \n \nFINDING OF FACTS AND CONCLUSIONS OF LAW \n \n Having reviewed the record as a whole, including the evidence summarized \nbelow, and having heard testimony from the witnesses, observing their demeanor, I make \nthe following findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over these claims. \n \n2. The stipulations as set forth above are reasonable and are hereby accepted. \n \n3. The claimant failed to prove by a preponderance of the evidence that he \nsuffered a compensable neck injury on 26 January 2024 (Claim No H406771). \n \n4. The preponderance of the evidence establishes that the claimant earned an \naverage weekly wage of $806.12 at the time of his accepted right shoulder \n \n3\n As indicated in their prehearing responses and the Prehearing Order. An amended \nprehearing response was admitted to the record without objection as Resp. Ex. No 3. \n\nC. WALTON- H406771 & H500714 \n4 \n \ninjury on Claim No H406771, which entitled him to a weekly TTD benefit of \n$538. \n \n5. The claimant failed to prove by a preponderance of the evidence that he was \nentitled to additional TTD benefits from 13 January 2025 to 9 May 2025, or \nany period therein, on Claim No H406771. \n \n6. The preponderance of the evidence does not establish that the respondents \nunderpaid the claimant on TTD benefits on Claim No H406771. \n \n7. The claimant failed to prove by a preponderance of the evidence that he is \nentitled to additional medical treatment for his lower back injury on Claim No \nH500714. \n \n8. The claimant failed to prove by a preponderance of the evidence that he is \nentitled to an IME related to his stipulated compensable right shoulder \ninjury on Claim No H406771. \n \n9. The claimant has failed to prove by a preponderance of the evidence that he \nis entitled to an attorney’s fee. \n \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \n \n\nC. WALTON- H406771 & H500714 \n5 \n \nSUMMARY OF THE EVIDENCE \nThe claimant testified on his own behalf. The respondents called Mr. Roger Robinson \n(the claimant’s supervisor) and Ms. Carol Ables (the respondent-employer’s personnel \ndirector). The record consists of the hearing transcript and the following exhibits: \nCommission’s Exhibit No 1 (the 31 March 2025 Prehearing Order); Claimant’s Exhibit No 1 \n(three index pages and 89 pages of medical records related to Claim No H406771); \nClaimant’s Exhibit No 2 (one index page and eight pages of non-medical records related to \nClaim No H406771); Claimant’s Exhibit No 3 (one index page and nine pages of medical \nrecords related to Claim No H500714); Claimant’s Exhibit No 4 (one index page and 32 \npages of non-medical records related to Claim No 406771); Respondents’ Exhibit No 1 (one \nindex page and 19 pages of medical records); Respondents’ Exhibit No 2 (two index pages \nand 58 pages of non-medical records); and Respondents' Exhibit No 3 (their amended \nprehearing questionnaire responses, dated 21 May 2025). \nAdditionally, the parties filed post-hearing briefs. In accordance with Sapp v. Tyson \nFoods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, those filings have been blue-\nbacked to the record and are being served on the parties in conjunction with this Opinion. \nHearing Testimony \n The claimant recently turned 60 years old. He has a high school diploma and a \ncommercial driver’s license. He has driven a truck for a living since he was 23 years old. \nThe claimant began working for the Respondent-employer City of Stuttgart (“the City”) in \nSeptember of 2023. He worked for the Sanitation Department and primarily drove “roll-\nback” trucks that carried large garbage containers that could be left at a site and then \npulled up onto the truck’s trailer for hauling away. He would pick up the garbage \ncontainers and drive them to the City’s landfill. \n\nC. WALTON- H406771 & H500714 \n6 \n \n On 26 January 2024 the claimant was at the landfill and climbing down from a \ntruck cab when a step broke, causing him to fall against the truck’s floorboards. He \nreported the injury to his supervisor Mr. Roger Robinson (whom he referred to as “RD”) and \ncompleted some paperwork that day that indicated a right shoulder injury.\n4\n The claimant \ndenied any prior injuries or problems with his right shoulder or neck.  \n The claimant testified that he received some treatment with Dr. Seth Kleinbeck. The \nclaimant was terminated in May of 2024 for missing work. He described some confusion \nabout his off-work status at that time: \nAnd so they called me when Roger got me to come back to work and I—what \nyou call them—I came back and they, Ms. Carol [Abels], asked me for a \nrehire. And I told her, “Why would you want to rehire me when I been out on \ninjury?” I mean—I mean, I been, you know—but I love my job. I mean, it \nwasn’t that I was, you know, pulling a prank or anything. I got—like I said, I \ngot a lot of responsibility to be pulling child games so. But anyway, she insist \nthat—I said, “Well, you know I still was off on workers’ comp.” I said, “You \nknow, I mean, I’m still, you know going for an MRI right now.” And she was \nlike, “Well, still we want to—you stayed gone too long. Stayed off too long.” \nBut I got injured on this job. \n \n[TR at 29-30.] \n He was rehired and continued seeking treatment. On 17 October 2024, Dr. Michael \nHussey operated on the claimant’s right shoulder. The claimant testified that he had earlier \nreported pain in his neck and left arm. \nQ:  Now, comparatively, between your right shoulder injury, and we’re still in \nthe January-to-the-surgery time frame. \nA:  Yes. \nQ:  From the right shoulder and the neck, tell the Judge which one of them \nwas the most severe, the neck or the right shoulder? \nA:  Well, I would get each of them, I would get a 10 out 10. ... \n \n[TR at 32.] \n \n4\n One form indicates a right shoulder injury. Another form incorrectly indicates a left \nshoulder injury. The parties agree that the claim relates to an accepted right shoulder \ninjury. \n\nC. WALTON- H406771 & H500714 \n7 \n \n The claimant stated that he was off work for a short time following shoulder \nsurgery: \nQ:  Okay. So, you were off work for a little period of time after the surgery? \nA:  Yes, sir. \nQ:  And you were work comp? They paid you that? \nA:  Yeah, I got one check off of them. I told them I didn’t want to—I didn’t \nwant—I didn't want to fool with no workers’ comp. \nQ:  Okay. Then, after that, you had a second injury, correct? \nA:  Yes, sir. \nQ:  And does December the 12\nth\n of 2024 sound about right? \nA:  I think. Yes, sir. \n \n[TR at 34.] \n The claimant testified that on 12 December 2024, a leaking air brake system caused \na truck to roll while he was outside of it. He stated that the truck’s door hit his left side and \nback. He reported to the respondents that the incident caused an injury to his low back. Dr. \nKleinbeck saw him and ordered an MRI scan. According to the claimant, he underwent an \ninjection for his back (that was covered by private health insurance) a few days before the \nhearing. The claimant testified that twenty or twenty-five years ago, he sustained an injury \nto his low back while working for the Highway Department.  \n The claimant recalled a significant snowstorm in Central Arkansas around 9 \nJanuary 2025 and testified about his absence from work in the weeks that followed. That \nabsence resulted in his second and final termination. \nClaimant:  Well, January the 9\nth\n, I worked it, and it started snowing. Before \nwe get off work, it started snowing. It was a real bad day January the 9\nth\n. \nAnd January the 10\nth\n [I] called in, and RD said we ain’t got to come in, ‘cause \nit’s too bad for us to come; so—and I told them on the 10\nth\n, I said, “Hey, Doc,” \nI said, “I can’t—I can’t come in.” I said, “My shoulder is—is—is—I mean, it’s \nwearing me out, neck and all.” And he was like, “Okay.” So, I was off all—I \ncalled in every day and clean up ‘til the 20\nth\n—he told me on the 22\nnd\n, and I \nknow it was the 22\nnd \n[...] He told me that—that “Hold up, Calvin.” He told—\nnow this is during where he told me, he said, “Hold up. Let me get back with \nyou, because they saying that you have abandoned your job.” I said, “Why \nwould I be—abandoned my job when I’m on the restriction and it’s brutally \ncold.” We had temperatures below zero. And I—you know, and I mean, I was \nin chronic pain. You know, I mean, I hadn’t even healed up good. I just had \n\nC. WALTON- H406771 & H500714 \n8 \n \nhad surgery the end of October, and—but all the same time, you know, I—I \njust couldn’t believe it, but just still they discharged me. Hey. \n \nJudge:  And was that pain from the shoulder? \n \nClaimant:  Shoulder, yes, sir. And back. \n \n[TR at 38-39.] \n The claimant went on to say again that he called into work every day until 22 \nJanuary 2025, when he claimed that he was notified of his termination for not coming into \nwork the day before. Around that time the claimant stated that his right shoulder was in \n“some real pain.” [TR at 43.] He was treating with topical pain relievers and ibuprofen. He \nstated that he also experienced back and neck pain and numbness from his lower back \ndown his left leg. \n The claimant denied working between his termination and his 9 May 2025 release \nfrom care for his right shoulder by Dr. Hussey. He believed that he was unable to find work \nbecause of the restrictions relating to his shoulder during that time. At the time of his \nrelease, Dr. Hussey returned him to work without restrictions and with a zero percent (0%) \nimpairment rating. The claimant testified that he still has trouble performing his truck \ndriving work because of his right shoulder and that he compensates by relying on his left \narm. “[B]ut I thank God that I’m sitting here able to tell it and not, you know, and you \nknow, having that numbness running down my leg, pain in my neck.” [TR at 52.] \n On cross-examination, the claimant acknowledged receipt of the City’s employee \nhandbook when he was hired in September of 2023. He also acknowledged that the \nrespondents had paid for all of the treatment he received related to his accepted right \nshoulder injury. He acknowledged, too, that Dr. Kleinbeck’s records do not reflect reports of \na neck injury associated with his 26 January 2024 incident. Reviewing his workplace \n\nC. WALTON- H406771 & H500714 \n9 \n \naccident report and the Form AR-N that he signed, he confirmed that neither indicated a \nneck injury. \n The claimant affirmed that he returned to regular duty after the accident and that \nafter his termination and rehire, he went back to working his regular job duties. After his \neventual right shoulder surgery and return to work with light-duty restrictions, the \nrespondents provided him with a ride-along employee to perform any labor that was beyond \nhis restrictions.  \n Regarding the 12 December 2024 incident, the claimant acknowledged that he was \nseen by a physician and returned to work without any restrictions the following day.  \n Turning to his termination, the claimant agreed that he did not provide any note for \nhis absence between 9 January 2025 and his termination; but he said again that he called \nhis supervisor Mr. Robinson every day during that time.  \n On redirect examination, the claimant stated that Mr. Robinson explained that he \n“begged them not to let you go, Calvin, but it’s nothing—it’s out of my hands.” [TR at 72.] \nThe claimant also denied that Mr. Robinson ever asked him for a doctor’s note related to his \nabsenteeism. \nMr. Roger Robinson \n Mr. Robinson testified that he had worked with the City for 48 years and that he \nhad served as the Sanitation Department’s supervisor for 14 years. He recalled the \nclaimant returning to work without restrictions after the 26 January 2024 and then \nreturning to work with restrictions after right shoulder surgery in October of 2024. Mr. \nRobinson denied that the claimant made any reports of a neck injury. He stated that the \nclaimant was not taken off work for a back injury or given any work restrictions for a back \ninjury after the 12 December 2024 incident. He further stated that the claimant was alone \n\nC. WALTON- H406771 & H500714 \n10 \n \non that day because he denied needing any more help about a month or so after his post-\nsurgery return. “And I left it like that,” Mr. Robinson said. [TR at 78-79.] \n Discussing the claimant’s termination on 22 January 2025, Mr. Robinson testified \nthat he made the decision to terminate the claimant’s employment “[f]or not calling in, no \ndoctor excuse.” [TR at 80.] He denied that the claimant called in between 9 January 2025 \nand his termination. But Mr. Robinson did call the claimant during that time. \nWell, I called him January the 9\nth\n, because the workman comp lady had \ncalled me. Well, she texted me and told me that he had missed a doctor’s \nappointment and they was trying to get ahold of him, and then, I tried to call \nhim and I didn’t get no answer. Then, I heard from him, I called him again \non—I think, it was around the 11\nth\n of January and I talked with him. He say \nhe would be in that—I think, that was a Wednesday, that Thursday he said \nhe would be in. I said, “Okay,” but he never showed up and I didn’t—I didn’t \ncall him back no more. And then, later on, I called him during the—I think \naround the 21\nst\n [...] ‘cause I hadn’t heard from him no more and I gonna let \nhim know that the was no more—employee here no more. I had his \npaperwork that I had to terminate him, you know. \n \n[TR at 81.] He went on to confirm again that the claimant did not call him during the time \nhe was not reporting for work. Mr. Robinson testified that had the claimant not been \nterminated for unexcused absenteeism, his employment with the City would have \ncontinued. \n Mr. Robinson also testified about the claimant’s first termination from City \nemployment. He recalled making that decision to terminate for the claimant’s failure to \nreport to work or call in. He described the decision to rehire the claimant as a “second \nchance.” [TR at 84.] \n On cross-examination, Mr. Robinson stated that the City’s policy provided for an \nemployee’s termination after three days of not calling or not showing. He described his \ndecision to terminate the claimant’s employment for the second and final time as going “by \nthe book.” [TR at 92.] He also stated again that by 12 December 2024, the claimant had \n\nC. WALTON- H406771 & H500714 \n11 \n \ndeclined the ride-along help that had been assigned to him. “Larry was only with him on \nthe—after surgery with his shoulder,” he said. Id. \nMs. Carol Ables \n Ms. Ables testified that she had worked for the City for about 47 years, and she had \nserved as the City’s personnel director since 2003. She explained that she processed the \npaperwork associated with the claimant’s termination but that the decision to terminate \nwas Mr. Robinson’s to make. She verified that the claimant had not provided a doctor’s note \nfor any absence on or after 9 January 2025. She also confirmed that the claimant’s first \ntermination in the summer of 2024 was for unexcused absenteeism. \n Ms. Ables also stated that she completed the wage forms associated with the \nclaimant’s TTD benefit calculations. She testified that he started with the City in \nSeptember of 2023 at $16 per hour. In January of 2024, he received a raise that brought his \npay rate to $17.50 per hour. Then, in January of 2025, his rate increased to $18.25 per \nhour.  \n She verified that the claimant immediately returned to full-duty work after \nreporting his accident in January of 2024; and she denied any awareness of a report of a \nneck injury associated with that accident. Ms. Ables confirmed that the claimant had light-\nduty restrictions after his shoulder surgery and that light-duty accommodations would have \ncontinued to be available until those restrictions were released by a physician, but not for \nhis termination. \nMedical Evidence \n The respondents accepted the claimant’s right shoulder injury as compensable and \nbegan providing for treatment accordingly. Dr. Kleinbeck’s first visit record notes a \ncomplaint of right shoulder pain and an assessment of the same. [Cl. Ex. No 1 at 1.] A \nfollow-up visit on 6 March 2024 indicated the same complaint and assessment. [Id. at 6.] \n\nC. WALTON- H406771 & H500714 \n12 \n \nOn 19 March 2024, the claimant completed a hand-written patient history form for a \nphysical therapy program. He indicated “Right Shoulder” as the present problem. [Id. at \n11.] \n On 8 May 2024, the claimant saw Dr. Kleinbeck again for ongoing right shoulder \npain. No improvement with physical therapy was noted, and an MRI was ordered. [Id. at \n13.] An MRI report from 19 August 2024 revealed a rotator cuff tear. [Id. at 19] \n The claimant was referred to Dr. Hussey on 4 September 2024, and they discussed \nthe treatment options for his right shoulder. Surgery was recommended, and the claimant \nchose to proceed with that recommendation. The notes from that visit include: \nASSESSMENT/PLAN \n. . .  \n3.  We discussed he also appears to have some cervical issues going on which \ncould be contributing to his right upper extremity pain and he states this did \nnot occur until after his work injury. I have recommended he discuss this \nwith his work comp case manager to see about a possible spine referral for \nthis. \n \n[Id. at 23.] This is the first reference to complaints of a neck injury in the medical records. \n The rotator cuff repair was performed without issue on 17 October 2024, and the \nclaimant was to follow up in clinic on 28 October 2024. The claimant was returned to work \nwith restrictions after that follow-up visit. “No pushing, pulling, lifting right upper \nextremity. Must wear brace at all times.” [Id. at 32.] \n The claimant was seen for another follow-up visit on 25 November 2024. The notes \nfrom that visit include: \nASSESSMENT/PLAN \n59-year-old male with occupation related injury, 6 weeks post right shoulder \narthroscopic rotator cuff repair, decompression, and debridement. DOS \n10/17/2024. \nAlso with cervical and upper extremity pain and dysfunction possibly \nsecondary to cervical spine derangement/radiculopathy. \n \n\nC. WALTON- H406771 & H500714 \n13 \n \nHe was referred to physical therapy for his right shoulder, and work restrictions were \ncontinued as “no lifting, pushing, pulling greater than 3lbs with the right upper extremity. \nNo overhead motion.” [Id. at 35-36.] \n A physical therapy note from 2 January 2025 states, “Patient feeling good with pain \nonly 3/10.” [Id. at 41.] Another physical therapy note from 8 January 2025 states, “pain is \naround 3-4/10, not as severe, more like an ache.” [Id. at 47.] \n The claimant saw Dr. Hussey again on 31 January 2025. The visit notes include: \nPHYSICAL EXAM \nExam right shoulder demonstrates improved active motion all planes without \ncrepitation. \nPositive Spurling maneuver. \n2 view x-ray cervical spine demonstrates relatively normal joint alignment. \nArthritic changes present from the C5-7 levels. \n \nASSESSMENT/PLAN \nBegin phase 3 rotator cuff protocol with therapy. He still complains of \nsignificant cervical and trapezial upper shoulder pain that I believe is \nseparate from his shoulder. He could have cervical derangement, he has some \nearly arthritic changes on x-ray today. I would recommend that he be \nevaluated by cervical spine specialist to see if possibly his cervical complaint \nis related to his occupation related injury. I cannot comment on spine injury \nrelatedness, since I am not a spine specialist. Restrictions are no pushing \npulling lifting greater than 5 pounds no repetitive overhead shoulder motion. \nFollow-up 2 months at which time he may be at MMI for the shoulder. \n \n[Id. at 53.] His restrictions were changed to, “No pushing, pulling, lifting greater than 5 \npounds with right upper extremity. No repetitive overhead motions.” [Id. at 54.] \n At a follow-up appointment on 28 March 2025, Dr. Hussey noted improvement with \nmotion and strength in the claimant’s right shoulder. An additional month of physical \ntherapy was ordered, and the claimant was scheduled to return in six weeks for a final visit \nwith Dr. Hussey’s APRN Kala Hart. A release at MMI was anticipated at that time. [Id. at \n82.]  \n The last physical therapy note provided by the claimant is for an appointment on 1 \nApril 2025. That note indicates that, “Strength and ROM of his right shoulder are \n\nC. WALTON- H406771 & H500714 \n14 \n \nimproving steadily, and pain is reduce[d] overall.” The assessment concluded with, \n“Therapy will now transition to more strength related activities within Mr. Calvin’s \ntolerance.” [Id. at 79.] \nThe claimant returned to Dr. Hussey’s clinic as scheduled on 9 May 2025 and was \nseen by Ms. Hart. He stated that he was doing “much better from last visit.” [Id. at 86.] The \nnotes from that visit also provide: \nPHYSICAL EXAM \nExam right shoulder demonstrates full range of motion in all planes without \ncrepitation. 5/5 rotator cuff strength testing. \n \nASSESSMENT/PLAN \n... \n1. I am pleased with his improvement since last visit and outcome from the \nsurgery. I am going to release him back to work full duty without restrictions \nto the right upper extremity and he is now at MMI. No further follow-up. \n \nDiscussion Notes: \nDr. Hussey was present in clinic and consulted if need in regard to the \npatient’s assessment and appropriate course of medical treatment. \n \n[Id. at 87.] Dr. Hussey then authored a letter on 12 May 2025 that stated: \n1.  Patient may return back to work without restrictions to the right upper \nextremity. \n2.  Patient is now at MMI as of date 5/9/2025 with a 0% impairment rating to \nthe right upper extremity, which corresponds to a 0% whole person \nimpairment rating according to the 4\nth\n Edition AMA Guides to the Evaluation \nof Permanent Impairment. \n3.  No further follow-up necessary. \nAll statements given above are within a reasonable degree of medical \ncertainty. \n \n[Id. at 89.] \n With regard to his alleged back injury (Claim No H500714), the claimant was seen \nby Dr. Kleinbeck on 13 December 2024. The notes from that visit include: \nREASON FOR VISIT \nBack Pain (Left Side) \nPatient is here today for lower back pain on the left side. Patient was picking \nsomething up out of his truck when the truck started rolling away. \n \n\nC. WALTON- H406771 & H500714 \n15 \n \nBack Pain \nThis is a new problem. The current episode started yesterday. The problem \noccurs constantly. The problem has been gradually worsening since onset. \nThe pain is present in the lumbar spine. The quality of the pain is described \nas aching. The pain is at severity 4/10. The pain is moderate. The pain is the \nsame all the time. The symptoms are aggravated by bending and position. \nStiffness is present all day. Pertinent negatives include no abdominal pain, \nchest pain, fever or headaches. He has tried nothing for the symptoms. \n. . .  \n \nASSESSMENT/PLAN \nCalvin was seen today for back pain. \n \n[Cl. Ex. No 3 at 1-3.] \n The claimant was diagnosed with a lumbar strain and received injections of Toradol \nand Depo-Medrol. Ibuprofen and methocarbamol were prescribed for his complaints of pain. \nHe was to return in three months. According to the visit notes, no other orders were placed \nthat day. Id. A return-to-work note is dated 12 December 2024. The claimant was returned \nto work that day without restrictions. [Resp. Ex. No 1 at 1.] \n The claimant returned to the clinic on 24 February 2025. The notes from that visit \ninclude: \nASSESSMENT/PLAN \nCalvin was seen today for back pain. \nDiagnosis and all other orders for this visit: \nLumbar radiculopathy \n \n Comments: left leg, now with weakness, MRI L spine \n. . .  \nleft sided arm pain \n \n[Resp. Ex. No 1 at 7.]  \n Lumbar X-rays were also conducted that day. That study included the following: \nFINDINGS: There is mild degenerative narrowing of the L2-3 disc space. \nThere is minimal degenerative narrowing of the L4-5 disc space. There is \nmild chronic facet joint arthropathy at L4-5 and L5-S1 with grade 1 \nanterolisthesis of L4 on L5. No compression deformity is evident. No lytic or \nblastic defect is seen. The pedicles are normal in appearance and normally \nspaced. \n \n\nC. WALTON- H406771 & H500714 \n16 \n \n IMPRESSION: \n 1.  There is chronic degenerative narrowing of the L2-3 and L4-5 disc spaces. \n2.  There is a grade 1 anterolisthesis of L4 on L5 with associated disc space \nnarrowing and facet joint arthropathy. \n \n[Resp. Ex. No 1 at 5-6.] \n The lumbar MRI scan ordered by Dr. Kleinbeck was performed on 6 March 2025. \nThe report from that scan included: \nIMPRESSION: \n1.  Multilevel degenerative disc disease and facet arthrosis with canal and \nforaminal compromise as detailed above at each level. \n2.  Canal narrowing is most significant across the L4-5 level with moderate to \nsevere canal and recess narrowing from listhesia/moderate to severe facet \narthrosis. \n3.  There is moderate to severe left canal and recess narrowing at the L5-S1 \nlevel from bulging and extrusion as above. There is also associated foraminal \nnarrowing as above. \n \n[Cl. Ex. No 3 at 8.] \nDocumentary Evidence \n Both parties submitted a number of wage-related records. The respondents provided \nseveral records related to the claimant’s employment and claims, including the claimant’s \nsigned receipt of the City’s employee handbook. [Resp. Ex. No 2 at 1.] \n A Report of Accident form completed by the claimant indicates a right shoulder \ninjury occurring when a “step on truck gave away and I lost my step. I was getting out of \nmy truck.” [Id. at 20.] That form does not indicate a neck injury. A Form AR-N associated \nwith that incident reflects only a shoulder injury; it does not indicate a neck injury. [Id. at \n21.]  \n An Employment Termination Notice form is dated 3 June 2024 and signed by Roger \nRobinson. It states: \nMr. Walton called in sick on Tuesday, May 28, the day after the Memorial \nDay holiday. Mr. Robinson, SWMS Supervisor, told him that he would have \nto bring a doctor’s excuse to be paid for the holiday. He has not called in or \nreported to work since 5/28/24 so he has apparently quit. \n\nC. WALTON- H406771 & H500714 \n17 \n \n \n[Id. at 33.] \n Another Report of Accident form is dated 13 December 2024 (after the claimant’s re-\nhiring and return to work). It indicates an injury to the claimant’s “lower left side of back \ninto butt” when “ready to unload truck when parking brake release[d].” [Id. at 38.] A Form \nAR-N completed on the same day indicated the same incident and alleged the same injury. \n The claimant’s attendance records show that he was absent from work leading up to \nhis second and final termination. “Reason for Absence Explained: 01/13/25 & 01/14/25, no \npay for 16 hrs. off, failed to call in or report to work!!!” [Cl. Ex. No 4 at 30.] “Reason for \nabsence explained: 01/15/25-01/21/25, no pay for 40 hrs. off (waiting to see if he brings in a \ndoctor’s excuse)!!!” [Id. at 31.] \n On 21 January 2025, a claims examiner for the respondents wrote a letter to the \nclaimant about several recently missed treatment appointments: \nAs you are aware, I am the adjuster assigned to your above claim for your \nshoulder. I have been made aware that you have not attended several of your \nscheduled physical therapy appointments and did not keep your follow-up \nappointment with Dr. Hussey. Your doctor prescribed therapy to aid in the \nhealing of the above work injury therefore you must attend. Failure to attend \nyour recommended appointments, physical therapy and doctor, places you in \nnon-compliant status and subject to discontinuation of your workers’ \ncompensation benefits. \n \nI urge you to keep your therapy appointment scheduled for 1/22/2025 and \nyour doctor’s appointment that has been rescheduled for 1/31/2025. \n \n[Resp. Ex. No 2 at 54.] \nAnother Employment Termination Notice is dated 22 January 2025. It is also signed \nby Roger Robinson and states, “Mr. Walton is being terminated due to failing to report to \nwork since 01/09/25 and failing to provide a doctor’s excuse for the days he has been off \nwork. [Cl. Ex. No 4 32; Resp. Ex. No 2 at 35.] \n \n\nC. WALTON- H406771 & H500714 \n18 \n \nDISCUSSION \nI. THE CLAIMANT HAS FAILED TO PROVE BY A PREPONDERANCE OF \n THE EVIDENCE THAT HE SUFFERED A COMPENSABLE NECK \n INJURY ON CLAIM No H406771. \n \n The respondents accepted this claim for initial benefits associated with a right \nshoulder injury. They began paying for reasonable and necessary medical benefits and, \nafter a covered surgical procedure, provided indemnity benefits. They have denied liability \nfor an alleged neck injury on this claim. \n Under Arkansas’ Workers’ Compensation laws, a worker has the burden of proving \nby a preponderance of the evidence that he sustained a compensable injury as the result of \na workplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). A compensable injury must be \nestablished by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-\n102(4)(D). Objective medical findings are those findings that cannot come under the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i).  \n The claimant alleges that his injury occurred by specific incident.\n5\n The claimant \nmust establish four (4) factors by a preponderance of the evidence to prove a specific \nincident injury: (1) an injury occurred that arose out of and in the course of his employment; \n(2) the injury caused internal or external harm to the body that required medical services or \nresulted in disability or death; (3) the injury is established by medical evidence supported \nby objective findings, which are those findings which cannot come under the voluntary \ncontrol of the patient; and (4) the injury was caused by a specific incident and is identifiable \nby time and place of occurrence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, \n \n5\n The compensability issue as framed by the parties in the Prehearing Order was not \nlimited to a specific-incident theory. But the claimant made clear in his testimony that his \nalleged neck injury arose out of the same specific incident that the parties have stipulated \nresulted in his sustaining his compensable right shoulder injury. Moreover, nothing in his \ntestimony alluded to his alleged neck injury being gradual-onset in origin. \n\nC. WALTON- H406771 & H500714 \n19 \n \n938 S.W.2d 876 (1997). If a claimant fails to establish by a preponderance of the evidence \nany of the above elements, compensation must be denied. Id. \n The claimant cannot support his claim for a compensable neck injury because the \nevidentiary record is devoid of objective findings of such an injury.  \nAlso, the accident report form nor the Form AR-N signed by the claimant indicate \nthat he sustained a neck injury that day. The medical records from the claimant’s after-\naccident visits do not indicate any complaints of a neck injury. And the physical therapy \nintake forms completed by the claimant similarly do not make any mention of a neck injury. \nThe first reference to a complaint about the claimant’s neck does not appear until the \nclaimant’s 4 September 2024 surgical consult with Dr. Hussey. That complaint is later \nnoted as “possibly secondary to cervical spine derangement/radiculopathy.” [Cl. Ex. No 1 at \n35.] A 31 January 2025 X-ray of the claimant’s cervical spine revealed “relatively normal \njoint alignment” and “[a]rthritic changes present from the C5-7 levels.” [Cl. Ex. No 1 at 53.] \nDr. Hussey noted that he recommended the claimant see a spine specialist “to see if \npossibly his cervical complaint is related to his occupation related injury.” He then clearly \nrejects offering an opinion on causality, stating, “I cannot comment on spine injury \nrelatedness, since I am not a spine specialist.” [Id.] A causal relationship may be \nestablished between an employment-related incident and a subsequent physical injury \nbased on the evidence that the injury manifested itself within a reasonable period of time \nfollowing the incident, so that the injury is logically attributable to the incident, where \nthere is no other reasonable explanation for the injury. Hall v. Pittman Construction Co., \n234 Ark. 104, 357 S.W.2d 263 (1962). This, though, did not occur here. \n The claimant has failed to meet his burden on objective findings supporting a claim \nfor a compensable neck injury, and he has failed to meet his burden on proving that any \neventual complaints of a possible neck injury arose out of and in the course of his \n\nC. WALTON- H406771 & H500714 \n20 \n \nemployment with the City. His claim for compensability on an alleged neck injury under \nClaim No H406771 must, therefore, fail. \nII. THE AVERAGE WEEKLY WAGE ON CLAIM No H406771. \nArkansas Code Annotated § 11-9-705(a)(3) provides that “[c]ompensation shall be \ncomputed on the average weekly wage earned by the employee under the contract of hire in \nforce at the time of the accident and in no case shall be computed on less than a full-time \nworkweek in the employment.” The wage records evidence that the claimant was paid \nweekly between his 5 September 2023 date of hire and his 26 January 2024 injury.\n6\n [Cl. Ex. \nNo 2; Resp. Ex. No 2.] His first full-time check was paid on 15 September 2023. The \nclaimant’s full-time work continued until the date of his injury, excepting the week \npreceding his 5 January 2024 check, when he worked only 18 hours and the following week, \nwhen he only worked 38 hours.  \nThe wage records reflect 20 pay periods and 18 full-time weeks of pay between the \nclaimant’s date of hire and his accepted right shoulder injury. He earned a total of \n$12,184.50 in regular wages during those 18 weeks.\n7\n The average weekly wage calculation \nfor his regular pay is $676.92.  \nUnder Ark. Code Ann. § 11-9-518(b): \nOvertime earnings are to be added to the regular weekly wages and shall be \ncomputed by dividing the overtime earning by the number of weeks worked \nby the employee in the same employment under the contract of hire in force \nat the time of the accident, not to exceed a period of fifty-two (52) weeks \npreceding the accident. \n \n \n6\n The respondents provided a Form W for the claimant, but that form shows weeks of \npayment exceeding the period of time between the claimant’s date of hire and date of injury \non Claim No H406771. For calculating the claimant’s average weekly wage, I have relied \ninstead on the weekly wage records provided by both parties. \n7\n The wage records include an unexplained bonus of $83.36 paid for the week of 15 \nDecember 2023. I have not included this amount in the claimant’s regular weekly wage \ncalculation. \n\nC. WALTON- H406771 & H500714 \n21 \n \nThe wage records also reflect the claimant’s overtime pay earned during those 20 \npay periods. That amount totals $2,584.06. The overtime earned over those 20 weeks \naverages to a weekly sum of $129.20. Combining the regular and overtime wage amounts \nresults in an average weekly wage of $806.12. This corresponds to a temporary total \ndisability rate of $538. When this rate is compared against the indemnity payout history in \nthe record, the evidence does not preponderate in favor of finding that the respondents \nunderpaid the claimant for his TTD benefits provided after his right shoulder surgery. \nIII. THE CLAIMANT HAS FAILED TO PROVE THAT HE IS ENTITLED TO \n ADDITIONAL TTD BENEFITS. \n \n The respondents provided TTD benefits to the claimant in connection with Claim No \nH406771 for a period of time following his right shoulder surgery in early October of 2024. \nThose benefits ended around his release to return to work with restrictions on 28 October \n2024. He now seeks an award of additional TTD benefits for the period between 13 January \n2025 and 9 May 2025. The beginning of this period relates to the time that the claimant \nwas still employed by the City but had stopped showing up for work. He could not provide a \ndoctor’s note to authorize his absenteeism; and his continued unauthorized nonattendance \nwas the basis for his termination on 22 January 2025.  \n The compensable injury to the claimant's right shoulder is unscheduled. See Ark. \nCode Ann. § 11-9-521. An employee who suffers a compensable unscheduled injury is \nentitled to temporary total disability compensation for that period that is within the \nhealing period and in which he has suffered a total incapacity to earn wages. Ark. State \nHwy. & Transp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing \nperiod ends when the underlying condition causing the disability has become stable and \nnothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. \nParker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). A claimant must demonstrate that the \n\nC. WALTON- H406771 & H500714 \n22 \n \ndisability lasted more than seven days. Ark. Code Ann. § 11-9-501(a)(1). He must prove his \nentitlement to benefits by a preponderance of the evidence. Ark. Code Ann. § 11-9-705(a)(3). \nThe records here show that the claimant remained in a healing period until his release at \nMMI without restrictions on 9 May 2025. The dispute is to whether the claimant was \ntotally incapacitated from earning wages during the period of time that he seeks these \nadditional benefits. \n As an initial matter, I do not find the claimant to be entitled to additional TTD \nbenefits for any period between 15 January 2025 and his termination on 22 January 2025. \nHe was employed during that time with job duties that were within his restrictions. The \nrecord reflects that despite his choosing not to show up for work during this time, he \nremained employed with job duties within his restrictions. He was plainly not suffering a \ntotal incapacity to earn wages during this time. And there was no evidence that the \nclaimant would not have continued his employment (and associated capacity to earn wages) \nwith the City but for his termination for violating the attendance policy. \n The next question is whether the respondent’s obligations for providing TTD \nbenefits carried beyond the end of his employment with the City because he was totally \nincapacitated to earn any wages during the time between his termination and the 9 May \n2025 end of his healing period. In his post-hearing brief, the claimant argues that the facts \nin this case align with those in Tyson Poultry v. Narvaiz, 2012 Ark. 118, 388 S.W.3d 16. He \nstates that his light-duty restrictions “rendered him completely incapacitated” after his \ntermination. The facts here, however, are distinct from those in Narvaiz. In that case, an \nemployee was in a healing period and suspended for misconduct. After returning to work \nfrom his suspension, he was terminated. The Arkansas Supreme Court affirmed the \nCommission’s finding that under those circumstances the claimant’s “termination for \nmisconduct was not a sufficient basis for finding that he refused suitable employment” \n\nC. WALTON- H406771 & H500714 \n23 \n \nunder Ark. Code Ann. § 11-9-526. Id. In analyzing Narvaiz, the Court declined to apply its \nholding in Roark v. Pocahontas Nursing & Rehabilitation, 95 Ark. App. 176, 235 S.W.3d \n527 (2006). In so doing, it stated that Roark, unlike Narvaiz, “involved a claimant whose \nemployment was terminated for violation of her employer’s attendance policy rather than a \nviolation of a conduct policy.” (Emphasis in original.) The claimant here, notably, was \nterminated for violating an attendance policy. \nThe respondents point to Rogers v. Aramark, 2022 Ark. App. 507, 657 S.W.3d 196, \nfor guidance instead. In that case, the claimant was fired from his “sales-route \nrepresentative” position (a pick-up and delivery driver) while he was still in a healing \nperiod for a low-back injury. He had been working light-duty at the time of his termination.  \nRogers also argues that he was totally incapacitated from earning wages. He \ncontends that, while Aramark accommodated his restrictions, he clearly had \nno options for work once Aramark fired him. He asserts that the type of light-\nduty job that he was performing at Aramark would be “rare to find” and that \nhis restrictions prevent him from being able to work within his field or in any  \ncompetitive work environment. \n \nThere is no indication in the record that Rogers was fired by Aramark \nbecause he could not perform the light-duty job that had been created for \nhim. In fact, Rogers testified that he would still be working at Aramark if he \nhad not been terminated.  \n \nId. The Court noted that there was no medical evidence suggesting that the claimant could \nnot work within his restrictions. See also, Turcios v. Tyson Foods, Inc. 2016 Ark. App. 471, \n504 S.W.3d 622 (citing Tyson Chicken, Inc. v. Witherspoon, 2012 Ark. App. 99; and Watts v. \nSears Roebuck & Co., 2011 Ark. App. 529, 386 S.W.3d 19). \n The facts here are more akin to those in Rogers and Roark. While the claimant \nargues that his restrictions rendered him incapable of earning any wages, he had been \nperforming his assigned work apparently without issue since his return to work in October \n\nC. WALTON- H406771 & H500714 \n24 \n \nof 2024. Shortly after his termination, his restrictions were eased, with no indication that \nthat he had been experiencing any work-related difficulties performing any assigned duties.  \n Also, the claimant was not credible with regard to his testimony around the time of \nhis termination. He stated that he stopped showing up for work because he needed to see a \ndoctor. Yet he presented no evidence of any unplanned or as-needed doctor’s visits around \nthat time. To the contrary, Mr. Robinson credibly testified that he contacted the claimant at \nthe beginning of his absenteeism after being prompted by a claims manager who reported \nthat the claimant had missed a doctor’s appointment. A case manager’s letter dated just \nbefore the claimant’s termination corroborated that the respondents were attempting to \ncontact the claimant about recently missed treatment appointments. Mr. Robinson also \ntestified that the claimant was to return to work and provide any doctor’s notes for his \nunscheduled absences, as indicated on his attendance records; but the claimant never \nreturned to work. Nor did he present any medical evidence at the hearing authorizing his \nabsences or relating his absences to his compensable injury. \n The claimant was also not credible in his testimony that he called into work every \nday that he was absent or that Mr. Robinson supposedly reported begging the City to let \nthe claimant stay on despite his unexcused absences. Mr. Robinson credibly testified that \nthe decision to terminate for violation of the attendance policy was his. And he credibly \ntestified that the claimant was not making daily calls to report his intended absences. The \ncontemporaneous attendance records corroborate Mr. Robinson’s testimony. \n Similarly, the claimant was not credible with his recollection of the removal of his \nlight-duty restrictions and his release to full duty. He testified that he was unable to find \nwork after his termination because of his restrictions and that he told APRN Hart he \nneeded his restrictions lifted. She responded, he testified, “Well, Mr. Walton, I’m going to \ntake you off your restrictions.” [TR at 44.] The claimant said that he then returned to the \n\nC. WALTON- H406771 & H500714 \n25 \n \ncompany that couldn’t hire him with restrictions and secured a job. The medical evidence, \nhowever, clearly shows that the claimant’s release was not the result of a plea to Hart at \nhis appointment on 9 May 2025. His full-duty release had been anticipated by Dr. Hussey \nback on 28 March 2025 when he scheduled the claimant for that final (9 May 2025) visit \nwith Hart. \n In short, I do not find the claimant to be credible in any of his testimony around the \ntime of his unexcused absences, his termination, his release from care, or his efforts to find \nwork after his termination. His sudden period of unexcused absences in January of 2025 \nnot inconsistent with the same behavior that resulted in his termination for unexcused \nabsences in June of 2024. Both terminations were for violations of the respondent-\nemployer’s attendance policy; and neither was related to his compensable right shoulder \ninjury. The evidence preponderates against finding that the claimant’s restrictions \nrendered him totally incapable of earning wages. His claim for additional TTD benefits \nmust, therefore, fail.  \nIV. THE CLAIMANT HAS FAILED TO PROVE BY A PREPONDERANCE OF \n THE EVIDENCE THAT HE IS ENTITELD TO ADDITIONAL MEDICAL \n TREATMENT ON CLAIM No H500714.  \n \n The claimant also seeks additional treatment for his accepted back injury in \nconnection with Claim No H500714. Employers must promptly provide medical services \nwhich are reasonably necessary in connection with the compensable injuries, Ark. Code \nAnn. § 11-9-508(a). However, injured employees have the burden of proving by a \npreponderance of the evidence that medical treatment is reasonably necessary. Patchell v. \nWal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). What constitutes reasonable \nand necessary medical treatment is a fact question for the Commission, and the resolution \nof this issue depends upon the sufficiency of the evidence. Gansky v. Hi-Tech Engineering, \n325 Ark. 163, 924 S.W.2d 790 (1996). \n\nC. WALTON- H406771 & H500714 \n26 \n \n  Dr. Kleinbeck diagnosed the claimant with a lumbar strain on 13 December \n2024 and returned him to work without restrictions. Some medications were \nprescribed; but no other studies, interventions, or time-sensitive follow-ups were \nordered. The claimant presented to clinic again with the same complaints of back \npain on 24 February 2025. X-rays conducted that day showed chronic degenerative \nchanges. A subsequent MRI study revealed “multilevel degenerative disc disease.” \nUpon reviewing that study, Dr. Kleinbeck noted, “He does have a few areas where it \nlooks like he may have some nerve compression: would refer him over to Ortho \nArkansas spine clinic, since he is already seeing Dr. Hussey at Ortho Arkansas.” [Cl. \nEx. No 3 at 9.] Afterwards, the respondents denied further treatment. \n The imaging studies of the claimant’s back that are in evidence only reveal \ndegenerative changes. While the claimant testified that he recently underwent an \ninjection for back pain, he did not provide any records that purport to relate that or \nany other treatment to his workplace injury. The claimant must prove that any \ntreatment he is seeking is causally related to this compensable injury. See Pulaski \nCty. Spec. Sch. Dist. v. Tenner, 2013 Ark. App. 569, 2013 Ark. App. LEXIS 601. The \nclaimant has therefore failed to prove by a preponderance of the evidence that he is \nentitled to any additional reasonable or necessary medical treatment for his back.   \nV. THE CLAIMANT HAS FAILED TO PROVE BY A PREPONDERANCE OF \n THE EVIDENCE THAT HE IS ENTITLED TO AN INDEPENDENT \n MEDICAL EXAMINATION FOR HIS RIGHT SHOULDER. \n \n At the beginning of the hearing, the claimant sought to add as an issue whether the \nhe was entitled to an independent medical examination (IME) for his right shoulder. “We \nbelieve that Dr. [Hussey] didn’t pay attention when he did that zero rating following \n\nC. WALTON- H406771 & H500714 \n27 \n \nsurgery.”\n8\n [TR at 11.] The respondents did not object to the addition of the issue, so it is \nbeing addressed here. As for their objection as to his entitlement to the same, they noted (1) \nthat the claimant had not sought a second opinion on his shoulder and any potential \npermanent impairment via a Change of Physician and (2) that the claimant “incorrectly \npresumes that because a surgery was performed, he is automatically entitled to a rating.” \n[TR at 18.] \n In their post-hearing briefing, the parties essentially assert the same arguments. \nBoth cite Ark. Code Ann. § 11-9-511, which provides: \n(a) An injured employee claiming to be entitled to compensation shall submit \nto such physical examination and treatment by another qualified physician, \ndesignated or approved by the Workers' Compensation Commission, as the \ncommission may require from time to time if reasonable and necessary. \n \n See generally Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d \n472 (1997) (Arey, J. Concurring). \n I agree with the respondents that the claimant has not provided a preponderance of \nevidence to support a finding that such an examination is reasonable or necessary. The \nclaimant testified that he still has some pain in his right shoulder and that his strength is \nnot the same. Yet he presented no credible evidence to contradict Dr. Hussey’s assignment \nof a zero percent (0%) impairment rating without restrictions. Dr. Hussey maintained a \nphysician-patient relationship with the claimant that began with his initial surgical consult \non 4 September 2024 and continued through the claimant’s release on 9 May 2025. Dr. \nHussey referred the claimant to a physical therapy program and was able to review those \nexam and progress notes throughout the claimant’s recovery. The records from the \nclaimant’s last clinic visit state, “Exam right shoulder demonstrates full range of motion in \n \n8\n The claimant did not ask that the Commission assign him a permanent impairment rating \nin this litigation. In his prehearing filing, he specifically reserved the same. \n\nC. WALTON- H406771 & H500714 \n28 \n \nall planes without crepitation. 5/5 rotator cuff strength.” [Cl. Ex. No 1 at 87.] The \nCommission is authorized to accept or reject a medical opinion and is authorized to \ndetermine its medical soundness and probative value. Poulan Weed Eater v. Marshall, 79 \nArk. App. 129, 84 S.W.3d 878 (2002). I find Dr. Hussey’s assessment to be sound based on \nthe record evidence; and in the absence of persuasive proof as to any error in that \nassessment, I find that the evidence preponderates against finding an independent medical \nexamination to be reasonable or necessary. \nVI. ATTORNEY’S FEE \n The claimant has failed to prove by a preponderance of the evidence that he is \nentitled to an attorney’s fee. \nCONCLUSION AND AWARD \n The claimant has failed to prove by a preponderance of the evidence that he is \nentitled to any of the benefits sought in this litigation. His claims are hereby DENIED and \nDISMISSED, accordingly. \n SO ORDERED. \n       ______________________________________ \n       JayO. Howe \n       Administrative Law Judge","textLength":56708,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM Nos H406771 & H500714 CALVIN WALTON, EMPLOYEE CLAIMANT CITY OF STUTTGART, SELF- INSURED EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, TPA RESPONDENT OPINION & ORDER FILED 29 AUGUST 2025 Heard before Arkansas Workers’ Compensation Commission Administrative Law ...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:4","denied:3"],"injuryKeywords":["shoulder","neck","back","rotator cuff","cervical","repetitive","lumbar","strain"],"fetchedAt":"2026-05-19T22:38:10.737Z"},{"id":"full_commission-H305931-2025-08-28","awccNumber":"H305931","decisionDate":"2025-08-28","decisionYear":2025,"opinionType":"full_commission","claimantName":"Kim Welborn","employerName":"Inspiration Point Fine Art College","title":"WELBORN VS. INSPIRATION POINT FINE ART COLLEGE AWCC# H305931 August 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Welborn_Kim_H305931_20250828.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Welborn_Kim_H305931_20250828.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H305931 \nKIM WELBORN, EMPLOYEE      CLAIMANT \nINSPIRATION POINT FINE ART COLLEGE, \nEMPLOYER                          RESPONDENT \n \nFIRSTCOMP INS. CO., \nINSURANCE CARRIER/TPA         RESPONDENT \n \n \nOPINION FILED AUGUST 28, 2025 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant unrepresented and appearing pro se.  \nRespondents  represented  by  the  HONORABLE RANDY P.  MURPHY, \nAttorney, Little Rock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Respondent appeals an opinion and order of the Administrative Law \nJudge filed May 7, 2025.  In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law:  \n1. The stipulations agreed to by the parties at the \npre-hearing  conference  conducted  on  January \n29, 2025, and contained in a pre-hearing order \nfiled that same date are hereby accepted as fact.  \n \n\n2 \nWELBORN – H305931 \n \n2. Claimant has met her burden of proving by a \npreponderance of the evidence that she is \nentitled to additional medical treatment from Dr. \nDona. This includes PRP (plasma rich protein) \ninjections and hyaluronic acid injections.  \nWe have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s May 7, 2025 \ndecision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed. Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n                        \n \n \nCommissioner Mayton dissents \n\n3 \nWELBORN – H305931 \n \nDISSENTING OPINION \n \n I respectfully dissent from the majority opinion finding that the \nclaimant is entitled to additional medical treatment in the form of the \ninjections prescribed by Dr. Dona for her compensable right knee injury \nsustained on June 5, 2022. In my de novo review of the record, I find the \ntreatments recommended by Dr. Dona are neither reasonable nor \nnecessary. \n      The claimant suffered a compensable injury while working as \na seasonal costume manager for the respondent employer when she \ntripped on a rubber mat, twisting her knee and tearing her meniscus. The \nclaimant’s current treating physician, Dr. Samuel Dona, prescribed platelet-\nrich plasma (PRP) and hyaluronic acid (HA) injections to treat claimant’s \nongoing symptoms. \nAfter a hearing, an administrative law judge (ALJ) ruled that the \nclaimant is entitled to additional medical treatment in the form of the \ninjections prescribed by Dr. Dona.  \nArk. Code Ann. § 11-9-508(a) requires an employer to provide an \ninjured employee with medical and surgical treatment \"as may be \nreasonably necessary in connection with the injury received by the \nemployee.\" The claimant has the burden of proving by a preponderance of \nthe evidence the additional treatment is reasonable and necessary. Nichols \n\n4 \nWELBORN – H305931 \nv. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission. Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023). In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy. Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013).  \nIt is within the Commission's province to weigh all the medical \nevidence to determine what is most credible and to determine its medical \nsoundness and probative force. Sheridan Sch. Dist. v. Wise, 2021 Ark. App. \n459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness. Id. However, \nthe Commission has the authority to accept or reject medical opinions. \nWilliams v. Ark. Dept. of Community Corrections, 2016 Ark. App. 427, 502 \nS.W. 3d 530 (2016). Furthermore, it is the Commission's duty to use its \nexperience and expertise in translating the testimony of medical experts \ninto findings of fact and to draw inferences when testimony is open to more \nthan a single interpretation. Id.   \nSpecifically, the American Academy of Orthopaedic Surgeons, \nrecommends against the use of HA injections due to a lack of generalized \n\n5 \nWELBORN – H305931 \nresults over the course of twenty-eight (28) studies. There is limited \nstatistical proof of the benefit of HA injections. \nIn the course of litigating this claim, the respondents obtained an \nindependent review of the claimant’s medical records by Dr. Owen Kelly, an \northopedic surgeon. In a letter dated April 17, 2024, Dr. Kelly opined that \nthe claimant had reached maximum medical improvement and stated that \nhe would assign the claimant a seven percent (7%) impairment rating to the \nlower extremity. Dr. Kelly opined that regarding future medical treatment: \nNo further treatment is recommended as it relates to \nthe isolated accident. At most, the meniscal tear \nwould be attributed to the incident, but the other \nfindings which included articular cartilage loss \n(arthritis) would not be related to a one-time isolated \naccident. \n  \nThis opinion is substantiated by a post-surgical MRI dated November \n29, 2023, which showed the progression of the claimant’s meniscus.  \nPresently, the claimant has “[p]retty close” to full range of motion of \nher right knee. The injections performed by Dr. Dona to date have resulted \nin only moderate improvement according to the claimant ... “maybe 5, 10 \npercent” improvement to the claimant’s pain. The claimant testified after the \ninjections she only gets a little better and then it plateaus.  \nAs Dr. Kelly highlighted, there is a moderate recommendation \nagainst the use of HA injections due to inconsistent evidence to support its \nuse. Dr. Kelly stated in his report that PRP-Hyaluronic Acid injections are \n\n6 \nWELBORN – H305931 \nnot reasonable and necessary medical treatment for her knee.  Further, Dr. \nKelly reviewed the entirety of the claimant’s medical records prior to issuing \nhis opinion that the claimant has reached maximum medical improvement \nand that any ongoing pain is related to her chronic arthritis. This evidence \nwas arbitrarily disregarded by the ALJ.  \nDr. Kelly’s opinion is strong evidence that the prescribed treatment is \nnot necessary or reasonable for the treatment of the claimant’s \ncompensable injury, as the claimant’s medical records clearly indicate her \ninjury has resolved.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n_______________________________ \nMICHAEL R. MAYTON, Commissioner","textLength":7327,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305931 KIM WELBORN, EMPLOYEE CLAIMANT INSPIRATION POINT FINE ART COLLEGE, EMPLOYER RESPONDENT FIRSTCOMP INS. CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 28, 2025 Upon review before the FULL COMMISSION in Little...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:29:44.092Z"},{"id":"alj-H305931-2025-08-28","awccNumber":"H305931","decisionDate":"2025-08-28","decisionYear":2025,"opinionType":"alj","claimantName":"Kim Welborn","employerName":"Inspiration Point Fine Art College","title":"WELBORN VS. INSPIRATION POINT FINE ART COLLEGE AWCC# H305931 August 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Welborn_Kim_H305931_20250828.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Welborn_Kim_H305931_20250828.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H305931 \nKIM WELBORN, EMPLOYEE      CLAIMANT \nINSPIRATION POINT FINE ART COLLEGE, \nEMPLOYER                          RESPONDENT \n \nFIRSTCOMP INS. CO., \nINSURANCE CARRIER/TPA         RESPONDENT \n \n \nOPINION FILED AUGUST 28, 2025 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant unrepresented and appearing pro se.  \nRespondents  represented  by  the  HONORABLE RANDY P.  MURPHY, \nAttorney, Little Rock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Respondent appeals an opinion and order of the Administrative Law \nJudge filed May 7, 2025.  In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law:  \n1. The stipulations agreed to by the parties at the \npre-hearing  conference  conducted  on  January \n29, 2025, and contained in a pre-hearing order \nfiled that same date are hereby accepted as fact.  \n \n\n2 \nWELBORN – H305931 \n \n2. Claimant has met her burden of proving by a \npreponderance of the evidence that she is \nentitled to additional medical treatment from Dr. \nDona. This includes PRP (plasma rich protein) \ninjections and hyaluronic acid injections.  \nWe have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s May 7, 2025 \ndecision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed. Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n                        \n \n \nCommissioner Mayton dissents \n\n3 \nWELBORN – H305931 \n \nDISSENTING OPINION \n \n I respectfully dissent from the majority opinion finding that the \nclaimant is entitled to additional medical treatment in the form of the \ninjections prescribed by Dr. Dona for her compensable right knee injury \nsustained on June 5, 2022. In my de novo review of the record, I find the \ntreatments recommended by Dr. Dona are neither reasonable nor \nnecessary. \n      The claimant suffered a compensable injury while working as \na seasonal costume manager for the respondent employer when she \ntripped on a rubber mat, twisting her knee and tearing her meniscus. The \nclaimant’s current treating physician, Dr. Samuel Dona, prescribed platelet-\nrich plasma (PRP) and hyaluronic acid (HA) injections to treat claimant’s \nongoing symptoms. \nAfter a hearing, an administrative law judge (ALJ) ruled that the \nclaimant is entitled to additional medical treatment in the form of the \ninjections prescribed by Dr. Dona.  \nArk. Code Ann. § 11-9-508(a) requires an employer to provide an \ninjured employee with medical and surgical treatment \"as may be \nreasonably necessary in connection with the injury received by the \nemployee.\" The claimant has the burden of proving by a preponderance of \nthe evidence the additional treatment is reasonable and necessary. Nichols \n\n4 \nWELBORN – H305931 \nv. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission. Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023). In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy. Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013).  \nIt is within the Commission's province to weigh all the medical \nevidence to determine what is most credible and to determine its medical \nsoundness and probative force. Sheridan Sch. Dist. v. Wise, 2021 Ark. App. \n459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness. Id. However, \nthe Commission has the authority to accept or reject medical opinions. \nWilliams v. Ark. Dept. of Community Corrections, 2016 Ark. App. 427, 502 \nS.W. 3d 530 (2016). Furthermore, it is the Commission's duty to use its \nexperience and expertise in translating the testimony of medical experts \ninto findings of fact and to draw inferences when testimony is open to more \nthan a single interpretation. Id.   \nSpecifically, the American Academy of Orthopaedic Surgeons, \nrecommends against the use of HA injections due to a lack of generalized \n\n5 \nWELBORN – H305931 \nresults over the course of twenty-eight (28) studies. There is limited \nstatistical proof of the benefit of HA injections. \nIn the course of litigating this claim, the respondents obtained an \nindependent review of the claimant’s medical records by Dr. Owen Kelly, an \northopedic surgeon. In a letter dated April 17, 2024, Dr. Kelly opined that \nthe claimant had reached maximum medical improvement and stated that \nhe would assign the claimant a seven percent (7%) impairment rating to the \nlower extremity. Dr. Kelly opined that regarding future medical treatment: \nNo further treatment is recommended as it relates to \nthe isolated accident. At most, the meniscal tear \nwould be attributed to the incident, but the other \nfindings which included articular cartilage loss \n(arthritis) would not be related to a one-time isolated \naccident. \n  \nThis opinion is substantiated by a post-surgical MRI dated November \n29, 2023, which showed the progression of the claimant’s meniscus.  \nPresently, the claimant has “[p]retty close” to full range of motion of \nher right knee. The injections performed by Dr. Dona to date have resulted \nin only moderate improvement according to the claimant ... “maybe 5, 10 \npercent” improvement to the claimant’s pain. The claimant testified after the \ninjections she only gets a little better and then it plateaus.  \nAs Dr. Kelly highlighted, there is a moderate recommendation \nagainst the use of HA injections due to inconsistent evidence to support its \nuse. Dr. Kelly stated in his report that PRP-Hyaluronic Acid injections are \n\n6 \nWELBORN – H305931 \nnot reasonable and necessary medical treatment for her knee.  Further, Dr. \nKelly reviewed the entirety of the claimant’s medical records prior to issuing \nhis opinion that the claimant has reached maximum medical improvement \nand that any ongoing pain is related to her chronic arthritis. This evidence \nwas arbitrarily disregarded by the ALJ.  \nDr. Kelly’s opinion is strong evidence that the prescribed treatment is \nnot necessary or reasonable for the treatment of the claimant’s \ncompensable injury, as the claimant’s medical records clearly indicate her \ninjury has resolved.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n_______________________________ \nMICHAEL R. MAYTON, Commissioner","textLength":7327,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305931 KIM WELBORN, EMPLOYEE CLAIMANT INSPIRATION POINT FINE ART COLLEGE, EMPLOYER RESPONDENT FIRSTCOMP INS. CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 28, 2025 Upon review before the FULL COMMISSION in Little...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:38:08.626Z"},{"id":"alj-H407416-2025-08-27","awccNumber":"H407416","decisionDate":"2025-08-27","decisionYear":2025,"opinionType":"alj","claimantName":"Carl Avery","employerName":"Dump It Dumpster Rental LLC","title":"AVERY VS. DUMP IT DUMPSTER RENTAL LLC. AWCC# H407416 August 27, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Avery_Carl_H407416_20250827.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Avery_Carl_H407416_20250827.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H407416 \n \nCARL E. AVERY, \nEMPLOYEE                                                                                                              CLAIMANT \n \nDUMP IT DUMPSTER RENTAL LLC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nACCIDENT FUND INS. CO. of AMERICA, \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED AUGUST 27, 2025 \n \nHearing conducted on Wednesday, July 30, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Mr. Carl E. Avery, Pro Se, of Stuttgart, Arkansas.  \n \nThe Respondents  were represented by Mr. Guy  Alton  Wade,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non May  14, 2025.    A  hearing  on  the  motion  was  conducted  on July 30,  2025,  in Little  Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a driver. The date for Claimant’s \nalleged  injury  was  on September 3,  2024. He  reported  his injury  to  Respondent/Employer on \nOctober 30, 2024. Respondents admitted into the record Respondents’ Exhibit 1, pleadings, and \ncorrespondence, consisting of 8 pages. The Commission has admitted into evidence Commission \nEx. 1, pleadings, correspondence,  and  U.S.  Mail  return  receipts,  consisting  of 10 pages, as \ndiscussed infra. \n\nAVERY, AWCC No. H407416 \n \n2 \n \nThe record reflects on November 13, 2024, a Form AR-C was filed with the Commission \nby  Claimant’s  then-counsel, Mark  Peoples, purporting  that  Claimant sustained  work-related \ninjuries to his back and neck. On November 14, 2024, a Form AR-1 was filed with the Commission \npurporting  that  Claimant pulled  back  muscles  changing  a  tire. On November  25,  2024,  a  Form \nAR-2  was  filed by  Respondents neither  accepting  nor  denying  compensability. However, \nRespondents’ counsel confirms during the motion to dismiss hearing that compensability was \naccepted, and benefits were provided. Claimant was released from treatment with no restrictions \nin  January  2025. Claimant next filed  for  a  change  of  physician  on January 3,  2025. Claimant’s \nthen-counsel withdrew that request for a change  of physician on March 17, 2025. On that same \nday, Claimant’s counsel filed a motion to withdraw as counsel. The Full Commission granted the \nmotion on April 23, 2025.  \nOn May 14,  2025, Respondents’ counsel filed  a  Motion  to  Dismiss due  to Claimant’s \nfailure to prosecute his claim. The Claimant was sent, on May 19, 2025, notice of the Motion to \nDismiss, via certified and regular U.S. Mail, to his last known address. The certified motion notice \nwas not claimed by Claimant as noted on the June 3, 2025, return receipt. This notice sent regular \nU.S.  Mail  did  not  return  to  the  Commission. The  Claimant  did not respond  to  the  Motion,  in \nwriting, as required. Thus, in accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of Respondents’ Motion to Dismiss hearing date at his current address \nof record via the United States Postal Service (USPS), First Class Certified Mail, Return Receipt \nRequested, and regular First-Class Mail, on June 24, 2025. The certified notice was not claimed \nas noted by the July 10, 2025, return receipt. The hearing notice sent regular First-Class was not \nreturned to the Commission. The hearing took place on July 30, 2025. And as mentioned before, \nthe Claimant did not show up to the hearing. \n\nAVERY, AWCC No. H407416 \n \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the July 30,  2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed  to  prosecute  his  claim  under 11  C.A.R. § 25-110  (formerly AWCC  Rule \n099.13.) \n4.  \n5. The Respondents’ Motion to Dismiss should be granted. \n \n6. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. § 25-110 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with 11 C.A.R. § 25-110, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. The certified hearing notice was \nnot claimed by Claimant, per the return postal notice bearing the July 10, 2025, date. However, \nthe hearing notice sent regular First-Class mail was not returned to the Commission. The Claimant \n\nAVERY, AWCC No. H407416 \n \n4 \n \nis responsible for updating his address with the Commission. Thus, I find by the preponderance of \nthe evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. § 25-110 allows the Commission, upon meritorious application, to \ndismiss an action pending before it due to a want of prosecution. The Claimant filed his Form AR-\nC on November 13, 2024. Since then, he has failed to request a bona fide hearing. Therefore, I do \nfind by the preponderance of the evidence that Claimant has failed to prosecute his claim by failing \nto request a hearing. Thus, Respondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6476,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H407416 CARL E. AVERY, EMPLOYEE CLAIMANT DUMP IT DUMPSTER RENTAL LLC., EMPLOYER RESPONDENT ACCIDENT FUND INS. CO. of AMERICA, CARRIER/TPA RESPONDENT OPINION FILED AUGUST 27, 2025 Hearing conducted on Wednesday, July 30, 2025, before the Arkansas Workers’ Comp...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["back","neck"],"fetchedAt":"2026-05-19T22:38:04.468Z"},{"id":"alj-H306164-2025-08-27","awccNumber":"H306164","decisionDate":"2025-08-27","decisionYear":2025,"opinionType":"alj","claimantName":"Whitney Scruggs","employerName":"Express Services, Inc","title":"SCRUGGS VS. EXPRESS SERVICES, INC. AWCC# H306164 August 27, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SCRUGGS_WHITNEY_H306164_20250827.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCRUGGS_WHITNEY_H306164_20250827.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H306164 \n \nWHITNEY SCRUGGS, EMPLOYEE     CLAIMANT \n \nEXPRESS SERVICES, INC., EMPLOYER    RESPONDENT \nATU INSURANCE/SEDGWICK CMS, CARRIER/TPA   RESPONDENT \n \n \nOPINION FILED AUGUST 27, 2025 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on August 12, 2025. \nClaimant is pro-se and appeared at the hearing. \nRespondents are represented by their attorney, Carol Worley, of Little Rock, \nArkansas, who appeared on their behalf. \n \nSTATEMENT OF THE CASE \nA hearing was held in the above styled matter on August 12, 2025, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct, which has recently been renamed 11 C.A.R. 25-110(d) and will be referred to by that \nname in the remainder of this opinion. The claimant did appear at the time of the hearing \nand again testified that he wished to pursue his claim. A previous Motion to Dismiss was \nfiled on August 20, 2024, and a hearing was held on that motion on October 23, 2024.  At \nthe time of the previous hearing, the claimant appeared and requested that the Motion to \nDismiss  be  denied.  An  Opinion  was  issued  on  October  23,  2024,  and  the  motion  was \ndenied at that time. \nThe Opinion of October 23, 2024, in regard to the initial Motion to Dismiss, found \nthat a First Report of Injury was filed on or about September 21, 2023, which provided \nthat the claimant was injured on September 11, 2023, when the claimant slipped and fell \n\nSCRUGGS – H306164 \n2 \n \nand fractured his ribs and sternum. An AR – 2 was filed on September 25, 2023, which \nprovided  that  the  first  compensation  check, in  the  amount  of  $560.00  was  issued  on \nSeptember 19, 2021. A Form AR – C was filed on February 13, 2024, by the claimant’s \nattorney  at  the  time,  which  provided  that  the  claimant  had  injured  multiple  body  parts \nincluding without limitation, the back, tailbone, ribs, toes, face, and fingers. Claimant’s \nattorney  was  allowed  to  withdraw  on  July  22,  2024.  A  Motion  to  Dismiss  for  Failure  to \nProsecute was then filed on August 20, 2024, and the respondents contended that the \nclaimant had taken no additional action to prosecute his claim and that consequently, the \nmatter be dismissed for lack of prosecution pursuant to the Commission Rule now named \n11 C.A.R. 25-110 (d) and A.C.A. 11-9-702. The claimant admitted that he had not filed a \nresponse to the Motion to Dismiss but stated that he intended to pursue his claim. \nIn regard to the issue of dismissing the claim per the respondents’ initial Motion to \nDismiss, A.C.A. 11-9-702 (a) (4) provides that if within six (6) months after the filing of a \nclaim for compensation no bona fide request for a hearing has been made with respect \nto  the  claim,  the  claim may (emphasis  added)  upon  motion  and  after  hearing,  be \ndismissed without prejudice to the refiling of the claim within limitation periods specified \nin subdivisions (a) (1) – (3) of this section. Here the claimant appeared at the time of the \nhearing  and  unequivocally  stated  that  he  intended  to  pursue  his  claim  in  regard  to  his \ninjuries.  He  was  instructed  to  contact  the  Legal  Advisor  Division  of  the  Workers’ \nCompensation Commission. Based upon the claimant’s appearing  at  the  hearing,  his \nstatement that he intended to pursue his claim, and the fact that the claimant’s attorney \nwas allowed to withdraw, it was found back in October 23, 2024, that there was no basis \nto dismiss the claim at that time. \n\nSCRUGGS – H306164 \n3 \n \nA second Motion to Dismiss was filed on January 30, 2025, contending that the \nclaim should be dismissed pursuant to A.C.A. 11-9-702 and also what is now named 11 \nC.A.R. 25-110(d), a rule of the Workers’ Compensation Commission that provides upon \nan application by either party for a dismissal for failure to prosecute, the Commission may, \nafter reasonable notice to all parties, enter an order dismissing the claim.   \n It is noted that appropriate notice was provided to the claimant notifying him of the \nhearing and that he was in fact present. The claimant again stated that he intended to \npursue his claim. It is also noted that the claimant had failed to take any action to pursue \nhis  claim  since  the  previous  Motion  to  Dismiss,  although  he did  in  fact appear  at both \nMotion to Dismiss hearings. \nORDER \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having an opportunity to hear the statements of respondent’s attorney \nand the testimony of the claimant, it is found that the Motion to Dismiss shall be taken \nunder advisement at this time and that the claim shall proceed to a hearing pursuant to \nthe statutory law and the rules of the Arkansas Workers’ Compensation Commission in a \ntimely  process.  The  claimant  is hereby placed  upon  notice  that failing  to  respond  to \ndiscovery,  failing  to  pursue  his  claim  in  a  timely  manner, and failing  to  keep  the \nCommission notified of his mailing address, may result in the dismissal of his claim without \nprejudice. \nIT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":5414,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306164 WHITNEY SCRUGGS, EMPLOYEE CLAIMANT EXPRESS SERVICES, INC., EMPLOYER RESPONDENT ATU INSURANCE/SEDGWICK CMS, CARRIER/TPA RESPONDENT OPINION FILED AUGUST 27, 2025 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas on Augu...","outcome":"dismissed","outcomeKeywords":["dismissed:11"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:38:06.542Z"},{"id":"alj-H403030-2025-08-26","awccNumber":"H403030","decisionDate":"2025-08-26","decisionYear":2025,"opinionType":"alj","claimantName":"Kevin Gilliam","employerName":"All American Poly Corp","title":"GILLIAM VS. ALL AMERICAN POLY CORP. AWCC# H403030 August 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Gilliam_Kevin_H403030_20250826.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Gilliam_Kevin_H403030_20250826.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H403030 \n \nKEVIN L. GILLIAM, \nEMPLOYEE                                                                                                              CLAIMANT \n \nALL AMERICAN POLY CORP., \nEMPLOYER                                                                                                         RESPONDENT  \n \nTRAVELERS INDEMNITY CO. of AMERICA, \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED AUGUST 26, 2025 \n \nHearing conducted on Tuesday, July 29,  2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Mr. Kevin L. Gilliam, Pro Se, of Mulberry, Arkansas.  \n \nThe Respondents  were represented by Mr. Guy  Alton  Wade,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non May  15,  2025.    A  hearing  on  the  motion  was  conducted  on July 29,  2025,  in Little  Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a machinist. The date for Claimant’s \nalleged injury was on November 4, 2023. He reported his injury to Respondent/Employer on the \nsame  day. Respondents  admitted into  the  record Respondents’  Exhibit 1,  pleadings,  and \ncorrespondence, consisting of 13 pages. The Commission has admitted into evidence Commission \nEx. 1, correspondence, and U.S. Mail return receipts, consisting of 8 pages, as discussed infra. \n\nGILLIAM, AWCC No. H403030 \n \n2 \n \nThe  record  reflects  on May  7,  2024,  a  Form  AR-C  was  filed  with  the  Commission by \nClaimant’s then-counsel, Mark Peoples, purporting that Claimant sustained work-related injuries \nto his right hand. On May 22, 2024, a Form AR-1 was filed with the Commission purporting that \nClaimant’s disability specifically occurred when his (right) arm was caught in a winder from an \nextrusion  machine. Also  on  May  22,  2024,  a  Form  AR-2  was  filed by  Respondents accepting \ncompensability, medical only, for the crush injury to his right arm. Claimant filed for a change of \nphysician on September 13, 2024. This request was granted on January 8, 2025, thus changing his \nphysician from Dr. Clint Bearden to Dr. Austin Cole. On March 4, 2025, Claimant’s counsel filed \na motion to withdraw as counsel. The Full Commission granted the motion on April 9, 2025.  \nOn May  15,  2025, Respondents’ counsel filed  a  Motion  to  Dismiss due  to Claimant’s \nfailure to prosecute his claim. The Claimant was sent, on May 19, 2025, notice of the Motion to \nDismiss, via certified and regular U.S. Mail, to his last known address. The certified motion notice \nwas claimed  by  Claimant as  noted on  the May 22,  2025,  return  receipt. The  Claimant  did not \nrespond to the Motion, in writing, as required. Thus, in accordance with applicable Arkansas law, \nthe Claimant was mailed due and proper legal notice of Respondents’ Motion to Dismiss hearing \ndate  at  his current  address  of  record  via  the  United  States  Postal  Service  (USPS),  First  Class \nCertified  Mail,  Return  Receipt  Requested,  and  regular  First-Class  Mail,  on June 26,  2025.  The \ncertified  notice  was  claimed on June  30, 2025, as  noted  by  the return receipt.  The  hearing  took \nplace on July 29, 2025. And as mentioned before, the Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n\nGILLIAM, AWCC No. H403030 \n \n3 \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the July 29,  2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed  to  prosecute  his  claim  under 11  C.A.R. § 25-110  (formerly AWCC  Rule \n099.13. ) \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n 11 C.A.R. §  25-110 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with 11 C.A.R. §  25-110, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. The certified hearing notice was \nclaimed on June 30, 2025, per the return postal notice bearing the same date. Thus, I find by the \npreponderance of the evidence that reasonable notice was given to the Claimant.  \nFurthermore, 11 C.A.R. §  25-110 allows the Commission, upon meritorious application, \nto dismiss an action pending before it due to a want of prosecution. The Claimant filed his Form \nAR-C on May 7, 2024. Since then, he has failed to request a bona fide hearing. Therefore, I do \nfind by the preponderance of the evidence that Claimant has failed to prosecute his claim by failing \nto request a hearing. Thus, Respondents’ Motion to Dismiss should be granted. \n\nGILLIAM, AWCC No. H403030 \n \n4 \n \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6028,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H403030 KEVIN L. GILLIAM, EMPLOYEE CLAIMANT ALL AMERICAN POLY CORP., EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO. of AMERICA, CARRIER/TPA RESPONDENT OPINION FILED AUGUST 26, 2025 Hearing conducted on Tuesday, July 29, 2025, before the Arkansas Workers’ Compens...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:38:00.329Z"},{"id":"alj-H400710-2025-08-26","awccNumber":"H400710","decisionDate":"2025-08-26","decisionYear":2025,"opinionType":"alj","claimantName":"Walter Terry","employerName":"Auto Credit Express, LLC","title":"TERRY VS. AUTO CREDIT EXPRESS, LLC AWCC# H400710 August 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TERRY_WALTER_H400710_20250826.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TERRY_WALTER_H400710_20250826.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H400710 \n \nWALTER L. TERRY, EMPLOYEE      CLAIMANT \n \nAUTO CREDIT EXPRESS, LLC, \nEMPLOYER          RESPONDENT  \n \nNORGUARD INSURANCE COMPANY/ \nGUARD INSURANCE COMPANIES,  \nINSURANCE CARRIER/TPA      RESPONDENT   \n \nOPINION FILED AUGUST 26, 2025 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, on August 19, 2025. \nClaimant is represented by Daniel Wren, of Little Rock, Arkansas, who was \npresent in the courtroom, but who announced that the claimant has failed to stay \nin contact him. \nRespondents are represented by Karen H. McKinney, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on August 19, 2025, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13, now referred to as 11 C.A.R. 25 -110 (d) \nof  the  Arkansas  Workers’  Compensation Commission.    Pleadings  were  filed  by  the \nattorney for the claimant in response to the Motion to Dismiss, stating that he had lost \ntouch with the claimant.  A previous Motion to Dismiss hearing was held on the 15\nth\n day \nof October, 2024, and the claimant appeared pro se at the time of the first hearing, after \nhis original attorney had been allowed to withdraw only a few weeks prior to the hearing \nby  an  Order  of  the  Full  Commission,  dated  August  22,  2024.  At  the  time  of  the  initial \n\nTerry – H400710 \n2 \n \nMotion to Dismiss hearing, the claimant stated that he intended to pursue his claim and \nthe Motion to Dismiss was then denied by an Order and Opinion dated October 25, 2024.   \nThe claimant contended that he injured his neck and back due to an automobile \naccident on August 22, 2024.  The respondents filed a second Motion to Dismiss on June \n6, 2025, contending that the claimant had failed to prosecute the claim, that no bona fide \nrequest for a hearing had been made within six months of filing the claim, and that the \nclaim should be dismissed with prejudice pursuant to A.C.A. 11-9-702 and what is now \nnamed C.A.R. 25-110(d) of the Arkansas Workers’ Compensation Commission.     \nA hearing was set for August 19, 2025, in regard to the Motion to Dismiss.  The \nclaimant failed to appear at the hearing after proper notice, but the claimant’s attorney, \nDan Wren, did appear after responding to the Motion to Dismiss, where he stated that he \nhad lost contact with the Claimant.  At the time of the hearing, Karen McKinney appeared \non  behalf  of  the Respondents and asked  that  the  matter  be  dismissed  for  lack  of \nprosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nand the claimant’s attorney, there is no alternative but to find that the Motion to Dismiss \nshould be granted at this time, and the matter should be dismissed without prejudice. \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to \nDismiss should be granted and this matter should be dismissed without prejudice \n\nTerry – H400710 \n3 \n \npursuant to A.C.A. 11-9-702 and C.A.R. 25 -110(d) of the Arkansas Workers’ \nCompensation Commission at this time.   \nIT IS SO ORDERED: \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3455,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H400710 WALTER L. TERRY, EMPLOYEE CLAIMANT AUTO CREDIT EXPRESS, LLC, EMPLOYER RESPONDENT NORGUARD INSURANCE COMPANY/ GUARD INSURANCE COMPANIES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 26, 2025 Hearing before Administrative Law Judge James D. K...","outcome":"dismissed","outcomeKeywords":["dismissed:14","granted:2","denied:1"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:38:02.395Z"},{"id":"alj-H402459-2025-08-25","awccNumber":"H402459","decisionDate":"2025-08-25","decisionYear":2025,"opinionType":"alj","claimantName":"Makala Sanders","employerName":"Obi Holding Co","title":"SANDERS VS. OBI HOLDING CO. AWCC# H402459 August 25, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Sanders_Makala_H402459_20250825.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Sanders_Makala_H402459_20250825.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H402459 \n \nMAKALA SANDERS,  \nEMPLOYEE                                                                                                                     CLAIMANT \n \nOBI HOLDING CO., \nEMPLOYER                                                                                                                   RESPONDENT \n \nSENTRY CASUALTY CO., \nCARRIER/TPA                                                                                                           RESPONDENT  \n \n \nOPINION FILED AUGUST 25, 2025 \n \nHearing before Administrative Law Judge Steven Porch on July 29, 2025, in Little Rock, Pulaski \nCounty, Arkansas. \n \nThe Claimant was Pro Se, Little Rock, Arkansas. \n \nThe Respondents were represented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non May  8,  2025. No  testimony  was  taken  in  the case.  Claimant,  who  according  to  Commission \nrecords is pro se, failed to appear at the hearing. \nThe Claimant worked for the Respondent/Employer as an apheresis technician. The date \nfor  Claimant’s  alleged  injury  was  on January   25,   2024.   She   reported   her   injury   to \nRespondent/Employer on January 30, 2024. Admitted into evidence was Respondents’ Exhibit 1, \npleadings  and  correspondence,  consisting  of 15 pages.  I  have  also admitted  into  the  record \nCommission’s Exhibit 1, correspondence, pleadings, and return receipts, consisting of 8 pages, as \ndiscussed infra. \nThe  record  reflects  on July 31,  2024,  a  Form  AR-C was  filed  with  the  Commission by \nClaimant’s then-attorney,  Laura  Beth  York, purporting that  Claimant injured  her  back  and  left \n\nSANDERS H402459 \n \n 2 \nfoot. On April 11, 2024, a Form AR-1 was filed in this case, purporting that Claimant was injured \nwhile  riding  the  company  bus  when  it  hydroplaned  causing  equipment and  the  Claimant  to  be \nthrown out of place with some equipment striking the Claimant. Respondents on April 16, 2024, \nfiled  a  Form  AR-2, neither challenging nor  confirming compensability of Claimant’s alleged \ninjuries. However, at the hearing the Respondents confirmed that the Claimant’s injuries were \ncompensable. However, the Claimant would not respond to her attorney from March 18, 2025, to \nMarch 26, 2025, and beyond those dates. Claimant’s attorney filed a Motion  to  Withdraw  as \nCounsel on April 3, 2025. The Full Commission granted this request on April 30, 2025. Resp. Ex. \n1, pp. 4-9. \nThe Respondents next filed a Motion to Dismiss on May 8, 2025, requesting this claim be \ndismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. Mail, notice \nof the Motion to Dismiss from my office on May 20, 2025, to her last known address. The certified \nnotice was claimed by Claimant on May 22, 2025. Claimant did not respond to the notice in writing \nas required. Thus, in accordance with applicable Arkansas law, the Claimant was mailed due and \nproper legal notice of Respondents’ Motion to Dismiss hearing date at her current address of record \nvia the United States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, \nand  regular  First-Class  Mail,  on June  23,  2025.  The  certified  hearing  notice  was  claimed  by \nClaimant on June 30, 2025. The hearing took place on July 29, 2025. The Claimant did not show \nup to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n\nSANDERS H402459 \n \n 3 \n \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the July 29,  2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed  to  prosecute  his claim  under 11 C.A.R.§  25-110  (formerly AWCC  Rule \n099.13.)  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with 11 C.A.R.§ 25-110, the Commission scheduled and conducted a hearing, \nwith proper notice, on the Respondents’ Motion to Dismiss. The certified hearing notice was \nclaimed by Claimant on June 30, 2025. Respondent’s counsel was present and argued the motion. \nThus, I find by the preponderance of the evidence that reasonable notice was given to both parties.  \nFurthermore, 11 C.A.R.§ 25-110, allows the Commission, upon meritorious application, to \ndismiss an action pending before it due to a want of prosecution. The Claimant filed her Form AR-\nC on July 31, 2024. Since then, the Claimant has not requested a bona fide hearing. Therefore, I \ndo find by the preponderance of the evidence that Claimant has failed to prosecute her claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based on the Findings of Fact and Conclusions of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n \n      \n \n \n\nSANDERS H402459 \n \n 4 \n IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":5637,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402459 MAKALA SANDERS, EMPLOYEE CLAIMANT OBI HOLDING CO., EMPLOYER RESPONDENT SENTRY CASUALTY CO., CARRIER/TPA RESPONDENT OPINION FILED AUGUST 25, 2025 Hearing before Administrative Law Judge Steven Porch on July 29, 2025, in Little Rock, Pulaski County, A...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:37:58.263Z"},{"id":"full_commission-G702350-2025-08-22","awccNumber":"G702350","decisionDate":"2025-08-22","decisionYear":2025,"opinionType":"full_commission","claimantName":"Formerly-Cooney Heitman","employerName":"Arkansas Department Of Correction","title":"HEITMAN (FORMERLY COONEY) VS. ARKANSAS DEPARTMENT OF CORRECTION AWCC# G702350 August 22, 2025","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Heitman_Formerly-Cooney_Nancy_G702350_20250822.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Heitman_Formerly-Cooney_Nancy_G702350_20250822.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G702350  \n \nNANCY HEITMAN (FORMERLY COONEY), \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF CORRECTION, \nEMPLOYER \n \nRESPONDENT NO. 1 \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT NO. 1 \n  \n  DEATH & PERMANENT TOTAL                                  RESPONDENT NO. 2                             \n  DISABILITY TRUST FUND                                                              \n      \nOPINION FILED AUGUST 22, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE CHARLES H. \nMcLEMORE, JR., Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 was excused from participating in the proceeding. \n \n ORDER \n The claimant in the above-styled matter moves to file a belated brief.  \nThe Full Commission grants the claimant’s motion.     \nAn administrative law judge filed an amended opinion on March 21, \n2025.  The administrative law judge found that the claimant failed to prove \nshe was entitled to permanent partial disability benefits or the costs \nassociated with an impairment evaluation.  The claimant filed a timely petition \nfor review.  The Clerk of the Commission corresponded with the parties on \nMarch 21, 2025 and established an initial briefing schedule.  The claimant \nfiled a timely request for an extension, and the Clerk of the Commission \n\nHEITMAN (FORMERLY COONEY) - G702350  2\n  \n \n \nestablished a revised briefing schedule:  “Claimant’s brief will now be due \n4/18/2025.  Respondents’ brief will be due 5/2/2025.  Claimant's reply brief \nwill be due 5/9/2025.”   \nThe claimant now moves to file a belated brief.  The claimant states, \namong other things, “The deadline for the brief to be filed was inadvertently \ncalendared for incorrect date (April 25, 2025 instead of April 18, 2025....The \nundersigned respectfully requests leave to file a belated Brief in Support of \nthe Petition for Review.”   \nThe Full Commission grants the claimant’s motion to file a belated \nbrief.  See Foster v. Goodwill Industries of Arkansas, Full Commission \nOpinion filed October 17, 2024 (H204851).  We note that both parties have \nsubmitted briefs on appeal.  The Full Commission directs the Clerk of the \nCommission to issue a final briefing schedule, so that the claimant may file a \nreply brief if desired, and so that the matter may be placed on our submission \ndocket for de novo review.   \nIT IS SO ORDERED.     \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \n \n\nHEITMAN (FORMERLY COONEY) - G702350  3\n  \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \nI must respectfully dissent from the majority opinion finding that the \nclaimant’s Motion to File a Belated Brief should be granted.  \nThe claimant filed a timely notice of appeal to the Full Commission.  \nThe claimant’s brief was originally due on April 4, 2025, but she requested an \nextension of time to file her brief, which was granted by the Clerk’s office with \nno objection by the respondents.  As a result of the extension, the claimant’s \nbrief was due on April 18, 2025.  The claimant tendered her brief on April 25, \n2025, and was advised by the Clerk’s office it could not be accepted since it \nwas filed late.  On May 2, 2025, the claimant filed a Motion to File Belated \nBrief stating that the deadline for the brief to be filed was inadvertently \ncalendared for April 25, 2025, instead of April 18, 2025. \nOur past cases reflect when a brief is not timely filed, a motion to file a \nbelated brief must be denied.  See Webb v. Webb, Full Commission Opinion \nfiled August 8, 2011 (F907467); Garth v. Wal-Mart Associates, Inc., Full \nCommission Opinion filed December 17, 2009 (F803409); Hickey v. \nGardisser Constr., Full Commission Opinion filed January 13, 2008 (F609988 \n& F612976). \nIn a 2009 case before the Full Commission, we considered this exact \nissue, ultimately denying the claimant’s motion to file a belated brief: \n\nHEITMAN (FORMERLY COONEY) - G702350  4\n  \n \n \nThe Claimant’s brief will be due October 16, \n2009.  The Claimant did not file a brief until \nOctober 22, 2009.  The claimant moves to file a \nbelated brief and states in part, \"The Claimant's \nBrief was filed 6 days late due to the error of \nClaimant's counsel in misreading the September \n10, 2009 letter from the Commission. \" Because \nthe claimant's motion was untimely filed, we find \nthat it must be denied.  See Franklin v. Cross \nCounty Judge, Workers' Compensation \nCommission F810601 (July 31, 2009). \n \nPetty v. Telling Industries, Inc., Full Commission Opinion Filed December 7, \n2009 (F812228).  \nA review of the Full Commission opinions in the past reveals the vast \nmajority of motions to file belated briefs have been granted because there \nwas no objection by the opposing party.  In the case before us, the \nrespondent has filed an objection.   \nIn the very few cases where a motion to file a belated brief has been \ngranted with an objection filed by the opposing party, there has been a \ncompelling reason or good cause to grant the motion.  See Darrell Barton v. \nArkansas State University, Full Commission Opinion filed May 28, 2010 \n(F705259) and Sara J. Mickey v. Arkansas Methodist Hospital, Full \nCommission Opinion filed August 21, 2002 (F002633). \n In Monica Condrey v. Cedar America, Full Commission Opinion filed \nAugust 1, 2001 (E914507), the claimant filed a motion to file a belated brief \nattributing the late filing of the brief due to his business travel schedule.  Even \nthough it is not noted that the respondents objected to the motion, the Full \n\nHEITMAN (FORMERLY COONEY) - G702350  5\n  \n \n \nCommission, on its own, denied the motion stating, “In our opinion this does \nnot justify an extension.”  \n The Full Commission stated in John Kinkade v. Tri County Ranch & \nFarm Supply, Full Commission Opinion filed October 7, 2013 (G007478), \n“Counsel for claimant acknowledges that his brief was not timely filed ‘due to \na simple mistake caused by a busy schedule’... After our consideration of the \nClaimant’s motion, Respondents’ response thereto, and all other matters \nproperly before the Commission, we find that the Claimant’s Motion to file a \nbelated brief must be and hereby is, denied. \nHere, the majority relies on Foster v. Goodwill Industries of Arkansas \nto grant the claimant’s motion, Full Commission Opinion filed October 17, \n2024 (H204851).  However, our ruling in Foster was based on an internal \nerror within the Commission wherein the Clerk’s office failed to serve the \nbriefing schedule on the respondent’s attorney.  See Id.  In the present case, \nthe claimant’s attorney simply erred in properly entering the briefing schedule \ninto his personal calendar.  There is no correlation between this issue and the \nfacts in Foster. \nOur precedent is clear that an untimely filed motion to file a belated \nbrief should be denied, especially when the opposing party has objected, \nunless under extraordinary circumstances or for good cause shown.  There \nare no extraordinary circumstances in this matter.   \n\nHEITMAN (FORMERLY COONEY) - G702350  6\n  \n \n \nTo grant this motion when the opposing party has objected would \nrepresent the first time the Full Commission has granted a motion to file a \nbelated brief where the attorney requesting the motion offers no compelling \nreason or good cause for the late filing, simply stating his brief was not timely \nfiled because of his own clerical error.  Therefore, the claimant’s motion \nshould be denied. \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":7925,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G702350 NANCY HEITMAN (FORMERLY COONEY), EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTION, EMPLOYER RESPONDENT NO. 1 PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL RESPONDENT NO. 2","outcome":"denied","outcomeKeywords":["granted:3","denied:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.080Z"},{"id":"alj-H407634-2025-08-22","awccNumber":"H407634","decisionDate":"2025-08-22","decisionYear":2025,"opinionType":"alj","claimantName":"Casey Church","employerName":"Tyson Poultry, Inc","title":"CHURCH VS. TYSON POULTRY, INC. AWCC# H407634 August 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CHURCH_CASEY_H407634_20250822.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CHURCH_CASEY_H407634_20250822.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H407634 \n \n \nCASEY L. CHURCH,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nTYSON POULTRY, INC.,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nTYSON POULTRY, INC./ \nTYNET CORP. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED AUGUST 22, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Thursday, August 21, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Arkadelphia, \nClark County, Arkansas. \n \nThe claimant, Ms. Casey L. Church, pro se, failed and/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Melissa Wood, Worley, Wood & Parrish, \nP.A., Little Rock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Thursday, August 21, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and 11 C.A.R. Section 25-110(d) (Code of AR Regulations 2025) (formerly cited \nas Commission Rule  099.13 (2025 Lexis Replacement)). The  claimant herein was  initially \nrepresented by counsel, the Honorable Gregory L. Giles of Texarkana, Arkansas. By order filed \nMay 29, 2025, the Full Commission granted Mr. Giles’s letter motion to be relieved as the \nclaimant’s attorney of record. (Respondents’ Exhibit 1 at 5).  \n\nCasey L. Church, AWCC No. H407634 \n2 \n \n         The respondents filed a motion to dismiss this claim without prejudice for lack of prosecution \n(MTD)  on  June 9,  2025. (RX1  at 6-8). In  accordance  with  the  applicable  law  the  claimant was \nprovided due and legal notice of both the respondents’ MTD as well as the date, time, and place \nof the subject hearing, which she received on June 20, 2025. (Commission Exhibit 1). Thereafter, \nthe claimant failed and/or refused to respond to the respondents’ motion in any way, or to appear \nat the subject hearing. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute her claim or to request a \nhearing in the last six (6) months. \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of both the respondents’ MTD without prejudice \nfiled with  the  Commission  on June 9,  2025, as  well  as due  and  legal notice  of the date, \n\nCasey L. Church, AWCC No. H407634 \n3 \n \ntime, and place of the subject hearing, the claimant failed and/or refused to respond to the \nMTD in any way and failed and/or refused to appear at the subject hearing. \n \n3. The claimant has not requested a hearing within the last six (6) months and has taken no \nsteps to raise any issues related to or to prosecute this claim.  \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwithout prejudice filed June 9, 2025, should be and hereby is GRANTED; and this claim \nis dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. \nCode  Ann. Section  11-9-702(a)  and  (b) and 11  C.A.R.  25-110(d)  (formerly  cited  as \nCommission Rule 099.13). \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n                                                                                \n \n\nCasey L. Church, AWCC No. H407634 \n4","textLength":5395,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H407634 CASEY L. CHURCH, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYSON POULTRY, INC./ TYNET CORP. CARRIER/TPA RESPONDENT OPINION FILED AUGUST 22, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:54.119Z"},{"id":"alj-H404559-2025-08-22","awccNumber":"H404559","decisionDate":"2025-08-22","decisionYear":2025,"opinionType":"alj","claimantName":"Ronny Rangel","employerName":"S N S Erectors Inc","title":"RANGEL VS. S N S ERECTORS INC. AWCC# H404559 August 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RANGEL_RONNY_H404559_20250822.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RANGEL_RONNY_H404559_20250822.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H404559 \nRONNY L. RANGEL, EMPLOYEE CLAIMANT \n \nS N S ERECTORS INC., EMPLOYER RESPONDENT \n \nTRAVELERS PROPERTY CASUALTY CO. OF AMERICA, CARRIER/TPA RESPONDENT \n \n \n OPINION FILED AUGUST 22, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney,  Fayetteville, Arkansas. \n \nRespondents represented by AMY C. MARKHAM, Attorney,  Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  June 2, 2025, the above captioned claim came on for a hearing at Springdale, Arkansas. A \npre-hearing  conference  was conducted  on May  15,  2025, and  a  pre-hearing order  was  filed  on  that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1  The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n2  The employee/employer/carrier relationship existed on May 22, 2024. \n3  The compensation rates are $699.00 for temporary total disability and $525.00 for  \npermanent partial disability.  \nAt the hearing, the parties also stipulated that claimant sustained a compensable injury on May \n 22, 2024.    \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \n\nRangel-H404559 \n2 \n \n \nwere limited to the following: \n1 Whether  claimant  is  entitled  to  temporary  total  disability  benefits  from  May  31,  2024, \nthrough August 23, 2024. \n2  Whether claimant is entitled to a permanent partial disability rating above the 10% rating    \naccepted by respondent for his left knee injury.  \n3  Attorney fees on all indemnity payments. \nAll other issues are reserved by the parties. \nThe claimant contends that “The claimant, Ronny Rangel, sustained a compensable injury to \nhis  left  knee  on  May  22,  2024,  while  working  for  SNS  Erectors,  Inc.,  in  Nashville,  Arkansas. This \nmatter was controverted in its entirety by the respondents. Below is a timeline of events:  \na. The claimant filed an AR-C on July 19, 2024; \nb. The  respondents  filed  an  AR-2 on July 22, 2024, controverting stating “No injury per \nstatutory definition;” \nc. Claimant’s counsel requested a hearing on compensability – requesting medical and TTD \nbenefits on August 1, 2024; \nd. Respondents’ counsel filed her response to the pre-hearing questionnaire on September 6 \n2024, again controverting the claim.  \nThe claimant contends that he is still owed temporary total disability benefits from May 31, \n2024, through August 23, 2024. The claimant was assessed an impairment rating of 40% to the body \nas  a  whole. The  claimant  is  owed  $44,160.00  in  permanent  partial  disability  benefits. Due  to \ncontroversion of entitled benefits, the respondents are obligated to pay one half of the claimant’s \nattorney’s fees. This includes all indemnity paid after controversion on July 22, 2024. Claimant reserves \nthe right to raise additional contentions at the hearing of this matter.” \n\nRangel-H404559 \n3 \n \n \nThe  respondents  contend  that “Claimant  declined  medical  treatment  on  May 22,  2024. \nClaimant worked until May 31, 2024, which was the last day of the project and everyone working on \nthat project was laid off. Claimant did not seek medical treatment until June 27, 2024, when he was \nplaced on modified duty. The claim was accepted for a grade 2 sprain of medial collateral ligament of \nthe knee, which his doctor determined to be non-surgical. Claimant was diagnosed with degeneration \nin  the  knee  unrelated  to  the  occupational  injury. Claimant  has  undergone  a  functional  capacity \nexamination, which determined claimant can perform work in the heavy classification. Appropriate \nmedical treatment has been provided to claimant; and no additional benefits are owed.”  \n           From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on May \n15, 2025, and contained in a pre-hearing order filed on that same date are hereby accepted as fact, as \nis the stipulation announced at the hearing that claimant suffered a compensable injury on May 22, \n2024. \n 2. Respondents’ motion for an independent medical examination is granted. The issue of the \ndegree  of  claimant’s  permanent  partial  impairment  rating  is reserved until  the  results  of  the \nindependent medical examination is provided to the Court.  \n3. Claimant has met his burden of proving he is entitled to temporary total disability from June \n28,  2024,  through August  23,  2024. Claimant  did  not  meet  his  burden  of  proving  entitlement  to \ntemporary total disability benefits from May 31, 2024 through June 27, 2024.  \n\nRangel-H404559 \n4 \n \n \n4. Claimant's attorney is entitled to an attorney fee on temporary total disability benefits and \npermanent partial disability payments previously paid to claimant, on unpaid benefits awarded herein, \nand on future indemnity benefits, if any.  \n FACTUAL BACKGROUND \n On May  30, 2025,  respondents  requested  an  independent  medical  examination (IME) be \nconducted. I denied that request as untimely (see the blue backed email exchange). After considering \nit  further,  respondents  were  permitted  to  make  their  motion  at  the hearing, which I  took  it  under \nadvisement. The hearing  on  the  merits  was  then  conducted,  and  the testimony  and  documentary \nevidence in the case in chief was considered in deciding respondents’ motion for an IME.  \nHEARING TESTIMONY \n \nClaimant stated on May 22, 2024, he was working for respondent SNS Erectors (herein after \nSNS) at a job site at Nashville, Arkansas. Claimant said that as he was attempting to climb onto the \nback  of  a  semi-truck,  he  stepped  on  one  of  the  rear  wheels  while  searching  for  a  hand  hold. He \nsomehow missed his footing, and his left foot and/or knee buckled, and his right foot went down and \ntouched the ground between the tires, causing his left foot to bend behind him. He pulled himself out \nof the position he was in and reported the injury to his boss. He felt excruciating pain in his knee, \ncould not walk well at all, and felt it beginning to swell. His boss asked if he wanted to go to the clinic, \nand  claimant  decided  to  simply  go  to  his  room,  ice  and  elevate  the  leg,  and  try  to  get  the swelling \ndown. Claimant returned to work the next day and was able to work a half day before returning to his \nroom. After the weekend, claimant was placed on a different job that did not require a lot of walking. \nThe job ended on scheduled on May 29, 2024, then claimant returned home.  \n Claimant’s knee continued to hurt and was swollen after returning home. He called SNS about \nseeing  a  physician, but  the  company  had  no  information  on  physicians  in  Siloam  Springs  where \n\nRangel-H404559 \n5 \n \n \nclaimant lived. He was eventually sent to Conservative Care in Springdale where he was x-rayed and \ndid physical therapy for a few weeks. He then saw Dr. Craig Murphy two more times before he was \nreferred to an orthopedist, Dr. Tyler Carllee. Claimant then learned that he had injured the MCL in \nhis left knee.  \n Claimant  said  that  he  was  given  restrictions  at  Conservative  Care  on  June  27,  2024,  that \nincluded no ladders, stairs, pushing, or pulling over fifteen pounds. He sought legal counsel because \nthe doctor had released him to light duty. The employer had no work for him, and he was not drawing \nweekly checks, so he contacted his attorney. Claimant said that if his employer had cooperated with \nhim on getting treatment for his knee he would have cooperated and would have worked at light duty \nhad it been offered.  \n After  the  AR-C  was  filed, claimant  saw  Dr.  Tyler  Carllee  at  UAMS  Orthopedics  where  he \nbegan more intense physical therapy designed to have the MCL repair itself. Claimant said that his \ntemporary total disability checks began after he saw Dr. Carllee and continued until he was released \nfrom treatment. \n Claimant was advised by his doctor not to have surgery on his left knee because he had had a \ntotal prosthetic knee replacement which claimant had undergone years earlier. Claimant stated that he \nhad no issues with his left knee for four or five years and it did not interfere with his working. \n Claimant testified that he was released from treatment at UAMS in March 2025, at which time \nhe was given a 40% impairment rating on his left lower extremity. After he was released, he began \nworking immediately. Claimant is earning more money at the jobs he has worked since his employment \nended with SNS because he is a union worker. \n Claimant requested temporary total disability benefits from May 29, 2024, when his job ended \nwith  SNS, through August  23,  2024,  when  respondents  began  paying  temporary  total  disability \n\nRangel-H404559 \n6 \n \n \nbenefits. Claimant also requested attorney’s fees on those sums because he had received no disability \nbenefits prior to retaining counsel.  \n On cross-examination, claimant explained more about his manner of work. He is a member \nof a union hall but can call other union halls to secure work. He said he was sometimes contacted by \ncontractors or business agents regarding jobs in various parts of the country. Claimant learned when \nhe started the job at SNS that it would last approximately three or four weeks barring any extraordinary \ncircumstances. He again confirmed that he declined to go to the doctor so SNS would not have lost \ntime injury on their insurance claim. Claimant recognized Respondents Exhibit B, the declination of \ntreatment that he signed on May 23, 2024, which stated: \n“I am declining medical treatment at this time. Should my condition worsen, \nor should I change my mind regarding treatment, I know I must inform my \nsupervisor immediately.” \n \n Claimant did not know if he missed any work with SNS other than going home early a couple \nof days and when the job ended, he had not been told not to work by a doctor. Claimant said he first \nsought medical treatment in mid-June, and it took a little bit of time for him to be sent to Conservative \nCare Occupational Health on June 27, 2024. Claimant said the people he dealt with at SNS was rude \nand he quit talking to them and began dealing with respondent Travelers. Claimant understood that \nhe was told by Dr. Craig Murphy at Conservative Care Occupational Health that he could work within \ncertain restrictions but understood that his physician at UAMS completely restricted him from work.  \n Claimant explained that the way he worked was dependent on his financial need. He had not \nplanned to  work during  the  summer  of  2024  but a  union  representative  asked him a  few  times  to \naccept the job with SNS, and claimant agreed to do so. He did not have an immediate plan to work \nonce the SNS position was over. Claimant understood that he had been released to heavy duty with \nrestrictions on using stairs and ladders. \n\nRangel-H404559 \n7 \n \n \nMEDICAL RECORDS REVIEW \n \n Claimant submitted 50 pages of medical records, while respondents submitted 31 pages, five \nof which duplicated claimant’s submission. These will be reviewed in chronological order. \nAs claimant testified, he was first seen at Conservative Care Occupational Health on June 27, \n2024, Dr. Craig Murphy believed claimant had suffered an MCL strain and prescribed physical therapy \nfor that as well as Naproxen, ice and heat treatment and restricted claimant’s activity to no climbing \nstairs, no lifting, no pushing or pulling over fifteen pounds.  Claimant began physical therapy on July \n8, 2024, with the stated goal of returning claimant to his previous employment without restrictions. \nHe returned  to  see  Dr.  Murphy  on  July  11,  2024,  but  there  was  no  change  in  the  diagnosis  and \nrecommended treatment. Physical therapy did not yield any improvement and on July 26, 2024, Dr. \nMurphy referred claimant to an orthopedic doctor. Claimant had three visits with Dr. Tyler Carllee \nbefore he was referred to a total joints surgeon.  \nClaimant  next saw  Dr.  Benjamin  Stronach  at  UAMS, who  referred  him  for  a  functional \ncapacity  evaluation  (FCE),  which  was  conducted  of  February 4,  2025. and in  which  he  put  forth  a \nreliable  effort. The  evaluator  stated  that  claimant put  forth  a  reliable  effort  and  based  on this \nevaluation, he was able to work in the heavy classification as far as his ability to lift and carry up to \nfifty  pounds  on  a  frequent  basis  and  an  occasional  lift  and  carry  up  to  one  hundred  pounds. The \nexaminer  noted  that  claimant  did not  demonstrate  an ability  to  kneel,  and his  crouching  should  be \ndone only occasionally. The FCE evaluator noted that when claimant was carrying heavy weights, his \nleft lower extremity limp increased and further observed a mild limp on claimant’s left lower extremity  \nwhen he was walking and gradually worsening by the end of the activity.  \nAfter some additional physical therapy, Dr. Stronach recorded on March 6, 2025:  \n“He has plateaued in regard to benefits of physical therapy. At this point  I \nwould  not recommend  any  further  intervention  for  his  left  knee. He  does \n\nRangel-H404559 \n8 \n \n \nhave some stable radiolucencies appreciated around the left knee implant with \nno  evident changes  since we  have seen  him with  multiple, serial x-rays. He \ndoes  have  continued  pain  since  his  injury. At  this  time,  I  have  not \nrecommended any surgical intervention. He may require a revision of his left \ntotal knee replacement in the future.” \n \n After  reviewing  the  results  of  the  FCE, Dr.  Stronach assigned  a  40%  lower extremity \nimpairment rating for claimant’s left knee injury.   \n Respondents submitted medical records from Dr. Stronach to Dr. Hilary Alpert at CareReview \nin  Arlington,  Texas. Dr.  Alpert  did  not  examine  claimant,  but  from  her  review  of  the  records,  she \nbelieved claimant should be assessed a 10% permanent impairment rating for his left knee injury.  \nNON-MEDICAL RECORD REVIEW \n Claimant submitted thirteen pages of non-medical exhibits which outlined the history of this \nmatter from July 16, 2024, through September 6, 2024. These records demonstrate that after claimant \nretained counsel and filed his AR-C Form on July 19, 2024, the employer denied that there was an \ninjury  as  per  the  statutory  definition  of  that  term. Further, respondents’ prehearing questionnaire \nresponse as of September 6, 2024, stated that an issue to be litigated was “compensability of an alleged \ninjury to the left knee.” \n Respondents’ non-medical documentary evidence consisted of four pages, which included the \ndeclination of treatment form claimant signed on May 23, 2024, and the physician’s report from Dr. \nMurphy following the claimant’s first visit with him in which claimant was released to return to work \nwith the restrictions of “No climbing stairs, no lifting, pushing pulling over fifteen pounds.”   \n \nADJUDICATION \n \nAddressing  first  the  motion  by  respondents  for  an  IME, the  question  is  whether  an \nindependent medical examination is reasonable and necessary in this matter. \nArkansas Code Annotated section 11-9-511(a) provides, in relevant part: \n\nRangel-H404559 \n9 \n \n \nAn injured employee claiming to be entitled to compensation shall submit to \nsuch physical examination and treatment by another qualified physician, \ndesignated or approved by the Workers' Compensation Commission, as the \nCommission may require from time to time if reasonable and necessary. The \nthreshold question is whether the examination is reasonable and necessary. \n(Emphasis added.) \n \n11 C.A.R § 25-125 (formerly Rule 30 of the Arkansas Workers' Compensation Commission) \nprovides: \nAn independent medical examination shall include a study of previous history  \nand MedicalCare information, diagnostic studies, diagnostic x-rays, and laboratory  \nstudies, as well as an examination and evaluation. This service may be necessary in \norder to make a judgment regarding the current status of the injured or ill \nworker, or to determine the need for further health care. (Emphasis added.) \n \nWhen  viewing  the  medical  evidence  considering  the  standards  set  forth  above,  I  believe \nrespondents  have  shown  that  an  IME  is  reasonable  and  that  it  would  be  necessary  to  make  an \ninformed judgment in this case about the degree of claimant's permanent partial impairment rating \nfor  his compensable  injury. The  opinions  from Dr. Stronach  and  Dr.  Alpert on  the  degree  of \npermanent  impairment  claimant  has  suffered  to  his  left  knee are very  different. I recognize  that  a \nconflict in the opinions of the doctors is no reason, in and of itself, to order a \"tiebreaker\" IME. The \nCommission has authority to accept or reject medical opinion and to determine its medical soundness \nand  probative  force. Oak  Grove  Lumber  Co.  v.  Highfill,  62  Ark.  App.  42,  968 S.W.2d  637  (1998). \nHowever, because claimant had a left knee replacement many years before this injury, and since I do \nnot see  that  Dr.  Stronach  took  that  into  consideration  in  his  assessment  of  a  40% permanent \nimpairment rating for claimant’s injury, I find the request by respondents for an IME to be reasonable \nand  necessary  for  me  to make  a  fair  determination of the degree of claimant’s permanent partial \nimpairment,  and  I  grant  its  motion  for  an  IME.  Therefore, the issue regarding claimant’s PPD is \nreserved pending the receipt of the report from the physician conducting the IME. This matter will \nbe referred to the Medical Cost Containment Division of the Commission to select that physician. \n\nRangel-H404559 \n10 \n \n \nThere are two components to this claim that are not dependent upon the results of the IME. \nClaimant  seeks  TTD  benefits  from  May 31,  2024,  the  date  after  he  last  worked  for  SNS, through \nAugust 23, 2024, which is when the insurance carrier for SNS agreed to start paying TTD benefits. \nClaimant also requests attorney’s fees on all indemnity  benefits  that  have  been  paid  and  those  that \nmay be awarded.  \n The  parties  have  stipulated  that  a  compensable  injury  occurred  on  May 22,  2024. While \nclaimant  did  not  receive  any  medical  treatment  for  the  injury  until  June  27,  2024,  I  believe  his \ntestimony that the injury noted at the first visit to a medical provider was the one he suffered on May \n22,  2024. However,  claimant  continued  to  work  at  a  modified  position until  that job  was  finished. \nClaimant candidly said he was not planning to work during the summer of 2024; as he put it “I let my \nbank account decide when I need to go to work” (T.46). However, he also said that his finances were \nrunning low when he retained the services of his attorney (T.50). Accepting both statements as true, \nI conclude claimant would not have been working before his financial situation mandated it, and deny \nhis claim for TTD from May 31, 2024, through June 27, 2024.  \n It is my opinion that claimant sought medical treatment when he became interested in working \nagain. When  he  was  given  the  physical  limitations noted  above  by  Dr.  Murphy, I  believe claimant \nrealized he  was  about  to  be  in a financial  bind due to those restrictions which would  limit  his \nemployment options. He testified that he talked to representatives of respondent Travelers but was \nunable to secure temporary disability payments until after he hired counsel. As such, I am awarding \nclaimant TTD from June 28, 2024, through August 23, 2024, the date respondents began paying TTD \nbenefits.  \n As to the claim for an award of an attorney’s fee, the decision to deny indemnity benefits for \nclaimant’s knee injury was made before claimant hired an attorney, as witnessed by the AR-2 form \n\nRangel-H404559 \n11 \n \n \nfiled on July 22, 2024, three days after claimant’s AR-C (CL.NMX.2-3), and continued through the \nfiling of respondent’s pre-hearing questionnaire response on September 6, 2024.  I find Cleek v. Great \nSouthern Metals, 335 Ark. 342, 981 S.W.2d 529 (1998) and Lee v. Alcoa Extrusion, Inc., 9 Ark. App. 228, \n201 S.W.3d 449 (2005) govern this matter; from reading these cases (and others), I believe it is the \ndenial of a claim before counsel is employed that is most relevant in determining if an attorney's fee is \nappropriate;  it  seems  even  more  appropriate  when  the  claim  continued  to  be  denied  after claimant \nretained his attorney. \"One of the purposes of the attorney's fee statute is to put the economic burden \nof litigation on the party who makes litigation necessary,\" Lee, supra. It was respondent's initial denial \nthat made the litigation necessary, and thus an award of an attorney's fee to claimant's counsel on all \nindemnity payments is appropriate under the facts of this case. \nORDER \n \n Respondents are directed to pay benefits in accordance with the findings of fact set forth  \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one half by the carrier and one \nhalf by the claimant. \nThe respondent shall pay the court reporter's fee in the amount of $625.00 \nAll issues not addressed herein are expressly reserved under the Act. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":22383,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404559 RONNY L. RANGEL, EMPLOYEE CLAIMANT S N S ERECTORS INC., EMPLOYER RESPONDENT TRAVELERS PROPERTY CASUALTY CO. OF AMERICA, CARRIER/TPA RESPONDENT OPINION FILED AUGUST 22, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washin...","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":["knee","sprain","back","strain"],"fetchedAt":"2026-05-19T22:37:56.193Z"},{"id":"alj-H302598-2025-08-21","awccNumber":"H302598","decisionDate":"2025-08-21","decisionYear":2025,"opinionType":"alj","claimantName":"Trummonique Shabazz","employerName":"Adecco USA, Inc","title":"SHABAZZ VS. ADECCO USA, INC. AWCC# H302598 August 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SHABAZZ_TRUMMONIQUE_H302598_20250821.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHABAZZ_TRUMMONIQUE_H302598_20250821.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H302598 \n \nTRUMMONIQUE SHABAZZ, EMPLOYEE       CLAIMANT \n \nADECCO USA, INC., EMPLOYER                        RESPONDENT \n \nAIU INSURANCE CO./SEDGWICK CLAIMS MANAGEMENT, \nCARRIER/TPA                    RESPONDENT \n  \n \n \nOPINION FILED 21 AUGUST 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 18 June 2025 in Little Rock, Arkansas. \n \nThe pro se claimant failed to appear. \n \nAnderson Murphy Hopkins, LLP, Mr. Randy Murphy, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 18 June 2025. This case relates to an alleged workplace injury occurring \non 12 April 2023. The record of the hearing consists of the transcript; Respondents’ Exhibit \nNo 1, which consisted of nine pages of documents and pleadings in support of their motion; \nCommission’s Exhibit No 1, six pages of correspondence and an Order on a request to \nwithdraw filed by the claimant’s previous counsel; and Commission’s Exhibit No 2, a Form \nAR-C filed on 14 May 2024 and three delivery receipts from Commission correspondence \nwith the claimant. Also, I am blue-backing to this opinion the hearing notice sent to the \nclaimant on 7 May 2025. In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, \n2010 Ark. App. LEXIS 549, that document is being served on the parties in conjunction \nwith this opinion. \n\nT. SHABAZZ- H302598 \n2 \n \nOn 9 May 2023, the claimant, though then-counsel, filed an initial Form AR-C. A \nsecond Form AR-C was filed on 14 May 2024. Claimant’s counsel requested leave to \nwithdraw as counsel on 3 February 2025. The claimant objected to the same in a letter \ndated 8 February 2025. Counsel responded to the claimant’s objection in a letter dated 25 \nFebruary 2025. In an Order dated 25 March 2025, I granted Counsel’s request to withdraw \nher representation from this matter.  \nThe respondents then requested that this claim be dismissed under Commission \nRule 099.13 (now codified at 11 C.A.R. § 25-110(d)) and/or A.C.A. § 11-9-702. They note that \nthe claimant had not requested a hearing on an issue ripe for litigation.  \n Notice of the respondents’ motion was sent to the address provided by the claimant \nin the letter objecting to the withdrawal. Consistent with Commission practices, notices \nwere sent via First Class Mail and Certified Mail. Notice of the hearing on the respondents \nwas sent in the same manner. Receipt of the 7 May 2025 hearing notice letter was \nconfirmed by the claimant’s signature on 9 May 2025. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim is dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \n \n \n \n \n\nT. SHABAZZ- H302598 \n3 \n \nDISCUSSION \nThe respondents appeared on 18 June 2025 and presented their motion. As argued \nby the respondents at the hearing, Commission Rule 099.13 (now 11 C.A.R. § 25-110(d)) \nprovides for a dismissal for failure to prosecute an action upon application by either party \nand reasonable notice. The claimant did not file a response to the motion or appear at the \nhearing to argue against the dismissal of his claim.  \nNearly two years after filing his initial Form AR-C, Claimant’s counsel requested \nleave to withdraw, noting that she had discussed the matter with the claimant in advance \nof her request. The last action taken on behalf of the claimant appears to be his letter \nresponding to her withdrawal request. The claimant stated that he was “conflicted by this \nrequest.” He also stated that he “would be satisfied if the council (sic) would continue until \nthe case is concluded.” Counsel filed a response and noted that no additional benefits \nappeared to be available to the claimant. I later granted the request to end the attorney-\nclient relationship in this matter. No filings have been made by the claimant since the \nentry of that Order. \nThe claimant did not appear to object to the dismissal of his claim. The record does \nnot reflect a request for a hearing. A dismissal without prejudice is, therefore, appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4864,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H302598 TRUMMONIQUE SHABAZZ, EMPLOYEE CLAIMANT ADECCO USA, INC., EMPLOYER RESPONDENT AIU INSURANCE CO./SEDGWICK CLAIMS MANAGEMENT, CARRIER/TPA RESPONDENT OPINION FILED 21 AUGUST 2025 Heard before Arkansas Workers’ Compensation Commission (“the Commission...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:52.051Z"},{"id":"alj-H405026-2025-08-20","awccNumber":"H405026","decisionDate":"2025-08-20","decisionYear":2025,"opinionType":"alj","claimantName":"Maurice Brooks","employerName":"Ax’em Timber Services","title":"BROOKS VS. AX’EM TIMBER SERVICES AWCC# H405026 August 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BROOKS_MAURICE_H405026_20250820.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BROOKS_MAURICE_H405026_20250820.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H405026 \n \nMAURICE BROOKS, EMPLOYEE         CLAIMANT \n \nAX’EM TIMBER SERVICES, EMPLOYER                       RESPONDENT No 1 \n \nTECHNOLOGY INSURANCE/AMTRUST, \nCARRIER/TPA                 RESPONDENT No 1 \n \nWILLIAMS LOGGING, LLC, EMPLOYER             RESPONDENT No 2 \n \nAMERICAN INTERSTATE INS. CO./ \nAMERISAFE RISK SERVICES, CARRIER/TPA            RESPONDENT No 2 \n  \n \n \nOPINION FILED 20 AUGUST 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 3 July 2025 in Pine Bluff, Arkansas. \n \nThe pro se claimant failed to appear. \n \nThe Frye Law Firm, Mr. Bill Frye, appeared for Respondent No 1. \n \nThe Ryburn Law Firm, Mr. Zach Ryburn, appeared for Respondent No 2. \n \nSTATEMENT OF THE CASE \n \n This case relates to an alleged workplace injury occurring on 3 July 2024. A hearing \non the respondents’ Motion to Dismiss was held on this matter in Pine Bluff, Arkansas, on 3 \nJuly 2025. The record from the hearing consists of the hearing transcript, Respondents No \n1’s Exhibit No 1 (a Form AR-C filed on 6 August 2024 and a Form AR-2 dated 21 August \n2024), and Commission’s Exhibit No 1 (a Form AR-C filed on 26 August 2024 and mailing \nreceipts from Commission correspondence with the claimant). I am also blue-backing to this \nopinion (1) a copy of a Full Commission Order dated 30 October 2024 that grants a request \nof withdrawal for the claimant’s counsel, (2) Respondent No 2’s Motion to Dismiss, (3) an \n\nM. BROOKS- H405026 \n2 \n \nemail from Respondent No 1 joining in the request for a dismissal, and (4) a letter to the \nclaimant providing notice of the Motion to Dismiss. In accordance with Sapp v. Tyson \nFoods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, those documents are being \nserved on the parties in conjunction with this opinion. \nThe claimant was originally represented by counsel in this matter. On 30 October \n2024, as noted above, the Full Commission granted a request by the claimant’s counsel to \nwithdraw from the case. Then, on 27 February 2025, Respondent No 2 moved for a \ndismissal. They stated that the claim had initially been denied in its entirety and that the \nclaimant had since failed to prosecute his claim or request a hearing. The following day, \nRespondent No 1 joined in the request for a dismissal.  \nNotice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail, on 3 March 2025. A proof of \ndelivery receipt shows that the claimant received that letter on 10 March 2025. He did not \nfile an objection to the motion or otherwise respond to that notice letter. A hearing on the \nmotion was then set, with notice to the claimant sent in the same manner. He failed to \nappear at the hearing to argue against a dismissal of the claim. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on that motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110(d)). \n \n4. A dismissal of the claim without prejudice is appropriate. \n \n \n\nM. BROOKS- H405026 \n3 \n \nDISCUSSION \nThe respondents appeared on 3 July 2025 and argued in favor of a dismissal without \nprejudice. The record does not reflect any effort by the claimant to prosecute his claim since \nthe withdrawal of his counsel. The claimant has not requested a hearing on any issue ripe \nfor litigation. And the respondent failed to appear to argue against the dismissal of his \nclaim. The respondents’ motion to dismiss this claim for initial benefits is granted. The \ndismissal is without prejudice. \nORDER \n The Motion to Dismiss is hereby granted. This claim is DISMISSED WITHOUT \nPREJUDICE.  \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4220,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H405026 MAURICE BROOKS, EMPLOYEE CLAIMANT AX’EM TIMBER SERVICES, EMPLOYER RESPONDENT No 1 TECHNOLOGY INSURANCE/AMTRUST, CARRIER/TPA RESPONDENT No 1 WILLIAMS LOGGING, LLC, EMPLOYER RESPONDENT No 2 AMERICAN INTERSTATE INS. CO./ AMERISAFE RISK SERVICES, CAR...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:43.660Z"},{"id":"alj-H004961-2025-08-20","awccNumber":"H004961","decisionDate":"2025-08-20","decisionYear":2025,"opinionType":"alj","claimantName":"Johnny Coburn","employerName":"Arkansas Steel Assoc., LLC","title":"COBURN VS. ARKANSAS STEEL ASSOC., LLC AWCC# H004961 & H102650August 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Coburn_Johnny_H102650_20250820.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Coburn_Johnny_H102650_20250820.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NOS. H004961 & H102650 \n \n \nJOHNNY COBURN, EMPLOYEE CLAIMANT \n \nARKANSAS STEEL ASSOC., LLC \n EMPLOYER RESPONDENT \n \nPHOENIX INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 20, 2025 \n \nHearing  before Chief Administrative  Law  Judge  O.  Milton  Fine  II  on July 24, \n2024, in Little Rock, Pulaski County, Arkansas. \n \nClaimant represented   by   Ms. April   K.   Rogers,   Attorney   at   Law, Conway, \nArkansas. \n \nRespondents represented by Ms. Amy C. Markham, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n On  July  24,  2025,  the  above-captioned  claims  were  heard  in  Little  Rock, \nArkansas.    A  prehearing  conference  took  place  on  March  31,  2025.    The \nPrehearing  Order  entered  that  same  day  pursuant  to  the  conference  was \nadmitted without objection as Commission Exhibit 1.  At the hearing, the parties \nconfirmed that the stipulations, issues, and respective contentions, as amended, \nwere properly set forth in the order. \nStipulations \n The  parties  discussed  the  stipulations  set  forth  in  Commission  Exhibit  1.  \nFollowing  an  amendment  of  Stipulation  No. 3 at  the  hearing,  they  are  the \nfollowing, which I accept: \n\nCOBURN – H004961 & H102650 \n \n2 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover these claims. \n2. The   employee/employer/carrier   relationship   existed   among   the \nparties on June 29, 2020, and on October 7, 2020. \n3. Respondents  accepted as  compensable a  neck  strain  and  a  right \nshoulder  injury  as  a  result  of  the  alleged  June  29,  2020,  incident \n(Claim No. H004961), and have paid benefits pursuant thereto. \n4. Respondents have controverted Claim No. H102650 in its entirety. \nIssues \n Per the Prehearing Order, the following issues were to have been litigated \nat the hearing: \n1. Whether  Claim  No.  H102650  should  be  dismissed  for  want  of \nprosecution  pursuant  to  AWCC  R.  099.13 (now  codified  at  11 \nC.A.R. § 25-110(d)). \n2. Whether  Claimant sustained  compensable  injuries  to  his  neck, \nback, and right shoulder as a result of specific incident on or about \nJune 29, 2020 (Claim No. H004961). \n3. Whether  Claimant  sustained  compensable  injuries  to  his  neck, \nback,  and  right  shoulder  as  a  result  of  a  specific  incident  on  or \nabout   October   7,   2020,   that   were   either   (a)   a   compensable \naggravation  or  (b)  a  recurrence  of  his  alleged  June  29,  2020, \ninjuries (Claim No. H102650). \n\nCOBURN – H004961 & H102650 \n \n3 \n4. Whether Claimant is entitled to reasonable and necessary medical \ntreatment (H004961 & H102650). \nAll  other  issues  have  been  reserved.    However,  following  a  conference  of  the \nparties  that  took  place  prior  to  the  commencement  of  the  hearing  but  was \nmemorialized in the record, Issues Nos. 2-4 were reserved.  This left as the sole \nissue whether H102660 should be dismissed for want of prosecution. \nContentions \n In  light  of  the  substantial  narrowing  of  the  issues  at  the  hearing,  the \ncontentions  of  the  parties  as  set  forth  in  the  Prehearing  Order  (incorporated \ntherein by reference from their prehearing responses) are largely moot.  They are \nnonetheless listed here: \nClaimant \n1. Claimant  contends  that  he  worked  for  Respondent  employer  and \nsuffered  a  specific-incident  injury  on  June  29,  2020,  in  the  course \nand  scope  of  his  employment;  and  he  suffered  compensable \ninjuries to his neck, pain across both shoulders, mainly affecting his \nright shoulder, when a heavy metal grate fell on him. \n2. Claimant further contends that Respondents are responsible for the \nemergency   room   visit   on   October   7,   2020,   as   either   a   new \ncompensable  injury  or  a  flare-up  of  his  injury  from  June  29,  2020, \nincluding his mid-back (thorax) problems. \n\nCOBURN – H004961 & H102650 \n \n4 \nRespondents \n1. Claimant sustained an injury to his neck and right shoulder on June \n29,  2020,  when  a  metal  grate  struck  him.    All  appropriate  benefits \nhave been paid. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including   medical   reports, \ndocuments,  and other matters  properly before  the  Commission,  and  having  had \nan opportunity to hear the testimony of Claimant and to observe his demeanor, I \nhereby make the following findings of fact and conclusions of law in accordance \nwith Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the July 24, \n2024, hearing thereon pursuant to 11 C.A.R. § 25-110(d). \n3. Respondents have proven by a preponderance of the evidence that \nClaimant  has  failed  to  prosecute  Claim  No.  H102650  under  11 \nC.A.R. § 25-110(d). \n4. Respondents’ Motion to Dismiss should be, and hereby is, granted. \n5. Claim No. H102650 is hereby dismissed with prejudice. \n6. All issues pertaining to Claim No. H004961 have been reserved. \n\nCOBURN – H004961 & H102650 \n \n5 \nCASE IN CHIEF \nSummary of Evidence \n The sole witnesses at the hearing was Claimant. \n In addition to the Prehearing Order discussed above, the exhibits admitted \ninto evidence in this case were Claimant’s Exhibit 1, a compilation of his medical \nrecords,  consisting  of four index  pages and 118 numbered  pages  thereafter; \nClaimant’s  Exhibit  2,  non-medical  records,  consisting  of  one  index  page  and \nseven  numbered  pages  thereafter; Respondents’ Exhibit 1, another compilation \nof  Claimant’s  medical  records,  consisting  of two index   pages and three \nnumbered pages thereafter; and Respondents’ Exhibit 2, non-medical  records, \nconsisting of two index pages and two numbered pages thereafter. \n Also,  in  order  to  address  adequately  this  matter  under  Ark.  Code  Ann. § \n11-9-705(a)(1)  (Repl.  2012)(Commission  must  “conduct  the  hearing  .  .  .  in  a \nmanner which best ascertains the rights of the parties”), and without objection, I \nhave  blue-backed  to  the  record  forms,  pleadings,  and  correspondence  from  the \nCommission’s file on the claim, totaling 72 pages.    In  accordance  with Sapp  v. \nTyson  Foods,  Inc.,  2010  Ark.  App.  517,  2010  Ark.  App.  LEXIS 549,  these \ndocuments have been served on the parties in conjunction with this opinion. \nEvidence \n With  respect  to  Claim  No.  H102650,  the  evidence  reflects  that on March \n16, 2021, Claimant through then-counsel Steven R. McNeely filed a Form AR-C, \nalleging that he was entitled to benefits for an injury to his back that he allegedly \n\nCOBURN – H004961 & H102650 \n \n6 \nsustained  at  work  on October  7,  2020,  when he  strained  his  mid-back  while \nprying  on  a  metal  plate.    He  added  that this constituted an “aggravation of his \n6/29/2020 larger injury” [i.e., Claim No. H004961].”  Respondents  submitted  a \nForm AR-2 in response on March 18, 2021, informing the Commission that they \nwere controverting the claim.  Respondents’ counsel entered her appearance on \nMarch 30, 2021. \n McNeely  requested  a  hearing  on  both  H004961  and  H102650  on  March \n20, 2023.  Accompanying the request was a prehearing questionnaire response.  \nRespondents   submitted   their   response   on   May   2,   2023.      A   prehearing \nconference on both claims was scheduled for August 14, 2023.  Pursuant to that \nconference,  a  hearing  was  scheduled  for  October  26,  2023,  on  the  following \nissues: \n1. Whether  Claimant sustained  compensable  injuries  to  his  neck, \nback, and right shoulder as a result of specific incident on or about \nJune 29, 2020 (H004961). \n2. Whether  Claimant  sustained  compensable  injuries  to  his  neck, \nback,  and  right  shoulder  as  a  result  of  a  specific  incident  on  or \nabout   October   7,   2020,   that   were   either   (a)   a   compensable \naggravation  or  (b)  a  recurrence  of  his  alleged  June  29,  2020, \ninjuries (H102650). \n3. Whether Claimant is entitled to reasonable and necessary medical \ntreatment (H004961 & H102650). \n\nCOBURN – H004961 & H102650 \n \n7 \nAll other issues were reserved. \n On  September  21,  2023,  McNeely  wrote  an  email  to  me  that  requested \nthat the hearing be canceled.  He stated:  “Your Honor we have most of the \nissues resolved.”  Based on this request, and with no objection by Respondents, \nthe  hearing  was  cancelled; and both  claims were returned to the Commission’s \ngeneral files. \n Nothing further took place on Claim No. H102650 until February 2, 2024.  \nOn that date, Respondents filed a Motion to Dismiss under AWCC R. 099.13 and \nArk.  Code  Ann. §  11-9-702(a)(4)  (Repl. 2012).   In  support  of  their  motion, \nRespondents alleged that no hearing had yet taken place on the claim, and that \nno bona fide hearing request had been made in the previous six months.  The file \nwas reassigned to me on February 2, 2024; and that same date, my office wrote \nClaimant  and  McNeely,  requesting  a  response  to  the  motion  within  20  days.  \nMcNeely responded via email on February 9, 2024, stating:  “Your Honor the \nclaimant objects to their motion to dismiss and request[s] a hearing.  The issues \nare  fully  laid  out  in  the  attached  PHQ  [prehearing  questionnaire response].  \nBased  on  this,  I  informed  the  parties  that  I  would  take  the Motion  to  Dismiss \nunder  advisement  and  proceed  to  a  hearing  on  the  merits.    Respondents  filed \ntheir  prehearing  response  on  March  27,  2024.    A  prehearing  conference  was \nscheduled for May 6, 2024.  But on May 2, 2024, McNeely wrote me: \n\nCOBURN – H004961 & H102650 \n \n8 \nYour Honor: \n \nThe    claimant    respectfully    withdraws    his    objection    to    the \nRespondents[‘]  Motion  to  [D]ismiss  and  withdraws  his  hearing \nrequest,   concerning   H102650   DOI   10/7/2020,   based   on   the \nattached email. \n \nI do not believe there is a need for the phone conference Monday.  \nMy understanding is when the parties are in agreement we can fill \nout interrogatories and submit those to have [this] claim dismissed. \n \nIn  response  to  McNeely’s  follow-up  email  conveying  the  same  information,  I \nresponded to the parties on May 2, 2024: \nBased on this, my office will send out interrogatories for Claimant to \nanswer  to  confirm  that  he  has  no  objection  to  [the]  dismissal  of \nH102650. \n \nIf these are not returned in 30 days, my office will simply schedule a \nhearing on the motion to dismiss in Little Rock. \n \nAs for H004961, there is no motion to dismiss pending.  Based on \nClaimant’s withdrawal of his hearing request, I am returning the file \nto the Commission’s general files. \n \n My  office  sent  the  aforementioned  interrogatories  to  McNeely  on  May  2, \n2024.    Because  they  were  not  received  within  the  30-day  deadline,  my  office \nemailed the parties to schedule a hearing on the Motion to Dismiss.  But on June \n12, 2024, McNeely moved to withdraw from his representation of Claimant.  His \nmotion contains the following passage: \nThis claim has changed his mind on hav[ing] the 10/7/20 H102650 \ndismissed; in fact this claimant has changed his mind or position so \nmuch it is repugnant to the undersigned attorney. \n \nIn an Order entered on June 28, 2024, I granted McNeely’s motion under AWCC \nAdvisory 2003-2. \n\nCOBURN – H004961 & H102650 \n \n9 \n On  July  2,  2024,  I  scheduled  a  prehearing  telephone  conference  for \nAugust 12, 2024, on both of the above-captioned claims.  But on August 5, 2024, \nClaimant’s  current  counsel  made  her  entry  of  appearance  and  requested  a \ncontinuance.    I  granted  the  continuance for  30  days,  and  informed  the  parties \nthat  I  was  continuing  to  hold  the  Motion  to  Dismiss  in  abeyance.  Another \nprehearing telephone conference was set for October 7, 2024.  But Claimant’s \ncounsel again requested a continuance, citing “communication issues” and the \nbelief  that  the  additional  time  would  allow  for  an  amicable  resolution  of  the \nmatter.  However, the conference took place as scheduled.  By agreement of the \nparties  at  that  conference, Claim  No. H004961  was  returned  to  general  files  so \nthat discovery could be completed; and Claim No. H102650 would proceed to a \nhearing  on  the  Motion  to  Dismiss.   In  a  response  dated  October  28,  2024, \nClaimant’s counsel objected to the dismissal of the latter claim and requested a \nhearing.    Another  conference  on  both  files  was  eventually  scheduled  for  March \n31, 2025.  That conference led to the setting of the instant hearing for June 12, \n2025, and then the re-setting of such at the request of Claimant’s counsel. \n At  the  hearing,  as  alluded  to  above,  Claimant  indicated  that  he  was \nreversing  course and now  not only no  longer  objected to the  dismissal  of  Claim \nNo.  H102650,  but  was  amendable  to  its  dismissal with  prejudice.    When \nquestioned by both sides, he testified as follows: \nMS. ROGERS:  (Continuing) \n \nQ. Is it your intention to agree to a dismissal of Claim H102650? \n\nCOBURN – H004961 & H102650 \n \n10 \n \nA. Yes. \n \nQ. And have you had time to consult with counsel about that? \n \nA. Yes. \n \nQ. And you understand what that means, the dismissal of that? \n \nA. Yes. \n \nQ. And  you  understand  that  you  won’t  be  able  to  bring  that \nclaim again at a later time? \n \nA. Yes. \n \nQ. Okay.  And then you also have Claim H004961? \n \nA. Yes. \n \nQ. And that’s for an alleged injury of the head, neck, shoulder, \nand back? \n \nA. Yes. \n \nQ. And  do  you  understand  that  the  issues  of  that  claim  will  be \nreserved today? \n \nA. Yes. \n \n. . . \n \nBY MS. MARKHAM: \n \nQ. Mr.  Coburn,  an  AR-C  was  filed  on  your  behalf  under  Claim \nNo. H102650 on March 16, 2021, is that correct? \n \nA. Correct. \n \nQ. And in that matter it is alleged that you sustained an injury to \nyour back as an aggravation of a previous injury of June 29, \n2020, correct? \n \n\nCOBURN – H004961 & H102650 \n \n11 \nA. What’s that date again for the— \n \nQ. June 29, 2020. \n \nA. Yes. \n \nQ. Okay.  And it’s your desire today to voluntarily dismiss that \nclaim with prejudice, is that correct? \n \nA. Correct. \n \nQ. You understand that the phrase “with prejudice” means that \nyou can’t come back and refile that claim? \n \nA. Yes. \n \nQ. Okay.  And you’ve had an opportunity to speak with your \nattorney about that issue? \n \nA. Yes. \n \nQ. And  it  is  your  desire  as  we  proceed  forward  to  have  that \nclaim dismissed? \n \nA. Yes. \n \nDiscussion \n 11 C.A.R. § 25-110(d) provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  In turn, Ark. Code Ann. § 11-9-702(a)(4) (Repl. 2012) reads: \n(4)   If   within   six   (6)   months   after   the   filing   of   a   claim   for \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \n\nCOBURN – H004961 & H102650 \n \n12 \nhearing,  be  dismissed  without  prejudice  to  the  refiling  of  the  claim \nwithin  limitation  periods  specified  in  subdivisions  (a)(1)-(3)  of  this \nsection. \n \n. . . \n \n(d) If  within  six  (6)  months  after  the  filing  of  a  claim  for additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing, if necessary, be dismissed without prejudice to the refiling \nof  the  claim  within  limitation  periods  specified  in  subsection (b) of \nthis section. \n \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove \nby  a  preponderance  of  the  evidence  that  dismissal  should  be  granted.    The \nstandard “preponderance of the evidence” means the evidence having greater \nweight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson \nWorld Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37 S.W.3d 649 (2001).  The Commission must sort through conflicting evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n\nCOBURN – H004961 & H102650 \n \n13 \n I credit Claimant’s testimony as set above.  His  desire  to  dismiss  Claim \nNo.  H102650  corresponds  with  the  procedural  history  of  this  matter,  which \nreadily reflects a lack of its prosecution.  Thus, the evidence preponderates that \ndismissal is warranted under 11 C.A.R. § 25-110(d).  Because of this finding, the \napplication of § 11-9-702(a)(4) is moot and will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  Based on the foregoing, I find that the dismissal of \nthis claim should be and hereby is entered with prejudice. \nCONCLUSION \n Judgment is hereby rendered in accordance with the Findings of Fact and \nConclusions of Law set forth above. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":18274,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NOS. H004961 & H102650 JOHNNY COBURN, EMPLOYEE CLAIMANT ARKANSAS STEEL ASSOC., LLC EMPLOYER RESPONDENT PHOENIX INS. CO., CARRIER RESPONDENT OPINION FILED AUGUST 20, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 24, 2024, in Little R...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":["neck","strain","shoulder","back"],"fetchedAt":"2026-05-19T22:37:45.840Z"},{"id":"alj-H207526-2025-08-20","awccNumber":"H207526","decisionDate":"2025-08-20","decisionYear":2025,"opinionType":"alj","claimantName":"Michael Gilbert","employerName":"Evergreen Packaging, LLC","title":"GILBERT VS. EVERGREEN PACKAGING, LLC AWCC# H207526 & H307464August 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GILBERT_MICHAEL_H207526_H307464_20250820.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GILBERT_MICHAEL_H207526_H307464_20250820.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE Nos H207526 & H307464 \n \nMICHAEL T. GILBERT, EMPLOYEE        CLAIMANT \n \nEVERGREEN PACKAGING, LLC EMPLOYER                      RESPONDENT \n \nINDEMNITY INSURANCE CO. OF NORTH AMERICA/ \nSEDGWICK CLAIMS MANAGEMENT, CARRIER/TPA (H207526)      RESPONDENT \n \nACE AMERICAN/GALLAGHER BASSETT, \nCARRIER/TPA (H307464)            RESPONDENT \n  \n \n \nOPINION FILED 20 AUGUST 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 5 June 2025 in Pine Bluff, Arkansas. \n \nThe pro se claimant failed to appear. \n \nThe Frye Law Firm, Mr. Bill Frye, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 5 June 2025. This case relates to alleged workplace injuries occurring \non 27 October 2021 (H307464) and 28 September 2022 (H207526). The hearing record \nconsists of the transcript and two exhibits: Respondent’s Exhibit No 1 is the Form AR-C \nfiled in Claim No H307464 and Respondent’s Exhibit No 2 is the Form AR-C filed in Claim \nNo H207526. I am also blue-backing to this opinion the Full Commission Orders granting \nthe request of the claimant’s previous counsel to withdraw her representation from these \nclaims, the respondents’ requests for dismissal, the relevant mailings from my office, and \naccompanying delivery confirmation receipts for the same. In accordance with Sapp v. \nTyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, those documents are \nbeing served on the parties in conjunction with this opinion. \n\nGILBERT- H207526 & H307464 \n2 \n \nOn 10 November 2022, the claimant, though then-counsel, filed a Form AR-C in \nClaim No H307464. Then, on 18 November 2022, the claimant’s counsel filed a Form AR-C \nin Claim H207526. On 14 August 2024, the Full Commission entered Orders granting \nCounsel’s request to withdraw her representation from both claims.  \nThe respondents eventually requested that these claims be dismissed under \nCommission Rule 099.13 (now codified at 11 C.A.R. § 25-110(d)). They note that the \nclaimant had not taken action on his claims since the AR-C filings.  \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail on 21 January 2025. Notice \nof the hearing on the respondents motion was sent in the same manner on 1 May 2025. \nCopies of those mailings and the accompanying proof of delivery receipts are blue-backed to \nthis opinion. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over these claims. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on the motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaims under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; these claims are dismissed without \nprejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 5 June 2025 and presented their motion. As argued by \nthe respondents at the hearing, Commission Rule 099.13 (now 11 C.A.R. § 25-110(d)) \nprovides for a dismissal for failure to prosecute an action upon application by either party \n\nGILBERT- H207526 & H307464 \n3 \n \nand reasonable notice. The claimant did not file a response to the motion or appear at the \nhearing to argue against the dismissal of his claims. The record does not reflect a request \nfor a hearing or any other action taken by the claimant in furtherance of the prosecution of \neither claim. A dismissal without prejudice is, therefore, appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and these claims are DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4070,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE Nos H207526 & H307464 MICHAEL T. GILBERT, EMPLOYEE CLAIMANT EVERGREEN PACKAGING, LLC EMPLOYER RESPONDENT INDEMNITY INSURANCE CO. OF NORTH AMERICA/ SEDGWICK CLAIMS MANAGEMENT, CARRIER/TPA (H207526) RESPONDENT ACE AMERICAN/GALLAGHER BASSETT, CARRIER/TPA (H307...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:47.905Z"},{"id":"alj-H306909-2025-08-20","awccNumber":"H306909","decisionDate":"2025-08-20","decisionYear":2025,"opinionType":"alj","claimantName":"Robert Grinstead","employerName":"Cadence Intermediate Ii, LLC","title":"GRINSTEAD VS. CADENCE INTERMEDIATE II, LLC AWCC# H306909 August 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GRINSTEAD_ROBERT_H306909_20250820.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRINSTEAD_ROBERT_H306909_20250820.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H306909 \n \nROBERT GRINSTEAD, EMPLOYEE        CLAIMANT \n \nCADENCE INTERMEDIATE II, LLC, EMPLOYER                             RESPONDENT \n \nFEDERATED MUTUAL INSURANCE,  \nCARRIER               RESPONDENT \n \n \nOPINION FILED 20 AUGUST 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 3 July 2025 in Pine Bluff, Arkansas. \n \nThe pro se claimant did not appear. \n \nNewkirk & Jones, Mr. Eric Newkirk, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n This case relates to an alleged workplace injury occurring on 11 October 2023. A \nhearing on the respondents’ Motion to Dismiss was held on this matter in Pine Bluff, \nArkansas, on 3 July 2025. The record from the hearing consists of the hearing transcript; \nRespondents’ Exhibit No 1, which consists of their motion, forms, other filings, and \ncorrespondence; and Commission’s Exhibit No 1, which consists of proof of delivery receipts, \nthe claimant’s Form AR-C, and a letter from the claimant asking that his claim be \ndismissed. \nThe claimant, through then-counsel, filed a Form AR-C seeking initial benefits on 13 \nDecember 2023. Counsel eventually sought leave to withdraw her representation, and the \nFull Commission approved that request on 3 October 2024. The respondents filed the \nimmediate motion on 22 May 2025 seeking a dismissal under 11 C.A.R. § 25-110(d) \n(formerly Commission Rule 099.13) and/or A.C.A. § 11-9-702.  \n\nGRINSTEAD- H306909 \n2 \n \nNotice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail, to the address provided on \nthe Form AR-C. On 6 June 2025, the claimant filed a letter with the Commission stating \nthat he would like for his claim to be dismissed. A hearing on the motion was set. \nConsistent with his intention that the claim be dismissed, the claimant did not appear at \nthe hearing to argue against the respondents’ motion. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on that motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim for initial benefits is \ndismissed without prejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 3 July 2025 and presented their motion. As argued by \nthe respondents at the hearing, Commission Rule 099.13 (now 11 C.A.R. § 25-110(d)) \nprovides for a dismissal for failure to prosecute an action upon application by either party \nand reasonable notice. The record supports the respondents’ request for a dismissal without \nprejudice; and the claimant filed a response to the motion stating that he did not object to \nthe dismissal of his claim. A dismissal without prejudice is, therefore, appropriate. \n \n \n \n\nGRINSTEAD- H306909 \n3 \n \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3444,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H306909 ROBERT GRINSTEAD, EMPLOYEE CLAIMANT CADENCE INTERMEDIATE II, LLC, EMPLOYER RESPONDENT FEDERATED MUTUAL INSURANCE, CARRIER RESPONDENT OPINION FILED 20 AUGUST 2025 Heard before Arkansas Workers’ Compensation Commission (“the Commission”) Administra...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:49.976Z"},{"id":"alj-H401705-2025-08-19","awccNumber":"H401705","decisionDate":"2025-08-19","decisionYear":2025,"opinionType":"alj","claimantName":"Karisha Brown","employerName":"Central Ark. Opthalmology","title":"BROWN VS. CENTRAL ARK. OPTHALMOLOGY AWCC# H401705 August 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Brown_Karisha_H401705_20250819.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brown_Karisha_H401705_20250819.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H401705 \n \n \nKARISHA BROWN, EMPLOYEE CLAIMANT \n \nCENTRAL ARK. OPTHALMOLOGY, \n EMPLOYER RESPONDENT \n \nUNION INS. CO. OF PROVIDENCE, \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 19, 2025 \n \nHearing  before Chief Administrative  Law  Judge  O.  Milton  Fine  II  on August  14, \n2025, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Ms. Karen  H.  McKinney,  Attorney  at  Law,  Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  Respondents’ Motion  to \nDismiss.    A  hearing  on  the  motion  was  conducted  on August  14,  2025, in  Little \nRock,  Arkansas.    Claimant failed  to  appear  at  the  hearing.    Respondents  were \nrepresented at the hearing by Ms. Karen H. McKinney, Attorney at Law, of Little \nRock,  Arkansas.   The  record  consists  of  the following:  Respondents’ Exhibit 1, \nforms,  pleadings,  and  correspondence  related  to  this  claim, consisting  of 34 \nnumbered pages.  Also,  in  order  to  address  adequately  this  matter  under  Ark. \nCode Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing \n. . . in a manner which best ascertains the rights of the parties”), and without \nobjection,    I    have    blue-backed    to    the    record forms,    pleadings,    and \ncorrespondence from the Commission’s file on the claim, totaling 18 pages.    In \n\nBROWN – H401705 \n \n2 \naccordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. \nLEXIS 549, these documents have been served on the parties in conjunction with \nthis  opinion.  In  addition,  the  transcript  and  blue-back  of  the  January  30,  2025, \nhearing on this claim has been incorporated herein by reference. \n The evidence reflects that on March 8, 2024, Claimant filed a Form AR-C, \nalleging  that she was  entitled  to initial medical  and  temporary  partial  disability \nbenefits for her injuries she allegedly suffered on October 17, 2023.  She related: \nAttacked and bitten by Dr. Roza[’]s [b]ig [d]og walking down hallway \nto my desk after delivering patient[’]s to the [d]octor[’]s offices.  Dog \njumped  on  my  back[,]  scratching  me[,]  pushing  me[,]  and  bit  my \nback of [r]ight arm. \n \nPer  the  First  Report  of  Injury  or  Illness  filed  on  March  21,  2024,  Claimant \npurportedly suffered injuries at work on October 17, 2023, while returning patient \ncharts.    According  to  the  Form  AR-2  that  was  also  filed  on  March  21,  2024, \nRespondents controverted the claim in its entirety. \n The  record  reflects  that  no  further  activity  occurred  on  this  claim  until \nOctober  10,  2024,  when  Respondents  filed  the  instant  Motion  to  Dismiss under \nAWCC R. 099.13 (now codified as 11 C.A.R. § 25-110(d)) and Ark. Code Ann. § \n11-9-702  (Repl.  2012).    Therein,  they  alleged  that  more  than  six  months  had \nelapsed  since  the  filing  the  Form  AR-C without  Claimant  requesting  a  hearing \nthereon.    The  file  was  reassigned  to me on October  11,  2024;  and on  October \n14,  2024, my  office wrote  Claimant,  requesting  a  response  to  the  motion  within \n20  days.   The  letter  was  sent  to  Claimant  by  first-class  and  certified  mail  to  the \n\nBROWN – H401705 \n \n3 \naddress she listed on the Form AR-C:  1502 Green Mountain Drive, Little Rock, \nArkansas  72211.  However, both items of correspondence were returned to the \nCommission  with  the  notation  “INSUFFICIENT  ADDRESS.”    (Emphasis  in \noriginal)  Unsurprisingly, no response from Claimant was forthcoming. \n On  November  6,  2024,  this  hearing  was  initially  scheduled  for  December \n12, 2024, at 9:30 a.m. at the Commission in Little Rock.  The Notice of Hearing \nwas  sent to  Claimant at  the  same  address as  used  previously.   As  before,  both \nthe  certified  and  first-class  letters  were  returned.    On  December  10,  2024,  I \nemailed  Respondents’  counsel  that  the  notations  on  the  returned \ncorrespondence  led  me  to  research  and  confirm  that  Claimant  resided  at  an \napartment  complex,  and  that  her  unit  number  was  172.    For  that  reason,  I \ncanceled the hearing and issued a new 20-day letter with the enhanced address.  \nBut once again, the United States Postal Service returned both the certified and \nfirst-class  letters,  explaining  that  they  were  “NOT  DELIVERABLE  AS \nADDRESSED.”  (Emphasis in original)  Again—unsurprisingly—Claimant did not \nfile the requested response to Respondents’ motion. \n On  December  30,  2024,  the  hearing  on  the  Motion  to  Dismiss  was \nrescheduled for January 30, 2025, at 9:30 a.m. at the Commission in Little Rock.  \nBut in this instance, while the Notice of Hearing was again sent to Apartment 172 \nand the address listed on Claimant’s Form AR-C, the one sent by first-class mail \nmanaged  to  be  delivered  to  her.    She  brought  it  to  the  hearing,  crumpled,  and \n\nBROWN – H401705 \n \n4 \ntestified that it along with a number of other mail items had been delivered to her \nbelatedly en masse. \n The  hearing took  place  as  scheduled.    Both  parties  appeared,  and \nClaimant  testified.  Respondents  argued  for  dismissal  under  both  §  11-9-\n702(a)(4)  & (d)  (Repl.  2012)  and  Rule  13.  In  an  opinion  handed  down  on \nFebruary  4,  2025,  I  denied  the  motion  and  issued  prehearing  questionnaires  to \nthe parties the next day. \n Claimant filed her Preliminary Notice on February 26, 2025.  Therein. She \nrepresented  that  the  value  of  her  case  was  less  than  $2,500.00.   Respondents \nagreed.   This  triggered  mandatory  mediation.    The  file  was  transferred  to  the \nLegal  Advisor  Division  to  conduct  the  mediation.    A  mediation  conference  was \nscheduled for April 7, 2025, at 10:00 a.m.  However, Claimant failed to appear at \nthat  conference.    For  that  reason,  the  file  was  transferred  back  to  my  office  to \ncontinue with the prehearing process.  New prehearing questionnaires were sent \nout  on  April  10,  2025.    Claimant  once  again,  on  April  28,  2025,  returned  her \nPreliminary  Notice;  and  while  she  made no  representation  concerning  the  value \nof   her   claim   in   this   instance,   she   agreed   to   voluntary   mediation.      But \nRespondents   in their   April   24,   2025,   response   declined   to   participate   in \nmediation.  Claimant’s prehearing questionnaire response was due May 1, 2025.  \nHowever, that deadline came and went without her filing her response.  My office \nemailed her on May 9, 2025, giving her until May 16, 2025, to comply.  When she \n\nBROWN – H401705 \n \n5 \nfailed  to  file  the  response by  this  new  deadline,  her  file was  returned to  the \nCommission’s general files on May 20, 2025. \n On  June  18,  2025,  Respondents  filed  the  instant  Motion  to  Dismiss.  \nTherein, they asserted that dismissal was called for under § 11-9-702 as well as \nRule 13.  As was done on the first motion to dismiss, my office wrote Claimant on \nJune 20, 2025, requesting a response within 20 days.  This correspondence was \nsent  to  an  address  supplied  by  Claimant.   While  she  did  not  claim  the  certified \nletter—resulting  in  its  being  returned  to  the  Commission  on  July 14,  2025—the \nfirst-class  correspondence  was  not  returned.    Regardless,  she  did  not  respond.  \nOn July 15, 2025, a hearing on the motion was scheduled for August 14, 2025, at \n11:30 a.m. at the Commission in Little Rock.  The Notice of Hearing was sent to \nthe parties.  The United States Postal Service was unable to determined whether \nClaimant claimed the certified mailing; but the first-class mailing of the notice was \nnot returned. \n On August 14, 2025, the hearing on the motion proceeded as scheduled.  \nClaimant failed to  appear.    Respondents appeared  through  counsel  and argued \nfor dismissal under the foregoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n\nBROWN – H401705 \n \n6 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the July 11, \n2024, hearing thereon pursuant to 11 C.A.R. § 25-110(d). \n3. Respondents have proven by a preponderance of the evidence that \nClaimant  has  failed  to  prosecute  her  claim  under  11  C.A.R. § 25-\n110(d). \n4. Respondents’ Motion to Dismiss should be, and hereby is, granted. \n5. This claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n 11 C.A.R. § 25-110(d) provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  (Emphasis added) \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nclaim–by a  preponderance  of  the evidence.   This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nBROWN – H401705 \n \n7 \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin  pursuit  of  it—including  appearing  at  the  August  14,  2025,  hearing  to  argue \nagainst  its  dismissal—since  she  appeared  at  the  first dismissal hearing  on \nJanuary 30, 2025.  Thus, the evidence preponderates that dismissal is warranted \nunder  11  C.A.R. § 25-110(d).    Because  of  this  finding,  the  application  of  Ark. \nCode Ann. § 11-9-702 (Repl. 2012) is moot and will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment  Bureau  v.  Strong,  75  Ark.  249,  629  S.W.2d  284  (1982)).  Based  on \nthe  foregoing, I find  that  the  dismissal  of  this  claim  should  be  and  hereby  is \nentered without prejudice.\n1\n \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth \nabove, this claim is hereby dismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nBROWN – H401705 \n \n8 \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":11461,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H401705 KARISHA BROWN, EMPLOYEE CLAIMANT CENTRAL ARK. OPTHALMOLOGY, EMPLOYER RESPONDENT UNION INS. CO. OF PROVIDENCE, CARRIER RESPONDENT OPINION FILED AUGUST 19, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on August 14, 2025, in Littl...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:37:41.589Z"},{"id":"alj-H307361-2025-08-14","awccNumber":"H307361","decisionDate":"2025-08-14","decisionYear":2025,"opinionType":"alj","claimantName":"Adam Franklin","employerName":"Garland County Sheriff’s Department","title":"FRANKLIN VS. GARLAND COUNTY SHERIFF’S DEPARTMENT AWCC# H307361 August 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FRANKLIN_ADAM_H307361_20250814.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FRANKLIN_ADAM_H307361_20250814.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H307361 \n \n \nADAM K. FRANKLIN, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nGARLAND COUNTY SHERIFF’S DEPARTMENT,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nAAC/RISK MANAGEMENT SERVICES \nCARRIER/TPA                                                                                                       RESPONDENT                                                                      \n          \n                                                                                              \nOPINION FILED AUGUST 14, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Hot Springs, Garland County, \nArkansas. \n \nClaimant, pro se, did not appear for the dismissal hearing.         \n \nRespondents represented by the Honorable Carol Lockard-Worley, Attorney at Law, Little Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on July 25, 2025, in the above-referenced matter pursuant to Dillard v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), to determine whether \nthis case should be dismissed for failure to prosecute under the provisions of Ark. Code Ann. §11-\n9-702 (Repl.  2012), and Arkansas  Workers’ Compensation Commission  Rule  099.13 (now \ncodified at 11 C.A.R. § 25-110(d)). \nAppropriate notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.   \nNo testimony was taken. \nThe  record  consists  of  the hearing transcript  of July  25, 2025, and  the  documents held \ntherein.  Commission’s Exhibit 1 consisting of ten pages has been marked accordingly, and the \n\nFranklin – H307361 \n \n2 \n \nRespondents introduced into evidence an exhibit consisting of eight numbered pages, which was \nthus marked Respondents’ Exhibit 1. (Of  note,  the  hearing  transcript  erroneously states  that \nRespondents’ exhibit consists of nine pages).  Both exhibits were introduced into evidence without \nobjection.  \n                                                               Background \n The procedural history of this claim is as follows:  \n The Claimant’s former attorney filed  a  Form  AR-C  with  the  Commission  on November \n21, 2024, alleging that the Claimant sustained a compensable injury on October 21, 2023, while \nworking for the respondent-employer.  Per this document, the Claimant allegedly injured his left \nknee in a work-related accident.  Under the Claim Information section of the Form AR-C, it shows \nthat  the  Claimant  requested  only additional workers’ compensation benefits.  These benefits \nincluded  a  claim  for additional temporary  total  disability compensation, additional temporary \npartial disability benefits, rehabilitation, additional medical expenses, additional permanent partial \nbenefits, and attorney fees.    \n  The Respondents’ claims  specialist filed  a  Form  AR-2, with  the Commission  on \nNovember 9, 2023, accepting compensability of the claim for a compensable left knee injury.  \n Subsequently,  there was no  action whatsoever taken on  the  part  of  the  Claimant  to \nprosecute his claim or otherwise pursue settlement of it. \n However,  the  Claimant’s  attorney  filed  a  motion  to  withdraw  from  representing  the \nClaimant  in  this  claim.    On April  23,  2025,  the  Full  Commission  entered  an  order  granting  the \nmotion.    \n Since this time, the Claimant has not taken any action to pursue or resolve his claim.  \n\nFranklin – H307361 \n \n3 \n \nTherefore, on or about May 27, 2025, the Respondents filed a Motion to Dismiss for Failure \nto  Prosecute, with  the  Commission.  The Respondents notified  the  Claimant  of  said  motion \npursuant to a certificate of service sent via the United States Postal Service on that same date.      \nSubsequently, on May 29, 2025, my office sent a letter-notice informing the Claimant of \nthe Respondents’ motion to dismiss, and a deadline of twenty days for filing a written response.  \nThis letter was sent via first-class and certified mail.   \nInformation received by the Commission from the United States Postal Service confirms \nthat they were unable to deliver the item sent via certified mail to the Claimant’s residence on June \n13, 2025, because an unidentified individual refused delivery of this item.  Yet the notice sent by \nfirst-class mail was returned to the Commission on June 8, 2025, marked undeliverable.   \n Per a Hearing  Notice generated  on June  19,  2025, my  office  notified  the  parties  that  a \nhearing had been scheduled on the Respondents’ motion to dismiss.  Said dismissal hearing was \nscheduled  for 9:30 a.m., at  the Transportation  Depot,  in Hot  Springs,  Arkansas.  This hearing \nnotice was sent via first-class and certified mail. \nInformation  received  from  the  Postal  Service  shows  that  the  hearing  notice sent via \ncertified mail was delivered to the Claimant’s residence on June 30,  2025.  Said  hearing  notice \nsent  via  certified mail was delivered to the Claimant’s residence and left with an unidentified \nindividual.  The signature of the recipient of this item is illegible.  However, on June 24, 2025, the \nnotice sent  via  first-class  mail was returned  to  the Commission.   Based  on  the foregoing, the \nevidence preponderates that the Claimant had notice of the dismissal hearing.     \nA hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \ndid not appear for the hearing.  However, the Respondents appeared through their attorney.  The \nRespondents’ counsel argued, among other things, that the Claimant has failed to timely prosecute \n\nFranklin – H307361 \n \n4 \n \nhis claim for workers’ compensation benefits. Counsel  further  noted  that  the  Claimant  did  not \nappear at the hearing to object to the dismissal or request a hearing.  As such, Counsel moved that \nthis claim be dismissed for failure to prosecute under Ark. Code Ann. §11-9-702, and Commission \nRule 099.13 (now codified at 11 C.A.R. § 25-110 (d)). \nAdjudication   \nTherefore, the statutory provision and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 (now codified at 11 C.A.R. § 25-110 (d), reads as follows: \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor additional workers’ compensation benefits, but he has failed to do so.  Specifically,  the \nClaimant has not requested a hearing or otherwise made any effort to prosecute his claim since the \nfiling of  the  Form  AR-C more  than  six  (6)  months ago; and  nor  has  he  resisted  the motion to \n\nFranklin – H307361 \n \n5 \n \ndismiss  his claim despite  having  received  notice  of  the dismissal hearing. Thus, the  evidence \npreponderates that the Claimant has clearly failed to prosecute this claim for additional workers’ \ncompensation benefits.  Furthermore, I am convinced that the Claimant has abandoned his claim.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant to Ark. Code \nAnn.§11-9-702, and Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110 (d)), this claim \nfor additional workers’ compensation benefits is hereby respectfully dismissed without prejudice \nto  the  refiling of  it within  the limitation  period specified  under  the  Arkansas  Workers’ \nCompensation Act (referred to herein as the “Act”). \n                           FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. The Claimant’s former attorney filed a Form AR-C in May 2024.  Since this \ntime, the Claimant has not requested a hearing or shown that he wishes to \npursue this claim for additional workers’ compensation benefits.  \n \n3. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n4. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The evidence  preponderates  that  the Respondents’ motion to dismiss this \nclaim for lack of prosecution is well founded, and should be hereby granted, \nwithout  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and  Commission  Rule \n099.13(now codified at 11 C.A.R. § 25-110 (d)) to the refiling of it within \nthe limitation period specified by law.  \n             \n \n \n \n\nFranklin – H307361 \n \n6 \n \n                                               ORDER \n \nBased  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’ compensation benefits.  This dismissal is made pursuant to the provisions of Ark. Code  \nAnn. §11- 9-702, and Commission Rule 099.13(now codified at 11 C.A.R. § 25-110 (d)), without \nprejudice to the refiling of this claim within the limitation period specified under the Act. \nIT IS SO ORDERED. \n \n     \n                                   \n                                                             _____________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":11177,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H307361 ADAM K. FRANKLIN, EMPLOYEE CLAIMANT GARLAND COUNTY SHERIFF’S DEPARTMENT, EMPLOYER RESPONDENT AAC/RISK MANAGEMENT SERVICES CARRIER/TPA RESPONDENT OPINION FILED AUGUST 14, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in Hot Spr...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:37:35.292Z"},{"id":"alj-H400338-2025-08-14","awccNumber":"H400338","decisionDate":"2025-08-14","decisionYear":2025,"opinionType":"alj","claimantName":"James Geiger","employerName":"City Of Highland","title":"GEIGER VS. CITY OF HIGHLAND AWCC# H400338 August 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GEIGER_JAMES_H400338_20250814.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GEIGER_JAMES_H400338_20250814.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.:H400338 \n \nJAMES E. GEIGER,  \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nCITY OF HIGHLAND, \nEMPLOYER                                                                                                            RESPONDENT              \n                                                                                  \nMUNICIPAL LEAGUE WORKERS’ \nCOMPENSATION PROGRAM,               \nCARRIER/TPA                                                                                                       RESPONDENT                                               \n \n \nOPINION FILED AUGUST 14, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant represented  by  the  Honorable  Kenneth  J.  Kieklak,  Attorney  at  Law,  Fayetteville, \nArkansas.  Mr. Kieklak waived his appearance at the hearing.    \n \nRespondents represented by the Honorable Mary K. Edwards, Attorney at Law, North Little \nRock, Arkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A  hearing  was  held  on the Respondents’ motion  to  dismiss  this  claim due  to a  lack  of \nprosecution, on July 23, 2025, in this workers’ compensation claim pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004).    Here,  the  sole  issue  for \ndetermination  is whether  this  claim should  be  dismissed due to the Claimant’s failure  to timely \nprosecute it  under the  provisions  of Ark.  Code  Ann.  §11-9-702 (Repl.  2012),  and/or Arkansas \nWorkers’ Compensation Commission Rule 099.13 (now codified at 11 C.A.R. § 25-110(d)).  \nAppropriate Notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.   \n\nGEIGER – H400338 \n \n2 \n \nThe  record  consists  of  the  transcript  of July 23,  2025,  hearing  and  the  documents  held \ntherein.  Respondents’ Exhibit 1 is a Documentary Exhibit made up of six numbered pages, and a \ncover sheet/Respondents’ Non-Medical Exhibit Index for a total of seven pages.\n1\n  Said exhibit was \nmade a part of the record without objection. \nNo testimony was taken at the hearing. \n               Procedural History \n On or about January 12, 2024, the Claimant’s attorney filed a Form AR-C alleging that he \nsustained  a  compensable  injury  in  the  course  and  scope  of  his  employment  with  the  City  of \nHighland on January 8, 2024.  The Claimant alleged that he sustained injuries to his left shoulder, \nleft knee and back, while directing traffic.   \n The  Respondents accepted  the  claim  and  began  paying  benefits  to  and  on  behalf  of  the \nClaimant.  Since the filing of the Form AR-C in January 2024, the Claimant has made no request \nfor a hearing on the merits of his claim.     \n     Subsequently, the parties reached a third-party settlement.  On March 13, 2025, an order \nwas entered approving the third-party claim.  \nStill, since this time, the Claimant has failed to make a request for a hearing and has not \ntaken any affirmative action whatsoever to pursue his claim for workers’ compensation benefits.           \nTherefore, the  Respondents  filed  a Motion  to  Dismiss  for  Failure  to  Prosecute with the \nCommission on June  23,  2025,  along  with  a  certificate  of  service to the Claimant’s attorney \nshowing that a copy of this pleading was sent to him via email.   \n \n \n1\n Although the hearing transcript shows that Respondents’ Exhibit 1 consists of seven pages; however, it \nhas a cover sheet (which has been named “Respondents’ Exhibit 1 Documentary Exhibit”) and six numbered pages \nfor a total of seven pages. \n\nGEIGER – H400338 \n \n3 \n \nOn June 24, 2025, my office sent a letter to the Claimant and his attorney letting them know \nabout the motion for dismissal of his workers’ compensation claim, along with a deadline of twenty \ndays for filing a written objection/response. \nThe Claimant’s attorney sent an email to the Commission on July 17, 2025, saying that the \nClaimant does not object to the motion to dismiss.  \nA hearing was conducted before the Commission, on the Respondents’ motion to dismiss \non July  23,  2025.    During  the  hearing,  counsel for  the  Respondents moved that  this claim  be \ndismissed due to a lack of prosecution under Ark. Code Ann. §11-9-702 and/or 11 C.A.R. §25-\n110 (d), without prejudice.  Counsel specifically noted that the Claimant’s attorney has consented \nto the dismissal and that a third-party agreement order has been entered in this claim.  \n                     Adjudication \nThe Arkansas Workers’ Compensation Rule applicable in this motion for the dismissal of \nthis claim outlined below:  \n11 C.A.R. §25-110(d) reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for a hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n\nGEIGER – H400338 \n \n4 \n \nReview of the records shows that more than six months have passed since the filing of this \nclaim.  However, since that time, the Claimant has failed to make a bona fide request for a hearing \nwith  respect  to his claim for  workers’  compensation  benefits.  Hence, no probative action \nwhatsoever has been put forth by the Claimant to pursue his claim.      \nBased on all the foregoing reasons, I am persuaded that the Claimant has had ample time \nto pursue this claim for workers’ compensation benefits, but he has not done so.  The issues have \nbeen  resolved  by  a  third-party  agreement  and  the  Claimant  does  not  object  to  this  claim  being \ndismissed.   Therefore,  based  on my  review  of  the documentary  evidence,  and  all  other  matters \nproperly before the Commission, I find that the Respondents’ motion to dismiss the within claim \nfor workers’ compensation benefits should be  granted  pursuant  to the  provisions  of  11  C.A.R. \n§25-110(d). Accordingly,  this claim is hereby respectfully dismissed without prejudice to  the \nrefiling of it within the limitation period specified by law. \nTherefore, the issue of the dismissal of this pursuant to Ark. Code Ann. §11-9-702 (Repl. \n2012) has been rendered moot. \n                                         Findings of Fact and Conclusions of Law \nOn the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim due to a lack of prosecution, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since the filing of the Form AR-\nC  more  than  six  months  ago.    He  does  not object  to  his  claim  being \ndismissed.  Hence, the evidence preponderates that the Claimant has failed \nto prosecute his claim for workers’ compensation benefits.      \n \n\nGEIGER – H400338 \n \n5 \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby granted, pursuant to 11 C.A.R. §25-110 (d), without prejudice, to the \nrefiling of it within the limitation period specified by law.  \n \nORDER \nBased on the foregoing Findings of Fact and Conclusions of Law, I find that per 11 C.A.R. \n§25-110 (d), this claim is hereby respectfully dismissed, without prejudice, to the refiling within \nthe limitation period specified by law.      \nIT IS SO ORDERED. \n   \n \n                                                                      ________________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":8838,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.:H400338 JAMES E. GEIGER, EMPLOYEE CLAIMANT CITY OF HIGHLAND, EMPLOYER RESPONDENT MUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM, CARRIER/TPA RESPONDENT OPINION FILED AUGUST 14, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in Little Ro...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["shoulder","knee","back"],"fetchedAt":"2026-05-19T22:37:37.375Z"},{"id":"alj-H402766-2025-08-14","awccNumber":"H402766","decisionDate":"2025-08-14","decisionYear":2025,"opinionType":"alj","claimantName":"Donnie Green","employerName":"Hayes Tile & Cabinetry Inc","title":"GREEN VS. HAYES TILE & CABINETRY INC AWCC# H402766 August 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GREEN_DONNIE_H402766_20250814.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GREEN_DONNIE_H402766_20250814.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H402766 \n \n \nDONNIE O. GREEN, EMPLOYEE   CLAIMANT \n \nHAYES TILE & CABINETRY INC., EMPLOYER RESPONDENT \n \nSTATE NATIONAL INSURANCE COMPANY/CCMSI/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED AUGUST 14, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents are represented by JARROD S. PARRISH, Attorney, Little Rock Arkansas \n \nOPINION/ORDER \n \n \n On   July  8,  2024,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on March  6, \n2024.   Claimant was represented at the time by Andy L. Caldwell who filed a Motion to Withdraw on \nMarch 5, 2025, and was allowed to withdraw on April 3, 2025.   \nOn April 14, 2025, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for August 4, \n2025.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice was delivered to claimant on June 14, 2025.   Claimant did not \nrespond to respondent’s motion and did not appear in person at the hearing on August 4, 2025.  \nI find it has been more than six months since prior to this hearing and that no request for a \n\nGreen-H402766 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby  is  granted.    This  dismissal  is  pursuant  to  Commission 11  C.A.R.§25-110(d) and  is  without \nprejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2160,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402766 DONNIE O. GREEN, EMPLOYEE CLAIMANT HAYES TILE & CABINETRY INC., EMPLOYER RESPONDENT STATE NATIONAL INSURANCE COMPANY/CCMSI/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED AUGUST 14, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fo...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:39.435Z"},{"id":"alj-H405703-2025-08-13","awccNumber":"H405703","decisionDate":"2025-08-13","decisionYear":2025,"opinionType":"alj","claimantName":"Brenda Adams","employerName":"Pulaski Special School District","title":"ADAMS VS. PULASKI SPECIAL SCHOOL DISTRICT AWCC# H405703 August 13, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ADAMS_BRENDA_H405703_20250813.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ADAMS_BRENDA_H405703_20250813.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H405703 \n \nBRENDA ADAMS, EMPLOYEE          CLAIMANT \n \nPULASKI SPECIAL SCHOOL DISTRICT, EMPLOYER                   RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION WCT/ \nARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER/TPA       RESPONDENT \n  \n \n \nOPINION FILED 13 AUGUST 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 6 August 2025 in Little Rock, Arkansas. \n \nThe claimant appeared pro se. \n \nWorley, Wood & Parrish, P.A., Ms. Melissa Wood, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n This case relates to an alleged workplace injury occurring on 26 August 2024. A \nhearing on the respondents’ Motion to Dismiss was held on this matter in Little Rock, \nArkansas, on 6 August 2025. The record from the hearing consists of the hearing transcript; \nRespondents’ Exhibit No 1, which consists of two index pages and an additional forty-one \npages of forms, filings, and correspondence; and Commission’s Exhibit No 1, a file-marked \nletter from the claimant dated 23 December 2024. \nThe respondents first requested a dismissal of this claim under Commission Rule \n099.13 (now codified at 11 C.A.R. § 25-110(d)) via a letter dated 7 May 2025. That motion \nwas denied without prejudice by way of an Order dated 21 May 2025. After some time \npassed without the claimant making any filings with the Commission, the respondents \nsought again, on 14 July 2025, for the claim to be dismissed for lack of prosecution. A \nhearing was then set and notices sent accordingly. \n\nB. ADAMS- H405703 \n2 \n \n \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on that motion. \n \n3. The evidence preponderates that the claimant has not failed to prosecute her \nclaim under 11 CAR § 25-110(d). \n \n4. The Motion to Dismiss is hereby denied without prejudice. \n \nDISCUSSION \nThe parties appeared on 6 August 2025. Before going on the record, the parties \ndiscussed the claimant’s wish that this claim be heard alongside her other claims relating \nto alleged knee injuries occurring during her employment with the respondent. The \nclaimant testified that she has discussed the same with the Commission’s Legal Advisors. \nShe requested that this claim, Claim No H408315, and Claim No G401193 all be considered \ntogether. She further testified that she has been in contact with an attorney whom she \nintends to assist her in prosecuting her claims. She is to request that her attorney \ncommunicate with respondents’ counsel on these matters as soon as possible, should she \nsecure representation. \nThe claimant has shown that she has made efforts towards prosecuting her claim \nand that she intends to continue doing so. The respondents’ motion to dismiss is denied \nwithout prejudice, accordingly. \n \n[The remainder of this page is intentionally left blank.] \n \n\nB. ADAMS- H405703 \n3 \n \n \nORDER \n The Motion to Dismiss is DENIED WITHOUT PREJUDICE.  \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3385,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H405703 BRENDA ADAMS, EMPLOYEE CLAIMANT PULASKI SPECIAL SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WCT/ ARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER/TPA RESPONDENT OPINION FILED 13 AUGUST 2025 Heard before Arkansas Workers’ Co...","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:4"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:37:22.774Z"},{"id":"alj-H406303-2025-08-13","awccNumber":"H406303","decisionDate":"2025-08-13","decisionYear":2025,"opinionType":"alj","claimantName":"Audra Aich","employerName":"Butterball, LLC","title":"AICH VS. BUTTERBALL, LLC AWCC# H406303 August 13, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/AICH_AUDRA_H406303_20250813.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"AICH_AUDRA_H406303_20250813.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H406303 \n \nAUDRA AICH, Employee CLAIMANT \n \nBUTTERBALL, LLC Employer RESPONDENT \n \nCCMSI, Carrier RESPONDENT \n \n \n \n OPINION FILED AUGUST 13, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents  represented  by MICHAEL  E.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On  September  27,  2024,  claimant  filed  Form  AR-C  regarding  an  injury  on  July \n15,  2024.  Respondent  has  accepted  this  claim  as  compensable  and  paid  some \ncompensation  benefits.  After  the  filing  of  the  AR-C  no  hearing  was  requested  and  on \nMay 29, 2025, respondent filed a Motion to Dismiss.  \n A hearing was scheduled on respondent’s Motion to Dismiss for August 4, 2025. \nNotice of the hearing was sent to claimant by certified mail and was delivered on July 7, \n2025.  On  June  16,  2025,  claimant’s  attorney,  Jarid  Kinder,  sent  an  email  to  the \n\nAich – H406303 \n \n-2- \nCommission  indicating  that  he  had  spoken  to the claimant  and she did  not  object  to \nrespondent’s Motion to Dismiss and waived her appearance at the hearing. \n Pursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule \n099.13), the Commission may enter an order dismissing a claim for want of prosecution.  \nAfter my review of respondent’s motion, claimant’s indication that she does not object to \nthe  dismissal,  and  all  other  matters  properly  before  the  Commission,  I  find  that \nrespondent’s  Motion  to  Dismiss  should  be  and  hereby  is  granted. This dismissal  is \nwithout prejudice.  \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":1995,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H406303 AUDRA AICH, Employee CLAIMANT BUTTERBALL, LLC Employer RESPONDENT CCMSI, Carrier RESPONDENT OPINION FILED AUGUST 13, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Claimant represented by JAR...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:24.835Z"},{"id":"alj-H406457-2025-08-13","awccNumber":"H406457","decisionDate":"2025-08-13","decisionYear":2025,"opinionType":"alj","claimantName":"Latosha Bohannon","employerName":"Goodwill Industries Of Arkansas","title":"BOHANNON VS. GOODWILL INDUSTRIES OF ARKANSAS AWCC# H406457 August 13, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BOHANNON_LATOSHA_H406457_20250813.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOHANNON_LATOSHA_H406457_20250813.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H406457 \n \nLATOSHA BOHANNON, EMPLOYEE        CLAIMANT \n \nGOODWILL INDUSTRIES OF ARKANSAS, EMPLOYER                   RESPONDENT \n \nATA WC TRUST/RISK MANAGEMENT RESOURCES,  \nCARRIER/TPA              RESPONDENT \n  \n \n \nOPINION FILED 13 AUGUST 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 25 June 2025 in Little Rock, Arkansas. \n \nThe pro se claimant failed to appear. \n \nWorley, Wood & Parrish, P.A., Ms. Melissa Wood, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n This case relates to an alleged workplace injury occurring on 4 June 2024. A hearing \non the respondents’ Motion to Dismiss was held on this matter in Little Rock, Arkansas, on \n25 June 2025. The record from the hearing consists of the hearing transcript and \nRespondents’ Exhibit No 1, which consists of initial forms and filings on this claim, \npleadings, and correspondence; and Commission’s Exhibit No 1, which consists of proof of \ndelivery receipts and the claimant’s Form AR-C. \nThe claimant filed a Form AR-C seeking initial benefits on 3 October 2024. \nAccording to the Form AR-2, the respondents denied this claim in its entirety. The \nrespondents filed the immediate motion on 17 April 2025 seeking a dismissal under 11 \nC.A.R. § 25-110(d) (formerly Commission Rule 099.13) and/or A.C.A. § 11-9-702. Notice of \nthe respondents’ motion was sent to the claimant, consistent with Commission practices, \nvia First Class Mail and Certified Mail, on 21 April 2025 to the address provided on the \n\nBOHANNON- H406457 \n2 \n \nForm AR-C. A proof of delivery receipt shows that the claimant received that notice on 24 \nApril 2025. She did not file a response to the motion. On 30 May 2025, notice of the hearing \non the respondents’ motion was sent to the claimant in the same manner. A proof of \ndelivery receipt shows that the claimant received the hearing notice on 2 June 2025. She, \nagain, did not file a response with the Commission. The claimant, having received notice of \nthe hearing, chose not to attend the hearing to resist the respondents’ motion. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on that motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute her \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim for initial benefits is \ndismissed without prejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 25 June 2025 and presented their motion. As argued \nby the respondents at the hearing, Commission Rule 099.13 (now 11 C.A.R. § 25-110(d)) \nprovides for a dismissal for failure to prosecute an action upon application by either party \nand reasonable notice. The claimant did not file a response to the motion or appear at the \nhearing to argue against the dismissal of his claim.  \n The respondents argued that more than six months had passed without a request for \na hearing on an issue ripe for litigation after the filing of the claimant’s Form AR-C. The \nclaimant, in turn, did not file a response or appear to object to the dismissal of his claim; \n\nBOHANNON- H406457 \n3 \n \nand a review of the file reveals no action taken by the claimant in the time relevant to the \nrespondents’ motion. A dismissal without prejudice is, therefore, appropriate. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3896,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H406457 LATOSHA BOHANNON, EMPLOYEE CLAIMANT GOODWILL INDUSTRIES OF ARKANSAS, EMPLOYER RESPONDENT ATA WC TRUST/RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED 13 AUGUST 2025 Heard before Arkansas Workers’ Compensation Commission (“the Comm...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:26.924Z"},{"id":"alj-H303969-2025-08-13","awccNumber":"H303969","decisionDate":"2025-08-13","decisionYear":2025,"opinionType":"alj","claimantName":"Johnny Brown","employerName":"Central Moloney, Inc","title":"BROWN VS. CENTRAL MOLONEY, INC. AWCC# H303969 August 13, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BROWN_JOHNNY_L_H303969_20250813.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BROWN_JOHNNY_L_H303969_20250813.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H303969 \n \nJOHNNY L. BROWN, EMPLOYEE        CLAIMANT \n \nCENTRAL MOLONEY, INC., SELF-INSURED EMPLOYER                 RESPONDENT \n \nRISK MANAGEMENT RESOURCES, TPA                RESPONDENT \n  \n \n \nOPINION FILED 13 AUGUST 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 9 July 2025 in Little Rock, Arkansas. \n \nThe pro se claimant failed to appear. \n \nFriday, Eldredge & Clark, LLP, Mr. Guy Wade, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 9 July 2025. This case relates to an alleged workplace injury occurring \non 13 June 2023. The respondents introduced, and I admitted to the record as Respondents’ \nExhibit No 1, forty-six pages of forms, correspondence, and filings in support of their motion. \nAdditionally, I admitted to the record as Commission’s Exhibit No 1, which consisted of the \none Form AR-C and two proof of delivery receipts. \nThe claimant, though then-counsel, initially filed a Form AR-C claiming a shoulder \ninjury. The claimant later filed another Form AR-C claiming injuries to his right shoulder \nand other body parts. The claimant has been represented by different counsel at various \ntimes in this matter. His counsel have each moved to withdraw, and permission for the \nsame was granted by the Full Commission in Orders dated 16 February 2024 and 30 April \n2025. Prehearing Orders were entered on 20 December 2023 and 15 October 2024. Both \nwere continued before the respective hearings were held.  \n\nJ. BROWN- H303969 \n2 \n \nThe respondents requested that this claim for initial benefits be dismissed under \nCommission Rule 099.13 (now codified at 11 C.A.R. § 25-110(d)) on 6 May 2025. They note \nthat the claimant has twice been represented and that he has yet to take a matter ripe for \nlitigation to a hearing.  \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail. Notice of the hearing on the \nrespondents was sent in the same manner. Proof of delivery receipts show that those \nnotices were delivered to the claimant’s address: \n908 N. Lee Street \nPine Bluff, Arkansas 71602 \n \n See Commission’s Exhibit No 1. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on that motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under 11 C.A.R. § 25-110(d). \n \n4. The Motion to Dismiss is hereby granted; this claim for additional benefits is \ndismissed without prejudice under 11 C.A.R. § 25-110(d). \n \nDISCUSSION \nThe respondents appeared on 9 July 2025 and presented their motion. As argued by \nthe respondents at the hearing, Commission Rule 099.13 (now 11 C.A.R. § 25-110(d)) \nprovides for a dismissal for failure to prosecute an action upon application by either party \nand reasonable notice. The claimant did not file a response to the motion or appear at the \nhearing to argue against the dismissal of his claim. The last action taken on behalf of the \n\nJ. BROWN- H303969 \n3 \n \nclaimant appears to be his counsel’s request for to withdraw from the matter on 1 April \n2025. No efforts have since been made to proceed to a hearing on any claim that might be \nripe for litigation. A dismissal without prejudice is, therefore, appropriate.  \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3959,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H303969 JOHNNY L. BROWN, EMPLOYEE CLAIMANT CENTRAL MOLONEY, INC., SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED 13 AUGUST 2025 Heard before Arkansas Workers’ Compensation Commission (“the Commission”) Administra...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:37:28.992Z"},{"id":"alj-G900234-2025-08-13","awccNumber":"G900234","decisionDate":"2025-08-13","decisionYear":2025,"opinionType":"alj","claimantName":"Ramona Ruth","employerName":"Evergreen Packaging, LLC","title":"RUTH VS. EVERGREEN PACKAGING, LLC AWCC# G900234 August 13, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RUTH_RAMONA_K_G900234_20250813.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RUTH_RAMONA_K_G900234_20250813.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G900234 \n \nRAMONA K. RUTH, EMPLOYEE         CLAIMANT \n \nEVERGREEN PACKAGING, LLC, EMPLOYER                    RESPONDENT \n \nACE AMERICAN INSURANCE CO./ \nGALLAGHER BASSETT SERVICES, INC., CARRIER/TPA       RESPONDENT \n  \n \n \nOPINION FILED 13 AUGUST 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 6 August 2025 in Little Rock, Arkansas. \n \nThe Davis Law Firm, Mr. Gary Davis, appeared for the claimant. \n \nThe Frye Law Firm, Mr. William C. Frye, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n This case relates to a workplace injury occurring on 17 May 2018. A hearing on the \nrespondents’ recent Motion to Dismiss was held on this matter in Little Rock, Arkansas, on \n6 August 2025. The record from the hearing consists of the hearing transcript; Respondents’ \nExhibit No 1, which consists of one index page and a subsequent 32 pages of medical and \nbilling records; and Commission’s Exhibit No 1, a Prehearing Order dated 27 May 2025. I \nam also blue-backing to this opinion a letter to the parties dated 1 April 2025 that relates to \nthe parties efforts discussed during a prehearing call on that date. In accordance with Sapp \nv. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, that document is \nbeing served on the parties in conjunction with this opinion. \nOn 21 January 2025, the respondents moved for a dismissal under Commission Rule \n099.13 (now codified at 11 C.A.R. § 25-110(d)). A hearing was then set and notices sent \naccordingly. The claimant indicated that she had experienced some difficulties in obtaining \n\nRUTH- G900234 \n2 \n \nongoing medical treatment related to her compensable right shoulder injury. The parties \ndiscussed the matter briefly during a phone conference and requested a subsequent \nconference be set after being allowed some time to review the potential issues regarding \nongoing treatment. After another prehearing conference on 27 May 2025, the matter was \nset for a hearing on the respondents’ motion. A Prehearing Order was entered that day. \nA hearing was previously held in this claim in front of ALJ Katie Anderson on 31 \nMarch 2022. An Opinion and Order was entered on 29 June 2022. Neither party appealed \nthat ruling. The record of the previous hearing and the accompanying Order were \nacknowledged by the parties and discussed at the hearing. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n 2. The Law of the Case Doctrine applies to the 29 June 2022 Opinion’s findings. \n3. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on that motion. \n \n4. The evidence preponderates that the claimant has not failed to prosecute her \nclaim under 11 C.A.R. § 25-110(d). \n \n5. The Motion to Dismiss is denied without prejudice. \n \nDISCUSSION \nThe parties appeared on 6 August 2025. The evidence and testimony showed that \nthe claimant was continuing to seek and obtain treatment that purported to be related to \nher compensable injury. Her providers, however, have not provided notice of those \ntreatments, nor have they billed the respondents for those treatments. The claimant \ncontinues to treat with some regularity, which includes receiving injections that she \ntestified are related to her compensable right shoulder injury. She testified that she is also \n\nRUTH- G900234 \n3 \n \ntreated for other conditions with the same providers and that those conditions are not \nrelated to her compensable injury. \nThe claimant has shown that she has made efforts towards prosecuting her claim \nand that she intends to continue doing so. The respondents’ motion to dismiss is denied \nwithout prejudice, accordingly. \nORDER \n The Motion to Dismiss is DENIED WITHOUT PREJUDICE.  \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4139,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G900234 RAMONA K. RUTH, EMPLOYEE CLAIMANT EVERGREEN PACKAGING, LLC, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE CO./ GALLAGHER BASSETT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED 13 AUGUST 2025 Heard before Arkansas Workers’ Compensation Commissi...","outcome":"dismissed","outcomeKeywords":["dismissed:4","denied:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:37:31.137Z"},{"id":"alj-H404839-2025-08-13","awccNumber":"H404839","decisionDate":"2025-08-13","decisionYear":2025,"opinionType":"alj","claimantName":"Jacob Tippy","employerName":"Bryce Corporation","title":"TIPPY VS. BRYCE CORPORATION AWCC# H404839 August 13, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TIPPY_JACOB_H404839_20250813.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TIPPY_JACOB_H404839_20250813.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404839 \nJACOB A. TIPPY, EMPLOYEE      CLAIMANT \n \nBRYCE CORPORATION, EMPLOYER     RESPONDENT \n \nAMERISOURCE MUTUAL INSURANCE COMPANY, \nINSURANCE CARRIER/TPA      RESPONDENT \n \n \nOPINION FILED AUGUST 13, 2025 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, on August 5, 2025. \nClaimant is represented by George H. Bailey, Attorney-at-Law, of Little Rock, \nArkansas. \nRespondents are represented by Karen H. McKinney, Attorney-at-Law, of Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n On August 5, 2025, a full hearing was scheduled in the above styled matter in Little \nRock, Arkansas, on claimant’s alleged claims for benefits. Immediately prior to the time \nof the scheduled hearing, the Claimant, along with his attorney, approached the bench \nand presented  to  the Administrative  Law  Judge his  amended  position  that he  now  no \nlonger wished to pursue  his  claims  and  was  requesting that his  claims before  the \nCommission be  dismissed. Prior  to  the  designated  time  of  the  hearing, the  attorney \nrepresenting the Respondents also appeared, and was given the Claimant’s new position \nin regard to the claims that he had made. The hearing was then called to order by the \nAdministrative Law Judge and the claimant’s request for dismissal was entered into the \nrecord.  As would be assumed, no objection to the dismissal was made.   \n\nJacob A. Tippy – H404839 \n2 \n \n After a review of the record as a whole, which includes statements by the Claimant \nand  his  representative,  as  well  as  by  the  attorney  for  the Respondents, there  is  no \nalternative but to find that the Claimant’s claims for benefits should be dismissed without \nprejudice. \nORDER \n Pursuant to the above statement of the case, and the statements by the Claimant \nand his attorney, there is no alternative but to dismiss this matter without prejudice.   \nIT IS SO ORDERED. \n \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2077,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404839 JACOB A. TIPPY, EMPLOYEE CLAIMANT BRYCE CORPORATION, EMPLOYER RESPONDENT AMERISOURCE MUTUAL INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 13, 2025 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:33.209Z"},{"id":"alj-H109553-2025-08-12","awccNumber":"H109553","decisionDate":"2025-08-12","decisionYear":2025,"opinionType":"alj","claimantName":"Vivian Loudermilk","employerName":"Producers Rice Mill, Inc","title":"LOUDERMILK VS. PRODUCERS RICE MILL, INC. AWCC# H109553 & H305845 August 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LOUDERMILK_VIVIAN_H109553_H305845_20250812.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOUDERMILK_VIVIAN_H109553_H305845_20250812.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM Nos H109553 & H305845 \n \nVIVIAN LOUDERMILK, EMPLOYEE       CLAIMANT \n \nPRODUCERS RICE MILL, INC., EMPLOYER         RESPONDENT \n \nTRAVELERS INDEMNITY CO.,  \nCARRIER/TPA                    RESPONDENT \n \n \nOPINION & ORDER FILED 12 AUGUST 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 14 May 2025 in Little Rock, Arkansas. \n \nThe claimant was represented by The Law Office of Furonda Brasfield, PLLC, Ms. Furonda \nBrasfield. \n \nThe respondents were represented by Friday, Eldredge & Clark, LLP, Mr. Guy Alton Wade. \n \nSTATEMENT OF THE CASE \n \n A Prehearing Order was filed on 19 December 2024 and admitted to the hearing \nrecord without objection as Commission’s Exhibit No 1. Consistent with that Order, the \nparties agreed to the following: \nSTIPULATIONS \n \n1. The Commission has jurisdiction over this claim. \n \n2. The employer/employee/carrier-TPA relationship existed at all relevant times \nrelevant to both claims. \n \n3. The respondents accepted as compensable and paid some benefits, including \na four percent (4%) permanent partial disability (PPD) rating to the body-as-\na-whole, on Claim No H109553, relating to an injury to the claimant’s left \nshoulder. The date of injury associated with that claim is 20 September 2021. \nThe claimant’s average weekly wage at that time was $727. The date of the \nlast indemnity benefit paid on that claim was 10 June 2022, when the PPD \nrating was paid. \n \n4. The respondents have asserted that the applicable statute of limitations bars \nclaims for additional benefits associated with the accepted shoulder injury on \nClaim No H109553. \n\nLOUDERMILK- H109553 & H305845 \n2 \n \n5. On Claim No H305845, the respondents have controverted entirely any claim \nfor benefits associated with an alleged injury on 30 August 2023. \n \nISSUES \n \n1. Whether the statute of limitations bars any additional benefits on the claim \nassociated with the claimant’s 20 September 2021 compensable shoulder \ninjury. (Claim No H109553) \n \n2. If the statute does not bar claims for additional benefits, whether the \nclaimant is entitled to any additional benefits associated with her 20 \nSeptember 2021 shoulder injury. (Claim No H109553) \n \n3. Whether the claimant sustained a compensable injury on 30 August 2023. \n(Claim No H305845) \n \n4. Whether the claimant is entitled to an attorney’s fee on any controverted \nbenefits. \n \nAll other issues have been reserved. \n \nCONTENTIONS \n \nThe Prehearing Order incorporated by reference the following contentions from the \nparties’ respective prehearing information responses. \nThe claimant contends:  \n. . . that she is entitled to medical treatment for her work-related injury, \ntemporary total disability, temporary partial disability, permanent partial \ndisability, permanent total disability, rehabilitation, attorney’s fees, \nreimbursements, and all other benefits to which she may be entitled from 20 \nSeptember 2021 to a date yet to be determined. She reserves all other issues. \n \n The respondents contend: \n \nClaim No H109553- . . . that the statute of limitations has run on the 20 \nSeptember 2021 claim as the last benefits were paid on 10 June 2022. [Her] \nclaim [for additional benefits] was not filed until 1 February 2024. The claim \nis barred and must be dismissed. \n \nClaim No H305845- The 30 August 2023 claimed injury occurred while the \nclaimant was on break and not performing employment services. \nRespondents are not responsible for the payment of any medical or indemnity \nbenefits. \n \n \n \n\nLOUDERMILK- H109553 & H305845 \n3 \n \n \nFINDING OF FACTS AND CONCLUSIONS OF LAW \n \n Having reviewed the record as a whole, including the evidence summarized \nbelow, and having heard testimony from the witnesses, observing their demeanor, I make \nthe following findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over these claims. \n \n2. The stipulations as set forth above are reasonable and are hereby accepted.\n1\n \n \n3. The statute of limitations bars any claim for additional benefits on Claim No \nH109553 relating to the claimant’s accepted compensable shoulder injury of \n20 September 2021. \n \n \n1\n At the beginning of the hearing, the claimant attempted to raise nonpayment of her \naccepted PPD rating as an issue. See also, FN2. The respondents objected to her suddenly-\nasserted claim of nonpayment as not being properly before the Commission. A brief \ndiscussion was framed around whether the claimant should be allowed to litigate an \nuntimely raised issue. The parties did not, however, discuss the matter in the context of the \ncompleted PPD payment already being an agreed-to stipulation. See Stipulation No 3. “A \nstipulation is an agreement between attorneys respecting the conduct of the legal \nproceedings.” Ark. Dept. of Corr. V. Jackson, 2019 Ark. App. 124, 571 S.W.3d 539 (citing \nDinwiddie v. Syler, 230 Ark. 405, 323 S.W.2d 548 (1959)). Parties are generally bound by \ntheir stipulations. Dempsey v. Merchants Natl. Bank of Ft. Smith, 292 Ark. 207, 729 S.W.2d \n150 (1987). Still, the Court has recognized that the Commission has the discretion to permit \nthe withdrawal of a stipulation. See, e.g., Jackson, supra. The Court of Appeals has stated, \nhowever, that “elementary principles of fair play” apply in Commission proceedings. Sapp v. \nTyson Foods, 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549. To allow the claimant to \nwithdraw a stipulation without prior notice of her intent to do so would generally violate \nthe notions of fair play. But as noted just above, the claimant did not attempt to raise as an \nissue or argue that she should be allowed to withdraw Stipulation No 3. Conversely, the \nclaimant agreed with the stipulation language as it was read into the record. \n \nJudge:  ... The date of the last benefit paid on that claim was the 10\nth\n of June, 2022, when \nthe PPD rating was paid out.... So, did I read those stipulations accurately, Ms. Brasfield? \nMs. Brasfield:  Yes. \nJudge:  Okay. And, Mr. Wade? \nMr. Wade:  Yes, Your Honor. \n[TR at 6-7.] \n \nIt would be improper for me to now raise the matter sua sponte. Stipulation No 3 is accepted \nas fact, accordingly.  \n\nLOUDERMILK- H109553 & H305845 \n4 \n \n4. On Claim No H305845, the claimant has proven by a preponderance of the \nevidence that she suffered a compensable injury to her right hand on 30 \nAugust 2023. \n \n5. On Claim No H305845, the claimant has failed to prove by a preponderance of \nthe evidence that she suffered a compensable injury to her left knee on 30 \nAugust 2023. \n \n6. The claimant has failed to prove by a preponderance of the evidence that she \nis entitled to an attorney’s fee on these claims. \n \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \nThe record consists of the hearing transcript and the following exhibits: \nCommission’s Exhibit No 1 (the 19 December 2024 Prehearing Order); Respondents’ Exhibit \nNo 1 (one index page and five pages of non-medical records); and Respondents’ Exhibit No 2 \n(one index page and 57 pages of medical records). The claimant testified on her own behalf \nand called coworkers Mr. Seneca Fluker and Mr. Gregory Coleman. The respondents called \n\nLOUDERMILK- H109553 & H305845 \n5 \n \nMr. Joe Kent Lockwood, Vice President of Finance and Administration at Respondent \nProducers Rice Mill. \nHearing Testimony \n The claimant is sixty-six years old and retired. At the time relevant to her claims, \nshe was working for the respondent-employer as a product labeler. With respect to Claim No \nH109553, she testified that she was injured when a piece of equipment fell onto her upper \nbody on 20 September 2021. The respondents accepted her claim of a compensable left \nshoulder injury and began providing benefits, including surgery and indemnity payments. \nThe claimant was eventually released back to work without restrictions. She returned to \nthe same job duties and hours.   \n A four percent PPD rating was accepted by the respondents and, per Stipulation No \n3, paid by the respondents; but the claimant testified that she did not receive the lump-sum \npayment for that rating.\n2\n The rating was based on a Functional Capacity Evaluation (FCE) \nperformed on 1 June 2022. [Resp. Ex. No 2 at 7-33.] The claimant, however, testified that \nshe did not participate in any sort of evaluation: “Didn’t do none of that... I ain’t been to \nLittle Rock for this... None of that... No, sir. That’s the God’s heaven truth.” [TR at 70-71.] \n With regard to Claim No H305845, the claimant testified that she fell and injured \nherself at work on 30 August 2023. \nQ:  Okay. And what happened that day. \n \n2\n At the beginning of the hearing, the claimant attempted to raise nonpayment of her \naccepted PPD rating as an issue. The respondents objected to a new issue being added as \nuntimely and not properly before the Commission. Even if the issue was properly before the \nCommission, they argued, the statute would still bar the claim as beyond the limitations \nperiod. The claimant made no attempt to raise nonpayment of the accepted PPD rating \nduring the prehearing telephone conference. Nor did she attempt to raise it during her \ndeposition in this case. The respondents, therefore, had no opportunity to conduct discovery \non that issue. I am declining to address the matter as an issue that was ripe for litigation at \nthe hearing. The issue has been reserved. \n\nLOUDERMILK- H109553 & H305845 \n6 \n \nA:  Well, I was getting ready to go to lunch, me and my co-worker, you know, \nlike, we was walking side-by-side. \n. . .  \nAnd we were just walking along and all of a sudden I just—my foot got hung \nup and I think, there was plastic—a green—some green ties that was on the \nfloor. You know, we was talking and going on and I didn’t see it. \nQ:  Sure. And so what happened? \nA:  I tripped. My feet got tangled up in the green tie and that plastic. \nQ:  Okay. And did you fall? \nA:  Yes, ma’am. \nQ:  Okay. Did you fall hard? \nA:  Yes, I did. \nQ:  How hard did you fall? \nA:  I fell hard, so that it hurt my knee, my left knee and my right hand too. \nThe pictures show this. I couldn’t even make a fist for a long time. It was \nswollen. \nQ:  And during—when you were walking and you tripped, where were you \ngoing? \nA:  We was getting ready to go to lunch. I had to go leave my work area to \nwalk up front to go in the break area and locker room to clock out. \nQ:  Had you clocked out? \nA:  No, ma’am. \nQ:  Okay. \nA:  I hadn’t. \nQ:  Are you required to clock out, before you go to lunch? \nA:  Yes, we are. \nQ:  Okay. What happens if you don’t clock out? \nA:  You can get wrote up for being—not clocking out. \nQ:  Okay. And so it was one of your job duties to clock out, before you went to \nlunch? \nA:  Yes, we must clock out. \n \n[TR at 25-27.] \n \n The claimant further testified that she reported the injury to her supervisor and \nthat he had her fill out some paperwork about the incident. She sought treatment for some \ntime, until a requested MRI was denied. Her right hand was swollen and bruised, she said, \nto the point that it was difficult to make a fist. The claimant said that she is right-handed, \nso her injury made it difficult to do daily activities. She experienced pain, numbness, and \ntingling. \nQ:  And what was your pain level in your hand? \nA:  If it—if – if the rating could be a hundred, it would be a hundred. \n \n\nLOUDERMILK- H109553 & H305845 \n7 \n \n[TR at 32.] \n According to the claimant, her daughter helped her around the house during that \ntime. She also testified that her knee was swollen and that she could not bend it. “And now, \nit still give me problems, ‘cause for me to get on my knees to pray, I can’t do that right now. \nI can’t do it, ‘cause my knee hurts.” [TR at 32-33.] Her doctor prescribed some pain \nmedication,\n3\n but she continues to have problems. “My knee mostly. My hand, sometimes it \ngive me (sic) a little problem, but me knee,” she said. [TR at 34.] \n The claimant testified that Dr. Raymond Coker took her off work when she \npresented for care the day after her fall. She could not recall how long Dr. Coker took her \noff work, but testified that she did not return to work afterwards her initial visit with him. \nShe retired and began drawing a pension. \n On cross-examination, the claimant acknowledged a history of arthritis in her knees \nand hands. She testified that she was being prescribed Methotrexate for her arthritis \ntrouble for some time before the alleged injuries related to the present claims.  \n The claimant also acknowledged that she underwent surgery for her accepted \nshoulder injury in November of 2021 and that she was released back to work in May of \n2022. She returned to work without restrictions following her release; and she was able to \nperform the same job duties as before the injury. \n The claimant was reluctant to confirm her signature on the Form C that was filed on \nher behalf (and signed by her attorney) related to Claim No H109553, but she acknowledged \nthat the form represented signatures dated 23 January 2024. [Resp. Ex. No 1 at 4.] The \nform is file-marked as received by the Commission on 1 February 2024.  \n \n3\n The records relating to this treatment were not offered into evidence. \n\nLOUDERMILK- H109553 & H305845 \n8 \n \n With regard to Claim No H305845, the claimant testified that she was a few feet \nfrom her work station when she fell on 30 August 2023. After reporting her fall, she went \nhome for lunch and then returned to complete her shift, although she was in pain at the \ntime. The claimant recalled seeing Dr. Coker for her injuries two or three times. At her first \nvisit, he took her off work from 31 August 2023 until 5 September 2023. Dr. Coker did not \norder any additional time off work; and no other provider ordered her off work after that \ninitial week’s time. She testified that she sought additional treatment from her primary \ncare physician, a Dr. Yelvington; but no records reflecting such treatment were introduced. \n The claimant confirmed that since retiring from the respondent-employer, she has \nnot sought any work. She collects a retirement pension and Social Security retirement \nbenefits. The claimant stated that she would have continued seeking treatment for her \nhand and knee if she had known that she had access to health insurance coverage after she \nretired. \n After completing her testimony, the claimant called two co-workers who witnessed \nthe accident related to her accepted shoulder injury in Claim No H109553. They did not \ntestify about the alleged circumstances of her fall on 30 August 2023. \n The respondents then called Mr. Joe Kent Lockwood, who serves as the Vice \nPresident of Finance and Administration at Respondent-employer Producers Rice Mill. He \nhas worked at Producers for 38 years and testified that he was aware of both of the claims \nin this matter. With regard to her fall on 30 August 2023, he testified that video footage he \nreviewed at the time showed the incident occurred around noon and that she was walking \nfrom her work station to the breakroom after her production line shut down for lunch. \nEmployees are free to take lunch wherever they choose during the lunch break. He denied \nthat she was “in any way benefitting Producers at the time she fell.” [TR at 86.] \n\nLOUDERMILK- H109553 & H305845 \n9 \n \n On cross-examination, Mr. Lockwood testified that the production line’s lunch time \nwould vary on any given day, but that it would generally run when the area supervisor \nrang a bell and shut down the line around noon.  \nQ:  Okay. And is clocking out a requirement? \nA:  Yes, ma’am. \nQ:  So is there a penalty, if individuals don’t clock out? \nA:  Yes. \nQ:  What’s the penalty? \nA:  It would depend on—it would be a verbal warning first, and then a red \nwarning. \n. . . \nQ:  Okay. So that’s something that they’re required to do, to clock out to walk \nfrom wherever they are in the building to the break room and to clock out, \ncorrect? \nA:  Yes, ma’am. \n. . .  \nQ:  Was she on the clock? All you have to say is yes or no. That’s all I need. \nYes or no, was she on the clock? \nA:  Yes, she was on the clock. \nQ:  So you were still paying her? \nA:  Yes. \nQ:  And you, typically, pay people until they clock out, correct? \nA:  (Nodding head up and down.) \nQ:  Is that correct? You need to say yes or no. \nA:  That’s correct. \n \n[TR at 88-90.] \n The claimant briefly returned to the witness stand to state that after falling, she \nwent to her supervisor’s office to report the incident. She completed the necessary \npaperwork in the office before clocking out and leaving for her lunch that day. \nMedical and Documentary Evidence \n The respondents submitted a report on the benefits paid to the claimant. According \nto that report, a lump sum payment for permanent partial disability benefits was issued to \nthe claimant in the amount of $4,750.58 on 10 June 2022. [Resp. Ex. No 1.] \n\nLOUDERMILK- H109553 & H305845 \n10 \n \n The Form C associated with Claim No H109553 indicates a shoulder injury. The \nform was signed by the claimant’s counsel on 23 January 2024 and shows a filing date of 1 \nFebruary 2024. [Id at 4.] \n The Form C associated with Claim No H305845 lists the date of injury as 30 August \n2023 and states that she fell “on both her knees and hand.” The form was signed by the \nclaimant’s counsel on 8 February 2024 and shows a filing date of the same day. [Id. at 5.] \n The respondents also submitted medical records relating to both claims. On 28 April \n2022, the claimant saw Dr. David Wassell for follow-up after surgical repair of her accepted \ncompensable shoulder injury in Claim No H109553. His assessment noted rheumatoid \narthritis involving multiple joints and a history of taking Methotrexate. Dr. Wassell stated, \n“At this point I feel that we are basically at Maximum Medical Improvement (MMI).” He \nordered an FCE and anticipated closing her case after an additional visit following the \nFCE. [Resp. Ex. No 2.] \n Claimant’s FCE was conducted on 1 June 2022. She showed reliable effort at the \ntime and was ultimately assigned a four percent (4%) whole-body impairment rating for her \naccepted compensable shoulder injury. [Id. at 7-33.] \n The claimant returned to Dr. Wassell on 23 June 2022. He found her to be at MMI \nat that time and agreed with the four percent (4%) impairment rating determined at the \nFCE. [Id. at 39.] \n The claimant first sought care related to Claim No H305845 on 31 August 2023. She \nreported a history of arthritis. Dr. Raymond Coker was the attending physician that treated \nher. The notes from that visit state: \nREASON FOR VISIT \nPt. reports fall happened yesterday at work. \nPt. reports tripped over packing plastic/material and fell. Pt. reports left knee \nand both hands are sore and painful today. Edema noted in right hand and \nwrist. Pt. unable to move wrist. \n\nLOUDERMILK- H109553 & H305845 \n11 \n \n \nPHYSICAL EXAM \nRight hand is swollen with tenderness to manipulation of the right wrist. Left \nhand is mild edema. No deformities of either place. Left knee has a little \ntenderness anteriorly but no deformity or swelling. \n \nASSESSMENT \nAcute nasopharyngitis \nSprain of left hand, initial encounter \nSprain of right wrist, initial encounter \nContusion of left knee, initial encounter \nNo fractures. She [has] arthritis in her wrist, hand and knee. Continue same \nmedications which consist of gabapentin, tizanidine and hydrocodone. She \ncan add some NSAIDs and/or extra Tylenol. Workmen’s Comp. Form 3 \ncompleted. Off work until Tuesday, 9/5/2023 for follow-up and reevaluation. \nHer hand is quite swollen, and she would be unable to do her job until at \nleast that time. \n \nMEDICATIONS ADMINISTERED \nKetorolac tromethamine 60 mg \n \n[Resp. Ex. No 2 at 51-57.] \n The Xray reports from that visit include: \nRIGHT WRIST RADIOGRAPHS \n \nIMPRESSION:  Minimal lateral wrist osteoarthritic degenerative change \nwith no evidence for acute injury. There is minimal dorsal swelling. \n \nLEFT KNEE RADIOGRAPHS \n \nIMPRESSION:  Degenerative changes as described with no acute finding \nvisible. \n \n[Resp. Ex. No 2 at 42-43.] \nDISCUSSION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of the witnesses and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999). A \nclaimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \n\nLOUDERMILK- H109553 & H305845 \n12 \n \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness, \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nI do not find the claimant to be a very credible witness. Besides that she raised at \nthe beginning of the hearing, and without any prior notice, her sudden disagreement with \nthe stipulated fact that the respondents paid her PPD rating on 10 June 2022 [Stipulation \nNo 3], she also refused to acknowledge that she underwent an FCE on 1 June 2022. \nNotwithstanding her proclaiming the “God’s heaven truth” that she never participated in \nthe evaluation, the record plainly shows that she did so in Little Rock on that day. \nSimilarly, the payment register provided by the respondents [Resp. Ex. No 1 at 3] indicates \na lump-sum payment on the PPD rating being made consistent with the stipulated facts. \nParadoxically, she did not appear insincere in her testimony around these matters. I find \nher nonetheless to not be credible in these regards. \nClaim No H109553 \n The claimant seeks additional benefits\n4\n on this claim associated with her accepted \ncompensable left shoulder injury from September of 2021. The respondents have raised the \nstatute of limitations as a bar for any claim for additional benefits on this claim. Claims for \nadditional benefits are governed by A.C.A. § 11-9-702(b)(1), which provides: \nIn cases in which any compensation, including disability or medical, has been \npaid on account of injury, a claim for additional compensation shall be barred \n \n4\n The Form C erroneously indicates that this is a claim for initial benefits. It is clearly not. \n\nLOUDERMILK- H109553 & H305845 \n13 \n \nunless filed with the commission within one (1) year from the date of the last \npayment of compensation or two (2) years from the date of the injury, \nwhichever is greater. \n \nThe claimant has the burden to prove that she acted within the time allowed for \nfiling a claim for additional benefits. White Cty. Judge v. Menser, 2020 Ark. 140, 597 S.W.3d \n640. Here, the claimant was injured on 20 September 2021. The statutory period therefore \nextends two years from that date, or until 20 September 2023. This is the operative date \nbecause it is later than the one-year period following the last payment of either medical or \nindemnity benefits. See Wynne v. Liberty Trailer & Death & Permanent Total Disability \nTrust Fund, 2022 Ark. 65, 641 S.W.3d 621; Cosner v. C&J Forms & Labels Co., 2021 Ark. \nApp. 453, 2021 Ark. App. LEXIS 473. Any claim filed after that date is barred as untimely. \nThe Form C seeking benefits on this claim was not filed until 1 February 2024, well after \nthe expiration of this period. The claimant failed to prove by a preponderance of the \nevidence that her claim for additional benefits on Claim No H109553 was timely filed. This \nclaim is, therefore, barred by the statute of limitations. \nClaim H305845 \n The respondents denied this claim for initial benefits in its entirety. The claimant \nseeks a finding of compensability associated with alleged injuries by specific incident to her \nleft knee and right hand. The claimant fell while at work on 30 August 2023. The \nrespondents argue that her fall occurred outside of the course and scope of the claimant’s \nemployment and have denied liability. \n Under Arkansas’ Workers’ Compensation laws, a worker has the burden of proving \nby a preponderance of the evidence that she sustained a compensable injury as the result of \na workplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). A compensable injury must be \nestablished by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-\n\nLOUDERMILK- H109553 & H305845 \n14 \n \n102(4)(D). Objective medical findings are those findings that cannot come under the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i).  \n The claimant alleges that her injuries occurred by specific incident. The claimant \nmust establish four (4) factors by a preponderance of the evidence to prove a specific \nincident injury: (1) an injury occurred that arose out of and in the course of his employment; \n(2) the injury caused internal or external harm to the body that required medical services or \nresulted in disability or death; (3) the injury is established by medical evidence supported \nby objective findings, which are those findings which cannot come under the voluntary \ncontrol of the patient; and (4) the injury was caused by a specific incident and is identifiable \nby time and place of occurrence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, \n938 S.W.2d 876 (1997). If a claimant fails to establish by a preponderance of the evidence \nany of the above elements, compensation must be denied. Id. \nThe initial question is whether any alleged injuries sustained as a result of her fall \nare compensable because she was away from her work station and on her way to clock out \nfor lunch when she fell. The respondents argue that under these circumstances she cannot \nsatisfy the first factor listed above. \n In Hudak-Lee v. Baxter County Reg. Hosp., 2011 Ark. 31, 378 S.W.3d 77, the \nArkansas Supreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and \nin the course of employment. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2009). \nA compensable injury does not include an injury that is inflicted upon the \nemployee at a time when employment services are not being performed. Ark. \nCode Ann. § 11-9-102(4)(B)(iii) (Supp. 2009). The phrase \"in the course of \nemployment\" and the term \"employment services\" are not defined in the \nWorkers' Compensation Act. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, \n284 S.W.3d 57 (2008). Thus, it falls to the court to define these terms in a \nmanner that neither broadens nor narrows the scope of the Act. Id. \n \n\nLOUDERMILK- H109553 & H305845 \n15 \n \nAn employee is performing employment services when he or she is doing \nsomething that is generally required by his or her employer. Id.; Pifer v. \nSingle Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). We use the same \ntest to determine whether an employee is performing employment services as \nwe do when determining whether an employee is acting within the course \nand scope of employment. Jivan v. Econ. Inn & Suites, 370 Ark. 414, 260 \nS.W.3d 281 (2007). The test is whether the injury occurred within the time \nand space boundaries of the employment, when the employee was carrying \nout the employer's purpose or advancing the employer's interest, directly or \nindirectly. Id. In Conner, 373 Ark. 372, 284 S.W.3d 57, we stated that where \nit was clear that the injury occurred outside the time and space boundaries of \nemployment, the critical inquiry is whether the interests of the employer \nwere being directly or indirectly advanced by the employee at the time of the \ninjury. Moreover, the issue of whether an employee was performing \nemployment services within the course of employment depends on the \nparticular facts and circumstances of each case. Id. \n \n The respondents argue, essentially, that the claimant was not performing \nemployment services at the time that she fell because her work line was shut down for \nlunch. I disagree. Both the claimant and Mr. Lockwood testified that the claimant was \nobligated to clock out at a designated area before taking her lunch break and that she was, \nin fact, still on the clock at the time of her fall. An employee failing to clock out for a lunch \nbreak would be subject to the respondent-employer’s progressive discipline policy. \nProducers thus benefits from and advances its interests by maintaining supervisory control \nover their employees between the time that the production lines stop for lunch and the time \nthat their employees actually clock out and begin their lunch break. The respondent-\nemployer similarly benefits from and advances its interests by exercising supervisory \ncontrol over its employees between the time that they clock in and the time that the \nproduction line actually starts running once everyone is at his or her work station. \n The circumstances in this case all point towards finding that the claimant was \nperforming employment services at the time of her fall. She was still on the employer’s \npremises when she fell. She was acting in line with the employer’s policy directives when \n\nLOUDERMILK- H109553 & H305845 \n16 \n \nshe fell. And she was still on the clock when she fell. She remained on the clock, even, while \nshe completed the required post-incident paperwork with her supervisor before eventually \nclocking out and leaving for her lunch break. For these reasons, I find that the claimant \nwas in the time and space boundaries of her employment and was benefiting her employer \ndirectly or indirectly at the time of her fall. She was thus performing employment services \nwhen she fell. \n I must next address whether she met her burden on the remaining three factors for \nproving compensable injuries by specific incident with regard to her claimed left knee and \nright hand injuries.  \n Right Hand Injury \n The claimant has proven by a preponderance of the evidence that she sustained a \ncompensable injury to her right hand. The claimant testified that the fall caused her \nsignificant pain and swelling in her right hand. She had difficulty performing daily \nactivities with her right hand for some time. The medical records show that swelling was \nremarked in the Xray report around the right wrist and hand and that she was unable to \nmove her right wrist. Dr. Coker noted, “Off work until Tuesday, 9/5/2023 for follow-up and \nreevaluation. Her hand is quite swollen and she would be unable to do her job until at least \nthat time.” (Emphasis added.) Swelling can constitute an objective finding. See Ellis v. J.D. \n& Billy Hines Trucking, Inc., 104 Ark. App. 118, 289 S.W.3d 497 (2008). Ketorolac was \nadministered for pain. She was assessed with a right wrist sprain and was to supplement \nher then-current medications (which included hydrocodone) with additional NSAIDs or \nTylenol for pain as needed. Additional treatment, or at least reevaluation, was anticipated \nby Dr. Coker. This injury thus caused physical harm to her body and required medical \nservices. Also, it was caused by an incident that is identifiable by the place and time of \noccurrence: her tripping over some plastic on the facility floor while on her way to clock out \n\nLOUDERMILK- H109553 & H305845 \n17 \n \nbefore taking lunch. The evidence thus preponderates in favor of a finding that the \nclaimant suffered a compensable injury to her right hand.  \n Left Knee Injury \n The claimant reported a history of arthritis when she was seen by Dr. Coker. She \nalso testified that she had a history of the same, including in her knees, and that she was \nprescribed Methotrexate for the problem. While she reported her left knee being sore the \nday after the fall, the records do not show objective findings to support a compensable \ninjury. The exam notes indicate that her knee had “a little tenderness anteriorly but no \ndeformity or swelling.” The Xray report for her knee noted only degenerative changes and \nno evidence of a fracture or injury.  \n In finding that the medical evidence lacks objective findings of a left knee injury, I \nam aware that the records of Dr. Coker lists a diagnosis of “contusion of left knee....” \nAccording to DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 414 (30\nth\n ed. \n2003)(hereinafter “DORLAND’S”), a “contusion” is defined as “an injury of part without a \nbreak in the skin and with a subcutaneous hemorrhage. Called also bruise.” As the \nArkansas Court of Appeals pointed out in Ellis, supra, “[o]ur cases, moreover, use the words \n‘contusion’ and ‘bruise’ interchangeably.” But as cited above, Dr. Coker’s examination notes \ndo not reflect that he saw any bruise or mark on the claimant’s left knee. He noted only \nthat the knee had “a little tenderness anteriorly but no deformity or swelling. (Emphasis \nadded.) In Ellis, supra, the Court of Appeals held that a contusion diagnosis is an objective \nfinding unless other evidence indicates that it is not objective. See also TJX Cos. V. Lopez, \n2019 Ark. App. 233, 574 S.W.3d 230. I find that the narrative portion of the record and its \nabsence of notes on a left knee injury carry greater weight than the diagnosis coding in the \nrecord that appears without any explanation of evaluative impressions. The Commission is \nauthorized to accept or reject a medical opinion and is authorized to determine its medical \n\nLOUDERMILK- H109553 & H305845 \n18 \n \nsoundness and probative value. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 \nS.W.3d 878 (2002).  I, therefore, find that the persuasive evidence establishes that the \ncontusion diagnosis is not an objective finding. Because of the Claimant’s failure to show \nthat she has an objective finding of a left knee injury, she cannot establish that this alleged \ninjury is compensable. \nATTORNEY’S FEE \nThe claimant has proven by a preponderance of the evidence that she sustained a \ncompensable injury on 30 August 2023 to her right hand. Because she has not proven by a \npreponderance of the evidence that she is entitled to any indemnity benefits that would \nprovide for an attorney’s fee, her request for a fee must be denied. \nCONCLUSION \n The statute of limitations bars any claim for additional benefits on Claim No \nH109553. That claim is denied and dismissed, accordingly. The claimant has proven by a \npreponderance of the evidence that she suffered a compensable injury to her right hand on \n30 August 2023 on Claim No H305845. She has failed, however, to prove that she suffered a \ncompensable injury to her left knee on that claim. \n SO ORDERED. \n       ______________________________________ \n       JayO. Howe \n       Administrative Law Judge","textLength":35903,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM Nos H109553 & H305845 VIVIAN LOUDERMILK, EMPLOYEE CLAIMANT PRODUCERS RICE MILL, INC., EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO., CARRIER/TPA RESPONDENT OPINION & ORDER FILED 12 AUGUST 2025 Heard before Arkansas Workers’ Compensation Commission Administrative ...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:2"],"injuryKeywords":["shoulder","knee","back","wrist","sprain","fracture"],"fetchedAt":"2026-05-19T22:37:18.628Z"},{"id":"alj-H405036-2025-08-12","awccNumber":"H405036","decisionDate":"2025-08-12","decisionYear":2025,"opinionType":"alj","claimantName":"Kelly Wolf","employerName":"Pea Ridge Schools","title":"WOLF VS. PEA RIDGE SCHOOLS AWCC# H405036 August 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WOLF_KELLY_H405036_20250812.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WOLF_KELLY_H405036_20250812.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H405036 \n \nKELLY WOLF, Employee CLAIMANT \n \nPEA RIDGE SCHOOLS, Employer RESPONDENT \n  \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT \n \n OPINION/ORDER FILED AUGUST 12, 2025  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Springdale, \nWashington County, Arkansas. \n \nClaimant represented  by MARK  ALAN  PEOPLES,  Attorney, Little  Rock,  Arkansas;  although \nnot present at hearing. \n \nRespondent represented by CAROL LOCKARD WORLEY, Attorney, Little Rock, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn August  6,  2024, Mark  Peoples, claimant’s attorney, filed a  Form AR-C  requesting \nvarious  compensation  benefits in  which she alleged  injuries  to her right  shoulder;  however,  no \nhearing was requested. No further action was taken in this claim. \nOn May 8, 2025, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for July  8,  2025.  Notice  of  that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on May  16,  2025. \nThat notice was returned by the United States Postal Department with the notation, “Return to \nSender.  No Such Number.  Unable to Forward.”  \nMr. Peoples indicated by email dated May 16, 2025, that he would waive his appearance \nat  the  hearing  and  further  indicated  that he had  no  objection  to  the  Motion  to  Dismiss \n“WITHOUT prejudice.”    \n\nWolf – H405036 \n2 \n \nPursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule  099.13),  the \nCommission may enter an order dismissing a claim for want of prosecution.  After my review of \nthe respondent’s Motion to Dismiss, Mr. Peoples’ response thereto that he had no objection to \nthe Motion to Dismiss without prejudice, and the claimant’s failure to appear at the scheduled \nhearing,  as  well  as  all  other  matters  properly  before  the  Commission,  I  find  that  claimant  has \nfailed to prosecute this claim. Therefore, this claim is dismissed without prejudice.   \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2323,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H405036 KELLY WOLF, Employee CLAIMANT PEA RIDGE SCHOOLS, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT OPINION/ORDER FILED AUGUST 12, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Springdale, Washington County, Arkans...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:37:20.700Z"},{"id":"alj-H301329-2025-08-11","awccNumber":"H301329","decisionDate":"2025-08-11","decisionYear":2025,"opinionType":"alj","claimantName":"Patrick Burton","employerName":"Russellville Hauling","title":"BURTON VS. RUSSELLVILLE HAULING AWCC# H301329 August 11, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BURTON_PATRICK_H301329_20250811.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BURTON_PATRICK_H301329_20250811.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H301329  \n \nPATRICK BURTON, Employee CLAIMANT \n \nRUSSELLVILLE HAULING, Employer RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA, Carrier RESPONDENT \n \n \n \n OPINION FILED AUGUST 11, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nRussellville, Pope County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On  October  25,  2023,  Form  AR-C  was  filed  by  attorney  Laura  Beth  York  on \nclaimant’s behalf alleging a compensable injury on January 11, 2023. On March 20, \n2024,  the  Full  Commission  entered  an  order  granting attorney  York’s  Motion  to \nWithdraw as Counsel. Respondent subsequently filed a Motion to Dismiss on April 29, \n2024.  \n Before the Motion to Dismiss could be addressed, attorney Eddie Walker filed a \nnew  AR-C on June 26, 2024, regarding claimant’s alleged work injury of January 11, \n2023. A prehearing conference was conducted and a hearing scheduled for September \n26, 2024. The hearing was continued at the parties’ request for the purpose of obtaining \n\nBurton – H301329 \n \n-2- \nadditional  evidence.  When  no  further  hearing  was  requested,  respondent  filed  its \nsecond Motion to Dismiss on February 18, 2025. \n Thereafter,  on  April  2,  2025,  Attorney  Walker  filed  a  Motion  to  Withdraw.  This \nmotion  was  granted  on  May  7,  2025,  and  on  that  same  date  respondent  filed  its  third \nMotion to Dismiss.  \n A hearing on respondent’s Motion to Dismiss was scheduled for July 31, 2025, \nand  notice of the  hearing  was  sent  to  claimant  by  certified mail and  delivered on  June \n10,   2025.   Claimant   did   not   appear   at   the   hearing   and   has   not   responded   to \nrespondent’s motion. \n Pursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule \n099.13), the Commission may enter an order dismissing a claim for want of prosecution.  \nAfter my review of the Respondent’s Motion, the Claimant’s failure to respond thereto, \nand all other matters properly before the Commission, I find that Claimant has failed to \nprosecute this claim. Therefore, this claim is dismissed without prejudice.  \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2552,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H301329 PATRICK BURTON, Employee CLAIMANT RUSSELLVILLE HAULING, Employer RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA, Carrier RESPONDENT OPINION FILED AUGUST 11, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Russellville, Pope County, ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:14.467Z"},{"id":"alj-H406302-2025-08-11","awccNumber":"H406302","decisionDate":"2025-08-11","decisionYear":2025,"opinionType":"alj","claimantName":"Tc Gilmore","employerName":"Tyson Sales & Distribution, Inc","title":"GILMORE VS. TYSON SALES & DISTRIBUTION, INC. AWCC# H406302 August 11, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GILMORE_TC_H406302_20250811.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GILMORE_TC_H406302_20250811.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H406302 \n \nTC GILMORE, Employee CLAIMANT \n \nTYSON SALES & DISTRIBUTION, INC., Employer RESPONDENT \n \nTYNET CORP., Carrier RESPONDENT \n \n \n \n OPINION FILED AUGUST 11, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents  represented  by J.  MATTHEW  MAULDIN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On  September  27,  2024,  claimant  filed  Form  AR-C  requesting  compensation \nbenefits. Since the filing of that claim no further action has been taken by the claimant to \nproceed. As a result, respondent on May 16, 2025, filed a Motion to Dismiss. A hearing \nwas  scheduled  on  respondent’s  motion  for  July  23,  2025.  Notice  of  the  scheduled \nhearing  was  sent  to  claimant  by  certified  mail  and  was  delivered  on  June  14,  2025. \nClaimant did not appear at the hearing and has not responded to respondent’s Motion \nto Dismiss. \n\nGilmore – H4063002 \n \n-2- \n Pursuant  to  11  CAR  §25-110(d)  (previously  codified  as  Commission  Rule \n099.13), the Commission may enter an order dismissing a claim for want of prosecution.  \nAfter my review of the Respondent’s Motion, the Claimant’s failure to respond thereto, \nand all other matters properly before the Commission, I find that Claimant has failed to \nprosecute this claim. Therefore, this claim is dismissed without prejudice.  \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":1765,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H406302 TC GILMORE, Employee CLAIMANT TYSON SALES & DISTRIBUTION, INC., Employer RESPONDENT TYNET CORP., Carrier RESPONDENT OPINION FILED AUGUST 11, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas. Cl...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:16.526Z"},{"id":"alj-H403441-2025-08-08","awccNumber":"H403441","decisionDate":"2025-08-08","decisionYear":2025,"opinionType":"alj","claimantName":"Walter Lanigan","employerName":"Crain Ford Of Little Rock LLC","title":"LANIGAN VS. CRAIN FORD OF LITTLE ROCK LLC AWCC# H403441 August 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Lanigan_Walter_H403441_20250808.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Lanigan_Walter_H403441_20250808.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H403441 \n \n \nWALTER P. LANIGAN, EMPLOYEE CLAIMANT \n \nCRAIN FORD OF LITTLE ROCK LLC, \nSELF-INSURED EMPLOYER RESPONDENT \n \nRISK MGMT. RESOURCES, \nTHIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED AUGUST 8, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on August 7, 2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Melissa  Wood,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on August  7,  2025, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was Respondents’ Exhibit 1, forms, pleadings, reports, \nand correspondence related to this claim, consisting of one index page and eight \nnumbered pages thereafter.  Also,  in  order  to  address  adequately  this  matter \nunder  Ark.  Code  Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct \nthe hearing . . . in a manner which best ascertains the rights of the parties”), and \nwithout   objection,   I   have   blue-backed   to   the   record   documents   from   the \n\nLANIGAN – H403441 \n \n2 \n \nCommission’s file on the claim, consisting of 16 pages.  In accordance with Sapp \nv.  Tyson  Foods,  Inc.,  2010  Ark.  App.  517,  2010  Ark.  App.  LEXIS 549,  these \ndocuments have been served on the parties in conjunction with this opinion. \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on May  28,  2024,  Claimant \npurportedly  suffered  an  injury  to  his right  shoulder at  work  on March  15, 2024, \nwhen he slipped and fell on a wet floor while rolling a trash can.  According to the \nForm  AR-2  that  was  filed  on June 3, 2024, Respondents  accepted  the injury  as \ncompensable and paid medical and indemnity benefits pursuant thereto. \n On September 16,   2024, through   then-counsel Mark   Alan   Peoples, \nClaimant filed  a  Form  AR-C, requesting  the  full  range  of additional  benefits and \nalleging that he actually injured both his right shoulder and upper extremity in the \naforementioned incident.  Counsel in an email accompanying this filing stated that \nhe  was  “not  asking  for  a  hearing.”   In  response, Respondents wrote  the \nCommission  on  September 17,  2024; confirming  that  they  had  accepted  both \ninjuries. \n On October 29, 2024, Peoples moved to withdraw from his representation \nof  Claimant.    In  an  Order  entered  on November  15,  2024, the  Full  Commission \ngranted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until May \n14, 2025.  On that date, Respondents filed the instant motion, asking for dismissal \n\nLANIGAN – H403441 \n \n3 \n \nof  the  claim under Ark.  Code  Ann. § 11-9-702(d)  (Repl.  2012)  and AWCC  R. \n099.13 (now codified at 11 C.A.R. § 25-110(d)).  Therein, they argued that “[m]ore \nthan six months have passed since Claimant filed an AR-C with the Commission   \n.  .  .  [and  that  he]  has  not  sought  any  type  of  bona  fide  hearing  before  the  .  .  . \nCommission over the last six months.”  My  office wrote  Claimant on May  15, \n2025, asking for a response to the motion within 20 days.  The letter was sent by \nfirst class and certified mail to the Little Rock, Arkansas address for him listed in \nthe  file and  on his Form  AR-C.   The  certified  letter was  returned  to  the \nCommission,  unclaimed,  on June  17,  2025; but the  first-class  letter  was  not \nreturned.  Regardless, no response from Claimant to the motion was forthcoming.  \nOn June 5, 2025, a hearing on the Motion to Dismiss was scheduled for July 31, \n2025, at 9:30 a.m. at the Commission in Little Rock.  Due to a conflict, the hearing \nwas rescheduled on June 10, 2025, for August 7, 2025, at 9:30 a.m. at the same \nlocation. The notices were sent to Claimant via first-class and certified mail to the \nsame address as before.  In this instance, he signed for both certified mailings—\non June 9 and 13, 2025, respectively; and the first-class letters were not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the foregoing authorities. \n\nLANIGAN – H403441 \n \n4 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13/11 C.A.R. § 25-110(d). \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under AWCC R. 099.13/11 C.A.R. § 25-\n110(d). \nIII.  DISCUSSION \n AWCC R. 099.13/11 C.A.R. § 25-110(d) reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n\nLANIGAN – H403441 \n \n5 \n \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the April 24, 2025, hearing to argue against its \ndismissal) since the filing of his Form AR-C on July 16, 2024.  Thus, the evidence \npreponderates that dismissal is warranted under the above provision.  Because of \nthis finding, the argument made under § 11-9-702(d) will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nLANIGAN – H403441 \n \n6 \n \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8110,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H403441 WALTER P. LANIGAN, EMPLOYEE CLAIMANT CRAIN FORD OF LITTLE ROCK LLC, SELF-INSURED EMPLOYER RESPONDENT RISK MGMT. RESOURCES, THIRD-PARTY ADM’R RESPONDENT OPINION FILED AUGUST 8, 2025 Hearing before Administrative Law Judge O. Milton Fine II on August 7,...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:37:12.409Z"},{"id":"alj-H406641-2025-08-07","awccNumber":"H406641","decisionDate":"2025-08-07","decisionYear":2025,"opinionType":"alj","claimantName":"Christopher Perrin","employerName":"Wayne Sanderson Farms","title":"PERRIN VS. WAYNE SANDERSON FARMS AWCC# H406641 August 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PERRIN_CHRISTOPHER_H406641_20250807.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PERRIN_CHRISTOPHER_H406641_20250807.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H406641 \n \nCHRISTOPHER PERRIN, EMPLOYEE   CLAIMANT \n \nWAYNE SANDERSON FARMS, EMPLOYER RESPONDENT \n \nBROADSPIRE SERVICES/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED AUGUST 7, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope County, \nArkansas. \n \nClaimant is represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents are represented by ELLI ARCHBOLD, Attorney, Fayetteville, Arkansas and ROBERT \nMITCHALS, Attorney, Fayetteville, Arkansas \n \nOPINION/ORDER \n \n On   October  30,  2024,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on \nSeptember 29, 2024.   Claimant  was represented at the time by Evelyn E. Brooks, who remains his \nattorney of record.    \nOn May 13, 2025, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor  a  hearing  in  that  time.   Claimant’s attorney advised the Commission she would not attend  the \nhearing.  A hearing on respondent’s Motion to Dismiss was scheduled for July 28, 2025.  Notice of \nthe  scheduled  hearing  was  sent  to claimant  by  certified  mail  at  the  last known address  in  the \nCommission’s file.  The notice was delivered to claimant on June 13, 2025.    Claimant did not respond \nto respondent’s motion and did not appear in person at the hearing on July 28, 2025.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nPerrin-H406641 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2235,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H406641 CHRISTOPHER PERRIN, EMPLOYEE CLAIMANT WAYNE SANDERSON FARMS, EMPLOYER RESPONDENT BROADSPIRE SERVICES/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED AUGUST 7, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope County...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:37:06.162Z"},{"id":"alj-H108811-2025-08-07","awccNumber":"H108811","decisionDate":"2025-08-07","decisionYear":2025,"opinionType":"alj","claimantName":"Julie Revels","employerName":"Magnet Cove Elementary School","title":"REVELS VS. MAGNET COVE ELEMENTARY SCHOOL AWCC# H108811 August 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/REVELS_JULIE_H108811_20250807.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REVELS_JULIE_H108811_20250807.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H108811 \n \n \nJULIE REVELS,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nMAGNET COVE ELEMENTARY SCHOOL,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nARKANSAS SCHOOL BDS. ASS’N \nWORKERS’ COMPENSATION TRUST/ \nARK. SCHOOL BDS. ASS’N \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED AUGUST 7, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Wednesday, August 6, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant is represented by the Honorable Gary Davis, Davis Law Firm, Little Rock, Pulaski \nCounty, Arkansas, who waived appearance at the hearing. \n \nThe respondents were represented by the Honorable Melissa Wood, Worley, Wood & Parrish, \nP.A., Little Rock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Wednesday, August 5, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement)  and  Commission Rule  099.13  (2025 Lexis Replacement). This  case  has  been  the \nsubject of a prior hearing and appeal to the Full Commission. In an opinion filed July 16, 2024, \nthe ALJ  ruled in the claimant’s favor on the sole issue of her entitlement to an 11% permanent \n\nJulie Revels, AWCC No. H108811 \n2 \n \nanatomical  impairment  rating  for  her  admittedly  compensable  right  shoulder  injury.  The  Full \nCommission affirmed the ALJ’s opinion in its own opinion filed December 16, 2024.   \n       The  claimant herein has  been  and  remains represented  by  counsel,  Mr.  Gary  Davis, of the \nGary Davis Law Firm in Little Rock. The respondents filed a motion to dismiss this claim without \nprejudice for lack of prosecution (MTD) on June 18, 2025. (Respondents’ Exhibit 1 at 4-5). Both \nthe claimant and her attorney of record were provided due and legal notice of both the respondents’ \nMTD as well as the date, time, and place of the subject hearing. (Commission Exhibit 1). In an \nemail to the Commission dated June 24, 2025, the claimant’s attorney’s office advised the ALJ the \nclaimant had no objection to the respondents’ MTD without prejudice. (Commission Exhibit 2; \nRX1 at 6). \n       The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute her claim or to request a \nhearing in the last six (6) months. And, significantly, she has advised the Commission through her \nattorney that she does not oppose the respondents’ MTD without prejudice filed June 18, 2025. \n\nJulie Revels, AWCC No. H108811 \n3 \n \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of both the respondents’ MTD without prejudice \nfiled with the Commission on June 14, 2025, as well as due and legal notice of the date, \ntime,  and  place of  the  subject  hearing,  the  claimant  advised  the  Commission  in  writing \nthrough her attorney’s office that she does not oppose the subject MTD. \n \n3. The claimant has not requested a hearing within the last six (6) months, and has taken no \nsteps to raise or prosecute any further issues in this claim.  \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwithout prejudice filed June 18, 2025, should be and hereby is GRANTED; and this claim \nis dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. \nCode Ann. Section 11-9-702(a) and (b) and Commission Rule 099.13. \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \n \nMP/mp \n \n                                                                                \n \n\nJulie Revels, AWCC No. H108811 \n4","textLength":5797,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108811 JULIE REVELS, EMPLOYEE CLAIMANT MAGNET COVE ELEMENTARY SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BDS. ASS’N WORKERS’ COMPENSATION TRUST/ ARK. SCHOOL BDS. ASS’N CARRIER/TPA RESPONDENT OPINION FILED AUGUST 7, 2025,","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:37:08.238Z"},{"id":"alj-H303979-2025-08-07","awccNumber":"H303979","decisionDate":"2025-08-07","decisionYear":2025,"opinionType":"alj","claimantName":"Khanh Thotsaraj","employerName":"Trane Commercial Systems","title":"THOTSARAJ VS. TRANE COMMERCIAL SYSTEMS AWCC# H303979 August 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/THOTSARAJ_KHANH_H303979_20250807.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOTSARAJ_KHANH_H303979_20250807.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H303979 \n \n \nKHANH THOTSARAJ, EMPLOYEE CLAIMANT \n \nTRANE COMMERCIAL SYSTEMS, EMPLOYER RESPONDENT \n \nFARMINGTON CASUALTY COMPANY, CARRIER/TPA RESPONDENT \n \n \n OPINION FILED AUGUST 7, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney,  Fort Smith, Arkansas. \n \nRespondents represented by AMY C. MARKHAM, Attorney,  Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  May 12, 2025, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on March 6, 2025, and a pre-hearing order was filed on that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2.  The employee/employer/carrier relationship existed on April 13, 2023. \n3.  The respondents have controverted the claim in its entirety. \n4.  After the hearing, the parties announced an agreement that claimant's average weekly wage \nwas  $987.00,  which  would  entitle  her to  compensation  at  the  weekly  rates  of  $658.00  for \ntemporary total disability benefits and $494.00 for permanent partial disability benefits. \n\nThotsaraj-H303979 \n2 \n \n \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1.      Whether claimant sustained a compensable injury on April 13, 2023. \n2.      If compensable, compensation rates. \n3.      If compensable, whether claimant is entitled to temporary total disability benefits from \nOctober 6, 2023, to a date yet to be determined. \n4. If compensable, whether claimant is entitled to medical benefits. \n5. Attorney’s fees. \nAll other issues are reserved by the parties. \nThe claimant contends that “She sustained a compensable injury to her neck, shoulders and \nback on April 13, 2023. She is entitled to temporary total disability benefits from October 6, 2023, \nuntil a date yet to be determined, except January 4, 2024, the day on which she returned to work and \nwas  only  able  to  work  one  day.  Further,  the  claimant  contends  that  she  is  entitled  to  appropriate \nmedical benefits. The claimant contends that her attorney is entitled to an appropriate attorney’s fee.” \nThe respondents contend that “There is no clear mechanism of injury. There are no objective \nfindings. Claimant did not sustain an injury in the course and scope of her employment.”    \n           From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.  The stipulations agreed to by the parties at a pre-hearing conference conducted on March \n6, 2025, and contained in a pre-hearing order filed on that same date are hereby accepted as fact. \n\nThotsaraj-H303979 \n3 \n \n \n 2.  Claimant has met her burden of proving that she suffered a compensable injury to her neck, \nshoulders and back on April 13, 2023, and is entitled to reasonable and necessary medical treatment \nfor that injury as recommended by her treating physicians \n3. Claimant has met her burden of proving she is entitled to temporary total disability from \nOctober 6, 2023, through May 12, 2025, less the one day she worked on January 4, 2024. \n \n FACTUAL BACKGROUND \n At the beginning of the hearing, claimant requested that the first issue in the prehearing order \nbe amended to  reflect  that  April  13,  2023,  was  her  correct  date  of  injury,  and that issue  should  be \nframed in the alternative to include a gradual onset injury claim from March 2023 until April 13, 2023. \nRespondents did not object to this amendment, and announced it was there to defend the claim as \namended. The first issue in the case was therefore amended to add an alternative claim as to a gradual \nonset injury.  \n The  email  exchange  between  the  Court  and  counsel  regarding  the  stipulated  compensation \nrate is blue backed to the record.  \nHEARING TESTIMONY \n \n Claimant first called her daughter, Cathy Phommasy. She testified that she has lived with her \nmother from at least March 2023 to the date of the hearing, and recalled in March 2023, when her \nmother  lost  the  help  of  one  of  her  coworkers. Before  April  13,  2023,  claimant  was  active  in  the \nneighborhood  and  around  the  house,  but  after  April  13, 2023, her  activity  level  decreased. Ms. \nPhommasy  remembered  that  after  claimant  finished  her  shift  on  April  13,  she  did  not  engage  her \nnormal activity, which was unloading her lunch box, washing dishes, taking a shower, and a few chores \naround the house before she went to bed. After April 13, she came home, unloaded her lunch box, \nshowered and went straight to bed. Ms. Phommasy saw her mother rubbing and massaging her arm \n\nThotsaraj-H303979 \n4 \n \n \nand massaging. Ms. Phommasy attended most of the doctor’s visits with claimant. \n On  cross  examination, Ms.  Phommasy  said  she  did  not  remember  the  exact  day  in  March \n2023, when her mother commented that she had lost her partner. Claimant did tell her daughter that \nthere were other employees available to help her. Ms. Phommasy said that she acted as a translator for \nher mother with the medical providers at times. \n Claimant was called on her own behalf and said that on April 13, 2023, she was injured lifting \nor holding a panel that was too heavy for her. Claimant testified that the panel weighed between 80 \nand 700 pounds. Claimant understood that she was not moving a 700-pound panel by herself but the \none she referred to weighed at least 80 pounds. Before March 2023, she had someone to help her, but \nthat person quit, and no one replaced the employee that left. On April 13, 2023, claimant testified that \nthere was a big panel that she had to move herself, which required lifting and pushing it. She said she \nhad overloaded her body on the heavy items that she had worked by herself. She said during the course \nof the shift on April 13, 2023, she hurt her left side from the neck down. She reported it to  her lead \nperson and supervisor. According to the claimant, the team leader was named Wendy who said that \nshe was busy and the supervisor Jim  Lee, said that he didn’t care that she was hurting, that was her \njob. She  likewise  reported  to Alex  Diaz,  who  was  employed  as  a  safety  supervisor;  he authorized \nmedical treatment for claimant.  \nThe initial medical report says that the claimant was hurting in both her right and left shoulder, \nbut  she  had  never  had  medical  treatment  for  either  shoulder  or  her  neck  prior  to  April  13,  2023. \nClamant says she was eventually placed on restricted activity, to work only with one arm which she \ndid until August 2023, when she was told by someone in the human resources office that she cannot \nwork in her area with one hand. She testified that after two or three months, respondents declined to \npay for any more of her medical treatments and she had to find a doctor on her own. Claimant was \n\nThotsaraj-H303979 \n5 \n \n \nencouraged to file for short-term and long-term disability. On January 4, 2024, claimant attempted to \nreturn to work and only worked for a day. She said that she was using vacation or PTO hours while \nsuch was available. \n Claimant  testified  that  she  understood  some  English  but  would  not  have  fully  understood \nwhat was going on in the hearing and did had difficulty communicating with her doctors.  \n On cross-examination, claimant said that her daughter did go with her to most of her medical \nappointments  and  interpreted  for  her. On  April  13,  2023,  she  was  asked  if  there  was  a  certain \nmovement  that  caused  an  injury. She  said  there  were  no  particular  movement  but  repeating  the \nmovements  through  the  night  is  how  she  was  hurt. Respondents’ attorney had this exchange with \nclaimant: \nQuestion (By Ms. Markham) So if your medical record reflects there was no \nreport of an accident, rather the slow developed symptoms, that is consistent \nwith what you told us here today isn’t it? \n \nAnswer (By the claimant) She says she always tell the doctor that she hurt on \nher left arm neck down. She always tells them. \n \nQ.  But you didn’t tell them it was due to some specific accident; did you? \nA.  She told them that she got hurt in the company.\n1\n \n There  was  then  this  exchange  between  respondents’  attorney  and  claimant  regarding \nClaimant’s Exhibit 1 Page 17. \nQuestion (By Ms. Markham) On this document it says, “The cause of this \nproblem   is complex  involving  multiple  factors.”  Do  you  have  an \nunderstanding of what these multiple factors are describing? \n \nAnswer ( By the claimant) What is it?  \nQ. That is what I am asking you. Do you have an understanding of what this \nmeans by multiple factors? \n \n1\n Rather than translating what claimant said in the first person, the interpreter frequently used the third person \nnarrative. I am repeating the testimony as it appears in the transcript.  \n\nThotsaraj-H303979 \n6 \n \n \n \nA. Yes, she understands. \nQ.  What is your understanding? \nA. I understand that I work with this company, I work hard, I work by myself, \nand I hurt. \n \n When claimant was asked about the increase in her records regarding degenerative changes, \nshe did not know what that meant. Claimant said that surgery had been suggested but she wanted to \nconsider it.  \n On redirect-examination, claimant repeated that the doctors have recommended neck surgery, \nbut she wanted to think about it. She clarified that there was not one specific moment on April 13, \n2023, that her injury occurred but rather there was a big order that she had to lift, push, and move \nfrom table to table, and it slowly got worse during the course of that shift. \n After claimant  rested, respondent called Bradley Daniel, who is the manufacturing engineer \nleader. He was familiar with claimant, as he was serving in that  position in March 2023. He testified \nthat claimant was on the panel line department assembling multiple panels. That job entailed sliding \npanels  from  a  foaming  machine  using  a  conveyor  onto  an  assembly  table. Claimant  would  then \nassemble them using screws and caulking and then attach lifting devises to the panel’s assemblies. \nClaimant used a screw gun, of eight screws per panel and roughly sixty panels per shift in a seven-\nhour period. Mr. Daniel said the panels on average weighed less than a hundred pounds, about fifty \nto seventy-five pounds would be the normal range and he affirmed that seven-hundred pounds were \nnot possible for one panel. \n When asked about claimant’s testimony that she predominantly worked alone in her position \nfrom March until April 13, 2023, Mr. Daniels said that he did not believe that that was accurate. Mr. \nDaniel testified: \n\nThotsaraj-H303979 \n7 \n \n \n “Our policy is that we would never ask our employees to lift something they \nare not comfortable to lift. And she did state the team leader was available to \nhelp  her. The team leader’s role is specifically that,  to  help  members  of  the \nteam  when  needed.  On several  occasions,  I  personally  gave  her  coaching  to \nutilize the team leader more frequently regardless of if it was required to slow \nher work down.” \n \n He did not believe that claimant was ever required to lift panels on an extended basis for a \nshift alone. He stated that the team leader was supposed to do hourly checks at each workstation and \nthe supervisor was also supposed to do hourly checks within the overall work cell. Mr. Daniel testified \nthat he personally walked through the area of the assembly line where claimant worked twice daily, \nand he did not observe claimant lifting panels alone. Had he done so, he would have told her to work \nwith  her  team leader  and supervisor  to get  help  and  would  have addressed  it  immediately  with  her \nsupervisor. There was then this exchange between respondent’s attorney and Mr. Daniel: \nQuestion (By Ms. Markham) Did she ever report to you a need for additional \nhelp in performing her job duties? \n \nAnswer  (By  Mr.  Daniel) Yes, she did, and  I  told  her  specifically  to  ask  for \nassistance from her team leader anytime she needed help and to work with her \nsupervisor as well. I then followed up with her team leader and supervisor.  \n \nQ. Did you ensure that help was provided to her? \nA.  I did not immediately because I felt the issues were resolved once I spoke \nwith the team leader. \n \nQ.  And what was the situation that made you feel like the situation had been \nresolved? \n \nA.  I  spoke  directly  with  Randy-or  sorry,  her  team  leader,  and  I  said  she \nrequested help, and he said “okay I will...”  I told him that she requested help \nand said that he would go and help her. \n \nQ.  So, does your understanding that when help was requested, Ms. Thotsaraj’s \nteam leader himself assisted her? \n \nA. Yes. \nQuestion  (By  the  Court)  What  I  understood  is  that  he  said  he was  going  to \n\nThotsaraj-H303979 \n8 \n \n \nhelp her. \n \nQuestion (By Ms. Markham) Okay I can rephrase. \nThe Court. Yes. \n Redirect examination: \nQuestion (By Ms. Markham) Do you have any knowledge of whether the team \nlead assisted Ms. Thotsaraj? \n \nAnswer (By Mr. Daniel) No. \nQ. But it was communicated to you an intention to do that was forth coming? \nA. Yes. \n Concluding direct examination, there was this exchange: \nQuestion  (By  Ms.  Markham)  What  type  of  employee  will  you  describe  Ms. \nThotsaraj to be when she worked at Trane? \n \nAnswer (By Mr. Daniel) She was very passionate about making sure her job \nwas done. \n \nQ. Did she complain or ask for accommodations? \nA.  She did ask for help on the occasion that we discussed. I can’t recall any \nother  requests  for  accommodations,  but  every  time  I  would  speak  with  her, \nthere were definitely some conversations about the jobs and different conflicts \nwithin the department with other people and that was on going. \n \n On cross-examination, Mr. Daniel explained that when claimant asked for additional help, it \nwas to keep up with the rate on the line. Mr. Daniel did not remember specifically if someone was \nalready helping her, but that when it was a request for help, he communicated that to her team leader. \nClaimant had expressed concerns that for some jobs with larger panels, the work goes slower, and Mr. \nDaniel assured her that it was okay to slow down on those heavier panels. He believed that a large \npanel would weigh about a hundred-ten pounds. He clarified that there were some custom products \nthat would weigh more than the normal fifty to seventy-five pounds and the larger ones are a little \n\nThotsaraj-H303979 \n9 \n \n \nodd to manipulate and being a larger assembly, the cycle time was a bit longer.  \n Mr. Daniel explained that Alex Diaz was the environmental health and safety technician and \nwould be responsible for managing a portion of the investigation to be performed before respondent \nTrane decided if an employee had suffered an injury. He agreed that if something happened on the \nsecond shift, it would be reported to safety the following shift. At the time of the hearing, Mr. Diaz \nwas still employed at Trane, but Mr. Daniel did not think that what he did could be properly called an \ninvestigation,  as that  was  done  through  a  corporate  team  associated  with  respondent  Travelers \nInsurance. \n On redirect-examination, Mr. Daniel said that there was no need for someone in claimant’s \nemployment  position  to  pick  up  and  bare  full  weight  of  a  panel  at any  time because  at  least some \nportion of the panel would be resting on a table surface or a conveyor surface at all times. The panels \nwere slid into place for assembly. The conveyor or the tabletop bore the weight of the panel. At no \ntime would an employee manipulating a panel on the conveyor have to push eighty pounds of dead \nweight because of the rollers on the conveyor. \n Claimant testified on rebuttal that she disagreed with Mr. Daniel’s description of how the roller \nfunctions. She said that one of the lines were basically perpendicular to the other line, forming an L-\nshape. With big panels, she needed help to lift it and turn it onto the next line. For example, if the \npanel  was  coming  to  the  west,  she  had  to  turn  it  to  the  south. She  would  have  to  lift  and  turn  it \notherwise it would not go to the south. She also said the tables had different heights; one was lower \nthan the other. \n On balance, I found no effort on the part of any witness to be deceptive. Even considering \nthe  natural  bias  that  I  would  expect  a  child  to  have  for  her  parent,  I  found  the  testimony of  Ms. \nPhommsay to be credible on the issues to which she spoke. Likewise, I had no reason to believe Mr. \n\nThotsaraj-H303979 \n10 \n \n \nDaniel was less than truthful in testifying about what he knew in this case. I noticed that instead of \nsaying claimant received help when she asked for it, he simply said he was told by a supervisor that \nshe would be assisted. Finally, while a claimant’s testimony is never to be considered uncontroverted, \nI  found nothing  in  her  demeanor  nor  in  the  medical  records  to  cause  me  to  think  she  was  being \nintentionally untruthful.  \nREVIEW OF THE EXHIBITS \n \n Claimant submitted 172 pages of medical records while respondent introduced 49 pages, most \nof  which  duplicated  those  submitted  by  claimant. Claimant’s records between April 24, 2023, and \nJanuary 2, 2024, consisted primarily of those from Conservative Care Occupational Health and Fort \nSmith  Therapy,  neither  of  which  were  providing  more  than  basic  care by  nurses  and  physical \ntherapists. APRN Jessica Minton from Conservative Care referred claimant for an MRI on her right \nshoulder, which was performed on June 13, 2023, with this impression:  \n1.  Advanced  degenerative  change  in  the  superior  glenoid  with  articular \ncartilage  thinning  and subchondral  cystic  degeneration.  Raises  concern  for \nunderlying superior labral tear. \n2.  Infraspinatus  tendinosis  and  interstitial  tearing,  No  full-thickness  rotator \ncuff tear or- tendon retraction. \n3. Mild-to-moderate AC  arthrosis with mild subacromial/subdeltoid edema \nand bursal surface fraying of the infraspinatus and supraspinatus tendons.  \n \nFollowing the results of the MRI, APRN Minton referred claimant to an orthopedic doctor  \non June 15, 2023; when claimant went to Mercy Clinic on July 6, 2023, she was seen by Physician’s \nAssistant Lauren Wahlmeier. PA Wahlmeier conducted an examination and performed corticosteroid \ninjections on claimant’s right arm and right elbow. She then referred claimant to physical therapy and \nwanted claimant to return in three months.  \nClaimant began her course of physical therapy. When it became apparent that claimant needed \na  level  of  care  beyond  what  she  had  received  to  that  point,  on  January  2,  2024,  Physical  Therapist \n\nThotsaraj-H303979 \n11 \n \n \nAshlyn McBride concluded her note with, “Patient will be placed on hold until she is able to follow \nup with MD.”  Once again, claimant did not immediately see a medical doctor, but was again examined \nby PA Wahlmeier on January 16, 2024, and an MRI was ordered. That was performed on January 30, \n2024, with the impression as follows: \n“1. Both acquired and developmental narrowing of the central canal with disk \nprotrusions  present  up  to  moderate  canal  narrowing  at  C3-4  level  and  C5-6 \nlevels. More mild central canal narrowing at other levels as above.  \n2.  Foraminal narrowing as above. \n3. Degenerative facet changes with small facet effusions C3-4.” \n \n Following the results of the MRI, claimant was seen by Dr. Miles Johnson for an EMG/NCS \nto evaluate the peripheral  nerve involvement. Dr. Johnson’s assessment was that while the study was \nunrevealing  for any abnormalities  of  the  peripheral  nervous  system,  he  did  note that  claimant  did \nappear to have some radicular symptomology He believed it was possible that she was having a purely \nsensory cervical radiculopathy which was not revealed in that study. Upon receiving the MRI and the \nEMG/NCS results, PA Wahlmeier referred the claimant to pain management for a possible epidural \ninjection in her cervical spine.  \n PA  Wahlmeier  next  saw  claimant  on  July  30,  2024. Her  notes  from  that  visit  indicate  that \nclaimant  had  seen  P.A.  Timothy  Booker  with  neurology  and  that  claimant  had  been  referred  to  a \nneurosurgery spine institute in Little Rock but had not yet been seen at that facility. She was first seen \nby  Dr.  Jordan  Walters  on  September  11,  2024,  following  that  examination,  Dr.  Walters  wanted \nclaimant to be evaluated by Dr. Muhammad Moursi for a possible thoracic outlet, and Dr. Walters \nmentioned that claimant might benefit from a posterior cervical decompression infusion, but would \nsuggest that only as a last resort. After examining claimant, Dr. Moursi determined that she was not a \ngood candidate for a thoracic outlet and referred her to UAMS Health Orthopedic and Spine Center. \nShe was seen by Dr. Tsu Chuan Yen and Dr. Walters on November 27, 2024, who referred her back \n\nThotsaraj-H303979 \n12 \n \n \nto UAMS Neurology. She finally had an MRI on her cervical spine on March 5, 2025:  \nFINDINGS: \nThere is straightening of the cervical spine with loss of normal \ncervical lordosis. \n \nThe cervical vertebral bodies are normal in height. There is mild \ndegenerative anterolisthesis at C3-4. The bone marrow signal intensity \nis within normal limits. No focal osseous lesions are seen. The \nspinal cord is normal in signal Intensity. Multilevel disc desiccation \nis noted. Intervertebral disc heights are maintained. Study by level: \n \nC2-3: Mild disc bulge with central disc protrusion and ligamentum  \nflavum thickening. MHd spinal canal stenosis. No neural foraminal narrowing. \n \nC3-4: Moderate disc bulge and ligamentum flavum thickening causing \nmoderate spinal canal stenosis. There is indentation of the ventral \nsurface of the spinal cord without cord compression or abnormal signal. \nThere is mild bilateral neural foraminal narrowing due to facet \nhypertrophy. \n \nC4-5: Moderate diffuse disc bulge and ligamentum flavum thickening \ncausing moderate spinal canal stenosis. There is ventral spinal cord \nindentation without cord compression or abnormal signal. There is mild \nright neural foraminal narrowing. \n \nC5-6: Moderate diffuse disc bulge with central disc protrusion and \nligamentum flavum thickening causing moderate spinal canal stenosis. \nThere is ventral spinal cord indentation without cord compression or \nabnormal signal. There is mild bilateral neural foraminal narrowing. \n \nC6-7:Moderate diffuse disc bulge with central disc protrusion and \nligamentum flavum thickening causing moderate spinal canal stenosis. \nThere is ventral spinal cord Indentation without cord compression or \nabnormal signal. No neural foraminal narrowing. \n \nC7-T1: Mild disc bulge and ligamentum flavum thickening. Mild spinal \ncanal stenosis. Moderate left neural foraminal narrowing. The prevertebral soft \ntissues appear unremarkable. The included posterior fossa structures show no \nsignificant abnormality. \n \nImpression: \nModerate cervical spondylosis with moderate acquired spinal \ncanal stenosis at the C3-4, C4-5 and C5-6 levels causing ventral spinal \ncord indentation. No spinal cord compression or abnormal signal.  \n\nThotsaraj-H303979 \n13 \n \n \n  \n  On March 13, 2025, Dr. Thomas Pait at UAMS Neurosurgery Clinic met with claimant and \nher daughter to go over the results of the MRI and outline the treatment options for claimant. His \nnote outlined what he advised claimant:    \nI discussed the options and alternatives with the patient and daughter. A model \nwas used to demonstrate the anatomy, as well as an anterior approach to the \ncervical[ spine.  The  patient  and  her  daughter  were well briefed regarding  an \nanterior  approach  to  the  cervical  spine  for  C5-C6  and  C6-diskectomy,  as \nintervertebral biomechanical  device  insertion, fusions, and  anterior  MRI \ncompatible  titanium  plate  screw  fixation.  No guarantees  could  be  given  her \npain  symptoms  would  improve,  could  worsen.  Likelihood  of  the  surgery \ninfluencing Maurice Raynaud's phenomena is remote. \n \nThe  risks  included,  but  not  limited  to,  infection  with  need  for  long-term \nantibiotics,  headaches,  spinal  fluid loss, pseudo  meningocele (defined),  need \nfor further surgery at the same or adjacent levels, injury to the food pipe and \nor airways (trachea/ esophagus), swallowing difficulties, hoarseness, blood clot \nat  the  operative  site requiring  evacuation,  blood clots  and  lower  extremities, \ninjury to great blood vessels ( carotid and or vertebral arteries), need for surgery \nposteriorly    (back    of    neck),    stroke, heart    attack,    blindness,    coma, \nmovement/migration/loosening/ pullout of the bone plate/screws, coma and \ndeath.   \n \n His  note  concluded  that  claimant  wanted  to  consider  her  options and  to contact  his  office \nwith any other questions or concerns.  \nNON-MEDICAL RECORDS \n Claimant submitted several pages of correspondence with and from representatives of Trane \nand Travelers Insurance, as well as her deposition of July 29, 2024. Respondent provided that same \ndeposition as well as an earlier one that occurred on June 11, 2024. In its brief, respondent pointed \nout  some  discrepancies  in claimant’s testimony at deposition and at the hearing, but none of these \nwere of such a nature that it impacted claimant’s overall credibility. \n \n \n \n \n\nThotsaraj-H303979 \n14 \n \n \nADJUDICATION \n \n As  this  claim  was  controverted  in  its  entirety,  claimant  has  the  burden  of  proving  by  a \npreponderance of the evidence that (1) an injury occurred that arose out of and in the course of her \nemployment; (2) the injury caused internal or external harm to the body that required medical services \nor  resulted  in  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence  supported  by \nobjective findings, which are those findings which cannot come under the voluntary control of the \npatient; and (4) the injury was caused by a specific incident and is identifiable by time and place of \noccurrence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  \nClaimant’s testimony provided the proof on the first and fourth elements; I found claimant to \nbe a credible witness on that issue (despite her mistaken belief that something she was moving may \nhave weighed 700 pounds). Although a claimant's testimony is never viewed as uncontroverted, the \nCommission need not reject the claimant's testimony if it finds that testimony worthy of belief. Ringier \nAmerica v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993). I am satisfied claimant promptly reported the \ninjury to several fellow employees in a supervisory capacity on April 13, 2023.\n2\n  As Mr. Daniel noted, \nan injury on the second shift is reported the next day, and I am satisfied that is the reason for April \n14,  2023, being  included  in  the  medical  records  was  due  to  an  error  by  the  employer  (see  Cl.X.2), \nwhere the employer’s description of the accident had April 14, 2023).  Claimant’s testimony that she \nfelt the injury and it got worse over the course of the day does not mean she did not identify a specific \n \n2\n In her depositions, claimant identified several people that she told about her injury on April 13 and 14, 2023. For \nsome, she was able to provide a full name; for others, either a first name or a position. The Arkansas Supreme Court \nhas held that where a witness is available to a party and by reason of his employment subject to the party's direction \nand control, a failure to call that witness with reference to any fact in issue, creates a presumption that his testimony \nwould be adverse to the party who could have called him. Arkansas State Highway Com. v. Phillips, 252 Ark. 206 \n(1972); Brower  Mfg.  Co.  v.  Willis,  252  Ark.  755  (1972).  The  only  inference  that  can  be  drawn  without  a  logical \nexplanation offered as to failure to produce such witnesses is that those witnesses would be adverse to the interest of \nthe respondents. \n \n\nThotsaraj-H303979 \n15 \n \n \nincident, see Cedar Chemical Co. v. Knight, 372 Ark. 233, 273 S.W.3d 473 (2008).  \nRegarding the second and third elements, claimant began treatment within 10 days of reporting \nthe injury. The employer obviously believed the claimant to be performing employment services on \nApril 13, 2023, because the respondents initially provided medical benefits; the reason for the cessation \nwas never made clear at the hearing. Even while receiving the limited care that respondent provided, \nAPRN Minton recognized there may be a need for an MRI to properly diagnose what was wrong with \nclaimant. In  her  chart  entry  of  May  15,  2023, the  following were  recorded:  “We  will  attempt \nconservative treatment. She may need an MRI for her radiculopathy of the left upper extremity...”  \n“Acute complicated injury.” “The injury is extensive.” Despite  these observations,  APRN  Minton \nconcluded  with: “Khanh’s  recommended  work  status  is  regular  duty. Recommended  activity \nrestrictions: Attention not to aggravate injuries.” \n  As set forth in the summary of the medical records, after another month of conservative care, \nan MRI on claimant’s right shoulder, and still not being seen by a medical doctor at Conservative Care \nOccupational  Health, APRN  Minton referred her to an  orthopedic  doctor. Claimant  next  went  to \nMercy  Clinic  Orthopedic, where  she was  seen on July 6, 2023, by Physician’s Assistant Lauren \nWalhmeier. On  that  first  visit,  PA  Walhmeier injected claimant’s right shoulder and elbow with a \ncorticosteroid.\n3\n  After respondents ceased paying benefits in this matter, there were spasms recorded \n \n3\n See Melius v. Chapel Ridge Nursing Ctr., LLC, 2021 Ark. App. 61, 618 S.W.3d 410l: \n \n\"In addition, there is no requirement under Arkansas law that a doctor, physical therapist or other medical provider \nactually observe a patient having a muscle spasm before an employee's injury can be compensable. See Estridge v. \nWaste Mgmt., 343 Ark. 276, 33 S.W.3d 167. In Estridge, the supreme court held that straightening of the curve in the \nspine was an objective finding supporting a back injury because this finding is normally associated with muscle spasm, \nand the doctor in that case prescribed medication \"as needed for muscle spasm.\" Estridge, 343 Ark. at 282, 33 S.W.3d \nat  171.  This  was  found  to  be  objective  evidence  of  injury  with  no  evidence  to  the  contrary.  Id.  Furthermore,  the \nsupreme court held that a doctor would not prescribe medications used for muscle spasms if he or she did not believe \nthat muscle spasms were existent. Id.” \nIf prescribing oral medications for a muscle spasm is objective evidence that a doctor believes the problem \nexisted, then administering a corticosteroid injection would likewise satisfy the requirement that the physician’s \nassistant made an objective finding that a condition was present that warranted such. \n\nThotsaraj-H303979 \n16 \n \n \nin claimant’s scapula, periscapular muscles and neck during her physical therapy session on November \n18, 2023. All these objective findings are present in the record before claimant had a cervical MRI in \nJanuary 2024, which clearly demonstrated the issues in claimant’s neck. \nBased on the foregoing analysis, I find claimant has met her burden of proof that she sustained \na compensable injury on April 13, 2023, to her neck, upper back, and shoulders. Claimant requested \nthat  she  be  awarded  medical  benefits,  and  I  find  that  the  treatment  she  has  had  since  respondents \ncontroverted her claim have been reasonable and necessary. Claimant also requested temporary total \ndisability  (TTD)  benefits  from  October  6,  2023,  to  a  date  to  be  determined,  less  one  day  that  she \nreturned to work. Because claimant's neck, back and shoulder injuries are unscheduled injuries, she \nmust prove by a preponderance of the evidence that she remains within her healing period and suffers \na total incapacity to earn wages in order to receive temporary total disability benefits, Allen Canning Co. \nv. Woodruff, 92 Ark. App. 237, 212 S.W.3d 25 (2005). I am satisfied that she proved her entitlement to \nTTD benefits up to the date of the hearing, but the records before me cannot support an award of \nTTD beyond that day; I do not have anything to indicate that she remains in her healing period beyond \nMay 12, 2025. Claimant has been given a treatment option of extensive surgery on her neck, and I \nfind no fault for her desire to carefully consider the risks and potential benefits of that surgery.  It is \nalso reasonable for her to wait to learn how this matter was to be decided. However, it was two months \nfrom the date of her last appointment and the date of the hearing. During her visit with Dr. Elberson \non March 13, 2025, it was suggested that claimant might return to Dr. Walters for a follow-up visit. I \nwas not told if that visit was scheduled as of the date of the hearing. If claimant has determined not \nto  have  the  surgery or  seek  any  other  care,  then it  appears she  has reached  maximum  medical \nimprovement and will need to secure an impairment rating should her physician believe she is entitled \n \n \n\nThotsaraj-H303979 \n17 \n \n \nto one, or alternatively, begin a different course of treatment recommended by her doctors. I simply \ndo  not  have  any evidence of  her condition  beyond  the  date  of  the hearing  and cannot award \nprospective TTD benefits based on the proof before me. The issue of TTD beyond May 12, 2025, is \ntherefore specifically reserved.  \nBased on my finding that claimant sustained a specific incident injury, it was unnecessary for \nme to address the alternative claim of a gradual onset injury.  \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's  \nfee on the indemnity benefits awarded herein. This fee is to be paid one half by the carrier and one \nhalf by the claimant. \nThe respondent shall pay the court reporter's fee in the amount of $941.50. \nAll issues not addressed herein are expressly reserved under the Act. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":35583,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303979 KHANH THOTSARAJ, EMPLOYEE CLAIMANT TRANE COMMERCIAL SYSTEMS, EMPLOYER RESPONDENT FARMINGTON CASUALTY COMPANY, CARRIER/TPA RESPONDENT OPINION FILED AUGUST 7, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County,...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["neck","back","shoulder","cervical","thoracic"],"fetchedAt":"2026-05-19T22:37:10.329Z"},{"id":"alj-H408153-2025-08-06","awccNumber":"H408153","decisionDate":"2025-08-06","decisionYear":2025,"opinionType":"alj","claimantName":"Pearlie Mcdaniel","employerName":"Crestpark Of Forrest City LLC","title":"McDANIEL VS. CRESTPARK OF FORREST CITY LLC AWCC# H408153 August 06, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/McDaniel_Pearlie_H408153_20250806.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"McDaniel_Pearlie_H408153_20250806.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC NO. H408153 \n \n \nPEARLIE McDANIEL, EMPLOYEE CLAIMANT \n \nCRESTPARK OF FORREST CITY LLC, \n SELF-INSURED EMPLOYER RESPONDENT \n \nCANNON COCHRAN MGMT. SVCS., INC., \n THIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED AUGUST 6, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on June 27, 2025, in Forrest \nCity, St. Francis County, Arkansas. \n \nClaimant represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents   represented   by   Ms. Melissa   Wood,   Attorney   at   Law,   Little   Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On June  27,  2025,  the  above-captioned  claim  was  heard  in Forrest  City, \nArkansas.    A  prehearing  conference  took  place  on April  28,  2025.   The Prehearing \nOrder entered that same day pursuant to the conference was admitted without objection \nas  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n The   parties   discussed   the   stipulations   set   forth   in   Commission   Exhibit  1.  \nFollowing an amendment of  Stipulation  No. 2 at  the  hearing,  they  are  the  following, \nwhich I accept: \n\nMcDANIEL – H408153 \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The  employee/self-insured  employer/third-party  administrator  relationship \nexisted among the parties on August 16, 2023. \n3. Claimant’s average weekly wage of $288.75 entitles her to compensation \nrates of $193.00/$154.00. \n4. Respondents have controverted this claim in its entirety. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.   After  the  addition  of  an issue  concerning  when  Claimant  furnished  notice  of  her \nalleged injury, the following were litigated: \n1. Whether Claimant sustained a compensable injury to her right shoulder by \nspecific incident. \n2. When did Claimant furnish notice of her alleged injury? \n3. Whether   Claimant   is entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged injury. \n4. Whether Claimant is entitled to temporary total disability benefits. \n5. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are as follows: \n\nMcDANIEL – H408153 \n3 \n \n Claimant: \n1. Claimant  contends  that  she  sustained  compensable  injuries  to  her  right \nshoulder when she fell while on the job and in the employ of Respondent.  \nShe further contends entitlement to payment of medical expenses incurred \nand  to  temporary  total  disability  benefits  through  a  date  yet  to  be \ndetermined. \nRespondents: \n1. Respondents contend  that  Claimant  did  not  suffer  a  compensable  injury \non August 16, 2023.  She was not working on the alleged date of injury or \nperforming any employment-related activities. \n2. Respondents  further  contend  that  Claimant  failed  to  give  notice  of  any \nalleged incident until October 10, 2024, and that they should not be liable \nfor benefits in the event compensability is found. \n3. Moreover,  Respondents  contend  that  Claimant  continued  to  work  for \nRespondent employer through her date of resignation in December 2024. \n4. Finally,  Respondents  contend  that  the  medical  documentation  does  not \nsupport  a  compensable  injury,  nor  does  it  support  entitlement  to  benefits \nin the event compensability is found. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  the witnesses and  to  observe their demeanor,  I  hereby  make  the \n\nMcDANIEL – H408153 \n4 \n \nfollowing  findings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that she \nsustained  a  compensable injury  to  her  right shoulder injury  by  specific \nincident. \n6. Because  of  Finding/Conclusion  No.  3,  supra,  the  remaining  issues—\nconcerning  when  did Claimant furnish  notice  of  her  alleged  injury,  and \nwhether she is entitled to reasonable and necessary treatment, temporary \ntotal disability benefits, and a controverted attorney’s fee—are  moot  and \nwill not be addressed. \nCASE IN CHIEF \n Summary of Evidence \n The hearing witnesses were Claimant, Tracey Fleetwood, and Keith Adams. \n In  addition  to  the Prehearing Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case were Claimant’s Exhibit 1, a compilation of her medical  records, \nconsisting of one index page and 40 numbered pages thereafter; Respondents’ Exhibit \n1, another compilation\n1\n of Claimant’s medical records, consisting of one index page and \n \n1\nThis exhibit does not comply with the Prehearing Order because (1) the index is \nnot  date-specific;  (2)  it  is  organized by provider  and  not  chronologically.    Respondents \nare cautioned not to do this in the future. \n\nMcDANIEL – H408153 \n5 \n \n59 numbered  pages  thereafter;  and  Respondents’  Exhibit  2, non-medical  records, \nconsisting of one index page and 11 numbered pages thereafter. \n Testimony.   Claimant, who  is 77 years  old  and a  high  school  graduate,  testified \nthat she worked for Respondent Crestpark of Forrest City LLC (“Crestpark”) as a cook’s \nhelper.  She described her duties: \nWash  dishes,  clean  up  behind  yourself,  clean  the  refrigerator  and  the \ndeep freezer out and get it all stacked in, you know, real nice, and I would \nclean  the  sink  table  and  then  wash  the  dishes  .  .  .  I  had  to  cook—\nsometimes  I  had  to  cook  pies  and  cakes,  and  then  I  would  have  to  do  a \nsalad for the other employees, the salaried employees. \n \n Asked  about  the  incident  at  issue,  which  occurred  in  August  2023,  Claimant \nrelated: \nWell, I went—the CNA came in and we knowing every day this lady, she \nate cream of chicken noodle soup, and they a small can.  And I went back \nthere  in  the  room,  in  the  stockroom,  and  got  that,  the  can  of  soup,  and \nthen  I  was  in  such  a  hurry my  foot  got  caught  on  the  pallet  on  the  floor, \nand I fell . . . . \n \n Claimant’s testimony was that her right shoulder was injured in this fall,  which \nstated  occurred  on  a  Saturday approximately  ten  minutes  before  the  end  of  her  shift.  \nNo  one  witnessed  the  incident.   Right  after  it  occurred,  she  went  to  the  Forrest  City \nMedical  Center;  and the  following  Monday, Claimant went  to Dr.  James  Meredith,  her \npersonal  physician.  At  the  time  she  presented  for  treatment  that  day,  she  also  had  a \nknot on her head as a result of the fall.  She was given, inter alia, a steroid injection in \nher shoulder in the emergency room.  According to her, she continued to receive these \ninjections  for  approximately  18  months—which  enabled  her  to  continue  working  at \nCrestpark during that period of time. \n\nMcDANIEL – H408153 \n6 \n \n According  to  Claimant,  her  supervisor  at  this  time  was  Keith  Adams.    Asked  if \nshe reported the fall to him, she replied that supervisors did not work on the weekend.  \nShe added:  “So when I went in Monday, I told Keith I was hurt, and he said—he was \nripping at some papers.  He said, ‘okay.’”  Her testimony was that she stayed put in his \noffice, waiting for papers to report her injury.  But he informed her that “[w]e don’t do \nworkman’s comp,” and asked her to close the day as she left.  Claimant stated that she \nalso told “Jamie,” a kitchen helper who was also working at Crestpark on August 16, \n2023, that she had fallen and gotten hurt. \n Asked  about  her  current  shoulder  condition,  Claimant  testified  that  she  suffers \nfrom  sharp  pain  in  the  shoulder.    She  is  unable  to  raise  her  right  arm  higher  than just \nabove  her  head.   Dr.  Meredith  referred  her  to Dr.  Ron  Schechter, a  specialist  in \nJonesboro.  She was ultimately found to have suffered a tear in her shoulder.  Surgery \nthereon  has  been  scheduled  for  July  2025.    Her  treatment  has  been  covered  by  her \nMedicare. \n Claimant  stated  that  she  told  treating  personnel  at  both  the  hospital  and  Dr. \nMeredith’s office that she hurt her shoulder at work.  But when asked about purported \ndiscrepancies in her account contained in Dr. Meredith’s records, Claimant denied the \naccuracy  of  those  other  references.   For  instance,  while  a  November  10,  2023,  report \nreflects that Claimant stated that her shoulder was injured when her nephew dropped a \nflowerpot on it while the two of them were moving her sister, Claimant disputed making \nthis  statement, adding  that  her  sister  did  not  move.   During my  questioning of her, the \nfollowing exchange took place: \n\nMcDANIEL – H408153 \n7 \n \nQ. I’ve been  listening  to  your  testimony  and  one  of  the  things  I’m \ncurious about  is,  are  you  certain  that August  16\nth\n of 2023,  are  you \nsure that’s the day you fell? \n \nA. I’m positive. \n \nQ. How do you know for certain? \n \nA. Because  I  looked  on  the  calendar  and  when  I  got  to  the—well,  I \nknowed about it when I got to Dr. Meredith’s office that Monday. \n \nAfter it was pointed out\n2\n to Claimant that August 16, 2023, fell on a Wednesday—not a \nSaturday—the following exchange occurred: \nQ. Did  you  say,  Ms.  McDaniel,  that  you  know  what  day  of  the  week \nthis happened?  What day was it? \n \nA. It was on a Saturday. \n \nQ. You know it was a Saturday? \n \nA. Yes, sir. \n \n. . . \n \nQ. Did you fall on Wednesday? \n \nA. I fell on a Saturday. \n \nQ. On a Saturday. \n \nA. Uh-huh. \n \nQ. Okay.  Where  did  you  come  up  with  the 16\nth\n,  then?   You  said  you \nlooked at a calendar, though. \n \nA. Yeah, but I was—when I got home, I was kind of out of it.  I didn’t \nhardly make it home. \n \nQ. Well, when did you look at a calendar? \n \nA. That Monday, I believe. \n \n2\nI hereby take judicial notice under Buxton v. City of Nashville, 132 Ark. 511, 201 \nS.W. 512 (1918), that August 16, 2023, fell on a Wednesday. \n\nMcDANIEL – H408153 \n8 \n \n \nQ. The following Monday? \n \nA. Because I didn’t go to church that Sunday. \n \nQ. Okay, all right.  And you’re certain it was a Saturday?  There’s no \nquestion in your mind? \n \nA. It was a Saturday. \n \n Called by Respondents, Tracey Fleetwood testified that she is the administrative \nassistant  at  Respondent  Crestpark.    As  part  of  her  duties,  she  handles  workers’ \ncompensation  matters.    She  stated  that  employees  who  suffer  work-related  injuries \nshould  report  them  to  their  supervisor,  and  that  they  are  sent  to  Dr.  Meredith  for \ntreatment.    Workers  injured  on  the  weekend  can  see  the  nurse  who  is  on  duty.    The \nfacility has a Form P on display. \n According  to  Fleetwood,  she  did  not  know  about  Claimant  purportedly  being \ninjured  at  work  prior  to  October  10,  2024.    Nor  was  she  aware  that  Claimant  was \ntreating with Dr. Meredith. \n Called by Respondents, Keith Adams testified that he is the dietary supervisor at \nCrestpark.  He was Claimant’s direct supervisor.  He  stated  that  he  did  not  become \naware of Claimant’s alleged shoulder injury until she filed her claim in 2024.  Before that \ntime, it was his understanding, based on a conversation with her, that Claimant hurt her \nshoulder when she fell in her yard while running from a dog.  But shortly thereafter, he \nstated that Claimant told him “that she was out talking to a neighbor and a stray  dog \ncame up, and they ran in the house and her neighbor fell on top of her.”  He denied that \nClaimant  told  him  in  August  2023  that  she  hurt  her  shoulder  at  work.    However,  he \nalleged that her reporting the alleged injury in October 2024 was contemporaneous with \n\nMcDANIEL – H408153 \n9 \n \nher  being  written  up  for  disruptive  behavior  and  then  suspended  for  smoking  at  the \nfacility. \n Medical  Records.    The  medical  records  in  evidence,  contained  in  Claimant’s \nExhibit 1 and Respondents’ Exhibit 1, reflect the following: \n On November 10, 2023, Claimant presented to APRN Madeline Herrington, who \nwas in Dr. Meredith’s office.  Per the report in evidence, Claimant related to Herrington \nthat “[s]he had a flower pot to fall on her shoulder and she fell and now she is having \npain in her right shoulder[.]”  The following narrative appears later in the report: \n[P]atient  presents  with  pain  to  the  right  shoulder  [and]  denies  wanting  x-\nrays  at  this  time.    Reports  helping  her  sister  move  and  her  nephew \naccidentally dropped a flower pot on her and then she fell.  Denies hitting \nher  head  or  LOC  [and]  reports  pain  to  the  shoulder  will  return  if  no \nimprovement over the weekend. \n \nExamination  notes  concerning  the  shoulder  reflect  only  limited  range  of  motion.  \nHerrington assessed her as having “[a]cute pain of right shoulder” and administered \ninjections of Depo Medrol and Toradol/Keterolac.  But Claimant returned on November \n13,  2023,  stating that she  was  still  having pain  and  was unable  to  move  her  shoulder.  \nAs  before,  examination  of  the  shoulder  showed  only  that  she  was  having  range-of-\nmotion  issues  with  it.   An  x-ray  of  the  shoulder  was  read  by  Dr.  John  Oliver  on \nNovember  14,  2023,  to  show  “[n]o  acute  fracture  or  dislocation  .  .  .  [and]  [m]ild \ndegenerative changes of the right AC joint and glenohumeral joint noted.” \n On  March  4,  2024,  Claimant  returned  to  Dr. Meredith’s  office  and  requested \nanother injection of her shoulder.  He gave her an injection of Lidocaine/Triamcinolone.  \nClaimant  returned  to  Meredith  on  May  20,  2024,  but  did  not  complain  about  her \nshoulder.    This  changed,  however,  on  August  16,  2024.    On  this  occasion, she  stated \n\nMcDANIEL – H408153 \n10 \n \nthat she hurt her right shoulder “when falling on it in the spring.”  She denied re-injuring \nit, and added that the shoulder pain was worsening.  Once again, examination showed \nthat she had limited range of motion in the shoulder. \n When Claimant returned to Dr. Meredith’s office on September 19, 2024, and \nsaw APRN Tracy Jill Jones, she informed her that “she fell [in the] fall of last year on \nsome  doorsteps  and  hurt  her  right  shoulder  and  .  .  .  has  been  experiencing  shoulder \npain since . . . .”  Later in the report of that visit, Jones wrote: \nPatient  presents  complaining  of  chronic  right  shoulder  pain.    It  started \nabout 3 years ago.  She was taking care of her husband who had severe \ndementia, and he hit her on the top of her shoulder. \n \n Claimant  requested  an  MRI  of  her  right  shoulder;  and  one  was  performed  on \nSeptember  23,  2024.    The  MRI  revealed  that  she  had  a  full-thickness  tear  of  the \nsupraspinatus  and  infraspinatus  tendons  with  4  cm  of  retraction,  an  incomplete  full-\nthickness  tear  of  the  subscapularis,  tenosynovitis  of  the  long  and  short  heads  of  the \nbiceps tendon, and moderate glenohumeral joint effusion. \n On October 8, 2024, Claimant saw Dr. Schecter.  The history portion of his report \nreads in pertinent part: \nThe patient presents for evaluation of right shoulder pain . . . [s]he denies \nany  history  of  trauma.    She  started  having  pain  in  her  shoulder  about  a \nyear ago and it has gotten progressively worse over time. \n \nSchecter informed Claimant “that per problem is consistent with significant rotator cuff \narthropathy with massive tearing of the rotator cuff as well as secondary arthritis.” \n On November 19, 2024, Claimant returned to Dr. Meredith and was given a Depo \nMedrol injection and a refill of Hydrocodone.  She informed Meredith’s office on March \n\nMcDANIEL – H408153 \n11 \n \n19,  2025,  that  surgery  on  her  right  shoulder  had  been  scheduled  for  the  following \nmonth. \nADJUDICATION \nA. Compensability \n Introduction.    As  the  parties  have  stipulated,  Claimant was  an  employee  of \nRespondent Crestpark on August 16, 2023.  In this action, Claimant has alleged that as \na result of a specific incident at work on that date, she sustained a compensable injury \nto her right shoulder.  Respondents deny that this alleged injury is compensable. \n Standards.   Arkansas Code  Annotated  § 11-9-102(4)(A)(i)  (Repl.  2012),  which  I \nfind applies here, defines “compensable injury”: \n(i)  An  accidental  injury  causing  internal  or  external  physical  harm  to  the \nbody  .  .  .  arising  out  of  and  in  the  course  of  employment  and  which \nrequires  medical  services  or  results  in  disability  or  death.    An  injury  is \n“accidental” only if it is caused by a specific incident and is identifiable by \ntime and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe  element “arising  out  of  .  .  .  [the]  employment” relates  to  the  causal  connection \nbetween the claimant’s injury and his or her employment.  City  of El  Dorado  v.  Sartor, \n21 Ark. App. 143, 729 S.W.2d 430 (1987). \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \n\nMcDANIEL – H408153 \n12 \n \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n Discussion.  In examining the elements of compensability cited supra, it is clear \nthat  Claimant  eventually  was  found  to  have  objective  findings of  injury  to her right \nshoulder in the form of, inter alia, rotator cuff tearing (found on the September 23, 2024, \nMRI).    This objective  finding  certainly  caused  internal  or  external  physical  harm  to \nClaimant’s body and required medical services. \n What  remains  to  be  determined,  however,  is  whether Claimant’s right shoulder \ncondition arose  out  of  and  in  the  course  of  her  employment  and  was  caused  by  an \nincident that is identifiable by time and place of occurrence.  Claimant must show that a \ncausal connection existed between the injury and her employment.  Gerber Products v. \nMcDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).  An injury occurs “in the course of \nemployment” when it occurs “within the time and space boundaries of the employment, \nwhile the employee is carrying out the employer’s purpose or advancing the employer’s \ninterests  directly  or  indirectly.”  Olsten  Kimberly  Quality  Care  v.  Pettey,  328  Ark.  381, \n944 S.W.2d 524 (1997); Pilgrim’s Pride Corp. v. Caldarera, 54 Ark. App. 92, 923 S.W.2d \n290 (1996).  An injury arises out of a claimant’s employment “when a causal connection \nbetween work conditions and the injury is apparent to the rational mind.”  Sartor, supra. \n In  her  hearing  testimony,  as  detailed  above,  Claimant  described  her  right \nshoulder  getting  hurt  when  she  tripped  over  a  pallet  and  fell  in  the  stockroom  at \nRespondent Crestpark while retrieving a can of soup.  She was “positive” that the event \nin question took place on August 16, 2023, explaining that she had consulted a calendar \nthe following Monday.  But once it was pointed out that employment records in evidence \n\nMcDANIEL – H408153 \n13 \n \ndo not reflect that she worked that particular day, she explained that she knew that her \nfall occurred on a Saturday in August 2023. \n Her testimony was that the same day as the fall, she went to Forrest City Medical \nCenter; and that she saw Dr. Meredith the following Monday.  But this, too, is not borne \nout  by  the  evidence.    As  shown supra,  she  did  not  present  for  treatment  for  her right \nshoulder  until  November  10,  2023—87  days  after  August  16,  2023.  A  causal \nrelationship   may   be   established   between   an   employment-related   incident   and   a \nsubsequent physical injury based on the evidence that the injury manifested itself within \na  reasonable  period  of  time  following  the  incident,  so  that  the  injury  is  logically \nattributable to the incident, where there is no other reasonable explanation for the injury. \nHall v. Pittman Construction Co., 234 Ark. 104, 357 S.W.2d 263 (1962).  In the course \nof  that  visit, Claimant related to Dr. Meredith’s office that she hurt her shoulder while \nshe was helping her sister move when her nephew dropped a flowerpot on her, causing \nher to fall. \n As  her  medical  records  show,  being  struck by  a flowerpot is  just  one  version  of \nher  story  that  she  has  given to  treating  personnel  in  describing how  her  right  shoulder \nbecame  injured.    During  an  August  16,  2024,  appointment,  Claimant  stated  that  the \nshoulder became hurt after she fell on it “in the spring.”  The next month, Claimant told \nother treating personnel that the injury in question took place in the autumn of 2023, and \nthat it happened when she fell “on some doorsteps”—not on a pallet in a stockroom as \ndetailed in her hearing testimony.  But during that same visit, Claimant gave yet another \nexplanation for her shoulder condition; she described it as beginning three years prior, \nwhen she was struck by her dementia-ridden husband.  Amazingly, despite all of these \n\nMcDANIEL – H408153 \n14 \n \nquite different origin stories—none of which bear resemblance to tripping over a pallet at \nwork—Claimant told Dr. Schecter that she had suffered no known trauma to account for \nher right shoulder condition. \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., \n72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.  Id. \n In light of the foregoing, I am simply unable to credit Claimant’s testimony.  She \nhas not established that her condition of her right shoulder as documented by the MRI \nwas  due  to  an  accident  that  arose  out  of  and  in  the  course  of  her  employment  at \nRespondent  Crestpark.    Consequently,  she has not  proven  by  a  preponderance of  the \nevidence that she sustained a compensable injury to that shoulder by specific incident. \nB. Remaining Issues \n Because  Claimant  has  not  established  that  she  suffered  a  compensable  injury, \nthe  remaining  issues—which  consist  of  establishing  when  she  furnished  notice  of  her \nalleged  injury  and  her  entitlement  to  reasonable  and  necessary  treatment,  temporary \ntotal disability benefits, and a controverted attorney’s fee—are  moot  and  will  not  be \naddressed. \n\nMcDANIEL – H408153 \n15 \n \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":24184,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC NO. H408153 PEARLIE McDANIEL, EMPLOYEE CLAIMANT CRESTPARK OF FORREST CITY LLC, SELF-INSURED EMPLOYER RESPONDENT CANNON COCHRAN MGMT. SVCS., INC., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 6, 2025 Hearing before Administrative Law Judge O. Milton ...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["shoulder","back","fracture","rotator cuff"],"fetchedAt":"2026-05-19T22:37:04.011Z"},{"id":"full_commission-H003073-2025-08-05","awccNumber":"H003073","decisionDate":"2025-08-05","decisionYear":2025,"opinionType":"full_commission","claimantName":"Kenneth Brewton","employerName":"May Avenue Plumbing","title":"BREWTON VS. MAY AVENUE PLUMBING AWCC# H003073 August 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Brewton_Kenneth_H003073_20250805.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Brewton_Kenneth_H003073_20250805.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H003073 \n \nKENNETH BREWTON, EMPLOYEE  CLAIMANT \n \nMAY AVENUE PLUMBING, EMPLOYER RESPONDENT \n \nUNITED FIRE & CASUALTY COMPANY,  RESPONDENT \nINSURANCE CARRIER/TPA  \n \n \nOPINION FILED AUGUST 5, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal and the claimant cross-appeals an opinion and \norder of the Administrative Law Judge filed March 20, 2025.  In said order, \nthe Administrative Law Judge made the following findings of fact and \nconclusions of law: \n1. The   stipulations   agreed   to   by   the   parties   at   a   pre-hearing \nconference    conducted  on  January 15,  2025, and  contained  in  a \nPre-Hearing  Order  filed  that  same  date  are  hereby  accepted  as \nfact. \n \n2. Claimant has met his burden of proving by a preponderance that \nhe has a 13% impairment rating to the body as a whole for his low \nback injury. \n\nBREWTON - H003073  2\n  \n \n \n3. Respondent has controverted claimant’s entitlement to payment of \npermanent partial disability benefits in an amount equal to 8% to \nthe body as a whole.  \n \n4. Respondent is not liable for payment of a late payment penalty.  \n \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed.  Specifically, we find from a preponderance \nof the evidence that the findings made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(a)(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \n\nBREWTON - H003073  3\n  \n \n \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n I must respectfully dissent from the majority’s opinion finding the \nclaimant has proven he is entitled to an additional 8% impairment rating to \nthe body as a whole for his low back injury. \n The claimant sustained a compensable injury to his low back in a \nJanuary 7, 2020 motor vehicle accident.  Three physicians have assigned \nthe claimant different permanent impairment ratings, ranging from zero to \nthirteen percent. \n After a hearing, an administrative law judge (ALJ) found the claimant \nhad met his burden of proving that he is entitled to a thirteen percent (13%) \nimpairment rating as assigned by Dr. James Blankenship.  Respondents \nappeal. \n“A permanent partial disability not scheduled in § 11-9-521 shall be \napportioned to the body as a whole, which shall have a value of four \n\nBREWTON - H003073  4\n  \n \n \nhundred fifty (450) weeks, and there shall be paid compensation to the \ninjured employee for the proportionate loss of use of the body as a whole \nresulting from the injury.”  Ark. Code Ann. § 11-9-522(a).  “Permanent \nbenefits shall be awarded only upon a determination that the compensable \ninjury was the major cause of the disability or impairment.”  Ark. Code Ann. \n§ 11-9-102(4)(F)(ii)(a).  Arkansas Code Annotated § 11-9-102(4)(D) \nprovides that a compensable injury must be established by medical \nevidence supported by objective findings.  An objective finding is defined as \na finding which cannot come under the voluntary control of the claimant. \nArk. Code Ann. § 11-9-102(16)(A)(i). \nThe claimant was treated by Dr. Edward Saer between April 22, and \nSeptember 21, 2021.  After an April 23, 2021 visit, Dr. Saer reported: \nExam was fairly unremarkable when I saw him \nan MRI done January 11, 2021 shows mild \ndegenerative disc change L2-S1 with no focal \nherniations or significant stenosis. \n \nHe has been going to physical therapy and \nsays he is better.  His legs are buckling on \nhim.  He still has pain on the left when he tries \nto flex his knee.  Sometimes he will get a \npopping sensation in the left lower back if he is \nseated and moves his left leg around. \n \nI reviewed the PT report from the last visit \nwhich was yesterday. \n \nHe has a lot of questions.  I went over his MRI \nreport with him line by line, and also pulled up \nthe actual films and went through them.  I \n\nBREWTON - H003073  5\n  \n \n \nexplained that the things we see on MRI are \nage related, and it is impossible to attribute his \npain to one specific finding.  I reassured him \nagain that he does not need any surgical \ntreatment for this.  The fact that he is \nimproving is a good sign. \n \n(Resp. Ex. 1, P. 4). \nThe claimant underwent a functional capacity evaluation (FCE) on \nSeptember 15, 2021, which Dr. Saer reviewed prior to releasing the \nclaimant at maximum medical improvement (MMI).  (See Hrng. Tr., \nNovember 13, 2023, p. 14, Resp. Ex. 1, Pp. 13-41).  Dr. Saer opined that \nthe claimant’s FCE was considered reliable with 53/53 consistency \nmeasures within expected limits and released the claimant at MMI, stating \nthat “[h]is restrictions are within normal limits.  He is at MMI and there is no \npermanent impairment related to his back injury.”  (Resp. Ex. 1, P. 9). \nThe respondents later obtained an independent medical evaluation \n(IME) performed by Dr. Wayne Bruffett on October 18, 2024.  Upon \nexamining the claimant and reviewing his imaging, Dr. Bruffett opined: \nI was able to review the MRI scans.  Honestly \nthey look pretty good.  He has some mild \ndegenerative changes.  On the more recent \nstudy he may have a small annular tear at L3-\n4.  He apparently had a significant injury if he \nrequired shoulder surgery.  So I would say with \na reasonable degree of medical certainty that \nhe did sustain injury to the lumbar spine as \ndescribed above.  However, he was treated \nnon operatively and I can not say that he has a \nspecific herniated nucleus pulposis.  And my \n\nBREWTON - H003073  6\n  \n \n \nopinion that an impairment rating of 5% of the \nwhole person based on the lumbar spine is \nreasonable. \n \n(Resp. Ex. 1, P. 11). \n The claimant was evaluated by Dr. James Blankenship who, on \nSeptember 5, 2024, wrote a letter to claimant’s attorney, opining that the \nclaimant has a “grade 1 anterolisthesis at the L4-5 level” and “a posterior \ndisc protrusion at the lumbosacrum,” assigning a thirteen percent (13%) \nrating to the body as a whole. (Cl. Ex. 2, P. 2). \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force. Sheridan Sch. Dist. v. Wise, 2021 Ark. App. \n459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness.  Id.  The \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony that it deems worthy of belief.  White v. Gregg \nAgricultural Enterprises, 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \n Of the three physicians who treated, examined, and assigned the \nclaimant an impairment rating, Dr. Blankenship’s findings are clearly in \n\nBREWTON - H003073  7\n  \n \n \nconflict with the other two specialists who have treated and examined the \nclaimant.  \nDr. Blankenship’s opinion that the claimant is entitled to a thirteen \npercent (13%) rating to the body as a whole is unreasonable and \ndisproportionate when weighed against Dr. Saer’s findings that there were \nno objective findings on which to base an impairment rating, and Dr. \nBruffett’s opinion that the claimant potentially sustained a minor tear, which \nwould entitle him only to a five percent (5%) impairment rating.  There is no \nevidence in the record to suggest that the claimant has more than a minor \ninjury coupled with degenerative changes. \n It is unreasonable to find that the claimant, who has not undergone \nsurgery and who suffers from degenerative changes to his low back, with \nno clear objective findings, is entitled to a thirteen percent (13%) \nimpairment rating. The clear evidence in the record supports a finding that \nthe claimant is entitled to the five percent (5%) rating previously accepted \nand paid by the respondents.  The claimant has failed to meet his burden of \nproof to the contrary.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":9647,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H003073 KENNETH BREWTON, EMPLOYEE CLAIMANT MAY AVENUE PLUMBING, EMPLOYER RESPONDENT UNITED FIRE & CASUALTY COMPANY, RESPONDENT INSURANCE CARRIER/TPA OPINION FILED AUGUST 5, 2025 Upon review before the FULL COMMISSION in Little...","outcome":"granted","outcomeKeywords":["granted:3","denied:1"],"injuryKeywords":["back","knee","shoulder","lumbar","herniated"],"fetchedAt":"2026-05-19T22:29:44.073Z"},{"id":"alj-G708582-2025-08-05","awccNumber":"G708582","decisionDate":"2025-08-05","decisionYear":2025,"opinionType":"alj","claimantName":"Linda Bradley","employerName":"Pine Bluff School District","title":"BRADLEY VS. PINE BLUFF SCHOOL DISTRICT AWCC# G708582 August 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRADLEY_LINDA_G708582_20250805.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRADLEY_LINDA_G708582_20250805.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                 CLAIM NO.: G708582 \nLINDA BRADLEY,  \nEMPLOYEE                                                                                                             CLAIMANT \n \nPINE BLUFF SCHOOL DISTRICT,  \nEMPLOYER                                                                                                         RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION WCT, \nTPA/CARRIER                                                                                                    RESPONDENT \n \n \n             OPINION FILED AUGUST 5, 2025    \n       \nHearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK in Pine Bluff, \nJefferson County, Arkansas. \n \nClaimant, pro se/unrepresented, appeared for the hearing. \n \nRespondents represented  by the  Honorable Melissa  Wood, Attorney at  Law,  Little  Rock, \nArkansas. \n \nStatement of the Case \nOn May  8,  2025, the  above-captioned  claims came  on  for a full hearing in Pine  Bluff, \nArkansas.  A prehearing telephone conference  was  conducted in  the  above-styled  claims on \nNovember 17, 2024, by Administrative Law Judge Jay O. Howe, from which a Prehearing Order \nwas  filed on that  same  day.  A  copy  of  said order and  the parties’ responsive  filings have  been \nmarked as Commission’s Exhibit 1 and made a part of the record without objection.   \nStipulations \nDuring the prehearing telephone conference, and/or hearing the  parties  agreed  to  the \nfollowing stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n\nBRADLEY-G708582 \n2 \n \n2. That  the  employee-employer-carrier  relationship  existed  at  all  relevant  times \nincluding on December 4, 2017, when the Claimant sustained compensable injuries \nto her neck and right shoulder. \n \n3. The Claimant’s average weekly wage was $416.37,  which  would  entitle  her  to \ntemporary  total  disability benefits in  the  amount  of  $278.00  per  week, and \npermanent partial disability compensation in the amount $209.00 per week.  \n4. On  June  9,  2022,  Dr.  Charles  Pearce  assigned  the  Claimant  a  4%  permanent \nimpairment  rating to  the  person  as  a  whole. The  Respondents  accepted  and  paid \nthis rating accordingly.  \n \n5. On April 12, 2024, the Full Commission entered an Opinion affirming and adopting \nan earlier ALJ Opinion on certain claims previously litigated.  The Law of the Case \nDoctrine applies accordingly.   \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether the Claimant is entitled to an additional permanent partial disability rating, \nabove the 4% impairment rating previously paid to her by the Respondents for her \nshoulder injury of December 4, 2017. \n \n2. Whether the Claimant is entitled to additional medical benefits for her compensable \ninjuries. \n \n3. All other issues are reserved. \nContentions \n The respective contentions of the parties are as follows: \nClaimant:  \nThe Claimant contends she is entitled to additional indemnity benefits to compensate her \nfor  the  difficulties  that  she  continues  to  experience  since her  December  4,  2017,  injury.   She \nadditionally claims entitlement to additional medical benefits.  \nRespondents: \nThe  Respondents contend that  all  appropriate  benefits  have  been  paid  with  regard  to \nClaimant’s injuries sustained on December 4, 2017. \n\nBRADLEY-G708582 \n3 \n \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear the testimony of the witness and observe her demeanor, I hereby make the following findings \nof fact and conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.      The Arkansas Workers’ Compensation Commission has jurisdiction over this \n      claim.    \n        \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.       The Claimant failed to prove by a preponderance of the evidence her entitlement to            \n      any additional permanent impairment benefits. \n           \n          4.            The Claimant proved by a preponderance of the evidence her entitlement to any \n                         additional medical benefits for her December 4, 2017, compensable injuries.       \n            \n          5.           All issues not litigated herein are reserved.              \n             \nSummary of Evidence \nMs. Linda Bradley (referred to herein as the “Claimant”), was the only witness to testify at \nthe hearing.  \n            The  record  consists  of  the May 8,  2025 hearing  transcript and  the following exhibits: \nSpecifically, Commission’s  Exhibit 1 includes  the  Commission’s  Prehearing  Order filed  on \nNovember 8,  2023 and  the  parties’ responsive  filings; Respondents’ Exhibit  No.  1 is  a \nRespondents’ Hearing Exhibit Index of Medicals comprising of four totaled pages; Respondents’ \nExhibit No. 2 is a Respondents’ Hearing Exhibit Index of  Non-Medicals  consisting  of  fourteen \nnumbered pages; Respondents’ Exhibit No. 3 is a prior ALJ Opinion filed on November 17, 2023,  \nconsisting of sixteen numbered pages; and the Hearing Transcript of August 10, 2023 was marked \nas Respondents’ Exhibit No. 4.  It is retained in the Commission’s file.  The Full Commission’s \n\nBRADLEY-G708582 \n4 \n \nApril  12,  2024,  Opinion  was  inadvertently  left  out  of  the  hearing  transcript.    It  has  been  blue-\nbacked and made a part of the record in this present claim.   \n                                                          History \n At the time of the hearing, the Claimant was sixty-three years of age.  She testified that she \nworked for the Pine Bluff School District as a para-professional, assisting disabled students.  It is \nundisputed that the Claimant was injured on December 4, 2017, when a student suddenly ran into \nthe building unaccompanied.  The Claimant ran after the student and she tripped and fell, injuring \nher right shoulder and neck.   \n The Respondents accepted the claim as compensable and began paying benefits to and on \nbehalf of the Claimant.  However, the Claimant confirmed that her primary injury was to her right \nshoulder.  An MRI revealed a tear in her right shoulder.  Although the Claimant did not recall the \nexact date of her shoulder surgery, the record shows that Dr. Gordon performed this surgery on \nApril 19, 2018.    \n She  confirmed  that  the  Respondents paid  her temporary  total  disability  compensation \nfollowing  her  surgery.   Ultimately,  the  Claimant  was  assigned  a  4%  impairment  rating  for  her \nshoulder injury.  She confirmed that the Respondents paid her eighteen weeks of benefits for this \nimpairment rating. \n The Claimant admitted that she is asking for an increased rating above the previously paid \n4% rating for her compensable right shoulder injury of December 4.  She further admitted that she \nhas no medical documentation to support her claim for these other benefits.  Her testimony shows \nthat she believes that she is entitled an additional rating for her shoulder injury due to chronic pain.  \nPer the Claimant, she experiences pain daily, and it has not ceased since her accident. \n\nBRADLEY-G708582 \n5 \n \n She described shooting pain in her shoulder that interferes with her activities of daily living, \nsuch as combing hair, daily grooming, and simple things like picking up pots and pans.  According \nto the Claimant, she also has difficulty sleeping.   \n Currently, she takes hydrocodone for her shoulder, which is prescribed by a doctor at the \nPain Treatment Centers of America, which is located in White Hall.  The Claimant readily admitted \nthat the only symptoms she has relating to her shoulder is pain.  She maintained that she has sought \nmedical treatment on her own for her shoulder condition in the form of injections, a TENS Unit, \nand physical therapy.  Despite this treatment, the Claimant maintained that her shoulder pain has \ncontinued since  her  compensable  injury. The  Claimant  maintained  that  an  implant  is  being \nrecommended for her shoulder, but she is afraid to undergo this procedure. However, no medical \ndocumentation has been presented in this regard to support a finding for an additional surgery.  \n On cross-examination the Claimant verified that she got a change of physician to treat with \nDr. Ahmadi at UAMS.  According to the Claimant, Dr. Ahmadi wanted to perform surgery, but he \nleft the clinic before he could perform the surgery.  That is the reason the Claimant began treating \nDr. Pearce.\n1\n  He released the Claimant from his care in July 2021.   \n The  Claimant  admitted  that  during  the  last  hearing,  she  agreed  that  the  treatment  she \nreceived from her primary care provider and Pain Treatment Centers of America was unauthorized.  \nAs a result, the Respondents did not pay for this medical care. \n On July 27, 2021, Dr. Charles Pearce released the Claimant from his care.  He returned the \nClaimant to full duty work with no restrictions.  At that time, he assigned the Claimant a 4% whole \nperson impairment rating for her right shoulder injury. \n                        \n \n \n1\n Although there is testimony from the Claimant referencing a “Dr. Pierce,” she is actually referring to Dr. \nCharles Pearce, which is the correct spelling of his last name.    \n\nBRADLEY-G708582 \n6 \n \n                Discussion \n This is the second hearing in this claim.  The first hearing was held on August 10, 2023. \nALJ Howe rendered an Opinion in that claim on November 17, 2023. At that time, the Claimant \nasserted that she was entitled to wage loss and permanent and total disability benefits.  ALJ Howe \nfound that the Claimant failed to prove by a preponderance of the evidence that she was entitled \nto  any  additional  benefits  sought  in  connection  with  her  compensable  injuries.   The  Full \nCommission affirmed and adopted this decision in an Opinion issued on April 12, 2024.   \n Now, the  Claimant  contends  that  she  is  entitled  to  additional  medical  treatment  for  her \ninjuries and an additional rating above the 4% rating, which has been previously accepted and paid \nby the Respondents.   \n The relevant law at issue is outlined below: \nAn employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn. § 11-9-508(a).  The Claimant bears the burden of proving by a preponderance of the evidence \nthat  medical  treatment  is  reasonably  necessary.   Stone  v.  Dollar  General  Stores,  91  Ark.  App. \n260, 209 S.W.3d 445 (2005). \n  Permanent  impairment  is  any  functional  or  anatomical  loss  remaining  after  the  healing \nperiod has been reached.  Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994).  \nThe  Commission  has  adopted  the  American  Medical  Association Guides  to  the  Evaluation  of \nPermanent  Impairment (4\nth\n ed.  1993)  to  be  used  in  assessing  anatomical  impairment.   See \nCommission Rule 34; Ark. Code Ann. §11-9-522(g) (Repl. 2012).  It is the Commission’s duty, \nusing  the Guides,  to  determine  whether  the Claimant  has  proved she  is  entitled  to permanent \nanatomical impairment.  Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).      \n\nBRADLEY-G708582 \n7 \n \nAny determination of the existence or extent of physical impairment shall be supported by \nobjective  and  measurable  physical  findings.    Ark.  Code  Ann.  §11-9-704(c)(1)  (Repl.  2012).  \nObjective findings are those findings which cannot come under the voluntary control of the patient.  \nArk. Code Ann. §11-9-102(16)(A)(i) (Repl. 2012).   \nPermanent  benefits  shall  be  awarded  only  upon  a  determination  that  the  compensable \ninjury was the major cause of the disability or impairment.  Ark. Code Ann. §11-9-102(F)(ii)(a) \n(Repl. 2012).  “Major cause” means “more than fifty percent (50%) of the cause,” and a finding of \nmajor cause shall be established according to a preponderance of the evidence.  Ark. Code Ann. \n§11-9-102(14) (Repl. 2012).  \n Preponderance of the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).      \n Here,  the  Claimant  did  not  offer  persuasive  testimony proving her  entitlement  to  any \nadditional medical treatment for her compensable injuries of December 4, 2017.  Nor did she offer \nany medical documentation or probative evidence recommending additional medical treatment for \nher compensable injuries of  December  4,  2017.  Under  these  circumstances,  I  am  compelled  to \nfind that the Claimant failed to prove by a preponderance of the evidence her entitlement to any \nadditional medical treatment for her compensable injuries sustained in December 2017. \n Regarding an additional impairment rating for her right shoulder, the Claimant has offered \nno objective medical findings to support her claim for an additional impairment rating.  Her sole \ncomplaint is pain.  Pain is subjective in nature and does not constitute an objective medical finding \nsufficient to increase her impairment rating for her shoulder to anything above the 4%, previously \naccepted and paid by the Respondents.  \n \n\nBRADLEY-G708582 \n8 \n \n                                                           ORDER \nBased  on  the  foregoing  Conclusions  and  Findings  of  Facts,  this  claim  for  additional \nbenefits is hereby denied and dismissed in its entirety.  \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE","textLength":13942,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: G708582 LINDA BRADLEY, EMPLOYEE CLAIMANT PINE BLUFF SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WCT, TPA/CARRIER RESPONDENT OPINION FILED AUGUST 5, 2025 Hearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK in Pine Bluff...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:2"],"injuryKeywords":["neck","shoulder"],"fetchedAt":"2026-05-19T22:36:59.821Z"},{"id":"alj-H302750-2025-08-05","awccNumber":"H302750","decisionDate":"2025-08-05","decisionYear":2025,"opinionType":"alj","claimantName":"Kevin Briggs","employerName":"Utc Railcar Repair Services, LLC","title":"BRIGGS VS. UTC RAILCAR REPAIR SERVICES, LLC AWCC# H302750 August 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRIGGS_KEVIN_H302750_20250805.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRIGGS_KEVIN_H302750_20250805.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                                CLAIM NO.:H302750 \n \nKEVIN BRIGGS, EMPLOYEE  CLAIMANT \n \nUTC RAILCAR REPAIR SERVICES, LLC,   \nEMPLOYER                                                                                                              RESPONDENT    \n                                        \nOLD REPUBLIC INSURANCE COMPANY/ \nCONSTITUTION STATE SERVICES, LLC, \nCARRIER/TPA                                                                                                         RESPONDENT  \n \n \nOPINION FILED AUGUST 5, 2025 \n             \nHearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in Texarkana, \nMiller County, Arkansas. \n \nClaimant represented  by the Honorable GREGORY R.  GILES, Attorney  at  Law, Texarkana, \nArkansas. \n \nRespondents represented  by the  Honorable SCOTT  ZUERKER, Attorney at  Law, Fort  Smith, \nArkansas. \n \n \n      STATEMENT OF THE CASE \nOn May 6, 2025, the above-captioned case came on for a hearing before the Commission \nin Texarkana, Arkansas.  A pre-hearing telephone conference was held in this matter on February \n12, 2025.  A Pre-hearing Order was entered on that same day.  The parties’ pre-hearing information \nfilings have been made a part of the record without objection; and thus, been marked accordingly, \nas Commission’s Exhibit No. 1. \n During the pre-hearing telephone conference, and/or at the hearing, the parties agreed to \nthe following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n2. The employee-employer-insurance carrier relationship existed among the parties, on  \n\nBRIGGS– H302750 \n2 \n \nMarch 16\n1\n, 2023. \n \n3. The Claimant’s  average  weekly  wage was $908.72 on  the  day  of  his  alleged \ncompensable injury.  His weekly compensation rates are $672.00 for temporary total \ndisability/TTD, and $467.00 for temporary total disability/TTD.  \n \n 4.     The Claimant reached maximum medical improvement/MMI on September 24\n2\n, 2024. \n \n 5.     The Claimant received short-term disability in the amount of $321.00 per week, which  \n                    the Respondents are entitled to an offset in the event indemnity benefits are awarded. \n \n6.     The Respondents have controverted this claim in its entirety.     \n    \n7.     The parties agreed that all issues not litigated herein are reserved under the Arkansas   \n        Workers’ Compensation Act.        \n         \n8.     During the hearing, the parties stipulated that if the Claimant drew unemployment \n        benefits during a period that overlaps with the award of temporary total disability      \n                 compensation, then Respondents are entitled to an offset.  (Tr. 47)  \n During the  pre-hearing  telephone conference, the  parties  agreed  to  litigate  the  following \nissues:   \n1. Whether  the  Claimant  sustained  a  compensable  injury  to  the  left shoulder/bicep \nrupture on March 16, 2023, during and in the course of his employment with the \nrespondent-employer. \n \n2. Whether the Claimant is entitled to temporary total disability benefits from April \n28, 2023, through September 23, 2024. \n \n3. Whether  the  Claimant  sustained  a 4%  impairment  and  wage-loss  disability \n(Claimant’s counsel amended this issue from 2% to 4% at the beginning of the \nhearing Tr. 9).  \n \n4. Whether the Claimant is entitled to reasonable and necessary medical treatment of \nrecord, as well as future treatment.  \n \n5. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \n \n \n \n1\n The Claimant’s counsel amended the Claimant’s injury from March 17, 2023, to March 16.  \n  \n \n2\n Counsel also amended the Claimant’s MMI date from September 23, 2024, to September 24.    \n\nBRIGGS– H302750 \n3 \n \n The Claimant’s and Respondents’ contentions are set out in their respective response to the \npre-hearing questionnaire and those made at the beginning of the hearing.  Said contentions are as \nfollows: \n Claimant:  \n The Claimant contends that he sustained a compensable injury to his left shoulder on or \nabout March 17, 2023. \n He  contends  that  the  medical  treatment  he  has  received  to  date  has  been  reasonable, \nnecessary, and related to his compensable injuries such that Respondents should be ordered to pay \nfor same. \n The  Claimant  contends  entitlement  to  temporary  total  disability  benefits  from  April  28, \n2023, through September 23, 2024. \n He also contends the medical treatment received to date has been reasonably necessary and \nrelated such that the Respondents should be ordered to pay for same, including reimbursement to \nBlue Cross Blue Shield for any expenses paid for medical treatment.  \n The  Claimant  contends  the  Respondent  should  be  ordered  to  pay  attorney’s  fees  as \nprovided by law. \n At the beginning of the hearing, the Claimant contended that he is entitled to a 25% wage \nloss disability. \nRespondents: \n The Respondent contends that they have controverted this claim in its entirety. \n                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nFrom a review of the record as a whole, to include medical reports, documentary evidence, \nand other matters properly before the Commission, and having had an opportunity to listen to the \n\nBRIGGS– H302750 \n4 \n \ntestimony of the Claimant and observe his demeanor, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n      2.      I hereby accept the above-mentioned proposed stipulations as fact. \n            3.      The Claimant proved by a preponderance of the credible evidence that he sustained a  \n                     compensable injury to his left shoulder on March 16, 2023, during and in the course \n                     and scope of his employment with UTC.       \n                      \n 4.     The Claimant proved by a preponderance of the credible evidence that all the medical  \n         treatment of record was reasonably necessary in connection with the left shoulder      \n         injury received by him.  No further medical treatment has been recommended for the   \n         Claimant’s left shoulder injury.  \n \n5.     The Claimant proved his entitled to temporary total disability compensation from  \n        April 28, 2023, through and until September 23, 2024.  \n \n6.     The Claimant proved by a preponderance of the evidence that he sustained a 5% whole \n        person permanent impairment for his left shoulder injury. \n \n7.    The Claimant proved by a preponderance of the credible evidence that he sustained  \n       wage loss disability in the amount of 22%.   \n \n8.   The parties stipulated that the Respondents have controverted this claim in its entirety.       \n      Therefore, the Claimant’s attorney is entitled to a controverted attorney’s fee on the  \n       indemnity benefits awarded to the Claimant herein.  \n                    \nSummary of Evidence \n The entire record is made up of the May 6, 2025, hearing transcript, which includes the \ndocumentary  evidence  of Commission’s Exhibit No.  1; Claimant’s Exhibit No.  1,  which  is  an \nAbstract of the Table of Contents consisting of 13 pages; and Claimant’s Exhibit No. 2 includes \nthe Table of Contents comprising eight pages and 308 numbered pages of medical records. The \nClaimant, Kevin Briggs, was the only witness to testify during the hearing. \n                                     \n \n\nBRIGGS– H302750 \n5 \n \n                HEARING TESTIMONY \n  \nMr. Kevin Briggs/the Claimant \n As of the date of the hearing, the Claimant was 53 years of age.  He graduated from high \nschool in 1992.  Majority of the Claimant’s high school and school years included regular classes, \nbut  he also  took some  special  education  classes.    According  to  the  Claimant, he  was  diagnosed \nwith dyslexia and ADD/attention deficit disorder around the age of five.  The Claimant confirmed \nthat he ended up having to repeat some grades in school along the path.  He specifically testified \nthat he repeated the 2\nnd\n and 6\nth\n grades.  The Claimant confirmed that he can read and do simple \nmath.    However,  the  Claimant  denied  that  he  attended  any  college  or  vocational  school after \ngraduating from high school.  Per the Claimant’s testimony, he served as a volunteer firefighter \nfor roughly 18 years.  He stopped volunteering with the fire department in 2009.  The Claimant \nconfirmed that during his years as a volunteer firefighter, he had to go through some certifications \nand training associated with his firefighting service. \n About the Claimant’s alleged injury, he confirmed that he is asserting an injury while \nworking for Union Tank Car/UTC Repair Service, on March 16, 2023.  He began working there \nin November 2022.  The Claimant testified that he was hired in to repair tanks, rail, and hopper \ncars.  \n The Claimant testified: \nQ Can you describe the general job duties, the expectations of that job in terms \nof what you were doing there on a daily basis? \nA I was assigned a car and was given a tablet with each repair that needed to \nbe done either by welding, cutting, replacing parts, or generalizing things like that. \nQ Well, maintaining and repairing the railcars? \nA Yes. \nQ What  type  of  lifting  and carrying  of  weights  were  expected  to  have  to  be \nable to carry out from day to day? \nA It varies from day to day, but some of the heaviest was a hundred pounds \nthat we had to pick up and put back onto the car. \n\nBRIGGS– H302750 \n6 \n \n \n According to the Claimant, he has prior work experience doing this same or similar type \nof work before he went to work for UTC.  According to the Claimant, he had previously performed \nthis type of work for about five years.  However, in terms of doing welding and maintenance type \nof work, the Claimant has been doing that type of work over the years for various places over the \nlast 18  to  20  years.      His  hourly pay at  the  time  of  hire for  UTC  was  $21.39.    The Claimant \nconfirmed  that  his  pay  remained  unchanged  on  the  day  of  his  alleged  injury.   Typically,  the \nClaimant worked a standard 40-hour workweek, with some overtime.  According to the Claimant, \non average, each week he worked 45 to 48 hours.  The Claimant testified that he worked the night \nshift, which was from 7:00 p.m. until 8:00 a.m., the next morning.  \n When the Claimant went to work for UTC, he was on medications for diabetes and back \npain.  The Claimant confirmed that he takes hydrocodone for his back.  He confirmed that he has \nundergone two prior back surgeries, one in 2011 and another one in 2012.  Per the Claimant, he \ntakes two 7.5 milligrams of hydrocodone, twice a day to manage his pain.  The Claimant is insulin-\ndependent, he confirmed that he had this condition at the time of his hire with the railcar company.  \nHe testified that he takes Effexor for his temper, which helps to calm him down.  The Claimant \nalso suffers from high blood pressure, which is controlled with medication.  In addition to these \nconditions,  the  Claimant had problems with  his  neck  and  wrists  prior  to  going  to  work  for  the \nrailcar company.  He testified that he started having issues with his wrists in 2013 or 2014.  Per \nthe Claimant, his problems with his wrists began with pain that radiated into his hands and fingers.  \nHis neck issues started in 2003 or 2004.  The Claimant testified that he has occasional flare-ups of \ninflammation, for which he gets a shot to boost and bring down the inflammation.   \n Before his employment with the railcar company, the Claimant admitted that he had prior \ntreatment  for his  left  shoulder,  in  the  form  of  injections.   The  Claimant  testified  that  he  was \n\nBRIGGS– H302750 \n7 \n \ndiagnosed with bursitis in the left shoulder.  He testified that prior symptoms of the left shoulder \nfor  which  he  sought  medical  treatment  included  stiffness  and some pain.    According  to  the \nClaimant, he had some pain but “not a whole lot of pain.”  The first time he sought treatment for \nhis left shoulder was in 2016 or 2017.  However, the Claimant denied that he ever had to see a \nspecialist  for  his  left  shoulder.    The  Claimant  did  not  recall  having  an  MRI  of  the  left  shoulder \nprior to his alleged work-related accident of March 16, 2023.   \n When the Claimant began working for UTC, his family doctor was Wendy Gammon.  Prior \nto his alleged work injury of March 16, 2023, the Claimant confirmed that when he saw her on \nJanuary 14, 2023, he complained of stiffness and some pain.  Per these medical notes, Dr. Gammon \nreported  in  the  history part of  her  clinical  notes that the  Claimant  had bursitis,  for  which joint \ninjections provided relief  in  the  past.    The  Claimant  confirmed  that  this  is correct and  what  he \nreported to Dr.  Gammon.  He testified that she gave him an injection in his shoulder, which helped \nto relieve his symptoms.   \n The Claimant confirmed that prior to March 16, 2023, he performed all aspects of his job \nwith the railcar repair company.  He denied missing any days from work due to his left shoulder \ncondition. \n On  March  16,  2023,  the  Claimant  testified  that  he  lifted  the  car  and  removed  the  wheel \nsets.  According to the Claimant, he used heavy duty hydraulic jacks to pick up one end of the car, \nso  that  he  could  remove  the entire wheel  set.  He agreed  that  he  was  lifting  the  car  up, to get \nunderneath it.  Once the Claimant had it lifted above him, he testified that he used a pair of pliers \nto take the wheel sets off.  Next, the Claimant rolled the wheel set out, and started to remove the \nwheels so that he could spread the side frame apart to replace what is called the brake beam.  At \nthat point, the Claimant was swinging a sledgehammer that weighed roughly ten pounds.  \n\nBRIGGS– H302750 \n8 \n \n The Claimant’s counsel questioned him further: \n Q    These sides that you’re describing, what is it that ......   \n Why would you need a hammer to do that? \n A    Certain frames, side frames, they had what they called a ride  \n cushion, which is, basically, a wedge that just free floats, and they  \n            are tight all the time, so you have to take a hammer, a sledgehammer \n to hit the inside of the side frame to spread the side frame out so that  \n            we can get that part out. \n Q    All right.  So as you described the process, what were you doing then?  \n            A    I had taken the one side set of wheels off and started hitting the \n           inside of the side frame with the sledgehammer, and as I was swinging, \n            that’s when I felt and heard the pops in my shoulder the two pops in my \n           shoulder. \n Q    In your left shoulder? \n A    My left shoulder.  Yes, sir. \n Q    When you say you heard pops, what did you hear?  \n A    Almost like a .22 going off. \n Q    What sort of pain did you experience? \n A    Extreme pain. \n Q    Where was your pain? \n A    Throughout my shoulder. \n Q    Can you be more specific? \n A    The sides and the front. \n Q    If you’ll describe for us, when you say the front, where are you  \n             talking about? \n A    Where my biceps connect to my shoulder.    \n Q    When you say the side, where are you talking about? \n            A    The area where the rotator cuff is. \n  \n The  Claimant  further  explained  that  his  pain  was  on  the  left  side  of  the  top  of  his left \nshoulder.  According to the Claimant, he tried to continue working but figured out really quick he \ncould not do so.  The Claimant confirmed that he at once reported what had happened to him to \nhis managing lead person, Jeff Sapp.  Although there were others working in proximity with the \nClaimant, no one saw his incident.  Per the Claimant, he was working alone.  \n About the  reporting  of  his  injury  to  Mr.  Sapp,  the  Claimant  testified  that  he  told  him  to \nreport his  injury  to the  area  manager,  Michael  Delgado.  At  that  point,  Mr.  Delgado  had  the \nClaimant fill out an incident report and gave him an ice pack to put on his shoulder.  Thereafter, \n\nBRIGGS– H302750 \n9 \n \nMr. Delgado sent the Claimant home for the night.  Next, the Claimant was shown a copy of his \nexhibit, which was from page 41.  The Claimant confirmed that it is the statement that he provided \nmanagement.  This statement mirrors the Claimant’s testimony.  He admitted to having signed the \ndocument. \n The  Claimant confirmed  that  he  sought  medical  attention  from  the  company  doctor, the \nnext morning, on March 17, 2023.  He admitted that he treated initially with Dr. Raker at Ark-La-\nTex Health.  At that time, the Claimant testified that he had pain in the top part of his shoulder, \nand he could hardly move it.  Per the Claimant, he could barely reach down to tie his shoes.  Dr. \nRaker  took  x-rays  and  placed  the  Claimant’s  arm in  a sling  and  placed  him  on  light  duty \nrestrictions.  The Claimant ended up seeking treatment with Dr. Raker four times.  Ultimately, Dr. \nRaker ordered an MRI of the Claimant’s left shoulder.  The Claimant admitted that workers’  \ncompensation paid for the visits he had with Dr. Raker. \n Next,  the  Claimant  was  shown  an  exhibit  packet  with  documents showing that  the \nrespondent-employer controverted the claim on May 2.  After they denied the claim, UTC did not \ncontinue to offer him light duty work.  The Claimant agreed that his last day of work was April \n28, 2023.   He confirmed that he was able to follow-up with a specialist after he underwent the \nMRI.  Dr. Mitchell evaluated the Claimant after he had the MRI.  On May 19, 2023, he performed \nsurgery on the Claimant’s shoulder.  The Claimant paid  for  the  surgery using his own personal \nhealth insurance, Blue Cross, and Blue Shield.  However, he had to pay for out-of-pocket expenses, \nsuch as deductibles, and things of that nature.  Per the Claimant, he has paid approximately $600.00 \nfor out-of-pocket expenses.   \n According to the Claimant, he had the surgery because “the ligament in his biceps had torn \nloose” from his shoulder.  As a result, they had to go in and repair it by reattaching it.  After his \n\nBRIGGS– H302750 \n10 \n \nsurgery, the Claimant underwent physical therapy for roughly eight or nine weeks.  The Claimant \nconfirmed  that  surgery  helped  his  shoulder.    While  off  work,  the  Claimant  drew short-term \ndisability for about six months.  Thereafter, he ended up applying for long-term disability and for \nshort-term disability for a brief period of time.  He confirmed that Aflac paid him approximately \nfour or five checks, which totaled $1,800.00. \n The Claimant agreed that Dr. Mitchell’s progress notes and physical therapy records from \nSeptember 6, 2023, show that Dr. Mitchell ordered a follow-up MRI and arthrogram because he \nwas  having  symptoms  of  pain  and  still  did  not  have  full  mobility  of  his  arm.    The  Claimant \nspecifically explained, “I couldn’t pick my arm up and straight out lift it up, and I couldn’t twist \nmy arm in any direction without pain.”  However, Dr. Mitchell did not have any recommendations \nafter  these  diagnostic  tests  were  ordered.  The  Claimant  testified  that he  saw Dr.  Syed for \nhydrocodone pain management.  He admitted that after the MRI and arthrogram had been ordered, \nDr. Mitchell wanted to refer him for an injection in his neck to see if that might be creating some \nof the symptoms he had been complaining about.   \n Ultimately, the Claimant was able to get an injection in the neck that had been suggested \nto him by Dr. Syed.  He denied that this treatment modality provided him with any relief of his \nsymptoms about his shoulder.  The Claimant confirmed that Dr. Mitchell referred him to another \ndoctor,  Dr.  Sharp,  for  an  impairment  rating.    He  admitted  that  he  saw  Dr.  Sharp  just for  one \nevaluation which was on September 23, 2024.  The Claimant agreed that Dr. Sharp conducted an \nexamination of his shoulder and arm.  Per the Claimant, Dr. Sharp lifted his arm up and moved it \naround and did some measurements.  According to the Claimant, Dr. Sharp spent approximately \none hour with him.  Dr. Sharp did not assign him any written physical restrictions or limitations.  \nHe denied he had a job with UTC by the time Dr. Sharp addressed his permanent impairment.        \n\nBRIGGS– H302750 \n11 \n \n  The Claimant confirmed that UTC sent him a letter on November 8, 2023, informing him \nthat they could  not  continue  to  hold  his  job.   At that point, Dr. Sharp  assigned  the  Claimant  an \nimpairment rating.  The Claimant testified that his shoulder was still limited in terms of how he \ncould move it.  He explained more specifically the condition of his shoulder and the limited range \nof motion: “Being able to pick my arm up and out to the side still pain with some rotation.  Like \nholding my arm up and twisting it side to side.”  According to the Claimant, he experiences a lot \nof pain if he tries to stick his arm straight out to the left side.  He denied being able to fully extend \nhis arm straight out to his left side, without severe pain.  However, the Claimant admitted that he \ncould move his left arm in front of him directly.  The Claimant denied that he could move his arm \nin front of him and take it up over his head.  \n Per  the  Claimant,  he can lift, carry, and  manage  fifteen  pounds.    The  Claimant  further \ntestified that anything more than that causes his arm to hurt.  He testified that it causes him to try \nand pull his arm straight out to the side, but if he moves it to the side that is where the problem \ncomes in.   \n He  confirmed  that  he  has  performed  some  job  searches  for  work.    Per  the Claimant,  his \nefforts  include  online  applications.    The  Claimant  testified  that  he  has  put  in  approximately \nseventeen  applications.    According  to  the Claimant,  he  has  put  in  applications  for  a  forklift \noperator,  anything  relating  to  operating  equipment,  office  work,  and  warehouse  type  jobs.   The \nClaimant  denied  that  he  would  be  able  to physically do  the type  of  work at  UTC he  was doing \neven if his job had still been available.  In the job at UTC, the Claimant explained that you must \nput your  arms  and  body  in  awkward  positions  to  be  able  to  get  to  what  you need to  work  on.  \nAccording  to  the  Claimant, he must be  able  hold  his  arms  straight  out,  sideways,  and  crawl  in \nholes.    The  Claimant  also  denied  that  he  would  be  able  to  perform  any  of  the  welding  jobs  he \n\nBRIGGS– H302750 \n12 \n \nperformed  in  the  last  eighteen  years.  He  testified  that  he  would  not  be  able  to  put  his  arms  in \ncertain positions to do the job, because his shoulder will not allow him to do that type of work.  \nHis  deposition  testimony shows that  years  ago  he  worked  as  a  security  officer.   The  Claimant \ndenied that he would be able to work as a security officer.  He agreed that he could manage the \npart  of observing and watching,  but  he  would  not  be  able  exert  physical  force.    The  Claimant \ndenied  that  he  has  had  an  interview  or  gotten  a  response  from  anybody  in  terms  of getting  an \nopportunity to interview for a job.  He confirmed that he applied for unemployment benefits and \ndrew $2,300.00 for three or four months.     \n Financially,  the  Claimant  testified  that  his  wife  works.    He  explained  that  without  his \nincome, it is incredibly stressful.  The Claimant agreed that he is in the process of applying for \nSocial Security Disability benefits but has not completed the process.  He confirmed he has been \nout of the work force for two years.  According to the Claimant, his physical activities since he has \nnot been working and have not had  a job to be able to return to work is limited.  However, the \nClaimant can operate and drive a vehicle.  He lives in a house, and can take care of his own lawn, \nexcept for the weed eating.  Per the Claimant, he is not able to do any weed eating because he is \nunable to swing the weed eater around.  He uses a zero-turn lawn mower.  The Claimant can do \nsimple  things  such  as  getting  groceries out  of the  car.    He  denied  having  any  hobbies,  such  as \nhunting and fishing.  He spends his free time on his tablet, doing housework and yard work, using \nthe mower.  The Claimant continues to look for work.  He does stretches, but he does not have \nweights or anything of that nature.  The Claimant was sent home with bands to use but they started \nto deteriorate.   \n Since  October  2023,  the  Claimant  has  not  returned  to  Dr.  Mitchell  for  any  follow-up \nmedical  treatment.   He  continues  to  take  hydrocodone,  which  is  being prescribed for  his  back \n\nBRIGGS– H302750 \n13 \n \nissues that he has had since 2014 or 2015.  According to the Claimant, the pain medication provides \nhim with benefits (pain relief) for his shoulder condition.  He stated that he believes his arm does \nnot have as much range of motion and strength now as it did when he saw Dr. Sharp.  He confirmed \nthat he saw Dr. Hugghins for a second opinion evaluation of his shoulder.   The Claimant testified \nthat he examined his arm and shoulder.  He spent about an hour with the Claimant examining his \narm.  He described the nature of his examination as the same as what Dr. Sharp performed.  The \nClaimant  confirmed  that  he  took  control  of  his  arm  and  did  some  measurements.    He also \nconfirmed that the Respondents have not paid for his medical treatment or compensated him for \nthe  permanent  impairment  of  his  shoulder.    The  Claimant  confirmed  that  he  is  asking  for \nconsideration of the higher impairment rating of 4%. \n Doctors  placed  the  Claimant  at  maximum  medical  improvement  for  his  shoulder  in \nSeptember of 2024.  He testified that he is asking for wage-loss disability of 25%.  He confirmed \nthat his average weekly wage at the time of his accident was $932.00 a week.  The Claimant has \nnot been able to earn any money since his doctor released him from care. \n On cross-examination, the Claimant was again asked to confirm that before March 2023, \nhe had prior problems with his left shoulder.  However, he testified that after the incident, he had \na different kind of problem.  He admitted that he has gone riding four wheelers since his accident.  \nThe Claimant confirmed that James McShane sent a letter in November terminating him.  At that \ntime, he offered the Claimant the ability to come back and re-apply or be re-hire.  He admitted that \nhe has not applied for work at UTC since his release.  The Claimant was asked if there was a reason \nfor him not applying for a position with the company.  He replied, “I don’t know if this politically \ncorrect but bad blood.”  The Claimant admitted that he does not want to return to work for them.  \nHe admitted that he was not aware of any security jobs that involved monitoring and had no risk \n\nBRIGGS– H302750 \n14 \n \nof getting involved in an altercation.  The Claimant admitted that he has not looked or tried to find \na security job.  He confirmed that he does not believe he could perform that type of job.  \n The Claimant admitted that he worked for Lowes’s at one point.  He testified that he could \nstill  do  that  type  of  work,  depending  on  the  type  of  lifting  involved  in  the  job.  The  Claimant \ntestified that depending on the department, you must lift anywhere from half a pound to as much \nas twenty-five pounds.  He agreed that Lowe’s has multiple departments.  The Claimant admitted \nthat he has not looked for any kind of work in customer service or retail.  However, the Claimant \ntestified that he has narrowed his focus down in terms of looking for work involving jobs such as \na forklift driver.  The Claimant confirmed that he has a job history of operating heavy equipment \nsuch  as a forklift  driver.    He agreed  that  there  are  jobs  outside  that  field  that  might  have  jobs \navailable, but he has not even considered.  The Claimant denied that he is contending he is unable \nto work.   \n Under further cross examination, the Claimant testified: \nQ  And the sad reality of it is there are all kinds of jobs out there that you feel like \nyou can do, it’s just that no one has given you a chance or even offered you an \ninterview? \nA  Correct. \nQ  So that doesn’t really have anything to do with your physical ability to do the \njob, they’re just not giving you a chance to get a foot in the door, are they? \nA  No.  \n The Claimant confirmed that he drew unemployment benefits in Arkansas last year.  He \nwas unable to recall if he drew these benefits before or after Dr. Mitchell sent him for a rating.  Per  \nthe Claimant, he was unsure whether he went for the rating in March 2024.  He testified that he  \napplied for a job at Amentum.  According to the Claimant, they repair a lot of things and have  \ncontracts with Red River Army Depot.  He confirmed that he previously worked at the Depot.  The  \nClaimant agreed that he could drive a tractor trailer.  However, the Claimant denied that he has \n\nBRIGGS– H302750 \n15 \n \nexplored job opportunities in that field.         \n On redirect examination, the Claimant “bad blood” with UTC.  He testified that they fought  \nhis claim for unemployment benefits, and just the way they let him go.  According to the Claimant,  \nUTC told the hearing officer he voluntarily left although he had paperwork saying they let him  \ngo.  Per the Claimant, as a result, it is a buildup of things.  The Claimant confirmed that he has put \nin a number of applications, but he is not getting an interview.  He agreed that with him being out \nof the workforce for the last two years and potentially a gap in his resume plays a part in him  \ngetting a call back.  \n On recross examination, the Claimant testified that he could use his left arm, and it is fully  \nfunctional for a lot of things, it is mostly a positional issue.  He confirmed that he testified during \nhis deposition that he can drive his zero-turn mower.  The Claimant admitted that it involves  \npushing and pulling levers out in front of him and he can do that type of activity.  He confirms \nthat those controls would be similar to the controls in a bobcat or a skid steer.  The Claimant agreed  \nthat when he has past work involving working out at a landfill and running heavy equipment.  He \nadmitted that he operated a dozer, what they call a scraper.  The Claimant testified that it is a piece \nof equipment that has a belly pan that scrapes up dirt, packer similar to what you see on the roads \n when they are packing the dirt.  Per the Claimant, he has never used a backhoe. \n The Claimant confirmed that as a forklift driver, the going rate is $21.00 an hour.  He was  \nnot sure of the rate of pay for a dozer driver.  He testified that he has not had any prior accidents  \ninvolving his left arm.  The Claimant stated that he has not been hunting or fishing in many years.   \nPer the Claimant, he got rid of his boat in 2019.  \n                         \n \n\nBRIGGS– H302750 \n16 \n \n                   MEDICAL EVIDENCE \n A review of the medical records shows that the Claimant sought medical attention for his \nprimary care under the attention of Wendy Gammon, FNP-C, FNP.  The Claimant has been treated \nfor several conditions unrelated to his alleged shoulder injury.  These conditions include insomnia, \ndepression,  obesity  and  hyperlipidemia,  vitamin D  disorder,  diabetes,  high  blood  pressure,  and \nanxiety disorder. \n The  Claimant  sought medical  attention  for  his  left  shoulder from  Nurse  Gammon \ndiagnosed the Claimant with left shoulder bursitis, on January 14, 2023.   \n On March 16, 2023, Jeff Sapp, a coworker, wrote the following statement: \nI (Jeff Sapp) was walking past Kevin Briggs about 11:30 to 11:45 as he was taking apart \nsome side frames.  I witnessed him pick a sledge hammer up and prepare to swing it.  From \nwhat I saw Kevin started to swing it like putting a golf ball.  Kevin put very little effort \ninto the swing and suddenly started to stumble.  Kevin came up to me shortly after that and \ntold me that he thinks he messed his shoulder up.  I referred him to Michael Delgado to \nreport his injury. \n \n Mr. Jeff Gregory authored a note on March 17, 2023.  He wrote: \nI (Jeff Gregory) witnessed Kevin Briggs working on a set of trucks that required a set of \nbrake beams to be changed out.  He was in the process of spreading the side sills far enough \napart  to  remove  the  old  beams  using  a  sledgehammer.    This is normal  and  a  pry  bar  is \nusually all that it takes.  In this case I never actually saw him swing the hammer to move \nthe side sill.  I did notice him dragging the hammer to his work areas prior to any work \nbeing done.  This was approximately 30 minutes after the start of the shift.  He waited till \nshortly after he drug the hammer to his work area to come report that he hurt his shoulder \nto the Area Manager who was covering for the night shift supervisor who was on vacation.  \nI never actually saw him swing the hammer.    \n \n On March 17, 2023, the Claimant sought medical attention under the care of Dr. James D.  \nRaker.  At that that time, the Claimant’s chief complaint was very severe frequent sharp shoulder \npain  on  the  left.   X-rays of the Claimant’s shoulder revealed no gross fractures, dislocation, or \nother defects.  Dr. Raker diagnosed the Claimant with an “unspecified strain of the left shoulder \n\nBRIGGS– H302750 \n17 \n \njoint.”  The Claimant reported the date of injury as being March 16, 2023.  He gave a history of \nswinging a long hand 9-pound hammer, midswing and his left shoulder popped twice.  Per these \nclinic notes, the Claimant had two prior back surgeries and three knee surgeries.  Dr. Raker noted \nthat the Claimant was already on opinions because of two prior back surgeries.  The Claimant’s \nsubjective complaints show that on a numerical rating scale of 0 to 10, he had a value rating of 9 \ndue  to frequent  sharp  shoulder  pain  on  the  left.    Dr.  Raker  stated that  his observation  of  the \nClaimant revealed a normal level of physical flinching guarding that coordinated with the level of \nmuscle spasm reported by the patient.  The Claimant was instructed to perform home  exercises \nand follow up in three days.  Dr. Raker instructed the Claimant to use cold packs, and OTC meds \nwere discussed.   \n The Claimant was seen in a follow-up clinic by Dr. Raker on March 20, 2023.  At that time, \nthe Claimant reported a history of any motion invoking severe pain in the shoulder.  Passive motion \nby Dr. Raker caused pain at 80 degrees of abduction and with both internal and external rotation.   \nPer  these  clinical  notes,  Dr.  Raker  stated  that  the  Claimant  needed  an  urgent  MRI  of  the  left \nshoulder due to severe due to risk of frozen shoulder due to immobility.  Also, Dr. Raker stated \nthat the Claimant was at risk for a frozen shoulder due to immobility.  As a result, he instructed \nthe Claimant to perform daily home exercises.  Dr. Raker instructed the Claimant follow-up for \nreevaluation in five days. \n Dr. Raker saw the Claimant for follow-up evaluation on March 24, 2023, due to his left \nshoulder condition.  The Claimant reported an improvement in his symptoms compared to his last \nvisit.  On physical examination, Dr. Raker noted that he observed that the Claimant had an increase \nin abduction  with  less  pain,  but  internal  rotation was still “very  limited and  very  painful.”  Dr. \nRaker noted that the Claimant’s pain level was at a level of 6 with frequent sharp shoulder pain on \n\nBRIGGS– H302750 \n18 \n \nthe left which was quite an improvement since the previous treatment.  On that same say, Dr. Raker \nreferred the Claimant for an MRI of the left shoulder.     \n On April 6, 2023, Dr. Raker reported that the MRI showed proximal biceps tendon with \n6cm tear, and DJD in the AC joint.  He referred the Claimant for an orthopedic surgeon evaluation.    \n An MRI of the Claimant’s left shoulder was performed on April 6, 2023.  Dr. Douglas A. \nTrippe rendered the following IMPRESSION:   \n1.  Acute full-thickness tear and retraction of the proximal biceps tendon.  Tendon appears     \n     retracted approximately 6 cm.  \n2.  Diffuse abnormal signal of the superior labrum consistent with tear and/or edema.   \n     Discrete tear at the base of labrum extends both anteriorly and posteriorly. \n3.  Left supraspinatus tendon: Advanced tendinosis with partial tear/articular surface    \n    erosion. \n4.  Left infraspinatus tendon: Moderate tendinosis with tiny partial insertional tear. \n5. Moderate DJD at the AC joint with mild subacromial spurring.  \n \n Per a Form AR-N, the Claimant made a report of injury on April 11, 2023.  Specifically,   \nthe Claimant provided a brief discussion of the cause of injury: “I was swinging an 8-pound sledge \nhammer from left to right in midswing my left shoulder popped twice.”  \n On  April  21,  2023,  Dr.  Feit  Sheldon authored  an Age  of  Injury  Report Abnormal \nRadiological Findings.   \n CONCLUSION: The findings are chronic in nature. \n SUMMARY: \n       1.  Impingement on the supraspinatus muscle secondary to hypertrophic change at the \n                       at the acromioclavicular joint-chronic. \n       2.  Partial tearing of the distal supraspinatus tendon-chronic. \n       3.  Joint effusion-chronic. \n       4.  Superior labral fraying-chronic.  \n \n Dr. Darius F. Mitchell evaluated the Claimant’s left shoulder on  May  3,  2023.   The \nClaimant  reported  a  history  of  being  injured  on  March  17,  while  swinging  a  10-pound \n\nBRIGGS– H302750 \n19 \n \nsledgehammer, when he felt a pop in his upper arm.  The Claimant appeared with weakness with \nsupination and flexion pain.  Dr. Mitchell opined in relevant part. \n IMAGING \n            My interpretation of the films is MRI that is MRI that shows a retracted acute proximal \n            biceps tendon rupture with coiling of the proximal biceps tendon and a residual superior \n labral  stump  also  shows  rotator  cuff  changes  in  the  articular  side  of the  superior  labral \n degenerative change of the AC joint.     \n \n PLAN: \nThis gentleman needs surgical intervention.  He works as a welder he has a proximal biceps \nrupture and will have weakness.  He stated to me that his work comp is trying to decide \nwhether or not this is an acute injury.  Per the patient this is because the MRI report says \nthere is a retraction of the long head of the biceps obviously whoever is interpreting this \ndata does not understand the way a long head of a biceps tendon injury occurs rotator cuff \ntears  that  are  retracted  dealing  with  chronic  injuries  but  biceps  tendon  ruptures  or  other \ntendons that have retractions have nothing to do with chronicity there is edema and blood \nin his biceps tendon groove there is retraction because it acutely snapped while swinging \nthis sledge hammer. This is something that occurred at work, his biceps was normal the \nday he showed up and now he does not have the long head of the biceps attachment and \nhas a Popeye sign.  I do not know how more clear this could be this occurred while he was \nat  work  unless  you  just  do  not  understand  pathoanatomy.    I  believe he  needs  a  biceps \ntenodesis,  SLAP  debridement,  bursectomy  and  probably  distal  clavicle  excision.    I  have \nsuggested that if he does not get this approved that he should hire a lawyer because this is \na clear-cut-case of work-related trauma.  Risks, benefits, and convalescence were discussed \nto  include  but  not  limited  to  infection,  would  complications,  DVT,  PE,  disability,  blood \nvessel and nerve injury and up to an including death.      \n \nAn Operative Report was completed by Dr. Mitchell on May 19, 2023. \nPre-Op Diagnosis \nLeft proximal biceps rupture \n \nPost-op Diagnosis \nBiceps rupture, proximal \n \nProcedure Performed: \n1.  Arthroscopic subacromial decompression. \n2.  Arthroscopic distal clavicle excision. \n3.  Arthroscopic SLAP debridement. \n4.  Arthroscopic bursectomy. \n5.  Open subpectoralis biceps tenodesis. \n \n\nBRIGGS– H302750 \n20 \n \n On May 31, 2023, the Claimant saw Cody Ray, FNP-BC, for follow-up of his left shoulder \narthroscopy,  with  Dr.  Mitchell two  weeks  ago.   Operative  findings were discussed  with  the \nClaimant.  He seemed to be doing quite well.  Ray noted that the Claimant also underwent proximal \nbiceps tenodesis.  He had a proximal biceps rupture.  The Claimant had been doing fairly well with \nminimal  complaints  of  pain.    They  discussed  limiting  weight  that  he  uses  on  his  left  upper \nextremity to no more than a coffee cup.  Since the Claimant’s work did not have light duty, Ray \ngave  the  Claimant  another  four  weeks  off  work.    He  was  scheduled  to  start  physical  therapy  to \nwork  on his range of motion.  Ray’s assessment was “Biceps rupture, proximal, left, initial \nencounter.”     \n The Claimant underwent physical therapy at Wadley Regional Medical Center beginning \non June 16, 2023, through August 15, 2023. \n On September 6, 2023, the Claimant returned to Dr. Mitchell for follow-up of his rotator \ncuff repair.  Per these progress notes, the Claimant was five months out of rotator cuff repair.  The \nClaimant was given an injection, but it really did not give him a lot of relief.  He stated that this \nwas  most  likely  scar.  Dr. Mitchell’s assessment was “Biceps rupture, proximal, left, on initial \nencounter.”  At that point, Dr. Mitchell’s concern was that he possibly had a rotator cuff tear, for \nwhich  he  recommended an MRI  arthrogram  to  evaluate  his  left  shoulder.  He  continued  the \nClaimant’s off work restrictions.    \n The Claimant underwent a left shoulder arthrogram MRI with contrast, on September 29, \n2023, with the following impression: \n  1. High- grade partial-thickness articular surface tear of the subscapularis tendon  \n       superimposed on mild tendinosis. \n  2. High-grade tear of the intra-articular long head of the biceps tendon. \n                        3. Mild supraspinatus insertional tendinosis. \n  4. Mild glenohumeral and moderate acromioclavicular osteoarthritis.    \n           5. Mild subacromial/subdeltoid bursitis.  \n\nBRIGGS– H302750 \n21 \n \n On that same day, the Claimant underwent a LEFT shoulder arthrography: \n \n  FINDINGS: There has been opacification LEFT glenohumeral joint.  There is no  \n  abnormal extracapsular contrast seen.  Scout film demonstrates calcification  \n  adjacent to the humeral head consistent with calcific tendinitis. \n \n  Impression: Successful opacification LEFT glenohumeral joint prior to an MRI  \n                        Arthrogram.  Plain film findings consistent with calcific tendinitis.   \n \n Dr.  Mitchell  saw  the Claimant  for a follow-up visit for  discussion and  interpretation  of \nMRI of the left shoulder, on October 16, 2023.  At that time, Dr. Mitchell’s interpretation of the \nfilms was inflammation of the subscapularis and supraspinatus, at the upper border there is a partial \ntear.  Absent biceps tendon with an obvious biceps tendon tenodesis in the humeral shaft.  SLAP \ndebridement as not as well as distal clavicle excision.  No sign of an acute rotator cuff tear.  His \nassessment was “Biceps rupture, proximal, left, initial encounter.”  At that point, they planned an \ninjection in his neck.  With a normal MRI assume that he does not have a rotator cuff insertional \nissue nor does he have any sign of atrophy other than Grade 1 in his cross-sectional anatomy of \nsupraspinatus.  He recommended that they proceed with the neck injection because he believed his \ncondition was most likely neurologic in nature.   Dr. Mitchell directed the Claimant not to return \nto work until cleared by a physician. \n On December 6, 2023, Dr. Harold Fite authored a clinic note.   Per these medical notes, the \nClaimant presented  for  back pain.  Dr.  Mitchell  referred  the  Claimant  for  evaluation  of  his  left \nshoulder pain as well as pain the upper extremities and numbness in the hands at times.  It appears \nthat  Dr.  Mitchell  was  concerned  there  may  be  a component  of  cervical  radiculopathy  involved \nsince the Claimant had continued pain with the use of his shoulder and weakness following left \nshoulder surgery.    On physical examination, the Claimant had fairly maintained cervical range of \nmotion, pain limited to range of the left shoulder.  Positive Tinel’s test of at the wrist bilaterally, \n\nBRIGGS– H302750 \n22 \n \nupper extremity strength and sensation were grossly intact.  As a result, Dr. Fite recommended a \ncervical MRI.  He also discussed the possibility of epidural steroid injections as a treatment option.  \n The Claimant was  evaluated  by  Dr. Ifequar Syed  on  January  29, 2024, due  to  a  chief \ncomplaint of chronic low back pain.  Dr. Syed stated that his chronic low back pain could be related \nto his job as a welder although the Claimant reported a history of back pain since his teens.  The \nClaimant was reported to have undergone lumbar discectomy in June 2011 and a lumbar fusion in \n2012.  He continued the Claimant’s medication regimen while he still continues to recover from \nhis surgery.  Dr. Syed noted that he needed a copy of the recent left shoulder MRI.  \n On  April  10,  2024,  the Claimant  returned  for  a  follow-up  evaluation  with  Dr.  Syed  and \nmedication  review.      He recommended  that  the  Claimant see  a  neurosurgeon  again.    Dr.  Syed \nopined that the Claimant’s problem seemed to be centered around his left shoulder and aggravated \nby both active and passive movements.  However, Dr. Syed stated that a cervical MRI might be \nneeded to rule out any contributing pain from the cervical spine.    \n The  Claimant  underwent  a  cervical  epidural  steroid  injection  at  C5-6  level  interlaminar \napproach with fluoroscopic guidance on June 21, 2025. \n Dr. Syed saw the Claimant for a follow-up evaluation and medication review on August \n26, 2024.  The Claimant reported that he did not have much relief with the left shoulder injection.  \nHe was still having pain and limited range of movements at the left shoulder.  Also, the Claimant \nreported reduced abduction, abduction and extension of the shoulder which is also associated with \npain.  The Claimant was told there was a tear, but it was uncertain whether this was the cause of \nhis continued pain.  Dr. Syed opined that the Claimant’s problems seem to be centered around his \nleft shoulder and aggravated by both active and passive movements.  \n\nBRIGGS– H302750 \n23 \n \n Dr. Richard B. Sharp evaluated the Claimant on September 23, 2024, for a determination \nof maximum medical  improvement  and  an  impairment  rating for  his shoulder.   The  Claimant \ndescribed the painful range of motion at the left shoulder, which was accompanied by weakness.  \nHe is unable to lift over 5 to 10 pounds on the left.  He is right-handed.  Functionally the Claimant \nwas noted to have difficulty with overhead movement and heavy lifting on the left.  Pursuant to \nDr. Sharp’s physical examination of the Claimant, his assessment was “1.  Strain of muscle of the \nrotator cuff of left shoulder.  2. Strain of fascia of other parts of biceps of left arm.  3. SLAP lesion \nof left shoulder.” He opined that his injury to his shoulder was consistent with the work-related \ninjury he described of “slinging a sledgehammer.” At that time, Dr. Sharp opined that the Claimant \nwas  at  maximal  medical  as  of  September  24, 2024, for  his  left  shoulder  surgery.  According  to \nthese clinical notes, Dr. Sharp stated that no further intervention to the Claimant’s left shoulder \nwas needed.  Based on page 44, figure 41, the Claimant would receive 4% UEI for left shoulder \nabduction 90 degrees and 0% for normal abduction.  Specifically, Dr. Sharp opined “Based on the \nAMA Guides to the Evaluation of Permanent Impairment, Fourth Edition, combining these would \ngive a 4% upper extremity impairment rating, or a 2% whole percent impairment rating.”   \n The Claimant underwent an impairment rating on April 8, 2025, by Dr. Joe Hugghins for \nhis  left  shoulder.    Per  these  notes,  the  purpose  of  Dr.  Hugghins  physical  examination was  to \ndetermine two issues: “1.   Whether  the  Claimant  reached  maximum  medical  improvement.    2. \nAppropriate impairment should b e assessed.  His physical examination of the Claimant revealed \nlimited range of motion in the left shoulder compared to the right.  Dr. Hugghins stated that all \nR.O.M.  studies  using  dual  inclinometer  or  goniometer  as  required  as  required  by  TWCC  as \noutlined in the AMA Guides to Permanent Impairment, Fourth Edition.  He stated that the Claimant \nreached clinical maximum medical improvement on August 26, 2024, for the left bicep injury that \n\nBRIGGS– H302750 \n24 \n \noccurred on March 16, 2023.  Dr. Hugghins stated that there were no diagnosis related impairments \nfor surgically repaired biceps tendon rupture.  He utilized physical examination findings to assess \nimpairment.  According to this note, Dr. Hugghins utilized the rating motion values obtained in \nhis  office  on  April  8,  because  they  most  closely  resemble  the  range  values  documented  in  Dr. \nSyed’s  evaluation  on  August  26,  2024.   To  summarize,  Dr.  Hugghins  used  the  following \ninformation to reach his assessment “... According to Figure 38 maximum left shoulder flexion of \n155 ° yields 1% Upper Extremity Impairment and maximum extension of 32° also yields 1% Upper \nExtremity Impairment.  The sum of these values is 2% Upper Extremity Impairment.  According \nto Figure 41, maximum abduction of 88 ° yields 4% Upper Extremity Impairment and maximum \nabduction of 42° yields 0% Upper Extremity Impairment.  The sum of these values is 4% Upper \nExtremity Impairment.  According to Figure 44, the maximum internal rotation of 62° yields 2% \nUpper  Extremity  Impairment,  and  maximum  external rotation  74° yields  0%  Upper  Extremity \nImpairment.  The sum of these values is 2% Upper Extremity Impairment.  When the 2% Upper \nExtremity Impairment for flexion/extension is added to the 4% Upper Extremity Impairment for \nabduction/adduction  and  the  2%  Upper  Extremity  Impairment  for  internal/external  rotation,  the \nsum  of  these  values  is  8%  Upper  Extremity  Impairment...  When  the  8%  Upper  Extremity \nImpairment for the left shoulder is added to the 0% Upper Extremity Impairment for the left elbow, \nthe total Upper Extremity Impairment is 8% ... According to Table 3 on page 20, 8% Upper \nExtremity Impairment converts to 5% Whole Person Impairment.             \n                                \n \n \n \n\nBRIGGS– H302750 \n25 \n \n         ADJUDICATION \n \n A.  Compensability- Specific Incident Right Shoulder Injury   \n The Claimant has alleged that he sustained a specific incident injury to his right shoulder \nduring and while in the course and scope of his employment with the respondent-employer, UTC \nRailcar Repair Service on March 16, 2023.     \n In that regard, for the Claimant to establish a compensable injury as a result of a specific \nincident, the following requirements of Ark. Code Ann. §11-9-102(4)(A)(i) (Repl. 2012), must be \nestablished:  (1)  proof  by  a  preponderance  of  the  evidence  of  an  injury  arising  out  of  and  in  the \ncourse of employment; (2) proof by a preponderance of the evidence that the injury caused internal \nor external physical harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. §11-9-\n102 (4)(D), establishing the injury; and (4) proof by a preponderance of the evidence that the injury \nwas caused by a specific incident and is identifiable by time  and place of occurrence.   Mikel v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).   \n A  compensable  injury  must  be proven by  medical  evidence  supported  by  objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings \nthat  cannot  come  under  the  voluntary  control  of  the  patient.   Id.  §  11-9-102(16).  The  element \n“arising out of . . . [the] employment” relates to the causal connection between the Claimant’s \ninjury  and their employment.   City  of  El  Dorado  v.  Sartor,  21  Ark.  App.  143,  729  S.W.2d  430 \n(1987).    An  injury  arises  out  of  a Claimant’s employment “when a causal connection between \nwork conditions and the injury is apparent to the rational mind.” Id. \n If the Claimant does not show by a preponderance of the evidence any of the requirements \nfor proving compensability, compensation must be denied.  Mikel v. Engineered Specialty Plastics, \n\nBRIGGS– H302750 \n26 \n \n56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard means evidence that has greater weight \nor more convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet \nCove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n The  employer  takes  the  employee  as  he  finds  him.   Conway  Convalescent  Center  v. \nMurphree, 266 Ark. 985, 585 S.W. 2d 462 (Ark. App. 1979).  A pre-existing disease or infirmity \ndoes  not  disqualify  a  claim  if  the  employment  aggravated,  accelerated,  or  combined  with  the \ndisease  or  infirmity  to  produce  the  disability  for  which  compensation  is  sought.   See,  Nashville \nLivestock Commission v. Cox, 302 Ark. 69, 787 SW. 2d 664 (1990); Conway Convalescent Center \nv.  Murphree, 266  Ark.  985,  585  S.W.  2d  462  (Ark. App.  1979); St. Vincent  Medical  Center  v. \nBrown,  53  Ark.  App.  30,  917  S.W.2d  550  (1996).  An  increase  in  symptoms  of a pre-existing \ndegenerative condition is sufficient to establish a compensable injury.  Parker v. Atlantic Research \nCorp., 87 Ark. App. 145, 189 S.W. 3d 449 (2004).    \n An aggravation is a new injury resulting from an independent incident, and being a new \ninjury with an independent cause, it must meet the definition of a compensable injury in order to \nestablish compensability of the aggravation.  Hickman v. Kellog, Brown  & Root, 372 Ark. 501, \n277 S.W. 3d 160 (2007).   \n After reviewing the evidence as a whole, without giving the benefit of the doubt to either \nparty,  I  find  that  the Claimant  has  proven  by  a  preponderance  of  the credible evidence  that  he \nsustained  a  specific  incident  injury  to  his  shoulder  on March  16,  2023 in the  form  of “a left \nproximal bicep rupture.”  \n As  noted  above,  the  courts  have  held  in  several  cases  that  an  increase  in  symptoms \nfollowing a work-related accident is sufficient proof to prove compensability of the aggravation.  \nThis is the identical situation with the Claimant’s left shoulder condition following the March 16, \n\nBRIGGS– H302750 \n27 \n \n2023, incident, which occurred while he was slinging a 10-pound sledgehammer.  His left shoulder \npain  following  this  incident  was  severe  and  sharp  in intensity.   It  is clearly understood  that  the \nClaimant  suffered  from  pre-existing buritis of  the  left  shoulder  for  which  he  sought  medical \ntreatment.   The  Claimant  underwent  prior  non-surgical  treatment  modalities  consisting  of \ninjections.  This treatment provided the Claimant with relief of his symptoms of pain and stiffness, \nand he continued with his normal employment duties and activities of daily living.  His testimony, \nwhich I found to be credible proves that he never missed work due to left shoulder problems and \nhe did not recall ever having to undergo an MRI of the left shoulder prior to his work incident.   \nHowever,  on March 16,  2023,  the  Claimant  was  involved  in  a  work  incident,  which  caused  a \nsignificant  worsening  of  his  left  shoulder condition  that  differed  from  his  average  stiffness  and \npain.  The Claimant reported that his pain following the work incident, which was frequent, very \nsevere, and  sharp.  According  to  the  Claimant,  while  swinging  a  10-pound sledgehammer to \nremove  brakes,  his  shoulder  popped  twice,  which  was  accompanied  by  an immediate onset  of \nshoulder pain.  He immediately stopped working and reported his injury to the lead person.   \n The Claimant sought initial treatment for his shoulder injury from the company doctor, Dr. \nRaker, with minimal improvement in his left shoulder symptoms.  The Respondents paid for this \ntreatment  and  thereafter  they  controverted  the  claim  in  its  entirety.  At  which  point,  Dr.  Raker \nrecommended that the Claimant undergo an MRI of the left shoulder.  \n I am persuaded that the Claimant’s description of the work incident is consistent with the \ntype  of  injury  he  sustained to  his  shoulder.   Specifically,  on  April  6, 2023, an  MRI  of  the \nClaimant’s left shoulder revealed, among other things, “An acute full-thickness tear and retraction \nof the proximal biceps tendon...” These abnormalities are sufficient to establish an injury to the \nClaimant’s left shoulder by  medical  evidence  supported  by  objective  findings.    Although  Dr. \n\nBRIGGS– H302750 \n28 \n \nSheldon opined that these findings along with the other findings are all chronic in nature, I am not \npersuaded  that  this  is  the  case  here.    Given  the  fact  that  the  magnitude  of  the Claimant’s left \nshoulder pain significantly intensified in severity, sharpness and frequency leads me to conclude \nthat he sustained a work-related left shoulder injury.  As such minimal weight has been assigned \nto his expert opinion in this regard. However, I have assigned significant weight to Dr. Mitchell’s \nexpert  opinion  wherein  he  stated  that  the  Claimant’s  work  activities  caused  the  above \nabnormalities and his need for left shoulder repair surgery, which he performed on May 19.  Dr. \nMitchell provided an expert opinion wherein he stated that the Claimant sustained a work-related \ninjury.  I am persuaded that his expert opinion should be assigned significant weight because it is \nbased  on a  well-reasoned  explanation  for the  basis  of this  being  a  work-related  injury.  Per  Dr. \nMitchell’s reasoning, there was blood and edema in the Claimant’s bicep tendons groove and there \nwas retraction because it acutely snapped while swinging this sledgehammer.  This accounts for \nthe Claimant’s increase in symptoms following his work-related incident.   \n Therefore,  based  on  all  of  the  foregoing,  I  find  that  the  Claimant  has met  all  of  the \nrequirements for establishing a compensable injury to his left shoulder on March 16, 2023.  Thus, \nI therefore find that the Claimant proved by a preponderance of the evidence that he sustained a \ncompensable injury to his left shoulder on March 16, during and in the course of his employment \nwith the respondent-employer/UTC Railcar Repair Services. \n I realize that the Claimant’s coworkers made written statements about the Claimant’s work \nincident.  Considering that the Claimant was not  given the opportunity to  cross-examine and/or \nconfront  these  individuals  about  their statements,  I  have  attached  minimal  weight  to  these \nstatements.   \n \n\nBRIGGS– H302750 \n29 \n \n \n B.  Medical Benefits \nAn employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn. § 11-9-508(a).  The Claimant has the burden of proving by a preponderance of the evidence \nthat the medical treatment is reasonably necessary.  Stone v. Dollar General Stores, 91 Ark. App. \n260, 209 S.W. 3d 445 (2005).   \nPreponderance of the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nBased  on  my  review  of  the  record  as  a  whole,  I  find  the  Claimant  proved by  a \npreponderance of the evidence that the medical treatment of record was reasonably necessary in \nconnection  with  the compensable left  shoulder  injury  received  by  the  Claimant  on  March 16, \n2023.   \nAll the treatment modalities were used to diagnosis and treat the Claimant’s left shoulder \ninjury, including the surgery performed by Dr. Mitchell on May 19, 2023, along with the physical \ntherapy sessions,  follow-up  care appointments,  diagnostic  tests, and the  other subsequent \nevaluations for his left shoulder. \nPer Dr. Sharp, no further medical treatment is indicated for the Claimant’s shoulder injury.  \nC. Temporary Total Disability Compensation  \nHere, the Claimant contends that he is entitled to temporary total disability compensation \nfor his shoulder injury beginning April 28, 2023, and continuing until September 23, 2024. \n\nBRIGGS– H302750 \n30 \n \nThe Claimant sustained an unscheduled injury to his shoulder on March 17, 2023, while \nperforming his employment duties for UTC Railcar Repair Services.  An injured employee for an \nunscheduled injury is entitled to temporary total disability compensation during the time that he is \nwithin his healing period and totally incapacitated from earning wages.  Arkansas State Highway \nand Transportation Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  The healing \nperiod is that period for healing of the injury which continues until the employee is as far restored \nas the permanent character of the injury will permit.  Nix v. Wilson World Hotel, 46 Ark. App. 303, \n879 S.W.2d 457 (1994).  If the underlying condition causing the disability has become stable and \nnothing further in the way of treatment will improve that condition, the healing period has ended.  \nId.  Temporary total disability cannot be awarded after the Claimant’s healing period has ended.   \n In  the  present  case,  the  Claimant  remained  in  his  healing  period  for  his  compensable \nshoulder injury beginning March 16, 2023, and continuing until September 24, 2024.  In fact, the \nparties have stipulated that the Claimant reached maximum medical improvement for his shoulder \ninjury on September 24, 2024.  As such I find that the evidence shows that the Claimant healing \nperiod  began  on  March  16, 2023, and continued until  September  24,  2024.    Also, the  Claimant \nremained  under  the  care  and  treatment  of  various  doctors beginning  on  March  17, 2023, and \ncontinued to do so during this period in question.  \n Moreover,  the  evidence  shows  that  the  Claimant  was  totally  incapacitated  from  earning \nwages during this same time frame. The Claimant was taken off work and/or placed on restricted \nwork duty during this time.   The Respondents initially provided the Claimant with light duty work, \nbut  his  option  was stopped after  they controverted the  claim.   Following  his  work  incident,  the \nClaimant  complained  of  limited  range  of  motion  and  severe  pain  in  his  left  shoulder.    After  an \nMRI revealed a bicep tendon rupture injury, the Claimant underwent left shoulder surgery on May \n\nBRIGGS– H302750 \n31 \n \n19,  2023,  and  thereafter  attended  several  physical  therapy  sessions.   Here,  the  evidence  clearly \nshows  that  the  Claimant  was  totally  incapacitated  from  earning  his  regular  wages  at  least  from \nApril 28, 2023, through September 23, 2024.   \n Therefore, based on all the foregoing, I find that the Claimant proved by a preponderance \nof  the  evidence  his entitlement to  temporary  total  disability compensation from  April  28,  2023, \nthrough September 23, 2024.        \n D.  Anatomical Impairment Rating     \n The Claimant contends that he sustained a 4% impairment due to his compensable left \nshoulder injury of March 16, 2023.     \n  Permanent impairment generally is any functional or anatomical loss remaining after the \nhealing period has been reached.  Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 \n(1994).    The  Commission  has  adopted  the American  Medical  Association (AMA) Guides  to  the \nEvaluation of Permanent Impairment (4\nth\n ed. 1993) to be used in assessing anatomical impairment.  \nSee Commission Rule 099.34; Ark. Code Ann. §11-9-522(g) (Repl. 2002).  It is the Commission’s \nduty, using the Guides, to determine whether the Claimant has proved he is entitled to a permanent \nanatomical impairment.  Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).      \n Any determination of the existence or extent of physical impairment shall be supported by \nobjective and measurable physical mental findings.  Ark. Code Ann. §11-9-704(c)(1) (B) (Repl. \n2012).  Objective findings are those findings which cannot come under the voluntary control of \nthe patient.  Ark. Code Ann. §11-9-102(16)(A)(i).   \n Permanent  benefits  shall  be  awarded  only  upon  a  determination  that  the  compensable \ninjury was the major cause of the disability or impairment.  Ark. Code Ann. §11-9-102(F)(ii)(a) \n(Repl. 2012).  “Major cause” means “more than fifty percent (50%) of the cause,” and a finding of \n\nBRIGGS– H302750 \n32 \n \nmajor cause shall be proven according to a preponderance of the evidence.  Ark. Code Ann. §11-\n9-102(14).    Preponderance  of  the  evidence  means  the  evidence  having  greater  weight  or \nconvincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 \n(2003).   Medical  opinion  addressing  compensability  and  permanent  impairment  must  be  stated \nwithin a reasonable degree of medical certainty.  Ark. Code Ann. §11-9-102 (16) (B).   \nI find that the Claimant sustained a 5% impairment for his compensable left shoulder of \nMarch 16, 2023.  On May 19, 2024, Dr.  Mitchell performed left shoulder surgery as described \nabove.  The Claimant had no prior left shoulder injuries or complaints, although his MRI of April \n2024  of  the  left  shoulder  revealed  pre-existing  degenerative  changes.   The  Claimant  had \noccasionally treated for bursitis, with injections that provided him with relief from his symptoms, \nand he was able to continue his work and home activities without any difficulties.   However, the \nClaimant  had  previously  experienced  stiffness  and  minor  aches  and  pain  of the  left  shoulder.  \nHowever,  following  his  work  incident,  the symptoms  and  complaints of the  Claimant’s  left \nshoulder  was  significantly  magnified  in  intensity  and  frequency.   The  Claimant’s  treating \nphysician,  Dr.  Mitchell  attributed  the  Claimant  left  biceps  rupture  injury  to  his  employment \nactivities of March 16.  In addition to this, both Drs. Sharp and Hugghins related the Claimant’s \nleft bicep tendon injury to his work injury.    \nHowever, both Drs. Sharp (his assessment was 2% impairment rating) and Hugghins (he \nfound that the Claimant sustained a 5% rating) have assessed the Claimant with an impairment for \nhis injury.  I have assigned minimal weight to Dr. Sharp’s expert analysis of 2% whole person \nimpairment rating because it does not take into account all of the Claimant’s resulting deficits from \nhis compensable left shoulder injury.  Dr. Hugghins’ assessment is well-reasoned and comports \nwith my review of the Guides.    \n\nBRIGGS– H302750 \n33 \n \nOn April 8, 2025, Dr. Hugghins assessed the Claimant with a 5% permanent anatomical \nimpairment for his biceps injury, using the AMA Guides (4\nth\n ed. 1993), at page 3/20, Table 3, which \nprovides for the Relationship of Impairment of the Upper Extremity to Impairment of the Whole.  \nPer Table  3,  an  upper  extremity  impairment  of  8%  converts  to  a  5% impairment to the whole \nperson.   Dr.  Hugghins stated  that  he  utilized his physical  examination  findings  to  assess  the \nClaimant’s impairment to the shoulder.  Specifically, his physical examination of the Claimant’s \nleft shoulder when compared to the right was found to be limited in all R.O.M. studies performed \nusing dual inclinometer or goniometer as required by the AMA Guides to Permanent Impairment, \nFourth  Edition. The  Claimant’s  own  credible  testimony  is  consistent  with  Dr. Hugghins’ \nconclusion and other probative evidence of record demonstrating deficits of his limited range of \nmotion in the left upper extremity.  As such, I have assigned significant evidentiary weight and \nprobative value to Dr. Hugghins’ expert opinion.   \nAccordingly, I find that the Claimant has proven by a preponderance of the evidence that \nhis March 16, 2023, accidental injury was the major cause of his 5% permanent partial anatomical \nimpairment.   The  supporting objective  medical  findings  include  the range  of  motion  deficits as \ndocumented by Dr. Hugghins during his April 2025 physical examination of the Claimant’s left \nupper extremity region. \n Per my own review of the entire record and the Guides, I find that Dr. Hugghins’ assessment \nof a 5% permanent anatomical impairment for the Claimant’s compensable left shoulder injury of \nMarch 16, 2024, comports with the Guides and my own review of the Guides, and is thus valid.       \nI therefore find that the Claimant has proved by a preponderance of the evidence that he sustained \na 5% anatomical impairment on the body as a whole for his compensable left shoulder injury.  The \nRespondents are liable for payment of these indemnity benefits. \n\nBRIGGS– H302750 \n34 \n \n E.  Wage Loss \n The Claimant contends that he sustained a 25% wage loss disability due to his compensable \nleft shoulder injury of March 16, 2025. \n The  wage-loss  factor  is  the  extent  to  which  a  compensable  injury  has  affected  the \nClaimant’s ability to earn a livelihood.  Rutherford v. Mid-Delta Cmty.  Servs., Inc., 102 Ark. App. \n317, 285 S.W. 3d 248 (2008).  In considering claims for permanent partial disability benefits in \nexcess of the employee’s percentage of permanent physical impairment, the Commission may take \ninto account, in addition to the percentage of permanent physical impairment, such factors as the \nemployee’s age, education, work experience, and other factors reasonably expected to affect his \nfuture earning capacity. Ark. Code Ann. §11-9-522 (b) (1). \n The Claimant is 53 years of age.  His age is somewhat advanced, and he  has performed \nlaborious job duties all his life, primarily as a welder.  The Claimant has a very limited educational \nbackground  which  includes  some  resource  classes.    He  has  no  special skills  or training.    The \nClaimant can do simple math, and he reads on an extremely basic level.  He has limited range of \nmotion in his shoulder due to his compensable injury of March 16, 2023.  He is unable to return to \nwork  as  a welder  but believes  he could operate  heavy  equipment.    The  Claimant  has  been \ndiagnosed  with attention  deficit  disorder  and  dyslexia.    He  also  failed  two  grades while  in \nelementary school.  There is no evidence showing that the Claimant has  any transferable skills.  \nHis ability to obtain employment earning wages at the level that earned at UTC has been reduced \nsignificantly by his left shoulder injury.  Although the Claimant has done several searches for jobs \nonline, he  has  not  been  called  for  an  interview.    The  Claimant  has  applied  for  Social  Security \ndisability.  He has problems getting in certain positions due to his shoulder injury to perform the \ntype jobs he previously worked as a welder.  The Claimant can perform daily activities of living \n\nBRIGGS– H302750 \n35 \n \nand is able to operate a vehicle.  He also does his own yard work using a zero-turn lawn mower.  \nThe  Claimant  sustained  a  5%  permanent  impairment  to  the  left  shoulder because  of his \ncompensable injury.  As a result, the Claimant has been found to be limited in his right shoulder.  \nThese deficits include limited to range of motion and impairment for limited abduction/adduction.     \n Based on the Claimant’s advanced age, limited education, prior work experience, and other \nfactors reasonably expected to affect his future earning capacity, I find that the Claimant proved \nhis entitlement to wage-loss disability in the amount of 22% over and above his 5% impairment \nrating due to his compensable left bicep injury of March 16, 2023.          \n F.  Attorney’s Fee \n The parties stipulated that the Respondents have controverted this claim in its entirety.  As \nsuch, the Claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity benefits \nawarded herein pursuant to Ark. Code Ann. §11-9-715 (Repl. 2012). \n                          AWARD \n Respondents are directed to pay benefits in accordance with the findings of fact set forth \nabove.  All accrued sums shall be paid in lump sum without discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809(Repl 2002).  See Couch \nv.  First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995).  Pursuant to Ark. Code \nAnn. §11-9-715 (Repl. 2012), the Claimant’s attorney is entitled to a 25% attorney’s fee on the \nindemnity benefits awarded herein.   \n IT IS SO ORDERED. \n                                                                      \n                                      ______________________ \n                         CHANDRA L. BLACK \n                                Administrative Law Judge \n\nBRIGGS– H302750 \n36","textLength":73849,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.:H302750 KEVIN BRIGGS, EMPLOYEE CLAIMANT UTC RAILCAR REPAIR SERVICES, LLC, EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE COMPANY/ CONSTITUTION STATE SERVICES, LLC, CARRIER/TPA RESPONDENT OPINION FILED AUGUST 5, 2025 Hearing held before ADMINISTRATIVE LAW JUDGE ...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["shoulder","back","neck","rotator cuff","strain","knee","cervical","wrist"],"fetchedAt":"2026-05-19T22:37:01.930Z"},{"id":"alj-H208211-2025-07-31","awccNumber":"H208211","decisionDate":"2025-07-31","decisionYear":2025,"opinionType":"alj","claimantName":"Tammie Anderson","employerName":"U S A Truck Inc","title":"ANDERSON VS. U S A TRUCK INC. AWCC# H208211 July 31, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ANDERSON_TAMMIE_H208211_20250731.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ANDERSON_TAMMIE_H208211_20250731.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H208211 \n \nTAMMIE C. ANDERSON, EMPLOYEE   CLAIMANT \n \nU S A TRUCK INC., EMPLOYER RESPONDENT \n \nBROADSPIRE SERVICES INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED JULY 31, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents are represented by R. SCOTT ZUERKER, Attorney, Fort Smith Arkansas \n \nOPINION/ORDER \n \n On  October 25, 2024, claimant filed Form AR-C, alleging a compensable injury on October \n27, 2022.   Claimant was not represented by an attorney when the AR-C was filed, and is still pro se.   \nOn May 7, 2025, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time.   A hearing on respondent’s Motion to Dismiss was scheduled for July 21, \n2025.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice was returned unclaimed on May  27,  2025. Claimant  did  not \nrespond to respondent’s motion and did not appear in person at the hearing on July 21, 2025.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \n\nAnderson-H208211 \n \n2 \n \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2037,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208211 TAMMIE C. ANDERSON, EMPLOYEE CLAIMANT U S A TRUCK INC., EMPLOYER RESPONDENT BROADSPIRE SERVICES INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED JULY 31, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington Cou...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:39:13.633Z"},{"id":"alj-H402211-2025-07-31","awccNumber":"H402211","decisionDate":"2025-07-31","decisionYear":2025,"opinionType":"alj","claimantName":"Dempsey Jeremiah","employerName":"W & W Automotive LLC","title":"JEREMIAH VS. W & W AUTOMOTIVE LLC AWCC# H402211 July 31, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JEREMIAH_DEMPSEY_H402211_20250731.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JEREMIAH_DEMPSEY_H402211_20250731.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H402211 \n \nDEMPSEY N. JEREMIAH, EMPLOYEE   CLAIMANT \n \nW & W AUTOMOTIVE LLC, EMPLOYER RESPONDENT \n \nAUTO-OWNERS INSURANCE COMPANY/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED JULY 31, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents are represented by RANDY P. MURPHY, Attorney, Little Rock Arkansas \n \nOPINION/ORDER \n \n On   April  1,  2024,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on March  1, \n2024.   Claimant  was  represented  at  the  time  by  attorney  Mark  A.  Peoples,  who  filed  a Motion  to \nWithdraw on April 15, 2024, and was allowed to withdraw on May 3, 2024.   \nOn April 24, 2025, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time.   A hearing on respondent’s Motion to Dismiss was scheduled for July 21, \n2025.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice was returned unclaimed on June 6, 2025.    Claimant did not \nrespond to respondent’s motion and did not appear in person at the hearing on July 21, 2025.  \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \n\nJeremiah-H402211 \n \n2 \n \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2139,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402211 DEMPSEY N. JEREMIAH, EMPLOYEE CLAIMANT W & W AUTOMOTIVE LLC, EMPLOYER RESPONDENT AUTO-OWNERS INSURANCE COMPANY/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED JULY 31, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Seba...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:39:15.788Z"},{"id":"alj-H407792-2025-07-31","awccNumber":"H407792","decisionDate":"2025-07-31","decisionYear":2025,"opinionType":"alj","claimantName":"Christina Pruitt","employerName":"Rite Of Passage, Inc","title":"PRUITT VS. RITE OF PASSAGE, INC. AWCC# H407792 July 31, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Pruitt_Christina_H407792_20250731.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Pruitt_Christina_H407792_20250731.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H407792 \n \n \nCHRISTINA D. PRUITT, EMPLOYEE CLAIMANT \n \nRITE OF PASSAGE, INC., \n EMPLOYER RESPONDENT \n \nGREAT AMERICAN ALLIANCE INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JULY 31, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on July  31,  2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Jason  M. Ryburn,  Ryburn  Law  Firm, Attorneys \nat Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on July 31, 2025, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   Admitted  into \nevidence was Commission Exhibit 1 (see Ark. Code Ann. § 11-9-705(a)(1) (Repl. \n2012)(Commission  must  “conduct  the  hearing  .  .  .  in  a  manner  which  best \nascertains  the  rights  of  the  parties”), forms,  pleadings,  and  correspondence \nrelated to this claim, consisting of 11 pages. \n\nPRUITT – H407792 \n \n2 \n \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness that was  filed on  December  12, \n2024,  Claimant  purportedly  suffered an  injury at  work  on November  19,  2024, \nwhen  a  co-worker  shared  a  piece  of  candy  that  contained  THC  and  Ecstasy.  \nAccording to the Form AR-2 that was filed on December 13, 2024, Respondents \ncontroverted the matter in its entirety. \n On December  2,  2024,  Claimant  filed  a  Form  AR-C.    Therein, Claimant \nrequested the full range of initial benefits in connection with her alleged poisoning \ninjury.  Respondents’ counsel entered his appearance on December 20, 2024. \n The record reflects that nothing further took place on the claim until June 2, \n2025.  On that date, Respondents filed the instant motion, asking for dismissal of \nthe claim because “[n]o efforts to prosecute the claim have been made.”  The file \nwas assigned to me on that same date; and also on June 2, 2025, my office wrote \nClaimant, asking for a response to the motion within 20 days.  The letter was sent \nby first class and certified mail to the Bryant, Arkansas address\n1\n for Claimant that \nwas listed in the file and on her Form AR-C.  The certified letter was returned to \nthe  Commission,  unclaimed, on July  25,  2025; but the  first-class  letter  was  not \nreturned.  Regardless, no response to the motion was forthcoming from her.  On \n \n \n1\nThe very recently    returned    certified    letter    bears    the    notations \n“UNDELIVERABLE AS ADDRESSED – UNABLE TO FORWARD” and “NOTIFY \nSENDER OF NEW ADDRESS . . . 1501 CHRIS DR BENTON AR  72015-3224.”  \nWhen  this  came  to  the  attention  of  my  office,  Claimant  was  contacted  by \ntelephone.  She confirmed the new address and that, while she had received the \nhearing notice, but did not plan on attending the hearing. \n\nPRUITT – H407792 \n \n3 \n \nJune  24,  2025,  a  hearing  on  the  Motion  to  Dismiss  was  scheduled  for  July 31, \n2025, at 12:00 p.m. at the Commission in Little Rock.  The Notice of Hearing was \nsent to Claimant by certified and first-class mail to the same address as before.  In \nthis  instance,  the United  States  Postal  Service  could  not  confirm  whether  the \ncertified mailing had been claimed.  But once again, the first-class mailing was not \nreturned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel  and argued  for  dismissal under AWCC  R.  099.13 and  Ark.  Code  Ann. § \n11-9-702(a)(4) (Repl. 2012). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under AWCC R. 099.13. \n\nPRUITT – H407792 \n \n4 \n \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin pursuit of it (including appearing at the July 31, 2025, hearing to argue against \nits dismissal) since the filing of her Form AR-C on December 2, 2024.  Thus, the \n\nPRUITT – H407792 \n \n5 \n \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, the applicability of § 11-9-702(a)(4) is moot and will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \nthe  foregoing,  I agree  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n2\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7278,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H407792 CHRISTINA D. PRUITT, EMPLOYEE CLAIMANT RITE OF PASSAGE, INC., EMPLOYER RESPONDENT GREAT AMERICAN ALLIANCE INS. CO., CARRIER RESPONDENT OPINION FILED JULY 31, 2025 Hearing before Administrative Law Judge O. Milton Fine II on July 31, 2025, in Little Ro...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:39:17.854Z"},{"id":"alj-H006236-2025-07-31","awccNumber":"H006236","decisionDate":"2025-07-31","decisionYear":2025,"opinionType":"alj","claimantName":"Jimmy Stewart","employerName":"Simmons Prepared Foods Inc","title":"STEWART VS. SIMMONS PREPARED FOODS INC. AWCC# H006236 July 31, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/STEWART_JIMMY_H006236_20250731.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STEWART_JIMMY_H006236_20250731.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H006236 \n \nJIMMY STEWART, EMPLOYEE   CLAIMANT \n \nSIMMONS PREPARED FOODS INC., EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED JULY 31, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in , Washington County, \nArkansas. \n \nClaimant is represented by JEREMY D. WANN, Attorney, Fort Smith, Arkansas although not \nappearing. \n \nRespondents are represented by R. SCOTT ZUERKER, Attorney, Fort Smith Arkansas \n \nOPINION/ORDER \n \n On  September 10, 2020, claimant filed Form AR-C, alleging a compensable injury on August \n5,  2020.   Claimant    was  represented  at  the  time  by Attorney  Jeremy  D.  Wann,  who  remains  his \nattorney of record.     \nOn April 7, 2025, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time.   A hearing on respondent’s Motion to Dismiss was scheduled for July 21, \n2025.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice was returned unclaimed on July  2,  2025.    Claimant  did  not \nrespond  to respondent’s  motion  and  did  not  appear  in  person  at  the  hearing  on July  21, \n2025.  Claimant’s counsel was notified by email of the hearing date and time after acknowledging that \nhe was available for this hearing, but did not appear.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nStewart-H006236 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2293,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H006236 JIMMY STEWART, EMPLOYEE CLAIMANT SIMMONS PREPARED FOODS INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED JULY 31, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in , Wa...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:39:19.918Z"},{"id":"alj-H403963-2025-07-30","awccNumber":"H403963","decisionDate":"2025-07-30","decisionYear":2025,"opinionType":"alj","claimantName":"Lopez Foster","employerName":"Miller Spectacular Shows LLC","title":"FOSTER LOPEZ VS. MILLER SPECTACULAR SHOWS LLC AWCC# H403963 July 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FOSTER_LOPEZ_DAVID_H403963_20250730.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FOSTER_LOPEZ_DAVID_H403963_20250730.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H403963 \nDAVID K. FOSTER LOPEZ, EMPLOYEE    CLAIMANT \n \nMILLER SPECTACULAR SHOWS LLC, \nEMPLOYER          RESPONDENT \n \nSTAR INSURANCE COMPANY, \nINSURANCECARRIER/TPA       RESPONDENT \n \nOPINION AND ORDER FILED JULY 30, 2025 \nThe Hearing before Administrative Law Judge James D. Kennedy in Batesville, \nArkansas, was held on July 23, 2025. \nClaimant was pro-se and failed to appear. \nRespondents were represented by Anna Catherine Cargile, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above  styled  matter  on the 23\nrd\n day  of July,  2025, in \nBatesville, Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute pursuant \nto Arkansas Code Ann. 11-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nCommission. The  claimant  was  pro  se  and failed  to  appear on  his own  behalf. The \nrespondents were represented by Anna Catherine Cargile of Little Rock, Arkansas.  \n A Form C was filed by the Claimant on June, 20\nth\n, 2024, alleging injuries to his hip, \nhand and heart on June 15, 2024. A second Form C was filed on or about September 5, \n2024,  alleging  the  same injuries. A third Form C  was  filed  on  October  8,  2024,  again \nalleging the same injuries.  \nThe  Claimant  was  originally  represented  by  Mark  Peoples, who was  allowed  to \nwithdraw  by  an  Order  of  the  Full  Commission, dated  December 9,  2024. A  Motion  to \n\nDAVID K. FOSTER-LOPEZ – H403963 \n2 \n \nDismiss  For  Failure  to  Prosecute  was  filed  on April  10,  2025, alleging  that  the  matter \nshould be dismissed due to a failure to prosecute pursuant to Rule 099.13 of the Arkansas \nWorkers’ Compensation Commission and also Arkansas Code Ann. 11-9-702 which \nprovides  for  dismissal  of  a  claim  if  no  bona  fide  request  for  a  hearing  has  been  made \nwithin six (6) months of the filing of the claim.  The Claimant failed to file a response to \nthe  Motion  to  Dismiss so an appropriate  notice  of  a  Motion  to  Dismiss  hearing  was \nprovided to the Claimant setting the hearing for July 23, 2025, at 11:30 a.m., in Batesville, \nArkansas.   \n A  hearing  was  held  on July 23, 2025, and  the  claimant failed  to  appear.    The \nRespondents  were  represented  by Anna  Catherine  Cargile,  who  requested  that  the \nmatter be dismissed pursuant to Rule 099.13 of the Arkansas Workers’ Compensation \nCommission and Arkansas Code Ann. 11-9-702. \n   \nORDER \n \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion to Dismiss without prejudice pursuant to Rule 099.13 of the Arkansas Workers’ \nCompensation Commission and Arkansas Code Ann. 11-9-702.   \nIT IS SO ORDERED. \n                 \n \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":2975,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H403963 DAVID K. FOSTER LOPEZ, EMPLOYEE CLAIMANT MILLER SPECTACULAR SHOWS LLC, EMPLOYER RESPONDENT STAR INSURANCE COMPANY, INSURANCECARRIER/TPA RESPONDENT OPINION AND ORDER FILED JULY 30, 2025 The Hearing before Administrative Law Judge James D. Kennedy in ...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["hip"],"fetchedAt":"2026-05-19T22:39:03.263Z"},{"id":"alj-H407417-2025-07-30","awccNumber":"H407417","decisionDate":"2025-07-30","decisionYear":2025,"opinionType":"alj","claimantName":"Haley Klingsmith","employerName":"Care Manor Nursing & Rehab","title":"KLINGSMITH VS. CARE MANOR NURSING & REHAB AWCC# H407417 July 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KLINGSMITH_HALEY_H407417_20250730.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KLINGSMITH_HALEY_H407417_20250730.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H407417 \nHALEY KLINGSMITH, EMPLOYEE      CLAIMANT \nCARE MANOR NURSING & REHAB, \nEMPLOYER              RESPONDENT \n \nASIT/CCMSI, CARRIER/TPA           RESPONDENT \n \nOPINION AND ORDER FILED JULY 30, 2025 \n \nThe Hearing before Administrative Law Judge James D. Kennedy in Mountain \nHome, Arkansas, was held on July 16, 2025. \n \nClaimant was pro-se and failed to appear. \n \nRespondents were represented by Jarrod Parrish, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above  styled  matter  on the 16\nth\n day  of July,  2025, in \nMountain Home, Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute \npursuant  to  Arkansas  Code  Ann.  11-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Commission. The claimant was pro se and failed to appear on her own \nbehalf. The respondents were represented by Jarrod Parrish of Little Rock, Arkansas.  \n A Form-C was filed by the Claimant on October 15, 2024, which provided that the \nclaimant  had  injured  her  left  knee,  leg,  and  hip. A  First  Report  of  Injury  was  filed  on \nNovember  25,  2024, which provided  that  the  claimant  had  sprained  her  left  knee.  A \nmedical report from the Bone and Joint Clinic, dated November 27, 2024, stated that the \nclaimant was being followed for a strain of her left knee. The report further provided that \nthe claimant did not show for physical therapy and when the clinic attempted to contact \nher, she did not return their calls.  \n\nHaley Klingsmith – H407417 \n2 \n \nThe  Claimant  was  originally  represented  by  Mark  Peoples, who was  allowed  to \nwithdraw by an Order of the Full Commission, dated December 16, 2024.  A Motion to \nDismiss  For  Failure  to  Prosecute  was  filed  on  May  13,  2025, alleging  that  the  matter \nshould be dismissed due to a failure to prosecute pursuant to Rule 099.13 of the Arkansas \nWorkers’ Compensation Commission and also Arkansas Code Ann. 11-9-702 which \nprovides  for  dismissal  of  a  claim  if  no  bona fide  request  for  a  hearing  has  been  made \nwithin six (6) months of the filing of the claim. The Claimant failed to file a response to the \nMotion to Dismiss so an appropriate notice of a Motion to Dismiss hearing was provided \nto the Claimant setting the hearing for July 16, 2025, at 11:00 a.m., in Mountain Home \nArkansas.   \n A  hearing  was  held  on July  16, 2025, and  the  claimant failed  to  appear.  The \nRespondents  were  represented  by Jarrod  Parrish,  who  requested  that  the matter  be \ndismissed pursuant to Rule 099.13 of the Arkansas Workers’ Compensation Commission \nand Arkansas Code Ann. 11-9-702. \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion to Dismiss without prejudice pursuant to Rule 099.13 of the Arkansas Workers’ \nCompensation Commission and Arkansas Code Ann. 11-9-702.   \nIT IS SO ORDERED. \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":3173,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H407417 HALEY KLINGSMITH, EMPLOYEE CLAIMANT CARE MANOR NURSING & REHAB, EMPLOYER RESPONDENT ASIT/CCMSI, CARRIER/TPA RESPONDENT OPINION AND ORDER FILED JULY 30, 2025 The Hearing before Administrative Law Judge James D. Kennedy in Mountain Home, Arkansas, was...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["knee","hip","strain"],"fetchedAt":"2026-05-19T22:39:05.342Z"},{"id":"alj-H402408-2025-07-30","awccNumber":"H402408","decisionDate":"2025-07-30","decisionYear":2025,"opinionType":"alj","claimantName":"Debra Piatt","employerName":"Edgewood Health & Rehab","title":"PIATT VS. EDGEWOOD HEALTH & REHAB AWCC# H402408 July 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PIATT_DEBRA_H402408_20250730.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PIATT_DEBRA_H402408_20250730.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H402408 \n \nDEBRA PIATT, Employee CLAIMANT \n \nEDGEWOOD HEALTH & REHAB, Employer RESPONDENT \n \nCCMSI, Carrier \n \n \nNUNC PRO TUNC ORDER FILED JULY 30, 2025 \n \n This  Administrative  Law  Judge  finds  that clerical  errors exist  in  the  Opinion  and  Order \nfiled July 9, 2025.   \n The first error is on Page 8, Paragraph 2, Sentence 4, an outdated citation appears, and the \nOpinion should reflect the current citation. Therefore, said Opinion is hereby modified to reflect \nthe proper citation as follows: \nArk.  Code  Ann.  §11-9-704(c)(ii)(B)  states  that  any  determination \nof   the   existence   or   extent   of   physical   impairment   shall   be \nsupported   by   objective   and   measurable   physical   or   mental \nfindings. \n \n The second error is on Page 8, Paragraph 2, Sentence 5, an outdated citation appears, and \nthe  Opinion  should  reflect  the  current  citation.  Therefore,  said  Opinion  is  hereby  modified  to \nreflect the proper citation as follows: \nIn  addition,  permanent  benefits  shall  be  awarded  only  upon  a \ndetermination  that  the  compensable  injury  was  the  major  cause  of \ndisability or the impairment, Ark. Code Ann. §11-9-102(4)(F)(ii). \n \nThe third error is on Page 8, Paragraph 3, Sentence 4, the word subjective appears and the \nOpinion should reflect the word objective. Therefore, said Opinion is hereby modified to reflect \nthe correct word as follows: \n\nPiatt – H402408 \n \nThe  impairment  rating  of  8%  to  the  body  as  a  whole  is  supported \nby objective measurable findings, specifically the claimant’s right \nshoulder MRI performed on August 30, 2023, and the claimant’s \noperative report from her June 21, 2024, right shoulder surgery.  \n \n The  Commission  is  authorized  to  correct  clerical  errors  and  this  is  a  proper  case  to \nexercise that authority.  Ark. Code Ann. §11-9-713.  The Opinion filed on July 9, 2025, by this \nAdministrative  Law  Judge  is  hereby  modified  only  to  include  the errors  on  Page  8. In  all  other \nrespects,  the  Opinion  filed July  9,  2025, shall  remain  the  same  and  shall  not  be  otherwise \naffected. \n IT IS SO ORDERED. \n \n                                     _______________ \n                ERIC PAUL WELLS \n                                        Administrative Law Judge","textLength":2381,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H402408 DEBRA PIATT, Employee CLAIMANT EDGEWOOD HEALTH & REHAB, Employer RESPONDENT CCMSI, Carrier NUNC PRO TUNC ORDER FILED JULY 30, 2025 This Administrative Law Judge finds that clerical errors exist in the Opinion and Order filed July 9, 2025. The first er...","outcome":"modified","outcomeKeywords":["modified:4","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:39:07.402Z"},{"id":"alj-H404897-2025-07-30","awccNumber":"H404897","decisionDate":"2025-07-30","decisionYear":2025,"opinionType":"alj","claimantName":"Bessie Poindexter","employerName":"Lowes Home Centers, LLC","title":"POINDEXTER VS. LOWES HOME CENTERS, LLC AWCC# H404897 July 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/POINDEXTER_BESSIE_H404897_20250730.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"POINDEXTER_BESSIE_H404897_20250730.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404897 \n \nBESSIE POINDEXTER, EMPLOYEE                                                            CLAIMANT \n \nLOWES HOME CENTERS, LLC, \nEMPLOYER                                                               RESPONDENT \n \nSEDGEWICK CLAIM MANAGEMENT \nSERVICES, INC., INS. CARRIER/TPA          RESPONDENT \n \n \nOPINION FILED JULY 30, 2025 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, on July 15, 2025. \n \nClaimant is pro se and appeared on her own behalf. \n \nRespondents are represented by their attorney, Randy P. Murphy, of Little Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above  styled  matter  on July 15,  2025, in Little  Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas   Code  Ann.   11-9-702 and   Rule 099.13  of  the  Workers’  Compensation \nCommission, with said Motion being filed on May 14, 2025. A First Report of Injury had \nbeen filed on July 31, 2024, and it provided that the Claimant had been watering plants \nand lost her balance, got her feet tangled up, fell on her backside, and that the Claimant \ndid not report the claim until six (6) days later. The injury occurred on July 2, 2024. The \nAR-2 Form provided that the claim was a medical only claim. \n A Motion to Dismiss the Claim was filed on or about on May 14, 2025, alleging that \nno hearing had been requested and that pursuant to A.C.A. 11-9-702 and Rule 13 of the \n\nBessie Poindexter – H404897 \n2 \n \nArkansas Workers’ Compensation Commission, the claim should be dismissed for want \nof prosecution. The Claimant had never taken any action to pursue benefits or prosecute  \nher claim and that it was now over six (6) months without any action being taken on this \nmatter. The Claimant failed to file a response to the Motion to Dismiss. Appropriate notice \nwas then provided to the claimant, and she appeared on her own behalf at the time of the \nhearing where she stated that she wished to pursue her claim involving her right ankle \nand requesting her claim not be dismissed. She stated that she had talked to the Legal \nAdvisor  Division  of  the  Commission,  but  apparently,  an  issue  involving  communication \nhad  developed.  She  had  responded  to  the  questionnaire  and  there  had  been  some \ndiscussion  involving  possible  mediation. Randy  Murphy appeared  on  behalf  of  the \nRespondents and asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for \nthe Respondent, as well as statements of the Claimant, the Claimant was instructed to \nmaintain a method in which the parties and the Commission could contact her and to \nagain contact the Legal Advisor Division for guidance, and that it was her responsibility \nto take these steps.  It is found that this matter and the Motion to Dismiss should be \ntaken under advisement at this time, to allow the Claimant to take appropriate action in \nregard to her claim. \n \n \n \n \n\nBessie Poindexter – H404897 \n3 \n \nORDER \n Pursuant to the above statement of the case, there is no alternative but to deny \nthe Motion to Dismiss at this time and to take the matter under advisement to allow the \nClaimant to take affirmative steps in regard to the pursuit of her claim. \nIT IS SO ORDERED. \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3596,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404897 BESSIE POINDEXTER, EMPLOYEE CLAIMANT LOWES HOME CENTERS, LLC, EMPLOYER RESPONDENT SEDGEWICK CLAIM MANAGEMENT SERVICES, INC., INS. CARRIER/TPA RESPONDENT OPINION FILED JULY 30, 2025 Hearing before Administrative Law Judge James D. Kennedy in Little R...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:39:09.471Z"},{"id":"alj-H404248-2025-07-30","awccNumber":"H404248","decisionDate":"2025-07-30","decisionYear":2025,"opinionType":"alj","claimantName":"Shundreka Richard","employerName":"Kmj Management, LLC","title":"RICHARD VS. KMJ MANAGEMENT, LLC AWCC# H404248 July 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RICHARD_SHUNDREKA_H404248_20250730.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RICHARD_SHUNDREKA_H404248_20250730.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404248 \n \nSHUNDREKA RICHARD, Employee CLAIMANT \n \nKMJ MANAGEMENT, LLC, Employer RESPONDENT \n \nACCIDENT FUND INS., Carrier RESPONDENT \n \n \n OPINION FILED JULY 30, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by JAMES A. ARNOLD II, Attorney at Law, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n \n On May  1,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.      A  pre-hearing  conference  was  conducted  on March  17,  2025,  and  a  Pre-hearing \nOrder  was  filed  on March  18,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on February \n14, 2024. \n 3. The claimant sustained a compensable injury to her low back and left shoulder on or \nabout February 14, 2024. \n\nRichard – H404248 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $420.00  for  temporary  total  disability  benefits  and  $315.00  for  permanent  partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  her  cervical  spine  on  or  about \nFebruary 14, 2024. \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for  her  cervical  spine  injury  in  the \nform of surgery as recommended by Dr. Blankenship. \n 3. Whether Claimant is entitled to additional medical treatment for her compensable low \nback injury in the form of surgery as recommended by Dr. Blankenship. \n 4.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  March  26, \n2024, through September 22, 2024. \n 5. Whether Claimant’s attorney is entitled to an attorney’s fee. \n The claimant's contentions are as follows: \n“a.  The  Claimant  contends  that  she  is  entitled  to  temporary  total \ndisability  benefits  from  March  26,  2024  through  September  22, \n2024  and  temporary  disability  benefits  in  regard  to  the  surgeries \nthat her authorized treating physician is recommending. \n \nb.  The  Claimant  contends  that  the  surgeries  recommended  by  Dr. \nBlankenship    constitutes    reasonable    and    necessary    medical \ntreatment  and  therefore  the  respondents  should  be  held  liable  for \nthe same. \n \nc.  The  Claimant  contends  that  her  attorney  is  entitled  to  an \nattorney’s fee  regarding temporary total disability benefits from \nMarch  26,  2024  through  September  22,  2024  and  in  regard  to \ntemporary disability benefits associated with the surgeries that her \nauthorized  physician  is  recommending  and  that  the  respondents \ndeny liability for.” \n \n\nRichard – H404248 \n \n-3- \n The respondents’ contentions are as follows: \n“Respondents  contend  that  they  have  paid  and  continue  to  pay  all \nappropriate benefits to which the Claimant is entitled.” \n \nI  note  that  a  clerical  was  made  in  my  Prehearing  Order  issued  March  18,  2025,  which \nserved as a foundational document for this Opinion. That error occurs in Stipulation No. 3, which \nreads, “The claimant sustained a compensable injury to her low back and left shoulder on or \nabout February 14, 2025.” That has been corrected to reflect a date of February 14, 2024. That \nsame error occurs in Issue No. 1, which reads, “Whether Claimant sustained a compensable \ninjury to her cervical spine on or about February 14, 2025.” That now reflects a date of February \n14,  2024.  I  also  note  that  the  proper  date  is  reflected  in  Stipulation No.  2,  which  regards  the \nemployee/employer/carrier relationship that the parties agree existed on  February 14, 2024,  and \nthat  the  date  of  February  14,  2024,  is  recognized  by both  parties throughout  questioning  in  the \ncourse  of  the  hearing  and  documentary  evidence  submitted  by  both  parties.  There  is  no  dispute \nregarding the proper date of the claimant’s allegations of cervical spine injury and compensable \nlumbar spine and left shoulder injuries occurring on February 14, 2024. \n The claimant in this matter is a 34-year-old female who sustained compensable injuries to \nher  low  back  and  left  shoulder  on  or  about  February  14,  2024,  while  employed  by  the \nrespondent.  The  claimant  has  asked  the  Commission  to  determine  whether  she  also  sustained  a \ncompensable cervical spine injury in that same incident. Additionally, the claimant has requested \nmedical  treatment  for  her  cervical  spine  in  the  form  of  surgery  as  recommended  by  Dr.  James \nBlankenship. On direct examination the claimant testified about the incident and her reporting of \nit to the respondent as follows: \nQ Ms. Richard, we are here today in regard to an incident that \noccurred on February 14, 2024, while you were in the employment \n\nRichard – H404248 \n \n-4- \nof  Fianna  Nursing  &  Rehab.  Will  you  tell  us  what  happened  on \nthat day as far as your condition is concerned. \n \nA Yes, sir. I was working four halls. I was working 500, 600, \n100 and 200. 200 is the rehabilitation hall. I was helping a resident \nget  from  his  wheelchair  to  the  bed  and  he  fell  back  into  his \nwheelchair.  When  he  fell  back  into  his  wheelchair,  he  pulled  me \ndown  with  him  and  I  heard  my  back  pop,  so  I  left  him  in  the \nwheelchair until someone else got there to assist me getting him in \nthe bed. \n \nQ Did  you  report  that  incident  to  somebody  in  a  supervisory \ncapacity that day? \n \nA When I left, there was no supervisors. No nurses had made \nit. There was nobody there. \n \nQ So when did you first report it? \n \nA I  spoke  with  Jasmine  that  Friday  before  I  went  to  the \nemergency room. \n \nQ Now, who is Jasmine? \n \nA She was – she is – I think it’s the DON. \n \nQ And that is the Director of Nursing? \n \nA Yes, sir. \n \nQ Now,  you  saw  before  you  went  to  the  emergency  room. \nThe  records  indicate  that  you  went  to  the  emergency  room  on  the \n16\nth\n, which would have been two days later. \n \nA Yes, sir. \n \nOn  cross  examination  the  claimant  was  asked  about  her  direct  examination  testimony  and \ndeposition testimony regarding the February 14, 2024, incident and her reporting of it as follows: \nQ Ms.  Richard,  you  are  describing  an  incident  that  occurred \non February 14\nth\n, correct? \n \nA Yes, sir. \n \n\nRichard – H404248 \n \n-5- \nQ And it is my understanding that when this incident occurred \nwith  the  gentleman  you  were  assisting  from  the  wheelchair  to  the \nbed, that you felt a pop in your lower back? \n \nA Yes, sir. \n \nQ Not in your neck? \n \nA Not in my neck. \n \nQ And when that occurred, you experienced low back pain? \n \nA Yes, sir. I also had pain in my neck and my shoulder. \n \nQ Okay. As a matter of fact, you recall that Ms. Rambo here \ntook your deposition back on August 12, 2024, this last summer? \n \nA Yes, sir. \n \nQ She  asked  you  about  what  your  pain  was  and  she  said, \n“Okay. So you felt your back pop. Was it in your lower back?” \n \n You answered, “My lower back.” \n \n MR. ARNOLD: This is Page 19 \n \nQ [BY MR ARNOLD]: (Continued) “And I started to have \npains  like  in  my  neck,  my  right  neck,  the  right  side  of  my \nshoulder.” \n \nA Uh-huh. \n \nQ And she said, “Okay. Your right shoulder?” \n \n And you said, “Yes.” \n \n Is that your testimony? \n \nA It  is  the  left  side,  but  from  where  I  was  sitting,  it  might \nhave looked – seemed like right to me, but it is my left side. \n \nQ Okay.  She  asked  you  a  little  bit  later  about  this  report  to \nJasmine. \n \nA Uh-huh. \n\nRichard – H404248 \n \n-6- \n \nQ And you said that you told Jasmine that you were, “Having \npain in my neck and my shoulder on my right side.” \n \n So  in  August  you  were  explicit  that  the  pain  you  felt \ninitially was on the right side of your neck and shoulder. \n \nA I never told Jasmine that it was on  my right side. I did tell \nher  that  I  was  having  the  pain,  but  I  never  told  her  it  was  on  my \nright side. \n \nQ Okay. At Page 22 of your deposition taken by Ms. Rambo, \nshe asked, “Did you report that you had injured your shoulder to \nKim or Jasmine?” \n \n You said, “I did. I told her I was having pains in my neck \nand my shoulder on the right side.” \n \nA Again, I was in pain and it’s my left side. And it’s also in \nthe paperwork that it is is the left side. \n \nQ Okay. Let’s talk about that. \n \nA Yes. \n \nQ You  did  not  report  this  incident  to  anyone  at  the  nursing \nhome on February the 14\nth\n. \n \nA That’s true. \n \nQ Okay. You did not report it to anyone at the nursing home \non February the 15\nth\n. \n \nA That is true. \n \nQ You  did  not  report  it  to  anyone  at  the  nursing  home  until \nFebruary   the   16\nth\n after   you   had   been   to   seek   the   folks   in \nOklahoma? \n \nA You mean the hospital? \n \nQ Yes. \n \nA No. I talked to Jasmine before I went to the hospital. \n \n\nRichard – H404248 \n \n-7- \nQ Okay. Is that when you told her that it was your right side? \n \nA No. I didn’t tell her it was either side. I told her that I was \nhaving pain and that I was hurt and I think it was my back and my \nneck. \n \nQ Again, in your deposition you told us it was your right side. \n \nA And  I  understand  that.  And  again,  I  was  in  pain.  And  also \nfrom the way we were sitting, I was trying to see which way it was, \nbut I said right side, but I gestured my left side. \n \n On  February  16,  2024,  the  claimant  was  seen  at  Eastern  Oklahoma Medical  Center \nemergency  department  in  Poteau,  Oklahoma,  by  Dr.  Jeffrey  Johnson. The claimant’s medical \nrecord from that visit in part states: \nCHIEF COMPLAINT \nChief Complaint: LEFT SIDE NECK PAIN \n \nHPI \nPatient  Name:  RICHARD,  SHUNDREKA  M.  is  a  Age:  33  years \nwho presents with left sided neck pain that radiates down into left \narm. no trauma or known injury. she works as a CNA at a nursing \nhome  and  does  heavy  lifting.  no  numbness  or  weakness.  no  fever \nor chills. no n/v. no rash. no uri symptoms. no headache. \n \n*** \nPHYSICAL EXAM \n \n*** \nNeck:  Supple. left crivical  [sic] paraspinous  muscles  are  tender  to \npalp. no midline bony tenderness \n \n*** \nDiagnostic Considerations and Summary of Care: \nPt here with atraumatic neck pain. no red flags. normal exam \nI gave  dose  of  Toradol  here. will  dc  with  rx  for  meloxicam  and \nrobaxin. \nShe  will  call  her  pcp  in  one  week  if  not better.  I  told  her  that  she \nmay need an MRI of neck if not improving. \n \n*** \nNursing Note \n\nRichard – H404248 \n \n-8- \n33  year  old  female  presents  to  ER  from  home  with  primary \ncomplaint   of   left   neck   pain   which   has   been   present   since \nWednesday.  Patient  works  as  a  CNA  at  finna  nursing  home. \nPatient  reports  taking  home  nsaids  with  no  relief  reported.  Patient \nis  alert  and  oriented  times  4  with  clear  and  appropriate  speech. \nGCS is 15. Spontaneous unlabored respirations assessed with even \nchest rise and fall. Patient ambulated to ER 4 with a steady gait and \nwas triaged at bedside. \n \n*** \nPRESCRIPTIONS WRITTEN \nContinue    regular    medicines    unless    specified    below.    New \nmedications by the provide will also be stated below. \nRobaxin  (methocarbamol)  500  Mg.  Tablets,  Dispense:  40  (Forty) \n500 mg. How To Use; Take two (2) tablets by mouth every 6 hours \nas needed for muscle spasm, Refills: None (0). \n \nINSTRUCTIONS \n1. You have been given  a medicine or prescription for medication \ncalled Robaxin (Methocarbamol). \n- This medication is used to relieve muscle spasm. \n \n The  claimant’s  next  chronological  medical  record  in  evidence  is  from  Mercy  Clinic \nOccupational Medicine – Fort Smith dated February 23, 2024. I find no mention of the claimant \nhaving cervical difficulties or complaints in that medical record. That report reflects the claimant \nhaving lower back pain from lifting a resident. The claimant was given a diagnosis of “1. Strain \nof  muscle(s)  and  tendon(s)  of  the  rotator  cuff  of  left  shoulder,  initial  encounter  (S46.012A). 2. \nStrain of muscle, fascia and tendon of lower back, initial encounter (S39.012A)” by APN Tawni \nGlander. The claimant was also placed on restricted work duty at that time.  \n After the claimant’s February 16, 2024, initial visit where she complained of cervical \npain, there are 15 medical reports in evidence beginning with a February 23, 2024, visit to Mercy \nClinic  Occupational  Medicine – Fort  Smith  until  she  again  reports  cervical  difficulties  or \ncomplaints  to  a  medical  provider  on  July  24,  2024.  That  report  is  made  to  Eastern  Oklahoma \nMedical Center. Following is a portion of that medical report: \n\nRichard – H404248 \n \n-9- \nChief Complaint: Chief Complaint: Fall \n \nHistory of Present Illness: \nPatient Name: RICHARD, SHUNDREKA M is a Age: 33 years \nwho presents for evaluation of Chief Complaint: Fall \n \nPt reports walking out front door today and her “legs gave out” pt \nreports hx of bulging disc of L5, S1. Pt reports hitting her left side \nwhen she fell. \n \nTime of Symptom Onset: 6 hour(s) ago \n \n*** \nRISK: \nDrugs: Rx Medications considered but not prescribed OTC drugs \nTreatment:  Diagnosis  or  treatment  significant  risks  discussed. \nDiagnostic test considered but not performed \n \nPatient  was  seen  and  evaluated  by  myself.  History  and  physical \nexam is consistent with low back and cervical strain. There are no \nsigns or symptoms concerning for spinal cord compression, spinal, \ninfection, or any other neurosurgical emergency. I did consider CT \nor  x-ray  imaging,  however  I  do  not  believe  these  are  necessary  at \nthis  time.  The  patient  was  given  IM  Toradol  and  Norflex  in  the \nemergency  department.  I  do  believe  she  is  safe  for  outpatient \nfollow-up. I did consider prescription for narcotic pain medication, \nhowever  I  do  not  believe  this  is  necessary  at  this  time.  She  has  a \nfollow-up  appointment  tomorrow  with  pain  management  for  her \nchronic  pain.  I  recommend  over-the-counter  Tylenol  and  topical \nanalgesics.   She   was   given   return   precautions   and   follow-up \ninstructions. \n \nProblem List \nAcute COVID-19 \nLow back strain \nCervical strain \n \n The claimant begins to  report cervical pain to other medical providers  after her July 24, \n2024, Eastern Oklahoma Medical Center visit where she reported a fall and had a physical exam \nconsistent  with  cervical  strain.  The  claimant  was  seen  at  the  Mercy  Clinic  Department  of  Pain \nMedicine for a follow-up after she received a lumbar steroid injection. That report, dated July 25, \n\nRichard – H404248 \n \n-10- \n2024, in part states, “she does have shoulder and neck pain.” On July 30, 2024, the claimant was \nseen at Mercy Clinic Primary Care in Poteau and reports cervical and low back pain. That report \nalso states: \nASSESSMENT AND PLAN: \n1. Lumbar radiculopathy \nChronic issue, patient is scheduled to see neurosurgery on October \n17\nth\n. Prescribing tramadol today to help with stability. \n \n2. Chronic anemia \nChronic issue, currently on Ferralet. H&H and ferritin remains low \nCBC/ferritin now. Hematology appointment on 8/19 \n- CBC WITH DIFFERENTIAL; Future \n- FERRITIN; Future \n \n3. B12 deficiency \nChronic issue, stable at this time with B12 replacement. Continue 1 \ncc IM monthly. \n \n The  claimant  is  seen  by  Dr.  James  Blankenship  at  the  Neurosurgery  Spine  and  Pain \nManagement  Center  on  September  23,  2024.  That  medical  report  primarily  deals  with  the \nclaimant’s lumbar spine but does address her cervical spine in part as follows: \nHPI: \n \n*** \nThe  patient  also  had  and  is  still  having  neck  and  upper  left  arm \npain.  This has not  gotten  any  better  since  the  accident  but  has \nreally not been worked up. \n \n*** \nRecommendations: \n \n*** \nConcerning  her  neck,  we  are  going  to  get  an  MRI,  and  we  will \nreview  this.  Obviously,  if  it  shows  cord  compression,  we  will  get \nher back in here. If not, we will continue on with this conservative \ntreatment plan. The patient left with no further questions. \n \n\nRichard – H404248 \n \n-11- \n On  October  23,  2024,  the  claimant  underwent  an  MRI  of  the  cervical  spine  at  MANA \nMRI. Dr. Blankenship authored the diagnostic report. Following is a portion of that report: \nC2-3: Midline disc bulge is noted with no cord, canal or foraminal \ncompression. \nC3-4: No disc herniation, neural foraminal narrowing, or central or \nlateral recess stenosis is noted. \nC4-5:   Midline   disc   protrusion   with   the   AP   canal   diameter \nmeasuring in the axial plane 8 mm. \nC5-6: Midline disc protrusion with gross annular fissuring is noted. \nIn the midline where the disc has protruded, the AP canal diameter \nmeasures 7 mm. \nC6-7:  No  disc  herniations,  neural  foraminal  narrowing,  or  central \ncanal stenosis is noted. \nC7-T1: No disc herniations, neural foraminal narrowing, or central \ncanal stenosis is noted. \n \nIMPRESSION:   Midline   disc   protrusions   at   C4-5   and   C5-6 \nresulting  in  kyphotic  angulation  of  the  spine  with  the  spinal  canal \nAP diameter measuring 8 mm at C4-5 and 7 mm at C5-6. \n \n On October 31, 2024, Dr. Blankenship issued a note for the claimant’s chart regarding \nher cervical spine as follows: \nNOTE FOR CHART: I have reviewed the patient’s MRI in its \nentirety. The main purpose of this was to evaluate whether she has \nany cord compression. She did have some myelopathic findings on \nexamination.  The  patient  has  a  significantly  flat  neck  with  loss  of \nnormal  cervical  lordosis.  She  does  have  posterior  disc  bulging  at \nC5-6 and C6-7. Her midline disc protrusion at C4-5 does abut the \nanterior  horn  of  the  spinal  cord,  but  there  is  still  CSF  signal \ncircumferentially.  At  C5-6  she  has  the  same  thing  with  less  cord \nimpingement.  I  certainly  do  not  think  this  is  bad  enough  that  we \nneed to talk about surgical intervention at present. We need to stick \nwith  the  conservative  game  plan,  and  then  we  will  see  how  she  is \ndoing when she come back in to see us. \n \n On  November  21,  2024,  the  claimant  is  again  seen  by  Dr.  Blankenship.  Following  is  a \nportion of that medical record regarding the claimant’s cervical spine: \nChief Complaint: \nChief Complaint: LEFT SIDE LOW BACK PAIN; NECK PAIN. \n\nRichard – H404248 \n \n-12- \n \n*** \nDiagnosis: \nM54.2 Cervicalgia \nM50.20  Other  cervical  disc  displacement,  unspecified  cervical \nregion. \n \nImpression: \nThe  patient  returns  today  increasing  in  pain.  She  did  not  get  any \nrelief  with  her  SI  joint  injection.  She  is  still  complaining  of  neck \npain, left subscapular and left hand pain. The patient had posterior \ndisc protrusions at C4-5 and C5-6 that abut the anterior horn of the \nspinal  cord.  Her  degree  of  stenosis  is  borderline  with  CSF  signal \nnoted   posteriorly.   Certainly   her   disc   protrusion   and   kyphotic \nangulation  are  the  etiology  of  her  neck  pain  and  headaches.  I  do \nnot  think  there  is  enough  crowding  on  the  spinal  cord,  I  told  the \npatient,  that  she  needs  to  have  surgery,  although  her  increasing \nbalance  problems  are  a  little  bit  of  a  concern.  At  well  over  6 \nmonths   out   from   her   injury   and   having   failed   conservative \ntreatment,  a  discussion  about  surgical  intervention  on  her  neck  is \nnot unreasonable.  \n \n*** \nRecommendations: \nFrom   the   standpoint   of   pain,   I   have   offered   her   surgical \nintervention  on  both.  I  have  talked  to  her  about  a  C4-5,  C5-6 \nanterior    cervical    arthrodesis    and    fusion    with    spinal    cord \ndecompression and correction of alignment.  \n \n*** \nIn  summary,  the  rationale  for  offering  her  an  arthrodesis  in  her \nneck is due to her segmental spinal stenosis as well as her kyphotic \nangulation.  \n \n On  December  9,  2024,  the  claimant  was  seen by  Dr.  Wayne  Bruffett.  Following  is  a \nportion of that medical record regarding the claimant’s cervical spine: \nChief Complaint: \nNeck pain and low back pain \n \nHPI: Shundreka Richard is a 34 y.o. year old female who got hurt \nat  work  on  February  14\nth\n.  She  works  as  a  CNA.  She  was  lifting  a \nresident who became dead weight and the patient experienced pain \nin her neck and low back. She has had an MRI scan of her cervical \n\nRichard – H404248 \n \n-13- \nand  lumbar  spine  and  she  reports  that  she  has  had  extensive \ntreatments  with  medications  physical  therapy  and  spinal  cord \ninjections. Surgery has been recommended in both the cervical and \nlumbar spine. She is here for an IME. \n \n*** \nDiagnosis   cervical   degenerative   disc   disease   with   cervical \nstrain \nLumbar degenerative disc disease with lumbar strain \nDisc   herniation   L5-S1   on   the   left   without   specific   S1 \nradiculopathy \n \nAssessment: \nShundreka  Richard  is  a  34  y.o.  year  old  female  with  3  young \nchildren  who  had  a  work  related  injury  resulting  in  neck  and  low \nback pain. She is here for a 2\nnd\n opinion/IME. \n \nPlan: \nI was asked to assess whether the  proposed surgeries are indicated \nor  not.  I  would  say  with  a  reasonable  degree  of  medical  certainty \nthat  the  proposed  cervical  and  lumbar  fusion  surgeries  are  not \nindicated. In the cervical spine there is no evidence of nerve root or \nspinal  cord  compression  there  is  no  instability  or  fracture.  In  my \nopinion she does not have “segmental spinal stenosis” nor does she \nhave “kyphotic angulation in the cervical spine” as described by \nDr. Blankenship.  \n \n*** \nIt also appears that the patient will be given a cervical brace and a \nlumbar  brace  and  a  cervical  bone  stimulator  and  a  lumbar  bone \nstimulator  to  be  used  after  the  surgery.  The  cost  for  these  items \napparently  is  $1200  for  each  brace  and  $5000  for  each  stimulator \n“all to be given by Dr. Blankenship”. \n \n*** \n But she certainly does not need a 2 level cervical fusion nor does \nshe  need  an  anterior  lumbar  fusion.  I  would  not  recommend  any \nsurgery for her. \n \n On  January  30,  2025,  Dr.  Blankenship  authored  a  letter  to  the  claimant’s  attorney. \nFollowing are portions of that letter concerning the claimant’s cervical spine: \nI  have  received  Dr.  Bruffett’s  report  regarding  his  12-09-2024 \nevaluation  of  Ms.  Richard.  I  have  also  reviewed  my  previous \n\nRichard – H404248 \n \n-14- \nnotes.  First  of  all,  the  patient  has  certainly  failed  all  routine  and \nusually  conservative  measures.  I  respectfully  disagree  with  Dr. \nBruffett’s report. I have been following this patient for some time. \nShe does have significant pain.  \n \n*** \nConcerning  her  cervical  spine,  again,  as  I  have  indicated  in  my \nnotes, she has anterior disc protrusion with kyphotic angulation. In \nher  cervical  spine,  this  is  a  little  bit  more  difficult  diagnosis  and \noffering of treatment. She does have a narrowed spinal canal but is \nnot  myelopathic  on  examination.  Alignment  issues  have  become \nmore  and  more  apparent  thanks  to  our  orthopedic  brethren.  I  still \nthink  is  a  very  good  probability  that  correcting  her  alignment  will \nafford her long-term relief. \n \nI would also be reasonable to fix her back and then try to be more \nfocused on her neck after recovering from her back. \n \n*** \nAt present, given the description of her job, I do not feel she is able \nto return to work in her current job description. \n \nThis  narrative  has  been  based  on  a  reasonable  degree  of  medical \ncertainty. Any questions or concerns can be forwarded to me. \n \n On February 19, 2025, Dr Theodore Hronas authored a letter to the respondent’s attorney \nregarding a records review of the claimant’s case. Following are portions of that letter related to \nthe claimant’s cervical spine: \nThe  clinical  history  is  of  a  work-related  accidental  injury  that \noccurred  on  02/14/2024  and  described  as  “she  was  lifting  a \nresident  who  became  dead  weight  and  the  patient  experienced \npain.” MRI exams of the cervical and lumbar spine are presented \nfor  review.  The  studies  are  of  good  quality  and  sufficient  for \ndiagnostic   purposes.   I   am   a   board-certified   radiologist   with \nadditional training in body and musculoskeletal MRI, and therefore \nmy focus will be on the imaging studies provided. \n \n*** \nThe   MRI   of   the   cervical   spine,   10/23/2024,   demonstrates \nstraightening  but  normal  alignment  of  the  cervical  spine,  with  no \nevidence   of   fracture,   subluxation,   or   presence   of   a   kyphotic \ndeformity. The visualized posterior fossa and the cervical cord are \n\nRichard – H404248 \n \n-15- \nnormal. There is mild disc height loss and desiccation with diffuse \ndisc  bulging  at  C2/3,  C3/4,  C4/5,  and  C5/6,  with  superimposed \nsmall central disc protrusions at C2/3, C4/5, and C5/6 resulting in \nmild  central  canal  stenosis  without  cord  deformity  at  these  levels. \nThe  C6/7  and  C7/T1  disc  levels  are  normal.  The  foramina  are \npatent at all cervical levels. The posterior elements are intact. \n \n The   claimant   has   asked   the   Commission   to   determine   whether   she   sustained   a \ncompensable  cervical  spine  injury  on  February  14,  2024,  in  the  same  incident  in  which  she \nsustained a compensable lumbar spine and left shoulder injury. \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n The claimant was clear in her testimony that she experienced a “pop” in her low back but \nnot  her  neck.  However,  the  claimant  testified  that  she  felt  pain  in  her  cervical  spine  or  neck  at \nthat  time.  The  claimant  reported  her  incident  two  days  later  and  was  seen  at  the  Eastern \nOklahoma  Medical  Center  emergency  department  that  same  day.  During  that  visit  she  reported \ncervical  pain.  Her  physical  exam  from  that  visit  states, “Neck: Supple. left crivical  [sic] \nparaspinous  muscles  are  tender  to  palp.  No  midline  bony  tenderness.”  The  claimant  was \ndiagnosed with a cervical strain and prescribed Robaxin specifically “to alleviate muscle spasm.” \nDr.  Jeffrey  Johnson  was  the  physician  at  the  EOMC  emergency  department.  He  clearly  made \nobjective  findings  regarding  the  claimant’s  cervical  spine  in  the  physical  exam  noting “left \n\nRichard – H404248 \n \n-16- \ncrivical   [sic] paraspinous   muscles are  tender  to  palp.”  In  conjunction  with  specifically \nprescribing  Robaxin  for  muscle  spasm,  this  finding  is  consistent  with  the  Court  of  Appeals \ndecision in Melius vs Chapel Ridge Nursing Center, LLC, 2021 Ark. App. 61, 618 S.W.3d 410, \nregarding  objective  medical  findings.  The  claimant  is  also  able  establish  a  causal  connection \nbetween her objective medical findings and the incident in which she alleges the cervical injury. \nThat same incident resulted in compensable lumbar spine and left shoulder injuries. The claimant \nfirst  reported  her  cervical  pain  to  her  first  medical  provider,  Dr.  Johnson.  I  find  the  claimant  is \nable to prove she sustained a compensable cervical injury on February 14, 2024, in the form of a \ncervical strain. \n It appears that the claimant’s cervical strain resolved quickly as  the  claimant  did  not \nagain  make  medical  providers  aware  of  cervical difficulties until  a  fall  in  July  of  2024.  The \nclaimant’s medical records do not indicate cervical pain or difficulties after  her  February  16, \n2024, emergency department visit until her fall in July of 2024. The claimant then begins to often \ncomplain of cervical pain.  \n It  is  at  that  time  that  the  medical  records  show  she  begins  to  seek  treatment  which  has \nultimately brought Dr. Blankenship to the conclusion that the claimant needs cervical surgery. I \nnote both Dr. Bruffett and Dr. Hronas disagree with Dr. Blankenship’s recommendation for \nsurgery. The claimant must prove that the medical treatment in the form of surgical intervention \nis reasonable and necessary treatment for her compensable cervical spine injury. \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n\nRichard – H404248 \n \n-17- \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n While   I   recognize   the   medical   opinions   of   Dr.   Blankenship   differ   regarding   the \nclaimant’s cervical spine on the course of treatment, they also differ on how the claimant’s MRI \nresults  are read.  I  agree  with  the  position  of  Dr. Bruffett  and  Dr.  Hronas  that  the  claimant  does \nnot  need  the  recommended  cervical  spine  surgery.  Furthermore,  I  find  that  any  cervical  spine \ntreatment the claimant is in current need of is the result of her July 2024 fall when she begins to \ncomplain of cervical spine pain again or some other condition. The claimant has failed to prove \nby a preponderance of the evidence that the cervical surgery recommended by Dr. Blankenship is \nreasonable and necessary treatment for her compensable cervical strain of February 14, 2024. \n The  claimant  has  also  asked the  Commission  to  determine  whether  she  is  entitled  to \nadditional  medical  treatment  for  her  compensable  low  back  injury  of  February  14,  2024.  I  note \nthat  several  of  the  later  dated  medical  records  admitted  into  evidence  deal  with  both  the \nclaimant’s lumbar and cervical spine. I have attempted above to isolate the portions of those \nmedical records that deal with the cervical spine. I will attempt to do the same here regarding the \nclaimant’s lumbar spine. \n The  claimant’s  medical  records  clearly  indicate  that  she  has  continuously  sought \ntreatment  for  her  lumbar  spine  beginning  with  her  February  23,  2024,  visit  to  Mercy  Clinic \nOccupational  Medicine – Fort  Smith,  including  a  lumbar  MRI  performed  on  March  22,  2024. \nThe diagnostic report was done by Dr. Alan Richard  at Mercy  Hospital and gave the  following \nImpression: \nImpression: \n\nRichard – H404248 \n \n-18- \nIMPRESSION: \nMild  degenerative  change  throughout  the  lumbar  spine.  The  most \nsignificant finding is a broad-based disc bulge eccentric to the left \nat L5-S1 which abuts the proximal S1 nerve root. \n \n The  claimant  has  undergone  conservative  treatment  including  prescription  medications, \nlumbar  epidural  steroid  injections,  and  physical  therapy.  The  claimant  eventually  finds  herself \nunder  the  care  of  Dr.  Blankenship  on  September  23,  2024.  Following  is  a  portion  of  that  visit \nnote regarding the claimant’s lumbar spine: \nHPI: \nThe patient has lower back pain, bilateral hip and buttock pain left \ngreater  than  right,  posterior  lower  extremity  pain  left  greater  than \nright,  and  decreased  strength  in  both  legs  left  greater  than  right. \nShe  has  fallen  a  couple  of  times.  She  denies  any  incontinence  or \nretention.  Standing,  walking,  and  bending  increase  her  pain.  She \nwas  injured  in  2/2024  lifting  a  resident  and  turned  and  her  back \npopped with progressive increase in her pain. She was given some \nhome  exercises  but  has  had  no  significant  conservative  treatment \nother   than   an   LESI   that   was   done   in   6/2024   that   actually \nexacerbated  her  pain.  She  is  currently  only  taking  gabapentin  300 \nmg 3 times a day. The patient also had and is still having neck and \nupper  left  arm  pain.  This has not  gotten  any  better  since  the \naccident but has really not been worked up. \n \nChief Complaint: \nChief Complaint: LEFT SIDE LOW BACK PAIN. \n \n*** \nDiagnosis: \nM51.26 Other intervertebral disc displacement, lumbar region \nM54.50 Low Back Pain \n \nImpression: \nHer   general   neurological   examination   reveals   the   patient   has \ndecreased  sensation  in  the  L5  and  S1  dermatomes  on  the  left. \nInterestingly,  she  has  some  myelopathic  findings  on  exam  with \nmostly  brisk  reflexes  throughout  the  upper  and  lower  extremities \nwith a positive Hoffmann’s on the right. Her SI joint examination \nis   markedly   positive   on   the   left-hand   side.   Her   piriformis \nexamination is also positive. \n \n\nRichard – H404248 \n \n-19- \nHer  MRI  demonstrates  a  gross  annular  fissure  off  to  the  left-hand \nside  consistent  with  her  back  pain  on  that  side  as  well  as  her  leg \npain.  She  has  significant  foraminal  narrowing  due  to  disc  space \nsettling  and  a  posterior  disc  protrusion  along  with  a  caudally \nmigrated  disc  fragment  on  the  left.  I  told  her  concerning  this  we \nneed to treat this conservatively. \n \n*** \nRecommendations: \n \n*** \nI  would  recommend  that  we  have  Dr.  David  Cannon  evaluate  her \nfor a left-sided SI joint injection at the lumbosacrum on the left. If \nshe  does  not  get  any  significant  relief  with  this,  I  do  want  to  go \nahead  with  the  transforaminal  ESI  at  L5-S1  on  the  left  if  Dr. \nCannon  agrees.  It  is  complicated  is  the  as  we  get  her  back  in  to \nwork with Velvet’s folks, I do not want to start doing anything \nwith her neck until we get the MRI. Once I see it, if it is okay, we \nwill  add  that  to  her  treatment  regimen.  I  have  recommended  we \nstart her on meloxicam and have her continue on her gabapentin. I \ntold  her  most  importantly  we  need  to  get  her  started  with  an \naggressive  active  physical  therapy  program.  She  lives  in  Podo.  I \ntold  her  my  preference  would  be  to  have  this  done  in  Fort  Smith, \nbut I realize that is 30 minutes away. We will coordinate that with \nher before she leaves today. I do want to go ahead and get her set \nup  to  see  Dr.  Cannon.  Unfortunately  for  her,  there  is  nobody  here \ntoday, and we will have to get it authorized. \n \n*** \nIn summary, she does have a posterior disc protrusion eccentric off \nto  the  left.  I  do  think  this  is  the  probable  culprit  of  her  pain, \nalthough  she  certainly  does have  some  S1   findings,  and  the \nmechanism of injury would be consistent with either. I would like \nto get her SI joint injected first and if that does not bear fruit do a \ntransforaminal  ESI  at  the  lumbosacrum  on  the  left-hand  side.  We \nare going to start working the Velvet’s folks. I will plan on seeing \nher  back  in  about  8  weeks.  Since  her  work  cannot  accommodate \nrestrictions,   she   is   off   work   until   she   sees   me   back.   She \nunderstands and agrees with the game plan. \n \n The claimant again saw Dr. Blankenship on November 21, 2024. Following is a portion \nof that visit note regarding the claimant’s lumbar spine: \nHPI: \n\nRichard – H404248 \n \n-20- \nThe  patient  is  in  today  with  a  new  cervical  MRI.  She  has  been \ndoing  her  physical  therapy  for  her  neck  and  her  low  back.  She \nstates  it  does  not  afford  any  relief;  if  anything,  it  aggravates  her \npain.  She  is  still  taking  her  meloxicam  and  rates  her  pain  about \n80%   toward   the   worst   pain   imaginable.   Her   greatest   pain \ncomplaint is her left-sided low back pain that radiates into the left \nhip, left buttock, and goes down the posterior aspect of the bilateral \nlower  extremities  to  her  feet  with  her  left  greater  than  right.  She \nhas decreased strength in both legs, left greater than right. She did \nget her left SI joint injection but had no relief.  \n \n*** \nChief Complaint: \nChief Complaint: LEFT SIDE LOW BACK PAIN; NECK PAIN. \n \n*** \nDiagnosis: \nM54.2 Cervicalgia \nM50.20  Other  cervical  disc  displacement,  unspecified  cervical \nregion. \n \nImpression: \nThe  patient  returns  today  increasing  in  pain.  She  did  not  get  any \nrelief with her SI joint injection.  \n \n*** \nConcerning  her  lumbar  spine,  she  has  marked  disc  space  settling \nand  foraminal  stenosis  at  the  lumbosacrum.  She  does  have  some \nmild bilateral lateral recess stenosis at L4-5, and she has a midline \ndisc  protrusion  with  several  bilateral  foraminal  stenosis  at  the \nlumbosacrum.  I  do  not  have  any  doubt  that  that  is  the  etiology  of \nher back pain and leg pain. \n \nRecommendations: \n \n*** \nAt  the  lumbosacrum,  she  would  need  to  undergo  an  anterior \nlumbar interbody arthrodesis with ENZA-A stabilization. I told her \ninitially   I   would   rely   on   indirect   decompression   rather   than \nopening her back up to openly decompress the nerve roots. After a \nvery lengthy discussion, she does want to proceed on with cervical \nand  lumbar  arthrodesis.  I  have  told  her  we  would  do  the  cervical \nfirst   and   then   a   week   or   2   later   do   her   lumbar   standalone \narthrodesis. She left with no further questions.  \n \n\nRichard – H404248 \n \n-21- \n*** \nThe  rationale  for  the  lumbar  spine  is  failure  of  conservative \ntreatment  with  a  midline  disc  herniation  with  retrolisthesis  and \nsagittal plane malalignment. \n \n On  December  9,  2024,  the  claimant  was  seen  by  Dr.  Wayne  Bruffett.  Following  is  a \nportion of that medical record regarding her lumbar spine: \nChief Complaint: \nNeck pain and low back pain \n \nHPI: Shundreka Richard is a 34 y.o. year old female who got hurt \nat  work  on  February  14\nth\n.  She  works  as  a  CNA.  She  was  lifting  a \nresident who became dead weight and the patient experienced pain \nin her neck and low back. She has had an MRI scan of her cervical \nand  lumbar  spine  and  she  reports  that  she  has  had  extensive \ntreatments  with  medications  physical  therapy  and  spinal  cord \ninjections. Surgery has been recommended in both the cervical and \nlumbar spine. She is here for an IME. \n \n*** \nDiagnosis   cervical   degenerative   disc   disease   with   cervical \nstrain \nLumbar degenerative disc disease with lumbar strain \nDisc   herniation   L5-S1   on   the   left   without   specific   S1 \nradiculopathy \n \nAssessment: \nShundreka  Richard  is  a  34  y.o.  year  old  female  with  3  young \nchildren  who  had  a  work  related  injury  resulting  in  neck  and  low \nback pain. She is here for a 2\nnd\n opinion/IME. \n \nPlan: \nI was asked to assess whether the  proposed surgeries are indicated \nor  not.  I  would  say  with  a  reasonable  degree  of  medical  certainty \nthat  the  proposed  cervical  and  lumbar  fusion  surgeries  are  not \nindicated.  \n \n*** \nApparently  his  indication  for  the  lumbar  fusion  is  “failure  of \nconservative   treatment   with   a   midline   disc   herniation   with \nretrolisthesis and sagittal plane malalignment”. It also appears that \nthe patient will be given a cervical brace and a lumbar brace and a \ncervical  bone  stimulator  and  a  lumbar  bone  stimulator  to  be  used \n\nRichard – H404248 \n \n-22- \nafter  the  surgery.  The  cost  for  these  items  apparently  is  $1200  for \neach brace and $5000 for each stimulator “all to be given by Dr. \nBlankenship”. \n \nThe  patient  has  positive  Waddell  signs.  Today  she  is  using  a \nrolling type walker. Her description of her pain is in excess of any \nobjective findings on her imaging. She does have a disc herniation \nat  L5-S1  on  the  left.  If  she  had  a  specific  S1  radiculopathy  down \nher left leg and failed specific treatments directed towards this then \na  microscopic  partial  diskectomy  at  L5-S1  on  the  left  in  my \nopinion   would   be   a   reasonable   surgical   procedure   for   her. \nHowever,   she   does   not   really   complain   of   a   specific   S1 \nradiculopathy  down  her  left  leg  and  does  not  have  any  type  of \nneurological deficit associated with this so in my opinion a surgery \nsuch  as  that  would  even  have  risks  that  would  outweigh  the \nbenefit.  \n \n*** \nI would not recommend any surgery for her. \n \n On  January  30,  2025,  Dr.  Blankenship  authored  a  letter  to  the  claimant’s  attorney \nregarding Dr. Bruffett’s medical report pertaining to the claimant’s lumbar spine. Those portions \nfollow: \nI  have  received  Dr.  Bruffett’s  report  regarding  his  12-09-2024 \nevaluation  of  Ms.  Richard.  I  have  also  reviewed  my  previous \nnotes.  First  of  all,  the  patient  has  certainly  failed  all  routine  and \nusually  conservative  measures.  I  respectfully  disagree  with  Dr. \nBruffett’s report. I have been following this patient for some time. \nShe  does  have  significant  pain.  She  does  have  lower  back  pain \nalong with her left posterolateral leg pain. I think that her leg pain \nis probably coming from the severe foraminal stenosis that she has \nbilaterally.  The  disc  protrusion  with  caudal  migration  and  annular \nfissuring   is   noted.   A   simple   discectomy   that   Dr.   Bruffett \nmentioned is not going to treat her foraminal stenosis at all. It is for \nthat  reason  I  offered  her  an  anterior  lumbar  interbody  arthrodesis \nas a standalone procedure to avoid operating  and cutting open her \nback,  which  will  lead  to  increased  morbidity.  As  far  as  the \nrisk/benefit  ration,  anterior  lumbar  interbody  arthrodesis  in  young \nand healthy people has a very low risk of morbidity, which I have \ngone  over  with  her,  and  she  has  accepted  those  risks  for  surgical \nintervention.  At  the  lumbosacrum,  we  are  working  between  the \nvessels. The incident of vascular injury is not significantly higher.  \n\nRichard – H404248 \n \n-23- \n \nIn  summary,  it  is  my  opinion  based  on  a  reasonable  degree  of \nmedical certainty that the offering of an anterior lumbar interbody \narthrodesis  as  a  standalone  procedure  to  decrease  morbidity  in \npostoperative recovery is a very reasonable thing to offer a patient \nwho has railed routine and usual conservative measures. \n \n*** \nI would also be reasonable to fix her back and then try to be more \nfocused on her neck after recovering from her back. \n \nAgain,  concerning  her  lumbar  spine,  in  my  clinical  practice  and \nyears  of  experience,  this  is  a  very  reasonable  offering  of  surgical \nintervention, and I respectfully disagree with Dr. Bruffett. \n \nAt present, given the description of her job, I do not feel she is able \nto return to work in her current job description. \n \nThis  narrative  has  been  based  on  a  reasonable  degree  of  medical \ncertainty. Any questions or concerns can be forwarded to me. \n \n On February 19, 2025, Dr. Theodore Hronas authors a letter to the respondent’s attorney \nregarding his review of a portion of the claimant’s medical records. Following is a portion of that \nletter regarding the claimant’s lumbar spine: \nThe  clinical  history  is  of  a  work-related  accidental  injury  that \noccurred  on  02/14/2024  and  described  as  “she  was  lifting  a \nresident  who  became  dead  weight  and  the  patient  experienced \npain.” MRI exams of the cervical and lumbar spine are presented \nfor  review.  The  studies  are  of  good  quality  and  sufficient  for \ndiagnostic   purposes.   I   am   a   board-certified   radiologist   with \nadditional training in body and musculoskeletal MRI, and therefore \nmy focus will be on the imaging studies provided. \n \nRadiographs  of  the  lumbar  spine  02/23/2024,  demonstrate  normal \nvertebral   body   alignment   with   no   evidence   of   fracture   or \nsubluxation.   The   posterior   elements   are   intact.   There   are   no \nradiographic findings of an acute lumbar spine injury. \n \nThe  MRI  exam  of  the  lumbar  spine,  03/22/2024,  was  performed \napproximately  five  weeks  after  the  date  of  injury.  This  exam \ndemonstrates   normal   alignment   of   the   lumbar   spine   with   no \nevidence  of  fracture  or  subluxation.  The  conus  medullaris  is \n\nRichard – H404248 \n \n-24- \nnormal.  Sagittal  STIR  images  demonstrate  no  evidence  of  bone, \ndisc space, or soft tissue edema. The T12/L1, L1/2, L2/3, and L3/4, \ndisc   spaces   are   preserved,   but   there   is   bilateral   mild   facet \narthropathy   at   these   levels,   with   no   associated   central   canal \nstenosis or foraminal narrowing. At L4/5, there is mild diffuse disc \nbulging,  bilateral  mild  facet  arthropathy,  and  ligamentum  flavum \nthickening  resulting  in  mild  to  moderate  central  and  lateral  recess \nstenosis  and  bilateral  mild  to  moderate  foraminal  narrowing.  At \nL5/S1,  there  is  disc  desiccation,  diffuse  disc  bulging,  with  a \nsuperimposed  broad-based  left  paracentral  disc  protrusion  causing \nnarrowing  of  the  left  lateral  recess  with  mild  mass  effect  on  the \nadjacent  S1  nerve  root.  There  is  bilateral  mild  facet  arthropathy \nand   mild   ligamentum  flavum   thickening   resulting   in   mild   to \nmoderate  foraminal  narrowing  at  the  L5/S1  level.  The  posterior \nelements are intact. There are no paraspinal abnormalities. \n \n*** \nIn  summary,  the  MRI  of  the  lumbar  spine  demonstrates  chronic \ndegenerative  changes  at  L4/5  and  L5/S1  with  a  broad-based  left \nparacentral  disc  protrusion  at  L5/S1  resulting  in  mild  mass  effect \non  the  adjacent  S1  nerve  root.  I  defer  to  the  clinical  evaluation  of \nDr.  Blankenship  and  Dr.  Bruffett  in  regard  to  whether  there  is  a \nsymptomatic left S1 radiculopathy. In regard to Dr. Blankenship’s \ncomment, “I think that her leg pain is probably coming from the \nsevere foraminal stenosis that she has bilaterally,” I see only mild \nto  moderate  bilateral  foraminal  narrowing,  not  severe  foraminal \nnarrowing,  at  L4/5   and  L5/S1  with  no  objective  findings  of \nforaminal  nerve  root  impingement  within  the  lumbar  spine  at  any \nlevel.  The  MRI  of  the  cervical  spine  demonstrates  multi-level \ndegenerative  changes,  and  multiple  small  central  disc  protrusions \nwithout cord deformity or foraminal narrowing at any level within \nthe cervical spine. In regard to Dr. Blankenship’s comment, “she \nhas anterior disc protrusion with kyphotic angulation,” I see no \nevidence   of   an   anterior   disc   protrusion   and   no   evidence   of \nkyphosis.  \n \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \n\nRichard – H404248 \n \n-25- \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n The  claimant  has  continually  complained  of  lumbar  spine  difficulties  as  a  result  of  her \nFebruary 14, 2024, compensable lumbar spine injury. The claimant has undergone conservative \ntreatment and Dr. Blankenship, her treating physician, has recommended “At the lumbosacrum, \nshe would need to undergo an anterior lumbar interbody arthrodesis with ENZA-A stabilization. \nI  told  her  initially  I  would  rely  on  indirect  decompression  rather  than  opening  her  back  up  to \nopenly decompress the nerve roots.” \n Here,  clearly  Dr.  Blankenship  and  Dr.  Bruffett  disagree.  Dr.  Bruffett  says  he  ultimately \nwould  not  recommend  any  surgery  for  the  claimant, but  if  he  did,  it  would  be  a  microscopic \npartial  discectomy  at  L5-S1  on  the  left.  It  appears  Dr.  Bruffett  is  basing  his  opinion,  at  least  in \npart,  on  his  clinical  findings  including  positive  Waddell  signs  and  “pain  in  excess  of  any \nobjective findings.” As to Dr. Hronas, he does differ on the review of the claimant’s lumbar \nMRI.  Dr.  Hronas  finds  only  mild  to  moderate  bilateral  foraminal  narrowing.  Dr. Blankenship \nfinds there to be severe foraminal stenosis bilaterally. However, Dr. Hronas does state, “I defer \nto  the  clinical  evaluations  of  Dr.  Blankenship  and  Dr.  Bruffett  in  regard  to  whether  there  is  a \nsymptomatic left S1 radiculopathy.” \n I  find  Dr. Blankenship  to  be  in  the  best  position  to  clinically diagnose and  recommend \ntreatment for the claimant. Given the consistency of the claimant’s lumbar spine complaints, her \ntreating physician’s clinical observations of her, and the failed conservative treatment, I find Dr. \nBlankenship’s surgical recommendations for the claimant’s lumbar spine to be reasonable and \nnecessary treatment for the claimant’s compensable lumbar spine injury. \n\nRichard – H404248 \n \n-26- \n The  claimant  has  asked  the  Commission  to  determine  whether  she  is  entitled  to \ntemporary total disability benefits from March 26, 2024, through September 22, 2024.  \nIn order to be  entitled to temporary total disability benefits, the claimant  has the burden \nof proving by a preponderance of the evidence that he remains within his healing period and that \nhe suffers a total incapacity to earn wages as a result of his compensable injury. Arkansas State \nHighway  &  Transportation  Department  v.  Breshears, 272  Ark.  244,  613  S.W.  2d  392  (1981).\n The claimant gave direct examination testimony regarding her last treatment with Mercy \nClinic  Occupational  Medicine – Fort  Smith,  her  work  restrictions  and  discontinuing  work  as \nfollows: \nQ At  some  point  did  Occupational  Medicine  stop  providing \nyou treatment? \n \nA Yes. \n \nQ Do you know when, approximately? \n \nA I honestly don’t remember the date. \n \nQ What is your understanding of why Occupational Medicine \nstopped providing you treatment? \n \nA I was told that she didn’t know why they sent me. There \nwas  nothing  else  that  she  could  do  for  me.  And  that  I  should \ncontinue to follow up with my primary care physician. \n \nQ And   your   primary   care   physician   was   another   Mercy \ndoctor, but over in Oklahoma, I believe; is that right? \n \nA Yes, sir. \n \nQ So when did you start missing work? \n \nA When  I  went  to  work  and  I  had  a  conversation  with \nJasmine about my restrictions not being followed. They wanted me \nto help put residents in the bed and run meal trays. Anything aside \nfrom sitting work and vitals is what they wanted me to do. \n\nRichard – H404248 \n \n-27- \n \n And that day I told – I had a conversation with Jasmine and \nI  told  her  that  that  was  outside  of  my  restrictions.  She  never \nmessaged me back, but I left that day. \n \nQ So was that on or about March 26\nth\n of 2024? \n \nA Yes, sir. \n \nQ Have you been back to work since then? \n \nA Yes, I did. \n \nQ Now, my records show that that was on or about September \n23\nrd\n of  2024  and  the  workers’  compensation  insurance  carrier \nstarted your benefits as of that date; is that correct? \n \nA Yes, sir. \n \nQ Between   March   26\nth\n of  ’24  and  when  you  saw  Dr. \nBlankenship,  did  our  condition  stay  the  same,  get  better  or  get \nworse? \n \nA It got worse. \n \nQ If   you   were   unable   to   perform   your   job   duties   on \nSeptember  23\nrd\n of  2024,  would  you  have  also  been  unable  to \nperform  your  job  duties  during  the  period  of  time  between  March \n26\nth\n and September 23\nrd\n? \n \nA Yes, sir. \n \nQ What was there about your condition that caused you not to \nbe able to work? \n \nA Walking.  I  was  having  muscle  spasms.  Well,  I  still  have \nmuscle spasms when I walk. I have a pain in my legs, my butt, my \nback,  and  my  neck.  Bending  hurts.  Looking  up  or  looking  down \nfor too long, I get headaches in my head and I have to lay down. It \nmakes me nauseous. It makes me feel like I am going to pass out. \n \n The  work  restrictions  placed  on  the  claimant  were  from  Mercy  Clinic  Occupational \nMedicine – Fort  Smith  in  a  report  dated  March  25,  2024.  Those  restrictions  were  as  follows, \n\nRichard – H404248 \n \n-28- \n“Recommended Activity Restrictions Alternate sit/stand/walk as tolerated. Primarily sedentary \nduty.” The  next  medical  record  removing  the  claimant  from  work  or  restricting  the  claimant  is \nfrom  Dr.  Blankenship  on  September  23,  2024,  when  he  removes  the  claimant  from  work  until \nNovember 21, 2024. \n I find the claimant to have still been in her healing period from March 26, 2024, through \nSeptember 22, 2024. However, the claimant must also prove by a preponderance of the evidence \nthat  she  suffers  a  total  incapacity  to  earn  wages  as  a  result  of  her  compensable  injuries.  The \nclaimant cannot meet that proof regarding total incapacity. In fact, she was able to sit/stand/walk \nas tolerated and perform sedentary duties. At one point in testimony, the claimant complains of \ntaking  meal  trays  as  she  believes  it  to  be  outside  of  her  restrictions.  I  do  not  find  that  to  be  so. \nThe claimant was asked, “What was there about your condition that caused you not to be able to \nwork?” The first part of her response is “Walking,” which is clearly allowed at least in part under \nher  restrictions  during  that  period.  I  also  note  that  the  claimant  saw  several  other  medical \nproviders between March 26, 2024, and September 22, 2024, and to my knowledge, no provider \nplaced  restrictions  or  removed  the  claimant  from  work.  The  claimant  is  unable  to  prove  her \nentitlement  to  temporary  total  disability  benefits  from  March  26,  2024,  through  September  22, \n2024. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n \n \n\nRichard – H404248 \n \n-29- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nMarch 17, 2025, and contained in a Pre-hearing Order filed March 18, 2025, are hereby accepted \nas fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  sustained  a \ncompensable injury to her cervical spine on or about February 14, 2024. \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto  medical  treatment  for  her  compensable  cervical  spine  injury  in  the  form  of  surgery  as \nrecommended by Dr. Blankenship. \n 4.  The  claimant  has  proven  by  a  preponderance  of  the  evidence that  she  is  entitled  to \nadditional  medical  treatment  for  her  compensable  low  back  injury  in  the  form  of  surgical \nintervention as recommended by Dr. Blankenship. \n 5. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits form March 26, 2024, through September 22, 2024. \n 6. The claimant has failed to prove by a preponderance of the evidence that her attorney \nis entitled to an attorney’s fee in this matter. \n ORDER \nThe  respondent  shall  pay  the  cost  associated  with  the  surgical  recommendations  of  Dr. \nBlankenship for the claimant’s compensable lumbar spine injury, including its aftercare. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.” Here, no indemnity \nbenefits were awarded; therefore, no attorney fee has been awarded. Instead, claimant’s attorney \nis free to voluntarily contract with the medical providers pursuant to A.C.A. §11-9-715(a)(4). \n\nRichard – H404248 \n \n-30- \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":58129,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404248 SHUNDREKA RICHARD, Employee CLAIMANT KMJ MANAGEMENT, LLC, Employer RESPONDENT ACCIDENT FUND INS., Carrier RESPONDENT OPINION FILED JULY 30, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claiman...","outcome":"granted","outcomeKeywords":["granted:5","denied:3"],"injuryKeywords":["back","shoulder","cervical","lumbar","neck","strain","fracture","hip"],"fetchedAt":"2026-05-19T22:39:11.567Z"},{"id":"alj-H303124-2025-07-29","awccNumber":"H303124","decisionDate":"2025-07-29","decisionYear":2025,"opinionType":"alj","claimantName":"David Otwell","employerName":"Jerry Lynn Roberson","title":"OTWELL VS. JERRY LYNN ROBERSON AWCC# H303124 July 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/OTWELL_DAVID_H303124_20250729.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OTWELL_DAVID_H303124_20250729.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303124 \nDAVID OTWELL, EMPLOYEE      CLAIMANT \n \nJERRY LYNN ROBERSON      RESPONDENT  \n \nEMPLOYERS REFERRED INSURANCE CO.,  \nCARRIER/TPA        RESPONDENT \n \nOPINION ON REMAND FILED JULY 29, 2025 \nThe original Hearing  before  Administrative  Law  Judge,  James  D. Kennedy, was \nheld on the 18\nTH\n day of September, 2024, in Mountain Home, Arkansas, and an opinion \nwas issued on November 1, 2024.  After an appeal to the Full Commission, the matter \nwas  remanded on  May  22,  2025, to  the  ALJ  to  enter additional findings  of  fact  and \nconclusions  of  law  in accordance  with  Ark. Code Ann.  11-1-204  and  to adjudicate and \nreview the Empower Independent Contractors Act and its twenty factors. \nClaimant is represented by Rick Spencer, Attorney at Law, Mountain Home, Arkansas. \nRespondents are represented  by James  A.  Arnold,  Attorney  at  Law, Little  Rock, \nArkansas. \nSTATEMENT OF THE CASE  \n A hearing  was originally conducted  on  the 18\nth\n day  of September  18,  2024, in \nMountain   Home,   Arkansas, to   determine   the issue of the   existence   of   an \nemployee/employer carrier relation and if the relationship existed, the compensability for \ninjuries  to  the  claimant’s  back,  both  hands  and  wrists,  along  with reasonable  and \nnecessary  medical  care.    The  issues  of  TTD, an impairment  rating,  and  attorney  fees \nwere reserved at the time of the hearing.   \n\nDavid Otwell – H303124 \n2 \n \nA copy of the Pre-hearing Order dated June 4, 2024, as well as the response to \nthe Prehearing Questionnaire by both the Claimant and the Respondent were made part \nof  the  record  without  objection.  The  Order  provided  that  the  Arkansas  Workers’ \nCompensation Commission had jurisdiction of the claim, and the matter was controverted \nin its entirety.  The claimant contended at the time of the injuries to his back, both hands, \nand wrists, that he was in the course and scope of his employment with Jerry Roberson.  \nHe further contended that Mr. Roberson directed the work in regard to the house that he \nwanted completed, provided tools, and paid the Claimant wages for the work completed.  \nAs a result of his injury, the Claimant contended that he was entitled to reasonable and \nnecessary  medical  treatment,  past  due  TTD  benefits  (dates  to  be  determined)  and  an \nimpairment rating including PTD benefits.  The Respondents contended that the Claimant \ndid not meet the statutory definition of an employee. \n From  a  review  of  the  record  as  a  whole, to  include  medical  reports  and  other \nmatters properly before the Commission plus having had an opportunity to observe the \ntestimony and  demeanor of  the  witnesses, and  in  addition  review  and  reach  a \ndetermination of the findings of fact and conclusions of law in accordance with Ark. Code \nAnn  11-1-204  and  also  review  the twenty  factors  of  the Empower  Independent \nContractors  Act, the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n\nDavid Otwell – H303124 \n3 \n \n2. That the claimant has failed to satisfy the required burden of proof to show \nthat an employer/employee carrier relationship existed between the claimant \nand the respondent on June 25\nth\n, 2022, the date of the injury.  \n3. That all other issues are found to be moot. \n4.  If not already paid, the respondents are ordered to pay the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The  claimant was the initial witness  to  testify.  He  worked almost  30  years  in \nconstruction as a journeyman and testified that he was working for Jerry Roberson, the \nrespondent, on June 25\nth\n, 2022, on a house he had been told was going to be used as \nrental property. This was the property where he was working when the injury occurred.  \nThis property was going to be the respondent’s first rental property per the testimony of \nthe  claimant. The  respondent operated  a cell  phone  repair  facility. The  claimant  also \nworked for M&A/CNS Contracting (Construction), Monday through Thursday.  On Fridays, \nSaturdays, and some Sundays, he worked on the house owned by the respondent. (Tr. \n8,  9) The  claimant  stated that  he  had  previously  worked  on  a  house  owned  by  the \nrespondent, where the respondent resided,  back  in 2021  and  2022,  while working for \nM&A /CNS Contracting (Construction), and that they  did  some  odds  and  ends on  the \nhouse and redid a bathroom.  “After he saw what me and Tom could do, he approached \nus both and asked us if we could build a house for him was - - or build a rental property \nfor him.” He had the property and plans picked out. The respondent bought  all  the \nmaterials,  unless  there was  something  that  we  might  have  forgotten, and  he then \nreimbursed  us  for  it.  In  regard  to the tools,  the respondent furnished  generators,  air \n\nDavid Otwell – H303124 \n4 \n \ncompressors,  miscellaneous  hand  and  power  tools,  and  some  scaffolding  with  the \nscaffold boards. (Tr. 10, 11) The respondent had the right to hire and fire, he paid us in \ncash, paying around $30.00 an hour, and we only worked on the rental property. “If there \nwas something that we needed, he would get it for us.” He went on to state that he had \nworked  on  the  rental  property  from  roughly  January  through  his  fall which  occurred in \nJune. (Tr. 12, 13) \n In regard to the fall, he testified he was painting the two-story house located down \nby the river. While on a ladder painting the second story, the ladder somehow slipped and \nthe claimant fell 25 feet, landing on his chest. He knew something was really - wrong and \nstated  he  had  broken his  L1  and  shattered  his  L2.  They eventually  loaded  him in an \nambulance and placed him on a med flight. In regard to workers’ compensation insurance, \nthe  claimant testified that the  second  week  out  there, the  respondent told  him and  the \nother workers that he had coverage. (Tr. 14, 15) \n The claimant was then questioned about a series of text messages between the \nclaimant and the respondent. The claimant went on to state that he could no longer work \nlike  he  was  doing, and  at  the  time  of  the  hearing, he  pointed  out that he  was  in  a \nwheelchair, and he had been in it since his fall. He admitted that he could walk some with \ncrutches and that he could move both legs, but he had control of one leg more than the \nother. He went on to state that he really did not have any real control of one leg.  He also \ntestified that he had no bladder sensation, so he was required to wear a catheter and had \nissues with his bowel movements. He worked for M & A/CNS for over 20 years. (Tr. 16 – \n18)   He didn’t know if the respondent ever used the term employee with him, but he was \n\nDavid Otwell – H303124 \n5 \n \nsure that he had asked him to quit M & A/CNS to take on a full-time responsibility for the \nconstruction he wanted.   \n Under cross examination, the following questioning occurred: \nQ:  Okay.  And on page 45 of the deposition, we talked about the insurance and your - - \nit says my question. “Did Jerry have a conversation with all three of you about getting \ninsurance?”  And you said, “The first week we were out there, there was no talk.  The \nsecond week we were there, Jerry came back and said I’ve got insurance on you guys, \nbut did not specify the kind of insurance.”  You just said that he told you that he had \nworkers’ comp.  He didn’t tell you that he had workers’ comp, did he?   \nA:  I didn’t say that. I didn’t say it was workers’ comp.  I said he had insurance on us. \nQ:  Do you know what builder’s risk is? \nA:  Kind of. Sort of. \nQ:  Okay.  Do you know that Tom Moore asked him to get builder’s risk so you could lock \nthe M & A tools up inside the cabin? \nA:  We didn’t leave M & A tools on the job site. \nQ:  Because you never got the locks installed, correct? \nA:  No, we had locks on the doors. \nQ:  Okay.  You’ve been in construction all your life? \nA:  Yes, sir. \nQ:  You have a full-time 40-hour week job with M & A Construction, now CNS, but the \nsame bunch, they just changed on them. \nA:  Yes. \nQ:  And you have been doing that for 22 or 24 years? \n\nDavid Otwell – H303124 \n6 \n \nA:  Yes, sir. \nQ:  Your entire life has been in the construction carpentry business, correct? \nA:  Yes, sir. \nQ.  Okay. And that’s what you were doing on this property that Jerry Roberson had? \nA:  Yes, sir. \nQ:  The same thing you’ve done all your life? \nA:  Yes, sir. \nQ:  Okay.  Now,  the  first  time  you  ever  worked for  Jerry  was  on  the  house  that  he  and \nSandy were living in, correct? \nA:  Correct. \nQ:  And your testimony here today and in your deposition was that Jerry asked Tom to \ncome do some work on his house and Tom asked Jerry, I need some help.  I know a guy \nat work.  Is it okay if we bring him? Is that how that happened, right? \nA:  That’s how that happened on his house, yes.  \n(Tr. 22, 23) \nThe  claimant  went  on  to  state that he  had  worked probably  eight  or  ten  days \nmaybe, on Jerry and Sandy’s home.  He also stated he was aware that the respondent \nhad a cell phone business, knew he did not have a construction company, and knew he \ndidn’t hold himself out as a construction company.  He also agreed he was never paid a \ndime  by  the  cell  phone  company.  (Tr.  24,  25) After about eight  or  ten  days, where he \nhelped remodel Jerry and Sandy’s house, he didn’t do anything for the respondent for \nfour months or so and during that time-period, he continued working for M & A. He also \nthought he had other side jobs during that time, where he would be paid cash just like the \n\nDavid Otwell – H303124 \n7 \n \nrespondent did, and he was not aware of any of them having workers’ compensation \ninsurance that covered him.  Tom and the claimant continued to be crew leaders with M \n& A during that time-period while performing the side job for the Respondent on Friday \nand  Saturdays.  He  also  admitted  to  having  one  other  side  job during  that time-period \nwhere he worked for someone else doing carpentry.  He admitted he didn’t write any of \nthe  invoices,  but  that  Tom  Moore  was  the  one  who  filled  them  out.  (Tr.  27 – 29)  The \nclaimant also admitted that the invoices that Tom filled out and gave to the respondent \nand which are before the Commission, had labor for three men, for two days, and that \nwas how the respondent paid him. (Tr. 31) The claimant also agreed that they supplied \nsome  of the  ladders  and  the  respondent  supplied  some  of them and they also used  a \nladder off the M & A truck.  Some of the tools came off the M & A truck, including a laser. \n(Tr.  32)  The  respondent was  paying  for  two M  & A  Jones  trucks  to  be  on  site,  in  case \nsomebody  needed  to  go  into  town  to  get  something.    The  claimant  admitted that on \noccasion, they would use some of the M & A Construction tools, but they tended to use \ntheir own personal tools stored in the trucks. (Tr. 33) \nIn regard to the directions given by the respondent, the claimant admitted that the \nrespondent ran a full-time cell company in Batesville and that he was not on site ten hours \na day like they were. He also admitted that in regard to the texts, some consisted of asking \nif the claimant or his partner needed the respondent to pick up something in town. The \nitems  the  respondent picked  up were to  assist  the  claimant and his  partners and  keep \nthem on the job site. The respondent would sometimes ask if they could do this or that \nand they would do it and sometimes they would tell him that it did not make any sense.  \nThe claimant admitted that the respondent did not instruct them on how to paint, how to \n\nDavid Otwell – H303124 \n8 \n \nhang trusses, or how to roof, due to the fact they were in the construction business.  The \nclaimant also admitted  that  Tom,  Jim,  and  he  were  all  hired  because  they  were \ncarpenters, and he wasn’t. (Tr. 34 – 37) The claimant was allowed to go work for someone \nelse if he was not working for the claimant on those days. (Tr. 38) He also admitted that \nhe  was  able  to  walk  about  200  feet  with  forearm  crutches  and  was  working  as  a \nsuperintendent for M & A Construction. \nOn redirect, the claimant stated that the respondent told them where to work and \npaid them. (Tr. 39) \nAt this point, the claimant rested, and the respondents called the respondent, Jerry \nRoberson, who stated that he used to own Cell Phone Central back in 2021 and 2022, \nand that he had owned the business since 2010, before selling it. The business fixed “cell \nphones, I-Pads, computers, anything electronic.”  He sold the business to his manager \nsometime around January of 2023.  The business did not do anything that wasn’t related \nto  technological  devices.  The  business  did  not  own  any  real  estate,  nor  did  it have \nanything to do with construction.  Prior to the cell phone business, the respondent stated \nthat he was a landscaper.  He was at one time an electrician’s helper and worked as an \nequipment  operator  in  the  past.    He  had  no  carpentry  skills  or  skills  of  any  kind  that \ntranslated into the construction of a home or residence.  He owned no rental property in \n2022.  \nThe respondent admitted meeting Thomas Moore when he was getting his hair cut \nby Thomas Moore’s wife and he mentioned a project where they were attempting to fix a \nfloor in the home he lived in with his wife.  Thomas Moore’s wife pointed to a picture of \nher husband and stated that he did work like that. (Tr. 42 - 44) Thomas Moore ultimately \n\nDavid Otwell – H303124 \n9 \n \nperformed the work on the house where they were living, which they sold at the end of \n2022. The  respondent  went  on  to  state  that Moore and  the  claimant  performed \nrenovations to the  house  which  included  filling  gaps  in  the  sheet  rock,  working in  the \nbathroom, and just general stuff around the house so they could sell it.  The respondent \nstated that he assumed Tom brought the claimant along to have extra help. (Tr. 45, 46) \nIn regard to the property by the river where the accident occurred, the respondent stated \nhe had owned the property since 2009, and after they sold their other property, the only \nproperty  left  was  the  river  property  where  the  accident  occurred and where they  were \ngoing to live.  The respondent testified that he had contacted Thomas in regard to building \non  the  property  and  was  told  to  bring  the  plans  over, which  he  did.  (Tr.  47,  48)  The \nrespondent was questioned about the invoices in regard to the project and he stated that \nThomas would provide the invoices on Saturday, and he would then pay them.  He would \ngive Thomas the money and he had no idea how much the others were paid or how much \nhe kept for himself.  He went on to state that the M & A Construction trucks were brought \nout  every  Friday  and  Saturday  and  they  were  full  of  tools.    He  also  stated  he  had  no \nworkers’ compensation  insurance  but  admitted  there  was  in  fact  a  discussion  about \ninsurance.  He was looking into purchasing builders’ risk for the property.  The respondent \nadmitted to supplying the air compressor and the generator which were already on site \nand  hooked  up  to  his  camper.    He  went  on  to  explain  that the solar  panels that  were \npresent would not power a coffee pot.  He also admitted to providing scaffolding that he \nhad bought at a yard sale, but stated they were never used. (Tr. 49 - 52)  In regard to \nsupplies, the  respondent  stated  that Thomas would  call  and  the  supplies  would  be \ndropped off, and he “would go into town six days a week to check on the phone store so \n\nDavid Otwell – H303124 \n10 \n \nI had a jeep and trailer and so a lot of times I would be called and told to pick up or texted.”  \nHe went on to state that a lot of the texts were in regard to picking up supplies.  He was \nrelying on Thomas and his crew to build a serviceable building, but did admit to picking \nout paint colors, tile, and things of that nature.  The respondent denied that Thomas, the \nclaimant, or  Jim  Halstead, had  anything  to  do  with  the  cell  phone  business.    The \nrespondent denied supervising the claimant’s work on the day of the accident or any other \nday. (Tr. 53, 54) \nUnder cross examination, the respondent denied ever filing a 1099 with the IRS. \n(Tr. 55) He did admit that when he resided at 90 Moore Avenue, he did say that he might \nbuild a house on it to rent but “I never said for sure we were going to build anything until \nthe other two houses sold.”  He denied there being a possibility of rentals for income \npurposes at that point. (Tr. 56) The respondent also denied making house calls in the cell \nphone business and further stated that his employees never went to homes or businesses \nto assist in installation and getting things to work right. “They come to us.”  We are not a \n“go to you” business. (Tr. 58) The  respondent  was  also asked  did  you  not sometimes \ndirect them to do something other than what they wanted to do, and he responded “No.  \nThey didn’t listen to a word I said.” (Tr. 59) \nOn redirect, the respondent confirmed he was not on the building site when the \naccident happened but was down on the river a couple of hundred yards away. (Tr. 60)   \n   The claimant was then recalled, and he stated he had been told multiple times that \nthe property was a rental house and had even been told that a purchased vehicle charger \nwould allow an extra $20.00 rental charge.  In regard to the skills of the respondent, the \nclaimant replied, “He said he wasn’t an expert and that’s why he hired us.” (Tr. 63)  The \n\nDavid Otwell – H303124 \n11 \n \nclaimant  also  testified that he  was  sure  the  respondent  sometimes  got  things  for  the \nproject although he couldn’t recall 100% but that “He was in charge.”  The claimant was \nalso asked about workers’ compensation insurance and was he ever told that it was in \nplace, and he responded “No, sir.  He did not.” (Tr. 64) \n Claimant submitted a medical exhibit which was admitted without objection. The \nexhibit provided that the claimant was taken to UAMS by med flight on June 25, 2022, \nwith  a  closed, unstable  burst  fracture  of  the  second  lumbar  vertebra,  with  multiple \nfractures  of  ribs,  bilaterally  which  were confirmed  by an MRI, and which  also  showed \ncompression fractures of the L1 and L4 vertebral bodies, and severe canal compression \nwith  increased  T2  hypersensitivity.    There  was  no  evidence  of  traumatic  injury  to  the \nthoracic  spine.  Surgery  was  performed  on  June  26,  2022, and  the  postoperative \ndiagnoses provided for vertebral fractures of the L1, 2, 3 and 4 with a T12 spinous and \nlaminar fracture.  A burst fracture and a three-column injury at L2 resulted in a neurologic \ndeficit.  Additionally, two large traumatic dural tears with exposed nerve roots required a \nneural patch. Left  ankle imaging provided  for  no  fracture  or dislocation. Imaging  of  the \nright  wrist  provided  for  a  well  corticated  bone  fragment  along  the  dorsum  of  the  wrist, \nwhich could have been secondary to a triquetral fracture. (Cl. Ex. 1, P. 1 – 9) \n The  claimant  also  submitted  25  pages  of  text  messages  without  objection. The \ntexts consisted of the respondent requesting guidance on items to pick up, such as how \nlong “a piece of rigid” should he get or asking where an item was going to be obtained, \nalong with questions about doors and windows with the respondent requesting a picture \nand responding upon receipt of a photo, that it “looks good.”  One text asked the claimant \nwhether he would suggest an indoor or outdoor tankless water heater and he responded \n\nDavid Otwell – H303124 \n12 \n \nthat an outdoor model would save on venting.  A text was sent in regard to breakers and \nwho should purchase them.  Another text requested the respondent stop and obtain nails \nand the respondent requested a picture so he would know which ones to pick up.  At one \npoint, the respondent discovered a Dewalt nail gun and asked the claimant if he needed \nit.  The respondent was asked if he had contacted Batesville Glass at one point and he \nresponded  they  would  be  out on  Friday  or  Saturday.    The  respondent  was  also asked \nabout picking out can-lights and providing a layout for them, along with the speakers and \nceiling fan.  Additionally, he was asked about a light or vanity light above a sink and about \ncaulking the siding.  There were also texts about paying for items and a picture of a cotton \nmouth or a copper head snake in a hole. (CL. Ex. 2, P. 1 – 25) \n The  respondents  also  submitted  21  pages  of  non-medical  exhibits  without \nobjection.  The items consisted of the Contracting license for Thomas Moore. (Resp. Ex. \n1, P. 1) In addition, invoices directed to the respondent Jerry Roberson for the labor of \nthree men,  the  cost  of  two  trucks,  and  a  variety  of  materials  and  other  items  were \nintroduced. (Resp. Ex. 1, P. 2 -17) A photo of the M & A Jones truck was also introduced \nas well as a photo of the house under construction. (Resp. Ex. 1, P. 18, 19) A list of the \nCellphone Central Employees was also introduced, which did not include the name of the \nclaimant. (Resp. Ex. 1, P. 20, 21) \n The  respondents  also  summitted  the  deposition  of  the  claimant  dated  July  12, \n2023, which was  admitted  without  objection.  The  claimant  testified  under  direct in  the \ndeposition that he had learned in his apprentice program back in the 90’s how to basically \ndo  anything  as  far  as  construction  for  a  commercial  job.    He  stated  that  as  a  general \ncontractor, “we could take it from the ground up” and that he had been in the construction \n\nDavid Otwell – H303124 \n13 \n \nfield  ever  since, after  starting  in  94.    He also  stated that  he  had  never  been a  general \ncontractor.  (Resp.  Ex.  3,  P.  6)  He  admitted  that  he  was still working  for  M  &  A  Jones \nConstruction,  and  that  he  had  been  with  them  for  22  years.  (Resp.  Ex.  3,  P.  9)  While \nworking  for  M  &  A  Jones,  the  claimant  stated  that  he  answered  to Kyle  Johnson,  the \nsenior project manager, and to Arch Jones, the owner of the company until the end of \n2021.  At  that  time,  C  &  S  Contracting  took  over  the  ownership.    This  company  only \nperformed commercial work. (Resp. Ex. 3, P. 12 -13) \n The claimant testified that the first house that he worked on for the respondent was \na home where he was living, and Thomas Moore was working on the house and needed \nhelp and asked the claimant to assist him. He went on to explain that the house where \nthe injury occurred was a rental house. They started building that house with the help of \nJim Halstead, who was also an employee of M & A Construction. He affirmed that he had \nnever worked for the respondent’s business in Batesville and the project where he fell \nwas a residence and not a commercial building and that M & A was not doing this job. \n(Resp. Ex. 3, P. 15 – 20) \n The claimant went on to state he worked four tens for M & A Construction and then \nwould work Friday and Saturday on the residence.  They had agreed to a rate to be paid \nby the respondent, and were paid in cash, and he and Tom were paid the same, $30.00 \nan hour.  He thought Jim was also paid the same.  He did not see the respondent pay \nany of the tradesmen, but he was aware that the respondent did hire someone to put on \nthe roof and finish the sheetrock. (Resp. Ex. 3, P. 21, 22) No one from the respondent’s \ncompany came around and gave instructions, only the respondent.  He would come and \ntell us what he wanted. He did not tell us how to apply the paint or the Sheetrock or how \n\nDavid Otwell – H303124 \n14 \n \nto put up the trusses.  The claimant admitted that he was not told when to start and end \nwork but  did  state  the  respondent  wanted  the  house  built  as  fast  as  possible.   The \nrespondent also  supplied  the  materials  and  air  compressors,  table  saws,  generators, \nscaffolds, and scaffold boards. (Resp. Ex. 3, P. 23, 24) The claimant also thought that \nthey might have used some tools owned by M & A Construction. “For the most part, we \nused our personal tools or his tools.”  “Well, a carpenter always uses his personal tools.” \n(Resp. Ex. 3, P. 25) \n In  regard  to  payment,  Thomas would  prepare  one  invoice  and  give  it  the \nrespondent.    The  claimant  could  not  remember  if  he  was  ever  paid  separately  by  the \nrespondent, but did remember that the respondent would give them money to pay Jim. \n(Resp. Ex 3, P. 28) The claimant stated it was his understanding that the house where \nthe accident occurred was going to be used for something like an Airbnb or a Vrbo rental.  \nHe  further  stated  that  the  respondent  never  indicated  that  he  was  going  to  use  it.  \nHowever, it was his understanding he was building it for himself. (Resp. Ex. 3, P. 42, 43) \n Under direct examination by the claimant’s attorney, the claimant stated that the \nrespondent approached both of them at the same time to go to work and build the house.  \nThe  claimant  also  stated  he  was  part  of  the  process  preparing  the  invoices,  although \nThomas always gave the invoice to the respondent.  The claimant also testified that they \nwould be told by the respondent when he wanted something finished by a certain time. \n(Resp. Ex. 3, P. 44 – 46)  \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn determining whether the claimant has sustained his required burden of proof, \nthe  Commission  shall  weigh  the  evidence  impartially,  without  giving  the  benefit  of  the \n\nDavid Otwell – H303124 \n15 \n \ndoubt to either party.  Ark. Code Ann 11-9-704.  Wade v. Mr. Cavanaugh’s, 298 Ark. 364, \n768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence on \nall issues before it into findings of fact. Weldon v. Pierce Brothers Construction Co., 54 \nArk. App. 344, 925 S.W.2d 179 (1996). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe  Arkansas  Workers’  Compensation  Act  and  must  sustain  that  burden  by  a \npreponderance of the evidence. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 635 \nS.W. 2d 823 (1982).  Preponderance of the evidence means the evidence having greater \nweight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark App. 263, \n101 S.W.3d 252 (2003).  Questions concerning the credibility of witnesses and the weight \nto  be given  to  their  testimony  are  within  the  exclusive  province  of  the  Commission.  \nPowers v. City of Fayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007).  Where there \nare contradictions in the evidence, it is within the Commissions’ province to reconcile \nconflicting evidence and to determine the true facts.  Cedar Chem. Co. v. Knight, 99 Ark. \nApp.  162,  258  S.W.3d  394  (2007).   However,  the  Commission  may  not  arbitrarily \ndisregard the testimony of any witness.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. \n230, 184 S.W.3d 31 (2004).  \n   In  the  present  matter,  all  parties  agreed  the  claimant suffered  serious  injuries \nwhen  he  fell  from  a  ladder  while painting  on  the  second  floor of  a  construction  project \nowned by the respondent.  The primary question before the Commission is to determine \nif  an  employee/employer  carrier  relationship existed at  the  time  of  the  injury.    The \ntestimony provided that the claimant had worked in the construction carpentry business \nhis entire life and had worked for M & A Construction (now called CNS Contracting due \n\nDavid Otwell – H303124 \n16 \n \nto a change in ownership) for over 20 years.  He would work four ten-hour days, Monday \nthrough Thursday for M & A Construction, and then was allowed to find side jobs to work, \nduring his personal time.    He  was  allowed  to  use  the  construction  trucks  of  M  &  A \nConstruction  along  with  the company tools  on  the  truck,  plus  additional tools  of  the \ncompany such as a laser, on the side jobs.  The claimant testified that “a carpenter always \nuses his personal tools” but additionally used a generator, an air compressor, and a table \nsaw which were stored on the construction site and owned by the respondent.    \nThe claimant became acquainted with the respondent on a previous job repairing \na home where the respondent lived with his wife, and at the time of the accident he was \nworking  with  two  other  M  &  A Construction employees on the house which they  were \nconstructing on the river for the respondent.  The claimant stated he understood that the \nproperty was going to be rental property, but the respondent testified that since he had \nsold all his other property, he intended for the construction to become his residence. \nThe claimant testified there had been some discussion with all the parties that the \nrespondent  was  going  to  obtain  insurance but  admitted  that  workers’  compensation \ninsurance was not specifically mentioned.  The claimant also testified that he had worked \non other side projects where no workers’ compensation insurance covered them.  The \nrespondent  testified he  had  mentioned  insurance  and had looked into a builder’s risk \npolicy. \nIn regard to the actual construction project, the invoices were always submitted by \nThomas Moore, who was also an employee of M & A Construction, and who recruited the \nclaimant to work on the project.  The invoices provided for the number of men working \n(usually  two  or  three),  two  trucks,  and  materials  purchased.  The  claimant  testified  he \n\nDavid Otwell – H303124 \n17 \n \nassisted in  preparing the  invoices  and thought  that  the third  worker,  Jim, was paid  the \nsame as Thomas and he were.  The invoices were always paid in cash by the respondent \non a Saturday.  The respondent paid for most of the supplies. \nIn regard to supervision of the project, a number of text messages were entered \ninto the record with the majority of them involving instructing the respondent to pick up \nadditional  supplies  in  town at  the  instruction  of  the  claimant  and  his  co-workers.    The \nrespondent admitted he was in town every day due to his computer business, that he had \na  Jeep  and  trailer, and that he  would  pick  up  items  for  the  construction, attempting to \nkeep the claimant and his partners on the job site.  A few of the text messages asked \nabout how an item would appear such as windows.  One text discussed the discovery of \nsnakes in a hole near the construction.  The claimant stated in his deposition in regard to \nthe respondent’s skills, “He wasn’t an expert and that’s why he hired us.”  The claimant \nalso admitted the respondent never instructed them on how to paint, how to hang trusses, \nor how to roof, due to the fact they were in the construction business.  The respondent \nadmitted to picking out paint colors and tile and things of that nature. \nIn regard to the respondents’ business, Cell Phone Central, the claimant admitted \nhe was never paid by the company and the evidence provided he was not listed as an \nemployee.  The company owned no property and made no house calls.  The respondent \ntestified his customers for the cell phone business came to the business and that it was \nnot a “go to you business.”  The business, which was sold in January of 2023, repaired \ncell phones, I-Pads, computers, and everything electronic.  The business owned no real \nestate nor had anything to do with construction. \n\nDavid Otwell – H303124 \n18 \n \nThe applicable version of Ark. Code. Ann 11-1-204 at the time of the accident in \nquestion adopted a 20-factor test, to be weighed in determining whether an individual is \nan employee or an independent contractor. The case of Franklin v. Arkansas Kraft, Inc. \n5  Ark.  App.  264,  635  S.W.2d  286  (1982), which was  cited  in Riddell Flying  Serv.  V.  \nCallahan,  90  Ark.  App.  388,  206  S.W.  3d  284  (2005), applied the previous nine  factor \ncommon law test applicable at the time of that decision to make the factual determination \nof whether an individual was an employee or an independent contractor.  This is still found \nto be applicable in regard to the current 20 factor test of Ark. Code Ann 11-1-204.  Franklin \nprovided as follows: \n“There  are  numerous  factors  which  may  be  considered  in  determining \nwhether an injured person is an employee or an independent contractor for \npurposes of workers' compensation coverage.  Obviously, the relative weight \nto  be  given  the  various  factors must be determined by the Commission.”  \nSome of the factors which might be considered, depending on the facts of a \ngiven case, are [referring to the previous nine factors that are omitted here]. \n“These are not all the factors which may be considered in a given case, and \nit may not be necessary in some cases for the Commission to consider all of \nthese factors.  Traditionally, the “right to control” test has been sufficient to \ndecide most cases, although many variations of “control have probably been \nsqueezed into the test.” \nIt appears that the Arkansas legislature looked to IRS regulations for the language \nof  Ark.  Code  Ann  11-1-204 that  was  applicable  at  the  time  of  the  accident to  provide \nguidance to determine if someone was in fact an employee or an independent contractor: \nPeople  such  as  doctors,  dentists,  veterinarians,  lawyers,  accountants, \ncontractors, subcontractors, public stenographers, or auctioneers who are in \nan independent  trade,  business, or  profession, in  which  they  offer  their \nservices  to  the  general  public, are  generally  independent  contractors.  \nHowever, whether these people are independent contractors or employees \ndepends on the facts in each case.  The general rule is that an individual is \nan independent contractor if the payer has the right to control or direct only \nthe result of the work and not what will be done and how it will be done.  See \nhttps://ww.irs.gov/business/small-business-self-employed/independent-\ncontractor-defined. \n\nDavid Otwell – H303124 \n19 \n \nBased  upon  the  above,  the  application  of  the applicable 20  factor  test will be \nreviewed: \n(1) A person for whom a service is performed has the right to require compliance with \ninstructions, including without limitation, when, where, and how a worker is to work:  \nThe  claimant testified  in  his  deposition introduced  into  the  record  that  in  regard  to  the \nrespondent, “He wasn’t an expert and that’s why he hired us.”  The claimant also admitted \nthat the respondent never instructed them on how to paint, hang trusses, or how to roof, \ndue to the fact they were in the construction business.  The respondent admitted to picking \nout paint colors, tiles, and things of that nature.  Here, it is found that the respondent was \nnot instructing the claimant how to perform the building services.  The testimony provided \nthat the respondent was in the business of repairing cell phones, I-Pads, computers, and \nanything electronic, and prior to his computer and electronics business, was a landscaper.  \nHe admitted to working one time as an electrician’s helper but contended that he had no \ncarpentry  skills  or  skills  of  any  kind  that  translated  into  the  construction  of  a  home  or \nresidence  and  this  testimony is  found  to  be believable.  The  claimant admitted  that he \nwas not told when to start or stop work.   \n \n(2) A worker is required to receive training, including without limitation through: \n(A) Working with an experienced employee; \n(B) Corresponding with the person for whom a service is performed; \n(C) Attending meetings; or \n(D) Other training methods: \n\nDavid Otwell – H303124 \n20 \n \nIn the present matter, there was no evidence as to training of any type by the respondent  \nor of  the  claimant working  with  an  experienced  employee of  the  respondent,  just \ntestimony that the claimant was aware that the respondent was very limited in regard to \nthe construction  skills which  he  possessed and  consequently, this  was the  reason  the \nclaimant  was  hired  in  regard  to  the  construction.  In  addition,  the  claimant  admitted  to \nbeing in the construction business since the 90’s and that he started his carpentry training \nas an apprentice. \n(3) A  workers’  services  are  integrated  into  the  business  of  the  person  for  whom  a \nservice is performed and provided in a way that shows the workers’ services are subject \nto the direction and control of the person for whom a service is performed:   \nHere it is clear that the respondent was in the business of computer and electronics repair \nand not in the construction business.  Although the respondent at times did in fact pick up \nitems for the construction project, it is found he was already in town and was attempting \nto  keep  the  claimant  on  the  job  site.  The  claimant  had  been  trained  as  a  carpenter, \nstarting his training and work in the carpentry trade or profession back in the 90’s. \n(4) A worker’s services are required to be performed personally, indicating an interest \nin the methods used and the results:  \nHere,  there’s no  evidence  that claimant  was  required  to  perform  specific  services \npersonally as directed by the respondent.  The claimant did work personally with Thomas \nMoore and another worker from the construction company as they determined what was \nappropriate  in  regard  to  the  construction  project.  The  claimant  and  the  other  workers \nfrom M & A Construction were carpenters or builders with years of experience. \n\nDavid Otwell – H303124 \n21 \n \n(5) A person for whom a service is performed hires, supervises, or pays assistants:  \nHere, the  claimant  admitted  to  having  other  side  jobs,  working  for  another  person \nperforming carpentry, and working as a crew leader for M & A Construction, now named \nCNS, 40 hours a week.  He admitted that he was never paid a dime by the cell phone \ncompany and  there  was no evidence  of  a  direct  payment  from  the  respondent  to  the \nclaimant.  In regard to payments involving the construction project on the property, the \nrespondent stated he paid Thomas Moore (the partner or supervisor of the claimant) on \nSaturday and he had no idea how much the others were paid or how much Thomas Moore \nkept for himself.  Thomas Moore asked if he could hire the claimant. These facts are found \nto be believable.  \n(6) A  continuing  relationship exists between  a  worker  performing  services  and  a \nperson for whom a service is performed:   \nHere there is nothing to show that there was in fact a continuing relationship between the \nclaimant and the respondent except for this specific job and an earlier remodel job that \nhad been completed.  The claimant worked for M & A Construction forty hours a week for \nyears  and  was  still  working  there  at  the  time  of  the accident  and  the hearing.  There \nappears to be no agreement involving a continuing payment from the respondent to the \nclaimant. \n(7) A worker performing a service has hours set by the person for whom the service \nis performed:   \nThe claimant admitted that he was not told when to start or stop work.  It could be argued \nthat the evidence appeared to show that the supervisor of the project was in fact Thomas \nMoore, although Moore could  also  be  considered  a  co-worker.  It  is  also  clear  the \n\nDavid Otwell – H303124 \n22 \n \nrespondent was not a carpenter or contractor and did not provide instructions on how to \nperform the work. \n(8)   A worker is required to devote substantially full time to the business of the person \nfor whom a service is performed, indicating the person for whom a service is performed \nhas control over the amount of time the worker spends working and by implication restricts \nthe worker from obtaining other gainful work:   \nHere  the  claimant  admitted  that  he  worked  a  full-time  40-hour  week  for  M  &  A \nConstruction, now named CNS.  He also admitted to at least one additional side job.  He \nclearly did not work full time for the respondent and even admitted that he was aware that \nthe respondent did not own a construction company. \n(9) (A) The work is performed on the premises of the person for whom a service is \nperformed,  or  the  person  for  whom  a  service  is  performed  has control  over  where  the \nwork takes place.  (B) A person for whom a service is performed has control over where \nthe  work  takes  place  if  the  person  has  the  right  to  (i)  Compel  the  worker  to  travel  a \ndesignated route, (ii) Compel the worker to canvass a territory within a certain time; or (iii) \nRequire  that  the  work  be  done  at  a  specific  place,  especially  if  the  work  could  be \nperformed elsewhere:   \nHere, it is clear the work had to be performed at a set location, because the work involved \nconstructing a building or house and it would be impossible to build it at another location, \nunless  the  construction  was  going  to  involve  building a modular  building,  which  was \nclearly not the case in the present matter.  It is also clear that the claimant was not told \nwhen to  start or  stop work, was never instructed to  canvass  a  territory  within a  certain \ntime and was never instructed to travel a designated route.  \n\nDavid Otwell – H303124 \n23 \n \n(10) A worker is required to perform services in the order or sequence set by the person \nfor whom a service is performed or the person for whom a service is performed retains \nthe right to set the order or sequence:   \nHere, it is found that there is no convincing proof the respondent instructed the claimant \nas to the order or sequence to build the residence or house. \n(11) A worker is required to submit regular or written reports to the person for whom a \nservice is performed:  There is no evidence that any regular reports were submitted, with \nthe exception of invoices submitted by Thomas Moore, the carpenter who possessed a \ncontractor’s license and who arguably was in charge of the project and who recruited the \nclaimant.   \n(12) A worker is paid by the hour, work, or month except when he or she is paid by the \nhour, week, or month, only as a convenient way of paying a lump sum agreed upon as \nthe cost of the job.  Here, Thomas Moore would submit an invoice on Saturday, and the \nrespondent would pay the invoice.  The claimant testified that he thought they were all \npaid  the  same  amount, and  the  respondent  testified  that  he did  not  know  how  the \npayments regarding  the  invoice  were divided  up.  Payments  were  made  based on the \nsubmitted invoices. \n(13) A person for whom a service is performed pays the worker’s business or traveling \nexpenses:  \nThe  testimony  provided  that  the individual Thomas  Moore,  who initially was contacted \nabout  the  building  project  and  who  recruited  the  claimant,  would  submit  an  invoice  on \nSaturday.  The respondent would then pay the invoice, but as stated multiple times above, \nthe respondent was never aware of how the money from the invoice was distributed and \n\nDavid Otwell – H303124 \n24 \n \nthis  is found  to  be believable.  There was  absolutely  no  evidence that  travel  expenses \nwere ever paid. \n(14) A person for whom a service is performed provides significant tools and materials \nto the worker performing services:  The testimony provided that the claimant and Thomas \nMoore, the man who submitted the invoices, would on occasion use M & A Construction \ntools and they kept a M & A vehicle on site, but they tended to primarily use their own \npersonal tools. The claimant and his co-workers used ladders from M & A Construction, \nthe respondent, and their own ladders.  The respondent’s generator and air compressor, \nwhich were  on  site  prior  to  the  construction, were  used  by  both  the  claimant  and  his \ncoworkers.  The respondent did have some scaffolding purchased at a garage sale which \nwas  available  but was  never  used by  the  claimant.   The  respondent admitted  that  he \nwould pick up supplies in town when texted or called.  Here, it is found that the respondent \nonly  provided  a  limited number of  tools,  and that  he primarily only  picked  up  items  as \ninstructed by the claimant or Tom Moore.  Primarily, the claimant used his personal tools. \n(15) A worker invests in the facilities used in performing the services:  Here the facilities \nconsisted of a private residence or building, and this section is found to not be applicable. \nThere is absolutely no evidence the claimant or his co-workers invested in the building \nproject except working and getting paid for their construction work. \n(16) A worker realizes a profit or suffers a loss as a result of the services performed \nthat is in addition to the profit or loss ordinarily realized by an employee:   \nHere,  it  is  found that  the  claimant  was  directly  paid  by  Thomas  Moore, who  could  be \nconsidered the claimant’s partner or supervisor on the construction job, involving  the \nhome or the building of the respondent’s project.  Thomsas Moore would submit an \n\nDavid Otwell – H303124 \n25 \n \ninvoice, the respondent would pay it on a Saturday, and then the money would be divided \nup, based upon the actual work performed and the invoice submitted. \n(17) A worker performs more than de minimis services for more than one (1) person at \nthe same time, unless the persons or firms are part of the same service agreement:   \nThe  claimant  clearly worked for  other  entities in  the  same  general  time  frame, which \nincluded working a forty-hour week for the construction company.   \n(18)  A worker makes his or her services available to the general public on a regular \nand consistent basis:   \nHere, the claimant worked a forty-hour week for M & A Construction and was still working \nfor them at the time of the hearing and even drove the construction company’s trucks to \nthe job site.  The claimant was also working on another side job at or near the time of the \naccident.  The  claimant  is  found  to  have  regular  side  jobs  in  the  carpentry  trade,  after \nputting in a 40 week with M & A Construction. \n(19) A person for whom a service is performed retains the right to discharge the worker, \nand (20) A worker has the right to terminate the relationship with the person for whom a \nservice is performed at any time he or she wishes without incurring liability:  The final two \nfactors will be considered jointly.  Here it is found that the available evidence does not \nmake clear what the result would be in regard to liability, if the claimant terminated his \nwork for the respondent or if the respondent terminated the work of the claimant.  The \nclaimant  was  paid based  on  submitted  invoices and  ultimately the  result  of  the \ndetermination or the discharge of the worker would be based upon the determination of \nwhether the claimant was found to be an employee or an independent contractor. \n\nDavid Otwell – H303124 \n26 \n \nAfter evaluating all twenty factors of Ark. Code Ann 11-1-204, and reviewing the \napplicable case law, it is found that the degree of control is still a key determination, and \nin  the  present  matter, it  is  determined  that  the  evidence  overwhelmingly supports  the \nfinding that the claimant was in fact not an employee of the respondent or his electronic \nrepair  company, but  was  an  independent  contractor  or  possibly  even  an  employee  of \nThomas Moore, who submitted the invoices and divided up the proceeds.  It is clear the \nrespondent’s  business, computer  and electronic  repairs,  had  no connection  to  the \nconstruction business and that construction was clearly not part of the regular business \nof the respondent, who worked in a distinct profession or trade which required a totally \nseparate skill set.  The claimant admitted in his deposition that they were hired due to the \nfact, in referring to the respondent, “He wasn’t an expert and that’s why he hired us.”  The \ntext messages showed the respondent was contacted to pick up supplies for the project \nin town but often had to ask questions as to what to pick up.  Further, although some of \nthe  respondent’s  tools  were  used,  the  claimant  also  admitted  using  some  of  the \nconstruction  company’s tools, and went  on  to  state that  as  a  carpenter,  they  primarily \nused their own tools. The respondent had input as to the result, but clearly did not direct \nhow the work was to be done.   \nBased  upon  the  above  evidence  and  the  applicable  law,  and  after  weighing  the \nevidence  impartially,  without  giving  the  benefit  of  the  doubt  to  either  party,  there  is  no \nalternative but to find that the claimant has failed to satisfy the required burden of proof \nas spelled out by the 20 factors of the Empower Independent Contractors Act and Ark. \nCode Ann. 11- 1- 204, and has failed to prove by a preponderance of the evidence that \nan employee/employer carrier relationship existed at the time of the claimant’s accident.  \n\nDavid Otwell – H303124 \n27 \n \nConsequently, all other issues are moot.  If not already paid, the respondents are ordered \nto pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n        __________________________ \n      JAMES D. KENNEDY   \n      Administrative Law Judge","textLength":49865,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303124 DAVID OTWELL, EMPLOYEE CLAIMANT JERRY LYNN ROBERSON RESPONDENT EMPLOYERS REFERRED INSURANCE CO., CARRIER/TPA RESPONDENT OPINION ON REMAND FILED JULY 29, 2025 The original Hearing before Administrative Law Judge, James D. Kennedy, was held on the 18 ...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["back","fracture","lumbar","thoracic","ankle","wrist"],"fetchedAt":"2026-05-19T22:38:56.796Z"},{"id":"alj-H301367-2025-07-29","awccNumber":"H301367","decisionDate":"2025-07-29","decisionYear":2025,"opinionType":"alj","claimantName":"Derick Madden","employerName":"Welspun Pipes, Inc","title":"MADDEN VS. WELSPUN PIPES, INC. AWCC# H301367 July 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MADDEN_DERICK_H301367_20250729.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MADDEN_DERICK_H301367_20250729.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC No H301367 \n \n \nDERICK MADDEN, EMPLOYEE CLAIMANT \n \nWELSPUN PIPES, INC. EMPLOYER RESPONDENT \n \nGENERAL CASUALTY CO. OF WI./SEDGWICK CLAIMS \nMANAGEMENT, CARRIER/TPA RESPONDENT \n \n \n \nOPINION & ORDER FILED 29 JULY 2025 \n \n \nThis matter was heard before Administrative Law Judge JayO. Howe in Little Rock, \nArkansas, on 23 July 2025.  \n \nThe pro se claimant appeared to object to the dismissal of his claim.  \nMs. Lauren Spencer appeared on behalf of the respondents.  \nSTATEMENT OF THE CASE \n This case relates to an alleged injury on 21 December 2022. The hearing record \nconsists of the transcript and two exhibits. Commission’s Exhibit No 1 consisted of three \npages. It included two USPS mailing receipts and the claimant’s Form C. Respondents’ \nExhibit No 1 consisted of a copy of their Motion to Dismiss and supporting materials that \nwere labeled as attachments “A” through “I.”  \n On 28 February 2023, Ms. Furonda Brasfield filed a Form C on behalf of the \nclaimant. The respondents filed their Motion to Dismiss this claim on 17 April 2025. On 29 \nMay 2025, Ms. Brasfield advised my office that her representation of the claimant in this \nmatter had ended. Then, on 17 June 2025, she filed a motion formally seeking to withdraw \nfrom representing the claimant in this matter. \n The claimant appeared at the hearing and testified that he did not object to Ms. \n\nMADDEN- H301367 \n \n2 \n \nBrasfield being relieved as counsel. An order granting her motion requesting the same was \nfiled on 24 July 2025.  \n The claimant also testified, however, that he did object to the dismissal of his claim. \nHe offered that the basis for the respondent’s motion appeared related to difficulties he had \nexperienced in communicating with his lawyer. The claimant stated that he attempted to \nprovide his attorney with the information necessary to proceed in litigating his claim. He \nrequested some time to discuss his options for moving forward on the claim either on his \nown or with the assistance of another lawyer. \n I explained from the bench that I intended to deny the respondents’ request for a \ndismissal without prejudice. The parties exchanged up-to-date contact information with the \nunderstanding that the claimant would be expected to communicate with the respondents \non any outstanding discovery matters. Should the claimant retain an attorney, he is to \ncommunicate the attorney’s name and contact information immediately to the Commission \nand the respondents. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on that motion. \n \n3. The evidence preponderates that the claimant has not failed to prosecute his \nclaim. \n \n4. The Motion to Dismiss is denied without prejudice. \n \n\nMADDEN- H301367 \n \n3 \n \nORDER \n \n The claimant is again advised that failing to communicate with the respondents may \nlead to a refiling of their motion for a dismissal. Based on the claimant’s testimony that he \nhas attempted to move forward with his claim and that he intends to cooperate with \nongoing discovery efforts in prosecuting his claim, the respondents’ motion is hereby denied \nwithout prejudice.  \n IT IS SO ORDERED. \n      __________________________________ \n      JayO. Howe \n      Administrative Law Judge","textLength":3581,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC No H301367 DERICK MADDEN, EMPLOYEE CLAIMANT WELSPUN PIPES, INC. EMPLOYER RESPONDENT GENERAL CASUALTY CO. OF WI./SEDGWICK CLAIMS MANAGEMENT, CARRIER/TPA RESPONDENT OPINION & ORDER FILED 29 JULY 2025 This matter was heard before Administrative Law Judge JayO. Howe...","outcome":"dismissed","outcomeKeywords":["dismissed:4","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:38:58.969Z"},{"id":"alj-H405442-2025-07-29","awccNumber":"H405442","decisionDate":"2025-07-29","decisionYear":2025,"opinionType":"alj","claimantName":"Jason Willett","employerName":"Zekelman Industries, Inc","title":"WILLETT VS. ZEKELMAN INDUSTRIES, INC. AWCC# H405442 July 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Willett_Jason_H405442_20250729.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Willett_Jason_H405442_20250729.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H405442 \n \nJASON WILLETT, \nEMPLOYEE                                                                                                              CLAIMANT \n \nZEKELMAN INDUSTRIES, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nTRAVELERS CASUALTY INS. CO. AMERICA, \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED JULY 29, 2025 \n \nHearing conducted on Friday, June 27,  2025,  before  the  Arkansas  Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Mr. Jason Willett, Pro Se, of Holcomb, Missouri.  \n \nThe Respondents were represented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non March  25,  2025.    A  hearing  on  the  motion  was  conducted  on June  27,  2025,  in Jonesboro, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as  an entry operator.  The  date  for \nClaimant’s alleged injury was on August 6, 2024. He reported his injury to Respondent/Employer \non the  same  day. Respondents  admitted into  the  record Respondents’  Exhibit 1,  pleadings, \nconsisting of 12 pages. The Commission has admitted into evidence Commission Ex. 1, pleading, \nand U.S. Mail return receipts, consisting of 3 pages, as discussed infra. \nThe record reflects on August 22, 2024, a Form AR-C was filed with the Commission by \nClaimant’s  then-counsel,  Laura  Beth  York, purporting  that  Claimant sustained  work-related \n\nWILLETT, AWCC No. H405442 \n \n2 \n \ninjuries to his neck, clavicle, right shoulder, and right and left lower back. On August 30, 2024, a \nForm  AR-1  was  filed  with  the  Commission  purporting  that  Claimant’s disability specifically \noccurred when he got pinched between the coil and telescoping arms of a machine. On August 30, \n2024,  a  Form  AR-2  was  filed by  Respondents accepted compensability for  the  right  shoulder \nfracture and neck injury. On February 12, 2025, Claimant’s counsel filed a motion to withdraw as \ncounsel. The Full Commission granted the motion on March 4, 2025.  \nOn March  25,  2025, Respondents’ counsel filed  a  Motion  to  Dismiss due  to Claimant’s \nfailure to prosecute his claim. The Claimant was sent, on April 3, 2025, notice of the Motion to \nDismiss, via certified and regular U.S. Mail, to his last known address. The certified motion notice \nwas claimed  by  Claimant as  noted on  the April  14,  2025,  return  receipt. The  Claimant  did not \nrespond to the Motion, in writing, as required. Thus, in accordance with applicable Arkansas law, \nthe Claimant was mailed due and proper legal notice of Respondents’ Motion to Dismiss hearing \ndate  at  his current  address  of  record  via  the  United  States  Postal  Service  (USPS),  First  Class \nCertified  Mail,  Return  Receipt  Requested,  and  regular  First-Class  Mail,  on May 2,  2025.  The \ncertified  notice  was  claimed on May 12, 2025, as  noted  by  the return receipt.  The  hearing  took \nplace on June 27, 2025. And as mentioned before, the Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the June 27, 2025, \nhearing. \n \n\nWILLETT, AWCC No. H405442 \n \n3 \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. The certified hearing notice was \nclaimed on May 12, 2025, per the return postal notice bearing the same date. Thus, I find by the \npreponderance of the evidence that reasonable notice was given to the Claimant.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant filed his Form AR-C on August \n22,  2024.  Since  then,  he  has  failed  to  request  a bona  fide hearing.  Therefore,  I  do  find  by  the \npreponderance of the evidence that Claimant has failed to prosecute his claim by failing to request \na hearing. Thus, Respondents’ Motion to Dismiss should be granted. \n \n \n \n\nWILLETT, AWCC No. H405442 \n \n4 \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5831,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H405442 JASON WILLETT, EMPLOYEE CLAIMANT ZEKELMAN INDUSTRIES, INC., EMPLOYER RESPONDENT TRAVELERS CASUALTY INS. CO. AMERICA, CARRIER/TPA RESPONDENT OPINION FILED JULY 29, 2025 Hearing conducted on Friday, June 27, 2025, before the Arkansas Workers’ Compensati...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["neck","shoulder","back","fracture"],"fetchedAt":"2026-05-19T22:39:01.115Z"},{"id":"alj-H208517-2025-07-28","awccNumber":"H208517","decisionDate":"2025-07-28","decisionYear":2025,"opinionType":"alj","claimantName":"Christopher Jackson","employerName":"Abb Motors & Mechanical, Inc","title":"JACKSON VS. ABB MOTORS & MECHANICAL, INC. AWCC# H208517 July 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JACKSON_CHRISTOPHER_H208517_20250728.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACKSON_CHRISTOPHER_H208517_20250728.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H208517 \n \nCHRISTOPHER JACKSON, Employee CLAIMANT \n \nABB MOTORS & MECHANICAL, INC., Employer RESPONDENT \n \nACE AMERICAN INS. CO., Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 28, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents  represented  by R.  SCOT  ZUERKER,  Attorney  at  Law, Fort  Smith, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n Claimant  suffered  an  injury  which  respondent  accepted  as  compensable  on \nNovember 28, 2022. On December 7, 2022, Form AR-C was filed on claimant’s behalf \nby his attorney, Jarid Kinder. There has been no activity since the AR-C filing and as a \nresult,  respondent  filed  this  Motion  to  Dismiss  on  May  30,  2025.  A  hearing  was \nscheduled on the respondent’s Motion to Dismiss for July 14, 2025, and notice of the \nhearing was sent to claimant by certified mail and delivered on June 14, 2025. On June \n9,  2025, an  email  was  sent  by  claimant’s  attorney  indicating  that  claimant  had  no \n\nJackson – H208517 \n \n-2- \nobjection to the Motion to Dismiss and that he waived his appearance at the hearing. As \na result, neither claimant nor his attorney appeared at the hearing. \n After my  review  of  respondent’s motion,  claimant’s  statement  that  he  has  no \nobjection  to  the  granting  of  the  motion,  and  all  other  matters  properly  before  the \nCommission,  I  find  that  respondent’s  Motion  to  Dismiss  should  be  and  hereby  is \ngranted.  This  dismissal  is  pursuant  to  Commission  Rule  099.13  and  it  is  without \nprejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":1961,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H208517 CHRISTOPHER JACKSON, Employee CLAIMANT ABB MOTORS & MECHANICAL, INC., Employer RESPONDENT ACE AMERICAN INS. CO., Carrier RESPONDENT OPINION FILED JULY 28, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County,...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:38:50.394Z"},{"id":"alj-H404324-2025-07-28","awccNumber":"H404324","decisionDate":"2025-07-28","decisionYear":2025,"opinionType":"alj","claimantName":"Nicole Richardson","employerName":"Dollar General Store","title":"RICHARDSON VS. DOLLAR GENERAL STORE AWCC# H404324 July 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RICHARDSON_NICOLE_H404324_20250728.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RICHARDSON_NICOLE_H404324_20250728.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404324 \n \nNICOLE RICHARDSON, Employee CLAIMANT \n \nDOLLAR GENERAL STORE, Employer RESPONDENT \n \nDOLGENCORP, LLC, Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 28, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant unrepresented and appearing pro se. \n \nRespondents represented by DAVID C. JONES, Attorney at Law, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On  June  28,  2024,  claimant  was  injured  during  a  motor  vehicle  accident  while \nworking  for  respondent.  Respondent  accepted  this  claim  as  a  medical-only  claim.  On \nJuly  30,  2024,  Attorney  Laura  Beth  York  filed  Form  AR-C  on  behalf  of  the  claimant. \nSome  discovery  was  completed  by  the  parties  before  Attorney  York  filed  a  Motion  to \nWithdraw on December 2, 2024. On December 16, 2024, the Full Commission granted \nAttorney York’s Motion to Withdraw as Counsel.  \n No  further  action  was  taken  in  this  claim  until  respondent  filed  its  Motion  to \nDismiss on April 23, 2025. A hearing was scheduled on respondent’s motion for July 14, \n2025. Notice of the hearing was sent to claimant by certified mail and was delivered on \n\nRichardson - H404324 \n \n-2- \nJune  10,  2025.  Claimant  did  not  appear  at  the  hearing  and  has  not  responded  to \nrespondent’s motion. \n After my review of respondent’s motion, the claimant’s failure to appear at the \nhearing or respond to respondent’s motion, I find that respondent’s motion to dismiss \nthis  claim  should  be  and  hereby  is  granted.  This  dismissal  is  pursuant  to  Commission \nRule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":1952,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404324 NICOLE RICHARDSON, Employee CLAIMANT DOLLAR GENERAL STORE, Employer RESPONDENT DOLGENCORP, LLC, Carrier RESPONDENT OPINION FILED JULY 28, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Claima...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:38:52.518Z"},{"id":"alj-H405369-2025-07-28","awccNumber":"H405369","decisionDate":"2025-07-28","decisionYear":2025,"opinionType":"alj","claimantName":"Jorge Xol","employerName":"Bo Tech Maintenance","title":"XOL VS. BO TECH MAINTENANCE AWCC# H405369 July 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/XOL_JORGE_H405369_20250728.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"XOL_JORGE_H405369_20250728.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H405369 \n \n \nJORGE TENI XOL, \nEMPLOYEE                                                                                                              CLAIMANT \n \nBO TECH MAINTENANCE, \nEMPLOYER                                                                                                         RESPONDENT  \n \nTECHNOLOGY INS. CO./ \nAMTRUST NORTH AMERICA, \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                     \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED JULY 28, 2025 \n \nHearing conducted on Thursday, July  24,  2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ)  Mike  Pickens,  in Texarkana, \nMiller County, Arkansas. \n \nThe  claimant,  Mr. Jorge  Teni  Xol,  pro  se,  of Texarkana,  Bowie County, Texas, failed  and/or \nrefused to appear at the hearing.  \n \nThe  respondent was represented  by  the  Honorable William  C.  (Bill)  Frye, North Little  Rock, \nPulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Thursday, July 24, 2025, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark. Code  Ann. §  11-9-702(a)(4)  (2025 Lexis \nReplacement) and Commission Rule 099.13 (2025 Lexis Replacement). \n       On March 6, 2025, the respondents filed a letter motion to dismiss without prejudice for failure \nto  prosecute  (MTD) with  the  Commission.  (Respondents’ Exhibit 1). In  compliance  with  the \napplicable law the claimant was provided due and legal notice of the respondents’ MTD as well as \nthe  date,  time,  and  location  of  the  subject  hearing,  which  he  received  on April  14,  2025. \n\nJorge Teni Xol, AWCC No. H405369 \n2 \n \n(Commission Exhibit 1). The claimant did not respond to the respondents’ motion in any way, and \nhe failed and/or refused to appear at the subject hearing. \n        The  claimant  sustained  an admittedly compensable  injury  to  his  finger  for  which  the \nrespondents  paid  both  medical  and  indemnity  benefits.  The  respondents  last  paid  indemnity \nbenefits in this claim on or about November 27, 2024, and last paid medical benefits for physical \ntherapy  (PT)  treatment through the date the claimant’s physical therapist released him from PT \ntreatment on December 4, 2024. (Hearing Transcript; Respondents’ Exhibit 2). There exists no \nevidence  the  claimant  has  required,  sought, or  received  any  additional  medical  treatment  after \nDecember 4, 2024. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ MTD. \nRather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the \nevidence introduced at the hearing and contained in the record conclusively reveals the claimant \nhas failed and/or refused to either request a hearing within the last six (6) months, and he has taken \nno steps whatsoever to prosecute this claim. \n        Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the applicable  law, the \nrepresentations  of credible counsel, and  other relevant matters  of  record,  I  hereby  make  the \nfollowing: \n\nJorge Teni Xol, AWCC No. H405369 \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having been  mailed due  and  legal  notice  of the respondents’ letter MTD without \nprejudice filed with the Commission on April 10, 2025, as well as notice of the date, time, \nand place of the subject hearing, the claimant failed and/or refused to respond in any way \nto the respondents’ MTD, and he failed and/or refused to appear at the hearing. Therefore, \nthe claimant is deemed to have waived his right to a hearing on the respondents’ MTD. \n \n3. The claimant has not requested a hearing within the last six (6) months, and he has failed \nand/or refused to prosecute this claim. \n \n4. The respondents’ letter MTD without prejudice filed April 10, 2025, should be and hereby \nis GRANTED; and this claim is dismissed without prejudice to its refiling pursuant to the \ndeadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and Commission \nRule 099.13. \n \n        This opinion shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nJorge Teni Xol, AWCC No. H405369 \n4","textLength":5714,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H405369 JORGE TENI XOL, EMPLOYEE CLAIMANT BO TECH MAINTENANCE, EMPLOYER RESPONDENT TECHNOLOGY INS. CO./ AMTRUST NORTH AMERICA, CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED JULY 28, 2025","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:38:54.591Z"},{"id":"alj-H406809-2025-07-25","awccNumber":"H406809","decisionDate":"2025-07-25","decisionYear":2025,"opinionType":"alj","claimantName":"Garrett Greene","employerName":"Crittenden County","title":"GREENE VS. CRITTENDEN COUNTY AWCC# H406809 July 25, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Greene_Garrett_H406809_20250725.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Greene_Garrett_H406809_20250725.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H406809 \n \n \nGARRETT L. GREENE, EMPLOYEE CLAIMANT \n \nCRITTENDEN COUNTY, ARKANSAS, \nSELF-INSURED EMPLOYER RESPONDENT \n \nAAC RISK MGMT. SVCS., \nTHIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED JULY 25, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on July  25,  2025, in \nForrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Melissa  Wood,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on July  25,  2025, in \nForrest  City,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted into evidence were Commission’s Exhibit 1 and Respondents’ Exhibit 1, \nforms, pleadings, reports, and correspondence related to this claim, consisting of \n15 and  14  pages,  respectively.   See Ark.  Code  Ann. § 11-9-705(a)(1)  (Repl. \n2012)(Commission  must  “conduct  the  hearing  .  .  .  in  a  manner  which  best \nascertains the rights of the parties”). \n\nGREENE – H406809 \n \n2 \n \n The record shows the following procedural history: \n On October 17, 2024, Claimant filed a Form AR-C.  He did not check any \nboxes to denote what type(s) of initial or additional benefits he was requesting; but \nhe alleged that the following occurred on October 9, 2024:  “conducting exercise \nduring S.R.T. tryouts while lifting an oversize tire, a pop was felt in right knee and \nfollowed with immediate pain.”  No hearing request accompanied this filing.  The \nForm  AR-1,  filed  on  October  22,  2024,  described  the  activity  in  question  as \n“Special Response Team tryouts.”  Also on October 22, 2024, Respondents filed \na Form AR-2, stating that they were accepting the claim as a medical-only one. \n Also on  October  17,  2024, Claimant requested  a  one-time  change  of \nphysician from the Commission.  Respondents on October 22, 2024, informed the \nCommission that they did not object to this.  In an Order dated October 28, 2024, \nthe  Administrator  of  the  Medical  Cost  Containment  Division  of  the  Commission \ngranted  the  request,  changing  Claimant’s  authorized  treating  physician  from \nCoast to Coast Medical Clinic to Michael Hood, M.D., and scheduling Claimant an \nappointment with Hood for November 8, 2024. \n The record reflects that nothing further took place on the claim until May 7, \n2025.  On that date, Respondents filed the instant motion, asking for dismissal of \nthe  claim under Ark.  Code  Ann. § 11-9-702  (Repl.  2012)  and AWCC  R.  099.13 \nbecause  “Claimant  has  not  sought  any  type  of  bona  fide  hearing  before  the \nWorkers’  Compensation  Commission over  the  last  six  months.”  The  file  was \n\nGREENE – H406809 \n \n3 \n \nassigned to me on May 8, 2025; and on that same date, my office wrote Claimant, \nasking  for  a  response  to  the  motion within  20  days.   The  letter  was  sent  by  first \nclass and certified mail to the West Memphis, Arkansas address for him listed in \nthe file and on his Form AR-C.  The United States Postal Service could not verify \nwhether the certified letter was claimed; but the first-class letter was not returned.  \nRegardless, no response from Claimant to the motion was forthcoming.  On May \n29, 2025, a hearing on the Motion to Dismiss was scheduled for July 25, 2025, at \n12:00 p.m. at the St. Francis County Courthouse in Forrest City.  The notice was \nsent  to  Claimant  via  first-class  and  certified mail to the  same  address as  before.  \nIn this instance, someone with an illegible signature claimed the certified letter on \nJune 2, 2025; and the first-class letter was, again, not returned. \n The hearing on the Motion to Dismiss proceeded as scheduled before me.  \nAgain,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents appeared \nthrough counsel and argued for dismissal under the foregoing authority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n\nGREENE – H406809 \n \n4 \n \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for additional \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nGREENE – H406809 \n \n5 \n \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the July 25, 2025, hearing to argue against its \ndismissal)  since the filing  of  his Form  AR-C and  change-of-physician  request on \nOctober 17, 2024.  Thus, the evidence preponderates that dismissal is warranted \nunder  Rule  13.  Because  of  this  finding,  the  question  concerning  whether \ndismissal is warranted under § 11-90-702 is moot and will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nGREENE – H406809 \n \n6 \n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7686,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H406809 GARRETT L. GREENE, EMPLOYEE CLAIMANT CRITTENDEN COUNTY, ARKANSAS, SELF-INSURED EMPLOYER RESPONDENT AAC RISK MGMT. SVCS., THIRD-PARTY ADM’R RESPONDENT OPINION FILED JULY 25, 2025 Hearing before Administrative Law Judge O. Milton Fine II on July 25, 202...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:38:48.331Z"},{"id":"alj-H401022-2025-07-23","awccNumber":"H401022","decisionDate":"2025-07-23","decisionYear":2025,"opinionType":"alj","claimantName":"Michael Petz","employerName":"Hytrol Conveyor Company, Inc","title":"PETZ VS. HYTROL CONVEYOR COMPANY, INC. AWCC# H401022 July 23, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Petz_Michael_H401022_20250723.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Petz_Michael_H401022_20250723.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H401022 \n \nMICHAEL PETZ, \nEMPLOYEE                                                                                                              CLAIMANT \n \nHYTROL CONVEYOR COMPANY, INC., \nSELF-EMPLOYER                                                                                             RESPONDENT  \n \nCCMSI, \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED JULY 23 , 2025 \n \nHearing  conducted  on  Friday,  June  13,  2025,  before  the  Arkansas  Workers’  Compensation  \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ)  Steven  Porch,  in  Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Mr. Michael L. Petz, Pro Se, of Jonesboro, Arkansas.  \n \nThe Respondents were represented by the Honorable S. Shane Baker, Jonesboro, Arkansas. \n \n \nI.  BACKGROUND \nThis matter comes before the Commission on a Motion to Dismiss filed by Respondents \non  February  27,  2025.  No  testimony  was  taken  in  the  case.  Claimant,  who  according  to  \nCommission records is pro se, failed to appear at the hearing. Respondents admitted Respondents \nExhibit  1,  a  written  Motion  to  Dismiss  with  a  Form  AR-C  attachment,  consisting  of  3 pages, \nRespondents’  Exhibit  2,  letter  from  Claimant  and  payment  ledger,  consisting  of  2  pages.  Also, \nadmitted  into  evidence  was  Commission  Exhibit  1,  notice,  correspondence, and certified  return  \nreceipts,  consisting  of  10 pages;  and  Form  AR-1  and  Form  AR-2  are  also  blue-backed  into  the  \nrecord, as discussed infra. \nThe  Claimant  worked  for  Respondent/Employer  as  a  machinist and  allegedly  injured  \nhimself on October 23, 2023. The record reflects that on February 9, 2024, a Form AR-C was filed \n\nPETZ, AWCC No. H401022 \n \n2 \n \nwith the Commission, purporting that Claimant was lifting a roller with another employee, when \nthe  other  employee  dropped  the  roller  causing  a  jerking  motion  that  injured  Claimant’s  right  \nshoulder. On February 20, 2024, a Form AR-1 was filed with the Commission purporting that this \nincident  was  reported  to  Respondent/Employer on October  27,  2023. On  February  20,  2024, a \nForm AR-2 was filed by Respondents accepting compensability of the right shoulder injury.  \nThe  Respondents  next  filed  a  Motion  to  Dismiss  on  February  27,  2025,  requesting  this  \nclaim be dismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. \nMail, notice of the Motion to Dismiss from my office on March 6, 2025, to his last known address. \nThe certified notice was claimed by Claimant on March 8, 2025. Claimant responded to the notice \nin writing on March 31, 2025, but did not request a hearing on his claim. Rather he mentions in \nhis letter that he spoke to the Commission’s legal advisers and was advised that he had one year \nafter  the  last  payment  of  benefits  to  file  his  claim.  But  again, he  did  not  request  a  full hearing. \nThus, in accordance with applicable Arkansas law, the Claimant was mailed due and proper legal \nnotice  of  Respondents’  Motion  to  Dismiss  hearing  date  at  his  current  address  of  record  via  the  \nUnited States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and \nregular  First-Class  Mail,  on  April  16,  2025.  The  certified  hearing  notice  was  claimed  by  the  \nClaimant on April 21, 2025. The hearing took place on June 13, 2025. The Claimant did not show \nup to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-  704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n\nPETZ, AWCC No. H401022 \n \n3 \n \n \n2. The Claimant and Respondents both had reasonable notice of the June 13, 2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to make a bona fide request for a hearing in more than six months pursuant \nto Ark. Code Ann. § 11-9-  702(a)(4).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.    \n \n  \nIII.  DISCUSSION  \nUnder Ark. Code Ann. § 11-9-  702(a)(4) “If within six (6) months after the filing of a claim \nfor compensation no bona fide request for a hearing has been made with respect to the claim, the \nclaim  may,  upon  motion  and  after  hearing,  be  dismissed  without  prejudice...”.  Consistent  with \nArk.  Code  Ann. §  11-9-  702(a)(4),  the  Commission  scheduled  and  conducted  a  hearing,  with  \nreasonable notice to the Claimant, on Respondents’ Motion to Dismiss hearing date. The certified \nhearing notice was claimed on April 21, 2025, per the return postal notice bearing the same date. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \nArk. Code Ann. § 11-9-  702(a)(4) allows the Commission, upon meritorious application, to \ndismiss an action pending before it due to a want of a bona fide request for a hearing within six \nmonths.  The  Claimant  filed  his  Form  AR-C  on  February  9,  2024.  Since  then,  he  has  failed  to  \nrequest  a  bona  fide  hearing.  Therefore,  I  do  find  by  the  preponderance  of  the  evidence  that  \nClaimant  has  failed  to  prosecute  his  claim  by  failing  to  request  a  bona  fide  hearing  within  six  \nmonths. Thus, Respondents’ Motion to Dismiss should be granted. \n \n \n\nPETZ, AWCC No. H401022 \n \n4 \n \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above,  Respondents’  \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6046,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H401022 MICHAEL PETZ, EMPLOYEE CLAIMANT HYTROL CONVEYOR COMPANY, INC., SELF-EMPLOYER RESPONDENT CCMSI, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JULY 23 , 2025 Hearing conducted on Friday, June 13, 2025, before the Arkansas Workers’ Compensation Comm...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:38:46.265Z"},{"id":"alj-H400768-2025-07-22","awccNumber":"H400768","decisionDate":"2025-07-22","decisionYear":2025,"opinionType":"alj","claimantName":"Carol Diaz","employerName":"Envoy Air, Inc","title":"DIAZ VS. ENVOY AIR, INC. AWCC# H400768 July 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DIAZ_CAROL_H400768_20250722.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DIAZ_CAROL_H400768_20250722.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                                CLAIM NO.:H400768 \n \nCAROL DIAZ, EMPLOYEE  CLAIMANT \n \nENVOY AIR, INC.,   \nEMPLOYER                                                                                                              RESPONDENT    \n                                        \nAIU INSURANCE COMPANY/SEDGWICK  \nCLAIMS MANAGEMENT SERVICES, INC., \nCARRIER/TPA                                                                                                         RESPONDENT  \n \n \nOPINION FILED JULY 22, 2025 \n             \nHearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant represented  by the Honorable GREGORY R.  GILES, Attorney  at  Law, Texarkana, \nArkansas. \n \nRespondents represented by the Honorable RANDY P. MURPHY, Attorney at Law, Little Rock, \nArkansas. \n \n \n    STATEMENT OF THE CASE \nOn April 23, 2025, the above-captioned case came on for a hearing before the Arkansas \nWorkers’  Compensation  Commission in Little  Rock,  Arkansas.   A pre-hearing  telephone \nconference was held in this matter on March 19, 2025.  A Pre-hearing Order was entered on that \nsame day.  The parties’ pre-hearing information filings have been made a part of the record without \nobjection; and thus, been marked accordingly, as Commission’s Exhibit No. 1. \n During the pre-hearing telephone conference, and/or at the hearing, the parties agreed to \nthe following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n2. The employee-employer-insurance carrier relationship existed among the parties, on  \n\nDiaz – H400768  \n2 \n \nJanuary 16, 2024, at which time, the Claimant alleges to have sustained compensable \ninjuries to her back and left leg during and in the course and scope of her employment \nwith the respondent-employer, Envoy Air. \n \n3. The Claimant’s average weekly wage on the day of her alleged work-related incident \nwas  $808.98.   Her weekly compensation rate is $539.00, for temporary total \ndisability/TTD  compensation, and $404.00\n1\n for  permanent  partial  disability/PPD \nbenefits. \n \n4. The Respondents have controverted this claim in its entirety.     \n    \n5. All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nAct. \n \n During the  pre-hearing  telephone conference, the  parties  agreed  to  litigate  the  following \nissues:   \n1. Whether  the Claimant  sustained  compensable  injuries  to her back and  left  leg on \nJanuary 16, 2024, by a specific incident injury, or whether she sustained a gradual onset \ninjury. \n  \n2. Whether the Claimant is entitled to reasonable and necessary medical treatment for her \nalleged injuries, both of record and future medical treatment. \n \n3. Whether the Claimant is entitled to TTD compensation from January 17, 2024, through \nMarch 30, 2024, excluding the time she worked in January.  Specifically, the Claimant \nworked her entire shifts on January 23, 2024, January 24, and January 25.  However, \nthe Claimant worked only one hour on January 29. \n \n4. Whether the Claimant is entitled to a 10% impairment rating for her alleged back injury. \n \n5. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee.   \n \n The Claimant’s and Respondents’ contentions are set out in their respective response to the \npre-hearing questionnaire and those made at the beginning of the hearing.  Said contentions are as \nfollows: \n Claimant: The  Claimant contends  that  she  sustained  compensable  injuries  to the  left  leg \n \n1\n There  is  a  clerical  error  in  the hearing transcript  at  page  5 concerning the Claimant’s correct  weekly \ncompensation rate for TTD compensation.  Her correct compensation rate is $404.00, instead of the erroneously listed \namount of $040.00.     \n\nDiaz – H400768  \n3 \n \nand back on January 16, 2024.  The Claimant contends that the medical treatment received to date \nhas been reasonable, necessary, and related such that the Respondents should be ordered to pay \nfor same.  The Claimant contends entitlement to temporary total and/or temporary partial disability \nbenefits  from  January  17,  2024,  through  and  until  March  30,  2024.  The  Claimant  contends \nentitlement  to  a  permanent  impairment  rating  of  10%  to  the  body  as  a  whole.    The  Claimant \ncontends that the Respondents should be ordered to pay a controverted attorney’s fee as provided \nby law.   \n At the beginning of the hearing, the Claimant’s attorney changed his contentions:  \n The Claimant contends that she sustained a compensable injury to her back by a gradual \nonset injury or a specific  incident.   It  is noted  that  the  medical  evidence  here reflects that the \nClaimant had some symptoms prior to the specific date and time of January 16, 2024.  However, \nshe did not miss any time from work until the event of January 16.  She has the argument of at \nleast some gradual symptoms occurring.  However, they did not allege that at the time.   \n The Claimant contends that the specific event that created the need for the surgery that she \nhad and the time that she missed work is due to the specific event.   \n However, the  Claimant  further  contends  that in  terms  of  a  gradual  onset  injury  prior  to \nJanuary 16, 2024, there may have been an injury.  She did not miss any time off work for it.  But \nin terms of the timeframe of what she is contending created the time off work, and the time that \ncreated the impairment rating, we contend was the event of January 16, 2024.\n2\n   \n The Claimant completed the Form N, and in that document, on page 25 of the Claimant’s \nTable of Contents, she outlines a statement that references the timeframe prior to the January 16 \nevent in terms of her symptoms and complaints.  However, the medical records reference that those \n \n \n2\n Counsel for the Claimant inadvertently stated the incorrect alleged specific incident date as being January 14, \n2024.  Instead, the correct alleged specific incident date is January 16. \n\nDiaz – H400768  \n4 \n \noccurred because of the nature of her work.  Therefore, to the extent that a compensable injury can \noccur over time or by specific incident, the Claimant contends that both in either/or circumstance \ncaused her injury.              \nRespondents:   The Respondents contend that the Claimant did not sustain a compensable \ninjury within the course and scope of her employment. \nAt the beginning of the hearing, the Respondents’ attorney contended that they believe the \ncredible  evidence, the  medical  records,  and  in  particular  the  testimony  of  Ms.  Carol  Diaz will \nsupport  a  gradual  onset-type  of  injury  that  had  developed  gradually  over  a  period  of  time.  \nRespondents contend that they have dates of when the gradual onset injury started; and they have \nmedical  records  supporting  that  it  is  a  gradual  onset-type  injury  for  this  back  claim, and  not  a \nspecific incident injury.  \n                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nFrom a review of the record as a whole, to include medical reports, documentary evidence, \nand other matters properly before the Commission, and having had an opportunity to listen to the \ntestimony of the Claimant and observe her demeanor, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n      2.      I hereby accept the above-mentioned proposed stipulations as fact. \n            3.      The Claimant proved by a preponderance of the credible evidence that she sustained     \n                     compensable injuries to her back and left leg due to a specific incident occurring on \n                     January 16, 2024.  The alternative assertion of a gradual onset injury has thus been  \n          rendered moot.  \n                      \n           4.      The Claimant proved by a preponderance of the credible evidence that all the medical  \n         treatment of record was reasonably necessary in connection with the injury received     \n         by her on January 16, 2024.  No future medical treatment has been recommended for  \n         the Claimant’s compensable injuries.    \n \n\nDiaz – H400768  \n5 \n \n5.       The Claimant proved by a preponderance of the evidence her entitlement to temporary  \n         total disability compensation beginning on January 17, 2024, and continuing through  \n         March 30, 2024, excluding the days she worked on January 23, 2024, and through          \n         continuing through January 25; and the one hour that she worked on January 29.              \n \n6.     The Claimant proved by a preponderance of the evidence that she sustained a 10% \n        permanent anatomical impairment to the body as a whole due to her compensable back        \n        injury of January 16, 2024. \n \n7.    The parties stipulated that the Respondents have controverted this claim in its entirety.       \n       Therefore, the Claimant’s attorney is entitled to a controverted attorney’s fee on the  \n        indemnity benefits awarded to the Claimant herein.  \n                    \nSummary of Evidence \n The entire record is made up of the April 23, 2025, hearing transcript, which includes the \ndocumentary  evidence  of Commission’s Exhibit No.  1; Claimant’s Exhibit No.  1,  which  is  a \nMedical  Exhibit  Abstract  consisting  of six pages; and Claimant’s Exhibit No. 2 comprising 70 \nnumbered pages of medical records. The Claimant, Ms. Carol Diaz, was the only witness to testify \nduring the hearing. \n                                        HEARING TESTIMONY \n  \nMs. Carol Diaz/the Claimant \n As  of  the  date  of  the  hearing,  the Claimant was 52  years  of  age.  Although  born  in  the \nUnited  States, the  Claimant lived in Chile  for  a  significant  period of  time,  which  is  where she \nreceived all of her education.  The Claimant graduated from high school and later earned a degree \nin  Business  Administration while  living  there.  In  2018,  the  Claimant,  her  husband,  and their \nchildren returned to the United States.  The Claimant described her English fluency to be at 80%, \nalthough she testified that her ability to understand English surpasses her speaking ability.  She \nconfirmed that she was comfortable proceeding without an interpreter.   \n\nDiaz – H400768  \n6 \n \n The  Claimant began her  employment with the  respondent-employer, Envoy  Air,  as an \ninventory control specialist on April 20, 2020.  Her job title and description remained unchanged \nas of January 16, 2024.   Her standard work schedule was from 6:00 a.m. until 2:00 p.m., Sunday \nthrough Thursday.  According to the Claimant, Envoy Air is a passenger airline company.   \n She provided the  following description  of  her daily employment duties as  an  inventory \nspecialist: \nA I do shipping/receiving.  I work on the computer.  I get parts for their place \nso  they  can  do  their  job at  nighttime.    I  help  mechanics  with  the  tools.    I  get \neverything ready for them to have the work done every night. \n \nQ What kind of lifting and carrying would you have to be responsible for? \n \nA A lot of lifting, like – – heavy parts like tires, brakes, blades.  Like also we \nhave from little parts to big parts which I have to be – I have to get them ready to \ngo out for repair. \n \nQ What would be generally like the heaviest thing you would have to lift? \n \nA Every day?  Main tires, nose tires that go – – \n \nQ How much would something like that – – \n \nA Main (sic) tires about 110, and nose tires are about 68 pounds.  There’s some \nheavy parts, I don’t remember the name, but they usually weigh over 50 pounds.  A \nbrake is 150 pounds.  Blades are 300 pounds, and, of course, I didn’t have to pick \nup that myself, just me; I always request help when it’s over 300 pounds.   And \nthat’s basically what I do every day at work. \n I ship out everything that needs to go out for repair.  And in the last couple \nmonths that year before, I was working by myself a lot of times so I needed to have \neverything done so they can go out for repair. \n \nWith respect to the Claimant’s alleged work injury of January 16, she testified that it is the \nday that she will never forget because it was on a Tuesday, after a snowstorm.  According to the \nClaimant, she was picking up a box from the floor and felt a very sharp pain in her leg, and she \nwas unable to move.  The Claimant explained, “...  It was – –  it was a different pain than I had \nbefore.”  In fact, the Claimant testified, “I never felt it before.” According to the Claimant, the box \n\nDiaz – H400768  \n7 \n \nshe was trying to lift weighed approximately 50 pounds.  The Claimant further explained that after \npicking up the box, she felt a sharp pain like a burning sensation.  She denied having experienced \nthat type  of  burning  sensation previously.   The  Claimant essentially testified  that  the pain  was \ncompletely different because she never had discomfort in her legs before.  \nThe  Claimant  testified  that  her supervisor,  John  Thurber, saw what  happened.   Per  the \nClaimant, Mr.  Thurber was  walking  in  front  of  her when  the  incident occurred.   The  Claimant \nexplained that  she  did  not  say  anything  to  anyone because  her supervisor was present for  the \nincident.  However, she testified  that Mr. Thurber  said to her, “Carol, you better see a doctor.”  \nAccording to the Claimant, at that time, she replied, “Okay.  I will do that.”  \nShe admitted that this was not the first time she had experienced discomfort in her left leg.  \nThe Claimant testified that she first started having pain in her left leg, a couple of months before \nthis happened, for which she sought attention.  At that time, the Claimant testified that she was not \n100% well; and she had some discomfort in her leg that was starting to bother her.  \nUnder  further  direct  examination, the Claimant fully explained the exact location of  the \ndiscomfort in her leg.  Specifically, the Claimant testified: “My left foot, yes.  I’m sorry.  It’s my \nleft foot, my left leg, my calf, my -- the whole leg.  I tried to explain (sic) the doctor that was what \nI was feeling.” The Claimant confirmed that she sought medical treatment from her family \nphysician, Dr. Stone.  She agreed that she saw Dr. Stone on December 15, 2023.  The Claimant \nconfirmed that she provided a history to Dr. Stone of having the symptoms for the last two weeks, \nwhich would have been the first part of December 2023.  She admitted that she saw Dr. Stone on \ntwo other occasions before January 16, 2024.   \n According  to  the  Claimant,  Dr.  Stone  provided  her  with conservative treatment  that \nincluded an injection on her leg, near to her hip, on the left side.  She confirmed that the injection \n\nDiaz – H400768  \n8 \n \nprovided some temporary relief for her leg pain.  Dr. Stone also prescribed painkillers that worked \nfor a few days, and she believed her symptoms had resolved.  The Claimant admitted to seeing Dr. \nStone on January 2, 2024.  However, she denied having missed any work during this time.  She \nconfirmed that she told Dr. Stone that she believed her job had created this problem.  The Claimant \ndenied experiencing any back problems when she saw Dr. Stone in December and the period before \nJanuary 16, 2024.  She continued to deny any back pain even after the January 16 incident.  The \nClaimant consistently attributed all her discomfort to her left leg.   \n She  denied any  prior medical treatment for  any type  of back related problems.    The \nClaimant  admitted she  completed  her shift  on  January  16 following her  lifting  incident.    She \nconfirmed that she returned to work the next day.  However, upon arrival for work on January 17, \nthe Claimant was unable to move freely due to pain.  The Claimant contacted her supervisor, John \nThurber, who was absent that day, to report severe pain and her need to seek medical attention.  \nDue to the Claimant’s primary care physician’s office being closed, she presented to Baptist Health \nUrgent Care.  They provided the Claimant with an off work note for January 17 through January \n23.  She turned the note in to Mr. Thurber via email.  The Claimant was able to see her  family \ndoctor on January 19.  Dr. Stone reviewed some home stretching exercises with her for her leg.  \nwho recommended home exercise stretches for  her  leg.   Also,  the  Claimant  testified  that he \nprescribed some medications for her symptoms.   \nThe  Claimant confirmed that  Dr.  Stone gave her another note  allowing  her to  return  to \nwork with certain physical restrictions.  She admitted that she worked on January 23, 24 and 25. \nShe acknowledged that her employer agreed to accommodate her restrictions.  She denied that her \nsymptoms got any better during that period.  According to the Claimant, she inquired about getting \nhelp through workers’ compensation.  On Wednesday, January 23, the coordinator for workers’ \n\nDiaz – H400768  \n9 \n \ncompensation benefits came and told her she needed to fill out a form to put in a claim regarding \nher workplace incident.   \nShe testified that Shauna Schultz is the coordinator for workers’ comp. benefits for Envoy \nAir.  The Claimant testified that she completed the necessary forms given to her by Ms. Schultz.  \nShe confirmed that she was given a work excuse for Monday, January 29, 2024.  However, the \nClaimant went to work on January 29, but they sent her home because he was in a lot of pain.  She \nadmitted  to going  back to  Baptist  Health  Urgent  Care  again.    According  to  the  Claimant,  her \nhusband took her off work excuse to the office and gave it to her supervisor. \n The Claimant confirmed that she saw her family doctor on February 1.  At that point, the \nClaimant had health insurance.  She continued to follow under the care of Dr. Stone.  He took the \nClaimant off work through February 12 and recommended an MRI.  \nAfter the Claimant underwent the MRI, she was referred to a neurosurgeon, Dr. Youssef.  \nShe confirmed that after she worked one hour on January 29, she did not work again until after her \nsurgery and recovery.  At that point, the Claimant returned to work for Envoy Air. \nShe  admitted  that  she  went  to  physical  therapy  after  undergoing back surgery.   The \nClaimant confirmed that the surgery was beneficial.  According to the Claimant, she has been able \nto work and no longer has severe pain in her left leg.  She attended physical therapy sessions for \nabout a month, three times a week.  There is a note where Dr. Youssef returned the Claimant to \nwork as of March 26.  The Claimant testified that she returned to work for Envoy Air, on March \n30.  She admitted that she was not paid for the days she was off work.  The Claimant denied having \nreceived short-term or long-term disability.  She testified that the workers’ compensation carrier \ndid  not  ever  pay her  anything for her injury.   The  Claimant provided  testimony  outlining  her \ncurrent  work  situation  and  physical  restrictions.   She  is  working  under  permanent  physical \n\nDiaz – H400768  \n10 \n \nrestrictions,  which Envoy  Air is  accommodating.    Her permanent restrictions  include  no  lifting \nmore than 15 pounds.  She has not returned to see Dr. Youssef since her release from his care.  The \nClaimant denied having to take any medications or get pain management or any type of medical \ntreatment since her release from his care.   \nAccording to the Claimant, she continues to do the same job, except for the heavy lifting.  \nShe can print paper and do paperwork.  The Claimant can lift small parts, and if she needs to lift \nheavy parts, her workers help with the heavy parts.   \nThe Claimant confirmed that she has health insurance coverage.  However, there are some \nout-of-pocket expenses, which have been made as part of the record.  She agreed that she is asking \nthat her medical treatment be considered reasonable and necessary.  The Claimant is also asking \nthat the out-of-pocket expenses be considered reimbursable to her.  She confirmed that Dr. Youssef \nreleased  her from  his  care.  According  to  the  Claimant,  Dr. Hugghins evaluated her  for  an \nassessment for an impairment rating.  He assessed the Claimant with a 10% impairment rating to \nthe body as a whole.  The Claimant denied that she has been paid for the above rating.     \nRegarding her symptoms, the Claimant essentially testified that she continues to experience \nnumbness in her left foot.  However, she explained that her back is pain free.  She can bend with \ncare, do things, and walk.  In fact, the Claimant has a treadmill and can walk on it for 20 minutes, \nwithout any problems.  According to the Claimant, she tries to walk at least three times per week. \nThe Claimant  verified  that  since  her  employment  with  Envoy  Air,  she  has  continued  to \nreceive pay increases.  She confirmed that she has received a pay raise since her alleged injury.    \nOn cross-examination, the Claimant confirmed that she had back surgery on February 15, \n2024.   Dr.  Youssef performed  her  surgery.    She  saw  him  in follow-up  care  and  was ultimately \nreleased from his care.  The Claimant agreed that Dr. Youssef evaluated her on March 26 and told \n\nDiaz – H400768  \n11 \n \nher she could return to work at light duty, with a 20-pound lifting limit.  However, the Claimant \ntestified he changed her lifting limit. On April 1, 2024, the Claimant returned to Dr. Youssef and \nhe increased her lifting limit to 25 pounds, with the stipulation of no twisting or turning with force.  \nThe Claimant returned to Dr. Youssef again on June 5, 2024, and he permanently lowered \nher lifting restrictions to 15 pounds over her lifetime.  She confirmed that the surgery resulted in \nan  improvement  in  her  symptoms.    The Claimant  further  confirmed  that currently Envoy  is \naccommodating her restrictions, and she does not see any problems related to her working under \nthose  restrictions.   She  admitted to  having reported as  referenced  in  a  medical  report that her \ncondition improved significantly after her surgery.  The Claimant is not under a doctor’s care for \nher condition and has no future appointments scheduled.             \nWith further  questioning,  the  Claimant admitted  that during  her  deposition, she testified \nthat she started having problems around the first week of December 2023.  She agreed that she did \nnot name any specific injury or day that this event occurred in December.   The Claimant admitted \nthat she did not report anything to her employer in December about needing to see a doctor.  She \nconfirmed  that  she  sought  treatment  for  her  symptoms  on  her  own  in  December  2023.   The \nClaimant confirmed that when she did go to the doctor, she saw her family doctor, Dr. Valentin-\nStone.\n3\n  The  Claimant  saw  him  on  December  15,  2023.    She  admitted  that  she  reported  to  Dr. \nValentin-Stone she had been having some left foot pain, that radiated from her foot to her hip.  Per \nthose notes, the Claimant reported that she had those symptoms for the last two or three weeks.  \nAt that time, she agreed that she did not report a history of trauma or an injury.   \nThe Claimant admitted to seeing Dr. Valentin-Stone on January 2, 2024, for a second visit, \nwhich was just a follow-up visit.  At that time, Dr. Stone documented that the Claimant was having \n \n \n3\n Of note, Dr. Paul Valentin-Stone is referred to as Dr. Valentin-Stone in portions of this opinion, and in other \nparts, he is referred to as Dr. Stone.  \n\nDiaz – H400768  \n12 \n \npain in her calf, and it had been present for two or three months.  She admitted that she treats with \nDr. Valentin-Stone for a number of general health problems.   \nThe Claimant agreed that an event happened on January 16, 2024.  She admitted that her \nsupervisor saw her facial expressions and asked what was wrong.  According to the Claimant, her \nsupervisor observed that she was in a lot of pain and that something had happened to her.  At that \npoint, the Claimant admitted  that  she did  not say  anything  to  him  about  filing  a  workers’ \ncompensation claim.  The Claimant further admitted she did not pursue any type of request that \nthe company provide her with medical treatment.  However, the Claimant admitted to going back \nto the urgent care clinic.  She confirmed that the only record she has from there is of them taking \nher off work.   \nShe admitted to seeing Dr. Valentin-Stone on January 19, 2024, due to complaints of left \nleg pain.  He prepared a comprehensive note wherein he documented that the Claimant was there \nfor follow-up.  According to the Claimant, the urgent care clinic directed her to follow up with her \nprimary  care  physician.   The  Claimant admitted  that  she  was  not  aware  of  the  record  from  her \nJanuary 19 visit, not mentioning the January 16 event.  \nUnder further cross-examination, the Claimant acknowledged that she filled out the Form \nAR-N on January 30, 2024.  She admitted that she did not document a specific date on this form.  \nIt  simply  reads, “While lifting/moving heavy parts boxes had a pain for over a month.” She \nadmitted that the last doctor she saw was for an assessment of an impairment rating.  The Claimant \nconfirmed that the doctor is not a treating physician, but rather a chiropractor.          \nShe confirmed that her group health insurance is Blue Cross/Blue Shield.  The Claimant \nadmitted that she was found to be eligible for FMLA, and it was approved.  She further admitted \nthat she had a bona fide offer of employment for transitional duty, and they accommodated light \n\nDiaz – H400768  \n13 \n \nduty.  The Claimant admitted that she was off work except for the dates her attorney provided for \nthe record, until she resumed working on March 31, 2024.   \nThe  Claimant  admitted  that she is  not currently under a doctor’s care.   She  now  makes \n$21.82 an hour.  At the time of her injury, the Claimant was making $19.05 an hour.  She admitted \nthat she has received only one raise.  This upcoming May, the Claimant will be eligible for another \npay increase, which she predicts to be close to $22.80 an hour.                  \nShe admitted that there is no mention of an event in the January 19, report.  According to \nthe Claimant, it was difficult to explain things because she was in so much pain.  The Claimant \ndenied that she has done anything to reinjure herself.   \nOn redirect examination, the Claimant testified: \nQ       So take us back to December 2023, early January 2024, you had been in to \nsee Dr. Stone and you were telling him about you thought this might be something \nthat happened at work; right?  \n   \n         A Yes.   \n Q Tell us why you didn’t report that to your job at that time. \n  A Because I thought it was  -- the pain was gonna go away, that it was gonna \ngo away, that it was gonna feel better and there was no reason for me to tell no one \n because every time that I go to a doctor, they give me painkillers to help for a few \ndays, and I was hoping that the pain would go away with my care at home doing \nnot many things, so I thought it was no reasons at all to tell my employer.  And I \ndidn’t want to miss any days. \n \nThe Claimant admitted to telling Shauna Schultz a specific date of injury when she  \nfilled out the paperwork for her injury.  She testified that she gave them a specific date of January \n16, 2024.  Next, the Claimant was shown page 22 of the Claimant’s exhibit, which is a letter from \nSedgwick that was sent to her on January 25, 2024; and it does have an injury date of January 16.  \nShe agreed that the Form N at page 25, of Claimant’s Exhibit 1 is a document she signed on January \n30.    It  states  that  the  Claimant  injured  her  left  leg,  and  she provided an  explanation  of what \n\nDiaz – H400768  \n14 \n \nhappened.  She agreed that the place of the accident, date of the accident, and time of the accident \nwere all left blank because they knew the date; and she just wanted a description of what happened \nto her.   According to the Claimant, at that time, she was in a lot of pain, and everything was new \nto her, and she did fully understand the process.            \n                      MEDICAL EVIDENCE \n A review of the medical records demonstrates that on December 15, 2023, the Claimant   \nsought  medical  attention  from  CHI  St.  Vincent,  under  the  care  Dr.  Paul  Valentin-Stone (her \nprimary care physician) due to pain in her left foot, that radiated from her hip to her foot.  Per this \nmedical report, there was no history of trauma or injury.  The Claimant reported that when walking \nshe was asymptomatic, but stooping caused her pain.  Dr. Stone assessed the Claimant with, among \nother things, “Trochanteric bursitis.”  The Claimant was given an injection with Celestone and \nLidocaine.  \n On January 2, 2024, the Claimant sought follow up medical care from CHI St. Vincent due \nto a chief complaint of left leg pain.  The injection provided excellent results for her pain in the \nleft  trochanteric  bursa.    However,  now  the  Claimant complained  of  pain  in  her  calf, over  her \nAchilles tendon and the posterior triceps, in the lower left extremity.  This had been present for \ntwo to three months and was noted to probably be work related. It all was muscular in nature.  Dr. \nStone opined in relevant part: “... Muscle strain with spasm associated with most likely her work \nactivity.”  Dr. Stone reviewed with the Claimant some home stretching exercise and the use of a \ndeep massage machine that she will obtain and start using over the sore tissues.  She was instructed \nto use moist heat as well as Motrin for inflammation...”  \n It appears that the Claimant was seen at the Baptist Health Urgent Care clinic on January \n17, 2024, under the care of Cherry Megan, NP.  At that time, the Claimant was excused from work \n\nDiaz – H400768  \n15 \n \nfrom January 17, 2024, until January 23, 2024.     \n Dr. Valentin-Stone saw the Claimant on January 19, 2024, in a follow-up appointment due \nto her January 17 urgent care visit.  Per this note, during the last two weeks, the Claimant had left \nfoot pain from her foot to hip with no history of trauma or injury.  When walking the Claimant \nwas  noted  to  be  asymptomatic.    However,  she  reported  that  stooping  caused  pain.    She  also \nreported  pain  in  her  calf  over  the  Achilles  tendon  and  the  posterior  triceps of  her lower  left \nextremity.  These symptoms were noted to have been present for two to three months and were \nprobably work related.  These symptoms were muscular in nature.  She had severe posterior left \nleg pain over the sciatic distribution.  The Claimant did not complain of low back pain; but she \nhad difficulty getting out of bed in the mornings.  Her leg on the left side in the lower posterior \naspect  was  very  tender.  Dr.  Stone stated  that  this  was the  sciatic  nerve  distribution  probably \nassociated with the piriformis muscle and spasm of the same since she had no back pain and no \nreproducible back pain.  Dr.Valentin-Stone opined that on physical examination, palpitation of the \nClaimant left’s leg showed tissue texture changes, asymmetric and tenderness as reported by her.  \nAt that time, Dr. Valentin-Stone opined that the Claimant had muscle strain with spasm associated \nwith most likely her work activities.  He reviewed with the Claimant, home stretching exercises \nand the use of deep massage machine that she would obtain and start using over the sore tissues.  \nThe Claimant was instructed to use moist heat as well as Motrin for inflammation.  Dr.Valentin- \nStone directed the Claimant to follow up with him in three months.     \n Also, on January 19, Dr. Stone placed work restrictions on the Claimant.  He opined that \nthe Claimant’s weightlifting limit was no more than 30-pounds.      \n\nDiaz – H400768  \n16 \n \n On January 23, 2024, Envoy provided the Claimant with a Bona Fide Offer of Employment \nfor Transitional Duty.  The start date was January 23, 2024, and the end date was April 23, 2024.  \nPer this document, the Claimant’s date of injury was January 16, 2024.    \n The claims examiner for Envoy Air wrote a letter to the Claimant on January 25, 2024.  Per \nthis letter, the Claimant’s date of injury was noted to be January 16, 2024.  \n On  January  29,  2024,  the  Claimant  was  seen again at  the  Baptist  Health  Urgent  Care.  \nEbony Thompson, NP, authored a note that same date.  Thompson stated that the Claimant was \nseen at their clinic and excused from work until February 4, 2024.   \n The Claimant signed a Form AR-N on January 30, 2024.  Per this document, the Claimant’s \ninjury to her left leg occurred while lifting, moving heavy parts, boxes.  She stated that she had \npain for over a month.  However, the Claimant wrote “but on that day I felt a sharp burning pain \non my left leg.  Unable to get down or move at all.” \n On  February  1,  2024,  the  Claimant  saw  Dr. Valentin-Stone  for  a  follow-up  visit due  to \nchronic sciatica pain and recurrent sciatic syndrome, after non-invasive treatments had failed.  Dr. \nValentin-Stone  noted  that  on physical examination of the Claimant’s left leg, palpation of it \nrevealed tissue texture changes.  At that time, Dr. Valentin-Stone stated that he would go ahead \nwith an MRI of the lumbar/sacral and a referral to neurosurgery for evaluation.  Dr. Valentin-Stone \nassessed the Claimant with, among other things, “Sciatica of left side.”   \n Also, on February 1, Dr.Valentin-Stone authored a letter concerning the Claimant’s current \nmedical condition and the need for diagnostic evaluation.  Specifically, Dr. Valentin-Stone wrote: \nTo Whom It May Concern. \nI am the primary care physician for Carol Diaz, and she was examined by me on February  \n1,  2024.    Due  to  the  nature  of  her  job,  she  is  required  to  lift  and  transfer  heavy  objects.  \nThis has precipitated severe left hip pain, sciatica, and radiculopathy.  She will be having \nan MRI of her lumbar spine to evaluate this further.  She will need to be off of work until \n\nDiaz – H400768  \n17 \n \nall her work up for the same has been done.  I am enclosing a work note for her stating she \nwill need to be off work through February 11, 2024, with a tentative start date back to work \non February 12, 2024.  Please take this information into consideration. \n \n An MRI of the Claimant’s lumbar spine was performed on February 2, 2024, with the \nfollowing conclusion: \n1. Multileveled degenerative change. \n2. Disc bulging L3/4 and disc protrusion L4/5 as above. \n3. Milder disc bulging at L5/S1.  \n \n The Claimant was evaluation by Dr. Hossam Youssef on February 5, 2024, due to a chief \ncomplaint of continued severe left leg sciatica and related symptoms.  The Claimant mentioned \nthat she had a lifestyle for years in her employment, where herein her job duties included lifting, \npulling, and pushing heavy objects as an airport worker.  At that time, the Claimant stated that the \nsciatic symptoms  were getting  worse  especially  over  the  past  two  months.   She  complained  of \ndifficulty with walking and  doing her  daily  activities.  She  denied  any  urinary  or  fecal \nincontinence.  The Claimant continued with no significant symptoms of back pain.  Dr. Youssef \nstated that the MRI of her lumbosacral spine revealed severe lumbar spondylosis mainly at L3-4, \nL4-5 and L5-S1, which was more prominent at L4-5 in the form of a large left lateral disc prolapse \ncompressing the left L-4 and L-5 nerve roots.  Per these clinical notes, the Claimant reported that \nshe had not experienced any back pain.  She also reported gait disturbance, and sharp left leg pain.  \nDr.  Youssef  assessment  was: “1.   Sciatica  of  the  left  side – M54.32.  2.  Lumbar  spondylosis -\nM47.816.  3. Prolapsed lumbar disc – M51.26,” for which he recommended surgical intervention.    \n On  February  8,  2024,  Dr. Valentin-Stone  authored  an off-work excuse  for  the  Claimant \nfrom February 12, 2024, through February 15, 2024.  \n Dr. Youssef authored an Operative Report on February 15, 2024. \n  Indication for Surgery  \n  Diaz Carole DOB 10/22/1969 is a pleasant patient presented to my service c/o  \n\nDiaz – H400768  \n18 \n \nsevere left L4-5, sciatica with denying any back pain.  Patient works as a luggage \ncarrier  at  the  airport,  she tried  the  non-surgical  conservative  options  without  any \nimprovement,  MRI  revealed  L3-S1  Lumbar  spondylosis  profound  at  Left  L4-5, \nwith  a  big  caudally  migrated  Disk  herniation  with  foraminal  and  extraforaminal \nextension. \n         \n   Preoperative Diagnosis  \nLeft  L4-5  with  a  big  caudally  migrated  disk  herniation  with  foraminal  and \nextraforaminal extension.  \n \nOperation  \n1. Microscopic partial Left L4 laminectomy and partial facetectomy. \n2. Microscopic microsurgical excision of the Left L4-5 herniated disc (Lateral and \nextraforaminal approach). \n3. *** added complexity to the operation lateral and extraforaminal herniation of \nthe disc fragment. \n      \n      * * * * \nFindings  \nBig disk  herniation  laterally,  foraminal  and extraforaminal  at  L4-5  with  caudal \nmigration with compression of the Left L-5 root at its axilla.  \n \n On February 16, 2024, the Claimant underwent an ultrasound procedure, which included \nbilateral lower extremity venous duplex. \nFINDINGS:  The common  femoral  superficial  femoral,  and  popliteal  veins  appear \nunremarkable.  Normal compressibility and augmentation demonstrated.   \n \nIMPRESSION: No evidence of lower extremity deep venous thrombosis.  Please note that \nNo evidence of lower extremity deep venous thrombosis.  Please note this exam includes \nboth lower extremities. \n \nDr. Youssef authored a Discharge Report.  He noted that the Claimant tolerated the  \nsurgery well without complications.  The Claimant told him that she had significant improvement \nof the left sciatica.  She was neurologically stable and intact.  Dr. Youssef discharged the Claimant \nhome on February 17, 2024, in stable condition.      \n On March 26, 2024, Dr. Youssef saw the Claimant in a follow-up clinic following her L4-\n5 microdiscectomy on the left side, which was performed on February 15, 2024.  At that time, the \nClaimant reported that she had significant improvement in her symptoms, and she was very happy \n\nDiaz – H400768  \n19 \n \nand satisfied with her surgery and asked about getting back to work.  Dr. Youssef stated that the \nClaimant’s surgical wound was clean, dry, and intact.  He assessed the Claimant with “Prolapsed \nlumbar disc – M51.26 (Primary),” for which he recommended the Claimant be referred to physical \ntherapy.  At that time, Dr. Youssef stated that he would allow the Claimant to get back to work \nwith strict lifting restrictions of no more than fifteen pounds, with follow-up again in two months.     \n Also, on that same day,  Dr. Youssef issued the  Claimant a return-to-work note.  At that \ntime, Dr. Youssef stated that the Claimant could return to work on light duty effective March 26, \n2024.  Special instructions: “No lifting over 20-pounds.”   \n On  April  2,  2024, Dr.  Youssef  authored  a  Fitness  for  Duty  Authorization  Form,  Envoy.   \nPer this document, the Claimant was returned to work as of April 1, 2024, with restrictions of no \nlifting over 25-pounds, and no twisting or turning with force.  \n The Claimant returned to Dr. Youssef for a follow-up visit due to her lumbar spine surgery \non June 4, 2024.   At that time, Dr. Youssef noted that the Claimant had returned to work with \nstrict lifting restrictions of no more than 15 pounds.  However, Dr. Youssef stated that no additional \nfollow-up was needed with him, but he was available if she needed anything in the future.      \n Dr. Joe Hugghins, DC, of Academy Rehab, saw the Claimant on October 26, 2024, for an \nImpairment Evaluation.  Per these medical note, Dr. Hugghins’ purpose for the examination was \nto evaluate the Claimant to figure out if she had reached maximum medical improvement for her \nJanuary 16, 2024, work injury and to decide if any, a suitable impairment.  Dr. Hugghins reviewed \nsome medical  records from prior to the date of injury relating to the  Claimant’s left lower \nextremity.  At that time, the Claimant rated her lower back pain as 2/10.  She said that her pain can \nincrease to 6/10 with prolong standing but can dissipate with a change in position.  Dr. Hugghins \nstated  that  the  Claimant’s  original  complaints  were  “Severe  left  lower  extremity  pain  and \n\nDiaz – H400768  \n20 \n \nweakness.” Her current complaints were “Mild to moderate lower back pain.” Specifically, Dr. \nHugghins opined, in relevant part: \n IMPRESSION: \nThe  current  diagnosis  associated  with  the  file  is  lumbar  disc  injury  associated  with \nradiculopathy. \n \n ASSESSMENT: \n Maximum Medical Improvement is defined as “the earliest date after which, based on a  \nreasonable medical probability, further material recovery from or lasting improvement to \nan injury can no longer be anticipated. \n \nAfter reviewing information provided in the medical file as well as information gathered \nin my consultation and examination, if that Ms. Diaz reach [sic] clinical Maximum Medical \nImprovement as of the date of her discharge from Dr. Youssef, 6/24/24/.  As of that date, \nno  further  surgical  intervention  was  anticipated  or  scheduled,  no  postoperative  physical \nrehabilitation was scheduled, and no further material recovery was anticipated or scheduled \nas she was issued permanent lifting restrictions. \n \nWith regard to Whole Person Impairment, according to Table 75 on page 113, Ms. Diaz is \nassessed a 10% Whole Person Impairment Rating based on Section II, Intervertebral disc \nor documented pain and rigidity.  A review of the medical documentation provided as well \nas  information  gathered  in  my  consultation  and  examination  confirms  the  presence  of \nongoing paravertebral muscle spasm/rigidity in the lumbar spine. \n \nAt this time, I find 10% Whole Person Impairment Rating to be appropriated for residual \nfunctional loss associated with Ms. Diaz’s 1/16/24 work-related injury.  I’ve advised her \nthat it is in her best interest to continue her home stretching and exercise program, as well \nas attempt to increase her Activities of Daily Living, most notably walking, so that she may \ncontinue to increase mobility and stamina in her lumbar spine and left lower extremity.  I \nalso advised her to increase her mobility and stamina in her lumbar spine and left lower \nextremity.   I also advised her that should she suffer an exacerbation of symptoms in the \nform  of  increased  lower  back  or  left  lower  extremity  pain,  weaknesses,  swelling, \nnumbness,  or  instability  she  should  immediately  return  to  Dr.  Youssef  for  further \nevaluation and possible treatment.       \n          \n              ADJUDICATION \n \n A.  Compensability- Specific Incident Back Injury/or Gradual Onset Injury  \n The Claimant has alleged that she sustained a specific incident injury to her back and left \nleg on January 16, 2024; or in the alternative, she has alleged a gradual onset injury to her back,   \n\nDiaz – H400768  \n21 \n \nwhile in the course and scope of her employment with the respondent-employer, Envoy Air.     \n In that regard, for the Claimant to establish a compensable injury as a result of a specific \nincident, the following requirements of Ark. Code Ann. §11-9-102(4)(A)(i) (Repl. 2012), must be \nestablished:  (1)  proof  by  a  preponderance  of  the  evidence  of  an  injury  arising  out  of  and  in  the \ncourse of employment; (2) proof by a preponderance of the evidence that the injury caused internal \nor external physical harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. §11-9-\n102 (4)(D), establishing the injury; and (4) proof by a preponderance of the evidence that the injury \nwas caused by a specific incident and is identifiable by time  and place of occurrence.   Mikel v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).   \n A  compensable  injury  must  be proven by  medical  evidence  supported  by  objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings \nthat  cannot  come  under  the  voluntary  control  of  the  patient.   Id.  §  11-9-102(16).  The  element \n“arising out of . . . [the] employment” relates to the causal connection between the Claimant’s \ninjury  and their employment.   City  of  El  Dorado  v.  Sartor,  21  Ark.  App.  143,  729  S.W.2d  430 \n(1987).    An  injury  arises  out  of  a Claimant’s employment “when a causal connection between \nwork conditions and the injury is apparent to the rational mind.” Id. \n If the Claimant does not show by a preponderance of the evidence any of the requirements \nfor proving compensability, compensation must be denied.  Mikel v. Engineered Specialty Plastics, \n56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard means evidence that has greater weight \nor more convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet \nCove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n\nDiaz – H400768  \n22 \n \n After reviewing the evidence as a whole, without giving the benefit of the doubt to either \nparty,  I  find  that  the Claimant  has  proven  by  a  preponderance  of  the credible evidence  that  she \nsustained a specific incident injury to her back on January 16, 2024, which resulted in severe left \nL4-5 sciatica, radiating down her left lower extremity, with no back pain.   \nThe Respondents have asserted as an issue the Claimant’s failure to report this as a specific \nincident injury, which should be addressed now.   Particularly, when  completing the Form N on \nJanuary 30, the Claimant did not state a specific date of injury.  However, her explanation for not \ndoing  so  is  very  plausible,  and  she  makes  direct  reference  to  the  January  16  incident,  without \nspecifying an exact date.  Moreover, per the Claimant, this was all new to her and she believed \nthat management was aware of the date of her injury since her supervisor was present for the event,  \nand her credible testimony demonstrates that she simply wanted to make sure management had a \ndescription of the incident. On the Form N, the Claimant gave the following description of how \nunique her pain was on January 16, 2024, when she tried to lift the heavy box, “But on that day I \nfelt a sharp burning pain on my left leg.  She was unable to get down or move at all.” \n The Claimant reported a specific date of January 16 to Ms. Schultz when completing her \npaperwork for  a  workplace  injury,  and  the January  25, a  letter from Sedgwick to  the  Claimant \nstated a specific date of January 16.  Moreover, her testimony shows that her supervisor saw the \nincident.    Therefore,  due  to  all  the  foregoing  facts,  I  am  persuaded  to  find  that  the  Claimant \nconsistently reported an accidental injury, which occurred on January 16, 2024.   \n Nevertheless, in the present matter, the Claimant was an extremely credible witness.   Her \ntestimony is corroborated by medical records.  She gave conclusive and uncontradicted testimony \nof having experienced  left  leg discomfort and  weakness starting in  December  2023 before  her \nspecific  incident  injury  of  January  16,  2024.    According  to  the Claimant, she initially sought \n\nDiaz – H400768  \n23 \n \nmedical treatment from her primary care physician, Dr. Valentin-Stone, for symptoms relating to \nher  left  leg,  hip, and  back.    Although  the Claimant  had  symptoms  relating  to  her  left  leg,  these \nsymptoms were bearable and she continued to perform her job duties, without accommodations \nfrom her Envoy Air.  However, the Claimant reported to her doctor that all of her symptoms were \ncaused by her employment duties. Prior to January 16, the Claimant was able to function without \na lot of difficulties or work accommodations.   \n There is no evidence showing that the Claimant had prior problems with her back or left \nleg before December.  Nor had the Claimant been involved in earlier accidents, which resulted in \nproblems with her left leg or back.  The record does not show that the Claimant engaged in any \nhobbies or any other activities outside of work, which would have resulted in an injury to her back \nand left leg.         \nRegarding the Claimant’s January 16, 2024, work-related incident.   It is  undisputed that \nthe Claimant’s employment duties as an inventory specialist involved a great deal of heavy lifting.  \nHowever, on January 16, the Claimant was trying to lift an item that weighed approximately 50 \npounds when she experienced debilitating and excruciating pain in her left leg.  Per the Claimant’s \ntestimony,  this  pain  was much  more intense, and vastly  different from  the type  of pain  she  had \nexperienced previously.  Her testimony shows that her supervisor was nearby when this incident \noccurred. Upon seeing the agonizing look of pain on the Claimant’s face, he suggested that she \nseek medical attention, which she agreed to do.  She was able to complete her shift.  The Claimant \nreturned to work on January 17 but had to leave and seek medical attention for severe pain in the \nleft leg.  \n At that time, she sought medical attention for her symptoms from her Baptist Urgent Care \nClinic.  Thereafter she began treating her primary care physician, Dr. Valentin-Stone.   When the \n\nDiaz – H400768  \n24 \n \nClaimant’s symptoms did not improve with conservative non-invasive treatment modalities, she \nunderwent an MRI to her lumbar on February 2, 2024, with a conclusion: \n1. Multileveled degenerative change. \n2. Disc bulging L3/4 and disc protrusion L4/5 as above. \n3. Milder disc bulging at L5/S1.  \n Following the MRI, the Claimant was referred a neurosurgeon evaluation.  On February 5, \nthe Claimant came under the care of Dr. Hossam Youssef.  Per his medical notes, the Claimant \nconsistently reported no back pain.  However, the Claimant reported gait disturbance, and sharp \nleft leg pain.  Dr. Youssef assessed the Claimant with “1.  Sciatica of the left side – M54.32. 2. \nLumbar spondylosis -M47.816.  3. Prolapsed lumbar disc – M51.26,” for which he recommended \nsurgical intervention.   Dr. Youssef performed surgery on the Claimant’s back in the form of a L4-\n5 microdiscectomy, on February 15, 2024.  The Claimant reported that that received significant \nbenefit from the surgery.  Ultimately, on March 26, Dr. Youssef released the Claimant to return to \nwork with a restriction of no lifting over 20-pounds, which he later changed to a no lifting over \n15-pounds.   \n Subsequently, On  October  26,  2024, the  Claimant underwent  an evaluation  by Dr. Joe \nHugghins for  an  impairment  rating.    He opined  that  the Claimant  sustained  a  10%  impairment \nrating  to  her  back.    Dr.  Hugghins  stated  that  her  residual  functional loss  resulted from the \nClaimant’s work activities of January 16, 2024.  I have assigned significant evidentiary depth and \nweight  to this  expert  opinion  because  it is  based  on  a  complete and accurate medical  history \nreported by the Claimant of no prior back and left leg related symptomology.  Her reported medical \nhistory is corroborated by the lack of any evidence to the contrary proving the same.  This evidence \nsupports  a  finding  that  the Claimant’s work  activities  led  to  and caused  the Claimant’s \nabnormalities revealed on the lumbar MRI of February 2, 2024.   \n\nDiaz – H400768  \n25 \n \n I have considered the fact that the Claimant’s lumbar MRI done on February 2 revealed \nsome pre-existing degenerative changes that existed prior to her work-related accident.   \n It is well-established under workers’ compensation law that a pre-existing condition may \nbe aggravated by a work accident and be found compensable as a new injury.  I find that to be the \nprecise case here.  I reached this conclusion based on the following probative evidence.   \n Here, the Claimant’s complaints of left leg pain and back symptoms are all new.  She has \nno history of any back or left leg pain,  and she has never needed any medical attention for any \nsuch symptoms.  Although the Claimant suffered age-appropriate pre-existing degenerative disc \ndisease prior to December 2023, this condition was asymptomatic.  There is no probative evidence \nthat this condition interfered with the Claimant’s job performance or caused her to miss any time \nfrom work.  Moreover, the Claimant has never been involved in any other prior accident, nor has \nshe ever sustained any injuries to her back or leg.  Her credible testimony proves that she never \npreviously  had pain with  walking or  performing her  employment  duties. Again, there are  new \nobjective  findings  of  a lumbar  disc injury (with  associated radiculopathy) demonstrated  on  the \nlumbar MRI performed on February 2, 2024, which are all attributable to her work activities rather \nthan her pre-existing asymptomatic degenerative disc disease  \nBecause  I  find  that  the Claimant supported the  existence  of  her  alleged back  and  left \ninjuries with objective medical findings as required by Ark. Code Ann. § 11-9-102(4)(D) (Repl. \n2012),  I  find  that  the  Claimant  proved by  a  preponderance  of  the  evidence  all  of  the  necessary \nrequirements  for  proving that  she  sustained  a  compensable back injury,  which  resulted  in \nsignificant left leg symptoms on January 16, 2024. \n\nDiaz – H400768  \n26 \n \nHaving found that the Claimant has met her burden of proof of a specific incident injury, \nthe need for consideration of a gradual onset injury has been rendered moot.   \nI realize that the Claimant sought medical treatment for her leg prior to January 16, 2024, \nbeginning in December 2023.  However, the Claimant did not miss work due to these symptoms, \nand most significantly, the Claimant described the pain she experienced on January 16, to be much \nmore intense and vastly different.       \n B.  Medical Benefits \nAn employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn. § 11-9-508(a).   \nThe  Claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  the \nmedical treatment is reasonably necessary.  Stone v. Dollar General Stores, 91 Ark. App. 260, \n209  S.W.  3d  445  (2005).   Preponderance  of  the  evidence  means  the  evidence  having  greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003). \nBased on my review of the record as a whole, I find the Claimant proved that the medical \ntreatment  of  record  that  she  received  for  her  compensable  back  injury  and  resulting  left  leg \nsymptoms was reasonably necessary in connection with the injury sustained by the Claimant on \nJanuary 16, 2024, while performing her job duties for the respondent-employer.   \n In the instant case, the Claimant sustained a compensable injury to her back, which resulted \nin  significant  left  leg  pain  and  weakness.    She  sought  initial  treatment  for  her  back  and  related \nsymptoms from Baptist Health Urgent Care.  Thereafter, the Claimant was referred to return for \n\nDiaz – H400768  \n27 \n \nfollow-up with her primary care physician, Dr.Valentin-Stone, for treatment of her compensable \ninjury.    On  February  1,  2024,  Dr.Valentin-Stone  saw  the  Claimant  in  follow-up  clinic  due  to \nchronic sciatica pain and recurrent sciatic syndrome.  At that time, he noted that the non-invasive \ntreatments had failed to provide improvement in the Claimant’s condition.  As a result, Dr. Stone \nrecommended that the Claimant undergo an MRI and a neurosurgery evaluation.   \n On February 2, 2024, the Claimant underwent a lumbar MRI, which revealed the above-\ndescribed disc abnormalities.  Ultimately, the Claimant came under the care of Dr. Youssef.  On \nFebruary 15, 2024, Dr. Youssef performed back surgery, namely a L4-5 microdiscectomy on the \nleft side.  The Claimant reported that she had significant improvement in her symptoms.  In fact, \nthe Claimant was very satisfied with the surgery and asked to return to work for the respondent \nemployer and did so.  Although the Claimant suffered from pre-existing degenerative disk disease.  \nThese findings were age appropriate and had been asymptomatic.  This conclusion is corroborated \nby the Claimant’s credible testimony in this regard and the lack of any prior treatment for her back, \nexcept for the days preceding her compensable incident injury of January 16, 2024.  As such, I am \npersuaded that the Claimant’s lumbar disk injury associated with radiculopathy was caused by \ncompensable injury of January 16, 2024, and resulted in the Claimant’s need  for  the  medical \ntreatment of record, including the surgery performed by Dr. Youssef.  All the medications, medical \nevaluations,  diagnostic  tests, conservative  medical care, and  surgical  intervention  were  all \nmedically indicated treatment modalities ordered and geared toward treating and diagnosing the \nClaimant’s back and left leg injuries.   \nTherefore, I find that all medical treatment contained in the record herein, to include the \nlumbar surgery, performed by Dr. Valentin--Stone on February 2, 2024, to be reasonably necessary \n\nDiaz – H400768  \n28 \n \nand related medical treatment in connection with the compensable injuries to the Claimant’s back \nand left leg on January 16, 2024.   \nThe Respondents are liable for the Claimant’s medical expenses of record attributable to \nher compensable back injury (and related symptomatology of the left leg) received by her during \nand in the course and scope of her employment with Envoy Air on January 16, 2024. \nNo future treatment has been recommended for the Claimant’s compensable injury. \nC. Temporary Total Disability Compensation  \nHere, the Claimant contends that she is entitled to temporary total disability compensation \nfor her back and leg injuries beginning on January 17, 2024, and continuing until March 30, 2024.  \nThe Claimant’s primary injury was to her back which resulted in residual symptoms to her left leg.  \nAs  such,  the  Claimant  sustained  an  unscheduled  injury  to  her  back  on  January  16,  2024,  while \nperforming her employment duties for Envoy Air.   \nAn injured employee for an unscheduled injury is entitled to temporary total disability \ncompensation during the time that she is within her healing period and totally incapacitated from \nearning wages.  Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. \n244,  613  S.W.2d  392  (1981).  The  healing  period  is  that  period  for  healing  of  the  injury  which \ncontinues until the employee is as far restored as the permanent character of the injury will permit.  \nNix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  If the underlying condition \ncausing the disability has become stable and nothing further in the way of treatment will improve \nthat condition, the healing period has ended.  Id.  Temporary total disability cannot be awarded \nafter the Claimant’s healing period has ended.   \n\nDiaz – H400768  \n29 \n \n Here, on January 16, 2024, the Claimant sustained a compensable injury to her back while \nperforming work-related activities for Envoy Air.  The Claimant worked three days January 23, \n2024, through January 25, 2024; and on another occasion January 29, 2024, she worked only one \nhour of her shift.       \n However, except for the above time, the Claimant was totally incapacitated from earning \nwages.  This conclusion is reached based on probative evidence including but not limited to the \nClaimant’s credible testimony regarding her excruciating pain and other debilitating symptoms in \nher left leg that affected her ability to move freely, perform her employment duties, and engage in \nthe basic activities of daily living. The Claimant was also taken off work by her physicians during \nthe period in question.  Her inability to work was the direct result of her back injury of January 16, \n2024.    \n The Claimant treated with non-invasive treatment modalities for her compensable injury \nbeginning on January 17, 2024. She received initial treatment from Baptist Urgent Care and her \nprimary  care  physician,  Dr. Valentin-Stone.  However, when the Claimant’s condition did  not \nimprove, she underwent an MRI of the lumbar spine on February 1, which revealed the Claimant \nhad sustained a severe disc injury accompanied by radiculopathy of the left leg.  Ultimately, the \nClaimant was referred the Dr. Youssef, a neurosurgeon, for evaluation of her back condition.  Dr. \nYoussef performed back surgery on February 15.  The Claimant continued under the medical care \nof Dr. Youssef, and he ordered physical therapy treatment, which was done.  The Claimant was \nreleased from Dr. Youssef’s on or about March 26 with physical restrictions.  At that point, the \nClaimant had reached the end of her healing period for her compensable injury.  During this office \nvisit, the Claimant asked Dr. Youssef to return her to work, which he agreed to do.        \n\nDiaz – H400768  \n30 \n \n She does not have any planned medical visits for her compensable injury.  Her testimony \nshows that she has been working for Envoy Air since March 31, 2024, performing her same job \nduties without any difficulties.  Although the Claimant has permanent physical restrictions of no \nlifting over 15 pounds, Envoy Air has been accommodating those restrictions.    \n Based on the above evidence, I find that the Claimant remained in her healing period due \nto her compensable beginning on January 17 and continuing until March 30.  During this period \nof time, the Claimant was totally incapacitated from earning wages due to her compensable injury.  \nTherefore, based on the above probative evidence, I find that the Claimant proved her entitlement \nto temporary total disability compensation from January 17, 2024, until March 30, 2024, excluding \nthe time she worked.   \n The Respondents are liable for payment of these benefits. \n D.  Anatomical Impairment Rating     \n The Claimant contends that she sustained a 10% impairment to the body as a whole due to \nher compensable lumbar spine injury of January 16, 2024.     \n  Permanent impairment generally is any functional or anatomical loss remaining after the \nhealing period has been reached.  Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 \n(1994).    The  Commission  has  adopted  the American  Medical  Association (AMA) Guides  to  the \nEvaluation of Permanent Impairment (4\nth\n ed. 1993) to be used in assessing anatomical impairment.  \nSee Commission Rule 099.34; Ark. Code Ann. §11-9-522(g) (Repl. 2002).  It is the Commission’s \nduty, using the Guides, to determine whether the Claimant has proved she is entitled to a permanent \nanatomical impairment.  Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).      \n Any determination of the existence or extent of physical impairment shall be supported by \nobjective and measurable physical mental findings.  Ark. Code Ann. §11-9-704(c)(1) (B) (Repl. \n\nDiaz – H400768  \n31 \n \n2012).  Objective findings are those findings which cannot come under the voluntary control of \nthe patient.  Ark. Code Ann. §11-9-102(16)(A)(i).   \n Permanent  benefits  shall  be  awarded  only  upon  a  determination  that  the  compensable \ninjury was the major cause of the disability or impairment.  Ark. Code Ann. §11-9-102(F)(ii)(a) \n(Repl. 2012).  “Major cause” means “more than fifty percent (50%) of the cause,” and a finding of \nmajor cause shall be proven according to a preponderance of the evidence.  Ark. Code Ann. §11-\n9-102(14).    Preponderance  of  the  evidence  means  the  evidence  having  greater  weight  or \nconvincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 \n(2003).   Medical  opinion  addressing  compensability  and  permanent  impairment  must  be  stated \nwithin a reasonable degree of medical certainty.  Ark. Code Ann. §11-9-102 (16) (B).   \n After having given careful consideration and review of  the record as a whole, without \ngiving the benefit of the doubt to either party, I find that the evidence preponderates that the \nClaimant’s work-related injury of January 16, 2024, was the major cause of her 10% permanent \npartial anatomical impairment to her back as assigned by Dr. Joe Hugghins on October 26, 2024. \nThe basis for my conclusion is outlined below.        \nIn the present matter, the Claimant sustained a compensable injury to her back with residual \nsymptoms in her left leg.   On February 15, 2024, Dr. Youssef performed a microscopic partial left \nL4 laminectomy and partial medial facetectomy and a microscopic microsurgical excision of the \nleft L4-5 herniated disc using the lateral extraretinal approach.  The Claimant had no prior lumbar \nspine  injuries or  complaints, although  her lumbar MRI of  February  2024 revealed pre-existing, \nage-appropriate degenerative disc disease, these symptoms were asymptomatic.  However, she had \nbeen evaluated and treated for muscle strains and trochanteric bursitis in the lower left extremity \n\nDiaz – H400768  \n32 \n \nin the  weeks leading  up  to  her  January  16, 2024,  compensable injury.   These  symptoms  and \ncomplaints have been attributed to the Claimant’s strenuous job duties at Envoy Air.    \nOn  October  26,  2024, Dr. Hugghins  assessed  the  Claimant  with a  10% permanent \nanatomical impairment for her lumbar spine injury, using the AMA Guides (4\nth\n ed. 1993), at page \n3/113, Table 75, Section II.E.  Particularly, Section II.E assigns a 10% impairment of the whole \nperson for a surgically treated lumbar spine disk lesion with residual medically documented pain \nand rigidity.  Dr. Hugghins opined that his review of the Claimant’s medical file and information \ngathered during his consultation and examination of the Claimant revealed the presence of ongoing \nparavertebral muscle spasms rigidity in the lumbar spine.  No expert opinion to the contrary has \nbeen presented.  Nor was there any medical or other documentary evidence of any kind offered to \nthe contrary.  The Claimant’s own credible testimony is consistent with Dr. Hugghins conclusion.  \nConsidering all the foregoing probative evidence, I find that Dr. Hugghins’ expert opinion wherein \nhe a 10% permanent anatomical impairment for the Claimant’s compensable back injury is correct \nand well-reasoned.  As such, I have assigned significant evidentiary weight and probative value to \nDr. Hugghins’ expert opinion.  \nAccordingly, I find that the Claimant has proven by a preponderance of the evidence that \nher  January  16,  2024,  accidental  injury  was  the  major  cause  of  her  10% permanent partial \nanatomical  impairment.   Specifically,  although  the  Claimant  suffered  pre-existing  degenerative \ndisc  disease,  this  condition  was  asymptomatic.    Her  testimony shows that  she  had  no  prior \nproblems with her back  and prior to December 2023.  Moreover, the  record does show that the \nClaimant had any prior accidents or that she had sought any kind of medical treatment for her back.  \n  Supporting  objective  medical  findings include  the  prolapsed  lumbar  disc sustained  by \nClaimant as  shown  on February 2, 2024, MRI of  her  lumbar;  and  the  subsequent presence  of \n\nDiaz – H400768  \n33 \n \nongoing paravertebral muscle spasms/rigidity in this area as documented by Dr. Hugghins during \nhis October 2024 physical examination of the Claimant’s lumbar region. \n Per my own review of the entire record and the Guides, I find that Dr. Hugghins’ assessment \nof a 10% permanent anatomical impairment for the Claimant’s compensable lumbar spine injury \nof January 16, 2024, comports with the Guides and my own review of the Guides, and is thus valid.       \nI therefore find that the Claimant has proved by a preponderance of the evidence that she sustained \na 10% anatomical impairment on the body as a whole for her compensable lumbar spine injury of \nJanuary 16, 2024.  The Respondents are liable for payment of these indemnity benefits. \n E.  Attorney’s Fee \n The parties stipulated that the Respondents have controverted this claim in its entirety.  As \nsuch, the Claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity benefits \nawarded herein pursuant to Ark. Code Ann. §11-9-715 (Repl. 2012). \n                         AWARD \n Respondents are directed to pay benefits in accordance with the findings of fact set forth \nabove.  All accrued sums shall be paid in lump sum without discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809(Repl 2002).  See Couch \nv.  First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). Pursuant to Ark. Code \nAnn. §11-9-715 (Repl. 2012), the Claimant’s attorney is entitled to a 25% attorney’s fee on the \nindemnity benefits awarded herein.   \n IT IS SO ORDERED. \n                                                                      \n                                      ______________________ \n                         CHANDRA L. BLACK \n                                Administrative Law Judge \n\nDiaz – H400768  \n34","textLength":69973,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.:H400768 CAROL DIAZ, EMPLOYEE CLAIMANT ENVOY AIR, INC., EMPLOYER RESPONDENT AIU INSURANCE COMPANY/SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED JULY 22, 2025 Hearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in ...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","hip","strain","lumbar","herniated"],"fetchedAt":"2026-05-19T22:38:40.068Z"},{"id":"alj-H304672-2025-07-22","awccNumber":"H304672","decisionDate":"2025-07-22","decisionYear":2025,"opinionType":"alj","claimantName":"Gregory Roberson","employerName":"Pepper Source, Ltd","title":"ROBERSON VS. PEPPER SOURCE, LTD. AWCC# H304672 July 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ROBERSON_GREGORY_H304672_20250722.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROBERSON_GREGORY_H304672_20250722.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H304672 \n \nGREGORY ROBERSON, Employee CLAIMANT \n \nPEPPER SOURCE, LTD., Employer RESPONDENT \n \nSUMMIT CONSULTING, LLC, Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 22, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents  represented  by JASON  M.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On June  30,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort \nSmith,  Arkansas.      A  pre-hearing  conference  was  conducted  on June  18,  2025,  and a \npre-hearing  order  was  filed  on  that  same  date. A  copy  of  the  Pre-hearing  Order  has \nbeen  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  this \nclaim. \n 2. The employee/employer/carrier relationship existed among the parties on July \n14, 2022. \n\nRoberson – H304672 \n \n-2- \n 3. Prior opinion of March 13, 2024, is final. \n At the time of the hearing the parties agreed to stipulate that claimant earned an \naverage weekly wage of $1,070.00 which would entitle him to compensation at the rates \nof  $713.00  for  total  disability  benefits  and  $535.00  for  permanent  partial  disability \nbenefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Attorney Fee \n The  claimant  contends that  once  the  respondents  controverted  whether  he \nsustained   a   compensable   injury   to  his   lumbar   spine  they  also   controverted  his \nentitlement to any indemnity benefits arising out of that injury. Accordingly, the claimant \ncontends that his attorney is entitled to an attorney’s fee on indemnity benefits arising \nout of surgery that he underwent on March 4, 2025. \n The  respondents  contend no  indemnity  benefits  have  been  controverted  or \nawarded. Attorney’s fees can only be awarded on indemnity benefits that have been \ncontroverted  and  awarded.  See  Ark.  Coder  Ann.  §11-9-715(a)(2)(B)(ii).  No  indemnity \nbenefits  existed  or  were  at  issue  at  the  time  and  the  previous  decision  did  not  award \nindemnity benefits. Respondents accepted and paid all indemnity benefits as soon as or \nbefore they were due. No attorney’s fee is owed. \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nRoberson – H304672 \n \n-3- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on June 18, 2025, and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n 2. The  parties’  stipulation  that  claimant  earned  an  average  weekly  wage  of \n$1,070.00  which  would  entitle  him  to  compensation  at  the  rates  of  $713.00  for  total \ndisability  benefits  and  $535.00  for  permanent  partial  disability  benefits  is  also  hereby \naccepted as fact. \n 3. Claimant’s attorney is entitled to an attorney fee on payment of temporary total \ndisability benefits paid by the respondent beginning on February 24, 2025. \n \nFACTUAL BACKGROUND \n On  July  14,  2022,  while  working  for  respondent,  claimant  was  pinned  between \ntwo totes weighing 160-200 lbs. Respondent initially paid medical benefits for claimant’s \nright   shoulder,   cervical   spine,   thoracic   spine,   and   lumbar   spine.   However,   it \nsubsequently denied liability of compensable injuries to the spine. As a result, a hearing \nwas conducted and an Opinion filed on March 13, 2024, finding that claimant had failed \nto  prove  a  compensable  injury  to  his  cervical  spine,  but  finding  that  he  had  proven \ncompensable  injuries  to  his  thoracic  and  lumbar  spine.  This  opinion  was  not  appealed \nand the parties have stipulated that it is final. \n After  the  last  hearing,  claimant  continued  to  work  for  a  period  of  time  before \nundergoing  back  surgery.  Because  claimant  was  taken  off  work  for  this  surgery, \nrespondent  instituted  payment  of  temporary  total  disability  benefits  beginning  on \n\nRoberson – H304672 \n \n-4- \nFebruary 24, 2025. Based upon respondent’s controversion of the back injury, Attorney \nWalker  requested  an  attorney  fee  on  the  indemnity  benefits.  Respondent  has  denied \nliability  for  payment  of  a  fee  and  a  hearing  was  requested  on  Attorney  Walker’s \nentitlement to a fee. \n \nADJUDICATION \n Claimant  contends  that  his  attorney  is  entitled  to  an  attorney  fee  on  temporary \ntotal disability benefits paid as a result of surgery on his back. I find that Attorney Walker \nis entitled to a controverted attorney fee. \n Respondent contends that it is not liable for an attorney fee because claimant’s \nentitlement to temporary total disability benefits was not an issue at the time of the first \nhearing  and  when  claimant  did  undergo  surgery  it  voluntarily  paid  temporary  total \ndisability  benefits.  Therefore,  those  benefits  were  not  controverted  and  awarded \npursuant to A.C.A. §11-9-715.  \nHowever,  the  Arkansas  Workers’  Compensation  Commission  and  more \nimportantly, the Arkansas Court of Appeals have found that under similar circumstances \nan  attorney  fee  is  appropriate. Walmart  Stores,  Inc.  v.  Brown,  73  Ark.  App.  174,  40 \nS.W.3d  835  (2001).  In Brown the  respondent  initially  accepted  a  claim  and  paid  some \ncompensation benefits. However, at a prehearing conference the employer controverted \nclaimant’s  entitlement  to  temporary  partial  disability  benefits  and  a  hearing  was \nscheduled.  Approximately  one  month before the  scheduled  hearing  the  employer \nindicated  that  it  would  accept  the  temporary  partial  disability  and  pay  appropriate \nbenefits.  However,  it  refused  to  pay an attorney  fee  on  the  temporary  partial disability. \n\nRoberson – H304672 \n \n-5- \nThe  Arkansas  Court  of  Appeals  affirmed  the  Commission’s  decision  to  award  an \nattorney fee. In doing so, the Court stated: \nThe  Commission  interpreted  the  requirements  of §11-9-\n715(a)(2)(B)(ii) to be that where an employer controverts an \ninjured employee’s entitlement to certain benefits, but  later \naccepts   liability   prior   to   a   hearing   on   the   merits,   the \nemployee’s  attorney  may  still  request  a  hearing  for  an \nattorney’s  fee  on  those  controverted  benefits.  The \nCommission  found  that  when  there  is  no  dispute that  the \nemployer controverted benefits but then paid the benefits on \nwhich  an  attorney  fee  is  sought,  that  the  employee  has \nestablished  an  award  of  those  benefits  for  purposes  of  an \nattorney  seeking  an  attorney’s  fee  under  Ark.  Code  Ann. \n§11-9-715(a)(2)(B)(ii). The Commission found no \nrequirement in §11-9-715(a)(2)(B)(ii) requiring that an award \nof  controverted  benefits  must  precede  the  employer’s \npayment of benefits for the claimant’s attorney to be entitled \nto a fee. We agree and hold that the Commission’s findings \nare supported by substantial evidence. (Emphasis added.) \n \n In  reaching  the  decision  in Brown,  the  Court  relied  upon  a  decision  from  the \nArkansas  Supreme  Court  discussing  the  purpose  of  making  an  employer  liable  for  an \nattorney fee. In Cleek v. Great Southern Metals, 335 Ark. 342, 981 S.W.2d 529 (1998), \nthe Court stated: \nIn conclusion, this court has long recognized that making an \nemployer liable for attorney’s fees serves legitimate social \npurposes    such    as    discouraging    oppressive    delay    in \nrecognition of liability, deterring arbitrary or capricious denial \nof claims, and insuring the ability of necessitous claimants to \nobtain    adequate    and    competent    legal    representation. \n[Citation  omitted.]  In  the  instant  case,  while  Great  Southern \npaid  all  but  $35.00  of  Cleek’s  medical  expenses,  it  never \nrecognized  liability  for  her  injury,  and  if  Cleek  had  not \nprevailed  on  the  liability  issue  of  her  claim,  she  would  have \nbeen  barred  from  seeking  any  future  medical expenses  or \ndisability   benefits.   Great   Southern’s   undisputed \ncontroversion of Cleek’s injury claim forced Cleek to try this \ncase  fully  on  the merits.  If  Cleek had  not employed  counsel \nto assist her in this matter, it is reasonable to conclude both \n\nRoberson – H304672 \n \n-6- \nher  present  and  future  claims  for  medical  expenses  and \nbenefits   would   not   have   been   properly   presented   and \nprotected.  [Citation  omitted.]  If  the  fundamental  purposes  of \nattorney’s  fees  statutes  such  as  §11-9-715   are   to   be \nachieved,  it  must  be  considered  that  their  real  object  is  to \nplace the burden of litigation expenses upon the party which \nmade it necessary. \n \n Likewise,  in  this  case,  even  though  respondent  accepted  liability  for  temporary \ntotal disability benefits as a result of claimant’s back surgery, it did not initially recognize \nliability  for his back  injury.  If  claimant had  not  prevailed  on  the compensability issue of \nhis  back  claim,  he  would  not  have  been  entitled  to  any  future  disability  benefits. \nSpecifically, if claimant had not employed Attorney Walker to assist him in this matter, it \nis reasonable to conclude that his future claim for benefits would not have been properly \npresented  and  protected.  By  denying  compensability  of  claimant’s  back  injury, \nrespondent made litigation necessary. \n Based upon the evidence presented as well as the decisions from the Arkansas \nCourt  of  Appeals  and  the  Arkansas  Supreme  Court,  I  find  that  by  controverting \nclaimant’s entitlement to his back injury, respondent likewise controverted claimant’s \nentitlement to any future payment of temporary total disability benefits. Had claimant not \nprevailed  in  his  claim  for  compensability,  he  would  not  be  receiving  temporary  total \ndisability benefits at this time. Therefore, I find that an attorney fee is appropriate.  \n \nAWARD \n Claimant has proven that his attorney is entitled to a controverted attorney fee on \ntemporary total disability benefits paid by respondent beginning on February 24, 2025. \n\nRoberson – H304672 \n \n-7- \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.  \nAll sums herein accrued are payable in a lump sum and without discount.  This \naward shall bear interest at the maximum legal rate until paid. \n Respondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $276.00. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":11659,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H304672 GREGORY ROBERSON, Employee CLAIMANT PEPPER SOURCE, LTD., Employer RESPONDENT SUMMIT CONSULTING, LLC, Carrier RESPONDENT OPINION FILED JULY 22, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. C...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["lumbar","shoulder","cervical","thoracic","back"],"fetchedAt":"2026-05-19T22:38:42.110Z"},{"id":"alj-H208296-2025-07-22","awccNumber":"H208296","decisionDate":"2025-07-22","decisionYear":2025,"opinionType":"alj","claimantName":"Laura Treadwell","employerName":"Pope County Judge","title":"TREADWELL VS. POPE COUNTY JUDGE AWCC# H208296 July 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TREADWELL_LAURA_H208296_20250722.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TREADWELL_LAURA_H208296_20250722.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H208296 \n \nLAURA TREADWELL, Employee CLAIMANT \n \nPOPE COUNTY JUDGE, Employer RESPONDENT \n \nAAC RISK MANAGEMENT, Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 22, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Russellville, Pope \nCounty, Arkansas. \n \nClaimant represented by DANIEL E. WREN, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by JASON M. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On April  24,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at Russellville, \nArkansas.      A  pre-hearing  conference  was  conducted  on February  24,  2025,  and  a  Pre-hearing \nOrder  was  filed  on February  25,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  April \n15, 2022. \n 3. The claimant sustained a compensable injury to her back on or about April 15, 2022. \n\nTreadwell – H208296 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $790.00  for  temporary  total  disability  benefits  and  $593.00  for  permanent  partial \ndisability benefits. \n 5. All prior opinions are res judicata and the law of the case. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is entitled to payment of 5% impairment rating issued by Dr. Brad \nThomas. \n 2. Whether Claimant is entitled to wage loss. \n 3. Whether Claimant’s attorney is entitled to an attorney’s fee. \n The claimant's contentions are as follows: \n“On  November  29,  2023,  Dr.  Saer  released  the  Claimant  at  MMI \nand  recommended  an  FCE,  but  the  test  was  denied  by  Workers \nCompensation.  He  released  her  with  light  duty  level  work  with  a \nlifting  limit  of  25  lbs.  and  no  repetitive  bending,  twisting,  or \nlifting. Restrictions should be considered permanent. \n \nOn February 7, 2023, Claimant sought treatment  for injury on her \nown insurance. Dr. Beavers referred Claimant to Dr. Brad Thomas. \n \nOn  March  15,  2023,  Dr.  Brad  Thomas  ordered  an  MRI  and  on \nApril 7, 2023 Dr. Thomas ordered an EMG and referred her to pain \nmanagement. \n \nOn  April  24,  2023,  Dr.  Thomas  opined  that  no  surgery  was \nrecommended  based  on  the  MRI  and  EMG.  He  also  opined  that \nClaimant  is  unable  to  do  her  current  job  as  a  paramedic  and  is \ndoing a light duty job. Claimant will continue current work status. \nI  feel  her  symptoms  are  related  to  the  work  accident.  Dr.  Thomas \nstated  that  we  are  going  to  get  an  FCE  to  evaluate  her  long-term \nwork status. \n \nOn May 19, 2023, the EMG/NCV test was performed. \n \nOn  July  8,  2024,  the  FCE  test  was  performed  with  reliable  and \nconsistent measures. \n\nTreadwell – H208296 \n \n-3- \n \nOn  November  20,  2024,  Dr.  Thomas  issued  Claimant  a  5% \nimpairment rating. \n \nSince  the  accident,  the  Claimant  has  been  unable  to  return  to  her \njob  as  a  paramedic.  The  Claimant  is  entitled  to  her  impairment \nrating and a wage loss claim.” \n \n The respondents’ contentions are as follows: \n“This  is  an  accepted  claim  and  all  appropriate  benefits  have  been \npaid.  Dr.  Saer  released  the  claimant  with  a  0%  on  11/29/22.  The \nclaimant suffers from degenerative issues. The 5% by Dr. Thomas \nis  invalid  as  the  work  in  injury  was  not  the  major  cause.  The \nclaimant is not entitled to wage loss.” \n \n The claimant in this matter is a 47-year-old female who suffered a compensable injury to \nher back on April 15, 2022. The claimant was employed by the respondent as an EMT paramedic \nfrom 2003-2022, including the date of her compensable back injury. During testimony on direct \nexamination the claimant described her job duties, which in addition to providing medical care to \npatients, included  assessing  patients  and  bringing  them  back  to  an  ambulance.  It  was  the \nclaimant’s testimony that sometimes this could be difficult due to the area or terrain the patient \nwas located in, and sometimes it could be quite simple when a flat area was present to work in. \nThe claimant’s work as an EMT paramedic also required lifting of individuals of all sizes which \ncould also be difficult with larger patients.  \n The  claimant  on  direct  examination  described  the  April  15,  2022,  incident  in  which  she \nsustained a compensable back injury as follows: \nQ And again, just a thumbnail sketch, back on  April the 22\nnd\n \n– April the 15\nth\n, I’m sorry, tax day, 2022; what happened? They’ve \nagreed on this but just so the judge has some – \n \nA A respiratory stress in Hector, (indiscernible) come out. We \nwent in the house. The guy was short of breath. My partner and the \nfirst responder got the cot in the door, we got him on it. When we \n\nTreadwell – H208296 \n \n-4- \nwent  to  lift  him,  my  partner  failed  to  lock  the  legs  which  resulted \nfrom  a  full  standing  position  of  the  cot  to  the  ground  in  about  a \nsplit second, and I was still holding it. \n \nQ When  the  cot  was  up,  before  the – it – the  cot  collapsed \ndown to the ground? \n \nA Yes. \n \nQ Where were your hands hung in relationship to your waist? \n \nA Right here. \n \nQ Right  at  the  belt – maybe  right  at  the  belt  line,  maybe  a \nlittle bit above? \n \nA Yes. \n \nQ And  when  the  cot  went  all  the  way  to  the  ground,  how  far \nwere your hands from your feet? \n \nA There were touching my boots. \n \nQ Okay, and did you have any pain? \n \nA Yes, sir. \n \n On  direct  examination  the  claimant  described  medical  treatment  and  restrictions  she \nreceived after her April 15, 2022, compensable back injury as follows: \nQ Have  you  undergone  a  bunch  of  different  treatment  from \ndifferent doctors? \n \nA Yes, sir. \n \nQ At some point did you use your own insurance and see Dr. \nThomas? \n \nA Yes, sir. \n \nQ Did he do a nerve conduction test on you? \n \nA Yes, sir. \n \n\nTreadwell – H208296 \n \n-5- \nQ Did he recommend a functional capacity exam? \n \nA Yes, sir. \n \nQ Even  before  that,  when  you  were  being  treated  by  the \northopedic provided by workers’ comp, did they put restrictions on \nyou? \n \nA Yes, sir. \n \nQ And  what  were  those  restrictions,  did  it  keep  you  from \nworking as a paramedic? \n \nA Yes, sir. I had lifting instructions/restrictions, and I don’t \nremember the exact – it was 25 pounds. \n \nQ But certainly way less than what you – \n \nA Way less – \n \nQ -- than what you would have to do as a paramedic? \n \nA Yes, sir. \n \nQ To give the county credit, did they find you a new job? \n \nA Yes, they did. \n \nQ And  what  is  that  job  and  then  do  you  still  have  the  same \njob? \n \nA Yes, sir. I transferred to the assessor’s office here in the \ncourthouse. \n \nQ And is that a sedentary job? \n \nA Yes. \n \nQ Were any other jobs offered to you in the county? \n \nA No, sir. \n \n On November 29, 2022, the claimant was seen by Dr. Edward Saer at Ortho Arkansas in \nLittle Rock. Following is a portion of that medical record: \n\nTreadwell – H208296 \n \n-6- \nSubjective: \nLaura  Treadwell  is  a  45  year  old  Female  who  presents  to  discuss \nconcerns  about  their  Low  Back  Pain,  Mid  Back  Pain.  Since  their \nlast visit, patient report feeling Same. \n \n*** \nAssessment/Plan \nMs.  Treadwell  is  back  in  follow-up.  She  is  an  EMT  and  had  a \nwork-related injury on April 25, 2022 lifting a patient on a cot. She \nhas  had  pain  in  her  lower  back  as  well  as  tightness  in  the  lower \nthoracic area since then. She continues to complain of the tightness \nin  her  back  especially  if  she  overdoes  things.  She  is  taking  a \nFlexeril, usually in the afternoon, although not every day. She gets \nrelief  if  she  takes  the  Flexeril  and  lies  down  to  rest.  She  has \navoided  doing  any  heavy  lifting  and  is  continuing  to  work  on  a \nlight-duty basis. \nShe  continues  to  take  naproxen  twice  daily.  She  is  using  OTC \nnaproxen now. She is continue with some exercising and stretching \nthat she learned in physical therapy. \nExam: \nShe  gets  up  and  down  easily  and  walks  normally.  She  has  good \nforward  bending  and  good  extension  although  extension  is  a  little \nuncomfortable.  Forward  bending is her position of comfort. There \nis no muscle spasm. She has no localized tenderness. \nHer prior imaging did not show any significant focal abnormalities \nno new x-rays were obtained today. \nAssessment: \nI have recommended an FCE but that was not approved. Therefore \nI  think  she  should  continue  with  light  duty  level  work,  with  a \nlifting  limit  of  25  pounds,  and  no  repetitive  bending  twisting  or \nlifting. These restrictions should be considered permanent. \nShe is at MMI. There is no permanent impairment associated with \nthis injury. \n \nOn that same day, Dr. Saer authored a letter to the respondent regarding the claimant. Following \nis the body of that letter: \nI saw Laura Treadwell in the office today. She has been treated for \nback  pain  following  an  injury  at  work.  As  far  as  I  can  determine \nshe had a lumbar strain or sprain. \n \nTreatment  was  based  on  the  recent  injury,  not  on  pre-existing \nchanges.  There  are  no  objective  findings  to  warrant  permanent \n\nTreadwell – H208296 \n \n-7- \nimpairment rating. Work restricts are based primarily on the injury, \nnot any pre-existing conditions. \n \nAs far as I can tell, this was an acute injury, although I did not see \nher until 3 months after the date of injury. \n \nI do not think any further treatment is needed at this time. \n \n After the claimant was found at maximum medical improvement by Dr. Saer, she began \nto  see  Dr.  Brad  Thomas  at  Little  Rock  Neurosurgery  Clinic.  Dr.  Thomas  ordered  a  nerve \nconduction study of the claimant’s lower extremities. Following is the Impression section of that \ndiagnostic report: \nIMPRESSION: \nMild  left  proximal  sciatic  neuropathy;  peroneal  greater  than  post \ntibial division. \n \n As  previously  noted,  Dr.  Saer  had  ordered  an  FCE  for  the  claimant  but  that  was  not \napproved by the respondent. Dr. Thomas also ordered an FCE which the claimant underwent on \nJuly  8,  2024.  That  FCE  was  performed  by  Casey  Garretson,  an  occupational  therapist  and \nCharles  Davidson,  a  certified  senior  disability  analyst  from  Functional  Testing  Centers. The \nreport from the claimant’s FCE is found at Claimant’s Exhibit 1, pages 3-20  and  indicates  that \nthe claimant gave a reliable effort “with 50 of 50 consistency measures within expected limits.” \nThe  report  also  indicated  that  the  claimant  demonstrated  the  ability  to  perform  work  in  the \nmedium classification, giving her the ability to lift 50 lbs. occasionally. \n The claimant was seen by Dr. Thomas on August 15, 2024. Following is a portion of the \nmedical report from that visit: \nChief Complaint: F/U Low Back Pain evaluated on June 7, 2023 \n \nHPI:  This  is  a  47  year  old  female  who  is  following  up  for  Low \nBack  Pain  (Low  back  pain,  unspecified)  on  the  lumbar  spine.  She \n\nTreadwell – H208296 \n \n-8- \nwas  seen  on  June  7,  2023,  at  which  time  MRI  interpretation \nLumbar Spine was performed and \n \nThere  is  no  surgery  recommended  for  her  low  back  based  on  the \nMRI  and  the  EMG.  She  does  have  some  mild  left  radicular \nneuropathy. She is unable to do her job as a paramedic and is doing \na light duty job, she will continue her current work status. She is a \nyear  out  from  the  work  accident  and  we  do  feel  her  continued \nsymptoms  are  related  to  the  work  accident.  We  are  going  to  get  a \nFCE to evaluate her long term work status. We will order this and \nf/u after to determine her impairment rating. \n \nEMG  Result  Review  was  performed  and  The  following  labs  were \nordered: Functional capacity assessment (RFC). \n \nThe  patient  presents  for  further  evaluation  and  management  and \nthe   FCE   shows   she   gave   reliable   effort   with   a   medium \nclassification.  She  works  in  the  assessor’s  office  because  she \ncouldn’t go back to her job at EMS as a paramedic. She will not be \nable  to  go  back  to  working  as  a  paramedic  due  to  the  lifting \nrequirements.   We   recommend   disability   from   the   paramedic \nposition based on the lifting restrictions. \n \n*** \nTests \nMRI Interpretation Lumbar Spine \nMRI Data: \nDate: 04/04/2023 MRI L-spine without gadolinium \n \nMRI   of   the   lumbar   spine   was   obtained,   demonstrating   the \nfollowing   findings:   mild   degenerative   changes,   no   sig   canal \nstenosis or impingement. \n \nEMG Result Review \nStudy Data: \nOther Result Details: Mild left neuropathy. \n \nImpression/Plan: \nLow Back Pain \nLow back pain, unspecified  \nLocated on the lumbar spine. \nAssociated  diagnosis:  Intervertebral  Disc  Degeneration,  Lumbar, \nLeg pain, and Numbness \n \nPlan: Other. \n\nTreadwell – H208296 \n \n-9- \nShe  has  done  the  FCE  testing  and  she  should  not  be  a  paramedic \ndue to her lifting requirements being lowered. She is in a job now \nthat  makes  less  and  is  seeking  compensation  from  her  paramedic \njob.  We  will  send  a  copy  to  the  patient  and  Dr.  Homer  Beavers \nPCP and Miller Henry Clinic in Russellville. \n \n On November 20, 2024, Dr. Thomas authored a letter regarding the claimant. Following \nis the body of that letter: \nMs. Treadwell is a patient of mine. I last saw her on 08/15/2024. I \nam going to place her with an impairment rating based on that date \nwhich  is  the  last  time  I  saw  her.  This  will  give  her  a  5% \nimpairment  rating  for  unoperated  and  continued  lower  back  pain \nafter her work injury. \n \n On  April  14,  2025,  the  claimant’s  attorney  authored  a  letter  to  Dr.  Thomas  for \nclarification  about  the  letter  regarding  the  claimant  dated  November  20,  2024.  Following  is  the \nbody of that letter: \nOn  November  20,  2024,  we  received  the  attached  letter  from  you \nstating   that   you   gave   her   an   impairment   rating   of   5%   for \nunoperated continued lower back pain after her work injury. \n \nIn  order  to  clarify  the  above  impairment  rating  given,  could  you \nplease  state  that  the  impairment  rating  given  to  Laura  Treadwell \nwas based upon the guides to the evaluation of permanent injuries \n4\nth\n edition. \n \nOn April 16, 2025, Dr. Thomas indicated “Yes” to the above question posed by the claimant’s \nattorney. \n The  claimant  has  asked  the  Commission  to  determine  whether  she  is  entitled  to  the  5% \nimpairment rating issued by Dr. Brad Thomas. \nPermanent impairment, which is usually a medical condition, is any permanent functional \nor  anatomical  loss  remaining  after  the  healing  period  has  been  reached.   Ouachita  Marine  v. \nMorrison, 246 Ark. 882, 440 S.W.2d 216 (1969).  Also, in Wilson & Co. v. Christman, 244 Ark. \n\nTreadwell – H208296 \n \n-10- \n132, 424 S.W.2d 863 (1968), the Arkansas Supreme Court held that physical functional loss may \nbest   be   measured   through   physical   examination   by   competent   medical   specialists.   The \nCommission must first evaluate the medical evidence and determine if the permanent impairment \nis  supported  by  objective  and  measurable  findings.   Reader  v.  Rheem  Mfg.  Co.,  38  Ark.  App. \n248, 832 S.W.2d 505 (1992).  Ark. Code Ann. §11-9-704(c)(ii)(B) states that any determination \nof the existence or extent of physical impairment shall be supported by objective and measurable \nphysical  or  mental  findings.    In  addition,  permanent  benefits  may  only  be  awarded  upon  a \ndetermination  that  the  compensable  injury  was  the  major  cause  of  the  impairment,  Ark.  Code \nAnn. §11-9-102(4)(F)(ii). \n Dr.  Saer  requested  that  the  claimant  undergo  an  FCE;  however,  that  FCE  was  not \napproved  by  the  respondents.  In  a  November  29,  2022,  medical  record  he  discusses the \ndisapproval  of  that  FCE  and  places  work  restrictions  on  the  claimant  of  25  lbs.  lifting  and  no \nrepetitive  bending,  twisting  or  lifting.  Dr.  Saer  also  declares the  claimant  to  be  at  maximum \nmedical improvement at that time.  \n The claimant began to see Dr. Thomas after she was released by Dr. Saer in May of 2023. \nThe claimant   underwent   a   nerve   conduction   study   of   the   lower   extremities   at   the \nrecommendation of Dr. Thomas which showed “mild left proximal sciatic neuropathy; peroneal \ngreater than post tibial division.” \n The claimant requested and received a hearing on the issue on her entitlement to an FCE. \nThat  hearing  was  conducted  by  this  administrative  law  judge  on  March  14,  2024.  An  Opinion \ngranting the claimant’s request for an FCE was filed on June 11, 2024. On July 8, 2024, the \nclaimant   underwent   an   FCE   as   previously   discussed   which   placed   her   in   the   medium \nclassification of work. On November 20, 2024, Dr. Thomas gave the claimant a 5% whole body \n\nTreadwell – H208296 \n \n-11- \nimpairment  rating  and  affirmed  on  April  14,  2025,  that  the  rating  was  done  based  upon  the \nAmerican Medical Association’s Guides to the Evaluation of Permanent Impairment 4\nth\n Edition.  \n After a review of the medical records submitted in this matter along with the claimant’s \ntestimony, I agree that the claimant is entitled to a 5% whole body impairment rating due to her \nApril  15,  2022,  compensable  back  injury.  The  respondent  contends  that  Dr.  Saer’s  0% \nimpairment rating on November 29, 2022, is correct and that Dr. Thomas’ 5% whole body rating \nis invalid because the work injury was not the major cause of that rating. As to Dr. Saer’s 0% \nrating, Dr. Saer attempted to have more information regarding the claimant’s condition via an \nFCE. That FCE was denied by the respondent until a hearing determined that she was entitled to \nan  FCE.  Dr.  Thomas  had  the  benefit  of  a  nerve  conduction  study  and an FCE  in  which  the \nclaimant  put  forth  a  reliable  effort  with  50  of  50  consistency  measures  within  expected  limits. \nDr. Thomas was in the better position to consider an impairment rating for the claimant as he had \nmore information.  \n As to the issue of major cause, it is clear that the claimant has previously had a workers’ \ncompensation claim regarding her back. No documentary evidence was put forth by either party \nto  date  that claim, and  the  claimant  was  unable  to  recall  when  the  incident  occurred.  Some \nmedical records dated prior to the claimant’s April 15, 2022, compensable back injury have been \nintroduced  into  evidence.  However,  in  considering  the  medical  evidence  and  the  claimant’s \ntestimony,  which  I  believe  to  be  credible,  the  claimant  had  been  asymptomatic  for  at  least  two \nyears prior to her April 15, 2022, compensable back injury. In fact, the claimant had continued to \nwork,   which   required   her   to   lift   heavy   patients   and   sometimes   do   so   under   difficult \ncircumstances.  On  direct  examination  the  claimant  discussed  her  prior  back  problems  and  her \nmost recent difficulties as follows: \n\nTreadwell – H208296 \n \n-12- \nQ Had you ever had any back pain before? \n \nA I hurt my back at work once before. \n \nQ And approximately when was that? \n \nA I don’t know, several years. It was at the nursing home. \n \nQ And who treated you and were you given any restrictions? \n \nA I  was  treated  by  the  occupational    health  clinic  and  I  was \noff for maybe a day. It was just a muscle strain. \n \nQ And  after  that  incident  at  the  nursing  home,  whatever  date \nand  time  that  was,  were  you  able  to  perform  your  job  duties  as  a \nparamedic? \n \nA Yes, sir. \n \nQ Did that have any bearing whatsoever on your ability to do \nyour job? \n \nA No. \n \nQ After  this  injury,  were  you  left  with  any residual  pain  in \nyour back? \n \nA No. \n \nQ Not this injury, the current injury, yes, I’m sorry. I jumped \naround. \n \nA Yes. \n \nQ From September – from April the 15\nth\n of 2022? \n \n MR. RYBURN: Object to leading. \n \n MR. WREN: I apologize. \n \nA (Witness continues) Yes. \n \n THE COURT: Let’s start over. \n \n MR. WREN: Let me – I’ll ask the question. \n\nTreadwell – H208296 \n \n-13- \n \nQ (Mr. Wren continues) Were you hurt April 15\nth\n of 2022? \n \nA Yes, sir. \n \nQ Prior  to  that,  did  you  have  any  residual  pain  or  problems \nwith your back? \n \nA No. \n \nQ After  April  15\nth\n of  2022,  have  you  had  residual  pain  or \nissues with your back? \n \nA Yes. \n \nQ Describe those ongoing problems with your back. \n \nA So  if  I  do  anything,  any  like,  working  in  the  yard  for  long \nperiods of time, I’ll have significant pain. I get numbness down my \nleft leg. I just know what I can and can’t do how, and I try to avoid \nwhat hurts it consistently. \n \nQ You  mentioned  pain  in  your  back,  but  you  said  you  also \nhave some pain that radiates into your left leg? \n \nA My left leg goes numb. \n \nQ Is it pain or numbness? \n \nA Numbness. \n \nQ And  are  those  the  symptoms  that  you  described  to  Dr. \nThomas. \n \nA Yes. \n \nQ And  have  you  had  problems  with  falling  or  almost  falling \nwith that left leg? \n \nA Yes. \n \nQ Have you actually fallen? \n \nA I fell into the shelf, yes. \n \n\nTreadwell – H208296 \n \n-14- \nQ At the grocery store? \n \nA At CVS. \n \nQ CVS Pharmacy across the street from where we are now? \n \nA Yes, and I fell into the wall of the house the second time. \n \nQ Have  you  had  any  times  where  there  has  been  weakness, \nbut you’ve caught yourself? \n \nA Yeah. \n \n As in Leach v. Cooper Tire & Rubber Co., 2011 Ark. App. 571 (2011), the claimant was \nasymptomatic  prior  to  her  April  15,  2022,  compensable  back  injury  and  then  symptomatic \nthereafter,  such  that  the  major-cause  requirement  is  satisfied.  The  claimant  is  entitled  to  a  5% \nwhole body impairment rating due to her April 15, 2022, compensable back injury. \n The claimant has also asked the Commission to determine if she is entitled to wage loss \ndisability. \nWage loss is the degree to which the compensable injury has affected the claimant’s \nearning  capacity.  The  extent  of  disability  is  a  question  of  fact  for  the  Commission. Cross  v. \nCrawford   County   Memorial   Hospital,   54   Ark.   App.   130,   923   S.W.2d   886   (1996).   The \nCommission  is  charged  with  assessing  wage  loss  on  a  case  by  case  basis.  Factors  to  be \nconsidered  in  assessing  wage  loss  include  the  claimant’s  age,  education,  work  experience, \nmedical evidence and other matters which may reasonably be expected to affect the worker’s \nfuture earning power such as motivation, post-injury income, bona fide job offers, credibility or \nvoluntary  termination.   Glass  v.  Edens,  233  Ark.  786,  346  S.W.2d  685  (1961); City  of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Curry v. Franklin Electric, 32 \nArk. App. 168, 798 S.W.2d 130 (1990);  Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, \n\nTreadwell – H208296 \n \n-15- \n635  S.W.2d  276  (1982);  and Hope  School  District    v.  Charles  Wilson,  2011  Ark.  App.  219,  \nS.W.3d  (2011).  The  award  of  wage  loss  is  not  a  mathematical  formula,  but  a  judicial \ndetermination based on the Commission’s knowledge of industrial demands, limitations, and \nrequirements, Henson v. General Electric, 99 Ark. App. 129, 257 S.W.3d 908 (2008). \n Given  the  claimant’s  work  restrictions  provided  by  Dr.  Saer  and  more  recently,  Dr. \nThomas after the claimant’s FCE, it is clear that the claimant is no longer able to work as an \nEMT  paramedic.  The  respondent  has  continued  to  employ  the  claimant  in  a  different  position \nassociated with the county assessor’s office at the courthouse. A Form AR-W  associated  with \nthis claim and a “Pope County Government Direct Deposit Stub” of the claimant’s, both found at \nClaimant’s Exhibit 2, prove the claimant is making less money in her new position than her \nposition with the respondent as an EMT paramedic.  \n At the time of the hearing in this matter, the claimant was 47 years of age. She began to \nwork  for  the  respondent  in  2002,  when  she  was  23  years  old  as  a  basic  EMT.  In  2003  the \nclaimant  became  an  EMT  paramedic  and  worked  for  the  respondent  in  that  capacity  until  her \ncompensable back injury and eventual transfer to the respondent’s county assessor’s office. The \nclaimant testified that before going to work for the respondent, she worked for about three years \nin a food processing plant. The claimant further testified that she holds no other post-high school \ntraining  certificates  or  education  other  than  those  associated  with  an  EMT  paramedic. The \nclaimant did admit to having some basic computer skills but not advanced computer skills.  \n The  claimant  was  asked  on  cross  examination  about  her  ability  and  to  some  degree  her \nmotivation to work as follows: \nQ And Dr. Thomas released you with a five percent for an un-\noperated on lesion to your lumbar spine; is that – do you have any \nunderstanding of that? \n\nTreadwell – H208296 \n \n-16- \n \nA He did give me a five percent impairment rating. \n \nQ Okay, and I’m not saying that you should, but do you have \nany  understanding  of  the  medical  guides  that  he  used  to  come  to \nthat? \n \nA No. \n \nQ You  have  a – you  are  currently  working  a  sedentary  job \nwith the county; is that correct? \n \nA Yes, sir. \n \nQ And that’s working for the clerk, so I imagine that is a lot \nof computers and paper and that sort of thing; is that right? \n \nA Yes, sir. \n \nQ With almost no lifting? \n \nA Yes, sir. \n \nQ But you, according to the FCE, can do medium duty; is that \ncorrect? \n \nA I can lift. \n \nQ And so there are other jobs that you could do at least within \nyour – according to the FCE’s recommendations; is that fair? \n \nA Yes. \n \nQ Is that a “yes?” I’m sorry I spoke over you. \n \nA Yes. \n \nQ Thank  you.  And  part  of  your  motivation  for  staying  at  the \ncounty is your retirement; is that right? \n \nA Yes, I mean this is my hometown, this is my place. \n \nQ How many years do you need to secure your retirement? \n \nA I can retire in 28 years with full retirement. \n\nTreadwell – H208296 \n \n-17- \n \nQ Okay, and how many years left? \n \nA Five. A little over five. \n \nQ And so part of your motivation for continuing your county \nclerk job is to maintain your retirement? \n \nA Yes, sir. \n \nQ And so if a job that paid more but was not with the county \nwas  offered,  you  would  be  reluctant  to  take  it  because  you  would \nbe giving up that retirement; is that correct? \n \nA I can’t answer that. I mean I don’t know if I would take it. \n \nQ So  is  it  fair  to  say  that  you  are  willing  to  work  for  less \nmoney because of your county retirement, state retirement? \n \nA It was the job that was offered to me and it was the only job \nthat was offered to me; yes, sir. \n \nQ Have you applied for any other jobs? \n \nA No. \n \nQ Have you looked to see what other jobs are available within \nthe county? \n \nA Yes, sir. \n \nQ Have you found any? \n \nA No. \n \nQ Have you looked elsewhere outside the county to see what \njobs are available? \n \nA No. \n \nQ And why is that? \n \nA I just haven’t. \n \n\nTreadwell – H208296 \n \n-18- \nQ So  currently,  motivationally  speaking,  you  are  motivated \nby your retirement to keep the job that you have now? \n \nA Yes. \n \n Given the factors previously stated when considering wage loss disability along with the \nevidence and the claimant’s testimony, I find the claimant to be entitled to wage loss disability in \nan amount that would be equal to a 10% whole body impairment rating. The claimant’s very \nspecific work experience as an EMT paramedic for such a length of time given her age and her \nmotivation  to  remain  with  the  county  because  of  retirement  prospects  were  both  increasing  and \ndecreasing factors respectively. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nFebruary  24,  2025,  and  contained  in  a  Pre-hearing  Order  filed February  25,  2025,  are  hereby \naccepted as fact. \n 2. The claimant has proven by a preponderance of the evidence that she is entitled a 5% \nimpairment rating to the body as a whole.  \n 3. The claimant has proven by preponderance of the evidence that she is entitled to wage \nloss  disability  in  an  amount  that  would  be  equal  to  a  10%  impairment  rating  to  the  body  as  a \nwhole. \n\nTreadwell – H208296 \n \n-19- \n 4.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  her  attorney  is \nentitled to an attorney’s fee in this matter. \n ORDER \nThe respondent shall pay the claimant an impairment rating of 5% to the body as whole. \nThe respondent shall pay the claimant wage loss disability in an amount that would be equal to a \n10% impairment rating to the body as a whole. \nThe respondent shall pay to the claimant's attorney the maximum statutory attorney's fee \non the benefits awarded herein, with one half of said attorney's fee to be paid by the respondents \nin addition to such benefits and one half of said attorney's fee to be withheld by the respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":30812,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H208296 LAURA TREADWELL, Employee CLAIMANT POPE COUNTY JUDGE, Employer RESPONDENT AAC RISK MANAGEMENT, Carrier RESPONDENT OPINION FILED JULY 22, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope County, Arkansas. Claimant repr...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["back","repetitive","thoracic","lumbar","strain","sprain"],"fetchedAt":"2026-05-19T22:38:44.203Z"},{"id":"full_commission-H303428-2025-07-17","awccNumber":"H303428","decisionDate":"2025-07-17","decisionYear":2025,"opinionType":"full_commission","claimantName":"Joyce Johnson","employerName":"Booker T. Washington Elementary School","title":"JOHNSON VS. BOOKER T. WASHINGTON ELEMENTARY SCHOOL AWCC# H303428 July 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Johnson_Joyce_H303428_20250717.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Johnson_Joyce_H303428_20250717.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H303428  \n \nJOYCE JOHNSON, \nEMPLOYEE \n \nCLAIMANT \nBOOKER T. WASHINGTON ELEMENTARY \nSCHOOL, EMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSN., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JULY 17, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nFebruary 26, 2025.  The administrative law judge found that the claimant \ndid not prove she sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant did not \nprove she sustained a compensable injury in accordance with Ark. Code \nAnn. §11-9-102(4)(A)(i)(Repl. 2012).  In addition, the claimant did not \nestablish a compensable injury by medical evidence supported by objective \nfindings, pursuant to Ark. Code Ann. §11-9-102(4)(D)(Repl. 2012).     \nI.  HISTORY \n\nJOHNSON - H303428  2\n  \n \n \n Joyce Johnson, now age 59, testified that she became employed as \na classroom teacher for the respondents, Booker T. Washington \nElementary, in 1990.  Dr. Adam Smith reported in February 2023 that the \nclaimant had been suffering from a large number of chronic health \nconditions, including low back pain, “Onset:  06/25/2012 – Lumbago....X-\nrays of her lumbar spine shows slight loss of her lordosis and significant \nforaminal stenosis at L5-S1 with retrolisthesis.”  Dr. Smith assessed \n“Lumbar degenerative disc disease with foraminal stenosis.” \n An MRI of the claimant’s lumbar spine was taken on April 12, 2023 \nand was compared to an MRI taken November 9, 2011, with the following \nimpression: \n1. Multilevel degenerative disc disease.   \n2. A broad-based central protrusion of the L4-5 disc is \nsuperimposed on generalized bulging of the disc.  Central \nspinal canal stenosis at the L4-5 level due to the abnormal \ndisc, facet arthropathy, and thickening of the ligamentum \nflavum.  Right facet arthropathy mildly effaces the right \nside of the thecal sac.   \n3. There is narrowing of the right lateral recess at the L4-5 \nlevel, with impingement on the descending right L5 nerve \nroot. \n \nThe claimant underwent a lumbar transforaminal epidural injection in \nApril 2023.   \nThe parties stipulated that the employment relationship existed on \nMay 2, 2023.  The claimant testified on direct examination: \n\nJOHNSON - H303428  3\n  \n \n \nQ.  So take us to the date in question here, May the 2\nnd\n of ’23, \nwhat was the age group of children that you were dealing with \nthat day? \nA.  I had third graders, which were probably eight – around \neight years old or nine.... \nQ.  Were you having any issues with any disciplinary \nproblems during the day in the classroom? \nA.  It started from the very beginning, when the teacher left.  I \nwas trying to shut the door and this particular student decided \nto just go stand in the door.... \nQ.  And so as you came to the end of your class time, did you \nimplement  procedure that day in terms of how you were \ngoing to dismiss the children from the classroom? \nA.  Yes.  I decided to dismiss based on their behavior, which \nis something that I used to do regularly anyway....And this \nstudent started walking towards the door....and so we got \nthere about the same time and we both was – he was trying to \nget out the door....I just shut the door and he rammed into me \nreally hard ... And when he rammed me, he rammed me into \nthe door really hard. \nQ.  Let me ask you this, what part of your body did he strike, \nphysically, when he hit you?  Where are you saying that he \nstruck you? \nA.  Okay.  My hands were both on the door knob, and so \nwhen he came in and he came into my right side and it felt like \nit was his elbows that hit – like, his elbows and shoulder, \nmaybe, that hit, because it was like all through the upper part \nand, like, down to my waist.... \nQ.  Did you strike the door? \nA.  Yes, I struck the door, the door knob, ‘cause I was up on \nthe door shutting it, so my body went into the door....I bumped \nhim off with my hip and I yelled at him, “Don’t you ram me into \nthat door.”... \nQ.  Were you experiencing any symptoms or problems at that \npoint in time? \nA.  I was mainly, like, the parts of my body that hit the door, \nbut my left – left leg was – was hurting pretty badly and –  \nQ.  Where, specifically, was your left leg hurting? \nA.  It was like my hip down.   \n \n\nJOHNSON - H303428  4\n  \n \n \n According to the record, the claimant signed a Form AR-N, \nEMPLOYEE’S NOTICE OF INJURY, on May 3, 2023.  The ACCIDENT \nINFORMATION section of the Form AR-N indicated that the Date of \nAccident was May 2, 2023, and the claimant described the alleged injury: \nRight hip, hamstrings, slight right side shoulder blade pain; \nslight left knee (right side) pain.  I was already having some \npains for which I had had.  My calf pains have also increased.  \nI just stopped using a cane.  A male student rammed me into \na door as I was turned sideways, pinning me between the \ndoor and his body.  I had my hands holding the door, so I \nused my right hip to push him off of me to free myself.   \n \n Dr. Scott Carle saw the claimant on May 3, 2023 and reported, \n“Attacked yesterday at school.  Hit from the right side.  Pain pelvic rim, right \nthigh and left knee.  Has recent LESI for her back and feels like this has \nmade it worse again.  She has not cuts or bruises at this point.  Admits to \nbeing with some anxiety about this event.  Neck and posterior shoulders \nsore.”  Dr. Carle’s physical examination showed “Lumbosacral Spine:  \nnormal SLR, normal heel/toe gait, no spasms.”  Dr. Carle’s assessment on \nMay 3, 2023 was “1.  Assault,” “2.  Stress reaction,” “3.  Pelvic contusion, \ninitial encounter,” and “4.  Sprain of other ligament of left knee, initial \nencounter.”   \n Dr. Carle e-mailed the respondents on May 5, 2023: \n  Joyce Johnson \nAssaulted by a student.  Recent and pre existing back and hip \ntrouble s/p injection. \n\nJOHNSON - H303428  5\n  \n \n \nStudent rammed her from the side.  No visible bruises.  Doubt \nserious physical injury but she is emotionally rattled. \nRecommended some PT and get records and use EAP \nservices for now.  Also, gave her a couple of meds.   \nShe may not be very easy to get back into a classroom \nquickly..........:/ \n \n The record indicates that the claimant returned to light duty work for \nthe respondents on or about May 15, 2023.   \nAn MRI of the claimant’s lumbar spine was taken on May 19, 2023 \nwith the following impression: \n1. L4-L5:  Mild disc bulge and right paracentral to right \nforaminal disc herniation with moderate spinal canal \nstenosis, severe mass effect on the right lateral recess, \nsevere right and moderate left neural foraminal narrowing. \n2. L5-S1:  Mild disc bulge with moderate bilateral neural \nforaminal narrowing. \n3. No other spinal canal stenosis for moderate to high-grade \nneural foraminal narrowing.   \n4. The disc bulges and disc herniations are age \nindeterminate.  These could be chronic and degenerative \nin etiology, however also could be related to recent \nreported injury.  Clinical correlation is recommended.   \n \nThe record indicates that the claimant stopped returning to work on \nor about May 22, 2023.   \nA Claims Adjuster for the respondents wrote to Dr. Carle on June 7, \n2023: \nIt is my understanding that you are currently treating Ms. \nJohnson for a workers’ compensation claim with her \nemployer, Little Rock School District.  As you know, for \nworkers’ compensation claims to be compensable in the state \nof Arkansas, there must be objective and measurable \nfindings.  The Commission has defined “objective findings” as \n\nJOHNSON - H303428  6\n  \n \n \nfindings that cannot come under the voluntary control of the \npatient.   \nTherefore, we ask that you please advise what, if any, \nobjective findings Ms. Johnson has to support her injury.  I \nhave prepared a space at the bottom of this page for your \nconvenience in responding.... \nMs. Joyce Johnson’s objective findings are the following:   \n \n Dr. Carle replied on June 12, 2023, “None” and wrote, “Negative \nstudies for fracture or internal injuries.  No measurable aggravation to pre-\nexisting spine disorder.” \n The claimant began treating with Dr. Bernard Crowell on July 27, \n2023: \nMs. Johnson is a very pleasant 57-year-old female who [is] \nseen today with complaints of back pain along with left lower \nextremity radiculopathy.  She noticed the symptoms several \nmonths ago.  She underwent an MRI which showed she had a \nbulging disc at L4-L5.  She underwent an epidural steroid \ninjection.  However, shortly afterward she was involved in a \nschool altercation.  She continued to have increasing back \npain with right lower extremity radiculopathy.  The \nradiculopathy is quite severe in nature.  She walks with a limp \nfavoring the right lower extremity....She is now using a cane \nfor assistance.... \nMRI scan lumbar spine reveals large right paracentral disc \nherniation at L4-L5.  It occupies approximately 1/3 of the \ncanal.  Disc desiccation also noted.... \nWe discussed surgical intervention.  This would be a \nhemilaminectomy with discectomy.... \n \n A Claims Adjuster informed a representative of the Workers’ \nCompensation Commission on August 8, 2023, “We are in receipt of your \nletter dated 08/07/23, regarding the above captioned claim.  Please be \n\nJOHNSON - H303428  7\n  \n \n \nadvised that we have denied this claim for any additional medical \ntreatment.”   \n Dr. Crowell performed surgery on August 11, 2023:  \n“Hemilaminectomy and diskectomy, L4-L5.”  Dr. Crowell provided follow-up \ntreatment after surgery. \n The record indicates that the claimant retired from employment with \nthe respondents effective November 1, 2023.     \n Dr. Crowell noted on February 1, 2024, “She is complaining of \nincreased low back pain along with right lower extremity radiculopathy.  She \nhas undergone physical therapy.  However, her therapist terminated further \ntreatment secondary to increased back and right leg pain....She is now \nusing a cane, walking with a significant limp.”   \n Dr. Crowell corresponded with the claimant’s attorney on April 23, \n2024: \nThis letter is written in response to your query regarding Mrs. \nJohnson reaching maximum medical improvement and \nproviding an impairment rating using the AMA Guides to \nEvaluation of Permanent Impairment Fourth Edition.  Mrs. \nJohnson is a 58-year-old patient who was initially evaluated \non 07/23/2023 for an L4-L5 right paracentral disc herniation.  \nShe had noticed the symptoms several months prior to \npresentation.  She underwent an MRI which revealed a \nbulging disc at L4-L5.  She underwent non-operative \ntreatment consisting of an epidural steroid injection.  This did \nprovide her with relief.  However, shortly afterwards she was \ninvolved in a school altercation.  She noticed an increase in \nback pain and right lower extremity radiculopathy.  The \nradiculopathy had become quite severe in nature, resulting in \n\nJOHNSON - H303428  8\n  \n \n \nher ambulating with a limp.  She underwent another MRI scan \nof her lumbar spine which revealed a large right paracentral \ndisc herniation at L4-L5 occupying approximately 1/3 of the \ncanal.  She underwent a hemilaminectomy with discectomy at \nL4-L5 on 8/11/2023.  She initially showed improvement \nfollowing surgery, however, she was unable to undergo \nphysical therapy due to financial circumstances.  MRI scan \nwith contrast was performed on 02/09/2024 revealing right \nlaminectomy, discectomy with enhancing granulation tissue at \nthe discectomy and lateral recess.... \nBased on the AMA Guides to the Evaluation of Permanent \nImpairment chapter 3, page 113, table 75, section II E she \nshould receive a percent impairment of the whole body of 10.   \n \n Dr. Wayne L. Bruffett reported on June 22, 2024: \nI interviewed the patient, examined the patient and reviewed \nall the pertinent imaging.  I performed the medical decision \nmaking component in its entirety.  The patient readily reported \nthat she had pain in her back and leg prior to the work injury \nthat occurred on May 2, 2023.  In fact she had an injection for \nthis pain on April 28, 2023.  As a consequence of this work \nrelated (sic) of that a child charged her and pushed her into a \ndoor I believe.  She ultimately had surgery in the form [of] a \nmicroscopic partial diskectomy L4-5 on the right by Dr. \nBernard Crowell.  She sought him out and had this surgery \nwith her regular medical insurance.  After surgery she \ncontinued physical therapy and had some worsening pain.  In \nJanuary of this year she had further therapy.  In February of \nthis year she had an MRI scan.... \nI had an opportunity to review an MRI scan that was dated \n11/09/2011 that scan shows some mild degenerative changes \nalso reviewed the report.  There was no significant disc \nherniation at that time noted at the L4-5 level.  Another MRI \nscan was reviewed from 04/12/2023 and another one from \n05/19/2023 and a final study from 02/09/2024.  The study \nfrom April was done prior to the work related incident and the \n[May] study was done afterwards.  These 2 studies are \nbasically identical.  I see no objective change in the MRI \nfindings after this work related event.  The final MRI scan \ndoes reveal postsurgical changes.  X-rays today show \npostsurgical and degenerative changes as well.   \n\nJOHNSON - H303428  9\n  \n \n \nAlthough the work related incident that occurred on May 2, \n2023 caused some worsening pain for Mrs. Johnson, I would \nsay with a reasonable degree of medical certainty based on \nthe objective imaging and her history of pre-existing \ncomplaints and treatments for this problem, specifically an \ninjection 4 days prior to the event, the surgery that was \nperformed and the subsequent treatment was more than 51% \nrelated to her pre-existing disc herniation stenosis and \nradiculopathy that emanated from the L4-5 motion segment.  \nPut another way, I see no objective evidence of injury as a \nconsequence of the incident that occurred on May 2, 2023 at \nwork.  With regards to her work injury she is at maximum \nmedical improvement and there is no applicable impairment \nrating that can be linked to said incident.  I have no \nrestrictions to place upon her as a consequence of this work \ninjury.   \n \n A pre-hearing order was filed on July 2, 2024.  The claimant \ncontended, “a.  Claimant contends she sustained compensable injuries.  \nThe primary injury [being an] aggravation of a pre-existing condition of her \nlow back which has subsequently required surgery; b.  Claimant contends \nentitlement to temporary total disability benefits from the date she began \nmissing work; c.  Claimant contends Respondents should be ordered to pay \nthe medical treatment received to date and additional medical treatment; d.  \nClaimant contends Respondents should be ordered to pay attorney’s fees \nas provided by law.”   \n The parties stipulated that the respondents “have controverted this \nclaim in its entirety.”  The respondents contended, “Respondents contend \nthat Claimant did not suffer a compensable injury on or about 5/2/23.  In \n\nJOHNSON - H303428  10\n  \n \n \nlight of this, it is Respondents’ position that Claimant is not entitled to \nbenefits associated with her alleged injury.” \n Dr. Crowell corresponded with the claimant’s attorney on October 14, \n2024: \nThis letter is in response to your query regarding Mrs. \nJohnson’s evaluation by Dr. Bruffett.  I have read his \nevaluation and have also reviewed the MRI scans of Mrs. \nJohnson’s lumbar spine.  The first was obtained on April 12, \n2023 prior to the altercation, and the second was obtained on \nMay 19, 2023 after the altercation.  The scans were reviewed \nin side-by-side comparison.  I must preface my statement by \nnoting that the MRI scans were performed by two different \nMRI scanners.  I still believe that the herniation seen in the \nMay scan is slightly larger albeit it is only seen on a few \nimages and may appear to be open to opinion.  I still believe \nthat by her description and my evaluation of her, the work-\nrelated accident exacerbated her pre-existing condition.  This \nis based on the fact she had undergone a lumbar epidural \nsteroid injection and was feeling well enough to return to work.  \nIf she had not obtained a positive response from the injection, \nit is doubtful she would have returned to work.  It is my opinion \nthat when I evaluated her, surgery was necessary due to my \nfindings on physical examination and the location and size of \nthe disc herniation....   \n \n Dr. Ryan T. Fitzgerald corresponded with the respondents’ attorney \non January 6, 2025 and reported in part: \nMs. Johnson was involved in work-place incident on 5/2/23, \nhereafter for the purposes of this report referred to as the \nsubject event.... \nMR imaging of the lumbar spine 05/19/2023 was negative for \nany evidence of an acute traumatic injury.  No bone marrow \nedema, paraspinous soft tissue inflammation, or paraspinous \nmuscle edema was evident at any level.  As demonstrated on \nthe prior MRI exam from April 2023, chronic degenerative \ndisease was apparent at multiple levels, most advanced at L4-\n\nJOHNSON - H303428  11\n  \n \n \n5.  Ongoing impingement of the right L5 nerve root within the \nseverely stenotic right subarticular recess at L4-5 was \nunchanged.  No new disc abnormality had developed at L4-5 \nor elsewhere in the lumbar spine.... \nIn summary, Ms. Johnson’s medical record includes a well-\ndocumented history of chronic low back pain and active \nsymptomatology requiring treatment within 1 week of the \nsubject event.  On my person (sic) review, MR imaging \nobtained in May 2023 was negative for any objective evidence \nof an acute traumatic injury.  Severe subarticular recess \nstenosis on the right at L4-5 and impingement of the right L5 \nnerve root secondary to a diffuse disc bulge and degenerative \nfacet/ligamentum flavum hypertrophy were unchanged on the \n5/19/23 exam relative to the 4/12/23 exam.  As such, in my \nopinion lumbar treatments provided subsequent to the subject \nevent were more likely than not attributable to Ms. Johnson’s \nlong-standing lumbar degenerative disease and independent \nof the subject event.   \n \n A hearing was held on January 14, 2025.  At that time, the parties \nagreed to litigate the following issues: \n1. Whether the claimant sustained a compensable injury to \nher back by specific incident. \n2. Whether the claimant is entitled to reasonably necessary \nmedical treatment from May 3, 2023 to July 5, 2024. \n3. Whether the claimant is entitled to temporary total \ndisability benefits from September 1, 2023 to April 23, \n2024.   \n4. Whether the claimant is entitled to temporary partial \ndisability benefits from June 1, 2023 to August 30, 2023.   \n5. Whether the claimant is entitled to permanent partial \ndisability benefits, specifically, a 10% impairment rating to \nthe body as a whole.   \n6. Fees for legal services.   \n \n   An administrative law judge filed an opinion on February 26, 2025.  \nThe administrative law judge found that the claimant did not prove she \n\nJOHNSON - H303428  12\n  \n \n \nsustained a compensable injury.  The claimant appeals to the Full \nCommission. \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n(A)  “Compensable injury” means: \n(i) An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in \nthe course of employment and which requires \nmedical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific \nincident and is identifiable by time and place of \noccurrence[.]   \n \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012). \nAn aggravation is a new injury resulting from an independent \nincident, and being a new injury with an independent cause, it must meet \nthe definition of a compensable injury in order to establish compensability of \nthe aggravation.  Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 \nS.W.3d 591 (2008), citing Jim Walter Homes v. Beard, 82 Ark. App. 607, \n120 S.W.3d 160 (2007).       \n\nJOHNSON - H303428  13\n  \n \n \nThe employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n   It is the duty of the Full Commission to enter findings in accordance \nwith the preponderance of the evidence and not on whether there is \nsubstantial evidence to support an administrative law judge’s findings.  \nRoberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  The \nFull Commission reviews an administrative law judge’s opinion de novo, \nand it is the duty of the Full Commission to conduct its own fact-finding \nindependent of that done by an administrative law judge.  Crawford v. Pace \nIndus., 55 Ark. App. 60, 929 S.W.2d 727 (1996).  The Full Commission \nenters its own findings in accordance with the preponderance of the \nevidence.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 \n(1990). \nAn administrative law judge found in the present matter, “3.  The \nClaimant has not proven that she has sustained an aggravated \ncompensable spinal injury with objective findings.”  The Full Commission \nfinds that the claimant did not prove by a preponderance of the evidence \nthat she sustained a compensable injury. \n\nJOHNSON - H303428  14\n  \n \n \nThe claimant became employed as a classroom music teacher for \nthe respondents in 1990.  Dr. Smith reported in February 2023 that the \nclaimant had been suffering from chronic low back pain since at least 2012.  \nDr. Smith assessed “Lumbar degenerative disc disease with foraminal \nstenosis.”  An MRI of the claimant’s lumbar spine in April 2023 showed, \namong other things, a “broad-based central protrusion of the L4-5 disc.”  \nThe claimant underwent a lumbar transforaminal steroid injection in April \n2023.   \nThe parties stipulated the employment relationship existed on May 2, \n2023.  The claimant contends that she injured her back that day as the \nresult of an alleged assault by a student.  The claimant testified that she \nwas “rammed” into a doorknob by a student who was trying to forcibly exit \nthe classroom.  The claimant signed a Form AR-N, EMPLOYEE’S NOTICE \nOF INJURY, on May 3, 2023 but she did not report a back injury.  The \nclaimant wrote that she injured her “Right hip, hamstrings, slight ride side \nshoulder blade pain; slight left knee (right side) pain.”  Dr. Carle examined \nthe claimant on May 3, 2023 and reported “Pain pelvic rim, right thigh and \nleft knee.”  Dr. Carle’s assessment included “4.  Sprain of other ligament of \nleft knee, initial encounter,” but he did not report a back injury allegedly \noccurring on May 2, 2023.  Dr. Carle informed the respondents on May 5, \n2023, “Student rammed her from the side.  No visible bruises.  Doubt \n\nJOHNSON - H303428  15\n  \n \n \nserious physical injury but she is emotionally rattled.”  The claimant \nreturned to light duty work for the respondents on or about May 15, 2023.   \nAn MRI of the claimant’s lumbar spine was taken on May 19, 2023 \nand showed, among other things, a “Mild disc bulge” which had already \nbeen reported in April 2023, before the May 2, 2023 incident.  The claimant \nstopped returning to work for the respondents on or about May 22, 2023.  \nDr. Carle informed the respondents on June 12, 2023 that there were no \nobjective findings of an injury.  Dr. Carle opined that there were “Negative \nstudies for fracture or internal injuries.  No measurable aggravation to pre-\nexisting spine disorder [emphasis supplied].”   \nThe Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that she sustained a compensable injury in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012).  The \nclaimant did not prove that she sustained an accidental injury causing \ninternal or external physical harm to her low back on May 2, 2023.  The \nclaimant did not prove that she sustained an injury to her low back which \narose out of and in the course of employment, required medical services, or \nresulted in disability.   \nThe Full Commission also finds that the claimant did not establish a \ncompensable injury by medical evidence supported by objective findings.  \nDr. Carle opined on June 22, 2024 that there were no objective findings of a \n\nJOHNSON - H303428  16\n  \n \n \ncompensable injury to the claimant’s back.  Dr. Bruffett opined that there \nwas “no objective change” in MRI findings taken before and after the \nalleged May 2, 2023 classroom assault.  Dr. Bruffett expressly stated, “I see \nno objective evidence of injury as a consequence of the incident that \noccurred on May 2, 2023 at work.”  Dr. Fitzgerald opined on January 6, \n2025 that that MR imaging was “negative for any objective evidence” of an \ninjury to the claimant’s low back.  Dr. Fitzgerald stated, “As such, in my \nopinion lumbar treatments provided subsequent to the subject event were \nmore likely than not attributable to Ms. Johnson’s long-standing lumbar \ndegenerative disc disease and independent of the subject event.”   \nWe recognize Dr. Crowell’s opinion on April 23, 2024 that the \nclaimant had essentially sustained a herniated disc as result of the alleged \nlow back injury.  Dr. Crowell informed the claimant’s attorney in October \n2024, “I still believe that the herniation seen in the May scan is slightly \nlarger albeit it is only seen on a few images and may appear to be open to \nopinion.”  The Commission has the duty of weighing medical evidence and, \nif the evidence is conflicting, its resolution is a question of fact for the \nCommission.  Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 \nS.W.2d 695 (1999).  It is within the Commission’s province to weigh all of \nthe medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present \n\nJOHNSON - H303428  17\n  \n \n \nmatter, the Full Commission finds that the opinions of Dr. Carle, Dr. Bruffett, \nand Dr. Fitzgerald are corroborated by the evidence of record and are more \ncredible than the opinion of Dr. Crowell.   \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that she \nsustained a compensable injury in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(i)(Repl. 2012).  The claimant did not prove she sustained an \naccidental injury causing internal or external physical harm to her low back.  \nThe claimant did not prove that she sustained an injury to her low back \nwhich arose out of and in the course of employment, required medical \nservices, or resulted in disability.  In addition, the claimant did not establish \na compensable injury to her back by medical evidence supported by \nobjective medical findings, in accordance with Ark. Code Ann. §11-9-\n102(4)(D)(Repl. 2012).  The Full Commission therefore respectfully denies \nand dismisses the claim.   \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents. \n\nJOHNSON - H303428  18\n  \n \n \nDISSENTING OPINION \n  The Administrative Law Judge (hereinafter referred to as “ALJ”) \nfound that the Claimant had not proved that Claimant sustained an \naggravated compensable spinal injury with objective findings.  After my de \nnovo review of the record, I would dissent with the ALJ’s findings.  \nTo establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence.  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002).  \nThe employer takes the employee as he finds him.  Conway \nConvalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. \nApp. 1979).  A pre-existing disease or infirmity does not disqualify a claim if \nthe employment aggravated, accelerated, or combined with the disease or \ninfirmity to produce the disability for which compensation is sought.  See, \n\nJOHNSON - H303428  19\n  \n \n \nNashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 \n(1990); Conway Convalescent Center v. Murphree, 266 Ark. 985, 585 \nS.W.2d 462 (Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. \nApp. 30, 917 S.W.2d 550 (1996).  An increase in symptoms of a pre-\nexisting degenerative condition is sufficient to establish a compensable \ninjury.  Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d \n449 (2004). \n The Claimant has a prior history of symptomology and diagnoses for \nher lumbar spine.  Claimant underwent a lumbar spine MRI on April 12, 2023, \nwhich showed:  \n1. Multilevel degenerative disc disease.  \n2. A broad-based central protrusion of the L4-5 disc is \nsuperimposed on generalized bulging of the disc.  Central \nspinal canal stenosis at the L4-5 level due to the abnormal \ndisc, facet arthropathy, and thickening of the ligamentum \nflavum.  Right facet arthropathy mildly effaces the right \nside of the thecal sac.  \n3. There is narrowing of the right lateral recess of the L4-5 \nlevel, with impingement on the descending right L5 nerve \nroot.  \n \nBased  on  this  MRI,  Claimant  was  given  a  lumbar  epidural  steroid  injection \n(hereinafter referred to as “LESI”) on April 28, 2023.  On  May  2,  2023, \nClaimant  was  pushed by  a  student  while  working  for  the  Respondent.  On \nMay 3, 2023, Claimant was seen by Dr. Scott Carle where she reported that \nshe had a LESI for her back and that her back felt “worse again” after the \n\nJOHNSON - H303428  20\n  \n \n \naccident.  On May 19, 2023, Claimant underwent another lumbar spine MRI \nwhich showed:  \n1. L4-L5:  Mild  disc  bulge  and  right  paracentral  to  the  right \nforaminal   disc   herniation   with   moderate   spinal   canal \nstenosis,  severe  mass  effect  on  the  right  lateral  recess, \nsevere right and moderate left neural foraminal narrowing.  \n2. L5-S1:  Mild  disc  bulge  with  moderate  bilateral  neural \nforaminal narrowing.  \n3. No other spinal canal stenosis for moderate to high-grade \nneural foraminal narrowing.  \n4. The disc bulges and disc herniations are age indeterminate. \nThese  could  be  chronic  and  degenerative  in  etiology, \nhowever  also  could  be  related  to  recent  reported  injury. \nClinical correlation is recommended.  \n \nBased on this MRI, Dr. Scott Carle e-mails a representative of the \nRespondent on Claimant’s condition where he states that Claimant’s \nneurogenic claudication or radiculopathy was significantly worsening. \nClaimant was referred to Dr. Bernard Crowell who stated on July 27, 2023, \nthat Claimant’s May 19, 2023, MRI revealed “a large lumbar disc herniation \ndisplacing the exiting nerve root and occupying one third of the central \ncanal.”  Dr. Crowell then recommends Claimant for a hemilaminectomy with \ndiscectomy which was performed on August 11, 2023.  \n On June 21, 2024, Dr. Wayne Bruffett was asked by the Respondent \nto perform an independent medical evaluation.  In this evaluation Dr. Bruffett \nfound that there was “no objective evidence of injury as a consequence of \nthe incident that occurred on May 2, 2023.”  In response to this, Dr. Crowell \n\nJOHNSON - H303428  21\n  \n \n \nis asked by the Claimant to render his opinion on Claimant’s injury for which \nhe stated:  \nI still  believe  that  the  herniation  seen  in  May  scan  is  slightly \nlarger albeit it is only seen on a few images and may appear to \nbe open  to  opinion.  I still  believe  that  by  her  description and \nmy  evaluation  of  her,  the  work-related  accident  exacerbated \nher pre-existing condition.  This is based on the fact she had \nundergone a lumbar epidural steroid injection and was feeling \nwell enough to return to work.  If she had not obtained a positive \nresponse  from  her  injection,  it  is  doubtful  she  would  have \nreturned to  work.  It  is  my  opinion  that  when  I  evaluated  her, \nsurgery   was   necessary   due   to   my   findings   on   physical \nexamination and the location and size of the disc herniation. \n \nWhen medical opinions conflict, the Commission may resolve the \nconflict based on the record as a whole and reach the result consistent with \nreason, justice, and common sense.  Barksdale Lumber v. McAnally, 262 \nArk. 379, 557 S.W.2d 868 (1977).  It is within the Commission’s province to \nweigh all of the medical evidence and to determine what is most credible. \nMinnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nBased on my review of the record, I find that Dr. Crowell’s medical opinion \nshould be given more weight as he is an orthopedic surgeon, had personal \ncontact with the patient and extensively reviewed the Claimant’s current \nand past medical history in relation to her spine.  It is somewhat rare for \nthere to be objective evaluations of an injured employee’s spine shortly \nbefore and after a work accident.  However, in this case the MRIs of April \n12, 2023, and May 19, 2023, provide the physicians with a reasonably clear \n\nJOHNSON - H303428  22\n  \n \n \nbasis to determine the effect of the May 2, 2023, work accident.  It appears \nthat the physician who interpreted the MRI results agreed with Dr. Crowell’s \nassessment that the Claimant’s condition was progressively worse after the \nwork accident.  \nAlthough the Claimant clearly had a pre-existing condition, there is \nclear and credible evidence that she suffered from an aggravation of the \ninjury after the work accident on May 2, 2023.  The Courts have held in \nseveral cases that an increase in symptoms following a work-related \naccident is sufficient proof to establish compensability.  Parker v. Atlantic \nResearch Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004).  There was an \nobjective change in the condition of Claimant’s lumbar spine following her \nwork accident and Dr. Crowell opined that this change was related to the \nMay 2, 2023, work incident.  Therefore, I find that the Claimant has \nsustained compensable injury to her back.  \nFor the reasons stated above, I respectfully dissent.  \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":35605,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303428 JOYCE JOHNSON, EMPLOYEE CLAIMANT BOOKER T. WASHINGTON ELEMENTARY SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JULY 17, 2025","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","lumbar","shoulder","hip","knee","neck","sprain","fracture"],"fetchedAt":"2026-05-19T22:29:44.167Z"},{"id":"alj-H308127-2025-07-16","awccNumber":"H308127","decisionDate":"2025-07-16","decisionYear":2025,"opinionType":"alj","claimantName":"Daniel Koster","employerName":"Defiance Metal Products Of Ar","title":"KOSTER VS. DEFIANCE METAL PRODUCTS OF AR AWCC# H308127 July 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KOSTER_DANIEL_H308127_20250716.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KOSTER_DANIEL_H308127_20250716.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H308127 \nDANIEL KOSTER, EMPLOYEE       CLAIMANT \n \nDEFIANCE METAL PRODUCTS OF AR, \nEMPLOYER               RESPONDENT \n \nDEFIANCE METAL PRODUCTS OF AR, INC./ \nRISK MANAGEMENT RESOURCES,  \nCARRIER/TPA             RESPONDENT \n \nOPINION AND ORDER FILED JULY 16, 2025 \nThe Hearing before Administrative Law Judge James D. Kennedy, was held on \nJuly 9, 2025, in Clinton Arkansas. \nClaimant was pro-se and failed to appear. \nRespondents were represented by Carrol Lockard Worley, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A  hearing  was  held  in  the  above  styled  matter  on the 9\nth\n day  of July,  2025, in \nClinton, Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute pursuant \nto   Arkansas   Code   Ann.   11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Commission. The  claimant  was  pro  se  and failed  to  appear on  his own \nbehalf. The respondents were represented by Carol Worley of Little Rock, Arkansas.  \n A First Report of Injury was filed on December 6, 2023, which provided that the \nclaimant was injured on December 5, 2023, and was taken to BHMC Heber Springs.  A \nC Form was filed on December 15, 2023, which provided that the claimant was injured \nduring  the  course  and  scope  of  his  employment, where  he  sustained  injuries  to  his \nabdomen, pelvis, and right hip and “other whole body.”  A note from Dr. Patrick Freeman \ndated  June  11,  2024,  provided  that  the  claimant  had  reached  maximum  medical \n\nDaniel Koster – H308127 \n2 \n \nimprovement in regard to his hernia under his workers’ compensation claim and that he \ndoes not have any residual impairment related to the claim and he was released to full \nduty on June 5, 2024.  The claimant’s attorney, Laura Beth York received an Order from \nthe Full Commission, dated August 20, 2024, allowing her to withdraw as counsel.  On \nMay 7, 2025, the respondents filed a Motion to Dismiss.  No response was filed by the \nclaimant so  an  appropriate  notice  of  a  Motion  to  Dismiss  hearing  was  provided  to the \nparties setting the hearing for July 9, 2023, at 10:30 a.m.     \n A  hearing  was  held  on July  9, 2025, and  the  claimant failed  to  appear.    The \nRespondents  were  represented  by Carrol  Worley,  who  requested  that  the  matter  be \ndismissed pursuant to Rule 099.13 of the Arkansas Workers’ Compensation Commission \nand A.C.A. 11-9-702. \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion to Dismiss without prejudice pursuant to Rule 099.13 of the Arkansas \nWorkers’ Compensation Commission and A.C.A. 11-9-702.   \nIT IS SO ORDERED. \n         ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":2921,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H308127 DANIEL KOSTER, EMPLOYEE CLAIMANT DEFIANCE METAL PRODUCTS OF AR, EMPLOYER RESPONDENT DEFIANCE METAL PRODUCTS OF AR, INC./ RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION AND ORDER FILED JULY 16, 2025 The Hearing before Administrative Law Ju...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":["hip","hernia"],"fetchedAt":"2026-05-19T22:38:33.725Z"},{"id":"alj-H401716-2025-07-16","awccNumber":"H401716","decisionDate":"2025-07-16","decisionYear":2025,"opinionType":"alj","claimantName":"Michael Reusser","employerName":"G W Van Keppel Co","title":"REUSSER VS. G W VAN KEPPEL CO. AWCC# H401716 July 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Reusser_Michael_H401716_07162025.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Reusser_Michael_H401716_07162025.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H401716 \n \nMICHAEL REUSSER, \nEMPLOYEE                                                                                                              CLAIMANT \n \nG W VAN KEPPEL CO., \nEMPLOYER                                                                                                         RESPONDENT  \n \nTRAVELERS CAS. INS. CO. of AMERICA, \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED JULY 16, 2025 \n \nHearing conducted on  Wednesday,  June  4,  2025,  before  the  Arkansas  Workers’  Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ) Steven  Porch,  in  Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Mr. Michael Reusser, Pro Se, of White Hall, Arkansas.  \n \nThe Respondents  were  represented by Mr. Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non March  19,  2025.    A  hearing  on  the  motion  was  conducted  on  June  4,  2025,  in  Little  Rock, \nArkansas.  Claimant, according to the Commission’s file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a service technician. The date for \nClaimant’s   alleged   injury   was   on   December   13,   2023. He reported   his   injury   to   \nRespondent/Employer on the  same  day.  Respondents  admitted  into  the  record  Respondents’ \nExhibit  1, pleadings  and  correspondence,  consisting  of  9 pages.  The  Commission  admitted  into  \nevidence Commission  Ex.  1,  pleadings,  and  U.S.  Mail  return  receipt,  consisting  of  4 pages, as \ndiscussed infra. \n\nREUSSER, AWCC No. H401716 \n \n2 \n \nThe  record  reflects  that  on  March  8,  2024,  Form  AR-C  was  filed  by  Claimant’s  then-\nattorney, Laura Beth York, with the Commission purporting that Claimant injured his left shoulder, \nneck, and other whole body.  On March 11, 2024, a Form AR-1   was filed with the Commission \npurporting that Claimant’s injuries occurred when he fell from a ladder during an engine repair. \nAlso on March 11, 2024, a Form AR-2 was filed by Respondents accepting compensability of the \nleft shoulder injury. Respondent’s counsel, Guy Alton Wade, entered his appearance on April 30, \n2024. Claimant’s counsel, Laura Beth York, filed a Motion to Withdraw on February 10, 2025; \nand the Full Commission granted the motion on March 4, 2025. \nOn  March  19,  2025, Respondents’  counsel  filed  a  Motion  to  Dismiss  due  to Claimant’s \nfailure to prosecute his claim. The Claimant was sent, on March 26, 2025, notice of the Motion to \nDismiss,  via certified  and  regular  U.S.  Mail,  to  his  last  known  address  of  record.  The  certified  \nmotion notice  was  claimed  by  Claimant  as  noted  on the  March  29,  2025,  return  receipt.  The \nClaimant  did  not respond  to  the  motion  in  writing  as  required within  twenty  days.  Thus,  in  \naccordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice of \nRespondents’ Motion to Dismiss hearing date at his current address of record via the United States \nPostal  Service  (USPS),  First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-\nClass Mail, on May 5, 2025. The certified notice was claimed according to the May 8, 2025, return \nnotice. The hearing took place on June 4, 2025. And as mentioned before, the Claimant did not \nshow up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-  704 (Repl. 2012):  \n\nREUSSER, AWCC No. H401716 \n \n3 \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the  June  4,  2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to make a bona fide request for a hearing in more than six months pursuant \nto Ark. Code Ann. § 11-9-  702(a)(4).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION  \nUnder Ark. Code Ann. § 11-9-  702(a)(4) “If within six (6) months after the filing of a claim \nfor compensation no bona fide request for a hearing has been made with respect to the claim, the \nclaim  may,  upon  motion  and  after  hearing,  be  dismissed  without  prejudice...”.  Consistent  with \nArk.  Code  Ann. §  11-9-  702(a)(4),  the  Commission  scheduled  and  conducted  a  hearing,  with  \nreasonable notice to the Claimant, on Respondents’ Motion to Dismiss hearing date. The certified \nhearing notice was claimed on May 8, 2025, per the return postal notice bearing the same date. \nThus, I find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \nArk. Code Ann. § 11-9-  702(a)(4) allows the Commission, upon meritorious application, to \ndismiss an action pending before it due to a want of a bona fide request for a hearing within six \nmonths. The Claimant filed his Form AR-C on March 8, 2024. Since then, he has failed to request \na bona fide hearing. Therefore, I do find by the preponderance of the evidence that Claimant has \nfailed  to  prosecute  his  claim  by  failing  to  request  a  bona  fide  hearing within  six  months.  Thus,  \nRespondents’ Motion to Dismiss should be granted. \n \n \n\nREUSSER, AWCC No. H401716 \n \n4 \n \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above,  Respondents’  \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6025,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H401716 MICHAEL REUSSER, EMPLOYEE CLAIMANT G W VAN KEPPEL CO., EMPLOYER RESPONDENT TRAVELERS CAS. INS. CO. of AMERICA, CARRIER/TPA RESPONDENT OPINION FILED JULY 16, 2025 Hearing conducted on Wednesday, June 4, 2025, before the Arkansas Workers’ Compensation C...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["shoulder","neck"],"fetchedAt":"2026-05-19T22:38:35.795Z"},{"id":"alj-H500882-2025-07-16","awccNumber":"H500882","decisionDate":"2025-07-16","decisionYear":2025,"opinionType":"alj","claimantName":"Christopher Wood","employerName":"South Side School District","title":"WOOD VS. SOUTH SIDE SCHOOL DISTRICT AWCC# H500882 July 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WOOD_CHRISTOPHER_H500882_20250716.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WOOD_CHRISTOPHER_H500882_20250716.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H500882 \nCHRISTOPHER WOOD, EMPLOYEE      CLAIMANT \n \nSOUTH SIDE SCHOOL DISTRICT, \nEMPLOYER                                                                                            RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOC. WCT, \nCARRIER/TPA                       RESPONDENT \n \nOPINION AND ORDER FILED JULY 16, 2025 \nThe Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, was held on July 8, 2025. \nClaimant was pro-se and failed to appear. \nRespondents were represented by Melissa Wood, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 8th day of July, 2025, in Little \nRock, Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute, contending \nthat the claim had been denied in its entirety and the claimant had indicated by email that \nhe wanted to have his claim dismissed.  Further, the respondents contended that upon \napplication by either party for a dismissal for failure to prosecute, the Commission may, \nafter reasonable notice to all parties, enter an order dismissing the claim.   \n On January 31, 2025, the claimant claimed that he had sustained a hernia, and on \nMarch 20, 2025, requested a “review” of his Workers’ Compensation Claim, stating that \nhis claim was denied by a letter, dated February 10, 2025. This request for a review was \ntreated  as  a  request  for  a  hearing.  The  claimant  participated  in  discovery  and  a \nPrehearing Order was filed on June 11, 2025, setting the matter for a hearing on August \n12, 2025, in Little Rock, Arkansas. An email was then received from the claimant on June \n\nChristopher Wood – H500882 \n2 \n \n26,  2025, which  stated that  he  did  not  wish  to  pursue  his  claim  and  that  he  wished  to \nclose it and it be dismissed. A Motion to Dismiss was filed on June 26, 2025.  No response \nwas filed by the Claimant in regard to the Motion to Dismiss so appropriate notice of a \nMotion to Dismiss hearing was provided to all the parties setting the hearing for July 8, \n2025, at 12:00 p.m., in Little Rock, Arkansas.   \n A  hearing  was  held  on July  3, 2025, and  the  claimant failed  to  appear.  The \nRespondents  were  represented  by Melissa  Wood,  who  requested  that  the  matter  be \ndismissed for want of prosecution, and that the Commission may, upon reasonable notice \nto all parties, enter an order dismissing the claim for want of prosecution. \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \nthe Motion to Dismiss without prejudice pursuant to Rule 099.13 of the Arkansas Workers’ \nCompensation Commission.   \nIT IS SO ORDERED. \n                \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":2942,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H500882 CHRISTOPHER WOOD, EMPLOYEE CLAIMANT SOUTH SIDE SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA RESPONDENT OPINION AND ORDER FILED JULY 16, 2025 The Hearing before Administrative Law Judge James D. Kennedy in Littl...","outcome":"dismissed","outcomeKeywords":["dismissed:10","denied:2"],"injuryKeywords":["hernia"],"fetchedAt":"2026-05-19T22:38:37.938Z"},{"id":"alj-H308247-2025-07-14","awccNumber":"H308247","decisionDate":"2025-07-14","decisionYear":2025,"opinionType":"alj","claimantName":"Katrena Macdonald","employerName":"Aramark","title":"MACDONALD VS. ARAMARK AWCC# H308247 July 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MACDONALD_KATRENA_H308247_20250714.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MACDONALD_KATRENA_H308247_20250714.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H308247 \n \nKATRENA MACDONALD, Employee CLAIMANT \n \nARAMARK, Employer RESPONDENT \n \nIDEMNITY INS. CO. OF NORTH AMERICA/SEDGWICK, Carrier RESPONDENT \n \n \n NUNC PRO TUNC ORDER FILED JULY 14, 2025 \n ACA §11-9-713  authorizes  the  Commission  to  correct  clerical  errors.    This  is  a \nproper case to exercise that authority. \nI find that a clerical error exists in the Opinion filed June 25, 2025.  The clerical \nerrors are found on page 4 of the Opinion and relate to the year in which certain events \ntranspired.  The Opinion reflects that these events occurred in 2024; instead of 2023. \nTherefore, said Opinion is hereby modified to reflect the correct year of 2023 as \nfollows: \n“Claimant  worked  for  respondent  performing  catering  services  for  Walmart  corporate \nevents beginning on October 23, 2023.  This was during respondent’s biweekly pay \nperiod  of  October  12,  2023,  through  October  24,  2023.    As  a  result,  claimant  only \nworked three days during this pay period.  After that time claimant worked six full weeks \nfor  respondent  before  suffering  an  admittedly  compensable  injury  to  her  head,  neck, \nand right shoulder on December 6, 2023. \n* * * \nThis  case  revolves  around  whether  the  three  days  claimant  worked  during  the \npay  period  ending  October  25, 2023,  should  be  included  in  calculating  the  average \nweekly wage.” \n\n \nIn  all  other  aspects,  the  Opinion  shall  remain  the  same  and  shall  not  be \notherwise affected. \n IT IS SO ORDERED. \n                                 _______________ \n                GREGORY K. STEWART \n                                        Administrative Law Judge","textLength":1735,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H308247 KATRENA MACDONALD, Employee CLAIMANT ARAMARK, Employer RESPONDENT IDEMNITY INS. CO. OF NORTH AMERICA/SEDGWICK, Carrier RESPONDENT NUNC PRO TUNC ORDER FILED JULY 14, 2025 ACA §11-9-713 authorizes the Commission to correct clerical errors. This is a pro...","outcome":"modified","outcomeKeywords":["modified:1"],"injuryKeywords":["neck","shoulder"],"fetchedAt":"2026-05-19T22:38:27.510Z"},{"id":"alj-H203260-2025-07-14","awccNumber":"H203260","decisionDate":"2025-07-14","decisionYear":2025,"opinionType":"alj","claimantName":"Librado Martinez","employerName":"Russellville School District","title":"MARTINEZ VS. RUSSELLVILLE SCHOOL DISTRICT AWCC# H203260 July 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MARTINEZ_LIBRADO_H203260_20250714.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARTINEZ_LIBRADO_H203260_20250714.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H203260 \n \nLIBRADO MARTINEZ, Employee CLAIMANT \n \nRUSSELLVILLE SCHOOL DISTRICT, Employer RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 14, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nRussellville, Pope County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents   represented   by JARROD   PARRISH,   Attorney   at   Law, Little   Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On May  22,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at \nRussellville,  Arkansas.      A  pre-hearing  conference  was  conducted  on November  13, \n2024,  and  a pre-hearing  order  was  filed on that  same  date. A  copy  of  the  Pre-hearing \nOrder  has  been  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record \nwithout objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  this \nclaim. \n 2.  Claimant  sustained  compensable  injuries  to  his  right  hand,  right  knee,  low \nback and left ankle on July 21, 2022. \n\nMartinez – H206340 \n \n-2- \n At the time of the hearing, the parties agreed to stipulate that claimant earned an \naverage weekly wage of $543.12 which would entitle him to compensation at the rates \nof  $362.00  for  temporary  total  disability  benefits  and  $272.00  for  permanent  partial \ndisability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Claimant’s  entitlement  to  medical  treatment  from  Dr.  Ahmad  Rafi  and  Dr. \nGautam Ghandi. \n 2. Temporary total disability benefits from date of last payment through a date yet \nto be determined. \n 3. Attorney fee. \n The  claimant  contends he  sustained  compensable  injuries  to  his  low  back,  right \nhand, left foot/ankle as well as his right knee in the employment related accident of July \n21, 2022. He further contends that he has continued to require medical services for his \nback  injury,  from  which  Dr.  Rofi  and  Dr.  Ghandi  directed.  He  has  continued  to  be \ntemporarily totally disabled by this back injury. Finally, he contends that the respondents \nhave controverted his entitlement to any benefits for these injuries. \n The  respondents  contend that  all  appropriate  benefits  have  been  paid  with \nregard to this matter. The claimant has sought and received unauthorized medical care \nunbeknownst  to  respondents.  It  is  respondents’  position  that  they  are  not  liable  for \nmedical care that was not approved.  \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \n\nMartinez – H206340 \n \n-3- \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on November 13, 2024, and contained in a pre-hearing order filed that same \ndate are hereby accepted as fact. \n 2. The parties’ stipulation that claimant earned an average weekly of $543.12 \nwhich  would  entitle  him  to  compensation  at  the  rates  of  $362.00  for  temporary  total \ndisability benefits and  $272.00  for  permanent  partial  disability  benefits  is  also  hereby \naccepted as fact. \n 3.  Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  payment  of  medical  treatment  provided  by  Dr.  Rafi  and  Dr.  Gandhi.  The \nmedical   treatment provided by   those   physicians   was   unauthorized;   therefore, \nrespondent is not liable for payment. \n 4.  Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  additional  temporary  total  disability  benefits  for  his  compensable  low  back \ninjury. \n \nFACTUAL BACKGROUND \n Claimant  is  a  50-year-old  man  with  one  year  of  college  education.  He  was \nemployed by respondent to perform janitorial work at various schools in respondent’s \ndistrict. He testified that on July 21, 2022, he opened the door on a truck to remove an \n\nMartinez – H206340 \n \n-4- \nindustrial  floor  machine.  The  machine  had  not  been  strapped  down,  and  when  he \nopened the door, the machine rolled down the ramp; clipping his foot and knocking him \nover. The machine then ran over a portion of his body. \n Claimant immediately reported the accident to his supervisor and was instructed \nto  call  a  hotline  number  and  an  appointment  was  made  for  medical  treatment.  The \nparties have stipulated that as a result of the accident, claimant suffered compensable \ninjuries to his right hand, right knee, low back, and left ankle. \n After some initial medical treatment, claimant filed a Change of Physician request \nwith  the  Commission.  A  Change  of  Physician  Order  was  filed  by  Jay  O.  Howe  on \nOctober 26, 2022, approving a change of physician from the Millard-Henry Clinic to Dr. \nVictor Vargas, an orthopedic surgeon in Little Rock. \n Claimant’s initial evaluation with Dr. Vargas occurred on December 13, 2022. \nWith respect to claimant’s low back complaints, Dr. Vargas noted that claimant stated \nthat  his  back  pain  was  exacerbated  by  physical  therapy.  Dr.  Vargas  ordered  an  MRI \nscan and prescribed medication. The lumbar MRI scan was performed on January 18, \n2023,  and  indicates a disc  protrusion  at  L5-S1. This protrusion is interpreted  as a \ndegenerative change according to the MRI report.  \n Claimant  returned  to  Dr.  Vargas  on  February  6,  2023,  and  in  his  report  of  that \ndate, Dr. Vargas stated that he discussed the MRI findings with claimant and his wife: \nI  explained  the  findings  are  considered  a  chronic  pathology \nat  L5-S1  but  there  is  no  evidence  of  acute  events  or \nrelationship  with  the  patient  accident  that  he  sustained  on \n7/21/2022. \n \n\nMartinez – H206340 \n \n-5- \n Nevertheless,  Dr.  Vargas  prescribed  lumbar  spine  physical  therapy  with  core \nmuscle strengthening and trunk stabilization. This therapy was to be performed at River \nValley Therapy and Sports Medicine. The documentary evidence contains a letter to Dr. \nVargas from River Valley stating: \nI  attempted  to  schedule  Mr.  Martinez  several  times  with  no \nsuccess. \n \n Claimant returned to Dr. Vargas on March 7, 2023, and Dr. Vargas again noted \nthat there was no evidence of acute events or fractures of the lumbar spine. He stated \nthat   since   there   were   no   objective   findings   he   had   recommended   symptomatic \ntreatment  in  the  form  of  physical  therapy.  He  noted  that  claimant  reported  physical \ntherapy  was  not  helping  but  that  according  to  the  physical  therapist,  claimant  was  not \nattending physical therapy sessions. He also noted: \nThe patient also was recommended to take NSAIDS that he \nhas declined to take. \n \n Dr.  Vargas  agreed  to  limit claimant  to  sedentary  work  but  stated  that  he  would \neventually be releasing claimant to work without restrictions. \n Before  he  was  released  by  Dr.  Vargas,  claimant  sought medical  treatment  from \nSavannah  Bradbury,  PA-C  for  Dr.  Gallaher  on  March  9,  2023,  for  his  low  back \ncomplaints.  She  noted  that  the  MRI  scan  revealed  degenerative  changes  that  could \nhave been exacerbated by an acute accident. She also prescribed physical therapy. \n On April 10, 2023, Dr. Vargas indicated claimant had reached maximum medical \nimprovement  and  no  further  treatment  would  be  necessary.  He  released  claimant  to \nreturn  to  work  with  no  restrictions  and  0%  impairment.  Claimant  did,  in  fact,  return  to \n\nMartinez – H206340 \n \n-6- \nwork for respondent for approximately a month before terminating his employment with \nrespondent.  \n Thereafter, for his low back, claimant sought medical treatment from Dr. Ahmad \nRafi and  Dr.  Gandhi.  Dr.  Rafi  provided  a  lumbar  epidural  steroid  injection  along  with \npain  medication.  Dr.  Gandhi  performed  a  laminectomy  infusion  procedure  at  L5-S1  on \nApril 22, 2024.  \n Respondent  has  not  accepted  liability  for  payment  of  the  medical  treatment \nprovided  by  Drs.  Rafi  or  Gandhi.  As  a  result,  claimant  has  filed  this  claim  requesting \npayment  for  medical  treatment  provided  by  Drs.  Rafi  and  Gandhi  and  requesting \npayment of additional temporary total disability benefits for his low back injury. \n \nADJUDICATION \n Initially, it should be noted that although the parties have stipulated that claimant \nsuffered compensable injuries to his right hand, right knee, left ankle, and low back; only \nmedical treatment for claimant’s low back from Drs. Rafi and Gandhi and temporary \ntotal  disability  benefits  related  to  the  back  injury  are  being  litigated.  In  addition,  I  note \nthat   after   the   laminectomy   infusion   procedure   on   April   22,   2024,   claimant   was \ndiagnosed  with  sacroiliac  dysfunction  and  underwent  a  second  procedure  by  Dr. \nGandhi.  In  his  post-hearing  brief,  claimant  notes  that  he  is  not  alleging  that  the \nsacroiliac issues are related to his accident. Because the issue being litigated involves \nclaimant’s compensable low back injury, medical reports addressing other conditions \nare not discussed unless they are deemed relevant to the low back issue.  \n\nMartinez – H206340 \n \n-7- \n Pursuant to Arkansas Workers’ Compensation law, an employer is to promptly \nprovide  for  an  injured  employee  such  medical  treatment  as  may  be  reasonably \nnecessary in connection with the injury received by the employee. A.C.A. §11-9-508(a). \nThe employer has the right to select the initial treating physician; however, an employee \nmay request a one-time change of physician. A.C.A. §11-9-514. Treatment or services \nfurnished  or  prescribed  by  any physician  other  than  the  one  selected  according  to  the \nchange  of  physician  rules,  except  emergency  treatment,  shall  be  at  the  claimant’s \nexpense. A.C.A. §11-9-514(b). \n A.C.A. §11-9-514 provides in pertinent part: \n(c)(1) After being notified of an injury, the employer or \ninsurance carrier shall deliver to the employee, in person or \nby  certified  or  registered  mail,  return  receipt  requested,  a \ncopy of a notice, approved or prescribed by the commission, \nwhich  explains  the  employee’s  rights and  responsibilities \nconcerning change of physician. \n(2)  If,  after  notice  of  injury,  the  employee  is  not \nfurnished a copy of the notice, the change of physician rules \ndo not apply. \n(3) Any unauthorized medical expenses incurred after \nthe employee has received a copy of the notice shall not be \nthe responsibility of the employer. \n \n In  this  case,  respondents  submitted  into  evidence  a  copy  of  Commission  Form \nAR-N dated July 21, 2022, signed by the claimant acknowledging that he had received \na  copy  of  the  front  and  back  of  the  form.  In  addition,  at  the  hearing  claimant \nacknowledged that his signature appeared on Form AR-N. Based upon this evidence, I \nfind that notice of the change of physician rules was provided to claimant as required by \nA.C.A.  §11-9-514  and  any  unauthorized  medical  expenses  after  that  date  are  not  the \nresponsibility of the respondent.  \n\nMartinez – H206340 \n \n-8- \n As previously noted, after some initial medical treatment, claimant filed a Change \nof  Physician  request  with  the  Commission.  A  Change  of  Physician  Order  was  filed  on \nOctober 26, 2022, approving a change of physician to Dr. Victor Vargas, an orthopedic \nsurgeon.  Dr.  Vargas  ordered  an  MRI  scan  which  interpreted  as  showing  degenerative \nchanges  only.  Based  upon  claimant’s  complaint,  Dr.  Vargas  referred  claimant  to \nphysical  therapy  at  River  Valley  Therapy.  Although  claimant  had  informed  Dr.  Vargas \nthat  physical therapy did  not  help  his  condition,  there  is  no  indication  that  claimant \nactually  received  physical  therapy  from  River  Valley  based  upon  the  recommendation \nby  Dr.  Vargas.  There  is  evidence  that  claimant  had  received  physical  therapy  at  River \nValley prior to his accident on July 21, 2022. \n As  noted,  the  documentary  evidence  contains  a  letter  to  Dr.  Vargas  from  River \nValley  Therapy  indicating  that  the  therapist  had  attempted  to  schedule  claimant  for \nphysical therapy several times “with no success”. In addition, Dr. Vargas in his report of \nMarch  7,  2023,  indicated  that  he  had  recommended  that  claimant  take  NSAIDS  but \nclaimant had declined to take that medication.  \n Thus, while claimant stated that in his opinion Dr. Vargas’ medical treatment was \n“worthless”, the evidence indicates that Dr. Vargas prescribed claimant physical therapy \nand  recommended  that  claimant  take  NSAIDS.  However,  claimant  did  not  attend  the \nrecommended physical therapy and declined to take the NSAIDS recommended by Dr. \nVargas.  Based  upon  this  evidence,  I  do  not  find  that  Dr.  Vargas  refused  to  treat  the \nclaimant. \n Based upon the findings and claimant’s refusal to attend physical therapy or take \nthe  NSAIDS,  Dr.  Vargas  did  eventually  release  claimant  to  return  to  work  with  no \n\nMartinez – H206340 \n \n-9- \nrestrictions. Significantly, Dr. Vargas did not indicate to claimant that he could not return \nfor further treatment if his symptoms warranted and there is no indication that claimant \nmade any effort to return to Dr. Vargas for additional medical treatment. In addition, at \nno point did claimant make any attempt to file a claim with the Commission requesting \nadditional medical treatment for his compensable low back injury. While claimant stated \nthat   respondent   did   not   offer   an   additional   medical   treatment   for   his   low   back \ncomplaints,  claimant  did  not  testify  that  he  ever  requested  any  additional  medical \ntreatment  for  his  low  back  complaints  from  the  respondent.  Instead,  claimant  chose  to \nseek  medical  treatment  for  his  low  back  complaints  on his  own. Claimant testified  that \nhe  went  to  his  primary  care  physician  who,  in  turn,  referred  him  to  Dr.  Rafi  for  pain \nmanagement. Dr. Rafi gave claimant an injection and eventually referred claimant to Dr. \nGandhi who eventually performed surgery.  \n Claimant acknowledged that he sought medical treatment on his own from these \nphysicians. \nQ Now,  after  you  initially  saw  Dr.  Vargas and got  some \ntreatment, did you seek a second opinion on your own? \n \nA Yes. \n*** \nQ And have you sought and obtained medical treatment \non your own? \n \nA Yes, I have. \n*** \nQ You agree Dr. Rafi and Dr. Gandhi were doctors that \nyou branched off and saw on your own, right? \n \nA That’s correct.  \n \nQ No  referral  for  either  of  them  from  Vargas,  Edwards, \nor anybody else that was approved by the Comp, right? \n\nMartinez – H206340 \n \n-10- \n \nA No. \n*** \nQ These  are  doctors  that  you  went  out  and  found  and \nwent and saw on your own outside of the Workers’ Comp \nsystem, right? \n \nA That isn’t correct because I disagreed with what Dr. \nVargas had to say. \n*** \nQ Dr.  Edwards  did  not  refer  you  to  your  primary  care \ndoctors; did he? \n \nA No. \n \nQ He didn’t refer you to any other doctors; did he? \n \nA No.  \n \nQ You  went  entirely  on  you  own,  and  you  agree  you \nknew you were going outside of the Comp claim to try to get \na different or separate opinion? \n \nA That’s correct. \n \nQ Now – \n \nA Because their second opinion was not good. \n \n Claimant  contends  that  by  refusing to  provide  any  additional  medical  treatment \nfor his low back complaints, he was free to seek medical treatment on his own from Drs. \nRafi and Gandhi. However, the evidence indicates that claimant was not happy with Dr. \nVargas’ treatment and claimant considered it to be “worthless”. According to the medical \nrecords,  even  before  Dr.  Vargas  stated  that  claimant  had  reached  maximum  medical \nimprovement  and  released  him  from  his  care,  claimant  sought  a  second  opinion  from \nSavannah  Bradbury,  in  Dr.  Gallaher’s  office  for  his  low  back  complaints.  Notably, \n\nMartinez – H206340 \n \n-11- \nBradbury  also  indicated  that  the  MRI  scans  showed  degenerative  changes  and  also \nprescribed physical therapy, just as Dr. Vargas had prescribed. \n There is no indication that claimant filed a claim with the Commission requesting \na hearing on his entitlement to additional medical treatment for his low back or that he \neven  asked  respondent  to provide  additional  medical treatment  for  his  low  back  injury. \nInstead, claimant simply chose on his own to seek medical treatment from Drs. Rafi and \nGandhi. Claimant  had  been  provided  notice  of  the  procedures  to  follow  in  order  to \nchange physicians by the respondent. In fact, claimant had filed a Change of Physician \nrequest  and  was  granted  a change  of physician  to  Dr.  Vargas  by  the  Commission. \nClaimant was unhappy with Dr. Vargas’ treatment and did not attend physical therapy \nsessions or take the NSAIDS recommended by Dr. Vargas. Once Dr. Vargas released \nclaimant,  claimant  simply  sought  medical  treatment  on  his  own  from  Drs.  Rafi  and \nGandhi. \n I  find  based  upon  the  evidence  presented  that  the  treatment  provided  by  Drs. \nRafi   and   Gandhi   was   unauthorized;   therefore,   pursuant   to   A.C.A.   §11-9-514, \nrespondent is not liable for payment of their medical treatment. \n The  next  issue  for  consideration  involves  claimant’s  request  for  additional \ntemporary total disability benefits for his compensable low back injury. Even though the \nmedical treatment by Dr. Rafi and Dr. Gandhi has been determined to be unauthorized, \nclaimant may still be entitled to payment of temporary total disability benefits. In order to \nbe entitled to temporary total disability benefits claimant must prove by a preponderance \nof  the  evidence  that  he  remains  within  his  healing  period  and  that  he  suffered  a  total \n\nMartinez – H206340 \n \n-12- \nincapacity to earn wages. Arkansas State Highway & Transportation Dept. v. Breshears, \n272 Ark. 244, 613 S.W. 2d 392 (1981).  \n After reviewing the evidence, I find that claimant has failed to meet his burden of \nproof. \n Initially,  I  note  that  claimant  has  acknowledged  in  his  post-hearing  brief  that  he \nwas released to return to work at regular duty on April 10, 2023, by Dr. Vargas and he \ndid return to work for the respondent. Claimant’s brief also acknowledges: \nThe claimant’s testimony is somewhat vague about the last \nday of employment, or was the reason for the ending of the \nemployment. \n \n The  brief  also acknowledges  that  when  he  saw  Dr.  Rafi  on  August  3,  2023,  Dr. \nRafi noted that claimant was not presently working but he did not take claimant off work \nor  restrict  his  activities.  Instead,  claimant  contends  that  the  surgery performed  by  Dr. \nGandhi on April 22, 2024, would have rendered him incapable of working. \n Based upon the evidence presented, I find that claimant has failed to prove that \nhe remained within his healing period for his compensable injury as opposed to a pre-\nexisting condition. First, it should be noted that claimant had a history of low back pain \nprior  to  his  accident  with  the  respondent.  At  the  hearing,  claimant  at  times  denied \nhaving  any  prior  low  back  pain  and  at  other  times  indicated  that  he  did  not  recall  that \nback pain. With respect to this testimony, even claimant’s brief admits that contrary to \nhis  testimony  he  had  periodic  bouts  of  back  pain  and  aches.  However,  claimant \ncontends that although x-rays were taken, no further testing or treatment was provided \nor  recommended  for  those  low  back  complaints.  I  would  disagree.  The  documentary \nevidence contains a report from Dr. Stanley Teeter dated November 14, 2017, at which \n\nMartinez – H206340 \n \n-13- \ntime  claimant  was  seen  for  various  complaints  including  “lumbar  radiculopathy”.  Dr. \nTeeter’s medical report states: \nHe  also  wants  to  talk  about  his  legs.  He  says  that  about \nJune  his  right  lower  leg  especially  has  episodes  in  which  it \nfeels numb and tingly below the knee and then the whole leg \ngets numb and tingly and then it gives way or “goes out” on \nhim.  The  tingly  sensation  sometimes  radiates  up  into  the \nright buttocks. He remembers no previous back injury. \n \n Based  upon  claimant’s  symptoms,  Dr.  Teeter  recommended  an  MRI  scan  of \nclaimant’s  lumbar  spine  and  sacrum.  The  lumbar  MRI  scan  was  performed  on \nNovember 29, 2017, and revealed a disc protrusion at the L5-S1 level. Notably, this is \nthe same level at which Dr. Gandhi performed claimant’s surgery in April 2024.  \nMedical  records  after  the  lumbar  MRI  scan  reveal  that  claimant  continued  to \ncomplain  of  neuropathy  and  lumbar  back  pain.  The  medical  report  from  Dr.  Jackson \ndated August 17, 2018, indicates that claimant has a decreased range of motion in his \nlumbar  spine and  lumbar  pain.  Likewise,  the  report  from  Dr.  Jackson  dated  November \n19,  2018,  also  notes  back  pain  and  a  decreased  range  of  motion.  Back  pain  and a \ndecreased range of motion is also reflected in Dr. Jackson’s report of June 13, 2019. \nClaimant was eventually referred to River Valley Therapy for a neuromuscular disorder \nand claimant indicated that he was suffering from back pain at this time. Claimant  also \ncompleted a form indicating that other health problems included back pain. A review of \nthe  physical  therapy  notes  indicates  that  claimant  was  making  no  progress  with  his \nphysical therapy and that he was describing his pain as a 10 on a 10-point scale. The \ntherapist  note   of   March   3,   2022,   indicates   that   claimant   was   demonstrating an \ninconsistent pain report from visit to visit. The physical therapist’s report of March 8, \n\nMartinez – H206340 \n \n-14- \n2022, indicates that claimant did not feel like therapy was helping him but was causing \nadditional pain. According to that report: \nHe  reports  he  is  only  doing  it  because  it  is  required  by \ninsurance to get an MRI although now he doesn’t feel like an \nMRI  is  going  help  any.  He  states  he  can  tell  he  is  already \npartially disabled. \n \n Claimant  was  discharged  from  physical  therapy  on  March  17,  2022,  and  the \ndischarge summary indicates that claimant did not have any relief from his symptoms or \nmake progress toward his goals. \n All  of  this  medical  existed  prior  to  claimant’s  injury  with  the  respondent.  As \npreviously noted, Dr. Vargas was of the opinion that the changes shown on claimant’s \nMRI scan were degenerative in nature and did not show an acute injury. As a result, he \nrecommended physical therapy and the use of NSAIDS. Claimant did not appear for the \nphysical  therapy  sessions  and  declined  to  take  the  recommended  medication.  As  a \nresult, Dr. Vargas eventually released claimant to return to full duty work.  \n Although claimant subsequently came under the care of Dr. Rafi and Dr. Gandhi, \nI do not find that claimant has proven by a preponderance of the evidence that his low \nback complaints at that time are causally related to the injury which occurred on July 21, \n2022.  Therefore,  I  find  that  claimant  has  failed  to  prove  by  a  preponderance  of  the \nevidence  that  he  is  entitled  to  additional  temporary  total  disability  benefits  for  his  low \nback injury subsequent to his release by Dr. Vargas on April 10, 2023. \n \n \n \n\nMartinez – H206340 \n \n-15- \nORDER \n The  claimant  has  failed  to prove  by a  preponderance of  the evidence  that he  is \nentitled  to  payment  for  medical  treatment  for  his  low  back  he  received  from  Drs.  Rafi \nand  Gandhi.  Treatment  by  those  two  physicians  was  unauthorized  and  is  not  the \nresponsibility of the respondent. \n I   also   find   that   claimant  has   failed  to  meet  his  burden  of  proving   by   a \npreponderance of the evidence that he is entitled to additional temporary total disability \nbenefits for his compensable low back injury. Claimant has failed to prove that treatment \nby  Drs.  Rafi  and  Gandhi  is  causally  related  to  his  original  compensable  injury. \nTherefore, claimant’s claim for compensation benefits is hereby denied and dismissed. \nRespondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $850.50. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":25264,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H203260 LIBRADO MARTINEZ, Employee CLAIMANT RUSSELLVILLE SCHOOL DISTRICT, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT OPINION FILED JULY 14, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Russellville, Pope County,...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:2"],"injuryKeywords":["knee","back","ankle","lumbar"],"fetchedAt":"2026-05-19T22:38:29.588Z"},{"id":"alj-H306140-2025-07-14","awccNumber":"H306140","decisionDate":"2025-07-14","decisionYear":2025,"opinionType":"alj","claimantName":"Linda Johnson","employerName":"Murphy’s Market","title":"JOHNSON VS. MURPHY’S MARKET AWCC# H306140 July 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JOHNSON_LINDA_H306140_20250714.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_LINDA_H306140_20250714.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H306140 \n \n \nLINDA S. JOHNSON,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nMURPHY’S MARKET,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nBRIDGEFIELD CASUALTY INS. CO./ \nSUMMIT CONSULTING, LLC \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED JULY 15, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Thursday, July 10, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in El Dorado, \nUnion County, Arkansas. \n \nThe claimant, Ms. Linda S. Johnson, pro se, of Stephens, Ouachita County, Arkansas, failed \nand/or refused to appear at the hearing.  \n \nThe respondents were represented by the Honorable Jason Ryburn, Ryburn Law Firm, Little \nRock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A  hearing was  conducted  on Thursday,  July  10,  2025,  to  determine  whether  this  claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement)  and  Commission Rule  099.13  (2025 Lexis Replacement). On  two  (2)  separate \noccasions  the  respondents  filed  with  the  Commission  motions  to  dismiss  this  claim  without \nprejudice for lack of prosecution (MTDs). The respondents filed the first motion on January 14, \n2025, and the second on April 15, 2025. (Hearing Transcript; Respondents’ Exhibit 2).  \n\nLinda S. Johnson, AWCC No. H306140 \n2 \n \n       The claimant herein initially was represented by counsel, Mr. Gary Davis, of the Gary Davis \nlaw firm in Little Rock. Upon the claimant’s attorney’s motion and by order issued and filed on \nMarch 14, 2025, the ALJ granted the claimant’s attorney’s motion to withdraw as the claimant’s \nattorney  of  record.  (Commission’s Exhibit 1). As  mentioned  above,  immediately  thereafter  the \nrespondents filed their second MTD with the Commission on April 15, 2025. (RX2).  \n       The claimant was provided due and legal notice of the both of the respondents’ MTDs, as well \nas the date, time, and place of the subject hearing; however, she failed and/or refused to file any \nresponse, via email or otherwise, or to respond to the MTD or hearing notice in any way. In fact \nthe claimant has been nonresponsive and noncommunicative with either her attorney when she had \none, and with the Commission. \n       The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. (Hearing Transcript; Comms’n Ex. 1; and Respondents’ Exhibits 1 and 2).  \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to either actively prosecute her claim or to request a \nhearing in the last six (6) months. She also has been totally nonresponsive and noncommunicative \nto bother her attorney when she was represented by him and with the Commission. \n\nLinda S. Johnson, AWCC No. H306140 \n3 \n \n       Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having received due  and  legal  notice  of both the respondents’  MTDs without \nprejudice filed with the Commission on January 14, 2025, and on April 15, 2025, as well \nas notice  of the date, time,  and  place of  the  subject  hearing; however,  she  failed  and/or \nrefused to respond and/or object to the respondents MTDs, or to take any steps to actively \nprosecute her claim. Therefore, the claimant is deemed to have waived her right to a hearing \non the subject MTD. \n \n3. The claimant has failed and/or refused to request a hearing within the last six (6) months.  \n \n4. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwithout prejudice filed April 15, 2025, should be and hereby is GRANTED; and this claim \nis dismissed without prejudice to its refiling pursuant to the deadlines prescribed by Ark. \nCode Ann. Section 11-9-702(a) and (b) and Commission Rule 099.13. \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n                                                                                             Administrative Law Judge \n \n \n \n \n \n \n \n \nMP/mp \n \n                                                                                \n \n\nLinda S. Johnson, AWCC No. H306140 \n4","textLength":5975,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306140 LINDA S. JOHNSON, EMPLOYEE CLAIMANT MURPHY’S MARKET, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INS. CO./ SUMMIT CONSULTING, LLC CARRIER/TPA RESPONDENT OPINION FILED JULY 15, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:38:31.655Z"},{"id":"full_commission-H101491-2025-07-09","awccNumber":"H101491","decisionDate":"2025-07-09","decisionYear":2025,"opinionType":"full_commission","claimantName":"Earvin Davis","employerName":"Bernhard Mcc, LLC","title":"DAVIS VS. BERNHARD MCC, LLC AWCC# H101491 July 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Davis_Earvin_H101491_20250709.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Davis_Earvin_H101491_20250709.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H101491 \n \nEARVIN DAVIS, JR., \nEMPLOYEE \n \nCLAIMANT \nBERNHARD MCC, LLC,  \nEMPLOYER \n \nRESPONDENT \nTRAVELERS PROPERTY CASUALTY OF \nAMERICA, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JULY 9, 2025  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \n \n ORDER \n The claimant has filed a second request for an extension of time in \nwhich to file his brief.  The Full Commission grants the request.     \n An administrative law judge filed an opinion on April 4, 2025.  The \nadministrative law judge found, among other things, that the claimant failed \nto prove he sustained a compensable injury.  The claimant filed a notice of \nappeal to the Full Commission, and the Clerk of the Commission \nestablished an initial briefing schedule.  The claimant subsequently \nrequested a 21-day extension, and the Clerk of the Commission established \na revised briefing schedule.   \n\nDAVIS - H101491  2\n  \n \n \n   The claimant now requests a 10-day extension of time in which to \nfile his brief.  The respondents state that they do not object to a reasonable \nextension.  Therefore, we direct the Clerk of the Commission to establish a \nfinal briefing schedule.   \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1722,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H101491 EARVIN DAVIS, JR., EMPLOYEE CLAIMANT BERNHARD MCC, LLC, EMPLOYER RESPONDENT TRAVELERS PROPERTY CASUALTY OF AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JULY 9, 2025","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.145Z"},{"id":"alj-H304338-2025-07-09","awccNumber":"H304338","decisionDate":"2025-07-09","decisionYear":2025,"opinionType":"alj","claimantName":"Betty Cervantes","employerName":"Factory Connection LLC","title":"CERVANTES VS. FACTORY CONNECTION LLC AWCC# H304338 & H402579 July 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CERVANTES_BETTY_H304338_H402579_20250709.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CERVANTES_BETTY_H304338_H402579_20250709.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H304338 & H402579 \nBETTY CERVANTES, EMPLOYEE      CLAIMANT \n \nFACTORY CONNECTION LLC, EMPLOYER          RESPONDENT  \n \nTRAVELERS PROPERTY AND CASUALTY \nOF AMERICA/TRAVELERS INDEMNITY \nCOMPANY (THE), INSURANCE CARRIER/TPA         RESPONDENT \n \nOPINION FILED JULY 9, 2025 \nHearing before Administrative Law Judge, James D. Kennedy, on the 21\nST\n day of May, \n2025, in Mountain Home, Arkansas. \nClaimant is represented by Mark Alan Peoples, Attorney at Law, Little Rock, Arkansas. \nRespondent is represented by Amy C. Markham, Attorney at Law, Little Rock, \nArkansas. \nSTATEMENT OF THE CASE  \nA hearing was conducted on the 21\nst\n day of May, 2025, and the parties agreed at \nthe time of the hearing to narrow and clarify the issues and to only litigate the claim of \nJune 27\nth\n, 2023, claim H304338.  The 2024 claim was reserved at the time of the hearing.  \nThe issues before the Commission at the time of the hearing were the compensability of \nclaimant’s alleged injuries to her right knee on June 27, 2023, medical treatment for the \ninjury, TTD from the date of injury to April 29, 2024, and attorney fees.  All other issues \nwere reserved.   \nThe parties stipulated that the Arkansas Workers’ Compensation Commission had \njurisdiction  of  the  claim and  due  to  only  the  June  27\nth\n claim  being  litigated, the parties \nfurther stipulated that the employer/carrier/employee relationship existed on June 27th, \n2023, the date the claimant alleged she sustained the compensable injuries to her right \nknee, and that she earned  an  average  weekly  wage  sufficient to  entitled  her  to  the \n\nBETTY CERVANTES – H304338 & H402579 \n2 \n \nmaximum  compensation  rates  for  temporary  total  disability  and  permanent  partial \ndisability.  The employer controverted the claim in its entirety.  A copy of the Pre-hearing \norder was marked “Commission Exhibit 1” and made part of the record without objection.  \n The claimant’s and respondent’s contentions were all set  out  in  their  respective \nresponses  to  the  Pre-hearing Questionnaire  and  made  a  part  of  the  record  without \nobjection.  Since at the time of the hearing, the parties agreed to only litigate the injury \nalleged  on  June  27,  2023,  the  relevant  contentions  applicable  to  this  hearing  by  the \nparties are that the claimant contended she sustained a work injury to her right knee on \nor about June 27, 2023, and the respondents contended that the claimant did not sustain \ninjuries per statutory definition and that there was no medical evidence of an injury, as \nalleged by the claimant.  The witnesses consisted of the claimant, Elizabeth Cervantes, \nand Sarah Stanford, the HR person for the respondents.  From a review of the record as \na  whole, to  include medical  reports  and other  matters  properly  before  the Commission \nand having had an opportunity to observe the testimony and demeanor of the witnesses, \nthe  following findings of  fact  and  conclusions  of  law are made  in accordance  with  Ark. \nCode Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That an employer/employee relationship existed on June 27\nth\n, 2023. \n3. The  claimant  earned  an  average  weekly  wage sufficient  to  entitle  her  to  the \nmaximum  compensation  rates  for  temporary  total  disability  and  permanent \npartial disability.   \n\nBETTY CERVANTES – H304338 & H402579 \n3 \n \n4. That  the  claimant has failed  to satisfy  the  required burden  of  proof by  a \npreponderance of the credible evidence that she suffered a compensable work-\nrelated injury to her right knee on June 27\nth\n, 2023. \n5. That, consequently, all other issues are moot. \n6. If  not  already  paid,  the  respondents are ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The Pre-hearing Order along with the Pre-hearing questionnaires of all the parties \nwere admitted into the record without objection. The claimant submitted medical records \nthat were admitted without objection. The respondents also submitted medical and non-\nmedical exhibits along  with  a video, which  were all admitted  without  objection. The \nclaimant was  the  first  witness to  testify. She  testified  that  she  worked  at  Factory \nConnection  and  got  hurt  on  the  job  back  in  June  of  2023, while working as  the  store \nmanager.  She testified  that  she was  in  charge  of hiring,  putting out  freight, processing \nfreight, making sure everything was put out on the floor, and training employees on the \ncash register, along with taking care of the customers. She worked a regular forty-hour \nweek, but at times worked seven days a week. She performed administrative work as well \nas physical labor. (Tr. 9 - 11) At the time of her injury, she was training a new employee \non the cash register. She was standing by the new employee when she stepped away to \ngive a customer change and her foot hit the side of the mat she was standing on. She \ntripped over the mat, which was about an inch thick, and her foot went out and her knee \nwent in. She could see her knee starting to swell, but she continued to work because she \nwas  the  only one at  work that  day.  She  reported  the  injury  to  Alicia  Ross,  her  district \n\nBETTY CERVANTES – H304338 & H402579 \n4 \n \nmanager, who instructed her to report it to HR. The claimant went on to testify that she \ndid not want to report it because she was the sole income for her household. She then \ncontacted Sarah Stanford, who put her in contact with the insurance company. She felt \nthat she injured the meniscus of her right knee. (Tr. 12 – 14) \n The claimant admitted she had previous issues with the meniscus of her right knee.  \nPrior to the incident, she stated she was not having problems with the right knee. She \nhad previously tripped over a camera cord at work and had injured her meniscus. She did \nnot report the incident because her husband was suffering from a spinal cord injury and \nwas temporarily unable to walk. She testified she did inform Alicia about her surgery and \ntook two days off from work, which were her regular scheduled days off for the meniscus \nrepair. She had previously injured her meniscus while working for Subway back in 2008, \nwhere she slipped on a wet floor. All the problems were with her right knee. She was not \nhaving problems performing her job. (Tr. 15, 16) \n She  talked  to  the  adjuster  and told  him  she  had already set  up  a  doctor’s \nappointment with the doctor who had previously treated her knee in 2022, and she did \nthis after she heard her knee pop, and the swelling began. “I called them, because I was \nlike, I think I re-tore my meniscus.” “I told them I didn’t want to report it if it was just my \nmeniscus, because it’s preexisting.” She was glad when Alicia instructed her to report it \nbecause it was worse than just a meniscus tear. “It was - - I tore cartilage on my kneecap, \nand I’ve never had issues with the cartilage on my kneecap, and that was way more \nsevere than just a basic two-day resting where I would recover quickly from a meniscus \nrepair.” She continued to work but stated the environment became too much for her to \ncontinue. “I was physically able to work.” She had surgery in August after they had time \n\nBETTY CERVANTES – H304338 & H402579 \n5 \n \nto regrow her cells to be transplanted to her kneecap. She returned to work two weeks \nafter the surgery. (Tr. 17 – 19) She went on to state that she was doing much better.  “I \nhad another surgery not that long ago because my knee just didn’t heal correctly from the \nsecond - - from the previous one, so I just had surgery like over a month ago, which did \nhelp.” (Tr. 21) \n Under  cross  examination,  the  claimant  was  questioned  if  she  went  to  see  the \ndoctor who she first treated with at Knox Orthopedics, and did she tell the doctor she was \ninjured at work.  Her response was “I don’t remember. I don’t recall.” She admitted to not \nreviewing her medical records. She was then asked whether her medical records of July \nthe 12\nth\n, 2023, provided that the symptoms began as a result of a gradual and insidious \nonset and her having chronic knee pain. “Do you remember telling your doctor that? She \nresponded, “No. I remember we had a discussion about that in 2022, but I do not recall \nhim - - us  having  a  discussion  of  that  when  I  went  to  go  see  him  for  this  incident  that \nhappened on June 27, 2024.” She did not know why those statements would appear in \nher medical record, but did admit she had one surgery on her right knee in 2023. (Tr. 21, \n22) \nThe claimant admitted going to see her PCP, Dr. Pritchard, when she injured her \nknee  after  she  tripped  over  the  cord and  stated that Dr.  Pritchard  referred  her  to  Dr. \nFranklin. Because of her insurance, they had to wait to obtain approval for an MRI. She \nthen testified that Dr. Pritchard of Knox Orthopedics performed the surgery in October of \n2022.  (Tr.  23) The  claimant  was  questioned  about  her  medical  record  from  Knox \nOrthopedics dated  July  12\nth\n,  2023,  and which  provided  the  claimant believed her  knee \nwas struck from the side. The claimant responded, “I did not tell him that.”  She denied \n\nBETTY CERVANTES – H304338 & H402579 \n6 \n \nher knee ever being struck from the side, and responded “My foot struck the mat from the \nside.” The claimant agreed her knee was not struck from the side and stated that “I hit my \nfoot against the mat, and I tripped over it, the way it happened, my knee went in.” She \nalso denied her knee being struck from the side prior to the surgery on the right knee in \n2022, stating that she tripped over a blue cable cord. She stated the doctor must have \nmisunderstood what she said. “I’ve never said that my knee was struck  from  the  side, \nbecause that would be false.” (Tr. 24, 25)   \nThe claimant was questioned about her diagnosis of medial meniscal degeneration \nand lateral femoral condyle chondromalacia. She responded that she did not understand \nwhat that meant but went on to state that she knew that her meniscus “wasn’t well.” (Tr. \n26)  The  claimant  further  testified  she  did  talk  to  Sarah  Stanford  and  told  her  what \nhappened at work and was aware that there was a video of the incident, stating “There’s \ncameras everywhere.” When asked if she had viewed the video, the claimant stated that \nwhen  she  went  back  to  look  at  the  video,  it  was  deleted.  She  also  testified  that  two \ncustomers  and  Steven  heard  her  scream  at  the  time  of  her  injury, but  she  did  not \nremember who the customers were, and she was no longer in touch with Steven. (Tr. 27, \n28) At this point the claimant rested. \nThe respondents then called Sarah Stanford, who is employed as the HR Director \nfor the respondent, Factory Connection LLC. Ms. Stanford will have been employed by \nthe  respondent  for  14 years  in  August. She testified  the  claimant  had  reported  injuries \nmultiple times. “The first, I believe, was the June 27\nth\n incident, where she knocked her \nfoot against the mat, and then the second was in August of 2024, I believe.” On the June \n27\nth\n reporting with her knee, “She stated that she knocked her foot against the register \n\nBETTY CERVANTES – H304338 & H402579 \n7 \n \nmat  and  that  she  felt her  knee  turn  inward. She  also  stated  that  she had a preexisting \ncondition, and she had not wanted to report it initially, but her district manager had her do \nso anyway.” She went on to state there was video that captured the incident involving Ms. \nCervantes and she was able to capture and preserve it and that it was the video that was \npart of the evidence. She also admitted that she took notes of the conversation with the \nclaimant and the notes stated it was a preexisting condition, her foot hit the side of the \nmat, and right knee turned inward. She felt a tear in her right knee and called her treating \ndoctor for a follow-up appointment  on  the  12\nth\n. The  claimant  stated  that the injury was \nwork-related due to a preexisting condition. Ms. Stanford went on to testify that she did \nthis while on the phone with the claimant, as she always did in similar situations. (Tr. 29 \n– 31)  She  also  testified  the  claimant  never  reported  that  she  struck  her  knee  from  the \nside. (Tr. 32) \nUnder cross examination, Ms. Standford was asked how she knew the video that \nshe reviewed was what the claimant reported, and her response was “I looked at the time \nthat  she  reported  it, and  I  looked at the  day.” She agreed that she did see  her  foot hit \nagainst the mat. (Tr. 33) \nThe claimant was then recalled for rebuttal testimony. The claimant was shown the \nnotes by Ms. Stanford and asked if she ever told Ms. Stanford the injury, she reported \nwas not work related and she denied making the statement. She went on to state she told \nher  that  she  had  spoken to  Alicia, who  had  told  her  to  call  HR  and  tell  them  what \nhappened.  “So, I let her know that I was training an employee, that when I turned around \nto come forward, my foot hit the mat, and when it hit the mat, I felt a pop, and my knee \nwent inward, and I went sideways, and the gentleman went out to try to catch me.”  I did \n\nBETTY CERVANTES – H304338 & H402579 \n8 \n \ntell her I didn’t want to report it because I thought at the time that it was my meniscus, \nwhich was a preexisting condition. (Tr.34) She went on to testify she had spoken to the \nadjuster and had let him know it wasn’t just her meniscus and “I would like to pursue it to \ntry to get medical care if it was something severe. And it ended up being something more \nthan just my meniscus.”  (Tr. 35)     \nThe first evidence introduced into the record without objection will be the claimant’s \nmedical evidence consisting of 18 pages. A note from Knox Orthopedics dated July 12, \n2023,  provided  that  the  claimant  presented  for  an  evaluation  of  right  knee  pain  on  the \ninside of the knee. “Symptoms began as a result of a gradual and insidious onset and \nhaving chronic knee pain. The pain is acute and aching.” Under plan, the report provided \nfor a right knee internal derangement. “I scoped this knee in October 2022, she had  a \ncomplex tear of the posterior body and horn of the medial meniscus. She got complete \nrelief  from  the  first  surgery.  About  two  weeks  ago,  she  sustained  another  buckling \naccident, I believe her knee was struck from the side, and now she again has mechanical \nsymptoms  like  clicking,  catching,  locking.  Tried  to  deal  with  this  on  her  own  couple  of \nweeks, but it continues to get worse.” (Cl. Ex. 5, P. 1) \nThe  claimant  returned  to  Knox  Orthopedics  on  July  31,  2023,  for  an  MRI.  The \nreport provided for a fraying at the free edge of the medical meniscus with truncation at \nthe body and stated the medial collateral ligament was normal.  There was “no evidence \nof  lateral meniscal  tear.” Under  impression,  the  report  provided  for  medial  meniscal \ndegeneration and lateral femoral condyle chondromalacia. (Cl. Ex. 5, P. 2) The claimant \nthen returned to Knox Orthopedics again on August 8, 2023. The report provided that the \nclaimant  was  suffering  from  right  lateral  femoral  condyle  chondromalacia  which  had \n\nBETTY CERVANTES – H304338 & H402579 \n9 \n \nbecome  quite  disabling  for  the  claimant.  The  claimant  stated  that  she  would  like  to \nproceed to surgery. The report provided that the claimant had a knee arthroscopy in 2008, \nand  another  arthroscopy  with  a  meniscectomy  in  October  of  2022,  along  with  other \nunrelated  procedures.  (Cl.  Ex.  5,  P.  3,  4) The discharge  document  provided that the \nclaimant could walk and bear weight on the leg that received the surgery. (Cl. Ex. 5, P. 5, \n6)  The operating note of August 23, 2023, by Doctor Franklin, provided that the claimant \nwas found to have had a large unstable, contained, focal chondral defect in the lateral \nfemoral condyle, plus multiple loose osteochondral bodies, a high-grade chondromalacia \nin the weightbearing lateral tibial plateau, and a small partial tear of the lateral meniscal \nroot as well. (Cl. Ex. 5, P. 7 - 12)   \nThe claimant returned to Knox Orthopedics on September 14, 2023, and Doctor \nFranklin, provided that the visit was a post-op right knee follow up.  The report provided \nthe claimant still suffered from some pain located anteriorly over the knee, and that he \nwould provide a corticosteroid injection to see how she responded. (Cl. Ex. 5, P. 13, 14) \nThe claimant returned again to Knox Orthopedics and Doctor Franklin on December 14, \n2023, and that report  provided  the  claimant  was  miserable,  and  was  again  ready  for \nsurgery. (Cl. Ex. 5, P.15) A report provided that the claimant was evaluated on January \n10,  2024,  and  had  been  placed  on  the  surgery  schedule  for  autologous  chondrocyte \nimplantation of February 14, but the surgery was going to need to be rescheduled due to \na family event for the claimant, and consequently, the procedure was just canceled.  (Cl. \nEx. 5, P. 16) \nIt  appears  that  another  surgery  was  performed  by  Doctor  Franklin  on  August  8, \n2024, for a right knee chondral defect of the lateral femoral condyle, with a postoperative \n\nBETTY CERVANTES – H304338 & H402579 \n10 \n \ndiagnosis of a right chondral defect of the lateral femoral condyle and right chondral defect \nof  the  trochlea and  a  right  knee medial  meniscus  tear  at  the  horizontal,  junction of  the \nposterior body/horn. (C. Ex. 5, P. 17, 18)    \nRespondents introduced 21 pages of medical records without objection.  The initial \nreport was dated September 23, 2022, from Knox Orthopedics and Doctor Franklin, and \nprovided for a right medial meniscus tear of the right knee.  The report further provided \nthat  the  claimant  had  not  been  successful  in  conservative  care  of  the  right  knee  and \nsurgery  was  performed  on  October,12,  2022.  (Resp.  Ex.  4A,  P.  1 – 3)  The claimant \nreturned to Doctor Franklin on July 12, 2023, and presented with right knee medial joint \ntenderness, with guarding due to pain with no joint space narrowing.  The report went on \nto  provide  for  internal right  knee  derangement.  (Resp.  Ex.  4A,  P. 4 – 5)  The  evidence \nprovided  the  claimant  returned  to  see  Doctor  Franklin  on  August  8,  2023,  and  was \nprovided surgery at the Baxter Regional Medical Center, as described supra. (Resp. Ex. \n4A, P. 7 – 12) \nA  radiology  report  dated  April  22,  2024,  and  provided  by  Dr.  Jamie  Pritchard, \nprovided the claimant had a mature bony skeleton and a slight indication for a narrowed \njoint space in the medial knee and that this was unchanged from previous films.  There \nwas  no  evidence  for  an  acute  injury  of  fracture.  (Resp.  Ex.  4A,  P.  13) Additionally  the \noperative report dated August 8, 2024, regarding the surgery on the day before, was also \nintroduced and was discussed above in the evidence of the claimant. (Resp. Ex. 4A, P. \n14, 15) \nFinally,  the  last  medical  evidence  introduced  by  the  respondents  was  an \nOrthopedic Surgery Peer Review Report by Gotham City Orthopedics dated November \n\nBETTY CERVANTES – H304338 & H402579 \n11 \n \n20, 2024.  The report provided that a Board-Certified Orthopedic Surgeon, Doctor Sean \nLager,  had  been  requested  to  review the  claimant’s  medical  file.  He  stated  that  no \ndoctor/patient  relationship  had  been  established.  He  provided  in  his  report  that  the \nclaimant and been involved in two work related incidents, the one dated June 27, 2023, \nwhere the claimant was stepping down from the ladder, and stepped hard causing some \nright knee pain, and the one dated April 13, 2024 where the claimant was standing at a \ncash register and her flip flop caught on the edge of a mat causing her to slip but not fall.  \nHe  opined  in  his  report  that  based  upon  the  medical  records  reviewed,  the  diagnosis \nindicated  a  pre-existing  condition  in  regard  to  the  medial  meniscus  degeneration  and \nlateral femoral condyle chondromalacia. (Resp. Ex. 4A, P. 16 – 21) \nThe  respondents  also  introduced  two  pages  of  non-medical  evidence  that  was \nintroduced into evidence without objection.  The first document consisted of notes taken \nby the HR person from a phone interview with the claimant and provided that the claimant \nhad stated that she had a pre-existing condition, and her foot hit the side of a mat and her \nright knee turned inward and she felt that the injury was work related. (Resp. Ex. 4 B, P. \n1)   \n A DVD of the claimant working behind the cash register and stepping on and off \nthe mat was admitted into evidence without objection.  The video, which was reviewed \nmultiple times, was dated June 27, 2023.  The video showed the claimant and another \nindividual, a male and who appeared to be the person being trained, working behind the \ncash register.  There was a mat on the floor.  It appeared there were other shoppers in \nthe  facility  at  the  time  of  the  video.    The  claimant  stepped  on  and  off  the  mat  multiple \ntimes and there was nothing that showed the claimant tripping, falling, grabbing her knee, \n\nBETTY CERVANTES – H304338 & H402579 \n12 \n \nor acting like she suffered a sudden onset of pain. She did touch and briefly rub her right \nknee at one point.  Nothing appeared in the video that showed that the claimant’s right \nknee  was struck from  the  side.    Towards  the  end  of  the  video,  another  person,  who \nappeared  to  possibly  be  a  new  co-worker,  appeared  behind  the  cash  register.    No \ninteraction  was  observed  with  the  new  person  behind  the  counter  and  cash  register \nregarding the claimant’s knee. There is no evidence of anyone going to assist the claimant \ndue to any type of physical problem.  The claimant continued to move fluidly on and off \nthe low mat behind the cash register.  Although the video appears to be slightly sped up, \ndue to the method of filming or storage, the claimant appeared to ambulate well with a \nfluid gait and solid stance. (Resp. Ex. 4B, P. 2) \n \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving by a preponderance of the evidence that she is entitled to compensation benefits \nfor  the  injury  to her right  knee under the Arkansas Workers’ Compensation Law.  In \ndetermining  whether  the  claimant has  sustained her burden  of  proof,  the  Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party.  \nArk. Code Ann 11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \nFrom the medical reports submitted by both the claimant and the respondents, it \nappears the claimant clearly suffered from significant conditions and issues involving her \n\nBETTY CERVANTES – H304338 & H402579 \n13 \n \nright  knee  prior  to  the  alleged  incident involving  her  knee.   A  pre-existing  disease  or \ninfirmity  does  not  disqualify  a  claim  if  the  employment  aggravated,  accelerated,  or \ncombined with the disease or infirmity to produce the disability for which compensation is \nsought.    See Nashville  Livestock  Commission  v.  Cox,  302  Ark.  69,  787  S.W.2d  864 \n(1990); Conway Convalescent Center v. Murphee, 266 Ark. 985, 585 S.W.2d 462 (Ark. \nApp. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 S.W2d 550 (1996).  \nThe employer takes the employee as it finds him or her. See Murphee, supra.  \nThe medical evidence provided that the claimant presented to Knox Orthopedics \non July 12, 2023, for evaluation of right knee pain on the inside of her knee and the report \nprovided that the claimant’s “Symptoms began as a result of a gradual and insidious onset \nand having chronic knee pain.”  The report went on to provide that the knee had been \nscoped in October of 2022, where a complex tear of the posterior body and horn of the \nmedial meniscus were found and the claimant obtained complete relief from the surgery.  \nThe report also provided that the attending physician believed that the claimant’s knee \nwas struck from the side.  An MRI on July 31, 2023, provided for a fraying of the free edge \nof the medial meniscus but there was “no evidence  of  lateral  meniscus  tear.”  A  later \nreport  dated  August  8,  2023,  provided  that  the  claimant  was  suffering  from  medial \nmeniscal degeneration and lateral femoral condyle chondromalacia which had become \nquite disabling for the claimant. \nThe  medical  evidence  provided  that  the  claimant  had  previously  had a  knee \narthroscopy in 2008, another arthroscopy with a meniscectomy in October of 2022, along \nwith the surgery of her right knee on August 23, 2023, by Dr. Franklin.  Dr. Franklin opined \nthat claimant was found to have a large unstable, contained, focal, chondral defect in the \n\nBETTY CERVANTES – H304338 & H402579 \n14 \n \nlateral  femoral  condyle,  plus  multiple  loose  osteochondral  bodies  and  a  high-grade \nchondromalacia in the weight bearing lateral tibial plateau, and a small partial tear of the \nlateral meniscal root as well.  It appears that the last surgery occurred on August 8, 2024.  \nA radiology report dated April 22, 2024, provided there was no evidence of an acute injury \nor fracture involving the right knee.  It is also noted that the independent medical review \nby  Doctor  Sean  Lager  provided  that  in  his  opinion,  based  upon  the  medical  evidence \nreviewed, the diagnosis indicated a pre-existing condition in regard to medial meniscus \ndegeneration and lateral condyle chondromalacia.    \nA compensable  injury  must  be  established  by  medical  evidence  supported  by \nobjective findings and medical opinions addressing compensability and must be stated \nwithin  a  degree  of  medical  certainty. Smith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72 \nS.W.3d 560 (2002).  Speculation and conjecture cannot substitute for credible evidence.  \nLiaromatis v. Baxter County Regional Hospital, 95 Ark. App. 296, 236 S.W.3d 524 (2006).  \nMore  specifically,  to  prove  a  compensable  injury,  the  claimant  must  establish  by  a \npreponderance  of  the  evidence:  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment;  (2)  that  the  injury  caused  internal or  external  harm  to  the  body  which \nrequired  medical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported by objective findings, as defined in A.C.A. 11-9-102 (16) establishing the injury \nand (4) that the injury was caused by a specific incident and identifiable by time and place \nof occurrence.  If the claimant fails to establish any of the requirements for establishing \nthe  compensability  of  the  claim,  compensation  must  be  denied.   Mikel  v.  Engineered \nSpecialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  \n\nBETTY CERVANTES – H304338 & H402579 \n15 \n \nIn  the  present  matter,  it  is  understandable  why  the  claimant  may  have  initially \nstated that the problem with her right knee was pre-existing due to the previous surgeries \nand the need for her to maintain employment, since her husband was unable to work at \nthe time.  However, with that said, a compensable injury is one that was the result of an \naccident  that  arose  in  the  course  of  her  employment.    See Moore  v.  Darling  Store \nFixtures,23 Ark. App. 21, 432 S.W2d 496 (1987).  Here, the video of the incident that was \nintroduced into the record was viewed multiple times and showed the claimant stepping \non and off a very low mat.  There is nothing in the video to show that the claimant suffered \nany type of injury, or pain, due to hitting her foot on the side of the low mat on the floor \nbehind the cash register, or due to being hit on the side of her knee, although it was noted \nthat she did briefly rub her right knee at one point.  The video showed no one near her \nresponding to an incident involving the claimant where she appeared injured.  Further, \nthe treating physicians did not attribute the claimant’s right knee problem to her hitting her \nfoot on the side of the mat.  It was opined that the claimant was suffering from “internal \nright knee derangement.”  \n  Consequently, based upon the available evidence in the case at bar, there is no \nalternative but to find that the claimant has failed to satisfy the requirements to show that \nthe claimed right knee injury of June 27, 2023, is in fact work related and compensable \nunder the Arkansas Workers’ Compensation Act. \n  After reviewing all of the evidence, without giving the benefit of the doubt to either \nparty, there is no alternative but to find that the claimant has failed to satisfy the required \nburden  of  proof  by  a  preponderance  of  the  evidence  that  the  claimant  suffered  a \ncompensable work-related injury to her right knee on June 27, 2023.  Consequently, all \n\nBETTY CERVANTES – H304338 & H402579 \n16 \n \nremaining issues are moot.  If not already paid, the respondents are ordered to pay the \ncost of the transcript forthwith.   \nIT IS SO ORDERED. \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":29728,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304338 & H402579 BETTY CERVANTES, EMPLOYEE CLAIMANT FACTORY CONNECTION LLC, EMPLOYER RESPONDENT TRAVELERS PROPERTY AND CASUALTY OF AMERICA/TRAVELERS INDEMNITY COMPANY (THE), INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JULY 9, 2025 Hearing before Adminis...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["knee","back","fracture"],"fetchedAt":"2026-05-19T22:38:23.315Z"},{"id":"alj-H402408-2025-07-09","awccNumber":"H402408","decisionDate":"2025-07-09","decisionYear":2025,"opinionType":"alj","claimantName":"Debra Piatt","employerName":"Edgewood Health & Rehab","title":"PIATT VS. EDGEWOOD HEALTH & REHAB AWCC# H402408 July 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PIATT_DEBRA_H402408_20250709.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PIATT_DEBRA_H402408_20250709.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H402408 \n \nDEBRA PIATT, Employee CLAIMANT \n \nEDGEWOOD HEALTH & REHAB, Employer RESPONDENT \n \nCCMSI, Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 9, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents  represented  by CAROL  LOCKARD  WORLEY ,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On April  29,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.    A pre-hearing conference was  conducted on December 30, 2024, and a Pre-hearing \nOrder  was  filed  on January  7,  2025.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  June \n20, 2023. \n 3. The  claimant  sustained  a  compensable  injury  to  her  right  shoulder  on  or  about  June \n20, 2023. \n 4. The claimant’s weekly compensation rates will be determined at a later date. \n\nPiatt – H402408 \n \n-2- \n 5.  The  respondents  have  accepted  a  2%  permanent  impairment  rating  to  the  right \nshoulder. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is entitled to payment of a permanent impairment rating greater than \n2% for her compensable right shoulder injury. \n 2. Whether Claimant’s attorney is entitled to an attorney’s fee. \n The claimant's contentions are as follows: \n“Claimant  contends  she  is  entitled  to  payment  of  a  permanent \nimpairment  rating  for  her  compensable  injury.  Claimant  reserves \nall other issues.” \n \n The respondents’ contentions are as follows: \n“Respondents   contend   that   Claimant   has    received   an   8% \npermanent   partial   impairment.   That   rating   assigned   by   Dr. \nHeinzelmann  is  being  questioned  to  address  major  cause.  Once \nclarification is received, Respondents will pay permanent disability \nbenefits associated with the claimant’s acute injury.” \n \n The  claimant  in  this  matter  is  a 55-year-old  female who  sustained  a  compensable  injury \nto her right shoulder on June 20, 2023, while employed by the respondent as a CNA. On direct \nexamination  the  claimant  described  the  incident  in  which  she  sustained  a  compensable  right \nshoulder injury as follows: \nQ And what happened to you on June 20\nth\n of 2023? \n \nA I  was  taking  care  of  a  two-person  assist  on  my  hall  that  I \nwas   assigned   and   I   was   rolling   this   person  over   and   I   had \noverreached for the wipes and I felt a pull. \n \nQ And what is a two-person assist? \n \nA It is a person that needs two people in the room to assist on \nthe changing, dressing, and getting up of the resident. \n \n\nPiatt – H402408 \n \n-3- \nQ Any  why  would  a  person  be  a  two-person  assist  or  more \nspecifically, why was this person a two-person assist? \n \nA He had had a stroke and he was extremely heavy. He was – \ncould not stand. \n \nQ So I can’t remember if you said. What service were you \nproviding for him at this time? \n \nA I was doing my two-your nightly rounds changing him. \n \nQ Okay. And so you said you overreached. Could you explain \nwhy that happened? \n \nA I  went  and  rolled  the  resident  over  and  I  had  realized  that \nmy wipes that I needed to perform my duty was at that time too far \naway and I overreached so I wouldn’t have to pull him back and \nre-roll him. \n \nQ So  when  you  overreached,  what  happened?  What  did  you \nfeel? \n \nA I felt a pull. \n \nQ And where was the pull? \n \nA On my shoulder. \n \nQ Which shoulder? \n \nA My right one. \n \nQ Okay. And did you get the wipes successfully? \n \nA I did, yes. \n \nQ Okay. And then what did you feel? \n \nA Pain. \n \n The  claimant  reported  her  injury  and  was  seen  at  Washington  Regional  Hospital’s \nemergency room. The claimant was later seen by APRN Dominque Carver on June 22, 2023. At \nthat  time,  APRN  Carver  diagnosed  the  claimant  with  a  right  shoulder  sprain  and  gave  the \n\nPiatt – H402408 \n \n-4- \nclaimant  instructions  to  ice  her  right  shoulder.  The  claimant  was  prescribed  ibuprofen  and \nDiclofenac gel. The claimant was returned to work with restrictions at that time. \n APRN Carver referred the claimant to physical therapy on July 6, 2023, as the claimant’s \nright shoulder failed to improve. On August 17, 2023, APRN Carver referred the claimant for a \nright shoulder MRI due to her minor improvement. \n On  August  30,  2023,  the  claimant  underwent  an  MRI  of  the  right  shoulder  at  MANA \nMedical  Associates.  Following  is  a  portion  of  that  diagnostic  report  authored  by  Dr.  Benjamin \nLowery: \nIMPRESSION: \n1.  Low-grade  partial-thickness  articular  surface  tear  involving  the \nconjoined tendon of the supraspinatus and infraspinatus. \n2. Tear of the interior labrum. \n \n On  September  13,  2023,  the  claimant  was  seen  by  Dr.  Andrew  Heinzelmann  at  Ozark \nOrthopedics. Following is a portion of the medical record from that visit: \nAssessment/Plan \nX-ray  three-view  right  shoulder  taken  here  today  no  fracture  no \ndislocation \n \nMRI  scan  right  shoulder  demonstrates  low-grade  partial  thickness \nrotator cuff tear. Tear of the inferior labrum. \n \nRight shoulder partial-thickness rotator cuff tear, labral tear \n \nWe  talked  about  the  pathology  and  the  treatment  strategies.  She \nreports  that  she  really  needs  to  keep  working  without  restrictions. \nIf there is a way to avoid the surgery that would be her preference. \nI  explained  to  her  that  we  certainly  can  treat  this  nonoperatively \nand  see  how  she  does.  I  would  recommend  maybe  a  steroid \ninjection  today  she  agrees  physical  therapy  once  a  week  for  6 \nweeks with a home program. No work restrictions come back in 6 \nweeks.  I  did  explain  as  well  that  it  is  possible  if  she  does  not \nimprove over time we could consider arthroscopic surgical options. \n \n1. Partial thickness rotator cuff tear – Right. \n\nPiatt – H402408 \n \n-5- \nM75.101: Unspecified rotator cuff tear or rupture of right shoulder, \nnot specified as traumatic. \n \n On April 15, 2024, the claimant was seen by Dr. Chad Songy at UAMS Orthopedics and \nSports Medicine. Following is a portion of that medical report: \nHistory of Present Illness: \nDebra Piatt is a 54 y.o. female who is here today for evaluation of \nher right shoulder. This is a workers’ Comp injury, date of injury \nwas 06/20/2023. The patient states she was moving a heavy patient \nand  sustained  an  injury  to  her  right  shoulder.  She  was  initially \ntreated with nonoperative management using oral medications and \nphysical therapy, she did not make improvements and had an MRI \nwhich   revealed   a   partial-thickness   articular   sided   tear   to   her \nsupraspinatus.  She  was  then  seen  by  Dr.  Heinzelman  who  did  a \nsubacromial    steroid    injection    and    more    physical    therapy. \nUnfortunately  the  patient  has  not  made  improvements.  Surgery \nwas then recommended, patient is here today for a 2\nnd\n opinion. \n \n*** \nImaging: \nMRI  from  outside  facility  was  reviewed  and  does  show  a  partial \narticular sided tear to her supraspinatus. \n \nAssessment \n1. Traumatic incomplete tear of right rotator cuff, initial encounter \n2. Activity involving caregiving involving lifting. \n \nPlan \nDebra  Piatt is  a  54  y.o.  female  here  today  for  evaluation  of  her \nright shoulder, this is a 2\nnd\n opinion for a workers’ Comp injury. \n \nIn  my  professional  opinion,  the  patient’s  current  diagnosis  is  a \npartial articular sided rotator cuff tear to the supraspinatus. \n \nIn my professional opinion, the mechanism of injury does correlate \nwith her continued complaints and MRI findings. \n \nAcute objective findings would be the partial articular sided tear of \nher supraspinatus on MRI. \n \nI do think an injury like to patient had could lead to finding similar \nto her MRI. \n \n\nPiatt – H402408 \n \n-6- \nSince  the  patient  has  failed  nonoperative  management  including \nsteroid   injections   and   extended   physical   therapy,   I   would \nrecommend  surgical  intervention  for  a  right  shoulder  arthroscopy \nwith possible rotator cuff repair and other indicated procedures. \n \nAt  this  time  I  would  keep  the  patient  limited  at  work  to  no  lifting \ngreater than 5 lb. and no overhead activities. \n \nOutside  hospital  records  were  reviewed,  including  notes  from  the \nworkers’ comp team, outside orthopedic, MRI, and report from the \nradiologist. \n \n The  claimant  underwent  surgical  intervention  for  her  compensable  right  shoulder  injury \non  June  21,  2024,  at  the  hands  of  Dr.  Heinzelmann.  Following  is  a  portion  of  that  operative \nreport: \nPREOPERATIVE  DIAGNOSES:  Right  shoulder  rotator  cuff  tear, \nimpingement, AC joint arthritis, possible labral tear. \n \nPOSTOPERATIVE   DIAGNOSES:   Right   shoulder   high-grade \npartial  thickness  rotator  cuff  tear,  labral  tear  with  glenohumeral \narthrosis, impingement, and AC joint arthrosis. \n \nPROCEDURES PERFORMED: \n1. Right shoulder arthroscopic rotator cuff repair. \n2. Right shoulder arthroscopic labral repair, anterior. \n3. Right     shoulder     arthroscopic     distal     clavicle     excision \napproximately 1 cm in size. \n4. Right shoulder arthroscopic debridement to include subacromial \ndecompression,    glenohumeral    debridement,    and    bursectomy \nanteriorly, posteriorly, and laterally. \n \n On September 20, 2024, Dr. Heinzelmann again saw the claimant. At that time, he found \nthe  claimant  to  be  at  maximum  medical  improvement  and  referred  the  claimant  for  an \nimpairment  rating  of  her  right  shoulder.  The  claimant  was  assessed  and  rated  by  Casey \nGarretson,  OTD,  OTR/L,  CFE,  CEAS  of  Functional  Testing  Centers,  Inc.,  on  September  23, \n2024. That “Impairment Evaluation Summary” can be found Claimant’s Exhibit 1, pages 43-47. \n\nPiatt – H402408 \n \n-7- \nIt  was  determined  at  that  time  that  the  claimant  had  a  13%  upper  extremity  impairment  which \nconverts to an 8% whole body rating. \n On  November  16,  2024,  the  respondent  authored  a  letter  to  Dr.  Heinzelmann  regarding \nthe impairment rating stated in the Functional Testing Centers, Inc. report. Following is the body \nof that letter authored by Ms. Jackie Cooper, BSN, RN, CCM with Integrity Consulting Services, \nLLC: \nThank  you  for  treating  Ms.  Debra  Piatt  for  her  injury  of  6/20/23. \nThis  is  an  Arkansas  Work  Comp  Claim.  As  you  are  aware, Ms. \nPiatt reported  an injury to her  right shoulder on 6/20/23 when she \nwas holding a resident on their side with her left arm and reached \nfor  a  wet  wipe  with  her  right  arm  and  felt  a  pull  in  her  right \nshoulder.  Ms.  Piatt  underwent  an  MRI  of  the  right  shoulder  on \n8/30/23  which  revealed  a  low-grade  partial-thickness  articular \nsurface  tear  involving  the  conjoined  tendon  of  the  supraspinatus \nand infraspinatus and tear of the inferior labrum as well as mild to \nmoderate  degenerative  changes  in  the  AC  joint.  She  underwent  a \nright shoulder arthroscopic RTC repair, labral repair anterior, distal \nclavicle  excision  approximately  1  cm  in  size  and  debridement  to \ninclude  subacromial  decompression,  glenohumeral  debridement, \nand  bursectomy  anteriorly,  posteriorly  and  laterally  performed  by \nyou on 6/21/24. \n \nThe  Functional  Testing  Center  performed  the  impairment  rating \nand assigned 13 percent to the upper extremity which equated to 8 \npercent to the body  as a  whole.  In looking at the  operative report, \nyou   noted   she   had   mild   to   moderate   pre-existing   AC   joint \narthrosis, for which a distal clavicle excision was done. \n \nWould  you  agree  the  10%  upper  extremity  rating  for  the  distal \nclavicle excision (arthroplasty) is 51% or greater related to her pre-\nexisting AC joint arthritis versus the work injury? \n \nDr. Heinzelmann responded on December 6, 2024, by indicating “Yes” to the question, \n“Would you agree the 10% upper extremity rating for the distal clavicle excision (arthroscopy) is \n51% or greater related to her pre-existing AC joint arthritis versus the work injury?” \n\nPiatt – H402408 \n \n-8- \n The respondent in this matter has accepted a 2% impairment rating to the claimant’s right \nshoulder.  The  claimant  has  asked  the  Commission  to  determine  whether  she  is  entitled  to  an \nimpairment rating greater than 2% for compensable right shoulder injury. \nPermanent impairment, which is usually a medical condition, is any permanent functional \nor  anatomical  loss  remaining  after  the  healing  period  has  been  reached.   Ouachita  Marine  v. \nMorrison, 246 Ark. 882, 440 S.W.2d 216 (1969).  Also, in Wilson & Co. v. Christman, 244 Ark. \n132, 424 S.W.2d 863 (1968), the Arkansas Supreme Court held that physical functional loss may \nbest   be   measured   through   physical   examination   by   competent   medical   specialists.   The \nCommission must first evaluate the medical evidence and determine if the permanent impairment \nis  supported  by  objective  and  measurable  findings.   Reader  v.  Rheem  Mfg.  Co.,  38  Ark.  App. \n248,  832  S.W.2d  505  (1992).    Ark.  Code  Ann.  §11-9-704(c)(1)(B)(Repl.  1996)  states  that  any \ndetermination of the  existence or extent of  physical impairment shall be supported by objective \nand  measurable  physical  or  mental  findings.    In  addition,  permanent  benefits  may  only  be \nawarded  upon  a  determination  that  the  compensable  injury  was  the  major  cause  of  the \nimpairment, Ark. Code Ann. §11-9-102(5)(F)(ii)(Repl. 1996). \n The claimant’s compensable right shoulder injury’s healing period came to an end on \nSeptember   20,   2024,   when   Dr.   Heinzelmann   declared   her   to   be   at   maximum   medical \nimprovement. Dr. Heinzelmann then referred the claimant for an impairment rating assessment, \nand  one  was  performed  by  Casey  Garretson,  whom  is  an  occupational  therapist.  His  report  in \nsome detail explains his rating procedure, which appears to be in line with the AMA Guidelines \nto   the   Evaluation   of   Permanent   Impairment,   4\nth\n Edition and  the  Arkansas  Workers’ \nCompensation  Act.  The  impairment  rating  of  8%  to  the  body  as  a  whole  is  supported  by \nsubjective measurable findings, specifically the claimant’s right shoulder MRI performed on \n\nPiatt – H402408 \n \n-9- \nAugust 30, 2023, and the claimant’s operative report from her June 21, 2024, right shoulder \nsurgery.  However,  the  claimant  is  only  entitled  to  an  award  of  permanent benefits  upon  a \ndetermination that her compensable right shoulder injury was the major cause of her impairment. \nDr.  Heinzelmann’s  response  of  “Yes”  to  the  question, “Would  you  agree  the  10%  upper \nextremity rating for the distal clavicle excision (arthroscopy) is 51% or greater related to her pre-\nexisting AC joint arthritis versus the work injury?” appears to be the basis of the respondent’s \nbelief that only 2% of the claimant’s whole body impairment’s major cause stemmed from her \ncompensable  right  shoulder  injury;  associating  the  balance  of  the  8%  whole  body  impairment \nassessed by occupational therapist Garretson with a major cause that stemmed from pre-existing \nAC joint arthritis. \n I disagree with this position and find the claimant’s compensable right shoulder injury \nwas  the  major  cause  of  the  8%  whole  body  impairment  assessed  by  occupational  therapist \nGarretson. The claimant gave credible testimony that she had never previously had right shoulder \ndifficulties on direct examination as follows: \nQ Now, before this incident, had you ever had any problem at \nall with your right shoulder? \n \nA No. \n \nQ Before June 20\nth\n of 2023, had you had any aches or pains in \nyour right shoulder? \n \nA No. \n \nQ Before that time, had you had any restrictions of movement \nin your right shoulder? \n \nA No. \n \nQ Had  you  ever  seen  a  doctor  for  your  right  shoulder  before \nthat date? \n\nPiatt – H402408 \n \n-10- \n \nA No. \n \nQ Had  you  ever  missed  work  because  of  your  right  shoulder \nbefore that date? \n \nA No. \n*** \nQ And prior to this injury, had you had any trouble using your \narm with a full range of motion? \n \nA No. \n \n The  claimant’s  testimony  regarding  having  no  prior  right  shoulder  difficulties  is \nsupported  by  the  medical  evidence.  There  are  no  medical  records  in  evidence  that  mention  any \nissues  or  difficulties  regarding  the  claimant’s  right  shoulder  prior  to  her  compensable  right \nshoulder  injury  on  June  20,  2023.  There  are  four  medical  records  introduced  by  the  claimant \nfrom the years 2015 and 2016 that primarily discuss knee pain, but no mention of the claimant’s \nright  shoulder,  including  portions  of  those  records  that  discuss  the  claimant’s  past  medical \nhistory. \n Given Dr. Heinzelmann’s response to the respondent’s singular question in the November \n16, 2024, letter authored to him, it is clear that he believes the claimant had pre-existing AC joint \narthritis.  That  very  well  may  be  the  case,  but  if  that  pre-existing  condition  existed  it  was  most \ncertainly  asymptomatic  prior  to  the  accident  and  then  symptomatic  thereafter,  satisfying  the \nmajor cause requirement as it did in Leach v. Cooper Tire and Rubber, Co., 2011, Ark. App 571 \n(2011). The claimant is able to prove that she is entitled to a whole body impairment of 8% due \nto  her  compensable  right  shoulder  injury.  I  note  the  respondent has  previously  accepted  2%  of \nthat whole body impairment leaving a balance of 6% whole body impairment. \n\nPiatt – H402408 \n \n-11- \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nDecember  30,  2024,  and  contained  in  a  Pre-hearing  Order  filed January  7,  2025,  are  hereby \naccepted as fact. \n 2. The  claimant  is  entitled  to  an  additional  6%  whole  body  impairment  due  to  her \ncompensable  right  shoulder  injury.  This, in  combination  with  the  2%  whole  body  impairment \nstipulated  to  by  the  respondents,  gives  the  claimant  a  total  whole  body  impairment  of  8% \nregarding her compensable right shoulder injury. \n 3. The claimant’s attorney is entitled to an attorney’s fee in this matter. \n ORDER \nRespondent shall pay the claimant a total of 8% whole body impairment, which is made \nup  of  the  2%  previously  accepted  and  stipulated  to  by  the  respondent  and  the  6%  whole  body \nimpairment awarded herein. \nRespondents shall pay to the claimant's attorney the maximum statutory attorney's fee on \nthe benefits awarded herein, with one half of said attorney's fee to be paid by the respondents in \naddition  to  such  benefits  and  one  half  of  said  attorney's  fee  to  be  withheld  by  the  respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n\nPiatt – H402408 \n \n-12- \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":20520,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H402408 DEBRA PIATT, Employee CLAIMANT EDGEWOOD HEALTH & REHAB, Employer RESPONDENT CCMSI, Carrier RESPONDENT OPINION FILED JULY 9, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant represented b...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["shoulder","back","sprain","fracture","rotator cuff","knee"],"fetchedAt":"2026-05-19T22:38:25.386Z"},{"id":"alj-H304964-2025-07-08","awccNumber":"H304964","decisionDate":"2025-07-08","decisionYear":2025,"opinionType":"alj","claimantName":"Amber Harris","employerName":"Dog Spa","title":"HARRIS VS. DOG SPA AWCC# H304964 July 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HARRIS_AMBER_H304964_20250708.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRIS_AMBER_H304964_20250708.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H304964  \n \nAMBER J. HARRIS, EMPLOYEE            CLAIMANT \n \nDOG SPA, EMPLOYER                       RESPONDENT \nUNINSURED \n \n \nOPINION AND ORDER DATED JULY 8, 2025 \nThe Hearing before Administrative Law Judge James D. Kennedy in Mountain \nHome, Arkansas, was held on June 18, 2025. \nClaimant was represented by Frederick S. “Rick” Spencer of Mountain Home, \nArkansas. \nRespondents were represented by Jerry L. Lovelace, of Springdale, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 18\nth\n day of June, 2025, in \nMountain  Home Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute \npursuant  to  Ark. Code  Ann.  11- 9 -702 and  Rule  099.13 of  the  Arkansas Workers’ \nCompensation Commission.   The claimant failed to appear, and his attorney waived his \nappearance, based upon the note from the claimant which was introduced into evidence \nand which stated “I, Amber Harris would no longer like to pursue my workmans [sic] comp \ncase against Tristin Hobbs.”  This note was dated April 15, 2025. \nThe respondents were represented by Jerry L. Lovelace, of Springdale, Arkansas, \nwho introduced two documents into the record.  The Motion to Dismiss was filed on what \nappears  to  be  March  31,  2025.    The  claimant  had  filed  her  AR-C on  August  7,  2023, \nalleging that she was due compensation for an injury sustained while employed by the \nDefendant and walking a dog that bit her right hand.      \n\nHarris – H304964 \n \n2 \n \n No response was filed by the Claimant to Respondent’s Motion to Dismiss, so an \nappropriate notice for a Motion to Dismiss hearing was provided to the Claimant, setting \nthe hearing for June 18, 2025, at 10:00 a.m., in Mountain Home, Arkansas.   \n A hearing was held on June 18, 2025, and the claimant failed to appear, and her \nattorney waived his appearance due to the note entered into the record which provided \nthat the claimant no longer wished to pursue her claim.  The evidence provided that no \nbona  fide  hearing  request  was  made  within  six  months  of  the  filing  of  the  AR-C.   The \nRespondents requested  that  the  matter  be  dismissed  pursuant  to  Rule  099.13  of  the \nArkansas Workers’ Compensation Commission and Ark. Code Ann. 11-9-702.    \nORDER \n Pursuant to the above statement of the case, as well as the documents entered \ninto the evidentiary record and statements by the attorney for the Respondents, there is \nno alternative but to grant the Motion to Dismiss without prejudice pursuant to Rule 099.13 \nof the Arkansas Workers’ Compensation Commission and Ark. Code Ann. 11-9-702.   \nIT IS SO ORDERED. \n      ____________________________ \n                JAMES D. KENNEDY \n                ADMINISTRATIVE LAW JUDGE","textLength":2815,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304964 AMBER J. HARRIS, EMPLOYEE CLAIMANT DOG SPA, EMPLOYER RESPONDENT UNINSURED OPINION AND ORDER DATED JULY 8, 2025 The Hearing before Administrative Law Judge James D. Kennedy in Mountain Home, Arkansas, was held on June 18, 2025. Claimant was represent...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:38:21.226Z"},{"id":"alj-H108549-2025-07-07","awccNumber":"H108549","decisionDate":"2025-07-07","decisionYear":2025,"opinionType":"alj","claimantName":"Jose Betancourt","employerName":"Bhi Energy, Inc","title":"BETANCOURT DEL RIO VS. BHI ENERGY, INC. AWCC# H108549 July 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BETANCOURT_JOSE_H108549_20250707.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BETANCOURT_JOSE_H108549_20250707.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H108549 \n \nJOSE BETANCOURT DEL RIO, Employee CLAIMANT \n \nBHI ENERGY, INC., Employer RESPONDENT \n \nSTARR INDEMNITY & LIABILITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 7, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents  represented  by MICHAEL  E.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On June  16,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort \nSmith,  Arkansas.      A  pre-hearing  conference  was  conducted  on April  23,  2025,  and  a \npre-hearing  order  was  filed  on  that  same  date. A  copy  of  the  Pre-hearing  Order  has \nbeen  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.  The Arkansas Workers' Compensation Commission has jurisdiction of \nthe within claim. \n2. The  employee/employer/carrier  relationship  existed  among  the  parties  on \nSeptember 14, 2021. \n\nBetancourt – H108549 \n \n-2- \n3.  The  claimant  sustained  a  compensable  injury  to  his  back  on  September  14, \n2021. \n4. Prior Opinion of October 21, 2024, is final. \nThe issues to be litigated at the forthcoming hearing are as follows: \n1. Temporary total disability benefits from January 20, 2025, to a date yet to be \ndetermined.  \n2.  Respondents’  entitlement  to  a  credit  against  any  temporary  total  disability \nbenefits owed to claimant. \n3.  Payment  of  November  30,  2024,  emergency  room  visit  and  December  4, \n2024, visit to Siloam Springs Community Clinic. \n4. Attorney fee. \nAt  the  hearing  the  parties  agreed  to  stipulate  that  respondent  has  accepted \nliability for payment of the November 30, 2024, emergency room visit and the December \n4,  2024,  visit  to  Siloam  Springs  Community  Clinic.  The  parties  have  also  agreed  to \nstipulate that claimant is entitled to temporary total disability benefits beginning January \n28,  2025,  and  continuing  through  a  date  yet  to  be  determined.  Based  upon  the \nadditional  stipulations,  the  only  issues  remaining  to  be  litigated  are  respondent’s \nentitlement  to  apply  its  credit  against  any  temporary  total  disability  benefits  owed  to \nclaimant and an attorney fee. \nThe claimant contends: \n“The Claimant contends that the respondents do not have \nthe  right  to  recoup  an  overpayment  regarding  a  permanent \nimpairment  rating  by  withholding  payments  to  the  claimant \nthat  arise  out  of  temporary  total  disability.  The  claimant \ncontends  that  the  respondents  can  only  take  a  credit  for  an \n\nBetancourt – H108549 \n \n-3- \noverpayment against  the  same  type of benefits  that  created \nthe overpayment. \n \nThe  claimant  contends  that  his  attorney  is  entitled  to  an \nattorney’s fee in regard to temporary total disability benefits \narising out of the January 28, 2025 surgery.” \n \nThe respondents contend “a previous decision awarded compensability but no \nTTD. A credit was allowed for 6% to the body due to an overpaid PPD rating. No appeal \nwas filed by either party. The respondents authorized the surgery that was done on 1-\n28-25.  The  6%  credit  is  equivalent  to  20.28  weeks  of  benefits  at  the  TTD  rate.  The \ncredit will not be used up until 6-11-25. The ALJ decision states that the credit is for ‘any \nbenefits’ paid in excess of the 2% appropriate rating. TTD has not been controverted. \nNo  attorney  fees  are  due.  The  rating  for  a  third  surgery  at  the  same  level  is  1%.  It  is \nimpossible to take a 6% credit for a 1% PPD rating.”  \nFrom a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on April 23, 2025, and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n\nBetancourt – H108549 \n \n-4- \n 2. The parties’ stipulation that respondent has accepted liability for payment of \nthe  November  30,  2024,  emergency  room  visit  and  the  December  4,  2024,  visit  to \nSiloam Springs Community Clinic is also hereby accepted as fact. \n 3. The parties’ stipulation that claimant is entitled to temporary total disability \nbenefits  beginning  January  28,  2025,  and  continuing  through  a  date  yet  to  be \ndetermined is also hereby accepted as fact.  \n 4.  Respondent  is  entitled  to  apply  the  overpayment credit  awarded  in  the  prior \nopinion  filed  October  12,  2024,  against  payments  due  claimant  for  temporary  total \ndisability benefits beginning January 28, 2025. \n 5.  Respondent  has  controverted  claimant’s  entitlement  to  temporary  total \ndisability benefits arising from his surgery by Dr. Seale. \n \nFACTUAL BACKGROUND \n Claimant performed construction work for the respondent and has a history of a \nnon-work-related  back  problem  that  resulted  in  surgery  at  L5-S1  in  2014.  Claimant \npreviously  testified  that  after  approximately  a  year’s  recovery  he  returned  to  work \nperforming   his   regular   activities   which   included   heavy   lifting.   The   parties   have \npreviously stipulated that claimant suffered a compensable injury to his low back while \nworking  for  respondent  on  September  14,  2021.  After  some  conservative  treatment, \nclaimant  underwent  a  “revision  left  L5-S1  micro  decompression”  by  Dr.  Gannon \nRandolph in April 2022. \n After  the  surgery  by  Dr.  Randolph,  claimant  was  released  to  return  to  work \nwithout  restrictions  on  July  19,  2022,  and  at  some  point  thereafter  respondent  paid \n\nBetancourt – H108549 \n \n-5- \nclaimant  permanent  partial  disability  benefits  based  on  an  8%  rating  to  the  body  as  a \nwhole. \n Claimant previously testified that although he returned to work for respondent, he \ncontinued to have low back pain and changed jobs to work as an electrician which did \nnot  require  heavy  lifting.  Claimant  was  also  referred by  respondent to  Dr.  Jared  Seale \nwho recommended a fusion procedure for a recurrent disc protrusion at L5-S1. Claimant \nwas  also  evaluated  by  Dr.  Randolph  who  agreed  that  claimant  was  in  need  of  the \nproposed fusion procedure.  \n Respondent  did  not  accept  liability  for  the  proposed  procedure  and  as  a  result \nclaimant  filed  a  claim  contending  that  he  was  entitled  to  the  surgery.  Claimant  also \nrequested  payment  of  temporary  total  disability  benefits  and  respondent  raised  as  an \nissue the claimant’s correct impairment rating as a result of the September 14, 2021, \ninjury.  A  hearing  on  those  issues  was  conducted  on  October  2,  2024,  and  an  opinion \nwas filed on October 21, 2024, finding that claimant had met his burden of proving by a \npreponderance  of  the  evidence  that  he  was  entitled  to  the  recommended  surgery  and \nthat  at  that  time  claimant  was  not  entitled  to  payment  of  additional  temporary  total \ndisability benefits. As to the correct impairment rating, the following finding was made: \n4.  Claimant’s  impairment  rating  attributable  to  his \ncompensable  injury  equals  2%  to  the  body  as  a  whole. \nRespondent  is  entitled  to  a  credit for  permanent  partial \ndisability benefits paid in excess of that 2% rating. \n \n The award portion of the opinion contains the following: \nClaimant’s permanent physical impairment rating as a result \nof  his  compensable  injury  on  September  14,  2021,  is  2% \npursuant  to  the AMA  Guides.  Respondent  is  entitled  to  a \ncredit for any benefits paid in excess of this amount. \n\nBetancourt – H108549 \n \n-6- \n \n The parties have stipulated that the October 21, 2024, opinion is final. Since the \ntime  of  the  last  hearing,  claimant  underwent  the  recommended  surgical  procedure  by \nDr. Seale on January 28, 2025, and the parties have stipulated that claimant is entitled \nto temporary total disability benefits beginning on that date. The issue to be litigated is \nrespondent’s entitlement to apply its credit against the temporary total disability benefits \npayable to claimant.  \n \nADJUDICATION \n At  the  prior  hearing,  the  parties  stipulated  that  respondent  had  paid  claimant \npermanent  partial  disability  benefits  based  on  an  8%  rating  to  the  body  as  a  whole. \nRespondent  introduced  into  evidence  an  impairment  evaluation  summary  dated  June \n24,  2024,  from  Functional  Testing  Centers,  Inc.  which  assigned  claimant  an  8% \nimpairment  rating  to  the  body  as  whole  for  a  surgically  treated  disc  lesion  without \nresidual  signs  or  symptoms  pursuant  to  Table  75  of  the AMA  Guides,  4\nth\n Edition. \nHowever,  as  the  prior  opinion  noted,  the  claimant’s  surgery  in  April  2022  was  the \nsecond surgical procedure on his lumbar spine, not the first. Therefore, the claimant’s \nfirst surgical procedure in 2014 for a non-work-related condition would have resulted in \nan  8%  rating  with  the  second  procedure  in  2022  resulting  in  an  additional  2% \nimpairment pursuant to the AMA Guides. Based upon this evidence, this administrative \nlaw judge found that respondent was entitled to a credit for permanent partial disability \nbenefits  paid  in  excess  of  2%.  As  previously  noted,  the  parties  have  agreed  that  the \nprior opinion is final. \n\nBetancourt – H108549 \n \n-7- \n Although  respondent  acknowledges  that  claimant  is  entitled  to  temporary  total \ndisability benefits beginning on January 28, 2025, following another surgical procedure, \nrespondent  contends  that  it  is  entitled  to  apply  the  previously  awarded  credit  against \nthose benefits until the credit is exhausted. Claimant contends that since the credit was \nfor  overpayment  of  permanent  partial  disability  benefits,  not  temporary  total  disability \nbenefits, respondent is not entitled to apply the credit. \n I  find  that  respondent  is  entitled  to  apply  the  previously  awarded  credit  against \npayment of temporary total disability benefits until the credit is exhausted. Claimant has \ncited  no  authority  supporting  the  contention  that  a  credit  for  overpayment  can  only  be \napplied against the same type of indemnity benefits for which the credit was awarded.  \n Claimant   argues   that   allowing   respondent   to   take   a   credit   under   these \ncircumstances  would  permit  a  respondent  to  take  a  credit  against payment  of medical \nbenefits. However, these are not the same type of benefits. Medical benefits are paid to \na  third  party,  while  temporary  total  disability  and  permanent  partial  disability  are \nindemnity  benefits  payable  directly  to  a  claimant.  Furthermore,  respondent  is  not \nrequesting  a  credit  against  medical  benefits  payable  in  this  claim.  Instead,  it  is  only \nrequesting  application  of  the  credit  against  additional  indemnity  benefits  payable  to \nclaimant. \n Per  the  prior  opinion,  claimant  has  received  indemnity  benefits  over  and  above \nthat to which he was entitled under the Arkansas Workers’ Compensation law. As a \nresult,   respondent   was   awarded   a   credit   for   that   overpayment.   Although   the \noverpayment  was  for  permanent  partial  disability  benefits,  a  finding  that  respondent  is \nnot  entitled  to  apply  the  credit  against  payment  of  temporary  total  disability  benefits \n\nBetancourt – H108549 \n \n-8- \nwould  continue  to  allow  claimant  to  receive  indemnity  benefits  in  excess  of  those  to \nwhich he is entitled under the law. \n Accordingly, I find that respondent is entitled to apply its credit against temporary \ntotal disability benefits owed to claimant beginning on January 28, 2025, and continuing \nuntil the credit is exhausted or until claimant’s entitlement to temporary total disability \nbenefits ends, whichever occurs first.  \n Having found that respondent is entitled to apply its credit against temporary total \ndisability benefits owed to claimant, it is not necessary to discuss whether the payment \nof permanent partial disability was an advance payment of compensation. Respondent \nhas already proven that it’s entitled to the credit which was awarded in the opinion filed \nOctober 21, 2024. \n Finally,  by  controverting  claimant’s  entitlement  to  the  additional  medical \ntreatment  in  the  form  of  surgery  at  the  prior  hearing,  respondent  has  controverted \nclaimant’s entitlement to temporary  total  disability  benefits  arising  out  of  that  surgery \nbeginning  on  January  28,  2025.  Therefore,  claimant’s  attorney  is  entitled  a  fee  on \ntemporary total disability benefits as of January 28, 2025. \n \nAWARD/ORDER \n Respondent  is  entitled  to  apply  its  credit  against  temporary  total  disability \nbenefits  owed  to  claimant  beginning  January  28,  2025.  By  controverting  claimant’s \nentitlement  to  the  surgery,  respondent  has  controverted  payment  of  temporary  total \ndisability benefits attributable to that surgery. \n\nBetancourt – H108549 \n \n-9- \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.   Also pursuant to A.C.A. §11-9-715(a)(1)(B), an attorney fee is not \nawarded on medical benefits. \nAll sums herein accrued are payable in a lump sum and without discount.  This \naward shall bear interest at the maximum legal rate until paid. \n Respondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $263.00 \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":14615,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H108549 JOSE BETANCOURT DEL RIO, Employee CLAIMANT BHI ENERGY, INC., Employer RESPONDENT STARR INDEMNITY & LIABILITY CO., Carrier RESPONDENT OPINION FILED JULY 7, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County,...","outcome":"granted","outcomeKeywords":["granted:9"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T22:38:16.992Z"},{"id":"alj-H207274-2025-07-07","awccNumber":"H207274","decisionDate":"2025-07-07","decisionYear":2025,"opinionType":"alj","claimantName":"Carolyn Norris","employerName":"Kagome Inc","title":"NORRIS VS. KAGOME INC. AWCC# H207274 July 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Norris_Carolyn_H207274_20250707.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Norris_Carolyn_H207274_20250707.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207274 \n \nCAROLYN NORRIS, EMPLOYEE  CLAIMANT \n \nKAGOME INC., \nEMPLOYER                                                                                                 RESPONDENT \n \nSOMPO AMERICA FIRE AND MARINE \nINSURANCE COMPANY, CARRIER/ \nGALLAGHER BASSETT SERVICES, INC., TPA                                                         RESPONDENT  \n \n \nOPINION FILED JULY 7, 2025 \n \nHearing before Administrative Law Judge Steven Porch on May 23, 2025 in Jonesboro, Craighead \nCounty, Arkansas. \n \nClaimant was Pro Se, Osceola, Arkansas. \n \nThe Respondents were represented  by  Mr. Rick Behring,  Jr.,  Attorney  at  Law, Little  Rock, \nArkansas. \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non  February  28,  2025. A  previous  Motion  to  Dismiss hearing was  conducted on September 22, \n2023, in Jonesboro,  Arkansas.   That hearing  was  based  on  a  Motion  to  Dismiss  filed  by \nRespondents  on  August 7,  2023.  There  the Claimant was  represented  by Ms.  Laura  Beth  York, \nAttorney  at  Law.  However, the Claimant  herself nor  her  attorney  were present  at  the  hearing. \nRespondents were represented at that hearing by Mr. David C. Jones, Attorney at Law, of Little \nRock,  Arkansas. I  have  found  during  that  hearing  that  the  Claimant  has  failed  to  prosecute  her \nclaim and granted the dismissal without prejudice. \n The Claimant soon filed a second Form AR-C through her then-attorney Laura Beth York \non  August  21,  2024, where she  purportedly injured  her low  back, right elbow,  and  other  whole \nbody when she slipped on an oily food product on the floor. The Claimant requested initial and  \n\nNORRIS H207274 \n \n 2 \n \nadditional benefits    but did    not    request    a    hearing. The    Claimant    worked    for    the \nRespondent/Employer  as  a filler  operator  lead. The date for Claimant’s alleged injury was on \nSeptember 19,  2022. She  reported  her injury  to  Respondent/Employer  on  the  same  day. \nRespondents admitted into the record Respondents’ Exhibit 1, pleadings, consisting of 14 pages. \nThe Commission has admitted into evidence Commission Ex. 1, correspondence, and U.S. Mail \nreturn receipts, consisting of 6 pages, as discussed infra. \nOn November  7, 2024, Claimant’s then-attorney,  Laura  Beth  York,  filed  a  Motion  to \nWithdraw as Counsel. The Claimant did not object to the withdrawal, and the motion was granted \nby  the  Full  Commission on  November  22,  2024. On  February 28, 2025, Respondents’ counsel \nfiled a Motion to Dismiss due to Claimant’s failure to prosecute his claim. The Claimant was sent, \non March 7, 2025, notice of the Motion to Dismiss, via certified and regular U.S. Mail, to her last \nknown address. The certified motion notice was not claimed by the Claimant as noted on the March \n25,  2025,  return  receipt. However,  the  notice  sent  regular  U.S.  Mail,  was  not  returned  to  the \nCommission. The  Claimant  did  not  respond  to  the  Motion,  in  writing,  as  required.  Thus,  in \naccordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice of \nRespondents’ Motion to Dismiss hearing date at his current address of record via the United States \nPostal  Service  (USPS), First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-\nClass Mail, on April 14, 2025. The certified notice was not claimed, but the notice sent regular \nU.S.  Mail  did  not  return  to  the  Commission.  The  hearing  took  place  on March  23,  2025. The \nClaimant did not show up to the hearing. \n \n \n\nNORRIS H207274 \n \n 3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the May 23, 2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. The certified hearing notice was \nnot claimed by the Claimant; however, the hearing notice sent regular U.S. Mail did not return to \nthe  Commission.  The  Claimant  is  responsible  for  updating  their  address  of  record  with  the \nCommission. When a notice is sent to Claimant’s last known address of record, as was the case  \n \n\nNORRIS H207274 \n \n 4 \n \nhere, then reasonable notice was achieved. Thus, I find by the preponderance of the evidence that \nreasonable notice was given to the Claimant.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant filed her second Form AR-C \non August 21, 2024. Since then, she has failed to request a bona fide hearing. Therefore, I do find \nby the preponderance of the evidence that Claimant has failed to prosecute her claim by failing to \nrequest a hearing. Thus, Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6252,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207274 CAROLYN NORRIS, EMPLOYEE CLAIMANT KAGOME INC., EMPLOYER RESPONDENT SOMPO AMERICA FIRE AND MARINE INSURANCE COMPANY, CARRIER/ GALLAGHER BASSETT SERVICES, INC., TPA RESPONDENT OPINION FILED JULY 7, 2025 Hearing before Administrative Law Judge Steven P...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:38:19.150Z"},{"id":"full_commission-H307524-2025-07-03","awccNumber":"H307524","decisionDate":"2025-07-03","decisionYear":2025,"opinionType":"full_commission","claimantName":"Kanekalon Bishop","employerName":"Arkansas Department Of Corrections","title":"BISHOP VS. ARKANSAS DEPARTMENT OF CORRECTIONS AWCC# H307524 July 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Bishop_Kanekalon_H307524_20250703.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Bishop_Kanekalon_H307524_20250703.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H307524 \n \nKANEKALON BISHOP, \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF CORRECTIONS,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JULY 3, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed in part, reversed in part. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nDecember 31, 2024.  The administrative law judge found that the claimant’s \nevaluation at Functional Testing Centers, Inc. was reasonably necessary.  \nThe administrative law judge found that the claimant proved she was \nentitled to a 1% permanent anatomical impairment rating.  The \nadministrative law judge found that the claimant proved she was entitled to \nadditional compensation in accordance with Ark. Code Ann. §11-9-\n505(Repl. 2012).   \n\nBISHOP - H307524  2\n  \n \n \nAfter reviewing the entire record de novo, the Full Commission finds \nthe claimant did not prove the evaluation at Functional Testing Centers, Inc. \nwas reasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  We find that the claimant did not prove she was \nentitled to a permanent anatomical impairment rating.  However, the Full \nCommission finds that the claimant proved she was entitled to additional \ncompensation in accordance with Ark. Code Ann. §11-9-505(a)(1)(Repl. \n2012).           \nI.  HISTORY \n The record indicates that Kanekalon Bishop, now age 44, became \nemployed with the respondents, Arkansas Department of Corrections, on \nApril 3, 2023.  The parties stipulated that the employment relationship \nexisted at all pertinent times.  The claimant testified that she was employed \nwith the respondents on November 9, 2023, and that her job title on that \ndate was Administrative Assistant for Maintenance.  The claimant testified \non direct examination: \n  Q.  And did you sustain an injury on November 9, 2023? \n  A.  Yes. \n  Q.  Would you tell the judge what happened? \nA.  We have a thing called Employee Corporation.  So that \nday, we was selling chili dogs and chili and cheese dogs for \nthe employees and I went out to the Riot Gate to hand them – \nwe had run out of cheese and I went to the Riot Gate to hand \nthem something through the Gate and the lady that was in \nmaster control wasn’t paying attention and she let the Gate \nback on my arm as I was handing something....I had to \n\nBISHOP - H307524  3\n  \n \n \nscream.  I was screaming for her to run back and push the \nbutton to open it back up on my arm.   \nQ.  So it, automatically, closed on your right arm? \nA.  Yes, sir.   \n \n According to the record, the claimant treated at MedExpress on \nNovember 9, 2023: \nPatient is a 43 yo female who presents with right forearm \npain.  States while at work gate closed on her arm causing \nimmediate edema and pain.... \n \n A physician’s assessment on November 9, 2023 was “1.  Pain of \nright forearm” and “2.  Contusion of right forearm.”  The record indicates \nthat the respondents began paying temporary total disability benefits on \nNovember 10, 2023.  Amanda Dinwiddie, a WCC Claims Specialist, \ninformed the claimant on November 20, 2023, “Public Employee Claims \nDivision (PECD) administers the workers compensation benefits for ADC – \nMaximum Security Unit/Tucker Max.  PECD has accepted your injury of \n11/09/2023 as compensable and will be responsible for the authorized \nnecessary and reasonable medical treatment associated with this accident.” \nThe claimant began treating with Dr. Brian Norton on January 2, \n2024: \nThis is a 43-year-old female that comes today complaining of \na right forearm pain....The pain began back in November after \na gate slammed on her wrist/forearm.  She has significant \npain since that time.  She was seen by Dr. Hussey who \nordered an MRI of her wrist.  MRI showed no obvious \nsignificant abnormalities.... \nRight Forearm \n\nBISHOP - H307524  4\n  \n \n \nThere is significant tenderness at the intersection of the first \nand second dorsal compartments. \nThere is significant swelling in this area as well....The patient \ncontinues significant pain in the forearm likely due to \nintersection syndrome.  I recommended a steroid injection.  \nAlso recommended her go back into a wrist brace.  I will place \nher on a 5 pound work restriction.  She will come back to see \nme in a few weeks for repeat evaluation. \n \n Dr. Norton noted on January 22, 2024, “1.  The patient is doing \nbetter from her intersection syndrome.  However, she is having some \nnumbness and tingling.  I recommended getting EMG/nerve conduction \nstudy to ensure she does not have carpal tunnel syndrome....I will place her \non a 10 pound work restriction for the right side.” \n Nicholas C. Stewart, Human Resources/Training Administrator for \nthe Arkansas Department of Corrections, corresponded with the claimant \non January 23, 2024: \nYou have been absent from work since November 9, 2023.  \nOn January 12, 2024, you were mailed a letter via Fedex, \ninstructing you to provide a return-to-work date within five \ndays.  You have been denied FMLA and we have been \nunable to get in contact with you.  Regrettably, we must \nterminate your employment with the Arkansas Department of \nCorrections effective January 23, 2024.... \n \n The respondents’ attorney cross-examined the claimant: \n  Q.  Had you missed work, after November the 9\nth\n? \n  A.  Yes. \nQ.  Okay.  Did you feel like you were able to do your job at \nthat time? \n  A.  No.... \nQ.  So between November the 9\nth\n and January 23\nrd\n, did you \nget in contact with the Department of Corrections? \n\nBISHOP - H307524  5\n  \n \n \nA.  I did.... \nQ.  And as I understand it, you were still being paid temporary \ntotal disability. \nA.  Right.     \n \n A Nerve Conduction Study/EMG was performed on January 30, \n2024 with the following impression: \n  Abnormal study. \n1. Right median motor temporal dispersion with mild axonal \nmononeuropathy at the wrist (carpal tunnel syndrome). \n2. Mild right ulnar motor conduction block at the elbow \n(cubital tunnel syndrome). \n \nDr. Norton noted on February 13, 2024, “Patient underwent nerve \nconduction study on 1/30/2024.  The nerve study shows significant carpal \ntunnel syndrome as well as some cubital tunnel syndrome....I \nrecommended proceeding with surgery.  This will be in the form of right \ncarpal tunnel release, intersection syndrome release, as well as radial \ntunnel release.”   \nDr. Norton performed surgery on March 13, 2024:  “1.  Right radial \ntunnel release.  2.  Right carpal tunnel release.  3.  Right second dorsal \ncompartment tenosynovectomy.”  The pre- and post-operative diagnosis \nwas “1.  Right radial tunnel release.  2.  Right carpal tunnel release.  3.  \nRight second dorsal compartment tenosynovectomy.”  \nDr. Norton provided follow-up treatment after surgery, and he noted \non April 23, 2024, “At this point I will allow her to return to work without \nrestrictions.  She will continue with therapy in the form of range of motion \n\nBISHOP - H307524  6\n  \n \n \nand strengthening.  She will come back to see me in 6 weeks.”  Dr. Norton \nsigned a Return to Work/School form dated April 23, 2024:  “May return to \nwork/school on:  4/23/2024....Work limitations:  No restrictions.”  The record \nindicates that the respondents paid temporary total disability benefits until \nApril 23, 2024.       \nAmanda Dinwiddie corresponded with the claimant on April 25, 2024: \nI have been notified by Dr. Norton’s office that you were \nreleased to return to work full duty on 4/23/2024.   \nYour last temporary total disability (TTD) check in the amount \nof $292.26 representing date 4/18/2024 to 4/23/2024 has \nbeen ordered.  Please find this check enclosed.   \nPublic Employee Claims Division will continue to pay for any \nmedical treatment that is reasonable and necessary related to \nyour workcomp injury.   \n \n The claimant’s attorney corresponded with Amanda Dinwiddie on \nApril 26, 2024: \nMy understanding is that Ms. Bishop was terminated by the \nRespondent Employer while she was off for her injuries.  Now \nthat she has been released to return to work, please accept \nthis correspondence as the Claimant’s formal demand that his \nemployment with Respondents be reinstated immediately.  In \naddition, we must insist that her employment pick up where it \nleft off regarding her probationary period and all benefits \nwhich had previously accrued.  In other words, she should be \nreinstated with the same position, pay, seniority, and progress \nregarding her probationary period as if her employment had \nnever been terminated in the first place.  The Claimant \ndemands to be returned to work with the same wages and \nbenefits.  Please advise as soon as possible whether the \nRespondent employer will meet our demands as outlined in \nthis correspondence.  It should be noted that her \nreinstatement should be done without causing her any \n\nBISHOP - H307524  7\n  \n \n \nprejudice as a result of her termination which was the result of \na work-related injury.   \nTo the extent that the Respondents contend that they do not \nhave any work available within the Claimant’s physical and \nmental limitations, please advise of any and all positions \ncurrently available and/or posted on any job site or otherwise \nmade known to the public.   \n \n Randall Watson, an Institutional Human Resource Manager with the \nrespondent-employer, informed the claimant on May 3, 2024, “I received \nyour application for an Administrative Specialist I.  Your interview will be \nMay 6, 2024, at 9AM, at the Maximum-Security Unit[.]...”  \n The respondents’ attorney cross-examined the claimant: \nQ.  I see an e-mail addressed to you on Friday, May 3\nrd\n, that \nsays, “Received your application.”  Had you applied? \nA.  Yes.  They told me I had to reapply again.  I had to restart \nwhen my attorney reached out to – they told me I had to \nreapply all over again.  I had to start all over again....I had to \ninterview.   \n \n Nicholas C. Stewart thereafter e-mailed Randall Watson and several \nothers on May 3, 2024: \nRandall, we are reinstating her employment.  She does not \nhave to interview.  Just call her to come complete paperwork \n(computer based).  She needs to complete the onboarding \ndue to ARCareers protocol.... \n \n An e-mail from Randall Watson dated May 10, 2024 indicated that \nthe claimant’s employment with the respondents was to begin on May 13, \n2024.  The claimant testified that she returned to work on May 13, 2024. \n The respondents’ attorney cross-examined the claimant: \n\nBISHOP - H307524  8\n  \n \n \nQ.  So when you started May 13, you, actually, went back to \nyour original job? \nA.  Yes, and then, they moved me – about three or four weeks \nlater, they moved me to Commissary.   \n \n The claimant followed up with Dr. Norton on May 29, 2024:  “1.  \nOverall patient is doing well.  She was released from therapy.  At this point I \nbelieve she can return to work without restrictions.  I will also place her at \nMMI.  She will come back to see me as needed.”   \nA pre-hearing order was filed on June 27, 2024.  The claimant \ncontended, “The Claimant contends that she sustained injuries to her right \nwrist in the course and scope of her employment on or about November 9, \n2023.  Respondents initially accepted the claim and paid medical and \nindemnity benefits.  The Claimant was released by Dr. Norton on or about \nApril 23, 2024.  The Claimant has not yet been assigned a rating but she is \nentitled to PPD due to the surgery to repair her carpal tunnel syndrome and \nlesion of the radial nerve.  Claimant was terminated by the Respondents \nwhile off of work per her Dr. Norton’s order.  Once the Claimant was \nreleased, Respondents did not offer her a return to work despite a demand \nfor reinstatement.  Respondents finally reluctantly reinstated the Claimant \non or about May 20, 2024.  The Claimant contends that she is entitled to \nbenefits pursuant to 11-9-505(a)(1) during the refusal and attorney’s fees.  \nAll other issues are reserved.”   \n\nBISHOP - H307524  9\n  \n \n \n The respondents contended, “The Respondent contends that the \nclaimant reported having an injury to her right arm occurring November 9, \n2023 which Respondent accepted as compensable.  Respondent has \nprovided medical treatment reasonable and necessary for the claimant’s \ninjury, including carpal tunnel release surgery performed by Dr. Brian \nNorton on March 13, 2024.  Respondent paid TTD benefits to the claimant \nfrom November 10, 2023 until April 23, 2024 when she was released by Dr. \nNorton to return to work full duty.  The claimant has not been assigned an \nimpairment rating, but does have a follow up appointment with Dr. Norton.  \nThe claimant has in fact returned to work for her employer already since her \nrelease to work full duty, and therefore has no claim for benefits under §11-\n9-505(a)(1).  The Respondents reserve the right to raise additional \ncontentions, or to modify those stated herein, pending the completion of \ndiscovery.”   \n The parties agreed to litigate the following issues: \n1. Whether the claimant is entitled to PPD benefits. \n2. Whether the claimant is entitled to benefits under §11-9-\n505 related to the time between her termination and \nreinstatement. \n3. Whether the claimant is entitled to attorney’s fees.  All \nother issues are reserved. \n \nDr. Norton reported on July 1, 2024: \nKanekalon Bishop is a 43-year-old female that underwent \nright carpal tunnel release, intersection syndrome release, \nand radial tunnel release in March.  Following the surgery the \n\nBISHOP - H307524  10\n  \n \n \npatient completed a course of therapy.  She did well during \nher therapy and has gotten progressively better.  At her last \nvisit on 5/29/2024 I released her to drive to work without \nrestrictions.  She will come back to see me as needed. \nImpairment rating is 0%.  This impairment rating is based on \nthe AMA Guides to the Evaluation of Permanent Impairment, \nFourth Edition.  This statement is made with a reasonable \ndegree of medical certainty.   \n \n The claimant testified that her attorney arranged a visit at Functional \nTesting Centers, Inc.  Casey Garretson, an Occupational Therapist, \nprovided an “IMPAIRMENT EVALUATION SUMMARY – Upper Extremity” \nat Functional Testing Centers, Inc. on August 16, 2024.  Casey Garretson \nassigned the claimant a “Total Loss of Motion Impairment” of 1%.  Mr. \nGarretson noted, “Measurement of passive maximum radial and ulnar \ndeviation are recorded using goniometer readings using measurement \ntechnique below.”  Mr. Garretson measured the passive “Radial/Ulnar \nDeviation” to be 1%.  The claimant testified that the respondent-carrier had \nnot paid the 1% permanent impairment rating assigned by Casey \nGarretson.       \nDr. Norton reported on August 21, 2024: \nPatient follows up today after right radial tunnel release, right \nintersection release, and right carpal tunnel release performed \non 3/13/2024.  The patient had recurrent numbness and \ntingling in the hand as well as some cramping.  [She] has a \nnumbness and tingling ring and small finger.... \nAssessment \nStatus post right radial tunnel release, right intersection \nrelease, and right carpal tunnel release. \nRight cubital tunnel syndrome. \n\nBISHOP - H307524  11\n  \n \n \nPlan \n1. The patient now seems to be having recurrent numbness \nand tingling as well as cramping in the hand.  I did \nrecommend a repeat EMG/nerve conduction study for \nevaluation.  Patient remain on normal work without \nrestrictions.  Patient will come back see me after the nerve \ntest.   \n \nThe claimant contended the following on September 17, 2024: \nThe Claimant contends that she sustained injuries to her right \nwrist in the course and scope of her employment on or about \nNovember 9, 2023.  Respondents initially accepted the claim \nand paid medical and indemnity benefits.  The Claimant was \nreleased by Dr. Norton on or about April 23, 2024.  Dr. Norton \ndid not assign a rating but she is entitled to PPD due to the \nsurgery to repair her carpal tunnel syndrome and lesion of the \nradial nerve.  The Functional Testing Centers has assigned \nthe Claimant a 1% rating to the upper extremity which has \nbeen controverted by the Respondents.  Claimant was \nterminated by the Respondents while off of work per her Dr. \nNorton’s order.  Once the Claimant was released, \nRespondents did not offer her a return to work despite a \ndemand for reinstatement.  Respondents finally reluctantly \nreinstated the Claimant on or about May 13, 2024.  The \nClaimant contends that she is entitled to the 1% impairment \nrating; benefits pursuant to 11-9-505(a)(1) during the \nRespondents refusal to return her to work and attorney’s fees.  \nAll other issues are reserved.   \n \n The respondents corresponded with the administrative law judge on \nSeptember 24, 2024: \nPlease accept the attached exhibits on behalf of the \nRespondent in this matter, Arkansas Department of \nCorrections and Public Employee Claims Division (PECD), \nincluded is Respondent’s Medical Exhibit and Respondent’s \nDocumentary Exhibit which I will introduce into evidence at \nthe hearing set Thursday October 3, 2024 at 12 noon in Pine \nBluff.  Thank you for your assistance with this filing. \n\nBISHOP - H307524  12\n  \n \n \nThe claimant has added new contentions that she is entitled \nto an impairment rating she obtained herself from an \nunauthorized physician, and that Respondent should have to \npay for that unauthorized visit.  Respondent contends that it is \nnot liable for this unauthorized treatment, and that this was not \na reasonable and necessary medical treatment since the \ntreating physician has already addressed the claimant’s \npermanent impairment and found that the claimant has 0% \npermanent impairment.  The claimant had demanded on July \n29 a return visit to Dr. Norton, who had performed the \nclaimant’s surgery.  Respondent notified the claimant on July \n30 that the return visit to Dr. Norton would be provided, on \nAugust 2 that the doctor’s office was trying to reach the \nclaimant, and on August 7 that an appointment was scheduled \nAugust 21.  The claimant notified Respondent on August 20 \nthat she had obtained her own impairment rating from an \nunauthorized provider on August 16.  At the August 21 \nappointment, Dr. Norton ordered a new EMG study of the \nclaimant, with a follow up visit afterward.  These visits were \nscheduled September 19 and 24 respectively, however, the \nclaimant elected to reschedule the appointments October 10 \nand 16, after the hearing set October 3, while continuing to \ncontend that she needs treatment and that she has a \npermanent impairment.  Respondent contends that the \nclaimant’s contentions are contradictory, that Respondent is \nnot liable for treatment the claimant had from an unauthorized \nafter she was given the appointment she demanded from the \nauthorized provider, that permanent impairment is premature \nif the claimant is seeking additional treatment, and that the \nclaimant has not established she is entitled to an impairment \nrating at this time. \n \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on September 24, 2024.  The ACCIDENT INFORMATION section \nof the Form AR-N indicated that the Date of Accident was November 9, \n2023:  “The employee stated she was handing something to someone at \n\nBISHOP - H307524  13\n  \n \n \nthe gate.  The gate went back and closed on her right arm, jamming it.  She \nscreamed and someone opened the gate for her to release her arm.”   \nA hearing was held on October 3, 2024.  The claimant testified on \ndirect examination: \n Q.  What is your job title and position now? \n A.  Commissary down at Tucker Work Release. \n Q.  So you’re at a different facility? \n A.  Yes. \n Q.  Doing a different job? \n A.  Yes. \n Q.  Are you making the same amount of money, though? \n A.  Yes.   \nQ.  Okay.  And since returning to work in May, you’ve had \nadditional problems with your right arm, correct? \nA.  That’s correct.... \nQ.  And as I understand it and from the records that have \nbeen introduced, Dr. Norton has ordered some additional \ntesting.  He’s ordered a new EMG? \nA.  Yes.   \nQ.  And a follow-up visit, after you have that nerve conduction \nstudy? \nA.  Yes. \nQ.  You have not had that? \nA.  No. \nQ.  But it’s upcoming? \nA.  Yes. \nQ.  And you’re still having problems with that arm? \nA.  Yes.   \nJUDGE HOWE:  Well, is that treatment something that’s at \nissue here? \n  MR. CALDWELL:  The additional treatment, no. \n  JUDGE HOWE:  Okay. \nMR. CALDWELL:  The respondents have accepted and \nthey’re paying the additional treatment by Dr. Norton. \n \n The respondents’ attorney cross-examined the claimant: \n\nBISHOP - H307524  14\n  \n \n \nQ.  Do you like the treatment that you’ve had so far with Dr. \nNorton? \n  A.  Yes. \nQ.  Do you have any problems or issues with Dr. Norton’s \ntreatment? \n  A.  No. \nQ.  Okay.  What about that surgery?  I understand that you \nhad a surgery with Dr. Norton.  We just discussed all the \ntreatment you had.  Do you feel like the surgery helped your \nsymptoms? \nA.  No. \n \n After the October 3, 2024 hearing, the respondents proffered EMG \nand NCV findings from OrthoArkansas, dated October 10, 2024 with the \nfollowing impression: \n  Normal study. \n1. No evidence of right median or ulnar mononeuropathy. \n2. No evidence of right cervical radiculopathy.   \nRecommendations:  Follow up with Dr. Norton.  Thank you.   \n \n The respondents also proffered a report from Dr. Norton dated \nOctober 16, 2024: \nPatient follows up today after right radial tunnel release, right \nintersection release, and right carpal tunnel release performed \non 3/13/2024.  Nerve conduction study was performed on \n10/10/2024.  I went over the nerve study with her today.  The \nnerve study was normal.  The patient continues to have vague \nsymptoms in the right arm.... \nAssessment \n1. Status post right radial tunnel release, right intersection \nrelease, and right carpal tunnel release – 3/13/2024. \n2. Right cubital tunnel syndrome. \n3. Likely right thoracic outlet syndrome. \nPlan \n1. I believe the patient likely has thoracic outlet syndrome.  I \nam going to refer her to therapy for some scalene \n\nBISHOP - H307524  15\n  \n \n \nexercises.  I will see her back in 6 weeks for repeat \nevaluation....Patient will return to the office as needed.   \n \nOn October 25, 2024, the respondents served a MOTION TO \nINTRODUCE NEWLY DISCOVERED EVIDENCE.  The respondents \nprayed “that the aforementioned newly discovered evidence be introduced \ninto the record on this claim or that further hearing for the purpose of \nintroducing additional evidence be granted pursuant to Ark. Code Ann. §11-\n9-705(c)(1)(C).”  The claimant requested that the motion be denied.   \nThe respondents then proffered yet another set of medical records, \nincluding a report from Dr. Norton dated December 11, 2024: \nPatient follows up today after right radial tunnel release, right \nintersection release, and right carpal tunnel release performed \non 3/13/2024.  Nerve conduction study was performed on \n10/10/2024.  The patient continues to have vague pain and \nwrist in the hand.  I recommended therapy for thoracic outlet \nsyndrome.  She states she has not started this yet.... \nRight wrist:  The wound has healed without evidence of \ninfection.  There is no significant swelling, inflammation, \nerythema, or edema. \nRight hand:  The wound has healed without evidence of \ninfection.  There is no significant swelling, inflammation, \nerythema, or edema.  There is full motion in the fingers.  \nSensory exam is intact to light touch.  There is no \nhyperesthesia or hypoesthesia along the palm of the hand.   \nAssessment \n1. Status post right radial tunnel release, right intersection \nrelease, and right carpal tunnel release – 3/13/2024. \n2. Right cubital tunnel syndrome. \n3. Likely right thoracic outlet syndrome. \nPlan \n1. I confirm today that the fax was sent over to JRMC \ntherapy.  Will once again send another therapy order....I \nstill recommend therapy for thoracic outlet syndrome.  She \n\nBISHOP - H307524  16\n  \n \n \nwill continue to work without restrictions.  She will see me \nback in 4 to 6 weeks.   \n \nOn December 12, 2024, the respondents served a SECOND \nMOTION TO INTRODUCE NEWLY DISCOVERED EVIDENCE.  The \nrespondents prayed “that the aforementioned newly discovered evidence \nbe introduced into the record on this claim or that further hearing for the \npurpose of introducing additional evidence be granted pursuant to Ark. \nCode Ann. §11-9-705(c)(1)(C).”  The claimant requested that the motion be \ndenied. \nAn administrative law judge filed an opinion on December 31, 2024.  \nThe administrative law judge denied the respondents’ motions to introduce \nnewly-discovered evidence.  The administrative law judge found that the \nclaimant’s visit at Functional Testing Centers, Inc. was reasonably \nnecessary, and that the claimant proved she was entitled to a 1% \npermanent anatomical impairment rating.  The administrative law judge \nfound that the claimant proved she was entitled to additional compensation \nin accordance with Ark. Code Ann. §11-9-505(Repl. 2012).   \n The respondents appeal to the Full Commission.   \nII.  ADJUDICATION \nA.  Medical Treatment \nThe employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \n\nBISHOP - H307524  17\n  \n \n \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 70 (1984).   \nAn administrative law judge found in the present matter, “4.  The \nclaimant has met her burden on proving that the impairment evaluation was \nreasonably necessary treatment for which the respondents are responsible \nfor the cost.”  The Full Commission does not affirm this finding.  The \nclaimant sustained a compensable scheduled injury on November 9, 2023.  \nThe claimant testified that an automatic gate closed on her right arm.  An \nexamining physician diagnosed right forearm pain and a right forearm \ncontusion.  The claimant began treating with Dr. Norton on January 2, 2024.  \nA Nerve Conduction Study/EMG taken January 30, 2024 showed carpal \ntunnel syndrome and cubital tunnel syndrome.   \nOn March 13, 2024, Dr. Norton performed a right radial tunnel \nrelease, right carpal tunnel release, and right second dorsal compartment \n\nBISHOP - H307524  18\n  \n \n \ntenosynovectomy.  Dr. Norton provided follow-up treatment after surgery.  \nDr. Norton determined on May 29, 2024 that the claimant had reached \nmaximum medical improvement.  It is well-settled that a claimant may be \nentitled to ongoing medical treatment after the healing period has ended, if \nthe medical treatment is geared toward management of the claimant’s \ninjury.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 \n(2004), citing Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d \n845 (1983).   \nNearly three months after Dr. Norton’s assessment of maximum \nmedical improvement, the claimant’s attorney arranged for an “Impairment \nEvaluation” at Functional Testing Centers, Inc.  Casey Garretson, an \nOccupational Therapist, saw the claimant at Functional Testing Centers on \nAugust 16, 2024.  Casey Garretson did not provide or recommend \noccupational therapy but instead assessed a purported anatomical \nimpairment rating.  The evidence does not demonstrate that the \n“Impairment Evaluation Summary” prepared by Casey Garretson can be \ninterpreted as reasonably necessary medical treatment in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  The record does not show that \nthe impairment evaluation was “geared toward management of the \nclaimant’s injury.”  See Patchell, supra.  The Full Commission therefore \nreverses the administrative law judge’s finding that the impairment \n\nBISHOP - H307524  19\n  \n \n \nevaluation was reasonably necessary in connection with the compensable \nscheduled injury sustained by the claimant on November 9, 2023.   \nB.  Additional Compensation \nArk. Code Ann. §11-9-505(a)(Repl. 2012) provides, in pertinent part: \n(1) Any employer who without reasonable cause refuses to \nreturn an employee who is injured in the course of \nemployment to work, where suitable employment is \navailable within the employee’s physical and mental \nlimitations, upon order of the Workers’ Compensation \nCommission, and in addition to other benefits, shall be \nliable to pay to the employee the difference between \nbenefits received and the average weekly wages lost \nduring the period of the refusal, for a period not exceeding \none (1) year.   \n \nAn administrative law judge found in the present matter, “I find that \nthe claimant is entitled to benefits under A.C.A. §11-9-505 for the time \nbetween her release, beginning 24 April 2024, and her eventual return to \nwork on 13 May 2024.”  The Full Commission affirms this finding.  Before \nArk. Code Ann. §11-9-505(a)(Repl. 2012) applies, several requirements \nmust be met.  See, Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 \nS.W.2d 237 (1996).  The employee must (1) prove by a preponderance of \nthe evidence that she sustained a compensable injury; (2) that suitable \nemployment within her physical and mental limitations is available with the \nemployer; (3) that the employer has refused to return her to work; and (4) \nthat the employer’s refusal to return her to work was without reasonable \ncause.  Id.   \n\nBISHOP - H307524  20\n  \n \n \nIn the present matter, the claimant (1) proved by a preponderance of \nthe evidence that she sustained a compensable injury.  The claimant \nsustained a compensable scheduled injury on November 9, 2023.  The \nrespondents began paying temporary total disability benefits on November \n10, 2023.  Dr. Norton subsequently performed surgery, and he released the \nclaimant to return to work with no restrictions on April 23, 2024.  The \nrespondents paid temporary total disability benefits until April 23, 2024.   \nOn April 26, 2024, the claimant’s attorney corresponded with the \nrespondents and “demanded” that the claimant immediately be returned to \nwork.  The record indicates that the claimant applied for resumed \nemployment with the respondents, and that the respondent-employer \ninitially planned to require the claimant to interview for re-employment.  \nHowever, the respondents’ Human Resources/Training Administrator \ncommunicated on May 3, 2024, “[W]e are reinstating her employment.  She \ndoes not have to interview.”  The claimant testified that she returned to her \nformer employment position with the respondents on May 13, 2024.  The \nevidence of record indicates that (2) suitable employment was available \nwith the respondents, (3) the employer for a time refused to return the \nclaimant to work, and (4) that the employer did not present a reasonable \ncause for initially refusing to return the claimant to work.  The Full \nCommission therefore affirms the administrative law judge’s finding that “the \n\nBISHOP - H307524  21\n  \n \n \nclaimant is entitled to benefits under A.C.A. §11-9-505 for the time between \nher release, beginning 24 April 2024, and her eventual return to work on 13 \nMay 2024.”     \nC.  Anatomical Impairment/Admission of Newly-Discovered \nEvidence \nPermanent impairment is any functional or anatomical loss remaining \nafter the healing period has been reached.  Johnson v. Gen. Dynamics, 46 \nArk. App. 188, 878 S.W.2d 411 (1994).  The Commission has adopted the \nAmerican Medical Association Guides to the Evaluation of Permanent \nImpairment (4\nth\n ed. 1993) to be used in assessing anatomical impairment.  \nSee Commission Rule 34; Ark. Code Ann. §11-9-521(h)(Repl. 2012).  It is \nthe Commission’s duty, using the Guides, to determine whether the \nclaimant has proved she is entitled to a permanent anatomical impairment.  \nPolk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).   \nAny determination of the existence or extent of physical impairment \nshall be supported by objective and measurable physical findings.  Ark. \nCode Ann. §11-9-704(c)(1)(B)(Repl. 2012).  Objective findings are those \nfindings which cannot come under the voluntary control of the patient.  Ark. \nCode Ann. §11-9-102(16)(A)(i)(Repl. 2012).  Although it is true that the \nlegislature has required medical evidence supported by objective findings to \nestablish a compensable injury, it does not follow that such evidence is \n\nBISHOP - H307524  22\n  \n \n \nrequired to establish each and every element of compensability.  Stephens \nTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  All that \nis required is that the medical evidence be supported by objective findings.  \nSingleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006).  \nMedical opinions addressing impairment must be stated within a reasonable \ndegree of medical certainty.  Ark. Code Ann. §11-9-102(16)(B)(Repl. 2012).   \nPermanent benefits shall be awarded only upon a determination that \nthe compensable injury was the major cause of the disability or impairment.  \nArk. Code Ann. §11-9-102(F)(ii)(a)(Repl. 2012).  “Major cause” means \n“more than fifty percent (50%) of the cause,” and a finding of major cause \nshall be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(Repl. 2012).  Preponderance of the evidence \nmeans the evidence having greater weight or convincing force.  \nMetropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d \n252 (2003).     \nAn administrative law judge found in the present matter, “3.  The \nclaimant has met her burden on proving that she is entitled to PPD benefits \nconsistent with a one percent (1%) impairment rating to the whole body.\"  \nThe Full Commission does not affirm this finding.  We find, based on the \ncurrent record, that the claimant did not prove she sustained a permanent \nanatomical impairment as a result of her compensable injury. \n\nBISHOP - H307524  23\n  \n \n \nThe claimant sustained a compensable injury on November 9, 2023 \nwhen an automatic gate closed on her right arm.  A Nerve Conduction/EMG \nstudy taken January 30, 2024 was abnormal, showing carpal tunnel \nsyndrome and cubital tunnel syndrome.  Dr. Norton performed a right radial \ntunnel release, right carpal tunnel release, and second dorsal compartment \ntenosynovectomy on March 13, 2024.  Dr. Norton opined on May 29, 2024 \nthat the claimant had reached maximum medical improvement.  Dr. Norton \nreleased the claimant to return to work without restrictions, and he did not \nassign a permanent anatomical impairment rating.  Dr. Norton specifically \nreported on July 1, 2024, “Impairment rating is 0%.  This impairment rating \nis based on the AMA Guides to the Evaluation of Permanent Impairment, \nFourth Edition.  This statement is made with a reasonable degree of \nmedical certainty.”   \nThe Commission has the authority to accept or reject a medical \nopinion and the authority to determine its medical soundness and probative \nforce.  Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 \n(1999).  The Full Commission finds that Dr. Norton’s opinion is corroborated \nby the record and is entitled to significant evidentiary weight.  Dr. Norton, \nthe treating surgeon, opined that the claimant did not sustain a permanent \nanatomical impairment as a result of the compensable injury and surgery.  \nThe Full Commission recognizes the opinion of occupational therapist \n\nBISHOP - H307524  24\n  \n \n \nCasey Garretson, who stated on August 16, 2024 that the claimant had \nsustained permanent anatomical impairment in the amount of 1%.  Mr. \nGarretson based his opinion in part on purported “Radial/Ulnar Deviation.”  \nIt is within the Commission’s province to weigh all of the medical evidence \nand to determine what is most credible.  Minnesota Mining & Mfg. v. Baker, \n337 Ark. 94, 989 S.W.2d 151 (1999).  In the present matter, the Full \nCommission places greater evidentiary weight on the opinion of the treating \nsurgeon than we do a one-time evaluation by an occupational therapist. \nThe claimant did not prove by a preponderance of the evidence that she \nsustained a permanent anatomical impairment as a result of the \ncompensable injury and surgery.   \nThe respondents have filed two motions to “Introduce Newly-\nDiscovered Evidence.”  In order to introduce newly-discovered evidence, \nthe moving party must prove that the evidence is relevant, is not \ncumulative, would change the result, and the moving party must prove it \nwas diligent.  Haygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982), \nciting Mason v. Lauck, 232 Ark. 891, 340 S.W.2d 575 (1960).  An \nadministrative law judge found in the present matter, “The respondents’ \nmotions to introduce new evidence are denied.”  The Full Commission does \nnot affirm this finding.  We find that the new evidence should be admitted \ninto the record.   \n\nBISHOP - H307524  25\n  \n \n \nThe claimant testified on October 3, 2024 that she approved of the \ntreatment Dr. Norton had provided her, but that the claimant asserted that \nthe surgery performed by Dr. Norton did not relieve her symptoms.  The \nclaimant testified that Dr. Norton had recommended additional diagnostic \ntesting.  The respondents have proffered the results of EMG/NCV findings \nperformed at OrthoArkansas on October 10, 2024.  This electrodiagnostic \ntesting showed “no evidence of right median or ulnar mononeuropathy” and \n“no evidence of right cervical radiculopathy.”  The respondents also seek to \nadmit into the record examinations performed by Dr. Norton on October 16, \n2024 and December 11, 2024.  In these follow-up visits, Dr. Norton \ndiagnosed “right cubital tunnel syndrome” and “Likely right thoracic outlet \nsyndrome.”   \nThe Workers’ Compensation Commission has broad discretion with \nreference to admission of evidence, and our decision will not be reversed \nabsent a showing of abuse of discretion.  Brown v. Alabama Electric Co., 60 \nArk. App. 138, 959 S.W.2d 753 (1998).  The Commission is directed to \n“conduct the hearing in a manner as will best ascertain the rights of the \nparties.”  Bryant v. Staffmark, 76 Ark. App. 64, 61 S.W.3d 856 (2001).  The \nCommission should be more liberal with the admission of evidence, rather \nthan more stringent.  Id. \n\nBISHOP - H307524  26\n  \n \n \nThe Full Commission finds in the present matter that the newly-\ndiscovered evidence proffered by the respondents should be admitted into \nthe record.  In said evidence, Dr. Norton described his additional diagnostic \ntesting treatment about which the claimant had already testified at the \nhearing held October 3, 2024.  Dr. Norton’s follow-up diagnoses beginning \nOctober 16, 2024 included right cubital tunnel syndrome and likely right \nthoracic outlet syndrome.  Dr. Norton did not assess a permanent \nanatomical impairment rating, which reiterates Dr. Norton’s finding on July \n1, 2024 that the claimant had not sustained a permanent anatomical \nimpairment.  Dr. Norton described his additional treatment efforts, which \nincluded physical therapy and a repeat evaluation.  The Full Commission \nfinds that the newly-discovered evidence is relevant, is not cumulative, and \nwould change the result in that it reiterates Dr. Norton’s earlier conclusion \nthat the claimant had not sustained a permanent anatomical impairment.  \nThe Full Commission also finds that the respondents were diligent in \nintroducing the newly-discovered evidence, which evidence was not yet in \nexistence at the time of the October 3, 2024 hearing.  The Full Commission \ntherefore directs that the newly-discovered evidence proffered by the \nrespondents shall be admitted into the record.  \nAfter our de novo review of the entire record currently before us, the \nFull Commission finds that the claimant’s evaluation at Functional Testing \n\nBISHOP - H307524  27\n  \n \n \nCenters, Inc. was not reasonably necessary in accordance with Ark. Code \nAnn. §11-9-508(a)(Repl. 2012).  We find that the claimant did not prove she \nsustained a permanent anatomical impairment as a result of the \ncompensable injury.  The Full Commission affirms the administrative law \njudge’s finding that the claimant was “entitled to benefits under A.C.A. §11-\n9-505 for the time between her release, beginning 24 April 2024, and her \neventual return to work on 13 May 2024.”  Based on this award of additional \ncompensation, the claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \nin part on appeal, the claimant’s attorney is entitled to an additional fee of \nfive hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-\n715(b)(1)(Repl. 2012). \nIT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton Concurs, in part, and Dissents, in part. \n \n \nCONCURRING AND DISSENTING OPINION \n \nI concur with the finding that the claimant failed to prove the \nevaluation at Functional Testing Centers, Inc. was reasonably necessary in \n\nBISHOP - H307524  28\n  \n \n \naccordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012), that she failed \nto prove she was entitled to a permanent anatomical impairment rating, and \nthat the respondents’ Motion to Introduce Newly Discovered Evidence \nshould have been granted.  However, I must respectfully dissent from the \nfinding that the claimant proved she was entitled to additional compensation \nin accordance with Ark. Code Ann. §11-9-505(a)(1)(Repl. 2012). \nThe claimant sustained a compensable injury on November 9, 2023. \nBetween January 2, 2024, and May 29, 2024, the claimant underwent \nsubstantial treatment with Dr. Brian Norton.  Dr. Norton released the \nclaimant at MMI with a zero percent (0%) impairment rating on May 29, \n2024.  \nThe claimant was returned to work at full duty and her employment \nwas reinstated on May 3, 2024.  She resumed work on May 13, 2024.  \nOur Rules provide that any employer who without reasonable cause \nrefuses to return an employee who is injured in the course of employment \nto work, where suitable employment is available within the employee's \nphysical and mental limitations, upon order of the Workers' Compensation \nCommission, and in addition to other benefits, shall be liable to pay to the \nemployee the difference between benefits received and the average weekly \nwages lost during the period of the refusal, for a period not exceeding one \n(1) year.  Ark. Code Ann. § 11-9-505(a)(1). \n\nBISHOP - H307524  29\n  \n \n \n Our Courts have ruled that for this provision to be applicable: \nan employee must prove by a preponderance of the evidence (1) that he \nsustained a compensable injury; (2) that suitable employment which is \nwithin his physical and mental limitations is available with the employer; (3) \nthat the employer has refused to return him to work; and (4) that the \nemployer's refusal to return him to work is without reasonable cause. \nRoark v. Pocahontas Nursing & Rehab., 95 Ark. App. 176, 235 S.W.3d 527 \n(2006) (citing Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d \n237 (1996)). \n In the present case, the respondent employer never refused to return \nthe claimant to work.  The claimant was released to work full duty by Dr. \nNorton on May 3, 2024.  That day, the claimant’s employment was \nreinstated to the same job she had prior to her injury.  Her start date was \nMay 13, 2024.  While the claimant may have initially been told that she \nwould need to apply and have an interview to return to employment, that \nwas not the case, and her employment was reinstated to the same job she \nhad prior to her injury on the same day.  The claimant only needed to \ncomplete paperwork and onboarding before returning. \n In his opinion, the ALJ seems to describe an uncertainty of \nemployment as a basis for the award of benefits under § 11-9-505. There is \nno basis in our rules for this finding, nor was there any uncertainty that the \n\nBISHOP - H307524  30\n  \n \n \nclaimant’s position would be reinstated after her release to return to work. \nFactually, the respondent employer never refused to return the claimant to \nwork. \n The ALJ stated: \n[t]he respondents argued at the hearing that the claimant’s \ntime without employment or any benefits should be excused \nas distinct from a “refusal” to reinstate her due to the nature \nof prison operations and the administrative time and process \nit takes to onboard someone into such a role.  I do not find \nthe caselaw supports such a distinction or demurrer from an \nemployer’s obligations under the law. The claimant should \nhave been reinstated upon her release without restriction. \n \nIn this holding, the ALJ is carving out an area of our Rules that is not \ncontemplated in the statute.  It is untenable to expect that every employer in \nthe state immediately return an injured employee to work without any \nprocessing delay.  The statute requires for a claimant to be entitled to \nrecovery under this statute, an employer must refuse to return an employee \nto work without reasonable cause.  \nThe ALJ’s findings far exceed the language of the statute, and it is \nclear that there was absolutely no refusal to return the claimant to work. \nThe ALJ should be reversed on this issue. \nAccordingly, for the reasons set forth above, I concur, in part and \ndissent, in part. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":46278,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H307524 KANEKALON BISHOP, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTIONS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JULY 3, 2025","outcome":"reversed","outcomeKeywords":["reversed:1","granted:1"],"injuryKeywords":["back","wrist","carpal tunnel","cervical","thoracic"],"fetchedAt":"2026-05-19T22:29:44.136Z"},{"id":"full_commission-H204111-2025-07-03","awccNumber":"H204111","decisionDate":"2025-07-03","decisionYear":2025,"opinionType":"full_commission","claimantName":"Peggy Clemons","employerName":"South County School District","title":"CLEMONS VS. SOUTH COUNTY SCHOOL DISTRICT AWCC# H204111 July 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Clemons_Peggy_H204111_20250703.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Clemons_Peggy_H204111_20250703.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H204111 \n \nPEGGY CLEMONS, \nEMPLOYEE \n \nCLAIMANT \nSOUTH COUNTY SCHOOL DISTRICT,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSOCIATION \nWORKERS’ COMPENSATION TRUST, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JULY 3, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents represented by the HONORABLE CAROL LOCKARD \nWORLEY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJanuary 21, 2025.  The administrative law judge found that the claim should \nbe dismissed without prejudice.  After reviewing the entire record de novo, \nthe Full Commission affirms the administrative law judge’s opinion.     \n The record indicates that the claimant became employed with the \nrespondents, South Conway School District, on May 10, 2021.  A \nWORKERS COMPENSATION – FIRST REPORT OF INJURY OR \nILLNESS was prepared on February 10, 2022.  The FIRST REPORT OF \nINJURY OR ILLNESS indicated that the Date of Injury was February 9, \n\nCLEMONS - H204111  2\n  \n \n \n2022:  “On Ice or Snow, Put a student in the car, she slipped and fell on ice \n– Head, Right Elbow, Hip, Ribs.”  The record indicates that an adjuster \nwrote “Medical Only” on the FIRST REPORT.   \n An MRI of the claimant’s cervical spine was taken on April 1, 2022 \nwith the following impression: \n1. Unremarkable exam of the cervical spinal cord and canal. \n2. No cervical spinal canal or neural foraminal stenosis. \n \n Dr. Barry D. Baskin provided an evaluation on May 26, 2022: \nMs. Clemons is back in for follow-up.  I saw her initially on \nMay 26, 2022.  She has had 4 weeks of physical therapy with \nCharton Physical Therapy in Morrilton.  She states she has \ngotten some temporary benefit, but she continues to complain \nof pain in her neck....She has had a normal examination last \nvisit....Her MRI of the cervical spine April 1, 2022, only \nshowed degenerative changes.  No posttraumatic lesions \nwere identified.  Ms. Clemons states she has gone and gotten \nher ears evaluated about a year and a half ago because she \nwas having some decrease in her hearing, and she was told \nshe had some mild hearing loss.  I told her I did not think \ngetting a hearing evaluation would be related to her work \nfall.... \nI have released her from my care.  I think she is at maximum \nmedical improvement.  She comes across to me as fairly \ndemanding that I get an ear evaluation and that she be on \nlong-term lifting restrictions based on essentially negative \nexaminations and subjective complaints.  I explained objective \nand subjective, and I also explained the difference in private \ninsurance and Workers’ Compensation insurance and the \nneed for objective findings.  I also explained to her, if she \ndoes not agree with me putting her at maximum medical \nimprovement, then she can seek a second opinion.  Her \nappointment was attended by Stacey Henderson, RN, Case \nManager, and she is aware of my opinion regarding Ms. \nClemons.   \n \n\nCLEMONS - H204111  3\n  \n \n \n The record indicates that the claimant filed a Form AR-C, CLAIM \nFOR COMPENSATION, on June 6, 2022.  The ACCIDENT INFORMATION \nsection of the Form AR-C indicated that the Date of Accident was February \n9, 2022.  The claimant wrote, “I was loading car riders into their cars at end \nof school day 3:30 pm.  The school ramp is approximately 60 ft long.  Only \n2 ft of ice was scraped on each end for students and staff to exit and enter.  \nThe remaining 56 ft was iced over.  Of course parents vehicles were driving \npast the 2 ft scraped area.  After loading a student I turned to walk onto the \nramp.  Everything went black.  Shrek (sic) from the students & teachers \nawoke me.  Headache, neck, back,  should (sic), foot, ears loudly ringing.  \nUpper/lower back pain.”  The CLAIM INFORMATION section of the Form \nAR-C indicated that the claim was for “initial” benefits, specifically \n“Permanent Total Disability,” “Attorney Fees,” and “Medical Expenses.”   \n The respondents’ attorney corresponded with the Clerk of the \nCommission on April 12, 2023 and stated in part, “No bona fide hearing \nrequest has been made since the filing of the Form AR-C.  In light of this, \nRespondents are requesting this claim be dismissed for lack of prosecution \nso that the litigation aspect of this claim can be closed.  Please assign this \nmatter to an administrative law judge for consideration of this Motion and \nentry of an order regarding the same.”   \n\nCLEMONS - H204111  4\n  \n \n \n A Program Specialist in the Adjudication Division informed the \nparties on May 1, 2023, “Pursuant to claimant’s request for a hearing, \nrespondent’s Motion to Dismiss will be held in abeyance.”  The \nrespondents’ attorney informed a representative of the Commission on May \n9, 2023, “I am in receipt of the Form C filed by Claimant today.  This is to \nconfirm that my client accepted injuries to Claimant’s head, right elbow, hip \nand ribs on 2/9/22.  This is an accepted medical only claim, and all other \nbenefits have been denied.” \n An administrative law judge filed an opinion on January 21, 2025.  \nThe administrative law judge ordered, “Pursuant to the above statement of \nthe case, and the multiple issues and hearings in regard to this matter, it is \ndetermined that the claimant has taken little to no action to actively pursue \nher claim over an extended period of time and there is no alternative but to \ngrant the Motion to Dismiss this claim in its entirety, without prejudice, for \nfailure to prosecute.”   \n After reviewing the entire record de novo, the Full Commission \naffirms the administrative law judge’s opinion granting the respondents’ \nMotion to Dismiss.  The Full Commission finds that the claim should be \ndismissed for want of prosecution in accordance with Commission Rule \n099.13.  Said dismissal shall be without prejudice in accordance with Ark. \nCode Ann. §11-9-702(b)(Repl. 2012).  We note that the claimant has not \n\nCLEMONS - H204111  5\n  \n \n \nsubmitted any relevant medical evidence demonstrating that she is entitled \nto additional medical treatment in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012), and the claimant has not submitted relevant evidence \ndemonstrating that she is entitled to any periods of temporary disability, \npermanent disability, or other appropriate workers’ compensation benefits.   \n The Full Commission therefore affirms the administrative law judge’s \ndismissal of the claim, without prejudice.   \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":6921,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204111 PEGGY CLEMONS, EMPLOYEE CLAIMANT SOUTH COUNTY SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WORKERS’ COMPENSATION TRUST, INSURANCE CARRIER/TPA RESPONDENT","outcome":"dismissed","outcomeKeywords":["affirmed:2","dismissed:5","granted:1","denied:1"],"injuryKeywords":["hip","cervical","back","neck"],"fetchedAt":"2026-05-19T22:29:44.142Z"},{"id":"full_commission-H401589-2025-07-02","awccNumber":"H401589","decisionDate":"2025-07-02","decisionYear":2025,"opinionType":"full_commission","claimantName":"Becky Keeter","employerName":"Clay Maxey Chevrolet Cadillac","title":"KEETER VS. CLAY MAXEY CHEVROLET CADILLAC AWCC# H401589 July 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Keeter_Becky_H401589_20250702.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Keeter_Becky_H401589_20250702.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H401589 \n \nBECKY L. KEETER, EMPLOYEE    CLAIMANT \n \nCLAY MAXEY CHEVROLET CADILLAC, \nEMPLOYER                                                                           RESPONDENT \n \nCENTRAL ARKANSAS AUTO DEALERS/ \nRISK MANAGEMENT RESOURCES, \nCARRIER/TPA                                                                       RESPONDENT \n \nOPINION FILED JULY 2, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE  DANIEL E. WREN, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed February 5, 2025. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. That the Arkansas Workers’ Compensation \nCommission has jurisdiction over this claim. \n  \n2. An employer/employee relationship existed at all \npertinent times.  \n \n3. Claimant suffered a compensable injury to her back.  \n\n \nKeeter-H401589    2  \n \n \n \n4. The claimant earned an average weekly wage of \n$1322.91, sufficient for a TTD/PPD rate of \n$835.00/$626.00 respectively.  \n \n5. That the issue of “termination for cause” was not barred \nby collateral estoppel.  \n \n6. That the claimant has failed to satisfy the required \nburden of proof to prove by a preponderance of the \nevidence that she is entitled to temporary total \ndisability.  \n \n7. That all remaining issues are moot.  \n \n8. If not already paid, the respondents are ordered to pay \nfor the cost of the transcript forthwith. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the February 5, 2025 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n  \n\n \nKeeter-H401589    3  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n  The ALJ found that the Claimant failed to prove by a preponderance \nof  the  evidence  that  she  is  entitled  to  temporary  total  disability.  After \nconducting a thorough review of the record, I would find that the Claimant is \nentitled to temporary total disability benefits from January 19, 2024, to a date \nyet to be determined. \n Temporary total disability benefits are appropriate where the employee \nremains in the healing period and is totally incapacitated from earning wages. \nArk. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). \nThe Claimant has the burden of proof in showing that he remains in his \nhealing period and is totally incapacitated from earning wages. Id. According \nto Arkansas Code Annotated § 11-9-526:  \n\n \nKeeter-H401589    4  \n \n \nIf  any  injured  employee  refuses  employment \nsuitable  to  his  or  her  capacity  offered  to  or \nprocured for him or her, he or she shall not be \nentitled  to  any  compensation  during  the \ncontinuance of the refusal, unless in the opinion \nof the Workers’ Compensation Commission, the \nrefusal is justifiable.  \n \n On September 1, 2023, Claimant suffered a compensable injury to her \nlower  back  while  working  for  the  Respondent.  On  September  15,  2023, \nClaimant was seen by Kimberly Peters, APRN, and diagnosed with a strain \nof the Claimant’s lumbar region and given the work restrictions of “Continue \nlight duty. No bending over. No lifting more than 10 pounds.” On January 8, \n2024, Claimant underwent an MRI which showed:  \n  IMPRESSION: \nDegenerative   changes   throughout   the \nlumbosacral spine, and at the L1-2 level, there is \nno central canal or neural foraminal stenosis.  \nThe L2-3 and L3-4 levels reveal bony spurring \nand early disc disease and flattening of the thecal \nsac but not causing severe central canal neural \nforaminal stenosis.  \nAt the L4-5 level, there are early type I Modic \nchanges  with  a  herniated  nucleus  pulposus \nflattening the thecal sac and narrowing the left \nneural foramen and the right neural foramen to \nsome degree.  \nFacet joint disease is present.  \n[Unreadable] S1 levels more normal appearing.  \nThis is rather dramatically changed since 2015.  \n\n \nKeeter-H401589    5  \n \n \nClaimant followed up with Kimberly Peters, APRN after her MRI on January \n11, 2024, and was diagnosed with a herniation of the intervertebral disc of \nlumbosacral region. Peters gave the Claimant the work restrictions of “Light \nduty. Wear lumbar back support. Sit down job best until further evaluation. \nNo lifting more than 1 pound. No bending over to pick anything up off the \nfloor. No quick twisting or turning.” Claimant was fired for cause from her \nposition with the Respondent on January 19, 2024. On February 5, 2024, \nClaimant followed up with Dr. Wayne Bruffett who diagnosed Claimant with \nherniated nucleus polyposis L4-5 with bilateral radiculopathy worse on the \nright.  Dr.  Bruffett  stated  that  Claimant’s  “current  reported  symptoms  do \ncorrelate with the mechanism of injury,” and recommended the Claimant for \na complete discectomy and fusion.  \n In Tyson Poultry, Inc., v. Narvaiz, the Supreme Court of Arkansas \nfound  that  “when  an  employer  terminates  a  workers’  compensation \nClaimant’s employment due to his misconduct, the Claimant has not refused \nemployment; rather, his employment has been terminated at his employer’s \noption.” Claimant was placed on strict work restrictions on January 11, 2024 \nby  Kimberly  Peters, APRN  as  a  result  of  her  compensable  injuries  she \nreceived  while  working  for  the  Respondent.  Claimant  was  then  fired  for \nalleged misconduct on January 19, 2024, similar to the facts of Tyson v. \n\n \nKeeter-H401589    6  \n \n \nNarvaiz. I find that at the time of the termination, Claimant was unable to earn \nwages due to her compensable injury and resulting work restrictions and that \nit is reasonable to conclude that she was totally incapacitated. Claimant \nclearly was within her healing period, and Claimant did not refuse to work \ndue to her termination with Respondent. Therefore, I find that the Claimant is \nentitled to temporary total disability from January 19, 2024, to a date yet to \nbe determined.  \nFor the reasons stated above, I respectfully dissent.  \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n________________________ \n \nM. Scott Willhite, Commissioner","textLength":7128,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H401589 BECKY L. KEETER, EMPLOYEE CLAIMANT CLAY MAXEY CHEVROLET CADILLAC, EMPLOYER RESPONDENT CENTRAL ARKANSAS AUTO DEALERS/ RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED JULY 2, 2025 Upon review before the F...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back","strain","lumbar","herniated"],"fetchedAt":"2026-05-19T22:29:44.100Z"},{"id":"full_commission-H404336-2025-07-02","awccNumber":"H404336","decisionDate":"2025-07-02","decisionYear":2025,"opinionType":"full_commission","claimantName":"Nancy Valencia","employerName":"Washington Regional Medical Center","title":"VALENCIA VS. WASHINGTON REGIONAL MEDICAL CENTER AWCC# H404336 July 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Valencia_Nancy_H404336_20250702.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Valencia_Nancy_H404336_20250702.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H404336 \n \nNANCY VALENCIA, EMPLOYEE    CLAIMANT \n \nWASHINGTON REGIONAL MEDICAL CENTER,  \nEMPLOYER                                                                           RESPONDENT \n \nRISK MANAGEMENT RESOURCES,  \nCARRIER                                                                               RESPONDENT \n \nOPINION FILED July 2, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed February 10, 2025. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-\nhearing conference conducted on September 16, 2024, \nand contained in a Pre-hearing Order filed September \n17, 2024, are hereby accepted as fact.  \n \n2. The claimant has failed to prove by a preponderance of \nthe evidence that she sustained a compensable injury \nto her low back on or about June 21, 2024.  \n \n\nValencia-H404336          2  \n \n \n3. The claimant has failed to prove by a preponderance of \nthe evidence that she is entitled to medical treatment.  \n \n4. The claimant has failed to prove by a preponderance of \nthe evidence that she is entitled to temporary total \ndisability benefits.  \n \n5. The claimant has failed to prove by a preponderance of \nthe evidence that her attorney is entitled to an \nattorney’s fee in this matter.  \n \n6. The respondent’s lack of notice defense is moot.  \n \n7. The issue of the claimant’s weekly compensation rates \nis moot. \n \n We have carefully conducted a de novo review of the entire record \nherein, and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the February 10, 2025 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n  \n\nValencia-H404336          3  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2884,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H404336 NANCY VALENCIA, EMPLOYEE CLAIMANT WASHINGTON REGIONAL MEDICAL CENTER, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, CARRIER RESPONDENT OPINION FILED July 2, 2025 Upon review before the FULL COMMISSION in Little Rock, ...","outcome":"denied","outcomeKeywords":["affirmed:3","granted:3","denied:4"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:44.108Z"},{"id":"alj-H402583-2025-07-02","awccNumber":"H402583","decisionDate":"2025-07-02","decisionYear":2025,"opinionType":"alj","claimantName":"Tiffany Mason","employerName":"Cncj Transportation, Inc","title":"MASON VS. CNCJ TRANSPORTATION, INC. AWCC# H402583 July 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MASON_TIFFANY_H402583_20250702.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MASON_TIFFANY_H402583_20250702.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H402583 \n \nTIFFANY MASON, Employee CLAIMANT \n \nCNCJ TRANSPORTATION, INC., Employer RESPONDENT \n \nPROTECTIVE INS., Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 2, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented  by MATTHEW  J.  KETCHAM,  Attorney  at  Law, Fort  Smith, \nArkansas. \n \nRespondents  represented  by KAREN  H.  MCKINNEY,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for a review following a hearing on respondent’s Motion to \nDismiss. \n On  April  17,  2024,  claimant  filed  Form  AR-C  alleging  an  injury  to  her  left \nshoulder,  neck,  and  back  on  November  16,  2023.  Respondent  denied  compensability \nand a prehearing conference conducted at which time a hearing was scheduled on the \nclaimant’s  claim.  Respondent  filed  discovery  requests  on  the  claimant  and  claimant \nfailed  to  respond  to  those  discovery  requests.  As  a  result,  a  continuance  was  granted \non  claimant’s  failure  to  respond  to  discovery.  Claimant  has  now  responded  to  the \ndiscovery requests but has not requested a hearing. \n\nMason – H402583 \n \n-2- \n Since  more  than  six  months  have  elapsed  without  a  hearing  being  requested, \nrespondent  filed  a  Motion  to  Dismiss  on  November  1,  2024.  A  hearing  was  scheduled \non the respondent’s Motion to Dismiss for June 16, 2025, and notice of the hearing was \nsent  to  claimant  by  certified  mail  but  returned  as  “Undeliverable”.  Claimant  did  not \nappear at the hearing. \n At the hearing claimant was represented by her attorney, Matthew Ketcham. Mr. \nKetcham indicated that claimant wishes to proceed with a hearing on her claim.  \n Based  upon  claimant’s  desire  to  proceed  to  a  hearing  on  her  claim,  the \nrespondent’s  motion  to  dismiss  this  claim  should  be  and  hereby  is  denied. \nRespondent’s request for attorney fees is also hereby denied. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2194,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H402583 TIFFANY MASON, Employee CLAIMANT CNCJ TRANSPORTATION, INC., Employer RESPONDENT PROTECTIVE INS., Carrier RESPONDENT OPINION FILED JULY 2, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Claima...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1","denied:3"],"injuryKeywords":["shoulder","neck","back"],"fetchedAt":"2026-05-19T22:38:12.854Z"},{"id":"alj-H405720-2025-07-02","awccNumber":"H405720","decisionDate":"2025-07-02","decisionYear":2025,"opinionType":"alj","claimantName":"Charles Mcguirk","employerName":"Razorline Concrete & Land, LLC","title":"MCGUIRK VS. RAZORLINE CONCRETE & LAND, LLC AWCC# H405720 July 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MCGUIRK_CHARLES_H405720_20250702.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCGUIRK_CHARLES_H405720_20250702.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H405720 \n \nCHARLES MCGUIRK, Employee CLAIMANT \n \nRAZORLINE CONCRETE & LAND, LLC, Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 2, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant unrepresented and appearing pro se. \n \nRespondents  represented  by MICHAEL  E.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss.  \n On  September  4,  2024,  claimant  filed  Form  AR-C  alleging  an  injury  to  his \nshoulder  on  June  11,  2024.  Respondent  denied  compensability  of  the  claim  and \nclaimant  has not  requested  a  hearing  or  taken any action  to  prosecute his  claim. As a \nresult, on February 18, 2025, respondent filed a Motion to Dismiss.  \n A hearing was scheduled on respondent’s Motion to Dismiss for June 16, 2025. \nNotice  of  the hearing was  sent  to  claimant by  certified mail and was  delivered on  May \n10,  2025.  Claimant  was  not  present  at  the  hearing  and  has  not  responded  to  the \nrespondent’s motion. \n\nMcGuirk – H405720 \n \n-2- \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nmotion to dismiss this claim should be and hereby is granted. This dismissal is pursuant \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":1721,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H405720 CHARLES MCGUIRK, Employee CLAIMANT RAZORLINE CONCRETE & LAND, LLC, Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED JULY 2, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, A...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1","denied:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:38:14.917Z"},{"id":"full_commission-H303648-2025-06-30","awccNumber":"H303648","decisionDate":"2025-06-30","decisionYear":2025,"opinionType":"full_commission","claimantName":"Contessa Allison","employerName":"Southeast Arkansas Human Development Center","title":"ALLISON VS. SOUTHEAST ARKANSAS HUMAN DEVELOPMENT CENTER AWCC# H303648 June 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Allison_Contessa_H303648_20250630.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Allison_Contessa_H303648_20250630.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H303648  \n \nCONTESSA L. ALLISON, \nEMPLOYEE \n \nCLAIMANT \nSOUTHEAST ARKANSAS HUMAN  \nDEVELOPMENT CENTER, EMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 30, 2025  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n OPINION AND ORDER \n The claimant appeals an administrative law judge’s opinion filed \nJanuary 29, 2025.  The administrative law judge found that the claimant \nfailed to prove she sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant did not \nprove she sustained a compensable injury to her right or left shoulder which \nwas caused by rapid repetitive motion.  The claimant therefore did not \nprove that she sustained a compensable injury in accordance with Ark. \nCode Ann. §11-9-102(4)(A)(ii)(Repl. 2012).     \nI. HISTORY \n\nALLISON - H303648  2\n  \n \n \n Contessa Allison, now age 54, testified that she had been employed \nin 2015 as a cafeteria worker at University of Arkansas at Monticello.  Ms. \nAllison testified that she had been employed at UAM as a stir fry cook, \nwhich work “required a lot of repetition, stirring, stirring.  And eventually I \nstarted havin’ soreness in my shoulder.”  The claimant testified that she \nreceived medical treatment for her right shoulder.     \n The claimant testified that she became employed with the \nrespondents, Southeast Arkansas Human Development Center, in March \n2020.  The claimant testified, “I was a residential assistant where I worked \ndirectly with clients in the unit of 15 men....Part of your duties is you do the \nkitchen, which includes doin’ all the laundry for the 15 men.  And then you \nalso have to clean the kitchen and all of that, and as well as take care of \nyour clients and whatever they need.”   \n The claimant testified that she sustained a work-related injury to her \nright leg while employed with the respondents in September 2020.   The \nclaimant signed a Form AR-N, EMPLOYEE’S NOTICE OF INJURY, on \nOctober 1, 2020.  The ACCIDENT INFORMATION section of the Form AR-\nN indicated that an accident occurred on September 14, 2020:  “Employee \nwas chasing a client who was running off.  She pulled her right hamstring.”  \nThe record indicates that the claimant returned to work for the respondents \non or about October 20, 2020.   \n\nALLISON - H303648  3\n  \n \n \n Dr. Ethan Schock reported on April 2, 2021: \nMs. Allison is here today with her Worker’s Compensation \nnurse case manager for consideration of her right lower \nextremity pain and swelling.   \nI reviewed her records which date back to September 2020.  \nShe was apparently running and felt some discomfort and \nswelling in her right lower extremity.  She was diagnosed with \nanterior knee pain.  She has had some physical therapy, oral \nanti-inflammatory medication and was, about a month ago \nreleased to go back to 12-hour shifts.... \nIn November 2020 she had an MRI.  This study is reviewed \nand suggest generalized changes about the knee consistent \nwith osteoarthritis.... \nPLAN:  Structurally, she is intact.... \nI believe she has reached maximal medical improvement with \nrespect to her right knee work-related incident of September \n2020.  I believe her symptoms are related to preexistent \nosteoarthritis with no demonstrable new injury associated with \nthe September 2020 event.  She is released and has no \nfurther restrictions or limitations with respect to her September \n2020 work-related incident.   \n \n Dr. Schock assessed “Right knee osteoarthritis” and “Strain of \nhamstring tendon.”   \n Dr. Joe Wharton noted on April 13, 2021, “Pt presents for visit for \nWorkmen’s Comp. follow-up.  She is still hurting in her right knee.  Her work \nhas moved her back up to 12 hour shifts.  Her knee is hurting worse....We \nwill send her to Good Hope prosthetics for a knee brace to help safely \nmanage her daily activities at work.” \n An administrative law judge examined the pro se claimant: \nQ.  Specifically, when did you start having problems with your \nright and/or your left shoulders? \n\nALLISON - H303648  4\n  \n \n \nA.  That was starting around April, May goin’ on into there \naround that time....in 2021.... \nQ.  You’re claiming this was a gradual onset injury to both \nyour right and your left shoulders.   \nA.  Mm-hmm....I was always in the kitchen. \nQ.  Okay. \nA.  And that required you to do the laundry....You got thick \njeans.  You got all – you got all this heavy stuff you pullin’ out \nof these little – you only one washing machine and one dryer \nand you – \nQ.  Were these industrial size washing machines? \nA.  No. \nQ.  And dryers? \nA.  No.  Regular ones you have in your house.... \nQ.  But that’s what you were doing at the time you noticed \npain in your right and left shoulders? \nA.  Yes, ‘cause I was constantly in there – in the kitchen every \nnight, night after night after night.... \nQ.  But there was no specific incident where you were pulling \nanything out of the dryer or anything like that where you heard \na pop or fell on your shoulder or had any injury that happened \nspecifically?  This all was gradual and just came on a little bit \nat a time? \nA.  Repetition of con – of doin’ that kitchen, ‘cause you’re not \n– you’re not only doin’ the – the laundry....I’m constantly using \nmy arms for everything.  Everything I do is puttin' pressure on \nmy arms.   \nQ.  So don’t let me mischaracterize your testimony.  You tell \nme if I’ve got this right.  What you’re saying is the gradual pain \nstarted and continued to get worse over a period of time.  Is \nthat right? \nA.  Yes.   \nQ.  And what you believe caused it is washing the clothes and \nputting the clothes in the washer, taking them out and putting \nthem in the dryer, taking them out.  Did you have to fold the \nclothes as well? \nA.  I had to fold ‘em, and eventually they started having – \nwhere we had to put ‘em away.... \nQ.  What were the job duties you were performing when you \nfelt the pain in your right and left shoulders other than the \nwashing and the drying of the clothes? \n\nALLISON - H303648  5\n  \n \n \nA.  When I had to start puttin’ them up, the clothes up....why I \nreally felt the pain was when I had to start puttin’ the clothes \nup, then they had those closets that were floor to ceiling.   \n \n Dr. Wharton noted on May 28, 2021, “I have been seeing her for a \nworkman’s comp injury.  This has concluded as she has been referred to \northopedics.  She has problems with her right shoulder which she says is a \nprevious injury sustained some years ago.  She thinks is rotator cuff \ninvolved.”  Dr. Wharton’s assessment included “1.  Right shoulder pain, \nunspecified chronicity....X-ray of the right shoulder showed degenerative \nchanges at the AC and at the glenoid.\"   \n X-rays of the claimant’s right shoulder were taken on May 28, 2021 \nwith the following findings: \nThere is mild degenerative spurring at the AC joint and distal \nacromion.  The proximal humerus and glenohumeral joint are \nunremarkable.  There is no evidence for acute fracture or \nperiosteal reaction.  No lytic or sclerotic lesion.  The \nsurrounding soft tissues are unremarkable. \nIMPRESSION:  Mild degenerative spurring at the AC joint and \nacromion.  No acute osseus abnormality.   \n \n The parties stipulated that the employment relationship existed at all \npertinent times, including August 26, 2021, “when the claimant alleges she \nbecame disabled as a direct result of alleged ‘compensable’ gradual onset \ninjuries to both her right and left shoulders.”  The claimant testified that she \nreported the alleged gradual-onset injury on September 25, 2021.   \n\nALLISON - H303648  6\n  \n \n \n The record indicates that the respondents terminated the claimant’s \nemployment effective September 26, 2021.  The NOTICE OF \nDISCIPLINARY ACTION included the following cause:  “Contessa has \ndisplayed a consistent pattern of failure to comply with workplace policies, \nrules, job-related standards as well as a reasonable work-related \ninstructions (sic).  She consistently refuses instructions given by her \nSupervisor, placing unnecessary stress and additional work load on all staff \nin the unit in which she works.”   \nDr. Wharton noted on October 11, 2021, “Pt here with continued right \nshoulder pain, not improv (sic) over prior exam.”  Dr. Wharton assessed “1.  \nRight shoulder pain, unspecified chronicity.”  X-rays of the claimant’s right \nshoulder were taken on October 11, 2021 with the following findings: \n No fractures or dislocations. \n Mild degenerative changes of the acromioclavicular joint. \n No erosions.  No radiopaque foreign body. \n IMPRESSION:  1.  No acute findings.   \n \nDr. Wharton’s assessment on December 9, 2021 was “1.  Right \nshoulder pain, unspecified chronicity,” “2.  Rotator cuff arthropathy of right \nshoulder,” and “3.  Morbid obesity due to excess calories.”  Dr. Wharton \nnoted that the claimant “underwent a subacromial space injection.”   \nThe claimant treated at Mainline Health Systems, Inc. on July 21, \n2022.  An APRN reported at that time: \n\nALLISON - H303648  7\n  \n \n \n1. Left shoulder pain patient thinks it is in her rotator cuff \narea, reaching is a problem has been going on for 7-8 \nmonths gets better and then gets worse again, also look at \nher right ankle she twisted it 2 months ago and it is still \nsore.... \n52 y/o female in clinic with c/o pain in multiple joints, she is \nc/o left shoulder pain and right ankle pain.  She sprained \nright ankle several weeks ago and continues to cause her \npain....She reports that both of her shoulders hurt her, she \nbelieves it was from her job, pain started after she had \nworked for years folding clothes, she is c/o knee pain also.  \nHer left shoulder and right ankle are her main concerns \ntoday, right shoulder has been evaluated, was to have MRI \nbut she canceled appt.   \n \n The APRN’s assessment included “1.  Left shoulder pain, \nunspecified chronicity.”   \n X-rays of the claimant’s left shoulder were taken on July 21, 2022 \nwith the following findings: \nThe humeral head appears normally aligned within the \nglenoid, with detailed evaluation limited by lack of axillary or \ntransscapular wide view.  No fracture visualized.  Joint spaces \nare maintained.  Visualized portions of the lung are \nunremarkable. \nIMPRESSION \nUnremarkable left shoulder radiographs.  No acute osseous \nabnormality. \n \n The claimant signed a Form AR-C, CLAIM FOR COMPENSATION, \non June 6, 2023.  The claimant wrote in the ACCIDENT INFORMATION \nsection of the Form AR-C that the Date of Accident was August 26, 2021.  \nThe claimant described the cause of injury and part of body injured: \nThe cause of the injury to my (left) shoulder/rotator cuff is due \nto repetitive use, stemming gradually from months of \n\nALLISON - H303648  8\n  \n \n \ncontinuous laundry and cleaning duties.  These duties include \ndoing laudry (sic) for 15 client (sic), mopping, lifting and \nbathing clients, wiping down entire kitchen.  I am also \nexperiencing the same rotator cuff issues in my (right) \nshoulder at the same time as the left. \n \n Casondra Jones, Assistant Personnel Manager, Human Resources, \nsigned a WITNESS STATEMENT on June 15, 2023:  “There is no record of \nformer employee, Contessa Allison, reporting a work-related injury to her \nshoulders.”   \nA pre-hearing order was filed on September 20, 2024.  According to \nthe text of the pre-hearing order, the claimant contended, “The claimant \ncontends her claim is not barred by the applicable S/L.  Furthermore, she \ncontends she has sustained gradual onset ‘compensable’ injuries to either \nor both her right and left shoulder(s); that she is entitled to both medical and \nindemnity benefits; and, if she retains one, her attorney is entitled to a \ncontroverted fee.”   \n The parties stipulated that the respondents “controvert this claim in \nits entirety.”  The respondents contended, “The respondents contend that \non June 8, 2023, the claimant reported having allegedly sustained a gradual \nonset injury(ies) to her right and/or left shoulder(s) that she further alleged \nresulted in her inability to work as of August 26, 2021, which the \nrespondents controverted.  The respondent contends the claimant cannot \nestablish she sustained either a specific incident or a gradual onset injury to \n\nALLISON - H303648  9\n  \n \n \neither or both her right and/or left shoulder(s) on or before August 26, 2021; \nor that she sustained any gradual onset injury whatsoever arising out of \n[and] in the course of her employment caused by both rapid and repetitive \nmotion.  The respondent further contends the claimant cannot establish she \nhas timely filed her claim.  Therefore, the respondent contends the \napplicable S/L now bars the claimant’s claim for benefits.  The respondent \nfurther contends the claimant cannot meet her burden of proof pursuant to \nthe Act in establishing her alleged injury(ies) is (are) the major cause of any \ndisability or need for treatment.  Alternatively, the respondent contends that \nif the claimant’s alleged injury(ies is (are) deemed compensable claim was \ncompensable (sic), it cannot be deemed liable for the payment of any \nresponsible (sic) for disability, medical, indemnity, and/or disability benefits \nprior to the date the claimant reported her alleged injury(ies) to her \nemployer.  Finally, the respondents reserve the right to raise additional \ncontentions, or to modify those stated herein, pending the completion of any \nand all appropriate and necessary investigation and discovery.”   \n The parties agreed to litigate the following issues: \n1. Whether this claim is barred by the applicable statute of \nlimitations (S/L). \n2. If the claim is not barred by the applicable S/L, whether the \nclaimant sustained “compensable” gradual onset injuries \nwithin the meaning of the Arkansas’ Workers’ \nCompensation Act (the Act) to her right and/or left \nshoulder(s) that culminated in disability on or about August \n26, 2021.   \n\nALLISON - H303648  10\n  \n \n \n3. If the claimant’s alleged injury(ies) is (are) deemed \ncompensable, the extent to which she is entitled to medical \nand indemnity benefits. \n4. If the claimant retains an attorney in this matter, whether \nher attorney is entitled to a controverted fee on these facts. \n5. The parties specifically reserve any and all other issues for \nfuture litigation and/or determination.   \n \nA hearing was held on October 31, 2024.  An administrative law \njudge examined the claimant: \nQ.  Is there anything I haven’t asked you about your right and \nyour left shoulder injury allegations that you think I should \nhave asked you or that you would like to put into the record at \nthis time? \nA.  It’s just that – like I said, it’s – just that repetition, ‘cause, \nlike I said, I was workin’ by myself with one other person.  I \nwas in the kitchen pretty much every night doin’ that job.  And \nthen, like I said, when they added the puttin’ the clothes, that’s \nwhen it got worse, the overstretchin’ of my arm, and then I \nwas like – I was – it was to the point where I could – ‘cause I \nhad to do it over.  It wasn’t just – you – you – you do – I got 15 \nclients so I gotta put 15 clothes away – so I’m doin’ it 30 times \nopenin’ and closin’ that thing overstretchin’ myself.  And then \nwith the clothes you just constantly all this foldin’.  I mean, it’s \nnot like it was just a little – a little load of clothes.  It’s a lot.   \nQ.  Sure.  I understand. \nA.  And then pullin’ and stuff, you know, with that old washin’ \nmachine stuff gets stuck around there and you’re stretchin’ \nand pullin’.  It was just a combination of all that, you know.  \nAnd then you have to mop, then you got these big industrial \nmops pullin’ on your shoulders and stuff.  They got in – you \ngotta wipe all this wipin’ down and – and it was – it was a lot.  \nAnd then you gotta deal with your clients that you gotta \nlift....Everything I did is – is shoulder work.   \n \n The respondents’ attorney cross-examined the claimant: \n  Q.  So you had a variety of tasks, didn’t you? \n  A.  Yes.   \n  Q.  You did not do one particular task the entire shift? \n\nALLISON - H303648  11\n  \n \n \n  A.  No.... \nQ.  But I want to make it clear you did not do laundry duties \nthe entire 12-hour shift.  You had other things that you did \nduring the 12 hours. \nA.  Yes, but that – yeah, I had other things.... \nQ.  So you’re working with a washer and dryer that most of us \nhave in our home? \nA.  Mm-hmm.... \nQ.  Can you recall about how long it takes for a wash cycle \nand a dry cycle? \nA.  For wash and dry?  It could be upwards to 30 or 40 \nminutes or in between maybe.... \nQ.  You just had to load the machine and put the detergent in \nand turn it on, correct? \nA.  Correct.   \nQ.  And then after the cycle’s complete, then you take the \nclothing out and put it in the dryer and turn it on? \nA.  Mm-hmm.... \nQ.  So I want to make sure I’m understanding the work that \nyou did at the Human Development Center.  You were \nrunning the washer and dryer five or six loads during your \nshift. \nA.  Mm-hmm. \nQ.  Would that be during the 12-hour shift? \nA.  Yes, other than when I – nothin’ changed.  I had to still do \n– even though we was comin’ in at 6:00, I still had to do the \nkitchen, you know.   \n \n An administrative law judge filed an opinion on January 29, 2025.  \nThe administrative law judge found that the statute of limitations did not bar \nthe claim.  The respondents do not appeal that finding and in fact ask that \nthe Full Commission affirm the administrative law judge’s opinion.  The \nadministrative law judge found that the claimant failed to prove she \nsustained a compensable injury.  The claimant appeals to the Full \nCommission. \n\nALLISON - H303648  12\n  \n \n \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n(A)  “Compensable injury” means: \n(ii)  An injury causing internal or external physical harm to \nthe body and arising out of and in the course of \nemployment if it is not caused by a specific incident or is \nnot identifiable by time and place of occurrence, if the \ninjury is: \n(a)  Caused by rapid repetitive motion.   \n \nIn analyzing whether an injury is caused by rapid repetitive motion, \nthe standard is a two-pronged test:  (1)  the tasks must be repetitive, and \n(2)  the repetitive motion must be rapid.  Malone v. Texarkana Public \nSchools, 333 Ark. 343, 969 S.W.2d 644 (1998).   \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \nThe employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(ii)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).  For \n\nALLISON - H303648  13\n  \n \n \ninjuries falling within the definition of compensable injury under subdivision \n(4)(A)(ii), the burden of proof shall be by a preponderance of the evidence, \nand the resultant condition is compensable only if the alleged compensable \ninjury is the major cause of the disability or need for treatment.  Ark. Code \nAnn. §11-9-102(4)(E)(ii)(Repl. 2012).  “Major cause” means more than fifty \npercent (50%) of the cause, and a finding of major cause shall be \nestablished according to the preponderance of the evidence.  Ark. Code \nAnn. §11-9-102(14)(Repl. 2012).   \nAn administrative law judge found in the present matter, “5.  The \nclaimant has failed to meet her burden of proof in demonstrating her job \nduties at HDC constitute either rapid-repetitive motion, and/or that they \nwere the ‘major cause’ of her right and left shoulder pain/problems.”  The \nadministrative law judge erred as a matter of law.  The claimant had the \nburden of proving that her “alleged compensable injury,” not her “job \nduties,” was the major cause of her disability or need for treatment.  See \nArk. Code Ann. §11-9-102(4)(E)(ii)(Repl. 2012); Medlin v. Wal-Mart Stores, \nInc., 64 Ark. App. 17, 977 S.W.2d 239 (1998).  See also Crudup v. Regal \nWare, 69 Ark. App. 206, 11 S.W.3d 567 (2000).  Nevertheless, the Full \nCommission has the duty to decide the case de novo and we are not bound \nby the characterization of evidence adopted by an administrative law judge.  \nTyson Foods, Inc. v. Watkins, 37 Ark. App. 230, 792 S.W.2d 348 (1990).       \n\nALLISON - H303648  14\n  \n \n \nThe Full Commission finds in the present matter that the claimant did \nnot prove she sustained a compensable injury to her left shoulder or right \nshoulder as a result of rapid repetitive motion.  As we have discussed, the \nclaimant first complained of right shoulder pain in 2015 while working as a \ncook for another employer.  The claimant became employed with the \nrespondents, Southeast Arkansas Human Development Center, in about \nMarch 2020.  The claimant testified that she provided residential services to \n15 clients, which work included laundry and kitchen duties.  The \nrespondents provided benefits related to a right lower extremity injury \nsustained by the claimant in September 2020.  A physician stated in April \n2021, “I believe she has reached maximal medical improvement with \nrespect to her right knee work-related incident of September 2020.”   \nThe claimant testified that she began suffering from right and left \nshoulder problems in about April 2021.  The claimant testified that these \nsymptoms were related to her work for the respondents in the kitchen and \nlaundry areas.  The claimant testified that she was washing “thick” jeans.  \nThe claimant described her duties of washing clothes, placing them in the \ndryer and removing them, and then folding the clothes.  Dr. Wharton \nreported in May 2021 that the claimant was suffering from right shoulder \npain “which she says is a previous injury sustained some years ago \n[emphasis supplied].”  Dr. Wharton was obviously referring to the injury \n\nALLISON - H303648  15\n  \n \n \nsustained by the claimant in 2015 while she was employed in the UAM \ncafeteria.   \nThe respondents terminated the claimant’s employment effective \nSeptember 26, 2021.  The record does not indicate that the termination of \nthe claimant’s employment was related to the alleged compensable injuries; \ninstead, the respondents asserted that the claimant failed to comply with \nworkplace policies, rules, and job-related standards.   \nThe claimant treated at Mainline Health Systems on July 21, 2022.  \nThe claimant reported that she suffered from bilateral shoulder pain as a \nresult of “folding clothes.”  The claimant signed a Form AR-C, CLAIM FOR \nCOMPENSATION, on June 6, 2023.  The claimant alleged in the Form AR-\nC that she suffered from bilateral shoulder problems as a result of “months \nof laundry and cleaning duties.”  The claimant testified at hearing that she \nsuffered from shoulder pain as a result of working in the respondents’ \nlaundry and kitchen areas.   \nThe Full Commission finds that the claimant did not prove she \nsustained a compensable injury in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(ii)(Repl. 2012).  The claimant did not prove by a preponderance \nof the evidence that she sustained an injury causing internal or external \nphysical harm to her left or right shoulder which arose out of and in the \ncourse of employment or was caused by rapid repetitive motion.  Even if the \n\nALLISON - H303648  16\n  \n \n \nclaimant’s work for the respondents in the area of kitchen and laundry was \nrepetitive, the claimant did not prove that these allegedly repetitive tasks \nwere performed rapidly.  See Malone, supra.  The claimant also did not \nestablish a compensable injury supported by objective findings.  The x-rays \nof the claimant’s right shoulder taken May 28, 2021 and October 11, 2021 \nrevealed mild degenerative changes and cannot be interpreted as \ndemonstrating a compensable injury caused by rapid repetitive motion.  The \nx-ray of the claimant’s left shoulder taken July 21, 2022 was reported to be \n“Unremarkable” and likewise cannot be interpreted as establishing a \ncompensable injury by medical evidence supported by objective findings.  \nFinally, the claimant did not prove by a preponderance of the evidence that \nthe alleged compensable injury was the major cause of the alleged \ndisability or need for treatment.  See Ark. Code Ann. §11-9-\n102(4)(E)(ii)(Repl. 2012); Medlin, supra.   \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove she sustained a compensable injury in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(ii)(Repl. 2012) et seq.  \nThis claim is respectfully denied and dismissed.   \n \n \n \n\nALLISON - H303648  17\n  \n \n \nIT IS SO ORDERED.         \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":25525,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303648 CONTESSA L. ALLISON, EMPLOYEE CLAIMANT SOUTHEAST ARKANSAS HUMAN DEVELOPMENT CENTER, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 30, 2025","outcome":"denied","outcomeKeywords":["dismissed:1","denied:6"],"injuryKeywords":["shoulder","repetitive","back","knee","strain","rotator cuff","fracture","ankle"],"fetchedAt":"2026-05-19T22:29:44.263Z"},{"id":"full_commission-H304408-2025-06-30","awccNumber":"H304408","decisionDate":"2025-06-30","decisionYear":2025,"opinionType":"full_commission","claimantName":"Charles Anderson","employerName":"White Hall School District","title":"ANDERSON VS. WHITE HALL SCHOOL DISTRICT AWCC# H304408 June 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Anderson_Charles_H304408_20250630.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Anderson_Charles_H304408_20250630.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H304408 \n \nCHARLES ANDERSON, \nEMPLOYEE \n \nCLAIMANT \nWHITE HALL SCHOOL DISTRICT,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSOCIATION \nWCT, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 30, 2025  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE DANIEL E. WREN, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nFebruary 7, 2025.  The administrative law judge found that the claimant \nproved he was permanently totally disabled.  After reviewing the entire \nrecord de novo, the Full Commission finds that the claimant did not prove \nhe was permanently totally disabled.  We find that the claimant proved he \nsustained wage-loss disability in the amount of 25%.     \nI.  HISTORY \n Charles Anderson, now age 58, testified that he was a high school \ngraduate.  Mr. Anderson testified that his primary field of employment had \n\nANDERSON - H304408  2\n  \n \n \nbeen in the area of “maintenance.”  The claimant testified on cross-\nexamination that he had performed electrical work, plumbing, HVAC, \npainting, and roofing.  The claimant testified that he had worked for \nhospitals, nursing homes, and hotels.  The claimant had worked as a \nMaintenance Supervisor for at least two employers, including Saracen \nCasino.   \n The claimant testified that he became employed with the \nrespondents, White Hall School District, in October 2022.  The parties \nstipulated that the employment relationship existed at all pertinent times, \nincluding April 3, 2023.  The claimant testified on direct examination: \nQ.  And at one point, were you working for the White Hall \nSchool District? \n A.  Yes. \n Q.  How long did you work there? \n A.  Six months. \n Q.  And what was your job title? \n A.  Maintenance man.   \nQ.  We don’t have to cover everything, but can you give me a \nthumbnail sketch of what your duties were as a maintenance \nperson for the White Hall School District? \nA.  Duties, electrical, plumbing, painting, drywall, HVAC, \nlifting, climbing, and just, basically, whatever came up. \nQ.  When you say, “Whatever came up,” basically, is it fair to \nsay your job was to take care of the physical building and \nstructures that belong to the White Hall School District? \nA.  Yes.... \nQ.  And we don’t have to get into all the details, but tell me \nhow you got hurt? \nA.  Okay....We had a problem down at the Redfield \nElementary School.  So [the supervisor] was discussing we \nneed to take care of that, had some bad ceiling tiles that were \nfalling.  We didn’t want it to fall on the kids, so that was our \n\nANDERSON - H304408  3\n  \n \n \nfirst duties for that day to try and make it down there, before \nthe school even opened.... \nQ.  And did you get there in a van? \nA.  Yes, I did.... \nQ.  Where were [the ceiling tiles]? \nA.  In the back of the van. \nQ.  At some point did you try to get them out? \nA.  No.  I got co-workers to help me to get it out, because they \nknew what had happened to me putting them in. \nQ.  Okay.  So you got hurt putting those tiles into the back of \nthe van, is that correct? \nA.  Yes, yes....I put them on the dolly and I rolled them to the \nvan and by me not having no help at the time, I just laid the \nfront part over in the van and as I was picking up to pick them \nup to scoot them in the van that’s when the accident occurred. \n \n The parties stipulated that the claimant “suffered an accepted \ncompensable injury” on April 3, 2023.  The claimant testified that he had not \nworked for any employer since the date of his compensable injury.  \nAccording to the record, the claimant treated with Trent Tappan, PA-C \nbeginning July 12, 2023: \nMr. Anderson is a 56-year-old man who was involved in a \nwork-related injury in April.  Early April he was lifting some \nstuff helping to clean up from a room and picked up and \ntwisted something and felt severe pain in his back with \nradiation down the left leg.  Basically since that time he had a \nsevere left radiculopathy type of sciatic pain that not really \nimproved.  He has been on some naproxen and \ncyclobenzaprine.  The only thing that seemed to help him \n[was] some hydrocodone from his sister that he would take \nevery now and then.  He is miserable.  This poor guy has not \nbeen able to get any relief.  I am not sure he has had any \nspecific treatment but he has not been able to return to work \nfor 3 months.... \nI reviewed the x-rays of the lumbar spine which were mild \ndegenerative changes.   \n\nANDERSON - H304408  4\n  \n \n \nI had a long visit with Mr. Anderson about his symptoms and \nimages.  This poor man is miserable.  He has had a lot of \nsevere pain in his back and leg for 3 months.  He has not \nbeen able to work because of the degree of pain.  He has \ndifficulty ambulating in the exam room.  I told him I would give \nhim some more pain medication to have on hand.  I \nprescribed keep him off work for now until he returns.  I would \nrecommend an MRI of his lumbar spine for further \nevaluation....He says that he has not been able to work in 3-\nmonth so he is has (sic) not been able to pay his bills or car \npayment in 3 months.   \n \n An MRI of the claimant’s lumbar spine was taken on July 14, 2023 \nwith the following impression: \n1. At L1-L2, there is a broad disc protrusion with bilateral \nsubarticular and left greater than right foraminal \ncomponents.  Effacement of the exiting left L1 nerve root \nfrom foraminal disc protrusion.  Likely effacement of the \ntraversing left L2 nerve root from subarticular disc \nprotrusion.  Recommend correlation for radiculopathy. \n2. At L2-L3, there is moderate left and mild right neural \nforaminal stenosis. \n3. Diffusely heterogenous marrow signal, nonspecific.  This \ncan be seen with anemia or marrow \nconversion/myeloproliferative disorders.  Clinical \ncorrelation is recommended. \n \nThe claimant followed up with Trent Tappan on July 14, 2023: \nMr. Anderson returns after getting the MRI of his lumbar \nspine.  He continues to have severe pain in his low back and \nleft hip and groin and thigh.  This began after a work-related \ninjury a few months back.  He has very severe constant pain.  \nHe has not been able to work since the injury.  Unfortunately \nhe has not had any specific treatment.... \nI reviewed the x-rays of the lumbar spine which reveal \ndegenerative changes.  I reviewed the MRI which reveals disc \nherniation at L1 to the left in the foramen with L1 nerve root \nimpingement.   \n\nANDERSON - H304408  5\n  \n \n \nI suspect Mr. Anderson is symptomatic from a disc herniation \nat L1-2 on the left....I would recommend a transforaminal \nepidural steroid injection at L1-2 on the left.  I am hopeful \nmaybe this will calm down his inflammatory symptoms.  I am \nalso going to release him to light sedentary office work.  They \nmay not be able to accommodate this.  But I would like for him \nto be able to get out of the house and at least return to some \nkind of employment for the time being.  We will get this set up \nand I will see him back when the injection is complete.   \n \n Trent Tappan signed a “Return to Work” form on July 14, 2023:  \n“Activity is restricted as follows:  Light sedentary office work.”   \nTrent Tappan performed an epidural steroid injection on or about \nAugust 3, 2023.  Mr. Tappan reported on August 18, 2023, “Mr. Anderson \nreturns after getting a transforaminal epidural steroid injection at L1-2 on \nthe left.  This helped him quite a bit but only for about a week.  He has \nrecurring pain in his back radiation to the left groin and leg....He is doubtful \nthat he is going to be able to return back to his regular occupation despite \nthe treatment offered him and I think that is actually somewhat \nunderstandable.  He wants to consider disability and I told him that is up to \nhim and his option....He wants to try another injection which I think is fine.  \nAs for now I am going to keep him on his current work restrictions we will \nset up a second injection at L1-2 on the left.  I told him I would plan to see \nhim back after the injection and placement [of] maximum medical \nimprovement and release him at that time.”   \nThe claimant followed up with Trent Tappan on November 2, 2023: \n\nANDERSON - H304408  6\n  \n \n \nMr. Anderson returns after getting another transforaminal \nepidural steroid injection at L1-2 on the left.  This will did (sic) \nhelp him quite a bit.  He is doing better today.  He still has \nsome pain but he is improved quite a bit I believe from where \nhe began although he [is] still symptomatic.  We had a long \nvisit about further options.  I think he [has] been rendered \nsymptomatic from this disc herniation at L1-2 on the left.  This \nwas likely the result of his work-related injury.  We discussed \nsome further treatment options.  I told Mr. Anderson that I \nthink if he had surgery would likely need a facetectomy and a \nfusion.  He really does not want to have surgery and I would \nagree with that.  I do not think it would be the overall best care \nhomerun for him.  It would be an option [if he] wants to pursue \nthat but I agree with him right now [I would leave] this alone.  \nHe is improving and I think this will continue to improve.  I do \nnot think there is any need to repeat any more injections at \nthis point.  I plan to just release him in 1 to place him at \nmaximal medical improvement and release him to work \nwithout restrictions.  But I will calculate an impairment rating \nbased on the disc herniation and a letter to follow.  I will just \nsee him back as needed.   \n \n Trent Tappan signed a “Return to Work/School” form on November \n2, 2023:  “Work limitations:  Released to work no restrictions.”  Mr. Tappan \nstated on November 3, 2023, “based on the American Medical Association \nguidelines and permanent impairment rating fourth edition page 3/113 table \n75 I would award Mr. Anderson a 7% impairment of the whole person \nbased on his disc herniation at L1-2 on the left.”  The parties stipulated that \nthe claimant “has been assigned a permanent disability rating of 7% to the \nbody as a whole.” \n The claimant testified on direct examination: \nQ.  During this period of time that you were off work, did they \nfind you had some cancer in your stomach? \n\nANDERSON - H304408  7\n  \n \n \nA.  Yes.   \nQ.  And were you treated for that? \nA.  Yes.   \nQ.  And was your cancer doctor giving you pain medication for \nthat? \nA.  Yes.       \n \n The claimant participated in a Functional Capacity Evaluation on \nApril 19, 2024: \nThe results of this evaluation indicate that a reliable effort was \nput forth as he passed 46 of 46 consistency measures.... \nIt is noted that Mr. Anderson’s functional abilities were limited \ndue to his back injury as well as his overall fatigue due to his \ncurrent symptoms related to his Cancer and his Cancer \ntreatment.  Throughout the evaluation, activities were stopped \nor limited due to both conditions and it is undetermined which \ncondition had more affect (sic) on his functional \nabilities/limitations.... \nMr. Anderson completed functional testing on this date with \nreliable results.   \nOverall, Mr. Anderson demonstrated the ability to perform \nwork in the SEDENTARY classification of work as defined by \nthe US Dept. of Labor’s guidelines over the course of a \nnormal 8 hour workday with limitations as noted above.... \nMr. Anderson reports that he was injured on 403-23 while \npicking up a bundle of ceiling tiles and he felt an immediate \npain in his low back.  He reports that was in the morning and \nby lunch he had to go to an Urgent Care Medical Clinic due to \nhis pain, and he reports they gave him a steroid injection and \npain medication.  He reports no one would give him an MRI \nbecause the doctors kept saying he didn’t have insurance.  He \nreports he then got an attorney involved and he went from \nApril to June and he eventually had an MRI in June of 2023.  \nHe reports he was then sent to OrthoArkansas in Little Rock, \nAR and they did an MRI and he reports that is when they \ndiscovered his back was “Messed up.”  He reports he was told \nhe needed surgery to do a cage or fusion, however he reports \nhe did not want to have surgery.  He reports that his treatment \nthen consisted of 3-4 injections in his low back.  He reports he \nhas been off work since his injury. \n\nANDERSON - H304408  8\n  \n \n \nMr. Anderson reports around 2 months ago, he went to the \nhospital with stomach and chest pain and they discovered he \nhad lymphoma.  He reports the Doctors started him on \ntreatment pretty quickly and he reports due to his cancer \ntreatment he now has a lot of fatigue, and he reports he feels \ngood some days and some days he doesn’t.  He reports his \nPCP wants him walking with a cane due to his decreased \nbalance and his fatigue related to his cancer treatment.   \nMr. Anderson describes his current activity level as, “I can’t do \nany housework or yard work or anything like that.”  When \nasked if his back or the cancer treatment was his primary \nlimiting factor with everyday activities, he stated, “They are \nkind of blending in together and both give me problems.”  He \nreports he has a lot of pain in his back that is limiting him, but \nhe also has a lot of fatigue from his cancer treatment.  He \nreports that he has the most difficulty performing, “Standing \ntoo long, or anything to do with bending or lifting.”  He reports \nhe lays down most of the day at home.   \nMr. Anderson describes his pain as being in his back and \ndown both legs.  He also reports pain in his belly which he \nreports is due to his cancer.... \n \n Cecilia A. Brunson, a Vocational Rehabilitation Consultant, provided \na Vocational Rehabilitation Initial Evaluation on August 25, 2024: \nAt the request of Arkansas School Boards Association, I met \nMr. Charles Anderson to complete a vocational rehabilitation \nassessment, preliminary to exploring his return-to-work \noptions based on his work-related injury.  Prior to the \nbeginning of the meeting with Mr. Anderson, I explained my \nrole as a vocational rehabilitation counselor.   \nMr. Anderson sustained a work-related injury on 04/03/23.  As \nof this date, he has completed his medical treatments and has \nbeen released to return to the workforce by his physician.  Mr. \nAnderson will not be able to return to his job of injury, but in \nmy opinion should be able to return to the workforce in the \nfuture to a different job that is within his work restrictions.... \nMr. Anderson stated he is not interested in returning to work \nat this time.  He reported he can barely move around the \nhouse most days due to pain.  Mr. Anderson has computer \nskills and is confident in his ability to navigate computers.... \n\nANDERSON - H304408  9\n  \n \n \nBased on Mr. Anderson’s transferable skills, functional ability, \nrecords reviewed of his injury and past work history, he is \ncapable of working within the sedentary category of physical \nwork demands.  Recommendations for vocational \nrehabilitation services will include drafting a resume, \ncompleting a follow-up meeting to provide interview skills \ntraining and preparation, assist him with any online job \napplication for which he needs assistance, and begin \ncompleting regular job market research in his local area.  The \njob market research will identify current job openings for which \nhe can apply with the eventual goal of returning to the \nworkforce to a new occupation.   \n \n Cecilia Brunson also provided a Job Market Research Report on \nAugust 25, 2024: \nAt the request of the Arkansas School Boards Association, I \nhave completed job market research to identify current job \nopenings in Mr. Charles Anderson’s local labor market area.  \nRecords reflect he has a Pine Bluff, Arkansas, address. \nRecords reviewed to date include the following:  Functional \nCapacity Evaluation (FCE), workers’ compensation first report \nof injury records, and OrthoArkansas records.  \nIn summary records reflect Mr. Anderson has a 12\nth\n grade \neducation, [a] reliable FCE that placed him capable of working \nin the Sedentary category of physical work demands, and a \nwork history in skilled occupations as a Maintenance Repairer \nand Maintenance Supervisor.   \n \n Ms. Brunson identified job openings such as Local Office \nAdministrative Assistant, Extra Help Administrative Specialist II, Service \nRepresentative, and Emergency Dispatcher.  The record indicates that the \nclaimant did not follow up on any of the job leads provided by the vocational \ncounselor.  The claimant testified that he completed his cancer treatment on \nor about August 27, 2024.   \n\nANDERSON - H304408  10\n  \n \n \n A pre-hearing order was filed on August 27, 2024.  The claimant \ncontended, “The Claimant is not able to return to his current employment \nand therefore is entitled to wage loss.”   \n The respondents contended, “Respondents contend that all \nappropriate benefits have been and are continuing to be paid with regard to \nthis matter.”   \n The parties agreed to litigate the following issues: \n1. Whether the claimant is entitled to wage loss disability \nbenefits.   \n2. Whether the claimant is entitled to an attorney’s fee.  Other \nissues are reserved.   \n \nCecilia A. Brunson provided another Job Market Research Report on \nSeptember 18, 2024.  Ms. Brunson identified job openings such as Local \nOffice Administrative Assistant, Administrative Specialist I, Administrative \nAssistant, and Patient Care Coordinator.    \nA hearing was held on November 14, 2024.  At that time, the \nclaimant contended that he was entitled to permanent total disability \nbenefits or alternatively wage-loss disability.  The claimant testified on direct \nexamination: \nQ.  Your cancer treatment, did that cause some fatigue, \nsleepiness? \n A.  Yes.   \nQ.  All right.  But has that stopped now that your treatment \nhas stopped, that fatigue from the medicine? \nA.  Somewhat.   \nQ.  Okay.  You still have some? \n\nANDERSON - H304408  11\n  \n \n \nA.  Yes. \nQ.  Describe the loss of fatigue that you have at this point? \nA.  Still having a little numbness in my left thigh.  I have to \nwalk with a rollator if I can get out, because my legs will go \nnumb on me.   \nQ.  Now, your legs going numb, was that a problem – pain \nand numbness in your legs, was that a problem that you had \nbefore the cancer? \nA.  Yes.... \nQ.  But was [the rollator] ordered by Dr. Tappan or by the \ncancer doctor? \nA.  By the cancer doctor.   \n \n The claimant testified on cross-examination that he was receiving \nSocial Security Disability benefits.   \n The respondents’ attorney examined Cecilia Brunson: \nQ.  In your expert opinion, do you think Mr. Anderson should \nbe able to return to the workforce to a different job within his \nrestrictions? \nA.  Yes, to a different job.... \nQ.  You reviewed his functional capacity evaluation, is that \nright? \nA.  Yes. \nQ.  And you’re aware that that assigned sedentary \nrestrictions? \nA.  Correct.   \nQ.  What would some of those restrictions be? \nA.  Sitting six hours out of a (sic) eight-hour work day.... \nQ.  What were your recommendations after reviewing the \nrecords and talking with Mr. Anderson? \nA.  Sedentary jobs that involved a high school diploma, little to \nno work experience with on-the-job training and working with \nthe public.  Mr. Anderson was just very open and just a very \nfriendly person, easy to talk to and so I just think that was a \nvery important skill that he possesses that would be very great \nwith dealing with the public or just talking to people period.   \nQ.  Your report on the bottom of page nine and going on to \npage 10 indicates that you had some rehabilitation services \n\nANDERSON - H304408  12\n  \n \n \nthat you had thought of for his case.  Can you tell me about \nthose? \nA.  Yes, I am offering to help him with a resume, interviewing \nskills before an interview, even calling the employers to find \nout if they would be hiring, how many they would be hiring \nand, you know, advocate for him, basically.  Let them know \nthat I have someone that would be great for a position and I \nwould be willing to help fill out the applications for him and \neven assist with going to an interview, if that was necessary \nas well. \nQ.  Did he ever contact you to pursue those options? \nA.  No, ma’am.   \n \n An administrative law judge filed an opinion on February 7, 2025.  \nThe administrative law judge found that the claimant proved he was entitled \nto permanent total disability benefits.  The respondents appeal to the Full \nCommission. \nII.  ADJUDICATION \n The wage-loss factor is the extent to which a compensable injury has \naffected the claimant’s ability to earn a livelihood.  Grimes v. North Am. \nFoundry, 316 Ark. 395, 872 S.W.2d 59 (Ark. 1994).  Ark. Code Ann. §11-9-\n522(b)(Repl. 2012) provides, in pertinent part: \n(1) In considering claims for permanent partial disability \nbenefits in excess of the employee’s percentage of \npermanent physical impairment, the Workers’ \nCompensation Commission may take into account, in \naddition to the percentage of permanent physical \nimpairment, such factors as the employee’s age, \neducation, work experience, and other matters reasonably \nexpected to affect his or her future earning capacity.   \n \n\nANDERSON - H304408  13\n  \n \n \n   Ark. Code Ann. §11-9-519(e)(Repl. 2012) provides, in pertinent \npart: \n(1) “Permanent total disability” means inability, because of \ncompensable injury or occupational disease, to earn any \nmeaningful wages in the same or other employment. \n(2) The burden of proof shall be on the employee to prove \ninability to earn any meaningful wage in the same or other \nemployment. \n \nAn administrative law judge found in the present matter, “3.  The \nclaimant has proven by a preponderance of the evidence that he is entitled \nto permanent and total disability benefits.”  The Full Commission does not \naffirm this finding. \nThe claimant is only age 58 and is a high school graduate.  The \nrecord indicates that the claimant’s areas of employment have primarily \nbeen involved in “maintenance,” that is, electrical work, plumbing, HVAC, \nand related areas.  The claimant testified that he had worked in this \ncapacity for hospitals, nursing homes, hotels, and at least one casino, \nwhere the claimant was a supervisory employee.   \nThe parties stipulated that the claimant was employed with the \nrespondents, White Hall School District, on April 3, 2023.  The claimant \nworked for the respondents in the area of maintenance, described by the \nclaimant as “electrical, plumbing, painting, drywall, HVAC, lifting, climbing, \nand just, basically, whatever came up.”  The parties stipulated that the \n\nANDERSON - H304408  14\n  \n \n \nclaimant sustained a compensable injury on April 3, 2023.  The record \nshows that the claimant injured his back while lifting a load of tiles.   \nThe claimant has not returned to work for any employer since the \nstipulated April 3, 2023 compensable injury.  The claimant treated \nconservatively with Trent Tappan, PA-C beginning July 12, 2023.  Mr. \nTappan released the claimant to “light sedentary office work” on July 14, \n2023.  The claimant did not attempt to return to sedentary office work.  \nTrent Tappan opined in August 2023 that the claimant was physically \nunable to return to his former position as a Maintenance employee for the \nrespondents.  However, Mr. Tappan returned the claimant to work with “no \nrestrictions” on November 2, 2023.  Mr. Tappan assigned the claimant a 7% \nwhole-person impairment rating on November 3, 2023, which rating the \nrespondents have apparently accepted as compensable.  The claimant \ntestified that he was subsequently diagnosed with lymphoma, for which he \nhad completed treatment.  The claimant testified that he suffered from \nchronic fatigue related to his treatment for lymphoma. \nThe claimant gave a reliable effort during a Functional Capacity \nEvaluation carried out on April 19, 2024.  The evaluators released the \nclaimant to “Sedentary” work.  Cecilia A. Brunson provided vocational \nassistance to the claimant beginning August 25, 2024.  Cecilia Brunson \nopined, “Mr. Anderson will not be able to return to his job of injury, but in my \n\nANDERSON - H304408  15\n  \n \n \nopinion should be able to return to the workforce in the future to a different \njob that is within his work restrictions.”  However, Ms. Brunson noted that \nthe claimant was “not interested in returning to work at this time.”   \n The evidence does not demonstrate that the claimant is unable “to \nearn any meaningful wage in the same or other employment” as is required \nto prove permanent total disability in accordance with Ark. Code Ann. §11-\n9-519(e)(Repl. 2012).  The treating physician’s assistant and the Functional \nCapacity evaluators both opined that the claimant could perform at least \nsedentary work.  Cecilia Brunson attempted to provide appropriate \nvocational rehabilitation, but the record shows that the claimant was not \ninteresting in returning to even light-duty work.  The claimant’s lack of \ninterest in returning to appropriate gainful employment impedes the \nCommission’s full assessment of the claimant’s wage-loss disability.  City of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).  We note \nthat the claimant is now drawing Social Security Disability benefits and is \nplainly not interested in returning to work within his permanent restrictions.  \nThe claimant testified at hearing that he had not applied for any jobs since \nthe compensable injury.     \n However, the evidence also demonstrates that, as a result of the \nApril 3, 2023 compensable injury, the claimant is physically unable to return \nto his former position as a Maintenance employee for the respondents.  In \n\nANDERSON - H304408  16\n  \n \n \nconsidering the claimant’s relatively young age of 58, his high school \neducation, the claimant’s work history, the 7% whole-body impairment \nrating, and the claimant’s demonstrated lack of motivation in returning to \nappropriate gainful employment, the Full Commission finds that the \nclaimant proved he sustained wage-loss disability in the amount of 25%.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove he was permanently totally disabled in \naccordance with Ark. Code Ann. §11-9-519(e)(Repl. 2012).  The Full \nCommission finds that the claimant proved he sustained wage-loss \ndisability in the amount of 25%.  The claimant proved that the April 3, 2023 \ncompensable injury was the major cause of his 7% anatomical impairment \nand 25% wage-loss disability in accordance with Ark. Code Ann. §11-9-\n102(F)(ii)(a)(Repl. 2012).  The claimant’s attorney is entitled to fees for legal \nservices in accordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For \nprevailing in part on appeal, the claimant’s attorney is entitled to an \nadditional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b)(Repl. 2012). \n \n \n \n \n\nANDERSON - H304408  17\n  \n \n \n IT IS SO ORDERED.        \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \n I must respectfully dissent from the majority’s opinion finding the \nclaimant proved he sustained wage-loss disability in the amount of 25%.   \n The claimant suffered an admittedly compensable injury to his lower \nback on April 3, 2023, and was ultimately released with a seven percent \n(7%) permanent impairment rating in November 2023.  \nAfter undergoing a Functional Capacity Evaluation (FCE), it was \ndetermined the claimant was unable to return to his job with the respondent \nemployer.  \nThe carrier provided the claimant with vocational rehabilitation which \nidentified multiple jobs within the claimant’s restrictions.  To date the \nclaimant has applied for none. \n“’Permanent total disability’ means inability, because of compensable \ninjury or occupational disease, to earn any meaningful wages in the same \nor other employment.”  Ark. Code Ann. § 11-9-519(e)(1).  \n\nANDERSON - H304408  18\n  \n \n \nThe employee bears the burden of proving the inability to earn any \nmeaningful wage in the same or other employment.  Ark. Code Ann. § 11-9-\n519(e)(2).  “In the absence of clear and convincing proof to the contrary, the \nloss of both hands, both arms, both legs, both eyes, or of any two (2) \nthereof shall constitute permanent total disability;” however, “[i]n all other \ncases, permanent total disability shall be determined in accordance with the \nfacts.” Ark. Code Ann. § 11-9-519(b)-(c). \n“Permanent benefits shall be awarded only upon a determination that \nthe compensable injury was the major cause of the disability or \nimpairment.” Ark. Code Ann. § 11-9-102(4)(F)(ii)(a).  \nArkansas Code Annotated § 11-9-102(4)(D) provides that a \ncompensable injury must be established by medical evidence supported by \n\"objective findings.\"  An objective finding is defined as a finding which \ncannot come under the voluntary control of the claimant.  Ark. Code Ann. § \n11-9-102(16)(A)(i). \nThe same factors that are considered when analyzing wage loss \ndisability claims are usually considered when analyzing permanent and total \ndisability claims.  Maulding v. Price's Utility Contractors, 2009 Ark. App. \n776, 358 S.W.3d 915 (2009).  Those factors include the claimant’s age, \neducation, work experience, motivation, post-injury income, credibility, \ndemeanor, and any other matters reasonably expected to affect her future \n\nANDERSON - H304408  19\n  \n \n \nearning capacity.  Ark. Code Ann. § 11-9-522(b)(1); St. Vincent Health \nServ. v. Bishop, 2010 Ark. App. 141 (2010).  \nPermanent total disability, as defined by our legislature, makes no \nprovision for whether employment is available in any particular geographical \narea but instead, provides that a claimant must prove the inability to earn \nany meaningful wages because of the compensable injury.  See Ark. Code \nAnn. § 11-9-519(e)(1); Birtcher v. Mena Water Utils., 2017 Ark. App. 210, \n518 S.W.3d 707 (2017). \nIn the present case, the claimant has a high school education and \ndrywall certification.  He has skills in “a little electrical, a little plumbing, a \nlittle HVAC, painting, roofing -- basically, that’s normally it, you know, \nanything that concerned a building that have to be done.”  \nSince graduating high school in 1984, the claimant has worked for \nvarious hospitals, nursing homes, and hotels among other institutions. \nFurther, the claimant has experience in sedentary supervisory roles, \nincluding work with a company called SAJ, where he supervised \napproximately twenty people.  This was not a physical job.  He would later \nserve as a maintenance supervisor for Saracen Casino for two and a half \nyears, supervising twelve people before transferring to a supervisory job \nwith the Casino’s food and beverage department overseeing bartenders, \nwaitresses, and bar backs. \n\nANDERSON - H304408  20\n  \n \n \nThe claimant had only been working for the respondent employer for \nsix months prior to his April 3, 2023 injury.  On November 2, 2023, the \nclaimant was released to return to work at full duty with no  \nrestrictions and was assigned a seven percent (7%) whole body impairment \nrating.  A later Functional Capacity Evaluation assigned the claimant \nsedentary duties.  \nDuring the treatment for his compensable injury, the claimant \nreceived a stomach cancer diagnosis that has led to his need for pain \nmanagement, a hydrocodone prescription, and a prescription for a cane. \nThe claimant has not applied for any jobs since his 2023 injury and is \ncurrently receiving $1,433.00 in monthly social security disability benefits.  \nThe claimant has been interviewed and evaluated by vocational \nexpert Cecilia Brunson.  At the hearing, Ms. Brunson testified that it is her \nprofessional opinion that the claimant is able to return to the workforce.  Ms. \nBrunson’s report reflects that the claimant’s work history allowed him to \nacquire the following skills: \n• Supervisory and leadership skills \n• Management and personnel resources \n• Active listening \n• Monitoring \n• Coordination \n• Critical thinking \n• Speaking \n• Reading comprehension \n• Complex problem solving \n• Operations monitoring \n\nANDERSON - H304408  21\n  \n \n \n• Social perceptiveness \n• Instructing \n• Negotiation \n• Persuasion \n• Writing \n• Judgement [sic] and decision making \n• Systems evaluation \n• Troubleshooting \n• Time management \n \n Ms. Bruson testified she had offered “to help with a resume, \ninterviewing skills before an interview, even calling the employers to find out \nif they would be hiring, how many they would be hiring and, you know, \nadvocate for him basically.  Let them know that I have someone that would \nbe great for a position, and I would be willing to help fill out the applications \nfor him and even assist with going on an interview if that was necessary as \nwell.”  The claimant has never contacted Ms. Brunson regarding those \noffers.  \nMs. Bruson has identified eighteen (18) current job openings that fall \nwithin the claimant’s FCE restrictions, education, and work history.  She \nbelieves the claimant can do any of these jobs.  \nThe claimant clearly has no intention to return to work.  Eighteen (18) \njobs have been found for him with his restrictions, and Ms. Brunson has \noffered extensive assistance in applying for and interviewing for these jobs. \nThe claimant has applied for none.  These issues are clearly compounded \nby the claimant’s cancer treatment and his other non-work related medical \n\nANDERSON - H304408  22\n  \n \n \nissues rather than any permanent impairment resulting from his \ncompensable injury for which the respondents are not responsible.  The \nclaimant should not be rewarded for his absolute refusal to even try to \nreturn to the workforce.  As a result, he is not entitled to any wage loss over \nand above his anatomical impairment rating.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":34358,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H304408 CHARLES ANDERSON, EMPLOYEE CLAIMANT WHITE HALL SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WCT, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 30, 2025","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["back","lumbar","hip"],"fetchedAt":"2026-05-19T22:29:44.284Z"},{"id":"alj-H203685-2025-06-26","awccNumber":"H203685","decisionDate":"2025-06-26","decisionYear":2025,"opinionType":"alj","claimantName":"Betty Butler","employerName":"Jacksonville High School","title":"BUTLER VS. JACKSONVILLE HIGH SCHOOL AWCC# H203685 June 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BUTLER_BETTY_H203685_20250626.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BUTLER_BETTY_H203685_20250626.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        CLAIM NO.: H203685 \n \nBETTY BUTLER,   \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nJACKSONVILLE HIGH SCHOOL,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                  \n \nARKANSAS SCHOOL BOARDS ASSOC. WCT,  \nCARRIER/TPA                                                                                                       RESPONDENT  \n \n \n        \n                                                OPINION FILED JUNE 26, 2025    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant, pro se, failed to appear at the hearing. \n \nRespondents represented  by the  Honorable Melissa Wood, Attorney  at  Law, Little  Rock, \nArkansas. \n \n                                                   STATEMENT OF THE CASE      \n \nThis  matter  comes  before  the  Commission pursuant  to  a motion  to dismiss filed by the \nRespondents.  A hearing on the motion was conducted on June 11, 2025, in Little Rock, Arkansas.  \nPresently the sole issue for determination before the Commission is whether this claim should be \ndismissed due to the Claimant’s failure  to prosecute it  under Ark.  Code  Ann.  §11-9-702 (Repl. \n2012), and/or Arkansas Workers’ Compensation Commission Rule 099.13. \n The record consists of the June 11, 2025, hearing transcript and documentary evidence.   \nIn that regard, Commission’s Exhibit 1 encompassing three (3) actual pages, as it has which has  \nbeen marked accordingly, and Respondents’ Exhibit 1 consisting of seven (7) numbered pages was \nthus, so designated.   \n\nButler – H203685 \n \n \n2 \n \n Reasonable notice of the dismissal hearing was tried on all the parties in the manner  \nestablished by applicable law.   \nNo testimony was taken at the hearing.  \n                        Background \nThe record reflects the following procedural history: \n On December 20, 2022, the Claimant’s attorney of record in this matter filed a Form AR-\nC, with the Commission, alleging that the Claimant sustained an accidental injury, on May 5, 2025, \nwhile working for the respondent-employer.  According to this document, the Claimant allegedly \nsustained compensable injuries while mopping and  missed  stepped  and  fell.   The  Claimant \nallegedly  injured  her  right  elbow,  arm,  hand, left  leg and  back.  On this  form,  the Claimant \nrequested both initial and additional benefits in  the  form  of every  conceivable  benefit allowed \nunder law.    \nThe  Respondents  a  Form  AR-2, with  the  Commission on  May  20,  2022.    At  this  time, \nRespondents accepted this case as a claim for compensable injuries to the Claimant’s right elbow \nand back.   \nSubsequently, on May 17, 2023, the Claimant’s attorney filed a letter with the Commission \na stating that he was withdrawing as counsel of record for the Claimant in this matter.  There has \nbeen no objection to the Claimant’s attorney to withdraw from representing the Claimant in this \ncase.   Therefore, the above request to withdraw from this case is hereby granted.  \nSince the filing of the Form AR-C, the Claimant has failed to prosecute or otherwise pursue \nher claim for workers’ compensation benefits.  Specifically, it has been more than six (6) months \nsince the filing of the Form AR-C; but thus far, the Claimant has made no bona fide request for a \nhearing with respect to her claim.   \n\nButler – H203685 \n \n \n3 \n \nAs a result, on April 14, 2025, the Respondents/the workers’ compensation claims adjuster \nfiled with the Commission a letter-motion to dismiss this claim due to a lack of prosecution of it \nby the Claimant.  The adjuster copied the Claimant on this correspondence, by placing a copy of \nit in the mail with the United States Postal Service.   \nSubsequently, on April 16, 2025, my office wrote to the Claimant and requested a written \nresponse to the motion within twenty (20) days.  Said letter was mailed to the Claimant by both \nfirst-class and certified mail to the address listed by the Claimant with the Commission.   \nPer tracking information received from the Postal Service, on April 22, 2025, the dismissal \nhearing  notice  sent by certified  mail  to  the  Claimant was  delivered to her home  address  listed \nabove and left with an individual.  The signature of the recipient of said letter bears the Claimant’s \nsignature, which is legible.  However, the letter sent by first-class mail, it has not been returned to \nthe Commission.   \nOn May 7, 2025, my office sent a Notice of Hearing to the parties scheduling this matter \nfor a dismissal hearing on June 11, 2025, at the Commission.   Said hearing notice was sent to the \nClaimant by both first-class and certified mail to the same address as before.   \nTracking information received from the United States Postal Service shows that on May 9, \n2025, they delivered the certified mail notice to the Claimant’s home.  Specifically, the signature \nof the recipient section of the proof of delivery shows that this item was delivered directly to the \nClaimant, as it bears her signature.  The notice sent by first-class mail has not been returned to the \nCommission.   Thus,  the above evidence  preponderates  that reasonable notice  of  the dismissal \nhearing was made upon the Claimant as required under law.  \nTherefore, the dismissal hearing was conducted on the Respondents’ motion to dismiss this \nclaim as formerly scheduled.  Despite having received notice of the dismissal hearing, the Claimant \n\nButler – H203685 \n \n \n4 \n \ndid not appear at the hearing.  However, the Respondents appeared at the hearing through their \nlawyer.  The Respondent’s counsel argued, among other things, for dismissal of this claim because \nthe  Claimant  has made  no bona fide  request for  a hearing or taken  any action to prosecute or \notherwise resolve his claim since the filing of the Form AR-C in December 2022.  Specifically, \nthe attorney for Respondents moved for dismissal without prejudice, under the authority of Ark. \nCode Ann. §11-9-702, and/or Commission Rule 099.13.   \n            Adjudication  \nThe statutory  provisions and Arkansas Workers’ Compensation Rule applicable to the \nRespondents’ motion for dismissal of this claim for workers’ compensation benefits are outlined \nbelow:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, Ark. Code Ann. §11-9-702(d) states:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \n\nButler – H203685 \n \n \n5 \n \nreopen  is  filed  with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \nThe evidence shows that the Claimant has failed to respond to the written notices of this \nCommission, and she did not appear at the hearing to object to the dismissal motion.  Moreover, \nsince the filing of the Form AR-C, which was done in December 2022, the Claimant has not made \na bona fide request for a hearing with respect to her claim.  Considering all the foregoing, I am \ncompelled  to  conclude  that  the  Claimant  has  abandoned  her claim for workers’ compensation \nbenefits.   \nAccordingly,  based  on my  review  of  the documentary  evidence,  and  all  other  matters \nproperly before the Commission, I find that the Respondents’ motion  to dismiss  this  claim is \nwarranted  under  the  provisions  of Ark.  Code  Ann.  §11-9-702 (a)(4), §11-9-702 (d),  and Rule \n099.13 of this Commission.  Said dismissal is without prejudice, to the refiling of this claim within \nthe limitation period specified by law.   \nThe Claimant’s attorney’s motion to withdraw from representing her in this claim is hereby \ngranted. \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n\nButler – H203685 \n \n \n6 \n \n2. In December  2022,  the  Claimant’s attorney filed  a Form  AR-C with  the \nCommission in   this   matter   asserting   her entitlement to workers’ \ncompensation benefits due to an alleged accidental injury occurring on May \n5, 2022. \n  \n 3.        The attorney for the Claimant is hereby permitted to withdraw from  \n                        representing her in this matter.   \n                         \n 4. Since the filing of the Form AR-C, more than six (6) months have passed,  \n  and the Claimant has not made a bona fide request for a hearing.    \n \n 5. The Respondents filed with the Commission, a motion to dismiss this claim,  \n                        for which a hearing was held. \n \n6.         Reasonable notice of the motion to dismiss and hearing was had on all the \nparties.  \n \n7.         The evidence preponderates that the Respondents’ motion to dismiss this  \n            claim for want of prosecution is warranted.   \n \n8.         That the Respondents’ motion to dismiss is hereby granted pursuant to Ark.  \n Code Ann. §11-9-702 (a)(4), §11-9-702 (d), and Commission Rule 099.13,   \n without prejudice, to the refiling of the claim within the specified limitation      \n period.   \n \nORDER \nIn accordance with the foregoing findings of fact and conclusions of law, the attorney for \nthe Claimant  is  permitted  to  withdraw  from  representing the Claimant  in this  matter; and most \nsignificantly, this claim is hereby dismissed without prejudice, pursuant to Ark. Code Ann. §11-\n9-702 and Commission Rule 099.13 to the refiling within the specified limitation period.        \nIT IS SO ORDERED. \n   \n                                  \n                                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge \n \n\nButler – H203685 \n \n \n7","textLength":11819,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H203685 BETTY BUTLER, EMPLOYEE CLAIMANT JACKSONVILLE HIGH SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA RESPONDENT OPINION FILED JUNE 26, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulas...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:40:06.565Z"},{"id":"alj-H303639-2025-06-26","awccNumber":"H303639","decisionDate":"2025-06-26","decisionYear":2025,"opinionType":"alj","claimantName":"Afrim Rushani","employerName":"Nbmc, Inc","title":"RUSHANI VS. NBMC, INC. AWCC# H303639 June 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RUSHANI_AFRIM_H303639_20250626.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RUSHANI_AFRIM_H303639_20250626.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM No H303639 \n \nAFRIM RUSHANI, EMPLOYEE        CLAIMANT \n \nNBMC, INC., EMPLOYER            RESPONDENT \n \nTRAVELERS INDEMNITY CO. OF CT, CARRIER/ \nTHE TRAVELERS INDEMNITY CO., TPA          RESPONDENT \n \n \nOPINION & ORDER FILED 26 JUNE 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 2 April 2025 in Little Rock, Arkansas. \n \nThe claimant was represented by the Gary Davis Law Firm, Mr. Gary Davis. \n \nThe respondents were represented by the Ryburn Law Firm, Mr. Michael E. Ryburn. \n \nSTATEMENT OF THE CASE \n \n A Prehearing Order was filed on 28 January 2025 and admitted to the hearing \nrecord without objection as Commission’s Exhibit No 1. Consistent with that Order, the \nparties agreed to the following: \nSTIPULATIONS \n \n1. The Commission has jurisdiction over this claim. \n \n2. The employer/employee/carrier-TPA relationship existed at all relevant \ntimes, including on 24 March 2023, when the claimant suffered accepted \ncompensable injuries to his back and lower extremity. \n \n3. Temporary Total Disability (TTD) benefits and permanent partial disability \n(PPD) benefits have been paid by the respondents. \n \n4. The claimant’s average weekly wage was $1,159.89, which would entitle him \nto weekly TTD benefits of $773 and weekly PPD benefits of $580. \n \nISSUES \n \n1. Whether the claimant is entitled to wage-loss benefits. \n \n2. Whether the claimant is entitled to an attorney’s fee. \n\nRUSHANI- H303639 \n2 \n \n \nAll other issues have been reserved.\n1\n \n \nCONTENTIONS \n \nThe Prehearing Order incorporated by reference the following contentions from the \nparties’ respective prehearing information responses: \nClaimant CONTENDS that he sustained admitted compensable \ninjuries 24 April 2023. The claim was accepted as compensable. Temporary \ndisability benefits and permanent impairment benefits have been paid. \nClaimant contends that he is entitled to a wage loss disability determination. \nThese benefits have been controverted for purposes of attorney’s fees. \nClaimant reserves all other issues.  \n \nRespondents CONTEND that the claimant has a compensable injury. \nAll of the appropriate benefits have been paid. A PPD rating is being paid \ncurrently. The claimant has no wage loss.  \n \nFINDING OF FACTS AND CONCLUSIONS OF LAW \n \n Having reviewed the record as a whole, including the evidence summarized \nbelow, and having heard testimony from the witness, observing his demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The stipulations as set forth above are accepted. \n \n3. The claimant has proven by a preponderance of the evidence that he is \nentitled to a wage-loss benefit of ten percent (10%) over and above his eight \npercent (8%) whole-body impairment rating for his stipulated compensable \nback injury. \n \n4. The claimant has proven by a preponderance of the evidence that he is \nentitled to an attorney’s fee on the indemnity benefits awarded in this \nopinion. \n \n \n \n \n1\n Whether the respondents are entitled to a credit under Ark. Code Ann. § 11-9-411 against \ncertain long-term disability benefits purportedly owed or payable to the claimant is \nspecifically reserved. See the Preliminary Rulings section below. \n\nRUSHANI- H303639 \n3 \n \nPRELIMINARY RULING \nOffset/Credit for Long-term Disability Benefits \n During the claimant’s cross-examination, he testified that he was entitled to receive \nbenefits from a long-term disability insurance policy. He was, however, unable to \nconfidently testify as to any specifics about the policy. \nQ:  Do you have a long-term disability policy? \n \nA:  Not that I know of. \n \nQ:  In one of the reports, one of the medical reports it says—dated 7/8 of ’24, \n“Patient did obtain his long-term disability.” \n \nA:  That was something that we sent in to work and that was what they told \nus, what we would obtain it. \n \nQ:  Did you get it? \n \nA:  As of right now, it’s still pending. \n \nQ:  What kind of disability policy is it when—you said you sent it in to work? \n \nA:  They had a disability policy. I don’t know if it was through my work or \nhow, they just asked for the documentation; so I sent it to them and I was \nsupposed to hear back from somebody. \n \nQ:  And, okay—and back in July of ’24 this happened? \n \nA:  I can’t recall the date. \n \nQ:  All right. So you do have a long-term disability and you said you’ve been \napproved? \n \nA:  As of right now, yes, but nothing has come out of it. \n \nQ:  And it’s an employer-based—through your employment, they paid for this \npolicy? \n \nA:  I’m not sure if it was through my employment or through contribution of \nwhat I paid into it. \n \nQ:  How much is this long-term disability going to pay? \n \nA:  I’m not sure. \n \n\nRUSHANI- H303639 \n4 \n \n[TR at 33-34.] \n At the close of the evidence, the discussion turned back to the long-term disability \nplan and whether the respondents were entitled to an offset. \nMr. Ryburn:  Your Honor, I just found out about this long-term disability. \nThat is something, by law, that we could get a credit for, if it’s paid for by the \nemployer and I’d like to get some kind of information for you and Gary to see \nif that’s going to be a factor in this case. \n \n. . .  \n \nMr. Davis: I object to Mr. Ryburn trying to get information into this record, \nafter today, considering that fact that he said he just found out about it, and \nhe could have found about it any time before today, and now, he wants to \nraise that as an issue that he’s entitled to some sort of credit. He doesn’t have \nany evidence that he’s entitled to a credit, because he didn’t find out about it \nbefore today, get the information before today and all the things, which he \ncould have done before today. So, I’m objecting to it. \n \nJudge:  So to be clear, what is being asked of me with regard to the potential \ncredit that might be available under some sort of policy? \n \nMr. Ryburn:  I would like to find out number one, did the employer pay for \nthe policy. Number two, is the policy, is it something that has ben awarded, \nbut they’re taking a credit for workers’ comp or whatever, and number—and \nby the way, the claimant canceled his deposition; so that is a factor to be \nconsidered also, but— \n \n. . .  \n \nMr. Davis:  Your Honor, by law, the evidence has to be presented at the \nhearing. \n \nJudge:  Okay. \n \nMr. Ryburn:  We’ve got evidence. It’s been awarded, so. \n \nMr. Davis:  We don’t have any evidence. We don’t have any evidence. \n \nJudge:  Well, his testimony wasn’t certain around it. \n \n. . .  \n \nMr. Ryburn:  I think, the law says that the claimant is supposed to disclose \nthat and it wasn’t disclosed to me. \n \nMr. Davis:  He didn’t ask him. \n\nRUSHANI- H303639 \n5 \n \n \n . . .  \nMr. Ryburn:  This doesn’t have anything to do with the wage-loss claim. This \nhas to do with the statute. It says, “Respondents...” \n \nJudge:  I see, he’s saying there’s a statutory right to an offset. \n \nMr. Ryburn:  Yes. \n \nJudge:  And that he wasn’t aware of the potential offset, until it was elicited \nin his testimony, but— \n \nMr. Davis:  Yeah, he— \n \nJudge:  I see what you’re saying also. \n \nMr. Davis:  He didn’t make himself aware. \n \nJudge:  Well, I will address that in [the] opinion... \n \n[TR at 55-58, 63.] \n As noted in the discussions above, Arkansas law provides for respondents to receive \na dollar-for-dollar credit against certain disability benefits paid to a claimant when the \npolicy is paid for by or provided with a contribution from the claimant’s employer. Ark. \nCode Ann. § 11-9-411. In Brigman v. City of West Memphis, 2013 Ark. App. 66, 2013 Ark. \nApp. LEXIS 73, the Court of Appeals held that when a respondent-employer paid a portion \nof a policy premium, the respondent-employer is entitled to an offset against indemnity \nbenefits owed by them to the extent that they contributed. The respondents have the \nburden to prove their entitlement to an offset by a preponderance of the evidence. Ark. \nCode Ann. § 11-9-705(a)(3). \n It is clear from the claimant’s testimony that a long-term disability policy and \naccompanying benefits are at play in this matter. He testified that he has not yet received \nany of the benefits that he is owed. He could not explain the specifics of the policy structure \nbeyond that his premium payments appeared to be withheld from his regular wages.  \n\nRUSHANI- H303639 \n6 \n \n The issue of whether they are entitled to an offset was not an anticipated issue in \nthis matter. The respondents’ right to an offset is established in the statute. Due to the \ninsufficiency of the evidence available in the record and at the time of the hearing, I am \nunable to fully address the matter. The issue of the respondents’ entitlement to an offset is \nnot yet ripe for adjudication. It is, therefore, reserved for further litigation. \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nSUMMARY OF THE EVIDENCE \nThe claimant was the only witness. The record consists of the hearing transcript and \nthe following exhibits: Commission’s Exhibit No 1 (the 28 January 2025 Prehearing Order) \nand Claimant’s Exhibit No 1 (two index pages and 171 pages of medical records). \nHearing Testimony \nThe claimant is thirty-six years old. He left high school half-way through his \nsophomore year and has been working manual labor jobs since. The respondent-employer is \n\nRUSHANI- H303639 \n7 \n \nin the commercial construction business. At the time of his accepted compensable back and \nlower extremity injuries, the claimant was working as an assistant jobsite superintendent. \nHis duties included supervising various work crews and performing work alongside them. \nHe testified that the work included bending, stooping, lifting, pushing, pulling, and being \non his feet all day. His typical work week averaged between 50 and 55 hours. \nOn the day he was injured, the claimant was finishing a project at a bank building. \nHe was cleaning up and moving furniture when he felt a sudden pop in his lower back. “As I \nwent to stand up with it, I felt as if something popped and shifted in my lower back and it, \ninstantly, dropped me to my knees. I’ve never felt pain like that. I couldn’t move, couldn’t \nsit or I was in a squatting position until Jose [his supervisor] pretty much put me in the \nwork truck.” [TR at 15.] \nA report from an MRI scan on 4 May 2023 listed mild spondylosis at L5-S1 with disc \ndesiccation and a bulging disc. [Cl. Ex. No 1 at 4.] The claimant experienced severe lower \nback pain and radicular pain down his left leg. He testified that his treatment included \nphysical therapy, acupuncture, chiropractic sessions, injections, and surgery (a left-sided \ndecompression at L5-S1). An aching pain developed in the claimant’s right leg at some point \nduring the course of his treatments. A trial implantation of a spinal cord stimulator was \nperformed in early 2024, but it was removed the same day due to increased reports of pain. \nThe claimant testified that he passed all consistency measures during a Functional \nCapacity Evaluation (FCE) that placed him in a Light Classification for work. Around the \nsame time, he was advised that his job with the respondent-employer could not be held \nopen any longer. He was not offered a light-duty position or vocational rehabilitation \nservices. \nAccording to the claimant, he takes three medications everyday: Pregabalin helps \nhim with nerve pain, spasms, and cramps; Hydrocodone treats pain; and Tizanidine helps \n\nRUSHANI- H303639 \n8 \n \nhim try to sleep. He can experience side effects from the medications that include \nforgetfulness, confusion, difficulty concentrating, and restlessness. He spends most days at \nhome and is sometimes unable to get out of bed. Even on “good” days, the claimant is not \nable to be of much help around the house or with his children due to pain and difficulty \ngetting around. His wife now takes care of most housework, while they shared those \nresponsibilities before his injury. The claimant can drive; but he avoids taking Hydrocodone \nwhen he anticipates driving so that he can be more alert. He recently moved his family \nfrom the home they owned into a rental to ease the financial burden caused by his inability \nto earn an income. The family also recently re-homed their two dogs because of the \ndifficulties they encountered in continuing to care for them. \nOn cross-examination, the claimant acknowledged that he had been assigned and \npaid an eight percent (8%) impairment to the whole body in connection with his stipulated \ncompensable back injury. He denied looking for employment and said that he cannot think \nof any work that he can do. The claimant stated that he had applied for and been approved \nfor some sort of long-term disability benefit. He denied, however, that any benefits had been \npaid on that policy yet; and he was unable to explain any details about the policy beyond \nthinking that the policy premiums were part the withholdings from his paychecks. He also \ndenied asking any doctor to write a report saying that he could not or should not work. \nRespondents’ counsel asked about whether the claimant could perform some \ndifferent jobs that were listed as light-duty in publicly available postings. The claimant \nexplained the difficulties that he believed he would experience if he were working in those \nroles. They discussed a letter from Dr. Charles Clifton that suggests that the claimant \nshould not return to work because of his pain medications. [Cl. Ex. No 1 at 171.] That letter \nrefers the reader to Dr. Eugene Becker for further clarification.  \n\nRUSHANI- H303639 \n9 \n \nWhen asked whether “anything that has been done alleviated any of your pain,” the \nclaimant answered, “No.” [TR at 44.] He is very limited in his ability to participate in \nactivities in or around the home, to the detriment of his family’s overall wellbeing. He \nintends to move his family back to Illinois in the future so that they can be closer to the \nsupport of other family who live there. He explained that his family relocated to Arkansas \nafter it was recommended that they move his then-one-year-old daughter closer to \nArkansas Children's Hospital for treatment she was needing at the time. \nMedical Evidence \n An X-ray report from 4 April 2023 showed no significant findings for the claimant’s \nlumbar spine. [Cl. Ex. No 1 at 1.] He presented to Baptist’s Greenbrier Family Clinic on 20 \nApril 2023, when Dr. Charles Clifton noted the claimant’s report of severe pain in his \nlumbar spine. Dr. Clifton suspected a disc herniation at L4-5, L5-S1 and ordered an MRI \nscan. [Id. at 2-3.] The MRI report included, “IMPRESSION: Mild spondylosis at L5-S1 with \ndisc desiccation and disc bulging but no significant central canal or neural foraminal \nnarrowing.” [Id. at 4.] \n On 19 May 2023, the claimant was seen by Dr. Drew Beasley at Baptist Health \nSpine Center. According to that note: \n... He states he was lifting a heavy object at work at an awkward angle and \nstarted to have pretty severe lower back pain with radiation down the LLE. \nCalled into a[n] Urgent Care that Monday and was provided an anti-\ninflammatory and some prednisone without relief. No RLE symptoms. \nNumbness present in the LLE. He feels like he has some issues with \ndorsiflexion of the left foot. No issues in the past with his type of pain. \n \n[Id. at 6-8.] Dr. Beasley referred the claimant to physical therapy and planned a \ntransforaminal epidural injection. The procedure was performed a few days later, on 23 \nMay 2023. [Id. at 9-10.] \n\nRUSHANI- H303639 \n10 \n \n At a Spine Center follow-up on 16 June 2023, he reported no improvements with \nphysical therapy and only very short-term relief from the injection. [Id. at 34.] Dr. Beasley \nplanned to discuss the case and potential surgical options with Dr. Pervie Simpson. \nImaging ordered by Dr. Simpson showed: \n1.  Small left paracentral protrusion at L5-S1 is again identified with mild \ncontact on the descending left S1 nerve root sleeve. \n \n2.  Disc degeneration is seen with midline annular fissure and small central \nprotrusion at L5-S1, as seen on previous. \n \n[Id. at 36.] \n On 11 July 2023, the claimant saw Dr. Simpson in clinic: \nAssessment and Plan: \nI do not think that he is a surgical candidate. I am waiting for his nerve \nconduction studies. I will see him back after that [has] been completed. \nThis gentleman is worried that he is not going to be able to return to heavy \nmanual labor. I explained to him that would be his decision. He knows what \nis required of him and his job. I agree with radiology[.] I think this is a small \ndisc protrusion that really does not impinge on the S1 nerve root \nsignificantly. \n \nDiagnosis: \nLumbar radiculopathy \n \n[Id. at 42.] \n After undergoing a nerve conduction study, the claimant returned to Dr. Simpson: \n... His MRI does show a small disc fragment under the S1 nerve root and \nEMG/NCS correlates with these findings. He has completed 5 weeks of \nphysical therapy and had a TFESI with Dr. Beasley with no lasting relief. \nAfter exhausting conservative measures I discussed with him the option of a \nleft L5-S1 minimally invasive discectomy for decompression of this nerve root \nand he has elected to proceed. \n \n[Id. at 45.] \n Dr. Blake Phillips performed the discectomy procedure on 7 September 2023. The \nclaimant followed-up with physical therapy until a 6 December 2023 session when it was \n\nRUSHANI- H303639 \n11 \n \nnoted, in part, that, “Pt. pain levels have been too severe to make any progress with PT and \nat this point I do not think it is in his best interest to continue with PT.” [Id. at 96.] \n The claimant began treating with Dr. Eugene Becker at Proper Pain Solutions on 18 \nJanuary 2024. He reported his pain at a level of 7 out of 10 that day. The assessment from \nthat visit included: \n1.  Low Back Pain \n2.  Intervertebral disc w/radiculopathy, lumbar \n3.  Postlaminectomy syndrome \n4.  Other long term (current) drug therapy \n5.  Long term (current) use of opiate analgesic \n \n[Id. at 100.] At a follow-up visit on 23 February 2024, Dr. Becker suggested that the \nclaimant consider a spinal cord stimulator to help control his pain. [Id. at 104.] \n An MRI report from 22 February 2024 noted: \nIMPRESSION: \n1.  Multilevel degenerative disease. \n2.  Mild foraminal stenoses bilaterally at L3-4, on the left at L4-5, and on the \nleft at L5-S1. \n3.  No evidence of frank exiting or transiting nerve root impingement. \n4.  Normal alignment and no evidence of acute compression deformity. \n \n[Id. at 106.] \n On 22 March 2024, Dr. Becker performed a trial implantation of a spinal cord \nstimulator under fluoroscopic needle guidance. According to the notes, the claimant \ntolerated the procedure well. [Id. at 113-114.] But the claimant began experiencing severe \npain shortly after the procedure and met Dr. Becker at the emergency department later \nthat evening for removal of the stimulator leads. Id. \n On 2 April 2024, Dr. Clifton authored a letter that stated: \nAfrim Rushani has been followed up by us and Neurosurgery for the ongoing \nWorkers’ Compensation injury that has kept him out of work for an extended \ntime. The patient did have surgery that was unsuccessful and will not be able \nto return to work until he follows up with Neurosurgery as it may cause \nmuch more damage to his back until able to determine what the best course \n\nRUSHANI- H303639 \n12 \n \nof action on this is. This may be an extenuated timeframe, and we will update \n[t]he amount of time off he will need as we get updates from Neurosurgery. \n \n[Id. at 118.] Just six days later, on 8 April 2024, Dr. Clifton authored another letter: \nAfrim Rushani [has treated] for several months under my care for an injury \nto his lower back that was sustained while at work. Over the course of this \ntreatment, he has had to have several referrals placed and recently had a \nsurgery that did not improve his condition. At this time it is within my best \nmedical opinion that the patient should be considered disabled due to this \ncondition as he is on a gross amount of medication for pain management. I \nhave attached this list of medications. Please note that these medications, \nwhile not prescribed by me, are not doing much to help this patient’s \nsymptoms and pain. The patient listed above will not be able to return to \nwork in the foreseeable future until a new treatment plan can be found to \nimprove his symptoms. \n \n[Id. at 122.] \n The claimant saw Dr. Becker again on 22 April 2024. The note from that visit stated, \nin part: \nThe patient had a previous injection. The patient has undergone the \nfollowing treatments: physical therapy, acupuncture, chiropractor, brace, \nTENS unit, surgery, epidural steroid injections. The patient has had the \nfollowing tests performed: MRI. Current medications DO help with his pain. \nThere are no side effects from the medications. He ambulates without any \nassistive devices... \n. . .  \nOverall, the patient has achieved maximum medical improvement at this \ntime. So, we will schedule the patient for functional capacity evaluation to \ndetermine what his limitations are. Also in terms of logistics, the patient \nshould undergo independent medical evaluation to see if there are any \nadditional recommendations. For right now, we will manage patient’s \nmedications. He will follow up in 8 weeks. \n \n[Id. at 119, 121] \n The FCE was conducted on 29 April 2024. The claimant put forth very reliable \neffort, “with 49 of 49 consistency measures within expected limits.” [Id. at 123.] The \nevaluator concluded that the claimant “demonstrated the ability to perform work in the \nLIGHT classification of work as defined by the US Dept of Labor’s guidelines over the \ncourse of a normal 8 hour workday....” The table included in that report listed the following \n\nRUSHANI- H303639 \n13 \n \n“Demand Characteristics of Work” for the LIGHT category: Occasional (1-33% of the \nworkday; up to 2 hours, 40 minutes) 11-20 pounds; Frequent (34-66% of the workday; up to \n5 hours, 20 minutes) 1-20 pounds; Constant (67-100% of the workday; up to 8 hours) \nNegligible. [Id. at 125.] \n In subsequent visit notes, Dr. Becker repeated that the claimant had reached \nmaximum medical improvement. The notes also indicate that the claimant had obtained \nlong-term disability benefits. Then, on 26 September 2024, Dr. Clifton provided another \nletter: \nAfrim Rushani was seen in my clinic on 9/26/2024. He is under my care and \nalso Dr. Becker. He has been put off work indefinitely due to his medical \ncondition. He is under stick medication [sic] which causing him not to be able \nto drive or work any machinery. He is unable to focus or do any type of work. \nIt is not recommended for him to work at all. Please refer to Dr. Becker for \nfurther information to prove this statement. \n \n[Id. at 171.] \nDISCUSSION \nThe parties stipulated that the claimant sustained accepted compensable injuries to \nhis back and lower extremity. His back injury is unscheduled. Cf. Ark. Code Ann. § 11-9-\n521. The injury to the claimant’s lower extremity is a scheduled one under Ark. Code Ann. § \n11-9-521(a)(3). Wage-loss benefits are only available in relation to unscheduled injuries, \nlike the claimant’s stipulated back injury. See Federal Compress & Whse. v. Risper, 55 Ark. \nApp. 300, 935 S.W.2d 279 (1996). His claim for wage-loss benefits must, therefore, be \nevaluated only in relation to his stipulated compensable back injury. \nWage Loss \nThe wage-loss factor is the extent to which an injured worker’s compensable injury \nnegatively impacts that person’s ability to earn a livelihood. Rice v. Ga.-Pacific Corp., 72 \nArk. App. 148, 35 S.W.3d 328 (2000). “In considering claims for permanent partial disability \n\nRUSHANI- H303639 \n14 \n \nbenefits in excess of the employee's percentage of permanent physical impairment, the \nWorkers' Compensation Commission may take into account, in addition to the percentage of \npermanent physical impairment, such factors as the employee's age, education, work \nexperience, and other matters reasonably expected to affect his or her future earning \ncapacity.” Ark. Code Ann. § 11-9-522(b)(1). A claimant’s motivation to return to work may \nbe considered also. Rice, supra. If a work-related injury combines with a preexisting disease \nor condition or the natural process of aging to cause or prolong the disability or need for \ntreatment, permanent benefits shall be payable for the resultant condition only if the \ncompensable injury is the major cause of the permanent disability or need for treatment. \nArk. Code Ann. § 11-9-102(4)(F)(ii)(a). Major cause means something that is more than fifty \npercent (50%) of the cause. Ark. Code Ann. § 11-9-102(14)(A). \nThere is no exact formula for determining a claimant’s wage loss. Hixon v. Baptist \nHealth, 2010 Ark. App. 413, 375 S.W.3d 690. To be entitled to any wage-loss disability in \nexcess of an impairment rating, the claimant must prove by a preponderance of the \nevidence that he sustained a permanent physical impairment as the result of a \ncompensable injury. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 373, 326 S.W.3d 415. \n The claimant is thirty-six years old, with a wife and two children. He does not have \na college education or even a high school diploma. He has worked as a construction laborer \nsince his teens. The claimant’s family relocated from Illinois to Central Arkansas to be close \nto treatment available at Arkansas Children’s Hospital that his daughter required in the \npast. While his most recent job with the respondent-employer included some supervisory \nresponsibilities, the claimant still performed physical labor alongside the various crews he \nwas responsible for overseeing. He has few skills that would translate outside of physical \nlabor on a construction project site. \n\nRUSHANI- H303639 \n15 \n \n Multiple conservative therapies were not successful in moderating the claimant’s \npain. He experienced little relief from a discectomy procedure and believes that he feels \nconstant aching in his leg as a result of the scar tissue that resulted from that surgery. A \nspinal cord stimulator trial failed within hours after implantation and had to be removed \nemergently. The records do not reflect any other surgical options that are likely to provide \nrelief from the claimant’s constant pain. Multiple letters from Dr. Clifton state that the \nclaimant’s ability to work is very limited because of his pain management medication and \nthat he should be considered disabled due to his symptoms and/or side effects from his \nmedication.  \n While the claimant’s FCE put him in the Light Classification, he testified to his \nperceived difficulty in performing jobs that fall into that category. He acknowledged not \nseeking any work since he was let go from his job with the respondent-employer, and I do \nnot find him to be very motivated to return to the workforce. I believe that this is likely \nbecause of his lack of experience and unfamiliarity with anything outside of the realm of \nphysical labor and on-site construction work. Nonetheless, I believe his explanation about \nthe difficulties he and his family have experienced because of his inability to work in the \nonly trade he has ever known. The claimant testified that he did not take some of his pain \nmedication on the day of the hearing (1) so he would be more alert driving between his \nhome in Greenbrier and Little Rock and (2) so he was less likely to experience some of the \nfogginess and forgetfulness that he sometimes experiences on his medication. Having not \ntaken some of his usual medication, he was clearly in pain and struggled to find any seated \nposition that he could maintain for any length of time. His limitations on some or all of his \nmedication will make his return to work difficult even in the Light Classification. \nThe record shows that an eight percent (8%) whole-body impairment rating was \nassigned to the claimant and paid by the respondents in connection with the claimant’s \n\nRUSHANI- H303639 \n16 \n \nstipulated compensable back injury. The issue here is whether the claimant is entitled to \nany wage-loss benefits over and above his assigned and accepted rating. I find that the \nclaimant proved by a preponderance of the evidence that he is entitled to a wage-loss \nbenefit of ten percent (10%) in excess of his impairment rating. I also find that his \nstipulated compensable back injury is the major cause of the wage loss.  \nAttorney’s Fee \nThe claimant has proven by a preponderance of the evidence that he is entitled to \nwage-loss benefits. He has consequently proven by a preponderance of the evidence that he \nis entitled to an attorney’s fee on the benefits awarded in this opinion. \nCONCLUSION & AWARD \n The claimant has proven his entitlement to the indemnity benefits outlined above. \nThe respondents are directed to provide benefits accordingly. All accrued amounts shall be \npaid in a lump sum without discount, and this award shall earn interest at the legal rate \nuntil paid. Ark. Code Ann. 11-9-809. See Couch v. First State Bank of Newport, 49 Ark. App. \n102, 898 S.W.2d 57 (1995). \n The claimant’s attorney is entitled to a twenty-five percent (25%) fee on the benefits \nawarded herein. One-half (1/2) of the fee is to be paid by the claimant, and one-half (1/2) of \nthe fee is to be paid by the respondents, consistent with A.C.A. §11-9-715. See Death & \nPermanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2012). \n IT IS SO ORDERED. \n       ______________________________________ \n       JayO. Howe \n       Administrative Law Judge","textLength":30679,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM No H303639 AFRIM RUSHANI, EMPLOYEE CLAIMANT NBMC, INC., EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO. OF CT, CARRIER/ THE TRAVELERS INDEMNITY CO., TPA RESPONDENT OPINION & ORDER FILED 26 JUNE 2025 Heard before Arkansas Workers’ Compensation Commission Administrat...","outcome":"granted","outcomeKeywords":["granted:7"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T22:40:08.658Z"},{"id":"alj-H404478-2025-06-26","awccNumber":"H404478","decisionDate":"2025-06-26","decisionYear":2025,"opinionType":"alj","claimantName":"Marilynn Vandever","employerName":"Homeb0und Medical","title":"VANDEVER VS. HOMEB0UND MEDICAL AWCC# H404478 June 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/VANDEVER_MARILYNN_H404478_20250626.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"VANDEVER_MARILYNN_H404478_20250626.pdf","fullText":"Bl J •ORE THE ARKANSAS WORKJ •:RS' COMPJ ~NSJ\\ T TON COMl'vfTSSTON \nCLAIM \nNO. H 404478 \nMi\\RILYNN G. V r\\NDEVER, EMPLOYEE \nII0iv1EB0UND MEDICAL, EMPLOYER \nSCNIMIT CONSULTING T J ,C, CARRIER/TPJ\\ \nNl;NC PRO TUNC ORDER FILED JUNE 26, 2025 \nCL\\li\\1ANT \nRESPONDENT \nRESPONDENT \nThe undersigned finds that a clerical error exists in the opinion filed June 20, 2025. The date \non page 1 of the opinion is  hereby amen<le<l pursuant to 1\\rk. Co<le An n. § 11-9-713(d) (Repl. 2002) \nto change \nthe date of the opinion from July 20, 2025, to June 20, 2025. \nIn all other respects, the opinion shall remain the same an<l shall not be otherwise affected. \nIT IS SO ORDERED.","textLength":663,"preview":"Bl J •ORE THE ARKANSAS WORKJ •:RS' COMPJ ~NSJ\\ T TON COMl'vfTSSTON CLAIM NO. H 404478 Mi\\RILYNN G. V r\\NDEVER, EMPLOYEE II0iv1EB0UND MEDICAL, EMPLOYER SCNIMIT CONSULTING T J ,C, CARRIER/TPJ\\ Nl;NC PRO TUNC ORDER FILED JUNE 26, 2025 CL\\li\\1ANT RESPONDENT RESPONDENT The undersigned finds that a clerical error exists in t...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:10.699Z"},{"id":"alj-H308247-2025-06-25","awccNumber":"H308247","decisionDate":"2025-06-25","decisionYear":2025,"opinionType":"alj","claimantName":"Katrena Macdonald","employerName":"Aramark","title":"MACDONALD VS. ARAMARK AWCC# H308247 June 25, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MACDONALD_KATRENA_H308247_20250625.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MACDONALD_KATRENA_H308247_20250625.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H308247 \n \nKATRENA MACDONALD, Employee CLAIMANT \n \nARAMARK, Employer RESPONDENT \n \nIDEMNITY INS. CO. OF NORTH AMERICA/SEDGWICK, Carrier RESPONDENT \n \n \n \n OPINION FILED JUNE 25, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant represented by ANDY L. CALDWELL, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by RANDY  P.  MURPHY,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On June  4,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at \nSpringdale, Arkansas.   A pre-hearing conference was conducted on February 26, 2025, \nand  a pre-hearing order  was  filed on that  same  date. A  copy  of  the  Pre-hearing  Order \nhas  been  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  this \nclaim. \n 2. Claimant sustained a compensable injury to her head, neck and right shoulder \non or about December 6, 2023. \n\nMacDonald – H308247 \n \n-2- \n The parties will stipulate to claimant’s compensation rates prior to the hearing. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Claimant’s entitlement to a neurosurgical evaluation as recommended by Dr. \nJacobelli. \n 2. Temporary total disability benefits from date last paid through a date yet to be \ndetermined. \n 3. Attorney’s fee. \n Subsequent  to  the  prehearing  conference,  the  claimant  added as an issue  her \ncorrect  compensation  rate.  In  addition,  claimant  clarified  that  she  was  requesting \ntemporary total disability benefits from January 28, 2025, through March 12, 2025, and \ntemporary  partial  disability  benefits  from  March  13,  2025,  through  a  date  yet  to  be \ndetermined.  \n Prior  to  the  hearing,  respondent  agreed  to  allow  claimant  to  receive  treatment \nfrom  Dr.  Olszewski;  therefore,  there  is  no  longer  an  issue  regarding  a  neurosurgical \nevaluation. In addition, respondent also agreed to pay temporary total disability benefits \nfrom  January  28,  2025,  through  March  12,  2025,  and  temporary  partial  disability \nbenefits beginning March 13, 2025. \n As a result of these agreements, the only issues to be litigated at the time of the \nhearing  are  the  claimant’s  correct  average  weekly  wage  and  corresponding \ncompensation rates and an attorney fee. \nThe  claimant  contends that  she  earned  sufficient  wages  to  entitle  her  to  an \naverage equal to $696.00, which would result in compensation rates of $464.00 for total \ndisability benefits and $348.00 for permanent partial disability benefits. \n\nMacDonald – H308247 \n \n-3- \nThe respondents contend that claimant’s average weekly wage equals $679.00, \nwhich  would  result  in  compensation  rates  of  $453.00 for temporary  total  disability \nbenefits and $340.00 for permanent partial disability benefits. \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The stipulations agreed to by the parties at the pre-hearing conference and set \nforth  in  a  prehearing  order  filed  that  same  date  on  February  26,  2025,  are  hereby \naccepted as fact. \n 2. The parties’ stipulation  that  claimant  is  entitled  to  medical  treatment  from  Dr. \nOlszewski; that claimant is entitled to temporary total disability benefits from January 28, \n2025,  through    March  12,  2025;  that  claimant  is  entitled  to  temporary  partial  disability \nbenefits  beginning  March  13,  2025;  and  that  respondent  controverted  this  claim  as  of \nJanuary 27, 2025, are also hereby accepted as fact. \n 3. Claimant has met her burden of proving by a preponderance of the evidence \nthat  she  earned  an  average  weekly  wage  of  $696.00,  which  would  entitle  her  to \ncompensation at the rate of $464.00 for temporary total disability benefits and $348.00 \nfor permanent partial disability benefits. \n 4.  Respondent  has  controverted  claimant’s  entitlement  to  the  payment  of \ncompensation  benefits  based  on  an  average  weekly  wage  of  $696.00  versus  the  rate \n\nMacDonald – H308247 \n \n-4- \npreviously  paid.  Respondent  is  liable  for  payment  of  an  attorney  fee  on  the  difference \nfor previous underpayments as well as the difference in future indemnity payments. \n \nFACTUAL BACKGROUND \n Claimant   worked   for   respondent   performing   catering   services   for   Walmart \ncorporate  events  beginning  on  October  23,  2024.  This  was  during  respondent’s \nbiweekly  pay  period  of  October  12,  2024,  through  October  25,  2024.  As  a  result, \nclaimant only worked three days during this pay period. After that time claimant worked \nsix  full  weeks  for  respondent  before  suffering  an  admittedly  compensable  injury  to  her \nhead, neck, and right shoulder on December 6, 2024. \n Claimant’s  treatment  for  her  compensable  injury  has  included  medication; \ninjections;  and  physical  therapy.  Respondent  has  paid  claimant  for  medical  treatment \nand  has  paid  some  indemnity  benefits.  Claimant  has  filed  this  claim  contending  that \nrespondent  has  paid  those  indemnity  benefits  based  on  an  incorrect  average  weekly \nwage. \n \nADJUDICATION \n Claimant  has  filed  this  claim  contending  that  respondent  has  paid  indemnity \nbenefits  based  on  an  incorrect  average  weekly  wage.  This  case  revolves  around \nwhether the three days claimant worked during the pay period ending October 25, 2024, \nshould  be  included  in  calculating  the  average  weekly  wage.  Claimant  has  excluded \nthose  three  days  from  calculating  the  average  weekly  wage,  while  respondent  has \nincluded those three days in its calculation of an average weekly wage. \n\nMacDonald – H308247 \n \n-5- \n After my review of the evidence, I find that claimant’s calculations are correct and \nthat claimant’s average weekly wage equals $696.00. Calculation of the average weekly \nwage  is  governed  by  the  provisions  of  A.C.A. §11-9-518.  Subsection  (a)(1)  of  that \nstatute states: \nCompensation  shall  be  computed  on  the  average  weekly \nwage  earned  by  the  employee  under  the  contract  of  hire  in \nforce  at  the  time  of  the  accident and  in no  case shall  be \ncomputed   on   less   than   a   full-time   workweek   in   the \nemployment. (Emphasis added.) \n \n The initial three days claimant worked for respondent were the last three days of \na  two-week  pay  period  and  did  not  constitute  a  full  week  of  work.  Therefore,  they  are \nexcluded from the average weekly wage calculation pursuant to A.C.A. §11-9-518(a)(1). \nAdditionally,  I  do  not  find  that  there  are  exceptional  circumstances  that  would  prevent \nclaimant’s average weekly wage from being fairly and justly determined by this formula.  \n Accordingly,  I  find  based  on  the  evidence  presented  that  claimant  earned  an \naverage weekly wage equal to $696.00. This results in compensation rates of $464.00 \ntotal disability benefits and $348.00 for permanent partial disability benefits. \n Respondent has controverted claimant’s entitlement to benefits at this rate and is \nliable for payment of an attorney fee on the difference between indemnity benefits paid \nat this  rate  and  the  rate  previously  paid.  It  is  also  liable  for  an  attorney  fee  on  the \ndifference for payment of future indemnity benefits.  \n \nAWARD/ORDER \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe   earned   an   average   weekly   wage   of   $696.00,   which   would   entitle   her   to \n\nMacDonald – H308247 \n \n-6- \ncompensation at the rates of $464.00 for temporary total disability benefits and $348.00 \nfor  permanent  partial  disability  benefits.  Respondent  has  controverted  claimant’s \nentitlement   to   payment   of   indemnity   benefits   for   the   difference   between   this \ncompensation rate and the rates previously paid. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.   Also pursuant to A.C.A. §11-9-715(a)(1)(B), an attorney fee is not \nawarded on medical benefits. \nAll sums herein accrued are payable in a lump sum and without discount.  This \naward shall bear interest at the maximum legal rate until paid. \nRespondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $263.90. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":9444,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H308247 KATRENA MACDONALD, Employee CLAIMANT ARAMARK, Employer RESPONDENT IDEMNITY INS. CO. OF NORTH AMERICA/SEDGWICK, Carrier RESPONDENT OPINION FILED JUNE 25, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, ...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["neck","shoulder"],"fetchedAt":"2026-05-19T22:40:04.490Z"},{"id":"alj-H403203-2025-06-24","awccNumber":"H403203","decisionDate":"2025-06-24","decisionYear":2025,"opinionType":"alj","claimantName":"Jennifer Jenkins","employerName":"Hino Motors Mfg. USA, Inc","title":"JENKINS VS. HINO MOTORS MFG. USA, INC. AWCC# H403203 June 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Jenkins_Jennifer_H403203_20250624.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jenkins_Jennifer_H403203_20250624.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H403203 \n \nJENNIFER JENKINS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nHINO MOTORS MFG. USA, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nFIRST LIBERTY INS. CORP., \nCARRIER/TPA                                                                                                     RESPONDENT \n \n \nOPINION FILED JUNE 24, 2025 \n \nHearing   conducted   on Friday, May 16,   2025,  before  the  Arkansas  Workers’  Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ) Steven  Porch,  in Forrest  City, St. \nFrancis County, Arkansas. \n \nThe Claimant, Ms. Jennifer Jenkins, Pro Se, of Marion, Arkansas. \n \nThe Respondents were represented by the Honorable Zachary Ryburn, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This matter comes before the Commission on a Motion to Dismiss by Respondents. A hearing \nwas  conducted  on May 16,  2025,  in Forrest  City,  Arkansas.  No  testimony  was  taken  in  the  case. \nClaimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe Claimant worked for the Respondent employer as a team member. The date for Claimant’s \nalleged injury was on May 9, 2024. She reported her injury to Respondent/Employer on the same date \nas the alleged injury. Admitted into evidence was Respondents Exhibit 1, pleadings, consisting of five \npages. The Commission admitted Commission Exhibit 1, postal return receipts, notice of hearing, and \ncorrespondence, consisting of seven pages. I have also blue-backed Form AR-1, and Form AR-2, as \ndiscussed infra. \nThe  record  reflects on May 15,  2024,  a  Form AR-1 was  filed  in  this  case,  reflecting  that \nClaimant purportedly reported that she was having back pain that increased in intensity resulting in \nwork limitations. Respondents on May 16, 2024, filed a Form AR-2, denying the compensability of \n\nJENKINS, AWCC No. H403203 \n \n2 \n \nClaimant’s alleged injuries. In short, the Respondents did not believe the Claimant sustained a work-\nrelated injury. On June 24, 2024, a Form AR-C was filed with the Commission through Claimant’s \nthen-attorney,  Mark  Peoples,  purporting  injuries  to  her back. Attorney Jason  Ryburn entered  his \nappearance  on  behalf  of  the  Respondents  on August  12,  2024. Attorney  Peoples filed  a  Motion  to \nWithdraw as Counsel on September 30, 2024, that was granted on October 18, 2024. \nThe Respondents next filed a Motion to Dismiss on February 20, 2025, requesting this claim \nbe dismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. Mail, notice \nof the Motion to Dismiss from my office on February 27, 2025, to her last known address. The certified \nnotice was claimed by Claimant on March 3, 2025. Claimant did not respond to the notice in writing \nas  required. Thus,  in  accordance  with  applicable  Arkansas  law,  the Claimant  was  mailed  due  and \nproper legal notice of Respondents’ Motion to Dismiss hearing date at her current address of record \nvia the United States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and \nregular First-Class Mail, on March 27, 2025. The certified hearing notice was claimed by Claimant on \nMarch 31, 2025. The hearing took place on May 16, 2025. As mentioned before, the Claimant did not \nshow up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore, after a thorough consideration of the facts, issues, the applicable law, and the evidentiary \nrecord, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant and  Respondents  both  had  reasonable  notice of  the May 16,  2025, \nhearing. \n \n3. Respondents  have  proven  by  the  preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n\nJENKINS, AWCC No. H403203 \n \n3 \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, with \nproper notice, on the Respondents’ Motion to Dismiss. The certified hearing notice was claimed by \nClaimant on March 31, 2025. Respondent’s counsel was present and argued the motion. Thus, I find \nby the preponderance of the evidence that reasonable notice was given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an action \npending before it due to a want of prosecution. The Claimant filed her Form AR-C on June 24, 2024. \nSince then, Claimant has not made a demand for a hearing or has taken any other action in furtherance \nof this claim. In this regard, the Claimant has failed to do the bare minimum in prosecuting her claim. \nTherefore, I do find by the preponderance of the evidence that Claimant has failed to prosecute her \nclaim. Thus, Respondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based on the Findings of Fact and Conclusions of Law set forth above, Respondents’ Motion \nto Dismiss is hereby granted without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":5727,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H403203 JENNIFER JENKINS, EMPLOYEE CLAIMANT HINO MOTORS MFG. USA, INC., EMPLOYER RESPONDENT FIRST LIBERTY INS. CORP., CARRIER/TPA RESPONDENT OPINION FILED JUNE 24, 2025 Hearing conducted on Friday, May 16, 2025, before the Arkansas Workers’ Compensation Commi...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:40:00.277Z"},{"id":"alj-H403871-2025-06-24","awccNumber":"H403871","decisionDate":"2025-06-24","decisionYear":2025,"opinionType":"alj","claimantName":"Timothy Young","employerName":"Ditta Enterprises, Inc","title":"YOUNG VS. DITTA ENTERPRISES, INC. AWCC# H403871 June 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Young_Timothy_H403871_20250624.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Young_Timothy_H403871_20250624.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H403871 \n \nTIMOTHY YOUNG, \nEMPLOYEE                                                                                                              CLAIMANT \n \nDITTA ENTERPRISES, INC., \nEMPLOYER                                                                          RESPONDENT  \n \nBRIDGEFIELD CASUALTY INS. CO., \nINSURANCE CARRIER                                                                                     RESPONDENT \n \nSUMMIT CONSULTING, LLC, \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED JUNE 24, 2025 \n \nHearing conducted on Friday, April 25,  2025,  before  the  Arkansas  Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Mr. Timothy Young, Pro Se, of Walnut Ridge, Arkansas.  \n \nThe Respondents  were represented by Mr.  Michael Ryburn,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non December 31, 2024.  A hearing on the motion was conducted on April 25, 2025, in Jonesboro, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as  an  associate.  The  date  for \nClaimant’s  alleged  injury  was  on February    15,    2023. He reported    his injury    to \nRespondent/Employer on the  same  day. Respondents  admitted into  the  record Respondents’ \nExhibit 1, Form AR-C and motion to dismiss, consisting of 2 pages. The Commission has admitted \n\nYOUNG, AWCC No. H403871 \n \n2 \n \ninto evidence Commission Ex. 1, correspondence, and U.S. Mail return receipts, consisting of 6 \npages, as discussed infra. \nThe  record  reflects that on June  16,  2024,  a  Form  AR-C  was  filed by Claimant’s then-\nattorney, Mark Peoples, with the Commission purporting that Claimant injured his right shoulder, \nand arm  in  a  work  incident. On June  21,  2024,  a  Form  AR-1  was  filed  with  the  Commission \npurporting that Claimant’s disability began February 15, 2023. Also on June 21, 2024, a Form AR-\n2  was  filed by  Respondents denying compensability. On  June  24,  2024,  the  Ryburn  Law  Firm \nentered  its  entry  of  appearance on  the  behalf  of  the  Respondents. Claimant’s counsel, Mark \nPeoples, filed a Motion to Withdraw on September 30, 2024. The Full Commission granted the \nmotion on October 18, 2024. \nOn December 31, 2024, Respondents’ counsel filed a Motion to Dismiss due to Claimant’s \nfailure to prosecute his claim. The Claimant was sent, on January 3, 2025, notice of the Motion to \nDismiss, via certified and regular U.S. Mail, to his last known address. The certified motion notice \nwas claimed  by  Claimant as  noted on  the January  14,  2025,  return  receipt. Nevertheless,  the \nClaimant  did not respond  to  the Motion,  in  writing,  as  required. Thus,  in  accordance  with \napplicable Arkansas law, the Claimant was mailed due and proper legal notice of Respondents’ \nMotion to Dismiss hearing date at his current address of record via the United States Postal Service \n(USPS),  First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-Class  Mail,  on \nJanuary 31, 2025. The certified notice was claimed on February 15, 2025, return receipt.  \nThe  Motion  to  Dismiss  Hearing  had  to  be  rescheduled to  April  25, 2025.    Thus,  in \naccordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice of \nRespondents’ Motion to Dismiss hearing date at his current address of record via the United States \nPostal  Service  (USPS), First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-\n\nYOUNG, AWCC No. H403871 \n \n3 \n \nClass Mail, on February 21, 2025. The certified notice was claimed on February 24, 2025, return \nreceipt.  The hearing took place on April 25, 2025. The Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the April 25, 2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith reasonable notice to the Claimant, on the Respondents’ Motion to Dismiss hearing date. The \ncertified hearing notice was claimed on February 24, 2025, per the return postal notice bearing the \n\nYOUNG, AWCC No. H403871 \n \n4 \n \nsame date. Thus, I find by the preponderance of the evidence that reasonable notice was given to \nthe Claimant.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant filed his Form AR-C on June \n16,  2024.  Since  then,  he  has  failed  to  request  a bona  fide hearing.  Therefore,  I  do  find  by  the \npreponderance of the evidence that Claimant has failed to prosecute his claim by failing to request \na hearing. Thus, Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n       ____________________________________ \n       STEVEN PORCH \n       Administrative Law Judge","textLength":6461,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H403871 TIMOTHY YOUNG, EMPLOYEE CLAIMANT DITTA ENTERPRISES, INC., EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INS. CO., INSURANCE CARRIER RESPONDENT SUMMIT CONSULTING, LLC, TPA RESPONDENT OPINION FILED JUNE 24, 2025 Hearing conducted on Friday, April 25, 2025, b...","outcome":"dismissed","outcomeKeywords":["dismissed:11","granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:40:02.354Z"},{"id":"alj-H404171-2025-06-23","awccNumber":"H404171","decisionDate":"2025-06-23","decisionYear":2025,"opinionType":"alj","claimantName":"Hunter Shelton","employerName":"Diversified, LLC","title":"SHELTON VS. DIVERSIFIED, LLC AWCC# H404171 June 23, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SHELTON_HUNTER_H404171_20250623.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHELTON_HUNTER_H404171_20250623.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404171  \n \nHUNTER SHELTON, Employee CLAIMANT \n \nDIVERSIFIED, LLC, Employer RESPONDENT \n \nTRAVELERS PROPERTY CASUALTY CO. OF AMERICA, Carrier RESPONDENT \n \n \n \n OPINION FILED JUNE 23, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant represented by LAURI THOMAS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents  represented  by JASON  M.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On June  5,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at \nSpringdale, Arkansas.   A pre-hearing conference was conducted on February 20, 2025, \nand  a pre-hearing  order  was  filed  on February  24,  2025. A  copy  of  the  Pre-hearing \nOrder  has  been  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record \nwithout objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  this \nclaim. \n 2. The employee/employer/carrier relationship existed June 21, 2024. \n\nShelton – H404171 \n \n-2- \n 3. Claimant sustained a compensable injury on June 21, 2024, and the employer \nhas now controverted the claim in its entirety. \n Prior to the hearing, the parties agreed that respondent had not controverted the \nclaim, but instead, had accepted a compensable injury to the left ankle and foot on June \n21,  2024.  The parties also  agreed  to  stipulate  that  respondent  is  continuing  to  provide \nclaimant  with  medical  treatment  and  that  claimant  would  be  entitled  to  benefits  at  the \nmaximum compensation rate. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Compensation rate. \n 2.  Whether  claimant  is  entitled  to  additional  temporary  total  disability  benefits, \nmedical benefits. \n 3. Attorney fee. \n Based upon the parties stipulations, the only issues for consideration at the time \nof  the  hearing are claimant’s  entitlement  to  temporary  total  disability  benefits  from \nNovember 12, 2024, through January 10, 2025, and a controverted attorney fee. \n The  claimant  contends “he  sustained  a  compensable  injury  while  working  for \nrespondent  on  or  about  June  21,  2024.    At  that  time,  claimant  was  in  the  course  and \nscope of his employment with respondent when the claimant jumped out of the way of a \nroll of wire and injured his left ankle and left foot upon landing.  The claimant underwent \nan  MRI  that  found  a  large  cyst  in  his  Sinus  Tarsi.    As  a  result  of  the  findings,  the \nclaimant has attended numerous sessions of physical therapy at Advanced Orthopedic \nSpecialists.    He  also  received  one  injection  of  Depo-Medrol  and  Lidocaine  to  his  left \nsubtalar  joint  with  Dr.  Hagan  at  Advanced  Orthopedic  Specialist.    Since  claimant  had \n\nShelton – H404171 \n \n-3- \nfailed  conservative  treatment  for  his  left  ankle,  Dr.  Yakin  recommended  a  left  subtalar \narthroscopy  with  debridement  and  excision  of  a  cyst,  the  procedure  took  place  on \nDecember 12, 2024.  On December 16, 2024 Dr. Yakin placed the claimant as “unable \nto return to work” with no specified date to return to work and ordered 6 additional \nweeks of physical therapy.  In a letter dated December 5, 2024 the claimant received an \nofficial  notice  that  confirmed  his  termination.    The  letter  stated  the  termination  was  a \nresult of policy violations and lists his final date of employment as November 12, 2024.  \nThe claimant’s termination came shortly after he discussed retaining representation for \nhis injury and rejecting a phone call from his employer on November 12, 2024.  On that \nday, the claimant was being treated for kidney stones and had requested paid time off \nas  advised  by his  employer.    The  claimant advised  his  employer  that  he  would  not  be \njoining  the  call.    He  also  informed  his  employer  about  his  recent  use  of  prescribed \nnarcotics and expressed his hesitation about joining the call while under the influence of \na controlled substance.  The employer terminated the claimant for retaliatory purposes \nand to avoid paying the temporary total disability for his upcoming surgery.” \n The respondents contend “this is an accepted claim, and all appropriate benefits \nhave been paid.” \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n\nShelton – H404171 \n \n-4- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  parties  stipulations  at  the  prehearing  conference  that  the  Arkansas \nWorkers’  Compensation  Commission  has  jurisdiction  of  this  claim  and  that  the \nemployee/employer/carrier relationship existed on June 21, 2024, are hereby accepted \nas fact. \n 2. The  parties  stipulation  that  claimant  suffered  a  compensable  injury  to  his  left \nankle and foot on June 21, 2024, is also hereby accepted as fact.  \n 3. The parties stipulations that respondent is continuing to provide claimant with \nmedical  treatment  at  the  time  of  the  hearing  and  that  claimant  would  be  entitled  to \ncompensation at the maximum compensation rates are also hereby accepted as fact. \n 4.  Claimant  has  met  his  burden  of  proving  by  a  preponderance  of  the  evidence \nthat  he  is  entitled  to  temporary  total  disability  benefits  beginning  December 12,  2024 \n(the date of his surgery) and continuing through January 10, 2025 (the date he returned \nto work for another employer). Respondent is entitled to a credit for any temporary total \ndisability benefits previously paid for this period of time.  \n 5. Respondent has controverted claimant’s entitlement to all unpaid temporary \ntotal disability benefits. \n \nFACTUAL BACKGROUND \n Claimant  is  a  30-year-old  man  who  worked  for  respondent  for  almost  a  year  as \nan  audio/video  instillation  technician.  His  job  duties  included  lifting  heavy  equipment, \nclimbing ladders and using lifts to get into ceiling spaces, and running wire hundreds of \nyards. Claimant suffered an admittedly compensable injury to his left ankle and foot on \n\nShelton – H404171 \n \n-5- \nJune  21,  2024.  On  that  date,  he  and  other  employees  were  running  cable  down  a \nhallway   at   Tennessee   Technical   Institute   when   someone yelled to  “Watch  out”. \nClaimant jumped out of the way and in doing so injured his left ankle and foot.  \n Claimant reported his injury and initially sought medical treatment from an urgent \ncare  facility  in  Tennessee  where  he  was  instructed  to  follow-up  with  his  primary  care \nphysician, Dr. Abernathy.  \n Claimant  testified  that  Dr.  Abernathy  believed  that  he  had  a  torn  ligament  and \nrecommended that he see a specialist. As a result, claimant came under the care of Dr. \nYakin,  orthopedic  surgeon,  who initially diagnosed claimant’s condition as a sprained \nankle  and  recommended  the  use  of  a  walker  boot  and  physical  therapy.  When \nclaimant’s condition did not improve, Dr. Yakin ordered an MRI scan which revealed a \ncyst  in  the  ankle  which  he  treated  with  a  steroid  injection.  In  a  report dated  November \n25, 2024, Dr. Yakin noted that the steroid injection had worsened claimant’s symptoms \nand  he  recommended  surgery.  Dr.  Yakin  performed  a  left  subtalar  arthroscopy with \ndebridement  and  cyst  excision  on  December  12,  2024.  Following  the  surgery,  he  also \nordered physical therapy for the claimant.  \n Claimant  has  filed  this  claim  contending  that  he  is  entitled  to  temporary  total \ndisability benefits from November 12, 2024, through January 10, 2025. \n \nADJUDICATION \n Claimant contends that he is entitled to temporary total disability benefits for his \ncompensable injury from November 12, 2024, through January 10, 2025. Claimant’s \nankle  injury  is  a  scheduled  injury.  An  employee  who  suffers  a  scheduled  injury  is \n\nShelton – H404171 \n \n-6- \nentitled  to  temporary  total  disability  benefits  during  their  healing  period  or  until  they \nreturn  to  work.  ACA §11-9-521(a); Wheeler  Construction  Company  v.  Armstrong,  73 \nArk. App. 146, 41 SW 3d 822 (2001). However, the claimant’s “failure to return to work \nmust be causally related to the injury.” Foster v. Tyson Poultry, 213 Ark. App. 172, 426 \nSW 3d 563 citing Fendley v. Pea Ridge School District, 97 Ark. App. 214, 216-17, 245 \nSW 3d 676, 677-78 (2006). \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  proven  by  a  preponderance  of  the \nevidence that he is entitled to temporary total disability benefits beginning on December \n12, 2024, the date of his surgery, and continuing through January 10, 2025, the date he \nreturned to work for another employer.  \n Claimant is requesting temporary total disability benefits beginning on November \n12, 2024, the date his employment was terminated. As the court in Foster indicated, the \nclaimant’s failure to return to work must be causally related to the injury. I do not find \nthat claimant’s failure to work beginning on November 12, 2024, is causally related to \nhis injury. Instead, his failure to return to work on November 12, 2024, is attributable to \na  non-work-related  condition; kidney  stones  and  his  decision  not  to  attend  a  Zoom \nmeeting with his employer. While claimant’s decision may have been justified given his \nkidney stones, it is not related to his work injury.  \n After  his  compensable  injury,  claimant  continued  to  work  for  respondent  as  an \naudio/video  installation technician, performing  his  regular  job  duties.  He  continued  to \nperform those job duties through his termination on November 12, 2024.  \n\nShelton – H404171 \n \n-7- \n As  previously  noted,  claimant  came  under  the  care  of  Dr.  Yakin,  orthopedic \nsurgeon,  with  his  first  visit  occurring  on  August  9,  2024,  at  which  time  Dr.  Yakin \nprescribed physical therapy and the use of a walker boot. Dr. Yakin made no mention of \nany  work  restrictions  at  that  time  and  claimant  continued  to  work  for  respondent. \nClaimant  apparently  returned  to  Dr.  Yakin  on  November  6,  2024,  and  later  that  same \nday,  he  went  to  Northwest  Medical  Center  emergency  room  for  complaints  of  kidney \nstones.  Neither  of  these  medical  records  are  in  evidence.  There  is  a  note  from  the \nemergency room taking claimant off work for one day for the kidney stones.  \n Claimant  testified  that  after  November  6  he  decided  to  take  PTO  leave  and \ncontacted his supervisor and attempted to complete an online request but there was an \nerror on the website and his PTO did not go through. There was some discussion at the \nhearing regarding this request and whether claimant had followed proper procedures for \napproval.  However,  for  reasons  to  be  discussed,  the  claimant’s  failure  to  continue \nworking  for  respondent  after  November  12,  2024, are not  related  to  his  compensable \ninjury.  \n Claimant also testified that the medical report given to him at Dr. Yakin’s office \nafter  his  visit  on  November  6  did  not  accurately  reflect  limitations  given  to  him  by  Dr. \nYakin.  Claimant  contacted  Dr.  Yakin’s  office  and  on  November  8,  2024,  Dr.  Yakin \nindicated:  \nThe  injured  worker  may  return  to  work  so  long  as  the \nfollowing  functional  limitations  or  restrictions  as  listed  below \nare adhered to. \n \n- No climbing \n- No walking more than 100 yards \n \n\nShelton – H404171 \n \n-8- \n Based  on  his  PTO  request,  claimant  did  not  return  to  work  or  even  attempt  to \nreturn to work within the limitations given to him by Dr. Yakin. November 8 was a Friday \nand claimant was scheduled off work on Saturday, Sunday, and Monday (Veteran’s \nDay).  On  Tuesday,  claimant  was  asked  to  attend  a  Zoom  meeting.  Claimant  testified \nthat  he  had  suffered  from  another  kidney  stone  and  was  taking  hydrocodone  so  he \nrequested  that the meeting be  rescheduled, but  respondent  refused.  Claimant  testified \nthat  he  did  not  feel  comfortable  participating  in  a  meeting  while  taking  hydrocodone. \nBased on claimant’s refusal to participate in the Zoom meeting, his employment was \nterminated by respondent effective on November 12, 2024. \n Although  claimant  had  been  given  restrictions,  Dr.  Yakin  had  indicated  that \nclaimant  could  return  to  work  within  those  restrictions.  Attending  the  Zoom  meeting \nwould have fallen within those restrictions. Claimant’s decision to not attend the meeting \nand  his  subsequent  termination  was  related  his  kidney  stone  and  medication,  not  his \nankle injury.  \nQ And  when  the  time  came  to  do  that  light-duty  work, \nyou did not participate? You did not show up? \n \nA Unfortunately, I had a kidney stone, which you can’t \never  know  when  a  medical  emergency  is  going  to  happen, \nbut that is why PTO is there. \n \nQ Okay.  \n \nA So  I  followed  the  handbook  by  letting  my  supervisor \nknow  I  couldn’t  show  up  to  the  meeting  and  explained  it \nwasn’t for recreational. It was for a medical emergency. It \nwasn’t  just  because  I  didn’t  want  to  work.  It’s  because  I \ncouldn’t function at the meeting. I don’t think anyone would \nrequire a worker to go to any meeting on any medication. \n \n\nShelton – H404171 \n \n-9- \n Regardless of whether one thinks claimant’s refusal to attend the Zoom meeting \nwas justified, given his kidney stones and his taking hydrocodone, the law requires that \nthe  failure  to  return  to  work  be  related  to  the  compensable  injury.  Under  these \ncircumstances, I find that claimant’s failure to return to work and his termination by \nrespondent was not related to his compensable injury, but rather to a non-work-related \ncondition.  Therefore,  I  do  not  find  that  claimant  is  entitled  to  temporary  total  disability \nbeginning on November 12, 2024.  \n I do find that claimant is entitled to temporary total disability benefits beginning on \nDecember 12, 2024, the date of his surgery, and continuing through January 10, 2025, \nthe  date  he  returned  to  work  for  another  employer.  Dr.  Yakin  performed  surgery  on \nclaimant’s  left  ankle  on  December  12,  2024.  On  December  16,  2024,  Dr.  Yakin \nindicated in a report that claimant was unable to return to work until further “specified”. \nOn December 23, 2024, Dr. Yakin indicated that claimant could return to work at a sit-\ndown  job  once  he  was  no  longer  taking  narcotic  pain  medication.  As  noted,  claimant \nreturned to work on January 10, 2025, for another employer.  \n Based  on the foregoing,  I  find  that  claimant has met his  burden of  proving by  a \npreponderance  of  the  evidence  that  he  is  entitled  to  temporary  total  disability  benefits \nbeginning December 12, 2024, and continuing through January 10, 2025. At one point \nin  the  hearing,  Attorney  Ryburn  indicated  that  respondent  had  paid  claimant  some \ntemporary  total  disability  benefits  beginning  on  the  date  of  the  surgery.  Respondent  is \nentitled to a credit for any temporary total disability benefits previously paid. \n \n \n\nShelton – H404171 \n \n-10- \nAWARD/ORDER \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe  is  entitled  to  temporary  total  disability  benefits  beginning  December  12,  2024,  and \ncontinuing  through  January  10,  2025.  Respondent  is  entitled  to  a  credit  for  any \ntemporary total disability benefits previously paid during this period of time. Respondent \nhas controverted claimant’s entitlement to any unpaid temporary total disability benefits. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B),  claimant’s  attorney  is  entitled  to  an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.   Also pursuant to A.C.A. §11-9-715(a)(1)(B), an attorney fee is not \nawarded on medical benefits. \nAll  sums herein  accrued are payable  in a  lump  sum and  without  discount.   This \naward shall bear interest at the maximum legal rate until paid. \nRespondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $547.50. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":17184,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404171 HUNTER SHELTON, Employee CLAIMANT DIVERSIFIED, LLC, Employer RESPONDENT TRAVELERS PROPERTY CASUALTY CO. OF AMERICA, Carrier RESPONDENT OPINION FILED JUNE 23, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington Cou...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:39:58.112Z"},{"id":"full_commission-H405400-2025-06-20","awccNumber":"H405400","decisionDate":"2025-06-20","decisionYear":2025,"opinionType":"full_commission","claimantName":"Jeffrey Martinez","employerName":"1st Employment Staffing","title":"MARTINEZ VS. 1ST EMPLOYMENT STAFFING AWCC# H405400 June 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Martinez_Jeffrey_H405400_20250620.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Martinez_Jeffrey_H405400_20250620.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H405400 \n \nJEFFREY MARTINEZ,  \nEMPLOYEE    CLAIMANT \n \n1\nST\n EMPLOYMENT STAFFING,  \nEMPLOYER                                                                           RESPONDENT \n \nZURICH AMERICAN INSURANCE  \nCOMPANY, CARRIER /GALLAGHER BASSETT  \nSERVICES, INC., TPA                                                           RESPONDENT \n \nOPINION FILED JUNE 20, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE RICK BEHRING JR., \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed January 29, 2025. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at a pre-\nhearing conference conducted on October 9, 2024 and \ncontained in a pre-hearing order filed that same date \nare hereby accepted as fact.  \n \n2. Claimant has failed to prove by a preponderance of the \nevidence that he suffered a compensable injury to his \n\nMartinez-H405400  2 \n \n \nright wrist and hand on August 6, 2024. Specifically, \nclaimant failed to rebut the statutory presumption that \nhis injury was substantially occasioned by the use of \nillegal drugs (marijuana). \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the January 29, 2025 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents.  \nDISSENTING OPINION  \nThe Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant failed to prove by a preponderance of the evidence that he \n\nMartinez-H405400  3 \n \n \nsuffered a compensable injury to his right wrist and hand on August 6, 2024. \nSpecifically, the ALJ, found that the Claimant failed to rebut the statutory \npresumption that his injury was substantially occasioned by the use of illegal \ndrugs (marijuana). I disagree and would reverse the decision by the ALJ, and \nfind that the statutory presumption was not triggered, and that the Claimant \nproved he sustained compensable injuries to his right hand and wrist.  \nTo establish a compensable injury by a preponderance of the evidence \nthe Claimant must prove: (1) an injury arising out of and in the course of \nemployment; (2) that the injury caused internal or external harm to the body \nwhich required medical services or resulted in disability or death; (3) medical \nevidence supported by objective findings, as defined in Ark. Code Ann. §11-\n9-102(16), establishing the injury; and (4) that the injury was caused by a \nspecific and identifiable time and place of occurrence. A compensable injury \nmust be established by medical evidence supported by objective findings and \nmedical opinions addressing compensability must be stated within a degree \nof medical certainty. Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d \n560 (2002). Further Arkansas Code Annotated § 11-9-102(4)(B)(iv) states \nthat a compensable injury does not include:  \n(a) Injury where the accident was substantially occasioned by \nthe use of [...] illegal drugs[.] \n(b) The  presence  of  [...],  illegal  drugs,  [...]  shall  create  a \nrebuttable  presumption  that  the  injury  or  accident  was \nsubstantially occasioned by the use of [...] illegal drugs[.]  \n\nMartinez-H405400  4 \n \n \nThe process to determine whether an accident was substantially occasioned \nby the use of illegal drugs is outlined by Arkansas Code Annotated § 11-9-\n102(4)(B)(iv)(c):  \n(c) Every employee is deemed by his or her performance of \nservices  to  have  impliedly  consented  to  reasonable  and \nresponsible  testing  by  properly  trained  medical  or  law \nenforcement  personnel  for  the  presence  of  any  of  the \naforementioned substances in the employee’s body.  \n \nThe  Claimant  was  hired  by  Respondent  on  July  30,  2024,  as  a \ntemporary employee and was assigned to work as a drill press operator for \nHickory  Springs  Manufacturing,  one  of  Respondent’s  industrial  clients. \nRespondent’s operations manager, Mashayla Martin, testified that some of \nthe safety training provided to the Claimant for his job included a generic \nvideo. On cross-examination, Martin states:  \nQ: Okay. So the safety video that you say he watched, what did \nthe safety video cover?  \nA: It covered various safety things. It is a 30-minue long video \nand then they take a short 10-question test after.  \nQ: Okay. And is that a generic video that works for all of your \nplaces?  \nA: Uh-huh.  \n... \nQ:  And  do  you  have  the  results  of  Jeffrey’s  safety  test \nsomewhere?  \nA: Yes.  \nQ: Are those not in his personnel file?  \nA: They are.  \nQ: What would they be under?  \nA: Safety test results. \nQ: Okay. Did you give those safety test results to Mr. Behring?  \nA: No, but we can.  \n\nMartinez-H405400  5 \n \n \nQ: Well, I had requested the entire personnel file, so if that is in \nthe personnel file, what else is in the personnel file that you did \nnot give to Mr. Behring?  \nA:  I  am  not  sure.  That  would  have  went  through  our  HR \nDepartment. \nClaimant was trained on the drill press by Genoveva “Eva” Martinez. Eva \nMartinez testified that she had not trained anyone as a drill press operator \nbefore  training  the  Claimant.  Eva  Martinez  further  testified  that  she  and \nClaimant worked together for about two days, and on the third day she \nreleased Claimant to work on the drill press alone. On August 6, 2024, six \ndays after Claimant began working for Respondent and three days after \nbeing  released  by  Respondent  employee  Eva  Martinez,  Claimant  was \ninjured. As the Claimant was operating the drill press his work glove became \ncaught in the machine, mangling his hand. Claimant was taken to the hospital \nand diagnosed with finger fractures and dorsal wrist injury. This required an \nurgent surgical procedure that included revision amputation of his little finger.  \n As the Claimant was being taken from the scene of the accident by \nEMS, plant manager Justin McCutchen allegedly found a vape pen laying on \nthe floor underneath the Claimant. McCutchen further testified that he carried \nthe vape pen around for a couple of hours and then gave it to Respondent’s \nHR Department. Mashayla Martin testified as follows regarding the vape pen:  \n Q: And what did you do with the vape pen after that?  \nA: I held onto it until OSHA had came to my office and when he \nhad saw it and smelt it, he told me that I needed to give it to the \npolice, so I had the police come then and take it.  \n\nMartinez-H405400  6 \n \n \n ... \nQ: After handing over the vape pen, have you had anything to \ndo with the vape pen since then?  \n A: No.  \nThere is nothing further in the record as to whether the vape pen was \ntested by the police for the presence of marijuana. It appears that Martin’s \nduties included determining whether a drug screen is appropriate for injured \nemployees and she provided the following testimony:  \nQ: Following that, did you decide that a post-accident drug \nscreen was necessary?  \n A: Yes.  \n Q: All right. So what did you do? \nA: I called the hospital because we have to have it done within \n24 hours of the incident and the hospital declined to do it for \nme. \nQ: Anytime you have an accident, do you guys administer a \ndrug test?  \nA: Yes.  \nQ: Okay. And so what happened after they declined – when the \nhospital declined to do a drug test?  \nA: I reached out to his family to see if I could come up and see \nthem. He was in surgery, so I spent a little bit of time with his \nsister and mother. I brought them dinner. And then the next \nmorning I reached out to Jeffrey and he said that the surgery \nwent well, so I asked him if I could get a statement from him \nand a drug screen and he agreed.  \nQ: Okay. When did you actually come see Mr. Martinez at the \nhospital?  \nA: It was the very next day on the 7\nth\n.  \nQ: And tell me what happened when you got there.  \nA: When I walked in, he had urine in a urinal and he said he we \ncould use that for the drug test, but I told him it would have to \nbe a clean catch and I actually poured that urine out myself. \nAnd then he said he didn’t have to go and I said, “That’s okay \nbecause we still have your statement to write.” So then I asked \nhim to walk me through the steps of what happened and I typed \nit up. \n\nMartinez-H405400  7 \n \n \n... \nQ: Okay. And then what happened after that?  \nA: When he was ready to urinate, he peed in the cup in his bed \nand I stood by the door with my back towards him for some \nprivacy. \nQ: Okay. And what happened after that?  \nA: I scanned it with our tablet that reads whether it is negative \nor positive and it came back presumptively positive. So we \nsealed it and he initialed and dated the seal on it and I put in a \nFedEx envelope and then I left the hospital and that was it.  \nThis drug test was positive of marijuana metabolite.  \nThe Claimant clearly suffered an injury to his hand as a result of his \nemployment  with  the  Respondent.  At  issue  is  whether  the  injury  is \ncompensable, or whether it falls outside the scope of compensability in that \nit was substantially occasioned by the use of illegal drugs. Ark. Code Ann. § \n11-9-102(4)(B)(iv) states that a compensable injury does not include “injury \nwhere the accident was substantially occasioned by the use of [...] illegal \ndrugs.”  The  presence  of  illegal  drugs  potentially  creates  a  rebuttable \npresumption that the injury or accident was substantially occasioned by the \nuse of illegal drugs. Ark. Code Ann. § 11-9-102(4)(B)(iv)(b). “Substantially \noccasioned” requires that there be a direct causal link between the use of \nillegal drugs and the injury in order for the injury to be considered non-\ncompensable. ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 71, \n977 S.W.2d 212, 216 (1998).  \nInitially, I find that the rebuttable presumption identified by Arkansas \nCode Annotated § 11-9-102(4)(B)(iv)(b) was not triggered by the facts of this \n\nMartinez-H405400  8 \n \n \ncase. The decision of the ALJ was based almost exclusively on the admission \nof a drug screen which identified a marijuana metabolite in the Claimant’s \nurine. For reasons stated below I find that these test results were improperly \nadmitted  into evidence. The  Commission has  broad  discretion as  to  the \nadmission of evidence, and its decision will not be reversed absent a showing \nof an abuse of discretion. Tenner v. Aerocare Holdings, Inc., 2007 Ark. App. \nLEXIS 670 (2007). There are several irregularities in the process which raise \nconcerns regarding the validity of the test results. First, the statutes relating \nto the triggering of the rebuttable presumption must be strictly construed. \nArkansas Code Annotated §11-9-704(c)(3) Further, an employee is deemed \nto have consented to be tested for the presence of illegal substances by only \n“properly trained medical or law enforcement personnel.” Arkansas Code \nAnnotated  §  11-9-102(4)(B)(iv)(c).  Here,  the  operations  manager  for  the \nRespondent testified that she went to the hospital where the Claimant was \nbeing treated and personally collected a urine sample from him. There is no \nevidence in the record that she was properly trained to conduct the procedure \nor  that  she  fell  within  the  parameters  established  by  Arkansas  Code \nAnnotated § 11-9-102(4)(B)(iv)(c). Additionally, the evidence in the record \nshows that the urine sample was collected approximately 24 hours after the \nClaimant’s work accident after the Claimant received surgical treatment and \nmedications  made  necessary  by such  treatment.  Based  upon  these \n\nMartinez-H405400  9 \n \n \nirregularities, I find that the statutory presumption identified in Arkansas Code \nAnnotated § 11-9-102(4)(B)(iv)(b) was not created.  \n Further,  there  is  ample  testimony  in  the  record  as  to  Claimant’s \nbehavior before and after the accident which I find to be sufficient to meet his \nburden of proof that his accident did not result from the use of illegal drugs \nor alcohol. Claimant’s mother, Mayra Figueroa testified that she spoke to the \nClaimant prior to him leaving for work and that his behavior was normal. \nRespondent  witness,  Eva  Quintanilla  testified  that  Claimant’s  work  was \nsatisfactory on the morning of the work accident. After the work accident, \nEMS found that the Claimant was alert and oriented to the person, place and \nevent. The triage nurse at the hospital found that the Claimant was alert. The \nemergency room physician on duty, Dr. Kaleb Smithson, also found that the \nClaimant was alert and oriented to person, place, and time. There is not \nsufficient, credible evidence in the record to support the conclusion that the \nwork accident in this case was substantially occasioned by the use of illegal \ndrugs. On the other hand, there is substantial credible proof that the Claimant \nwas not impaired based upon the witness testimony, and the medical records. \nMoreover, the Claimant’s training for his job as a drill press operator at the \ntime  of  his accident was  inadequate  and  I  find  that  this  lack  of  training \nprovides a more reasonable explanation for the Claimant’s work accident.  \n\nMartinez-H405400  10 \n \n \nTherefore, I find that the Claimant has met his burden of proof to show \nhe sustained compensable injuries to his right wrist and hand, and that those \ninjuries were not substantially occasioned by the use of illegal drugs.   \n For the reasons stated above, I respectfully dissent.  \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":14595,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H405400 JEFFREY MARTINEZ, EMPLOYEE CLAIMANT 1 ST EMPLOYMENT STAFFING, EMPLOYER RESPONDENT ZURICH AMERICAN INSURANCE COMPANY, CARRIER /GALLAGHER BASSETT SERVICES, INC., TPA RESPONDENT","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["wrist","back"],"fetchedAt":"2026-05-19T22:29:44.246Z"},{"id":"alj-H208573-2025-06-20","awccNumber":"H208573","decisionDate":"2025-06-20","decisionYear":2025,"opinionType":"alj","claimantName":"Donna Jackson","employerName":"Stagehands LLC","title":"JACKSON VS. STAGEHANDS LLC AWCC# H208573 June 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Jackson_Donna_H208573_20250620.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jackson_Donna_H208573_20250620.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208573 \n \n \nDONNA JACKSON, EMPLOYEE CLAIMANT \n \nSTAGEHANDS LLC, \n EMPLOYER RESPONDENT \n \nOHIO SECURITY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JUNE 20, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on June  19,  2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents represented  by  Mr. Jason  M.  Ryburn,  Ryburn  Law  Firm, Attorneys \nat Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on June 19, 2025, in Little \nRock, Arkansas.  The testimony of Claimant was taken in the case.  Admitted into \nevidence were Commission Exhibit 1 (see Ark. Code Ann. § 11-9-705(a)(1) (Repl. \n2012)(Commission  must  “conduct  the  hearing  .  .  .  in  a  manner  which  best \nascertains the rights of the parties”) and Respondents’ Exhibit 1, forms, pleadings, \nand correspondence related to this claim, consisting of 31 pages; and Claimant’s \nExhibit 1, medical records, consisting of 17 pages. \n\nJACKSON – H208573 \n \n2 \n \n The record shows the following procedural history: \n Per the First Report of Injury or Illness filed on December 9, 2022, Claimant \npurportedly  suffered a  shoulder injury at  work  on November 25, 2022,  when she \nwas struck by a metal pole that was being handled by a co-worker.  According to \nthe amended Forms AR-2  that  were filed  on December  15,  2022, January  25, \n2023,  and  August  29,  2023, Respondents accepted  the  claim as compensable \nand paid medical and indemnity benefits pursuant thereto. \n On December  21,  2022, through  then-counsel  Laura  Beth  York, Claimant \nfiled  a  Form  AR-C.    Therein, Claimant requested  the  full  range  of  initial  and \nadditional  benefits  and alleged  that  she  suffered  “injuries  to  her  left  shoulder, \nback,  and  other  whole  body”  on  the  date  in  question.   No  hearing  request \naccompanied this filing. \n On  March  27,  2023,  York  moved  to  withdraw  from  her  representation  of \nClaimant.  In an Order entered on April 7, 2023, the Full Commission granted the \nmotion under AWCC Advisory 2003-2. \n Claimant, now pro se, filed another Form AR-C on July 10, 2023.  Therein, \nshe stated that her back and shoulder were injured at Robinson Auditorium when \na co-worker dropped a two-foot length of pipe from 100 feet above in “retileation” \n[sic].    Per  an  order  entered on  October  28, 2024,  the  Medical  Cost  Containment \nDivision of the Commission granted Claimant’s request for a one-time  change  of \nphysician  to  Dr.  Nicole  Rinewalt,  and  scheduled  an  appointment  for  her  with  the \n\nJACKSON – H208573 \n \n3 \n \nphysician  for  November  13,  2024.    The  next  day,  November  14,  2024,  the \nCommission  received  written  correspondence  from  Claimant  that  reads:  “I am \nrequesting a hearing to get Medical bill and Los[t] wages paid for the anxi[e]ty and \nPTSD that has incur[r]ed since injury.” \n Due  to  the  failure  to  set  up a  legal advisor  conference  and/or  a  mediation \nconference,  the  Legal  Advisory  Division  asked  the  Clerk  of  the  Commission  to \nreassign  the  file  to  the  Adjudication  Division.    The  file  was  assigned  to  me  on \nJanuary 8, 2025; and on January 14, 2025, my office sent preliminary notices and \nprehearing questionnaires to the parties.  Claimant filed her Preliminary Notice on \nJanuary 27, 2025.  Therein, she represented that while the value of her claim was \nin  excess  of  $2,500.00,  she  was  amenable  to  mediation.    She  also  furnished  a \nsigned  medical  release.    Respondents’  counsel  entered  his  appearance  on \nFebruary  14,  2025.    Through  his  client’s  Preliminary  Notice,  counsel  likewise \nagreed  to  voluntary  mediation.    As  a  result,  on  February  20,  2025,  the  file  was \ntransferred   back   to   the   Legal   Advisory   Division   to   conduct   the   mediation.  \nHowever,   on   February   28,   2025,   the   mediatory   returned   the   file   to   the \nCommission’s general files because of the parties’ unwillingness to mediate or \nlitigate the claim at that time. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until April \n22, 2025.  On that date, Respondents filed the instant motion, asking for dismissal \nof the claim under AWCC R. 099.13 because Claimant had not been prosecuting \n\nJACKSON – H208573 \n \n4 \n \nher claim.   The  file  was  reassigned  to me  that  same day; and also  on  that  date, \nmy office wrote Claimant, asking for a response to the motion within 20 days.  The \nletter was sent by first class and certified mail to the Little Rock, Arkansas address \nfor Claimant  that was listed in the file and on her Forms AR-C.  A “John Jackson” \nsigned  for  the  certified  letter  on  April  26,  2025;  and  the  first-class  letter  was  not \nreturned.  Regardless, no response to the motion was forthcoming from Claimant.  \nOn May 14, 2025, a hearing on the Motion to Dismiss was scheduled for June 19, \n2025, at 9:30 a.m. at the Commission in Little Rock.  The Notice of Hearing was \nsent to Claimant by certified and first-class mail to the same address as before.  In \nthis instance, the certified mailing was returned to the Commission, unclaimed, on \nJune 12, 2025.  But once again, the first-class mailing was not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.   Both \nparties appeared at  the  hearing pursuant to the  Notice  of  Hearing,  and  Claimant \ngave   testimony.      Respondents appeared   through   counsel   and   argued   for \ndismissal under the foregoing authority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nJACKSON – H208573 \n \n5 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n3. Respondents  have not proven  by  a preponderance  of the  evidence \nthat  Claimant  has  failed  to  prosecute  this  claim under AWCC  R. \n099.13. \n4. The Motion to Dismiss is hereby denied. \n5. Claimant has requested a hearing on the issue of her entitlement to \ninitial and additional benefits. \n6. This claim will proceed to a hearing on the merits. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \n\nJACKSON – H208573 \n \n6 \n \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n A claimant’s testimony is never considered uncontroverted.  Nix  v. Wilson \nWorld  Hotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting  evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n Claimant testified that the reason that she had not renewed her request for \na  hearing  on  her  claim  after the  mediation  was  cancelled was  that (1)  she  was \nseeking counsel; (2) she understood from the Legal Advisor whom she consulted \nthat there was nothing more for her to do at this point; (3) and she “was doing \nwell” and (4) she suffers from anxiety.  Claimant requested a hearing on her claim, \nin the event that it is not dismissed. \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  motion  to  dismiss  hearing \n\nJACKSON – H208573 \n \n7 \n \nunder Rule 13, she has not yet abridged that rule.  The Motion to Dismiss is thus \ndenied. \n Prehearing  questionnaires  will  be  immediately  issued  to  the  parties;  and \nthis claim will proceed to a full hearing on the merits. \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby respectfully denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":9449,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208573 DONNA JACKSON, EMPLOYEE CLAIMANT STAGEHANDS LLC, EMPLOYER RESPONDENT OHIO SECURITY INS. CO., CARRIER RESPONDENT OPINION FILED JUNE 20, 2025 Hearing before Administrative Law Judge O. Milton Fine II on June 19, 2025, in Little Rock, Pulaski County, Ark...","outcome":"dismissed","outcomeKeywords":["dismissed:7","denied:3"],"injuryKeywords":["shoulder","back"],"fetchedAt":"2026-05-19T22:39:51.456Z"},{"id":"alj-H402154-2025-06-20","awccNumber":"H402154","decisionDate":"2025-06-20","decisionYear":2025,"opinionType":"alj","claimantName":"Mabel Ijimakinde","employerName":"Compass Group USA Inc","title":"IJIMAKINDE VS. COMPASS GROUP USA INC. AWCC# H402154 June 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/IJIMAKINDE_MABEL_H402154_20250620.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"IJIMAKINDE_MABEL_H402154_20250620.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H402154 \n \nMABEL A. IJIMAKINDE, EMPLOYEE   CLAIMANT \n \nCOMPASS GROUP USA INC., EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED JUNE 20, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents are represented by RICK BEHRING JR., Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  October 1, 2024, claimant filed Form AR-C, alleging a compensable injury on March 26, \n2024.   Claimant was not represented by an attorney when the AR-C was filed, and is still pro se.   \nOn January 6, 2025, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed her Form AR-C with the Commission, but she had not made a request \nfor a hearing in that time.   A hearing on respondent’s Motion to Dismiss was scheduled for May 29, \n2025.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice was delivered to claimant on May 1, 2025.    Claimant did not \nrespond to respondent’s motion and did not appear in person at the hearing on May 29, 2025.  \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \n\nIJIMAKINDE-H402154 \n \n2 \n \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2064,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402154 MABEL A. IJIMAKINDE, EMPLOYEE CLAIMANT COMPASS GROUP USA INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED JUNE 20, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Spr...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:39:53.593Z"},{"id":"alj-H404478-2025-06-20","awccNumber":"H404478","decisionDate":"2025-06-20","decisionYear":2025,"opinionType":"alj","claimantName":"Marilynn Vandever","employerName":"Homebound Medical","title":"VANDEVER VS. HOMEBOUND MEDICAL AWCC# H404478 June 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/VANDEVER_MARILYNN_H404478_20250620.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"VANDEVER_MARILYNN_H404478_20250620.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H404478 \n \nMARILYNN G. VANDEVER, EMPLOYEE CLAIMANT \n \nHOMEBOUND MEDICAL, EMPLOYER RESPONDENT \n \nSUMMIT CONSULTING LLC, CARRIER/TPA RESPONDENT \n \n OPINION FILED JUNE 20, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by ZACHARY F. RYBURN, Attorney, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On March 15, 2025, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA  pre-hearing conference  was  conducted  on February  24,  2025, before  Judge  Kennedy, and  a  pre-\nhearing order was filed on that same date. After the entry of that order, this matter was transferred to \nthe Springdale Division of the Arkansas Workers’ Compensation Commission and assigned to this \njudge. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made a part \nof the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1  The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2 The employee/employer/carrier relationship existed on are about June 12, 2024. \n3   The parties will be required to stipulate to the applicable TTD/PPD rates or submitting \nbriefs relative to any conflicting contentions concerning the average weekly wage, seven days prior to \nthe hearing.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \n\nVandever-H404478 \n2 \n \n \nwere limited to the following: \n1 Compensability of an injury to the low back. \n2 Medical treatment in regard to the low back injury. \n3 Temporary total disability benefits from June 12, 2024, to a date to be determined.  \n4 Attorney’s fees \n5 All other issues are reserved.  \n At the hearing, claimant announced she wished to reserve issues #3 and 4, and the matter \nwas tried on the issues of whether claimant suffered a compensable injury to her low back and if so, \nif she was entitled to medical treatment for that injury.  \nAs  modified,  the  claimant  contends  that “She injured  her  low  back  while  working  and  is \nentitled to medical treatment. The claimant reserves all other issues.” \nAs  modified,  the respondents contend that “This  claim  is  denied. There  are  no  objective \nfindings to substantiate the alleged injury. The claimant was not injured at work.”   \n           From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe  her  demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on \nFebruary 24, 2025, and contained in a pre-hearing order filed on that same date are hereby accepted \nas fact. \n 2.   Claimant has failed to prove by a preponderance of the evidence that she suffered a \ncompensable low back injury on June 13, 2024. \n\nVandever-H404478 \n3 \n \n \nHEARING TESTIMONY \n \n Claimant  was  the  only  witness  to  testify. She stated that  on  June  12,  2024,  she  worked  for \nrespondent Homebound Medical as a private duty nurse taking care of a 5-year-old girl. The client \nweighed  between  fifty  and  fifty-five  pounds,  and  required  total  care  which  included  dressing  her, \ngiving her a bath in the bed, taking her from the bed to put her in her chair, and then administering \nrespiratory treatments. Claimant’s shift was ordinarily from 9:00 a.m. to 7:00 p.m. She testified that on \nJune 12, 2024, she twisted her upper torso while getting the child out of bed and had a sharp pain in \nher lower back and buttocks. After resting for a few moments, she got the client into the chair and \ndid  the  necessary  breathing  treatments. That  night  claimant  sent  an  e-mail to  her  employer,  not  to \nmake a workers’ compensation report but to have the matter on record if she did not get better. The \nfew  days  after  the  alleged  incident,  claimant  said  she  was  getting  progressively  worse  and  at  some \npoint, asked  respondent Homebound Medical to  send her  to  a  doctor. She believes  that  happened \nwithin two to four days after the incident she described. She related a conversation that she had with \na supervisor identified only as Gayla in which claimant requested to see a doctor and was asked what \npain medications she was taking. When claimant said that she took Hydrocodone to treat fibromyalgia \nand osteoporosis. Claimant testified that Gayla said, “If you want to file, go ahead and file, but I am \ngoing to turn you into the board of nursing if you do for taking drugs.”  Claimant  stated that \nrespondent Homebound Medical knew that she had this prescription when she was hired, but upon \nhearing  this,  claimant  said  she  panicked and  told Gayla to forget it and did not file a workers’ \ncompensation claim. Claimant denied taking Hydrocodone during the day while she was working as a \nnurse. \n Claimant  said  she  sought  legal  services  when  she  was  not  improving. She did  not use  her \npersonal insurance because she did not think it was legal to use that on a workers’ compensation case. \n\nVandever-H404478 \n4 \n \n \nOnce the claim was filed, the respondent’s carrier sent claimant to MedExpress for an evaluation. \nHowever, when claimant was referred to an orthopedic doctor, she said the carrier told her to go for \nsuch a visit, but she could not get in. She eventually went to the West Washington County Clinic where \nshe  received  an  MRI  on  her  back  and  neck  as  well  as  some  physical  therapy. Dr.  Brent  Weilert \nadministered an injection in the SI joint. She said that she received some relief from that treatment as \nwell  as  physical  therapy  but  as  of  the  hearing,  she  testified  that  she  has  to  be  careful  and  limit  her \nactivities. She still has an occasional pain in her buttocks and does not believe that she could do the \nlifting that was required to perform her duties as a nurse. Claimant testified that she had not been able \nto go back to work, although at one point it was discussed with Gayla that she could review charts \nfrom home.  \n Claimant said that prior to the incident she described, she had not had any low back pain like \nwhat  she  is  now  suffering. It  differed  from  the  fibromyalgia  in  that  the  pain  following  the  lifting \nincident was like an electrical shock pain stemming from her back to her knee on her left side. She \ntestified that she took hydrocodone at night as well as during the night or early morning hours if she \nwoke up and needed it. If she stayed busy, her muscles did not hurt as much as when she was idle. \n Claimant concluded her direct testimony by referring to an e-mail (Cl. NMX 1), in which she \nasked for a lift to get the child out of bed. \n On cross-examination, respondent pointed out that claimant listed fifty-three active medical \nproblems for which she was treating before this incident. Among other conditions, claimant had been \ntreated  for  anxiety,  arthralgias  of  both  hands, osteoarthritis,  bursitis  in  her  hips,  leg  cramps,  and \nfibromyalgia before June 12, 2024. She said that the treatment for cervical radiculopathy and chronic \nlow  back  pain  began  after  the  lifting  incident\n1\n. Claimant said  prior  to  June  12,  2024, she  had been \n \n1\n As set forth in the issues to be tried, claimant did not seek any benefits for a cervical injury in this hearing. \n\nVandever-H404478 \n5 \n \n \ntreated by her rheumatologist for right hip and left hip.  \n Regarding reporting the injury, claimant acknowledged that she sent an e-mail on the night of \nJune 12, 2024, at which time she thought that she had more than a strained muscle. She was provided \nworkers’  compensation  paperwork  on  the  morning  of  June  13,  2024,  to  begin a  workers’ \ncompensation claim. However, she e-mailed the respondent Homebound Medical to state that she did \nnot want to file a workers’ compensation claim. Claimant testified: \n“I thought I just had a strained muscle, and I think that is what I sent is, ‘I \ntalked to Gayla. I don’t want to file’ that was after Gayla threatened the board \nof nursing. ‘I don’t want to file now. Just talked to Gayla.’  She coerced me \nand threatened me not to file a workers’ compensation claim so I didn’t.”  \n (TR.25) \n \nClaimant was read a portion of the e-mail she sent to Gayla:   \n“I sent an injury report this morning and I think it was misunderstood. I got a \nmessage from workers’ comp, and I was surprised, as I didn’t mean I wanted \nto file a claim. I appreciate the concern, but I'm sure I have just pulled a muscle. \nI don't want to file a claim. I just needed to let you all know I couldn't work \ntoday  and  why.  Please  retract  the  report  to  summit  because  I  don't  need \nmedical attention. I'm off until next Friday, so between now and then I'm sure \nI'll be back to normal period I'm sorry for the misunderstanding.”  \n(Cl. NMX. 6)  \n \n She was then asked: \nQuestion  (By  Mr.  Ryburn)  But  are  you  saying  this  e-mail  was  done  under \nthreat or coercement; is that correct? \n \nAnswer (By claimant) No sir that’s not what I said. \n \nQ. Okay so you meant to retract your claim and not make a claim on June 13, \n2024. \n \nA. Yes because that was – I was just filing a report of injury. I wanted it on \nrecord in case I didn’t get better. It’s to cover me and to cover them. \n \n       Claimant said on June 21, 2024, that she was offered a night shift job in a different home but \n\nVandever-H404478 \n6 \n \n \ncould not take that because she has to care for her husband at night. On July 9, claimant sent a text \nmessage stating that she could not come back to work because of her injury that read as follows:  \n“I am sorry I haven’t contacted you both. I am not able to stand very long, \nnor can I get up without help at times. I am some better, though. I am trying \nto recover on my own. This is just hard to do. I have had more improvement \nthis week than any other week since my injury.” \n \n Claimant explained that when she was offered a night job, she reminded her employer that \nwhen she was hired, she was not available for such work. \n Claimant  acknowledged  that  she  received  treatment  for  pain  in  her  left  and  right  hip  on \nFebruary 21, 2024. Claimant was first referred to an orthopedic doctor for low back pain, left hip \npain, bilateral left butt/hip pain. The orthopedic doctor’s office told her that she needed to go to a \nneurologist. She had an x-ray on her hips and lower back which showed mild degenerative disc disease \nof the lumbar spine with no acute findings. Claimant testified that she had an MRI on December 30, \n2024, and understood that the findings were that there were no acute paraspinal abnormalities seen. \nClaimant said that she believed Dr. Brent Weilert made an objective medical finding as to her injury \non June 12, 2024, because he would not have injected her as he did if she didn’t have something \nwrong with her back. \n Claimant was asked about a discrepancy in her initial evaluation at Star Physical Therapy on \nJanuary 2, 2025, which listed the date the condition began as June 6, 2024, and stated that it was not \na  work-related  injury. Regarding Claimant’s Medical Exhibit pages 32 and 33, claimant had the \nfollowing exchange with the Court: \nQuestion. (The Court) She definitely says on page 32 that she was lifting and \ntransferring a patient, but on 33 it says the condition began six days earlier and \nwasn’t a work-related injury and she said no, according to this, so I would like \nto hear her explanation. \n \nAnswer. (By claimant) You are asking about is this is a work-related injury, and \n\nVandever-H404478 \n7 \n \n \nI said no. I did say that, but I was using my private insurance, and I didn’t want \nto  get  in  trouble. Because they wouldn’t help me, I  had  to  use  my  private \ninsurance and I wanted it to keep going because it was helping, so I lied. I said, \n“No, it’s not work-related,” but he knows it is. \n \nThe Court. You have answered the question. I just wanted to make sure that \nwhoever entered this did not enter it wrong and you are telling me that they \ndid not because it is what you said. \n \nA. Yes. I am not going to lie about it. \n \n Respondent resumed its cross-examination: \nQuestion. (By Mr. Ryburn) So you have no problem in your words, lying to \nmake an insurance company pay for an injury based on a lie; is that correct? \n \nAnswer.  (By  claimant)  Listen. I  was  miserable. My company wouldn’t help \nme get any help. I needed to get some therapy. I have been a nurse for thirty-\nseven years. Therapy would have made me well and it is working. So, yes, I \nlied  to  keep  myself  out  of  trouble  because  you  can’t  use  your  private \ninsurance, I thought. So, I am sorry I did that, but I do have a problem with \nlying. It is eating me up. \n \nQ.  Would you lie to obtain workers’ compensation benefits? \n \nA.  No. Never. \n \nQ.    You  retracted  your  injury. When  you  first  reported  it,  you  retracted  it \nfearing for, I guess your license. And then you were going to take off work \nbecause of your husband’s condition. And then you came back saying now \nyes, I do have an injury. Are you manipulating the facts to make it fall within \nworkers’ compensation? \n \nA. No. I explained about the thing about my husband’s injury. I used it in a \nreminder that I can’t work nights, and they wouldn’t leave it alone. So, I didn’t \nmention anything about not having an injury there. They wanted to send me \nto another home to another client that doesn’t need anything, just sit there \nfor six hours a night. That is bull because why are they on the service if they \ndon’t need help? He was a trachea patient, a little boy. So, I told them when \nI went to work there that I wasn’t working nights. And I retracted the claim \nbecause I am not going to be yelled at and abused and coerced and threatened \nover an injury that – my license means a lot to me. It’s thirty-seven years of \nexemplary service.  \n \n Claimant said she had finished her course of physical therapy and on the day that she was \n\nVandever-H404478 \n8 \n \n \ndischarged, said she was doing pretty good; as of the day of the hearing, she said that she was not the \nsame, but she used her back brace when she worked.  \n When asked about a conversation with the owner of the company, the following exchange \ntook place: \nQuestion  (By  Mr.  Ryburn)  You  talked  about  threatening  to  report  a  drug \nreport to the nursing board, it that correct? \n \nA. (By claimant) Yes sir. \n \nQ. The e-mails you submitted into the record do not reflect this conversation \nat all. Is that your understanding as well? \n \nA.  Well, it was a telephone conversation. \n \nQ.  I am saying that they don’t reflect the conversation occurred. In fact, they \nseem to be trying to hire you back. Is that what happened? \n \nA.  They were going to put me in a different placement but then they dropped \nme. I didn’t drop them. They dropped me. \n \nQ.  When you say dropped, you mean like didn’t schedule you? \n                        \nA.  Right, I haven’t heard from them since, like I said, that day they were going \nto set me up in my home to do medical record review until I could get back to \nwork. \n \nClaimant understood that she worked in a field that was in high demand but did not think \nthat anyone would hire her until she received a full release. She conceded she had not attempted to \nreturn to work, even at a desk, because she did not have a doctor’s release. When asked who or which \ndoctor had taken her off work, claimant simply said that she could not work and is not sure that she \ncould work now. \nOn redirect-examination, claimant stated that the date of the injury on the physical therapy \nintake form that said June 6, was incorrect. She had not had the symptoms of muscle spasms in her \nback and buttocks or stool leakage prior to June 12, 2024. There was then this exchange between \n\nVandever-H404478 \n9 \n \n \nclaimant and her attorney: \nQuestion. (By Ms. Brooks) Earlier Mr. Ryburn was asking you about these e-\nmails. On June 12, you emailed. On June 13, you e-mailed saying I don’t want \nto file a formal claim. At what point did you have the conversation with Gayla \nabout her threatening to turn you into the license board? \n \nA.    I  think  it  was  between  the  12\nTH\n and  the  13\nTH\n. It  could  have  been  the \nmorning of the 13\nTH\n or whenever because I remember telling them to talk to \nGayla. “You need to talk to Gayla. I am not going to file a claim.” \n \n Claimant said that about a week or so after her initial report, she called Gayla and told her she \nthought she needed to go to a doctor and Gayla said “no.”   \n The Court then questioned claimant to establish the timeline of the events of June 12 and 13, \n2024. This exchange will be set forth in the adjudication section of this opinion.  \n \nREVIEW OF THE EXHIBITS \n \n Claimant submitted eighty-seven pages of medical records, including thirteen pages of records \npredating her alleged date of injury, June 12, 2024. The progress notes from February 21, 2024, of Dr. \nSong Zang recorded that claimant had bilateral hip pain which was consistent with hip bursitis. She \nwas given steroid injections in each hip.  \n Consistent with claimant’s testimony, she did not seek medical treatment for her alleged injury \nuntil September 12, 2024, when she saw APRN Donna Long at MedExpress. APRN Long diagnosed \nclaimant with lower back pain and left hip pain with radiculopathy. She ordered x-rays which showed \n“No focal area of soft tissue swelling is appreciable. No acute fracture or subluxation is evident on \nprovided  views. There  are  no advanced  degenerative  changes  are  evident. No  radial  dense  foreign \nbodies are identified.”  The impression was: “No acute osseous abnormality.” APRN Long referred \nclaimant to an orthopedic surgeon.  \n Although  there  was  not  a contemporaneous medical  record  with  claimant’s  visit  to \n\nVandever-H404478 \n10 \n \n \nWashington Regional Medical Center on November 7, 2024, claimant was again x-rayed at the request \nof  Dr.  Jennifer  Cheatham. The  findings  were,  “Two  view  lumbar  spine  demonstrates  mild \ndegenerative  disk disease. Atherosclerotic  calcification  of  the  abdominal  aorta. Mild  facet  joint \narthropathy  of  the  lower  lumbar  spine. No compression fracture.”  The impression was, “Mild \ndegenerative disc disease and facet joint arthropathy of the lumbar spine. No acute findings.” \n On  December  19,  2024, claimant  was  seen  at  West  Washington  County  Clinic  in  Lincoln, \nArkansas where she presented with a history of illness of low back pain with radiculopathy into her \nlower left extremity which began on June 12, 2024, when she was lifting a patient. Claimant related \nthat the pain radiated into her left buttock and down the posterior thigh but did not radiate past her \nknee. The examination of claimant’s lumbar/sacral spine demonstrated tenderness at the left sciatic \nnotch but not the lumbar spine, the left paraspinal, the right paraspinal, or the right sciatic notch. The \nSLR test and the Faber test was both positive on the left side. The assessment was that claimant had \nlow back pain radiating into her lower left extremity and sacroiliac joint pain. The plan was for claimant \nto begin a course of physical therapy and have an MRI on her spine. Claimant was treated that day by \nPhysician’s Assistant Kacy Enlow and the report was reviewed by Dr. Cheatham. \n On  December  30,  2024,  claimant  was  seen  at  Washington  Regional  Medical  Center  for  an \nMRI of her lumbar spine. The findings were as follows: \nThe  vertebral  bodies  of  the  lumbar  spine  maintain  normal  height  and \nalignment.  No  fracture seen.  There  is  normal  marrow  signal.  The  conus \nmedullaris terminates at L 1-2 and is normal in signal and morphology. There \nis no acute paraspinal abnormality seen. \n \nAt L 1-2, no abnormality. \nAt  L2-3,  mild  loss  of  disc  height  and  disc  desiccation  is  seen.  There  is  mild \nannular  disc bulging.  There  is  thickening  of  the  ligamentum  flavum.  No \nsignificant neural foraminal narrowing or central canal stenosis. \n \nAt L3-4, disc desiccation is demonstrated with annular disc bulge. There is left \nforaminal disc  fissuring.  No  central  canal  stenosis  or  neural  foraminal \n\nVandever-H404478 \n11 \n \n \nnarrowing. Mild bilateral facet osteoarthritis. \n \nAt  L4-5,  there  is  mild  posterior  disc  bulge.  There  is  mild  thickening  of \nligamentum flavum and mild facet hypertrophy and osteoarthritis. There is no \nsignificant  central  canal  stenosis seen.  There  is  mild  left  neural  foraminal \nnarrowing. \n \nAt  L5-S1,  no  disc  herniation.  No  central  canal  stenosis  or  significant  neural \nforaminal narrowing. \n \nThe  impression  was  mild  lumbar  spondylosis  without  evidence  of  high-grade  central  canal \nstenosis or neuroforaminal narrowing. \n Claimant began her physical therapy at STAR on January 2, 2025. As was brought out during \nher testimony, claimant gave the history of her current condition was “Picking up something heavy \nand she had to put it down quickly, so she twisted to put it on the counter.”  However, in the subjective \nportion of the report, claimant stated that she was lifting and transferring a patient when she twisted \nher back, causing instant pain to her low back and left hip.  \n Claimant  returned  to  the  West  Washington  County  Clinic  on  February  17,  2025. The \nexamination  of  claimant’s  lumber/sacral  spine  shows,  “A  left  SI  joint  TTP  and  compression. \nExtension was painful. Lateral left flexion was painful. Rotation to the left was painful. Special test \npositive hip thrust, faber.” Claimant was given a SI joint injection.  \nClaimant  returned  to  see  PT  Wewers  on  February  28,  2025,  and  said  that  the  injection \nprovided a slight change. On March 14, 2025, claimant stated that she did not think there had been \nany improvement in the past week but there was improvement after the injection. On March 26, 2025, \nclaimant reported that she had not had any glute pain since her last appointment of March 17, 2025, \nalthough she still had pain in her back at that visit. PT Britney Wewers discharged claimant on April \n23, 2025; during that final visit, claimant stated that she was doing a lot better and denied any pain \ndown in her glutes since February. PT Wewers stated in her assessment that “The patient’s discharge \n\nVandever-H404478 \n12 \n \n \nprognosis  is  good. Patient  is  improved  a  full  ROM  of  the  lumbar  spine  without  limitations. She \ncontinues to report fatigue of her low back and at times and requires a back brace. Patient has met her \ngoals at this time.” \n Claimant submitted nine pages of non-medical evidence which consisted of e-mails dated from \nMay 6, 2024, through June 24, 2024, and a text message of July 9, 2024. The relevant e-mails and texts \nwill be discussed below in the Adjudication section of this Opinion. \nADJUDICATION \n \n To  prove  a  compensable  injury,  the  claimant  must  establish  by  a  preponderance  of  the \nevidence:  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  that  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) \nestablishing the injury; and (4) that the injury was caused by a specific incident and identifiable by time \nand place of occurrence. If the claimant fails to establish any of the requirements for establishing the \ncompensability of the claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. \nApp.  126,  938  S.W.2d  876  (1997). I  find  claimant  has  failed  to  meet  her  burden  of  proof  that  the \nalleged injury caused harm that required medical services.  \n On direct examinations, claimant said she withdrew her claim for benefits because Gayla had \nthreatened  to  report  her  to  the  nursing  board  for  drug  use. (T.10-11) During cross-examination, \nclaimant then  said  she did  not  send  the  email  to  Gayla  under threat  or coercion (T.27)  but then \nrepeated that she had been coerced into not filing a claim, (T.42). Because I had heard contradictory \nstatements from claimant on this critical issue, I requested that she clarify the sequence of events that \noccurred on June 12 and 13, 2024. From her testimony, I determined this was the timeline:  \n1.  10:11 p.m. June 12, an email was sent to Brook Buchanan an employee of \nrespondent. \n\nVandever-H404478 \n13 \n \n \n \n2.  10:24 a.m. June 13, claimant received a form from Rachel Miller that needed \nto be returned. \n \n3.  11:55 a.m. June 13, claimant sent an e-mail to Gayla saying, “I sent an injury \nreport this morning and I think I was misunderstood.” \n \n4.  11:57 a.m. claimant sent an e-mail to Rachel Miller that said “Please talk to \nGayla. I am not, nor do I need to file a workers’ compensation claim.” \n \n5.  A few days after numbers 1-4, claimant had her telephone conversation with \nGayla. (T.49-50) \n \n I simply do not believe claimant was threatened with the loss of her nursing license by Gayla \nor anyone else associated with respondent Homebound Medical to get her to retract her claim. The \nsequence of the events of June 13, 2024, shows that claimant had sent an email after normal business \nhours on June 12, 2024, and the next morning, respondents acted appropriately in providing claimant \nthe information she needed to begin her workers’ compensation claim. Claimant’s testimony was that \nafter she declined to pursue the injury claim, Homebound Medical offered to send her to another job; \nno one raised an issue about claimant’s medications. Claimant declined because it was an overnight \nposition, but the fact remains that instead of trying to jeopardize her nursing license over drug use, \nrespondents were willing to continue to use her services.  \n Because I have questions about claimant’s veracity as to the circumstances around her alleged \ninjury and her failure to compete the forms to report it, her testimony failed to persuade me that the \ninjury for which she eventually sought treatment was more than the pulled muscle she related to her \nemployer on June 13, 2024. The Arkansas Supreme Court in Wal-Mart Stores, Inc. v. VanWagner, 337 \nArk. 443, 447, 990 S.W.2d 522, 524 (1999) stated:   \n\"The plethora of possible causes for work-related injuries includes many that \ncan be established by common-sense observation and deduction. To require \nmedical proof of causation in every case appears out of line with the general \npolicy of economy and efficiency contained within the workers' compensation \nlaw. To  be  sure,  there will  be  circumstances  where  medical  evidence  will  be \n\nVandever-H404478 \n14 \n \n \nnecessary  to  establish  that  a  particular  injury  resulted  from  a  work-related \nincident but not in every case.\" (Emphasis added.)  \n \n Because of claimant’s inconsistent statements and her delay in seeking medical treatment, a \nmedical provider needed to opine that what was being treated was the probable result of the alleged \ninjury of June 12, 2024, in order for her to establish the connection between her alleged work-related \ninjury and the low back injury for which she was treated. I recognize the records contain numerous \naccounts from claimant as to how the injury took place, but none of the medical providers expressed \nan opinion that what claimant was being treated for was connected to that incident. Additionally, the \nradiographic  evidence as  set  forth  above is  inclusive for the  necessary objective  finding of  a \ncompensable injury.  \nBased on the foregoing, I find that claimant has failed to meet her burden of proving by a \npreponderance  of  the  evidence  that she  suffered  a  compensable  injury  to  her  lower  back while \nworking for respondent on June 12, 2024. \nORDER \n \nClaimant has failed to meet her burden of proving by a preponderance of the evidence that \nshe  suffered  a  compensable injury  to  her  low  back  on  June  12,  2024.  Therefore,  her claim  for \ncompensation benefits is hereby denied and dismissed. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $ 623.00. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":29030,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404478 MARILYNN G. VANDEVER, EMPLOYEE CLAIMANT HOMEBOUND MEDICAL, EMPLOYER RESPONDENT SUMMIT CONSULTING LLC, CARRIER/TPA RESPONDENT OPINION FILED JUNE 20, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansa...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["back","neck","knee","cervical","hip","lumbar","fracture"],"fetchedAt":"2026-05-19T22:39:55.756Z"},{"id":"alj-H304411-2025-06-19","awccNumber":"H304411","decisionDate":"2025-06-19","decisionYear":2025,"opinionType":"alj","claimantName":"Shannon Dodson","employerName":"New Age Distrubuting, Inc","title":"DODSON VS. NEW AGE DISTRUBUTING, INC. AWCC# H304411 June 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DODSON_SHANNON_H304411_20250619.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DODSON_SHANNON_H304411_20250619.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NO.: H304411 \n \n \nSHANNON DODSON, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nNEW AGE DISTRUBUTING, INC.,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nRETAILERS CASUALTY INSURANCE, \nCARRIER/TPA                                                                                                       RESPONDENT    \n                                                                                                                                \n          \nOPINION FILED JUNE 19, 2025   \n \nHearing held before Administrative Law Judge CHANDRA L. BLACK, in Little Rock, Pulaski \nCounty, Arkansas. \n \nThe Claimant, pro se, failed to appear at the hearing. \n \nRespondents represented  by the  Honorable Zachary  F.  Ryburn, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on June 18, 2025, in the present case to determine whether this claim \nfor additional Arkansas workers’ compensation should be dismissed for failure to prosecute under \nthe   provisions   of   Ark. Code   Ann. §11-9-702 (Repl.   2012), and/or Arkansas  Workers’ \nCompensation Commission Rule 099.13.  The dismissal hearing in this claim was held pursuant \nto  the  ruling  in Dillard v. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287 \n(2004). \nAppropriate notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \n\nDODSON - H304411 \n \n2 \n \nThe record consists of June 18, 2025, hearing transcript and the documents held therein.  \nCommission’s Exhibit consists of fourteen (14) pages of  pleadings,  letters,  forms,  and  other \ntracking documents which were provided to the Commission by the United States Postal Service \nconcerning  delivery  information  for  notices  sent  to  the Claimant; and Respondents’ Exhibit 1 \nconsists of five (5) pages. \n                                                             Procedural History \n On August  1,  2023, the Claimant’s  attorney filed  with  the  Commission  a  claim  for \nArkansas workers’ compensation benefits via a Form AR-C.  Per  this  document,  the  Claimant \nalleged that she sustained injuries during the course and in the scope of her employment with the \nrespondent-employer.  According  to  this document,  the  Claimant asserted  that  she  sustained an \ninjury to her wrist in a work-related accident on July 3, 2023.  The Claimant’s attorney requested \nonly additional benefits.  In fact, her attorney checked all the boxes for every possible additional \nworkers’ compensation benefit allowed under the law. \n  On July 13, 2023, the respondent-insurance-carrier filed with the Commission a Form AR-\n2 stating their position on this claim for workers’ compensation benefits.   Per  this  form,  the \nRespondents accepted the claim as compensable.  Specifically, the carrier stated in a letter to the \nCommission dated August 3, 2023, that they were paying all reasonable, necessary, related, and \nauthorized medical and indemnity benefits.  \n The  Claimant  requested  a  change  of  physician from  Sean  Michael  Morell,  M.D.  to  Mar \nTait, DO.  On August 24, 2023, the Commission’s Medical Cost Containment Director entered a \nchange of physician order granting the Claimant’s request for a change of physician.       \n\nDODSON - H304411 \n \n3 \n \n Subsequently,  there  was no activity  whatsoever  on  the  claim.   However,  on February  9, \n2024, the Claimant’s attorney sent an email to the Commission,  which  was  accompanied  by  a \nMotion to Withdraw from representing the Claimant in this matter. \n  On February 26, 2024, the Full Commission entered an order granting the motion for the \nClaimant’s attorney to withdraw as counsel of record.  \n Since this time, the Claimant has not tried to pursue or otherwise resolve her claim, nor has \nshe made a bona fide request for a hearing since the filing of the Form AR-C in August 2023.    \n Therefore,  on April  22,  2025, the  Respondents filed a Respondents’ Motion  to Dismiss, \nwith the Commission, along with a certificate of service confirming that they had emailed a copy \nof the motion to the Claimant.   \nOn April  24,  2025, my  office  sent  a  letter/notice  to  the Claimant  informing  her of the \nRespondents’ motion, and a deadline of twenty (20) days, for filing a written response.  Said letter \nwas sent to the Claimant via both first-class and certified mail.  Per tracking information received \nfrom the United States Postal Service, on April 26, 2025, they delivered this item to the Claimant’s \nresidence and left it with an individual.  However, the signature of the recipient signing for delivery \nof this item  is  illegible.   Yet,  the letter  sent via first-class  mail  has  not  been  returned  to  the \nCommission.   \n   Subsequently, there was no response whatsoever from the Claimant.   \n Therefore, my office sent a Hearing Notice to the parties on May 16, 2025, letting them \nknow that this matter had been set for a hearing on the Respondents’ motion for dismissal of this \nclaim due to a lack of prosecution.  Said dismissal hearing was scheduled for Wednesday, June 18, \n2025, at the Arkansas Workers’ Compensation Commission. \n\nDODSON - H304411 \n \n4 \n \nThis notice of hearing was mailed to the Claimant by both first-class and certified mail.  \nPer tracking information received from the United States Postal Service, on May 21, 2025, they \ndelivered this item to the Claimant’s residence and left it with an individual.  Yet  again the \nsignature  of  the  recipient signing  for  delivery  of this  item  is  illegible.   Thus  far,  the notice  of \nhearing sent  via  first-class  mail  has  not  been  returned  to  the  Commission. Under  these \ncircumstances, I find that the Claimant received proper notice of the hearing. \n Still, there was no response whatsoever from the Claimant.   \nNevertheless,  the  hearing  was  held  as  scheduled.  The Claimant did  not appear at the \nhearing.  However, the Respondents’ counsel appeared at the hearing and argued that the Claimant \nhas  failed  to  prosecute  her claim for workers’ compensation benefits.   More  specifically, the \nRespondents’ attorney noted that the Claimant has not taken any action to advance her claim since \nthe filing of the Form AR-C in August 2023, which was clearly done more than six (6) months \nago.   \nTherefore, the Respondents’ attorney moved that this claim be dismissed pursuant to Ark. \nCode Ann. §11-9-702, and/or Commission Rule 099.13 without prejudice.  \n                                                       Adjudication \nThe statutory provision and Arkansas Workers’ Compensation Rule applicable in the  \nRespondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \n \n \n\nDODSON - H304411 \n \n5 \n \n \n \nAdditionally, Commission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A thorough review of the evidence before me shows that the Claimant has had ample time \nto pursue her claim for additional benefits, but she has failed to do so.  Specifically, the Claimant \nhas  not  requested  a  hearing  or  otherwise made  any  effort to  prosecute  her claim for workers’ \ncompensation benefits since the filing of the Form AR-C in August 2023, which was done over \nmore than six (6) months ago.  Of significance, the Claimant has failed to oppose the motion, and \nshe has not responded to the notices of this Commission.   \nHere, the evidence preponderates that the Claimant has failed to timely prosecute this claim \nfor additional workers’ compensation benefits.  Under these circumstances, I am convinced that \nthe Claimant has abandoned her claim for workers’ compensation benefits.  Accordingly, based \non the preponderance of the evidence presented before me, I find that the Respondents’ motion to \ndismiss for a lack of prosecution to be well taken.  I thus find that pursuant to the provisions of \nArk. Code Ann.§11-9-702 (Repl. 2012), and Commission Rule 099.13, this claim for additional \nworkers’ compensation benefits is hereby dismissed, without prejudice, to the refiling within the \nlimitation period specified under the law. \n\nDODSON - H304411 \n \n6 \n \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            4. The Respondents’ motion to dismiss this claim for want of prosecution is \nhereby granted, without prejudice, pursuant to the provisions of Ark. Code \nAnn. §11-9-702, and Commission Rule 099.13, to the refiling of the claim \nwithin the specified limitation period.  \n \n                                                           ORDER \n \nBased  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nadditional Arkansas workers’ compensation benefits.  This dismissal is pursuant to Ark. Code Ann. \n§11-9-702, and Commission Rule 099.13, without prejudice, to the refiling of this claim within \nthe limitation period specified under the Act. \n           IT IS SO ORDERED. \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":11262,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H304411 SHANNON DODSON, EMPLOYEE CLAIMANT NEW AGE DISTRUBUTING, INC., EMPLOYER RESPONDENT RETAILERS CASUALTY INSURANCE, CARRIER/TPA RESPONDENT OPINION FILED JUNE 19, 2025 Hearing held before Administrative Law Judge CHANDRA L. BLACK, in Little Rock, P...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T22:39:47.284Z"},{"id":"alj-H406857-2025-06-19","awccNumber":"H406857","decisionDate":"2025-06-19","decisionYear":2025,"opinionType":"alj","claimantName":"Alyssa Newell","employerName":"Qmt LLC, Quapaw Baths, LLC","title":"NEWELL VS. QMT LLC, QUAPAW BATHS, LLC AWCC# H406857 June 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/NEWELL_ALYSSA_H406857_20250619.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NEWELL_ALYSSA_H406857_20250619.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.:H406857 \n \n \nALYSSA NEWELL, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nQMT LLC, QUAPAW BATHS, LLC,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nMARKEL SERVICE, INC., \nCARRIER/TPA                                                                                                       RESPONDENT    \n                                                                                                                                \n          \nOPINION FILED JUNE 19, 2025   \n \nHearing held before Administrative Law Judge CHANDRA L. BLACK, in Little Rock, Pulaski \nCounty, Arkansas. \n \nThe Claimant, pro se, did not appear at the hearing. \n \nRespondents represented by the Honorable Randy P. Murphy, Attorney at Law, North Little Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on June 18, 2025, in the present case to determine whether this claim \nfor initial Arkansas workers’ compensation should be dismissed for failure to prosecute under the \nprovisions of Ark. Code Ann. §11-9-702 (Repl. 2012), and/or Arkansas Workers’ Compensation \nCommission Rule 099.13.  The dismissal hearing in this claim was held pursuant to the ruling in \nDillard v. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004). \nAppropriate notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \nThe record consists of June 18, 2025, hearing transcript and the documents held therein.  \nCommission’s Exhibit consisting of seven (7) pages of pleadings, letters, forms, and other tracking \n\nNEWELL - H406875 \n \n2 \n \ndocuments provided to the Commission by the United States Postal Service concerning delivery \ninformation  for the notices  sent  to  the Claimant; and Respondents’ Exhibit 1 includes three (3) \npages. \n                                                             Procedural History \n The following procedural history applies to this claim: \n Specifically,  on October  18,  2024, the Claimant’s attorney filed  with  the  Commission  a \nclaim for Arkansas workers’ compensation benefits via a Form AR-C.  Per  this  document,  the \nClaimant alleged that she sustained injuries during the course and in the scope of her employment \nwith  the  respondent-employer.  According  to  this document,  the  Claimant asserted  that  she \nsustained an injury to  her left  knee  on  October  14,  2024.  The Claimant requested only  initial \nadditional benefits, in the form of temporary partial disability, medical expenses, rehabilitation, \nand an attorney’s fee.   \n  On February 6, 2025, the respondent-insurance-carrier filed with the Commission a Form \nAR-2 stating their position on this claim for workers’ compensation benefits.  Per this document, \nthe Respondents controverted the claim in its entirety.  Specifically, the carrier wrote on the Form \nAR-2 “DENYING in full based on Dr. Vargas’ findings of a pre-existing condition.”  \n The Claimant has not requested a hearing on the merits since the filing of the claim via the \nForm AR-C, on October 18, 2024.       \n Because there was no activity whatsoever on the claim, the Respondents filed a Motion to \nDismiss for Failure to Prosecute, along with a certificate of service confirming that they had mailed \na copy of the motion to the Claimant via the United States Postal Service.   \nOn April  24,  2025, my  office  sent  a  letter/notice  to  the Claimant  informing  her of the \nRespondents’ motion, and a deadline of twenty (20) days, for filing a written response.  Said letter \n\nNEWELL - H406875 \n \n3 \n \nwas  mailed  to  the  Claimant via both  first-class  and  certified  mail.  Per tracking information \nreceived  from  the  United  States  Postal  Service, on May  9, 2025, they  were  unable  to find any \ndelivery information in their records for this item, which was sent via certified mail.  Yet, the letter \nsent via first-class mail was returned to the Commission, on May 27, 2025, marked “Unclaimed, \nUnable to Forward.”   \n   However, there was no response whatsoever from the Claimant.   \n Therefore, per a  Hearing  Notice sent  to  the  parties  on May  16,  2025,  the  Commission \nnotified them that this matter had been set for a hearing on Respondents’ motion for dismissal of \nthis claim due to a lack of prosecution.  Said dismissal hearing was scheduled for Wednesday, June \n18, 2025, at the Arkansas Workers’ Compensation Commission. \nSaid notice of hearing was sent to the Claimant by both first-class and certified mail.  Per \ntracking information received from the United States Postal Service, on June 3, 2025, they were \nunable to find any delivery information in their records for the afore item sent via certified mail.  \nYet, the letter sent via first-class mail was returned to the Commission, on June 12, 2025, marked \n“Unclaimed, Unable to Forward.”   \n Still, there has been no response whatsoever from the Claimant.   \nNevertheless,  the  hearing  was  held  as  scheduled.  The Claimant did  not appear at the \nhearing.  However, the Respondents’ counsel appeared at the hearing and argued that the Claimant \nhas failed to prosecute her claim initial for workers’ compensation benefits.  More specifically, the \nRespondents’ attorney noted that the Claimant has not taken any action to advance her claim since \nthe  filing  of  the Form  AR-C, which was  done more  than  six  (6)  months ago.   Therefore, the \nRespondents’ attorney moved that this claim be dismissed pursuant to Ark. Code Ann. §11-9-702, \nand/or Commission Rule 099.13 without prejudice.  \n\nNEWELL - H406875 \n \n4 \n \n                                                        Adjudication \nThe statutory provision and Arkansas Workers’ Compensation Rule applicable in the  \nRespondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, Commission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A thorough review of the evidence before me shows that the Claimant has had ample time \nto pursue her claim for initial benefits, but she has failed to do so.  Specifically, the Claimant has \nnot  requested  a  hearing  or  otherwise made  any  effort to  prosecute  her claim for  workers’ \ncompensation benefits since the filing of the Form AR-C in August 2023, which was done over \nmore than six (6) months ago.  Of significance, the Claimant has failed to oppose the motion, and \nshe has  not  responded to  the  notices  of  this  Commission.   Under  these  circumstances,  I  am \npersuaded that the Claimant has abandoned her claim for workers’ compensation benefits.   \n\nNEWELL - H406875 \n \n5 \n \nHence,  the  evidence  preponderates  that  the  Claimant  has  failed  to timely prosecute  this \nclaim for initial workers’ compensation benefits.  Accordingly, based on the preponderance of the \nevidence presented before  me,  I  find that the Respondents’ motion  to dismiss for  a  lack  of \nprosecution to be well taken.  I thus find that pursuant to the provisions of Ark. Code Ann.§11-9-\n702 (Repl.  2012), and Commission  Rule  099.13,  this claim for initial workers’ compensation \nbenefits is hereby respectfully dismissed, without prejudice, to the refiling within the limitation \nperiod specified under the law. \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            4. The Respondents’ motion to dismiss this claim for want of prosecution is \nhereby granted, without prejudice, pursuant to the provisions of Ark. Code \nAnn. §11-9-702, and Commission Rule 099.13, to the refiling of the claim \nwithin the specified limitation period.  \n \n                                                           ORDER \n \nBased upon the foregoing findings, I have no alternative but to dismiss this claim for initial \nArkansas workers’ compensation benefits.  This dismissal is pursuant to Ark. Code Ann. §11-9-\n702, and Commission Rule 099.13, without prejudice, to the refiling of this claim within the  \n \n \n\nNEWELL - H406875 \n \n6 \n \nlimitation period specified under the Act. \n           IT IS SO ORDERED. \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":10324,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.:H406857 ALYSSA NEWELL, EMPLOYEE CLAIMANT QMT LLC, QUAPAW BATHS, LLC, EMPLOYER RESPONDENT MARKEL SERVICE, INC., CARRIER/TPA RESPONDENT OPINION FILED JUNE 19, 2025 Hearing held before Administrative Law Judge CHANDRA L. BLACK, in Little Rock, Pulaski County, ...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:39:49.385Z"},{"id":"alj-H404760-2025-06-18","awccNumber":"H404760","decisionDate":"2025-06-18","decisionYear":2025,"opinionType":"alj","claimantName":"Bruce Golden","employerName":"City Of Mccrory","title":"GOLDEN VS. CITY OF McCRORY AWCC# H404760 June 18, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Golden_Bruce_H404760_20250618.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Golden_Bruce_H404760_20250618.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H404760 \n \n \nBRUCE K. GOLDEN, EMPLOYEE CLAIMANT \n \nCITY OF McCRORY, \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. MUN. LEAGUE, \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED JUNE 18, 2025 \n \nHearing  before Chief Administrative  Law  Judge  O.  Milton  Fine  II  on May  2,  2025,  in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Ms. Mary K. Edwards, Attorney at Law, North Little Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On May 2, 2025, the above-captioned claim was heard in Jonesboro, Arkansas.  \nA prehearing conference took place on March 3, 2025.  The Prehearing Order entered \non that date pursuant to the conference was admitted without objection as Commission \nExhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations,  issue,  and \nrespective contentions were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations set  forth  in  Commission \nExhibit 1.  They are the following, which I accept: \n1. The Arkansas  Workers’  Compensation  Commission  (the  “Commission”) \nhas jurisdiction over this claim. \n\nGOLDEN – H404760 \n \n2 \n \n2. The  employee/self-insured  employer/third-party  administrator relationship \nexisted among the  parties  on June  17,  2023,  when  Claimant  suffered \ncompensable  injuries  to  his  right  shoulder  and  left  knee  by  specific \nincident. \n3. Respondents  accepted  the  above  injuries  as  compensable  and  paid \nbenefits pursuant thereto. \nIssue \n At the hearing, the parties discussed the issue set forth in Commission Exhibit 1.  \nThe following was litigated: \n1. Whether  Claimant  is  entitled  to  additional  treatment  of  his  stipulated \ncompensable  injuries  in  the  form  of  surgery  recommended  by  Dr.  Joel \nSmith. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n 1. Claimant contends that he sustained admitted compensable injuries to the \nleft    knee    and    right    shoulder.        Surgical    intervention    has    been \nrecommended  for  these  body  parts;  but  such  has  been  denied  by \nRespondents. \n\nGOLDEN – H404760 \n \n3 \n \n Respondents: \n1. Respondents  contend  that  Claimant  has  received  all  appropriate  medical \ncare  to  which  he  is  entitled.    He  saw  Dr.  Spencer  Guinn  for  his  right \nshoulder and left knee.  On March 25, 2024, Dr. Guinn returned Claimant \nto full duty.  In a follow-up dated May 20, 2024, Guinn placed Claimant at \nmaximum  medical  improvement  and  assigned  him  a  zero  percent  (0%) \nimpairment rating for both his shoulder and his knee.  The doctor did not \nrecommend  further  treatment  to  either  body  part.    Of  note,  Claimant  has \npre-existing issues. \n2. Claimant  changed  physicians  to  Dr.  Smith,  who  on  October  7,  2024, \nimmediately   recommended   surgery   for   both   the   left   knee  and   right \nshoulder  after  only  seeing  him  one  time.    Respondents  denied  further \ntreatment after this visit. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  Claimant  and  to  observe  his demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n\nGOLDEN – H404760 \n \n4 \n \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to additional treatment of his stipulated compensable left knee and \nright  shoulder injuries in  the  form  of surgery and  related  treatment \nrecommended by Dr. Joel Smith. \nADJUDICATION \nSummary of Evidence \n Claimant was the sole hearing witness. \n In  addition  to  the Prehearing Order  discussed  above,  the  exhibits  admitted  into \nevidence in this case were Claimant’s Exhibit 1, a compilation of his medical  records, \nconsisting of one index page and 47 numbered pages thereafter; Respondents’ Exhibit \n1, another compilation of Claimant’s medical records, likewise  consisting  of  one  index \npage  and 25 numbered  pages  thereafter; and Respondents’ Exhibit  2, non-medical \nrecords related to this claim, consisting of one index page and seven numbered pages \nthereafter. \nAdjudication \n Introduction.   As  the  parties  have  stipulated—and  I  have  accepted—Claimant \nsustained compensable injuries to his left knee and right shoulder on June 17, 2023.  In \nthis  proceeding,  he  is  seeking  additional  treatment of  them.    This  would  come  in  the \nform   of surgery   by   Dr.   Smith,   who   has   recommended   that   he   undergo these \nprocedures.    Respondents,  on  the  other  hand, have  denied  that either  operation  is \nreasonably and necessary. \n\nGOLDEN – H404760 \n \n5 \n \n Evidence.    In his  testimony,  Claimant described  how  his compensable injuries \noccurred.  A law enforcement officer, Claimant was at a house, attempting to apprehend \na suspect.  He related: \nWell,  around  the  corner  of  the  house—the  corner  of  the  house, [I] go  to \nthe back of the house, there is a porch there.  Instead of the door, she had \na sheet hanging up.  As I approached that sheet, I could hear somebody \nmoving around there.  It sounded like it went back inside the house.  So at \nthat time, I pulled my taser out, pulled the curtain back, and looked inside \nreal   carefully   and   stepped   up   on   the   porch.  And   the   lady   that \ncomplained—the complainant was standing inside, kind of to the left of the \nkitchen  table.  And I  did  like  this (indicating) and  she  pulled  it  over to my \nright-hand side.  And at that time, he came out to the table.  And I had to \ngo  back and  review  the  video .  .  . because  I  was  knocked  of  conscious \nwhen  I  fell.  And  in  the  camera  footage,  he  went  out  to—started  out  the \ndoor.  I went around the table, and I deployed my taser as I was going out \nthe  door.  And  it  was  like  a  two-block  foundation  of  that  house,  which  is \nabout  18,  20  inches [high].  And I don’t know if I missed the step or just \ntripped.  But  when  I  fell,  I  tased  him  as  I  was  going  out  the  door.  And  I \ntripped  and  fell  down  on  my  right  elbow,  which  injured  my  shoulder and \nmy  left  knee,  and  I  also  had a  concussion  with  a  big  knot  on  the  back  of \nmy head.  And my [body] camera, I landed on it, knocked the breath out of \nme  and  knocked  me  out.  When  I  come  too,  I  could  just  barely  see \ndaylight.  First thing I heard behind it was a lady screaming, “Are you OK?  \nAre you OK?“ \n \n Initially,  Claimant  was taken to the  emergency  room  at  White  County  Medical \nCenter.  The record of his June 17, 2023, visit to the hospital shows that presented with, \ninter alia, pain in his left knee and right shoulder.  The x-ray of his knee revealed “[n]o \nacute  findings”;  and  his  shoulder  x-ray  showed  only  degenerative  changes  of  his \nglenohumeral and acromioclavicular joints, with no fracture or dislocation. \n Thereafter, Claimant  visited  the  McCrory  Family  Clinic  on  four  occasions,  from \nJune 20, 2023, to October 10, 2023.  The reports of those visits show that Claimant still \n\nGOLDEN – H404760 \n \n6 \n \nwas complaining of left knee and right shoulder pain from his work-related fall.  Multiple \nphysical therapy sessions on the shoulder resulted in no improvement. \n On  December  7,  2023,  he  underwent  an  MRI  of  his  right  shoulder.    Per  Dr.  Bill \nRice,  who  was  the  radiologist  who  initially  reviewed the  MRI, and Dr.  Guinn,  who  later \nreviewed it but termed the study a “poor quality” one, it showed him to have not only \nedema  in  the  shoulder,  but  a  suspected  SLAP  tear.    While  Guinn  wrote  that  Claimant \n“may”  have  such  a  tear,  Rice  opined  that its  existence  was  “probable.”    Dr.  Guinn \nreferred  Claimant  for  shoulder  injections  by  Dr.  Morgan  Benefield.   After  seeing  him \nagain on January 26, 2024, Dr. Guinn wrote: \nFor the right shoulder, he had 5 or 6 days of great relief, but then the pain \nhas  returned.    We  discussed  that  unfortunately  with  that  sort  of  relief,  he \nwill  most  likely  require  surgery.    He  had  a  very  poor  quality  non-contrast \nstudy  MRI  scan  of  his  shoulder,  so  we  also  discussed  the  possibility  of \nobtaining an MR arthrogram of the right shoulder. \n \nAs for the left knee, Dr. Guinn stated that Claimant had a “probable medial meniscus \ntear.”  Noting that that Claimant had only had x-rays of the knee, the doctor stated that \nhe and Claimant discussed his undergoing and MR arthrogram of the knee. \n On  February  19,  2024,  Claimant  underwent a  second  MRI of his  right  shoulder.  \nPer Dr. Ezekiel Shotts, who read the MRI, it showed Claimant to have a “[l]ow grade \npartial  articular  surface infraspinatus tendon  tear[.]”    That  same  day,  Claimant  also \nunderwent an MRI of his left knee.  Dr. Christopher Ryen authored the MRI report and \nwrote  that  the  test  showed  not  only “trace” effusion in the joint, but also “[f]ree edge \nfraying/tearing of the medial meniscus posterior horn with mild extrusion of [the] medial \nmeniscus body.” \n\nGOLDEN – H404760 \n \n7 \n \n Claimant returned to Dr. Guinn on February 23, 2024.  The doctor reviewed the \nshoulder MRI and wrote that it “reveal[ed] arthrosis of the AC joint . . . [with] very low-\ngrade  partial-thickness  articular-sided  tearing  of  the  infraspinatus.”    Likewise,  he \nreviewed the knee MRI and found that it reflected “mild fraying of the medial meniscus   \n. . . [with] no evidence of tearing . . . [but] mild chondrosis of the medial compartment.”  \nDr. Guinn’s report includes the following: \nImpression & Recommendations: \nASSESSMENT \n1.  Right shoulder pain \n2.  Left knee pain \n \nPLAN \nI had a lengthy discussion with the patient regarding his findings.  On the \nknee,  he  has  some  mild  fraying  and  some  mild  pre-existing  arthritis,  so \nthis  appears  to  be  nonsurgical.    I  have  discussed  treatment  options.    He \nwould like to receive a left knee injection. \n \nFor his right shoulder, the injury appears to be isolated to the AC joint and \nactually  the  edema  has  improved  since  his  original  film.    I  recommended \nthat we continue to treat this non-surgically and he agrees.  I will send him \nback to physical therapy 3 times a week plus a daily home program.  He \nwill follow up in 1 month. \n \n In a follow-up visit with Dr. Guinn on March 25, 2024, per the report thereof, the \ndoctor noted the following: \nHis  shoulder  is  doing  good.    He  had  to  avoid  doing  the  stretching  or \nanything  out.    He  can work  around  it,  but  he  has  a  little  range  of motion, \nbut he still has soreness in the muscle.  Picking something up very heavy \naggravates it.  Therapy is still helping with his range of motion, but it is not \nkeeping  him  from  hurting.    He  had  4  weeks of  physical  therapy 3  days a \nweek  and  would  like  1  more  day  left.    The  patient  states  that  he  had  an \narthritis treatment this morning. \n \nHis left knee felt better a couple of days after the injection.  He rates it as 2 \ncurrently.  He can feel a pulling sensation when he walks downhill. \n\nGOLDEN – H404760 \n \n8 \n \n \n. . . \n \nIMPRESSION & RECOMMENDATIONS \nASSESSMENT \n1. Workman’s compensation injuries. \nPLAN \nHe   is still   having   difficulty   with   lifting   anything   heavy   overhead.  \nUnfortunately, due to his work schedule, therapy is very difficult for him to \nattend.  He will go one more time, switch over to a home program.  He will \ndo these daily on his own. \n \n. . . \n \nASSESSMENT \n2. Left knee pain. \nWe  had  a  discussion  about  options.    I  do  not  appreciate  any  surgical \nindications for the knee.  He did have some pre-existing arthritis.  He is on \nsystemic arthritis therapy.  He would like to have another injection. \n \n On May 20, 2024, Claimant went to Dr. Guinn for the last time.  That report reads \nin pertinent part: \nHistory of Present Illness: \nBruce Golden is a 59-year-old male who is here for follow-up of his work-\nrelated  injuries  to  his  right  shoulder  and  left  knee.    At  his  last  visit  2 \nmonths ago, I injected his right shoulder. \n \nThe patient’s shoulder condition remains unchanged, limiting his ability to \nengage in activities such as throwing a baseball or washing his hair. \n \nThe patient reports that the previous injection administered to his knee did \nnot  alleviate  his  pain,  and  he  continues  to  experience  pain  the  following \nday.    He  experiences  pain  when  moving  his  foot  to  the  left  or  right  side, \nparticularly when his foot is hit by an object. \n \n. . . \n \nImaging \nMRI of the right shoulder shows arthritis at the end of the collar bone and \nmild inflammation of the rotator cuff.  MRI of the left knee shows a little bit \nof arthritis and a frayed spot on the meniscus, but no tear. \n\nGOLDEN – H404760 \n \n9 \n \n \nImpression & Recommendations \nASSESSMENT \nWork-related injuries to the right shoulder and left knee. \n \nPLAN \nThe patient’s  condition  has  unfortunately  plateaued,  with  no  significant \nimprovement  observed.    Prior  to  this  injury,  he  was  under  the  care  of  a \nhand  surgeon  for  his  rheumatoid arthritis  and  was  scheduled  for  surgery.  \nHowever,  due  to  his  ongoing  treatment  for  his  workers’  compensation \ninjury, he opted for a release.  Currently, the patient is at full duty and is at \nmaximum  medical   improvement.     His   impairment   can   be   calculated \nseparately. \n \n. . . \n \nAccording  to  the  American  Medical  Consultation  [sic]  Guides  to  the \nEvaluation  of  Permanent  Impairment  for  [sic]  4\nth\n edition,  the  patient  is \ndeemed  fit  for  full  duty  at  his  workplace.   He  has  a  0  percent  impairment \nrating for his shoulder and knee injuries. \n \n Claimant’s testimony was that he has undergone injections to both his left knee \nand  his  right  shoulder.    However,  only  his  injured  shoulder  has  been  addressed  in \nphysical therapy sessions.  His testimony, which is corroborated by the medical records \nhighlighted  above,  is  that  he  is  still  experiencing  pain  in  both  and  knee  and  in  the \nshoulder.  Claimant described feeling a “grinding” sensation in both of them.  His knee \ndiscomfort  is  so  problematic  that  he  feels  pain  even  when  sitting  in  a  recliner  and \nelevating his left leg. \n According  to  Claimant,  he  anticipated  both  his  knee  and  his  shoulder  being \ntreated  surgically  while  he  was  under  Dr.  Guinn’s  care.    But  that  did  not  end  up \nhappening. \n\nGOLDEN – H404760 \n \n10 \n \n As   a   result,   Claimant   sought   a   one-time   change   of   physician   from   the \nCommission.  This was granted in an Order entered on September 19, 2024.  Pursuant \nto  this  order, Claimant  saw  Dr.  Smith on  October  7,  2024.   Claimant  related  that  he \nbrought  his  medical  records—including  his  MRIs—with  him  to  that  appointment  for \nSmith to review.  The report of that visit reads in pertinent part: \nChief Complaints: \n1.  Right Shoulder Pain \n2.  Left Knee Pain \n \nHPI: This is a 59 year old male who: \n1.  is  right  hand  dominant  and  is  being  seen  for  a  chief  complaint  of \nshoulder  pain,  involving  the  right  shoulder.    This  occurred  in  the \ncontext  of  an  injury  at  work  on 06/17/2023  (Police  officer  chased \nafter  someone  and  fell  off  a  two  foot  drop)  and  has  been  treated \nwith   activity   modification,   muscle   relaxant,   NSAIDs,   naproxen, \nphysical therapy, and subacromial steroid injection.  He has had no \nsurgical  procedures.    The  shoulder  pain  occurs  randomly.    The \nshoulder  pain  is  described  as  sharp  and  popping  and  associated \nwith   arm   weakness,   difficulty   sleeping,   worse   with   overhead \nactivity,  and  worse  with  forward  elevation.    The  shoulder  pain \nwas/is 8 out of 10 on an average day.  He reports often functional \nlimitations. \n2.  presents  for  left  knee  pain  located  on  the  front  of  the  knee.  \nSymptoms  began  as  a  result  of  an  injury  at  work  on 06/17/2024 \n(Chasing  a  guy  and  fell  off  a  2  foot  ledge).  The  pain  constantly \noccurs  and  is  aching  and  dull.  In  addition,  the  patient rates  their \npain as 3 out of 10 on an average day.  The pain is associated with \nstiffness and the knee giving way.  He has been treated with steroid \ninjection(total  number  of  injections =  2),  rest,  ice,  and  elevation, \nmuscle   relaxants,   and   NSAIDs.  He   has   had   no   surgical \nprocedures.  He has had the following diagnostic studies:  MRI.  He \nreports often functional limitations. \n \n. . . \n \nSpecial: \nRight  Shoulder:    AC  cross  chest:    painful,  Hawkin’s  impingement:  \npositive, and Neer impingement:  positive \n\nGOLDEN – H404760 \n \n11 \n \n \n. . . \n \nSpecial: \nLeft Knee:  Apley Grind Test:  positive medial \n \n. . . \n \nMRI Interpretation Knee \nMRI:  left MRI Knee \nMRI  of  the  left  knee  was  reviewed,  demonstrating  the  following  findings:  \nFree  edge  fraying  of  the  medial  meniscus  w  extrusion.    Low  grade \nchondromalacia.  Remaining exam is normal \n \n. . . \n \nMRI Interpretation Shoulder \nMRI:  right MRI Shoulder \nMRI  of  the  right  shoulder  was  reviewed,  demonstrating  the  following \nfindings:  Partial thickness infraspinatus tear.  AC joint arthrosis \n \nImpression/Plan: \n1.  Medial Meniscus Tear, Acute, Left \nOther  tear  of  medial  meniscus,  current  injury,  left  knee,  initial \nencounter (S83.242A) \nDistributed on the left knee joint and left knee \nPain Intensity:  3.0 – 3/10 Pain \n \n. . . \n \nAfter counseling the patient, we decided on the following plan for the LEFT \nKNEE:  Partial Meniscectomy \n \n. . . \n \nHe has tried an injection and PT without improvement or resolution of his \npain.  At this point, I think he is a candidate for a knee scope with PMM. \n \n. . . \n2. Rotator Cuff Tear, Partial, Right \nIncomplete  rotator  cuff  tear  or  rupture  of  right  shoulder,  not  specified  as \ntraumatic (M75.111) \n\nGOLDEN – H404760 \n \n12 \n \nAssociated    diagnoses:        Acromioclavicular    Arthritis    and    Shoulder \nImpingement \nPain Intensity: 8.0 – 8/10 Pain \n \n. . . \n \nAfter  counseling  the  patient,  we  decided  on  the  following  plan  for  the \nRIGHT  shoulder:    Athroscopic  subacromial  decompression  and  Mumford \nProcedure \n \n. . . \n \nThis  has  been  going  on  for  over  a  year  without  resolution  with  injections \nand PT.  He has AC joint arthritis, but did not have pain from that until this \ninjury.  He has had an exacerbation of the arthritis and inflammation from \nhis injury now resulting in pain.  At this point, I recommend a right shoulder \nscope  with  SAD/DCR  and  possible  RCR  depending  on  intra-operative \nevaluation.  I do believe his AC joint pain is from his injury last year. \n \n Asked  about  Dr. Smith’s  above  recommendations  that  he  undergo  surgery on \nboth his left knee and right shoulder, Claimant testified that he agrees with both of those \nrecommendations and is willing to undergo those procedures.  He elaborated: \nI can’t function.  I can’t do anything that I need to do around the house in \nthe way it’s been.  Things that need to be done but I can’t do it myself.  I \ncan’t afford to pay for it.  I’m not—I don’t have any income except for my \nretirement check. \n \nBecause of his shoulder issues, Claimant has limitations concerning how much he can \nlift  with  it.    When  lying  on  his  back,  his  right  upper  extremity  is  practically  useless.  \nWalking  hurts  his  left  knee.    Placing  pressure  on  it  causes  it  to  hurt.   To  treat  his \nsymptoms,  Claimant  relies  on  over-the-counter  pain  medications,  along  with  muscle \nrelaxers that he has been prescribed for his back. \n Claimant’s understanding is that Dr. Smith took him off work.  He is now simply \nwaiting  for  approval  to  have  these  two  operations.  It  is  his  belief  that  without  these \n\nGOLDEN – H404760 \n \n13 \n \nsurgeries,  he  will  be  unable  to  resume  his  duties  as  a  law  enforcement  officer.    He \nreasoned  that  his  duty  belt  and  other  equipment  would  be  too  difficult  to  carry  in  his \ncurrent  condition, and that  physical  activities such as  handling a  suspect  would not  be \nphysically  possible.    Claimant  denied  suffering  any  other  injury  that  has  caused  his \ncurrent left knee and right shoulder conditions. \n Discussion.   Claimant’s testimony is that he wishes to have  the  two  operations \nthat Dr. Smith has recommended to treat his left knee and right shoulder issues.  I credit \nthis along  with his  other  testimony  as  outlined  above.  A claimant’s testimony is never \nconsidered  uncontroverted.   Nix  v.  Wilson  World  Hotel,  46  Ark.  App.  303,  879  S.W.2d \n457 (1994).  The determination of a witness’ credibility and how much weight to accord \nto that person’s testimony are solely up to the Commission.  White v. Gregg Agricultural \nEnt.,  72  Ark.  App.  309,  37  S.W.3d  649  (2001).    The  Commission  must  sort  through \nconflicting  evidence  and  determine  the  true facts.   Id.    In  so  doing,  the  Commission  is \nnot  required  to  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may \naccept  and  translate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it \ndeems worthy of belief.  Id. \n Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states  that  an \nemployer shall provide for an injured employee “such medical . . . services . . . as may \nbe reasonably necessary in connection with the injury received by the employee.”  See \nWal-Mart  Stores,  Inc.  v.  Brown,  82  Ark.  App.  600,  120  S.W.3d  153  (2003).    The \nclaimant  must  prove  by  a  preponderance  of  the  evidence  that the  subject medical \ntreatment  is  reasonable  and  necessary.   Id.; Geo  Specialty  Chem.  v.  Clingan,  69  Ark. \n\nGOLDEN – H404760 \n \n14 \n \nApp.  369,  13  S.W.3d  218  (2000).    The  standard  “preponderance  of  the  evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947).  What constitutes reasonable and necessary medical treatment is a \nquestion  of  fact  for  the  Commission.   White  Consolidated  Indus.  v.  Galloway,  74  Ark. \nApp.  13,  45  S.W.3d  396  (2001); Wackenhut  Corp.  v.  Jones,  73  Ark.  App.  158,  40 \nS.W.3d 333 (2001). \n In   order   to   prove   his   entitlement   to   the   requested surgeries   and   related \ntreatment,   Claimant   must   prove   that they   are causally   related   to   his stipulated \ncompensable knee and shoulder injuries.  See Pulaski Cty. Spec. Sch. Dist. v. Tenner, \n2013 Ark. App. 569, 2013 Ark. App. LEXIS 601.  Both Drs. Guinn and Smith have opined \nthat Claimant’s left knee and right shoulder problems—which  are  well-documented  in \ntheir  reports  in  evidence—relate  to  the stipulated  work-related June  17,  2023, incident \nwhen  Claimant  fell  while  attempting  to  apprehend  a  suspect.  Per Wal-Mart  v.  Van \nWagner,  337  Ark.  443,  990  S.W.2d  522  (1999),  medical  evidence  is  not  ordinarily \nrequired to prove causation; but if a medical opinion is offered on causation, the opinion \nmust be stated within a reasonable degree of medical certainty.  Ark. Code Ann. § 11-9-\n102(16)(B)  (Supp.  2023).    But  the  Arkansas  Supreme  Court  in Freeman  v.  Con-Agra \nFrozen  Foods,  344  Ark.  296,  40  S.W.3d  760  (2001)  stated:    “This  court  has  never \nrequired . . . that the magic words ‘within a reasonable degree of medical certainty’ even \nbe used by the doctor.”  Instead, the opinion will pass muster if the opinion language \nused  by  the  physician  goes  beyond  mere  possibilities  and  establishes  the  causal \n\nGOLDEN – H404760 \n \n15 \n \nconnection between the injury/condition in question and Claimant’s work.  Both Guinn \nand Smith in their reports supra met this standard. \n But  the  opinions  of  the  two  doctors diverge  when  it  comes  to  recommending \nsurgical treatment of Claimant’s left knee and right shoulder problems.  Guinn  did  not \nrecommend   that   Claimant   be   operated   on   for   these   conditions.      Instead,   he \nacknowledged that Claimant was still having knee and shoulder symptoms and had not \nhad  significant  improvement,  but  opted  to  release  him  from  treatment  anyway  without \nany  further  recommendations—despite  the  fact  that  early  on,  he  had  stated that \nClaimant  would  “most  likely”  need  surgery  on  his  shoulder  in  order  to  obtain  lasting \nrelief.    Smith,  on  the  other  hand,  having  benefits  of  the  same  diagnostic  studies,  has \nopined that  surgery  is appropriate  at  this  point because  of  the  well-documented  failure \nof  conservative  treatment.    After  close  scrutiny  of  the  evidence,  I  credit  the  opinion  of \nDr.  Smith  over  that  of  Dr.  Guinn  on  this.    The  Commission  is  authorized  to  accept  or \nreject  a  medical  opinion  and  is  authorized  to  determine  its  medical  soundness  and \nprobative  value.   Poulan  Weed  Eater  v.  Marshall,  79  Ark.  App.  129,  84  S.W.3d  878 \n(2002); Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \n\nGOLDEN – H404760 \n \n16 \n \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson  Foods,  Inc.,  51  Ark.  App.  100,  911  S.W.2d  593  (1995); Artex, supra.    The \nevidence adduced above shows that the surgeries and related treatment outlined by Dr. \nSmith above to address his left knee and right shoulder injuries meet this standard, and \nthus are reasonable and necessary.  In short, Claimant has met his evidentiary burden \nand by establishing by  a  preponderance  of  the  evidence  his  entitlement  to  these \nprocedures and related treatment at the expense of Respondents. \nCONCLUSION AND AWARD \n Respondents are directed to pay/furnish benefits in accordance with the findings \nof fact and conclusions of law set forth above.  All accrued sums shall be paid in a lump \nsum  without  discount,  and  this  award  shall  earn  interest  at  the  legal  rate  until  paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2002).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":27917,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H404760 BRUCE K. GOLDEN, EMPLOYEE CLAIMANT CITY OF McCRORY, SELF-INSURED EMPLOYER RESPONDENT ARK. MUN. LEAGUE, THIRD-PARTY ADM’R RESPONDENT OPINION FILED JUNE 18, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 2, 2025, in Jonesbor...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","knee","back","concussion","fracture","rotator cuff"],"fetchedAt":"2026-05-19T22:39:45.204Z"},{"id":"alj-H206803-2025-06-17","awccNumber":"H206803","decisionDate":"2025-06-17","decisionYear":2025,"opinionType":"alj","claimantName":"Kristopher Worrall","employerName":"Powell Feed & Milling Co., Inc","title":"WORRALL VS. POWELL FEED & MILLING CO., INC. AWCC# H206803 June 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WORRALL_KRISTOPHER_H206803_20250617.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WORRALL_KRISTOPHER_H206803_20250617.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H206803 \n \nKRISTOPHER WORRALL, Employee CLAIMANT \n \nPOWELL FEED & MILLING CO., INC., Employer RESPONDENT \n  \nMIDWEST INSURANCE COMPANY, Carrier RESPONDENT \n \n OPINION/ORDER FILED JUNE 17, 2025  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by JASON M. HATFIELD, Attorney, Fayetteville, Arkansas. \n \nRespondent represented by MICHAEL C. STILES, Attorney, Little Rock, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn March  16,  2023, Jason  Hatfield, claimant’s attorney, filed a  Form AR-C  requesting \nvarious compensation benefits in which he alleged injuries to his left arm and neck on or about \nSeptember  15,  2022.  A  hearing  was  requested  on  February  22,  2024;  however,  the  claimant \npassed away before the hearing was set and Mr. Hatfield withdrew the claimant’s request for a \nhearing. No further action was taken in this claim.   \nOn December  31,  2024,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim be dismissed for lack of prosecution. A hearing was scheduled for April 22, 2025. Notice \nof  that  hearing  was  sent  to  the  claimant’s widow by  certified  mail,  return  receipt  requested  on \nFebruary  27,  2025. United  States  Postal  Department  records  indicate  that  claimant’s  widow \nreceived  and  signed  for  the  notice  on March  4,  2025.  Despite  having  received  notice  of  the \nscheduled hearing, no one representing the claimant’s estate appeared at the hearing. \n\nWorrall – H206803 \n2 \n \nMr.  Hatfield  attended  the  hearing  and  indicated  that  none  of  the  claimant’s  family \nmembers  have  contacted  him  regarding  pursuing  his  claim  any  further;  therefore,  he  had  lost \nstanding to pursue this claim. \n After my review of respondent’s Motion to Dismiss, Mr. Hatfield’s response thereto that \nhe is blocked from pursing this claim by the claimant’s death, and the failure of anyone from the \nclaimant’s estate to appear at the scheduled hearing, as well as all other matters properly before \nthe Commission, I  find that respondent’s Motion to Dismiss this claim should be and hereby is \ngranted pursuant to A.C.A. §11-9-702(a)(4).  This dismissal is without prejudice.    \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2541,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H206803 KRISTOPHER WORRALL, Employee CLAIMANT POWELL FEED & MILLING CO., INC., Employer RESPONDENT MIDWEST INSURANCE COMPANY, Carrier RESPONDENT OPINION/ORDER FILED JUNE 17, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Springdale, Washingt...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T22:39:43.117Z"},{"id":"alj-H302335-2025-06-10","awccNumber":"H302335","decisionDate":"2025-06-10","decisionYear":2025,"opinionType":"alj","claimantName":"John Boman","employerName":"Central Maloney","title":"BOMAN VS. CENTRAL MALONEY AWCC# H302335 June 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BOMAN_JOHN_H302335_20250610.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOMAN_JOHN_H302335_20250610.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM No H302335 \n \nJOHN BOMAN, EMPLOYEE        CLAIMANT \n \nCENTRAL MALONEY, INC., SELF-INSURED EMPLOYER       RESPONDENT \n \nRISK MANAGEMENT RESOURCES, TPA          RESPONDENT \n \n \n \nOPINION & ORDER FILED 10 JUNE 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 13 March 2025 in Pine Bluff, Arkansas. \n \nThe claimant was represented by Mr. Gregory R. Giles. \n \nThe respondents were represented by Mr. Guy A. Wade. \n \nSTATEMENT OF THE CASE \n \n A Prehearing Order was filed on 27 June 2024 and admitted to the hearing record \nwithout objection as Commission’s Exhibit No 1. Consistent with that Order, the parties \nagreed to the following: \nSTIPULATIONS \n \n1. The Commission has jurisdiction over this claim. \n \n2. The self-insured employer/employee/TPA relationship existed at all relevant \ntimes, including on 2 December 2022, when the claimant suffered an injury \nin the workplace. \n \n3. The claimant’s average weekly wage of $516.25 would entitle him to weekly \nbenefits in the amounts of $344 for temporary total disability (TTD) and $258 \nfor permanent partial disability (PPD).\n1\n \n \n4. The respondents deny that the claimant suffered a compensable injury and \nare, thus, not liable for any medical or indemnity benefits. \n \n \n \n \n1\n These amounts were agreed to at the beginning of the hearing. [TR at 15.] \n\nBOMAN- H302335 \n2 \n \nISSUES \n \n1. Whether the claimant sustained a compensable injury by specific incident to \nhis left index finger. \n \n2. Whether the claimant is entitled to reasonable and necessary medical \ntreatment associated with a compensable injury. \n \n3. Whether the claimant is entitled to TTD benefits from 3 December 2022 to 31 \nMay 2023. \n \n4. Whether the claimant is entitled to an attorney’s fee. \n \nAll other issues have been reserved. \n \nCONTENTIONS \n \nThe Prehearing Order incorporated by reference the following contentions from the \nparties’ prehearing information: \nThe claimant contends that he suffered a compensable injury to his \nleft index finger with partial amputation on 2 December 2022 during the \ncourse and scope of his employment with Central Maloney. He contends that \nthe medical treatment he has received to date has been reasonable and \nnecessary and related such that the respondents should be ordered to pay for \nthose services.  \n \nThe claimant contends that he is entitled to temporary total disability \nbenefits from 3 December 2022 to on or about 31 May 2023, following \ncompletion of his physical therapy.\n2\n  \n \nThe claimant is entitled to an attorney’s fee. \n \nThe respondents contend that the claimant did not sustain a \ncompensable injury within the course and scope of his employment. They \ncontend that a positive drug test within two hours of the accident shows that \nthe claimant was intoxicated at the time of the injury and that they are not \nresponsible for the payment of any medical or indemnity benefits. \n \n \n \n \n \n \n \n2\n The claimant withdrew and reserved a contention included in his prehearing filing that he \nwas also entitled to PPD benefits. \n\nBOMAN- H302335 \n3 \n \nFINDING OF FACTS AND CONCLUSIONS OF LAW \n \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witness, observing his demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n \n2. The stipulations as set forth above are accepted. \n \n3. Because the claimant’s post-accident drug screen returned positive for \nmarijuana metabolites, a presumption exists under Ark. Code Ann. § 11-9-\n102(4)(B)(iv) that his injury was substantially occasioned by the use of illegal \ndrugs. \n \n4. The claimant has failed to rebut the presumption that his injury was \nsubstantially occasioned by the use of illegal drugs and has, therefore, failed \nto prove by a preponderance of the evidence that he suffered a compensable \ninjury. \n \n5. Because of the finding above, the claims for medical and indemnity benefits \nassociated with a compensable injury are moot and will not be addressed.  \n \n6. The claim for a controverted attorney’s fee is also moot and will not be \naddressed. \n \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \n\nBOMAN- H302335 \n4 \n \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nThe claimant has failed to prove that he suffered a compensable injury on 2 \nDecember 2022. He was treated at a local emergency department shortly after the \nworkplace accident. A urine drug screen obtained at the time resulted positive for \nmarijuana metabolites. When illegal drugs are found to be present in an employee’s body \nafter a workplace accident, there is a rebuttable presumption that a causal link existed \nbetween the use of drugs and the injury. The claimant failed to prove by a preponderance of \nthe evidence that the presence that a causal link did not exist between the drugs found in \nhis system and the injury he sustained. His claim for a finding of a compensable injury and \nassociated benefits must, therefore, fail. \nSUMMARY OF THE EVIDENCE \nThe claimant was the only witness to testify. The record consists of the hearing \ntranscript and the following exhibits: Commission’s Exhibit No 1 (the 27 June 2024 \nPrehearing Order); Claimant’s Exhibit No 1 (one index page and 76 pages of various forms \nand records); Claimant's Exhibit No 2 (a three-page abstract of the records in Claimant’s \nExhibit No 1); Respondents’ Exhibit No 1 (one index page and 65 pages of medical records); \nRespondents’ Exhibit No 2 (two pages of medical records that are also found at pages 60 and \n61 of Respondents' Exhibit No 1; the pages in Respondents’ Exhibit No 2 are more legible \nthan those found in Respondents' Exhibit No 1); and Respondents’ Exhibit No 3 (the \ntranscript of Claimant’s 19 September 2023 deposition). \nHearing Testimony \nThe claimant is fifty-eight years old with a high school diploma and about two years \nof college credits. He testified that he had been working for Respondent-employer Central \nMaloney, Inc., for about six months at the time of his injury. His first three months on the \n\nBOMAN- H302335 \n5 \n \njob were through temporary placement agency; but he successfully converted to a full-time \nemployee after working for three months and passing a drug test. The claimant worked as a \nstacker at Central Maloney’s wood plant. He explained that Central Maloney produces \ncomponents for electrical transformers and that he worked on the line that cut down \nlumber for use in shipping pallets. A worker on his line operated a table saw, cutting five-\nfoot boards down into two smaller sections. The claimant and another worker would then \nremove the smaller board sections from the line and stack them off to the side. \nAccording to the claimant, his shift ran from 7:00 AM until 3:30 PM, with a 30-\nminute lunch break usually taking place around noon. He testified that his injury occurred \n“after lunch. Maybe, around 1:30.” [TR at 27.] The claimant stated that his job was to stack \nthe cut board sections; but at the time he hurt himself, he was working at the saw while the \nworker ordinarily responsible for cutting was on a bathroom break.  \nQ:  And describe for us what happened? Tell us what happened on that day \nas you were directing the wood into the saw? \nA:  Well, as I was pushing the wood through, I was keeping my—you know, \nkeeping my eye on my hands and my right hand, you know, as I’m pushing, \nyou know. There was just a little push, and I just lost the step to go—you \nknow, I—I just got caught. \nQ:  So... \nJudge: Your left hand got caught? \nA:  My left—you know, I’m watching my right hand... and my left hand, you \nknow, somehow got caught, you know, and I don’t know how it missed the \nother four fingers.... \n \n[TR at 30.] \n After reporting the injury, the claimant was taken to the emergency department at \nJefferson Regional Medical Center by the company nurse. He testified, “my finger was cut \nto the bone, barely hanging off. I mean on a scale of 1 to 10, it’s a 13.” [TR at 34.] The \nclaimant further testified that a representative from the respondents arrived and requested \na urine sample.  \n\nBOMAN- H302335 \n6 \n \nQ:  Did you try to give her a sample there in the room, while she watched or \ndid you go [to] a bathroom to do that? \n A:  I went to the bathroom. \n Q:  And tell us what happened in the bathroom. \n A:  I went to the bathroom with the cup and put water in it. \n Q:  Did you put any urine in the cup? \n A:  I attempted to. \n Q:  Did you get some urine in the cup? \n A:  I might of got a little. \n Q:  And why did you put water in the cup at that time? \nA:  I was in [distress]. I mean, they – she was telling me they were gonna \ndo— \n \n[TR at 36.] He explained that he believed he would be denied all treatment unless and until \nhe provided some sort of sample. So he put water in the cup. The claimant stated that the \nrepresentative, aware of his attempted deception, threw away the water-filled cup. “She \nasked me for another sample, but by then, I gave my hand to the nurse, and she gave that \nshot, and then, she just got upset and walked out.” [TR at 41.] He denied providing another \nurine sample. His finger was sewn up by a nurse and he was discharged from the \nemergency department. \n The claimant testified that his finger required a follow-up procedure a couple of days \nlater. He was restricted to light duty afterwards but testified that he was terminated after \nthe accident. \n He continued to seek treatment, including outpatient therapy, on his own. He denied \nbeing able to work at the time and had not yet worked at the time of his last physician visit \non 20 April 2023. He sought to draw unemployment benefits around that time, but benefits \nwere not awarded. He acknowledged doing some odd jobs for money, but stated that his \ninjury limited his work options. \n The claimant admitted past marijuana use. But he denied using marijuana at the \ntime of his accident. “No, not for at least seven months, because I had a—is – December was \nmy 90 probation, ‘cause I was coming up for a bonus; so I knew I was gonna be tested.” [TR \n\nBOMAN- H302335 \n7 \n \nat 46.] He denied any job performance issues or concerns about his sobriety while on the \njob. \n On cross-examination, the claimant admitted that he was not truthful during his \ndeposition when he claimed that he had earned an associate’s degree in criminal justice. He \nalso acknowledged that the documentation showed that the accident occurred at 11:00 AM \nand before lunch, not after lunch and around 1:30 PM as he had earlier testified. He could \nnot account for a discrepancy in his hearing testimony about applying for unemployment \nbenefits versus denying the same while providing answers under oath in discovery. \n Discussing the specimen collection paperwork [Resp. Ex. No 2], the claimant \nacknowledged his correct Social Security Number, that the phone number written on the \nform “might have been [his] old number” and what appeared to be his written name and \nsignature. [TR at 58.] He denied, however, that he willingly or intentionally signed his \nname. “I was—when I was at the hospital, the lady took my hand and was making me write \nto sign some papers there, but I didn’t know what I was signing.” [TR at 59.] The claimant \ntried to explain his differing testimony on whether the sample cup he provided contained \nonly tap water or tap water and some urine. Regardless of the sample’s ultimate \nconstitution, he made it clear that he did not intend to provide a valid sample at the time it \nhad been requested. \n The claimant did not remember seeing the drug screen results at his deposition; nor \ndid he recall his explanation given at the time for the positive result—that he had been \naround others who were smoking marijuana. He also acknowledged that in his deposition \nhe testified that he had not smoked marijuana in a year versus the seven months he had \ntestified about earlier at the hearing. The claimant denied having a medical marijuana \ncard. \n \n\nBOMAN- H302335 \n8 \n \nMedical Evidence \n The specimen collection forms include the claimant’s name and Social Security \nNumber. Boxes are checked indicating that his identification was verified and that the \n“Reason for Test” was “Post-Accident.” The claimant’s printed name, signature, and a 2 \nDecember 2022 date appear at the bottom of the form. It also shows “Location: ER” and \n“EMPLOYER: Central Maloney.” The Specimen Identification Number is listed as 2966809. \n[Resp. Ex. No 2.] \n The identifying information on the drug testing report matched that from the \nspecimen collection forms. The relevant portions of that report include: \nUrine Substance Abuse Panel \n. . . \nAmphetamines   Negative \nCocaine Metabolites   Negative \nMarijuana Metabolites  Positive \nOpiates    Negative \nPhencyclidine   Negative \n \nUrine Quantitative Results \n \n MARIJUANA METABOLITE 184 ng/mL \n \nThe detection threshold for marijuana at the Initial Test Level was 50 ng/mL and the \nthreshold for the MS Confirm Test Level was 15 ng/mL. \n[Resp. Ex. No 1 at 65.] \nDISCUSSION \n The claimant has alleged that he sustained a compensable injury to his left index \nfinger on 2 December 2022. The respondents have denied liability under Ark. Code Ann. § \n11-9-102(4)(B)(iv), which provides: \n(B) “Compensable injury” does not include: \n \n. . .  \n \n\nBOMAN- H302335 \n9 \n \n(a) Injury where the accident was substantially occasioned by the use of \nalcohol, illegal drugs, or prescription drugs used in contravention of \nphysician's orders. \n \n(b) The presence of alcohol, illegal drugs, or prescription drugs used in \ncontravention of a physician's orders shall create a rebuttable presumption \nthat the injury or accident was substantially occasioned by the use of alcohol, \nillegal drugs, or prescription drugs used in contravention of physician's \norders. \n \n(c) Every employee is deemed by his or her performance of services to have \nimpliedly consented to reasonable and responsible testing by properly trained \nmedical or law enforcement personnel for the presence of any of the \naforementioned substances in the employee's body. \n \n(d) An employee shall not be entitled to compensation unless it is proved by a \npreponderance of the evidence that the alcohol, illegal drugs, or prescription \ndrugs utilized in contravention of the physician's orders did not substantially \noccasion the injury or accident. \n \n The presence of marijuana metabolites in the claimant’s body after the accident \ncreates the presumption that his injury was substantially occasioned by his use of that \nsubstance. He must, therefore, prove by a preponderance of the evidence that the illegal \ndrugs did not substantially occasion the injury or accident. Ark. Code Ann. § 11-9-\n102(4)(B)(iv)(d). The phrase \"substantially occasioned\" by the use of illegal drugs requires \nthat there be a direct causal link between the use of the drugs and the injury in order for \nthe injury to be noncompensable. Waldrip v. Graco Corp., 101 Ark. App. 101, 270 S.W.3d \n891 (2008) (citing ERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 \n(1998)). \n The claimant did not put on any evidence showing that the accident was not related \nto the presence of marijuana in his system. He could not explain how or why the accident \nhappened, besides that he was not looking at his left hand when it came into contact with \nthe saw blade. Nor did he make any effort to justify why he was performing another \nemployee’s work duties—running a table saw when his job was, admittedly, to be at the \nother end of the line stacking boards—at the time of the accident. \n\nBOMAN- H302335 \n10 \n \n Instead, he argued that the drug testing result that showed marijuana in his system \nmust be fraudulent because he (1) filled the specimen cup with only or mostly tap water \nfrom the hospital restroom and (2) he supposedly witnessed his specimen cup being thrown \ninto the trash by the respondent’s representative responsible for collecting his sample. That \nsame representative, he said, forged or coerced his signature on the specimen collection \nforms. He acknowledged, however, that the identifying information on the specimen \ncollection forms matched the identifying information on the testing report and that his \nsignature did appear on the specimen collection forms. I do not find the claimant to be a \ncredible witness. \n The claimant was not even credible on the most basic of details around his injury—\nthe time that it occurred. Despite numerous records in evidence clearly showing that he \nwas injured around 11:00 in the morning, before his lunch break, he testified on direct \nexamination that the accident occurred around 1:30 in the afternoon, which would have \nbeen after his lunch break for that day. He was asked again on cross-examination about the \ntime of the accident, and his testimony remained out of step with the verifiable facts of the \nmatter. \nThe claimant did not deny past marijuana use, though his stories around how long it \nhad been since his last time using and the accident varied. At his deposition, the claimant \nsuggested that if his sample was positive for marijuana, it must have been from being \naround others who were smoking it. At the hearing, though, he refused to entertain the \nnotion that his sample was even tested. And he denied having any recollection about the \npositive drug result being discussed at his deposition. \n Regarding the urine specimen that was collected and tested, his testimony again \ndiffers from the credible evidence in the record. My review of the medical evidence does not \nsupport his story about treatment being withheld until he provided a urine sample. Nor do \n\nBOMAN- H302335 \n11 \n \nthose records relate anything about a confrontation around an adulterated sample being \ndisposed of and his inability or refusal to provide a valid sample for testing. Instead, the \nevidence shows that his identity was confirmed as the donor of a collected specimen and \nthat the identifying information on the test report (that shows marijuana metabolites in his \nsystem) matches that of the collected specimen.  \n In short, the credible evidence establishes the presumption that the claimant’s \ninjury was substantially occasioned by illegal drugs; and the claimant has failed to rebut \nthat presumption with the necessary preponderance of evidence to the contrary. His injury \nis, therefore, not compensable. His claim must be denied and dismissed, accordingly. \nBecause he has failed to prove by a preponderance of the evidence that he suffered a \ncompensable injury, his remaining claims need not be addressed. \nCONCLUSION \n The claimant has failed to prove by a preponderance of the evidence that he \nsustained a compensable injury. Accordingly, his claim is DENIED and DISMISSED. \n IT IS SO ORDERED. \n       ______________________________________ \n       JayO. Howe \n       Administrative Law Judge","textLength":19971,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM No H302335 JOHN BOMAN, EMPLOYEE CLAIMANT CENTRAL MALONEY, INC., SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION & ORDER FILED 10 JUNE 2025 Heard before Arkansas Workers’ Compensation Commission Administrative Law Judge JayO. H...","outcome":"denied","outcomeKeywords":["dismissed:2","denied:5"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:39:36.913Z"},{"id":"alj-H406235-2025-06-10","awccNumber":"H406235","decisionDate":"2025-06-10","decisionYear":2025,"opinionType":"alj","claimantName":"Leslie Loucks","employerName":"Bass Pro Group","title":"LOUCKS VS. BASS PRO GROUP AWCC# H406235 June 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LOUCKS_LESLIE_H406235_20250610.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOUCKS_LESLIE_H406235_20250610.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H406235 \n \nLESLIE LOUCKS, Employee CLAIMANT \n \nBASS PRO GROUP, Employer RESPONDENT \n  \nCORVEL ENTERPRISE COMP., INC.., Carrier RESPONDENT \n \n OPINION/ORDER FILED JUNE 10, 2025  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Springdale, \nWashington County, Arkansas. \n \nClaimant represented  by FREDERICK  S.  SPENCER,  Attorney, Mountain  Home,  Arkansas; \nalthough not present at hearing. \n \nRespondent represented by DAVID C. JONES, Attorney, Little Rock, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn September  21,  2024, Frederic  Spencer,  claimant’s  attorney,  filed a  Form AR-C \nrequesting  various  compensation  benefits in  which she alleged  injuries  to her back,  hands,  and \nfeet; however, no hearing was requested. No further action was taken in this claim.  \nOn April  15,  2025,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this  claim \nbe dismissed for lack of prosecution. A hearing was scheduled for May 13, 2025. Notice of that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on April  17,  2025 \nUnited States Postal Department records indicate that claimant received and signed for the notice \non April 21, 2025. Despite having received notice of the scheduled hearing, the claimant failed to \nappear at the hearing. \n\nLoucks – H406235 \n2 \n \nMr. Spencer indicated by email of a letter dated April 17, 2025, that he would waive his \nappearance at the hearing and further indicated that he had no objection to the Motion to Dismiss \n“WITHOUT prejudice.”    \n After my review of respondent’s Motion to Dismiss, Mr. Spencer’s response thereto that \nhe had  no  objection  to  the  motion  to  dismiss  without  prejudice,  and  the claimant’s failure  to \nappear  at  the  scheduled  hearing, as  well  as all  other  matters  properly  before  the  Commission,  I \nfind that respondent’s Motion to Dismiss this claim should be and hereby is granted pursuant to \nA.C.A. §11-9-702(a)(4).  This dismissal is without prejudice.     \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2314,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H406235 LESLIE LOUCKS, Employee CLAIMANT BASS PRO GROUP, Employer RESPONDENT CORVEL ENTERPRISE COMP., INC.., Carrier RESPONDENT OPINION/ORDER FILED JUNE 10, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Springdale, Washington County, Arkans...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:39:38.976Z"},{"id":"alj-H402011-2025-06-10","awccNumber":"H402011","decisionDate":"2025-06-10","decisionYear":2025,"opinionType":"alj","claimantName":"Carisa Wilson","employerName":"Jb Hunt Transport","title":"WILSON VS. JB HUNT TRANSPORT AWCC# H402011 June 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WILSON_CARISA_H402011_20250610.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILSON_CARISA_H402011_20250610.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H402011 \n \nCARISA WILSON, Employee      CLAIMANT \n \nJB HUNT TRANSPORT, Employer     RESPONDENT \n \nESIS, INC. Carrier/TPA       RESPONDENT \n \n \n OPINION FILED JUNE 10, 2025  \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in Springdale, \nWashington County, Arkansas. \n       \nClaimant represented by JARID M. KINDER, Attorney at Law, Fayetteville, Arkansas; although \nwaiving appearance at the hearing. \n \nRespondent represented by JOSEPH H. PURVIS, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn April  22,  2024, Jarid  Kinder, claimant’s attorney, filed a  Form AR-C  requesting \nvarious  compensation  benefits in  which  she  alleged  injuries  to  her head  on  or  about  March  1, \n2024. Mr. Kinder requested a hearing on May 30, 2024. A prehearing conference was held, and a \nhearing was scheduled for August 27, 2024. On August 12, 2024, the hearing was cancelled, and \nno further action has been taken in this claim. \nOn April 3, 2025, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for May  20,  2025.  Notice  of  that \nhearing was sent to the claimant by certified mail, return receipt requested on April 9, 2025. That \nnotice was returned by the United States Postal Department with the notation, “Return to Sender.  \nNo  Mail  Receptacle.  Unable to Forward.” Mr.  Kinder indicated by  email  dated April  7,  2025, \n\nWilson – H402011 \n \nthat he would waive his appearance at the hearing and further indicated that he had no objection \nto the Motion to Dismiss without prejudice.    \n After my review of respondent’s Motion to Dismiss, Mr. Kinder’s response  thereto  that \nshe had no objection to the motion to dismiss without prejudice, and the claimant’s failure to \nappear  at  the  scheduled  hearing,  as  well  as  all  other  matters  properly  before  the  Commission,  I \nfind that respondent’s Motion to Dismiss this claim should be and hereby is granted pursuant to \nA.C.A. §11-9-702(a)(4).  This dismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED.    \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2779,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H402011 CARISA WILSON, Employee CLAIMANT JB HUNT TRANSPORT, Employer RESPONDENT ESIS, INC. Carrier/TPA RESPONDENT OPINION FILED JUNE 10, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant represen...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:39:41.050Z"},{"id":"alj-H404270-2025-06-09","awccNumber":"H404270","decisionDate":"2025-06-09","decisionYear":2025,"opinionType":"alj","claimantName":"Alexander Bolanis","employerName":"City Of Russellville","title":"BOLANIS VS. CITY OF RUSSELLVILLE AWCC# H404270 June 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BOLANIS_ALEXANDER_H404270_20250609.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOLANIS_ALEXANDER_H404270_20250609.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404270 \n \nALEXANDER SHIPLEY BOLANIS, Employee CLAIMANT \n \nCITY OF RUSSELLVILLE, Employer RESPONDENT \n \nMUNICIPAL LEAGUE WC PROGRAM, Carrier RESPONDENT \n \n \n \n OPINION FILED JUNE 9, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant unrepresented and appearing pro se. \n \nRespondents represented by MARY K. EDWARDS, Attorney at Law, North Little Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This  case  comes  on  for  review following a hearing on respondents’ Motion to \nDismiss.  \n Claimant  suffered  an  admittedly  compensable  injury  to  his  knee  on  April  20, \n2024.  On  July  3,  2024,  claimant  filed  Form  AR-C  requesting  medical  benefits.  In  an \norder  filed  July  31,  2024,  claimant  was  granted  a  Change  of  Physician  to  Dr.  Samuel \nMoore. \n No  further  action was  taken in  this  claim  after  the  Change  of  Physician  Order \nuntil respondent filed a Motion to Dismiss on March 6, 2025. A hearing was scheduled \non the respondent’s motion for May 22, 2025. Notice of the hearing was sent to claimant \n\nShipley Bolanis – H404270 \n \n-2- \nby  certified  mail  and  was  delivered  on  April  3,  2025.  Claimant  did  not  appear  at  the \nhearing and has not responded to the respondent’s Motion to Dismiss.  \n After my review of the respondents’ motion, the claimant’s failure to respond or to \nappear at the hearing, and all other matters properly before the Commission, I find that \nrespondents motion to dismiss this claim should and hereby is granted. This dismissal is \npursuant to Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":1844,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404270 ALEXANDER SHIPLEY BOLANIS, Employee CLAIMANT CITY OF RUSSELLVILLE, Employer RESPONDENT MUNICIPAL LEAGUE WC PROGRAM, Carrier RESPONDENT OPINION FILED JUNE 9, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Count...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:39:30.647Z"},{"id":"alj-H400696-2025-06-06","awccNumber":"H400696","decisionDate":"2025-06-06","decisionYear":2025,"opinionType":"alj","claimantName":"Ray Branch","employerName":"Jacksonville North Pulaski School District","title":"BRANCH VS. JACKSONVILLE NORTH PULASKI SCHOOL DISTRICT AWCC# H400696 June 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRANCH_RAY_H400696_20250606.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRANCH_RAY_H400696_20250606.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H400696 \n \n \nRAY C. BRANCH, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nJACKSONVILLE NORTH PULASKI SCHOOL DISTRICT,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nARKANSAS SCHOOL BOARDS ASSOCIATION – SIF,   \nCARRIER                                                                                                                RESPONDENT                                                                                                      \n          \nOPINION FILED JUNE 6, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the Honorable Shelia F. Campbell, Attorney at Law, North Little Rock, \nArkansas.         \n \nRespondents represented  by the  Honorable  Guy Alton  Wade, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on May 28, 2025, in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (d) (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule \n099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law. \nAlthough the Claimant appeared at the hearing, no testimony was taken.   \nTherefore,  the record  consists  of  the  transcript  of  the May  28,  2025, hearing  and  the \ndocuments  contained  therein.   Also,  the  entire Commission’s Exhibit  1consists  of twelve  (12) \n\nBranch – H400696 \n \n2 \n \npages; and the Respondents’ Hearing Exhibit Packet consisting of eight (8) pages was marked as \nRespondents’ Exhibit 1.     \n                                                                 Discussion \n On January 30,  2024, the Claimant’s attorney filed with  the Commission a claim for \nArkansas workers’ compensation benefits via a Form AR-C.  Specifically, the Claimant alleged \nthat he sustained an injury to his back on September 5, 2023.  The Claimant’s attorney checked \nboxes for workers’ compensation benefits in the form of both initial and additional benefits.   \n  The respondent-insurance-carrier filed a Form AR-2 with the Commission on February 7, \n2024, wherein   they denied compensability of   the   claim on   the   grounds of “incomplete \ninvestigation.” \n On July 11, 2024, the Claimant’s attorney wrote to the Commission to request a hearing \non the merits of the claim. \n The claim was transferred to my office for a full hearing.  Preliminary Questionnaires and \nNotices  were  mailed  to  the  parties  with  deadlines  for  filing  timely  responses.  A  prehearing \ntelephone conference was held in this matter on  September 11, 2024.    At that time, the parties \nagreed to return the claim to the Commission’s general files pending completion of discovery, \nwhich was done.   \n Since this time, there has been no bona fide action on the part of the Claimant to prosecute \nthis claim or otherwise pursue any benefits.  \nOn April 1, 2025, the Respondents filed with the Commission a letter-motion asking that \nthe claim be dismissed for a lack of prosecution.  The Respondents notified the Claimant of their \nmotion for dismissal by way of mailing a copy of it to his attorney.   \n\nBranch – H400696 \n \n3 \n \nThe  Commission  sent  a letter-notice to  the  Claimant and  his  attorney,  on  April  8,  2025.   \nPer this correspondence, the Claimant was given a deadline of twenty (20) days, for filing a written \nresponse to the Respondents’ motion.  \n There was no response from the Claimant. \nTherefore, pursuant to a Hearing Notice dated May 5, 2025, the Commission notified the \nparties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim due \nto  a  lack  of  prosecution.   Said hearing  was  scheduled  for May  28,  2025, at 11:00 a.m.,  at the \nArkansas Workers’ Compensation Commission, in Little Rock, Arkansas. \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Claimant and his attorney appeared at the hearing, but no testimony was taken.  \nNevertheless, the Respondents appeared through their attorney.   \nCounsel for  the  Respondents noted that  the Claimant  has  failed  to timely prosecute  his \nclaim for workers’ compensation benefits.  Counsel essentially  stated  that there  has  been  no \nattempt on the part of the Claimant to move forward with a hearing since October 2024.  At that \ntime, the Claimant’s deposition was taken.  Obviously, counsel for the Respondents moved that \nthis claim be dismissed without prejudice under the provisions of Ark. Code Ann. §11-9-702, and \nArkansas Workers’ Compensation Commission Rule 099.13.  Counsel for the Claimant asked that \nthe claim be dismissed without prejudice. \nThe record before me proves that the Claimant has failed to timely prosecute his claim for \nworkers’ compensation benefits.  The Claimant does  not object  to his claim  being dismissed \nwithout prejudice.  Therefore, per Ark. Code Ann. §11-9-702 and Rule 099.13 of this Commission, \nthis claim is hereby dismissed, without prejudice, to the refiling of it within the limitation period \nspecified by law.   \n\nBranch – H400696 \n \n4 \n \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission, letter-motion to dismiss this \nclaim, for which a hearing was held. \n \n3. The evidence preponderates that the Claimant has failed to timely prosecute \nhis claim for workers’ compensation benefits.  The Claimant consents to his \nclaim being dismissed without prejudice.   \n \n4. Appropriate notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion  to  dismiss  is hereby granted without prejudice, \npursuant to Ark. Code Ann. §11-9-702 and Commission Rule 099.13, to the \nrefiling of it within the limitation period specified by law.  \n \nORDER \n \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to the provisions of Ark. Code Ann. §11-9-702 and Commission Rule \n099.13, without prejudice, to the refiling of it within the appropriate limitation period. \n IT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":7244,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H400696 RAY C. BRANCH, EMPLOYEE CLAIMANT JACKSONVILLE NORTH PULASKI SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION – SIF, CARRIER RESPONDENT OPINION FILED JUNE 6, 2025 Hearing held before Administrative Law Judge Chandra L. Black, ...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:39:32.725Z"},{"id":"alj-H405444-2025-06-06","awccNumber":"H405444","decisionDate":"2025-06-06","decisionYear":2025,"opinionType":"alj","claimantName":"London Talley","employerName":"Truckmat Corporation","title":"TALLEY VS. TRUCKMAT CORPORATION AWCC# H405444 June 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TALLEY_LONDON_H405444_20250606.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TALLEY_LONDON_H405444_20250606.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        CLAIM NO.: H405444 \n \nLONDON M. TALLEY,   \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nTRUCKMAT CORPORATION,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                  \n \nHARTFORD UNDERWRITERS INS. COMPANY,  \nINSURANCE COMPANY                                                                                      RESPONDENT  \n \nGALLAGHER BASSETT SERVICES, INC., \nTHIRD PARTY ADMINISTATOR                                                                        RESPONDENT \n \n        \n                                              OPINION FILED JUNE 6, 2025    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant, pro se, failed to appear at the hearing. \n \nRespondents represented by the Honorable Rick Behring, Jr., Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis  matter  comes  before  the  Commission pursuant  to  a motion  to dismiss filed by the \nRespondents.  A hearing on the motion was conducted on May 28, 2025, in Little Rock, Arkansas.  \nThus, presently the sole issue for determination is whether this claim should be dismissed due to \nthe Claimant’s failure  to prosecute it  under Ark.  Code  Ann.  §11-9-702 (Repl.  2012),  and/or \nArkansas Workers’ Compensation Commission Rule 099.13. \n The record consists of the May 28, 2025, hearing transcript and documentary evidence.   \nIn that regard, Commission’s Exhibit 1 encompassing nine (9) actual pages, as it has which has  \nbeen marked accordingly, and Respondents’ Exhibit 1 consisting of nine (9) numbered pages was \n\nTalley – H405444 \n \n \n2 \n \nthus, so designated.   \n Reasonable notice of the dismissal hearing was tried on all the parties in the manner  \nestablished by applicable law.   \nNo testimony was taken at the hearing.  \n                        Background \nThe record reflects the following procedural history: \n On August  22,  2024,  the  Claimant’s  former  attorney filed  a  Form  AR-C,  with  the \nCommission, alleging that the Claimant sustained an accidental injury, on August 8, 2024, while \nworking  for  the  respondent-employer.  According  to  this document, the Claimant allegedly \nsustained compensable injuries when  he  fell  from  a  ladder  injuring  his  brain,  back,  neck, and \nshoulder.  Per this form, the Claimant requested both initial and additional benefits in the form of \ncompensation, medical expenses, and an attorney’s fee.    \nThe  Respondents  initially  filed  a  Form  AR-2, with  the  Commission controverting this \nclaim  in  its  entirety.   Per  this  document,  the  Respondents stated the  following grounds  for \ncontroverting the claim: “Injury did not arise out of and in the scope of employment.” \nSubsequently, on November 4, 2024, the Claimant’s attorney filed with the Commission a \nmotion to withdraw as counsel of record for the Claimant in this matter.  On November 22, the \nFull Commission granted this motion for the Claimant’s attorney to withdraw from representing \nhim in this matter.   \nSince the filing of the Form AR-C, the Claimant has failed to prosecute or otherwise pursue \nhis claim for workers’ compensation benefits.  Specifically, it has been more than six (6) months \nsince  the  filing  of  Form  AR-C;  but  thus  far,  the  Claimant has  made  no bona  fide  request  for  a \nhearing with respect to his claim.   \n\nTalley – H405444 \n \n \n3 \n \nAs a result, on March 24, 2025, the Respondents filed with the Commission a Motion to \nDismiss and Incorporated Brief in Support, along with a certificate of service.  Per this verification, \nthe Respondents served a copy of the foregoing pleading on the Claimant by placing a copy of it \nin the mail via the United States Postal Service.   \nSubsequently, on March 25, 2025, I wrote to the Claimant and requested a written response \nto the motion within twenty (20) days.  Said letter was mailed to the Claimant by both first-class \nand certified mail to the address listed by the Claimant with the Commission.   \nPer  tracking  information  received  from  the  Postal  Service, on March  29, 2025, the \ndismissal hearing notice sent by certified mail to the Claimant was delivered to her home address \nas listed above and left with an individual.  However, part of the signature of the recipient of said \nletter is illegible.  The first name is scribbled; but the last name is clearly written and discernible \nto be the Claimant’s last name.  About the letter sent by first-class mail, it has not been returned to \nthe Commission.   \nOn April 16, 2025, my office sent a Notice of Hearing to the parties scheduling this matter \nfor a dismissal hearing on May 28, 2025.   Said hearing notice was sent to the Claimant by both \nfirst-class and certified mail to the same address as before.   \nPer tracking information received from the United States Postal Service, on May 2, 2025, \nthey were unable to find any delivery information for the hearing notice sent to the Claimant via \ncertified  mail. However,  on  May  12,  2025,  the  Post  Office  returned  the  hearing  notice  to  the \nCommission, which was sent to the Claimant via certified mail because the item was “unclaimed.”    \nYet, the notice sent by first-class mail has not been returned to the Commission.  Thus, the evidence \npreponderates that reasonable notice of the dismissal hearing was made upon the Claimant.  \n\nTalley – H405444 \n \n \n4 \n \nTherefore, the dismissal hearing was conducted on the Respondents’ motion to dismiss this \nclaim as formerly scheduled.  Despite having received notice of the dismissal hearing, the Claimant \ndid not appear at the hearing.  However, the Respondents appeared at the hearing through their \nlawyer.  The Respondent’s counsel argued, among other things, for dismissal of this claim because \nthe  Claimant  has made  no bona fide  request for  a hearing or taken  any action to prosecute or \notherwise resolve his claim since the filing of the Form AR-C in November 2024.  Specifically, \nthe attorney for Respondents moved for dismissal without prejudice, under the authority of Ark. \nCode Ann. §11-9-702, and/or Commission Rule 099.13.   \n            Adjudication  \nThe statutory  provisions and Arkansas Workers’ Compensation Rule applicable to the \nRespondents’ motion for dismissal of this claim for workers’ compensation benefits are outlined \nbelow:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 provides:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \n\nTalley – H405444 \n \n \n5 \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \nThe evidence shows that the Claimant has failed to respond to the written notices of this \nCommission, and he did not appear at the hearing to object to the motion.  Moreover, since the \nfiling of the Form AR-C, which was done in August 2024, the Claimant has not made a bona fide \nrequest for a hearing with respect to his claim.  Considering all the foregoing, I am compelled to \nconclude that the Claimant has abandoned his claim for workers’ compensation benefits.   \nAccordingly,  based  on my  review  of  the documentary  evidence,  and  all  other  matters \nproperly before the Commission, I find that the Respondents’ motion  to dismiss  this  claim is \nwarranted  under  the  provisions  of Ark.  Code  Ann.  §11-9-702 (a)(4), §11-9-702 (d),  and Rule \n099.13 of this Commission.  Said dismissal is without prejudice, to the refiling of this claim within \nthe limitation period specified by law. \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. In August 2024, the Claimant filed a Form AR-C with the Commission in \nthis matter asserting his entitlement to workers’ compensation benefits due \nto an alleged accidental injury occurring on August 8, 2024. \n \n\nTalley – H405444 \n \n \n6 \n \n3. Since the filing of the Form AR-C, more than six (6) months have passed, \nand the Claimant has not made a bona fide request for a hearing.    \n \n4. The Respondents filed with the Commission, a motion to dismiss this claim, \nfor which a hearing was held. \n \n5.         Reasonable notice of the motion to dismiss and hearing was had on all the \nparties.  \n \n6.         The evidence preponderates that the Respondents’ motion to dismiss this  \n            claim for want of prosecution is warranted.   \n \n7.         That the Respondents’ motion to dismiss is hereby granted pursuant to Ark.  \n Code Ann. §11-9-702 (a)(4), §11-9-702 (d), and Commission Rule 099.13,   \n without prejudice, to the refiling of the claim within the specified limitation      \n period.   \n \nORDER \nIn accordance with the foregoing findings of fact and conclusions of law, this claim is  \nhereby dismissed without prejudice, pursuant to Ark. Code Ann. §11-9-702 and Commission Rule \n099.13 to the refiling of it within the specified limitation period.        \nIT IS SO ORDERED. \n   \n                                  \n                                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":11504,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H405444 LONDON M. TALLEY, EMPLOYEE CLAIMANT TRUCKMAT CORPORATION, EMPLOYER RESPONDENT HARTFORD UNDERWRITERS INS. COMPANY, INSURANCE COMPANY RESPONDENT GALLAGHER BASSETT SERVICES, INC., THIRD PARTY ADMINISTATOR RESPONDENT OPINION FILED JUNE 6, 2025 Hearing ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["back","neck","shoulder"],"fetchedAt":"2026-05-19T22:39:34.802Z"},{"id":"full_commission-H302489-2025-06-05","awccNumber":"H302489","decisionDate":"2025-06-05","decisionYear":2025,"opinionType":"full_commission","claimantName":"Dane Monger","employerName":"Horseshoe Canyon Ranch, LLC","title":"MONGER VS. HORSESHOE CANYON RANCH, LLC AWCC# H302489 June 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Monger_Dane_H302489_20250605.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Monger_Dane_H302489_20250605.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n CLAIM NO. H302489 \n \nDANE H. MONGER, EMPLOYEE                           CLAIMANT \n \nHORSESHOE CANYON RANCH, LLC, \nEMPLOYER                                 RESPONDENT \n \nBRIDGEFIELD CASUALTY INSURANCE \nCOMPANY, CARRIER                                                                  RESPONDENT \n \nSUMMIT CONSULTING, LLC, TPA                                            RESPONDENT \n \n \nORDER FILED JUNE 5, 2025 \n \nBefore the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. \n \nClaimant represented by the HONORABLE DANIEL E. WREN, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE ZACHARY F. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nORDER \n \n  Presently before the Full Commission is Respondents’ Motion \nto Stay Appeal and Remand for Consideration of Joint Petition for Final \nSettlement.  \n  Respondents and claimant have come to a resolution of this \nmatter, and parties intend to submit a Joint Petition for final Settlement to \nan Administrative Law Judge for consideration. Accordingly, the \nrespondents, without objection from claimant, request the pending appeal to \nthe full commission in this claim be stayed.  \n\nMonger-H302489                  2 \n \n  After consideration of respondents’ motion with no objections \nby the claimant and all other matters properly before the Commission, we \nfind that the respondents’ motion should be granted. Therefore, the appeal \nof the Administrative Law Judge’s Opinion filed October 21, 2024, is stayed \npending approval of a joint petition to be presented to an Administrative \nLaw Judge. Should the joint petition not be granted, the appeal of this claim \nshall resume, and a new briefing schedule be issued.   \n  IT IS SO ORDERED. \n \n    ____________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n    ____________________________________          \n    M. SCOTT WILLHITE, Commissioner \n \n \n    _____________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2046,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302489 DANE H. MONGER, EMPLOYEE CLAIMANT HORSESHOE CANYON RANCH, LLC, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INSURANCE COMPANY, CARRIER RESPONDENT SUMMIT CONSULTING, LLC, TPA RESPONDENT ORDER FILED JUNE 5, 2025 Before the FULL COMMISSION in Little Rock, ...","outcome":"granted","outcomeKeywords":["remanded:1","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.198Z"},{"id":"full_commission-H402896-2025-06-05","awccNumber":"H402896","decisionDate":"2025-06-05","decisionYear":2025,"opinionType":"full_commission","claimantName":"Connie Roberts","employerName":"University Of Arkansas Fayetteville","title":"ROBERTS VS. UNIVERSITY OF ARKANSAS FAYETTEVILLE AWCC# H402896 June 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Roberts_Connie_H402896_20250605.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Roberts_Connie_H402896_20250605.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H402896 \n \nCONNIE ROBERTS, EMPLOYEE  CLAIMANT \n \nUNIVERSITY OF ARKANSAS FAYETTEVILLE, \nEMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED JUNE 5, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MICHAEL L. ELLIG, Attorney at \nLaw, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed February 5, 2025.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The   stipulations   agreed   to   by   the   parties   at   a   pre-hearing \nconference  conducted  on  November  6,  2024  and  contained  in  a \npre-hearing order filed that same date are hereby accepted as fact.  \n \n2. Claimant   has   failed   to   meet   her   burden   of   proving   by   a \npreponderance of the evidence that she suffered a compensable \ngradual onset injury to her right shoulder and arm while employed \nby respondent. \n\n \nROBERTS - H402896  2\n  \n \n \n3. Claimant   has   failed   to   meet   her   burden   of   proving   by   a \npreponderance of the evidence that she suffered a compensable \ninjury to her right shoulder and arm as a result of a specific injury \nwhile employed by respondent. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's February 5, \n2025 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite concurs. \n \n \n\n \nROBERTS - H402896  3\n  \n \n \nCONCURRING OPINION \n \n After my de novo review of the entire record, I concur with the \nmajority Opinion finding that the Claimant failed to prove by a \npreponderance of the evidence that she suffered a compensable specific \nincident or gradual onset injury to her right shoulder while employed by \nRespondent.  I write separately for the benefit of the Claimant.  \n While Claimant clearly suffers from objective problems with her right \nshoulder, there does not appear to be sufficient evidence in the record to \nmeet her burden of proof as to causation of those objective problems.  To \nestablish a compensable specific incident injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence. \nAlternatively, a compensable injury can develop over a period of time or \nresult from rapid repetitive motion.  Ark. Code Ann. § 11-9-102(4)(A)(ii)(a). \nFurther, with regard to a gradual onset injury the compensable injury must \nbe the major cause of the disability or need for treatment.  Ark. Code Ann. § \n\n \nROBERTS - H402896  4\n  \n \n \n11-9-102(4)(E)(ii).  In either situation, a compensable injury must be \nestablished by medical evidence supported by objective findings and \nmedical opinions addressing compensability must be stated within a degree \nof medical certainty.  Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 \nS.W.3d 560 (2002).  In this matter there is insufficient evidence to establish \nthat the Claimant’s objective shoulder problems resulted from her work with \nthe Respondent.  Additionally, based upon the credible evidence it does \nnot appear that the Claimant’s job duties met the requirements of being \nsufficiently rapid and repetitive. \n Therefore, Claimant has not met her burden of proof to establish \ncompensability and I must concur with the majority.  \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":4793,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H402896 CONNIE ROBERTS, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FAYETTEVILLE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 5, 2025 Upon review before the FULL COMMIS...","outcome":"affirmed","outcomeKeywords":["affirmed:2","denied:1"],"injuryKeywords":["shoulder","repetitive"],"fetchedAt":"2026-05-19T22:29:44.203Z"},{"id":"full_commission-H204217-2025-06-05","awccNumber":"H204217","decisionDate":"2025-06-05","decisionYear":2025,"opinionType":"full_commission","claimantName":"Terri Sparks","employerName":"North Arkansas College","title":"SPARKS VS. NORTH ARKANSAS COLLEGE AWCC# H204217 June 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Sparks_Terri_H204217_20250605.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Sparks_Terri_H204217_20250605.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H204217 \n \nTERRI SPARKS, \nEMPLOYEE \n \nCLAIMANT \nNORTH ARKANSAS COLLEGE,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 5, 2025  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nNovember 19, 2024.  The administrative law judge found that the claimant \nfailed to prove she was entitled to additional medical treatment.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant proved she was entitled to medical treatment provided by Dr. \nSteffen, which reasonably necessary treatment included surgery.     \nI.  HISTORY \n Terri Hastings Sparks, now age 59, testified at a deposition of record \nthat she sustained a nonwork-related accident in 2020: \n\nSPARKS - H204217  2\n  \n \n \n  Q.  Tell me what happened. \nA.  I stepped on a cereal bowl of my son’s and slid across the        \nfloor. \nQ.  When did that happen? \n  A.  2020. \n  Q.  What kind of treatment did you have? \n  A.  I had – I believe it was called a debridement.   \n  Q.  Do you remember who your doctor was? \n  A.  Dr. Pleimann.   \n  Q.  Did that take care of the problem you were having? \n  A.  Yes, sir.   \n  Q.  Okay.  Did you do physical therapy after that? \n  A.  Yes, sir.... \n Q.  Did you see Dr. Pleimann after you completed the physical          \n            therapy?        \n  A.  Yes, sir. \n  Q.  Do you remember when that was? \nA.  That would be – the last time I saw him for that injury was \nDecember of 2020.... \nQ.  After you last saw Dr. Pleimann sometime in December of \n2020, do you see any other doctors for your right ankle? \nA.  No, sir, not that I remember.   \n \n The parties stipulated that the employment relationship existed on \nJanuary 12, 2022.  The respondents’ attorney examined the claimant at \ndeposition: \n  Q.  Tell me what kind of work you were doing that day. \nA.  When I fell, I was unlocking the doors to come into the \noffice to start my day....There’s two doors.  I was in between \nthe exterior, and then the next one that you walk into to get \ninto the Learning Center.... \nQ.  How did you hurt yourself? \nA.  Coming in between the first door that I opened and the \nsecond door, somehow I tripped on – you know that black \nmats that are in front of business? \nQ.  Yes.   \nA.  I tripped over the black mat.... \nQ.  What part of your body was hurt? \nA.  My right ankle.   \n\nSPARKS - H204217  3\n  \n \n \n \n The parties stipulated that the claimant “sustained a compensable \ninjury to her right foot and ankle” on or about January 12, 2022.  The \nclaimant signed a Form AR-N, EMPLOYEE’S NOTICE OF INJURY, on \nJanuary 12, 2022.  The ACCIDENT INFORMATION section of the Form \nAR-N indicated, “Employee states she was walking in the library.  She \ntripped over a mat and hit the second entrance door.  She did not fall to the \nfloor.”     \n According to the record, the claimant treated at Washington Regional \nUrgent Care on or about January 13, 2022.  It was noted that the claimant \n“tripped on black door mat at College.”  A Nurse Practitioner noted \n“Moderate swelling in right ankle.”  The diagnosis was \"Ankle pain,” and x-\nray results showed “Foot XR normal.”       \n An x-ray of the claimant’s right ankle was taken on January 13, 2022 \nwith the following findings: \n  The soft tissues are unremarkable.   \n  There is no evidence of acute fracture. \nThe alignment is normal.  Apparent osteochondral defect is \nnoted about the medial talar dome.   \nIMPRESSION:  Medial talar dome OCD. \n \n An x-ray of the claimant’s right foot was also taken on January 13, \n2022: \n  COMPARISON:  Ankle series dated 6/12/2020. \nFINDINGS:  The bony structures appear osteopenic with \nmoderate calcaneal spurring again noted.  Mild spurring is \n\nSPARKS - H204217  4\n  \n \n \nalso present about the ankle joint with mild asymmetric \ndegenerative narrowing across the fifth tarsometatarsal joint.  \nThere is also mild narrowing across the first MTP joint and no \ndefinite fracture is noted.  No other significant findings.   \nIMPRESSION:  Chronic changes as described above.     \n \n The claimant was treated conservatively and was returned to light \nduty.   \nHannah Patterson, an APRN working in conjunction with Dr. Jason \nPleimann, reported on January 26, 2022: \nRadiographs:  Plain films of the right ankle and right foot done \non 1222 are imported and reviewed.  These demonstrate her \nold medial OLT.  I do not see any acute fractures.  Normal \nankle and hindfoot alignment.   \nImpression:  Right ankle sprain, date of injury 1/12/2022.  She \nhas a pre-existing medial osteochondral lesion of the talus \nthat underwent arthroscopic debridement and microfracture \non 12/8/2020.   \nPlan:  She injured this at work when she tripped.  She is not \nsure how her ankle twisted but she had significant pain \nafterwards.  She has been in a boot after being seen and x-\nrayed but is doing her normal work duty.  She still having pain \nin the ankle as well as some swelling.  She says it did bruise \nmedially initially but that is resolved.  Her exam is fairly benign \nother than tenderness in the swelling.  I reassured her that I \nthink things will get better with time.  She will stick with her \nboot she can do her normal work duties.  She will remove it \nfor some gentle range of motion exercises.  Follow-up in 2 \nweeks for repeat exam.  We will probably have her wean out \nof the boot and start physical therapy at that time. \n \n Hannah Patterson assessed “1.  Body mass index 40+ - severely \nobese” and “2.  Sprain of right ankle.”     \n Hannah Patterson’s impression on February 9, 2022 was “Right \nankle sprain, date of injury 1/12/2022.  She has a pre-existing medial \n\nSPARKS - H204217  5\n  \n \n \nosteochondral lesion of the talus that underwent arthroscopic debridement \nand microfracture on 12/8/2020.”  Ms. Patterson returned the claimant to \n“normal work duty with use of the boot” on February 9, 2022. \n The claimant continued to follow up with Hannah Patterson, who \nnoted on March 2, 2022, “She has been in the walking boot, at this point \nshe can begin to transition out of the boot and wear her lace up ankle \nboots....We will continue physical therapy to work on range of motion and \nstrengthening.  She can remain at her normal work and taking breaks when \nneeded.”  The claimant testified that she did not benefit from physical \ntherapy.       \n An MRI of the claimant’s right ankle was taken on May 9, 2022 and \nwas compared with an MRI taken November 4, 2020.  The following \nimpression resulted: \n1. Progressive cystic changes are seen in the talar dome with \njoint space narrowing of the tibiotalar joint.  The tibiotalar \njoint demonstrates a moderate joint effusion and changes \nconsistent with synovitis.   \n2. Reactive edema is seen involving the posterior subtalar \njoint, talonavicular joint, and calcaneocuboid joint. \n3. Edema in the sinus Tarsi which could represent sinus \nTarsi syndrome in the right clinical setting. \n4. Split tear of the peroneal brevis tendon. \n \nDr. Pleimann reported on May 9, 2022: \nRadiographs:  MRI of the right ankle done here today \nreviewed.  These demonstrate significant cystic change in the \ntalar dome more diffusely than the area of her previous OLT.  \n\nSPARKS - H204217  6\n  \n \n \nThere is significant bony edema throughout the talus and \ncalcaneus.   \nImpression:  Right ankle sprain with history of prior \narthroscopic debridement OLT, date of injury 1/12/2022.  Her \nMRI today shows diffuse edema throughout the talus and into \nthe calcaneus.  I am not sure if this represents stress reaction \nor exacerbation of developing arthritis.  It could also \npotentially be consistent with early onset avascular necrosis of \nthe talus.   \nPlan:  She has not been improving with measures tried \npreviously.  I am going to have her go back into her boot and \ngo nonweightbearing on a knee scooter.  She needs to be a \nsitting work only nonweightbearing.  Return in 4 weeks with a \nstanding three-view right ankle.   \n \n The claimant followed up with Dr. Pleimann on June 6, 2022: \nRadiographs:  3 views of the right ankle done here today \ndemonstrate joint narrowing of the tibiotalar joint and what \nlooks to be some subtle collapse through the talus likely \nconsistent with avascular necrosis. \nImpression:  Right ankle sprain with history of prior \narthroscopic debridement OLT, date of injury 1/12/2022.  Her \nMRI today shows diffuse edema throughout the talus and into \nthe calcaneus.  I am not sure if this represents stress reaction \nor exacerbation of developing arthritis.  It could also \npotentially be consistent with early onset avascular necrosis of \nthe talus.   \nPlan:  She tells me that she just got the knee scooter less \nthan 2 weeks ago and that work has still been making her do \nsome standing and walking.  She needs to be completely \nnonweightbearing.  We discussed that this is a very long \nprocess if it does indeed turn out to be avascular necrosis.  \nWe will need to get some serial x-rays over time and may \neven repeat an MRI in 3 months or so.  She will follow-up with \nme in 6 weeks with a standing 3 view right ankle.   \n \n Dr. Pleimann took the claimant off work beginning June 8, 2022 until \nhe could re-evaluate the claimant at a July 18, 2022 follow-up appointment.  \nThe respondents terminated the claimant’s employment effective June 8, \n\nSPARKS - H204217  7\n  \n \n \n2022.  The record indicates that the respondents continued to pay \ntemporary total disability benefits following the claimant’s termination.      \n Dr. Pleimann gave the following impression on July 18, 2022: \nRight ankle sprain with history of prior arthroscopic \ndebridement OLT, date of injury 1/12/2022.  Her MRI today \nshows diffuse edema throughout the talus and into the \ncalcaneus.  I am not sure if this represents stress reaction or \nexacerbation of developing arthritis.  It could also potentially \nbe consistent with early onset avascular necrosis of the talus. \nPlan:  She has had less pain since using the knee scooter and \nkeeping weight off of her foot.  Her x-rays look stable.  At the \nvery least she is (sic) got severe arthritis, and certainly it is \npossible she could have avascular necrosis here.  I am going \nto keep her nonweightbearing for another 6 weeks and repeat \nx-rays then.  As long as there is no change then we will repeat \nher MRI after that visit.  She needs to remain in sitting work \nonly nonweightbearing on this extremity.  She tells me that \nshe was fired from the job after she was placed on limitations.  \nUltimately, we may try a tall Arizona type brace after the next \nvisit an MRI to see if it would let her weight-bear with less \npain.   \n \n An MRI of the claimant’s right ankle was taken on September 12, \n2022 with the following impression: \n1. Degenerative changes of the tibiotalar joint, posterior \nsubtalar joint, talonavicular joint, and calcaneocuboid joint.  \nOverall this is stable slightly progressed since the previous \nexam. \n2. Moderate tibiotalar joint effusion with changes consistent \nwith synovitis. \n3. Split tear of the peroneal brevis tendon in the \nretromalleolar region.   \n \nDr. Pleimann reported on September 12, 2022: \nAn MRI of this ankle done here today is reviewed.  It \ndemonstrates moderately worsened tibiotalar subtalar and \n\nSPARKS - H204217  8\n  \n \n \ntalonavicular arthritis with subchondral cystic change.  The \nankle joint looks the worst. \nImpression:  Right ankle sprain with history of prior \narthroscopic debridement OLT, date of injury 1/12/2022.  Her \nMRI shows diffuse edema throughout the talus and into the \ncalcaneus consistent with developing arthritis.  It could also \npotentially be consistent with early onset avascular necrosis of \nthe talus. \nPlan:  Her pain has not improved.  She still unable to bear \nweight.  Her MRI shows progressive arthritic change primarily \nin the ankle and subtalar joint but to a lesser extent the \ntalonavicular joint.  We discussed various treatment options, \nincluding various fusion options, total talus replacement, ankle \nreplacement.  I think given concerns over possible vascularity \nof the talus I think she would do best with a tibiotalar \ncalcaneal arthrodesis.  This would still leave her talonavicular \njoint arthritic, but hopefully this could be managed with \ncortisone injections etc.  She understands she had a very stiff \nankle and hindfoot.  She understands [there] is a risk of \nnonunion, wound healing problems, infection among others.  \nShe wishes to proceed.  She is going to call and let me know \nwhen in the near future would be best for her.  In the interim \nshe could return to sitting work only.  She should not drive. \n \n Ann Wilson, RN, CCM corresponded with Dr. Pleimann on \nSeptember 14, 2022: \nI am a nurse case manager who has been asked by Public \nEmployee Claims Division to provide pre-authorization for the \nproposed right ankle tibiotalar calcaneal arthrodesis and to \nclarify injury relatedness of the proposed surgery in regard to \nMs. Sparks’ injury of 01/12/22.   \nAs you are aware, Ms. Sparks is a 56-year-old female who \ninjured her right ankle when she was walking in the library.  \nShe tripped over a mat and hit the second entrance door \nwithout falling.... \nThe 05/09/22 MRI identified progressive cystic changes in the \ntalar dome with joint space narrowing of the tibiotalar joint, \nmoderate effusion and synovitis in the tibiotalar joint, reactive \nedema of the posterior subtalar joint, talonavicular joint and \ncalcaneocuboid joint, edema in the sinus Tarsi which \n\nSPARKS - H204217  9\n  \n \n \nrepresented a sinus Tarsi syndrome, and a split tear of the \nperoneal brevis tendon.... \nThe 09/12/22 MRI identified degenerative changes of the \ntibiotalar joint, posterior subtalar joint, talonavicular joint and \ncalcaneocuboid joint, stable but slightly progressed, moderate \ntibiotalar joint effusion consistent with synovitis, split tear of \nthe peroneal brevis tendon in the retro malleolar region.  Due \nto worsening arthritis, a fusion was recommended. \nIn view of the above, clarification is needed regarding injury \nrelatedness of the proposed right ankle tibiotalar calcaneal \narthrodesis.  Please consider addressing the following \nquestions at this time.   \n1. What pathology identified on the enclosed MRIs are \nconsidered acute 01/22 injury related?   \n    (Dr. Pleiman replied on September 25, 2022 and wrote     \n“None.”) \n2. Would the reported mechanics of tripping, but not falling, \nhave resulted in her current symptoms and pathology?  \nPlease explain and provide supporting rationale.   \n(Dr. Pleimann wrote “No.”)  \n3. Which of Ms. Sparks’ current symptoms are the direct \nresult of the 01/12/22 injury, versus progressive \ndegenerative joint disease or from the pre-existing \nosteochondritis dissecans lesion and surgery?  Please \nexplain and provide supporting rationale. \n(Dr. Pleimann appeared to write, “The majority, if not all, of \nher symptoms are related to progression of AVN.”)   \n \n Dr. Pleimann also wrote on the correspondence that the proposed \nright ankle arthrodesis was indicated and medically appropriate.  However, \nDr. Pleimann wrote “No” to the question, “5.  Can you state, within a \nreasonable degree of medical certainty, the major cause (greater than 50%) \nfor the proposed right ankle arthrodesis is the direct result of the 01/12/22 \ninjury versus her pre-existing pathology?”     \n Ann Wilson corresponded with Dr. Pleimann on September 27, 2022: \n\nSPARKS - H204217  10\n  \n \n \nBased on your response to my letter, it is my understanding \nthe majority, if not all, of Ms. Terri Sparks’ symptoms and \nneed for proposed right ankle tibiotalar calcaneal arthrodesis \nare indicated and related to her progressive degenerative joint \ndisease of the ankle rather than the 01/12/22 work injury.  \nBased on this information, her surgery and any additional \ntreatment will need to be filed under her private health \ninsurance.   \nIn view of the above, I am writing at the request of Public \nEmployee Claims Division for documentation of achievement \nof maximum medical improvement (MMI) and assignment of \npermanent partial physical impairment rating specifically in \nregards to Ms. Sparks’ injury of 01/12/22.  Please address the \nfollowing questions at this time.   \n1. Since the proposed surgery is not considered 01/12/22 \ninjury related, has Ms. Sparks achieved MMI as the result \nof the 01/12/22 work injury?  If so, what date was MMI \nachieved. \nDr. Pleimann replied, “Yes.  9/12/22.” \n2. If MMI has been achieved, is there any assignment of a \npermanent partial physical impairment rating as the result \nof the 01/12/22 work injury?  If so, please document the \npercentage of impairment and the objective finding this is \nbased in accordance with the enclosed Arkansas Workers’ \nCompensation Rule 34.  Please include edition, page, \ntable, and chart number.   \nDr. Pleimann wrote “0% impairment rating.”   \n \n The respondents’ attorney examined the claimant at deposition: \n  Q.  Do you remember the last time you saw Dr. Pleimann? \n  A.  I think it was September the 19\nth\n. \n  Q.  Did you change to see Dr. Steffen after that? \nA.  No.  Dr. Pleimann, he said that – he called me – his office \ncalled me the day before surgery, which was the 28\nth\n of \nSeptember, I believe, and said that workers’ comp had denied \nmy claim and asked if I would pay out-of-pocket, and I said, \n“You-all know I’m unemployed and I got terminated from the \ncollege,” and I didn’t have $4,500.  And then he dropped me, \nsaying there was nothing wrong with me.   \n \n\nSPARKS - H204217  11\n  \n \n \n The record indicates that the respondents paid the claimant \ntemporary total disability benefits for a period ending October 5, 2022.   \nThe record contains a Change of Physician Order dated January 18, \n2023:  “A change of physician is hereby approved by the Arkansas \nWorkers’ Compensation Commission for Terri Sparks to change from Jason \nPleimann, M.D. to Kevin Steffen, DPM[.]”   \n The claimant began treating with Dr. Kevin J. Steffen, Jr. on \nFebruary 7, 2023: \nPatient presents to clinic complaining of pain in her right \nankle.  Patient fell in 2020 and had arthroscopic surgery to \ndebride the joint and microfracture [and] OCD.  Patient states \nthat she recovered from this and was doing great, and then \nfell in Jan. 2022 and re injured the ankle.  Patient was in a \nwalking boot for about 4 months, had an MRI that confirmed \nsignificant bone marrow edema in the rearfoot and ankle as \nwell as cystic changes to the talus.  Patient was then \nimmobilized and was non weight bearing for another couple \nmonths.  Repeat MRI was then performed which showed \nprogression of the degenerative changes and no improvement \nto the cystic changes or edema.  Patient was then scheduled \nfor ankle and STJ arthrodesis, which was denied by \nworkman’s comp in Sept. 2022.  Patient did not have surgery.  \nPatient is still in the boot and still has significant pain.  Patient \nis here for another opinion.... \nModerate edema with varicosities noted bilaterally with \nincreased edema to the right foot and ankle.  There is \nsignificant pain with palpation to the right foot and ankle and \nwith ROM of the ankle and STJ.... \nRadiographs, 3 views right foot, AP, MO and lateral and 2 \nviews right ankle, AP and mortise, do not reveal acute \nchanges, there are significant degenerative changes noted to \nthe ankle and subtalar joint with cystic changes to the talus \nwith sclerosis of the talus and STJ, there are also \ndegenerative changes to the TN joint. \n\nSPARKS - H204217  12\n  \n \n \nMRIs and CTs from 2020 and 2022 were evaluated, CT in \n2020 suggested osteochondral lesion to the talar dome, 2022 \nMRIs suggested significant bone marrow edema to rearfoot \nand ankle with degenerative changes to the ankle, STJ and \nTN and cystic changes to the talus.   \n \n Dr. Steffen assessed “Post traumatic arthritis right foot and ankle.  \nAVN talus right.  Pain.”  Dr. Steffen treated the claimant conservatively but \nalso discussed the possibility of surgery.   \n Dr. Steffen reported on June 27, 2023, “Patient presents to clinic for \nfollow up of pain in her right ankle.  Patient is still in the boot.  Still has \nsignificant pain and is still non weight bearing on a knee scooter.  Patient is \nasking about surgery....Again discussed risks, complications and post \noperative care of surgery, which would be tibiotalar and subtalar joint fusion \nas well as core decompression....Recommended CT scan to help plan for \nsurgery.” \n The claimant followed up with Dr. Steffen on July 19, 2023:  “Patient \nis here to discuss the CT results.  She is still having quite a bit of pain....CT \nreveals no evidence of avascular necrosis.  Large lucency in the medial \ntalar dome.  Severe DJD in the AJ and STJ.”  Dr. Steffen assessed “Post \ntraumatic arthritis right foot and ankle with cystic changes to the talus.  \nPain....Discussed surgery on the right ankle and patient would like to \nproceed with scope and subchondroplasty.” \n\nSPARKS - H204217  13\n  \n \n \n Dr. Steffen performed surgery on September 1, 2023:  “Ankle \narthroscopy with significant debridement as well as repair of the \nosteochondritis in the right talus.”  The pre- and post-operative diagnosis \nwas “1.  Osteochondritis dissecans of the right ankle.  2.  Arthritis, right \nankle.”  The claimant followed up with Dr. Steffen on September 29, 2023:  \n“Patient’s pain has improved, but still cannot stand or walk for very long \nwithout pain and instability....edema is significantly improved as well as \npain, slight weakness in the ankle.”  Dr. Steffen assessed “Post traumatic \narthritis right foot and ankle with cystic changes to the talus, post op.  OCD \nright talus, post op.  Pain.”   \n Dr. Steffen reported on December 6, 2023: \nPatient presents to clinic for follow up of pain in the right foot.  \nPatient is walking without a boot, but is wearing a brace.  Still \nhas significant pain and swelling.... \nDiscussed continued use of the brace.  Discussed icing, \ncompression, supportive shoes, inserts, anti-inflammatory \nmedications, injections and fusion.  \nPatient would like to continue at home care. \nFollow up PRN.   \n \n Dr. Steffen assessed “1.  Arthritis of right foot” and “2.  Pain, joint, \nankle and foot.”      \n A pre-hearing order was filed on February 6, 2024.  According to the \npre-hearing order, the claimant contended, “The Claimant contends that \nshe sustained a compensable injury to her right foot and ankle in the course \nand scope of her employment on January 12, 2022.  The Claimant did a \n\nSPARKS - H204217  14\n  \n \n \nChange of Physician to Dr. Kevin Steffen.  She contends that she is entitled \nto reasonable and necessary medical treatment under his direction.  The \nClaimant contends that she is entitled to TTD benefits (dates to be \ndetermined).  The Claimant contends that she is entitled to an impairment \nrating by Dr. Steffen and related permanent partial disability benefits.”   \n The respondents contended, “The Respondent contends that the \nclaimant reported having an accident occurring January 12, 2022 when she \nstumbled on a mat and injured her right ankle.  The claimant was diagnosed \nwith a sprain following this date.  Respondent accepted as compensable \nthis sprain injury the claimant sustained.  The claimant was provided \nreasonable and necessary medical treatment for her injury, including MRI \nstudy and treatment with Dr. Jason Pleimann.  The claimant had a \npreexisting condition in her right ankle, and had undergone arthroscopic \nsurgery on her right ankle by Dr. Pleimann on December 8, 2020.  The \nclaimant had arthritis following her surgery.  Dr. Pleimann wrote that the \nclaimant’s need for a surgery at this time is due to her preexisting condition, \nnot a work injury, and released the claimant at maximum Medical \nImprovement on September 12, 2022 with [a 0%] impairment rating.  The \nclaimant was paid TTD benefits for which Respondent is entitled to a credit.  \nThe claimant used her one-time Change of Physician to see Dr. Steffen, \n\nSPARKS - H204217  15\n  \n \n \nand has been provided a visit with her choice of physician by the \nRespondent.”   \n The respondents contended, “Respondent contends that the \nclaimant has been provided reasonable and necessary medical treatment \nand appropriate indemnity benefits for her compensable sprain injury, and \nthat the claimant cannot meet her burden of proving that she is entitled to \nadditional medical treatment reasonable and necessary for or causally \nrelated to her work injury, nor is the claimant entitled to additional indemnity \nbenefits for her work injury.  Respondent further contends that the claimant \ncannot establish that a compensable injury is the major cause of any \npermanent impairment she contends to be entitled to.  The Respondents \nreserve the right to raise additional contentions, or to modify those stated \nherein, pending the completion of discovery.”   \n The parties agreed to litigate the following issue:  “1.  Whether \nClaimant is entitled to additional medical treatment for her compensable \nright foot and ankle injury in the form of surgery as recommended by Dr. \nKevin Steffen.”   \n A hearing was held on August 21, 2024.  The claimant testified that \nshe continued to suffer from swelling in her right ankle.  An administrative \nlaw judge examined the claimant at hearing: \nQ.  Now, after this surgery occurs by Dr. Steffen, tell me how \nyour symptoms are improved or worsened after the surgery.  \n\nSPARKS - H204217  16\n  \n \n \nHow are you doing after this latest surgery?  I know you are \nnot perfect.  You have explained that to us. \nA.  Right. \nQ.  But what are the differences between pre-surgery and \npost-surgery? \nA.  I am not on a scooter. \nQ.  Okay. \nA.  As far as walking and going places, I don’t do things.  I \ndon’t go out very much because of the fact it is hard to.  It is \nvery hard with the pain. \nQ.  Was the pain worse before the surgery than after the \nsurgery? \nA.  Before the surgery it was worse.  But, yes, after, it’s still \nbad.   \n \n An administrative law judge filed an opinion on November 19, 2024.  \nThe administrative law judge found that the claimant failed to prove she was \nentitled to additional medical treatment recommended by Dr. Steffen.  The \nadministrative law judge therefore denied the claim.  The claimant appeals \nto the Full Commission. \nII.  ADJUDICATION \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Supp. \n2024).  The employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \n\nSPARKS - H204217  17\n  \n \n \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 70 (1984). \n An administrative law judge found in the present matter, “2.  The \nclaimant has failed to prove by a preponderance of the evidence that she is \nentitled to additional medical treatment for her compensable right ankle/foot \ninjury in the form of surgery as recommended by Dr. Steffen.”  The Full \nCommission does not affirm this finding.  We find that the treatment \nprovided by Dr. Steffen was reasonably necessary in accordance with Ark. \nCode Ann. §11-9-508(a)(Supp. 2024).   \n The record indicates that the claimant sustained a previous injury to \nher right ankle when she slipped and fell at home in 2020.  The claimant \ntestified that she received surgical treatment from Dr. Pleimann and was \nreleased without further complications.  The parties stipulated that the \nemployment relationship existed on January 12, 2022.  The claimant \ntestified that she tripped and fell while entering her place of employment \nthat day.  The parties stipulated that the claimant “sustained a compensable \ninjury to her right foot and ankle” on January 12, 2022.   \n The respondents provided medical treatment beginning January 13, \n2022, and the claimant eventually began treating with Dr. Pleimann through \nan APRN, Heather Patterson.  Ms. Patterson assessed “2.  Sprain of right \n\nSPARKS - H204217  18\n  \n \n \nankle” on January 26, 2022.  An MRI taken May 9, 2022 showed, among \nother things, a “4.  Split tear of the peroneal brevis tendon.”  Such an \nobjective abnormality had not been shown prior to the stipulated \ncompensable injury of January 12, 2022.  An MRI confirmed September 12, \n2022 confirmed a “3.  Split tear of the peroneal brevis tendon in the \nretromalleolar region.”  It is within the Commission’s province to weigh all of \nthe medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  Because a \n“split tear of the peroneal brevis tendon” was not demonstrated to be \npresent before the January 12, 2022 compensable injury, the Full \nCommission assigns minimal weight to Dr. Pleimann’s opinion expressed to \nthe Case Manager that this post-injury abnormal diagnostic testing was not \ncausally related to the compensable injury.       \n Dr. Pleimann also opined that the compensable injury sustained by \nthe claimant on January 12, 2022 was not the “major cause” of a need for \nsurgical treatment.  However, the claimant was not required to prove that \nher compensable injury was the “major cause” of her need for medical \ntreatment to include surgery.  See Williams v. L&W Janitorial, Inc., 85 Ark. \nApp. 1, 145 S.W.3d 383 (2004).  Instead, the claimant was required to \nprove that her compensable injury was at least “a factor” in her need for \nadditional medical treatment.  Id.  The Full Commission finds that the \n\nSPARKS - H204217  19\n  \n \n \ncompensable injury was indeed “a factor” in the claimant’s need for medical \ntreatment, including surgery recommended and performed by Dr. Steffen.  \nThe Full Commission has discussed the post-compensable injury diagnostic \ntesting which confirmed a “split tear of the peroneal brevis tendon.”  The \nevidence demonstrates that this objective medical finding was causally \nrelated to the January 12, 2022 compensable injury.  We also find that Dr. \nSteffen’s report of “significant bone marrow edema to rearfoot and ankle” \nwere causally related to the compensable injury, as was Dr. Steffen’s \nassessment of “Post traumatic arthritis.”   \n Dr. Steffen performed surgery on September 1, 2023:  “Ankle \narthroscopy with significant debridement as well as repair of the \nosteochondritis in the right talus.”  Dr. Steffen noted after surgery that the \nclaimant’s pain had lessened and her edema had significantly improved.  \nDr. Steffen also reported on December 6, 2023 that the claimant was able \nto walk without a boot.  The claimant testified before the administrative law \njudge that she was no longer required to use a “knee scooter” after surgery \nperformed by Dr. Steffen.  The claimant also testified that her pain had \nsomewhat decreased after surgery.  Such probative evidence of post-\nsurgical improvement is a relevant consideration in determining whether \nsaid treatment was reasonably necessary.  Hill v. Baptist Med. Ctr., 74 Ark. \n\nSPARKS - H204217  20\n  \n \n \nApp. 250, 48 S.W.3d 544 (2001), citing Winslow v. D&B Mech. Contractors, \n69 Ark. App. 285, 13 S.W.3d 180 (2000).   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she was entitled to additional medical treatment as \nrecommended by Dr. Steffen.  We find that the January 12, 2022 \ncompensable injury was at least “a factor” in the claimant’s need for \nadditional medical treatment.  See Williams, supra.  The Full Commission \nfinds that treatment recommended and performed by Dr. Steffen, including \nsurgery, was reasonably necessary in accordance with Ark. Code Ann. §11-\n9-508(a)(Supp. 2024).  For prevailing on appeal to the Full Commission, the \nclaimant’s attorney is entitled to a fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(Supp. 2024).  The claimant did \nnot prove that any provision of Act 796 of 1993 or the procedures of the \nArkansas Workers’ Compensation Commission are unconstitutional.  See \nWoods v. Tyson Poultry, Inc., 2018 Ark. App. 186, 547 S.W.3d 456. \n IT IS SO ORDERED.      \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n\nSPARKS - H204217  21\n  \n \n \n \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding the claimant \nproved she is entitled to additional medical treatment provided by Dr. Kevin \nSteffen. \nArk. Code Ann. § 11-9-508(a) requires an employer to provide an \ninjured employee with medical and surgical treatment \"as may be \nreasonably necessary in connection with the injury received by the \nemployee.\"  The claimant has the burden of proving by a preponderance of \nthe evidence the additional treatment is reasonable and necessary.  Nichols \nv. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013).  \nIt is within the Commission's province to weigh all the medical \nevidence to determine what is most credible and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  \n\nSPARKS - H204217  22\n  \n \n \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness.  Id.  However, \nthe Commission has the authority to accept or reject medical opinions. \nWilliams v. Ark. Dept. of Community Corrections, 2016 Ark. App. 427, 502 \nS.W. 3d 530 (2016).  Furthermore, it is the Commission's duty to use its \nexperience and expertise in translating the testimony of medical experts \ninto findings of fact and to draw inferences when testimony is open to more \nthan a single interpretation.  Id. \nThe claimant has a documented history of issues with her right ankle \nand foot resulting from a fall in 2020.  Due to that injury, Dr. Jason Pleimann \nperformed an arthroscopic debridement on the claimant’s ankle and foot on \nDecember 8, 2020.  The claimant on direct examination testified, “I can say, \nhonestly, my ankle was bothering me before the second fall.  I mean I was \nstill able to drive and do whatever I wanted to do, but after the fall, it swells -\n- basically, I mean I don’t know how to say it, three to four times the size.  I \nwould have to go get groceries, but I have to go to Walmart and do the call-\nin and they bring it out to you because I couldn’t walk through Walmart.” \nThe claimant sustained a compensable injury to her right ankle and \nfoot on January 12, 2022, when she tripped and fell while walking into the \nlibrary where she worked.  That day, the claimant was treated at \nWashington Regional Urgent care for complaints of right ankle pain and \n\nSPARKS - H204217  23\n  \n \n \nswelling.  The claimant underwent an x-ray at that visit and the results were \nnormal.  She was prescribed medication and was referred to “ortho.”  \nOn February 9, 2022, the claimant was seen at Ozark Orthopedics \nby APRN Hannah Patterson, who’s findings stated: \nAssessment/Plan Impression: \n \nRight ankle sprain, date of injury \n1/12/2022. She has a pre-existing \nmedial osteochondral lesion of the \ntalus that underwent arthroscopic \ndebridement and microfracture on \n12/8/2020.  \n \nPlan: She has been in the boot \nweightbearing as tolerated, she \nstill has pretty considerable \nswelling today on exam.  She has \nbeen off work quite a bit due to the \nweather, but is still doing her \nnormal work duty with the use of \nthe boot.  I told her I think she can \nstay in the boot for another 2 \nweeks, then transition back to her \nlace up ankle boots if she feels \nable before her next appointment. \nWe have discussed that with her \nhistory of surgery on this ankle, \nthis could take a while before it \ncomes around fully.  I want her to \ncontinue to ice, take ibuprofen as \nneeded, and give this some \nrelative rest.  We will get her into \nsome physical therapy to work on \nrange of motion and strengthening. \nFollow-up in 3 weeks for \nreevaluation.  I expect MMI in  \n6 to 8 weeks.  \n \n\nSPARKS - H204217  24\n  \n \n \nOn May 2, 2022, APRN Patterson referred the claimant for an \nMRI, which she had on May 9, 2022. The MRI revealed: \n1. Progressive cystic changes are \nseen in the talar dome with joint \nspace narrowing of the tibiotalar \njoint.  The tibiotalar joint \ndemonstrates a moderate joint \neffusion and changes consistent \nwith synovitis.  \n \n2. Reactive edema is seen \ninvolving the posterior subtalar \njoint, talonavicular joint, and \ncalcaneocuboid joint. \n \n3. Edema in the sinus Tarsi which \ncould represent sinus Tarsi \nsyndrome in the right clinical \nsetting.  \n \n4. Split tear of the peroneal brevis \ntendon.  \n \nThat day, the claimant was seen by Dr. Jason Pleimann, an \northopedic surgeon at Ozark Orthopedics who reviewed the claimant’s MRI \nand opined: \nAssessment/Plan \n  \nRadiographs: MRI of the right \nankle done here today reviewed. \nThese demonstrate significant \ncystic change in the talar dome \nmore diffusely than the area of her \nprevious OLT.  There is significant \nbony edema throughout the talus \nand calcaneus.  \n \n\nSPARKS - H204217  25\n  \n \n \nImpression: Right ankle sprain with \nhistory of prior arthroscopic \ndebridement OLT, date of injury \n1/12/2022.  Her MRI today shows \ndiffuse edema throughout the talus \nand into the calcaneus.  I am not \nsure if this represents stress \nreaction or exacerbation of \ndeveloping arthritis.  It could also \npotentially be consistent with early \nonset avascular necrosis of the \ntalus. \n \nThe claimant followed up with Dr. Pleimann on July 18, 2022.  Dr. \nPleimann reviewed standing three-view imaging of the claimant’s ankle and \nreported that “[t]hese again show some cystic change to the talus and some \nmild sclerosis.  No obvious collapse.  Dr. Pleimann’s records reflect his \nopinion that the claimant suffers from worsening arthritis: \nImpression: Right ankle sprain with \nhistory of prior arthroscopic \ndebridement OLT, date of injury \n1/12/2022.  Her MRI today shows \ndiffuse edema throughout the talus \nand into the calcaneus.  I am not \nsure if this represents stress \nreaction or exacerbation of \ndeveloping arthritis.  It could also \npotentially be consistent with early \nonset avascular necrosis of the \ntalus.  \n \nPlan: She has had less pain since \nusing the knee scooter and \nkeeping weight off of her foot.  Her \nx-rays look stable.  At the very \nleast she is (sic) got severe \narthritis, and certainly it is possible \n\nSPARKS - H204217  26\n  \n \n \nshe could have avascular necrosis \nhere.  I am going to keep her \nnonweightbearing for another 6 \nweeks and repeat x-rays then.  As \nlong as there is no change we will \nrepeat her MRI after that visit.  \n \nOn September 12, 2022, the claimant underwent an additional right \nankle MRI.  Upon review, Dr. Pleimann states that “[i]t demonstrates \nmoderately worsened tibiotalar subtalar and talonavicular arthritis with \nsubchondral cystic change.  The ankle joint looks the worst.” Dr. Pleimann \nopined that this could potentially be consistent with early onset avascular \nnecrosis of the talus as he had previously considered.  At that time, Dr \nPleimann proposed surgery to treat the claimant’s chronic conditions. \n On September 14, 2022, the RN.CCM, Ann Wilson, of Systemedic \nwrote Dr. Pleimann asking a series of questions regarding the claimant’s \ninjury.  Most notably, she  asked, “What pathology identified on the \nenclosed MRIs are considered acute 01/12/22 injury related?”  Dr. \nPleimann responded “None.”  Dr. Pleimann further explained that “[t]he \nmajority, if not all, of her symptoms are related to progressive [illegible].” \nMs. Wilson also asked, “If the ankle arthrodesis is indicted for pre-existing \npathology, is there an additional treatment indicated as the result of the \n1/12/22 injury?”  Dr. Pleimann replied, “No.”  Her final question to the doctor \nwas, “If the ankle arthrodesis is indicated, medically appropriate, and the \ndirect result of the 1/12/22 injury, what is the potential outcome based on \n\nSPARKS - H204217  27\n  \n \n \nher pre-existing and co-existing medical conditions?”  Dr. Pleimann replied, \n“N/A.”  \nMs. Wilson sent a follow-up letter to Dr. Pleimann on September 27, \n2022, with two follow-up questions, to which Dr. Pleimann responded:  \n1. Since the proposed surgery is \nnot considered 01/12/22 injury \nrelated, has Ms. Sparks achieved \nMMI as the result of the 01/12/22 \nwork injury?  If so, what date was \nMMI achieved?  \n \nYes.  9/12/22.  \n \n2. If MMI has been achieved, is \nthere any assignment of a \npermanent partial physical \nimpairment rating as the result of \nthe 01/12/22 work injury?  If so, \nplease document the percentage \nof impairment and the objective \nfinding this is based in accordance \nwith the enclosed Arkansas \nWorkers’ Compensation Rule 34. \nPlease include edition, page, table, \nand chart number.  \n \n0% impairment rating.  \n \nThe claimant requested a change of physician from the Commission \non January 6, 2023, and a Change of Physician Order was entered on \nJanuary 18, 2023 changing the claimant’s treating physician from Dr. \nPleimann to Dr. Kevin Steffen.  \nAt a February 7, 2023 visit, Dr. Steffen opined: \n\nSPARKS - H204217  28\n  \n \n \nRadiographs, 3 views right foot, \nAP, MO and lateral and 2 views \nright ankle, AP and mortise do not \nreveal acute changes, there are \nsignificant degenerative changes \nnoted to the ankle and subtalar \njoint with cystic changes to the \ntalus with sclerosis of the talus and \nSTJ, there are also degenerative \nchanges to the TN joint.  MRIs and \nCTs from 2020 and 2022 were \nevaluated, CT in 2020 suggested \nosteochondral lesion to the talar \ndome, 2022 MRIs suggested \nsignificant bone marrow edema to \nrearfoot and ankle with \ndegenerative changes to the ankle, \nSTJ and TN and cystic changes to \nthe talus. \n \nDr. Steffen “[d]iscussed that both sudden injury and chronic \ndegenerative changes from an old injury could cause the AVN of the talus.”  \nDr. Steffen ultimately performed a right ankle arthroscopy and debridement \non September 1, 2023.  Operative notes reflect Dr. Steffen’s opinion that \nthe changes he treated were degenerative, stating that there were \n“significant degenerative changes to the ankle joint as well as cystic and \nosteochondral defects in the talus and the distal tibia.”  His operative notes \nalso state, “Some, if not most, of her pain may be related to her \ndegenerative changes in the ankle joint.” \nThe claimant has presented no clear evidence that Dr. Steffen \nbelieved that the need for a right ankle arthroscopy was causally related to \n\nSPARKS - H204217  29\n  \n \n \nthe claimant’s January 2022 injury. In fact, Dr. Steffen notes degenerative \nchanges to the claimant’s ankle in his operative notes and discussed with \nthe claimant the likelihood that her condition was due to degenerative \nchanges from her 2020 injury. \nThe objective findings from the claimant’s treatment with Dr. \nPleimann is consistent with Dr. Steffen’s opinion that the claimant suffered \na right ankle sprain on January 12, 2022, but the pathology found in her \nimaging are degenerative in nature and related to her fall in 2020 and not \nher injury on January 12, 2022. \nDr. Pleimann has stated that none of the pathology on the MRI’s \nafter the 2022 injury were acute and related to the 2022 injury.  It was also \nhis opinion that the suggested ankle surgery after the 2022 accident was for \nthe pre-existing pathology.  Dr. Pleimann’s opinion carries much more \nweight than that of Dr. Steffen since he was the claimant’s treating \nphysician for the non-related 2020 injury and the compensable injury on \nJanuary 12, 2022.  \nThe claimant has wholly failed to prove by the preponderance of the \nevidence that she is entitled to the additional medical treatment provided by \nDr. Steffen, and for these reasons, the ALJ’s findings should be affirmed. \nAccordingly, for the reasons set forth above, I respectfully dissent. \n \n\nSPARKS - H204217  30\n  \n \n \n     _________________________________  \n     MICHAEL R. MAYTON, Commissioner","textLength":45414,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204217 TERRI SPARKS, EMPLOYEE CLAIMANT NORTH ARKANSAS COLLEGE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 5, 2025","outcome":"affirmed","outcomeKeywords":["affirmed:1","granted:1","denied:1"],"injuryKeywords":["ankle","fracture","sprain","back","knee"],"fetchedAt":"2026-05-19T22:29:44.234Z"},{"id":"full_commission-H208338-2025-06-04","awccNumber":"H208338","decisionDate":"2025-06-04","decisionYear":2025,"opinionType":"full_commission","claimantName":"Christine Bell","employerName":"Fianna Hills Nursing Rehab Center","title":"BELL VS. FIANNA HILLS NURSING REHAB CENTER AWCC# H208338 June 04, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Bell_Christine_H208338_20250604.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Bell_Christine_H208338_20250604.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H208338 \n \nCHRISTINE BELL, EMPLOYEE  CLAIMANT \n \nFIANNA HILLS NURSING REHAB CENTER,  \nEMPLOYER RESPONDENT \n \nAMTRUST NORTH AMERICA,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED JUNE 4, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MATTHEW J. KETCHAM, \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE WILLIAM C. FRYE, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed January 28, 2025.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-hearing \nconference conducted on April 15, 2024, and contained in a \nPre-hearing Order filed April 23, 2024, are hereby accepted \nas fact.  \n \n2. The claimant has failed to prove by a preponderance of the \nevidence that she sustained a compensable injury to her neck \n\n \nBELL - H208338  2\n  \n \n \nand low back on or about December 29, 2020, and/or \nDecember 30, 2020.  \n \n3. The claimant has failed to prove by a preponderance of the \nevidence that she is entitled to medical treatment for her \nalleged neck and low back injuries. \n \n4. The claimant has failed to prove by a preponderance of the \nevidence that she is entitled to temporary total disability \nbenefits from March 31, 2021, to a date yet to be determined.  \n \n5. The claimant has failed to prove by a preponderance of the \nevidence that her attorney is entitled to an attorney’s fee. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's January 28, \n2025 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n  \n \n\n \nBELL - H208338  3\n  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2720,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H208338 CHRISTINE BELL, EMPLOYEE CLAIMANT FIANNA HILLS NURSING REHAB CENTER, EMPLOYER RESPONDENT AMTRUST NORTH AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 4, 2025 Upon review before the FULL COMMISSION in Litt...","outcome":"denied","outcomeKeywords":["affirmed:3","granted:3","denied:4"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:29:44.171Z"},{"id":"full_commission-H201405-2025-06-04","awccNumber":"H201405","decisionDate":"2025-06-04","decisionYear":2025,"opinionType":"full_commission","claimantName":"Defrenchi Harris","employerName":"Hall Tank Co., LLC","title":"HARRIS VS. HALL TANK CO., LLC AWCC# H201405 June 04, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Harris_DeFrenchi_H201405_20250604.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Harris_DeFrenchi_H201405_20250604.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H201405 \n \nDEFRENCHI B. HARRIS, \nEMPLOYEE \n \nCLAIMANT \nHALL TANK CO., LLC,  \nEMPLOYER \n \nRESPONDENT \nACCIDENT FUND GENERAL INSURANCE CO., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 4, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJanuary 8, 2025.  The administrative law judge found that the statute of \nlimitations barred the claim.  After reviewing the entire record de novo, the \nFull Commission reverses the administrative law judge’s opinion.  The Full \nCommission finds that the statute of limitations does not bar the claim, and \nwe find that the claimant proved he was entitled to additional medical \ntreatment.     \nI.  HISTORY \n\nHARRIS - H201405  2\n  \n \n \n The parties stipulated that the employee-employer relationship \nexisted on November 18, 2021.  The claimant testified on direct \nexamination: \nQ.  You were employed with Hall Tank Company and, on \nNovember 18, 2021, you sustained some injuries, did you \nnot? \nA.  Yes, sir, I did.... \nQ.  How did you get hurt? \nA.  At the process, it was – it was at – it was going on right to \nbreak and working at a – at a pace where we was going to \nlunch, and this was working with that strap, ratchet strap, and \nunderhand wrenching it so – and like I said, it was time \npressure from going on lunch break, and I just felt a ripple \neffect as I was tightening the – tightening the strap down....I \nfelt it was a whole ripple effect up my arm.... \nQ.  Now, Mr. Harris, you did receive and have received \nmedical treatment as a result of this accident, correct? \nA.  Correct.   \n \n According to the record, the claimant treated at Concentra on \nNovember 18, 2021:   \nThe patient presents today with Pain in left humerus from \nstrapping down a load....injured on 11/18/2021. \nThis is the result of lifting and Loading tanks on a trailer and \nwhile securing the tanks, he was pushing down on a ratchet \nand felt a pop in his left bicep area.   \nOccurred while at work. \nComplaint of shoulder pain....Pain is located in the right \nanterior shoulder and left biceps tendon....Pain radiates to the \nleft arm and left elbow.  Associated symptoms include \ndecreased range of motion, deformity and stiffness, but no \nnumbness in arm, no shoulder bruising and no swelling.... \nLeft Shoulder:  Appears with a deformity (long bicep head \ndeformity and deltoid hypertrophy).  Tenderness in the AC \njoint, in the deltoid, in the anterior glenohumeral joint, in the \nsupraspinatus muscle, in the anterior shoulder, in the lateral \nshoulder and in the posterior shoulder.... \n\nHARRIS - H201405  3\n  \n \n \nLeft Upper Arm:  Appears with a deformity (volar and mid).... \n \n Miriam Lawrence, NP assessed “1.  Left shoulder pain,” “2.  Injury of \ntendon of long head of left biceps,” and “Suspect tendon rupture.”   \n An x-ray of the claimant’s left shoulder was taken on November 18, \n2021 with the impression, “1.  No radiographic evidence for left shoulder \nfracture or dislocation.  2.  Other findings, suggestions and discussion as \nabove.” \n The parties stipulated that “the claimant’s injury to his left shoulder \nwas accepted as compensable and appropriate benefits were paid.”     \n The claimant followed up at Concentra on November 22, 2021:  \n“Pain is located in the left anterior shoulder and left biceps area....Pain \nradiates to the left arm.” \n An MRI of the claimant’s left shoulder was taken on November 23, \n2021 with the following impression: \n1. Posttraumatic strain of the subscapularis and to a lesser \nextent supraspinatus muscles. \n2. Large posterior labral tear. \n3. Small amount of fluid in the subacromial subdeltoid bursa, \nwhich can be seen with bursitis. \n4. Moderate.   \n \n An MRI of the claimant’s left humerus was taken on November 23, \n2021 with the following impression: \n1. Mild to moderate grade strain of the biceps muscle.  The \ndistal insertion at the elbow is not included within the field \nof view. \n\nHARRIS - H201405  4\n  \n \n \n2. Low-grade strain of the deltoid muscle.   \n \nDr. Philip A. Smith performed surgery on February 9, 2022:  “1.  Left \nshoulder arthroscopy with labral debridement and biceps tenodesis.  2.  \nSubacromial decompression with bursectomy and acromioplasty.”  Dr. \nSmith returned the claimant to restricted work on February 18, 2022. \nThe claimant followed up with Dr. Smith on March 15, 2022: \nHistory:  Status post left shoulder arthroscopy with biceps \ntenodesis.  He is almost 6 weeks out from surgery.  He has \nnot been in therapy.  He has been in a sling his entire time.  \nHe says he was in an automobile accident last week but then \nmissed his follow-up appointment.  He is very argumentative \nand combative today.  He keeps telling me that his arm is not \nright....He has atrophy of his left upper extremity due to \nnonuse.  He is able to move his hand and his wrist and his \nelbow....I told him I saw no structural abnormality today.  I told \nhim he needs to get started in therapy.... \n \n The claimant was provided physical therapy visits beginning March \n25, 2022. \nOn March 31, 2022, the claimant filed with the Commission a Form \nAR-C, CLAIM FOR COMPENSATION.  The ACCIDENT INFORMATION \nsection of the Form AR-C indicated that the Date of Accident was \nNovember 18, 2021, “EMPLOYEE INJURED SHOULDER AND ARM.”  The \nCLAIM INFORMATION section of the Form AR-C indicated that the claim \nwas for “additional benefits,” including “Additional Medical Expenses.”     \nThe claimant followed up with Dr. Smith on April 26, 2022: \n\nHARRIS - H201405  5\n  \n \n \nHistory:  Status post left shoulder arthroscopy with labral \ndebridement biceps tenodesis.  He is 2 and half months out \nfrom his surgery.  He is still complaining of pain in the left \nupper extremity.  He has been dedicated with therapy.   \nPhysical exam:  Left upper extremity shows atrophy of the left \ndeltoid and bicep.  He states that when he injured his left arm \nhe had a pulling sensation of the left shoulder.  It is possible \nthat he could have had a disc herniation that is causing the \nincreasing pain and weakness in his left upper extremity.  I \nwould like to order an MRI of his cervical spine to evaluate his \nleft C5 nerve root.  He is going to continue in therapy and \ncontinue with work restrictions.   \n \n Dr. D’Orsay D. Bryant, III reported on June 28, 2022: \nThe patient is a 47-year-old male with the complaint of a work-\nrelated injury to the left shoulder, sustained on 11/18/2021.  \nThe patient worked as a “yard truck operator” at Hall Tank \nGroup company, where his major job function was to load and \nunload tanks.  He was putting ratchet straps on a truck, and \nhe severely injured his shoulder and heard a “pop and a \nripple” in his left shoulder.... \nOn 02/09/2022, Dr. Smith performed the following surgical \nprocedures: \n1. Left shoulder arthroscopy with labral debridement and \nbiceps tenodesis. \n2. Subacromial decompression with bursectomy and \nacromioplasty.... \nOn today’s office visit, the patient complains of persistent left \nshoulder pain, stiffness, and occasional numbness....He \nexperiences left shoulder pain with prolonged walking, and he \ndescribes his left shoulder hanging as “dead weight.”  He \nstated that despite the physical therapy, he cannot raise the \nleft shoulder fully overhead.  He experiences left shoulder \nnight pain, and he has to sleep only on the unaffected right \nshoulder.... \nX-rays of the left shoulder were negative for acute bony injury.  \nHe has inferior subluxation of the humeral head on the \nglenoid.   \n \n\nHARRIS - H201405  6\n  \n \n \n Dr. Bryant assessed “1.  Left shoulder posterior labral tear.  2.  \nStatus post left shoulder arthroscopy with labral debridement and biceps \ntenodesis....[A]n EMG/NCS study is indicated and recommended to rule out \nan axillary nerve injury to the shoulder or other left upper extremity \nneurological deficit, that causes the patient’s left upper extremity numbness \nand inferior subluxation of the humeral head on the glenoid.” \n A left shoulder arthrogram was taken on September 13, 2022 with \nthe impression, “No evidence of rotator cuff tear.”  An MR shoulder with \ncontrast was done on September 13, 2022 with the impression, “Prior \nbiceps tendon tenodesis.  Moderate osteoarthritis of the AC joint and \nglenohumeral joint.  Superior labral tear.”   \n The record contains a Neurodiagnostics Laboratory report dated \nNovember 8, 2022: \n47 y/o Male who has pain in the left shoulder and elbow, prior \nleft shoulder surgery, minor numbness and tingling in the left \narm, and neck pain, pt initially injured his left arm while at \nwork about 1 year ago, and no right arm symptoms.... \nConclusion:  1.  Probable left brachial plexopathy, with severe \ninvolvement of the upper trunk, vs. polyradiculopathy.  There \nis minimal residue innervation of the deltoid and infraspinatus \nmuscles.  MRI imaging of the cervical spine and brachial \nplexus are recommended.   \n \n Upon Dr. Bryant’s recommendation, an MRI of the claimant’s cervical \nspine was taken on December 9, 2022 with the following impression:   \nAbnormal ventral cord signal bilaterally at C3-4 suspected to \nreflect myelomalacia, within in the lateral left hemicord at C4-5 \n\nHARRIS - H201405  7\n  \n \n \nsuspected to reflect myelomalacia, and in the bilateral ventral \nC5-6 cord favored to reflect myelomalacia but a component of \nactive impingement related myelopathic changes of the cord \nat C5-6 not excluded.   \nC5-6:  Moderate central canal and severe neural foraminal \nstenosis with cord impingement from disc bulging and \nspondylosis. \nC4-5 and C3-4:  Mild central canal and severe neural \nforaminal stenosis from disc bulging and spondylosis. \n \n An MRI of the brachial plexus was done on December 9, 2022 with \nthe impression, “Negative MRI of the left brachial plexus without contrast.  \nCervical spine MRI reported separately.”   \n Dr. Bryant reported on December 15, 2022: \nThe patient is a 48-year-old male who comes in today for a \nfollowup of his left shoulder work-related injury on 11/18/2021.  \nThe patient underwent a left shoulder surgery at that time, but \nhe has failed to improve following the surgery and postop \nphysical therapy.  An EMG/NCS revealed a severe injury to \nthe left shoulder brachial plexus which contributes to the \npersistent severe left shoulder pain and stiffness following the \narthroscopic shoulder procedure.  Dr. Michael Chesser who \nperformed the EMG/NCS, recommended cervical spine MRI \nas well as a left brachial plexus MRI, which have been \nperformed.... \nThe MRIs were discussed in detail with the patient and he \nwas able to read them.  The pathology of the cervical spine \ncorrelates to the severe brachial shoulder plexopathy found \non the EMG/NCS.  The patient is a suitable candidate for \nreferral to a neurosurgeon for examination of the cervical \nspine and myelomalacia and to assess the left shoulder \nbrachial plexopathy.  The referral to the cervical spine \nsurgeon will be made when approved by the worker’s \ncompensation carrier.  This workup definitively explains the \npatient’s claims of persistent left shoulder pain and weakness \nfollowing his work-related injury of 11/18/2021.   \n \n Dr. James Adametz reported on March 14, 2023: \n\nHARRIS - H201405  8\n  \n \n \nThis is a 48-year-old male who was working in October 2021 \nwhen he just was tightened (sic) down some ratchet straps \nand felt a strange sensation on the left side of his shoulder \nchest and upper arm.  He had felt a pop in his shoulder the \nmonth before and had reported this.  He saw an orthopedic \nsurgeon who ended up doing an MRI scan and find (sic) a \nlabral tear and doing (sic) surgery on his shoulder.  He says \nthat he was having symptoms involving everything from the \nbase of the neck on the left side down to the elbow which \ncontinued after surgery.  He now has significant atrophy of his \nleft deltoid and biceps he saw a neurologist who did an EMG \nand came to the conclusion that he either had a cervical spine \nproblem or brachial plexus injury.  An MRI of the brachial \nplexus was normal but the cervical spine reveals multiple \nabnormalities....My assessment is I think that this is more of \nthe cervical spine and spinal cord issue than a brachial plexus \ninjury.  Naturally some of it could have been from the shoulder \nand shoulder surgery but I believe is more extensive than you \ncould explain from that.  I can only determine the cause of the \nproblem from his history and he says all of his symptoms \nstarted the day that he reported the strange sensations in his \nleft chest and arm.  He denies any significant change in his \nsymptoms with the motor vehicle accident.  He does have a \ncongenitally small canal which made this more likely to occur.  \nAt this point I am not sure anything can be done to really \nreverse his neurologic symptoms but to prevent further \ndamage he would likely benefit from surgery on the cervical \nspine.   \n \n Dr. Jesse Abeler reported on August 8, 2023: \n[DeFrenchi] Harris presents to clinic today for independent \nmedical exam regarding the left shoulder.  His initial date of \ninjury was 11/18/2021, he was working to tiedown ratchet \nstraps while he was performing his usual customary work at \nHall tank company.  He states he felt a sudden pull along the \nleft upper extremity, this radiated pain into his shoulder, \nacross his chest and into his neck....He was taken for left \nshoulder arthroscopy, subacromial decompression, biceps \ntenodesis and this was performed on 2/9/2022....An MRI of \nthe brachial plexus is obtained on 12/9/2022, demonstrates no \napparent abnormalities.  Also on 12/9/2022 he underwent \n\nHARRIS - H201405  9\n  \n \n \ncervical spine MRI without contrast, this demonstrates severe \nbilateral neural foraminal stenosis at C3-4, C4-5, C5-6 and \nC6-7.  There is central canal stenosis at these levels as well \nwith cord edema, somewhat concerning for myomalacia.   \nOn clinical exam today he demonstrates considerable atrophy \nof the left upper trapezius, left deltoid, left biceps and triceps.  \nHe has abnormal sensation along the shoulder and upper \narm, concerning for a neurologic origin to his weakness, \nmechanical complaints, and abnormal sensation.  It is my \nopinion his cervical findings of foraminal stenosis and canal \nstenosis are creating these complaints and he would benefit \nfrom an evaluation and possible treatment with a \nneurosurgeon.  It is my opinion that his initial injury the “ripple” \nthat he felt along his upper extremity were neurologic in \nnature at his initial reported injury and related to his initial \ninjury on 11/18/2021.  I feel the shoulder treatment has been \nreasonable, review of the operative note demonstrates an \nappropriate technique for labrum debridement, biceps \ntenodesis, and subacromial decompression.  This procedure \ntypically does not create the neurologic disorder seen with the \npatient today.  I expect he has reached maximal medical \nimprovement regarding specifically the shoulder biceps \ntenodesis, and he demonstrates a separate issue regarding \nthe neck related to his initial injury.   \nDue to the physicality of his work, I feel he is unable to use \nthe left upper extremity for heavy gripping, lifting, grasping, \npushing, or pulling, or any degree of overhead work due to the \nweakness and the type of work expected of him.   \nIn my expert opinion I feel he would benefit from a \nneurosurgery evaluation and addressing the multiple level \ncervical canal and foraminal stenosis, which I feel is leading to \nhis left shoulder and upper arm atrophy and objective \nweakness.   \n \n On July 15, 2024, the claimant filed with the Commission another \nForm AR-C, CLAIM FOR COMPENSATION.  The ACCIDENT \nINFORMATION section of the Form AR-C indicated that the Date of \nAccident was November 18, 2021, “Briefly describe the cause of injury and \n\nHARRIS - H201405  10\n  \n \n \nthe part of body injured:  Claimant sustained multiple injuries, including his \nleft shoulder and left breast area and neck while tightening a loading strap.”  \nThe CLAIM INFORMATION section of the Form AR-C indicated that the \nclaim was for “initial” benefits and “additional” benefits.   \nA pre-hearing order was filed on August 20, 2024.  The claimant \ncontended, “Claimant contends he sustained admitted compensable injuries \nto his left shoulder, but Respondents have indicated that they are denying \ncompensability and treatment for the left breast and neck area that was also \ninjured in his compensable accident.  This matter has been controverted for \npurposes of attorney’s fees.  Claimant’s attorney respectfully requests that \nany attorney’s fee owed by claimant on controverted benefits paid by award \nor otherwise be deducted from claimant’s benefits and paid directly to \nclaimant’s attorney by separate check, and that any Commission Order \ndirect the respondent to make payment of attorney’s fees in this manner.”    \n The respondents contended, “Respondents contend that the \nclaimant sustained a left shoulder, upper arm and elbow injury on \nNovember 18, 2021 for which he has received all benefits to which he is \nentitled.  Respondents have not controverted any benefits related to the left \nshoulder injury.  Respondents anticipate accepting an impairment rating \nand paying permanent partial disability benefits for the impairment once a \nrating has been assigned.”   \n\nHARRIS - H201405  11\n  \n \n \n The respondents contended, “Respondents contend that the \nclaimant reported an injury to his shoulder from working to tiedown ratchet \nstraps and he felt a ripple or tear in his left shoulder.  An MRI revealed an \nintact rotator cuff but a possible labrum tear.  The claimant underwent a left \nshoulder arthroscopy, subacromial decompression, and biceps tenodesis \non February 9, 2022.  The claimant was involved in a motor vehicle \naccident post-surgery.  Claimant’s treating surgeon did not note any issues \nwith claimant’s shoulder at his follow up appointment after the MVA.  The \nclaimant petitioned for and received a Change of Physician from Dr. Phillip \nSmith to Dr. D’Orsay Bryant in El Dorado.  Dr. Bryant opined that the \nclaimant’s current problems were either related to his cervical spine or a \nbrachial plexus.  An MRI of the brachial plexus was normal.  Dr. James \nAdametz performed an IME and opined that the claimant’s issues were not \nrelated to the brachial plexus.  Dr. Jesse Abler performed an IME of the \nclaimant’s left shoulder and opined that all treatment the claimant has \nreceived to date was reasonable.  Dr. Abler further opined that surgery \nperformed on the claimant does not typically create the neurologic disorder \nexperienced by the claimant.  Dr. Abler found that the claimant had reached \nmaximum medical improvement regarding the shoulder injury.”   \n The respondents contended, “Claimant has not stated with any \nspecificity in his Prehearing Questionnaire Responses what benefits he is \n\nHARRIS - H201405  12\n  \n \n \nseeking.  If the claimant is asserting a claim for additional TTD benefits, \nRespondents contend that they at all times offered the claimant light or \nsedentary duty within his medical restrictions.  Claimant initially worked light \nduty for Respondent employer until such work was no longer available.  \nClaimant was paid TTD until he was again offered work within his \nrestrictions through a Transition Return to Work program, working for a non-\nprofit.  The claimant refused this offer of work within his restrictions by \nfailing to report to work as instructed.  Respondents contend that the \nclaimant is barred from any additional TTD pursuant to Ark. Code Ann. §11-\n9-526.”   \n The respondents contended, “The claimant, through his attorney, \nfiled an initial AR-C on March 31, 2022, for an injury to claimant’s shoulder \nand arm.  The 3/31/22 AR-C only claimed ‘Additional Benefits’ for the \nshoulder injury.  The claimant did not file a claim for an injury to the ‘left \nbreast and neck” until his current attorney filed an AR-C on July 15, 2024.  \nThe alleged neck and breast injuries were never accepted as compensable.  \nThe claimant cannot claim additional benefits for injuries that were never \naccepted or for which benefits were never paid.  Therefore, the initial AR-C \nfiled on 3/31/22 requesting only additional benefits, was not and could not \nhave been a claim for initial benefits for the alleged neck and breast \ninjuries.  As such the AR-C filed on 3/31/22 for additional benefits for a \n\nHARRIS - H201405  13\n  \n \n \nshoulder injury did not toll the statute of limitations for an initial injury to the \nneck or breast.  The claimant did not file an AR-C alleging an injury to new \nbody parts until the July 15, 2024, AR-C was filed.  This AR-C was filed \nmore than 2 years after the November 18, 2021, injury date.  Accordingly, \nRespondents contend that any claim for an injury to any body part not \npreviously accepted nor previously tolled by the 3/31/22 AR-C is barred by \nthe statute of limitations.”   \n The parties agreed to litigate the following issues: \n1. Compensability of a left breast and neck injury. \n2. Medical Benefits. \n3. The respondents have raised the defense of the statute of \nlimitations. \n4. Attorney fees.   \n \nA hearing was held on October 22, 2024.  At that time, the claimant \ntestified that he wished to return to Dr. Bryant for additional treatment.  The \nclaimant testified, “I’m still feeling burning.  It’s like a burning sensation to \nthe shoulder.”     \nAn administrative law judge filed an opinion on January 8, 2025.  The \nadministrative law judge found that the statute of limitations barred the \nclaim.  The claimant appeals to the Full Commission.   \nII.  ADJUDICATION \nA.  Medical Treatment \n\nHARRIS - H201405  14\n  \n \n \nThe employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Supp. \n2024).  The employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 258, 676 S.W.2d 70 (1984).   \nIn the present matter, the Full Commission finds that the claimant \nproved he was entitled to additional medical treatment as recommended by \nDr. Bryant.  The claimant sustained a work-related accidental injury on \nNovember 18, 2021.  The claimant testified that he felt a “ripple effect” in his \nleft arm and shoulder while performing employment services on November \n18, 2021.  A Nurse Practitioner’s assessment on November 18, 2021 was \n“1.  Left shoulder pain” and “2.  Injury of tendon of long head of left biceps.”  \nThe parties stipulated that the claimant sustained a compensable injury to \nhis left shoulder on November 18, 2021.   \n\nHARRIS - H201405  15\n  \n \n \nDr. Smith performed a left shoulder arthroscopy on February 9, \n2022.  The claimant subsequently reported that he had been in a nonwork-\nrelated motor vehicle accident, but Dr. Smith found “no structural \nabnormality” on March 15, 2022.   \nThe claimant began treating with Dr. Bryant on June 28, 2022.  Dr. \nBryant noted that the claimant continued to suffer from chronic pain in his \nleft arm and shoulder following the compensable injury.  Dr. Bryant \nrecommended additional diagnostic testing, and abnormalities were \nrevealed in an MRI of the claimant’s cervical spine taken December 9, \n2022.  Dr. Bryant also reported that electrodiagnostic testing showed “a \nsevere injury to the left shoulder brachial plexus which contributes to the \npersistent severe left shoulder pain and stiffness following the arthroscopic \nshoulder procedure.”  Dr. Bryant opined, “The pathology of the cervical \nspine correlates to the severe brachial shoulder plexopathy found on the \nEMG/NCS.”  Dr. Adametz examined the claimant on March 14, 2023 and \nagreed that “the cervical spine reveals multiple abnormalities....My \nassessment is I think that this is more of a cervical spine and spinal cord \nissue than a brachial plexus injury.”  Dr. Abeler reported on August 8, 2023, \n“On clinical exam today he demonstrates considerable atrophy of the left \nupper trapezius, left deltoid, left biceps and triceps....I expect he has \nreached maximal medical improvement regarding specifically the shoulder \n\nHARRIS - H201405  16\n  \n \n \nbiceps tenodesis, and he demonstrates a separate issue regarding the neck \nrelated to his initial injury [emphasis supplied].”   \nIf an injury is compensable, then every natural consequence of that \ninjury is also compensable.  Hubley v. Best Western Governor’s Inn, 52 Ark. \nApp. 226, 916 S.W.2d 143 (1996).  The basic test is whether there is a \ncausal connection between the two episodes.  Jeter v. B.R. McGinty \nMechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998).  The burden is on the \nclaimant to establish the necessary causal connection.  Nichols v. Omaha \nSch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148.  Whether there is a causal \nconnection is a question of fact for the Commission.  Jeter, supra.   \nIn the present matter, the Full Commission finds that the claimant’s \ncontinued symptoms related to his left upper extremity, left brachial plexus, \nand cervical spine are a natural consequence of the compensable left \nshoulder injury sustained by the claimant on November 18, 2021.  The \nCommission has the authority to accept or reject medical opinion and the \nauthority to determine its medical soundness and probative force.  Green \nBay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999).  The \nFull Commission attaches significant evidentiary weight to the opinions of \nDr. Bryant, Dr. Adametz, and Dr. Abeler.  We interpret the opinions of these \ntreating physicians to indicate that the claimant’s continued symptoms in his \nleft upper extremity, left brachial plexus, and cervical spine were causally \n\nHARRIS - H201405  17\n  \n \n \nconnected to the injury sustained by the claimant on November 18, 2021, \nwhich injury was accepted as compensable by the respondents.   \nB.  Filing of claim \nArk. Code Ann. §11-9-702(Supp. 2024) provides, in pertinent part: \n (b)  TIME FOR FILING ADDITIONAL COMPENSATION. \n(1)  In cases in which any compensation, including disability or \nmedical, has been paid on account of injury, a claim for \nadditional compensation shall be barred unless filed with the \ncommission within one (1) year from the date of the last \npayment of compensation or two (2) years from the date of \nthe injury, whichever is greater.   \n \n An administrative law judge found in part in the present matter, “3.  \nThat the claim involving injuries to the neck and left breast are (sic) barred \nby the statute of limitations.”  The Full Commission does not affirm this \nfinding.  As we have discussed, the parties stipulated that the claimant \nsustained a compensable injury to his left shoulder on November 18, 2021.  \nThe parties stipulated that “appropriate benefits were paid.”  On March 31, \n2022, the claimant filed with the Commission a “Form AR-C, CLAIM FOR \nCOMPENSATION.”  The CLAIM INFORMATION section of the Form AR-C \nindicated that the claim was for “additional benefits,” including “Additional \nMedical Expenses.”  The filing of a claim for additional benefits tolls the \nrunning of the statute of limitations.  Kent v. Single Source Transp., Inc., \n103 Ark. App. 151, 287 S.W.3d 619 (2008), citing Spencer v. Stone \nContainer Corp., 72 Ark. App. 450, 38 S.W.3d 909 (2001).  In the present \n\nHARRIS - H201405  18\n  \n \n \nmatter, the claimant’s claim for additional benefits filed on March 31, 2022 \nwas filed well within the two-year period required by Ark. Code Ann. §11-9-\n702(b)(1)(Supp. 2024) as well as within the one-year period enumerated in \nthe statute.  The applicable statute of limitations does not bar the claim for \nadditional benefits.   \n     After reviewing the entire record de novo, the Full Commission \nfinds that the claimant proved he was entitled to additional conservative, \nnon-surgical medical treatment as recommended by Dr. Bryant.  We find \nthat the claimant’s continued symptoms related to his left upper extremity, \nleft brachial plexus, and cervical spine were a natural consequence of the \ncompensable injury sustained by the claimant on November 18, 2021.  We \nfind that said medical treatment is reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Supp. 2024).  The Full Commission finds that \nthe claimant timely filed a claim for additional medical treatment, and that \nthe statute of limitations does not bar said claim.  For prevailing on appeal, \nthe claimant’s attorney is entitled to a fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(Supp. 2024).   \n  \n \n \n \n\nHARRIS - H201405  19\n  \n \n \nIT IS SO ORDERED.  \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding that the statute \nof limitations does not bar this claim. \nThe burden of proof is on the claimant to prove by a preponderance \nof the credible evidence of record that he timely filed his claim within the \nstatutorily mandated time frames. The burden of proof is not on the \nrespondents.  Stewart v. Ark. Glass Container, 2010 Ark. 198, S.W.3d 359 \n(2010).   \nArkansas Code Annotated § 11-9-702 sets forth the following \nlimitations:  \n(a) Time for filing additional \ncompensation.  \n \n(b) In cases in which \ncompensation, including disability \nor medical, has been paid on \naccount of an injury, a claim for \nadditional compensation shall be \nbarred unless filed with the \ncommission within one (1) year \nfrom the date of the last payment \nof compensation or two (2) years \n\nHARRIS - H201405  20\n  \n \n \nfrom the date of the injury \nwhichever is greater.  \n \n(c) A claim for additional \ncompensation must specifically \nstate that it is a claim for additional \ncompensation.  Documents which \ndo not specifically request \nadditional benefits shall not be \nconsidered a claim for additional \nbenefits.   \n \nIn cases where the information contained in an AR-C is vague or \ninsufficient, the Form’s filing is insufficient to toll the statute of limitations. \nOur Rules require strict construction of the Act.  Strict construction is \nnarrow construction and requires that nothing be taken as intended that is \nnot clearly expressed.  Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 \nS.W.3d 771 (2000).  The doctrine of strict construction requires this court to \nuse the plain meaning of the language employed.  White County Judge v. \nMenser, 2020 Ark. 140,597 S.W.3d 640 (2020). \nHere, the claimant filed his initial AR-C on March 31, 2022, for a \nshoulder and arm injury.  This form clearly states that the claimant \nsustained an injury to his shoulder and arm and specifically requests \nadditional benefits for that injury.  It was not until nearly three years after the \ndate of the accident in question that the claimant filed a second AR-C on \nJuly 15, 2024, asserting “multiple injuries, including his left shoulder and left \n\nHARRIS - H201405  21\n  \n \n \nbreast area and neck.”  The respondents denied the claim for left breast \nand neck injuries. \nIn assessing whether the claimant’s alleged left breast and cervical \ninjuries could be causally related to his compensable shoulder injury, the \nMajority goes beyond the call of the plain language of Arkansas Code \nAnnotated § 11-9-702.  To reach a conclusion on this issue, we are not \nasked whether the claimant’s request for additional medical treatment is \nrelated to his initial injury, but rather whether those injuries were specifically \ncontemplated in his timely AR-C filing.  They were not.  The claimant never \nfiled a claim  for left breast and cervical injuries until July 15, 2024, which \nwas well over two years from the date of the accident in question, \nNovember 18, 2021. \nBased upon a strict reading of our Rules and the guidelines set forth \nby our courts, it is clear that the claimant’s March 31, 2022 Form C filing \nwas insufficient to toll the statute of limitations regarding his alleged left \nbreast and neck injuries.  For these reasons, the ALJ’s findings should be \naffirmed. \nAccordingly, for the reasons set forth above, I respectfully dissent. \n  \n                                  _________________________________  \n     MICHAEL R. MAYTON, Commissioner","textLength":33232,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H201405 DEFRENCHI B. HARRIS, EMPLOYEE CLAIMANT HALL TANK CO., LLC, EMPLOYER RESPONDENT ACCIDENT FUND GENERAL INSURANCE CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 4, 2025","outcome":"affirmed","outcomeKeywords":["affirmed:1","denied:1"],"injuryKeywords":["shoulder","fracture","strain","wrist","cervical","rotator cuff","neck"],"fetchedAt":"2026-05-19T22:29:44.193Z"},{"id":"alj-H407461-2025-06-04","awccNumber":"H407461","decisionDate":"2025-06-04","decisionYear":2025,"opinionType":"alj","claimantName":"Timoteo Valdovinos","employerName":"Ark Opco Holdings, LLC","title":"VALDOVINOS VS. ARK OPCO HOLDINGS, LLC AWCC# H407461 June 04, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/VALDOVINOS_TIMOTEO_H407461_20250604.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"VALDOVINOS_TIMOTEO_H407461_20250604.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H407461 \n \nTIMOTEO VALDOVINOS, Employee CLAIMANT \n \nARK OPCO HOLDINGS, LLC, Employer RESPONDENT \n \nGREAT AMERICAN INS. CO., Carrier RESPONDENT \n \n \n \n OPINION FILED JUNE 4, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents  represented  by JASON  M.  RYBURN,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On May 7, 2025, the above captioned claim came on for a hearing at Springdale, \nArkansas.   A pre-hearing conference was conducted on January 22, 2025, and a pre-\nhearing  order  was  filed  on  that  same  date. A  copy  of  the  Pre-hearing  Order  has  been \nmarked Commission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  this \nclaim. \n 2.  The  employee/employer/carrier  relationship  existed  among  the  parties  on \nFebruary 12, 2024. \n\nValdovinos – H407461 \n \n-2- \n At  the  time  of  the  hearing,  the  parties  agreed  to  stipulate  that  claimant  earned \nsufficient wages to be entitled to compensation at the rates of $534.00 for total disability \nbenefits and $401.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Compensability of injuries to claimant’s cervical spine, head and whole  body \non February 12, 2024. \n 2. Related medical. \n 3. Temporary total disability benefits from May 1, 2024, through a date yet to be \ndetermined. \n 4. Attorney’s fee. \n 5. Notice. \n At  the  time  of  the  hearing,  claimant  clarified  that  his  request  of  compensability \ninvolves  his  cervical  spine,  head, and  bilateral  ears.  He  is  requesting  temporary  total \ndisability benefits from May 26, 2024, through a date yet to be determined.  \n The  claimant  contends he  sustained  a  compensable  injury  to  his cervical spine, \nhead, and bilateral ears on February 12, 2024, while working for Ark OpCo Holding LLC \nin  Rogers,  Arkansas,  when  he  was  attached  by  a  patient.  He  contends  he  is  owed \nmedical benefits in addition to temporary total disability benefits from May 1, 2024, to a \ndate  yet  to  be  determined.  Due  to  controversion  of  entitled  benefits,  respondents  are \nobligated to pay one-half of the claimant’s attorney’s fee. \n The respondents are not aware of any evidence of the alleged February 12, 2024 \nwork  injury.  No  notice  was  given  to  respondents  until  a  Form  AR-C  was  filed  on \n11/14/24  which  listed a  head  and  cervical  injury.  If the  claimant  has  been treated  by a \n\nValdovinos – H407461 \n \n-3- \nmedical  professional, he  has  withheld  those  medical  reports  from respondents  beyond \nthe allotted time for respondents to determine their position. No attorney’s fee is owed, \ntherefore,  and  none  should  be  awarded  because  this  claim  has  not  been  controverted \nper A.C.A. §11-9-715(2)(B)(iii). \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted  on January  22,  2025,  and  contained  in  a pre-hearing  order  filed  that  same \ndate are hereby accepted as fact. \n 2. The parties’ stipulation  that  claimant  earned  sufficient  wages to  entitle him to \ncompensation  at  the  rates  of  $534.00  for  total  disability  benefits  and  $401.00  for \npermanent partial disability benefits is also hereby accepted as fact. \n 3.  Claimant has  failed  to meet his  burden of  proving by a preponderance  of  the \nevidence  that he  suffered  compensable  injuries  to  his  cervical  spine,  head,  or  bilateral \nears on February 12, 2024.  \n \nFACTUAL BACKGROUND \n Claimant  is  a  43-year-old  man  who  began  working  for  respondent  as  a CNA  in \nOctober 2023. His job duties included helping residents with activities of daily life such \n\nValdovinos – H407461 \n \n-4- \nas  bathing;  feeding;  changing  clothes;  changing  diapers;  and  any  other  assistance \nneeded. He testified that on average he worked 32 hours per week. \n Claimant  testified that on  February 12,  2024,  he  was  working  in the  Lock  Down \narea which was short-staffed. He testified that at some point he was only CNA present \nin  that  area  when  a  resident  he  believed  to  be  named  Jim  went  into  the  room  of  a \nbedridden patient. He informed Jim that he could not be in the room “And before I knew \nit, I was on the floor. He was on top of me and he kind of hit me twice while I was on the \nfloor. He was on top of me. *** I stood up and tried to get away from Jim. And Jim is a \nbig guy. He took off his shoe, put it on his fist like a boxing glove, and ran at me and hit \nme in the head. I literally felt my brain hit the back of the skull.” Claimant testified that \nhis back, head, and neck hit the floor during this altercation.  \n Claimant  stated  that  he  reported  this  incident  to  a  charge  nurse  and  wrote  a \nstatement but there was no follow-up from respondent. On February 13, 2024, claimant \nsought  medical  treatment  from  Mercy  Clinic  with  a  complaint  of  headache,  double \nvision,  and  dizziness.  Claimant  underwent  a  CT  of  the  head  which  revealed  no \nbleeding. He was diagnosed with a headache, dizziness, and a concussion. The report \nalso states that claimant has a traumatic tympanic membrane perforation of his right ear \nwhich was noted on October 3, 2022. Claimant was given an off work note for February \n13-14.  \n On February 20, 2024, claimant was seen by his PCP, Dr. Archer at Mercy Clinic \nfor a follow-up for headache complaints. Dr. Archer diagnosed claimant’s condition as a \nconcussion without loss of consciousness and a perforation of the tympanic membrane. \nHe referred claimant for an evaluation with an ENT. \n\nValdovinos – H407461 \n \n-5- \n On May 4, 2024, claimant was evaluated at the emergency department at Mercy \nfor complaints of headaches. CT scans of the cervical spine and of the head were read \nas showing no evidence of acute injury. Claimant was released to return to work on May \n6, 2024, and was instructed to see his PCP, Dr. Archer.  \n Claimant returned to Dr. Archer on May 20, 2024, and in addition to complaining \nof  headaches, he also  complained  of  bilateral tinnitus. Dr.  Archer  stated  that  claimant \nsuffered from perforation of both tympanic membranes and referred him to audiology.  \n Claimant eventually came under the care of Dr. Kevin Lollar, an ENT specialist. \nHis initial evaluation with Dr. Lollar occurred on September 16, 2024. Dr. Lollar had the \nfollowing impression and plan for treatment.  \n1. Central perforation of tympanic membrane, left ear. Observation.  \n2. Other otitis externs, left ear, medical management with medication. \n3. Tinnitus, bilateral. Observation of both ears and an audiogram ordered. \nClaimant’s next visit with Dr. Lollar occurred on October 3, 2024, at which time \nDr.  Lollar  stated  that  claimant’s  left  ear  drainage  had  resolved  with  the  use  of \nmedication.  He  also  noted  that  the  audiogram  revealed  hearing  loss  in  both  ears  and \nrecommended a hearing aid evaluation.  \nOn November 20, 2024, Dr. Lollar performed a right bioDesin tympanoplasty for \nthe  right  tympanic  membrane  perforation.  In  a  follow-up  report  dated  March  10,  2025, \nDr.  Lollar  indicated  that  the  procedure  had  not  been  effective  and  a  new  procedure \nwould   be   scheduled. According  to  claimant’s  testimony,  he  underwent  another \nprocedure by Dr. Vaughn in April 2025. That medical report was not submitted into the \nrecord.  \n\nValdovinos – H407461 \n \n-6- \nClaimant has filed this claim contending that he suffered compensable injuries to \nhis  neck,  head,  and  bilateral  ears  on  February  12,  2024.  He  requests  payment  of \nmedical treatment, temporary total disability benefits, and a controverted attorney fee. \n \nADJUDICATION \n Claimant contends that he suffered compensable injuries to his neck, head, and \nbilateral ears on February 12, 2024, when he was knocked down and struck in the head \nby a resident. Claimant’s claim is for a specific incident, identifiable by time and place of \noccurrence.  \nIn order to prove a compensable injury as the result of a specific incident that is \nidentifiable   by   time   and   place   of   occurrence,   a   claimant   must   establish   by   a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \nAfter reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet his burden of proving a \ncompensable injury. \nAs previously noted, claimant testified that on February 12, 2024, he informed a \nresident that he could not be in the room of another resident. At that point, the resident \n\nValdovinos – H407461 \n \n-7- \nknocked  him  to  the  ground  and  then proceeded  to  strike  claimant  in  the  head  with  his \nshoe that he had put on his fist.  \nClaimant testified that he reported this incident to a charge nurse as required by \nrespondent  and  was  instructed  to  write  a  statement  regarding  the  incident.  Claimant \ncontends that he wrote this statement on a blank sheet of paper. Significantly, claimant \ndoes  not  know  the  name  of  the  charge  nurse  to  whom  he  reported  and  no  written \nstatement was introduced into the record. \nThe  only  other  person  to  whom  claimant  allegedly  reported  the  incident  was  an \nindividual named “Ryan”. Claimant testified that sometime in March, which would have \nbeen at least two weeks after the incident, he had a discussion with Ryan and notified \nhim  of  his  medical  treatment.  Claimant  believes  that  Ryan  is  part  of  management. \nNotably, claimant was not even sure of Ryan’s first name. \nQ Earlier you said Ryan. Is it Ryan or Brian? \nA Brian. \nQ Okay. And this meeting you had with Brian occurred – \nA I take back what I said. It is Ryan. \nQ It is Ryan? \nA Yes, with an R. \n \n Claimant apparently did not discuss this incident with anyone else at respondent, \nother than an unnamed charge nurse and an individual apparently named Ryan at least \ntwo weeks after the incident occurred.  \n Claimant  initially  sought  medical  treatment  on  February  13  from  Dr.  Rupali \nParadkar, and he admittedly did attribute his complaints to an incident at work the day \nbefore. However, with respect to the traumatic tympanic membrane, the medical reports \nstates that it was first noted on October 3, 2022. In fact, claimant admitted that he had \n\nValdovinos – H407461 \n \n-8- \nthe right ear perforation since childhood. I also note that the report of that date does not \nmention any issues with tinnitus or loss of hearing. Nor are there any objective findings \nnoted at that time.  \n On February 20, 2024, claimant was seen by his PCP, Dr. Archer who noted that \nclaimant  had  a  large  hole  in  his  right  tympanic  membrane  since  childhood.  Dr.  Archer \ndid not indicate that this condition had been aggravated by a work-related incident. On \nMay  4,  2024,  claimant  was  seen  at  the  Mercy  emergency  room  by  Dr.  Hugh  Jackson. \nAgain, there is no mention of tinnitus or loss of hearing. At that visit, claimant underwent \nCT scans of the head and cervical spine. Both of these scans were read as showing no \nevidence of injury.  \n On May 24, 2024, claimant returned to Dr. Archer and for the first time mentioned \nbilateral tinnitus. This is confirmed in Dr. Archer’s office note of March 10, 2025, in \nwhich  he  states  that  tinnitus  was  first  brought  up  by  claimant  on  May  24,  2024.  Thus, \ncomplaints of tinnitus were not made by claimant until more than three months after this \nalleged injury. \n When claimant sought medical treatment from Dr. Lollar on September 16, 2024, \nhe  gave  a  history  of  an  injury  in  January  2024  which  caused  a  concussion  and  some \near trauma. Dr. Lollar noted that since that time claimant’s hearing had been decreased \nand  that  he  had  no  prior  history.  This  is  incorrect  since  claimant  has  had  a  perforated \ntympanic membrane in his right ear since childhood. In addition, at the time of the next \nvisit with Dr. Lollar on October 3, 2024, claimant indicated that he had an ear infection \nat age nine “after which time he has had some decrease in hearing on that side.” Thus, \nclaimant had had a prior history of hearing loss. \n\nValdovinos – H407461 \n \n-9- \n It  should  also  be  noted  that  claimant  had  continued  to  work  at  respondent \nperforming  his  regular  job  duties  since  February  12,  2024.  That  changed  on  May  26, \n2024, not because of claimant’s physical condition, but because of a tornado. On May \n26, 2024, a tornado struck Rogers and respondent’s facility. Respondent’s facility in \nRogers  was  damaged  and  uninhabitable,  resulting  in  the  residents  moving  to  other \nfacilities.  Employees  of  the  Rogers  facility  were  given  the  option  of  transferring  to \nrespondent’s facility in Eureka Springs. Claimant testified that he chose not to transfer \nto  Eureka  Springs  due  to  his  health  and  the  drive  over  to  Eureka.  Claimant  has  not \nworked for respondent or any other employer since May 26, 2024, even though he was \ncontinuing to perform his regular job duties with respondent until the tornado. Other than \ntime he missed work due to medical visits, there is no indication that claimant has been \ntaken off work by his physicians since May 26, 2024, or has been given any restrictions.  \nQ Have   your   doctors   given you   any   restrictions   or \nlimitations? \nA I don’t think so. \n \n In  summary,  I  note  that  claimant  contends  that  he  reported  the  incident  on  the \nday  in  question  to  an  unnamed  charge  nurse.  Claimant  did  not  have  any other \nconversations  with  a  representative  of  respondent  until  some  time  in  March  when  he \napparently discussed his medical treatment with someone name Ryan who he believes \nis in management. I also note that CT scans of the claimant’s head and neck have been \nread as showing no acute injury. With respect to the bilateral ears, I note that claimant \nhas suffered from a perforated tympanic membrane of his right ear since childhood and \naccording to the history contained in Dr. Lollar’s medical report of October 3, 2024, \nclaimant  had  a  decrease  in  hearing  since  an  ear  infection  at  age nine.  Furthermore, \n\nValdovinos – H407461 \n \n-10- \nthere  were  no  complaints  of  tinnitus  or  loss  of  hearing  until  May  24,  2024,  more  than \nthree months after the alleged injury. \n Based on the foregoing, I simply find that claimant has failed to meet his burden \nof proving by a preponderance of the evidence that he suffered a compensable injury to \nhis head, neck, or bilateral ears while working for respondent on February 12, 2024. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that he suffered \na compensable injury to his head, neck or bilateral ears while working for respondent on \nFebruary 12, 2024. Therefore, his claim for compensation benefits is hereby denied and \ndismissed.  \n Respondents  are  liable  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $689.00. \n IT IS SO ORDERED. \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":16574,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H407461 TIMOTEO VALDOVINOS, Employee CLAIMANT ARK OPCO HOLDINGS, LLC, Employer RESPONDENT GREAT AMERICAN INS. CO., Carrier RESPONDENT OPINION FILED JUNE 4, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkan...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["cervical","back","neck","concussion"],"fetchedAt":"2026-05-19T22:39:28.514Z"},{"id":"alj-H404694-2025-06-02","awccNumber":"H404694","decisionDate":"2025-06-02","decisionYear":2025,"opinionType":"alj","claimantName":"Clayton Abel","employerName":"Easter Seals Arkansas","title":"ABEL VS. EASTER SEALS ARKANSAS AWCC# H404694 June 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ABEL_CLAYTON_H404694_20250602.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ABEL_CLAYTON_H404694_20250602.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H404694 \nCLAYTON B. ABEL, EMPLOYEE CLAIMANT \n \nEASTER SEALS ARKANSAS, EMPLOYER RESPONDENT \n \nRISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT \n \n \n OPINION FILED JUNE 2, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents represented by MELISSA WOOD, Attorney,  Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 19, 2025, the above captioned claim came on for a hearing at Fort Smith, Sebastian \nCounty, Arkansas. A pre-hearing conference was conducted on April 10, 2025, and a pre-hearing order \nwas filed on April 18, 2025. A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \nThere were no stipulations entered between the parties, as respondents denied claimant was \nan employee and therefore the Commission did not have jurisdiction over his claim.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1.  Whether claimant was an employee of respondent, Easter Seals Arkansas, on October \n10, 2022. \n \n2. If so, did claimant suffer a compensable injury on October 10, 2022. \n3. If so, is the claimant entitled to medical benefits and indemnity benefits. \n\nAbel-H404694 \n2 \n \n \n4. If so, is the claimant entitled to mileage for doctor’s visits.  \nAll other issues are reserved by the parties. \nThe claimant contends that “On October 10, 2022, the accident occurred. He was lifting a 44-\npound bag of dog food for a customer. The department manager, Ron, was not there. Clayton felt \nsomething  pop  in  his  left  shoulder. He  immediately  told  the  teacher  in  charge,  Sara  Duren,  of \nSouthside High School in Fort Smith. Ms. Duren responded back “if I can handle it, you can handle \nit” and Clayton continued his work shift that day. The claimant came home that evening complaining \nof left shoulder pain, and Christina took him to the doctor the next day October 11, 2022, with his \nPCP at UAMS Fort Smith. The injury at the time of initial visit was a possible torn rotator cuff. The \nPCP ordered the claimant pain meds, MRI.” \nThe respondents contend that “Arkansas Workers’ Compensation Commission does not have \njurisdiction of this matter, as there was no employer-employee relationship at the time of the incident. \nClaimant  was  participating  in  a  school  program  to  get  work  experience  and  was  never  deemed  an \nactual employee. This participation was through a grant program with Easter Seals where claimant was \na student at the time of the incident. In light of this, it is respondents’ position that the Commission \ndoes not have jurisdiction of this matter and should dismiss this claim accordingly. Alternatively, it is \nrespondents’ position that the medical documentation does not support a compensable injury, no does \nit support entitlement to benefits under the Act in the event compensability is found.”     \n           From a review of the entire record, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.    Claimant failed to appear at the hearing of this matter, and therefore failed to establish \nthis Court has jurisdiction of his claim. \n\nAbel-H404694 \n3 \n \n \n 2. Respondents’  motion  to  dismiss this  matter  pursuant  to  Arkansas  Workers’ \nCompensation Commission Rule 099.13 is granted. This dismissal is without prejudice.  \n \n FACTUAL BACKGROUND \n This matter was before Administrative Law Judge JayO. Howe on December 11, 2024, for a \nMotion  to Dismiss  filed  by respondent. Judge Howe’s Opinion  of  December  17,  2024,  was  not \nappealed by either party; it is blue backed to the record of this case. In it, Judge Howe sets for the \nchronology  of  this  matter  to  that  point:    Claimant  filed  an  AR-C  form  on  July  23,  2023, alleging a \nworkplace  injury  on  October  10,  2022. Respondents  filed  the  First  Report  of  Injury  and the  Form \nAR-2 on July 25, 2024, denying claimant was employed by respondent. A Motion to Dismiss was filed \non October 11, 2024, alleging the claimant had failed to prosecute his claim. Prior to the hearing on \nthat  motion,  claimant  corresponded  with  the  Court, objecting to  the  matter  being dismissed  and \nrequesting additional time to prosecute the claim. Judge Howe denied respondents’ motion.    \n This  case  was  originally  assigned  to  District  1,  which  includes  Pulaski  County,  Arkansas. \nSubsequently, it was determined that this matter should be transferred to District 2, as it was alleged \nthat the injury occurred in Fort Smith, Arkansas.  Claimant was told when the hearing was scheduled \nduring the prehearing conference. He also received the prehearing order containing the information \nregarding the date and time of the hearing by certified mail on April 24, 2025; the proof of delivery is \nblue backed to the record in this case. \n \nADJUDICATION \n \nRule 099.13 of the Arkansas Workers’ Compensation Commission provides, in pertinent part:  \n“Upon  meritorious  application  to  the  Commission  from  either  party  in  an \naction pending before the Commission, requesting that the claim be dismissed \nfor  want  of  prosecution, the  Commission  may,  upon  reasonable  notice  to  all \nparties, enter an order dismissing the claim for want of prosecution.” \n\nAbel-H404694 \n4 \n \n \n \nThis matter was scheduled for a full hearing in Fort Smith, Arkansas, on May 19, 2025, at 1:45 \nP.M. Respondent appeared with a witness, ready to defend this action. Claimant did not appear. After \ntwenty minutes had passed, the Court called the telephone number in the file for claimant, and was \ntold by the party answering that claimant must have forgotten that the hearing was being held that \nday. Respondent  then  made  an  oral  motion  for  a  dismissal  of  the  claim  pursuant  to  A.W.C.C.  R. \n099.13,  which  was  taken  under  advisement. Since  that  time, claimant  has  not  contacted this  Court \nwith an explanation as to why he could not attend the hearing as scheduled.  \n Under these facts, which includes the history of this matter before it was transferred to me, I \nfind claimant did not have good cause to fail to appear at the merits hearing on this claim. He received \nreasonable  notice  of  this  hearing  from  the  Commission.  Claimant failed, without  justification,  to \nestablish that this Court had jurisdiction of his claim. Having failed to prosecute his claim and having \nprovided no explanation to the Commission that would excuse his failure to appear at his hearing, I \nfind dismissal of the instant claim is justified under Rule 13 and hereby grant respondents’ motion. \nWhile the  Commission  has  the authority  to  dismiss  a  matter  with  prejudice, Loosey  v.  Osmose  Wood \nPreserving Co., 23 Ark. App. 137, 744 S.W.2d 402 (1988), I will exercise my discretion and dismiss this \nmatter without prejudice.    \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":7335,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404694 CLAYTON B. ABEL, EMPLOYEE CLAIMANT EASTER SEALS ARKANSAS, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED JUNE 2, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Arkans...","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:1"],"injuryKeywords":["shoulder","back","rotator cuff"],"fetchedAt":"2026-05-19T22:39:22.066Z"},{"id":"alj-H208599-2025-06-02","awccNumber":"H208599","decisionDate":"2025-06-02","decisionYear":2025,"opinionType":"alj","claimantName":"Leonard Mayfield","employerName":"Abb Motors & Mechanical, Inc","title":"MAYFIELD VS. ABB MOTORS & MECHANICAL, INC. AWCC# H208599 June 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MAYFIELD_LEONARD_H208599_20250602.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MAYFIELD_LEONARD_H208599_20250602.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H208599 \n \nLEONARD MAYFIELD, Employee CLAIMANT \n \nABB MOTORS & MECHANICAL, INC., Employer RESPONDENT \n \nGALLAGHER BASSETT SERVICES, INC., Carrier RESPONDENT \n \n \n \n OPINION FILED JUNE 2, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant  represented  by JARID  M.  KINDER,  Attorney  at  Law, Fayetteville,  Arkansas; \nalthough not present at hearing. \n \nRespondents  represented  by R.  SCOTT  ZUERKER,  Attorney  at  Law, Fort  Smith, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n This  case  comes  on  for  review following a hearing on respondents’ Motion to \nDismiss.  \n On February 8, 2023, Attorney Kinder filed Form AR-C requesting compensation \nbenefits for an injury occurring on February 16, 2022. A Change of Physician Order was \nentered on October 16, 2023; however, there was no activity after that date. As a result, \non April 8, 2025, respondents filed a Motion to Dismiss. A hearing was scheduled on the \nMotion  to  Dismiss  for  May  19,  2025.  Notice  of  the  hearing  was  sent  to  claimant  by \ncertified mail and was delivered April 18, 2025. By email dated April 15, 2025, Attorney \nKinder indicated that claimant had no objection to the Motion to Dismiss and waived his \nright to appear at the hearing. \n\nMayfield – H208599 \n \n-2- \n After my review of the respondents’ motion, the claimant’s response thereto, and \nall  other  matters  properly  before  the  Commission,  I  find  that  respondents  motion  to \ndismiss this claim should and hereby is granted. This dismissal is without prejudice and \npursuant to Commission Rule 099.13. \n IT IS SO ORDERED. \n \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":1827,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H208599 LEONARD MAYFIELD, Employee CLAIMANT ABB MOTORS & MECHANICAL, INC., Employer RESPONDENT GALLAGHER BASSETT SERVICES, INC., Carrier RESPONDENT OPINION FILED JUNE 2, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian ...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:39:24.192Z"},{"id":"alj-H303532-2025-06-02","awccNumber":"H303532","decisionDate":"2025-06-02","decisionYear":2025,"opinionType":"alj","claimantName":"Johnny Segraves","employerName":"Hytrol Conveyor Co. Inc","title":"SEGRAVES VS. HYTROL CONVEYOR CO. INC. AWCC# H303532 June 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Segraves_Johnny_H303532_20250602.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Segraves_Johnny_H303532_20250602.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303532 \n \nJOHNNY SEGRAVES, \nEMPLOYEE                                                                                                              CLAIMANT \n \nHYTROL CONVEYOR CO. INC., \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nCCMSI, \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED JUNE 2, 2025 \n \nHearing conducted on Friday, April 25,  2025,  before  the  Arkansas  Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Mr. Johnny Segraves, Pro Se, of Walnut Ridge, Arkansas.  \n \nThe Respondents were represented by Mr. S. Shane Baker, Attorney at Law, Jonesboro, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non December 31, 2024.  A hearing on the motion was conducted on April 25, 2025, in Jonesboro, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as  a Const/Agriculture  Machine \nworker. The date for Claimant’s alleged injury was on May 23, 2023. He reported his injury to \nRespondent/Employer on the  same  day. Respondents  admitted into  the  record Respondents’ \nExhibit 1, Order  of Withdrawal,  consisting  of 2 pages,  Respondents’ Exhibit  2, Entry  of \nAppearance, consisting of 2 pages, Respondents’ Exhibit 3, Motion  to Dismiss,  consisting  of  3 \npages, and Respondents’ Exhibit 4, email from claimant, consisting of 1 page. The Commission \n\nSEGRAVES, AWCC No. H303532 \n \n2 \n \nadmitted  into  evidence Commission  Ex.  1,  pleadings,  correspondence,  and  U.S.  Mail  return \nreceipts, consisting of 8 pages, as discussed infra. \nThe  record  reflects that on June 1,  2023,  a  Form  AR-1 was  filed  with  the  Commission \npurporting that Claimant’s disability began May 24, 2023. Also  on  June 1,  2023,  a  Form  AR-2 \nwas filed by Respondents accepting compensability. On June 11, 2024, Form AR-C was filed by \nClaimant’s then-attorney, Mark Peoples, with the Commission purporting that Claimant injured \nhis hip,  and as  a  compensable  consequence  of  his  alleged  hip  injury  he  has  developed  back \nproblems. Claimant’s counsel, Mark Peoples, filed a Motion to Withdraw on July  9,  2024.  The \nFull Commission granted the motion on August 7, 2024. \nOn December 19, 2024, Respondents’ counsel filed a Motion to Dismiss due to Claimant’s \nfailure to prosecute his claim. The Claimant was sent, on December 27, 2024, notice of the Motion \nto  Dismiss, via certified  and  regular  U.S.  Mail,  to  his last  known  address.  The  certified motion \nnotice was claimed by Claimant as noted on the January 3, 2025, return receipt. The Claimant did \nrespond  to  the  motion  in  an  email  dated  January  23,  2025.  There  the  Claimant  asked  the \nCommission to “dismiss any action to pursue a claim against Hytrol Conveyor Co.” Thus,  in \naccordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice of \nRespondents’ Motion to Dismiss hearing date at his current address of record via the United States \nPostal  Service  (USPS), First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-\nClass Mail, on February 21, 2025. The certified notice was claimed on February 26, 2025, return \nnotice. The hearing took place on April 25, 2025. And as mentioned before, the Claimant did not \nshow up to the hearing. \n \n \n\nSEGRAVES, AWCC No. H303532 \n \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the April 25, 2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to make a bona fide request for a hearing in more than six months pursuant \nto Ark. Code Ann. § 11-9-702(a)(4).  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION  \nUnder Ark. Code Ann. § 11-9-702(a)(4) “If within six (6) months after the filing of a claim \nfor compensation no bona fide request for a hearing has been made with respect to the claim, the \nclaim may, upon motion and after hearing, be dismissed without prejudice...”. Consistent  with \nArk.  Code  Ann. §  11-9-702(a)(4), the  Commission  scheduled  and  conducted  a  hearing,  with \nreasonable notice to the Claimant, on Respondents’ Motion to Dismiss hearing date. The certified \nhearing notice was claimed on February 26, 2025, per the return postal notice bearing the same \ndate. Thus,  I find by the preponderance of the evidence that reasonable notice was given to the \nClaimant.  \nArk. Code Ann. § 11-9-702(a)(4) allows the Commission, upon meritorious application, to \ndismiss an action pending before it due to a want of a bona fide request for a hearing within six \nmonths. The Claimant filed his Form AR-C on June 11, 2024. Since then, he has failed to request \n\nSEGRAVES, AWCC No. H303532 \n \n4 \n \na bona fide hearing. Therefore, I do find by the preponderance of the evidence that Claimant has \nfailed  to  prosecute  his claim  by  failing  to  request  a bona  fide hearing within  six  months.  Thus, \nRespondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6100,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H303532 JOHNNY SEGRAVES, EMPLOYEE CLAIMANT HYTROL CONVEYOR CO. INC., SELF-INSURED EMPLOYER RESPONDENT CCMSI, TPA RESPONDENT OPINION FILED JUNE 2, 2025 Hearing conducted on Friday, April 25, 2025, before the Arkansas Workers’ Compensation Commission (the Commi...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["hip","back"],"fetchedAt":"2026-05-19T22:39:26.354Z"},{"id":"alj-H401326-2025-05-28","awccNumber":"H401326","decisionDate":"2025-05-28","decisionYear":2025,"opinionType":"alj","claimantName":"Amy Buck","employerName":"Presbyterian Village, Inc","title":"BUCK VS. PRESBYTERIAN VILLAGE, INC. AWCC# H401326 May 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BUCK_AMY_H401326_20250528.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BUCK_AMY_H401326_20250528.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H401326 \n \n \nAMY BUCK,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nPRESBYTERIAN VILLAGE, INC.,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nATA WORKERS’ COMPENSATION SELF-INSURED TRUST/ \nRISK MG’T RESOURCES, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED MAY 28, 2025,  \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Wednesday, May 28, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Amy Buck, pro se, of Russellville, Pope County, Arkansas, failed and/or \nrefused to appear at the hearing.  \n \nThe respondents were represented by the Honorable Jarrod Parrish, Worley, Wood & Parrish, \nLittle Rock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Wednesday, May 28, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and Commission Rule 099.13 (2025 Lexis Replacement). \n        The  claimant herein initially  was  represented  by  counsel,  Ms.  Laura  Beth  York, of the \nRainwater,  Holt  &  Sexton  law  firm. By  unanimous  Full  Commission  order  issued  and  filed  on \nDecember 16, 2024, the Commission granted the claimant’s attorney’s motion to withdraw as the \nclaimant’s attorney of record. (Respondents’ Exhibit 1 at 7). \n\nAmy Buck, AWCC No. H401326 \n2 \n \n       Thereafter,  on February 7,  2025, the respondents filed with  the  Commission a  motion  to \ndismiss this claim without prejudice (MTD) for lack of prosecution. (RX1 at 9-10). Pursuant to \nthe applicable law the Commission provided the claimant due and legal notice of the respondents’ \nMTD, to which the claimant filed an objection via a letter dated and filed with the Commission on \nMarch  6,  2025. In her March 6, 2025, letter, the claimant objected to the respondents’ MTD; \nadvised she intended to continue to pursue her claim; and that she would “...be obtaining another \nattorney to handle this claim...”; and “Once I find another attorney, I would like to then request a \nhearing when I have legal representation.” (RX1 at 12) (Emphasis added). \n       By email to the ALJ and the claimant dated March 7, 2025, the respondents’ attorney advised \nthat,”...unless claimant is requesting a hearing on a specific benefit she claims is due her, I’m \ncontinuing to request a hearing on the dismissal request I have filed.” (RX1 at 13-15). The ALJ’s \noffice so advised the claimant who responded with another copy of her March 6, 2025, letter. The \nALJ then emailed the claimant clarifying and confirming that in her March 6, 2025, letter she was \nin fact intending to request a hearing on her request for additional medical care. By email to the \nALJ dated March 12, 2025, the claimant requested additional time to find an attorney. The ALJ \nresponded to the claimant’s email via an email dated March 14, 2025, on which he cc:’d the \nrespondents’ attorney and provided the respondents’ attorney the email thread which contained the \nclaimant’s March 12, 2025, as the claimant had failed to cc: the respondents’ attorney on the March \n12,  2025,  email  to  the  ALJ. The ALJ’s office then for a  second  time  sent  out  the  prehearing \nquestionnaire and related documents to the claimant and respondents’ attorney. (RX1 at 16-18).  \n       In a subsequent email to both the claimant and the respondents’ attorney dated March 14, \n2025, the ALJ wrote:  \n                      Ms. Buck, I will hold your claim file in my office for an additional \n                     30 days... – or until Wednesday, April 23, 2023 [sic, corrected to 2025] –  \n\nAmy Buck, AWCC No. H401326 \n3 \n \n                     for either your attorney or you to file your response to the prehearing  \n                     questionnaire documents with the Commission. If my office does not  \n                     receive your prehearing response by that date, we will set a hearing  \n                     on the respondents’ motion to dismiss, which I have held in abeyance  \n                     at this time. \n \n(RX1 at 16) (Bracketed material and emphasis added). The ALJ also reminded the claimant it was \n“very important – and  is,  in  fact,  a  legal  requirement”  that she  and/or  her  attorney  cc:  the \nrespondents’ attorney on any and all documents she files with the Commission as well as any and \nall written communication in any form including but not limited to emails that relate to substantive \nissues in her claim, and that the respondents were held to the same requirement. (RX1 at 16).  \n       When neither the claimant or any attorney acting on her behalf failed and/or refused to file her \nresponse  to  the  prehearing  questionnaire  by  the  stated  due  date  of  April  23,  2025,  on  April  24, \n2025, the ALJ’s office set this matter for a hearing on the respondents’ MTD filed February 7, \n2025. (RX1 at 19). The claimant was once again provided due and legal notice of the respondents’ \nMTD,  as  well  as  the date,  time,  and  place  of  the  subject  hearing.  This  time  the  claimant  failed \nand/or refused to file any response, via email or otherwise, or to respond to the MTD or hearing \nnotice in any way. (RX1 at 1-19).  \n       The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. (Hearing Transcript; RX1 at 1 - 19).  \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nclaimant’s voluntary MTD. Rather than recite a detailed analysis of the record, suffice it to say the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \n\nAmy Buck, AWCC No. H401326 \n4 \n \nreveals that although the ALJ provided her additional time on more than one (1) occasion to hire \nan attorney  and/or to actively prosecute her  claim by at the very least filing her response to the \nprehearing  questionnaire, the  claimant has failed  and/or  refused  to  do  so. Although on  two  (2) \nseparate occasions the ALJ granted the claimant’s requests allowing her additional time to find an \nattorney and/or to respond to the prehearing questionnaire, she failed and/or refused to do so. In \naddition, the claimant failed and/or refused to appear at the hearing and make any facts or argument \nas to why the respondents’ MTD should be denied at this time.  \n        Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having received due  and legal  notice  of the respondents’ MTD without prejudice \nfiled with the Commission on February 7, 2025,  as well as notice of the subject hearing \ndate, time, and place; and after the ALJ granted her additional time to retain an attorney to \nrepresent  her  or  to  file  her  response  to  the  prehearing  questionnaire, the  claimant failed \nand/or refused to retain an attorney, or to respond to the respondents’ MTD, or to take any \nsteps to actively prosecute her claim.  \n \n3. Therefore, the preponderance of the evidence compels the decision the respondents’ MTD \nwithout  prejudice  filed February 7,  2025,  should  be  and  hereby  is  GRANTED;  and this \nclaim  hereby  is  dismissed  without  prejudice  to  its  refiling  pursuant  to  the  deadlines \nprescribed by Ark. Code Ann. Section 11-9-702(a) and (b) Rule 099.13. \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                                                             ____________________________                                                                                      \n                                                                                 Mike Pickens \n    MP/mp                                                                             Administrative Law Judge \n\nAmy Buck, AWCC No. H401326 \n5","textLength":9145,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401326 AMY BUCK, EMPLOYEE CLAIMANT PRESBYTERIAN VILLAGE, INC., EMPLOYER RESPONDENT ATA WORKERS’ COMPENSATION SELF-INSURED TRUST/ RISK MG’T RESOURCES, INC. CARRIER/TPA RESPONDENT OPINION FILED MAY 28, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT ...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:3","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:41:22.102Z"},{"id":"alj-H404308-2025-05-28","awccNumber":"H404308","decisionDate":"2025-05-28","decisionYear":2025,"opinionType":"alj","claimantName":"Verlencia Gatewood","employerName":"Trinity Rail Maintenance Service","title":"GATEWOOD VS. TRINITY RAIL MAINTENANCE SERVICE AWCC# H404308 May 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Gatewood_Verlencia_H404308_20250528.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Gatewood_Verlencia_H404308_20250528.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H404308 \n \nVERLENCIA GATEWOOD, EMPLOYEE   CLAIMANT \n \nTRINITY RAIL MAINTENANCE SERVICE, EMPLOYER   RESPONDENT \n \nACE AMERICAN INS. CO, CARRIER/TPA   RESPONDENT \n \nBROADSPIRE SERVICES, INC., TPA   RESPONDENT \n \nOPINION FILED MAY 28, 2025 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on April  11,  2025,  in Jonesboro, \nCraighead County, Arkansas. \n \nClaimant represented herself, Pro Se, Jonesboro, Arkansas. \n \nRespondents were represented by Mr. Jason Ryburn, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on April 11, 2025. A prehearing telephone conference \ntook  place  on January 22,  2025.  A  prehearing  order  was  entered  on January  23,  2025, and \nsubsequently  entered  into  evidence  as  Commission  Exhibit  1,  without  objection  or  amendment. \nThe parties confirmed the stipulations and the issues at the hearing. The parties’ stipulations are \nset forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. The employer/employee/carrier/TPA relationship existed among the parties \non December 14, 2023, when Claimant allegedly sustained a compensable \ngradual onset injury to her right shoulder. \n \n3. Respondents have controverted this claim in its entirety. \n \n\nGATEWOOD H404308 \n \n2 \n \n \nThe parties have identified the following issues to be adjudicated: \n1. Whether  Claimant  sustained a compensable  injury  by  gradual  onset  to  her  right \nshoulder. \n \n2. Whether Claimant is entitled to reasonable and necessary medical treatment and related \nexpenses, including mileage and out of pocket expenses. \n \n3. Whether Claimant is entitled to Temporary Total Disability (TTD) from June 6, 2024, \nto a date to be determined.\n1\n \n \n4. What is Claimant’s average weekly wage and TTD compensation rate.\n2\n \n \n All other issues are reserved. \n \nCONTENTIONS \n Claimant contends that she has injuries to her shoulder, neck and arm from \npainting a railcar with a paint brush. She also contends that she obtained a fungus \ninjection from the rainwater that accumulates in the shop area. \n Respondents contend the Claimant did not suffer a compensable injury and is \nunclear which benefits are being requested. Respondents also contends that there are two \ninjuries alleged which seem to be separate, distinct, and should not be considered under \nthe same claim number. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary  record,  I  hereby  make  the  following  Findings  of  Fact  and  Conclusions  of  Law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n1\n Claimant clarified that she was never off work due to her shoulder injury but was terminated on June 6, 2024, for \nallegedly abandoning the job. However, the Respondents allege illegal drug use as the basis for the termination. \nNevertheless, the Claimant is seeking TTD from the time she was fired, June 6, 2024, to a date to be determined. \n2\n The parties could not reach an agreement as to average weekly wage and compensation rates which has now \nbecome an issue for the Commission to resolve. \n\nGATEWOOD H404308 \n \n3 \n \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant has not proven that she has sustained a gradual onset right shoulder injury \nwith objective findings.  \n \n4. Based  on  my  findings  of  no  compensability,  the  remaining  issues  of  reasonable  and \nnecessary  medical  treatment,  temporary  total  disability  benefits,  and  average  weekly \nwage along with compensation rates are moot and will not be addressed in this opinion \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Commission Ex. 1, Pre-Hearing Order Filed January 23, 2025, \nconsisting  of 5 pages  total,  Claimant did  not  properly  enter  any  exhibits  into  the  record. \nRespondents did not enter any evidence into the records. Forms AR-C, AR-2, and AR-1 will be \nblue-backed and made  a part of the evidentiary record. The Claimant was the only witness \ntestifying at the full hearing.  \nClaimant was employed as a career painter for the Respondent/Employer. The Claimant \nstarted working for the Respondent/Employer in June 2023 doing touch up work on rail cars. The \nClaimant would touch up five to seven cars daily, five days a week, ten hours a day. These rail cars \nwere 50 feet long. On December 14, 2023, the Claimant’s right shoulder became worse, so she \ntold Respondent/Employer about her right shoulder pain. The Claimant did not go and see a doctor, \nrather she took paid time off to give her shoulder time to heal and continued painting rail cars. \nHowever, the Claimant’s pain in her right shoulder reached a fever pitch on June 3, 2024. This \nresulted in a call to HR about her right shoulder pain. The Claimant then sought treatment at a \nmedical clinic recommended by Respondent/Employer on June 4, 2024. The Claimant was drug \ntested at the clinic and was positive for marijuana.  \n\nGATEWOOD H404308 \n \n4 \n \nThe Claimant, according to her testimony, was terminated for neglecting/abandoning her \njob immediately after her doctor’s appointment. Respondents dispute this narration and alleges she \nwas  fired  for testing  positive  for  drugs. The  Claimant  did  not  provide  any  medical  records \nwhatsoever showing objective findings of a right shoulder injury.  \nAdjudication \nA. Whether Claimant sustained a compensable injury to her right shoulder by \ngradual onset. \n Regarding regular injuries sustained by gradual onset, Ark. Code Ann. § 11-9-102(4)(A)(ii) \n& (a) (Repl. 2012) reads: \n(ii) An injury causing internal or external physical harm to the body and arising out \nof and in the course of employment if it is not caused by a specific incident and is \nidentifiable by time and place of occurrence, if the injury is: \n \n(a) Caused by rapid repetitive motion. \nIn addition to rapid repetitive motion, a claimant seeking workers' compensation benefits for such \na gradual-onset injury must prove that:  (1) the injury arose out of and in the course of his \nemployment; (2) the injury caused internal or external physical harm to the body that required \nmedical services or resulted in disability or death; and (3) the injury was the major cause of the \ndisability or need for treatment.  Ark. Code Ann. § 11-9-102(4)(A)(ii) & (E)(ii) (Repl. 2012).  In \nMalone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998), the Arkansas Supreme \nCourt held that there is a two-part test for determining whether an injury is caused by rapid \nrepetitive motion:  (1) the tasks must be repetitive; and (2) the repetitive motion must be rapid.  If \nthe first element is not met, the second is not reached.  Id.; Westside High School v. Patterson, 79 \nArk. App. 281, 86 S.W.3d 412 (2002).  Moreover, “even repetitive tasks and rapid work, standing \nalone, do not satisfy the definition.  The repetitive tasks must be completed rapidly.”  Malone, \nsupra. \n\nGATEWOOD H404308 \n \n5 \n \nClaimant has not proven by the preponderance of the evidence that she has sustained a \ncompensable injury to her right shoulder by gradual onset. The Claimant must first prove an injury \nthat arose out of and in the course of her employment. The Claimant has failed to prove a right \nshoulder injury. Though she testifies she has a right shoulder injury, she has not entered one \nscintilla of medical evidence into the record demonstrating that such an injury exists. Trans. p. 18, \nlines 18-25, thru p. 19, line 1.  The Claimant did go to a medical clinic, but she does not remember \nthe name of it. Trans. p. 15, lines 2-25, thru p. 16, lines 1-18. While at the unnamed clinic, she was \nnot administered an x-ray for Claimant’s alleged right shoulder injury. See Trans. p. 17, lines 1-2. \nThe Claimant testified that the clinic prescribed pain medication that she didn’t take. Trans. p. 19, \nlines 13-25, thru p. 20, lines 1-2. Moreover, there is no evidence of pain medication being \nprescribed.  \nIn summary, the Claimant did not enter any medical records into evidence whatsoever. \nWhen I asked Claimant at the end of the hearing what does she feel she has proven today. Trans. \np. 53, lines 4-14. Claimant stated, “To be honest, I don’t feel like I’ve proven anything.” Id. I \nconcur with her statement. Thus why, I must find that the Claimant has not proven by the \npreponderance of the evidence that she has sustained a compensable injury to her right shoulder \nby gradual onset.  \nMISCELLANEOUS ISSUES \n Based on my previous findings that Claimant has failed to prove she sustained a work-\nrelated right shoulder injury by gradual onset, the remaining issues regarding reasonable and \nnecessary medical treatment, temporary total disability benefits, are moot and will not be addressed \nin this opinion.  \n \n\nGATEWOOD H404308 \n \n6 \n \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ____________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":9540,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404308 VERLENCIA GATEWOOD, EMPLOYEE CLAIMANT TRINITY RAIL MAINTENANCE SERVICE, EMPLOYER RESPONDENT ACE AMERICAN INS. CO, CARRIER/TPA RESPONDENT BROADSPIRE SERVICES, INC., TPA RESPONDENT OPINION FILED MAY 28, 2025 Hearing before Administrative Law Judge, St...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["shoulder","neck","repetitive"],"fetchedAt":"2026-05-19T22:41:24.255Z"},{"id":"alj-H109939-2025-05-27","awccNumber":"H109939","decisionDate":"2025-05-27","decisionYear":2025,"opinionType":"alj","claimantName":"Wendy Peacock","employerName":"Conway Regional Med. Center","title":"PEACOCK VS. CONWAY REGIONAL MED. CENTER AWCC# H109939 May 27, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Peacock_Wendy_H109939_20250527.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Peacock_Wendy_H109939_20250527.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H109939 \n \nWENDY PEACOCK, EMPLOYEE   CLAIMANT \n \nCONWAY REGIONAL MED. CENTER, SELF INS. EMPLOYER   RESPONDENT \n \nRISK MANAGEMENT RESOURCES, TPA   RESPONDENT \n \nOPINION FILED MAY  27, 2025 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on April  1,  2025,  in Little  Rock, \nArkansas. \n \nClaimant was represented by Mr. Daniel E. Wren, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented by Ms. Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on April 1, 2025\n1\n. A prehearing telephone conference \ntook place on December 10, 2024. A prehearing order was entered on that date and subsequently \nentered into evidence as Commission Exhibit 1. The parties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. The self-insured employer/employee/third-party administrator relationship \nexisted  among  the  parties  on March  1, 2021,  when  Claimant  sustained \ncompensable injuries to her left foot. \n \n3. Respondents accepted the claim and paid benefits. \n \n4. The Claimant’s temporary total disability  (TTD)  benefits  rate is $364.00 \nand permanent partial disability (PPD) benefits rate is $273.00, weekly. \n \n \n \n \n1\n The original hearing date was February 18, 2025. However, due to inclement weather, it was cancelled and \nrescheduled for April 1, 2025. \n\nPEACOCK H109939 \n \n2 \n \n \nThe parties have identified the following issues to be adjudicated: \n1. Whether Claimant is entitled to additional reasonable and necessary medical treatment \nand related expenses, including a three-phase bone scan, EMG, and nerve conduction \nstudy of the left lower extremity. \n \n2. Whether  Claimant sustained  an  injury  to  her  back  as  a  compensable  consequence  of \nher stipulated compensable left foot injury.\n2\n \n \n3. Whether Claimant is entitled to reasonable and necessary medical treatment for her low \nback as a compensable consequence of the compensable left foot injury.\n3\n \n \n4. Whether Claimant is entitled to temporary total disability (TTD) from August 29, 2023, \nto a date yet to be determined. \n \n5. Whether  Claimant  is  entitled  to temporary partial disability  (TPD)  from  August  29, \n2023, to a date yet to be determined.\n4\n \n \n6. Whether Claimant’s attorney is entitled to a controverted attorney’s fee. \n \n All other issues are reserved. \n \nCONTENTIONS \nClaimant contends: \n She sustained an injury to her left foot on March 1, 2021, while moving a bed in \nlabor and delivery when it rolled over the top of her left foot.  She treated with Dr. Robert \nMartin at UAMS Ortho Clinic on Shackleford.  She has undergone three different \nsurgeries on her foot. \n The first surgery was on December 14, 2021, with Dr. Adam Head.  The second \n \n2\n This issue must be established before the third issue could be addressed. Therefore, it is added as an issue to \nproperly address Claimant’s third issue. \n3\n Claimant’s counsel stated that Respondents did not pay any benefits for the alleged back injury. Thus, the word \n“additional” that is reflected on my prehearing order, for this issue, is now removed without objection from the \nparties. \n4\n Claimant motioned to add the issue of TPD benefits to the hearing, without objection from Respondents’ counsel, \nand I granted the motion. \n\nPEACOCK H109939 \n \n3 \n \nsurgery was on August 12, 2022, with Dr. Jesse Burks.  He kept her on non-weight \nbearing for a period of time.  She used a knee scooter due to swelling in her foot.  Dr. \nBurks noted on October 26, 2022\n5\n, that she may possibly have complex regional pain \nsyndrome (CRPS) and recommended her to see Dr. Carlos Roman.  Dr. Roman did an \nindependent medical evaluation (IME) on her on May 16, 2022.  He did not feel she had \nthe criteria for CRPS.  Dr. Roman referred her back to Dr. Burks for additional treatment.  \nDr. Burks\n6\n did a third surgery on February 13, 2023. She continued to have pain and was \nseen again by Dr. Roman who felt like she met all the criteria for reflex sympathetic \ndystrophy (RSD) at that time.  She underwent sympathetic blocks.  She was released \nfrom Dr. Martin and Dr. Roman and received impairment ratings.  She underwent a \nfunctional capacity evaluation (FCE) test on October 16, 2023, which reflected that she \nhad a combined impairment rating of five percent to the whole person. \n After continued pain, she was seen by Dr. Barry Baskin for a second \nopinion/IME.  Dr. Baskin opined that she clearly has some nerve problems in the left \nfoot.  He stated that because of the peripheral nerve issues that she has, it could easily be \nconfused with CRPS.  Dr. Baskin opined that he thinks she does have some low back \npain, and that the low back pain might well have resulted from her walking with altered \ngait mechanics because of left foot problems, the walker boot, and knee scooter.  Dr. \nBaskin has recommended a three-phase bone scan and EMG and nerve conduction \nstudies of the left lower extremity, which have not been approved by workers’ \ncompensation. \n \n5\n   My review of the file shows Dr. Burks referred Claimant to Dr. Roman on April 13, 2022. \n6\n   My review of the file shows Dr. Martin performed 3\nrd\n and final surgery.  I, also, admonish the Claimant’s \ncounsel to ensure that his contentions are accurate concerning doctors and dates. \n\nPEACOCK H109939 \n \n4 \n \n \nRespondents contend: \n All appropriate benefits are being paid regarding Claimant’s left lower extremity \ninjury sustained on March 1, 2021.  Treatment recommended by Dr. Baskin is not \nreasonable and necessary associated with the same.  All appropriate temporary total \ndisability benefits have been paid. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore,  after  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  the \nevidentiary  record,  I  hereby  make  the  following  Findings  of  Fact  and  Conclusions  of  Law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant has proven by the preponderance of the evidence that she is entitled to \nadditional  reasonable  and  necessary  medical  treatment,  including  a three-phase  bone \nscan, an EMG, and a nerve conduction study of the left lower extremity.  \n \n4. The Claimant has proven by the preponderance of the evidence that she has sustained \nan injury to her low back as a compensable consequence of her stipulated compensable \nleft foot injuries. \n \n5. The Claimant has proven by the preponderance of the evidence that she is entitled to \nreasonable  and  necessary  medical  treatment  for her compensable  consequence low \nback injury. \n \n6. The Claimant has not proven by the preponderance of the evidence that she is entitled \nto TTD from August 29, 2023, to a date yet to be determined. \n \n7. The Claimant has not proven by the preponderance of the evidence that she is entitled \nto TPD from August 29, 2023, to a date yet to be determined. \n \n8. Claimant has not proven by the preponderance of the evidence that she is entitled to a \ncontroverted attorney’s fee. \n \n \n\nPEACOCK H109939 \n \n5 \n \n \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, medical records, that consists of 156 pages, \nRespondents’ Exhibit 1, medical records, that consist of 30 pages, Respondents’ Exhibit 2, DFA \nemployment application, consisting of 6 pages, and Commission Exhibit 1, Pre-Hearing Order \nfiled December 10, 2024, that consists of 5 pages. The Claimant’s and Respondents’ post hearing \nbriefs are blue-backed and made a part of the record. The Claimant was the only witness testifying \nat the full hearing.  \nClaimant was employed as a Patient Care Tech for the Respondent employer. On March 1, \n2021, Claimant was moving a hospital bed when it rolled over the top of her left foot, resulting in \ninjury. On March 3, 2021, Claimant visited Dr. Gil Johnson at College Park Family Clinic and was \ndiagnosed with a “crush injury of soft tissue swelling of left foot...”. Claimant Ex. 1, pp. 4-5. \nClaimant did not have a fracture in her left foot. Id. Nevertheless, Claimant was placed on \nsedentary work. Claimant Ex. 1, p. 6. Respondents accepted the left foot injury as compensable. \nClaimant visited Dr. Johnson the next day, March 4, 2021, and complained that her pain \nwas worse. Claimant Ex. 1, pp. 8-9. Dr. Johnson’s progress note stated that most of her pain was \non the ventral aspect at the base of the left great toe over the metatarsal area. Id. Dr. Johnson also \nnoted soft tissue swelling and the potential of a deep hematoma. Id. The Claimant’s x-ray did not \nshow any fractures nor disruptions of the joint spaces, and her circulation was intact. Id.  Dr. \nJohnson recommended crutches and left Claimant on sedentary work restrictions. Id. On March 8, \n2021, Claimant continued to have pain and swelling in the left foot, primarily at the distal first and \nsecond metatarsal – phalangeal joint. Claimant Ex. 1, p. 10-11. Dr. Johnson ordered another x-ray \n\nPEACOCK H109939 \n \n6 \n \nof her left foot and placed her in an OCL fiberglass splint for support. Id. Dr. Johnson noted that \nClaimant had a significant crush injury and contusion to her left foot. Id. \nOn March 10, 2021, Claimant continued to have “soft tissue swelling at the base of the left \ngreat toe over the distal metatarsal ....” The second x-ray again confirmed there were no fractures. \nId. at 11. On March 18, 2021, Claimant had a follow-up visit with Dr. Johnson and complained \nabout continued discomfort at the base of her left second and third metatarsal/toes. Claimant Ex. \n1, p. 17. Dr. Johnson noted soft tissue swelling and pain with palpation and stated that this affects \nher gait. Id. Dr. Johnson recommended that Claimant get an MRI of her left foot to look for “occult \nfracture or other soft tissue or ligament or tendon damage....” Id. Claimant remained on sedentary \nwork restrictions. Id. Dr. Samuel Edwards authored the MRI report dated March 23, 2021, finding \nthat Claimant suffered from the “Strain of the lateral head of the flexor hallucis brevis and adductor \nhallucis muscles with partial tear of the flexor hallucis brevis tendon at the attachment to the lateral \nsesamoid.” Claimant Ex. 1, p. 21-22. On March 24, 2021, Dr. Johnson recommended the Claimant \nsee an orthopedist. Id.  \nOn April  7,  2021,  Claimant  saw  Dr.  James  Head,  Orthopedic  Surgeon,  at  Conway \nOrthopaedic and Sports Medicine Center. Claimant Ex. 1, pp. 23-24. Dr. Head examined Claimant \nand her records and likewise concluded that she has a left lateral sesamoid fracture; and he told \nher to take over-the-counter pain medications, wear a rigid shoe insert, and get some rest. Id. On \nJuly 15, 2021, the Claimant complained about her pain worsening the longer she was on her feet. \nClaimant’s Ex. 1, pp. 25-26. Dr. Head discussed nonsurgical versus surgical treatment, explaining \nthat surgical treatment would likely require two months off work. Id. The patient declined surgery \ntreatment due to financial constraints. Id. However, on November 12, 2021, Claimant had a follow-\nup visit with Dr. Head and this time requested surgery since she had been in pain for the past \n\nPEACOCK H109939 \n \n7 \n \nseveral months. Claimant Ex. 1, pp. 29-30. Dr. Head explained that the surgery would include “a \nleft fibular sesamoid excision with possible neuroma excision of the peroneal nerve, and possible \nperoneal nerve excision. Id. Dr. Head gave Claimant an injection of 40mg of Depo-Medrol and \nscheduled her surgery for December 14, 2021. Id.  \nOn December 9, 2021, Claimant reported to Dr. Head that she had minimum improvement \nin pain, and that she could not put weight on her left foot, due to her favoring it, resulting in a trip \nto the emergency room. Claimant Ex. 1, pp. 33-34. She also informed Dr. Head that she recently \nhad an inversion sprain. Id. Dr. Head ordered an MRI of the left ankle to evaluate for a subtalar \nstress fracture. Id. The Claimant’s gait was altered due to the pain in her left foot. Id. Dr. Head \nbelieved this could have caused the Claimant to develop a stress fracture. Id. He noted that an MRI \nof her left ankle would be helpful prior to the surgery to ensure Claimant did not need a secondary \nprocedure after the initial surgery. Id. On December 13, 2021, the Claimant saw Dr. Head for \nanother follow-up where she reported aching and sharp pain in the outer side of her left ankle \nwhenever she walked. Claimant Ex. 1, pp. 35-36. Dr. Head discussed Claimant’s MRI of her left \nankle, noting that she had a calcaneal stress fracture that was caused by the way she was walking \ndue to the pain in her foot. Id.  This was treated non-operatively by her not putting any weight on \nit for two weeks. Id. The Claimant eventually underwent her surgery on December 14, 2021.  \nOn February 23, 2022, Claimant had a ten-week follow-up visit with Dr. Head. Claimant \nEx. 1, pp. 43-44. The Claimant reported that she was still experiencing some pain on the lateral \naspect of the hindfoot that radiated across the anterior aspect of her ankle. Id. Claimant described \nher pain as an intermittent aching pain with occasional sharp pains. Id. Dr. Head instructed \nClaimant to continue  “Vitamin  D  supplementation  and  bone  stimulator.” Id. Dr.  Head  also \nrecommended physical therapy for scar desensitization. Id.  \n\nPEACOCK H109939 \n \n8 \n \nOn March 23, 2022, Claimant had a 3.5-month surgical follow-up, where she was given a \nMedrol Dosepak for pain and swelling. Claimant Ex. 1, pp. 45-46. The Claimant reported swelling \nwhen she was on her left foot for prolonged periods of time, and that she still experienced a \nshooting pain starting on the lateral hindfoot that radiated down the lateral side of her foot. Id. Dr. \nHead discussed surgical options if Claimant continued to fail conservative treatment. Id.  \nOn April 13, 2022, the Claimant saw Dr. Jesse Burks, a podiatric doctor, at Bowen Hefley \nOrthopedics. Claimant Ex. 1, pp. 47-49. The Claimant rated her pain as an 8/10. Id. She described \nher pain as sharp, stabbing, throbbing, aching, and shooting. Id. She further stated that symptoms \ncome and go and are made worse with sitting, stairs, moving, walking, and standing. Id. She \nreported that her problem was unchanged, and she still experienced bruising, swelling, numbness, \nstiffness, limping, popping, tingling, and weakness. Id. Dr. Burks diagnosed her with possible \ncomplex regional pain syndrome, status post list from fracture dislocation, and peroneus brevis \ntendon tear. Id. Dr. Burks recommended an evaluation for possible RSD to confirm or exclude the \ndiagnosis. Id.  \nOn May 16, 2022, Claimant met with Dr. Carlos Roman for an IME. Claimant’s Ex. 1, pp. \n50-52. Dr. Roman reviewed Claimant’s bone scan of her left lower extremity, which showed no \nevidence of CRPS. Id. Dr. Roman noted the “flow, pooled, and delayed images demonstrated good \nsymmetric flow.” Id. The Claimant reported that she still had pain over the surgical incision and \n“left ankle on the lateral aspect with extension and flexion as well as prolonged weight-bearing.” \nId. Dr. Roman recommended compression therapy for her foot. Id.  \nOn June 14, 2022, the Claimant saw Dr. Burks described having significant pain through \nthe midfoot and over the course of her peroneal tendons. Claimant Ex. 1, pp. 53-55. Dr. Burks \ndiscussed Claimants surgical options, which included a peroneal debridement and repair, and \n\nPEACOCK H109939 \n \n9 \n \narthrodesis  of  the  medial  and  intermediate  cuneiform  and  the  immediate  cuneiform  second \nmetatarsal. Id. Dr. Burks advised Claimant that these treatments would include six weeks of \n“nonweightbearing with 3 to 4 weeks in a walking boot.” Id. Dr. Burks gave another option of pain \nmanagement under the care of Dr. Roman. Id. The Claimant chose the surgery recommended by \nDr. Burks, and that procedure was done on August 12, 2022. Claimant Ex. 1, pp. 61-64.  \nOn August 17, 2022, Claimant had a follow-up with Dr. Burks where she stated that she \nwas doing well, and that her pain was well-controlled. Claimant’s Ex. 1, pp. 63-66. She denied any \nsignificant discomfort in her calf or thigh. Id. On September 19, 2022, Dr. Burks initiated a \ntreatment plan that involved weightbearing on her left foot with the aid of a cam walker, as \ntolerated.  Claimant’s  Ex.  1,  pp.  70-71.  On  October  26,  2022, Claimant  saw  Dr.  Burks  and \ncomplained about severe pain in her left foot and ankle. Claimant Ex. 1, pp. 75-77.  Dr. Burks \nordered an MRI of the left ankle. Id. The MRI revealed extensive stress reaction throughout the \nfoot and ankle without fracture or signs of any full-thickness cartilage loss at the ankle, along with \na peroneus longus and brevis tendinopathy with split tear of the brevis. Claimant Ex. 1, p. 78.  \nOn  November  1,  2022,  the  Claimant  informed  Dr.  Burks  that her condition  had  not \nchanged. Claimant Ex. 1, pp. 79-81. Dr. Burks believed that Claimant had multiple signs consistent \nwith CRPS, but he deferred to Dr. Roman. Id. Dr. Burks felt that on the MRI the peroneal tendon \nrepair was fine, but she did have some fluid collection consistent with post-surgical changes. Id. \nDr. Burks also felt that the fracture mentioned was old and clinically not symptomatic. Id. On \nNovember 2, 2022, Dr. Roman wrote that he likewise believed that Claimant could possibly have \nCRPS. Claimant Ex. 1, pp. 82-83.  \nDue to Claimants altered gait from having the work-related injury and multiple surgeries, \nthe Claimant alleges that she suffers from back pain. On November 21, 2022, she saw Dr. Billy \n\nPEACOCK H109939 \n \n10 \n \nMcBay concerning left foot pain and right-sided back pain. Claimant Ex. 1, pp. 85-88. Dr. McBay \ndiagnosed her with acute right-sided low back pain with right-sided sciatica. Id. Dr. McBay also \ndiagnosed her with age-related osteoporosis without current pathological fracture. Id. Dr. Burks \nordered an x-ray of Claimant’s spine and referred her to Dr. Noha Mohamad for treatment of \nosteoporosis of both hips. Id. The x-ray report revealed only mild degenerative changes, most \npronounced in the lower lumbar spine, L4, L5, and S1. Id. Despite this, Dr. McBay still diagnosed \nClaimant with acute right-sided low back pain with right-sided sciatica. Claimant’s Ex. 1, pp. 91-\n92.  \nOn December 14, 2022, Claimant visited Dr. Burks again complaining about severe pain \nin her left foot. Claimant’s Ex. 1, pp. 94-96. Per the report of that appointment, Claimant could not \nidentify one particular area that hurt, however, the area that seemed to bother her the most was \naround the second and third metatarsal heads. Id. Nevertheless, Dr. Burks diagnosed her with \nchronic pain in her left foot, secondary to the injury. Id. He gave her an injection to help localize \nthe pain. Id.  \nOn January 6, 2023, Claimant visited Dr. Robert Martin at UAMS Orthopedic Clinic for \nan evaluation of her left foot. Claimant’s Ex. 1, pp. 97-105. Dr. Martin noted that her past surgeries \nhad failed, and her implants were not really even in the bone. Id. Dr. Martin further noted that the \nsite of the injury was not in the area where all her surgeries had been performed. Id. Dr. Martin \nwrote that he believed that Claimant would require a revision midfoot arthrodesis with removal of \nthe failed orthopedic implants. Id. He believed this would provide some improvement in pain. Id. \nDr. Martin also recommends exploration of the distal peroneal tendons in the site of previous \nsurgery because she  has  significant  symptoms  there. Id.  Dr.  Martin added: “the  nerve  type \nsymptoms from deep peroneal nerve irritation and numbness, hyperesthesias in the dorsal foot may \n\nPEACOCK H109939 \n \n11 \n \nbe permanent based on the chronicity of her problem.” Id. The Claimant agreed to have the surgery, \nand it was performed on February 13, 2023. Claimant Ex. 1, pp. 106-108. \nOn March 14, 2023, Claimant met with Dr. Lily Guastella at Conway Regional Health \nSystem concerning back pain. Claimant’s Ex. 1, pp. 112-120. Dr. Guastella ordered an MRI for \nher lumbar spine. Id. The MRI showed “Moderate facet arthropathy at L4-L5 with a right-sided \nfacet effusion and mild surrounding soft tissue edema and enhancement, indicating acute reactive \ninflammatory changes. There are small ganglion cyst formation extending posteriorly from the \nfacet.” Id. (emphasis added) The report also concluded that Claimant had a mild bilateral neural \nforamen stenosis at L4-L5, and no significant spinal canal stenosis at any level. Id. Dr. Guastella \nnoted that the Claimant had used a walking boot and rolling scooter, off and on, for the past two \nyears since her work-related injury. Claimant Ex. 1, pp. 131-133. Savanah Bradbury, Physician \nAssistant, noted that Claimant had “degenerative arthritis at L4-L5.” Id. Ms. Bradbury did note \nsome fluid signal in the right facet joint, but no spondylolisthesis. Id. She recommended physical \ntherapy for core low back stretching and strengthening exercises as well as gait training, along \nwith the continued use of a boot and scooter. Id.  \nOn April 27, 2023, Claimant had a 10-week follow-up visit with Dr. Martin and reported \nthat her pain had improved overall, but that she still had significant nerve type pain such as itching \nand burning. Claimant Ex. 1, pp. 134-136. Since Claimant was doing well overall, Dr. Martin \nscheduled another visit a month out. Id. \nOn May 25, 2023, Claimant returned to Dr. Martin for a follow-up, where she continued to \ncomplain about significant tenderness with light touch and palpation of her diffuse mid and \nforefoot. Claimant’s Ex. 1, pp. 137-139. Dr. Martin recommended that Claimant continue to be \ntreated by Dr. Roman and that she remains on light duty. Id. Dr. Roman saw Claimant again on \n\nPEACOCK H109939 \n \n12 \n \nJune 12, 2023, and noted that her left foot pain had a more indicative diagnosis of CRPS by \nBudapest criteria. Claimant Ex. 1, pp. 140-141. Dr. Roman decided to set Claimant up for a series \nof lumbar sympathetic blocks on the left side, since the initial cause of the foot pain has been \nresolved. Id. \n On July 20, 2023, Dr. Martin placed the patient at “maximum medical improvement, \npermanent work restrictions are limited ladder and stairs, no standing more than 30 minutes an \nhour, allowed breaks as needed.” Claimant Ex. 1, pp. 143-145. Dr. Martin gave the following \nimpairment rating of 4% to the whole person, 10% to the lower extremity, and 14% to the foot. Id. \nDr. Roman, on August 29, 2023, placed Claimant at maximum medical improvement and decided \nagainst the lumbar sympathetic blocks because the sympathetic tone had resolved sufficiently. \nClaimant Exhibit Ex. 1, pp. 146-147. Dr. Roman also opined that her CRPS, left lower extremity, \ntype 1, resolved. Id. Dr. Roman stated he would assist her with medication management; and he \nencouraged her to get back into the workforce. Id. On October 2, 2023, he gave her a 1% \nimpairment rating to the first and second metatarsal joint. Claimant Ex. 1, p. 150. Based on the \ndiscrepancy of ratings by Dr. Martin and Dr. Roman, an impairment evaluation was done by Casey \nGarretson and Rick Byrd at Functional Testing Centers, Inc., on October 16, 2023. Their report \nreflects that a combined rating of 5% to the body as a whole was appropriate. Id.  \nOn July 22, 2024, Dr. Barry Baskin was asked to give a second opinion on Claimant’s \ncondition. Claimant’s Ex. 1, pp. 152-156.  Per his report he reviewed Claimant’s medical history \nand personally examined her. Id. Dr. Baskin opined that the Claimant “may” have CRPS that has \ngone into remission and come back again. Id. He stated that “Frequently peripheral nerve lesions \nmanifest like CRPS.” Id. Dr. Baskin’s examination revealed that Claimant had “allodynia, some \nmild color changes in the skin over the course of the evaluation, and temperature changes.” Id. He \n\nPEACOCK H109939 \n \n13 \n \nstated that these symptoms could be from the effects of the nerve resections that were done in the \nfirst surgical procedure. Id. Ultimately, Dr. Baskin’s inclination was that the Claimant has chronic \nnerve pain that comes from the “nerve resections more than CRPS.” Id. He believed that a three-\nphase bone scan “might” give some useful information, and a nerve conduction study “could” \nproduce  valuable  information concerning CRPS. Id. However,  Dr.  Baskin  read  Dr. Head’s \noperative note concerning the nerve resections and admitted that they may not show up on an EMG \nor nerve conduction study. Id. Nevertheless, he believed the test would be helpful in looking for \n“objective findings.” Id. He further stated that the 3-phase bone scan would be diagnostically \nbeneficial. Id. \nAccording to Dr. Baskin’s report, he does believe that the Claimant has some low back pain \nand that the low back pain might well have resulted from her walking with an altered gait \nmechanics because of the left foot problems, the walker boot, and the knee scooter. Id. He stated \nthat she Claimant  has  minimal  degenerative  changes  in  her  lumbar  spine  and  some  facet \narthropathy at L4-L5. Id. Dr. Baskin stated that this low back injury is a “little more clear-cut than \nthe left foot.” Id. He wrote that he does not believe that the Claimant is at maximum medical \nimprovement for her low back, and that Claimant has a clear-cut facet arthropathy that is most \nlikely degenerative in nature but appears to be aggravated from her gait mechanic alterations and \nthe  scooter. Id.  Dr.  Baskin added  that an EMG  and  nerve  conduction  study  of  both  lower \nextremities would be useful, and that Claimant would benefit from a facet block in the right L4-5 \nfacet. Id.   \nAdjudication \nA. Whether Claimant is entitled to additional reasonable and necessary medical \ntreatment and related expenses, including a three-phase bone scan, EMG, and \nnerve conduction study of the left lower extremity. \n\nPEACOCK H109939 \n \n14 \n \nUnder Arkansas Code Annotated § 11-9-508(a) (Repl. 2012), which I find applies to this \nclaim, that an employer shall provide for an injured employee “such medical . . . services . . . as \nmay be reasonably necessary in connection with the injury received by the employee.”  See Wal-\nMart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  The claimant must prove \nby a preponderance of the evidence that the subject medical treatment is reasonable and necessary.  \nId.; Geo Specialty Chem. v. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).  The standard \n“preponderance of the evidence” means the evidence having greater weight or convincing force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. \n491, 206 S.W.2d 442 (1947).  What constitutes reasonable and necessary medical treatment is a \nquestion of fact for the Commission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 \nS.W.3d 396 (2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  To prove \nher entitlement to the requested treatment, Claimant must also prove that it is causally related to \nher stipulated compensable left foot injuries of March 1, 2021.  See Pulaski Cty. Spec. Sch. Dist. \nv. Tenner, 2013 Ark. App. 569, 2013 Ark. App. LEXIS 601.  A claimant is not required to furnish \nobjective medical evidence of her continued need for medical treatment.  Castleberry v. Elite Lamp \nCo., 69 Ark. App. 359, 13 S.W.3d 211 (2000). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission.  White v. Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness but may accept and translate into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. The \n\nPEACOCK H109939 \n \n15 \n \nCommission is authorized to accept or reject a medical opinion and is authorized to determine its \nmedical soundness and probative value.  Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 \nS.W.3d 878 (2002); Green Bay Packing v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999). \nThe Claimant is seeking a three-phase bone scan, an EMG, and a nerve conduction study \non her left foot based on Dr. Baskin’s second opinion report. Claimant Ex. 1, pp. 152-156. Dr. \nBaskin in his report struggles as to whether the Claimant has neuropathic pain or CRPS. Id. Dr. \nBaskin admitted that his examination of Claimant was “a little perplexing because the peripheral \nnerve issues that she has could easily be confused with reflex sympathetic dystrophy or CRPS.” \nId. He further noted that frequently peripheral nerve lesions manifest like CRPS. Id. Dr. Baskin \ndid find that the Claimant did have “allodynia, some mild color changes in the skin over the course \nof our evaluation, and temperature changes.” Id. But he further admitted that these findings could \nbe the “effects of the nerve resections that were done in the first surgical procedure.” Id. Dr. Baskin \ndid not have a diagnosis for Claimant’s left foot pain; rather, he recommended a three-phase bone \nscan, an EMG, and a nerve conduction study on her left foot. However, based on Dr. Head’s \noperative note stating the nerve resections were branches of the superficial peroneal and deep \nperoneal very distally down into the forefoot area, Dr. Baskin admitted that these surgical changes \n“may not show up on an EMG or nerve conduction studies...”. Id. at 155. Despite that, Dr. Baskin \nthought the studies would be helpful in looking for “objective findings.” Id.  \nConsidering Dr. Baskin’s recommendation, it cannot be ignored that a bone scan was done \non April 28, 2022, showing no evidence of CRPS. Claimant Ex. 1, p. 51. There Dr. Roman noted: \n“The flow, pooled, and delayed images demonstrated good symmetric flow.” Id.  However, months \nafter this bone scan was done, both Dr. Roman and Dr. Burks believed that Claimant could possibly \nhave CRPS. Claimant Ex. 1, pp. 79-83. In fact, on June 12, 2023, over one year after Claimant’s \n\nPEACOCK H109939 \n \n16 \n \nbone scan, Dr. Roman noted that Claimant’s left foot pain has a “more indicative diagnosis of \nCRPS by Budapest criteria.” Claimant Ex. 1, pp. 140-141. I credit Dr. Roman’s June 12, 2023, \nmedical note. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). \nMoreover, it is true that Dr. Roman on August 29, 2023, also found that the CRPS of the \nleft lower extremity, type 1, had resolved, and that Claimant was at maximum medical recovery. \nClaimant Ex. 1, pp. 146-147. I also credit this finding. But the law is clear that a claimant may be \nentitled to additional treatment, even after the healing period has ended, if said treatment is geared \ntoward management of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  \nThese medical services can include those for the purpose of diagnosing the nature and extent of \nthe compensable injury; reducing or alleviating symptoms resulting from the compensable injury; \nmaintaining the level of healing achieved; or preventing further deterioration of the damage \nproduced by the compensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d \n593 (1995); Artex, supra.  \nClaimant continues  to physically  suffer because  of her  work-related  injury; and Dr. \nBaskin’s recommended tests would assist in diagnosing the nature and extent of the compensable \ninjury thus creating a clearer focus on how to medically treat the Claimant’s symptoms. Dr. \nBaskin’s report also noted that Claimant’s CRPS could go into remission and come back again. \nClaimant’s Ex. 1, p. 155. The Claimant has not received any such diagnosis for CRPS before her \nMarch 1, 2021, work-related injury. Thus, the CRPS diagnosis is related and connected to the \ncompensable work-related injury and is entitled to symptom management. These recommended \ntests will assist with treatment. Therefore, based on Dr. Roman’s June 12, 2023, note and Dr. \nBaskin’s recommendation, I do find that the Claimant has proven by the preponderance of the \n\nPEACOCK H109939 \n \n17 \n \nevidence that Dr. Baskin’s recommendations for a three-phase bone scan, an EMG, and nerve \nconduction study are reasonable and necessary medical treatment that is tied to the crush injury \nClaimant sustained on March 1, 2021. Such examination is clearly a “medical service,” falling \nwithin the purview of § 11-9-508(a).   \nB. Whether Claimant sustained an injury to her back as a compensable consequence \nof her stipulated compensable left foot injury. \n \n If  an  injury  is  compensable,  every  natural  consequence  of  that  injury  is  likewise \ncompensable.  Air Compressor Equip. Co. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000); Hubley \nv. Best West. Governor’s Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996).  The test is whether a \ncausal connection between the two (2) episodes exists.  Sword, supra; Jeter v. McGinty Mech., 62 \nArk. App. 53, 968 S.W.2d 645 (1998).  The existence of a causal connection is a question of fact \nfor the Commission.  Koster v. Custom Pak & Trissel, 2009 Ark. App. 780, 2009 Ark. App. LEXIS \n947.  It is generally a matter of inference, and possibilities may play a proper and important role \nin establishing that relationship.  Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d \n875 (1992).  A finding of causation need not be expressed in terms of a reasonable medical certainty \nwhere  supplemental  evidence  supports  the  causal  connection.   Koster,  supra; Heptinstall  v. \nAsplundh Tree Expert Co., 84 Ark. App. 215, 137 S.W.3d 421 (2003). \n Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Claimant has the burden of proving \nby a preponderance of the evidence that she sustained a compensable injury.  Claimant received \nan x-ray on July 20, 2020, at Conway Regional Health System. Resp. Ex. 1, p. 1. The x-ray \nrevealed disc space narrowing at L4-5 that was compatible with degenerative changes. Id. The \nClaimant’s first mention of back pain after her March 1, 2021, work-related incident was on \nNovember 21, 2022, almost nine months later, when she visited Dr. Billy McBay of Noydeen \n\nPEACOCK H109939 \n \n18 \n \nMedical Group. Claimant Ex. 1, pp. 85-88. Dr. McBay ordered an x-ray of Claimant’s lumbar \nspine that revealed “mild intervertebral disc height loss noted at L4-L5 and L5-S1.” Id. The x-ray \nreport also revealed a “Mild facet arthropathy most pronounced in the lower lumbar spine.” Id. Dr. \nMcBay diagnosed Claimant with acute right-sided low back pain with right-sided sciatica. Id. \nClaimant received an MRI on March 24, 2023, that revealed facet arthropathy and stenosis at L4-\n5, as well as “right-sided facet effusion and mild surrounding soft tissue edema and enhancement, \nindicating acute reactive or inflammatory changes.” Claimant Ex. 1, p. 120.  \nDr. Baskin wrote, in his second opinion dated July 22, 2024, that his examination of \nClaimant’s low back reflected no muscle spasms, and normal lumbar lordosis. Claimant’s Ex. 1, \npp. 152-156. Despite Dr. Baskin’s physical examination, the Claimant still complains of “some \nlow back pain and numbness down to about the level of the knee in the right thigh and pain in the \nleft  leg  below  the  knee  that  is  a  combination  of burning,  numbness,  pins  and  needles,  and \nstabbing.” Id. Ultimately, Dr. Baskin thinks the Claimant does have some low back pain that may \nhave resulted from her walking with altered gait mechanics due to “left foot problems, the walker \nboot, and the knee scooter.” Claimant testified that she has been in a boot or scooter more than \n75% of the time since the date of her injury, March 1, 2021, and after her third surgery performed \non February 13, 2023. Trans. p. 63, lines 18-25 through p. 64, lines 1-2. I credit Claimant’s \ntestimony. I find that due to her altered gait, she continues to suffer low back pain. After months \nof walking with an altered gait, Claimant visited with Dr. Guastella at Conway Regional Health \nSystem concerning back pain. Claimant’s Ex. 1, pp. 112-120. Dr. Guastella ordered an MRI for \nher lumbar spine. Id. The MRI showed “Moderate facet arthropathy at L4-L5 with a right-sided \nfacet effusion and mild surrounding soft tissue edema and enhancement, indicating acute reactive \ninflammatory changes. There are small ganglion cyst formation extending posteriorly from the \n\nPEACOCK H109939 \n \n19 \n \nfacet.” Id. (emphasis added) The Claimant continues to have pain in her left foot. Trans. p. 28, \nlines 15-24. Therefore, it stands to reason that Claimant has not returned to a normal gait when she \nwalks. Thus, the preponderance of the credible evidence, highlighted above, establishes that \nClaimant’s low back injury was a natural consequence of her stipulated compensable left foot \ninjury. Accordingly, she had met her burden of proving that her low back injury is a compensable \nconsequence.  \nC. Whether Claimant is entitled to reasonable and necessary medical treatment for \nher alleged lower back injury as a compensable consequence of the compensable \nleft foot injury. \n \n I find that Claimant has proven by a preponderance of the evidence that she is entitled to \nreasonable and necessary medical treatment for her back injury, which includes an EMG and nerve \nconduction studies for the left and right lower extremities that have been recommended by Dr. \nBaskins. For clarity, I have reviewed Dr. Baskin’s treatment recommendations in his second \nopinion for her low back that are in evidence, and I find that she has proven by a preponderance \nof the evidence that all of it reflected therein is reasonable and necessary. Moreover, all prior back \ntreatment subsequent to the compensable work-related injury was reasonable and necessary and \nshall be paid or reimbursed by the Respondents. \nD. Whether Claimant is entitled to Temporary Total Disability (TTD) benefits from \nAugust 29, 2023, to a date yet to be determined. \n \nWhen it comes to TTD as part of the instant claim, Claimant is seeking temporary total \ndisability benefits from August 29, 2023, to a date to be determined.  Respondents deny that she \nis entitled to these benefits. Nevertheless, the law is clear. \n Claimant’s compensable injury to her left foot is a scheduled one.  See Ark. Code Ann. § \n11-9-521(a)(11) (Repl. 2012).  An employee who suffers a compensable scheduled injury is \n\nPEACOCK H109939 \n \n20 \n \nentitled to temporary total disability compensation “during the healing period or until the employee \nreturns to work, whichever occurs first . . . .”  Id. § 11-9-521(a).  See Wheeler Const. Co. v. \nArmstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). \n Dr. Martin stated that Claimant had reached maximum medical improvement on July 20, \n2023. Claimant Ex. 1, p. 143. Dr. Roman saw Claimant on August 29, 2023, and concluded that \nshe had reached maximum medical improvement as of that date. Claimant Ex. 1, p. 146. I credit \nDr. Roman’s opinion and find that her healing period concerning her left foot had ended on August \n29, 2023. Claimant has thus failed to prove by the preponderance of the evidence that she is entitled \nto additional temporary total disability benefits. \n As to the back injury, the result of a compensable consequence of the left foot, the evidence \nabove is unclear whether the Claimant has not reached maximum medical improvement. The \nClaimant is entitled to medical treatment of her back so a determination can eventually be made \nconcerning maximum medical improvement. This issue is not ripe. Nevertheless, this injury is an \nunscheduled  one. See Ark.  Code Ann §11-9-521. An  employee  who  suffers  a  compensable \nunscheduled injury is entitled to temporary total disability compensation for that period within the \nhealing period in which she has suffered a total incapacity to earn wages. Ark. State Hwy. & Transp. \nDept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the \nunderlying condition causing the disability has become stable and nothing further in the way of \ntreatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d \n582 (1982). Also, a claimant must demonstrate that the disability lasted more than seven days. Id. \n§11-9-501(a)(1).  Claimant  must  likewise  prove  her  entitlement  to  these  benefits  by  the \npreponderance of the evidence. Ark. Code Ann. §11-9-705(a)(3). \n\nPEACOCK H109939 \n \n21 \n \nHowever, the credible evidence, assuming the Claimant is currently under the healing \nperiod, does not show that Claimant suffered a total incapacity to earn wages as a direct result of \nher back injury. This issue was not fully developed. Therefore, the Claimant failed to prove by the \npreponderance of the evidence that the Claimant is entitled to TTD benefits. \nE. Whether Claimant is entitled to Temporary Partial Disability (TPD) benefits from \nAugust 29, 2023, to a date yet to be determined. \n \nThe Claimant is also requesting temporary partial disability benefits. Temporary partial \ndisability is the period within the claimant’s healing period in which she suffers only a decrease in \nthe capacity to earn the wages she was receiving at the time of the injury.  Ark. State Hwy. & \nTransp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  Per Ark. Code Ann. § 11-9-520 \n(Repl. 2012): \n“there shall be paid to the employee sixty-six and two-thirds percent (66 2/3%) of \nthe difference between the employee’s average weekly wage prior to the accident \nand his or her wage earning capacity after the injury.” \n \nClaimant’s compensable left foot injury is a scheduled one.  Ark. Code Ann. § 11-9-\n521(a)(1) (Repl. 2012). This section reads that a claimant suffering from a scheduled injury “shall \nreceive . . . compensation for temporary total and temporary partial benefits during the healing \nperiod or until the employee returns to work, whichever occurs first . . . .”  (emphasis added) In \npassing Act 796 of 1993, the General Assembly made it plain that the provisions of the Arkansas \nWorkers’ Compensation Act are to be strictly construed by the Commission and the courts.  See \nid. § 11-9-704(c)(3); Duke v. Regis Hairstylists, 55 Ark. App. 327, 935 S.W.2d 600 (1996).  “Strict \nconstruction means narrow construction and requires that nothing be taken as intended that is not \nclearly expressed.”  Hapney v. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000). \n\nPEACOCK H109939 \n \n22 \n \n In discussing § 11-9-521(a), the Arkansas Court of Appeals in Wheeler v. Armstrong, 73 \nArk. App. 146, 41 S.W.3d 822 (2001) wrote that: \n“the plain meaning of the language employed indicates that an employee who has \nsuffered  a  scheduled  injury is  to  receive  temporary total  or temporary  partial \ndisability benefits during his healing period or until he returns to work regardless \nof whether he has demonstrated that he is actually incapacitated from earning \nwages.” \n \nId. (Emphasis added) The law is clear that a Claimant who has suffered a compensable scheduled \ninjury is no longer eligible to receive temporary partial disability benefits once he has reached his \nhealing period.  Id.   \n As stated previously, Dr. Martin stated that Claimant had reached maximum medical \nimprovement on July 20, 2023. Claimant Ex. 1, p. 143. Dr. Roman saw Claimant on August 29, \n2023, and concluded that she had reached maximum medical improvement on that date. Claimant \nEx. 1, p. 146. I credit Dr. Roman’s opinion and find that her healing period concerning her left foot \nhad ended on August 29, 2023. Claimant has thus failed to prove by the preponderance of the \nevidence that she is entitled to additional temporary partial disability benefits. \n Again, in reference to the back injury, and assuming the Claimant continues to be in the \nhealing period, the credible evidence does not show that Claimant suffered a decrease in the \ncapacity to earn the wages as a direct result of her back injury. This particular issue was not \ndeveloped in the evidentiary record. Thus, the Claimant has failed to prove by the preponderance \nof the evidence that she is entitled to TPD benefits. \nATTORNEY FEES \n Claimant has argued that her counsel should be entitled to a fee under Ark. Code Ann. § \n11-9-715 (Repl. 2012) for indemnity benefits awarded herein.  This provision reads in pertinent \npart: \n\nPEACOCK H109939 \n \n23 \n \n(B) Attorney’s  fees  shall  be  twenty-five  percent  (25%)  of  compensation  for \nindemnity benefits payable to the injured employee or dependents of a deceased \nemployee . . . In all other cases whenever the commission finds that a claim has \nbeen controverted, in whole or in part, the commission shall direct that fees for legal \nservices be paid to the attorney for the claimant as follows:  One-half (½) by the \nemployer or carrier in addition to compensation awarded; and one-half (½) by the \ninjured employee or dependents of a deceased employee out of compensation \npayable to them. \n \n (ii) The fees shall be allowed only on the amount of compensation for \nindemnity benefits controverted and awarded. \n \nId. § 11-9-715(a)(1)(B) & (a)(2)(B)(i)-(ii). \n The Claimant has not been awarded any indemnity benefits. Thus, Claimant’s counsel is \nnot entitled to a controverted attorney’s fee.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ___________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":46463,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109939 WENDY PEACOCK, EMPLOYEE CLAIMANT CONWAY REGIONAL MED. CENTER, SELF INS. EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED MAY 27, 2025 Hearing before Administrative Law Judge, Steven Porch, on April 1, 2025, in Little Rock,...","outcome":"granted","outcomeKeywords":["granted:8","denied:3"],"injuryKeywords":["back","knee","fracture","strain","sprain","ankle","lumbar"],"fetchedAt":"2026-05-19T22:41:19.953Z"},{"id":"alj-H305079-2025-05-25","awccNumber":"H305079","decisionDate":"2025-05-25","decisionYear":2025,"opinionType":"alj","claimantName":"William Bean","employerName":"Beshears Construction Inc","title":"BEAN VS. BESHEARS CONSTRUCTION INC. AWCC# H305079 May 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BEAN_WILLIAM_H305079_20250525.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BEAN_WILLIAM_H305079_20250525.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H305079 \n \nWILLIAM E. BEAN, EMPLOYEE   CLAIMANT \n \nBESHEARS CONSTRUCTION INC., EMPLOYER RESPONDENT \n \nC N A INSURANCE COMPANUY/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MAY 29, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents are represented by BENJAMIN D. DAVIS, Attorney, Little Rock Arkansas \n \nOPINION/ORDER \n \n On   August  9,  2023,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on July  27, \n2023.   Claimant was represented at the time by Jarid M. Kinder, who filed a Motion to Withdraw on \nJanuary 22, 2024, and was allowed to withdraw on February 22, 2024.   \nOn March 20, 2025, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time.  A hearing on respondents’ Motion to Dismiss was scheduled for May 19, \n2025.  Notice of the scheduled hearing was sent to the claimant by certified mail at the last known \naddress in the Commission’s file.  The notice was returned unclaimed on May 5, 2025.    Claimant did \nnot respond to respondents’ motion and did not appear in person at the hearing on May 19, 2025.  \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \n\nBean-H305079 \n \n2 \n \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2119,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305079 WILLIAM E. BEAN, EMPLOYEE CLAIMANT BESHEARS CONSTRUCTION INC., EMPLOYER RESPONDENT C N A INSURANCE COMPANUY/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MAY 29, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastia...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:41:26.320Z"},{"id":"alj-H402231-2025-05-23","awccNumber":"H402231","decisionDate":"2025-05-23","decisionYear":2025,"opinionType":"alj","claimantName":"Whitney Bray","employerName":"Sizzlin’ Skillet LLC","title":"BRAY VS. SIZZLIN’ SKILLET LLC AWCC# H402231 May 23, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Bray_Whitney_H402231_20250523.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bray_Whitney_H402231_20250523.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H402231 \n \n \nWHITNEY BRAY, EMPLOYEE CLAIMANT \n \nSIZZLIN’ SKILLET LLC, \n UNINSURED EMPLOYER RESPONDENT \n \n \nOPINION FILED MAY 23, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on April 25, 2025, in Forrest \nCity, St. Francis County, Arkansas. \n \nClaimant pro se. \n \nRespondent\n1\n represented\n2\n by   Ms. Ashley   Dawn   Walker   Love, West   Memphis, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On April  25,  2025,  the  above-captioned  claim  was heard  in Forrest  City, \nArkansas.  A prehearing conference took place on March 10, 2025.  Respondent failed \nto  appear  at  that  conference.   The Prehearing Order  entered  on that  date pursuant  to \nthe conference was admitted without objection as Commission Exhibit 1. \nStipulations \n The parties reached no stipulations. \n \n \n1\nDue  to  Respondent’s  repeated  failure  to  file  a  prehearing  questionnaire \nresponse,  and  to  its  failure  to  appear  on  the  prehearing  telephone  conference,  it  was \nbanned from offering any documents into evidence and from calling any witnesses.  See \nCommission Exhibit 2. \n \n \n2\nMs.  Love,  who  has  an  ownership  interest  in  Respondent,  is  not  an  attorney.  \nShe was permitted to represent it before the Commission under Ark. Code Ann. § 11-9-\n704(c)(1)(A)(i)  (Repl.  2012).   See  Bouland  v.  Erwin  Keith,  Inc.,  2013  Ark.  App.  460, \n2013 Ark. App. LEXIS 460. \n\nBRAY – H402231 \n \n2 \nIssues \n The  parties  discussed  the  issues  set  forth  in  Commission  Exhibit  1.   The \nfollowing were litigated: \n1. Whether  Claimant  was  an  employee  of  Respondent  employer  on  August \n3, 2023. \n2. Whether  Claimant  sustained  a  compensable  injury  to  her  lower  back  by \nspecific incident. \n3. Whether   Claimant is   entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged injury. \n4. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from \nJanuary 2, 2024, to a date yet to be determined. \n5. What was Claimant’s average weekly wage? \nAll other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant  contends  that  she  sustained  a  compensable  injury  to  her  lower \nback  by  specific  incident  on  August  3,  2023,  and  that  she  is  entitled  to \nmedical and indemnity benefits pursuant thereto. \n\nBRAY – H402231 \n \n3 \nRespondents: \n1. Respondent failed to offer any contentions. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the \ntestimony  of  the witness and  to  observe her demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. Claimant has proven by a preponderance of the evidence that she was an \nemployee of Respondent on August 3, 2023. \n3. Respondent   owes   the   $361.75   transcript   bill   of   my   reporter,   Dawn \nCrawford,  and  is  hereby  ordered  to  pay  it  as  outlined  in  the  letter  dated \nMay 21, 2025, by June 20, 2025. \n4. Claimant has proven  by  a  preponderance  of  the  evidence  that she \nsustained  a  compensable  injury to  her lower  back by  specific  incident on \nAugust 3, 2023. \n5. Claimant  has  proven  by  a  preponderance  of  the  evidence  that she  is \nentitled    to    reasonable    and    necessary medical treatment   of    her \ncompensable lower   back injury.      Moreover, she   has   proven   by   a \n\nBRAY – H402231 \n \n4 \npreponderance of the evidence that all of her lower back treatment that is \nin evidence was reasonable and necessary. \n6. Claimant  has not proven  by a  preponderance  of  the evidence  that she  is \nentitled to temporary total disability benefits for any period. \n7. Because of Finding/Conclusion No. 6, supra, the issue of the valuation of \nClaimant’s average weekly wage is moot and will not be addressed. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the Prehearing Order  discussed  above,  admitted  into  evidence  in \nthis case were the following:  Commission Exhibit 2, documents underlying the decision \nto  bar  Respondent  from  presenting  a  defense,  consisting  of  four  pages; Claimant’s \nExhibit 1, a compilation of her medical records, consisting of 43 pages; and Claimant’s \nExhibit 1, non-medical records, consisting of 14 pages. \nAdjudication \nA. Employment Relationship \n Introduction.   Claimant  has  alleged  that  on August  3,  2023,  she  sustained  a \ncompensable injury while employed by Respondent.  If she does not meet the definition \nof “employee” contained in Ark. Code Ann. § 11-9-102(9)(A) (Supp. 2024), her alleged \ninjury  is  not  one  governed  by  the  provisions  of  the  Arkansas  Workers'  Compensation \nAct. \n\nBRAY – H402231 \n \n5 \n Standards.  Whether a claimant was an independent contractor or an employee \nat  the  time  he  was  injured  is  a  question  of  fact.   Moore  v.  Long  Bell  Lumber  Co.,  228 \nArk. 345, 307 S.W.2d 533 (1957); Franklin v. Arkansas Kraft, Inc., 5 Ark. App. 264, 635 \nS.W.2d  286  (1982).  Section 11-9-102(9)(A) was  amended in  2019  by  the  General \nAssembly to  read  that a claimant’s status is to be determined by consideration of the \ntwenty-factor  test  required  by  the Empower Independent  Contractors  Act  of  2019,  Ark. \nCode Ann. §§ 11-1-201 et seq. (Supp. 2019).  Per § 11-9-204, that test comes from IRS \nRev. Rul. 87-41, 1987-1 C.B. 296: \n(1) A  person  for  whom  a  service  is  performed  has  the  right  to  require \ncompliance  with  instructions,  including  without  limitation  when, \nwhere, and how a worker is to work; \n \n(2) A worker is required to receive training, including without limitation \nthrough: \n(A) Working with an experienced employee; \n(B) Corresponding   with   the   person   for   whom   a   service   is \nperformed; \n(C) Attending meetings; or \n(D) Other training methods; \n \n(3) A  worker's  services  are  integrated  into  the  business  operation  of \nthe  person for  whom a  service  is  performed  and are  provided  in  a \nway  that  shows  the  worker's  services  are  subject  to  the  direction \nand control of the person for whom a service is performed; \n \n(4) A  worker's  services  are  required  to  be  performed  personally, \nindicating an interest in the methods used and the results; \n \n(5) A  person  for  whom  a  service  is  performed  hires,  supervises,  or \npays assistants; \n \n(6) A   continuing   relationship   exists   between   a   worker   performing \nservices and a person for whom a service is performed; \n \n(7) A  worker  performing  a  service  has  hours  set  by  the  person  for \nwhom a service is performed; \n\nBRAY – H402231 \n \n6 \n \n(8) A worker is required to devote substantially full time to the business \nof  the  person  for  whom  a  service  is  performed,  indicating  the \nperson  for  whom  a  service  is  performed  has  control  over  the \namount  of  time  the  worker  spends  working  and  by  implication \nrestricts the worker from obtaining other gainful work; \n \n(9) \n(A) The  work  is  performed  on  the  premises  of  the  person  for  whom  a \nservice is performed, or the person for whom a service is performed \nhas control over where the work takes place. \n \n(B) A  person  for  whom  a  service  is  performed  has  control  over  where \nthe work takes place if the person has the right to: \n(i) Compel the worker to travel a designated route; \n(ii) Compel  the  worker  to  canvass  a  territory  within  a  certain \ntime; or \n(iii) Require that the work be done at a specific place, especially \nif the work could be performed elsewhere; \n \n(10) A  worker  is  required  to  perform  services  in  the  order  or  sequence \nset by the person for whom a service is performed or the person for \nwhom  a  service  is  performed  retains  the  right  to  set  the  order  or \nsequence; \n \n(11) A worker is required to submit regular oral or written reports to the \nperson for whom a service is performed; \n \n(12) A  worker  is  paid  by  the  hour,  week,  or  month  except  when  he  or \nshe is paid by the hour, week, or month only as a convenient way \nof paying a lump sum agreed upon as the cost of a job; \n \n(13) A  person  for  whom  a  service  is  performed  pays  the  worker's \nbusiness or traveling expenses; \n \n(14) A person for whom a service is performed provides significant tools \nand materials to the worker performing services; \n \n(15) A worker invests in the facilities used in performing the services; \n \n(16) A worker realizes a profit or suffers a loss as a result of the services \nperformed  that  is  in  addition  to  the  profit  or  loss  ordinarily  realized \nby an employee; \n \n\nBRAY – H402231 \n \n7 \n(17) A  worker  performs  more  than  de  minimis  services  for  more  than \none (1) person or firm at the same time, unless the persons or firms \nare part of the same service arrangement; \n \n(18) A worker makes his or her services available to the general public \non a regular and consistent basis; \n \n(19) A  person  for  whom  a  service  is  performed  retains  the  right  to \ndischarge the worker; and \n \n(20) A worker has the right to terminate the relationship with the person \nfor  whom  a  service  is  performed  at  any  time  he  or  she  wishes \nwithout incurring liability. \n \nThe preface to that regulation reads: \n \nAs  an aid to  determining  whether an  individual  is an  employee  under  the \ncommon  law  rules,  twenty  factors  or  elements  have  been  identified  as \nindicating  whether  sufficient  control  is  present  to  establish  an  employer-\nemployee relationship.  The twenty factors have been developed based on \nan  examination  of  cases  and  rulings  considering  whether  an  individual  is \nan employee.  The degree of importance of each factor varies depending \non  the  occupation and  the  factual  context  in  which  the  services  are \nperformed.  The  twenty  factors  are  designed  only  as  guides for \ndetermining  whether  an  individual  is  an  employee;  special  scrutiny  is \nrequired in applying the twenty factors to assure that formalistic aspects of \nan arrangement designed to achieve a particular status do not obscure the \nsubstance of the arrangement (that is, whether the person or persons for \nwhom  the  services  are  performed exercise  sufficient  control over  the \nindividual for the individual to be classified as an employee). \n \n(Emphasis added)  The degree of control is still the key determination.  This goes along \nwith  what  the  court  wrote  in Franklin  v.  Arkansas  Kraft,  Inc.,  5  Ark.  App.  264,  635 \nS.W.2d 286 (1982): \nThere  are  numerous  factors  which  may  be  considered  in  determining \nwhether  an  injured person  is  an  employee  or  an  independent  contractor \nfor purposes of workers’ compensation coverage.  Obviously, the relative \nweight  to  be  given  the  various  factors  must  be  determined  by  the \nCommission.  Some of the factors which might be considered, depending \non the facts of a given case, are [the nine factors omitted]  These are not \nall the factors which may conceivably be considered in a given case, and it \n\nBRAY – H402231 \n \n8 \nmay not be necessary in some cases for the Commission to consider all of \nthese  factors.  Traditionally,  the  “right  to  control”  test  has  been \nsufficient  to  decide  most  of  the  cases,  although  many  variations  of \n“control” have probably been squeezed into that test. \n \n(Emphasis added) \n \n Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Claimant must prove by a \npreponderance  of  the  evidence  that  Respondent  was  her employer.    This  standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agric. Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The \nCommission must sort through conflicting evidence and determine the true facts.  Id.  In \nso doing, the Commission is not required to believe the testimony of the claimant or any \nother  witness,  but may  accept  and  translate  into  findings  of  fact  only  those portions of \nthe testimony that it deems worthy of belief.  Id. \n After  consideration of the evidence  in  light of  the  above authorities,  I  find  that a \npreponderance  of  the  evidence readily establishes  that  Claimant  was  an  employee  of \nRespondent on the alleged date of injury, August 3, 2023.  All of the elements of the 20-\nfactor  test that apply  to  the  situation  at hand—a server  working  at a  restaurant—show \nthat  Claimant  was  an  employee  there  as  opposed  to  an  independent  contractor.   The \nfirst factor—the degree of control—most certainly does.  And it shows that Respondent \n\nBRAY – H402231 \n \n9 \nhad the  right  to  require  compliance by  Claimant with its instructions,  including  without \nlimitation when, where, and how she was to work.  The second factor does not apply to \nthis  situation.    The  third  factor,  however,  certainly  applies  and  weighs  in  favor  of \nClaimant  being  an  employee  of  Respondent.    Her services as  a  waitress  were \nintegrated  into Respondent’s business  operation such  that  a  customer  would  easily \ndiscern  that  her services were  subject  to  the  direction  and  control  of Respondent.    As \nfor the fourth factor, Claimant’s services were performed personally.  The fifth factor \ndoes  not  apply  here.    With  regard  to  the  sixth  and  seventh,  however,  Claimant  had  a \ncontinuing   relationship   with   Respondent;   and   her   hours   there   were   set   by   the \nestablishment.    As  for  the  eighth  and  ninth  factors,  Claimant worked  20  to  25  hours  a \nwork for Respondent—substantially full-time—and the work had to be performed on the \npremises  of  Respondent.   With regard to the tenth, Claimant’s services as a waitress \nmade  her  part  of  a  food-serving  process  that  had  ordered  steps.    Therefore,  she  was \nrequired  to  perform her services  in  the  order  or  sequence  set  by Respondent.    The \neleventh  factor  does  not  apply  here.    As  for  the  twelfth, Respondent  paid  Claimant  by \nthe hour.  The thirteenth factor does not apply.  The fourteenth likewise weighs in favor \nof  employment  status  because  Respondent,  a  restaurant,  furnished  Claimant  with  the \ntools  with  which  she  did  her  job.    Concerning  the  fifteenth,  she  did  not  invest  in  the \nrestaurant.  With regard to the sixteenth, Claimant did realize a profit or suffer a loss as \na result of the business that was in addition to the profit or loss ordinarily realized by an \nemployee.  While  she  received  tips,  they  are  something  that  is  ordinarily  realized  by  a \nrestaurant employee.  The seventeenth factor, concerning whether Claimant performed \n\nBRAY – H402231 \n \n10 \nmore  than  de  minimis  services  for  more  than  one  person  or  firm  at  the  same  time, \nunless the persons or firms are part of the same service arrangement, likewise argues \nin  favor  of  her  employee  status.    All  of  her  waitressing  services  were  for  customers  of \nRespondent.   As for the eighteenth factor, Claimant’s services  were available  to  the \ngeneral public only to the extent that they were offered through the restaurant.  Finally, \nconcerning  the  last  two  factors,  the  restaurant  had  a  right  to  discharge  Claimant,  and \n(as shown infra), she had a right to resign without incurring liability. \n To repeat, each and every one of the applicable factors point to Claimant being \nan  employee  of  Respondent,  as  opposed  to  an  independent  contractor.    She  has \nproven by a preponderance of the evidence that she had this status on the alleged date \nof injury, August 3, 2023. \nB. Compensability \n Introduction.  Again, Claimant has argued that she suffered a compensable lower \nback injury in a specific incident on August 3, 2023, while working for Respondent. \n Standards.    In  order  to  prove  the  occurrence  of  an  injury  caused  by  a  specific \nincident identifiable by time and place of occurrence, a claimant must show that:  (1) an \ninjury  occurred  that  arose  out  of  and  in  the  course  of  his  employment;  (2)  the  injury \ncaused internal or external harm to the body that required medical services or resulted \nin  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence  supported  by \nobjective  findings,  which  are  those  findings  which  cannot  come  under  the  voluntary \ncontrol  of  the  patient;  and  (4)  the  injury  was  caused  by  a  specific  incident  and  is \nidentifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, 56 \n\nBRAY – H402231 \n \n11 \nArk.   App.  126,  938  S.W.2d   876   (1997).     If  a   claimant  fails  to   establish   by   a \npreponderance  of  the  evidence  any  of  the  above  elements,  compensation  must  be \ndenied.  Id. \n Evidence.   Claimant’s testimony was that she went to work for Respondent, a \nWest  Memphis restaurant,  in  January  2022  as  a waitress there.   She  described  her \nduties as a server: \nI  came  in  in  [sic]  the  morning,  and  I  set  up  the  tables,  made  sure  the \ntables  were  set up.   I prepared  the  drinks, the  teas  and  stuff  for  the  day, \nand I waited on the people, brought them their drinks, and cleaned off their \ntables and such, washed the dishes from their dishes. \n \nTurning  to  the  alleged August  3,  2023,  event,  which  Claimant  testified  took  place  at \napproximately 10:30 a.m., she related: \nI carry this big—big thing of tea and first, it’s a big pot, and I have to lift it \nup on this burner, and there’s a big urn of tea.  There’s two of them.  You \nhave to make unsweetened and sweetened, and I was carrying it, and my \nback  popped.    I  was  getting  the  other  one—a  couple  of  the  guys  to  help \nme carry it because it’s heavy to lift it up on top of the table, and I was told \nI wasn’t allowed to do that . . . [a]nd I informed [Ashley Dawn Walker Love] \nthat I was hurt.  I hurt my back.   She—I told her, and she told me that was \nmy problem, to figure it out. \n \nTestifying further, Claimant explained that the tea urn was “a big cylinder”—similar  to \nwhat is in use at other restaurants.  She was required, as part of her job duties, to pick it \nup off the floor in the back of the establishment, carry it to the front, and place it on the \ncounter so that it could be used to fill and refill beverage glasses.  Because the urn was \nso heavy and full, Claimant had to carry it between her legs while walking with it.  After \nher  back  popped, which  occurred  after  she  had  taken only a  few  steps, Claimant was \nunable to hoist the container to the counter, which was three to four feet high.  She had \n\nBRAY – H402231 \n \n12 \nto  enlist  the  aid  of  a  co-worker,  Adam  Soto, to  help  her do lift  it.  Claimant stated  that \nshe informed him that she had hurt her back.  After the alleged incident, she finished out \nher workday. \n It was the testimony of Claimant that she began to experience “severe pain” in \nher back after this incident.  She had difficulty straightening up.  The first treatment she \nunderwent  took  place  the  day  after  the  alleged  incident,  on  August  4,  2023.    On  that \noccasion, prior to going to work, she went to Marion Minor Medical Clinic.  The clinic set \nher  up  to  undergo  an  MRI  at  Methodist  Diagnostics.    Thereafter,  she  treated  at  NEA \nBaptist   Hospital   with   Danny   Ricker.  She   has   had   only   one   physical   therapy \nappointment.    The  reason  for  this  is  that  the  therapy  was  so  painful  that  it  had  to  be \ndiscontinued.  Claimant added that she recently underwent a second MRI.  But she has \nnot seen the report, and it is not in evidence.  Currently, she is treating for her back with \nDr.  Ted  Shields at  Pain  Treatment  Centers  of  America  (“PTCOA”).    However,  his \nrecords are not in evidence, either.  According to Claimant, she has declined to undergo \ninjections  at  PTCOA  because  she  is  afraid  to  do  so.    The  medication  that  she  is \nreceiving for her back consists of Percocet, which is a pain killer.  Later in her testimony, \nshe admitted that as of the date of her alleged back injury, she was already taking pain \nkillers.  Claimant hastened to add that while as of August 3, 2023, she was only taking \nthe medication on an as-needed basis, she now takes it four times a day.  Dr. Shields \nprescribed her a back brace. \n\nBRAY – H402231 \n \n13 \n The medical records  in  evidence  reflect  that Claimant  underwent  a  lumbar  MRI \non  October  30,  2023.    In  reviewing  this  MRI  against  one  that  Claimant  had  on \nNovember 8, 2019, Dr. Christopher Todd authored a report that reads in pertinent part: \nThe   lumbar   vertebral   bodies   remain   grossly   normal   in   height   and \nalignment.   Disc  space  height  is  well  maintained.    Disc  desiccation  is \ndemonstrated   at   L5-S1.      Marrow   signal   is   unremarkable.      Conus \nmedullaris is normal in appearance terminating at the T12-L1 disc space.  \nMild  facet  osteoarthropathy  is  demonstrated  involving  the  mid  and  lower \nlumbar spine. \n \nT12-L1:    No  significant  disk  bulging,  canal  stenosis,  lateral  recess  or \nneural foraminal narrowing. \n \nL1-L2:  No significant disk bulging, canal stenosis, lateral recess or neural \nforaminal narrowing. \n \nL2-L3:  No significant disk bulging, canal stenosis, lateral recess or neural \nforaminal narrowing. \n \nL3-L4:  No significant disk bulging, canal stenosis, lateral recess or neural \nforaminal narrowing. \n \nL4-L5:    Generalized  disc  bulging  is  demonstrated.    There  is  no  central \ncanal  stenosis  or  lateral  recess  narrowing.    Mild  to  moderate \nneural foraminal narrowing is demonstrated bilaterally. \n \nL5-S1:    Generalized  disc  bulging  is  demonstrated.    There  is  no  central \ncanal  stenosis  or  lateral  recess  narrowing.    Mild  to  moderate \nneural foraminal narrowing is demonstrated on the left. \n \nIMPRESSION:  Generalized disc bulging involving the lower lumbar spine \nresulting in mild to moderate neural foraminal narrowing bilaterally at L4-5 \nand  moderately  advanced  neural  foraminal  narrowing  [on]  the  left  at  L5-\nS1. \n \n On December 2, 2023, Claimant presented to Michael Charlton, N.P., at Marion \nMinor Medical Clinic “with a 2 day history of lumbar pain.”  The report of that visit \n\nBRAY – H402231 \n \n14 \ncontinues:  Denies known trauma.  Denies unusual activity.”  Charlton’s examination \nnotes read in pertinent part: \nBACK:  Right lumbar paraspinous musculature with trigger points.  Normal \ncurvature,  no  vertebral  tenderness,  motor  function,  sensation  to  light \ntouch, and DTR’s intact.  Negative cervical compression test.  Straight leg \nraise positive on right at 20 degrees, crossed legs pulling down right leg to \nknee.  Patient does describe occasional muscle spasms with lying flat and \nsitting.    Side  to  side  with  mild  pain  and  no  vertebral  tenderness.    No \nmention  of  bulging  disk  in  past,  and  no  disc  tenderness  in  lumbar  or \nsacrum today. \n \nClaimant returned to Charlton on March 15, 2024, with essentially the same findings as \nin December 2023. \n On April 3, 2024, Claimant went to the NEA Baptist Neurosurgery Clinic and saw \nDanny Ricker, N.P.  The report contains the following history:  “Whitney B. Bray is [a] 57 \ny.o. year old [sic] female that presents with lower back pain.  It was caused by lifting a \nheavy pot, she has had problems since August.”  Ricker also wrote: \nRadiographic studies: \nI  have  personally  reviewed  the  images  listed  below  and  these  are  my \nfindings  from   looking   at   these   images.     These  findings   have   been \ndiscussed with the patient. \n \nLumbar MRI revealed:  10/30/23 (outside) \nL2-3 bilateral facet disease \nL3-4 bilateral facet disease \nL4-5 diffuse bulge with mod bilateral foraminal stenosis \nL5-S1 diffuse bulge with mod left foraminal stenosis \n \nRicker referred Claimant to physical therapy. \n On  April  26,  2024,  Claimant  went  to  Fenter  Physical  Therapy  for  an  evaluation.  \nShe  told  the  therapist,  Joey  Britt, that  since  August  2203,  her  lower  back  had  been \nhurting and  had  been  progressively  worsening  to  the  point  that  lengthy  bouts  of \n\nBRAY – H402231 \n \n15 \nstanding or  walking had  become painful.  Britt wrote:  “Pt has already had a[n] MRI  of \nthe  lumbar  spine  and  Medical  records  indicate  degenerative  changes  including  disc \nbulges at multiple levels along with moderate to severe foraminal stenosis at the lower \nlumbar levels.” \n Claimant returned to  the  NEA  Baptist  Neurosurgery  Clinic  on  June  25,  2024.  \nThere, she presented with gluteal and sacroiliac pain.  She told treating personnel that \nthe  most  recent  episode  of  pain  started  more  than  one  month  earlier.    Ricker  wrote:  \n“This is a chronic problem.”  Claimant  told him that  she  had  been  on  Percocet  since \n2019, and that she had only tried one visit to physical therapy—on April 26, 2024—but \ndiscontinued it because it made her pain worse.  Ricker wrote: \nLumbar MRI revealed @ Methodist Diagnostic 5/12/2024 \n \nL1-2 min bulge with bilateral facet disease \nL2-3  min  bulge  with  min  bilateral  foraminal  stenosis  and  bilateral  facet \ndisease \nL4-5  bilateral  facet  disease  with  mod  left  worse  than  right  foraminal \nstenosis \nL5-S1 left bulge with mod bilateral foraminal stenosis \n \nRicker recommended that she discuss with her physician whether she should undergo \nan injection in her lower back versus her right hip. \n On December 21, 2024, Claimant underwent another MRI.  It reads in pertinent \npart: \nL4-L5:    Facet  and  endplate  degenerative  changes.    Some  asymmetric \nbulge  to  the  left.    Moderate  to  marked  left  and  moderate  right \nforaminal stenosis.  No canal stenosis. \nL5-S1:    Facet  and  endplate  degenerative  changes  along  with  trace  disc \nbulging.    Moderate  to  marked  bilateral  foraminal  stenosis.    No \ncanal stenosis. \n \n\nBRAY – H402231 \n \n16 \nIMPRESSION: \n1. Multilevel    foraminal    stenosis    due    to    facet    and    endplate \ndegenerative  changes  with  some  low-grade  bulging  at  L4/5  and \nL5/S1. \n2. No large disc herniation or canal stenosis. \n \nDiscussion.   In  this  case,  the  evidence reflects that  Claimant  has  objective \nfindings  of  an  injury  to  her lower  back.    These  findings  come from multiple MRIs that \nClaimant  has  undergone  since the  alleged  date  of  injury  that show  that  she  has disc \nbulging at  L4-5 and  L5-S1.  Further,  the  injury  caused  internal  or  external  harm  to  the \nbody that required medical services. \n As  for  whether  this lumbar condition  arose  out  of  and  in  the  course  of her \nemployment at Respondent, and was caused by a specific incident that is identifiable by \ntime  and  place  of  occurrence, the  evidence  shows  that on  August  3,  2023,  at \napproximately  10:30  a.m.,  Claimant  was  performing  her  job  as  a  server  when  she \nundertook one of her duties:  to carry the urn of tea from to the back of the restaurant to \nthe  front and  place  it on the  counter.   Because the  contain  was  full,  it  was heavy.   On \nthis  occasion,  Claimant  experienced a  pop  in  her back.    Thereafter,  she  began  having \nlower  back  pain.    The  next  day,  August  4,  2023,  she  sought  treatment  at  the  Marion \nMinor Medical Clinic and eventually underwent an MRI.  Again, the MRIs document that \ninjury  that  she  suffered  that  day.    I  find  that  those  findings  are  causally  related  to  the \nabove-described specific incident, which is identifiable by time and place of occurrence. \n A  causal  relationship  may  be  established  between  an  employment-related \nincident  and  a  subsequent  physical  injury  based  on  the  evidence  that  the  injury \nmanifested  itself  within  a  reasonable  period  of  time  following  the  incident,  so  that  the \n\nBRAY – H402231 \n \n17 \ninjury  is  logically  attributable  to  the  incident,  where  there  is  no  other  reasonable \nexplanation  for  the  injury. Hall  v.  Pittman  Construction  Co.,  234  Ark.  104,  357  S.W.2d \n263  (1962).    That  is  the  case here.   In  sum,  Claimant—whose  testimony  I  credit—has \nproven  by a preponderance of the  evidence that  she  suffered  a  compensable  injury  to \nher lower back by specific incident. \nB. Medical Treatment \n Introduction.   Claimant  has  alleged  that she  is  entitled  to  reasonable  and \nnecessary medical treatment in connection with her lower back injury. \n Standards.   Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \n\nBRAY – H402231 \n \n18 \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.  I find that Claimant has proven by a preponderance of the evidence \nthat she is entitled to reasonable and necessary medical treatment of her compensable \nlower  back injury.  Moreover,  I  have  reviewed  her treatment  records  that  are  in \nevidence, and I find that she has proven by a preponderance of the evidence that all of \nthe treatment of her compensable lower back injury that is in evidence was reasonable \nand necessary. \nC. Temporary Total Disability \n Introduction.    Claimant  has  also  alleged  that she  is  entitled  to  temporary  total \ndisability benefits as a result of her compensable injury. \n Standards.  The compensable injury to Claimant’s lower  back is  unscheduled.  \nSee Ark. Code Ann. § 11-9-521 (Repl. 2012).  An employee who suffers a compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \nwithin  the  healing  period  in  which she  has  suffered  a  total  incapacity  to  earn  wages.  \nArk.  State  Hwy.  &  Transp.  Dept.  v.  Breshears,  272  Ark.  244,  613  S.W.2d  392  (1981).  \nThe  healing  period  ends  when  the  underlying  condition  causing  the  disability  has \n\nBRAY – H402231 \n \n19 \nbecome  stable  and  nothing  further  in  the  way  of  treatment  will  improve  that  condition.  \nMad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant \nmust demonstrate that the disability lasted more than seven days.  Id. § 11-9-501(a)(1). \n Evidence.   Claimant’s testimony was that except for one  or  two days’ absence, \nshe  continued  to  work  for  Respondent  after  her  back  injury  until  the  first  week  of \nJanuary 2024.  Asked what happened in January, she responded: \nI called Ms. Ashley and told her I couldn't work anymore due to my—I had \nhealth  problems,  my  problems  in  my  back,  but  I  told  her  my  health \nproblems.  I had “health problems” is what I said. \n \nDuring  the  approximately  five-month  period  that  she  worked  after  injuring  her  back, \naccording  to  Claimant,  she  complained  about  her  back  every  day.    Soto  helped  her \ncarry the tea urn; she never again carried it by herself.  Despite her physical difficulties, \nshe persisted  in her  job  because  she  had  bills  to  pay.  Asked  if  she  worked anywhere \nelse after she resigned from Respondent, Claimant replied:  “No I wasn’t able to work.  I \ncan’t—I couldn’t stand up.  I couldn’t even—can’t even cook, stand in my kitchen and \ncook because my back, my lower back.”  In  addressing  the  circumstances  that  led  to \nher ultimately quitting her job, Claimant denied suffering another injury. \n The following exchange took place: \nQ. Has any doctor taken you off work in connection with your back? \n \nA. No, I wasn’t able to work so I quit, and I haven’t been able to go \nback since. \n \nQ. When you quit— \n \nA. To work. \n \n\nBRAY – H402231 \n \n20 \nQ. —you  testified  that  in  January  of  2024—were  you  on restrictions \nthen  when  you  quit,  or  did  you  just  quit  because  you  decided  on \nyour own you couldn’t do the job? \n \nA. I  decided  on  my  own  I  couldn’t  do  a  job.    I  had  to  find—I  just \nrecently  found  a  sit-down  job,  a  desk  job,  two  weeks  ago—well, \nthree weeks now.  No until then, I couldn’t find a sit-down  job,  a \ndesk job, because I can’t stand up for a period of time anymore. \n \n In  describing  her  work  and  educational  history,  Claimant  stated  that  she  has  a \nbachelor's  degree  in  social  work  from  the  University  of  Memphis.    She  worked  for \nthirteen years as a licensed alcohol and drug abuse counselor and as a case manager \nfor  two  different  treatment  facilities before  she  began  waitressing.    The  license  has \nlapsed,  and  she  has  learned  that  she  would  have  to  go  back  to  school  for  a  year  in \norder to get the license reinstated.  Food service and counseling are the only two areas \nin which she has worked. \n The following exchange occurred: \nQ. Do  you not believe that  there  was anything else  that  you  could  do \nphysically  that  you  would,  that  your  skills  as  a  licensed—and  I \nrealize  at  that  time  your  license  was  no  longer  active—as  a  social \nworker that may be transferable, that you could have done work in \nsome kind of related field after you left Sizzlin’ Skillet? \n \nA. No, because I have trouble just—I can’t even cook anymore.  I can’t \nstand at my sink long enough to cook because my lower back starts \nhurting me so bad.  All I can do is sit there and go, uh, uh, uh.  It’s \nterrible. \n \n Discussing  the  job  she  recently  obtained,  Claimant  stated  that  it  involves  taking \ncamping  reservations.    Asked  if  she  could  have  performed  that  job  at  the  time  she \nresigned from Respondent, Claimant answered:  “Yes, if I knew about the job I could \nhave . . . I looked for jobs.”  But she added that the job is part-time (30 hours a week) \n\nBRAY – H402231 \n \n21 \nand  pays  only  $12.00  per  hour,  while  her  server  position  paid  $11.00  per  hour  plus \ntips—and that she made $330.00 to $400.00 per week in tips while waitressing (during \na 20 to 25-hour workweek). \n On   cross-examination,   Claimant   admitted   that   after   she   resigned   from \nRespondent,  she  contacted  the  establishment  multiple  times  by  phone  and  even  in \nperson  in  an  effort  to  be  re-hired.  In explaining why she did this, Claimant stated:  “I \nneeded the financial support to pay my bills.” \n Discussion.   In Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002), \nthe Arkansas Court of Appeals wrote:  “If,  during  the  period  while  the  body  is  healing, \nthe employee is unable to perform remunerative labor with reasonable consistency and \nwithout  pain  and  discomfort,  his  temporary  disability  is  deemed  total.”   Here,  the \nevidence shows that Claimant continued to perform her job as a server for five months \nafter  she  suffered  her  compensable  lower  back  injury.    The  only  change  in  her  duties \nwas to receive help in lifting/carrying the aforementioned tea urn.  The two best judges \nof   her   ability   to   work   were   (1)  her  doctors   and   (2)  herself.      But  as   Claimant \nacknowledged in her testimony:  (1) no doctor has taken her off work; (2) she attempted \nto return to work at Respondents shortly after tendering her resignation; and (3) she has \nthe educational background and physical condition that would still enable her to work at \na  desk  job.    Consequently,  I am unable  to find  that Claimant has suffered  from  a  total \nincapacity to earn wages.  She has not proven by a preponderance of the evidence that \nshe is entitled to temporary total disability benefits for any period. \n\nBRAY – H402231 \n \n22 \nE. Average Weekly Wage \n Because  of  the  above  finding,  the  issue  of  the  valuation  of Claimant’s average \nweekly wage is moot and will not be addressed. \nCONCLUSION AND AWARD \n Respondent is hereby  directed  to  pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid \nin a lump sum without discount, and this award shall earn interest at the legal rate until \npaid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First  State \nBank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Respondent owes the $361.75 transcript bill of my reporter, Dawn Crawford, and \nis  hereby  ordered  to  pay  it  as  outlined  in  the  letter  dated  May  21,  2025,  by  June  20, \n2025. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":39231,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H402231 WHITNEY BRAY, EMPLOYEE CLAIMANT SIZZLIN’ SKILLET LLC, UNINSURED EMPLOYER RESPONDENT OPINION FILED MAY 23, 2025 Hearing before Administrative Law Judge O. Milton Fine II on April 25, 2025, in Forrest City, St. Francis County, Arkansas. Claimant pro se....","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back","lumbar","cervical","knee","hip"],"fetchedAt":"2026-05-19T22:41:15.591Z"},{"id":"alj-H406394-2025-05-23","awccNumber":"H406394","decisionDate":"2025-05-23","decisionYear":2025,"opinionType":"alj","claimantName":"Robert Crosley","employerName":"Autozone, Inc","title":"CROSLEY VS. AUTOZONE, INC. AWCC# H406394 May 23, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Crosley_Robert_H406394_20250523.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Crosley_Robert_H406394_20250523.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H406394 \n \n \nROBERT T. CROSLEY, EMPLOYEE CLAIMANT \n \nAUTOZONE, INC., \nEMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED MAY 23, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on May 22,  2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Rick  Behring,  Jr.,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on May 22, 2025, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   Admitted  into \nevidence    was Respondents’  Exhibit  1,  forms,  pleadings,  reports,  and \ncorrespondence  related  to  this  claim,  consisting  of 11  pages.  Also,  in  order  to \naddress  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1)  (Repl. \n2012)(Commission  must  “conduct  the  hearing  .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe record documents from the Commission’s file on the claim, consisting of two \n\nCROSLEY – H406394 \n \n2 \n \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \nArk.  App.  LEXIS 549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n The record shows the following procedural history: \n On October 1, 2024, through then-counsel Laura Beth York, Claimant filed \na  Form  AR-C, requesting  the  full  range  of initial and  additional benefits in \nconnection  with  injuries to his  right  hand,  left  shoulder,  lower  back,  neck “and \nother whole body” that he allegedly suffered at work on September 20, 2024.  No \nhearing  request  accompanied  this  filing.   On November 5,  2024,  Respondents \nfiled  a  Form  AR-2,  stating  that  they  were  accepting the  claim  as  compensable.  \nOn December  17,  2024,  York  moved  to  withdraw  from  her  representation  of \nClaimant.  In an order entered on January 15, 2025, the Full Commission granted \nthe motion under AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until March \n26, 2025.  On that date, Respondents filed the instant motion, asking for dismissal \nof the claim under Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) and AWCC \nR. 099.13 because Claimant had not been prosecuting it by, inter alia, seeking a \nhearing on  it.  The  file  was assigned  to me on  March  27,  2025.  My office wrote \nClaimant on March 28, 2025, asking for a response to the motion within 20 days.  \nThe  letter  was  sent  by  first  class and  certified mail  to the Conway,  Arkansas \naddress for him listed in the file and on his Form AR-C.  Someone with an illegible \n\nCROSLEY – H406394 \n \n3 \n \nsignature signed for the certified letter on March 31, 2025; and the first-class letter \nwas  not  returned.   Regardless,  no  response  from Claimant to  the  motion was \nforthcoming.    On April  21,  2025,  a  hearing  on  the Motion to Dismiss was \nscheduled for May 22, 2025, at 9:30 a.m. at the Commission in Little Rock.  The \nnotice was sent to Claimant via first-class and certified mail to the same address \nas  before.   As  before, someone  with  an  illegible  signature claimed the certified \nletter on April 23, 2025; and the first-class letter was, again, not returned. \n The hearing on the Motion to Dismiss proceeded as scheduled before me.  \nAgain,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents appeared \nthrough counsel and argued for dismissal under the foregoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n\nCROSLEY – H406394 \n \n4 \n \n4. The Motion  to Dismiss  is hereby  granted;  this claim for additional \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the May 22, 2025, hearing to argue against its \ndismissal)  since the filing  of  his Form  AR-C  on October 1,  2024.    Thus,  the \n\nCROSLEY – H406394 \n \n5 \n \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the application of Ark. Code Ann. § 11-9-\n702(a)(4) & (d). \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7337,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H406394 ROBERT T. CROSLEY, EMPLOYEE CLAIMANT AUTOZONE, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED MAY 23, 2025 Hearing before Administrative Law Judge O. Milton Fine II on May 22, 2025, in Little Rock, Pulaski ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["shoulder","back","neck"],"fetchedAt":"2026-05-19T22:41:17.740Z"},{"id":"full_commission-H201515-2025-05-22","awccNumber":"H201515","decisionDate":"2025-05-22","decisionYear":2025,"opinionType":"full_commission","claimantName":"Jackie Johnson","employerName":"Ark. Department Of Transportation","title":"JOHNSON VS. ARK. DEPARTMENT OF TRANSPORTATION AWCC# H201515 May 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Johnson_Jackie_H201515_20250522.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Johnson_Jackie_H201515_20250522.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H201515  \n \nJACKIE JOHNSON, \nEMPLOYEE \n \nCLAIMANT \nARK. DEPARTMENT OF TRANSPORTATION,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 22, 2025  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \n OPINION AND ORDER \n The claimant appeals an administrative law judge’s opinion filed \nNovember 13, 2024.  The administrative law judge entered the following \nfindings of fact and conclusions of law: \n1. The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing \nconference conducted on May 8, 2024, and contained in a pre-\nhearing order filed that same date are hereby accepted as fact. \n \n2. Claimant  has  failed  to  meet  his  burden  of  proving  by  a \npreponderance of the evidence that he is entitled to additional \nmedical treatment for his compensable injury.   \n \n\nJOHNSON - H201515  2\n  \n \n \nAfter reviewing the entire record de novo, it is our opinion that the \nadministrative law judge’s decision is supported by a preponderance of the \nevidence, correctly applies the law, and should be affirmed.  The evidence \ndemonstrates that the administrative law judge’s findings are correct and \nare therefore adopted by the Full Commission.   \nThe claimant contends on appeal that his constitutional rights have \nbeen violated.  The claimant did not raise this argument before the \nadministrative law judge, and the Full Commission may refuse to consider \nissues not raised below.  See Arkansas Workers’ Compensation \nCommission Rule 099.25(b).  In any event, the claimant has not proven that \nadjudication of his claim is violative of his due process rights.  See Long v. \nWal-Mart Stores, Inc., 98 Ark. App. 70, 250 S.W.3d 263 (2007).   \nThe Full Commission affirms and adopts the November 13, 2024 \ndecision of the administrative law judge, including all the findings of fact and \nconclusions of law, as the Full Commission’s opinion on appeal.   \nIT IS SO ORDERED.    \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents. \n\nJOHNSON - H201515  3\n  \n \n \n \nDISSENTING OPINION \n \nThe ALJ found that the Claimant failed to prove by a preponderance \nof the evidence that he is entitled to additional medical treatment for his \ncompensable injury.  I disagree, I would rule in favor of the Claimant \nreceiving additional medical treatment including physical therapy and pain \nmanagement as recommended by Dr. Allan Gocio as it is reasonably \nnecessary for Claimant’s work-related low-back injuries.  Therefore, I must \ndissent with the majority. \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a).  The claimant \nbears the burden of proving that he is entitled to additional medical treatment. \nDalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999).  What \nconstitutes reasonable and necessary medical treatment is a question of fact \nfor the Commission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, \n45 S.W.3d 396 (2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 \nS.W.3d 333 (2001).  \nThe Arkansas Court of Appeals has held a claimant may be entitled \nto additional medical treatment even after the healing period has ended, if \nsaid treatment is geared toward management of the injury.  See Patchell v. \n\nJOHNSON - H201515  4\n  \n \n \nWal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); Artex \nHydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  \nSuch services can include those for the purpose of diagnosing the nature \nand extent of the compensable injury; reducing or alleviating symptoms \nresulting from the compensable injury; maintaining the level of healing \nachieved; or preventing further deterioration of the damage produced by the \ncompensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 \nS.W.2d 593 (1995); Artex, supra. \n In the present case, the Claimant suffered a compensable injury to \nhis low back on February 10, 2022, when he was turning while holding a 5-\ngallon bucket of water.  The Claimant stated he was unable to move for a \nshort period of time after the incident and he began experiencing problems \nwith his left leg which continued through the date of the hearing.  This injury \nwas accepted as compensable by the Respondent, and Claimant received \nmedical treatment from Dr. Allan Gocio.  On April 20, 2022, Dr. Gocio stated \nthe following:  \nPatient symptoms and clinical findings reviewed, treatment options \ndiscussed.  Surgical treatment does not appear likely to benefit the \npatient.  [sic.]  Recommended  continued  symptomatic  management \nwith medication, physical therapy, also have recommended referral to \npain management for comprehensive care.  \n It appears from the evidence in the record that the Claimant received \nmedical treatment from a pain management facility following his work \n\nJOHNSON - H201515  5\n  \n \n \naccident, but that these appointments stopped after Claimant was involved \nin additional accidents.  These include an incident on October 9, 2023, \nwhere the Claimant fell off a roof and another incident on December 14, \n2023, at which time he was lifting a small air conditioner.  Regardless of \nthese two additional accidents, the Claimant remains entitled to receive \nreasonable and necessary medical care as the result of his February 10, \n2022, compensable lower back injury.  Based upon the evidence in the \nrecord it appears that the Respondent has denied these benefits.  \nDue to Claimant’s continuing symptoms related to his admittedly \ncompensable injury, I find the medical treatment originally recommended by \nDr. Allan Gocio to be reasonable and necessary medical treatment. \nTherefore, I would rule that the Claimant has proved by a preponderance of \nthe evidence that he is entitled to additional medical treatment and should \nbe allowed to return to Dr. Gocio for further treatment, evaluation and \nreferral.   \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":6650,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H201515 JACKIE JOHNSON, EMPLOYEE CLAIMANT ARK. DEPARTMENT OF TRANSPORTATION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:44.321Z"},{"id":"full_commission-H303124-2025-05-22","awccNumber":"H303124","decisionDate":"2025-05-22","decisionYear":2025,"opinionType":"full_commission","claimantName":"David Otwell","employerName":"Jerry Lynn Roberson","title":"OTWELL VS. JERRY LYNN ROBERSON AWCC# H303124 May 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Otwell_David_H303124_20250522.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Otwell_David_H303124_20250522.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H303124  \n \nDAVID OTWELL, \nEMPLOYEE \n \nCLAIMANT \nJERRY LYNN ROBERSON,  \nEMPLOYER \n \nRESPONDENT \nEMPLOYERS PREFERRED INSURANCE CO., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 22, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE JAMES A. ARNOLD, II, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Remanded. \n \n \n ORDER \n The claimant appeals an administrative law judge’s opinion filed \nNovember 1, 2024.  The administrative law judge found, among other \nthings, that the claimant failed to prove an employer-employee-carrier \nrelationship existed on the date of injury.  The Full Commission remands \nthe case to the administrative law judge for new findings of fact and \nconclusions of law.   \n The claimant contends that he sustained a compensable injury while \nemployed with the respondent Jerry Roberson.  The respondents contend, \namong other things, that the claimant was not an employee in accordance \n\nOTWELL - H303124  2\n  \n \n \nwith the Empower Independent Contractors Act of 2019, codified at Ark. \nCode Ann. §11-1-204(Supp. 2024).  The administrative law judge did not \ncite or adjudicate the Empower Independent Contractors Act in issuing his \nfindings of fact and conclusions of law.   \n The Full Commission therefore remands this case to the \nadministrative law judge, and we direct the administrative law judge to enter \nnew findings of fact and conclusions of law in accordance with Ark. Code \nAnn. §11-1-204(Supp. 2024).  We announce that henceforth all opinions \nemanating from administrative law judges and the Full Commission shall \nincorporate an adjudication of the Empower Independent Contractors Act of \n2019 when a claimant’s status as an employee or independent contractor is \nan agreed issue for litigation. \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2313,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303124 DAVID OTWELL, EMPLOYEE CLAIMANT JERRY LYNN ROBERSON, EMPLOYER RESPONDENT EMPLOYERS PREFERRED INSURANCE CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 22, 2025","outcome":"remanded","outcomeKeywords":["remanded:3","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.325Z"},{"id":"alj-H401525-2025-05-22","awccNumber":"H401525","decisionDate":"2025-05-22","decisionYear":2025,"opinionType":"alj","claimantName":"Ronald Guyll","employerName":"Heber Springs Wholesale Grocery Inc","title":"GUYLL VS. HEBER SPRINGS WHOLESALE GROCERY INC. AWCC# H401525 May 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GUYLL_RONALD_H401525_20250522.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GUYLL_RONALD_H401525_20250522.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H401525 \n \nRONALD L. GUYLL, EMPLOYEE   CLAIMANT \n \nHEBER SPRINGS WHOLESALE GROCERY INC., EMPLOYER RESPONDENT \n \nMEM MUTUAL INSURANCE COMPANY/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MAY 22, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas although \nnot appearing. \n \nRespondents are represented by GUY A. WADE, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On   February  29,  2024,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on \nDecember17, 2023.   Claimant was represented at the time by Matthew J. Ketcham, who remains his \nattorney of record.    \nOn March  4,  2025, claimant’s attorney filed  a  Motion  to  Dismiss,  alleging  that  it  had  been \nmore than six months since claimant filed his Form AR-C with the Commission, but he had not made \na request for a hearing in that time. Claimant’s attorney advised the Commission he had no objection \nto  the  Motion  to  Dismiss  and  would  not  attend  the  hearing.    A  hearing  on claimant’s Motion to \nDismiss  was  scheduled  for May  1,  2025.    Notice  of  the  scheduled  hearing  was  sent  to claimant  by \ncertified mail at the last known address in the Commission’s file.  The notice was returned unclaimed \non April 21, 2025.  Claimant did not respond to the Motion to Dismiss and did not appear in person \nat the hearing on May 1, 2025.  \nI find it has been more than six months since prior to this hearing and that no request for a \n\nGuyll-H401525 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2289,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401525 RONALD L. GUYLL, EMPLOYEE CLAIMANT HEBER SPRINGS WHOLESALE GROCERY INC., EMPLOYER RESPONDENT MEM MUTUAL INSURANCE COMPANY/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MAY 22, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Spring...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:41:09.220Z"},{"id":"alj-H305258-2025-05-22","awccNumber":"H305258","decisionDate":"2025-05-22","decisionYear":2025,"opinionType":"alj","claimantName":"Paul Hicks","employerName":"D B G Arkansas, LLC","title":"HICKS VS. D B G ARKANSAS, LLC AWCC# H305258 May 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Hicks_Paul_H305258_20250522.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Hicks_Paul_H305258_20250522.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305258 \n \nPAUL HICKS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nD B G ARKANSAS, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nRETAILERS CASUALTY INS., \nCARRIER                                                  RESPONDENT \n \nSUMMIT CONSULTING, INC., \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED MAY 22, 2024 \n \nHearing conducted on Tuesday, May  13,  2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant was represented by Mr. Daniel E. Wren, Attorney at Law, Little Rock, Arkansas.  \n \nThe Respondents were represented by Mr. Michael Stiles, Attorney at Law, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This matter comes before the Commission originally for a full hearing on May 13, 2025. \nHowever, the Claimant did not want to go forward with the prosecution of this claim. Respondents \nmade an oral Motion to renew their Motion to Dismiss due to a lack of prosecution. I granted that \nmotion in the presence of the Claimant and his legal counsel. Thus, I converted the full hearing \ninto a Motion to Dismiss hearing. There was no evidence admitted into the record.  Nevertheless, \nI have blue-backed Forms AR-1, AR-2, and Respondents Motion to Dismiss, as discussed infra. \nThe  record  reflects  on August  17,  2023,  a  Form  AR-1 was  filed  with  the  Commission \npurporting that Claimant was moving and flipping a dye press that was between 600-800 pounds \nwhen he injured his neck and back. Also on that same date, a Form AR-2 was filed by Respondents \n\nHICKS, AWCC No. H305258 \n \n2 \n \nneither accepting nor denying compensability. Eventually, the Respondents accepted the claim and \nhave paid benefits. The parties had a prehearing conference on March 12, 2025, wanting to litigate \nissues involving an entitlement to an impairment rating for his spine, permanent partial disability, \nwage loss, and a controverted attorney’s fee. A prehearing order was filed the same day setting a \nfull hearing date for May 13, 2025.  \nClaimant filed a Motion to Dismiss on May 12, 2025, at 4:29pm. I required both parties to \nappear on May 13, 2025, to discuss the motion on the full hearing date. Both parties appeared and \nthe  Claimant  did  not  desire  to  proceed.  I  did  not  agree  to  a  dismissal  of  the  full  hearing. Both \nattorneys had a discussion with each other and Respondent renewed their Motion to Dismiss filed \nJanuary 29, 2025. I granted Respondents’ motion, thereby changing the full hearing into a Motion \nto  Dismiss  hearing.  The  Respondents  made  their  oral  argument  in  favor  of  their  motion.  The \nClaimant offered no rebuttal other than agreement with the motion.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after a thorough consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the May 13, 2025, \nhearing. \n \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ oral Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \n \n\nHICKS, AWCC No. H305258 \n \n3 \n \nDISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith reasonable notice. Both parties were present at the hearing. Thus, I find by the preponderance \nof the evidence that reasonable notice was given to the Claimant.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant was present at the full hearing \nand did not want to go forward with the full hearing. The Claimant did not object to Respondents’ \nMotion to Dismiss, rather he agreed with the motion. Therefore, I do find by the preponderance of \nthe evidence that Claimant has failed to prosecute his claim. Thus, Respondents’ Motion to \nDismiss should be granted. \nThat leaves the question of whether the dismissal of the claim should be with or without \nprejudice.   Both  parties  agreed  to  a  dismissal  without  prejudice.  However,  the  Commission \npossesses the authority to dismiss claims with prejudice.  Loosey v. Osmose Wood Preserving Co., \n23  Ark.  App.  137,  744  S.W.2d  402  (1988).   Despite  that,  in  numerous  past  decisions,  this \nCommission  and  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.  See Professional Adjustment Bureau v. Strong, 275 Ark. 249, 629 S.W.2d 284 (1982).  \n\nHICKS, AWCC No. H305258 \n \n4 \n \nBased  on  the  above  authorities,  I  find  that  the  dismissal  of  this  claim  should  be  and  hereby  is \nentered without prejudice. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6250,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305258 PAUL HICKS, EMPLOYEE CLAIMANT D B G ARKANSAS, LLC, EMPLOYER RESPONDENT RETAILERS CASUALTY INS., CARRIER RESPONDENT SUMMIT CONSULTING, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MAY 22, 2024 Hearing conducted on Tuesday, May 13, 2025, bef...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:41:11.287Z"},{"id":"alj-H208333-2025-05-22","awccNumber":"H208333","decisionDate":"2025-05-22","decisionYear":2025,"opinionType":"alj","claimantName":"Joseph Taylor","employerName":"Dolgencorp., LLC","title":"TAYLOR VS. DOLGENCORP., LLC AWCC# H208333 May 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TAYLOR_JOSEPH_H208333_20250522.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TAYLOR_JOSEPH_H208333_20250522.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208333 \n \n \nJOSEPH TAYLOR,  \nEMPLOYEE CLAIMANT \n \nDOLGENCORP., LLC d/b/a \nDOLLAR GENERAL STORE, \nEMPLOYER RESPONDENT \n \nDOLGENCORP., LLC/ \nSEDGWICK CLAIMS MG’T SERVICES, INC., \nINSURANCE CARRIER/TPA  RESPONDENT \n \n \n \nOPINION FILED MAY 22, 2025 \n \nHearing  conducted  on February  26,  2025, before the  Arkansas  Workers’  Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant was represented by the Honorable Laura Beth York, Rainwater, Holt & Sexton, Little \nRock, Pulaski County, Arkansas.  \n \nThe respondents were represented by the Honorable David C. Jones, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas.  \n \n \nINTRODUCTION \n \n          In  the  prehearing  order  filed  October  22,  2024,  the  parties agreed  to  the following \nstipulations, which they modified and affirmed on the record at the hearing: \n \n 1. The Commission has jurisdiction over this claim. \n \n2. The employer/employee/carrier-TPA relationship existed with the claimant at all \nrelevant times including November 15, 2022, the date he was involved in a work-\nrelated assault in which he sustained admittedly compensable injuries to his face \nand upper back/thoracic spine. \n \n\nJoseph Taylor, AWCC N0. H208333 \n2 \n \n3. The claimant’s average weekly wage (AWW) was $202.09 which entitles him to \n            weekly compensation rates of $135 for temporary total disability (TTD) and \n            $135 for permanent partial disability (PPD) benefits.  \n \n4. The respondents controvert only  the  payment  of  any  additional  medical  and/or \nindemnity benefits other than those they have paid to date. \n \n5. The parties specifically reserve any and all other issues for future determination \nand/or litigation. \n \n(Commission Exhibit 1 at 2; Hearing Transcript at 5-7). At the hearing both parties offered and \nagreed to an additional stipulation as follows: Dr. Wayne Bruffett opined the claimant reached \nmaximum  medical  improvement  (MMI)  on February  22,  2023; assigned  him  a  permanent \nanatomical impairment rating of 19% to the body-as-a-whole (BAW); and released him to return \nto work with no additional physical limitations or restrictions. (Comms’n Ex. 1 at 2; T. 5-6). \nPursuant to the parties’ mutual agreement the issues litigated at the hearing were: \n \n1. Whether the claimant is permanently and totally disabled (PTD) and, if not, the \nextent of the claimant’s wage loss disability, if any. \n \n2. Whether  and  to  what  extent,  if  any,  the  claimant’s  attorney  is  entitled  to  a \ncontroverted fee on these facts. \n \n(Comms’n Ex. 1 at 2; T. 5-6).  \n \n           The claimant contends that on or about November 15, 2022, he sustained admittedly \ncompensable injuries to his face and upper back/thoracic spine as the result of a work-related \nassault. On February 22, 2022, Dr. Wayne Bruffett ultimately released the claimant with a 19% \nto the body-as-a-whole (BAW) permanent anatomical impairment rating, which the respondents \nhave accepted  and  paid. The  claimant  contends he  is PTD as  a  result  of his  admittedly \ncompensable  work-related  injuries or,  alternatively, he  is  entitled to  substantial  wage  loss \ndisability as a result of his compensable injuries. He further contends his attorney is entitled to \n\nJoseph Taylor, AWCC N0. H208333 \n3 \n \nthe maximum statutory attorney’s fee. The claimant reserves any and all other issues for future \ndetermination and/or litigation. (Comms’n Ex. 1 at 2-3; T. 5-6; 57-60, 62). \n           The respondents contend they have accepted the claimant’s face and upper back/thoracic \nspine injuries as compensable and have paid all appropriate benefits to date, including but not \nlimited to Dr. Bruffett’s 19% BAW impairment rating. The respondents contend the claimant is \nnot PTD, nor is he entitled to any wage loss disability related to his compensable injuries. The \nrespondents contend that any wage loss disability the claimant may have sustained is not the \n\"major cause\" of his overall disability, which the respondents contend is the result of preexisting \nconditions. The  respondents further  contend  the  claimant  has  applied  for  and  currently  is \nreceiving Social Security disability (SSD) benefits and, therefore, pursuant to Ark. Code Ann. \nSection 11-9-411 (Lexis Replacement 2025) they are entitled to a dollar-for-dollar credit/offest in \nthe  amount  of any and  all group  health, and/or disability benefits, as  well  as any and  all \nunemployment benefits paid to or on the claimant’s behalf. The respondents reserve the right to \namend and supplement their contentions upon the completion of necessary investigation and \ndiscovery; and they reserve all other issues for future determination and/or litigation. (Comms’n \nEx. 1 at 3; T. 5-6; 60-62). \n           The record consists of the hearing transcript and any and all exhibits contained therein and \nattached thereto, as well as the parties’ blue-backed post-hearing briefs. \nSTATEMENT OF THE CASE \n            The claimant, Mr. Joseph Taylor (the claimant), is 54 years old and has a high school \neducation. After he graduated from high school he worked as a cook at Oaklawn Race Track in Hot \nSprings, and at various fast food restaurants. Thereafter, he moved to Memphis, Tennessee working \nas a night stocker at Albertson’s, and in retail distribution. He then moved to Oklahoma where he \n\nJoseph Taylor, AWCC N0. H208333 \n4 \n \nworked as a cook, warehouse forklift operator with Georgia Pacific (GP), and as a stocker in stores. \nThe claimant obtained a certification at GP as a forklift operator, but that certification has since \nexpired. He also tried construction work but testified it “was not for me.” (T. 11; 10-11). The \nclaimant eventually moved back to Little Rock from Oklahoma to care for his grandmother until \nshe passed away. (T. 11-12). The claimant’s last job before he began working with the respondent-\nemployer, Dollar General, was with the City of Little Rock where he worked in waste management \nas a sanitation worker until sometime in 2013 or 2014. (T. 15-16). He testified the City of Little \nRock job “was the last job I dealt with...but then I got disabled.” (T. 55). \n           The claimant testified that while working for the City of Little Rock he fell off a sanitation \ntruck in rainy weather and hurt his back. (T. 15-16). Specifically concerning this fall from the Little \nRock sanitation truck the claimant testified that after he fell, “...I was layin’ flat on my back. I \ncouldn’t move, I couldn’t talk, I couldn’t do anything. So it’s like I was layin’ there and the rain \nwas just fallin’ down on me. I couldn’t even close my eyes, so it’s just like I was there for, like, 20 \nminutes.” (T. 15). The  claimant testified he sustained multiple injuries in this incident: “My \nshoulders, wrist, head, pretty much everything.” (T. 18). He testified he did not file a workers’ \ncompensation claim at that time because he did not know anything about it, that he thought it might \nbe his fault since he slipped and he did not want to lose his job, so he kept working until, “I couldn’t \nfake it anymore.” (T. 18; 15-18).  \n          At some point after this fall the claimant applied for and began drawing SSD benefits of not \n“over $1,000.00” per month. (T. 22; 48). The claimant testified he had drawn SSD benefits for \n“[p]robably like 13 years[.]” before he went to work for Dollar General in late December 2021. (T. \n14) (Bracketed material added). Upon further inquiry the claimant agreed he had been drawing \nSSD benefits “maybe” 11-12 years before he began working for Dollar General. (T. 56). The \n\nJoseph Taylor, AWCC N0. H208333 \n5 \n \nclaimant testified he was drawing $1,051 per month in SSD benefits at the time of the hearing. (T. \n22). The claimant testified he had been drawing SSD benefits since he was “40-somethin’.” (T. 14). \n         The claimant admitted he has a long history of both physical and mental issues for which he \nhas undergone medical treatment and some 19 surgeries. The claimant apparently attributes these \ninjuries to the fall that occurred when he was working with the City of Little Rock, and to his \nplaying football and other sports. (T. 17-21; 31-46; Respondents’ Exhibit 1 at 10-234). He also has \nasthma, so has not mowed a yard in some 18 years. (T. 19; 31).      \n         The claimant testified that Social Security [Social Security Administration rules] allows him \nto work up to 20 hours per week, and that he likes to be around people and to visit so he applied \nfor a job with Dollar General. (T. 21; 23-24; 46) (Bracketed material added). The claimant testified \nhe told Dollar General (DG) about his preexisting physical limitations and restrictions before they \nhired him, and he began work as a DG cashier on or about December 27, 2021. The claimant’s job \nduties at DG included checking customers out and operating the cash register. (T. 23-24). \n         On November 15, 2022, the date of the admittedly compensable incident, the cash register \nwas not working properly so the store was temporarily unable to accept cash payments. Eventually \na customer came into the store who only had cash and did not have a debit or credit card. At some \npoint after the claimant told the customer he was unable to accept cash payments he and the \ncustomer became involved in a verbal altercation. The claimant testified the customer started \ncursing, so he began taking the products the customer had intended to buy back intending to restock \nthem, at which time the verbal altercation evolved into a physical altercation. (T. 24-26). The \nclaimant testified he “got in that stance ‘cause I felt like he was fixin’ to do somethin’ to me, but \nwhen I took the stance, my hip popped, so therefore I lost my balance... .” (T. 25).  As the altercation \nescalated the customer picked-up the claimant and threw him to the floor, resulting primarily in \n\nJoseph Taylor, AWCC N0. H208333 \n6 \n \nleft-sided transverse process fractures of his L2 through L5-1 vertebrae. (T. 25-26; Claimant’s \nExhibit 1 at 1-31; RX1 at 1-9). \n           The claimant initially was treated at the CHI St. Vincent emergency room (ER). He was \ndischarged the same day as the work incident and allowed to return home. Thereafter, the claimant \ncame under the care of orthopedic surgeon Dr. Wayne Bruffett, then of OrthoArkansas in Little \nRock. (CX1 at 1-9). When Dr. Bruffett saw the claimant on January 23, 2023, he opined the \nclaimant could return to light duty sedentary work at that time; however, the claimant told Dr. \nBruffett, as he also testified at the hearing, that DG terminated him (because of his involvement in \nthe “fight situation” at work). (CX1 at 21-25; T. 28-29; 46-48).  \n          Dr.  Bruffett  treated  the  claimant  conservatively;  opined  he  reached  maximum  medical \nimprovement (MMI) as of February 22, 2023, and assigned him a combined 19% BAW permanent \nanatomical impairment rating for the four (4) left-sided transverse vertebrae fractures. (CX1 at 26-\n30). In his “Return to Work” note dated February 22, 2023, Dr. Bruffett released the claimant to \nreturn to work with no restrictions related to the 11/15/2022 work-related incident. (CX1 at 31; \nRX1 at 216). \n         The claimant testified he is still in a great deal of pain and is unable to do some of the things \nhe was able to do before the date of his compensable injury. Specifically, he testified he had a \nburning and vibrating sensation that made his body feel “like a human pitchfork.” (T. 27-30). \nMedical records reveal Dr. Bruffett was aware of the claimant’s complaints in this regard before he \nreleased him to return to work with no restrictions as of February 22, 2023. (CX1 at 21-25).    \n       The claimant testified he loved his job at DG and would still be working there if DG had not \nterminated  him.  (T.  46-47).  He  admitted  DG  terminated  his  employment because  of  his \ninvolvement in the “fight situation”, but said he was never given the specific reason DG let him go. \n\nJoseph Taylor, AWCC N0. H208333 \n7 \n \n(T. 47-48). The claimant testified he had made no efforts to seek other employment and had not \nworked anywhere or looked for a job since Dr. Bruffett released him in February 2023.  \n        The claimant further testified he had not sought any additional medical treatment for his \nNovember  15,  2022,  injury(ies) since Dr.  Bruffett released him to  return  to  work  without \nrestrictions on February 22, 2023. Moreover, the claimant acknowledged he had not sought any \nmedical treatment for his back, nor had he requested any further medical treatment related to his \nback for over two (2) years between Dr. Bruffett’s February 2023 no-restrictions release and the \nsubject hearing. (T. 33-34; 51).  \nDISCUSSION \nThe Burden of Proof \n           When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2025 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-9-\n704(c)(3) (2025 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2025 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. App. \n196, 737 S.W.2d 633 (Ark. App. 1987). \n\nJoseph Taylor, AWCC N0. H208333 \n8 \n \n           All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, 35 \nArk. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, 595 \nS.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility of \nthe witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \n           The Commission has the duty to weigh the medical evidence just as it does any other \nevidence, and its resolution of the medical evidence has the force and effect of a jury verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince to weigh the totality of the medical evidence and to determine what evidence is most \ncredible given the totality of the credible evidence of record. Minnesota Mining & Mfg’ing v. Baker, \n337 Ark. 94, 989 S.W.2d 151 (1999). \nWage Loss Disability \n \n          The Act specifically sets forth the requirements governing the Commission’s findings related \nto wage loss disability. For unscheduled injuries, Ark. Code Ann. § 11-9-522 (2025 Lexis Repl.) \ncontrols  an  injured  worker’s  entitlement  to  permanent  disability  benefits.  The  payment  of \ncompensation for permanent disability compensation is appropriate where the permanent effects of \na work-related injury incapacitate the worker from earning the wages he was receiving at the time \nof the injury. Id. \n\nJoseph Taylor, AWCC N0. H208333 \n9 \n \n         The Commission is charged with the duty of determining a claimant’s wage loss disability, if \nany, based upon consideration of the medical evidence and other matters affecting wage loss. Lee \nv.  Alcoa  Extrusion,  89 Ark. App.  228,  201  S.W.2d  449  (Ark. App.  2005).  When  making  a \ndetermination of the degree of disability an injured worker has sustained as the result of an \nunscheduled injury, the Commission must consider evidence demonstrating the degree to which \nthe worker’s physical anatomical impairment adversely affects his earning capacity, as well as other \nfactors  such  as  the  worker’s  age,  education,  work experience,  and  other matters  which  may \nreasonably be expected to affect his future earning ability. Such other matters may include, but are \nnot limited to: motivation, post-injury income, credibility, and demeanor. Ark. Methodist Hospital \nv. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (Ark. App. 1993); Glass v. Edens, 233 Ark. 786, 346 \nS.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App 313, 663 S.W.2d 946 (Ark. App. \n1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (Ark. App. 1990). \n          The Commission may use its own superior knowledge of industrial demands, limitations, and \nrequirements in conjunction with the relevant evidence to determine whether a claimant is entitled \nto wage loss disability. Henson v. General Electric, 99 Ark. App. 257, 257 S.W.3d 908 (Ark. App. \n2007). A claimant’s lack of interest in pursuing employment with his employer, and negative \nattitude in looking for work are impediments to the Commission’s ability to assess wage loss \ndisability. Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (Ark. App. 2005).  A \nclaimant is not entitled to wage loss disability benefits for a scheduled injury. Ark. Code Ann. § \n11-9-521 (2025 Lexis Repl.); Moser v. Ark. Lime Co., 40 Ark. App. 113, 846 S.W.2d 188 (Ark. \nApp. 1993). \n         Specifically with respect to PTD benefits, Ark. Code Ann. § 11-9-519(e) (2024 Lexis Repl.) \n \n states: \n \n\nJoseph Taylor, AWCC N0. H208333 \n10 \n \n (1) “Permanent total disability” means inability because  \n of compensable injury or occupational disease, to   \n earn any meaningful wages in the same or other   \n employment. \n (2) The burden of proof shall be on the employee to   \n prove inability to earn any meaningful wage in the   \n same or other employment. \nPTD “shall be determined in accordance with the facts.” Ark. Code Ann. § 11-5-519(c) (2025 Lexis \nRepl.). “In considering a claim for permanent disability, the commission and the courts shall not \nconsider  the  odd-lot  doctrine.” Ark. Code Ann. §  11-5-519(f)  (2025 Lexis  Repl.);  and see, \nAmerican Eagle Airlines v. Donald Berndt, 2012 Ark. App. App. 220 (Ark. App. 2012), citing \nPatterson v. Ark. Dep’t of Health, 70 Ark. App. 182, 15 S.W.3d 701 (Ark. App. 2000).   \n          As previously cited, supra, Ark. Code Ann. § 11-9-102(4)(F)(ii)(a) (2025 Lexis Repl.) \nrequires further that: \n(a) Permanent  benefits  shall  be  awarded  only  upon  a \n determination that the compensable injury was the major \n cause of the disability or impairment.   \n \n(b) If  any  compensable  injury  combines  with  a  preexisting \n disease or condition or the natural process of aging to cause \n or prolong  disability  or a  need  for treatment,  permanent \n benefits shall be payable for the resultant condition only if \n the compensable injury is the major cause of the permanent \n disability or need for treatment. \n \n(Emphasis added). The Act specifically defines the term “major cause” to mean more than fifty \npercent (50%) of the cause, which must be established by a preponderance of the evidence. Ark. \nCode. Ann. § 11-9-102(14)(A) and (B) (2025 Lexis Repl.).  \n          Suffice it to say the facts of this case are rather unique. Indeed, the clear preponderance of \nall the relevant evidence of record conclusively reveals – as the claimant freely admitted at the \nhearing – he was “disabled” as a result of the admittedly serious multiple injuries he sustained as \n\nJoseph Taylor, AWCC N0. H208333 \n11 \n \na result of falling from the sanitation truck in 2013 or 2014 when he was working for the City of \nLittle Rock. (T. 55; 15-18). In fact, after the City of Little Rock incident/multiple injuries the \nclaimant applied for and began receiving SSD benefits. Again, as he readily admitted at the \nhearing, this was some 11-12 years before he ever even went to work as a cashier at DG. While \nthe simple fact the claimant was drawing SSD benefits is not dispositive in determining whether \nhe is PTD or entitled to wage loss disability as a result of his compensable injury(ies), it is certainly \na factor to be considered along with the others.  \n           And in this case it is a factor that should and must be given great weight on the facts of this \ncase since – as the claimant readily admitted on more than one occasion at the hearing –  he was \n“disabled” as a result of his long-standing, well-documented preexisting, symptomatic, debilitating \nproblems long before he ever went to work at the obviously light duty cashier job at DG. Both the \nmedical evidence and the claimant’s own testimony conclusively demonstrate this fact. There \nsimply exists insufficient medical or other evidence in the record demonstrating the claimant is \nphysically incapable of any gainful employment whatsoever as a result of his subject November \n15, 2022, compensable injury(ies), or that he is entitled to any degree of wage loss disability on \nthe facts of this case. Consequently, I find the claimant has failed to meet his burden of proof in \ndemonstrating either that he is PTD, or that he is entitled to any percentage of wage loss disability \non these facts, for the following reasons. \n          First, the medical evidence as well as his own testimony reveal the claimant has failed to \nmeet his statutory burden of proof in demonstrating the subject November 15, 2022, injury(ies) is \n(are) the  “major  cause”  of  his  “disability.” Indeed,  quite  to  the  contrary,  the  overwhelming \npreponderance of the medical records corroborate the claimant’s own admissions at the hearing: he \nwas “disabled” well before the subject 11/15/2022 work incident.  \n\nJoseph Taylor, AWCC N0. H208333 \n12 \n \n          On both direct and cross-examination the claimant himself testified concerning the extent of \nhis  significant,  long-standing, preexisting,  symptomatic  physical  and  mental conditions  and \nproblems. He admitted he had 19 surgeries before the subject 11/15/2022 work incident, including \nbut  not  limited  to:  three  (3) shoulder  operations; ankle  fusions,  thumb  fusions,  bilateral  hip \nsurgeries, knee surgeries, shoulder surgeries, carpal tunnel syndrome surgeries, foot surgery, toe \nsurgery, and others as noted in the medical records. (T. 18-20; RX1 at 10-234). Well before the \nsubject work incident the claimant had been diagnosed with fibromyalgia and had chronic headache \nproblems, as well as psychological issues such as schizoaffective and bipolar disorder. (T. 31; 36; \n34-44; RX1 at 17; 24; 33; 86; 98; 103).  \n          The medical records reveal the claimant had shoulder problems as far back as 2013 and \neventually had left shoulder surgery on or about January 8, 2015. (RX1 at 17). He underwent right \nankle surgery with hardware placement on May 22, 2015. (RX1 at 24). On September 8, 2015, the \nclaimant began undergoing evaluation of and treatment for psychological problems, which included \nschizoaffective disorder and bipolar issues. The relevant records indicate the claimant was having \nproblems with chronic pain, depression, anxiety, and anger issues, and was “hearing voices.” (RX1 \nat  58). He  was  diagnosed  with  depression,  antisocial  personality  disorder,  anxiety  disorder, \nunspecified anxiety type, and cannabis abuse. (RX1 at 35; 29-38; 58). \n         The  claimant  underwent  right  knee  surgery  in  December  2015  (RX1  at  40),  and  his \npsychological issues remained an ongoing concern. Psychological counseling records reveal that \nat various times the claimant was “hearing voices” which were encouraging him to do negative \nthings, which are noted in the medical records themselves. (RX1 at 58). Some of the claimant’s \nother medical problems that existed some five (5) years before his 11/15/2022 work incident \nincluded a left hip decompression surgery in December 2016. (RX1 at 74). \n\nJoseph Taylor, AWCC N0. H208333 \n13 \n \n          The hearing record further demonstrates that although in his deposition the claimant denied \nhe had had any prior back problems, relevant medical records reveal he had problems with his back \nas far back as 2015, and that by 2017 he had pain radiating down his left leg. (RX1 at 86). A January \n5,  2017,  medical  report  states  the  claimant told  the  medical  provider  he had recently  fallen \nexperienced severe lower back pain that radiated down his left leg. (RX1 at 86-94). \n       The medical record reveals the claimant continued to undergo medical procedures for these \nlong-standing, preexisting, symptomatic problems, including a right rotator cuff surgical repair on \nJanuary 12, 2017. (RX1 at 88). Furthermore, he underwent left ankle surgery on May 5, 2017. (RX1 \nat 98). On January 11, 2018, the claimant underwent another right shoulder surgery. (RX1 at 103-\n108). In 2018 the claimant not only had the right shoulder surgery but also underwent right thumb \nsurgery in May 2018 and left thumb surgery in September of 2018. (RX1 at 109, 122). In addition, \nthe claimant was treated with Botox injections for headaches for many years, and was still receiving \nthese injections in June 2021 as he reported having up to 20 severe headaches per month. (RX1 at \n125, 153, 207). The claimant underwent another right ankle surgery on November 25, 2020, and \ncontinued to complain about bilateral shoulder problems, bilateral hip problems, and knee problems \nin November 2021, as reflected in the various exhibits. (RX1 at 141, et seq.). \n          Although  the  claimant  argues  the  11/15/2022  work  incident  aggravated  his  various \npreexisting problems thus rendering him PTD or entitling him to significant wage loss disability \nover  and  above  his  19%  BAW  impairment  rating,  the  medical  record  reveals  these various \nconditions were long-standing, preexisting, symptomatic, and debilitating both long before and \ncontinuing after the 11/15/2022 work incident, and Dr. Bruffett’s February 22, 2023, no-restrictions \nwork release. The medical record reveals the claimant continued to treat for his ongoing preexisting \nbilateral hip problems.  \n\nJoseph Taylor, AWCC N0. H208333 \n14 \n \n          At the hearing the claimant not only admitted he had undergone 19 surgical procedures on \nvarious parts of his body before the 11/15/2022 work incident, at the hearing he admitted he was \nexpecting to undergo bilateral shoulder replacements, bilateral hip replacements, and bilateral knee \nreplacements. (T. 43-44; RX1 at 226).  A May 1, 2023, medical record lists the claimant’s prior \nsurgeries and prior diagnoses stretching back almost a decade from August 2013 through May 1, \n2023. (RX1 at 226). All of the aforementioned evidence conclusively reveals the claimant has failed \nto meet his burden of proof in demonstrating that his 11/15/2022 compensable injury(ies) is the \n“major cause” of his current disability. In fact, all this evidence compels an objective, reasonable \nfact-finder to reach the opposite conclusion.  \n       Second, the claimant failed to meet his burden of proof in demonstrating he is incapable of \nearning the same wages he was earning at the time of his compensable injury. Here the claimant \nalready was drawing $1,000 per month in SSD benefits and was admittedly “disabled” at the time \nof his 11/15/2022 injury. He is now drawing $1,051 per month. At the hearing, although Dr. Bruffett \nreleased the claimant to return to work with no restrictions effective February 22, 2023, the claimant \nreadily admitted he had not looked for any other jobs since DG terminated his employment, \napparently as a result of the “fight situation” at work.  \n        Of course, there exist other employers which have cashier and similar jobs as the one the \nclaimant was performing at DG; and the claimant testified he would still be working at DG if his \nemployment had not been terminated. Consequently, it follows that if the claimant was able to \nphysically and otherwise capable of returning to his cashier job at DG, he is able to perform a \nsimilar job for another employer; however, to date he has failed and/or refused to even seek other \nemployment, or to make any job search whatsoever. This failure to seek other employment reveals \n\nJoseph Taylor, AWCC N0. H208333 \n15 \n \na lack of interest in seeking employment and, therefore, is an impediment to accurately assessing \nthe amount of the claimant’s wage loss disability, if any.  \n        Therefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction of this claim.  \n2. The  stipulations  contained  in  the  prehearing  order  filed  October  22,  2024,  as \nmodified and affirmed on the record at the subject hearing, hereby are accepted \nas facts.  \n \n3. The claimant has failed to meet his burden of proof in demonstrating that he is \nPTD as a result of his November 15, 2022, compensable injury(ies).  \n \n4. The claimant has failed to meet his burden of proof in demonstrating he is entitled \nto any percentage of wage loss disability in excess of his 19% BAW permanent \nanatomical impairment  rating as  a  result  of his subject  November  15,  2022, \ncompensable injury(ies). \n \n5. The claimant’s attorney is not entitled to a fee on these facts. \n \n           \n           Therefore, this claim is denied and dismissed without prejudice subject to the parties’ \n \n statutory appeal rights. If they have not already done so, the respondents shall pay the court \n \n reporter’s invoice within ten (10) days of their receipt of this opinion.  \n \n           IT IS SO ORDERED.   \n                                              \n \n       Mike Pickens \n       Administrative Law Judge \n \n \n \n \n \n \n \n \n \n\nJoseph Taylor, AWCC N0. H208333 \n16 \n \nMP/mp","textLength":30538,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208333 JOSEPH TAYLOR, EMPLOYEE CLAIMANT DOLGENCORP., LLC d/b/a DOLLAR GENERAL STORE, EMPLOYER RESPONDENT DOLGENCORP., LLC/ SEDGWICK CLAIMS MG’T SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 22, 2025 Hearing conducted on February 26, 20...","outcome":"denied","outcomeKeywords":["affirmed:1","modified:1","dismissed:1","granted:1","denied:5"],"injuryKeywords":["back","thoracic","wrist","hip","shoulder","ankle","knee","carpal tunnel"],"fetchedAt":"2026-05-19T22:41:13.482Z"},{"id":"alj-H405381-2025-05-20","awccNumber":"H405381","decisionDate":"2025-05-20","decisionYear":2025,"opinionType":"alj","claimantName":"Donald Baker","employerName":"Mckee Foods Corp","title":"BAKER VS. MCKEE FOODS CORP. AWCC# H405381 May 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BAKER_DONALD_H405381_20250520.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAKER_DONALD_H405381_20250520.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H405381 \n \nDONALD BAKER, Employee      CLAIMANT \n \nMCKEE FOODS CORP., Employer     RESPONDENT \n \nCCMSI, Carrier/TPA        RESPONDENT \n \n \n OPINION FILED MAY 20, 2025  \n \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in Springdale, \nWashington County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by R. SCOTT ZUERKER, Attorney at Law, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn August  26,  2024,  the  claimant  filed  an  AR-C  requesting  various  compensation \nbenefits in which he alleged an injury to his low back on or about July 22, 2024. The claim was \ndenied in its entirety. No further action was taken regarding this claim. \n On February  14,  2025,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim be dismissed for lack of prosecution. A hearing was scheduled for May 13, 2025. Notice of \nthat  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on March  24, \n2025. United States Postal Department records indicate that claimant received and signed for the \nnotice on March 29, 2025. Despite having received notice of the scheduled hearing, the claimant \nfailed to appear at the hearing and has failed to respond to the motion in any form or manner. \n\nBaker – H405381 \n \n-2- \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2369,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H405381 DONALD BAKER, Employee CLAIMANT MCKEE FOODS CORP., Employer RESPONDENT CCMSI, Carrier/TPA RESPONDENT OPINION FILED MAY 20, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant not repres...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1","denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:40:54.579Z"},{"id":"alj-H005827-2025-05-20","awccNumber":"H005827","decisionDate":"2025-05-20","decisionYear":2025,"opinionType":"alj","claimantName":"Earl Glass","employerName":"Ark. Dept. Of Correction","title":"GLASS VS. ARK. DEPT. OF CORRECTION AWCC# H005827 & H106715 May 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GLASS_EARL_H005827_H106715_20250520.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GLASS_EARL_H005827_H106715_20250520.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM Nos H005827 & H106715 \n \nEARL GLASS, EMPLOYEE         CLAIMANT \n \nvs. \n \nARK. DEPT. OF CORRECTION, EMPLOYER         RESPONDENT \n     \nPUBLIC EMPLOYEE CLAIMS DIVISION, TPA         RESPONDENT \n \n \n \nOPINION FILED 20 MAY 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission Administrative Law Judge \nJayO. Howe on 12 February 2025 in Little Rock, Arkansas. \n \nThe Caldwell Law Firm, Mr. Andy L. Caldwell, appeared for the claimant. \n \nThe Arkansas Insurance Department, Public Employee Claims Division, Mr. Charles H. \nMcLemore, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A Prehearing Order was filed on 15 October 2024 and admitted to the hearing record \nwithout objection as Commission’s Exhibit No 1. Consistent with that Order, the parties’ \nprehearing filings, and extensive discussions at the outset of the hearing, the parties agreed \nto the following: \nSTIPULATIONS \n \n 1. The Commission has jurisdiction over this claim. \n \n2.  The employer/employee/third party administrator relationship existed at all \nrelevant times, including on 5 August 2020, when the claimant sustained \naccepted compensable injuries to his right hip and low back associated with \nClaim H005827. The same existed on 2 August 2021, when the claimant \nsustained accepted compensable injuries to his right hip, low back, right \nknee, and bilateral shoulders associated with Claim H106715. \n  \n3. With respect to Claim No H005827, the claimant earned an average weekly \nwage of $717.68, which would entitle him to compensation rates of $478 and \n\nGLASS- H005827 & H106715 \n2 \n \n$359 per week for temporary total disability (TTD) benefits and permanent \npartial disability (PPD) benefits, respectively. \n \n4. According to the respondents, with respect to Claim No H106715, the \nclaimant earned an average weekly wage of $616.54, which would entitle him \nto compensation rates of $411 and $308 per week for TTD benefits and PPD \nbenefits, respectively. The claimant agrees that benefits were paid on this \nclaim consistent with these amounts; but he disagrees with the accuracy of \nthe average weekly wage calculation for this claim. \n \n5. The claimant reached maximum medical improvement (MMI) with regard to \nhis accepted compensable right hip injuries on 14 March 2023 and was \nassigned a fifteen percent (15%) impairment rating to the whole body \nassociated with those injuries. The respondents accepted and paid benefits on \nthat impairment rating. \n \nISSUES \n \n1. Whether the average weekly wage was miscalculated for the purpose of \nbenefits associated with the claimant’s second workplace incident and \ninjuries.   \n \n2. Whether the claimant is entitled to PPD benefits associated with his accepted \ncompensable low back injuries. \n \n3. Whether the claimant is entitled to additional medical treatment with Pain \nTreatment Centers of America for his accepted compensable low back, right \nknee, and bilateral shoulder injuries. \n \n4. Whether the claimant is entitled to a controverted attorney’s fee related to \nindemnity benefits already provided in relation to his compensable right hip \ninjuries. \n \n5. Whether the claimant’s alleged left hip injury is a compensable consequence \nof his compensable right hip injuries. \n \n6. Whether the claimant is entitled to permanent and total disability benefits \nor, in the alternative, wage-loss benefits associated with his compensable \ninjuries. He claims that this entitlement relates to either or both claims. \n \n7. Whether the claimant is entitled to an attorney’s fee on the additional \nindemnity benefits being sought. \n \n All other issues are reserved. \n \n \n \n \n \n\nGLASS- H005827 & H106715 \n3 \n \nCONTENTIONS \n \n The Prehearing Order incorporated the parties’ contentions by reference. The \nclaimant’s contentions were subsequently amended as follows: \n The claimant’s average weekly wage (AWW) will be \ndetermined by the contract of hire, wage records, and Arkansas \nlaw. Upon information and belief, the respondents calculated \nthe AWW and compensation rates resulting in an \nunderpayment of temporary total and permanent partial \ndisability benefits to the claimant. Respondents used the wages \npaid while the claimant was not back at full duty from his \ninjuries sustained in Claim No H005827 in calculating the \nAWW for Claim No H106715. \n \n The claimant sustained admittedly compensable \ninjuries to his right leg, right hip, and back on or about 5 \nAugust 2020 (H005827). The claimant also sustained \nadmittedly compensable injuries to his right hip, right knee, \nright shoulder, left shoulder, and low back on 2 August 2021 \n(H106715). The claimant treated with Dr. Vargas, who \ndiagnosed the claimant with a fractured hip and recommended \na total hip replacement. The respondents initially denied the \nrecommendation of Dr. Vargas and refused to authorize the \nsurgery consult as well as the physical therapy ordered. \nRespondents finally authorized the surgery after [counsel] \nrequested a hearing. The claimant contends the respondents \ncontroverted the additional benefits for the hip and that his \nattorney is entitled to an attorney’s fee on any indemnity paid \nafter the controversion, including the impairment rating and \nany additional indemnity owed. The claimant was placed at \nMMI for his right hip on or about 14 March 2023, and he was \nassigned a fifteen percent (15%) rating to the body as a whole. \nRespondents have paid the impairment rating; but the \nrespondents have not paid any attorney’s fees, and the rating \nwas paid at the incorrect PPD rate. \n \n The claimant’s right hip injury caused the claimant to \nfavor and rely upon his left hip. The claimant had to put all of \nhis weight on his left hip while he was recovering from the \nright hip injury. The claimant’s left hip was asymptomatic \nprior to his compensable right hip injuries. As a compensable \nconsequence of the claimant’s right hip injuries, the claimant’s \nleft hip has become symptomatic and treatment for the same is \nreasonable and necessary. The claimant is entitled to medical \ntreatment for the same. \n \n\nGLASS- H005827 & H106715 \n4 \n \n Dr. Vargas also treated the claimant’s back injury. The \nclaimant was asymptomatic prior to his compensable back \ninjuries. The claimant had documented muscle spasms and a \nleft foraminal disc protrusion at L4-5 that contacted and \ndisplaced the L4 nerve root. The claimant is entitled to \npermanent partial disability for the lumbar injury. The \nclaimant’s treatment with Pain Treatment Centers of America \nis reasonable and necessary medical treatment for his lumbar \nspine injury. \n \n The claimant has not been able to return to work due to \nhis compensable injuries, and he contends that he is \npermanently and totally disabled. Pleading in the alternative, \nin the event the Commission finds that the claimant is not \npermanently and totally disabled, the claimant contends that \nhe is entitled to wage-loss benefits. \n \n The claimant’s attorney is entitled to an attorney’s fee \non all controverted benefits, and all other issues are reserved. \n \n The respondents contend the following: \n ... that the claimant reported having an injury when he \nslipped at work on 5 August 2020 (H005827), which was \naccepted as compensable by the respondents. The claimant was \nprovided medical treatment for his low back and groin, treated \nconservatively, and paid TTD while in his healing period and \nunable to work. The claimant was released to full duty with a \nzero percent (0%) permanent impairment rating by Dr. \nStephen Paulus in his report of 1 October 2020. The claimant \nreturned to work for the respondent-employer. \n \n The respondent contends that he claimant reported \nhaving another injury when he slipped on 2 August 2021 \n(H106715), which was accepted as compensable by the \nrespondents. The claimant complained of injuries to his left \nmiddle finger, right knee, low back, and [bilateral] shoulders. \nThe claimant has been, and continues to be, provided medical \ntreatment by the respondent. \n \n The claimant’s medical treatment has included \nconservative treatment with Dr. Victor Vargas, including \ninjections and physical therapy, and a lumbar MRI. The \nrespondent also sent the claimant to Dr. James Tucker and \n[APRN] Christopher Vinson within the same clinic, who \nevaluated the claimant and recommended surgery for the \nclaimant’s hip fracture and referred him to Dr. Adam Smith \nwho performed the claimant’s right hip replacement surgery on \n17 November 2021. \n\nGLASS- H005827 & H106715 \n5 \n \n \n The claimant was released by Dr. Adam Smith at MMI \non 14 March 2023, with a fifteen percent (15%) permanent \nimpairment to the body as a whole for his [right] hip. \nRespondent has paid PPD benefits to the claimant for this \nrating. The claimant was provided with an injection of his left \nhip on 20 June 2023 and did not seek further treatment for his \nleft hip. Respondent has authorized a return visit to Dr. Adam \nSmith on 5 September 2024 to evaluate the claimant’s hips. \nRespondent is not responsible for any unauthorized medical \ntreatment the claimant has incurred. \n \n The claimant had been released by Dr. Victor Vargas at \nMMI on 28 April 2022, and on 12 July 2023, Dr. Vargas \nassigned the claimant a zero percent (0%) permanent \nimpairment rating for his lumbar spine, with no work \nrestrictions. \n \n The claimant was offered vocational rehabilitation \ncounseling, which he refused at his deposition, but he later \nagreed to participate. \n \n The respondent contends that the claimant cannot \nestablish that he is unable to work as a result of his \ncompensable injuries or that he is entitled to benefits under \nSection 11-9-505(a) [this contention was withdrawn at the \nhearing]... \n \n Respondent has paid benefits to the claimant for each \nclaim with compensation computed on his average weekly wage \nearned at the time of the accident(s). \n \n The respondent reserves the right to raise additional \ncontentions, or to modify those stated herein, pending the \ncompletion of discovery.  \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witnesses, observing their demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n2. The stipulations as set forth above are accepted. \n\nGLASS- H005827 & H106715 \n6 \n \n3. The claimant proved by a preponderance of the evidence that he is owed for \nunderpayment(s) related to a miscalculated average weekly wage associated \nwith his second accident (Claim H106715). \n \n4. The claimant failed to prove by a preponderance of the evidence that he is \nentitled to PPD benefits associated with his low back injuries. \n \n5. The claimant failed to prove by a preponderance of the evidence that he is \nentitled to benefits associated with the unauthorized medical treatment he \nsought through the Pain Treatment Centers of America. \n \n6. The claimant failed to prove by a preponderance of the evidence that the \nrespondents controverted the benefits he received in relation to his \ncompensable right hip injuries. \n \n7. The claimant proved by a preponderance of the evidence that his left hip \ninjury is a compensable consequence of his accepted compensable right hip \ninjuries. \n \n8. The claimant failed to prove by a preponderance of the evidence that he is \npermanently and totally disabled; but he proved by a preponderance of the \nevidence that he is entitled to a wage-loss benefit in the amount of twenty-\nfive percent (25%) over and above his fifteen percent (15%) whole-body \nimpairment rating for his accepted compensable right hip injuries. \n \n9. The claimant has proven by a preponderance of the evidence that he is \nentitled to an attorney’s fee on the indemnity benefits awarded in this \nopinion. \n \nSUMMARY OF THE EVIDENCE \n \n The record consists of the hearing transcript and two volumes of exhibits. The \nclaimant and his wife Isabella Amanda Glass testified at the hearing. Vocational \nconsultants Cecilia Ann Brunson and Keondra Hampton also testified. In addition to \nCommission’s Exhibit No 1, noted above, the following exhibits were entered into the record: \nClaimant’s Exhibit No 1 (four index pages and 440 pages of medical records); Claimant’s \nExhibit No 2 (two index pages and 111 pages of non-medical records); Claimant’s Exhibit No \n3 (the claimant’s amended prehearing information, which consists of five pages and \nrepresents a date of service of 4 February 2025); Respondents’ Exhibit No 1 (four index \npages and 172 pages of medical records); Respondents' Exhibit No 2 (two index pages and 50 \n\nGLASS- H005827 & H106715 \n7 \n \npages of non-medical records); Respondents' Exhibit No 3 (one index page and 9 pages of \nsupplemental records); and Respondents' Exhibit No 4 (the respondents’ prehearing \ninformation, which consists of four pages and represents a date of service of 29 August \n2024). \n Additionally, both parties filed post-hearing briefs on 17 March 2025. I have blue-\nbacked those briefs to this opinion, and copies of the same will be served along with this \nopinion, consistent with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. \nLEXIS 549. \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness, \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nThe claimant is sixty-six years of age with a bachelor’s degree in psychology and a \nmaster’s degree in clinical psychology. At the time relevant to these claims, he was working \nfor the respondents as a mental health counselor for inmates at multiple facilities within \nthe Arkansas Department of Correction. The claims at issue relate to two separate \n\nGLASS- H005827 & H106715 \n8 \n \nworkplace incidents—both slip-and-falls. The first occurred on 5 August 2020, when he was \nwalking the prison halls doing his treatment rounds. The second occurred nearly a year \nlater, on 2 August 2021, when he was setting up a rolling computer for virtual therapy \nvisits.\n1\n The claimant has not worked since the second date of injury. The respondents \naccepted both claims and began providing benefits. The claimant has requested additional \nbenefits, however, and those claims were the subjects of the hearing. \nA. THE AVERAGE WEEKLY WAGE RATE   \nThe claimant contends that the respondents undercalculated his average weekly \nwage for the purpose of benefits associated with Claim No H106715. He testified that he \nreceived a salary increase shortly before his second accident and argues that the \nrespondents’ calculations inappropriately included TTD benefits received in relation to \nClaim No H005827 instead of the claimant’s actual wage rate for those weeks in which \nbenefits were paid. \nArkansas Code Annotated § 11-9-705(a)(3) (Repl. 2012) provides that \n“[c]ompensation shall be computed on the average weekly wage earned by the employee \nunder the contract of hire in force at the time of the accident and in no case shall be \ncomputed on less than a full-time workweek in the employment.” \n The wage records submitted by the claimant for the end of July 2020 show the \nclaimant was earning a bi-weekly wage of $1,435.71. [Cl. Ex. 2 at 52.] The parties \nstipulated that the benefits paid on the claimant’s 5 August 2020 injuries were based on an \naverage weekly wage of $717.68, which is commensurate with the bi-weekly amount noted \nabove. \n \n1\n According to the medical records, it was discovered during treatment for the second fall \nthat a fracture in the claimant’s right hip was missed during the treatment associated with \nthe first fall. The right hip replacement that he claimant eventually underwent was, thus, \nassociated with Claim No H005827. \n\nGLASS- H005827 & H106715 \n9 \n \n The wage records submitted by the claimant for the end of July 2021 show that the \nclaimant was earning a bi-weekly wage of approximately $1,478.76. [Cl. Ex. No 2 at 58.] His \nwages for the months preceding July were consistent with those associated with his first \naccident. The parties stipulated, however, that the benefits paid on the claimant’s August \n2021 injuries were based on an average weekly wage of $616.54, a considerable decline from \nhis previous year’s wage rate that is not consistent with the increased salary reflected in \nhis last two checks for July of 2021. \n The evidence shows that the respondents miscalculated the claimant’s average \nweekly wage for the second claim by including TTD benefits paid in some periods into the \nwage calculation.  His full-time bi-weekly pay rate of $1,435.71 for 24 pay periods and \n$1,478.76 for two pay periods make the applicable average weekly wage $719.34. The \npreponderance of the evidence establishes that he is entitled to indemnity benefits \nassociated with his second accident (Claim No H106715) based on this amount, and that the \nrespondents are thus responsible for any underpayments on benefits that were not \nconsistent with that rate. \nB. THE CLAIMANT IS NOT ENTITLED TO PPD BENEFITS FOR HIS LOW \nBACK INJURIES. \n \nPermanent impairment is any permanent functional or anatomical loss remaining \nafter the healing period has been reached. Johnson v. General Dynamics, 46 Ark. App. 188, \n878 S.W.2d 411 (1994). Any determination of the existence or extent of physical \nimpairment shall be supported by objective and measurable physical findings. Ark. Code \nAnn. § 11-9-704(c)(1). Objective findings are those findings which cannot come under the \nvoluntary control of the patient. Id. § 11-9-102(16)(A)(i). Medical opinions \naddressing impairment must be stated within a reasonable degree of medical certainty. Id. \n§ 11-9-102(16)(B). Permanent benefits shall be awarded only upon a determination that the \n\nGLASS- H005827 & H106715 \n10 \n \ncompensable injury was the major cause of the disability or impairment. Id. § 11-9-\n102(f)(ii)(a). \"Major cause\" means more than fifty percent (50%) of the cause. Id. § 11-9-\n102(14). \nThe claimant experienced low back pain after his initial accident on 5 August 2020. \nAn X-ray report from 9 August 2020 revealed “degenerative changes in the lumbar spine,” \nbut “no evidence of acute fracture or dislocation.” [Cl. Ex. No 1 at 15.] Dr. Stephen Paulus \nsaw the claimant on 8 September 2020. He assessed “low back pain” and “degeneration of \nlumbar intervertebral disc” and returned the claimant to work at light duty. [Cl. Ex. No 1 at \n38.] On 1 October 2020, Dr. Paulus noted that he would release the claimant back to full \nduty at MMI with a zero percent (0%) impairment rating the following week. \nAfter the claimant’s second accident, he presented to MedExpress on 9 August 2021, \nwhere he was assessed with a lumbar sprain and muscle spasm in his back. [Cl. Ex. No 1 at \n57.] He was then seen at OrthoArkansas on 19 August 2021 by Nurse Practitioner \nChristopher Vinson. X-ray imaging revealed, “no change from the last X-rays taken of his \nlumbar spine taken on September 8, 2020. There are degenerative changes throughout the \nlumbar spine as well.” [Cl. Ex. No 1 at 75.] An MRI was ordered, and the claimant was \nreferred to Dr. Victor Vargas for further consultation. \nDr. Vargas noted on 31 August 2021 that the MRI showed “left foraminal disc \nprotrusion at L4-5 that appears contacting and displacing the exiting left L4 nerve root.” \n[Cl. Ex. No 1 at 86.] The imaging showed a stress reaction of the sacrum and some potential \nsigns related to a hematological disorder, possibly multiple myeloma or another metastatic \ndisease or blood packing disorder. [Cl. Ex. No 1 at 231.] But in his lengthy assessment and \nplanning note from that day, Dr. Vargas states that the claimant has “back pain with \ndegenerative changes” and “[d]efinitely no acute events in the lumbar spine.” [Cl. Ex. No 1 \nat 87.]  \n\nGLASS- H005827 & H106715 \n11 \n \nOn 28 April 2022, Dr. Vargas stated the following: \nI am considering with a reasonable degree of medical certainty that the \npatient has reached max medical improvement and can be released.  \nNo further treatment is necessary. \nPatient has had extensive work-up and treatment for his symptomology \nlower back pain.  \nThe patient [more likely than not]\n2\n has a source of his back pain originated at \nmultilevel degenerative disc disease in the lumbar spine and also has \nunderlying hematological process mostly that needs to be treated and \nfollowed by different specialty and in coordination with a primary care \nphysician. \nIn terms of the work related injury the patient can work with no restrictions. \n[sic] \n \n[Cl. Ex. No 1 at 243.] In an addendum to that note, he assigned the claimant a “0% \npermanent impairment in regards to lower back pain.”  \n The claimant eventually presented to Pain Treatment Centers of America (PTCA) \nfor his back pain, where his pain was suggested as being chronic and likely to last for the \nremainder of the claimant’s life. He argues that Dr. Vargas’ opinion should be disregarded \nand that the permanent nature of PTCA’s assessment favors the assignment of a \npermanent impairment rating. I disagree. \n Degenerative changes were noted in the X-ray imaging after the claimant’s initial \naccident on 5 August 2020. Subsequent X-ray imaging showed the same after the 2 August \n2021 accident. The Commission is authorized to accept or reject a medical opinion and is \nauthorized to determine its medical soundness and probative value. Poulan Weed Eater v. \nMarshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). Dr. Vargas worked through various \npotential causes for the claimant’s back pain and opined that it was most likely related to \ndegenerative disc disease and/or a hematological condition that was not related to the \n \n2\n The actual text appearing in the note reads, “The patient most likely than no has a source \nof his back pain originated at multilevel....” The note clearly states that the text “was \ngenerated with voice recognition software.” I have bracketed what I reasonably believe was \nmeant in that portion of the note where the transcription is not clear. \n\nGLASS- H005827 & H106715 \n12 \n \nclaimant’s work injuries. I credit his opinion that the claimant was entitled to a zero \npercent (0%) impairment rating associated with his compensable back injuries. The \nclaimant has, thus, failed to prove by a preponderance of the evidence that he is entitled to \nPPD benefits associated with his compensable low back injuries. \nC. THE RESPONDENTS ARE NOT LIABLE FOR THE CLAIMANT’S \nUNAUTHORIZED TREATMENT WITH THE PAIN TREATMENT \nCENTERS OF AMERICA. \n \n The claimant seeks benefits associated with the medical treatment he received from \nPTCA. That treatment began on 17 October 2022, when the claimant was seen for low back \npain. Upon subsequent presentations to PTCA, the claimant also made complaints of hip \npain and shoulder pain. He does not dispute, however, that the treatment he sought for the \nsame was unauthorized.  \nAn employer shall promptly provide for an injured employee such medical treatment \nas may be reasonably necessary in connection with the injury received by the employee. \nArk. Code Ann. § 11-9-508(a). The employer has the right to select the initial treating \nphysician. Id. § 11-9-514(a)(3)(A)(i). However, an employee may request a one-time change \nof physician. Id. § 11-9-514(a)(2)(A), (a)(3)(A)(ii), (iii). When a claimant seeks a change of \nphysician, he must petition the Commission for approval. Stevenson v. Tyson Foods, Inc., 70 \nArk. App. 265, 270, 19 S.W. 3d 36, 39 (2000). Treatment or services furnished or prescribed \nby any physician other than the one selected according to the change of physician rules, \nexcept emergency treatment, shall be at the claimant's expense. Id. § 11-9-514(b). \n The claimant testified that he believed that he was referred to PTCA by one of the \nphysicians at his own primary care clinic—and not from his authorized treating physician: \nQ:  Is that some place you decided to go to get some treatment? \nA:  I think I was referred there. \nQ:  By who? \nA:  I think it was UAMS Medical Clinic. \nQ:  Is that where your family doctor is? \n\nGLASS- H005827 & H106715 \n13 \n \nA:  Yes. \n. . .  \nQ:  And it was one of those doctors who referred you to the Pain Treatment \nCenters of America? \nA:  Yes, sir. Uh-huh. \nQ:  And that’s where you’ve been getting your pain medication? \nA: Yes, sir. That’s where the medication is coming from. \nQ:  Okay. So that’s not some place that Public Employee Claims sent you? \nYou went there to get your treatment? \nA:  Right. \n \n[TR at 95-97.] \n The record includes two Form AR-Ns, with the front and back side of each form \nevidencing the claimant’s dated signature. The Form AR-N associated with his 5 August \n2020 accident was signed on 13 August 2020 [Resp. Ex. No 2 at 3-4]; and the form \nassociated with his 2 August 2021 accident was signed on 26 August 2021 [Resp. Ex. No 2 at \n16-17]. After an employee has received a Form AR-N from his employer, subsequent \nunauthorized treatment is not the employer’s responsibility. Ark. Code Ann. § 11-9-\n514(c)(3) (Repl. 2012); Tempworks Mgmt. Servs. v. Jaynes, 2023 Ark. App. 147, 662 S.W.3d \n280.  \n Having been furnished with notice of the physician change rules via a Form AR-N \nfor each of his claims, the claimant was bound by those rules. He did not, however, comply \nwith those rules before seeking treatment from PTCA. Accordingly, the respondents are not \nliable for the unauthorized treatment provided to the claimant by PTCA. \nD. THE CLAIMANT HAS NOT PROVEN CONTROVERSION OF BENEFITS \nASSOCIATED WITH HIS RIGHT HIP INJURIES. \n \nThe claimant contended in his amended prehearing information that the \nrespondents were liable for controverting benefits on the claimant’s accepted right hip \ninjuries by way of some delay in authorizing the total right hip replacement that was \nperformed 17 November 2021. No evidence was introduced in furtherance of that argument. \nInstead, the claimant suggested in his post-hearing brief that the Commission take notice \n\nGLASS- H005827 & H106715 \n14 \n \nof the timeline of past filings on his claims. In the absence of any record evidence in support \nof the alleged controversion of benefits, that claim must fail. \nE. THE CLAIMANT’S LEFT HIP INJURY WAS A COMPENSABLE \nCONSEQUENCE OF HIS COMPENSABLE RIGHT HIP INJURIES. \n \nThe claimant asserts that his left hip became problematic as a result of his \ncompensable right hip injuries and/or his right hip replacement in November of 2021. At a \nfollow-up visit for his right hip on 14 March 2023, the claimant reported his right hip was \nmuch better, but his left hip was becoming a hinderance with regard to discontinuing the \nuse of a walker. [Cl. Ex. No 1 at 326.] Dr. Smith nonetheless placed him at MMI with no \nrestrictions and assigned a fifteen percent (15%) whole-body rating for his right hip that \nday. He authored a letter stating the same on 17 April 2023. [Cl. Ex. No 1 at 351.] \nOn 16 June 2023, the claimant was diagnosed with osteoporosis. [Cl. Ex. No 1 at \n389.] On 20 June 2023, Dr. Smith noted that the claimant was doing well with his right hip \nreplacement, but that he was having increasing trouble with left hip osteoarthritis. A left \nhip injection was provided that day. The claimant returned to Dr. Smith on 17 September \n2024, when he was diagnosed with a nondisplaced subtrochanteric left femur fracture. \n[Resp. Ex. No 1 at 168.] A cephalomedullary nail procedure was recommended to six the \nfracture. A nurse case manager for the respondents inquired of Dr. Smith in a form letter \nas to whether that injury was related to his right hip injuries. The questions and answers \nreturned were: \nQ:  In your opinion, within a reasonable degree of certainty, is the need for \nthe proposed IM hip nailing for the left non-displaced fracture greater than \n51% related to the work injury of 08//05/20? \nA:  No. \nQ:  Can you state, within a reasonable degree of medical certainty, the \nreported left hip symptoms and pathology are the direct result of the 08/05/20 \nwork injury or to pre-existing conditions? \nA:  No. \n \n[Resp. Ex. No 1 at 171.]  \n\nGLASS- H005827 & H106715 \n15 \n \nThese questions, however, are not reflective of the standard that is applied when \nconsidering whether an injury is a compensable consequence. The present question is not \nwhether the left hip injury was a “direct result” of the compensable injury itself—and \ncertainly not whether the former was a “major cause” of the latter. When a claimant suffers \na compensable injury, every natural consequence of that injury is also compensable. Hubley \nv. Best Western Governor’s Inn, 52, Ark. App. 226, 916 S.W.2d 143 (1996). The inquiry turns \non whether there is a causal connection between the two occurrences. Jeter v. B.R. McGinty \nMechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). In Booneville Hum. Dev. Ctr. v. Foster, \n2024 Ark. App. 618, our Court of Appeals recently explained: \nArkansas Code Annotated section 11-9-508(a)(1) (Supp. 2023) requires an \nemployer to provide an injured employee such medical services as may be \nreasonably necessary in connection with the injury received by the employee. \nWhen the primary injury is shown to have arisen out of and in the course of \nemployment, the employer is responsible for any natural consequence that \nflows from that injury. Nichols v. Omaha Sch. Dist., 2010 Ark. App. 194, at 5, \n374 S.W.3d 148, 151. However, for this rule to apply, the basic test is whether \nthere is a causal connection between the injury and the consequences of the \ninjury. Id., 374 S.W.3d at 151. The burden is on the employee to establish the \nnecessary causal connection. Id. at 5-6, 374 S.W.3d at 151. The determination \nof whether a causal connection exists between two episodes is a question of \nfact for the Commission. Ingram v. Tyson Mexican Original, 2015 Ark. App. \n519, at 6. \n \n The claimant testified credibly that he did not have a history of left hip pain before \nhis compensable right hip injuries: \nQ:  And so while you were getting treatment and recovering after your \nsurgery for the total hip, were you having to put more pressure on your left \nhip? \nA:  Yes. \nQ:  Before these two work injuries, were you having any problems with that \nleft hip? \nA:  No, sir. \nQ:  Had you been to a doctor for your left hip? \nA:  No, sir. \nQ:  Since these injuries and since having to put this added pressure on [your] \nleft hip, has it started to become problematic for you? \nA:  Very much so, sir. \n\nGLASS- H005827 & H106715 \n16 \n \nQ:  And it started to give you discomfort? \nA:  Discomfort, yes. \nQ:  And then, you started getting treatment for it? \nA:  Yes, sir. \n \n[TR at 109-110.] \n Dr. Smith managed the care of the claimant’s hip replacement and answered the \nquestions as they were written. I assign little evidentiary value to his responses to the letter \nin this circumstance. See Poulan, supra. Rather, I find that the claimant proved by a \npreponderance of the evidence that a causal connection between his compensable right hip \ninjuries and the eventual injury to his left hip.  \nThe claimant denied any history of left hip problems prior to his first work accident. \nThe record is clear that the claimant suffered from an untreated right hip fracture for \nnearly a year before it was found on imaging related to his 2 August 2021 fall. A report \nfrom the respondents’ nurse case manager in October of 2021 noted that the claimant did \nnot fully recover from his first accident and had walked with a limp since. [Cl. Ex. No 1 at \n124.] A note from a 20 October 2022 visit (after his right hip replacement) with Dr. Smith \nadvises the claimant that “it is going to take him significantly longer to get over his injury \nas he went 15 months prior to getting surgery. This is going to cause him significant \natrophy and trouble.” [Cl. Ex. No 1 at 284.] And the claimant began regularly reporting left \nlower extremity pain in physical therapy appointments at least as early as 9 August 2022. \n[Cl. Ex. No 1 at 259.] \nGiven the delay in treatment of the claimant’s compensable right hip injuries, the \nprolonged recovery course for that hip, and his years of reporting an altered gait, it \nnaturally follows that the claimant’s daily reliance on and overuse of his left hip resulted in \nan injury to that hip. Accordingly, I find that he has met his burden in proving that his left \nhip injury is a compensable consequence of his compensable right hip injuries. \n\nGLASS- H005827 & H106715 \n17 \n \nF. THE CLAIMANT IS NOT ENTITLED TO PERMANENT AND TOTAL \nDISABILITY BENEFITS; BUT HE IS ENTITLED TO A 25% WAGE-LOSS \nBENEFIT IN EXCESS OF HIS PERMANENT IMPAIRMENT RATING. \n \nIt is not disputed that the respondents have accepted the fifteen percent (15%) whole \nbody impairment rating associated with the claimant’s accepted compensable right hip \ninjuries. The claimant now seeks permanent and total disability benefits associated with \neither or both of his claims. Under Arkansas law, “permanent total disability” means an \n“inability, because of a compensable injury or occupational disease, to earn any meaningful \nwages in the same or other employment.” A.C.A. § 11-9-519(e)(1). The burden of proof is on \nthe employee to prove his inability to earn any meaningful wages in the same or other \nemployment. Id. § 11-9-519(e)(2). Permanent total disability must be determined in \naccordance with the facts. Id. § 11-9-519(c). \nWhen a claimant has been assigned an anatomical impairment rating to the body as \na whole, the Commission has the authority to increase the disability rating, and it can find \na claimant totally and permanently disabled based upon wage-loss factors. Milton v. K-Tops \nPlastic Mfg. Co., 2012 Ark. App. 175, 392 S.W.3d 364. Those factors include the claimant’s \nage, education, work experience, and other matters reasonably expected to affect his future \nearning capacity. A.C.A. § 11-9-522(b)(1). A claimant’s motivation to return to work may \nalso be considered. Milton, supra. \nThe law provides: \n(a)  Permanent benefits shall be awarded only upon a determination \nthat the compensable injury was the major cause of the disability or \nimpairment. \n \n(b)  If any compensable injury combines with a preexisting disease or \ncondition or the natural process of aging to cause or prolong disability \nor a need for treatment, permanent benefits shall be payable for the \nresultant condition only if the compensable injury is the major cause \nof the permanent disability or need for treatment. \n \n\nGLASS- H005827 & H106715 \n18 \n \nA.C.A. § 11-9-102(4)(F)(ii). A “major cause” is more than fifty percent (50%) of the cause and \nmust be established by a preponderance of the evidence. A.C.A. § 11-9-102(14). \n The claimant was a credible witness. But he has failed to prove by a preponderance \nof the evidence that he is permanently and totally disabled. He was released with a zero \npercent (0%) rating and no restrictions for his compensable back injuries. His release to \nreturn to work after treatment for his compensable right hip injuries was “as tolerated,” but \nwithout restrictions. The claimant has a bachelor’s and master’s degree in the psychology \nfield and extensive experience in providing mental health counseling services or \ncoordinating care within the healthcare system. He also has academic administrative \nexperience from his time running a charter school in Pine Bluff, Arkansas. \nBoth of the vocational experts who testified opined that the claimant could work in a \nsedentary job classification, and multiple job openings at competitive salaries were found \nduring the vocational rehabilitation job search process. They acknowledged that his \nphysical limitations could require accommodations from his employers; but they generally \nfelt that given his education, his experience, and his line of work, he would be able to \nparticipate in the workforce in a meaningful way. While he testified that he had not \nconsidered working remotely, the claimant added that he was familiar with virtual \nmeetings over Zoom. Indeed, his second accident occurred while he was setting up for \nfacilitating remote therapy sessions for his inmate clients. He would, however, not \nnecessarily be familiar with the clinical software programs and electronic health records \nused by potential employers. \nThe claimant testified that he intended to work until he was 70 years old, but he \nnow experiences some significant mobility issues. He stated that he attempted to explore \nsome job postings that were provided through vocational rehabilitation, but the internet \nlinks he received would not work when he tried to access the job postings.  \n\nGLASS- H005827 & H106715 \n19 \n \nThe claimant testified that he can drive, but that getting to and from the car takes a \nlot of time and effort. Respondents’ counsel complimented the claimant’s professional \nappearance at the hearing; but the claimant explained that he required assistance in \ngetting himself ready for the day. He testified that he benefits from a special chair at home \nthat is meant to provide ease of access and comfort to people with hip injuries. It is not \nclear if such a chair would be an available accommodation if he were to return to an in-\noffice setting. According to the testimony, some accommodations may be necessary \nregarding the claimant’s medication regimen and the drowsiness that can occur from some \nof his medication. \nI do not find the claimant to be especially motivated to return to work. But I believe \nthat he was sincere in stating that the transition from a lifetime of working to feeling \nunable to work has been unanticipated and difficult for him. It was unclear from the \ntestimony the extent that the limitations on communicating with him as a person \nrepresented by counsel hindered his ability to actively engage in the job seeking process. \nThere is no exact formula for determining a claimant’s wage loss. Hixon v. Baptist Health, \n2010 Ark. App. 413, 375 S.W.3d 690. To be entitled to any wage-loss disability in excess of \nan impairment rating, the claimant must prove by a preponderance of the evidence that he \nsustained a permanent physical impairment as the result of a compensable injury. Wal-\nMart Stores, Inc. v. Connell, 340 Ark. 373, 326 S.W.3d 415. Here, the claimant has a \nstipulated accepted permanent impairment based on his accepted compensable right hip \ninjuries. Based on the foregoing evidence, I find that the claimant proved by a \npreponderance of the evidence that he is entitled to a wage-loss benefit of twenty-five \npercent (25%) in excess of that impairment. In so doing, I find his stipulated compensable \nright hip injuries to be the major cause of his wage loss. \n \n\nGLASS- H005827 & H106715 \n20 \n \nG. THE CLAIMANT IS ENTITLED TO AN ATTORNEY’S FEE. \n The respondents have controverted the claimant’s entitlement to the indemnity \nbenefits awarded in this Opinion. They are, therefore, liable for the allowable fees \nassociated with this litigation. The claimant is entitled to an attorney’s fee under Ark. Code \nAnn. § 11-9-715 on the indemnity benefits awarded in and consistent with this Opinion. \nCONCLUSION AND AWARD \n The claimant has proven his entitlement to the indemnity benefits outlined above. \nThe respondents are directed to provide benefits accordingly. All accrued amounts shall be \npaid in a lump sum without discount, and this award shall earn interest at the legal rate \nuntil paid. Ark. Code Ann. 11-9-809. See Couch v. First State Bank of Newport, 49 Ark. App. \n102, 898 S.W.2d 57 (1995). \n The claimant’s attorney is entitled to a twenty-five percent (25%) fee on the benefits \nawarded herein. One-half (1/2) of the fee is to be paid by the claimant, and one-half (1/2) of \nthe fee is to be paid by the respondents, consistent with A.C.A. §11-9-715. See Death & \nPermanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2012). \n IT IS SO ORDERED. \n       ______________________________________ \n       JayO. Howe \n       Administrative Law Judge","textLength":40985,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM Nos H005827 & H106715 EARL GLASS, EMPLOYEE CLAIMANT vs. ARK. DEPT. OF CORRECTION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT OPINION FILED 20 MAY 2025 Heard before Arkansas Workers’ Compensation Commission Administrative Law Judge JayO....","outcome":"granted","outcomeKeywords":["granted:8"],"injuryKeywords":["hip","back","knee","shoulder","lumbar","fracture","sprain"],"fetchedAt":"2026-05-19T22:40:56.678Z"},{"id":"alj-H401871-2025-05-20","awccNumber":"H401871","decisionDate":"2025-05-20","decisionYear":2025,"opinionType":"alj","claimantName":"Walter Griffey","employerName":"Baptist Health Regional Hospital","title":"GRIFFEY VS. BAPTIST HEALTH REGIONAL HOSPITAL AWCC# H401871 May 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GRIFFEY_WALTER_H401871_20250520.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRIFFEY_WALTER_H401871_20250520.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H401871 \n \nWALTER GRIFFEY, Employee CLAIMANT \n \nBAPTIST HEALTH REGIONAL HOSPITAL, Employer RESPONDENT \n  \nCLAIMS ADMNISTRATIVE SERVICES, Carrier RESPONDENT \n \n OPINION/ORDER FILED MAY 20, 2025  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented  by JARID  M.  KINDER,  Attorney, Fayetteville,  Arkansas;  although  not \npresent at hearing. \n \nRespondent represented by JARROD S. PARRISH Attorney, Little Rock, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn April  15,  2024, Jarid  Kinder, claimant’s attorney, filed a  Form AR-C  requesting \nvarious  compensation  benefits in  which  he  alleged  injuries  to  his right  shoulder on  or  about \nJanuary  18,  2024.  Claimant  requested  and  was  granted  a  Change  of  Physician  on  October  15, \n2024. No further action was taken in this claim. \nOn March 11, 2205, the respondents filed a Motion to Dismiss requesting that this claim \nbe  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for May  8,  2025.  Notice  of  that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on April  1,  2025. \nUnited States Postal Department records indicate that claimant received and signed for the notice \non April 3, 2025. Despite having received notice of the scheduled hearing, the claimant failed to \nappear at the hearing. \n\nGriffey – H401871 \n2 \n \nMr. Kinder indicated by email dated March 31, 2025, that he would waive his appearance \nat  the  hearing  and  further  indicated  that he had  no  objection  to  the  Motion  to  Dismiss without \nprejudice.   \n After  my  review  of  respondent’s  Motion  to  Dismiss, Mr. Kinder’s response  thereto  that \nhe had  no  objection  to  the  motion  to  dismiss  without  prejudice,  and  the claimant’s failure  to \nappear  at  the  scheduled  hearing, as  well  as all  other  matters  properly  before  the  Commission,  I \nfind that respondent’s Motion to Dismiss this claim should be and hereby is granted pursuant to \nA.C.A. §11-9-702(a)(4).  This dismissal is without prejudice.     \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2405,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H401871 WALTER GRIFFEY, Employee CLAIMANT BAPTIST HEALTH REGIONAL HOSPITAL, Employer RESPONDENT CLAIMS ADMNISTRATIVE SERVICES, Carrier RESPONDENT OPINION/ORDER FILED MAY 20, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Fort Smith, Sebastia...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:40:58.736Z"},{"id":"alj-H302331-2025-05-20","awccNumber":"H302331","decisionDate":"2025-05-20","decisionYear":2025,"opinionType":"alj","claimantName":"Pagan Lopez","employerName":"Cargill, Inc","title":"LOPEZ PAGAN VS. CARGILL, INC. AWCC# H302331 May 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LOPEZ_PAGAN_VIMARIE_H302331_20250520.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOPEZ_PAGAN_VIMARIE_H302331_20250520.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H302331 \n \nVIMARIE LOPEZ PAGAN, Employee CLAIMANT \n \nCARGILL, INC., Employer RESPONDENT \n  \nSEDGWICK CMS, INC., Carrier RESPONDENT \n \n OPINION/ORDER FILED MAY 20, 2025  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS Attorney, Fayetteville, Arkansas. \n \nRespondent represented by R. SCOTT ZUERKER Attorney, Fort Smith, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn December 8, 2023, Evelyn Brooks, claimant’s attorney, filed a Form AR-C requesting \nvarious compensation benefits in which she alleged injuries to her left hip on or about September \n1,  2022. The  claim  was  denied  in  its  entirety. No hearing  was  requested  at  that  time  and  no \nfurther action was taken in this claim. \nOn January 31, 2025, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. A hearing was scheduled for May 13, 2025. Notice of that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on March  14,  2025. \nThat notice was returned by the United States Postal Department with the notation, “Return to \nSender.  Refused.  Unable to Forward.” \nMs. Brooks indicated that she has been trying to contact the claimant by telephone and by \nmail for several months with no success. \n\nLopez Pagan – H302331 \n2 \n \n After  my  review  of  respondent’s  Motion  to  Dismiss, Ms.  Brooks’ lack  of  ability  to \ncontact the claimant, and the claimant’s failure to appear at the scheduled hearing, as well as all \nother  matters  properly  before  the  Commission,  I  find  that  respondent’s  Motion  to  Dismiss  this \nclaim  should  be  and  hereby  is  granted  pursuant  to A.C.A.  §11-9-702(a)(4).   This  dismissal  is \nwithout prejudice.     \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2106,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H302331 VIMARIE LOPEZ PAGAN, Employee CLAIMANT CARGILL, INC., Employer RESPONDENT SEDGWICK CMS, INC., Carrier RESPONDENT OPINION/ORDER FILED MAY 20, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Springdale, Washington County, Arkansas. Clai...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1","denied:1"],"injuryKeywords":["hip"],"fetchedAt":"2026-05-19T22:41:00.856Z"},{"id":"alj-H307994-2025-05-20","awccNumber":"H307994","decisionDate":"2025-05-20","decisionYear":2025,"opinionType":"alj","claimantName":"Pagan Lopez","employerName":"Cargill, Inc","title":"LOPEZ PAGAN VS. CARGILL, INC. AWCC# H307994 May 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LOPEZ_PAGAN_VIMARIE_H307994_20250520.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOPEZ_PAGAN_VIMARIE_H307994_20250520.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H307994 \n \nVIMARIE LOPEZ PAGAN, Employee CLAIMANT \n \nCARGILL, INC., Employer RESPONDENT \n  \nSEDGWICK CMS, INC., Carrier RESPONDENT \n \n OPINION/ORDER FILED MAY 20, 2025  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS Attorney, Fayetteville, Arkansas. \n \nRespondent represented by R. SCOTT ZUERKER Attorney, Fort Smith, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn December 11,  2023, Evelyn  Brooks,  claimant’s  attorney,  filed a  Form AR-C \nrequesting various compensation benefits in which she developed carpal tunnel syndrome on or \nabout August 18, 2022. A Change of Physician order was entered on December 20, 2023, but no \nfurther action has been taken in this claim.  \nOn January 31, 2025, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. A hearing was scheduled for May 13, 2025. Notice of that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on March  14,  2025. \nThat notice was returned by the United States Postal Department with the notation, “Return to \nSender.  Refused.  Unable to Forward.” \nMs. Brooks indicated that she has been trying to contact the claimant by telephone and by \nmail for several months with no success. \n\nLopez Pagan – H307994 \n2 \n \n After  my  review  of  respondent’s  Motion  to  Dismiss, Ms.  Brooks’ lack  of  ability  to \ncontact the claimant, and the claimant’s failure to appear at the scheduled hearing, as well as all \nother  matters  properly  before  the  Commission,  I  find  that  respondent’s  Motion  to  Dismiss  this \nclaim  should  be  and  hereby  is  granted  pursuant  to A.C.A.  §11-9-702(a)(4).   This  dismissal  is \nwithout prejudice.     \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2089,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H307994 VIMARIE LOPEZ PAGAN, Employee CLAIMANT CARGILL, INC., Employer RESPONDENT SEDGWICK CMS, INC., Carrier RESPONDENT OPINION/ORDER FILED MAY 20, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Springdale, Washington County, Arkansas. Clai...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["carpal tunnel"],"fetchedAt":"2026-05-19T22:41:02.972Z"},{"id":"alj-H402247-2025-05-20","awccNumber":"H402247","decisionDate":"2025-05-20","decisionYear":2025,"opinionType":"alj","claimantName":"Pagan Lopez","employerName":"Cargill, Inc","title":"LOPEZ PAGAN VS. CARGILL, INC. AWCC# H402247 May 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LOPEZ_PAGAN_VIMARIE_H402247_20250520.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOPEZ_PAGAN_VIMARIE_H402247_20250520.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H402247 \n \nVIMARIE LOPEZ PAGAN, Employee CLAIMANT \n \nCARGILL, INC., Employer RESPONDENT \n  \nSEDGWICK CMS, INC., Carrier RESPONDENT \n \n OPINION/ORDER FILED MAY 20, 2025  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS Attorney, Fayetteville, Arkansas. \n \nRespondent represented by R. SCOTT ZUERKER Attorney, Fort Smith, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn April  2,  2024, Evelyn  Brooks, claimant’s attorney, filed a  Form AR-C  requesting \nvarious compensation benefits in which she alleged injuries to her neck on or about August 18, \n2022. The claim was denied in its entirety. No hearing was requested at that time and no further \naction was taken in this claim. \nOn January 31, 2025, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. A hearing was scheduled for May 13, 2025. Notice of that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on March  14,  2025. \nThat notice was returned by the United States Postal Department with the notation, “Return to \nSender.  Refused.  Unable to Forward.” \nMs. Brooks indicated that she has been trying to contact the claimant by telephone and by \nmail for several months with no success. \n\nLopez Pagan – H402247 \n2 \n \n After  my  review  of  respondent’s  Motion  to  Dismiss, Ms.  Brooks’ lack  of  ability  to \ncontact the claimant, and the claimant’s failure to appear at the scheduled hearing, as well as all \nother  matters  properly  before  the  Commission,  I  find  that  respondent’s  Motion  to  Dismiss  this \nclaim  should  be  and  hereby  is  granted  pursuant  to A.C.A.  §11-9-702(a)(4).   This  dismissal  is \nwithout prejudice.     \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2088,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H402247 VIMARIE LOPEZ PAGAN, Employee CLAIMANT CARGILL, INC., Employer RESPONDENT SEDGWICK CMS, INC., Carrier RESPONDENT OPINION/ORDER FILED MAY 20, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Springdale, Washington County, Arkansas. Clai...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1","denied:1"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T22:41:05.095Z"},{"id":"alj-H201741-2025-05-20","awccNumber":"H201741","decisionDate":"2025-05-20","decisionYear":2025,"opinionType":"alj","claimantName":"Melissa Mills","employerName":"Mhm Support Services","title":"MILLS VS. MHM SUPPORT SERVICES AWCC# H201741 May 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MILLS_MELISSA_H201741_20250520.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MILLS_MELISSA_H201741_20250520.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H201741 \n \nMELISSA MILLS, Employee      CLAIMANT \n \nMHM SUPPORT SERVICES, Employer     RESPONDENT \n \nMERCY HEALTH, Carrier/TPA       RESPONDENT \n \n \n OPINION FILED MAY 20, 2025  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn December 21, 2023, the claimant’s attorney, Michael Ellig, filed an AR-C requesting \nvarious compensation benefits in which she alleged she contracted COVID with resulting PTSD \non or about February 5, 2022. The claim was denied in its entirety.  \nOn September 27, 2024, the respondents filed a Motion to Dismiss requesting this claim \nbe dismissed for lack of prosecution. The claimant objected and on November 5, 2024, Mr. Ellig \nrequested a hearing.  \nOn January 23, 2025, Mr. Ellig withdrew the claimant’s request for a hearing and filed a \nMotion to Withdraw as Counsel, which this administrative law judge granted on March 6, 2025. \nNo further action was taken regarding this claim. \n\nMills – H201741 \n \n-2- \n On March 7, 2025, a letter was sent to the claimant regarding the Motion to Dismiss filed \nby the respondent on September 27, 2024, to which the claimant did not respond. A hearing was \nscheduled  for May  8,  2025.  Notice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail, \nreturn  receipt  requested  on April  1,  2025.  That  certified  mail  notice  was  returned  to  the \nCommission by the Post Office with a notation “Return to Sender. Not Deliverable as Addressed. \nUnable to Forward.” \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2721,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H201741 MELISSA MILLS, Employee CLAIMANT MHM SUPPORT SERVICES, Employer RESPONDENT MERCY HEALTH, Carrier/TPA RESPONDENT OPINION FILED MAY 20, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claimant ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:41:07.155Z"},{"id":"alj-H405519-2025-05-19","awccNumber":"H405519","decisionDate":"2025-05-19","decisionYear":2025,"opinionType":"alj","claimantName":"Judy Browley","employerName":"Jefferson County","title":"BROWLEY VS. JEFFERSON COUNTY AWCC# H405519 May 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BROWLEY_JUDY_H405519_20250519.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BROWLEY_JUDY_H405519_20250519.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                         CLAIM NO.: H405519 \n \nJUDY B. BROWLEY,   \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nJEFFERSON COUNTY,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                  \n \nAAC RISK MANAGEMENT SERVICES, \nCARRIER/TPA                                                                                                       RESPONDENT    \n        \n                                                OPINION FILED MAY 19, 2025    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Pine Bluff, Jefferson County, \nArkansas. \n  \nThe Claimant, pro se, did not participate in the hearing.\n1\n \n \nRespondents represented by the Honorable Melissa Wood, Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis  matter  comes  before  the  Commission pursuant  to  a motion  to dismiss filed by the \nRespondents.  On May 8, 2025, a hearing was conducted on the Respondents’ motion to dismiss \nin Pine Bluff, Arkansas.  Hence, presently the sole issue for determination is whether this claim \nshould  be  dismissed due to the Claimant’s failure  to timely prosecute it  under the  statutory \nprovisions  of Ark. Code Ann.  §11-9-702 (a)  (4) (Repl.  2012), and/or Arkansas  Workers’ \nCompensation Commission Rule 099.13. \n The record consists of the hearing transcript and documentary evidence from May 8, 2025.   \nIn that regard, Commission’s Exhibit 1 includes two (2) actual pages, which was marked \n \n1\n Although the Claimant appeared before we went on the record for the hearing, but she declined to stay \nfor the hearing.  Basically, the Claimant indicated that she has returned to work for the employer in this matter \nand does not wish to pursue her claim.    \n\nBrowley – H405519 \n \n \n2 \n \naccordingly, and Respondents’ Exhibit 1 consisting of ten (10) numbered pages was also thus \nmarked accordingly.   \n Reasonable notice of the dismissal hearing was had on all the parties in that manner  \nset by applicable law.   \nNo testimony was taken at the dismissal hearing.  \n                        Background \nThe record reflects the following procedural history: \nThe Claimant filed a Form AR-C, with the Commission on August 26, 2024, alleging that \nshe sustained an accidental injury, on May 8, 2023, while working for the respondent-employer.  \nHowever, the date of injury listed in the Commission’s file on May 5.  This is the exact same date \nof injury listed by the respondent-employer on the Form AR-2.  Nevertheless, per the Form AR-\nC, the Claimant allegedly sustained an injury in the course and scope of her employment, while \nloading boxes onto a dolly, when she accidentally incurred a fall.  The Claimant alleged that she \nsustained injuries to her left hand, which included her middle and ring fingers.  Consequently, the \nClaimant requested only initial benefits, in the form of medical expenses.    \nOn August 28, 2024, the Respondents filed a Form AR-2 with the Commission accepting \nthis  as  a “medical  only  claim.”  Specifically, the claims adjuster wrote, “Medical Only, AR-C \nfiled.”    \nSince the filing of the Form AR-C, the Claimant has failed to prosecute or otherwise pursue \nher claim for initial workers’ compensation benefits.  Specifically, more than six (6) months passed \nafter the filing of her claim for initial compensation.  However, the Claimant has made no bona \nfide request for a hearing with respect to her claim.   \n\nBrowley – H405519 \n \n \n3 \n \nAs  a  result,  on March  3,  2025,  the  Respondents  filed  with  the Commission a  Motion to \nDismiss for Failure to Prosecute, along with a certificate of service to the Claimant.  Per this proof \nof service, the Respondents served a copy of the foregoing pleading on the Claimant by depositing \na copy of it in the United States Mail to same address listed with the Commission.   \nSubsequently, on March 6, 2025, the Commission wrote a letter notifying the Claimant of \nthe Respondents’ motion to dismiss her claim  and asked that  she  file a written response  to  the \nmotion within twenty (20) days.  Said letter was sent to the Claimant by both first-class mail and \ncertified mail to the address listed by the Claimant with the Commission.  Said letter was sent via \nthe United States Postal Service.  \nPer tracking information received from the Postal Service, the letter notice sent by certified \nmail to the Claimant was delivered to her when she picked it up at a Postal Facility on March 21, \n2025.    The  signature  of  the  recipient for  delivery  of said letter bears the Claimant’s signature.  \nRegarding the letter sent by first-class mail, it has not been returned to the Commission.   \nThe Commission sent a Notice of Hearing to the parties on March 27, 2025, scheduling the \ndismissal hearing for May 8, 2025.   Said hearing notice was sent to the Claimant by both first-\nclass and certified mail to the same address as before.   \nPer tracking information received from by the Commission from the United States Postal \nService, the hearing notice sent via certified mail was delivered to the Claimant on April 2, 2025.  \nAgain, the Claimant took delivery of the Hearing Notice when she picked it up from the Altheimer \nPostal  Facility.  The  signature  of  the  recipient shows  that  the  Claimant  signed  for  the  notice  of \nhearing.  However, the notice sent by first-class mail has not been returned to the Commission.   \n \n\nBrowley – H405519 \n \n \n4 \n \nThus, the evidence preponderates that reasonable notice of the dismissal hearing was made \nupon the Claimant.  \nStill, there was no response from the Claimant.    \nTherefore, the dismissal hearing was conducted on the Respondents’ motion to dismiss this \nclaim as formerly scheduled.  Despite having received notice of the dismissal hearing, there was \nno response from the Claimant.  However, the Claimant appeared at the hearing venue prior to the \nstart of the dismissal hearing, but she waived her appearance and participation in the hearing upon \nlearning the nature of the hearing.  Nevertheless, the Respondents appeared at the hearing through \ntheir lawyer.  The Respondents’ attorney argued, among other things, for dismissal of this claim \nbecause the Claimant has made no bona fide request for a hearing or taken any action to prosecute \nor otherwise resolve her claim since the filing of the Form AR-C in August 2024.  Hence, counsel \nfurther argued that more than six (6) months have passed since the Claimant filed the Form AR-C \nwith the Commission, without making any type of bona fide request for a hearing.  Specifically, \nthe attorney for Respondents moved to dismiss this claim under the authority of Ark. Code Ann. \n§11-9-702, and/or Commission Rule 099.13, without prejudice.   \n            Adjudication  \nThe statutory provision and Arkansas Workers’ Compensation Rule applicable to the \nRespondents’ motion for dismissal of this claim for initial workers’ compensation benefits are \noutlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \n\nBrowley – H405519 \n \n \n5 \n \nCommission Rule 099.13 provides:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance  \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \nSince the filing of the Form AR-C, in August 2024, the Claimant has made no bona fide \nrequest for a hearing with respect to her claim.  Hence, the evidence demonstrations that more than \nsix  (6)  months  have  passed  since  the  filing  of  the  Claimant’s  claim  for  initial  workers’ \ncompensation benefits.   Hence, the Claimant has failed to timely prosecute her claim.  Moreover, \nthe Claimant has indicated that she does not object to her claim being dismissed.   \nConsidering all the foregoing, I am compelled to conclude that the Claimant has abandoned \nher claim for workers’ compensation benefits.  Based on all the aforementioned reasons, I find that \nthe Respondents’ motion  to dismiss  this  claim is  warranted.  Therefore,  pursuant  to Ark.  Code \nAnn. §11-9-702 (a) (4) (Repl. 2012) and Commission Rule 099.13, this claim for initial benefits \nis hereby respectfully dismissed for want of prosecution.  Said dismissal is without prejudice, to \nthe refiling of this claim within the limitation period specified by law.   \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on the record before  me,  I hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n\nBrowley – H405519 \n \n \n6 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. On August 26, 2024, the Claimant filed a Form AR-C with the Commission \nin  this  matter  asserting  her entitlement to initial workers’ compensation \nbenefits due to an accidental injury to her left hand/fingers occurring in May \n2023. \n \n3. More than six (6) months have passed since the filing of the Form AR-C, \nand she  has  made no  bona  fide  request for  a  hearing with  respect  to  her \nclaim.    \n \n4. The Respondents filed a motion to dismiss with the Commission asking that \nthe within claim be dismissed due to a lack of prosecution. \n \n5.         Reasonable notice of the motion to dismiss and hearing was had on all the \nparties.  \n \n6.        The evidence preponderates that the Respondents’ motion to dismiss this  \n            claim for want of prosecution is warranted.   \n \n7.        That the Respondents’ motion to dismiss is granted pursuant to Ark. Code  \n           Ann. §11-9-702 (a)(4) (Repl. 2012) and Commission Rule 099.13, without    \nprejudice, to the refiling of the claim within the limitation periods specified      \nby law.   \n \n       ORDER \n \nIn accordance with the foregoing findings of fact and conclusions of law, this claim is \nhereby dismissed without prejudice, pursuant to Ark. Code Ann §11-9-702 and Commission \nRule 099.13 to the refiling of it within the specified limitation period.   \nIT IS SO ORDERED. \n                                    \n                                                                                              \n______________________________ \n                                                                                                CHANDRA L. BLACK  \n                                                               Administrative Law Judge","textLength":11925,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H405519 JUDY B. BROWLEY, EMPLOYEE CLAIMANT JEFFERSON COUNTY, EMPLOYER RESPONDENT AAC RISK MANAGEMENT SERVICES, CARRIER/TPA RESPONDENT OPINION FILED MAY 19, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in Pine Bluff, Jefferson County,...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:52.539Z"},{"id":"alj-H100341-2025-05-16","awccNumber":"H100341","decisionDate":"2025-05-16","decisionYear":2025,"opinionType":"alj","claimantName":"Demetrius Chism","employerName":"Little Rock Sch. Dist","title":"CHISM VS. LITTLE ROCK SCH. DIST. AWCC# H100341 May 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Chism_Demetrius_H100341_20250516.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Chism_Demetrius_H100341_20250516.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H100341 \n \n \nDEMETRIUS CHISM, EMPLOYEE CLAIMANT \n \nLITTLE ROCK SCH. DIST., \n SELF-INSURED EMPLOYER RESPONDENT \n \nRISK MGMT. RESOURCES, \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED MAY 16, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 15, 2025, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, represented   by   Gregory   R.   Giles,   Attorney   at   Law,   Texarkana, \nArkansas, neither appearing. \n \nRespondents represented  by  Ms. Melissa  Wood,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on May 15, 2025, in Little \nRock,  Arkansas.   No  testimony  was  taken  in  the  case.   Neither Claimant nor  his \ncounsel appeared at  the  hearing.   Admitted  into  evidence  was  Respondents’ \nExhibit 1, pleadings and forms related to this claim, consisting of one index page \nand  11  numbered  pages  thereafter.  Also,  in  order  to  address  adequately  this \nmatter  under  Ark.  Code  Ann. § 11-9-705(a)(1)  (Repl. 2012)(Commission  must \n“conduct the hearing . . . in a manner which best ascertains the rights of the \nparties”), and without objection, I have blue-backed to the record documents from \nthe Commission’s file on the claim,  consisting  of ten pages.  In  accordance  with \n\nCHISM – H100341 \n \n2 \n \nSapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, these \ndocuments have been served on the parties in conjunction with this opinion. \n The record reflects the following procedural history: \n Per  the Form  AR-C filed on May  5,  2021,  Claimant allegedly suffered \nmultiple injuries at  work  on December  15,  2021, when  he  fell  through  a  rotten \ntrailer  floor.  This  claim  has  been  the  subject  of  a  mediation,  and  has  been \nassigned  to  me  on  multiple  occasions,  including  on  September  30,  2024,  to \nconduct   a   full   hearing.      Following   a   prehearing   telephone   conference   on \nDecember  9,  2024,  a  prehearing  order  was  issued  on  December  10,  2024,  that \nscheduled  a  hearing  for February  5,  2025.    That  order  listed  the  following \nstipulations  reached  by  the  parties  and  issues  to  have  been  litigated  at  the \nhearing: \n Stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  employee/self-insured  employer/third-party  administrator  rela- \ntionship  existed  among  the  parties  on  December  14,  2020,  when \nClaimant  sustained  compensable  injuries  to  his  bilateral  shoulders \nas well as to his right hip and knee. \n3. Respondents accepted the above injuries as compensable and paid \nmedical    and    indemnity    benefits    pursuant    thereto,    including \n\nCHISM – H100341 \n \n3 \n \npermanent  partial  disability  benefits  pursuant  to  impairment  ratings \ntotaling fifteen percent (15%) to the body as a whole assigned by Dr. \nBarry   Baskin   (whom   Claimant   saw   pursuant   to   a   change   of \nphysician) with regard to Claimant’s bilateral shoulder injuries. \n Issues: \n1. Whether Claimant’s alleged neck and back injuries are barred by the \nstatute of limitations. \n2. Whether  Claimant  sustained  compensable  injuries  to  his  neck  and \nback in the stipulated work-related specific incident of December 14, \n2020. \n3. Whether  Claimant  is  entitled  to  reasonable  and  necessary  medical \ntreatment of his alleged neck and back injuries. \n4. When did Claimant reach the end of his healing period? \n5. Whether  Claimant  is  entitled  to  additional  temporary  total  disability \nbenefits. \n6. Whether  Claimant  is  entitled  to  impairment  ratings,  and  permanent \npartial  disability  benefits  pursuant  thereto,  in  connection  with  his \nalleged neck and back injuries. \n7. What was Claimant’s average weekly wage? \n8. Whether Claimant is entitled to wage loss disability benefits. \n9. Whether Claimant is entitled to a controverted attorney’s fee. \n\nCHISM – H100341 \n \n4 \n \nAll other issues were reserved. \n But  on  the  eve  of  the  hearing,  the  parties  reached  a  settlement,  and  the \nhearing  was  cancelled.    On  February  18,  2025,  I  heard  and  approved  a  joint \npetition for partial settlement pursuant to Ark. Code Ann. § 11-9-805(a)(2) (Supp. \n2017). \n The record reflects that nothing further took place on the claim until March \n18, 2025.  On that date, Respondents filed the instant motion, asking for dismissal \nof the claim (or rather, that portion of the claim that was not the subject of the joint \npetition  for  partial  settlement) under  AWCC  R.  099.13  because  Claimant  has \nfailed to request a hearing on the claim within the last six months.  The claim was \nreassigned  to me  on  March  19,  2025;  and  on  that  same  date,  my office  wrote \nClaimant and  his  counsel,  asking  for  a  response  to  the  motion  within  20  days.  \nThe  letter  was  sent  by  first  class  and  certified  mail  to  the Katy,  Texas address \nlisted  for  Claimant  in  the  file  and supplied  by  him.   However,  both  items  of \ncorrespondence to him were returned to the Commission, with the certified letter \nbearing  the  notation  that  it  was  unclaimed,  and  the  first-class  item  stating  that  it \nwas  not  deliverable  as  addressed.    The  letter  to  Claimant’s  counsel  was  not \nreturned.   Regardless,  no  response  from either  individual to  the  motion  was \nforthcoming.  On April 9, 2025, a hearing on the Motion to Dismiss was scheduled \nfor May 15, 2025, at 9:30 a.m. at the Commission in Little Rock.  The notice was \nsent  to  Claimant  via  first-class  and  certified mail  to the  same  address  as  before.  \n\nCHISM – H100341 \n \n5 \n \nIn this instance, the certified letter was returned to the Commission, unclaimed, on \nMay  14,  2025,  while  the  first-class  letter  was  not  returned.  Claimant’s counsel \nemailed  my  office  on  April  9,  2025,  indicating  that  he  did  not  plan  to  attend  the \nhearing. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled.    Again, \nneither Claimant nor  his  attorney  made  an  appearance  at  it.    But  Respondents \nappeared through counsel and argued for dismissal under the foregoing authority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for additional \nbenefits  is  hereby  dismissed  without  prejudice  under  AWCC  R. \n099.13. \n\nCHISM – H100341 \n \n6 \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the May 15, 2025, hearing to argue against its \ndismissal) since the approval of his joint petition for partial settlement on February \n18,  2025.    Thus,  the  evidence  preponderates  that  dismissal  is  warranted  under \nRule 13. \n\nCHISM – H100341 \n \n7 \n \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \nthe  foregoing,  I agree  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":9816,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H100341 DEMETRIUS CHISM, EMPLOYEE CLAIMANT LITTLE ROCK SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT RISK MGMT. RESOURCES, THIRD-PARTY ADM’R RESPONDENT OPINION FILED MAY 16, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 15, 2025, ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["hip","knee","shoulder","neck","back"],"fetchedAt":"2026-05-19T22:40:48.365Z"},{"id":"alj-H404428-2025-05-16","awccNumber":"H404428","decisionDate":"2025-05-16","decisionYear":2025,"opinionType":"alj","claimantName":"Alesha Dabney","employerName":"Dollar General Store","title":"DABNEY VS. DOLLAR GENERAL STORE AWCC# H404428 May 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DABNEY_ALESHA_H404428_20250516.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DABNEY_ALESHA_H404428_20250516.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404428 \n \n \nALESHA M. DABNEY,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nDOLLAR GENERAL STORE,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nDOLGENCORP, LLC/ \nSEDGWICK CLAIMS MG’T SERVICES, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nOPINION FILED MAY 16, 2025,  \nDENYING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \nHearing conducted on Wednesday, May 14, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Alesha M. Dabney, pro se, of Sherwood, Pulaski County, Arkansas, appeared \nin person at the hearing. \n \nThe respondents were represented by the Honorable Lee J. Muldrow, Wright, Lindsey & Jennings, \nLittle Rock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Wednesday, May 14, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and Commission Rule 099.13 (2025 Lexis Replacement).  \n         The claimant herein initially was represented by an attorney, the Honorable Gregory R. Giles. \nBy order filed January 29, 2025, the Full Commission granted Mr. Giles’s motion to withdraw as \nthe claimant’s  attorney of record. Thereafter, on  March 12, 2025, the respondents  filed a letter \n\nAshley M. Dabney, AWCC No. H404428 \n2 \n \nmotion  to  dismiss  (MTD)  this  claim  without  prejudice  with  the  Commission.  (Respondents’ \nExhibit 1).  \n        Pursuant to the applicable law the Commission provided the claimant due and legal notice of \nboth the respondents’ MTD as well as notice of the subject hearing via the United States Postal \nService (USPS), certified mail, return receipt requested, which she received on March 21, 2025. \n(Commission  Exhibit  1). The  claimant admittedly  did  not respond  in  any  way  to  either  the \nrespondents’  letter  MTD  or  the  hearing  notice;  however,  she  did appear pro  se at  the  subject \nhearing. (Hearing Transcript). \n        After  having  been  duly  sworn, the  claimant  testified  she has  tried  to  retain  an  attorney  to \nrepresent her in this matter, but to date has been unable to find a lawyer who is willing to represent \nher. She testified further she was unable to attend the December 30, 2024, appointment with Dr. \nCrouch which the respondents had scheduled for her due to transportation issues so she personally \ntook the initiative and rescheduled it  for February 2025. She was unable  to attend the February \n2025 appointment because her car was repossessed that month and she had no way to attend the \nappointment. Thereafter, the claimant rescheduled the appointment with Dr. Crouch for some time \nin  March  2025.  She  said  it  was  her  understanding  Dr.  Crouch  intended  to  prescribe  physical \ntherapy  (PT)  for  her.  She  testified  she  had  called  a  “Ms.  Milliken”  and  another  person  she \nunderstood were responsible for handling her workers’ compensation claim on the respondents’ \nbehalf, but that her call(s) were not returned. The claimant objected to the dismissal of her claim \nand said she would like to try to obtain counsel to represent her in this matter. (Hearing Transcript, \nClaimant’s Testimony). \n\nAshley M. Dabney, AWCC No. H404428 \n3 \n \n       The ALJ strongly encouraged the claimant to retain the services of an attorney to represent \nher in this matter, and told her the Commission had legal advisors with whom she could visit if \nshe so desired. (After the hearing, the claimant was directed to the Legal Advisors Division.) \n       The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Replacement), as well as our \ncourt  of  appeals’  ruling  in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d 287 (Ark. App. 2004), the Commission scheduled and conducted the subject hearing on \nthe respondents’ MTD filed March 12, 2025. The claimant’s testimony, other evidence of record, \nand counsel’s argument in support of the MTD revealed the respondents filed the MTD because it \nwas their understanding the claimant had simply failed and/or refused to attend the December 30, \n2024, appointment they had scheduled for her and, also, it was their understanding the claimant \nhad not seen Dr. Crouch or any other physician since she admittedly failed to attend the scheduled \nDecember 30, 2024, appointment.  \n       The  evidence  adduced  at  the  hearing  further  revealed the  respondents  were  unaware of  the \nclaimant’s position concerning her problem of a lack of transportation; that she had in fact seen \nDr.  Crouch  at  least  one  (1)  time  in  2025  after  rescheduling  the  appointment  herself;  or  that  the \nclaimant  alleges  she  tried  to  contact  a  “Ms.  Milliken”  [sic]  or  anyone  else  associated  with  the \nrespondents regarding rescheduling the appointment with Dr. Crouch or any other issues related \nto her claim until the claimant testified at the subject hearing. And, of course, the claimant appeared \nin  person  pro  se  at  the  hearing  and  requested  her  claim  not  be  dismissed  because  it  was  her \nunderstanding Dr. Crouch intended for her to undergo physical therapy (PT). \n\nAshley M. Dabney, AWCC No. H404428 \n4 \n \n        Therefore, after a thorough consideration of the issues herein, the applicable law as applied \nto the facts of this claim, and other relevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having received due  and  legal  notice  of the respondents’  MTD filed with  the \nCommission on March 12, 2025, as well as notice of the subject hearing date, time, and \nplace, the claimant did not respond in any way to the MTD, but she did appear in person \nand pro se at the hearing and requested the ALJ not dismiss her claim due to her alleged \nneed for additional medical treatment.  \n \n3. Therefore, the respondents’ letter MTD filed March 12, 2025, is dismissed at this time. The \nrespondents’ may, of course, refile an MTD in the future if they believe they have grounds \nto do so.  \n \n        THE  CLAIMANT  IS  STRONGLY  ENCOURAGED  TO  RETAIN  AN  ATTORNEY \nTO REPRESENT HER IN THIS MATTER. MOREOVER, THE CLAIMANT MAY VISIT \nIN PERSON OR CALL THE COMMISSION’S LEGAL ADVISORS DIVISION AT 1-800-\n250-2511 OR 501-682-2694 IF SHE HAS ANY QUESTIONS CONCERNING HER CLAIM, \nTHE HEARING PROCESS, AND/OR RELATED MATTERS.  \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \nMP/mp \n\nAshley M. Dabney, AWCC No. H404428 \n5","textLength":7857,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404428 ALESHA M. DABNEY, EMPLOYEE CLAIMANT DOLLAR GENERAL STORE, EMPLOYER RESPONDENT DOLGENCORP, LLC/ SEDGWICK CLAIMS MG’T SERVICES, INC. CARRIER/TPA RESPONDENT OPINION FILED MAY 16, 2025, DENYING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:50.439Z"},{"id":"alj-H405524-2025-05-15","awccNumber":"H405524","decisionDate":"2025-05-15","decisionYear":2025,"opinionType":"alj","claimantName":"Christopher Bynum","employerName":"Mccormick Indust. Abatement Svcs","title":"BYNUM VS. McCORMICK INDUST. ABATEMENT SVCS. AWCC# H405524 May 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Bynum_Christopher_H405524_20250515.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bynum_Christopher_H405524_20250515.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H405524 \n \n \nCHRISTOPHER L. BYNUM, EMPLOYEE CLAIMANT \n \nMcCORMICK INDUST. ABATEMENT SVCS., \n EMPLOYER RESPONDENT \n \nAMERICAN INTERSTATE INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MAY 15, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 14, 2025, \nin Clinton, Van Buren County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on May 14,  2025, in \nClinton, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   Admitted  into \nevidence was Respondents’ Exhibit 1, pleadings and forms related to this claim, \nconsisting  of two pages.  Also,  in  order  to  address  adequately  this  matter  under \nArk.  Code  Ann. § 11-9-705(a)(1)  (Repl.  2012)(Commission  must  “conduct  the \nhearing . . . in a manner which best ascertains the rights of the parties”), and \nwithout   objection, I   have   blue-backed   to   the   record documents from   the \nCommission’s file on the claim,  consisting  of eight pages.  In  accordance  with \n\nBYNUM – H405524 \n \n2 \n \nSapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, these \ndocuments have been served on the parties in conjunction with this opinion. \n The record reflects the following procedural history: \n Per the Form AR-C filed on August 26, 2024, Claimant purportedly suffered \nan injury at work on July 23, 2024, in the form of a heatstroke.  According to the \nForm AR-2 that was also filed on August 6, 2024, Respondents controverted the \nclaim in its entirety. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary 26, 2025.  On that date, Respondents filed the instant motion, asking for \ndismissal  of  the  claim  under  AWCC  R.  099.13  because  Claimant  has failed  to \nprosecute  his  claim.    The  matter  was  assigned  to  Administrative  Law  Judge \nJames D. Kennedy.  His office wrote Claimant on February 26, 2025, asking for a \nresponse  to  the  motion  within  20  days.    The  letter  was  sent  by  first  class  and \ncertified mail to the Atkins, Arkansas address listed for Claimant in the file and on \nhis Form AR-C.  “Amber Bynum” signed for the certified letter on March 1, 2025; \nand the  first-class  letter  was  not  returned.    Regardless,  no  response  from \nClaimant  to  the  motion  was  forthcoming.   On March  18,  2025,  a  hearing  on  the \nMotion  to  Dismiss  was  scheduled  for May 14,  2025,  at  10:30  a.m.  at  the Van \nBuren County Quorum Courtroom in Clinton.  The notice was sent to Claimant via \nfirst-class and certified mail to the same address as before.  In this instance, the \n\nBYNUM – H405524 \n \n3 \n \ncertified  letter  was  returned  to  the  Commission,  unclaimed,  on April  11,  2025, \nwhile the first-class letter was not returned. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared  through \ncounsel and argued for dismissal under the foregoing authority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial \nbenefits  is  hereby  dismissed  without  prejudice  under  AWCC  R. \n099.13. \n\nBYNUM – H405524 \n \n4 \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the May 14, 2025, hearing to argue against its \ndismissal)  since the  filing  of  his  Form  AR-C  on August  26,  2024.    Thus,  the \nevidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \n\nBYNUM – H405524 \n \n5 \n \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \nthe  foregoing,  I agree  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":6772,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H405524 CHRISTOPHER L. BYNUM, EMPLOYEE CLAIMANT McCORMICK INDUST. ABATEMENT SVCS., EMPLOYER RESPONDENT AMERICAN INTERSTATE INS. CO., CARRIER RESPONDENT OPINION FILED MAY 15, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 14, 2025,...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:42.157Z"},{"id":"alj-H404748-2025-05-15","awccNumber":"H404748","decisionDate":"2025-05-15","decisionYear":2025,"opinionType":"alj","claimantName":"Eugene Pendergast","employerName":"Xylem Tree Experts, Inc","title":"PENDERGAST VS. XYLEM TREE EXPERTS, INC. AWCC# H404748 May 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Pendergast_Eugene_H404748_20250515.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Pendergast_Eugene_H404748_20250515.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H404748 \n \n \nEUGENE R. PENDERGAST, EMPLOYEE CLAIMANT \n \nXYLEM TREE EXPERTS, INC., \nEMPLOYER RESPONDENT \n \nTRUMBULL INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MAY 15, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on May 14,  2025, in \nClinton, Van Buren County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on May 14,  2025, in \nClinton, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   In  order  to \naddress  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1)  (Repl. \n2012)(Commission  must  “conduct  the  hearing  .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe record documents from the Commission’s file on the claim, consisting of nine \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \n\nPENDERGAST – H404748 \n \n2 \n \nArk.  App.  LEXIS 549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n The record shows the following procedural history: \n On July 24, 2024, through then-counsel Mark Alan Peoples, Claimant filed \na  Form  AR-C, requesting  the  full  range  of initial benefits in  connection  with an \ninjury in the form of Lyme disease, which he alleged he contracted as a result of a \ntick  bite  he  suffered  while  at  work on June 19,  2024.  No  hearing  request \naccompanied  this  filing.   On July  31,  2024,  Respondents  filed  a  Form  AR-2, \nstating  that  they  were controverting  the  claim  in  its  entirety.  Peoples moved  to \nwithdraw from his representation of Claimant.  In an order entered on December \n20, 2024, the Full Commission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary 14, 2025.  On that date, Respondents filed the instant motion, asking for \ndismissal of the claim under Ark. Code Ann. § 11-9-702 (Repl. 2012) and AWCC \nR.  099.13 because Claimant  had not  sought a hearing  before  the  Commission \nand  had  otherwise  failed  to  pursue  his  claim.   The  file  was  assigned  to \nAdministrative  Law  Judge James  D.  Kennedy  on  February  20,  2025.    His office \nwrote Claimant that same day, asking for a response to the motion within 20 days.  \nThe  letter  was  sent  by  first  class and  certified mail  to the Mountain  View, \nArkansas address for  him listed  in  the  file and  on his Form  AR-C.   The  certified \nletter was  returned  to  the  Commission on February 26,  2025,  with  the  notation \n\nPENDERGAST – H404748 \n \n3 \n \nthat  his  address  lacked  a  mail  receptacle; but the  first-class  letter  was  not \nreturned.  Regardless, no response from Claimant to the motion was forthcoming.  \nOn March 13,  2025,  a  hearing  on  the Motion to Dismiss was  scheduled for May \n14,  2025, at 10:00 p.m.  at  the Van  Buren County  Quorum  Courtroom in Clinton.  \nThe  notice  was  sent  to  Claimant  via  first-class  and  certified  mail to  the  same \naddress as before.  In this instance, Claimant claimed the certified letter on March \n17, 2025; and the first-class letter was, again, not returned. \n The hearing on the Motion to Dismiss proceeded as scheduled before the \nundersigned.  Again, Claimant failed to appear at the hearing.  But Respondents \nappeared   through   counsel   and   argued   for   dismissal   under the   foregoing \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n\nPENDERGAST – H404748 \n \n4 \n \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for initial \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \n\nPENDERGAST – H404748 \n \n5 \n \npursuit of it (including appearing at the May 14, 2025, hearing to argue against its \ndismissal) since the filing of his Form AR-C on July 24, 2024.  Thus, the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nit is unnecessary to address the application of Ark. Code Ann. § 11-9-702. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7286,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H404748 EUGENE R. PENDERGAST, EMPLOYEE CLAIMANT XYLEM TREE EXPERTS, INC., EMPLOYER RESPONDENT TRUMBULL INS. CO., CARRIER RESPONDENT OPINION FILED MAY 15, 2025 Hearing before Administrative Law Judge O. Milton Fine II on May 14, 2025, in Clinton, Van Buren Cou...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:44.232Z"},{"id":"alj-H303352-2025-05-15","awccNumber":"H303352","decisionDate":"2025-05-15","decisionYear":2025,"opinionType":"alj","claimantName":"Pablo Seda","employerName":"Wayne Farms LLC","title":"SEDA VS. WAYNE FARMS LLC AWCC# H303352 May 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SEDA_PABLO_H303352_20250515.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SEDA_PABLO_H303352_20250515.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H303352 \n \nPABLO SEDA, EMPLOYEE   CLAIMANT \n \nWAYNE FARMS LLC, EMPLOYER RESPONDENT \n \nBROADSPIRE SERVICES INC,/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MAY 15, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope County, \nArkansas. \n \nClaimant is pro se did not attend the hearing. \n \nRespondents are represented by BETTY J. HARDY, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On   May  24, 2023,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on April  6, \n2023.   Claimant was represented at the time by Mark Peoples who filed a Motion to Withdraw on \nSeptember 19, 2023, and was allowed to withdraw on October 3, 2023.   \nOn February 26, 2025, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for \nMay 13, 2025.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known \naddress in the Commission’s file.  The notice was delivered to claimant on March 24, 2025.    Claimant \ndid not respond to respondent’s motion and did not appear in person at the hearing on May 13, 2025.  \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \n\nSeda-H303352 \n \n2 \n \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2089,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303352 PABLO SEDA, EMPLOYEE CLAIMANT WAYNE FARMS LLC, EMPLOYER RESPONDENT BROADSPIRE SERVICES INC,/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MAY 15, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope County, Arkansas....","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:46.296Z"},{"id":"full_commission-H208114-2025-05-14","awccNumber":"H208114","decisionDate":"2025-05-14","decisionYear":2025,"opinionType":"full_commission","claimantName":"Richard Clark","employerName":"Nestle Us Holdco, Inc","title":"CLARK VS. NESTLE US HOLDCO, INC. AWCC# H208114 May 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Clark_Richard_H208114_20250514.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Clark_Richard_H208114_20250514.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208114 \n \nRICHARD CLARK, EMPLOYEE      CLAIMANT \nNESTLE US HOLDCO, INC.,  \nEMPLOYER                          RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA, \nCARRIER            RESPONDENT \n \nESIS, INC., \nTPA             RESPONDENT \n \n \n \nOPINION FILED MAY 14, 2025 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant appeared pro se.  \nRespondents represented by the HONORABLE MICHAEL STILES, Attorney, \nLittle Rock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Claimant appeals  an  opinion  and  order  of  the Administrative  Law \nJudge filed July 24, 2024.  In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law:  \n\n2 \nCLARK- H208114 \n1. The Commission has jurisdiction over this claim.  \n \n2. The  Claimant  and  Respondents  both  had \nreasonable notice of the June 28, 2024, hearing.  \n \n3. Respondents have proven by a preponderance of \nthe  evidence  that  Claimant  has  failed  to \nprosecute  his  claim  under  Arkansas  Workers' \nCompensation Commission Rule 099.13. \n \n4. The Respondents’ oral Motion to Dismiss should \nbe granted.  \n \n5. This claim is hereby dismissed without prejudice.  \n \n \nWe have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s July 24, 2024 \ndecision is supported by a preponderance of the credible evidence, correctly \napplies  the  law,  and  should  be  affirmed.  Specifically,  we  find  from  a \npreponderance of the evidence that the findings made by the Administrative \nLaw  Judge  are  correct  and  they  are,  therefore,  adopted  by  the  Full \nCommission.  \nTherefore, we affirm and adopt the July 24, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n \n \n \n \n\n3 \nCLARK- H208114 \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n                       _______________________________ \n     MICHAEL R. MAYTON, Commissioner","textLength":2322,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208114 RICHARD CLARK, EMPLOYEE CLAIMANT NESTLE US HOLDCO, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA, CARRIER RESPONDENT ESIS, INC., TPA RESPONDENT OPINION FILED MAY 14, 2025 Upon review before the FULL COM...","outcome":"affirmed","outcomeKeywords":["affirmed:3","dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.314Z"},{"id":"full_commission-H202890-2025-05-13","awccNumber":"H202890","decisionDate":"2025-05-13","decisionYear":2025,"opinionType":"full_commission","claimantName":"Marion Pederson","employerName":"Optum Care, Inc","title":"PEDERSON VS. OPTUM CARE, INC. AWCC# H202890 May 13, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Pederson_Marion_H202890_20250513.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Pederson_Marion_H202890_20250513.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H202890  \n \nMARION PEDERSON, \nEMPLOYEE \n \nCLAIMANT \nOPTUM CARE, INC.,  \nEMPLOYER \n \nRESPONDENT \nFARMINGTON CASUALTY COMPANY/ \nSEDGWICK CMS, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 13, 2025  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE RANDY P. MURPHY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nNovember 20, 2024.  The administrative law judge found that the claimant \nproved she was entitled to permanent partial disability benefits “in the \namount of 7% to the body as a whole.”  After reviewing the entire record de \nnovo, the Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that she sustained a permanent anatomical \nimpairment as a result of the compensable injury.     \nI.  HISTORY \n\nPEDERSON - H202890  2\n  \n \n \n The record indicates that Marion Hartwick Pederson, now age 73, \ntreated with Dr. Tanner Coleman, D.C. at Beemer Back Center beginning in \nabout July 2011.  The claimant complained of “Low back pain going into \nright buttock.”  The claimant’s chiropractic treatment included “manipulation \nto the cervical region[.]”  The claimant scheduled approximately two weekly \nvisits with the chiropractor over a course of several years.   \n It was noted at NWA Neurosciences Pain Management in May 2020, \n“The patient is being seen for a routine clinic follow-up of neck pain....New \ncomplaint of neck pain.  She has had some neck issues 6 years ago on the \nleft side.  Very painful to turn her head.”  An “Active Problems” list at that \ntime included “2.  Bulge of cervical disc without myelopathy....3.  Cervical \nspondylosis.”  Dr. Brent Weilert performed a Trigger Point Injection.  \n The claimant’s testimony indicated that she became employed as a \nRadiologic Technologist with the respondents, Optum Care, Inc. in about \nJanuary 2020.  The claimant testified that she sustained an accidental injury \non April 4, 2022:  “I was doing a shoulder x-ray on a patient and I had \nalready done two views....[S]he just all of a sudden out of the blue totally \nfainted and went limp.  So I grabbed her head so she wouldn’t crack it open \non the concrete floor and what it did, it knocked us....I fell 90 degrees to the \nfloor sideways without being able to put my arms out or anything to catch \nmy fall because I held her head.  She did not get hurt at all, but I got hurt.”     \n\nPEDERSON - H202890  3\n  \n \n \nThe parties stipulated that the claimant “sustained a compensable \ninjury to her right hip, low back, and cervical/neck.”  The record contains a \nnote dated on or about April 4, 2022:  “[T]he employee states she was \ndoing an upright shoulder xray.  States the patient fainted.  The employee \nreports the patient fell on her.  She reports they fell flat to the floor, \nsideways.  States she hit the floor on the right hip.”     \nThe chiropractor noted in part on April 5, 2022, “The neck pain on \nboth sides is considerably worse since the last treatment, the mid back pain \nis considerably worse since her last treatment, and the low back pain is a \nslight worsening of the condition since the last visit.” \nAn x-ray of the claimant’s cervical spine was taken on May 2, 2022: \nBONES:  No acute fracture or aggressive appearing osseous \nlesion.  Vertebral body height are (sic) maintained.  \nAtlantoaxial relationship with intact (sic). \nDISCS/DEGENERATIVE CHANGES:  Mild disc space \nnarrowing is seen at C4/C5 and C5-C6 with small osteophyte \nformation.  Posterior vertebral body alignment is within normal \nlimits.   \nSOFT TISSUES:  No prevertebral soft tissue swelling.  The \nvisualized lung apices are clear. \nIMPRESSION:  No acute cervical spine abnormality.  Minimal \ndegenerative disc disease.   \n \n The claimant was evaluated for physical therapy on May 10, 2022: \n“Injured Worker reports an injury to R hip, low back, and L neck while a \npatient fainted from a standing position and she held the patient and she fell \ndirectly onto her R side without being able to put her arms out to brace her \n\nPEDERSON - H202890  4\n  \n \n \nfall....We will develop a home exercise program.”  The record indicates that \nthe claimant subsequently underwent a large number of physical therapy \nvisits.   \n An MRI of the claimant’s cervical spine was taken on May 13, 2022 \nwith the impression, “Multilevel cervical spondylosis, worst at the C3-4 \nthrough C6-7 levels.”     \nAn MRI of the claimant’s cervical spine was apparently taken on or \nabout May 16, 2022 and showed “Moderate to Severe arthritic changes \nnoted.” \nCandace Harper, P.A. reported on June 1, 2022: \nPatient presents for evaluation of her cervical spine.  She had \na work related injury 2 months ago when a patient passed out \nwhile getting xrays and she cradled the patient’s head, and fell \nlaterally to the floor.  Has neck pain.  Cervical MRI reviewed \nshowing multilevel degenerative changes with disc/osteophyte \ncausing canal stenosis worse at C5-6.  I measure a 7.6 mm \ncanal.  She is currently in physical therapy.  Recommend she \ncontinue this.  Will review imaging w/Dr. Armstrong as well \ngiven her hyperflexia which may be her normal.  I will call \nonce he has reviewed imaging.  Pt. agrees w/plan.   \n \n Ms. Harper assessed “1.  Neck pain,” “2.  Work related injury,” and \n“3.  Cervical spondylosis.”   \nAn MRI of the claimant’s cervical spine was taken on November 28, \n2022, with the following impression: \n1. MULTILEVEL CERVICAL SPONDYLOSIS WITH \nMODERATE CANAL STENOSIS AT C4/5 AND C5/6. \n\nPEDERSON - H202890  5\n  \n \n \n2. SEVERE BILATERAL NEURAL FORAMINAL \nNARROWING AT C3/4, SEVERE RIGHT NEURAL \nFORAMINAL NARROWING AT C4/5 AND SEVERE \nBILATERAL NEURAL FORAMINAL NARROWING AT \nC5/6.   \n \n   Dr. Owen L. Kelly corresponded with the respondents’ attorney on \nMarch 23, 2023 and reported in part: \nMs. Pederson has a degenerative disc disease of the cervical \nspine confirmed by objective imaging.  She may have \nsustained a cervical sprain/strain at the time of the accident, \nbut no identifiable injury is noted.  Her functional and \nneurologic status are normal.  The degenerative findings are \nnot related the the (sic) 4/4/21 accident.... \nMs. Pederson has reached maximum medical improvement \nas it relates to the 4/4/21 accident.... \nNo impairment rating would be associated with the 4/4/21 \naccident.   \n \n An x-ray of the claimant’s cervical spine was taken on May 22, 2023 \nwith the impression, “NO ACUTE OSSEOUS ABNORMALITY.  \nMULTILEVEL CERVICAL SPONDYLOSIS WITH INTERVERTEBRAL DISC \nSPACE NARROWING WORST AT C4-5 AND C5-6.” \n On October 16, 2023, Dr. David Knox completed a questionnaire \nprovided by the claimant’s attorney.  Dr. Knox opined that the claimant had \nreached maximum medical improvement.  Dr. Knox opined that the \nclaimant had sustained a 7% whole-body impairment rating.   \n Dr. Knox reported on October 17, 2023: \nPatient 1 and half years status post work comp injury \ncontinuing difficulty with cervical radiculopathy.  Reviewed \nMRI scan demonstrating significant disc herniation on the right \n\nPEDERSON - H202890  6\n  \n \n \nat C4-5 C5-6.  I informed her that surgical options do exist.  \nShe wants to settle her course a (sic) filled out her paperwork \nrecommended that she close her case she would qualify for a \n7% permanent partial disability.... \n \n A pre-hearing order was filed on June 26, 2024.  The claimant \ncontended, “The claimant contends that as a result of her compensable \ninjury of April 4, 2022, she is entitled to permanent partial disability benefits \nbased on a 7% rating to the body as a whole, interest, and an attorney’s \nfee.  Claimant reserves all other issues.”  The respondents contended, “The \nrespondents controvert the 7% impairment assigned by Dr. Knox.”   \n The parties agreed to litigate the following issues: \n1. Claimant’s entitlement to permanent partial disability \nbenefits based on a 7% rating assigned by Dr. Knox.   \n2. Interest. \n3. Attorney fee.   \n \nAfter a hearing, an administrative law judge filed an opinion on \nNovember 20, 2024.  The administrative law judge found that the claimant \nproved she was “entitled to payment of permanent partial disability benefits \nin an amount equal to 7% to the body as a whole as a result of her \ncompensable cervical injury.”  The administrative law judge determined that \nthe respondents were “liable for payment of permanent partial disability \nbenefits in an amount equal to 7% to the body as a whole.”  The \nrespondents appeal to the Full Commission.    \nII.  ADJUDICATION \n\nPEDERSON - H202890  7\n  \n \n \n Permanent impairment is any functional or anatomical loss remaining \nafter the healing period has been reached.  Johnson v. Gen. Dynamics, 46 \nArk. App. 188, 878 S.W.2d 411 (1994).  The Commission has adopted the \nAmerican Medical Association Guides to the Evaluation of Permanent \nImpairment (4\nth\n ed. 1993) to be used in assessing anatomical impairment.  \nSee Commission Rule 34; Ark. Code Ann. §11-9-522(g)(Repl. 2012).  It is \nthe Commission’s duty, using the Guides, to determine whether the \nclaimant has proved she is entitled to a permanent anatomical impairment.  \nPolk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).   \n Any determination of the existence or extent of physical impairment \nshall be supported by objective and measurable physical findings.  Ark. \nCode Ann. §11-9-704(c)(1)(B)(Repl. 2012).  Objective findings are those \nfindings which cannot come under the voluntary control of the patient.  Ark. \nCode Ann. §11-9-102(16)(A)(i)(Repl. 2012).  Although it is true that the \nlegislature has required medical evidence supported by objective findings to \nestablish a compensable injury, it does not follow that such evidence is \nrequired to establish each and every element of compensability.  Stephens \nTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  All that \nis required is that the medical evidence be supported by objective findings.  \nSingleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006).  \n\nPEDERSON - H202890  8\n  \n \n \nMedical opinions addressing impairment must be stated within a reasonable \ndegree of medical certainty.  Ark. Code Ann. §11-9-102(16)(B)(Repl. 2012).   \n Permanent benefits shall be awarded only upon a determination that \nthe compensable injury was the major cause of the disability or impairment.  \nArk. Code Ann. §11-9-102(F)(ii)(a)(Repl. 2012).  “Major cause” means \n“more than fifty percent (50%) of the cause,” and a finding of major cause \nshall be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(Repl. 2012).  Preponderance of the evidence \nmeans the evidence having greater weight or convincing force.  \nMetropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d \n252 (2003).   \n An administrative law judge found in the present matter, “3.  \nClaimant has met her burden of proving by a preponderance of the \nevidence that she is entitled to payment of permanent partial disability \nbenefits in an amount equal to 7% to the body as a whole as a result of her \ncompensable cervical injury.”  The Full Commission finds that the claimant \ndid not prove she sustained a permanent anatomical impairment as a result \nof the compensable injury. \n According to the record before the Commission, the claimant began \ncomplaining of chronic neck pain no later than 2011.  It was reported in \n2020 that that the claimant had a “2.  Bulge of cervical disc without \n\nPEDERSON - H202890  9\n  \n \n \nmyelopathy.”  The claimant was also diagnosed with “Cervical spondylosis” \nin 2020.   \n The claimant’s testimony indicated that she became employed with \nthe respondents in about January 2020.  The claimant testified that she \nsustained an accidental injury on April 4, 2022.  The claimant testified that \nshe fell while holding a patient who had fainted.  The parties stipulated that \nthe claimant “sustained a compensable injury to her right hip, low back, and \ncervical/neck.\"  An x-ray of the claimant’s cervical spine taken May 2, 2022 \nshowed “No acute cervical spine abnormality [emphasis supplied].  Minimal \ndegenerative disc disease.”  An MRI of the claimant’s cervical spine was \ntaken on May 13, 2022 with the impression, “Multilevel cervical spondylosis, \nworst at the C3-4 through C6-7 levels.”  An MRI of the claimant’s cervical \nspine on or about May 16, 2022 showed “Moderate to Severe arthritic \nchanges[.]”  A physician’s assistant reported on June 1, 2022 that a cervical \nMRI showed “multilevel degenerative changes with disc/osteophyte causing \ncanal stenosis worse at C5-6.”  An MRI of the claimant’s cervical spine on \nNovember 28, 2022 confirmed, among other things, “Multilevel cervical \nspondylosis.”   \n Dr. Kelly opined on March 23, 2023 that the claimant had reached \nmaximum medical improvement.  Dr. Kelly opined, “No impairment rating \nwould be associated with the 4/4/21 accident.”  An x-ray of the claimant’s \n\nPEDERSON - H202890  10\n  \n \n \ncervical spine was taken on May 22, 2023 with the impression, “NO ACUTE \nOSSEOUS ABNORMALITY.”  Yet Dr. Knox opined on October 17, 2023 \nthat the claimant had sustained a herniated disc, and that the claimant was \ntherefore entitled to a 7% permanent anatomical impairment rating.   \n It is the Full Commission’s duty to translate the evidence of record \ninto findings of fact.  Gencorp Polymer Prods. v. Landers, 36 Ark. App. 190, \n820 S.W.2d 475 (1991).  It is within the Commission’s province to weigh all \nof the medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. App. 94, 989 S.W.2d 151 (1999).  In the \npresent matter, the Full Commission finds that Dr. Kelly’s opinion is credible \nand is entitled to more evidentiary weight than Dr. Knox’s opinion.  The \nevidence does not demonstrate that the claimant sustained a herniated disc \nas a result of the compensable injury sustained on April 4, 2022.  The \nCommission reiterates that an x-ray of the claimant’s cervical spine taken \non May 2, 2022 showed “No acute cervical spine abnormality.”  Subsequent \ndiagnostic testing revealed degenerative spondylosis with no probative \nevidence demonstrating that the claimant sustained a herniated cervical \ndisc as a result of the April 4, 2022 compensable injury.  The evidence of \nrecord corroborates Dr. Kelly’s expert opinion, “No impairment would be \nassociated with the 4/4/21 accident.    \n\nPEDERSON - H202890  11\n  \n \n \n The Full Commission finds that the claimant did not sustain any \npercentage of permanent anatomical impairment as a result of the April 4, \n2022 compensable injury.  The claimant did not prove that she sustained \npermanent anatomical impairment in accordance with the 4\nth\n Edition of the \nGuides, and the claimant did not prove she sustained permanent \nanatomical impairment established by objective or measurable physical \nfindings.  The claimant did not prove that the compensable injury was the \nmajor cause of any percentage of permanent physical impairment.  The Full \nCommission finds that Dr. Kelly’s opinion is entitled to significant evidentiary \nweight and Dr. Knox’s opinion is entitled to minimal evidentiary weight.   \n After our de novo review of the entire record, therefore, the Full \nCommission reverses the administrative law judge’s award of 7% \npermanent anatomical impairment.  The claimant did not prove by a \npreponderance of the evidence that she sustained any percentage of \npermanent physical impairment as a result of the compensable injury, and \nthis claim is respectfully denied and dismissed. \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents. \n\nPEDERSON - H202890  12\n  \n \n \nDISSENTING OPINION \n \nThe Respondent  appeals  an  administrative  law  judge  (hereinafter \nreferred to as “ALJ”) opinion filed November 20, 2024.  The ALJ found that \nthe Claimant proved she was entitled to permanent partial disability benefits \n“in the amount of 7% to the body as a whole.”  After reviewing the entire \nrecord de novo, I would agree with the ALJ’s findings and dissent with the \nmajority finding that the Claimant did not prove she was entitled to permanent \npartial disability benefits.  \n The Claimant sustained an admittedly compensable injury to her right \nhip, low back and cervical spine on April 4, 2022.  At that time the Claimant \nwas performing an x-ray on a patient when the patient “fainted and went \nlimp.”  The Claimant attempted to catch the patient and fell on the floor on \nthe  right  side  of  her  body.  The  Claimant  received  treatment  for  her \ncompensable injuries which included medications, injections and physical \ntherapy.  At some point prior to March 23, 2023, Dr. Owen Kelly, a board-\ncertified orthopedic surgeon, was hired by the Respondent to review the \nClaimant’s medical records.  Dr. Kelly found the Claimant to be at maximum \nmedical  improvement  and  anticipated  that  no  future  treatment  would  be \nnecessary for the Claimant’s neck and hip injuries.  Although Dr. Kelly’s \ncredentials as an orthopedic surgeon qualify him to provide insight, I do note \n\nPEDERSON - H202890  13\n  \n \n \nthat his evaluation refers to a date of injury that was one year prior to the \nactual work accident in question.  \nIt appears that shortly after Dr. Kelly’s report, Claimant exercised her \none time right to a change of physician.  On August 24, 2023, Claimant was \nseen by Dr. Luke Knox, a board-certified neurosurgeon, who reviewed her \nhistory, medical records, and diagnostic tests including an MRI.  Following \nhis examination and review, Dr. Knox assessed the Claimant as suffering \nfrom cervical disc disorder with radiculopathy, cervical spondylosis, cervical \nstenosis of the spinal canal, and chronic right shoulder pain. The Claimant \nwas again seen by Dr. Knox on October 17, 2023, at which time Dr. Knox \nidentified cervical disc herniations at C4-5 and C5-6.  Dr. Knox stated that \nsurgical options were available for this injury, and that physical therapy was \nrecommended.  Apparently, the  insurance carrier  refused  to  provide  this \ntreatment.  Considering these factors and the Claimant’s stated desire to \nsettle her claim, Dr. Knox then assessed permanent impairment of 7% to the \nbody as a whole.  It appears that this rating, as well as confirmation of \nmaximum medical improvement, work restrictions, and reasonable certainty \nof the opinions was previously addressed in correspondence between Dr. \nKnox and counsel for Claimant on or about August 30, 2023.  \n The  primary  issue  to  be  resolved  relates  to  the  assessment  of \nClaimant’s cervical condition by Dr. Kelly versus the assessment by Dr. Knox. \n\nPEDERSON - H202890  14\n  \n \n \nWhen medical opinions conflict, the Commission may resolve the conflict \nbased on the record as a whole and reach the result consistent with reason, \njustice, and common sense.  Barksdale Lumber v. McAnally, 262 Ark. 379, \n557 S.W.2d 868 (1977).  It is within the Commission’s province to weigh all \nof the medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nArk. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part:  \n(F)(ii)(a)  Permanent  benefits  shall  be  awarded  only  upon  a \ndetermination that the compensable injury was the major cause of the \ndisability or impairment.  \n “Major cause” means “more than fifty percent (50%) of the cause,” and a \nfinding of major cause shall be established according to the preponderance \nof the evidence.   Ark. Code Ann. §11-9-102(14)(Repl. 2012).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003). \nThe Claimant was injured on April 4, 2022, when a patient fell on her \nas she was conducting an x-ray.  The pre-hearing Order states that the \nparties agreed that the Claimant sustained compensable right hip, low back, \nand cervical/neck injuries as the result of this work accident.  The medical \nnotes dated April 7, 2022, reveal symptoms including left-sided neck pain. \nThe Claimant was seen again on April 18, 2022, and complained of constant \n\nPEDERSON - H202890  15\n  \n \n \ncervical pain with radiating symptoms into her left upper extremity.  As the \ncervical  treatment  continued  the  Claimant’s  pre-existing  problems  were \nnoted, with indications of the progression of her symptoms and restrictions. \nAn MRI was conducted on May 13, 2022, which revealed abnormalities at \nseveral levels of the Claimant’s cervical spine.  During a medical appointment \non May 25, 2022, the Claimant reported numbness in the 4\nth\n and 5\nth\n digits of \nthe right hand and was referred for a neurosurgical consult.  \nClaimant exercised her one-time right to change her physician began \ntreatment with Dr. Knox.  Dr. Knox found that the Claimant was at maximum \nmedical improvement and was entitled to an impairment rating of 7% to the \nbody as a whole.  Dr. Kelly did not treat the Claimant and only reviewed the \nmedical  records.  Based  upon  the  qualifications  of  Dr.  Knox  as  a \nneurosurgeon, the multiple personal visits and evaluations he provided, the \ntreatment  he  recommended and  the  clear reason for  his assessment  of \npermanent impairment, I find his opinion regarding impairment to be entitled \nto more weight than the opinion of Dr. Kelly.  Therefore, I would rule in favor \nof the Claimant and find that the Claimant is entitled to a 7% impairment \nrating to the body as a whole, and dissent with the majority.    \n  \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":22154,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H202890 MARION PEDERSON, EMPLOYEE CLAIMANT OPTUM CARE, INC., EMPLOYER RESPONDENT FARMINGTON CASUALTY COMPANY/ SEDGWICK CMS, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 13, 2025","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["back","cervical","neck","shoulder","hip","fracture","sprain","strain"],"fetchedAt":"2026-05-19T22:29:44.304Z"},{"id":"alj-H407233-2025-05-13","awccNumber":"H407233","decisionDate":"2025-05-13","decisionYear":2025,"opinionType":"alj","claimantName":"Adrian Adams","employerName":"Cal Ark International, Inc","title":"ADAMS VS. CAL ARK INTERNATIONAL, INC. AWCC# H407233 May 13, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ADAMS_ADRIAN_H407233_20250513.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ADAMS_ADRIAN_H407233_20250513.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H407233 \n \nADRIAN L. ADAMS, EMPLOYEE      CLAIMANT \n \nCAL ARK INTERNATIONAL, INC. EMPLOYER                                    RESPONDENT \n \nSAFETY FIRST INS. CO./ \nCCMSI              RESPONDENT \n \n OPINION AND ORDER DATED MAY 13, 2025 \n \nThe Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, was held on May 6, 2025. \nClaimant was pro-se and failed to appear. \nRespondents were represented by Guy Alton Wade, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 6\nth\n day of May, 2025, in Little \nRock Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArk. Code Ann. 11-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.   \nThe claimant was pro se and failed to appear on his own behalf.  The respondents were \nrepresented by Guy Alton Wade, of Little Rock Arkansas, who introduced thirteen (13) \npages of documents, which were admitted into the evidentiary record.      \n The documents  included  a  First  Report  of  Injury  which  provided  the claimant’s \nvehicle was hit by another vehicle and that he injured his upper extremities - shoulders.  \nA Form 2, dated November 7, 2024, provided that the claim was denied as it does not \nmeet the criteria for a compensable claim.  A letter dated December 23, 2024, provided \ndiscovery was propounded  to  the  Claimant.  The  Claimant  had previously been \n\nAdrian Adams – H407233 \n2 \n \nrepresented by Mark Allen Peoples, who was allowed to withdraw by an Order of the Full \nCommission, dated  February  5,  2025.  The  Respondents  filed  a  Motion  to  Dismiss  by \nletter dated February 12, 2025, and requested that the matter be dismissed for lack of \nprosecution, stating that discovery remained outstanding.   \n No  response  was  filed  by  the  Claimant  so an appropriate  notice  of  a  Motion  to \nDismiss  hearing  was  provided  to  the  Claimant  setting  the  hearing  for May  6,  2025,  at \n10:00 a.m., in Little Rock, Arkansas.   \n A  hearing  was  held  on May  6, 2025, and  the  claimant failed  to  appear.    The \nRespondents were represented by Guy Alton Wade, who requested that the matter be \ndismissed pursuant to Rule 099.13 of the Arkansas Workers’ Compensation Commission \nand Ark. Code Ann. 11-9-702.    \nORDER \n Pursuant to the above statement of the case, as well as the documents entered \ninto the evidentiary record and statements by the attorney for the Respondents, there is \nno alternative but to grant the Motion to Dismiss without prejudice pursuant to Rule 099.13 \nof the Arkansas Workers’ Compensation Commission and Ark. Code Ann. 11-9-702.   \nIT IS SO ORDERED. \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":2861,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H407233 ADRIAN L. ADAMS, EMPLOYEE CLAIMANT CAL ARK INTERNATIONAL, INC. EMPLOYER RESPONDENT SAFETY FIRST INS. CO./ CCMSI RESPONDENT OPINION AND ORDER DATED MAY 13, 2025 The Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas, wa...","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:40.090Z"},{"id":"alj-H404302-2025-05-12","awccNumber":"H404302","decisionDate":"2025-05-12","decisionYear":2025,"opinionType":"alj","claimantName":"John Hudson","employerName":"City Of Stuttgart","title":"HUDSON VS. CITY OF STUTTGART AWCC# H404302 May 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HUDSON_JOHN_H404302_20250512.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HUDSON_JOHN_H404302_20250512.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404302 \n \n \nJOHN O. HUDSON \nEMPLOYEE                                                                                                              CLAIMANT \n \nCITY OF STUTTGART, \nEMPLOYER                                                                                                         RESPONDENT  \n \nARKANSAS MUNICIPAL LEAGUE \nWORKERS’ COMPENSATION TRUST/ \nARK. MUNICIPAL LEAGUE, \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED MAY 12, 2025 \n \nHearing conducted on Thursday, May  8, 2025, before the Arkansas Workers’ Compensation \nCommission  (the Commission),  Administrative  Law  Judge (ALJ)  Mike  Pickens,  in El  Dorado, \nUnion County, Arkansas. \n \nThe  claimant,  Mr. John  O.  Hudson,  pro  se,  of Fordyce, Dallas County,  Arkansas, failed  and/or \nrefused to appear at the hearing.  \n \nThe  respondent  was represented  by  the  Honorable Mary  K.  Edwards, Ark.  Municipal  League, \nLittle Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Thursday, May 8, 2025, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark. Code  Ann. §  11-9-702(a)(4)  (2025 Lexis \nReplacement) and Commission Rule 099.13 (2025 Lexis Replacement). \n       The  claimant herein  previously was represented  by  counsel, Mark  Alan  Peoples.  By  Full \nCommission order filed October 18, 2024, the Full Commission granted Mr. Peoples’s request to \nwithdraw as the claimant’s counsel. On March 6, 2025, the respondents filed a motion to dismiss \nfor failure to prosecute (MTD) with the Commission. (Respondents’ Exhibit 1 at 2-3).  \n\nJohn O. Hudson, AWCC No. H404302 \n2 \n \n        In compliance with the applicable law the claimant was provided due and legal notice of the \nrespondents’ MTD as well as the date, time, and location of the subject hearing. The claimant did \nnot respond to the respondents’ motion in any way, and he failed and/or refused to appear at the \nsubject hearing. (RX1). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ MTD. \nRather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the \nevidence introduced at the hearing and contained in the record conclusively reveals the claimant \nhas failed and/or refused to either request a hearing within the last six (6) months, and he has taken \nno steps whatsoever to prosecute this claim. \n        Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the applicable  law, the \nrepresentations  of credible counsel, and  other relevant matters  of  record,  I  hereby  make  the \nfollowing: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed due and legal notice of the respondents’ MTD without prejudice \nfiled with the Commission on March 6, 2025, as well as notice of the date, time, and place \nof  the  subject  hearing, the  claimant failed  and/or  refused  to  respond  in  any  way  to  the \nrespondents’ MTD, and he failed and/or refused  to appear at the hearing. Therefore, the \nclaimant is deemed to have waived his right to a hearing on the respondents’ MTD. \n\nJohn O. Hudson, AWCC No. H404302 \n3 \n \n \n3. The claimant has not requested a hearing within the last six (6) months, and he has failed \nand/or refused to prosecute this claim. \n \n4. The respondents’ MTD without  prejudice  filed March  6,  2025,  should be  and  hereby is \nGRANTED;  and  this  claim is  dismissed  without  prejudice  to  its refiling  pursuant  to  the \ndeadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and Commission \nRule 099.13. \n \n        This opinion shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n\nJohn O. Hudson, AWCC No. H404302 \n4","textLength":5299,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404302 JOHN O. HUDSON EMPLOYEE CLAIMANT CITY OF STUTTGART, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE WORKERS’ COMPENSATION TRUST/ ARK. MUNICIPAL LEAGUE, CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:33.855Z"},{"id":"alj-H404671-2025-05-12","awccNumber":"H404671","decisionDate":"2025-05-12","decisionYear":2025,"opinionType":"alj","claimantName":"Michael Toska","employerName":"City Of Hot Springs","title":"TOSKA VS. CITY OF HOT SPRINGS AWCC# H404671 May 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TOSKA_MICHAEL_H404671_20250512.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TOSKA_MICHAEL_H404671_20250512.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404671 \n \n \nMICHAEL J. TOSKA, \nEMPLOYEE                                                                                                              CLAIMANT \n \nCITY OF HOT SPRINGS, \nEMPLOYER                                                                                                         RESPONDENT  \n \nARKANSAS MUNICIPAL LEAGUE \nWORKERS’ COMPENSATION PROGRAM/ \nARK. MUNICIPAL LEAGUE, \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                     \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED MAY 12, 2025 \n \nHearing conducted on Friday, May 9, 2025, before  the  Arkansas  Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Hot Springs, \nGarland County, Arkansas. \n \nThe  claimant,  Mr. Michael  J.  Toska,  pro  se,  of Hot  Springs,  Garland County,  Arkansas, failed \nand/or refused to appear at the hearing.  \n \nThe  respondent was represented  by  the  Honorable Mary  K.  Edwards, Ark.  Municipal  League, \nLittle Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Friday, May 9, 2025, to determine whether this claim should be \ndismissed  for  lack  of  prosecution  pursuant  to Ark. Code  Ann. §  11-9-702(a)(4)  (2025 Lexis \nReplacement) and Commission Rule 099.13 (2025 Lexis Replacement). \n       The  claimant herein  previously was represented  by  counsel, Mark  Alan  Peoples.  By  Full \nCommission order filed October 20, 2024, the Full Commission granted Mr. Peoples’s request to \nwithdraw as the claimant’s counsel. On March 6, 2025, the respondents filed a motion to dismiss \nfor failure to prosecute (MTD) with the Commission. (Respondent’s Exhibit 1 at 2-3).  \n\nMichael J. Toska, AWCC No. H404302 \n2 \n \n        In compliance with the applicable law the claimant was provided due and legal notice of the \nrespondents’ MTD as well as the date, time, and location of the subject hearing, which he received \non  March  11,  2025.  (Commission  Exhibit  1;  RX1  at  4-7). The  claimant  did  not  respond to  the \nrespondents’ motion in any way, and he failed and/or refused to appear at the subject hearing. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ MTD. \nRather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the \nevidence introduced at the hearing and contained in the record conclusively reveals the claimant \nhas failed and/or refused to either request a hearing within the last six (6) months, and he has taken \nno steps whatsoever to prosecute this claim. \n        Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the applicable  law, the \nrepresentations  of credible counsel, and  other relevant matters  of  record,  I  hereby  make  the \nfollowing: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed due and legal notice of the respondents’ MTD without prejudice \nfiled with the Commission on March 6, 2025, as well as notice of the date, time, and place \nof  the  subject  hearing, the  claimant failed  and/or  refused  to  respond  in  any  way  to  the \nrespondents’ MTD, and he failed and/or refused  to appear at the hearing. Therefore, the \nclaimant is deemed to have waived his right to a hearing on the respondents’ MTD. \n\nMichael J. Toska, AWCC No. H404302 \n3 \n \n \n3. The claimant has not requested a hearing within the last six (6) months, and he has failed \nand/or refused to prosecute this claim. \n \n4. The respondents’ MTD without  prejudice  filed March  6,  2025,  should be  and  hereby is \nGRANTED;  and  this  claim is  dismissed  without  prejudice  to  its  refiling  pursuant  to  the \ndeadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and Commission \nRule 099.13. \n \n        This opinion shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nMichael J. Toska, AWCC No. H404302 \n4","textLength":5395,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404671 MICHAEL J. TOSKA, EMPLOYEE CLAIMANT CITY OF HOT SPRINGS, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM/ ARK. MUNICIPAL LEAGUE, CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:35.934Z"},{"id":"alj-H306170-2025-05-12","awccNumber":"H306170","decisionDate":"2025-05-12","decisionYear":2025,"opinionType":"alj","claimantName":"Roshandra Ray","employerName":"Hino Motors Mfg. USA, Inc","title":"RAY VS. HINO MOTORS MFG. USA, INC. AWCC# H306170 May 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RAY_ROSHANDRA_H306170_20250512.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RAY_ROSHANDRA_H306170_20250512.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                        CLAIM NO.: H306170 \nROSHANDRA RAY,  \nEMPLOYEE                                                                                                             CLAIMANT \n \nHINO MOTORS MFG. USA, INC.,  \nEMPLOYER                                                                                                         RESPONDENT \n \nFIRST LIBERTY INSURANCE CORP., \nINSURANCE CARRIER                                                                                    RESPONDENT \n \n \n         OPINION FILED MAY 12, 2025     \n        \nHearing before Administrative Law Judge Chandra L. Black on February 14, 2025, in Forrest City, \nSt. Francis County, Arkansas. \n \nClaimant, unrepresented/pro se. \n \nRespondents represented  by the  Honorable  Zachary  F.  Ryburn, Attorney at  Law,  Little  Rock, \nArkansas. \n \n \nStatement of the Case \nThe above-captioned claim comes before the Commission for a full hearing on the merits.   \nSaid hearing was held on February 14, 2025, in Forrest City, Arkansas. A prehearing telephone \nconference was conducted in this matter by Chief Administrative Law Judge O. Milton Fine II, on \nDecember 16, 2024.  Chief Judge Fine entered a Prehearing Order in this matter on that same day.  \nA  copy  of  said order and  the parties’ prehearing  information filings have  been  marked as \nCommission’s Exhibit 1 and made a part of the record without objection.   \nStipulations \nDuring the telephone conference, the parties agreed to the following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n\nRAY - H306170 \n \n2 \n \n2. That  the  employee-employer-carrier  relationship existed at  all  relevant  times \nincluding on or about August 9, 2023. \n3. The Respondents have controverted this claim in its entirety.  \n4. All other issues are reserved under the Arkansas Workers' Compensation Act.  \nIssues \nBy  agreement  of  the  parties,  the  issues  to be  litigated  at  the  hearing  are  limited  to  the \nfollowing: \n1. Whether the Claimant sustained a compensable injury to her left hand by a specific \nincident injury on August 9, 2023.       \n2. Whether the Claimant is entitled to reasonable and necessary medical treatment for \nher alleged injury.    \nContentions \n The respective contentions of the parties are as follows: \nClaimant:  \nThe Claimant contends that she sustained a compensable injury to her left hand when it got  \nin a machine at work on August 9, 2023.  She further contends that she is entitled to reasonable \nand necessary medical treatment for her alleged injury.    \nRespondents: \n The Respondents contend that the Claimant did not sustain a compensable injury.  At the \nhearing, the Respondents’ attorney further contended that there are no objective medical findings \nof an injury. \n \n \n\nRAY - H306170 \n \n3 \n \n                       FINDINGS OF FACT AND CONCLUSIONS OF LAW \nAfter reviewing the record as a whole, including medical reports, documentary evidence, \nand all other matters properly before the Commission, and having had an opportunity to hear the \ntestimony of the witness and observe her demeanor, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.      The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n          \nclaim. \n \n2.      The stipulations set forth above are hereby accepted. \n \n3.      The Claimant did not prove she sustained an accidental injury to her left hand   \n      \n                       on August 9, 2023.  Specifically, the Claimant did not establish a compensable  \n \n            injury to her left hand by medical evidence supported by objective findings.   \n \n                       Nor can I find in the record a reasonable inference that would lead me to conclude  \n \n                       the Claimant was prescribed medication to treat objective medical findings to her  \n \n                       left hand.           \n         \n            4.       This claim for a left hand injury is hereby respectfully denied and dismissed  \n          \n          entirely.      \n \nSummary of Evidence \nMs. Roshandra Ray (referred to herein as the (“Claimant”) testified during the hearing.  \n            In addition to the Prehearing Order discussed above, admitted into evidence in this case \nwere the following: Claimant’s Exhibit 1, a compilation of her medical records consisting of thirty-\nfour (34) numbered pages; and Respondents’ Exhibit 1 includes a page of a payout history for the \nclaim.    \n                                                 \n\nRAY - H306170 \n \n4 \n \n        Testimony \n   \nThe Claimant, age 44, testified during the hearing.  She confirmed that in August 2023, she \nworked for Hino Motors Manufacturing, the respondent-employer in this matter.  According to the \nClaimant, she sustained an accidental injury to her left hand on August 9, 2023, during and in the \ncourse of her employment with the respondent-employer while operating a machine.   \nSpecifically, the Claimant testified on direct examination: \nQ     Okay.  Tell me briefly what happened on August 9, 2023. \n \nA     I was working on rear axle, and  -- \n \nQ     Rear axle. \n \nA     Yes, ma’am. \n \nQ(sic) Okay. And I had spoke with the team lead, and I had specifically told him  \nThat I wasn’t trained properly on that position that he switched me over to.  And as \nI was working the process, the shelf things clamped down on my left hand and my \nhand instantly swolled (sic) up.  So I had told – what’s his name – -  Ramone Beck \nwhat happened to my hand, and I ended up had to get transferred to West Memphis \nHospital ‘cause my hand was swollen, and they said it was a contusion, I think.      \n \nShe testified that her accidental injury occurred around 1:00 a.m. on the morning of August \n9.  The Claimant further explained that after she reported her injury to her supervisor, he directed \nher to go the nurse’s station.  At that time, the Claimant testified that the safety person wrapped \nher hand in a package of ice and told her to go the hospital.   \nNext,  the  Claimant sought  medical  attention  for  her  hand  from  the  hospital in West \nMemphis, Arkansas.  According to the Claimant, she drove herself to the hospital.  She testified \nthat at the hospital, they gave her a shot.  They also performed x-rays on her left hand and put her \narm in a splint. The Claimant testified that the doctor at the hospital told her to follow up for hand \nat the Urgent Care Clinic, and she did so.  According to the Claimant, she was taken off work by \n\nRAY - H306170 \n \n5 \n \nthe Urgent Care Clinic.  The Claimant confirmed that she reported to management that she had \nbeen  taken  off  work because  she  continued  to  have  problems  with  her  hand.   She specifically \ntestified that she made the plant manager aware of her absence.  According to the Claimant, when \nshe reported for work, management sent her home because they did not have any light-duty work \navailable.     \nThe Claimant testified that she underwent three (3) weeks of physical therapy in Forrest \nCity, Arkansas.  However, she maintained that after undergoing the therapy sessions, she continued \nto experience problems with her left hand, so she tried to go back to therapy on her own. At that \ntime, the Claimant described problems with her hand that included symptoms of a pinched nerve, \nalong with other difficulties, such as stiffness, swelling and limited range of motion.  Specifically, \nthe  Claimant testified that  she primarily had  problems  with  her  index  finger.    According to the \nClaimant, she had difficulties with it swelling, and constantly bending over, causing her not to be \nable to hold anything.   Per the Claimant, she also had problems with the top of her middle finger.   \nShe denied undergoing any other treatment after her second round of physical therapy.  The \nClaimant testified that she did not have the money, group health insurance, or Medicaid to pay for \nany additional medical treatment for her hand.  The Claimant essentially testified that she sought \ntreatment from her primary care physician/PCP.  Per the Claimant, her PCP prescribed medication \nfor her  hand,  which  included  a muscle  relaxer\n1\n to  help relieve her  symptoms.    The  Claimant \ntestified that she occasionally has problems with her hand.  According to the Claimant, her last \ntreatment for her hand was when she went to the Urgent Care Clinic, in Wynne, Arkansas.  The \nClaimant testified that Dr. Ryan gave her some medicine for her hand.  At that time, the Claimant \n \n1\n Although the Claimant maintained she was prescribed a muscle relaxer, the medical records of evidence \ndoes not demonstrate that she was prescribed a muscle relaxer.      \n\nRAY - H306170 \n \n6 \n \nmaintained that her hand was swollen.  Per the Claimant, they told her if she continued to have \nproblems with her hand, she should return to the clinic.                     \n   The Claimant testified that she left her employment with Hino Motors in January 2024.  \nAccording to the Claimant, on the day that she returned to work, she told her supervisor she was \nleaving to go home because she was still bothered with her arm.  However, the Claimant testified \nthat when she returned to work the following day, she was called over to the other building and a \nwoman spoke with her and told her they had to let her go.  She was unable to recall the exact date \nthat this happened.  At that time, the Claimant testified that she continued to have problems with \nher left hand.   \n Under continued direct examination, the Claimant explained: \nQ     Okay, as we sit her today, what problems are you having with your left hand?  \n \nA     Every now and then, my hand will swell up or it’s like a tingling feeling in my \nhand, and I have to hold my hand down like I’m not getting good blood circulation \nor something in my hand. \n \nQ     Okay.  Do you have swelling today in your hand? \n \nA     No, ma’am, I do not. \n \nQ     So as we sit here today, the only problem that you’re having with your hand is \nthat  you think  you  have  poor  circulation  and  you  get  a  tingling  feeling  in  your \nfingers, your entire hand, or what? \n \nA     In my entire hand.  They told me it was damaged nerve.  \n \nThe  Claimant maintained that  she  was  told by  the  doctor  in Wynne  that she  has  nerve \ndamage to her hand.  However, she admitted that she does not have a diagnostic test showing that \nshe has nerve damage to her hand.  The Claimant testified that currently she takes Tramadol, a \nmuscle relaxer, and Hydrocodone for her hand.  She maintained that her primary care physician, \n\nRAY - H306170 \n \n7 \n \nDenise Parnell, prescribed these medications for her left hand symptoms.  However, there are no \nmedical records confirming that the Claimant has been prescribed these medications.   \n Prior to her work incident at Hino, the Claimant testified that she did not have any problems \nwith her left hand.  Currently, the Claimant works at Love’s Truck Stop.  She started working for \nLove’s in March 2024.  The Claimant works in the restaurant, as a cook.  She works thirty-five \n(35) to forty (40) hours per week.  \n Next,  the Claimant  was  asked about  the medical treatment being recommended  for  her \nhand.  Specifically, the Claimant stated that she is asking for continued medical treatment under \nthe care of a new doctor.  According to the Claimant, she is currently under the care of Dr. Barrett, \nat a clinic in Jonesboro.  She was referred to him by her primary care physician.  Per the Claimant, \nshe is undergoing occupational therapy in Jonesboro.  The Claimant denied having any subsequent \naccidents or injuries to her left hand since her incident with Hino.  She further denied having any \nhand intensive hobbies.  However, the Claimant confirmed that she can perform her job duties at \nLove’s.                  \n The Claimant denied that Hino paid for any of her medical treatment for her left hand.  She \nmaintained that she is receiving a bill from Forrest Center Medical Center for her ER visit.  Per \nthe  Claimant,  she also continues  to  receive  bills  from  Urgent  Care.   She  confirmed  that  her \nsupervisor  told  her  to  go  to  the  ER.    The  Claimant  denied  having  had  any  prior  workers’ \ncompensation claims.   \n On cross-examination, the Claimant was asked by the Respondents’ attorney to describe \nthe machine and what happened.  \nA     Yes sir.  As I was working on a shelf.  I was doing the parts, and after  -- well, \nI talked to the supervisor there.  I didn’t know the process so, as he told me, I had \nto go over there so, as I was doing the shelf, and thing just clamps on  --  clamped \non my hand, the two shelf things clamped on my hand. \n\nRAY - H306170 \n \n8 \n \nQ    Okay.  And is --  what is his machine? What is the clamp process? \n \nA    We was putting a, you know, shelf down and one line to the other line.  And as \nI was pulling the shelf down an  - and that’s when it rolled off the --  I guess the \nbelt thing and it clamped down on my hand. \n \n Q     Okay.  And then that clamp, did it -- was that a fast process?  Did it clamp \nand then let go, or how did it work? \n \nA        No, it clamped.  It was a fast process, and it clamped on my hand as I was  -\n-  you know, as it was coming down the belt. \n I can’t just really explain how it is, but it’s  -- it’s two shelves, heavy shelf \non rear axle.  And as you pushing the things down, it go through one machine on \ndown the line.  \n \n The Claimant confirmed that she was working exclusively on rear axles when her injury \noccurred.   She admitted that she underwent a CT scan of her hand, and it was negative for any \nfindings.   \n On further examination, the Claimant admitted that she reported tinging and numbness in \nboth arms and fingers, when she sought treatment from the ER Department staff at Forrest Center \nMedical Center.   \nShe testified that there were three (3) witnesses to her August 9 accident, namely, Jacresha \nSmith, May-Bay Simmons, and Aaron Williams.  The Claimant confirmed that after being directed \nby her supervisor to go to the hospital, she went to the West Memphis Hospital.  The Claimant  \ntestified  that she  went  to  the  hospital  in  Forrest  City  about  a  month  later  because  she  was  still \nhurting.  This visit occurred on September 14.  She testified that she wore a splint on her hand for \nabout a month.  The Claimant admitted that she reported that she sustained a crush injury to her \nleft hand.   The Claimant maintained that after her injury, she had bruising on the inside of her \nhand.  \n The Respondents’ attorney introduced into evidence a payment summary.  This document \nshows  that  they  paid  for  the  physical  therapy,  as  well  as  the  Baptist  Hospital  and  Mid-South \n\nRAY - H306170 \n \n9 \n \nImaging  bills.    However,  after  the  CT  scan showed  no  objective  finding  of  an injury,  the \nrespondent-carrier stopped payment, and controverted the claim in its entirety.              \n  Medical Evidence \n On  September  14,  2023,  the Claimant  sought  medical  treatment  from Emergency \nDepartment/ED at Baptist  Memorial  Hospital- Crittenden.  Ms.  Ray presented to  the  emergency \ncenter with  a  left-hand  injury.    Per  these  notes, apparently the Claimant’s left  hand  got  caught \nbetween two shafts at work.  No other injuries were appreciated.  On physical examination, the \nClaimant had  minimal  discomfort  with  palpation  to  the  dorsal  aspect  of  her  hand,  but  no  open \nfractures, open wounds, bruises, or hematomas were noted.  The Claimant’s left hand was placed \nin a splint for comfort measures, and she was discharged home, with instructions to follow up with \nher family physician the next day.  She was given a prescription for Naproxen to take as prescribed \nand  instructed  to  apply  ice  for  swelling  as  needed.   Of  note, the  Claimant  did  not  complain  of \nswelling, and nor was any swelling noted on physical examination of her hand.        \n There is a Registration Admission sheet from Forrest City Medical Center, which has been \nintroduced into evidence.  This report was generated on November 6, 2023.  At that time, according \nto this report, the Claimant’s chief complaint was pain in her left hand.  As a result, on that same \nday, the Claimant underwent a CT of the left hand due to a clinical indication of pain in her left \nhand, with an impression of “No acute osseous abnormality of the left hand.”   \n On December 8, 2023, the Claimant sought medical treatment from Forrest City Medical \nCenter Emergency Department due to numbness and tingling in both arms and fingers.  The \nClaimant was evaluated by Dr. Toby Anderson.  He assessed the Claimant with “Radiculopathy, \ncervical region, paresthesia of skin, headache, unspecified.”   She underwent a CT scan of the \nhead, and CT of cervical spine without contrast due to worsening headache and bilateral \n\nRAY - H306170 \n \n10 \n \nparesthesia, with an impression of: “No acute intracranial abnormality. No acute cervical spine \nfracture or significant subluxation.”     \n       Adjudication \nCompensability     \nThe Claimant contends  that  she  sustained  a  compensable  injury  to  her  left hand/fingers \nwhile working for the respondent-employer on August 9, 2023.  The Respondents contend that the \nClaimant did not sustain an injury to her left hand because there are no objective medical findings \nfor an injury to her left hand.  \nThe  Respondents  initially  accepted  this  as  a  compensable  injury  for  an  injury  to  the \nClaimant’s left hand.  However, after the Claimant underwent a CT of the left hand, which revealed \nno abnormities, they controverted the claim in its entirety.      \n\"Compensable  injury\"  means  an  accidental  injury  causing  physical  harm  to  the  body, \narising out of and in the course of employment and which requires medical services or results in \ndisability or death.  Ark. Code Ann. §11-9-102(4)(A)(i) (Repl. 2012).  A compensable injury must \nbe  established  by  medical  evidence  supported  by  objective  findings.  Ark.  Code  Ann.  § \n11-9-102(4)(D) (Repl. 2012).  Objective findings are those findings which cannot come under the \nvoluntary control of the patient. Ark. Code Ann. §11-9-102(16)(A)(i) (Repl. 2012).   \nThe  Claimant  must  prove  by  a  preponderance  of  the  evidence  that she  sustained  a \ncompensable  injury.  Ark.  Code  Ann.  §  11-9-102(4)  (E)(i) (Repl. 2012).  Preponderance  of  the \nevidence means evidence having greater weight or convincing force. Metropolitan Nat’l Bank v. \nLa Sher Oil Co., 81 Ark. App. 269, 101 S.W. 3d 252 (2003).     \nAfter  reviewing  the  evidence  in  this  case  impartially,  without  giving  the  benefit  of  the \ndoubt to either party, I find that the Claimant failed to prove by medical evidence supported by \n\nRAY - H306170 \n \n11 \n \nobjective  findings that  she    injured  her  left  hand/fingers  on  August  9,  2023,  while  working  for \nHino Motors Manufacturing USA, Incorporated.   \nTo meet  the  requirements  of  a  compensable  injury, the  Claimant  must prove by a \npreponderance of the evidence, every element required by law for establishing compensability.  If \nthe  Claimant does  not prove by  a  preponderance  of  the  evidence,  any  of  the  requirements  for \nproving compensability,  compensation  must  be  denied.    Hence,  a  compensable  injury has  not \noccurred.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W. 2d 876 (1997). \n The Claimant was a very pleasant person.  She gave a very complete and correct account \nof  her  accidental  injury. It is undisputed that the Claimant’s left hand was caught in a machine \nwhile performing her employment duties for Hino.  No testimony was presented to the contrary by \nthe Respondents.   According to the Claimant, she injured two fingers on her left hand, when her \nhand was struck by a brake assembly, when she reached for a part.  The Claimant testified that she \nreported  her  injury  to  her  supervisor.   Her  testimony proves that management  instructed  her  to \nseek medical treatment, which she did do.   \n   However, the Claimant has failed to present any medical evidence supported by objective \nfindings to establish an injury to her left hand.  In fact, the first medical record of evidence is dated \nSeptember 14, 2023, more than a month after the Claimant’s incident at work.  The aforementioned \nmedical record and all the other medical evidence are devoid of a resulting injury causing internal \nor  physical  injury  harm  to the Claimant’s left hand/ fingers.   Specifically,  the  x-rays of  the \nClaimant’s left hand do not reveal any objective medical findings of any physical or internal harm \nto her hand.  Also, a CT scan of her left hand was devoid of any objective medical findings.  None \nof the medications in the record are prescribed for any objective medical finding.  Nor can I find a \nreasonable inference in the present matter that the Claimant was prescribed medication to treat any \n\nRAY - H306170 \n \n12 \n \nobjective medical findings in her left hand.  Moreover, there are no reports of spasms, swelling, \necchymosis, bruising or any objective medical findings.     \n     In sum, the Claimant has failed to provide medical evidence supported by measurable \nobjective findings proving a specific incident injury to her left hand/fingers on August 9, 2023.  \nUnder these circumstances, based on the record before me, I am compelled to find that the \nClaimant did not prove by a preponderance of the evidence all the statutory requirements for \nestablishing compensability for a left hand injury on August 9, 2023.    \nAs such, this claim for a left hand injury must be, and is hereby respectfully denied and \ndismissed in its entirety.  Accordingly, the remaining issue relating to medical benefits in this \nmatter have been rendered moot and not discussed herein this opinion.   \nHowever, it is noteworthy that based on my review of the payout history for this claim, \nthe Respondents have paid for all the medical treatment that the Claimant received for her left \nhand at the direction of management.   \n                ORDER \nThe Claimant failed to prove that she sustained a compensable injury to her left hand on \non August 9, 2023, by way of objective medical findings.  \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE","textLength":22701,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H306170 ROSHANDRA RAY, EMPLOYEE CLAIMANT HINO MOTORS MFG. USA, INC., EMPLOYER RESPONDENT FIRST LIBERTY INSURANCE CORP., INSURANCE CARRIER RESPONDENT OPINION FILED MAY 12, 2025 Hearing before Administrative Law Judge Chandra L. Black on February 14, 2025, i...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["back","cervical","fracture"],"fetchedAt":"2026-05-19T22:40:38.025Z"},{"id":"full_commission-G907099-2025-05-09","awccNumber":"G907099","decisionDate":"2025-05-09","decisionYear":2025,"opinionType":"full_commission","claimantName":"Jeffery Lovelis","employerName":"Arkansas State Police","title":"LOVELIS VS. ARKANSAS STATE POLICE AWCC# G907099 May 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Lovelis_Jeffery_G907099_20250509.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Lovelis_Jeffery_G907099_20250509.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  G907099 \n \nJEFFERY A. LOVELIS, EMPLOYEE  CLAIMANT \n \nARKANSAS STATE POLICE, EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED MAY 9, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE STEVEN R. McNEELY, \nAttorney at Law, Jacksonville, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed January 14, 2025.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The  Arkansas  Workers’  Compensation  Commission  has \njurisdiction over this claim.  \n \n2. That an employer/employee relationship existed on September 19, \n2019,  when  the  claimant  sustained  a  compensable  injury  to  his \nneck which was accepted as compensable by the respondent. \n \n3. That the claimant has failed to satisfy the required burden of proof \nto prove by a preponderance of the evidence that he is entitled to \n\n \nLOVELIS - G907099  2\n  \n \n \nthe additional medical  treatment requested, specifically a return to \nthe treating physician, Dr. James Suen or another IME in Florida, \nwith  said  requested  treatment  being  found  to  not  be  reasonable \nand necessary. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's January 14, \n2025 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2479,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G907099 JEFFERY A. LOVELIS, EMPLOYEE CLAIMANT ARKANSAS STATE POLICE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 9, 2025 Upon review before the FULL COMMISSION in Lit...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T22:29:44.289Z"},{"id":"alj-H304290-2025-05-08","awccNumber":"H304290","decisionDate":"2025-05-08","decisionYear":2025,"opinionType":"alj","claimantName":"Alan Keune","employerName":"Granite Mtn. Quarries 1","title":"KEUNE (DEC’D) VS. GRANITE MTN. QUARRIES 1 AWCC# H304290 May 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Keune_Alan_H304290_20250508.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Keune_Alan_H304290_20250508.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H304290 \n \n \nALAN L. KEUNE, DEC’D, EMPLOYEE CLAIMANT \n \nGRANITE MTN. QUARRIES 1, \n EMPLOYER RESPONDENT \n \nACIG INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MAY 8, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 7, 2025, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant through his widow, Holly Keune, pro se, not appearing. \n \nRespondents represented  by  Ms. Autumn  Clark  Boatright,  Attorney  at  Law, Pine \nBluff, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on May 7, 2025, in Little \nRock, Arkansas.  Testimony was taken from Claimant’s widow, Holly Keune, who \nappeared  on  his  behalf.   Admitted  into  evidence  was Commission  Exhibit  1, \nforms, pleadings, and correspondence  related  to  this  claim,  consisting  of 16 \npages. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed on July  3,  2023,  Claimant \npurportedly suffered an injury to his head  and  back while at  work on  June 29, \n2023,  when  a  truck  struck  a  pile  of  boulders.  According  to the  Form  AR-2 that \n\nKEUNE – H304290 \n \n2 \n \nwas also filed on July 14, 2023, Respondents controverted the claim in its entirety, \nstating: \nThis claim was turned in as a head/back claim due to [a] haul truck \nrunning into a mound of boulders.  Mr. Keune then fell ill the night \nof  6/30/23  and  he  was  taken  to  the  hospital.    He  passed  away  on \n7/6/23.  Our position is that Mr. Keune’s death is not the result of \nthis incident. \n \nNo Form AR-C was filed. \n The  next  event  in  this  matter  took  place  on  November  6,  2024,  when \nRespondents  filed  the  instant  Motion  to  Dismiss.    Therein,  they  represented  that \nClaimant  propounded  discovery  to  them  on  September  23,  2023;  that  they \nresponded  thereto  on  October  11,  2023,  and  that  no  activity  on  the claim has \noccurred since that time.  They requested a dismissal under Ark. Code Ann. § 11-\n9-702 (Repl. 2012) and AWCC 099.13. \n On  November  7,  2024,  the claim was  assigned  to  Administrative  Law \nJudge  JayO.  Howe  to  litigate.    His  office  wrote  Claimant  on  November  8,  2025, \nasking  for  a  response  to  the  motion  within  20  days.    The letter  was  sent  by  first \nclass  and  certified  mail  to  the Maumelle,  Arkansas address  listed  for  him  in  the \nfile.   “Holly Keune” signed for the certified  letter  on November  19, 2024, and the \nfirst-class letter was not returned. \n\nKEUNE – H304290 \n \n3 \n \n Mrs. Keune wrote the Commission on November 18, 2024: \nTo Whom It May Concern: \n \nThis  letter  serves  as  a  formal  response  opposing  the  motion  to \ndismiss  and  respectfully  requests  that  a  hearing  be  scheduled  for \nconsideration in the above-captioned Workers’ Compensation case. \n \nRespectfully, \n \n/s/ Holly Keune \n \nHolly Keune \nWidow of Alan L. Keune \n \n Based  on  this  objection,  Judge  Howe  took  the  Motion  to  Dismiss  under \nadvisement  and  issued preliminary  notices  and prehearing  questionnaires  to  the \nparties  on  November  25,  2024.  Respondents  filed  their  Preliminary  Notice  on \nDecember 10, 2024.  However, Mrs. Keune never filed a response.  On February \n5, 2025, the judge sent a letter to her by first-class mail, warning her that if she did \nnot   file   her   preliminary   notice   and   prehearing   questionnaire   responses   by \nFebruary 24, 2025, a hearing would be scheduled on the Motion to Dismiss.  This \ndeadline came and went without a response from Mrs. Keune. \n On March 7, 2025, a hearing on the Motion to Dismiss was scheduled for \nMay 7,  2025,  at  1:00 p.m.  at  the Commission  in  Little  Rock.    The Notice of \nHearing was  sent  to Mrs.  Keune via  first-class  and  certified  mail  to  the  same \naddress  as was  used  successfully before.   Mrs.  Keune  signed  for the  certified \nletter on March 18, 2025, while the first-class letter was not returned. \n\nKEUNE – H304290 \n \n4 \n \n The hearing on the Motion to Dismiss proceeded as scheduled before the \nundersigned.  Again, Claimant through Mrs. Keune failed to appear at the hearing.  \nBut  Respondents  appeared  through  counsel  and  argued  for  dismissal  under  the \nforegoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  documents  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe testimony of the hearing witness and to observe her demeanor, I hereby make \nthe following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012) \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n3. Respondents  have not proven  by  a preponderance  of the  evidence \nthat  Claimant  has  failed  to  prosecute  this  claim under AWCC  R. \n099.13. \n4. Respondents  have not  proven  by  a preponderance  of the  evidence \nthat  this  claim  should  be  dismissed  under  Ark.  Code  Ann.  §  11-9-\n702(a)(4) (Repl. 2012). \n\nKEUNE – H304290 \n \n5 \n \n5. Respondents  have not  proven  by  a preponderance  of the  evidence \nthat  this  claim  should  be  dismissed  under  Ark.  Code  Ann.  §  11-9-\n702(d) (Repl. 2012). \n6. The Motion to Dismiss is hereby denied. \n7. Claimant through his widow has requested a hearing on the issue of \nhis estate’s entitlement to initial benefits. \n8. This claim will proceed to a hearing on the merits. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996).  In turn, Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) read: \n(4) If within six (6) months after the filing of a claim for compensation \nno  bona  fide  request  for  a  hearing  has  been  made  with  respect  to \nthe  claim,  the  claim may,  upon  motion  and  after  hearing,  be \ndismissed   without   prejudice   to   the   refiling   of   the   claim   within \nlimitation periods specified in subdivisions (a)(1)-(3) of this section. \n \n. . . \n \n(d)  If  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof  the  claim  within  limitation  periods  specified  in  subsection  (b)  of \nthis section. \n\nKEUNE – H304290 \n \n6 \n \n(Emphasis   added)    Under   Ark.   Code   Ann.   §   11-9-705(a)(3)   (Repl.   2012), \nRespondents  must  prove  by  a  preponderance  of  the  evidence  that  dismissal \nshould be granted.  The standard “preponderance of the evidence” means the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n No  Form  AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing  a \nformal  claim.    While  a  Form  AR-1  was  filed  in  this  case,  that  does  not  suffice  to \ninstigate a claim.  I recognize, however, that other means exist to file a claim for \ninitial benefits other than a Form AR-C.  In Cook v. Southwestern Bell Telephone \nCompany,  21  Ark.  App.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of \nAppeals  discussed  the  minimum  requirements  necessary  for  correspondence  to \nthe Commission to constitute a claim for additional compensation for the purpose \nof  tolling  the  applicable  Statute  of  Limitations.    There,  the  court  held  that  an \nattorney's  correspondence  notifying  the  Commission  that he  has  been employed \nto assist a claimant in connection with unpaid benefits is sufficient to state a claim \nfor  additional  compensation  where  the  correspondence  also  lists  the  claimant's \nname, the employer's name and the Commission file number.  See also Garrett v. \nSears  Roebuck  and  Company,  43  Ark.  App.  37,  858  S.W.2d  146  (1993).    My \nreview of the Commission’s file discloses a document sufficient to constitute a \n\nKEUNE – H304290 \n \n7 \n \nclaim  for  initial  benefits  under Cook, supra.    That  document  is Mrs.  Keune’s \nNovember 18, 2024, letter to the Commission—discussed above. \n A claimant’s testimony is never considered uncontroverted.  Nix  v. Wilson \nWorld  Hotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting  evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n Mrs.  Keune admitted  under  oath  that  she  received  the  preliminary  notice \nand prehearing questionnaire by mail from Judge Howe’s office.  Asked to explain \nwhy  she  did  not  comply  with  the  deadlines  he  had  set  for  her  completion  of \nresponses  to  these  documents,  she  responded  that  she  attempted  without \nsuccess  to  hire  an  attorney;  and  thereafter,  she  had  simply  forgotten  about  the \nmatter.    As  for  her  continued  failure  to  respond  after  Judge  Howe  sent  her  the \nwarning on February 5, 2025, she testified that she never received it—despite the \nfact that it was correctly addressed.  Claimant requested a hearing on her claim, \nin the event that it is not dismissed. \n\nKEUNE – H304290 \n \n8 \n \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  motion  to  dismiss  hearing \nunder Rule 13, she has not yet abridged that rule.  By the same token, I find that \nwhile § 11-9-702(a)(4) & (d) provide that a claim “may” (clearly intending that the \nadministrative  law  judge  has  discretion  in  the  matter)  be  dismissed  for  failure  to \nrequest a hearing within six months of the filing of the claim, dismissal is not yet \nwarranted here.  The Motion to Dismiss is thus denied. \n Prehearing  questionnaires  will  be  immediately  issued  to  the  parties;  and \nthis matter will proceed to a full hearing on the merits. \n However, Claimant’s  estate is  hereby  advised  that  any  failures  to \ncomply  with  deadlines  in  this  matter  in  the  future  could  well  lead  to \nRespondents moving once again for dismissal—this time successfully. \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby respectfully denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":11663,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H304290 ALAN L. KEUNE, DEC’D, EMPLOYEE CLAIMANT GRANITE MTN. QUARRIES 1, EMPLOYER RESPONDENT ACIG INS. CO., CARRIER RESPONDENT OPINION FILED MAY 8, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 7, 2025, in Little Rock, Pulaski Co...","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:40:27.552Z"},{"id":"alj-H404905-2025-05-08","awccNumber":"H404905","decisionDate":"2025-05-08","decisionYear":2025,"opinionType":"alj","claimantName":"Betty Horton","employerName":"Penske Truck Leasing Lp","title":"HORTON VS. PENSKE TRUCK LEASING LP AWCC# H404905 May 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Horton_Betty_H404905_20250508.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Horton_Betty_H404905_20250508.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H404905 \n \n \nBETTY HORTON, EMPLOYEE CLAIMANT \n \nPENSKE TRUCK LEASING LP, \nEMPLOYER RESPONDENT \n \nOLD REPUBLIC INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MAY 8, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on May  7,  2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Melissa  Wood,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on May 7, 2025, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   Admitted  into \nevidence    was Respondents’  Exhibit  1,  forms,  pleadings,  reports,  and \ncorrespondence  related  to  this  claim,  consisting  of one  index  page  and  nine \nnumbered  pages  thereafter.  Also,  in  order  to  address  adequately  this  matter \nunder  Ark.  Code  Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct \nthe hearing . . . in a manner which best ascertains the rights of the parties”), and \nwithout   objection,   I   have   blue-backed   to   the   record   documents   from   the \n\nHORTON – H404905 \n \n2 \n \nCommission’s file on the claim, consisting of 12 pages.  In accordance with Sapp \nv.  Tyson  Foods,  Inc.,  2010  Ark.  App.  517,  2010  Ark.  App.  LEXIS 549,  these \ndocuments have been served on the parties in conjunction with this opinion. \n The record shows the following procedural history: \n On July 31, 2024, through then-counsel Laura Beth York, Claimant filed a \nForm   AR-C, requesting   the   full   range   of initial and   additional benefits in \nconnection  with an injury to  her right shoulder “and other whole body” that she \nallegedly  suffered  at  work  on June  24,  2024.  No  hearing  request  accompanied \nthis filing.  On October 7, 2024, Respondents filed a Form AR-2, stating that they \nwere “[a]ccepting [a] one time visit.”  They amended this filing on December 5, \n2024, stating that “[t]his is the same body part as other open claim.\n1\n  This claim is \nbeing closed and will treat on prior claim.”  On October 17, 2024, York moved to \nwithdraw from her representation of Claimant.  In an order entered on October 30, \n2024, the Full Commission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary 4, 2025.  On that date, Respondents filed the instant motion, asking for \ndismissal of the claim\n2\n under AWCC R. 099.13 because “Claimant has not sought \n \n \n1\nSee infra note 2. \n \n \n2\nRespondents in their motion reference two Forms AR-C being filed in this \nmatter:   one  on  August  11, 2023,  and  the  other  on  July 10,  2024.   The  file  does \nnot  contain  this  purported  earlier  Form  AR-C;  but  I  note  that  its  filing  would  pre-\ndate the alleged injury date, June 24, 2024.  The motion explains this anomaly: \n \n\nHORTON – H404905 \n \n3 \n \nany type of bona fide hearing before the Workers’ Compensation Commission.”  \nThe file was assigned to Administrative Law Judge JayO. Howe.  His office wrote \nClaimant on February  10,  2025,  asking  for  a  response  to  the  motion within  20 \ndays.   The  letter  was  sent  by  first  class and  certified mail  to the White  Hall, \nArkansas address for her listed in the file and on her Form AR-C.  Someone with \nan illegible signature signed for the certified letter on February 14, 2025; and the \nfirst-class letter was not returned.  Regardless, no response from Claimant to the \nmotion was forthcoming.  On March 13, 2025, a hearing on the Motion to Dismiss \nwas  scheduled for May  7,  2025, at 1:30 p.m.  at  the Commission in Little  Rock.  \nThe  notice  was  sent  to  Claimant  via  first-class  and  certified  mail to  the  same \naddress as before.  In this instance, Claimant claimed the certified letter on March \n18, 2025; and the first-class letter was, again, not returned. \n The hearing on the Motion to Dismiss proceeded as scheduled before the \nundersigned.  Again, Claimant failed to appear at the hearing.  But Respondents \nappeared through counsel and argued for dismissal under the foregoing authority. \n \nThis  claim  involves  an  injury  which  occurred  on  or  about  July  30, \n2022.    Respondents  will  stipulate  that  an  Employer-Employee \nrelationship  existed  on  that  date  and  that  Claimant  sustained  a \ncompensable injury to her right shoulder and left knee. \n \nI take judicial notice that the above allegations were the subject of another claim, \nAWCC  No.  H207279.    That  claim  was  dismissed on Respondents’  motion  by \nAdministrative Law Judge Steven Porch on March 31, 2025. \n\nHORTON – H404905 \n \n4 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for additional \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n\nHORTON – H404905 \n \n5 \n \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin  pursuit  of it (including  appearing  at  the May  7,  2025, hearing to  argue  against \nits dismissal)  since the filing  of  her  Form  AR-C  on  July  31,  2024.    Thus,  the \nevidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nHORTON – H404905 \n \n6 \n \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n3\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n3\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8274,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H404905 BETTY HORTON, EMPLOYEE CLAIMANT PENSKE TRUCK LEASING LP, EMPLOYER RESPONDENT OLD REPUBLIC INS. CO., CARRIER RESPONDENT OPINION FILED MAY 8, 2025 Hearing before Administrative Law Judge O. Milton Fine II on May 7, 2025, in Little Rock, Pulaski County, ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["shoulder","knee"],"fetchedAt":"2026-05-19T22:40:29.701Z"},{"id":"alj-H106528-2025-05-08","awccNumber":"H106528","decisionDate":"2025-05-08","decisionYear":2025,"opinionType":"alj","claimantName":"Tommy Eldridge","employerName":"City Of Harrison","title":"ELDRIDGE VS. CITY OF HARRISON AWCC# H106528 May 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ELDRIDGE_TOMMY_H106528_20250508.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ELDRIDGE_TOMMY_H106528_20250508.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H106528 \n \nTOMMY O. ELDRIDGE, EMPLOYEE CLAIMANT \n \nCITY OF HARRISON, EMPLOYER RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, CARRIER/TPA RESPONDENT \n \n \n OPINION FILED MAY 8, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Harrison, Boone County, \nArkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by MARY K. EDWARDS, Attorney, North Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On February 12, 2025, the above captioned claim came on for a hearing at Harrison, Arkansas. \nA pre-hearing conference was conducted on October 31, 2024, and a pre-hearing order was filed on \nthat same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2.   The employee/employer/carrier relationship existed on November 4, 2020. \n            3.   Claimant sustained a compensable injury on November 4, 2020.  \n At the hearing, the parties announced an agreement that claimant’s average weekly wage was \n$845.80, which would entitle him to compensation at the weekly rates of $564.00 for total disability \nbenefits and $423.00 for permanent partial disability benefits. \n\nEldridge-H106528 \n2 \n \n \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1. Whether claimant is entitled to permanent and total disability, or in the alternative, a  \n       wage loss award in excess of the 25% wage loss conceded by the respondents. \n            2.   Attorney’s fees. \n All other issues are reserved by the parties. \n The claimant contends that “He is entitled to permanent and temporary total disability \nbenefits. Claimant reserves all other issues.” \n The respondents contend that “Claimant cannot prove by a preponderance of the evidence \nthat he is permanently and totally disabled. Claimant reached maximum medical improvement on July \n6, 2023. He received a twelve percent (12%) rating; respondents have paid this rating in full. Following \na valid FCE, claimant was placed on permanent work restrictions in the LIGHT classification of work. \nThe city  offered  claimant  a  job  within  his  permanent  work  restrictions.   See attached Exhibit “A.”  \nClaimant accepted this job and worked for the city. Id. However, in April of 2024 claimant voluntarily \nleft his employment with the city. Respondents accepted twenty-five percent (25%) wage loss based \non the difference between what claimant was making prior to his injury and the amount of the job \nthat he voluntarily quit.  Respondents are currently paying out the wage loss. Respondents reserve the \nright to file an amended response to the prehearing questionnaire or other appropriate pleading and \nto allege any further affirmative defense(s) that might be available upon further discovery.”     \n            From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n\nEldridge-H106528 \n3 \n \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on October \n31, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as fact, as is \nthe stipulation announced at the hearing about claimant’s average weekly wage. \n 2. Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \npermanent total disability benefits pursuant to A.C.A. § 11-9-519. \n 3. Claimant has proven by a preponderance of the evidence that he is entitled to permanent \npartial  disability  benefits  in  an  amount  equal  to 50%  to  the  body  as  a  whole  as  a  result  of  his \ncompensable injury for loss in wage earning capacity. \n4.  Respondents  have  controverted  claimant's  entitlement  to  all  unpaid  indemnity  benefits \nabove 25% of the wage-loss disability it accepted and is currently paying. \n \n FACTUAL BACKGROUND \n In the prehearing order, claimant’s only contention was that he was entitled to permanent and \ntotal disability benefits. Respondents contended that he could not prove by a preponderance of the \nevidence that he was so entitled. Before the hearing began, the parties agreed to amend the issues to \nbe litigated to include an alternative claim for a wage-loss claim in excess of the 25% wage-loss which \nhad been conceded by respondents. The amended issue was read to the parties and both agreed to \nlitigate the amended issue. (T.5) This amendment was handwritten on the prehearing order.  \nHEARING TESTIMONY \n \n Claimant  was  the  only witness  called  on  his  behalf. He  testified  that  he  had  worked  for \nrespondent, City of Harrison, from August 2011 until he was injured on November 4, 2020. He was \na  heavy  equipment  mechanic which required  him  to  do  lifting  occasionally  of  one  hundred  to  one \n\nEldridge-H106528 \n4 \n \n \nhundred  twenty-five  pounds  and frequently between  forty  and  fifty-five  pounds. On  November 4, \n2020, claimant was installing a hydraulic cylinder on a backhoe when he felt something in his back as \nhe picked up the cylinder. Claimant said immediately after the incident that he was hurting so badly  \nthat he had to sit for about an hour and then he told his supervisor that he had hurt his back. Due to \nthe  injury  in  his  back,  claimant  has  had  two  surgeries,  multiple  injections,  and  two  radiofrequency \nablations (RFA). He continues to be treated by Dr. Brent Weilert for pain management.   \nClaimant testified that he continued working until June 14, 2022, but had to stop due to the \npain and numbness he felt in his back and legs. Dr. Daniel Shephard performed a fusion on claimant’s \nback on November 16, 2022, and claimant returned to work on light duty. In August 2023, claimant \nwas offered a job as a clerical assistant, a type of work he had never done. Claimant said he worked in \nthat clerical position for eight hours a day on four days of the first week and then two or three hours \na day for three or four days the next week. Claimant testified that sitting in a chair over a period of \ntime was painful and the way he could get relief at least at his home was to sit in his recliner and stretch \nout. Claimant said he could not concentrate because of the amount of pain he had. He tried different \nchairs which did not help alleviate the pain of sitting. \n Claimant related many activities that he did around his house and for leisure that he could no \nlonger do or could not do as he had before his injury. This included mechanical work, mowing the \nyard, feeding the chickens, cows, and goats, and deer hunting. Where before he could lift feed for the \nanimals, work on vehicles without stopping, weed eating his yard, and other such activities, these were \neither  now  impossible  for  him  to  do  or  took  him  much  longer  and  caused  him  great  discomfort. \nClaimant described his normal day as getting up with his wife at six a.m., drinking coffee, sitting in his \nchair until about nine thirty when he gets up to do the dishes and then returning to his recliner. He \ntestified that he does laundry; when he finishes folding it and putting it away, he is back in his recliner \n\nEldridge-H106528 \n5 \n \n \nto get relief. \n Claimant testified that he is now on Social Security disability, which was awarded for several \nconditions including the low back problem. Claimant worked with his high blood pressure and COPD \nas well as arthritis in his fingers and hearing loss. He stated that none of these conditions listed in his \nSocial Security disability award prevented him from working at the time of the accident.  \n Claimant related a vocational history of working in a grocery store, working in construction \nand factories, as well as working in a feed store and serving as a mechanic and/or maintenance man. \nMost of these jobs involved some degree of lifting above his current  restrictions. Claimant had never \nworked at any kind of desk job. He stated his education ended during the twelfth grade, but he did \nnot finish it, and he does not have a GED.  \n Claimant was shown the list of duties and responsibilities for the clerical assistant job which \nincluded regular and reliable attendance, which he stated he was able to do for four days. Claimant \nhad  no  typing skills  and had  not  done  data entry. He  had  no  experience writing  memorandums  or \nwriting communications from one department to another. He stated he was unable to remain alert \nand concentrate for long periods of time as the job description required. Claimant said when his pain \nis at its worst, he gets in his recliner to stretch out. He takes regular Tylenol daily and Tylenol p.m. to \nsleep. Claimant also uses a TENS unit.  \n Claimant related a back injury that he had in 2016 which was not work related. He had been \npruning and started going numb; after sitting on the ground, he got up and the numbness went away. \nHe was able to do the work required by the city from 2016 to November 2020. \n Claimant  said  the  pain  in  his  back  never  goes  away. He  has  a twenty-five-pound lifting \nrestriction; he believes there are some days he could do that, but other days, lifting a jug of milk from \nthe refrigerator causes pain. Claimant also testified that he had some issues of incontinence that he \n\nEldridge-H106528 \n6 \n \n \ndid not have prior to his first surgery.  \n On cross-examination, claimant stated that he was given permanent work restrictions in July \n2023 and was offered the job as a water/sewer clerk, which he accepted. Claimant believed that he \nstopped  coming  to  work around  September  20, 2023. When asked about  the  duties  as  a city water \nclerk, claimant testified that he was sitting at a desk and putting information and addresses into the \ncomputer. He was not required to lift over twenty-five pounds, stoop, climb, crouch, and could get \nup and move around as he needed. Claimant was asked about changing chairs and that his supervisor \nand head of the department told him to find a chair he was comfortable in. As a water clerk, claimant \nlooked at the screen and wrote down the information he found. Claimant agreed that he did not work \nfrom September 20, 2023, until November 20, 2023, nor did he return to work after he received a slip \nto go back to work on April 8, 2024. He provided the return-to-work slip to the city but did not return \nto work. Claimant also has not worked for any other employer since April 8, 2024. Claimant did speak \nwith  someone  in  November  2024,  about  a  job  at  Home  Depot  but  believed  it  was  outside  his \npermanent work restrictions. Claimant testified that he had worked on three occasions for someone \nback filling graves but had not yet been paid because he wanted to try to see if he could physically do \nit. He believed that job would pay $125.00 per grave. \n Claimant was asked about several jobs that had been suggested by a vocational rehabilitation \nspecialist including a  part-time  faculty  position at  the  vocational  school,  a  light  assembly worker  at \nGood Sportsmen Marketing, a call center representative, a senior retail sales associate at Auto Zone, \nan assembler at Baxter/Vantive and an assembly job at Light Manufacturing, none of which he had \napplied for.   \nClaimant again testified about his daily activities and stated that he sometimes works on his \nvehicles in a workshop, including changing the oil in one of his vehicles and how he goes hunting a \n\nEldridge-H106528 \n7 \n \n \ncouple of times a week during hunting season. He explained that prior to his injury, he was able to sit \nin a tree stand for 12 hours, drag out a deer if he shot one and process the meat. Since the injury, \nclaimant said  he goes  about  a  quarter  of  a  mile  from  his  house and  sits  in  the  blind  for  about  two \nhours. He drives close enough to the blind and walks about 100 yards to get in position for the hunt.   \n On redirect-examination claimant was asked about a release from Kelsey Harper in April 2024, \nwhich  stated  that  claimant  had  no  restrictions. Claimant  did  not  understand  that  he  had  ever  been \nreleased  with  no  restrictions, and  he  had  undergone  a  functional  capacity  evaluation that  placed \nrestrictions on him. \n Claimant said he has not applied for the teaching job as a vocational expert because he did not \nhave the education to do so. He explained that he had worked a light-duty job with the city in February \n2023,  that  involved  painting  benches,  running  a  weed  eater,  and  riding  a  lawn  mower,  but  he  was \nunable to do that work. Claimant said he would like to be working and had not been offered any job \nthat he had not tried to do either by the city or otherwise. He stated that he required family assistance \nfor the chores around his house.  \n After claimant rested, respondents called Wade Phillips who is the director of public works \nwhich  included  the  maintenance  department  where  claimant  worked when  he  was  injured,  and  the \nwater  department  where  claimant  returned  to  work  in  the  water/sewer  clerk  position. When  Mr. \nPhillips received the permanent work restrictions for claimant after his November 2022 surgery, he \ntried to find what positions were open with the city and located an unfilled clerical position. This job \npaid  an  annual  salary  of  $32,843.00  and  Mr.  Phillips  believed  that  the  job  description  was  within \nclaimant’s permanent work restrictions. Mr. Phillips said that he received the return-to-work release \nthat was signed on April 4, 2024, and claimant did not return. Mr. Phillips confirmed what claimant \nhad said about the physical demands of the clerk’s position and that had the position required anything \n\nEldridge-H106528 \n8 \n \n \nthat was outside of his capabilities, there would have been an attempt to accommodate him.  \n On  cross-examination, Mr. Phillips explained that the clerk’s position was more of a field \nposition,  but  the  city  did  not  have  a  good  candidate  to  fill  it  and  since  it  was  available  within  the \nbudget, claimant could be transitioned into that position. The job involved developing an inventory \nof their water service lines to be in compliance with EPA regulations. The city needed someone to \nlook through the tax records in the county to identify when a home was built. Those built before 1987 \ntriggered whether that particular water line needed to be looked into a bit further. This involved data \nresearch and working on the computer, taking notes and documenting what he found. Mr. Phillips \nbelieved Mr. Eldridge was qualified to do the job. He did not have to interview him because he already \nknew him. Mr. Phillips did not interact with claimant while he was doing the job because it was in a \ndifferent location from his office. Between September 2023, and April 2024, claimant was an employee \non paper but not participating in anything for the city. The clerk’s position has remained open since \nclaimant left. \n Under questioning from the Court, Mr. Phillips stated that he did not know that a high school \neducation or GED was a qualification for the job because it was not in claimant’s previous position. \nAs far as data entry, claimant said there was a fleet maintenance computer system they use for tracking \ninventory that claimant could have been used while he was working as a mechanic. The standard office \nequipment that claimant operated was a basic desktop computer. Claimant would have answered the \nphone while he was working doing maintenance only if it were a direct call to the shop.  \n Respondents then called Mr. Charles Jones, who was the operation manager for the water and \nsewer department. He was claimant’s supervisor during the time he worked at the water and sewer \ndepartment but not when he worked in maintenance. Mr. Jones confirmed that there were no physical \ndemands  for  that  job  that were not within claimant’s physical limitations. Claimant  was  shown \n\nEldridge-H106528 \n9 \n \n \nphotographs of the desk and chair that claimant used when he started working as a clerk. Mr. Jones \nwas aware that claimant had difficulty sitting in one  chair (R.NM.X. 69) and was shown photographs \nof other chairs he was offered but stated that claimant did not try those chairs. Mr. Jones did not recall \nclaimant asking for any help in operating the computer or hearing any complaints from him about not \nbeing able to work the program. \n On cross-examination, Mr. Jones described how he supervised twenty-five people and made \nplans for what each of them is to do on a daily basis. He stated that his office was where claimant was \nworking and he was in the office the majority of the time. At the end of each day, claimant turned in \nthe addresses he had verified and the dates on the houses when they were built. Mr. Jones was satisfied \nat the progress he was making. They had over seven thousand service connections that need to be \nverified. Each day, Mr. Jones made notes about the work claimant did on a particular day (R.NM.X.66). \nRegarding claimant’s complaints about his chair, Mr. Jones said that claimant was offered a different \nchair, but he did not want it. There were two other chairs other than the ones he had and those were \nthe best chairs available.  Mr. Jones did not know if the chair was giving claimant problems, but did \nstate that it did not have arms on it as it was one of the older chairs. He confirmed there was no place \nfor an employee to lay on a bed or a couch or get into a recliner. \n Claimant was recalled and testified that he had started in a metal chair, then moved to a plastic \nchair and then to a blue chair. The blue chair was the one without arms. (R.NM.68)  He had seen the \nother chairs (R. NM.X 71 and 72) but had not been offered those. However, he did not believe that \nthose chairs would have made it possible for him to sit for eight hours and work.    \n \nREVIEW OF THE EXHIBITS \n \n Claimant submitted sixty-eight pages of medical records; it appears that all but two pages of \nclaimant’s records were  included  in  those  submitted  by  respondents. An  exhaustive  review  of  the \n\nEldridge-H106528 \n10 \n \n \nrecords regarding claimant’s treatment is unnecessary for the determination of the issues in this case. \nDr. Konstantin Berestnev adequately summarized claimant’s medical history as part of his impairment \nrating on July 12, 2023. Dr. Berestnev noted that conservative treatment, steroid injections, and pain \nmedicine had failed, resulting in claimant having two surgeries on his lower back. The first surgery \nwas on August 2, 2021, which involved a bilateral L4-L5 hemilaminectomy and microdiscectomy, after \nwhich claimant continued to be symptomatic with L-5 dermatome numbness. On November 16, 2022, \nclaimant had an L4-L5 lumbar fusion, after which he continued to be sympathetic with pain radiating \ndown  both  legs  and  a  decreased  range  of  motion  in  his  lower  back. After  reviewing  the  functional \ncapacity evaluation, which was performed on June 19, 2023, Dr. Berestnev concluded that claimant \nwas at maximum medical improvement (MMI) and assessed a 12% whole person impairment rating. \nClaimant’s permanent restrictions were  no  lifting  above  twenty-five  pounds,  no  repetitive  bending, \nstooping, climbing, or crouching.  \nRespondents’ medical exhibits totaled one hundred fifty-four  pages,  which contained  all  of \nwhat claimant submitted (except for a visit to Ozark Urology on February 23, 2023). These additional \nrecords provided a more complete picture of claimant’s course of treatment through November 7, \n2024, but changed nothing about claimant’s impairment rating and current physical restrictions. There \nwas one record that I disregarded completely. On March 26, 2024, a physician’s assistant filled in a \nwork release that stated claimant had no restrictions as of April 8, 2024.  I believe the assistant made \na mistake in completing the form, because it was such an aberration in light of all the other evidence \nthat it was not credible.   \nNON-MEDICAL EXHIBITS \n Claimant    submitted    forty-seven    pages    of    non-medical    evidence    which    included \ncorrespondence to claimant regarding the clerical assistant position at the water and sewer department \n\nEldridge-H106528 \n11 \n \n \nwhich  included  the  job  description  with  the  essential  duties  and  responsibilities  along  with  the \nminimum  qualifications.  (CL.NM.X.2  pages  1-7) These records  also  included the  first  page  of \nclaimant’s Social Security disability award on January 20, 2024 (CL.NM.X.2 page 8) which provided \nthat claimant was disabled pursuant to the rules of the Social Security Administration as of August 2, \n2021. Claimant’s exhibit concluded with the vocational analysis of Dr. Tanya Rutherford-Owens and \ncorrespondence  with  Dr.  Owens  that  included  the  June  19,  2023,  functional capacity evaluation. \n(CL.NM.X.2  pages  9-47)    Claimant  then  supplemented  his  non-medical  records  with  the  disability \ndetermination explanation dated January 11, 2024, which was prepared as part of his Social Security \ndisability application (CL.NM.X.3, pages 1-8)  \n Respondents’ non-medical  exhibits  totaled ninety-three  pages  and  included  wage  records, \nemployee timesheets, indemnity payment log, and medical payment log as well as photographs of the \nworkspace where claimant was assigned in the water and sewer department and the chairs that were \nin the office when claimant worked there.  \nADJUDICATION \n \n As  set  forth  above,  claimant  has  a  12%  permanent  impairment  rating  to  his  lower  back  as \nassessed by Dr. Berestnev. The indemnity payment log submitted by respondent shows this rating was \naccepted and has already been paid. Respondents conceded claimant had a wage-loss disability in the \namount of 25% and had begun paying this as of the time of the hearing. The 25% wage-loss disability \nrepresents the difference between what claimant was earning as a heavy equipment mechanic and what \nhe was paid to work at a clerical assistant in the water and sewer department.  \n Claimant pled that he is entitled to permanent total disability benefits (PTD) as per Ark. Code \nAnn. § 11-9-519, or in the alternative, an award of wage-loss disability under Ark. Code Ann. § 11-9-\n522 above the 25% conceded by respondents. An award of permanent total disability would end the \n\nEldridge-H106528 \n12 \n \n \ndiscussion of this matter and therefore will be addressed first.  \nIs claimant permanently and totally disabled? \n Permanent  total  disability is  defined as the \"inability,  because  of  compensable  injury  or \noccupational  disease,  to  earn  any  meaningful  wages  in  the  same  or  other  employment.\"  Ark.  Code \nAnn.  §  11-9-519(e)(1)(Repl.  2012). A claimant  has  the  burden  of  proving  inability  to  earn  any \nmeaningful wage in the same or other employment. Ark. Code Ann. § 11-9-519(e)(2).  \n Looking at the clerk’s position, it is clear from reviewing the minimum qualifications for the \njob (Cl. 2 NMX 5-7), claimant did not qualify for the position. He did not have a high school diploma \nor equivalent, he had no experience using the software programs that were part of that position, and \nhe  had  no  experience  answering  the  phones  or  dealing  with  the  public. That  said, I  disagree  with \nclaimant’s assertion in closing argument that this was not a bona fide job offer (T. 54), because I am \nconvinced those that were responsible for hiring him as a clerk wanted him to be able to perform that \nsedentary job and  believed  he  was  capable  of  doing  so. Claimant  was  well  known  to  the city \nadministrators and department heads, and it appears there was a desire to accommodate him; as such, \nthe requirements in the job description were not enforced before giving the position to claimant. I \nalso note that when he was given the position in September 2023, the information that respondents \nhad was limited to that provided by the FCE of June 19, 2023, which said he was able to physically \nperform at the light classification of work (Cl.#2 NMX, page 26), and the clerk’s position was within \nthat restriction.  \n There were two determinations of claimant’s ability to engage in gainful employment after he \nleft the clerk’s job in September 2023. Claimant provided the disability determination from the Social \nSecurity Administration (Cl.X.3, pages 1-8) which was completed on January 11, 2024.\n1\n The disability \n \n1\n That determination by Social Security is evidence that  can be  considered by the Commission, but permanent and \n\nEldridge-H106528 \n13 \n \n \nexaminer, Ms. Rainey Leathers, found that there were insufficient numbers of jobs to which claimant \ncould return based on his residual functional capacity. Ms. Leathers believed the maximum sustained \nwork capacity claimant could reasonably be expected to perform was at the sedentary level. Claimant \nlisted  his  back  injury  among several  conditions  he  suffered  from,  including high  blood  pressure, \nchronic obstructive pulmonary disease, low cholesterol, joint pain in fingers, vertigo, right foot nerve \npain and hearing loss. Ms. Leathers found claimant’s lumbar stenosis was his primary issue and listed \nit as severe, but she also listed as severe issues his chronic pulmonary insufficiency,  osteoarthrosis \nand allied disorders.  \n Claimant  also  submitted  a  vocational  analysis  performed  by Dr.  Tanya  Rutherford  Owen, \nwhich  she  submitted  on  July  28,  2024 (R.2 NMX.75-87).  In  it, she  determined  claimant  could  not \nreturn to his past work, and based on claimant’s transferable skills, he had a loss of 80-83.92%  of \ntransferable skills occupations. She noted claimant had no transferable skills for sedentary work. Dr. \nOwen conducted a labor-market survey in which she listed seven occupations in the light category of \nwork that were available in claimant’s area at the time she completed her report. In an email exchange \nwith claimant’s attorney, Dr. Owen determined that five of those seven jobs would be eliminated if \nclaimant needed to sit and stand at will.    \n While I respect Dr. Owen’s expertise, I found  myself  disagreeing  with  her  opinion  on  two \npoints. First,  the  two  jobs  she  said  were  not  eliminated were  a  part-time  faculty  member at  North \nArkansas Community College and a Call Center Representative. The former was a position teaching \nvocational skills such as welding, construction equipment operations, automotive service, and the like. \nThe pay was $550-$3500 depending on “course credits and lecture/lab assignments.”  The required \n \ntotal  disability  for  the  purposes  of  social  security  is  different  than permanent  and  total  disability  under Arkansas \nworkers' compensation law. Kirkendolph v. Dep't of Fin. & Admin., 2010 Ark. App. 786 \n\nEldridge-H106528 \n14 \n \n \nqualification stated that completion of an associate’s degree was preferred. Claimant had not finished \nhigh school, and I do not believe he could adequately prepare and deliver lectures; further, the pay for \nthose  courses was far from a “meaningful wage.” The latter position required intensive  computer \nwork,  such  as  updating  billing,  processing  credit  card payments,  completing workflow for patient’s \nself-pay  accounts,  posting payments, and  dealing  with  the  public  on  such  issues. This  is  not  in  the \ncategory of light work, but rather in the nature of sedentary labor, which Dr. Owen had ruled out.  \n   However, claimant had a sedentary job that I find he was able to perform with the water and \nsewer department. This position did not involve data entry, but rather looking at existing tax records \nand making handwritten notes as to when a house was constructed. Mr. Jones testified while working \nin the clerk’s position, claimant wrote down what he had verified on each day. There was no testimony \nthat this task was beyond claimant’s limited knowledge of use of a computer. Claimant’s complaint \nwas not  that  he was  unable  to  do  the minimal  computer  operations required  for  that  position,  but \nrather that  the  chairs  in  the  office  were  uncomfortable  on  his  back. Mr. Phillips was  unaware  that \nanyone told claimant he could not stand or sit if he needed to do so during the workday. Mr. Jones \nand claimant had a different recollection as to whether claimant was offered the other available chairs; \nMr. Jones believed he was offered a different chair; claimant said no such offer was made, but then \nstated  that  he did  not think  the  other  chairs  would have  been  adequate. Rather  than seeking \naccommodation of a more comfortable chair from an employer that had shown its willingness to be \naccommodating to claimant, he simply quit the position after two weeks.      \n In  viewing  all  the  evidence,  I am  not  satisfied  that  claimant  is  motivated  to  seek full-time \nemployment  within  his  capabilities. Dr.  Owen pointed  out  that  claimant  could apply  for  retraining \nthrough  the  Arkansas  Rehabilitation  Services,  but  there  was  no  testimony  that  he  did  so. The \npreponderance of credible evidence shows that the claimant has the ability to perform work, at least \n\nEldridge-H106528 \n15 \n \n \nin the light category. Moreover, no doctor has opined that the claimant is incapable of returning to \nother  employment  in  the  sedentary  category;  that  was the  opinion  of  Dr.  Owen in  her  vocational \nanalysis,  which  as  stated  above,  I  reject as far  as some forms  of  employment  is  concerned. After \nconsidering claimant's  age,  education,  work  experience,  the  nature  and  extent  of  his  injury,  his \npermanent restriction, and all other relevant factors, I find he has not met his burden of proving that \nhe is permanently and totally disabled.  \nIs claimant entitled to wage-loss disability above the 25% conceded by respondent? \n Even with the desire to return claimant back to work, respondent could not do so at the wages \nhe was making before his injury, and therefore claimant is not barred by §11-9-522(b)(2) from making \na  claim  for  wage-loss  disability  above his  12%  permanent  physical  impairment  rating  which  was \nestablished  by  medical  evidence  and  accepted  by  the  parties.  Respondents’ position is that it \nestablished the amount of wage-loss by offering claimant a position within what it believed to be his \nphysical restrictions, and as claimant left that position voluntarily, he is not entitled additional wage-\nloss disability. I disagree.  \n Ark. Code Ann. § 11-9-522(b)(1) states: \nIn considering claims for permanent partial disability benefits in excess of the \nemployee's  percentage  of  permanent  physical  impairment,  the  Workers' \nCompensation  Commission  may  take  into  account,  in  addition  to  the \npercentage of permanent physical impairment, such factors as the employee's \nage,  education,  work  experience,  and  other  matters  reasonably  expected  to \naffect his or her future earning capacity.  \n \n Such “other matters” include motivation,  postinjury  income,  credibility,  demeanor,  and  a \nmultitude  of  other  factors  to  be  considered  in  claims  for  wage-loss-disability  benefits  in  excess  of \npermanent-physical  impairment. Ark.  Highway  &  Transp.  Dep't  v.  Work,  2018  Ark.  App.  600,  565 \nS.W.3d 138. There is no exact formula for determining wage loss Hixon v. Baptist Health, 2010 Ark. \nApp. 414. \n\nEldridge-H106528 \n16 \n \n \n In light of all the evidence, I do not believe claimant is motivated to return to the workforce \nas witnessed by how quickly he left the job he accepted with the water and sewer department. His \nfailure  to actively seek  other  employment since  he  was  released  with  those  restrictions also \ndemonstrates a lack of motivation to return to the workforce. I also believe his award of disability by \nthe Social Security Administration is a factor in his failure to seek meaningful employment; it is also a \nsource of postinjury income that I am taking into consideration. However, \"although a lack of interest \nin pursuing employment impedes the assessment of the claimant's loss of earning capacity, it is not a \ncomplete bar.\" Ark. DOT v. Abercrombie, 2019 Ark. App. 372., that alone does not bar claimant from \nreceiving some degree of wage loss benefits. According to Dr. Owen, claimant’s physical condition \nseverely  limits  the  number  of  jobs claimant  could  reasonably  be  expected  to  perform. After \nconsidering all the factors set forth in this opinion, I am satisfied that claimant has proven he has a \nwage loss disability of 50% above his physical impairment ratings.    \nORDER \n \n Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \npermanent total disability benefits pursuant to A.C.A. § 11-9-519.  \nClaimant has proven by a preponderance of the evidence that he has suffered a loss in wage \nearning capacity in an amount equal to 50% to the body as a whole. Accordingly, claimant is entitled \nto payment of permanent partial disability benefits in an amount equal to 50% to the body as a whole.  \nRespondent  has  controverted  claimant's  entitlement  to  all  unpaid  indemnity  benefits above \nthe 25% wage loss disability that it conceded. \nPursuant to A.C.A. § 11-9-715(a)(1)(B), claimant's attorney is entitled to an attorney fee in the \namount  of 25%  of  the  compensation  for  indemnity  benefits  payable  to  the  claimant above  the \nindemnity benefits conceded by respondents. Thus, claimant's attorney is entitled to a 25% attorney \n\nEldridge-H106528 \n17 \n \n \nfee based upon the 15% wage-loss benefits awarded. This fee is to be paid one half by the carrier and \none-half by the claimant. \nRespondents are responsible for payment of the court reporter's charges for preparation of \nthe hearing transcript. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":34756,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H106528 TOMMY O. ELDRIDGE, EMPLOYEE CLAIMANT CITY OF HARRISON, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, CARRIER/TPA RESPONDENT OPINION FILED MAY 8, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Harrison, Boone County, Arkansas. Claima...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["back","lumbar","repetitive"],"fetchedAt":"2026-05-19T22:40:31.786Z"},{"id":"alj-H305931-2025-05-07","awccNumber":"H305931","decisionDate":"2025-05-07","decisionYear":2025,"opinionType":"alj","claimantName":"Kim Welborn","employerName":"Inspiration Point Fine Art College","title":"WELBORN VS. INSPIRATION POINT FINE ART COLLEGE AWCC# H305931 May 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WELBORN_KIM_H305931_20250507.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WELBORN_KIM_H305931_20250507.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H305931 \n \nKIM WELBORN, Employee CLAIMANT \n \nINSPIRATION POINT FINE ART COLLEGE, Employer RESPONDENT \n \nFIRSTCOMP INS. CO., Carrier RESPONDENT \n \n \n \n OPINION FILED MAY 7, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant unrepresented and appearing pro se. \n \nRespondents  represented  by RANDY  P.  MURPHY,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On April 9, 2025, the above captioned claim came on for a hearing at Springdale, \nArkansas.   A pre-hearing conference was conducted on January 29, 2025, and a pre-\nhearing  order  was  filed  on  that  same  date. A  copy  of  the  Pre-hearing  Order  has  been \nmarked Commission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  this \nclaim. \n 2. Claimant sustained a compensable injury to her right knee on June 5, 2022. \n 3. Respondent has accepted and paid permanent partial disability benefits based \non a 7% impairment to the lower extremity. \n\nWelborn – H305931 \n \n-2- \n 4.  Claimant  was  earning  sufficient  wages  to  entitle  her  to  compensation  at  the \nweekly  rate  of  $778.00  for  total  disability  benefits  and  $584.00  for  permanent  partial \ndisability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issue: \n 1. Claimant’s entitlement to additional medical treatment from Dr. Dona. \n The  claimant  contends she  is  entitled  to  additional  medical  treatment  from  Dr. \nDona. \n The respondents contend that claimant has received all benefits to which she is \nentitled for the compensable right knee injury and that claimant’s current problems are \nrelated to a preexisting knee condition. \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted  on January  29,  2025,  and  contained  in  a pre-hearing  order  filed  that  same \ndate are hereby accepted as fact. \n 2. Claimant has met her burden of proving by a preponderance of the evidence \nthat  she  is  entitled  to  additional  medical  treatment  from  Dr.  Dona.  This  includes  PRP \n(plasma rich protein) injections and hyaluronic acid injections. \n \n\nWelborn – H305931 \n \n-3- \nFACTUAL BACKGROUND \n The  claimant  worked  as  a  seasonal  costume  manager  for  the  respondent.  Her \njob duties required her to design costumes; and supervise the construction and fitting of \nthe  costumes.  On  June  5,  2022,  respondent  had  flooding  in  its  building  due  to  a  pipe \nbreak. Claimant testified that heavy rubber perforated mats were placed on the floor but \nthe mats were too big for the area so the edges were rolled up against the edges of a \ncounter.  Claimant  testified  that  she  was walking  around a  corner  when  her  foot  got \nstuck under the mat causing her body and knee to twist. \n Claimant  reported  this  incident  to  her  supervisor  and  also  received  some  initial \ntreatment from Dr. Alice Martinsen, a retired orthopedic surgeon who was on the staff at \nrespondent.  Martinsen  initially  informed  claimant  that  she  believed  she  had  suffered  a \ntorn MCL that would take some time to heal. Claimant continued to work for respondent, \npropping  up  her  knee  and  putting  ice  on  it.  She  also  continued  to  receive  some  initial \nmedical treatment from Dr. Martinsen.  \n At  some  point  the  claimant  moved  to  Maryland  and  began  receiving  treatment \nthere.  Claimant  underwent  an  MRI  scan  on  February  21, 2023,  which  revealed  a  torn \nmeniscus.  Claimant  was  treated  conservatively  with  physical  therapy  and  injections \nincluding a PRP injection. When the conservative treatment did not alleviate claimant’s \ncomplaints, she underwent surgery on September 1, 2023, which consisted of a partial \nmedial meniscectomy and synovectomy of all three compartments. \n After  her  surgery  the  claimant  continued  to  have  complaints  of  pain  in  her  right \nknee. Claimant underwent a second MRI scan on November 29, 2023, which revealed \ninterval progression of the medial meniscus; femoral tibial arthrosis; and a cyst. \n\nWelborn – H305931 \n \n-4- \n Claimant  eventually  came  under  the  care  of  Dr.  Dona  who  has    prescribed \ntreatment in the form of PRP injections and hyaluronic acid injections. \n At  some  point  respondent  denied  claimant’s  entitlement  to  additional  medical \ntreatment including the injections by Dr. Dona. As a result, claimant has filed this claim \ncontending that she is entitled to additional medical treatment from Dr. Dona. \n \nADJUDICATION \n Claimant  contends  that  she  is  entitled  to  additional  medical  treatment  from  Dr. \nDona which includes PRP injections and hyaluronic acid injections. \n An  employer  is  required  to  provide  for  an  injured  employee  such  medical \ntreatment as may be reasonably necessary in connection with the injury received by the \nemployee.  A.C.A. §11-9-508(a).  The  employee  has  the  burden  of  proving  by  a \npreponderance of the evidence that medical treatment is reasonably necessary. Stone v \nDollar  General  Stores,  91  Ark.  App.  260,  209  S.W.  3d  445  (2005). What  constitutes \nreasonably  necessary  medical  treatment  is  a  question  of  fact  for  the  Commission. \nWright Contracting Company v Randall, 12 Ark. App. 358, 676 S.W. 2d 750 (1984). \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has met her burden of proof.  \n Initially, I note that claimant submitted into evidence a letter from Dr. Dona dated \nJanuary 27, 2025, which states: \nMrs.  Kimberly  Welborn  is  my  patient  and  I  am  actively \ntreating her. In my expert medical opinion, Mrs. Welborn will \nbenefit  from  continued  treatment  with  platelet-rich  plasma \n(PRP)   and   synergistic   use   of   viscosupplementation   for \nmedical  history  of  chronic  postoperative  right  knee  pain \n\nWelborn – H305931 \n \n-5- \nsecondary  to  exacerbation  of  primary  osteoarthritis  with \ncomponent  of  posttraumatic  osteoarthritis  in  the  setting  of \nprior  arthroscopy.  The  patient  has  demonstrated  clinical \nimprovement    with    prior    treatments    under    ultrasound \nguidance. \n \n Subsequent to that letter claimant was again seen by Dr. Dona on February 12, \n2025. Dr. Dona noted that claimant’s pain had moderately worsened since the time of \nher  last  visit  and  that  it  was  interfering  with  her  daily  activities.  Dr.  Dona  further  noted \nthat a prior injection had provided some relief in the months following the procedure. Dr. \nDona  performed  a  PRP  injection  that  date  using  ultrasound and  noted  that  claimant \nmight need a total joint arthroscopy should she fail to improve from the injections. \n In response to claimant’s continued medical treatment, respondent had various \nmedical records of the claimant reviewed by Dr. Owen Kelly, an orthopedic surgeon. In \na  report  dated  April  17,  2024,  Dr.  Kelly  opined  that  claimant  had  reached  maximum \nmedical  improvement  and  stated  that  he  would  assign  claimant  an  impairment  rating \nequal  to  7%  to  the  lower  extremity.  He  also  noted  that  he  did  not  believe  claimant \nneeded any further treatment with respect to her accident.  \n With  respect  to  the  PRP  injections  and  hyaluronic  acid  injections,  Dr.  Kelly \nauthored a letter dated February 24, 2025, stating that in his opinion the injections were \nnot reasonable and necessary medical treatment. In support of his statement he relied \nupon  recommendations  by  the  Academy  of  Orthopedic  Surgeons  which  he  indicated \nnoted   moderate   recommendations   against   the   use   of   hyaluronic   acid   and   PRP \ninjections. \n I find that the opinion of Dr. Dona is entitled to greater weight than the opinion of \nDr.  Kelly, Initially, I note that Dr. Kelly’s opinion is based upon the medical records \n\nWelborn – H305931 \n \n-6- \nthrough March 27, 2024. Claimant has continued to receive medical treatment from Dr. \nDona since that date. Furthermore, I note that the recommendations cited by Dr. Kelly in \nsupport of his opinion do not indicate that the use of hyaluronic acid and PRP injections \nprovide  no  benefit.  Instead,  he  notes  that  there  is  a  moderate  recommendation  or \nlimited  recommendation  against  their  use.  According  to  the  opinion  of  Dr.  Dona, \nclaimant  is  receiving  a  benefit  from  these  injections.  Most  significantly,  Dr.  Dona  is \nclaimant’s treating physician and has had the opportunity to evaluate her following the \ninjection  procedures.  On  the  other  hand,  claimant  has  never  been  evaluated  by  Dr. \nKelly. \n Based upon the foregoing, I find that the opinion of Dr. Dona is entitled to greater \nweight  than  the  opinion  of  Dr.  Kelly  under  the  circumstances  presented  in  this  case. \nTherefore, based upon the opinion of Dr. Dona, I find that claimant has met her burden \nof proving by a preponderance of the evidence that she is entitled to additional medical \ntreatment from him. This includes the PRP injections and hyaluronic acid injections. \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe  is  entitled  to  additional  medical  treatment  from  Dr.  Dona.  This  includes  PRP \ninjections and hyaluronic acid injections.  \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court \nreporter, Whitney Bryant, her fees and expenses within thirty (30) days of receipt of her \ninvoice. \n \n\nWelborn – H305931 \n \n-7- \n IT IS SO ORDERED. \n \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":10432,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H305931 KIM WELBORN, Employee CLAIMANT INSPIRATION POINT FINE ART COLLEGE, Employer RESPONDENT FIRSTCOMP INS. CO., Carrier RESPONDENT OPINION FILED MAY 7, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkans...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:40:25.480Z"},{"id":"alj-H405016-2025-05-06","awccNumber":"H405016","decisionDate":"2025-05-06","decisionYear":2025,"opinionType":"alj","claimantName":"Jacob Mupene","employerName":"Shearers Foods LLC","title":"MUPENE VS. SHEARERS FOODS LLC AWCC# H405016 May 06, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Mupene_Jacob_H405016_20250506.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Mupene_Jacob_H405016_20250506.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H405016 \n \n \nJACOB MUPENE, EMPLOYEE CLAIMANT \n \nSHEARERS FOODS LLC, \n     EMPLOYER RESPONDENT \n \nFARMINGTON CASUALTY CO., \n     CARRIER RESPONDENT \n \n \nOPINION FILED MAY 6, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 2, 2025, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n     This matter comes before the Commission on the Motion to Dismiss by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  May  2,  2025,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted into evidence was Respondents’ Exhibit 1, pleadings, correspondence \nand forms related to this claim, consisting of 43 numbered pages.  Also, in order \nto address adequately this matter under Ark. Code Ann. § 11-9-705(a)(1) (Repl. \n2012)(Commission  must  “conduct  the  hearing  .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe record documents from the Commission’s file on the claim, consisting of 41 \n\nMUPENE – H405016 \n \n2 \n \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \nArk.  App.  LEXIS  549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n     The record reflects the following procedural history: \n     Per the First Report of Injury or Illness filed on August 6, 2024, Claimant \npurportedly  suffered  an  injury  to  his  feet  on  July  13,  2024,  from  excessive \nstanding.  According to the Form AR-2 that was also filed on August 6, 2024, \nRespondents controverted the claim in its entirety.  Respondents’ counsel entered \nhis appearance before the Commission on May 19, 2023. \n     On August 14, 2024, the Commission received a letter from Claimant that \nreferenced the instant claim and stated pertinent part:  “I am writing this letter to \nrequest a review and overturn[ing] of the decision that was made regarding my \nclaim.  With all due respect, I have reason to believe my claim was wrongfully \ndenied.”  He later referred to this correspondence as an “appeal” of Respondents’ \ndenial and requested benefits in the forms of, inter alia, medical treatment of his \nalleged injuries, which he represented included his back.  Claimant responded to \na questionnaire sent to him by the Commission’s Legal Advisor Division.  Therein, \nhe represented that while the amount in dispute in his claim was in excess of \n$2,500.00,  he  nonetheless  wanted  to  attempt  mediation.    In  another  letter \nreceived by the Commission on August 23, 2024, Claimant made a “settlement \ndemand” of Respondents. \n\nMUPENE – H405016 \n \n3 \n \n     Because the attempt to set up a  legal advisor or mediation conference \nfailed, the file was reassigned to me on August 29, 2024.  Respondents’ counsel \nentered  his  appearance  on  September  9,  2024.    Preliminary  notices  and \nprehearing  questionnaires  were  issued  to  the  parties  on  September  9,  2024.  \nRespondents  filed  timely  responses  thereto—on  September  17,  2024,  and \nOctober 8, 2024, respectively.  But due to Claimant’s failure to file responses, his \nfile was returned to the Commission’s general files on November 5, 2024. \n     The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary 6, 2025.  On that date, Respondents filed the instant motion, asking for \ndismissal of the claim under AWCC R. 099.13 because Claimant (1) had not filed \na prehearing questionnaire response, and (2) had not responded to discovery that \nhad been propounded to him in September 2024.  My office wrote Claimant on \nFebruary 12, 2025, asking for a response to the motion within 20 days.  The letter \nwas sent by first class and certified mail to the Bradford, Arkansas post office box \nthat Claimant had used on all his correspondence with the Commission.  While \nthe  certified  letter  was  returned  to  the  Commission,  unclaimed,  on  March  14, \n2025,  the  first-class  letter  was  not  returned.    Regardless,  no  response  from \nClaimant to the motion was forthcoming.  Also on March 14, 2025, a hearing on \nthe  Motion  to  Dismiss  was  scheduled  for  May  2,  2025,  at  11:30  a.m.  at  the \nCraighead County Courthouse in Jonesboro.  The notice was sent to Claimant via \nfirst-class and certified mail to the same address as before.  Once again, the \n\nMUPENE – H405016 \n \n4 \n \ncertified letter was returned to the Commission, unclaimed, on March 28, 2025, \nwhile the first-class letter was not returned. \n     The hearing on the Motion to Dismiss proceeded as scheduled.  Again, \nClaimant failed to appear at the hearing.  But Respondents appeared through \ncounsel and argued for dismissal under the foregoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n     After  reviewing  the  record  as a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1.    The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2.    The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3.    The evidence preponderates that Claimant has failed to prosecute \nhis claim under AWCC R. 099.13. \n4.    The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial \nbenefits  is  hereby  dismissed  without  prejudice  under  AWCC  R. \n099.13. \n\nMUPENE – H405016 \n \n5 \n \nIII.  DISCUSSION \n     AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe dismissed for want of prosecution, the Commission may, upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 \n(1996). \n     As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n     No Form AR-C has been filed in this case.  That is the means for filing a \n“formal claim.”  While a Form AR-1 was filed in this case, that does not suffice to \ninstigate a claim.  I recognize, however, that other means exist to file a claim for \ninitial benefits other than a Form AR-C.  In Cook v. Southwestern Bell Telephone \nCompany,  21  Ark.  App.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of \nAppeals discussed the minimum requirements necessary for correspondence to \nthe Commission to constitute a claim for additional compensation for the purpose \nof  tolling  the  applicable  Statute  of  Limitations.    There,  the  court  held  that  an \n\nMUPENE – H405016 \n \n6 \n \nattorney's correspondence notifying the Commission that he has been employed \nto assist a claimant in connection with unpaid benefits is sufficient to state a claim \nfor additional compensation where the correspondence also lists the claimant's \nname, the employer's name and the Commission file number.  See also Garrett v. \nSears  Roebuck  and  Company, 43 Ark. App. 37, 858 S.W.2d 146 (1993).  My \nreview of the Commission’s file discloses a document sufficient to constitute a \nclaim for initial benefits under Cook, supra.  That document is Claimant’s August \n14, 2024, correspondence—discussed above. \n     As shown by the evidence recounted above, (1) the parties were provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon; and (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the May 2, 2025, hearing to argue against its \ndismissal)  since  August  23,  2024.    Thus,  the  evidence  preponderates  that \ndismissal is warranted under Rule 13. \n     That leaves the question of whether the dismissal of the claim should be \nwith or without prejudice.  The Commission possesses the authority to dismiss \nclaims with prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23 Ark. App. \n137, 744 S.W.2d 402 (1988).  The Commission and the appellate courts have \nexpressed  a  preference  for  dismissals  without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,  75  Ark.  249,  629  S.W.2d  284  (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  Based on \n\nMUPENE – H405016 \n \n7 \n \nthe foregoing, I agree and  find that the dismissal of  this claim should be and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n     In accordance with the Findings of Fact and Conclusions of Law set forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n                              ________________________________ \n                              O. MILTON FINE II \n                              Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":9702,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H405016 JACOB MUPENE, EMPLOYEE CLAIMANT SHEARERS FOODS LLC, EMPLOYER RESPONDENT FARMINGTON CASUALTY CO., CARRIER RESPONDENT OPINION FILED MAY 6, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 2, 2025, in Jonesboro, Craighead Count...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:40:19.197Z"},{"id":"alj-H301670-2025-05-06","awccNumber":"H301670","decisionDate":"2025-05-06","decisionYear":2025,"opinionType":"alj","claimantName":"Patricia Pearson","employerName":"Goodwill Industries Of Ark. Inc","title":"PEARSON VS. GOODWILL INDUSTRIES OF ARK. INC. AWCC# H301670 May 06, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PEARSON_PATRICIA_H301670_20250506.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PEARSON_PATRICIA_H301670_20250506.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301670 \n \nPATRICIA PEARSON, EMPLOYEE            CLAIMANT \n \nGOODWILL INDUSTRIES OF ARK. INC.,                         RESPONDENT \n \nATA WORKERS’ COMP SI TRUST/     \nRISK MANAGEMENT RESOURCES     RESPONDENT \n \n OPINION AND ORDER FILED May 6, 2025 \nThe Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, was held on April 29, 2025. \nClaimant was pro-se and failed to appear. \nRespondents were represented by Melissa Wood, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on the 29\nth\n day of April 2025, in Little \nRock, Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArk. Code Ann. 11-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.   \nThe claimant was pro se and failed to appear on her own behalf. The respondents were \nrepresented  by Melissa  Wood of  Little  Rock,  Arkansas,  who introduced 10  pages  of \ndocuments that were admitted into the evidentiary record.  \n The documents included a First Report of Injury, which provided that the claimant \ninjured herself by moving boxes while driving a forklift and making a turn. An AR-N Form \nprovided that the accident occurred on February 14, 2023, when claimant was driving a \nfork-lift and clipped a pole. Some initial medical benefits were paid. The claimant filed an \nAR- C Form on or about March 13, 2023, which provided that the claimant had suffered \na  neck injury  to  an already existing  C-spine  injury. The AR-2 Form  provided  that  the \n\nPatricia Pearson – H301670 \n2 \n \nclaimed accident occurred on February 14, 2023, and that the claim was denied due to \nno acute objective findings. A Motion to Dismiss was mailed on or about March 3, 2025, \nasking that the claim be dismissed pursuant to Ark. Code Ann 11-9-702 and Rule 099.13 \nof the Arkansas Workers’ Compensation Commission.   \n No  response  was  filed  by  the Claimant  so an appropriate  notice  of  a  Motion  to \nDismiss hearing was provided to the Claimant setting the hearing for April 29, 2025, at \n11:30 a.m., in Little Rock Arkansas.   \n A  hearing  was  held  on April 29, 2025, and  the  claimant failed  to  appear.  The \nRespondents  were  represented  by Melissa  Wood,  who  requested  that  the  matter  be \ndismissed pursuant to Rule 099.13 of the Arkansas Workers’ Compensation Commission \nand Ark. Code Ann. 11-9-702.   \nORDER \n Pursuant to the above statement of the case, as well as the documents entered \ninto the evidentiary record and statements by the Attorney for the Respondents, there is \nno alternative but to grant the Motion to Dismiss without prejudice pursuant to Rule 099.13 \nof the Arkansas Workers’ Compensation Commission and Ark. Code Ann. 11-9-702.   \nIT IS SO ORDERED. \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":2945,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301670 PATRICIA PEARSON, EMPLOYEE CLAIMANT GOODWILL INDUSTRIES OF ARK. INC., RESPONDENT ATA WORKERS’ COMP SI TRUST/ RISK MANAGEMENT RESOURCES RESPONDENT OPINION AND ORDER FILED May 6, 2025 The Hearing before Administrative Law Judge James D. Kennedy in Lit...","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:1"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T22:40:21.337Z"},{"id":"alj-H403795-2025-05-06","awccNumber":"H403795","decisionDate":"2025-05-06","decisionYear":2025,"opinionType":"alj","claimantName":"Paul Simpson","employerName":"Saint Jean Industries","title":"SIMPSON VS. SAINT JEAN INDUSTRIES AWCC# H403795 May 06, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SIMPSON_PAUL_H403795_20250506.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SIMPSON_PAUL_H403795_20250506.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H 403795 \nPAUL A. SIMPSON, EMPLOYEE     CLAIMANT \n \nSAINT JEAN INDUSTRIES, EMPLOYER                              RESPONDENT \n \nTRAVELERS PROPERTY CAS. OF AMERICA, \nCARRIER/TPA            RESPONDENT \n \n OPINION AND ORDER DATED MAY 6, 2025 \nThe Hearing before Administrative Law Judge James D. Kennedy in Clinton, \nArkansas, was held on April 30, 2025. \nThe claimant was pro-se and failed to appear. \nRespondents were represented by Guy Alton Wade, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A  hearing  was  held  in  the  above  styled  matter  on the 30\nth\n day  of April 2025, in \nClinton Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArk. Code Ann. 11-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.   \nThe claimant was pro se and failed to appear on his own behalf. The respondents were \nrepresented  by Guy  Alton  Wade, Arkansas,  who introduced  thirteen  (13)  pages  of \ndocuments which were admitted into the evidentiary record.   \n The documents  included  a  First  Report  of  Injury  which  provided  the  employee \ncontended that he had lifted an automobile part off a rack and then turned, when he felt \na pop in his back on June 2, 2024. A Form C was filed which provided that the accident \noccurred on June 2, 2024.  A Form AR- 2, dated June 17, 2024, stated there was no injury \nper  statutory  definition and  the  carrier  was  awaiting  medical  records.  A  letter  from  the \nRespondent’s attorney along  with statements  at  the  time  of  the  hearing provided the \n\nPaul A. Simpson – H403795 \n2 \n \ndiscovery propounded to the Claimant on June 28, 2025, was never answered. However, \nthe Respondents did respond to the Claimant’s discovery on or about August 12, 2024.  \nThe Claimant had been previously represented by Mark Alan Peoples, who was allowed \nto  withdraw  by  an  Order  of  the  Full  Commission, dated  February  12,  2025. The \nRespondents filed a Motion to Dismiss by letter dated February 20, 2025, and asked that \nthe  matter  be  dismissed  for  lack  of  prosecution, stating  that discovery  remained \noutstanding.   \n No  response  was  filed  by  the  Claimant  so an appropriate  notice  of  a  Motion  to \nDismiss hearing was provided to the Claimant setting the hearing for April 30, 2025, at \n10:00 a.m., in Clinton, Arkansas.   \n A  hearing  was  held  on April 30, 2025, and  the  claimant failed  to  appear.  The \nRespondents were represented by Guy Alton Wade, who requested that the matter be \ndismissed pursuant to Rule 099.13 of the Arkansas Workers’ Compensation Commission \nand Ark. Code Ann. 11-9-702.    \nORDER \n Pursuant to the above statement of the case, as well as the documents entered \ninto the evidentiary record and statements by the attorney for the Respondents, there is \nno alternative but to grant the Motion to Dismiss without prejudice pursuant to Rule 099.13 \nof the Arkansas Workers’ Compensation Commission and Ark. Code Ann. 11-9-702.   \nIT IS SO ORDERED. \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":3175,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H 403795 PAUL A. SIMPSON, EMPLOYEE CLAIMANT SAINT JEAN INDUSTRIES, EMPLOYER RESPONDENT TRAVELERS PROPERTY CAS. OF AMERICA, CARRIER/TPA RESPONDENT OPINION AND ORDER DATED MAY 6, 2025 The Hearing before Administrative Law Judge James D. Kennedy in Clinton, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:40:23.411Z"},{"id":"alj-H407406-2025-05-02","awccNumber":"H407406","decisionDate":"2025-05-02","decisionYear":2025,"opinionType":"alj","claimantName":"Rita Strother","employerName":"Wal-Mart Associates, Inc","title":"STROTHER VS. WAL-MART ASSOCIATES, INC. AWCC# H407406 May 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/STROTHER_RITA_H407406_20250502.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STROTHER_RITA_H407406_20250502.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        CLAIM NO.: H407406 \n \nRITA L. STROTHER,   \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nWAL-MART ASSOCIATES, INC.,  \nSELF-INSURED EMPLOYER                                                                               RESPONDENT                                                                                                  \n \n        \n                                              OPINION FILED MAY 2, 2025    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant, Pro Se, did not appear at the hearing. \n \nRespondents represented by the Honorable Rick Behring, Jr., Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis  matter  comes  before  the  Commission pursuant  to  a motion  to dismiss filed by the \nRespondents.  A hearing on the motion was conducted on April 22, 2025, in Little Rock, Arkansas.  \nThus, presently the sole issue for determination is whether this claim should be dismissed due to \nthe Claimant’s failure  to prosecute it  under Ark.  Code  Ann.  §11-9-702 (Repl.  2012),  and/or \nArkansas Workers’ Compensation Commission Rule 099.13. \n The record consists of the April 22, 2025, hearing transcript and documentary evidence.   \nIn that regard, Commission’s Exhibit 1 includes seven (7) actual pages, which has been marked \naccordingly, and Respondents’ Exhibit 1 consisting of twenty-seven (27) numbered pages was \nmarked as thus so.   \n Reasonable notice of the dismissal hearing was had on all the parties in the manner  \nset by applicable law.   \nNo testimony was taken at the hearing.  \n\nSTROTHER – H407406 \n \n \n2 \n \n                        Background \nThe record reflects the following procedural history: \n On November 13, 2024, the Claimant filed a Form AR-C, with the Commission, alleging \nthat she sustained an accidental injury, on October 23, 2024, while working for the respondent-\nemployer.  According  to  this document, the Claimant allegedly sustained an injury to  her left \nelbow, the form of tennis elbow, as a result of performing her employment duties.  Per this form, \nthe Claimant requested only initial benefits, in the form of temporary total disability compensation \nand medical expenses.    \nThe Respondents initially filed a Form AR-2 on November 15, 2024, with the Commission \naccepting  this  as  a “medical  only  claim.” However,  on  November  25,  the  respondent-employer \nfiled  an  amended  Form  AR-2  controverting  the  claim  in  its  entirety.  Per  this document,  the \nRespondents took the following position: “Claim is being controverted.  Respondents dispute that \nthe  associate  sustained  a  compensable  injury  arising  out  of  and in the  course  and  scope  of \nemployment.”      \nSince the filing of the Form AR-C, the Claimant has failed to prosecute or otherwise pursue \nher claim for workers’ compensation benefits.  Specifically, after filing her  claim  for  initial \ncompensation, the Claimant has made no bona fide request for a hearing with respect to her claim.   \nAs a  result,  on  February  18,  2025,  the  Respondents  filed  with  the Commission a \nRespondents’ Motion to  Compel  or  Dismiss  and  Incorporated  Brief  in  Support, along  with  a \ncertificate of service to the Claimant.  Per this verification, the Respondents served a copy of the \nforegoing pleading on the Claimant by depositing a copy of it in the United States Mail to different \naddress listed with the Commission.   \n\nSTROTHER – H407406 \n \n \n3 \n \nSubsequently,  on February  25,  2025, I wrote to  the  Claimant  and requested  a written \nresponse to the motion within twenty (20) days.  Said letter was sent to the Claimant by both first-\nclass mail and certified mail to the address listed by the Claimant with the Commission.  Said letter \nwas sent via the United States Postal Service.  \nPer  tracking  information  received  from  the  Postal  Service, on  February  27,  2025, the \ndismissal hearing notice sent by certified mail to the Claimant was delivered to her home address \nas listed above and left with an individual.  However, the signature of the recipient of said letter is \nillegible.  Regarding the letter sent by first-class mail, it has not been returned to the Commission.   \nMy  office  sent  a Notice of  Hearing to  the  parties on March  18, 2025, scheduling  the \ndismissal hearing for April 22, 2025.   Said hearing notice was sent to the Claimant by both first-\nclass and certified mail to the same address as before.   \nPer tracking information received from the United States Postal Service, the hearing notice \nsent via certified mail was delivered to the Claimant’s home on March 20, 2025, and left with an \nindividual.  Again, the signature of the recipient taking delivery of this item is illegible.  Yet, the \nnotice sent  by first-class mail has not been returned to  the  Commission.  Thus,  the evidence \npreponderates that reasonable notice of the dismissal hearing was made upon the Claimant.  \nTherefore, the dismissal hearing was conducted on the Respondents’ motion to dismiss this \nclaim as formerly scheduled.  Despite having received notice of the dismissal hearing, the Claimant \ndid not appear at the hearing.  However, the Respondents appeared at the hearing through their \nlawyer.  The Respondent’s counsel argued, among other things, for dismissal of this claim because \nthe  Claimant  has made  no bona fide  request for  a hearing or taken  any action to prosecute or \notherwise resolve her claim since the filing of the Form AR-C in November 2024.  Specifically, \n\nSTROTHER – H407406 \n \n \n4 \n \nthe attorney for Respondents moved for dismissal of this claim under the authority of Ark. Code \nAnn. §11-9-702, and/or Commission Rule 099.13.   \n            Adjudication  \nThe statutory provision and Arkansas Workers’ Compensation Rule applicable to the \nRespondents’ motion for dismissal of this claim for initial workers’ compensation benefits are \noutlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nCommission Rule 099.13 provides:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \nThe evidence shows that the Claimant has failed to respond to the written notices of this \nCommission, and she did not appear at the hearing to object to the motion.  Moreover, since the \nfiling of the Form AR-C, which was done in November 2024, the Claimant has not made a bona \nfide request for a hearing with respect to her claim.   \n\nSTROTHER – H407406 \n \n \n5 \n \nConsidering all the foregoing, I am compelled to conclude that the Claimant has abandoned \nher claim for workers’ compensation benefits.  Based on all the aforementioned reasons, I find that \nthe Respondents’ motion to dismiss this claim is warranted.  Therefore, pursuant to Commission \nRule 099.13, this claim for initial benefits is hereby respectfully dismissed for want of prosecution.  \nSaid dismissal  is without  prejudice, to  the  refiling of  this  claim within  the limitation  period \nspecified by law.   \nConsideration of the claim being dismissed under Ark. Code Ann. §11-9-702 (a) (4) (Repl. \n2012) has been rendered moot.  \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. On  November  13,  2024,  the  Claimant  filed  a Form  AR-C with  the \nCommission in  this  matter  asserting  her entitlement to initial workers’ \ncompensation benefits due to an accidental injury to her elbow occurring on \nOctober 23, 2024. \n \n3. Since the filing of the Form AR-C, the Claimant has not made a bona fide \nrequest for a hearing.    \n \n4. The  Respondents  filed  a motion  to  dismiss  with  the  Commission  on \nFebruary 18, 2025, asking that the within claim be dismissed due to a lack \nof prosecution. \n \n5.         Reasonable notice of the motion to dismiss and hearing was had on all the \nparties.  \n \n6.        The evidence preponderates that the Respondents’ motion to dismiss this  \n            claim for want of prosecution is warranted.   \n \n7.        That the Respondents’ motion to dismiss is granted pursuant to Commission      \n\nSTROTHER – H407406 \n \n \n6 \n \nRule 099.13, without prejudice,  to  the  refiling  of  the  claim  within  the \nlimitation periods specified by law.   \n \n8.       A determination with respect to the issue for dismissal of this claim pursuant  \n          to Ark. Code Ann. §11-9-702 (a)(4) (Repl. 2012) has been rendered moot.   \n \nORDER \nIn accordance with the foregoing findings of fact and conclusions of law, this claim is \nhereby dismissed without prejudice, pursuant to Commission Rule 099.13 to the refiling of it \nwithin the specified limitation period.  Consideration of this claim being dismiss under Ark. \nCode Ann. §11-9-702 is moot.            \nIT IS SO ORDERED. \n   \n                                  \n                                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":10862,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H407406 RITA L. STROTHER, EMPLOYEE CLAIMANT WAL-MART ASSOCIATES, INC., SELF-INSURED EMPLOYER RESPONDENT OPINION FILED MAY 2, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, Arkansas. The Claimant, Pro Se,...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:17.028Z"},{"id":"alj-H303158-2025-05-01","awccNumber":"H303158","decisionDate":"2025-05-01","decisionYear":2025,"opinionType":"alj","claimantName":"Timothy Johnson","employerName":"Ark. Dept. Of Corr","title":"JOHNSON VS. ARK. DEPT. OF CORR. AWCC# H303158 May 01, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Johnson_Timothy_H303158_20250501.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Johnson_Timothy_H303158_20250501.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303158 \n \n \nTIMOTHY JOHNSON, EMPLOYEE CLAIMANT \n \nARK. DEPT. OF CORR., \nEMPLOYER RESPONDENT/APPELLANT \n \nPUBLIC EMPLOYEE CLAIMS DIV., \nCARRIER/TPA RESPONDENT/APPELLANT \n \nSURVIVAL FLIGHT, INC.,     INTERVENOR/APPELLEE \n \n \nOPINION FILED MAY 1, 2025 \n \nAppeal from  Medical  Cost  Containment  Division (“MCCD”)  of  the  Arkansas \nWorkers’ Compensation Commission (“AWCC”).  Submitted  on  the  record \nto Chief Administrative Law Judge O. Milton Fine II on February 25, 2025. \n \nClaimant, pro se, excused from participation. \n \nRespondents/Appellants represented  by  Mr. Robert  H.  Montgomery,  Attorney  at \nLaw, Little Rock, Arkansas. \n \nIntervenor/Appellee  represented  by  Ms. April  C.  Cotton,  Attorney  at  Law,  Little \nRock, Arkansas. \n \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the record  as  an  appeal  to \nthe  undersigned  from  the MCCD  under  AWCC  R.  099.30  Part  III(A)(3)-(4).   A \ntelephone conference took place on November 12, 2024.  The Scheduling Order \nentered that  same  day  pursuant  to  the  conference  has  been  made  part  of \nstipulated   record   (see infra)   in   this   case.      Respondents/Appellants and \nIntervenor/Appellee agreed  that  no  hearing  or  oral  argument  was  necessary.  \n\nJOHNSON – H303158 \n \n2 \n \nTherefore, the order set out a briefing schedule and provided that the parties were \nto stipulate as to the record and issues.  They did so. \nStipulations \n Through  their  joint filing  on  January 22, 2025,  the  parties have  stipulated\n1\n \nto the following: \n1. On  May  8,  2023, Respondent/Appellee Arkansas  Department  of \nCorrections (“ADC”) employee  Timothy  Johnson  (“Claimant”)  was \nthrown from a horse and suffered bodily injuries. \n2. Intervenor/Appellee Survival Flight, Inc. (“Survival Flight”) was called \nto   the   scene   by   Newport   Fire   Unit   304   to   provide   care   and \ntransportation. \n3. On the date of the injury, Survival Flight was notified of the need for \nits  services  at  approximately  7:25  a.m.,  arrived  on  scene  at  7:56 \na.m.,  and  transported  Claimant  to  St.  Bernard  Medical  Center  in \nJonesboro, Arkansas at 8:31 a.m. \n4. Survival  Flight provided  medical  care to  Claimant,  including  but  not \nlimited to the stabilizing of his injured extremity, the monitoring of his \nvitals,  and  the  administering  of  300mcg  of  fentanyl  in  multiple \nintravenous doses. \n \n \n1\nProposed Stipulation No. 12 reads:  “This matter has been assigned to \nChief Administrative Law Judge Minton O. Fine [sic].”  This is unnecessary and \nthus will not be included. \n\nJOHNSON – H303158 \n \n3 \n \n5. Survival  Flight submitted  a  bill  to  Systemedic  for  $44,130.86,  of \nwhich   $21,273.00   was   paid   by   Respondent/Appellant Public \nEmployee Claims Division (“PECD”). \n6. Survival   Flight timely   appealed   this   short   pay and   requested \nreconsideration of this decision on August 18, 2023. \n7. PECD responded  to  the  request  for  reconsideration  and  upheld  its \nprevious   decision   on   the   grounds   that   the   charges   were   not \nreasonable. \n8. MCCD  performed  a  desk  audit  on  August  31,  2023,  finding  that an \nadditional $22,188.17 was owed to Survival Flight and scheduled an \nadministrative review of the dispute of partial payment to determine \nwhether Survival  Flight was  also  owed  an  eighteen  percent  (18%) \npenalty pursuant to AWCC R. 099.30 Part I(I)(7)-(8). \n9. PECD responded to MCCD’s audit and letter and disputed that Rule \n30  applied  to Survival  Flight on  the  grounds  that Survival  Flight is \nnot a “Provider” under the rule and that its charged amount for the \nservices provided to Claimant on May 8, 2023, was not reasonable. \n10. On  April  8,  2024,  MCCD  issued  its  Administrative  Review  Order, \nwhich  included  the  following  findings:    (1) Survival  Flight is  a \nProvider  under  Rule  30;  (2)  Federal  law  did  not  preempt  the \nauthority of MCCD to set the reimbursement rates for air ambulance \n\nJOHNSON – H303158 \n \n4 \n \ncompanies  operating  in  Arkansas;  (3)  the  annual  survey  performed \nby  MCCD  was  sufficient  to  determine  the  allowable  rates  for  air \nambulance  providers;  and  (4)  the  amount  ordered  to  be  paid  to \nSurvival Flight by PECD was reasonable. \n11. PECD  filed a  notice  of  appeal  on  May  24,  2024,  in  which  they \nappealed the above findings/conclusions by MCCD. \nIssues \n In  their  January  22,  2025,  filing,  the  parties  listed  Issues  2-7 infra as  the \nquestions to be presented to the undersigned on appeal.  Survival Flight has led \noff its brief, however, with a preliminary argument not covered under one of those \nquestions.  But Ark. Code Ann. 11-9-705(a)(1) (Repl. 2012) provides: \nIn  making  an  investigation  or  inquiry  or  conducting  a  hearing,  the \nWorkers’  Compensation  Commission  shall  not  be  bound  by \ntechnical  or  statutory  rules  of  evidence  or  by  technical  or  statutory \nrules  of  procedure,  except  as  provided  by  this  chapter,  but  may \nmake  such  investigation  or  inquiry,  or  conduct  the  hearing,  in  a \nmanner that will best ascertain the rights of the parties. \n \nI  find  that  this  provision grants  me  the  latitude  to address  this.    That  said,  the \nfollowing issues are hereby presented for determination: \n1. Whether  the  instant  appeal  is  timely  under  AWCC  R.  099.30 Part \nIII(A)(3). \n2. Whether  the  decisions  of  the  former  administrator  of  MCCD,  dated \nApril 5, 2024, and May 8, 2024, properly applied the law to the facts \nof this case. \n\nJOHNSON – H303158 \n \n5 \n \n3. Whether  the  decisions  of  the  former  administrator  of  MCCD,  dated \nApril 5, 2024, and May 8, 2024, should be affirmed or reversed. \n4. Whether AWCC has jurisdiction to settle this dispute. \n5. Whether AWCC’s authority in this area is preempted by federal law. \n6. Whether Survival Flight is a “Provider” under AWCC R. 099.30 Part \nI(F)(58). \n7. Whether  the  total  amount  billed  by Survival  Flight for  transporting \nClaimant  on  May  8,  2023,  is  reasonable  under  Arkansas  workers' \ncompensation law. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. Stipulations Nos.  1-11, supra, are  reasonable  and  are  hereby \naccepted. \n3. This appeal is timely under AWCC R. 099.30 Part III(A)(3). \n4. The actions taken by the former MCCD Administrator in the April 5, \n2024, Administrative Review Order and May 8, 2024, Administrative \n\nJOHNSON – H303158 \n \n6 \n \nReview  Reconsideration  Order concerning Survival Flight’s bill for \nair  ambulance  services  furnished  Claimant  on  May  8,  2023,  along \nwith PECD’s responsibility for said bill, are preempted by 49 U.S.C. \n§ 41713(b)(1). \n5. The former MCCD  Administrator’s  April  5,  2024,  Administrative \nReview    Order    and    May    8,    2024,    Administrative    Review \nReconsideration Order are hereby reversed. \n6. Because   of   Findings/Conclusions   Nos.   4   and   5, supra,   the \nremaining issues are moot and will not be addressed. \nIII.  RECORD ON APPEAL \n The  appellate  record  consists  of  the  following:    the  four-page  Notice  of \nAppeal  filed  by  Respondents/Appellants  on  May  24,  2024,  with  an  attachment \nthereto captioned “Respondent[s’] Documentary Exhibit,” consisting of a one-page \nindex  and  53  numbered  pages  thereafter;  the  four-page  pleading  captioned \n“Stipulated Record and Questions Presented,” filed on January 22, 2025; the 13-\npage   brief   of   Respondents/Appellants   filed   on   January   22,   2025,   with   six \nexhibits/attachments  thereto  totaling  79  pages;  and  the  seven-page  brief  of \nIntervenor/Appellee  filed  on  February  27,  2025.    These  documents  have  been \nblue-backed as the appellate record and, pursuant to Sapp v. Tyson Foods, Inc., \n2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, have been served on the parties in \nconjunction with this opinion. \n\nJOHNSON – H303158 \n \n7 \n \nIV.  PROCEDURAL HISTORY \n On  May  8,  2023,  Claimant,  an  employee  of  Respondent/Appellant ADC, \nwas injured at work when he was thrown from a horse.  The local fire department \nthat  initially  treated  Claimant  summoned  Survival  Flight  to  the  scene,  which \ntransported  him  by  helicopter  from  Newport,  Jackson  County,  Arkansas,  to a \nhospital  in Jonesboro,  Craighead  County,  Arkansas.    The  services  furnished  by \nSurvival  Flight  to  Claimant  consisted  not  only  of  the  transportation,  but  medical \nservices  including the  stabilizing  of  his  injured  extremity,  the  monitoring  of  his \nvitals, and the administering of 300mcg of fentanyl in multiple intravenous doses. \n For  the  foregoing,  Survival  Flight  submitted  a  bill  for  $44,130.86.    PECD \ninstead  paid  $21,273.00—which  it has represented  constituted  three  times  the \napplicable Medicare reimbursement rate—on the recommendation of Systemedic, \nits  bill  review  company.    In  response  to  this,  Survival  Flight  on August  18,  2023, \nfiled a timely appeal to MCCD of this short pay and requested reconsideration of \nthis.  PECD responded to the request for reconsideration by affirming its previous \ndecision on the basis that the charges were not reasonable. \n The  next  stage  of  this  case  began  on  August  31,  2023,  when MCCD \nconducted a desk audit\n2\n in which it found that an additional $22,188.17 was owed \nto  Survival  Flight.    MCCD scheduled  an  administrative  review  of  the  partial \n \n \n2\nThe undersigned has not been tasked with determining whether the desk \naudit itself was appropriate—whether under 29 U.S.C. § 41713(b)(1) or otherwise.  \nSee supra.  For that reason, its appropriateness will not be addressed. \n\nJOHNSON – H303158 \n \n8 \n \npayment dispute to   determine   whether Respondents/Appellants   should   be \nassessed an eighteen percent (18%) penalty under AWCC R. 099.30 Part I(I)(7)-\n(8) for  the  partial  payment.   PECD objected  to  these  actions  by MCCD on \nSeptember  28,  2023,  arguing,  inter  alia, that MCCD’s review was inappropriate \nbecause (a) under the Airline Deregulation Act (“ADA”), 49 U.S.C. § 41713(b)(1), \nstates are preempted from regulating prices charged by an air ambulance service; \nand  (b) Survival  Flight is not a “Provider” under Rule  30;  (c) the amount  that \nSurvival  Flight charged  was  not  reasonable.  Rejecting  these  contentions,  the \nthen-Administrator of MCCD (the “former Administrator”) issued an Administrative \nReview  Order  on  April  5,  2024.    Therein,  she found  that  Survival  Flight  is  a \n“provider”  under  AWCC  R.  099.30 Part I(F)(58)  because  during  his  flight  to \nJonesboro,  Claimant  “received  medical  care  from  practitioners”:    namely,  a \nregistered nurse and a paramedic.  In addition, she held “that the ADA and 49 \nU.S.C. § 41713 do not preempt the AWCC’s authority to set the reimbursement \nrate for air ambulance services . . . .”  Finally, the  former Administrator again \nfound that Survival  Flight  was  entitled  to  an  additional  $21,273.00, basing  the \ndecision  on MCCD’s method  of  determining  reasonable  ambulance  rates  by \nconducting  annual  surveys  of  Arkansas emergency  medical  services  (“EMS”) \nproviders  concerning  their  charges  in  the  state  for  each  Healthcare  Common \nProcedure Coding System (“HCPCS”) code (the codes billed by Survival Flight in \nthe  instant  case  were  one  unit  of  A0431  and  31  units  of  A0436—see  more  fully \n\nJOHNSON – H303158 \n \n9 \n \ninfra)  and  determining  the  averages  charged  for  each  code.  In  making  this  final \nfinding, the  former Administrator  ruled  that  this  annual  survey  method  was \nsufficient. \n PECD  filed  a  timely  request  for  MCCD  to  reconsider  its  April  5,  2024, \nAdministrative Review Order, arguing:  (1) Survival Flight is not a “provider” under \nRule 30; (2) MCCD’s authority to regulate air ambulance rates in the State of \nArkansas    is    preempted    by    the    ADA;    and    (3)    the    bill    submitted    by \nIntervenor/Appellee in this case was “wildly excessive,” and MCCD’s method of \ndetermining  “reasonable”  air  ambulance  rates  in  Arkansas—by  surveying  air \nambulance   companies—is   facially   unfair.      In   an Administrative   Review \nReconsideration Order  entered  on  May  8,  2024, the  former Administrator  denied \nthe request for a rehearing. \n PECD  filed  a  notice  of  appeal  on  May  24,  2024,  appealing the foregoing \nfindings/conclusions  by  MCCD as  contained  in  the  Administrative  Review  Order \nand Administrative Review Reconsideration Order. \nV.  DISCUSSION \nA. Timeliness of Appeal \n AWCC R. 099.30 Part III(A)(3) reads: \nAny   party   feeling   aggrieved   by   the   rehearing   order   of   the \nAdministrator   shall   have ten   (10)   days   from   the   date   of \nnotification to  appeal  the  ruling  to an  Administrative  Law  Judge  of \nthe  Arkansas  Workers’  Compensation  Commission.  Notice   of \nappeal  shall  be  filed  with  the  Clerk  of  the  Arkansas  Workers’ \nCompensation Commission. \n\nJOHNSON – H303158 \n \n10 \n \n \n(Emphasis  added)   At  the  outset,  Survival  Flight has  argued  that  the  Notice  of \nAppeal  filed  by PECD was  untimely.   The  evidence  at  bar  shows  that the \nAdministrative  Review  Reconsideration  Order  was purportedly sent  to  PECD  by \ncertified  mail  the  same  day  as  its  issuance—May  8,  2024—per  the  enclosure \nletter  that  accompanied  it.    But  this  was  not  the  case;  the  copy  of  the  envelope \nthat contained the letter and order itself show that not only was the order only sent \nvia  first-class  mail,  but  that  it  was  not  done  so  until  May  17,  2024.    Moreover, \nPECD  stamped  the  envelope  and  enclosure  letter  as  having  been  received  by  it \non May 21, 2024.  The undersigned hereby finds that PECD received both these \nitems as well as the order itself—which bears no date stamp—on May 21, 2024.  \nThe “date of notification” referenced above was thus May  21,  2024,  making  the \n10-day  deadline  for  the  filing  of  a  notice  of  appeal  May  31,  2024.    Therefore, \nPECD’s Notice of Appeal, filed on May 24, 2024, was clearly timely. \nB. Preemption \n Through   the   ADA,  enacted  in  1978,  Congress  sought  “to  promote \n‘efficiency, innovation, and low prices’ in the airline industry through ‘maximum \nreliance on competitive market forces and on actual and potential competition.’”  \nNw.,  Inc.  v.  Ginsberg,  572  U.S.  273,  280 (2014); Ferrell  v.  Air  EVAC EMS,  Inc., \n900  F3d  602  (8\nth\n Cir.  2018)(quoting  49  U.S.C. §§ 40101(a)(6),  12(A)).   This \nlegislation contains a provision—found at 49 U.S.C. § 41713(b)(1)—that reads: \n\nJOHNSON – H303158 \n \n11 \n \nPREEMPTION.   Except  as  provided  in  this  subsection,  a  State, \npolitical  subdivision  of  a  State,  or  political  authority  of  at  least  2 \nStates   may   not   enact   or   enforce   a   law,   regulation,   or   other \nprovision having the force and effect of law related to a price, route, \nor service of an air carrier that may provide air transportation under \nthis subpart. \n \nPer the Supreme Court, this provision was added “in  order  to ‘ensure  that  the \nStates   would   not   undo   federal   deregulation   with   regulation   of   their   own.’”  \nGinsberg, 572 U.S. at 280 (quoting Morales v. Trans World Airlines, Inc., 504 U.S. \n374, 378 (1992)). \n The evidence shows that Survival Flight is an air ambulance provider.  As \nsuch, it is an “air carrier” under 49 U.S.C. § 40102(a)(2).   In Ferrell, supra,  the \nEighth Circuit Court of Appeals was called upon to determine if a passenger’s \nputative   class   action   against   an   air   ambulance   provider,   originally   filed   in \nArkansas state  court  before  being  removed  to  federal  court, involved  claims  that \nwere  preempted  by  the  ADA  provision  in  question.    The  plaintiff/appellant  took \nissue with the fact that that Air EVAC EMS, Inc. (“Air EVAC”), the air ambulance \nprovider,  billed  him  $30,083.26  for  a  41-mile  transport  by  helicopter  from  one \nhospital to another.  His health insurer only paid $1,000.00 of the bill, leaving him \nowing the balance thereof.  Three causes of action were raised:  (1) a declaratory \njudgment   that   any   contract   between   Air   EVAC   and   class   members   was \nunenforceable  because  it  lacked  an  essential  price  term;  (2)  damages  under  the \nArkansas Deceptive Trade Practices Act, Ark. Code Ann. §§ 4-88-101 et. seq., for \nhiding or not disclosing the price for the flight until after it was completed; and (3) \n\nJOHNSON – H303158 \n \n12 \n \na  declaratory  judgement  that  Air  EVAC  could not  seek  restitution  against  class \nmember because it had “unclean hands.”  The federal district court found that all \nthree of these claims were preempted under the ADA, holding that not only were \nthey “related  to  a  price,  route,  or  service  of  an  air  carrier  that  may  provide  air \ntransportation” (the language in the preemption provision), but they were “in the \nheartland of price.”  Ferrell,  900  F.3d  at  606.    The  Eighth  Circuit  affirmed  the \nholding  of  the  district  court,  finding  all  three  causes  of  action  to  be  preempted.\n3\n  \nId. \n In  so  doing,  the appellate  court in Ferrell found  that  while  all  three  claims \nwere preempted, the one that was most obviously so was (2) above, which deals \nwith the Arkansas Deceptive Trade Practices Act.  The court wrote that “[t]his \nclaim  seeks  to  impose  a  state  statutory  price  disclosure  obligation  beyond  the \nscope  of  any  agreement  Air  EVAC  had  with  Ferrell.    It  obviously  relates  to  Air \nEVAC’s price and service.”  Ferrell, 900  F.3d  at  606.    In  the  matter  at  hand, \nMCCD  was  regulating  the price  that  Survival  Flight,  an  air  carrier, may charge—\nand  that  PECD  must  pay—for  a  particular  air  ambulance  service.    Nothing, \nfrankly, could be more “in the heartland of price” than that.  It is thus clear that \nMCCD was preempted from the actions it took in the April 5, 2024, Administrative \n \n \n3\nOther  circuits  have  reached  similar  results.   See,  e.g.,  Air  EVAC  EMS, \nInc., v. Sullivan, 8 F.4\nth\n 346 (5\nth\n Cir. 2021); Scarlett v. Air Methods Corp., 922 F.3d \n1053  (10\nth\n Cir.  2019); Air  EVAC  EMS,  Inc.,  v.  Cheatham,  910  F.3d  751  (4\nth\n Cir. \n2018); Bailey v. Rocky Mtn. Holdings LLC, 889 F.3d 1259 (11\nth\n Cir. 2018). \n\nJOHNSON – H303158 \n \n13 \n \nReview  Order and  May  8,  2024,  Administrative  Review  Reconsideration  Order, \npurportedly under the authority of AWCC R. 099.30. \n In making  this holding, the  undersigned notes that MCCD employed  the \nfollowing analyses in rejecting the preemption argument by PECD: \nThe  Administrator  also  finds  that  the  ADA  and  49  U.S.C. § 41719 \ndo not preempt the AWCC’s authority to set the reimbursement rate \nfor  air  ambulance  services  and  the  provider  is  due  reimbursement \nof  a  reasonable  amount  as  determined  by  the  AWCC.    Congress \nenacted  the  ADA  with  the  intention  that  it  would  regulate  the \nservices and airfares of airlines that provided scheduled passenger \nflights.  Such services include boarding, seating, and ticketing.  The \nADA  includes  a  pre-emption  provision,  codified  at  49  U.S.C. § \n41713, that says “a State . . . may not enact or enforce a law, \nregulation, or other provision . . . related to a price, route, or service \nof an air carrier . . . . \n \nEven if an air ambulance falls under the definition of “air carrier,” \nthe   regulation   of   reimbursement   rates   by   the   AWCC for   the \nservices of an air ambulance is “too tenuous, remote, or peripheral” \nto  the  original  intent  of  the  ADA  for  it  to  have  a  preemptive  effect.  \nSee  Morales.  It is clear that the ADA’s preemption provision was \nnot   intended   to   apply   to   air   ambulance   services.      The   air \nambulance  market  is  unlike  any  other  in  that  air  medical  patients \nhave no  control  over  the  choice of  transport  mode or  provider  and \nlittle influence on air ambulance markets. \n \nIn Ferrell, supra, a similar argument was raised before the Eighth Circuit: \nAcknowledging  that  common  law  fraud  and  statutory  consumer \nprotection   claims   were   preempted   in Morales and Wolens \n[American Airlines v. Wolens, 513 U.S. 219 (1995)], Ferrell argues \nthat  these  decisions  should  not  apply  to  the  unique  air-ambulance \nmarket.  He  asserts  that,  because  air-ambulance  providers  do  not \nface meaningful price competition and patients often do not control \nwhether  to  be  transported  by  an  air  ambulance,  applying  the  ADA \nto  these  fraud  claims  would  entrench  an  anti-competitive  market, \nnot   further   the   ADA's   purpose   of   promoting   efficiency   and \ncompetition.  But where  a  federal  statute  contains  an  express \n\nJOHNSON – H303158 \n \n14 \n \npreemption provision, we “focus on the plain wording of the clause, \nwhich  necessarily  contains  the  best  evidence  of  Congress’ pre-\nemptive  intent.”  Puerto  Rico  v.  Frankline  Cal.  Tax-Free  Tr.,  136 \nS.Ct.  1938,  1946,  195  L.Ed.  2d  298  (2016) (quotation  omitted).  \nHere,  the  ADA  preempts  state  law “related  to  a  price,  route,  or \nservice  of  an  air  carrier  that  may  provide  air  transportation  under \nthis subpart.”  49 U.S.C. § 41713(b)(1).  An air-ambulance operator \nsuch as Air EVAC is an “air carrier.”  See 49 U.S.C. § 40102(a)(2); \nWatson [v. Air Methods Corp., 870 F.3d [812, 814]; Schneberger v. \nAir  EVAC  EMS,  Inc.,  No. Civ-16-843-R,  2017  U.S.  Dist.  LEXIS \n36701,  2017  WL 1026012,  at  *2  &  n.3  (W.D.  Okla.  Mar. 15,  2017) \n(collecting authorities). \n \n“[W]hen the statute's language is plain, our inquiry into preemption \nboth begins  and  ends  with  the  language  of  the  statute  itself.”  \nEagleMed LLC v. Cox, 868 F.3d 893, 903 (10\nth\n Cir. 2017).  We may \nnot  refuse  to  apply  ADA  preemption  merely  because  we  do  not \nbelieve  it  would  be  sound  public  policy  to  enforce  the  statute \nCongress enacted. \n \n In Morales, supra, cited by the former Administrator above in overruling the \npreemption argument, the Supreme Court wrote: \nIn  concluding  that  the  NAAG [National  Association  of  Attorneys \nGeneral] fare advertising guidelines are pre-empted, we do not, as \nTexas  contends,  set  out  on  a  road  that  leads  to  pre-emption  of \nstate  laws  against  gambling  and  prostitution  as  applied to  airlines.  \nNor  need  we  address  whether  state  regulation  of  the  nonprice \naspects  of  fare  advertising  (for  example,  state  laws  preventing \nobscene depictions) would similarly “relate to” rates; the connection \nwould  obviously  be  far  more  tenuous.  To  adapt  to  this  case  our \nlanguage  in Shaw [v.  Delta  Airlines,  463  U.S.  85  (1983)], “some \nstate  actions  may  affect  [airline  fares]  in  too  tenuous,  remote,  or \nperipheral a manner” to have pre-emptive effect.  463 U.S. at 100, \nn.21.   In  this  case,  as  in Shaw, “the  present  litigation  plainly  does \nnot present a borderline question,  and  we express  no  views  about \nwhere it would be appropriate to draw the line.” \n \n Similarly,  the  present  matter  “plainly  does  not  present  a  borderline \nquestion.”  This is not something “tenuous, remote, or peripheral” to  the fares \n\nJOHNSON – H303158 \n \n15 \n \ncharged by an air ambulance provider—an air carrier providing air transportation, \nper the ADA preemption provision—like the examples given above by the Morales \nCourt.   The  former Administrator  explained in  detail the actions that  were being \ntaken by MCCD here: \nThe   AWCC   Medical   Fee   Schedule   contains   no   maximum \nallowances  for  ambulance  services.    Unlisted  medical  services  for \ninjured   Arkansas workers   are   to   be   reimbursed   reasonable \namounts  as  determined  by  the  AWCC.    Thus,  the  dispute  in  this \ncase    centers    on    determining    the    reasonable    amount    of \nreimbursement for the provider’s ambulance services provided to \nthe claimant on May 8, 2023. \n \nMCCD  determines  the  reasonableness  of  its  allowable  ambulance \nrates  by  conducting  annual  surveys  of  Arkansas  EMS  providers \nand basing its allowable rates on the average charges in the state \nfor  each  respective  HCPCS  code.    These  surveys  are  conducted \non  both  air  and  ground  ambulance  providers  and  the  allowable \nrates are segregated by air or ground. \n \nThe  survey  conducted  by  MCCD  shows  that  the  average  rate  for \nA0431 in May 2023 was $35,169.69 per unit.  AWCC Rule 099.30 \nprovides  that  when  an  AWCC  allowable  fee  is  greater  than  the \namount actually billed, the service shall be reimbursed at the lesser \nof  the  two  amounts.    In  this  case,  HCPCS  A0431  was  billed  at  a \nrate  of  $34,500.00,  which  is  lower  than  the  allowable  rate.    The \nAdministrator   finds   the   rate   of   $34,500.00   is   the   reasonable \nreimbursement amount for A0431 in this case.  Survey results also \nshow that the average charge for A0436 in May 2023 was $289.07 \nper   mile.      Therefore,   the   Administrator   finds   this   rate   is   the \nreasonable reimbursement amount for A0436 in this case. \n \n MCCD   determined   what   could   be   billed   for   HCPCS   codes   A0431 \n(“Ambulance service, conventional air services, transport, one way (rotary wing)”) \nand A0436 (“Rotary wing air mileage, per statute mile”) and the amounts for which \nPECD was responsible.  To repeat, this is “in the heartland of price” under Ferrell, \n\nJOHNSON – H303158 \n \n16 \n \nsupra.   The  actions  taken here by  the  former  Administrator  in  the  Administrative \nReview Order and Administrative Review Reconsideration Order on these matters \nconstitute the “undo[ing  of] federal deregulation with regulation of their own” that \nthe  Supreme  Court  in Morales and Ginsberg, supra,  warned  was  impermissible \nunder  the  ADA’s  preemption  provision.  For   the foregoing reasons, the \nundersigned is compelled to reverse these two orders. \nC. Remaining Issues \n Because  of  the  above  finding  regarding  preemption,  the  remaining  issues \nare moot\n4\n and will not be addressed. \nVI.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, the Administrator’s April 5, 2024, Administrative Review Order and May 8, \n2024, Administrative Review Reconsideration Order are hereby reversed. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n4\nIn Ferrell, supra, the Eighth Circuit explained what option(s) might remain \nfor  an  aggrieved  party  in  a  transaction  such  as  the  one  at  bar  to  get  their \ngrievance(s)  redressed,  including  perhaps an  action  for  breach  of  contract.    900 \nF.3d  at  608-10.    However,  such  cause(s)  of  action  are  outside  the scope  of  this \nappellate review and, consequently, will not be addressed herein.","textLength":27750,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H303158 TIMOTHY JOHNSON, EMPLOYEE CLAIMANT ARK. DEPT. OF CORR., EMPLOYER RESPONDENT/APPELLANT PUBLIC EMPLOYEE CLAIMS DIV., CARRIER/TPA RESPONDENT/APPELLANT SURVIVAL FLIGHT, INC., INTERVENOR/APPELLEE OPINION FILED MAY 1, 2025 Appeal from Medical Cost Containme...","outcome":"reversed","outcomeKeywords":["reversed:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:12.787Z"},{"id":"alj-H401191-2025-05-01","awccNumber":"H401191","decisionDate":"2025-05-01","decisionYear":2025,"opinionType":"alj","claimantName":"Lauren Beam","employerName":"Little Rock School District","title":"LAUREN A. BEAM VS. LITTLE ROCK SCHOOL DISTRICT AWCC# H401191 May 01, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BEAM_LAUREN_H401191_20250501.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BEAM_LAUREN_H401191_20250501.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H401191 \n \nLAUREN A. BEAM,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nLITTLE ROCK SCHOOL DISTRICT,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nARKANSAS SCHOOL BDS. ASS’N  \nWORKERS’ COMPENSATION TRUST/ \nARK. SCHOOL BDS. ASS’N \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \nOPINION FILED MAY 1, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS \nWITHOUT PREJUDICE \n \n \nHearing conducted on Wednesday, April 30, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Lauren A. Beam, pro se, of Little Rock, Pulaski County, Arkansas, did not \nappear at the hearing. \n \nThe respondents were represented by the Honorable Melissa Wood, Worley, Wood & Parrish, \nLittle Rock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Wednesday, April 30, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and Commission Rule 099.13 (2025 Lexis Replacement). \n        The claimant never retained an attorney to represent her in this claim, but she had requested, \nand the Commission granted, her one (1)-time-only change of physician (COP) request by order \nfiled February 26, 2024. Thereafter, when the claimant had taken no further action to pursue her \n\nLauren A. Beam, AWCC No. H401191 \n2 \n \nclaim, on March 3, 2025, the respondents filed with the Commission a motion to dismiss for lack \nof prosecution (MTD). (Respondents’ Exhibit 1 at 10-11). \n        Pursuant to the applicable law the Commission provided the claimant due and legal notice of \nboth the respondents’ MTD as well as notice of the subject hearing. (Commission Exhibit 1). The \nclaimant wrote the ALJ a letter dated March 19, 2025, which the Commission received and marked \nas filed on March 31, 2025. (Comms’n Ex. 2). In this letter the claimant wrote: “I do not anticipate \nany further issues or medical bills related to this claim. Additionally, I do not wish for this matter \nto proceed to a hearing, nor do I wish to be required to attend a hearing.” (Comms’n Ex. 2; RX1 \nat 13). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379, 192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nclaimant’s voluntary MTD. Rather than recite a detailed analysis of the record, suffice it to say the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has specifically advised the Commission in writing there exist no issues in her \nclaim subject to litigation and/or determination; and that she does not want to proceed to a hearing \non any issues in her claim, nor does she want to be required to attend a hearing. (Comms’n Ex. 2). \n        Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n\nLauren A. Beam, AWCC No. H401191 \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having received due  and  legal  notice  of the respondents’  MTD filed with  the \nCommission  on March  3,  2025,  as  well  as notice  of the  subject  hearing date, time,  and \nplace, the  claimant advised  the Commission  by  letter  dated  March  19,  2025,  which  was \nreceived and filed with the Commission on March 31, 2025, that no issues remained in her \nclaim; and that she did “not wish for this matter to proceed to a hearing, nor do I wish to \nbe required to attend a hearing.” (Comms’n Ex. 2). \n \n3. Therefore,  the unrebutted preponderance  of  the  evidence  compels the  decision the \nrespondents’ MTD filed March  3,  2025, should  be  and  hereby  is  GRANTED;  and this \nclaim  hereby  is  dismissed  without  prejudice  to  its refiling  pursuant  to  the  deadlines \nprescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and Commission Rule 099.13. \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nLauren A. Beam, AWCC No. H401191 \n4","textLength":5602,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401191 LAUREN A. BEAM, EMPLOYEE CLAIMANT LITTLE ROCK SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BDS. ASS’N WORKERS’ COMPENSATION TRUST/ ARK. SCHOOL BDS. ASS’N CARRIER/TPA RESPONDENT OPINION FILED MAY 1, 2025, GRANTING RESPONDENTS’ MOTION TO DIS...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:40:14.862Z"},{"id":"full_commission-H403662-2025-04-30","awccNumber":"H403662","decisionDate":"2025-04-30","decisionYear":2025,"opinionType":"full_commission","claimantName":"James Chapman","employerName":"White River Health System, Inc","title":"CHAPMAN VS. WHITE RIVER HEALTH SYSTEM, INC. AWCC# H403662 April 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Chapman_James_H403662_20250430.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Chapman_James_H403662_20250430.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H403662 \n \nJAMES L. CHAPMAN, EMPLOYEE    CLAIMANT \n \nWHITE RIVER HEALTH SYSTEM, INC.,  \nEMPLOYER                                                                           RESPONDENT \n \nSI ADMINISTRATOR/RISK MANAGEMENT \nRESOURCES, CARRIER/TPA                                              RESPONDENT \n \n \nOPINION FILED APRIL  30, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se \n \nRespondents represented by the HONORABLE KENNETH “CASEY” P.  \nCASTLEBERRY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed January 15, 2025. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission \nhas jurisdiction over this claim. \n  \n2. That an employer/employee/carrier relationship existed \non May 23, 2024, when the claimant sustained a \ncompensable injury to his right ring finger which the \nrespondents accepted as medical only.  \n \n\nChapman-H403662    2  \n \n \n3. The claimant earned an average hourly wage of $13.39 \nand worked a forty (40) hour week.  \n \n4. The respondents have paid the sum of $1,128.55 in \nmedical expenses.  \n \n5. That the claimant has failed to satisfy the required \nburden of proof to prove by a preponderance of the \nevidence that additional medical treatment is \nreasonable and necessary for the compensable ring \nfinger wound.  \n \n6. That the claimant has failed to satisfy the required \nburden of proof to prove by a preponderance of the \nevidence that he is entitled to temporary total disability \nfrom May 25, 2024, to a date to be determined. \n \n We have carefully conducted a de novo review of the entire record \nherein, and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence the findings of fact made by the Administrative Law Judge \nare correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the January 15, 2025 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n  \n  \n\nChapman-H403662    3  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2819,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H403662 JAMES L. CHAPMAN, EMPLOYEE CLAIMANT WHITE RIVER HEALTH SYSTEM, INC., EMPLOYER RESPONDENT SI ADMINISTRATOR/RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED APRIL 30, 2025 Upon review before the FULL COMMI...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.441Z"},{"id":"full_commission-H303140-2025-04-30","awccNumber":"H303140","decisionDate":"2025-04-30","decisionYear":2025,"opinionType":"full_commission","claimantName":"Julie Moore","employerName":"Greenbrier Nursing & Rehab Center","title":"MOORE VS. GREENBRIER NURSING & REHAB CENTER AWCC# H303140 April 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads//Moore_Julie_H303140_20250430.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Moore_Julie_H303140_20250430.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H303140 \n \nJULIE MOORE, EMPLOYEE    CLAIMANT \n \nGREENBRIER NURSING & REHAB  \nCENTER, EMPLOYER                                                          RESPONDENT \n \nINDEMNITY INSURANCE COMPANY OF \nNORTH AMERICA/ESIS, INC., CARRIER/TPA                     RESPONDENT \n \n \nOPINION FILED APRIL 30, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE ERIC NEWKIRK, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed December 3, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The AWCC has jurisdiction over this claim.  \n \n2. The previously-noted stipulations are accepted as fact.  \n \n3. The claimant failed to prove by a preponderance of the \nevidence that she suffered compensable injuries to her \nback/spin or hip by specific incident.  \n\nMoore-H303140    2 \n \n \n4. The claimant, thus, failed to prove by a preponderance \nof the evidence that she is entitled to the benefits \nsought.  \n \n5. The issue of determining the claimant’s average weekly \nwage is moot.  \n \n6. The claimant failed to prove by a preponderance of the \nevidence that she is entitled to an attorney’s fee. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence the findings of fact made by the Administrative Law Judge \nare correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the December 3, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite concurs. \n \n \n\nMoore-H303140    3 \n \n \nCONCURRING OPINION \n \n After my de novo review of the record, I concur with the majority \nopinion finding that the Claimant failed to prove by a preponderance of the \nevidence that she suffered compensable injuries to her back/spine or hip by \nspecific incident. I write separately for the benefit of the Claimant.  \n Claimant was employed with the Respondent for her first shift on \nApril 29, 2023. During her shift, the Claimant was seen moving a bed for a \npatient. While Claimant stated that she was in pain as a result of her \nemployment with the Respondent, specifically stating that she bumped into \nthe nurse’s station with a broken bed, there is insufficient evidence of an \nobjective injury as required by Ark. Code Ann. § 11-9-102(4)(D). A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty. Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002). Further, although diagnostic testing \nshowed some abnormalities in the Claimant’s lower back, there is \ninsufficient evidence to conclude those abnormalities resulted from any \nincident at the workplace. While the Claimant is a credible witness, I cannot \nsay that the evidence in the record is sufficient to meet the required burden \nof proof by a preponderance of the evidence that she suffered compensable \ninjuries to her back/spine or hip by specific incident.  \n\nMoore-H303140    4 \n \n \n  Accordingly, for the reasons set forth above, I must dissent. \n \n                                                            _____________________________             \n                                                        M. SCOTT WILLHITE, Commissioner","textLength":4231,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303140 JULIE MOORE, EMPLOYEE CLAIMANT GREENBRIER NURSING & REHAB CENTER, EMPLOYER RESPONDENT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA/ESIS, INC., CARRIER/TPA RESPONDENT OPINION FILED APRIL 30, 2025 Upon review before the ...","outcome":"denied","outcomeKeywords":["affirmed:2","granted:2","denied:3"],"injuryKeywords":["back","hip"],"fetchedAt":"2026-05-19T22:29:44.446Z"},{"id":"alj-H403086-2025-04-30","awccNumber":"H403086","decisionDate":"2025-04-30","decisionYear":2025,"opinionType":"alj","claimantName":"Marcus Johnson","employerName":"Collier Investments","title":"JOHNSON VS. COLLIER INVESTMENTS AWCC# H403086 April 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JOHNSON_MARCUS_H403086_20250430.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_MARCUS_H403086_20250430.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                 AWCC CLAIM NO.: H403086 \n \nMARCUS L. JOHNSON,  \nEMPLOYEE                                                                                                                 CLAIMANT                                                    \n \nCOLLIER INVESTMENTS d/b/a MANPOWER,  \nEMPLOYER                                                                                                            RESPONDENT  \n \nGRANITE STATE INSURANCE COMPANY, \nINSURANCE CARRIER                                                                                        RESPONDENT \n                                                                             \nGALLAGHER BASSETT SERVICES, INC., \nTHIRD PARTY ADMINISTRATOR (TPA)                                                         RESPONDENT \n                                                                                                                                                                                  \n                                               \nOPINION FILED APRIL 30, 2025    \n \nHearing  held  before Administrative Law Judge Chandra L.  Black, in Texarkana, Miller \nCounty, Arkansas. \n  \nThe Claimant, Pro Se, did not appear at the hearing. \n \nThe Respondents represented by the Honorable Rick Behring, Jr., Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis matter comes before the Commission pursuant to the Respondents’ motion to dismiss, \nwhich  they filed with  the  Commission on  February  11,  2025.    A  hearing was  conducted  on  the \nRespondents’ motion on April 8, 2025, in Texarkana, Arkansas.   \nAccordingly,  the  sole  issue  for determination  at  the  dismissal hearing was whether  this \nclaim should be dismissed due to the Claimant’s failure to prosecute it  in a timely manner pursuant \nto the provisions of Ark. Code Ann. §11-9-702 (a)(4), §11-9-702 (d) (Repl. 2012), and/or Arkansas \nWorkers’ Compensation Commission Rule 099.13. \n\nJOHNSON – H403086 \n \n2 \n \n The record consists of the April 8, 2025, hearing transcript and the documentary evidence \nheld therein.  Specifically, the documents admitted into evidence include Commission’s Exhibit 1, \nconsisting of eight (8) pages; and Respondents’ Exhibit 1, comprising nine (9) numbered pages of \npleadings, forms, and correspondence, relating to this claim.   \n No testimony was taken at the hearing. \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by   \nlaw.   \n        Discussion \nThe record reflects the following procedural history: \nThe Claimant filed  a  Form  AR-C  with the  Commission  on May  10,  2024,  asserting his \nentitlement  to Arkansas workers’  compensation  benefits. Per this  document, the Claimant \ndescribed the cause of his accidental injury essentially as follows: “I sustained injuries to the right \nside  of my face,  injuring  his  right  eye,  when I was  struck  by  a  piece  of  metal.”  He  alleged  an \ninjury  date  of  March  18,  2024.  The Claimant checked  off all the  boxes  for both initial and \nadditional workers’ compensation benefits.  Yet, at  that  time, the Claimant  made no bona  fide \nrequest for a hearing with respect to his claim.       \nSubsequently,  on December  9,  2024, the  Respondents filed  a  Form  AR-2  with  the \nCommission controverting the claim in its  entirety.  Specifically, per this document, the branch \nmanager wrote: “Claim denied. EE/employee is not an employee of Manpower.”   \nSince  the  filing  of  the  Form  AR-C  in  May  2024,  the  Claimant  has taken  no  action \nwhatsoever to prosecute or otherwise resolve his claim for workers’ compensation benefits. \nAs a result, on February 11, 2024, the Respondents filed with the Commission, a Motion \nto Dismiss and Incorporated Brief in Support.  This pleading was accompanied by a certificate of \n\nJOHNSON – H403086 \n \n3 \n \nservice confirming that the Respondents’ attorney served a copy of the foregoing pleading on the \nClaimant by mailing a copy thereof to him via the United States Postal Service.   \nI wrote the Claimant on February 14, 2025, notifying him of the Respondents’ motion to \ndismiss his claim due to a lack of prosecution.  This letter was sent via both certified mail and first-\nclass  mail to  the  address  the  Claimant  had  furnished  to  the  Commission. Per  this  letter,  the \nClaimant was given twenty (20) days from the date of the letter to file a response to the motion.  \nThe above letter  mailed  to  the  Claimant  by  first-class  mail  has  not  been  returned  to  the \nCommission.  However, on February 27, the letter mailed to the Claimant by certified mail was \nreturned to the Commission, stating, “Return to Sender – Not Deliverable as Addressed – Unable \nto Forward.”  \nThere was no response from the Claimant. \nOn  March 7, 2025, I  sent  a Notice  of  Hearing to  the  parties  notifying  them that I  had \nscheduled a hearing on the Respondents’ motion to dismiss.  I scheduled the dismissal hearing for \nTuesday, April 8, 2025, in Texarkana, Arkansas.   \nSaid notice was mailed to the Claimant by way of both certified and first-class mail.       \nOn March 18, the Postal Service returned the Claimant’s hearing notice to the Commission \nbecause they were unable to deliver this item to him.  However, the letter mailed to the Claimant \nvia first-class mail has not been returned to the Commission. The evidence thus preponderates that \nthe Claimant received notice of the hearing.    \nStill, there was no response from the Claimant.   \nHowever, the hearing on the Respondents’ motion to dismiss was held as scheduled.  The \nClaimant failed to appear at the hearing.  However, the Respondents appeared through counsel and \nargued that the case be dismissed without prejudice under Ark. Code Ann. §11-9-702 (a)(4), §11-\n\nJOHNSON – H403086 \n \n4 \n \n9-702 (d),  and Commission Rule  099.13 due to the Claimant’s failure to prosecute his claim.  \nSpecifically, counsel for the Respondents noted, among other things, that it is their position that   \nit has more than six (6) months after the filing of the Form AR-C, but the Claimant has never made \na bona fide hearing request.   \nAdjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable to the \nRespondents’ motion for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n\nJOHNSON – H403086 \n \n5 \n \nThe evidence shows that the Claimant has failed to respond to the written notices of this \nCommission; and he did  not  appear  at  the  hearing  to  object  to  the  dismissal.   Moreover, the \nClaimant has not made a bona fide request for a hearing since the filing of the Form AR-C, which \nwas done more than six (6) months ago.  Thus, all the foregoing establishes that dismissal of this \nclaim is warranted under the provisions of Ark. Code Ann. §11-9-702 (a) (4), §11-9-702 (d), and \nRule 099.13 of this Commission.  Said dismissal is without prejudice, to the refiling of this claim \nwithin the limitation period specified by law.   \n                                 FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. On May 10, 2024, the Claimant filed a Form AR-C with the Commission in \nthis matter asserting his entitlement to workers’ compensation benefits due \nto an accidental injury to his occurring on March 18, 2024. \n \n3. Since the  filing  of  the  Form  AR-C, more  than  six  (6)  months ago, the \nClaimant has not ever made a bona fide request for a hearing.    \n \n4. The  Respondents  filed  a Motion to Dismiss and Incorporated  Brief in \nSupport with the Commission on February 11, 2025, asking that the claim \nbe dismissed because the Claimant has never made a bona fide request for \na hearing and failed to prosecute his claim. \n \n5.         Reasonable notice of the motion to dismiss and hearing was had on all the \nparties.  However, the Claimant has failed to respond to the notices of this \nCommission and did not appear at the hearing to object to his claim being \ndismissed.   \n \n6.        The evidence preponderates that the Respondents’ motion to dismiss this  \n            claim for a lack of prosecution is warranted.   \n \n7.        That the Respondents’ motion to dismiss is hereby granted pursuant to Ark.  \nCode  Ann.  §11-9-702 (a)(4), §11-9-702 (d),  and  Rule 099.13 without \nprejudice, to the refiling of the claim within the specified limitation period.   \n\nJOHNSON – H403086 \n \n6 \n \nORDER \nIn accordance with the foregoing findings of fact and conclusions of law, this claim is  \nhereby dismissed without prejudice, pursuant to Ark. Code Ann. §11-9-702 and Commission Rule \n099.13 to the refiling of it within the specified limitation period.        \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":11128,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H403086 MARCUS L. JOHNSON, EMPLOYEE CLAIMANT COLLIER INVESTMENTS d/b/a MANPOWER, EMPLOYER RESPONDENT GRANITE STATE INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT GALLAGHER BASSETT SERVICES, INC., THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FIL...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:42:14.070Z"},{"id":"alj-H404582-2025-04-30","awccNumber":"H404582","decisionDate":"2025-04-30","decisionYear":2025,"opinionType":"alj","claimantName":"Kevin Martin","employerName":"Rock Region Metro","title":"MARTIN VS. ROCK REGION METRO AWCC# H404582 April 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Martin_Kevin_H404582_20250430.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Martin_Kevin_H404582_20250430.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H404582 \n \nKEVIN D. MARTIN, \nEMPLOYEE                                                                                                              CLAIMANT \n \nROCK REGION METRO, \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nRISK MANAGEMENT RESOURCES, \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED APRIL 30, 2025 \n \nHearing conducted on Wednesday, April 16, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Mr. Kevin D. Martin, Pro Se, of Scott, Arkansas.  \n \nThe Respondents were represented by Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents \non February 13, 2025.  A hearing on the motion was conducted on April 16, 2025, in Little Rock, \nArkansas.  Claimant, according to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as  a bus  operator.  The  date  for \nClaimant’s alleged injury was on May 15, 2024. He reported his injury to Respondent/Employer \non the  same  day. Respondents  admitted into  the  record Respondents’  Exhibit 1,  pleadings, \nconsisting of 8 pages. The Commission has admitted into evidence Commission Ex. 1, pleadings, \ncorrespondence, and U.S. Mail return receipts, consisting of 7 pages, as discussed infra. \nThe  record  reflects  on July 18,  2024,  a  Form  AR-C  was  filed  with  the  Commission \npurporting that Claimant was involved in a vehicle accident where he allegedly injured his neck, \n\nMARTIN, AWCC No. H404582 \n \n2 \n \nright shoulder, left lower leg, and low back. On July 24, 2024, a Form AR-1 was filed with the \nCommission purporting that Claimant’s disability began July 19, 2024. On July 26, 2024, a Form \nAR-2 was filed by Respondents neither accepting nor denying compensability. However, based on \nargument by Respondents’ counsel, Melissa Wood, during the hearing, the claim was accepted as \n“medical only”. Respondents’ counsel also argued that Dr. Wayne Bruffett found that Claimant \nhad reached maximum medical recovery on August 21, 2024.  \nOn February 13, 2025, Respondents’ counsel filed a Motion to Dismiss due to Claimant’s \nfailure to prosecute his claim. The Claimant was sent, on February 14, 2025, notice of the Motion \nto  Dismiss, via certified  and  regular  U.S.  Mail,  to  his last  known  address.  The  certified motion \nnotice was claimed by Claimant as noted on the February 21, 2025, return receipt. The Claimant \ndid not respond  to  the  Motion,  in  writing,  as  required. Thus,  in  accordance  with  applicable \nArkansas law, the Claimant was mailed due and proper legal notice of Respondents’ Motion to \nDismiss hearing date at his current address of record via the United States Postal Service (USPS), \nFirst Class Certified Mail, Return Receipt Requested, and regular First-Class Mail, on March 14, \n2025. The certified notice was claimed on March 18, 2025, return notice. The hearing took place \non April 16, 2025. And as mentioned before, the Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the April 16, 2025, \nhearing. \n \n\nMARTIN, AWCC No. H404582 \n \n3 \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. The certified hearing notice was \nclaimed on March 18, 2025, per the return postal notice bearing the same date. Thus, I find by the \npreponderance of the evidence that reasonable notice was given to the Claimant.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant filed his Form AR-C on July \n18,  2024.  Since  then,  he  has  failed  to  request  a bona  fide hearing.  Therefore,  I  do  find  by  the \npreponderance of the evidence that Claimant has failed to prosecute his claim by failing to request \na hearing. Thus, Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n\nMARTIN, AWCC No. H404582 \n \n4 \n \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5748,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H404582 KEVIN D. MARTIN, EMPLOYEE CLAIMANT ROCK REGION METRO, SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED APRIL 30, 2025 Hearing conducted on Wednesday, April 16, 2025, before the Arkansas Workers’ Compensation Com...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["neck","shoulder","back"],"fetchedAt":"2026-05-19T22:42:16.139Z"},{"id":"alj-H405370-2025-04-30","awccNumber":"H405370","decisionDate":"2025-04-30","decisionYear":2025,"opinionType":"alj","claimantName":"Pierre Mead","employerName":"City Of Little Rock","title":"MEAD VS. CITY OF LITTLE ROCK AWCC# H405370 April 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MEAD_PIERRE_H405370_20250430.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MEAD_PIERRE_H405370_20250430.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H405370 \n \nPIERRE MEAD,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nCITY OF LITTLE ROCK,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nCITY OF LITTLE ROCK/ \nRISK MG’T RESOURCES, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \nOPINION FILED APRIL 30, 2025, GRANTING RESPONDENTS’ MOTION TO \nDISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Wednesday, April 30, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Pierre Mead, pro se, of Little Rock, Pulaski County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable Melissa Wood, Worley, Wood & Parrish, \nLittle Rock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Wednesday, April 30, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 Lexis \nReplacement) and Commission Rule 099.13 (2025 Lexis Replacement). \n        The  claimant  initially  was  represented  by  counsel,  Mr.  Mark  Peoples  of  The  Peoples  Law \nFirm  of  Little  Rock,  in  this  claim.  By  unanimous  Full  Commission  order  issued  and  filed  on \nOctober 31, 2024, the Commission granted the claimant’s attorney’s motion to be dismissed as the \nclaimant’s attorney of record. (Respondents’ Exhibit 1 at 7). \n\nPierre Mead, AWCC No. H405370 \n2 \n \n       Thereafter,  on February 21,  2025, the respondents filed with  the  Commission a  motion  to \ndismiss this claim without  prejudice  (MTD).  (RX1  at  8-9). Pursuant  to  the  applicable  law the \nCommission provided the claimant due and legal notice of both the respondents’ MTD as well as \nnotice  of the  subject  hearing,  which  he  received  via  the  United  States  Postal  Service  (USPS), \nCertified Mail, Return Receipt Requested. (Commission’s Exhibit 1). The claimant failed and/or \nrefused to respond to the respondents’ motion in any way, and he failed and/or refused to appear \nat the subject hearing. (RX1 at 10-11; 1-11). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nclaimant’s voluntary MTD. Rather than recite a detailed analysis of the record, suffice it to say the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has neither taken any steps to pursue his claim, nor has he requested a hearing \non his claim within the last six (6) months. Also, respondents’ counsel advised the court that when \nshe took the claimant’s discovery deposition in October 2024, he testified he had in fact returned \nto work for the respondent-employer herein, the City of Little Rock. \n        Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \n\nPierre Mead, AWCC No. H405370 \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having received due  and  legal  notice  of the respondents’ MTD with or without \nprejudice and brief in support thereof filed with the Commission on February 21, 2025, as \nwell as notice of the subject hearing date, time, and place, the claimant failed and/or refused \nto respond to the respondents’ MTD in any way, and he failed and/or refused to appear at \nthe subject hearing.  \n \n3. The claimant has failed and/or refused to either prosecute his claim, or to request a hearing \non his claim within the last six (6) months. \n \n4. Therefore,  the unrebutted preponderance  of  the  evidence  compels the  decision the \nrespondents’ MTD without  prejudice  filed February 21,  2025,  should  be  and  hereby  is \nGRANTED; and this claim hereby is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nPierre Mead, AWCC No. H405370 \n4","textLength":5639,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H405370 PIERRE MEAD, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, EMPLOYER RESPONDENT CITY OF LITTLE ROCK/ RISK MG’T RESOURCES, INC. CARRIER/TPA RESPONDENT OPINION FILED APRIL 30, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:42:18.215Z"},{"id":"alj-H308141-2025-04-29","awccNumber":"H308141","decisionDate":"2025-04-29","decisionYear":2025,"opinionType":"alj","claimantName":"Rachel Boyce","employerName":"Bald Knob School District","title":"BOYCE VS. BALD KNOB SCHOOL DISTRICT AWCC# H308141 April 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BOYCE_RACHEL_H308141_20250429.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOYCE_RACHEL_H308141_20250429.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H308141 \n \nRACHEL BOYCE, EMPLOYEE      CLAIMANT \nBALD KNOB SCHOOL DISTRICT, EMPLOYER   RESPONDENT  \nARKANSAS SCHOOL BOARDS ASSOCIATION,     \nINSURANCE CARRIER/TPA      RESPONDENT  \n \nAMENDED OPINION FILED APRIL 29, 2025  \nHearing before Administrative Law Judge, James D. Kennedy, on the 11\nTH\n day of \nFebruary 2025, in Little Rock, Arkansas. \nClaimant is represented by C. Michael White, Attorney at Law, North Little Rock, \nArkansas. \nRespondents are represented by Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 11th day of February 2025, where the claimant \ncontended that she suffered a work-related injury to her right foot on December 18, 2023, \nwhen  she  broke  her  5\nth\n metatarsal  while  in  the  process  of  turning  on  the  lights  to  the \nbuilding.    She  further  contended  that  she  was  entitled  to  reasonable  and  necessary \nmedical treatment for her injuries on that date, plus temporary total disability from the day \nfollowing the injury up to the date of March 6, 2024, and attorney fees. The respondents \ncontend  that  the  injury was  not  work  related and that  the claimant  was not  performing \nemployment services at the time of her fall on December 18, 2023.  The parties stipulated \nthat the Arkansas Workers’ Compensation Commission has jurisdiction of the matter, that \nan employer/employee relationship existed on December 18, 2023, and that the claimant \nearned   an average weekly   wage of   $666.48   sufficient for TTD/PPD   rates of \n\nRACHEL BOYCE – H308141 \n2 \n \n$444.00/$333.00.  A copy of the Pre-hearing Order was marked “Commission Exhibit 1” \nand made part of the record without objection.        \n The sole witness to testify was Rachel Boyce, the claimant.  From a review of the \nrecord  as  a  whole,  to  include  medical  reports  and  other  matters  properly  before  the \nCommission, and having had an opportunity to observe the testimony and demeanor of \nthe witness, the following findings of fact and conclusions of law are made in accordance \nwith Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. The stipulations set out above are reasonable and are hereby accepted.   \n3. That  the  claimant  satisfied the  required  burden  of  proof  to  prove  by  a \npreponderance of the evidence that she suffered a compensable injury to her \nright foot by specific incident. \n4. That the claimant is entitled to reasonable and necessary medical benefits in \nregard to her compensable right foot injury. \n5. That the claimant is entitled to Temporary Total Disability benefits from the day \nfollowing her injury up to the day of March 6, 2024. \n6. That the claimant is entitled to attorney fees. \n7. If  not  already  paid,  the  respondents are ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \n \n\nRACHEL BOYCE – H308141 \n3 \n \nREVIEW OF TESTIMONY AND EVIDENCE \n The  Pre-hearing  Order  along  with  the  Pre-hearing  questionnaires of the parties \nwere admitted into the record without objection.  The clamant submitted one exhibit that \nwas admitted into the record without objection consisting of 24 pages along with an index.\n The claimant, Rachel Boyce, was the sole witness to testify and was 36 years old \nat the time of the hearing.  She testified that she had earned an associate’s degree, would \nbe awarded her bachelor’s degree in May, and worked for the Bald Knob School District \nas a lead preschool teacher, working under another teacher.  She had a paraprofessional \nteacher that worked for her.  Her job requirements required her to perform assessments \non  her  students  and  teach  from  a  curriculum, in  an  attempt  to get  them  ready  for \nkindergarten.    She  was  responsible  for  education  activities  in  the  classroom  and \nsupervising the paraprofessional who worked with her.  She had worked as a lead teacher \nin the classroom since 2020. (Tr. 6, 7) \n She sustained her injury on December 18, 2023.  “I was walking in the building.  \nThe lights were off and, as I walked in the building, the rug rolled up and I tripped and fell \nand broke my fifth metatarsal.”  She testified that she normally arrived early at 6:30 a.m. \nwhich  was  at  least  15  minutes  before  the  other  teachers  arrived.    She  immediately \nreported the injury to her supervisor. After the fall, she proceeded to her classroom and \nprepared  for  the  day.   Normally,  she would start  unstacking  the  chairs from  the  tables \nbecause  they were  stacked onto  the  tables  the  afternoon  before,  when  the custodian \nmopped the  floors  in  the  afternoon.    She also would set  up learning  centers  for  the \nchildren and  prepare for  the  day.    She  stated  that  it  was  standard practice for  her  to \nprepare for the day when arriving at her classroom every morning.  She additionally stated \n\nRACHEL BOYCE – H308141 \n4 \n \nthat the lights were not on when she entered the building and they were never on, so she \nturned them on every morning. (Tr. 8, 9)  There was no one else in the building so she \nwas  the  one  that  turned  the  lights  on.    Her  foot  was  hurting  and  felt  swollen and her \ndirector instructed that she seek medical care and she consequently went to ARCare in \nBald Knob, where they x-rayed her foot which appeared to be broken and referred her to \nDr. Franz in Searcy, an orthopedic surgeon. (Tr. 10)  Dr. Franz determined that she had \nbroken her fifth metatarsal and placed her in a boot and off work, until Dr. Franz returned \nher to full duty work on March 6, 2024.  She was not fully released until April 26.  She still \nworks for the Bald Knob School District in the same job and still gets to work at 6:30. (Tr. \n11)  She has never been told not to get to work at 6:30, either before or after the accident.  \nAlthough her scheduled eight-hour day is between 7:30 to 4:00 to get her eight hours in, \nthe school district has never told her that she could not come in early or stay late.  She \nadmitted that she was not required to stay late at work but at times it was necessary. (Tr. \n12) \n In  regard  to  entering  the  building  in  the  morning,  she  testified  she  had  to  step \nacross a four-foot hall to turn the light on.  She then would walk straight to her classroom.  \nShe felt that she would not be prepared for her children to teach them if she did not get \nto school early.  The staff children started arriving at 7:15 and all the others started arriving \nat 7:30.  Her supervisor was aware that she arrived early every morning and had never \nsaid anything about it.  She was not required to clock in but did have a badge which she \nscanned in.  She would not have been able to perform her preparation for her children if \nshe arrived at 7:30. (Tr. 13 - 14) \n\nRACHEL BOYCE – H308141 \n5 \n \n Under cross examination, the claimant stated that she had about 20 preschool kids \nat a time, and taught them the basics, such as ABC’s, letters, number, colors, and things \nlike that.  She had five children at the time of the accident.  She also admitted she didn’t \nhave any drop-off or pick-up duties.  When the parents dropped their kids off at school, \nthey  signed  the children in  before  leaving them.    After  the  children  were  dropped  off, \nsomeone  would  bring  the  children  to  her  classroom  or  on  a  nice  day,  they  would  be \ndropped off at the playground.  At the time of the accident, she admitted that she had not \ndone anything that morning except turn on the lights, with no students, teachers, or aides \npresent, and she had not performed any lesson planning that morning. (Tr. 17 – 19)  \n The claimant’s medical exhibits provided that the claimant presented to Dr. Kiihnl \nat Unity Health on December 19, 2023, due to a foot fracture and injury that occurred the \nday before when she walked into work at Bald Knob School.  She was diagnosed with a \nnondisplaced fracture at the 5\nth\n metatarsal and was placed in a boot walker and it was \nrecommended that she be non-weight bearing with crutches/walker.  She should elevate \nher foot and use ice for her pain and suffering. (Cl. Ex. 1, P. 1, 2)  The claimant returned \nto  Dr.  Kiihnl  on  January  9,  2024.    The  report  provided  that  since  the  claimant  was \nstruggling to be non-weight bearing, outpatient surgery was recommended.  Even with \nconservative treatment, the fracture might not completely heal. (Cl. Ex. 1, P. 3 – 5)   \n On  January  12,  2024,  the  claimant  was  seen  by  Dr.  Jason  Franz,  also  of  Unity \nHealth.  The report provided there was no change in symptoms, and she was currently \nusing a short boot walker and ambulating with a limp.  He recommended the placement \nof an intramedullary screw for the 5\nth\n metatarsal fracture. (Cl. Ex. 1, P. 6 – 8)  The claimant \nthen returned to Dr. Kiihnl on January 25, 2024, for a review of the open reduction of the \n\nRACHEL BOYCE – H308141 \n6 \n \ninternal  fixation  of  her  right  5\nth\n metatarsal  fracture  with  an  intramedullary  screw  on \nJanuary 16, 2024.  She was instructed to remain non–weight bearing using crutches or a \nknee scooter. (Cl. Ex. 1, P. 9 – 11)  The claimant returned again to Dr. Kiihnl on February \n13, 2024.  The radiology interpretation provided for a stable screw fixation and healing of \na Jones Fracture.  She was to remain non– weight bearing. (Cl. Ex. 1, P 12 – 14)  On \nMarch  5,  2024,  the  claimant  was  again  seen  by  Dr.  Kiihnl  who  examined her  foot  and \ninjury and opined that she could begin weight bearing on the right foot with a boot walker \nand could advance as long as not suffering from increased pain. (Cl. Ex. 1, P. 15 – 17)  \nThe claimant  again  returned to  Dr.  Kiihnl  on  March  26,  2024, and the  radiology \ninterpretation provided for a stable intramedullary screw fixation, which was healing well, \nand he stated that she could progress to full weight bearing with regular shoes. (Cl. Ex. \n1,  P.  18 – 20)    The  final  visit  of  record  to  Dr.  Kiihnl  occurred  on  April  7,  2024, and  he \nopined that she could resume normal activity as tolerated. (Cl. Ex. 1, P. 21 – 23)   \nDISCUSSION AND ADJUDICATION OF ISSUES \nThe claimant has the burden of proving by a preponderance of the evidence that \nshe  is  entitled  to  compensation  benefits for her injury under the Arkansas Workers’ \nCompensation Law.   In  determining  whether  the  claimant has  sustained her burden  of \nproof, the Commission shall weigh the evidence impartially, without giving the benefit of \nthe doubt to either party.  A.C.A. 11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, \n768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence on \nall issues before it into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 \nArk. App. 344, 925 S.W.2d 179 (1996). \n\nRACHEL BOYCE – H308141 \n7 \n \nIn the present matter, there appears to be no significant issue as to the facts of the \nmatter  or  the  actions  of  the  claimant.    The  claimant came  to  work  at  6:30 a.m. in  the \nmorning, just as she always did, walked approximately four feet down a hallway to turn \non the lights, and with the rug rolled up, tripped and fell, breaking the fifth metatarsal of \nher  right  foot  on  December  18,  2023,  while  employed  as  a  teacher  of  prekindergarten \nchildren for the respondent.  She eventually had surgery on her right foot, which required \nher to be non-weight bearing from the day following the injury, until she returned to the \nsame job for the respondent on March 6, 2024, where she continued to arrive for work at \n6:30 a.m.  It appears that it was not a secret that she arrived for work at that time, and no \none  ever  instructed her to arrive later.  The  official  work  hours  were 7:30  a.m.  to  4:00 \np.m., but  staff  children  started  arriving  at  7:15  a.m., with  non-staff  children  starting  to \narrive  at 7:30 a.m.  Other  teachers  started arriving  at 6:45.  The  claimant  testified  that \nbesides coming early, she at times stayed after 4:00 p.m., if needed.  She was always \nthe first teacher present and felt she needed to get there early to prepare for what she \nwas going to do that day in regard to her students.  She admitted that on the day of the \naccident, she did not prepare a presentation that morning and there were no students or \nteachers present when the injury occurred.  She also admitted she never had pick up or \ndrop off duty.  \nThe  critical issue here  is  whether  the  claimant  was  performing  employment \nservices when the injury occurred.   See Parker v. Comcast Cable Corp, 100 Ark. App. \n400,  269  S.W.3d  268  (2010).    The  Commission  is  bound  to  examine  the  activity  the \nclaimant was engaged in at the time of the accident in determining whether or not she \nwas  performing  employment  services.   Hill  v.  LDA  Leasing,  2010  Ark.  App.  271,  374 \n\nRACHEL BOYCE – H308141 \n8 \n \nS.W.3d 268 (2010).  In order for an accidental injury to be compensable, it must arise out \nof and in the course of employment.  Ark. Code Ann. 11-9-102 (4) (A) (i).  A compensable \ninjury  does  not  include  an  injury  inflicted  on  an  employee  at  a  time  when  employment \nservices were not being performed.  Ark. Code Ann. 11-9-102(4)(B)(iii).  An employee is \nperforming  employment  services  when  he  or  she  is  doing  something  that  is  generally \nrequired by  his  or  her employer. Cont’l Constr. Co.  v.  Nabors,  2015  Ark.  App.  60, 454 \nS.W.3d  762.  We  use  the  same  test  to  determine  whether  an  employee  is  performing \nemployment services as we do when determining whether an employee is acting within \nthe  course  and  scope of  employment.   Pifer v. Single  Source  Transportation, 347  Ark. \n851,  69  S.W.3d  1  (2002).   The  test  is  whether  the  injury  occurred  within  the  time  and \nspace boundaries of the employment when the employee was carrying out the employer’s \npurpose  or  advancing  the  employer’s  interest,  either  directly  or  indirectly.  Even  if  the \nalleged injury took place outside the time or space boundaries of employment, “the critical \ninquiry is whether the interests of the employer were being directly or indirectly advanced \nby the employee at the time of the injury. Hudak-Lee v. Baxter County Reg. Hosp., 2011 \nArk. 31, 378 S.W.3d 77. Moreover, whether an employee was performing employment \nservices depends on the particular facts and circumstances of each case. Ctrs. For Youth \n& Families v. Wood, 2015 Ark. App. 380, 466 S.W.3d 422. \nHere, with no real dispute as to the facts, we are faced with the application of the \napplicable  law and  the  facts to  determine if the  injury  occurred  while  performing  work-\nrelated services.  The claimant always arrived early, both before and after her injury date, \narriving at 6:30 a.m., turning on the lights, which would be beneficial for the students and \nemployees of the respondent, either directly or indirectly, in the middle of December when \n\nRACHEL BOYCE – H308141 \n9 \n \nthe days were the shortest, and then going to her classroom to prepare for the day.  The \nofficial start time for the school is 7:30 a.m.  With that said, it is clear students of the school \nstaff  start arriving  by  7:15 a.m. and  other  staff members  start arriving as  early  as 6:45 \na.m.  It was the claimant’s normal practice to come early and prepare for the day.  She \nwould come in, turn on the lights to the school or at least to the hallway, and prepare for \na day with preschoolers, which was clearly a benefit to the respondent, her co-workers, \nand the students.  This dedication of the claimant and her actions were clearly carrying \nout  the  respondent employer’s purposes and  advancing the  respondent  employer’s \ninterests for preparing a safe learning environment for the children and employees of the \nschool.  It is  apparent that  the  respondent employer, as  well  as  the  students, clearly \nbenefitted from the dedication of the claimant.  Additionally, there is clearly no question \nthat  someone  had  to  turn  on  the  lights. See Williams  v.  Malvern  School  District  and \nArkansas School Boards Association, 2025 Ark. App. 208,__ S.W.3d ___.  Based upon \nthe facts of record, the preponderance of the evidence in the present matter demonstrates \nthat  the  claimant  was  directly  or  indirectly advancing the interests  of  the respondent \nemployer  when  she  came  in  and  turned  on  the  lights that  dark  December  morning on \nDecember 18, 2022, at about 6:30 a.m.  Thus, while the claimant may have been outside \nthe time boundaries of her employment, this is not fatal to her claim under Hudak-Lee, \nsupra.  Consequently,  the  claimant suffered  a  compensable  work-related  injury.  The \nevidence  shows  that  the  injury  is  identifiable  by  time  and  place  of  occurrence,  that  its \nexistence is supported by objective medical findings, and that it caused internal physical \nharm to the claimant’s body which required medical services.   \n\nRACHEL BOYCE – H308141 \n10 \n \nSince  the  injury  was  in  fact  compensable,  the  claimant  is  entitled  to reasonable \nand  necessary medical treatment  and temporary  disability.  A.C.A.  11-9-102  (4)  (F)  (i).  \nThe  law  is  clear  that  employers  must  promptly  provide  medical  services  which  are \nreasonably necessary for treatment of compensable injuries. A.C.A 11-9-508 (a).  All of \nthe  treatment  of  her  compensable  foot  injury  that  is  in  evidence  is  reasonable  and \nnecessary.  \nIn  regard  to  temporary  total  disability,  an  employee  who  suffers  a  compensable \nscheduled injury is entitled to temporary total disability compensation “during the healing \nperiod or until the employee returned to work, whichever occurs first ....” A.C.A. 11-9-\n521(a).  Conspicuously absent from the statute is any indication that the injured employee \nshow an incapacity to earn wages as a requirement for receiving temporary benefits.  See \nWheeler  Const.  Co.  v.  Armstrong, 73  Ark.  App.146, 41  S.W.3d  822  (2001).   Here,  the \nclaimant suffered a scheduled injury when she broke the fifth metatarsal of her right foot, \nwhich required surgery and the placement of a screw for its repair.  The healing period \nends when the underlying condition causing the disability has become stable and nothing \nfurther in the way of treatment will improve the condition.  Mad Butcher Inc. v. Parker, 4 \nArk. App. 124, 628 S.W.2d 582 (1982).  Because of her foot condition, the claimant did \nnot  return  to  work  during  this  period  and  consequently,  the  claimant  is  entitled  to \ntemporary total disability from the day after the injury until the day of March 6, 2024.    \nAfter reviewing the evidence impartially, and without giving the benefit of the doubt \nto either party, it is found that the claimant has satisfied the required burden of proof to \nprove by a preponderance of the evidence that she was performing employment services \nat  the  time  of  the  injury  and  consequently  the  claim  is  compensable.   In  addition, the \n\nRACHEL BOYCE – H308141 \n11 \n \nclaimant is found to be entitled to reasonable and necessary medical and temporary total \ndisability from the date following the injury up to March 6, 2024, and attorney fees.  If not \nalready paid, the respondents are ordered to pay for the cost of the transcript forthwith. \nIT IS SO ORDERED. \n           ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":19732,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H308141 RACHEL BOYCE, EMPLOYEE CLAIMANT BALD KNOB SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT AMENDED OPINION FILED APRIL 29, 2025 Hearing before Administrative Law Judge, James D. Kennedy, on th...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["fracture","knee"],"fetchedAt":"2026-05-19T22:42:05.750Z"},{"id":"alj-H400906-2025-04-29","awccNumber":"H400906","decisionDate":"2025-04-29","decisionYear":2025,"opinionType":"alj","claimantName":"Rachel Grimes","employerName":"Starbucks Corp","title":"GRIMES VS. STARBUCKS CORP AWCC# H400906 April 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GRIMES_RACHEL_H400906_20250429.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRIMES_RACHEL_H400906_20250429.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H400906 \n \nRACHEL GRIMES, Employee CLAIMANT \n \nSTARBUCKS CORP., Employer RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT, Carrier RESPONDENT \n \n \n \n OPINION FILED APRIL 29, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss.  \n On  July  23,  2024,  the claimant filed  an  AR-C  requesting  various  compensation  benefits \nin  which  she  alleges  injuries  to  her  left  shoulder,  right  shoulder,  and  right  knee  on  or  about \nJanuary 27, 2024. There has been no request for a hearing and no further action was taken in tis \nclaim. \n On  February  10,  2025, the respondents  filed  a  Motion to  Dismiss  requesting  that  this \nclaim be dismissed for lack of prosecution. A hearing was scheduled for April 15, 2025. Notice \nof  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on  March  7, \n2025. United States Postal Department records indicate that claimant received and signed for the \nnotice on March 10, 2025. Despite having received notice of the scheduled hearing, the claimant \nfailed to appear at the hearing and has failed to respond to the motion in any form or manner. \n\nGrimes – H400906 \n \n-2- \n After  a  review  of  the  respondents’ Motion to  Dismiss,  the  claimant’s lack  of  desire  to \npursue his claim, and her failure to appear at the scheduled hearing, as well as all other matters \nproperly before the Commission, I find that respondents’ Motion to Dismiss this claim should be \nand hereby is granted pursuant to Commission Rule 099.13. This dismissal is without prejudice. \n ORDER \nPursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":2556,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H400906 RACHEL GRIMES, Employee CLAIMANT STARBUCKS CORP., Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT, Carrier RESPONDENT OPINION FILED APRIL 29, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claim...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["shoulder","knee"],"fetchedAt":"2026-05-19T22:42:07.810Z"},{"id":"alj-H203788-2025-04-29","awccNumber":"H203788","decisionDate":"2025-04-29","decisionYear":2025,"opinionType":"alj","claimantName":"Ronald Laslo","employerName":"Arkansas State Police","title":"LASLO VS. ARKANSAS STATE POLICE AWCC# H203788 April 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LASLO_RONALD_H203788_20250429.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LASLO_RONALD_H203788_20250429.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203788 \n \nRONALD LASLO, EMPLOYEE      CLAIMANT \nARKANSAS STATE POLICE, EMPLOYER    RESPONDENT \nPUBLIC EMPLOYEES CLAIMS DIVISION, \nCARRIER/TPA        RESPONDENT \n \nAMENDED OPINION FILED APRIL 29, 2025  \nHearing before Administrative Law Judge, James D. Kennedy, on the 26\nth\n day of \nFebruary, 2025, in Batesville, Arkansas. \nClaimant is represented by Mark Alan Peoples, Attorney at Law, Little Rock, Arkansas. \nRespondents are represented by Charles McLemore, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n  \n A hearing was conducted on the 26\nth\n day of February 2025, to determine the  \nissue of additional  medical treatment,  specifically treatment  by  Doctor Edwards  for \nevaluation of his right hip.  The Prehearing Order also listed unpaid medical and attorney \nfees,  with  all  remaining  issues reserved,  but  at  the  time  of  the  hearing,  the  issue  was \nnarrowed down to the sole issue of additional medical by Dr. Edwards.  A copy of the Pre-\nhearing Order, which was dated December 17, 2024, was marked “Commission Exhibit \n1”  and made  part  of  the  record without  objection.    The  Order  provided  the parties \nstipulated that the Arkansas Workers’ Compensation has jurisdiction of the case and that \nthere  was  an  employer/employee relationship that existed  on or  about  May  10,  2022, \nwhen  the  claimant  sustained  injuries  to  his right hip  due  to  a  trip  injury,  which  the \n\nRONALD LASLO – H203788 \n2 \n \nrespondent accepted as compensable.  The claimants authorized treatment was by Dr. \nDominic  Maggio, who later referred  the  claimant  to  Dr.  Paul  Edwards  for  further \nevaluation.  The respondents have not controverted this claim in its entirety.  They are \nproviding  treatment  to  the  claimant  and  continuing  to  pay  TTD  to  the  claimant.    The \nrespondents  have  denied  authorization to see Dr. Edwards.   The claimant’s average \nweekly wage on or about May 10, 2022, was $1224.67, with a corresponding temporary \ntotal disability rate of $790.00 and a permanent partial disability rate of $593.00.  \n The Prehearing Order along with the claimant’s and respondent’s contentions are \nset out in their respective responses to the Pre-hearing questionnaire and made a part of \nthe record without objection.  The sole witness to testify was the claimant, Ronald Laslo.  \nThe claimant submitted two exhibits without objection.  Claimant’s Exhibit One consisted \nof twenty-six pages of medical with index and Exhibit Two consisted of five pages of non-\nmedical  with  index.  The  respondents  submitted three exhibits  without  objection,  with \nRespondent’s  Exhibit  one  consisting of  medical  records consisting  of 220 pages, \nRespondent’s   Exhibit   Two   consisting   of 40 pages   of documentary records,  and \nRespondents Exhibit three consisting of twenty-two pages, and four CD’s of surveillance \nvideo.  From  a  review  of  the  record  as  a  whole, to  include  medical  reports  and  other \nmatters properly before the Commission, and having had an opportunity to observe the \ntestimony and demeanor of the witness, the following findings of fact and conclusions of \nlaw are made in accordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n\nRONALD LASLO – H203788 \n3 \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. That the claimant has proved by a preponderance of the credible evidence that \nthe  medical  treatment  requested, consisting of a  referral  and additional \nevaluation, consultation, and treatment by Dr. Paul Edwards, is causally related \nto and reasonably necessary for the treatment of the stipulated compensable \nwork-related right hip injury.    \n4. If  not  already  paid,  the  respondents are ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n At the start of the hearing, the issues were clarified by the representative of the \nclaimant who contended that that the sole issue before the Commission at the time of the \nhearing was the referral from the claimant’s authorized doctor to a different doctor for an \nadditional evaluation, consultation, and treatment.  The representative for the Respondent \nresponded that their position was that the claimant had refused treatment due to the fact \nthe  claimant  was  offered a return visit to  Dr. O’Malley, that the  claimant  already  had a \nChange  of  Physician  to  Dr.  Maggio,  and that the  referral  to  Dr.  Edwards was  not \nreasonable and necessary. \n The claimant, Ronald Laslo, testified that he was working as a state trooper back \nin  May  of  2002,  when he  was called  out  in  the  middle  of  the  night  to  work  a  highway \naccident.  While walking back to his vehicle to get his tape measure and paperwork to \nwork the accident, he stepped off the pavement where a shoulder should have been, and \nwhich  had  been washed  out on  the  side  of  the  highway.   This  caused the  claimant to \nalmost fall down the hill resulting in him twisting, and hearing a loud pop.  His car kept \n\nRONALD LASLO – H203788 \n4 \n \nhim from falling.  He suffered shooting pain from his toe to the top of his head.  He went \nto his car and waited until he felt better, and then worked the wreck.  After working the \naccident, he was off work a couple of days and he thought he would get better, but after \nthe time off, he still had half the original pain and was then sent to Sherwood Urgent Care.  \nHe was 55 or 56 at the time of the incident. While there, he stated that his knee hurt a \nlittle but then pointed to his right hip and buttocks.  He saw Dr. O’Malley, who treated him \nand released him. (Tr. 7 – 10) \n He   then   obtained   a   Change   of   Physician   and   then   saw   Dr.   Maggio,   a \nneurosurgeon, who provided injections.  The claimant’s understanding of his injuries was \nthat he was suffering from a labrum tear which caused his hip problems and that he had \nadditionally damaged his SI joint, which was causing his back pain.  The claimant was \nthen questioned about some surveillance videos.  He stated that he had watched them, \nand they more or less showed him engaged in his day to day activities, except the one \nwhich showed him doing more than he normally did.  That particular video showed him \nlifting a box and a mattress or box springs.  He stated that he tipped it up and slid it into \na dumpster.  He went on to testify that he had good and bad days, and was having a good \nday  that  day  due  to having  received  an injection  that  morning.    He  finished  his  direct \ntestimony by stating that Dr. Maggio had referred him to Dr. Edwards for an additional \nevaluation. (Tr. 11 - 13) \n Under cross examination, the claimant stated that when he stepped down off the \nhighway, he felt pain from head to toe and it was like a shooting pain which just hurt.  He \nadmitted he had personally filled out Form N and his signature was at the bottom of the \npage and also on the back of Form N.  He also agreed that the writing on Form PECD – \n\nRONALD LASLO – H203788 \n5 \n \n1 was his and that he also signed that one.  The claimant agreed he had received a lot of \ntreatment.    He  admitted  that  Dr.  Ron  Bates  was his family  doctor.    The  claimant  also \nadmitted seeing Dr. Wesley Greer for his hip. (Tr. 15 – 18) \n The claimant admitted receiving two MRI’s.  He then stated as follows: \n“After Dr. Greer had said it was my back, it was - - I mean, it - - it - - they \nwere trying to figure out whether it was both or if it was - -  what was - - I \nguess    what  was  more  significant,  if  it  was - - if  I  was  having  more  back \nproblem  than  hip problem  or  if  I  was having more  hip  problem  than  back \nproblems.  And I know that each doctor pointed fingers back at the opposite \nback and forth, and that’s why it  kept - - or why  they  kept  sending  me  to \ndifferent places. (Tr. 19) \n \n The claimant remembered seeing Dr. O”Malley, a hip doctor, a couple of times and \nreceiving an EMG nerve study and also receiving two MRIs of the right hip and seeing \nDr. Angel.  He also remembered a functional capacity exam where he performed the best \nthat he was capable of. (Tr. 20, 21) \n The claimant was also questioned about his duties as the Fire Chief in a volunteer \nfire department.  He admitted that he did in fact respond to fires after his injury.  He also \nadmitted to resigning from the State Police on August 11, 2022, when he retired. (Tr. 22, \n23)    He  also  admitted  he  had  attempted  to  return  to  work  as  a  police  officer  against \nmedical advice because they needed the money. (Tr. 24)  He admitted going to work for \nthe Bald Knob Police Department.  He was then questioned about obtaining a document \nfrom Dr. Bates which provided for “No restriction” as a release.  The claimant was then \nquestioned about the Functional Capacity Exam on November 6, 2023, and he responded \nthat he thought that he had stopped working for the Bald Knob Police Department by then, \nbut he was  not  sure.    He  also  admitted  driving  a  pickup  and  sometimes  performing \n\nRONALD LASLO – H203788 \n6 \n \nmaintenance  on  his  home  and  his  swimming  pool.  (Tr.  25 - 28)    The  claimant  was \nquestioned about bush hogging his 80 acres and he responded that he had probably done \nthat 10 years ago.  His tractor was 25 years old and only had 200 hours on it. (Tr. 29)  \nThe claimant was then questioned about the sticker on his pickup back window and what \nwas required in regard to that position.  He responded that he didn’t do anything.  He went \non to state that they had problems in their area with Constables doing things that they \nshouldn’t be doing, and he was a placeholder. (Tr. 30)   The claimant also admitted that \nhe was still with the fire department and went to a fire a while back where he had just \ndriven and that his wife did everything. (Tr. 31) \n The  claimant  was  questioned  about  a  video  that  showed  him  loading  some \nfurniture onto a trailer.  He testified that when he pulled through the gate, the items were \nalready on the trailer, which had been loaded by his wife, daughter, and her boyfriend.  \nThe  claimant  was  then  specifically  questioned  about  a  console  television,  and  he \nresponded that they didn’t lift it but pivoted it he guessed.  “We didn’t lift it.” The claimant \nadmitted to disposing of a box spring and mattress. (Tr. 32, 33) \n The  claimant  also  admitted  to  owning  two  rental  properties.    He  denied  owning \nHillside Bayou, LLC, explaining that it was his father’s mobile home park.  He admitted to \nbeing the agent for service for the LLC. (Tr. 34) \n The claimant was then questioned again about the medical.  The claimant admitted \nthat the last time he saw Dr. Bruffett and Dr. O’Malley, they had released him with no \nrestrictions and were through treating him. He admitted that he then used his change of \nphysician and chose Dr. Maggio. (Tr. 37, 38)  The claimant went on to state that when he \ntalked to the office of the respondent’s representative, and when he saw the last hip \n\nRONALD LASLO – H203788 \n7 \n \ndoctor, Dr. O’Malley, “he said that I have a tear and so on and that it would have to be \naddressed, but when I went to seen him the last time, he thought most of my problems \nwere coming from my back which needed to be resolved and he was releasing my hip so \nthe last doctor that they sent me to was for my back which could have been Dr. Bruffett, \n‘whatever the one that released me on my back.’” (Tr. 39) \n The claimant went on to testify as follows: \n “So I went and saw Dr. Bruffett, and he said, - - he said, yeah, you’ve got \nsome back issues and you’ve got this and whatever, he said, but all your \nproblems are coming from your hip.  You need to go see a hip doctor, \nand I’m going to release you on your back.  So each one released me on \nthat particular body part and then pointed the finger the other way, which \nis what’s been going on the entire time.”  “Then your office called me and \ntold me that I was done with treatment, and I’m like - - I told her that I still \nhurt,  that  what  do  I  do,  and  she  got  a  little  angry  at  me  and  said  that, \n‘Well, that’s not our problem.’” (Tr. 40) \n \n The claimant went on to testify in regard to the Change of Physician that all of the \nhip doctors thought that he was having more problems with his back, so he had to make \na choice and he picked treatment for his back, and that’s how he saw Dr. Maggio, who \ntreated his back and provided injections in the SI joint.  Dr. Maggio then wanted an MRI \nof the hip, and the claimant admitted he received one on September 10, 2024.  He was \nthen supposed to return to Dr. O’Malley to review the MRI but felt that Dr. O’Malley had \nprovided  a  disservice  to  him.    He  went  on  to  state  that  all  of his hip  doctors  were  in \nagreement that he had a problem but due to his age, “it would be a bad time to get it.”  \n“Most of my pain’s coming from my back, so I just felt like he did me, I guess, wrong.  I \nmean that’s the only way I can say it.” The claimant also admitted to seeing a chiropractor \n\nRONALD LASLO – H203788 \n8 \n \nfor  a  couple  of  months  and  paying  for the  treatment himself since “at that point, I was \ngrasping at straws.” The claimant denied seeing Dr. Edwards. (Tr. 42 - 45) \n On redirect, the claimant clarified that he had actually contacted the Workers’ \nCompensation Commission and not the office of the attorney for the Respondents.  He \nalso  denied  refusing  treatment  for  his  hip.    He  admitted  that  his  treating  doctor  had \nrecommended that he see Dr. Edwards and that’s what he wants to do. (Tr. 48, 49)  \n Claimant’s Exhibit One of medical records provided that the claimant presented to \nDr. Maggio on May 1, 2024.  The report provided that the claimant’s chief complaint was \nback pain radiating to the right hip and buttock.  The report went on to provide that the \nclaimant stated that the back pain was worse than the leg pain.  There was tenderness \nto the SI Joint upon palpation.  The finding of a partial labrum tear discovered by a hip \nsurgeon was mentioned.  An EMG/nerve conduction study demonstrated no evidence of \nradiculopathy.  Right sided SI joint injections were recommended. (Cl. Ex. 1, P. 1 – 7) \n The claimant presented to Dr. Bates on May 7, 2024, with the chief complaint of \nlumbar back pain and right hip pain.  Dr. Bates opined that the claimant would be unable \nto  perform  the  job  requirements  of  an  Arkansas  State  Trooper  and  although  he  had \nreturned to a sedentary position, he would be a danger to himself, others, or the public, if \nhe was placed in a position to defend the public. (Cl. Ex 1, P. 8)  Dr. Magio placed the \nclaimant on light duty on May 10, 2024. (Cl. Ex. 1, P. 9) \n Dr.  Sheffield  Kent, on  June  12,  2024,  provided  a  sacroiliac  joint  injection  to  the \nclaimant at the Legacy Surgery Center. (Cl. Ex. 1, P. 10, 11).  Later on June 20, 2024, \nthe claimant presented to Dr. Maggio of Legacy Spine and Neurological Specialists with \n\nRONALD LASLO – H203788 \n9 \n \nthe chief complaint of lower back pain radiating to the right hip and buttocks.  Dr. Maggio \nfelt the majority of the claimant’s pain was coming from the SI Joint and he recommended \nanother SI Joint injection.  Dr. Maggio also issued a work note that provided the claimant \nremains off work while undergoing interventional treatment. (Cl. Ex. 1, P. 12 – 19)  The \nclaimant was admitted to the Legacy Surgery Center on June 20, 2024, for another SI \njoint injection on the right side. (Cl. Ex. 1, P. 20)  On August 8, 2024, Dr. Maggio made a \nreferral to Dr. Edwards at Bowen Hefley for a hip evaluation. He also issued a work note \nstating  the  claimant  should  refrain  from  lifting,  twisting,  or  sitting  or  standing  for  long \nperiods of time. (Cl. Ex. 1, P. 21, 22) \n The claimant received an MRI of the right hip on September 10, 2024, with findings \nof  an anterosuperior  labral  tear  and  with  high  grade  cartilage  loss  from  the  anterior \nacetabulum  with  associated  cysts.    No  significant  hip  joint  effusion  and  no  hip fracture \nwas noted. (Cl. Ex. 1, P. 24) Two days later, on September 12, 2024, a chart note was \nissued by Dr.  Maggio,  who  stated the  hip  MRI  demonstrated extensive  changes  in  the \nbilateral  hip  and  that  the  claimant  was  scheduled  to  see  Dr.  Paul  Edwards  for  further \nevaluation. (Cl. Ex 1, P. 25). \n Claimant’s  nonmedical  exhibits  consisted  of  five  pages  of  emails  between \nattorneys.  An email from the respondent’s attorney timestamped 8:12 a.m. stated he \nwould let his client know the claimant was refusing treatment.  An email response from \nthe  claimant’s  attorney  addressed  to  the  respondent’s  attorney  shortly  thereafter, \nprovided that  the  claimant  was  not  refusing  treatment,  just  the  opposite,  and  that  he \nwanted to go forward with the treatment. (Cl. Ex. 2, p. 1 – 5) \n\nRONALD LASLO – H203788 \n10 \n \n The respondents submitted 220 pages of medical records.  On October 7, 2021, \nthe  claimant saw Dr.  Bates,  and  the  office  note  provided that the  claimant  presented \nneeding  paperwork  to defer  his physical  exam  for  the  state  police due  to  experiencing \nbilateral knee pain.  A Physical Fitness Assessment Medical Release Form provided that \nit was not recommended that the claimant participate in the physical fitness assessment \nat that time. (Resp. Ex. 1, P. 1, 2)  On March 21, 2022, Dr. Bates issued another deferment \nin regard to the physical fitness assessment due to tendonitis of both knees. (Resp. Ex. \n1, P. 3)   \n On  March  16,  2022,  the  claimant  presented  to  Sherwood  Urgent  Care  and  was \nseen by Lesli Ashten, APRN, in regard to his treatment for pain in the right hip, knee and \nlumbar spine.  (Resp. Ex. 1, P. 4 – 12)  The claimant returned to Lesli Ashten, APRN, on \nMay 23, 2022, for continued right hip pain and was referred to physical therapy. (Resp. \nEx. 1, P. 13 – 15)  The claimant then again returned to Lesli Ashten, APRN, on May 30, \n2022, with continued pain in the right hip and knee, a tear of an unspecified meniscus per \na differential diagnosis, along with right hip and knee pain. (Resp. Ex. 1, P. 16 – 18)  The \nclaimant again returned to Lesli Ashten, APRN, on June 6, 2022, for right hip and knee \npain and an ortho referral was mentioned.  A request for an MRI was made on June 7, \n2022. (Resp. Ex. 1, P. 19 – 22) \n   On June 13, 2022, the claimant was seen by Dr. Jeff Angel for an injury of the right \nhip due to his hip pain.  An MRI of the right hip to check for soft tissue abnormalities was \nmade. (Resp. Ex. 1, P. 23 – 32) The MRI of the hip dated June 21, 2022, provided for \nmoderate  arthrosis  of  the  right  hip  joint  without  acute  bone  marrow  edema,  fracture, \ndislocation or joint effusion.  There was an intermediate to high signal undercutting the \n\nRONALD LASLO – H203788 \n11 \n \nanterior/superior portion of the labrum. (Resp. Ex. 1, P. 33)  On June 27, 2022, Dr. Angel \nissued an assessment and plan referring the claimant to Dr. Greer for an evaluation and \nan assessment for a labral tear verses osteoarthritis.  A note to the patient provided that \nthe claimant could return to work pending his July 7, 2022, appointment. (Resp. Ex. 1, \nP.34 – 39) \n On  July  7,  2022,  the  claimant  was  seen  by  Dr.  Wesley  Greer.    The  MRI  was \nreviewed, and it provided for a labral tear along with osteoarthritis of the right hip along \nwith low back pain.  The claimant was placed on desk duty only. (Resp. Ex. 1, P. 40 – 49)  \nThe claimant returned to Dr. Greer on August 11, 2022, and the report provided that the \nphysical  therapy  had helped  considerably, and  the  claimant  could return  to  work.    The \nreport went on to provide that there was a full range of motion of the right hip but with \npain. (Resp. Ex. 1, P. 50 – 54)  The claimant was later discharged from physical therapy \nand a report provided he could return to work on August 22, 2022, with the report dated \nAugust 18, 2022. (Resp. Ex.1,  P. 55 – 57)  A report by Dr. Bates, dated August 23, 2022, \nprovided  the  claimant  was  doing  well  and he was  there  to review  lab  results.    On \nSeptember  15,  2022,  the  claimant  again returned  to Dr.  Greer, who  provided  that  the \nclaimant’s pain was better but that it does get somewhat irritated by the end of the day, \ndue to getting in and out of his car and wearing his gun belt.  The knee pain seemed to \nhalve resolved. (Resp. Ex. 1, P. 59 – 63)    \n On  September  19,  2022,  the  claimant saw Dr.  Bates, who  examined him and \nplaced him on no restrictions. (Resp. Ex. 1, P. 64, 65)  The next physician’s visit occurred \non  November  7,  2022,  when  the  claimant again returned  to  Dr.  Greer.    The  report \nprovided  the  pain  was  still  bothering  the  claimant, but he  could  work  under his  current \n\nRONALD LASLO – H203788 \n12 \n \nrestrictions, but that he was starting to have pain in his anterior hip and that his back had \nimproved. (Resp. Ex. 1, P. 66 – 72)  Later on November 21, 2022, an MRI of the lumbar \nspine  was  provided  to  the  claimant.    Under  impression,  the  report  provided  that \nspondylosis was noted at the L3-4 through L5-S1 with mild disc bulges resulting in mild \nto moderate foraminal narrowing that was greatest on the right at L3-4 and on the left at \nL4-5.  Mild narrowing of the thecal sac was seen at these levels.  A small broad-based \ncentral disc protrusion was seen at L5-S1, superimposed on a mild disc bulge. (Resp. Ex. \n1, P. 73 - 76) \n The  claimant  then  returned  to  Dr.  Greer  on  December  1,  2022,  and  the  report \nprovided the back was the biggest issue, and claimant was released to full duty. (Resp. \nEx. 1, P. 77 – 85)  The claimant then again returned to Dr. Greer on January 5, 2023, and \nthe report provided that the injection helped considerably, and at this point, the back was \nthe major issue, and the claimant was then referred to Dr. Wayne Bruffet.  The claimant’s \nMRI was reviewed by Trent Tappan PA-C who opined that the low back looked stable, \nand he did not think there was a specific objective injury and placed the claimant at MMI \nand released him without restrictions. The letter provided for no restrictions pertaining to \nthe lumbar and was signed by Dr. Bruffet. (Resp. Ex. 1, P. 93 – 99) \nNearly  a  month  later,  the  claimant  returned  to  Dr.  Greer  on  February  20,  2023, \nwho stated that the pain in the hip was mild and was not keeping him from being able to \nwork,  but  there  was  continued  pain  in  his  lower  back.  (Resp.  Ex.  1, 100 – 106)    The \nclaimant then returned to Dr. Bates on July 10, 2023, and the report provided the claimant \nwas  doing  well,  with  the  chief  complaint  being  body  weight,  with  no  other  complaints. \n(Resp. Ex. 1, P. 107) \n\nRONALD LASLO – H203788 \n13 \n \n On August 1, 2023, the claimant presented to Dr. John Larson for chronic low back \npain.  Increased home exercise and core musculature strengthening was recommended. \n(Resp. Ex. 1, P. 108 -113)  The claimant then followed up with Dr. Greer on August 31, \n2023, and the report provided there was still some hip pain, but the back seemed to be \nthe  main  problem,  but  that  it  could  be  a  variable  presentation  for  the  hip.    The  report \nfurther  mentioned  that  the  claimant  had  lost  a  significant  amount  of  weight  which  had \nlikely helped the situation. (Resp. Ex. 1, P. 114 – 119) \n On October 18, 2023, a second opinion was obtained from Dr. Barry Baskin.  Dr. \nBaskin opined that he felt the claimant’s biggest problem was his hip and it was likely the \nhip was the pain producer.  He stated that the claimant’s hip arthritis does not look severe \non imaging studies but “his pain is quite severe, I believe.”  He recommended an FCE.  \nHis impression was that the claimant’s issues were degenerative in nature and not clearly \npost-traumatic. (Resp. Ex. 1, P. 120 – 122)  \n A functional capacity evaluation occurred on November 6, 2023, and the claimant \nprovided a reliable effort in 48 of 48 categories and demonstrated the ability to work in \nthe medium classification of work. (Resp. Ex. 1, P. 123 – 141)  Dr. Baskin then added to \nhis original second opinion and opined that the claimant could resume work based on his \nFCE and perform up to medium duty. (Resp. Ex. 1, P. 142 – 143)  On December 4, 2023, \nthe claimant presented to Dr. O’Malley who  recommended  a  nerve  study  along  with  a \nlumbar MRI. (Resp. Ex. 1, P. 144 – 154)  The lumbar MRI of December 12, 2023, provided \nfor  mild  to  moderate  spondylosis  from  L3-4  through  L5-S1  with  disc  bulges  and  facet \narthropathy.  Foraminal  narrowing  was  moderate  on  the  right  at  L3-4.    Mild  foraminal \nnarrowing was noted bilaterally at L4-5 and L5 – S1, asymmetrically worse on the left at \n\nRONALD LASLO – H203788 \n14 \n \nL4-5.  Thecal sac narrowing was mild at these three levels. (Resp. Ex. 1, P. 155, 156)  A \nnerve  conduction  study  occurred  on December  14,  2023,  which  provided  for  no \nelectrophysiologic evidence suggestive of a Sciatic nerve axon loss process on the right, \na common Fibular nerve compromise at the knee on the right, a Tibial nerve compromise \nat  the  posterior  tarsal  tunnel  on  the  right,  and  a  Sural,  superficial  Fibular  sensory  or \nSaphenous N axon loss on the right. (Cl. Ex. 1, P. 157 – 160)  \n On January 29, 2024, the claimant returned to Dr. O’Malley who opined that the \nclaimant’s right hip had pre-existing  arthritis,  and  he would not  recommend  that  a  hip \narthroscopy  could  be  beneficial for the patient.  Dr. O’Malley issued a note that the \nclaimant  could  return  to  work  full  duty  without  restrictions  in  regard  to  his  right  hip.  \nHowever, with  regard  to  his  back,  he  may  return  to  work  with  the  restriction  of  seated \ndesk duty. (Resp. Ex. 1, P. 161 – 167) \n   On March 25, 2024, a progress note, from Dr. Bruffett provided that on his review \nof  the  MRI  and  x-rays  of  the  claimant, the claimant had not  sustained  any  objective \nevidence of injury, and he was at MMI in regard to his back. (Resp. Ex. 1, P. 168 – 172)  \nLater on May 1, 2024, the claimant returned to Dr. Maggio with a chief complaint of lower \nback pain radiating to the right hip and buttock. (Resp. Ex. 1, P. 173 – 179)  A few days \nlater, office notes from Dr. Bates on May 7, 2024, provided the claimant presented with a \nchief  complaint  of  lumbar  pack  pain  and  right  hip  pain  and  Dr.  Bates  opined  that  the \nclaimant would not be able to perform the job requirements.  Two days later on May 9, \n2024, Dr. Vadera opined that a proposed right SI joint injection was indicated. (Resp. Ex. \n1. P. 180 -185)  On June 12, 20, and 31, 2024, the claimant again received SI injections \non  the  right.  (Resp.  Ex.  1,  P.  185,  186)    On  August 8,  2024,  a decision  was  made  for \n\nRONALD LASLO – H203788 \n15 \n \nfurther diagnostic testing and the ordering of an MRI. (Resp. Ex. 1, P. 200 – 209)  On \nSeptember  10,  2024,  an MRI  of  the  right  hip  occurred  which  provided  for  right  hip \nosteoarthropathy with   a   worn   and   flattened   labrum   and   intermediate   grade \nchondromalacia acetabulum roof.  No acute ten osseous injury was noted. (Resp. Ex. 1, \nP. 210) \n An authentic 4D report dated October 16, 2024, provided for a high-grade cartilage \nloss  from  the anterosuperior  acetabulum, associated  with  subchondral  cysts  and  an \nanterosuperior  labral  tear.    The  report  further  mentioned that the  labral tear  could  be \nrelated to chronic and related arthritis but went on to state that an acute labral tear would \nbe difficult to exclude. (Resp. Ex. 1, P. 211, 212.) \n Finally, an IME from Dr. O’Malley dated January 13, 2025, provided that based on \na certain degree of medical certainty, he still did not believe that the patient’s hip arthritis \nwas related to his work injury. (Resp. Ex. 1, P. 213, 214)  \n The respondents also submitted multiple pages of documentary evidence without \nobjection.  On  February  21,  2022,  the  claimant  showed  interest  in  a  promotion  to  the \nposition of Sergeant in the Arkansas State Police (Resp. Ex. 2, P 1 – 4)  An article with \npictures in Firewire, dated February 22, 2022, pictured the claimant with some vehicles \nand provided that the claimant was the Fire Chief of the Cord Fire Department. (Resp. \nEx. 2, P. 5).  The respondents also submitted a form entitled Workers’ Compensation \nIncident  Report  signed  by  the  claimant which provided  that  no  medical  treatment  was \nrequired  and  included  the  Arkansas  N  Form  in  regard  to  the  accident  and  the \nacknowledgement  signed  by  the  claimant,  as  well  as  Form  PECD  1  which  was  the \nemployee’s report of the accident. (Resp. Ex. 2, P. 6 - 10) \n\nRONALD LASLO – H203788 \n16 \n \n The claimant resigned from the Arkansas State Police effective August 21, 2022, \nby a letter dated August 11, 2022, which was accepted by a letter from Colonel Bryant \ndated  August  16,  2022.  (Resp.  Ex.  2,  P.  11 - 14)    A  Memorandum  dated  October  10, \n2022, provided that the claimant was interviewed by the Office of Professional Standards \nregarding an alleged policy violation involving working with the Cord Fire Department after \nbeing  injured  in  a  crash  investigation  and  while  on  workers’  compensation  for  the \nArkansas State Police.  It was noted that the claimant had a Secondary Employment form \ndated  February  28,  2022.    The  claimant  was  found  to have not  violated  policy due  to \nreceiving no compensation from the Cord Fire Department and was exonerated from the \ncomplaint.    However, the  report  went  on  to  provide  that  the  claimant  was  not  in  good \nstanding with the Arkansas State Police because he resigned while under investigation. \n(Resp.  Ex.  2,  P.  15,  16)    Various  corporate  entities  were also investigated  which \napparently primarily involved the claimant’s father per the testimony taken above. \n Pages  of  emails  between  the  attorney  for  the  claimant  and  the  attorney  for  the \nState Police  were  also  made  part  of  the  record which involved requesting  information \nregarding the claimant’s treatment and the status of an appointment. (Resp. Ex. 2, P. 32 \n– 37)    Finally,  there  was  a  Ballotpedia Independence  County  Constable printout  dated \nNovember of 2024, which provided that the claimant was on the ballot for Constable in \nthe Dota Township. (Resp. Ex. 2, P. 38, 39) \n The respondents’ final exhibit consisted of four CD’s which contained surveillance \nvideos  from  the  date of  May  19,  2024,  through  June  14,  2024,  as  well  as  surveillance \nreports and Facebook photos.  The Facebook photos showed the claimant sitting in an \noverstuffed recliner petting and hugging his dog.  Additionally, there were photos of a pile \n\nRONALD LASLO – H203788 \n17 \n \nof logs that appeared to be in the process of becoming firewood.  The four CDs introduced \ninto evidence were viewed multiple times.  The videos contained footage of a dark colored \n(described as dark blue in the surveillance report) Ford F-150 with emblems on the rear \ncab window that apparently referred to the claimant’s status as constable and which also \ncontained  a  short  emergency  light  bar  on  the  roof.  There  was  also a  video of  a  dark \ncolored late model Ford Edge driving and parking.  Part of the video showed the claimant \ngetting out of the Ford Edge and going to a bathroom door and then to another door with \nno apparent trouble.  Another section of video, however, showed the claimant getting out \nof the Ford Edge with a stiff and hobbling gait when he walked away from the vehicle.  \nOne section of video showed a female, who appeared to be the claimant’s wife, carrying \na very large flowerpot which nearly blocked out her entire chest and abdomen from the \nvideo, while the claimant walked along side her and opened the rear hatch of the Ford \nEdge.    Another  section  showed  what  appeared  to  be  the  same  women  along  with  the \nclaimant, looking for something on the side of a street or road.  Finally, there was a video \nof the claimant’s truck pulling an empty trailer.  Testimony was taken where the claimant \nadmitted being involved in removing a box springs and mattress and moving a console \ntelevision, which was not lifted but rotated out of the trailer.  The trailer was loaded by his \nwife, daughter, and her boyfriend.   \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn  the  present  matter,  the  parties  stipulated that the  claimant  sustained  a \ncompensable work-related injury on May 10, 2022.  The claimant is therefore not required \nto establish “objective medical findings” in order to prove that he is entitled to additional \nbenefits. Chamber Door Indus., Inc. v Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997). \n\nRONALD LASLO – H203788 \n18 \n \nHowever, when assessing whether medical treatment is reasonably necessary for \nthe treatment of a compensable injury, we must analyze the proposed procedure and the \ncondition that it  is  sought  to  remedy.   The  respondent  is  only  responsible  for  medical \nservices which are causally related to the compensable injury.  Treatments to reduce or \nalleviate symptoms resulting from a compensable injury, to maintain the level of healing \nachieved, or to prevent further deterioration of the damage produced by the compensable \ninjury are considered reasonable medical services. Foster v. Kann Enterprises, 2009 Ark. \nApp. 746, 350 S.W.2d 796 (2009).  Liability for additional medical treatment may extend \nbeyond  the  treatment  healing  period  as  long  as  the  treatment  is  geared  toward \nmanagement of the compensable injury. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. \n230, 180 S.W.3d 31 (2004). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe  Arkansas  Workers’  Compensation  Act   and   must   sustain   that   burden   by   a \npreponderance of the evidence.  Dalton v. Allen Engineering Co., 66 Ark. App 260, 635 \nS.W.2d 543.  Injured employees have the burden of proving by a preponderance of the \nevidence  that  the  medical  treatment  is  reasonably  necessary  for  the  treatment  of  the \ncompensable injury. Owens Plating Co. v. Graham, 102 Ark. App 299, 284 S.W. 3d 537 \n(2008).  What constitutes reasonable and necessary treatment is a question of fact for \nthe Commission. Anaya v. Newberry’s 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008).  \nThe claimant testified that he was injured when he stepped off the highway onto \nwhat he thought was the shoulder, which had apparently washed out, while working an \naccident one night.  He immediately felt a sharp pain from his toes to his head and heard \na pop.  His car kept him from falling.  After resting, he went ahead and worked on the \n\nRONALD LASLO – H203788 \n19 \n \naccident.  He was off work for the next two days and assumed he would recover, but was \nstill hurting when he returned to work, where he reported his injury.  The claimant was \nsent to Sherwood Urgent Care where he began navigating the labyrinth of our health care \nsystem.  Multiple well-respected physicians seemed at various times to point either to the \nclaimant’s right hip or his lower back as the primary cause of the claimant’s pain.  Issues \ninvolving the lumbar spine, sacrum, and hip, can clearly be difficult to distinguish in certain \ncases, similar to issues involving the cervical spine and shoulder.   \nThe testimony of the claimant is found to be believable and reliable.  The videos \nof record provided in one segment that the claimant appeared to have little to no problem \nambulating, but in a second segment, he appeared to have some difficulty getting out of \nthe Ford Edge and that he somewhat hobbled away.  The claimant denied loading the \ntrailer that was in one video but did admit unloading the mattress and box springs and \nrotating  a  console  television  off  the  trailer.    The  claimant  was  found  to  have  a  reliable \neffort in 48 out of 48 categories in regard to a functional capacity exam.  He testified that \nhis wife did the actual work in regard to a fire run and he only drove the truck. This would \ncorrespond with one of the videos of record where the claimant walked beside or behind \na woman who appeared to be his wife and who was carrying an enormous pot to their car \nwhile the claimant opened the hatch to the Ford Edge.    \nThe claimant was questioned about his actions as a duly elected constable, and \nhe responded that he did nothing in that position but was only a place holder.  Dr. Barry \nBaskin stated in his second opinion that although he felt the hip was the primary cause of \nclaimant’s pain, “his pain is quite severe, I believe.”    Other doctors pointed to the back \nas the primary problem.  Dr. Magio, who appears to be a back specialist and who was in \n\nRONALD LASLO – H203788 \n20 \n \nthe chain of referral, made a referral to Dr. Edwards at Bowen Hefley for a hip evaluation \non August 8, 2024.  This recommendation is the primary issue currently before us.             \nQuestions  concerning  the  credibility  of  witnesses  and  the  weight  to  be  given  to \ntheir testimony are within the exclusive province of the Commission.  Powers v. City of \nFayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007).  Where there are contradictions \nin the evidence, it is within the Commissions’ province to reconcile conflicting evidence \nand to determine the true facts.  Cedar Chem. Co. v. Knight, 99 Ark. App. 162, 258 S.W.3d \n394 (2007).  The Commission has the authority to accept or reject medical opinions and \nto  determine their medical  soundness  and  probative  force.   Oak  Grove  Lumber  Co.  v. \nHighfill, 62  Ark.  App. 42,  968  S.W.2d  637  (1998).    However,  the Commission  may  not \narbitrarily disregard the testimony of any witness.  Patchell v. Wal-Mart Stores, Inc., 86 \nArk. App. 230, 184 S.W.3d 31 (2004). \nIn workers’ compensation law, the employer takes the employee as he finds him \nand employment circumstances that aggravate pre-existing conditions are compensable. \nHeritage Baptist Temple v. Robinson, 82 Ark. App. 460, 120 S.W. 3d 150 (2003).  The \nparties  agreed that  the  claimant  suffered  a  compensable right  hip injury  from  a  work-\nrelated incident on May 10, 2022.  The testimony of the claimant is found to be believable \nin that he was not aware of pain and a problem in his right hip prior to the work-related \naccident.  A labrum tear was noted in some of the imaging studies involving the right hip \nafter the work-related incident on May 10, 2022, and the claimant desires to treat with Dr. \nEdwards for this. \nAfter reviewing all of the evidence, without giving the benefit of the doubt to either \nparty, there is no alternative but to find that the claimant has satisfied his burden of proof \n\nRONALD LASLO – H203788 \n21 \n \nto  prove by  a  preponderance  of  the  credible  evidence  that  the  medical  treatment \nrequested,  specifically  additional review  and treatment  by  Doctor Edwards, is causally \nrelated and reasonably necessary for the treatment of the stipulated compensable work-\nrelated right hip injury and is approved.  \n IT IS SO ORDERED. \n \n      ___________________________ \n      JAMES D. KENNEDY  \n      Administrative Law Judge","textLength":39819,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203788 RONALD LASLO, EMPLOYEE CLAIMANT ARKANSAS STATE POLICE, EMPLOYER RESPONDENT PUBLIC EMPLOYEES CLAIMS DIVISION, CARRIER/TPA RESPONDENT AMENDED OPINION FILED APRIL 29, 2025 Hearing before Administrative Law Judge, James D. Kennedy, on the 26 th day of F...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["hip","back","shoulder","knee","lumbar","fracture","cervical"],"fetchedAt":"2026-05-19T22:42:09.921Z"},{"id":"alj-H402807-2025-04-29","awccNumber":"H402807","decisionDate":"2025-04-29","decisionYear":2025,"opinionType":"alj","claimantName":"Lawrence Ragan","employerName":"Mountain View School District","title":"RAGAN VS. MOUNTAIN VIEW SCHOOL DISTRICT AWCC# H402807 April 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RAGAN_LAWRENCE_H402807_20250429.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RAGAN_LAWRENCE_H402807_20250429.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H402807 \n \nLAWRENCE RAGAN, EMPLOYEE    CLAIMANT \nMOUNTAIN VIEW SCHOOL DISTRICT, \nSELF INSURED        RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOC.,    RESPONDENT \nTHIRD PARTY ADMINISTRATOR \n \nAMENDED OPINION AND ORDER FILED APRIL 29, 2025  \nThe Hearing before Administrative Law Judge James D. Kennedy in Clinton, \nArkansas, was held on April 3, 2025. \nThe Claimant was pro-se and failed to appear. \nRespondents were represented by Jarrod Parrish, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A  hearing  was  held  in  the  above  styled  matter  on the  3\nrd\n day  of April 2025, in \nClinton, Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute pursuant \nto Ark. Code Ann. 11-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.   \nThe claimant was pro se and failed to appear on his own behalf.  The respondents were \nrepresented  by Jarrod  Parrish of  Little  Rock,  Arkansas,  who introduced 10  pages  of \ndocuments that were admitted into the evidentiary record.  \n The  documents  included  a First  Report  of  Injury  filed  on  April 19,  2024, which \ndescribed  the  claimed  injury  as  an  ankle  fracture  that  occurred  while the claimant  was \nwalking  on  a  slope  between the parking  lot  and  a  bus, and  which occurred when he \nslipped and fell.  An AR-2 was filed on April 30, 2024, which provided that the claim was \ndenied  due  to  not  arising  out  of  or  within  the  course  and  scope  of  the  claimant’s \n\nLAWRENCE RAGAN – H402807 \n2 \n \nemployment.  On  May  10,  2024,  the  claimant  contacted  the  Commission  by  letter, \nrequesting  a  review  of  his  claim  denial.    The  claimant  responded to  the  prehearing \nprocess and the matter was set for a hearing on January 23, 2025, in Clinton Arkansas.   \n On  December  29,  2024,  the  Claimant  notified  the  Commission  by  email  that  he \nwas cancelling his request “for appeal in regard to the above-referenced claim” and the \nhearing  was  cancelled.  On  or  about  February 18,  2025,  the  Respondents  notified  the \nCommission  by  letter  that  they  were  requesting  that  the  claim  be  dismissed  due  to  no \nForm AR-C being filed by the Claimant and for the Commission to take “whatever action \nis necessary” for the dismissal of the claim.  No response was filed by the Claimant so \nappropriate notice of a Motion to Dismiss hearing was provided to the Claimant setting \nthe hearing for April 3, 2025, at 10:00 a.m., in Clinton Arkansas.  Prior to the hearing, the \nclaimant notified the Commission he did not wish to pursue his claim with the Workers’ \nCompensation Commission. \n A  hearing  was  held  on April  3, 2025, and  the  claimant failed  to  appear.    The \nRespondents  were  represented  by Jarrod Parrish,  who  requested  that  the  matter  be \ndismissed pursuant to Rule 099.13 of the Arkansas Workers’ Compensation Commission \nand Ark. Code Ann. 11-9-702. \n \n \n \n \n\nLAWRENCE RAGAN – H402807 \n3 \n \nORDER \n Pursuant to the above statement of the case, as well as the documents entered \ninto the evidentiary record and statements by the Attorney for the Respondents, there is \nno alternative but to grant the Motion to Dismiss without prejudice pursuant to Rule 099.13 \nof the Arkansas Workers’ Compensation Commission and Ark. Code Ann. 11-9-702.   \nIT IS SO ORDERED. \n                \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":3526,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402807 LAWRENCE RAGAN, EMPLOYEE CLAIMANT MOUNTAIN VIEW SCHOOL DISTRICT, SELF INSURED RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC., RESPONDENT THIRD PARTY ADMINISTRATOR AMENDED OPINION AND ORDER FILED APRIL 29, 2025 The Hearing before Administrative Law Judge J...","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:1"],"injuryKeywords":["ankle","fracture"],"fetchedAt":"2026-05-19T22:42:11.992Z"},{"id":"alj-H404533-2025-04-24","awccNumber":"H404533","decisionDate":"2025-04-24","decisionYear":2025,"opinionType":"alj","claimantName":"Erick Alverez","employerName":"Afco Steel, Inc","title":"ALVAREZ VS. AFCO STEEL, INC. AWCC# H404533 April 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Alverez_Erick_H404533_20250424.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Alverez_Erick_H404533_20250424.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H404533 \n \n \nERICK E. RAMIREZ ALVAREZ, EMPLOYEE CLAIMANT \n \nAFCO STEEL, INC., \nEMPLOYER RESPONDENT \n \nFARMINGTON CASUALTY CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED APRIL 24, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on April  24,  2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Guy  Alton  Wade,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on April 24, 2025, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   Admitted  into \nevidence    was Respondents’  Exhibit  1,  forms,  pleadings,  reports,  and \ncorrespondence related to this claim, consisting of 11 numbered pages.    Also, in \norder  to  address  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1) \n(Repl. 2012)(Commission must “conduct the hearing . . . in a manner which best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe record documents from the Commission’s file on the claim, consisting of 15 \n\nALVEREZ – H404533 \n \n2 \n \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \nArk.  App.  LEXIS 549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on July  22,  2024,  Claimant \npurportedly  suffered  an  injury  to  his  left  ankle at  work  on June  22,  2024,  while \n“jumping from one beam to another.”  According to the Form AR-2 that was filed \non July 31, 2024, Respondents accepted the claim as a medical-only one. \n On July 16, 2024, through then-counsel Mark Alan Peoples, Claimant filed \na Form AR-C, requesting the full range of additional benefits and alleging that he \nactually  injured  both  ankles  in  the  June  22,  2024,  incident.  Counsel  in  an  email \naccompanying  this  filing  stated  that  he  was  “not  asking  for  a  hearing.”  \nRespondents’ counsel entered their appearance on September 12, 2024; and on \nthat  same  day,  he  propounded  discovery  to  Claimant.    That  discovery  remains \nunanswered. \n On December 2, 2024, Peoples moved to withdraw from his representation \nof  Claimant.    In  an  Order  entered  on December  16,  2024, the  Full  Commission \ngranted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary 3, 2025.  On that date, Respondents filed the instant motion, asking for \ndismissal of the claim under AWCC R. 099.13 “for lack of prosecution.”  My office \n\nALVEREZ – H404533 \n \n3 \n \nwrote Claimant on February 12, 2025, asking for a response to the motion within \n20  days.   The  letter  was  sent  by  first  class and  certified mail  to the Little  Rock, \nArkansas address for  her listed  in  the  file and  on his Form  AR-C.   The  certified \nletter was  returned  to  the  Commission,  unclaimed,  on  March  18,  2025; but the \nfirst-class letter was not returned.  Regardless, no response from Claimant to the \nmotion was forthcoming.  On March 10, 2025, a hearing on the Motion to Dismiss \nwas  scheduled for April  24,  2025, at 9:30 a.m.  at  the Commission in Little  Rock.  \nThe  notice  was  sent  to  Claimant  via  first-class  and  certified  mail to  the  same \naddress as before.  As before, the certified letter was returned to the Commission, \nunclaimed, on April 11, 2025, while the first-class letter was not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the foregoing authority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n\nALVEREZ – H404533 \n \n4 \n \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \n\nALVEREZ – H404533 \n \n5 \n \nClaimant has failed to pursue her claim because he has taken no further action in \npursuit of it (including appearing at the April 24, 2025, hearing to argue against its \ndismissal) since the filing of his Form AR-C on July 16, 2024.  Thus, the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nthe argument made under § 11-9-702(a)(4) will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7439,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H404533 ERICK E. RAMIREZ ALVAREZ, EMPLOYEE CLAIMANT AFCO STEEL, INC., EMPLOYER RESPONDENT FARMINGTON CASUALTY CO., CARRIER RESPONDENT OPINION FILED APRIL 24, 2025 Hearing before Administrative Law Judge O. Milton Fine II on April 24, 2025, in Little Rock, Pul...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:41:57.404Z"},{"id":"alj-H303959-2025-04-24","awccNumber":"H303959","decisionDate":"2025-04-24","decisionYear":2025,"opinionType":"alj","claimantName":"Terra Hood","employerName":"Crossmark Inc","title":"HOOD VS. CROSSMARK INC. AWCC# H303959 April 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HOOD_TERRA_H303959_20250424.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOOD_TERRA_H303959_20250424.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H303959 \n \nTERRA D. HOOD, EMPLOYEE   CLAIMANT \n \nCROSSMARK INC., EMPLOYER RESPONDENT \n \nGALLAGHER BASSETT SERVICES INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED APRIL 24, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents are represented by RICK BEHRING, JR., Attorney, Little Rock,  Arkansas \n \nOPINION/ORDER \n \n On  October 24, 2023, claimant filed Form AR-C, alleging a compensable injury on June 10, \n2023.   Claimant was represented at the time by Mark A. Peoples,  who filed a Motion to Withdraw \non June 14, 2024 and was allowed to withdraw on July 10, 2024.     \nOn July 15, 2024 respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed her Form AR-C with the Commission, but she had not made a request \nfor a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for April 18, \n2025.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice was delivered to claimant on March 3, 2025.    Claimant did not \nrespond to respondent’s motion and did not appear in person at the hearing on April 18, 2025.  \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \n\nHood-H303959 \n \n2 \n \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2105,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303959 TERRA D. HOOD, EMPLOYEE CLAIMANT CROSSMARK INC., EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED APRIL 24, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington Co...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:41:59.552Z"},{"id":"alj-H003806-2025-04-24","awccNumber":"H003806","decisionDate":"2025-04-24","decisionYear":2025,"opinionType":"alj","claimantName":"Ritina Menansao","employerName":"George’s Processing Inc","title":"MENASAO VS. GEORGE’S PROCESSING INC. AWCC# H003806 April 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MENANSAO_RITINA_H003806_20250424.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MENANSAO_RITINA_H003806_20250424.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H003806 \n \nRITINA MENASAO, EMPLOYEE   CLAIMANT \n \nGEORGE’S PROCESSING INC., EMPLOYER RESPONDENT \n \nCORVEL ENTERPRISE COMP., INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED APRIL 24, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is pro se and did not attend the hearing. \n \nRespondents are represented by KRISTY E. BOEHLER, Attorney, Fayetteville Arkansas \n \nOPINION/ORDER \n \n On   August  5,  2020,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on June 5, \n2020.   Claimant was represented at the time by Jarid M. Kinder, who filed a Motion to Withdraw on \nMarch 29, 2022 and was allowed to withdraw on April 8, 2022.   \nOn February 24, 2025, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed her Form AR-C with the Commission, but she had not made a \nrequest for a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for \nApril  18,  2025.    Notice  of  the  scheduled  hearing  was  sent  to claimant  by  certified  mail  at  the  last \nknown address in the Commission’s file.  The notice was returned unclaimed on March  14,  2025.   \nClaimant did not respond to respondent’s motion and did not appear in person at the hearing on April \n18, 2025.  \nI find it has been more than six months since prior to this hearing and that no request for a \n\nMenansao-H003806 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2143,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H003806 RITINA MENASAO, EMPLOYEE CLAIMANT GEORGE’S PROCESSING INC., EMPLOYER RESPONDENT CORVEL ENTERPRISE COMP., INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED APRIL 24, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Wash...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:42:01.614Z"},{"id":"alj-H300389-2025-04-24","awccNumber":"H300389","decisionDate":"2025-04-24","decisionYear":2025,"opinionType":"alj","claimantName":"Tracy Miller","employerName":"Baptist Health Regional Hospitals","title":"MILLER VS. BAPTIST HEALTH REGIONAL HOSPITALS AWCC# H300389 April 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MILLER_TRACY_H300389_20250424.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MILLER_TRACY_H300389_20250424.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H300389 \n \nTRACY MILLER, EMPLOYEE CLAIMANT \n \nBAPTIST HEALTH REGIONAL HOSPITALS, EMPLOYER RESPONDENT \n \nCLAIMS ADMMINISTRATIVE SERVICES                                                         RESPONDENT \n \n \n OPINION FILED APRIL 24, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On February  10,  2025,  the  above  captioned  claim  came  on  for a hearing  at Fort  Smith, \nArkansas. A pre-hearing conference was conducted on November 7, 2024, and a pre-hearing order \nwas filed on that same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2.  The employee/employer/carrier relationship existed on March 26, 2021. \n3.  The compensation rates are the maximum.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1.  Whether claimant is entitled to additional medical benefits. \n\nMiller-H300389 \n2 \n \n2.  Determination of the extent of permanent injury to claimant’s back. \n3.  Attorney fees. \nAll other issues are reserved by the parties. \nThe claimant contends that “She is not only entitled to an updated MRI regarding her back; \nshe is also entitled to further evaluation regarding her hip as recommended by Dr. Frank Tomecek. \nShe was assessed an 18% impairment rating to the body as a whole regarding her back; however, it is \nher recollection that she only was paid for a 10% impairment rating. The claimant contends that it is \npremature  to  determine  the  extent  of  her  permanent  impairment  at  this  time  since  diagnostic \nevaluation  regarding  her  back and  hip  as  directed  by  Dr.  Tomecek  is  still  pending. However,  the \nclaimant  reserves  her  right  to  litigate  extent  of  permanent  impairment  as  well  as  possibly  extent  of \nwage loss disability. The claimant contends that her attorney is entitled to an attorney’s fee in regard \nto  any  disability  benefits  to  which  she  is  determined  to  be  entitled  that  the  respondents  have  not \nalready paid.” \nThe  respondents  contend  that  “The  MRI  recommended  by  Dr.  Tomecek  was actually \napproved by respondent/adjuster on September 18, 2024. Respondents are unsure why that diagnostic \ntest has not been scheduled. With regard to the impairment rating, it is respondents’ position that the \n8%  assigned  subsequent  to  testing  and  measurements  taken  by  the  Functional  Testing  Centers  on \nAugust 24, 2022, is per the AMA Guides, Fourth Edition, and is the appropriate rating for claimant’s \nlumbar spine. It is respondents’ position that Dr. Tomecek’s rating was not assigned per the AMA \nGuides, Fourth Edition, and is a liability of respondent/carrier.”   \n From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the witness \nand  to  observe  her  demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \n\nMiller-H300389 \n3 \n \n \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nNovember 7, 2024, and contained in a pre-hearing order filed on that same date are hereby accepted \nas fact. \n 2.     Claimant has met her burden of proof by a preponderance of the evidence that she is \nentitled to additional medical treatment as directed by Dr. Frank Tomacek. \n 3.      Claimant’s request for a permanent impairment rating was withdrawn. \n \n FACTUAL BACKGROUND \n There  was an  unusual  amount of activity  in  this  matter  after  the  hearing.  On  February  12, \n2025, respondent submitted an email regarding the use of a double inclinometer by Dr. Tomacek to \nassess an 18% impairment rating to claimant. Having reviewed that email, claimant agreed that test \nwas not an objective finding and withdrew her claim for a permanent impairment rating of 18%. This \nexchange is blue backed to this record.  \n Shortly after the hearing, claimant’s attorney became aware of a document prepared by Dr. \nTomacek which had been requested by the claims adjuster for respondents, but which had not been \nprovided  to  claimant. A  Motion  to Submit  Newly  Discovered  Evidence was  filed  on  February  17, \n2025. Respondents opposed  this  motion. After  considering  the  circumstances,  I entered  an  Order \ngranting the claimant’s motion, allowing respondents the  opportunity  to depose  Dr.  Tomacek  or \notherwise present  evidence in  response  to  that document. Respondent  declined  to  do  so. This \nexchange is blue backed to this record. The addendum from Dr. Tomacek is addressed in the review \nof the medical records section of this opinion. \n\nMiller-H300389 \n4 \n \n \n When preparing this Opinion, I noticed that the compensability of claimant’s injury was not \nspecifically addressed in the stipulations. Respondent had paid for medical treatment in the past and \nhad paid claimant’s impairment rating, so I understood that I did not need to decide compensability. \nTo  clarify  that  this  was  a  stipulation,  I  emailed  the attorneys  on  April  23, 2025, and  they  both \nconfirmed this was an accepted claim. This exchange is blue backed to this record.  \nHEARING TESTIMONY \n \n Claimant was the only witness to testify at the hearing. She was injured in March 2021 when \nshe was helping a patient get on to an x-ray table when the patient started to fall. Claimant grabbed \nhim to keep him from falling and felt a pop in her back immediately. She was sent to Occupational \nMedicine and eventually wound up under the care of Neurosurgeon Dr. Frank Tomecek. Dr. Tomecek \nrecommended  that  claimant  have  surgery  on  her  back,  but  she  wanted  to  try  other  options  before \nundergoing an invasive  surgery. Claimant said  she underwent  physical  therapy  and  had a  couple  of \ninjections; she also went to Genesis Neck and Back for decompression treatment. She recently had \nundergone an MRI, after which Dr. Tomecek recommended a lumbar epidural steroid injection\n1\n. She \nhad not had that injection as of the time of the hearing because the insurance carrier denied that it \nwas appropriate. She stated that she was still having pain in her back and was willing to undergo the \nlumbar epidural steroid injection.  \n On cross-examination, claimant stated that she no longer worked for respondent Baptist but \nis  working  a  different  type  of  radiology  at  Mercy  Hospital  now. She  has  been  able  to  perform  her \nduties at Mercy without her job being modified because of her back injury. She was aware that she \nhad a nerve conduction study on her extremities that revealed no evidence of peripheral neuropathy. \n \n1\n I used the term claimant used in her testimony.  As the medical records show, Dr. Tomacek recommended a \ntransforaminal epidural steroid injection.  While that involves an injection into the back, it is not the same procedure.  \n\nMiller-H300389 \n5 \n \n \nShe had bilateral medial branch block injections which did not help. In July 2022, claimant stated that \nshe had an L3-4 epidural steroid injection and still had pain in her buttocks that was causing her to \nhave  difficulty  sleeping  at  night. Claimant  did  not  recall  what  Dr.  Tomecek  found during  her \nexaminations  on  September  5, 2024, and  January  9,  2025,  but  would  not  argue  with  what  was \ncontained in the report. She believed her gait was normal and that her sensation to touch was intact. \nShe stated that it was correct that she had not undergone physical therapy since 2022. \n On redirect-examination, claimant stated that she was shifting in her chair because she always \nhas a burning pain in her left buttock area. Switching her position in the chair relieves the pressure \nshe feels.  \n Claimant  again  stated  that  she  had  not  undergone  surgery  on  her  back  since  Dr.  Tomecek \nrecommended it but had no idea if the herniated disc had just disappeared over-time. She knew the \npain had not disappeared and it was pain that she did not have before she was injured.  \n On recross-examination, claimant agreed with the MRI report that showed that she had mild \ndisc bulges at a few levels with no stenosis. She did not have a report that showed a herniated disc.  \n \nREVIEW OF THE EXHIBITS \n \n Claimant submitted thirty-eight pages of medical records beginning April 2, 2021, and ending \nJanuary  13,  2025. Respondents  submitted  seventy-three  pages  with little duplications  to  what  was \nsubmitted by claimant. This review will attempt to summarize these records in chronological order. \n There were records predating the injury in question going back to August 2011 and concluding \nin  November  2012. These  records  demonstrate  that  in  2012,  claimant  was  treated  for  moderate \npersistent lower hip and lower back pain with shooting pains in her left leg. Claimant related that she \nhad  tripped  over clothes  and  twisted  her  back,  but  this  does  not  appear  to  be  related  to  her \nemployment. Claimant had a CT on February 10, 2012, which showed:  \n\nMiller-H300389 \n6 \n \n \n1. Left paracentral  bulging  of  the  disc  at  level  L4-L5. The  spinal  canal  and  bilateral \nneuroforamina remained patent. \n \n2. Otherwise, negative non-contrast CT of the lumbar spine.  \n \n3. MRI would be more sensitive for further characterization of disc pathology as clinically \nindicated.  \n  \nSubsequent  records  mention  that  claimant  was  mildly  improved  with  physical  therapy  and \nmedication. On March 1, 2012, claimant was released to light duty only. This was increased to light-\nmoderate duty on April 3, 2012, and then to “full duty as she feels comfortable doing so. She was last \nseen for this injury on July 2, 2012, when she reported that she continued to hurt herself at work and \ndid  not think  she  could  keep  doing  her  job. She  was  not  restricted  in  her  duties  at  that  time. The \nrecords in 2012 conclude with a referral to pain management regarding claimant’s chronic back and \nleft shoulder pain. There were no records submitted regarding the treatment by the pain management \nphysician or any other treatment for her back from 2012 through March 2021. \n Claimant was seen by Dr. Ian Cheyne on April 7, 2021. She described how she was injured \nwhile assisting a patient out of a wheelchair and fell on her lower back and left hip on March 26, 2021. \nDr. Cheyne diagnosed her with a muscle strain of her facia and tendon of lower back and radiculopathy \nin her lumbar region. The plan of care was reported to do physical therapy three times a week for two \nweeks and an MRI was scheduled. Claimant was placed on restricted duty, with a lifting limitation of \ntwenty  pounds or  less,  repetitive  lifting  of  ten  pounds  or  less, with limited  bending,  stooping,  and \ntwisting. She was to alternate sitting and standing and walking as tolerated.  \n Claimant next saw Dr. Cheyne on April 29, 2021, where Dr. Cheyne reviewed the MRI results \nwith  her. Claimant  reported  that  she  had  some  improvement  with  physical  therapy. The  diagnosis \nremained the same and the plan of care was for more physical therapy and an MRI on her left hip. \nClaimant was also referred to pain management for  a lumbar epidural steroid injection (LESI). Her \n\nMiller-H300389 \n7 \n \n \nrestrictions remained the same. \n Except  for  x-rays  of  her  spine  at  Northeastern  Health  Systems  in  Sallisaw,  Oklahoma  on \nNovember 3, 2021, there is a gap in the records from April 29, 2021, until March 30, 2022, that was \nnot fully explained through the testimony. However, I note that Dr. Tomecek was the physician that \nordered the x-rays and from the testimony, claimant was referred to Dr. Tomecek by respondents. \nThe x-ray findings were “sacralization of the L5 vertebrae. No fracture of spondylolisthesis including \non flexion extension lateral views. The lumbar vertebral body height and disc spaces are normal. No \nabnormal curvatures.”  The impression was that claimant had “no acute disease process.” \n The  next  notes  provided  were  from  Baptist  Health  Pain  Management  Clinic  on  March  30, \n2022. The history provided at that visit revealed that claimant had undergone an LESI and a left SI \njoint injection with some relief.\n2\n  She also had a TENS unit which she reported was also of some help. \nIn his assessment, Dr. David Florencio Fran found the following: \n1. 51-year-old female with a history of chronic low back pain, lumbar spondylosis, \nlumber facet mediated pain, left sacroiliac joint dysfunction, left SI joint pain, left \ntrochanteric bursitis who failed conservative treatment measures in the past. We \nwill  schedule  a  bilateral  medial  branch block of  the  L3,  L4,  L5,  S1  for  possible \nradial frequency ablation for long term relief. \n \n2. Tramadol 50 mg 1p.o. four times daily as needed for pain. \n3. Follow up in the main clinic one week post injection for reevaluation and further \nrecommendations. \n \n4. Consider a repeat left sacroiliac joint injection in the future. \nDr. Fran noted that the lumbar spine study of April 16, 2021, showed: \n1. Grade one retrolisthesis of the L4-5.  \n \n2. Posterior  disc  protrusions  at  L1-L2,  L2-L3,  L3-L4,  L4-L5,  without  significant  canal \nnarrowing.  \n \n2\n There was no record documenting which level of claimant’s spine received the referenced LESI, or when it was \nperformed.  \n\nMiller-H300389 \n8 \n \n \n3. Mild right foraminal narrowing at L2-L3 mild left foraminal narrowing at L3-L4.\n3\n  \nOn April 12, 2022, claimant had the aforementioned injection at the L3, L4, L5, and S1. She \nreturned to see Dr. Fran on May 13, 2022, and reported that she failed to get any significant relief \nfrom the injections. On June 7, 2022, claimant had a L3-4 transforaminal epidural steroid injection \n(TFESI); on July 15, 2022, she reported that her low back had improved but she continued to have a \nburning sensation in her left buttocks down the lateral aspect of her left ankle. \n Claimant saw Dr. Tomecek on August 4, 2022, and when she declined surgical intervention, \nDr. Tomecek did not have anything else he could provide for her. She was released from medical care \nwith  permanent  restrictions  of  no  lifting  over  twenty-five  pounds  and  no  repetitive  bending. She \nshould be able to alternate sitting and standing while working. \n Claimant  was  then  referred  by respondents to  Functional  Testing  Centers  for  a  Functional \nCapacity Evaluation (FCE) on August 24, 2022. Claimant put forth a reliable effort, demonstrating an \noccasional bimanual lift or carry up to forty pounds, with the ability to perform lifting or carrying of \nup to twenty pounds on a frequent basis. Claimant also demonstrated an occasional right extremity \nlift of twenty pounds as well as a left extremity lift of up to twenty pounds of lifting unilaterality from \nthe floor to shoulder level. The examiner noted muscle spasms on the right side of claimant’s lumbar \nregion. \n There were no records submitted between the FCE and a nerve conduction test conducted \non May 22, 2024. The referring provider for that test was Dr. Margaret Cox, and the complaint was \n“numbness and tingling in the upper and lower extremities of both sides.”  The impressions were \n“normal  nerve  conductions  studies  of  all  four extremities. There  is  no  evidence  of  peripheral \n \n3\n Dr. Cheyne’s records of April 29, 2021, stated that claimant was in the office to see him for MRI results, but there \nwas no mention in his record of what was related to claimant in that visit. However, I see no reason to believe claimant \nhad more than one MRI in April 2021. \n\nMiller-H300389 \n9 \n \n \nneuropathy in the study.” \n Following the nerve conduction study, claimant returned to see Dr. Tomecek on September \n5, 2024. Dr. Tomecek recited the history of her previous treatment and noted that claimant is using a \nTENS unit and has seen a chiropractor to help her deal with her pain. Dr. Tomecek ordered an MRI \nof the lumbar spine, which was performed on October 16, 2024. For reasons that were not explained, \nthe admissions and final diagnosis mentioned an unspecified injury of the right ankle. However, it is \napparent that there was an MRI of the lumbar spine performed with these findings: \n“There are four non-rib bearing lumbar vertebrae bodies. S1 is transitional in \nappearance. There are  no  fractures. The  conus  is  unremarkable.    Mid- \nposterior or lateral bulging disc at L2-L3, and L3-L4 and certainly centrally at \nL4-S1. No disc protrusion or significant canal or foraminal stenosis.” \n \nAfter the MRI, claimant returned to Dr. Tomecek on January 9, 2025. At that time, claimant \nwas working  on  pain  management with  Dr.  Strickland and  Dr.  Goodman  (from  whom  no  records \nwere submitted). Following his examination Dr. Tomecek recorded:  \n“This is a pleasant 54-year-old female who has had chronic low back pain, left \nparaspinal  pain,  left  buttock  pain,  and  hip  pain. She  is  not  interested  in  any \ntype of major surgical intervention. She has a degenerative disc at L4-L5 with \na facet arthropathy at L4-L5, causing mild to moderate foraminal stenosis. Her \nsymptoms  are  worse  on  the  left  consistent  with  left  L5  radiculopathy. I  am \nrecommending  a  left  L4-L5  transforaminal  epidural  steroid  injection  by  Dr. \nStrickland at the facility where she works.  \n \nI  feel  she  can  continue  to  work  light-duty  with  the  following  temporary \nrestrictions:  no lifting  over  forty  pounds,  no  pushing  or  pulling  over  sixty \npounds. I did not prescribe her any medications today. I would like to see her \nback in a month for routine follow-up. She is approaching maximum medical \nimprovement. I would expect to see her be at maximum medical improvement \nin one to two months.” \n   \n Although claimant did not see Dr. Tomecek on January 24, 2025, he had an addendum to his \nrecords at the request of respondents’ claim representative. The question posed to Dr. Tomecek was \nwhether the claimant’s need for medical treatment related to an injury that occurred in 2012 or was \n\nMiller-H300389 \n10 \n \n \nrelated to her most recent back injury. Dr. Tomecek stated that within a reasonable degree of medical \ncertainty, her current condition was related to her 2021 lifting injury.  \n Respondents submitted a Notice of Non-Certification prepared by Dr. Michael Levy. Dr. Levy \nwas provided only the October 15, 2024, radiology report, and the notes from Dr. Tomacek’s January \n9, 2025, examination of claimant. Dr. Levy issued a denial based in part on “there should be a failure \nof conservative treatments including NSAID and physical therapy for 4 weeks or more.” He applied \nthe Official Disability Guidelines to what little information he was provided and issued an unfavorable \ndecision to Dr. Tomacek’s recommended course of treatment.  \nADJUDICATION \n \n As set forth above, claimant withdrew her claim for a permanent impairment rating based on \nthe results of the double inclinometer test Dr. Tomacek relied upon in assessing a rating. The only \nissue  remaining  is whether  claimant  proved  she  is  entitled  to  additional  medical  benefits  as \nrecommended  by  Dr.  Tomacek. A  claimant  bears  the  burden  of  proving  entitlement  to  additional \nmedical treatment for a compensable injury. LVL, Inc. v. Ragsdale, 2011 Ark. App. 144, 381 S.W.3d \n869. Once it  has  been  established  that  a  claimant  has  sustained  a  compensable  injury, she  is  not \nrequired to offer objective medical evidence to prove entitlement to additional benefits, Ark. Health \nCtr. v. Burnett, 2018 Ark. App. 427, at 9, 558. S.W.3d 408, 414.  \n There  were  two conflicting  medical  opinions  as  to  whether  the  recommended  TFESI  is \nreasonable and necessary. I have assigned minimal evidentiary weight to the opinion of Dr. Levy, as \nhe lacked an adequate set of records on which to base an informed opinion. For instance, he did not \nknow the full extent of the treatment claimant has received to date including the failed conservative \ntreatment and  the persistent  pain claimant has  endured. On  the  other  hand, Dr. Tomacek is  the \nclaimant's  treating  physician, and  has  had  the  benefit  of  seeing  claimant  over  many  visits.   I  have \n\nMiller-H300389 \n11 \n \n \ntherefore assigned significant evidentiary weight to his opinion.  \n That  did  not  end  my  evaluation,  however,  as  claimant still  has  the  burden  of  proving  by  a \npreponderance of the evidence that medical treatment she seeks is reasonable and necessary. Goyne v. \nCrabtree  Contracting  Company,  2009  Ark.  App.  200,  301  S.W.  3d  16. She  has had mixed success  with \ninjections  in  her  back. In  the  notes  of his  first  visit  with  claimant  on March  30,  2023, Dr.  Fran \nmentioned an SI joint injection that provided some relief and that a LESI had been performed; those \nrecords were not provided. He later did a bilateral medial branch block that did not alleviate claimant’s \npain. Claimant had a left L3-4 TFESI on June 29, 2022, and reported improvement on her low back \nfollowing that procedure. Dr. Tomacek is recommending a TFESI at the L4-5 level, which has not \nbeen so treated. Given claimant’s positive outcome with the TFESI at L3-4, I find she has proven it \nis  both  reasonable  and  necessary  for this  procedure  to  be  performed  as  recommended  by  Dr. \nTomacek.  \nORDER \n \n Claimant has met her burden of proving by a preponderance of the evidence that she is entitled \nto additional medical treatment as recommended by Dr. Tomacek. \n After the hearing, claimant withdrew her claim for permanent impairment, and such was not \nconsidered in this decision. \n Pursuant to A.C.A. § 11-9-715(a)(1)(B)(ii), attorney fees are awarded \"only on the amount of \ncompensation for indemnity benefits controverted and awarded.\" Here, no indemnity benefits were \ncontroverted and awarded; therefore, no attorney fee has been awarded. Instead, claimant's attorney \nis free to voluntarily contract with the medical providers pursuant to A.C.A. § 11-9-715(a)(4). \n \n \n\nMiller-H300389 \n12 \n \n \n Respondent  is  responsible  for  paying  the  court  reporter's  charges  for  preparation  of  the \nhearing transcript in the amount of $403.45. \n IT IS SO ORDERED. \n \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":23134,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300389 TRACY MILLER, EMPLOYEE CLAIMANT BAPTIST HEALTH REGIONAL HOSPITALS, EMPLOYER RESPONDENT CLAIMS ADMMINISTRATIVE SERVICES RESPONDENT OPINION FILED APRIL 24, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Ar...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","hip","lumbar","neck","herniated","shoulder","strain","repetitive"],"fetchedAt":"2026-05-19T22:42:03.672Z"},{"id":"alj-H404087-2025-04-23","awccNumber":"H404087","decisionDate":"2025-04-23","decisionYear":2025,"opinionType":"alj","claimantName":"Rebekah Moore","employerName":"North Arkansas Regional Medical Center","title":"MOORE VS. NORTH ARKANSAS REGIONAL MEDICAL CENTER AWCC# H404087 April 23, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MOORE_REBEKAH_H404087_20250423.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOORE_REBEKAH_H404087_20250423.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404087 \n \nREBEKAH MOORE, Employee CLAIMANT \n \nNORTH ARKANSAS REGIONAL MEDICAL CENTER, Employer RESPONDENT \n \nRISK MANAGEMENT RESOURCES, Carrier RESPONDENT \n \n \n \n OPINION FILED APRIL 23, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Harrison, \nBoone County, Arkansas. \n \nClaimant   represented   by MARK   ALAN   PEOPES,   Attorney   at   Law, Little   Rock, \nArkansas. \n \nRespondents represented by MELISSA WOOD , Attorney at Law, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n On March  20,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at \nHarrison, Arkansas.   A pre-hearing conference was conducted on December 11, 2024, \nand  a pre-hearing order  was  filed on that  same  date. A  copy  of  the  Pre-hearing  Order \nhas  been  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  this \nclaim. \n 2.  The  employee/employer/carrier  relationship  existed  among  the  parties  at  all \nrelevant times. \n\nMoore – H404087 \n \n-2- \n At  the  time  of  the  hearing,  the  parties  agreed  to  stipulate  the  claimant  earned \nsufficient wages to be entitled to the maximum compensation rate for 2024. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Compensability of injury to claimant’s low back on March 24, 2024. \n 2. Claimant’s entitlement to medical treatment. \n 3.  Claimant’s  entitlement  to  temporary  total  or  temporary  partial  disability \nbenefits. \n 4. Attorney’s fee. \n At  the  time  of  the  hearing,  the  parties  indicated  that  in  the  event  the  claim  is \ncompensable  they  would  be  able  to  work  out  the  dates  claimant  would  be  entitled  to \ntemporary   total   disability   or   temporary   partial   disability   benefits;   therefore,   her \nentitlement to those benefits is not an issue at this time. \n The claimant contends that she hurt her back on the job on March 28, 2024, and \nthat she is entitled to medical treatment and a controverted attorney’s fee. \n The  respondents  contend the claimant’s lower back injury was initially accepted \nas  compensable,  and  some  benefits  were  paid  through  July  16,  2024;  however, \nrespondent  now  contends  that  claimant  did not  suffer  a  compensable  injury  to  her  low \nback  on  March  28,  2024.  Respondents  assert  that  claimant  sustained  an  intervening \nincident  or  new  injury  on  June  5,  2024,  and  that  any  need  for  treatment  is  associated \nwith that incident/injury. \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \n\nMoore – H404087 \n \n-3- \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted on December 11, 2024, and contained in a pre-hearing order filed that same \ndate are hereby accepted as fact. \n 2. The parties’ stipulation that claimant earned sufficient wages to be entitled to \nthe maximum compensation rate for 2024 is also hereby accepted as fact. \n 3. Claimant has failed to meet her burden of proving by a preponderance of the \nevidence that she suffered a compensable injury to her low back on March 28, 2024. \nFACTUAL BACKGROUND \n On  March  28,  2024,  claimant  was  working  for  respondent  as  a  paramedic  and \nresponded  to  a  call  involving  an  elderly  woman  who  was  in  a  bed;  comatose,  but \nlethargic.  She  was  covered  with  feces  and  vomit.  Claimant  testified  that  in  order  to \nmove  the  woman  they  used  a  MegaMover – a  device  that  looks  like  a  blanket  with \nhandles.  After  rolling  her  onto  the  device,  claimant  and  others  were  in  the  process  of \ncarrying  her out  of  the  house  to  place her  in  an ambulance.  As they  were going  down \nsome steps “...I felt a sharp pain in my lower right back.” \n After  arriving  back  at  their  station,  claimant  reported  this  incident  to  her  direct \nsupervisor,  Brent  Rouse.  She  also  completed  an  incident  form  but  did  not  seek  any \nmedical treatment. After that date, claimant continued to perform her regular job duties \nas  a  paramedic  for  respondent.  On  June  5,  2024,  claimant  had  Rouse  take  her  to \nUrgent Care for complaints of low back pain.  \n\nMoore – H404087 \n \n-4- \n After  receiving  conservative  treatment  for  her  back  complaints  which  included \nmedication,  injections,  physical  therapy,  and  work  restrictions;  claimant  underwent  a \nlumbar MRI scan which was interpreted as showing a disc herniation at L5-S1. Claimant \nunderwent a microdiscectomy by Dr. Evans on July 25, 2024.  \n The  medical  records  indicate  that  claimant  did  well  following  her  surgery  for \nabout a week before she had a sudden onset of recurrent pain. Another MRI scan was \nordered  which  showed  a  recurrent  disc  herniation.  A  second  surgical  procedure  was \nperformed by Dr. Evans on August 27, 2024. The medical records indicate the claimant \ndid well for about a month after the second surgery, but claimant again returned to Dr. \nEvans with complaints of recurrent low back and leg pain. Another MRI was performed \nwhich  again  revealed  a  recurrent  disc  herniation  at  L5-S1.  Dr.  Evans  recommended  a \nfusion and he performed that procedure on December 26, 2024.  \n Respondent  originally  accepted  this  claim  as  compensable  but  subsequently \ndenied  compensability.  As  a  result,  claimant  has  filed  this  claim  contending  that  she \nsuffered  a  compensable  injury  to  her  low  back  on  March  28,  2024.  She  requests \npayment  of  related  medical  treatment  for  her  compensable  injury  and  a  controverted \nattorney fee. \nADJUDICATION \n Claimant contends that she suffered a compensable injury to her low back as a \nresult of moving an elderly woman to an ambulance on March 28, 2024. Claimant’s \nclaim is for a specific injury, identifiable by time and place of occurrence.  \nIn order to prove a compensable injury as the result of a specific incident that is \nidentifiable   by   time   and   place   of   occurrence,   a   claimant   must   establish   by   a \n\nMoore – H404087 \n \n-5- \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \nAfter reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet her burden of proof. \nFirst,  I note  that  there  is  no  question  that  claimant  reported  an  injury  to  her  low \nback  on  March  28,  2024.  Claimant  testified  that  when  she  returned  to  the  station, she \nreported the incident to her supervisor, Brent Rouse, and completed an incident report. \nRouse confirmed that claimant reported having low back pain on March 28 after going \non  a  call.  Likewise,  other  employees,  Leah  Decker  and  Amanda  Perse,  also  testified \nthat claimant mentioned having low back pain after going on a call on March 28.  \nHowever,   simply   reporting   an   injury   does   not   satisfy   all   the   elements   of \ncompensability.  For  reasons  discussed  below,  I  do  not  find  that  claimant  has  met  her \nburden of proof.  \n Although claimant did report an injury to her supervisor, she did not request any \nmedical  treatment  that  day.  On  direct  examination,  claimant  was  asked  whether  she \nbelieved she needed medical treatment on March 28.  \nQ Do you believe you were in need of medical treatment \nat that time? \n \nA Yes and no. I’m a stubborn person so – and I was – it \nwas, I believe, 11:00 o’clock in the morning, a half an hour \n\nMoore – H404087 \n \n-6- \nafter I started my shift. And I didn’t ask for medical treatment, \nI wasn’t advised. \n \nAt  her  deposition,  claimant  indicated  that  she  did  not  feel  that  she  needed  medical \ntreatment on March 28. \nQ I asked you in deposition, this is on page 30, “Did you \nthink you needed treatment that day?” Your response was, \n“No.” Is that correct? \n \nA Correct. \n \n Rouse testified at the hearing that when claimant reported the incident to him he \nasked  her  if  she  wanted  to  see  Rachael  Boles  in  human  resources  who  handles \nrespondent’s workers’ compensation claims. He stated that claimant replied, “Not right \nnow.” Rouse testified that he informed claimant to let him know if anything changed. He \nfurther testified that after being off work for her normal three days, claimant returned to \nwork for respondent and performed her normal job duties until June 5, 2024. Although \nclaimant testified that after March 28 she mentioned continuing back pain to Rouse, he \ntestified  that  he  did  not  recall  claimant  complaining  of  any  continuing  back  pain  and  if \nclaimant  had  done  so  he  would  have  asked  her  if  she  wanted  to  see  Boles  or  get \nmedical treatment.  \n Claimant  has  acknowledged  that  after  March  28  she  continued  to  perform  her \nregular  job  duties  at  her  regular  hours  as  a  paramedic.  She  also  testified  that  after \nMarch  28  there  were  many  times  that  she  felt  something  needed  to  be  done  for  her \nback  because  just  going  up  the  steps  into  the  ambulance  was painful. She  stated that \nshe was using ice, heat, and her husband’s TENS unit, but they did not help. Despite \n\nMoore – H404087 \n \n-7- \nthese  apparent  complaints,  claimant  admitted  that  she  did  not  tell  Rouse  that  she \nneeded medical treatment.  \nQ And  you  told  me  you  didn’t  tell  him  you  needed \ntreatment, just that your back hurts. Is that right? \n \nA Yes. \n \n Claimant testified at her deposition that after the incident on March 28 she did not \nsee a doctor until she went to Urgent Care on June 5, 2024. This is incorrect. On April \n25,  2024,  claimant  sought  medical  treatment  from  her  primary  care  physician,  Dr. \nRobert Foy, for “flu-feeling” symptoms. Other than flu-like  findings,  the  report  indicates \nthat  a  general  examination  showed  claimant  to  be  in  no  acute  distress.  Claimant \nreturned to Dr. Foy for a follow-up visit on May 6, 2024, at which time her diagnosis was \nacute bronchitis and asthma aggravation. Again, the general physical exam reflects that \nclaimant was in no acute distress. Significantly, even though it is claimant’s testimony \nthat there were many times that even going up the steps into the ambulance was painful \nand that she was using heat, ice, and her husband’s TENS unit, there is no mention of \nany back complaints in either of Dr. Foy’s medical reports. \n I also note that claimant testified that she had no lower back problems or sciatica \nbefore  the  incident  on  March  28.  However,  on  June  13,  2024,  claimant  was  seen  for \ncomplaints  of  back  pain  by  Bailey Savage,  APRN  for  Dr.  Foy.  Her  report  of  that  date \nstates:  \nHer  lumbar  spine  xray  was  unchanged  from  2023 and \nshowed mild degenerative disc disease on L5/S1. (Emphasis \nadded.) \n \n\nMoore – H404087 \n \n-8- \n Obviously,  there  was  something  about  claimant’s  low  back  in  2023  that  was \nsignificant enough for Dr. Foy to order an x-ray.  \n Perhaps the most important evidence in this claim involves the events of June 5, \n2024. On that date during some downtime, claimant and a coworker engaged in some \nexercises while “goofing around”. Testifying at the hearing was Leah Decker, who works \nas a dispatcher for respondent. She testified: \nThey  were  sitting  in  their  chairs  twirling  their  arms  like  this, \npicking  their  legs  up  and  spinning  around  their  knees  and \ntheir ankles. They did a couple of toe touches like this. They \nwere laughing, they were watching a office exercise video on \nher phone and that’s what they were mimicking. \n \n*** \nQ Do  you – if  you  know,  do  you  know  why  they  were \ndoing this? \n \nA Because  they  thought  it  was  funny  and  they  were \ntrying out new ways to get exercise in the office area instead \nof just sitting there, new ways to exercise. \n \nDecker  went  on  to  indicate  that  based  on  her  observation  of  claimant,  she  had  no \nreason to believe that claimant had injured herself that day. Amanda Perse, dispatcher \nand  part-time EMT,  also  testified at the  hearing.  She  participated  in  the exercises  with \nclaimant and testified as follows: \nWe were sitting in a chair and just doing like chair exercises, \nour arms, our legs, just, I don’t know.  \n \n*** \nQ Why? \n \nA Just goofing around. \n \n Perse  also  testified  that  she  had  no  reason  to  believe  that  claimant  had  injured \nherself while doing the exercises.  \n\nMoore – H404087 \n \n-9- \n Jackie Cooper, a nurse case manager, testified at the hearing that she scheduled \nclaimant’s  appointment  with  Josh  Trinkle,  PA,  on  July  2,  2024,  and  attended  the \nexamination.  Cooper  testified  that  claimant  indicated  that  she  was  performing  some \nexercises at work; twisted; and felt fire and a feeling like she was paralyzed. \n The medical report from Savage date June 13, 2024, states: \nPatient  reports  she  initially  injured  her  back  a  couple  of \nmonths  ago  lifting  a  patient.  Heat  relieved  the  pain  at  that \ntime.  The  pain  has  come  and  gone  since  then  for  short \nperiods  of  time. However,  she  reports  the  lower  back  pain \nwith right sided sciatica came back last week when she went \nto  urgent  care  and  has  been  constant  since  that  time. \n(Emphasis added.) \n \n Trinkle, in his report of July 2, 2024, stated: \nStates that  the back  pain  was  pretty  significant  at that  point \nand time on 3/28/2024. In turn she states that she did report \nthe  injury  in  March  following  the  incident.  However,  no \ntreatment  was  initiated.  In  turn she  states  that  she  had  a \nrecurrent  injury  where  she  was  twisting  in  the  process  of \ndoing  a duty at  work and  felt  an  excruciating  amount  of  low \nback pain with right lower extremity pain that shot down the \nback of the leg. States this was in the beginning on June to \nwhere  she  went  and  had  an  x-ray  of  her  lumbar  spine \nunderwent. (Emphasis added.) \n \n This  twisting  incident  was  the  exercises  on  June  5.  Claimant  has  not  testified \nabout  any  other  specific  twisting  incident  occurring  at  work  while  performing  any  job \nduties that resulted in recurrent pain. \n Finally, Dr. Evans in his report of July 15, 2024, stated: \nSymptoms  never  resolved  but then worsened  again at  work \nin June. This occurred while twisting in her office chair doing \nfiling work.  \n \n\nMoore – H404087 \n \n-10- \n Again,  claimant  has  not  testified  as  to  an  injury  while  twisting  in  an  office  chair \nwhile  filing  in  June.  She  was  twisting  in  an  office  chair  in  June  while  performing \nexercises with a coworker. \n With  regard  to  June 5,  claimant  testified  at  her  deposition that  she did not  even \nthink she was at work on June 5, but subsequently admitted that she had no reason to \ndispute her timecard showing that she was there for a period of time. She also testified \nthat she did not recall telling anyone that the exercises caused an increase in her pain \nor  that  she  said  anything  to  Dr.  Evans  or  his  assistant  about  the  exercises.  Claimant \nacknowledges  that  the  exercises  did  not  have  anything  to  do  with  her  job,  but  denies \nthat she injured herself in the performance of those exercises. \n Significantly,  it  was  the  day  claimant  engaged  in  these  exercises  that  she \nrequested  medical  treatment.  Rouse  testified  that  claimant  indicated  that  she  was \nhaving  severe  back  pain;  was  having  trouble  walking;  and  did  not  feel  that  she  could \nclimb  into  the  ambulance.  She  indicated  that  she  wanted  to  go  to Urgent Care  and \nRouse  took  her  there  for  treatment.  Rouse  also  testified  that  he  asked  claimant  if  her \nneed for medical treatment was related to a work related injury.  \nI  asked  her  if  it  was  a  work-related  injury  because  if  it  was, \nwe had to go through HR. And she said she didn’t feel like it \nwas. \n \n It should be noted that while Dr. McAlister made reference to the June 5, 2024, \nvisit in his report, the actual medical report of June 5, 2024, is not in evidence. \n In  summary,  I  do  not  find  that  claimant  has  met  her  burden  of  proving  by  a \npreponderance  of  the  evidence  that  suffered  a  compensable  injury  to  her  low  back  on \nMarch 28, 2024. While claimant did report an injury to her supervisor and coworkers on \n\nMoore – H404087 \n \n-11- \nthat day, I do not find that sufficient to prove a compensable injury given the remaining \nevidence.  Claimant  testified  that  after  this  incident  she  continued  to  have  pain  while \ngetting in the ambulance and treated her pain with heat, ice, and a TENS unit borrowed \nfrom  her  husband.  Despite  these  complaints,  claimant  did  not  request  any  medical \ntreatment,  and  she  continued  to  perform  her  regular  job  duties  as  a  paramedic. \nClaimant  even  sought  medical  treatment  from  her  primary  care  physician  for  flu \nsymptoms  on April  25,  2024,  and  May  6,  2024,  but did  not  complain  of  low  back pain. \nTo  the  contrary,  Dr.  Foy  noted  that  claimant  was  in  no  acute  distress  during  both  of \nthose visits. \n Claimant did not seek any medical treatment for complaints of low back pain until \nJune 5, 2024, more than two months after March 28. This was the same day she was \nperforming  exercises  with  a  coworker  while  “goofing  around”.  Admittedly,  these \nexercises  were  not  related  to her  job activities  with  respondent.  Although  claimant  has \ntestified  that  she  did  not  injure  herself  while  performing  those  exercises,  the  events  of \nthat day were significant enough for her to seek medical treatment for her back for the \nfirst  time  and she mentioned  additional  complaints  beginning  in  early  June  to  her \nmedical  providers.  Furthermore,  according  to  the  testimony  of  Rouse,  claimant’s \nsupervisor who took her to Urgent Care on June 5, he asked claimant if her complaints \nthat day were work related and claimant that “she didn’t feel like it was.” \n Accordingly, based upon the evidence presented, I find that claimant has failed to \nmeet  her  burden  of  proving  by  a  preponderance  of  the  evidence  that  she  suffered  a \ncompensable injury to her low back on March 28, 2024. \n \n\nMoore – H404087 \n \n-12- \nORDER \n Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  she \nsuffered a compensable injury to her low back on March 28, 2024. Therefore, her claim \nfor compensation benefits is hereby denied and dismissed. \n Respondents are liable for payment of the court reporter’s charges for \npreparation of the hearing transcript in the amount of $634.70. \n IT IS SO ORDERED. \n \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":19988,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404087 REBEKAH MOORE, Employee CLAIMANT NORTH ARKANSAS REGIONAL MEDICAL CENTER, Employer RESPONDENT RISK MANAGEMENT RESOURCES, Carrier RESPONDENT OPINION FILED APRIL 23, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Harrison, Boone Count...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T22:41:55.333Z"},{"id":"full_commission-H306460-2025-04-22","awccNumber":"H306460","decisionDate":"2025-04-22","decisionYear":2025,"opinionType":"full_commission","claimantName":"Alfred Grasso","employerName":"City Of Fort Smith","title":"GRASSO VS. CITY OF FORT SMITH AWCC# H306460 April 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Grasso_Alfred_H306460_20250422.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Grasso_Alfred_H306460_20250422.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H306460 \n \nALFRED GRASSO, EMPLOYEE  CLAIMANT \n \nCITY OF FORT SMITH, EMPLOYER RESPONDENT \n \nCENTRAL ADJUSTMENT COMPANY,  \nINSURANCE CARRIER/TPA RESPONDENT \n \n \nOPINION FILED APRIL 22, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE DOUGLAS M. CARSON, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed November 18, 2024.  In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The   stipulations   agreed   to   by   the   parties   at   a   pre-hearing \nconference conducted on September 18, 2024 and contained in a \npre-hearing order filed that same date are hereby accepted as fact.  \n \n2. Respondent  has  controverted  this  claim;  therefore, claimant’s \nattorney is entitled to an attorney fee on the 2% impairment rating. \n \n \n\nGRASSO - H306460  2\n  \n \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed.  Specifically, we find from a preponderance \nof the evidence that the findings made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(a)(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n \n \n\nGRASSO - H306460  3\n  \n \n \n  IT IS SO ORDERED. \n \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \n I must respectfully dissent from the majority’s opinion finding the \nclaimant’s attorney is entitled to a fee on claimant’s 2% impairment rating. \n The claimant suffered a work-related injury to his left shoulder on \nSeptember 5, 2023.  While the respondents initially controverted the claim, \nthey later amended their response and accepted compensability prior to a \nhearing being scheduled.  The respondents ultimately paid for the \nclaimant’s medical treatment; temporary total disability benefits, as well as \nan attorney’s fee on those benefits and, a two percent (2%) impairment \nrating. The respondents did not pay an attorney’s fee on the claimant’s \nimpairment rating.  \nAfter a hearing on October 28, 2024, an ALJ determined that the \nclaimant is entitled to a fee on claimant’s impairment rating, and the \nrespondents appeal. \n\nGRASSO - H306460  4\n  \n \n \nIn workers’ compensation claims, “[a]ttorney's fees can only be \nawarded when the statutes specifically authorize them.”  Aluminum Co. of \nAmerica v. Neal, 4 Ark. App. 11, 626 S.W.2d 620 (1982).  Pursuant to our  \nRules, an attorney’s fee “shall be allowed only on the amount of \ncompensation for indemnity benefits controverted and awarded.”  Ark. Code \nAnn. § 11-9-715(a)(2)(B)(ii) (emphasis added).  \nAn “award” means a decision of an ALJ or the Commission.  \nClemons v. Bearden Lumber Co., 240 Ark. 571, 401 S.W.2d 16 (1966). \nFurther, our Rules explicitly allow respondents to amend their position of \nacceptance or controversion of a claim.  AWCC Rule 099.39.  \nIn the present case, the ALJ reasoned that the claimant is entitled to \nan attorney’s fee for PPD benefits because he believed it was necessary for \nthe claimant to hire an attorney to obtain benefits.  \nAlthough medical treatment and temporary total disability benefits \nwere briefly controverted, the claim was accepted as compensable, and the \nrespondents paid for the medical treatment as well as temporary total \ndisability benefits.  In addition, the respondents paid an attorney’s fee on \nthe disputed temporary total disability benefits.    \nThere was no award of permanent partial disability benefits, and the \nrespondents amended their position and accepted the 2% PPD rating prior \nto the issue of PPD benefits even arising.  The respondents accepted \n\nGRASSO - H306460  5\n  \n \n \ncompensability before PPD benefits could have been awarded or were \nconsidered in any prehearing paperwork, and were not the subject of any \nhearing, nor was the respondents position amended due to any action by \nthe claimant’s attorney. \nFrom the plain language of our Rules, it is clear that the ALJ erred in \nawarding the claimant’s attorney a fee on an uncontroverted permanent \nimpairment rating.  Accordingly, for the reasons set forth above, I must \ndissent. \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":5727,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H306460 ALFRED GRASSO, EMPLOYEE CLAIMANT CITY OF FORT SMITH, EMPLOYER RESPONDENT CENTRAL ADJUSTMENT COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 22, 2025 Upon review before the FULL COMMISSION in Little Rock, ...","outcome":"granted","outcomeKeywords":["granted:6"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:29:44.417Z"},{"id":"full_commission-H104834-2025-04-22","awccNumber":"H104834","decisionDate":"2025-04-22","decisionYear":2025,"opinionType":"full_commission","claimantName":"Kelli Hellums","employerName":"Area Agency On Aging Western Arkansas","title":"HELLUMS VS. AREA AGENCY ON AGING WESTERN ARKANSAS AWCC# H104834 April 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Hellums_Kelli_H104834_20250422.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Hellums_Kelli_H104834_20250422.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H104834 \n \nKELLI S. HELLUMS, \nEMPLOYEE \n \nCLAIMANT \nAREA AGENCY ON AGING WESTERN \nARKANSAS, EMPLOYER \n \nRESPONDENT \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 22, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MATTHEW J. KETCHAM, \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nNovember 21, 2024.  The administrative law judge found that the claimant \nproved she was entitled to additional medical treatment.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant proved \nadditional medical treatment provided by Dr. Roman was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Supp. 2024).   \nI. HISTORY \n Kelli Hellums, now age 63, testified that she was employed with the \nrespondents, Area Agency on Aging, on August 6, 2020.  The parties \n\nHELLUMS - H104834  2\n  \n \n \nstipulated that the employment relationship existed on August 6, 2020, on \nwhich date the claimant “sustained a compensable injury to her lower back.”  \nThe claimant testified on direct examination: \n  Q.  And what was your job with Area Agency? \n  A.  I was an in-home aide.... \n  Q.  Were you assigned to one particular patient? \n  A.  Yes, sir.... \n  Q.  What happened [on August 6, 2020]? \nA.  We got her a shower and she sits in her chair.  And I \nusually like kneel down, you know, to put her shoes and socks \nand stuff on.  And when I kneeled to put her shoe on, it just \nfelt like something on my left side just completely separated \nand I went straight down and was just stuck in a fetal \nposition.... \n \n The claimant received emergency treatment on August 6, 2020: \nPatient presents with complaint of low back pain and transient \nnumbness to her right leg.  She reports that she was bending \nover putting on her patient shoes when she felt something pop \nin her back and she felt like something was separating....She \ninitially had some numbness in her right leg but it has since \nresolved. \n \n A CT of the claimant’s lumbar spine was taken on August 6, 2020 \nwith the impression, “1.  No acute fracture or traumatic malalignment.  \nModerate degenerative change as described above.”  The claimant was \nprescribed medication and it was noted, “She will follow up with \nNeurosurgery next week.” \n The record indicates that the claimant began treating at Mercy Clinic \nOccupational Medicine-Fort Smith on August 10, 2020.  Dr. Ian T. Cheyne \nreported at that time:   \n\nHELLUMS - H104834  3\n  \n \n \nKelli’s primary problem is pain located in the lower thoracic \nregion.  She describes it as pressure, burning.  The problem \nbegan on 8/6/2020.  Kelli says that it seems to be constant.  \nShe has noticed that it is made worse by moving it.  Her pain \nlevel is 7.  Pain is in the left low back....She went to the ED on \n8/6.  CT showed degenerative changes.  She is currently on \nsteroid pack and muscle relaxer.... \nDue to the significant pain and need for walker to help with \nambulation, will set up for an MRI of the lumbar spine.  \nComplete steroid pack and switch to ibuprofen/tylenol \nafterwards.  Hot showers twice daily.   \n \n Dr. Cheyne diagnosed “1.  Strain of muscle, fascia and tendon of \nlower back[.]”       \n An MRI of the claimant’s lumbar spine was taken on August 19, 2020 \nwith the following impression: \nFacet hypertrophy L5-S1 with far right-sided disc protrusion \nbut no significant stenosis.   \nPosterior element hypertrophy L4-5 with spondylosis and \nposterior lateral small protrusions with mild canal and lateral \nrecess stenosis. \nPosterior element hypertrophy L3-4 with disc bulge versus \nprotrusion and mild canal and lateral recess narrowing. \nAnd central disc protrusion at L2-3 with mild left lateral recess \nnarrowing.  Other findings as noted.   \n \n The claimant followed up with Dr. Cheyne on August 24, 2020:  “Kelli \nwas assisting a client with putting on their shoes when she felt a pain in her \nlower back....Kelli’s primary problem is pain located in the lower thoracic \nregion.”  Dr. Cheyne diagnosed “1.  Strain of muscle, fascia and tendon of \nlower back[.]...Will refer to PT.” \n\nHELLUMS - H104834  4\n  \n \n \n The claimant testified that she underwent physical therapy for six \nweeks.  The claimant testified that physical therapy “didn’t help anything.  It \nmade it worse.”     \n Dr. Eugene Becker performed a Lumbar Epidural Steroid Injection on \nOctober 20, 2020.  The claimant testified that she benefitted from the \ninjection provided by Dr. Becker.     \n The claimant followed up with Dr. Cheyne on November 5, 2020:  \n“Kelli’s primary problem is pain located in the lower thoracic region....Kelli \nsays that it seems to be variable – depending on the activity level.  She \nfeels it is almost entirely resolved.  Her pain level is 3.  Additional History:  \npatient is s/p LESI x 1 and has had significant improvement in pain.  She \nstill notices some pain with certain movements but overall much \nimproved....Will place on regular duty but recommend she follow up with \npain management for another injection.”   \n Dr. Becker performed Lumbar Epidural Steroid Injections on \nNovember 17, 2020 and December 15, 2020.  The claimant testified that \nshe benefitted from Dr. Becker’s treatment.     \n The record indicates that the claimant was seen at OrthoArkansas \non February 8, 2021.  Payton Ransom, PA reported at that time:   \nMs. Hellums is a 59-year-old female presenting to clinic for \nWorker’s Comp. evaluation.  Her date of injury was August 6, \n2020.  She was bending down to put a shoe on an elderly \npatient that she takes care of when she noticed a sharp \n\nHELLUMS - H104834  5\n  \n \n \nstabbing/pulling sensation in her left lumbar spine.  This pain \ninitially was severe.  It localizes to the left lower lumbar \nspine....States that her daily pain scale is a 3-4 out of 10.   \nShe has undergone 3 epidural steroid injections by Dr. \nBecker.  She reports minimal relief with these.  Additionally \nshe has undergone physical therapy which exacerbated her \nsymptoms.  She also tried trials of muscle relaxers, anti-\ninflammatories, and steroid Dosepaks with minimal relief.  She \nis currently on light duty at work, working at a desk.... \nAP and lateral x-ray of the lumbar spine ordered, obtained, \nand interpreted today reveals Mild grade 1 anterolisthesis of \nL3-4.  Mild to moderate degenerative disc disease L3-4, L4-5, \nL5-S1.  Slight scoliotic curvature to the right of the lumbar \nspine.   \nCT lumbar spine reviewed from August 6, 2020 reveals facet \nhypertrophy at L5-S1, L4-5, and L3-4.  Mild grade 1 \nanterolisthesis of L3-4.   \nMRI lumbar spine reviewed from 8/19/2020 on disc today \nreveals Diffuse central posterior disc bulge at L2-3 with mild \ncentral stenosis.  Diffuse posterior disc bulge at L3-4 with mild \nto moderate central canal stenosis With facet hypertrophy.  \nDisc bulge and facet hypertrophy at L3-4 creating moderate \nbilateral subarticular recess stenosis, worse on the right.  Mild \nleft foraminal stenosis L5-S1 with bilateral facet \nhypertrophy.... \nI reviewed x-ray, MRI and CT with patient and Case manager \nin clinic today.  We discussed the multiple levels of \ndegeneration in the lumbar spine, particularly at L3-4.  Patient \ndoes have chronic, degenerative processes in the lumbar \nspine.  Additionally, patient’s pain is primarily axial, worse on \nthe left.  She does have multiple levels of facet hypertrophy.  \nShe has failed other conservative treatment such as physical \ntherapy and epidural steroid injections as well as muscle \nrelaxers.  I recommend a trial of facet injections/rhizotomies in \nhopes of alleviating symptoms.  At this point I do not \nrecommend surgical intervention.   \nThe patient’s MRI does not show fracture.  There are signs of \nspondylolisthesis At L3-4 which is pre-existing.  There are no \nobjective findings of acute injury.  However, the patient’s \nsymptoms began on and after the work injury.  The patient \nhas no history of pain in the low back or down the leg prior to \nthe work injury.  Therefore it is within a certain degree of \n\nHELLUMS - H104834  6\n  \n \n \nmedical certainty that at least 51% of the patient’s current \nsymptoms are directly related to their work injury.  Injury was \n[an] acute exacerbation of a chronic, degenerative process.   \nI am placing the patient on work restrictions of no bending, \ntwisting or lifting over 20 pounds.   \n \n Payton Ransom assessed “Degenerative disc disease, lumbar spine, \nwith facet hypertrophy, with axial back pain, worse on the left.  Mild grade 1 \ndegenerative spondylolisthesis, L3-4.  Muscle strain, lumbar spine.” \n Dr. Carlos Roman performed a procedure on February 12, 2021:  \n“Lumbar facet injections done, L3-L4, L4-L5, L5-S1 with medial branch \nblock.”  The pre-and post-operative diagnosis was “1.  Lumbar spondylosis.  \n2.  Severe low back pain.  3.  Lumbar degenerative disc disease.  4.  \nLumbar listhesis, L3-L4.”  Dr. Roman advised the claimant, “Followup in two \nto three weeks for medial branch blocks for possible rhizotomy if the pain in \nher back persists.” \n Dr. Roman performed a procedure on February 26, 2021:  “Left-\nsided medial branch blocks at lumbar facets at L3-L4, L4-L5, and L5-\nS1....Follow up in two weeks for rhizotomy.”   \n Dr. Roman performed a procedure on March 19, 2021:  “Rhizotomy \nof lumbar facet joints left side at L3-L4, L4-L5, and L5-S1.”   \n The claimant testified that she did not benefit from treatment \nprovided by Dr. Roman.   \n Payton Ransom noted on April 21, 2021: \n\nHELLUMS - H104834  7\n  \n \n \nMs. Hellums is a 59-year-old female presenting to clinic for \nWorker’s Comp. evaluation....Her date of injury was August 6, \n2020.  She was bending down to put a shoe on an elderly \npatient that she takes care of when she noticed a sharp \nstabbing/pulling sensation in her left lumbar spine.... \nShe has undergone 3 epidural steroid injections by Dr. \nBecker.  She reports minimal relief with these.  Additionally \nshe has undergone physical therapy which exacerbated her \nsymptoms.  She also tried trials of muscle relaxers, anti-\ninflammatories, and steroid Dosepaks with minimal relief.  She \nis currently on light duty, working at a desk. \nShe is here today for follow-up after L3 S1 rhizotomies by Dr. \nRoman.  She states that her pain was good with both the facet \nblocks but she has had some increased pain after the actual \nrhizotomy.  Still complaining of the same pain.... \nThe patient states they are unable to return back to work due \nto their pain.  My recommendation is for a functional capacity \nexam.  If the patient has a valid functional capacity exam, then \nthey may return back to work per the defined restrictions of \nthat the valid functional capacity exam.  If the functional \ncapacity exam is invalid, the patient may return back to work \nfull duty without restrictions.... \nThere is no need for the patient to follow up after this \nfunctional capacity exam.... \nThe patient is at maximum medical improvement.   \nThe patient’s work restrictions are to return back to work full \nduty without restrictions.   \nThe patient’s impairment rating will be a 0% as taken out of \npage 113 of the “Guides to the Evaluation of Permanent \nImpairment, Fourth Edition.”  This is for a grade 1 \ndegenerative spondylolisthesis, not operated on.   \nI am releasing the patient from my medical care. \nI will see the patient back only as needed.   \n \n Payton Ransom’s assessment on April 21, 2021 was “Mild grade 1 \ndegenerative spondylolisthesis, L3-4, with mild central stenosis and facet \nhypertrophy, with axial back pain, worse on the left.  Muscle strain, lumbar \nspine.  Degenerative disc disease, lumbar spine.”    \n\nHELLUMS - H104834  8\n  \n \n \n The claimant participated in a Functional Capacity Evaluation on \nMay 10, 2021:  “The results of this evaluation indicate that a reliable effort \nwas put forth, with 50 of 50 consistency measures within expected \nlimits....Ms. Hellums completed functional testing on this date with reliable \nresults.  Overall, Ms. Hellums demonstrated the ability to perform work in \nthe LIGHT classification of work[.]”          \n The claimant testified that the respondents terminated her \nemployment following the Functional Capacity Evaluation.   \n A pre-hearing order was filed on August 22, 2024.  According to the \ntext of the pre-hearing order, the claimant contended, “She received a \ncompensable injury to her low back on August 6, 2020 when she was \nhelping a patient get dressed and felt a sharp shooting pain in her low back.  \nThe claimant followed up with Dr. Ian Cheyne at Mercy Clinic Occupational \nMedicine for continued low back pain.  The claimant was referred for pain \nmanagement and lumbar injections.  On August 19, 2020 the claimant \nreceived an MRI of her lumbar spine and referred for additional pain \nmanagement.  The claimant was treated and evaluated at Ortho Arkansas \nfor her continued low back pain.”   \n The respondents contended, “All appropriate benefits were paid with \nregard to claimant’s injury sustained on August 6, 2020.  She was found to \nbe at maximum medical improvement with a 0% rating assigned on April \n\nHELLUMS - H104834  9\n  \n \n \n21, 2021.  The medical records do not support entitlement to indemnity \nbenefits, and additional medical treatment is not reasonable and \nnecessary.”   \n The parties agreed to litigate the following issue:  “1.  Whether \nclaimant is entitled to additional medical benefits.  All other issues are \nreserved by the parties.”   \n A hearing was held on October 14, 2024.  The claimant testified that \nshe had received injections from Dr. Roman the previous Friday.  The \nclaimant testified that she felt “better than I have in two years.”     \n An administrative law judge filed an opinion on November 21, 2024.  \nThe administrative law judge found, “2.  Claimant has met her burden of \nproving that she is entitled to additional medical treatment for her \ncompensable back injury of August 20, 2020.”  The respondents appeal to \nthe Full Commission.   \nII.  ADJUDICATION \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Supp. \n2024).  The employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \n\nHELLUMS - H104834  10\n  \n \n \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 70 (1984).  \n An administrative law judge found in the present matter, “2.  \nClaimant has met her burden of proving that she is entitled to additional \nmedical treatment for her compensable back injury of August 20, 2020.”  \nThe Full Commission finds that the claimant proved additional treatment \nwith Dr. Roman was reasonably necessary in connection with her \ncompensable injury. \nThe parties stipulated that the claimant sustained a compensable \ninjury on August 6, 2020.  The claimant testified that she felt a “separation” \nin her back while bending over to assist a home health patient.  Dr. Cheyne \nsubsequently diagnosed a “strain of muscle” in the claimant’s lower back.  A \nCT and MRI showed degenerative abnormalities in the claimant’s lumbar \nspine, but no physician of record has recommended surgical treatment.  \nThe claimant did not benefit from physical therapy after lumbar epidural \nsteroid injections performed by Dr. Becker.   \nPayton Ransom, PA examined the claimant at OrthoArkansas on \nFebruary 8, 2021 and assessed the following:  “Degenerative disc disease, \n\nHELLUMS - H104834  11\n  \n \n \nlumbar spine, with facet hypertrophy, with axial back pain, worse on the left.  \nMild grade 1 degenerative spondylolisthesis, L3-4.  Muscle strain, lumbar \nspine.”  Dr. Roman initiated a series of branch blocks and eventually a \nrhizotomy, but the claimant testified that she initially received no \nimprovement following Dr. Roman’s treatment.     \n Payton Ransom opined on April 21, 2021 that the claimant had \nreached Maximum Medical Improvement.  Payton Ransom noted, “I am \nreleasing the patient from my medical care.  I will see the patient back only \nas needed.”  The claimant put forth a valid effort during a Functional \nCapacity Evaluation performed on May 21, 2021.   \nThe probative evidence before the Full Commission demonstrates \nthat the claimant reached Maximum Medical Improvement no later than \nApril 21, 2021, the date Maximum Medical Improvement was assessed by \nPayton Ransom.  We find that Payton Ransom’s assessment of Maximum \nMedical Improvement was corroborated by the record and was entitled to \nsignificant evidentiary weight.  See Minnesota Mining & Mfg. v. Baker, 337 \nArk. 94, 989 S.W.2d 151 (1999).  However, it is well-settled that a claimant \nmay be entitled to ongoing medical treatment after the healing period has \nended, if the medical treatment is geared toward management of the \nclaimant’s injury.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004).  As we have discussed, the claimant testified that she \n\nHELLUMS - H104834  12\n  \n \n \nreceived an injection from Dr. Roman on or about October 11, 2024.  The \nclaimant testified that afterward she felt “better than I have in two years.”  \nThe Full Commission finds that the claimant proved that additional \nconservative treatment provided by Dr. Roman was reasonably necessary \nin connection with the compensable injury sustained by the claimant on \nAugust 6, 2020. \nAfter a de novo review of the entire record currently before us, the \nFull Commission finds that the claimant proved she was entitled to \nadditional medical treatment as recommended by Dr. Roman.  The claimant \nproved that said treatment was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Supp. 2024).  For prevailing on appeal to the \nFull Commission, the claimant’s attorney is entitled to a fee of five hundred \ndollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Supp. 2024). \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \n \n \n \n \n\nHELLUMS - H104834  13\n  \n \n \nDISSENTING OPINION \n \n I must respectfully dissent from the majority’s opinion finding the \nclaimant met her burden of proving she is entitled to additional medical \ntreatment. \nThe claimant sustained an injury to her lower back while working for \nthe respondent employer on August 6, 2020.  After eight months of \nconservative treatment, the claimant was released at maximum medical \nimprovement with no permanent impairment.  \nOver four years later, after the accident in question, the claimant \nsought additional treatment in the form of injections recommended by Dr. \nCarlos Roman.  An administrative law judge ruled the claimant met her \nburden of proving she is entitled to additional medical treatment, and the \nrespondents appeal. \nArk. Code Ann. § 11-9-508(a) requires an employer to provide an \nemployee with medical and surgical treatment \"as may be reasonably \nnecessary in connection with the injury received by the employee.\"  The \nclaimant has the burden of proving by a preponderance of the evidence the \nadditional treatment is reasonable and necessary.  Nichols v. Omaha Sch. \nDist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \n\nHELLUMS - H104834  14\n  \n \n \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013).  \nIn workers’ compensation cases, a decision often rests solely on the \ncredibility of the claimant as a witness.  A determination of the weight and \ncredibility of a witness' testimony is exclusively within the province of the \nCommission.  Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 \n(1989).  \nThe Commission has the right to believe or disbelieve the testimony \nof any witness, and the Commission's decision is entitled to the weight we \ngive a jury verdict.  Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 \nS.W.2d 617 (1988). \nAfter her injury on August 6, 2020, Dr. Ian Cheyne prescribed \nphysical therapy and muscle relaxers.  The claimant was ultimately referred \nto Dr. Eugene Becker who performed three lumbar epidural steroid \ninjections. The claimant reported on November 5, 2020, that her pain had \nalmost entirely resolved.  \nWhen the claimant reported ongoing pain on January 20, 2021, Dr. \nCheyne referred the claimant for facet injections, which were performed by \n\nHELLUMS - H104834  15\n  \n \n \nDr. Carlos Roman on February 12, 2021.  Ultimately, Dr. Roman performed \na rhizotomy in February of 2021, which the claimant testified did not work at \nall.   \nThe claimant was released at maximum medical improvement (MMI) \nwith no impairment rating on April 21, 2021.  At that time, PA Payton \nRansom opined: \nPatient does have chronic, degenerative \nprocesses in the lumbar spine.  Additionally, \npatient’s pain is primarily axial, worse on the \nleft.  She does have multiple levels of facet \nhypertrophy. She has failed all other \nconservative treatment such as physical \ntherapy and epidural steroid injections.  She \nrecently failed rhizotomies. \n \n The claimant was released at maximum medical improvement with \nno impairment rating and waited three and a half years until after a motion \nto dismiss was filed by the respondents to seek additional medical \ntreatment.  \nThe additional treatment recommended by Dr. Roman has failed to \naddress the claimant’s ongoing complaints during her initial treatment, and \nthere is no evidence that it would be any different today, nor has the \nclaimant diligently sought this treatment prior to a motion to dismiss being \nfiled. \n\nHELLUMS - H104834  16\n  \n \n \n The claimant has wholly failed to meet her burden of proving that the \ntreatment she seeks is necessary, reasonable, or causally related to her \nwork-related injury. \nAccordingly, for the reasons set forth above, I must dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":23137,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H104834 KELLI S. HELLUMS, EMPLOYEE CLAIMANT AREA AGENCY ON AGING WESTERN ARKANSAS, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 22, 2025","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1","denied:1"],"injuryKeywords":["back","lumbar","fracture","thoracic","strain"],"fetchedAt":"2026-05-19T22:29:44.436Z"},{"id":"alj-H404754-2025-04-18","awccNumber":"H404754","decisionDate":"2025-04-18","decisionYear":2025,"opinionType":"alj","claimantName":"Amanda Engleman","employerName":"Washington Regional Medical Center","title":"ENGLEMAN VS. WASHINGTON REGIONAL MEDICAL CENTER AWCC# H404754 April 18, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ENGLEMAN_AMANDA_H404754_20250418.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ENGLEMAN_AMANDA_H404754_20250418.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H404754 \n \nAMANDA ENGLEMAN, EMPLOYEE CLAIMANT \n \nWASHINGTON REGIONAL MEDICAL CENTER, EMPLOYER RESPONDENT \n \nRISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT \n \n \n OPINION FILED APRIL 18, 2025 \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE JOSEPH  C.  SELF in Fort  Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents are represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January 21, 2025, the above captioned claim came on for a hearing in Fort Smith, Arkansas. \nA pre-hearing conference was conducted on September 27, 2024, and a pre-hearing order was filed \non that same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.  The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.  The employee/employer/carrier relationship existed on June 2, 2023. \n3   The respondents have controverted the claim in its entirety. \n4.  The compensation rates are the maximum.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n\nEngleman-H404754 \n2 \n \n \n1. Whether claimant sustained a compensable injury on June 2, 2023, specifically bilateral  \nshoulder injuries. \n 2. If  compensable,  whether  claimant  is  entitled  to  temporary  total  disability  benefits,  and      \nmedical benefits.  \n 3.  Attorney fees. \nAll other issues are reserved by the parties. \nThe claimant contends that “She is entitled to temporary total disability benefits from June 13, \n2024, to  a  date  yet  to  be  determined  and  reasonably  necessary  medical  treatment. The  claimant \ncontends that her attorney is entitled to an appropriate attorney’s fee.” \nThe respondents contend that “Claimant’s bilateral shoulder injuries were initially accepted as \na  medical  only  claim,  but  the  claim  has  now  been  denied  in  its  entirety  due  to  a  lack  of  objective \nfindings. Additionally,  respondents  contend  that  claimant  has  preexisting  issues  with  her  shoulders \nand possibly underwent new injuries after June 2, 2023.”   \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nSeptember 27, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as \nfact. \n 2.    Claimant has met her burden of proving that she suffered a compensable bilateral shoulder \n\nEngleman-H404754 \n3 \n \n \ninjury on June 2, 2023, and is entitled to reasonable and necessary medical treatment for that injury as \nrecommended by Dr. Greg Jones. \n 3.    Claimant has met her burden of proving she is entitled to temporary total disability from \nJune 13, 2024, to a date to be determined.  \n 4.    Respondents are entitled to an offset for any short-term and long-term payments made \nto  claimant if  the  employer  paid  for  either short-term  disability  insurance,  long-term  disability \ninsurance, or both. \n \n FACTUAL BACKGROUND \n Prior to the hearing, the parties advised they were unable to depose Dr. Greg Jones until the \nday  after  the  scheduled  hearing. They  agreed  that  the  record  could  be  supplemented  with  that \ndeposition. However,  respondents subsequently determined to  forego that  deposition,  and  advised \nthe record could be closed based on the testimony and documents submitted at the hearing.  \n Before the testimony began, the parties announced that there were both short-term and long-\nterm disability policies  under  which  claimant  had  drawn  benefits. The  parties  agreed  that  if  the \nemployer paid for either or both, respondents are entitled to an appropriate offset.  \nHEARING TESTIMONY \n \n Claimant was the only witness to testify on her behalf. She stated that on June 2, 2023, she \ninjured  her  shoulders when  she  kept  a  patient  from  sliding  off  an  operating  room  table. Claimant \nreported that she had popped her left shoulder, and her right shoulder was hurting. She was sent to \nthe Employee Health nurse that same day. She stated that x-rays were done on the shoulders, and she \nwas referred to physical therapy before returning to see a physician’s assistant. The physical therapy \ndid not help claimant alleviate her symptoms and she saw the physician, Dr. Konstantin Berestnev, \non June 9, 2023. Her condition was unchanged after a week; she received a steroid injection, was told \n\nEngleman-H404754 \n4 \n \n \nto  continue  the  physical therapy  and  was  restricted  from  pushing,  pulling,  or  lifting  as  well  as  no \noverhead activity.  \n Claimant testified  she  continued with  physical  therapy  and  had  a  second  injection,  but  her \ncondition was getting worse. She said the doctor released her on the last visit despite her request for \nan MRI or a referral to an orthopedic doctor.  \n Claimant had an injury to her left shoulder for which she was treated on February 17, 2022. \nShe had injured her shoulder at home and when it was still hurting two weeks later, she decided to \nseek medical attention. There was no follow-up visit because claimant said the shoulder healed on its \nown. Claimant stated that she was able to perform her duties as a Covid ICU nurse following her fall \nat home.  \nClaimant took a position in the cardiac unit in a hospital in Columbus, Indiana in July 2022 \nand  had no  problems  with  either  shoulder  while  she  was  working  there. She  began  working  at \nWashington Regional on November 29, 2022; between that date and June 2, 2023, she did not have \nany issues with either shoulder that required her to receive medical treatment. However, after the June \n2, 2023, injury, she  testified her shoulders  never  completely  returned  to  the  condition  they  were  in \nbefore  the  incident  in  the  operating  room. She  did  not  return  to  Conservative  Care  Occupational \nHealth because when that doctor released her from his care, she believed that was all that would be \ndone  for  her. When  he  denied  her  request  for  an  MRI  and  a  referral  to  an  orthopedic  doctor,  she \nknew of no reason to go back to see Dr. Berestnev again.  \n In March 2024, claimant went to see Dr. J. Clayton because her shoulders had not healed. She \ngave Dr. Clayton a history regarding her shoulders which mentioned the previous injury she received \nfrom a fall, and also related a separate incident of hurting her shoulder while moving a dog. As a nurse, \nshe felt Dr. Clayton needed a complete history of any issues she had with her shoulder. She was then \n\nEngleman-H404754 \n5 \n \n \nreferred to Dr. Greg Jones, a shoulder specialist. Dr. Jones eventually performed surgery on claimant’s \nleft  shoulder, and  she reported  that while she  was  helped  by  that  surgery, a  second  surgery was \nscheduled for her left shoulder. Claimant said that surgery was also anticipated for her right shoulder. \nClaimant related that after the June 2, 2023, injury, she had a clicking or popping sound in her left \nshoulder because the bicep tendon had dislocated. Dr. Jones evaluated the right shoulder, and claimant \nbelieves her condition with it is the same as with her left shoulder. \n Because  she believed she  could not receive workers’ compensation benefits after she was \nreleased by Dr. Berestnev, claimant filed for short-term disability benefits and subsequently was placed \non  long-term  disability. She  did  so  because  she  believed  that  she  could not receive  workers’ \ncompensation benefits after she was released from care by Dr. Berestnev. Claimant had surgery on \nher left shoulder on June 13, 2024, and does not believe that she has been physically able to perform \nher job duties since that time. \n On cross-examination, claimant explained what her job duties as an operating room circulator \nwere at Washington Regional. These responsibilities included getting the rooms ready for an upcoming \nsurgery which required equipment to be pushed into the room, changing a bed, and removing patients \nfrom the pre-op area and onto the operating table. She was required to lift patient’s limbs, push heavy \ntables, and position people while they are under anesthesia.  \n Regarding the incident in question, claimant repeated that her left shoulder popped, and that \nher right shoulder also hurt while she was preventing the patient from falling, but she did not realize \nthe right shoulder was hurt until the surgery was over. As of the date of the hearing, claimant had not \nhad treatment on her right shoulder. Claimant explained on the fall around February 2022 occurred \nwhen  she  was  painting  and  fell  from  a  barstool  onto  her  left  elbow. She elaborated  about  what \nhappened when she lifted a fifty-pound dog from the driver’s side of her car into the passenger seat \n\nEngleman-H404754 \n6 \n \n \nin April 2023. \n Claimant recognized that she stated in her report to the Joint Chiropractic Clinic on February \n26, 2024, that her complaints began two years ago. She had identified that January 1, 2021, as a possible \ndate  the  symptoms  started. Claimant  said  she  had  been  a  nurse  for  twenty  years,  pushing,  pulling, \nlifting, and having back pain. The report from Dr. Clayton on April 16, 2024, mentioned the injury to \nher left shoulder from a fall, as well as the incident of repositioning the dog. \n Claimant had this exchange with respondent’s counsel (TR.30) \nQuestion. (By Ms. Wood) And then we have one from Dr. Zimmerman dated \nMay 17, 2024, showing that your left shoulder pain had been present for over \ntwo years and you associate it with falling off a barstool onto your left elbow; \nis that correct? \nAnswer.  (By  claimant) No. I  think  the  left  shoulder  was  from  the  injury  at \nwork. \n \nQ. Did you tell Dr. Zimmerman about the fall at home? \nA. He did know, yes, because it is part of Mercy’s records, and he has access \nto all the records. \n \nQ. So you did tell somebody about that. \nA. Yes. \n \nQ. You just didn’t tell Dr. Zimmerman that? \nA.  I told Dr. Zimmerman that I had been a nurse for a long time, and I was \ninjured at  work. I also  told  him about  the  fall  and  about  the  dog.  I  told \neverybody about everything that ever caused the shoulder pain.  \n \nQ. And you definitely told him about the incident at work? \nA. Yes. \n \nQ. All Right. But we have one from Dr. Jones dated May 29, 2024, showing \nyou told him you were pushing carts or lifting patients and that exacerbated \nyour left shoulder pain, is that correct? \nA. Yes. \n \nQ. You also told him your symptoms began two and a half years ago when \nyou  fell  off  a  ladder  while  painting  and  landed  directly  on  your  elbow. Did \nyou tell him that as well? \nA.  I  did  not  tell  him  that. I  told  him  I  did  fall  two  and  a  half  years  ago  or \nhowever long it was at that point, and I think about the dog and then about \n\nEngleman-H404754 \n7 \n \n \nwork. \n \nQ.  You  then  documented  that  there  were  two  episodes  when  a  dog  jerked \nyour shoulder. Did you tell him about that as well? \nA. I did not tell him the dog jerked my shoulder, no. \n \n On redirect examination, claimant testified that she answered the questions she was \nasked about other shoulder injuries that caused pain, but that neither the fall and the incident \nwith the dog required physical therapy nor an injection into her shoulder.  \n After  claimant rested,  respondents  called  Shelly  Crabtree, the  assistant  director  of \nsurgery at Washington Regional. The initial report of injury did not come to Ms. Crabtree; \nher testimony  was  primarily  about how  work-related  injuries  are  normally managed at \nrespondent  Washington  Regional.  She  testified  that  upon the report of  an  injury,  the \nemployee  is  sent  to  Employee Health  and  the  recommendations  from  Employee  Health \ngovern whether an employee can come back to work that day or if they need to be sent to \nthe workers’ compensation doctor. She stated that at no time did claimant ask her for any \nassistance with her job duties or complain about continuing problems with her shoulders. \nOn  cross-examination,  Ms.  Crabtree  explained  that  there  was  no  light  duty  in  her \ndepartment. She was unaware of the injections that claimant received at Conservative Care \nOccupational Health or the physical therapy that claimant had done before she was released. \nWhen a person gets a “full duty release,” Ms. Crabtree did not do any follow-up because she \nbelieves they are fit to return to duty if released without restrictions. \nRespondent called Heather Weathers, the occupational health nurse at Washington \nRegional, serving as the manager of that department. She was familiar with claimant’s case \nand  was  aware  of  the  incident  of  June  2,  2023.  Claimant  completed  the  paperwork  and \npresented her complaint of shoulder pain on that date. Ms. Weathers said that the restrictions \n\nEngleman-H404754 \n8 \n \n \nof “no push/pull/lift more than five pounds with the left arm. No work above chest level \nwith the left arm” were such that claimant could be accommodated in her department and \nonce she was released to full duty in August, she went back to her regular job. \nOn  cross-examination,  Ms.  Weathers  stated  that  when  an  employee  reported  an \ninjury,  she would  do  what  was  best  for  the  employee  at  the  beginning  and  then  the  claim \nwould be turned over to the workers’ compensation adjuster. She did not know why the claim \nwas  initially  accepted  as job-related  and  then  changed,  as  she  was  not  involved  in  that \ndetermination. Ms. Weathers did not know of any new injuries that claimant sustained after \nAugust 8, 2023.  \nHaving  seen  the  witnesses  testify  and  then  reviewed  the  documentary  evidence  in \nview of that testimony, I have no reason to believe that any of the witnesses were less than \ntruthful. I found claimant’s testimony on her purpose for mentioning other injuries to her \nshoulders  to  various  medical  providers  to  be  credible. I  also  believe  that  she  did  not \nunderstand she could continue with a workers’ compensation claim after she was released \nfrom  conservative  care.\n1\n  The witnesses  for  respondents did  not  agree  on  the  existence  of \nlight  duty,  as  Ms.  Weathers  said  claimant  worked under  restrictions after being  limited in \nweight and height use of her left arm. I do not believe Ms. Crabtree was trying to deceive \nwhen  she  said  no  light  duty  was  available in  her  department, but simply testified as  she \nremembered the events.  \n \n \n \n1\n This lack of understanding was not due to respondent’s failure, as claimant was promptly given the Form N on \nJune 2, 2023. (R. NMX.2). A petition to change physicians was not submitted until after she retained counsel, as it \nwas filed by her attorney on July 29, 2024 (R. NMX. 7-8). \n\nEngleman-H404754 \n9 \n \n \nREVIEW OF THE EXHIBITS \n \n Claimant  submitted  seventy  pages  of  medical  records  in  support  of  her  claim, while \nrespondent submitted fifty-two pages of medical records, many of which were duplicative of those \nrecords submitted by claimant. \nClaimant’s records begin with the medical reports from February 2022 when claimant  fell \nwhile  painting.  As  she  testified,  there  was  only  one  visit  and  after  a negative  left  shoulder  x-ray, \nclaimant was referred to her family practice for any follow-up care that she might need. \nThe  records  from  June  2, 2023, from  Conservative  Care  Occupational  Health contain  the \npatient’s description of the accident the day it occurred. These notes are consistent with her testimony \nthat she stated that she was repositioning a patient on the surgical table when she felt a pop and sharp \npain  in  her  left  shoulder. She mentioned that  her right  shoulder  was  hurting  as  well.  X-rays  were \nnegative for any acute abnormalities, and she received conservative care before returning for a follow \nup visit on June 9, 2023. At that visit, claimant related that her primary problem was the pain in her \nleft shoulder which ranged from moderate to severe depending on her activity; she thought she was \nimproving slightly. Dr. Berestnev referred her to physical therapy and restricted her activity to no work \nabove the shoulders. \nClaimant began physical therapy at Total Spine at Washington Regional on June 14, 2023, and \ncontinued through July 18, 2023. At the final visit, the assessment was that claimant still had acute \npain in the left and right shoulder, but she reported feeling better overall with increased function at \nwork and decreased pain. She returned to Conservative Care on July 21, 2023, where she was seen by \nPhysician’s Assistant Ceth Dawson, who recommended that she return to regular duty with no activity \nrestrictions. She returned to conservative care on August 8, 2023, when Dr. Berestnev found that she \nwas getting better, and he released her from care with no restrictions. \n\nEngleman-H404754 \n10 \n \n \nClaimant next saw Dr. J. Clayton on March 26, 2024, with her chief complaint regarding her \nleft shoulder. This report relates the incident of moving the dog in her vehicle and did not specifically \nmention  the  incident  in  the  operating room  where  she  was  repositioning  a  patient.  Dr.  Clayton \nbelieved that claimant had a rotator cuff impingement and gave her an injection of 1cc of Kenalog 40 \nand 2cc of 1% Lidocaine. When claimant returned to Dr. Clayton on April 16, 2024, claimant related \nthat she had an injury to her left shoulder which was from a fall and clarified that the incident involved \nrepositioning a dog was not the actual inciting event. The result of the examination was “Left shoulder \nhas positive impingement signs. She localizes the pain to the interior lateral aspect of her shoulder but \nsays that it is really deeper than that site. She is grossly neurovascularly intact.” Dr. Clayton believed \nthat  an  MRI  was  appropriate  to  evaluate  her  rotator  cuff pathology  or some other  pathology  that \nmight be causing her significant pain. \nFollowing  the  MRI,  claimant  returned  to  see  Dr.  Clayton  on  May  14,  2024. The  MRI  was \nlargely  unremarkable  although  it  did note  some  degenerative  changes at the  AC  joint.  Dr.  Clayton \nbelieved that claimant needed to see his partner, Dr. Greg Jones. Before she was able to see Dr. Jones, \nshe was treated by Dr. T. Zimmerman on May 17, 2024. Dr. Zimmerman performed an ultrasound \nguided corticosteroid injection into the long head of the bicep tendon sheath of her left shoulder and \nan ultrasound guided corticosteroid injection into the acromioclavicular joint of the left shoulder. Dr. \nZimmerman recorded this history of present illness:  \n“Forty-three-year-old female who presents for evaluation of left shoulder pain. \nShe reports interior left shoulder pain which will radiate to her upper arm and \nsometimes posterior shoulder pain as well. This has been present for over two \nyears and she associates it with starting after falling off a barstool onto her left \nelbow. She reports associated clicking and difficulty with motion. She has pain \nwith reaching over her head or posteriorly.” \n \nDr.  Zimmerman  noted  that  the  MRI  of the  right  shoulder  demonstrated tendinosis  of  the \nsupraspinatus  tendon,  degenerative  of  the  AC  joint,  and  a  buildup of  fluid  in  the  long  head  of  the \n\nEngleman-H404754 \n11 \n \n \nbicep tendon sheath. However, the entire visit related to treatment of her left shoulder; the narrative \nends with the caveat that dictation software was used, and I suspect this was an error in dictation.\n2\n   \nClaimant first saw Dr. Greg Jones on May 29, 2024. Dr. Jones again recounted claimant’s fall \nfrom a step ladder while painting and the episode where a dog jerked her shoulder, but did not mention \nthe incident in the operating room which occurred on June 2, 2023. He reviewed the four views of \nthe shoulder x-ray series from March 26, 2024, and found: \n“She has a flat acromion, non-pointed sealed coracold and normal anatomy of \nthe glenohumeral joint. No evidence of arthritis. She has had an impingement \nchange  in  the  greater tuberosity  and  chronic  AC  arthropathy  changes  with \novert spur  formation,  but  definitely  sclerosis  and  cystic  changes  on the \nclavicular in the AC joint site.” \n \nDr. Jones also reviewed the MRI and found “There is no evidence of full fitness cuff tear, and \nthe bicep tendon has minimal fluid on the Sheath. She has some evidence of subacromial bursitis to \nmy evaluation and exam. There is no full thickness rotator cuff tear.” He recommended a left shoulder \narthroscopic  AC  resection  and subacromial  bursectomy  as  the  appropriate  next  steps  in  treating \nclaimant’s symptoms. Surgery was performed on June 13, 2024. The post-operative diagnosis was:  \n1. Subluxation of the bicep tendon with longitudinal split and hyper vascular tenosynovitis. \n2. AC meniscus arthropathy with torn AC meniscus elements. \n3. Moderately severe subacromial bursitis rotator cuff fully intact. \n \nClaimant returned to Dr. Jones on July 17, 2024. In his history in that clinic note, Dr. Jones \nmentioned the episode that was documented which involved a pop in her shoulder and which resulted \nin her being sent to physical therapy. He further stated: \n“I  am  a  little  bit  confused  in  that  appears  to  have clearly  had a work \ncomponent. A diagnosis was made at work that prompted the use of physical \ntherapy   for   that   purpose. I   think confirming   this   was: 1.Reported 2. \nRecognized  3.  In  my opinion,  greater  to  fifty  percent  contribution  to  the \n \n2\n If it is not an error, then this finding should be included in my analysis regarding the objective findings for the right \nshoulder injury.  \n\nEngleman-H404754 \n12 \n \n \nproblems that exist. I think she needs to pursue this in an appropriate fashion, \nand I have recommended same.” \n \nDr. Jones said she was not ready to return to “full unrestricted lifting activity” and he did not \nrelease her to return to work. \nClaimant began physical therapy at Mercy Occupational Therapy Treatment. The record from \nthe ninth visit on August 19, 2024, showed that physical therapy was causing pain to the claimant’s \nleft shoulder. When Dr. Jones next saw claimant on August 28, 2024, he believed she was so anxious \nto  get  back  to  work  that she  has  been  pressuring  her shoulders  in  terms  of  her  range  of  motion \nrecovery; her shoulder was very inflamed with bursitis at that visit. He gave her a subacromial bursitis \ninjection of 8mL. of 0.25% Marcaine, 2 mL. of Decadron, and prescribed Hydrocodone for two to \nthree  weeks at night to  help  claimant  sleep;  he also  prescribed Diclofenac.  Dr.  Jones  stopped  her \nphysical therapy and scheduled claimant to come back in four weeks. \nClaimant’s next visit was October 2, 2024. Claimant reported she was dramatically better after \nthe  previous  injection  for  about  ten  days,  and  while  her shoulder  remained  weak,  she  had  a  near \nresolution of the pain in her left shoulder. At this visit, she mentioned the continuing problem with \nthe right shoulder, but Dr. Jones thought that dealing with her left shoulder was more pressing and \ndecided not to pursue anything with the right shoulder at that time. Dr. Jones concluded his notes \nwith the following: \n“We are going to continue the physical therapy, hold off any consideration that \na FCI or impairment assessment related to the surgery done on June 13, 2024. \nWill see her back in two months to evaluate her progress and hopefully the job \nand work-related caliber and the work comp setting can be identified that she \ncan  perform  in  the  interim.  This  case  has gotten  confusing  because  of  the \nrefusal  to  consider  an  injury that  was  reported  at  work  and  is  yet  to  be \ndetermined as to that situation.” \n \nClaimant  sent  a  letter  to Dr.  Jones  on  October  14,  2024,  asking  for his  opinion regarding \n\nEngleman-H404754 \n13 \n \n \ncausation (respondent’s non-medical exhibit, page 10-11). Dr. Jones was asked when considering other \nincidents claimant had with her shoulder if “within a reasonable degree of medical certainty that the \nJune 2, 2023, incident is more than 50% the cause of her need for surgery.”  Dr. Jones responded on \nOctober 24,  2024 and clarified that he understood claimant’s history with her left shoulder before \nJune 2, 2023, mentioning both the fall with the contusion and moving a dog, but stated that nothing \nabout those instances arose to the level of the nature of the symptomology which she presented to \nhim. Dr. Jones noted that claimant:   \n“had   received optimum   opportunity   for   conservative   care   including \nextending  physical  therapy with  a  conservative  care, occupational  health \ndepartment or physicians and as detailed notes revealed that it was considered \na work-related injury and persistent in its character. Although it did not rise \nto the level of ‘needing surgery’ had remained the principal diagnosis when \nshe completed care under their auspices.” \n \nDr. Jones stated that claimant’s symptoms continued to worsen and became life-limiting when \nshe came to see him: \n“It is my opinion that the nature of the injury sustained in the work-related \nincident described in detail historically both by her and in the medical records \npreviously making it clear to me that within a reasonable degree of certainty \nthat the June 2, 2023 incident is more that fifty percent the cause of the injury, \nsubsequent symptomology and findings that led me to recommend the surgery \nprocedure undertaken on June 13, 2024.” \n \nDr. Jones saw claimant on December 4, 2024, he recommended a second surgery, an “open \ndeltotrapezial fascial repair.” In this record, the right shoulder is mentioned again: \n“If and when we get to the point of taking care of the right shoulder, I would \njust do it as an open AC resection given the display that she has made with \nreturns to the bilateral stretching injury and catching the patient is likely to \nhave the same sort of AC sprain on the right as we have seen on the left.” \n \nBilateral shoulder x-rays were made during this visit and demonstrated: \n“Suttle superior displacement of the right distal clavicle compared to the \n\nEngleman-H404754 \n14 \n \n \nacromion.  The  left  shoulder  has  a  wide  AC  resection,  flat acromion.  No \nglenohum arthritis or evidence of fracture or destructive lesion with respect to \nthe  left,  fore  view  series.  The right  four view  series demonstrate light  to \nmoderate AC arthropathy with slight dorsal displacement. No glenohumeral \nfracture  displacement and  no  calcification  of  the  rotator  cuff insertion  on \neither shoulder.” \n \nThe second surgery on claimant’s left shoulder was scheduled for January 31, 2025, ten days \nafter the hearing in this case took place. No additional records regarding that surgery were submitted. \nIn  addition  to  the  medical  records, claimant  submitted  a  copy  of  the  AR-N form  that  was \ncompleted on June 2, 2023, in which claimant maintained that she was injured on both shoulders while \n“holding heavy weight of patient to prevent injury”. \nRespondents’ medical  exhibits which did  not duplicate  the  records submitted  by  claimant \nincluded records from Mercy Hospital Occupational Therapy on August 26, 2024, which added little \nto what Dr. Jones explained in his records. Respondents’ non-medical records numbered were seven \npages,  including the  Form  N  given  to  claimant  on  June  2,  2023, claimant’s petition to change \nphysicians, and the letter from claimant’s attorney to Dr. Jones seeking clarification of his records and \nasking his opinion as to causation. \nADJUDICATION \n \n As  this  claim  was  controverted  in  its  entirety, claimant  has  the  burden  of  proving by  a \npreponderance of the evidence that (1) an injury occurred that arose out of and in the course of her \nemployment; (2) the injury caused internal or external harm to the body that required medical services \nor  resulted  in  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence  supported  by \nobjective findings, which are those findings which cannot come under the voluntary control of the \npatient; and (4) the injury was caused by a specific incident and is identifiable by time and place of \noccurrence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). Respondents \nopposed this claim because they believed there was a lack of objective findings as to the alleged injury \n\nEngleman-H404754 \n15 \n \n \nof June 2, 2023, and because claimant had preexisting issues with her shoulders.\n3\n  \nThe proof on the first and fourth elements were well established; claimant promptly reported \nthe injury on June 2, 2023, and was sent by her employer for medical treatment the same day. There \nis also objective medical evidence of an injury to both shoulders. Dr. Jones was able to see the left \nshoulder injury during surgery, recording the post operative diagnosis of a subluxation of the bicep \ntendon with longitudinal split and hyper vascular tenosynovitis, AC meniscus arthropathy with torn \nAC meniscus elements, and moderately severe subacromial bursitis rotator cuff fully intact. Because \nthe  left  shoulder  has  been  the  main  emphasis  of  her  course  of  treatment,  there  are  fewer medical \nrecords for the right shoulder injury. However, Dr. Jones mentioned in his December 04, 2024, chart \nnote that  x-rays of the right shoulder “demonstrates mild-to-moderate  AC  arthropathy  with  slight \ndorsal displacement.”  That suffices for an objective finding of an injury to the right shoulder.  \n That then leaves the question whether claimant showed by a preponderance of the evidence \nthat the incident of June 2, 2023, caused the harm for which claimant seeks treatment. The evidence \non this point was somewhat muddied by the inquiry claimant made of Dr. Jones regarding causation. \nHe was asked if the June 2, 2023, incident was more than 50% the cause of claimant’s need for surgery, \nand answered that he believed the “June 2, 2023, incident is more than 50% the cause of the injury.” \nThat,  however, would  only  be  relevant  if one  of  the  issues  in this  case  called  for  a \"major  cause\" \nanalysis,  which  applies to  injuries  that  are  not  identifiable  by  time  and  place  pursuant  to  Arkansas \nCode  Annotated  §  11-9-102(4)(E)(ii)), or claims  where  a  claimant  is  seeking  permanent  disability \nbenefits pursuant to Arkansas Code Annotated section 11-9-102(4)(F)(ii).  That analysis is unnecessary \nsince claimant sufficiently identified the time and place of an injury, and she is not seeking permanent \n \n3\n Respondent  also  contended  that claimant “possibly underwent new injuries after June 2, 2023” but there was no \nevidence presented at the hearing to support a contention of a new injury.  \n\nEngleman-H404754 \n16 \n \n \ndisability at this time. An employer takes the employee as he finds him, and employment circumstances \nwhich  aggravate  pre-existing  conditions  are  compensable. Heritage  Baptist  Temple  v.  Robison,  82  Ark. \nApp.  460,  464,  120  S.W.3d  150,  152  (2003).  An  aggravation  of  a  preexisting,  non-compensable \ncondition by a compensable injury is, itself, compensable. Williams v. L&W Janitorial, Inc., 85 Ark. App. \n1, 145 S.W.3d 383 (2004).\n4\n \nBased on the foregoing analysis, I find claimant has met her burden of proof that she sustained \na compensable bilateral  shoulder  injury  on  June  2,  2023. Because  claimant’s shoulder injuries are \nunscheduled injuries, she must prove by a preponderance of the evidence that she remains within her \nhealing period and suffers a total incapacity to earn wages in order to receive temporary total disability \nbenefits, Allen Canning Co. v. Woodruff, 92 Ark. App. 237, 212 S.W.3d 25 (2005).  From the evidence \nbefore  me, claimant  has proven  that  she  remains  in her  healing  period and is  entitled  to additional \nmedical treatment. I also find she is totally incapacitated from earning wages. Dr. Jones restricted her \nfrom work following surgery for two months on July 17, 2024. He noted she had functional limitations \nthat rendered her not ready for work on October 2, 2024, and scheduled her for a reevaluation in two \nmonths. At the December 4, 2024, examination, it was determined that a second left shoulder surgery \nwould  be  necessary,  and  as  mentioned  above,  claimant  was  scheduled  for  that  procedure  after  the \nhearing in this case. In Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002), the Arkansas Court \nof Appeals held: \"If, during the period while the body is healing, the employee is unable to perform \nremunerative  labor  with  reasonable  consistency  and  without  pain  and  discomfort,  his  temporary \ndisability is deemed total.\" Based on my finding that additional medical treatment is appropriate for \nclaimant's injury, and that I found her to be a credible witness as to the pain she suffers on a near-\n \n4\n Because  the  issues  in  this  matter  were  limited  to  whether  this  was  a  compensable  injury  and  if  so, claimant’s \nentitlement to medical and temporary total disability benefits, it was not necessary for me to decide if claimant was \nsuffering from a pre-existing condition on June 2, 2023, and I offer no opinion on that question.  \n\nEngleman-H404754 \n17 \n \n \nconstant basis, I find she qualifies for temporary total disability from June 13, 2024 until a date to be \ndetermined. \nORDER \n \nRespondents  are directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one half by the carrier and one \nhalf by the claimant. \nThe respondent shall pay the court reporter’s fee in the amount of $585.45. \nAll issues not addressed herein are expressly reserved under the Act. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":35195,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404754 AMANDA ENGLEMAN, EMPLOYEE CLAIMANT WASHINGTON REGIONAL MEDICAL CENTER, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED APRIL 18, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["shoulder","back","rotator cuff","sprain","fracture"],"fetchedAt":"2026-05-19T22:41:51.197Z"},{"id":"alj-H403261-2025-04-18","awccNumber":"H403261","decisionDate":"2025-04-18","decisionYear":2025,"opinionType":"alj","claimantName":"Telia Smith","employerName":"Amazon.Com Services, LLC","title":"SMITH VS. AMAZON.COM SERVICES, LLC AWCC# H403261 April 18, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SMITH_TELIA_H403261_20250418.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SMITH_TELIA_H403261_20250418.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H403261 \n \nTELIA D. SMITH, EMPLOYEE         CLAIMANT \n \nAMAZON.COM SERVICES, LLC, EMPLOYER                    RESPONDENT \n \nAMERICAN ZURICH INS. CO./ \nSEDGEWICK CLAIMS MANAGEMENT, CARRIER/TPA        RESPONDENT \n  \n \n \nOPINION FILED 18 APRIL 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 26 March 2025 in Pine Bluff, Arkansas. \n \nThe pro se claimant failed to appear. \n \nNewkirk & Jones, Mr. David C. Jones, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 26 March 2025. This case relates to an alleged workplace injury \noccurring on 6 March 2024. The respondents introduced, and I admitted to the record as \nRespondents’ Exhibit No 1, forty pages of forms, correspondence, and filings in support of \ntheir motion. Additionally, I admitted to the record as Commission’s Exhibit No 1 six pages \nof correspondence and related materials. \nThe claimant, though counsel, filed a Form AR-C on 18 May 2024. The claimant’s \ncounsel later sought to withdraw from this matter; and the Full Commission approved that \nrequest by way of an Order dated 22 November 2024. On 23 January 2025, the respondents \nfiled the immediate motion seeking a dismissal of the claim. Their motion cites Ark. Code \nAnn. § 11-9-702(a)(4) & (d) (Repl. 2012) and Commission Rule 099.13 (“Rule 13”) as grounds \nfor a dismissal.  \n\nT. SMITH- H403261 \n2 \n \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail, on 24 January 2025 to the \naddress provided on the AR-C. After no response or objection was received by my office, a \nnotice of a hearing on that motion was sent in the same fashion on 24 February 2025. When \nmailings are returned to the Commission as not accepted or undeliverable, those mailings \nare appended to the claim’s file. This file contains “unclaimed” returns of the notice letters \nsent via Certified Mail. No other mailings were returned as unaccepted or undeliverable. \nSee Commission’s Exhibit No 1. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on that motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute her \nclaim under Rule 13. \n \n4. The Motion to Dismiss is hereby granted; this claim for additional benefits is \ndismissed without prejudice under Rule 13. \n \nDISCUSSION \nThe respondents appeared on 10 April 2025 and presented their motion. As argued \nby the respondents at the hearing, our Rule 13 provides for a dismissal for failure to \nprosecute an action upon application by either party and reasonable notice. The claimant \ndid not file a response to the motion or appear at the hearing to argue against the dismissal \nof her claim. The last action taken on behalf of the claimant appears to be her counsel’s \nrequest for to withdraw from the matter on 14 November 2024. A dismissal without \n\nT. SMITH- H403261 \n3 \n \nprejudice is, therefore, appropriate. Because of this finding, the arguments made under \nArk. Code Ann. § 11-9-702 will not be addressed. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3736,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H403261 TELIA D. SMITH, EMPLOYEE CLAIMANT AMAZON.COM SERVICES, LLC, EMPLOYER RESPONDENT AMERICAN ZURICH INS. CO./ SEDGEWICK CLAIMS MANAGEMENT, CARRIER/TPA RESPONDENT OPINION FILED 18 APRIL 2025 Heard before Arkansas Workers’ Compensation Commission (“the...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:41:53.266Z"},{"id":"alj-H303330-2025-04-17","awccNumber":"H303330","decisionDate":"2025-04-17","decisionYear":2025,"opinionType":"alj","claimantName":"Alma Hicks","employerName":"Hamburg Jr. High School","title":"HICKS VS. HAMBURG JR. HIGH SCHOOL AWCC# H303330 April 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HICKS_ALMA_H303330_20250417.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HICKS_ALMA_H303330_20250417.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                      AWCC CLAIM NO.: H303330 \n \nALMA M. HICKS,   \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nHAMBURG JR. HIGH SCHOOL,  \nEMPLOYER                                                                                                           RESPONDENT  \n                                                                                                       \nAR SCHOOL BOARDS ASSOC. WCT,              \nINSURANCE CARRIER/TPA                                                                               RESPONDENT \n      \n        \n                                              OPINION FILED APRIL 17, 2025    \n \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n  \nThe Claimant, Pro Se, appeared at the hearing. \n \nThe Respondents represented by the Honorable Melissa Wood, Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis matter comes before the Commission pursuant to a Motion to Dismiss for Failure to \nProsecute filed by the Respondents.  A hearing was conducted on the motion to dismiss on April \n2, 2025, in El Dorado, Arkansas.  Thus, the sole issue for determination was whether this claim \nshould be dismissed due to the Claimant’s failure to prosecute it under Ark. Code Ann. §11-9-702 \n(Repl. 2012), and/or Arkansas Workers’ Compensation Commission Rule 099.13. \n The record consists of the April 2, 2025, hearing transcript and exhibits.  In that regard, \nCommission’s Exhibit 1 includes eight (8) actual pages, which has been marked accordingly; \nand Respondents’ Exhibit 1 consisting of sixteen (16) numbered pages was marked as thus so.   \n The Claimant, Ms. Alma Hicks, and her son, D’Juan Hicks, testified during the hearing.  \n\nHICKS – H303330 \n \n \n2 \n \nReasonable  notice  of  the  dismissal  hearing  was had all  the  parties  in  the  manner  set  by \napplicable law.   \n                            Background \nThis  is  the  second  dismissal  hearing  to be  held in  this  claim.   The record  reflects  the \nfollowing procedural history: \n The Claimant’s former attorney filed a Form  AR-C  with  the  Commission  on  May  23, \n2023, alleging that the Claimant sustained an accidental injury on March 14, 2023, while working \nfor Hamburg Jr. High School, the respondent-employer in this matter.  According to this form, the \nClaimant allegedly sustained injuries to her face and head while moving a desk.  The Claimant’s \nformer attorney requested only additional benefits.    \nOn  May  24,  2023,  the  Respondents  initially  filed  a  Form  AR-2  with  the  Commission \naccepting this as a “medical only claim.”  Subsequently, the Respondents filed an amended Form \nAR-2 on September 18, 2023, accepting the claim as being compensable and paid some medical \nbenefits and temporary total disability compensation to and on behalf of the Claimant.   \nLater,  the Claimant’s attorney filed  a  motion to  withdraw  from  representing  her in  this \nmatter.  On June 25, 2024, the Full Commission entered an order granting the motion. \nSubsequently, the Claimant did not pursue her claim for additional workers’ compensation \nbenefits.  Most notably, the Claimant did not make a bona fide request for a hearing.   \nTherefore,  on  July  8,  2024,  the  Respondents  filed  with  the Commission a  Motion  to \nDismiss for Failure to Prosecute, along with a certificate of service to the Claimant.   \nThe first dismissal hearing was held on September 4, 2024.   The Claimant appeared at the  \ndismissal hearing.  The Respondents  appeared at  the  hearing through their attorney.    Counsel \nargued for dismissal of this case because the Claimant had not sought any type of bona fide hearing \n\nHICKS – H303330 \n \n \n3 \n \nsince  the  filing  of  the  Form  AR-C,  which  was  done in  May  2023.   At  that  time,  the Claimant \nrequested that  her  claim  not  be  dismissed.  Specifically, the Claimant stated that  she  had \nexperienced personal challenges and been unable to prosecute her claim.  However, the Claimant \nindicated that she wished to pursue her claim and would do so.  \nTherefore, in an opinion filed October 22, 2024, I denied the Respondents’ motion based \non the Claimant’s promise to pursue her claim.  Specifically, I made the following findings: \nAfter considering the evidence before me, I find that the Respondents’ motion to \ndismiss this claim due to a lack of prosecution to be well taken.  However, I find that the \ndismissal of this claim should be denied  at this time because the Claimant has indicated \nthat she intends to pursue additional benefits in this matter.  Accordingly, the Respondents’ \nmotion to dismiss this claim is hereby respectfully denied. \n Of note, during the hearing, the Claimant was cautioned that failure to prosecute \nher claim could result in it being dismissed.  \n \nAs  a  result,  on  October  22, 2024, I  returned  the  case to the Commission’s general files.  \nHowever,  since  this  time, the  Claimant  has  taken  no  action  whatsoever  to request  a  hearing  or \notherwise taken any steps to pursue her claim.  \nTherefore, on  January  16,  2025,  the  Respondents  filed  a second Motion  to  Dismiss  for \nFailure to Prosecute.  Specifically, counsel moved for dismissal of this claim under the authority \nof Ark. Code Ann. §11-9-702 (Repl. 2012), and/or Arkansas Workers’ Compensation Commission \nRule 099.13.  Pursuant to this motion, a Hearing Notice was sent to the parties on February 25, \n2025, scheduling the dismissal hearing for April 2, 2025, at the Union County Courthouse, in El \nDorado.    \nThe second dismissal hearing was held as scheduled.  The Claimant appeared at the hearing \nand was accompanied by her son, D’Juan Hicks.  Counsel for the Respondents argued for dismissal \nof  this claim because  the  Claimant  has been  non-responsive  to  the Medical  Cost  Containment \nDivision at the Commission regarding her  request for a change of physician, and she has made no \n\nHICKS – H303330 \n \n \n4 \n \nrequest  for  a  hearing.   However,  the  Claimant again  objected  to her  claim being  dismissed.  \nSpecifically, the Claimant indicated that she has experienced some life-changing challenges, which \nhave  prevented  her  from  being  able  to pursue her  claim.  In  this  regard,  unfortunately,  the \nClaimant’s brother and her mother  passed away  on the  first  of  this year.  Also,  the  Claimant \ntestified that in recent months, she has had to find other housing and move.  However, the Claimant \nagain testified that she intends to pursue her claim for additional benefits, which includes a request \nfor a change of physician.   \n            Discussion  \nIn  the  case  at  bar,  the  statutory provisions, and Arkansas Workers’ Compensation Rule \napplicable in the Respondents’ motion to dismiss this claim for a lack of prosecution are outlined \nbelow:  \nIn that regard, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \n            AWCC 099.13 reads:  \nUpon meritorious application to the Commission from either party in an action pending \nbefore the Commission, requesting that the claim be dismissed for want of prosecution, \nthe Commission may, upon reasonable notice to all parties, enter an order dismissing the \nclaim for want of prosecution.  \n \nAs the moving party, under Ark. Code Ann. §11-9-705(a)(3) (Repl. 2012), the Respondents \nmust prove their entitlement to the relief requested—dismissal of this matter—by a preponderance \nof  the  evidence.    This  standard  means the evidence having  greater  weight  or  convincing  force.  \n\nHICKS – H303330 \n \n \n5 \n \nBarre  v.  Hoffman,  2009  Ark.  373,  326  S.W. 3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212 \nArk. 491, 206 S.W.2d 442 (1947).  \n  With respect to the evidence described above, (1) the parties were provided with reasonable \nnotice of the second Motion to Dismiss for Failure to Prosecute and the hearing on it; and (2) the \nClaimant has made no bona fide request for a hearing since the filing of the Form AR-C in May \n2023,  and  the first  dismissal  hearing.   However,  the  Claimant  appeared at  the second dismissal \nhearing and asked that her claim not be dismissed because she intends to take immediate steps to \npursue her claim, starting with a request for a change of physician. \n While I sympathized immensely with the Claimant’s circumstances during the hearing, I \nnoted the  importance of  the  need  for  her  to act in  furtherance  of her  claim as  soon  as  possible.  \nBoth the Claimant and her son indicated that they understood the need for her to pursue this claim \ngiven  the  fact  that  this  is  the  second  time a dismissal hearing has  been  held  on  this  claim.    Of \nsignificance,  the  Claimant testified that after  the  hearing, she  would  contact  the  Medical  Cost \nContainment Division and provide them with the name of the doctor she wishes to be evaluated \nby for her compensable injury.  \n Therefore,  based on the  evidence before  me,  I  find the Respondents’ second  motion  to \ndismiss this claim due to a lack of prosecution to be well taken.  Nevertheless, I am persuaded that \nthe dismissal of this claim should be denied at this time because the Claimant has indicated that \nshe  intends  to  pursue  additional  benefits, in  the  form of a request  for  a change  of  physician.  \nAccordingly, the Respondents’ most  recent motion  to dismiss  this  claim is  hereby  respectfully \ndenied. \n However, I  admonished  the  Claimant  that  if  she does  not pursue  her  claim in  a  timely \nfashion, she runs the risk of it being dismissed.   \n\nHICKS – H303330 \n \n \n6 \n \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. The Respondents filed a second motion to dismiss, for which a hearing was \nheld.  The Claimant has indicated that she will pursue her claim in the near \nfuture.   \n \n3.         The Respondents’ second motion to dismiss is hereby respectfully denied.   \n              \n \n        ORDER \n \nIn accordance with the foregoing findings of fact and conclusions of law set forth above, \nthe Respondents’ most  recent Motion  to  Dismiss  for  Failure  to  Prosecute  is  hereby  respectfully \ndenied at this time. \nIT IS SO ORDERED. \n                                                                       \n_______________________________ \n                                                                                    CHANDRA L. BLACK  \n                                                   Administrative Law Judge","textLength":11377,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H303330 ALMA M. HICKS, EMPLOYEE CLAIMANT HAMBURG JR. HIGH SCHOOL, EMPLOYER RESPONDENT AR SCHOOL BOARDS ASSOC. WCT, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 17, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in El Dorad...","outcome":"dismissed","outcomeKeywords":["dismissed:8","denied:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:41:47.037Z"},{"id":"alj-H402807-2025-04-17","awccNumber":"H402807","decisionDate":"2025-04-17","decisionYear":2025,"opinionType":"alj","claimantName":"Lawrence Ragan","employerName":"Mountain View School District","title":"RAGAN VS. MOUNTAIN VIEW SCHOOL DISTRICT AWCC# H402807 April 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RAGAN_LAWRENCE_H402807_20250417.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RAGAN_LAWRENCE_H402807_20250417.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H402807 \nLAWRENCE RAGAN, EMPLOYEE     CLAIMANT \n \nMOUNTAIN VIEW SCHOOL DISTRICT’ \nEMPLOYER          RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOC.     RESPONDENT \n \nOPINION AND ORDER FILED APRIL 17, 2025 \nThe Hearing before Administrative Law Judge James D. Kennedy in Clinton, \nArkansas, was held on April 3, 2025. \nClaimant was pro-se and failed to appear. \nRespondents were represented by Jarrod Parrish, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A  hearing  was  held  in  the  above  styled  matter  on the  3\nrd\n day  of April 2025, in \nClinton, Arkansas, on Respondent’s Motion to Dismiss for failure to prosecute pursuant \nto Arkansas Code Ann. 11-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct. The claimant was pro se and failed to appear on his own behalf. The respondents \nwere represented by Jarrod Parrish of Little Rock, Arkansas.  \n A First Report of Injury was filed on April 19, 2024, which described the claimed \ninjury  as  an  ankle  fracture  that  occurred  while the claimant  was walking  on  a  slope \nbetween a parking lot and a bus, and which occurred when he slipped and fell. An AR-2 \nwas filed on April 30, 2024, which provided that the claim was denied due to not arising \nout of or within the course and scope of the claimant’s employment. On May 10, 2024, \nthe claimant contacted the Commission by letter, requesting a review of his claim denial.  \nThe  claimant  responded to  the  prehearing  questionnaire  and  a  prehearing  telephone \n\nLawrence Ragan – H402807 \n2 \n \nconference was held on October 7, 2024, and a Prehearing Order was filed on October \n8, 2024, setting the matter for a hearing on January 23, 2025, in Clinton Arkansas.   \n On  December  29,  2024,  the  Claimant  notified  the  Commission  by  email  that  he \nwas cancelling his request “for appeal in regard to the above-referenced claim” and the \nhearing  was  cancelled. On  or  about  February  24,  2025,  the  Respondents  notified  the \nCommission  by  letter  that  they  were  requesting  that  the  claim  be  dismissed  due  to  no \nForm AR-C being filed by the Claimant and for the Commission to take “whatever action \nis necessary” for the dismissal of the claim. No response was filed by the Claimant so \nappropriate notice of a Motion to Dismiss hearing was provided to the Claimant setting \nthe hearing for April 3, 2025, at 10:00 a.m., in Clinton Arkansas. Later on March 7, 2025, \nthe Claimant notified the Commission in regard to the Motion to Dismiss, “I do not wish to \npursue this claim with the Workers’ Compensation Commission and would appreciate it \nif you could take whatever steps necessary to dismiss the workers comp claim against \nMountain View School District.” \n A  hearing  was  held  on April  3, 2025, and  the  claimant failed  to  appear.  The \nRespondents  were  represented  by Jarrod  Parrish,  who  requested  that  the  matter  be \ndismissed pursuant to Rule 099.13 of the Arkansas Workers’ Compensation Commission \nand A.C.A. 11-9-702. \nORDER \n Pursuant to the above statement of the case, documents entered into the record, \nand statements by the Attorney for the Respondents, there is no alternative but to grant \n\nLawrence Ragan – H402807 \n3 \n \nthe Motion to Dismiss without prejudice pursuant to Rule 099.13 of the Arkansas \nWorkers’ Compensation Commission and A.C.A. 11-9-702.   \nIT IS SO ORDERED. \n                \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":3572,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402807 LAWRENCE RAGAN, EMPLOYEE CLAIMANT MOUNTAIN VIEW SCHOOL DISTRICT’ EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC. RESPONDENT OPINION AND ORDER FILED APRIL 17, 2025 The Hearing before Administrative Law Judge James D. Kennedy in Clinton, Arkansas, w...","outcome":"dismissed","outcomeKeywords":["dismissed:7","denied:1"],"injuryKeywords":["ankle","fracture"],"fetchedAt":"2026-05-19T22:41:49.111Z"},{"id":"alj-H002934-2025-04-16","awccNumber":"H002934","decisionDate":"2025-04-16","decisionYear":2025,"opinionType":"alj","claimantName":"Vanessa Delamar","employerName":"Arkadephia Human Dev. Ctr","title":"DELAMAR VS. ARKADEPHIA HUMAN DEV. CTR. AWCC# H002934 April 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Delamar_Vanessa_H002934_20250416.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Delamar_Vanessa_H002934_20250416.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H002934 \n \n \nVANESSA DELAMAR, EMPLOYEE CLAIMANT \n \nARKADEPHIA HUMAN DEV. CTR., \n EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIV., \n CARRIER/THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED APRIL 16, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 29, 2025, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented  by  Mr. Charles  H.  McLemore,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On January  29,  2025,  the  above-captioned  claim  was  heard  in Little  Rock, \nArkansas.  A prehearing conference took place on November 20, 2024.  The Prehearing \nOrder entered on November 21, 2024, pursuant to the conference was admitted without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the \nstipulations, issues, and respective contentions, as amended, were properly set forth in \nthe order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  Following amendments, they read as follows: \n\nDELAMAR – H002934 \n \n2 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The     employee/employer/carrier/third-party     administrator relationship \nexisted at  all  relevant  times,  including  May  11,  2020,  when  Claimant \nsustained compensable injuries to her back, right arm, and right shoulder.  \nRespondents accepted these injuries as compensable. \n3. Claimant’s average weekly wage of $805.45 entitles her to compensation \nrates of $537.00/$403.00. \n4. Respondents have controverted this claim for additional benefits. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  Following amendments, the following were litigated: \n1. Whether  Claimant  sustained a compensable  injury to her left  hip by \nspecific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged compensable left hip injury, to include a total hip \nreplacement. \n3. Whether Claimant   is   entitled   to additional temporary   total   disability \nbenefits for the period of May 25, 2021, through July 6, 2022.\n1\n \n \n \n1\nThis was the date supplied by the parties at the hearing.  [T. 7]  But it is clearly \nan error; the payout history that is in evidence (Respondents’ Exhibit 2) shows that \npayment  of  temporary  total  disability  benefits  to  Claimant  resumed  on  July  27,  2022.  \n\nDELAMAR – H002934 \n \n3 \n4. Whether Respondents  are  entitled  to  an  offset  or  a  credit  for  temporary \ntotal disability benefits that they paid for the period of October 31, 2022, to \nNovember 29, 2022. \n5. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant  contends  that she  sustained  compensable  injuries  to  her  right \nshoulder  and  left  hip  on  May  11,  2020.    Respondents  have  controverted \nthe condition of the left hip.  Claimant contends entitlement to payment of \nmedical expenses associated with her left hip injury as well as temporary \ntotal disability benefits. \n Respondent: \n1. Respondents contend that Claimant reported having an injury on May 11, \n2020,  when  she  fell  and  landed  on  her  right  arm  and  injured  her  back, \nwhich they accepted  as  compensable.  Claimant  has  been  provided \nreasonable  and  necessary treatment  of her  compensable  injury,  and  has \nbeen paid temporary total disability benefits while in her healing period for \nher compensable injury. \n \nFor that reason, it is reasonable to conclude that the parties intended the end date to be \nJuly 26, 2022.  It will be analyzed as such. \n\nDELAMAR – H002934 \n \n4 \n2. Respondents provided medical treatment for Claimant’s low back with Dr. \nWayne Bruffett,  who  released her at  maximum  medical  improvement to \nfull duty with respect to her low back on August 5, 2020, but referred her \nto a hip specialist for her very arthritic left hip.  They provided treatment for \nher left hip with Dr. Adam Smith until he released her at maximum medical \nimprovement  on  December  22,  2020.    On  that  date, he  assigned  her no \npermanent impairment to her left hip due to her work injury, and also wrote \nthat she needed  a  total  hip  replacement  for  her end-stage,  degenerative \njoint disease, which again was not due to her work injury. \n3.  Respondents covered Claimant’s October 21, 2020, right shoulder rotator \ncuff  repair  with  Dr.  Phillip  Smith.  He released her at  maximum  medical \nimprovement  for her shoulder  on  May  3,  2021,  with  no  work  restrictions, \nalong   with an   order for passive   range-of-motion   measurements   to \ndetermine  permanent  impairment.  Respondents paid  temporary  total \ndisability  benefits  until  May  3,  2021.  Smith  ultimately  assigned  Claimant \nan   impairment   rating   of   six  percent   (6%)   to   the  body   as   a   whole \nconcerning  her  shoulder.    Respondents  accepted  this  rating  and  paid \nClaimant permanent partial disability benefits pursuant to it. \n4. Respondents provided Claimant with further treatment with Dr. Smith, and \nshe  was  paid additional temporary  total  disability  benefits  from  July  27, \n2022,  until  November  29,  2022.  However,  Smith again released  her  at \nmaximum  medical  improvement on  October  31,  2022—resulting  in  an \n\nDELAMAR – H002934 \n \n5 \noverpayment of temporary total disability benefits.  Respondent is entitled \nto a credit therefor. \n5. Respondents further contend that  the  left  total  hip  replacement  that \nClaimant demands is not reasonable and necessary medical treatment for \nher compensable   injuries.  She has   reached   maximum   medical \nimprovement for  them.  After Claimant  requested  a  continuance  of  the \nhearing,  on  June  3,  2022,  this  file was  returned  to  the Commission’s \ngeneral  files,  and  no  hearing  took  place.  Respondents filed a motion  to \ndismiss this claim, to which she has objected. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe testimony of the witness and to observe her demeanor, I hereby make the following \nFindings of Fact and Conclusions of Law in accordance with Ark. Code Ann. § 11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her left hip by specific incident. \n4. Because of Finding/Conclusion NO. 3, supra, Claimant has not proven by \na  preponderance  of  the  evidence  that  she is  entitled  to  reasonable  and \n\nDELAMAR – H002934 \n \n6 \nnecessary medical treatment of her alleged compensable left hip injury, to \ninclude a total hip replacement. \n5. Claimant has  proven  by  a  preponderance  of  the  evidence  that  she is \nentitled to additional temporary total disability benefits from May 25, 2021, \nthrough July 26, 2022. \n6. The evidence preponderates that Respondents are entitled to a dollar-for-\ndollar  offset  concerning  their  overpayment  to  Claimant  of  temporary  total \ndisability  benefits  for  the  period  of  October  31,  2022,  through  November \n29, 2022. \n7. Claimant has  proven  by  a  preponderance  of  the  evidence  that  she is \nentitled to a controverted attorney’s fee. \nADJUDICATION \nSummary of Evidence \n Claimant  was  the sole witness.  Along  with the Prehearing Order  discussed \nabove,  the  exhibits admitted  into  evidence were Claimant’s Exhibit 1, a compilation of \nher medical records, consisting of two index pages and 92 numbered pages thereafter; \nRespondent’s Exhibit  1,  another compilation  of Claimant’s medical  records,  consisting \nof four  abstract/index  pages  and 128 numbered  pages  thereafter; and Respondents’ \nExhibit 2,  non-medical  records,  consisting  of  one  index  page  and 23 numbered  pages \nthereafter. \n\nDELAMAR – H002934 \n \n7 \n In addition, I have blue-backed to the record the post-hearing briefs of Claimant \nand  Respondents,  both  filed  on  February  12,  2025,  and  consisting  of  four  and  six \nnumbered pages, respectively. \nA. Compensability \n Introduction.  As set out above, the parties have agreed that Claimant sustained \ncompensable injuries to her back, right arm, and right shoulder on May 11, 2020.  But in \nthis action, she is asserting that as a result of that same specific work-related incident, \nshe also suffered a compensable injury to her left hip.  Respondents have controverted \nthe alleged hip injury. \n Standards.   Arkansas Code  Annotated  § 11-9-102(4)(A)(i)  (Repl.  2012),  which  I \nfind applies to the analysis of this alleged injury, defines “compensable injury”: \n(i) An  accidental  injury  causing  internal  or  external  physical  harm  to \nthe  body  .  .  .  arising  out  of  and  in  the  course  of  employment  and \nwhich requires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident and is \nidentifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16). \n If  Claimant  fails  to  establish  by  a  preponderance  of  the  evidence any of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \n\nDELAMAR – H002934 \n \n8 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n Discussion.  Claimant, who is 67 years old and a high school graduate, testified \nthat she  first  went  to  work for Respondent  Arkansas  Human  Development  Center - \nArkadelphia (“AHDC”) in May 1999.  At the time of the stipulated work-related incident \non May 11, 2020, she was employed as a teacher’s assistant.  This job, which she held \nuntil July 20, 2020, was strenuous; and her duties varied widely.  For example, not only \ndid she assist clients with personal grooming, but she brought boxes of books for them \nto  shred.   She  helped  them  with  craft  projects,  and  used  a  computer  to  track  their \nprogress  in  the  classroom.   At  times,  she  even  had  to  operate  a  forklift.    On  other \noccasions, she transported clients to and from their homes, medical appointments, and \nvarious outings. \n Asked how she was injured at work, Claimant responded: \nI went to work that morning and I was getting ready to get off, and I was—I \nhad  one  of  the  clients  in  a  wheelchair  and  I  was  proceeding  to push  her \nhome  from  the  classroom,  and  as  I  got  to  the  door  to  push  her  out  the \ndoor, I ended up with the wheelchair and me both landing on the concrete \npavement, and I had to end up at the emergency room from there.\n2\n \n \n \n2\nThe report from Claimant’s treatment at CHI St. Vincent Hot Springs on May 12, \n2020, contains the following recountings of Claimant’s accident: \n \nPer Provider Injury Alert, “Employee stated that she was getting ready to \nleave.    She  was  walking  around  another  client  in  a  wheelchair.    The \nemployee  moved  the  wheelchair  and  it  caught  her  pants.    She  [f]ell  and \nlanded on her right arm and injured her back.” \n \n. . . \n\nDELAMAR – H002934 \n \n9 \n \nClaimant  initially  treated  at  an  emergency  room  in  Arkadelphia  before  going  on  to  Hot \nSprings. \n Asked  about  the  condition  of  her  hip  after  the  wheelchair  incident,  Claimant \nrelated: \nIt  was  like  my  hip  would—when  I  would,  like,  try  to  get  up,  it  was  like  I \ncould  feel  something in  there that  wasn’t  right, and  it  was  just  like  be \nhurting all the time, so that’s why I went to the doctor and then he started \ngiving me injections.  Then he told me the injections didn’t work so he told \nme I needed to have a total hip [replacement]. \n \nAlong with the injections, her hip was being treated with physical therapy. \n According  to  Claimant,  she  was  being  treated  for  her  hip  by  Dr.  Phillip  Smith.  \nThe following exchange took place on direct examination: \nQ. And  to  the  best  of  your  knowledge—before  you  had  your  hip \nreplacement  surgery, to  the best  of  your  knowledge,  were the  bills \nbeing paid by workers’ compensation? \n \nA. No. \n \nQ. Tell me— \n \nA. My insurance— \n \nQ. —at what point in time did your insurance take over and pay? \n \nA. When  the  doctor  said—it turned around that he didn’t think that I \ngot hurt when I fell. \n \nQ. Okay. \n \n \nThe  problem  began  on  5/11/2020.    1\nst\n visit;  5/12/2020:    going  around  a \nclient  in  wheelchair  that  was  then  pushed  essentially  knocking  her  down, \nfalling onto R side. \n \n \n\nDELAMAR – H002934 \n \n10 \nA. And I told him I did, and so workman’s comp stopped paying for me \nat my office visits, so then my insurance took over. \n \n. . . \n \nQ. Before  Dr.  Smith  indicated  that  a  hip  replacement  surgery  was \nbeing recommended for you.  Okay? \n \nA. Yes, sir. \n \nQ. Okay.  Before that happened— \n \nA. Mm-hm. \n \nQ. —the hip treatment that you were getting, do you know whether or \nnot it was being paid by workers’ compensation? \n \nA. Yes, it was. \n \nClaimant  added  that  while  her  need  for a  hip  replacement  was  broached  in  December \n2020,  the  operation  did  not  happen  until  May  25,  2021.  During  December  2020,  she \ndiscovered that Respondents were not going to cover the surgical procedure. \n As  a  result  of  the  hip  replacement,  per  Claimant,  the  condition  of  her  hip \nimproved.  She is glad that she underwent the procedure. \n During her testimony, Claimant acknowledged that, as reflected in Respondents’ \nExhibit 1, she had pre-existing hip problems.  The following exchange occurred: \nQ. What’s  the  difference  between  after  this  May  the  11\nth\n of  2020 \naccident  and  those  things  that  you  had  been  to  the  doctor  for \nbefore? \n \nA. Because  before  it  was  like  after  the  doctor  had  treated  me  for  the \nother two incidents, my hip got better.  It wasn’t—it didn’t bother \nme.  But this time when I fell, it didn’t stop hurting. \n \n\nDELAMAR – H002934 \n \n11 \n On cross-examination, Claimant acknowledged that her left hip problems go back \nto 2016.  During that period, she saw physicians including Drs. Charity Loudermilk and \nBryan  McDonnell.    But  despite the  fact that  she  treated  with  them  for  her  hip  in  2018 \nand  2019  for  arthritic  hip  pain,  she  hastened  to  add  that  her  hip  issues  were  not \ncontinual. \n Asked  about  the  statement  in  her  Form  AR-N  that  is  in  evidence  and  which \nreflects that “[s]he fell and landed on her right arm and injured her back,” Claimant \nexplained:  “[t]hat’s what the doctor said at first, but then my hip started hurting me . . . .”  \nNotwithstanding the description in the form, Claimant elaborated:  “[s]o when I landed, it \njarred my whole body . . . I’m hitting concrete pavement.”  Per Claimant, her hip was not \nbothering her prior to the fall, and did not hurt immediately after the wheelchair incident. \n She saw Dr. Adam Smith in December 2020, and he described her as having a \nhistory  of  left  hip  osteoarthritis.    He  was  the  one  who  recommended  that  the  hip  be \nreplaced.  Again, she testified that this surgery improved her condition. \n The medical records in evidence reflect that when Claimant presented to CHI St. \nVincent Hot Springs on the day after her work-related fall, May 12, 2020, she stated that \nshe “[f]ell and landed on her right arm and injured her back.”  Claimant described having \npain  in  her  right  shoulder  and  pain  in  her  lower  back  that  was  extending  up  into  her \nneck. \n For nearly three months after this initial treatment, Claimant made no mention of \nher  left  hip.    This  changed  on  August  6,  2020,  when  she  went  to  OrthoArkansas.   On \nthat date, per the report, [s]he [was] complaining of low back pain with radiation into her \n\nDELAMAR – H002934 \n \n12 \nleft hip.”  After studying her x-rays, Dr. Phillip Smith wrote that Claimant “has a very \narthritic appearing hip joint on the left side.”  Returning to OrthoArkansas on September \n3, 2020, and seeing Dr. Adam Smith, Claimant told him that she “has had worsening left \nhip pain since” her May 2020 fall at work.  The record continues: \nShe  is  [sic]  never  had  an  injection  in  her  hip.    She  did  see  Dr.  Breathitt \ninitially  who  got  an  MRI  of  her  hip  and  back  and  recommend[ed]  she \nfollow-up with me.  She denies having pain in her hip before her fall.” \n \nDr. Smith added: \nX-rays  of  her  left  hip  show  loss  of  the  joint  space,  subchondral  sclerosis \nand osteophyte formation. \n \nAssessment:  Left hip osteoarthritis \n \n On September 3, 2020, Claimant underwent a steroid injection of her hip by Dr. \nAdam Smith.  He assessed her on September 10, 2020, as having trochanteric bursitis \nof the left hip with IT band syndrome in addition to her osteoarthritis.  The report of her \nDecember 17, 2020, visit to him reads in pertinent part: \nOsteoarthritis of hip – Patient is a 63-year-old female with a history of left \nhip  osteoarthritis  returns  today  for  follow[-up].    I  had  previously  given  her \nleft hip ultrasound injection which did provide her with some relief but it did \nnot last.  She returns today stating that she has continued pain in her left \nhip that is made worse with any type of prolonged walking or standing as \nwell  as  getting  in  and  [out]  of  a  chair  or  going  up  and  down  stairs.    Is \nimproved with rest.  She states the longer she is on the more it hurts.  She \nhas  failed  conservative  management  to  date  and  is  read  to  proceed  to \nfurther options. \n \n. . . \n \nAssessment:  End-stage osteoarthritis left hip. \n \nPlan:    She  has  failed  conservative  management  and  wants  to  pursue \noperative  intervention.    We  discussed  the  risks  and  benefits  of  surgery \n\nDELAMAR – H002934 \n \n13 \ntoday  in  great  detail.    She  understands  the  risks  and  wants  to  proceed.  \nGet her set up for a left total hip at her convenience. \n \nDuring  another  appointment  at  OrthoArkansas  on  May  14,  2021,  she  related  that  she \nwas  returning  to  the  clinic  to  have  her hip surgery  rescheduled  under  her  primary \ninsurance  because  Respondents  had  declined  to  cover  it.  X-rays  again  showed  end-\nstage  osteoarthritis  with  complete  loss  of  joint  space,  along  with  subchondral  sclerosis \nand osteophyte formation. \n On May 26, 2021, Claimant underwent a total left hip replacement.  This is only \ndocumented  from  reports  of  hip  x-rays  taken  during  surgery;  the  surgical  report  itself, \nassuming such exists, is not a part of the evidentiary record.  In a follow-up appointment \nwith Dr. Adam Smith on June 10, 2021, Claimant reported that she was doing well with \nrespect to her hip.  When she saw him again on July 9, 2021, Claimant complained of “a \nfair amount of pain” that was radiating from her left buttock down into her foot.  The \ndoctor did not ascribe the pain to her hip, but instead to her back. \n On  September  10,  2021,  Claimant  told  Dr.  Adam  Smith  that  she  was  “doing \nmuch better with regards to her hip.”  The doctor on September 13, 2021, added the \nfollowing Addendum to the report of that visit: \nPatient  is  a  Worker’s  Comp.  patient  and  sustained  an  injury  which \nprecipitated  her  symptoms  in  May  2020.    She  states  that  she  was  not \nhaving symptoms prior to her fall.  Given her x-rays that were performed in \nAugust  2020  she  does  have  arthritis  in  those  x-rays.    It  is  highly  unlikely \nthat  the  arthritis  developed  with  the  fall.    What  is  more  likely  the case  is \nthat  she  had  pre-existing  arthritis  that  was  asymptomatic  or  minimally \nsymptomatic  that  was  exacerbated  by  the  fall  worsening  of  pre-existing \ncondition. \n \n\nDELAMAR – H002934 \n \n14 \nWhen Claimant went back to Dr. Adam Smith on June 10, 2022, she told him that her \nhip was still “doing very well.”  But because she  was  presenting  with  pain  along  her \ntrochanteric   bursa   and   distally along   her   IT   band,   he   assessed   her   as   having \ntrochanteric  bursitis,  gave  her  an  injection  into  the  bursa,  and  sent  her  to  physical \ntherapy “to stretch out her IT band.”  He also prescribed Voltaren. \n Dr. Adam Smith has opined that Claimant had pre-existing arthritis in her left hip.  \nHer medical records that are in evidence reflect that prior to the stipulated work-related \nfall  that  she  suffered on  May  11, 2020,  she had  presented  on  two  occasions—in  2016 \nand  2018—with  left  hip  pain.    The  Commission  is  authorized  to  accept  or  reject  a \nmedical  opinion  and  is  authorized  to  determine  its  medical  soundness  and  probative \nvalue.  Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); Green \nBay  Packing  v.  Bartlett,  67  Ark.  App.  332,  999  S.W.2d  692  (1999).    Based  on  the \nevidence, I credit his opinion on this point. \n An employer under the Arkansas Workers’ Compensation Act takes an employee \nas  the  employer  finds  her.    Employment  circumstances  that  aggravate  pre-existing \nconditions  are  compensable.   Nashville  Livestock  Comm.  v.  Cox,  302  Ark.  69,  787 \nS.W.2d 64 (1990).  A pre-existing infirmity does not disqualify a claim if the employment \naggravated,  accelerated,  or  combined  with  the  infirmity  to  produce  the  disability  for \nwhich  compensation  is  sought.   St.  Vincent  Med.  Ctr.  v.  Brown,  53  Ark.  App.  30,  917 \nS.W.2d   550   (1996).    However, “[a]n   aggravation,   being   a   new   injury   with   an \nindependent cause, must meet the requirements for a compensable injury.”  Crudup v. \nRegal  Ware,  Inc.,  341  Ark.  804,  20  S.W.3d  900  (2000); Ford  v.  Chemipulp  Process, \n\nDELAMAR – H002934 \n \n15 \nInc.,  63  Ark.  App.  260,  977  S.W.2d  5  (1998).    This  includes  the  prerequisite  that  the \nalleged  injury  be  shown  by  medical  evidence  supported  by  objective  findings.   See \nHeritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003). \n The  medical  evidence,  as  recounted  above,  is  devoid  of  objective  findings  of  a \nhip  injury.    The  only  objective  findings  are  strictly  degenerative.    For  that  reason, \nClaimant  cannot  show  that  she  suffered  a  compensable  left  hip  injury.    Consequently, \nthis portion of her claim must fail. \nB. Reasonable and Necessary Medical Treatment \n Introduction.    Claimant  has  argued  that  she  is  entitled  to  reasonable  and \nnecessary  treatment  of  her  alleged  left  hip  injury,  to  include  the  total  hip  replacement \nthat she has undergone. \n Standards.    Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \n\nDELAMAR – H002934 \n \n16 \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.   Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that \nshe  sustained  a  compensable  left  hip  injury.    Consequently,  she cannot  establish  her \nentitlement to reasonable and necessary treatment of it—including her hip replacement \nsurgery. \nC. Temporary Total Disability \n Introduction.  As part of this action, Claimant is seeking additional temporary total \ndisability benefits from May 25, 2021, through July 6, 2022.  Respondents have denied \nresponsibility  for  this  period,  and  have  asserted  that  they  are  entitled  to  an  offset  or  a \ncredit for  a  period  during  which  they allegedly incorrectly  paid  these  benefits  to her:  \nfrom October 31, 2022, to November 29, 2022. \n\nDELAMAR – H002934 \n \n17 \n Standards.   The stipulated compensable injuries to Claimant’s back and right \nshoulder  are  unscheduled  ones.    See Ark.  Code  Ann.  §  11-9-521  (Repl.  2012).    An \nemployee  who  suffers  a  compensable  unscheduled  injury  is  entitled  to  temporary  total \ndisability compensation for that period within the healing period in which he has suffered \na  total  incapacity  to  earn  wages.   Ark.  State  Hwy.  &  Transp.  Dept.  v.  Breshears,  272 \nArk. 244, 613 S.W.2d 392 (1981).  As for the stipulated compensable injury to her right \nupper  extremity,  it  is  scheduled.   Ark.  Code  Ann.  §  11-9-521(a)(1)-(2).   An  employee \nwho has  sustained a  compensable  scheduled  injury is  entitled  to  temporary  total \ndisability compensation “during the healing period or until the employee returns to work, \nwhichever occurs first . . . .”  Id. § 11-9-521(a).  See Wheeler Const. Co. v. Armstrong, \n73  Ark.  App.  146,  41 S.W.3d  822  (2001).   Also,  a  claimant must demonstrate  that  the \ndisability lasted more than seven days.  Ark. Code Ann. § 11-9-501(a)(1). \n Discussion.   During  her  testimony,  Claimant  related  that as  a  result  of  her \nstipulated  compensable  right  shoulder  injury,  she  underwent  two  surgeries  on  it.    Both \nwere  covered  by  Respondents.   The  medical  records  reflect  that  the  first  operation, \nperformed  by  Dr.  Phillip  Smith, took  place  on  October  21,  2020.    On  that  date,  she \nunderwent  a  right  rotator  cuff  repair,  along  with  a  subacromial  decompression  with \nacromioplasty.  Her pre and post-operative diagnoses were (1) right rotator cuff tear and \n(2)   impingement.    Dr.   Smith   found   that   Claimant   reached maximum   medical \nimprovement (“MMI”) with respect to her shoulder on May 3, 2021.  Thereafter, he sent \nher  to  be  evaluated  for  an  impairment  rating by  Functional  Testing  Centers,  Inc.  \n\nDELAMAR – H002934 \n \n18 \nThereafter,  on  May  24,  2021,  Dr.  Smith  reiterated  the  aforementioned  MMI  date  and \nreleased her with an impairment rating of six percent (6%) to the body as a whole. \n Prompted  by  the  above,  Respondents  ceased  payment  of  temporary  total \ndisability  benefits  on  May  24,  2021.    The  following  exchange  took  place  during \nClaimant’s direct examination: \nQ. Now between May 25\nth\n of 2021, and July the 7\nth\n of 2022, when you \nhad that shoulder surgery, did you work during that period of time? \n \nA. No. \n \nQ. Okay.  Were you able to work during that— \n \nA. No. \n \nQ. —period of time?  Okay.  You took a retirement, did you not? \n \nA. Yes, sir. \n \nQ. If  I’m  correct—if  my  notes  are  correct,  it  would  be  somewhere \naround July— \n \nA. Yes, sir. \n \nQ. Maybe July the 11\nth\n— \n \nA. Yes, sir. \n \nQ. —of 2020, that you took a retirement? \n \nA. Yes, sir. \n \nQ. Okay.  Now why was it that you took a retirement in July of 2020? \n \nA. Because I felt I wasn’t gonna be able to continue to do my job \nbecause I was in so much pain. \n \nQ. Okay. \n \n\nDELAMAR – H002934 \n \n19 \nA. My shoulder hurt me so bad that it was like I was having to stay on \nmeds  and  stuff  just  to,  you  know,  be  able  to  function  on  a  daily \nbasis. \n \nQ. Okay. \n \nA. I know I couldn’t work like that. \n \nQ. I think that your first surgery was October the 21\nst\n of 2020, to your \nright shoulder. \n \nA. Yes, sir. \n \nQ. And then you later had this second surgery— \n \nA. Yes. \n \nQ. —in July of ’22. \n \nA. Yes, sir. \n \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of  the  testimony  that  it  deems  worthy  of  belief.   Id.   After due  consideration, I \ncredit Claimant’s testimony on this point. \n At the same time, per Poulan, supra, I cannot and do not credit the opinion of Dr. \nPhillip  Smith  that  Claimant reached  MMI  concerning  her  stipulated  compensable  right \n\nDELAMAR – H002934 \n \n20 \nshoulder injury as of May 3, 2021—or even as of May 24, 2021, when he repeated this \nfinding and assigned her a permanent impairment rating for her shoulder.  The reason \nfor  this  is  that,  as  the  medical  evidence  thereafter  readily  bears  out,  his  opinion  was \ngiven in error and based upon an incomplete picture of her shoulder condition. \n On May 3, 2021—which, again, is the date that Dr. Phillip Smith found Claimant \nto  be  at  MMI—she was still “complaining of some pain” in her right shoulder despite \nbeing “six months out” from her first shoulder surgery.  When  she  returned  to  him  on \nApril 22, 2022, she presented “with continued pain in the right shoulder.”  The doctor \nnoted that “[t]here has been no new trauma.”  The report continues: \nPhysical  Exam:    Right  shoulder  shows  healed  portals.    She  does  have \nsome  pain  with  overhead  forward  flexion.    She  also  has  pain  against \nrotator cuff resistance.  She is neurovascularly intact. \n \n. . . \n \nAssessment:      Previous   right   rotator   cuff   repair   with   continued   right \nshoulder pain[.] \n \nPlan:    I  am  going  to  order  an  MRI  of  her  right  shoulder  due  to  her \ncontinued pain after rotator cuff repair.  She can continue to work without \nrestriction,\n3\n I will see her back after her MRI of her right shoulder. \n \nDr.  Phillip  Smith  saw  Claimant  again  on  July  11,  2022.    The  report  of  that  visit  shows \nthat the repeat MRI “showed a healed rotator cuff but some evidence of inflammation.”  \nThe doctor wrote: \nShe has had continued pain in her right shoulder following her repair.  She \ndid not respond to therapy and an injection.  At this point we will plan for \n \n \n3\nIn  light  of  what  is  discovered  during  her  second  surgery—see  infra—I  likewise \ndo not credit this under Poulan, supra. \n\nDELAMAR – H002934 \n \n21 \nrepeat  right  shoulder  arthroscopy  with  evaluation  of  a  rotator  cuff  repair \nwith lysis of adhesions. \n \n Dr.  Smith  performed  the  second  shoulder  surgery  on  July  27,  2022.    Per  his \nreport,  which  is  in  evidence,  he  discovered  that  Claimant  had  not  only  developed \nsubdeltoid  adhesions,  but  that  there  were  “multiple  large  cartilaginous  loose  bodies \nthroughout the shoulder.”  An expanded incision had to be made to extract these “loose \nbodies.”  A shaver was employed to remove the smaller ones. \n Again,  in  order  to  be  entitled  to  additional  temporary  total  disability  benefits, \nClaimant  must  show,  inter  alia, that  during  the  period  in  question,  she  was  still  in  her \nhealing  period.    The  healing  period  ends  when  the  underlying  condition  causing  the \ndisability  has  become  stable  and  nothing  further  in  the  way  of  treatment  will  improve \nthat  condition.   Mad  Butcher,  Inc.  v.  Parker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  \nThe medical evidence recounted above clearly shows that she did not reach the end of \nthis healing period as of May 3, 2021.  Instead, she remained in that period all the way \nuntil  she  recovered  from  her  second  shoulder  surgery (October  31,  2022—see infra).  \nRespondents  assumed  responsibility  for  this  second  operation  and  resumed  the \npayment of temporary total disability benefits as of July 27, 2022.  During the period at \nissue  here  when  benefits  were  suspended  or  ended—May  4,  2021,  through  July  26, \n2022—Claimant  was  not  only  still  in  her  healing  period,  but  as  her credible testimony \noutlined above amply demonstrates, she was suffering a total incapacity to earn wages.  \nConsequently,  she  has  proven  by  a  preponderance  of  the  evidence  her  entitlement  to \nadditional benefits of this type from May 4, 2021, through July 26, 2022. \n\nDELAMAR – H002934 \n \n22 \n At  the  same  time, Respondents  have  alleged  that  they  should  be  entitled  to  an \noffset or credit for temporary total disability benefits that they claim were incorrectly paid \nfor the period of October 31, 2022, through November 29, 2022.  Per the payout history, \ncontained in Respondents’ Exhibit 2, they did continued to pay her these benefits during \nthat time frame.  But as they correctly point out, Dr. Phillip Smith found Claimant to be at \nMMI concerning her shoulder as of October 31, 2022, and released her to full duty as of \nthat same date.  After consideration of the evidence, I credit the doctor’s opinion on this \nparticular  matter  under Poulan, supra,  and  find  that  Claimant  reached  the  end  of  her \nhealing  period  on  October  31,  2022.    For  that  reason, it  has  been established that \nClaimant  was  not  entitled  to  temporary  total  disability  benefits  from  October  31,  2022, \nthrough November 29, 2022.  That said, the evidence preponderates that Respondents \nare  entitled  to  a  dollar-for-dollar  offset  against  current  and  future  liability  for  indemnity \nbenefits  concerning  this  overpayment.  See  Maulding  v.  Price’s  Utility  Contrs.,  Inc., \n2009  Ark.  App. 776, 358 S.W.3d  915, pet. reh’g denied,  2010  Ark.  App. 51,  2010  Ark. \nApp. LEXIS 47. \nD. Attorney’s Fee \n Claimant has asserted that she is entitled to a controverted attorney’s fee in this \nmatter.  One of the purposes of the attorney's fee statute is to put the economic burden \nof litigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. \n193, 745 S.W.2d 647 (1998).  In this case, the fee would be twenty-five percent (25%) \nof any indemnity benefits awarded herein, one-half of which would be paid by Claimant \nand one-half to be paid by Respondents in accordance with See Ark. Code Ann. § 11-9-\n\nDELAMAR – H002934 \n \n23 \n715  (Repl.  2012).   See Death  &  Permanent  Total  Disability  Trust  Fund  v.  Brewer,  76 \nArk. App. 348, 65 S.W.3d 463 (2002). \n As  the  parties  have  stipulated, Respondents have  controverted  Claimant’s \nentitlement  to the additional  indemnity  benefits awarded  above.    Thus,  the  evidence \npreponderates  that  his counsel,  the  Hon. Gary  Davis,  is  entitled  to  the  fee  as  set  out \nabove. \nCONCLUSION AND AWARD \n Respondents are directed to furnish/pay benefits in accordance with the findings \nof fact and conclusions of law set forth above.  All accrued sums shall be paid in a lump \nsum  without  discount,  and  this  award  shall  earn  interest  at  the  legal  rate  until  paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a twenty-five percent  (25%)  attorney’s  fee \nawarded herein, one-half of which is to be paid by Claimant and one-half to be paid by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Honorable O. Milton Fine II \n       Chief Administrative Law Judge","textLength":37845,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H002934 VANESSA DELAMAR, EMPLOYEE CLAIMANT ARKADEPHIA HUMAN DEV. CTR., EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIV., CARRIER/THIRD-PARTY ADM’R RESPONDENT OPINION FILED APRIL 16, 2025 Hearing before Administrative Law Judge O. Milton Fine II on January 29, ...","outcome":"granted","outcomeKeywords":["granted:4","denied:1"],"injuryKeywords":["back","shoulder","hip","neck","rotator cuff"],"fetchedAt":"2026-05-19T22:41:40.823Z"},{"id":"alj-H402843-2025-04-16","awccNumber":"H402843","decisionDate":"2025-04-16","decisionYear":2025,"opinionType":"alj","claimantName":"Brenda Powell","employerName":"Amazon.Com, Inc","title":"POWELL VS. AMAZON.COM, INC. AWCC# H402843 April 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/POWELL_BRENDA_H402843_20250416.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"POWELL_BRENDA_H402843_20250416.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H402843 \n \nBRENDA K. POWELL,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nAMAZON.COM, INC.,  \nEMPLOYER                                                                                                         RESPONDENT  \n                                                                                     \nAMERICAN ZURICH INS. CO./ \nSEDGWICK CLAIMS MG’T SERVICES, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \nOPINION FILED APRIL 16, 2025, GRANTING RESPONDENTS’ MOTION TO \nDISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Wednesday, April 16, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Brenda K. Powell, pro se, of Little Rock, Pulaski County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable David C. Jones, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Wednesday, April 16, 2025, to determine whether this claim \nshould be dismissed without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (202 Lexis \nReplacement) and Commission Rule 099.13 (2025 Lexis Replacement). \n        The  claimant  initially  was  represented  by  counsel,  Mr.  Mark  Peoples  of  The  Peoples  Law \nFirm of Little Rock, in this claim. By unanimous Full Commission order issued and filed on August \n7,  2024,  the  Commission  granted  the  claimant’s  attorney’s  motion  to  be dismissed  as  the \nclaimant’s attorney of record. (Respondents’ Exhibit 1 at 15). \n\nBrenda K. Powell, AWCC No. H402843 \n2 \n \n       Thereafter,  on February  6,  2025, the respondents filed with  the  Commission a  motion  to \ndismiss this claim with or without prejudice (MTD) and brief in support thereof. Pursuant to the \napplicable law the Commission provided the claimant due and legal notice of both the respondents’ \nMTD, as well as notice of the subject hearing. The claimant failed and/or refused to respond to the \nrespondents’ motion in any way, and she failed and/or refused to appear at the subject hearing. \n(RX1 at 18-26; 1-30). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287 (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nclaimant’s voluntary MTD. Rather than recite a detailed analysis of the record, suffice it to say the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has neither taken any steps to pursue her claim, or to request a hearing on her \nclaim within the last six (6) months. \n        Therefore, after a thorough consideration of the issues at bar, the applicable law as applied to \nthe facts of this claim, and other relevant matters of record including the representations of credible \ncounsel, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having received due  and  legal  notice  of the respondents’ MTD with or without \nprejudice and brief in support thereof filed with the Commission on February 6, 2025, as \nwell as notice of the subject hearing date, time, and place, the claimant failed and/or refused \n\nBrenda K. Powell, AWCC No. H402843 \n3 \n \nto respond to the respondents’ MTD in any way, and she failed and/or refused to appear at \nthe subject hearing.  \n \n3. The claimant has failed and/or refused to either prosecute her claim, or to request a hearing \non her claim within the last six (6) months. \n \n4. Therefore,  the unrebutted preponderance  of  the  evidence  compels the  decision the \nrespondents’ MTD with or without prejudice filed February 6, 2025, should be and hereby \nis GRANTED; and this claim hereby is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nBrenda K. Powell, AWCC No. H402843 \n4","textLength":5317,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402843 BRENDA K. POWELL, EMPLOYEE CLAIMANT AMAZON.COM, INC., EMPLOYER RESPONDENT AMERICAN ZURICH INS. CO./ SEDGWICK CLAIMS MG’T SERVICES, INC. CARRIER/TPA RESPONDENT OPINION FILED APRIL 16, 2025, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:41:42.894Z"},{"id":"full_commission-G905176-2025-04-09","awccNumber":"G905176","decisionDate":"2025-04-09","decisionYear":2025,"opinionType":"full_commission","claimantName":"Twanna Carter","employerName":"Arkansas Department Of Community Corrections","title":"CARTER VS. ARKANSAS DEPARTMENT OF COMMUNITY CORRECTIONS AWCC# G905176 April 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Carter_Twanna_G905176_20250409.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Carter_Twanna_G905176_20250409.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G905176 \n \nTWANNA CARTER, \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF COMMUNITY \nCORRECTIONS, EMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 9, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant is Pro Se. \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe claimant, pro se, appeals an administrative law judge’s opinion \nfiled January 14, 2025.  The administrative law judge found that the \nclaimant failed to prove she was entitled to additional benefits.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant did not prove she was entitled to additional medical treatment or \nadditional temporary total disability benefits.     \nI.  HISTORY \n Twanna Carter, now age 43, agreed that she became employed with \nthe respondents, Arkansas Division of Community Corrections, in \n\nCARTER - G905176  2\n  \n \n \napproximately 2008.  The parties stipulated that the employment \nrelationship existed at all pertinent times, including August 1, 2019.  An \nadministrative law judge examined the pro se claimant: \n  Q.  What happened that day? \nA.  That day we was told that we was gonna have to do \nactivity on one of our instructors, which was taking down the \ninstructor.  And we all – it was, probably, approximately, about \nsix – six of us, I think, probably more.  And we had to go into a \nroom, where he was in there acting out or whatever and we \nhad to break him down.  And each of us had a position on \nwhat we supposed to do....And it just went wrong....and when \nwe fell, my leg went one way and my body went another and \nwe just tumbled and they fell on my leg and it just went from \nthere.   \n \n The parties stipulated that the claimant “suffered an accepted \ncompensable injury to her right lower extremity” on August 1, 2019.  The \nclaimant testified, “I tore my ACL and I fractured my MCL and I mean, I \nnever did return back to work.”  The parties stipulated that the respondents \n“provided some benefits associated with the claimant’s accepted injury.”   \n Dr. Carlos Roman noted on March 8, 2021: \nThe patient is a 39-year-old female.  She worked for the \nArkansas Department of Corrections and suffered injury to her \nright knee during a take-down exercise.  She ultimately \nunderwent anterior cruciate ligament repair by Dr. Handloser \nin February of 2020.   \nShe continues to complain of pain in the right knee.  She \nunderwent post-surgical MRI in October that showed good \nrepair of the ligament and an intact graft.  Dr. Azar, orthopedic \nsurgeon in Memphis, could find no rationale for further knee \npain.  A Functional Capacity Exam was done and \ndemonstrated an unreliable effort.  She was placed at \n\nCARTER - G905176  3\n  \n \n \nsedentary duty.  She was ultimately let go from that job.  She \nsays she couldn’t even do that.   \nShe comes in today for follow-up.  We have tried her on \nVoltaren gel.  We performed a right knee injection.  These \nhave not resolved the issue.  She still complains of pain in the \nknee.... \nAt this point in time, I would put her at maximal medical \nimprovement as it pertains to her knee injury.  There are no \nfurther injections, procedures, or medications required.  She is \none year out from the injury.  Physical Therapy has been \nexhausted and has been done appropriately.  I would be \nhappy to see her back under regular insurance if needed.   \nAs it pertains to the right knee injury, no further treatment is \nnecessary.  We will provide one last prescription.  No follow \nup is needed.  As far as her work capacity, given the \nunreliable effort, obviously she could work at a higher level \nthan sedentary given the results of the FCE.  \n \n The record indicates that the claimant participated in a Functional \nCapacity Evaluation on March 23, 2021:  “Ms. Carter completed functional \ntesting on this date with unreliable results.  Overall, Ms. Carter \ndemonstrated the ability to perform work in at least the SEDENTARY \nclassification of work[.]”    \n Dr. Frederick M. Azar reported on May 5, 2021: \nPatient is now 15 months out from allograft ACL \nreconstruction on the right with partial lateral meniscectomy \nand chondral debridement.... \nPLAN:  She is at MMI.  At this point she wants to talk about \nsome permanent restrictions.  She states she has difficulty \nwith prolonged walking, prolonged sitting, and prolonged \nstanding and also kneeling.  This is mainly a pain issue for \nher.  I am going to release her from my care at this time.  She \nwants to have these restrictions going forward.  I am going to \nrelease her from my care at this time and render an \nimpairment based on the AMA guides. \n \n\nCARTER - G905176  4\n  \n \n \n On May 18, 2021, Dr. Azar assigned the claimant “a 4% Whole \nPerson, 9% Lower Extremity impairment as a result of this work related \ninjury.”  The claimant’s testimony indicated that the respondents paid the \npermanent anatomical impairment rating assessed by Dr. Azar.     \nA pre-hearing order was filed on July 17, 2024.  The pro se claimant \ncontended, “I got declared being permanent disable (sic) from my injury on \njob.  I never got compensated for my future medical & disability benefits.”  \nThe respondents contended, “The claimant has requested a hearing \nseeking additional benefits.  The respondents contend that appropriate \nbenefits have been paid to the claimant.  The Respondents contend that all \nappropriate benefits owed to claimant as a result of her compensable injury \nhave been paid to date.  The last payment of compensation for this claim \nappears to have been May 5, 2021 when the claimant was treated at \nCampbell Clinic, PC.  The bill for this medical treatment was paid by \nrespondents on March 29, 2022.  There have been no other claim related \nexpenses or treatment rendered for this claim since that time.  The \nrespondents closed this file on July 12, 2022 and a Form 4 was filed with \nthe AWCC on March 22, 2023.  The respondents contend that this claim for \nadditional benefits was not timely filed as required by Ark. Code Ann. §11-\n9-702(b)(1) and is therefore barred by operation of the statute.  The \n\nCARTER - G905176  5\n  \n \n \nRespondents reserve the right to raise additional contentions, or to modify \nthose stated herein, pending completion of discovery.” \n The parties agreed to litigate the following issues: \n1. Whether the claimant is entitled to additional benefits, \nincluding coverage of future medical treatment, \nreimbursement for past medical treatment, and indemnity \nbenefits.   \n2. Whether any claims for additional benefits are barred by \nthe statute of limitations.  All other issues are reserved.   \n \n   After a hearing, an administrative law judge filed an opinion on \nJanuary 14, 2025.  The administrative law judge found that the claimant \nfailed to prove she was entitled to additional benefits.  The administrative \nlaw judge therefore denied and dismissed the claim.  The claimant appeals \nto the Full Commission. \nII.  ADJUDICATION \nA.  Medical Treatment \nThe employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \n\nCARTER - G905176  6\n  \n \n \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 70 (1984).   \nAn administrative law judge found in the present matter, “3.  The \nclaimant failed to prove by a preponderance of the evidence that she is \nentitled to any additional benefits.”  The Full Commission finds that the \nclaimant did not prove additional medical treatment was reasonably \nnecessary.  As we have discussed, the parties stipulated that the claimant \nsustained a compensable injury on August 1, 2019.  The claimant’s \ntestimony indicated that she injured her right knee while participating in a \nwork-related training exercise.  The respondents provided benefits, and the \nrecord indicates that the claimant underwent surgery performed by Dr. \nAzar. \nDr. Roman examined the claimant on March 8, 2021.  Dr. Roman \ndescribed the reasonably necessary medical treatment the claimant had \nundergone, and he opined, “As it pertains to the knee injury, no further \ntreatment is necessary....No follow up is needed.\"  Dr. Azar reported on \nMay 5, 2021, \"I am going to release her from my care at this time.\"  It is \nwithin the Commission’s province to weigh all of the medical evidence and \nto determine what is most credible.  Minnesota Mining & Mfg. v. Baker, 337 \nArk. 94, 989 S.W.2d 151 (1999).  In the present matter, there is no medical \n\nCARTER - G905176  7\n  \n \n \nevidence of record contradicting the expert opinions of Dr. Roman and Dr. \nAzar that additional medical treatment is not reasonably necessary in \nconnection with the compensable injury sustained by the claimant on \nAugust 1, 2019.  There is no evidence demonstrating that the respondents \nfailed to provide past medical reasonably necessary medical treatment \nrendered to the claimant.  The Full Commission therefore finds that the \nclaimant did not prove additional medical treatment was reasonably \nnecessary.       \nB.  Temporary Disability \nThe standard for determining entitlement to temporary total disability \nbenefits differs depending upon whether the injury is a scheduled injury or \nan unscheduled injury.  Lawless v. AT&T Tech. Servs. Co., 2025 Ark. App. \n67, CV-24-289 (Ark. App. Feb. 05, 2025), citing City of Fort Smith v. Kaylor, \n2019 Ark. App. 517, 588 S.W.3d 803.  For scheduled injuries the injured \nemployee is to receive compensation for temporary total disability during \nthe healing period or until she returns to work, whichever occurs first.  Ark. \nCode Ann. §11-9-521(a)(Repl. 2012); Wheeler Constr. Co. v. Armstrong, 73 \nArk. App. 146, 41 S.W.3d 822 (2001).  An incapacity to earn wages is \npresumed when a claimant has sustained a compensable scheduled injury.  \nMinnesota Min. & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  The \nhealing period is that period for healing of the injury which continues until \n\nCARTER - G905176  8\n  \n \n \nthe employee is as far restored as the permanent character of the injury will \npermit.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 \n(1994).  Whether an employee’s healing period has ended is a question of \nfact for the Commission.  Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, \n901 S.W.2d 25 (1995). \nIn the present matter, the administrative law judge adjudicated \ntemporary total disability in accordance with the well-settled legal standard \nfor unscheduled injuries as held in Ark. State Hwy. Dept. v. Breshears, 272 \nArk. 244, 613 S.W.2d 392 (1981).  Because the claimant plainly sustained a \ncompensable scheduled injury, the administrative law erred as a matter of \nlaw.  Lawless, supra.  Nevertheless, it is the duty of the Full Commission to \nenter findings in accordance with the preponderance of the evidence and \nnot on whether there is substantial evidence to support an administrative \nlaw judge’s findings.  Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 \nS.W.2d 402 (1983). \nThe Full Commission finds in the present matter that the claimant did \nnot prove she was entitled to additional temporary total disability benefits.  \nThe claimant sustained a compensable scheduled injury on August 1, 2019.  \nThe claimant testified that she did not return to work following the \ncompensable injury, and it was stipulated that the respondents provided \nbenefits.  Dr. Roman opined on March 8, 2021, “I would put her at \n\nCARTER - G905176  9\n  \n \n \nmaximum medical improvement as it pertains to the knee injury.”  There \nwere no opinions of record contradicting Dr. Roman’s opinion, and the Full \nCommission finds that the claimant reached the end of the healing period \nno later than March 8, 2021.  See Nix, supra.  Dr. Azar assigned a \npermanent anatomical impairment rating on May 18, 2021, and the claimant \ntestified that the respondents paid permanent benefits in accordance with \nthe rating.  Permanent impairment is any functional or anatomical loss \nremaining after the healing period has ended [emphasis supplied].  See \nJohnson v. General Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994).  \nThe evidence in the present matter does not demonstrate that the claimant \nremained within a healing period or re-entered a healing period at any time \nafter March 8, 2021.  The claimant therefore did not prove that she was \nentitled to additional temporary total disability benefits. \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove additional medical treatment was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe claimant did not prove that she was entitled to additional temporary \ntotal disability benefits at any time following Dr. Roman’s assessment of \nmaximum medical improvement on March 8, 2021.  The Full Commission \ntherefore affirms as modified the opinion of the administrative law judge, \nand the present claim is respectfully denied and dismissed.  Because the \n\nCARTER - G905176  10\n  \n \n \nclaimant did not prove she was entitled to additional medical treatment or \ntemporary total disability benefits, we need not adjudicate whether the \napplicable statute of limitations bars the claim.     \nIT IS SO ORDERED.          \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":14348,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G905176 TWANNA CARTER, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF COMMUNITY CORRECTIONS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 9, 2025","outcome":"denied","outcomeKeywords":["affirmed:1","modified:1","dismissed:1","granted:4","denied:5"],"injuryKeywords":["back","knee"],"fetchedAt":"2026-05-19T22:29:44.374Z"},{"id":"full_commission-H303571-2025-04-09","awccNumber":"H303571","decisionDate":"2025-04-09","decisionYear":2025,"opinionType":"full_commission","claimantName":"Mary Ginther","employerName":"Emerson Electric Company","title":"GINTHER VS. EMERSON ELECTRIC COMPANY AWCC# H303571 April 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Ginther_Mary_H303571_20250409.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Ginther_Mary_H303571_20250409.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H303571 \n \nMARY M. GINTHER, \nEMPLOYEE \n \nCLAIMANT \nEMERSON ELECTRIC COMPANY,  \nEMPLOYER \n \nRESPONDENT \nOLD REPUBLIC INSURANCE COMPANY, \nMITCHELL, WILLIAMS, SELIG, GATES AND \nWOODYARD, P.L.L.C.,  \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 9, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE SCOTT HUNTER, JR., Attorney \nat Law, Jonesboro, Arkansas. \n \nRespondents represented by the HONORABLE RICHARD N. DODSON, \nAttorney at Law, Texarkana, Texas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nOctober 1, 2024.  The administrative law judge found that the claimant \nproved she sustained a compensable injury.  The administrative law judge \nawarded medical treatment and a period of temporary total disability \nbenefits.  After reviewing the entire record de novo, the Full Commission \nfinds that the claimant proved by a preponderance of the evidence that she \nsustained a compensable injury.  We find that the claimant proved she was \n\nGINTHER - H303571  2\n  \n \n \nentitled to temporary total disability benefits and reasonably necessary \nmedical treatment.     \nI.  HISTORY \n Mary Ginther, now age 35, testified that she became employed with \nthe respondents, Emerson Electric Company, in October 2022.  Ms. Ginther \ntestified that her job title was “Paint Technician.”  The claimant testified on \ndirect examination: \nQ.  And we’re here today because of an alleged job injury on \nFebruary 15, 2023, is that right? \nA.  Correct. \nQ.  And can you please explain to the Court what happened \non that day? \nA.  I was working on the Paint Line, and we were doing the \n1000 Jack Stand Challenge, which meant we have to have \n1000 jack stands completed within that month.  That means it \nhad to be welded, painted, packed, and shipped out within \nthat month.  So I was loading and unloading jack stands from \nthe line, and then I heard a loud popping in my right shoulder, \nand I had instant pain in my right shoulder down my right arm, \nmy forearm.... \nQ.  Were you working with anyone, by yourself when you \nwere working with these jack stands? \nA.  No.  Paige Jones was working on the line with me.... \nQ.  As far as after the injury, did you – did you let anybody, a \nsupervisor or anyone, know of the injury? \nA.  The Operations Manager, Annie Stigall.  She kind of was \nwalking up to the Paint Line kind of seeing I was holding my \narm, asked me what happened, and then she told me I \nneeded to go fill out an Incident Report.... \nQ.  Where did you go to fill out the Incident Report? \nA.  I went to Joe B.  I can’t pronounce his last name, so I \napologize.  He was the Safety Coordinator at that time, and he \ntold me to fill out an Incident Report, so I took the Report, \nfilled it out, I had Paige Jones look over it, and then she \n\nGINTHER - H303571  3\n  \n \n \nsigned it as a witness, and I gave it back to Joe that same \nday.   \n \n The claimant’s attorney examined Paige Jones: \n  Q.  And where do you work? \n  A.  Emerson Electric.... \n  Q.  Did you ever work directly with Mary Ginther? \n  A.  Yes, sir. \nQ.  Specifically on February 15, 2023, do you – do you \nremember if you were working in close proximity to Mary \nGinther? \nA.  Yes, sir....We were working side by side hanging jack \nstands while other people were pulling parts off the line.... \nQ.  On that date, do you remember anything happening to Ms. \nGinther’s physical condition while she was working? \nA.  It was a normal day at first, and then we were hanging the \njack stands, you heard a pop and her arm – and her arm went \nlimp.   \nQ.  So you were – y’all were sitting there working, you heard \nthis pop.  I guess it attracted your attention? \nA.  Yes.  I looked at her and I asked what had happened. \nQ.  What did she tell you? \nA.  She wasn’t sure as to what had fully happened at that \ncurrent moment.  She just knew that her arm got hurt.   \n \n According to the record, the claimant filled out an “Emerson \nProfessional Tools MFG Incident Report” on February 15, 2023.  The \nclaimant wrote that the event occurred at 9:00 a.m. on February 15, 2023 \nand that the location was “Ashflat Paint Line.”  The claimant reported that \nPaige Jones witnessed the incident.  The claimant described the injury as \n“Right bicept/shoulder (sic).”  The claimant wrote on the “Incident Report,” “I \nwas pulling parts off the line, heard my right shoulder pop and have had \npain in my forearm, bicep and shoulder since.” \n\nGINTHER - H303571  4\n  \n \n \n The claimant testified that she returned to restricted work for the \nrespondents following the specific incident, but that the condition of her right \narm progressively worsened.  The claimant agreed on cross-examination \nthat she continued to work for three months.    \n The claimant testified that the respondent-employer’s Safety \nCoordinator eventually directed her to treat with Dr. Terry Burns.  Dr. Burns \nexamined the claimant on May 5, 2023: \nPt complaining of Rt shoulder pain off and on since 2/15/23.  \nPt describes pain as burning, achy, constant, and worsens \nwith certain movements along with some weakness.  She \ndenies any specific fall or injury but does say she does a lot of \nrepetitive lifting at work....Has been using Biofreeze, \nmeloxicam/ibuprofen, applying wraps and ice/heat.   \n \n Alicia Justice testified that she was the respondent-employer’s “HR \nBusiness Partner.”  Ms. Justice testified that the respondents paid for the \nclaimant’s May 5, 2023 treatment with Dr. Burns.   \nThe claimant was treated at WRMC Orthopaedic and Sports \nMedicine Clinic on June 20, 2023.  An LPN assessed “(1)  Tear of distal \ntendon of biceps” and “(2)  Right shoulder pain....MRI reviewed with \npatient.  Discussed right elbow distal biceps repair since injury was in Feb \n2023 and has had no relief.  No shoulder derangement seen on MRI.”  The \nLPN also reported, “Today’s visit related to an accident/injury?:  Yes.  Date \nof Accident/Injury:  02/15/23 (LOADING PARTS ONTO LINE ABOVE \nHEAD, FELT/HEARD POPPING).” \n\nGINTHER - H303571  5\n  \n \n \n Dr. Dylan Carpenter’s diagnosis on June 20, 2023 was “Tear of distal \ntendon of biceps” and “Right shoulder pain.”  Dr. Carpenter performed a \n“Right distal biceps repair” on June 28, 2023.  The claimant testified that Dr. \nCarpenter arranged follow-up treatment after surgery, which treatment \nincluded physical therapy.  The claimant testified on direct examination: \nQ.  And it looks like you missed some work at Emerson due to \nthe surgery and the rehab, is that right? \nA.  Correct.   \nQ.  Approximately how long did you – did you miss work? \nA.  For the surgery, I missed three weeks.   \n \n Dr. Carpenter reported on July 18, 2023 that the claimant could \nreturn to work on July 24, 2023.  Dr. Carpenter assigned work limitations of \n“light duty, no lifting over 5 lbs, no over head work.”  The claimant testified \nthat she returned to work for the respondents.   \n A pre-hearing order was filed on May 7, 2024.  The claimant \ncontended, “The Claimant contends that her position is the paint line as a \npaint tech, but she is often required to do other positions within Emerson \nElectric that are outside of her job description.  On the date of injury the \nClaimant was being required to load and unload jack stands for the ‘1000 \njack challenge’ for the month.  As she was lifting a jack, she felt a pop and \nhad immediate shooting pain, reported the injury and filled out an incident \nreport.”   \n\nGINTHER - H303571  6\n  \n \n \n The parties stipulated that the respondents “have controverted this \nmatter in its entirety.”  The respondents contended, “The Employer \ncontroverts the claim.  The Claimant has not and cannot establish by a \npreponderance of the evidence that she sustained a compensable injury \nduring the course and scope of her employment.  The medical records \nobtained to date do not establish an injury within the course and scope of \nthe Claimant’s employment.” \n The parties agreed to litigate the following issues: \n1. Compensability of a right arm injury. \n2. Reasonable and necessary medical treatment. \n3. TTD from February 15, 2023, to a date to be determined. \n4. Attorney’s fees. \n5. All other issues are reserved, including PPD.   \n \nAfter a hearing, an administrative law judge filed an opinion on \nOctober 1, 2024.  The administrative law judge found that the claimant \nproved she sustained a compensable injury.  The administrative law judge \nawarded medical treatment and a period of temporary total disability \nbenefits.  The respondents appeal to the Full Commission.   \nII.  ADJUDICATION \nA.  Compensability \nArk. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent  \n \npart: \n \n(A)  “Compensable injury” means: \n \n\nGINTHER - H303571  7\n  \n \n \n(i)  An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in \nthe course of employment and which requires \nmedical services or results in disability or death.  An \ninjury is \"accidental” only if it is caused by a specific \nincident and is identifiable by time and place of \noccurrence[.]   \n \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).  The requirement that a compensable injury must be established by \nmedical evidence supported by objective findings applies only to the \nexistence and extent of the injury.  Stephens Truck Lines v. Millican, 58 Ark. \nApp. 275, 950 S.W.2d 472 (1997).   \nThe employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).   \nAn administrative law judge found in the present matter, “3.  The \nclaimant has satisfied the required burden of proof to show that she \nsustained a compensable, work-related injury to her right arm on February \n\nGINTHER - H303571  8\n  \n \n \n15, 2023.”  The Full Commission finds that the claimant proved by a \npreponderance of the evidence that she sustained a compensable injury. \nThe claimant testified that she became employed with the \nrespondents in October 2022.  The claimant’s job title for the respondent-\nemployer was “Paint Technician.”  The claimant testified that she was \nworking on the respondents’ Paint Line on February 15, 2023.  The \nclaimant testified that she heard a loud “popping” and pain while unloading \na jack stand.  A co-worker on February 15, 2023, Paige Jones, testified that \nshe heard a “pop” and that the claimant’s arm “went limp.”  The claimant \ntestified that the respondent-employer’s Safety Coordinator directed her to \nfill out an Incident Report, and the claimant indeed filled out such a Report \non February 15, 2023.  The Incident Report, which was included of record, \ncorroborated the claimant’s testimony at hearing.  The claimant wrote on \nthe Incident Report that she heard a “pop” in her right shoulder and that she \nimmediately began suffering from pain in her right forearm and bicep.  The \nrespondents state on appeal that the “noise on the production floor” \nprecluded the claimant or Paige Jones from hearing a “pop” on February \n15, 2023.  Nevertheless, the Full Commission finds that the probative \nevidence of record corroborates the testimony of the claimant and Paige \nJones.     \n\nGINTHER - H303571  9\n  \n \n \nAs we have discussed, the claimant testified that the respondent-\nemployer’s Safety Coordinator eventually directed her to seek treatment \nwith Dr. Terry Burns.  Dr. Burns saw the claimant on May 5, 2023 and \npurported to state that the claimant did not have a “specific fall or injury,” \nbut he also noted that the claimant had been suffering with pain since the \ndate of the work-related accidental injury, February 15, 2023.  A \nrepresentative of the respondent-employer, Alicia Justice, testified that the \nrespondents paid for the claimant’s May 5, 2023 visit with Dr. Burns.  The \nclaimant was examined at WRMC Orthopaedic and Sports Medicine Clinic \non June 20, 2023.  It was plainly noted at that time that the claimant had \nbeen suffering from pain since the accidental injury which occurred on \nFebruary 15, 2023.  Dr. Carpenter’s diagnosis on June 20, 2023 was “Tear \nof distal tendon of biceps” and “Right shoulder pain.”  Dr. Carpenter \nperformed a “Right distal biceps repair” on June 28, 2023.    \nIn workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  The Full \nCommission finds in the present matter that the claimant was a credible \n\nGINTHER - H303571  10\n  \n \n \nwitness.  The claimant proved by a preponderance of the evidence that she \nsustained a compensable injury in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(i)(Repl. 2012).  The claimant proved that she sustained an \naccidental injury causing physical harm to the body, that is, the claimant’s \nright arm.  The claimant proved that the injury arose out of and in the \ncourse of employment, required medical services, and resulted in disability.  \nThe injury was caused by a specific incident and was identifiable by time \nand place of occurrence on February 15, 2023.  The claimant also \nestablished a compensable injury by medical evidence supported by \nobjective findings, namely, Dr. Carpenter’s diagnosis of “Tear of distal \ntendon of biceps.”  The Full Commission finds that the “Tear of distal \ntendon of biceps” was causally related to the February 15, 2023 accidental \ninjury.   \nB.  Temporary Disability \nThe standard for determining entitlement to temporary total disability \nbenefits differs depending on whether the injury is a scheduled injury or an \nunscheduled injury.  Lawless v. AT&T Tech. Servs. Co., 2025 Ark. App. 67, \nCV-24-289 (Ark. App. Feb. 05, 2025), citing City of Fort Smith v. Kaylor, \n2019 Ark. App. 517, 588 S.W.3d 803.  The claimant in the present matter \nsustained a compensable scheduled injury to her right arm on February 15, \n2023.  For scheduled injuries the injured employee is to receive \n\nGINTHER - H303571  11\n  \n \n \ncompensation for temporary total disability during the healing period or until \nshe returns to work, whichever occurs first.  Ark. Code Ann. §11-9-\n521(a)(Repl. 2012); Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, \n41 S.W.3d 822 (2001).  An incapacity to earn wages is presumed when a \nclaimant has sustained a compensable scheduled injury.  Minnesota Min. & \nMfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  The healing period is \nthat period for healing of the injury which continues until the employee is as \nfar restored as the permanent character of the injury will permit.  Nix v. \nWilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  Whether an \nemployee’s healing period has ended is a question of fact for the \nCommission.  Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 \nS.W.2d 25 (1995).         \nAn administrative law judge found in the present matter, “5.  The \nclaimant has satisfied the required burden of proof to show that she is \nentitled to TTD for a period of three weeks, one day.”  The administrative \nlaw judge cited as authority a well-known case related to unscheduled \ninjuries, Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 \n(1981).  The administrative law judge therefore erred as a matter of law.  \nLawless, supra.  Nevertheless, the Full Commission has the duty to decide \nthe case de novo and we are not bound by the characterization of evidence \n\nGINTHER - H303571  12\n  \n \n \nadopted by an administrative law judge.  Tyson Foods, Inc. v. Watkins, 37 \nArk. App. 230, 792 S.W.2d 348 (1990).   \nThe Full Commission reiterates in the present matter that the \nclaimant sustained a compensable scheduled injury on February 15, 2023.  \nAlthough the evidence demonstrates that she entered a healing period \nbeginning February 15, 2023, the claimant initially returned to work for the \nrespondents following the compensable injury.  The medical records \nindicate that Dr. Carpenter performed a “Right distal biceps repair” on June \n28, 2023.  The claimant testified that she was unable to work beginning the \ndate of surgery.  The evidence therefore demonstrates that the claimant \nremained within a healing period and did not return to work beginning June \n28, 2023.  Dr. Carpenter noted on July 18, 2023 that the claimant could \nreturn to restricted work beginning July 24, 2023.  The claimant testified that \nshe returned to work for the respondents, where the claimant remains \ngainfully employed.  The claimant therefore proved that she was entitled to \ntemporary total disability benefits beginning June 28, 2023 until July 24, \n2023.  See Armstrong, supra. \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she sustained a compensable scheduled injury on \nFebruary 15, 2023.  The claimant proved that she was entitled to temporary \ntotal disability benefits beginning June 28, 2023 and continuing until July \n\nGINTHER - H303571  13\n  \n \n \n24, 2023.  The claimant proved that the medical treatment of record \nfollowing the compensable injury, including surgery performed by Dr. \nCarpenter, was reasonably necessary in connection with Ark. Code Ann. \n§11-9-508(a)(Repl. 2012).  The claimant’s attorney is entitled to fees for \nlegal services in accordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  \nFor prevailing on appeal to the Full Commission, the claimant’s attorney is \nentitled to an additional fee of five hundred dollars ($500), pursuant to Ark. \nCode Ann. §11-9-715(b)(Repl. 2012).   \nIT IS SO ORDERED.    \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \n I must respectfully dissent from the majority’s opinion.  In my de novo \nreview of the record, I find that the claimant has failed to meet her burden of \nproof she suffered a compensable injury to her right shoulder on February \n15, 2023. \nThe claimant alleged she was injured while working for the \nrespondent employer on February 15, 2023, “loading and unloading jack \n\nGINTHER - H303571  14\n  \n \n \nstands from the line and then I heard a loud popping in my right shoulder, \nand I had an instant pain in my right shoulder and down my right arm, my \nforearm.” The claimant completed an incident report, which was given to the \nsafety coordinator, and the claimant returned to work.  \nThree months later, the claimant was treated by Dr. Terry Burns for a \nworkers’ compensation evaluation.  Dr. Burns referred the claimant to Dr. \nDylan Carpenter, who performed surgery on the claimant’s right upper \nextremity.  The respondent’s carrier denied and controverted this claim.  \nAfter a hearing, an administrative law judge (ALJ) determined that \nthe claimant satisfied her burden of proving she suffered a compensable \ninjury to her right upper extremity.  \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  This requires a claimant establish by a preponderance of the \nevidence: (1) an injury arising out of and in the course of employment; (2) \nthat the injury caused internal or external physical harm to the body which \nrequired medical services or resulted in disability or death; (3) medical \nevidence supported by objective findings establishing an injury as defined in \nArk. Code Ann. §11-9-102(16) and; (4) that the injury was caused by a \n\nGINTHER - H303571  15\n  \n \n \nspecific incident identifiable by time and place of occurrence.  Ark. Code \nAnn. § 11-9-102(4)(A)(i). \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\" Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16).  \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness.  Id.  The \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony that it deems worthy of belief.  White v. Gregg \nAgricultural Enterprises, 72 Ark. App. 309, 37 S.W.3d 649 (2001). \nI find the claimant’s testimony is inconsistent and unreliable.  The \nclaimant has consistently provided misleading information regarding her \nclaim.  \nThe claimant and her coworker, Paige Jones, assert that they heard \nthe claimant’s shoulder pop while on the production line floor.  However, the \n\nGINTHER - H303571  16\n  \n \n \nemployer facility is a 220,000 square foot facility that is made up, \nessentially, of one large room.  During the claimant’s shift, there are \ntypically around 135 workers on the production floor.  \nThe paint line is loud for a variety of reasons: Compressors power \nthe paint guns; there are two nearby blasting cabinets where parts are \nsprayed with glass beads and other abrasive materials; workers operate \npower grinders; a large tumbler with abrasive beads shakes and vibrates \nparts to clean them; and there are at least five forklifts in the building which \nhonk and beep as they move.  Hearing protection is provided to the workers \nand in these areas, and employees have to raise their voices to be heard.  \nIt strains credulity to believe the claimant and Ms. Jones were able to \nhear a pop from the claimant’s arm or shoulder with the elevated noise in \nthe facility.  In addition, Ms. Jones was two and a half to three feet away \nfrom the claimant.  This is also evidenced by the claimant’s inconsistent \nstatements regarding the location of the pop.  \nAt the hearing, both the claimant and Ms. Jones testified they heard \nthe claimant’s shoulder pop while on the production floor. This was \nconfirmed in the incident report.  However, when she was deposed on \nDecember 4, 2023, the claimant testified she heard a pop near her elbow \nand the inside of her right arm.  In addition, the claimant did not report a \npopping sound to Dr. Terry Burns at her initial appointment on May 5, 2023. \n\nGINTHER - H303571  17\n  \n \n \nFor these reasons, it is clear that the claimant’s inconsistent testimony fails \nto meet her burden of proving that she suffered a specific incident injury on \nFebruary 15, 2023. \nFurther, the claimant has been inconsistent in her testimony about \nwhether she was working alone or with Ms. Jones at the time of her injury. \nIn her deposition, the claimant testified that Ms. Jones was “helping me load \nthe jack; however, at the hearing, claimant testified that she was loading the \njack by herself without assistance.  \nThese inconsistencies can also be found in the claimant’s medical \nrecords. The claimant admitted at the hearing that Dr. Burns’ initial report \nregarding the claimant’s injury stated her chief complaint was shoulder pain, \nand she denied any specific injury.  \nDuring her testimony at the hearing, the claimant never denied telling \nDr. Burns she did not have a specific injury.  In fact, at the hearing, the \nclaimant admitted that she told Dr. Burns that there was no specific incident \nand later changed her position after filing her Form C.   \nThe claimant also testified during her deposition she was off work for \nthree months following a bicep tendon repair surgery performed by Dr. \nCarpenter.  However, the claimant was returned to work three weeks and \none day after surgery.  \n\nGINTHER - H303571  18\n  \n \n \nIt is clear that the claimant’s own inconsistent and self-serving \nreporting and testimony regarding the nature of her injury renders her \nunable to satisfy her burden of proof.   \nAccordingly, the reasons set forth above, I must dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":25023,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303571 MARY M. GINTHER, EMPLOYEE CLAIMANT EMERSON ELECTRIC COMPANY, EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE COMPANY, MITCHELL, WILLIAMS, SELIG, GATES AND WOODYARD, P.L.L.C., INSURANCE CARRIER/TPA","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["shoulder","back","repetitive"],"fetchedAt":"2026-05-19T22:29:44.391Z"},{"id":"full_commission-G702582-2025-04-09","awccNumber":"G702582","decisionDate":"2025-04-09","decisionYear":2025,"opinionType":"full_commission","claimantName":"Nathan Tackett","employerName":"City Of Little Rock","title":"TACKETT VS. CITY OF LITTLE ROCK AWCC# G702582 April 09, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Tackett_Nathan_G702582_20250409.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Tackett_Nathan_G702582_20250409.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO. G702582 \n \nNATHAN TACKETT, \nEMPLOYEE \n \nCLAIMANT \nCITY OF LITTLE ROCK,  \nSELF -INSURED EMPLOYER \n \nRESPONDENT \nRISK MANAGEMENT RESOURCES, \nTPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 9, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \n \nDecision of Administrative Law Judge:  Reversed \n \n \n OPINION AND ORDER \nThe Claimant appeals an administrative law judge’s opinion filed \nOctober 8, 2024. The administrative law judge found that the Claimant \nfailed to prove by a preponderance of the evidence that he is entitled to \nwage-loss disability benefits as a result of his compensable right upper \nextremity injury resulting from an accident on March 17, 2017. After \nreviewing the entire record de novo, the Full Commission finds that \nClaimant is entitled to 14% wage-loss disability benefits as a result of his \ncompensable injury.  \n\nTACKETT – G702582  2\n  \n \n \nI. HISTORY \n The testimony of Nathan Tackett, now age 62, indicated that \nhe became employed with the Respondent, Little Rock Police \nDepartment on October 28,1985. Mr. Tackett testified that he had been \nemployed as a Shift Commander for the Downtown Patrol Division’s Day \nWatch for the Respondent in 2017. The parties stipulated that the \nemployee-employer relationship existed on March 17, 2017. The \nClaimant testified on direct examination:  \nQ. Now, tell us how you got hurt?   \nA. We were required to do annual 40 hours of in-service \ntraining every year and during the course of that training, \nwe did a scenario where we were simulating chasing a \nsuspect that had bailed out of a car on the parking lot there \nat the Training Division, an asphalt parking lot. Me and my \npartner and the suspect took off running one way, ran \naround a Conex Storage Container and my partner took off \nrunning behind him. I went the other way to try to cut him \noff on the other side of the storage container. Before I got \nto that end, the suspect came back around the corner. The \nofficer roll playing and fired blanks towards us. I spun \naround to engage the suspect and there was a fine sandy \nsubstance on the asphalt parking lot, like after a rain you \ncan, usually, see. And you know, there’s little dips where \nwater collects and things like that. When I was spinning \naround, being so graceful on my feet, I got my feet all \ntangled up, spun around and fell. I tried to brace my fall. I \npushed back and I saw a pick-up behind me and I tried to \n– thought if I could bounce off the hood with my back, and \nthen, just kind of slide down behind it, it wouldn’t hurt as \nbad. Bounced off the truck, and then hit the ground rolling \nand I don’t know how you can manage to land, literally, \n\nTACKETT – G702582  3\n  \n \n \nright on top of your shoulder but that’s what hit the \npavement first and that’s how the injury occurred. \n \nThe parties stipulated that the Claimant sustained a compensable \ninjury to his right shoulder on March 17, 2017. On May 10, 2017,  \naccording to the record, Claimant reported to Arkansas Specialty \nOrthopaedics where he underwent an x-ray and MRI of his right \nshoulder and was diagnosed with a full thickness right shoulder rotator \ncuff tear.  \nThe Claimant’s testimony indicated that he underwent surgery by \nDr. Kirk Reynolds on May 23, 2017 for his compensable right shoulder \ninjury.  \nThe record indicates that Claimant was seen by Dr. Kirk \nReynolds on January 31, 2018, who stated:  \nIt is my professional opinion that Mr. Tackett has \nreached maximum medical improvement. He may \nreturn to work full, unrestricted duty. No further \ntreatment or follow up is recommended.  \n \nDr. Kirk Reynolds then gave Claimant an impairment rating of “11% \ntotal, partial permanent impairment of the right shoulder. This [equates \nto] a 7% impairment of the whole person.”  \nAccording to the record, Claimant then followed up with Dr. Kirk \nReynolds on October 18, 2018. Dr. Reynolds noted:  \nThe patient reports pain in the right shoulder. He states \nhe is experiencing progressive numbness in the right \n\nTACKETT – G702582  4\n  \n \n \nfingers and notes difficulty with grip strength, \nspecifically with opening things and holding things. He \nadds the numbness affects the whole hand.  \n \nDr. Reynolds then referred the Claimant for an MRI scan of the right  \nshoulder as well as the cervical spine and an EMG/NCV to evaluate for  \ncentral versus peripheral nerve compression. Dr. Reynolds stated that  \nClaimant had not reached maximum medical improvement and the  \nClaimant was to remain on current restrictions at work with no change to  \nhis impairment rating.  \nAccording to the record, an MRI of the Claimant’s right shoulder \nand C-Spine was taken on October 18, 2018 and evaluated by Dr. Kirk \nReynolds:  \nMRI scan of the right shoulder performed on \n10/18/2018 was personally reviewed and demonstrates \na recurrent rotator cuff tear with the residual tendon \nstump at the level of the glenohumeral joint. There is \nsuperior escape of the humeral head but no significant \nabutment with the undersurface of the acromion. On \nthe T1 sagittal images, there is significant volume loss \nin the supraspinatus fossa with grade 2 atrophy on the \nsupraspinatus muscle belly and grade 3 4 atrophy of \nthe infraspinatus muscle belly. Teres minor and \nsubscapularis muscle bellies appear normal with no \natrophy. On the axial images, there are changes \nconsistent with a prior distal clavical excision and there \nis at least a partial thickness tear of the subscapularis \ntendon with some laxity of the tendon fibers.  \n \nMRI scan of the cervical spine performed on \n10/18/2018 was personally reviewed and demonstrates \n\nTACKETT – G702582  5\n  \n \n \nmultilevel disc desiccation and degenerative disc \ndisease but there is no significant neural foraminal \nnarrowing at any level.  \n \nOn October 22, 2018, Dr. Stephen Paulus performed an EMG on  \nClaimant which demonstrated significant right carpal tunnel syndrome \nbut no evidence of cervical radiculopathy. Based on the findings of the \nMRI and EMG, Dr. Reynolds found that Claimant required a reverse \nshoulder arthroplasty of the right shoulder within the next 3-5 years of \nhis visit in November of 2018. Dr. Reynolds specifically stated that the \nneed for the additional medical procedure was “100% related to his \noriginal work injury,” and that he would not recommend the reverse \nshoulder arthroplasty currently, as it would medically retire the Claimant. \nDr. Reynolds further stated that Claimant had not reached maximum \nmedical improvement.  \nClaimant followed up with Dr. Kirk Reynolds on May 6, 2019 for \nhis compensable right shoulder injury. The medical records in evidence \nindicate persistent weakness and pain in the Claimant’s right shoulder. \nDr. Reynolds found that the Claimant was not at maximum medical \nimprovement.  \nClaimant continued treatment with Dr. Kirk Reynolds through \n2019 without reaching maximum medical improvement. On November \n11, 2020, Claimant was again seen by Dr. Reynolds. Claimant reported \n\nTACKETT – G702582  6\n  \n \n \nto Dr. Reynolds that his symptoms were worsening. Claimant remained \non full, unrestricted duty at work but was again not found at maximum \nmedical improvement by Dr. Reynolds.  \nOn February 26, 2021, Claimant was seen by Dr. Kirk Reynolds. \nClaimant reported to Dr. Reynolds that he was “ready to consider \narthroplasty,” for his compensable right shoulder injury. Dr. Reynolds \nreported:  \nI explained the nature of the reverse shoulder \narthroplasty and how it will limit his ability to lift, push \nand pull with any weight heavier than approximately 15 \nto 20 pounds after surgery. This will be likely a lifetime \nrestriction. \n \nClaimant underwent right reverse total shoulder arthroplasty on \nJuly 8, 2021, as recommended and performed by Dr. Kirk Reynolds. \nFollowing the surgery, Claimant was placed on modified duty at work \nwith no use of the right upper extremity. On August 18, 2021, Dr. \nReynolds opined:  \nMr. Tackett remains on modified duty at work with the \nfollowing restrictions: Continue with no use of right \nupper extremity. He has not yet cleared to operate or \ntravel in a motor vehicle except for necessary doctors \nvisits, physical therapy, religious services, or absolutely \nessential personal needs. I realize that these work \nrestrictions are very restrictive. That is by design. Mr. \nTackett remains an active duty police officer with the \nLittle Rock Police Department. He is recovering from a \nprosthetic shoulder reconstruction. I do not want him \nbeing involved in any activities where he would be \nidentified as a police officer and potentially have to \n\nTACKETT – G702582  7\n  \n \n \ndefend himself, on of his partners, or a member of the \ncommunity. This poses an inherent risk to his reverse \ntotal shoulder arthroplasty. His work activities will be \nlessened when he is seen for his next visit.  \n \nOn September 29, 2021, Claimant was seen by Dr. Reynolds  \nwho stated that Claimant was still on modified duty at work with no use \nof the right upper extremity and only occasional driving. Dr. Reynolds \nopined that Claimant was not at maximum medical improvement.  \nIn 2014, Claimant entered the Deferred Retirement Option Plan  \n(hereinafter referred to as “DROP”) which resulted in a mandatory  \nretirement date in October of 2021. Claimant retired on October 31,  \n2021 pursuant to the terms of the DROP. Claimant testified:  \nQ. Now, this retirement date, was it not pre-\ndetermined?  \n   A. In essence it was.  \n Q. And when I say, “pre,” I mean, pre-injury \ndetermined, because you only can stay on a job so \nlong, isn’t that right.  \nA. Yes, sir. I was on the Seven-Year DROP at the time. \nNow, it’s extended to ten, but at the time I was on the \nSeven-Year DROP. If memory serves me correctly, I \nwas already on DROP, when the first injury occurred.  \n \nFurther, Claimant testified as to his retirement:  \nQ. Okay. But if you do retire, if you do take a retirement \n– a forced retirement because of your number of years \nof service and your particular contract that you had with \nretirement, do you not have an opportunity to go back \nto work?  \nA. Yes, sir. There’s actually, a provision under the state \nsupervised retirement plan, LOPFI, Local Police and \nFire System. They enacted some regulations that were \n\nTACKETT – G702582  8\n  \n \n \nin effect at the time, before I retired that would permit \nyou to separate, retire, be gone 90 days and come \nback and be reinstated at your former employment and \nthat was an opportunity; however, due to my injury, I \nwould not have been able to pass the physical, the pre-\nemployment physical agility test and/or the medical \nphysical examination.  \n \nOn December 30, 2021, Dr. Kirk Reynolds reported that he \nanticipated Claimant’s release at maximum medical improvement in \napproximately six months and continued the Claimant’s modified duty at \nwork with a 15-pound lifting, pushing, and pulling limit with the right \nupper extremity.  \nClaimant was seen by Dr. Kirk Reynolds on July 3, 2022. Dr. \nReynolds opined that Claimant reached maximum medical improvement \nstating:  \nNo further treatment is likely to provide an \nimprovement in functional activities with the right \nshoulder. He understands that he will always have \nsome permanent limitations with regards to the \nability to lift, push, and pull, as well as, perform \nrepetitive and extended work overhead. Internal \nrotation range of motion is the most unpredictable \npart of a reverse shoulder arthroplasty. I do not \nanticipate he will regain “normal” internal rotation of \nthe shoulder. He has a permanent lifting, pushing, \npulling restriction with the right upper extremity of 15 \npounds. He also has a permanent restriction of only \noccasional work above shoulder level.  \n \nConsidering the complicating and additional medical care required for \nthe Claimant’s compensable right shoulder injury, Dr. Reynolds \n\nTACKETT – G702582  9\n  \n \n \nassessed partial, permanent impairment of 43% to the right upper \nextremity or 26% to the whole body. The parties stipulated in the pre-\nhearing order filed May 22, 2024 that the Respondents have paid \npermanent partial disability benefits associated with the 26% rating to \nthe body as a whole.  \nA pre-hearing order was filed on May 22, 2024. According to the \ntext of the pre-hearing order, the Claimant contended the following: \n“Claimant contends that he has sustained compensable injuries to his \nright shoulder 3/17/17, that he has been found to have permanent \nimpairment, and that he is entitled to a wage loss disability \ndetermination.” \n  The Respondents contended, “Respondents contend that all \nappropriate benefits are being paid with regard to Claimant’s \ncompensable right shoulder injury sustained on 3/17/17. Claimant \ncontinued to work for the City of Little Rock after his injury until he \nretired and moved to Florida.” \n  The parties agreed to litigate the following issues:  \n1. Whether the Claimant is entitled to wage loss disability \nbenefits.  \n2. Attorney’s fees. \n \n  An administrative law judge filed an opinion on October 8, \n2024. The administrative law judge found that the Claimant failed to \n\nTACKETT – G702582  10\n  \n \n \nprove that he is entitled to wage loss benefits in any amount, and that \nClaimant’s attorney is not entitled to an attorney’s fee consistent with \nthese findings.  The administrative law judge therefore denied and \ndismissed the claim. The Claimant appeals to the Full Commission.  \nII. ADJUDICATION \n(A) Wage-Loss \n Wage-Loss factor is the extent to which a compensable injury \nhas affected the Claimant’s ability to earn a livelihood. Cross v. \nCrawford County Mem. Hosp., 54 Ark. App. 130, 923 S.W.2d 886 \n(1996). The Commission is charged with the duty of determining \ndisability. Id. In considering claims for permanent partial disability \nexceeding the employee’s percentage of permanent physical \nimpairment, the Commission may take into account, in addition to the \npercentage of permanent physical impairment, such factors as the \nemployee’s age, education, work experience, and other matters \nreasonably expected to affect his future earning capacity. Ark. Code \nAnn. § 11-9-522(b)(1)(Repl. 2012). Such other matters are motivation, \npost-injury income, credibility, demeanor, and a multitude of other \nfactors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961): City of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984); Curry \nv. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990); Cross v. \n\nTACKETT – G702582  11\n  \n \n \nCrawford County Memorial Hosp., supra. It is well established that a \nClaimant’s prior work history and education are factors to be considered \nin determining eligibility for wage-loss benefits. See Cross v. Crawford \nCounty Memorial Hosp., supra.; Glass v. Edens, supra.; City of \nFayetteville v Guess, supra.; Curry v. Franklin Electric, supra. \nArk. Code Ann. §11-9-102(4)(Repl. 2012) further provides, in \npertinent part:  \n(F)(ii)(a) Permanent benefits shall be awarded only upon a \ndetermination that the compensable injury was the major cause \nof the disability or impairment.  \n \n “Major cause” means “more than fifty percent (50%) of the \ncause,” and a finding of major cause shall be established according to \nthe preponderance of the evidence. Ark. Code Ann. §11-9-102(14)(Repl. \n2012). Preponderance of the evidence means the evidence having \ngreater weight or convincing force. Metropolitan Nat’l Bank v. La Sher \nOil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nIn workers’ compensation cases, the Commission functions as \nthe trier of fact. Blevins v. Safeway Stores, 25 Ark. App. 297, 757 \nS.W.2d 569 (1988). The Commission is not required to believe the \ntestimony of the Claimant or any other witness but may accept and \ntranslate into findings of fact only those portions of the testimony it \ndeems worthy of belief. Farmers Co-op v. Biles, 77 Ark. App. 1, 69 \n\nTACKETT – G702582  12\n  \n \n \nS.W.3d 899 (2002) The Full Commission has the duty to adjudicate the \ncase de novo and we are not bound by the characterization of evidence \nadopted by an administrative law judge. Tyson Foods, Inc. v. Watkins, \n31 Ark. App. 230, 792 S.W.2d 348 (1990).  \nIn the present matter, the Claimant is 62 years-old. Claimant \ngraduated high school in 1980. Claimant obtained approximately 55-60 \nhours of post-secondary education. After graduating high school, \nClaimant joined the Yell County Sheriff’s office and the Russellville \nPolice Department before joining the Little Rock Police Department \n(hereinafter referred to as “LRPD”) in 1985 as a Patrol Officer. From \n1988 through 1990 Claimant was an Undercover Detective with the \nOrganized Crime and Intelligence Division as a Vice Squad with the \nLRPD. Claimant then became an Investigator for the LRPD Training \nDivision and was promoted in August of 1994 to Sergeant. Claimant \nremained in this position until February of 2001 after which he was \npromoted to Commander of Special Operations for the Northwest Patrol \nDivision of LRPD. Claimant remained in that position until June of 2016. \nOn March 17, 2017, Claimant was working as the Shift Commander for \nthe Downtown Patrol Division of the LRPD. On October 31, 2021, \nClaimant retired from the LRPD.  At the time of his retirement, the \nClaimant held a full-time position earning $82,908. Following his \n\nTACKETT – G702582  13\n  \n \n \nretirement, the Claimant had the option of waiting 90-days and \nreapplying for a job with the Respondent. However, the credible proof \nsuggests that he would be considered a new employee and required to \nperform an agility test. The credible proof further suggests that the \nClaimant would not be able to perform such an agility test. The Claimant \nrelocated to Florida in April of 2023, and re-entered the work force as a \nsecurity officer for the University of West Florida. The Claimant’s new \nposition is a full-time job and has an annual salary of $50,000.  A \nsignificant reduction from his position with the Respondent.  \nClaimant’s compensable injury has negatively affected his ability \nto earn a livelihood. Claimant’s compensable injury is the major cause of \nhis disability or impairment. Claimant has limited education. Claimant is \nunable to perform labor intensive work as he did in the past. Claimant \nclearly exhibits a willingness to work. Claimant is also unable to earn \nwages equal to or greater than the wages he earned prior to the \naccident. Based upon these facts and conclusions the Full Commission \nfinds that the Claimant sustained wage-loss disability in the amount of \n14% in excess of the permanent anatomical impairment accepted and \npaid by the Respondents and further finds that the major cause of the \nadditional disability and impairment was related to the Claimant’s \ncompensable injury.  \n\nTACKETT – G702582  14\n  \n \n \nAfter reviewing the entire record de novo, therefore, the Full \nCommission finds that the Claimant proved that he is entitled to wage-\nloss benefits in the amount of 14% in addition to his given 26% whole-\nbody impairment rating. The Claimant’s attorney is entitled to fees for \nlegal services in accordance with Ark. Code Ann. § 11-9-715(a)(Repl. \n2012). For prevailing on appeal, the Claimant’s attorney is entitled to an \nadditional fee of five-hundred dollars ($500), pursuant to Ark. Code Ann. \n§ 11-9-715(b)(Repl. 2012).  \nIT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n     \n     \n Commissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \n I must respectfully dissent from the majority’s opinion finding the \nclaimant proved he is entitled to wage-loss benefits in the amount of 14% \nas a result of his compensable injury. \n The claimant, now 62 years old, sustained a compensable shoulder \ninjury in March 2017 during a training exercise with the Little Rock Police \nDepartment (LRPD).  \n\nTACKETT – G702582  15\n  \n \n \nThe claimant retired from LRPD on October 31, 2021, and has since \nmoved to Florida where he is currently working as a security guard for a \npublic university and acts as an independent contractor conducting \ngovernment background checks for two different companies.  \nWhen a claimant has been assigned an anatomical impairment \nrating to the body as a whole, the Commission has the authority to increase \nthe disability rating, and it can find a claimant permanently disabled based \nupon wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 \nS.W.3d 449 (2005).  \nThe wage-loss factor is the extent to which a compensable injury has \naffected the claimant's ability to earn a livelihood. Enterprise Products \nCompany v. Leach, 2009 Ark. App. 148, 316 S.W.3d 253. \n When determining wage-loss disability, the Commission may take \ninto account, in addition to the percentage of permanent physical \nimpairment, such factors as the employee’s age, education, work \nexperience, and other matters reasonably expected to affect his or her \nfuture earning capacity. Ark. Code Ann. §11-9-522(b)(1). Other factors may \ninclude but are not limited to motivation to return to work, post-injury \nearnings, credibility, and demeanor. Curry v. Franklin Electric, 32 Ark. App. \n168, 798 S.W.2d 130 (1990). A lack of interest in pursuing employment \n\nTACKETT – G702582  16\n  \n \n \nimpedes the assessment of the claimant's loss of earning capacity. Logan \nCounty v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005).  \nThe Commission may use its own superior knowledge of industrial \ndemands, limitations, and requirements in conjunction with the evidence to \ndetermine wage-loss disability. Taggart v. Mid America Packaging, 2009 \nArk. App. 335, 308 S.W.3d 643. \nThe claimant is a high school graduate with between fifty-five (55) \nand sixty (60) hours of college credit. Claimant worked for the Yell County \nSheriff’s office and the Russellville Police Department before joining the \nLitle Rock Police Department in 1985.  \nBetween 2014 and 2016, the claimant entered the Deferred \nRetirement Option Plan (DROP) through the respondent employer. The \nclaimant testified that once an employee enrolls in DROP, his retirement \ndate is set at the time the claimant enrolled. The claimant’s retirement date \nwas set for seven (7) years after enrollment. The claimant’s retirement from \nLRPD was effective October 31, 2021, and he receives $3,000 a month in \nretirement benefits. Major Christina Plummer with LRPD testified that had \nthe claimant not enrolled in DROP, he could still be employed with the City \nof Little Rock.  \nAfter his retirement, the claimant returned to work with the City of \nLittle Rock as an EEO Investigator earning $35 an hour on a part-time \n\nTACKETT – G702582  17\n  \n \n \nbasis. The claimant moved to Florida in April of 2023 where he is a full-time \nsecurity officer for the University of West Florida, earning $50,000 per year. \nIn addition, the claimant makes an average of $35.00 an hour conducting \nbackground checks for Omniplex and ABC, companies that contract with \nthe government to process security clearances.  \nThe claimant testified he can “pick and choose when I want to do it \nand how much, you know I can take on as far as workload.” \nAt the time of his retirement from LRPD, the claimant was making \n$39.86 per hour, or approximately $82,908 per year. With his combined \nretirement benefits and income from the University of West Florida, the \nclaimant is currently earning approximately $86,000 per year. In addition, \nhe has had two other part-time jobs averaging $35.00 per hour.  So, the \nclaimant is actually receiving more money per year now than he was \nearning for the respondent employer. \nAt the hearing, the claimant did not offer testimony he had applied for \nany jobs and was not hired due to his physical limitations that paid more \nthan his current job at the University of West Florida. He testified he \nconsiders his current role as a security guard “very well paid” and has \noffered no examples of how his injury has limited his ability to work in any \nfield.  \n\nTACKETT – G702582  18\n  \n \n \nThe only reason the claimant did not remain employed by the \nrespondent employer is the fact he voluntarily entered the DROP Program \nand had to retire when the seven-year period expired.  He did not leave his \nemployment with the respondent employer because of his compensable \ninjury, but as a result of his entry into the DROP Program. If he had not \nentered the DROP Program, he could still be employed with the respondent \nemployer earning more wages than he was earning at the time of the \naccident in question. \nThe claimant has failed to prove he is entitled to wage-loss disability.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n                                                           ___                                     _________ \nMICHAEL R. MAYTON, Commissioner","textLength":25236,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G702582 NATHAN TACKETT, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, SELF -INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED APRIL 9, 2025","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["back","shoulder","cervical","rotator cuff","carpal tunnel","repetitive"],"fetchedAt":"2026-05-19T22:29:44.411Z"},{"id":"alj-H303175-2025-04-08","awccNumber":"H303175","decisionDate":"2025-04-08","decisionYear":2025,"opinionType":"alj","claimantName":"Harlan Groning","employerName":"Williams Farms Gp","title":"GRONING VS. WILLIAMS FARMS GP AWCC# H303175 April 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Groning_Harlan_H303175_20250408.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Groning_Harlan_H303175_20250408.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303175 \n \n \nHARLAN GRONING, EMPLOYEE CLAIMANT \n \nWILLIAMS FARMS GP, \n EMPLOYER RESPONDENT \n \nTECHNOLOGY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED APRIL 8, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on April  4,  2025, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. William  C.  Frye,  Attorney  at  Law, North Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on April  4,  2025, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted into evidence was Respondents’ Exhibit 1, pleadings, correspondence \nand forms related to this claim, consisting of 11 pages.  Also, in order to address \nadequately   this   matter   under   Ark.   Code   Ann. § 11-9-705(a)(1)   (Repl. \n2012)(Commission  must  “conduct  the  hearing  .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe  record documents from the Commission’s file on the claim,  consisting  of 25 \n\nGRONING – H303175 \n \n2 \n \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \nArk.  App.  LEXIS 549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed on May 16,  2023,  Claimant \npurportedly suffered an injury to multiple body parts at work on January 26, 2023, \nwhen he  was involved  in  a  rollover  truck  accident.  According  to the  Form  AR-2 \nthat  was filed on May 17,  2023, Respondents accepted the  claim as  a  medical-\nonly  one and paid  benefits  pursuant  thereto.  Respondents’ counsel entered his \nappearance before the Commission on May 19, 2023. \n On January 8, 2024, through then-counsel Laura Beth York, Claimant filed \na Form AR-C.  Therein, he alleged that he was entitled to the entire range of initial \nand additional benefits as a result of his alleged left leg, left thigh, head, left-side \nribs, back, and “other whole body” injuries.  No hearing request accompanied this \nfiling.  Respondents’ counsel on January 23, 2024, reiterated his clients’ position \nthat they had accepted the claim as compensable and had been paying benefits.  \nOn  June  15,  2023,  Respondents  requested  a  subpoena  duces  tecum  from  the \nCommission.  This was issued on June 20, 2023. \n On December 9, 2024, York moved to withdraw from her representation of \nClaimant.    Accompanying  this  motion  were  copies  of  numerous  letters  her  office \nhad  sent  Claimant,  attempting  to  make  contact  with  him.    These  attempts  were \n\nGRONING – H303175 \n \n3 \n \nunsuccessful.  In an Order entered on December 20, 2024, the Full Commission \ngranted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on the claim  until \nDecember  27, 2024.   On  that date, Respondents filed the  instant motion, asking \nfor dismissal of it under AWCC R. 099.13.  My office wrote Claimant on December \n31, 2024, asking for a response to the motion within 20 days.  The letter was sent \nby first class and certified mail to the two Reyno, Arkansas addresses of Claimant \n(one a street address, the other a post office box number) listed in the file and on \nhis Form AR-C.  Claimant signed for the certified letters on January 7, 2025, and \nthe first-class letters were not returned.  Regardless, no response from Claimant \nto the motion was forthcoming.  On January 31, 2025, a hearing on the Motion to \nDismiss was  scheduled for April  4, 2025, at 10:30 a.m. at the Craighead  County \nCourthouse in Jonesboro.   The  notice  was  sent  to  Claimant  via  first-class  and \ncertified  mail to  the  same  addresses as  before.   In  this  instance,  the certified \nletters were claimed  by “Donnie Yandell”;  and  as was  the  case  previously, the \nfirst-class letters were not returned to the Commission. \n The hearing on the Motion to Dismiss proceeded as scheduled on April 4, \n2025.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared through counsel and argued for dismissal under Rule 13. \n\nGRONING – H303175 \n \n4 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted; this claim for additional \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n\nGRONING – H303175 \n \n5 \n \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaims—by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the April 4, 2025, hearing to argue against its \ndismissal)  since the filing  of  his  Form  AR-C  on January  8,  2024.   Thus,  the \nevidence preponderates that dismissal of the claim is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the appellate courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nGRONING – H303175 \n \n6 \n \nfind  that  the  dismissal  of  this claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7908,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H303175 HARLAN GRONING, EMPLOYEE CLAIMANT WILLIAMS FARMS GP, EMPLOYER RESPONDENT TECHNOLOGY INS. CO., CARRIER RESPONDENT OPINION FILED APRIL 8, 2025 Hearing before Administrative Law Judge O. Milton Fine II on April 4, 2025, in Jonesboro, Craighead County, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:41:36.670Z"},{"id":"alj-H005445-2025-04-07","awccNumber":"H005445","decisionDate":"2025-04-07","decisionYear":2025,"opinionType":"alj","claimantName":"Gerardo Munoz","employerName":"Azz Galvanizing, Inc","title":"MUNOZ VS. AZZ GALVANIZING, INC. AWCC# H005445 April 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MUNOZ_GERARDO_H005445_20250407.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MUNOZ_GERARDO_H005445_20250407.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H005445 \n \nGERARDO PEREZ MUNOZ, Employee CLAIMANT \n \nAZZ GALVANIZING, INC., Employer RESPONDENT \n \nAMERICAN ZURICH INS. CO., Carrier RESPONDENT \n \n \n \n OPINION FILED APRIL 7, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE GREGORY   K.   STEWART in \nSpringdale, Washington County, Arkansas. \n \nClaimant   represented   by EVELYN   E.   BROOKS,   Attorney   at   Law, Fayetteville, \nArkansas. \n \nRespondents  represented  by KAREN  H.  MCKINNEY,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \n On March  12,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at \nSpringdale, Arkansas.   A pre-hearing conference was conducted on January 15, 2025, \nand  a pre-hearing order  was  filed on that  same  date. A  copy  of  the  Pre-hearing  Order \nhas  been  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  this \nclaim. \n 2. The prior Opinion of June 28, 2021, is final. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n\nMunoz – H400445 \n \n-2- \n 1. Compensability of injury to claimant’s cervical spine on June 10, 2020. \n 2. Related medical. \n 3. Res judicata. \n 4. Law of case. \n 5. Claim proclusion. \n At the time of the hearing the parties agreed to litigate the claimant’s entitlement \nto payment of an impairment rating for his compensable right shoulder injury. \n The  claimant  contends his  neck  was  injured  at  the  same  time  his  shoulder  was \ninjured and he is entitled to medical treatment for his neck. Claimant reserves all other \nissues. \n With regard to the alleged cervical injury, respondents contend the claimant was \nthe subject of a full hearing on May 26, 2021 wherein claimant alleged a compensable \ninjury.  Following  the  taking  of  testimony  and  review  of  the  medical  records,  the  ALJ \nfound that the claimant proved he sustained a compensable injury to his right shoulder \nand  upper  arm. Res  judicata applies  where  there  has  been  a  final  adjudication  on  the \nmerits of an issue by a court of competent jurisdiction on all matters litigated and those \nmatters necessarily within the issue which might have been litigated. See Castleberry v. \nElite  Lamp  Company,  69  Ark.  App.  359,  13  S.W.  3d  211  (2000); Harvest  Foods  v. \nWasham, 52 Ark. App. 72, 914, S.W. 2d 776 (1996); Perry v. Leisure Lodges, Inc., 19 \nArk.  App.  143,  718  SW.  2d  114  (1986). Res  judicata applies  to  decisions  of  the \nWorkers’  Compensation  Commission  if  the  merits  of  the  issue  have  already  been \nsubject  to  a  full  and  fair  hearing.  Beliew  v.  Stuggart  Rice  Mill,  64  Ark.  App.  334,  980 \nS.W. 2d 270 (1998); Perry, supra. The rationale underlying the doctrine of res judicata is \n\nMunoz – H400445 \n \n-3- \nto  end  litigation  by  preventing  a  party  who  has  had  one  fair  trial  of  a  question  of  fact \nfrom again drawing it into controversary. Cox v. Keahey, 84 Ark. App. 121, 133 S.W. 3d \n430 (2003); Mohawk Tire & Rubber Co v. Brider, 259 Ark. 728, 536 S.W. 2d 126 (1976). \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1. The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference \nconducted  on January  15,  2025,  and  contained  in  a pre-hearing  order  filed  that  same \ndate are hereby accepted as fact. \n 2. Claimant’s claim for compensability of an injury to his cervical spine on June \n10, 2020, is barred by the doctrine of res judicata. \n 3.  Claimant  has  met  his  burden  of  proving  by  a  preponderance  of  the  evidence \nthat he is entitled to payment of permanent partial disability benefits in an amount equal \nto 10% to the body as a whole for his compensable right shoulder injury. \n 4. Respondent has controverted claimant’s entitlement to payment of the 10% \nrating to the right shoulder and is liable for payment of an attorney fee. \n \n \n \n \n\nMunoz – H400445 \n \n-4- \nFACTUAL BACKGROUND \n It should be noted that the primary issue of the current claim is compensability of \na  cervical  spine  injury  on  June  10,  2020.  However,  before  addressing  that  issue  it  is \nimportant to set out the history of this claim.  \n Claimant is a 54-year-old man who began working for respondent in 2019. At the \nfirst hearing in this claim on May 26, 2021, claimant described his job duties: “I would \nbring the cold bars out of the water and then use a grinder to cut them so they could be \nused.” He also testified that on June 10, 2020, a piece of heavy metal got loose, and the \nfollowing occurred: \nI  was  working  with  some  chassis  with  my  partner  and  our \ncrane  was  off  and  I  don’t  know  how  was  it  that  the  next \ncrane  was  on  and  it  pushed  the  other  one,  and  so  that  it \nwould  not hit  me,  I  tried  to  push  it  back and  that  is  how my \nshoulder was hurt, my right shoulder. \n \n A  video  of  this  incident  was  submitted  into  the  record  at  the  time  of  the  first \nhearing, and it has been duplicated in the transcript of the most recent hearing. \n Following  this  incident,  claimant  was  sent  for  medical  treatment  and  diagnosed \nas suffering a sprain of the right shoulder. Claimant performed some light duty work for \nrespondent for several weeks, continuing to work for respondent until he was taken off \nwork after developing COVID. While he was off work, he was terminated by respondent.  \n Claimant’s claim for an injury to his right shoulder was denied and a hearing on \ncompensability of injury to his right shoulder and upper arm was conducted on May 26, \n2021.  Following  the  hearing,  an  Opinion  was  filed  by  this  administrative  law  judge  on \nJune  28,  2021,  finding  that  claimant  had  proven  a  compensable  injury  to  his  right \nshoulder  and  upper  arm;  and  awarding  payment  of  all  reasonable  and  necessary \n\nMunoz – H400445 \n \n-5- \nmedical  treatment.  Neither  party  appealed that  opinion  and  the  parties  have  stipulated \nthat it is final. \n After  the  first  hearing,  claimant  came  under  the  care  of  Dr.  James  Boyle  who \nperformed surgery on claimant’s right shoulder on April 25, 2022. After the surgery, \nclaimant  underwent  physical  therapy  and  was  released  by  Dr.  Boyle  on  August  30, \n2022. \n When  claimant’s  right  shoulder  complaints  continued,  he  sought  additional \nmedical  treatment  from  Dr.  Christopher  Dougherty.  Dr.  Dougherty  performed a  second \nprocedure  on  claimant’s  right  shoulder  on  October  17,  2023,  to  address  loosened \nhardware  as  well  as  impingement  syndrome  and  acromioclavicular  joint  arthritis.  At \nsome point, Dr. Dougherty also performed a carpal tunnel release on claimant’s right \nwrist. On June 5, 2024, Dr. Dougherty indicated that claimant could return to work with \ngradual increases in the amount of weight he could lift. A form completed at The Agility \nCenter  dated  June  26,  2024,  indicates  that  claimant  reached  maximum  medical \nimprovement  on  June  5,  2024,  and  that  he  has  a  10%  impairment  rating  to  his  right \nshoulder per the AMA Guides 4\nth\n Edition.  \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis cervical spine during the incident on June 10, 2020. \n \nADJUDICATION \n Claimant contends that in addition to his compensable right shoulder and upper \narm injury on June 10, 2020, he also suffered a compensable injury to the cervical spine \n\nMunoz – H400445 \n \n-6- \non that date. Respondent contends that the doctrine of res judicata bars litigation of the \ncervical spine claim.  \n Res  judicata applies  where  there  has  been  a  final  adjudication  on  the  merits  of \nan  issue  by a  court  of  competent  jurisdiction  on all  matters  litigated and  those  matters \nnecessarily  within  the  issue  which  might  have  been  litigated. Beliew  v.  Stuggart  Rice \nMill, 64 Ark. App. 334, 987 S.W. 2d 281 (1998). The key question is whether the party \nagainst  whom  the  earlier  decision  is  being  asserted  had  a  full  and  fair  opportunity  to \nlitigate the issue in question. Cater v. Cater, 311 Ark. 627, 846 S.W. 2d 173 (1993). \n Res judicata does not apply if a claimant has sustained a change in condition or \nseeks  benefits  for  a  subsequent  period  of  complications. Rothrock  v.  Advanced  Envtl. \nRecycling, 218 Ark. App. 88, 544, S.W. 3d 61.  \n Even though the Workers’ Compensation Commission is not a court, its awards \nare in the nature of judgements, and the doctrine of res judicata applies to its decisions. \nGwin v. R. D. Hall Tank Co., 10 Ark. App. 12, 660 S.W. 2d 947 (1983). \n I  find  that  the  matter  of  compensability  of  an  alleged  cervical  spine  injury  could \nhave been litigated at the time of the first hearing; therefore, the doctrine of res judicata \nis applicable and bars litigation of the current claim.  \n The  issue  at  the  time  of  the  first  hearing  was  compensability  of  an  injury  to \nclaimant’s right shoulder and upper arm. At the first hearing claimant did not mention \ncomplaints of neck pain immediately after his accident. However, at the second hearing \nclaimant  testified  that  he  had  neck  pain  present  since  the  time  of  the  accident.  This  is \nthe  only  significant  difference  in  claimant’s  testimony  at  the  first  hearing  versus  his \ntestimony at the second hearing.  \n\nMunoz – H400445 \n \n-7- \n At  some  point,  claimant’s  primary  care  physician, Dr.   Clinton   Turner, \nrecommended physical therapy for claimant’s right shoulder/arm pain. This was delayed \nfor  a  period  of  time  because  claimant  was  no  longer  working.  (Turner  report  of \nDecember  30,  2020).  Claimant  began  physical  therapy  on  January  20,  2021,  and  the \ninitial  evaluation  includes  complaints  of  right  sided  neck  pain  with  cervical  traction \nincluded in claimant’s physical therapy regimen. Thereafter, Dr. Turner in a report dated \nFebruary 19, 2021, indicated that he believed claimant had cervical radiculopathy, and \nhe  ordered  an  MRI  scan  that  was  performed  on  February  26,  2021,  and  read  as \nshowing  a  central  disc  protrusion  at  C5-6  and  C6-7. Thereafter, claimant’s treatment \nwas  primarily  for  his  right  shoulder  and  arm.  Nevertheless,  these  medical  reports \nexisted prior to the original hearing on May 26, 2021.  \n The  initial  hearing  on  May  26,  2021,  was  just  three  months  after  claimant’s \ncervical MRI scan. The testimony presented at the second hearing in this claim involves \nthe exact same accident previously testified to by claimant at the first hearing and with \nthe  exception  of  claimant  mentioning  pain  in  his  neck  at  the  second  hearing  it  is \nessentially  the  same  testimony.  Claimant  was  also  questioned  about  his  movements \nduring  the  accident  with  the  same  exact  video  used  to  question  his  movements  at  the \ntime of the first hearing. \n More  significantly, the  medical  evidence  relating  to  a  potential  cervical  spine \ninjury is the same medical evidence that existed at the time of the first hearing. Claimant \nhas not undergone any additional evaluations for his cervical spine complaints since the \nfirst hearing.  \n\nMunoz – H400445 \n \n-8- \n In  short,  virtually  all  of  the  evidence  that  existed  relating  to  a  potential  cervical \nspine injury existed at the time of the first hearing. This supports the finding that this is a \nmatter that might have been litigated at that time.  \n In  support  of  his  contention  that  the  doctrine  of res  judicata is  not  applicable, \nclaimant notes that in his contentions at the time of the first hearing it includes language \nstating: “Claimant reserves all other issues.” No mention was made of reserving the \nspecific  issue  of  compensability  of  an  injury  to  the  cervical  spine.  Obviously,  there  are \ninstances  in  which  compensability  of  injuries  to  different  parts  of  the  body  may \nnecessitate  more  than  one  hearing,  such  a  newly  discovered  diagnosis  or  testing \nrevealing an additional potential body part that was injured. Those do not exist here. Nor \nis  there  any  evidence of  a  change  in  condition  or  of the  claimant seeking benefit  for  a \nsubsequent period of complications.  \n In  this  case,  the  evidence  is  essentially  the  same  as  the  evidence  presented  at \nthe  first  hearing.  No  reason  has  been  offered  as  to  why  compensability  of  an  injury  to \nclaimant’s cervical spine could not have been litigated at the time of the first hearing. \nThus, I do not find that this general statement in claimant’s contentions is sufficient to \nnullify the doctrine of res judicata.  \n The  purpose  of  the  doctrine  of res  judicata is  to  put  an  end  to  litigation  by \npreventing a  party who  had  one  fair  trial  on  a  matter  from  relitigating  the  matter  a \nsecond  time. Cox  v.  Keahey,  84  Ark.  App.  121,  133  S.W.  3d  430  (2003); Brandon  v. \nArkansas  Western  Gas  Company,  76  Ark.  App.  201,  61  S.W.  3d  193  (2001).  As \npreviously  noted,  the  key  question  is  whether  the  party  against whom the  earlier \ndecision is being asserted had a full and fair opportunity to litigate the issue in question. \n\nMunoz – H400445 \n \n-9- \nCater, id. This includes not only the matters litigated, but also those matters within the \nissue   that   might   have   been   litigated.   Here,   it   seems   clear   that   the   issue   of \ncompensability  of  an  injury  to  claimant’s  cervical  spine  was  within  the  issue  of \ncompensability and could have been litigated at the time of the first hearing. Claimant’s \ntestimony at the two hearings was essentially the same and the medical evidence was \nin existence at the time of the first hearing.  \n Based  on  the  foregoing,  I  find  that  the  issue  of  compensability  of  injury  to  the \nneck on June 10, 2020, is an issue that could have been litigated at the time of the first \nhearing. Therefore, this claim is barred by the doctrine of res judicata. \n The  final  issue  for  consideration  involves  claimant’s  request  for  payment  of \npermanent partial disability benefits based on a 10% impairment rating assigned for his \ncompensable right shoulder injury. Claimant has undergone two surgical procedures on \nhis  right  shoulder.  The  documentary  evidence  contains  a  report  dated  June  26,  2024, \nfrom The Agility Center noting that claimant reached maximum medical improvement on \nJune 5, 2024, and stating that according to the AMA Guides 4\nth\n Edition, claimant has a \npermanent impairment rating equal to 10% to the body as a whole for his right shoulder \ninjury.  I  find  that  the  report  assigning  the  10%  rating  is  credible  and  entitled  to  great \nweight.   Therefore,   I   find   that   claimant   has   met   his   burden   of   proving   by   a \npreponderance  of  the  evidence  that  he  is  entitled  to  payment  of  permanent  partial \ndisability benefits in an amount equal to 10% to the body as a whole. Respondent has \ncontroverted payment of this impairment rating. \n \n \n\nMunoz – H400445 \n \n-10- \nAWARD \n Claimant’s claim for a compensable cervical spine injury is barred by the doctrine \nof res  judicata. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to payment of permanent partial disability benefits in an amount equal to 10% to \nthe body as a whole. This payment was controverted by the respondent. \n Pursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant. Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded. This fee is to be paid one-half by the carrier and one-half \nby the claimant. Also pursuant to A.C.A. §11-9-715(a)(1)(B), an attorney fee is not \nawarded on medical benefits. \nRespondents are liable for payment of the court reporter’s charges for \npreparation of the hearing transcript in the amount of $582.30. \n IT IS SO ORDERED. \n \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":16892,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H005445 GERARDO PEREZ MUNOZ, Employee CLAIMANT AZZ GALVANIZING, INC., Employer RESPONDENT AMERICAN ZURICH INS. CO., Carrier RESPONDENT OPINION FILED APRIL 7, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Ark...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["cervical","shoulder","neck","back","sprain","carpal tunnel","wrist"],"fetchedAt":"2026-05-19T22:41:34.604Z"},{"id":"alj-H101491-2025-04-04","awccNumber":"H101491","decisionDate":"2025-04-04","decisionYear":2025,"opinionType":"alj","claimantName":"Earvin Davis","employerName":"Bernhard Mcc, LLC","title":"DAVIS VS. BERNHARD MCC, LLC AWCC# H101491 April 04, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DAVIS_EARVIN_H101491_20250404.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVIS_EARVIN_H101491_20250404.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM No H101491 \n \nEARVIN DAVIS, JR., EMPLOYEE       CLAIMANT \n \nvs. \n \nBERNHARD MCC, LLC, EMPLOYER                            RESPONDENT \n                           \n \nTRAVELERS PROPERTY CASUALTY INSURANCE \nCOPMANY OF AMERICA, CARRIER                     RESPONDENT \n \n \n \nOPINION & ORDER FILED 4 APRIL 2025 \n \n \nThis claim was heard before Arkansas Workers’ Compensation Commission Administrative \nLaw Judge JayO. Howe on 8 January 2025 in Little Rock, Arkansas. \n \nThe claimant was represented by Tolley & Brooks Law Firm, Ms. Evelyn Brooks. \n \nThe respondents were represented by Friday, Eldredge & Clark, LLP, Mr. Guy Wade. \n \nSTATEMENT OF THE CASE \n \n The parties participated in a prehearing conference on 13 June 2023. A Prehearing \nOrder was entered the same day. That Order was entered into the hearing record without \nobjection as Commission’s Exhibit No 1. As outlined in the Prehearing Order, the parties \nagreed to the following: \nSTIPULATIONS \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2. The employee/employer/carrier relationship existed on 19 December 2019, \nwhen the claimant alleges that he sustained a compensable injury, and at all \nother relevant times. \n \n3. The respondents have controverted this claim in its entirety. \n \n \n\nE. DAVIS- H101491 \n2 \n \nISSUES \n1. Whether the claimant sustained a compensable injury to his shoulders by \nspecific incident. \n \n2. Whether the claimant is entitled to reasonable and necessary medical \ntreatment. \n \n 3.  Whether this claim is barred by the Shippers Defense.\n1\n \n All other issues are reserved.\n2\n \nCONTENTIONS \n According to their prehearing filings: \nThe claimant contends that he injured his bilateral shoulders on 19 \nDecember 2023 and that he is entitled to medical treatment. \n The respondents contend that the claimant did not sustain a compensable \ninjury. The claimant’s complaints pre-existed  the date of the alleged  event. The \nclaimant  failed  and/or  refused  to  timely  report  a  work  injury.  The  respondents \naffirmatively plead the Shippers Defense. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witnesses, observing their demeanor, I make the \nfollowing findings of fact and conclusions of law under Ark. Code Ann. § 11-9-704 (Repl. \n2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n1\n Shippers Transport of GA v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979). \n2\n The Prehearing Order indicated an additional issue of whether the claimant was entitled \nto temporary total disability (TTD) benefits. The parties agreed at the beginning of the \nhearing that that issue would not be presented for litigation. [TR at 9-10.] The Prehearing \nOrder also indicated that attorney’s fees were an issue. But with the claim for TTD benefits \nbeing reserved, the issue of whether the claimant is entitled to an attorney’s fee associated \nwith an award of those benefits is similarly reserved. \n\nE. DAVIS- H101491 \n3 \n \n \n2. The stipulations as set forth above are accepted. \n3. The claimant failed to prove by a preponderance of the evidence that he \nsuffered a compensable injury to his shoulders by specific incident. \n \n4. The claimant failed to prove by a preponderance of the evidence that he is \nentitled to reasonable and necessary medical treatment of his alleged \ninjuries. \n \n5. Because the claimant failed to prove a compensable injury for which the \nrespondents may be liable, as indicated in Finding and Conclusion No 3, \nabove, their affirmatively-plead Shippers Defense is moot and will not be \naddressed in this opinion. \n \nSUMMARY OF THE EVIDENCE \n The record consists of the hearing transcript and two bound volumes of exhibits. The \nfollowing witnesses appeared at the hearing: Claimant Earvin Davis, Mr. Dequiandrick \nSmith, Mr. David Jones, Ms. Denise Winarski, and Mr. Larry Hudson. In addition to the \nPrehearing Order discussed above, the following exhibits were entered into the record: \nClaimant’s Exhibit No 1 (one index page and 22 pages of non-medical records); Claimant’s \nExhibit No 2 (three index pages and 115 pages of medical records); Respondents’ Exhibit No \n1 (seven index pages and 420 pages of medical records); Respondents’ Exhibit No 2 (two \nindex pages and 334 pages of non-medical records); Respondents' Exhibit No 3 (the \ntranscript of the 22 August 2022 deposition of Wyatt Jones); Respondents' Exhibit No 4 (the \ntranscript of the 22 August 2022 deposition of David Jones); and Respondents' Exhibit No 5 \n(the transcript of the 28 October 2021 deposition of the claimant). \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \n\nE. DAVIS- H101491 \n4 \n \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nA. The Claimant Failed to Prove by a Preponderance of the Evidence That He \nSuffered a Compensable Injury. \n \n The claimant alleges that he suffered compensable injuries to both shoulders by \nspecific incident. Ark. Code Ann. § 11-9-102(4) (Supp. 2024) provides in pertinent part: \n(A) “Compensable injury” means: (i) An accidental injury causing internal or \nexternal physical harm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in disability or \ndeath.  An injury is “accidental” only if it is caused by a specific incident and \nis identifiable by time and place of occurrence[.]    \n \nA compensable injury must also be established by medical evidence supported by \nobjective findings.  Id. §11-9-102(4)(D). “Objective findings” are those findings which cannot \ncome under the voluntary control of the patient.  Id. §11-9-102(16)(A)(i). The requirement \nthat a compensable injury must be established by medical evidence supported by objective \nfindings applies only to the existence and extent of the injury.  Stephens Truck Lines v. \nMillican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).      \nThe employee has the burden of proving by a preponderance of the evidence that he \nsustained a compensable injury.  Id. §11-9-102(4)(E)(i).  Preponderance of the evidence \nmeans the evidence having greater weight or convincing force.  Metropolitan Nat’l Bank v. \nLa Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). If a claimant fails to establish by \n\nE. DAVIS- H101491 \n5 \n \na preponderance of the evidence any of the requirements for establishing a compensable \ninjury, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. App. \n126, 938 S.W.2d 876 (1997). \nTestimony \n \nThe claimant was 64 years old at the time of the hearing. The evidence shows that \nhe was working on installing a large storm drainpipe in a trench at a construction site on \n19 December 2019.  According to the claimant, he was down in the trench and sitting on a \nsection of pipe when the walls of the trench fell in. \n... the walls came in and they caught me above my waist and my chest. And I \nasked the guys to throw me a shovel and I tried digging myself out, initially, \nbut after about three or four, you know, pulls—because I was frantic, trying \nto do it, you know, I got tired and my shoulders hurt. So I asked that – you \nknow, because I was scared for anybody to get down there, when I first – \nwhen it first happened, that’s why I tried myself. But once I couldn’t, you \nknow, David asked his son Wyatt and Dequiandrick, “DQ,” to jump in and dig \nme out. \n \n[TR at 29.] \n \n The claimant testified that everyone went back to work per usual after he was dug \nout and that his supervisor David Jones observed the incident. He stated that he did not \nattempt to report an injury until three days later when he asked Mr. Jones about seeking \ntreatment. He also testified that he called Denise Winarski, a corporate HR representative, \nto notify her of his injury and/or the accident. \n On cross-examination, the claimant acknowledged that employees were required to \ncomplete daily Job Safety Analysis (JSA) forms and that the JSA he signed on 19 December \n2020 did not reflect any accident or injury. He explained that he did not report an injury \nthat day because he did not yet know that he was hurt and that he did report an accident \nbecause Mr. Jones was present when the trench collapsed on him. The claimant also \n\nE. DAVIS- H101491 \n6 \n \nrecalled being at the 22 August 2022 deposition of Mr. Jones, when the deponent denied \nthat the trench collapse incident ever occurred. \n The claimant called Dequiandrick “DQ” Smith as a witness. Mr. Smith testified that \nhe worked at the construction site alongside the claimant. According to his testimony, the \ntrench that the claimant was working in was seven or eight feet deep. He recalled bad \nweather on 19 December 2019, “and like the holes was already caving in; so Earvin must \nhave jumped in the hole and it collapsed on him and we all was rushing to get him out of \nthere.” [TR at 120.] He said that Mr. Jones was present and that five or six people worked \nto dig the claimant out of the hole. Afterwards, according to Mr. Smith, everyone sat around \nchatting, the “big bosses” were there, and a meeting was held either that day or the next \nmorning to discuss the accident and appropriate safety precautions. \n On cross-examination, Mr. Smith denied that the claimant was sitting on the pipe \nwhen the trench fell in, because “[y]ou can’t sit on the job.” [TR at 124.] When asked about \nthe extent of the material collapsing on and around the claimant, he testified: \nQ:  Now when you testified that this hole collapsed on him, how deep was the \nsand on his body, in your mind? \n \nA:  [No response.] \nQ:  Was it up to his knees? Was it up to his waist, over his head, where was \nit? \n \nA:  He was kind of buried, buried in there. \nQ:  Well, I’m asking you. How far did the collapse go to his body? \nA:  Over his head, probably. Probably. \nQ:  Over his head? \nA:  Yes. \n[TR at 126.] \n\nE. DAVIS- H101491 \n7 \n \nQ:  Now, you said when you turned around, you saw his hand. Is that the \nonly part of his body you could see sticking out? \n \nA:  From my point of view, yes, sir. \nQ:  Okay. And you said the dirt was either up to or over his head at the time, \nis that right? \n \nA:  Yes, sir. \nQ:  Okay. That’s what you recall? \nA:  Yes, sir. \n[TR at 134.] \n He reiterated that Mr. Jones was present that day. Mr. Smith also stated that he \nknew that the claimant was injured that day because the claimant was complaining about \nhis back hurting. Before concluding his testimony, Mr. Smith confirmed that he did not \nmake a report of any accident or any injuries on the day in question. \n Mr. Jones testified that he was the job site foreman on 19 December 2019. He denied \nany knowledge of a trench collapsing on the claimant that day. He further testified that the \nclaimant never reported any incident or injury to him that day. He testified that JSAs are \nmeant for reporting injuries (to oneself or to another), that they must be completed daily, \nand that the JSA for 19 December 2019 included no report of injury for anyone on his crew. \nMr. Jones offered that had an incident occurred with a trench or hole collapsing on a crew \nmember, emergency responders would have been contacted, and the job site likely would \nhave been shut down. But none of those things actually occurred. \n Ms. Denise Winarski testified that she has worked for the respondent-employer for \nnearly 25 years and that she was the corporate HR partner assigned to the claimant’s job \nsite. She confirmed that the claimant contacted her by phone with complaints about \nneeding some safety glasses and about someone selling food on the job site without \npermission; but she denied that he ever made any report to her of an accident or injury. Job \n\nE. DAVIS- H101491 \n8 \n \nsite safety or accident and injury reports are outside of her scope of responsibility and \nnormal reporting structure. If she had received such a report, she would have contacted \nsomeone in safety management and someone in job site management to ensure the normal \nreporting steps were in already progress. \n Mr. Larry Hudson testified that he worked as the respondent-employer’s safety \nmanager on the claimant’s job site and that any injuries or safety events were to be \nreported to him. He, too, denied any knowledge of an incident or injury occurring on 19 \nDecember 2019. \n Discussion \n A claim for compensation must be denied if a claimant fails to establish by a \npreponderance of the evidence any of the requirements for proving a compensable injury. \nMikel, supra. One of those requirements is proving that the alleged specific incident \nactually occurred. I do not find that the claimant proved by a preponderance of the evidence \nthat a trench collapsed and trapped him on 19 December 2019 as he has alleged. His claim \nfor initial benefits must, therefore, fail. \n As an initial matter, the claimant was not a credible witness. He was hostile \ntowards many of the questions, especially to those around his past medical treatment. \nSeveral medical records in evidence do not reflect supposed reports of injuries or \nconversations that he claimed he made at visits with his providers. He acknowledged \nmaking conflicting reports of disability and being able and willing to work across claims for \nSocial Security benefits, unemployment benefits, and Workers’ Compensation benefits;\n3\n and \nhis testimony confirmed that he failed to disclose any disabling conditions (while receiving \n \n3\n I note this acknowledging that different adjudicative and statutory standards apply to \ndifferent benefits that may relate to a disability. See, e.g., Kirkendolph v. Dep’t of Fin. & \nAdmin., 2010 Ark. App. 786, 2010 Ark. App. LEXIS 831, citing Martin v. Jensen Constr. \nCo., 2010 Ark. App. 294, 374 S.W.3d 774.  \n\nE. DAVIS- H101491 \n9 \n \nSocial Security Disability benefits) or his then-current narcotic pain management regimen \non his pre-employment paperwork. Taking into account the inconsistency of his past claims \nrelating to his treatments and his claims about his ability to work and his overall demeanor \non the witness stand, I found him to be antagonistic towards the proceeding. I do not find \nhim to be a credible witness. White v. Gregg Agricultural Ent., supra. \n The claimant’s theory of how he came to be injured turns on accepting a dramatic \nepisode of an earthen trench collapsing in on and around him, up to his chest, while he was \ndown in the trench sitting on a pipe. He then injured both of his shoulders frantically trying \nto dig himself out of the entrapment. The claimant related that the entombment was such \nthat his supervisor had to send two others to his aid to “jump in and dig [him] out.” [TR at \n29.] He acknowledged, however, that his daily accident and injury paperwork makes no \nmention of the event occurring. He offered as an explanation for the absence of \ncontemporaneous accident or injury reports that it was just obvious to all that the incident \noccurred and that he was not aware of any injury until about three days later. Nonetheless, \nhe claimed that he made a phone call to the regional HR representative that day to inform \nher of the accident, instead of utilizing any of the usual, on-site reporting mechanisms. \n The claimant’s then-coworker Mr. Smith lent his testimony towards the claimant’s \nstory. His version of the events, however, was even more dramatic, if not fanciful. He \ndenied that the claimant would have been sitting in the trench and that the material \ncollapsed up to the claimant’s chest. Instead, he testified that the claimant had been \nstanding in the trench and that he was suddenly buried up over his head, with only an arm \nand hand visible. The relative, spatial differences in those competing scenarios would \nnecessarily account for several vertical feet worth of additional material collapsing around \nand on top of the claimant while down in the trench. \n\nE. DAVIS- H101491 \n10 \n \nMr. Smith also acknowledged that his daily paperwork made no mention of an \naccident or anyone being injured, despite testifying that the claimant complained \nafterwards of injuring his back. Mr. Smith’s recollection of the supposed event also differed \nfrom the claimant’s in that he recalled five or six crew members having to be involved in the \nclaimant’s extrication; the claimant said that it was only Mr. Smith and another. His \ntestimony stands alone in recalling bad weather, other dangerous trenches, and a meeting \nwith the “big bosses” being present. I do not find Mr. Smith’ testimony credible. \n Mr. Jones testified credibly that, consistent with the JSAs from that day, no \nworkplace accident or injury to any person was reported on 19 December 2019. He had no \nrecollection of anything akin to the claimant’s story taking place and denied that the \nclaimant ever reported something of the sort to him after the fact. Had such an episode \noccurred, he testified that emergency responders would have been called in to safely remove \na trapped worker and that the job site would have been shut down in the aftermath of such \nan event. \n Ms. Winarski testified credibly that while she did have some phone conversations \nwith the claimant about unrelated complaints, he never made an accident or injury report \nto her. If he had, she would have directed him to appropriate contacts and made reports of \nher own. But she denied those things ever happened. \n Mr. Hudson also testified credibly about his role as the project’s safety manager. He \nhad no recollection or record of any incident report or safety event or accident occurring as \nthe claimant alleges. \n The claimant failed to provide any credible evidence in support of his account of an \nincident actually occurring on 19 December 2019 that ultimately resulted in his claimed \ninjuries. He offered only his unsupported testimony and the testimony of another former \nworker whose version of the supposed events, while equally unsupported, was inconsistent \n\nE. DAVIS- H101491 \n11 \n \neven with the claimant’s telling of the story. The credible evidence preponderates against a \nfinding that the alleged specific incident, identifiable by time and place of occurrence, \nactually took place.  \n According to the claimant’s testimony, he was not aware of an injury to either of his \nshoulders until about three days after the alleged events of 19 December 2019.\n4\n He does not \nprovide medical evidence in support of any sort of injury until a MedExpress doctor’s work \nnote dated 10 January 2020. That note does not specify any diagnosis or treatment \ninformation. It only provides some work restrictions. The claimant provided no associated \nor supporting records around his doctor’s visit that day that resulted in the work note. The \nrespondents, on the other hand, provided the additional records from that MedExpress \nvisit. On that day the claimant complained of elbow pain that had onset three days earlier. \n(This claim is not related to a supposed elbow injury from around 7 January 2020.) \nAccording to the notes provided by the respondents, the claimant reported no known injury \nat that time. He was diagnosed that day with tennis elbow. That work note does not help \nhim establish a claim for a compensable injury to his shoulders. \nThe claimant also provided medical records from a 23 January 2020 doctor’s visit. \nThat record reflects (again) a complaint of left elbow pain, which he reported had been \npresent for two to three weeks, and resolved right elbow pain. It makes no mention of a \nshoulder injury. His medical evidence next showed a visit on 30 July 2020 with complaints \nof a year-old mass on the right side of his neck, ear pain, and neck pain. That note indicates \nan assessment of some clavicle asymmetry likely due to arthritis, but it makes no reference \nto any work injury or shoulder injury. \n \n4\n Mr. Smith, conversely, testified that the claimant was complaining of a back injury after \nbeing dug out of the trench. \n\nE. DAVIS- H101491 \n12 \n \nOn 20 August 2020, the claimant made a complaint of right shoulder pain that had \nbeen present for six to eight months. There is no mention of a work injury. He was \ndiagnosed with Sternoclavicular Arthritis. A subsequent MRI showed findings likely \nconsistent with osteoarthritis. At a physical therapy exam on 13 October 2020, the claimant \nstated that there was no mechanism of injury associated with his right shoulder pain. His \nhistory of three right rotator cuff and labral repairs and left rotator cuff repair was noted at \nthat time. A right shoulder MRI scan on 22 August 2021 revealed chronic degeneration of \nthe superior labrum. \nThe claimant’s medical records do not appear to reflect a complaint about left \nshoulder pain possibly related to a work incident until 8 June 2021, nearly 18 months after \nhis supposed injury. At that visit he reported having to fill a ditch with dirt and quickly get \nout of it. Subsequent notes regard his shoulder condition as not traumatic.  \nAn operative report from 16 September 2021 states that the claimant reported \nworking in a hole and having to quickly get out, using both of his arms to push himself out \nof the hole. A clinic note from 15 October 2021 similarly relays that the claimant hurt his \nleft shoulder pushing himself out of a hole and that the pain had been onset for several \nmonths. A subsequent operative report, dated 2 December 2021, identifies bilateral \nshoulder pain after the claimant pushed himself out of a ditch or hole. \nThe claimant’s testimony about why his first doctor’s note after a supposed shoulder \ninjury made no mention of his claimed injury is suspect at best. The 10 January 2020 note, \nwhich reports no known injury, speaks only to elbow pain. The claimant, however, \nexplained that “if my elbows are hurting real bad, obviously, I can’t lift anything to see if \nmy shoulder hurts any worse.” [TR at 69.] He went on to suggest that physicians will only \naddress one patient complaint or injury per visit, or at least that they will only chart \ncomplaints about one condition per visit. These are not credible excuses for the lack of \n\nE. DAVIS- H101491 \n13 \n \ncontemporaneous medical evidence linking any sudden onset shoulder pain and his work \nfor the respondent-employer as it relates to this claim.  \nThe shoulder-related complaints and diagnoses that do eventually appear in \nevidence, long after the supposed incident of 19 December 2019, are related to chronic, \ndegenerative conditions, which is not surprising given the claimant’s age and his multiple \nprevious shoulder surgeries. Finding that the shoulder conditions the claimant eventually \nreported are related to his employment would require engaging in speculation and \nconjecture, which cannot serve as a substitute for proof. Dena Constr. Co. v. Herndon, 264 \nArk. 791, 575 S.W.2d 155 (1979). The claimant has, thus, failed to establish by a \npreponderance of the medical evidence that he suffered a compensable injury. His claim for \ninitial benefits associated with a compensable injury by specific incident must fail. \nB. THE CLAIMANT IS NOT ENTITLED TO MEDICAL BENEFITS. \n \nBecause the claimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable injury, his claim for medical benefits associated with a compensable \ninjury must likewise fail. \nC. THE RESPONDENTS’ ASSERTION OF THE SHIPPERS DEFENSE IS \nMOOT. \n \nBecause the claimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable injury, the respondents’ affirmative assertion of the Shippers \nDefense is moot and will not be addressed. \nCONCLUSION  \n Consistent with the Findings of Fact and Conclusions of Law set forth above, this \nclaim for initial benefits is denied and dismissed. \n IT IS SO ORDERED.   ______________________________________ \n       JayO. Howe \n       Administrative Law Judge","textLength":24883,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM No H101491 EARVIN DAVIS, JR., EMPLOYEE CLAIMANT vs. BERNHARD MCC, LLC, EMPLOYER RESPONDENT TRAVELERS PROPERTY CASUALTY INSURANCE COPMANY OF AMERICA, CARRIER RESPONDENT OPINION & ORDER FILED 4 APRIL 2025 This claim was heard before Arkansas Workers’ Compensation...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:4"],"injuryKeywords":["back","shoulder","neck","rotator cuff"],"fetchedAt":"2026-05-19T22:41:32.538Z"},{"id":"full_commission-H300809-2025-04-02","awccNumber":"H300809","decisionDate":"2025-04-02","decisionYear":2025,"opinionType":"full_commission","claimantName":"April Bennett","employerName":"Fayetteville Public Schools","title":"BENNETT VS. FAYETTEVILLE PUBLIC SCHOOLS AWCC# H300809 April 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Bennett_April_H300809_20250402.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Bennett_April_H300809_20250402.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H300809 \n \nAPRIL BENNETT, EMPLOYEE    CLAIMANT \n \nFAYETTEVILLE PUBLIC SCHOOLS,  \nEMPLOYER                                                                           RESPONDENT \n \nARKANSAS SCHOOL BOARDS  \nASSOCIATION, CARRIER/TPA                                             RESPONDENT \n \nOPINION FILED MARCH APRIL 2, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN BROOKS, Attorney at \nFayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JAMES A. ARNOLD II, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge: Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed August 12, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-\nhearing conference conducted on March 4, 2024, and \ncontained in an Amended Pre-hearing Order filed \nMarch 12, 2024, are hereby accepted as fact.  \n \n2. The claimant has failed to prove by a preponderance of \nthe evidence that she sustained a compensable \noccupational illness to her body as a whole due to \n\n \nBennett-H300809   2  \n \n \nexposure to mold in the workplace on or about \nFebruary 28, 2021. \n \n3. The claimant has failed to prove by a preponderance of \nthe evidence that she is entitled to medical treatment \nfor her alleged occupational illness due to exposure to \nmold in the workplace. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence the findings of fact made by the Administrative Law Judge \nare correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the August 12, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2542,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H300809 APRIL BENNETT, EMPLOYEE CLAIMANT FAYETTEVILLE PUBLIC SCHOOLS, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER/TPA RESPONDENT OPINION FILED MARCH APRIL 2, 2025 Upon review before the FULL COMMISSION in L...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.328Z"},{"id":"full_commission-H205774-2025-04-02","awccNumber":"H205774","decisionDate":"2025-04-02","decisionYear":2025,"opinionType":"full_commission","claimantName":"Tommy Jones","employerName":"Superior Chevrolet Siloam Springs","title":"JONES VS. SUPERIOR CHEVROLET SILOAM SPRINGS AWCC# H205774 April 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Jones_Tommy_H205774_20250402.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Jones_Tommy_H205774_20250402.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H205774 \n \nTOMMY E. JONES, EMPLOYEE    CLAIMANT \n \nSUPERIOR CHEVROLET SILOAM SPRINGS,  \nEMPLOYER                                                                           RESPONDENT \n \nCENTRAL ARKANSAS AUTO DEALERS SIF/ \nRISK MANAGEMENT RESOURCES, CARRIER/TPA          RESPONDENT \n \n \nOPINION FILED APRIL 2, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed November 18, 2024. In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-\nhearing conference conducted on June 24, 2024, and \ncontained in a Pre-hearing Order filed June 25, 2024, \nare hereby accepted as fact.  \n \n2. The respondent has successfully raised the Intoxication \nDefense and the claimant has been unable to \novercome the rebuttable presumption that his motor \n\nJones-H205774    2  \n \n \nvehicle accident was substantially occasioned by the \nuse of alcohol, illegal drugs, or prescription drugs used \nin contravention of physician’s orders. \n \n3. The claimant has failed to prove by a preponderance of \nthe evidence that he sustained compensable injuries to \nhis spleen, liver, collar bone, ribs, and left hand on or \nabout August 8, 2022.  \n \n4. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to medical treatment in \nthis matter.  \n \n5. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to temporary total \ndisability benefits in this matter.  \n \n6. The claimant has failed to prove by a preponderance of \nthe evidence that his attorney is entitled to an \nattorney’s fee in this matter. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence the findings of fact made by the Administrative Law Judge \nare correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the November 18, 2024 decision of \nthe Administrative Law Judge, including all findings and conclusions \ntherein, as the decision of the Full Commission on appeal.  \n  \n\nJones-H205774    3  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite concurs. \n \nCONCURRING OPINION \n  After my de novo review, I concur with the majority opinion finding \nthat Claimant failed to overcome the rebuttable presumption that his motor \nvehicle accident was substantially occasioned by the use of illegal drugs, \nbut write separately for the benefit of the Claimant.  \n Under Ark. Code Ann. § 11-9-102(B)(iv) a compensable injury does \nnot include: \n(a)   Injury   where   the   accident   was   substantially \noccasioned  by  the  use  of  alcohol,  illegal  drugs,  or \nprescription drugs used in contravention of physician’s \norders.  \n(b) The presence of alcohol, illegal drugs, or prescription \ndrugs used in contravention of a physician’s orders shall \ncreate   a   rebuttable   presumption   that   the   injury   or \naccident  was  substantially  occasioned  by  the  use  of \nalcohol,  illegal  drugs,  or  prescription  drugs  used  in \ncontravention of physician’s orders.  \n(...) \n(d)  An  employee  shall  not  be entitled  to  compensation \nunless it is proved by a preponderance of the evidence \n\nJones-H205774    4  \n \n \nthat  the  alcohol,  illegal  drugs,  or  prescription  drugs \nutilized in contravention of the physician’s orders did not \nsubstantially occasion the injury or accident.  \n \nOn the date of the accident, the medical records from St. Francis Health \nSystem indicate that Claimant tested positive for benzodiazepine and \ncannabinoid. The Claimant denied taking benzodiazepine, and it is not clear \nif this medication was administered in the emergency room pursuant to a \nphysician’s order. Therefore, I find that the presumption stated in Ark. Code \nAnn. § 11-9-102(B)(iv)(b) was not created by the presences of \nbenzodiazepine in the Claimant’s urine. The positive test for cannabinoid \npresents a different issue. The Claimant testified that he had a valid medical \nmarijuana card on the date of the accident. However, cannabinoid remains \na federally illegal drug pursuant to 21 U.S.C. § 801 et seq. Therefore, I must \nconcur with the majority and find that the presence of cannabinoid in the \nClaimant’s urine does create a rebuttable presumption that the work \naccident resulted from the use of the illegal substance. I find that the \nClaimant was unable to overcome this presumption and did not sustain a \ncompensable injury.   \n For the foregoing reasons, I concur with the majority but write \nseparately for the benefit of the Claimant.   \n                                                         _______________________________                                                                                           \n                                                       M. SCOTT WILLHITE, Commissioner","textLength":5718,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H205774 TOMMY E. JONES, EMPLOYEE CLAIMANT SUPERIOR CHEVROLET SILOAM SPRINGS, EMPLOYER RESPONDENT CENTRAL ARKANSAS AUTO DEALERS SIF/ RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED APRIL 2, 2025 Upon review befo...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.335Z"},{"id":"full_commission-H304058-2025-04-02","awccNumber":"H304058","decisionDate":"2025-04-02","decisionYear":2025,"opinionType":"full_commission","claimantName":"Jonathan Mohler","employerName":"Cross Creek Ranch, LLC","title":"MOHLER VS. CROSS CREEK RANCH, LLC AWCC# H304058 April 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Mohler_Jonathan_H304058_20250402.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Mohler_Jonathan_H304058_20250402.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H304058 \n \nJONATHAN MOHLER, \nEMPLOYEE \n \nCLAIMANT \nROBERT A. YOUNG III, \n(CROSS CREEK RANCH, LLC), \nEMPLOYER \n \nRESPONDENT \nMIDWEST INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 2, 2025  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL C. STILES, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe respondents appeal and the claimant cross-appeals an \nadministrative law judge’s opinion filed September 25, 2024.  The \nadministrative law judge found that the claimant proved he sustained a \ncompensable injury.  After reviewing the entire record de novo, the Full \nCommission finds that the claimant did not prove by a preponderance of the \nevidence that he sustained a compensable injury.       \nI.  HISTORY \n Robert Young testified in a deposition of record that he was the \nowner of the respondent-employer, Cross Creek Ranch, LLC.  Robert \n\nMOHLER - H304058  2\n  \n \n \nYoung described Cross Creek Ranch as “a cattle business.  We buy steers \nthat weigh 550, 600 pounds and graze them through the growing season, \nput additional weight on them and then we send them to a feedlot where \nthey’re finished.”  Mr. Young testified that the acreage of Cross Creek \nRanch was “a little over 1,000.”      \nThe record indicates that Jonathan Mohler, now age 50, became \nemployed with the respondents on or about August 3, 2020.  The claimant’s \nattorney examined Robert Young: \n Q.  And what did you hire Mr. Mohler to do? \nA.  Well, he’s a ranch hand.  He tends to the cattle.  They \nrequire vaccinations.  They require being de-bugged and de-\nflied, spraying them with insecticides and that sort of thing to \nkeep the critters off of them.  They would repair fence, build \nfence.  Just everything that needs to be done on the ranch.... \nQ.  How many head of cattle do you typically have? \nA.  Fourteen hundred.... \nQ.  What were his job duties? \nA.  His job duties.  Well, they varied every day.  They would \nbale hay.  They might be brush-hogging.  They might be \nputting out fertilizer.  They might be repairing fence.  It is a job \nthat requirements change daily. \nQ.  So did his job cause him to be in wooded areas on a \nregular basis or not? \nA.  Not so much wooded, although occasionally it would.  \nMore in just tall grass.... \nQ.  And what about lodging, did you provide lodging for him? \nA.  Yeah.  He had a house on the ranch.   \nQ.  And that was part of his employment package, if you will.  \nIs that correct? \nA.  Well, yes.  I wanted him on the ranch.  Cattle live there 24 \nhours a day and he is responsible for the cattle, so if a fence \nbroke and they were out on a country highway, he would be \nthere to get them up and get them in.   \n\nMOHLER - H304058  3\n  \n \n \nQ.  So would it be correct to say that he was basically a 24-\nhour-a-day employee? \nA.  He was available 24 hours. \nQ.  He is on call, basically? \nA.  Right.... \nQ.  So his job regularly required him to be in areas with tall \ngrass.  Is that correct? \nA.  That is correct.... \nQ.  Do you spend much time on the ranch itself? \nA.  I am usually out there at least once or two days a week.   \nQ.  Have you ever observed any ticks while you were out \nthere? \nA.  Yes.... \nQ.  You knew from personal experience if your kids went out \nthere on that ranch, there was a high probability that they \nwould get a tick bite.  Is that right or wrong? \nA.  That is correct.   \n \n The parties stipulated that the employee-employer-carrier \nrelationship existed at all pertinent times.  The claimant testified on direct \nexamination: \nQ.  Mr. Mohler, it has been agreed that you were in the \nemployment of Cross Creek Ranch owned by Robert Young \nback in 2022 and 2023.  Will you briefly explain what your job \nduties were at Cross Creek Ranch? \nA.  So on a day-to-day – the whole schedule is wrapped \naround the cattle and the livestock control what else I do.  So \nthe first thing I would do is tend the cattle in the morning and \nthen most of the time it was deal with the next issue.  If there \nis a tractor broke down or a fence broke, thing that we deal \nwith on a daily basis is the priority.... \nQ.  Now, your wife was talking about you having to repair a \nfence sometimes and that she thought that the fence repair \nwork was more involved than a lot of your other work.  Tell us \na little bit about what repairing the fence is involved. \nA.  Well, there is – in most of the pastures – I am trying to \nthink – I think they all have woods in them....The fence goes \ninto the woods maybe 30 yards in some places and other \nplaces it will – you have to – the trees fall down, so that’s a big \n\nMOHLER - H304058  4\n  \n \n \npart of fixing fence.  You get a windstorm, branches end up on \nthe fence and you have to repair that, and if the cattle find a \nweakness, so we try to fix it as quick as we can once we see \nit.   \nQ.  Do you agree with your wife’s description that repairing \nfence involved you basically wading through bushes and tall \ngrass and working in that environment? \nA.  Yes.... \nQ.  Now, you have filed a claim indicating that you got bitten \nby a tick on October 29\nth\n of 2022.  How do you know that you \ngot bit by a tick on that day? \nA.  I didn’t – I couldn’t think of an example, but somebody told \nme to look through my pictures in my phone.  I looked through \nmy pictures in my phone and realized I had gotten bit by a tick \non a day when I had repaired fence.  I took a picture of a tree, \nwhich was rubbed on is what was noteworthy about it, and \nthat is what helped me recall. \nQ.  Repeat what you said about the tree.  It was rubbed on.  Is \nthat correct? \nA.  Yes.  It was just unique.  You know, you see all over the \npastures, you see deer rubs on the side of those trees and \nthis one happened to be on the edge of where I stopped and \ntook that picture and I wouldn’t have ever remembered.  It \nwas significant that I took a picture.  Just neat that we had a \nlittle bigger tree that a deer had rubbed on, so it was just cool.   \nQ.  So that is the only thing that caused you to specifically be \nable to identify one time when you got bit by a tick.  Is that \nright? \nA.  Correct.   \nQ.  Were there other times that you got bit and you just don’t \nknow when they were? \nA.  Yes.  The only way I knew it was then was just because of \nthat picture.... \nQ.  Was there ever a time when you worked at Cross Creek \nRanch that you found a tick on your body when you were not \nactually on the premises? \nA.  No.... \n \n Courtney Mohler, the claimant’s wife, testified on direct examination: \nQ.  Mr. Mohler testified in a deposition that he believes he got \nbitten by a tick on October 29\nth\n of 2022 and that his memory \n\nMOHLER - H304058  5\n  \n \n \nwas jogged by a photograph.  Have you seen that \nphotograph? \nA.  Yes, I have.   \nQ.  Are you familiar with the location that that photograph \nshows? \nA.  I couldn’t tell you the exact tree, but if I remember \ncorrectly, the pasture is Graham 7 and I know where Graham \n7 is.     \n \n According to the record, the claimant treated at Washington Regional \nMedical Center on January 14, 2023: \nThe patient is a 48-year-old male who presents to the ED due \nto dizziness.  He reports this been (sic) ongoing for the last \nseveral days.  He saw his primary care physician and was \nnotably hypointensive per his report.  He reports he stopped \ntaking blood pressure medication about 1 month ago.  He has \nhad some nausea vomiting for the last 6 weeks.... \nMedical Decision Making \nThe patient presents to ED due to reported dizziness and low \nblood pressure.  He has also had some nausea vomiting and \nabdominal pain.  He is evaluated with a history and physical \nexam and labs and EKG and imaging.  His EKG does not \nreveal an obvious cause his symptoms (sic).  He is given IV \nfluids in the ED.  His lab work was reassuring.  The CT scan \nof his abdomen pelvis showed no acute intra-abdominal \npathology.  The chest x-ray showed no acute abnormality as \nwell.  He is given prescription for nausea medication....He \nwas stable time of being discharged to follow up with primary \ncare physician.   \n \n The assessment on January 14, 2023 was “1.  Dizziness.  2.  \nNausea and vomiting.  3.  Abdominal pain.”  The claimant was instructed to \n“Follow-up with primary care physician.  Return for any worrisome \nsymptoms.  Take medication as prescribed.”   \n\nMOHLER - H304058  6\n  \n \n \n The claimant began treating with Dr. Jantzen Slater on January 26, \n2023: \nJONATHAN MOHLER presents with complaints of sudden \nonset of frequent episodes of vomiting.  Episodes started 11 \nmonths ago.  He is currently experiencing vomiting.  \nSymptoms are worsening.  He states his symptoms worsened \nabout 5 months ago.  Pt was recently taken off his \nAmitriptyline by his doctor that he had been taking for the past \n10 years and his symptoms have started since stopping this \nmedication.  There are numerous other meds that have been \nchanged during this time.  Associated symptoms include \nnausea, headache, lightheadedness, fatigue and weakness.... \nLabs today to check food allergy panel, celiac panel & alpha \ngal panel.   \n \n The claimant underwent an “ALPHA GAL PANEL-91380” at WR \nFamily Clinic Farmington on January 26, 2023.  It was noted at that time, \n“Previous reports (JACI 2009; 123: 426-433) have demonstrated that \npatients with IgE antibodies to galactose-a-1,3 -galactose are at risk for \ndelayed anaphylaxis, angioedema, or urticaria following consumption of \nbeef, pork, or lamb.\"  The interpretation of the Alpha Gal Panel was “Very \nHigh Positive.”   \n It was reported at WR Family Clinic Fayetteville on March 1, 2023, \n“JONATHAN MOHLER presents with complaints of sudden onset of \nfrequent episodes of vomiting.  Episodes started 11 months ago.  He is \ncurrently experiencing vomiting.  Symptoms are improving.  He states he \nhasn’t vomiting (sic) in the past 2 weeks, but he has had severe fatigue and \ndiscomfort in his upper esophogus (sic).  Associated symptoms include \n\nMOHLER - H304058  7\n  \n \n \nnausea, headache, lightheadedness, fatigue and weakness.”  The \nassessment at that time was “1.  Chronic vomiting,” “2.  Depression with \nanxiety,” “3.  Allergy to alpha-gal,” “4.  Chronic pain,” and “5.  Headache.” \n Upon a referral by Dr. Slater, Dr. Tina Merritt examined the claimant \nat The Allergy Asthma Clinic of Northwest Arkansas on March 29, 2023: \nHe feels bad, can’t work, since the first of the year, and he is a \ncattle farmer[.]   \n  Reacting to cleaning chemical.... \nc/o fatigue Severe, not able to get out of bed.  Very pale, \ndiagnosed in Ft. Smith in Dec with anemia, iron and vitamin C \ngiven, was getting worse.  Colonoscopy and endoscopy Jan, \nlooking for a bleed, they said his stomach was inflamed, \nesophagus looked good, then 2 weeks later bothering him, \nnow the esophagus is better.  Worse if he tries to eat, better \nwith throwing up.... \nHistory of systemic reaction[.]  Difficulty swallowing.  \nDecreased blood pressure.  Dizziness.  Nausea or vomiting.  \nDiarrhea. \nReferred for alpha-gal allergy.  Other allergies include \nVancomycin HC1 SOLR, shrimp, and wheat (unable to add \nuncoded allergies).... \n5 days in the hospital on multiple antibiotics, septic, acute \nkidney failure and high calcium.  The referral was before this, \nfor Alpha-gal allergy....Not sure when tick bite, but he is a \ncattle farmer.  Weak and throwing up, started late \nOctober....In bed all day now.   \n \n The Social History also indicated, “Tick exposure:  May have pulled a \ntick off last summer 2022, does not recall ever having been bitten.”   \n Dr. Merritt’s assessments on March 29, 2023 were “1.  Dermatitis \ndue to ingested food,” “2.  Allergy to mammalian meats,” “3.  Illness, \nunspecified,” “4.  Encounter for screening for other metabolic disorders,” “5.  \n\nMOHLER - H304058  8\n  \n \n \nAllergic urticaria,” and “6.  Other spotted fevers.”  Dr. Merritt also noted on \nMarch 29, 2023, “Alpha-gal allergies develop after a person has been bitten \nby the Lone Star Tick in the United States.  2019 research found Alpha-gal \nin the saliva of both Lone Star ticks and Black-legged ticks.  Alpha-gal is not \nnaturally present in apes and humans, but is in all other mammals.”    \n The record contains the following notation: \n  LYME AB SCREEN \nTina Merritt Tue Apr 04 06:30:14 PM CDT 2023>Negative \nLyme screen and negative for other tick diseases tested.  Has \nappointment on the seventh but okay to give results and \nplease change the results from pending to normal on this lab \nSams, Heather 04/06/2023 4:17 PM > \nInformed patient[.]...Discussed with patient, needs to avoid \ndairy.   \n \n The claimant continued to follow up with Dr. Merritt.   \n A “WORKERS COMPENSATION – FIRST REPORT OF INJURY \nOR ILLNESS” was prepared on June 13, 2023.  The FIRST REPORT \nindicated that the DATE OF INJURY/ILLNESS was 8:00 a.m. on April 1, \n2023.  The DATE EMPLOYER NOTIFIED was April 1, 2023 and the DATE \nDISABILITY BEGAN was April 1, 2023.  The TYPE OF INJURY/ILLNESS \nwas “All Other Occupational Disease Injury.”  The PART OF BODY \nAFFECTED was “Insufficient info to properly identify.”  A box was checked \n“Yes” under the question, “DID INJURY/ILLNESS/EXPOSURE OCCUR ON \nEMPLOYER’S PREMISES?”  It was reported, “While IW was working with \ntick, IW was bitten and has caused incurable disease.”   \n\nMOHLER - H304058  9\n  \n \n \n Another “FIRST REPORT OF INJURY OR ILLNESS” was prepared \non June 20, 2023.  It was reported, “CLAIMANT RECEIVED AN \nINFECTION FROM A TICK BITE.”  The DATE OF INJURY/ILLNESS WAS \nJanuary 14, 2023 and the DATE EMPLOYER NOTIFIED was January 16, \n2023.     \n Dr. Slater corresponded on August 17, 2023: \nI am writing on behalf of Jonathan Mohler who, while \nemployed with his current workplace, suffered an unfortunate \nincident while on the job.  I am requesting your assistance in \ninitiating a Worker’s Compensation claim for Mr. Mohler due \nto a tick bite acquired during work hours, resulting in the \ndevelopment of an alpha-gal allergy.   \nUnfortunately, during his work, he was bitten by a tick.  \nSubsequent medical evaluation and tests have confirmed that \nMr. Mohler has developed an alpha-gal allergy as a direct \nresult of the tick bite.  This is thought to be at the root of his \ncurrent symptoms which have rendered him essentially \nincapacitated to his previous and presumably any occupation.   \nAlpha-gal allergy, also known as mammalian meat allergy, is \na serious condition that can lead to severe allergic reactions \nupon consumption of red meat and other mammalian \nproducts.  This condition poses a significant challenge to Mr. \nMohler’s quality of life and his ability to perform his job \neffectively.  He now requires constant vigilance and \nadjustments to his lifestyle to avoid potential triggers.   \nAt this juncture, the potential of full recovery is unknown, but \nMr. Mohler has seen some interval improvement in his \nfunctional status and is hopeful to return to productive \nemployment in the coming weeks and months.   \nEnclosed with this letter, please find all relevant medical \ndocumentation, medical assessments, and diagnostic test \nresults.  These documents substantiate the causal link \nbetween the tick bite, the subsequent development of the \nalpha-gal allergy, and the resulting medical treatment.... \n \n\nMOHLER - H304058  10\n  \n \n \n The parties deposed Robert Young on June 7, 2024.  The \nrespondents’ attorney examined Mr. Young: \nQ.  Have you ever known any employee to formally report a \ntick bite? \n  A.  No. \nQ.  At any point in time did Mr. Mohler contact you or your \ndesignated representative about saying, hey, I removed a tick \nlast night or last week? \nA.  No.   \nQ.  Okay.  Do you recall ever receiving any kind of report, \nverbal, written or made aware of a tick bite or tick removal \nfrom Mr. Mohler in late 2022? \nA.  No.   \nQ.  When was it that you were made aware that this illness of \nMr. Mohler’s may have originated from a tick or tick bite? \nA.  Well, he was ill for quite a while before he saw a doctor \nwho diagnosed the disease being a result of a tick bite.  I don’t \nremember what the dates were.   \nQ.  But you said originally you thought it was just the flu? \nA.  That’s right.   \nQ.  And when you first learned of the tick bite, what was Mr. \nMohler’s version of events about getting bit by a tick to cause \nthis? \nA.  I don’t understand the question. \nQ.  Well, did he say that there was any specific date involved \nor was he doing any specific activity? \nA.  No.... \nQ.  Has any specific day or event been associated with this \ntick bite from Mr. Mohler’s perspective? \nA.  No. \n \n Dr. Slater stated on June 17, 2024, “I am writing on behalf of \nJonathan Mohler who as you know is undergoing medical treatment for a \nwork-related injury.  Although his treatment has improved his symptoms, he \nremains unable to work due to his condition.”   \n\nMOHLER - H304058  11\n  \n \n \nA pre-hearing order was filed on June 19, 2024.  According to the \ntext of the pre-hearing order, the claimant contended, “The claimant \ncontends he sustained a compensable injury on October 29, 2022 as the \nresult of a tick bite.  Although the Commission’s file shows a January 14, \n2023 date of injury, said date was actually the date on which the claimant \nbecame disabled and his actual injury date should be October 29, 2022.  In \nthe alternative, claimant contends that if his condition is not due to the \nspecific tick bite of October 29, 2022, it is due to the cumulative effect of tick \nbites that he received during the course of his employment from January 1, \n2022 until his condition became disabling in January of 2023.  Further, \nclaimant contends that his job duties exposed him to ticks at a much greater \nfrequency than members of the general public are exposed to ticks; \ntherefore, even if his condition is determined to be an occupational disease \nit is still compensable in the same way that histoplasmosis is still \ncompensable for people who develop it as a result of working in the poultry \nindustry.  Claimant contends he is entitled to temporary total disability \nbenefits from January 15, 2023 until a date yet to be determined and \nreasonably necessary medical treatment.  In addition, claimant contends \nthat the respondent carrier is not entitled to any credit for payments that the \nrespondent employer has made; rather, the claimant should be ordered to \nreimburse the respondent employer to the extent that the claimant is \n\nMOHLER - H304058  12\n  \n \n \nawarded temporary total disability benefits, minus attorney’s fees, during \nany period of time for which the respondent employer paid full wages while \nthe claimant was temporarily totally disabled.  Claimant contends his \nattorney is entitled to an appropriate attorney’s fee.”   \n The parties contended that the respondents “have controverted this \nclaim in its entirety.”  The respondents contended, “The respondents \ncontend the claimant did not sustain a compensable injury in the form of an \noccupational disease while employed by the respondent employer.  The \nrespondents have denied and controverted this claim in its entirety.  \nAccordingly, the respondents have not and are not paying any benefits to or \non behalf of the claimant for his supposed occupational disease injury.  The \nclaimant’s physical problems and need for medical treatment, if any, are not \nrelated to his employment with the respondent employer.  Rather, the \nclaimant’s physical problems and need for medical treatment, if any, stem \nfrom an unrelated and/or pre-existing condition.  Also, the respondents \nassert A.C.A. §11-9-601, as there is no causal connection between the \nclaimant’s occupation for the respondent employer and the alleged \noccupational disease.  Additionally, no compensation is owed ‘for any \nordinary disease of life to which the general public is exposed.’  See A.C.A. \n§11-9-601(e)(3).  The respondents had no notice of the claimant’s alleged \ninjury until January 16, 2023.  Accordingly, the respondents are not liable \n\nMOHLER - H304058  13\n  \n \n \nfor any benefits whatsoever prior to January 16, 2023.  Also, if it is \ndetermined the claimant is entitled to any indemnity benefits with regard to \nthis claim, then the respondents are entitled to a credit for the respondent \ncarrier’s wage continuation payments to the claimant subsequent to \nJanuary 2023.”   \n The parties agreed to litigate the following issues: \n1. Compensability of injury to claimant in the form of a tick \nbite on October 29, 2022.  Alternatively, compensability of \ninjury due to the cumulative effect of tick bites that he \nreceived during the course of his employment from \nJanuary 1, 2022 until his condition became disabling in \nJanuary of 2023.   \n2. Related medical treatment. \n3. Temporary total disability benefits from January 15, 2023 \nthrough a date yet to be determined. \n4. Attorney’s fee.   \n5. Compensation rate. \n6. Notice.   \n \nDr. Joshua L. Kennedy corresponded with the respondents’ attorney \non July 29, 2024: \nMy name is Dr. Joshua L. Kennedy, MD, and I will provide \nexpert insight into alpha-gal syndrome (AGS).  I am currently \naffiliated with the Arkansas Children’s Research Institute and \nthe University of Arkansas for Medical Sciences (UAMS), \nspecializing in allergy and immunology.  I started at UAMS in \n2013 as an Assistant Professor and was promoted with tenure \nto Associate Professor in 2019.... \nThe plaintiff is a 50-year-old white male with h/o possible \nfibromyalgia who presented, based on the entirety of the \nhistory, with vomiting, heartburn, chronic fatigue, headache, \npalpitations, anemia, dizziness, tongue numbness, diarrhea, \nand possible alpha-gal (0.51→0.11) syndrome vs. mast cell \nactivation disorder vs. other primary GI disorder.... \n\nMOHLER - H304058  14\n  \n \n \nIn summary, the plaintiff has a low-positive IgE to alpha-gal \n(0.51 kU/L), which became even lower (0.11 kU/L) on a \nsecond test.  While there is very little dietary history in the \nnotes that were received, one can assume that the plaintiff \nwas eating red meat at the time of the first test.  At the visit \nwith Dr. Merritt on 3/23, he was told to avoid animal meat and \nby-products.  If the patient was avoiding these items, he \nshould no longer have symptoms associated with the alpha-\ngal syndrome (AGS).  Because of the low levels of IgE to \nalpha-gal and the poor response to the removal of alpha-gal \nfrom his diet, it is my opinion that other diagnoses should be \nconsidered, including diseases with a primary gastrointestinal \netiology.... \nWhile at the emergency department on 1/14/23, he has \ndocumented low blood pressure (75/45).  At that visit, there \nare no other symptoms that are discussed except dizziness (a \nsymptom of hypotension) and vomiting.  He is admitted and \ntreated for sepsis with antibiotics.  He returned later (1/17/23) \nwith high blood pressure (not a symptom of either MCAD/S or \nalpha-gal), jitteriness, and generalized flushing.  In this note, \nthere was no mention of rash.  On 3/23/23, the plaintiff \nreturned to the ED, where he again had documented low \nblood pressure (92/70), but the only other symptom \nmentioned was vomiting....It is also important to note that \nMCAD/S is not associated with tick bites.   \nIt is my medical opinion, within a reasonable degree of \nmedical certainty, that the patient should be able to avoid red \nmeat and animal by-products and live a normal quality life.  If \nthis does not happen, the diagnoses should be in question, or \nthe patient’s compliance with dietary measures should be \nevaluated.  It is my opinion, within a reasonable degree of \nmedical certainty, that the plaintiff should be capable of \nreturning to work if he is avoiding mammalian meat.  While I \nhave heard of patients who must stop working secondary to \nfood allergy because they work in the restaurant industry, \nthere are very few, if any, other instances where one might \nhave to stop working because of food allergy, including alpha-\ngal, as the symptoms subside when the allergen is avoided.  \nSome might suggest that “alpha-gal is everywhere,” therefore \nmaking it difficult to avoid; however, I have hundreds of \npatients who can live a good quality life with this disease who \nhave much higher IgE to alpha-gal than the plaintiff.   \n\nMOHLER - H304058  15\n  \n \n \nI am available to provide further details on my research and \nclinical findings regarding alpha-gal syndrome and to answer \nany questions that may arise.   \n \n  A hearing was held on August 5, 2024.  The respondents’ attorney \ncross-examined the claimant: \nQ.  Now, in your deposition you told me that this accident, this \nwork-related incident occurred on October 29, 2022.  Is that \nstill your testimony, your contention today? \nA.  That is when I can decisively recall being bit by that tick.  I \ncan’t give you other dates because I don’t have that picture, \nyou know.... \nQ.  And this tick that you found on October 29, 2022, in your \ndeposition you told me you found it on the back of your leg.  \nCorrect? \nA.  Yes.  It was on the back side of my knee, in that –  \nQ.  Which leg? \nA.  My right leg.... \nQ.  And upon finding or seeing this tick, did you immediately \nremove it? \nA.  Yes.... \nQ.  Can you state with certainty that that tick that you removed \non October 29, 2022, contained alpha-gal to introduce it into \nyour bloodstream? \nA.  I would have either burned the tick or –  \nQ.  What? \nA.  I would have either burned it, so there is no –  \nQ.  You can’t state what was inside of that tick, can you? \nA.  No.   \nQ.  Did you report this incident or this tick removal to anyone \nassociated with Cross Creek Ranch? \nA.  No. \n \n The claimant’s attorney re-examined the claimant: \nQ.  Now, I understand your testimony as being that the \nOctober 29, 2022 tick bite is the only tick bite that you can \nactually specifically identify date-wise and that is because of \nthe photograph? \nA.  Correct. \n\nMOHLER - H304058  16\n  \n \n \nQ.  But you have had multiple other tick bites during your \nemployment with Cross Creek Ranch? \nA.  Correct.   \n \n An administrative law judge filed an opinion on September 25, 2024.  \nThe administrative law judge found, among other things, that the claimant \nproved he sustained a compensable injury.  The administrative law judge \nawarded medical treatment and temporary total disability benefits.  The \nadministrative law judge found that the respondents were “entitled to a \ncredit for wages claimant was paid beginning January 14, 2023 and \ncontinuing through a date yet to be determined.”  The respondents appeal \nto the Full Commission and the claimant cross-appeals. \nII.  ADJUDICATION \nA.  Alleged Accidental Injury \nArk. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n(A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in the \ncourse of employment and which requires medical \nservices or results in disability or death.  An injury is \n“accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n \n A compensable injury must be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n\nMOHLER - H304058  17\n  \n \n \n2012).  Causation does not need to be established by objective findings, so \nlong as objective medical evidence establishes the injury’s existence and a \npreponderance of other nonmedical evidence establishes a causal relation \nto a work-related incident.  Bean v. Reynolds Consumer Products, 2022 \nArk. App. 276, 646 S.W.3d 655, citing Wal-Mart Stores, Inc. v. VanWagner, \n337 Ark. 443, 990 S.W.2d 522 (1999).     \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n An administrative law judge found in the present matter, “3.  \nClaimant has met his burden of proving by a preponderance of the \nevidence that he suffered a compensable injury in the form of a tick bite \nresulting in alpha-gal allergy.”  The Full Commission does not affirm this \nfinding.   \n The record indicates that the claimant became employed as a ranch \nhand for Cross Creek Ranch on or about August 3, 2020.  The claimant \nperformed a variety of activities on the respondent-employer’s ranch, \nincluding cattle work, fence repair, and hay baling.  The claimant’s work for \nthe respondents routinely required him to be in grassy and wooded areas.  \n\nMOHLER - H304058  18\n  \n \n \nRobert Young, the owner of Cross Creek Ranch, testified that ticks were \nprevalent on the property.   \n The claimant testified that he was bitten by a tick while performing \nemployment services on October 29, 2022.  The claimant testified that he \ndid not know he had been bitten until looking through pictures on his phone.  \nThe claimant testified, “I looked through my pictures on my phone and \nrealized I had gotten bit by a tick on a day when I had repaired fence.  I took \na picture of a tree, which was rubbed on is what was noteworthy about it, \nand that is what helped me recall.”  The claimant’s wife, Courtney Mohler, \nconfirmed that she had seen pictures of a tree but did not directly \ncorroborate the claimant’s testimony that he removed a tick from his right \nleg.  There is no probative evidence before the Commission demonstrating \nthat the claimant actually received a tick bite on or about October 29, 2022 \nor any other pertinent date.  The Full Commission recognizes that the \nstatute does not require, as a prerequisite to compensability, that the \nclaimant identify a precise time or numerical date upon which an alleged \naccidental injury occurred.  See Edens v. Superior Marble & Glass, 346 Ark. \n487, 58 S.w.3d 369 (2001).  Instead, the statute only requires that the \nclaimant prove that the occurrence of the injury is capable of being \nidentified.  Id. \n\nMOHLER - H304058  19\n  \n \n \n The Commission is not required to believe the testimony of the \nclaimant or any other witness, but may accept and translate into findings of \nfact only those portions of the testimony that are deemed worthy of belief.  \nMorelock v. Kearney Co., 48 Ark. App. 227, 894 S.W.2d 603 (1995).  In the \npresent matter, with regard to whether the claimant was bitten by a tick on \nor about October 29, 2022, the Full Commission is constrained to find that \nthe claimant was not a credible witness.  There was no probative evidence \nof record corroborating the claimant’s testimony that he was bitten by a tick \non or about October 29, 2022 or any other date.  Robert Young, the owner \nof respondent-employer Cross Creek Ranch, testified that the claimant \nnever reported a tick bite to him in 2022.  The evidence in the present \nmatter does not corroborate the existence of a tick bite.  See Bean, supra.   \n Moreover, the claimant initially did not inform the medical providers \nthat he had allegedly received a tick bite.  The claimant began treating at \nWashington Regional Medical Center on January 14, 2023.  The claimant \nreported that he had been suffering from dizziness, nausea, and vomiting \nsince he had stopped taking blood pressure medication one month earlier.  \nA physician assessed “1.  Dizziness,” “2.  Nausea and vomiting,” and “3.  \nAbdominal pain.”  There was no report of a tick bite.  The claimant began \ntreating with Dr. Slater on January 26, 2023.  Dr. Slater reported that the \nclaimant’s symptoms of nausea and vomiting had begun “11 months ago” \n\nMOHLER - H304058  20\n  \n \n \nwith no reference to an alleged tick bite.  The claimant underwent an \n“ALPHA GAL PANEL – 91380” at WR Family Clinic on January 26, 2023.  It \nwas noted that Alpha-Gal was related to “consumption of beef, pork, or \nlamb.”  There was no reference to a tick bite, and there was no report that \nthe claimant had sustained a tick bite. \n The first medical report of record that the claimant had allegedly \nbeen bitten by a tick occurred on March 29, 2023, over five months after the \ndate contended by the claimant, October 29, 2022.  Dr. Merritt noted at that \ntime, “Not sure when tick bite, but he is a cattle farmer.”  The Social History \non March 29, 2023 also indicated, “May have pulled a tick off last summer \n2022, does not recall ever having been bitten [emphasis supplied].”  It was \nalso reported on or about April 6, 2023, “Negative Lyme screen and \nnegative for other tick diseases tested [emphasis supplied].  The evidence \nof record does not demonstrate that the claimant contracted Alpha-Gal \nSyndrome as the result of being bitten by a tick at Cross Creek Ranch on \nOctober 29, 2022 or any other pertinent date.  The Commission’s authority \nto resolve conflicting evidence also extends to medical testimony.  Maverick \nTransp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000).  The \nCommission is entitled to review the basis for a doctor’s opinion in deciding \nthe weight and credibility of the opinion and medical evidence.  Id.  In the \npresent matter, the Full Commission attaches minimal evidentiary weight to \n\nMOHLER - H304058  21\n  \n \n \nDr. Slater’s opinion written August 17, 2023 that the claimant developed an \nalpha-gal allergy following an alleged tick bite at work.  The probative \nevidence of record does not corroborate Dr. Slater’s opinion.                 \n The Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that he sustained a “compensable injury” in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012).  The \nclaimant did not prove he sustained an accidental injury causing internal or \nexternal physical harm to the body.  The claimant did not prove that he \nsustained an injury which arose out of and in the course of employment, \nrequired medical services, or resulted in disability.  The claimant did not \nprove that he sustained an injury which was caused by a specific incident \nidentifiable by time and place of occurrence on October 29, 2022 or any \nother pertinent date.  Additionally, the claimant did not establish a \ncompensable injury supported by objective medical findings.  The claimant \ndid not prove that he sustained a tick bite at work, and the claimant did not \nprove he sustained Alpha-Gal Syndrome as the result of an alleged tick bite \nat work.   \nB.  Alleged Occupational Disease \nArk. Code Ann. §11-9-601(Repl. 2012) provides, in pertinent part: \n(e)(1)(A)  “Occupational disease”, as used in this chapter, \nunless the context otherwise requires, means any disease \nthat results in disability or death and arises out of and in the \ncourse of the occupation or employment of the employee or \n\nMOHLER - H304058  22\n  \n \n \nnaturally follows or unavoidably results from an injury as that \nterm is defined in this chapter.   \n(B)  However, a causal connection between the occupation or \nemployment and the occupational disease must be \nestablished by a preponderance of the evidence....   \n(3)  No compensation shall be payable for any ordinary \ndisease of life to which the general public is exposed.... \n(g)(1)  An employer shall not be liable for any compensation \nfor an occupational disease unless: \n(A)  The disease is due to the nature of an employment in \nwhich the hazards of the disease actually exist and are \ncharacteristic thereof and peculiar to the trade, occupation, \nprocess, or employment and is actually incurred in  his or her \nemployment[.]   \n \n An occupational disease is characteristic of an occupation, process, \nor employment where there is a recognizable link between the nature of the \njob performed and an increased risk in contracting the occupational disease \nin question.  Sanyo Mfg. Corp. v. Leisure, 12 Ark. App. 274, 675 S.W.2d \n841 (1984).  Occupational diseases are generally gradual rather than \nsudden in onset.  Hancock v. Modern Indus. Laundry, 46 Ark. App. 186, \n878 S.W.2d 416 (1994).   \n Ark. Code Ann. §11-9-603(a)(2)(A)(Repl. 2012) provides, “Written \nnotice shall be given to the employer of an occupational disease by the \nemployee, or someone in his or her behalf, within ninety (90) days after first \ndistinct manifestation thereof.”  The 90-day statutory period does not begin \nto run until the employee knows or should reasonably be expected to know \nthat he is suffering from an occupational disease.  Quality Service Railcar v. \nWilliams, 36 Ark. App. 29, 820 S.W.2d 878 (1991).  Failure to give notice \n\nMOHLER - H304058  23\n  \n \n \nshall not bar any claim if the employer had knowledge of the injury; of the \nemployee had no knowledge that the condition arose out of and in the \ncourse of employment; or if the Commission excuses the failure on the \ngrounds that, for some satisfactory reason, the notice could not be given.  \nArk. Code Ann. §11-9-701(b)(Repl. 2012).    \n An administrative law judge found in the present matter, “2.  \nClaimant’s claim for a compensation injury is an accidental injury, not an \noccupational disease.”  The claimant states on appeal, “The claimant \ncontended that his tick bite injury is the result of an occupational disease \ninjury, or in the alternative, it is due to a specific incident injury....As \nindicated above, the claimant also considers this tick bite and the \ndevelopment of AGS to be compensable as an occupational disease.”  The \nFull Commission finds that the claimant did not prove by a preponderance \nof the evidence that he sustained a compensable “occupational disease” in \naccordance with Ark. Code Ann. §11-9-601(Repl. 2012).   \n As we have discussed, the claimant became employed with the \nrespondents, Cross Creek Ranch, on or about August 3, 2020.  The \nclaimant’s work for the respondents routinely required him to work in \nwooded and grassy areas.  The claimant began receiving medical treatment \nat Washington Regional Medical Center on January 14, 2023.  The claimant \ncomplained of dizziness, nausea, and vomiting.  There was no reference in \n\nMOHLER - H304058  24\n  \n \n \nthe medical records to gradual or “cumulative tick bites.”  There was no \nprobative or physical evidence in the record which demonstrated that the \nclaimant ever became sick as the result of a tick bite or tick bites he \nallegedly sustained on the respondents’ premises.  The ALPHA GAL \nPANEL done on January 26, 2023 related the claimant’s symptoms to \n“consumption of beef, pork, or lamb.”  The evidence does not demonstrate \nthat the claimant became ill as the result of eating an animal which had \nbeen bitten by a tick.  The Full Commission also reiterates the April 6, 2023 \nmedical report which indicated, “Negative Lyme screen and negative for \nother tick diseases tested [emphasis supplied].”  The claimant was advised \nto “avoid dairy.”   \n The Full Commission reiterates that we have attached minimal \nevidentiary weight to Dr. Slater’s opinion that the claimant suffered from a \ntick bite “resulting in the development of an alpha-gal allergy.”  The \nprobative evidence of record does not corroborate the claimant’s contention \nthat his Alpha-Gal condition was \"due to the cumulative effect of tick bites \nthat he received during the course of his employment from January 1, 2022 \nuntil his condition became disabling in January of 2023.\"  A finding of a \ncompensable injury cannot be based on speculation and conjecture.  Smith-\nBlair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002).  In the present \nmatter, the Full Commission would be forced to resort to speculation and \n\nMOHLER - H304058  25\n  \n \n \nconjecture to find that the claimant proved he sustained a compensable \noccupational disease in accordance with Ark. Code Ann. §11-9-601(Repl. \n2012).   \n After reviewing the entire record de novo, the Full Commission \nreverses the administrative law judge’s finding that the claimant proved he \nsustained a compensable injury.  The Full Commission finds that the \nclaimant did not prove by a preponderance of the evidence that he \nsustained a compensable injury in accordance with Ark. Code Ann. §11-9-\n102(4)(Repl. 2012).  The claimant did not prove by a preponderance of the \nevidence that he sustained a compensable occupational disease in \naccordance with Ark. Code Ann. §11-9-601(Repl. 2012).  This claim is \nrespectfully denied and dismissed. \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n  The   ALJ   in   this   case   found   that   the   Claimant   proved   by   a \npreponderance of the evidence that he suffered a compensable injury in the \n\nMOHLER - H304058  26\n  \n \n \nform of a tick bite resulting in alpha-gal allergy, that Respondent is liable for \npayment  of  all  reasonable  and  necessary  medical  treatment  provided  in \nconnection with the Claimant’s compensable injury, and that Claimant has \nmet  his  burden  of  proving  by  a preponderance  of  the  evidence  that  he  is \nentitled to temporary total disability benefits beginning January 14, 2023 and \ncontinuing through a date yet to be determined.  After my de novo review of \nthe  record,  I  dissent  with  the  majority  and  would  concur  with  the  ALJ’s \nfindings regarding compensability but would find that Claimant sustained an \noccupational disease in the form of a tick bite resulting in an alpha-gal allergy \nrather than a specific incident injury.   \n Claimant began working for Respondent at Cross Creek Ranch in July \nof  2020.  Respondent’s owner, Robert Young III testified that he hired the \nClaimant as a ranch hand to tend cattle.  Young testified that Claimant was \nresponsible for anything that needed to be done on the ranch. Claimant was \nprovided with a home for he and his family to live in on the ranch.  Testimony \nfrom the Claimant, Courtney Mohler (Claimant’s wife), and Young all state \nthat ticks are prevalent on Cross Creek Ranch.  \nClaimant testified that he suffered a tick bite on October 29, 2022.  In \nNovember  2022, Claimant  began  vomiting  without  warning.  Ms. Mohler \ntestified that she began noticing Claimant was having new health issues in \nDecember of 2022. On January 14, 2023, Ms. Mohler took Claimant to the \n\nMOHLER - H304058  27\n  \n \n \nemergency room due to uncontrollable vomiting, stomach pain, and irritation \nin  the  throat  and  esophagus.  Claimant  followed  up  with  his  primary  care \nphysician,  Dr.  Jantzen  Slater,  who  tested  Claimant  for  alpha-gal  which  is \ndescribed as an allergy triggered by a tick bite.  Claimant was diagnosed with \nalpha-gal syndrome on February 7, 2023.  \nClaimant contended that his diagnosis of alpha-gal syndrome is an \noccupational disease resulting from a tick bite, I agree.  Occupational \ndisease “means any disease that results in disability or death and arises out \nof and in the course of the occupation or employment of the employee or \nnaturally follows or unavoidably results from an injury” Ark. Code Ann. § 11-\n9-601(e)(1)(A). Ark. Code Ann. § 11-9-601 does not define the distinction \nbetween “accidental injury” and “disease,” but a widely accepted distinction \nis that occupational diseases are generally gradual rather than sudden in \nonset.  Johnson v. Democrat Printing and Lithograph, 57 Ark. App. 274, 944 \nS.W.2d 138 (1997); Hancock v. Modern Indus. Laundry, 46 Ark. App. 186, \n878 S.W.2d 416 (1994).  Further “a worker must establish that his or her \noccupational disease came about as a matter of course as a natural \nconsequence or incident of distinctive conditions of his or her particular \nemployment.” Crossett Sch. Dist. V. Gourley, 50 Ark. App. 1, 899 S.W.2d \n482 (1995). \nAlpha-gal syndrome is:  \n\nMOHLER - H304058  28\n  \n \n \n[A]n allergic reaction to a type of sugar community called alpha-\ngal.  It is found in the meat and organ meats of mammals, such \nas cows, pigs, and sheep.  It may also be found in products that \ncome  from  animals,  such  as  gelatin,  medicines,  medicine \ncapsules,   some   milk   products,   vaccines,   and   cosmetics. \n(Claimant’s Exhibit 1, p. 95).  \n Further:  \nThis  allergy  is first  triggered  by a  tick  bite  from a  lone  star or \nblackleg tick.  These ticks bite animals, such as cows, pigs, or \nsheep, and pick up the alpha-gal sugar from their blood.  If this \nsame tick bites you, it may cause your body’s defense system \n(immune system) to produce antibodies to alpha-gal and cause \nthe allergic reaction.  Id. \n \n Claimant   became   symptomatic   in   November   2022   shortly   after \nsuffering  a  tick  bite  on  October  29,  2022.  Claimant  exhibited  additional \nsymptoms and health issues in December of 2022.  On January 14, 2023, \nClaimant  began  experiencing  such  uncontrolled  symptoms  of  alpha-gal \nsyndrome that he sought emergency treatment.  These unusual symptoms \nappear to be logically related to the tick bite.  Lastly, Claimant was living on \nthe  ranch  as  a  condition  of  his  employment  and  the  Respondent’s  own \nwitness admitted that ticks were prevalent.  As such, a tick bite resulting in \nthe alpha-gal syndrome appears to be a natural consequence or incident of \nthe distinctive conditions of Claimant’s employment.  \n Based  upon  the  credible  evidence  in  the  record,  I  find  that  the \nClaimant received a tick bite which caused him to experience the alpha-gal \nsyndrome.  I also find that due to the nature of Claimant’s employment he \nwas exposed to a greater risk of this disease than the general public.  I further \n\nMOHLER - H304058  29\n  \n \n \nfind that the Claimant’s symptoms and disability arose soon after the tick bite \nwith  nothing  to  suggest  any  alternate  explanation  for  his  condition  so  that \nthere is a logical connection between them.  Additionally, since an employee \nis not required to prove the source of an infection with absolute certainty, I \nfind that the Claimant met his burden of proof that he suffered a compensable \noccupational  disease  from  this  course  of  events  and  is  entitled  to all \nreasonable  and  necessary  medical  benefits required from the  tick bite and \nassociated symptoms.  \n Therefore, I dissent with the majority and would rule that the Claimant \nsuffered a compensable occupational disease as a result of a tick-bite and is \nentitled to associated medical benefits.   \nFor the reasons stated above, I respectfully dissent. \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":47099,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H304058 JONATHAN MOHLER, EMPLOYEE CLAIMANT ROBERT A. YOUNG III, (CROSS CREEK RANCH, LLC), EMPLOYER RESPONDENT MIDWEST INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back","knee"],"fetchedAt":"2026-05-19T22:29:44.364Z"},{"id":"alj-H000197-2025-04-01","awccNumber":"H000197","decisionDate":"2025-04-01","decisionYear":2025,"opinionType":"alj","claimantName":"David Calkin","employerName":"Medic One, LLC","title":"CALKIN VS. MEDIC ONE, LLC AWCC# H000197 April 01, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CALKIN_DAVID_H000197_20250401.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CALKIN_DAVID_H000197_20250401.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H000197 \nDAVID CALKIN, EMPLOYEE       CLAIMANT \n \nMEDIC ONE, LLC, EMPLOYER      RESPONDENT  \n \nONE REPUBLIC INSURANCE CO.,  \nCARRIER/TPA        RESPONDENT   \n \nOPINION FILED APRIL 1, 2025 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, on March 11, 2025. \nClaimant is Pro Se and did not appear. \nRespondents are represented by Michael C. Styles, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on March 11, 2025, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct.  The claimant contended that he sustained a work-related injury to his left shoulder \nand left knee and other “whole body” on October 20, 2019, when he fell off the back of \nthe ambulance landing on his side.  A First Report of Injury was filed on January 16, 2020, \nand  an AR -2  was  filed  on January 17, 2020.   An AR – C  was  filed on  April  20, 2020, \nstating that the claimant fell off the back of an ambulance while working, and sustained \ninjuries to his left shoulder, left knee, and other “whole body.”  The claimant was originally \nrepresented by Laura Beth York, who was allowed to withdraw by an Order of The Full \nCommission dated February 3, 2022.  No bona fide request for a hearing has been made \nwithin six (6) months of the filing of the claim.  A Motion to Dismiss for failure to prosecute \n\nDAVID CALKIN – H000197 \n2 \n \nwas  filed  on or  about December  27, 2024, and  the  claimant  failed  to  respond  to  the \nmotion.   \nA hearing  was  set  for March  11, 2025, in  regard to the Motion  to Dismiss.  The \nclaimant failed to appear at the hearing after proper notice to his last known address.  At \nthe time of the hearing, Michael C. Styles appeared on behalf of the Respondents and \nasked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould  be  granted  and  this  matter  should  be  dismissed  without  prejudice pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct at this time.   \nIT IS SO ORDERED: \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2784,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H000197 DAVID CALKIN, EMPLOYEE CLAIMANT MEDIC ONE, LLC, EMPLOYER RESPONDENT ONE REPUBLIC INSURANCE CO., CARRIER/TPA RESPONDENT OPINION FILED APRIL 1, 2025 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas, on March 11, 2025...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":["shoulder","knee","back"],"fetchedAt":"2026-05-19T22:41:28.391Z"},{"id":"alj-H404703-2025-04-01","awccNumber":"H404703","decisionDate":"2025-04-01","decisionYear":2025,"opinionType":"alj","claimantName":"Jayla Jackson","employerName":"Mo/go Logistics","title":"JACKSON VS. MO/GO LOGISTICS AWCC# H404703 April 01, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JACKSON_JAYLA_H404703_20250401.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACKSON_JAYLA_H404703_20250401.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404703 \n \nJAYLA JACKSON, EMPLOYEE       CLAIMANT \n \nMO/GO LOGISTICS, EMPLOYER     RESPONDENT  \n \nLUBU CASUALTY INSURANCE COMPANY,  \nCARRIER/TPA        RESPONDENT   \n         \nOPINION FILED APRIL 1, 2025 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, on April 1, 2025. \nClaimant is Pro Se and did not appear. \nRespondents are represented by Jarrod Parrish, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above  styled  matter  on April  1, 2025, in Little  Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct.  The claimant contended that she sustained a work-related injury while loading boxes \non  July 11,  2024, injuring her lower  and middle back.   A  C  Form was  filed  on  July 23, \n2024.  A  First  Report  of  Injury was  filed  on  July  16,  2024, and  an  AR -2  was  filed  on \nAugust 26, 2024, providing that it was a medical only claim.  No bona fide request for a \nhearing has been made within six (6) months of the filing of the claim.  A Motion to Dismiss \nfor failure to prosecute was filed on or about January 24th, 2025, and the claimant failed \nto respond to the motion.   \n\n2 \n \nA hearing  was  set  for April  1,  2025, in  regard  to  the Motion  to  Dismiss.  The claimant \nfailed  to  appear at  the  hearing after  proper  notice to  the  last  known  address  of  the \nclaimant, and after the Respondent’s representative called the hall for the claimant.  At \nthe time of the hearing, Jarrod Parrish appeared on behalf of the Respondents and asked \nthat the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould  be  granted  and  this  matter  should  be  dismissed  without  prejudice pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct at this time.   \nIT IS SO ORDERED: \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2556,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404703 JAYLA JACKSON, EMPLOYEE CLAIMANT MO/GO LOGISTICS, EMPLOYER RESPONDENT LUBU CASUALTY INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED APRIL 1, 2025 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas, on April 1...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:41:30.457Z"},{"id":"alj-H403028-2025-03-31","awccNumber":"H403028","decisionDate":"2025-03-31","decisionYear":2025,"opinionType":"alj","claimantName":"Leanna Fletcher","employerName":"Quapaw Care & Rehab Center, LLC","title":"FLETCHER VS. QUAPAW CARE & REHAB CENTER, LLC AWCC# H403028 March 31, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FLETCHER_LEANNA_H403028_20250331.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FLETCHER_LEANNA_H403028_20250331.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NO.: H403028 \n \n \nLEANNA FLETCHER, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nQUAPAW CARE & REHAB CENTER, LLC,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nINDEMNITY INSURANCE COMPANY OF NORTH \nAMERICA/SEDGWICK CLAIMS MANAGEMENT \nSERVICES, INC., CARRIER/TPA                                                                         RESPONDENT    \n                                                                                                                                \n          \nOPINION FILED MARCH 31, 2025   \n \nHearing held before Administrative Law Judge CHANDRA L. BLACK, in Hot Springs, Garland \nCounty, Arkansas. \n \nClaimant, Pro Se, did not appear at the hearing. \n \nRespondents represented  by the  Honorable Zachary  F.  Ryburn, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on March 28, 2025, in the present case to determine whether this claim \nfor initial Arkansas workers’ compensation should be dismissed for failure to prosecute under the \nprovisions of Ark. Code Ann. §11-9-702 (Repl. 2012), and/or Arkansas Workers’ Compensation \nCommission Rule 099.13.  The dismissal hearing in this claim of initial benefits was held pursuant \nto  the  ruling  in Dillard v. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287 \n(2004). \nAppropriate notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \n\nFLETCHER - H403028 \n \n2 \n \nThe record consists of March 28, 2025, hearing transcript and the documents held therein.  \nCommission’s Exhibit consists of eighteen (18) pages of pleadings,  letters,  forms,  and  other \ntracking documents which were provided to the Commission by the United States Postal Service \nconcerning  delivery  information  for  notices  sent  to  the Claimant; and Respondents’ Exhibit 1 \nconsists of two (2) pages. \n                                                             Procedural History \n On May 7, 2024, the Claimant’s attorney filed with the Commission a claim for Arkansas \nworkers’ compensation benefits via a Form AR-C.  Per this document, the Claimant alleged that \nshe sustained injuries during the course and in the scope of her employment with the respondent-\nemployer.  According  to  this document,  the  Claimant asserted  that  she  sustained  injuries  to  her \nhip, and ankle in a work-related accident on April 28, 2024.  The Claimant’s attorney requested \nonly initial benefits.  In fact, her attorney checked all the boxes for every possible initial workers’ \ncompensation benefit allowed under the law. \n  On June 7, 2024, the respondent-insurance-carrier filed with the Commission a Form AR-\n2 stating  their  position  on  this  claim  for workers’ compensation benefits.  Per  this  form,  the \nRespondents denied the claim in its entirety.  Specifically, the carrier stated that the Claimant’s \ninjury did not arise out of nor in the course of the Claimant’s employment.  \n Also on June 7, the Claimant’s counsel sent an email to the Commission asking that the \nclaim be assigned to a judge for a hearing.  As a result, the claim was assigned to my office for \nadjudication and the hearing process was started.  On August 21, 2024, I entered a prehearing order \nin the case, which outlined the stipulations, issues, and contentions of the parties.  Per said order \nthe case was scheduled for a hearing in Hot Springs, Arkansas on November 22, 2024.   \n\nFLETCHER - H403028 \n \n3 \n \nHowever, on September 19, 2024, the Claimant’s attorney sent an email to the Commission \nstating: “Claimant hereby withdraws her hearing request.  Please return this claim to general files.”  \nI canceled the hearing and returned the claim to the Commission’s general files on that same day. \n  Additionally, on September 19, the Claimant’s attorney filed a motion/request to withdraw \nas counsel of record for the Claimant in this matter.  On October 18, 2024, the Full Commission \nentered an order granting the motion for the Claimant’s attorney to withdraw from representing \nher in this matter.  \n Since this time, the Claimant has not tried to pursue or otherwise resolve her claim, nor has \nshe made a bona fide request for a hearing June 7, 2024.    \n Therefore,  on January  14,  2025, the  Respondents filed a Motion  to Dismiss,  with  the \nCommission, along with a  certificate of service confirming that they had  emailed a copy of the \nmotion to the Claimant.   \nOn January 21, 2025, my office sent a letter/notice to the Claimant informing her of the \nRespondents’ motion, and a deadline of twenty (20) days, for filing a written response.  Said letter \nwas  mailed  to  the  Claimant via both  first-class  and  certified  mail.  Per tracking information \nreceived  from  the  United  States  Postal  Service, on February  5,  they  were  unable  to find any \ndelivery  information  in  their  records  on  this  item.   Subsequently,  this  item  was  returned  to  the \nCommission marked “unclaimed.”  However,  the letter  sent via first-class  mail  has  not  been \nreturned to the Commission.   \n   There was no response whatsoever from the Claimant.   \n Therefore, per a Hearing Notice sent to the parties on February 11, 2025, the Commission \nnotified them that this matter had been set for a hearing on Respondents’ motion for dismissal of  \n\nFLETCHER - H403028 \n \n4 \n \nthis claim due to a lack of prosecution.  Said dismissal hearing was scheduled for Friday, March \n28, 2025, in Hot Springs, at the Transportation Depot. \nSaid notice  was  mailed to  the  Claimant  by  both  first-class  and  certified  mail.   Per \ninformation received from the Postal Service on February 27, 2025, they were unable to find any \ndelivery  information  in  their  records  for  this  item. Subsequently,  this  item  was  returned  to  the \nCommission marked “unclaimed.” However,  the  letter  sent via first-class  mail  has  not  been \nreturned to the Commission.  Under these circumstances, I find that the Claimant received proper \nnotice of the hearing. \n Thus far, there has been no response whatsoever from the Claimant.   \nNevertheless,  the  hearing  was  held  as  scheduled.  The Claimant did  not appear at the \nhearing.  However, the Respondents’ counsel appeared at the hearing and argued that the Claimant \nhas  failed  to prosecute  her claim for workers’ compensation benefits. More  specifically, the \nRespondents’ attorney noted that the Claimant has not taken any action to advance her claim since \nthe filing of the request for a hearing by her former attorney, which was done more than six (6) \nmonths ago, and ultimately ended with the request for a hearing being withdrawn.  Therefore, the \nRespondents’ attorney moved that this claim be dismissed pursuant to Ark. Code Ann. §11-9-702, \nand/or Commission Rule 099.13 without prejudice.  \n                                                        Adjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in the  \nRespondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4):  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n\nFLETCHER - H403028 \n \n5 \n \n \nAdditionally, Commission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A thorough review of the evidence before me shows that the Claimant has had ample time \nto pursue her claim for initial benefits, but she has failed to do so.  Specifically, the Claimant has \nnot  requested  a  hearing  or  otherwise made  any  effort to  prosecute  her claim for  workers’ \ncompensation benefits since her former counsel filed a request for hearing, which was done over \nmore than six (6) months ago.  Of significance, the Claimant has failed to oppose the motion, and \nshe has not responded to the notices of this Commission.   \nHere, the evidence preponderates that the Claimant has failed to timely prosecute this claim \nfor workers’ compensation benefits.  Under these circumstances, I am convinced that the Claimant \nhas  abandoned her claim for  workers’  compensation  benefits. Accordingly, based  on the \npreponderance of the evidence presented before me, I find that the Respondents’ motion to dismiss \nfor a lack of prosecution to be well taken.  I thus find that pursuant to the provisions of Ark. Code \nAnn.§11-9-702 (Repl.  2012), and Commission  Rule  099.13,  this  claim for initial workers’ \ncompensation benefits is hereby respectfully dismissed, without prejudice, to the refiling within \nthe limitation period specified under the law. \n\nFLETCHER - H403028 \n \n6 \n \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            4. The Respondents’ Motion to Dismiss this claim for want of prosecution is \nhereby granted, without prejudice, pursuant to the provisions of Ark. Code \nAnn. §11-9-702, and Commission Rule 099.13, to the refiling of the claim \nwithin the specified limitation period.  \n \n                                                           ORDER \n \nBased upon the foregoing findings, I have no alternative but to dismiss this claim for initial \nArkansas workers’ compensation benefits.  This dismissal is pursuant to Ark. Code Ann. §11-9-\n702, and Commission  Rule  099.13, without  prejudice, to  the  refiling  of  this claim  within the \nlimitation period specified under the Act. \n           IT IS SO ORDERED. \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":11579,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H403028 LEANNA FLETCHER, EMPLOYEE CLAIMANT QUAPAW CARE & REHAB CENTER, LLC, EMPLOYER RESPONDENT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA/SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED MARCH 31, 2025 Hearing held be...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["hip","ankle"],"fetchedAt":"2026-05-19T22:43:10.479Z"},{"id":"alj-H207279-2025-03-31","awccNumber":"H207279","decisionDate":"2025-03-31","decisionYear":2025,"opinionType":"alj","claimantName":"Betty Horton","employerName":"Penske Truck Leasing Co., Lp","title":"HORTON VS. PENSKE TRUCK LEASING CO., LP AWCC# H207279 March 31, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Horton_Betty_H207279_20250331.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Horton_Betty_H207279_20250331.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H207279 \n \nBETTY L. HORTON, \nEMPLOYEE                                                                                                              CLAIMANT \n \nPENSKE TRUCK LEASING CO., LP, \nEMPLOYER                                                                                                         RESPONDENT  \n \nGALLAGHER BASSETT SERVICES, INC., \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED MARCH 31, 2025 \n \nHearing conducted on Wednesday, March 12, 2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Betty L. Horton, Pro Se, of White Hall, Arkansas, did not appear in person at \nthe hearing.  \n \nThe Respondents were represented by the Honorable Melissa Wood, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents.  \nA hearing on the motion was conducted on March 12, 2025, in Little Rock, Arkansas.  Claimant, \naccording to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as  a  hiker/driver.  The  date  for \nClaimant’s alleged injury was on July 30, 2022. She reported her injury to Respondent/Employer \non  September  26,  2022.  Respondents  admitted  Respondents’  Exhibit  1, pleadings   and \ncorrespondence, consisting of 18 pages, Commission Exhibit 1, correspondence and certified mail \nreceipts,  consisting  of  8  pages.  Also  admitted  into  evidence  was  a  blue-backed  Form  AR-1, as \ndiscussed infra. \n\nHORTON, AWCC No. H207279 \n \n2 \n \nThe  record  reflects  on July 10,  2024,  a  Form  AR-C  was  filed  with  the  Commission by \nClaimant’s then-attorney,  Rainwater,  Holt  &  Sexton, purporting  that  Claimant injured  her  right \nshoulder, left knee, and other whole body. On August 11, 2023, Claimant’s attorney filed another \nForm AR-C that contained no material changes from the original filing. On October 10, 2022, a \nForm  AR-1 was filed with the Commission purporting that Claimant’s date of disability was \nSeptember  26, 2022.  On October  12,  2022,  a  Form  AR-2  was  filed  by  Respondents neither \naccepting nor denying compensability. On August 28, 2023, Carol Worley, entered her appearance \nas attorney of record for the Respondents. Claimants counsel, Laura Beth York of Rainwater, Holt, \nand  Sexton,  filed  a  Motion  to  Withdraw as  Claimant’s  Counsel  on  October  17,  2024. The \nCommission entered an Order granting that motion on October 30, 2024. \nThe Respondents filed a Motion to Dismiss on November 12, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The  Claimant  was  sent,  certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss from my office on November 18, 2024, to her last known address. \nThe Claimant responded to the motion by requesting a hearing, in writing, on December 5, 2024. \nConsidering the hearing request, I decided, on December 12, 2024, to hold the motion in abeyance. \nPre-hearing questionnaires were sent out December 13, 2024.  \nOn January 8, 2025, Claimant sent an email to the Commission stating that she has decided \nto drop her claim since she was not able to retain legal counsel. As a result, I reinstituted the Motion \nto Dismiss and sent out the notice letter certified and regular U.S. Mail on January 13, 2025. The \ncertified  motion  notice  was  unclaimed  by  Claimant  as  noted  on  the January 29,  2025,  return \nreceipt. The Claimant did not respond to the Motion, in writing, as required. Thus, in accordance \nwith  applicable  Arkansas  law,  the  Claimant  was  mailed  due  and  proper  legal  notice  of \nRespondents’ Motion to Dismiss hearing date at her current address of record via the United States \n\nHORTON, AWCC No. H207279 \n \n3 \n \nPostal  Service  (USPS), First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-\nClass Mail, on February 5, 2025. The certified notice was claimed on February 21, 2025, according \nto the return  receipt dated February 21, 2025. Thus, the hearing took place on March 12, 2025. \nAnd as mentioned before, the Claimant did not show up to the hearing. \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the March 12, 2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \n\nHORTON, AWCC No. H207279 \n \n4 \n \nConsistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. The certified hearing notice sent \nto the Claimant’s address of record was claimed on  February  21,  2025.  Thus,  I  find  by  the \npreponderance of the evidence that reasonable notice was given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant has not taken any action to \nprosecute her claim since her counsel of record, Ms. York, withdrew from her case on October 30, \n2024. The Claimant followed up this inaction with an email sent on January 8, 2025, stating she \nhas decided to drop her claim since she cannot retain legal counsel. Based on her email, she has \nno desire to prosecute this claim, and so far, has not. Therefore, I do find by the preponderance of \nthe  evidence  that  Claimant  has  failed  to  prosecute  her claim. Thus, Respondents’ Motion to \nDismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      _____________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6925,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H207279 BETTY L. HORTON, EMPLOYEE CLAIMANT PENSKE TRUCK LEASING CO., LP, EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MARCH 31, 2025 Hearing conducted on Wednesday, March 12, 2025, before the Arkansa...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["shoulder","knee"],"fetchedAt":"2026-05-19T22:43:12.548Z"},{"id":"alj-H404293-2025-03-27","awccNumber":"H404293","decisionDate":"2025-03-27","decisionYear":2025,"opinionType":"alj","claimantName":"Carmelina Juan","employerName":"Scott Queen, LLC","title":"JUAN VS. SCOTT QUEEN, LLC AWCC# H404293 March 27, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JUAN_CARMELINA_H404293_20250327.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JUAN_CARMELINA_H404293_20250327.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404293 \n \nCARMELINA JUAN, Employee CLAIMANT \n \nSCOTT QUEEN, LLC, Employer RESPONDENT \n \nACCIDENT FUND INS. CO., Carrier RESPONDENT \n \n \n \n AMENDED OPINION FILED MARCH 27, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   GREGORY   K.   STEWART   in \nSpringdale, Washington County, Arkansas. \n \nClaimant unrepresented and appearing pro se. \n \nRespondents  represented  by KAREN  H.  MCKINNEY,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \nThis case comes on for review following a hearing on respondent’s Motion to \nDismiss. \nClaimant was involved in a motor vehicle accident while working for respondent \non  June  11,  2024.  On  July  3,  2024,  a  Form  AR-C  was  filed  by  Attorney  Peoples  on \nbehalf of the claimant. The respondent accepted this claim as a medical only claim. No \nfurther  action  was  taken  and  on  November  22,  2024,  Attorney  Peoples’  Motion  to \nWithdraw as Counsel was granted by an order filed by the Full Commission. Thereafter, \nrespondent filed its Motion to Dismiss on January 3, 2025. A hearing was scheduled on \nthe respondent’s motion for March 12, 2025, and notice was sent to claimant by certified \nmail.  \n\nJuan – H404293 \n \n-2- \nClaimant  appeared  at  the  hearing  and  indicated  that  she  did  not  want  her  case \ndismissed  but  instead  was  simply  asking  for  payment  of  her  medical  bills.  Attorney \nMcKinney  indicated  that  respondent  would  pay  the  medical  bills  if  they  are  related  to \nclaimant’s June 11, 2024, accident. Claimant has agreed to provide Attorney McKinney \nwith copies of the unpaid medical bills. If those bills are not paid, claimant may request \na hearing at that time.  \nAfter my review of the respondent’s motion, the claimant’s response indicating \nthat  she  does  not  want  her  claim  dismissed  at  this  time  but  does  want  payment  of \nmedical  bills,  as  well  as  all  other  matters  properly  before  the  Commission,  I  find  that \nrespondent’s Motion to Dismiss this claim should be and hereby is denied. \n IT IS SO ORDERED. \n \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2246,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404293 CARMELINA JUAN, Employee CLAIMANT SCOTT QUEEN, LLC, Employer RESPONDENT ACCIDENT FUND INS. CO., Carrier RESPONDENT AMENDED OPINION FILED MARCH 27, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkans...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:43:06.338Z"},{"id":"alj-H406133-2025-03-27","awccNumber":"H406133","decisionDate":"2025-03-27","decisionYear":2025,"opinionType":"alj","claimantName":"Ronald Seay","employerName":"Collier Drug Stores, Inc","title":"SEAY VS. COLLIER DRUG STORES, INC. AWCC# H406133 March 27, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SEAY_RONALD_H406133_20250327.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SEAY_RONALD_H406133_20250327.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H406133 \n \nRONALD SEAY, Employee CLAIMANT \n \nCOLLIER DRUG STORES, INC., Employer RESPONDENT \n \nAUTO-OWNERS INS. CO., Carrier RESPONDENT \n \n \n \n AMENDED OPINION FILED MARCH 27, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   GREGORY   K.   STEWART   in \nSpringdale, Washington County, Arkansas. \n \nClaimant  represented  by JARID  M.  KINDER,  Attorney  at  Law, Fayetteville,  Arkansas, \nthough not attending hearing. \n \nRespondents  represented  by RICK  BEHRING,  JR.,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n \nThis case comes on for review following a hearing on respondent’s Motion to \nDismiss. \nOn September 20, 2024, Attorney Kinder on claimant’s behalf filed a Form AR-C \nalleging claimant has suffered a compensable injury on March 12, 2024, and requesting \ncompensation  benefits.  The  parties  engaged  in  some  discovery  and  a  hearing  was \neventually  requested.  A  prehearing  conference  was  conducted  on  December  4,  2024, \nand  a  hearing  scheduled  for  February  12,  2025.  On  February  3,  2025,  claimant \nwithdrew  his  hearing  request  and  asked  that  the  file  be  returned  to  General  Files.  On \nFebruary  6,  2025,  respondent  filed  a  Motion  to  Dismiss.  By  email  dated  February  14, \n\nSeay – H406133 \n \n-2- \n2025, Attorney Kinder indicated that claimant had no objection to the Motion to Dismiss \nand waived his right to a hearing. \nA hearing on the respondent’s Motion to Dismiss was scheduled for March 12, \n2025.  Notice  of  the  hearing  was  sent  to  claimant  by  certified  mail  and  delivered  on \nFebruary  20,  2025.  On  the  date  of  the  hearing,  claimant  appeared  at  the  Springdale \noffice but indicated that he had no objection to the dismissal of the claim and stated that \nhe had other places to be if his presence was not required at the hearing. As a result, \nclaimant did not attend the hearing.  \nAfter my review of the respondent’s motion, the claimant’s response thereto, and \nall  other  matters  properly  before  the  Commission,  I  find  that  respondents  motion  to \ndismiss  this  claim  should  be  and  hereby  is  granted.  This  dismissal  is  pursuant  to \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":2435,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H406133 RONALD SEAY, Employee CLAIMANT COLLIER DRUG STORES, INC., Employer RESPONDENT AUTO-OWNERS INS. CO., Carrier RESPONDENT AMENDED OPINION FILED MARCH 27, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:43:08.403Z"},{"id":"alj-H007009-2025-03-26","awccNumber":"H007009","decisionDate":"2025-03-26","decisionYear":2025,"opinionType":"alj","claimantName":"Carl Holden","employerName":"Bloom Mg’t, Inc","title":"HOLDEN VS. BLOOM MG’T, INC. AWCC# H007009 March 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HOLDEN_CARL_H007009_20250326.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOLDEN_CARL_H007009_20250326.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H007009 \n \n \nCARL L. HOLDEN,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nBLOOM MG’T, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nTRAVELERS CASUALTY INS. CO. OF AMERICA/ \nTRAVELERS CAS. INS. CO. \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                     \n \nOPINION FILED MARCH 26, 2025, DENYING THE RESPONDENTS’ MOTION TO \nDISMISS WITHOUT PREJUDICE \n \nHearing conducted on Tuesday,  March  25,  2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Carl L. Holden, pro se, of Little Rock, Pulaski County, Arkansas, appeared in \nperson at the hearing. \n \nThe respondents were represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n        A  hearing was  conducted  on Tuesday,  March  25,  2025,  to  determine  whether  this  claim \nshould  be  dismissed  for  lack  of  prosecution  pursuant  to Commission Rule  099.13  (2025 Lexis \nReplacement). \n       The respondents filed a motion to dismiss this claim without prejudice for lack of prosecution \nand failure and/or refusal to comply with discovery via a letter dated January 23, 2025 (MTD), \nwhich  the  Commission  received  and  file-marked  on  January  28,  2025.  The  Commission’s file \ncontained an incorrect address for the claimant, but eventually the Commission provided due and \nlegal notice of both the respondents’ letter MTD as well as timely notice of the subject hearing \n\nCarl L. Holden, AWCC No. H007009 \n2 \n \nwhich is evidenced by, among other things, the fact the claimant appeared in person at the subject \nhearing.  (Commission  Exhibits  1  and  2; Respondents’ Exhibit 1; and Hearing  Transcript).  The \nclaimant testified he never received a copy of the respondents’ discovery requests which it appears \nwere sent to the incorrect address reflected in the Commission’s file, which incorrect address now \nhas been corrected.  \n        The  claimant  testified  he had  sustained  an  injury  to  his  right  ankle  in  October  of  2019  for \nwhich he had undergone four (4) surgeries which resulted in him having plates and screws inserted \nin his right ankle. The respondents accepted this injury as compensable and paid both medical and \nindemnity benefits. The claimant testified he last saw his treating physician sometime in late 2023 \nor early 2024, and last received indemnity benefits sometime in the summer of 2024. He said he \nwas  supposed  to  have  a  follow-up  appointment  with  his  treating  physician,  Dr.  Robert  Martin, \nsometime in 2024, and that Dr. Martin had never released him from his care. (Hearing Transcript).  \n       The claimant further testified that before he had a chance to see Dr. Martin for the follow-up \nvisit  he  had  sustained  another  fall,  which  he  alleged  had  occurred  while  he  was  still  under  Dr. \nMartin’s care, and for which he apparently presented  himself to an emergency  room  (ER)  for \nevaluation. He apparently never saw Dr. Martin for the follow up either before or after this fall.  \nHe said he experienced “pain and popping” after this fall, and he wanted to see a doctor to ensure \nhe had not reinjured his right ankle. He alleged he had asked Travelers to allow him to return to \nsee a doctor for evaluation of his right ankle, but that Travelers told him they would not pay for \nthe  visit. Finally,  the  claimant  testified  he  had  filed  for  and  was  now  drawing  social  security \ndisability  (SSD)  benefits  based  solely  on  his  right  ankle  condition,  and  that  he  had  applied  for \nMedicaid. In summary, the claimant objected to the respondents’ MTD on the grounds he wanted \nto see a doctor for a current evaluation of his right ankle condition at the respondents’ expense, \n\nCarl L. Holden, AWCC No. H007009 \n3 \n \nand  because  he  alleged  he  never  received  the  respondents’  discovery  requests.  (Hearing \nTranscript). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion \nto dismiss. Rather than recite a detailed analysis of the record, suffice it to say the preponderance \nof  the  evidence  introduced  at  the  hearing and  contained  in  the  record conclusively  reveals  the \nclaimant has timely and appropriately objected to the dismissal of his claim at this time. \n        Therefore,  after a thorough  consideration  of  the  facts,  issues,  the applicable  law, the \nrepresentations of the claimant, and other relevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of the respondents’ letter MTD filed with the \nCommission  on January  28,  2025,  as  well  as  notice  of  the  date,  time,  and  place  of  the \nsubject hearing, the claimant appeared in person at the hearing and objected to the dismissal \nof his claim.  \n \n3. Therefore, the respondents’ letter MTD without prejudice filed January 28, 2025, should \nbe and hereby is respectfully DENIED at this time. \n \n4. The ALJ’s office shall mail the parties the prehearing information documents and start the \nprocess concerning the issue of the claimant’s entitlement, if any, to additional medical \ntreatment, as well as any and all other issues the parties deem ripe for litigation.  \n \n5. The respondents shall propound their discovery requests to the claimant, and the claimant \nand/or his attorney, should he choose to retain one, shall respond to them in the manner \n\nCarl L. Holden, AWCC No. H007009 \n4 \n \nand time period prescribed by law. Failure to do so may result in the dismissal of this claim \nfor failure to cooperate in the discovery process. \n \n        THE CLAIMANT IS STRONGLY ENCOURAGED TO RETAIN THE SERVICES OF \nAN ATTORNEY TO REPRESENT HIM IN THIS MATTER. THE CLAIMANT ALSO IS \nSTRONGLY ENCOURAGED TO CALL THE COMMISSION’S LEGAL ADVISORS’ \nDIVISION  AT  1-800-250-2511  IF  HE  HAS  ANY  QUESTIONS  CONCERNING  HIS \nCLAIM AND/OR THE HEARING PROCESS. \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n \n\nCarl L. Holden, AWCC No. H007009 \n5","textLength":7567,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H007009 CARL L. HOLDEN, EMPLOYEE CLAIMANT BLOOM MG’T, INC., EMPLOYER RESPONDENT TRAVELERS CASUALTY INS. CO. OF AMERICA/ TRAVELERS CAS. INS. CO. CARRIER/TPA RESPONDENT OPINION FILED MARCH 26, 2025, DENYING THE RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDI...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:43:04.273Z"},{"id":"alj-H403580-2025-03-24","awccNumber":"H403580","decisionDate":"2025-03-24","decisionYear":2025,"opinionType":"alj","claimantName":"Shamara Wheeler","employerName":"Amazon.Com, Inc","title":"WHEELER VS. AMAZON.COM, INC. AWCC# H403580 March 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WHEELER_SHAMARA_H403580_20250324.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WHEELER_SHAMARA_H403580_20250324.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H403580 \n \nSHAMARA WHEELER, EMPLOYEE        CLAIMANT \n \nAMAZON.COM, INC., EMPLOYER                      RESPONDENT \n \nAMERICAN ZURICH INSURANCE CO./ \nSEDGWICK CLAIMS MANAGEMENT, CARRIER/TPA        RESPONDENT \n  \n \n \nOPINION FILED 24 MARCH 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 19 March 2025 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nNewkirk & Jones, Mr. Rick Behring, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 19 March 2025. This case relates to an accepted claim of a specific \ninjury occurring on 10 October 2023. Two exhibits were entered into the record at the \nhearing. Commission’s Exhibit No 1 is a one-page proof of delivery form for a Certified \nLetter sent by the Commission to the claimant. Respondents’ Exhibit No 1 consists of 16 \npages of forms, pleadings, and correspondence relating to the claim. \nOn 4 June 2024 the claimant filed a Form AR-C through counsel that described a \nright knee injury. A First Report of Injury and a Form AR-2 were filed by the respondents \non 10 June 2024. Those forms indicated that a right knee injury had been accepted and that \nthe respondents were paying benefits.  \nOn 24 October 2024, the claimant’s attorney sought leave to withdraw from the case. \nOn 6 November 2024, the Full Commission entered an order granting that request. \n\nS. WHEELER- H403580 \n2 \n \nThe respondents filed the immediate motion on 17 December 2024. Their motion \ncites Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) and Commission Rule 099.13 (“Rule \n13”) as grounds for a dismissal. They argued (1) that all appropriate benefits had been paid, \n(2) that the AR-C filed with the Commission only sought additional benefits, and (3) that \nthe claimant had not made a bona fide hearing request. They further state that a two \npercent (2%) permanent impairment rating was accepted and paid to the claimant shortly \nafter Dr. Joel Smith released her at maximum medical improvement on 16 August 2024. \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail, on 19 December 2024 to the \naddress provided on the AR-C. After no response or objection was received by my office, a \nnotice of a hearing on that motion was sent in the same fashion on 27 January 2025. The \nhearing was set for 19 February 2025; but proceedings for that day were cancelled due to \ninclement weather. Notice of the hearing’s rescheduling was sent on 21 February 2025. \nWhen mailings are returned to the AWCC as not accepted or undeliverable, those mailings \nare appended to the claim’s file. This file contains no returned mailings. A Proof of Delivery \nform dated 27 February 2025 was provided to the Commission by the United States Postal \nService. That form was admitted to the record as Commission’s Exhibit No 1. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on that motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute a claim \nunder Rule 13. \n \n\nS. WHEELER- H403580 \n3 \n \n4. The Motion to Dismiss is hereby granted; this claim for additional benefits is \ndismissed without prejudice under Rule 13. \n \nDISCUSSION \nThe respondents appeared on 19 March 2025, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the \nrecord reflects no bona fide request for a hearing on an issue ripe for litigation in this claim. \nThe claimant did not respond to the motion or appear at the hearing to argue against the \ndismissal of his claim. The respondents offered a number of the documents noted above into \nthe record which, collectively, were admitted as Respondents’ Exhibit No 1.  \nOur Rule 13 provides for a dismissal for failure to prosecute an action upon \napplication by either party and reasonable notice. Here, the claimant’s injury was accepted \nas compensable and medical and indemnity benefits, including a two percent (2%) \nimpairment rating, were paid. The claimant has not made a bona fide hearing request on \nany additional benefits or taken any other action towards prosecuting her claim. \n The evidence demonstrates that both parties were provided reasonable notice of the \nhearing and that no action has been taken on the claim for additional benefits since the \nfiling of the AR-C on 4 June 2024. Accordingly, a dismissal under Rule 13 is appropriate. \nBecause of this finding, the arguments made under § 11-9-702 will not be addressed. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":5232,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H403580 SHAMARA WHEELER, EMPLOYEE CLAIMANT AMAZON.COM, INC., EMPLOYER RESPONDENT AMERICAN ZURICH INSURANCE CO./ SEDGWICK CLAIMS MANAGEMENT, CARRIER/TPA RESPONDENT OPINION FILED 24 MARCH 2025 Heard before Arkansas Workers’ Compensation Commission (“the Co...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:43:02.132Z"},{"id":"alj-H402162-2025-03-21","awccNumber":"H402162","decisionDate":"2025-03-21","decisionYear":2025,"opinionType":"alj","claimantName":"Scarlett Acuna","employerName":"Aldi, Inc","title":"ACUNA VS. ALDI, INC. AWCC# H402162 March 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ACUNA_SCARLETT_H402162_20250321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ACUNA_SCARLETT_H402162_20250321.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H402162 \n \nSCARLETT R. ACUNA, EMPLOYEE        CLAIMANT \n \nALDI, INC. EMPLOYER                          RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nBROADSPIRE SERVICES, CARRIER/TPA          RESPONDENT  \n \n \nOPINION FILED 21 MARCH 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 5 March 2025 in Little Rock, Arkansas. \n \nThe pro se claimant failed to appear. \n \nLedbetter, Arnold, Cogbill & Harrison, Mr. Scott Zuerker, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 5 March 2025. This case relates to an accepted compensable injury \nsustained on or about 26 January 2024. The hearing record consisted of: Respondents’ \nExhibit No 1 (their motion), Respondents’ Exhibit No 2 (the 22 January 2025 hearing notice \nletter), and Respondents’ Exhibit No 3 (the 20 February 2025 hearing notice letter). I have \nblue-backed the First Report of Injury, two AR-2 Forms, a one-page letter from the \nclaimant, and a returned Certified Letter to this opinion. In accordance with Sapp v. Tyson \nFoods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, these documents are being \nserved on the parties in conjunction with this opinion. \nA First Report of Injury was filed on 29 March 2024, indicating a lower back strain. \nOn 3 April 2024, the respondents filed a Form AR-2 in which they represented that they \nhad accepted the injury as compensable and were paying benefits. On 10 May 2024, the \n\nACUNA- H402162 \n2 \n \nclaimant filed a letter that stated, “I am requesting a hearing.” An amended Form AR-2\n1\n \nwas also filed on 10 May 2024 noting adjustments to the average weekly wage and \ntemporary total disability (TTD) benefit rate. As noted above, those forms and the \nclaimant’s letter are blue-backed to this opinion. \nOn 11 November 2024, the respondents filed the immediate motion seeking a \ndismissal of the claim for want of prosecution, citing Ark. Code Ann. § 11-9-702(a)(4) (Repl. \n2012) and AWCC Rule 099.13. Therein, they argued that more than six months had passed \nwithout a bona fide request for a hearing on an issue ripe for litigation. They also argued \nthat the claimant’s failure to appear via telephone for a prehearing conference that was \nscheduled for 1 October 2024 was evidence of her lack of prosecuting a claim. Additionally, \nthey argued that the claimant failed to file a Form AR-C, the means by which formal claims \nfor benefits are made to the AWCC.   \n Notice of the respondents’ motion was sent to the claimant, consistent with AWCC \npractices, via First Class Mail and Certified Mail, on 11 December 2024. After no response \nor objection was received by my office, a notice of a hearing on that motion was sent in the \nsame fashion on 22 January 2025. The hearing was originally set for 19 February 2025; but \nit was canceled and rescheduled due to inclement weather. Notice of the rescheduled \nhearing was sent on 20 February 2025, resetting the date for 5 March 2025. When mailings \nare returned to the AWCC as not accepted or undeliverable, those mailings are appended to \nthe claim’s file. This file includes a return of the certified letter from 22 January 2025, \nwhich I have also blue-backed to this opinion. \n \n \n \n1\n The box indicating “Initial Filing” was checked in error on the form. \n\nACUNA- H402162 \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole, which includes the exhibits admitted into \nevidence at the hearing and the documents blue-backed to this opinion, I hereby make the \nfollowing findings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2021): \n 1. The AWCC has jurisdiction over this matter. \n 2. The claimant has not filed a Form AR-C in connection with this matter. \n 3. No other filings constitute a claim for additional benefits under § 11-9-702(c). \n4. The respondents’ motion to dismiss must be denied because no claim exists \nthat is subject to dismissal. \n \nADJUDICATION \nThe respondents appeared on 5 March 2025, presented their motion, and offered \nsupporting evidence into the record. Having reviewed the claimant’s file, the respondents \ncorrectly state that no Form AR-C has been filed in this case. A respondent-employer’s First \nReport of Injury is not sufficient to instigate a claim for initial benefits on the claimant’s \nbehalf. The Court of Appeals has held, however, that communication with the AWCC that \nis specific to a particular claim may be sufficient to serve as a claim, even in the absence of \na Form AR-C. See Garrett v. Sears, Roebuck & Co. 43 Ark. App. 37, 858 S.W.2d 146 (1993) \n(citing Cook v. Southwestern Bell Telephone Co., 21 Ark. App. 29, 727 S.W.2d 862 (1987). \nClaims for additional compensation, though, are controlled by § 11-9-702(c), which states: \nA claim for additional compensation must specifically state that it is a claim \nfor additional compensation. Documents which do not specifically request \nadditional benefits shall not be considered a claim for additional \ncompensation.  \n \n (Emphasis added) See White Cty. Judge v. Menser, 2020 Ark. 140, 597 S.W.3d 640.  \n\nACUNA- H402162 \n4 \n \nThe forms and the claimant’s letter (which simply stated “I am requesting a hearing”) that \nare blue-backed to this opinion do not demonstrate compliance with the statute’s \nrequirements for filing a claim for additional benefits.  \nUnder § 11-9-705(a)(3), the respondents must prove by a preponderance of the \nevidence that a dismissal should be granted. A “preponderance of the evidence” means the \nevidence having greater weight or greater force. Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \nHere, the evidence preponderates a finding that no filing has been made that constitutes a \nclaim for additional benefits under the requirements noted above. Thus, there is no claim \nthat is subject to dismissal per the respondents’ motion. \nORDER \n Consistent with the findings of fact and conclusions of law set forth above, the \nMotion to Dismiss is hereby DENIED. \nSO ORDERED.  \n    \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":6364,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H402162 SCARLETT R. ACUNA, EMPLOYEE CLAIMANT ALDI, INC. EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ BROADSPIRE SERVICES, CARRIER/TPA RESPONDENT OPINION FILED 21 MARCH 2025 Heard before Arkansas Workers’ Compensation Commission (AWCC) Adminis...","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1","denied:2"],"injuryKeywords":["back","strain"],"fetchedAt":"2026-05-19T22:42:49.699Z"},{"id":"alj-H400984-2025-03-21","awccNumber":"H400984","decisionDate":"2025-03-21","decisionYear":2025,"opinionType":"alj","claimantName":"Gilbert Alcala","employerName":"Costco Wholesale Corp","title":"ALCALA VS. COSTCO WHOLESALE CORP. AWCC# H400984 March 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ALCALA_GILBERT_H400984_20250321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ALCALA_GILBERT_H400984_20250321.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H400984 \nGILBERT ALCALA, EMPLOYEE       CLAIMANT \n \nCOSTCO WHOLESALE CORP.,  \nEMPLOYER         RESPONDENT  \n \nSAFETY NATIONAL CASUALTY CORP./  \nCARRIER/TPA        RESPONDENT   \n \nOPINION FILED MARCH 21, 2025 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, on March 11, 2025. \nClaimant is Pro Se and did not appear. \nRespondents are represented by David C. Jones, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on March 11, 2025, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct.  The claimant contended that he sustained a work-related injury on her right leg when \nshe ruptured a scar while loading a basket.  A C Form was filed on February 8, 2024.   A \nFirst Report of Injury was filed on February 29, 2024, and an AR -2 was filed on March 5, \n2024.  A Motion to Dismiss for failure to prosecute was filed on or about January 13th, \n2025, and the claimant failed to respond to the motion.   \nA hearing  was  set  for March  11, 2025, in  regard to  the Motion  to Dismiss.  The \nclaimant failed to appear at the hearing after proper notice to the last known address of \n\nGilbert Alcala – H400984 \nthe  claimant.  At  the  time  of  the  hearing, David  C.  Jones appeared  on  behalf  of  the \nRespondents and asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould  be  granted  and  this  matter  should  be  dismissed  without  prejudice pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct at this time.   \nIT IS SO ORDERED: \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2318,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H400984 GILBERT ALCALA, EMPLOYEE CLAIMANT COSTCO WHOLESALE CORP., EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY CORP./ CARRIER/TPA RESPONDENT OPINION FILED MARCH 21, 2025 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas, on M...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:42:51.771Z"},{"id":"alj-H302895-2025-03-21","awccNumber":"H302895","decisionDate":"2025-03-21","decisionYear":2025,"opinionType":"alj","claimantName":"Janie Griffin","employerName":"New Hope Speciliazed Industries, Inc","title":"GRIFFIN VS. NEW HOPE SPECILIAZED INDUSTRIES, INC AWCC# H302895 March 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GRIFFIN_JANIE_H302895_20250321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRIFFIN_JANIE_H302895_20250321.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H302895 \nJANIE GRIFFIN, EMPLOYEE        CLAIMANT \n \nNEW HOPE SPECILIAZED INDUSTRIES, INC,  \nEMPLOYER             RESPONDENT  \n \nTECHNOLOGY INSURANCE CO.,  \nCARRIER/TPA            RESPONDENT   \n         \nOPINION FILED MARCH 21, 2025 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, on March 11, 2025. \nClaimant is Pro Se and did not appear. \nRespondents are represented by William C. Frye, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on March 11, 2025, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct.  The claimant contended that she sustained a work-related injury when she tripped \nand fell on February 14, 2022, injuring her right arm and left leg.  A First Report of Injury \nand an AR -2 was filed on May 4, 2023.  At one point, it appeared that the claimant had \nreached a settlement agreement with the respondent, but this agreement ultimately failed.  \nThe  claimant  was  originally  represented  by  Laura  Beth  York,  who  was  allowed  to \nwithdraw by an Order of The Full Commission dated November 13, 2025.  The claimant \nhas made no bona fide request for a hearing has been made within six (6) months of the \nfiling  of  the  claim.  A Motion  to  Dismiss for  failure  to prosecute  was  filed  on or  about \nJanuary 16th, 2025, and the claimant failed to respond to the motion.   \n\nJanie Griffin – H302895 \nA hearing  was  set  for March  11, 2025, in  regard to  the Motion  to Dismiss.  The \nclaimant failed to appear at the hearing after proper notice to her last known address.  At \nthe time of the hearing, William C. Frye appeared on behalf of the respondents and asked \nthat the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould  be  granted  and  this  matter  should  be  dismissed  without  prejudice pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct at this time.   \nIT IS SO ORDERED: \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2692,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302895 JANIE GRIFFIN, EMPLOYEE CLAIMANT NEW HOPE SPECILIAZED INDUSTRIES, INC, EMPLOYER RESPONDENT TECHNOLOGY INSURANCE CO., CARRIER/TPA RESPONDENT OPINION FILED MARCH 21, 2025 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansa...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:42:53.841Z"},{"id":"alj-H303479-2025-03-21","awccNumber":"H303479","decisionDate":"2025-03-21","decisionYear":2025,"opinionType":"alj","claimantName":"Keith Justice","employerName":"J Square, Inc","title":"JUSTICE VS. J SQUARE, INC. AWCC# H303479 March 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JUSTICE_KEITH_H303479_20250321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JUSTICE_KEITH_H303479_20250321.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H303479 \n \n \nKEITH J. JUSTICE, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nJ SQUARE, INC.,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nACCIDENT FUND INSURANCE,  \nCARRIER/THIRD PARTY ADMINISTRATOR(TPA)                                        RESPONDENT                                                                    \n \nOPINION FILED MARCH 21, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, Little Rock, Pulaski County, \nArkansas. \n \nClaimant  represented  by  the  Honorable Kenneth  A.  Olsen,  Attorney at  Law, Bryant,  Arkansas.  \nMr. Olsen did not attend the hearing    \n \nRespondents represented  by the  Honorable Karen  H.  McKinney, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on March 19, 2025, in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702, and/or Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \nThe record consists of the transcript of March 19, 2025, hearing and the documents held \ntherein.  The Commission’s Exhibit consists of thirteen (13) pages of various pleadings, letters, \nand  tracking  information which  was provided to  the  Commission  by the  United  States  Postal \n\nJUSTICE – H303479 \n \n2 \n \nService.  It was marked accordingly.  Respondents’ Exhibit 1 consists of eighteen (18) pages of \npleadings, correspondence, and various other forms related to this claim. \n                                                             Procedural History \n On May 30, 2023, the Claimant filed with the Commission a claim for Arkansas workers’ \ncompensation  benefits on  his  own  behalf via  a  Form  AR-C.  Per  this  document,  the  Claimant \nalleged that he sustained multiple injuries during the course and in the scope of his employment \nwith  the  respondent-employer, on July  29,  2022.  The  Claimant  requested both  initial  and \nadditional benefits.  In  fact, he checked  off all the boxes for  every  conceivable workers’ \ncompensation benefit under the law. \n  The  respondent-insurance-carrier  filed  a  Form AR-2 with  the  Commission  on June  23, \n2023.  Per this form, the Respondents stated that they did accept this claim as a compensable claim \nfor J Square, LLC. \n The Claimant retained legal representation in this matter on or about June 21, 2023.  \n Since this time, and the filing of the claim in May 2023, the Claimant has not tried to pursue \nor otherwise resolve his claim, nor has he made a bona fide request for a hearing since the filing \nfor the Form AR-C more than six (6) months ago.  \n Therefore,  on March  4, 2023, the  Respondents filed a Respondents’ Motion  to Dismiss \nwith the Commission.  \nOn or about March 18, 2024, the Claimant’s attorney objected to the motion to dismiss and \nasked  for  a  hearing.    Therefore,  I  held  the  motion  in  abeyance  and  the  prehearing  process  was \nstarted.    Therefore,  on  April  19, 2024, the  claim  was  scheduled  for  a  prehearing  telephone \nconference with the parties for May 15, 2024.  At the time of the prehearing telephone conference, \nthe parties stated that discovery had not been completed and asked that the claim be returned to \n\nJUSTICE – H303479 \n \n3 \n \nthe Commission’s general files.  This was done.  Since that time, there has been no bona fide action \ntaken on the part of the Claimant to proceed with a hearing.  \nTherefore, on January 6, 2025, the Respondents filed a Respondents’ Renewed Motion to \nDismiss with  the  Commission,  along  with a certificate  of service  to  the Claimant’s attorney.  \nHence, the Respondents forwarded a copy of said motion to the Claimant’s attorney via email.  \nMy office sent a letter to the Claimant on January 15, 2025, informing the Claimant, and \nhis attorney of the Respondents’ Renewed Motion to Dismiss, and a deadline of twenty (20) days \nfor filing a written response.  This letter was sent to the Claimant via first-class and certified mail.  \nInformation  received  by  the  Commission  from  the  United  States  Postal  Service  on  January 18, \n2025,  confirms  that  they delivered the item to the Claimant’s residence, and left it with an \nindividual.  The recipient’s signature recorded on this document is illegible.  However, the notice \nsent by first-class mail has not been returned to the Commission.  Moreover, the letter-notice was \nsent to the Claimant’s attorney via email, and the United States Postal Service.  Yet, there has been \nno response from the Claimant’s attorney or the Claimant.    \n Subsequently, in a Hearing Notice dated February 5, 2025, my office notified the parties \nthat this claim had been set for a hearing on the Respondents’ most recent motion to dismiss.  Said \ndismissal hearing was scheduled for March 19, 2025, 10:00 a.m., with the hearing being held at \nthe Arkansas Workers’ Compensation Commission, in Little Rock, Arkansas.  My office sent this \nnotice to the Claimant via first-class mail and certified mail. \nTracking  information  received  from  the  Postal  Service  shows  that the  item/notice  of \nhearing was delivered to the Claimant’s residence and left with an individual on February 8, 2025.  \nThe  Signature of Recipient section of  this  document bears a signature, but  it  too  is  illegible.  \nHowever, the notice sent via first-class mail has not been returned to the Commission.  Likewise, \n\nJUSTICE – H303479 \n \n4 \n \nmy office forwarded a copy of the notice of hearing to the Claimant’s attorney by way of an email, \nand the United States Postal Service.  Thus far, there has been no response from the Claimant’s \nattorney or the Claimant.    \nBased on the foregoing, the evidence preponderates that both the Claimant and his attorney \nreceived notice of the dismissal hearing.      \nOn March 19, the dismissal hearing was held as scheduled.  The Claimant’s attorney did \nnot attend the hearing.  Nor did the Claimant appear at the hearing.  Nevertheless, the Respondents’ \nattorney appeared at the hearing and argued that the Claimant has failed to prosecute his claim for \nworkers’ compensation benefits.  More  specifically, the Respondents’ attorney noted  that  the \nClaimant has not taken any action to advance his claim in over a year.  Counsel further argued, \namong other  things that  the Claimant  and  his attorney have not objected  to the  claim  being \ndismissed.  Therefore, the Respondents’ attorney moved  that this claim be dismissed without \nprejudice pursuant to Ark. Code Ann. §11-9-702, and/or Commission Rule 099.13.  \nADJUDICATION  \nTherefore, the statutory provisions and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ renewed request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) states:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nArk. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n\nJUSTICE – H303479 \n \n5 \n \n \nFurthermore, Commission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute his claim for workers’ compensation \nbenefits  within  the last six  (6)  months  ago.  Nor  has the Claimant  or  his  attorney resisted  the \nrenewed motion for dismissal of this claim despite having received notice of the hearing.  Hence, \nthe  evidence  preponderates  that  the  Claimant  has  clearly  failed  to  prosecute  this  claim.  \nFurthermore, considering all the foregoing, I am convinced that both the Claimant and his attorney \nhave abandoned this claim.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nrenewed motion for dismissal of this claim for a lack of prosecution to be well founded.  I thus \nfind that pursuant to Ark. Code Ann.§11-9-702(a)(4) and (d), along with Commission Rule 099.13, \nthis  claim  for initial and additional workers’ compensation benefits should  be  and is  hereby \nrespectfully dismissed without prejudice to the refiling of it within the limitation periods specified \nunder the Arkansas Workers’ Compensation Act (the “Act”). \n\nJUSTICE – H303479 \n \n6 \n \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a renewed motion for dismissal \nof this claim, for which a hearing was held. \n \n3. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n4. The  evidence  preponderates  that  the Respondents’ Renewed  Motion  to \nDismiss this  claim for a lack of prosecution is well founded, and should be \nhereby granted, without prejudice, per Ark. Code Ann. §11-9-702(a)(4) and \n(d), and Commission Rule 099.13, to the refiling of it within the limitation \nperiods specified by law.  \n \n                                                           ORDER \n \nBased  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’ compensation benefits.  This dismissal is made pursuant to the provisions of Ark. Code \nAnn. §11-9-702(a)(4) and (d), and Commission Rule 099.13, without prejudice to the refiling of \nthis claim within the limitation periods specified under the Act. \nIT IS SO ORDERED. \n \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":12004,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H303479 KEITH J. JUSTICE, EMPLOYEE CLAIMANT J SQUARE, INC., EMPLOYER RESPONDENT ACCIDENT FUND INSURANCE, CARRIER/THIRD PARTY ADMINISTRATOR(TPA) RESPONDENT OPINION FILED MARCH 21, 2025 Hearing held before Administrative Law Judge Chandra L. Black, Little Ro...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:42:55.913Z"},{"id":"alj-G702350-2025-03-21","awccNumber":"G702350","decisionDate":"2025-03-21","decisionYear":2025,"opinionType":"alj","claimantName":"Nancy Heitman","employerName":"Arkansas Department Of Correction","title":"HEITMAN VS. ARKANSAS DEPARTMENT OF CORRECTION AWCC# G702350 March 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HEITMAN_NANCY_G702350_20250321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HEITMAN_NANCY_G702350_20250321.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM No G702350 \n \nNANCY HEITMAN (FORMERLY COONEY), EMPLOYEE    CLAIMANT \n \nvs. \n \nARKANSAS DEPARTMENT OF CORRECTION  \n(McPHERSON UNIT), EMPLOYER               RESPONDENT No 1 \n                           \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, TPA            RESPONDENT No 1 \n \nDEATH & PERMANENT TOTAL DISABILTY             RESPONDENT No 2 \nTRUST FUND \n \n \n \nAMENDED OPINION & ORDER FILED 21 MARCH 2025 \n \n \nThis claim was heard before Arkansas Workers’ Compensation Commission (the \n“Commission”) Administrative Law Judge JayO. Howe on 11 December 2024 in Little Rock, \nArkansas. \n \nThe claimant was represented by the Caldwell Law Firm, Mr. Andy L. Caldwell. \n \nRespondent No 1 was represented by the Public Employee Claims Division, Mr. Charles \nMcLemore. \n \nRespondent No 2 was excused from participating in the proceeding. \n \nSTATEMENT OF THE CASE \n \n The claimant and Respondent No 1 participated in a prehearing conference on 30 \nJuly 2024. A Prehearing Order was entered the same day. That Order was entered into the \nhearing record without objection as Commission’s Exhibit No 1. As outlined in the \nPrehearing Order, the parties agreed to the following: \nSTIPULATIONS \n 1. The Commission has jurisdiction over this claim. \n\nHEITMAN (FORMERLY COONEY)- G702350 \n2 \n \n2. The employee/employer/TPA relationship existed on or about 3 April 2017, \nwhen the claimant sustained an accepted injury to her left knee. \n \n3. At the time relevant to this matter, the claimant was earning an average \nweekly wage of $539.06 per week, which would entitle her to compensation \nrates of $359 and $269 per week for Temporary Total Disability (TTD) and \nPermanent Partial Disability (PPD), respectively. \n \n4. This claim was previously heard before the Commission on 9 September \n2020. An ALJ’s Opinion on the issues litigated at that hearing was entered on \n8 December 2020. The Law of the Case Doctrine applies to that Opinion. \n \nISSUES \n1. Whether the claimant is entitled to PPD benefits. \n \n2. Whether the claimant is entitled to the costs associated with a Functional \nCapacity Evaluation, as she contends that it was reasonable and necessary \nmedical treatment.\n1\n \n \n 3. Whether the claimant is entitled to an attorney’s fee. \n All other issues are reserved.\n2\n \nCONTENTIONS \n According to their prehearing filings: \nThe claimant contends that she suffered compensable injuries to her left knee \nin the course and scope of her employment which resulted in the need for treatment \nbeginning on or about April 3, 2017. Claimant had a total ACL reconstruction and \ndebridement of cyclops lesion of posterior capsular release. Dr. Philip Allan Smith \nreleased the claimant with no impairment despite the two surgical procedures. \nClaimant is entitled to anatomical impairment in accordance with the American \n \n1\n This issue was not included in the Prehearing Order, but it is consistent with the \nclaimant’s amended prehearing information entered into the record without objection as \nCommission’s Exhibit No 3. The respondents did not object to the issue being presented at \nthe hearing. [TR at 10.] \n2\n The Prehearing Order indicated an additional issue of whether the claimant was entitled \nto benefits under ACA § 11-9-505(a)(1). The parties agreed at the beginning of the hearing \nthat that issue would not be presented for litigation. [TR at 9-10.] \n\nHEITMAN (FORMERLY COONEY)- G702350 \n3 \n \nMedical Association’s Guides to the Evaluation of Permanent Impairment, 4\nth\n \nEdition. Functional Testing Centers, Inc. (FTC) has assigned an 8% rating to the \nclaimant’s lower extremity. The claimant is entitled to 8% impairment for her lower \nextremity or impairment as determined by the Commission in accordance with the \nAct and the Guides to the Evaluation of Permanent Impairment, 4\nth\n Edition. \nClaimant further contends that the evaluation by FTC was reasonable and \nnecessary medical treatment under the Act for which the respondents should be \nresponsible and for which the respondent should reimburse the claimant’s cost. The \nrespondents have controverted the claimant’s entitlement to additional benefits, and \nClaimant is entitled to attorney’s fees on all controverted benefits. \n Respondents No. 1 contend that the claimant did sustain a compensable injury \nto  her  left  knee  on  April  3,  2017, that this  claim  has  been  accepted,  and  that \nappropriate benefits have been or are being paid by Respondent No. 1. The claimant \nhas  been  provided  medical  treatment  reasonable  and  necessary  for  her  injury, \nincluding left anterior cruciate ligament reconstruction with quad tendon autograft \nsurgery performed by Dr. Smith on May 3, 2017, and a left anterior cruciate ligament \ncyclops debridement and posterior capsular release performed by Dr. Smith on August \n23, 2017. The claimant was released at MMI by Dr. Smith on November 7, 2017, with \nzero percent (0%) permanent impairment and no permanent restrictions, Dr. Smith \nnoted in his report that the Claimant had full extension and good flexion, good \nstrength, was not having any pain at this time, had regained all of her motion, and \nwas ready to go back to work.  \n The claimant was paid TTD benefits during her healing period, from April 4, \n2017, to November 7, 2017. The TTD benefits were suspended on October 6, 2017, \n\nHEITMAN (FORMERLY COONEY)- G702350 \n4 \n \nwhen the claimant did not appear at a scheduled appointment, and her attorney was \nnotified of this by the adjuster. Subsequently, when it was determined that the \nclaimant had missed the appointment but called to reschedule, TTD benefits were \nreinstated, from October 6; and her attorney was notified of this by the adjuster. \n The claimant made a demand for benefits\n3\n under 11-9-505 on November 22, \n2017. Claimant has since returned to work for her employer at greater wages than at \nthe time of her injury. The claimant, who was hired on March 26, 2017, was not yet \neligible for FMLA protection at the time of her April 3, 2017 injury, and had been \nterminated after being off work with no leave time; but she was rehired and began \nwork on November 27, 2017, at a position with greater pay than what she earned at \nthe time of her injury. \n Respondent No. 1 contends that no additional TTD benefits are owed as the \nclaimant has already been paid TTD for all of the days during her healing period. \nRespondent No. 1 contends that no PPD benefits are owed because the claimant was \nreleased at MMI by her treating physician with a finding that she had no permanent \nimpairment as well as finding she had full extension and good flexion, good strength, \nwas not having any pain at this time, had regained all of her motion, and was ready \nto go back to work. Respondent No.1 contends that the claimant has returned to work \nfor her employer at greater wages than she made at the time of injury. Respondent \nNo. 1 contends that the claimant is not owed benefits under either section of 11-9-505. \nRespondent  No.  1 contends  that  all  appropriate  benefits  have  been  paid  to  this \nClaimant.  \n \n3\n See FN2. \n\nHEITMAN (FORMERLY COONEY)- G702350 \n5 \n \n At the time of the prehearing conference on December 5, 2017, the claimant \nrequested  a  Change  of  Physician; but  subsequently,  the claimant  withdrew  her \nrequest for a change of physician and requested to see Dr. Smith again. Respondent \nprovided the claimant with another visit with Dr. Smith on February 1, 2018, and \nagain  on  October  2,  2018, at  the claimant’s  request.  Claimant  demanded  an \nIndependent Medical Evaluation (IME) with a different doctor for the sole purpose of \nobtaining  to  Claimant’s  Motion  for  an  Independent  Medical  Examination  and \ncontends  that  the claimant’s  treating  physician  has  already  stated  his  opinion \nregarding  permanent  anatomical  impairment  related  to  compensable  injury.  A \nhearing  was  held  on  the claimant’s  demand,  with  an  Opinion  and  Order  filed \nDecember 8, 2020, denying the claimant’s demand for an IME, no appeal was filed, \nand this decision was final, res judicata, and the law of the case.  \n There has been no activity on the claim since that final December 8, 2020, \ndecision; so Respondent No. 1 filed its Motion to Dismiss for Want of Prosecution on \nJune 3, 2024, which Claimant has now objected to and demanded a hearing. \nRespondent No. 1 contends that the claimant cannot establish her \nentitlement to an impairment rating for her 2017 injury. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witness, observing her demeanor, I make the \nfollowing findings of fact and conclusions of law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The stipulations as set forth above are accepted. \n3. The claimant failed to prove by a preponderance of the evidence that she is \nentitled to PPD benefits. \n\nHEITMAN (FORMERLY COONEY)- G702350 \n6 \n \n \n \n4. The claimant failed to prove by a preponderance of the evidence that she is \nentitled to the costs associated with the impairment evaluation. \n \n5. The claimant failed to prove by a preponderance of the evidence that she is \nentitled to an attorney’s fee. \n \nSUMMARY OF THE EVIDENCE \n The claimant was the only witness. The record consists of the hearing transcript and \nthe following exhibits: Commission’s Exhibit No 1 (the Prehearing Order); Commission’s \nExhibit No 2 (the respondent’s prehearing information); Commission’s Exhibit No 3 (the \nclaimant’s amended prehearing information); Claimant’s Exhibit No 1 ( an index page and \n46 pages of medical records); Claimant's Exhibit No 2 (one index page and a one-page bill for \nFTC’s services); Respondents No 1 Exhibit No 1 (correspondence dated 1 October 2024 that \naccompanied their submission of exhibits before the hearing); and Respondents No 1 Exhibit \nNo 2 (one index page and 14 pages of non-medical records). A previous hearing on whether \nthe claimant was entitled to an IME was held on 8 December 2020. The transcript from \nthat proceeding was incorporated by reference. \nTESTIMONY \n  Claimant Nancy Heitman (formerly Cooney) \nThe claimant is a forty-three-year-old female who injured her left knee doing \njumping jacks at the respondent-employer’s training academy on 3 April 2017. She was \ndiagnosed with a torn ACL and ultimately underwent surgical repair with Dr. Smith on 3 \nMay 2017. A follow-up surgery was performed on 23 August 2017 for a debridement of some \nscar tissue. \nThe claimant testified that after some post-operative physical therapy, she was \nreleased by Dr. Smith in November of 2017 despite some continuing difficulties with her \nleft knee. She described experiencing some weakness and decreased muscle volume in her \n\nHEITMAN (FORMERLY COONEY)- G702350 \n7 \n \nthigh, along with “pain, swelling, [and] popping.” She also described her gait as altered at \nthe time of her release.  \nDr. Smith’s clinic note from the date of her release indicated that the claimant had \n“full extension and good flexion” at the time; but she disagreed with that assessment. She \ncredited his opinion, however, that she needed to “continue working on quad and hamstring \nstrengthening.” According to her testimony, her left thigh and calf muscles were both \nsmaller at the time of her release than they had been prior to her injury. \nThe claimant testified that she continues having pain, swelling, clicking, and \npopping in her left knee. She believes that her knee has not been the same since her injury \nand subsequent treatment. She described her condition as currently worse than at the time \nof her release and stated that she continues to experience weakness and difficulty \nstraightening her leg. \nOn cross-examination the claimant confirmed that her testimony about the reduced \nsize of her thigh muscle related to the time of her release, but that the difference in muscle \nsize was not present at the time of the hearing. She recalled an appointment with Dr. \nSmith after her release where he noted left knee pain after prolonged running. According to \nthe claimant, she stopped seeing Dr. Smith at that time because he would not listen to her. \nThe claimant stated that she began seeing an orthopedic physician at NEA Baptist \naround the time that she started working in security for the facility, sometime around \nSeptember of 2022. In that security role, she said that she avoids taking the stairs, opting \nfor elevators instead, when moving about the facility. The claimant then confirmed that she \nwas not actually examined by the occupational therapist who authored an impairment \nevaluation letter she entered into evidence. She is not currently treating with any provider \nfor her left knee. \n \n\nHEITMAN (FORMERLY COONEY)- G702350 \n8 \n \n Medical and Documentary Evidence \n The claimant first presented to Central Arkansas Urgent Care with a chief \ncomplaint of left knee pain on 5 April 2017. She was preliminarily diagnosed with a sprain \nand referred to OrthoArkansas. She was soon diagnosed with an ACL tear and scheduled \nfor surgical repair on 3 May 2017. About three months after surgery, Dr. Smith suspected \nthat a cyclops lesion was hindering her recovery and impinging her range of motion. An \narthroscopic debridement procedure was then scheduled after an MRI confirmed the cyclops \nlesion. \n The claimant underwent the debridement procedure on 23 August 2017. She \nfollowed up in clinic on 1 September 2017, when Dr. Smith noted that he wanted her to \ncontinue working on range-of-motion exercises and quad strengthening. A physical therapy \nnote from that same day provided: \nMs. Cooney has been seen in clinic for 3 visits following debridement of L \nknee after ACL [surgery]. Pt has been independent with ambulation since re-\neval. Pt reports more soreness in knee than pain. AROM L knee 2-110 deg. \nPROM 0-115 deg. We have continued to progress strength but have really \nemphasized knee flexion and extension ROM. [sic] \n \n[Cl. Ex. No 1 at 42.] \nThe claimant later returned to Dr. Smith’s clinic and was released on 7 November \n2017. At that visit, he noted: \nHPI: Status post left ACL reconstruction. She also had a debridement of a \ncyclops lesion of posterior capsular release for stiffness. She has done very \nwell following her second surgery. She is not having any pain at this time. \nShe has regained all of her motion. She is ready to go back to work. \n \nEXAMINATION: Left knee shows healed incisions. She has full extension \nand good flexion. She is a firm Lachman. She has good strength. \n \n. . .  \n \nPLAN: She may resume all activities as tolerated. She needs to continue \nworking on quad strengthening and hamstring strengthening. I will see her \n\nHEITMAN (FORMERLY COONEY)- G702350 \n9 \n \nback as needed. She has reached MMI. She will have a 0% permanent \nimpairment rating. \n \n[Cl. Ex. No 1 at 44.] \n The claimant also introduced a report titled, Impairment Evaluation from Records- \nLower Extremity, authored by Occupational Therapist Casey Garretson of Functional \nTesting Centers, Inc., on 14 November 2024. According to that opinion letter: \nAccording to the medical record, Dr. [Smith] declared this patient at MMI on \n11-07-2017 and indicated in that note, “She needs to continue working on \nquad and hamstring strengthening.” With this information as well as other \nnotes from Dr. Smith reporting that she needs to continue working on quad \nstrengthening, it would be reasonable in my professional opinion that had a \nmoderate girth deficit due to her noted weakness in her thigh at the time of \nMMI. Using Section 3.2c, Table 37 on page 77 of the Guides, Muscle \nAtrophy, this would result in an 8% Lower Extremity, 3 % Whole \nPerson Impairment in this case. There seemed to be a failure to note any \nmeasured atrophy in the medical records. [Emphasis in original.] \n \nAlso, according to the medical record, it is noted at the time of MMI, Dr. \nSmith stated, “She has full extension and good flexion.” Therefore, she did \nnot qualify for impairment based on loss of motion at the time of MMI. \nHowever, in Dr. Smith’s note from 10-02-2018, he stated, “She lacks a few \ndegrees of full extension compared to the opposite side.” Based on the notes \nfrom Dr. Smith, it is unclear the exact amount of degrees of extension that \nMs. Cooney is lacking. \n \n. . .  \n \nSummary Statement: \n \nAlthough Ms. Cooney’s girth was not measured or documented in the medical \nrecords, it is highly likely that she indeed had a muscle atrophy impairment, \nas Dr. Smith made several reports of left quad and/or left hamstring \nweakness. \n \nBased on the muscle atrophy impairment, she would be entitled to a 3% \nwhole person impairment, or 8% lower extremity impairment. \n \n[Cl. Ex. No 1 at 45-46.] \n The claimant submitted into evidence a bill for the impairment report. [Cl. Ex. No 2 \nat 1.] She argues that the evaluation and report were reasonable and necessary medical \nservices for which the respondents should be liable.  \n\nHEITMAN (FORMERLY COONEY)- G702350 \n10 \n \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nA. The Claimant Failed to Prove by a Preponderance of the Evidence That \nShe is Entitled to Permanent Partial Disability Benefits. \n \nPermanent impairment is any permanent functional or anatomical loss remaining \nafter the end of the healing period has been reached. Johnson v. General Dynamics, 46 Ark. \nApp. 188, 878 S.W.2d 411 (1994). Any determination of the existence or extent of physical \nimpairment shall be supported by objective and measurable physical findings. Ark. Code \nAnn. § 11-9-9704(c)(1). Objective findings are those findings which cannot come under the \nvoluntary control of the patient. Id. § 11-9-102(16)(A)(i). Medical opinions \naddressing impairment must be stated within a reasonable degree of medical certainty. Id. \n§ 11-9102(16)(B). Permanent benefits shall be awarded only upon a determination that the \ncompensable injury was the major cause of the disability or impairment. Id. § 11-9-\n\nHEITMAN (FORMERLY COONEY)- G702350 \n11 \n \n102(f)(ii)(a). \"Major cause\" means more than fifty percent (50%) of the cause. Id. § 11-9-\n102(14). \nThe crux of this claim lies between competing opinions on whether the claimant is \nentitled to an impairment rating and the commensurate PPD benefits. On the one hand \nthere is the opinion from her treating surgeon who supervised her care through two \nsurgical procedures and rehabilitative periods. On the other hand is the opinion of a \nqualified occupational therapist who reviewed the surgeon’s records and then offered his \nown contradictory opinion. Given the record evidence, the claimant has failed to prove by a \npreponderance of the evidence that she is entitled to PPD benefits. \nThe evidence shows that Dr. Smith was responsible for managing the claimant’s \ninitial post-surgical care and recovery. After she was not progressing as expected, he sought \nfurther surgical intervention, by way of the debridement procedure, to promote her return \nto function. He monitored and evaluated her gains as she participated in physical therapy. \nWhen he saw the claimant on 1 September 2017, he noted that she had some bruising and \nlacked full extension. He also noted that he wanted her to “continue working on range of \nmotion and quad strengthening.” \nDr. Smith then saw the claimant again on 7 November 2017 and noted what appears \nto be excellent progress. “She is not having any pain at this time. She has regained all of \nher motion. She is ready to go back to work.” He further indicated that she had “full \nextension and good flexion.” Good strength was also noted. He released her at MMI that \nday and found her to have no permanent impairment (0% permanent impairment rating). \nThe record from a previous hearing in this claim shows that the respondents, when \nreviewing the claimant’s status with her attorney, had obtained hand-written confirmation \nfrom Dr. Smith that she had “Full ROM. No Ligamentous laxity. 0% according to AMA 4\nth\n \nedition.” See 9 September 2020 TR, Resp. Ex. No 3 at 3-4. An email relaying the same \n\nHEITMAN (FORMERLY COONEY)- G702350 \n12 \n \ncommunication and information was introduced into the record for this hearing. [Resp. Ex. \nNo 2 at 7.] \nI find Dr. Smith’s opinion on the claimant’s condition and his assignment of a zero \npercent (0%) impairment rating at the time of her 7 November 2017 release at MMI to be \ncredible. The Commission is authorized to accept or reject a medical opinion and is \nauthorized to determine its medical soundness and probative value. Poulan Weed Eater v. \nMarshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). In the absence of contemporaneous \nobjective, measurable findings conflicting with Dr. Smith’s assessment, I credit his opinion \nas it was initially relayed in the clinic notes and then again confirmed through subsequent \ncommunication with the respondents. \nJust over seven years later, on 14 November 2024, the claimant obtained a contrary \nopinion from Dr. Garretson as to her condition in 2017. That opinion was appropriately \npresented as an evaluation based only on the records that were provided to the reviewer. \nDr. Garretson agrees that because the claimant’s records show that “she has no cruciate \nlaxity and she has good stability in her knee, therefore she does not qualify for a diagnosis-\nbased impairment.” He supposes, however, that because Dr. Smith encouraged continued \nquad and hamstring strengthening, the claimant likely experienced muscle atrophy that \nwould have entitled her to an eight percent (8%) impairment rating to her lower extremity. \nThat is notwithstanding his acknowledgement that the record does not contain any \ncomparative muscle girth measurements to support that determination. I find this opinion \nto be speculative and do not assign it greater weight than Dr. Smith’s contemporaneous \nopinion on the claimant’s condition at the time of her release from care. \nThe claimant, for her part, testified that she recalled having a noticeable muscle \ngirth deficit at the time of her release. She provided no contemporaneous documentary \nevidence, however, to support that recollection. I find her recollection of her own lay \n\nHEITMAN (FORMERLY COONEY)- G702350 \n13 \n \nassessment of her condition in 2017, which stands apart from the documented medical \nobservations at the time, to be of minimal evidentiary weight. \nAccordingly, I find that the claimant has failed to prove by a preponderance of the \nevidence that she is entitled to PPD benefits associated with her compensable left knee \ninjury. \nB. THE CLAIMANT IS NOT ENTITLED TO THE COST OF THE \nIMPAIRMENT EVALUATION LETTER. \n \nAn employer shall promptly provide for an injured employee such medical treatment \nas may be reasonably necessary in connection with the injury received by the employee. \nArk. Code Ann. § 11-9-508(a). The claimant bears the burden of proving that she is entitled \nto additional medical treatment. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d \n543 (1999). What constitutes reasonable and necessary medical treatment is a question of \nfact for the Commission. White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d \n396 (2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n Here, the claimant sought an opinion from a new provider after already receiving an \nimpairment rating from Dr. Smith, the provider with whom she had maintained a \nrelationship throughout the course of her treatment. The impairment opinion provided by \nFTC in this claim was not based on any actual, in-person evaluation of the claimant. The \nclaimant has failed to prove by a preponderance of the evidence that the evaluation services \nand the associated costs are reasonable or necessary in relation to the claimant’s condition \nor treatment. Her request for the respondents to be held liable for the costs associated with \nthat report is denied, accordingly. \n C. THE CLAIMANT IS NOT ENTITLED TO AN ATTORNEY’S FEE. \n Because the claimant failed to meet her burden on the claims above that might \nprovide for an attorney’s fee, her claim for a fee must also fail. \n\nHEITMAN (FORMERLY COONEY)- G702350 \n14 \n \nCONCLUSION \n Because the claimant failed to meet her burden of proof on any of the issues \npresented in this matter, this claim for additional benefits is DENIED AND DISMISSED. \n IT IS SO ORDERED. \n       ______________________________________ \n       JayO. Howe \n       Administrative Law Judge","textLength":25546,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM No G702350 NANCY HEITMAN (FORMERLY COONEY), EMPLOYEE CLAIMANT vs. ARKANSAS DEPARTMENT OF CORRECTION (McPHERSON UNIT), EMPLOYER RESPONDENT No 1 PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT No 1 DEATH & PERMANENT TOTAL DISABILTY RESPONDENT No 2 TRUST FUND AMEN...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:3","denied:8"],"injuryKeywords":["knee","back","sprain"],"fetchedAt":"2026-05-19T22:42:57.988Z"},{"id":"alj-H404078-2025-03-21","awccNumber":"H404078","decisionDate":"2025-03-21","decisionYear":2025,"opinionType":"alj","claimantName":"Marcie Hill","employerName":"Silica Transport, Inc","title":"HILL VS. SILICA TRANSPORT, INC. AWCC# H404078 March 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HILL_MARCIE_H404078_20250321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HILL_MARCIE_H404078_20250321.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404078 \nMARCIE HILL, EMPLOYEE      CLAIMANT \n \nSILICA TRANSPORT, INC., EMPLOYER    RESPONDENT  \n \nARKANSAS TRUCKING ASSOCIATION \nSI FUND/CCMSI, INSURANCE CARRIER/TPA    RESPONDENT \n \nOPINION FILED MARCH 21, 2025 \nHearing before Administrative Law Judge, James D. Kennedy, on the 4\nTH\n day of \nFebruary 2025, in Little Rock, Arkansas. \nClaimant is represented by Mark Alan Peoples, Attorney at Law, of Little Rock, \nArkansas. \nRespondent is represented by Melissa Wood, Attorney at Law, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 4\nth\n day of February 2025, to determine the issue \nof compensability for claimed work-related injuries to the claimant’s back, side, shoulders, \nleg,  and acquired  PTSD, based  upon  a MVA that  the  claimant  was  involved  in on \nDecember 26, 2023, in the state of Tennessee.  Additionally, the claimant contends he is \nentitled to temporary total disability from January 6, 2024, to a date to be determined, and \nattorney fees.  All other issues are reserved.  The respondents contended that the claim \nwas initially accepted as medical only but was denied in its entirety on January 6, 2024.  \nIn addition, the respondents contended that although the claim was originally accepted \nas  compensable,  the  claimant  failed  to  go  for  available  medical  treatment  and  that \nconsequently, there are no objective findings relating to the alleged injuries. Respondents \nfurther contended that the claimant later had an additional motor vehicle accident on or \nabout January 6, 2024, which was not work related and the later accident was the reason \n\nMARCIE HILL – H404078 \nfor  the  claimant’s  required  medical  treatment. A copy  of  the  Pre-hearing  order  was \nmarked “Commission Exhibit 1” and made part of the record without objection. The Order \nprovided  that  the  parties  stipulated  that  the  Arkansas  Workers’  Compensation \nCommission  has  jurisdiction  of  the  within  claim  and  that  an  employer/employee \nrelationship existed on December 26, 2023, when the claimant was involved in a work \nrelated motor vehicle accident (MVA) where the claimant alleges he sustained injuries to \nhis back, side, shoulders, and leg, with PTSD arising out of the accident. The parties also \nstipulated that the claimant’s average weekly wage was $1276.90, on the day of the work-\nrelated accident which corresponds to a weekly indemnity rate of $835.00 for temporary \ntotal disability and a permanent partial disability rate of $626.00. In addition, the parties \nstipulated that the respondents initially accepted the claim but have since controverted \nthe claim in its entirety.   \n The claimant’s and respondent’s  contentions  are  set  out  in  their  respective \nresponses  to  the  Pre-hearing Questionnaire  and  made  a  part  of  the  record  without \nobjection. The witnesses consisted of Ginnie Hill, the claimant’s wife, and the claimant \nMarcie Hill. From a review of the record as a whole, to include medical reports and other \nmatters properly before the Commission and having had an opportunity to observe the \ntestimony and demeanor of the witnesses, the following findings of fact and conclusions \nof law are made in accordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n\nMARCIE HILL – H404078 \n2. That an employer/employee relationship existed on December 26, 2023, \nwhen the claimant was involved in a work-related motor vehicle accident in \nTennessee. \n3. That the claimant earned an average weekly wage of $1276.90, sufficient for \na TTD/PPD rate of $835.00/$626.00 respectively.  \n4. That the claimant has failed to satisfy the required burden of proof by a \npreponderance of the credible evidence that he sustained a compensable \nwork-related injury to his back, side, shoulders, and leg, and the resulting \nclaim of PTSD on December 26, 2023. \n5. That all remaining issues are moot. \n6. If not already paid, the respondents are ordered to pay for the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The  Pre-hearing  Order  along  with  the  Pre-hearing  questionnaires of the parties \nwere admitted into the record without objection. The claimant submitted an exhibit of 90 \npages of medical records with an index that was admitted without objection. In addition, \nthe claimant submitted a second exhibit consisting of nine pages of non-medical records \nwith  an  index  that  was  admitted  without  an  objection. The  respondents submitted an \nexhibit  with  34  pages of  medical  records with  an  index  without  an  objection.  The \nrespondents also  submitted an  exhibit of twenty  pages  of  non-medical  records  with  an \nindex as their exhibit two with no objection. The respondents final exhibit, the deposition \nof Arlette Williams, was admitted as their exhibit three without objection. \n\nMARCIE HILL – H404078 \n Ms. Ginnie Hill, the wife of the claimant, was the first witness to testify. She testified \nthat she was the wife of the claimant, that they had been together for 10 years, and were \na married couple on December 26, 2023, the date of the accident. She testified that her \nhusband, the claimant, had been hurting all the time since the accident date. She stated \nthat the pain was mostly in his back, but also in his leg and he was also depressed. (Tr. \n5, 6) \n The claimant was the second and final witness to testify. The claimant testified that \nhe had worked for the Respondent for about five years at the time of the accident.  He \nworked  as  a  flatbed  truck  operator.  His  truck  would  be  loaded  by  others,  but  he  was \nrequired to  tarp and  strap  it,  which was a  very  physical  job.  On  December  26,  he  was \ndriving his truck from Kentucky and had made it to mile market 35 in Tennessee coming \nback west into Memphis. He realized that his hours for service were about to end, and he \nneeded to obtain something similar to a pass to get to his destination, so he pulled over \nonto the shoulder to place the change of duty of status since he was about 30 minutes \nfrom home. He put his flashers on, while pulling over on the shoulder to obtain the change \nof status and then pulled back on the highway when he was hit from behind. He thought \nthat he had been pulled over on the shoulder for about five minutes. He testified that he \nhad  gotten  up  to  about  55  miles  per  hour  when  he  was  rear  ended by  another  tractor \ntrailer. He stated he sustained injuries to his lower back and left shoulder. He again pulled \nover to the side and got out and that’s when he started noticing all the pain in his lower \nback and shoulder. An ambulance came and picked up the other driver who had hit him.  \nAfter the ambulance picked up the other driver, the claimant talked to the state trooper \n\nMARCIE HILL – H404078 \nand by this time, the claimant’s wife arrived and took him to the emergency room in West \nMemphis. (Tr. 7 – 11) \n The  claimant  stated  that  he  took  pictures  of  the  accident  scene  and  notified  his \nsupervisor. His wife took him to the hospital, and he was later released. He did not return \nto work the next day, but possible the next. (Tr. 12) He returned to work, but stated he \nwas  unable  lift  the  tarp  for  the  next  load  and  was  unable  to  do  anything  physical. He \ntestified that he told them what was going on and he needed to follow up with his doctors.  \nHe thought he had worked three days but had not worked for the Respondents since then.  \nHe went on to testify that he continued to suffer pain and discomfort in his shoulders and \nback. (Tr. 13, 14) \n The  claimant  was  then  questioned  about  a  picture  of  his  personal  vehicle.  The \nvehicle was involved in a later motor vehicle accident on January 6, when his car was hit \nwhile stopped at a stop sign. The claimant stated that he got out of the car to ask why the \ncar had hit him in the back and before he could obtain insurance information, it left the \nscene of the accident. (Tr. 15) He went on to testify that he was able to get his car repaired \nfor  $169.00, and if he sustained any injuries, he “couldn’t differentiate  what  was  what \nbecause  everything  that  was  happening,  I  was  already  experiencing  it,  anyway.  I  was \nalready in pain.” (Tr. 16) The claimant testified he eventually had surgery for a rotator cuff \ntear and a partial tear in his bicep on August 19, 2024, he believed. He was still having \nproblems  and  was  not  aware  of  any  doctor  releasing  him  to  return  to  work. He  also \ntestified that he told another employee about the accident, who in turn told the supervisor, \nwhich in turn caused more problems for his family. The conversation occurred on January \n7\nth\n, and on January 8\nth\n, he was told that workers’ comp would not be awarded anymore \n\nMARCIE HILL – H404078 \ndue to the second accident. He stated that he has received no money from workers’ \ncompensation since January 8\nth\n, 2024. He thinks he is still employed by the respondent, \nand his health insurance has been paying for his medical treatment. He went on to state \nthat he was not able to physically work his old job. He still had a limited range of motion \ntrying  to put  his  arm  over  his  head,  and  the job  required him to  lift  tarps weighing 150 \npounds over  his  head.  He  also  stated  that  strapping  down  the tarps  involved a  lot  of \nkneeling and bending and stooping and climbing up on the top of the trailer. (Tr. 17- 21)  \n Under  cross  examination,  the  claimant  admitted  that  he  was  contesting  about \n$90,000 in child support arrearages. He explained that it was two separate child support \ncases for the same children, with one being in Tennessee and one in Mississippi. (Tr. 22) \nHe also admitted that during his deposition he did not remember hitting anything inside \nthe cab of his truck. He thought he lost control of his truck for a minute but gained control \nof it after the impact. He was not knocked off the interstate. His wife drove over and picked \nhim  up  and  took  him  to  the  Baptist  Emergency  Room.  He  also  admitted  that  in  his \ndeposition, he testified he had told the people at Baptist that he hurt his back, left leg, and \nshoulder. (Tr. 23, 24). \n The  claimant  admitted  that  his  adjuster,  Arlette  Williams,  had  scheduled  an \nappointment on the 9\nth\n with Doctor Meridith, but that he received a call the day before his \nscheduled visit that stated it had been cancelled. He also admitted he went ahead with \nthe visit and put it on his Blue Cross Blue Shield. He also admitted receiving short-term \ndisability which was no longer being paid. The payments for it were taken out of his check \nevery week. (Tr. 25) The claimant also admitted his doctors at Baptist in West Memphis \nonly took him off work for a few days and then asked him to follow up with his primary \n\nMARCIE HILL – H404078 \nphysician. He also admitted that he was driving his wife’s Jeep at the time of the second \naccident and that his wife was taken from the scene of the second accident by ambulance.  \nAdditionally, he admitted that he had testified in his deposition that he did not go anywhere \nfor treatment after the January 6\nth \naccident. He also admitted that prior to December 26, \nhe  had  been  told that he  had  bursitis in  his left  shoulder  by  Dr.  Miller  at  the  Campbell \nClinic back around 2018.  (Tr. 26, 27)  \n The claimant also admitted that he had gone to Levy Dermatology due to the fact \nhe thought the first motor vehicle accident caused him to lose hair on several spots on \nhis head. He also admitted going to the Baptist Emergency on December 27\nth\n, after the \nfirst accident. He was then questioned about a statement he made during his visit to the \nBaptist West Memphis Emergency Room about going 80 miles per hour at the time of the \naccident when he was hit, and he denied that he was going that speed at the time of the \naccident during his testimony. He was also questioned about the report providing that his \nshoulder was normal on the December 27\nth\n visit, and he stated that he was not aware of \nthat.  He  agreed  he  was  told  that  he  could  return  to  work  on  December  30\nth\n.  He  also \nadmitted to a lumbar spine study on January 4\nth\n, and a report from the Campbell Clinic \nthat  provided  he  had  bilateral  rotator  cuff  tendinitis  since  July  of  22.  He  was  then \nspecifically  asked  about  the  report  reflecting  he  was  at  the  clinic  for  cervical  and  left \nshoulder  symptomatology  he  thought  was  due  to  a  January  6\nth\n of 2024  motor  vehicle \naccident and he responded that “It was the wrong date, correct accident but the wrong \ndate, you know.”  He admitted he told the doctor that he was the driver of a Jeep Cherokee \nthat  was  struck  from  behind. He  was  also  questioned  about  a  report  from  Levy \nDermatology dated February 21\nst\n of 24 that provided that his chief complaint was hair loss \n\nMARCIE HILL – H404078 \non the scalp which the claimant agreed to but not to the report providing that it was due \nto an accident in January of 24. (Tr. 26 – 31) On redirect, the claimant testified he never \nhad a torn rotator cuff, but that he did tell them about the bursitis. (Tr. 32)  \n   The claimant’s medical exhibit consisted of 90 pages including a two-page index.  \nThe claimant presented to the Baptist ER on December 27, 2023, with complaints of lower \nback, left side and left leg pain, following an incident that involved one eighteen-wheeler \nrear  ending  his eighteen-wheeler while  traveling  80  miles  an  hour  and  wearing  his \nseatbelt. The report provided for associated abdominal and back pain but no extremity \npain  and  loss  of  consciousness.  Imaging  was  negative  for  an  acute  fracture, but  soft \ntissue injuries were  noted.  The  claimant  was  prescribed  Flexeril  and  Ibuprofen  and \nadvised to follow up with his primary care provider. The clinical impression provided for \nmultiple contusions and back pain in an unspecified location. (Cl. Ex. 1 – 15) \n On January 9, 2024, the claimant presented to Dr. Trent Pierce for a follow-up to \nthe motor vehicle accident that the report stated occurred on January 6, 2024, when he \nwas taken to Baptist Crittenden ER, and was rear ended by a tractor trailer. The report \nprovided the claimant stated that he was having pain in his back and left leg and ankle \nand  also  suffering  from  tingling  in  his  leg.  The  report  also  provided  the  claimant  was \ninvolved in another motor vehicle accident on December 26, 2023, but that he did not go \nto the ER. The claimant was screened for PTSD. The assessment provided for a lumbar \nback injury with radiculopathy, and he was referred to the Campbell Clinic. Codeine was \nmentioned for anxiety, but the report went on to state that Xanax would be tried and that \n“I am not sure that this is work avoidance.” (Cl. Ex. 1, P. 16 – 19) \n\nMARCIE HILL – H404078 \n On  January  27,  2024,  the  claimant  presented  to  Nurse  Practitioner  Angel  D. \nGulley. The report provided that the symptoms were continuous and gradually worsening \nand the claimant stated the pain was affecting his ability to function. Under assessment, \nthe report provided that the lumbar radiculopathy was worse and that there was chronic \nlow back pain with left-sided sciatica. (Cl. Ex. 1, P. 20 – 23) \n On  February  9,  2024,  the  claimant  presented  to  Djuana  Smith,  LCSW, with  the \nchief  complaint  being stress  from accidents.  The  report provided  that  the  claimant had \nlittle  interest  or  pleasure  in  doing  things  and  had  sleeping  issues  and  felt  down  or \ndepressed. The assessment provided for current moderate episodes of major depressive \ndisorder with a prior episode and an acute distress disorder. (Cl. Ex. 1, P. 24 – 26) The \nclaimant  returned  to  Djuana  Smith,  LCSW,  on  February  29,  2024. There  was  no  chief \ncomplaint  identified  by  the  claimant. The  diagnosis  provided for  a  major depressive \ndisorder “moderate, single episode.” The goal for treatment was an “Increase ability to \nget back to normalcy regarding routine.”  (Cl. Ex. 1, P. 27 – 29) \n On March 5, 2024, Dr. Santos Martinez issued a return to work slip with a limitation \nof lifting not over 30 pounds. (Cl. Ex. 1, P. 30) On March 13, 2024, the claimant presented \nto the Mitchell Family Clinic and Dr. Koch. The claimant reported chronic low back pain \nand left sided sciatica. The claimant provided he had been undergoing physical therapy \nwhich had been improving his pain and functionality. He rated the pain on the day of the \nvisit as 4 out of 10. (Cl. Ex. 1, P. 31 – 33) The claimant then returned to Djuana Smith, \nLCSW, on April 5, 2024, and the report provided that the claimant’s anxiety level was \ndecreasing. The summary of the visit provided for circled PTSD. (Cl. Ex. 1, P. 34 – 39) \n\nMARCIE HILL – H404078 \n The claimant returned to Dr. Koch on March 14, 2024, and reported that his back \npain was improving but was exacerbated by increased activity which worsened at night. \nThe  claimant  also  reported  ongoing  pain  in  both  his  shoulders  and  his  neck  with \nmovement. The assessment provided for chronic bilateral low back pain with left sided \nsciatica. (Cl. Ex. 1, 40 – 43) \n The  claimant  returned  to  Djuana  Smith  LCSW  on  April  26,  2024.  The  claimant \ndescribed his mood as “excellent” on the visit. (Cl. Ex. 1, P. 44 – 47) He then returned to \nMitchell Family Medicine on May 15, 2024, where he reported that his low back pain was \nimproving with the physical therapy but that he was still experiencing shoulder pain and \nhad been using a tens unit and cold packs for relief. (Cl. Ex. 1, P. 48 – 49) The claimant \nthen presented to Campbell Clinic for physical therapy on June 4, 2024. The assessment \nprovided that the claimant tolerated today’s session well with no adverse reaction  but \nreported pain throughout the session. Neck pain, low back pain, and left shoulder pain \nwere mentioned. (Cl. Ex. 1, P. 50, 51) The claimant received physical therapy on May 8, \n2024, and returned to the office of Dr. Koch on May 15, 2024, and Djuana Smith LCSW \non May 20, 2024. (Cl. Ex. 1, P. 52 – 60) \n The claimant obtained an MRI on May 30, 2024. The MRI provided for a moderate \ngrade bursal sided partial tear at the anterior of the supraspinatus and supraspinatus and \nsubscapularis   tendinosis   with a posteroinferior   labral   tear   at  8 – 9  and   severe \nacromioclavicular joint osteoarthritis with periarticular osteophytes. (Cl. Ex. 1, P. 61 - 62) \n A  letter  from  Djuana  Smith-McNeely,  LCSW,  provided  that  the  claimant  initially \npresented to East Arkansas Family Health Center, Inc. on February 9, 2024, to address \nbehavioral  and  emotional  charges  resulting  from  a  motor  vehicle  accident.  He  was \n\nMARCIE HILL – H404078 \ndiagnosed   with   major   depressive   order,   single   episode,   moderate   with   anxiety, \nunspecified  and  post-traumatic  stress  disorder.  The  letter  provided  that  the  claimant \nwould benefit with continued treatment. (Cl. Ex. 1, P. 63) \n Claimant  then  returned  to  Dr.  Martinez  on  June  10,  2024,  and  the  report  again \nprovided for unspecified low back pain. The doctor stated that he would request a lumbar \nepidural for  the  left  L4-5. (Cl.  Ex.  1,  P.  64,  65) The  claimant  was  then  again  seen  by \nDjuana Smith, LCSW, on June 13, 2024. The report provided that the claimant had been \nable  to  maintain  a  positive  attitude.  In  the  report,  the  claimant  acknowledged  that  the \naccidents were accidents and not anything that he had control of. (Cl. Ex. 1, P. 66 – 72) \nOn June 18, 2024, the claimant returned to Dr. Brolin in regard to his left shoulder rotator \ncuff tear. (Cl. Ex. 1, P. 73) On June 25, 2024, claimant presented to Dr. Rivera-Tavarez, \nfor an epidural left L4 transforaminal epidural steroid injection. (Cl. Ec. 1, P. 74, 75) The \nclaimant then returned to Dr. Martinez on July 2, 2024. Among other things, the medical \nreport mentioned left shoulder surgery on September 19, 2024. (Cl. Ex. 1, P. 76 – 78) \nThe claimant again went to the office of Djuana Smith, LCSW, and expressed frustration \nwith his PCP’s office. (Cl. Ex. 1, P. 79 – 85) On August 19, 2025, Dr. Brolin performed \nsurgery on the claimant’s left rotator cuff due a tear of the supraspinatus. (Cl. Ex. 1, P. 86 \n– 88) \n Claimants  Exhibit  Two  consisted  of  eleven  pages  and  an  index.  A  Tennessee \nElectronic crash report provided that an accident occurred on December 26, 2023, and \nshowed that the claimant’s vehicle was rear ended, and he possibly suffered an injury.  \nThe vehicle that rear-ended the claimant’s vehicle suffered disabling damage. The report \nwent on to report that the lane was blocked at 8:51 p.m. on December 26 and opened \n\nMARCIE HILL – H404078 \nback up at 12:16 a.m. on December 27. (Cl. Ex. 2, P. 1 – 7). The claimant also submitted \nphotographs of his personal vehicle that was involved in the second accident on January \n6, 2024, and this accident was non-work related. The photographs showed a Jeep, with \nan Arkansas tag that could use a car wash, with very little damage, and mainly suffering \nfrom a paint scrape. (Cl. Ex. 2, 8 – 10) \n The respondents also submitted 34 pages of medical records including an index.  \nThe records from Baptist Memorial Hospital provided that the claimant was traveling at \n80 miles per hour with his seat belt on, when he was rear ended. The record also provided \nthat the claimant came directly to the emergency department and that the accident had \nhappened  90  minutes  earlier.  (Resp.  Ex.  1,  P.  1-6)  An  x-ray  of  the  lumbar  spine  on \nJanuary 4, 2024, provided under impression, that arthritic changes involving L4 through \nS1 were noted but that no acute abnormality was identified. (Resp. Ex. 1, P. 17) A chart \nnote from Dr. Martinez and the Campbell Clinic dated February 8, 2024, referred to the \nmotor vehicle accident on January 6, 2024, while driving a Jeep Cherokee in a stationary \nposition when he was hit from behind by another vehicle. The chart notes also referred to \nanother vehicle accident and the claimant stated that the low back pain was purely from \nthe Workers’ Compensation case back in December. (Resp. Ex. 1, P. 18 – 20) A chart \nnote from Levy Dermatology provided that the claimant presented with hair loss after an \naccident in January. (Cl. Ex. 21, 22) \n The respondents also submitted two chart notes from Djuana Smith, LCSW, with \nthe first note dated April 26, 2024, which provided that the claimant’s mood was good.  \nThe  chart notes of  May  20,  2024,  provided  that  the  claimant  received  news  about  his \nreturn to work. The claimant reported that his primary care provided opined that he was \n\nMARCIE HILL – H404078 \nable  to  return  to  work  with  restrictions,  and  he  was  worried  about  reinjuring  himself.   \n(Resp. Ex. 1, P. 23 – 33)   \n The respondents also submitted twenty pages including an index of non-medical \nrecords. Page 1-6 provided for route schedules. Pages 7 -19 showed post injury wage \nrecords and along with deductions for various insurances and for the café plan. (Resp. \nEx. 2. P. 1- 19) \n The final exhibit for the respondents was the deposition of Arlette Williams. She \ntestified that she was the CCMSI area third party administrator and she obtained workers’ \ncompensation reports when people were injured on the job or when they file a claim. She \nhad been performing this type of work for a little over 35 years and was familiar with the \nclaimant’s file. She arranged for the claimant to obtain medical treatment because he was \nunable  to  return  to  driving  until  he obtained a  medical  release.  She  scheduled  an \nappointment  for  the  claimant  with  Dr.  Meredith  in  West  Memphis  and  instructed the \nclaimant he needed to bring a list of his medications and needed to get an x-ray of his \nlumbar spine, since he was complaining about it. He did not obtain the x-ray and did not \nbring  the  list  of  medications, but  did  go  to  the  appointment. Since  he  did  not  have  the \ninformation, the  appointment was rescheduled. She  then  contacted  the  claimant  and \nasked him why he did not do what he had been told to do but she did not remember the \nexact words of his response. \n She further testified she later learned that he had been involved in another motor \nvehicle accident through an ISO index report, prior to him returning to Dr. Meridith. She \nthen contacted the claimant, who stated that he was in worse pain after the accident, so \nthe treatment was not authorized. The claimant wondered how I found out about his motor \n\nMARCIE HILL – H404078 \nvehicle accident over the weekend, and she stated that she explained the index system, \nand that they had received a report about the accident.          \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving by a preponderance of the evidence that he is entitled to compensation benefits \nfor his claimed injuries. In determining whether the claimant has sustained his burden of \nproof, the Commission shall weigh the evidence impartially, without giving the benefit of \nthe doubt to either party.  Ark. Code Ann 11-9-704.  Wade v. Mr. Cavanaugh’s, 298 Ark. \n364, 768 S.W. 2d 521 (1989). Further, the Commission has the duty to translate evidence \non all issues before it into findings of fact. Weldon v. Pierce Brothers Construction Co., \n54 Ark. App. 344, 925 S.W.2d 179 (1996). \nHere, there appear to be multiple discrepancies in the evidence, some probably \naccidental,  but  still  present. The  claimant  testified  during  the  hearing  that  he  was  rear \nended by an eighteen-wheeler after he pulled back out on the highway in the eighteen- \nwheeler that he was driving, after reaching a speed of 55 miles per hour. The police report \nprovided that the vehicle that rear ended him suffered disabling damage. The driver of \nthe vehicle that hit the claimant left in an ambulance and the claimant left with his wife \nwho drove him from the accident scene in West Tennessee back to the Baptist hospital \nin West Memphis. The claimant’s medical report provided he was involved in an accident \nwhile traveling 80 miles per hour. Additionally, the report provided that the claimant was \nnot experiencing extremity pain and there were no immovable extremities and no loss of \nconsciousness. The  claimant  admitted,  however, that he  stated in  his  deposition that \nwhile he was at the Baptist Emergency Room in West Memphis, he told them he had hurt \n\nMARCIE HILL – H404078 \nhis  back,  left  leg,  and  shoulder. During  his  testimony,  he also admitted  he  had  been \ndiagnosed  with  bursitis  in  his  left  shoulder  prior  to  December  26, by  Dr.  Miller  at  the \nCampbell Clinic. \nThe  claimant  was  scheduled by  Arletta  Williams,  the  CCMSI  for  the  area,  for  a \ndoctor’s appointment with Dr. Meredith. He was instructed to bring x-rays  of  his  lower \nback and a list of his medications. The claimant appeared for the appointment but failed \nto bring the items requested and it was consequently rescheduled. Before he could return \nfor  the  appointment,  he  was  involved  in  another  motor  vehicle  accident  where  he  was \nagain rear ended  at  a stop  sign and  the vehicle  that hit the  rear  of his  vehicle, left  the \nscene. The vehicle the claimant was driving appeared to have received very little damage, \nbut his wife who was a passenger in his vehicle, was taken from the accident scene by \nambulance. \nMs. Arlette Williams testified that she learned that the claimant had been involved \nin  another  motor  vehicle  accident  through  an  ISO  index  report  prior  to the  claimant \nreturning to Dr. Meridith, so she contacted the claimant. She testified that the claimant \nstated  that  he  was  in  worse  pain  after  the  accident,  so  the  visit  to  Dr.  Meridith  was \ncancelled.  She  also  testified  that  the  claimant  wondered  how  she  found  out  about  his \nsecond motor vehicle accident over the weekend and that was when she explained the \nindex system, how it worked, and how they had received a report in regard to the accident.          \nUnder workers’ compensation law in Arkansas, a compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability and must  be  stated  within  a  degree  of  medical  certainty. \nSmith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).  Speculation  and \n\nMARCIE HILL – H404078 \nconjecture cannot substitute for credible evidence. Liaromatis v. Baxter County Regional \nHospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).  More  specifically,  to  prove  a \ncompensable injury, the claimant must establish by a preponderance of the evidence: (1) \nan injury arising out of and in the course of employment; (2) that the injury caused internal \nor external harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in A.C.A. 11-9-\n102 (16) establishing the injury and (4) that the injury was caused by a specific incident \nand identifiable by time and place of occurrence. If the claimant fails to establish any of \nthe requirements for establishing the compensability of the claim, compensation must be \ndenied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d 876 (1997). \nAn  injury for  which  the  claimant  seeks  benefits must  be  established  by  medical \nevidence supported by objective findings which are those findings that cannot come under \nthe voluntary control of the patient. A.C.A. 11-9-102 (16). It is also important to note that \nthe claimant’s testimony is never considered uncontroverted. Lambert v. Gerber Products \nCo.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  \nThe claimant in this matter is a likeable, well-dressed, and well-spoken gentleman.  \nHowever,  there  are  multiple  discrepancies  in  the  evidence  that  appear  to  result  in \nspeculation and conjecture in an attempt to satisfy the necessary requirements of proof.  \nSome of this may have resulted simply by accident due to the motor vehicle accidents \noccurring so close together. There are no specific objective medical findings in regard to \nhis  claimed  injuries. With  that  said,  it  is  clear  that  the  burden  of  proof  cannot  be \nestablished by speculation and conjecture. It is also noted that a claimant is not required \nto establish a casual connection between a work-related incident and an injury with an \n\nMARCIE HILL – H404078 \nexpert  medical  opinion.  See Walmart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  990 \nS.W.2d 522 (1999).     \nAs stated above, the workers’ compensation claimant bears the burden of proving \na compensable injury by a preponderance of the evidence. A.C.A. 11-9-102 (4) (E) (i). A \ncompensable injury is one that was the result of an accident that arose in the course of \nhis employment and that it grew out of or resulted from the employment. See Moore v. \nDarling  Store  Fixtures, 22  Ar.  App  21,  732  S.W.2d  496  (1987) Preponderance  of  the \nevidence  means  the  evidence  having  greater  weight  or  convincing  force. Metropolitan \nNat’l Bank v. La Sher Oil Co., 81 Ark App. 263, 101 S.W.3d 252 (2003). Based upon the \navailable evidence in the case at bar, there is no alternative but to find that the claimant \nhas failed to satisfy the required burden of proof to show that his claimed injuries are in \nfact  work  related and compensable under the Arkansas Workers’ Compensation Act.  \nConsequently, all remaining issues are moot. \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, there is no alternative but to find that the claimant has failed to prove by a \npreponderance  of  the  credible  evidence that  his claim for injuries  from  the  Tennessee \nmotor  vehicle  accident  on  December  26,  2023, is a compensable claim  under  the \nArkansas Workers’ Compensation Act. If not already paid, the respondents are ordered \nto pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n        ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":32688,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404078 MARCIE HILL, EMPLOYEE CLAIMANT SILICA TRANSPORT, INC., EMPLOYER RESPONDENT ARKANSAS TRUCKING ASSOCIATION SI FUND/CCMSI, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 21, 2025 Hearing before Administrative Law Judge, James D. Kennedy, on the 4...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["back","shoulder","rotator cuff","lumbar","cervical","fracture","ankle","neck"],"fetchedAt":"2026-05-19T22:43:00.067Z"},{"id":"alj-H003073-2025-03-20","awccNumber":"H003073","decisionDate":"2025-03-20","decisionYear":2025,"opinionType":"alj","claimantName":"Kenneth Brewton","employerName":"May Avenue Plumbing","title":"BREWTON VS. MAY AVENUE PLUMBING AWCC# H003073 March 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BREWTON_KENNETH_H003073_20250320.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BREWTON_KENNETH_H003073_20250320.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H003073 \n \nKENNETH BREWTON, Employee CLAIMANT \n \nMAY AVENUE PLUMBING, Employer RESPONDENT \n \nUNITED FIRE & CASUALTY CO., Carrier RESPONDENT \n \n \n OPINION FILED MARCH 20, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE GREGORY  K.  STEWART in  Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n On March  10,  2025,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort \nSmith, Arkansas.   A pre-hearing conference was conducted on January 15, 2025, and \na pre-hearing  order  was  filed  on  that  same date. A  copy  of  the  Pre-hearing  Order  has \nbeen  marked  Commission's  Exhibit  No.  1  and  made  a  part  of  the  record  without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.  The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  of  the \nwithin claim. \n 2. The prior Opinion of November 22, 2023, is final. \n 3.  The  respondent  is  paying  claimant  a  5%  impairment  rating  to  the  body  as  a \nwhole for his compensable low back injury based on the rating assigned by Dr. Bruffett. \n\nBrewton – H003073 \n \n-2- \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Claimant’s entitlement to a 13% rating to the body as a whole for his low back \ninjury. \n 2. Controversion of the difference between the 5% rating and 13% rating. \n 3. Late payment penalty. \n The  claimant  contends  that  his  primary  treating  physician  assessed  a  13% \nimpairment rating to the body as a whole regarding the claimant’s back on September 5, \n2024, and that information was sent to respondent’s attorney on September 6, 2024. \nRespondents  have  controverted  the difference  between  the 5%  rating  and  13%  rating, \nand owe a late payment penalty. \n The respondents contend that all appropriate benefits are being paid with regard \nto  claimant’s  compensable  injuries  sustained  on  January  7,  2020.  An  independent \nmedical  evaluation  has  been  conducted  by  Dr.  Wayne  Bruffett.  Dr.  Bruffett  was  asked \nwhether or not permanency would apply, and he assigned a 5% rating to the body as a \nwhole. Upon receipt of the IME report, the adjuster started timely payments associated \nwith the applicable rating. \n From a review of the record as a whole, to include medical reports, documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear  the  testimony  of  the  witnesses and  to  observe their demeanor,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \n\nBrewton – H003073 \n \n-3- \nconducted on January 15, 2025, and contained in a Pre-Hearing Order filed that same \ndate are hereby accepted as fact. \n 2. Claimant has met his burden of proving by a preponderance that he has a \n13% impairment rating to the body as a whole for his low back injury. \n 3. Respondent has controverted claimant’s entitlement to payment of permanent \npartial disability benefits in an amount equal to 8% to the body as a whole. \n 4. Respondent is not liable for payment of a late payment penalty. \n \nFACTUAL BACKGROUND \n On January 7, 2020, while working for respondent, claimant was sitting at a stop \nlight  when  he  was  struck  from  behind  by  another  vehicle.  Respondent  accepted  as \ncompensable  injuries  to  claimant’s  low  back  and  left  shoulder  as  a  result  of  that \naccident. Respondent did not accept as compensable an injury to claimant’s cervical \nspine. A hearing on compensability of claimant’s cervical spine injury was conducted on \nNovember  13,  2023.  Following  that  hearing,  an Opinion  was  filed  on  November  22, \n2023,  finding  that  claimant  had  proven  compensability  of  his  cervical  spine  injury  and \nawarding payment of medical benefits. That Opinion was not appealed and the parties \nhave stipulated that it is final. \n The  current  claim  involves  the  compensable  low  back  injury.  For  that  injury \nclaimant  initially  sought  medical  treatment  from  Dr.  Edward  Saer.  Dr.  Saer  treated \nclaimant  conservatively  and  ordered  an  MRI  scan  which  he  interpreted  as  showing \ndegenerative  changes.  In  a  report  dated  September  21,  2021,  Dr.  Saer  stated  that \nclaimant  had  reached  maximum  medical  improvement  and  that  he  had  no  permanent \n\nBrewton – H003073 \n \n-4- \nimpairment. In his report, Dr. Saer also noted that claimant had undergone a functional \ncapacity evaluation which determined that claimant was functioning in the medium work \ncategory.  Dr.  Saer  imposed  permanent  work  restrictions  on  the  claimant’s  ability  to \nreturn to work.  \n Thereafter,  claimant  came  under  the  care  of  Dr.  Blankenship  for  his  low  back \ncomplaints.  Dr.  Blankenship  also  ordered  an  MRI  scan  and  interpreted  it  as  showing \nslight  anterolisthesis  at  L4-5  with  an  annular  fissure  and  neural  foraminal  narrowing;  a \ndisc  bulge  with  facet  arthropathy  without  significant  impingement  at  L5-S1; and an \nupper lumbar facet arthropathy, less significant than at L4-5 and L5-S1. \n Dr.  Blankenship  referred  claimant  to  Dr.  Cannon  for  pain  management  and  his \ntreatment has consisted of facet injections. According to Dr. Blankenship’s report of July \n15,  2024,  claimant  is  receiving  the  facet  injections  every  three  months  and  it  provides \n75% relief which lasts 2-3 months. Dr. Blankenship also stated that as the injections are \nproviding relief, surgery would not be indicated. However, it was his opinion that it is as \nlikely  as  not  that  at  some  point  the  injections  will  not  provide  relief  and  surgery  would \nneed to be considered.  \nIn a letter to Attorney Walker dated September 5, 2024, Dr. Blankenship stated:  \nThe  patient  does  qualify  for  an  Impairment  rating  based  on \nthe  4\nth\n Edition  AMA  Guidelines.  He  does  have  a  grade  1 \nanterolisthesis  at  the  L4-5  level  which  would  qualify  under \nsubheading  3A  for  7%  impairment  to  the  body  as  a  whole. \nThe  gentleman  also  has  a  posterior  disc  protrusion  at  the \nlumbosacrum    which    would    qualify   under    2C   for    an \nunoperated on disc protrusion for 7% to the body as a whole. \nThese  would  be  combined  via  the  combined  values  table. \nHis total impairment would be 13% to the body as a whole. \n \n Following  Dr.  Blankenship’s  assignment  of  the  13%  rating,  respondent  had \n\nBrewton – H003073 \n \n-5- \nclaimant undergo an evaluation by Dr. Wayne Bruffett on October 18, 2024. At the time \nof that visit, Dr. Bruffett did not have the actual MRI scan of June 3, 2024, available to \nhim.  After  the  MRI  scan  was  provided  to  him,  Dr.  Bruffett  in  an  addendum  dated \nNovember 1, 2024, stated:  \nI was able to review the MRI scans. Honestly they look pretty \ngood.  He  has  some  mild  degenerative  changes.  On  the \nmore recent study he may have a small annular tear at L3-4. \nHe apparently had a significant injury if he required shoulder \nsurgery. So I would say with a reasonable degree of medical \ncertainty  that  he  did  sustain  injury  to  the  lumbar  spine  as \ndescribed  above.  However  he  was  treated  non  operatively \nand  I  can  not  say  that  he  has  a  specific  herniated  nucleus \npulposis.  And my opinion  an  impairment  rating of 5% of the \nwhole person based on the lumbar spine is reasonable. \n \n Based  on  the  opinion  of  Dr.  Bruffett,  respondent  accepted  and  paid  claimant \npermanent  partial  disability  benefits  based  on  the  5%  impairment  rating.  Claimant \ncontends that the 13% rating assigned by Dr. Blankenship is appropriate and requests \npayment of the difference in the ratings as well as an attorney’s fee and penalty. \n \nADJUDICATION \n The first issue for consideration is claimant’s impairment rating. As previously \nnoted,  Dr.  Blankenship  assigned  claimant  a  13%  rating  to  the  body  as  a  whole  for  his \nlow back injury and Dr. Bruffett has opined that the proper rating is 5% to the body as a \nwhole.  Based  upon  the evidence  presented,  I  find  that  Dr.  Blankenship’s  opinion  is \ncredible  and  entitled  to  greater  weight.  First,  Dr.  Blankenship  has  been  claimant’s \nauthorized treating physician and has evaluated claimant on a number of occasions. On \nthe other hand, Dr. Bruffett has evaluated the claimant only once.  \n Furthermore,  Dr.  Blankenship  specifically  references  the  4\nth\n Edition  of  the  AMA \n\nBrewton – H003073 \n \n-6- \nguides  as  a  basis  for  his  impairment  rating.  After  my  review  of  the  citations  in  Dr. \nBlankenship’s report with the AMA guides, I find that his rating is appropriate and in \naccordance with the applicable law. Therefore, I find that claimant has met his burden of \nproving by a preponderance of the evidence that he is entitled to payment of permanent \npartial  disability  benefits  based  upon  the  13%  impairment  rating  assigned  by  Dr. \nBlankenship. \n I also find that respondent has controverted the difference in payment of the 13% \nimpairment rating assigned by Dr. Blankenship and the previously accepted 5% rating.  \n The last issue for consideration involves claimant’s request for a penalty. I find \nthat under the circumstances the respondent is not liable for a late payment penalty. \n This  case  was  originally scheduled  for  a  hearing  on  respondents  Motion  to \nDismiss  for  September  9,  2024.  On  September  6,  2024,  Attorney  Walker  sent  a  letter \nattaching the September 5, 2024, report from Dr. Blankenship assigning an impairment \nrating.  Attorney  Walker  also  indicated  that  claimant  was  filing  a  claim  for  permanent \npartial  disability  benefits  and  that  the  Motion  to  Dismiss  was  now  moot.  In  an  email \nresponse  of  September  6,  2024,  Attorney  Wood  stated  that  respondent  had  no \nobjection  to  removing  the  dismissal  hearing  from  the  docket.  She  also  indicated  that \nrespondent   was   requesting   an   independent   medical   evaluation   with   respect   to \nclaimant’s permanent impairment. Respondent also suggested that the file be returned \nto  General  Files  stating  that  an  evaluation  might  eliminate  the  need  for  litigation  or \nresolve in a settlement. Attorney Walker stated that claimant did not object to returning \nthe file to General Files. Dr. Bruffett subsequently wrote the report assigning claimant a \n5%  rating  which  respondent  accepted.  However,  claimant  contended  that  the  13% \n\nBrewton – H003073 \n \n-7- \nimpairment  rating  assigned  by  Dr.  Blankenship  was  appropriate  and  this  hearing  was \nconducted. \n I  find  that  under  the  circumstances  respondent  was  entitled  to  obtain  an \nevaluation to determine whether claimant had any permanent impairment as a result of \nhis  compensable  low  back  injury  and  the  extent  of  that  impairment  rating.  In  fact,  Dr. \nBruffett  did  assign  claimant  an  impairment  rating  which  was  accepted  by  respondent. \nEven  though  I  have  found  that  the  impairment  rating  assigned  by  Dr.  Blankenship  is \nappropriate, respondent nevertheless was entitled to investigate claimant’s claim for \npermanent impairment and obtain evidence with respect to that issue.  \n Accordingly, I find that respondent is not liable for the payment of a late payment \npenalty on the impairment rating. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe  is  entitled  to payment  of  permanent partial  disability  benefits  in  an  amount equal  to \n13% to the body as a whole based upon the permanent impairment rating assigned by \nDr.  Blankenship.  Respondent  has  controverted  claimant’s  entitlement  to  payment  of \npermanent  partial  disability  benefits  in  an  amount  equal  to 8%  to the  body  as  a  whole \nbased  upon  the  difference  between  the  13%  impairment  rating  assigned  by  Dr. \nBlankenship  and  the  previously  accepted  rating  of  5%  assigned  by  Dr.  Bruffett. \nRespondent is not liable for payment of a late payment penalty. \n Pursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \n\nBrewton – H003073 \n \n-8- \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.    \n All  sums herein  accrued are payable  in a  lump  sum and  without  discount.   This \naward shall bear interest at the maximum legal rate until paid. \nRespondents are liable for payment of the court reporter’s charges for \npreparation of the hearing transcript in the amount of $278.45. \n IT IS SO ORDERED. \n \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":13380,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H003073 KENNETH BREWTON, Employee CLAIMANT MAY AVENUE PLUMBING, Employer RESPONDENT UNITED FIRE & CASUALTY CO., Carrier RESPONDENT OPINION FILED MARCH 20, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansa...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","shoulder","cervical","lumbar","herniated"],"fetchedAt":"2026-05-19T22:42:47.629Z"},{"id":"full_commission-H207258-2025-03-19","awccNumber":"H207258","decisionDate":"2025-03-19","decisionYear":2025,"opinionType":"full_commission","claimantName":"Antwaun Perkins","employerName":"Central Moloney, Inc","title":"PERKINS VS. CENTRAL MOLONEY, INC. AWCC# H207258 March 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Perkins_Antwaun_H207258_20250319.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Perkins_Antwaun_H207258_20250319.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H207258 \n \nANTWAUN J. PERKINS, \nEMPLOYEE \n \nCLAIMANT \nCENTRAL MOLONEY, INC.,  \nEMPLOYER \n \nRESPONDENT \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 19, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nAugust 6, 2024.  The administrative law judge found that the claimant failed \nto prove he was entitled to additional medical benefits.  The administrative \nlaw judge found that the claimant did not prove he was entitled to temporary \ntotal disability benefits.  After reviewing the entire record de novo, the Full \nCommission reverses the administrative law judge’s opinion.  The Full \nCommission finds that the claimant proved the medical treatment of record \nfollowing the compensable injury, including surgery performed by Dr. Birk, \nwas reasonably necessary in accordance with Ark. Code Ann. §11-9-\n\nPERKINS - H207258  2\n  \n \n \n508(a)(Repl. 2012).  We find that the claimant proved he was entitled to \ntemporary total disability benefits beginning September 18, 2023 and \ncontinuing through January 14, 2024.       \nI.  HISTORY \n Antwaun J. Perkins, now age 48, testified that he became employed \nwith the respondents, Central Moloney, Inc., in December 2019.  Mr. \nPerkins testified that he was hired to be a Coil Winder for the respondent-\nemployer.  The parties stipulated that the employment relationship existed \non or about September 27, 2022.  The claimant testified on direct \nexamination: \n Q.  Now, what happened back in September 27\nth\n of 2022? \nA.  Okay.  I was working that night.  They had one that was \nbad and the coil was already made and I had to redo it.  I had \nto put it up on the mandrel....and as I attempted to put it on \nthe mandrel, it slipped off and I caught it and that’s when I felt \nthe pain in my right shoulder.   \n \n The parties stipulated that the claimant “sustained a compensable \nright shoulder injury” on or about September 27, 2022.  According to the \nrecord, the claimant treated at Jefferson Regional Medical Center on \nSeptember 28, 2022:  “Reports that yesterday while at work he was loading \na coil onto a raised surface and the coil slipped.  To avoid letting the coil fall \nhe reports he used his arm to push it back up and heard a popping \nsensation with immediate pain in the right shoulder....Describes pain as \n7/10 and aching, was throbbing last night but now is an ache.”   \n\nPERKINS - H207258  3\n  \n \n \n An x-ray of the claimant’s right shoulder was taken on September 28, \n2022 with the impression, “Normal exam.”  An APRN diagnosed “1.  \nShoulder strain, right, initial encounter” and “2.  Work related injury.”  The \nclaimant was treated conservatively and was assigned work restrictions.   \n An MRI of the claimant’s right upper extremity was taken on October \n24, 2022 with the following conclusion: \n1. Moderate degenerative changes of the acromioclavicular \njoint.  There is also capsular edema, which could be \nreactive/degenerative in nature or indicative of a \nsuperimposed low-grade capsular injury.  AC alignment is \nmaintained.   \n2. Mild tendinopathy of the supraspinatus and infraspinatus \ntendons without discrete tear.   \n \n Dr. Charles E. Pearce examined the claimant on October 31, 2022: \n46-year-old male who presents as a new patient for evaluation \nof R shoulder pain.  He was lifting a large metal coil on the \nabove-noted date when it slipped and he caught it primarily \nwith his R arm with the arm at his waist.  He felt a pop in the R \nshoulder and experienced immediate pain.  He has had \ncontinued pain since that time....He has completed a course \nof physical therapy although it was of minimal benefit.  He has \nbeen on light duty at work due to his continued shoulder \npain....His pain is primarily over the AC joint.   \nIMAGING:  Radiographs of the R shoulder demonstrate no \nacute osseous abnormalities.  No degenerative changes \nnoted.  Glenohumeral joint is reduced. \nOutside MRI of the R shoulder reviewed.  Rotator cuff tendons \nare intact.  Biceps is located within the groove.  There is \nsignificant edema in the distal clavicle and AC joint capsule.   \n \n Dr. Pearce’s impression was “46-year-old male with acute R AC joint \narthrosis caused by on the job injury as described above.”  Dr. Pearce \n\nPERKINS - H207258  4\n  \n \n \nplanned conservative treatment and he continued the claimant’s work \nrestrictions.   \n Dr. Pearce reported on December 5, 2022: \nThe patient returns for follow-up.  Therapy has been very \nhelpful.  He is having some mild symptoms still about his \nshoulder but seems to be functional.  I think he needs to \ncontinue with home stretching and strengthening program.  \nWe will provide him with Thera-Bands today.... \nIMPRESSION:  Essentially resolved right shoulder pain \npossible underlying mild AC joint arthrosis. \nPLAN:  1.  The patient has reached maximal medical \nimprovement as of today’s date December 5, 2022.   \n2.  The patient can return to regular work duties without \nrestriction. \n  3.  We will provide the patient with Thera-Bands for home use. \n  4.  Continue home stretching daily. \n5.  The patient has sustained a 0% permanent partial \nimpairment as it pertains to the upper extremity.  This is \naccording to the guides to evaluation of permanent \nimpairment set forth by the American Medical Association, 4\nth\n \nedition.   \n6.  Recheck as needed.   \n \n The claimant testified that he felt renewed shoulder pain in \nSeptember 2023, after using a hammer at work.  Dr. Pearce reported on \nSeptember 18, 2023: \nThe patient was last seen by me on December 5, 2022 and \nreleased from care.  He had essentially resolved symptoms.  \nHe tells me that he has had some continued intermittent \ntrouble and points to his trapezius as the area of concern.  No \nnew injury.  He does do a lot of lifting at work.  He works at \nCentral Maloney.  He does not have referred pain.  He has \nbeen taking some ibuprofen as needed for pain.... \nX-rays of his right shoulder ordered and interpreted by me \nshow no bony abnormality.  X-rays of his cervical spine do \nshow some narrowing at C5-C6.   \n\nPERKINS - H207258  5\n  \n \n \nIMPRESSION:  Right shoulder girdle pain possibly cervical in \nnature.   \nPLAN:  1.  The patient is not at maximal medical \nimprovement. \n2. Either MRI scan cervical spine or referral to 1 of our spine \nsurgeons for further evaluation and care.   \n3.  Continue regular work duties. \n4.  Recheck with me as needed. \n5.  No change in impairment rating as it pertains to the \nshoulder.   \n \n An MRI of the claimant’s right shoulder was taken on October 3, \n2023 with the following findings: \nAC joint:  There is mild degenerative spurring.  Moderate soft \ntissue thickening and mild reactive marrow edema.  No joint \neffusion.  No fluid seen within subacromial/subdeltoid bursa. \nThe biceps tendon is intact.  No joint distension.  \nDegenerative signal superior labrum is suspicious for SLAP \ntear.  Consider further workup with arthrogram as clinically \nwarranted.  No paralabral cyst.   \nThe rotator cuff is intact.  Mild tendinosis infraspinatus.  No \nmuscle edema or atrophy.  No marrow abnormality.   \nIMPRESSION:  Degenerative change AC joint.  Degenerative \nsignal superior labrum.  This is suspicious for SLAP tear.  \nLack of joint distension on this evaluation.  No paralabral cyst.   \nMild tendinosis infraspinatus. \n \n Dr. Roy Burrell’s impression on October 10, 2023 was “1.  Labral \ntear of shoulder, right[.]...At this time, will refer patient to my partner for \npossible labral repair.”  Dr. Burrell also diagnosed “2.  Work related injury” \nand “3.  Right shoulder pain.”   \n Dr. Gordon Birk began treating the claimant on October 16, 2023.  \nDr. Birk planned a right shoulder arthroscopy.  Dr. Birk performed surgery \non November 9, 2023:  “Right shoulder arthroscopic debridement with \n\nPERKINS - H207258  6\n  \n \n \nsubacromial decompression and distal clavicle excision.”  The pre- and \npost-operative diagnosis was “Right shoulder pain with impingement and \nacromioclavicular joint pain.”   \n The claimant testified that he returned to work on January 15, 2024.  \nDr. Birk signed a note on January 18, 2024 which indicated, “Return to work \nwith NO restrictions on 01/16/2024.”     \n A pre-hearing order was filed on March 5, 2024.  According to the \npre-hearing order, the claimant contended, “Whether the claimant is entitled \nto surgery for his right shoulder and temporary total disability benefits.”  The \nrespondents contended, “The claimant was treated and released at MMI, \nfull-duty with no restrictions, for his compensable right shoulder injury on \nDecember 5, 2022.  The claimant sought subsequent treatment that was \nnot authorized or related to the work injury and was instead the result of a \ndegenerative condition that did not exist at the time of the initial treatment or \ntesting following the work injury.  Respondents are, therefore, not \nresponsible for the additional claimed treatment or indemnity benefits.” \n The parties agreed to litigate the following issues: \n1. Claimant’s entitlement to surgery for his right shoulder \ninjury and coverage for past medical treatment. \n2. Temporary total disability benefits from the date last \nworked to the claimant’s return to work on January 15, \n2024. \n3. All other issues reserved.   \n \n\nPERKINS - H207258  7\n  \n \n \nA hearing was held on May 9, 2024.  The claimant testified that his \nphysical condition improved as a result of surgery performed by Dr. Birk.   \nAn administrative law judge filed an opinion on August 6, 2024.  The \nadministrative law judge found that the claimant failed to prove he was \nentitled to additional medical benefits, and that the claimant did not prove \nhe was entitled to temporary total disability benefits.  The administrative law \njudge therefore denied and dismissed the claim.  The claimant appeals to \nthe Full Commission.   \nII.  ADJUDICATION \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 70 (1984).   \n\nPERKINS - H207258  8\n  \n \n \n An administrative law judge found in the present matter, “3.  The \nclaimant failed to prove by a preponderance of the evidence that he is \nentitled to additional medical benefits related to his right shoulder surgery.”  \nThe Full Commission finds that the treatment of record provided to the \nclaimant following the compensable injury was reasonably necessary in \naccordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012). \n The parties stipulated that the claimant sustained a compensable \nright shoulder injury on September 27, 2022.  The claimant testified that he \ninjured his right shoulder while attempting to prevent a heavy industrial coil \nfrom falling.  The claimant was diagnosed as having a work-related right \nshoulder strain.  A subsequent MRI of the claimant’s right shoulder showed \n“capsular edema.”  This objective finding was not present prior to the \nstipulated compensable injury.  Dr. Pearce noted on October 31, 2022, \n“There is significant edema in the distal clavicle and AC joint capsule.”  \nHowever, Dr. Pearce opined on December 5, 2022 that the claimant had \nreached maximum medical improvement.  Dr. Pearce returned the claimant \nto regular work duty.  The claimant returned to work for the respondents, \nbut he continued to suffer from post-injury pain in his right shoulder.   \n Following an MRI of the claimant’s right shoulder on October 3, \n2023, Dr. Burrell examined the claimant on October 10, 2023 and reported \na “labral tear.”  Dr. Burrell diagnosed “work-related injury” and “Right \n\nPERKINS - H207258  9\n  \n \n \nshoulder pain.”  The administrative law judge described Dr. Burrell’s \ntreatment as “unauthorized care.”  Nevertheless, it is well-settled that \nunless there is a signed and delivered Form AR-N in the record, the \nclaimant is not bound by change of physician rules.  Tempworks Mgmt. \nServices v. Jaynes, 2023 Ark. App. 147.  Because there was not a signed \nForm AR-N in the record, the claimant was free to seek reasonably \nnecessary medical treatment from any physician of record.  Id.   \n It is the duty of the Full Commission to enter findings in accordance \nwith the preponderance of the evidence and not on whether there is \nsubstantial evidence to support an administrative law judge’s findings.  \nRoberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  In \nworkers’ compensation cases, the Commission functions as the trier of fact.  \nBlevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988).  The \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into fact only those portions of \nthe testimony it deems worthy of belief.  Farmers Co-op v. Biles, 77 Ark. \nApp. 1, 69 S.W.3d 899 (2022).  An administrative law judge’s credibility \ndetermination is not binding on the Full Commission.  Roberts, supra \n The Full Commission finds in the present matter that the claimant \nwas a credible witness.  The evidence demonstrates that the claimant’s \ncontinued right shoulder complaints, which continued after Dr. Pearce’s \n\nPERKINS - H207258  10\n  \n \n \nrelease, were causally related to the stipulated compensable injury rather \nthan to a pre-existing degenerative condition.  The Commission also has \nthe duty of weighing medical evidence and, if the evidence is conflicting, its \nresolution is a question of fact for the Commission.  Green Bay Packaging \nv. Bartlett, 67 Ark. App. 332, 999 S.W.2d 695 (1999).  It is within the \nCommission’s province to weigh all of the medical evidence and to \ndetermine what is most credible.  Minnesota Mining & Mfg. v. Baker, 337 \nArk. 94, 989 S.W.2d 151 (1999).  We find in the present matter that the \nopinions of Dr. Burrell and Dr. Birk are credible and are entitled to \nsignificant evidentiary weight.  The evidence demonstrates that surgery \nperformed by Dr. Birk on November 9, 2023 was reasonably necessary in \nconnection with the stipulated compensable injury.  As we have noted, the \nclaimant testified that his physical condition improved as a result of surgery \nperformed by Dr. Birk.  Post-surgical improvement is a relevant \nconsideration in determining whether surgery was reasonably necessary.  \nHill v. Baptist Medical Center, 74 Ark. App. 250, 48 S.W.3d 544 (2001). \n After reviewing the entire record de novo, the Full Commission finds \nthat the treatment of record provided to the claimant following the stipulated \ncompensable injury, including surgery performed by Dr. Birk on November \n9, 2023, was reasonably necessary in accordance with Ark. Code Ann. §11-\n9-508(a)(Repl. 2012).  Said reasonably necessary medical treatment shall \n\nPERKINS - H207258  11\n  \n \n \nbe the responsibility of the respondents in the present matter.  The \nevidence demonstrates that the claimant re-entered a healing period and \nwas totally incapacitated from earning wages beginning September 18, \n2023 and continuing through January 14, 2024.  The claimant testified that \nhe returned to work for the respondents on January 15, 2024.  The claimant \ntherefore proved that he was entitled to temporary total disability benefits \nbeginning September 18, 2023 and continuing through January 14, 2024.  \nSee Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 \n(1981).  The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \non appeal to the Full Commission, the claimant’s attorney is entitled to an \nadditional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b)(Repl. 2012). \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \n\nPERKINS - H207258  12\n  \n \n \n  I respectfully dissent from the majority’s opinion finding the claimant \nproved the medical treatment of record following the compensable injury \nincluding the surgery performed by Dr. Birk was reasonably necessary, the \nclaimant was entitled to temporary total disability benefits beginning \nSeptember 18, 2023, and continuing through January 14, 2024, and the \nclaimant’s attorney is entitled to fees for legal services. \nThe claimant sustained a compensable injury to his right shoulder on \nSeptember 27, 2022, while employed by the respondent employer.  The \nclaimant who initially reported his injury was treated at Jefferson Regional \nMedical Center on September 28, 2022.  \nOn December 5, 2022, Dr. Charles Pearce, an orthopedic surgeon, \nreleased the claimant to return to work at regular duties without restrictions.  \nHe also advised the claimant had reached maximum medical improvement \nand had sustained a 0% permanent partial impairment rating.  \n In September 2023, a year after the incident in question, the claimant \nalleged he felt shoulder pain, which he reported to his employer.  The \nclaimant was again treated by Dr. Pearce who examined the claimant and \nfound no evidence of a new injury.  Dr. Pearce noted the claimant could \ncontinue regular work duties with no change in his impairment rating.  The \nrespondent carrier then terminated authorization of medical treatment. \n\nPERKINS - H207258  13\n  \n \n \nIt was not until an October 3, 2023 MRI that Dr. Roy Burrell, with \nwhom the claimant treated without authorization of the respondent carrier, \nnoted “[d]egenerative signal superior labrum.  This is suspicious for SLAP \ntear,” and referred the claimant to his partner, Dr. Gordon Birk, for possible \nlabral tear.  \nThe claimant underwent a right shoulder arthroscopy on November \n9, 2023, and surgical notes revealed there was no tear, only some fraying \naround the labrum.  The claimant returned to work on January 14, 2024. \n The claimant has filed an appeal from the administrative law judge’s \nopinion finding he has not met his burden of proving he is entitled to \nadditional benefits related to his right shoulder surgery and has not met his \nburden of proving he is entitled to temporary total disability benefits.  \nArk. Code Ann. § 11-9-508(a) requires an employer to provide an \nemployee with medical and surgical treatment \"as may be reasonably \nnecessary in connection with the injury received by the employee.\"  The \nclaimant has the burden of proving by a preponderance of the evidence the \nadditional treatment is reasonable and necessary.  Nichols v. Omaha Sch. \nDist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \n\nPERKINS - H207258  14\n  \n \n \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013).  \nIn workers’ compensation cases, a decision often rests solely on the \ncredibility of the claimant as a witness.  A determination of the weight and \ncredibility of a witness' testimony is exclusively within the province of the \nCommission.  Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 \n(1989).  The Commission has the right to believe or disbelieve the \ntestimony of any witness, and the Commission's decision is entitled to the \nweight we give a jury verdict.  Tyson Foods, Inc. v. Disheroon, 26 Ark. App. \n145, 761 S.W.2d 617 (1988). \n An October 24, 2022 MRI revealed: \n1. Moderate degenerative changes of the \nacromiclavicular joint. There is also capsular edema, \nwhich could be reactive/degenerative in nature or \nindicative of a superimposed low-grade capsular \ninjury.  AC alignment is maintained. \n \n2. Mild tendinopathy of the supraspinatus and \ninfraspinutus tendon without discrete tear. \n \nDr. Pearce opined the MRI reflected “[m]oderate AC Joint \ndegeneration”.  However, by December 5, 2022, the claimant’s shoulder \ninjury had “essentially resolved” when Dr. Pearce opined: \n\nPERKINS - H207258  15\n  \n \n \n1. The  patient  has  reached  maximal  medical \nimprovement as of today’s date December \n5, 2022. \n2. The patient can return to regular work duties \nwithout restriction. \n3. We will provide the patient with Thera-\nBands for home use. \n4. Continue with home stretching daily. \n5. The patient has sustained a 0% permanent \nimpairment   set   forth   by   the   American \nMedical Association, 4\nth\n Edition. \n6. Recheck as needed. \n \n The claimant did not seek additional medical treatment or report any \nfurther pain to the respondent employer until approximately one year after \nthe initial injury.  \nOn September 18, 2023, Dr. Pearce once again examined the \nclaimant finding no new injury and no abnormalities or instability in his right \nshoulder.  X-rays revealed “some narrowing at C5-C6” but no bony \nabnormality.  Id.  The respondents then denied any further medical \ntreatment and the claimant began seeking unauthorized treatment.  \nAn October 3, 2023 MRI revealed:  \nAC Joint:  There is mild degenerative spurring. \nModerate soft tissue thickening and mild \nreactive marrow edema.  No joint effusion.  No \nfluid seen within subacromial/subdeltoid bursa.  \n \nThe biceps tendon is intact.  No joint \ndistention.  Degenerative signal superior \nlabrum is suspicious for SLAP tear.  Consider \nfurther workup with arthrogram as clinically \nwarranted. No paralabral cyst.  \n \n\nPERKINS - H207258  16\n  \n \n \nThe rotator cuff is intact.  Mild tendinosis \ninfraspinatus. No muscle edema or atrophy. \nNo marrow abnormality.  \n \nIMPRESSION:  Degenerative change AC joint. \nDegenerative signal superior labrum.  This is \nsuspicious for SLAP tear.  Lack of joint \ndistention on this evaluation.  No paralabral \ncyst.  Mild tendinosis infraspinatus. \n \nAt an October 16, 2023 visit, Dr. Timmothy Reece recommended a \nright shoulder arthroscopy, which the claimant underwent on November 9, \n2023.  While conducting surgery, Dr. Gordon Birk observed some fraying \naround the labrum, but no tears.  \nThe claimant was released at maximum medical improvement in \nDecember 2022, and was not examined again until September 2023, a year \nafter the injury in question.  Dr Pearce advised in his note dated September \n18, 2023, the claimant’s right shoulder appeared normal with full motion, \ngood strength, and no instability.  The X-ray of the shoulder showed no \nbony abnormalities.  There was no change in his 0% anatomical rating, and \nhe was released to continue regular work duties.  \nThe unnecessary surgery performed on November 9, 2023, by Dr. \nGordon Birk confirmed the findings of Dr. Pearce that there were no tears, \nno significant lesions and no significant loss in any of the areas inspected.  \nThe only findings as a result of the surgery were some minor degenerative \nchanges for which the respondents are not responsible.  \n\nPERKINS - H207258  17\n  \n \n \nThe gap in time between the claimant’s initial injury and his reports of \nongoing pain a year later is significant.  Dr. Pearce did not discuss or \nrecommend any treatment or surgery following his September 2023 \nexamination of the claimant, nor did he observe any abnormalities.  \nThe surgery performed by Dr. Birk confirmed the findings of Dr. \nPearce.  The claimant had an unnecessary surgery which proved he had no \ntears, only underlying and pre-existing degenerative problems which are not \ncompensable.  \nAccordingly, for the reasons set forth above based on my review of \nthe testimony and the medical records, I must dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":24821,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H207258 ANTWAUN J. PERKINS, EMPLOYEE CLAIMANT CENTRAL MOLONEY, INC., EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 19, 2025","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["back","shoulder","strain","rotator cuff","cervical"],"fetchedAt":"2026-05-19T22:29:44.542Z"},{"id":"full_commission-H303020-2025-03-19","awccNumber":"H303020","decisionDate":"2025-03-19","decisionYear":2025,"opinionType":"full_commission","claimantName":"Casey Thompson","employerName":"Locomotive Service, Inc","title":"THOMPSON VS. LOCOMOTIVE SERVICE, INC. AWCC# H303020 March 20, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Thompson_Casey_H303020_20250319.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Thompson_Casey_H303020_20250319.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H303020 \n \nCASEY THOMPSON, EMPLOYEE  CLAIMANT \n \nLOCOMOTIVE SERVICE, INC., EMPLOYER RESPONDENT \n \nBERKSHIRE HATHAWAY HOMESTATE,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED MARCH 19, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MICHAEL L. ELLIG, Attorney at \nLaw, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE ZACHARY F. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed September 27, 2024.  In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at a pre-hearing \nconference conducted on June 20, 2024, and contained in a pre-\nhearing order filed that same date are hereby accepted as fact.  \n \n2. Claimant has failed to prove by a preponderance of the evidence \nthat he suffered a compensable injury on February 26, 2023.  \n \n \n\n \nTHOMPSON - H303020  2\n  \n \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's September \n27, 2024 decision is supported by a preponderance of the credible \nevidence, correctly applies the law, and should be affirmed.  Specifically, \nwe find from a preponderance of the evidence that the findings of fact made \nby the Administrative Law Judge are correct and they are, therefore, \nadopted by the Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite concurs. \n \nCONCURRING OPINION \n After my de novo review of the entire record, I concur with the \nmajority opinion finding that the Claimant failed to prove by a \n\n \nTHOMPSON - H303020  3\n  \n \n \npreponderance of the evidence that he suffered a compensable injury on \nFebruary 26, 2023.  \nTo establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence.  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002).  \nThe employer takes the employee as he finds him.  Conway \nConvalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. \nApp. 1979).  A pre-existing disease or infirmity does not disqualify a claim if \nthe employment aggravated, accelerated, or combined with the disease or \ninfirmity to produce the disability for which compensation is sought.  See, \nNashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 \n(1990); Conway Convalescent Center v. Murphree, 266 Ark. 985, 585 \n\n \nTHOMPSON - H303020  4\n  \n \n \nS.W.2d 462 (Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. \nApp. 30, 917 S.W.2d 550 (1996).  An increase in symptoms of a pre-\nexisting degenerative condition is sufficient to establish a compensable \ninjury.  Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d \n449 (2004). \nWhile the Claimant is credible, and was clearly involved in an \naccident on February 26, 2023, while at work, there is insufficient proof in \nthe record that Claimant sustained objective injuries.  Further, although \nClaimant experienced his cervical symptoms after the February 26, 2023 \nwork accident, no physician in the record states that Claimant’s symptoms \nare related to the incident.  \nFor the foregoing reasons, I concur with the majority but write \nseparately for the benefit of the Claimant.   \n \n    ___________________________________ \n  M. SCOTT WILLHITE, Commissioner","textLength":4567,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303020 CASEY THOMPSON, EMPLOYEE CLAIMANT LOCOMOTIVE SERVICE, INC., EMPLOYER RESPONDENT BERKSHIRE HATHAWAY HOMESTATE, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 19, 2025 Upon review before the FULL COMMISSION in Litt...","outcome":"affirmed","outcomeKeywords":["affirmed:1","denied:1"],"injuryKeywords":["cervical"],"fetchedAt":"2026-05-19T22:29:44.547Z"},{"id":"alj-H306376-2025-03-19","awccNumber":"H306376","decisionDate":"2025-03-19","decisionYear":2025,"opinionType":"alj","claimantName":"Judy Gipson","employerName":"American Stitchco Inc","title":"GIPSON VS. AMERICAN STITCHCO INC. AWCC# H306376 March 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GIPSON_JUDY_H306376_20250319.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GIPSON_JUDY_H306376_20250319.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H306376 \n \nJUDY GIPSON, EMPLOYEE   CLAIMANT \n \nAMERICAN STITCHCO INC., EMPLOYER RESPONDENT \n \nSUMMIT CONSULTING, LLC/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MARCH 19, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Harrison, Boone \nCounty, Arkansas. \n \nClaimant is pro se and did not attend the hearing. \n \nRespondents are represented by JASON M. RYBURN, Attorney, Little Rock,  Arkansas \n \nOPINION/ORDER \n \n On   November  27,  2023,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on \nSeptember 21, 2023.   Claimant was represented at the time by Fredrick S. Spencer,  who filed a motion \nto withdraw on October 31, 2024 and was allowed to withdraw on November 15, 2024.   \nOn November 25, 2024, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed her Form AR-C with the Commission, but she had not made a \nrequest for a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for \nMarch  6,  2025.    Notice  of  the  scheduled  hearing  was  sent  to  Claimant  by  certified  mail  at  the  last \nknown address in the Commission’s file.  The notice was delivered to claimant on January  31, \n2025.    Claimant did not respond to Respondent’s motion and did not appear in person at the hearing \non March 6, 2025.  \nI find it has been more than six months since prior to this hearing and that no request for a \n\nGipson-H306376 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2145,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306376 JUDY GIPSON, EMPLOYEE CLAIMANT AMERICAN STITCHCO INC., EMPLOYER RESPONDENT SUMMIT CONSULTING, LLC/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MARCH 19, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Harrison, Boone County, Arka...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:42:41.194Z"},{"id":"alj-H406406-2025-03-19","awccNumber":"H406406","decisionDate":"2025-03-19","decisionYear":2025,"opinionType":"alj","claimantName":"Larry Lacey","employerName":"J B Hunt Transport Inc.,","title":"LACEY VS. J B HUNT TRANSPORT INC., AWCC# H406406 March 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LACEY_LARRY_H406406_20250319.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LACEY_LARRY_H406406_20250319.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H406406 \n \nLARRY LACEY, EMPLOYEE   CLAIMANT \n \nJ B HUNT TRANSPORT INC., EMPLOYER RESPONDENT \n \nESIS INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MARCH 19, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents are represented by JOSEPH H. PURVIS, Attorney, Little Rock Arkansas \n \nOPINION/ORDER \n \n On  October 2, 2024, claimant filed Form AR-C, alleging a compensable injury on August 30, \n2024.   Claimant was represented at the time by Gregory R. Giles, who filed a motion to withdraw on \nDecember 5, 2024 and was allowed to withdraw on January 23, 2025.   \nOn October 23, 2024, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time.   A hearing on respondent’s Motion to Dismiss was scheduled for \nMarch 13, 2025.  Notice of the scheduled hearing was sent to Claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was delivered  to  claimant  on February  3, \n2025.    Claimant did not respond to Respondent’s motion and did not appear in person at the hearing \non March 13, 2025.  \nI find it has been more than six months since prior to this hearing and that no request for a \n\nLacey-H406406 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2105,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H406406 LARRY LACEY, EMPLOYEE CLAIMANT J B HUNT TRANSPORT INC., EMPLOYER RESPONDENT ESIS INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MARCH 19, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington County, Arkansas....","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:42:43.325Z"},{"id":"alj-H402888-2025-03-19","awccNumber":"H402888","decisionDate":"2025-03-19","decisionYear":2025,"opinionType":"alj","claimantName":"Guy Nichols","employerName":"Wal-Mart Associates, Inc","title":"NICHOLS VS. WAL-MART ASSOCIATES, INC. AWCC# H402888 March 19, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/NICHOLS_GUY_H402888_20250319.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NICHOLS_GUY_H402888_20250319.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NO.: H402888 \n \n \nGUY NICHOLS, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nWAL-MART ASSOCIATES, INC.,  \nSELF-INSURED EMPLOYER                                                                               RESPONDENT \n  \n          \n       OPINION FILED MARCH 19, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, failed to appear for the dismissal hearing.         \n \nRespondents represented  by the  Honorable Michael C. Stiles, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                      Statement of the Case      \n \n A hearing was held on March 12, 2025, in the above-referenced matter pursuant to Dillard \nv. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine \nwhether this case should be dismissed for failure to prosecute under the provisions of Ark. Code \nAnn. §11-9-702 (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule 099.13. \nOf significance, the Respondents have asked that this dismissal be granted specifically to include \nthe statutory provisions for both initial and additional workers’ compensation benefits.    \nAppropriate notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.   \nNo testimony was taken. \nThe record consists of the transcript of March 12, 2025, hearing and the documents held \ntherein.  Commission’s Exhibit 1 comprising of eighteen (18) pages, was introduced into evidence \nwithout objection, and was thus marked accordingly.     \n\nGUY – H402888 \n \n2 \n \n                                                                    History \n The procedural history of this claim includes the following:  \n On May 1, 2024, the Claimant’s former attorney filed a Form AR-C with the Commission \nalleging that the Claimant sustained a compensable injury to his right shoulder while working for \nWalmart during and in the course of his employment on February 18, 2024.  Per this document, \nthe Claimant asserted his entitlement to both initial and additional workers’ compensation benefits.  \nAlso on May 1, the Claimant’s former attorney wrote  a  letter  to  the  Commission asking  the \nRespondents to state their position within fifteen (15) days.   \n  The Respondents’ claims specialist filed a Form AR-2, with the Commission on May 8, \n2024, in response to the Form AR-C.  At that time, the respondent-carrier’s stated position was \n“Claim is compensable.”   \nOn July 26, 2024, the Claimant’s attorney filed a Motion to Withdraw as counsel of record \nin this matter for the Claimant.  Pursuant to an Order filed by the Full Commission on August 14, \n2024, the Claimant’s attorney was allowed to withdraw as counsel of record in this claim.   \n  Subsequently, there was no  action whatsoever taken on  the  part  of  the  Claimant  to \nprosecute his claim or pursue benefits.  In fact, at no time has the Claimant ever requested a hearing \nin the claim.   \nTherefore, on January  7,  2025, the Respondents  filed  a Motion  to  Dismiss Without \nPrejudice and Brief  in Support of the Motion to Dismiss, with  the  Commission,  along  with a \ncertificate of service indicating that they served a copy of the foregoing pleading on the Claimant \nvia the United States Postal Service.      \nMy  office sent  a  Notice  to  the Claimant on January 15,  2025, informing him of the \nRespondents’ motion to dismiss, and a deadline of twenty (20) days for filing a written response.  \n\nGUY – H402888 \n \n3 \n \nThis  letter  was sent  via  first-class  and  certified  mail.   Information  received  by  the  Commission \nfrom the United States Postal Service on January 30, 2025, confirms that they were unable to find \nany delivery information on this item in their records.   However, the notice sent by first-class mail \nhas not been returned to the Commission.   \n Next, pursuant to a Hearing Notice dated February 5, 2025, my office notified the parties \nthat this claim had been set for a hearing on the Respondents’ motion to dismiss.  Said dismissal \nhearing was scheduled for March 12, 2025, 10:30 a.m., with the hearing being held at the Arkansas \nWorkers’ Compensation Commission,  in Little  Rock,  Arkansas.  This  notice  was  sent  via  first-\nclass mail and certified mail. \nInformation  received  from  the  Postal  Service  shows  that  this  item  was  delivered  to  the \nClaimant’s residence, and he signed for the Hearing Notice on February 8, 2025.  The Recipient’s \nSignature section bears the Claimant’s printed name, along  with  his  signature.  Moreover, the \nnotice sent via first-class mail has not been returned to the Commission.   \nBased on the foregoing, the evidence preponderates that the Claimant received notice of \nthe dismissal hearing.      \n A hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \ndid  not appear for the dismissal hearing.    However, the  Respondents appeared  through  their \nattorney.   \nThe Respondents’ counsel essentially noted that the Claimant has failed to timely prosecute \nhis claim  for  workers’  compensation  benefits.  As  such, Counsel argued that  this  claim  be \ndismissed without prejudice under the provisions of Ark. Code Ann. §11-9-702(a)(4) and (d), as \nwell  as Commission Rule  099.13.  The Respondents’ attorney also stated that the Claimant has \nbeen paid appropriate benefits in this claim.  Counsel noted the Claimant has failed to request a \n\nGUY – H402888 \n \n4 \n \nhearing in this matter since the filing of Form AR-C, which was done more than six (6) months \nago.  Therefore, the Respondents’ attorney requested that the claim be dismissed without prejudice \nunder the foregoing statutory provisions and Commission Rule.    \n               Adjudication  \nTherefore, the statutory provisions and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) states:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nArk. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nAdditionally, Commission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n\nGUY – H402888 \n \n5 \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \never requested  a  hearing  or  otherwise made  any  effort to  prosecute  his  claim  for  workers’ \ncompensation benefits since the filing of his claim more than six (6) months ago; and nor has he \nresisted  the motion  for dismissal of his workers’ compensation claim despite  having  received \nnotice of the hearing.  Hence, the evidence preponderates that the Claimant has clearly failed to \nprosecute this claim.  Furthermore, considering all the foregoing, I am convinced that the Claimant \nhas abandoned his claim.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant to Ark. Code \nAnn.§11-9-702(a)(4)  and  (d),  along  with Commission  Rule  099.13,  this  claim  for initial  and \nadditional workers’ compensation benefits is hereby respectfully dismissed without prejudice to \nthe refiling of it within the limitation periods specified under the Arkansas Workers’ Compensation \nAct (the “Act”). \n                           FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            4. The evidence  preponderates  that  the Respondents’ motion to dismiss this \nclaim due  to  a lack  of  prosecution is  well  founded,  and  should be  hereby \ngranted, without prejudice, under the provisions of Ark. Code Ann. §11-9-\n\nGUY – H402888 \n \n6 \n \n702(a)(4) and (d), as well as Commission Rule 099.13, to the refiling of it \nwithin the limitation periods specified by law.  \n \n                                                     \n         ORDER \n \n Based  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’ compensation benefits.  This dismissal is made pursuant to the provisions of Ark. Code \nAnn. §11-9-702(a)(4) and (d), as well as Commission Rule 099.13, without prejudice to the refiling \nof this claim within the limitation periods specified under relevant law. \nIT IS SO ORDERED. \n \n \n \n        ______________________________ \n                                                                                                CHANDRA L. BLACK \n                                                                                                Administrative Law Judge","textLength":10948,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H402888 GUY NICHOLS, EMPLOYEE CLAIMANT WAL-MART ASSOCIATES, INC., SELF-INSURED EMPLOYER RESPONDENT OPINION FILED MARCH 19, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, Arkansas. The Claimant, pro ...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:42:45.480Z"},{"id":"alj-H300633-2025-03-18","awccNumber":"H300633","decisionDate":"2025-03-18","decisionYear":2025,"opinionType":"alj","claimantName":"Sammy Williams","employerName":"City Of Little Rock","title":"WILLIAMS VS. CITY OF LITTLE ROCK AWCC# H300633 March 18, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WILLIAMS_SAMMY_A_H300633_20250318.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILLIAMS_SAMMY_A_H300633_20250318.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H300633 \n \nSAMMY A. WILLIAMS, EMPLOYEE        CLAIMANT \n \nCITY OF LITTLE ROCK, SELF-INSURED EMPLOYER                   RESPONDENT \n \nRISK MANAGEMENT RESOURCES, TPA          RESPONDENT \n  \n \n \nOPINION FILED 18 MARCH 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 12 March 2025 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nWorley, Wood & Parrish, PA, Ms. Melissa Wood, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 12 March 2025. This case relates to an accepted medical-only claim for \nan injury sustained on or about 7 December 2022.  \nA First Report of Injury was filed on 12 December 2022, indicating a shoulder injury. \nThe claimant filed a Form AR-C on 7 February 2023. A Form AR-2 indicating that the \nmedical-only claim had been accepted was also filed by the respondents that day. On 30 \nMarch 2023, a Change of Physician was authorized. Then, on 9 October 2023, the \nrespondents filed an amended Form AR-2, noting additional benefits were being provided to \nthe claimant.  \nThe record reflects no further action took place on this file until 9 January 2025, \nwhen the respondents filed the immediate motion seeking a dismissal of the claim for want \nof prosecution, citing Ark. Code Ann. §§ 11-9-702(a)(4), (d) and AWCC Rule 099.13. Therein, \n\nS. WILLIAMS- H300633 \n2 \n \nthey argued that more than six months had passed without a bona fide request for a \nhearing on an issue ripe for litigation. They also stated that all appropriate benefits have \nbeen paid.  \n Notice of the respondents’ motion was sent to the claimant, consistent with AWCC \npractices, via First Class Mail and Certified Mail, on 14 January 2025. After no response or \nobjection was received by my office, a notice of a hearing on that motion was sent in the \nsame fashion on 11 February 2025. When mailings are returned to the AWCC as not \naccepted or undeliverable, those mailings are appended to the claim’s file. This file contains \nno returned mailings. \nThe respondents appeared on 12 March 2025, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no bona fide request for a hearing on an issue ripe for litigation in this claim in the \nrelevant time preceding the filing of their motion. The claimant did not appear to resist the \ndismissal of his claim. The respondents offered a number of the documents noted above into \nthe record which, collectively, were admitted as Respondents’ Exhibit No 1. That exhibit \nconsists of one index page and ten subsequent pages of forms, pleadings, and \ncorrespondence. \n Ark. Code Ann. § 11-9-702(d) states that claim for additional benefits may be \ndismissed without prejudice after six months without a bona fide request for a hearing. Our \nRule 99.13 provides for a dismissal for failure to prosecute an action upon application by \neither party. Based on the record, the available evidence, and the arguments of the \nrespondents’ counsel; I find (1) that the parties were provided with reasonable notice of the \nrespondents’ Motion to Dismiss and the hearing, (2) that the respondents’ Motion to \nDismiss should be granted pursuant to the provisions above, and (3) that this matter should \nbe dismissed without prejudice. \n\nS. WILLIAMS- H300633 \n3 \n \n \n \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3729,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H300633 SAMMY A. WILLIAMS, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED 18 MARCH 2025 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judg...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:42:39.130Z"},{"id":"alj-H402560-2025-03-14","awccNumber":"H402560","decisionDate":"2025-03-14","decisionYear":2025,"opinionType":"alj","claimantName":"Marcus Calaham","employerName":"American Rheinmetall Munition, Inc","title":"CALAHAM VS. AMERICAN RHEINMETALL MUNITION, INC. AWCC# H402560 March 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CALAHAM_MARCUS_H402560_20250314.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CALAHAM_MARCUS_H402560_20250314.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H402560 \n \n \nMARCUS CALAHAM (DEC’D), \nEMPLOYEE                                                                                                                 CLAIMANT \n \nAMERICAN RHEINMETALL MUNITION, INC.,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nLIBERTY MUTUAL INS. CORP., \nCARRIER/TPA                                                                                                       RESPONDENT  \n          \n \nOPINION FILED MARCH 14, 2025   \n \nA dismissal hearing was held before Administrative Law Judge Chandra L. Black, in El Dorado, \nUnion County, Arkansas. \n \nClaimant, unrepresented/pro se, failed to appear at the hearing.        \n \nRespondents represented  by the  Honorable Zachary  F. Ryburn, Attorney  at  Law, Little  Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on March 5, 2025, in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379, 192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702, and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \n The  record  consists  of  the  transcript  of the March 5,  2025, dismissal hearing  and  the \ndocuments held therein.  Specifically, included in the record is Commission’s Exhibit No. 1 \n\nCALAHAM – H402560 \n \n2 \n \nconsisting of eight (8) pages, and Respondents’ Exhibit 1 comprising of (13) pages was introduced \ninto evidence.  Both exhibits were introduced without any objection. \n                                                      Procedural Background \n The procedural history of this claim is as follows: \n This cause of action for a claim of workers’ compensation benefits was brought  by  the \nestate  of the deceased Claimant.  It appears that the Claimant’s surviving  widow/spouse filed  a \nclaim for death benefits and other additional benefits.  On May 23, 2024, the Claimant’s attorney \nwrote a letter to the Commission advising that he had been retained by the Claimant’s widow in \nthe above-referenced matter.  Also, on May 23, the widow’s attorney filed a Form AR-C with the \nCommission alleging that the Claimant sustained compensable injuries during the course and in \nthe scope of his employment with the respondent-employer, which resulted in his death on April \n10,  2024.   According  to this  document, the attorney asserted entitlement to both  initial  and \nadditional workers’ compensation benefits.  In fact, the attorney checked off all the boxes for every \nconceivable benefit under the law and noted on this document that a claim for death benefits was \nbeing  made.   At  that  time, the Claimant’s attorney requested that the claim be referred to an \nAdministrative Law Judge for a hearing.    \n The respondent-insurance-carrier’s attorney wrote the following letter to the Commission: \n“In response to the recently filed Form C in this matter, the claim is denied.”  Said letter was filed \nwith the Commission on May 31, 2024. \n As a result, the Clerk of the Commission, assigned/transferred this claim to my office for \na hearing.  On June 24, 2024, my office sent Prehearing Questionnaires and Preliminary Notices \nto  the  parties.  Both  parties filed timely  responses.   Therefore,  on  August  28,  2024,  I  filed  a \nPrehearing Order in this claim setting forth the parties’ stipulations, contentions, and issues to be \n\nCALAHAM – H402560 \n \n3 \n \npresented at  the  hearing.   Said hearing  was  scheduled  for  November  6, 2024, in  El  Dorado, \nArkansas.  \n However, on October 25, 2024, the Claimant’s attorney sent an email to my office stating, \nin relevant part: “... There is ongoing discovery that needs to be completed before we can proceed.  \nIn light of this, will you please send this back to general files until the parties complete discovery \nand then we will request that it be reassigned to your office for a hearing.”  \n Therefore, on October 25, 2024, I canceled the full hearing and returned the claim to the \nCommission’s general files.    \n Subsequently on October 28, 2024, the Claimant’s attorney wrote to the Commission \nstating that the Claimant’s widow informed him that she wished to terminate the attorney-client \nrelationship.  Counsel for the Claimant stated that he was asserting an attorney’s fee agreement \nand  asked  that  he  be  removed  as  attorney  of  record.    He  also asked  that notice  be  taken  of  his \nattorney’s lien and that documentation of this be made on the file.  \n In an Order filed on November 15, 2024, the Full Commission granted the motion for the \nClaimant’s attorney to withdraw as counsel of record in this matter.     \nSince this time, there has been no affirmative action taken on the part of the Claimant to \nprosecute his claim or otherwise pursue benefits.  In fact, the Claimant has not made a request for \na bona fide hearing since May 2024.  \nTherefore,  on or  about January 21,  2025, the  Respondents filed with  the  Commission a \nRespondents’ Motion to Dismiss, along with a certificate of service to the Claimant’s surviving \nspouse.  Per  this  documentation,  the  Respondents  confirmed  that  they  served  a  true  and  correct \ncopy of the foregoing pleading upon the Claimant’s widow via regular mail and by way of a faxed \ncopy.  This was done on January 17, 2025.          \n\nCALAHAM – H402560 \n \n4 \n \n  The  Commission  sent  a letter to  the Claimant’s surviving spouse on January  21,  2025, \ninforming her of the Respondents’ motion, and a deadline of twenty (20) days, for filing a written \nresponse.  This notice was sent via first-class and certified mail by way of the United States Postal \nService.   \nHowever, the Postal Service informed the Commission on January 23, 2025, that this item \nwas delivered to the Claimant’s widow’s residence and left with an individual.  Although the proof \nof delivery bears a signature, it is illegible.  Also, the letter sent to the Claimant’s surviving spouse \nvia first-class mail has not been returned to the Commission.  \nNevertheless, there has been no response from the Claimant’s surviving spouse.   \n  Pursuant to a Hearing Notice dated February 11, 2025, the Commission notified the parties \nthat the matter had been set for a hearing on the Respondents’ Motion to Dismiss.  Said hearing \nwas scheduled for March 5, 2025, at the Union County Courthouse, in El Dorado, Arkansas.  This \nnotice was sent via the United States Postal Service by way of first-class and certified mail.   \nThe tracking information received from the Postal Service shows that they delivered this \nitem to the Claimant’s residence on February 14, 2025.  This return receipt request shows that the \nClaimant’s widow signed for delivery of this notice of hearing.  The letter  notice  sent  to  the \nClaimant’s widow by first-class mail has not been returned to the Commission.  Still, there was no \nresponse from the Claimant’s widow.  However, based on the foregoing, I find that the Claimant’s \nsurviving spouse was provided with proper notice of the dismissal hearing.    \n Nevertheless, a hearing was in fact conducted on the Respondents’ motion as scheduled.  \nThe Claimant failed to appear at the hearing.  However, the Respondents appeared through their \nattorney.  Counsel for the Respondents argued, among other things, that the Claimant’s widow has \n\nCALAHAM – H402560 \n \n5 \n \nfailed to prosecute this claim for workers’ compensation benefits and that it should be dismissed \nfor want of prosecution per the laws and rules of the Commission as presented in his motion.  \n                                          Adjudication \nTherefore, the statutory provisions and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ motion for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nCommission Rule 099.13 reads:  \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n \nA review of the evidence shows that the Claimant’s surviving spouse has had ample time \nto pursue this claim for workers’ compensation benefits, but she has failed to do so.  Specifically, \nthe surviving spouse has not requested a hearing or otherwise tried to prosecute this claim since \nMay 2024, when her former attorney made a request for a hearing.  Most notably, the Claimant’s \nwidow has  not  responded  to  the  Notices  of  this  Commission, nor  has  she challenged the \n\nCALAHAM – H402560 \n \n6 \n \nRespondents’ motion  for dismissal of  her  claim.  Hence,  the evidence before  me clearly \npreponderates  that  the Claimant’s  widow has  failed  to  prosecute  this  claim  for  workers’ \ncompensation  benefits.  Moreover, I  am  convinced  that  the Claimant’s surviving  spouse has \nabandoned this claim.   \nAfter  consideration  of  the  evidence before  me,  I thus find  that  pursuant  to Ark. Code \nAnn.§11-9-702 and Commission  Rule  099.13,  this  claim  for initial  workers’  compensation \nbenefits is hereby respectfully dismissed without prejudice to the refiling of it within the limitation \nperiods specified under the Arkansas Workers’ Compensation Act (the “Act”). \n             FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents  filed  with  the  Commission a Motion to  Dismiss  this   \nclaim, for want of prosecution for which a hearing was held. \n \n3. The Claimant’s widow has not requested a hearing since May 2024.  Hence, \nthe evidence  preponderates  that she has  failed  to  prosecute this  claim  for \nworkers’ compensation benefits based upon the relevant provisions of Ark. \nCode Ann.§11-9-702 and Rule 099.13 of this Commission.       \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ Motion to Dismiss this claim due to a lack of prosecution \nis well-founded.  Therefore, the motion is hereby granted, pursuant to Ark. \nCode Ann.§11-9-702 and Commission Rule 099.13, without prejudice, to \nthe refiling of it within the limitation period specified by law.  \n \n \n \n \n \n \n\nCALAHAM – H402560 \n \n7 \n \n                                               ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut  to  dismiss  this  claim  for workers’ compensation benefits.  This  dismissal is  hereby  ordered \npursuant to the Ark. Code Ann. §11-9-702 and Commission Rule 099.13, without prejudice, to the \nrefiling of this claim within the limitation periods specified under the Act. \n          IT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               ADMINISTRATIVE LAW JUDGE","textLength":12591,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H402560 MARCUS CALAHAM (DEC’D), EMPLOYEE CLAIMANT AMERICAN RHEINMETALL MUNITION, INC., EMPLOYER RESPONDENT LIBERTY MUTUAL INS. CORP., CARRIER/TPA RESPONDENT OPINION FILED MARCH 14, 2025 A dismissal hearing was held before Administrative Law Judge Chandra L...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:42:34.814Z"},{"id":"alj-H307207-2025-03-14","awccNumber":"H307207","decisionDate":"2025-03-14","decisionYear":2025,"opinionType":"alj","claimantName":"Randy Munns","employerName":"City Of North Little Rock","title":"MUNNS VS. CITY OF NORTH LITTLE ROCK AWCC# H307207 March 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Munns_Randy_H307207_20250314.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Munns_Randy_H307207_20250314.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307207 \n \n \nRANDY D. MUNNS, EMPLOYEE CLAIMANT \n \nCITY OF NORTH LITTLE ROCK, \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. MUN. LEAGUE, \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED MARCH 14, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on January 23, 2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Neal L. Hart, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Ms. Mary K. Edwards, Attorney at Law, North Little Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On January  23,  2025,  the  above-captioned  claim  was  heard  in Little  Rock, \nArkansas.  A prehearing conference took place on November 4, 2024.  The Prehearing \nOrder  entered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection \nas  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations set  forth  in  Commission \nExhibit  1.   With  an amendment  of  Stipulation  No.  3,  they  are the  following,  which  I \naccept: \n\nMUNNS – H307207 \n \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The  employee/self-insured  employer/third-party  administrator  relationship \nexisted  among  the  parties  on  April  5,  2023,  when  Claimant  sustained  a \ncompensable  injury  to  his  lumbar  spine.    Respondents  also  paid  for \nmedical  treatment  in  the  form  of  a  peroneal  nerve  release  related  to  the \nwork injury. \n3. Respondents  accepted  this  claim  and  have  paid  medical  and  indemnity \nbenefits thereon, including permanent partial disability benefits pursuant to \nan impairment rating of twelve percent (12%) to the body as a whole that \nwas assigned by Dr. Justin Seale. \n4. Claimant’s  average  weekly  wage  of  $1,006.20  entitles  him  to \ncompensation rates of $671.00/$503.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether   Claimant   is   entitled   to   additional   medical   treatment   of   his \nstipulated  compensable  injury  in the  form  of implantation  of  a  spinal  cord \nstimulator and related treatment of Dr. Jarna Shah. \n2. Whether   Claimant   is   entitled   to   additional   temporary   total   disability \nbenefits from the date last paid to a date yet to be determined. \n3. Whether Claimant is entitled to a controverted attorney’s fee. \n\nMUNNS – H307207 \n \n3 \n \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, following amendments at the hearing, \nread as follows: \n Claimant: \n1. Claimant  contends  that  he  suffered  a  compensable  injury  to  his  lumbar \nspine  and  left  lower  extremity  while  working  for  Respondents  on  April  5, \n2023.    Surgeries  were  subsequently  performed  by  Dr.  Justin  Seale \n(lumbar fusion) and by Dr. Eric Gordon (peroneal nerve release). \n2. By  Commission  order  dated  July  3,  2024, Claimant  was  granted  a \nstatutory  change  of  physician  to  Dr.  Jarna  Shah.    She believes  that \nClaimant  suffers  from,  among  other  things,  post-laminectomy  syndrome, \nand  has  recommended  implantation  of  a  spinal  cord  stimulator.    This \nconstitutes  reasonable,  necessary,  and  related  medical  care  under  the \nAct; and Respondents should be required to provide it. \n3. Additional medical care designed to improve Claimant’s physical condition \nhas been recommended; and Claimant’s healing period has, therefore, not \nended.   As  a  consequence, he  is  entitled  to receive  additional  temporary \ntotal disability benefits from the date last paid, in February 2024, through a \ndate  yet  to  be  determined.  Throughout  that  period,  Claimant  remained \nincapable   of   working.      After   Claimant   last   received   temporary   total \ndisability benefits, he was returned to modified-duty employment.  He was \n\nMUNNS – H307207 \n \n4 \n \nfired  on  May  15,  2024,  because  Respondent  employer  could  no  longer \naccommodate his work restrictions. \n Respondents: \n1. Respondents contend that Claimant is not entitled to additional temporary \ntotal disability benefits.  He was placed at maximum medical improvement \non April 24, 2024, by Dr. Seale.  In addition, Dr. Seale assigned Claimant \na  twelve  percent  (12%)  impairment  rating.   Respondents  have  accepted \nand  are  currently  paying  this  rating.   Claimant  has  not  re-entered  his \nhealing  period  for  his  back;  therefore,  he  is  not  entitled  to  any  temporary \ntotal disability benefits past the date of April 24, 2024. \n2. Respondents further   contend   that   the   additional   medical   treatment \nrecommended by Dr. Shah is not reasonable, necessary, or related to his \ncompensable back injury. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  deposition \ntranscripts, documents, and other matters properly before the Commission, and having \nhad  an  opportunity  to  hear  the  testimony  of  Claimant  and  to  observe  his demeanor,  I \nhereby  make  the  following  findings  of  fact  and  conclusions  of  law  in  accordance  with \nArk. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n\nMUNNS – H307207 \n \n5 \n \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to additional treatment of his stipulated compensable lumbar spine \ninjury in the form of a spinal cord stimulator and related treatment that has \nbeen recommended by Dr. Jarna Shah. \n4. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  additional  temporary  total  disability  benefits  for February  7, \n2024. \n5. Claimant has proven his entitlement to a controverted attorney’s fee on \nthe indemnity benefits awarded herein, pursuant to Ark. Code Ann. § 11-9-\n715 (Repl. 2012). \nADJUDICATION \nSummary of Evidence \n Claimant was the sole hearing witness. \n In  addition  to  the Prehearing Order  discussed  above,  the  exhibits  admitted  into \nevidence in this case were Claimant’s Exhibit 1, a compilation of his medical  records, \nconsisting  of  two index  pages  and 119 pages  thereafter;  Respondents’ Exhibit  1, \nanother compilation of Claimant’s medical records, consisting of two index  pages and \n19 numbered  pages  thereafter; and Respondents’  Exhibit  2, non-medical  records, \nconsisting of 37 numbered pages. \nA. Additional Treatment \n Claimant  has  asked  that  the  Commission to  find  that  he  is  entitled  to  additional \nmedical   treatment of   his   stipulated   compensable   lumbar   spine   injury—with   that \n\nMUNNS – H307207 \n \n6 \n \ntreatment consisting of the proposed procedure outlined by Dr. Shah of the University of \nArkansas for Medical Sciences (“UAMS”) that is contained in Claimant’s Exhibit 1.  The \nJuly 24, 2024, report of Claimant’s visit to her reads in pertinent part: \nImaging: \n3/2024 MRI L Spine: \nPostoperative  change L5-S1.    No  evidence  for  neural  impingement.   Soft \ntissue left L5-S1 neural foramen without displacement of neural structures, \nthis is likely granulation tissue. \n \n5/2023 MRI L Spine \nL5-S1  severe  ligamentum  flavum  thickening,  narrowing  the  left  greater \nthan  right  lateral  recess.    Potential  exists  for  symptomatic  impingement \nupon the left greater than right descending S1 nerve roots. \n \n12/2023:    EMG  consistent  with  left  peroneal  nerve  entrapment    causing \nneuropraxia. \n \nA/P: \nBriefly, Randall D. Munns is a 61 y.o. male with a past medical history of \nback  pain  radiating to left  lower  extremity.  Pain  first  started  4/4/23  when \npatient  was  on  duty  at  work  and  a  wrench  snapped,  causing  him  to  fall \nbackwards  onto  other  tools.  S/p   L5-S1 TLIF/PSIF  9/2023,  and  2024 \nperoneal   nerve   release   with   continued   neuropathic   pain   of   LLE.  \nConsistent  with  post  laminectomy  syndrome  of  the  lumbar  spine  with  left \nlower  extremity  pain.  Has  taken  gabapentin  30mg  TID,  ibuprofen,  OTC \nmedications, neuropathics, muscle relaxants, tramadol.  Rated 10/10 pain. \nPain is severely limiting quality of life.  Patient does not smoke, does not \ntake anticoagulants. \n \nI   believe   that   the   patient   has   failed   all   other   conservative \nmanagement  including  the  following:    injections,  physical  therapy, \nand medications.  Because he has failed these past therapies, patient \ncould benefit from neuromodulation for postlaminectomy pain of the \nlumbar  spine  and  is  a  candidate  for  spinal  cord  stimulation  due  to \npost laminectomy and chronic pain syndrome.  The following research \ntrials have demonstrated the benefit of SCS in this condition:  Deer et al[.], \nNeuromodulation,  2018;  North  et  al.  2011  Neuromodulation;  Kapural  et \nal[.] 2015.  We will move forward with a trial.  We discussed the risks and \nbenefits  of  this  therapy  including  the  probabilities  of  successful  treatment \nof h[is] pain with current data available in the literature. \n\nMUNNS – H307207 \n \n7 \n \n \n(Emphasis added) \n Respondents  denied  the  recommended  treatment,  which  led  to  the  following \nletter being sent to them: \n8/8/2024 \n \nRe:  RANDALL D. MUNNS \nDOB:  6/26/1963 \n \nDear Arkansas Municipal League Worker[’]s Comp. \n \nI  am  writing on  behalf  of  Dr.  Jarna  Shah and  her  patient,  Randall  Munns \nDOB   6/26/1963   in   response   to   your   denial   of   a Thoracic   MRI, \nNeuropsychological  evaluation,  and  a Spinal Cord Stimulator Trial  CPT \n63650 for the diagnosis of Post laminectomy Syndrome of lumbar region, \nICD 10:  M 96.1, Causalgia of left lower extremity, ICD G57.72, and Low \nback  pain  ICD M54.50.  Your  denial  states  that  the  request  cannot  be \napproved because Mr. Munn‘s work injury is to his lumbar spine and not \nhis thoracic spine. \n \nPlease  consider  this  an  urgent  reconsideration  request.  This  letter \nprovides information about the patient’s medical history and diagnosis and \na statement summarizing the treatment rational[e]. \n \nPatient’s History and Diagnosis \nRANDALL  D.  MUNNS is  a  61-year-old  male  with  past  medical  history  of \nback  pain  radiating  to  the  left  lower  extremity  due  to  an  injury  sustained \nwhile  on  duty  at  work.  He  had  an  L5-S1  TLIF  and  PSIF  on  9/22/2023 \nfollowed  by  a  peroneal  nerve  release  in  2024.  He  has  continued \nneuropathic  pain  of  his  left  lower  extremity.  The  pain  is  described  as \nburning with radiation, rated as 7/10.  Symptoms have been present since \n2023  and  the  initial  inciting  event  was  a  fall.  Symptoms  are  worse  at \nnight.  Alleviating factors identifiable by the patient are none.  Aggravating \nfactors  identifiable  by  the  patient are recumbency,  sitting,  and  walking.  \nPatient  reports  recent  physical  therapy  and/or  home  exercise  program, \nwith no improvement. \n \nThe pain that Mr. Munns experiences is consistent with post laminectomy \nsyndrome of the lumbar spine with left lower extremity pain.  As shown in \nthe  research  articles  cited  below,  spinal  cord  stimulation  is  a  well-\n\nMUNNS – H307207 \n \n8 \n \nestablished   treatment   for   post-laminectomy   syndrome   that   is \nrefractory to conservative measures. \n \nFurthermore,   your   denial   letter   states   that   the   thoracic   MRI   and \nNeuropsychological  evaluation are denied  as  well.  Current  published \nguidelines recommend advanced imaging, specifically, thoracic MRI, prior \nto  the  stimulator  lead  to  placement  as  the  leads  are  placed  above  the \nlumbar   laminectomy   levels.  Preoperative   imaging   may   affect   the \napproach  and  minimize  the  risk  of  complications.  Without  advanced \nimaging  to  inform  surgical  planning,  unnecessary  risk  may  be  placed  on \nthe patient. \n \nNeuropsychological evaluations are necessary as part of the standards for \nidentifying  appropriate  patients  for  this  therapy.  To  improve  treatment \noutcomes of SCS, the evaluations help determine patient expectations as \nwell  as  emotional  and  behavioral  factors  that  may  be  affecting  the \npatient’s perception of pain.  There are specific emotional issues, ways of \nthinking, and behaviors that can specifically impede pain therapy.  These \ninclude depression, unrealistic pain expectations, the severity and location \nof  the  pain,  and  how  long  the  patient  has  suffered  from  the  condition.  \nOther elements, such as a history of substance abuse, trauma, or a lack of \na  social  support  system  can  also  have  an  impact.  As  confirmed  in  the \nresearch  article cited,  the  higher  the  anxiety  or  distress,  the  lower  the \nchance of improvement from spinal cord stimulation therapy. \n \nInterventions \nMr.  Munns  has  had  multiple  lumbar  epidural  steroid  injections  which \nhelped  mild  to  moderately  for  a  few  weeks.    Repeat  lumbar  epidural \nsteroid injections provided zero relief. \n \nConservative Treatment \nMr. Munns has tried and failed physical therapy, medications in the form of \nGabapentin, Tramadol, Ibuprofen, Naprosyn, Cyclobenzaprine, \nTizandidine, Hydrocodone, Acetaminiphen, heat, ice, and rest. \n \nImaging \nImaging reports are attached for your review. \n \nIn summary: \n3/2024 MRI L Spine \nPostoperative  change L5-S1.    No  evidence  for  neural  impingement.   Soft \ntissue left L5-S1 neural foramen without displacement of neural structures, \nthis is likely granulation tissue. \n\nMUNNS – H307207 \n \n9 \n \n \n5/2023 MRI L Spine \nL5-S1  severe  ligamentum  flavum  thickening,  narrowing  the  left  greater \nthan  right  lateral  recess.    Potential  exists  for  symptomatic  impingement \nupon the left greater than the right descending S1 nerve roots. \n \n12/2023:    EMG  consistent  with  left  peroneal  nerve  entrapment  causing \nneuropraxia. \n \nThe  following  articles  support  Spinal  Cord  Stimulation  as  an  effective \ntherapy  for  post  laminectomy  syndrome  as  well  as  the  necessity  of  a \nneuropsychological screening and a pre-procedural thoracic MRI. \n \n. . . \n \nTherefore,  it  is  the  provider’s  medical  opinion  that  a \nneuropsychological   screening,   thoracic   MRI,   and   spinal   cord \nstimulator trial is medically necessary as it could lead to a significant \nimprovement  in  his  functionality  and  quality  of  life.  Please  do  not \nhesitate to contact me if additional information is needed to approve CPT \n63650,  Spinal  Cord  Stimulator  Trial  preceded  by  a  neuropsychological \nscreening and Thoracic MRI. \n \nSincerely, \n \nVickie Carlton, RN \nInterventional Pain Prior Authorizations \nUniversity of Arkansas for Medical Sciences \n \n(Emphasis added) \n Claimant’s  counsel  wrote  Dr.  Shah  on  December  6,  2024,  asking  her  the \nfollowing three questions: \n(1) Is the additional medical treatment you’ve recommended, including \nthe  spinal  cord  stimulator,  designed  to  improve  Munns’  current \nphysical condition? \n \n(2) Would it be reasonable to place Munns in an “off work” capacity, at \nleast  until  such  time  as  the  spinal  cord  stimulator  you’ve \nrecommended is authorized and implanted? \n \n\nMUNNS – H307207 \n \n10 \n \n(3) Have  your  answers  to  the  above  questions  been  stated  within  a \nreasonable degree of medical certainty? \nShah answered “Yes” to all three questions. \n \n In  his hearing testimony,  Claimant  stated  that he  is  61  years  old  and  has  a \ngraduate equivalency degree.  He went to work for Respondent City of North Little Rock \non  July  15,  2019.    When  asked  to  recount  how  his  injury  occurred  on  April  25,  2023, \nClaimant stated: \nI was working on a backhoe that had—he had run over a tree and busted \nthe  fuel  lines  going  to  the  fuel  injector,  and  I  was  replacing  it.    And  I \nneeded a short wrench and I didn’t have one, and I was trying to bend a \nwrench.  So I went in the shop, and the shop’s not much bigger than this \ndown here at the soccer [sic], and they had all the equipment for it.  They \nhad reel mowers, John Deere gators and everything that they use for it in \nthe  shop, and  I  was  trying  to  bend  a—a  wrench,  like  I  said,  to  tighten up \nthe line, the fuel line.  And I jumped up on it and I was pushing down on it \nand it snapped and, when it did, I spun around and landed on top of a reel \nmower,  landed  on  my  back  and  my  leg  on  top  of  a  reel  mower,  and  I \nknocked the breath out of me and then hurt bad. \n \n Afterward,  Claimant  felt  pain  in  his  lower  back  and  left  leg.    Respondents  sent \nhim to Concentra Clinic the next day.  Initially, he underwent x-rays and was prescribed \nphysical  therapy  and  medication.    After  continuing  to  treat  a  Concentra,  he  eventually \nunderwent a lumbar MRI.  Thereafter, he was referred to OrthoArkansas.  At that time, \nhe  was  still  experiencing  back  and  leg  pain.    At  first,  he  was  given  more  physical \ntherapy along   with   two   epidural   steroid   injections—on   August   4   and   16,   2023, \nrespectively.  Per Claimant, the first helped “somewhat,” while the second provided no \nrelief. \n Thereafter,  on  September  22,  2023,  Dr.  Jared  Seale  operated  on  Claimant, \nperforming the following procedures: \n\nMUNNS – H307207 \n \n11 \n \n(1) Minimally   invasive   decompression   facetectomy   and   laminotomy   with \nthorough foraminotomy, left, L5-S1 \n(2) Minimally  invasive  transforaminal  lumbar  interbody  fusion,  left,  with  right \nfacet/posterior fusion, L5-S1 \n(3) Minimally invasive instrumentation, segmental, L5-S1 posterior \n(4) Insertion of machined PEEK interbody spacer, left, L5-S1 \n(5) Aspiration of bone marrow, left iliac wing \n(6) Placement of morselized autograft from decompression \n(7) Use of computer navigation, application of percutaneous instrumentation \nThe pre and post-operative diagnoses that Seale assigned Claimant were: \n1.  Foraminal disc protrusion right sustained from work injury; \n2.  Degenerative spondylolisthesis spinal instability L5-S1; and \n3.  Degenerative disc disease and foraminal stenosis L5-S1. \n At  the  hearing,  Claimant  was  asked  if  the  surgery  had  helped.    He  responded, \n“[n]ot a whole lot,” explaining: \nWell, I  was—before I had the surgery, I couldn’t take a deep breath.  My \nback hurt so bad I couldn’t take a deep breath.  After my surgery, I could \ntake a deep breath, but, I mean, that’s about all the good it did for me. \n \n Per  the  medical  records, Claimant  reported  to  Seale  on  October  25,  2023,  that \nthe  surgery  did  not  result  in  any  improvement  in  his  left  lower  extremity  pain.  \nThereafter, on December 18, 2023, Claimant underwent an electrodiagnostic study that \nwas abnormal, “suggestive of a left deep peroneal neuropathy with active denervation \nseen in the left tibialis anterior and EHL muscles.”  Dr. Rodrigo Cayme, the reading \n\nMUNNS – H307207 \n \n12 \n \nradiologist, added in his report:  “An acute on chronic left L5 radiculopathy cannot be \ncompletely ruled out.”  While  Dr.  Eric  Gordon  had  Claimant  evaluated  for  a  peroneal \nnerve release, Dr. Seale warned Claimant that the procedure “may not help him.”  In his \nDecember 27, 2023, report, Seale added: \nI  also  had  a  long  discussion  with  [Claimant]  over  causation.    He  reports \nthat  he  has  never  had  the  symptoms  prior  to  his  work  injury.    Most  likely \nhe  took  a  direct  traumatic  hit  to  the  knee  during  his  fall  causing  this \nperoneal entrapment.  The patient has an objective finding consistent with \nperoneal  nerve  entrapment  causing  a  neuropraxia.    The  patient  reports \nhaving a direct insult or trauma to the left knee during his work-related fall.  \nThe  patient’s  symptoms  began  on  and  after  the  work  injury.    Patient \nreports no previous leg symptoms prior to the work injury.  Therefore it is \nwithin  a  certain  degree  of  medical  certainty  that  at  least  51%  of  the \npatient’s  current  symptoms  in  the  left  foot  resulting  from  peroneal \nentrapment are directly related to their work injury. \n \n Dr. Gordon performed the peroneal nerve release on Claimant’s left knee on \nJanuary  29,  2024.    Unfortunately,  Claimant  reported  to  Gordon  on  February  7,  2024, \nthat  his  left  lower  extremity  pain  had  not  changed.   In  his  testimony,  Claimant  related \nthat  this  is  still  true  today;  he  is  still  suffering  from  numbness  and  burning  in  his  leg.  \nAsked if the release did any good at all, Claimant replied:  “Well, it took care of the \nproblem in my heel, it seems like, but now it’s—it goes plumb to my toes.” \n On July 3, 2024, Commission granted Claimant a one-time change of physician \nfrom Dr. Gary Frankowski to Dr. Shah and scheduled an appointment for him with Shah \non  July  24, 2024.    The  report of  that  visit  is  quoted extensively  above.  Asked  how  he \nwas feeling the day of his appointment, Claimant replied:  “I was hurting.”  He  added \nthat he was having the same type of problem that he is suffering from at present:  “I \ndoesn’t go away.”  It was Claimant’s testimony that he desires the spinal cord stimulator \n\nMUNNS – H307207 \n \n13 \n \nthat Dr. Shah has recommended.  He wants it “to get rid of the pain and to get on with \n[his]  life.”   The  initial  visit  Claimant  had  with  Shah  has  also  been  the  only  one; \nRespondents have refused to cover any treatment or follow-up with her. \n The following exchange took place: \nQ. I  want  you  to  tell  the  judge,  Randy,  exactly  how  your  back  feels \nright now, your back. \n \nA. Man, it feels like a toothache.  It’s a[n] aching, burning, throbbing \nsensation,  and  it—it—it don’t get better.  I mean, I’m in—my—my \nleg hurts from—from—from my belt to my boot.  I mean, you know, \nthat’s about the easiest way to put it, you know, and it just burns.  I \nmean, man, my—my leg’s burning and throbbing right now. \n \nAsked to rate his pain on a scale of one (1) to ten (10), with a ten constituting the worst \npain  that  one  could  imagine,  Claimant  initially  responded  that  the  pain  in  his  left  leg \nrated  twelve  (12)  and his  back,  ten  (10).    Later  in  the  hearing,  he revised  the  leg  pain \nrating to ten (10).  He stated that he experiences “bad days” ninety-nine percent (99%) \nof  the  time.    Claimant  states  that  he  walks  to  help  his  back,  when  the  weather  is  fair.  \nHis back condition makes it hard for him to sleep. \n Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states  that  an \nemployer  shall  provide  for  an  injured  employee  such  medical  treatment  as  may  be \nnecessary  in  connection  with  the  injury  received  by  the  employee.   Wal-Mart  Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \n\nMUNNS – H307207 \n \n14 \n \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    The \nstandard “preponderance of the evidence” means the evidence having greater weight or \nconvincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet \nCove   Barium   Corp.,   212   Ark.   491,   206   S.W.2d   442   (1947).      What   constitutes \nreasonable and necessary medical treatment is a question of fact for the Commission.  \nWhite  Consolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); \nWackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  In order to prove \nhis entitlement to the requested treatment, Claimant must also prove that it is causally \nrelated to his compensable injuries of July 6, 2007.  See Pulaski Cty. Spec. Sch. Dist. v. \nTenner, 2013 Ark. App. 569, 2013 Ark. App. LEXIS 601. \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional  treatment,  even  after  the  healing  period  has  ended,  if  said  treatment  is \ngeared toward management of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. \nApp.  230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200, \n649 S.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing \nthe  nature  and  extent  of  the  compensable  injury; reducing  or  alleviating  symptoms \nresulting from the compensable injury; maintaining the level of healing achieved; or \npreventing  further  deterioration  of  the  damage  produced  by  the  compensable  injury.  \nJordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra.  A \nclaimant is not required to furnish objective medical evidence of his continued need for \n\nMUNNS – H307207 \n \n15 \n \nmedical  treatment.   Castleberry  v.  Elite  Lamp  Co.,  69  Ark.  App.  359,  13  S.W.3d  211 \n(2000). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Claimant’s  testimony  is  that  the  treatment  he  is  seeking—and   which   he \nunderstands that Dr. Shah is recommending—consists of a spinal cord stimulator.  The \ntreatment  of  his  stipulated  compensable  lumbar  spine  injury  that  he  has  undergone \nincludes the surgery that Dr. Seale performed on September 22, 2023.  This operation \nconsisted of, inter alia, a fusion and laminotomy at L5-S1.  I credit Claimant’s testimony \nthat the surgery only partially alleviated his symptoms, and that the pain in his back and \ninto his lower extremity is extremely severe. \n Dr.  Shah,  who  is  now  Claimant’s  authorized  treating  physician,  has \nrecommended that he undergo a spinal cord stimulator trial, with a neuropsychological \nscreening and a thoracic MRI as precursors thereto.  She has opined that the purpose \nof the course of treatment is “neuromodulation” of the pain that he is suffering as a \nresult of “post laminectomy and chronic pain syndrome.”  As discussed above, Claimant \n\nMUNNS – H307207 \n \n16 \n \ndid  not  undergo  a  laminectomy,  which  is  the  “excision  of  the  posterior  arch  of  a \nvertebra.”  DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 996 (30\nth\n ed. 2003).  Instead, \nhis procedure was a laminotomy, which involves removal of only a portion of the lamina, \nor  arch.   Id.    This  is  a  difference  only  as  to  degree,  and  thus  is  not  substantive;  Shah \nhas rendered the opinion that Claimant is suffering from pain not only related to his work \nrelated injury, but as a consequence of the treatment thereof; and she is recommending \nthe stimulator trial and related treatment to address it.  The Commission is authorized to \naccept or reject a medical opinion and is authorized to determine its medical soundness \nand probative value.  Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 \n(2002); Green  Bay  Packing  v.  Bartlett,  67  Ark.  App.  332,  999  S.W.2d  692  (1999).  \nBased on the foregoing, I credit her opinion. \n Claimant  has also  proven  under Tenner, supra,  that  this  treatment  is  causally \nrelated  to  his  stipulated  compensable  injury.    Therefore,  he  has  met his  burden  of \nestablishing that it is reasonable and necessary. \nB. Temporary Total Disability \n As  part  of  this  claim,  Claimant  has  asked  that  he  be  awarded  additional \ntemporary total disability benefits from the date last paid to a date yet to be determined.  \nRespondents,  on  the  other  hand,  have  asserted  that  Claimant  is  not  entitled  to  any \nmore benefits of this type. \n The compensable injury to Claimant’s lumbar spine is unscheduled.  See Ark. \nCode  Ann.  §  11-9-521  (Repl.  2012).    An  employee  who  suffers  a  compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \n\nMUNNS – H307207 \n \n17 \n \nwithin the healing period in which he has suffered a total incapacity to earn wages.  Ark. \nState Hwy. & Transp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  Also, \na claimant must demonstrate that the disability lasted more than seven days.  Id. § 11-\n9-501(a)(1). \n According  to  Claimant,  his  entire  career  has  been  spent  as  a  mechanic.    He \nnever went to college.  Claimant has never had a desk job.  To the contrary, all of the \npositions that he has held have required that he be able to lift at least 50 pounds.  His \nposition as a “heavy duty mechanic” with Respondent City of North Little Rock was no \nexception.    In  fact,  in  some  instances  he  has  had  to  lift  more  than  100  pounds  while \nworking there.  His job was physically demanding in other ways.  He had to stoop and \ncrouch at times. \n Claimant’s testimony was that he was off work for four weeks after his fusion \nprocedure.  Thereafter, he returned to work at modified duty.  He continued to treat with \nDr. Seale while he was seeing Dr. Gordon. \n The February 7, 2024, report of Claimant’s return visit to Gordon reflects that the \ndoctor  released  him  to  return  to  work  on  February  8,  2024,  with  restrictions  of  no \nbending or lifting, and no lifting of more than 20 pounds.  On April 24, 2024, Seale found \nthat he was at maximum medical improvement and assigned him an impairment rating \nof twelve percent (12%) to the body as a whole.  Respondents accepted this rating and \nhave been paying Claimant permanent partial disability benefits pursuant thereto. \n On May 2, 2024, Claimant underwent a functional capacity evaluation.  He gave \na reliable effort, with 51/51 consistency measures within expected limits.  Claimant was \n\nMUNNS – H307207 \n \n18 \n \nfound  to  have  demonstrated  the  ability  to  work  in  the  Medium  classification,  with \noccasional  bi-manual  lifting/carrying  of  up  to  50  pounds,  lifting/carrying  of  up  to  25 \npounds  on  a  frequent  basis,  and  an  occasional  lifting/carrying  of  up  to  25  pounds  by \neach upper extremity separately.  Moreover, he was assessed as being able to engage \nin  the  following  activities  constantly:    walking,  reaching  (immediate  and  with  a  five-\npound  weight),  handling,  fingering,  standing  and  sitting.    Claimant  was  also  found  to \nkneel  frequently,  and  to  perform  the  following  occasionally:    stooping,  crouching, \nclimbing stairs, pushing/pulling cart, and reaching overhead.  Based on these findings, \nRespondents determined that Claimant could no longer do his job for the City of North \nLittle  Rock  and  terminated  him.   He  has  not  filed  for  unemployment  benefits.    Asked \nwhy, he replied:  “I ain’t going to lie to nobody, tell them that I can work when I can’t.”  \nNotwithstanding  this,  it  was  also  his  testimony  that  he  has  not  applied  for  Social \nSecurity disability benefits.  He explained:  “I don’t believe in getting disability.  I want to \nhave a job.  I want to work.  I’ve worked all my life.” \n The following exchange took place: \nQ. Can you work currently? \n \nA. No, sir. \n \nQ. Why not? \n \nA. I can’t do the physical part of it.  My job demands that you pick \nthings up, that you bend over, you lay down, you crawl under stuff, \nyou crawl in stuff, so it’s—it’s no longer—I’m no longer physically \nable to do it. \n \nQ. Okay.    Is  your  physical  condition  now  better,  the  same,  or  worse \nthan when they terminated you? \n\nMUNNS – H307207 \n \n19 \n \n \nA. Worse. \n \nQ. And how is it worse, Randy? \n \nA. I’m getting fat ‘cause I can’t work.  I don’t have—I’m not doing the \nthings that I’m supposed to be doing . . . as far as physically taking \ncare of myself because I can’t—my back hurts, my leg hurts, so I’m \nnot able to do it. \n \n The   evidence   shows   that   Claimant   last  received  temporary   total  disability \nbenefits  for  the  period  ending  February  6,  2024.    Thus,  he  is  asking  to  be  awarded \nadditional  benefits  of  this  type  on  and  after  February  7,  2024.  But  as  of  February  8, \n2024,  he  was placed back  on  modified  duty by  Dr.  Gordon—which are  the same \nrestrictions  that  Seale  had  assigned  him (and  Respondents  had  accommodated)—on \nOctober 25, 2023. \n Respondents  terminated  Claimant  because  they  could  not  meet  his  permanent \nrestrictions  as  documented  in  the  functional  capacity  evaluation.    But  his  termination \ncame after Dr. Seale had released him for being at maximum medical improvement on \nApril 24, 2024, when the doctor also assigned him the permanent impairment rating of \ntwelve  percent  (12%)  to  the  body  as  a  whole.  I  credit  these  findings  under Poulan, \nsupra. \n The healing period ends when the underlying condition causing the disability has \nbecome  stable  and  nothing  further  in  the  way  of  treatment  will  improve  that  condition.  \nMad  Butcher,  Inc.  v.  Parker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).    Claimant  has \nargued that  Claimant did not  reach the  end of his healing period  on  April  24, 2024,  by \nsoliciting  from  Dr.  Shah an answer of “yes” to the question of whether the trial  spinal \n\nMUNNS – H307207 \n \n20 \n \ncord  stimulator—which  I  awarded  above—is “designed to improve [Claimant’s] current \nphysical condition.”  But I cannot and do not credit this.  The evidence is clear that the \nstimulator’s purpose is purely palliative in nature.  As Carlton explained in her letter, \nquoted above:  “it is the provider’s medical opinion that a neuropsychological screening, \nthoracic MRI, and spinal cord stimulator trial is medically necessary as it could lead to a \nsignificant  improvement  in  [Claimant’s]  functionality  and  quality  of  life.”    Thus,  this \ntreatment  strictly geared  to  management  of  his  condition  after  the  end  of  the  healing \nperiod,  per Patchell, supra.  The  preponderance  of  the  evidence  establishes  that  he \nreached the end of his healing period on April 24, 2024. \n That  said,  based  on  the  foregoing, I  find  that Claimant  has met  his  burden  of \nproof  concerning his  entitlement  to  additional  temporary  total  disability  benefits  for  an \nadditional one-day period:  February 7, 2024. \nC. Attorneys’ Fee \n Claimant has asserted that he is entitled to a controverted attorney’s fee in this \nmatter.  One of the purposes of the attorney's fee statute is to put the economic burden \nof litigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. \n193, 745 S.W.2d 647 (1998).  In this case, the fee would be twenty-five percent (25%) \nof any indemnity benefits awarded herein, one-half of which would be paid by Claimant \nand one-half to be paid by Respondents in accordance with See Ark. Code Ann. § 11-9-\n715  (Repl.  2012).   See Death  &  Permanent  Total  Disability  Trust  Fund  v.  Brewer,  76 \nArk. App. 348, 65 S.W.3d 463 (2002). \n\nMUNNS – H307207 \n \n21 \n \n The  evidence  before  me  clearly  shows  that  Respondents have  controverted \nClaimant’s entitlement to additional indemnity benefits—including  the  temporary  total \ndisability  benefit  awarded  above.    Thus,  the  evidence  preponderates  that  his counsel, \nthe Hon. Neal Hart, is entitled to the fee as set out above. \nCONCLUSION AND AWARD \n Respondents are directed to furnish/pay benefits in accordance with the findings \nof fact and conclusions of law set forth above.  All accrued sums shall be paid in a lump \nsum  without  discount,  and  this  award  shall  earn  interest  at  the  legal  rate  until  paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a twenty-five percent  (25%)  attorney’s  fee \nawarded herein, one-half of which is to be paid by Claimant and one-half to be paid by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":37385,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H307207 RANDY D. MUNNS, EMPLOYEE CLAIMANT CITY OF NORTH LITTLE ROCK, SELF-INSURED EMPLOYER RESPONDENT ARK. MUN. LEAGUE, THIRD-PARTY ADM’R RESPONDENT OPINION FILED MARCH 14, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 23, 20...","outcome":"granted","outcomeKeywords":["granted:6"],"injuryKeywords":["lumbar","back","thoracic","knee"],"fetchedAt":"2026-05-19T22:42:36.999Z"},{"id":"alj-H405323-2025-03-13","awccNumber":"H405323","decisionDate":"2025-03-13","decisionYear":2025,"opinionType":"alj","claimantName":"Michael Risner","employerName":"Geels Paint & Wallcovering Inc","title":"RISNER VS. GEELS PAINT & WALLCOVERING INC. AWCC# H405323 March 13, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RISNER_MICHAEL_H405323_20250313.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RISNER_MICHAEL_H405323_20250313.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H405323 \nMICHAEL J. RISNER, EMPLOYEE CLAIMANT \n \nGEELS PAINT & WALLCOVERING INC., EMPLOYER RESPONDENT \n \nSUMMIT CONSULTING LLC, CARRIER/TPA RESPONDENT \n \n \n OPINION FILED MARCH 13, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JASON M. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January 2, 2025, the above captioned claim came on for a hearing at Springdale, Arkansas. \nA pre-hearing conference was conducted on November 21, 2024, and a pre-hearing order was filed \non that same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n            2.   The employee/employer/carrier relationship existed on August 4, 2023. \n3.   The respondents have controverted the claim in its entirety.  \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n\nRisner-H405323 \n2 \n \n           1.   Compensation rate.\n1\n  \n           2.   If compensable, whether claimant is entitled to medical benefits. \n           3.   Whether claimant sustained a compensable injury regarding his right upper extremity on  \n                August 4, 2023.   \n All other issues are reserved by the parties. \n The claimant contends that “He sustained a compensable upper extremity injury on August 4, \n2023, while  working  for  Geels  Painting  in  Bentonville,  Arkansas. The  claimant  contends  that  he  is \nowed medical benefits. Due to the controversion of entitled benefits, the respondents are obligated \nto  pay  one-half of the claimant’s attorney’s fees. Claimant reserves the right to raise additional \ncontentions at the hearing of this matter.” \n In  an  amended  prehearing information  filed December  26,  2024,  the  respondents  contend \nthat “The claimant did not suffer a compensable injury to his elbow. He missed no time. No attorney’s \nfee can be awarded.” \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1. The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nNovember 21, 2024, and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n \n1\n Although listed as an issue, there was no claim for indemnity benefits before me, and therefore the parties did not \npresent any evidence on this issue, which is now reserved. \n\nRisner-H405323 \n3 \n \n \n2.  Claimant has met his burden of proof by a preponderance of evidence that he suffered a \ncompensable injury to his right upper extremity on August 4, 2023.  \n3.    Claimant has met his burden of proof by a preponderance of evidence that he is entitled \nto  medical  treatment  from  Dr. Chad  Songy for the  compensable  injury  to his right  upper \nextremity injury. \n FACTUAL BACKGROUND \n In reviewing claimant’s exhibits, I noticed pages 16 and 23 had portions missing at the bottom \nof  each  page. The complete progress  notes  from August  15, 2024, and  November  7,  2024, were \nobtained, and  by  agreement  of  the  parties,  are  blue  backed  to  the  record,  along  with  the  email \ncorrespondence we had regarding those records.  \nHEARING TESTIMONY \n \n Claimant testified that he had worked for respondent Geels Paint for ten years, sometimes as \nthe foreman of a job, and other times as a painter. He testified that his job involved lifting five-gallon \npaint  buckets  which  were  approximately  sixty  pounds,  along  with  ladders,  tools, and  the  like. On \nAugust 4, 2023, claimant testified that the hydraulics failed on the boom lift he was using and slammed \ndown,  causing part  of  the  boom  lift  to  hit his  forearm.  After  the  shock of  the  incident was  over, \nclaimant noticed his forearm was hurting and saw a golf ball sized knot rising on his arm.  A coworker \ntook pictures of it for him, which were immediately sent to Logan Geels, his employer. Claimant told \nMr. Geels that he was on the way to the doctor and also notified his direct supervisor on this job, \nSteve Cortright. Neither Mr. Geels nor Mr. Cortwright instructed claimant to go to a doctor, so he \nwent to Washington Regional Urgent Care in Bentonville. He said at the time that he had decided to \ngo to the doctor, his arm felt like it was on fire and had a huge lump on it. Besides taking x-rays, the \nmedical  provider did  little  else except  advise  him  to  take  Tylenol  and  follow  up  with  Ozark \n\nRisner-H405323 \n4 \n \n \nOrthopedics or his primary care physician.  \n Claimant testified that Logan Geels asked him to put it under his private insurance and that \nthe  company  would  cover  all  co-pays. Claimant  did  not  fill  out a workers’ compensation incident \nreport and did not ask respondent Geels Painting to open a workers’ compensation case on his behalf. \nIt was his understanding that a workers’ compensation claim causes the insurance rating to go down \nwhich prevented the company from getting large jobs with the University of Arkansas, Cargill, and \nother  such  companies. He believed  that by this  injury  being  turned  into  his  private  insurance,  the \ncompany could continue to get jobs.  \n Claimant went to Ozark Orthopedics on August 11, 2023, but was not offered any form of \ntreatment. His  arm  remained  sore  and  continued  to  hurt  between  August  11, 2023, and  March  22, \n2024. He did not believe that it had gotten any better, and had started to go numb, so in March 2024, \nhe went to Urgent Care. In June 2024, claimant was seeing a doctor for some back issues which are \nunrelated to this injury and mentioned to his doctor that his elbow was still hurting and going numb. \nHe  was  referred  to  Dr. Chad Songy, who  saw claimant on  August  15,  2024. Following that  visit, \nclaimant asked that his employer pay for the surgery, at which time the employer offered to pay the \nco-pay  and  pay  him  for  being  off  work  for  two  months. Claimant  believes  that  the  surgery  would \nrequire him to be off work for four months and sought legal representation. Claimant has not yet had \nthe recommended surgery because he could not afford to be off work for four months without being \ncovered. Claimant denied he had any issues with his arm before August 4, 2023.  \n On cross-examination, claimant said that he struck his forearm on August 4, 2023, on what \nwould be the right side of his arm if his palm was facing downward. He agreed that he did not actually \nstrike his elbow on August 4, 2023. His initial report denied elbow pain, because at the time his pain \nwas in his forearm. When asked if the surgery he was requesting was regarding his elbow, claimant \n\nRisner-H405323 \n5 \n \n \nsaid “No, it is the ligaments in the forearm that connects to the elbow. It tore from the elbow, but it \ngoes all the way to the wrist.”  He agreed that the original pain on August 4, 2023, was where the strike \nhad happened but now has pain in the elbow itself from continuing working. The soreness persisted, \nand when he began experiencing numbness, he grew concerned. \n Claimant agreed that he continued working full time as a painter between August 2023 and \nMarch 2024, using rollers, brushes, sprayers, pole extensions, and the like. He said his pain increased \nbased on the constant movement of his arms while he was painting, rolling, and otherwise performing \nhis job duties.  \n Claimant denied that he had had an injury or any sort of trauma to his arm or elbow prior to \nthis incident. He was unaware that he had a bone spur in his elbow, which he understood to be calcium \ndeposits from injuries in the area. He did not deny that there was a bone spur there but agreed that \nthe bone spur was not caused by the incident on August 4, 2023. \n The following exchange took place between the respondent’s attorney and claimant: \nQuestion. (By Mr. Ryburn) Would you agree with me they could not say, at least \nthis radiologist who read the x-ray could not say that this – it’s hard to read, \nactually,  but  the  spur,  it  says  on  certain acuity. Would  you  agree  that  they \ncouldn’t say that this was caused by the accident? \nAnswer. (By claimant) The bone spur was not caused by it, but that is where it \nhad cracked. It was a bone spur there and at the time of impact, obviously there \nmust have been impact on the elbow that cracked the spur. \n \nQ.  Now you say that earlier you didn’t hit your elbow? \nA.  I hit my arm. The bar is right here (indicating), so it may have hit the elbow, \nor it may not have. \n \nQ.  You don’t know if it hit your elbow? \nA. I don’t know at the time. I  felt  the  pain  here  (indicating). And like  I  said \nwhen it hit, I didn’t realize what had happened. \n \nThe Court: When you pointed, you said that you felt the pain here. What were \nyour referring to? \nThe Witness:  My forearm. \nThe Court:  Okay. Thank you. \n\nRisner-H405323 \n6 \n \n \n \n Claimant said that between the time of the injury and March 2024, the pain was in his forearm \nand elbow from repeated working. Claimant conceded he did not know if the torn ligament existed \nfollowing  the  injury in  August  2023. He stated  that he  had  no  problem  before  he  was  injured,  but \nwithin seven months of the incident, the pain increased to where his arm was going numb. Claimant \ntestified that he was using his right arm for rolling and brushing but was doing heavy lifting with his \nleft arm.  \n Claimant was asked if he had been tested for marijuana on August 4, 2023, if he would have \ntested positive and he agreed that he would have done so, because he has a medical card. He believed \nthat a urine test would have been positive, but a mouth swab would not. \n Claimant stated that he was seeing a pain management doctor for issues with his back and did \nnot  know  why  those  records  were  not  provided  to  the  respondent  during  discovery. As  claimant \nstated,  it  was  that  physician  that  referred  him  to  Dr.  Songy. Claimant  also  did  not  know  why  the \nphysical therapy records were not provided in discovery. Claimant denied that he knew anything had \nhappened other than repetitive use of his elbow between August 4, 2023, and March 2024. He did not \nknow why the x-ray in August 2023 did not show the enthesophyte that was apparent in the MRI. \nClaimant was asked about Dr. Songy’s records, and  the  following  exchange  took  place  between \nrespondent’s counsel and claimant: \nQuestion. (By Mr. Ryburn) He says “He had an injury at work on, August 2023 \nwhenever he had a boom lift accident and injured his right elbow. He has pain \nlatterly and posterior on the elbow. He has pain with direct impact on the back \nof the elbow.” Would you not agree with me that describes more of an on-\ngoing current situation? \nAnswer. (By claimant) The reason he would be saying elbow, I would assume, \nwould be because that is where the ligaments are attached. \n \nQ.  My question really is about the direct impact. He says, “He has pain with \na direct impact to the back of the elbow.” \n\nRisner-H405323 \n7 \n \n \nA. Then he misunderstood. The impact was on the forearm. \n \nQ.  So, you don’t think he is implying you had and reported some direct impact \non the back on the elbow? \nA.  Correct. \n \n  Claimant was clear that he did not have impact to the back of his elbow after August \n2023, and did not know why the doctor said what he did. Claimant told the doctor where the pain \nwas,  which  went  from  his  elbow  to  his  wrist  and  there  was  a  sharp  pain  in  the  elbow  where  the \nligaments are attached. Claimant was referred to Rise Therapy which he charged to his insurance and \nrespondent  Geels  paid  the  co-pays. He  stated  that  he  agreed  that  he did  not have  any  swelling,  or \ndeformity or redness in his right elbow but was suffering from numbness and tingling in the fourth \nand fifth finger, along with pain upon palpation to the medial aspect of the right elbow over the radial. \nHe said this began in March 2024, about a week ago before he went to therapy. He did not attribute \nany incident or activities specifically that started the numbness or tingling other than working. He did \nstate  that  he  had  pain  in  his  elbow  from August 2023  and  then  the  numbness  started. Claimant  is \nrequesting a specific surgery to repair the ligament that was torn which was causing pain in his whole \narm.  \n The following exchange took place between respondent’s attorney and claimant: \nQuestion. (By Mr. Ryburn) Okay, but we don’t know that that ligament was \ntorn or August 2023; correct? \nAnswer. (By claimant) It was probably just damaged, but continuing working \ncaused more damage.  \n \nQ.  Okay. It was probably damaged, so you are essentially speculating, \nA. I didn’t have an MRI in August. The only way they can tell if a ligament or \nmuscle was damaged was by the MRI, and not by x-rays. \n \nQ.  Okay. In  addition  to  that, this  pain  changed  significantly  seven  months \nlater; correct? \nA.  From working, yes. \n \n Claimant  said  he  did  attribute  the  increase  in  pain  to  constant  movement  from  rolling, \n\nRisner-H405323 \n8 \n \n \nbrushing, reaching above his head, and climbing ladders, but the numbness started in March 2024. He \nsaid he was starting to get more of a burning feeling in the forearm and then it went to numbness and \na sharp pain in the elbow and forearm. There had been an increase and spread of the pain in February \nand March 2024. Claimant testified that he had hobbies that he engaged in before the injury, such as \nforaging and building motorcycles, but he had not done such since before the injury. \n On redirect examination, claimant stated that he was in his tenth year working for respondent \nGeels Painting and had continually done repetitive work during that time. He denied any pain in his \nupper extremities before August 4, 2023. After the day of the incident, claimant had pain in his forearm \nfor the first few weeks and some soreness of the elbow which then became numbness around the end \nof February, or the beginning of March 2024. Claimant stated that his symptoms changed over time \ndepending on how much work he had been doing. There were days when he got home and could not \nmove his arm at all, while other days he could use his left arm a lot more during work, and the pain in \nthe right arm was not as bad that night. Claimant said the surgery that was proposed was to reattach \nthe ligament in his right arm that was identified by the MRI.  \n On recross-examination, claimant admitted that the history that the doctors relied on came \nfrom him. \n The following exchange took place between claimant and respondent’s attorney: \nQuestion. (By Mr. Ryburn) Is it fair to say your elbow pain in your forearm \nprogressed due to work activities subsequent to August 2023? \nAnswer. (By claimant) Are you asking did it get worse because of working? \n \nQ.  Well, when you said, what are you referring to? \nA.  The pain in my arm. \n \nQ.  When you are saying your arm, what part of your arm are you referring to? \nA.  The forearm and elbow is where the ligament attaches. \n \nQ.  Okay. I understand where the ligament attaches. As far as what you injured \ninitially was your forearm; right? \n\nRisner-H405323 \n9 \n \n \nA.  Correct. \n \nQ.  And the pain – \nA.  Where the ligament runs and would possibly cause the tear. \n \nQ.   Possibly? \nA.  Because the ligament goes from the elbow to the – everyone is focusing on \nthe elbow. The elbow is where the ligament attaches. It happened here on the \nforearm where it could have pulled on that ligament to cause the damage. \n \nQ.  But you admit you are necessarily speculating? \nA. Yes, I am not a doctor. I am a painter. \n \nQ.  Okay? \nA.  All I know is before the injury, it did not hurt. After the injury, it hurt and \nprogressively got worse. \nQ.    Okay. But  you  would  agree  with  me  you  could  have  an  injury  after  an \ninjury; correct? \nA.  You could. I didn’t, but you could get hurt again, yes.  \n \n Claimant  then  confirmed  that  to  this  point,  he  had  used  his  self-insurance  to  pay  for  his \ntreatment and respondent Geels covered all the co-pays. \n After the parties rested, the Court had this exchange with claimant: \nThe Court: I am confused. You’ve got health insurance?  \nThe Witness: Yes. \n \nThe Court: And you have been running this on health insurance? \nThe Witness: Yes sir. \n \nThe Court: Why was there a gap in treatment from August 11, 2023, through \nMarch 2024? \nThe Witness: Over that time, I was just sore. I figured it would go away over \ntime, so I continued working. \n \nThe  Court:  Okay. And  then  there  was  the  gap  from  when  you  saw  Nurse \nDallas until you saw Dr. Songy. I also am not asking hearsay, but I am just \nwanting to know, was there a problem getting in to see Dr. Songy? \nThe Witness: Michelle Dallas did not refer me to Dr. Songy. When she had \nlooked  at  it,  she  said  that  she  thought  it  was  tennis  elbow. In  June  when  I \nwent to my pain management specialist, that’s when I mentioned it to him. I \nsaid “Hey this doesn’t seem right. This is still going on since August.” \n \nThe  Court: This is going to sound like it is an accusation and it isn’t. I am \n\nRisner-H405323 \n10 \n \n \nactually trying to find out why. You didn’t have to go through the workers’ \ncompensation  carrier  to  see  a  doctor  because  they  denied  the  claim. \nSometimes if someone has a comp. claim, they have to wait for the adjuster \nto make an appointment. You didn’t have that limitation, so I am trying to \nfind out – again, we don’t have any records from the spine doctor from June \nadmitted here, but you are telling me that you saw him in June? \nThe Witness:  Correct. \n \nThe Court:  And that has nothing to do with your work at all? \nThe Witness: Correct. I was there for another reason, and I brought it up to \nhim. \n \nThe Court:  Okay, then he got you in to see Dr. Songy? \nThe Witness:  Once he saw the MRI he said, “you need to go see a surgeon.” \n \n After  the  question  from  the court,  claimant’s  counsel  asked  questions  for  clarification \npurposes. Claimant believed that the injury was going to heal on his own and he just gave it time from \nAugust 2023 to March 2024. He did a course of physical therapy which did not relieve the pain and \nnumbness in his arm. \nREVIEW OF MEDICAL RECORDS \n The claimant’s testimony explained most of what was in the medical records which are relevant \nto  this  claim. He  first  went  to  Washington  Regional  Urgent  Care,  where Nurse  Practitioner  Sean \nKremers saw claimant, and his arm was x-rayed. Nurse Kremers recorded the following diagnosis: \n“Contusion  of  unspecified  forearm,  initial  encounter. Injury,   acute, \nuncomplicated. Unspecified  fracture  of  lower  end  of  unspecified  humerus, \ninitial encounter for closed fracture.” \n \n \n In the assessment and plan, regarding the contusion of claimant’s forearm, he was advised to \nrest, ice and elevate the affected area and keep an ace wrap on for compression. Claimant was advised \nthat if his condition worsens, he needed another evaluation at an emergency room or a primary medical \nclinic. Regarding the unspecified fracture of the lower end of the unspecified humerus, it was suggested \nthat  claimant  sees  a  specialist  for  further  evaluation  and  a  case  manager  was  to  contact  claimant \n\nRisner-H405323 \n11 \n \n \nregarding his appointment pertaining to that referral.  \n On August 11, 2023, claimant saw Dr. Christopher Henley following the referral from Nurse \nKremers. The  report  from  this  visit and  in  the  few  entries  from  Dr.  Henley,  there  appears  to  be a \ncontradiction. On the history and physical information, the chief complaint was recorded as: \n“Right forearm pain. He fell at work seven days ago, hitting the right elbow. \nHe  denies  elbow  pain. All  of  his  pain  and  swelling  is  along  the volar ulnar \nproximal. He has been working since the incident.” \n \n Despite Dr. Henley recording that claimant denied elbow pain, he stated that the part of the \nbody being treated was the elbow. \n On  March  22,  2024,  claimant  went  to  Humana  Family  medicine  and  saw  ARPN  Michelle \nDallas. During her examination, Nurse Dallas recorded the following as it relates to claimant’s right \nupper extremity: \n“Numbness and tingling in the fourth and fifth finger, pain with palpation at \nremedial  aspect  of  right  elbow  over  radial  nerve  location,  no  swelling, \ndeformity, or redness of right elbow.”  \n \n The remaining records were from Dr. Chad Songy at UAMS. Dr. Songy first saw claimant on \nAugust 15, 2024. Dr. Songy reviewed x-rays and an MRI finding: \n“Patient’s elbow has a well aligned radio capitellar and ulna humeral joint on \nx-ray  with  no  advanced  arthritis. He  does  have  enthesophyte  present,  does \nlook like there is a fracture in the enthesophyte. On the MRI, patient does have \nsignificant   tearing   to   the   common   extensor   mechanism   of   the   lateral \nepicondyle with extension into the lateral collateral ligament.” \n \n \nFor  his  assessment on August  15, 2024,  Dr.  Songy  found  the  claimant  had 1.  Right lateral \nepicondylitis, 2. Complete  tear  of  the  lateral  collateral  ligament  of  the  elbow  and 3. Elbow \nenthesopathy. Dr. Songy did not believe that the enthesophyte needed surgery, but thought the most \nreliable  option  for the  other  two  conditions would  be  a  debridement  of  the  common  extensor \n\nRisner-H405323 \n12 \n \n \nmechanism  with  repair  down  to  the bone  and  a lateral collateral repair.” Claimant  wanted  to think \nabout whether he wanted to have surgery to repair this condition.  \nClaimant  returned  to  Dr.  Songy  on November  7,  2024. Between  these  visits,  claimant had \nbeen seen by his pain management physician and had done a course of physical therapy; he returned \nthis day to discuss surgery. In his notes from that examination, Dr. Songy recorded: “On the MRI, \npatient does have significant tearing to the common extensor mechanism off the lateral epicondyle \nwith extension into the lateral collateral ligament.”  \n  \nADJUDICATION \n \nRespondents  denied  that  claimant  suffered  a  compensable  injury to  his  elbow. Therefore, \nbefore focusing on the elbow, it is claimant’s burden of proof to first show he suffered a compensable \ninjury of  any type, which  requires  proof (1)  that  the  injury  arose  out  of  and  in  the  course  of  the \nemployment,  (2)  that  the injury  caused  internal  or external  harm  to  the  body  that  required  medical \nservices, (3) that there is medical evidence supported by objective findings establishing the injury, and \n(4)  that  the  injury  was  caused  by  a  specific  incident  and  identifiable  by  the  time  and  place  of  the \noccurrence, Ark. Code Ann. § 11-9-102(4). Claimant bears the burden of proving a compensable injury \nby a preponderance of the credible evidence, Ark. Code Ann. § 11-9-102(4)(E)(i). Compensation must \nbe  denied  if  the  claimant  fails  to  prove  any  one  of  these  requirements  by  a  preponderance  of  the \nevidence. Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). \nThe evidence in this case supports that claimant suffered a compensable injury. Claimant was \nengaged  in  work  activity  when  the  boom  failed and  injured  his  forearm on  August 4,  2023, thus \nsatisfying the first and fourth element. The medical record from that day notes swelling and bruising \nof his right forearm (Cl. ME. 1), which were objective findings that showed harm to his body. Claimant \nwas credible that all of this was known by the respondent employer on the day of the accident, yet the \n\nRisner-H405323 \n13 \n \n \nemployer did not provide medical care to him as required by Ark. Code Ann. § 11-9-508, nor did it \nfile the report of injury required by Ark. Code Ann. § 11-9-529. Instead, claimant was instructed to \ntreat this as a non-work-related injury and use his private insurance coverage.  \n Before leaving the general question as to compensability, it is necessary to address a defense \nraised  by  respondent  at  the  close  of  the  hearing.  Respondent contended claimant  did  not  suffer  a \ncompensable injury per Ark. Code. Ann §11-9-102(4)(B)(iv) because he admitted during his testimony \nthat  he  would  have  had  a  positive  urine  test  for  marijuana  on  August  4,  2023.  That  section  of  the \nstatute provides:  \n(B) \"Compensable injury\" does not include: \n.... \n( iv)( a) Injury where the accident was substantially occasioned by the use of \nalcohol, illegal drugs, or prescription drugs used in contravention of physician's \norders. \n(  b)  The  presence  of  alcohol,  illegal  drugs,  or  prescription  drugs  used  in \ncontravention of a physician's orders shall create a rebuttable presumption that \nthe injury or accident was substantially occasioned by the use of alcohol, illegal \ndrugs, or prescription drugs used in contravention of physician's orders. \n( c) Every employee is deemed by his or her performance of services to have \nimpliedly consented to reasonable and responsible testing by properly trained \nmedical  or  law  enforcement  personnel  for  the  presence  of  any  of  the \naforementioned substances in the employee's body. \n(d) An employee shall not be entitled to compensation unless it is proved by a \npreponderance of the evidence that the alcohol, illegal drugs, or prescription \ndrugs utilized in contravention of the physician's orders did not substantially \noccasion the injury or accident.  \n \nBecause the respondent employer mishandled this case, there was no drug screen performed \nat the urgent care facility claimant visited on the day of the injury. Ordinarily, the positive test would \ncreate the rebuttable presumption set forth above. Despite having no results of a drug screening, I \nbelieve claimant's testimony under oath is sufficient to create that presumption. However, without any \nother  proof  to  the  contrary,  I  am  satisfied  that  the  evidence  in  the  case  is  such  that  claimant  has \nrebutted the presumption that his injury was substantially occasioned by the use of marijuana. The \n\nRisner-H405323 \n14 \n \n \nonly  evidence  I  heard  was  that  the  boom  itself  failed,  not  that  it  was  improperly  operated  due  to \nclaimant’s use of marijuana on the day of the accident. There  was  no  testimony  that  claimant was \nunder the influence of a controlled substance while he was on the job. Therefore, claimant’s admitted \nuse of marijuana while off-duty is not a bar to this claim.  \nHaving determined that the injury to claimant’s forearm meets the criteria of a compensable \ninjury and is not barred by his off-duty use of marijuana, the question then becomes if claimant proved \nby  a  preponderance  of  the  evidence  that  the  specific  treatment  he  sought is necessitated by the \ncompensable  injury. Respondents  urged  that  the  proof  was  insufficient  to support the claimant’s \nburden of proof but presented nothing in opposition to the evidence before me. Lateral epicondylitis \n(commonly called tennis elbow) can be caused by both overuse and acute trauma.\n2\n  As I have found \nthere was an acute trauma to the forearm, I would be forced to speculate that he would have developed \nthe same symptoms without that compensable injury to the forearm.  \nClaimant did not specifically assert that the lateral epicondylitis was a natural consequence of \nhis  forearm  injury,  but that is  not  necessary for the  Commission  to  consider if  such  was  the  case, \nConagra Packaged Foods, LLC v. Beauchamp, 2024 Ark. App. 548.\n3\n  If an injury is compensable, every \nnatural consequence of that injury is likewise compensable. Air Compressor Equip. Co. v. Sword, 69 Ark. \nApp. 162, 11 S.W.3d 1 (2000); Hubley v. Best West. Governor's Inn, 52 Ark. App. 226, 916 S.W.2d 143 \n(1996). The test is whether a causal connection between the two (2) episodes exists. Sword, supra; Jeter \n \n2\n See https://my.clevelandclinic.org/health/diseases/7049-tennis-elbow-lateral-epicondylitis,  referring  to  causes  for \ntennis elbow: “Any motion or activity that you frequently repeat can trigger tennis elbow. Extra stress from repetitive \nmovements builds up over time. Eventually, that  added use  and stress on your extensor muscle  tendon causes tiny \ntears (microtraumas). Those microtraumas cause symptoms you can feel and notice. \n \nIt is less common, but a sudden arm or elbow injury can also cause tennis elbow.” (Emphasis added) \n \n \n3\n Claimant did not allege a gradual onset injury as an alternative theory, and I decline to consider that alternative in \nthis opinion, leaving that as a reserved issue.  \n\nRisner-H405323 \n15 \n \n \nv. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998). The existence of a causal connection is a \nquestion of fact for the Commission. Koster v. Custom Pak & Trissel, 2009 Ark. App. 780. It is generally \na  matter  of  inference,  and  possibilities  may  play  a  proper  and  important  role  in  establishing  that \nrelationship. Osmose  Wood  Preserving  v.  Jones,  40  Ark.  App.  190, 843  S.W.2d  875  (1992). A  finding  of \ncausation  need  not  be  expressed  in  terms  of  a  reasonable  medical  certainty  where  supplemental \nevidence supports the causal connection. Koster, supra; Heptinstall v. Asplundh Tree Expert Co., 84 Ark. \nApp. 215, 137 S.W.3d 421 (2003). \nWhile  I recognize  the  evidence  in  this  case could  have  been  more  extensive,  what was \npresented satisfies me that claimant has met his burden of proving a compensable injury for which he \nis entitled to medical treatment as directed by Dr. Songy. The employer’s failure to report this injury \nto the insurance carrier and thus having this managed as a normal compensation claim has created \nproblems for both the carrier and the claimant. Because of his employer’s disregard of the law which \nrequires  injury  claims  to  be  reported  and  medical  care  provided  for  an  injured  worker,  claimant \ncontinued to work with an injured arm until such time as it became too painful for him to ignore. That \nis unfortunate, because there is a recognized course of treatment for tennis elbow that includes many \nnon-surgical  options;\n4\n a  case  manager for  the  carrier could  have  ensured  claimant  received proper \ntreatment for his injury and perhaps avoided the necessity of surgery.   \n \nORDER \n \nClaimant has met his burden of proving by a preponderance of the evidence that he suffered \na compensable injury to his right upper extremity on August 4, 2023.  \n \n4\n See https://www.jsmcentral.org/assets/articles/fulltext_smjo-v2-1043.pdf “In   patients   presenting   Lateral \nEpicondylitis from acute trauma, prompt care has shown to be highly effective in curtailing pain symptoms.” The \narticle lists the various treatment options before surgery should be considered. \n\nRisner-H405323 \n16 \n \n \nClaimant  has  met  his  burden  of  proving  that  he  is entitled  to medical  treatment  as \nrecommended by Dr. Songy for his compensable injury. \nWhile this matter was controverted,  A.C.A § 11-9-715(a)(1)(B)(ii) provides that attorney’s fees \nare awarded \"only on the amount of compensation for indemnity benefits controverted and awarded.\" \nIn this case, there was no claim for indemnity benefits, and therefore no attorney's fee can be awarded \nin this matter at this time. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the sum of $ 568.45. \n IT IS SO ORDERED. \n                                                                                            \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":32493,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H405323 MICHAEL J. RISNER, EMPLOYEE CLAIMANT GEELS PAINT & WALLCOVERING INC., EMPLOYER RESPONDENT SUMMIT CONSULTING LLC, CARRIER/TPA RESPONDENT OPINION FILED MARCH 13, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington Cou...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","wrist","repetitive","fracture"],"fetchedAt":"2026-05-19T22:42:32.735Z"},{"id":"full_commission-H208285-2025-03-12","awccNumber":"H208285","decisionDate":"2025-03-12","decisionYear":2025,"opinionType":"full_commission","claimantName":"Teresa Wright","employerName":"Lowe’s Home Centers, LLC","title":"WRIGHT VS. LOWE’S HOME CENTERS, LLC AWCC# H208285 March 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Wright_Teresa_H208285_20250312.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Wright_Teresa_H208285_20250312.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H208285  \n \nTERESA A. WRIGHT, \nEMPLOYEE \n \nCLAIMANT \nLOWE’S HOME CENTERS, LLC,  \nEMPLOYER \n \nRESPONDENT \nSEDGWICK CLAIMS MANAGEMENT SERVICES \nINC., INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 12, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MARK ALAN PEOPLES, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE RANDY P. MURPHY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:   Reversed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nOctober 2, 2024.  The administrative law judge found that the claimant \nproved a cervical anterior fusion was reasonably necessary.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant did not prove a cervical anterior fusion was reasonably necessary.     \nI.  HISTORY \n The parties stipulated that the employment relationship existed on \nSeptember 20, 2022.  Teresa Wright, now age 58, testified on direct \nexamination: \n\nWRIGHT - H208285  2\n  \n \n \nQ.  You got hurt back in September of 2022.  Tell the judge \nwhat happened. \nA.  I worked for the MST team, and we moved beams and set \nbays in Lowe’s.  We do all the preparation to get it done, so \nwe were moving a beam 15 feet off the floor....So we were \nmoving that beam from one location to another, and we were \nwaiting on a tape measure because we didn’t get that spot \nmarked; and the – while we were standing there holding the \nbeam, the other girl that was on the other end of that beam – \n‘cause it’s like 75 to 100 pounds for one beam, so two people \nhad to do it – she dropped her end of the beam, and I did not \nsee it happening.  And we were on ladders, and the beam \nstarted falling, and it pulled on my arm and almost pulled me \nover the side of the ladder as it was falling and jerked me real \nbad.  And my shoulder was hurting, my back was hurting, my \nneck was hurting, my left shoulder was hurting, all of my arm.   \n \n The parties stipulated that the claimant “sustained compensable \ninjuries to her right shoulder, arm, elbow, neck, and back” on September \n20, 2022. \n According to the record, the claimant received emergency treatment \non September 20, 2022:  “C/O right shoulder pain.  Limited ROM to right \nshoulder.  Pt was at work at Lowe’s.  She and a coworker were on ladders.  \nEach of them were holding an end of a metal beam.  Pt reports her co-\nworker dropped her end of the beam.”   \n An x-ray of the claimant’s cervical spine was taken on September 20, \n2022: \n1. No fractures or subluxations are evident in the cervical \nspine. \n2. Spondylosis at the C4-5 through C6-7 levels. \n3. Mild facet arthropathy is present in the lower cervical \nspine.   \n\nWRIGHT - H208285  3\n  \n \n \n \nA physician diagnosed “Right shoulder strain” and “Elbow sprain, \nright.” \nDr. Michael Hussey performed a right arthroscopic rotator cuff repair \non November 15, 2022.  The post-operative diagnosis included “1.  Rotator \ncuff tear.”  The claimant received a series of physical therapy visits at \nPhysical Therapy Institute beginning January 3, 2023.  Physical therapy \nwas primarily related to the claimant’s right shoulder.   \nAn x-ray of the claimant’s cervical spine was taken on January 16, \n2023 with the following findings: \nCervical alignment and vertebral body height appear normal.  \nThe disc spaces are mildly narrowed see 5-6-7.  The lateral \nmasses are aligned.  No osseous lesion or level suspicious for \nacute fracture.  There is no evidence of prevertebral soft \ntissue swelling.  Loss of lordosis. \nIMPRESSION:  No acute traumatic osseous abnormality.   \n \n An MRI of the claimant’s cervical spine was taken on January 30, \n2023 with the following conclusion:   \n1. Moderate spinal canal stenosis at C5-C6 secondary to a \nbroad-based posterior disc protrusion and ligamentum \nflavum thickening.  There is mass effect on the ventral \ncord without definitive cord signal abnormality.  Moderate \nbilateral neural foramen stenosis is also present at this \nlevel. \n2. Severe left and moderate right neural foramen stenosis at \nC6-C7 secondary.  Mild spinal canal stenosis is also \npresent at this level. \n3. Additional mild multilevel spinal canal and neural foramen \nstenoses as above.   \n \n\nWRIGHT - H208285  4\n  \n \n \nThe record indicates that Dr. Edward Saer examined the claimant on \nor about February 21, 2023: \nMs. Wright is a 56-year-old woman who works at Lowe’s and \ninjured her neck at work on September 20, 2022.  She was on \na ladder with another coworker on another ladder, stacking \nshelving beams.  The other person dropped [hers] and, Ms. \nWright had to actually go down a couple steps on the ladder \nas she tried to hold onto [hers] and it jerked her right shoulder \nand she subsequently was diagnosed with a rotator cuff tear \nand other problems.  She had surgery for that by Dr. Hussey \non November 15, 2022.  She also jerked her neck and says \nshe has diffuse posterior cervical pain.... \nX-rays:  AP lateral cervical films show degenerative disc \nchanges at C6-7, mild disc narrowing at C5-6 and a little bit at \nC4-5. \nMRI of the cervical spine done at RAPA on January 30, 2023 \nwas reviewed.  There is a central disc bulge at C5-6 that \nabuts but does not compress the cord.  There is some \nforaminal narrowing at C6-7 on the left.  Otherwise she has \nmild degenerative changes that are relatively normal for age.   \n \n Dr. Saer assessed “Probable cervical strain/sprain.  I think some \nphysical therapy would be helpful and I will give her a referral for that.  She \nmay continue working with the same restrictions, that Dr. Hussey gave.  I \nwill plan to see her back in several weeks.”   \nA note at Physical Therapy Institute on February 24, 2023 indicated, \n“Pt states her doctor thinks she has whiplash due to her incident at \nwork....Add cervical exercises and manual therapy techniques to reduce \npain in her neck per new script.”   \nThe claimant followed up with Dr. Saer on March 28, 2023:  “She has \nbeen going to physical therapy and went for about 4 weeks.  She thinks it \n\nWRIGHT - H208285  5\n  \n \n \nhelped.  She is still having pain in the back of her neck....I reviewed her \nimaging with her today and we had a long discussion about this.  I \nexplained that the problem is not the bulging disc in her neck.  She has \nlikely had a soft tissue strain or sprain causing her pain.  That will improve \nbut is going to take some time.  I will give her a referral for some more PT \nsince that seems to be helping her.”   \nDr. Hussey performed surgery on May 11, 2023:  “Right elbow \nextensor tendon debridement and repair.”  The pre- and post-operative \ndiagnosis was “Right elbow high-grade partial-thickness extensor tendon \ntear.”        \n The diagnosis at Physical Therapy Institute on July 3, 2023 was \n“Pain in right shoulder” and “Cervicalgia.”      \nAn MRI of the claimant’s cervical spine was taken on September 26, \n2023 with the following impression: \n1. Multilevel degenerative disease. \n2. Severe left foraminal stenosis at C6-7. \n3. Moderate foraminal stenoses on the left at C3-4 and on \nthe right at C6-7. \n4. Mild foraminal stenoses on the right at C3-4 and bilaterally \nat C5-6.  Mild central canal stenoses at C3-4, C4-5, C5-6, \nand C6-7.   \n5. Broad central protrusion type disc herniation at C3-4, with \ncontact of the left ventral cord. \n6. No evidence of cord contusion, epidural hematoma, \ncompression fracture, or ligament disruption.   \n \n\nWRIGHT - H208285  6\n  \n \n \nDr. Saer’s diagnosis on September 26, 2023 was “Radiculopathy, \ncervical region.”  The symptoms were described as “Neck pain that radiates \ninto Rt arm.  1 yr.” \nDr. Saer noted on October 2, 2023, “Ms. Wright was seen on \nSeptember 28, 2023.  She is at MMI from the standpoint of her cervical \nspine and has no permanent restrictions related to her cervical spine.  \nThere is no permanent impairment related to her cervical spine.” \nDr. Hussey reported on December 28, 2023: \n1. Patient may return back to work without restrictions to the \nright upper extremity. \n2. Patient is now at MMI as of date 5/28/2023 with a 2% \nimpairment rating to the right upper extremity, which \ncorresponds to a 1% whole person impairment rating \naccording to the 4\nth\n Edition AMA Guides to the Evaluation \nof Permanent Impairment.  Impairment is due to mild \nrestriction in range of motion of the shoulder joint.   \n3. No further follow-up is necessary.  The statements given \nabove are within a reasonable degree of medical certainty.   \n \nThe claimant began treating with Dr. Reza Shahim on January 4, \n2024: \nPatient was involved in a work-related injury last 2022 \nSeptember resulting in shoulder and arm injury she has had \nright shoulder surgery right elbow surgery continues to have \nradicular pain she also has severe axial neck pain \ninterscapular pain suboccipital headaches is persistent.  She \nhas had physical therapy for many weeks on her cervical \nspine without any improvement. \nSince the extremity symptoms are persistent I will ask \nWorker’s Comp. to consider referring to orthopedics for \nsecond opinion.   \n\nWRIGHT - H208285  7\n  \n \n \nShe does have a cervical disc injury at C5-6 and some \ndegrees of C6-7 I would suggest she goes through series of \ncervical injection in preparation for possible surgical \nintervention if she does not improve she is a smoker and a \ndiabetic.  I would recommend smoke cessation prior to the \nsurgical treatment in the cervical spine.   \n \n Dr. Shahim planned on February 12, 2024, “Patient has a work-\nrelated injury in 2021 has been followed by orthopedics outside clinic she \ncontinues to have radicular symptoms.  I had requested spinal injection \nwhich was not approved previously she says she prefer to have surgery \nsince she has significant spinal stenosis C5-6 and degenerative disc \ndisease at C6-7 I would recommend an anterior fusion at C5-6 and possibly \nat C6-7.  I will reach out to the Worker’s Comp. authorization if that \nprocedure was denied and I will release her from my care until the condition \nis settled through the Worker’s Comp. adjuster’s.”     \nA pre-hearing order was filed on April 10, 2024.  The parties agreed \nto litigate the following issues: \n1. Whether Claimant is entitled to any additional reasonable \nand necessary medical treatment. \n2. Whether Claimant is entitled to temporary partial disability \nbenefits (TPD) due to work hours being substantially \nreduced. \n3. Whether Claimant’s attorney is entitled to controverted \nattorney’s fees.  All other issues are reserved.   \n \nDr. Owen L. Kelly corresponded with the respondents’ attorney on \nMay 13, 2024 and stated in part: \n\nWRIGHT - H208285  8\n  \n \n \nMs. Wright was involved in an accident at work on 9/20/22.  \nShe was holding a heavy beam when a co-worker dropped \none side and it jerked her arm.  She underwent treatment for \nthe right shoulder, right elbow, and cervical spine. \n1.  MAXIMUM MEDICAL IMPROVEMENT: \nPer the medical records, Dr. Hussey has placed Ms. Wright at \nMaximum Medical Improvement and assigned an impairment \nrating of 2% to the right upper extremity and 1% whole \nperson.  Both of these seem consistent/reasonable.  MMI date \nwas placed at 5/8/23 which appears consistent. \n2.  FURTHER/FUTURE TREATMENT: \nFurther treatment for Ms. Wright’s right elbow and right \nshoulder are not necessary or indicated.  Both of these \naccepted injuries have reached maximum medical \nimprovement as documented in the provided records. \n3.  CERVICAL SPINE: \nThe cervical spine MRI findings confirm degenerative findings.  \nMs. Wright may have sustained a sprain/strain, but the \nobjective MRI findings are not related to injury or trauma.  No \nfurther medical treatment or surgery would be recommended \nfor the cervical spine as it relates to incident of 9/20/22. \nAn anterior cervical fusion has been suggested by a \nsubsequent treating physician.  This physician indicated that \ninjury was the reason for the surgery.  This directly contradicts \nthe opinion of the initial treating spine specialist.  The initial \ntreating spine specialist documented clearly and precisely the \nreasoning while surgery would not be related.  This initial \nopinion appears correct, objectively based and is supported \nby the medical records.  The anterior cervical fusion \nprocedure would not be related to the one-time isolated \naccident.   \n4.  RESTRICTIONS/ABILITY TO WORK: \nThe Functional Capacity Evaluation results were reviewed.  \nThe functional pain results were unreliable per the testing \ntherapist.  Dr. Hussey’s letter noted the unreliable results and \nMs. Wright was released for full duty to the right upper \nextremity.  There is no disagreement with Dr. Hussey’s \nrelease for full duty.  Without an accurate and honest \neffort/result, full duty is recommended.   \n \n\nWRIGHT - H208285  9\n  \n \n \n Dr. Shane McAlister corresponded with the respondents’ attorney on \nJune 17, 2024 and stated in part: \nYou have asked me to review medical records and diagnostic \nimaging on Ms. Teresa Wright (dob 08/04/1966) and provide \nyou with a written report of the findings contained therein.... \nThese records report that Ms. Wright was standing on a \nladder on 9-20-2022 holding one end of a steel “beam” while a \nco-worker at her work place was on another ladder holding \nthe other end.  The co-worker dropped their end.  Ms. Wright \nsaid she had both hands holding the piece of shelving, her left \nhand released, and her right hand didn’t, thereby pulling her \nright shoulder down.  She was seen that day at Baptist Health \nNorth Little Rock.... \nIn summary, Ms. Wright was holding a steel shelving beam \nwhile standing on a ladder on 9-20-2022.  Her coworker, who \nwas holding the other end, dropped it.  The beam fell from Ms. \nWright’s left hand while her right hand was still holding it.  She \nstated this pulled her right shoulder down.  She was seen that \nday in the ED with right shoulder pain.  Physical examination \nand diagnostic imaging revealed no objective finding of acute \ntraumatic injury.  She later had right shoulder and right elbow \nsurgery for repair of tendon tears that were confirmed on MRI \nscanning.  She later had neck symptoms that were diagnosed \nas a sprain/strain by a spine specialist, Dr. Saer.  MRI \nscanning revealed age commensurate degenerative changes \nwith no evidence of any bony or soft tissue injury.  \nSprain/strains are diagnosed when the patient reports \nsymptoms, but there is no evidence of any anatomic injury.  \nThey typically resolve in days to weeks.... \nThese records and the diagnostic imaging submitted do not \ndocument any traumatic injury to the cervical spine from the \nincident on 9-20-2022.  There was no axial loading on the \nspine as a mechanism for injury to the discs or vertebral \nbodies, and the MRI scanning is the most sensitive imaging \navailable for evaluation acute injury or soft tissue injury, and \nnone was found.  Any further treatment for the cervical \nsymptoms would be related to the underlying degenerative \nprocess or other etiology. \nThese findings are stated to a reasonable degree of medical \ncertainty.    \n\nWRIGHT - H208285  10\n  \n \n \n \n After a hearing, an administrative law judge filed an opinion on \nOctober 2, 2024.  The administrative law judge found, among other things, \nthat the claimant proved a cervical anterior fusion was reasonably \nnecessary.  The respondents appeal to the Full Commission.     \nII.  ADJUDICATION \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Supp. \n2024).  The employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 70 (1984).   \n An administrative law judge found in the present matter, “3.  The \nClaimant has proven, and I find by the preponderance of the evidence that \nClaimant has proven that a cervical anterior fusion for her C5-C6, not her \nC6-C7, is reasonable and necessary medical treatment for her \n\nWRIGHT - H208285  11\n  \n \n \ncompensable neck injury.”  The Full Commission does not affirm this \nfinding.   \n The parties stipulated that the claimant sustained compensable \ninjuries to her right shoulder, arm, elbow, neck, and back on September 20, \n2022.  The claimant testified that she sustained a compensable injury while \nhelping to stack a shelving beam.  An x-ray of the claimant’s cervical spine \non September 20, 2022 showed mild facet arthropathy, spondylosis, and \n“no fractures or subluxations.”  Dr. Saer subsequently described the \ncompensable injury to the claimant’s neck as a “probable cervical \nstrain/sprain.”  The claimant was provided conservative medical treatment \nin connection with her compensable neck injury.  An x-ray of the claimant’s \ncervical spine on January 16, 2023 showed “No acute traumatic osseous \nabnormality.”  An MRI of the claimant’s cervical spine on January 30, 2023 \nshowed moderate spinal canal stenosis and a “broad-based posterior disc \nprotrusion.”  The claimant was provided physical therapy as a result of her \ncervical strain/sprain.  The claimant reported benefit from physical therapy.   \n Dr. Saer reported on October 2, 2023, “She is at MMI from the \nstandpoint of her cervical spine and has no permanent restrictions related \nto her cervical spine.  There is no permanent impairment related to her \ncervical spine.”  The claimant began treating with Dr. Shahim on January 4, \n2024.  Dr. Shahim recommended “an anterior fusion at C5-6 and possibly at \n\nWRIGHT - H208285  12\n  \n \n \nC6-7.”  However, Dr. Kelly opined on May 13, 2024, “No further medical \ntreatment of surgery would be recommended for the cervical spine as it \nrelates to incident of 9/20/22.”  Likewise, Dr. McAlister examined the \nmedical records and did not opine that surgery was reasonably necessary.  \nDr. McAlister reported on June 17, 2024, “Any further treatment for the \ncervical symptoms would be related to the underlying degenerative process \nor other etiology.  These findings are stated to a reasonable degree of \nmedical certainty.” \n A claimant who has sustained a compensable injury is not required \nto offer objective medical evidence in order to prove she is entitled to \nadditional benefits; however, the claimant bears the burden of proving she \nis entitled to additional medical treatment.  See Ark. Health Ctr. v. Burnett, \n2018 Ark. App. 427, 558 S.W.3d 408.  In the present matter, the Full \nCommission finds that the claimant did not prove she was entitled to \nsurgical treatment recommended by Dr. Shahim.  The evidence \ndemonstrates that the claimant sustained a compensable cervical \nstrain/sprain on September 20, 2022, for which the claimant received \nreasonably necessary medical treatment.  The Full Commission attaches \nsignificant evidentiary weight to Dr. Saer’s opinion that the claimant reached \nmaximum medical improvement no later than October 2, 2023. \n\nWRIGHT - H208285  13\n  \n \n \nWe recognize that a claimant may be entitled to ongoing medical \ntreatment after the healing period has ended, if the medical treatment is \ngeared toward management of the claimant’s injury.  Patchell v. Wal-Mart \nStores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004).  In the present \nmatter, the evidence does not demonstrate that surgery recommended by \nDr. Shahim would be geared toward management of the compensable \ncervical injury.  It is within the Commission’s province to weigh all of the \nmedical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  The Full \nCommission finds in the present matter that the expert opinions of Dr. Saer, \nDr. Kelly, and Dr. McAlister are entitled to significant evidentiary weight and \nare more credible than the opinion of Dr. Shahim.  Neither Dr. Saer, Dr. \nKelly, or Dr. McAlister opined that surgical treatment was reasonably \nnecessary.      \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove a cervical anterior fusion was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Supp. 2024).  \nWe therefore reverse the administrative law judge’s opinion, and this claim \nis respectfully denied and dismissed. \n \n \n\nWRIGHT - H208285  14\n  \n \n \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \nThe ALJ found that the Claimant proved by a preponderance of the \nevidence that she is entitled to reasonable and necessary medical \ntreatment for her compensable neck injury including an additional cervical \nanterior fusion at the C5-C6 level.  After conducting a thorough review of \nthe record, I would concur with the ALJ, and dissent with the majority.  \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).  What constitutes reasonable and necessary medical \ntreatment is a question of fact for the Commission.  White Consolidated \nIndus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  \n\nWRIGHT - H208285  15\n  \n \n \nThe Arkansas Court of Appeals has held a claimant may be entitled \nto additional medical treatment even after the healing period has ended, if \nsaid treatment is geared toward management of the injury.  See Patchell v. \nWal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); Artex \nHydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  \nSuch services can include those for the purpose of diagnosing the nature \nand extent of the compensable injury; reducing or alleviating symptoms \nresulting from the compensable injury; maintaining the level of healing \nachieved; or preventing further deterioration of the damage produced by the \ncompensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 \nS.W.2d 593 (1995); Artex, supra. \nIn the present case, the Claimant suffered a compensable injury to \nher cervical spine on September 20, 2022.  Claimant was initially treated by \nDr. Michael Hussey for a compensable right shoulder injury resulting from \nthe work accident on September 20, 2022.  During Claimant’s treatment, \nshe was also assessed as having a probable cervical sprain and sent to \nphysical therapy.  The treatment initially resolved some of Claimant’s \ncervical symptomology, but as her symptoms worsened the Claimant was \nseen by Dr. Edward Saer who recommended an additional MRI.  The MRI \nimpression identified a disc osteophyte complex, joint hypertrophy and \nstenosis at the C5-6 level of the Claimant’s cervical spine.  Following this \n\nWRIGHT - H208285  16\n  \n \n \nMRI, Dr. Saer was hesitant to continue treatment or had no further \ntreatment to offer Claimant.  As a result, the Claimant requested and \nreceived a Change of Physician Order and began Treatment with Dr. Reza \nShahim.  Dr. Shahim opined on January 4, 2024, that Claimant had a \ncervical disc injury and recommended a series of cervical injections in \npreparation for possible surgical intervention if she did not improve as a \nresult from the September 20, 2022 accident.  Dr. Shahim further states \nthat he reviewed the Claimant’s cervical spine MRI which found the \nClaimant as having cervical spondylosis with stenosis at the C5-6 and C6-7 \nlevels.  On February 12, 2024, Claimant followed up with Dr. Shahim who \nrecommended an anterior fusion at C5-6 and possible C6-7 levels of her \ncervical spine due to her compensable cervical injury.  At that time, Dr. \nShahim also stated that the insurance carrier had denied his request to \nperform injections for the continued radicular symptoms the Claimant was \nsuffering from.  \nIn light of the admittedly compensable cervical injury, the continued \nsymptoms the Claimant suffered from and the credible evidence in the \nrecord, I would rule that the Claimant has proved by a preponderance of the \nevidence that she is entitled to additional medical treatment in the form of a \ncervical anterior fusion of the C5-C6 as recommended by Dr. Shahim. \n  For the reasons stated above, I respectfully dissent.   \n\nWRIGHT - H208285  17\n  \n \n \n              ___________________________________ \n       M. SCOTT WILLHITE, Commissioner","textLength":25274,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H208285 TERESA A. WRIGHT, EMPLOYEE CLAIMANT LOWE’S HOME CENTERS, LLC, EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 12, 2025","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["cervical","back","shoulder","neck","strain","sprain","rotator cuff","fracture"],"fetchedAt":"2026-05-19T22:29:44.505Z"},{"id":"full_commission-H304280-2025-03-12","awccNumber":"H304280","decisionDate":"2025-03-12","decisionYear":2025,"opinionType":"full_commission","claimantName":"Larry Zintel","employerName":"Pulaski County Road & Bridge,","title":"ZINTEL VS. PULASKI COUNTY ROAD & BRIDGE, AWCC# H304280 March 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Zintel_Larry_H304280_20250312.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Zintel_Larry_H304280_20250312.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H304280 \n \nLARRY M. ZINTEL, \nEMPLOYEE \n \nCLAIMANT \nPULASKI COUNTY ROAD & BRIDGE,  \nEMPLOYER \n \nRESPONDENT \nAAC RISK MANAGEMENT SERVICES, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 12, 2025  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MARK ALAN PEOPLES, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nMarch 5, 2024.  The administrative law judge found that the claimant \nproved he sustained a compensable injury.  After reviewing the entire \nrecord de novo, the Full Commission reverses the administrative law \njudge’s opinion.  We find that the claimant did not prove by a \npreponderance of the evidence that he sustained a compensable injury.     \nI. HISTORY \n The testimony of Larry M. Zintel, now age 46, indicated that he \nbecame employed with the respondents, Pulaski County Road & Bridge, in \n\nZINTEL - H304280  2\n  \n \n \nabout 2013.  The parties stipulated that the employment relationship existed \nat all pertinent times, including January 18, 2022.  The claimant testified on \ndirect examination: \n Q.  On January the 18\nth\n of 2022, what happened? \nA.  I was driving in to work, my phone rang.  I saw it was \nForeman Gary and I went to reach for it and couldn’t reach it, \nso I had to pull over, get my phone.  I answered it and Gary \nwas instructing me I need to go pick up David Jones because \nhis ride was not able to come in to work.   \nQ.  Okay.  Was he asking you for a personal favor? \nA.  I – I didn’t take it as a personal favor. \nQ.  What did you take it as? \nA.  I took it as he needed me to go pick up a fellow employee \non my way in to work and bring him to work, which, in turn, I’d \nhave to drive past the job, go pick him up and come back.   \nQ.  All right.  Did you feel like you had a choice as to whether \nor not you could go pick up Mr. Jones? \nA.  No, sir. \nQ.  Okay.  Did you think it was a directive from your superior? \nA.  Yes, sir.   \nQ.  All right.  So did you do so, go pick up Mr. Jones? \nA.  I was on my way. \nQ.  You didn’t pick up Mr. Jones.   \nA.  I got hit head-on before I could do it.   \nQ.  Okay.  You got hit head-on.  You were in a motor vehicle \naccident.  A serious motor vehicle accident, and we have the \npolice report in record on that, correct? \nA.  Yes, sir.   \nQ.  Okay.  What happened in the head-on the best you can \nremember? \nA.  I – I was coming up the hill at Roosevelt and Wolfe and the \nguy was coming at me.  The car passed him and he kinda \nswerved over and hit his brakes, and when he did, his front \nbrakes locked up and he slid right over in my lane and I tried \nto veer to keep him from hitting me too bad, and we collided.  I \ngot out the passenger side of my truck and I thought I wasn’t \nhurt because of the adrenaline and everything, and after \neverything was said and done I went home and started hurting \nreal bad.  I couldn’t hardly walk.   \n\nZINTEL - H304280  3\n  \n \n \n \n An ARKANSAS MOTOR VEHICLE CRASH REPORT dated January \n18, 2022 indicated that the Time of Crash was 6:44 a.m.  The ARKANSAS \nMOTOR VEHICLE CRASH REPORT NARRATIVE indicated that an \nindividual drove his vehicle into the truck being driven by the claimant.  The \nNARRATIVE indicated, “MR. ZINTEL ADVISED NO INJURIES[.]”     \nAccording to the record, the claimant received emergency medical \ntreatment on January 18, 2022: \nPt is a healthy 43 lyo WM, presents to ED via EMS after MVA, \nhe was a restrained driver hit by oncoming car.  Airbags \ndeployed.  Co HA, doesn’t think he hit his head, no LOC; neck \npain, B shoulder pain.... \nGood painless ROM B shoulders and hips. \nPost c spine tenderness in midline, collar replaced.   \n A physician’s diagnosis on January 18, 2022 was “Motor vehicle \naccident, initial encounter.  Strain of neck muscle, initial encounter.”    \nAn MRI of the claimant’s lumbar spine was taken on April 7, 2022 \nwith the following impression: \nNo evidence of acute lumbar spine injury.  Lower lumbar \ndegenerative findings are present, superimposed on mild \ndiffuse narrowing of the bony spinal canal secondary to short \npedicles, as detailed above.   \n \n The claimant followed up with Dr. Robert R. Ritchie on April 12, \n2022: \nMr. ZINTEL presents with low back pain, unspecified.  He \ncharacterizes it as intermittent, moderate in intensity, and \naching.  The event which precipitated this pain was a motor-\n\nZINTEL - H304280  4\n  \n \n \nvehicle accident (he was the driver).  He notes some pain \nrelief with physical therapy.... \n \n Dr. Ritchie’s assessment included “Low back pain, unspecified....He \nis now released for work.  He will probably return to work on 4/18/2022.”  \nDr. Ritchie completed a Concentra form on April 19, 2022 and indicated that \nthe claimant had reached Maximum Medical Improvement on April 12, \n2022.  Dr. Ritchie subsequently referred the claimant to Arkansas Spine \nand Pain, where the claimant was examined on June 2, 2022.  Dr. \nKrishnappa Prasad’s assessment included “Lumbar spondylosis” and \n“Lumbar radiculitis.”  Dr. Prasad treated the claimant conservatively and \nassigned work restrictions.   \n The claimant’s testimony indicated that the respondents terminated \nhis employment effective June 24, 2022.   \n The claimant began treating with Alexandria Peterson, PA-C on \nAugust 9, 2023: \n45-year-old male here for evaluation of his low back pain that \nhas been ongoing since an MVC in 2022.  He endorses \nmainly achy low back pain and posterior buttock/upper thigh \ntightness as well as bilateral S1 paresthesias worse on the \nright.  In the right leg it goes all the way to the bottom of his \nfoot.  He has undergone several months of nonoperative \ntreatment including 36 therapy sessions with some \nimprovement in symptoms, 1 injection with Arkansas spine \nand pain which worsened his symptoms, and medication \nmanagement.  All these interventions have minimally helped \nand he is still in significant pain.  He has not worked since this \nincident.  No issues prior to MVC. \n\nZINTEL - H304280  5\n  \n \n \nHe does appear to have isthmic anterolisthesis at L5 on S1, \ntransitional anatomy.  He has not had a recent MRI.  I will \nhave him get a new MRI to further evaluate the nature and \nseverity of his symptoms today.  He is currently on gabapentin \n300 mg and diclofenac with some improvement in his \nsymptoms.  He does have hydrocodone but reports that his \ninsurance does not cover this and he is not taking them.  I will \nsend him in a prescription for tizanidine 2 mg that he can use \nat night for his paresthesias in the meantime.  I will have him \nfollow-up with Dr. O. after advanced imaging to discuss \nresults and further treatment options at this time.   \nOccupation:  Road worker, lays concrete, has not been \nworking since incident.   \n \n Ms. Peterson planned “1.  Lumbar MRI to further evaluate the nature \nof severity of his symptoms today.  2.  Prescription sent today for tizanidine \n2 mg at night for his muscle spasms.”       \n An MRI of the claimant’s lumbar spine was taken on August 18, 2023 \nwith the impression, “Bilateral pars defects L5-S1 with grade 1 \nanterolisthesis.  Neural foraminal stenosis worse on the right at L5-S1.”    \n Dr. Ikemefuna Uzo Onyekwelu reported on August 23, 2023: \n45-year-old male who was involved in a motor vehicle \naccident and sustained severe back pain.  Prior to that he has \ndescribed no history of back pain and has never sought \nmedical attention for his lower back.  He works in construction \nand has had difficulty return to work because of this.  At this \ntime he is here today for surgical considerations given failure \nto improve thus far with clinician directed conservative \ntreatment.... \nNeuro Exam:  Grossly intact strength with intact sensation \nextremities.  Except for EHL weakness, right side.  All other \nmyotomies are 5/5 from L2-S1.  With intact station to touch \nL2-S1 except for right L5 paresthesia.   \nRADIOGRAPHIC INTERPRETATION:   \n\nZINTEL - H304280  6\n  \n \n \n8/18/2023 shows an isthmic spondylolisthesis with bilateral L5 \npars defect causing spondylolisthesis at L5-S1 and severe \nright-sided L5-S1 foraminal stenosis with impingement of the \nexiting L5 nerve root.   \nRADIOGRAPHIC INTERPRETATION: \n4 view radiographs lumbar spine obtained and reviewed today \non 8/9/2023 shows no obvious evidence of acute osseous \ninjury such as a fracture or dislocation.  Mild anterior listhesis \nof L5-S1.  Satisfactory alignment in sagittal and coronal \nplanes.  Transitional lumbar anatomy.  Mild hip OA.  Lumbar \nspondylosis.   \n \n Dr. Onyekwelu diagnosed “Lumbar radiculopathy, bilateral S1, R > L.  \nIsthmic lumbar spondylolisthesis, L5-S1.  Low back pain.  Lumbar \nspondylosis.  Transitional lumbar anatomy.  BMI 30+.”  Dr. Onyekwelu \nplanned, “45-year-old male with isthmic spondylolisthesis, unstable \nspondylolisthesis with flexion-extension radiographs.  He does have a \nbilateral L5 pars defect with severe foraminal stenosis at L5-S1 right-sided \nL5 radicular pain is quite severe.  He has tried and failed to improve with \nclincher directed conservative treatment and wants to proceed with surgical \nintervention.  This would include L5-S1 Gill laminectomy and right-sided L5-\nS1 TLIF.”   \n Dr. Onyekwelu reported on September 26, 2023: \nLarry M. Zintel is a 45 y.o. male with severe low back and \nbilateral lower extremity pain right side worse than left.  \nPatient was involved in a motor vehicle accident \napproximately 2 years ago and prior to this denies any history \nof back pain or seeking medical attention for low back pain.  \nHe has worked in construction for most of his life however \nafter the motor vehicle accident according to the patient he \nhas not been unable to do his job in that same capacity.  He \n\nZINTEL - H304280  7\n  \n \n \nhas had difficulty with low back pain including pain radiating to \nhis lower extremities.  Imaging studies revealed evidence of a \npars defect at L5 with severe L5-S1-foraminal stenosis.  This \nis very likely an exacerbation of her pre-existing condition.  \nGiven the patient’s symptomatology with the absence of any \nsymptoms before his accident and the presence of new \nsymptoms after the accident it is probable, 51% likelihood that \nhis symptoms may be related to the incident preceding his \nnew onset low back pain and lower extremity symptoms.  \nAfter 2 years she had tried and failed to improve with clinician \ndirected conservative treatment and has now elected to \nproceed with surgical intervention.... \n \n Dr. Onyekwelu performed a surgical procedure on September 26, \n2023 which included “L5-S1 Gill laminectomy and R TLIF.”  The pre- and \npost-operative diagnosis was “Spondylolisthesis, unspecified spinal region.  \nLumbar stenosis L5-S1.  Isthmic spondylolisthesis L5-S1 with severe \nbilateral L5-S1 foraminal stenosis.  Right-sided L5 radiculopathy secondary \nto right-sided L5-S1 foraminal stenosis.”   \n A pre-hearing order was filed on October 31, 2023.  The claimant \ncontended, “(a)  That he sustained a compensable injury to his back on \n01/18/22; (b)  He is entitled to medical treatment relative to his work \ninjuries.  (c)  That he is entitled to TTD from DOI until a yet-to-be-\ndetermined date in the future; (d)  That this claim is controverted and that \nthe undersigned is entitled to maximum statutory attorney fees.  All other \nissues are reserved.”   \n The parties stipulated that the respondents “have controverted this \nclaim in its entirety.”  The respondents contended, “Respondents contend \n\nZINTEL - H304280  8\n  \n \n \nthat Claimant was not performing employment related services at the time \nof his injury.  In light of this, it is Respondents’ position that they are not \nliable for benefits associated with his injury.  Alternatively, Respondents \nassert that the claimant did not suffer a compensable injury on or about \n1/18/22, there are no objective findings of an injury and the medical \ndocumentation does not support entitlement to benefits in the event \ncompensability is found.  Respondents also contend that the claimant was \nreleased as having reached maximum medical improvement on 4/12/22 \nand that in the event compensability is found, he would not be entitled to \ntemporary disability benefits beyond his MMI date.”   \n The parties agreed to litigate the following issues: \n1. Whether the Claimant sustained a compensable injury to \nhis back injury (sic) on January 18, 2022.   \n2. If the Claimant’s alleged back injury is deemed \ncompensable, the extent to which he is entitled to medical \nbenefits and temporary total disability benefits beginning \non January 19, 2022 and continuing until a date yet to be \ndetermined. \n3. Whether the Claimant’s attorney is entitled to a \ncontroverted fee.   \n \n  Dr. Ryan T. Fitzgerald corresponded with counsel for the \nrespondents on November 28, 2023 and stated in part: \nMr. Zintel was involved in a motor vehicle accident on 1/18/22, \nhereafter referred to as the subject event for the purposes of \nthis report. \nOn my personal review, MR imaging of the lumbar spine on \n4/7/2022 revealed no evidence of an acute traumatic injury.  \nGrade 1 anterolisthesis at L5-S1 was related to chronic \n\nZINTEL - H304280  9\n  \n \n \nbilateral L5 spondylolysis.  Findings consistent with chronic \ndegenerative disease included mild disc space narrowing and \ndisc desiccation at L5-S1, variable endplate osteophytes \n(alternatively known as bone spurs) from L1 through S1, and \nfacet arthrosis at and below L3/4.  A chronic-appearing \nannular fissure at L5-S1 was not accompanied by any active \nmarrow edema or adjacent soft tissue inflammation.  Minimal \ndisc bulges at T10/11, L1/2, L5/S1 did not compromise the \nspinal canal or result in any nerve root impingement.  Facet \narthrosis contributed to mild narrowing of the right neural \nforamen at L4/5 and mild-moderate narrowing of the right \nneural foramen at L5/S1.   \nMR imaging of the lumbar spine obtained on 8/18/2023 was \nsimilarly negative for any findings to indicate an acute \ntraumatic injury.  Chronic degenerative disease was again \nevident in the form of endplate osteophytes, facet arthrosis, \nand disc desiccation.  Grade I anterolisthesis at L5/S1 related \nto chronic bilateral L5 spondylolysis had not progressed.  \nMild-moderate narrowing of the right neural foramen \nsecondary to degenerative disc space narrowing and facet \narthrosis was unchanged.  No lumbosacral nerve root \nimpingement was demonstrated. \nIn summary, MRI exams obtained in April 2022 and August \n2023 showed, on my personal review, no evidence of an \nacute traumatic injury.  Instead, both exams revealed multiple \npotential degenerative pain generators independent of the \nsubject event.   \n \n After a hearing, an administrative law judge filed an opinion on \nMarch 5, 2024.  The administrative law judge found, among other things, \nthat the claimant proved he sustained a compensable injury.  The \nadministrative law judge awarded medical treatment and temporary total \ndisability benefits.  The respondents appeal to the Full Commission. \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-102(4)(Supp. 2024) provides in pertinent part: \n\nZINTEL - H304280  10\n  \n \n \n(A)  “Compensable injury” means: \n(i) An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in \nthe course of employment and which requires \nmedical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific \nincident or is identifiable by time and place of \noccurrence[.]   \n \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Supp. \n2024).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Supp. \n2024).  The requirement that a compensable injury must be established by \nmedical evidence supported by objective findings applies only to the \nexistence and extent of the injury.  Stephens Truck Lines v. Millican, 58 Ark. \nApp. 275, 950 S.W.2d 472 (1997).     \nThe employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Supp. 2024).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nAn administrative law judge found in the present matter, “3.  The \nclaimant has met his burden of proof in demonstrating he sustained a \ncompensable lower back injury/lumbar spine specific injury – the bilateral \npars defect and/or the aggravation or acceleration of the preexisting \n\nZINTEL - H304280  11\n  \n \n \ndegenerative condition(s) of his lumbar spine – as a result of the January \n18, 2022, MVA.  Based on the applicable law and the facts of this claim, \nthese conditions constitute ‘objective findings’ sufficient to support a claim \nfor benefits herein.”  The Full Commission does not affirm this finding.   \nThe claimant became employed with the respondents, Pulaski \nCounty Road & Bridge, in 2013.  The claimant testified that he was driving \nto his workplace on the morning of January 18, 2022.  The claimant testified \nthat a supervisor contacted him on the way and instructed him to pick up a \nco-worker, David Jones, to transport Mr. Jones to the place of employment.  \nDavid Jones testified that he had contacted the claimant on January 17, \n2022 and had asked the claimant to take him to work.   \nIn any event, the claimant testified that he was involved in a \nvehicular collision on January 18, 2022 while driving to pick up David \nJones.  An ARKANSAS MOTOR VEHICLE CRASH REPORT dated \nJanuary 18, 2022 indeed indicated that the claimant had been involved in a \nmotor vehicle accident.  We note that the ARKANSAS MOTOR VEHICLE \nCRASH REPORT indicated, “MR. ZINTEL ADVISED NO INJURIES[.]”  \nAccording to the record, the claimant received emergency medical \ntreatment on January 18, 2022.  At that time, a physician diagnosed “Strain \nof neck muscle, initial encounter.”  The medical evidence did not \n\nZINTEL - H304280  12\n  \n \n \ndemonstrate that the claimant had injured his lower back or lumbar spine as \na result of the January 18, 2022 motor vehicle accident.   \nAn MRI of the claimant’s lumbar spine was taken nearly three \nmonths later, on April 7, 2022.  The lumbar MRI showed degenerative \nfindings with “No evidence of acute lumbar spine injury [emphasis \nsupplied].”  Dr. Ritchie released the claimant to return to work on or about \nApril 18, 2022.  Dr. Ritchie also opined that the claimant had reached \nmaximum medical improvement on April 12, 2022.  The respondents \nterminated the claimant’s employment effective June 24, 2022.   \nAs we have noted, the claimant began treating with Alexandria \nPeterson, PA-C on August 9, 2023.  Ms. Peterson noted in part, “I will send \nhim in a prescription for tizanidine 2 mg that he can use at night for his \nparesthesias[.]”  There is no indication that “paresthesias” can be \ninterpreted as an objective medical finding establishing a compensable \ninjury.  The physician’s assistant planned a lumbar MRI and “2.  \nPrescription sent today for tizanidine 2 mg at night for his muscle spasms.”  \nThe Full Commission recognizes that a report of muscle spasms can \nconstitute objective medical findings.  Continental Express, Inc. v. Freeman, \n339 Ark. 142, 4 S.W.3d 124 (1999).  In the present matter, however, there \nis no probative medical evidence of record demonstrating that the claimant \nsuffers from lumbar muscle spasms as a result of the January 18, 2022 \n\nZINTEL - H304280  13\n  \n \n \nmotor vehicle accident.  We therefore find that Ms. Peterson’s prescription \nof Tizanidine is not objective medical evidence establishing a compensable \ninjury to the claimant’s low back or lumbar spine.  See Howell v. \nArkadelphia Human Dev. Ctr., 2023 Ark. App. 441, 675 S.W.3d 925.   \nAn MRI of the claimant’s lumbar spine was taken on August 18, 2023 \nwith the impression, “Bilateral pars defects L5-S1 with grade 1 \nanterolisthesis.”  The record does not show that “Bilaterals pars defects L5-\nS1” can be interpreted as medical evidence establishing a compensable \ninjury to the claimant’s low back or lumbar spine.  Dr. Onyekwelu reported \nin part on September 26, 2023, “Given the patient’s symptomatology with \nthe absence of any symptoms before his accident and the presence of new \nsymptoms after the accident it is probable, 51% likelihood that his \nsymptoms may be related to the incident preceding his new onset low back \npain and lower extremity symptoms [emphasis supplied].”  Medical opinions \naddressing compensability must be stated within a reasonable degree of \nmedical certainty.  Ark. Code Ann. §11-9-102(16)(B)(Supp. 2024).  Expert \nopinions based on “could,” “may,” or “possibly” lack the definiteness \nrequired to meet the claimant’s burden to prove causation in accordance \nwith Ark. Code Ann. §11-9-102(16)(B).  See Frances v. Gaylord Container \nCorp., 341 Ark. 527, 20 S.W.3d 280 (2000).  In the present matter, the Full \nCommission finds that Dr. Onyekwelu’s use of the term “may” does not \n\nZINTEL - H304280  14\n  \n \n \nmeet the definiteness required to prove causation within a reasonable \ndegree of medical certainty.  Accordingly, the Full Commission attaches \nminimal evidentiary weight to Dr. Onyekwelu’s opinion.  It is within the \nCommission’s province to weigh all of the medical evidence and to \ndetermine what is most credible.  Minnesota Mining & Mfg. v. Baker, 337 \nArk. 94, 989 S.W.2d 151 (1999).   \nFinally, Dr. Onyewkelu performed a lumbar laminectomy and fusion \non September 26, 2023.  The pre- and post-operative diagnoses were \n“Spondylolisthesis, unspecified spinal region.  Lumbar stenosis L5-S1.  \nIsthmic spondylolisthesis L5-S1 with severe bilateral foraminal stenosis.  \nRight-sided L5 radiculopathy secondary to right-sided L5-S1 foraminal \nstenosis.”  The Full Commission finds that these diagnoses cannot be \nconstrued as objective medical evidence establishing a compensable injury \nto the claimant’s lumbar spine.  \nTherefore, after reviewing the entire record de novo, the Full \nCommission finds that the claimant did not prove he sustained a \ncompensable injury in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(i)(Supp. 2024).  The claimant did not prove he sustained an \naccidental injury causing internal or external physical harm to his low back \nor lumbar spine.  The claimant did not prove that he sustained an injury to \nhis low back or lumbar spine which arose out of and in the course of \n\nZINTEL - H304280  15\n  \n \n \nemployment, required medical services, or resulted in disability.  The \nclaimant did not establish a compensable injury by medical evidence \nsupported by objective findings.  Because the Full Commission has found \nthat the claimant did not prove he sustained a compensable injury in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Supp. 2024), we need \nnot adjudicate whether the claimant proved he was performing employment \nservices in accordance with Ark. Code Ann. §11-9-102(4)(B)(iii)(Supp. \n2024).  The Full Commission reverses the administrative law judge’s finding \nthat the claimant proved he sustained a compensable injury, and this claim \nis respectfully denied and dismissed. \nIT IS SO ORDERED.                  \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n The Administrative Law Judge (hereinafter referred to as “ALJ”) \nfound that the Claimant proved he sustained a compensable lower back \ninjury/lumbar spine specific injury as a result of his January 18, 2022, motor \nvehicle accident and was entitled to reasonable and necessary medical \n\nZINTEL - H304280  16\n  \n \n \ncare for his compensable injury.  After conducting a thorough review of the \nrecord, I concur with the ALJ and dissent with the majority.  \nTo establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence.  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002).  \nThe employer takes the employee as he finds him.  Conway \nConvalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. \nApp. 1979).  A pre-existing disease or infirmity does not disqualify a claim if \nthe employment aggravated, accelerated, or combined with the disease or \ninfirmity to produce the disability for which compensation is sought. See, \nNashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 \n(1990); Conway Convalescent Center v. Murphree, 266 Ark. 985, 585 \nS.W.2d 462 (Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. \n\nZINTEL - H304280  17\n  \n \n \nApp. 30, 917 S.W.2d 550 (1996).  An increase in symptoms of a pre-\nexisting degenerative condition is sufficient to establish a compensable \ninjury.  Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d \n449 (2004). \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. § 11-9-508(a). \nReasonable and necessary medical services may include those necessary \nto accurately diagnose the nature and extent of the compensable injury; to \nreduce or alleviate symptoms resulting from the compensable injury; or to \nmaintain the level of healing achieved; or to prevent further deterioration of \nthe damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).  \nOn January 18, 2022, the Claimant was requested by a Respondent \nmanager or supervisor to pick up a co-worker.  On the way he was in a \nmotor vehicle accident in which the Claimant was hit head-on by another \nvehicle and the airbags deployed.  Claimant rejected medical care on the \nscene of the accident, but ultimately went to the emergency department of \nhis local hospital because of injuries he received in the motor vehicle \naccident.  Claimant was initially diagnosed with a strain of the neck muscle.  \nOn June 2, 2022, Claimant was seen by Dr. Krishnappa Prasad who \n\nZINTEL - H304280  18\n  \n \n \ndiagnosed the Claimant with lumbar spondylosis, and lumbar radiculitis, \nand facet arthritis of the lumbar spine.  Dr. Prasad also gave the Claimant \nthe work restrictions of “no heavy lifting more than 10 pounds / No \nprolonged standing or sitting for more than 15-20 minutes.  No extreme \nbending or twisting.” On August 9, 2023, Claimant was seen by Physician’s \nAssistant Alexandria Peterson who obtained the radiographic images from \nthe hospital and other imaging taken in the course and scope of Claimant’s \ntreatment.  Peterson found that Claimant had mild anteriorlisthesis of L5-S1 \nand diagnosed the Claimant with lumbar radiculopathy, bilateral S1, Isthmic \nlumbar spondylolisthesis of L5-S1, and lumbar spondylosis and referred the \nClaimant for a lumbar MRI based on those diagnoses.  Peterson also \ndiagnosed Claimant as having paresthesia and prescribed him tizanidine for \nmuscle spasms.  Claimant underwent the lumbar MRI on April 18, 2023, \nwhich showed “Bilateral pars defects L5-S1 with grade 1 anterolisthesis.  \nNeural foraminal stenosis worse on the right at L5-S1.” On August 23, \n2023, Claimant was seen by Dr. Onyekwelu to discuss the results of the \nClaimant’s lumbar MRI.  Dr. Onyekwelu recommended surgical intervention \nin the form of L5-S1 Gill laminectomy and a right-sided L5-S1 TLIF because \nthe Claimant had failed to improve with conservative treatment.  On \nSeptember 26, 2023, Claimant underwent surgery performed by Dr. \nOnyekwelu who opined:  \n\nZINTEL - H304280  19\n  \n \n \nPatient was involved in a MVA approximately 2 years ago and prior \nto this denies any history of back pain or seeking medical attention \nfor low back pain.  He has worked in construction for most of his life \nhowever after the MVA according to the patient he has not been \nunable to do his job in that same capacity.  He has had difficulty with \nlow back pain including pain radiating to his lower extremities.  \nImaging studies revealed evidence of a pars defect at L5 with severe \nL5-S1 foraminal stenosis.  This is very likely an exacerbation of his \npre-existing condition.  Given the patient’s symptomatology with the \nabsence of any symptoms before his accident and the presence of \nnew symptoms after the accident it is probable, 51% likelihood that \nhis symptoms may be related to the incident preceding his new onset \nlow back pain and lower extremity symptoms. \n \nA doctor is not required to be absolute in an opinion nor are the \nmagic words “within a reasonable degree of medical certainty” even \nrequired to be used by the doctor for an injury to be related to the work \naccident.  Freeman v. Con-Agra Frozen Foods, 344 Ark. 296 (2001).  \nRather, the medical opinion must simply be more than speculation.  Id. If a \ndoctor renders an opinion about causation of a workers’ compensation \ninjury with language that goes beyond possibilities and establishes that \nwork was the reasonable cause of the injury, this should pass muster.  Id.\n In the present case, Claimant has an objective injury to his lumbar \nspine and Dr. Onyekwelu states that this injury is “very likely” an \nexacerbation of a pre-existing condition in Claimant’s lower back. A pre-\nexisting disease or infirmity does not disqualify a claim if the employment \naggravated, accelerated, or combined with the disease or infirmity to \nproduce the disability for which compensation is sought.  See, Nashville \n\nZINTEL - H304280  20\n  \n \n \nLivestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); \nConway Convalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 \n(Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 \nS.W.2d 550 (1996).  An increase in symptoms of a pre-existing \ndegenerative condition is sufficient to establish a compensable injury.  \nParker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d 449 \n(2004). \nThere is no credible evidence in the record to suggest that Claimant \nhad experienced significant symptomology in his lower back prior to the \nmotor vehicle accident on January 18, 2022.  \nTherefore, I would find that Claimant suffered a compensable lower \nback injury as a result of his January 18, 2022 work accident and is entitled \nto reasonable and necessary medical treatment of such injury including the \nsurgery performed by Dr. Onyekwelu.  \nFor the reasons stated above, I respectfully dissent. \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":31643,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H304280 LARRY M. ZINTEL, EMPLOYEE CLAIMANT PULASKI COUNTY ROAD & BRIDGE, EMPLOYER RESPONDENT AAC RISK MANAGEMENT SERVICES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 12, 2025","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["back","neck","shoulder","strain","lumbar","fracture","hip"],"fetchedAt":"2026-05-19T22:29:44.525Z"},{"id":"alj-H402480-2025-03-11","awccNumber":"H402480","decisionDate":"2025-03-11","decisionYear":2025,"opinionType":"alj","claimantName":"Mark Ballard","employerName":"U S Xpress, Inc","title":"BALLARD VS. U S XPRESS, INC. AWCC# H402480 March 11, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Ballard_Mark_H402480_20250311.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Ballard_Mark_H402480_20250311.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H402480 \n \nMARK BALLARD, EMPLOYEE   CLAIMANT \n \nU S XPRESS, INC., EMPLOYER   RESPONDENT \n \nGREAT WEST CASUALTY COMPANY, CARRIER/TPA   RESPONDENT \n \nOPINION FILED MARCH 11, 2025 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on  February  4,  2025,  in  Little  Rock, \nArkansas. \n \nClaimant represented himself, Pro Se, Vilonia, Arkansas. \n \nRespondents were represented by Mr. Eric Newkirk, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  full  hearing  was  held  on  this  claim  on February  4,  2025.  A  prehearing  telephone \nconference took place on November 20, 2024. A  prehearing order was entered on that date  and \nsubsequently entered into evidence as Commission Exhibit 1. The parties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. The  employer/employee/carrier  relationship  existed  among  the  parties  on \nMarch 23, 2024, when Claimant allegedly sustained compensable injuries \nto his left elbow and left hip. \n \n3. Respondents have controverted this claim in its entirety. \n \n4. The  parties  stipulate  to  Claimant’s  Temporary  Total  Disability  (TTD) \nbenefits rate being $876.00 and Permanent Partial Disability (PPD) benefits \nrate being $657.00, weekly. \n \n \n \n\nBALLARD H402480 \n \n2 \n \nThe parties have identified the following issues to be adjudicated: \n1. Whether  Claimant  sustained  compensable  injuries  to  his  left  hip  and  left  elbow  by \nspecific incident. \n \n2. Whether Claimant is entitled to reasonable and necessary medical treatment and related \nexpenses, including mileage and out of pocket expenses. \n \n3. Whether  Claimant  is  entitled  to  Temporary  Total  Disability  (TTD)  from  March  24, \n2024, to a date to be determined. \n \n All other issues are reserved. \n \nCONTENTIONS \nClaimant contends that: \n1. He passed out and fell on his left hip at Love’s Truckstop in Carthage, \nTexas. \n2. He was injured while working for U S Xpress. \n3. He reported the injury to the Respondent employer. \nRespondents contend that: \n1. They cannot establish a compensable injury on March 23, 2024, have no \nknowledge of a purported work incident and assert that no work-related \nevent/incident occurred on March 23, 2024. \n2. Alternatively, any issues that occurred were idiopathic in nature and in no \nway causally connect to any sort of work activities or specific work \nevent/incident. Thus, any resulting left hip or left elbow problems would \nnot be compensable or in any way work-related as they were instead \ntraceable to an idiopathic fall. \n \n \n\nBALLARD H402480 \n \n3 \n \n3. They are unaware of any objective medical findings of left hip or left \nelbow injury.  To the extent any objective medical findings do exist then \nsuch findings are traceable to pre-existing abnormalities and not work-\nrelated or causally connected to a compensable work event/incident on \nMarch 23, 2024. \n4. They plead an offset for any group medical insurance or group short-term \ndisability benefits paid to the Claimant or on his behalf.  Respondents also \nassert an offset for any unemployment benefits paid to the Claimant, to the \nextent allowed under Arkansas law. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary  record,  I  hereby  make  the  following  Findings  of  Fact  and  Conclusions  of  Law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant has not proven that he has sustained a left elbow and left hip injury with \nobjective findings nor was his passing out episode work-related.  \n \n4. Based  on  my  findings  of  no  compensability,  the  remaining  issues  of  reasonable  and \nnecessary medical treatment, and temporary total disability benefits are moot and will \nnot be addressed in this opinion \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1A and 1B, pictures, consisting of 2 pages \ntotal, Claimant’s Exhibit 2, payment records, that consists of 18 pages, Respondents’ Exhibit 1, \nmedical records, that consist of 93 pages, Joint Exhibit 1, driver message history, consisting of 128 \n\nBALLARD H402480 \n \n4 \n \npages, and Commission Exhibit 1, Pre-Hearing Order filed July 2, 2024, that consists of 5 pages. \nForms AR-C, AR-2, and AR-1 will be blue-backed and made a part of the evidentiary record. The \nClaimant was the only witness testifying at the full hearing.  \nClaimant was employed as a truck driver for the Respondent/Employer. On March 23, \n2024, Claimant passed out at a gas pump in Carthage, Texas after filling up his work truck.\n1\n The \nClaimant was rushed, by ambulance, to UT Health Carthage, emergency department. Resp. Ex. 1, \npp. 64 – 71. The attending provider was Dr. Orlando Beckum. After examining the Claimant, Dr. \nBeckum diagnosed Claimant’s fainting episode as syncope, the unspecified type. Id. The Claimant \nalleges he had injured his left elbow and left hip when he passed out. But did not introduce one \nscintilla of medical evidence into the record showing a left elbow or left hip injury. Moreover, the \nClaimant did not provide any documentary/medical proof demonstrating a nexus between his \nemployment and his fainting episode at the gas pump. The Claimant, however, did testify that he \ndid have an x-ray of his left hip that shows bone spurs, but did not produce the x-ray report. When \nasked why he did not produce the x-ray report he stated that the doctor’s office would not give him \nthe records. Trans. p.76, line 25, thru p. 78, lines 1 – 7.  \nThe Claimant’s testimony was speculative as to why he passed out resulting in the alleged \ninjuries to his left elbow and left hip. The Claimant alleges that he was on the road for fifteen days \nwithout his medication for his high blood pressure, diabetes, and other medical conditions. Trans. \np. 24, lines 19 – 25, thru p. 25, lines 1 – 3.; Trans. p. 38, lines 13 – 25, thru p. 39, lines 1 2. The \nClaimant testified that he did make it home to get his medication and was taking it two or three \n \n1\n Claimant alleges that his issues began with a spider bite that occurred inside the cab of his truck around September \n9, 2022, but healed a month later. Trans. p. 16, lines 21 – 25 thru p. 17, lines 1 – 25. I found the testimony \nconcerning the spider bite wholly irrelevant to Claimant’s March 23, 2024, passing out episode and subsequent \nalleged left hip and left elbow injury. The Claimant has never made a workers’ compensation claim for the spider \nbite. \n\nBALLARD H402480 \n \n5 \n \ndays prior to passing out at the gas station pump in Carthage, Texas. Claimant also testified that \nhe was going to get something to eat after getting gas for his truck. The Claimant blamed \nRespondent/Employer  as  the  reason  he  passed  out. The  Claimant  alleged that \nRespondent/Employer did not allow him to go home to get his medication during that fifteen-day \nstretch when he was without his medication. But contrary to his allegation, Claimant testified that \nhe didn’t ask Respondent/Employer to go home to get his medication during those fifteen days. \nTrans. p. 33, lines 9 – 16. The Claimant also testified that he did not tell the Respondent/Employer \nthat he wasn’t feeling well. Trans. p. 35, lines 2 – 25. \nAdjudication \nA. Whether Claimant sustained a compensable injury to his left elbow and left hip by \nspecific incident. \nUnder Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the body . . . \narising out of and in the course of employment and which requires medical services \nor results in disability or death.  An injury is “accidental” only if it is caused by a \nspecific incident and is identifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective findings.  \nArk. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings that \ncannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  The element “arising \nout of . . . [the] employment” relates to the causal connection between the claimant’s injury and \nhis or her employment.  City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987).  \nAn  injury arises  out  of  a  claimant’s  employment  “when  a  causal  connection  between  work \nconditions and the injury is apparent to the rational mind.”  Id. \n\nBALLARD H402480 \n \n6 \n \n If  the  Claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements for establishing compensability, compensation must be denied.  Mikel v. Engineered \nSpecialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n Claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission.  White v. Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness but may accept and translate into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \nClaimant  has  not  proven  by  the  preponderance  of  the  evidence  that  he  sustained  a \ncompensable work-related injury to his left  elbow and left hip with objective findings. The \nClaimant has not proven that a specific work-related event occurred that caused the Claimant to \npass out at the gas pump resulting in the alleged left elbow and left hip injury. The Claimant argues \nthat it was his lack of medication for fifteen days that ultimately caused him to pass out. The \nClaimant has not provided any medical evidence to substantiate this claim. During my review of \nRespondents submitted medical records covering the day of the alleged incident, March 23, 2024, \nto August 29, 2024, there was no mention of a left elbow or a left hip injury. Resp. Ex. 1, pp. 66-\n89. As to the reason the Claimant passed out, the records refer to it as syncope, the unspecified \ntype. Id. at 64-71. The Claimant also testified that he never told his employer that he needed his  \n\nBALLARD H402480 \n \n7 \n \nmedication during those fifteen days. Trans. p. 33, lines 9 - 16. The Claimant further testified that \nhe has neglected his health and that he just messed up. Trans. p. 47, lines 9 – 24. I find by the \npreponderance of the evidence that Claimant’s passing out episode was idiopathic, likely a result \nof him not taking care of his own personal health, but not work-related.   \nMoreover, Claimant has not produced any medical evidence demonstrating an injury to his \nleft elbow and left hip. The Claimant has not introduced any medical records whatsoever into the \nevidentiary record. Nor did he specify the alleged work-related event that caused the Claimant to \npass out resulting in the alleged left elbow and left hip injury. Looking solely at Respondent’s \nsubmitted medical record, Dr. Beckum diagnosed the Claimant’s passing out episode as syncope, \nthe unspecified type. Resp. Ex. 1, pp. 64 – 71. Furthermore, Dr. Beckum did not link Claimant’s \nfainting episode with his employment. Thus why, I must find that the Claimant has failed to prove \nby the preponderance of the evidence that he has sustained a work-related injury, with objective \nfindings, to his left elbow and left hip. Therefore, Claimant’s claim must fail. Mikel v. Engineered \nSpecialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  \nMISCELLANEOUS ISSUES \n Based on my previous findings that Claimant has failed to prove he sustained a work-\nrelated injury by specific incident and the lack of objective findings of a left elbow and left hip \nwork-related injury, the remaining issues regarding reasonable and necessary medical treatment, \ntemporary total disability benefits, are moot and will not be addressed in this opinion.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n  \n\nBALLARD H402480 \n \n8 \n \nIT IS SO ORDERED. \n \n \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":13189,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402480 MARK BALLARD, EMPLOYEE CLAIMANT U S XPRESS, INC., EMPLOYER RESPONDENT GREAT WEST CASUALTY COMPANY, CARRIER/TPA RESPONDENT OPINION FILED MARCH 11, 2025 Hearing before Administrative Law Judge, Steven Porch, on February 4, 2025, in Little Rock, Arkans...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["hip"],"fetchedAt":"2026-05-19T22:42:28.567Z"},{"id":"alj-G702350-2025-03-11","awccNumber":"G702350","decisionDate":"2025-03-11","decisionYear":2025,"opinionType":"alj","claimantName":"Nancy Heitman","employerName":"Arkansas Department Of Correction","title":"HEITMAN VS. ARKANSAS DEPARTMENT OF CORRECTION AWCC# G702350 March 11, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HEITMAN_NANCY_G702350_20250311.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HEITMAN_NANCY_G702350_20250311.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM No G702350 \n \nNANCY HEITMAN (FORMERLY COONEY), EMPLOYEE    CLAIMANT \n \nvs. \n \nARKANSAS DEPARTMENT OF CORRECTION  \n(McPHERSON UNIT), EMPLOYER               RESPONDENT No 1 \n                           \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, TPA            RESPONDENT No 1 \n \nDEATH & PERMANENT TOTAL DISABILTY             RESPONDENT No 2 \nTRUST FUND \n \n \n \nOPINION & ORDER FILED 11 MARCH 2025 \n \n \nThis claim was heard before Arkansas Workers’ Compensation Commission (the \n“Commission”) Administrative Law Judge JayO. Howe on 11 December 2024 in Little Rock, \nArkansas. \n \nThe claimant was represented by the Caldwell Law Firm, Mr. Andy L. Caldwell. \n \nRespondent No 1 was represented by the Public Employee Claims Division, Mr. Charles \nMcLemore. \n \nRespondent No 2 was excused from participating in the proceeding. \n \nSTATEMENT OF THE CASE \n \n The claimant and Respondent No 1 participated in a prehearing conference on 30 \nJuly 2024. A Prehearing Order was entered the same day. That Order was entered into the \nhearing record without objection as Commission’s Exhibit No 1. As outlined in the \nPrehearing Order, the parties agreed to the following: \nSTIPULATIONS \n 1. The Commission has jurisdiction over this claim. \n\nHEITMAN (FORMERLY COONEY)- G702350 \n2 \n \n2. The employee/employer/TPA relationship existed on or about 3 April 2017, \nwhen the claimant sustained an accepted injury to her left knee. \n \n3. At the time relevant to this matter, the claimant was earning an average \nweekly wage of $539.06 per week, which would entitle her to compensation \nrates of $359 and $269 per week for Temporary Total Disability (TTD) and \nPermanent Partial Disability (PPD), respectively. \n \n4. This claim was previously heard before the Commission on 9 September \n2020. An ALJ’s Opinion on the issues litigated at that hearing was entered on \n8 December 2020. The Law of the Case Doctrine applies to that Opinion. \n \nISSUES \n1. Whether the claimant is entitled to PPD benefits. \n \n2. Whether the claimant is entitled to the costs associated with a Functional \nCapacity Evaluation, as she contends that it was reasonable and necessary \nmedical treatment.\n1\n \n \n 3. Whether the claimant is entitled to an attorney’s fee. \n All other issues are reserved.\n2\n \nCONTENTIONS \n According to their prehearing filings: \nThe claimant contends that she suffered compensable injuries to her left knee \nin the course and scope of her employment which resulted in the need for treatment \nbeginning on or about April 3, 2017. Claimant had a total ACL reconstruction and \ndebridement of cyclops lesion of posterior capsular release. Dr. Philip Allan Smith \nreleased the claimant with no impairment despite the two surgical procedures. \nClaimant is entitled to anatomical impairment in accordance with the American \n \n1\n This issue was not included in the Prehearing Order, but it is consistent with the \nclaimant’s amended prehearing information entered into the record without objection as \nCommission’s Exhibit No 3. The respondents did not object to the issue being presented at \nthe hearing. [TR at 10.] \n2\n The Prehearing Order indicated an additional issue of whether the claimant was entitled \nto benefits under ACA § 11-9-505(a)(1). The parties agreed at the beginning of the hearing \nthat that issue would not be presented for litigation. [TR at 9-10.] \n\nHEITMAN (FORMERLY COONEY)- G702350 \n3 \n \nMedical Association’s Guides to the Evaluation of Permanent Impairment, 4\nth\n \nEdition. Functional Testing Centers, Inc. (FTC) has assigned an 8% rating to the \nclaimant’s lower extremity. The claimant is entitled to 8% impairment for her lower \nextremity or impairment as determined by the Commission in accordance with the \nAct and the Guides to the Evaluation of Permanent Impairment, 4\nth\n Edition. \nClaimant further contends that the evaluation by FTC was reasonable and \nnecessary medical treatment under the Act for which the respondents should be \nresponsible and for which the respondent should reimburse the claimant’s cost. The \nrespondents have controverted the claimant’s entitlement to additional benefits, and \nClaimant is entitled to attorney’s fees on all controverted benefits. \n Respondents No. 1 contend that the claimant did sustain a compensable injury \nto  her  left  knee  on  April  3,  2017, that this  claim  has  been  accepted,  and  that \nappropriate benefits have been or are being paid by Respondent No. 1. The claimant \nhas  been  provided  medical  treatment  reasonable  and  necessary  for  her  injury, \nincluding left anterior cruciate ligament reconstruction with quad tendon autograft \nsurgery performed by Dr. Smith on May 3, 2017, and a left anterior cruciate ligament \ncyclops debridement and posterior capsular release performed by Dr. Smith on August \n23, 2017. The claimant was released at MMI by Dr. Smith on November 7, 2017, with \nzero percent (0%) permanent impairment and no permanent restrictions, Dr. Smith \nnoted in his report that the Claimant had full extension and good flexion, good \nstrength, was not having any pain at this time, had regained all of her motion, and \nwas ready to go back to work.  \n The claimant was paid TTD benefits during her healing period, from April 4, \n2017, to November 7, 2017. The TTD benefits were suspended on October 6, 2017, \n\nHEITMAN (FORMERLY COONEY)- G702350 \n4 \n \nwhen the claimant did not appear at a scheduled appointment, and her attorney was \nnotified of this by the adjuster. Subsequently, when it was determined that the \nclaimant had missed the appointment but called to reschedule, TTD benefits were \nreinstated, from October 6; and her attorney was notified of this by the adjuster. \n The claimant made a demand for benefits\n3\n under 11-9-505 on November 22, \n2017. Claimant has since returned to work for her employer at greater wages than at \nthe time of her injury. The claimant, who was hired on March 26, 2017, was not yet \neligible for FMLA protection at the time of her April 3, 2017 injury, and had been \nterminated after being off work with no leave time; but she was rehired and began \nwork on November 27, 2017, at a position with greater pay than what she earned at \nthe time of her injury. \n Respondent No. 1 contends that no additional TTD benefits are owed as the \nclaimant has already been paid TTD for all of the days during her healing period. \nRespondent No. 1 contends that no PPD benefits are owed because the claimant was \nreleased at MMI by her treating physician with a finding that she had no permanent \nimpairment as well as finding she had full extension and good flexion, good strength, \nwas not having any pain at this time, had regained all of her motion, and was ready \nto go back to work. Respondent No.1 contends that the claimant has returned to work \nfor her employer at greater wages than she made at the time of injury. Respondent \nNo. 1 contends that the claimant is not owed benefits under either section of 11-9-505. \nRespondent  No.  1 contends  that  all  appropriate  benefits  have  been  paid  to  this \nClaimant.  \n \n3\n See FN2. \n\nHEITMAN (FORMERLY COONEY)- G702350 \n5 \n \n At the time of the prehearing conference on December 5, 2017, the claimant \nrequested  a  Change  of  Physician; but  subsequently,  the claimant  withdrew  her \nrequest for a change of physician and requested to see Dr. Smith again. Respondent \nprovided the claimant with another visit with Dr. Smith on February 1, 2018, and \nagain  on  October  2,  2018, at  the claimant’s  request.  Claimant  demanded  an \nIndependent Medical Evaluation (IME) with a different doctor for the sole purpose of \nobtaining  to  Claimant’s  Motion  for  an  Independent  Medical  Examination  and \ncontends  that  the claimant’s  treating  physician  has  already  stated  his  opinion \nregarding  permanent  anatomical  impairment  related  to  compensable  injury.  A \nhearing  was  held  on  the claimant’s  demand,  with  an  Opinion  and  Order  filed \nDecember 8, 2020, denying the claimant’s demand for an IME, no appeal was filed, \nand this decision was final, res judicata, and the law of the case.  \n There has been no activity on the claim since that final December 8, 2020, \ndecision; so Respondent No. 1 filed its Motion to Dismiss for Want of Prosecution on \nJune 3, 2024, which Claimant has now objected to and demanded a hearing. \nRespondent No. 1 contends that the claimant cannot establish her \nentitlement to an impairment rating for her 2017 injury. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witness, observing her demeanor, I make the \nfollowing findings of fact and conclusions of law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The stipulations as set forth above are accepted. \n3. The claimant failed to prove by a preponderance of the evidence that she is \nentitled to PPD benefits. \n\nHEITMAN (FORMERLY COONEY)- G702350 \n6 \n \n \n \n4. The claimant failed to prove by a preponderance of the evidence that she is \nentitled to the costs associated with the impairment evaluation. \n \n5. The claimant failed to prove by a preponderance of the evidence that she is \nentitled to an attorney’s fee. \n \nSUMMARY OF THE EVIDENCE \n The claimant was the only witness. The record consists of the hearing transcript and \nthe following exhibits: Commission’s Exhibit No 1 (the Prehearing Order); Commission’s \nExhibit No 2 (the respondent’s prehearing information); Commission’s Exhibit No 3 (the \nclaimant’s amended prehearing information); Claimant’s Exhibit No 1 ( an index page and \n46 pages of medical records); Claimant's Exhibit No 2 (one index page and a one-page bill for \nFTC’s services); Respondents No 1 Exhibit No 1 (correspondence dated 1 October 2024 that \naccompanied their submission of exhibits before the hearing); and Respondents No 1 Exhibit \nNo 2 (one index page and 14 pages of non-medical records). A previous hearing on whether \nthe claimant was entitled to an IME was held on 8 December 2020. The transcript from \nthat proceeding was incorporated by reference. \nTESTIMONY \n  Claimant Nancy Heitman (formerly Cooney) \nThe claimant is a forty-three-year-old female who injured her left knee doing \njumping jacks at the respondent-employer’s training academy on 3 April 2017. She was \ndiagnosed with a torn ACL and ultimately underwent surgical repair with Dr. Smith on 3 \nMay 2017. A follow-up surgery was performed on 23 August 2017 for a debridement of some \nscar tissue. \nThe claimant testified that after some post-operative physical therapy, she was \nreleased by Dr. Smith in November of 2017 despite some continuing difficulties with her \nleft knee. She described experiencing some weakness and decreased muscle volume in her \n\nHEITMAN (FORMERLY COONEY)- G702350 \n7 \n \nthigh, along with “pain, swelling, [and] popping.” She also described her gait as altered at \nthe time of her release.  \nDr. Smith’s clinic note from the date of her release indicated that the claimant had \n“full extension and good flexion” at the time; but she disagreed with that assessment. She \ncredited his opinion, however, that she needed to “continue working on quad and hamstring \nstrengthening.” According to her testimony, her left thigh and calf muscles were both \nsmaller at the time of her release than they had been prior to her injury. \nThe claimant testified that she continues having pain, swelling, clicking, and \npopping in her left knee. She believes that her knee has not been the same since her injury \nand subsequent treatment. She described her condition as currently worse than at the time \nof her release and stated that she continues to experience weakness and difficulty \nstraightening her leg. \nOn cross-examination the claimant confirmed that her testimony about the reduced \nsize of her thigh muscle related to the time of her release, but that the difference in muscle \nsize was not present at the time of the hearing. She recalled an appointment with Dr. \nSmith after her release where he noted left knee pain after prolonged running. According to \nthe claimant, she stopped seeing Dr. Smith at that time because he would not listen to her. \nThe claimant stated that she began seeing an orthopedic physician at NEA Baptist \naround the time that she started working in security for the facility, sometime around \nSeptember of 2022. In that security role, she said that she avoids taking the stairs, opting \nfor elevators instead, when moving about the facility. The claimant then confirmed that she \nwas not actually examined by the occupational therapist who authored an impairment \nevaluation letter she entered into evidence. She is not currently treating with any provider \nfor her left knee. \n \n\nHEITMAN (FORMERLY COONEY)- G702350 \n8 \n \n Medical and Documentary Evidence \n The claimant first presented to Central Arkansas Urgent Care with a chief \ncomplaint of left knee pain on 5 April 2017. She was preliminarily diagnosed with a sprain \nand referred to OrthoArkansas. She was soon diagnosed with an ACL tear and scheduled \nfor surgical repair on 3 May 2017. About three months after surgery, Dr. Smith suspected \nthat a cyclops lesion was hindering her recovery and impinging her range of motion. An \narthroscopic debridement procedure was then scheduled after an MRI confirmed the cyclops \nlesion. \n The claimant underwent the debridement procedure on 23 August 2017. She \nfollowed up in clinic on 1 September 2017, when Dr. Smith noted that he wanted her to \ncontinue working on range-of-motion exercises and quad strengthening. A physical therapy \nnote from that same day provided: \nMs. Cooney has been seen in clinic for 3 visits following debridement of L \nknee after ACL [surgery]. Pt has been independent with ambulation since re-\neval. Pt reports more soreness in knee than pain. AROM L knee 2-110 deg. \nPROM 0-115 deg. We have continued to progress strength but have really \nemphasized knee flexion and extension ROM. [sic] \n \n[Cl. Ex. No 1 at 42.] \nThe claimant later returned to Dr. Smith’s clinic and was released on 7 November \n2017. At that visit, he noted: \nHPI: Status post left ACL reconstruction. She also had a debridement of a \ncyclops lesion of posterior capsular release for stiffness. She has done very \nwell following her second surgery. She is not having any pain at this time. \nShe has regained all of her motion. She is ready to go back to work. \n \nEXAMINATION: Left knee shows healed incisions. She has full extension \nand good flexion. She is a firm Lachman. She has good strength. \n \n. . .  \n \nPLAN: She may resume all activities as tolerated. She needs to continue \nworking on quad strengthening and hamstring strengthening. I will see her \n\nHEITMAN (FORMERLY COONEY)- G702350 \n9 \n \nback as needed. She has reached MMI. She will have a 0% permanent \nimpairment rating. \n \n[Cl. Ex. No 1 at 44.] \n The claimant also introduced a report titled, Impairment Evaluation from Records- \nLower Extremity, authored by Occupational Therapist Casey Garretson of Functional \nTesting Centers, Inc., on 14 November 2024. According to that opinion letter: \nAccording to the medical record, Dr. [Smith] declared this patient at MMI on \n11-07-2017 and indicated in that note, “She needs to continue working on \nquad and hamstring strengthening.” With this information as well as other \nnotes from Dr. Smith reporting that she needs to continue working on quad \nstrengthening, it would be reasonable in my professional opinion that had a \nmoderate girth deficit due to her noted weakness in her thigh at the time of \nMMI. Using Section 3.2c, Table 37 on page 77 of the Guides, Muscle \nAtrophy, this would result in an 8% Lower Extremity, 3 % Whole \nPerson Impairment in this case. There seemed to be a failure to note any \nmeasured atrophy in the medical records. [Emphasis in original.] \n \nAlso, according to the medical record, it is noted at the time of MMI, Dr. \nSmith stated, “She has full extension and good flexion.” Therefore, she did \nnot qualify for impairment based on loss of motion at the time of MMI. \nHowever, in Dr. Smith’s note from 10-02-2018, he stated, “She lacks a few \ndegrees of full extension compared to the opposite side.” Based on the notes \nfrom Dr. Smith, it is unclear the exact amount of degrees of extension that \nMs. Cooney is lacking. \n \n. . .  \n \nSummary Statement: \n \nAlthough Ms. Cooney’s girth was not measured or documented in the medical \nrecords, it is highly likely that she indeed had a muscle atrophy impairment, \nas Dr. Smith made several reports of left quad and/or left hamstring \nweakness. \n \nBased on the muscle atrophy impairment, she would be entitled to a 3% \nwhole person impairment, or 8% lower extremity impairment. \n \n[Cl. Ex. No 1 at 45-46.] \n The claimant submitted into evidence a bill for the impairment report. [Cl. Ex. No 2 \nat 1.] She argues that the evaluation and report were reasonable and necessary medical \nservices for which the respondents should be liable.  \n\nHEITMAN (FORMERLY COONEY)- G702350 \n10 \n \nADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nA. The Claimant Failed to Prove by a Preponderance of the Evidence That \nShe is Entitled to Permanent Partial Disability Benefits. \n \nPermanent impairment is any permanent functional or anatomical loss remaining \nafter the end of the healing period has been reached. Johnson v. General Dynamics, 46 Ark. \nApp. 188, 878 S.W.2d 411 (1994). Any determination of the existence or extent of physical \nimpairment shall be supported by objective and measurable physical findings. Ark. Code \nAnn. § 11-9-9704(c)(1). Objective findings are those findings which cannot come under the \nvoluntary control of the patient. Id. § 11-9-102(16)(A)(i). Medical opinions \naddressing impairment must be stated within a reasonable degree of medical certainty. Id. \n§ 11-9102(16)(B). Permanent benefits shall be awarded only upon a determination that the \ncompensable injury was the major cause of the disability or impairment. Id. § 11-9-\n\nHEITMAN (FORMERLY COONEY)- G702350 \n11 \n \n102(f)(ii)(a). \"Major cause\" means more than fifty percent (50%) of the cause. Id. § 11-9-\n102(14). \nThe crux of this claim lies between competing opinions on whether the claimant is \nentitled to an impairment rating and the commensurate PPD benefits. On the one hand \nthere is the opinion from her treating surgeon who supervised her care through two \nsurgical procedures and rehabilitative periods. On the other hand is the opinion of a \nqualified occupational therapist who reviewed the surgeon’s records and then offered his \nown contradictory opinion. Given the record evidence, the claimant has failed to prove by a \npreponderance of the evidence that she is entitled to PPD benefits. \nThe evidence shows that Dr. Smith was responsible for managing the claimant’s \ninitial post-surgical care and recovery. After she was not progressing as expected, he sought \nfurther surgical intervention, by way of the debridement procedure, to promote her return \nto function. He monitored and evaluated her gains as she participated in physical therapy. \nWhen he saw the claimant on 1 September 2017, he noted that she had some bruising and \nlacked full extension. He also noted that he wanted her to “continue working on range of \nmotion and quad strengthening.” \nDr. Smith then saw the claimant again on 7 November 2017 and noted what appears \nto be excellent progress. “She is not having any pain at this time. She has regained all of \nher motion. She is ready to go back to work.” He further indicated that she had “full \nextension and good flexion.” Good strength was also noted. He released her at MMI that \nday and found her to have no permanent impairment (0% permanent impairment rating). \nThe record from a previous hearing in this claim shows that the respondents, when \nreviewing the claimant’s status with her attorney, had obtained hand-written confirmation \nfrom Dr. Smith that she had “Full ROM. No Ligamentous laxity. 0% according to AMA 4\nth\n \nedition.” See 9 September 2020 TR, Resp. Ex. No 3 at 3-4. An email relaying the same \n\nHEITMAN (FORMERLY COONEY)- G702350 \n12 \n \ncommunication and information was introduced into the record for this hearing. [Resp. Ex. \nNo 2 at 7.] \nI find Dr. Smith’s opinion on the claimant’s condition and his assignment of a zero \npercent (0%) impairment rating at the time of her 7 November 2017 release at MMI to be \ncredible. The Commission is authorized to accept or reject a medical opinion and is \nauthorized to determine its medical soundness and probative value. Poulan Weed Eater v. \nMarshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). In the absence of contemporaneous \nobjective, measurable findings conflicting with Dr. Smith’s assessment, I credit his opinion \nas it was initially relayed in the clinic notes and then again confirmed through subsequent \ncommunication with the respondents. \nJust over seven years later, on 14 November 2024, the claimant obtained a contrary \nopinion from Dr. Garretson as to her condition in 2017. That opinion was appropriately \npresented as an evaluation based only on the records that were provided to the reviewer. \nDr. Garretson agrees that because the claimant’s records show that “she has no cruciate \nlaxity and she has good stability in her knee, therefore she does not qualify for a diagnosis-\nbased impairment.” He supposes, however, that because Dr. Smith encouraged continued \nquad and hamstring strengthening, the claimant likely experienced muscle atrophy that \nwould have entitled her to an eight percent (8%) impairment rating to her lower extremity. \nThat is notwithstanding his acknowledgement that the record does not contain any \ncomparative muscle girth measurements to support that determination. I find this opinion \nto be speculative and do not assign it greater weight than Dr. Smith’s contemporaneous \nopinion on the claimant’s condition at the time of her release from care. \nThe claimant, for her part, testified that she recalled having a noticeable muscle \ngirth deficit at the time of her release. She provided no contemporaneous documentary \nevidence, however, to support that recollection. I find her recollection of her own lay \n\nHEITMAN (FORMERLY COONEY)- G702350 \n13 \n \nassessment of her condition in 2017, which stands apart from the documented medical \nobservations at the time, to be of minimal evidentiary weight. \nAccordingly, I find that the claimant has failed to prove by a preponderance of the \nevidence that she is entitled to PPD benefits associated with her compensable left knee \ninjury. \nB. THE CLAIMANT IS NOT ENTITLED TO THE COST OF THE \nIMPAIRMENT EVALUATION LETTER. \n \nAn employer shall promptly provide for an injured employee such medical treatment \nas may be reasonably necessary in connection with the injury received by the employee. \nArk. Code Ann. § 11-9-508(a). The claimant bears the burden of proving that she is entitled \nto additional medical treatment. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d \n543 (1999). What constitutes reasonable and necessary medical treatment is a question of \nfact for the Commission. White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d \n396 (2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n Here, the claimant sought an opinion from an unauthorized provider after already \nreceiving an impairment rating from Dr. Smith, her authorized provider with whom she \nhad maintained a relationship throughout the course of her treatment. The impairment \nopinion provided by FTC in this claim was not based on any actual, in-person evaluation of \nthe claimant. The claimant has failed to prove by a preponderance of the evidence that the \nevaluation services and the associated costs are reasonable or necessary in relation to the \nclaimant’s condition or treatment. Her request for the respondents to be held liable for the \ncosts associated with that report is denied, accordingly. \n C. THE CLAIMANT IS NOT ENTITLED TO AN ATTORNEY’S FEE. \n Because the claimant failed to meet her burden on the claims above that might \nprovide for an attorney’s fee, her claim for a fee must also fail. \n\nHEITMAN (FORMERLY COONEY)- G702350 \n14 \n \nCONCLUSION \n Because the claimant failed to meet her burden of proof on any of the issues \npresented in this matter, this claim for additional benefits is DENIED AND DISMISSED. \n IT IS SO ORDERED. \n       ______________________________________ \n       JayO. Howe \n       Administrative Law Judge","textLength":25559,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM No G702350 NANCY HEITMAN (FORMERLY COONEY), EMPLOYEE CLAIMANT vs. ARKANSAS DEPARTMENT OF CORRECTION (McPHERSON UNIT), EMPLOYER RESPONDENT No 1 PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT No 1 DEATH & PERMANENT TOTAL DISABILTY RESPONDENT No 2 TRUST FUND OPIN...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:3","denied:8"],"injuryKeywords":["knee","back","sprain"],"fetchedAt":"2026-05-19T22:42:30.645Z"},{"id":"alj-H305143-2025-03-10","awccNumber":"H305143","decisionDate":"2025-03-10","decisionYear":2025,"opinionType":"alj","claimantName":"Tracey Ford","employerName":"Radius Aerospace, Inc","title":"FORD VS. RADIUS AEROSPACE, INC. AWCC# H305143 March 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FORD_TRACEY_H305143_20250310.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FORD_TRACEY_H305143_20250310.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H305143 \n \n \nTRACEY J. FORD,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nRADIUS AEROSPACE, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nSTARR SPECIALITY INS. CO./ \nSEDGWICK CLAIMS MG’T SERVICES, INC. \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED MARCH 10, 2025 \n \n \nHearing conducted on Friday, March 7, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Hot Springs, \nGarland County, Arkansas. \n \nThe claimant, Ms. Tracey J. Ford, pro se, of Hot Springs, Garland County, Arkansas, failed \nand/or refused to appear at the hearing.  \n \nThe respondents were represented by the Honorable Kevin J. Staten, The Laser Law Firm, Little \nRock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Friday, March 7, 2025, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark. Code  Ann. §  11-9-702(a)(4)  (2025 Lexis \nReplacement) and Commission Rule 099.13 (2025 Lexis Replacement). \n          The claimant herein previously was represented by counsel. By unanimous order filed June \n25,  2024, the  Full  Commission  granted  the claimant’s counsel’s request to withdraw as her \nattorney of record. Thereafter on November 13, 2024, the respondents’ attorney filed the subject \nmotion to dismiss for lack of prosecution (MTD). (Respondents’ Exhibit 1 at ???). In compliance \n\nTracey J. Ford, AWCC No. H305143 \n2 \n \nwith the applicable law the claimant was provided due and legal notice of the respondents’ MTD \nas well as the date, time, and location of the subject hearing by United States Postal Service (USPS) \nFirst Class Mail, Certified, Return Receipt Requested, which she received on November 18, 2024. \n(Commission Exhibit 1). The claimant did not respond in writing to the respondents’ motion in \nany way, and she failed and/or refused to appear at the subject hearing. \n       The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n       Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion \nto dismiss. Rather than recite a detailed analysis of the record, suffice it to say the preponderance \nof  the  evidence  introduced  at  the  hearing and  contained  in  the  record conclusively  reveals  the \nclaimant has failed and/or refused to prosecute her claim at this time. \n     Therefore, after a thorough consideration of the facts, issues, the applicable law, representations \nof counsel, and other relevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed due and legal notice of the respondents’ MTD without prejudice \nfiled November  13,  2024,  as  well  as notice  of the date, time,  and  place of  the  subject \nhearing, the claimant failed and/or refused to respond in any way to the respondents’ MTD, \nand she failed and/or refused to appear at the hearing. Therefore, the claimant is deemed to \nhave waived her right to a hearing on the respondents’ MTD. \n \n3. The respondents’ MTD without prejudice filed November 13, 2024, should be and hereby \nis GRANTED; and this claim is dismissed without prejudice to its refiling pursuant to the \n\nTracey J. Ford, AWCC No. H305143 \n3 \n \ndeadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and Commission \nRule 099.13. \n \n      This Order shall not be construed to prohibit the claimant, her attorney, any attorney she may \nretain in the future, or anyone acting legally and on her behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n      If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n      IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nTracey J. Ford, AWCC No. H305143 \n4","textLength":5145,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305143 TRACEY J. FORD, EMPLOYEE CLAIMANT RADIUS AEROSPACE, INC., EMPLOYER RESPONDENT STARR SPECIALITY INS. CO./ SEDGWICK CLAIMS MG’T SERVICES, INC. CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED MARCH 10, 2025","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:42:26.492Z"},{"id":"full_commission-H304951-2025-03-07","awccNumber":"H304951","decisionDate":"2025-03-07","decisionYear":2025,"opinionType":"full_commission","claimantName":"Robert Herdison","employerName":"Drivers Select, Inc","title":"HERDISON VS. DRIVERS SELECT, INC. AWCC# H304951 March 7, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Herdison_Robert_H304951_20250307.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Herdison_Robert_H304951_20250307.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H304951 \n \nROBERT HERDISON, EMPLOYEE    CLAIMANT \n \n \nDRIVERS SELECT, INC., EMPLOYER                                 RESPONDENT \n \n \nQBE INSURANCE CORPORATION/ \nSEDGWICK CLAIMS MANAGEMENT  \nSERVICES, INC., CARRIER/TPA                                          RESPONDENT \n \n \nOPINION FILED MARCH 7, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed October 2, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-\nhearing conference conducted on April 29, 2024, and \ncontained in a Pre-hearing Order filed April 30, 2024, \nare hereby accepted as fact. \n  \n\nHerdison-H304951    2  \n \n \n2. The claimant has failed to prove by a preponderance of \nthe evidence that he sustained compensable injuries to \nhis cervical, thoracic and lumbar spine on or about \nJune 22, 2023.  \n \n3. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to medical treatment for \nhis alleged compensable cervical, thoracic and lumbar \nspine injuries.  \n \n4. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to temporary total \ndisability benefits from June 23, 2023, to a date yet to \nbe determined.  \n \n5. The claimant has failed to prove by a preponderance of \nthe evidence that his attorney is entitled to an \nattorney’s fee in this matter. \n \n We have carefully conducted a de novo review of the entire record \nherein, and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence the findings of fact made by the Administrative Law Judge \nare correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the October 2, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n  \n\nHerdison-H304951    3  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n The Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant failed to prove by a preponderance of the evidence that he \nsustained compensable injuries to his cervical, thoracic, and lumbar spine on or \nabout June 22, 2023, that the Claimant failed to prove by a preponderance of \nthe evidence that he is entitled to medical treatment for his alleged injuries, and \nthat the Claimant failed to prove by a preponderance of the evidence that he is \nentitled to temporary total disability benefits from June 23, 2023, to a date yet to \nbe determined.  Lastly, the ALJ found that the Claimant failed to prove by a \npreponderance of the evidence that his attorney is entitled to an attorney’s fee \nin this matter.  After conducting a thorough review of the record, I would reverse \nthe ALJ’s findings as to the Claimant’s compensable injuries to his cervical, \nthoracic, and lumbar spine and find that he is entitled to medical treatment for \n\nHerdison-H304951    4  \n \n \nhis compensable injuries, and entitled to temporary total disability from \nNovember 18, 2023 to a date yet to be determined.  \n1. Claimant has suffered compensable work-related injuries to his \ncervical, thoracic and lumbar spine on or about June 22, 2023.  \nTo establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence.  \nThe central question in this case is whether the Claimant’s injury \narose in the course and scope of his employment with the Respondent.  A \ncompensable injury does not include an injury “inflicted upon the employee \nat a time when employment services were not being performed.”  Ark. Code \nAnn. § 11-9-102(4)(B)(iii).  An employee is performing employment services \nwhen he is doing something that is generally required by his employer.  \nDairy Farmers of America v. Coker, 98 Ark. App. 400, 255 S.W.3d 905.  \nThe Arkansas Court of Appeals uses the same test to determine whether \nan employee is performing employment services as it does when \n\nHerdison-H304951    5  \n \n \ndetermining whether an employee is acting within the course and scope of \nemployment.  Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 \n(2002).  The test is whether the injury occurred within the time and space \nboundaries of the employment when the employee was carrying out the \nemployer’s purpose directly or indirectly.  Id.  \nAn employee traveling to and from the workplace is generally said \nnot to be acting within the course and scope of employment.  Olsten \nKimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997).  \nThis “going and coming” rule ordinarily precludes recovery for an injury \nsustained while the employee’s going to or coming from his place of \nemployment. Id.  The rationale behind this rule is that an employee is not \nwithin the course of employment while traveling to or from his job. Id.  \nHowever, an exception to this rule exists where the employee must travel \nfrom jobsite to jobsite, whether or not he is paid for that travel time. Id.  The \nrationale behind this exception is that such travel is an integral part of the \njob itself. Id.  Even where a Claimant is not performing his primary \nemployment activity, an injury may be deemed compensable if the Claimant \nis fulfilling a duty placed upon him by their employer.  Moncus v. Billingsley \nLogging, 366 Ark. 383, 235 S.W.3d 877 (2006).  \nRespondent employee, Abigail Robertson testified that she texted \nClaimant and another Respondent employee about a job to pick-up a truck \n\nHerdison-H304951    6  \n \n \nat MHC Kenworth in Van Buren and drive it to Rogers on June 22, 2023.  \nThe Claimant had the option to take his personal vehicle to Van Buren and \nhave another employee carpool with him, or vice versa.  The Claimant and \nanother employee decided to take the other employee’s vehicle.  Claimant \nand the other employee travelled from Fort Smith to Van Buren, picked the \ntruck up and drove it to Rogers.  After completing the Respondent’s jobs, \nClaimant testified that they then travelled back to the Respondent’s offices \nin Fort Smith to check-in with their supervisor, return paperwork, and pick-\nup his personal vehicle to return home.  While travelling back to the \nRespondent’s Fort Smith office the Claimant and the other employee of \nRespondent were in a car accident. \nClaimant’s testimony that he was travelling back to the Respondent’s \noffices in Fort Smith to check-in with his supervisor, return paperwork and \npick up his personal vehicle is credible as he may have genuinely believed \nthat was required for this specific job as there were no clearly established \nprocedures by Respondent’s witnesses’ own testimony.  Further, it is \napparent that traveling was an integral part of the Claimant’s position with \nthe Respondent at the time of the accident.  See Olsten v. Pettey, 328 Ark. \n381, 944 (1997).  While the necessity of this trip is unclear, Claimant was \nclearly fulfilling a duty placed upon him by the Respondent at the time of his \naccident as he was generally required to return paperwork and check-in \n\nHerdison-H304951    7  \n \n \nwith his supervisor at the end of a job.  Respondent employee Jennifer \nPowell testified that not all jobs start and stop at the Respondent’s Fort \nSmith office and that every bid/job is different.  Based on the testimony of \nboth Respondent witnesses, I find it credible that the Claimant was \nreturning to the Respondent’s offices in Fort Smith as generally required \nand not prohibited by the Respondent, and therefore performing \nemployment services.  Based upon the credible evidence, I find that the \nClaimant was performing employment services at the time of the accident \nand was within the course and scope of his employment when the accident \noccurred.  \nNext, the Claimant must prove by a preponderance of the evidence \nthat the injuries he suffered caused internal or external harm to the body \nwhich required medical services, that the medical evidence is supported by \nobjective findings establishing the injury; and that the injury was caused by \na specific and identifiable time and place of occurrence.  On June 22, 2023, \nClaimant sought medical treatment for his injuries related to the motor \nvehicle accident.  Claimant stated that he had complaints of pain to his \nhead, cervical neck pain and thoracic pain. X-Rays were obtained, but no \nfractures or dislocations were apparent.  Claimant then followed up with Dr. \nChester Carlson who diagnosed the Claimant with a sprain of his cervical, \nthoracic and lumbar spine and muscle spasms at each of these three areas \n\nHerdison-H304951    8  \n \n \nof the spine.  Dr. Carlson recommended and performed several trigger-\npoint injections for these muscle spasms and pain associated with the \nClaimant’s sprain of his cervical, thoracic and lumbar spine.  On July 24, \n2023, Claimant underwent a Cervical, Lumbar, and Thoracic Spine MRI \nwhich showed disc bulges and spurring of the C4-C5, C5-C6, C6-C7, L3-\nL4, L4-L5, T7-T8, T8-T9, and T9-T10.  Claimant continued treatment with \nDr. Carlson and on October 4, 2023, Dr. Carlson referred Claimant to \nneurologist Dr. Sean Moore stating:  \nI will release this patient from my care today.  The patient has \nreached the maximum medical benefit of my treatment plan at this \ntime.  However, this patient still has ongoing pain due to this accident \nand will likely require medical treatment for this problem in the future. \n \nOn October 24, 2023, Claimant was seen by Dr. Moore who \nevaluated the MRI from July 24, 2023, stating:  \nThe patient has an MRI of the cervical, lumbar and thoracic spine \nfrom 7/24/23. The thoracic MRI shows small disc bulges at T7-8, T8-\n9, and T9-10 with minimal central stenosis.  There is mild neural \nforaminal stenosis at T8-9.  There is no abnormal cord signal on T2-\nweighted images.  The cervical MRI shows a mild disc bulge at C4-5. \nThere is a central disc herniation at C5-6 and left paracentral \nherniation at C6-7.  There is minimal stenosis at C4-5.  There is \nsevere canal stenosis at C5-6 with abnormal T2-weighted signal \nwithin the spinal cord.  There is moderate central and left neural \nforaminal stenosis at C6-7.  The alignment is otherwise normal.  The \nlumbar MRI shows spondylolisthesis at L3-4.  There is moderate \ncentral and neural foraminal stenosis at this segment.  There is mild \ndisc bulging at L4-5 with minimal stenosis.  There is mild disc bulging \nat L5-S1 without significant stenosis.  There is mild facet arthropathy.  \nThe alignment is otherwise normal.  \n\nHerdison-H304951    9  \n \n \nDr. Moore then diagnosed Claimant with cervical stenosis/HNP with \nsevere radiculopathy and myelopathy, lumbar stenosis/spondylolisthesis \nwith radiculopathy, neurogenic claudication, as a result of the June 22, \n2023 motor vehicle accident.  Dr. Moore then recommended surgical \nintervention for the Claimant’s cervical stenosis secondary to his severe \nand progressive neurologic deficits.  On November 18, 2023, Claimant \nreceived an anterior cervical microdiscectomy and fusion at C5-6 and C6-7 \nfor spinal cord decompression.  At stated earlier, Claimant also received \ninjections for muscle spasms at the thoracic and lumbar levels of his spine.  \nBased upon the credible proof in the record, I find that Claimant sustained \ncompensable injuries to his cervical, thoracic and lumbar spine as a result \nof his June 22, 2023 work accident.  \n2. The Claimant is entitled to medical treatment for his compensable \nwork-related injuries to his cervical, thoracic, and lumbar spine.  \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).  What constitutes reasonable and necessary medical \ntreatment is a question of fact for the Commission.  White Consolidated \n\nHerdison-H304951    10  \n \n \nIndus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  \nThe Arkansas Court of Appeals has held a claimant may be entitled \nto additional medical treatment even after the healing period has ended, if \nsaid treatment is geared toward management of the injury.  See Patchell v. \nWal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); Artex \nHydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  \nSuch services can include those for the purpose of diagnosing the nature \nand extent of the compensable injury; reducing or alleviating symptoms \nresulting from the compensable injury; maintaining the level of healing \nachieved; or preventing further deterioration of the damage produced by the \ncompensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 \nS.W.2d 593 (1995); Artex, supra. \n In the present case, Claimant sustained compensable injuries \nto his cervical, thoracic and lumbar spine.  Diagnostic testing performed on \nJuly 24, 2023, demonstrated objective problems at the cervical, thoracic, \nand lumbar areas of the Claimant’s spine.  Muscle spasms were also \nobserved and treated in the Claimant’s upper and mid-back areas.  The \nClaimant also reported suffering bowel incontinence and radiculopathy.  \n\nHerdison-H304951    11  \n \n \nOn October 4, 2023, Dr. Chester Carlson placed Claimant at \nmaximum medical improvement stating:  \nI will release this patient from my care today.  The patient has \nreached the maximum medical benefit of my treatment plan at this \ntime.  However, this patient still has ongoing pain due to his accident \nand will likely require medical treatment for this problem in the future.  \nDr. Carlson then referred the Claimant to neurosurgeon Dr. Shawn \nMoore for evaluation and treatment.  Claimant was seen by Dr. Moore on \nOctober 24, 2023.  Dr. Moore recommended surgical intervention for his \ncervical stenosis secondary to his severe and progressive neurologic \ndeficits.  Claimant underwent an anterior cervical microdiscectomy and \nfusion at C5-6 and C6-7 for spinal cord decompression for his compensable \ncervical injury on November 18, 2023.  \n Based upon the credible evidence, I find that the Claimant is \nentitled to reasonable and necessary medical treatment for the \ncompensable injuries to his spine including surgery for his compensable \ncervical injury.  \n3. Claimant is entitled to temporary total disability benefits from \nNovember 18, 2023 to a date yet to be determined.  \nTemporary total disability benefits are appropriate where the \nemployee remains in the healing period and is totally incapacitated from \n\nHerdison-H304951    12  \n \n \nearning wages.  Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981). \nClaimant underwent surgery for his compensable cervical injury on \nNovember 18, 2023.  While no explicit medical testimony regarding the \nclaimant’s ability to work is presented within the record, it is certainly more \nprobable that such an invasive surgery would warrant time off work where \nClaimant is totally incapacitated from earning wages.  I find that Claimant is \nentitled to temporary total disability benefits from November 18, 2023, until \nsuch a date as the Claimant is released from care from his authorized \nphysician. \nFor the reasons stated above, I respectfully dissent. \n                                                                                                \n______________________________                                                            \nM. SCOTT WILLHITE, Commissioner","textLength":16945,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H304951 ROBERT HERDISON, EMPLOYEE CLAIMANT DRIVERS SELECT, INC., EMPLOYER RESPONDENT QBE INSURANCE CORPORATION/ SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED MARCH 7, 2025 Upon review before t...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["cervical","thoracic","lumbar","back","neck","sprain"],"fetchedAt":"2026-05-19T22:29:44.490Z"},{"id":"alj-H402853-2025-03-06","awccNumber":"H402853","decisionDate":"2025-03-06","decisionYear":2025,"opinionType":"alj","claimantName":"Cheryl Humphrey","employerName":"Healthy Connections, Inc","title":"HUMPHREY VS. HEALTHY CONNECTIONS, INC. AWCC# H402853 March 06, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HUMPHREY_CHERYL_H402853_20250306.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HUMPHREY_CHERYL_H402853_20250306.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H402853 \n \nCHERYL L. HUMPHREY, EMPLOYEE      CLAIMANT \n \nHEALTHY CONNECTIONS, INC., EMPLOYER         RESPONDENT \n \nUNION INSURANCE OF PROVIDENCE/ \nEMPLOYERS MUTUAL CASUALTY CO., CARRIER/TPA        RESPONDENT \n  \n \n \nOPINION FILED 6 MARCH 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 5 March 2025 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nNewkirk & Jones, Mr. David Jones, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 5 March 2025. This case relates to an alleged workplace injury \nsustained on or about 6 March 2024.  \nThe claimant filed a Form AR-C on 30 April 2024, stating that she fell on a metal \nramp. A First Report of Injury was filed on 6 May 2024, alleging unknown injuries to \nmultiple body parts. The respondents subsequently filed a Form AR-2 denying the claim. \nOn 21 May 2024, the respondents served discovery on the claimant. [See Resp. Ex. \nNo 1.] The claimant failed to respond to those requests. Subsequently, on 26 December \n2024, the respondents filed the immediate motion seeking a dismissal of the claim for want \nof prosecution, citing ACA §§ 11-9-702(a)(4), (d) and Commission Rule 099.13. Therein, they \nargued that more than six months had passed without a bona fide request for a hearing on \n\nHUMPHREY- H402853 \n2 \n \nan issue ripe for litigation. They also argued that the claimant did not respond to their \ndiscovery requests.  \n Notice of the respondents’ motion was sent to the claimant, consistent with AWCC \npractices, via First Class Mail and Certified Mail, on 6 January 2025. After no response or \nobjection was received by the Commission, a notice of a hearing on that motion was sent in \nthe same fashion on 6 February 2025. When mailings are returned to the AWCC as not \naccepted or undeliverable, those mailings are appended to the claim’s file. This file contains \nthe return of only the certified letter from 6 January 2025. \nThe respondents appeared on 5 March 2025, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no bona fide request for a hearing on an issue ripe for litigation in this claim in the \nrelevant time preceding the filing of their motion. The claimant did not appear to resist the \ndismissal of his claim. The respondents offered a number of documents into the record \nwhich, collectively, were admitted as Respondents’ Exhibit No 1. The exhibit included \ntwenty-five (25) pages of records. Contained therein are correspondence, forms, and filings \nrelated to the claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel; \nI find (1) that the parties were provided with reasonable notice of the respondents’ Motion \nto Dismiss and the hearing, (2) that the respondents’ Motion to Dismiss should be granted, \nand (3) that this matter should be dismissed without prejudice. \n \n \n\nHUMPHREY- H402853 \n3 \n \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3622,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H402853 CHERYL L. HUMPHREY, EMPLOYEE CLAIMANT HEALTHY CONNECTIONS, INC., EMPLOYER RESPONDENT UNION INSURANCE OF PROVIDENCE/ EMPLOYERS MUTUAL CASUALTY CO., CARRIER/TPA RESPONDENT OPINION FILED 6 MARCH 2025 Heard before Arkansas Workers’ Compensation Commi...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:42:24.410Z"},{"id":"full_commission-H206949-2025-03-05","awccNumber":"H206949","decisionDate":"2025-03-05","decisionYear":2025,"opinionType":"full_commission","claimantName":"Glenda Lurry","employerName":"Coca-Cola Consolidated, Inc","title":"LURRY VS. COCA-COLA CONSOLIDATED, INC. AWCC# H206949 March 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Lurry_Glenda_H206949_20250305.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Lurry_Glenda_H206949_20250305.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H206949 \n \nGLENDA LURRY, \nEMPLOYEE \n \nCLAIMANT \nCOCA-COLA CONSOLIDATED, INC.,  \nEMPLOYER \n \nRESPONDENT \nINDEMNITY INSURANCE COMPANY OF \nNORTH AMERICA, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 5, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant is Pro Se. \n \nRespondents represented by the HONORABLE RICK BEHRING, JR., \nAttorney at Law, Little Rock, Arkansas. \n \n  ORDER \nThe claimant has filed a “Motion for Reconsideration for Glenda \nLurry.”  The Full Commission denies the motion.  The parties stipulated that \nthe claimant “sustained a compensable injury to her lower back” on July 7, \n2022.  The parties stipulated that the respondents “accepted this claim as a \nmedical-only one and paid benefits pursuant thereto.”   \n A pre-hearing order was filed on August 28, 2023.  The claimant \ncontended that she was “entitled to additional benefits in connection with \nher stipulated compensable lower back injury.”  The respondents \ncontended, among other things, that they had “paid for all reasonable and \nnecessary medical treatment.”  The respondents contended that they were \nnot responsible for any temporary total disability benefits.   \n\nLURRY - H206949  2\n  \n \n \n After a hearing, an administrative law judge filed an opinion on \nJanuary 5, 2024.  The administrative law judge found that the claimant did \nnot prove she was entitled to additional treatment, and that the claimant did \nnot prove she was entitled to temporary total disability benefits.  The \nclaimant filed a timely notice of appeal to the Full Commission.   \n The Full Commission filed an opinion on September 19, 2024.  A \nmajority of the Full Commission affirmed and adopted the administrative law \njudge’s decision.  The Full Commission’s opinion was sent to the claimant \non September 19, 2024 by “CERTIFIED MAIL – RETURN RECEIPT \nREQUESTED.”  On October 11, 2024, the United States Postal Service \ndesignated the Certified Mail as “RETURN TO SENDER UNCLAIMED \nUNABLE TO FORWARD.”  The Certified Mail was marked “RECEIVED” by \nthe Commission on October 16, 2024.   \n Our file indicates that the claimant contacted the Commission’s Legal \nAdvisor Division on October 22, 2024.  A Legal Advisor noted on that date, \n“Expl the Comm. opinion and how to req’t appeal if she decides to pursue \nclaim further.”  The Legal Advisor further noted on October 29, 2024, \n“Discussed how to req’t appeal.  She said her neighbor had her opinion and \nbrought it to her.  Expl process and what has to be paid when going through \nprocess with ct of appeals.  She said she had new med. evid.  That was \n\nLURRY - H206949  3\n  \n \n \navail. at time of dec.  Expl not likely ct of appeals would allow but could ask \nfor it.”   \n Our file indicates that the claimant received the Full Commission’s \nSeptember 19, 2024 opinion no earlier than October 21, 2024.  The \nclaimant asserts that she received the Full Commission’s opinion from a \nneighbor on October 21, 2024.  The claimant’s “Motion for \nReconsideration,” received by the Commission on November 1, 2024, was \ntherefore timely filed in accordance with Ark. Code Ann. §11-9-\n711(b)(1)(Repl. 2012).  The claimant seeks to introduce into evidence the \nrecord of an MRI scan performed at Regional One Health on July 15, 2024 \nin addition to accompanying correspondence dated July 19, 2024.  The \nfollowing are prerequisites by the Full Commission on proffer to present \nnewly-discovered evidence:  (1)  the newly discovered evidence must be \nrelevant; (2)  it must not be cumulative; (3)  it must change the result; and \n(4)  the party seeking to introduce the evidence must be diligent.  Quinn v. \nWebb Wheel, 52 Ark. App. 208, 915 S.W.2d 740 (1996), citing Haygood v. \nBelcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982).   \n In the present matter, the Full Commission finds that the newly-\ndiscovered evidence proffered by the claimant is not relevant and would not \nchange the result of her case regarding the issues of additional medical \ntreatment and temporary total disability benefits.  We therefore deny the \n\nLURRY - H206949  4\n  \n \n \nclaimant’s “Motion for Reconsideration.”  The claimant to date has not \nindicated that she intends to appeal to the Arkansas Court of Appeals.  If \nthe claimant chooses to appeal to the Arkansas Court of Appeals, the \nappeal will be governed by Ark. Code Ann. §11-9-711(b)(Repl. 2012) and \nthe Arkansas Rules of Appellate Procedure – Civil.   \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton concurs in part and dissents in part. \n \nCONCURRING AND DISSENTING OPINION \n  I concur with the Majority’s findings that the claimant’s Motion for \nReconsideration should be denied since the newly discovered evidence \nproffered by the claimant is not relevant and would not change the result of \nher case regarding the issues of additional medical treatment and \ntemporary total disability benefits.  However, I dissent from the Majority’s \nopinion that the claimant’s Motion for Reconsideration was timely filed.    \nArk. R. Civ. P. 4(1) provides that: \n \nUpon timely filing in the circuit \ncourt of a motion for judgment \nnotwithstanding the verdict under \nRule 50(b) of the Arkansas Rules \n\nLURRY - H206949  5\n  \n \n \nof Civil Procedure, a motion to \namend the court's findings of fact \nor to make additional findings \nunder Rule 52(b), a motion for a \nnew trial under Rule 59(a), or any \nother motion to vacate, alter, or \namend the judgment made no later \nthan 10 days after entry of \njudgment, the time for filing a \nnotice of appeal shall be extended \nfor all parties. The notice of appeal \nshall be filed within thirty (30) days \nfrom entry of the order disposing of \nthe last motion outstanding. \nHowever, if the circuit court  \nneither grants nor denies the \nmotion within thirty (30) days of its \nfiling, the motion shall be deemed \ndenied by operation of law as of \nthe thirtieth day, and the notice of \nappeal shall be filed within thirty \n(30) days from that date. \n \nEven conceding to the Majority’s finding that the claimant received \nthe Full Commission’s Opinion on October 21, 2024, the claimant did not \nfile her Motion for Reconsideration with the Commission until November 1, \n2024, eleven (11) days after receiving the order, and should be denied \nsince it was not timely filed within ten (10) days.   \nThe Court of Appeals has ruled that Ark. R. App. P. Civ. 4(b)(1) \napplies to appeals from decisions of the Arkansas Workers’ Compensation. \nPeco Foods, Inc. v. Johnson, 687 S.W.3d 840 (Ark. Ct. App. 2024). \n\nLURRY - H206949  6\n  \n \n \nSince the Motion for Consideration was not timely filed, the time for \nfiling a notice of appeal was not extended, and the claimant cannot now file \na notice of appeal to the Court of Appeals.  \nFor the reasons stated above, I concur, in part, and dissent, in part. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":7149,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H206949 GLENDA LURRY, EMPLOYEE CLAIMANT COCA-COLA CONSOLIDATED, INC., EMPLOYER RESPONDENT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 5, 2025","outcome":"denied","outcomeKeywords":["denied:4"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:44.452Z"},{"id":"full_commission-G905912-2025-03-05","awccNumber":"G905912","decisionDate":"2025-03-05","decisionYear":2025,"opinionType":"full_commission","claimantName":"Gregory Patterson","employerName":"City Of Monette","title":"PATTERSON VS. CITY OF MONETTE AWCC# G905912 March 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Patterson_Gregory_G905912_20250305.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Patterson_Gregory_G905912_20250305.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G905912 \n \nGREGORY PATTERSON, \nEMPLOYEE \n \nCLAIMANT \nCITY OF MONETTE,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS MUNICIPAL LEAGUE, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 5, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MATTHEW J. KETCHAM, \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE MARY K. EDWARDS, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nSeptember 5, 2024.  The administrative law judge found that the claimant \nproved he was entitled to reasonably necessary medical treatment “for his \nheadaches and seizures.”  The Full Commission finds that the medical \ntreatment of record provided to the claimant after January 25, 2022 was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  The claimant proved that his headaches and seizures \nwere a natural consequence of the compensable head injury sustained by \nthe claimant.   \n\nPATTERSON - G905912  2\n  \n \n \nI.  HISTORY \n Gregory Patterson, II, now age 24, testified that he had been \nemployed with the respondents, City of Monette.  The parties stipulated that \nthe employment relationship existed on or about September 10, 2019.  The \nclaimant’s testimony indicated that he was a passenger in an All-Terrain \nVehicle being driven by a co-worker.  The claimant testified, “And then the \nnext thing I know I remember waking up in the hospital.\"  The parties \nstipulated that the claimant “sustained a compensable head injury.”  The \nclaimant testified on direct examination: \nQ.  What was your understanding of the injuries that you \nreceived when you were ejected from the ATV? \nA.  That I hit my head.  I had a couple of brain bleeds and \nfractured, some type of fracture on the temporal, temple lobe, \nwhatever that’s called up there.   \n \n According to the record, the claimant was admitted to Regional One \nHealth on September 10, 2019.  It was noted at that time, “18 yo M s/p ATV \naccident w/L T aSDH/ctx.”  A CT of the claimant’s brain and head was \ntaken on September 10, 2019 with the following impression: \n1. Multifocal intraparenchymal hemorrhage within the left \nlateral temporal lobe.   \n2. Subarachnoid hemorrhage within the left temporal lobe.   \n \nA CT Maxillofacial w/o Contrast was also taken on September 10, \n2019 with the impression, “1.  Suspected subtle nondepressed fracture of \nthe left temporal and parietal bone[.]”  \n\nPATTERSON - G905912  3\n  \n \n \nThe claimant was discharged from Regional One Health on \nSeptember 12, 2019: \n18 year-old gentleman s/p ATV accident on 9/10/19.  GCS9 \non arrival and intubated for combativeness.  Injuries on CTH \ninclude multifocal intraparenchymal hemorrhage within the left \nlateral temporal lobe and subarachnoid hemorrhage within the \nleft temporal lobe.  Non-operative per neurosurgery.  2\nnd\n \nrepeat CTH showed no evolution of injury.  Extubated on 9/11, \nGC15....Evaluated by PT, OT, Speech on 9/12.  All \nrecommended outpatient therapy.  Discharged to home with \ninstructions to follow-up in neurosurgery clinic in 1 month with \nnew CTH.   \n \n The Discharge Diagnosis on September 12, 2019 was “1.  Head \ninjury, 09/10/2019.  2.  Intraparenchymal hemorrhage of brain, 09/10/2019.”   \n An occupational therapist noted on September 30, 2019, “To whom it \nmay concern, Gregory Patterson, has attended a total of 5 occupational \ntherapy visits with his last visit being 9/26/19.  He reported 0/10 pain pre \nand post session last visit.  He has progressed very well while attending.  \nFunctional activities have been implemented to facilitate dynamic \nmovement, cognitive exercises, processing skills, attention to task, and fine \nmotor activities.  Gregory initially demonstrated slight difficulty completing \nwriting tasks, and maintaining attention to task but this has greatly improved \nsince start of care.  Gregory established a goal to return to school as soon \nas he can to resume his role as a high school student.” \n\nPATTERSON - G905912  4\n  \n \n \n A CT of the claimant’s head was taken on October 1, 2019 with the \nimpression, “Possible minimal residual left temporal lobe blood products.  \nNo mass effect, edema, or additional intracranial abnormalities noted.”   \n Dr. John D. Brophy reported on October 1, 2019: \nMr. Gregory Patterson is an 18-year-old white male seen in \nconsultation at the request of Workers’ Compensation for \nevaluation after sustaining a closed head injury with \nintracranial hemorrhage.  He was doing well until 10 \nSeptember when he was ejected from a work ATV, striking his \nhead on a sidewalk.  He was apparently combative at the \nscene and sedated, intubated and evacuated by air to The \nMed.  A head CT demonstrated a left temporal intracranial \nhemorrhage and subarachnoid hemorrhage.  He was \nextubated and discharged after approximately 48 hours in \ngood condition.  Mr. Patterson has remained sedentary at \nhome since his discharge.  Currently, he reports that he is \ndoing quite well without headache, visual disturbance, \nweakness, paresthesias or memory difficulty.... \nHead CT dated 1 October, 2019 demonstrates resolution of \nthe left temporal intracranial hemorrhage and subarachnoid \nhemorrhage.  There is no masses effect or hydrocephalus.... \nThe results of the head CT from this afternoon and clinical \nsituation were reviewed in detail with Mr. Patterson and his \nmother.  He has requested clearance to return to school \ntomorrow.  He will undergo follow-up evaluation in \napproximately three weeks.  He is cleared to return to work at \nsedentary duties only.  He is cleared to drive a motor vehicle \nwhen cleared by his parents.  We discussed the option of \nnotifying our office if he is having problems tolerating his \nschool work.   \n \n Dr. Brophy’s impression was “Doing well status post closed head \ninjury with left temporal hemorrhage.\"     \n A speech therapist noted on October 6, 2019, “Mr. Gregory \nPatterson, 18 years old, has attended 2/12 therapy sessions for speech \n\nPATTERSON - G905912  5\n  \n \n \ntherapy services following traumatic brain injury and admit to Region One.  \nPt was released and referred to SBRMC outpatient for PT, OT, and ST.  Pt \nwas evaluated using the Scales of Cognitive Ability for Traumatic Brain \nInjury (SCATBI).  Pt was noted to be [having] most difficulty with Recall \nsubtest, demonstrating a mild deficit, evident by word generation, delayed \nrecall of word strings, and recall of oral paragraphs....Pt is recommended to \ncontinue with speech therapy at this time.” \n Dr. Brophy noted on October 22, 2019, “Mr. Patterson is an 18-year-\nold high school student six weeks status post closed head injury with \nsubarachnoid hemorrhage.  He has attempted to return to school where he \nis having increased headaches using his computer.  He is having no \ndifficulty driving or dating.”  Dr. Brophy’s impression was “Residual \nsymptoms status post closed head injury, slowly improving.” \n Dr. Brophy’s impression on November 19, 2019 was “Residual \nsymptoms status post closed head injury including headache and fatigue.”     \n The claimant sought emergency treatment on December 19, 2019 \nfor complaints of headaches.  A CT of the claimant’s head was taken on \nDecember 19, 2019 with the impression, “Noncontrast head CT without \nevidence of acute intracranial hemorrhage.”  It was noted, “We will give him \nToradol, Benadryl and Compazine....Headache has resolved.”   \n\nPATTERSON - G905912  6\n  \n \n \n Dr. Brophy gave the following impression on January 21, 2020:  \n“Headaches improved status post closed head injury.  Plan:  The clinical \nsituation and results of his recent testing were reviewed in detail with Mr. \nPatterson and his family.  We again discussed the potential for continued \ngradual improvement.  He is cleared to return to work at full duty without \nrestriction on 22 January.  He will undergo follow-up evaluation as needed.”   \n The claimant received emergency treatment at St. Bernards Medical \nCenter on August 22, 2020: \nPatient reports that he was in the passenger side of a single \ncab truck that was stopped on the side of the road due to car \ntrouble.  He reports that at approx. 1800 another vehicle going \napprox. 70 mph struck the driver’s side of his truck....He \ndenies LOC....He reports neck, upper to mid back, right \nforearm, and right knee pain.  C-collar placed in triage.... \nPatient did hit his head, has a sore spot to his left forehead.... \n \n The claimant was discharged from St. Bernards on August 23, 2020 \n“with concussion precautions.”  The Clinical Impression was “MVA (motor \nvehicle accident), Concussion.”  The claimant was informed, “Your head CT \nwas normal.”   \n A CT of the claimant’s head was taken on June 25, 2021: \n  Clinical History:  CEREBRAL ANEURYSM.... \nImpression:  Unremarkable noncontrast CT examination of the     \nhead. \n3.  Left sphenoid sinus disease.   \n \nA CT of the claimant’s head was taken on July 29, 2021: \n\nPATTERSON - G905912  7\n  \n \n \nClinical History:  HEADACHE, NAUSEA, VERTIGO, \nDEHYDRATION \n Comparison:  6/25/2021  \nImpression:  Unremarkable noncontrast CT examination of the \nhead.   \n \nThe claimant followed up with Dr. Brophy on September 28, 2021: \nMr. Patterson is a 20-year-old white male undergoing follow-\nup evaluation for recent complaints potentially related to his \nclosed head injury that occurred at work in September 2019.  \nHis CT at the time of injury demonstrated a left temporal \ncontusion and subarachnoid hemorrhage.  These findings \nresolved on follow-up head CT.  By January 2020, his \nheadaches had significantly improved and he was cleared to \nreturn to work at full duty....Currently, his chief complaint is \nfatigue.  He has difficulty sleeping at night.  His family has \nnoted increased issues with his temper, subjective memory \nproblems and judgment issues.  He does not report \nheadaches.   \n \n Dr. Brophy gave the following impression on September 28, 2021:  \n“Subjective cognitive/memory issues status post closed head injury with \nbrain contusion and subarachnoid hemorrhage.  Plan:  Based on the family \ncomplaints of personality changes and cognitive issues, I would suggest \nformal neuropsych evaluation.  He will undergo follow-up evaluation to \nreview these results and we will finalize a treatment plan at that time.”  \n Dr. A.J. Zolten provided a NEUROPSYCHOLOGICAL EVALUATION \non December 9, 2021: \nGreg Patterson is a 21-year-old Caucasian male, with a high \nschool education.  Greg sustained a traumatic brain injury in \nSept. 2019 while working as a landscaper, as a result of an \nATV accident.  Greg sustained a left temporal bone fracture, \nleft parietal bone fracture and both intraparenchymal and \n\nPATTERSON - G905912  8\n  \n \n \nsubarachnoid hemorrhages on the left side.  He was \ntransported to Med One Medical Ctr. In Memphis, where he \nwas evaluated, stabilized and discharged after five days of \ncare....He reports that he is able to perform his duties, but has \noccasional problems with the need to have instructions \nrepeated at times, and he reports occasional sick days \nbecause of headaches.   \nGreg has had headaches and dizziness as a result of his \ninjuries.  He reports that his headaches have generally \nimproved, but there was a period of time in July, 2021, when \nhe had several episodes of dizziness and blackouts when \ngetting out of bed.  This was frequently, and he reports a 15-\nday period when this occurred daily.  This frequency has \nresolved, but he continues to occasionally experience the \nsame positional vertigo.  He continues to have occasional \nheadaches, about once every 3-4 days.  He takes an OTC \nmedication most of the time and this type of medication is \neffective enough to continue and work, but he reports about \ntwo days per month when he will have to take the day off from \nwork.... \n \nImpressions:  1.  Greg Patterson is a 21-year-old male who \nis two years status-post Traumatic Brain Injury (S06.2) who \npresents for an evaluation of residual neurocognitive deficits \nand psychological adjustment.  Neuropsychological testing \nreveals subtle to mild residual auditory/verbal weaknesses \nincluding modestly lower-than-expected core auditory \ncognitive skills (WAIS-4 VCI=83 versus NAART=90), \nparaphasia noted during confrontational naming, and low \naverage FAS verbal fluency.  All of these findings indicate \nfunctional skills in the domains indicated, but all of these \nfindings are mildly weaker-than-expected.  As Greg is now \ntwo years post injury, these problems are likely to be chronic, \nbut I doubt that the problems will interfere with overall \nfunctioning when considering activities for daily living or his \nwork.   \n2.  Memory, motor, visual perceptual, and executive skills \nwere all entirely within the normal limits.   \n \n Dr. Brophy reported on January 25, 2022:   \n\nPATTERSON - G905912  9\n  \n \n \nMr. Patterson returns today to review the results of his recent \nneuropsychological evaluation.  He sustained a closed head \ninjury association with temporal contusion in 2019.  At two \nyears post injury, his family was complaining regarding his \ntemper, memory and judgment.  Mr. Patterson was reporting \nfatigue without headaches, visual disturbance, weakness or \nbalance difficulty.  He has returned to work at full duty.  He \nremains engaged to his long time girlfriend over the past two \nyears.  He specifically denies any problems with anxiety.... \nNeuropsychological evaluation by Dr. Zolten indicates that Mr. \nPatterson’s memory, motor, visual perceptual and executive \nskills were all entirely within normal limits.  Dr. Zolten indicates \nproblems with anxiety and discussed the option of initiating \nmedical management with Citalopram.... \nImpression:  1.  No significant cognitive problems are noted \nbased on neuropsychological evaluation two years status post \nclosed head injury. \n2.  Anxiety issues identified on neuropsychological testing are \nnot considered specifically relateed (sic) to his closed head \ninjury. \n \nRecommendations:  The results of the evaluation were \ndiscussed in detail with Mr. Patterson and his family.  He has \nno interest in initiating medical management for anxiety at this \ntime.  He plans to continue to progress his activities at home \nand will undergo follow-up evaluation as needed.  He is \ncleared to remain at work on full duty without restriction.  In \nmy opinion, no further treatment is indicated at this time.   \n \n The claimant testified that he began suffering from what he \ndescribed as “seizures” beginning in about July 2022.  Kirk A. Coward, \nAPRN examined the claimant at FC – Stadium on July 25, 2022: \nGregory L. Patterson II is a 21 year old Caucasian/White male \nwho is complaining of passed out which started today and \nThursday ago.  Patient describes the symptoms as \nINTERMITTENT and rates the discomfort as 7/10.  Patient \nalso has stomach pain.... \n21 y/o presents with chest pain, SOB and syncope x 2-3 \nweeks.  Pt states that he passed out for the first time last \n\nPATTERSON - G905912  10\n  \n \n \nThursday and presented to the ER.  Pt states that the provider \nin the ER told him he had nodules in his lungs.  Pt reports \npain in his RUQ and passed out again this morning at \n9am....Hx of TBI x 3 years ago.   \n \n The APRN assessed “Chest pain,” “Shortness of breath,” “Syncope,” \n“RUQ pain,” “History of traumatic brain injury,” and “R/O Brain bleed.” \n A CT of the claimant’s head was taken on July 25, 2022 with the \nimpression, “No acute intracranial findings.  No significant change.”    \n The claimant sought treatment at Neurology Associates of Northeast \nArkansas PA on August 2, 2022.  Dr. Ronald E. South noted at that time, \n“21 year old right handed male presents with alteration of awareness.  He \nstates that sometimes he wakes up in the floor and doesn’t know how he \ngot there.  TBI in 2019 with several brain bleeds.”  Jessica S. Matthews, \nAPRN gave the following impressions:  “Problem #1:  SYNCOPE AND \nCOLLAPSE,” “Problem #2:  Alteration of consciousness,” “Problem #3:  \nNumbness and tingling sensation, skin,” “Problem #4:  Headache, \nunspecified,” and “Problem #5:  Neck spasm.”  Jessica Matthews reported: \nWe will order an MRI of his brain to evaluate and help with a \ndiagnosis for the patient.  The MRI will rule out infections, \nbrain tumors, stroke, bleeding in the brain, cyst, hormonal \ndisorders, spinal cord injuries, abnormalities in development \nand aneurysm, as well as any other reasoning for his syncope \nepisodes.  I will also order an EEG (electroencephalography) \nto monitor the electric sensitivity of the brain to detect any \ndisorders....Dr. South saw the patient with me and agreed to \nthe assessment and help formulate a plan for the patient. \nEEG Performed today:  Abnormal, awake and drowsy EEG.  \nAbnormal due to brief intermediate burst of sharp waves \n\nPATTERSON - G905912  11\n  \n \n \nactivity in the right temporal region exacerbated by photic \nstimulation and post hyperventilation 8 to 10 Hz.  Dr. South \nread:  Dr. South recommended starting the patient on Keppra \n500 mg twice a day.... \n \n An MRI of the claimant’s head was taken on August 8, 2022 with the \nimpression, “Negative MRI of the brain with contrast.\" \n Dr. Garrett Andrews, a Clinical Neuropsychologist, examined the \nclaimant on August 9, 2022: \nPatient is a 22-year-old, right-handed, Caucasian \nmale....Patient notes changes in behavior with \nlightheadedness, passing out, headaches, mood swings, \nanger spurts, and seizures occurring since September 9, \n2019.  Reports that he was thrown from an ATV with “multiple \nhead injuries and brain bleeds as well as a skull fracture.\"  He \nreports a daily headache in the left parietal area that is \ndescribed as stabbing pain.... \nPast medical history includes concussion, and seizures.  He \nreports that he had a petit mal/zoning out over the last 2 \nmonths following the loss of a friend.... \nMRI scan dated August 8, 2022 for syncope was interpreted \nas “negative MRI of the brain with contrast.”... \nOverall the current neurocognitive exam is grossly within \nnormal limits and does not suggest any gross cognitive \ndisorder.  Also, measures that are most sensitive to traumatic \nbrain injury and the effects of a brain injury are within normal \nlimits to superior range.  Suggesting there is no long-term \ncognitive sequela following a traumatic brain injury.  \nAdditionally, he reported significant neurobehavioral \nsymptoms that were deemed grossly amplified.  This may be \nrelated to a significant emotional disorder such as \nposttraumatic stress disorder; however, it may also indicate \namplification of symptoms.   \nGiven the evidence and data he would best be served by \npsychotherapy to address possible difficulties with adjustment \nand possible trauma response.  The current cognitive exam \ndoes support his ability to return to work at this time.  His \n\nPATTERSON - G905912  12\n  \n \n \nemotional abilities and mood may still be a hindrance and \nshould be addressed through medications and psychotherapy.   \n \n Dr. Andrews assessed “1.  Somatoform disorder” and “2.  \nPosttraumatic stress disorder – RULE OUT.”   \n The claimant continued to follow up with Jessica Matthews at \nNeurology Associates of Northeast Arkansas, PA.     \n The claimant treated at NEA Baptist on January 16, 2023.  Dr. \nAmanda Jo Watlington reported, “Patient is a 22-year-old male who \npresents today with seizures.  His significant other is with him, states he \nhad 4-5 seizures this morning.  Patient reports he [is] on Keppra and has \nbeen taking it as prescribed.”   \n An APRN noted at Buffalo Island Medical Clinic Leachville on March \n27, 2023, “Gregory L. Patterson, II presents complaining of seizure this \nmorning.  Patient also has headache and body aches right now, but states \nthis is common after he has a seizure....Patient states this is his first \nseizure in the past 3-4 months.”   \n A CT of the claimant’s head was taken on March 29, 2023 with the \nimpression, “No acute intracranial abnormality.  Specifically, no acute \nhemorrhage or acute infarct.” \n Dr. South’s impression on April 5, 2023 included “CONVULSIONS ... \nAssessment:  Deteriorated.”   \n\nPATTERSON - G905912  13\n  \n \n \n The claimant received emergency treatment at NEA Baptist on July \n26, 2023.  Dr. Kereem Monolito Marlow noted at that time, “Since he had \nthis possible head injury and seizure he has had right posterior headache \npain and right posterior neck pain.” \n The claimant received emergency medical treatment at St. Bernards \nMedical Center on August 7, 2023.  Dr. Amirtharaj Dhanaraja commented \nat that time: \nThe patient is a 22-year-old male who presents [to] the \nemergency department for evaluation of possible seizure.  He \nhas a seizure disorder secondary to remote traumatic brain \ninjury approximately 4 years ago.  He takes Keppra and has \nbeen taking as directed.  Did have a seizure approximate \nweek ago.  Prior to that it had been several months before he \nhad a seizure.   \n \n A CT of the claimant’s head was taken on August 7, 2023 with the \nimpression, “No acute intracranial findings.”  The results from an \nECG/Electrocardiogram dated August 7, 2023 were “Normal sinus rhythm.  \nNormal ECG.”    \n Under the attendance of Dr. Dhanaraja, Phillip W. Stokes, APN \nreported on or about August 8, 2023: \nA 22-year-old male with a past medical history of TBI, \nepilepsy on Keppra presents after being found to be \nunresponsive at home most likely secondary to a seizure.  \nArrival to SBMC, patient was hemodynamically stable, CT \nhead was negative for any acute intraconal (sic) pathology, \nlabs were unremarkable.  Patient was admitted for the \nmanagement of breakthrough seizures, neurology was \nconsulted and recommended increasing the Keppra to 1500 \n\nPATTERSON - G905912  14\n  \n \n \nmg twice daily from 1000mg however patient has already \nbeen on 1500 mg twice daily.  Will inform neurology and see if \nthey want to add more antiepileptics.  Patient has been \nseizure-free since admission.  Patient was noted to have \nbradycardia and therefore echocardiogram and carotid \nDopplers have been ordered we will follow.... \nRECOMMENDATIONS \n1) Continue Keppra to 1500 mg bid. \n2) Avoid alcohol consumption. \n3) Social work to report patient to Department of Motor \nVehicles. \n4) f/u outpatient PCP. \n5) signing off.   \n \n A pre-hearing order was filed on February 28, 2024.  The claimant \ncontended, “1.  The above listed proposed stipulations.  2.  The Claimant \nwas injured on September 10, 2019, when he was a passenger of an ATV \nin which the driver took a turn too fast causing the Claimant to be ejected \nfrom the vehicle which caused an injury to his head and brain.  The \nClaimant was life-flighted to Regional One Health Medical Center in \nMemphis, Tennessee for emergency treatment.  He was hospitalized for \ntwo (2) days due to his injuries and was discharged with a head injury and \nintraparenchymal hemorrhage of brain.  The Claimant was scheduled to \nfollow-up with neurosurgery within one (1) month.  The Claimant followed-\nup with therapy including speech therapy within a month of the injury.  On \nOctober 1, 2019, the Claimant was seen by Dr. John Brophy for follow-up \non the traumatic head injury.  On December 19, 2019, the Claimant was \nseen at St. Bernard’s Medical Center for increased headaches.  The \n\nPATTERSON - G905912  15\n  \n \n \nClaimant continued to follow-up with Dr. Brophy for continued increase in \nheadaches and was released on January 22, 2020.  The Claimant \ncontinued to get regular treatment and imaging of his head due to ongoing \nand continuous headaches.  The Claimant began to have seizures along \nwith numbness on the left side of his body and was seen at NEA Baptist \nHospital wherein testing and evaluations have been performed as well as \ncontinued follow-up with Semmes-Murphy Clinic.  3.  The Claimant reserves \nthe right to amend and supplement his contentions after additional \ndiscovery has been completed.”   \n The respondents contended, “Respondents contend that claimant’s \nhead injury was accepted as compensable, and he has received all \nreasonable and necessary medical treatment and indemnity benefits.  On \nSeptember 10, 2019, claimant jumped out of a mule and hit his head.  He \nwas med flighted to the Med in Memphis.  Claimant saw Dr. Brophy, who \nreleased him to full duty, placing him at MMI and no impairment rating on \nJanuary 22, 2020.  Claimant saw a neuropsychologist, Dr. Zolten on \nDecember 9, 2021.  Dr. Zolten noted his memory was normal and did not \nrecommend further treatment for the compensable injury.  Dr. Brophy \nconfirmed that Dr. Zolten’s neuropsychologist report was normal and \nreleased him from his care on January 25, 2022.  Respondents are not \naware of any further medical treatment or treatment recommendations.  \n\nPATTERSON - G905912  16\n  \n \n \nRespondents reserve the right to file an Amended Response to the \nPrehearing Questionnaire or other appropriate pleading and to allege any \nfurther affirmative defense(s) that might be available upon further \ndiscovery.”   \n The parties agreed to litigate the following issue:  “1.  Whether \nClaimant is entitled to additional reasonable and necessary medical \ntreatment for his compensable injury.” \n A hearing was held on July 26, 2024.  The claimant testified on direct \nexamination: \nQ.  After you got back home and went through the treatment \nmodalities and all that, can you tell the judge what problems \nyou were having at that point from these injuries? \nA.  Constant headaches.  I guess you would call it vertigo.   \nQ.  Okay. \nA.  Dizzy spells.  And at times double vision.... \nQ.  Tell me what the folks at Buffalo Island Medical Clinic \nhave done for you since your injury? \nA.  They’ve helped me with, with my headaches.  They’ve \ntried different kind of medications to help me out, to try to \nprevent them or keep them away as long as I can.   \nQ.  Okay.  Do you continue to see them? \nA.  Yes, sir.... \nQ.  Prior to your head injury with the City of Monette, did you \nhave any of these issues of vertigo or syncope? \nA.  No, sir.   \nQ.  Okay.  And you still have them to this day? \nA.  Yes, sir.   \nQ.  How often do you have the vertigo or the syncope? \nA.  Once every couple of months.   \nQ.  Okay.  They’re not as often as the headaches? \nA.  Correct....   \n \n The respondents’ attorney cross-examined the claimant: \n\nPATTERSON - G905912  17\n  \n \n \nQ.  So far as your seizures go, you’re primarily receiving \nmedication called Keppra, right? \nA.  Correct. \nQ.  Other than that, you just do some follow-up visits.  Is that \ncorrect? \nA.  Yes, ma’am. \nQ.  There’s no other medical treatment that you’re receiving \nfor that, right? \nA.  Correct.   \n \n An administrative law judge filed an opinion on September 5, 2024.  \nThe administrative law judge found that the claimant proved he was \n“entitled to reasonable and necessary medical treatment for his headaches \nand seizures.”  The respondents appeal to the Full Commission.  \nII.  ADJUDICATION \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 70 (1984).     \n\nPATTERSON - G905912  18\n  \n \n \n An administrative law judge found in the present matter, “3.  The \nClaimant has proven by the preponderance of the evidence that he is \nentitled to reasonable and necessary medical treatment for his headaches \nand seizures.”  The Full Commission finds that the claimant proved that the \nmedical treatment of record after January 25, 2022, including follow-up \ntreatment at Buffalo Island Medical Clinic, was reasonably necessary in \naccordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).    \n As we have discussed, the parties stipulated that the claimant \n“sustained a compensable head injury” on September 10, 2019.  The record \nshows that the claimant was apparently thrown from an All-Terrain Vehicle \nwhile he was performing employment services.  As a result of the \ncompensable head injury, the claimant sustained hemorrhaging within the \nleft lateral lobe and a fracture of the left temporal/parietal bone.  The \nclaimant subsequently treated with various therapists and physicians, \nincluding Dr. Brophy.  Dr. Brophy noted in November 2019 that the claimant \nwas suffering from “headache” following the compensable closed head \ninjury.  The claimant sought emergency treatment for “headaches” in \nDecember 2019.   \n The claimant was involved in a nonwork-related motor vehicle \naccident in August 2020.  The claimant was sitting in a parked vehicle that \nwas hit by another vehicle.  The evidence does not demonstrate that the \n\nPATTERSON - G905912  19\n  \n \n \nclaimant sustained another closed head injury as a result of the accident \noccurring in August 2020.  The claimant complained of pain in his neck, \nback, right forearm, and right knee.  Although the claimant was given a \nconcussion protocol, a head CT was “normal.”  The claimant followed up \nwith Dr. Brophy in September 2021, and Dr. Brophy did not report that the \nclaimant was suffering from symptoms related to the accident occurring in \nAugust 2020.  Instead, Dr. Brophy noted that the claimant’s complaints \nwere “related to his closed head injury which occurred in September 2019.”   \n Dr. Brophy stated on January 25, 2022, “In my opinion, no further \ntreatment is indicated at this time.”  The healing period is that period for \nhealing of an accidental injury that continues until an employee is as far \nrestored as the permanent character of the injury will permit.  Hope Sch. \nDist. v. Wilson, 2011 Ark. App. 219, 382 S.W.3d 782.  Based on Dr. \nBrophy’s report, the Full Commission finds in the present matter that the \nclaimant reached the end of the healing period for his September 10, 2019 \ncompensable injury no later than January 25, 2022.  However, it is well-\nsettled that a claimant may be entitled to ongoing medical treatment after \nthe healing period has ended, if the medical treatment is geared toward \nmanagement of the claimant’s compensable injury.  Patchell v. Wal-Mart \nStores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004).   \n\nPATTERSON - G905912  20\n  \n \n \n The Full Commission finds in the present matter that the medical \ntreatment of record provided after January 25, 2022 was geared toward \nmanagement of the claimant’s injury and was reasonably necessary in \nconnection with the compensable injury.  If an injury is compensable, then \nevery natural consequence of that injury is also compensable.  Hubley v. \nBest Western Governor’s Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996).  \nThe basic test is whether there is a causal connection between the two \nepisodes.  Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d \n645 (1998).  The burden is on the claimant to establish the necessary \ncausal connection.  Nichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 \nS.W.3d 148.  Whether there is a causal connection is a question of fact for \nthe Commission.  Jeter, supra.  In workers’ compensation cases, the \nCommission functions as the trier of fact.  Blevins v. Safeway Stores, 25 \nArk. App. 297, 757 S.W.2d 569 (1988).  The Commission is not required to \nbelieve the testimony of the claimant or any other witness but may accept \nand translate into findings of fact only those portions of the testimony it \ndeems worthy of belief.  Farmers Co-op v. Biles, 77 Ark. App. 1, 69 S.W.3d \n899 (2002). \n The Full Commission finds in the present matter that the claimant \nwas a credible witness.  The claimant proved that the chronic headaches \nfrom which he has suffered were a natural consequence of the September \n\nPATTERSON - G905912  21\n  \n \n \n10, 2019 compensable head injury.  Dr. Brophy reported as early as \nNovember 2019 that the claimant was suffering from headaches following \nthe compensable injury.  The record does not show that the claimant \nsuffered from chronic headaches, which were sometimes debilitating, prior \nto the compensable injury.  The claimant testified that he began suffering \nfrom seizures in about July 2022, and the report from FC – Stadium \ncorroborated the claimant’s testimony.  Dr. South noted “alteration of \nawareness” in August 2022.  An EEG on August 2, 2022 was “Abnormal \ndue to brief intermediate burst of sharp waves activity in the right temporal \nregion[.]”  The Full Commission finds that this diagnostic abnormality was \ncausally related to the September 10, 2019 compensable closed head \ninjury.  Dr. Andrews reported on August 9, 2022 that the claimant had been \nsuffering from seizures since the date of the compensable injury.   \n Finally, Dr. Dhanaraja reported on August 7, 2023, “He has a seizure \ndisorder secondary to remote traumatic brain injury approximately 4 years \nago [emphasis supplied].  It is within the Commission’s province to weigh all \nof the medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  The Full \nCommission finds in the present matter that Dr. Dhanaraja’s opinion is \ncorroborated by the record and is entitled to significant evidentiary weight.  \nThe claimant proved that both his chronic headaches and his occasional \n\nPATTERSON - G905912  22\n  \n \n \nseizures were a natural consequence of the September 10, 2019 \ncompensable head injury.   \n After performing a de novo review of the entire record currently \nbefore us, the Full Commission finds that the claimant proved the medical \ntreatment of record provided after January 25, 2022 was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nSaid reasonably necessary medical treatment includes follow-up visits at \nBuffalo Island Medical Clinic.  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to a fee of five hundred \ndollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \n I respectfully dissent from the majority opinion finding the medical \ntreatment provided to the claimant after January 25, 2022, was reasonable \nand necessary, and the claimant’s headaches and seizures were a natural \nconsequence of his compensable head injury.  \n\nPATTERSON - G905912  23\n  \n \n \nThe claimant was injured in September of 2019 when he suffered a \nhead injury in an ATV accident.  The respondents accepted the claim as \ncompensable and paid all appropriate benefits.  \nThe claimant was released at maximum medical improvement with \nno permanent impairment or work restrictions on January 22, 2020, by Dr. \nJohn Brophy, a neurosurgeon in Memphis, Tennessee.  The claimant was \nlater in a car accident on August 22, 2020, in which he sustained an injury \nto his neck as well as other areas of his body. \nOn September 28, 2021, Dr. John Brophy recommended the \nclaimant undergo a neuropsychological evaluation.  The neuropsychological \nevaluation was performed by Dr. A.J. Zolten on December 9, 2021, and the \nresults were within the range of normal.  Dr. Brophy cleared the claimant to \nremain at work full duty without restrictions and did not recommend any \nfurther medical treatment. \n In August 2022, the claimant began complaining of seizures and \nheadaches for which he requests additional medical treatment.  An \nadministrative law judge ruled the claimant proved by a preponderance of \nthe evidence he is entitled to additional medical treatment.  After a review of \nthe entire record, I find the claimant is not entitled to additional medical \ntreatment, because his complaints of seizures and headaches are not \nrelated to his compensable injury on September 10, 2019. \n\nPATTERSON - G905912  24\n  \n \n \nArk. Code Ann. § 11-9-508(a) requires an employer to provide an \nemployee with medical and surgical treatment \"as may be reasonably \nnecessary in connection with the injury received by the employee.\"   The \nclaimant has the burden of proving by a preponderance of the evidence the \nadditional treatment is reasonable and necessary.  Nichols v. Omaha Sch. \nDist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013).  \nHere, the claimant has failed to prove his alleged headaches and \nseizures are causally related to his compensable injury.  Records from \nSemmes-Murphy Clinic dated October 1, 2019, reflect the claimant stated \nhe was “doing quite well, without headache, visual disturbance, weakness, \nparesthesias or memory difficulty.”  \nThe claimant did not complain of headaches until he returned to \nschool and began using a computer to complete his schoolwork at night \nafter working throughout the day.  \n\nPATTERSON - G905912  25\n  \n \n \nBy January 21, 2020, the claimant’s symptoms had definitely \nimproved.  By September 28, 2021, the claimant no longer reported \nheadaches.  Two years post-injury, the claimant reported “fatigue without \nheadaches, visual disturbance, weakness or balance difficulty.”  The \nclaimant did not report severe headaches until August of 2022, which, along \nwith “passing out episodes” had begun two months prior.  \nThe claimant has undergone seven head CTs since his injury, all of \nwhich have shown normal results without acute findings.  An MRI \nconducted on August 8, 2022, revealed the same results. \nThere is no evidence the claimant has suffered from “continuous” \nheadaches from January 2020 through August 2022.  The record reflects \nhis injury-related headaches had resolved for years before he began \nsuffering from headaches in 2022, simultaneous to when his seizures \nbegan.  No doctor has related the claimant’s current headaches to his 2019 \ninjury and there are no findings to show they are related. \nThe claimant has failed to prove by the preponderance of the \nevidence his headaches are the result of his 2019 injury. \nThe claimant further alleges he began suffering from seizures as a \nresult of his injury.  However, by his own admission, no doctor has ever \nrelated the claimant’s seizures to his work injury.  In fact, the claimant \n\nPATTERSON - G905912  26\n  \n \n \ninformed doctors “he has also been told the symptoms might be related to a \npinched nerve in his neck.\"  \nThese seizures did not begin until June or July of 2022, nearly three \nyears after the claimant’s injury.  All objective tests have been normal with \nno findings to link the complaints of headaches and seizures to the \ncompensable injury.  \nThere is simply no objective evidence to relate the headaches or \nseizures to the claimant’s compensable injury.  All these complaints \noriginated in 2022, nearly three years after the compensable injury and two \nand a half years after he had been released to full-duty work.  In addition, \nthe claimant was involved in a car accident subsequent to the compensable \ninjury and prior to his complaints of headaches and seizures.   \nNo doctor who has treated the claimant has found any objective \nmedical findings to relate the complaints of headaches and seizures to the \ncompensable injury.   \nAccordingly, for the reasons set forth above, I must dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":40568,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G905912 GREGORY PATTERSON, EMPLOYEE CLAIMANT CITY OF MONETTE, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 5, 2025","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["fracture","neck","back","knee","concussion","tbi"],"fetchedAt":"2026-05-19T22:29:44.476Z"},{"id":"alj-H403806-2025-03-03","awccNumber":"H403806","decisionDate":"2025-03-03","decisionYear":2025,"opinionType":"alj","claimantName":"Jimmy Case","employerName":"Creative Design Concepts, LLC","title":"CASE VS. CREATIVE DESIGN CONCEPTS, LLC AWCC# H403806 March 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CASE_JIMMY_H403806_20250303.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CASE_JIMMY_H403806_20250303.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H403806 \n \nJIMMY CASE, Employee       CLAIMANT \n \nCREATIVE DESIGN CONCEPTS, LLC, Employer       RESPONDENT \n \nACCIDENT FUND INS. CO., Carrier/TPA    RESPONDENT                                                                                                    \n \n \n \n OPINION/ORDER FILED MARCH 3, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at the hearing. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n Claimant filed Form AR-C alleging that he suffered a compensable injury in May \n2024.  Discovery  was  conducted  by  the  parties  with  the  respondent  responding  to \nclaimant’s discovery request, but claimant did not respond to the respondent’s discovery \nrequest. A Motion to Withdraw as Claimant’s Counsel was filed by attorney Mark Peoples \nand was granted by the Full Commission Order filed August 20, 2024. No further action \nhas  been  taken  in  this  claim  and  respondent  filed  its  Motion  to  Dismiss  on  January  6, \n2025.  \n A hearing was scheduled on the respondent’s Motion to Dismiss for February 24, \n2025. Notice of the hearing was sent to claimant by certified mail and was delivered on \n\nCase – H403806 \n2 \n \nJanuary  29,  2025.  Later  that  same  date,  claimant  telephoned  my  assistant,  Janie \nMcGaugh, and indicated that he did not wish to proceed with his case. This conversation \nis  reflected  in  a  memo  dated  January  29,  2025,  and  admitted  into  the  record  as \nCommission Exhibit 2. \n After my review of the respondent’s motion, the claimant’s response thereto, and \nall  other  matters  properly  before  the  Commission,  I  find  that  respondent’s motion  to \ndismiss  this  claim should  be  and  hereby  is  granted.    This  dismissal  is  pursuant  to \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      ____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2234,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H403806 JIMMY CASE, Employee CLAIMANT CREATIVE DESIGN CONCEPTS, LLC, Employer RESPONDENT ACCIDENT FUND INS. CO., Carrier/TPA RESPONDENT OPINION/ORDER FILED MARCH 3, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Cou...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:42:20.278Z"},{"id":"alj-H204510-2025-03-03","awccNumber":"H204510","decisionDate":"2025-03-03","decisionYear":2025,"opinionType":"alj","claimantName":"Rachel Nowotny","employerName":"Johnson Regional Medical Ctr","title":"NOWOTNY VS. JOHNSON REGIONAL MEDICAL CTR. AWCC# H204510 March 03, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/NOWOTNY_RACHEL_H204510_20250303.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NOWOTNY_RACHEL_H204510_20250303.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H204510 \n \nRACHEL NOWOTNY, Employee      CLAIMANT \n \nJOHNSON REGIONAL MEDICAL CTR., Employer       RESPONDENT \n \nRISK MANAGEMENT RESOURES, Carrier/TPA   RESPONDENT                                                                                                    \n \n \n \n OPINION/ORDER FILED MARCH 3, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at the hearing. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n This claim involves an injury to claimant’s right wrist which occurred on April 11, \n2022.  On  June  22,  2022,  claimant  filed Form AR-C.  On  July  12,  2022,  a  Change  of \nPhysician order was granted to the claimant. Since that time, no further action has been \ntaken by the claimant to prosecute her claim. \n On December 17, 2024, respondent filed a motion to dismiss this claim. A hearing \nwas scheduled on the respondent’s motion for February 24, 2025. Notice of the hearing \nwas sent to claimant by certified mail and was delivered on January 17, 2025. Claimant \ndid  not  appear  at  the  hearing  and  has  not  responded  to  the  respondent’s Motion  to \nDismiss. \n\nNowotny – H204510 \n2 \n \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      ____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":1901,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204510 RACHEL NOWOTNY, Employee CLAIMANT JOHNSON REGIONAL MEDICAL CTR., Employer RESPONDENT RISK MANAGEMENT RESOURES, Carrier/TPA RESPONDENT OPINION/ORDER FILED MARCH 3, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebasti...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T22:42:22.340Z"},{"id":"alj-H401912-2025-02-27","awccNumber":"H401912","decisionDate":"2025-02-27","decisionYear":2025,"opinionType":"alj","claimantName":"Patience Bragg","employerName":"United Parcel Service, Inc","title":"BRAGG VS. UNITED PARCEL SERVICE, INC. AWCC# H401912 February 27, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRAGG_PATIENCE_H401912_20250227.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRAGG_PATIENCE_H401912_20250227.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H401912 \n \nPATIENCE BRAGG, EMPLOYEE       CLAIMANT \n \nUNITED PARCEL SERVICE, INC., EMPLOYER         RESPONDENT \n \nLM INSURANCE CORP./LIBERTY MUTUAL GROUP, \nCARRIER/TPA                RESPONDENT \n  \n \n \nOPINION FILED 27 February 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 26 February 2025 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nNewkirk & Jones, Mr. David Jones, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 26 February 2025. This case relates to an alleged workplace injury \nsustained on or about 28 February 2024.  \nA First Report of Injury was filed on 18 March 2024, indicating an injury to the \nclaimant’s hand. The respondents subsequently filed a Form AR-2 denying the claim. They \nindicated that the claimed injury did not appear to be new or distinct from a previously \nclaimed injury. An amended Form AR-2 was filed on 27 March 2024 that reaffirmed the \nrespondents’ denial of liability for a new injury. The respondents note that the claimant \npreviously prosecuted an accepted claim (H109846) for a wrist injury. \nOn 25 March 2024, the Commission received the claimant’s request for a hearing on \nthe denial of this claim. Then, on 21 April 2024, the claimant sent an email to the adjuster \nassigned to her claim stating, “As of today I will not be moving forward with this [matter].” \n\nBRAGG- H401912 \n2 \n \nThe respondents forwarded that notice to the Commission the following day. Then, on 27 \nApril 2024, the respondents sought confirmation from the claimant on her notice of intent \nto drop her claim. She did not respond to that request, so they provided discovery requests \nto the claimant on 1 May 2024. The claimant did not provide any response(s) to those \nrequests. \nOn 6 May 2024, my office sent a letter to the claimant advising that, consistent with \nher expressed intent, the claim file was being returned to the Clerk’s office. That letter \ndirected that any request for further action should be directed to the Clerk of the \nCommission. The file does not indicate any such communication from the claimant. \n The respondents eventually moved for a dismissal for lack of prosecution on 10 \nDecember 2024, citing ACA §§ 11-9-702(a)(4), (d) and Commission Rule 099.13. Therein, \nthey argued that more than six months had passed since the request for a hearing and the \nnotice of the claimant withdrawing her request for a hearing. They also argued that the \nclaimant did not respond to their discovery requests sent around the time of her request to \nwithdraw the hearing request. \n Notice of the respondents’ motion was sent to the claimant, consistent with AWCC \npractices, via First Class Mail and Certified Mail, on 11 December 2024. After no response \nor objection was received by the Commission, a notice of a hearing on that motion was sent \nin the same fashion on 22 January 2025. When mailings are returned to the AWCC as not \naccepted or undeliverable, those mailings are appended to the claim’s file. This file contains \na return of only the certified letter from 11 December 2024. \nThe respondents appeared on 26 February 2025, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no bona fide request for a hearing on an issue ripe for litigation in this claim in the \nrelevant time preceding the filing of their motion. The claimant did not appear to resist the \n\nBRAGG- H401912 \n3 \n \ndismissal of his claim, which is consistent with her notice of intent to abandon this claim. \nThe respondents offered a number of documents into the record which, collectively, were \nadmitted as Respondents’ Exhibit No 1. The exhibit included fifty-six (56) pages of records. \nContained therein are correspondence and filings from this claim and records from her \nprevious, accepted claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel; \nI find (1) that the parties were provided with reasonable notice of the respondents’ Motion \nto Dismiss and the hearing, (2) that the respondents’ Motion to Dismiss should be granted, \nand (3) that this matter should be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4871,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H401912 PATIENCE BRAGG, EMPLOYEE CLAIMANT UNITED PARCEL SERVICE, INC., EMPLOYER RESPONDENT LM INSURANCE CORP./LIBERTY MUTUAL GROUP, CARRIER/TPA RESPONDENT OPINION FILED 27 February 2025 Heard before Arkansas Workers’ Compensation Commission (AWCC) Admini...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T22:44:00.884Z"},{"id":"alj-H303428-2025-02-26","awccNumber":"H303428","decisionDate":"2025-02-26","decisionYear":2025,"opinionType":"alj","claimantName":"Joyce Johnson","employerName":"Booker T. Washington Elem. School","title":"JOHNSON VS. BOOKER T. WASHINGTON ELEM. SCHOOL AWCC# H303428 February 26, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Johnson_Joyce_H303428_20250226.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Johnson_Joyce_H303428_20250226.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303428 \n \nJOYCE JOHNSON, EMPLOYEE CLAIMANT \n \nBOOKER T. WASHINGTON ELEM. SCHOOL, \nSELF-INSURED EMPLOYER RESPONDENT \n \nARKANSAS SCHOOL BOARD ASSN., \nCARRIER/THIRD-PARTY ADMINISTRATOR RESPONDENT \n \nOPINION FILED FEBRUARY 26, 2025 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on January 14,  2025,  in  Little  Rock, \nArkansas. \n \nClaimant was represented by Mr. Gregory R. Giles, Attorney at Law, Texarkana, Arkansas. \n \nRespondents were represented by Ms. Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  full  hearing  was  held  on  this  claim  on January  14,  2025.    A  prehearing  telephone \nconference  took  place  on July 2,  2024.  A  prehearing  order  was  entered  on  that  date  and \nsubsequently  entered  into  evidence,  with  amendments  by  the  parties,  as Commission  Exhibit  1. \nThe parties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. The employer/employee/carrier  relationship  existed  among  the  parties  on \nMay 2, 2023,  when  Claimant allegedly sustained  compensable injuries to \nher back. \n \n3. Respondents have controverted this claim in its entirety. \n \n4. The parties stipulate to Claimant receiving max rates meaning a temporary \ntotal  disability  rate  of  $835.00  and  a  permanent  partial  disability  rate  of \n$626.00 per week. \n\nJOHNSON H303428 \n \n \n2 \n \n \nISSUES \n The parties have identified the following issues\n1\n to be adjudicated: \n1. Whether Claimant sustained a compensable aggravation of a pre-existing injury to her \nback.\n2\n  \n \n2. Whether Claimant is entitled to reasonable and necessary medical treatment from May \n3, 2023, to July 5, 2024. \n \n3. Whether Claimant is entitled to Temporary Total Disability benefits from September \n1, 2023, to April 23, 2024. \n \n4. Whether  Claimant  is  entitled  to  Temporary  Partial  Disability  benefits  from  June  1, \n2023, to August 30, 2023. \n \n5. Whether  Claimant  is  entitled  to  Permanent Partial  Disability  benefits,  specifically  a \n10% impairment rating to the body as a whole associated with the injuries sustained to \nher back. \n \n6. Whether Claimant’s attorney is entitled to a controverted attorney’s fee. \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s Contentions: The Claimant contends that she sustained compensable injuries. \nThe  primary  injury  is  the  aggravation  of  a  pre-existing  condition  of  her  low  back  which  has \nsubsequently required surgery. Claimant is entitled to temporary total disability benefits from the \ndate she began missing work. Claimant also contends that Respondents should be ordered to pay \nthe  medical  treatment  received  to  date  and  additional  medical  treatment.  Claimant  is  entitled  to \n \n1\n The Claimant had motioned for modification of issue 1 to include only the aggravation \nof the back injury as the only alleged compensable injury, issue 2 to include the dates May 3, \n2023, to July 5, 2024, issue 3 changed the February 20, 2024, date to April 23, 2024, and the \ninclusion of issue 4 on Temporary Partial Disability benefits. Claimant’s oral motion was \ngranted. \n2\n The primary issue, based on testimony, involves the specific injury to Claimant’s lower \nback. More specifically, the L4-L5 region. \n\nJOHNSON H303428 \n \n \n3 \n \n \nattorney fees as provided by law.  \nRespondents’ Contentions: Respondents   contend that   Claimant did   not   suffer   a \ncompensable injury on or about May 2, 2023. Considering this, it is Respondents’ position that \nClaimant is not entitled to benefits associated with her alleged injury.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary record, I hereby make the following Findings of Fact and Conclusions of Law in accordance \nwith Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant has not proven that she has sustained an aggravated compensable spinal \ninjury with objective findings.  \n \n4. Based  on  my  findings  of  no  compensability,  the  remaining  issues  of  reasonable  and \nnecessary  medical  treatment,  temporary  total  disability  benefits,  temporary  partial \ndisability benefits, permanent partial disability benefits, and a controverted attorney’s \nfee are moot and will not be addressed in this opinion.  \n \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, Medical Records, that consists of 75 pages, \nRespondents’ Exhibit 1, medical records, that consist of 91 pages, and Commission Exhibit 1, Pre-\nHearing Order filed July 2, 2024, that consists of 5 pages. Forms AR-C, AR-2, AR-1, Claimant’s \npost-hearing brief, and Respondents’ post-hearing brief are all blue-backed and made a part of this \nrecord. The Claimant was the only witness testifying in the full hearing.  \nClaimant was employed as a music teacher for the Respondent/Employer. On May 2, 2023, \nClaimant was pushed into a classroom door, that she was holding open for other students to exit, \n\nJOHNSON H303428 \n \n \n4 \n \n \nby a disgruntled third-grade student who was just disciplined by her. The student pushed Claimant \nin her back causing the left side of her body to hit the door. The Claimant did not fall to the ground \nwhen pushed into the door by the student. The Claimant testified that she felt pain in her left hip \nand down her left leg. Claimant stated that she had to resume using her cane once she got off work \non the day of the incident.  \nThe  Claimant  has  a long history  of  back issues  with  associated pain.  According  to  the \nClaimant, in 1992-93 she was involved in a car accident and injured her upper back. Trans. p. 43, \nlines  24-25 – p.  44  lines  1-21. The  Claimant  also testified  that  she fell  out  of  a  chair  while \ndecorating her classroom thus again injuring her back in the year 2011. Id. The Claimant had an \nMRI on November 9, 2011, that shown some mild degenerative changes, but no significant disc \nherniation at the L4-L5 level. See CL Ex. 1, p. 341.  \nOn November 17, 2022,  Claimant met with Dr. Eric Joseph at CHI St. Vincent Primary \nCare University for tingling in her back. CL Ex. 1, p. 2.  According to her history, the Claimant \nwas present for an evaluation concerning a diffuse paresthesia in both of her legs. Id. The Claimant \nreported that  she  continued to  have  diffuse  pain  and  tingling  and  wants  treatment. Id. She also \nreported no  recent  injury,  trauma, or  change  in  her  symptoms  during  her  visit  with  Dr.  Joseph. \nClaimant also has a diagnosis of complex regional pain syndrome in her right upper extremity. CL \nex. 1, pp. 8-9. This syndrome was responding well to medical management. Id.  \nOn February 23, 2023, Claimant met with Dr. Adam Smith at OrthoArkansas complaining \nabout right side hip pain. CL Ex. 1, p. 22. The pain was in the buttocks and would radiate down \nthe  back  of  the  leg. Id. Claimant  stated  that  the  pain  was  made  worse  by  prolonged  walking  or \nstanding,  as  well  as,  getting  in  and  out  of  chairs, and  walking  up  and  down  stairs. Id. Claimant \n\nJOHNSON H303428 \n \n \n5 \n \n \nfurther stated that she would occasionally get electrical shock type of pain in her leg. Id. Dr. Smith \nreferred her to an orthopedic surgeon. Id.  \nClaimant saw Dr. Stephen Paulus on March 8, 2023, at OrthoArkansas. CL Ex. 1, pp. 23-\n28. Dr. Paulus referred the Claimant to a physical therapist to assist her with mechanical support \nand stabilization of her spine. Id. Claimant was instructed to contact the clinic after one week if \nthe Claimant is not experiencing appropriate symptomatic benefits. Id.  \nThe Claimant next visited Rebekah Long, a Physical Therapist at OrthoArkansas, on March \n17,  2023. CL  Ex.  1,  32-34.  The  Claimant  reported  low  back pain with  activity. Id.  She  further \nreported  radicular  symptoms  down  both  legs  to  the  knee  and  occasionally  the  foot. Id. The \nClaimant  stated  that  she  has  been  experiencing  her  symptoms  consistently  for  about  six  weeks \nprior to her visit with the physical therapist; and randomly over the past two years. Id. Claimant \nhad a follow-up visit with Dr. Paulos on April 11, 2023. CL Ex. 1, pp. 53-58. Dr. Paulos ordered \nClaimant an MRI of her lumbar spine since she reported radicular leg pain during two sessions of \nher physical therapy. Id. Claimant next had an MRI of her lumbar spine on April 12, 2023, twenty \ndays before her alleged work-related incident. CL Ex. 1, p. 59. \nThe April 12, 2023, MRI was done at OrthoArkansas and reviewed by Dr. Jay Martin, of \nKanis-Reader, in Little Rock, Arkansas. Dr. Martin’s impression of the MRI is as follows: \n1. Multilevel degenerative disc disease. \n2. A broad-based central protrusion of the L4-5 disc is superimposed on generalize bulging \nof  the  disc.  Central  spine  canal  stenosis  at  the  L4-5  level  due  to  abnormal  disc  facet \narthropathy  and thickening  of  the  ligamentum  flavum.  Right  facet  arthropathy  mildly \neffaces the right side of the thecal sac.  \n3. There is a narrowing of the right lateral recess at the L4-5 level, with impingement on the \ndescending right L5 nerve root. \nCL Ex. 1, p. 59. \nOn April  28,  2023,  the  Claimant  received  a  right  and  left  L5-S1  epidural  injection, \napproximately four days before the work-related incident. CL Ex. 1, pp. 70-71. The work-related \n\nJOHNSON H303428 \n \n \n6 \n \n \nincident occurred May 2, 2023.\n3\n In response to the work-related incident,  the Claimant saw Dr. \nScott Carle on May 3, 2023, and was diagnosed with a pelvic contusion and sprain of a ligament \nin her left knee.\n4\n Cl Ex. 1, pp. 81-82. Dr. Carle also prescribed the Claimant pain medication. Id. \nClaimant followed-up with Dr. Carle to recheck her back on May 19, 2023. CL Ex. 1, pp. 177-\n187. At that time, Dr. Carle assessed Claimant with lumbar radiculopathy and referred her to an \northopedic specialist. Id. Dr. Carle also ordered an MRI on May 19, 2023, at Chenal MRI. CL Ex. \n1, pp. 174-176. The result of this MRI, as it specifically relates to Claimant’s L4-L5, is as follows: \n1. L4-L5:    Mild  disc  bulge  and  right  paracentral  to  right  foraminal  disc herniation  with \nmoderate spinal canal stenosis, severe mass effect on the right lateral recess, severe right \nand moderate left neural foraminal narrowing. \nCL Ex. 1, p. 175 \nThe May 19, 2023, MRI report  also noted, as to Claimant’s L4-L5, a moderate bilateral \nfacet joint arthropathy. Id.  There was also a thickening of the bilateral ligamentum flavum with \nan estimated diameter of approximately three millimeters. Id. Dr. Stephen Paulus did a comparison \nbetween the May 19, 2023, MRI and the April 12, 2023, MRI and found that Claimant’s L4-L5 \nwas “unchanged.” Resp. Ex. 1, pp. 70-71. On June 7, 2023, Dr. Carle was asked by letter from \nLisa  Wigginton, a Workers’  Compensation  Claims Adjuster,  about whether  there  were  any \nobjective findings concerning Claimant’s back injury. Resp. Ex. 1, p. 73. Dr. Carle responded, in \nwriting, by stating “none.” Id. Dr. Carle further opined that there were “negative studies for \n \n3\n Both sides agree that a specific incident occurred involving a third grader pushing the \nClaimant into a door. However, there is disagreement that the episode produced objective \nfindings. \n4\n I was not asked to rule on the compensability and reasonable treatment of these injuries. \nThough the compensability of these injuries, at best, appear clear. I will only be addressing the \nalleged back injury. \n\nJOHNSON H303428 \n \n \n7 \n \n \nfracture or internal injuries.” Dr. Carle concluded by stating that Claimant had “no measurable \naggravation to pre-existing spine disorder.” Id.  \nThe Claimant next visited Dr. Bernard Crowell, Orthopedic Specialist, on July 27, 2023, \nfor  assistance  with  her  back  pain  when  it  was  decided  that  surgery,  a  hemilaminectomy  and \ndiskectomy  of  the  L4-L5,  would  be  the  best  course  of  treatment.  CL  Ex.  1,  pp.  252-256.  Dr. \nCrowell performed this surgery on August 11, 2023. CL Ex. 1, pp. 264-266. The Claimant testified \nthat the surgery helped her with her pain.  \nAfter some healing time, Claimant underwent another MRI on February 9, 2024, by Chenal \nMRI. CL Ex. 1, pp. 333-334. Dr. William W. Davenport reviewed the results of the MRI scan and \nnoted the following as it relates to Claimant’s L4-L5:  \nL4-L5:    Interval    right    laminectomy.    Interval    right    discectomy.    Enhancing \npostoperative  granulation  tissue  at  the  laminectomy  site  and  in  the  right  lateral  recess. \nResidual bulging annulus and bilateral facet hypertrophy with moderate bilateral foraminal \nstenoses. \n \nCL Ex. 1, pp. 333-334. Dr. Davenport’s impression, in regard to Claimant’s low back injury, post \noperation, was a moderate bilateral foraminal stenoses at her L4-L5-S1. Id.   \nDue to multiple MRI’s being involved  in  this  claim,  an independent  medical  evaluation \nwas obtained, by Respondents, from Dr. Wayne Bruffett on June 21, 2024. CL Ex. 1, pp. 341-346.  \nDr. Bruffett reviewed pre-work-related injury MRIs dated November 9, 2011, and April 12, 2023. \nDr. Bruffett also reviewed post-work-related injury MRIs dated May 19, 2023, and February 9, \n2024. Dr. Bruffett also interviewed the patient and examined her in addition to reviewing all the \npertinent imaging. Id.  \nDr.  Bruffett  opined  although  the  work-related  incident  of  May  2,  2023,  caused  some \nworsening pain for the Claimant, he would say to “a reasonable degree of medical certainty based \non  the  objective  imaging  and  her  history  of  pre-existing  complaints  and  treatments  for  this \n\nJOHNSON H303428 \n \n \n8 \n \n \nproblem, specifically an injection 4 days prior to the event, the surgery that was performed and the \nsubsequent treatment was more than 51% related to her pre-existing disc herniation stenosis and \nradiculopathy that emanated from the L4-L5 motion segment.” Id. Dr. Bruffett further opined that \nhe saw “no objective evidence of an injury as a consequence of the incident that occurred on May \n2, 2023, at work.” Id. Dr. Bruffett also stated that Claimant is at maximum medical improvement \nand there is no applicable impairment rating that can be linked to her work-related incident. Id. Dr. \nBruffett  concluded  his  opinion  by  stating  that  he  has  not  placed any  restrictions  on  Claimant \nbecause of her work-related injury. Id.    \nOn January 6, 2025, Dr. Ryan Fitzgerald, Radiologist, also gave his findings and opinions \nregarding the provided records and imaging for the Claimant. Resp. Ex. 1, pp. 80-86. Dr. Fitzgerald \nreviewed medical documents and imaging before and after the May 2, 2023, work-related incident. \nId. Dr. Fitzgerald opined that the “MR imaging obtained in May 2023, was negative for any \nobjective  evidence  of  an  acute traumatic injury.” Id. Dr. Fitzgerald concluded that the “lumbar \ntreatments provided subsequent to the subject event were more likely than not attributable to Ms. \nJohnson’s (Claimant) long-standing lumbar degenerative disease and independent of the subject \nevent.” Id. \nAdjudication \nA. Whether Claimant sustained a compensable aggravation of a pre-existing injury to \nher back by specific incident. \n Under the Arkansas Workers’ Compensation Act, the employer takes the employee as the \nemployer  finds  her,  and  employment  circumstances  that  aggravate  pre-existing  conditions  are \ncompensable.   Nashville  Livestock  Comm.  v.  Cox,  302  Ark.  69,  787  S.W.2d  64  (1990).    A  pre-\nexisting  infirmity  does  not  disqualify  a  claim  if  the  employment  aggravated,  accelerated,  or \ncombined  with  the  infirmity  to  produce  the  disability  for  which  compensation  is  sought.   St. \n\nJOHNSON H303428 \n \n \n9 \n \n \nVincent Med. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996). \n “An  aggravation,  being  a  new  injury  with  an  independent  cause,  must  meet  the \nrequirements for a compensable injury.”  Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d \n900  (2000);   Ford  v.  Chemipulp  Process,  Inc.,  63  Ark.  App.  260,  977  S.W.2d  5  (1998).    This \nincludes  the  prerequisite  that  the  alleged  injury  be  shown  by  medical  evidence  supported  by \nobjective findings.  See Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 \n(2003).  Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), an aggravation must be proven by \na  preponderance  of  the  evidence.    This  standard  means  the  evidence  having  greater  weight  or \nconvincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove \nBarium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission.  White  v.  Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness  but  may  accept  and  translate  into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \nClaimant  has  not  proven  by  the  preponderance  of  the  evidence  that  she  sustained  an \naggravated  compensable  injury  to  her low back. Claimant  has  undergone  a  series  of  MRIs \nconcerning her back both pre and post work-related incident. Many doctors have compared the pre \nand  post  work  incident  MRI  records  and  have  ultimately  reached  a  united  conclusion  of  no \nobjective findings.  \n\nJOHNSON H303428 \n \n \n10 \n \n \nFor example, Dr. Stephen Paulus did a comparison between the May 19, 2023, MRI and \nthe April 12, 2023, MRI and found that Claimant’s L4-L5 was “unchanged.” Resp. Ex. 1, pp. 70-\n71. On June 7, 2023, Dr. Carle when asked about objective findings concerning Claimant’s alleged \nlow back injury responded by stating “none.” Resp. Ex. 1, p. 73. Dr. Carle further opined that there \nwere “negative studies for fracture or internal injuries.” Dr. Carle concluded his opinion by stating \nthat Claimant had “no measurable aggravation  to  pre-existing  spine  disorder.” Id. I  credit  Dr. \nPaulus and Dr. Carle’s opinion. \nFurthermore, an independent medical evaluation was obtained, by Respondents, from Dr. \nWayne Bruffett on June 21, 2024. CL Ex. 1, pp. 341-346.  As previously mentioned, Dr. Bruffett \nreviewed  pre-work-related  injury  MRIs  dated  November  9,  2011,  and  April  12,  2023. He also \nreviewed the alleged post-work-related injury MRIs dated May 19, 2023, and February 9, 2024. \nDr.  Bruffett  interviewed  the  patient  and  examined  her  in  addition  to  reviewing  all  the  pertinent \nimaging. Id.  \nDr.  Bruffett  opined  although  the  work-related  incident  of  May  2,  2023,  caused  some \nworsening  pain  for  the  Claimant, however, he  would go  on  to say to “a reasonable degree of \nmedical certainty based on the objective imaging and her history of pre-existing complaints and \ntreatments for this problem, specifically an injection 4 days prior to the event, the surgery that was \nperformed  and  the  subsequent  treatment  was  more  than  51%  related  to  her  pre-existing  disc \nherniation  stenosis  and  radiculopathy  that  emanated  from  the  L4-L5 motion segment.” Id. Dr. \nBruffett also opined that he saw “no objective evidence of an injury as a consequence of the \nincident that occurred on May 2, 2023, at work.” Id. He further stated that Claimant is at maximum \nmedical improvement and there is no applicable impairment rating that can be linked to her work-\nrelated  incident. Id. Dr.  Bruffett  concluded  his  opinion  by  stating  that  he  has  not  placed any \n\nJOHNSON H303428 \n \n \n11 \n \n \nrestrictions  on  Claimant  because  of  her  work-related  incident. Id.  I  credit  Dr.  Bruffett’s \nindependent medical evaluation report.  \nFinally,  on  January  6,  2025,  Dr.  Ryan  Fitzgerald,  Radiologist,  gave  his  findings  and \nopinions  regarding Claimant’s alleged injury.  Resp.  Ex.  1,  pp.  80-86.  Dr.  Fitzgerald  reviewed \nmedical documents and imaging before and after the May 2, 2023, work-related incident. Id. Dr. \nFitzgerald opined that the “MR imaging obtained in May 2023, was negative for any objective \nevidence of an acute traumatic injury.” Id. Dr. Fitzgerald concluded that the “lumbar treatments \nprovided subsequent to the subject event were more likely than not attributable to Ms. Johnson’s \n(Claimant) long-standing lumbar degenerative disease and independent of the subject event.” Id. I \ncredit Dr. Fitzgerald’s report. \nConsidering the above, I do not ignore -rather I find it unpersuasive- Claimants argument \nthat  those  who  reviewed  the  MRIs,  mainly  Dr.  Bruffett, needed  to also look  at  the  clinical \nimpressions  of  Dr.  Carle  along  with Claimant’s operative  report.  When  Dr.  Carle  was  directly \nasked about Claimant’s objective findings of a spinal injury, he concluded there were none. Res. \nEx.  1,  p.  73.  And as  previously  mentioned, Dr.  Carle further  opined  that  Claimant  had “no \nmeasurable aggravation to pre-existing spine disorder.” Id. Thus, his opinion fell in line with Dr. \nBruffett’s opinion. Moreover,  Dr.  Bruffett  had access  to  the  post  operative  MRI  of  February  9, \n2024. If the operative report was critical in his analysis of Claimant’s alleged back injury, he would \nhave  noted  such  in  his  report.  Therefore,  I  find  that  the  operative  report  was  not  critical  to  the \noverall analysis of whether there were objective findings of an aggravated low back injury in this \ncircumstance. \nBased on the reports of Dr. Paulus, Dr. Carle, Dr. Bruffett, and Dr. Fitzgerald, all whom I \nhave credited, I find that Claimant has failed to prove by the preponderance of the evidence that \n\nJOHNSON H303428 \n \n \n12 \n \n \nshe has objective findings of an aggravated work-related injury to her lower back; thus, her claim \nmust fail. See Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  \nMISCELLANEOUS ISSUES \n Based on my previous findings that Claimant has failed to prove she has objective findings \nof  an  aggravated  work-related injury, the  remaining issues  regarding  reasonable  and  necessary \nmedical  treatment,  temporary  total  disability  benefits, temporary  partial  disability  benefits, \npermanent partial disability benefits, and a controverted attorney’s fee are moot and will not be \naddressed in this opinion.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":23580,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H303428 JOYCE JOHNSON, EMPLOYEE CLAIMANT BOOKER T. WASHINGTON ELEM. SCHOOL, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARD ASSN., CARRIER/THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED FEBRUARY 26, 2025 Hearing before Administrative Law Judge, Ste...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["back","hip","knee","lumbar","sprain","fracture"],"fetchedAt":"2026-05-19T22:43:58.814Z"},{"id":"alj-H001761-2025-02-25","awccNumber":"H001761","decisionDate":"2025-02-25","decisionYear":2025,"opinionType":"alj","claimantName":"Monica Barnes","employerName":"Mckee Foods Corporation","title":"BARNES VS. MCKEE FOODS CORPORATION AWCC# H001761 February 25, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BARNES_MONICA_H001761_20250225.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BARNES_MONICA_H001761_20250225.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H001761 \n \nMONICA BARNES, Employee                                                                        CLAIMANT \n \nMCKEE FOODS CORPORATION, Employer                                          RESPONDENT \n \nCANNON COCHRAN MANAGEMENT SERVICES, Carrier                    RESPONDENT                                                                                \n \n \n OPINION FILED FEBRUARY 25, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On February  5,  2025,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on December 4, 2024 \nand a pre-hearing order was filed on that same date.  A copy of the pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The employee/employer relationship existed between the parties on March 31, \n2019. \n 3.   Respondents have controverted this claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n\nBarnes – H001761 \n 2 \n1.   Compensability of injury to claimant’s right knee in March 2019. \n2.    Related medical. \n3.    Temporary total disability benefits. \n4.     Statute of Limitations. \n The claimant contends she injured her right knee while working for respondent in \nMarch  2019.    She  requests  payment  of  medical  and  temporary  total  disability  from \nSeptember 15, 2022 through a date yet to be determined. \n The respondents contend that claimant did not sustain a compensable injury as \nthat  term  is  defined  by  Act  796  of  1993.    In  addition,  respondents  raise  the  Statute  of \nLimitations as an affirmative defense.  Respondents contend they are not responsible for \nany medical or indemnity benefits. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non December  4,  2024 and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2. Claimant’s claim for compensation benefits is barred by the statute of \nlimitations. \n \n \n\nBarnes – H001761 \n \n3 \n \n FACTUAL BACKGROUND \n Claimant began working for respondent on September 17, 2012, as a makeup line \noperator. She alleges that she injured her right knee on or about March 31, 2019. She \ntestified that on that day after fixing her machine “I stepped down off of the platform and \nI fell down and I could no longer get up.” She testified that she reported the incident to \nher supervisor and was taken to the nurse’s station.  \n Claimant was sent by respondent to Arkansas Occupational Health Clinic where \nshe was evaluated by Dalana Rice, APRN, on April 4, 2019. Her medical report contains \nthe following history of injury: \nWe  discussed  the  method  of  injury,  which  she  states  was \nwalking  from  one  area  to  another.  She  says  that  she  was \nwalking on a level surface when she suddenly felt a sharp pain \nin the right knee. She tried to continue working, but states that \nthe pain was too severe for her to continue standing, so she \nwas allowed to sit for the remainder of the shift. \n \n Her report also states: \nToday, Ms. Barnes is walking with a slight limp in the exam \nroom  and displays  difficulty  getting  on  the  exam  table. \nHowever, I observed her walking down the hall without a limp. \nWhen she saw me, she began limping again. \n \n Rice  indicated  that  she  did  not  feel  that claimant  had  a  work-related  condition \nbased on x-rays that revealed degenerative changes. She prescribed claimant over-the-\ncounter  medications  and  instructed  her  to  seek  additional  medical  treatment  from  her \nprimary care physician. \n The next medical report is from Dr. Matthew Coker dated January 20, 2020, which \nindicates that claimant gave a history of twisting her knee. Dr. Coker was concerned about \na possible meniscus tear and ordered an MRI scan. The MRI was performed on January \n\nBarnes – H001761 \n \n4 \n \n30, 2020, and did reveal a medial meniscus tear. Dr. Coker recommended surgery but \naccording to claimant, she could not afford the procedure. Claimant subsequently sought \nmedical treatment from Dr. Hamby and he performed partial knee replacement surgery \non September 15, 2022. \n Claimant has filed this claim contending that she suffered a compensable injury to \nher  right  knee  on  or  about  March  31,  2019.  She  requests  payment  of  related  medical \ntreatment and temporary total disability benefits. \n \nADJUDICATION \n Claimant contends that she suffered a compensable injury to her right knee while \nworking  for respondent  in  March  2019.  Respondent  contends  that claimant’s claim is \nbarred by the statute of limitations. Although respondent has controverted this claim, it \ndid send claimant to see Dalana Rice on April 4, 2019, and paid for that visit as reflected \nin   the   payment   record   submitted   into   evidence.   Therefore, claimant’s  claim  for \ncompensation is a claim for additional compensation benefits. Pursuant to A.C.A.  §11-9-\n702(b)(1)  a  claim for  additional  compensation  shall be barred unless  it  is  filed  with  the \nCommission within one year of the date of the last payment of compensation, or two years \nfrom  the  date  of  injury,  whichever  is  greater.  Furthermore, claimant  has  the  burden  of \nproving that she acted within the time allowed for filing a claim for additional compensation \nbenefits. Kent v. Single Source Transportation, Inc. 103 Ark. App. 151, 287 S.W. 3d 619 \n(2008). \n After reviewing the evidence in this case impartially and without giving the benefit \nof the doubt to either party, I find that claimant’s claim for compensation benefits was not \n\nBarnes – H001761 \n \n5 \n \ntimely filed and is therefore barred. \n As previously noted, claimant was seen by Dr. Coker on January 20, 2020, and he \nordered an MRI scan of claimant’s right knee. This scan was performed on January 30, \n2020. Claimant testified that after she got the results of the MRI scan, she took a copy of \nthe results to Vickie Owens, the employee health services administrator for respondent. \nOwens is responsible for the nurses at respondent and oversees workers’ compensation \nclaims.  Owens  testified  that  when claimant  gave  her  a  copy  of  the  MRI results, she \ninformed Claimant that the claim was being denied. Subsequently, respondent’s TPA filed \na First Report of Injury form dated March 23, 2020, with an injury date of March 31, 2019. \nRespondent also filed Form AR-2 indicating that it was controverting the claim. \n Following receipt of these forms, a notice was sent by the Commission dated April \n7, 2020, stating: \nTHIS IS TO LET YOU KNOW THAT A CASE-FILE ON YOUR \nWORKERS’ COMPENSATION CLAIM HAS BEEN OPENED \nAT  THE  COMMISSION.  IF  QUESTIONS  OR  PROBLEMS \nARISE, PLEASE CALL (501) 682-3930 OR 1 (800) 250-2511 \nAND ASK TO SPEAK TO A LEGAL ADVISOR, UNLESS YOU \nARE REPRESENTED BY AN ATTORNEY. \n \n Thereafter, claimant  continued  to  receive  medical  treatment  and  eventually \nunderwent  surgery  on  her  right  knee  by  Dr.  Hamby  on  September  15,  2022.  Claimant \nwas terminated by Respondent in May 2024. She testified that after her termination she \nwas  going  through  her  paperwork  and  noticed  the  form  letter  sent  to  her  by  the \nCommission dated April 7, 2020. She then wrote a letter to the Commission describing \nher injury and, in that letter, stated: “I am seeking advice and help regarding this matter.” \nThis letter was interpreted as a request for benefits and resulted in the scheduling of a \n\nBarnes – H001761 \n \n6 \n \nprehearing  conference  and  ultimately  the  hearing  that  was  conducted  on  February  5, \n2025. \n Thus, claimant’s  claim  for  compensation  benefits  was  not  filed  with  the \nCommission until May 2024. Claimant acknowledged this at the hearing: \nQ But prior to seeing that note after your termination, you \nhad  not  filed  any  request  for  benefits  with  the  Workers’ \nCompensation Commission; correct? \n \nA I don’t remember, but I think that is correct. \n \nQ And you were not terminated until sometime in May of \n2024; is that correct? \n \nA Yes. May of 2024 is when I received the letter from the \nHR. \n \n Claimant’s filing of the claim for workers' compensation benefits in May 2024, was \nmore than two years after the date of injury in March 2019 and it was also more than one \nyear from the date of last payment of compensation (claimant’s visit with Rice on April 4, \n2019). Therefore, her claim for compensation benefits was not filed within the statutory \ntime period as required by A.C.A. §11-9-702(b)(1). Accordingly, I find that claimant’s claim \nfor compensation benefits is barred by the statute of limitations. \n \nORDER \n Claimant’s claim for compensation benefits is barred by the statute of limitations. \nShe did not file a claim for compensation benefits until May 2024, more than year from \nthe date of last payment of compensation and more than two years from the date of her \nalleged  injury.  Therefore,  her  claim  for  compensation  benefits  is  hereby  denied  and \ndismissed.  \n\nBarnes – H001761 \n \n7 \n \nRespondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $320. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":10221,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H001761 MONICA BARNES, Employee CLAIMANT MCKEE FOODS CORPORATION, Employer RESPONDENT CANNON COCHRAN MANAGEMENT SERVICES, Carrier RESPONDENT OPINION FILED FEBRUARY 25, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:43:50.382Z"},{"id":"alj-H300963-2025-02-25","awccNumber":"H300963","decisionDate":"2025-02-25","decisionYear":2025,"opinionType":"alj","claimantName":"Riley Maxfield","employerName":"Csl Plasma","title":"MAXFIELD VS. CSL PLASMA AWCC# H300963 February 25, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MAXFIELD_RILEY_H300963_20250225.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MAXFIELD_RILEY_H300963_20250225.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H300963 \n \nRILEY MAXFIELD, Employee      CLAIMANT \n \nCSL PLASMA, Employer       RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier/TPA    RESPONDENT \n \n \n OPINION FILED FEBRUARY 25, 2025  \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in Springdale, \nWashington County, Arkansas. \n       \nClaimant  represented  by EVELYN  E.  BROOKS,  Attorney  at  Law, Fayetteville, Arkansas; \nalthough waiving appearance at the hearing. \n \nRespondent represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn May  3,  2023, Evelyn  E.  Brooks, claimant’s attorney, filed a Form AR-C  requesting \nvarious  compensation  benefits in  which  she  alleged  injuries  to  her  left  ring  finger  and  hand; \nhowever, no hearing was requested. No further action was taken in this claim. \nOn October 8, 2024, the respondents filed a Motion to Dismiss requesting that this claim \nbe  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for  January  21,  2025.  Notice  of \nthat hearing was sent to the claimant by certified mail, return receipt requested on November 25, \n2024. That  notice  was  returned  by  the  United  States  Postal  Department  with  the  notation, \n“Return to Sender.  No  Mail  Receptacle.  Unable to Forward.” Ms. Brooks indicated by  email \ndated  November  25,  2024, that  she  would  waive  her  appearance  at  the  hearing  and  further \nindicated that she had no objection to the Motion to Dismiss without prejudice.    \n\nMaxfield – H300963 \n \n After my review of respondent’s Motion to Dismiss, Ms. Brooks’ response  thereto  that \nshe had no objection to the motion to dismiss without prejudice, and the claimant’s failure to \nappear  at  the  scheduled  hearing,  as  well  as  all  other  matters  properly  before  the  Commission,  I \nfind that respondent’s Motion to Dismiss this claim should be and hereby is granted pursuant to \nA.C.A. §11-9-702(a)(4).  This dismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED.    \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2677,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H300963 RILEY MAXFIELD, Employee CLAIMANT CSL PLASMA, Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier/TPA RESPONDENT OPINION FILED FEBRUARY 25, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claim...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:43:54.562Z"},{"id":"alj-H402575-2025-02-25","awccNumber":"H402575","decisionDate":"2025-02-25","decisionYear":2025,"opinionType":"alj","claimantName":"Brandon Randall","employerName":"232 Rent LLC","title":"RANDALL VS. 232 RENT LLC AWCC# H402575 February 25, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RANDALL_BRANDON_H402575_20250225.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RANDALL_BRANDON_H402575_20250225.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H402575 \nBRANDON RANDALL, EMPLOYEE      CLAIMANT \n232 RENT LLC, EMPLOYER      RESPONDENT \nPREVISOR INSURANCE COMPANY, CARRIER/TPA  RESPONDENT  \n \nOPINION FILED FEBRUARY 25, 2025 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, on February 11, 2025. \nClaimant is represented by Kenneth A. Olsen, Bryant, Arkansas. \nRespondents are represented by Guy Alton Wade, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on February 11, 2025, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct. The claimant and his representative failed to appear at the time of the hearing, but \nthe  Commission  was  notified  by  an  email  response from the claimant’s representative \nthat they had in fact received the notice of the hearing. The claimant had filed a Form AR-\nC on or about April 17, 2024, contending that he had injured his lumbar spine while lifting \na water heater by himself. The respondents filed a Form AR – 2, on or about April 26, \n2024, accepting the claim as compensable and providing that the claimant was injured \nwhile in the course and scope of his employment. TTD benefits were being paid at the \ntime  of  the  Form  AR-2  filing, due  to  the  fact  the  claimant  was  placed  on  light  duty \nrestrictions by his treating physician and the respondents were not able to accommodate \nthe restrictions.   \n\nRANDALL – H402575 \n The respondents submitted discovery, which was never replied to, and a Motion \nto Dismiss was filed by the respondents on December 16, 2024, and appropriate notice \nwas provided to the claimant notifying him of a hearing on the Motion to Dismiss being \nset for February 11, 2025, in Little Rock, Arkansas. The claimant’s representative notified \nthe Commission by email that he had in fact received the notice of the hearing but neither \nthe claimant nor claimant’s representative appeared at the time of the hearing.  Guy Alton \nWade appeared on behalf of the Respondents at the time of the hearing and asked that \nthe matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondents, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2943,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402575 BRANDON RANDALL, EMPLOYEE CLAIMANT 232 RENT LLC, EMPLOYER RESPONDENT PREVISOR INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 25, 2025 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas, on February 11...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["lumbar"],"fetchedAt":"2026-05-19T22:43:56.702Z"},{"id":"alj-H403153-2025-02-24","awccNumber":"H403153","decisionDate":"2025-02-24","decisionYear":2025,"opinionType":"alj","claimantName":"Travon Clark","employerName":"Fusionsite Services LLC","title":"CLARK VS. FUSIONSITE SERVICES LLC AWCC# H403153 February 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CLARK_TRAVON_H403153_20250224.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CLARK_TRAVON_H403153_20250224.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H403153 \n \nTRAVON CLARK, EMPLOYEE   CLAIMANT \n \nFUSIONSITE SERVICES LLC, EMPLOYER RESPONDENT \n \nPMA MANAGEMENT CORPORATION/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED FEBRUARY 24, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents are represented by DAVID C. JONES, Attorney, Little Rock Arkansas \n \nOPINION/ORDER \n \n \n On May  14,  2024,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on May  1, \n2024.   Claimant was not represented by an attorney when the AR-C was filed, and is still pro se.   \nOn November 19, 2024, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for \nFebruary 13, 2025.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was  delivered  to  claimant on December  14, \n2024.    Claimant did not respond to respondent’s motion and did not appear in person at the hearing \non February 13, 2025.  \nI find it has been more than six months since prior to this hearing and that no request for a \n\nClark-H403153 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2070,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H403153 TRAVON CLARK, EMPLOYEE CLAIMANT FUSIONSITE SERVICES LLC, EMPLOYER RESPONDENT PMA MANAGEMENT CORPORATION/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED FEBRUARY 24, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washing...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:43:48.313Z"},{"id":"alj-H401198-2025-02-21","awccNumber":"H401198","decisionDate":"2025-02-21","decisionYear":2025,"opinionType":"alj","claimantName":"Quienton Rogers","employerName":"Warren Oil Company","title":"ROGERS VS. WARREN OIL COMPANY AWCC# H401198 February 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ROGERS_QUIENTON_H401198_20250221.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROGERS_QUIENTON_H401198_20250221.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H401198 \n \n \nQUIENTON C. ROGERS, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nWARREN OIL COMPANY,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nBERKLEY CASUATY CO., /BERKLEY \nINDUSTRIAL COMP., INSURANCE \nINSURANCE CARRIER/TPA                                                                               RESPONDENT                                                                      \n          \n                                                                                              \nOPINION FILED FEBRURARY 21, 2025   \n \nHearing held before Administrative  Law  Judge Chandra  L.  Black, in Forrest  City, St.  Francis \nCounty, Arkansas. \n \nThe Claimant, pro se, failed to appear for the dismissal hearing.         \n \nRespondents represented  by the  Honorable Melissa  Wood, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A  hearing  was  held  on February 14,  2025,  in  the above-referenced  matter pursuant  to \nDillard v. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), to determine \nwhether this case should be dismissed for failure to prosecute under the provisions of Ark. Code \nAnn. §11-9-702 (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.   \nNo testimony was taken. \nThe record consists of the transcript of February 14, 2025, hearing and the documents held \ntherein.  Commission’s Exhibit 1 consists of four (4) pages, which has been marked accordingly, \n\nROGERS – H401198 \n \n2 \n \nand the Respondents introduced into evidence an exhibit consisting of eight (8) pages, and it was \nthus marked Respondents’ Exhibit 1.     \n                                                               Background \n The procedural history of this claim is as follows:  \n The Claimant’s attorney filed  a  Form  AR-C  with  the  Commission  on  May  28,  2024, \nalleging that the Claimant sustained a compensable injury on February 12, 2024, while working \nfor  the  respondent-employer.    Per  this  document,  the  Claimant  reported  that  he  sustained  a \ncompensable injury to his right foot during a work accident.  The claim information section of the \nForm  AR-C shows that  the  Claimant  requested  only  initial  benefits.    These  benefits  included  a \nclaim   for   temporary   total   disability compensation,   temporary   partial   disability benefits, \nrehabilitation, medical benefits, and possibly benefits under Ark. Code Ann. §11-9-505 (a).    \n  The Respondents’ claims specialist filed a Form AR-2, with the Commission on February \n20, 2023, controverting  the  claim  in  its  entirety.  At  that  time,  the  respondent-insurance carrier \nstated position included the following: “The employee was not engaged in any work activity when \nthe incident occurred; the employee reported that he was taking a break when he jumped off the \ndock resulting in an injury; and the claim was not reported when it occurred and what he did was \na safety violation.”   \n There was no action whatsoever taken on the part of the Claimant to prosecute his claim or \npursue. \n However, on August 14, 2024, the Claimant’s attorney filed a motion to withdraw from \nrepresenting  the  Claimant  in  this  claim.    On  August  30,  2024,  the  Full  Commission  entered  an \norder granting the motion of Claimant’s attorney to withdraw as counsel. \n Since this time, the Claimant has not taken any action to pursue or resolve his claim.  \n\nROGERS – H401198 \n \n3 \n \nTherefore, on December 4, 2024, the Respondents filed a Motion to Dismiss for Failure to \nProsecute, with the Commission.  The Respondents notified the Claimant of said motion pursuant \nto a certificate of service sent via the United States Postal Service on December 3, 2024.      \nSubsequently, on December 6, 2024, my office sent a letter-notice informing the Claimant \nof the Respondents’ motion to  dismiss,  and  a  deadline of  twenty  (20)  days  for  filing  a  written \nresponse.  This  letter  was  sent  via  first-class  and  certified  mail.   Information  received  by  the \nCommission from the United States Postal Service confirms that they were unable to deliver this \nitem to the Claimant because it was “unclaimed”, and they were unable to forward it.  As a result, \non December 30, the Postal Service returned this notice to the Commission.  However, the notice \nsent by first-class mail has not been returned to the Commission.   \n Per a Hearing Notice generated on January 3, 2025, the Commission notified the parties \nthat this claim had been set for a hearing on the Respondents’ motion to dismiss.  Said dismissal \nhearing  was  scheduled  for  12:30 p.m., at  the St.  Francis  County  Courthouse,  in  Forrest City, \nArkansas.  This hearing notice was sent via first-class mail and certified mail. \nInformation received from the Postal Service shows that this item was also “undeliverable” \nand went “unclaimed.” Said notice was returned to the Commission on February 3, 2025.  Howe \nver, the notice sent via first-class mail has not been returned to the Commission.  Based on the \nforegoing, the evidence preponderates that the Claimant received notice of the dismissal hearing.     \nA hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \ndid not appear for the hearing.  However, the Respondents appeared through their attorney.   \nThe  Respondents’  counsel essentially argued that  the Claimant  has  failed  to timely \nprosecute his claim for workers’ compensation benefits.  As such, Counsel moved that this claim \n\nROGERS – H401198 \n \n4 \n \nbe  dismissed for  failure  to  prosecute under Ark. Code  Ann. §11-9-702,  and Commission Rule \n099.13.  \nAdjudication   \nTherefore, the statutory provision and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) states:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nFurthermore, Commission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute his claim since the filing of the Form \nAR-C more than six (6) months ago; and nor has he resisted the motion to dismiss his claim despite \nhaving received notice of the dismissal hearing.   \n\nROGERS – H401198 \n \n5 \n \nHere,  the  evidence  preponderates  that  the  Claimant  has clearly failed  to  prosecute  this \nclaim for initial workers’ compensation benefits.  Furthermore, I am convinced that the Claimant \nhas abandoned his claim.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant to Ark. Code \nAnn.§11-9-702,  and Commission  Rule  099.13,  this  claim  for initial workers’  compensation \nbenefits is hereby respectfully dismissed without prejudice to the refiling of it within the limitation \nperiod specified under the Arkansas Workers’ Compensation Act (the “Act”). \n                           FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. The Claimant’s former attorney filed a Form AR-C in May 2024.  Since this \ntime, the Claimant has not requested a hearing or indicated that he wishes \nto pursue this claim for workers’ compensation benefits.  \n \n3. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n4. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The evidence  preponderates  that  the Respondents’ motion to dismiss this \nclaim for lack of prosecution is well founded, and should be hereby granted, \nwithout  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and  Commission  Rule \n099.13, to the refiling of it within the limitation period specified by law.  \n \n                                                           ORDER \n \nBased  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’ compensation benefits.  This dismissal is made pursuant to the provisions of Ark. Code  \n\nROGERS – H401198 \n \n6 \n \nAnn. §11- 9-702, and Commission Rule 099.13, without prejudice to the refiling of this claim  \nwithin the limitation period specified under the Act. \nIT IS SO ORDERED. \n \n     \n                                                          ______________________________ \n                                                                                                CHANDRA L. BLACK \n                                                                                                Administrative Law Judge","textLength":10862,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H401198 QUIENTON C. ROGERS, EMPLOYEE CLAIMANT WARREN OIL COMPANY, EMPLOYER RESPONDENT BERKLEY CASUATY CO., /BERKLEY INDUSTRIAL COMP., INSURANCE INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRURARY 21, 2025 Hearing held before Administrative Law Judge C...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:43:46.252Z"},{"id":"alj-G807027-2025-02-18","awccNumber":"G807027","decisionDate":"2025-02-18","decisionYear":2025,"opinionType":"alj","claimantName":"David Burkholder","employerName":"Acme Brick Company","title":"BURKHOLDER VS. ACME BRICK COMPANY AWCC# G807027 February 18, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BURKHOLDER_DAVID_G807027_20250218.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BURKHOLDER_DAVID_G807027_20250218.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G807027 \n \nDAVID BURKHOLDER, Employee CLAIMANT \n \nACME BRICK COMPANY, Employer RESPONDENT NO. 1 \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n OPINION FILED FEBRUARY 18, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents No.  1 represented  by GUY  ALTON  WADE,  Attorney  at  Law, Little  Rock, \nArkansas. \n \nRespondent No. 2 represented by CHRISTY L. KING, Attorney at Law, Little Rock, Arkansas, \nalthough not appearing at hearing. \n \n STATEMENT OF THE CASE \n \n On November 21, 2024, the above captioned claim came on for a hearing at Fort Smith, \nArkansas.   A pre-hearing conference was conducted on September 23, 2024, and a Pre-hearing \nOrder  was  filed  on September  27,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  March \n20, 2018. \n\nBurkholder – G807027 \n \n-2- \n 3. The claimant sustained a compensable injury to his low back on or about  March 20, \n2018 \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $673.00 for temporary total disability benefits and $505.00 for permanent partial \ndisability benefits. \n 5. All prior opinions are final and res judicata. \n By agreement of the parties the issue to litigate is limited to the following: \n 1.  Whether  Claimant  is  entitled  to  medical  treatment  in  the  form  of  a  spinal  cord \nstimulator as recommended by his authorized treating physician. \n The claimant's contentions are as follows: \n“The    Claimant    contends    that    the    spinal    cord    stimulator \nrecommended  by  his  authorized  treating  physician  is  reasonably \nnecessary  and  therefore  the  respondents  should  be  ordered  to \napprove and pay for said stimulator.” \n \n Respondents’ No. 1’s contentions are as follows: \n“Respondents  contend  the  proposed  treatment  is  not  reasonable \nand  necessary  in  relation  to  the  compensable  injury  and  does  not \nmeet  the  required  pre-certification  required  in  accordance  with \nCommission  Rule  30.  As  an  alternative,  respondents  propose  an \nIME  to  determine  any  possible  future  reasonable,  necessary  and \nrelated treatment recommendation and/or plan.” \n \n The claimant in this matter is a 60-year-old male who sustained a compensable low back \ninjury on March 20, 2018. The claimant has a long history of treatment for his compensable low \nback injury, including both conservative and surgical care. The claimant’s treatment is well \ndocumented in Dr.  Claude  L.  Martimbeau’s  “independent  medical  evaluation”  report  dated \nNovember 14, 2024, and found at Respondents’ Exhibit 2. Dr. James Blankenship began treating \nthe claimant in January of 2019 and continues to treat the claimant at the time of the hearing in \n\nBurkholder – G807027 \n \n-3- \nthis  matter.  The  claimant  has  asked  the  Commission  to  determine  if  he  is  entitled  to  additional \nmedical treatment in the form of a spinal cord stimulator trial that has been recommended by Dr. \nBlankenship. \n The claimant’s wife, Cynthia Burkholder, was called as a witness at the hearing in this \nmatter. Ms. Burkholder was asked about falling events found in her husband’s medical records \non direct examination as follows: \nQ The  medical  records  talk  about  him  complaining  about \nfalls. Have you ever actually witnessed him fall? \n \nA Yes. \n \nQ And  has  the  frequency  of  those  falls  changed  any  between \nwhen they first started and now? \n \nA Yes, sir. They are definitely more frequent. \n \nQ Give  us  some  examples  of  situations  where  you  noticed \nhim fall. \n \nA Trying  to  get  up  out  of  his  recliner.  Trying  to,  you  know, \nget up and turn and when he turns it’s – you know, he will just go \ndown. Most of the time he will catch himself before he goes all the \nway down, but not always. \n \nQ Now,  although  his  primary  or  his  initial  injury  was  to  his \nlow back in March of 2018, the records indicate that in November \nof 2020, his leg gave out on him and he fell and hurt his mid back. \nDo you recall that? \n \nA Yes. \n \nQ So he is not always able to catch himself when he falls? \n \nA He is not always able to catch himself. \n \n The claimant also gave direct examination testimony about his falling events as follows: \n \nQ So  do  your  legs  just  give  way  out  from  under  you  or  does \nthe pain make you fall or what happens? \n\nBurkholder – G807027 \n \n-4- \n \nA I get a real sharp pain going down my butt cheek and down \nmy  leg  and  as  soon  as  that  pain  shoots  down – and  it  is  normally \nmy right leg – it goes completely out. (Witness snaps his finger.) It \nis that quick. \n \nQ Now, you underwent surgery on your mid back because of \na fall that you had in 2020; is that right? \n \nA That’s right. \n \nQ And have the falls continued since then? \n \nA Yes. \n \nQ Have  they  gotten  less  frequent  or  about  the  same  or  more \nfrequent? \n \nA I think I am falling more now. I am having to catch myself \nmore now than I did before. \n \n Additionally,  the  claimant  was  asked  about  his  belief  as  to  whether  his  condition  had \nimproved or worsened since 2021 on direct examination: \nQ Well,  let  me  just  suggest  to  you  that  there  is  a  medical \nreport from Dr. Heim that is dated October the 14\nth\n of 2021. So if \nthe report says that he examined you, you don’t have any reason to \nbelieve he didn’t, do you? \n \nA No.  My  wife  puts  all  my  appointments  and  everything  up \nand takes me. \n \nQ Okay.  In  his  report  at  that  point,  he  says  he  believes  you \nhad  an  18  percent  permanent  impairment  to  the  body  as  a  whole. \nYou were examined by another doctor that the insurance company \nsent  you  to  fairly  recently  and  that  doctor  says  you  have  a  35 \npercent  permanent  impairment  to  the  body  as  a  whole.  That  was \nDr.   Martimbeau.   Do   you   think   your   condition   has   changed \nbetween October of 2021 and today? \n \nA It seems like I hurt more now than I did then. \n \nQ So you think it is worse? \n \n\nBurkholder – G807027 \n \n-5- \nA I think it is definitely worse. \n \nQ What about your falls, are you falling about the same or are \nyou falling more? \n \nA I am falling more. \n \n During  testimony,  the  claimant  also  described  his  current  condition  while  on  direct \nexamination as follows: \nQ So  what  is  the  major  issue  that  you  have  got  in  terms  of \nyour  condition  right  now,  from  your  perspective?  What  is  your \nmain problem? \n \nA My  lower  back,  my  center  back,  it  is  constantly  in  pain.  I \nget  positioned  one  way  to  try  to  get  some  relief  from  my  lower \nback and then my center back starts hurting. Then I have to move a \ndifferent  way  to  try  to  get  my  center  back  from  hurting.  Then  my \nlower back gets hurting. I just can’t get comfortable. No matter \nwhat position I get into, I can’t stay there that long. \n \nQ Now,  the  psychology  report  says  that  you  haven’t  been \ntaking all of the pain medication that has been prescribed for you. \nIs that true? \n \nA I was – \n \nQ Just listen to my question. Is it true that you have not taken \nall of the pain medication? \n \nA I  have  taken  every  bit  of  the  pain  medicine  that  they  gave \nus. \n \nQ Okay.  Did  you  at  some  point  stop  taking  the  narcotic  pain \nmedication? \n \nA I don’t know what that is. \n \nQ Well,  did  some  of  the  medications  cause  you  some  side \neffects? \n \nA They would – \n \n\nBurkholder – G807027 \n \n-6- \nQ Okay.  Listen  to  my  question.  My  question  is  simply  did \nsome of the medications cause you some side effects? \n \nA Yes. \n \nQ Now, what were those side effects? \n \nA I  would  get  real  light-headed  and  it  would  make  me  fall  a \nlot more than normal when I was taking that medicine. And it gave \nme – it messed with my stomach. Made me feel like I was going to \nget sick. \n \nQ And were those the narcotic pain medications that you were \ntaking? \n \nA Yes. \n \nQ That were causing you to have problems? \n \nA Yes. \n \nQ And  when  those  issues  kept  bothering  you,  did  you  stop \ntaking  the  narcotic  pain  medication  and  continue  to  take  the  other \nstuff that your wife talked about? \n \nA Yes. \n \n The  claimant  was  seen  by  Dr.  James  Blankenship  on  May  25,  2023.  Following  is  a \nportion of that visit note: \nHPI: \nThe  patient  is  in  today  for  followup.  He  is  eight  months  out  from \nhis  surgical  intervention.  He  does  have  an  MRI  for  review  today. \nThe  MRI  was  actually  done  in  February.  We  reviewed  it  and  got \nhim back in. We told him to get back into some physical therapy as \nwell  as  get  and  injection.  Unfortunately  he  did  not  start  his \nphysical  therapy.  He  has  continued  to  do  his  home  exercises.  He \nsaw  Dr.  Cannon  for  an  LESI.  This  gave  him  very  minimal  relief. \nHe  is  still  having  low  back  pain  that  radiates  to  the  bilateral  hips, \nbilateral  buttocks,  and  goes  down  the  bilateral  lower  extremities. \nThe right is worse than the left. He is also having some neck pain \nand   significant   headaches.   Sitting,   walking,   and   standing   all \naggravate  his  pain.  He  states  he  has  decreased  strength  in  both \n\nBurkholder – G807027 \n \n-7- \nlegs,  right  greater  than  left.  Extension  aggravates  this  pain.  He  is \nstill taking Celebrex, Lyrica, and Baclofen as needed for pain. \n \n*** \nImpression: \nMr.  Burkholder  is  in  for  his  eight-month  postop  visit.  His  plain \nradiographs look good. I have reviewed his MRI in its entirety. He \namazingly  does  not  have  any  significant  advancement  of  adjacent \nsegment  disease  between  this  thoracotomy  fusion  and  his  lumbar \nfusion.  He  does  have  facet  arthropathy  but  nothing  of  marked \nsignificance.  There  are  no  gross  complications  of  the  orthopedic \nimplants  noted  and  the  pedicle  screws  appear  to  be  in  good \nposition. \n \n*** \nRecommendations: \nWe  will  set  him  up  for  an  injection.  I  also  recommended  he  get \nback  in  working  with  Steve  with  physical  therapy.  He  declined  to \ndo  that.  Mr.  Burkholder  says  that  his  lower  back  pain  is  the  same \nas it has been. He also has bilateral lower extremity pain. His ESI \nafforded  him  some  very  minimal  relief.  I  told  him  unfortunately  I \nthink we have done all we can do. He does not have any significant \nadjacent segment disease. His radiographs look good with no gross \ncomplications. I told him unfortunately I think he is falling into the \n10%  that  we  warn  preoperatively  that  might  not  do  well.  This \nreally  frustrated  him  because  the  surgery  that  has  a  larger  failure \nrate is the thoracotomy and he has done well with that. \n \nThat  being  said,  he  is  also  having  some  new-onset  headaches.  I \ntold  him  that  unfortunately  with  all  that  is  going  on,  I  would \nrecommend   that   we   get   a   cervical,   thoracic,   and   lumbar \nmyelogram.  I  will  review  this  and  we  will  call  him  with  a  further \ntreatment plan. \n \n On  January  25,  2024,  the  claimant  again  saw  Dr.  Blankenship  regarding  his  low  back \ncondition. Following is a portion of that medical report: \nImpression: \nHis chief complaint is lower back pain. The patient’s right leg is \ngiving out on him. We did an ACDF on him in May of 2022. We \ndid  a  myelogram  on  him  both  on  his  low  back  and  neck  in \nSeptember  of  last  year.  First  of  all  I  have  looked  at  his  cervical \nspine.  His  cervical  spine  sows  the  spinal  cord  is  completely \ndecompressed  with  no  residual  stenosis.  His  implant  is  slightly \n\nBurkholder – G807027 \n \n-8- \nanterior  to  C3-C4  with  some  subsidence  and  the  plate  is  slightly \nanteriorly placed. It does appear that he has solid fusion behind the \nimplant  which  would  be  indicative  of  solid  arthrodesis.  The  most \nimportant part of this his spinal cord is well-decompressed with no \nresidual  stenosis.  The  implant  has  been  like  this  in  his  cervical \nspine.  Postoperative  radiographs  a  year  ago  demonstrate  that  the \nanterior  placement  of  his  implant  is  unchanged  over  the  last  year. \nHis SI joint examination is completely negative. His intraoperative \nradiographs  do  demonstrate  that  the  plant  is  slightly  anterior.  I  do \nnot   think   it   has   really   changed   since   then.   His   piriformis \nexamination  is  also  negative.  His  myelogram  of  his  lumbar  spine \nlast  year  really  confirms  what  we  already  knew.  First  of  all  the \ndistal construct shows his spinal cord well-decompressed. He does \nnot  have  any  significant  stenosis.  His  sagittal  imaging  gives  the \nimaging of possible arachnoiditis but the axial images demonstrate \nwell-separated  nerve  roots.  He  does  not  have  any  significant \nstenosis at the C1-C2 and C2-C3 levels in between. At the surgical \nsite  just  as  his  MRI  demonstrates,  he  has  good  decompression.  I \nagree  with  the  reviewer  there  is  some  lucency  around  the  right \ncortical screw of L3 but he appears to have good bond formation in \nand  around  the  ENZA  implant  so  I  do  think  he  is  solidly  fused.  I \nhave  had  Dr.  Cannon  check  him  out  today.  I  cannot  find  a \nneurologic  etiology  for  his  leg  weakness.  What  I  do  know  is  Mr. \nBurkholder  has  always  been  real  solid.  We  did  a  thoracotomy  on \nhim.   He   did   fantastic   and   actually   did   not   have   any   really \nsignificant post thoracotomy pain. \n \nRecommendations: \nI have had Dr. Cannon check in on him today and see if he has any \nthoughts  about  the  pain  he  is  having.  It  is  around  the  L4-L5  level \nbut it is really axially located and is point tender. Dr. Cannon and I \nagree that the first step on his lower back would be to do a trigger \npoint injection in the muscle at the exact place where he is hurting. \nIf that helps and is still helping, we are going to get him in to see \nSteve to do some physical therapy. If it does not help at all, we are \ngoing  to  do  an  S1  joint  injection  higher  up  in  the  joint.  If  that \nworks  but  it  comes  back  we  can  always  talk  about  an  arthrodesis. \nIf that does not help at all I am going to put my thinking cap back \non. I do want to get EMG’s and nerve conductions on the right \nlower extremity. We will get him in to see Dr. Mike Morse and get \nthat done. I told him that unfortunately even if it shows something \nthere   is   not   much   we   can   do   about   it   but  it   will   be   good \ninformation.  Lastly  the  area  in  between  where  I  have  operated,  I \nthink it is time for us to discuss fusing that but this is a secondary \nplace  although  it  had  him  down  all  weekend  so  I  do  not  think  we \n\nBurkholder – G807027 \n \n-9- \nare  at  the  point  where  we  are  going  to  talk  bout  that  until  we  can \nfigure out what is going on with this spot in his lower back. \n \n On May 16, 2024, Dr. Blankenship authors a note regarding the claimant’s recent EMG \nand  nerve  conduction  tests.  In  that  same  note,  Dr.  Blankenship  discusses  a  dorsal  column \nstimulator for the claimant as follows: \nMr.   Burkholder   did   get   his   EMGs   and   nerve   conductions. \nUnfortunately, he cannot find any neurologist that is willing to see \na workers’ comp patient for all the headaches that you have to go \nthrough.   His   EMGs   did   not   demonstrate   any   evidence   of \nneuropathy  affecting  his  lower  extremity.  I  have  had  Rhonda  call \nand talk to David and tell him that really all I have left to offer him \nwould be a consideration for a dorsal column stimulator trial. If he \nis interested, they are going to run by and get the literature on this. \nIf he wants to proceed on with it, then we will start the ball rolling \nwith  his  workers’  comp  carrier  and  getting  his  psychological \ntesting. \n \n On  June  13,  2024,  the  claimant  is  again  seen  by  Dr.  Blankenship  and  has  a  discussion \nabout having a dorsal column stimulator trial. Following is a portion of that medical record: \nHPI: \nThe  patient  is  in  today  for  evaluation.  His  greatest  pain  complaint \nis  his  low  back  pain  that  radiates  to  bilateral  hips,  bilateral \nbuttocks,  and  goes  down  bilateral  lower  extremities  anterolateral \nand posterior. He states that his leg pain is equal. He rates it about \n70%  towards  the  worst  pain  imaginable.  He  is  also  still  having \nsome  neck  pain  but  states  that  that  is  very  minimal,  and  he  is \npleased  with  his  surgical  outcome.  He  was  given  a  dorsal  column \nstimulator  video  to  watch,  and  he  states  that  he  is  interested  in \nhaving a dorsal column stimulator trial. \n \n*** \nImpression: \nWe discussed in detail with Mr. Burkholder about a possible dorsal \ncolumn  stimulator  trial.  He  did  want  to  proceed  on  with  this,  but \nunfortunately his workers’ comp carrier made him come back in to \ntalk  with  me.  We  have  already  talked  about  this  in  detail.  He  has \nwatched the video. He wants to proceed on. \n \nRecommendations: \n\nBurkholder – G807027 \n \n-10- \nWe   need   to   start   the   ball   rolling   as   far   as   getting   his \nneuropsychological  evaluation  and  then  get  him  set  up  for  a  trial \ndate with possible permanent placement. I have told him that I may \nbe wrong and we possibly should be doing the 2 levels that are in \nbetween   his   thoracotomy   and   arthrodesis   in   his   lumbosacral \narthrodesis, but he just does not have a lot of disc space pathology \nat   this   level.   In   summary,   the   patient   has   postlaminectomy \nsyndrome with bilateral lower extremity pain and lower back pain. \nI  think  he  is  an  excellent  candidate  for  a  trial  and  possible \npermanent placement of a dorsal column paddle lead. He wants to \nproceed on with the workup. \n \n The respondent admitted a “physician advisor report” dated July 26, 2024, produced by \nGenex physician Dr. Luc Jasmin. That report considers the recommendation of Dr. Blankenship \nto  place  the  claimant  in  a  dorsal  column  stimulator  trial.  The  report  has  an  “adverse \ndetermination”  to  Dr.  Blankenship’s  recommendation,  based  on  the  lack  of  a  psychological \nevaluation.  This  report  has  little  value  as  a  psychological  evaluation  of  the  claimant  was \nperformed by Dr. Richard Back on September 16, 2024. Following is a portion of the evaluation \nreport: \nMr.  Burkholder’s  Paindex  score,  calculated  from  his  MMPI-2 \nprofile, is 15. This exceeds the cut-off score of 13, which indicates \nhe    is    a    poor    candidate    for    further    conventional    medical \ninterventions.  There  is  only  a  13  percent  chance  of  his  improving \nfrom   such   an   intervention.   This   does   not   mean   that   Mr. \nBurkholder’s symptoms are imagined, it means that overfocus on \nsymptoms  and  perhaps  intragenic  factors  have  made  him  a  poor \ncandidate. \n \nDIAGNOSTIC IMPRESSION: \nSomatic Symptom Disorder with predominant pain \n \nRECOMMENDATIONS: \n1. Consecutive intervention is recommended. \n2. Mr. Burkholder has been wary of pain medication, taking it only \nas  needed.  If  such  intervention  is  tried  again,  he  needs  to  take  his \nmedication on a fixed schedule, taking it (medicine) even when he \nis feeling “okay”, and waiting to the scheduled time even if his \npain  is  severe.  No  increase  in  dosage  should  be  entertained  after \n\nBurkholder – G807027 \n \n-11- \nawhile,  as  this  will  likely  lead  to  habituation,  which  is  what  he, \napparently, fears. \n \n The  claimant  was  again  seen  by  Dr.  Blankenship  on  October  24,  2024,  after  his \npsychological evaluation. Dr. Blankenship discusses that evaluation and his continued belief that \nthe claimant should “proceed on with dorsal column stimulation” as follows: \nHPI: \nThe  patient  is  in  today  for  followup.  We  had  offered  the  patient  a \ndorsal column stimulator. We sent him for a psych eval to see Dr. \nBack, and Dr. Back did not recommend he proceed with the dorsal \ncolumn.  His  notes  re  on  the  chart.  The  patient  still  wants  to \nproceed   on   with   the   dorsal   column   stimulator.   Conservative \ntreatment  has  not  helped  any,  and  he  has  chronic  pain  syndrome, \nlow back pain that radiates to bilateral hips, bilateral buttocks, and \ngoes  down  the  posterior  aspect  of  the  right  lower  extremity.  He \nrates  his  low  back  pain  anywhere  from  60%  to  70%  towards  the \nworst pain imaginable. \n \n*** \nImpression: \nDavid  Burkholder  returns  to  the  office  today.  The  reason  for  this \nvisit  is  both  requested  by  his  workers’  comp  carrier  and  his \nattorney,  Dr.  Eddie  Walker.  I  have  reviewed  Dr.  Back’s \nneuropsychological evaluation. It was Dr. Back’s opinion that he \nhad  only  a  13%  chance  of  improving  with  the  dorsal  column \nstimulator.  I  have  a  great  deal  of  respect  for  Dr.  Back  as  a \nneuropsychologist. I do also appreciate Dr. Back’s assessment that \nthis in now way means that Mr. Burkholder is not hurting. I agree \nwith Dr. Back Mr. Burkholder has been through quite a bit and has \nbeen  hurting  for  quite  some  time.  I  have  the  advantage  of  seeing \nthis patient frequently, as does Steve Flory, my physical therapist. \nThe gentleman has done absolutely wonderfully with every surgery \nwe have done until most recently. \n \nRecommendations: \nWith all due respect to Dr. Back, knowing Mr. Burkholder as well \nas  I  do,  my  offering  of  spinal  cord  stimulation  to  him  still  stands. \nThe  purpose  of  the  trial  is  to  see  if  he  gets  any  benefit.  I  do  feel \ncompletely comfortable that Mr. Burkholder will give us an honest \nand up front assessment of how he does during that week period of \ntime, which will give us an indication of how he is going to do for \na   while.   He   still   wants   to   proceed   on   with   dorsal   column \n\nBurkholder – G807027 \n \n-12- \nstimulation,  and  my  opinion  about  this  being  potential  benefit  to \nhim is unchanged. He understands, and it is my understanding that \nhe  has  a  court  date  to  go  over  all  of  this.  We  will  await  their \nfindings and proceed forward. \n \n The  respondent  sent  the  claimant  to  see  Dr.  Claude  L.  Martimbeau  for  what  Dr. \nMartimbeau termed as an independent medical evaluation on November 14, 2024. As previously \nstated,   Dr.   Martimbeau   includes   an   extensive   listing   of   medical   providers   and   medical \nprocedures  that  the  claimant  has  seen  or  undergone  for  his  compensable  low  back  injury.  Dr. \nMartimbeau also summarizes that treatment inside his 28-page report. Dr. Martimbeau also gives \nthe following diagnosis in his report: \nDIAGNOSES:  Status  post  back  injury,  and  back  pain;  status  post \nC3   through   C6   anterior   cervical   fusion;   status   post   T12 \ncorpectomy  and  arthrodesis  T11  to  L1;  status  post  L3  to  S1 \narthrodesis,  status  post  residual  upper;  and  lower  back  pain,  with \nreferred pain to the upper, and lower extremities. \n \nDr. Martimbeau also addresses a number of questions posed to him by the respondent. Following \nis a portion of those questions and responses: \n1.  Please  address  the  diagnosis,  history  of  injury  and  pre-existing \nconditions. \n \nThe diagnoses are: \n* status post back injury, and back pain \n* status post C3 to C6 anterior cervical fusion \n* status post T12 corpectomy/arthrodesis T11 to L1 \n*  Status  post  residual  upper  and  lower  back  pain,  with  referred \npain to the upper and lower extremities \n \nThe  history  of  the  injury  is  that  on  03/20/2018,  Mr.  Burkholder \nwas on a catwalk while stabilizing a 350 lb. burner block that was \nhanging from a chain. As he was lining it up, he twisted, felt a pop \nand  sharp  pain  in  his  lower  back,  and  immediately  fell  to  the \nground  due  to  the  pain,  possibly  hitting  the  handrail.  There  is  no \npre-existing condition. \n \n\nBurkholder – G807027 \n \n-13- \n2.   Does   medical   documentation   support   a   causal   relationship \nbetween the accident or injury? \n \nYes,  the  medical  documentation  supports  a  causal  relationship \nbetween the accident or injury. \n \n3.  Is  ongoing  treatment  (Orthopedic)  reasonable  and  medically \nnecessary for the accident or injury of record? \n \nYes,   the   ongoing   Orthopaedic   treatment   is   reasonable   and \nmedically necessary for the accident or injury of record. \n \n4.  If  ongoing  treatment  is  reasonable  and  medically  necessary, \nplease  five  [sic]  the  type,  frequency,  and  duration  for  continued \ncurrent treatment in your discipline. \n \nMr.  Burkholder  will  require  follow-up  treatment  for  his  chronic \nupper,  mid,  and  lower  back  pain  with  his  physician(s).  He  may \nrequire  medications,  antalgic  modalities,  LEISs,  and  possibly  a \nneuro-stimulator. Frequency is anticipated every 3 months, or more \nfrequently  if  Mr.  Burkholder  develops  an  acute,  or  sub-acute \ncondition regarding his upper, mid, and/or lower back. Duration of \ntreatment is indefinitely. \n \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n Dr. Back’s psychological evaluation of the claimant included a Paindex score of 15. That \nwas calculated from the claimant’s Minnesota Multiphasic Personality Inventory-2  (MMPI-2). \nThis is a low score; however, I do recognize it is a score that is higher than the cutoff score of 13 \nas noted by Dr. Back in his report. Dr. Blankenship addresses Dr. Back’s report directly in his \n\nBurkholder – G807027 \n \n-14- \nOctober  24,  2024,  visit  note,  stating,  “I  have  a  great  deal  of  respect  for  Dr.  Back  as  a \nneuropsychologist. I also appreciate Dr. Back’s assessment that this in no way means that Mr. \nBurkholder is not hurting. I agree with Dr. Back Mr. Burkholder has been through quite a bit and \nhas  been  hurting  for  quite  some  time.  I  have  the  advantage  of  seeing  this  patient  frequently,  as \ndoes  Steve  Flory,  my  physical  therapist.  The  gentleman  has  done  absolutely  wonderfully  with \nevery surgery we have done until most recently.” ... “With all due respect to Dr. Back, knowing \nMr. Burkholder as well as I do, my offering of spinal cord stimulation to him still stands.” \n Dr. Martimbeau, to whom the respondent sent the claimant for an “independent medical \nevaluation”  also  recognized  a  neuro-stimulator  and  other  treatments,  including  LESI  and \nmedications, as reasonable and medically necessary treatment for the claimant’s compensable \nlow  back  injury.  Dr.  Martimbeau  does  not  specifically  address  Dr.  Back’s  psychological \nevaluation  when  discussing  the  possibility  of  a  neuro-stimulator  for  the  claimant,  but  he  does \ninclude Dr. Back’s September 16, 2024, psychological evaluation as a document he reviewed for \nhis ”independent medical evaluation” of the claimant. \n Given that the claimant’s psychological evaluation was above the cutoff level according \nto Dr. Back’s report and that both Dr. Blankenship and Dr. Martimbeau still recommend a trial \nspinal cord stimulator after having considered Dr. Back’s report, I find that the trial spinal cord \nstimulator is reasonable and necessary medical treatment for the claimant’s compensable low \nback injury. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n\nBurkholder – G807027 \n \n-15- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nSeptember 23, 2024, and contained in a Pre-hearing Order filed September 27, 2024, are hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nmedical  treatment  in  the  form  of  a  spinal  cord  stimulator  trial  as  recommended  by  Dr. \nBlankenship. \n ORDER \nThe  respondents  shall  pay  the  costs  associated  with  the  spinal  cord  stimulator  trial \nrecommended by Dr. Blankenship. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":30565,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G807027 DAVID BURKHOLDER, Employee CLAIMANT ACME BRICK COMPANY, Employer RESPONDENT NO. 1 TRAVELERS INDEMNITY CO., Carrier RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED FEBRUARY 18, 2025 Hearing before ADMINISTR...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","neck","lumbar","cervical","thoracic"],"fetchedAt":"2026-05-19T22:43:39.862Z"},{"id":"alj-G306938-2025-02-18","awccNumber":"G306938","decisionDate":"2025-02-18","decisionYear":2025,"opinionType":"alj","claimantName":"Victoria Harris-Hardy","employerName":"Sebastian County Judge","title":"HARRIS-HARDY VS. SEBASTIAN COUNTY JUDGE AWCC# G306938 & G905668 February 18, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HARRIS-HARDY_VICTORIA_G905668-G306938_20250218.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRIS-HARDY_VICTORIA_G905668-G306938_20250218.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G306938 & G905668 \n \nVICTORIA HARRIS-HARDY, Employee CLAIMANT \n \nSEBASTIAN COUNTY JUDGE, Employer RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, Carrier RESPONDENT \n \n OPINION FILED FEBRUARY 18, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On November 21, 2024, the above captioned claim came on for a hearing at Fort Smith, \nArkansas.      A  pre-hearing  conference  was  conducted  on October  14,  2024,  and  a  Pre-hearing \nOrder  was  filed  on October  15,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  August \n22, 2023, and on July 31, 2019. \n 3. The claimant sustained a compensable injury to her right knee on or about August 22, \n2013. \n 4. The claimant sustained a compensable injury to her back on or about July 31, 2019. \n\nHarris-Hardy – G306938 & G905668 \n \n-2- \n 5. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $384.00  for  temporary  total  disability  benefits  and  $288.00  for  permanent  partial \ndisability benefits. \n 6. All prior opinions are res judicata. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is entitled to additional medical treatment for her compensable back \ninjury in the form of surgery as recommended by Dr. James Blankenship. \n 2. Whether Claimant is entitled to temporary total disability benefits from September 23, \n2024, to a date yet to be determined. \n 3. Whether Claimant’s attorney is entitled to an attorney’s fee. \n The claimant's contentions are as follows: \n“a.  The  Claimant  contends  that  her  authorized  treating  physician, \nDr.   James   Blankenship,   is   recommending   surgery   and   the \nrespondents  have  refused  to  authorize  said  surgery.  It  has  already \nbeen  determined  that  the  claimant  sustained  a  compensable  injury \nto her lumbar spine; therefore, the basis for the respondents denial \nis unknown. \n \nb.  The  Claimant  contends  that  she  will  be  entitled  to  temporary \ntotal disability benefits during any period of time during which she \nis  undergoing  treatment  by  Dr.  Blankenship  and  the  respondents \nare unable or unwilling to provide work within restrictions that Dr. \nBlankenship places on her while she is recovering from the effects \nof her injury. \n \nc.  The  Claimant  contends  that  her  attorney  is  entitled  to  an \nattorney’s fee since her back claim has already been controverted \nand   was   the   subject   of   a   prior   hearing   that   resulted   in   a \ndetermination that she sustained a compensable back injury.” \n \n The respondents’ contentions are as follows: \n“Surgery  by  Dr.  Blankenship  is  not  reasonable  or  necessary  or \nrelated to the 7-31-19 accident. Fortunately, the claimant had prior \n\nHarris-Hardy – G306938 & G905668 \n \n-3- \nMRI’s in 2017 and 2019 that showed only minimal disc bulging at \nL4-5. The latest MRI shows a new condition unrelated to the 2019 \naccident or a condition that is the natural process of aging and for \nwhich surgery has been proposed.” \n \n The  claimant  in  this  matter  is  a 58-year-old  female who  sustained  a  compensable  injury \nto  her  right  knee  on  August  22,  2013.  The  claimant  also  sustained  a  compensable  injury  to  her \nback  on  July  31,  2019.  This  administrative  law  judge  issued  an Opinion  on  May  6,  2020, \nregarding the compensability of the claimant’s July 31, 2019, back injury and her entitlement to \nmedical treatment. Following are the Findings of Fact and Conclusions of Law that have become \nthe law of this case: \n1. The  stipulations  agreed  to  by  the  parties  at  the  pre-\nhearing   conference   conducted   on   November   4,   2019, and \ncontained  in  a  Pre-hearing  Order  filed  that  same  date  and  hereby \naccepted as fact. \n \n 2.  The  claimant  has  proven  by  a  preponderance  of  the \nevidence  that  she  sustained  a  compensable  injury  to  her  back  on \nJuly  31,  2019,  in  the  form  of  an  aggravation  of  her  pre-existing \nback difficulties. \n \n 3. The  claimant  has  proven  by  a  preponderance  of  the \nevidence   that   she   is   entitled   to   medical   treatment   for   her \ncompensable  aggravation  of  her  pre-existing  back  difficulties; \nspecifically,   the   respondents   are   to   provide   the   claimant   an \nappointment with Dr. Luke Knox for a neurosurgical evaluation. \n \n The  claimant  now  asks  the  Commission  to  determine  if  she  is  entitled  to  medical \ntreatment for her compensable back injury in the form of surgical intervention as recommended \nby  Dr.  James  Blankenship.  Dr.  Blankenship  is  an  authorized  treating  physician  regarding  the \nclaimant’s compensable back injury. \n The  claimant  treated  for  her  back  injury  with  Dr.  David  Knox  in  July  of  2020.  The \nrespondent sent a letter to Dr. Knox on June 4, 2020, regarding his treatment of the claimant. On \n\nHarris-Hardy – G306938 & G905668 \n \n-4- \nJuly 27, 2020, Dr. Knox answered that letter and responded to questions posed by the respondent \nas follows: \n1. Within a reasonable degree of medical certainty, Officer Harris-\nHardy’s current symptoms appear to be related to the 7/13/19 work \ninjury.  Supportive  rationale  includes  her  history  and  continued \nfindings of numbness over the right lateral thigh. \n \n2. As this was related to her work injury, I have recommended that \nthe current treatment plan on Officer Harris-Hardy’s lumbar spine \nwould  include  pain  management.  I  believe  there  is  an  option  that \nshe may want to consider a spinal cord stimulator at some point. I \nwould  defer  to  the  Pain  Management  Service  concerning  these \nultimate treatment options. \n \n3.  I  do  not  believe  that  her  being  defined  as  maximum  medical \nimprovement at this time would be appropriate. \n \n4.  I  do  not  believe  that  defining  an  impairment  rating  at  this  time \nwould be appropriate as well. \n \nI  will  plan  to  follow  her  up  in  two  months  and  reevaluate  her  at \nthat time. \n \n In  August  of  2020  the  claimant  saw  Dr.  David  Cannon  for  pain  management.  This \ntreatment continued through January 11, 2024, and was primarily in the form of lumbar epidural \ninjections and transforaminal injections. In a visit note dated January 11, 2024, Dr. Cannon noted \nthat  the  epidural  injections  benefited  the  claimant  more  than  the  transforaminal  injections  and \nrecommended another epidural injection. Dr. Cannon also gave the claimant a surgical referral to \nDr. James Blankenship at that time. \n On April 15, 2024, the claimant was seen by Dr. Blankenship at the Neurosurgery Spine \nand Pain Management Center. Following is a portion of that visit note: \nHPI: \nLower back pain, bilateral hip and buttock pain, right greater than \nleft.  She  also  has  right  lower  extremity  pain.  She  has  decreased \nstrength   in   the   right   lower   extremity.   Standing   and   bending \n\nHarris-Hardy – G306938 & G905668 \n \n-5- \nincrease her pain with prolonged sitting. She also injured her knee \nwhen  she  was  injured  in  07/2019  pulling  a  garden  cart  back  into \nboxes  and  fell,  landing  on  her  coccyx.  She  has  had  multiple \ndifferent  injections  by  Dr.  Cannon  with  only  transient  relief.  She \nsaw  Dr.  Lowry  Barnes  for  her  knee  and  has  had  a  total  knee \nreplacement.   She   is   currently   taking   some   hydrocodone   and \noccasional  ibuprofen  but  does  not  tolerate  NSAIDs  or  gabapentin \nor  Lyrica.  Her  knee  injury  that  Dr.  Barnes  treated  her  for  was  an \nold workers’ comp injury. She has seen Dr. Knox in the past in \n2019.  Dr.  Knox  recommended  aquatic  therapy  and  a  sympathetic \nblock  which  is  pending,  I  guess.  According  to  this  report  that  we \nhave for her workers’ compensation carrier, Dr. Knox did not feel \nlike  her  problem  was  surgical,  although  I  do  not  have  his  note  to \nascertain  what  was  actually  said.  She  had  a  right  transforaminal \nESI  in  12/2022.  She  got  about  85%  relief  from  the  December \ninjection that lasted 4 months. \n \n*** \nImpression: \nHer   general   neurological   examination   reveals   some   soft   S1 \nfindings  with  paresthesias  in  the  right  S1  dermatome.  She  has \nabsent ankle reflexes bilaterally. I have reviewed the patient’s MRI \nin  its  entirety.  She  has  bilateral  foraminal  narrowing  secondary  to \ndisc space settling. At the L4-5 level she has lateral recess stenosis, \nalso  has  gross  annual  fissuring  bilaterally  in  the  extreme  lateral \ndisc  space.  She  also  has  an  extreme  lateral  disc  protrusion  at  the \nL3-4 level. This MRI was done in 07/2022. \n \nRecommendations: \nI  told  the  patient  it  is  really  impossible  for  me  to  outline an \nappropriate treatment course from here with the lumbar spine with \na  near  2-year-old  MRI,  so  I  told  her  we  need  to  get  an  MRI  and \nhave her come back in to see me. \n \nThere were some questions that her workers’ comp case manager \nhas forwarded to me. \n \n1.  Are  objective  findings  directly  related  to  the  mechanism  of \ninjury? The answer to that question is that I cannot really tell what \nher objective findings are today because I do not have a new MRI. \nShe  does  have  some  soft  S1  radicular  findings  which  certainly \ncould be coming from the neural compression that is noted on her \n2-year-old MRI, but I am not going to state anything with absolute \ncertainty about what is going on now based on a 2-year-old study. I \n\nHarris-Hardy – G306938 & G905668 \n \n-6- \ncertainly do not have any questions that the mechanism of injury is \nwhat has led to her current need for treatment. \n \n2. I will have to defer this until I see her back with a new MRI. \n \n On  June  5,  2024,  the  claimant  underwent  an  MRI  of  the  lumbar  spine  without  contrast. \nFollowing is a portion of that diagnostic report: \nIMPRESSION: \n1.  Severe  facet  arthropathy  with  bilateral  foraminal  stenosis  equal \nat  the  lumbosacrum  secondary  to  retrolisthesis  and  disc  space \nposteriorly. No neural compression is noted in the canal. \n \n2.  L4-5  severe  facet  arthropathy  with  mild  left  greater  than  right \nlateral recess stenosis. \n \n3.  Upper  lumbar  facet  arthropathy  with  no  significant  neural \nimpingement. \n \n On June 6, 2024, the claimant is seen by Dr. Blankenship for a follow-up visit after her \nlumbar MRI. Following is a portion of that visit note: \nHPI: \nThe patient is in today for followup. She does have a new MRI for \nreview today. She is still doing her physical therapy at Fort Smith. \nShe says it not afforded her any relief of the pain, but it is helping \nsome  with  her  strengthening.  She  is  having  low  back  pain  that \nradiates  to  bilateral  hips,  bilateral  buttocks,  and  goes  down  the \nbilateral   lower   extremities,   right   greater   than   left.   She   has \ndecreased  strength  in  the  right  leg.  She  rates  her  pain  about  90% \ntowards the worst pain imaginable. \n \n*** \nImpression: \nThe patient’s chief complaint is lower back pain, bilateral hip and \nbuttock pain with bilateral lower extremity pain, right greater than \nleft.  She  also  has  decreased  strength  in  the  right  lower  extremity. \nShe is back in today with a new MRI. As I indicated on her initial \nvisit,   she   does   have   retrolisthesis   at   the   lumbosacrum.   This \nexacerbates  slightly  in  extension,  reduces  slightly  in  flexion.  She \nalso  has  in  extension  some  slight  anterior  splaying  of  the  disc \nspace  at  L4-5  but  a  marked  reduction  in  flexion  that  at  her  very \nyoung  age  would  be  considered  segmentally  unstable.  I  have \n\nHarris-Hardy – G306938 & G905668 \n \n-7- \nreviewed  her  MRI  in  its  entirety.  She  does have  bilateral  lateral \nrecess  stenosis  at  L4-5  and  has  significant  foraminal  stenosis,  left \ngreater  than  right,  at  the  lumbosacrum.  Dr.  Lowry  Barnes  is  her \nnew  doctor.  He  has  done  a  total  knee  replacement  on  her.  She  is \ndoing  her  physical  therapy  in  Fort  Smith,  but  is  not  helping  her \npain, although she has had some improvement in her strength. \n \nOn  her  original  MRI,  she  did  have  gross  annular  fissuring  at  the \nL4-5  level.  It  is  not  as  apparent  on  this  MRI,  but  that  certainly \ncould   have   healed   over   the   last   several   years.   Her   SI   joint \nexamination is completely negative. Her piriformis examination is \nmarkedly positive. I told her that I do think that her malalignment \nand  instability  are  the  etiology.  Unfortunately,  we  are  fighting  5 \nyears  of  multiple  delays  in  her  treatment  with  different  positions \nwith her workers’ comp carrier delaying things. I do think her MRI \ndemonstrates   something   that   potentially   would   benefit   from \nsurgery. \n \n*** \nRecommendations: \nI  have  told  her,  before  we  start  talking  about  an  L4-5,  L5-S1 \narthrodesis, I would like for her to get in to see Dr. David Cannon \nafter  authorization  from  workers’  comp  for  consideration  of  a \npiriformis  injection.  I  am  going  to  have  Steve  write  out  some \nsuggestions  of  what  we  want  to  do  with  her  current  therapist  in \nFort Smith. I told her I want to see her back in 8 weeks after this is \ngiven  a  little  bit  more  time.  If  she  is  not  any  better  at  that  time, \nthen I think a discussion of an arthrodesis is not inappropriate. \n \n On  August  8,  2024,  the  claimant  was  again  seen  by  Dr.  Blankenship.  Following  is  a \nportion of that visit note: \nHPI: \nThe patient is in today for followup. Unfortunately, her workers’ \ncompensation carrier did not authorize any more physical therapy. \nShe  has  done  physical  therapy  in  the  past,  and  she  has  continued \non with her home exercises and stretches that they outlined for her. \nShe states that her pain is not changing. She still has low back pain \nto  bilateral  hips,  bilateral  buttocks.  The  right  is  greater  than  the \nleft.  She  has  decreased  strength  in  the  right  lower  extremity.  Pain \ngoes  down  the  bilateral  lower  extremities  to  the  knee  on  the  left \nand  down  to  her  foot  on  the  right.  Bending,  lying,  and  standing \naggravate  her  pain.  She  has  pain  with  Valsalva  maneuver.  She \ndenies any incontinence. She rates her pain about 80% towards the \n\nHarris-Hardy – G306938 & G905668 \n \n-8- \nworse pain imaginable. She had a right piriformis injection that did \ngive her some temporary relief in her leg pain but did not help her \nback, which we did not expect it to. \n \n*** \nDiagnosis: \nPostlaminectomy syndrome, not elsewhere classified. \n \nImpression: \nMs. Harris-Hardy was last seen in the office in early June. At that \ntime,  we  got  her  in  to  see  Dr.  Cannon  for  consideration  of \npiriformis  injection.  I  also  recommended  her  to  do  more  physical \ntherapy, but her workers’ comp carrier would not authorize it. She \ndid get her piriformis injection. She did have some transient relief. \nShe failed another round of conservative treatment. Her piriformis \ninjection did afford her some relief but only with her leg pain, and \nher  back  pain  is  more  significant.  The  patient  has  loss  of  normal \nlumbar   lordosis   with   marked   disc   space   settling   and   severe \nforaminal  stenosis  at  the  lumbosacrum.  She  also  has  marked \nposterior   splaying   of   the   disc   space   in   flexion   with   slight \nretrolisthesis  in  neutral  position  and  exacerbation  in  extension, \nindicative  of  a  gross  segmental  instability.  We  had  previously \ndiscussed    the    possibility    of    a    lumbar    arthrodesis    and \ndecompression. She does have significant foraminal stenosis at L4-\n5,  left  greater  than  right.  At  the  lumbosacrum,  she  does  have \nforaminal   stenosis   and   midline   disc   protrusion   with   annular \nfissuring. The L3-4 level does show some moderate facet changes \nbut no significant stenosis. \n \nRecommendations: \nI told her, having failed conservative measures, albeit limited with \nher workers’ compensation carrier, that it is time for us to discuss \nwhat  type  of  surgical  intervention  will  be  needed.  I  have  offered \nher  an  anterior  lumbar  interbody  arthrodesis  at  the  lumbosacrum. \nShe would then undergo an L4-5 LLIF as a second stage same-day \nprocedure.   She   would   then   undergo   an   LLIF   at   L4-5   for \nstabilization  of  her  unstable  disc  at  this  level.  She  would  also \nundergo    a    left-sided    decompression    with    extreme    lateral \ndecompression  at  the  L4-5  level.  The  medical  rationale  for  this  is \nshe  does  have  gross  segmental  instability  at  the  L4-5  level.  She \nalso  has  severe  foraminal  stenosis  at  the  lumbosacrum  and  disc \nspace  collapse.  We  need  to  elevate  her  neural  foramen,  and  the \nonly  way  to  do  this  is  with  interbody  implant  at the  lumbosacrum \nand stabilize her at L4-5 with an LLIF. Posterior pedicular fixation \nwill    supplement    her    anterior    arthrodesis.    After    a    lengthy \n\nHarris-Hardy – G306938 & G905668 \n \n-9- \ndiscussion,   the   patient   does   want   to   proceed   with   surgical \nintervention. \n \n On  August  14,  2024,  the  claimant  was  seen  by  Dr. Lowry Barnes  regarding  her \ncompensable knee injury. Following is a portion of that progress note: \nHistory  of  Present  Illness:  Victoria E.  Hardy  is  a  57  y.o.  female \npatient   Who   returns   for   evaluation   of   right   knee   pain   and \ndiscussion  of  triple  phase  bone scan  results  of  the  right  knee. \nOriginally  I  saw  her  as  an  independent  medical  evaluation.  She \ncontinues to have daily right knee pain. Pain is worse with weight-\nbearing.  What  weight-bearing  she  has  sharp  stabbing  proximal \nmedial tibia pain. \n \nRecently she saw Dr. Blankenship for low back pain. He discussed \nsurgical intervention of the lumbar spine which she is considering. \n \n*** \nAssessment & Problems addressed: \nPainful   right   total   knee   replacement   due   to   instability   and \nloosening of tibial component \nSmoker \nChronic narcotic use \n \n*** \nPlan: \nDiscussed  with  the  patient  that  triple  phase  bone  scan  results  did \nshow an increased update around the components of the right knee. \nConcerned for tibial component loosening. I am willing to proceed \nwith  revision  right  total  knee  arthroplasty  with  the  understanding \nby  the  patient  that  there  is  a  chance  we  may  make  her  better  with \nrevision  surgery  but  there  is  no  guarantee  and  we  may  make  her \nworse. Patient would like to proceed with revision right total knee \narthroplasty.  She  will  need  to  stop  smoking  6  weeks  then  we  will \nnicotine  test  her  and  if  her  nicotine  is  negative  then  we  will \nschedule surgery. We also discussed with the patient that smoking \nsensation prior to back surgery very important to decrease risk post \nop complications especially with wound healing. We did not know \nif  Dr.  Blankenship  discussed  this  with  the  patient  or  not.  We  also \ndiscussed tapering off narcotics so she will be off pain medication \n6 weeks prior to surgery. \n \nMy team discussed results with the case manager out in the waiting \nroom. The case manager stated that they could nicotine test her in \n\nHarris-Hardy – G306938 & G905668 \n \n-10- \nFort Smith to save her a trip down to Little Rock. We agree. Work \nnote was given to the patient not to lift more than 10 lb. and to be \nable to stand or sit as needed. \n \n On  September  23,  2024,  Dr.  Blankenship  issued  two  notes  regarding  the  claimant.  One \nnote, found at Respondents’ Exhibit 1, page 9, states: \nWe  are  currently  working  on  getting  her  surgery  authorized.  We \nare  going  to  do  postoperative  the  patient.  She  and  I  discussed \nsomewhat  on  her  visit  about  the  work  she  was  having  to  do. \nAlthough  it  may,  and  it  is  questionable  if  it  does,  technically  fall \nunder  the  restrictions,  she  is  currently  having  to  work  in  a  hot \nwarehouse, and it is exacerbating her pain. Since we have  already \ndecided to head toward surgery, having her come into surgery with \nworsening pain is not good. I have recommended that she stay off \nwork until we get her recovered after surgery. \n \nThe other note is found at Claimant’s Exhibit 1, page 90, and states: \nPlease be advised that the above patient has been a regular patient \nof this office and has been treated at our office. \n \nPlease  excuse  this  patient  from  her  obligation  to  appear  at  work \nuntil after patient has recovered from surgery. \n \nBoth notes are signed by Dr. Blankenship. \n On  October  31,  2024,  Dr.  Blankenship  once  again  sees  the  claimant.  Following  is  a \nportion of that visit note: \nHPI: \nThe patient is in today for followup. The patient continues to have \nlow back pain that radiates to bilateral hips, bilateral buttocks, goes \ndown the posterior bilateral lower extremities, left to the knee, the \nright  goes  all  the  way  down  into  her  foot.  She  has  decreased \nstrength  in  her  right  leg.  We  offered  surgical  intervention.  She \nelected to proceed, but unfortunately her workers’ compensation \ncarrier  has  not  approved  this  yet.  She  rates  her  pain  about  90% \ntowards  the  worst  pain  imaginable.  She  is  also  having  worsening \nknee pain. She sees Dr. Barnes, who has recommended a right total \nknee revision, but Dr. Barnes thinks that she should have her back \nsurgery  done  first.  Workers’  comp  has  not  approved  her  back \n\nHarris-Hardy – G306938 & G905668 \n \n-11- \nsurgery but has approved her knee surgery, stating that her lumbar \nproblems are age related. \n \n*** \nImpression: \nMs.   Hardy   has   already   seen   me,   and   we   discussed   surgical \nintervention with an arthrodesis at M4-5 and L5-S1 with unilateral \npedicular  fixation  on  the  left.  The  patient  also  has  knee  problems, \nand  Dr.  Barnes  has  talked  to  her  about  possibly  doing  a  revision, \nwhich actually has been approved by her workers’ comp folks, but \nDr.  Barnes,  the  patient,  and  myself  feel  like  she  could  have  her \nlower  back  down  and  rehabbed  prior  to  doing  a  right  total  hip \nrevision. Her workers’ compensation carrier states that her back \nproblems are “age related.” \n \nThe  patient  states  that  she  has  had  some  back  problems  over  the \nyears   but   nothing   of   this   significance,   and   this   exacerbation \nhappened immediately after her injury. I have reviewed her studies \nagain.  As  indicated  previously,  the  patient  has  a  midline  disc \nprotrusion  with  annular  fissuring  at  the  lumbosacrum.  Her  plain \nradiographs  demonstrate  the  patient  has  retrolisthesis  at  the  L4-5 \nand  L5-S1  levels.  These  slightly  exacerbate  the  extension  and \ncompletely   reduce   in   flexion,   indicative   of   gross   segmental \ninstability.  The  patient  most  certainly  does  have  degenerative \nchanges  in  her  back.  I  would  be  surprised  if  someone  of  her  age \ndid not have degenerative changes. Historically, the pain that she is \ncurrently having originated with her work injury. \n \nRecommendations: \nIn  summary,  I  agree  completely  with  Dr.  Barnes  and  the  patient \nthat  fixing  her  back  first  and  then  considering  her  total  knee \nrevision is the better approach to take. I told her that my offering of \nsurgical  intervention  in  her  lower  back  is  unchanged.  I  told  her  I \nstill  feel  like,  based  on  a  reasonable  degree  of  medical  certainty, \nthat  her  need  for  treatment  both  conservatively  up  and  until  now \nand  surgically  now  failing  conservative  treatment  is  still  directly \nrelated to her work-related injury. \n \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n\nHarris-Hardy – G306938 & G905668 \n \n-12- \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n The  claimant’s  medical  record  and  testimony  lay  out  a  compelling  case  for  a \ncompensable  back  injury  that  has  failed  conservative  treatment  and  is  left with only  surgical \nintervention to improve the claimant’s condition. While lengthy at times, Dr. Blankenship lays \nout   in   detail   the   reasoning   and   anatomical   cause   for   the   surgical   intervention   he   has \nrecommended.  Dr.  Blankenship  also  believes,  “based  on  a  reasonable  a  degree  of  medical \ncertainty,  that  her  need  for  treatment  both  conservatively  and  up  until  now [October  31,  2024] \nand  surgically  now  failing  conservative  treatment  is  still  directly  related  to  her  work-related \ninjury.” The claimant is able to prove by a preponderance of the evidence that she is entitled to \nthe surgical recommendations of Dr. Blankenship as they are reasonable and necessary treatment \nfor her compensable back injury. \n The  claimant  has  asked  the  Commission  to  determine  whether  she  is  entitled  to \ntemporary total disability benefits from September 23, 2024, to a date yet to be determined. \nIn order to be  entitled to temporary total disability benefits, the claimant  has the burden \nof proving by a preponderance of the evidence that he remains within his healing period and that \nhe suffers a total incapacity to earn wages as a result of his compensable injury. Arkansas State \nHighway  &  Transportation  Department  v.  Breshears, 272  Ark.  244,  613  S.W.  2d  392  (1981).\n The  claimant’s  failure  of  conservative  treatment and  her  current  need  for  surgical \nintervention  due  to  her  compensable  back  injury  place  the  claimant  in  a  continued  state  of  a \nhealing period. As to the claimant’s total incapacity to earn wages, Dr. Blankenship in two \nseparate  notes,  written  on  September  23,  2024,  removes  the  claimant  from  work.  One  note, \n\nHarris-Hardy – G306938 & G905668 \n \n-13- \nfound at Respondents’ Exhibit 1, page 9, discusses the claimant’s current working restrictions \nand  circumstances  which  include  the  technicalities  of  her  restrictions  and  working  in  a  hot \nwarehouse. Dr. Blankenship felt this combination caused a worsening of pain which in his words \n“is not good” coming into surgery. The other note, found at Claimant’s Exhibit 1, page 90, in a \nstraight-forward  manner,  removes  the  claimant  from  work  beginning  September  23,  2024.  Dr. \nBlankenship  has  seen,  treated,  and  evaluated  the  claimant  on  multiple  occasions.  Given  his \nextensive  knowledge  of  the  claimant  and  her  condition  I  agree  with  Dr.  Blankenship’s \nassessment that the claimant should be removed from work beginning September 23, 2024, until \na date when she has recovered from surgery. The claimant is able to prove by a preponderance of \nthe evidence that she is  entitled to temporary total disability benefits from September 23, 2024, \nto a date yet to be determined. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nOctober  14,  2024,  and  contained  in  a  Pre-hearing  Order  filed October  15,  2024,  are  hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nadditional medical treatment for her compensable back injury in the form of surgical intervention \nas recommended by Dr. James Blankenship. \n\nHarris-Hardy – G306938 & G905668 \n \n-14- \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \ntemporary total disability benefits from September 23, 2024, to a date yet to be determined. \n 4.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  her  attorney  is \nentitled  to  an  attorney’s  fee  in  this  matter  commiserate  with  the  Arkansas  Workers’ \nCompensation Act and the benefits awarded herein. \n ORDER \nThe   respondents shall   pay   the   cost   associated   with   the   surgical   intervention \nrecommended by Dr. Blankenship and its aftercare.  \nThe  respondents  shall  pay  the  claimant  temporary  total  disability  benefits  beginning \nSeptember 23, 2024, to a date yet to be determined.  \nThe respondents shall pay to the claimant's attorney the maximum statutory attorney's fee \non the benefits awarded herein, with one half of said attorney's fee to be paid by the respondents \nin addition to such benefits and one half of said attorney's fee to be withheld by the respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":30951,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G306938 & G905668 VICTORIA HARRIS-HARDY, Employee CLAIMANT SEBASTIAN COUNTY JUDGE, Employer RESPONDENT AAC RISK MANAGEMENT SERVICES, Carrier RESPONDENT OPINION FILED FEBRUARY 18, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Seba...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["knee","back","lumbar","hip","ankle"],"fetchedAt":"2026-05-19T22:43:42.026Z"},{"id":"alj-H404490-2025-02-18","awccNumber":"H404490","decisionDate":"2025-02-18","decisionYear":2025,"opinionType":"alj","claimantName":"Angel Wallace","employerName":"Wendy’s LLC","title":"WALLACE VS. WENDY’S LLC AWCC# H404490 February 18, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WALLACE_ANGEL_H404490_20250218.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALLACE_ANGEL_H404490_20250218.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H404490 \n \n \nANGEL MARIE WALLACE,  \nEMPLOYEE                                                                                                                CLAIMANT \n \nWENDY’S LLC,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nTRAVELERS CASUALTY INSURANCE \nCOMPANY OF AMERICA,   \n(TPA)                                                                                                                      RESPONDENT                                                 \n          \nOPINION FILED FEBRUARY 18, 2025     \n \nHearing held before Administrative Law Judge Chandra L. Black, Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant  represented  by  the  Honorable  Mark  Alan  Peoples,  Attorney  at  Law,  Little  Rock \nArkansas.  Mr. Peoples waived his appearance at the hearing. \n \nRespondents represented  by the  Honorable Zachary  F.  Ryburn, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on February 4, 2025, in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702, and/or Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \nThe record consists of the transcript of February 4, 2025, hearing and the documents held \ntherein.  The Commission’s Exhibit consists of eight (8) pages, including correspondence from the \n\nWALLACE-H404490 \n \n2 \n \nClaimant’s attorney,  which  was marked  accordingly, and Respondents’ Exhibit 1 consisting of \nfour (4) numbered pages of pleadings, correspondence, and other documents related to this claim. \n                                                             Procedural History \n On July 15, 2024, the Claimant’s attorney filed with the Commission a claim for Arkansas \nworkers’ compensation benefits via a Form AR-C.  Per this document, the Claimant alleged that \nhe sustained injuries during the course and in the scope of his employment with the respondent-\nemployer, on June 22, 2024.  Per this document, the Claimant alleged that she injured her neck, \nboth shoulders, and both wrists in a work-related accident.  The Claimant requested only initial \nbenefits.  In  fact, her attorney checked  off all the boxes for  every  conceivable initial workers’ \ncompensation benefit allowed under the law.    \n  The respondent-insurance-carrier filed a Form AR-2 with the Commission on August 27, \n2024.  Per this form, the carrier accepted the Claimant’s injuries in the form of “bilateral shoulder \nsprains and bilateral wrist sprains.”   \n Since  this  time,  the  Claimant  has  not tried to  pursue  or  otherwise  resolve  her claim.  \nMoreover, nor has the Claimant made a bona fide request for a hearing since the filing of the Form \nAR-C.  \n Therefore, on January 28, 2025, the Respondents filed a Motion to Dismiss for Failure to \nProsecute,  with  the  Commission,  along  with a certificate  of service  to  the Claimant’s attorney.  \nSpecifically, the Respondents  mailed  a  copy  of  said  motion  to  the Claimant’s attorney via  the \nUnited States Postal Service.  \nMy  office sent  a letter to  the Claimant  and  her  attorney on January  30,  2025, informing \nthem of the Respondents’ motion, and a deadline of twenty (20) days to file a written response.   \nSaid letter was mailed to the Claimant’s attorney and her by both first-class and certified mail.  \n\nWALLACE-H404490 \n \n3 \n \n   The Claimant’s attorney sent the following e-mail to my office on January 30, 2025, “We \nwill not oppose the motion, provided dismissal is w/o prejudice.  We will ask to be excused from \nany hearing on the motion.”  As a result, the Claimant’s attorney was excused from attending the \ndismissal hearing.     \n Pursuant to a Hearing Notice dated January 31, 2025, my office notified the parties that the \nmatter  had  been  set  for  a  hearing  on the Respondents’ motion  to dismiss.    Said  hearing  was \nscheduled  for February  4,  2025, at the Arkansas Workers’ Compensation Commission in Little \nRock, Arkansas. \n The hearing was held as scheduled.  The Claimant and her attorney did not appear for the \nhearing.  Hence, as previously noted above, the Claimant’ counsel was excused from attending the \nhearing.   Nevertheless, the Respondents’ counsel appeared  at  the  hearing  and argued that  the \nClaimant has failed to prosecute her claim for workers’ compensation benefits.  More specifically, \nthe Respondents’ counsel noted that the Claimant has not taken any action to advance her claim \nsince the filing of the Form AR-C, which was done more than six (6) months ago.  Counsel further \nnoted that the Claimant’s attorney has indicated that he does not object to the claim being dismissed \nwithout prejudice.  Therefore, the Respondents’ attorney asked that this claim be dismissed without \nprejudice pursuant to Ark. Code Ann. §11-9-702, and/or Commission Rule 099.13.  \n      Adjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in the  \nRespondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4):  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n\nWALLACE-H404490 \n \n4 \n \nAdditionally, Commission Rule 099.13 reads:  \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue her claim \nfor workers’ compensation benefits, but she has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute her claim for workers’ compensation \nbenefits since the filing of Form AR-C, over more than six (6) months ago; and nor has she resisted \nthe motion for dismissal of her claim.  In fact, the Claimant’s attorney has consented to her claim \nbeing dismissed without prejudice.    \nHence, to summarize, I hereby find that the evidence preponderates that the Claimant has \nfailed  to promptly prosecute this claim for workers’ compensation benefits.  Therefore,  after \nconsideration of the evidence before me, I am compelled to find that the Respondents’ motion to \ndismiss for a lack of prosecution to be well taken.   \nAccordingly, I thus find that pursuant to the provisions of Ark. Code Ann.§11-9-702, and \nCommission  Rule  099.13,  this  claim for workers’ compensation benefits is  hereby  respectfully \ndismissed without prejudice to  the  refiling  within  the limitation  period specified  under  the \nArkansas Workers’ Compensation Act (the “Act”). \n \n\nWALLACE-H404490 \n \n5 \n \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The Claimant’s attorney has consented to her claim being dismissed without \nprejudice.  Hence, the evidence preponderates that the Claimant has failed \nto prosecute her claim pursuant to the relevant provisions of Ark. Code Ann. \n§11-9-702, and Commission Rule 099.13. \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for lack of  prosecution  is \nhereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \n                                                           ORDER \n \n Based  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’  compensation  benefits. This   dismissal   is per Ark.   Code   Ann.   §11-9-702, and \nCommission  Rule  099.13, without  prejudice to  the  refiling  of  this claim  within the limitation \nperiod specified under the Act. \n          IT IS SO ORDERED. \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":9887,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H404490 ANGEL MARIE WALLACE, EMPLOYEE CLAIMANT WENDY’S LLC, EMPLOYER RESPONDENT TRAVELERS CASUALTY INSURANCE COMPANY OF AMERICA, (TPA) RESPONDENT OPINION FILED FEBRUARY 18, 2025 Hearing held before Administrative Law Judge Chandra L. Black, Little Rock, Pu...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["neck","shoulder","wrist"],"fetchedAt":"2026-05-19T22:43:44.101Z"},{"id":"alj-G807462-2025-02-14","awccNumber":"G807462","decisionDate":"2025-02-14","decisionYear":2025,"opinionType":"alj","claimantName":"Carmalith Snider","employerName":"Arkansas Dep’t Of Correction / Ouachita River Unit","title":"SNIDER VS. ARKANSAS DEP’T OF CORRECTION / OUACHITA RIVER UNIT AWCC# G807462 February 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SNIDER_CARMALITH_G807462_20250214.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SNIDER_CARMALITH_G807462_20250214.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G807462 \n \n \nCARMALITH SNIDER,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nARKANSAS DEP’T OF CORRECTION/ \nOUACHITA RIVER UNIT, \nEMPLOYER                                                                                              RESPONDENT NO. 1  \n \nSTATE OF ARKANSAS/ \nPUBLIC EMPLOYEE CLAIMS DIVISION \nCARRIER/TPA                                                                                         RESPONDENT NO. 1 \n \nARKANSAS WORKERS’ COMPENSATION COMMS’N, \nSPECIAL FUNDS DIVISION                                                                 RESPONDENT NO. 2 \n                                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED FEBRUARY 14, 2025 \n \n \nHearing conducted on Thursday, February 13, 2025, before the Arkansas Workers’ Compensation \nCommission  (the Commission),  Administrative  Law  Judge (ALJ)  Mike  Pickens,  in El  Dorado, \nUnion County, Arkansas. \n \nThe claimant, Ms. Carmalith Snider, of Camden, Ouachita County, Arkansas, failed and/or refused \nto appear at the hearing.  \n \nRespondent   No.   1   was represented   by   the   Honorable Charles   H.   McLemore,   State   of \nArkansas/Public Employee Claims Division (Respondent No. 1, or PECD), Little Rock, Pulaski \nCounty, Arkansas. \n \nRespondent  No.  2,  the  Special  Funds  Division  of  the  Arkansas  Workers’  Compensation \nCommission (Respondent No. 2, or the Special Funds Division), is represented by the Honorable \nChristy L. King, who waived her appearance at the hearing.  \n \n \nSTATEMENT OF THE CASE \n \n           A hearing was conducted on Thursday, February 13, 2025, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 \nLexis Replacement) and Commission Rule 099.13 (2025 Lexis Replacement). \n\nCarmalith Snider, AWCC No. G807462 \n2 \n \n          The claimant herein previously was represented by counsel, the Honorable Laura Beth York \nof the Rainwater, Holt & Sexton law firm in Little Rock, Pulaski County, Arkansas. By unanimous \norder  filed July  1,  2021, the  Full  Commission  granted Ms. York’s request  to  withdraw  as  the \nclaimant’s counsel. Thereafter, by motion filed with the Commission on October 4, 2024 (MTD), \nRespondent  No.  1 requested  this  claim  be  dismissed  for  lack  of  prosecution  pursuant  to  the \naforementioned statute and Commission rule.  \n        In compliance with the applicable law the claimant was provided due and legal notice of the \nRespondent  No.  1’s MTD, as  well  as  the  date,  time,  and  location  of  the  subject  hearing.  The \nclaimant did not respond in writing to Respondent No. 1’s motion in any way, and she failed and/or \nrefused to appear at the subject hearing. Respondent No. 1’s MTD contains an accurate recitation \nof the relevant facts, which I hereby incorporate by reference as set forth word-for-word herein. \n(Respondent No. 1’s Exhibit 1 at 4-5; 1-10). \n       The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n       Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2025 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on Respondent No. 1’s \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe  evidence  introduced  at  the  hearing and  contained  in  the  record conclusively  reveals  the \nclaimant has failed and/or refused to prosecute her claim at this time. \n     Therefore, after a thorough consideration of the facts, issues, the applicable law, representations \nof credible counsel, and other relevant matters of record, I hereby make the following: \n\nCarmalith Snider, AWCC No. G807462 \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having been  mailed due  and  legal  notice  of Respondent No. 1’s MTD without \nprejudice filed October 1, 2024, as well as notice of the date, time, and place of the subject \nhearing, the  claimant failed  and/or  refused  to  respond  in  any  way  to the MTD, and she \nfailed and/or refused to appear at the hearing. Therefore, the claimant is deemed to have \nwaived her right to a hearing on Respondent No. 1’s MTD. \n \n3. Respondent No. 1’s MTD without prejudice filed October 1, 2024, should be and hereby \nis GRANTED; and this claim is dismissed without prejudice to its refiling pursuant to the \ndeadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and Commission \nRule 099.13. \n \n      This Order shall not be construed to prohibit the claimant, her attorney, any attorney she may \nretain in the future, or anyone acting legally and on her behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n      If they have not already done so, Respondent No. 1 hereby is ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n      IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nCarmalith Snider, AWCC No. G807462 \n4","textLength":5859,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G807462 CARMALITH SNIDER, EMPLOYEE CLAIMANT ARKANSAS DEP’T OF CORRECTION/ OUACHITA RIVER UNIT, EMPLOYER RESPONDENT NO. 1 STATE OF ARKANSAS/ PUBLIC EMPLOYEE CLAIMS DIVISION CARRIER/TPA RESPONDENT NO. 1 ARKANSAS WORKERS’ COMPENSATION COMMS’N,","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:43:37.702Z"},{"id":"full_commission-H204217-2025-02-13","awccNumber":"H204217","decisionDate":"2025-02-13","decisionYear":2025,"opinionType":"full_commission","claimantName":"Terri Sparks","employerName":"North Arkansas College","title":"SPARKS VS. NORTH ARKANSAS COLLEGE AWCC# H204217 February 13, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Sparks_Terri_H204217_20250213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Sparks_Terri_H204217_20250213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n CLAIM NO. H204217 \n \n \nTERRI H. SPARKS, EMPLOYEE                           CLAIMANT \n \n \nNORTH ARKANSAS COLLEGE, EMPLOYER                  RESPONDENT  \n \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/TPA                                        RESPONDENT \n \n \nORDER FILED FEBRUARY 13, 2025 \n \nBefore the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nAttorney at Law, Little Rock, Arkansas. \n \n \nORDER \n \n This matter is currently before the Full Commission on the Claimant’s \nMotion for Extension to File Brief.  \n After consideration of claimant’s motion, with no objection by the \nrespondents, and all other matters properly before the Commission, the \nCommission finds that the claimant’s motion should be and is hereby \ngranted.  \n  \n\nSparks-H204217  2 \n \n IT IS SO ORDERED. \n    ___________________________________                                                                  \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ____________________________________          \n    M. SCOTT WILLHITE, Commissioner \n \n    _____________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1337,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204217 TERRI H. SPARKS, EMPLOYEE CLAIMANT NORTH ARKANSAS COLLEGE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT ORDER FILED FEBRUARY 13, 2025 Before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant repres...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.600Z"},{"id":"alj-H400361-2025-02-12","awccNumber":"H400361","decisionDate":"2025-02-12","decisionYear":2025,"opinionType":"alj","claimantName":"Alexia Sandidge","employerName":"Wendy’s Old Fashioned Hamburgers","title":"SANDIDGE VS. WENDY’S OLD FASHIONED HAMBURGERS AWCC# H400361 February 12, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SANDIDGE_ALEXIA_H400361_20250212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SANDIDGE_ALEXIA_H400361_20250212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H400361 \n \n \nALEXIA SANDIDGE, EMPLOYEE CLAIMANT \n \nWENDY’S OLD FASHIONED HAMBURGERS, \nEMPLOYER RESPONDENT \n \nTRAVELERS CASUALTY INS. CO. OF AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 12, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 6, 2025, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Amy C. Markham, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on February  6,  2025, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   In \norder  to  address  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1) \n(Repl. 2012)(Commission must “conduct the hearing  . . . in a manner which best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe  record documents from the Commission’s file on the claim,  consisting  of 17 \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \n\nSANDIDGE – H400361 \n \n2 \n \nArk.  App.  LEXIS 549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed on February 1, 2024, Claimant \npurportedly suffered injuries at  work  on November  30,  2023,  when  she  slipped \nand  fell  onto  a  freshly-mopped  floor.  According  to the  Form  AR-2 that  was also \nfiled on February 1, 2024, Respondents controverted the claim on the basis of the \nalleged lack of objective medical findings of an injury. \n On January 18, 2024, through then-counsel Wesley Cottrell, Claimant filed \na Form AR-C.  Therein, she alleged that she was entitled to the full range of initial \nand additional benefits as a result of injuries to her “shoulders, back, and body as \na whole” that she purportedly sustained in the fall.  Accompanying this form was a \ncompleted   pre-hearing   questionnaire.\n1\n  Respondents’  counsel entered   her \nappearance  before the  Commission by  way  of  a  letter  received on February  7, \n2024.  In that same correspondence, she represented that her clients’ position on \nthe claim had not changed. \n On April  9,  2024, Cottrell moved  for  permission  from  the  Commission  to \nwithdraw  from  his  representation  of  Claimant.    In  an  Order  entered  on May  3, \n2024, under AWCC Advisory 2003-2, the Full Commission granted the motion. \n \n \n1\nThe prehearing questionnaire’s filing notwithstanding, the record does not \nshow  that  Claimant’s  then-counsel  affirmatively  requested  a  hearing;  and  the \nquestionnaire  in  and  of  itself  was  not  treated  as  such by  the  Clerk  of  the \nCommission. \n\nSANDIDGE – H400361 \n \n3 \n \n The  record  reflects  that  nothing  further  took  place  on  this  claim  until \nNovember  22, 2024.   On that date, Respondents filed the  instant motion, asking \nfor  dismissal  of  the  claim under  AWCC  R.  099.13 and  Ark.  Code  Ann. § 11-9-\n702(a)(4) (Repl.  2012).    Therein,  they  alleged  that  more  than  six  months  had \nelapsed  since  the  filing  of  the  claim  without  a  hearing  request  being  made  by \nClaimant.  My office wrote Claimant on November 25, 2024, asking for a response \nto the motion within 20 days.  The letter was sent by first class and certified mail \nto the Conway,  Arkansas address of  Claimant as  shown  on  her  Form  AR-C.  \nClaimant signed for the certified letter on November 27, 2024; and the first-class \nletter  was  not  returned.    However,  no  response  to  the  Motion  to  Dismiss  was \nforthcoming from Claimant. \n On December 17, 2024, a hearing on the Motion to Dismiss was scheduled \nfor February 6, 2025, at 9:30 a.m. at the Commission in Little Rock.  The Notice of \nHearing was sent to Claimant via first-class and certified mail to the same address \nas  before.  Claimant again signed  for the  certified  letter—this  time on  December \n18,   2024.      And   as   before, the first-class   letter was not returned   to   the \nCommission. \n The   hearing   on   the Motion   to Dismiss   proceeded   as   scheduled   on \nFebruary  6,  2025.    Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents appeared  through  counsel  and  argued  for  dismissal  under the \naforementioned authorities. \n\nSANDIDGE – H400361 \n \n4 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for  initial \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996).  In turn, Ark. Code Ann. § 11-9-702(a)(4) (Repl. 2012) reads: \n\nSANDIDGE – H400361 \n \n5 \n \n(4) If within six (6) months after the filing of a claim for compensation \nno  bona  fide  request  for  a  hearing  has  been  made  with  respect  to \nthe  claim,  the  claim may,  upon  motion  and  after  hearing,  be \ndismissed   without   prejudice   to   the   refiling   of   the   claim   within \nlimitation periods specified in subdivisions (a)(1)-(3) of this section. \n \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin  pursuit  of it (including  appearing  at  the February  6,  2024, hearing  to  argue \nagainst its dismissal)  since the filing  of  her  Form  AR-C on January  18,  2024.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause  of  this  finding,  it  is  unnecessary  to  address  the  application  of  §  11-9-\n702(a)(4). \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the appellate courts  have \n\nSANDIDGE – H400361 \n \n6 \n \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n2\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8566,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H400361 ALEXIA SANDIDGE, EMPLOYEE CLAIMANT WENDY’S OLD FASHIONED HAMBURGERS, EMPLOYER RESPONDENT TRAVELERS CASUALTY INS. CO. OF AMER., CARRIER RESPONDENT OPINION FILED FEBRUARY 12, 2024 Hearing before Administrative Law Judge O. Milton Fine II on February 6, ...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:43:35.561Z"},{"id":"full_commission-H400805-2025-02-11","awccNumber":"H400805","decisionDate":"2025-02-11","decisionYear":2025,"opinionType":"full_commission","claimantName":"Chase Boyd","employerName":"Cwc Mechanical LLC","title":"BOYD VS. CWC MECHANICAL LLC AWCC# H400805 February 11, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Boyd_Chase_H400805_20250211.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Boyd_Chase_H400805_20250211.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \nCLAIM NO. H400805 \n \nCHASE BOYD, EMPLOYEE    CLAIMANT \n \n \nCWC MECHANICAL LLC, EMPLOYER                                 RESPONDENT \n \n \nACCIDENT FUND INSURANCE COMPANY OF \nAMERICA, CARRIER                                                             RESPONDENT \n \n \nOPINION FILED FEBRUARY 11, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Affirmed and Adopted. \n \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed October 1, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission \nhas jurisdiction over this claim. \n  \n2. The stipulations set forth above are reasonable and are \nhereby accepted.  \n \n\nBoyd-H400805    2 \n \n \n3. Claimant has not proven by a preponderance of the \nevidence that he sustained a compensable injury to his \nback by specific incident.  \n \n4. Claimant has not proven by a preponderance of the \nevidence that he sustained a compensable injury to his \nback by gradual onset.  \n \n5. Because of Findings of Fact/Conclusions of Law Nos. 3 \nand 4, supra, the remaining issues—whether Claimant \nis entitled to temporary total disability benefits and to a \ncontroverted attorney’s fee, and when did he furnish \nnotice of his alleged compensable injury—are moot \nand will not be addressed. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the October 1, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n\nBoyd-H400805    3 \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n  The Administrative Law Judge (hereinafter referred to as \n“ALJ”) found that the Claimant has not proven by a preponderance of the \nevidence that he sustained a compensable injury to his back by specific \nincident or gradual onset and that Claimant is not entitled to temporary total \ndisability benefits nor a controverted attorney’s fee.  The Claimant appeals \nthis decision.  After conducting a thorough review of the record, I would find \nthat the Claimant proved he sustained a compensable injury to his back by \nspecific incident, and that Claimant is entitled to temporary total disability \nbenefits. \n1. The Claimant has proven by a preponderance of the evidence that \nhe has sustained a compensable injury to his back by specific \nincident.  \nTo establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \n\nBoyd-H400805    4 \n \n \nwas caused by a specific and identifiable time and place of occurrence.  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002).  \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. § 11-9-508(a). \nReasonable and necessary medical services may include those necessary \nto accurately diagnose the nature and extent of the compensable injury; to \nreduce or alleviate symptoms resulting from the compensable injury; or to \nmaintain the level of healing achieved; or to prevent further deterioration of \nthe damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).  \n On December 10, 2023, Claimant was working for Respondent and \nwas handed a 10-foot-long piece of pipe weighing approximately 40-60 \npounds and, as he was trying to maneuver it into position, felt a pop in his \nback.  Claimant reported that he had begun to experience back pain to \nrepresentatives of Respondent.  The Respondent’s did not provide medical \ntreatment for the Claimant following his injury until Claimant reported his \n\nBoyd-H400805    5 \n \n \nwork injury again on January 25, 2024.  Following this accident, the \nClaimant continued to work and his condition further deteriorated.  \n Claimant began receiving medical treatment for his back injury on \nJanuary 26, 2024, in the form of chiropractic care as recommended by the \nRespondent.  At this chiropractic visit, the Claimant gave a history of his back \ninjury on December 11, 2023. Although the Claimant’s recollection of the \nactual date he experienced back pain was not exact, I find that his testimony \nas to the manner in which the work accident took place was credible. The \nClaimant was then referred to his primary care physician for evaluation of his \nlower back condition.  On January 31, 2024, Dr. Jonathan Cain wrote a letter \nto Respondent stating that the Claimant may return to work on February 1, \n2024, on light duty pending more diagnostic testing.  On February 12, 2024, \nClaimant is seen by Dr. Christina Carl who diagnosed the Claimant with \nlumbago and observed in his lower back on x-ray.  Claimant is then referred \nfor an MRI for a definitive diagnosis, physical therapy, and given the work \nstatus of “may return to work on 2/22/2025 with light duty restrictions until \nphysical therapy is completed.”  On February 26, 2024, Dr. Christian Carl \nwrites a letter on Claimant’s condition stating “Due to recent testing and \nappointments, Chase Boyd can not do any kind of bending or flexing of his \nback.  Mr. Boyd can also not lift anything over 25 pounds.  He can return to \nwork with these restrictions, until physical therapy is completed.”  On March \n\nBoyd-H400805    6 \n \n \n18, 2024, Claimant is diagnosed with lumbosacral radiculopathy at S1 as the \nMRI of the lumbar spine shows “small disc protrusion at L5-S1 contracting \nthe right S1 nerve root.  No significant spinal canal or foraminal stenosis.” \nClaimant is then referred to neurosurgery and given the work restriction of \n“may return to work on 4/18/2024 or until Neurosurgery clears him for work.”  \nOn April 15, 2024, Claimant is seen by Dr. Carie Wells.  Dr. Wells reviews the \nMRI taken in February 2024 and finds “L3/4 diffuse bulge; L4/5 bilateral LRS \nsecondary to facet and disc disease; L5/S1 interspace narrowing with right \nparacentral disc  bulge  minimal.”    Dr.  Wells diagnoses  the  Claimant  with \nlumbar radiculopathy and states the Claimant is to “remain off work until \ncompleting PT and PM due to increased pain with pressure on lower back.”  \nA doctor is not required to be absolute in an opinion nor are the \nmagic words “within a reasonable degree of medical certainty” even \nrequired to be used by the doctor for an injury to be related to the work \naccident.  Freeman v. Con-Agra Frozen Foods, 344 Ark. 296 (2001).  \nRather, the medical opinion must simply be more than speculation. Id.  If a \ndoctor renders an opinion about causation of a workers’ compensation \ninjury with language that goes beyond possibilities and establishes that \nwork was the reasonable cause of the injury, this should pass muster. Id.  \nHere, the Claimant was seen by multiple physicians who visualized disc \nbulges at L3/4, and disc protrusions at L5/S1 and treated Claimant for \n\nBoyd-H400805    7 \n \n \nmuscle spasms.  The Claimant relates to these physicians that the pain \nbegan in early December of 2023.  There is no credible evidence in the \nrecord that the Claimant experienced difficulty performing his employment \nduties or that these injuries were present before the Claimant felt a pop in \nhis back on December 10, 2023.   Therefore, I find that the Claimant has \nproven by a preponderance of the evidence that he suffered a compensable \ninjury to his back on December 10, 2023.  The Claimant is entitled to \nreasonable and necessary medical care as required by Ark. Code Ann. § \n11-9-508 for his compensable injury, including treatment he has received to \ndiagnose the nature and extent of his compensable injury and any \ntreatment he may need for his compensable injury in the future.  \n2. Claimant is entitled to temporary total disability from January 31, \n2024, until a date yet determined.  \nTemporary total disability benefits are appropriate where the employee \nremains in the healing period and is totally incapacitated from earning wages.  \nArk. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  \nClaimant was taken off of work on January 31, 2024, and was subsequently \ntaken off work by multiple other physicians after each appointment he had for \nhis compensable back injury.  The last note in the record by a physician states \nClaimant is to “remain off work until completing PT and PM due to increased \npain with pressure on lower back.”  There is no evidence in the record that \n\nBoyd-H400805    8 \n \n \nClaimant has finished physical therapy or pain management thus his work \nrestrictions are still in place.  Therefore, I find that Claimant is entitled to \ntemporary  total  disability  from  January  31,  2024,  until  a  date  yet  to  be \ndetermined. \nBased on these findings, the Claimant’s attorney would be entitled to \na controverted attorney’s fee on the indemnity benefits found here within.  \nLastly, it is mentioned by the Respondent’s that they were not given \nproper notice of the injury.  This argument lacks merit as the Claimant told \nhis co-workers and supervisor on the date of injury and followed up with his \nsupervisor before filing this workers’ compensation claim.  The Claimant then \nfilled out an AR-N on January 29, 2024.  The Respondent was given notice \nof the Claimant’s injury in accordance with Ark. Code Ann. § 11-9-701.  \n  For the reasons stated above, I respectfully dissent. \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":11024,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H400805 CHASE BOYD, EMPLOYEE CLAIMANT CWC MECHANICAL LLC, EMPLOYER RESPONDENT ACCIDENT FUND INSURANCE COMPANY OF AMERICA, CARRIER RESPONDENT OPINION FILED FEBRUARY 11, 2025 Upon review before the FULL COMMISSION in Little Rock...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T22:29:44.575Z"},{"id":"full_commission-H304343-2025-02-11","awccNumber":"H304343","decisionDate":"2025-02-11","decisionYear":2025,"opinionType":"full_commission","claimantName":"Diana Coleman","employerName":"Youth Home, Inc","title":"COLEMAN VS. YOUTH HOME, INC. AWCC# H304343 February 11, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Coleman_Diana_H304343_20250211.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Coleman_Diana_H304343_20250211.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H304343 \n \nDIANA COLEMAN, EMPLOYEE    CLAIMANT \n \n \nYOUTH HOME, INC., SELF-INSURED, EMPLOYER           RESPONDENT \n \n \nRISK MANAGEMENT RESOURCES, TPA                           RESPONDENT \n \n \nOPINION FILED FEBRUARY 11, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE WILLARD PROCTOR JR., \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed October 8, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. 1. The AWCC has jurisdiction over this claim. \n  \n2. The previously noted stipulations are accepted as fact.  \n \n3. The claimant failed to prove by a preponderance of the \nevidence that she suffered a compensable injury.  \n \n\n \nColeman-H304343    2  \n \n \n4. The claimant is, therefore, not entitled to the benefits \nsought, and she is not entitled to an attorney’s fee. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence the findings of fact made by the Administrative Law Judge \nare correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the October 8, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite concurs. \n \nCONCURRING OPINION \n  After my de novo review of the entire record, I concur with the \nmajority opinion finding that the Claimant failed to prove by a \n\n \nColeman-H304343    3  \n \n \npreponderance of the evidence that she suffered a compensable injury to \nher right knee and hip.  \n While Claimant fell during the course of her employment on June 19, \n2023, there is no objective evidence of injury as required by Ark. Code Ann. \n§ 11-9-102(4)(A).  A compensable injury must be established by medical \nevidence supported by objective findings and medical opinions addressing \ncompensability must be stated within a degree of medical certainty.  Smith-\nBlair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002).  There is no \nevidence in the record that Claimant’s authorized physician found any \nobjective evidence of injury as a result of the Claimant’s fall in the course \nand scope of her employment.  Thus, I cannot say that the evidence in the \nrecord is sufficient to entitle Claimant to medical treatment or temporary \ntotal disability as a result of her fall on June 19, 2023.   \n For the foregoing reason, I concur with the majority opinion.  \n          ______________________________ \n                                                            M. SCOTT WILLHITE, Commissioner","textLength":3416,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H304343 DIANA COLEMAN, EMPLOYEE CLAIMANT YOUTH HOME, INC., SELF-INSURED, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED FEBRUARY 11, 2025 Upon review before the FULL COMMISSION in Little Rock, Pula...","outcome":"denied","outcomeKeywords":["affirmed:3","granted:2","denied:4"],"injuryKeywords":["knee","hip"],"fetchedAt":"2026-05-19T22:29:44.581Z"},{"id":"full_commission-H401851-2025-02-11","awccNumber":"H401851","decisionDate":"2025-02-11","decisionYear":2025,"opinionType":"full_commission","claimantName":"Gloria Tackett","employerName":"Pinnacle Place Memory Care","title":"TACKETT VS. PINNACLE PLACE MEMORY CARE AWCC# H401851 February 11, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Tackett_Gloria_H401851_20250211.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Tackett_Gloria_H401851_20250211.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H401851 \n \nGLORIA YVONNE TACKETT, \nEMPLOYEE    CLAIMANT \n \nPINNACLE PLACE MEMORY CARE, \nEMPLOYER                                                                           RESPONDENT \n \nACCIDENT FUND INSURANCE COMPANY, \nCARRIER/TPA                                                                       RESPONDENT \n \nOPINION FILED FEBRUARY 11, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE JAMES A. ARNOLD, II, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed September 9, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission \nhas jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are \nhereby accepted. \n \n\nTackett-H401851   2  \n \n \n3. The Claimant has not proven by the preponderance of \nthe evidence that she sustained compensable injuries \nto her right shoulder by specific incident nor through \nthe course of employment.  \n \n4. Based on my finding that 1.) Claimant did not sustain \nan injury by specific incident, and 2.) nor did her injury \narise out of and through the course of employment, the \nremaining issues of reasonable and necessary medical \ntreatment, temporary total disability benefits, and a \ncontroverted attorney’s fee are moot and will not be \naddressed in this opinion. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence the findings of fact made by the Administrative Law Judge \nare correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the September 9, 2024 decision of \nthe Administrative Law Judge, including all findings and conclusions \ntherein, as the decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n  \n\nTackett-H401851   3  \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n  The Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant had not proved by a preponderance of the evidence that \nshe sustained a compensable injury by specific incident nor through the \ncourse  of  employment  and  based  on  that  finding  the  Claimant  was  not \nentitled  to  reasonable  and  necessary  medical  treatment,  temporary  total \ndisability benefits or a controverted attorney fee.  After my de novo review, I \nwould concur in part and dissent in part with the ALJ’s findings.  I would rule \nin  favor  of  the  Claimant  sustaining  an  aggravation  of  her  pre-existing \ncondition through the course of her employment with the Respondent and \ntherefore that she is entitled to reasonable and necessary medical treatment \nof such injury. However, I would concur with the ALJ that the Claimant is not \nentitled to temporary total disability benefits as a result of her compensable \ninjury.  \n1. Claimant suffered a compensable aggravation to her pre-existing \nshoulder condition. \nTo establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \n\nTackett-H401851   4  \n \n \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence.  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002).  \nThe employer takes the employee as he finds him.  Conway \nConvalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. App. \n1979).  A pre-existing disease or infirmity does not disqualify a claim if the \nemployment aggravated, accelerated, or combined with the disease or \ninfirmity to produce the disability for which compensation is sought.  See, \nNashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 \n(1990); Conway Convalescent Center v. Murphree, 266 Ark. 985, 585 \nS.W.2d 462 (Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. \nApp. 30, 917 S.W.2d 550 (1996).  An increase in symptoms of a pre-\nexisting degenerative condition is sufficient to establish a compensable \ninjury.  Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d 449 \n(2004). \n\nTackett-H401851   5  \n \n \nThe Claimant has a long history of symptomology and diagnoses for \nher right shoulder.  Claimant was diagnosed with right rotator cuff syndrome \nas early as 2005.  In 2005, the Claimant had an X-Ray of her shoulder \nwhich showed as essentially normal “with type 2 acromial spurring.”  For 11-\nyears Claimant did not seek treatment for her right shoulder.  On January \n25, 2016, Claimant suffered an injury at work when she caught a falling \nwooden medication box injuring her right arm and shoulder.  The Claimant \nwas subsequently diagnosed with a strain of her right levator scapulae \nmuscle on February 25, 2016.  Claimant undergoes an MRI on March 10, \n2016, which shows:  \n1. Near complete tear of the supraspinatus is seen with a few \nintact anterior leading fibers. The tear continues posteriorly \nwith the conjoined tendon and infraspinatus as a moderate \ngrade  articular  surface  tear  with  approximately  2.5  cm \nmedial retraction of the articular fibers. Minimal atrophy of \nthe supraspinatus and infraspinatus muscle fibers is seen.  \n2. There is a tear of the superior and articular fibers of the \ninfraspinatus without evidence of scrotal there is tear of the \nsuperior mid articular fibers of the subscapularis without \nsignificant tendon retraction. Degenerative changes of the \nlesser tuberosity is seen.  \n3. The intra-articular portion of the long head of the biceps \ntendon also appear significantly degenerated and torn with \nlongitudinal split tear extending into the vessel groove.  The \ntendon appears to reconstitute distally within the bicipital \ngroove and proximal arm.  Moderate biceps tenosynovitis is \nnoted.  \n4. Severe acromioclavicular degenerative changes are seen. \nModerate joint effusion is noted.  There is indentation of \nthe myotendinous fibers of the supraspinatus.  A large \namount of fluid is seen in the subacromial bursa.  \n\nTackett-H401851   6  \n \n \n \nOn April 4, 2017, the Claimant is diagnosed with a full thickness rotator cuff \ntear of her right shoulder and a partial-thickness rotator cuff tear of her left \nshoulder.  Dr. Samuel Moore recommends Claimant undergo a rotator cuff \nrepair surgery on the basis of diagnoses but does not specify which \nshoulder or if the surgery would be bilateral. On August 11, 2017, Claimant \nundergoes a left shoulder arthroscopy.  \n On December 25, 2023, Claimant was attacked by a patient while \nperforming employment services for Respondent.  Claimant presented to the \nemergency room of Baptist Health and was seen by Dr. Clinton Evans who \ndiagnoses her with a contusion or strain of her right shoulder and lumbar \nspine. Claimant was then referred to Clint Bearden, PA for evaluation of \nClaimant’s right shoulder.  Clint Bearden diagnoses the Claimant with a right \nrotator cuff tear and refers the Claimant for an MRI which showed:  \n1. Motion limited evaluation.  \n2. Complete full thickness tear of the supraspinatus tendon \nwith approximately 5.5 cm of retraction just proximal to the \nglenoid. This is technically age indeterminate, however \ngiven associated moderate supraspinatus muscular \natrophy, is suggestive of chronicity.  \n3. Complete full-thickness tear of the infraspinatus tendon \nwith approximately 5 cm of retraction. This is technically \nage indeterminate, however given associated severe \ninfraspinatus muscular atrophy, is suggestive of chronicity.  \n4. Mild  supcapularis  tendinosis  with  low-grade  partial \nthickness articular surface tear of the subscapularis tendon.  \n5. Tear with retraction of the long head of the biceps tendon.  \n\nTackett-H401851   7  \n \n \n6. Degenerative tears of the superior, anterior, and inferior \nlabrum. Probable 16 mm paralabral cyst adjacent to the \nanterior inferior labrum.  \n7. Severe degenerative arthrosis of the glenohumeral joint.  \n8. Small glenohumeral joint effusion.  \n9. Mild  to  moderate  degenerative  arthrosis  of  the \nacromioclavicular joint.  \n10. All  findings  are  age  indeterminate  unless  otherwise \nspecified.  \n \nBased  on  this  MRI,  the  Claimant  is  referred  to  Dr.  David  Gilliam  for \nevaluation.  This MRI visualizes a clear aggravation and progression of the \nobjective findings of an injury to the Claimant’s right shoulder including a  5.5 \ncm retraction of the supraspinatus tendon as compared to a 2.5 cm retraction \nvisualized in the 2016 MRI of Claimant’s right shoulder. On March 19, 2024, \nClaimant is seen by Dr. Gilliam who states that Claimant’s symptoms were \nexacerbated  by  her  December  25,  2023,  work  injury.    Dr.  Gilliam  also \nassesses the Claimant as having a recent rotator cuff sprain of her right \nshoulder in the context of chronic rotator cuff tears.  \n The Respondent then requested an independent medical evaluation \nof Claimant’s medical records by Dr. Theodore Hronas. Dr. Hronas opined:  \nIn  summary,  the  initial  MRI  exams  of  the  right  shoulder \ndemonstrate  evidence  of  a  tear  of  the  distal  supraspinatus \ntendon that progressed significantly in a short period of time, \nwith findings of complete tears of both the supraspinatus and \ninfraspinatus  tendons  on  3/29/2016.  The  most  recent  MRI \nexam  of  the  right  shoulder,  1/19/24,  demonstrates  severe \nosteoarthritic  change  of  the  right  glenohumeral  joint  with \nextensive  bone  remodeling  and  chronic  tears  and  severe \nmuscle atrophy of both the supraspinatus and infraspinatus \n\nTackett-H401851   8  \n \n \ntendons as described. This degree of osteoarthritic change and \nthe  chronic  tendon  tears  with  severe  muscle  atrophy  takes \nyears to develop. There is no reactive joint effusion, edema, or \nany objective findings of an acute or recent injury of the right \nshoulder. \nWhen  medical  opinions  conflict,  the  Commission  may  resolve  the \nconflict based on the record as a whole and reach the result consistent with \nreason, justice, and common sense.  Barksdale Lumber v. McAnally, 262 Ark. \n379, 557 S.W.2d 868 (1977).  It is within the Commission’s province to weigh \nall  of  the  medical  evidence  and  to  determine  what  is  most  credible.  \nMinnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nBased on my review of the record, I find that Dr. Gilliam’s medical opinion \nshould be given more weight as he is an orthopedic physician, had personal \ncontact with the patient and extensively reviewed the Claimant’s current and \npast medical history in relation to her right shoulder.  \n A doctor is not required to be absolute in an opinion nor are the \nmagic words “within a reasonable degree of medical certainty” even \nrequired to be used by the doctor for an injury to be related to the work \naccident.  Freeman v. Con-Agra Frozen Foods, 344 Ark. 296 (2001).  \nRather, the medical opinion must simply be more than speculation. Id.  If a \ndoctor renders an opinion about causation of a workers’ compensation \ninjury with language that goes beyond possibilities and establishes that \nwork was the reasonable cause of the injury, this should pass muster. Id.  \n\nTackett-H401851   9  \n \n \nHere, Dr. Gilliam states that Claimant’s symptoms were exacerbated by the \nwork-incident on December 25, 2023, with an objective finding of a rotator \ncuff strain of her right shoulder.  \n Although Claimant clearly had objective evidence of an injury to her \nright shoulder prior to the work-incident, there is clear and credible evidence \nthat she suffered from an aggravation of the injury after the work accident on \nDecember 25, 2023.  The Courts have held in several cases that an increase \nin symptoms following a work-related accident is sufficient proof to establish \ncompensability.  Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 \nS.W.3d 449 (2004).  There was an objective change in the condition of \nClaimant’s right shoulder following her work accident and her authorized \nphysician opined that it was related to the December 25, 2023, work incident.  \nTherefore, I find that the Claimant has sustained a compensable injury to her \nright shoulder.  \n2. Claimant is entitled to reasonable and necessary medical care in the \nform of surgical intervention as recommended by Dr. Gilliam.  \n An employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee. Ark. Code Ann. § 11-9-508(a).  Reasonable \nand necessary medical services may include those necessary to accurately \ndiagnose the nature and extent of the compensable injury; to reduce or \n\nTackett-H401851   10  \n \n \nalleviate symptoms resulting from the compensable injury; or to maintain the \nlevel of healing achieved; or to prevent further deterioration of the damage \nproduced by the compensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. \nApp. 100, 911 S.W.2d 593 (1995).  \n Claimant has suffered a compensable injury to her right shoulder as a \nresult of the work-incident that took place on December 25, 2023.  Claimant \nis entitled to reasonable and necessary medical treatment in connection with \nthe  injury  received  by  the  employee.  To  date  Claimant  has  undergone \nconservative treatment in the form of physical therapy and injections without \nrelief. Based upon the lack of success with conservative care, I find that \nClaimant is also entitled to reasonable and necessary medical care in the \nform of surgical intervention as recommended by Dr. Gilliam.  \n3. Claimant is not entitled to temporary total disability benefits.  \nTemporary total disability benefits are appropriate where the employee \nremains in the healing period and is totally incapacitated from earning wages.  \nArk. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  \nThe Claimant has the burden of proof in showing that they remain in their \nhealing period and are totally incapacitated from earning wages. Id.  \nWhile Claimant may have remained in her healing period due to her \nongoing compensable injury to her right shoulder and was partially \n\nTackett-H401851   11  \n \n \nrestricted, she was not completely taken off of work by any physician in the \nrecord and was therefore not totally incapacitated from earning wages.  \n Therefore,  I  find  that  the  Claimant  suffered  a  compensable \naggravation to her right shoulder as a result of the work-incident that took \nplace on December 25, 2023 and is entitled to reasonable and necessary \nmedical treatment including surgical intervention by Dr. Gilliam.  However, I \ndo not find that Claimant is entitled to temporary total disability benefits as \nshe was not totally incapacitated from earning wages.  \n  For the reasons stated above, I respectfully dissent. \n                                                                                \n_________________________________ \n                                                             M. SCOTT WILLHITE, Commissioner","textLength":16229,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H401851 GLORIA YVONNE TACKETT, EMPLOYEE CLAIMANT PINNACLE PLACE MEMORY CARE, EMPLOYER RESPONDENT ACCIDENT FUND INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 11, 2025 Upon review before the FULL COMMISSION in...","outcome":"granted","outcomeKeywords":["granted:6","denied:1"],"injuryKeywords":["shoulder","rotator cuff","strain","lumbar","sprain"],"fetchedAt":"2026-05-19T22:29:44.593Z"},{"id":"alj-H308099-2025-02-11","awccNumber":"H308099","decisionDate":"2025-02-11","decisionYear":2025,"opinionType":"alj","claimantName":"Areli Martinez","employerName":"Sparkle Logistics","title":"MARTINEZ VS. SPARKLE LOGISTICS AWCC# H308099 February 11, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MARTINEZ_ARELI_H308099_20250211.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARTINEZ_ARELI_H308099_20250211.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H308099 \n \nARELI SOTO MARTINEZ, Employee                                                             CLAIMANT \n \nSPARKLE LOGISTICS, Employer                                                           RESPONDENT \n \nOLD REPUBLIC/SEDGWICK CLAIMS MGT., Carrier/TPA                     RESPONDENT                                                                                                    \n \n \n \n OPINION/ORDER FILED FEBRUARY 11, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at the hearing. \n \nRespondents represented by ZACHARY RYBURN, Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n Claimant   suffered   a   compensable   injury   on   November   25,   2023,   and \ncompensation benefits were paid by respondent.  On December 14, 2023, Form AR-C \nwas filed by Attorney Peoples on claimant’s behalf.  Thereafter, Attorney Peoples filed a \nMotion to Withdraw and this was granted by a  Full Commission Order filed April 10, 2024.  \nNo  further  action  was taken  in this  claim,  and  respondent  filed  a Motion  to Dismiss on \nDecember 3, 2024. \nA hearing was scheduled on the respondent’s Motion to Dismiss for February 5, \n2025.  Notice  of  the  hearing  was  sent  to  claimant  by  certified  mail and  returned  to  the \nCommission as “Unclaimed” on January 12, 2025.   Claimant did not appear at the hearing \n\nMartinez – H308099 \n \n2 \n \nand has not responded to the respondent’s Motion to Dismiss. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nMotion  to  Dismiss  should  be  and  hereby  is  granted.    This  dismissal  is  pursuant  to \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      ____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2153,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H308099 ARELI SOTO MARTINEZ, Employee CLAIMANT SPARKLE LOGISTICS, Employer RESPONDENT OLD REPUBLIC/SEDGWICK CLAIMS MGT., Carrier/TPA RESPONDENT OPINION/ORDER FILED FEBRUARY 11, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, W...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:43:33.493Z"},{"id":"alj-H306913-2025-02-10","awccNumber":"H306913","decisionDate":"2025-02-10","decisionYear":2025,"opinionType":"alj","claimantName":"John Adams","employerName":"Butterball, LLC","title":"ADAMS VS. BUTTERBALL, LLC AWCC# H306913 February 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ADAMS_JOHN_H306913_20250210.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ADAMS_JOHN_H306913_20250210.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H306913 \n \nJOHN ADAMS, Employee CLAIMANT \n \nBUTTERBALL, LLC, Employer RESPONDENT \n \nCCMSI, Carrier RESPONDENT \n \n OPINION FILED FEBRUARY 10, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Russellville, Pope \nCounty, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On November 14, 2024, the above captioned claim came on for a hearing at Russellville, \nArkansas.      A  pre-hearing  conference  was  conducted  on August  26,  2024,  and  a  Pre-hearing \nOrder  was  filed  on August  27,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The   relationship   of   employee-employer-carrier   existed   between   the   parties on \nOctober 1, 2022. \n 3. The respondents have controverted the claim in its entirety. \n 4. The claimant’s weekly compensation rates will be determined at a later date.  \n By agreement of the parties the issues to litigate are limited to the following: \n\nAdams – H306913 \n \n-2- \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  his  cervical  spine  and  left \nshoulder on or about October 1, 2022. \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for  his  cervical  spine  and  left \nshoulder injuries. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  October  2, \n2022, to a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney’s fee. \n 5.  Respondents  raise  lack  of  notice  as  a  defense  in  that  October  25,  2023,  was  the  first \nnotice of the alleged work-related injury sustained on or about October 1, 2022. \n The claimant's contentions are as follows: \n“On October 1, 2022, claimant was working on a stack line in the \ncourse and scope of employment when he injured his left shoulder \nand  neck.  He  continued  to  work  the  pain  in  his  neck  and  left \nshoulder  became  unbearable.  Respondents  denied  the  claim  in  its \nentirety  and  claimant  sought  treatment  on  his  own.  Claimant \nunderwent  an  MRI  which  revealed  a  herniation  at  C5-6.  Claimant \nunderwent  a  cervical  spine  surgery  in  December  2023.  Claimant \ncontends  that  he  sustained  a  compensable  injury  in  the  scope  and \ncourse  of  employment  and  that  he  is  entitled  to  medical  benefit, \nTTD  and  that  his  attorney  is  entitled  to  an  attorney  fee.  All  other \nissues are reserved.” \n \n The respondents’ contentions are as follows: \n“The  claimant  was  not  injured  at  work  on  10-1-22.  He  does  not \nhave a compensable injury.” \n \n The  claimant  in  this  matter  is  a 48-year-old  male who  alleges  to  have  sustained \ncompensable  injuries  to  his  cervical  spine  and  left  shoulder  on  or  about  October  1,  2022.  The \nclaimant was employed in the respondent’s shipping department. That job required the claimant \n\nAdams – H306913 \n \n-3- \nto move and shrink wrap boxes of product. On direct examination the claimant was asked about \nthe events surrounding his alleged October 1, 2022, injury as follows: \nQ Okay. Tell me what happened on October 1, 2022. \n \nA Well,  when  I  got  to  work,  I  probably  worked  I  would  say \nan  hour  and  a  half  in  my  shipping  area.  And  then  Roger,  my \nsupervisor, had said he wanted me to go over to stacking and work \nwith the scanners on product to help him get the products scanned \nin by pallet because that is how they ship it is by pallet and make \nsure everything was good. \n \n I  had  been  over  there  for  a  few  hours  before  Eder,  the \nsupervisor  over  stacking,  second  shift,  had  put  me  on  the  stack \nline. And within, I don’t know, an hour and a half – somewhere \nbetween  an  hour  and  a  half  and  two  hours  is  when  I  hurt  my \nshoulder. I mean I felt it. So I reported to the supervisor first. \n \nQ To who? \n \nA Eder Sawatsky. He sent me to the nurse, which at the time \nwas  Alfred,  and  Alfred  just  gave  me  pretty  much  a  basic  aspirin \nand said, “Oh you will be fine. Go back to work.” \n \nQ Okay. \n \nA So I went back and, of course, I worked for however many \nhours longer it was. I remember leaving in the early a.m. I was still \nhurting and I told my supervisor Roger about it and he said, “Well, \nwhat do you want to do?” \n \n I said, “I am going to go home.” \n \n And  then  I  also  reported  to  work  the  next  day  like  I  was \nsupposed to, but that is what happened on that day. \n \nQ Okay. Now, you continued to work; correct? \n \nA Yes, I did. \n \nQ And you were back at work on Monday; correct: Well, that \nwas a Monday; correct? \n \nA Yes, that was a Monday. \n\nAdams – H306913 \n \n-4- \n \nQ And   you   continued   to   work   until   Wednesday;   is   that \ncorrect? \n \nA Yes, when the next incident occurred. \n \nQ What happened on Wednesday? \n \nA Well,  when  I  got  to  work  on  Wednesday,  I  got  sent  back \nover  to  stacking,  which  is  not  normal.  They  usually  rotate  us  out. \nBut  I  got  sent  back  over  there  and  I  was  doing  the  same  thing  I \nnormally  do.  I  would  go  in  and  scan  the  products.  I  would  help \nmake sure the pallets were good. \n \n And then Eder, the supervisor, had put me back on the line \nagain. Of course, I argued with him about it. “I got hurt once. I \ndon’t need to get it again.” \n \n And he said, “You work here and you do whatever you are \ntold to do or you won’t have a job.” \n \n So I went and got on the line and within a couple of hours, \nsure  enough,  I  hurt  my  back  and  my  neck  went  pop.  The  guy \nworking  next  to  me  heard  it.  I  think  his  name  was  Michael,  but  I \ncan’t be for sure. \n \nQ What were you doing when it popped? \n \nA Stacking off the roller lines to the pallets so that is from the \nfloor up. \n \nQ Okay. And other than the gentleman that was working next \nto you, did you tell anybody else that day? \n \nA The supervisor afterwards. \n \nQ And who was your supervisor? \n \nA The supervisor over the position was Eder. \n \nQ Okay. And did he send you to the nurse that day? \n \nA He did. \n \nQ And did you see Nurse Alfred again? \n\nAdams – H306913 \n \n-5- \n \nA Yes, ma’am. \n \nQ And what did Nurse Alfred do? \n \nA The same outcome as the previous on Monday, give you an \naspirin and send you  back to work. Obviously, it’s an ongoing \nordeal here. I could only do what I am supposed to do, which I did. \nI went to the supervisor first with the predicament and he sent me \nto  the  nurse,  which  I  discussed  with  them  what  happened.  Now \nbeyond that, I felt that my job was done. \n \nQ Did they send you to a doctor? \n \nA No. It wasn’t even suggested. \n \nQ Did they have you fill out any workers’ comp paperwork? \n \nA Not any. \n \nQ Okay. Did you continue to work? \n \nA Yes. \n \nI note that there are no documents in evidence that support or indicate the claimant was seen by \nthe  company  nurse  or  reported  his  alleged workplace injuries  while  in  the  employment  of  the \nrespondent.  The  claimant  continued  to  work  for  the  respondent  until  he  was  terminated  in \nDecember of 2023. \n The first medical record in evidence is a November 2, 2022, record from the Clarksville \nFamily  Medical  Center.  The  claimant  is  seen  by  APRN  Haley  Duff.  Following  is  a  portion  of \nthat medical record:  \nHPI \nNeck Pain \nReported by patient. \nTrauma: no. \nNeurological Complaints: none \n\nAdams – H306913 \n \n-6- \nPain:  worse  with  movement;  worse  with  activity;  radiates  to  right \nshoulder; pt states he thinks his right shoulder was improved with \nPT \nPain Duration: 3+ months; 5-8/10 pain level \nTreatment:  PT/OT  (PT  has  helped  the  right  shoulder,  has  not \nhelped anything else) \n \n*** \n1. Neck pain –  \nWorsening,  neck  pain  after  6  weeks  of  PT,  celebrex,  Flexeril  and \nsteroid \nM54.2: Cervicalgia \nXR, CERVICAL SPINE – Note to imaging Facility: 2 or 3 views \nMRI: CERVICAL SPINE, W/O CONTRAST \n \nThe claimant’s November 2, 2022, medical record indicates that he had already been receiving \nmedical treatment for his cervical spine in the form of physical therapy at least two weeks prior \nto the date he alleges to have injured his cervical spine and left shoulder at work.  \n The claimant was asked on direct examination about this inconsistency as follows: \nQ Okay. In the very first note in here, it is dated November 2, \n2022,  and  it  notes,  “Worsening  neck  pain  after  six  weeks  of \nphysical therapy.” \n \n So this is approximately one month following that accident \nand  it  shows  that  you’ve  already  done  some  physical  therapy. \nWhat is the discrepancy there? \n \nA That  one  I  woke  up  with  a  crick  in  my  neck.  I  am  sure \npeople know what a crick is. And I couldn’t turn my head, so I \nwent in and they did the heat treatment and stuff and that ended up \nbeing fine. But they wanted to do some other stuff and I did all the \nstuff they wanted me to do prior to getting the MRI. The state’s \nrequirement is to get medical done. There is a process. \n \nQ When was this waking up with the crick in your neck? \n \nA I don’t remember what day. \n \nQ Was it before or after the accident? \n \n\nAdams – H306913 \n \n-7- \nA I  think  it  was – I  think  it  was  after,  but  I  can’t  recall \nexactly. \n \nQ Okay.  Okay.  So  after  the  accident,  how  sold  are  you  that \nyou know for a fact this was October 1, ’22? Do you think it could \nbe a different date? \n \nA There  is  no  way.  When  I  first  started  working  for  them,  I \nfelt great. It was not the first time I have done a shipping job where \nyou  had  to  put  a  product – except  when  I  worked  at  Zero \nMountain, we had to floor load out trucks. \n \nQ Now, Mr. Adams, let me ask you this question. \n \nA Yes. \n \nQ According  to  this  medical  report,  you  were  treating  for \nneck pain two weeks prior to October 1, 2022. \n \nA Right, but it was only for the crick. \n \nQ So the crick was prior to your work injury, then? \n \nA I  would  have  to  guess  so  because – yeah,  I  would  have  to \nguess  so  because  I  remember  going  in  and  having  the  procedures \ndone for the heat treat. \n \nQ Okay.  So  you  were  already  treating  for  some  neck  pain \nprior to this injury at work? \n \nA I would guess. I mean, yes. \n \nQ Okay.  Did  this  incident  at  work  make  your  pain  better, \nworse, or did it gradually get worse over time? \n \nA It  was  pretty  much  gradually.  I  mean  I  would  start  feeling \nnumbness, tingling. You know, it is hard to tell if you are having a \nstroke, but it pretty much comes down to had some nerve damage \nthat goes with associated with it, so... \n \nQ Okay. So the pain after October 1\nst\n, was it different than the \npain that you had experienced following the crick in your neck? \n \nA Yes. \n \n\nAdams – H306913 \n \n-8- \nQ Okay. tell me how it was different. \n \nA Because with a crick, I just couldn’t move. With the other, \nit  was  constant  pain  as  if  like  somebody  were  either  stabbing, \njabbing,  or  you  know,  poking  around,  so  I  was  in  pain.  That  was \nthe only thing I could do was just do what I had to to get my MRI \nto see what was wrong with my neck. \n \n The  claimant  underwent  an  MRI  of  the  cervical  spine  on  November  28,  2022,  at \nClarksville Family Medical Center. Following is a portion of that diagnostic report: \nImpression:  Moderate  canal  stenosis  with  right-sided  foraminal \nnarrowing secondary to disc osteophyte complex at C5-6 \n \n On February 16, 2023, the claimant is seen at Mercy Clinic Neurosurgery in Fort Smith. \nFollowing is a portion of that medical record: \nHISTORY OF PRESENT ILLNESS: \nJohn  C.  Adams  is  a  46  y.o.  male  who  works  at  local  Butterball \nfactory  being  seen  in  the  office  today  for  midline  neck  pain  x  1 \nyear.   States   his   pain   radiates   to   R   shoulder,   occasionally   L \nshoulder,  but  does  not  go  into  either  arm.  He  has  tried  PT  with \nminimal  relief.  He  does  IM  steroid  injections  q  3  months.  States \nFlexeril  and  Gabapentin  help  him  sleep  but  he  does  not  take  it \nduring  the  day  to  drowsiness.  He  does  not  have  numbness  or \ntingling but he does have finger pain in all 10 fingers that he thinks \nis  due  to  arthritis.  Denies  falls,  decr  hand  dexterity  or  changes  in \nhandwriting. He reports that he has been told his R hand is weaker \nthan L but he is R hand dominant. \n \n*** \nEncounter Diagnoses \nCervicalgia \nCervical Radiculopathy \nOsteoarthritis of spine with radiculopathy, cervical region \n \nOrders Placed This Encounter \nCeleboxib (Celebrex) 200 mg capsule \n \nPlan: \n1. Celebrex  200  mg  daily  x  5  days  for  osteoarthritis  pain.  Given \none refill. \n\nAdams – H306913 \n \n-9- \n2.  Pain  management  referral  for  evaluation  of  possible  epidural \nsteroid injections. \n \nPt  discussed  with  Dr.  Lee  and  he  is  in  agreement  with  the  plan.  I \nwould  like  to  see  John  back  here  in  the  clinic  in  3  month(s)  to \nfollow  up  after  ESI.  Should  he  have  any  questions  before  then  I \nhave encouraged him to give us a call. \n \n On  February  23,  2023,  the  claimant  is  again  seen  at  Clarksville  Family Medical  Center. \nThe medical report from that visit, in part, states: \nHPI \nNeck Pain \nReported by patient. \nTrauma: no. \nNeurological Complaints: none \nPain: arching; worse with movement; worse with activity \nPain Duration: 6-8 months \nTreatment: steroids \n \n*** \nAssessment/Plan \n1. Neck pain –  \nNote may return to work without restrictions \nM54.2 Cervicalgia \nDexamethasone  sodium  phosphate  4mg/mL  injection  solution – \nInject 2 mL by intramuscular route. Quantity: (2) mL \nRoute: Injection \nKetorolac  60  mg/2  mL  intramuscular  solution – Inject  2  mL  by \nintramuscular route. Quantity: (2) mL. Route: Intramuscular \n \n On  March  14,  2023,  the  claimant  is  seen  by  Dr. Brian Goodman  at  Mercy  Clinic \nDepartment of Pain Medicine. Following is a portion of that medical report: \nChief Complaint: \nNeck Pain \n \nHistory of Present Illness \nMr.  Adam  is  a  46  y.o.  male  who  presents  to  the  pain  clinic  with \nneck pain which has been gradually worsening over time. \nThe  pain  has  been  occurring  for  sev  mo  and  is  described  as  a \nconstant aching/throbbing in the right neck and shoulder. \nRadiation: right shoulder and arm. \n\nAdams – H306913 \n \n-10- \nPossible accident or event leading to this pain: no. \nThe  pain  is  worsened  by  looking  up  while  rest  helps  to  ease  the \npain. \n \nThe  claimant  again  saw  Dr.  Goodman  on  March  27,  2023,  for  a  cervical  epidural  steroid \ninjection. The claimant reports to Dr. Goodman  on May 8, 2023, that the steroid injection gave \nhim significant relief. \n On  August  1,  2023,  the  claimant  underwent  a  second  cervical  MRI.  Following  is  a \nportion of that diagnostic report: \nIMPRESSION: \n1. Central  disc  protrusion  C5-6  level  which  may  contact  and  have \nslight  mass  effect  anterior  aspect  of  the  cord  with  mild  central \ncanal narrowing unchanged. \n \nThis MRI shows a central disc protrusion that was not present in the claimant’s November 28, \n2022, cervical MRI. \n On  December  7,  2023,  the  claimant  is  seen  by  Dr.  Arthur  Johnson  and  Dr.  Johnson \nperformed  surgery  on  the  claimant’s  cervical  spine  in  the  form  of  an  anterior  L5-6 \ndecompression  with  discectomy  and  removal  of  osteophyte  and  an  anterior  C5-6  Mobi-C  total \ndisc replacement. Medical records from that same day also, in part, state: \nChief Complaint \nPatient presents with \n* Neck Pain \nCervical disk herniation C5-6 \n \nSubjective: \nJohn  C.  Adams  is  a  47  y.o.  year-old  male  admitted  for  Mobi-C \nTDR  C5-6  with  a  history  of  Pt  states  has  had  pain  for  years,  no \ninjury.  Radiates  down  BIL  shoulders  into  arms  to  fingers,  seems \nworse  on  the  right.  Has  numbness  and  tingling  at  times.  PT  with \ncervical  traction  in  7/2022.  He  states  the  relief  did  not  really  last \nmore  than  2-3  days.  he  has  had  CESI  by  Dr.  Goodman  and  he \nstates first one lasted 4-6 weeks but the 3\nrd\n one only lasted 7 days. \nHe  states  that  Dr.  Goodman  told  him  more  injections  were  not \n\nAdams – H306913 \n \n-11- \ngoing to help. He has had NCV/EMG on 5/24/2023 by Dr. Phillips \nwhich noted mild carpal tunnel on the left and no evidence of any \nother   entrapment   neuropathy.   He   has   tried   NSAIDS,   muscle \nrelaxants, opioids, Gabapentin and Cymbalta but he states that his \npain   level   stays   at   about   a   7/10.   He   has   seen   Dr.   Gardon, \nneurosurgery  at  Mercy,  who  gave  patient  a  Medrol  Dosepak  for \ninflammation of the cervical joints which pt states helped some but \ndid  not  last.  Patient  was  notified  of  NCV/EMG  results  by  Dr. \nGardon’s nurse. Dr. Gardon felt that surgery would not benefit him \nand  patient  asked  his  PCP  for  a  referral  to  BH  neuroscience  for  a \nsecond opinion. \n \n10/4/2023:  has  had  neck  pain  for  several  years  on  and  off  this \nepisode  started  last  year.  The  pin  is  on  the  posterior  aspect  of  his \nneck,  bil.  Shoulder  and  upper  arms,  they  ache  constantly  without \nnumbness, tingling or burning sensation. Has difficulty looking up \nat  times  and  also  reaching  above  his  head.  Has  had  physical \ntherapy,  no  chiropractor,  or  neck  brace.  Had  CESI  #3  injections \nand did not help. \n \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n The claimant alleges injury to his left shoulder and cervical spine on or about October 1, \n2022.  In  considering  the  claimant’s  allegation  of  left  shoulder  injury  the  medical  evidence \npresented  is  found  lacking.  There  are  no  medical  records  in  evidence  that  show  any type of \nobjective medical findings regarding the claimant’s left shoulder. Without objective evidence of \na left shoulder injury the claimant is unable to prove a compensable left shoulder injury.  \nThe  credibility  of  witnesses  and  the  weight  to  be  given  to  their  testimony  are  matters \n\nAdams – H306913 \n \n-12- \nsolely within the province of the Commission.  Ringier America v. Combs, 41 Ark. App. 47, 849 \nS.W.2d 1 (1993). \n In considering the claimant’s alleged cervical spine injury, I note the conflict that exists \nbetween the claimant’s hearing testimony and the medical evidence. Clearly, the claimant was \nreceiving  medical  treatment  for  his  cervical  spine  in  the  form  of  physical  therapy  at  least  two \nweeks  before  his  alleged  cervical  spine  incident.  The  claimant  attempts  to  frame  his  need  for \nmedical treatment prior to his alleged injury date as simply waking up with a crick in his neck. I \nfind it unreasonable that medical providers or any individual would order or undergo six weeks \nof physical therapy for a simple morning crick in someone’s neck. \n The claimant alleges the medical treatment for his cervical spine, including surgery, is a \nresult of his alleged October 1, 2022, cervical spine injury. However, not one medical record in \nevidence discusses or talks about any type of injury to the claimant’s cervical spine. In the first \nmedical record dated November 2, 2022, the claimant reported no trauma. At the claimant’s \nFebruary 16, 2023, Mercy Clinic Neurosurgery visit the claimant states, “midline neck pain x \none year”, and reports no injury. At his March 14, 2023, visit with Dr. Goodman the claimant \nreports, “neck pain which has been gradually worsening over time.” The claimant also reports no \npossible accident or event leading to this pain at that time. On October 4, 2023, the claimant tells \nDr. Johnson, “has had neck pain for several years on and off, this episode started last year.” On \nthe day of his December 7, 2023, surgery with Dr. Johnson, the claimant, “states he has had pain \nfor years, no injury.” \n The  claimant  certainly  does  have  objective  medical  findings  of  derangement  in  his \ncervical  spine  given  his  November  28,  2022,  cervical spine MRI,  his  August  1,  2023,  cervical \nspine MRI, and Dr. Johnson’s December 7, 2023, operative report. I note a disc protrusion in his \n\nAdams – H306913 \n \n-13- \nsecond  MRI  that  was  not  present  at  his  first  MRI.  Although  the  claimant  can  show  objective \nmedical  findings  of  cervical spine derangement, he  is  unable  to  prove  a  causal  connection \nbetween  those  objective  medical  findings  and  the  incident  on  October  1,  2022,  he  alleges.  The \nclaimant  began  treating  at  least  two  weeks  prior  to  his  alleged  injury  date  and  medical  records \nconsistently show he had no injury by his own accounts to medical providers. The claimant has \nfailed  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained  a  compensable  cervical \nspine injury on or about October 1, 2022. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  26,  2024, and  contained  in  a  Pre-hearing  Order  filed August  27,  2024,  are  hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained \ncompensable injuries to his cervical spine and left shoulder on or about October 1, 2022. \n 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto medical treatment for his cervical spine and left shoulder. \n 4. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto temporary total disability benefits. \n 5. The claimant has failed to prove by a preponderance of the evidence that his attorney is \nentitled to an attorney’s fee. \n\nAdams – H306913 \n \n-14- \n 6. The respondents lack of notice defense is moot. \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":23768,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H306913 JOHN ADAMS, Employee CLAIMANT BUTTERBALL, LLC, Employer RESPONDENT CCMSI, Carrier RESPONDENT OPINION FILED FEBRUARY 10, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope County, Arkansas. Claimant represented by LAURA ...","outcome":"denied","outcomeKeywords":["granted:1","denied:4"],"injuryKeywords":["cervical","shoulder","neck","back","carpal tunnel"],"fetchedAt":"2026-05-19T22:43:27.216Z"},{"id":"alj-H400364-2025-02-10","awccNumber":"H400364","decisionDate":"2025-02-10","decisionYear":2025,"opinionType":"alj","claimantName":"Jennifer Lows","employerName":"Crain Kia Of Bentonville","title":"LOWS VS. CRAIN KIA OF BENTONVILLE AWCC# H400364 February 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LOWS_JENNIFER_H400364_20250210.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOWS_JENNIFER_H400364_20250210.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H400364 \n \nJENNIFER LOWS, Employee CLAIMANT \n \nCRAIN KIA OF BENTONVILLE, Employer RESPONDENT \n \nRISK MANAGEMENT RESOURCES, Carrier RESPONDENT \n \n OPINION FILED FEBRUARY 10, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by LAURI THOMAS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On November 12, 2024, the above captioned claim came on for a hearing at Springdale, \nArkansas.   A pre-hearing conference was conducted on September 30, 2024, and a Pre-hearing \nOrder  was  filed  on October  2,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on January \n12, 2024. \n 3. The claimant sustained a compensable injury to her neck and left shoulder on or about \nJanuary 12, 2024. \n 4.  The  respondents  have  controverted  an  alleged  injury  to  her  right  shoulder  on  about \nJanuary 12, 2024. \n\nLows – H400364 \n \n-2- \n 5. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $409.00  for  temporary  total  disability  benefits  and  $307.00  for  permanent  partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  her  right  shoulder  on  or  about \nJanuary 12, 2024. \n 2. Whether Claimant is entitled to medical treatment for her right shoulder injury. \n The claimant's contentions are as follows: \n“Claimant   sustained   a   compensable   injury   while   working   for \nRespondent  on  or  about  01/12/24.  At  that  time,  Claimant  was  in \nthe  course  and  scope  of  her  employment  with  Respondent  when \nClaimant  slipped  on  ice  and  fell  on  one  side  of  her  body,  got  up, \nand then fell on the other side of her body. \n \nClaimant   is   having   significant   pain   in   her   right   shoulder. \nRespondents   have   failed   to   provide   medical   treatment   for \nclaimant’s right shoulder.” \n \n The respondents’ contentions are as follows: \n“Respondents  contend  that  all  appropriate  benefits  are  being  paid \nwith  regard  to  Claimant’s  compensable  injuries  sustained  on \n1/12/24.  Claimant  is  currently  receiving  TTD  associated  with  her \nleft  shoulder  injury.  Respondents  contend  that  claimant  did  not \nsustain  a  right  shoulder  injury  on  1/12/24  or  any  other  time  while \nworking for Respondent/Employer.” \n \n The claimant in this matter is a 52-year-old female who sustained compensable injuries to \nher neck and left shoulder on January 12, 2024. The claimant now alleges that she also sustained \na   compensable   right   shoulder   injury   in   that   same   incident   in   which   she   sustained   her \ncompensable  neck  and  left  shoulder  injuries.  The  claimant  described  the  January  12,  2024, \nincident on direct examination as follows: \n\nLows – H400364 \n \n-3- \nQ Can  you  describe  what  happened  that  morning  when  you \nwent to check the doors on January 12, 2024. \n \nA Yes.  I  went  to  open  the  doors  and  previously  I  got  locked \nout and then I would have to go around the building. So I saw the \nparts manager out there and thought I am fine. If I get locked out, I \ncould walk around and she will let me in. \n \n So  I  went  to  open  the  door  and  got  locked  out  and  when  I \nwalked down, I slipped and fell on the ice. I had a coffee in my left \nhand  and  when  I  had  went  out,  I  fell  and  caught  my  fall  on  my \nhand (indicating) and then went down on my right side. \n \n And the parts truck was backing up and did not apparently \nsee  me,  so  Dee,  the  parts  manager,  was  yelling  stop,  stop,  while  I \nwas trying to get up and slipping on the ice. And I had that coffee \nin my hand so I couldn’t brace my fall, so I fell on my left side and \nthat is what occurred. \n \nQ So you originally fell on your right side? \n \nA Yes. \n \nQ And then as you tried to get up, you fell on your left side? \n \nA Correct. \n \nQ And you broke your fall on your right side with your right \nhand? \n \nA That is correct. \n \nQ And then you didn’t break your fall on your left shoulder? \n \nA No. \n \n The  claimant  reported  her  incident  to  the  appropriate  respondent  administrator  and  was \nsent  to  Washington  Regional  Urgent  Care.  The  medical  record  states  the  following  chief \ncomplaint, “Patient comes in today for a Pain, Chest, Pain, Shoulder, Pain and Pain, Neck. PT \nslipped and fell on left side. LROM (source: patient).” Following is a portion of the medical \nrecord regarding the claimant’s right shoulder: \n\nLows – H400364 \n \n-4- \nMusculoskeletal – ABNORMAL:  Tenderness  noted  over  both  rib \nbilaterally,  Abnormal  flexion  right  shoulder,  Abnormal  extension \nright  shoulder,  Abnormal  abduction  of  right  shoulder,  Abnormal \nadduction  of  right  shoulder,  Tenderness  noted  on  anterior  right \nshoulder, Tenderness noted on posterior right shoulder. \n \n*** \nAssessment/Plan:  Strain  of  unspecified  muscle,  fascia  and  tendon \nat  right  shoulder  and  upper  arm  level,  unspecified  arm,  initial \nencounter (S46.919A) – Uncomplicated. \nDischarge  disposition:  Patient  discharged  to  home  or  self  care \n(routine   discharge).   Recorded   on   01/12/2024   4:26   PM   by \nSKremers. tn011 \nRest,  ice  and  elevate  the  affected  area,  and  keep  ace  wrap  on  for \ncompression.  If you received an X-Ray at this clinic, a radiologist \nwill over-read your images and report back to us generally within a \nfew hours. \nWe will call you with the results. \nIf your condition worsens we recommend that you receive another \nevaluation  at  the  emergency  room  immediately  or  contact  your \nprimary  medical  clinics  after  hours  call  service  to  discuss  your \nconcerns. \nYou  must  understand  that  you’ve  received  an  Urgent  Care \ntreatment  only  and  that  you  may  be  released  before  all  of  our \nmedical  problems  are  known  or  treated.  You,  the  patient,  will \narrange for follow up care as instructed. \nIce affected area 15 minutes 3-4x daily. \nGet plenty of rest. \nTylenol  every  4-6  hours  as  needed  and/or  ibuprofen  every  6-8 \nhours as needed, over the counter for pain or fever. \nRest, apply ice, and evaluate affected area. \nIf  your  condition  worsens  or  persist  we  recommend  that  you  be \nevaluated  at  the  emergency  room  immediately  or  contact  your \nprimary  medical  provider  or  his/her  after  hours  call  service  to \ndiscuss your concerns, or come back and see us. \nPrescribed  Naprosyn  500  mg  tablet;  Take  1  tablet  (oral)  ever  12 \nhours for 10 days; total Qty: 20 (Twenty) tablet; 1 refill(s); Allow \nsubstitutions; Earliest Fill Date: 01/12/24. \nPrescribed  cyclobenzaprine  5  mg  tablet:  Take  1  tablet  (oral)  3 \ntimes  per  day  PRN – Muscle  Spasm  for  5  days;  total  Qty:  15 \n(Fifteen) Tablet; No refills; Allow substitutions; Earliest Fill Date: \n01/12/24. \n \n\nLows – H400364 \n \n-5- \nX-rays were taken of the claimant’s left shoulder during that same visit but not taken of the \nclaimant’s right shoulder. \nMedical   Decision   Making/Time:   Diagnosis:   Low   strain   of \nunspecified  muscle,  fascia  and  tendon  at  shoulder  and  upper  arm \nlevel,  unspecified  arm,  initial  encounter  (S46.919A) – Injury, \nAcute, Uncomplicated. \n \nAn addendum was added to the claimant’s January 12, 2024, medical record on  November  16, \n2024, which states: \nBilling Addendum: Strain of unspecified muscle, fascia and tendon \nat shoulder and upper arm level, unspecified arm, initial encounter \n(S46.919A) – Uncomplicated excluded from claims for this visit. \nStrain  of  unspecified  muscle,  fascia  and  tendon  at  shoulder  and \nupper  arm  level,  left  arm,  initial  encounter  (S46.912A)  added  to \nclaims for this visit. \nChest pain, unspecified (R07.9) added to claims for this visit. \nUnspecified  fall,  initial  encounter  (W19.XXXA)  added  to  claims \nfor this visit. \n \n On  January  12,  2024,  APRN  Sean  Kremers  completed  a  Form  AR-3,  which  is  found  at \nClaimant’s Exhibit 1, pages 10-11. Following are portions of that report: \nPhysician’s Report of Injury and Treatment; Brief Description of \nAccident:   [handwritten]   Pt   slipped   on   ice   landing   on   right \nshoulder.  No  head  injury.  Pt  c/o  right  shoulder,  chest  pain,  and \nwrist pain. \nDiagnosis/Treatment Rendered: [handwritten] Shoulder Strain. \nPrognosis/Expected Duration of Treatment: [handwritten] Rest, Ice \n20   minutes   on   and   20   minutes   off.   Prescription   for   anti-\ninflammatories  or  muscle  relaxers.  Wear  shoulder  sling  as  needed \nfor comfort. Follow up in 6 weeks if symptoms return. \n \n The claimant testified that she received a sling for her right arm during her treatment on \nJanuary  12,  2024.  That  same  day  the  claimant  signed  a  Form  AR-N or “Employee’s Notice of \nInjury.” The report asked, “What part of your body was injured?” The response, “Shoulder/neck \nleft side, right hand.” The report asked, “Briefly describe the cause of injury.” The response, \n\nLows – H400364 \n \n-6- \n“Walking  between  buildings,  snow  mat  removed  and  there  was  ice/snow  and  I  fell.  Then  the \nparts  truck  was  driving  in  reverse  towards  me  and  I  was  struggling  to  get  up  as  to  not  get  ran \nover and fell again on my right side, arm and shoulder.” \n On January 23, 2024, the claimant began treating with conservative care at Occupational \nHealth. The chief complaint from that medical record states, “Neck, left shoulder, left upper \narm.” The following treatment plan and diagnosis was given: \nTREATMENT PLAN: \nI  have  instructed  her  to  use  ice  to  reduce  pain  and  inflammation. \nShe was given an opportunity to ask questions about her care. She \nverbalized  understanding.  She  has  been  instructed  on  the  use  of \nIbuprofen and Cyclobenzaprine as needed. \n \nDIAGNOSIS \n1. Strain   of   muscle,   fascia   and   tendon   at   neck   level,   initial \nencounter (S16.1XXA). \n2. Pain in the left shoulder (M25.512) \n \n From  this  point  forward  the  claimant  is  treated  with  conservative  care  for  her  neck  and \nleft shoulder including physical therapy. On March 7, 2024, the claimant  underwent  an MRI of \nher  cervical  spine  at  Northwest  Medical  Center,  Bentonville.  The  diagnostic  report  gave  the \nfollowing Impressions: \nIMPRESSION: \n1. Multilevel mild degenerative disc disease. \n2. No moderate or high-grade canal or foraminal stenosis. \n \n On May 6, 2024, the claimant was seen by Dr. Michael Calhoun. Dr. Calhoun examined \nthe  claimant  and  reviewed  the  claimant’s  cervical  MRI  at  that  time.  He  recommended  the \nclaimant  have  a  left  shoulder  MRI  and  if  that  MRI  was  abnormal that  she  should  obtain  an \northopedic referral.  \n\nLows – H400364 \n \n-7- \n The claimant saw Dr. Chad Songy, an orthopedic surgeon, on May 30, 2024, for her left \nshoulder. Following is a portion of that medical record: \nHistory of Present Illness: \nJennifer Lows is a 51 y.o. female who is here today for evaluation \nof her left shoulder. This is a worker’s Comp injury. Patient does \nhave  a  lawyer  involved.  The  patient  had  an  injury  on  January  12, \n2024.  Patient  slipped  on  the  ice  and  landed  on  her  left  shoulder. \nSince  then  she  has  had  pain  in  her  left  shoulder  radiating  up \ntowards  her  neck.  She  has  had  significant  pain  and  dysfunction \nwith  limited  left  shoulder  range  of  motion.  She  has  had  difficulty \nwith  sleep  and  activities  of  daily  living.  She  has  done  physical \ntherapy.  She  has  also  seen  a  neurosurgeon  who  felt  the  pain  was \ncoming from her shoulder and not her neck. \n \n On June 12, 2024, the claimant underwent an MRI on the left shoulder at Physicians’ \nSpecialty Hospital. Following are the Impressions from that diagnostic report: \nImpression: \n1. Tendinosis   of   the   mild   and   distal   supraspinatus   tendon. \nTendinosis of the distal infraspinatus tendon. \n2. Moderate hypertrophic DJD of the acromioclavicular joint with \nmoderate  bone  edema  on  both  sides  of  the  joint.  This  likely \ncontributes to patient’s pain. \n \n On  July  11,  2024,  the  claimant  was  again  seen  by  Dr.  Songy.  Following  is  a  portion of \nthat medical report:  \nPatient  had  very  limited  range  of  motion  at  her  last  visit.  I  had \nconcerns  for  a  traumatic  injury  to  her  shoulder.  An  MRI  was \nordered. She is here today to discuss the results of that MRI.  \n \n*** \nPlan \nJennifer Lows is a 51 y o female who presents today for follow-up \nof  left  shoulder  pain  and  dysfunction  from  an  injury  at  work \nwhenever  she  slipped  on  the  ice.  Patient  states  she  had  no  pre-\nexisting  shoulder  issues  to  pathology,  but  since  that  injury  is  had \nsignificant   dysfunction.   MRI   does   not   show   any   significant \npathology  to  the  glenohumeral  joint  or  rotator  cuff,  but  she  does \nhave  significant  edema  in  the  distal  clavicle  and  acromion  at  the \nAC  joint.  We  discussed  doing  an  ultrasound-guided  AC  joint \n\nLows – H400364 \n \n-8- \ninjection  for  both  diagnostic  and  potentially  therapeutic  purposes. \nPatient is on board with that plan. \n \n*** \nWe  will  continue  the  patient  with  limited  work  as  she  is  having \nsignificant pain and dysfunction at this time. I will see her back in \nclinic in 1 month to see how she responds to this injection. \n \nOf note, the patient states when she originally fell, she fell onto her \nright shoulder 1\nst\n and then her left. I do have it documented in my \nnote that she  fell on her  left shoulder. She is telling me that when \nshe fell on her right shoulder 1\nst\n and then her left and would like to \nbe  seen  for  her  right  shoulder.  I  am  happy  to  see  her  for  her  right \nshoulder, but since this is under workers’ comp we will need to get \napproval from the nurse case manager/adjuster. Once it is approved \nI am happy to see her back and work out for her right shoulder. \n \nI note this is the first mention of the claimant’s right shoulder in admitted medical records since \nher January 12, 2024, visit to the Washington Regional Urgent Care.  \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n It is the claimant’s burden to prove that she sustained a compensable injury to her right \nshoulder on January 12, 2024, in the incident in which she fell. The claimant alleges that she fell \ntwice on both her right and left side. Quite frankly, I believe the claimant’s account of the \nincident.  However,  the  claimant  must  prove  the  existence  of  objective  medical  findings  to \nsupport  her  claim  that  she  sustained  a  compensable  right  shoulder  injury  in  that  incident.  Here, \n\nLows – H400364 \n \n-9- \nshe  is  unable  to  do  so.  The  right  shoulder  is  only  addressed  one  time  specifically  in  medical \nrecords introduced from January 12, 2024, as follows:  \nMusculoskeletal – ABNORMAL:  Tenderness  noted  over  both  rib \nbilaterally,  Abnormal  flexion  right  shoulder,  Abnormal  extension \nright  shoulder,  Abnormal  abduction  of  right  shoulder,  Abnormal \nadduction  of  right  shoulder,  Tenderness  noted  on  anterior  right \nshoulder, Tenderness noted on posterior right shoulder. \n \n*** \nAssessment/Plan:  Strain  of  unspecified  muscle,  fascia  and  tendon \nat  right  shoulder  and  upper  arm  level,  unspecified  arm,  initial \nencounter (S46.919A) – Uncomplicated. \n \nEven though the claimant has extensive medical treatment from that point in time until July 11, \n2024, there is no mention in the medical records of right shoulder difficulties. On July 11, 2024, \nthe claimant simply mentions she would like to be seen for her right shoulder. \n In  the  January  12, 2024, medical records, the claimant’s right shoulder range of motion \nfindings are subjective in nature and mention the claimant’s subjective complaints of pain. I find \nthat no objective medical evidence exists to support the claimant’s claim that she sustained a \ncompensable right shoulder injury. As such, the claimant has failed to prove that she sustained a \nright shoulder injury on January 12, 2024. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n \n \n \n\nLows – H400364 \n \n-10- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nSeptember  30,  2024,  and  contained  in  a  Pre-hearing  Order  filed October  2,  2024,  are  hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \na compensable injury to her right shoulder on or about January 12, 2024. \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment for her alleged right shoulder injury. \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":18912,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H400364 JENNIFER LOWS, Employee CLAIMANT CRAIN KIA OF BENTONVILLE, Employer RESPONDENT RISK MANAGEMENT RESOURCES, Carrier RESPONDENT OPINION FILED FEBRUARY 10, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arka...","outcome":"denied","outcomeKeywords":["denied:3"],"injuryKeywords":["neck","shoulder","strain","back","wrist","cervical"],"fetchedAt":"2026-05-19T22:43:29.361Z"},{"id":"alj-H404336-2025-02-10","awccNumber":"H404336","decisionDate":"2025-02-10","decisionYear":2025,"opinionType":"alj","claimantName":"Nancy Valencia","employerName":"Washington Regional Medical Center","title":"VALENCIA VS. WASHINGTON REGIONAL MEDICAL CENTER AWCC# H404336 February 10, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/VALENCIA_NANCY_H404336_20250210.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"VALENCIA_NANCY_H404336_20250210.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H404336 \n \nNANCY VALENCIA, Employee CLAIMANT \n \nWASHINGTON REGIONAL MEDICAL CENTER, Employer RESPONDENT \n \nRISK MANAGEMENT RESOURCES, Carrier RESPONDENT \n \n OPINION FILED FEBRUARY 10, 2025 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On November 12, 2024, the above captioned claim came on for a hearing at Springdale, \nArkansas.   A pre-hearing conference was conducted on September 16, 2024, and a Pre-hearing \nOrder  was  filed  on September  17,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  June \n21, 2024. \n 3. The respondents have controverted the claim in its entirety. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to her low back on or about June 21, \n2024. \n\nValencia – H404336 \n \n-2- \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for  her  compensable  low  back \ninjury. \n 3. Whether Claimant is entitled to temporary total disability benefits from June 22, 2024,  \nto October 1, 2024. Other temporary total disability periods are reserved. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n 5. Respondents raise lack of notice as a defense in that June 24, 2024, was the first notice \nof the alleged work-related injury sustained on or about June 21, 2024. \n 6. The claimant’s weekly compensation rates. \n The claimant's contentions are as follows: \n“Claimant  contends  she  is  entitled  to  medical  treatment,  and  to \nTTD   from   6/22/2024   to   date   yet   to   be   determined,   for   her \ncompensable back injury. Claimant reserves all other issues.” \n \n The respondents’ contentions are as follows: \n“Respondents contend that Claimant did not sustain a compensable \ninjury  to  her  lower  back  on  6/21/24  or  at  any  other  time  while \nworking  for  Respondent/Employer.  Claimant  did  not  sustain  an \ninjury  in  the  course  and  scope  of  her  employment,  and  she  has \npreexisting  issues  with  regard  to  her  lower  back.  Respondents \ncontend  that  there  was  no  notice  of  the  alleged  injury  given  until \n6/24/24.” \n \n The  claimant  in  this  matter  is  a 43-year-old  female who  alleges  to  have  sustained  a \ncompensable  low  back  injury  on  or  about  June  21,  2024.  The  claimant  was  employed  by  the \nrespondent  at  that  time  as  a  CNA  working  with  elderly  adults.  On  direct  examination  the \nclaimant gave testimony about how the alleged injury occurred. \nQ Okay. So what happened on June 21\nst\n of 2024? \n \nA I  was  at  work  since  8:00  in  the  morning.  I  was  hurting – \nprior  to  that  I  had  some  pain,  but  that  day  I  did  my  normal  work \nduring  the  morning.  Then  we  got  this  patient,  Mr.  Parker,  who \n\nValencia – H404336 \n \n-3- \ncame in and I was assigned to help him change his brief. He was – \nbecause he is no longer alive. He passed away. He was wheelchair \nbound completely, so we had to use a Hoyer to help him. \n \n But that day his wife did not put the sling under him, so we \nhad  to  improvise.  We  had  to  transfer  him  manually.  So  it  took \nthree  of  us  to  help  him.  We  took  him  to  a  quiet  room,  which  we \nhad  a  bed  in  there  to  change  the  patients,  and  we  transfer  him.  I \nwas in the front; my coworker CNA, she was in the back; and the \nPT  occupational  therapist  was  on  the  left  of  him  helping.  And  we \ntried  to  transfer  him.  When  we  lift,  we  transfer  him  to  the  bed.  I \nimmediately felt something broke in my back. \n \nQ And what other symptoms did you have besides the feeling \nin your back? \n \nA Radiating  pain  from  my  back  all  the  way  down  to  my  leg. \nTingling, numbness. \n \nQ Which leg was it? \n \nA Right leg. \n \nQ And how far did the pain go down? \n \nA All the way to my toes. \n \n The claimant testified that she informed a coworker named “Patrice” at the moment of \nher  alleged  injury.  The  claimant  completed  her  work  with  the  patient  and  was  then  assigned  to \nwork at the front desk and did so for the remainder of her workday. Front desk work was not in \nthe claimant’s normal course of work duties but the employee who does that work was absent \nthat day. During cross examination the claimant admitted that she was not working the front desk \nbecause of her injury, but instead it was simply her turn to do so. The claimant testified on cross \nexamination about not reporting her alleged injury on June 21, 2024, as follows: \nQ I  asked  you  what  you  are  supposed  to  do  if  you  had  an \ninjury  and  you  said  you  guessed  you  would  need  to  report  it  to \nyour immediate supervisor; is that correct? \n \n\nValencia – H404336 \n \n-4- \nA That is correct. \n \nQ So on that day it would have been Lucy or Jason? \n \nA That is correct. \n \nQ But you did not do that that day; did you? \n \nA I did not. \n \nQ Why not? \n \nA I  was  hoping  that  I  was  going  to  feel  better.  I  was  hoping \nthat I will go home, take something for the pain, and the next day I \nwas going to be okay. \n \nQ And you already had pain medication at home? \n \nA No. I had some Tylenol. They didn’t give me – when  I \nwent  to  the  doctor  that  day,  they  gave  me  some – the  prior  week \nbefore,   they   gave   me   some   prednisone,   so   I   finished   that \nprednisone. I don’t remember if they gave me pain meds. I don’t \nbelieve so. \n \nQ So  you  are  saying  that  when  you  went  to  Mercy  Urgent \nCare is when you got medication? \n \nA The prednisone. \n \nQ Prior to June 21\nst\n, though? \n \nA Yes. Before. \n \n Late  in  the  night  on  June 21,  2024,  the  claimant  sought  medical  care  at  Northwest \nMedical  Center,  Bentonville,  emergency  department.  Following  is  a  portion  of  that  medical \nrecord: \nBasic Information \nTime seen: Date & time 06/22/2024 00:50:00, Initial Time Seen \nTime  Initially  Seen:  06/22/2024  00:51  by  GARIBALDI,  BYRON \nT MD \n \nHistory source: Patient \n\nValencia – H404336 \n \n-5- \nArrival mode: Private vehicle, walking. Private vehicle \nHistory limitation: None \nAdditional  Information:  Chief  Complaint  from  Nursing  Triage \nNote: Chief Complaint \n6/21/2024  22:22  CDT.  Chief  Complaint.  Pt  states  she  has  had \nsciatic pain x 2 weeks and it got worse today. Pain is in rt lg. \n \nHistory of Present Illness \nThe  patient  presents  with  lower  extremity  pain.  The  onset  was  2 \nweeks  ago.  The  course/duration  of  symptoms  is  constant.  Type  of \ninjury:  none.  The  character  of  symptoms  is  pain.  The  degree  at \npresent is moderate. The exacerbating factor is none. The relieving \nfactor is none. \n \nThe  patient  presents  with  back  pain  and  lumbar  pain.  The  onset \nwas 2 weeks ago and gradual. The course/duration of symptoms is \nconstant.  Type  of  injury:  none.  Location:  Right  lumbar  sacral. \nRadiating  pain:  right  lower  extremity.  To  the  right  foot.  Right \nbuttock. The character of symptoms is sharp and achy. The degree \nat  onset  was  moderate.  The  degree  at  present  is  moderate.  There \nare  exacerbating  factors  including  movement  and  bending  over. \nThe relieving factor is none. Risk factors consist of none. Therapy \ntoday:  see  nurses  notes.  Associated  symptoms:  none.  See  na. \nPatient reports that she started having low back pain rating down to \nthe  right  foot  2  weeks  ago.  She  states  she  has  been  to Mercy \nHospital twice for the same problem. She was placed on tramadol, \nMedrol  Dosepak  and  cyclobenzaprine.  She  states  none  of  these \nmedications  have  helped.  She  continues  having  pain  in  the  lower \nback  rating  down  to  her  right  foot.  She  states  she  went  to  work \nyesterday  and  seem  to  make  the  pain  worse.  Patient  denies  any \nfever  or  rash.  She  denies  any  abdominal  pain.  She  denies  any \nincontinence.  She  denies  any  other  neurological  changes.  She \ndenies   any   previous   medical   problems.   She   still   has   some \ncyclobenzaprine  at  home.  She  states  she  finished  her  Medrol \nDosepak already. \n \n*** \nImpression and Plan \nDiagnosis \nAcute right sciatica; low back pain. \n \nPlan \nCondition: Stable. \nDisposition: Discharged: Time 06/22/2024 01:02:00, to home. \nPrescriptions: Prescriptions \n\nValencia – H404336 \n \n-6- \nPharmacy: \nNarcan 4 mg/0.1 mL nasal spray (Prescribe): 4 mg Nasal, Once use \nas directed; may repeat every 2 to 3 minutes until patient responds, \n2 EA, 1 Refill(s) \nIndomethacin  25  mg  oral  capsule  (Prescribe):  1-2  cap(s),  Oral, \nTID, PRN PAIN, TAKE with food or milk, 15 cap(s), 1 Refill(s). \noxycodone  5  mg  oral  tablet  (Prescribe):  See  instructions,  ½  tab(s) \nOral q6H SEVERE PAIN, PRN, for pain, 20 tab(s), 0 Refill(s). \nLimitations: No work for 5 days. \nFollow  up  with:  CHRISTOPHER  HARDIN  Within  1  to  2  days; \nSCOTT   MUSICK   Within   2   to   4   days.   Call   for   follow   up \nappointment.  \nCounseled:   Patient,   Family,   Regarding   diagnosis,   Regarding \ndiagnostic     results,     Regarding     treatment     plan,     Regarding \nprescription, Patient indicated understanding of instructions. \nOrders: ADT Order \nAdmit/Transfer/Discharge: \nDischarge  patient  (Order):  6/22/2024  01:10,  CDT,  to  Home/Self \nCare. \n \n On  June  23,  2024,  the  claimant  returned  to  Northwest  Medical  Center,  Bentonville, \nemergency department. Following is a portion of that medical record: \nAdditional  information:  Chief  Complaint  from  Nursing  Triage \nNote: Chief Complaint \n6/23/2024  00:23  CDT.  Chief  Complaint:  right  sciatic  pain  seen \nhere last night for same, also seen at Mercy 3 times. \n \nHistory of Present Illness \nPatient is a 43-year-old female who presents with right sciatic pain. \nPatient was seen here last evening  for the same  and also has been \nseen at Mercy Urgent Care several times over the last 2 weeks. She \ndescribes  constant,  aching,  severe  pain  radiating  down  her  right \nlower  extremity.  She  notes  some  numbness  and  tingling  to  her \nright lower extremity. She denies loss of bowel or bladder control. \nPain  is  worse  with  walking.  She  has  not  been  to  see  her  primary \ncare  physician  during  the  several  weeks.  Patient  notes  a  similar \nepisode about 4 years prior which resolved spontaneously. \n \n*** \nDifferential  Diagnosis:  Back  pain,  lumbar  strain,  disc  herniation, \nsciatica, spinal stenosis. \n \n*** \n\nValencia – H404336 \n \n-7- \nReexamination/Reevaluation \nPatient  was  treated  with  IM  pain  medication  and  given  another \nDecadron   shot   IM.   She   noted   some   relief   from   her   pain.   I \nexplained  to  the  patient  she  needs  to  go  see  her  primary  care \nphysician who will decide upon MRI versus physical therapy. She \nmay need a recommendation to the pain clinic. At this time there is \nno evidence of impending neurologic compromise. \n \nImpression and Plan \nDiagnosis \nRight sciatica \nPlan \nCondition: Improved. \nDisposition: Discharged: to home. \n \n The  claimant  was  seen  at  Advanced  Orthopedic  on  June  24,  2024.  The  medical  visit \nrepresents the first time the claimant’s medical records make any mention of a work-related \ninjury. \nNote: \nHPI: \nPain started 3 weeks ago the significantly worse with acute RIGHT \nL5 radio after lifting patient at work. \nSeen in wheelchair due to severe pain today. \nInitially managed with prednisone (no relief). \nER visit 1 week later, prescribed tramadol (no relief). \nUnable to put pressure on leg, feels like needles in foot. \nNumbness and weakness RIGHT L5 pattern. \n \n*** \nChief Complaint: back pain \nHPI: This is a 43 year old female who is being seen for evaluation \nof back pain. Onset or Duration: 6/5/2024. The patient reports back \nand   leg   symptoms   of   equal   intensity.   Symptoms   began   after \nambulating a patient at work. At their worst, symptoms are rated as \n10  out  of  10.  Symptoms  include  numbness  or  tingling  and  pain, \nand  in  the  right  leg.  Symptoms  are  aggravated  by  all  activities. \nSymptoms  improved  with:  prescription  pain  medication,  steroid \ninjection, and 6/21/2024. She has had no diagnostic studies. \n \n*** \nImpression/Plan: \n1. Lumbar Radiculopathy \n\nValencia – H404336 \n \n-8- \nRadiculopathy, lumbar region (M54.15) \nAssociated  diagnoses:  Low  Back  Pain  and  Intervertebral  Disc \nDegeneration, Lumbar \n \nPlan: Counseling – Sciatica \nMuscoskeletal  Care:  Most  patients  get  better  with  conservative \ncare  and  no  surgery.  NSAIDS,  hot  or  cold  therapy,  physical \ntherapy,  and  spine  injections  are  typically  recommended.  Surgical \nintervention   is   reserved   for   patients   that   fail   conservative \ntreatment. The surgery entails decompression and possible removal \nof some bone from around the spinal canal. Most patients are able \nto resume a normal, active lifestyle after appropriate treatment for \nsciatica. \nExpectations:  Sciatica  is  a  condition  where  the  sciatic  nerve  is \nirritated. It is a nerve that travels from the lower part of your spine \nto  your  feet.  Patients  typically  feel  cramps,  pins  and  needles,  or \nshooting  paints  in  their  legs.  An  increase  in  intrathoracic  pressure \nfrom  coughing  or  sneezing  may  aggravate  the  nerve  further.  A \nherniated  disc  caused  by  degeneration  of  the  spine  is  a  common \ncause  of  this  condition.  In  addition  to  the  pain,  there  may  be \nweakness  or  loss  of  bowel  or  bladder  control.  While  sciatica  is  a \nvery  common  condition,  a  minority  of  people  actually  experience \nsymptoms for longer than 6 weeks. \nContact  Office  if  pain  worsens.  If  numbness  and  tingling  become \nmore severe, or if you notice any change in your bowel or bladder \ncontrol. Patient has failed healthcare provider directed conservative \ncare (PT, medications) for over 6 weeks without significant change \nin pain and symptoms. \n \nThe claimant was also ordered an MRI of the lumbar spine at that time. It is the same day, June \n24, 2024, as the claimant’s first mention of a work-related  injury  to  her  medical  providers  that \nshe first reports a work-related injury to her employer. A document found at Claimant’s Exhibit \n2, pages 3-4, records her reporting of the incident and injury she alleges to have occurred on June \n21,  2024.  I  note  the  claimant’s  testimony  indicates  that  she  did  not  report  the  injury  to  a \nrespondent supervisor until June 25, 2024, but the documentation indicates it was done on June \n24, 2024. \n\nValencia – H404336 \n \n-9- \n On June 26, 2024, the claimant underwent an MRI of the lumbar spine without contrast at \nNorthwest Health Physicians Specialty Hospital. Following is a portion of that diagnostic report: \nIMPRESSION: \nProminent  right  foraminal  disc  extrusion  at  L5-S1  causing  severe \nright foraminal stenosis. \n \n On  July  1,  2024,  the  claimant  was  seen  by  Dr.  Larry  Armstrong,  a  neurosurgeon. \nFollowing is a portion of that medical record: \nHistory of Present Illness \nLumbar Spine Intake (Brief): the patient is being seen for an initial \nlumbar  spine  evaluation  and  is  referred  by  a  physiatrist  and  Dr. \nKent Hagen referred this 43-year-old female who is a Washington \nRegional  employed  as  a  CNA  who  was  lifting  a  patient  last  week \nand  had  a  severe  onset  of  pain  in  her  back,  gluteal  area  with \nparesthesias  down  the  right  leg.  By  that  evening  the  pain  was \nintolerable.  She  has  actually  been  to  the  ER  2  times  and  has  seen \nDr.  Hagen  in  consultation  for  the  severity  for  pain  as  well  as  the \nweakness  in  his  right  leg.  She  is  unable  to  dorsiflex  the  right  foot \nhas footdrop on the right side and can not walk without assistance. \nShe is in a wheelchair for evaluation today. Her pain and weakness \nthe  most  bothersome  things  for  her  as  well  as  severe  paresthesias \nin the right L5 distribution. Her pain follows L5 classically and the \nbig  toe  was  completely  numb  with  painful  dysesthesias.  She  is \nunable  to  dorsiflex  the  right  foot.  She  cannot  walk  again  without \nassistance. Her lumbar spine MRI scan reveals intra foraminal disc \nherniation L5-S1 with severe  compression of the  exiting L6 nerve \nroot on the right side with severe foraminal stenosis creating severe \nL5  nerve  root  compression.  There  is  some  disc  space  collapse  at \nL5-S1.  The  indication  for  this  visit  is  low  back  pain,  herniated \nlumbar  disc,  lumbar  degenerative  disc  disease,  sciatica  and  spinal \nstenosis,  back  pain,  buttock  pain,  lower  extremity  pain,  back \nstiffness, weakness, numbness, paresthesia, no bladder \ndysfunction,   no   bowel   dysfunction,   depressed   mood,   sleeping \nproblems  and  difficulty  concentrating.  The  patient  is  currently \nexperiencing symptoms. \n \n*** \nAssessment \n1. Depression (311) (F32A) \n2. Endometriosis (617.9) (N80.9) \n3. Fibromyalgia (729.1) (M79.7) \n\nValencia – H404336 \n \n-10- \n4. Prolactinoma (227.3) (D35.2) \n5. Herniated nucleus pulposus, L5-S1, right (722.0) M51.27) \n6. Lumbar radiculopathy (724.4) (M54.16) \n7. Nural foraminal stenosis of lumbar spine (724.02) (M46.061) \n8. Right foot drop (736.79) (M21.371) \n9. Low back pain (724.2) (M54.50) \n \nPlan \n1. Posterior  Lumbar  Lateral  Fusion  w/Instrumentation;  Status: \nComplete. Done: 28 June 2024. \n2.  Start:  oxycodone  HCI;  5  MG  Oral  Tablet;  TAKE  1  TO  2 \nTABLETS EVERY 4 HOURS AS NEEDED FOR PAIN. \n3. XR Spine Lumbosacral 2 Or 3 Views; Status: Hold for – Manual \nActivation; Exact Date: Requested for: Before next appointment. \n \n On  that  same  day,  Dr.  Armstrong  performed  surgical  intervention  on  the  claimant’s \nlumbar spine. Following is a portion of that operative report: \nProcedure:  TLIF  L5-S1  utilizing  Zimmer  10x22  mm  interbody \nexpandable  cage  filled  with  allograft  between  L5  and  S1.  Zimmer \n5.5 x 40 mm screws in L5 and 6.5 x 40 mm in S1 bilaterally, rods, \ncrosslink, lumbar decompressive laminectomy with full right-sided \nfacetectomy  L5-S1  excision  of  large  intra  and  extraforaminal  disc \nherniation   L5-S1   on   the   right,   posterior   spinal   fusion   L5-S1 \nutilizing  autograft  and  allograft,  C-arm  fluoroscopic  guidance  1g \nvancomycin powder, drain, SSEP. \n \n The  claimant  was  asked  on  direct  examination  about  prior  lumbar  spine  difficulties  as \nfollows: \nQ Okay.  And  before  this  accident  on  June  21\nst\n,  had  you  ever \ncontemplated or thought about having back surgery? \n \nA Never. I never thought that I was going to be going through \nsomething like this. \n \nQ So  prior  to  this  accident  on  June  21\nst\n of  this  year,  had  you \nhad back problems? \n \nA I  have  back  problems,  yes.  Also  shoulder  problems  and \nhips. I have fibromyalgia, so, yes, I have pain. \n \nQ And had you always been able to work with that? \n\nValencia – H404336 \n \n-11- \n \nA Yes. \n \nQ It  looks  like  from  some  of  the  evidence  that  has  been \nintroduced  that  a  week  or  two  before  this  accident  happened  you \nhad to leave work early one day. Do you recall that? \n \nA I did, yes. \n \nQ And why did you need to leave? \n \nA Like I said, I was having pain, sciatic pain those two weeks \nprior, so I wanted to go and see the doctor. \n \nQ And did you return to work the next day? \n \nA Yes, I did. \n \nQ And were you able to continue working? \n \nA Yes, I was able to continue working. I was actually feeling \nrelief  with – when   I   went  that  day,   I  was   prescribed  some \nprednisone and I was taking Tylenol, pain meds, and I was – \n \nQ So  prior  to  the  day  of  this  accident,  had  you  been  able  to \ncontinue to work? \n \nA Yes. \n \nQ Okay.  Now,  when  you  would  have  the  issues  with  the \nfibromyalgia,  the  shoulder,  the  knee  or  the  back,  did  you  see  a \nchiropractor? \n \nA I have, yes. \n \nQ Okay.  And  would  you  only  see  the  chiropractor  when  you \nwere having pain? \n \nA Not necessarily. I like going to the chiropractor for general \nwellness, also. For pain, yes, it helps me a lot. \n \nQ And you had had a couple of car accidents. Is that true? \n \nA Yes. I have had car accidents. \n \n\nValencia – H404336 \n \n-12- \nQ Okay.   And   after   those   car   accidents,   had   you   ever \nexperienced symptoms like you did when this incident occurred on \nJune 21\nst\n? \n \nA Never. \n \nQ Were you able to continue working through those times? \n \nA Yes, I was able to continue working. The chiropractor was \nmy treatment after the car accidents. \n \nQ Okay.  Do  you  recall  ever  having – when  you  would  have \nleg  pain  prior  to  this  accident,  do  you  ever  recall  it  going  all  the \nway to your toes? \n \nA No. Never. \n \nQ How far would it go down? \n \nA Just  sciatic  pain  down  behind  my  leg,  but  never  numbness \nor tingling all the way to my toes. \n \nQ At what part of your leg would it stop? \n \nA Probably  in  the  back  part  of  my – how  do  you  call  this \n(indicating). \n \nQ Calf? \n \nA Yes. \n \n The claimant’s testimony regarding lumbar spine difficulties affecting her right leg only \nto  her  calf  but  never  to  her  toes  is  directly  contrary  to  the  medical  evidence  submitted  into  the \nrecord.  In  fact,  the  claimant had been  seen  at  Mercy  GoHealth  Urgent  Care  on  June  9,  2024, \ntwelve  days  prior  to  her  allegations  of  suffering  a  compensable  low  back  injury  on  June  21, \n2024. The medical report from that visit states: \nBack Exam: \nSymmetric hip hight, normal curvature. NO CVA tenderness. Pain \nis  reproducible  with  palpation  over  the  right  sciatic  nerve  root. \nPain  radiates  down  the  posterior  right  leg.  Pain  is  exacerbated  by \n\nValencia – H404336 \n \n-13- \nwalking – standing does not cause increased pain. Reports transient \nnumbness and tingling in the toes of the right foot. \n \nThe report also states, “Reports she has been applying ice and been taking ibuprofen without \nimprovement.  She  has  had  this  before  and  requires  a  steroid  for  resolution.  Is  having  difficulty \nsleeping at night due to the pain. Has missed some work due to pain also.” The claimant was \nprescribed prednisone during that visit. \n Medical  records  introduced  by  the  respondent  certainly  show  the  claimant  to  have  had \nlong-standing, chronic lumbar spine difficulties. A July 7, 2017, record from MANA Fayetteville \nDiagnostic Clinic discusses the claimant’s chronic low back pain but does note “no radiation.” A \nWashington Regional emergency department record dated September 18, 2020, states: \nChief Complaint \nCo right sided low back pain, saw back doctor “only gave my \nmeloxicam...not  helping”  pain  ongoing  for  months,  this  week \n“constant pain.” Denies known injury or urinary issues. \n \nHistory of Present Illness \nChief complaint: Back pain. \nHistorian:  History  provided  by  patient.  Patient  is  a  39-year-old \nfemale in today for evaluation of back pain. Patient states she has a \nhistory  of  sciatica  as  well  as  fibromyalgia  is  states  for  last  month \nshe  has  had  constant  pain.  She  has  seen  and  evaluated  by  her \northopedic surgeon who is a back specialist inserted meloxicam as \nwell  as  started  physical  therapy  2  days  ago.  She  states  physical \ntherapy she has had difficulty with the pain. She  has had no  fever \nor  shills.  Denies  nausea  vomiting.  Denies  any  loss  of  bowel  or \nbladder  and  denies  any  unilateral  pain  or  weakness.  Movement \nmakes  his  symptoms  worse  and  nothing  seems  to  make  better. \nPatient is a nondiabetic. \nMechanism of injury: No injury. \nLocation: Right back. \n \n The claimant was examined on April 6, 2021, at Fir Chiropractic as a result of an April 1, \n2021,  motor  vehicle  accident.  The  medical  records  show  complaints  of  cervical  pain  and \n\nValencia – H404336 \n \n-14- \nlumbosacral  pain/spasms.  The  claimant  treated  with  Fir  Chiropractic  more  than  ten  times \nbetween April 6, 2021, and June 4, 2021.  \n On June 16, 2021, the claimant was again seen at Fir Chiropractic as a result of another \nmotor vehicle accident that occurred on June 9,  2021. The claimant complained of cervical and \nlower lumbar pain. The claimant treated at least ten times with Fir Chiropractic between August \n16, 2021, and September 14, 2021. \n The claimant, for a third time, began to treat with Fir Chiropractic on March 27, 2023, for \na  motor  vehicle  accident  that  occurred  on  March  23,  2023.  The  claimant  complained  of  lower \nlumbar   pain   and   right   lumbosacral   pain/spasms.   The   claimant   received   treatment   at   Fir \nChiropractic at least 22 times between March 27, 2023, and July 7, 2023.  \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n It  is  without  question  that  the  claimant  does  have  objective  findings  of  derangement  in \nher lumbar spine.  Both  the  June  26,  2024,  MRI  results  and  Dr.  Armstrong’s  July  1,  2024, \noperative  report  bear  that  issue  out.  However,  in  review  of  the  evidence  in  its  totality,  I  do  not \nbelieve that the claimant’s current condition is the result of any event or incident that occurred on \nor about June 21, 2024, while performing employment services for the respondent.  \nThe  credibility  of  witnesses  and  the  weight  to  be  given  to  their  testimony  are  matters \n\nValencia – H404336 \n \n-15- \nsolely within the province of the Commission.  Ringier America v. Combs, 41 Ark. App. 47, 849 \nS.W.2d 1 (1993). \n The  claimant,  who  clearly  has  long-standing,  chronic  back  problems,  did  not  report  the \nincident  when  or  shortly  after  it  occurred,  even  though  she  had  the  opportunity  to  do  so  as  she \nremained  at  work  the  rest  of  that  day.  The  claimant  then  reports  late  that  same  night  to  the \nemergency  department  for  sciatic  pain  and  reported  an  onset  of  that  pain  two  weeks  prior  and \ndenied any injury. The claimant then returns the next day to the emergency department and still \nfails  to  report  any  injury  as  the  source  of  her  problems,  much  less  a  work  injury.  Instead,  she \nstates: \nPatient is a 43-year-old female who presents with right sciatic pain. \nPatient was seen here last evening  for the same  and also has been \nseen at Mercy Urgent Care several times over the last 2 weeks. \n \n*** \nShe  has  not  been  to  see  her  primary  care  physician  during  the \nseveral  weeks.  Patient  notes  a  similar  episode  about  4  years  prior \nwhich resolved spontaneously. \n \nOn  June  24,  2024,  the  claimant  does  mention  a  work  lifting  incident  but  says  the  pain  started \nthree weeks ago. \n The claimant’s testimony regarding her history of “back problems” is concerning. The \nclaimant does admit prior back problems which she certainly had but downplays the seriousness \nof her condition prior to her alleged June 21, 2024, injury. Specifically, the claimant denies any \nhistory  of  her  back  pain  causing  her  difficulties  that  radiate  to  her  toes,  testifying  on  direct \nexamination  that  she  did  have  sciatic  pain  but  that  would  only  go  to  her  calf.  However,  just \ntwelve days prior to her allegations of a compensable back injury, which causes radiation down \nher  right  leg  and  to  her  toes,  the  claimant  reported  to  Mercy  Urgent  with  back  pain  with \n\nValencia – H404336 \n \n-16- \n“transient numbness and tingling in the toes of the right foot.” The claimant is unable to prove \nthat she sustained a compensable low back injury on or about June 21, 2024. The claimant’s \ncurrent condition appears to be a continuation of her long-standing, chronic low back difficulties \nand  not  the  result  of  any  work-related  incident  on  or  about  June  21,  2024,  as  the  claimant  is \nunable to prove that that incident occurred. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nSeptember 16, 2024, and contained in a Pre-hearing Order filed September 17, 2024, are hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \na compensable injury to her low back on or about June 21, 2024. \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment. \n 4. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits. \n 5. The claimant has failed to prove by a preponderance of the evidence that her attorney \nis entitled to an attorney’s fee in this matter. \n 6. The respondent’s lack of notice defense is moot. \n 7. The issue of the claimant’s weekly compensation rates is moot. \n\nValencia – H404336 \n \n-17- \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":31048,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H404336 NANCY VALENCIA, Employee CLAIMANT WASHINGTON REGIONAL MEDICAL CENTER, Employer RESPONDENT RISK MANAGEMENT RESOURCES, Carrier RESPONDENT OPINION FILED FEBRUARY 10, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington C...","outcome":"denied","outcomeKeywords":["granted:1","denied:5"],"injuryKeywords":["back","lumbar","strain","herniated","shoulder","knee","hip","cervical"],"fetchedAt":"2026-05-19T22:43:31.431Z"},{"id":"alj-H403560-2025-02-09","awccNumber":"H403560","decisionDate":"2025-02-09","decisionYear":2025,"opinionType":"alj","claimantName":"Todd Smith","employerName":"Cgi Federal, Inc","title":"SMITH VS. CGI FEDERAL, INC. AWCC# H403560 February 09, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SMITH_TODD_H403560_20250209.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SMITH_TODD_H403560_20250209.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:31:56.226Z"},{"id":"alj-H304408-2025-02-07","awccNumber":"H304408","decisionDate":"2025-02-07","decisionYear":2025,"opinionType":"alj","claimantName":"Charles Anderson","employerName":"White Hall School District","title":"ANDERSON VS. WHITE HALL SCHOOL DISTRICT AWCC# H304408 February 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ANDERSON_CHARLES_H304408_20250207.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ANDERSON_CHARLES_H304408_20250207.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM No H304408 \n \nCHARLES ANDERSON, EMPLOYEE       CLAIMANT \n \nvs. \n \nWHITE HALL SCHOOL DISTRICT,  \nSELF-INSURED EMPLOYER                  RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOC., TPA         RESPONDENT \n \n \n \nOPINION & ORDER FILED 7 FEBRUARY 2025 \n \n \nThis claim was heard before Arkansas Workers’ Compensation Commission (AWCC) \nAdministrative Law Judge JayO. Howe on 14 November 2024 in Pine Bluff, Arkansas. \n \nThe claimant was represented by the Wren Law Firm, Mr. Daniel E. Wren. \n \nThe respondents were represented by Worley, Wood & Parrish, Ms. Melissa Wood. \n \nSTATEMENT OF THE CASE \n \n The parties participated in a prehearing conference on 27 August 2024. A \nPrehearing Order was entered the same day. On the day of the hearing, that Order was \nentered into the record without objection as Commission’s Exhibit No 1. As outlined in the \nPrehearing Order, the parties agreed to the following: \nSTIPULATIONS \n 1. The AWCC has jurisdiction over this claim. \n2. The self-insured employer/employee/TPA relationship existed at all relevant \ntimes, including 3 April 2023, when the claimant suffered an accepted \ncompensable injury to his back. \n \n3. At the time relevant to this matter, the claimant was earning an average \nweekly wage of $820.20 per week, which would entitle him to compensation \nrates of $547 and $410 per week for Temporary Total Disability (TTD) and \nPermanent Partial Disability (PPD), respectively. \n \n\nANDERSON- H304408 \n2 \n \n4. The claimant has been assigned a permanent disability rating of 7% to the \nbody as a whole. \n \nISSUES \n1. Whether the claimant is entitled to permanent and total disability benefits \nor, in the alternative, wage loss disability benefits.\n1\n \n \n 2. Whether the claimant is entitled to an attorney’s fee. \n All other issues are reserved. \nCONTENTIONS \n The claimant contended that he “is not able to return to his current employment and \ntherefore is entitled to wage loss.” \n The respondents contended that “all appropriate benefits have been and are \ncontinuing to be paid with regard to this matter.” \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witnesses, observing their demeanor, I make the \nfollowing findings of fact and conclusions of law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The stipulations as set forth above are accepted. \n3. The claimant has proven by a preponderance of the evidence that he is \nentitled to permanent and total disability benefits. \n \n4. The claimant has proven by a preponderance of the evidence that he is \nentitled to an attorney’s fee under A.C.A. § 11-9-715 on the indemnity \nbenefits awarded in this Opinion. \n \n \n1\n The Prehearing Order indicated that the claimant intended to seek only wage loss \ndisability benefits at the hearing. Before going on the record, and then again once on the \nrecord, Claimant’s counsel stated that between the entry of the Prehearing Order and the \nhearing, the claimant’s circumstances had changed. He notified the respondents that he \nintended to seek permanent and total disability benefits at the hearing and that wage loss \nbenefits would be sought in the alternative. The respondents did not object to that \namendment of the issues. \n\nANDERSON- H304408 \n3 \n \nSUMMARY OF THE EVIDENCE \n The claimant and Cecilia Brunson, a vocational consultant called by the \nrespondents, testified at the hearing. \n The record consists of the hearing transcript and the following exhibits: \nCommission’s Exhibit No 1 (the Prehearing Order); Claimant’s Exhibit No 1 (three index \npages and 43 pages of medical records); Respondents’ Exhibit No 1 (an index page and three \npages of medical records); and Respondents' Exhibit No 2 (an index page and 14 pages of \nnon-medical records, including Cecilia Brunson’s resume’ and reports that she authored). \nTESTIMONY \n  Claimant Charles Anderson \nThe claimant is fifty-eight years old. He has a high school diploma, a drywall \ncertificate from 1996, and general knowledge of electrical, plumbing, HVAC, painting, and \nroofing work. He testified that he worked for the respondent-employer for about six months \nas a maintenance man. His duties included maintaining the school district’s buildings and \nstructures, with regard to “electrical, plumbing, painting, drywall, HVAC... whatever came \nup.” \n On 3 April 2023, the claimant injured his back while leaning into the rear of a van to \nlift a box of ceiling tiles. He has been unable to work since. The respondents accepted his \nback injury claim as compensable and began providing benefits. \n The claimant received treatment with Trent Tappan, PA-C, at OrthoArkansas and \nwas eventually diagnosed with a herniated disc. His care included some injections, which \nhe said provided some temporary relief. Surgical options were discussed, but the claimant \nwas reluctant to undergo any operation based on his understanding of friends and family \nwith back problems that did not have good post-surgical outcomes. According to the clinic \nnotes, Mr. Tappan agreed with his decision not to attempt corrective surgery. \n\nANDERSON- H304408 \n4 \n \nThe claimant eventually underwent a Functional Capacity Evaluation (FCE). He \ntestified that he did not tolerate the physical exertion of the testing well. Unrelated to his \nback injury, the claimant underwent treatment for cancer in his stomach around the same \ntime. Part of that treatment included medication for pain. His primary cancer treatments \nconcluded on 27 August 2024; but he testified that he continues to receive treatment every \ntwo months to reduce the risk of recurrence. He attributed some ongoing fatigue to his \ncancer treatments.  \n The claimant’s cancer doctor ordered a rollator, which he still uses on occasion. He \nappeared at the hearing with a cane, which he uses on a daily basis. The claimant testified \nthat his back injury causes constant pain. On a scale of zero to ten, his pain can go up \ntowards a ten. He is most comfortable when laying down and must lay down frequently \nthroughout the day to reduce his pain. He described the baseline pain he experiences when \neven laying down as a six out of ten. He also described experiencing some numbness and \nweakness in his legs that he relates to his back injury. Sudden weakness in his legs has \ncaused him to fall on occasion. \n According to the claimant, he needs some help getting dressed in the mornings \nbefore moving to a recliner. He denies being able to do most household chores or mow his \nyard. After about 30 minutes of sitting in his recliner, he becomes uncomfortable and needs \nto move around or change positions. He is able to find relief at times sitting in a chair at his \nkitchen table, but he often needs to lay down in bed due to pain and discomfort. According \nto his testimony, the claimant often spends about half of the day lying in bed. He has \nrecently been unable to perform his ordinary duties as a deacon in his church because he \ncannot sit and move about the church during the services, which usually last two-and-a-half \nhours or so. The claimant testified that he began treating with a pain management doctor \nthe day before the hearing. \n\nANDERSON- H304408 \n5 \n \nBefore he began working for the respondent-employer, the claimant worked as a \nmaintenance supervisor at Saracen Casino. In that role he managed the work assignments \nof a crew of twelve workers and provided as-needed assistance in their assigned tasks \nthroughout the day. The claimant explained that he used a computer-based workflow \nmanagement system to direct assignments to his employees. He denied, however, that he is \ngenerally knowledgeable of computers. Before leaving Saracen, he also worked as a food \nand beverage supervisor, managing the stocking and service at some of the bar areas. \nThe claimant explained that his general electrical knowledge includes wiring sockets and \nreplacing light fixtures, while his plumbing experience includes working under sinks, drain \ncleanouts, and the like. His other jobs include working as a maintenance supervisor at a \ndrug distribution company and working as a self-employed handy man. \n The claimant stated that he has worked in physical maintenance jobs for his entire \ncareer; but he is not licensed in any of the manual labor fields in which he has worked. He \nalso testified that he has never worked in an office or in a sedentary job setting. He would \nlike to be working. The claimant became visibly upset when trying to explain how being \nunable to return to work and being unable to earn a living since his injury have impacted \nhis life. Not being able to work has worn on his mental state and caused tension in his \nmarriage. \nAt some point between his deposition and the hearing, the claimant began receiving \nSocial Security Disability benefits. On his application for those benefits, he listed his back \ninjury and cancer as the reasons for his disability. He denied any other sources of income. \n Respondent’s Witness Cecilia Brunson \n Ms. Brunson testified that she is a vocational consultant who, among other things, \ncompiles job reports and labor market surveys. She also assists injured workers with \n\nANDERSON- H304408 \n6 \n \ngetting back into the workforce. The respondents offered her as a vocational expert, and the \nclaimant agreed to the same. \n The claimant and Ms. Brunson met over the telephone to discuss his injury, work \nhistory, education, and his treatment plan, along with his daily living activities. She \nsubsequently authored two reports related to her opinion on his ability to return to work \nand potentially suitable job opportunities. Ms. Brunson said that jobs in the sedentary \nclassification would require sitting for six out of eight hours per workday. She believed that \nthe claimant could find work in “sedentary jobs that involve a high school diploma, little or \nno work experience, with on-the-job training and working with the public.” [TR at 52.] She \ntestified that his being able to speak and get along well with others were among the \ntransferable skills he carried from his previous career. Ms. Brunson also felt like the \nclaimant had basic computer skills. She acknowledged, however, that the claimant’s age \nwould likely make for “significant” vocational adjustments in learning new skills. \nMs. Brunson offered to help the claimant with building a resume’ and interviewing \nskills, but he had not taken her up on that offer at the time of the hearing. She explained \nthat she assumed there was no need to follow up with him because she knew that the claim \nwas progressing towards a hearing. \n On cross-examination Ms. Brunson said that they did not discuss whether the \nclaimant could actually sit for six hours out of the day. \nQ:  And if he can’t sit six hours out of a day, that would eliminate these \nsedentary jobs that you have listed, is that correct? \nA:  That’s correct. \nQ:  Okay. And if he had to get up, move around, and take frequent \nunscheduled breaks because of his pain, would that eliminate these jobs and \nany other jobs in the national economy? \nA:  Okay. So let me add this, an accommodation—if an accommodation was \napproved, if he needed to sit and stand, then, it would be up to the employer. \nIt’s possible that they would put those in place. \nQ:  If he got an accommodation? \nA:  Absolutely, if he got an accommodation. \n\nANDERSON- H304408 \n7 \n \nQ:  But without an accommodation, he couldn’t work any jobs in the national \neconomy, if he had to take frequent and unscheduled breaks due to pain? \nA:  That is correct. \nQ:  Okay. And can attendance affect a person’s ability to have—maintain a \njob? \nA:  Yes. \nQ:  In your deposition, I asked if a person was to miss more than one day per \nmonth, more than 12 days per year, do you know of any jobs Mr. Anderson—\nif her were to miss 12 days of work per year, because of his pain, are there \nany jobs in the national economy that he could do? \nA:  Would this be... unscheduled leave? \nQ:  This would be calling in sick. \nA:  Okay. \nQ:  More than once a month. Are there any jobs in the national economy he \ncould take? \nA:  No. \n \n[TR at 57.]  \nQ:  If he needs to sit or recline—or recline throughout the day, are there any \njobs in the national economy he can have unless an employer makes a special \naccommodation? \n... \nA:  No jobs. \n \n[TR at 64.] \n Ms. Brunson testified that she had not spoken with the claimant since their \ntelephone meeting, but at the time they spoke he was taking hydrocodone his oncologist \nprescribed to help with his pain. She was aware that he was being referred to a pain \nmanagement doctor for chronic pain care and had not yet had that appointment at the time \nof their call. She testified that some jobs could allow the use of narcotic pain medication \nwhile working. Ms. Brunson further testified that she recalled the claimant had just ended \nhis chemotherapy when they spoke and that he did not feel ready to go back to work at that \ntime. \n Further Testimony from the Claimant \n The claimant disagreed with Ms. Brunson’s understanding of his computer \ncompetency and explained that his familiarity with computers is mostly limited to the \n\nANDERSON- H304408 \n8 \n \nworkflow functions he was taught to use for his job at Saracen. That involved opening a \nscreen that listed the day’s work needs, assigning employees to the tasks, reviewing \ncompleted work, and printing off a daily report for his supervisor. He denied more general \nfamiliarity with using computers and stated that his grandchildren had made unsuccessful \nattempts to teach him to learn more about computers so he could navigate the internet and \nentertain himself throughout the day. \nThe claimant explained that he was not ready to consider new employment when he \nspoke with Ms. Brunson.  \nA:  Because at that time, I also had—kind of was finishing up on my cancer, \nplus I had my back issues; so I—at that meeting, I made that statement, \nbecause [I was], actually, sick and I wouldn’t want to try to get a job and \nknow I wouldn’t be able to perform that job. I mean, even if I said that I can \ndo this or my qualifications, they want to hire me, you know, but as far as \ndoing—actually, doing the job and I know that state I’m in, because I had \ncancer... and finishing up, then, I still go this back problem to deal with.  \n \n[TR at 80.]  \n. . .  \nQ:  Do you feel like you have barriers to keep you from trying to find a job in \nthat sedentary class now? \nA:  Yes, because I can’t do regular household work. \nQ:  Right. \nA:  You know, I can’t sit too long, stand too long. Just like now, I have to do \ncertain movements just to get some relief, but it’s not completely relief; so I \nreally wouldn’t want to waste nobody else’s time to try to go and know I can’t, \nthe problems I’m having at home on a day-to-day basis. \n \n[TR at 81.] \nThe claimant disagreed with the FCE qualifying him for sedentary positions and \nwith Mr. Tappan’s return-to-work release. He also explained that he was only benefitting \nfrom temporary relief from injection therapy at the time of his release without any \nrestrictions and last visit with Mr. Tappan. In the absence of effective treatment options for \nhis back injury, his overall condition has deteriorated in the time since his release. \n\nANDERSON- H304408 \n9 \n \n Medical and Documentary Evidence \n The claimant first saw Mr. Tappan at OrthoArkansas on 12 July 2023. The note \nfrom that visit provides: \nASSESSMENT/PLAN \nI have reviewed the X-rays of the lumbar spine, which were mild \ndegenerative changes. \nI had a long visit [with the claimant]. This poor man is miserable. He has had \na lot of severe pain in his back and leg for 3 months. He has not been able to \nwork because of the degree of pain. He has difficulty ambulating in the exam \nroom. I told him I would give him some more pain medication to have on \nhand. I prescribed to keep him off work for now until he returns. I would \nrecommend an MRI of his lumbar spine for further evaluation. Hopefully we \ncan get this done sooner rather than later. I suspect he has a disc herniation \nand if he does I also suspect he is going to need this treated likely with \nsurgery based on his presentation. Hopefully we get this done soon for him to \nget the MRI so that we can get him on the path to recovery. He says that he \nhas not been able to work in 3 months [and cannot pay his bills]. \n \n[Cl. Ex. No 1 (emphasis added unless noted otherwise).] \n The findings from a 14 July 2023 MRI scan included: \nL1-L2: Broad disc protrusion with bilateral subarticular and left greater than \nright foraminal component. Effacement of the exiting left L1 nerve root from \nforaminal disc protrusion. Likely effacement of the traversing left L2 nerve \nroot from subarticular disc protrusion. No spinal canal stenosis. Severe left \nneural foraminal stenosis. Mild right neural foraminal stenosis. \n \nL2-L3: Mild broad disc protrusion with bilateral subarticular and left greater \nthan right foraminal components. Mild bilateral facet osteoarthritis and \nligamentum flavum thickening. No spinal canal stenosis. Moderate left and \nright neural foraminal stenosis. \n \nIMPRESSION  \n \n1. At L1-L2, there is a broad disc protrusion with bilateral subarticular and \nleft greater than right foraminal components. Effacement of the exiting left \nL1 nerve root from foraminal disc protrusion. Likely effacement of the \ntraversing left L2 nerve root from subarticular disc protrusion. Recommend \ncorrelation for radiculopathy. \n \n2. At L2-L3, there is moderate left and mild right neural foraminal stenosis. \n \n\nANDERSON- H304408 \n10 \n \n3. Diffusely heterogeneous marrow signal, nonspecific. This can be seen with \nanemia or marrow conversion/myeloproliferative disorders. Clinical \ncorrelation is recommended. \n \n On 14 July 2023, Mr. Tappan noted a herniation of the nucleus pulposus and the \nfollowing: \nASSESSMENT/PLAN \nI reviewed the X-rays of the lumbar spine which reveal degenerative changes. \nI reviewed the MRI which reveals disc herniation at L1 to the left in the \nforamen with L1 nerve root impingement. \n \nI suspect Mr. Anderson is symptomatic from a disc herniation at L1-2 on the \nleft. He has a bit of L1 distribution pain in his left groin and thigh and down \nhis anterior thigh as well. Unfortunately, I do not think this is going to be an \neasy solution. I would say with a reasonable degree of medical certainty that \nthis disc herniation was rendered symptomatic from the injury involved at \nwork. However, unfortunately it is in the foramen, so I told him I do not \nthink surgery would be very straightforward. I suspect he [would] need a \ncomplete facetectomy to decompress the nerve root and interbody posterior \nfusion to address the instability from the facetectomy. I also told him I think \nthat would be a bit complicated at the level L1-2 right below the \nthoracolumbar injunction. We discussed more specific nonoperative \ntreatment. I would recommend a transforaminal epidural steroid injection at \nL1-2 on the left. I am hopeful maybe this will calm down his inflammatory \nsymptoms. I am also going to release him to light sedentary office work. They \nmay not be able to accommodate this. But I would like for him to be able to \nget out of the house and at least return to some kind of employment for the \ntime being. We will get this set up and I will see him back when the injection \nis complete. \n \n The claimant then returned to see Mr. Tappan on 18 August 2023. \nASSESSMENT/PLAN \nI had a very long visit with Mr. Anderson today about his symptoms and \nimages. I think he remains very symptomatic [from] the L1-2 level of his \nlumbar spine. We had a long conversation about further treatment options. \n[They discussed (1) no more treatment, (2) trying more injections, or (3) \nattempting a fusion surgery.] He really does not want to have surgery. He \nwants to try to avoid a fusion, and I think that is understandable. However, \nhe is also very symptomatic. He is doubtful that he is going to be able to \nreturn back to his regular occupation despite the treatment offered him and I \nthink that is actually somewhat understandable. He wants to consider \ndisability, and I told him that is up to him and his option. I do not want to \nput him through aggressive treatment or surgery if it’s not going to change \nthe overall outcome of his quality of life. And especially if he just does not \n\nANDERSON- H304408 \n11 \n \nwant to go that route. He wants to try another injection, which I think is fine. \nAs for now, I am going to keep him on his current work restrictions. We will \nset up a second injection at L1-2 on the left. I told him I would plan to see \nhim back after the injection and placement at maximum improvement and \nrelease him at that time. \n \n The claimant returned to OrthoArkansas and Mr. Tappan again on 2 November \n2023. The note from that visit provides: \nASSESSMENT/PLAN \nMr. Anderson returns after getting another transforaminal epidural steroid \ninjection at L1-2 on the left. This did help him quite a bit. He is doing better \ntoday. He still has some pain, but he is improved quite a bit I believe from \nwhere he began although he is still symptomatic. We had a long visit about \nfurther options. I think he is being rendered symptomatic from this disc \nherniation at L1-2 on the left. This was likely the result of this work-related \ninjury. We discussed some further treatment options. I told Mr. Anderson \nthat I think if he had surgery, he would likely need a facetectomy and a \nfusion. He really does not want to have surgery, and I would agree with that. \nI do not think it would be the overall best care homerun for him. It would be \nan option [...] but I agree with him right now. I [would leave] this alone. He is \nimproving and I think this will continue to improve. I do not think there is \nany need to repeat any more injections at this point. I plan to just release him \nand to place him at maximal medical improvement and release him to work \nwithout restrictions. But I will calculate an impairment rating based on the \ndisc herniation and a letter to follow. I will just see him back as needed. \n \n Mr. Tappan authored a letter on 3 November 2023 that assigned a seven percent \n(7%) impairment of the whole person based on the disc herniation at L1-2. \n The claimant underwent an FCE on 19 April 2024. His effort was evaluated as \nreliable, as he passed 46 of 46 consistency measures. He presented for the testing with a \ncane and utilized his cane throughout the testing. Although he was prescribed pain \nmedication at the time of his evaluation, he advised the evaluator that he had not taken the \nmedication on the day of his testing because it made him drowsy. The report indicates the \nclaimant’s expressed inability to do housework or yard work and his difficulty with \nstanding, lifting, and bending, among other things. He was assessed as being able to work \nin a sedentary job classification. \n\nANDERSON- H304408 \n12 \n \n The vocational evaluation and job market reports compiled by Ms. Brunson were \nincluded in Respondents’ Exhibit No 2. Her evaluation and report include the following: \nEMPLOYMENT HISTORY \nBuilding Maintenance Repairer (DOT #899.381-010 – a skilled occupation \nclassified in the medium category of physical work demands) [...] He reported \nhis job duties included reviewing work orders, performing electrical repairs to \nbuildings and equipment, roofing repairs, landscaping, plumbing repairs, \ncarpentry, ceiling repairs, painting, and some HVAC repairs. \n \nMr. Anderson reported working as a Building Maintenance Repairer at \nJefferson Regional Medical Center from 1990 to 1991 and at the Excelsior \nHotel from 1997 to 1998. He reported the job duties were the same as stated \nabove. \n. . .  \nMaintenance Supervisor (DOT #891.137.010 – a skilled occupation classified \nin the light category of physical work demands) Mr. Anderson reported he \nwas employed at Saracen Casino from August 2019 to October 2022. He \nreported his job duties included reviewing work orders, assigning work orders \nto employees, supervising up to ten employees, input work orders into the \ncomputer system, input status updates of work orders, assisting employees \nwith the completion of work orders involving some HVAC, plumbing, \nlandscaping, and other maintenance concerns that would arise. \n \nMr. Anderson reported working as a Maintenance Supervisor at Pine Bluff \nNursing Home, Arkansas Convalescent, and Davis Nursing Home at various \ntimes between 1980 and 2020. \n \nANALYSIS, GOALS, AND RECOMMENDATIONS \n \nBased on Mr. Anderson’s transferable skills, functional ability, records \nreviewed of his injury and past work history, he is capable of working within \nthe sedentary category of physical work demands. Recommendations for \nvocational rehabilitation services will include drafting a resume’, completing \na follow-up meeting to provide interview skills training and preparation, \nassist him with any online job application for which he needs assistance, and \nbegin completing regular job market research in his local area. The job \nmarket research will identify current job openings for which he can apply \nwith the eventual goal of returning to the workforce to a new occupation. \n \nThe job market research reports of 25 August 2024 and 18 September 2024 included, \namong some others, job openings for administrative assistants, customer service \nrepresentatives, administrative specialists, and receptionists. \n\nANDERSON- H304408 \n13 \n \nADJUDICATION \n As noted above, the claimant seeks a finding that he has been rendered permanently \nand totally disabled as a result of his compensable back injury. In the alternative, he seeks \nan award of wage loss disability benefits. \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nAs an initial matter, I find the claimant to be a very credible witness. He presented \nas sincere in testifying about his physical limitations and about the difficulty he \nexperiences getting through most days. \nA. THE CLAIMANT IS ENTITLED TO PERMANENT AND TOTAL \nDISABILITY BENEFITS. \n \nIt is not disputed that the respondents have accepted the claimant’s back injury as \ncompensable and have already paid some associated benefits, including permanent partial \ndisability benefits on his seven percent (7%) rating to the whole person. The claimant now \nseeks permanent and total disability benefits for that injury. Under Arkansas law, \n\nANDERSON- H304408 \n14 \n \n“permanent total disability” means an “inability, because of a compensable injury or \noccupational disease, to earn any meaningful wages in the same or other employment.” \nA.C.A. § 11-9-519(e)(1). The burden of proof is on the employee to prove his inability to earn \nany meaningful wages in the same or other employment. Id. § 11-9-519(e)(2). Permanent \ntotal disability must be determined in accordance with the facts. Id. § 11-9-519(c). \nWhen a claimant has been assigned an anatomical impairment rating to the body as \na whole, the Commission has the authority to increase the disability rating, and it can find \na claimant totally and permanently disabled based upon wage-loss factors. Milton v. K-Tops \nPlastic Mfg. Co., 2012 Ark. App. 175, 392 S.W.3d 364. Those factors include the claimant’s \nage, education, work experience, and other matters reasonably expected to affect his future \nearning capacity. A.C.A. § 11-9-522(b)(1). A claimant’s motivation to return to work may \nalso be considered. Milton, supra. \nThe law provides: \n(a)  Permanent benefits shall be awarded only upon a determination \nthat the compensable injury was the major cause of the disability or \nimpairment. \n \n(b)  If any compensable injury combines with a preexisting disease or \ncondition or the natural process of aging to cause or prolong disability \nor a need for treatment, permanent benefits shall be payable for the \nresultant condition only if the compensable injury is the major cause \nof the permanent disability or need for treatment. \n \nA.C.A. § 11-9-102(4)(F)(ii). A “major cause” is more than fifty percent (50%) of the cause and \nmust be established by a preponderance of the evidence. A.C.A. § 11-9-102(14). \n Here, the claimant is a fifty-eight-year-old man with a high school diploma who has \nbeen unable to return to work since his 3 April 2023 injury. He has labored most of his life \nin physical maintenance jobs, but he is not actually licensed in any of the trades for which \nhe has basic working knowledge. He has some supervisory experience, but those roles \nincluded working alongside the tradesmen and maintenance crews he was tasked with \n\nANDERSON- H304408 \n15 \n \nsupervising. His current physical limitations render him unable to perform basic household \nchores, let alone any number of tasks expected of someone working in physical building \nmaintenance. \n Per Tappan, the MRI revealed the claimant to have suffered a disc herniation at L1-\n2 with nerve impingement. The medical records clearly relate the claimant’s condition to \nhis accepted compensable back injury. I credit Mr. Tappan’s opinion on the nature and \norigin of the claimant’s symptoms. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 \nS.W.3d 878 (2002). \nMr. Tappan noted that the claimant was rendered miserable by his symptoms. He \nalso agreed with both the claimant’s concern about his ability to return to work and the \nclaimant’s reluctance to attempt surgical repair, as the benefits were not likely to outweigh \nthe risks (“I do not want to put him through aggressive treatment or surgery if it’s not going \nto change the overall outcome of his quality of life”). While the claimant’s injury is \nsignificant, he is not a good candidate for surgery. Mr. Tappan hoped that the claimant’s \ncondition might improve with some injection therapy; but those benefits did not \nmaterialize. The claimant’s initial relief from injection therapies was only temporary; and \nhe is now seeking ongoing pain management care for his chronic back pain. The claimant’s \nrelease with a seven percent (7%) whole-body impairment rating was consistent with his \ndisc herniation diagnosis; but his ability to function with that condition is more profound \nthan the numerical rating implies. That the claimant was released without physical \nrestrictions belies that his injury and resultant condition has rendered him with significant \nphysical limitations. \n The breadth of the claimant’s limitations is illustrated in the FCE report, which \nessentially found that while he could not work in any capacity that required moving about, \nlifting, bending, twisting, or carrying things (all required activities for one working in \n\nANDERSON- H304408 \n16 \n \nbuilding maintenance), he could possibly work from a mostly seated position. At the outset \nof the FCE, however, the claimant rated his pain while sitting for 30 minutes as “severe.” \nHe also rated his ability to sit through a workday as being with “much difficulty.” While he \nwas assessed as being able to sit at the “constant” level in his evaluation, the observational \nportions of the report frequently note that he was only sitting in order to take a break from \nthe various tasks and activities being evaluated. His ability to sit continuously and work for \nany extended period of time does not appear to have been explicitly observed. The reliability \nof his effort in the testing (passing 46 out of 46 consistency measures) as judged by his \nevaluators, is not inconsistent with his reliability as a witness in this matter as judged by \nme. \n The claimant testified that when he spoke with Ms. Brunson, towards the end of his \ncancer treatment, he did not feel well and was not yet in a position to return to working. He \nreported dealing with significant fatigue during his primary course of treatments. While his \nfatigue has mostly resolved since the completion of those treatments, his overall fitness to \nreturn to work has not improved. He continues to suffer from severe back pain (more so in \nthe absence of any prescription pain medication since his cancer treatments ended) and \nstruggles to find a comfortable position throughout the day, frequently adjusting how he is \nsitting or where he is sitting; but he most often must resort to lying down in order to seek \nrelief from the constant pressure on his herniated disc. And even when lying down, he still \nrates his pain at a six out of ten. This is understandable given the nature and nerve \ninvolvement of his lumbar disc injury.  \n The claimant’s prospects for re-entering the workforce in a new career field are \nmarginal at best. At nearly 60 years old with little education, profound mobility limitations, \nand bare computer competency, he is not likely to be able to transition into even a \nsedentary administrative assistant or receptionist role, similar to those presented in the job \n\nANDERSON- H304408 \n17 \n \nmarket reports. He has never worked in an office and is unfamiliar, even, with what such \nwork typically entails. His relatable skill deficits aside, the respondents’ own vocational \nexpert credibly testified that the claimant’s inability to work from even a seated position for \nan extended period of time, his requiring frequent and unscheduled breaks, and his \npotential (if not likely) need for absences due to pain intolerance essentially render him not \nhirable even in sedentary jobs. She also acknowledged that his advanced age makes for a \nsignificant retraining barrier. At the time that they spoke, he knew that his cancer \ntreatment was an additional barrier to beginning any new job. With those difficulties \nbehind him, the claimant still faces an unmanageable barrier in the pain and immobility \ncaused by his compensable back injury. \n I find the claimant’s preference for being able to return to work and earn a wage to \nbe sincere. I also find, however, that the preponderance of the evidence shows that his \ncompensable back injury has rendered him unable to do so and that his compensable back \ninjury is the major cause of his disability. He has, therefore, established his entitlement to \npermanent and total disability benefits. \n B. THE CLAIMANT IS ENTITLED TO AN ATTORNEY’S FEE. \n The respondents have controverted the claimant’s entitlement to the permanent and \ntotal disability benefits awarded herein. They are, therefore, liable for the allowable fees \nassociated with this litigation. The claimant is entitled to an attorney’s fee under A.C.A. § \n11-9-715 on the indemnity benefits awarded in and consistent with this Opinion. \nCONCLUSION AND AWARD \n The claimant has proven his entitlement to permanent and total disability benefits \nas a result of his compensable back injury. The respondents are directed to provide benefits \naccordingly. All accrued amounts shall be paid in a lump sum without discount, and this \n\nANDERSON- H304408 \n18 \n \naward shall earn interest at the legal rate until paid. A.C.A. 11-9-809. See Couch v. First \nState Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n The claimant’s attorney is entitled to a twenty-five percent (25%) fee on the benefits \nawarded herein. One-half (1/2) of the fee is to be paid by the claimant, and one-half (1/2) of \nthe fee is to be paid by the respondents, consistent with A.C.A. §11-9-715. See Death & \nPermanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2012). \n IT IS SO ORDERED. \n       ______________________________________ \n       JayO. Howe \n       Administrative Law Judge","textLength":36571,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM No H304408 CHARLES ANDERSON, EMPLOYEE CLAIMANT vs. WHITE HALL SCHOOL DISTRICT, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC., TPA RESPONDENT OPINION & ORDER FILED 7 FEBRUARY 2025 This claim was heard before Arkansas Workers’ Compensation Commis...","outcome":"granted","outcomeKeywords":["granted:6"],"injuryKeywords":["back","herniated","lumbar"],"fetchedAt":"2026-05-19T22:43:22.998Z"},{"id":"alj-H306653-2025-02-07","awccNumber":"H306653","decisionDate":"2025-02-07","decisionYear":2025,"opinionType":"alj","claimantName":"Clinton Steele","employerName":"Gemini Motor Transport","title":"STEELE VS. GEMINI MOTOR TRANSPORT AWCC# H306653 February 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/STEELE_CLINTON_H306653_20250207.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STEELE_CLINTON_H306653_20250207.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H306653 \n \nCLINTON STEELE, EMPLOYEE       CLAIMANT \n \nGEMINI MOTOR TRANSPORT dba LOVES \nTRAVEL STOP & COUNTRY STORE, EMPLOYER         RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nBROADSPIRE SERVICES, INC., CARRIER/TPA           RESPONDENT \n  \n \n \nOPINION FILED 7 February 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 8 January 2025 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nThe Barber Law Firm, Ms. Karen McKinney, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 8 January 2025. This case relates to an alleged workplace injury \nsustained on or about 23 April 2023.  \nA Form AR-C was filed by the claimant, through counsel, on 9 October 2023, \nclaiming gradual onset of lower back pain. The respondents denied the claim and retained \nMs. Karen McKinney, who entered her appearance via an email dated 13 November 2023. \n The respondents first moved for a dismissal for lack of prosecution on 16 April 2024. \nThe claimant objected to the dismissal on 7 May 2024. He also filed his prehearing \ninformation on that date. The respondents then filed their prehearing information on 3 \nJune 2024. After a prehearing conference, a Prehearing Order was filed on 19 June 2024, \nsetting the matter for a hearing on 18 September 2024. \n\nSTEELE- H306653 \n2 \n \n Then, on 15 August 2024, the claimant’s counsel advised, by way of a letter dated 14 \nAugust 2024, that he no longer represented the claimant in this matter. The hearing was \nremoved from the docket, and a letter dated 5 September 2024 was sent to the claimant \nasking whether he objected to his attorney’s withdrawal from the matter. The claimant did \nnot respond to that letter to object to the withdrawal of his counsel. An Order granted the \nwithdrawal was entered on 1 October 2024. \n On 2 October 2024, the respondents filed a second Motion to Dismiss the claim. \nTherein, they argued that more than six months had passed since the filing of the AR-C on \nthe claim. They also argued that the claimant’s refusal to participate in the discovery \nprocess, since those requests were propounded first in November of 2023 and then again in \nJune of 2024, evidenced his lack of prosecuting his claim. \n Notice of the respondents’ second motion was sent to the claimant, consistent with \nAWCC practices, via First Class Mail and Certified Mail, on 7 November 2024. Notice of the \nhearing on that motion was sent in the same fashion on 2 December 2024. When mailings \nare returned to the AWCC as not accepted or undeliverable, those mailings are appended to \nthe claim’s file. This file contains no such returned mailings. \nThe respondents appeared on 8 January 2025, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no bona fide request for a hearing on an issue ripe for litigation in this claim in the \nrelevant time preceding the filing of their motion. The claimant did not appear to resist the \ndismissal of his claim, which bolsters the respondents’ argument that he has either \nabandoned the claim or refused to prosecute it. The respondents offered a number of \ndocuments into the record which, collectively, were admitted as Respondents’ Exhibit No 1. \nThe exhibit included ninety-two (92) pages of relevant filings, deposition testimony,  and \ncorrespondence. \n\nSTEELE- H306653 \n3 \n \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4280,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H306653 CLINTON STEELE, EMPLOYEE CLAIMANT GEMINI MOTOR TRANSPORT dba LOVES TRAVEL STOP & COUNTRY STORE, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ BROADSPIRE SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED 7 February 2025 Heard before ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:43:25.131Z"},{"id":"alj-H305255-2025-02-06","awccNumber":"H305255","decisionDate":"2025-02-06","decisionYear":2025,"opinionType":"alj","claimantName":"Seth Stanley","employerName":"Novo Building Products LLC","title":"STANLEY VS. NOVO BUILDING PRODUCTS LLC AWCC# H305255 February 06, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/STANLEY_SETH_H305255_20250206.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STANLEY_SETH_H305255_20250206.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H305255 \n \n \nSETH A. STANLEY, EMPLOYEE CLAIMANT \n \nNOVO BUILDING PRODUCTS LLC, EMPLOYER RESPONDENT \n \nCHARTER OAK FIRE INS. CO., CARRIER/TPA RESPONDENT \n \n \n OPINION FILED FEBRUARY 6, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope \nCounty, Arkansas. \n \nClaimant represented by GARY DAVIS, Attorney, Little Rock, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On December  17,  2024,  the  above  captioned  claim  came  on  for a hearing  at Russellville, \nArkansas.  A pre-hearing conference was conducted on August 22, 2024, and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.   The employee/employer/carrier relationship existed on August 8, 2023. \n            3.   Claimant sustained a compensable injury regarding his left knee. \n            4.   The compensation rates are $488.00 for temporary total disability and $366.00 for \npermanent partial disability.  \n\nStanley-H305255 \n2 \n \n However, at the hearing, claimant disputed the stipulation as to his temporary total disability \n(TTD) rate, and the parties arrived at a new stipulation of $564.00 for TTD and $423.00 for \npermanent partial disability (PPD).\n1\n   \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n            1. Whether claimant is entitled to temporary total disability benefits. \n            2. Whether claimant is entitled to medical benefits. \n            3. Attorney’s fees. \n All other issues are reserved by the parties. \n In  their  post-hearing  briefs,  the  parties  agreed  that  the  issues being  litigated  was  whether \nclaimant was entitled to TTD from February 19, 2024, through September 5, 2024.  The parties had \nreached an agreement regarding claimant’s need for additional medical treatment following the entry \nof  the  prehearing  order,  and  therefore,  claimant  removed  his  claim  for  additional  medical  benefits \nfrom this hearing, that issue being now reserved.   \n The claimant contends that “He sustained admitted compensable injuries.  His authorized \ntreating  physician,  Dr.  Kirk  Reynolds,  has  indicated  that  the  claimant  has  not  reached  maximum \nmedical  recovery.    His  temporary  disability  was  inappropriately  discontinued.    Claimant  contends \nentitlement to payment of temporary total disability benefits, beginning with the last payment of said \nbenefits and continuing through a date yet to be determined.  This matter has been controverted for \npurposes of attorney’s fees.  Claimant’s attorney respectfully requests that any attorney’s fees owed by \nclaimant on controverted benefits paid by award or otherwise be deducted from claimant’s benefits \n \n1\n Permanent  partial  disability  payments  are  not  being  sought  in  this  hearing.  However,  respondent  made  some \npayments it termed as PPD which are to be credited against its indemnity obligations to claimant.  \n\nStanley-H305255 \n3 \n \nand paid directly to claimant’s attorney by separate check, and that any Commission’s Order direct the \nrespondent to make payment of attorney’s fees in this manner.” \n The respondents contend that “This claim was accepted and paid.  The claimant injured his \nleft knee at work.  He was treated and released with a 7% permanent partial disability rating which has \nbeen paid.  He has had an FCE showing that he is capable of medium levels of work.  His maximum \nmedical improvement date was February 27, 2024.  He is not entitled to additional benefits.” \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n22, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as fact, as are \nthe additional stipulations announced at the hearing as set forth above. \n 2.    Claimant met his burden of proof that he is entitled to temporary total disability benefits \nat a rate of $564.00 per week from August 8, 2023, to a date to be determined, with respondents being \nentitled to credit against that total for any indemnity payments made to claimant.   \n \n FACTUAL BACKGROUND \n At the conclusion of the hearing, I requested briefs from both parties, setting forth what they \nbelieved  the  evidence  proved  in  support  of  their  contentions.    I  very  much  appreciated  both \nsubmissions, which are blue backed as exhibits to this hearing.  \n \n\nStanley-H305255 \n \n4 \n \n \n \nHEARING TESTIMONY  \n \n Claimant was the only witness that testified at the hearing.  On August 8, 2023, he sustained a \nknee injury while acting as a territory service representative for respondent Novo.  That job required \nhim to physically place between 8000 to 14,000 pounds of material in various Lowe’s locations.  On \nthe date of his injury, it had been raining; while carrying seven to eight boards on his left shoulder, \nclaimant slipped  in  the  water  and  twisted  his  knee.   He was  seen  by  the Conservative Care \nOccupational  Health  Clinic  the  next  day,  eventually  being  referred  to  Dr. William  Brown,  who \nperformed surgery on claimant’s left knee on September 20, 2023.  Claimant said he continued to have \nproblems with the knee and had a second surgery on September 5, 2024, this time under the care of \nDr. Kirk Reynolds.   \n Following  his  first  surgery,  claimant  was  sent  for  a  functional  capacity  assessment  that  was \nconducted  on  February  19,  2024.    Following  that  evaluation,  he  began  receiving  permanent  partial \ndisability payments through May 20, 2024.  Claimant contended that his temporary disability should \nnever have been discontinued because he continued to have problems after the first surgery. \n Claimant had a recommendation for the second surgery to be performed by Dr. Reynolds but \nthere was a delay in getting the approval from respondent Travelers for the surgery. Once that was \nobtained, there was then a delay for the plate that was implanted into his knee to be manufactured \nand delivered.   \n Claimant said he was in an unloader brace post-surgery from September 28, 2023, until Dr. \nReynolds performed the second surgery on September 5, 2024.  He had chronic pain in the knee after \nthe first surgery and was limited as to what he could do when trying to carry, bend, or bear weight on \nthat leg.  \n\nStanley-H305255 \n \n5 \n \n \n Claimant testified that he was not able to work between February 19, 2024, and September 5, \n2024, at his job as there was no work offered to him during that period of time within his restrictions. \n On  cross-examination,  claimant explained that  his  current employment  status  was  until  he \ncould operate at full capacity, there was nothing for him to do with the company.  The restrictions he \nreceived  in  February  2024  said  he  could  do  medium  levels  of  work  but  could  not  push  a  fifteen \nhundred pound cart; there were no attempts made to accommodate claimant within those restrictions.  \nClaimant stated that to perform his job, he would ask the forklift driver at Lowe’s to bring the pallet \nof product which had previously been delivered to the store to a cart that claimant would then push \ninto the aisles and offload the product from the cart onto the shelf or display. \n Claimant  testified  that  when  he  saw  Dr.  Reynolds  on  May  15,  2024, the  same  physical \nrestrictions  were  continued,  which  included  the  weight  restrictions  on  the  cart  claimant  utilized  in \nperforming his job duties. Claimant testified that he had not been released with those same restrictions \nafter his September 2024 surgery because he was still undergoing care and there had not been “an end \ndate discussed” as to when claimant would be released from care. Claimant said he had not looked for \nany other jobs because he was still employed by respondent Novo while his worker’s compensation \nclaim was ongoing, and he believed that would be unethical.  Were he permanently prohibited from \noperating  a 1500-pound cart, claimant  believed  he would no  longer  be  able to  work  for  Novo  and \nwould then be forced to take other action. \n Claimant testified about what he believed was incorrect regarding how the indemnity benefits \nhe  received between  February  19, 2024, and  September  5,  2024, were  either underpayments or \nmischaracterized payments.  His contentions will be explained more fully in the adjudication section \nof this Opinion. I found claimant to be a credible witness and that his testimony was consistent with \nthe documentary evidence.  \n\nStanley-H305255 \n \n6 \n \n \n \nREVIEW OF THE EXHIBITS \n \n The exhibits in the case were prepared, at least in part, for issues that were not presented at \ntrial. As such, an exhaustive review of the entire set of documents is unnecessary to decide the issues \nthat were litigated.  \nDr.  Brown  performed  a  left  knee  arthroscopy  on  September  20,  2023.    The  surgical  note \nrecords the procedure was “arthroscopic microfracture medial femoral condyle left knee ½ cm \ndefect.”  Of particular interest was this section of the procedure detail:  \n \n“The medial  meniscus  was  probed  and  at  one  point  I  thought  there  was  a \npotential posterior horn attachment tear, but I think this was just loose bodies \nfloating in the posterior compartment. On probing and pulling on the medial \nmeniscus, I cannot reproduce a tear.” \n \n Following the surgery, claimant participated in a course of physical therapy and continued to \nsee Dr. Brown for regular follow-ups.  On January 4, 2024, Dr. Brown recommended claimant return \nto work for half-days for 4 weeks with the goal of releasing him to full activity without restrictions.  \nThis recommendation was not possible; on February 1, 2024, Dr. Brown recorded “I recommend at \nthis  point  we  get  an  FCE  because  I  do  not  know  how  else  to  manage  his  work  requirements  and \noption.”   The FCE was performed on February 19, 2024, during which claimant put forth a reliable \neffort. After  reviewing  the  FCE,  Dr.  Brown found claimant had  reached maximum  medical \nimprovement  and  assessed  a  permanent  impairment  rating  of 7% to claimant’s lower extremity.   \nClaimant was “released to return to work with light duty restrictions in the medium labor criteria.”  \nThat category did not allow claimant to push 1500 pounds, which was a requirement for claimant’s \nposition with Novo.  \nClaimant requested a change of physicians after he was discharged from Dr. Brown’s care \n\nStanley-H305255 \n \n7 \n \n \nand first saw Dr. Reynolds on May 15, 2024.  His assessments and recommendations were: \nASSESSMENT \nLeft knee pain and loss of function secondary to traumatic chondral \ndefect of the medial femoral condyle. Unfortunately, this has failed to respond \nto arthroscopic microfracture. He has acquired varus alignment of the knee \nwith  medial  compartment  overload. Fortunately,  no  evidence  of  meniscal \ninjury. \n \nRECOMMENDATIONS \n \nI had a lengthy discussion today with Seth. Given his varus alignment \nand medial compartment overload he is likely to continue having disability in \nthe knee secondary to pain and loss of function. Fortunately, he is responding \nfavorably to the medial unloader brace. I encouraged him to continue wearing \nthe medial unloader brace. From a surgical perspective I would recommend \na valgus producing high tibial osteotomy. In the same setting I would perform \nan arthroscopic  evaluation  of  the  articular  cartilage  of his  medial  femoral \ncondyle.  In  the  setting  of  a  defect  less  than  12  mm, I  would perform  an \nautograft OATS to reconstruct his chondral defect. In the setting of a defect \ngreater than 12 mm, l would perform a chondral biopsy with anticipation of \na staged matrix autologous chondrocyte implantation if necessary. \nRisks and benefits of surgery were discussed at length. Postoperative \nrecovery  and  rehabilitation  were  outlined.  Seth  would  like  to proceed  with \nsurgery. I will order a CT scan of the left lower extremity using the BodyCAD \nFine osteotomy protocol. Once we have this available for review then we will \nbegin  preoperative  planning  and  schedule  him  for surgery  at  a  mutually \nconvenient  time. In  the  interim  he  remains  on  modified  duty  at work  with \nrecurrent restrictions in place. He has not reached MMI.   \n \nThis surgery  was eventually approved  by  respondents\n2\n and the  operation  took  place  on \nSeptember  5,  2024.   That operative  report  was  much  more  detailed  than  the  one prepared  by  Dr. \nBrown after the September 20, 2023, procedure.  The procedures performed were: \n1. Opening wedge to the left medial proximal tibial osteotomy. \n2. Left  knee  diagnostic  arthroscopy  with  chondroplasty  the  medial  femoral \ncondyle,  removal  of  multiple  chondral  loose  bodies  and  full-thickness \nchondral biopsy for possible staged MACI. \n \n2\n Before approving the surgery recommended by Dr. Reynolds, respondent Travelers submitted this matter for a peer \nreview, which denied the necessity of the second procedure.  To its credit, Travelers authorized the treatment despite \nthat denial.  As the peer review went only to the reasonableness of the second surgery, that peer review will not be \nexamined further in this opinion.    \n\nStanley-H305255 \n \n8 \n \n \n3. Intraoperative interpretation of x-ray by surgeon; AP and lateral views of the \nleft knee.  \n \n               The diagnostic arthroscopy revealed: \n1. The articular cartilage of the patellofemoral part was normal. \n2. The  medial  compartment  showed  a  15mm  X  20mm  full-thickness  chondral \ndefect  along  the weight-bearing portion  of  the  medial  femoral  condyle  with \nfibrocartilage  and  a  small  central  area  secondary  to  previous  microfracture \nwhich had failed.  \n3. There was medial meniscus deficiency.  \n4.  The ACL and PCL were normal. \n5. The lateral compartment was normal. \n6. There  were  multiple  chondral  loose  bodies  within  the  medial  gutter,  lateral \ngutter and suprapatellar pouch. \n  \nADJUDICATION \n \n Because the parties agreed to the compensation rate and since respondents authorized medical \ncare after the entry of the prehearing order in this matter, claimant’s brief states “the sole issue then \nis  the  period  of 09/05/24  back  to  02/19/24  with  respect  to  the  payment  of  temporary  disability \nbenefits.”  In its brief, respondent agreed that the disability payments should be recalculated at the \nappropriate TTD and PPD rates, but denied claimant was entitled to TTD between February 19, 2024, \nand September 5, 2024, because he had been released to return to work with a permanent impairment \nrating on February 19, 2024.  While I understand respondent’s position for a portion of the time in \nquestion, I find claimant has proven he was entitled to TTD from February 19, 2024, until September \n5, 2024.  \n A claimant who suffers a scheduled injury is entitled to temporary total disability benefits until \nthey reach the end of their healing period or until they return to work, whichever occurs first. Wheeler \nConstruction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).  In its brief, respondents argued \nthat “claimant was released to return to work and rated before he ever saw Dr. Reynolds. Dr. Reynolds \n\nStanley-H305255 \n \n9 \n \n \ncould not take him off work retroactively.”  There is no question that Dr. Brown released claimant at \nmaximum medical improvement (MMI) on February 27, 2024, with a permanent impairment rating.  \nThere  is  also  no  question  that  when  Dr.  Reynolds  saw  claimant  on  May  20,  2024, for  his  initial \nexamination, he stated in no uncertain terms that claimant had not reached MMI.  I need not decide \nif  Dr.  Reynolds  could  retroactively excuse  claimant  from  working before he  saw  him,  because  the \nproof in the case satisfies me that claimant had not reached the end of his healing period when Dr. \nBrown released him.   \nThe Commission has the authority to accept or reject medical opinion and to determine its \nmedical soundness and probative force, LVL, Inc. v. Ragsdale, 2011 Ark. App. 144, 381 S.W.3d 869. In \nreviewing the  operative  reports  from  Dr.  Brown  and  Dr.  Reynolds,  it  is apparent  there  was  more \ndamage to claimant’s knee than Dr. Brown realized.  I therefore reject Dr. Brown’s finding of MMI \nas of February 27, 2024, accept Dr. Reynolds’ opinion that claimant had not reached the end of his \nhealing  period  on  May  20,  2024,  and  thus find  that  claimant  has  not yet  reached  MMI  for  his \ncompensable injury of August 8, 2023. \nBased  on  the stipulation as to the claimant’s compensation rate and my previous  finding \nregarding MMI, claimant should have been paid $564.00 weekly from the date of his injury until he is \nreleased from care by Dr. Reynolds or returns to work, whichever occurs first. Respondent is entitled \nto credit for all payments made to claimant, regardless of whether the payments were designated as \nTTD  or PPD. Respondent will calculate  the  sum owed  to  claimant  after  taking  proper  credit  for \npayments made during the pendency of this claim.    \n \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \n\nStanley-H305255 \n \n10 \n \n \nherein this Opinion.  All accrued sums shall be paid in lump sum without discount, and this award \nshall earn interest at the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one half by the carrier and one-\nhalf  by  the  claimant.  All  issues  not  addressed  herein  are  expressly  reserved  under  the  Act.  If  not \nalready paid, Respondent is responsible for paying the court reporter her charges for preparation of \nthe transcript.  \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":18953,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305255 SETH A. STANLEY, EMPLOYEE CLAIMANT NOVO BUILDING PRODUCTS LLC, EMPLOYER RESPONDENT CHARTER OAK FIRE INS. CO., CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 6, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope County, ...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["knee","shoulder","back"],"fetchedAt":"2026-05-19T22:43:20.839Z"},{"id":"full_commission-H207576-2025-02-05","awccNumber":"H207576","decisionDate":"2025-02-05","decisionYear":2025,"opinionType":"full_commission","claimantName":"Willie Hinton","employerName":"B H I Energy, Inc","title":"HINTON VS. B H I ENERGY, INC. AWCC# H207576 February 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Hinton_Willie_H207576_20250205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Hinton_Willie_H207576_20250205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H207576 \n \nWILLIE HINTON, \nEMPLOYEE \n \nCLAIMANT \nB H I ENERGY, INC.,  \nEMPLOYER \n \nRESPONDENT \nSEDGWICK CLAIMS MANAGEMENT \nSERVICES, INC., INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED FEBRUARY 5, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant is Pro Se. \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nAugust 22, 2024.  The administrative law judge found that the claimant \nproved he was entitled to temporary total disability benefits beginning \nDecember 20, 2023.  After reviewing the entire record de novo, the Full \nCommission finds that the claimant did not prove he was entitled to \nadditional temporary total disability benefits.     \nI. HISTORY \n The testimony of Willie Hinton, now age 58, indicated that he had \nformerly been employed with the respondents, BHI Energy, Inc.  Mr. Hinton \n\nHINTON - H207576  2\n  \n \n \ntestified that he disassembled nuclear reactors for the respondent-\nemployer.  The parties stipulated that the employee-employer-carrier \nrelationship existed on or about October 10, 2022.  The claimant testified \nthat he was working for the respondent-employer at Arkansas Nuclear One \nPower Station.  The claimant contended that he sustained a work-related \ninjury on October 11, 2022.  The claimant testified, “We were moving – \nlifting and moving various equipment, camera equipment, hoses, things like \nthat.  I felt a pop in my hand.”  According to the record, the claimant treated \nat Central Arkansas Veterans Health Care System on October 11, 2022.  \nThe claimant was diagnosed with “Right wrist pain” and “Soft tissue swelling \nright wrist.”     \nThe claimant treated at I & O Medical Centers, Newport News, \nVirginia, on October 19, 2022.  The diagnosis was “R hand strain, R wrist \nflexor sprain.”  The WORK STATUS at that time was “Return to \nModified/Restricted Duty on 10/19/22 through 10/21/22.”  The work \nrestrictions included no lifting or pulling more than five pounds, no overhead \nwork with right hand, no climbing, no operation of hazardous machinery or \npower tools, and no tight gripping with right hand. \nThe claimant followed up at I & O Medical Centers on October 21, \n2022.  The WORK STATUS on that date was “Return to Modified/Restricted \n\nHINTON - H207576  3\n  \n \n \nDuty on 10/21/22 through 11/1/2020.”  The claimant was referred to a \nphysical therapist.     \nDr. John Wing reported on October 26, 2022: \nMr. Willie Hinton is currently a patient of the Hampton \nVeterans Administration Medical Center.  Mr. Hinton injured \nhis right wrist at work on October 11, 2022.  He initially \npresented to the Little Rock Arkansas Veterans Administration \nMedical Center.  He was diagnosed with a wrist strain which \ndid not improve with medication.  He then came to the \nHampton Veterans Administration emergency room and was \ntreated but still no improvement to his right wrist.  He currently \nis seeing me his primary care doctor.  We are awaiting an MRI \nand are initiating other therapy for his wrist.  For the \nforeseeable future he is not able to work.  It is unclear when \nhe will be released to return to work.  Any help that you could \ngive this veteran would be greatly appreciated.   \n \n An MRI study of the claimant’s right wrist was done on November 13, \n2022 with the following findings: \nBones:  There is patchy marrow edema and small cystic \nsignal throughout the carpal bones.  There is no fracture. \nJoints:  There is moderate synovitis throughout the wrist.  \nThere is reactive subchondral edema at the lunocapitate and \nlunate - hamate articulations.  There is chondral thinning with \nsmall osteophytes at the thumb carpometacarpal joint.   \nLigaments:  There is degeneration and possible tearing of the \nvolar band of the scapholunate ligament.  The lunotriquetral \nligament is intact.  The dorsal extrinsic wrist ligaments are \nintact.   \nTFCC:  The central disc near the radial attachment is \nattenuated with likely a small full-thickness tear.   \nTendons:  There is mild diffuse tenosynovitis of the flexor \ntendons within the carpal tunnel and palm of the hand.  There \nis mild tendinosis and tenosynovitis of the fourth extensor \ncompartment, which is at the level of the skin marker.... \nIMPRESSION:  1.  MRI of the right wrist demonstrates \nmoderate diffuse synovitis. \n\nHINTON - H207576  4\n  \n \n \n2.  Diffuse mild tenosynovitis of the flexor tendons of the \ncarpal tunnel, and mild tenosynovitis of the fourth extensor \ncompartment. \n3.  Degeneration and possible tear of the volar band of the \nscapholunate ligament.   \n4.  Degeneration and likely full-thickness perforation of the \ncentral disc of the TFCC.   \n \n Dr. Wing reported on January 12, 2023: \nMr. Willie Hinton is currently a patient of the Hampton veteran \nadministration Medical Center.  He is being amongst other \nthings followed for a wrist injury which occurred in October \n2022 apparently on the job.  The patient was discovered to \nhave marked synovitis of his right wrist along with a possible \ntear in one of the ligaments.  Patient was seen by specialist \nand currently is undergoing a rest cure.  Patient continues to \nbe disabled from the wrist.  Any help that you could give this \nveteran as he recovers from his work-related injury would be \ngreatly appreciated.   \n \n The claimant testified that Dr. Wing released him to return to work on \nFebruary 22, 2023.  The claimant testified that he returned to work for the \nrespondent-employer on February 26, 2023 and that his last day of work \nwas May 14, 2023.    \n A pre-hearing order was filed on June 1, 2023.  According to the pre-\nhearing order, the claimant contended, “Worked night shift 10/10/22 6pm – \n6am.  Was off loading/staging camera/communication equipment was near \nend of shift.  Felt a pull-on right hand.  Completed shift.  Told coworker \n(James Patrick) what happened, left work.  Woke 1 ½ hours later with \nswollen arm/wrist/fingers.  Called Bob Dow and reported accident at that \ntime.”   \n\nHINTON - H207576  5\n  \n \n \n The respondents contended, “Claimant does not have a \ncompensable injury.  All tests revealed no new objective findings.  Strains \nare not compensable.”   \n The parties agreed to litigate the following issues: \n1. Whether claimant sustained a compensable injury on or \nabout October 11, 2022.   \n2. Compensation rate. \n3. Whether claimant is entitled to temporary total disability \nbenefits. \n4. Whether claimant is entitled to medical benefits.  All other \nissues are reserved by the parties.   \n \nDr. Wing reported on June 28, 2023: \nMr. Willie Hinton is currently a patient of the Hampton \nVeterans Administration Medical Center.  Mr. Hinton has been \nfollowed for right wrist injury since October 11, 2022.  He was \ngiven a rest cure along with a cortisone shot.  MRI indicated \ndiffuse synovitis along with a tear in the volar band of the \nscapholunate ligament.  Mr. Hinton was released to return to \nwork on February 22, 2023.  Patient continues to have right \nwrist pain and stiffness, treatment is pending orthopedic \nreevaluation.  Any consideration that you could give this \nveteran would be greatly appreciated.   \n \n A hearing was held on July 11, 2023.  The claimant testified that he \nwas not working, and that his right wrist was “not 100%.”  The claimant \ntestified with regard to his right hand, \"It's not the same.  It’s not strong.  It’s \npainful.  I don’t have the dexterity that I had before.”              \nAn administrative law judge filed an opinion on September 29, 2023.  \nThe administrative law judge determined, among other things, that the \n\nHINTON - H207576  6\n  \n \n \nclaimant proved “he suffered a compensable injury on October 11, 2022.”  \nThe administrative law judge found, in pertinent part: \n3.  Claimant has met his burden of proof by a preponderance \nof the evidence that he is entitled to temporary total disability \nbenefits beginning October 11, 2022, and continuing through \nFebruary 22, 2023.   \n4.  Claimant has met his burden of proof by a preponderance \nof the evidence that he is entitled to reasonable and \nnecessary medical benefits for his right upper extremity injury.     \n \n The administrative law judge concluded, “Dr. Wing’s records support \nthe contention that claimant had not reached the end of his healing period \nuntil February 22, 2023, and I am satisfied that it began on October 11, \n2022.” \n The parties have stipulated that “all prior opinions are res judicata.” \n The claimant testified that his compensable injury subsequently \n“flared back up” and that he needed additional medical attention.  The \nclaimant testified that the respondent-carrier denied additional medical \ntreatment.     \n Dr. Wing reported on December 20, 2023: \nMr. Willie Hinton is currently a patient of the Hampton \nVeterans Administration Medical Center.  Mr. Hinton \ncontinues to be unable to work due to a right wrist injury and \nis advised not to work until further treatment given.  Any \nconsideration that you could give this veteran would be greatly \nappreciated.   \n \n The claimant treated at RMC Hospital on January 2, 2024:  “Patient \nis coming in with right arm pain history the same is currently on worker’s \n\nHINTON - H207576  7\n  \n \n \ncomp for a torn ligament in the right arm.  Exacerbated with movement no \nalleviation this is a chronic injury.  Is wanting something for pain.”  A \n“Medical Decision Making” note indicated, “Right arm pain pain control \nfollow-up with PCP and your workmen’s comp physician no new injury or \nfindings.”   \n An x-ray of the claimant’s right hand was taken on February 5, 2024 \nwith the following report: \nNo acute osseous abnormality.  Mild to moderate \nosteoarthritic change of the 1\nst\n CMC joint.  No significant soft \ntissue findings.   \nImpression:  No acute findings.   \n \n An x-ray of the claimant’s right wrist was taken on February 5, 2024 \nwith the following report: \nThe distal radius and ulna appear intact without fracture.  The \ncarpal bones appear intact without fracture or dislocation.  \nThere is mild arthritis of the STT joints and 1\nst\n CMC joint.  \nThere is moderate to advanced arthritis 1\nst\n MCP joint.  The \nsoft tissues are unremarkable.   \nImpression:  Moderate to advanced arthritis 1\nst\n MCP joint.  \nMild arthritis of the STT joints and 1\nst\n CMC joint.  No acute \nfracture or dislocation demonstrated.   \n \n Dr. Andrea Lese noted on February 6, 2024: \n  CHIEF COMPLAINT:  Right hand and wrist pain.   \n  DATE OF INJURY/ONSET:   \n  10/11/2022 \n  S/p lifting heavy equipment and boxes \nHISTORY OF PRESENT ILLNESS:  Mr. Hinton is a 57 year \nold right hand dominant male who presents with right hand \npain and wrist pain.  He was first seen there on 12/13/2022 for \na work injury in which he was lifting boxes.  He was lifting \n\nHINTON - H207576  8\n  \n \n \nheavy boxes and equipment.  He was in Arkansas at the time \nworking for Westinghouse.  He was seen at the time at VA \nHospital.  He went there because he was having pain.  He \nwas seen and xrays were taken, which were reportedly \nnegative.  He then came here and was seen in Hampton, VA, \nat the VA Hospital.  He was then referred to HROSM.  He was \nseen there twice and got injections from them for the \nsynovitis.  He had an MRI in December 2022.  This showed \ntenosynovitis.  All the while, he was trying to get the Worker’s \nCompensation and went to court to get worker’s \ncompensation.  He was granted that judgment.  He could not \nbe seen at HROSM because they do not take out of state WC.  \nHe has been seen at the Rheumatologist sometime between \nDecember 2022 and September 2023 and blood work was \nnegative for systemic inflammatory conditions.   \nToday he states he continues to have pain and swelling.  He \nstates it is mostly over the dorsal wrist and forearm.  It is \nintermittent; it gets worse when he attempts to do activities \nlike lifting objects.  He says this aggravates it more.  \nHydrocodone helps the pain.  He also tried Naproxen which \ndidn’t seem to help the swelling.  He says the injections may \nor may not have helped because he had to go back to work.  \nOral steroids did not resolve.  He has had to work and climb \nladders and lift.... \nRight wrist and forearm:  there is dorsal swelling.  There is \ntenderness over the swelling dorsal wrist and forearm with \ntenderness.... \nIMAGING \n3 views of the right hand/wrist were taken today in clinic and \nanalyzed by me[.] \nMy interpretation is no acute fracture or dislocation.  The \npatient is ulnar positive variance.   \nMRI right wrist performed by HROSM in 12/2022:  I have no \naccess to these images.  The official read indicates \ntenosynovitis of both the extensor (4\nth\n dorsal compartment) \nand flexor (in the carpal tunnel) tendons.  There is a volar tear \nof the SL ligament.  There is a central tear of the TFCC.   \nASSESSMENT/PLAN:  right wrist and forearm tenosynovitis[.]   \n- today I explained to the patient that I do not have a surgical \nsolution to this issue.  The SL and TFCC issues are not \ncausing the pain over the dorsal forearm.  I recommend he \n\nHINTON - H207576  9\n  \n \n \nsee Rheumatology for another opinion.  He may have a \nseronegative systemic inflammatory condition.   \n-   he would also like to try therapy.  I will send him to Steve \nHermann in Hampton.   \n \n The claimant received an Upper Extremity Outpatient Evaluation at \nRiverside Outpatient Occupational Therapy on February 9, 2024.  The \ndiagnosis was “1.  Right hand pain.  2.  Stiffness of hand joint, right.  3.  \nSynovitis and tenosynovitis.”  An Occupational Therapist noted, “Edema:  \nnoted to have swelling in the R hand.”  The therapist planned, “Mr. Hinton is \nto be seen 2 times per week for 12 weeks.  Treatment to consist of \nTherapeutic Exercise, Manual therapy, NMR, Therapeutic activities, \nElectrical Stimulation, Ultrasound, Orthotic check, Orthotic fitting and \ntraining, community/work integration, self-care and Physical \nTests/Measures.”   \n Dr. Lese reported on May 23, 2024: \nMr. Hinton returns for a follow-up.  We last saw him on \n2/6/2024 when we diagnosed him with right wrist and forearm \ntenosynovitis.  I explained to him that I did not have a surgical \nsolution for this issue and recommended therapy.  I \nrecommended he see Steve Hermann in Hampton, which he \nhas been doing.  Today he states he has been seeing Steve \nHermann, but he still has pain, so Steve recommended he \ncome back to us.  He says he felt some soothing of the pain \nwhile he was there, but then the pain would come back.  He \nhas not been able to work and is trying to get the worker’s \ncompensation.  He still has pain over the dorsal wrist radiating \nup the forearm.... \nRight wrist and forearm:  skin intact.  Minimal swelling.  He \nhas pain and tenderness over the dorsal wrist.  Pain with \nresisted wrist extension.  Mild pain with thumb extension.   \n\nHINTON - H207576  10\n  \n \n \n \n Dr. Lese assessed “Right wrist and forearm tenosynovitis – at this \ntime, I explained to the patient that I do not have a surgical answer to his \nissue.  We could refer him to a PM&R physician, if that is available to him.  \n– follow up with me as needed.”   \nA pre-hearing order was filed on June 6, 2024.  According to the pre-\nhearing order, the claimant contended, “Worked night shift 10/10/22 6pm-\n6am.  Was off loading/staging camera/communication equipment was near \nend of shift.  Felt a pull-on right hand.  Completed shift.  Told coworker \n(James Patrick) what happened, left work.  Woke 1 ½ hours later with \nswollen arm/wrist/fingers.  Called Bob Dow and reported accident at that \ntime.”   \n The respondents contended, “The healing period ended February \n22, 2023.  That issue is res judicata as it was decided in the previous \nhearing.  There is no proof of a new condition or a new reason for additional \ntemporary total disability.  Additional medical treatment is not reasonable or \nnecessary and has not been identified by any physician.”   \n The parties agreed to litigate the following issues: \n1. Whether claimant is entitled to temporary total disability \nbenefits from December 20, 2023 to a date to be \ndetermined. \n2. Whether claimant is entitled to additional medical benefits. \n3. Whether claimant is entitled to reimbursement of past \nmedical benefits. \n\nHINTON - H207576  11\n  \n \n \n4. Whether claimant is entitled to payment of unpaid medical \nfrom last Order.  All other issues are reserved by the \nparties.     \n \n    Dr. Stephanie Giammittorio examined the claimant on June 11, \n2024: \nWillie A. Hinton is a 57 y.o. male who presents with right \nforearm pain.  The pain started [October] 2022 inciting event:  \ninjured while lifting boxes at work.  He was lifting it off the \nground with palms facing towards him.  He felt a pop.  He was \nin Arkansas at the time.  He then had an [increase] in the pain \nand had swelling after a job in December 2023.  He was seen \nthen at the VA and HROSM.  He was granted workers comp \nthen they couldn’t take this so saw Dr. Lese.  She did not \nrecommend any surgical intervention but recommended OT \nand eval by rheum.  Pain is volar, dorsal wrist.  Current \nsymptoms include:  numbness/tingling in all fingertips.... \nThe patient has normal right wrist ROM.... \nThe patient has normal right wrist strength.... \nErythema:  absent.... \n \n Dr. Giammittorio assessed “Primary osteoarthritis of right wrist – \nPrimary,” “Synovitis and tenosynovitis,” and “Neuropathy (CMS/HCC).”  Dr. \nGiammittorio planned “Rest, ice, compression, elevation (RICE) \ntherapy....Patient was prescribed a brace for the diagnosis above.”   \n An x-ray of the claimant’s right forearm was taken on June 11, 2024 \nwith the following report: \nThere is no new fracture, dislocation, or subluxation.  There is \nno bone lesion or periosteal reaction.  Soft tissues \nunremarkable.   \nImpression:  Normal study.   \n \n\nHINTON - H207576  12\n  \n \n \n After a hearing, an administrative law judge filed an opinion on \nAugust 22, 2024.  The administrative law judge found:     \n3.  Claimant has met his burden of proof by a preponderance \nof the evidence that he is entitled to be reimbursed for medical \nexpenses incurred since the date of the previous opinion that \nare related to his compensable right arm injury, both those \nthat he paid out of pocket and those that are still outstanding \nupon presentation to respondent of an itemized statement. \n \n The respondents do not appeal the administrative law judge’s finding \nthat the claimant was entitled to reimbursement for medical expenses.  The \nadministrative law judge found that the claimant proved he was entitled to \ntemporary total disability benefits beginning December 20, 2023.  The \nrespondents appeal to the Full Commission the administrative law judge’s \naward of temporary total disability benefits beginning December 20, 2023.   \nII.  ADJUDICATION \n An employee who sustains a compensable scheduled injury shall \nreceive temporary total disability benefits during his healing period or until \nhe returns to work, whichever occurs first.  Ark. Code Ann. §11-9-\n521(a)(Repl. 2012); Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, \n41 S.W.3d 822 (2001).  The healing period is that period for healing of the \ninjury which continues until the employee is as far restored as the \npermanent character of his injury will permit.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  If the underlying condition causing \nthe disability has become more stable and nothing further in the way of \n\nHINTON - H207576  13\n  \n \n \ntreatment will improve that condition, the healing period has ended.  Id.  \nWhether an employee’s healing period has ended is a question of fact for \nthe Commission.  Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 \nS.W.2d 25 (1995).   \n An administrative law judge found in the present matter, “2.  \nClaimant has met his burden of proof by a preponderance of evidence that \nhe is entitled to temporary total disability benefits beginning December 20, \n2023.”  The Full Commission does not affirm this finding.   \n The claimant testified that he sustained an accidental injury to his \nright upper extremity on or about October 11, 2022.  The claimant began \ntreating at I & O Medical Centers on October 19, 2022.  The diagnosis at \nthat time was “R hand strain, R wrist flexor sprain.”  An MRI study on \nNovember 13, 2022 showed, among other things, a “possible tear of the \nvolar band of the scapholunate ligament.”  An administrative law judge filed \nan opinion on September 29, 2023.  The administrative law judge \ndetermined that the claimant “suffered a compensable injury on October 11, \n2022.”  The administrative law judge awarded reasonably necessary \nmedical treatment.   \nThe administrative law judge also found that the claimant “has met \nhis burden of proof by a preponderance of the evidence that he is entitled to \ntemporary total disability benefits beginning October 11, 2022, and \n\nHINTON - H207576  14\n  \n \n \ncontinuing through February 22, 2023.”  The administrative law judge \nconcluded in his opinion filed September 29, 2023, “Dr. Wing’s records \nsupport the contention that claimant had not reached the end of his healing \nperiod until February 22, 2023, and I am satisfied that it began on October \n11, 2022.”  The parties have stipulated that “all prior opinions are res \njudicata.”  The purpose of the res judicata doctrine is to put an end to \nlitigation by preventing a party who had one fair trial on a matter from \nrelitigating the matter a second time.  Cox v. Keahey, 84 Ark. App. 121, 133 \nS.W.3d 430 (2003).  Res judicata applies where there has been a final \nadjudication on the merits of the issue by a court of competent jurisdiction \non all matters litigated and those matters necessarily within the issue which \nmight have been litigated.  Beliew v. Stuttgart Rice Mill, 64 Ark. App. 334, \n987 S.W.2d 281 (1998).  Res judicata applies to decisions of the \nCommission.  Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 \n(1996).   \nThe evidence of record and the administrative law judge’s opinion \nfiled September 29, 2023 therefore demonstrate that the claimant reached \nthe end of the healing period for his compensable scheduled injury no later \nthan February 22, 2023.  The evidence of record does not demonstrate that \nthe claimant re-entered a healing period at any time after February 22, \n2023.   \n\nHINTON - H207576  15\n  \n \n \nThe claimant sustained a compensable scheduled injury on or about \nOctober 11, 2022.  The claimant was subsequently diagnosed with a “R \nhand strain, R wrist flexor sprain.”  The Full Commission reiterates, \naccording to the record, that the claimant reached the end of the healing \nperiod for his compensable right wrist flexor sprain no later than February \n22, 2023.  A claimant is not entitled to temporary total disability benefits \nafter the end of his healing period.  See Ark. Code Ann. §11-9-521(a)(Repl. \n2012); Milligan v. West Tree Serv., 57 Ark. App. 14, 946 S.W.2d 697 \n(1997).   \nDr. Wing reported on December 20, 2023 that the claimant was \n“unable to work due to a right wrist injury and is advised not to work until \nfurther treatment given.”  It is within the Commission’s province to weigh all \nof the medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present \nmatter, the Full Commission finds that Dr. Wing's December 20, 2023 \ncorrespondence is not probative evidence demonstrating that the claimant \nre-entered a healing period for his compensable scheduled injury.  A \nmedical provider reported on January 2, 2024 that the claimant’s injury was \n“chronic” and that there was “no new injury or findings.”  An x-ray on \nFebruary 5, 2024 showed “mild arthritis” in the claimant’s right wrist.  The \nfinding of “mild arthritis” in the right wrist is not evidence demonstrating that \n\nHINTON - H207576  16\n  \n \n \nthe claimant re-entered a healing period.  Dr. Lese reported on February 6, \n2024 that diagnostic imaging of the claimant’s right hand and wrist showed \n“no acute fracture or dislocation.”  Dr. Lese opined, “I do not have a surgical \nsolution to this issue.”  \nDr. Lese reported “Minimal swelling” in the claimant’s right wrist on \nMay 23, 2024.  Dr. Giammittorio examined the claimant on June 11, 2024 \nand reported “normal right wrist” range of motion and “normal wrist \nstrength.”  The impression from an x-ray of the claimant’s right forearm on \nJune 11, 2024 was “Normal study.”  The Full Commission recognizes that \nan employee who has sustained a compensable injury is not required to \noffer objective medical evidence in order to prove that he is entitled to \nadditional benefits.  Ark. Health Ctr. v. Burnett, 2018 Ark. App. 427, 558 \nS.W.3d 408.  In the present matter, however, the evidence of record \ndemonstrates that the claimant did not re-enter a healing period at any time \nafter February 22, 2023.  The persistence of pain does not prevent a finding \nthat the healing period has ended, provided that the underlying condition \nhas stabilized.  Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d \n582 (1982).  We find in the present matter that the claimant’s underlying \ncondition stabilized no later than February 22, 2023.   \nBased on our de novo review of the entire record currently before us, \nthe Full Commission finds that the claimant did not prove he was entitled to \n\nHINTON - H207576  17\n  \n \n \ntemporary total disability benefits at any time after February 22, 2023.  \nBecause the claimant did not prove he was entitled to additional temporary \ntotal disability benefits, we need not adjudicate whether the claim is barred \nby res judicata.  The Full Commission reiterates that the respondents do not \nappeal the administrative law judge’s finding that the claimant proved he \nwas entitled to reimbursement for reasonably necessary medical expenses.  \nOur finding that the claimant did not re-enter a healing period at any time \nafter February 22, 2023 does not preclude the claimant from receiving \nreasonably necessary medical treatment in accordance with Ark. Code Ann. \n§11-9-508(a)(Repl. 2012).  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. \nApp. 230, 184 S.W.3d 31 (2004).  \nIT IS SO ORDERED.      \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":26734,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H207576 WILLIE HINTON, EMPLOYEE CLAIMANT B H I ENERGY, INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 5, 2025","outcome":"granted","outcomeKeywords":["granted:4","denied:2"],"injuryKeywords":["wrist","strain","sprain","fracture","carpal tunnel","back"],"fetchedAt":"2026-05-19T22:29:44.562Z"},{"id":"full_commission-H303124-2025-02-05","awccNumber":"H303124","decisionDate":"2025-02-05","decisionYear":2025,"opinionType":"full_commission","claimantName":"David Otwell","employerName":"Jerry Lynn Roberson","title":"OTWELL VS. JERRY LYNN ROBERSON AWCC# H303124 February 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Otwell_David_H303124_20250205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Otwell_David_H303124_20250205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H303124 \n \nDAVID OTWELL, \nEMPLOYEE \n \nCLAIMANT \nJERRY LYNN ROBERSON,  \nEMPLOYER \n \nRESPONDENT \nEMPLOYERS PREFERRED INSURANCE CO., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED FEBRUARY 5, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE JAMES A. ARNOLD, II, \nAttorney at Law, Fort Smith, Arkansas. \n \n ORDER \n The claimant has moved for an “EXTENSION TO FILE BRIEF”  The \nFull Commission grants the motion.   \n An administrative law judge filed an opinion on November 1, 2024.  \nThe administrative law judge found, “2.  That the claimant has failed to \nsatisfy the required burden of proof to show that an employer/employee \ncarrier relationship existed on June 25, 2025, the date of the injury.”  The \nclaimant filed a timely notice of appeal, and the Clerk of the Commission \nestablished an initial briefing schedule.  The Clerk of the Commission \ninformed the parties, “Claimant’s brief will be due December 3, 2024.”  The \nclaimant then filed a timely request for a 30-day extension to file his brief, \n\nOTWELL - H303124  2\n  \n \n \nand the respondents did not object.  A Legal Support Specialist revised the \nbriefing schedule and informed the parties, “Claimant’s brief will now be due \n1/2/2025.”   \n On December 20, 2024, counsel filed a MOTION FOR EXTENSION \nTO FILE BRIEF” and stated, “That as a result of his surgery on December \n17, 2024 and due to the length of his recovery from said surgery, that is \nnecessary for him to request this extension to file Claimant’s Brief.”  The \nrespondents state that they do not object to the requested extension. \n The Full Commission therefore grants the claimant’s motion filed \nDecember 20, 2024, and we direct the Clerk of the Commission to establish \na final briefing schedule. \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2269,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303124 DAVID OTWELL, EMPLOYEE CLAIMANT JERRY LYNN ROBERSON, EMPLOYER RESPONDENT EMPLOYERS PREFERRED INSURANCE CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 5, 2025","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.566Z"},{"id":"alj-H401589-2025-02-05","awccNumber":"H401589","decisionDate":"2025-02-05","decisionYear":2025,"opinionType":"alj","claimantName":"Becky Keeter","employerName":"Clay Maxey Chevroltet","title":"KEETER VS. CLAY MAXEY CHEVROLTET AWCC# H401589 February 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KEETER_BECKY_H401589_20250205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KEETER_BECKY_H401589_20250205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H401589 \nBECKY L. KEETER, EMPLOYEE     CLAIMANT \n \nCLAY MAXEY CHEVROLTET, CADILLAC \nEMPLOYER         RESPONDENT  \n \nCENTRAL ARKANSAS AUTO DEALERS, CARRIER/   \nRISK MANAGEMENT RESOURCES, TPA    RESPONDENT \n \nOPINION FILED FEBRUARY 5, 2025 \nHearing before Administrative Law Judge, James D. Kennedy, on the 18\nth\n day of \nDecember 2024, in Mountain Home, Arkansas. \nClaimant is represented by Daniel Wren, Attorney at Law, Little Rock, Arkansas. \nRespondents are represented by Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing  was  conducted  on  the 18\nth\n day  of December 2024,  to  determine  the \nissue of temporary total  disability from January  19\nth\n, 2024, the  date when  the  claimant \nwas  terminated from  her  employment to  a  date  to  be  determined, which  will  be on  or \naround the currently approved date for the surgery and recovery thereafter, plus attorney \nfees. Prior  to  the  hearing, but  after  the  prehearing  telephone  conference,  the  issue  of \nadditional medical was resolved, and the requested surgery was in the process of being \nscheduled at the time of the hearing. A copy of the Pre-hearing Order dated July 22, 2024, \nwas marked “Commission Exhibit 1” and made part of the record without objection.  The \nOrder provided the parties stipulated as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n2.  An employer/employee relationship existed at all pertinent times. \n3.  Claimant suffered a compensable injury to her back.  \n\nKEETER – H401589 \n4. The claimant earned an  average  weekly  wage  of  $1322.91,  sufficient  for  a \nTTD/PPD rate of $835.00/$626.00 respectively. \n5. The claimant’s and respondent’s contentions were set out  in their  respective \nresponses  to  the  Pre-hearing  questionnaire and made  a  part  of  the  record \nalong with the Pre-hearing Order, without objection.   \nPrior to the hearing, but after the Prehearing Order, the claimant raised the issue \nof  collateral  estoppel  in  regard  to  the remaining issue  of TTD  and the  defense  of \ntermination of employment for cause.  After a phone conference prior to the hearing, the \nclaimant was allowed to make a record to raise the issue of collateral estoppel at the time \nof  the  hearing.  The  claimant  was aware  at  the time of the  phone conference, that  the \ndefense of termination of employment for cause was not collaterally estopped.  \n In  regard  to  the  issue  of  termination  of  employment,  the  respondents and the \nclaimant agreed  that  the  claimant suffered  a  compensable  work-related  injury  on \nSeptember  1,  2023,  and  was later terminated from  employment on  January 19,  2024, \nwith the respondents contending that the employment termination was due to cause.  Had \nshe  not  been terminated; the  respondents contend  that  the  claimant would  have \ncontinued to be provided light duty.  As such, they contend that she would not be entitled \nto temporary total disability benefits during the time frame and if temporary total disability \nis awarded, the respondents are entitled to an offset for the unemployment benefits she \nreceived. \nThe  claimant  objected to  the  issue  of  termination for  cause being raised by  the \nrespondents ten  days prior  to  the  hearing. They  argued  that  the hearing had  been \ncontinued once for the specific purpose of the claimant returning and being reevaluated \nby Dr. Bruffett. The claimant contended at the time of the hearing that raising the issue of \ntermination for cause approximately ten days prior to the actual hearing date left her the \n\nKEETER – H401589 \nchoice “between the devil and her brother.” The  claimant  admitted a  continuance  was \noffered, but that it was not fair to allow the respondents to raise the issue so close to the \nactual hearing date and then leave the claimant the option of going ahead with the hearing \nor in the alternative suffering through another continuance. The claimant contended the \nissue raised by the respondents should be prevented by collateral estoppel. \nIn regard to the assertions concerning timeliness and the issue of termination for \ncause, the respondents responded that at the time of the pre-hearing filing, discovery was \nstill on going. The focus of the main issue prior to today was whether or not respondents \nwould be authorizing surgery with Dr. Bruffett. The continuance was granted because Dr. \nBruffett, whom claimant now wants to have the surgery with, asked to see her again and \nthis was out of the respondent’s control. Dr. Bruffett wanted her back before responding \nto some questions asked by the respondents. Once Dr. Bruffett again saw the claimant, \nit   was confirmed “that  we  would  be  paying  for  the  surgery.”  The  respondents \nacknowledged  the  offer  of  a  continuance in  regard  to the hearing and  argued  that \ncollateral estoppel would not apply, due to the fact that the unemployment hearing took \nplace  before  the  Department  of  Workforce  Services  which was  a  different  entity, a \ndifferent jurisdiction, a different  finder  of  fact, with different issues. The Respondent’s \nrequested that the court move forward.   \nAt this point, the Commission confirmed that there had been a phone conference \nin  regard  to  the  issue  of  collateral  estoppel and it  was  determined  at the time  that the \nMotion by the claimant to prevent the raising of termination for cause by the respondents \nwas not prevented by collateral estoppel.    \n\nKEETER – H401589 \n   The  witnesses  consisted  of  the  claimant,  Ms.  Kirkland  Thompson  and  the \ntestimony of Ms. Cindi Lindenmeyer for the respondents. Claimant’s and respondent’s \nexhibits were admitted into the record without objection. From a review of the record as \na  whole, to  include medical  reports  and other  matters  properly  before  the Commission \nand having had an opportunity to observe the testimony and demeanor of the witnesses, \nthe  following  findings  of  fact  and  conclusions  of  law  are  made  in  accordance  with \nArkansas Code Annotated 11-9-704. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. That the Arkansas Workers’ Compensation Commission has jurisdiction over \n this claim. \n2.  An employer/employee relationship existed at all pertinent times. \n3.  Claimant suffered a compensable injury to her back.  \n4.  The  claimant earned an  average  weekly  wage  of  $1322.91,  sufficient  for  a   \nTTD/PPD rate of $835.00/$626.00 respectively. \n5.  That the issue of “termination for cause” was not barred by collateral estoppel. \n6.  That the claimant has failed to satisfy the required burden of proof to prove by \na  preponderance  of  the  evidence that  she  is  entitled  to temporary  total \ndisability.     \n7.  That all remaining issues are moot. \n8.    If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \nThe  Prehearing  Order,  along  with  the  prehearing  questionnaires  of  the  parties \nwere admitted  into  the  record  without  objection.  Additionally,  the  claimant’s  and \nrespondent’s exhibits were admitted into the record without objection. The first witness to \ntestify  was the  claimant Becky  Keeter, who testified that she  had  worked  as  a  service \nadvisor for Clay Maxey Chevrolet and the job consisted of meeting people in the lobby of \n\nKEETER – H401589 \nthe dealership who came in with an issue regarding their automobile, and then checking \ntheir vehicle in.  She would go out and hook up the scan tool to the car with the connection \nunder the dash.  She had worked for the Respondent for almost three and a half years.  \nShe was injured in September of 2023, and prior to that date, had never been written up \nfor  any  disciplinary  reason.  She  continued  working after  the  accident. After  her  injury, \nsome things in regard to her work were modified, but she was still required to bend over \nand connect the scanner under the dash. In regard to coupons for customers, she testified \nthe Respondent distributed them for discounted services and she thought the coupons \ncame from General Motors. (Tr. 13 – 15) \n In regard to the coupons, there were different coupons, some for an oil change, \nsome for battery maintenance, some for brakes, and some for varied services. She went \non to state that she would receive the coupons through an email, or sometimes through \nthe  mail,  and that the  other  service  advisor  also  received  the  coupons. Her  direct \nsupervisor, George Stallings, was aware of the coupons. “Some people would go home \nand get and bring them back and some people would email them to me or text them to \nme to where I could just print them off for them.” The coupons had never been an issue \nbefore. “In November, George talked to me about it, yes, he did.” “He told me that from \nthen on I needed to have authorization from him on every coupon.” She was not required \nto  sign  a  disciplinary  note. (Tr.  16 – 18) She  went  on  to state that  she  only  used  the \ncoupons  with  her  supervisor’s approval, and she was  terminated  by  Eric  Stewart,  the \ngeneral manager on January 19\nth\n. At that time, a new managing partner had been brought \non board who made “tremendous changes.” She was told by Eric Stewart that they were \ngoing to start with a clean state in the service department. At the time of her termination, \n\nKEETER – H401589 \nshe contacted someone about her workers’ compensation claim and her benefits which \nhad failed to arrive, and she then applied for unemployment benefits. She originally was \ndenied  but won an appeal for  the unemployment  benefits.  During the time  period after \nshe got hurt, she worked a second job at Beer Belly’s as a bartender and continued to \nwork there. She also admitted to cleaning houses for income during this time-period, with \nher best month earning between $250 to $300, and her worst month being $66, with these \nfigures prior to her paying for transportation or cleaning supplies. (Tr. 19 – 22) \n Under cross examination, the Claimant admitted her job duties for the respondent \nconsisted  of  checking  the  customer in,  doing  the  paperwork  on  the  computer,  and \nscanning the vehicle by hooking up the scan tool under the dash, and then getting the \nvehicle back to the technician. She would sometimes contact an insurance provider. She \nreported her injury to Cyndi Lindenmeyer after checking in a vehicle, and Cyndi had set \nher up an appointment at Lincoln Paden Clinic. She admitted being terminated on January \n19\nth\n. (Tr. 23-24) \n The claimant was then questioned about being written up on the date of November \nof 2023, and she responded that she was not written up but warned after a discussion \nwith her supervisor. She also admitted working at Beer Belly’s while employed by Clay \nMaxey, and still currently working there on Friday and Saturday nights, from five to nine \no’clock and being paid the same as prior to the injury. She additionally admitted that she \nhad received one unemployment check for the sum of $5412.00 or something like that.  \nIn regard to seeing Dr. Bruffett, she admitted seeing him in February, and being placed \non light duty. She went on to state “I made my job easier because I went and found what \n\nKEETER – H401589 \nI needed to make my job easier.” A co-worker would check in the cars for her. In regard \nto cleaning houses, she admitted cleaning up to eight houses. (Tr. 25 – 27) \n At this point, the claimant rested, and the respondents called their only witness, \nCyndi Lindenmeyer, the HR manager for all four of the Clay Maxy dealerships. She had \nworked in that capacity since October, performing payroll and handling human resource \nissues. Prior to that, she had worked as the office manager and controller at a single Clay \nMaxy Chevrolet dealership. She was familiar with the claimant and had worked with her \nsince probably in 2019. She testified that in regard to the coupons, General Motors mailed \nthem out, but she did  not  know  about  emails, and  the  coupons  offered discounts  on \nvarious services. There was no policy in the employee handbook in regard to coupons, \nbut there  were  policies  in  regard  to discounts  in  general. The  discounts  had  to  be \nauthorized and could not be just given out. (Tr. 28 -30) \n In regard to the claimant’s unemployment, Ms. Lindenmeyer testified that she \npersonally  filled  out  the  response for the state of Arkansas in regard to the claimant’s \nunemployment claim. The coupons were mailed to certain customers and if the coupons \nwere used by someone who was not issued a coupon, it was possible that General Motors \ncould decide not to reimburse the cost. In regard to light duty, Ms. Lindenmeyer was not \naware of a request for light duty. She went on to state that if the claimant had not been \nterminated for cause on January 19\nth\n, she would have continued to do the same work. \nLight duty would have been continued. (Tr. 31 – 34)  \n The following questioning then occurred: \nQ:  Have you had issues with honesty or dishonesty with Ms. Keeter, aside from \n      the coupon? \n\nKEETER – H401589 \nA:  There have been some instances where on some of her personal service \n      tickets, there were discounts that had been put on there that she had written, \n      and they were applied to her repair orders. \n \nQ.  Is that something that would have been authorized? \n \nA:  No.  We changed it to where - - what - - service advisors were not supposed \n     to write their own tickets and that had been addressed on more than one \n     occasion for that reason. And also they could not cashier their own tickets for  \n     that reason. \n \nQ.  Did you talk to her about that issue? \n \nA.  I sent emails about it to - - there have been - - there was - - there were a \n     couple of different times that emails were sent out that Becky would have \n     been there for both of those.  It was previous service advisors and then she \n     and Garrett too, I believe. \n \nShe went on to testify that they then changed the system. (Tr. 34) \nUnder cross examination, Ms. Lindenmeyer admitted that her office was down the \nhill adjacent to the dealership and she did not work in the service department but that she \ndid  go  to  the  dealership  on  occasion.  She  also  admitted  that  the  information  that  she \ntestified about today in regard to the claimant’s specific performance would have been \nreceived from others, but in regard to the tickets, she had questioned the claimant about \nhow a discount got on there. Ms. Lindenmeyer was not at the dealership on November \n13\nth\n, to know whether the claimant received a written or verbal admonishment. She went \non to testify that the claimant did in fact come to her, turn her clothing in, and tell her that \nEric had informed her that they were making a clean slate in the service department, and \nshe was fired, and Ms. Lindenmeyer agreed they were cleaning house. She also agreed \nthat  the  decision  by  the  appeals  committee  provided  that  the  handbook  called  for \nprogressive writeups. (Tr. 35 – 39) \n\nKEETER – H401589 \nOn  redirect,  Ms.  Lindenmeyer  testified  that  the  employment  handbook  was \nprovided to the employees and the claimant had in fact signed that she had received it.  \nThe appeals committee wanted to know if there was anything that pertained to the use of \nunauthorized use of the coupons and Ms. Lindenmeyer provided the handbook.  She also \ntestified that she was not consulted in regard to the claimant’s termination. (Tr. 40) \nOn  further  redirect,  Ms.  Lindenmeyer  was  asked  about  page  5  of  respondents \nexhibits and the employees warning notice that stated that the employee would not sign \nthe warning notice and that the document was initialed by G-S which would be Georges \ninitials. (Tr. 43) \nIn regard to the documentary evidence, the Claimant’s Exhibit one consisted of \nmedical  and  as  discussed  above,  the  respondents  agreeing to  surgery  by  Dr.  Bruffett, \nprior to the scheduled hearing. Consequently, additional medical was not an issue at the \ntime of the hearing. The claimant’s Exhibit 2, which consisted of eight pages of non-\nmedical  exhibits,  was  admitted  without  objection.  The  Form  AR-2  provided  that  the \nclaimant was injured on September 1, 2023.  (Cl. Ex. 2, P. 1) The First Report of Injury \nalso  provided  that  the claimant  was  injured  on  September 1,  2023,  and  this  document \nappeared to  be  filed  on  or  about  March  4,  2024.    (Cl.  Ex. 2,  P.  2)  A  decision  by  the \nArkansas Appeal Tribunal provided that a hearing was held on May 3, 2024. The decision \nprovided that the employer has the burden of proving misconduct by a preponderance of \nthe evidence and referred to Grigsby v. Everett, 8 Ark. App. 188, 649 S.W.2d 404 (1983), \nand  that  the  employer  has  not  shown  by  a  preponderance  of  the  evidence  that  the \nclaimant  willfully  disregarded  the  employers  interest  and  therefore  the  claimant  was \n\nKEETER – H401589 \ndischarged from her last work for reasons other than misconduct in connection with the \nwork. (Cl. Ex. 2, P. 6 – 8)    \nThe  respondents  exhibit  one  which  consisted  of  14  pages  of  non-medical \nrecords, was admitted without objection. The records from the Department of Workforce \nServices  provided  that  the  claimant  was  discharged  by  her  general  manager  due  to \nviolating  company policy  by  providing  discounts  to  customers  with no  proof  of  mailers.  \nThe documents provided that the claimant would make photocopies of the coupons and \ngive  them  to  the  customers  to  discount  work.  The  document  also  provided  that  the \nclaimant would not sign the warning notice.  (Resp. Ex. 1 P. 1-5) \nRespondents Exhibit 1 also included a surveillance report in regard to a video \nfrom  Meridian  Investigative  Group.  The  documents  provided  there  were  three  days  of \nsurveillance, Saturday, February 17, 2024, from 6:58 a.m. to 11:18 a.m.; Saturday March \n2, 2024, from 7:00 a.m. to 3:03 p.m.; and Saturday April 6, 2024, from 7:06a.m. – 3:07 \np.m. (Resp. Ex. 1, P. 6 – 14) \nRespondents Exhibit 2 consisted of the actual video observation of the claimant \ntotaling 21  minutes  and  37  seconds.  The  video  was in  fact  reviewed and  the  most \npertinent part of the video was taken primarily at a Dollar General which provided that the \nclaimant was walking and moving in a normal manner and gait without any ambulatory \naids. The video showed the claimant bending, twisting, and lifting, in a normal manner, \nwith no observable or apparent physical limitations. (Resp. Ex. 2) \n \n \n\nKEETER – H401589 \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn  the  present  matter,  the  parties  stipulated that the  claimant  sustained  a \ncompensable work-related injury to her back.  In determining whether the claimant has \nsustained  her  required  burden  of  proof for  her  claimed  benefits,  the  Commission  shall \nweigh the evidence impartially, without giving the benefit of the doubt to either party.  Ark. \nCode Ann 11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989).  \nFurther,  the  Commission  has  the duty to  translate evidence on all  issues  before  it  into \nfindings  of  fact. Weldon  v.  Pierce  Brothers  Construction  Co.,  54  Ark.  App.  344,  925 \nS.W.2d 179 (1996). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe  Arkansas  Workers’  Compensation  Act  and  must  sustain  that  burden  by  a \npreponderance of the evidence. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 635 \nS.W. 2d 823 (1982).  Preponderance of the evidence means the evidence having greater \nweight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark App. 263, \n101 S.W.3d 252 (2003).  Questions concerning the credibility of witnesses and the weight \nto  be given  to  their  testimony  are  within  the  exclusive  province  of  the  Commission.  \nPowers v. City of Fayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007).  Where there \nare contradictions in the evidence, it is within the Commissions’ province to reconcile \nconflicting evidence and to determine the true facts.  Cedar Chem. Co. v. Knight, 99 Ark. \nApp. 162, 258 S.W.3d 394 (2007).   \nThe claimant raised collateral estoppel in regard to the issue involving termination \nfor  cause,  contending  the  issue  had  already  been  resolved  by  the  Arkansas  Appeals \nTribunal in a matter involving unemployment benefits which the claimant contended she \n\nKEETER – H401589 \nwas entitled to receive.  In its decision, the Appeals Tribunal relied on Grigsby v. Escort, \n8 Ark. App. 188, 649 S.W.2d 404 (1983), for the premise that the employer (respondent) \nhas the burden of proving misconduct by a preponderance of the evidence, and held the \nemployee (claimant) was entitled to unemployment benefits.   \nCollateral  Estoppel  or  issue  preclusion, bars  litigation  of  issues  that  were \npreviously litigated.  Four requirements must be satisfied for collateral estoppel to apply, \nwith the first being the issue sought to be litigated must be the same as that involved in \nthe prior litigation. See Pine Bluff Warehouse v. Berry, 51 Ark. App. 139, 912 S.W.2d 11 \n(1995).  In the unemployment hearing before the Tribunal, the claimant and respondents \nwere litigating  the  issue  of  unemployment  benefits.  In  the  current  matter  before  the \nCommission, which has sole jurisdiction over workers’ compensation claims and benefits, \nthe claimant and respondents are litigating the issue of temporary total disability, clearly \na separate and different issue. It is also noted that the burden of proof in regard to showing \nmisconduct lies on the employer (respondent) in a hearing involving an unemployment \nclaim before the Tribunal, while the burden of proof regarding temporary total disability \nlies  on  the  employee  (claimant)  in  a  hearing  before  the  Commission.  Based  upon  the \nabove differences, there is no alternative but to find that collateral estoppel does not apply \nin regard to the hearing before the Commission. \nIn regard to the claimant’s claimed temporary total disability, the claimant suffered \na compensable injury to her back on September 1, 2023, and was not terminated until \nJanuary 19, 2024.  The claimant made the statement that they were cleaning house in \nthe  service  department,  the  area where she  worked, and  Ms.  Lindenmeyer,  whose \ntestimony was believable, and who testified that she was not involved with the termination \n\nKEETER – H401589 \nof the claimant, agreed with the claimant about the house cleaning. Ms. Lindenmeyer also \ntestified  that  she  recognized  the  initials  on  a  document being of  a  supervisor,  and  the \ndocument provided  that  the  claimant  would  not  sign  a  warning  notice  in regard  to  her \nwork.   \nA video  of  the  claimant was  entered  into  evidence that showed the  claimant \nshopping in a Dollar General Store where she was able to squat, reach out for items, and \nambulate. It is also noted that the claimant was receiving unemployment benefits during \nat least part of the time period for the requested temporary total disability benefits and \nthat to draw unemployment in the state of Arkansas, A.C.A. 11-10-507 (3) (A) requires \nthat  the  claimant  be  unemployed  but  mentally  and  physically  able  to  perform  suitable \nwork.   \nAdditionally, it is noted that the claimant admitted working as a bar tender at the \ntime  of  her  injury  and  still currently working  the same job, two  evenings  a  week.    The \nclaimant also admitted cleaning houses for a while during this period. \nTemporary total disability under the Arkansas Workers’ Compensation Act is the \nperiod within the healing period in which an employee suffers a total incapacity to earn \nwages.  Arkansas State Highway and Transportation Department v. Brashears, 272 Ark. \nApp  244,  613  S.W.2d  (1981)   The Commission may consider the claimant’s physical \ncapabilities  and  evaluate  her ability  to  engage  in  any  gainful  employment.   It  is  the \nclaimant who bears  the  burden  of  proving she  remains  in her healing  period  and \nadditionally suffered a  total  incapacity  to  earn  pre-injury  wages  in  the  same  or other \nemployment.  Palazzolo v. Nelms, 46 Ark. App. 130, 877 S.W.2d 938 (1994). Temporary \ntotal disability is not only based on the claimant’s healing period, but is awarded where \n\nKEETER – H401589 \nthe claimant’s injury-caused incapacity prevents her from earning the wages that she was \nreceiving at the time of the injury. County Mkt. v. Thorton, 27 Ark. App. 235, 770 S.W.2d \n156 (1989).  \nThe claimant failed to show that an injury-caused incapacity prevented her from \nearning the wages she was receiving at the time of her work-related injuries. Based upon \nthe above evidence and the applicable law, and after weighing the evidence impartially, \nwithout giving the benefit of the doubt to either party, there is no alternative but to find \nthat  the  claimant has failed  to satisfy the  required  burden  of  proof  to  prove  by  a \npreponderance  of  the  evidence  that she  is  entitled  to  temporary  total  disability  for  the \nperiod of time requested. \nIT IS SO ORDERED. \n  \n      ___________________________ \n      JAMES D. KENNEDY  \n      Administrative Law Judge","textLength":25625,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401589 BECKY L. KEETER, EMPLOYEE CLAIMANT CLAY MAXEY CHEVROLTET, CADILLAC EMPLOYER RESPONDENT CENTRAL ARKANSAS AUTO DEALERS, CARRIER/ RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED FEBRUARY 5, 2025 Hearing before Administrative Law Judge, James D....","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:43:16.698Z"},{"id":"alj-H402896-2025-02-05","awccNumber":"H402896","decisionDate":"2025-02-05","decisionYear":2025,"opinionType":"alj","claimantName":"Connie Roberts","employerName":"University Of Arkansas Fayetteville","title":"ROBERTS VS. UNIVERSITY OF ARKANSAS FAYETTEVILLE AWCC# H402896 February 05, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ROBERTS_CONNIE_H402896_20250205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROBERTS_CONNIE_H402896_20250205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H402896 \n \nCONNIE ROBERTS, Employee                                                                      CLAIMANT \n \nUNIVERSITY OF ARKANSAS FAYETTEVILLE, Employer                     RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier                                    RESPONDENT                                                              \n \n \n OPINION FILED FEBRUARY 5, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents   represented   by CHARLES   H.   MCLEMORE,   Attorney, Little   Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January  15,  2025,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on November 6, 2024 \nand a pre-hearing order was filed on that same date.  A copy of the pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The  employee/employer/carrier  relationship  existed  among  the  parties  on \nSeptember 1, 2023. \n 3.   Respondents have controverted this claim in its entirety. \n 4.   The claimant was earning an average weekly wage of $597.78 which would \n\nRoberts – H402896 \n2 \n \nentitle her to compensation at the weekly rates of $399.00 for total disability benefits and \n$299.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injury to claimant’s right arm and shoulder as a result of a  \ngradual onset injury or a specific incident on September 1, 2023. \n2.   Related medical. \n3.    Temporary total disability benefits from September 13, 2024 through a date  \nyet to be determined. \n4.    Attorney’s fee. \nThe claimant contends that she had no problem with her right shoulder and arm \nuntil she started doing heavy overhead lifting and pulling and her symptoms with her right \nshoulder got significantly worse after a particular incident on or about September 1, 2023.  \nTherefore,  the  claimant  contends  that  her  difficulties  constitute  a  compensable  injury \nunder  one  or  both  definitions  under  A.C.A.  §11-9-102(4).    She  contends  that  she  has \nreasonably required medical services for this injury and has been rendered temporarily \ntotally disabled by this injury from September 2, 2023 through a date yet to be determined.  \nShe seeks the statutory attorney’s fee on all appropriate benefits awarded. \nThe respondent contends that the claimant reported on April 17, 2024 having an \ninjury to her right shoulder occurring from gradual onset over a period of eight months, \nwhich  respondent  has  controverted.      Respondent  contends  that  the  claimant  cannot \nestablish that she sustained a specific incident injury to her right shoulder on September \n1,  2023,  or  that  she  sustained  an  injury  to  her  right  shoulder  arising  out  of  and  in  the \ncourse of her employment from a gradual onset injury caused by both rapid and repetitive \n\nRoberts – H402896 \n3 \n \nmotion.  Respondent contends that the claimant has a pre-existing condition in her right \nshoulder, that the claimant cannot establish that her alleged injury is the major cause of \nany disability or need for treatment she has, and that if her right shoulder condition were \nrelated to a work injury, the claimant cannot establish she has timely filed a claim for her \nright  shoulder  condition.    Respondent  contends  that  if  the  claimant’s  claim  was \ncompensable,  the  respondent  cannot  be  responsible  for  disability,  medical,  or  other \nbenefits prior to receipt of the employee’s report of injury. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non November  6,  2024 and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.    Claimant has failed to meet her burden of proving by a preponderance of the \nevidence that she suffered a compensable gradual onset injury to her right shoulder and \narm while employed by respondent. \n 3.   Claimant has failed to meet her burden of proving by a preponderance of the \nevidence that she suffered a compensable injury to her right shoulder and arm as a result \nof a specific injury while employed by respondent. \n \n\nRoberts – H402896 \n \n4 \n \n FACTUAL BACKGROUND \n The claimant is a 60-year-old woman with a GED.  Her prior jobs have included \nworking for a printing company in St. Louis for four and a half years; performing building \nmaintenance work for seven years; and in-home care of an elderly woman for six to eight \nmonths.  Immediately  prior  to  going  to  work  for  respondent  on  August  1,  2021,  the \nclaimant had been employed as a groundskeeper for various golf courses for 18 years. \n On August 1, 2021, claimant began working for respondent as a groundskeeper.  \nHer job duties were primarily mowing, but she also raked leaves, mulched leaves, and \noperated a weed eater.  On August 18, 2022, claimant was placed in charge of the tool \ncrib at respondent.  Claimant was responsible for checking out equipment to employees \nby  noting a  part  number  and  putting  information  into  a  computer  during  check out  and \ncheck in.   Claimant testified that she did not use the tools at the tool crib, but instead \nsimply  checked  them  out  to  workers  who  needed  various  tools.    She  also  spent  time \ncleaning tools, fixing tools, sweeping floors, and mopping floors.  She testified that the \ntool crib not only included tools, but many other things such as raincoats, boots, tables, \nand chairs.   \n Claimant  testified  that  she  had  no  physical  problems  performing  her  grounds-\nkeeping duties with respondent.  However, several months after she began working in the \ntool crib she started noticing problems with her right shoulder.   \n For several years claimant had sought medical treatment from Dr. Alec Spencer, \na chiropractic physician.  Medical reports from Dr. Spencer indicate that claimant made \nvarious complaints of pain in her shoulders.  Claimant attributes those complaints to back \nand neck pain, not shoulder joint pain.  \n\nRoberts – H402896 \n \n5 \n \n In  a  report  dated  June  29,  2023,  Dr.  Spencer  noted  that  claimant  was  having \ndifficulty using her right arm and could not lift anything over her head anymore.  He also \nnoted that claimant was having a hard time brushing her hair.  He requested an MRI scan \nfor  further  evaluation.    Dr.  Spencer’s  medical  reports  continue  to  reference  complaints \ninvolving claimant’s right shoulder.  Claimant eventually underwent an MRI scan on her \nright shoulder on March 12, 2024.  The findings on the MRI scan included: \n1. High-grade partial-thickness articular surface tear \ninvolving the distal fibers of the subscapularis medial \nsubluxation longhead biceps tendon is noted.  No \nmuscular atrophy is seen. \n \n2.  Low-grade intrasubstance tear involving the conjoined \ntendon of the supraspinatus and infraspinatus.   \n \n3.   Tendinopathy of the supraspinatus and infraspinatus. \n  \n4.    Mild to moderate degenerative changes of the acromio- \n            clavicular joint and Type II/III acromion. \n \n \n Following this MRI scan Dr. Spencer referred claimant to Dr. Samuel McClatchy \nat Ozark Orthopaedics.  Claimant was initially seen by Dr. McClatchy on April 16, 2024, \nand he recommended a surgical repair of the claimant’s right shoulder. \n Claimant has filed this claim contending that she suffered a compensable injury to \nher right shoulder and arm as a result of a gradual onset injury or a specific incident.  She \nseeks  payment  of  related  medical  treatment,  temporary  total  disability  benefits,  and  a \ncontroverted attorney fee. \nADJUDICATION \n Initially, claimant  contends  that  she  suffered  a  gradual  onset  injury  to  her  right \nshoulder and arm resulting from her job activities while working in respondent’s tool crib.  \n\nRoberts – H402896 \n \n6 \n \nPursuant to A.C.A. §11-9-102(4)(A)(ii), injuries that occur over a period of time and are \nnot  the  result  of  a  specific  incident  occurring  at  an  identifiable  time  and  place  are  not \ncompensable unless they are caused by rapid repetitive motion.  In order to be awarded \nbenefits for a gradual onset injury the claimant must prove several things:  (1)  the injury \narose out of and in the course of employment; (2)  the injury caused internal or external \nphysical  harm  to  the  body,  which  required  medical  services  or  resulted  in  death  or \ndisability; (3)  the injury was caused by rapid repetitive motion; (4) the injury was the major \ncause  of  the  disability  or need  for  treatment;  and  (5)  the  injury  was  established  by \nobjective findings.  A.C.A. §11-9-102(4)(D) and Malone v. Texarkana Public Schools, 333  \nArk. 343, 969 S.W. 2d 644 (1998).   \n With  respect  to “rapid  repetitive  motion”,  the  Courts  have established  a  two-\npronged test:  (1)  the task must be repetitive, and (2) the repetitive motion must be rapid.  \nAs a threshold issue, the tasks must be repetitive, or the rapidity element is not reached.  \nEven repetitive tasks and rapid work, standing alone, do not satisfy the definition.  The \nrepetitive tasks must be completed rapidly.  Malone, supra.   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet her burden of proving by \na  preponderance  of  the  evidence  that  she  suffered  a  gradual  onset  injury  to  her  right \nshoulder.  Specifically, claimant has failed to prove that she suffered an injury that was \ncaused by rapid repetitive motion.   \n As previously noted, claimant was responsible for operating the respondent’s tool \ncrib.  The tool crib was located in a building which contained various tools as well as other \nitems such as raincoats, boots, tables, and chairs.  When an employee appeared at the \n\nRoberts – H402896 \n \n7 \n \ntool crib claimant would check out a particular item to that employee and note its status \nin  a  computer.    When  the  item  was  returned  claimant  would  return  the  item  to  the \ninventory and note that in the computer.  \n Claimant specifically testified as to two items in particular which she dealt with at \nthe tool crib.  These two items were barricades and an overhead door.  The barricades \nconsisted  of  two  A-frames  with  a  long  beam  laid  across  the  top  of  each  A-frame.  \nEssentially,  these barricades  look like  a  sawhorse  and  photos  of  the  barricades  were \nsubmitted into evidence by the respondent.  It was claimant’s testimony that the A-frame \nportion of the barricade was stored on a beam that stuck out about 10 to 12 feet long. \nClaimant testified that the number of barricades checked out daily would vary with some \ndays it being five and other days being two. \n Claimant  also  testified  that  the  tool crib  had  an  overhead  bay  door  for  taking \nequipment in and out of the building.  In order to open the door she had to pull on a heavy \ntow bar chain and it took a great deal of force for her to open the door.  Claimant testified \nthat on some days she would open the door up to ten times a day, but other days she \nmight only open the door twice a day. \n With respect to her job duties, the following testimony occurred: \n  Q As far as your other job duties at the tool crib, it \n  varied from day-to-day; correct? \n \n  A Correct. \n \n  Q So there was no certain movements of your shoulder \n  that you made very single day.  It would vary for every shift; \n  correct? \n \n  A Yes, sir. \n \n\nRoberts – H402896 \n \n8 \n \n \nI do not find that claimant has proven that her job duties required her to engage in rapid \nrepetitive  motion.    As  previously  noted,  the Courts  have  stated  that  the  tasks  must  be \nrepetitive and that the repetitive motion must be rapid.  In essence, repetitive tasks must \nbe completed rapidly.  Malone, supra.  Here, I find insufficient evidence that claimant’s \njob  duties  involved  repetitive tasks  that  were  completed  rapidly.    Absent  sufficient \nevidence  that  she  was  performing  repetitive  tasks  that  were  completed  rapidly,  she \ncannot establish a compensable gradual onset injury to her right shoulder.  Accordingly, \nI find that claimant has failed to meet her burden of proving by a preponderance of the \nevidence that she suffered a gradual onset injury to her right shoulder while employed by \nthe respondent. \n I likewise find that claimant has failed to prove by a preponderance of the evidence \nthat she suffered a compensable injury as the result of a specific incident identifiable by \ntime and place of occurrence.  In her contentions, claimant alleged that she suffered a \ncompensable  injury as  a  result  of  a  specific  incident  which  occurred  on  or  about \nSeptember 1, 2023.  Claimant testified that on this particular day she was opening the \noverhead door and when she pulled on the chain “it hurt so bad in my shoulder.”  Claimant \ntestified that she did not know if her shoulder popped, but she could not get the door open \nand another employee had to open it.   \n Although claimant originally alleged that this occurred on or about September 1, \n2023,  at  the  hearing  she  acknowledged  that  she  did  not  know  the  exact  date  of  the \nincident but believed it occurred sometime between September and November 2023.  Dr. \nSpencer’s medical report contains the following history: \n\nRoberts – H402896 \n \n9 \n \n  Patient states she is feeling worse since her last visit. \n  Can not lift anything over head anymore and has a  \n  hard time just brushing her hair.  Said she can hardly \n  work anymore because of it. \n \n \n At the hearing, claimant testified that the additional problems with her shoulder and \ndifficulty brushing  her hair  would  have occurred  within  two  weeks of  when the  incident \nwith the door occurred.  However, this history in Dr. Spencer’s medical records was not \nbetween September and November 2023, but instead was noted in Dr. Spencer’s medical \nreport of June 29, 2023, several months earlier.  In addition, I note that Dr. Spencer at \nthat time went on to state: \n  Shoulder has progressively gotten worse and can \n  not perform normal ADLs anymore.  Will be requesting \n  an MRI again, X-rays taken today of the shoulder and \n  arm were WNL.  MRI is needed for further evaluation. \n \n \n Notably, there is no mention in Dr. Spencer’s medical record of that date of any \nincident of the claimant lifting a door.  Furthermore, Dr. Spencer stated that he would be \nrequesting an MRI “again”.  There is no  indication as to when Dr. Spencer had previously \nrecommended an MRI scan.   \n Not only is there no mention in Dr. Spencer’s report of June 29, 2023 of an incident \nwith a door, there is no mention in any of Dr. Spencer’s medical reports of the claimant \nhaving reported an injury to her right shoulder while lifting an overhead door. \n Also  significant  is  Form  AR-N  signed  by  claimant  on  April  23,  2024.    That  form \ncontains the following description of how claimant was injured: \n  The employee was pulling chains and lifting tools  \n  which she was able to do perfectly fine when she \n  started working in this position.  She states that \n\nRoberts – H402896 \n \n10 \n \n  over the last 8 months she has started to experience \n  symptoms in the right shoulder and bicep and has \n  since been diagnosed with tears in the rotator cuff \n  and bicep.  This has affected her ability to perform \n  necessary tasks at work. \n \n \n While this form was typed by another individual, it was signed by claimant on April \n23, 2024.   \n In  addition,  prior  to  hiring  Attorney  Ellig  to  represent  her,  claimant  originally \nproceeded pro  se.    Claimant  completed  a  pre-hearing  questionnaire  in  her  own \nhandwriting  which  she  signed  on  August  26,  2024.    In  describing  her  injury,  claimant \nstated: \n  I started at tool crib on October 18\nth\n, 2022.  I had no \n  problems with doing any part of my job duties.  After \n  about 6 to 8 months of repetitive duties (lifting street \n  barricades above my head to hang on the upper beams \n  & dealing with opening and closing bay door that has \n  problems with pulling a very heavy chain to open & \n  close.  I started noticing a lot of pain in my right shoulder \n  & right arm. \n \n \n Thus,  claimant’s  AR-N  which  she  signed  in  April  2024  and  in  her  pre-hearing \nquestionnaire in her own handwriting which she signed on August 26, 2024, claimant did \nnot mention any specific incident but instead attributed her problems to the gradual onset \ninjury involving her job duties with respondent in the tool crib. \n Finally, I note that claimant was referred by Dr. Spencer to Dr. Samuel McClatchy, \nan orthopedic surgeon, for an evaluation and he has recommended a surgical procedure.  \nIn his report of April 16, 2024, he stated: \n  She has concerns in regards to her time off of work and \n  has also filed for Workers’ Compensation in regards to  \n\nRoberts – H402896 \n \n11 \n \n  this injury.  Given that there is no muscle atrophy noted \n  of the subscapularis I discussed with her that this is \n  likely an acute injury rather than something that has \n  been present for years.  She does not report a specific \n  injury, but this may be more related to repetitive lifting \n  with her shoulder.  (Emphasis added.) \n \n \n Thus, Dr. McClatchy has opined that claimant’s injury is acute in the sense that it \nhas not been present for years, but since no specific injury was reported, it was his opinion \nthat it was related to repetitive lifting.  As previously noted, claimant has failed to prove \nthat her job activities required rapid repetitive motion to establish a compensable gradual \nonset injury. \n For the reasons discussed herein, I also find that claimant has failed to prove by a \npreponderance of the evidence that she suffered a compensable injury as a result of a \nspecific  incident  identifiable  by  time  and  place  of  occurrence.    Claimant  indicated  that \nwhile  she  did not  know  the  date  of  the  specific  incident, she  believed  it occurred \nsometimes between September and November 2023.  However, Dr. Spencer’s report of \nJune 29, 2023 indicates that claimant was having difficulties with her right arm and that \nshe was having a hard time brushing her hair and could not performing normal activities \nof  daily  living.    Claimant  testified  that  this  was  within  two  weeks  of  the  door  incident.  \nHowever, Dr. Spencer’s report is dated June 29, 2023.  Furthermore, there is no mention \nof  any  incident  lifting  a  door  in  any  of  the  medical  reports  submitted  into  evidence.  \nFurthermore, claimant signed Form AR-N on April 23, 2024, and handwrote answers to \na  pre-hearing  questionnaire  on  August  26,  2024,  making  no  mention  of  any  specific \nincident.    Finally,  McClatchy  has  indicated  that  claimant’s  findings  are  more  related  to \nrepetitive lifting.  Accordingly, I find that claimant has failed to prove a compensable injury \n\nRoberts – H402896 \n \n12 \n \nby a specific incident identifiable by time and place of occurrence. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that she suffered \na compensable injury in the form of a gradual onset injury or a specific injury identifiable \nby  time  and  place  of  occurrence.    Therefore,  her  claim  for  compensation  benefits  is \nhereby denied and dismissed. \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $873.45. \nIT IS SO ORDERED. \n \n       ________________________________ \n        GREGORY K. STEWART \n        ADMINISTRATIVE LAW JUDGE","textLength":20599,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402896 CONNIE ROBERTS, Employee CLAIMANT UNIVERSITY OF ARKANSAS FAYETTEVILLE, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED FEBRUARY 5, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, W...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:5"],"injuryKeywords":["shoulder","repetitive","back","neck","rotator cuff"],"fetchedAt":"2026-05-19T22:43:18.771Z"},{"id":"alj-H401705-2025-02-04","awccNumber":"H401705","decisionDate":"2025-02-04","decisionYear":2025,"opinionType":"alj","claimantName":"Karisha Brown","employerName":"Central Ark. Opthalmology","title":"BROWN VS. CENTRAL ARK. OPTHALMOLOGY AWCC# H401705 February 04, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Brown_Karisha_H401705_20250204.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brown_Karisha_H401705_20250204.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H401705 \n \n \nKARISHA BROWN, EMPLOYEE CLAIMANT \n \nCENTRAL ARK. OPTHALMOLOGY, \n EMPLOYER RESPONDENT \n \nUNION INS. CO. OF PROVIDENCE, \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 4, 2025 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on January 30, \n2024, in Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Ms. Karen  H.  McKinney,  Attorney  at  Law,  Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  Respondents’ Motion  to \nDismiss.  A hearing on the motion was conducted on January 30, 2024, in Little \nRock, Arkansas.  Claimant appeared in person and testified.  Respondents were \nrepresented at the hearing by Ms. Karen H. McKinney, Attorney at Law, of Little \nRock, Arkansas.  In addition to Claimant’s testimony, the record consists of the \nfollowing exhibit:  Respondents’ Exhibit 1, forms, pleadings, and correspondence \nrelated  to  this  claim, consisting  of eight pages.  Also,  in  order  to  address \nadequately   this   matter   under   Ark.   Code   Ann. § 11-9-705(a)(1)   (Repl. \n2012)(Commission  must  “conduct  the  hearing  .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe record forms, pleadings, and correspondence from the Commission’s file on \n\nBROWN – H401705 \n \n2 \nthe claim, along with the post-hearing briefs of the parties, totaling 24 pages.  In \naccordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 Ark. App. \nLEXIS 549, these documents have been served on the parties in conjunction with \nthis opinion. \n The evidence reflects that on March 8, 2024, Claimant filed a Form AR-C, \nalleging  that she was  entitled  to initial medical  and  temporary  partial  disability \nbenefits for her injuries she allegedly suffered on October 17, 2023.  She related: \nAttacked and bitten by Dr. Roza[’]s [b]ig [d]og walking down hallway \nto my desk after delivering patient[’]s to the [d]octor[’]s offices.  Dog \njumped  on  my  back[,]  scratching  me[,]  pushing  me[,]  and  bit  my \nback of [r]ight arm. \n \nPer  the  First  Report  of  Injury  or  Illness  filed  on  March  21,  2024,  Claimant \npurportedly suffered injuries at work on October 17, 2023, while returning patient \ncharts.    According  to  the  Form  AR-2  that  was  also  filed  on  March  21,  2024, \nRespondents controverted the claim in its entirety. \n The  record  reflects  that  no  further  activity  occurred  on  this  claim  until \nOctober  10,  2024,  when  Respondents  filed  the  instant  Motion  to  Dismiss under \nAWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702  (Repl.  2012).    Therein,  they \nalleged  that  more  than  six  months  had  elapsed  since  the  filing  the  Form  AR-C \nwithout Claimant requesting a hearing thereon.  The file was reassigned to me on \nOctober   11,   2024;   and on   October   14,   2024, my   office wrote   Claimant, \nrequesting  a  response  to  the  motion  within  20  days.   The  letter  was  sent  to \nClaimant  by  first-class  and  certified  mail  to  the  address  she  listed  on  the  Form \n\nBROWN – H401705 \n \n3 \nAR-C:    1502  Green  Mountain  Drive,  Little  Rock,  Arkansas    72211.    However, \nboth items of correspondence were returned to the Commission with the notation \n“INSUFFICIENT  ADDRESS.”    (Emphasis  in  original)    Unsurprisingly,  no \nresponse from Claimant was forthcoming. \n On  November  6,  2024,  this  hearing  was  initially  scheduled  for  December \n12, 2024, at 9:30 a.m. at the Commission in Little Rock.  The Notice of Hearing \nwas  sent to  Claimant at  the  same  address as  used  previously.   As  before,  both \nthe  certified  and  first-class  letters  were  returned.    On  December  10,  2024,  I \nemailed  Respondents’  counsel  that  the  notations  on  the  returned \ncorrespondence  led  me  to  research  and  confirm  that  Claimant  resided  at  an \napartment  complex,  and  that  her  unit  number  was  172.    For  that  reason,  I \ncanceled the hearing and issued a new 20-day letter with the enhanced address.  \nBut once again, the United States Postal Service returned both the certified and \nfirst-class  letters,  explaining  that  they  were  “NOT  DELIVERABLE  AS \nADDRESSED.”  (Emphasis in original)  Again—unsurprisingly—Claimant did not \nfile the requested response to Respondents’ motion. \n On  December  30,  2024,  the  hearing  on  the  Motion  to  Dismiss  was \nrescheduled for January 30, 2025, at 9:30 a.m. at the Commission in Little Rock.  \nBut in this instance, while the Notice of Hearing was again sent to Apartment 172 \nand the address listed on Claimant’s Form AR-C, the one sent by first-class mail \nmanaged  to  be  delivered  to  her.    She  brought  it  to  the  hearing,  crumpled,  and \n\nBROWN – H401705 \n \n4 \ntestified that it along with a number of other mail items had been delivered to her \nbelatedly en masse. \n The  hearing took  place  as  scheduled.    Both  parties  appeared,  and \nClaimant  testified.  Respondents  argued  for  dismissal  under  both  §  11-9-\n702(a)(4) & (d) (Repl. 2012) and Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including   medical   reports, \ndocuments,  and other matters  properly before  the  Commission,  and  having  had \nan  opportunity  to  hear  the  testimony  of Claimant,  I  hereby  make  the  following \nfindings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n3. Respondents have not proven by a preponderance of the evidence \nthat  Claimant  has  failed  to  prosecute this  claim under AWCC  R. \n099.13. \n4. Respondents have not proven by a preponderance of the evidence \nthat  this  claim  should  be  dismissed  under  Ark.  Code  Ann.  §  11-9-\n702(a)(4) (Repl. 2012). \n\nBROWN – H401705 \n \n5 \n5. Respondents have not proven by a preponderance of the evidence \nthat  this  claim  should  be  dismissed  under  Ark.  Code  Ann.  §  11-9-\n702(d) (Repl. 2012). \n6. The Motion to Dismiss is hereby denied. \n7. Claimant has requested a hearing on the issue of her entitlement to \ninitial benefits. \n8. This claim will proceed to a hearing on the merits. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  In turn, Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) read: \n(4)   If   within   six   (6)   months   after   the   filing   of   a   claim   for \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing,  be  dismissed  without  prejudice  to  the  refiling  of  the  claim \nwithin  limitation  periods  specified  in  subdivisions  (a)(1)-(3)  of  this \nsection. \n \n. . . \n \n(d) If  within  six  (6)  months  after  the  filing  of  a  claim  for additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing, if necessary, be dismissed without prejudice to the refiling \nof  the  claim  within  limitation  periods  specified  in  subsection (b) of \nthis section. \n\nBROWN – H401705 \n \n6 \n \n(Emphasis  added)   Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012), \nRespondents  must  prove  by  a  preponderance  of  the  evidence  that  dismissal \nshould be granted.  The standard “preponderance of the evidence” means the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson \nWorld Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37 S.W.3d 649 (2001).  The Commission must sort through conflicting evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n Claimant testified that the reason that she had not requested a hearing on \nher  claim  after  its  filing  was  that  she  was  unaware  that  she  had  to  do  so.    The \nsilence   she   encountered   after   its   filing,   she   surmised,   was   due   to   the \nCommission  being  busy;  she  was  simply  waiting  to  hear  back.    As  for  the \nincomplete address on her Form AR-C, she was unable to explain why she had \n\nBROWN – H401705 \n \n7 \ndone this.  Claimant requested a hearing on her claim, in the event that it is not \ndismissed. \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  motion  to  dismiss  hearing \nunder Rule 13, she has not yet abridged that rule.  By the same token, I find that \nwhile § 11-9-702(a)(4) & (d) provide that a claim “may” (clearly intending that the \nadministrative  law  judge has  discretion  in  the matter)  be  dismissed  for  failure  to \nrequest a hearing within six months of the filing of the claim, dismissal is not yet \nwarranted here.  The Motion to Dismiss is thus denied. \n Prehearing  questionnaires  will  be  immediately  issued  to  the  parties;  and \nthis matter will proceed to a full hearing on the merits. \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby respectfully denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":10559,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H401705 KARISHA BROWN, EMPLOYEE CLAIMANT CENTRAL ARK. OPTHALMOLOGY, EMPLOYER RESPONDENT UNION INS. CO. OF PROVIDENCE, CARRIER RESPONDENT OPINION FILED FEBRUARY 4, 2025 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 30, 2024, in Lit...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1","denied:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:43:14.618Z"},{"id":"full_commission-H302489-2025-01-30","awccNumber":"H302489","decisionDate":"2025-01-30","decisionYear":2025,"opinionType":"full_commission","claimantName":"Dane Monger","employerName":"Horseshoe Canyon Ranch","title":"MONGER VS. HORSESHOE CANYON RANCH AWCC# H302489 January 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Monger_Dane_H302489_20250130.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Monger_Dane_H302489_20250130.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nFILE NO. H302489 \nDANE MONGER, EMPLOYEE               CLAIMANT \nHORSESHOE CANYON RANCH, EMPLOYER            RESPONDENT \nBRIDGEFIELD CASUALTY/SUMMIT CONSULTING, \nCARRIER/TPA                                RESPONDENT \n \nORDER FILED JANUARY 30, 2025 \nUpon  review  before  the  FULL  COMMISSION  in  Little  Rock,  Pulaski  County, \nArkansas.  \n \nClaimant was represented by the HONORABLE DANIEL E. WREN, Attorney at Law, \nLittle Rock, Arkansas.  \n \nRespondents represented by the HONORABLE ZACHARY F. RYBURN, Attorney at \nLaw, Little Rock, Arkansas.  \nORDER \n  This matter comes before the Full Commission on the Claimant’s \nMOTION FOR EXTENTION OF TIME. The Full Commission grants the Claimant’s \nmotion.  \n  After consideration of the Claimant’s motion, no objection by the \nRespondent, and all other matters properly before the Commission, the \nCommission finds that the Claimant’s motion should be and is hereby granted, and \nthat the Claimant has an additional thirty (30) days to file his brief.  \n  \n \n \n\nMonger – H203489 \n2 \n \n \nIT IS SO ORDERED.   \n \n \n \n \n \n \n \n_______________________________\n \n  \n \nSCOTTY DALE DOUTHIT, Chairman\n \n           \n \n \n_\n______________________________\n \n   \nM. SCOTT WILLHITE, Commissioner\n  \n \n \n                       \n__________________________\n_____\n \n \n  \n  \nMICHAEL R. MAYTON, Commissioner","textLength":1387,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION FILE NO. H302489 DANE MONGER, EMPLOYEE CLAIMANT HORSESHOE CANYON RANCH, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY/SUMMIT CONSULTING, CARRIER/TPA RESPONDENT ORDER FILED JANUARY 30, 2025 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Cl...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.702Z"},{"id":"alj-H300194-2025-01-30","awccNumber":"H300194","decisionDate":"2025-01-30","decisionYear":2025,"opinionType":"alj","claimantName":"Tammy Craig","employerName":"Arrow Workforce Solutions","title":"CRAIG VS. ARROW WORKFORCE SOLUTIONS AWCC# H300194 January 30, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Craig_Tammy_H300194_20250130.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Craig_Tammy_H300194_20250130.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300194 \n \n \nTAMMY T. CRAIG, EMPLOYEE CLAIMANT \n \nARROW WORKFORCE SOLUTIONS, \n UNINSURED EMPLOYER RESPONDENT \n \n \nOPINION FILED JANUARY 30, 2025 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on December  13,  2024,  in \nForrest City, St. Francis County, Arkansas. \n \nClaimant pro se. \n \nRespondents represented  by  Mr. R.  Scott  Zuerker,  Attorney  at  Law, Fort  Smith, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On December  13,  2024,  the  above-captioned  claim  was  heard  in Forrest  City, \nArkansas.  A prehearing conference took place on October 14, 2024.  The Prehearing \nOrder  entered on  October  15,  2024, pursuant  to  the  conference  was  admitted  without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the \nstipulations, issues, and respective contentions, as amended, were properly set forth in \nthe order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  Following an amendment of Stipulation No. 4, they read as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n\nCRAIG – H300194 \n \n2 \n2. The  employee/employer  relationship  existed  between  the  parties  on  July \n11, 2022, and at all other relevant times. \n3. Respondent has controverted this claim in its entirety. \n4. Claimant’s average weekly wage of $989.18 entitles her to compensation \nrates of $659.00/$494.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether  Claimant  sustained  compensable  injuries\n1\n to her  head,  hips, \nbuttocks, and right knee by specific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged compensable injuries. \n3. Whether Claimant is entitled to temporary total disability benefits. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n \n \n1\nDuring  her  testimony,  Claimant  made  references  to  injuring  her  lower  back  as \nwell.  Informed that her back had not been made a subject of the hearing, she moved to \namend  the  compensability  issue  to  include  an  alleged  lower  back  injury.    After \nRespondents objected due to a lack of adequate notice, the motion was denied.  Thus, \nthe  issue  of  whether  Claimant  sustained  a  compensable  injury  to  her  lower  back  by \nspecific incident is reserved and is not addressed herein. \n\nCRAIG – H300194 \n \n3 \n Claimant: \n1. Claimant  contends  that  she sustained  compensable  injuries to her  head, \nhips,  buttocks,  and  right  knee  as  the  result  of  a  work-related  fall  on  July \n11, 2022, and that she is entitled to medical and temporary total disability \nbenefits as a result. \n Respondent: \n1. Respondents contend that they have controverted this claim in its entirety. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of the  witnesses and  to  observe their demeanor,  I  hereby  make  the \nfollowing Findings of Fact and Conclusions of Law in accordance with Ark. Code Ann. § \n11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has not proven  by  a  preponderance  of  the  evidence  that she \nsustained a compensable injury to her head by specific incident. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her hips by specific incident. \n5. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her buttocks by specific incident. \n\nCRAIG – H300194 \n \n4 \n6. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her right knee by specific incident. \n7. Because of Findings/Conclusions Nos. 3-6 supra, the remaining issues—\nwhether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of her alleged compensable injuries and whether she is entitled \nto temporary total disability benefits—are moot and will not be addressed. \nADJUDICATION \nSummary of Evidence \n The witnesses at the hearing were Claimant, Marica Pettway, and Cedric Paxton, \nSr.  Along  with the Prehearing Order  discussed  above,  the  exhibits admitted  into \nevidence were Claimant’s Exhibit 1, a compilation of her medical (one index page and \n71 numbered pages thereafter) and non-medical records\n2\n (three index pages and eight \nnumbered  pages  thereafter); Claimant’s Exhibit 2, non-medical  records,  consisting  of \neight  numbered  pages; Respondent’s Exhibit  1,  a  compilation  of Claimant’s medical \nrecords,   consisting   of three   index   pages   and   212   numbered   pages   thereafter; \nRespondents’ Exhibit 2,  non-medical  records,  consisting  of  one  index  page  and 17 \nnumbered pages thereafter. \nA. Compensability \n Standards.   Arkansas Code  Annotated  § 11-9-102(4)(A)(i)  (Repl.  2012),  which  I \nfind applies to the analysis of Claimant’s alleged injuries, defines “compensable injury”: \n \n \n2\nThese are simply a duplicate of Claimant’s Exhibit 2. \n\nCRAIG – H300194 \n \n5 \n(i) An  accidental  injury  causing  internal  or  external  physical  harm  to \nthe  body  .  .  .  arising  out  of  and  in  the  course  of  employment  and \nwhich requires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident and is \nidentifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16). \n If  Claimant  fails  to  establish  by  a  preponderance  of  the  evidence any of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n Discussion.  The evidence shows that on the alleged date of injury, Claimant was \nan employee of Respondent Arrow Workforce Solutions (“AWS”), which is a temporary \nstaffing agency.  AWS had assigned her to the Marion, Arkansas plant of Hino Motors \nManufacturing USA, Inc. (“Hino”).  That facility manufactures Toyota automotive parts.  \nClaimant worked on the carrier case production line there during the period at issue. \n The following exchange took place: \nQ. You had said that you got hurt on July 11, 2022? \n \nA. Correct. \n \nQ. All right.  What happened on that day? \n \n\nCRAIG – H300194 \n \n6 \nA. Well,  I  went  into  work  on  that  day.    The  line  was  short-staffed.    It \nwas myself on that line by myself.  Usually it’s three to four workers \non that line, but a lot of people didn’t come in that day.  It’s—it’s a \nline that goes from this part to this end, end to end . . . [t]he carrier \ncase  consists  of  a  line  that  goes  from  A—A [L]ine  all  the  way \nthrough  I  think  D.    A,  B,  C,  D,  E  is  different  sections  of  the  area.  \nSection A is where a group of workers work, B, C, and D. \n \nQ. Okay.  And you were in what section again? \n \nA. I think I was in C. \n \nQ. All right.  So what were you doing working in C on July 11, 2022? \n \nA. I  was  working  making  carrier  case  parts.    I  went  to  load  the  line \nbecause I ran out of carrier cases.  Carrier cases are the parts that \nwe put in the machine to file them down and drill holes in them.  We \nran out of parts for that machine.  There was nobody to load them, \nand usually when there is nobody to load them on there, we have to \nload them our[s]elf.  I went down to the back of the line to get ready \nto load a carrier case on the line.  I slipped in some product and fell \nbackwards with the part. \n \nQ. All right.  Let’s stop for a second, and let’s go back and kind of flesh \nthis out. \n \nA. Okay. \n \nQ. You  were  putting  a  carrying  case  yourself  on  the  line,  you  were \nhanging it, is that correct? \n \nA. On the loading line. \n \nQ. On  the  loading  line.  What does  that  mean to put  it on  the  loading \nline? \n \nA. The loading line is in the back of the carrier case line.  It’s where we \nload the parts on the conveyor belt to load and go up the ramp and \ncome down the line to us. \n \nQ. All right.  And you said you slipped in a product? \n \n\nCRAIG – H300194 \n \n7 \nA. Yes.  I don’t know what the product consists of, oil mixed with some \nother  solution.    They got mixed together.   But  it’s milky-looking, \nit’s—I don’t know what it is. \n \n. . . \n \nQ. Tell  us  what  happened.    You  hit—did  you  hit  anything?    Where—\nhow did you land?  Go into detail on this. \n \nA. I  land  on—I  land  backwards  on  my  butt,  and  I  hit  my  head \nbackwards.    And  I  threw—the  part  was  in  this  right  hand,  and  I \nthrew it over my head so it wouldn’t fall on my head. \n \n. . . \n \nQ. You said you head hit something.  What did your head hit? \n \nA. The ground. \n \n. . . \n \nQ. What’s the ground made of? \n \nA. Concrete. \n \nLater, Claimant elaborated that she injured her right leg in the fall as well. \n Per  Claimant,  she  immediately  reported  the  incident  to  Antonio  Moore,  her \nsupervisor.    She  was  instructed  to  continue  working.    But  after  she  later  requested  to \nleave because she was hurting, Moore allowed her to do so. \n The next day, July 12, 2022, she was informed that she had to work because no \none from AWS was present at the jobsite.  However, on July 14, 2022, she was given \nan  appointment  at  Coast  to  Coast  Medical (“Coast to Coast”).  The  record  of  that  visit \nreflects that Claimant informed treating personnel at the clinic that she slipped at work \non July 11, 2022, and “landed on [her] rear . . . .”  She presented with pain in her lower \n\nCRAIG – H300194 \n \n8 \nback,  right  hip,  and  the  back  of  her  thigh.    Claimant  was  diagnosed  as  having  lower \nback pain as a result of a fall, was allowed to return to work without restrictions on July \n18,  2022,  and  was  prescribed Ibuprofen.    After  a  follow-up  visit  to  Coast  to  Coast  on \nJuly 20, 2022, Claimant was assessed by Lance Harrell, NP, as having right lower back \nand gluteal pain; and she was informed that she could return to work without restrictions \nas of July 25, 2022. \n The foregoing records are devoid of objective findings of an injury to Claimant’s \nhead,  hips,  buttocks, and  right  knee.   As  for  the  remaining  medical  records  that are  in \nevidence, the first and only reference to her head is a report of an MRI of her head that \ntook  place  on March  18,  2023—and  which  was  compared  to  another  that  she \nunderwent  on  April  29,  2020.  The  stated  reason  for  the  MRI  was  that  Claimant  was \npresenting with “vascular headaches.”  The Coast to Coast records do not show that \nshe reported striking her head in the alleged fall at Hino.  It is noteworthy that this MRI \noccurred eight months after the alleged fall.  Questioned at the hearing about her head, \nClaimant acknowledged that her headaches were a pre-existing condition, and that her \nproviders  had  posited  that  her  use  of  narcotics  was  the  source  of  them.    She  agreed \nthat  in  2019,  she  was  complaining  of  headaches  and  dizziness,  and  reported  having \nfalls, a motor vehicle accident, and suffering a head injury.  The following exchange took \nplace: \nQ. So  whatever  happened  with  the  looking  into  the  traumatic  brain \ninjury? \n \nA. When they looked into that, they found nothing.  To my knowledge, \nthey found nothing because they never discussed it with me. \n\nCRAIG – H300194 \n \n9 \n \n. . . \n \nQ. So you’re having problems out of the right eye? \n \nA. Correct.  That’s the eye that I wear the glasses for.  I actually wear \nthe glasses for both, but the right eye is they eye with the problem, \nand this side of the head where I hit my head is where the scarring \nthe brain is. \n \nBut the MRI report by Dr. Scott Didier reads in pertinent part: \nFindings \nThere  is  no  diffusion  abnormality.    There  is  no mass  effect extra-axial \ncollection.    There  is  no  hydrocephalus.    There  are  a  few  scattered \npunctate  T2/FLAIR  hyperintensities  in  the  supratentorial  white  matter \nbilaterally,  nonspecific  and  unchanged.    This  may  represent  sequela  of \nmigraine headaches  or  minimal  microangiopathy  among  other  less  likely \netiologies.    The  intracranial  internal  carotid  arteries  and  basilar  artery \ndemonstrate signal void implying gross patency.  The orbits and skull base \nare   grossly   unremarkable.      Minimal   cerebellar   tonsillar   ectopia   is \nunchanged.    There  is  no  mass  effect  on  the  brainstem  or  upper  cervical \nspine. \n \nImpression. \nMinimal  supratentorial  white  matter  T2  hyperintensities,  nonspecific,  as \ndiscussed.  Minimal cerebellar tonsillar ectopia. \n \nThese are not objective findings of a head injury.  And even if they were, assuming so \nonly  for  the  sake  of  argument,  they cannot be causally related to Claimant’s alleged \nwork-related fall. \n There are no objective findings in evidence with respect to her buttocks.  As for \nher hips, she underwent an MRI of her hips and pelvis on July 27, 2022—16 days after \nher  alleged  fall.    The  findings  of  that  MRI,  per  Dr.  Scott  Ferguson,  were  normal.   The \nonly  other  references—post-July  11,  2022—to  her  hips in her  medical  records are \ngeneral complaints of left hip pain that do not mention her alleged fall.  I note that these \n\nCRAIG – H300194 \n \n10 \nsame records reflect that she was diagnosed as having osteoarthritis of the hip.  This, of \ncourse, is a degenerative condition.  Therefore, there are no objective findings of a hip \ninjury, either. \n Finally, with regard to Claimant’s alleged right knee injury, Amber Sloan, APRN, \nstated  on  January  18,  2023,  that  Claimant  had  crepitus  in  the  right  knee.    Because \ncrepitance is a condition that can be heard and/or felt—i.e., perceived with one or more \nof  the  five  senses,  per  DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 433  (30\nth\n ed. \n2003)— and is not voluntary, it can constitute an objective finding.  But it is worth noting \nnot only that Sloan found crepitus in both of Claimant’s knees—i.e., the non-injured as \nwell as the allegedly injured one—but that the records of Claimant’s July 27, 2022, (16 \ndays after the alleged incident) and September 21, 2022, visit to Sloan’s clinic make no \nmention of crepitance. \n However, more than mere crepitance was found in Claimant’s right knee.  She \nunderwent an MRI of that body part on May 3, 2023.  Dr. Dexter Witte read the MRI to \nshow: \n1. Low-grade MCL sprain. \n \n2.  Mild  sprain  of  the  proximal  fibular  collateral  ligament  without  frank \nligament discontinuity. \n \n3.  Small horizontal tear medial meniscal body. \n \n4.  Mild  articular  cartilage  loss  across  the  lateral  femoral  condyle  and \nwithin the patellofemoral joint. \n \n5.  Small  effusion  and  Baker’s  cyst  which  dissects  in  the  proximal \npopliteal fossa. \n \n\nCRAIG – H300194 \n \n11 \nOn   September   21,   2023,   Dr.   Jay   Saenz   operated   on   Claimant,   performing   an \narthroscopic  loose  body  removal  and  arthroscopic  chondroplasty  of  the  right  knee.  \nWhile his pre-operative diagnosis was that Claimant had a “[m]edial meniscus tear,” his \ninspection during surgery revealed that the medial meniscus was “intact.”  Thus, post-\nsurgery, he assigned her the diagnoses of \n1.  Patellar chondromalacia, right knee. \n2.  Multiple loose bodies, right knee. \n Respondents consulted Dr. Theodore Hronas, a board-certified radiologist, about \nthe above.  On December 4, 2024, Dr. Hronas issued the following opinion letter: \nDear Mr. Zuerker: \n \nAt your request, the following films and reports were reviewed: \nClinical records provided. \nMRI of the right knee, 04/16/2019.  Millenium MRI. \nRadiographs of the right knee, 04/25/2023.  MSK Group PC. \nMRI of the right knee, 05/03/2023.  Midsouth Imaging. \nOperative note, 09/21/2023.  Dr. Saenz. \n \nThe  clinical  history  is  of  a  work-related  accidental  injury  on  7/11/22 \ndescribed as, “unloading the carrier case machine and slipped and fell \nbackwards.”  Two  MRI  exams  of  the  right  knee  are  presented  for  review \nthat were presented prior to, and after the date of injury.  Radiographs of \nthe  right  knee  are  also  presented.  The  exams  are  a  good  quality  and \nsufficient  for  diagnostic  purposes.  I  am  a  board-certified  radiologist  with \nadditional  training  in  body and  musculoskeletal  MRI,  and  therefore  my \nfocus will be on the imaging studies and radiographs provided. \n \nThe  MRI  of  the  right  knee,  04/16/2019,  was  performed  approximately \nthree  years  prior  to  the  date  of  injury.  This  study  demonstrates  normal \npatellofemoral  articulation  with  maintenance  of  the  articular  cartilage  and \nretinacula.  There is a small joint effusion.  The quadriceps tendon, patella \ntendon, anterior cruciate ligament, posterior cruciate ligament, and medial \nand  lateral  collateral  ligaments  are  normal.  The  lateral  meniscus  is \nnormal.  There is an oblique tear involving the posterior horn of the medial \n\nCRAIG – H300194 \n \n12 \nmeniscus.  There  is  no  meniscal  root  injury.  There  is  diffuse  grade III \nchondromalacia of the medial and lateral tibiofemoral compartments. \n \nThe MRI of the right knee, 05/13/2023, was performed approximately ten \nmonths  after  the  date  of  injury.  The  exam  shows  areas  of  grade II \nchondromalacia  involving  the  articular  surfaces  of  the  patellofemoral \ncompartment.  The  medial  and  lateral  retinacula  are  intact.  There  is  a \nsmall  joint  effusion.  The  quadriceps  tendon,  patellar  tendon, anterior \ncruciate   ligament,   posterior cruciate   ligament,   and   lateral   collateral \nligaments are normal.  There [is] edema superficial to the medial collateral \nligament, characteristic of a recent grade I injury.  The lateral meniscus is \nnormal.  There is intermediate T2 signal intensity within the posterior horn \nof  the  medial  meniscus,  characteristic  of  granulation  tissue  or  myxoid \nchange  which  correspond  to  the  medial  meniscal  tear  seen  on  the  MRI \ndated  04/16/2019.  There  is  no  meniscal  root  injury.  There  is  diffuse \ngrade III chondromalacia  involving  the  medial  and  lateral tibiofemoral \ncompartments.  There  is  no  osteochondral  injury  or  evidence  of  bone \nmarrow edema. \n \nIn  review  of  the  operative  report,  09/21/2023,  the  surgeon  reported, \n“inspection  of  the  meniscus  revealed  it  was  intact,” confirming  there  was \nnot [a] meniscal tear related to the 7/11/22 event.  The surgeon report[ed] \nadditional   findings   of   a   few   small   loose   bodies   and   presence   of \nchondromalacia. \n \nIn  summary,  the  MRI  exam  of  the  right  knee  performed  prior  to  the  work \ninjury demonstrated findings of a nondisplaced tear of the posterior horn of \nthe  medial  meniscus,  presence  of  a  small  joint  effusion,  and  areas  of \nchondromalacia.  The   most   recent   MRI   exam   of   the   right   knee, \n05/03/2023,  performed  approximately ten months  after  the  date  of  injury, \ndemonstrates  the  same  medial  meniscal  tear  present  on  the  4/16/2019 \nMRI  and  presence  of  a  recent  grade I injury  of  the  MCL.  The  imaging \nappearance of the MCL injury is consistent with an injury occurring within \n3-4  months  of  the  study  and  is  not  related  to  an  injury  that  occurred ten \nmonths  prior.  Specifically,  there  are  no  findings  of  any  injury  of  the \nright  knee  that  would  be  related  to  a  work  injury  that  occurred  on \n7/11/2022. \n \nMy  findings  herein  are  stated  within  a  reasonable  degree  of  medical \ncertainty. \n \n(Emphasis added) \n\nCRAIG – H300194 \n \n13 \n The  Commission  is  authorized  to  accept  or  reject  a  medical  opinion  and  is \nauthorized  to  determine  its  medical  soundness  and  probative  value.   Poulan  Weed \nEater  v.  Marshall,  79  Ark.  App.  129,  84  S.W.3d  878  (2002); Green  Bay  Packing  v. \nBartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999).  After consideration of the evidence, \nI  credit  Dr.  Hronas on  this  matter.  In  a  nutshell,  the  evidence  does  not  show  that \nClaimant  has  objective  findings  of  a  right  knee  injury—or  of  her  other  injuries  that  she \nallegedly sustained on July 11, 2022.  Because of her failure to establish this element, \nshe  has  not proven by  a  preponderance  of  the  evidence  that  any  of  these  alleged \ninjuries are compensable.  Her claim, consequently, must fail at the outset. \nB. Remaining Issues \n Because  of the  above  findings,  the  remaining  issues—whether  Claimant  is \nentitled  to  reasonable  and  necessary  medical  treatment  of  her  alleged  compensable \ninjuries and whether she is entitled to temporary total disability benefits—are moot and \nwill not be addressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Honorable O. Milton Fine II \n       Chief Administrative Law Judge","textLength":22155,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H300194 TAMMY T. CRAIG, EMPLOYEE CLAIMANT ARROW WORKFORCE SOLUTIONS, UNINSURED EMPLOYER RESPONDENT OPINION FILED JANUARY 30, 2025 Hearing before Administrative Law Judge O. Milton Fine II on December 13, 2024, in Forrest City, St. Francis County, Arkansas. Cl...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1","denied:1"],"injuryKeywords":["knee","back","hip","cervical","sprain"],"fetchedAt":"2026-05-19T22:44:55.502Z"},{"id":"alj-H303648-2025-01-29","awccNumber":"H303648","decisionDate":"2025-01-29","decisionYear":2025,"opinionType":"alj","claimantName":"Contessa Allison","employerName":"S.E. Ark. Human Dev. Ctr","title":"ALLISON VS. S.E. ARK. HUMAN DEV. CTR. AWCC# H303648 January 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ALLISON_CONTESSA_H303648_20250129.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ALLISON_CONTESSA_H303648_20250129.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303648 \n \n \n \nCONTESSA L. ALLISON,  \nEMPLOYEE                                                   CLAIMANT \n \nS.E. ARK. HUMAN DEV. CTR.,  \nEMPLOYER                                                     RESPONDENT \n \nSTATE OF ARKANSAS/ \nPUBLIC EMPLOYEE CLAIMS DIVISION,                      \nINSURANCE CARRIER/TPA                                                                 RESPONDENT     \n                          \n \n \nOPINION FILED JANUARY 29, 2025 \n \nHearing  conducted  on  October  31,  2024,  before  the  Arkansas  Workers’  Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ)  Mike  Pickens,  in  Monticello, \nDrew County, Arkansas. \n \nThe claimant, Ms. Contessa L. Allison, of Warren, Bradley County, Arkansas, appeared pro se. \n  \nThe  respondents were represented  by  the  Honorable Charles  L.  McLemore, Public  Employee \nClaims Division (PECD), Little Rock, Pulaski County, Arkansas.  \n \n \nINTRODUCTION \n     In the prehearing order filed September 20, 2024, the parties agreed to the following \nstipulations, which they affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed at  all  relevant  times \nincluding August  26,  2021,  when  the  claimant  alleges  she  became  disabled as  a \ndirect result of alleged “compensable” gradual onset injuries to both her right and \nleft shoulders. \n \n3. The claimant’s average weekly wage (AWW) is $453.10, which is sufficient to \nentitle her to weekly compensation rates of $302.00 for temporary total disability \n(TTD), and $227.00 for permanent partial disability (PPD) benefits if the claim is \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n2 \ndeemed compensable.  \n \n4. The respondents controvert this claim in its entirety. \n \n5. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Commission’s Exhibit 1 at 1; Hearing Transcript at 6-7). Pursuant to the parties’ mutual \n \nagreement the issues litigated at the hearing were:  \n \n1. Whether this claim is barred by the applicable statute of limitations (S/L). \n \n2. If  the claim  is  not  barred  by  the  applicable  S/L,  whether  the  claimant  sustained \n“compensable”  gradual  onset  injuries  within  the  meaning  of  the  Arkansas’ \nWorkers’ Compensation Act (the Act) to her  right  and/or left  shoulder(s) that \nculminated in disability on or about August 26, 2021. \n \n3. If the claimant’s alleged injury(ies)  is (are) deemed  compensable,  the  extent  to \nwhich she is entitled to medical and indemnity benefits. \n \n4. If the claimant retains an attorney in this matter, whether her attorney is entitled to \na controverted fee on these facts. \n \n5. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. 6-7). \n     The  claimant contends  her  claim  is  not  barred  by  the  applicable  S/L.  Furthermore, she \ncontends she has sustained gradual onset “compensable” injuries to either or both her right and \nleft shoulder(s); that she is entitled to both medical and indemnity benefits; and, if she retains one, \nher attorney is entitled to a controverted fee. (Comms’n Ex. 1 at 3; T. 6-7; 18; T. 114-121; 123-\n25). \n     The  respondents contend that  on  June  8,  2023, the  claimant reported having allegedly \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n3 \nsustained a gradual  onset injury(ies) to  her right  and/or  left shoulder(s) that  she  further  alleged \nresulted in her inability to work as of August 26, 2021. The respondent contends the claimant did \nnot timely file this claim and, therefore, the applicable S/L now bars her claim for benefits. The \nrespondent contends further the claimant cannot establish she sustained either a specific incident \nor a gradual onset injury to either or both her right and/or left shoulder(s) on or before August 26, \n2021; or that she sustained any gradual onset injury whatsoever arising out of an in the course of \nher employment caused by both rapid and repetitive motion. The respondent contends the claimant \ncannot meet her burden of proof pursuant to the Act in establishing her alleged injury(ies) is (are) \nwere the result of rapid-repetitive motion and were the “major cause” of any disability or need for \ntreatment. Alternatively, the respondent contends that if the claimant’s alleged injury(ies) is (are) \ndeemed compensable they cannot be held liable for the payment of any medical and/or indemnity \nbenefits prior to the date the claimant reported her alleged injury(ies) to her employer. Finally, the \nrespondents  reserve  the  right  to  raise  additional  contentions,  or  to  modify  those  stated  herein, \npending  the  completion  of any  and  all  appropriate  and  necessary  investigation  and discovery. \n(Comms’n Ex. 1 at 3-4; T. 6-7; T. 121-22). \n     The  record  includes  the  hearing  transcript  and  any  and  all  exhibits  contained  therein  and \nattached  thereto. The  hearing  record  does not include Claimant’s Proffered Exhibit 1 since  the \nclaimant failed and/or refused to comply with the clear and specific terms of the subject prehearing \norder which required her to provide copies of this exhibit to opposing counsel at least seven (7) \ndays before the hearing date. (T. 7-13; CPX1 at 1-13).  \n \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n4 \nSTATEMENT OF THE CASE \n     The relevant facts in this case are straight-forward. The claimant, Ms. Contessa A. Allison \n(the  claimant), is 54 years  old. She  began  working  as  a  residential  assistant  with  the  Southeast \nArkansas Human Development Center (HDC) on March 3, 2020. The claimant’s regular shift \nhours  were  from  10  p.m.  to  6  a.m.,  although there  were  times  when  she  was  required  to  work \novertime to substitute for other employees who did not come into work for one reason or another. \nThe claimant’s job  duties  consisted  of,  among  other  things, working  in  the  kitchen,  as  well  as \nwashing clothes for 15 male HDC residents. (T. 18-24). In summary, the claimant attributed the \nright and left shoulder problems which are the subject of this claim to her job duties of working in \nthe  kitchen, mopping, wiping  the  counters  and,  most  notably,  to  the  physical  movements  she \nperformed  while  washing  loads  of  laundry  for  the  15  male  HDC  residents  while  loading  and \nunloading  the  washing machine  and  dryer,  folding  the  clothes,  and  related  activities.  (T.  38-45; \n52-63).      \n     The claimant initially testified she first started having problems with her shoulders in March \nof  2021  while  she  was  working  light-duty  for  a  leg  injury,  which  she  described  as  a  pulled \nhamstring.  (T.25-32; Respondents’ Exhibit 1 at 1-22). She  later  clarified  that,  specifically  with \nrespect to her shoulder(s), she began having problems around April or May of 2021. (T. 32-33). A \nmedical report dated May 28, 2021, from a clinic visit with Dr. Joe Wharton notes the claimant \nadvised him of some problems with her right shoulder which she told Dr. Wharton were from a \nprevious injury she sustained years ago. (T. 35; RX1 at 17-22). The claimant explained she did not \nrecall  Dr.  Wharton asking her  about any prior injuries. She testified she did not have  a specific \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n5 \nprior injury to her shoulder, but that she did have some “soreness” in her shoulder in 2015 which \nshe attributed to her prior job duties of “a lot of repetition, stirring, stirring” working in the cafeteria \nat the University of Arkansas at Monticello (UAM). (T. 34-38). \n     While the claimant testified her employer was aware of her alleged work-related shoulder \nproblems, the respondents offered the written statements of two (2) HDC witnesses, Ms. Sandra \nHarris  (statement  dated  June  14,  2023)  and  Ms.  Casondra  Jones,  the  HDC  assistant  personnel \nmanager (statement dated June 15, 2023), contradicting the claimant’s testimony in this  regard. \n(T.  67-72; Respondents’ Exhibit 2 at 10-11). The  claimant  was  terminated  from  HDC  effective \nSeptember 26, 2021, for refusal to “float” (rotate job duties) and other reasons which are set forth \nin a Department of Human Services (DHS) Notice of Disciplinary Action form dated September \n26,  2021.  (RX2  at  7-8). This disciplinary form states the claimant had “displayed a consistent \npattern of failure to comply with workplace policies...”; had “received multiple verbal warnings, \nhas been on Probation...”; and had been given “multiple policy re-trainings  by  her  supervisor \nregarding the same policy violations.” (RX2 at 7). The claimant did not file her Form  AR-C \nalleging  the  subject  gradual  onset  right  and  left  shoulder  injuries  until  June  7,  2023,  almost  21 \nmonths after the date HDC terminated her on September 26, 2021. (RX2 at 9).    \n     The claimant did not introduce any medical records into evidence in support of her alleged \nright and left shoulder gradual onset  compensable injury claim. The respondents introduced the \nabove-cited  medical  exhibit,  RX1.  These  medical  records  reflect  the  claimant  first  mentioned \nproblems with her right shoulder on May 28, 2021, which she attributed to a previous injury. (RX1 \nat  17-22).  X-rays  taken  of  the  claimant’s  right  shoulder  on  May  28,  2021,  revealed  mild \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n6 \ndegenerative  spurring  at  the  acromioclavicular  (AC)  joint  and  acromion,  and  no  acute  osseous \nabnormality.  (RX1  at  23). Dr. Wharton’s clinic/progress note of October 11, 2021, notes the \nclaimant’s complaints of right shoulder pain of “unspecified chronicity.” (RX1 at 24-26). X-rays \ntaken on the same date revealed no acute findings, and mild degenerative changes of the AC joint. \n(RX1 at 27). The claimant underwent a steroid injection into her right shoulder on December 9, \n2021. (RX1 at 28-31). \n     The  first  mention  of  left  shoulder  pain  in  the  medical  records  is  reflected  in  a  clinic  note \ndated July 21, 2022, which goes on to reveal the claimant had been experiencing these symptoms \nfor  seven  (7)  to  eight  (8)  months.  (RX1  at  32-25).  The  last  medical  record  in  RX1 is an  X-ray \nreport of the claimant’s right ankle which notes some swelling and no acute fracture; and X-ray of \nthe claimant’s left shoulder which the radiologist interpreted as, “Unremarkable...No acute osseus \nabnormality.” (RX1 at 36-37).              \nDISCUSSION \nThe Burden of Proof, Generally \n      When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2025 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n9-704(c)(3) (2025 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n7 \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  her burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2025 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987). \n      All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra. \n      The  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible given  the  totality  of  the  credible  evidence  of  record. Minnesota Mining & Mfg’ing v. \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n8 \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n     In  a  case  such  as  this  one  where  the  claimant  is  pro  se, the law  requires  both  the ALJ  and \nCommission to hold pro se claimants to the same standards as those represented by counsel. Moon \nv.  Holloway,  353  Ark.  520,  110  S.W.3d  250  (2003). Moreover,  ALJ,  the  Commission,  and  the \ncourts must strictly construe Ark. Code Ann. § 11-9-702. Sykes v. Williams, 373 Ark. 236, 283 \nS.W.3d 209 (2008).  \n \nStatute of Limitations (S/L) \n       The controlling statute of limitations (S/L) is set forth in Ark. Code Ann. §11-9-702(a)(1) \n(2025 Lexis Repl.) which mandates: \nA  claim  for  compensation  for  disability  on  account  of  an  injury, \nother than an occupational disease and occupational infection, shall \nbe barred unless filed with the Workers’ Compensation Commission \nwithin (2) years from the date of the compensable injury. If during \nthe  two-year  period  following  the  filing  of  the  claim  the  claimant \nreceives  no  weekly  benefit  compensation  and  receives  no  medical \ntreatment resulting from the alleged injury, the claim shall be barred \nthereafter. \n \n     In Minnesota Mining & Mfg’ing v. Baker, 337 Ark. 94, 982 S.W.2d 11 (1999) and Pina v. \nWal-Mart Stores, Inc., 91 Ark. App 77, 208 S.W.3d 236 (Ark. App. 2005), our state supreme court \nand court of appeals, respectively, held the S/L for gradual onset, scheduled injuries begin to run \nwhen the injury first becomes apparent to the claimant. But in this case the claimant is alleging \nwork-related injuries to both her right and left shoulders and, of course, a shoulder injury is not a \nscheduled injury, it is an injury to the body-as-a-whole (BAW). Consequently, in the case at bar \nthe general S/L rule relating to an Arkansas workers’ compensation injury applies: i.e.,  the  S/L \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n9 \ndoes not begin to run until the true extent of the injury manifests itself and results in an incapacity \nto earn wages sufficient to give rise to a claim for compensation. Hall’s Cleaners v. Wortham, 311 \nArk. 103, 842 S.W.2d 7 (1992). \n     Based on the aforementioned law as applied to the facts of this case, I find this claim is not \nbarred by the applicable S/L. The preponderance  of the credible evidence  of record reveals that \nwhile the claimant’s shoulder problems manifested in April and May of 2021, and that she \napparently attributed her shoulder symptoms to her job duties at HDC at that time, the shoulder \nproblems did not result in disability until August 26 (or 28), 2021. (See, T. 125-26). The claimant \nsigned the Form AR-C alleging the subject gradual onset right and left shoulder injuries on June \n6,  2023,  which  the  Commission  received  on  June  7,  2023. (RX 2  at 9). Of  course,  it  is  readily \napparent the Form AR-C was prepared, signed, and filed within the two (2)-year S/L applicable to \nthe facts of this case.       \n   \nGradual Onset Compensable Injuries \n     In order meet the Act’s requirements of a gradual onset compensable injury a claimant must \nprove by a preponderance of the evidence that the injury: (1) arose out of and in the course of her \nemployment;  (2)  caused  internal  or  external  physical  harm  to  the  body  that  required  medical \nservices or resulted in disability or death; (3) was caused by rapid-repetitive motion; and (4) was \nthe  “major  cause”  of  the  disability  or  need  for  treatment. Ark.  Code  Ann. Section  11-9-\n102(4)(A)(ii)(a) (2025 Lexis Repl.); Lay v. United Parcel Service, Inc., 58 Ark. App. 35, 40, 944 \nS.W.2d 867, 870 (Ark. App. 1997); Carlat v. Ark. Hwy. & Trans. Dep’t, 2018 Ark. App. 157, 546 \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n10 \nS.W.3d 514 (Ark. App. 2018). An alleged gradual onset injury caused by rapid repetitive motion \nis compensable only if the alleged compensable injury is the “major cause” of the disability or need \nfor treatment. Ark. Code Ann. § 11-9-102(4)(E)(ii); Medlin v. Wal-Mart Stores, Inc., 64 Ark. App. \n17, 977 S.W.2d 239 (1998). “Major cause” means greater than fifty percent (50%) of the cause. \nArk. Code Ann. § 11-9-102(4)(E)(ii); Lowe's Home Ctrs., Inc. v. Pope, 2019 Ark. App. 24, 482 \nS.W.3d 723 (Ark. App. 2016). \n     The test for determining whether an injury is caused by rapid repetitive motion is two (2)-\npronged: (1) the task must be repetitive, and (2) the repetitive motion must be rapid. Malone v. \nTexarkana  Public  Schools,  333  Ark.  343,  969  S.W.2d  644  (1998).  Multiple  tasks  involving \ndifferent  movements  can  be  considered  together to  satisfy  the  “repetitive  element”  of  rapid \nrepetitive motion. Id. \n     Just as in the case of any other  compensable injury, an  alleged gradual onset compensable \ninjury must be established by medical evidence supported by objective findings.   Ark. Code Ann. \n§ 11-9-102(4)(D); Ark. Code Ann. § 11-9-102(16). “Objective findings” are defined as findings \nwhich cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A); \nLong v. Wal-Mart Stores, Inc., 98 Ark. App. 70, at 80 250 S.W.3d 263, at 272 (Ark. App. 2007). \nObjective  findings  specifically  exclude  such  subjective  complaints  or  findings  as  pain,  straight-\nleg-raising  tests,  and  range-of-motion  (ROM)  tests  since  they  all  are  subjective  in  nature  and \nsubject to the claimant’s voluntary control or manipulation. See, Burks  v.  RIC,  Inc.,  2010  Ark. \nApp. 862 (Ark. App. 2010).  \n     Both our state supreme court and court of appeals have held that even where a claimant had \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n11 \nseveral  job  duties  which  required various rapid  motions  repeated  at  differing  time  intervals  and \nseparated  by  periods  of  several  minutes, this does not meet the Act’s rapid-repetitive  motion \nrequirement. See, Lay v. UPS, supra, (UPS driver who briefly performed several different rapid \nmotions repeated  at  differing  intervals  separated  by  several  minutes failed  to  meet  the  rapid-\nrepetitive motion requirement); Pulaski County Special School District (PCSSD), v. Stewart, 2010 \nArk. App. 487, 375 S.W.3d 758 (Ark. App. 2010) (the court reversed the Commission and found \nthat a school bus driver who opened and closed the bus door an average of five (5) times per hour \ndid  not  meet  the  rapid-repetitive  motion  requirement);  and Carlat,  supra, (claimant’s use of a \nweed-eater as part of his job duties did not constitute rapid-repetitive motion). \n     The overwhelming preponderance of the totality of the credible evidence of record in this \nclaim (see, the “Statement of the Case”, supra) conclusively reveals the claimant has failed to meet \nher  burden  of proof  in  demonstrating  that  her  HDC  job  duties were  either  rapid  or  repetitive  in \nnature. Indeed, there is no other reasonable conclusion that may be reached on these facts. There \nsimply exists no evidence in the record with respect to the claimant’s job duties – and specifically \nrelating to her job duties of working in the HDC kitchen, mopping, and washing clothes, etc. – that \nmay  reasonably  be  characterized  as  either  rapid  or  repetitive  as  defined  by  the  Act  and  as \ninterpreted by the applicable case law. (T. 18-113; RX1 at 1-37; RX2 at 1-13).  \n     Likewise, the medical evidence in this case is particularly revealing and demonstrates by the \noverwhelming preponderance of the evidence that, even if the claimant had met the Act’s rapid-\nrepetitive requirement, it cannot be reasonably held that her HDC job duties were the “major \ncause” of her shoulder problems. The X-rays of both the claimant’s right and left shoulders were \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n12 \nunremarkable and revealed only mild degenerative changes at most, degenerative changes that are \nnot consistent with a work-related injury, either specific or gradual onset. The objective medical \nfindings  the  X-rays  reveal is not  only – in  the  words  of  the  interpreting  radiologists – \n“unremarkable” and/or represent only “mild degenerative” changes, they are consistent with the \nnormal aging process  and lack any evidence of an injury, work-related or otherwise, gradual or \nspecific. (RX2 at 1-37).   \n     Finally,  it  must  be  noted  that  it  is  rather  incredible, inexplicable,  troublesome  and \ndisappointing the claimant would wait almost two (2) years after she was fired from HDC to file a \nworkers’ compensation claim alleging she had sustained work-related injuries. The very late filing \nof the claim; the unrebutted credible facts contained in the HDC termination report relating to the \nclaimant’s history of poor performance/poor attitude and disciplinary problems that were resistant \nto all apparent attempts at correction and/or rehabilitation; as well as the claimant’s demeanor and \nother relevant communication factors while testifying on both direct and cross-examination at the \nhearing are, indeed, troublesome and disappointing, and do not reflect well on her credibility. (T. \n18-113; RX2 at 1-13).  \n     Therefore, for all the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction of this claim.  \n2. The  stipulations  contained  in  the  prehearing  order  filed  September  20,  2024, \nwhich  the  parties  affirmed  on  the  record  at  the  hearing,  hereby  are  accepted  as \nfacts.  \n \n\nContessa L. Allison, AWCC No. H303648 \n \n \n \n13 \n3. This claim is not barred by the applicable S/L. \n \n4. The  claimant  has failed  to  meet  her burden  of  proof  pursuant  to  the  Act  in \ndemonstrating she sustained compensable gradual onset injuries to either her left \nand/or right shoulder(s).  \n \n5. The claimant has failed to meet her burden of proof in demonstrating her job duties \nat HDC constitute either rapid-repetitive motion, and/or that they were the “major \ncause” of her right and left shoulder pain/problems. See, e.g., Lay, PCSSD, and \nCarlat, supra.    \n \n     WHEREFORE,  for  all  the  aforementioned  reasons, this  claim  hereby  is  denied  and \ndismissed subject to the claimant’s statutory appeal rights. \n     IT IS SO ORDERED. \n                           \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":23844,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303648 CONTESSA L. ALLISON, EMPLOYEE CLAIMANT S.E. ARK. HUMAN DEV. CTR., EMPLOYER RESPONDENT STATE OF ARKANSAS/ PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 29, 2025 Hearing conducted on October 31, 2024, before t...","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:1","denied:2"],"injuryKeywords":["shoulder","repetitive","ankle","fracture"],"fetchedAt":"2026-05-19T22:44:51.257Z"},{"id":"alj-H405400-2025-01-29","awccNumber":"H405400","decisionDate":"2025-01-29","decisionYear":2025,"opinionType":"alj","claimantName":"Jeffrey Martinez","employerName":"1st Employment Staffing","title":"MARTINEZ VS. 1st EMPLOYMENT STAFFING AWCC# H405400 January 29, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MARTINEZ_JEFFREY_H405400_20250129.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARTINEZ_JEFFREY_H405400_20250129.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H405400 \n \nJEFFREY MARTINEZ, Employee                                                                   CLAIMANT \n \n1\nst\n EMPLOYMENT STAFFING, Employer                                                RESPONDENT \n \nZURICH AMERICAN INS. CO., Carrier                                                    RESPONDENT                                                \n \n \n \n OPINION FILED JANUARY 29, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by RICK BEHRING, JR., Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January 13, 2025, the above captioned claim came on for hearing at Fort Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on October  9,  2024 and  a  pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The  employee/employer/carrier  relationship  existed  among  the  parties  on \nAugust 6, 2024. \n 3.   Respondents have controverted this claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n\nMartinez – H405400 \n \n2 \n \n1. Compensability of injury to claimant’s right wrist/hand on August 6, 2024. \n2. Related medical. \n3. Temporary total disability benefits from August 6, 2024 through a date yet to  \nbe determined. \n4. Attorney’s fee. \n5. Shippers’ defense. \nAt  the  time  of  the  hearing the  claimant  reserved  the  issue  of  his  entitlement to \ntemporary  total  disability  benefits.    In  addition,  the  respondent  withdrew  the  Shippers’ \ndefense as an issue. \nThe claimant contends  he sustained a compensable injury on August 6, 2024 and \nis entitled to medical treatment.  Claimant reserves all other issues. \nThe respondents contend the Arkansas Workers’ Compensation Commission has \nexclusive jurisdiction over this claim.  The respondents have denied and controverted this \nclaim in its entirety.  The claimant cannot meet his burden of proving by a compensable \ninjury  as  a  result  of  a  specific  incident  while  performing  employment  services  with  the \nrespondent  employer  on  August  6,  2024.    The  claimant  underwent  a  drug  screen  and \ntested  positive  for  an  illegal  drug – marijuana.    In  the  alternative,  the  claimant  testified \npositive for a prescription drug used in contravention with the physician’s orders is a safety \nsensitive position.  The claimant cannot overcome his presumption that the accident was \nnot substantially occasioned by the use of marijuana and, therefore, the claimant is not \nentitled to any benefits.  In the alternative, the claimant was not providing employment \nservices when performing a prohibited act at the time of the alleged incident. \n From a review of the record as a whole, to include medical reports, documents, \n\nMartinez – H405400 \n \n3 \n \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non October 9, 2024 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.     Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he \nsuffered a compensable injury to his right wrist and hand on August 6, 2024.  Specifically, \nclaimant  failed  to  rebut  the  statutory  presumption  that  his  injury  was  substantially \noccasioned by the use of illegal drugs (marijuana). \n \n FACTUAL BACKGROUND \n The claimant is a 21-year-old man who became employed by the respondent on \nJuly  30,  2024.    Shortly  thereafter,  claimant  was  assigned  to  work  at  Hickory  Springs \nManufacturing (hereinafter known as “HSM”) as a welder’s helper.  At HSM, claimant was \nplaced in a position primarily operating a grinder and a drill press.  Claimant’s training on \nthe  grinder  and  drill  press  was  performed  by  Genoveva  Quintanilla.    According  to  the \ntestimony of Reyes Ruiz, Jr., the respondent’s production supervisor:  “He [claimant] was \nto learn how to operate the drill press machinery to provide a process called coping which \ntook a notch out of the end of a tube so it could be processed further.”  \n After undergoing an unknown number of days of training, the claimant was injured \non August 6, 2024.  On that date the claimant was operating the drill press when the glove \n\nMartinez – H405400 \n \n4 \n \nof his right hand got caught in the drill.  Claimant was taken to the emergency room at \nBaptist Health and was diagnosed with fractures to his right hand and fingers.  Claimant \nunderwent  a  surgical  repair  on  August  6,  2024, which  included  debridement  of  open \nfractures, pin stabilization of multiple fractures, carpal tunnel decompression, and hand \nfasiotomies.  Later, claimant underwent a skin graft procedure on August 21, 2024, and \nunderwent a pin removal procedure on October 24, 2024.   \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis  right  hand  on  August  6,  2024.    He  seeks  payment  of  related  medical  expenses \nassociated with that injury. \n \nADJUDICATION \n Claimant contends  that  he  suffered  a  compensable  injury  to  his  right  hand  on \nAugust 6, 2024, when his hand got caught in a drill press resulting in various injuries to \nthe right hand.  While claimant was in the hospital following his accident, he was given a \nurine  drug  screen  test  by  Mashayla  Martin,  the  Operations  Manager  for respondent.  \nMartin testified that the hospital declined to perform a drug screen test, but she was given \npermission to visit claimant in the hospital and claimant agreed to give a statement and \nundergo a drug screen.  Claimant gave a sample which returned positive for marijuana \nmetabolites.  Based upon the positive drug screen, respondent contends that claimant’s \nclaim  for  compensation  benefits  is  barred  by  the  provisions  set  forth  in  A.C.A.  §11-9-\n102(4)(B)(iv) which provides: \n(a) Injury where the accident was substantially occasioned \nby the use of alcohol, illegal drugs, or prescription drugs \nused in contravention of physician’s orders. \n\nMartinez – H405400 \n \n5 \n \n \n(b)  The presence of alcohol, illegal drugs, or prescription \ndrugs used in contravention of a physician’s orders shall \ncreate a rebuttable presumption that the injury or accident \nwas substantially occasioned by the use of alcohol, illegal \ndrugs,  or prescription drugs used in contravention of  \nof physician’s orders. \n \n(c)  Every employee is deemed by his or her performance \nof services to have impliedly consented to reasonable and \nresponsible testing by properly trained medical or law \nenforcement personnel for the presence of any of the  \naforementioned substances in the employee’s body. \n \n(d)  An employee shall not be entitled to compensation  \nunless it is proved by a preponderance of the evidence \nthat the alcohol, illegal drugs, or prescription drugs utilized \nin contravention of the physician’s orders did not substantially \noccasion the injury or accident. \n \n  \n As noted,  claimant  underwent  a  drug  screen  which  was  positive  for  marijuana.  \nThis creates a rebuttable presumption that the injury was substantially occasioned by the \nuse of illegal drugs.  Accordingly, claimant has the burden of proving by a preponderance \nof the evidence that the illegal drugs did not substantially occasion his injury or accident.   \n Claimant testified that he had not smoked marijuana for about a month prior to his \naccident on August 6, 2024.  A claimant’s testimony is never considered uncontroverted, \nand  his  own  self-serving  testimony  regarding  the  nature  and  extent  of  drug  use  is \ninsufficient to overcome the presumption.  Nix v. Wilson World Hotel, 46 Ark. App. 303, \n879 S.W. 2d 457 (1994); Ester v. National Home Centers, Inc., 61 Ark. App. 91, 967 S.W. \n2d 565 (1998).  At the hearing, claimant also offered the testimony of his mother, Mayra \nFigueroa.    Figueroa  testified  that  claimant  lives  with  her  and  she  would  normally see \nclaimant before he went to work.  She testified that she recalled seeing claimant on the \n\nMartinez – H405400 \n \n6 \n \nmorning of August 6 and claimant appeared to be acting normal on that date.  Figueroa \nalso testified that she did not know what claimant did after he left the house that morning, \nand that although she had not seen claimant use marijuana, she knew that he did use it. \n Claimant has offered various explanations for why his accident occurred.  At one \npoint claimant testified that the gloves he was wearing on the day of the accident were \ntoo large and did not properly fit.  Claimant testified that respondent only had one size of \nglove  available.    Claimant’s  testimony  was  contradicted  by  the  testimony  of  Ruiz  who \ntestified that  respondent  provides  various  work  gloves  in  various  styles  and  sizes.    He \ntestified that when claimant initially came to HSM he was given gloves and they appeared \nto fit.  He further testified that claimant never came to him complaining about the fit of his \ngloves  and  that  normally  employees  would  get  a  fresh  pair  of  gloves  each  morning. \nLikewise, Genoveva testified that HSM provided gloves in various sizes. \nClaimant  also  testified  that  he  did  not  recall  getting  any  paperwork  about  the \nhazards to watch for when performing his job on the drill press and he did not recall Ruiz \ninforming  him  that  he  needed  to  shut  down  the  drill  press  any  time  he  was  handling \nsomething  involving  the  drill  press.   However, Ruiz  testified  that  when  claimant  initially \narrived at HSM he went over a Job Safety Analysis which with respect to the drill press \noperation noted that hazards included rotating equipment with metal shavings potentially \ngetting in the hands or eyes.  The analysis also indicated that employees were to wear \nall  proper  personal  protection equipment  and  to  not  wear  any  loose  clothing  while \noperating the drill press that could become entangled and pull  you into the machine.  Ruiz \ntestified  that  claimant  never  complained  about  the  training  he  was  receiving  or  the \nequipment that he was using. \n\nMartinez – H405400 \n \n7 \n \n Claimant also testified that Genoveva did not always turn off the drill press while \nmaking adjustments.  However, Genoveva testified that she always turned the machine \noff when something needed to be done and that she trained claimant to do the same.   \n  Q Why is it important to shut the machine off? \n \n  A You have to turn it off every time before you put your \n  hand in there because it is rotating. \n \n      *** \n  Q Did you ever put your hands near the drill when it was \n  rotating? \n \n  A No.  While it is rotating, no.  Never. \n \n  Q Did you always turn it off if you needed to change a  \n  part or manipulate the pipe? \n \n  A Yes. \n      *** \n  Q Did you train Mr. Martinez to do the same? \n \n  A Yes.  I would tell him never, never, never.  Always \n  turn it off. \n \n      *** \n   And I would tell him every time you move the mold, \n  you have to turn it off.  Every time you put your hands in there, \n  you have to turn it off, always.  And all the indications, what \n  the process was like, you always have to turn the machine \n  off in order to move something. \n \n \n Claimant also acknowledged that at his deposition he testified that he believed that \nGenoveva had her hand on the drill press handle at the time of the accident.  Likewise, \nclaimant indicated at the hearing that he believed that Genoveva had her hand on the drill \npress handle while it was running at the time of the accident.   \n  Q So as you were there with Genoveva, what  \n  happened? \n\nMartinez – H405400 \n \n8 \n \n \n  A I was there with Genoveva and the drill press  \n  was running and as the drill press was running, I \n  believe she had her hand on the lever, which in order - - \n  I didn’t - - I wasn’t able to understand that she would \n  be operating it or if she wanted me to point out to her \n  if I should be operating it or not. \n \n   And I was simply pointing out to her that I had \n  been fastening it properly and my glove had got caught \n  as I was in the action of explaining to her that I had done \n  it as she had asked. \n \n \n Again, Genoveva contradicted claimant’s testimony.  Genoveva testified that she \nwas not working on the drill press machine with claimant at the time of the accident, but \ninstead was operating a different machine which was next to the drill press.   \n  Q What were you doing when Mr. Martinez had his \n  accident? \n \n  A I was operating a different machine.  I was working \n  on a different machine.  We were each on another machine. \n \n  Q What machine were you operating? \n \n  A Well, there is three machines there and the three \n  machines are used depending on the mold we are going \n  to make.  You kind of fit them on each machine.  I was on \n  the second one, the middle one.  He was on the first one \n  where the accident happened.   \n \n   Well, and I headed over there.  The details of the \n  accident, I heard him scream and then I turned it off. \n \n  Q Did you see the accident happen? \n \n  A Exactly when it initiated, no.  When he screamed, I \n  turned it off. \n \n \n Genoveva  specifically  testified  that  she  was  not  touching  the  drill  press  when \n\nMartinez – H405400 \n \n9 \n \nclaimant had his accident, and that she was not rushing claimant to perform his work at \nthe time of the accident. \n Finally, claimant acknowledged that the drill press machine was still running when \nhe put his hand by the drill and that was contrary to his training and resulted in the injury.   \n  Q In the hundreds of times that you did the drill press, \n  you were trained that you were supposed to shut the drill \n  press off before you do anything with the pipe? \n \n  A Correct. \n \n  Q All right.  And you had observed your trainer do that, \n  correct, to turn off the machine before she adjusted the pipe? \n \n  A As of when? \n \n  Q Hundreds of times. \n \n  A Correct. \n \n  Q All right.  And on August 6\nth\n, though, the machine was \n  still running when you put your hand by the drill; is that correct? \n \n  A Correct. \n \n  Q And that is contrary to how you had been trained; is that \n  correct?   \n \n  A Correct. \n \n  Q And that is what ultimately caused you to have an injury; \n  isn’t that correct? \n \n  A Yes. \n \n  Q Regardless of what size gloves  you had on, had the  \n  machine been shut off when you put your hand in there,  you \n  wouldn’t have had an accident; is that correct? \n \n  A Correct. \n          *** \n  Q To be fair, Mr. Martinez, it sounds like everything \n\nMartinez – H405400 \n \n10 \n \n  happened fast.  And if I am appreciating what you are \n  saying here, you don’t really have a clear recollection \n  of exactly what happened when you had your accident; \n  do you? \n \n  A Various parts are a little hazy. \n \n  Q Okay.  But we do know this:  before August 6\nth\n, \n  you knew that you had to shut that machine off before \n  you did anything with the pipe; correct? \n \n  A Correct. \n \n  Q And we know that because it is dangerous to \n  leave it running when you put your hand by it; isn’t \n  that right? \n \n  A Yes. \n    \n      *** \n  Q And that is what Eva also trained you to do; is \n  that correct? \n \n  A Yes. \n \n \n Thus, at the time of his injury, claimant had been trained by Genoveva to turn the \nmachine off before making any modifications or corrections.  Claimant has acknowledged \nthat leaving the machine running while making those corrections is contrary to his training.  \nThere  is  no  credible  evidence  that  the  machine  malfunctioned  or  that  Genoveva \naccidently  operated  the  drill  press  while  claimant  was  making  an  adjustment.    To  the \ncontrary, Genoveva was operating another machine and did not have her hands on the \ndrill press claimant was operating at the time of his accident.  Claimant’s modification or \ncorrection of the drill press while it was still running was contrary to his training.   \n Based upon the foregoing evidence, I find that claimant has failed to prove by a \npreponderance of the evidence that his use of illegal drugs did not substantially occasion \n\nMartinez – H405400 \n \n11 \n \nhis injury or accident on August 6, 2024.  On that date claimant was making corrections \nto the drill press while he left the drill press running and placed his hand in close proximity \nto the drill which resulted in his injury.  This was contrary to claimant’s training as he has \nso   acknowledged.      Accordingly, I   find   that   claimant   has   failed   to   prove   by   a \npreponderance of the evidence that he suffered a compensable injury to his right hand \non August 6, 2024.   \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that he suffered \na compensable injury while working for respondent at HSM on August 6, 2024.  Therefore, \nhis claim for compensation benefits is hereby denied and dismissed. \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $820.25. \n IT IS SO ORDERED. \n \n       ________________________________ \n        GREGORY K. STEWART \n        ADMINISTRATIVE LAW JUDGE","textLength":17976,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H405400 JEFFREY MARTINEZ, Employee CLAIMANT 1 st EMPLOYMENT STAFFING, Employer RESPONDENT ZURICH AMERICAN INS. CO., Carrier RESPONDENT OPINION FILED JANUARY 29, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County,...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["wrist","carpal tunnel"],"fetchedAt":"2026-05-19T22:44:53.402Z"},{"id":"alj-H208338-2025-01-28","awccNumber":"H208338","decisionDate":"2025-01-28","decisionYear":2025,"opinionType":"alj","claimantName":"Christine Bell","employerName":"Fianna Hills Nursing Rehab Ctr","title":"BELL VS. FIANNA HILLS NURSING REHAB CTR. AWCC# H208338 January 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BELL_CHRISTINE_H208338_20250128.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BELL_CHRISTINE_H208338_20250128.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H208338 \n \nCHRISTINE BELL, Employee CLAIMANT \n \nFIANNA HILLS NURSING REHAB CTR., Employer RESPONDENT \n \nAMTRUST NORTH AMERICA, Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 28, 2025 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents   represented   by WILLIAM   C.   FRYE,   Attorney   at   Law, North   Little   Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On October  31,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on April 15, 2024, and a Pre-hearing Order \nwas filed on April 23, 2024.   A copy of the Pre-hearing Order has been  marked Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The   relationship   of   employee-employer-carrier   existed   between   the   parties on \nDecember 30, 2020. \n 3. The respondents have controverted this claim in its entirety. \n\nBell – H208338 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $232.00  for  temporary  total  disability  benefits  and  $174.00  for  permanent  partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  her  neck  and  low  back  on  or \nabout December 30, 2020. \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for  her  compensable  neck  and  low \nback injuries. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  March  31, \n2021, to a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“1. The above listed proposed stipulations. \n \n2. The Claimant was injured on December 30, 2020, when she was \nhelping  another  staff  member  lift  a  patient  off  the  floor  and  felt  a \npop in her back. \n \nThe   Claimant   was   seen   at   Baptist   Health   Medical   Center \nemergency  room  with  complaints  of  right  low  back  pain.  The \nClaimant was diagnosed with back pain and to follow-up with her \nprimary care physician in five (5) days. \n \nOn  April  13,  2021,  the  Claimant  was  treated  at  Baptist  Health \nPhysical  Therapy  for  continued  low  back  and  neck  pain.  She \nreceived therapy, manipulation and evaluations. \n \n3.  The  Claimant  reserves  the  right  to  amend  and  supplement  her \ncontentions after additional discovery has been completed.” \n \n The respondents’ contentions are as follows: \n\nBell – H208338 \n \n-3- \n“The  Claimant  initially  filed  a  claim  alleging  an  injury  date  of \nDecember  6,  2020.  She  has  now amended  it  to  say  December  30, \n2020. A copy of the assignment sheet is attached and the Claimant \ndid  not  work  on  December  30,  2020.  The  Claimant  went  to  the \ndoctor at Baptist on December 7, 2020 and underwent an MRI that \nshowed  stenosis.  She  was  referred  on  December  18,  2020  for \ninjections  and  given  medications.  Her  history  to  the  pain  doctor \nwas   that   her   back   pain   started   6   years   ago   and   had   gotten \nprogressively  worse.  In  the  last  year,  it  had  become  severe  and \nconservative treatment had not worked. No history was given of a \nlow  back  injury  at  work.  On  the  neck,  she  reported  in  March  of \n2021,  she  had  8  months  of  bilateral  spasticity  of  her  arm  and \nhands.  The  history  was  she  injured  her  low  back  and  neck  in  a  4-\nwheeler accident. She reported at least 3 years of pain when asked \nwhat   caused   her   problems   at   Fort   Neuro.   She   was   seen   on \nSeptember  1,  2021  at  Baptist  and  gave  a  history  of  the  neck  pain \nfor several years. No mention of a December 30, 2020 injury.” \n \n The  claimant  in  this  matter  is  a 44-year-old  female who  alleges  to  have  sustained \ncompensable injuries to her neck and low back on or about December 30, 2020. At the hearing in \nthis matter the claimant testified that the injuries she is alleging occurred on December 29, 2020, \nbut  her  first  medical  treatment  occurred  on  December  30,  2020.  The  claimant  gave  direct \nexamination testimony about the incident she alleges as follows: \nQ Okay.  Would  you  tell  the  Court  briefly  what  you  were \ndoing  that  day  and  how  you  came  to  injure  your  back  and  your \nneck. \n \nA My charge nurse came and got me. A resident had slid out \nof  bed  onto  the  fall  mat  and  she  wanted  me  to  help  him,  help  her \nget  the  gentleman  out  of  the  floor  and  back  onto  the  bed.  We  had \ntried  picking  him  up,  which  is – Aubreye  Adams  was  my  charge \nnurse at the time, which she was the lady that came and got me. \n \n We  had  tried  to  pick  the  gentleman  up.  Could  not.  Put  the \ngait  belt  around  him.  We  dug  down  real  deep  and  finally  got  him \nup and about that time I felt a pop in my lower back. \n \nQ Okay.  Now,  specifically,  if  you  were  describing  this  to \nsomeone who couldn’t see, where would you describe where you \nfelt a pop in your back? \n\nBell – H208338 \n \n-4- \n \nA I would say right above your butt crack. \n \nQ Okay. \n \nA That lower area. \n \nQ Okay.  Did  it  tend  to  be  more  on  the  left  side  right  above \nyour butt crack or to the right side or in the middle? \n \nA In the middle. \n \nQ In the middle? \n \nA Yes. \n \n The  claimant  then  testified  that  her  charge  nurse  sent  her  to  report  her  injury  to  Kim \nButler, who is in charge of the respondent’s human resources department. Following is the \nclaimant’s testimony about her interaction with Ms. Butler on December 29, 2020: \nQ Okay.  All  right.  And  just  take  us  through  that  notification, \nthat conversation. \n \nA I told her that I had hurt myself. She had told me to have a \nseat. She had left the facility. Went out back. She had come back in \nand told me that I – \n \nQ Let me stop you there. So you had a seat. Were you in her \noffice? \n \nA No. I was outside of her office when I had spoke to her. \n \nQ In a chair? \n \nA Yes. \n \nQ Okay. And she left her office? \n \nA Yes. \n \nQ Did you see where she went? \n \nA Down the hall. \n\nBell – H208338 \n \n-5- \n \nQ Okay. About approximately how long was she gone? \n \nA About 10, 15 minutes. \n \nQ Okay. Did she come back? \n \nA Yes. \n \nQ Okay. And what conversation ensued after she returned? \n \nA She  told  me  I  needed  to  get  up  and  get  back  on  the  floor \nand help, that we were shorthanded. \n \nQ Were you shorthanded? \n \nA Yes. \n \nQ Okay. Were you asked to fill out any paperwork? \n \nA No. \n \nQ Were you asked to fill out a report? \n \nA No. \n \nQ Were you asked to sign a form? \n \nA No. \n \nQ Okay. Did she ask about your condition? \n \nA No. \n \nQ Okay.  So  her  only  statement  to  you  was,  “We  are \nshorthanded. I need you back out of the floor.”? \n \nA Yes. \n \nQ Did you do that? \n \nA Yes. \n \nQ Okay. So did you finish your shift that day? \n \n\nBell – H208338 \n \n-6- \nA Yes, I did. \n \n Ms.  Butler  was  called  as  a  witness  by  the  respondent.  Following  is  her  testimony  about \nthe notification of the claimant’s alleged injuries: \nQ All right. You heard her testify today that on December 29\nth\n \nshe reported an injury to – first of all, were you there that day? \n \nA Yes. \n \nQ Do you have an office? \n \nA Yes. \n \nQ  Was any report of an injury done to you that day? \n \nA No. \n \nQ Did you refuse to fill out any paperwork? \n \nA No, I did not refuse. \n \nQ  Now, she continued to work for three months. At any time \nduring those three months did you see her? \n \nA Yes. \n \nQ How often? \n \nA Usually any day that was Monday through Friday and if she \nworked and she was there. \n \nQ At  any  time  during  those  three  months,  did  she  indicate  to \nyou that she had injured herself on December 29\nth\n? \n \nA No. \n \nQ When  was  the  first  time  that  you  were  notified  that  there \nwas a claim being made due to any injury? \n \nA I was not notified. \n \nQ Okay. Well, that’s a poorly-worded  question  on  my  part. \nWhen did you first know that there was a claim being made? \n\nBell – H208338 \n \n-7- \n \nA I was not aware. \n \nQ Okay.  In  your  deposition  you  indicated  that  you  were \nnotified  by  my  office.  That  is  why  I  am  saying  it  was  poorly \nworded. \n \nA Oh, by your office, yes. \n \nQ I am not talking about by the Claimant. I am talking about \nanybody. \n \nA By you, yes. \n \n The claimant was seen at Baptist Health Family Clinic South on December 30, 2020, by \nAPRN Julie Rowland. Following is a portion of that medical record: \nReason for Visit: \nBack Pain \n40  year  old  female  patient  in  today  with  complaint  of  increased \nlow  back  pain.  States  she  was  at  work  yesterday  and  tried,  with \nanother CNA, to pick a large man up off the floor. She states after \nshe  did  this  her  pain  intensified  greatly.  She  went  to  the  ER  this \nmorning  because  the  pain  was  so  intense  and  her  pain  medication \nwas “not touching it.” A CT lumbar spine was completed; no new \nfindings.  She  was  instructed  to  follow  up  with  primary  care.  Was \ngiven  morphine  in  ER  and  states  this  did  not  help  the  pain  either. \nShe   has   an   appointment   with   neurosurgery   on   1/7/2020   and \ninterventional  pain  management  on  1/7/2020  as  well.  She  states \nshe  is  unable  to  sleep  since  incident  yesterday,  due  to  pain.  She \ndoes  have  a  medical  marijuana  card  however  states  she  has  not \nbeen using it since she started seeing Psychiatry. Also, the cares is \nan  Oklahoma  card  and  she  lives  in  Arkansas.  She  is  adamant  that \nshe   has   not   been   taking   Xanax   since   she   started   with   pain \nmedication. \n \n The claimant also underwent a CT scan of her low back on December 30, 2020, at Baptist \nHealth. Following is a portion of that diagnostic report: \nFINDINGS: \nVertebrae: No acute bony injury or malalignment. \nDisc/Spinal  canal/Neural  foramina:  Mild  degenerative  change  and \nmultilevel  disc  bulging.  Mild  central  canal  stenosis  at  the  L3-L4 \n\nBell – H208338 \n \n-8- \nand  L4-L5  levels;  due  to  combined  disc  bulging,  ligamentous \nhypertrophy,  and  facet  arthropathy.  Note  that  assessment  of  disc, \nspinal  cord,  and  nerve  root  pathology  is  limited  in  the  absence  of \nintrathecal contrast. \nStomach   and   bowel:   Questionable    wall   thickening   in   the \nnondistended and incompletely visualized stomach. \nSoft  tissues:  Unremarkable  appearance  of  the  paraspinous  and \ntissue. \n \nIMPRESSION: \nMild  central  canal  stenosis  at  the  L3-L4  and  L4-L5  levels;  due  to \ncombined   disc   bulging,   ligamentous   hypertrophy   and   facet \narthropathy.  \n \n On direct examination the claimant was asked about pain after her alleged December 29, \n2020, lifting injury as follows: \nQ What kind – well, let me ask you this: Was there any pain – \n \nA Yes. \n \nQ -- associated with that? \n \nA Yes. \n \nQ What kind of pain? \n \nA It was burning and it was going down this side (indicating), \nlike down the left side. \n \nQ Okay.  How  far  down?  I  take  it  it  went  into  your  butt \nchecks? \n \nA Yes. \n \nQ Did it go down past your butt check? \n \nA Yes. Into my thighs. \n \nQ Into your thighs? \n \nA Yes. \n \nQ Into both thighs or just down the left? \n\nBell – H208338 \n \n-9- \n \nA Down both of them. \n \n The  claimant  testified  on  direct  examination  that  she  had  a  prior  incident  on  a  four-\nwheeler  over  20  years  ago  where  she  injured  her  neck  and  back  but  testified  that  those  injuries \ndid  not  require surgery  or  continued  medical  treatment.  The  claimant  began  to  work  for  the \nrespondent  in  the  middle  of  October  of  2020.  On  direct  examination  the  claimant  was  asked \nabout  low  back  problems  during  the  period  of  time  between  being  hired  by  the  respondent  and \nthe December 29, 2020, incident she alleges as follows: \nQ Okay.  Now,  we  know  that  after  you  got  hired,  but  before \nthe  29\nth\n,  you  were  having  problems  in  your  low  back.  Talk  about \nthat. \n \nA I was staying late, working extra hours, working my eight-\nhour  shift  and  then  they  would  need  people  to  stay  over  after  and \nneeding volunteers. And I was staying over quite a bit afterwards, \nwhether it was a few hours or another shift to help out because we \nwere so shorthanded. \n \nQ Okay. \n \nA And  I  had  done  that  for  several  months  up  until  I  got \ninjured. \n \nQ Okay.  So  when  do  you  think  that  the  back  pain  started \nagain?  After  you  started  at  Fianna  Hills  in  the  middle  of  October, \nwhen did you begin to experience back pain? \n \nA Probably a couple of weeks after starting. \n \nQ Okay. \n \nA Lifting  patients  and  stuff,  sometimes  didn’t  have  the \nequipment, the right equipment to use at the time. Sometimes some \nof  the  equipment  was  down,  so  it  would  take  me  and  another \nperson to pick someone up, put them in bed, and put them in their \nchair, whatever needed to be done. \n \n\nBell – H208338 \n \n-10- \nQ Okay.  So  within  two  weeks  of  you  starting  as  a  CNA  at \nFianna Hills, you began to experience low back pain? \n \nA Yes. \n \nQ Did you go see a doctor for that? \n \nA No. I just took Tylenol. \n \nQ Okay.  All  right.  Was  it  radiating  into  your  buttocks  or \ndown your legs prior – \n \nA No. \n \nQ Let  me  finish.  Was  it  radiating  into  your  buttocks  or  legs \nprior to December 29? \n \nA No. \n \nQ Okay.  Did  it  get  worse  as  your  time  at  Fianna  Hills  went \non? \n \nA Yes. \n \nQ Okay.  Did  you  ultimately  prior  to  the  29\nth\n seek  medical \nattention for pain in your low back? \n \nA Yes. \n \nQ And where did you go? \n \nA I went to my PCP. \n \nQ Who is that? \n \nA At the time I think it was Julie Rowland or Bao Dang. \n \nQ So you saw Dr. Bao Dang? \n \nA Yes. \n \nQ And you were complaining of low back pain? \n \nA Yes. \n \n\nBell – H208338 \n \n-11- \n On  December  7,  2020, twenty-one days  before  the  claimant’s  alleged  incident,  the \nclaimant was seen at Baptist Health Family Clinic South by APRN Julie Rowland. Following is a \nportion of that medical record: \nReason for Visit: \nBack Pain \n40-year-old  female  patient  in  today  with  complaint  of  low  back \npain.  States  she  has  been  having  low  back  pain  off  and  on  for  the \nlast  8  years  however  over  the  last  several  months  is  has  gotten \nincreasingly  worse.  No  known  new  trauma  in  the  last  couple \nmonths.  States  that  she  is  having  pain  in  the  lower  back  and  the \npain radiates down bilateral buttocks down to bilateral feet. States \nher  bilateral  feet  and  toes  also  go  numb.  She  reports  her  bilateral \nhips also hurt and at times “locked up.” When this happens she is \nunable  to  bear  weight  on  her  extremities  and  her  husband  has  to \nhelp  her  walk.  She  is  a  CNA  and  is  on  her  feet  a  lot.  Reports  she \nhad a car accident many years ago and this is when her initial back \npain began. She has been taking Tylenol without relief. She has in \nthe  past  tried  relaxers  however  reports  she  did  not  get  any  relief \nfrom  those  at  the  time.  She  has  taken  hydrocodone  in  the  past \nwithout any problems. She does have a history of anxiety and takes \nXanax  while  she  is  taking  pain  multiple  days  without  having  to \ntake this as needed medication. She is aware she cannot be on pain \nmedication  while  taking  Xanax  due  to  increased  sedation.  She \nstates she is willing to stop the pain Xanax while she is taking pain \nmedication due to her high discomfort level. She has had x-rays of \nher lower back completed approximately 3 years ago. She has also \nhad  x-rays  of  her  hips  completed  many  years  ago  and  states  they \nwere out alone. She tried chiropractic work however it did not help \nwith either pain. \n \n The  claimant  underwent  an  MRI  of  her  lumbar  spine  on  December  17,  2020,  at  Baptist \nHealth,  which was  eleven days  prior  to  the  incident  she  alleges.  Following  is  a  portion  of  that \ndiagnostic report: \nFINDINGS:   5   lumbar   vertebral   bodies   are   present.   A   small \nhemangioma  is  present  in  the  T12  vertebral  body.  The  vertebral \nbodies  are  well  aligned.  There  is  no  evidence  of  subluxation.  No \nacute compression fracture identified. Conus medullaris terminates \nat L1 and is unremarkable in appearance. Paravertebral soft tissues \n\nBell – H208338 \n \n-12- \nare grossly unremarkable. Epidural lipomatosis is present. There is \nmild congenital canal stenosis. \n \nT12-L1: No significant abnormality. \n \nL1-2: There is mild facet degeneration. \n \nL2-3:  Minimal  annular  disc  bulge  is  present  with  mild  left  neural \nforaminal stenosis. No significant central canal stenosis. \n \nL3-4:   Annular   disc   bulge,   bilateral   facet   degeneration   and \nthickening  of  ligamentum  flavum  result  in  mild  central  canal \nstenosis  with  moderate  bilateral  neural  foraminal  stenosis,  left \ngreater than right. \n \nL4-6:    Disc    bulge    osteophyte    complex    and    bilateral    facet \ndegeneration  result  in  mild  central  canal  stenosis  with  mild  facet \ndegeneration. \n \nL6-S1: Bilateral facet degeneration is present. \n \nIMPRESSION: \n1. Multilevel disc  and  facet  degeneration  is  superimposed  upon \nmild congenital central canal stenosis. \n2. Epidural lipomatosis. \n3.  At  L3-4,  there  is  moderate  bilateral  neural  foraminal  stenosis. \nMild central canal stenosis is present at multiple levels as detailed \nabove. \n \n On  December  18,  2020,  medical  records  indicate  that  APRN  Rowland  left  a  voicemail \nfor the claimant in an attempt to discuss her MRI results. Following is that medical note: \nCalled  patient  to  discuss  MRI;  results  left  on  voicemail.  Patient \ncalled  yesterday  asking  about  her  referral  for  pain  injections  and \nher oral medications. Left message informing patient that the pain \ninjections  are  in  addition  to  the  oral  medications  however  if  the \noral medications are going to end up having to be long term, I will \nhave to send her to pain management for the prescribing of those. \nPatient  appointment  with  Dr.  Miller  is  January  7\nth\n.  Will  also  refer \nto neurosurgery for consultation. \n \n On December 28, 2020, the day prior to the claimant’s alleged injuries, she is seen by \nAPRN Rowland for “chronic bilateral low back pain with bilateral sciatica.” The claimant was \n\nBell – H208338 \n \n-13- \nreferred at that time to a pain clinic and a neurosurgeon. The claimant was prescribed gabapentin \nand hydrocodone. \n On  January  11,  2021,  the  claimant was seen  at  Transcend  Pain,  PA  by  Dr.  Miller, to \nwhom the claimant was referred by APRN Rowland on December 18, 2020, ten days prior to her \nalleged compensable injuries. Following is a portion of that medical report: \nChief Complaint: Back Pain and Leg Pain \nHistory of Present Illness: Back Pain and Leg Pain \nHPI:  the  patient  is  a  pleasant  40-year-old  female  referred  in  with \nlow  back  pain  going  down  both  buttocks  all  the  way  down \noccasionally  to  her  feet.  Started  six  years  ago  out  of  the  blue  and \nhas been progressively worse. In the last year it has become severe \nand  her  conservative  measures  which  are  usually  nonsteroidals  at \nprescription strength, including ibuprofen 600mg three times a day \nand heat have not worked that well. She is now having pain 10/10 \neven though she can stand up with some moaning and groaning her \npain  is  probably  7-8/10.  Antalgic  gait.  Sleep  is  very  disrupted. \nWeather  changes  do  not  affect  it  but  it  is  worse  with  walking, \nstanding,   and   sitting   for   long   periods.   Better   with   changing \npositions. She is largely inactive and is requesting an injection for \nimproved relief and activity level. She is set up to see Dr. Johnson \nwith  neurosurgery  in  three  months.  The  patient  denies  any  recent \nfalls.   The   patient   denies   any   recent   changes   in   strength   or \ncoordination. It was explained to the patient that we will minimize \nbut  cannot  eliminate  the  risk  of  the  patient  and  family  potentially \nencountering exposure and infection with Covid 19 virus by being \nhere,  being  evaluated  and  receiving  an  injection.  The  patient  (and \nfamily)  agreed  to  accept  this  risk  due  to  the  severity  of  pain \ncomplaints. \n \n In  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \n\nBell – H208338 \n \n-14- \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n It is the claimant’s burden to prove that she sustained a compensable low back injury \nduring the patient lifting incident she describes as having occurred on December 29, 2020. \n The  claimant,  while  admitting  prior  back  difficulties,  downplays  the  severity  in  her \ntestimony, including denying in testimony to the Commission that she had radiating pain in her \nlower extremities prior to her alleged December 29, 2020, incident. The medical record of APRN \nRowland dated December 7, 2020, clearly states, “She is having pain in the lower back and pain \nradiates bilateral buttocks down to bilateral feet.” In that same record, the claimant reports, “low \nback  pain  off  and  on  for  the  last  8  years  however  over  the  last  several  months  it  has  gotten \nincreasingly worse.” The claimant’s December 17, 2020, low back MRI shows derangement that \nis for all practical purposes identical to the derangement in her low back from her December 30, \n2020, lumbar spine CT scan. \n Prior to her alleged December 29, 2020, injuries the claimant had already been referred to \na pain clinic and a neurosurgeon for her low back difficulties. In fact, she reported to Dr. Joseph \nMiller at Transcend Pain, PA, that her back pain “started six years ago out of the blue and has \nbeen progressively worse.” \n The  credibility  of  witnesses  and  the  weight  to  be  given  to  their  testimony  are \nmatters solely within the province of the Commission.  Ringier America v. Combs, 41 Ark. App. \n47, 849 S.W.2d 1 (1993). \n The claimant’s testimony does not align with the medical records in evidence. I do note \nthat when she was seen by APRN Rowland on December 30, 2020, the medical record states that \nshe picked  a large man  up off the floor  at work  which increased her pain greatly. The claimant \ntestified that she reported that injury to Ms. Butler, the respondent’s human resources supervisor. \n\nBell – H208338 \n \n-15- \nMs. Butler denies any report of injury from the claimant on that day or any other, testifying that \nshe was first notified of the claimant’s allegations by the respondent’s attorney. \n The claimant is unable to prove that she sustained a compensable injury to her low back \non or about December 29, 2020. The claimant’s low credibility leads me to believe that no such \nincident even occurred on December 29, 2020. \n The claimant also alleges a compensable cervical spine injury in that same December 29, \n2020, incident. In the claimant’s description of the incident, she mentions no mechanism of \ninjury to her cervical spine. “We had tried to pick the gentleman up. Could not. Put the gait belt \naround him. We dug down real deep and finally go him up and about that time I felt a pop in my \nlower back.” \nThe  claimant  testified  on  direct  examination  about  when  her  cervical  spine  began  as \nfollows: \nQ Okay. Let’s talk about your neck, Now, initially even in the \nweeks before your felt the pop in your back and when you went the \nnext day, there was no mention of neck pain. \n \nA No. \n \nQ Okay. When did the neck pain begin? \n \nA A couple of days after getting hurt. \n \nQ After the incident? \n \nA Yes. \n \nQ So this would have put us around New Year’s Day? \n \nA Somewhere around there. \n \n On direct examination the claimant was asked about prior neck pain as follows: \n\nBell – H208338 \n \n-16- \nQ Okay. Again, let’s talk about the previous pain of your neck \nprior  to  the  date  of  the  incident.  Okay?  And  we  will  go  back  to \nthree-wheeler accident again. \n \n You indicated you did not see a doctor in those subsequent \nyears. \n \nA No. \n \nQ You were on no medication? \n \nA No. \n \nQ You had no surgeries or treatment? \n \nA No. \n \nQ But you did indicate in some of the medical records that it \nwould be on and off. Would it resolve itself? \n \nA Yes. \n \nQ Do you recall prior to the date of the incident when the last \ntime was that you had had several neck pain? \n \nA Years. Ten, 15 years. \n \nQ Okay.  So  you  hadn’t  had  any  neck  pain  in  a  very long \ntime? \n \nA Correct. \n \n On March 16, 2021, the claimant was seen by APRN Rowland. Following is a portion of \nthat medical report: \nReason for Visit: \nHeadache \n40-year-old  female  patient  in  today  with  complaint  of  severe \nheadache and occipital area with radiates up her head and down to \nher eyes. States “I feel like I am getting my eyes gouged out.” \nReports  she  has  had  regular  headaches  and  migraines  in  the  past \nhowever  she  has  never  had  a  headache  like  this  before.  The \nheadache is pulsating, she is not sensitive to light or sound. She has \nbeen  prescribed  Flexeril  for  cervical  pain  and  her  headaches.  She \n\nBell – H208338 \n \n-17- \nalso   has   numbness/tingling   down   bilateral   arms.   Was   given \nFlexeril  at  her  last  2  appointments.  Reports  the  Flexeril  “helps \nsome” however does not take the headache or pain fully away. She \nrotates  the  Flexeril  with  her  Hydrocodone,  which  she  takes  BID. \nShe  states  she  does  best  with  her  pain  and  headaches  if  she  could \ntake  a  Flexeril  in  the  morning,  one  in  the  afternoon  and  one  at \nbedtime.  She  states  if  she  does  not  take  one  before  bed  she  will \nwake  up  with  an  excruciating  headache  and  the  morning  one \nusually    has  worn  off  by  the  afternoon.  She  has  been  getting \nlumbar spinal injections per Dr. Miller; she states he recommended \ngetting an MRI of her neck. She also reports for the last 8 months \nshe  has  had  intermittent  spasticity  to  her  bilateral  arms/hands. \nWhen  she  is  holding  onto  something  all  of  a  sudden  her  arm  will \njerk  and  the  item  she  is holding  will  fly  out  of  her  hand.  She  also \nreports dizziness, even when sitting still. “Feels like the room is \nspinning.” This has been occurring for the last 3 weeks. She does \nalso report some congestion for the last 3 days. \n \n On March 23, 2021, the claimant underwent an MRI of the cervical spine. Following is a \nportion of that diagnostic report: \nImpression: \nSpondylosis  at  C3-4,  C4-5,  and  C5-C6  levels  with  posterior  disc \nbulging   causing   spinal   canal   stenosis   and   neural   foraminal \nnarrowing as described above. \n \n On  September  1,  2021,  the  claimant  was  seen  at  Baptist  Health  by  APRN  Billie  Jo \nNelson with a chief complaint of neck pain. Following is a portion of that medical record: \nChristine Marie Bell is a 41 y.o. year-old female seen at the request \nof Dang, Bao N, MD who comes to us with a history of neck pain \nfor  about  several  years  on  and  off,  this  episode  started  last  year. \nThe  pain  starts  at  the  base  of  her  skull,  bil. shoulder  pain  and  left \nsuprascapular area. No arm pain but she has bil. tingling sensation \nand numbness at times. Looking up increases her pain, no problem \nreaching  up.  She  reports  dropping  things  frequently.  No  physical \ntherapy, has seen a chiropractor in the far past. No CESI. \n \n Again, the claimant’s testimony does not align with the medical records. The claimant \ndenied recent neck pain prior to her injury but tells APRN Nelson that she has had neck pain on \nand off for several years. The claimant’s testimony about the incident  she alleges does not \n\nBell – H208338 \n \n-18- \ninclude  any  causal  connection  between the lifting  incident  and  her  neck  derangement.  The \nclaimant’s testimony was she just started having neck pain “a couple of days after getting hurt,” \nwhich is in stark contrast to her report to APRN Nelson of neck pain for several years on and off. \nHere the claimant is unable to prove that she sustained a compensable cervical spine injury on or \nabout December 29, 2020. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 15, 2024, and contained in a Pre-hearing Order filed April 23, 2024, are hereby accepted as \nfact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \na  compensable  injury  to  her  neck  and  low  back  on  or  about  December  29,  2020,  and/or \nDecember 30, 2020. \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment for her alleged neck and low back injuries. \n 4. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits from March 31, 2021, to a date yet to be determined. \n 5. The claimant has failed to prove by a preponderance of the evidence that her attorney \nis entitled to an attorney’s fee. \n \n\nBell – H208338 \n \n-19- \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":31192,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H208338 CHRISTINE BELL, Employee CLAIMANT FIANNA HILLS NURSING REHAB CTR., Employer RESPONDENT AMTRUST NORTH AMERICA, Carrier RESPONDENT OPINION FILED JANUARY 28, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Ar...","outcome":"denied","outcomeKeywords":["granted:1","denied:5"],"injuryKeywords":["neck","back","lumbar","fracture","cervical","shoulder"],"fetchedAt":"2026-05-19T22:44:47.095Z"},{"id":"alj-H402326-2025-01-28","awccNumber":"H402326","decisionDate":"2025-01-28","decisionYear":2025,"opinionType":"alj","claimantName":"Randy Carpenter","employerName":"Pbt Management Solutions, LLC","title":"CARPENTER VS. PBT MANAGEMENT SOLUTIONS, LLC. AWCC# H402326 January 28, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Carpenter_Randy_H402326_20250128.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Carpenter_Randy_H402326_20250128.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H402326 \n \nRANDY CARPENTER, \nEMPLOYEE                                                                                                              CLAIMANT \n \nPBT MANAGEMENT SOLUTIONS, LLC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nNORGUARD INS. CO., \nINSURANCE CARRIER/TPA                                                                            RESPONDENT  \n \n \nOPINION FILED JANUARY 28, 2025 \n \nHearing conducted on Tuesday, January 7,  2025, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Mr. Randy Carpenter, Pro Se, of Cabot, Arkansas, did not appear in person at the \nhearing.  \n \nThe Respondents  were represented by  the Honorable Dillon  Cordel, of  the  firm  Anderson, \nMurphy, and Hopkins, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents.  \nA hearing on the motion was conducted on January 7, 2025, in Little Rock, Arkansas.  Claimant, \naccording to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as  a tow  truck driver.  The  date  for \nClaimant’s alleged injury was on April 1, 2024. He reported his injury to Respondent/Employer \non April 5, 2024. Respondents admitted Respondents’ Exhibit 1, Motion to Dismiss, consisting of \n2 pages. Also admitted into evidence was a blue-backed amended Form AR-1, amended Form AR-\n2, Form AR-C, copy of certified return receipt dated November 20, 2024, and a copy of certified \nreturn receipt dated December 18, 2024, as discussed infra. \n\nCARPENTER, AWCC No. H402326 \n \n2 \n \n \nThe  record  reflects  on April 4,  2024,  a  Form  AR-C  was  filed  with  the  Commission \npurporting that Claimant while hooking up a side-by-side tripped and fell injuring his right arm, \nshoulder, and head. On April 12, 2024, a Form AR-1 was filed with the Commission purporting \nthat Claimant’s date of disability was April 4, 2024. On April 16, 2024, an amended Form AR-1 \nwas filed purporting a new date of disability of April 1, 2024. Also on April 16, 2024, a Form AR-\n2 was filed by Respondents accepting compensability as medical only. Respondents next filed an \namended Form AR-2 denying compensability due to a lack of objective findings.  \nThe Respondents filed a Motion to Dismiss on October 30, 2024, requesting this claim be \ndismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. Mail, notice \nof the Motion to Dismiss from my office on November 5, 2024, to his last known address. The \ncertified motion notice  was unclaimed  by  Claimant as  noted on  the November  20,  2024,  return \nreceipt. The motion notice was also sent regular U.S. Mail and was not returned to the Commission. \nClaimant  did not respond  to  the  Motion,  in  writing,  as  required. Thus,  in  accordance  with \napplicable Arkansas law, the Claimant was mailed due and proper legal notice of Respondents’ \nMotion to Dismiss hearing date at his current address of record via the United States Postal Service \n(USPS),  First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-Class  Mail,  on \nDecember  2,  2024.  The  certified  notice  was unclaimed according  to  the  return  receipt  dated \nDecember 18, 2024. The notice sent regular First-Class Mail was not returned. Thus, the hearing \ntook  place  on January  7,  2025.  And  as  mentioned  before,  the  Claimant  did  not  show  up  to  the \nhearing. \n \n \n\nCARPENTER, AWCC No. H402326 \n \n3 \n \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the January 7, 2025, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. The certified hearing notice sent \nto the Claimant’s address of record was unclaimed; however, the hearing notice sent regular First-\nClass mail was not returned to the Commission. The Claimant has the responsibility of supplying  \n\nCARPENTER, AWCC No. H402326 \n \n4 \n \n \nthe Commission with his current address. Thus, I find by the preponderance of the evidence that \nreasonable notice was given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant filed his Form AR-C on April \n4,  2024.  Since  then,  he  has  failed  to  request  a bona  fide hearing.  Therefore,  I  do  find  by  the \npreponderance of the evidence that Claimant has failed to prosecute his claim by failing to request \na hearing. Thus, Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6229,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H402326 RANDY CARPENTER, EMPLOYEE CLAIMANT PBT MANAGEMENT SOLUTIONS, LLC., EMPLOYER RESPONDENT NORGUARD INS. CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 28, 2025 Hearing conducted on Tuesday, January 7, 2025, before the Arkansas Workers’ Compe...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:44:49.168Z"},{"id":"full_commission-H204851-2025-01-27","awccNumber":"H204851","decisionDate":"2025-01-27","decisionYear":2025,"opinionType":"full_commission","claimantName":"Janet Foster","employerName":"Goodwill Industries Of Ar","title":"FOSTER VS. GOODWILL INDUSTRIES OF AR AWCC# H204851 January 27, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Foster_Janet_H204851_20250127.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Foster_Janet_H204851_20250127.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204851 \nJANET FOSTER, EMPLOYEE      CLAIMANT \nGOODWILL INDUSTRIES OF AR,  \nEMPLOYER                          RESPONDENT \n \nATA WORKERS’ COMP SI TRUST/RISK MGT., \nINSURANCE CARRIER/TPA         RESPONDENT \n \n \nOPINION FILED JANUARY 27, 2025 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant  represented  by  the  HONORABLE EDDIE  H.  WALKER,  JR., \nAttorney, Fort Smith, Arkansas.  \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney, \nLittle Rock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Respondent appeals an opinion and order of the Administrative Law \nJudge filed May 15, 2024.  In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law:  \n1. The stipulations agreed to by the parties at a pre-\nhearing conference conducted on November 8, \n2023, and contained in an amended pre-hearing \norder  filed  February  23,  2024,  are  hereby \naccepted as fact.  \n\n2 \nFOSTER – H204851 \n \n2. Claimant  has  met  her  burden  of  proving  by  a \npreponderance  of  the  evidence  that  she  is \nentitled to additional medical treatment from Dr. \nShamim.  \n \n3. Claimant  has  met  her  burden  of  proving  by  a \npreponderance of the evidence that the proposed \nweight  loss  program  at  Metabolic  Research \nCenter  is  reasonable  and  necessary  medical \ntreatment for her compensable injury.  \n \n4. Claimant  has  met  her  burden  of  proving  by  a \npreponderance  of  the  evidence  that  she  is \nentitled to temporary total disability benefits from \nDecember  19,  2022  through  January  6,  2023. \nRespondent  is  entitled  to  a  credit  for  any \ntemporary total disability benefits previously paid.  \n \n5. Claimant’s attorney is entitled to the maximum \ncontroverted  attorney  fee  on  any  indemnity \nbenefits which were unpaid.  \nWe have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s May 15, \n2024 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \n\n3 \nFOSTER – H204851 \n \nFor prevailing on this appeal before the Full Commission, Claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. §11-9-715 (Repl. 2012).  For prevailing on appeal to the Full \nCommission, the Claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b) (Repl. \n2012). \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n I must respectfully dissent from the majority opinion.  In my de novo \nreview of the file, I find the claimant is not entitled to additional treatment in \nthe form of a weight loss program.   \nThe claimant, Janet Foster, suffered a compensable hernia on June \n6, 2022.  The claimant underwent a hernia repair without mesh on \nDecember 19, 2022, and now seeks additional medical treatment in the \n\n4 \nFOSTER – H204851 \n \nform of a weight loss program and additional temporary total disability \nbenefits.  \nAn administrative law judge correctly determined the claimant is only \nentitled to TTD benefits through January 6, 2023, but found the claimant is \nentitled to a weight loss program and additional medical treatment by her \ntreating physician. \nArk. Code Ann. § 11-9-508(a) requires an employer to provide an \nemployee with medical and surgical treatment \"as may be reasonably \nnecessary in connection with the injury received by the employee.\"  The \nclaimant has the burden of proving by a preponderance of the evidence the \nadditional treatment is reasonable and necessary.  Nichols v. Omaha Sch. \nDist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013). \n The  ALJ  granted  the  claimant  additional  medical  treatment  with  Dr. \nAdeel  Shamim  and  weight  loss  treatment  through  the  Metabolic  Research \nCenter.  However,  the  claimant  has  been  diagnosed  with  Type  2  diabetes \n\n5 \nFOSTER – H204851 \n \nwith hyperglycemia since approximately 2010 and “really struggles with her \nweight.”  She admits that while attempting to lose weight for Dr. Shamim to \nconduct a hernia repair, she gained ten pounds. \n This has been an ongoing concern for the claimant who is “always \nattempting to try to lose weight.”  Approximately one year prior to her on-the-\njob injury, the claimant visited the Metabolic Research Center but determined \nthat their program was too expensive.  Prior to her injury in 2022, the claimant \nhad also seen a physician recommending diet pills, a dietician, and a clinic \nrecommending weight loss surgery.  \n Despite  her  weight,  Dr.  Shamim  performed  a  hernia  repair  without \nmesh on December 19, 2022.  Dr. Shamim indicated that the claimant was \n“not optimized for a hernia repair” and performed the repair without mesh to \n“buy some time for her to lose weight in the future and perform a standard of \ncare hernia repair with mesh at that time.”  \n However,  the  claimant  is  unsure  if  she  wants  or  needs  the  hernia \nrepair with mesh.  The claimant has expressed concern to Dr. Shamim about \nthe procedure and has concerns about “the mesh floating around and tearing \nup everything else and that kind of worries me.”  She also believes that “[i]f I \ncould lose the weight, I feel that there wouldn’t be a need for the mesh” or \nthe second surgery at all.  The medical records do not contain any current \nrecommendation  for  the  repair  with  mesh  and  the  claimant  does  not  know \n\n6 \nFOSTER – H204851 \n \nhow  much  weight  she  would  need  to  lose  for  Dr.  Shamim  to  perform  that \nprocedure.  \n The record is clear that the claimant’s need for weight loss is pre-\nexisting.  She made multiple inquiries to weight loss programs prior to her \ninjury and has made previous attempts to lose weight without success.  The \nclaimant is uncertain how much weight she would need to lose to undergo \nthe hernia repair with mesh, but she is also not sure that she would even \nneed the surgery if she lost weight.  It is clear that the claimant’s need for \nweight loss is not causally related to her injury or reasonable and necessary \nfor the treatment of her injury.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n                                     _______________________________                                   \n               MICHAEL R. MAYTON, Commissioner","textLength":7621,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204851 JANET FOSTER, EMPLOYEE CLAIMANT GOODWILL INDUSTRIES OF AR, EMPLOYER RESPONDENT ATA WORKERS’ COMP SI TRUST/RISK MGT., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 27, 2025 Upon review before the FULL COMMISSIO...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["hernia"],"fetchedAt":"2026-05-19T22:29:44.696Z"},{"id":"alj-H402043-2025-01-24","awccNumber":"H402043","decisionDate":"2025-01-24","decisionYear":2025,"opinionType":"alj","claimantName":"Sharon Jones","employerName":"Crestpark Wynne LLC","title":"JONES VS. CRESTPARK WYNNE LLC AWCC# H402043 January 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Jones_Sharon_H402043_20250124.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jones_Sharon_H402043_20250124.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H402043 \n \n \nSHARON D. JONES, EMPLOYEE CLAIMANT \n \nCRESTPARK WYNNE LLC, \n SELF-INSURED EMPLOYER RESPONDENT \n \nCANNON COCHRAN MGMT. SVCS., INC., \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED JANUARY 24, 2025 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 24, 2025, in \nForrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Carol Lockard Worley, Worley, Wood & Parrish, \nAttorneys at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on January  24,  2025, in \nForrest  City,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  were Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”) and  Respondents’  Exhibit  1, \nforms, pleadings,  and correspondence  related  to  this  claim,  consisting  of 19 and \n26 pages, respectively. \n\nJONES – H402043 \n \n2 \n \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on April  2,  2024,  Claimant \npurportedly suffered injuries at work on July 23, 2023, when she slipped and fell.  \nAccording  to  the  Form  AR-2  that  was also filed  on April  2,  2024,  Respondents \naccepted the claim as a medical-only one. \n On March 25, 2024, Claimant filed a Form AR-C.  Therein, she alleged the \nfollowing:  “The cause of injury is due to slip and fall.  My back, legs and tailbone \nhurts [sic] every day.  I also broke my tooth from the fall.”  Claimant did not check \nany box on the form to denote what type(s) of benefit(s) she was seeking. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nOctober 17, 2024.  On that date, Respondents filed the instant motion, asking for \ndismissal  of  the  claim under  AWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702 \n(Repl.  2012) because Claimant  had not sought  a  hearing on  her claim in  the \npreceding six months.  My office wrote Claimant on October 22, 2024, asking for a \nresponse  to  the  motion within  20  days.   The  letter  was  sent  by  first  class and \ncertified mail to the Parkin, Arkansas address for Claimant (a Post Office box) that \nwas listed  in  the  file  and on  her Form  AR-C.  On  October  28,  2024,  she \ntelephoned my office and informed my assistant that she wanted a hearing on her \nclaim.    Based  on  this,  I  informed  the  parties  by  email  that same day  that  I  was \ntaking the motion under advisement and would be proceeding to a hearing on the \nmerits  of  the  claim.    Prehearing  questionnaires  were  issued  to  the  parties  on \n\nJONES – H402043 \n \n3 \n \nOctober  28,  2024.    Claimant  was  informed  that  her  Preliminary  Notice  and \nPrehearing  Questionnaire responses were  due  on  November  12 and  17,  2024, \nrespectively.      These   documents   were   not   only   mailed   to   Claimant   at   the \naforementioned address in Parkin, but were emailed to her as well.  When these \ndeadlines  were  missed,  my  office  attempted  without  success  to  contact her by \nemail.  However, because of Claimant’s failure to file her prehearing documents, a \nhearing on the Motion to Dismiss was set for January 10, 2024, at 10:30 a.m. at \nthe St.  Francis County  Courthouse  in Forrest  City.   This  notice  was  sent  to \nClaimant by first-class and certified mail to the same Parkin address.  She signed \nfor the certified mailing on December 4, 2024, and the first-class version was not \nreturned.  But because inclement winter weather necessitated the cancellation of \nthat hearing, on January 6, 2025, it was re-set for January 24, 2025, at the same \ntime  and  location.    Claimant  signed  for  this  certified  letter  on  January  18,  2024; \nand the notice that was sent by first-class mail to her was not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the foregoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \n\nJONES – H402043 \n \n4 \n \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \n\nJONES – H402043 \n \n5 \n \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin  pursuit  of it (including  appearing  at  the January  24,  2025, hearing  to  argue \nagainst its dismissal) since the filing of her Form AR-C on March 25, 2024.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13.  Because \nof this finding, the argument made under § 11-9-702 will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  with prejudice.   But  based  on \nthe  foregoing,  I find  that  the  dismissal  of  this  claim  should  be  and  hereby  is \nentered without prejudice.\n1\n \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nJONES – H402043 \n \n6 \n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7887,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H402043 SHARON D. JONES, EMPLOYEE CLAIMANT CRESTPARK WYNNE LLC, SELF-INSURED EMPLOYER RESPONDENT CANNON COCHRAN MGMT. SVCS., INC., THIRD-PARTY ADM’R RESPONDENT OPINION FILED JANUARY 24, 2025 Hearing before Administrative Law Judge O. Milton Fine II on January...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:44:42.921Z"},{"id":"alj-H303449-2025-01-24","awccNumber":"H303449","decisionDate":"2025-01-24","decisionYear":2025,"opinionType":"alj","claimantName":"Don Mallory","employerName":"United Parcel Service/ups, Inc","title":"MALLORY VS. UNITED PARCEL SERVICE/UPS, INC. AWCC# H303449 January 24, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MALLORY_DON_H303499_20250124.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MALLORY_DON_H303499_20250124.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H303449 \n \n \nDON D. MALLORY, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nUNITED PARCEL SERVICE/UPS, INC.,  \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nLM INSURANCE CORPORATION, \nCARRIER                                                                                                                RESPONDENT  \n          \n \nOPINION FILED JANUARY 24, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, failed to appear for the dismissal hearing.         \n \nRespondents represented  by the  Honorable David  C.  Jones, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                      Statement of the Case      \n \n A hearing was held on January 15, 2025, in the above-referenced matter pursuant to Dillard \nv. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine \nwhether this case should be dismissed for failure to prosecute under the provisions of Ark. Code \nAnn. §11-9-702 (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.   \nNo testimony was taken. \nThe record consists of the transcript of January 15, 2025, hearing and the documents held \ntherein.  Commission’s Exhibit 1 consists of three (3) pages, which has been marked accordingly; \n\nMALLORY – H303499 \n \n2 \n \nand the Respondents introduced into evidence an exhibit consisting of forty-nine (49) pages, and \nit was thus marked Respondents’ Exhibit 1.     \n                                                               Procedural History \n The Claimant  alleged  that  he  sustained  a  compensable  injury  while  working  for United \nParcel Service/UPS during and in the course of his employment on May 24, 2023.  Although the \nClaimant reported an injury to his employer, he did not file a Form AR-C with the Commission \non this alleged workers’ compensation claim.  However, the evidence before me shows that the \nClaimant reported having sustained multiple gunshot wounds as the result of a possible robbery or \ncriminal assault while returning to his package car following his lunch break.  No further details \nsurrounding this incident were provided.            \n  The Respondents’ claims specialist filed a Form AR-2, with the Commission on June 28, \n2023.  At that time, the respondent-carrier’s stated position was that this claim was pending further \ninvestigation.  Therefore, the claims specialist asked that the Commission’s Compliance Division \ngrant her thirty (30) days to investigate the claim.  This request was granted, and the carrier was \ngiven until June 29, 2023, to file a Form AR-2 regarding their position.   \nOn  June  28,  2023,  the  claims  specialist  filed a Form  AR-2 with  the  Commission \ncontroverting this claim pending further investigation.   \nIt appears that the Claimant retained legal counsel in this matter.  However, on August 22, \n2023, the Claimant’s attorney notified the Commission that her law firm no longer represented the \nClaimant in his claim for workers compensation benefits.   \nSubsequently,  on  September  18,  2023,  the  Claimant  wrote the  following  letter  to  the \nCommission.   “I am requesting a hearing for Workers[sic] Comp [sic] denial.” On  October  25, \n2023,  this claim  was  assigned  to  the Commission’s Legal  Advisors Division  for a voluntary \n\nMALLORY – H303499 \n \n3 \n \nmediation  conference.  An  attorney  from  the Legal Advisors Division returned  the  case to  the \nCommission’s general file because attempts to set up a mediation conference failed.     \n  Afterward, there was no action whatsoever taken on the part of the Claimant to prosecute \nhis claim or pursue benefits. \nTherefore, on November 12, 2024, the Respondents filed a Motion to Dismiss and Brief in \nSupport of the Motion Dismiss, with the Commission, along with a Certificate of Service to the \nClaimant via the United States Postal Service.      \nThe Commission sent a Notice to the Claimant on November 14, 2024, informing him of \nthe Respondents’ motion to  dismiss,  and  a  deadline of  twenty  (20)  days  for  filing  a  written \nresponse.  This  letter  was  sent  via  first-class  and  certified  mail.   Information  received  by  the \nCommission from the United States Postal Service verifies that they were also unable to find any \ndelivery information on this item in their records.   However, the notice sent by first-class mail has \nnot been returned to the Commission.   \n Pursuant to a Hearing Notice dated December 3, 2024, the Commission notified the parties \nthat this claim had been set for a hearing on the Respondents’ motion to dismiss.  Said dismissal \nhearing  was  scheduled for January 15,  2024\n1\n at 9:30 a.m., with  the  hearing  being  held  at the \nArkansas Workers’ Compensation Commission, in Little Rock, Arkansas.  This notice was sent \nvia first-class mail and certified mail. \nInformation  received  from  the  Postal  Service  shows  that  this  item  was  delivered  to  the \nClaimant’s residence, and he signed for the Hearing Notice on December 6, 2024.  The Recipient’s \nSignature section bears the Claimant’s printed name, along  with  his  signature.   Moreover, the \n \n1\n There is a clerical error on the Hearing Notice.  It states the incorrect year of 2024.  Instead, the notice \nshould read that the dismissal hearing was scheduled for Janauy 15, 2025.    \n\nMALLORY – H303499 \n \n4 \n \nnotice sent via first-class mail has not been returned to the Commission.  Based on the foregoing, \nthe evidence preponderates that the Claimant received notice of the dismissal hearing.      \n A hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \ndid not appear for the hearing.  However, the Respondents appeared through their attorney.   \nThe Respondents’ counsel essentially noted that the Claimant has failed to timely prosecute \nhis claim  for  workers’  compensation  benefits.  As  such, Counsel moved that  this  claim  be \ndismissed with or  without prejudice under Ark. Code  Ann. §11-9-702(a)(4)  and  (d)  and \nCommission Rule 099.13.  The Respondents’ attorney also stated that the Claimant has returned \nto  work  for  UPS.    Per  counsel,  the  claim  was  denied  because  the  Claimant’s injuries were  not \nincurred  during  and in  the  course  and  scope  of  his  employment with  UPS; and that the \ncircumstances surrounding his May 24, 2023, assault resulted due to personal reasons unrelated to \nhis employment duties. \nNevertheless,  in  the  present  matter, no  Form  AR-C  has ever been  filed  in  this  case.  \nTypically,  a  Form  AR-C is  the  means  for  filing  a  “formal  claim” for Arkansas workers’ \ncompensation benefits.  I am cognizant that other means exist to file a claim for Arkansas workers’ \ncompensation benefits other than a Form AR-C.  Hence, the Respondents have asserted that there \nexists a document of record that would constitute the filing of a claim in this matter.   \nSimilarly, the Respondents’ attorney noted that although the Claimant did not file a formal \nForm AR-C, he wrote a letter to the Commission regarding his claim being controverted by the \nRespondents and requested a hearing pursuant to the denial.  The Respondents’ counsel contended \nthat the Claimant’s September 18, 2023, letter to the Commission meets the requirements under \ncase law for the filing of a claim for initial workers’ compensation benefits.  I am persuaded that \n\nMALLORY – H303499 \n \n5 \n \nsaid letter clearly proves that the Claimant filed a claim for initial benefits, for which he requested \na hearing.            \nDecision  \nTherefore, the statutory provision and Arkansas Workers’ Compensation Rule applicable \nin the Respondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) states:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nFurthermore, Commission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute his claim for workers’ compensation \nbenefits since the filing of his letter claim more than six (6) months ago; and nor has he resisted \nthe motion for dismissal of his workers’ compensation claim despite having received notice of the \nhearing.   \n\nMALLORY – H303499 \n \n6 \n \nHere,  the  evidence  preponderates  that  the  Claimant  has clearly failed  to  prosecute  this \nclaim for initial workers’ compensation benefits.  Furthermore, I am convinced that the Claimant \nhas abandoned his claim.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant to Ark. Code \nAnn.§11-9-702,  and Commission  Rule  099.13,  this  claim  for initial workers’  compensation \nbenefits is hereby respectfully dismissed without prejudice to the refiling of it within the limitation \nperiod specified under the Arkansas Workers’ Compensation Act (the “Act”). \n                           FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            4. The evidence  preponderates  that  the Respondents’ motion to dismiss this \nclaim for lack of prosecution is well founded, and should be hereby granted, \nwithout prejudice,  per  Ark.  Code  Ann. §11-9-702,  and  Commission  Rule \n099.13, to the refiling of it within the limitation period specified by law.  \n \n                                                           ORDER \n \n Based  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’ compensation benefits.  This dismissal is made pursuant to the provisions of Ark. Code \nAnn. §11-9-702, and Commission Rule 099.13, without prejudice to the refiling of this claim  \n \n\nMALLORY – H303499 \n \n7 \n \nwithin the limitation period specified under the Act. \nIT IS SO ORDERED. \n \n        ______________________________ \n                                                                                                CHANDRA L. BLACK \n                                                                                                Administrative Law Judge","textLength":12563,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H303449 DON D. MALLORY, EMPLOYEE CLAIMANT UNITED PARCEL SERVICE/UPS, INC., EMPLOYER RESPONDENT LM INSURANCE CORPORATION, CARRIER RESPONDENT OPINION FILED JANUARY 24, 2025 Hearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulask...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:44:45.012Z"},{"id":"alj-H404935-2025-01-23","awccNumber":"H404935","decisionDate":"2025-01-23","decisionYear":2025,"opinionType":"alj","claimantName":"Marquette Johnson","employerName":"At&t Services, Inc","title":"JOHNSON VS. AT&T SERVICES, INC. AWCC# H404935 January 23, 2026","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JOHNSON_MARQUETTE_H404935_20250123.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_MARQUETTE_H404935_20250123.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404935 \n \nMARQUETTE R. JOHNSON, \nEMPLOYEE CLAIMANT \n \nAT&T SERVICES, INC., \nEMPLOYER RESPONDENT \n \nOLD REPUBLIC INS. CO./ \nSEDGWICK CLAIMS  \nMGMT. SERVICES INC., CARRIER/TPA  RESPONDENT \n \n \nOPINION FILED JANUARY 23, 2026 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative  Law  Judge  (ALJ) Mike  Pickens,  in  Little  Rock,  Pulaski  County, Arkansas  on \nOctober 28, 2025. \n \nThe claimant was represented by the Honorable Gregory R. Giles, Moore, Giles & Matteson, \nPLLC, Texarkana, Miller County, Arkansas. \n \nThe respondents were represented by the Honorable Rick Behring, Jr., Newkirk & Jones, Little \nRock, Pulaski County, Arkansas. \n \nINTRODUCTION \n  \n        In the amended prehearing order, which the parties amended and affirmed on the record at the \nOctober 28, 2025, the parties agreed to the following stipulations: \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n2. The employer/employee/carrier-TPA relationship existed with the claimant at all \nrelevant times including July 18, 2024, the date the claimant sustained an admittedly \ncompensable injury to his lower back/lumbar spine in a motor vehicle accident \n(MVA) for which the respondents paid both medical and indemnity benefits.  \n \n3. The parties wish to reserve the issue of the claimant’s average weekly wage (AWW) \nand the corresponding rates for temporary total disability (TTD) and permanent \npartial disability (PPD) for a later date. \n\nMarquette R. Johnson, AWCC No. H404935 \n \n2 \n \n \n4. The respondents have controverted the claimant’s alleged neck/cervical spine claim \nin its entirety. \n \n 5.       If the claimant’s subject alleged neck/cervical spine injury is deemed compensable, \nthe parties agree that pursuant to Ark. Code Ann. Section 11-9-411 (2025 Lexis \nReplacement) the respondents are entitled to dollar-for-dollar offset/credit on the   \nmedical, short-term disability (STD), and long-term disability (LTD) paid to or on \nthe claimant’s behalf related to the subject alleged neck/cervical spine injury. \n \n 6. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Commission  Exhibit  1 at 1-2; Reporter’s Transcript  at 4-7). Pursuant  to  the  parties’  mutual \nagreement the issues litigated at the hearing were: \n1. Whether the claimant sustained a “compensable injury” within the meaning of the \nArkansas Workers’ Compensation Act (the Act) to his neck/cervical spine as a result \nof the July 18, 2024, MVA. \n \n2. If the claimant’s alleged neck/cervical spine injury is deemed compensable, the \nextent to which he is entitled to medical and/or indemnity benefits. \n \n3. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n(Comms’n Ex. 1 at 2; T. 4-7). \n \n          The claimant contends that in addition to the admittedly compensable lower back/lumbar \nspine  injury he sustained in  the  July  18,  2024,  MVA,  he  also  sustained  a specific-incident \n“compensable injury” to his neck/cervical spine in this MVA. He contends the medical treatment \nhe has received on his neck/cervical spine since the July 18, 2024, MVA – including but not limited \nto his cervical spine surgery – was and remains related to and reasonably necessary for treatment \nof his July 18, 2024, neck/cervical spine injury. He further contends he is entitled to TTD benefits \nfrom on or about March 5, 2025, through November 4, 2025. The claimant contends he is entitled \nto PPD benefits based on Dr. Seales’s permanent anatomical impairment rating of ten percent (10%) \nbody-as-a-whole (BAW). Finally, the claimant contends his attorney is entitled to the maximum \n\nMarquette R. Johnson, AWCC No. H404935 \n \n3 \n \nstatutory attorney’s fee on this controverted claim; and he specifically reserves any and all other \nissues for future determination and/or litigation. (Comms’n Ex. 1 at 2-3; T. 4-7; 79-83). \n          The respondents contend they paid all appropriate medical and indemnity benefits for the \nclaimant’s admittedly compensable July 18, 2024, lower back/lumbar spine injury. They contend \nthe claimant cannot meet his burden of proof pursuant to the Act in demonstrating he also \nsustained a specific-incident “compensable injury” to his neck/cervical spine as a result of the \nsubject July 18, 2024, MVA. They further contend the claimant failed to provide timely notice of \nany alleged neck/cervical spine injury arising out of the July 18, 2024. The respondents contend \nthe claimant’s alleged neck/cervical spine condition arose from a subsequent intervening event \nand was not the result of his employment and/or the subject July 18, 2024, MVA. The respondents \ncontend the claimant’s alleged neck/cervical spine problems and need for medical treatment, if \nany, are related to a preexisting and/or degenerative condition and not to his work or the subject \nJuly  18,  2024,  MVA. Alternatively, the  respondents  contend  that if the  claimant’s  alleged \nneck/cervical spine problems are compensable, the July 18, 2024, MVA merely constituted a \ntemporary aggravation of his preexisting neck/cervical spine condition for which he previously \nresumed his baseline condition. Finally, the respondents contend that if the claimant’s alleged \nneck/cervical spine problems are deemed compensable and he is awarded any medical and/or  \nindemnity benefits, pursuant to Ark. Code Ann. Section 11-9-411 (2025 Lexis Replacement) they \nare entitled to a dollar-for-dollar credit/setoff in the amount of any and all benefits the claimant’s \ngroup health, short-term disability (STD), and/or long-term disability (LTD) carrier(s) paid to or \non the claimant’s behalf, as well as any and all unemployment benefits paid to or on the claimant’s \nbehalf. Finally, the respondents reserve the right to supplement their contentions and assert any \nand  all  additional  applicable  defense(s)  upon  the  completion  of  any  and  all  necessary  and \n\nMarquette R. Johnson, AWCC No. H404935 \n \n4 \n \nappropriate investigation and discovery; and they reserve any and all other issues for future \ndetermination and/or litigation. (Comms’n Ex. 1 at 3-4; T. 4-7; 83-85). \n         The record consists of the hearing transcript and any and all exhibits contained therein and \nattached thereto.   \nSTATEMENT OF THE CASE \n       The claimant, Mr. Marquette Johnson (the claimant) was 37 years old at the time of the hearing, \nand he has a 12\nth\n grade education. In July of 2023 he began working for the respondent-employer, \nAT&T Services, Inc. (AT&T). After some specialized training the claimant worked as a “prem tech” \nfor AT&T, which required him to install and repair Internet services. He described the job as fairly \nphysical  in  nature  as  he  was  required  to,  among  other  things,  carry  a  ladder  that  weighed \napproximately 50-75 pounds and to climb it as well as to climb into attics and other places in order \nto run wires and do whatever was necessary to install AT&T’s clients’ Internet services. The \nclaimant worked alone without a partner and AT&T supplied him with a service van to drive as \nwell as a cell phone. The claimant was allowed to take the AT&T van home each day after work so \nhe could drive straight to his service calls each day as needed. The claimant testified he never had \nany problems performing his job duties with AT&T prior to the subject MVA. (T. 14-20).  \n       On the date of the subject MVA, July 18, 2024, at around 7:30-35 A.M. the claimant was \ndriving from his home in Jacksonville to his first service call in Sherwood when another driver ran \na stop sign and struck his van in the area between the rear driver’s side wheel and fender. The \nclaimant was wearing his seatbelt, but he said his body “bumped the steering wheel really hard.” \n(T. 23; 20-27). The police and an ambulance arrived at the scene and since the claimant’s back was \n“getting’ tight” the ambulance took him to the Jacksonville Hospital. (T. 26). The MVA resulted in \nminor damage to the service van, with damages estimated at around $2,000, and the collision did \nnot cause the van’s airbags to deploy. (T. 23, 67; Claimant’s Exhibit 2 at 1-111). \n\nMarquette R. Johnson, AWCC No. H404935 \n \n5 \n \n       The respondents accepted the claimant’s lower back injury as compensable, and he was treated \nconservatively  with medications  and  physical  therapy  (PT).  (T.  50-53). The  claimant  was \ndetermined  to  have reached  maximum  medical  improvement  (MMI)  for  the admittedly \ncompensable lower back injury in September 2024, and thereafter he had no residual problems \nrelated to his lower back injury. (T. 53; CX2 at 68).  \n       The claimant was involved in an MVA in 2020. He was 32 years old at that time. After this \n2020 MVA the claimant did not require an ambulance. He complained of both lower back and neck \npain after the 2020 MVA. The claimant really did not recall his neck being much of a problem back \nin 2020. He underwent conservative treatment related to the 2020 MVA which included PT visits \nand wearing a patch on his lower back for pain. He did not recall being prescribed any medication \nor having undergone an MRI following the 2020 MVA. He missed approximately one (1) month of \nwork as a result of the 2020 MVA, and he obtained an $8,000 third-party settlement as a result of \nthe 2020 MVA. The claimant did not have any physical limitations or restrictions related to the \n2020 MVA, and he never had any further problems with either his lower back or neck, was able to \nperform all his job duties with no problems, and he testified he returned to “full function” after the \n2020 MVA. The claimant did not sustain any lower back or neck injuries between the time of the \n2020 and 2024 MVAs. (T. 27-33; Respondents’ Exhibit 1 at 1-30; CX 2 at 29-43). \n       According to the claimant this 2020 MVA and the resulting minor injuries were so insignificant \nhe forgot about them, as he admitted he had failed to mention this 2020 MVA and the resulting \ninjuries and treatment in his recorded statement, or to the physicians who treated him following the \nJuly 18, 2024, MVA and the resulting compensable lower back injury. (T. 27, 29-30; 64; 56-70; \nCX2 at 29-43, 106; RX1 at 1-30; Respondents’ Exhibit 2 at 1-4).  \n\nMarquette R. Johnson, AWCC No. H404935 \n \n6 \n \n       The claimant admitted he did not complain of neck symptoms or specifically identify any \nsymptoms related to his alleged neck/cervical spine injury following the July 18, 2024, MVA until \nhe experienced what he described as a \"crick\" in his neck soon after the July 18, 2024, MVA. He \ntestified he began to tell his treating providers about his neck pain/the ”crick” in his neck in late \nAugust of 2024. Trent Tappan, a Physician's Assistant (PA) who treated the claimant following the \nJuly 2024 MVA does not specifically mention any of the claimant’s alleged neck complaints in his \ninitial progress notes, but a note dated August 20, 2024, does state that one (!) of the symptoms of \nwhich the claimant was complaining was worsening symptoms while \"looking down.\" (T. 40-45: \nCX1 at 41).  \n       The claimant explained during his testimony at the hearing he did not feel like PA Tappan or \nthe physical therapist were seriously addressing the complaints he mentioned to them relating to \nhis neck. Consequently, the claimant went back to the original treating provider, Baptist Health \nUrgent Care (Baptist Urgent Care), the respondents had arranged for him to see immediately after \nthe July 2024 MVA. On September 9\n, \n2024, the claimant presented himself for treatment at Baptist \nUrgent Care complaining of \"difficulty turning his head, having sharp pains and unable to sleep\". \n(CX2 at 64a-64c). The doctor at Baptist Urgent Care gave the claimant specific instructions to use \na tennis ball to try and work through the muscle tension and prescribed him some muscle relaxers \nand ibuprofen for the symptoms, (CX1 at 64a-64c). \n       Thereafter,  and  although  the  claimant  testified  he  was  reporting  neck  pain  and  related \nsymptoms to them, neither the Farrer Physical Therapy or PA Trent Tappan's records make any \nreference to the claimant telling them about the same neck complaints he had just recently made to \nBaptist Urgent Care on September 9, 2024. (T. 41-46). PA Tappan did document the claimant’s neck \ncomplaints in an October 22, 2024, note, and he ordered an MRI of the claimant’s cervical and \n\nMarquette R. Johnson, AWCC No. H404935 \n \n7 \n \nthoracic spine. PA Tappan’s clinic note of 10/22/2024 reports, \"he states that he has had left sided \nshoulder, arm pain and neck pain since the injury as a result of the injury.\" (CX2 at 86-88). After \nnoting the claimant reported to him “significantly worsening” neck complaints, PA Tappan states: \n“I am not sure what is causing Marquette's pain in his neck...a common complaint that he has had \nfor a while (he acknowledges) but has gotten much worse more recently...I do not think there is \nmuch else to offer him. I really cannot speak to his neck.\"...I would recommend an MRI of his \ncervical spine for more definitive evaluation of his ongoing symptoms in his neck, (CX2 at 86-88). \n       On November 11, 2024, the claimant finally underwent MRIs of his cervical and thoracic spine. \n(CX2 at 99-103). The thoracic spine MRI proved to be normal (CX2 at 102-103); but the cervical \ndisc MRI revealed a disc herniations at C5-C6 and C6-C7. (CX2 at 100). In his MRI follow-up \nclinic note dated November 20, 2024, PA Tappan notes the MRI revealed objective findings of, \n\"disc protrusion on the left foraminal at C5-6 with nerve root abutment\", and he referred the \nclaimant to a specialist, Dr. Jared Seale, (CX1 at 104-105). \n       In his comprehensive letter report of December 18, 2024, Dr. Seale writes in pertinent part as \nfollows:  \nHistory of Present Illness:  \nThe patient is a 37 year-old male who presents today for: neck and arm pain following a \nmotor vehicle accident. The patient reports that the accident occurred on July le and \ninitially he experienced back and leg pain. He was prescribed ibuprofen and a muscle \nrelaxant, which masked the neck pain until he reduced his medication intake. The patient \ndescribes the neck pain as persistent, initially thinking it was a crick in his neck. By the \nend of August he began to experience abnormal sensations in his left arm, described as \ntingling, but not extending into the fingers. The patient has no prior history of neck issues \nand has not been treated by a doctor, chiropractor or therapist for such problems before \nthe accident. He sought care at an urgent care in August and later had an MRI that \nindicated a potential need for surgery. The patient works for AT&T and has been unable \nto perform his regular duties due to the pain. He has had physical therapy for his back but \nnot for his neck and has not received any injections in his neck...MRI of the cervical \nspine... . \n\nMarquette R. Johnson, AWCC No. H404935 \n \n8 \n \nAssessment: Degenerative disc disease C6-7 with foraminal narrowing left, C5-6, C6-7 \nwith left C6-7 radiculopathy.  \n \nPlan:  \nC6-7 epidural injection. Physical therapy for the cervical spine, including traction. Work \nrestriction of no bending, twisting or lifting over 20 pounds. Follow up in 2 months after \ninjection and physical therapy. Surgery would be a C5-6, C6-7 ACDF if he does not \nimprove. Discussion: Marquette Johnson, a 37 year-old male, presented with neck and \narm pain following a motor vehicle accident that occurred on July 18\n111\n. Initial treatments \nincluded Ibuprofen and muscle relaxants, which masked the neck pain. Upon cessation of \nmedication, persistent neck pain and tingling in the left arm were noted. Imaging studies \nrevealed degenerative changes and foraminal narrowing at C67. The patient has been \nunable to perform regular duties at work due to pain and has been placed on light duty... . \n \nWork compensation note:  \nThe patient's cervical MRI does not show fracture or disc protrusion. There are signs of \ndegeneration  and  stenosis  which  are  pre-existing.  There  are  no  objective  findings  of \nacute injury. However, the patient's symptoms began on and after the work injury. The \npatient has no history of pain in the neck or pain down the ann prior to the work injury. \nTherefore,  it  is  within  a  certain  degree  of  medical  certainty  that  at  least  51%  of  the \npatient's current symptoms are directly related to their work injury... . \n \n(CX2 at 106-107). \n \nDISCUSSION \n The Burden of Proof, Generally \n      When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2025 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-9-\n704(c)(3) (2025 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \n \n\nMarquette R. Johnson, AWCC No. H404935 \n \n9 \n \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark. App.  2002).  In  determining  whether  the  claimant  has  met  her  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2025 Lexis Repl.); Gencorp Polymer Products v. \nLanders, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. App. \n196, 737 S.W.2d 633 (Ark. App. 1987). \n      All  claims  for  workers’  compensation  benefits  must  be  based  on  proof.  Speculation  and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, 35 \nArk. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, 595 \nS.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility of \nthe witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra. \n      The Commission has the duty to weigh the medical evidence just as it does any other evidence, \nand its resolution of the medical evidence has the force and effect of a jury verdict. Williams v. Pro \nStaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s province to weigh \nthe totality of the medical evidence and to determine what evidence is most credible given the \ntotality of the credible evidence of record. Minnesota Mining & Mfg’ing v. Baker, 337 Ark. 94, 989 \nS.W.2d 151 (1999). \n Compensability \n        For  any  specific  incident  injury  to  be  compensable,  the  claimant  must  prove  by  a \npreponderance of the evidence that her injury: (1) arose out of and in course of his employment; \n\nMarquette R. Johnson, AWCC No. H404935 \n \n10 \n \n(2) caused internal or external harm to her body that required medical services; (3) is supported  by \nobjective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific incident identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4); \nCossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, 687 (Ark. \nApp. 2009). The claimant bears the burden of proving the compensable injury by a preponderance \nof the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.  \n       Moreover, the claimant must prove a causal relationship exists between her employment and \nthe alleged injury. Wal-Mart Stores, Inc., v. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 \n(Ark. App. 2002) (citing McMillan v. U.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (Ark. \nApp. 1997). Objective medical evidence is not always essential to establish a causal relationship \nbetween the work-related accident and the alleged injury where objective medical evidence exists \nto prove the existence and extent of the underlying injury, and a preponderance of other nonmedical \nevidence establishes a causal relationship between the objective findings and the work-related \nincident in question. Flynn v. Southwest Catering Co., 2010 Ark. App. 766, 379 S.W.3d 670 (Ark. \nApp. 2010).   \n     “Objective findings” are those findings which cannot come under the voluntary control of the \npatient. Ark. Code Ann. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, at 80, \n250 S.W.3d 263, at 272 (Ark. App. 2007). Objective findings “specifically exclude subjective \ncomplaints or findings such as pain, straight-leg-raising tests, and range-of-motion tests.” Burks v. \nRIC, Inc., 2010 Ark. App. 862 (Ark. App. 2010).  \n      It is a black letter principle of workers’ compensation law that an employer takes the employee \nas he finds him; and an employment-related incident that aggravates a preexisting condition(s) is \n(are) compensable. Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (Ark. \n\nMarquette R. Johnson, AWCC No. H404935 \n \n11 \n \nApp. 2003). Stated another way, a preexisting disease or infirmity does not disqualify a claim if the \nwork-related incident aggravated, accelerated, or combined with the disease or infirmity to produce \nthe disability for which the claimant seeks benefits. Jim Walter Homes v. Beard, 82 Ark. App. 607, \n120 S.W.3d 160 (Ark. App. 2003). The aggravation of a preexisting, otherwise non-compensable \ncondition by a compensable injury is itself compensable. Oliver v. Guardsmark, 68 Ark. App. 24, \n3 S.W.3d 336 (Ark. App. 1999). An aggravation is a new injury resulting from an independent \nincident. Crudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (Ark. App. 2000) (Emphasis \nadded). Of course, since it is a new injury resulting from an independent cause, any alleged \naggravation of a preexisting condition must meet the Act’s definition of a “compensable injury” in \norder for the claimant to prove compensability. Farmland Ins. Co. v. Dubois, 54 Ark. App. 141, 923 \nS.W.2d 883 (Ark. App. 1996). \n      Concerning the proof required to demonstrate the aggravation of a preexisting condition, our \nappellate courts have consistently held that since an aggravation is a new injury, a claimant must \nprove it by new objective evidence of a new injury different than the preexisting condition. Vaughn \nv. Midland School Dist., 2012 Ark. App. 344 (Ark. App. 2012) (citing Barber v. Pork Grp., Inc., \n2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. 130, 382 \nS.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 (Ark. App. \n2010). Where the only objective findings present are consistent with prior objective findings or \nconsistent with a long-term degenerative condition rather than an acute injury, this does not satisfy \nthe objective findings requirement for the compensable aggravation of a preexisting condition \ninjury. Vaughn, 2012 Ark. App. 344, at 6 (holding that Arkansas courts have interpreted the Act to \nrequire “new objective medical findings to establish a new injury when the claimant seeks benefits \nfor the aggravation of a preexisting condition”); Barber, supra (affirming the Commission’s denial \nof an aggravation of a preexisting condition claim where the MRI findings revealed a degenerative \n\nMarquette R. Johnson, AWCC No. H404935 \n \n12 \n \ncondition, with no evidence of, and which could not be explained by, an acute injury) (Emphases \nadded).  \n        As always, both attorneys did an excellent job presenting the cases of their respective clients. \nThe attorney’s briefs were well written and helpful in setting forth both the applicable law and the \nfacts favorable to their respective clients’ contentions. Based on the applicable law as applied to the \nfacts of this case I am compelled to find the claimant has met his burden of proof in demonstrating \nhe sustained a compensable neck/cervical spine injury as a result of the subject July 18, 2024, MVA, \nfor the following reasons. \n       First, while I found the claimant to be a rather poor historian, based upon his demeanor and \nother relevant factors that are evident from the hearing transcript I found the claimant to be a sincere, \ncredible witness. I do not believe he was  attempting to mislead the respondents, his medical \nproviders – especially Dr. Seale, the specialist and treating physician for his neck/cervical spine \ninjury – or this Commission when he failed to recall the obviously minor 2020 MVA and the details \nassociated with it. Indeed, the medical records related to the 2020 MVA reveal the claimant’s lower \nback and neck injuries for which he underwent conservative treatment were minor and temporary in \nnature, and neither resulted in any residual symptoms, impairment, or disability. Indeed, the record \nis completely devoid of any evidence, medical or otherwise, that reveals the claimant had any \nongoing lower back or neck/cervical spine complaints or symptoms after he fully recovered from \nhis minor injuries, or that he was unable to perform his work duties after the minor 2020 MVA. The \nclaimant’s job at AT&T obviously was rather strenuous in nature, requiring him to carry a 50-75 \npound ladder, to climb it, and to climb into AT&T’s clients’ attics and other spaces in order to install \ntheir Internet services, and there exists no evidence whatsoever he was unable to perform those \nduties before the subject July 18, 2024, MVA and the resulting lower back and neck/cervical spine \ninjuries.  \n\nMarquette R. Johnson, AWCC No. H404935 \n \n13 \n \n       Second, the MRI of November 2024 revealed objective medical findings – the herniated disc at \nC5-6 – for which Dr. Seale ultimately performed the successful anterior cervical discectomy and \nfusion (ACDF) surgery in 2025.  \n       Third, Dr. Seale himself opined the claimant’s C5-6 herniated cervical disc was “more than \n51%” related to the subject July 18, 2024, MVA. And while Dr. Seale apparently was unaware of \nthe claimant’s minor 2020 MVA and the fact the claimant had been treated for obviously minor, \ntemporary lower back and neck/cervical spine problems at that time, there exists no evidence in the \nrecord this lack of knowledge would have changed his causation opinion on the specific facts of this \ncase.  \n       Fourth, both common sense and the preponderance of the evidence reveal that Dr. Seale’s \ncausation opinion on the specific facts of this case was not dependent on the fact he was unaware of \nthe minor 2020 MVA and the treatment related thereto since there exists no objective medical \nevidence, nor does their exist any diagnostic test results such as an MRI, or any medical records \nwhatsoever that demonstrate the claimant had sustained a herniated cervical disc as a result of the \nobviously minor 2020 MVA. This is especially true in light of the fact there exists no reasonable \ndispute the claimant remained symptomatic – either constantly or intermittently – after the 2024 \nMVA. \n      Fifth, the claimant was asymptomatic with respect to any neck/cervical spine problems after the \n2020 MVA and he was able to perform his work duties. And it was not until a relatively short time \nafter  the  subject  July  18,  2024,  MVA that  the  claimant  began  experiencing  symptoms  of  a \nneck/cervical spine injury which worsened over time and necessitated the November 2024 MRI \nwhich revealed the claimant’s herniated cervical disc at C5-6 on which Dr. Seale performed the \nsuccessful  ACDF.  Again,  consistent  with  Dr.  Seale’s  causation  opinion  as  well  as  all  the \n\nMarquette R. Johnson, AWCC No. H404935 \n \n14 \n \naforementioned relevant evidence, the claimant’s herniated cervical disc at C5-6 more likely than \nnot was the result of the subject July 18, 2024, MVA. To find otherwise on these facts would \nconstitute  sheer  speculation  and  conjecture;  and  the  Commission  may  not  rely  upon sheer \nspeculation and conjecture to either support or to deny a claim for compensation. See, Deana, supra.        \n       Therefore, for all the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction of this claim.  \n \n2. The stipulations set forth in the amended prehearing order filed October 29, 2025, \nhereby are accepted as facts.  \n \n3. While the claimant was not a particularly good historian, based on his demeanor \nand other relevant factors, I found him to be sincere and credible. \n \n4. The  claimant  has  met  his  burden  of  proof  in  demonstrating  his  alleged \nneck/cervical spine injury of July 18, 2024, constitutes a “compensable injury” \nwithin the Act’s meaning.  \n \n5. The  claimant has  met  his  burden  of  proof  in  demonstrating  he  is  entitled  to \npayment of his related, reasonably necessary medical treatment for his July 18, \n2024, compensable neck/cervical spine injury.  \n \n6. The claimant has met his burden of proof in demonstrating he is entitled to TTD \nbenefits for his compensable neck/cervical spine  injury of July 18, 2024, from \nMarch 5, 2025, through November 4, 2025.   \n \n7. The claimant has met his burden of proof in demonstrating he is entitled to PPD \nbenefits  commensurate  with  Dr.  Seale’s  10%  BAW  permanent  anatomical \nimpairment rating. \n \n8. Pursuant to Ark. Code Ann. Section 11-9-411, the respondents are entitled to a \ndollar-for-dollar  credit/set-off  in  the  amount  of  any  and  all  medical,  STD  and \nLTD benefits paid to or on the claimant’s behalf. \n \n9. The claimant’s attorney is entitled to the maximum statutory attorney’s fee on \nthese facts.  \n \n \n \n \n\nMarquette R. Johnson, AWCC No. H404935 \n \n15 \n \n       AWARD \n           The respondents hereby are directed to pay benefits in accordance with the “Findings of \nFact and Conclusions of  Law” set forth above. All accrued sums shall be paid in lump sum without \ndiscount, and this award shall earn interest at the legal rate until paid pursuant to Ark. Code Ann. \nSection 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 \n(Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 (Ark. App. \n1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004).   \n       IT IS SO ORDERED.   \n \n                                              \n \n       Mike Pickens \n       Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":31207,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404935 MARQUETTE R. JOHNSON, EMPLOYEE CLAIMANT AT&T SERVICES, INC., EMPLOYER RESPONDENT OLD REPUBLIC INS. CO./ SEDGWICK CLAIMS MGMT. SERVICES INC., CARRIER/TPA RESPONDENT OPINION FILED JANUARY 23, 2026 Hearing conducted before the Arkansas Workers’ Compens...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","lumbar","neck","cervical","thoracic","shoulder","fracture","herniated"],"fetchedAt":"2026-05-19T22:33:09.939Z"},{"id":"alj-H402866-2025-01-23","awccNumber":"H402866","decisionDate":"2025-01-23","decisionYear":2025,"opinionType":"alj","claimantName":"Jessica Bonner","employerName":"Fmh Conveyors LLC","title":"BONNER VS. FMH CONVEYORS LLC AWCC# H402866 January 23, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Bonner_Jessica_H402866_20250123.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bonner_Jessica_H402866_20250123.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H402866 \n \n \nJESSICA E. BONNER, EMPLOYEE CLAIMANT \n \nFMH CONVEYORS LLC, \nEMPLOYER RESPONDENT \n \nVALLEY FORGE INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 23, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 17, 2025, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Benjamin  Daniel  Davis,  Attorney  at  Law, Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on January  17,  2025, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   In \norder  to  address  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1) \n(Repl. 2012)(Commission must “conduct the hearing  . . . in a manner which best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe  record documents from the Commission’s file on the claim,  consisting  of 22 \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \n\nBONNER – H402866 \n \n2 \n \nArk.  App.  LEXIS 549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed on May  3,  2024,  Claimant \npurportedly suffered a strain injury  to her  left  upper  extremity at  work  on June  6, \n2022.  According  to the  Form  AR-2 that  was also filed on May  3,  2024, \nRespondents accepted the claim as a medical-only one. \n On April 30, 2024, through then-counsel Mark Alan Peoples, Claimant filed \na Form AR-C.  Therein, she alleged that she was entitled to the full range of initial \nbenefits  as  a  result  of a  “crush  injury  to  [her]  left  arm”  and  compensable \nconsequence  injuries  to  her  arm,  shoulder,  and  neck.  Respondents’ co-counsel \nentered  his  appearance  before the  Commission  on May  15,  2024.  Also  on  that \ndate,   he   propounded   a   set   of   interrogatories   and   requests for   document \nproduction to Claimant’s counsel. \n On   September   6,   2024,   Peoples   moved   for   permission   from   the \nCommission to withdraw from his representation of Claimant.  In an Order entered \non October 3, 2024, under AWCC Advisory 2003-2, the Full Commission granted \nthe motion. \n On November 18,  2024, Respondents filed  the  instant  motion,  asking  for \ndismissal  of  the  claim under  AWCC  R.  099.13 and  Ark.  Code  Ann. § 11-9-702 \n(Repl. 2012).  Therein, they alleged that more than six months had elapsed since \n\nBONNER – H402866 \n \n3 \n \nthe  filing  of  the  claim  without  a  hearing  request  being  made  by  Claimant.    My \noffice wrote Claimant on November 18, 2024, asking for a response to the motion \nwithin  20  days.   The  letter  was  sent  by  first  class and  certified mail  to the \nJonesboro address of Claimant as shown on her Form AR-C.  The certified letter \nwas  returned  to  the  Commission,  unclaimed,  on  December  2,  2024,  bearing  the \nfollowing notation: \n RETURN TO SENDER \n ATTEMPTED NOT KNOWN \n UNABLE TO FORWARD \n \n On December 10, 2024, a hearing on the Motion to Dismiss was scheduled \nfor January  17,  2025, at 12:30 p.m.  at  the Craighead County  Courthouse  in \nJonesboro.   The Notice of  Hearing was  sent  to  Claimant  via  first-class  and \ncertified mail to  the  same address as  before.   In  this  instance, on December  16, \n2024, Claimant signed for the certified letter.  And as before, the first-class letter \nwas not returned to the Commission. \n The hearing on the Motion to Dismiss proceeded as scheduled on January \n17,  2025.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under the  aforementioned \nauthorities. \n\nBONNER – H402866 \n \n4 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for  initial \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n\nBONNER – H402866 \n \n5 \n \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin  pursuit  of it (including  appearing  at  the January  17,  2024, hearing  to  argue \nagainst its dismissal) since the filing of her Form AR-C on April 30, 2024.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13.  Because \nof this finding, it is unnecessary to address the application of § 11-9-702. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the appellate courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nBONNER – H402866 \n \n6 \n \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7522,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H402866 JESSICA E. BONNER, EMPLOYEE CLAIMANT FMH CONVEYORS LLC, EMPLOYER RESPONDENT VALLEY FORGE INS. CO., CARRIER RESPONDENT OPINION FILED JANUARY 23, 2024 Hearing before Administrative Law Judge O. Milton Fine II on January 17, 2025, in Jonesboro, Craighead...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["strain","shoulder","neck"],"fetchedAt":"2026-05-19T22:44:36.670Z"},{"id":"alj-H307308-2025-01-23","awccNumber":"H307308","decisionDate":"2025-01-23","decisionYear":2025,"opinionType":"alj","claimantName":"Michael Ecton","employerName":"Apex Tool Group LLC","title":"ECTON VS. APEX TOOL GROUP LLC AWCC# H307308 January 23, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Ecton_Michael_H307308_20250123.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Ecton_Michael_H307308_20250123.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307308 \n \n \nMICHAEL R. ECTON, EMPLOYEE CLAIMANT \n \nAPEX TOOL GROUP LLC, \nEMPLOYER RESPONDENT \n \nTRUMBULL INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 23, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 17, 2025, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on January  17,  2025, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted into evidence was Respondents’ Exhibit 1, pleadings, correspondence \nand forms related to this claim, consisting of five pages.  Also, in order to address \nadequately   this   matter   under   Ark.   Code   Ann. § 11-9-705(a)(1)   (Repl. \n2012)(Commission  must  “conduct  the  hearing    .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe  record documents from the Commission’s file on the claim,  consisting  of 38 \n\nECTON – H307308 \n \n2 \n \npages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, 2010 \nArk.  App.  LEXIS 549,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed on November 8, 2023, Claimant \npurportedly suffered an  injury  to  his right  index  finger at  work  on November  2, \n2023, while he  was operating  a  brake  press.  According  to the  Form  AR-2 that \nwas filed on November  16,  2021, Respondents controverted the  claim on  the \nbasis that the Claimant allegedly tested positive for the presence of illegal drugs in \nhis system. \n On November   14,   2023, through   then-counsel Mark   Alan   Peoples, \nClaimant filed  a  Form  AR-C.    Therein, he alleged that he was entitled  to the  full \nrange  of  initial  benefits  as  a  result  of the partial amputation  of  his  finger.  \nRespondents emailed  the  Commission  on  November  17,  2023,  reiterating  their \nposition. \n The  file  was  assigned  to  me  on  February  12,  2024,  to  conduct  a  full \nhearing.  Prehearing questionnaires were issued to the parties on that same date.  \nClaimant  filed  a  timely  response  thereto  on  March  3,  2024;  and  Respondents \nfollowed  suit  on  March  4,  2024.    On  June  10,  2024,\n1\n my  office  scheduled  a \n \n \n1\nAs  reflected  in  the  evidentiary  record,  my  office  mis-diaried  this  matter.  \nThe prehearing telephone conference was promptly scheduled after this oversight \nwas brought to the attention of my office by Claimant’s attorney. \n\nECTON – H307308 \n \n3 \n \nprehearing telephone conference for July 1, 2024.  At that conference, a hearing \nwas  scheduled  for  September  20,  2024,  in  Jonesboro concerning  the  following \nissues: \n1. Whether  Claimant sustained  a  compensable  injury  to  his  right  first \nfinger by specific incident. \n2. Whether Claimant is entitled to reasonable and necessary treatment \nof his alleged compensable injury. \n3. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits \nfrom November 3, 2023, to a date yet to be determined. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \nHowever,  on  August  17,  2024,  Peoples  emailed  my  office:    “Claimant  hereby \nwithdraws  his  hearing  request.    Please  cancel  the  scheduled  hearing  and  return \nthe claim to general files.”  On August 19, 2024, this request was granted. \n However,  while  the  file  was  still  in  my  office, on  August  20,  2024, People \nmoved to withdraw from the case.  Claimant was sent a letter that same day via \ncertified  and  first-class  mail letter  to  the  Jonesboro  address  of  Claimant  listed  in \nthe  file  and  his  Form  AR-C,  requesting  that  he  respond to  the  motion within  20 \ndays.  However,  while  the  certified  letter  was  returned  to  the  Commission, \nunclaimed, on September 17, 2024, the first-class letter was not.  Claimant did not \nrespond to the letter to object to Peoples’s withdrawal, so I entered  an  Order  on \nSeptember 18, 2024, granting the motion under AWCC Advisory 2003-2. \n\nECTON – H307308 \n \n4 \n \n On October  4,  2024, Respondents filed  the  instant  motion,  asking  for \ndismissal  of  the  claim under  AWCC  R.  099.13.    My  office wrote  Claimant on \nOctober 9, 2024, asking  for  a  response  to  the motion within 20 days.   The  letter \nwas  sent  by  first  class and  certified mail  to the same  Jonesboro address of \nClaimant as before.  While the United States Postal Service was unable to verify \nwhether Claimant claimed the   certified   letter, the   first-class   letter   was   not \nreturned.  Regardless, no response from Claimant to the motion was forthcoming.  \nOn October  30,  2024,  a  hearing  on  the Motion to Dismiss was  scheduled for \nDecember  20,  2023, at 10:30 a.m.  at  the Craighead County  Courthouse  in \nJonesboro.  On December 5, 2024, the hearing was re-set for January 17, 2025, \nat  12:00  p.m.   The Notice of  Hearing was  sent  to  Claimant  via  first-class  and \ncertified mail to the same address as before.  Once again, the certified letter was \nreturned  to  the  Commission  unclaimed,  on  January  7,  2025; but the first-class \nletter was not returned to the Commission. \n The hearing on the Motion to Dismiss proceeded as scheduled on January \n17,  2025.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under the  aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \n\nECTON – H307308 \n \n5 \n \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for  initial \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \n\nECTON – H307308 \n \n6 \n \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the January 17, 2024, hearing to argue against \nits dismissal)  since the withdrawal  of  his  hearing  request on August  17,  2024.  \nThus, the evidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the appellate courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should 1be  and  hereby  is  entered without \nprejudice.\n2\n \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nECTON – H307308 \n \n7 \n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":9324,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H307308 MICHAEL R. ECTON, EMPLOYEE CLAIMANT APEX TOOL GROUP LLC, EMPLOYER RESPONDENT TRUMBULL INS. CO., CARRIER RESPONDENT OPINION FILED JANUARY 23, 2024 Hearing before Administrative Law Judge O. Milton Fine II on January 17, 2025, in Jonesboro, Craighead Co...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:44:38.739Z"},{"id":"alj-H403011-2025-01-23","awccNumber":"H403011","decisionDate":"2025-01-23","decisionYear":2025,"opinionType":"alj","claimantName":"Andrew Houston","employerName":"Compass Group USA, Inc","title":"HOUSTON VS. COMPASS GROUP USA, INC. AWCC# H403011 January 23, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HOUSTON_ANDREW_H403011_20250123.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOUSTON_ANDREW_H403011_20250123.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H403011 \n \n \nANDREW HOUSTON,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nCOMPASS GROUP USA, INC.,  \nEMPLOYER                                                                                                         RESPONDENT \n                                                                                                                                                                                                                                                                                                                            \nAIU INS. CO./ \nSEDGWICK CLAIMS MG’T SERVICES, INC., \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                 \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED JANUARY 23, 2025 \n \nHearing conducted on Wednesday, January 22, 2025, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe  claimant,  Mr. Andrew  Houston,  of Little  Rock,  Pulaski County, Arkansas, failed  and/or \nrefused to appear at the hearing.  \n \nThe respondents were represented by the Honorable Rick Behring, Jr., Newkirk & Jones, Little \nRock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n       A hearing was conducted on Wednesday, January 22, 2025, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2025 \nLexis Replacement) and Commission Rule 099.13 (2025 Lexis Replacement).  \n       The claimant, Mr. Andrew Houston (the claimant), initially was represented by counsel in this \nclaim. On August 12, 2024, the claimant’s attorney, Mr. Mark Alan Peoples, filed a motion to \nwithdraw as the claimant’s attorney of record; and by hand-written letter dated August 15, 2024 \n(which  was  filed  with  the  Commission  on  August  20,  2024), the  claimant  agreed  with  Mr. \nPeoples’s request to withdraw as his attorney, and he stated he was in agreement “to withdraw his \n\nAndrew Houston, AWCC No. H403011 \n2 \n \ncase.” (Commission Exhibit 1). By order filed August 30, 2024, the Full Commission granted the \nclaimant’s attorney’s motion to withdraw. (Respondents’ Exhibit 1).  \n       On November 7, 2024, the respondents filed a motion to dismiss without prejudice and brief \nin support thereof (MTD) requesting this claim be dismissed for lack of prosecution pursuant to \nthe  aforementioned  statute  and  Commission  rule. In  compliance  with  the  applicable  law  the \nclaimant was provided due and legal notice of the respondents’ MTD, as well as the date, time, \nand location of the subject hearing. The claimant did not respond in writing to the respondents’ \nmotion in any way, and he failed and/or refused to appear at the subject hearing. \n        The  respondents’  MTD  and  brief  in  support  thereof  contains  a  thorough  and  accurate \nrecitation  of  all other relevant  facts. Consequently, I hereby incorporate the respondents’ MTD \nand brief in support thereof as if set forth word-for-word herein. (RX1). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. (Hearing Transcript; RX1 at 11). \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion \nto dismiss. Rather than recite a detailed analysis of the record, suffice it to say the preponderance \nof  the  evidence  introduced  at  the  hearing and  contained  in  the  record conclusively  reveals  the \nclaimant has failed and/or refused to either request a hearing within the last six (6) months, and he \nhas taken no steps whatsoever to prosecute this claim. \n\nAndrew Houston, AWCC No. H403011 \n3 \n \n        Therefore,  after  a thorough consideration  of  the  facts,  issues,  the applicable  law, the \nrepresentations  of credible counsel, and  other relevant matters  of  record,  I  hereby  make  the \nfollowing: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed due and legal notice of the respondents’ MTD without prejudice \nand brief in support thereof filed with the Commission on November 7, 2024, as well as \nnotice of the date, time, and place of the subject hearing, the claimant failed and/or refused \nto respond in any way to the respondents’ letter MTD and failed and/or refused to appear \nat the hearing. Therefore, the claimant is deemed to have waived his right to a hearing on \nthe respondents’ MTD. \n \n3. The claimant has not requested a hearing within the last six (6) months, and he has failed \nand/or refused to prosecute this claim. \n \n4. Therefore,  the respondents’ MTD without  prejudice  filed November  7,  2024,  should be \nand hereby is GRANTED;  and  this  claim is  dismissed  without  prejudice  to  its  refiling \npursuant to the deadlines prescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and \nCommission Rule 099.13. \n \n        This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \nMP/mp \n\nAndrew Houston, AWCC No. H403011 \n4","textLength":6413,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H403011 ANDREW HOUSTON, EMPLOYEE CLAIMANT COMPASS GROUP USA, INC., EMPLOYER RESPONDENT AIU INS. CO./ SEDGWICK CLAIMS MG’T SERVICES, INC., CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED JANUARY 23, 2025","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:44:40.782Z"},{"id":"full_commission-H200280-2025-01-22","awccNumber":"H200280","decisionDate":"2025-01-22","decisionYear":2025,"opinionType":"full_commission","claimantName":"Billy Ealy","employerName":"Arkansas State Police","title":"EALY VS. ARKANSAS STATE POLICE AWCC# H200280 January 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Ealy_Billy_H200280_20250122.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Ealy_Billy_H200280_20250122.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H200280  \n \nBILLY EALY, \nEMPLOYEE \n \nCLAIMANT \nARKANSAS STATE POLICE,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JANUARY 22, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJune 25, 2024.  The administrative law judge found that the claimant failed \nto prove he sustained a work-related injury or gradual-onset injury.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant failed to prove by a preponderance of the evidence that he \nsustained a compensable injury.   \nI.  HISTORY \n The record indicates that Billy Ealy, now age 44, became employed \nwith the respondents, Arkansas State Police, in August 2003.  Mr. Ealy \n\nEALY - H200280  2\n  \n \n \ntestified in a deposition of record that he worked with the Arkansas State \nPolice in Lake Village, Arkansas for three years, was employed with the \nrespondents in Little Rock for a time, and was then transferred to \nDamascus, Arkansas in about 2008.  The claimant described his job duties \nin Damascus:  “Made traffic stops at that time.  I was assigned to highway \npatrol, so made traffic stops and worked accidents and do what we call road \nblocks, but that’s about it.”       \n The claimant testified at hearing on direct examination: \nQ.  And that gun belt that you wear just basically – briefly tell \nus what is all – how come it’s up to 60 pounds or over?  Help \nus understand that. \nA.  The belt – the gun belt is thick leather....And then, you \nknow, you have OC spray, and then the gun in a leather \nholster, and then handcuffs, and then extra bullets – \nmagazines.  Then that baton.  Sometimes even a flashlight on \nthe back of that – the gun belt. \nQ.  You have a radio? \nA.  Yes, and radio.   \nQ.  Okay, sir.  And as a trooper, are you having at many times \nto go in rough terrain and be involved in rough terrain? \nA.  Yes. \nQ.  Okay.  Tell us when you first started having trouble with \nyour hip and back when you were working for Arkansas State \nPolice, and just kind of give us a feel for what was going on \nwith the symptoms when you were working for Arkansas State \nPolice? \nA.  With that heavy gun belt, you know, I mean the first time \nyou put it on, I mean, it just bears down on your hips, and your \nlower back.  And it’s just a struggle to get through the day, but \nI toughed it out kind of thing.   \n \n The director of the Arkansas State Police corresponded with the \nclaimant on December 2, 2013: \n\nEALY - H200280  3\n  \n \n \nEffective Wednesday, January 1, 2014, you will be laterally \ntransferred from your present assignment in the Highway \nPatrol Division, Troop A to your new assignment in the \nCriminal Investigation Division, Company A, Polygraph \nExaminer.... \nI want to offer my full support as you enter this new position.   \nThe respondents’ attorney examined the claimant at deposition: \nQ.  Can you explain to me what sort of job duties and all that \nyou had when you were in that division?  What all did that \nrequire? \nA.  I performed polygraph exams, but on top of that I had to \nwork criminal cases, done search warrants, you know, \nsearching for evidence, lifting beds, moving refrigerators, \nhaving to bend down, measuring out scenes.  The main thing \nis doing search warrants.   \n \n Lt. Stacie Rhoads corresponded with the claimant on February 5, \n2019 and stated in part:  “Over the past year, you have been counseled \ntwice due to deficiencies noted in your investigative work and for failure to \ndocument pertinent actions as required by ASP Policy and Directives....We \nvalue what you have to offer in Company A but we also expect that you will \nperform your duties in timely and efficient manner.”   \nThe claimant treated at Greenbrier Family Clinic in October 2019, at \nwhich time the claimant complained of shoulder pain and right hip pain.  Dr. \nGary Wayne Bowman assessed “Acute pain of right shoulder” and “Tensor \nfascia lata syndrome.” \nThe record contains an Arkansas State Police Memorandum to \nMajor Mark Hollingsworth from Lt. Stacie D. Rhoads, dated May 24, 2020: \n\nEALY - H200280  4\n  \n \n \nOn May 21, 2020, Sgt. Blackmon and I met with SA Billy Ealy \nregarding concerns for his physical health.  Over the past few \nmonths, I noticed that SA Ealy had taken around 40 hours of \nsick leave.  This generally would not cause me alarm, but \nwhile at the firing range last week (May 12\nth\n) I observed some \nmannerisms that cause me concern.  SA Ealy seemed very \nunsteady on his feet and many times had to use his rifle to \nsteady himself while getting out of the kneeling position.  On \none occasion, I was speaking with Sgt Middleton at the tables \nunder the awning and Billy passed us and almost fell into the \npicnic table.  I asked if he was ok and he said yes.  Later that \nsame day, as we were passing by each other, I noticed that \nhe was not walking in a straight line but seemed to veer off \nand almost walked into the side of the building.  I stopped him \nand asked what was going on.  He said he had an ongoing \nissue with his hip.... \nThe amount of sick days coupled with my observations, I \ndecided that we needed to speak with Billy to see if there \nwere any underlying issues that we needed to be aware of.  \nHe denied having any major health issues and reiterated that \nhe had an issue with his hip.... \nI also noted that Billy had obtained a medical waiver in \nOctober 2019, which excused him from participating [in] the \nannual physical assessment test.  The waiver indicated it was \nfrom shoulder pain.   \n \n The claimant testified on direct examination: \nQ.  Did you ever – did [Stacie Rhoads] ever ask you about \nyour health or seemed like she had any concerns about your \nhealth before you retired? \nA.  She did ask me at the shooting range, because I had \ntrouble getting off the ground in the wrong position....I just had \ntrouble getting up with this right hip.  I just didn’t have any \npower, and when I tried to walk off, you know, I stumbled, \nbecause this right hip didn’t get me any kind of power, and so \nshe asked me about it.... \n \n The parties stipulated that an employee-employer relationship \nexisted on July 1, 2020, “when the claimant contends that he sustained \n\nEALY - H200280  5\n  \n \n \ninjuries to his right hip, groin and lower back that were the result of a \ngradual onset.”  The respondents’ attorney examined the claimant at \ndeposition: \nQ.  So, the workers’ comp file they gave me talks about an \ninjury occurring some time in 2020.   \nA.  Yes.  \nQ.  That’s the date I have on this.  Is that right?  Can you \nexplain to me about your injury and how it occurred, please? \nA.  Well, the thing about it is that I – the gun belt is sitting \nheavy on my hips, on my right hip, and it just kind of got to \nwhere I couldn’t, you know, perform the job correctly, and so \nit’s just sitting on my hips and that’s – that’s the injury.  I \nmean, it just kind of wore, wore me out, wore down my hip \nand that’s all I can think of.   \nQ.  So, let’s talk a little bit about that.  The gun belt you’re \ntalking about, kind of describe that for me.  I know those \nthings are pretty large.  What all did it have on it? \nA.  It has a gun, two magazines of full bullets, a baton, pepper \nspray.  Because it’s thick leather, probably about 50 pounds \nsitting on my hips, but that’s about it that I can think of.   \nQ.  And do you recall – when did you begin – can you \nremember beginning to notice some problems with your hips \nor your body to cause this thing? \nA.  I mean, as soon as – I mean, when I first put the belt on, I \ncould tell it was heavy, but it took probably three or four years \nto notice that my hip couldn’t really take it.  I took it – you \nknow, I lasted for 10 years in the highway patrol area and then \nI asked for a transfer to criminal investigation.... \nQ.  So that would be a gun belt issued to you way back in \n2003? \nA.  Yes.   \nQ.  And if I’m understanding you right, are you saying that – \nwas it in 2020 or thereabouts that you began to notice this \nproblem with your hip? \nA.  Yeah. \nQ.  Or do you remember when it started? \nA.  I don’t.  I can’t remember.   \n \n\nEALY - H200280  6\n  \n \n \n Dr. Bowman diagnosed “Right hip pain” on August 7, 2020.  An x-ray \nshowed “Degenerative changes right hip.”   \nTiffany Epperson, APRN examined the claimant at Conway \nOrthopedic & Sports Medicine Center on August 12, 2020: \nMr. Ealy presents concerning his right hip.  He reports groin \npain that began in 2019.  He doesn’t remember a specific \ninjury and states that the pain has gradually increased.  His \npain radiates to his proximal thigh but no further.  No lateral \nhip or buttock pain.  No lower back pain.  He now has pain \nwith simple activities such as walking.  Hip extension while \nstriding out is painful.  He works as an Arkansas State Police \nOfficer.... \nX-ray:  AP pelvis and lateral view of the right hip obtained \ntoday in clinic show well-maintained femoral acetabular \ncartilage interval, no acute abnormalities or fractures.  \nOsteophytes to the superior lateral aspect of the acetabulum.   \n \n Tiffany Epperson’s impression was “right hip pain,” “Possible right \nhip acetabular impingement,” and “Possible right hip labral tear.”   \n An MRI of the claimant’s right hip was taken on August 17, 2020 with \nthe following conclusion: \n1. Small tear involving the anterior superior labrum.  An os \nacetabuli incidentally noted. \n2. Small bony protuberance of the superior lateral femoral \nhead neck junction with small amount of associated \nmarrow edema.  Additionally, the alpha angle is borderline \nelevated.  These findings could represent CAM type \nfemoral acetabular impingement syndrome in the \nappropriate clinical setting. \n \n The claimant followed up with Tiffany Epperson on August 19, 2020:  \n“The MRI results were reviewed with the patient and options were \n\nEALY - H200280  7\n  \n \n \ndiscussed at length.  I explained that it can take up to weeks for the steroid \ninjection to become fully effective.  Given the physical nature of his job with \nthe Arkansas State Police, I recommend referral to Dr. James Tucker for \nfurther evaluation and management of his labral tear.\"   \n Dr. James Tucker examined the claimant on September 15, 2020: \nRight hip pain x 1 year.  No specific injury.  Had a hip injection \nAug. 2020.... \nHe presents with right hip pain he is a state trooper and \nindicates he has groin pain and posterior pain with activities \nalso has problems when he has been sitting for long period of \ntime.  He has an MRI which shows a labral tear.... \nX-rays we obtained a Dunn view and a frog-lateral of his right \nhip they show an alpha angle of 70 degrees and center edge \nangle of 45 degrees he also has an os acetabuli he has no \nsigns of any significant tonus changes.  No loss of joint space.   \nAssessment and plan \nCombined femoral acetabular impingement with labral tear \nand no degenerative changes.   \nWe are going to proceed with physical therapy working on \ncore strengthening and hip strengthening but not range of \nmotion.... \n \n Dr. Tucker assessed “1.  Body mass index 30+ - obesity” and “2.  \nPain in right hip joint.” \n Dr. Tucker performed a procedure on December 2, 2020:  \n“Diagnostic arthroscopy with Acetabuloplasty right hip.  Femoroplasty.  \nLabral repair.”  The post-operative diagnosis was “Combined \nfemoroacetabular impingement right hip.  Labral tear.” \n The respondents’ attorney examined the claimant at deposition: \n\nEALY - H200280  8\n  \n \n \nQ.  Let’s say prior to your first surgery in December of 2020, \ncan you recall ever telling anybody at State Police that I think \nmy hip problem might be related to the job that you had done \nover the years?  Did you ever do that? \nA.  No.  I did not.   \n \n The claimant testified that he did not return to work for the \nrespondent-employer following the December 2020 surgery.  The record \nindicates that the claimant underwent “Hip arthroscopy, with chondroplasty, \nabrasion arthroplasty and/or resection of labrum (surg) – 03/03/2021.” \n Dr. Tucker referred the claimant to Dr. David Gordon Newbern, who \nreported on or about July 1, 2021: \nBilly Ealy is a 41 year old Male who presents to discuss \nconcerns about their Hip, that began on 07/01/2020.... \nMr. Ealy presents today as a pleasant, 41-year-old gentleman \nhaving trouble with pain in his right hip.  He has had a large os \nacetabuli around the right hip that was causing pain as well as \na labral tear, and this was treated arthroscopically by Dr. \nTucker.  Unfortunately, he developed a significant amount of \nheterotopic bone formation in the anterior hip, and this \nresulted in second surgery to remove this.  The labral repair \nhad held up, but now he is still having some troubles and CT \nimaging reveals that he has had a regrowth of heterotopic \nbone in the anterior hip, especially in the very anterior portion \nof the hip where the bed of some of the previous bone \nremoval has reformed bone and this projects downward and \nvery likely is causing impingement and pain.  He also has had \nfemoroplasty to reduce the pincer impingement in the area.  \nUnfortunately, he has continued to have pain and is eager to \nmove on and get better and do better.... \nX-rays are reviewed as well as CT imaging.  We do see the \nprevious femoroplasty.  We see the heterotopic bone that has \nreformed in the anterior acetabulum which is hooking down \ninto the anterior aspect of the hip joint as a source of \npersistent impingement, and also two small fragments of \nheterotopic bone in the more lateral hip capsule.   \n\nEALY - H200280  9\n  \n \n \n \n Dr. Newbern assessed “Arthritis as a consequence of impingement \nand heterotopic bone formation about the right hip....I think the quickest \nway to a more rapid recovery will be through hip replacement with removal \nof overhanging bone at that time but also with a single dose of low-dose \nradiation therapy to prevent heterotopic bone formation about the right hip.”   \n Dr. Newbern’s assessment on July 1, 2021 was “1.  Body mass \nindex 30+ - obesity,” “2.  Localized, primary osteoarthritis,” and “3.  \nHeterotopic ossification of joint.”   \n Dr. Newbern performed a “Total hip arthroplasty” on August 9, 2021.  \nThe claimant testified that he began suffering from symptoms of Multiple \nSclerosis “several months after that hip replacement,” after he was no \nlonger employed with the respondents.     \n Donna Barron, PA reported on October 7, 2021: \nThe patient returns today 8 weeks postop from a right total hip \nand removal of HO bone.  His surgery was August 9, 2021.  \nHe reports that 1-2 weeks after our last visit, his right hip pain \nreturned and was accompanied by significant weakness.  He \nhas fallen twice in his home even while using his walker.  He \ndoes not feel steady on his feet.... \nHe reminds me that he works for the AR State Police and is \ncurrently off from work.  He fears that he will be unable to \nreturn to work in 4 weeks as expected.  He reminds me that \nwhile working, he is expected to carry a 50lb belt.  He has \npresent (sic) catastrophic leave papers today for \nconsideration....The anterior groin pain is new....With the \nprofound weakness and unsteady gait, I am concerned that \nhe has developed a nerve palsy.   \n \n\nEALY - H200280  10\n  \n \n \n Dr. Newbern reported on November 18, 2021: \nMr. Ealy is my patient with ongoing treatment for his recent \nright hip replacement three months ago.  He has a year-long \naudacity of trying to improve his function with a painful right \nhip and difficulty walking.  He has had a quite physical job \nover the last 10 years as a state trooper wearing a heavy \nequipment belt, significant lifting, and getting into unusual \npositions and stresses in the line of duty of his work.   \nAt this time, it seems very likely the stresses of his work duties \nhave contributed to his loss of ability to work and function.   \nAt this time, he is still undergoing further investigation and \ntreatment of the right hip.  MRI of his cervical and lumbar \nspine is ongoing.  There are further documents to review his \nhistory but at this time, I do believe it is more than 50% that \nthe stress and strains of his work, that is the physical \nrequirements, have compounded, if not caused, his current \ndisability.... \n \n The claimant corresponded with Colonel William J. Bryant, Arkansas \nState Police, on November 19, 2021 and stated in part, “I respectfully \nsubmit my medical retirement from the Arkansas State Police effective \n01/01/22.”  Colonel Bryant replied on December 8, 2021, “Allow me to \ncongratulate you on your retirement effective December 31, 2021.”  The \nparties stipulated that an employee-employer-carrier relationship existed \nuntil on or about December 31, 2021. \n The claimant testified on direct examination: \nQ.  Help the judge understand what was going on with pain \nand symptoms that got to the point where you had to retire.  \nYou didn’t really have choice, did you? \nA.  No choice.  Cause -    \nQ.  Yeah.  Tell the judge about that. \nA.  Yeah.  With this right hip it just catches.  It just gets like \nlocked up.  It locks up on me.  It just makes it tough to walk, \n\nEALY - H200280  11\n  \n \n \nbetter than that even run.  Something that I had to do a lot of \ntimes, and it just go so painful that I couldn’t do it anymore.  \nThat’s why I had to retire.... \nQ.  Do you remember any specific injury, really, that \nhappened before? \nA.  No. \nQ.  It was all gradual? \nA.  It was all gradual.     \n \n The respondents’ attorney cross-examined the claimant: \nQ.  I’ve heard you testify that there was no specific injury to \nyour hip, that it’s just a gradual event.  Is that correct? \nA.  Yes, I remember saying that, but I mean, it’s gradual onset \nwith this hip, because of the gun belt.... \nQ.  Did you ever report an injury to your hip to work? \nA.  No, I did not.   \n \n The record indicates that the claimant signed a Form AR-C, CLAIM \nFOR COMPENSATION, on January 6, 2022.  The ACCIDENT \nINFORMATION section of the Form AR-C indicated that the Date of \nAccident was July 1, 2020.  The claimant described the cause of injury:  \n“The claimant sustained a gradual onset injury to his right hip, groin and \nlower back.  The injuries are as a result of the clamant (sic) performing his \njob duties which required him to wear a heavy belt, to perform heavy lifting \nand to be physically active which required him to get into unusual \npositions.” \nThe record contains a “Company Nurse” Report of Injury dated \nJanuary 13, 2022.  The Report of Injury indicated that an incident occurred \non July 1, 2020, and that the incident was reported on January 13, 2022.  \n\nEALY - H200280  12\n  \n \n \nThe Nature of Incident/body part was “Hip (Lower Extremities).”  The Triage \nNotes indicated, “The employee stated that his right hip started giving him \ntrouble.  The employee stated that his supervisor noticed he was having \ntrouble.”  The Triage Notes indicated that the accident was related to \n“Work.”  The Triage Notes additionally indicated: \nThe employee stated that he received a letter from his \nattorney to report the injury.  The employee stated that there \nis not a specific time or of injury so he does not know what \ntime he started work on the day of the injury.  The employee \nstated that the address of the injury is unknown due to his job.  \nThe employee stated that he does not have a time or date of \nthe injury because it was onset.... \n \n Captain Stacie D. Rhoads prepared a memorandum dated January \n18, 2022 and stated in part: \nRegarding Billy Ealy’s worker’s comp claim, Ealy never \nreported a work related injury to me.  He never reported any \nissues he was having with his physical health as being related \nto work or occurring while working in his official capacity as a \nspecial agent.  The reported date of injury as noted on \nworker’s comp documents indicate he was injured on or about \nJuly 1, 2020 and that I was aware of the injury.  I was on \nannual leave for several weeks surrounding the reported \ninjury date and was never told by Billy that he had sustained a \nwork injury.... \n \nSgt Blackmon and [I] met with Billy on May 21, 2020, and he \ndenied having any major health issues and reiterated that he \nhad an issue with his hip.  He said that he was supposed to \ngo to physical therapy but had not gone as directed by his \nphysician.  He never conveyed to me his hip issue was from a \nwork related injury.  Based on his statement that he had \nrefused to participate in previously prescribed physical \ntherapy, he obviously had sought medical attention on an \nunrelated personal injury.  Ealy never reported any type of \n\nEALY - H200280  13\n  \n \n \nwork related injury to me and there is no definitive indication \nof when a work injury could have occurred.   \n \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on January 19, 2022.  The ACCIDENT INFORMATION section of \nthe Form AR-N indicated that the Date of Accident was July 1, 2020:  “The \nemployee stated that his right hip started giving him trouble.  The employee \nstated that his supervisor noticed he was having trouble.” \n The respondents’ attorney examined the claimant: \nQ.  As of January 19\nth\n of this year, can you recall if you had \ntold people at State Police that, if you can remember, that you \nfelt like your hip problem or surgeries were related to either \nthe gun belt or just the job itself?  Do you remember ever \ntelling anybody that? \nA.  No, I did not.  I don’t remember telling anybody.   \n \n Dr. Erika Santos Horta stated on September 27, 2022:  “Mr. Billy \nEaly has Multiple Sclerosis that effects (sic) the central nervous system.  \nThis neurological disease does not have effects on the bones.  Therefore, \nhim needing a hip surgery is not related to his diagnosis of Multiple \nSclerosis.”     \nThe parties deposed Dr. Newbern on May 19, 2023.  Dr. Newbern \ndescribed the claimant’s work for the respondents as “physically stressful.”  \nThe claimant’s attorney examined Dr. Newbern: \nQ.  It’s my understanding based upon your letter of November \n18\nth\n of ’21, you do believe that the major cause of that would \nbe all of the work that he had had to do for the State of \nArkansas as an Arkansas state policeman.  Is that correct? \n\nEALY - H200280  14\n  \n \n \nA.  Well, I mean, really, at the time that I wrote that letter, I’m \ntrying to – we still don’t know why he’s having such trouble, so \nit’s – I think it’s complicated.  I think he does have – I think his \nhip definitely is a problem with him being able to perform his \nduties.  I think the multiple sclerosis with the significant – \nability walking and the tremulous and all those issues he was \nhaving, which has gotten somewhat better, it seemed, at his \nlast visit, I was pleased to see.  But I think it’s really – it’s a \ncombination of those two things.... \nQ.  The idea behind workers’ comp is that the cost of doing \nbusiness should be borne by the employer and not by the \ntaxpayer and Medicare or Medicaid, and that’s the reason that \nit’s so open in terms of causation.  And that’s all I really \nwanted to confirm with you is that at least more than 50 \npercent, which is what you said, with the stress and strains of \nhis work, physical requirements, is the cause for the need for \ntreatment, at least, if not the need – you said disability, but at \nleast is the need for treatment.  Would you agree with that? \nA.  Yes, sir.  Based on all – the determination happened \nbefore I even had met him.  That kind of had already been \ndetermined, and I did agree with that.   \n \n A pre-hearing order was filed on July 11, 2023.  According to the text \nof the pre-hearing order, the claimant contended, “The claimant alleges that \nas a result of his job duties as a state trooper, he sustained injuries to his \nright hip, groin and lower back.  He was required to wear a heavy \nequipment belt, perform heavy lifting and be physically active which \nrequired him to get into unusual positions.  All these combined duties was \n(sic) the cause of his injuries.  The claimant contends that he is entitled to \nreasonable and necessary medical treatment and past due temporary total \ndisability benefits (dates to be determined).”   \n\nEALY - H200280  15\n  \n \n \n The parties stipulated that the respondents “have controverted this \nclaim in its entirety.”  The respondents contended, “The claimant alleges he \nsustained gradual on set (sic) work-related injuries to his right hip, groin and \nlower back.  The claimant lists the date of injury as July 1, 2020 and filed a \nForm AR-C which was dated January 6, 2022.  The Form AR-C appeared \nto have been received by Arkansas Workers’ Compensation Commission \non January 11, 2022, and by the respondent/Public Employee Claims \nDivision on January 12, 2022.  The Company Nurse Report of injury is \ndated January 13, 2020, at which time the claimant reported his alleged \ninjuries.  That report states that the claimant indicated there was no specific \ndate or time of the alleged injury.  Respondents would contend that the \nnotice provisions of Ark. Code Ann. §11-9-701(a)(1) apply to the facts of \nthis claim and the respondents are not responsible for disability, medical, or \nother benefits prior to receipt of the employee’s report of injury.”   \n The respondents contended, “Respondents contend that the \nclaimant did not sustain compensable injuries while employed with the \nArkansas State Police.  The claimant had longstanding problems with his \nhip and underwent extensive medical treatment and never reported a work-\nrelated condition to his employer prior to January 13, 2022.  The claimant \napplied for FMLA leave and completed the necessary FMLA paperwork \nduring the time he was receiving medical treatment for his hip problems.  \n\nEALY - H200280  16\n  \n \n \nHe did not indicate that he had sustained any work-related injur(ies).  The \nclaimant contends that he sustained gradual injuries to various body parts, \nand therefore the provisions of Ark. Code Ann. §11-9-102(4)(A) apply to the \nfacts of this case.  The claimant ultimately chose to retire from his \nemployment with the Arkansas State Police.  He then filed this workers’ \ncompensation claim.  The claimant had long-standing hip problems which \nwere not the result of his work activities with the ASP.  As the claimant’s hip \nproblems are not work-related, he is not entitled to the benefits he seeks.”   \n The respondents contended, “In the alternative, if it is determined the \nclaimant sustained a compensable injur(ies) and is entitled to any benefits, \nthe respondents hereby request an offset for all benefits paid by the \nclaimant’s group health carrier, all short-term and/or long-term disability \nbenefits received by the claimant, and all unemployment benefits received \nby the claimant.  Respondents contend that it (sic) would be entitled to a \ncredit pursuant to Ark. Coe (sic) Ann. §11-9-411 against any additional \nindemnity benefits that may be awarded to the claimant.  Respondents \nreserve the right to offer additional contentions, or to modify those stated \nherein, pending the completion of discovery.”   \n The parties agreed to litigate the following issues: \n1. Compensability of the right hip, groin and lower back that \nwas the result of a specific incident and a gradual onset.   \n2. Entitlement to reasonable and necessary medical \ntreatment. \n\nEALY - H200280  17\n  \n \n \n3. Entitlement to past due temporary total disability benefits \n(dates to be determined). \n4. Disability rating. \n5. Controverted attorney fees. \n6. Respondents raise the issue of lack of appropriate notice. \n7. All other issues reserved.   \n \nAfter a hearing, an administrative law judge filed an opinion on June \n25, 2024.  The administrative law judge found that the claimant “has failed \nto satisfy the required burden of proof to show that the claimed injury to the \nright hip, groin, and lower back, is in fact work related and compensable \nunder the Arkansas Workers’ Compensation Act.”  The claimant appeals to \nthe Full Commission. \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n(A)  “Compensable injury” means: \n(ii)  An injury causing internal or external physical harm to \nthe body and arising out of and in the course of \nemployment if it is not caused by a specific incident or is \nnot identifiable by time and place of occurrence, if the \ninjury is: \n(a)  Caused by rapid repetitive motion.... \n(b) A back or neck injury which is not caused by a specific \nincident or which is not identifiable by time and place of \noccurrence[.]   \n \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \n\nEALY - H200280  18\n  \n \n \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \nArk. Code Ann. §11-9-102(4)(Repl. 2012) further provides, in \npertinent part: \n(E)  BURDEN OF PROOF.  The burden of proof of a \ncompensable injury shall be on the employee and shall be as \nfollows: \n(ii)  For injuries falling within the definition of compensable \ninjury under subdivision (4)(A)(ii) of this section, the burden of \nproof shall be by a preponderance of the evidence, and the \nresultant condition is compensable only if the alleged \ncompensable injury is the major cause of the disability or need \nfor treatment.   \n \n Preponderance of the evidence means the evidence having greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 \nArk. App. 269, 101 S.W.3d 252 (2003).  “Major cause” means “more than \nfifty percent (50%) of the cause,” and a finding of major cause shall be \nestablished according to the preponderance of the evidence.  Ark. Code \nAnn. §11-9-102(14)(Repl. 2012).   \n An administrative law judge found in the present matter, “4.  That the \nclaimant has failed to satisfy the required burden of proof to show that he \nsustained a work-related injury on the specific date of July 1, 2020.”  The \nclaimant on appeal does not contend that he sustained an accidental injury \nin accordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012).  The \nadministrative law judge further found, “5.  The claimant has failed to satisfy \n\nEALY - H200280  19\n  \n \n \nthe required burden of proof to show that he sustained a gradual onset \ninjury to his right hip, groin, and lower back.”  The administrative law judge \nconcluded that the claimant failed to prove he sustained a compensable \ninjury as the result of rapid repetitive motion.  With regard to the alleged \ncompensable injury to the claimant’s back, the administrative law judge \nerred as a matter of law.  The claimant was not required to prove that his \nalleged compensable back injury was caused by rapid repetitive motion.  \nSee Ark. Code Ann. §11-9-102(4)(A)(ii)(b)(Repl. 2012), supra.   \n Nevertheless, the Full Commission reviews an administrative law \njudge’s decision de novo, and it is the duty of the Full Commission to \nconduct our own fact-finding independent of that done by the administrative \nlaw judge.  Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 \n(1996).  The Full Commission enters its own findings in accordance with the \npreponderance of the evidence.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. \n230, 792 S.W.2d 348 (1990). \n The claimant contends on appeal that he sustained a compensable \n“gradual-onset” injury.  The Full Commission finds that the claimant did not \nprove he sustained a compensable injury to his right hip, groin, or lower \nback in accordance with Ark. Code Ann. §11-9-102(4)(A)(ii) et seq.  As we \nhave discussed, the claimant became employed with the respondents, \nArkansas State Police, in 2003.  The claimant testified that he was required \n\nEALY - H200280  20\n  \n \n \nto wear a thick leather belt as part of his employment.  The claimant \ntestified that the belt carried OC spray, a gun, handcuffs, bullets, a \nmagazine, a baton, and occasionally a flashlight.  The claimant testified, \n“With that heavy gun belt, you know, I mean the first time you put it on, I \nmean, it just bears down on your hips, and your lower back.”   \n The claimant was transferred to the respondent-employer’s Criminal \nInvestigation Division effective January 1, 2014.  The claimant testified at \ndeposition that he was no longer required to wear a heavy gun belt when he \nbegan working in the respondents’ Criminal Investigation Division.  The \nclaimant testified that he began wearing “a plastic hip holster.”  In any \nevent, the claimant contended that he sustained gradual-onset injuries to \nhis right hip, groin, and lower back on July 1, 2020.  The Full Commission \nreiterates the claimant’s testimony regarding these alleged gradual-onset \ninjuries: \nQ.  Can you explain to me about your injury and how it \noccurred, please? \nA.  Well, the thing about it is that I – the gun belt is sitting \nheavy on my hips, on my right hip, and it just kind of got to \nwhere I couldn’t, you know, perform the job correctly, and so \nit’s just sitting on my hips and that’s – that’s the injury.  I \nmean, it just kind of wore, wore me out, wore down my hip \nand that’s all I can think of.   \n \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The Commission is not required to believe the testimony of the \n\nEALY - H200280  21\n  \n \n \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  See also Tucker v. \nRoberts-McNutt, Inc., 342 Ark. 511, 29 S.W.3d 706 (2000).  In the present \nmatter, the Full Commission does not find credible the claimant’s testimony \nthat he sustained gradual-onset injuries to his right hip, groin, and lower \nback as the result of wearing a leather belt in the course of his employment \nwith the respondents.  With regard to the alleged compensable injuries to \nthe claimant’s right hip and groin, the evidence does not demonstrate that \nthe claimant’s tasks were repetitive or were performed rapidly.  See Malone \nv. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998).  Nor \ndoes the record show that the claimant sustained injuries to his right hip, \ngroin, or back as the result of activities such as executing search warrants, \nlifting beds and refrigerators, or bending to measure crime scenes.   \n The Full Commission recognizes Dr. Newbern’s opinion stated on \nNovember 18, 2021, “I do believe it is more than 50% that the stress and \nstrains of his work, that is the physical requirements, have compounded, if \nnot caused, his current disability.\"  Dr. Newbern re-stated his causation \nopinion at a deposition taken May 19, 2023.  However, it is within the \nCommission’s province to weigh all of the medical evidence and to \ndetermine what is most credible.  Minnesota Mining & Mfg. v. Baker, 337 \n\nEALY - H200280  22\n  \n \n \nArk. 94, 989 S.W.2d 151 (1999).  The Commission has the authority to \naccept or reject a medical opinion and the authority to determine its \nprobative value.  Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 \nS.W.3d 878 (2002).  In the present matter, the Full Commission finds that \nDr. Newbern’s opinion is entitled to minimal evidentiary weight.  The \nprobative evidence does not demonstrate that “more than 50 percent” of the \nclaimant’s physical condition involving his right hip, groin, or lower back was \ncaused by the “stresses and strains” of the claimant’s employment duties \nwith the respondents.  We also note the claimant’s testimony that he never \nreported an alleged work-related injury to the respondents prior to the \nclaimant’s retirement effective December 31, 2021.  A supervisor with the \nrespondents, Major Stacie Rhoads, confirmed in her correspondence of \nrecord and in her testimony that the claimant never reported a work-related \ninjury prior to his retirement.   \n The Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that he sustained a “compensable injury” in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(ii)(Repl. 2012).  The \nclaimant did not prove that he sustained an injury causing internal or \nexternal physical harm to the body which arose out of and in the course of \nemployment.  The claimant did not prove that he sustained a compensable \ninjury to his right hip or groin which was caused by rapid repetitive motion.  \n\nEALY - H200280  23\n  \n \n \nNor did the claimant prove he sustained a back injury which was not caused \nby a specific incident or was not identifiable by time and place of \noccurrence.  The claimant did not prove by a preponderance of the \nevidence that the alleged compensable injury was the major cause of the \ndisability or need for treatment with regard to his right hip, groin, or lower \nback.   \n After reviewing the entire record, the Full Commission affirms the \nadministrative law judge’s implicit finding that the claimant failed to prove he \nsustained a compensable injury to his right hip, groin, or lower back.  The \nclaimant did not prove that he sustained a compensable injury as a result of \nthe “positional risk doctrine” enunciated in Deffenbaugh Indus. v. Angus, \n313 Ark. 100, 852 S.W.2d 804 (1993).  The claimant did not prove that any \nportion of Act 796 of 1993 as administered by the Arkansas Workers’ \nCompensation Commission was unconstitutional.  See Rippe v. Delbert \nLogging, 100 Ark. App. 227, 266 S.W.3d 217 (2007); Murphy v. Forsgren, \n99 Ark. App. 223, 258 S.W.3d 794 (2007); Long v. Wal-Mart Stores, Inc., 98 \nArk. App. 70, 250 S.W.3d 263 (2007).  This claim for workers’ \ncompensation benefits is respectfully denied and dismissed. \n  \n \n \n\nEALY - H200280  24\n  \n \n \nIT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":38640,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H200280 BILLY EALY, EMPLOYEE CLAIMANT ARKANSAS STATE POLICE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 22, 2025","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:1","granted:1","denied:8"],"injuryKeywords":["back","hip","shoulder","neck","cervical","lumbar","repetitive"],"fetchedAt":"2026-05-19T22:29:44.680Z"},{"id":"alj-H402072-2025-01-22","awccNumber":"H402072","decisionDate":"2025-01-22","decisionYear":2025,"opinionType":"alj","claimantName":"Gerald Harrison","employerName":"Drivers Select, Inc","title":"HARRISON VS. DRIVERS SELECT, INC. AWCC# H402072 January 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HARRISON_GERALD_H402072_20250122.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRISON_GERALD_H402072_20250122.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H402072 \n \nGERALD HARRISON, Employee                                                                    CLAIMANT \n \nDRIVERS SELECT, INC., Employer                                                        RESPONDENT \n \nQBE INSURANCE/SEDGWICK CLAIMS MGT., Carrier/TPA                  RESPONDENT                                                                                                    \n \n \n \n OPINION/ORDER FILED JANUARY 22, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at the hearing. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n Claimant was involved in a motor vehicle accident on January 27, 2024.  On March \n26,  2024,  Form  AR-C  was  filed  alleging  a  compensable  injury  and  requesting  various \ncompensation benefits.  A pre-hearing conference was conducted on June 5, 2024, and \na hearing was scheduled for September 9, 2024. \nPrior  to  the  scheduled  hearing,  respondent  requested  a  cancelation  due  to  the \nclaimant not responding to discovery requests propounded in April, 2024.  That request \nwas  granted  and  on  October  30,  2024,  claimant’s  attorney  filed  a Motion  to  Withdraw \nwhich was granted by Order dated November 15, 2024. \nShortly thereafter, respondent filed the present Motion to Dismiss.  A hearing was \n\nHarrison – H402072 \n2 \n \nscheduled on the respondent’s motion for January 13, 2025, and notice of the hearing \nwas  sent  to  claimant  by  certified  mail.    The  certified  mail  notice  was  returned  as \n“Unclaimed.”  Claimant  did  not  appear  at  the  hearing  and  has  not  responded  to  the \nrespondent’s motion. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      ____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2377,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H402072 GERALD HARRISON, Employee CLAIMANT DRIVERS SELECT, INC., Employer RESPONDENT QBE INSURANCE/SEDGWICK CLAIMS MGT., Carrier/TPA RESPONDENT OPINION/ORDER FILED JANUARY 22, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Se...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:44:32.432Z"},{"id":"alj-H204763-2025-01-22","awccNumber":"H204763","decisionDate":"2025-01-22","decisionYear":2025,"opinionType":"alj","claimantName":"Kirklin Thompson","employerName":"Den Tex Central Inc. D/b/a Denny’s Corporation","title":"THOMPSON VS. DEN TEX CENTRAL INC. d/b/a DENNY’S CORPORATION AWCC# H204763 January 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/THOMPSON_KIRKLIN_H204763_20250122.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOMPSON_KIRKLIN_H204763_20250122.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204763 \nKIRKLIN V. THOMPSON, EMPLOYEE      CLAIMANT \n \nDEN TEX CENTRAL INC.  \nd/b/a DENNY’S CORPORATION, EMPLOYER   RESPONDENT \n \nWESCO INSURANCE COMPANY, CARRIER/ \nAMTRUST NORTH AMERICA, TPA     RESPONDENT \n            \nOPINION FILED JANUARY 22, 2025 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on January 14, 2025. \nClaimant is represented by Malcolm A. Simmions, Little Rock, Arkansas. \nRespondents are represented by their attorney, William C. Frye of North Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on January 14, 2025, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct. The claimant waived his right to appearance through his attorney by an email dated \nJanuary 8, 2025, and did not appear at the time of the hearing. A full hearing had been \nheld on the 5\nth\n day of December, 2023, where the claimant contended that he was entitled \nto temporary partial disability that had started on or about May 1, 2022 and ran up through \nthe  end  of  January  and  possibly  longer,  along  with  additional  medical  benefits,  plus \nattorney fees. An opinion was issued on February 13, 2024, holding that the claimant was \nentitled  to  permanent  partial  disability  benefits  of  $3,213.08  less  what  he  had  already \nreceived, and the applicable attorney fees as spelled out by the Arkansas Workers’ \nCompensation Commission. It was also found that the claimant had failed to satisfy the \n\nKirklin V. Thompson – H204763 \nrequired  burden  of  proof  that  he was  entitled  to  additional  medical  by  the  respondent.  \nThe last action taken in this matter was the Opinion that was issued on February 13, 2024.  \nSince  the  time of  the above-mentioned opinion,  the  claimant  has  been  represented  by \nmultiple attorneys and the records provide that the claimant was represented by Malcolm \nA. Simmons at the time of the hearing regarding the Motion to Dismiss on January 14, \n2025.  \n A Motion to Dismiss was filed by the respondents in this matter and appropriate \nnotice was provided to the claimant notifying him that a hearing on the Motion to Dismiss \nwas  set  for January  14,  2024,  in Little  Rock,  Arkansas. The claimant’s representative \nnotified that Commission that the claimant did not wish to proceed with his objection to \nthe Motion to Dismiss. At the time of the hearing, William C. Frye appeared on behalf of \nthe Respondents and asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondents, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3377,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204763 KIRKLIN V. THOMPSON, EMPLOYEE CLAIMANT DEN TEX CENTRAL INC. d/b/a DENNY’S CORPORATION, EMPLOYER RESPONDENT WESCO INSURANCE COMPANY, CARRIER/ AMTRUST NORTH AMERICA, TPA RESPONDENT OPINION FILED JANUARY 22, 2025 Hearing before Administrative Law Judge...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:44:34.606Z"},{"id":"full_commission-H201515-2025-01-21","awccNumber":"H201515","decisionDate":"2025-01-21","decisionYear":2025,"opinionType":"full_commission","claimantName":"Jackie Johnson","employerName":"Arkansas Department Of Transportation","title":"JOHNSON VS. ARKANSAS DEPARTMENT OF TRANSPORTATION AWCC# H201515 January 22, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Johnson_Jackie_H201515_20250121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Johnson_Jackie_H201515_20250121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n CLAIM NO. H201515 \n \n \nJACKIE E. JOHNSON, EMPLOYEE  CLAIMANT \n \n \nARKANSAS DEPARTMENT OF  \nTRANSPORTATION, EMPLOYER               RESPONDENT  \n \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/TPA                 RESPONDENT \n \n \nORDER FILED JANUARY 21, 2025 \n \nBefore the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \n \nORDER \n \n  This matter is currently before the Full Commission on the \nClaimant’s Motion for Extension to File Brief.  \n  After consideration of claimant’s motion, with no objection by \nthe respondents, and all other matters properly before the Commission, the \nCommission finds that the claimant’s motion should be and is hereby \ngranted.  \n  \n\nJohnson-H201515  2 \n \n  IT IS SO ORDERED. \n    ___________________________________                                                                  \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ____________________________________          \n    M. SCOTT WILLHITE, Commissioner \n \n    _____________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1309,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201515 JACKIE E. JOHNSON, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF TRANSPORTATION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT ORDER FILED JANUARY 21, 2025 Before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas....","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.684Z"},{"id":"alj-H204111-2025-01-21","awccNumber":"H204111","decisionDate":"2025-01-21","decisionYear":2025,"opinionType":"alj","claimantName":"Peggy Clemons","employerName":"South County School District","title":"CLEMONS VS. SOUTH COUNTY SCHOOL DISTRICT AWCC# H204111 January 21, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CLEMONS_PEGGY_H204111_20250121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CLEMONS_PEGGY_H204111_20250121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204111 \n \nPEGGY CLEMONS, EMPLOYEE      CLAIMANT \n \nSOUTH COUNTY SCHOOL DISTRICT’ \nEMPLOYER          RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOC     RESPONDENT \n \nOPINION AND ORDER FILED JANUARY 21, 2025 \nThe Hearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas was held on December 3, 2024.    \nClaimant is pro se and appeared on her own behalf at the time of the hearing. \nRespondents are represented by Carol Worley, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n The Respondents  filed  their  initial  Motion to  Dismiss  for  Failure  to  Prosecute \npursuant  to  Arkansas  Code  Ann  11-9-702  and  Rule  099.13  of  the  Arkansas Workers’ \nCompensation  Act on  or  about  April  12,  2023, and  a  hearing  was  held  in  regard  to  this \nmotion on June 27th, 2023, in Little  Rock,  Arkansas, where  the  respondents  contended \nthat  the  claimant  had  not  sought  any  type  of  bona  fide  hearing  before  the  Arkansas \nWorkers’ Compensation Commission over the last six months. There was no record of the \nclaimant filing a response to the Motion to Dismiss but the claimant did appear Pro Se at \nthe time of the hearing.  \n   The claimant had filed an AR – C on or about June 6, 2022, contending she had \nbeen injured on February 9, 2022, while loading car riders into their cars at the end of a \nschool day, slipping on ice, and injuring her “foot, ears loudly ringing, with upper and lower \nback pain.” The respondents filed an AR-2 dated June 7, 2022, which provided that the \nclaim was medical only. The claimant’s retained counsel, Evelyn Brooks, of Fayetteville \n\nPeggy Clemons – H204111 \nArkansas, withdrew as the attorney of record on August 8, 2022, after obtaining an Order \nfrom the Full Commission. \n After a hearing, the Motion to Dismiss was held in abeyance and the claimant was \ninstructed to appropriately respond to the Prehearing Questionnaire and any outstanding \ndiscovery within 20 days of the Order. Further, the claimant was instructed to take the steps \nas required by the Arkansas Workers’ Compensation Act that she deemed appropriate to \npursue her claim, which might include obtaining counsel. Failure to do so could result in a \nrequest  to  renew  the  Motion  to  Dismiss  and  would leave  no  alternative  but  to  take  the \nappropriate action as spelled out in the Arkansas Workers’ Compensation Act. \n Another Opinion and Order was filed on September 13, 2023, after the claimant filed \na number of documents, which appeared to be evidence of her claims. These documents \nwere  submitted  with  comments  and  highlights  in  violation  of  Commission  Rules  on \nadmissibility and  the  claimant was  placed  on  notice  that  the  failure  to  submit  these \ndocuments without comments and highlights would render these documents inadmissible \nat the time of a hearing. Additionally, the claimant had withdrawn her authorization for the \nrespondents to obtain her medical records, as required by the rules of the Commission. It \nalso appeared that the claimant had been unable or unwilling to obtain representation in \nthis matter in order to assist her in pursuing her claim. The Opinion and Order instructed \nthe claimant to submit a medical authorization not limited by time and to file an answered \nPrehearing  Questionnaire  within  10  days  of  this  Order.  In  addition,  the  claimant was \ninstructed that if she intended to pursue her claim to a hearing, she was required to submit \ndocumentary evidence that she intends to have admitted into evidence at the time of the \nhearing  without  comments  or  highlights.  Failure  to  take  this  action  would result  in  the \ndocuments being inadmissible. \n\nPeggy Clemons – H204111 \n Another Motion to Dismiss for Failure to Prosecute was filed on or about August 28, \n2024, and a hearing was held in regard to this motion on December 3, 2024. The claimant, \nwho had still not requested a hearing in regard to the matter, did submit documents at the \ntime of the Motion to Dismiss hearing containing what appeared to be a Motion to Object \nto  the  Motion  to  Dismiss,  Motions  in  Limine,  Motions  to  Quash,  Motions  for  Summary \nJudgement,  and a statement  that  all  the  Respondents  were  liable  for  $300,000.00 \ncollectively  for  non-economic  damages  plus  another  $75,000  per  liable  entity.  She  also \nmentioned the Federal Covid Relief Act and the New Learns Act teachers raise. In addition, \nshe contended that she should be able to litigate Condition Code 91 and the International \nClassification of Disease Codes.   \nAfter a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondent,  and  the  statements  by  the  claimant,  it  is  found  that  this matter  should  be \ndismissed without prejudice, for failure to prosecute pursuant to A.C.A. 11-9-702 and Rule \n099.13 of the Arkansas Workers’ Compensation Act. \nORDER \n \n Pursuant to the above statement of the case, and the multiple issues and hearings \nin regard to this matter, it is determined that the claimant has taken little to no action to \nactively pursue her claim over an extended period of time and there is no alternative but to \ngrant  the  Motion  to  Dismiss  this  claim  in  its  entirety,  without  prejudice,  for  failure  to \nprosecute. \nIT IS SO ORDERED. \n \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE","textLength":5615,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204111 PEGGY CLEMONS, EMPLOYEE CLAIMANT SOUTH COUNTY SCHOOL DISTRICT’ EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC RESPONDENT OPINION AND ORDER FILED JANUARY 21, 2025 The Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:44:30.372Z"},{"id":"alj-H301917-2025-01-17","awccNumber":"H301917","decisionDate":"2025-01-17","decisionYear":2025,"opinionType":"alj","claimantName":"Sander Gillespie","employerName":"Kipp Delta College Prep School","title":"GILLISPIE VS. KIPP DELTA COLLEGE PREP SCHOOL AWCC# H301917 January 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GILLESPIE_SANDER_H301917_20250117.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GILLESPIE_SANDER_H301917_20250117.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301917 \n \nSANDER D. GILLISPIE, EMPLOYEE CLAIMANT \n \nKIPP DELTA COLLEGE PREP SCHOOL, EMPLOYER RESPONDENT \n \nEMPLOYERS INS. CO. OF WAUSAU/ \nLIBERTY MUTUAL GROUP, CARRIER/TPA  RESPONDENT \n \n \nOPINION FILED 17 JANUARY 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 17 October 2024 in Helena-West Helena, Arkansas. \n \nThe Hunter Law Firm, Mr. Scott Hunter, appeared for the claimant. \n \nThe Ryburn Law Firm, Mr. Michael Ryburn, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 17 October 2024 in Helena-West Helena, \nArkansas. The parties participated in a prehearing telephone conference on 25 June 2024. \nA Prehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on 26 June 2024.  \nThat Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  The employer/employee/carrier-TPA relationship existed at all relevant times. \n \n3.  The claimant’s average weekly wage entitles her to Temporary Total Disability \n(TTD) benefits at a rate of $835 per week and Permanent Partial Disability (PPD) \nbenefits at a rate of $626 per week. \n \n4. TTD benefits were paid by the respondents until 20 November 2023, when she \nwas released to regular duty at maximum medical improvement (MMI) with a \nzero percent (0%) permanent impairment rating.\n1\n \n \n \n1\n This stipulation was agreed upon by the parties at the outset of the hearing. [TR at 5.] \n\nS. GILLISPIE- H301917 \n2 \n \nThe Order stated the following ISSUES TO BE LITIGATED: \n1. Whether the claimant is entitled to additional benefits, specifically whether she \nis entitled to additional TTD benefits and additional medical treatment. \n \n2. Whether the claimant is entitled to an attorney’s fee. \n \nAll other ISSUES are reserved.\n2\n \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire \nresponses, were incorporated into the Prehearing Order. The claimant contends that the \nrespondents have paid for some medical treatment, but have failed to pay for proper TTD \nbenefits and additional necessary medical treatment. The respondents contend that the \nclaimant fell at work and injured her left knee. Benefits were paid for medical treatment \nand TTD. She did not sustain a compensable injury to her back, feet, or hips.  \n The claimant was the only WITNESS. \nThe EVIDENCE considered in this claim consisted of the hearing testimony along \nwith the following EXHIBITS: Commission’s Exhibit No 1 (the Prehearing Order) and \nClaimant’s Exhibit No 1 (an index page and forty pages of medical records). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole and having heard testimony from the \nwitness, observing her demeanor, I make the following findings of fact and conclusions of \nlaw under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2\n The respondents acknowledge that the claimant fell and injured her knee at work. She requested a \nhearing on her entitlement to additional medical and TTD benefits. The bulk of the testimony and \nthe medical evidence presented, however, related to reported pain in the claimant’s back and hips \nand treatment(s) that she sought or is seeking related thereto. The Prehearing Order notes that the \nrespondents specifically deny that the claimant sustained compensable injuries to her back, hips, or \nfeet. Whether such alleged injuries are compensable was not an issue that the parties designated for \nlitigation at the hearing. As indicated above, this Opinion is limited to the issues outlined in the \nPrehearing Order and are being addressed only to the extent that they pertain to the claimant’s \ncompensable left knee injury. To the extent that the claimant seeks benefits regarding her back, \nhips, and/or feet, any such issues are reserved and not addressed herein.  \n\nS. GILLISPIE- H301917 \n3 \n \n \n 2. The previously-noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that she is \nentitled to additional medical benefits in connection with her compensable \nleft knee injury. \n \n4.   The claimant failed to prove by a preponderance of the evidence that she is \nentitled to additional TTD benefits in connection with her compensable left \nknee injury. \n \n5. The claimant failed to prove by a preponderance of the evidence that she is \nentitled to an attorney’s fee. \n \nIII.  HEARING TESTIMONY AND EVIDENCE \nClaimant Sandra Gillispie \n The claimant testified that she is fifty years old with bachelor's degrees in business \nadministration and elementary education. She also holds a master’s degree in curriculum \nstudies and is currently enrolled in another master’s program in instructional design and \ncomputer technology. She began working for the respondent-employer on 30 June 2021 as a \nteacher, coach, and building facilitator. \n On 16 March 2023, the claimant slipped and fell at work. She testified that she \nreported the injury before seeking treatment. \nQ:  I see. And what—what body parts did you injure in the fall? \nA:  Well, when I went into the air and I came down, I landed on my \nbuttocks, but my left knee, the skin was knocked off or whatever, so \nwhen I got to the hospital, they ended up putting that left—that left \nknee like in a little brace like. \nQ:  Okay. And so did you take yourself to the hospital? I mean, what \nhappened there? \nA:  Yes, sir. \nQ:  And this was on the same day of the accident? \nA:  Yes, sir. \nQ:  And so what hospital did you go to? \nA:  The Methodist in West Memphis. \n \n[TR at 11-12.] \n\nS. GILLISPIE- H301917 \n4 \n \n The claimant was later seen by Jeffrey Pipkin, NP-C, at OrthoXpress in Tupelo, \nMississippi. She testified that she complained to him of pain in her buttocks. Mr. Pipkin \nordered some diagnostic scans and eventually referred her to the Semmes-Murphey clinic \nfor further evaluation. The claimant underwent some physical therapy and steroid \ninjections before being released at MMI by Pipkin in November of 2023. \nQ:  Okay. And as far as—Then it looks like he released you at \nmaximum—at maximum medical improvement. What was going on \nthen? \nA:  That was after I got the injections from Semmes and Murphy. And \nwhen I came back with—from the injections and me also doing \nphysical therapy, I did feel better. And he also released me to do like \nsome light duty or whatever. I did tell him, you know, I felt better, so \nhe released me to do like some light duty or whatever, and I did tell \nhim, you know, I felt better, so he released me I think in November [of \n2023], but then—but even that day when he released me, I did tell \nhim I felt minor pain ‘cause every time I went to his office, he always \ngave me a scale of pain. The pain never completely stopped, but it was \ntolerable. And so again from being released from Semmes and Murphy \nwith their discharge paper, they kind of gave an idea what to look for, \nand so I was fine. At least I thought I was. \n \n[TR at 16.] \n The claimant then testified that she had a new job beginning in January of 2024, \nand she wanted to make sure that some lingering pain would not impact her new job \nperformance. The claimant eventually contacted the respondents, who denied coverage for \nadditional treatment or benefits. According to her testimony, the claimant works as an \nindependent contractor for Kids First Education. After she began seeing Mr. Pipkin again \nin 2024, he restricted her work status. She stated that her employer limited her to “one day \na week until I get off this medical report.” [TR at 19.] \n On cross examination, the claimant confirmed a portion of Mr. Pipkin’s note where \nhe recorded that she was “feeling great.” [TR at 23.] The claimant testified that she did not \nreturn to the respondent-employer upon her release from care and that she was unable to \nsecure other employment before her release. \n\nS. GILLISPIE- H301917 \n5 \n \nQ:  When you got released, you had been paid up to that day you got \nreleased. Did you go back to KIPP Delta? \n A:  No, sir. \n Q:  Okay. Did you start looking for another job? \n A:  Yes, sir. \n Q:  And did you find one? \nA:  I went on four interviews and I got hired on all four, but when I \ntold them that I was still on the medical term, I can’t say for sure that \nI didn’t get hired but I’m almost certain that that’s why, because I’m \nstill on the medical— \n \nId. She clarified that she was seeking employment in October, before her release.  \n The claimant continues to work for Kids First; and she confirmed that her injury did \nnot disrupt her part-time work at a tax accounting business that she owns. She described \nthat work as seasonal and mostly around tax season. \n According to her testimony, the claimant was supposed to begin working for Kids \nFirst in January of 2024, but her start was delayed until February due to a snowstorm. She \ndescribed her work as limited “until I get off doctor care.” [TR at 26.] Asked again when she \nbegan working for Kids First, she answered, “I started February 5, and I did my application \nand got hired on October 13.” Id. \n The claimant’s cross examination continued: \nQ:  Okay. Now the—Page Five of your exhibit is from January 8\nth\n of \n’24. This is [Mr.] Pipkin again. \n A:  Uh-huh. \n Q:  And he says, “On her last visit, her pain had completely resolved.” \n A:  Uh-huh. \nQ:  It also says, “But over the last month, she’s gotten a new job that \nrequires her to drive a lot.” \nA:  Uh-huh. But I hadn’t started the job, though. When I went in \nthere, I told them, “I got a new job and it’s going to require me to drive \na lot. I need to be fixed.” That’s what I said to him. \nQ:  “She has taken a new job that requires her to drive a lot over the \nlast month.” So had you been working in January of ’24? \nA:  No, sir. No. So that’s what I’m saying. When that pain came and I \nwent to him, I told him, “I have taken a new job and it’s going to \nrequire me to drive a lot. This pain has started coming back, and I \nneed this pain to stop.” That’s what I went in there for because of \npain. \n Q:  “She noticed the pain and returned after having to drive.” \n\nS. GILLISPIE- H301917 \n6 \n \nA:  I haven’t drove. I—The new job was going to require me to drive. I \nhaven’t drove because I hadn’t started the new job. \n Q:  Do you have a claim against the employer Kids First- Mississippi? \nA:  I hadn’t started the job. My injury didn’t come from Kids First. My \ninjury came from KIPP. \n \n[TR at 27-28.] \nMedical and Documentary Evidence \nOn 20 November 2023, the claimant saw Mr. Pipkin at OrthoXpress in Tupelo, \nMississippi. The Chief Complaints are listed as Bilateral Hip Pain and Low Back Pain. \nThat note also includes: \nHPI \nSandra comes to the clinic today for follow-up of bilateral hip pain and low \nback pain. She does have a long history of low back pain. She was previously \ntreated by Brandy Blanton, NP, at OrthoXpress in Starkville beginning \nMarch 29\nth\n. She was treated for her left hip pain and left knee pain with \ninjections, oral medications, [and] physical therapy. She did have MRI results \nof the bilateral hips which were fairly unremarkable other than mild \ndegeneration of the right superior acetabular labrum but no tear. She was \nseen in our clinic on May 2\nnd\n and was diagnosed with lumbar radiculopathy, \nleft SI joint inflammation, and concern for lumbar spine HNP. At that time, \nher left SI joint was injected with Kenalog and lidocaine, she was given IM \nToradol, she was placed on diclofenac and baclofen, she was kept off of work, \nand she was sent for an MRI of her lumbar spine. She got tremendous relief \nfrom the SI joint injection. MRI did confirm small disc bulges at L3-L4, L4-\nL5, and L5-S1. She recently had LESI’s performed at multiple levels. This did \nhelp with her back pain. At the last visit, she was doing excellent and we \nwent her back to regular duty at work. Today, she is doing great and has very \nlittle pain other than sitting or standing for long periods of time. Her pain is \ncurrently 2/10. She reports numbness and tingling of the bilateral lower \nextremities. \n \nThe Assessment and Plan section listed (1) inflammation of SI joint, (2) lumbar \nradiculopathy, (3) overweight, (4) herniation of nucleus pulposus of lumbar \nintervertebral disc, and (5) pain in coccyx. The note continued: \nDiscussion Notes \nSandra is doing great today and reports no pain whatsoever other than long \nperiods of sitting or standing. She is very pleased with results of treatment, \nespecially the benefit she got from the LESIs and physical therapy. Today, I \n\nS. GILLISPIE- H301917 \n7 \n \nwill transition her to a home exercise program [...]. I encouraged her to \ncontinue to utilize a heating pad daily. I will refill both her anti-inflammatory \nmedication and muscle relaxers. I gave her an intramuscular injection of 60 \nmg Toradol today. I will release her from the clinic today, allowing her to \ncontinue regular duty at work. She is MMI today with PPI 0%. \n \n[Cl. Ex. No 1 at 1-3.] \n The claimant returned to the clinic on 8 January 2024. Her complaints were listed \nagain as hip pain and low back pain. These complaints appear as the reasons for her visits \nacross all of the appointments represented in the clinic notes made a part of this record.  \nAt those subsequent visits, her pain was consistently related to driving over long periods of \ntime for work.  \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness, \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \n \n \n\nS. GILLISPIE- H301917 \n8 \n \nA. THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT SHE IS ENTITLED TO ADDITIONAL MEDICAL \nTREATMENT. \n \n The claimant believes that she is entitled to additional medical benefits beyond the \ntreatment already provided. Employers must promptly provide medical services which are \nreasonably necessary in connection with the compensable injuries. A.C.A. § 11-9-508(a). \nHowever, injured employees have the burden of proving by a preponderance of the evidence \nthat medical treatment is reasonably necessary. Patchell v. Wal-Mart Stores, Inc., 86 Ark. \nApp. 230, 184 S.W.3d 31 (2004). What constitutes reasonable and necessary medical \ntreatment is a fact question for the Commission, and the resolution of this issue depends \nupon the sufficiency of the evidence. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 \nS.W.2d 790 (1996). A claimant may be entitled to additional treatment even after her \nhealing period is ended, if that treatment is geared towards management of a compensable \ninjury. Patchell, supra.  \nThe respondents contend that the claimant fell and injured her left knee at while at \nwork. They began providing benefits, including medical treatment coverage and TTD \npayments, thereafter. When she was released from care at MMI in November of 2023, all \nbenefits were terminated.  \nThe records do not suggest that the claimant’s left knee injury required any \nmanagement after her release from care at MMI. She testified extensively, if not almost \nexclusively, about experiencing additional pain related to her back and/or hips; but she did \nnot provide direct testimony as to how her left knee required any additional treatment since \nher release from care. Nor was she specific about what particular treatment(s) she believed \nwere reasonable and necessary for the treatment or maintenance of her left knee. The \nmedical records presented begin at the date of her release and only relate to the claimant’s \nsubsequent concerns about hip and back pain.  \n\nS. GILLISPIE- H301917 \n9 \n \nThe claimant has not shown that her left knee requires any reasonable or necessary \ntreatment since her release from care and the cessation of benefits. Accordingly, the \nclaimant has failed to prove by a preponderance of the evidence that she is entitled to \nadditional medical benefits. \nB. THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT SHE IS ENTITLED TO ADDITIONAL TTD BENEFITS. \n \nThe claimant’s compensable left knee injury is a scheduled one. A.C.A. § 11-9-\n521(a)(4). An employee who has sustained a compensable scheduled injury is entitled to \nTTD benefits \"during the healing period or until the employee returns to work, whichever \noccurs first . . . .\" § 11-9-521(a). Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, 41 \nS.W.3d 822 (2001). The healing period ends when the underlying condition causing the \ndisability has become stable and nothing further in the way of treatment will improve that \ncondition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). \nA claimant must prove her entitlement to TTD benefits by a preponderance of the \nevidence. A.C.A. § 11-9-705(a)(3). The credible medical evidence credibly establishes that \nthe claimant’s condition was stable on 20 November of 2023, when she was released from \ncare at MMI. Indeed, she acknowledged that she reported feeling great to Mr. Pipkin. The \npreponderance of the evidence establishes that her healing period ended on that time. She \nprovided no evidence supporting an ongoing entitlement to TTD benefits for her left knee \ninjury after her release from care. Accordingly, her claim for additional TTD benefits must \nfail. \nC.       THE CLAIMANT IS NOT ENTITLED TO AN ATTORNEY’S FEE. \nConsistent with the findings above, the claimant has failed to prove by a \npreponderance of the evidence that she is entitled to an attorney’s fee. \n \n\nS. GILLISPIE- H301917 \n10 \n \nV.  CONCLUSION \n Because the claimant failed to meet her burden of proof on any claim for additional \nbenefits, this claim is DENIED and DISIMSSED. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":18733,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301917 SANDER D. GILLISPIE, EMPLOYEE CLAIMANT KIPP DELTA COLLEGE PREP SCHOOL, EMPLOYER RESPONDENT EMPLOYERS INS. CO. OF WAUSAU/ LIBERTY MUTUAL GROUP, CARRIER/TPA RESPONDENT OPINION FILED 17 JANUARY 2025 Heard before Arkansas Workers’ Compensation Commissio...","outcome":"denied","outcomeKeywords":["granted:5","denied:6"],"injuryKeywords":["knee","back","hip","lumbar"],"fetchedAt":"2026-05-19T22:44:26.232Z"},{"id":"alj-H401547-2025-01-17","awccNumber":"H401547","decisionDate":"2025-01-17","decisionYear":2025,"opinionType":"alj","claimantName":"Nicholas Witherspoon","employerName":"Pulaski County Special School District","title":"WITHERSPOON VS. PULASKI COUNTY SPECIAL SCHOOL DISTRICT AWCC# H401547 January 17, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WITHERSPOON_NICHOLAS_H401547_20250117.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WITHERSPOON_NICHOLAS_H401547_20250117.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H401547 \n \n \nNICHOLAS WITHERSPOON, EMPLOYEE      CLAIMANT \n \nPULASKI COUNTY SPECIAL SCHOOL DISTRICT,  \nEMPLOYER                       RESPONDENT \n \nARK. SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA          RESPONDENT \n  \n \n \n \nOPINION FILED 17 JANUARY 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 8 January 2025 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nFriday, Edredge & Clark, LLP, Mr. Guy Wade, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 8 January 2025. This case relates to an alleged workplace injury \nsustained on or about 8 February 2024.  \n No testimony was taken, as the claimant did not appear. The respondents entered a \nnumber of documents supporting their motion into the record as Respondent’s Exhibit No 1 \n(23 pages of forms, filings, and correspondence). \nA First Report of Injury was filed by the respondents on 9 February 2024, and a \nForm AR-2 denying the claim was filed on 1 March 2024. In an email dated 5 March 2024, \nthe claimant informed the AWCC that he disputed the denial of his claim for benefits. Mr. \nGuy Wade entered an appearance on behalf of the respondents by way of a letter dated 21 \nJune 2024. Prehearing documents were sent to the parties on 26 June 2024. A letter dated \n\nWITHERSPOON- H401547 \n2 \n \n12 August 2024 recapitulates a request from the claimant to drop the pursuit of his claim. \nThe matter was returned to the Clerk of the Commission’s General Files, accordingly. \n[Resp. Ex. No 1.] \n The respondents filed a Motion to Dismiss for lack of prosecution on 4 October 2024, \nciting the applicable statute and rule. A hearing on the motion was set and notice was sent \nto the claimant via First Class mail and Certified Mail, consistent with the AWCC’s \npractices. When mailings are not accepted or undeliverable, they are appended to the inside \nof the claim’s file. I noted at the hearing that no returned mailings are contained in this \nfile. A review of the file, however, does reveal a record of the claimant communicating with \nthe Legal Advisor’s Division on 19 December 2024, when the present motion was \napparently discussed. \nThe respondents appeared on 8 January 2025, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of their \nmotion. The claimant did not appear to resist the dismissal of his claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \n \n \n \n \n\nWITHERSPOON- H401547 \n3 \n \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3408,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H401547 NICHOLAS WITHERSPOON, EMPLOYEE CLAIMANT PULASKI COUNTY SPECIAL SCHOOL DISTRICT, EMPLOYER RESPONDENT ARK. SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA RESPONDENT OPINION FILED 17 JANUARY 2025 Heard before Arkansas Workers’ Compensation Commission (AWCC) ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:44:28.303Z"},{"id":"full_commission-H305182-2025-01-16","awccNumber":"H305182","decisionDate":"2025-01-16","decisionYear":2025,"opinionType":"full_commission","claimantName":"Andrea Ewton","employerName":"Dardanelle Public Schools","title":"EWTON VS. DARDANELLE PUBLIC SCHOOLS AWCC# H305182 January 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Ewton_Andrea_H305182_20250116.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Ewton_Andrea_H305182_20250116.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H305182 \n \nANDREA EWTON, \nEMPLOYEE \n \nCLAIMANT \nDARDANELLE PUBLIC SCHOOLS,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSOCIATION \nWCT, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JANUARY 16, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nAugust 12, 2024.  The administrative law judge found that the claimant \nfailed to prove she sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission reverses the administrative law \njudge’s opinion.  The Full Commission finds that the claimant proved she \nsustained a compensable injury.  We find that the claimant proved she was \nentitled to reasonably necessary medical treatment and temporary total \ndisability benefits.     \nI.  HISTORY \n\nEWTON - H305182  2\n  \n \n \n Andrea Ewton, now age 41, testified that she became employed with \nthe respondents, Dardanelle Public Schools, in 2022.  The parties \nstipulated that the employee-employer-carrier relationship existed on \nAugust 15, 2023.  The claimant testified on direct examination: \nQ.  And you were an employee of the Dardanelle Public \nSchools on or about August 15, 2023? \nA.  Yes, sir. \nQ.  And how were you employed?  What was your job title? \nA.  Substitute custodial.   \nQ.  As a substitute custodial person for the Dardanelle Public \nSchools, what did you do on a day-to-day basis? \nA.  We – I cleaned bathrooms, the gym, Central Office, \ncafeteria, whatever we needed to clean.... \nQ.  How would you get your assignments? \nA.  They would call me and let me know ahead of time that \nthey needed me to work.   \nQ.  So were you called in the night before August 15\nth\n to come \ninto work? \nA.  Yes. \nQ.  Do you remember who called you? \nA.  Becca.   \nQ.  And is that Becca Manatt, the person who is here? \nA.  Yes. \nQ.  Okay.  And what was your shift as a part-time custodial? \nA.  We worked usually about four hours, from 6:00 in the \nmorning until after lunch or until school was let out, however \nlong they needed us.... \nQ.  On this particular instance when you were called in to \ncome in on August 15\nth\n, what were you given in terms of your \ninstructions on what your time would be? \nA.  Just however long they needed and to be there at 6 \no’clock in the morning.   \nQ.  So you were to report on August 15\nth\n at 6:00 a.m.? \nA.  Yes.   \nQ.  Did you do that? \nA.  Yes, sir. \nQ.  Where did you go? \nA.  Central Office.... \n\nEWTON - H305182  3\n  \n \n \nQ.  Are there multiple campuses and buildings that you would \nhave to go to? \nA.  Yes.   \nQ.  So when you reported to Central Office, what did you do \nwhen you got there? \nA.  I talked to Susie Howell for a minute and then I got the \nkeys and went and finished doing the rest of the offices in \nCentral.... \nQ.  About how long did you clean there? \nA.  It was an hour, maybe and hour and a half.   \nQ.  Okay.  And where did you go next? \nA.  To Intermediate across town on 2\nnd\n Street. \nQ.  Is that the Intermediate School? \nA.  Yes.   \nQ.  And did you drive your vehicle from Central Office to \nIntermediate School? \nA.  Yes.   \nQ.  And what did you do when you got to the Intermediate \nSchool? \nA.  I pulled in my parking spot and went in the building and got \nthe keys from Becca Moffitt. \nQ.  You said Becca Moffitt.  It is my understanding her name \nis Becca Manatt? \nA.  Manatt, Moffitt, it sounded the same, Andy.  But I got the \nkeys from Becca and went back out to my car and drove down \nto the gym to start cleaning it and it wasn’t the right set of \nkeys.... \nQ.  And did you have to fill out any paperwork at that time? \nA.  When I got to the office to talk to Becca, I had to fill out a \ntime sheet.... \nQ.  And where were you going to? \nA.  I was going to the gym and the agra building to clean.... \nQ.  And what did you do once you parked? \nA.  Once I parked, I got to – I went up to the gym to see if \nanybody was in there to let me in and there wasn’t because I \ndidn’t have the right set of keys.   \nQ.  So then what did you do? \nA.  I went back to my car to get my bottle of water and get the \nother set of keys that I needed to go start the agra building \nand the electronics building.   \nQ.  So did you make it to your car? \n\nEWTON - H305182  4\n  \n \n \nA.  No, sir, I did not.  I stepped off of the sidewalk and twisted \nmy ankle and broke it. \nQ.  So you stepped off the sidewalk walking from one of the \nbuildings back to your car? \nA.  Back to my car, yes.   \nQ.  And what happened when you stepped off the curb? \nA.  I twisted my ankle.... \nQ.  At the time you stepped off the curb and injured your ankle \n–  \nA.  Yes, sir. \nQ.  You were on the clock? \nA.  Yes. \nQ.  You were on the premises? \nA.  Yes, sir, \nQ.  Were you supposed to be working? \nA.  Yes, sir. \nQ.  If a member of the administration had come by and asked \nyou to take some sort of action, would you have been required \nto do so? \nA.  Yes, sir.     \n \n The respondents’ attorney cross-examined the claimant: \nQ.  When you got out of the car, you testified in your \ndeposition that you had your car keys and your personal \nphone with you.  Is that right? \nA.  Yes.   \nQ.  When your ankle twisted, did you trip on anything?  Did \nyou fall over anything? \nA.  No, ma’am.  I just stepped off the curb wrong and my \nankle twisted. \nQ.  No one was around when that happened? \nA.  No, ma’am.   \nQ.  So then you went back to the Intermediate Office.  Is that \nright? \nA.  Yes, ma’am.   \nQ.  That is when you reported it to April McGuire? \nA.  Yes, ma’am.   \nQ.  At that time was a call made to Misty Thompson? \nA.  Yes.   \n \n\nEWTON - H305182  5\n  \n \n \n Rebecca K. Manatt testified that she was employed as a secretary at \nDardanelle Intermediate School.  The claimant’s attorney examined Ms. \nManatt: \nQ.  And did you talk to [the claimant] on August 14, 2023, \nabout coming to the school as a substitute custodian the night \nbefore? \nA.  Well, I don’t really recall the date, that is a long time ago, \nbut, yes, I did call her to sub. \nQ.  And I know you may not recall the date, but do  you recall \nthe day she was injured? \nA.  Well, I do recall the day.  I am just not real sure about the \ndate.... \nQ.  If [the claimant] testified that she came to the school, the \nIntermediate School that day, came to your office and had to \nsign in, do they typically have to sign in? \nA.  Yes.... \nQ.  You don’t remember it, but that is consistent with what \nthey do? \nA.  Right.  Yes.   \nQ.  If that happened, would you give them keys as a substitute \ncustodian to be able to get in and out of buildings? \nA.  Well, not really.  I mean I keep keys, but I don’t for – like if \nthey go to the gym or those buildings, I don’t have those keys.  \nNormally the custodians have those.   \nQ.  As you sit here today, do you have any recollection as to \nwhether or not if you gave her any keys that morning? \nA.  I do not remember that, no. \nQ.  If she testified that you did, any reason to dispute that? \nA.  Well, I wouldn’t have any reason to dispute it.  This has \nbeen a long time ago and I don’t remember.   \n \n Misty Thompson testified that she was the respondent-carrier’s \nClaim Supervisor for Workers’ Compensation.  The record indicates that the \nclaimant gave a recorded statement to Misty Thompson on August 15, \n2023: \n\nEWTON - H305182  6\n  \n \n \n Q.  And what school district do you work for, Andrea? \n A.  Dardanelle. \n Q.  Which campus do you work at? \n A.  I’m a sub and I was working at the intermediate campus.... \n Q.  Do you need medical treatment for your injuries? \n A.  Yes.... \n Q.  Are you full time or part time? \n A.  Part time. \n Q.  And when were you injured? \n A.  Today. \n Q.  Today is August 15\nth\n, approximately what time, ma’am? \n A.  About 8:16, 8:15.   \n Q.  What time did you start work this morning? \n A.  6:00.... \n Q.  Have you notified your supervisor of this injury? \n A.  I’m in the nurse’s office now.  \nQ.  Okay, and who did you notify and approximately what \ntime? \nA.  I come straight to the nurse and I notified her as soon as it \nhappened.   \n Q.  And her name? \n A.  April McGuire.... \n Q.  And how were you injured, or what happened? \nA.  I stepped off of the curb and twisted my ankle and fell in \nthe parking lot.   \nQ.  And what were you doing at the time, I mean like taking \ntrash out, going to another building? \nA.  I was getting ready – I was going to my car to get \nsomething to drink that I had left in there, and when I stepped \noff of the curb I twisted my ankle and it’s all swollen.   \nQ.  Okay.   \nA.  It looks like it might be broke or whatever. \nQ.  And you were going to your personal vehicle? \nA.  Yes. \nQ.  And it was to get a drink for yourself? \nA.  Yes. \nQ.  Okay.  And that was something you had left in your car? \nA.  Yes, and I was going back out, I was going to go back in \nafter I got my drink, but then I –  \nQ.  Okay. \nA.  – couldn’t make it back in because I fell and messed up \nmy ankle.   \n\nEWTON - H305182  7\n  \n \n \nQ.  Was there any other purpose for you going out there, \nother than to get your drink? \nA.  No ma’am.   \nQ.  Okay.  Alright, and what body parts did you injure? \nA.  My right ankle.   \nQ.  Any other body parts injured? \nA.  No.  Well, my left knee is skinned up, but it’s –  \nQ.  Okay. \nA.  My left knee is skinned, but it’s not as bad as what my \nankle is.   \nQ.  Okay.  Alright.  And where were you at when this \noccurred? \nA.  Dardanelle Intermediate School.   \nQ.  Were you like in the parking lot, or? \nA.  I was at the gym.   \nQ.  Okay.  And you were outside in the parking lot, is that \ncorrect? \nA.  Yes. \nQ.  Okay.  Any witnesses? \nA.  No. \nQ.  Okay.  Have you completed the Form N yet, the \nEmployee’s Notice of Injury? \nA.  Yes, April has filled out the Employee’s Notice of Injury. \nQ.  That needs to be filled out by you, not by April, and so if \nyou will have her to give you a blank one, that’s supposed to \nbe filled out by the injured employee, if they’re able.  Alright, \nand Andrea, I do have to tell you, since you were going to \nyour vehicle to get your personal drink, that’s not something \nthat would be considered in the course and scope of \nemployment, so we would not be able to authorize treatment \nunder workers’ comp, because you have to be performing \nemployment services at the time an injury occurs, and if you \nwere going to your vehicle for the sole purpose of getting your \npersonal, you know, a drink for yourself, that’s not something \nthat would be considered in the course and scope of your \nemployment.  So if you do need to go to the doctor, that would \nneed to be under your personal insurance.   \nA.  Okay, thank you. \nQ.  Okay, and can I speak to April, and I’ll let her know also. \nApril:  This is April. \nQ.  Hey April, it’s Misty at Arkansas School Boards.  Hey, \nsince Ms. Ewton was going to her personal vehicle to get a \n\nEWTON - H305182  8\n  \n \n \ndrink for herself at the time the injury occurred, that’s not \nsomething that would be covered under workers’ comp, so I \ndid let her know that we would not be able to authorize any \ntreatment under workers’ comp.   \nApril:  Okay, we weren’t sure, and we were just going to you \nknow, fill it out and all that.   \nQ.  Oh, absolutely.  And yeah, that is the correct thing to do, \nbut I did just want to let you know, since she was sitting there \nwith you and I didn’t know if you would be, you know, are you \nusually the one that schedules the appointment? \nApril:  No, this is the first time I’ve ever had to even fill out the \nform, so we were just – Carla, the school nurse at the \nintermediate told me to just fill out the form, call the number, \nand then you guys would guide us from there.   \nQ.  Yeah, yeah.  And the Form N is to be completed, she said \nthat you had completed it.  That’s to be completed by the \ninjured employee, so if you’ll just give her a blank one and let \nher fill it out, and then if you ever have a situation where an \nemployee is not able to fill it out, if you will just give them the \nblank one and tell them to get it back to you as soon as \nthey’re able.... \nApril:  Okay, and even though you guys aren’t covering \nanything, you still want us to fill it out, right? \nA.  Yes ma’am, on every incident it needs to be filled out, yes \nma’am....   \n  \n The claimant’s attorney cross-examined Misty Thompson at hearing: \nQ.  Any doubt that Ms. Ewton was on the clock at the time of \nher injury? \n  A.  No, sir. \nQ.  Any doubt that she was in the time and space boundaries \nof her employment?  She was actually on the premises where \nshe was supposed to be.  Correct? \nA.  That is my understanding, yes. \nQ.  Do you contend that she was on a break at the time of her \ninjury? \nA.  No, sir. \n \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on August 15, 2023.  The ACCIDENT INFORMATION section of \n\nEWTON - H305182  9\n  \n \n \nthe Form AR-C indicated that an accident occurred at 8:15 a.m. on August \n15, 2023.  It was written on the Form AR-N that the claimant injured her \n“Right ankle & Left knee,” “Stepped off the curb in the gym parking lot, \nrolled right ankle and heard it pop.”   \n The claimant received emergency medical treatment on August 15, \n2023: \nPATIENT IS A 40 YO WHITE FEMALE WHO TWISTED HER \nRIGHT ANKLE AT WORK ABOUT 1 HOUR PTA.  PATIENT \nC/O SWELLING AND TENDERNESS OVER LATERAL \nASPECT OF RIGHT ANKLE.... \nMethod of Injury:  Other (TWISTED ANKLE WHILE \nSTEPPING OFF CURB).... \nRIGHT ANKLE XRAY:  SOFT TISSUE SWELLING, NO FX \nOR DISLOCATION.... \n \n The Differential Diagnosis on August 15, 2023 was “FX,ANKLE \nSPRAIN.”  The claimant was instructed, “COLD COMPRESSES FOR \nNEXT 3 DAYS, CONTINUE CURRENT PAIN MEDICATIONS, AVOID \nWEIGHT BEARING, WEAR SPLINT UNTIL HEALED, EXCUSE FROM \nWORK FOR NEXT 48 HOURS, FOLLOW UP WITH YOUR PCP.”   \nAn x-ray of the claimant’s right foot was taken on August 18, 2023 \nwith the following impression: \n1.  Small suspected avulsion fragment distal to lateral \nmalleolus with overlying soft tissue thickening. \n2.  No abnormality in the right foot.   \n \n An APRN noted on August 18, 2023, “Refer to ortho for suspected \navulsion fragment of the ankle.  Nonweightbearing until she [sees] them.” \n\nEWTON - H305182  10\n  \n \n \n Shawna Mott, LPN messaged the claimant on August 18, 2023: \n  Hey Andrea,  \nJessica said that you need to be off from work until you can \nbe seen and cleared by Orthopedics.  We’ve already placed \nthat referral and their office will be contacting you to set up an \nappointment.  We have a letter printed for you that will be at \nthe front desk.  You should also be able to access the letter \nthrough your mymercy.   \n \n Jessica M. Russell, APRN-CNP provided a Work/School Excuse on \nAugust 18, 2023: \n  To Whom it May Concern: \nAndrea Ewton was seen in my clinic on 8/18/2023.  Please \nexcuse Andrea from work until she can be seen and cleared \nby Orthopedics.... \n \n The record indicates that the claimant applied for unemployment \ninsurance benefits on September 12, 2023.  The APPLICATION FOR \nUNEMPLOYMENT INSURANCE BENEFITS indicated, “Last Date worked \nat your last job:  08/15/2023.”     \nA pre-hearing order was filed on May 29, 2024.  The claimant \ncontended, “The claimant sustained injuries to her right ankle and left knee \nin the course and scope of her employment which resulted in the need for \ntreatment beginning on or about August 15, 2023.  Respondents have \ncontroverted the claim.  Claimant contends she is entitled to temporary total \ndisability from August 16, 2023 to a date yet to be determined, reasonable \nand necessary medical treatment and attorney’s fees, and all other issues \nare reserved.”   \n\nEWTON - H305182  11\n  \n \n \n The respondents contended, “The respondents contend that \nclaimant did not suffer a compensable injury on August 15, 2023.  She was \nnot in the course and scope of employment when she injured her left knee \nand right ankle.”   \n The parties agreed to litigate the following issues: \n1.  Compensability of injury to claimant’s left knee and right \nankle on August 15, 2023. \n2.  Related medical. \n3.  Temporary total disability benefits from August 16, 2023 \nthrough a date yet to be determined.   \n4.  Attorney’s fee.   \n \n After a hearing, an administrative law judge filed an opinion on \nAugust 12, 2024.  The administrative law judge found that the claimant \nfailed to prove she sustained a compensable injury.  The administrative law \njudge denied and dismissed the claim.  The claimant appeals to the Full \nCommission.    \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.]... \n(B)  “Compensable injury” does not include:   \n(iii)  Injury which was inflicted upon the employee at a time \nwhen employment services were not being performed[.]   \n \n\nEWTON - H305182  12\n  \n \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable injury to her left knee and right ankle on August 15, \n2023.  Specifically, claimant was not performing ‘employment services’ at \nthe time of her injury.”  The Full Commission finds that the claimant proved \nby a preponderance of the evidence that she sustained a compensable \ninjury. \n The claimant was employed with the respondents as a part-time \ncustodian.  The parties stipulated that the employment relationship existed \non August 15, 2023.  The claimant testified that Becca Manatt, secretary at \nDardanelle Intermediate School, had contacted her the previous day and \n\nEWTON - H305182  13\n  \n \n \ninformed the claimant that her employment services were needed on \nAugust 15, 2023.  The claimant testified that she reported for work at 6:00 \na.m. on August 15, 2023.  The claimant began cleaning at the respondent-\nemployer’s Central Office before driving to the Intermediate School to work \nat that facility.  The claimant testified that she filled out a time sheet \nprovided by Ms. Manatt upon arriving at Intermediate School.  The claimant \ntestified that she proceeded to the respondent-employer’s gymnasium and \n“agra building” before realizing that she did not have the proper keys for \naccess into the buildings.  The claimant testified, “I went back to my car to \nget my bottle of water and get the other set of keys that I needed to start the \nagra building and the electronics building.”  On the way to her personal \nvehicle which was parked on the respondents’ premises, the claimant \ntripped and twisted her ankle.  The claimant sustained a right ankle sprain \nas a result of the accident. \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that she was performing employment \nservices at the time of the accidental injury on August 15, 2023.  An \nemployee is performing employment services when she is doing something \nthat is generally required by her employer.  Dairy Farmers of America v. \nCoker, 98 Ark. App. 400, 255 S.W.3d 905 (2007).  The Arkansas Court of \nAppeals uses the same test to determine whether an employee is \n\nEWTON - H305182  14\n  \n \n \nperforming employment services as it does when determining whether an \nemployee is acting within the course and scope of employment.  Pifer v. \nSingle Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).  The test is \nwhether the injury occurred within the time and space boundaries of the \nemployment, when the employee was carrying out the employer’s purpose \ndirectly or indirectly.  Id.  The Commission is bound to examine the activity \nthe claimant was engaged in at the time of the accident in determining \nwhether or not she was performing employment services.  Hill v. LDA \nLeasing, 2010 Ark. App. 271, 374 S.W.3d 268 (2010).   \n In the present matter, the Full Commission finds that the injury on \nAugust 15, 2023 occurred within the time and space boundaries of the \nclaimant’s employment, and that the claimant was at least indirectly \nadvancing her employer’s interests.  See Hudak-Lee v. Baxter County Reg. \nHosp., 2011 Ark. 31, 378 S.W.3d 77.  The claimant was on the respondent-\nemployer’s premises at the time of the accident and was “on the clock.”  \nThe claimant had signed in with the respondent-employer at the \nIntermediate School.  Whether or not the claimant had keys to the buildings \nat the time of the injury, she was getting a bottle of water from her personal \nvehicle in order to continue her work duties for the respondents in their \nfacilities.  Misty Thompson, a Claims Supervisor for the respondents, \nagreed that the claimant was “on the clock” at the time of the accidental \n\nEWTON - H305182  15\n  \n \n \ninjury, that the claimant was “within the time and space boundaries” of her \nemployment, and that the claimant was “not on a break.” \n The Full Commission finds that the claimant was within the time and \nspace boundaries of her employment at the time of the accidental injury.  \nSee Arkansas Methodist Hospital v. Hampton, 90 Ark. App. 288, 205 \nS.W.3d 848 (2005).  The claimant remained on the respondent-employer’s \npremises, was available to resume her duties as a custodian, had clocked \nin, and was available to work.  UAMS v. Hines, 2019 Ark. App. 557, 590 \nS.W.3d 183 (Ark. App. 2019).  See also Mineral Springs – Saratoga Sch. \nDist. v. Bell, 2023 Ark. App. 458 (Ark. App. Oct. 18, 2023).  The claimant \nstill had job duties to complete at the time of her accident.  Wal-Mart \nAssociates, Inc. v. Anderson, 2022 Ark. App. 12, 640 S.W.3d 4.   \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that she sustained a compensable injury.  \nThe claimant proved that she sustained an accidental injury causing \nphysical harm to the body.  The injury arose out of and in the course of \nemployment, required medical services, and resulted in disability.  The \ninjury was caused by a specific incident and was identifiable by time and \nplace of occurrence on August 15, 2023.  The claimant established a \ncompensable injury by medical evidence supported by objective findings, to \n\nEWTON - H305182  16\n  \n \n \ninclude soft tissue swelling in the right ankle, and “suspected avulsion \nfragment distal to lateral malleolus” shown on August 18, 2023.  \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she sustained a compensable injury.  The claimant \nproved that the medical treatment of record provided on and after August \n15, 2023 was reasonably necessary in accordance with Ark. Code Ann. \n§11-9-508(a)(Repl. 2012).  The evidence demonstrates that the claimant \nremained within a healing period and did not return to work beginning \nAugust 16, 2023 and continuing through June 22, 2024.  The claimant \ntherefore proved that she was entitled to temporary total disability benefits \nbeginning August 16, 2023 and continuing through June 22, 2024.  See \nArk. Code Ann. §11-9-521(Repl. 2012); Wheeler Constr. Co. v. Armstrong, \n73 Ark. App. 146, 41 S.W.3d 822 (2001).  The claimant’s attorney is entitled \nto fees for legal services in accordance with Ark. Code Ann. §11-9-\n715(a)(Repl. 2012).  For prevailing on appeal, the claimant’s attorney is \nentitled to an additional fee of five hundred dollars ($500), pursuant to Ark. \nCode Ann. §11-9-715(b)(Repl. 2012). \n \nIT IS SO ORDERED.  \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n\nEWTON - H305182  17\n  \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \n I must respectfully dissent from the majority opinion finding the \nclaimant suffered a compensable injury on August 15, 2023. \nThe claimant was injured on the respondent employer’s premises on \nAugust 15, 2023, when she fell in the parking lot while going to her car to \nget a drink.  At that time, the claimant was not performing employment \nservices and provided a recorded statement to the respondent carrier \nstating she had no reason to go to her car other than to get something to \ndrink.  This story would later change after the claimant obtained an \nattorney.  The claimant’s lack of credibility is clear throughout her testimony. \nIn his August 12, 2024 opinion, the administrative law judge found \nthe claimant was not a credible witness, and she failed to meet her burden \nof proving she sustained a compensable injury.  I agree. \nOur rules define a compensable injury as \"[a]n accidental injury . . . \narising out of and in the course of employment.\"  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  A compensable injury does not include an \"[i]njury which was \ninflicted upon the employee at a time when employment services were not \nbeing performed.\"  Ark. Code Ann. § 11-9-102(4)(B)(iii).  The Act, however, \nfails to define the phrase \"in the course of employment\" or the term \n\nEWTON - H305182  18\n  \n \n \n\"employment services.\"  Wood v. Wendy's Old Fashioned Hamburgers, \n2010 Ark. App. 307, 374 S.W.3d 785 (2010).  \nOur Supreme Court has held an employee is performing \n\"employment services\" when he or she \"is doing something that is generally \nrequired by his or her employer.\"  Texarkana Sch. Dist. v. Conner, 373 Ark. \n372, 284 S.W.3d 57 (2008).   \nThe Commission uses the same test to determine whether an \nemployee was performing employment services as it does when \ndetermining whether an employee was acting within the course of \nemployment.  Id.  Specifically, it has been held the test is whether the injury \noccurred \"within the time and space boundaries of the employment, when \nthe employee [was] carrying out the employer's purpose or advancing the \nemployer's interest directly or indirectly.\"  Id.  The critical inquiry is whether \nthe interests of the employer were being directly or indirectly advanced by \nthe employee at the time of the injury.  Id.  \nThe issue of whether an employee was performing employment \nservices within the course of employment depends on the particular facts \nand circumstances of each case.  Id.  In short, an employee is performing \nemployment services when engaged in the primary activity he or she was \nhired to perform, or in incidental activities that are inherently necessary for \nthe performance of the primary activity, or when an employee is performing \n\nEWTON - H305182  19\n  \n \n \nemployment services when he or she is engaging in an activity that carries \nout the employer's purpose or advances the employer's interests.  Olsten \nKimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997); \nHightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 \n(1997). \nIn the present case, the claimant’s initial statements regarding her \ninjury conflict with her later deposition and hearing testimony.  This is, at its \ncore, an issue of the claimant’s credibility.  \nIn workers’ compensation cases, a decision often rests solely on the \ncredibility of the claimant as a witness.  A determination of the weight and \ncredibility of a witness's testimony is exclusively within the province of the \nCommission.  Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 \n(1989).  \nThe Commission has the right to believe or disbelieve the testimony \nof any witness, and the Commission's decision is entitled to the weight we \ngive a jury verdict.  Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 \nS.W.2d 617 (1988).  Importantly, a claimant’s testimony is never \nuncontroverted.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d \n457 (1994). \nIn a recorded statement to the respondent carrier on August 15, \n2023, the claimant stated she was “going to my car to get something to \n\nEWTON - H305182  20\n  \n \n \ndrink that I had left in there, and when I stepped off the curb, I twisted my \nankle and it’s all swollen.”  When asked if there was any other purpose for \ngoing to her car, the claimant responded, “no ma’am.”  \nClaims Adjuster Misty Thompson recalls offering the claimant ample \nopportunity to address any additional, work-related reasons why she may \nhave been going to her car.  \nBy the time of the August 1, 2024 hearing, the claimant’s testimony \nhad changed.  At the hearing, the claimant testified she went to her car “to \nget my bottle of water and get the other set of keys that I needed to go start \nthe agra building and the electronics building,” The claimant also testified \nshe obtained those keys from Rebecca Manatt, the school secretary, that \nmorning.  \nShe previously testified at her deposition she was given the keys by \nthe school nurse, April.  Ms. Manatt testified she has no recollection of \ntalking to the claimant about a set of building keys or providing the claimant \nwith a set of keys, stating, “[n]ormally the custodians have those.”  \nWhile the claimant’s case hinges on the question of the “time and \nspace boundaries” of her employment, our Courts have consistently held \nevidence of an employee being injured on their employer’s premises is \ninsufficient to warrant a finding employment services were being performed. \nCV's Family Foods v. Caverly, 2009 Ark. App. 114, 304 S.W.3d 671 (2009) \n\nEWTON - H305182  21\n  \n \n \n(citing Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d \n608 (1997)).  Therefore, the critical inquiry is whether the interests of the \nemployer were being directly or indirectly advanced by the employee at the \ntime of the injury.  Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 \nS.W.3d 57 (2008). \nIn this case, it is obvious the claimant is seeking some way in which \nshe may have been furthering her employer’s interest by going to her car to \nget a drink.  Her testimony regarding why or how she had building keys in \nher vehicle has changed three times since her initial injury.  \nHer first statement is the most clear: The claimant was going to her \ncar for no other reason than to get her drink.  She was in no way furthering \nher employer’s interest in doing so.  This claim relies only on the claimant’s \nself-serving and unreliable testimony that has clearly evolved to suit the \nclaimant’s agenda.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":31503,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H305182 ANDREA EWTON, EMPLOYEE CLAIMANT DARDANELLE PUBLIC SCHOOLS, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WCT, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 16, 2025","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back","ankle","knee","sprain"],"fetchedAt":"2026-05-19T22:29:44.650Z"},{"id":"full_commission-H206243-2025-01-16","awccNumber":"H206243","decisionDate":"2025-01-16","decisionYear":2025,"opinionType":"full_commission","claimantName":"Mickey Mcnair","employerName":"Century Leasing","title":"McNAIR VS. CENTURY LEASING AWCC# H206243, H208493, H208492, & H206220 January 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/McNair_Mickey_H206243_H208493_H208492_H206220_20250116.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"McNair_Mickey_H206243_H208493_H208492_H206220_20250116.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H206243 \n \nMICKEY T. McNAIR, EMPLOYEE             CLAIMANT \n \nCENTURY LEASING, UNINSURED EMPLOYER RESPONDENT NO. 1 \n \nKIMBALL & THOMPSON PRODUCE, INC.,  \nEMPLOYER RESPONDENT NO. 2 \n \nAMTRUST NORTH AMERICA,     \nINSURANCE CARRIER/TPA                                                RESPONDENT NO. 2 \n \nCLAIM NO.  H208493 \n \nMICKEY T. McNAIR, EMPLOYEE              CLAIMANT \n \nKIMBALL & THOMPSON PRODUCE, INC.,  \nEMPLOYER            RESPONDENT  \n \nAMTRUST NORTH AMERICA,     \nINSURANCE CARRIER/TPA                                                           RESPONDENT  \n \nCLAIM NOS.  H208492 & H206220 \n \nMICKEY T. McNAIR, EMPLOYEE              CLAIMANT \n \nKIMBALL & THOMPSON PRODUCE, INC.,  \nEMPLOYER            RESPONDENT \n \nSUMMIT CONSULTING, INSURANCE CARRIER/TPA                  RESPONDENT  \n   \n \nOPINION FILED JANUARY 16, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE DAVID L. SCHNEIDER, Attorney at \nLaw, Fayetteville, Arkansas. \n \n\n \nMcNAIR - H206243/H208493/H208492/H206220  2\n  \n \nRespondents No. 1 represented by the HONORABLE WILLIAM C. FRYE, \nAttorney at Law, North Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted.   \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law Judge \nfiled July 24, 2024.  In said order, the Administrative Law Judge made the \nfollowing findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at a pre-hearing conference \nconducted on April 3, 2024 and contained in a pre-hearing order filed that \nsame date are hereby accepted as fact.  \n \n2. Claimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable injury to his right shoulder or right hand on \nOctober 8, 2020.  \n \n3. Claimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable injury to his right shoulder on January 8, 2021. \n \n4. Claimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable injury to his right shoulder on February 5, 2022.  \n \n5. Claimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable injury to his right shoulder on August 23, 2022.  \n \n \n\n \nMcNAIR - H206243/H208493/H208492/H206220  3\n  \n \n We have carefully conducted a de novo review of the entire record herein \nand it is our opinion that the Administrative Law Judge's July 24, 2024 decision is \nsupported by a preponderance of the credible evidence, correctly applies the law, \nand should be affirmed.  Specifically, we find from a preponderance of the \nevidence that the findings of fact made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the Full \nCommission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":3444,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H206243 MICKEY T. McNAIR, EMPLOYEE CLAIMANT CENTURY LEASING, UNINSURED EMPLOYER RESPONDENT NO. 1 KIMBALL & THOMPSON PRODUCE, INC., EMPLOYER RESPONDENT NO. 2 AMTRUST NORTH AMERICA, INSURANCE CARRIER/TPA RESPONDENT NO. 2 CLAIM N...","outcome":"denied","outcomeKeywords":["affirmed:3","denied:4"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:29:44.654Z"},{"id":"full_commission-H204393-2025-01-16","awccNumber":"H204393","decisionDate":"2025-01-16","decisionYear":2025,"opinionType":"full_commission","claimantName":"Shirley Sanford","employerName":"Arkansas Bldg. Srvs., LLC","title":"SANFORD VS. ARKANSAS BLDG. SRVS., LLC AWCC# H204393 January 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Sanford_Shirley_H204393_20250116.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Sanford_Shirley_H204393_20250116.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H204393 \n \nSHIRLEY A. SANFORD , EMPLOYEE  CLAIMANT \n \nARKANSAS BLDG. SRVS., LLC, EMPLOYER RESPONDENT \n \nACCIDENT FUND INSURANCE COMPANY,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED JANUARY16, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed July 10, 2024.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby \naccepted. \n \n3. The Claimant has not proven by the preponderance of the \nevidence that her claim was filed within the statute of limitations. \nTherefore, her claim is barred by the statute of limitations. \n\n \nSANFORD - H204393  2\n  \n \n \n4. Moreover, the Claimant has also not proven by the \npreponderance of the evidence that she sustained a \ncompensable injury arising out of and through the course of \nemployment. \n \n5. Based on my finding that 1.) the statute of limitations has passed \nbefore the filing of her claim, and 2.) that her alleged injuries did \nnot arise out of and through the course of employment, the \nremaining issues of reasonable and necessary medical \ntreatment, temporary total disability benefits, and a controverted \nattorney’s fee are moot and will not be addressed in this opinion. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's July 10, \n2024 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n \n \n \n\n \nSANFORD - H204393  3\n  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2775,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204393 SHIRLEY A. SANFORD , EMPLOYEE CLAIMANT ARKANSAS BLDG. SRVS., LLC, EMPLOYER RESPONDENT ACCIDENT FUND INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY16, 2025 Upon review before the FULL COMMISSI...","outcome":"affirmed","outcomeKeywords":["affirmed:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.658Z"},{"id":"full_commission-H104907-2025-01-15","awccNumber":"H104907","decisionDate":"2025-01-15","decisionYear":2025,"opinionType":"full_commission","claimantName":"Cedric Bennett","employerName":"Pine Bluff School District","title":"BENNETT VS. PINE BLUFF SCHOOL DISTRICT AWCC# H104907 January 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Bennett_Cedric_H104907_20250115.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Bennett_Cedric_H104907_20250115.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H104907 \n  \nCEDRIC BENNETT, \nEMPLOYEE \n \nCLAIMANT \nPINE BLUFF SCHOOL DISTRICT,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JANUARY 15, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nAugust 7, 2024.  The administrative law judge found that the claimant failed \nto prove he was entitled to additional medical benefits.  After reviewing the \nentire record de novo, the Full Commission finds that he was entitled to \nadditional medical treatment as recommended by Dr. Lovett.     \nI.  ADJUDICATION \n Cedric Bennett, now age 63, testified that he had been employed \nwith the respondents, Pine Bluff School District, for 28 years.  The parties \nstipulated that the employee-employer relationship existed on June 2, 2021.  \n\nBENNETT - H104907  2\n  \n \n \nThe claimant testified that he fell from a ladder after being hit by a rolling \nschool bus.  The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on June 2, 2021.  The ACCIDENT INFORMATION section of the \nForm AR-N indicated that an accident occurred at 2:00 p.m. on June 2, \n2021.  It was written on the Form AR-N that the claimant injured his “left \nhand, left elbow, tailbone, back, bumped head....Mechanic fell off of a \nladder while changing a bulb on the rear of the school bus.”     \nThe claimant treated at Jefferson Regional Medical Center on June \n2, 2021: \nFELL ABOUT 5 FEET OFF A LADDER.  AT WORK, \nWORKING ON A SCHOOL BUS, WHEN BRAKE GOT \nRELEASED AND BUS ROLLED ONTO HIM KNOCKING HIM \nOFF THE LADDER.  BUS ROLLED OVER LEFT HAND.  \nCOMPLAINS OF LEFT HAND, LEFT ELBOW AND LOWER \nBACK PAIN.  HIT HEAD.  NO LOSS OF CONSCIOUSNESS.  \nNO NECK PAIN.   \n \n The diagnosis on June 2, 2021 was “Hand crush injury, left, initial \nencounter.  Left elbow pain.  Acute low back pain.  Work related injury.”   \n The claimant treated at MedExpress on June 8, 2021.  Physical \nexamination showed swelling in the claimant’s left hand and the ball of his \nleft foot.  The assessment at that time included “Cervicalgia” and “Low Back \nPain.”  An emergency physician’s diagnosis on June 8, 2021 was “Post \nconcussive syndrome.  Cervical strain.  Wrist sprain.  Foot contusion.”  The \n\nBENNETT - H104907  3\n  \n \n \nclaimant was treated conservatively.  A CT of the claimant’s cervical spine \nwas taken on June 8, 2021 with the impression, “No fracture.”   \n The record indicates that the claimant treated with Dr. Victor Vargas \nbeginning June 17, 2021: \nIn brief, Patient presented today for an evaluation of lower \nback pain.   \nPatient is a 60-year-old male, who presents to my clinic for the \nfirst time to have an evaluation of injury at work. \nThe patient said that he was knocked off a ladder by the \nschool bus. \nHe said that he fell from the ladder landed on the back he \ncomplains of pain in the lumbar spine.   \nHe was taken to the Jefferson regional hospital he had a CT \nscan of the head and [had] an evaluation and he was told that \nno fractures happened.   \nHe was prescribed pain medications and muscle relaxer.   \nHe said that he has continued with pain and tingling and \nnumbness.  He has prior back pain.   \nAlso complains of pain in the left hand with pain and swelling \nthat has been gradually improving. \nAlso numbness and tingling.... \nX-rays of the lumbar spine AP, lateral, in standing position \nwere done in the clinic today, reviewed and interpreted which \nshowed there is acceptable alignment.   \nMultilevel mild or small anterior osteophyte formation.   \nThere is a sclerosis of the posterior elements and I cannot \nrule out unilaterality spondylolysis at L5 without \nspondylolisthesis.   \nX-rays of the left hand multiple views that show no evidence \nof fractures or dislocations mild osteoarthritic changes of the \ncarpal joints.  Osteoarthritis of the radial carpal joint with a \nsclerosis and osteophyte formation of the styloid process of \nthe radius and the scaphoid. \n \nAssessment \nLow back pain. \nDegenerative disc disease. \nFacet arthropathy. \n\nBENNETT - H104907  4\n  \n \n \nPossible L5 spondylolysis. \nLeft wrist sprain. \nLeft wrist mild to moderate osteoarthritic changes.   \n \n Dr. Vargas planned physical therapy, an LSO brace, medication, and \nadditional diagnostic testing.   \nAn MRI of the claimant’s lumbar spine was taken on July 7, 2021 \nwith the following impression: \n1.  Disc bulge at L5-S1 contacts and displaces the traversing \nleft S1 nerve root. \n2.  Spondylolysis at L5.  Marrow edema signal is noted in the \npars interarticularis on the right.   \n \n Dr. Vargas performed a lumbar steroid injection on July 7, 2021.   \nDr. Vargas reported on July 16, 2021: \nCedric Bennett is a 60 year old male who presents to discuss \nconcerns about their Back, that began on 06/02/2021.... \nPatient is a 60-year-old, male.  The patient said that he was \nknocked off a ladder by the school bus.  Patient presented \ntoday for follow-up.   \nHe also wants to be evaluated for left foot pain and a neck \npain.   \nThe patient has been seen before and after asked to be \nevaluated for a left wrist pain and lower back pain. \nThe patient stated that he is complaining of 1 month of pain at \nthe ball of the foot that increases with weightbearing and \nthrobbing sensation sometimes with tingling.   \nAlso he complains of neck pain that has been going on for 2 \nto 3 months and is getting worse.... \nHe said that the lower back pain is unchanged, the injection \nhelped only for 2 days.  The physical therapy made the back \npain worse.   \nContinue with numbness in the left lower extremity.... \nAssessment \nLow back pain. \n\nBENNETT - H104907  5\n  \n \n \nDegenerative disc disease.  With protrusion of the disc L5-S1 \nthen goes in close contact with the traversing nerve roots.   \nFacet arthropathy. \nL5 spondylolysis. \nLeft wrist sprain. \nLeft wrist mild to moderate osteoarthritic changes.   \nLeft foot pain secondary to metatarsalgia. \nNeck pain with degenerative disc disease.... \nRecommended management of the pain with physical \ntherapy.... \nThe patient is not at maximum medical improvement.   \nI found no evidence of objective findings of injury on the \n[complaints] of the left foot and the cervical spine.   \nPreviously we have evaluated the lower back pain which is an \nexacerbation of pre-existing condition.   \n \n Upon referral from Dr. Vargas, Dr. Gary Frankowski performed a Left \nTransforaminal Epidural Steroid Injection L5-S1 on July 30, 2021.   \n The claimant followed up with Dr. Vargas on August 4, 2021: \nI have discussed with the patient that we have found no \nobjective finding of injury of the lumbar spine however has \nbeen treated for an aggravation of the pre-existing condition \nbut he has had transient relief of the symptomatology.   \nI am considering that the patient has exhausted the options of \ntreatment conservatively to mitigate his symptoms of pain. \nHowever, the pain is multifactorial and I am considering \nprobably more more likely than not his symptoms are due to \nthe pre-existing condition.   \nConsequently, I think the patient is having relief of the \nsymptomatology with the physical therapy and I highly \nrecommended to continue physical therapy for the cervical \nspine and lumbar spine with extension of 3 weeks.   \nAfter that I would consider that the patient has exhausted the \noptions of treatment for conservative treatment and he can be \nconsidered at MMI when he finished a 3 more weeks of \nphysical therapy prescribed today.... \nThe patient is entitled to 0% impairment as a whole person.  \nBased on the Guides to the Evaluation of Permanent \n\nBENNETT - H104907  6\n  \n \n \nImpairment.  Fourth Edition.  From the American Medical \nAssociation.   \n \n Dr. Vargas reported on or about September 8, 2021: \nPatient presented today to the clinic however he has been \nreleased in the previous visit at MMI.   \nThe patient stated that he finished physical therapy last week.   \nHe complains of some headaches. \nI explained [to] the patient that the patient was released at \nmaximal medical improvement last visit and I have no further \nrecommendations and he is supposed to return to work on full \nduty no restrictions on 8/25/2021. \nFor further details refer to my previous visit on 8/4/2021. \n \n The claimant began treating with Dr. Heather L. Whaley at Pain \nTreatment Centers of America on October 26, 2021.  Dr. Whaley’s \nassessment included “Spondylosis” of the lumbosacral region and cervical \nregion.  Dr. Whaley prescribed medication. \n The claimant testified that the respondent-carrier did not authorize \nadditional medical treatment after May 6, 2022.    \n The claimant presented for treatment at Legacy Spine & \nNeurological Specialists on August 16, 2022:  “This 61-year-old male \npresents with low back and neck pain.  He reports that his low back and \nneck pain have been present for about a year and has progressively gotten \nworse.  He reports that the pain is in his low back and will radiate posteriorly \ndown both legs to his feet....In order to evaluate these complaints, we must \nobtain an MRI of the lumbar and cervical spine to rule out any structural \nabnormalities including lumbar and cervical stenosis, as well as for \n\nBENNETT - H104907  7\n  \n \n \nprocedural planning purposes.  We will also obtain x-rays of the lumbar and \ncervical spine.  We will have him follow up with one of our neurosurgeons \nonce we have obtained the necessary imaging.  In the meantime, he will \ncontinue his medication regimen.”      \n The claimant underwent an “MR Cervical Spine w/o Contrast” at \nPavilion MRI on September 7, 2022.  The findings included “straightening of \nthe cervical lordosis.”  The following conclusion resulted:  “Retrolisthesis, \ncentral protrusion with effacement of the ventral cord at the C3-4 and C4-5 \nlevels as well as uncovertebral hypertrophic degenerative changes and \nright facet hypertrophy at the C4-5 level with abutment of the exiting right \nC5 nerve.” \n An MRI of the claimant’s lumbar spine was also taken on September \n7, 2022 with the following conclusion: \nDominant findings are noted at the L5-S1 level with \nanterolisthesis, a broad-based disc bulge, central protrusion \nwith leftward orientation, posterior annular tear, left foraminal \nprotrusions and moderate to severe right and moderate left-\nsided facet hypertrophy with chronic bilateral spondylolysis \ncontributing to abutment of bilateral exiting L5 nerves and \nabutment of bilateral descending S1 nerves with possible \nmass effect upon the descending left S1 nerve.   \n \n Dr. Dominic Maggio reported in part on September 14, 2022, “We \nwill proceed with a left-sided L5-S1 selective nerve root block.”   \n\nBENNETT - H104907  8\n  \n \n \n Dr. Maggio stated on October 13, 2022, “We will proceed with \nbilateral SI joint injections per the Legacy protocol.”  The record does not \nindicate that Dr. Maggio’s treatments were effective.   \n Dr. Maggio noted on January 5, 2023, “We will proceed with a left-\nsided SI fusion.”  The record indicates that Dr. Maggio performed an SI-joint \nfusion on February 28, 2023.  The claimant reported some post-surgical \nimprovement in his physical condition.   \n The record contains a Change of Physician Order dated November \n17, 2023:  “A change of physician is hereby approved by the Arkansas \nWorkers’ Compensation Commission for Cedric Bennett to change from \nVictor Vargas, M.D. to Angela Lovett, M.D[.]”   \n Dr. Angela Lovett examined the claimant on December 4, 2023.  Dr. \nLovett performed a trigger point injection.         \nA pre-hearing order was filed on April 15, 2024.  According to the \npre-hearing order, the claimant contended, “The claimant contends that he \nachieved a change of physician through the Commission to Dr. Angela \nLovett.  Respondents paid the initial evaluation but have since controverted \nentitlement to ongoing treatment.”   \n The respondents contended, “Respondents contend that all \nappropriate benefits have been paid with regard to claimant’s injuries \nsustained on June 2, 2021.  Respondents took the position that additional \n\nBENNETT - H104907  9\n  \n \n \nmedical treatment is not reasonable and necessary on May 6, 2022.  If \nclaimant obtained treatment prior to that date the carrier was unaware of, \nthe treatment was unauthorized.  Additionally, claimant has preexisting \nproblems with his cervical spine, so if he needs additional treatment for his \nneck, it is not due to the June 2, 2021 injury.”   \n The parties agreed to litigate the following issue:  “1.  Claimant’s \nentitlement to ongoing/additional medical treatment.”   \n After a hearing, an administrative law judge filed an opinion on \nAugust 7, 2024 and found that the claimant failed to prove he was entitled \nto additional medical benefits.  The administrative law judge therefore \ndenied and dismissed the claim.  The claimant appeals to the Full \nCommission. \nII.  ADJUDICATION \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \n\nBENNETT - H104907  10\n  \n \n \nS.W.3d 252 (2003).  What constitutes reasonably necessary treatment is a \nquestion of fact for the Commission.  Wright Contracting Co. v. Randall, 12 \nArk. App. 358, 676 S.W.2d 750 (1984).  An employee who has sustained a \ncompensable injury is not required to offer objective medical evidence to \nprove he is entitled to additional benefits.  Ark. Health Ctr. v. Burnett, 2018 \nArk. App. 427, 558 S.W.3d 408. \n An administrative law judge found in the present matter, “3.  The \nclaimant failed to prove by a preponderance of the evidence that he is \nentitled to additional medical benefits.”  The Full Commission finds that the \nclaimant proved he was entitled to additional medical treatment as \nrecommended by Dr. Lovett.  The claimant testified that he had been \nemployed with the respondents, Pine Bluff School District, since 1996.  The \nparties stipulated that the employment relationship existed on June 2, 2021.  \nThe claimant testified that, while performing employment services for the \nrespondents, he fell from a ladder after being hit by a rolling school bus.  \nThe medical evidence of record corroborated the claimant’s testimony.  \nThere was no stipulation with regard to compensability, but the respondents \nstate on appeal that the claimant “sustained compensable injuries to his \nlower back, neck, left hand and foot” on June 2, 2021. \n Following the work-related accident as a result of which the claimant \nsustained compensable injuries to his lower back, neck, left hand, and foot, \n\nBENNETT - H104907  11\n  \n \n \nthe claimant received authorized, conservative treatment from Dr. Vargas \nbeginning June 17, 2021.  Dr. Vargas pronounced maximum medical \nimprovement and 0% permanent anatomical impairment on August 4, 2021.  \nIt is well-settled, however, that an employee may be entitled to additional \nmedical treatment after the end of his healing period, if said treatment is \ngeared toward management of the compensable injury.  Patchell v. Wal-\nMart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004).   \n The claimant testified that the respondent-carrier did not authorize \nadditional medical treatment after May 6, 2022.  The claimant began \ntreating at Legacy Spine & Neurological Specialists on August 16, 2022.  As \na result of his treatment at Legacy Spine & Neurological Specialists, the \nclaimant eventually underwent an SI joint fusion performed by Dr. Maggio \non February 28, 2023.  Nevertheless, the Full Commission reiterates that \nthe record contains a Form AR-N, EMPLOYEE’S NOTICE OF INJURY \nsigned by the claimant on June 2, 2021.  Once the employee has received \nhis Form AR-N, subsequent unauthorized medical expenses are not the \nemployer’s responsibility.  See Ark. Code Ann. §11-9-514(c)(3)(Repl. 2012); \nTempworks Management Services v. Jaynes, 2023 Ark. App. 147, 662 \nS.W.3d 280.  The Full Commission finds in the present matter that the \nclaimant’s treatment at Legacy Spine & Neurological Specialists was \nunauthorized and shall not be the respondents’ responsibility.  Said \n\nBENNETT - H104907  12\n  \n \n \nunauthorized treatment includes the surgical treatment provided by Dr. \nMaggio.   \n The claimant received a statutory change of physician to Dr. Lovett \non November 17, 2023.  Dr. Lovett examined the claimant on December 4, \n2023, and she performed a trigger point injection.  The record indicates that \nthe claimant received benefit from Dr. Lovett’s treatment.  The Full \nCommission finds that that treatment provided by Dr. Lovett was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nWe find that Dr. Lovett’s treatment recommendation was causally related to \nthe June 2, 2021 compensable injury and was not related to a prior injury or \npre-existing condition.          \n After reviewing the entire record de novo, therefore, the Full \nCommission finds that the claimant proved he was entitled to additional \nmedical treatment as recommended by Dr. Lovett.  We find that Dr. Lovett’s \ntreatment recommendations are reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  For prevailing on appeal to the \nFull Commission, the claimant’s attorney is entitled to a fee of five hundred \ndollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \n \n \n \n\nBENNETT - H104907  13\n  \n \n \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding that the \nclaimant is entitled to additional medical treatment as recommended by Dr. \nAngela Lovett. \nArk. Code Ann. § 11-9-508(a) requires an employer to provide an \nemployee with medical and surgical treatment \"as may be reasonably \nnecessary in connection with the injury received by the employee.\"  The \nclaimant has the burden of proving by a preponderance of the evidence the \nadditional treatment is reasonable and necessary.  Nichols v. Omaha Sch. \nDist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \n\nBENNETT - H104907  14\n  \n \n \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013). \n The claimant was initially seen at Jefferson Regional Medical Center \non June 2, 2021, where he complained of left hand, left elbow, and low-\nback pain. He did not complain of neck pain at that time.   \nApproximately six weeks after his on-the-job injury, on July 16, 2021, \nthe claimant treated with Dr. Victor Vargas, complaining of, among others, \nlumbar sacral pain.  Dr. Vargas diagnosed the claimant with “[d]egenerative \ndisc disease with protrusion of the disc L5-S1 then goes in close contact \nwith the traversing nerve roots” and facet arthropathy, believing this \ncondition to be an exacerbation of a pre-existing condition.  Dr. Vargas \nrecommended physical therapy and a left transforaminal injection at L5-S1 \nas a diagnostic and therapeutic tool.  \nThe claimant returned to Dr. Vargas for a follow-up on August 4, \n2021.  Dr. Vargas opined: \nI have discussed with the patient \nthat we have found no objective \nfinding of injury of the lumbar spine \nhowever has been treated for an \naggravation of the pre-existing \ncondition but he has had transient \nrelief of the symptomology. \n \nI am considering that the patient \nhas exhausted the options of \ntreatment conservatively to \nmitigate his symptoms of pain. \n\nBENNETT - H104907  15\n  \n \n \nHowever, the pain is multifactorial \nand I am considered probably \nmore likely than not his symptons \nare due to this pre-existing \ncondition. \n \nConsequently, I think the patient is \nhaving relief of the \nsymptomatology with the physical \ntherapy and I highly recommended \nto continue physical therapy for the \ncervical spine and lumbar spine \nwith extension of 3 weeks. \n \nAfter that I would consider that the \npatient has exhausted the options \nof treatment for conservative \ntreatment and he can be \nconsidered at MMI when he \nfinished 3 more weeks of physical \ntherapy prescribed today. \n \nWork status \nThe patient will be off work until \n8/25/21 where he will return to \nwork on full duty no restriction. \n \nImpairment rating \nThe patient is entitled to a 0% \npermanent impairment as a whole \nperson.  Based on the Guides to \nthe Evaluation of Permanent \nImpairment.  Fourth edition. From \nthe American Medical Association. \n \n Subsequent to his release by Dr. Vargas, the claimant used his \npersonal health insurance to obtain additional medical treatment, ultimately \nundergoing a left SI-Joint fusion performed by Dr. Dominic Maggio on \n\nBENNETT - H104907  16\n  \n \n \nFebruary 23, 2023. Prior to conducting surgery, Dr. Maggio obtained an \nMRI on September 7, 2022, which revealed \ndegenerative disease.  Of note at \nL5-S1 there is a grade 1 \nanterolisthesis.  There is moderate \nto severe left-sided, and moderate \nright-sided neural foraminal \nstenosis No central canal stenosis. \nNo other areas of significant \ncentral canal or neural foraminal \nstenosis.  There is preserved \nlumbar lordosis. \n \nThese records reflect no objective findings of ongoing traumatic \ninjury.  The record is clear that all treatment after Dr. Vargas’s release of \nthe claimant was for the claimant’s degenerative disc disease. \nWhen the claimant began treating with Dr. Lovett on December 4, \n2023, he reported chronic low back pain and chronic sacroiliac joint pain. \nDr. Lovett also assessed the claimant with radiculopathy and spondylolysis \nof the lumbar region and performed a trigger point injection at L4L5S1 [sic]. \nAs with the claimant’s previous physicians, Dr. Lovett did not indicate any \nfindings of acute injury, but rather her treatment clearly focused on the \nclaimant’s pre-existing degenerative condition. \nThe evidence is clear that any aggravation of the claimant’s pre-\nexisting degenerative condition had resolved when Dr. Vargas released him \nat MMI in August of 2021.  \n\nBENNETT - H104907  17\n  \n \n \nThe claimant’s subsequent doctors opined that the claimant suffered \nfrom degenerative changes and made no note of any traumatic injury.  The \nadministrative law judge in this matter gave appropriate weight to Dr. \nVargas’s opinion and accurately ruled that all treatment following August of \n2021 was for the claimant’s pre-existing condition. \nAccordingly, for the reasons set forth above, I respectfully dissent. \n  \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":23753,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H104907 CEDRIC BENNETT, EMPLOYEE CLAIMANT PINE BLUFF SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 15, 2025","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back","neck","cervical","strain","wrist","sprain","fracture","lumbar"],"fetchedAt":"2026-05-19T22:29:44.620Z"},{"id":"full_commission-H204558-2025-01-15","awccNumber":"H204558","decisionDate":"2025-01-15","decisionYear":2025,"opinionType":"full_commission","claimantName":"Vincent Walker","employerName":"Greenwood School District","title":"WALKER VS. GREENWOOD SCHOOL DISTRICT AWCC# H204558 January 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Walker_Vincent_H204558_20250115.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Walker_Vincent_H204558_20250115.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H204558 \n \nVINCENT WALKER, \nEMPLOYEE \n \nCLAIMANT \nGREENWOOD SCHOOL DISTRICT,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n  \nOPINION FILED JANUARY 15, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents appeal:  Dismissed. \n \n ORDER \n The respondents appeal an administrative law judge’s opinion filed \nAugust 20, 2024.  The  administrative law judge denied the respondents’ \nmotion to dismiss.  The Full Commission dismisses the respondents’ appeal \nbecause the administrative law judge’s order is not final or appealable.  For \nan order to be appealable, it must be final.  TEC v. Falkner, 38 Ark. App. \n13, 827 S.W.2d 661 (1992).  To be final, an order must dismiss the parties \nfrom the court, discharge them from the action, or conclude their rights as to \nthe subject matter in controversy.  American Mutual Insurance Co. v. \nArgonaut Insurance Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991).   \n\nWALKER - H204558  2\n  \n \n \n In the present matter, the administrative law judge’s Opinion Filed \nAugust 20, 2024 does not dismiss the parties, discharge them from the \naction, or conclude their rights as to the subject matter in controversy.  The \nFull Commission therefore dismisses the respondents’ appeal, because the \nadministrative law judge’s opinion is not final and appealable.   \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1924,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204558 VINCENT WALKER, EMPLOYEE CLAIMANT GREENWOOD SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 15, 2025","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.624Z"},{"id":"full_commission-H004886-2025-01-15","awccNumber":"H004886","decisionDate":"2025-01-15","decisionYear":2025,"opinionType":"full_commission","claimantName":"Lana Rogers","employerName":"United Parcel Service, Inc","title":"ROGERS VS. UNITED PARCEL SERVICE, INC. AWCC# H004886 & H202191 January 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Rogers_Lana_H007886_H202191_20250115.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Rogers_Lana_H007886_H202191_20250115.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n CLAIM NOS. H004886 & H202191 \n \nLANA D. ROGERS, EMPLOYEE  CLAIMANT \n \n \nUNITED PARCEL SERVICE, INC., EMPLOYER                        RESPONDENT \n \n \nLM INSURANCE CORPORATION, CARRIER RESPONDENT \n \n \n ORDER FILED JANUARY 15, 2025 \n \n \nUpon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas. \n \n \nClaimant appeared pro se. \n \n \nRespondents represented by the HONORABLE DAVID C. JONES, Attorney at Law, \nLittle Rock, Arkansas. \n \n ORDER \n \nPresently before the Commission is Respondents’ Motion to Dismiss \nAppeal to Full Commission and Incorporated Brief in Support.  \nAn appeal to the Full Commission is governed by Arkansas Code \nAnnotated §11-9-711. This statute provides, in part: \n(1) A compensation order or award of an administrative law judge or a \nsingle commissioner shall become final unless a party to the dispute \nshall, within thirty (30) days from the receipt by him or her of the order \nor award, petition in writing for a review by the full commission of the \norder or award. \n \nThe Claimant confirmed receipt of the ALJ Opinion by email on September \n18, 2024. The notice of appeal should have been received by the Clerk of the \nCommission no later than October 18, 2024, but was not filed until October 23, 2024. \n\nRogers-H004886 & H202191 2 \n \nAfter consideration of respondents’ motion and all other matters properly \nbefore the Commission, we find that respondents’ motion should be and is, hereby, \ngranted.  \nAccordingly, claimant’s appeal to the Full Commission is hereby dismissed \nand the file be returned to the Commission’s general files.  \nIT IS SO ORDERED. \n \n \n                                  \nSCOTTY DALE DOUTHIT, Chairman \n \n \n                                  \nM. SCOTT WILLHITE, Commissioner \n \n \n                                  \nMICHAEL R. MAYTON, Commissioner","textLength":1879,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. H004886 & H202191 LANA D. ROGERS, EMPLOYEE CLAIMANT UNITED PARCEL SERVICE, INC., EMPLOYER RESPONDENT LM INSURANCE CORPORATION, CARRIER RESPONDENT ORDER FILED JANUARY 15, 2025 Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas. Cl...","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.629Z"},{"id":"alj-H403662-2025-01-15","awccNumber":"H403662","decisionDate":"2025-01-15","decisionYear":2025,"opinionType":"alj","claimantName":"James Chapman","employerName":"White River Health System, Inc","title":"CHAPMAN VS. WHITE RIVER HEALTH SYSTEM, INC. AWCC# H403662 January 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CHAPMAN_JAMES_H403662_20250115.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CHAPMAN_JAMES_H403662_20250115.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H403662 \nJAMES L. CHAPMAN, EMPLOYEE     CLAIMANT \n \nWHITE RIVER HEALTH SYSTEM, INC. \nEMPLOYER         RESPONDENT  \n \nSI ADMINISTRATOR/RISK MANAGEMENT  \nRESOURCES, INSURANCE CARRIER/TPA    RESPONDENT \n \nOPINION FILED JANUARY 15, 2025 \nHearing before Administrative Law Judge, James D. Kennedy, on the 4\nth\n day of \nDecember 2024, in Batesville, Arkansas. \nClaimant is Pro Se. \nRespondents are represented by Casey Castleberry, Attorney at Law, Batesville, \nArkansas. \nSTATEMENT OF THE CASE \n A hearing was conducted on the 4\nth\n day of December 2024, to determine the issue \nof additional reasonable and necessary medical treatment and temporary total disability \nfrom May 25, 2025, to a date to be determined. A copy of the Pre-hearing Order dated \nOctober 1, 2024, was marked “Commission Exhibit 1” and made part of the record without \nobjection. The Order provided that the parties stipulated as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. An employer/employee/carrier relationship existed on May 23, 2024, when \nthe claimant sustained a compensable injury to his right ring finger. \n \n3. Respondents have accepted the claim as a compensable medical only claim \nand have paid $1,128.55 in medical expenses  \n \n 4.  The claimant earned an hourly wage of $13.39 and worked a forty (40) week. \n\nJames L. Chapman – H403662 \nThe  claimant’s  and  respondent’s  contentions were set  out  in  their  respective \nresponses  to  the  Pre-hearing  questionnaire and made  a  part  of  the  record  without \nobjection. The claimant contends that he was performing his job duties on May 23, 2024, \nsterilizing and cleaning a sink area in the operating room, when he wiped downward, and \nseverely sliced his ring finger on his dominant hand.  He further contended that he was \nwrongfully terminated due to filing a workers’ compensation claim on May 25, 2024, and \nhad been unemployed from that date until a date to be determined.  The respondent's \ncontended that the claimant’s injury on May 23, 2023, was transitory and temporary and \nthat he was released to return to work on May 25, 2024.  The claimant’s current problems, \nif any, were not causally related to his compensable injury of May 23, 2024.  Respondent \nhas accepted the claim as a compensable medical expense only claim and contend that \nno further benefits are owed to the claimant.       \n The sole witness to testify was the claimant, James L. Chapman.  The claimant \ndid not introduce any documents into the record, but the respondents introduced twenty-\none pages of documents into the record without objection, and these documents included \nthe documents that the claimant had brought to the hearing to introduce.  From a review \nof the record as a whole, to include medical reports and other matters properly before the \nCommission and having had an opportunity to observe the testimony and demeanor of \nthe witness, the following findings of fact and conclusions of law are made in accordance \nwith Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n\nJames L. Chapman – H403662 \n2. That an employer/employee/carrier relationship existed on May 23, 2024, \nwhen the claimant sustained a compensable injury to his right ring finger \nwhich the respondents accepted as medical only. \n \n3. The claimant earned an average hourly wage of $13.39 and worked a forty \n(40) hour week.  \n \n4. The respondents have paid the sum of $1,128.55 in medical expenses. \n \n5. That the claimant has failed to satisfy the required burden of proof to prove by        \na   preponderance   of   the   evidence   that   additional   medical   treatment   is \nreasonable and necessary for the compensable ring finger wound. \n \n6. That the claimant has failed to satisfy the required burden of proof to prove by \na preponderance of the evidence that he is entitled to temporary total disability \nfrom May 25, 2024, to a date to be determined. \n \nREVIEW OF TESTIMONY AND EVIDENCE \nThe claimant, James L. Chapman, was the sole witness to testify.  He testified \nthat he  was  happy  to  have  been  working  for  the  respondent  and  was  performing  his \nduties, wiping down an area, when he sliced his finger “really bad.” He was wiping and \nsanitizing the sink area where the doctors washed their hands. His job was to turn the \noperating rooms. “So, I sliced my finger and one of the surgical techs come - - one of my \nformer employees came and butterflied it. It started bleeding really bad and they wrapped \nit up, sent me to HR to do the workers’ compensation thing. I went to the emergency \nroom. They put glue, glue in it, gave me a day off, told me to return back to work.” Later \nafter  working  around  water,  the  glue  opened  up  and  I  stated I  wished  that  they  had \nstitched it up. He went on to provide that he felt it was impossible to keep his hands dry \nand he figured he wasn’t getting a fair shake because his primary doctor also worked for \nthe respondent. He felt he needed to go to an outside doctor, so he obtained one in Heber \n\nJames L. Chapman – H403662 \nSprings. He testified that he made an appointment with the doctor and when he told the \nrespondent about the appointment, he was terminated. (Tr. P. 8, 9) \nUnder cross examination, he admitted injuring his finger on May 23, 2024, and \nthen being seen in the ER on that day.  He also admitted that the ER doc gave him a note \nthat  released  him  to  return  to  work  on  May  25.  Sometime  after  that,  he  requested  a \nchange of physician to a Dr. Henry Wallace in Heber Springs, and an appointment was \nmade for the claimant to see Dr. Wallace on July 11. He further agreed that he did not \nmake the appointment because he couldn’t. He went on to testify that he suffered from \ntotal disability  due  to  mental  and  physical  impairments under the  Social  Security \nAdministration. He stated that his mother was killed three days before his birthday and at \nthat time “My mother got killed in front of me, so my body got a funny way of letting me \nknow when that time comes around and I’m going in and out, going in and out. I made \nthe appointment, missed it.” “It was when I was a child, so - - And she got raped, murdered \nright in front of me, you know, so - - three days from my birthday, so that’s kind of tough \ntime for me.  You guys don’t know that you know.”  (Tr 10, 11) \nHe admitted that he did not make an effort to change his appointment.  He again \nreiterated that “I go in and out, man, so I required a caretaker, but I had a problem with \nthe  caretaker  where  she  could  no  longer  be  my  caretaker.  She  took  care  of  my \nappointments and things of that nature, you know, getting me to my appointments.”  The \nclaimant wasn’t sure if he had seen any other medical professionals in regard to his finger.  \nHe agreed that he was actually terminated on June 3. (Tr. 12, 13) \nIn regard to the documentary evidence, the First Report of Injury provided that \nthe claimant was injured on May 23, 2024, when he cut his finger on a sharp object while \n\nJames L. Chapman – H403662 \nwiping down a sink area. The N Form corresponded to this information. (Resp. Ex. 1, P. \n1 - 3) The claimant filed a Form C on or about June 6, 2024, describing his injury as he \ntestified, and stated that he was asking for additional medical, temporary total disability, \nand attorney fees. (Resp. Ex. 1, P. 6)   \nA  letter  from  Risk  Management  dated  June  5,  2024, provided that  it  was  their \nunderstanding that the claimant did not wish to return to the respondent for treatment and \nthey offered to make the claimant an appointment with a physician that was not affiliated \nwith  the  respondent.  (Resp.  Ex.  1,  P.  7) A Change  of Physician  Order  to  Dr.  Henry \nWallace was obtained from the Commission, dated the 24\nth\n day of June 2024. (Resp. Ex. \n1, P. 10, 11) The employer also filed a Form 2, dated June 10, 2024, stating that this was \na medical only claim. (Resp. Ex. 1, P. 12) \nA White River Health Personnel Report provided that the claimant was given off \nthe day of Friday following his injury. The next day of available work was the following \nTuesday and when the claimant did not appear for work, he was contacted and responded \nsaying that he was going through some stuff and needed to speak to workmans’ comp \nbefore returning to work.  The claimant came to work on May 29 and the 30\nth\n but left early \ndue to the fact that he had received a ride from another employee. On May 31, he made \nHR aware that he would not be to work due to the pain becoming extreme in his finger. \n(Resp. Ex. 1, P. P. 13, 14) \nThe Patient Registration Form for the claimant on his visit to the respondent’s \nER on May 23, 2024, provided that the claimant cut his right ring finger while cleaning at \nwork and that he suffered from a simple .5 cm superficial finger laceration, that he was to \n\nJames L. Chapman – H403662 \nkeep the area clean and dry, that the Dermabond used to treat the cut would come off on \nits own, and that he could return to work on May 25, 2024. (Resp. Ex. 1, P.  15 – 21) \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn the present matter, the parties stipulated the claimant sustained a compensable \ninjury to his right ring finger on May 23, 2024.  The claimant is therefore not required to \nestablish “objective medical findings” in order to prove that he is entitled to additional \nbenefits. Chamber Door Indus., Inc. v Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997) \nIn determining whether the claimant has sustained his required burden of proof, \nthe  Commission  shall  weigh  the  evidence  impartially,  without  giving  the  benefit  of  the \ndoubt  to either  party.   Ark.  Code  Ann  11-9-704.  Wade v. Mr. Cavananugh’s, 298  Ark. \n364, 768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence \non all issues before it into findings of fact. Weldon v. Pierce Brothers Construction Co., \n54 Ark. App. 344, 925 S.W.2d 179 (1996). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe  Arkansas  Workers’  Compensation  Act  and  must  sustain  that  burden  by  a \npreponderance of the evidence. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 635 \nS.W. 2d 823 (1982).  Preponderance of the evidence means the evidence having greater \nweight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark App. 263, \n101  S.W.3d  252  (2003).    Further,  pursuant  to  Ark.  Code  Ann.  11-9-509  (a),  medical \nbenefits owed under the Workers’ Compensation Act are only those that are reasonable \nand necessary.  Employers must promptly provide medical services which are reasonably \nnecessary for treatment of compensable injuries. A.C.A. 11-9-508 (a).  However, injured \n\nJames L. Chapman – H403662 \nemployees  have  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  the \nmedical treatment is reasonably necessary for the treatment of the compensable injury. \nOwens  Plating  Co.  v.  Graham,  102  Ark.  App.  299,  284  S.W.  3d  537  (2008).    What \nconstitutes reasonable and necessary treatment is a question for the Commission. Anaya \nv. Newberry’s 3N Mill,  102  Ark.  App.  119,  282  S.W.  3d  269  (2008).    When  assessing \nwhether medical treatment is reasonably necessary for the treatment of a compensable \ninjury,  we  must  analyze  both  the  proposed  procedure  and  the  condition  it  is  sought  to \nremedy.  See Wright  Construction  Co.  v.  Randall,  12  Ark.  App  358,  676  S.W.2d  750 \n(1984) Also, the respondent is only responsible for medical services which are casually \nrelated to the compensable injury.  Treatments to reduce or alleviate symptoms resulting \nfrom a compensable injury, to maintain the level of healing achieved, or to prevent further \ndeterioration  of  the  damage  produced  by  the  compensable  injury  are  considered \nreasonable  medical  services. Foster  v.  Kann  Enterprises,  2019  Ark.  App.  746,  350 \nS.W.2d 796 (2009).   \nIn the present matter, the claimant was seen at the respondent’s ER on the day of \nthe incident and the ER records provide that a .5 cm superficial wound was glued shut.  \nHe was given the following day off and there were then a few days before he was required \nto return to work, which he did but not for a full day.  He continued to complain with pain \nand felt that he was not getting a fair shake for his treatment with a physician associated \nwith the respondent, so a Change of Physician Order was obtained and an appointment \nwas made with a physician in Heber Springs.  The claimant admitted that he never made \nthe appointment. There was no evidence in the record to recommend either more or a \n\nJames L. Chapman – H403662 \ndifferent type of treatment, with the exception of the claimant’s statement where he stated \nthat he should have received stitches for his wound.  \nBased upon the above evidence and the applicable law, the claimant has failed to \nsatisfy the  required  burden  of  proof  to  prove  by  a  preponderance  of  the  evidence that \nadditional medical treatment is reasonable and necessary for the compensable ring finger \nwound. \nIn regard to the issue of temporary total disability regarding the claimant’s .5 cm \nsuperficial cut to the claimant’s ring finger, the treating physician gave the claimant the \nfollowing day off and told him that he could then return to work.  Due to the schedule, the \nclaimant was not required to return to work until a few days later.  At that time, he caught \na ride into work for a couple of days with another employee but had to leave early because \nthe  employee  was  sent  home  early  for  some  reason.  The  claimant felt that he wasn’t \ngetting a fair shake with treatment by the physician affiliated with the respondent, so an \nappointment with an out-of-town physician was set up, but the claimant failed to make the \nappointment and failed to attempt to set up another appointment. \nThe claimant contends that he is entitled to temporary total disability from May 25, \n2024,  to  a  day  to  be  determined.    It  appears  that  suitable  work  was  available  with  the \nrespondent.  A.C.A. 11-9-526 provides that if an injured employee refused employment \nsuitable to his or her capacity offered to or procured for him or her, he or she shall not be \nentitled to any compensation during the continuance of the refusal, unless in the opinion \nof  the  Workers’  Compensation  Commission,  the  refusal  is  justifiable.    Suitable \nemployment is a condition precedent to applying Ark. Code Ann. 11-9-526. It is also noted \nthat it is the function of the Commission to determine the credibility of the witnesses and \n\nJames L. Chapman – H403662 \nthe weight to be given their testimony.  Johnson v. Riceland Foods, 47 Ark. App 71, 844 \nS.W.2d626 (1994) Furthermore, the Commission is not required to believe the testimony \nof the claimant or any other witness but may accept and translate into findings of fact only \nthose portions of the testimony it deems worthy of belief.  Here, the weight of the credible \nevidence is sufficient to show that suitable employment was in fact available and that a \n.5  cm  superficial  cut was  not  sufficient  to  prevent  the  claimant  from  returning  to  work.  \nConsequently, the claimant has failed to satisfy the required burden of proof to prove by \na preponderance of the evidence that he is entitled to temporary total disability from May \n25, 2024, to a date to be determined. \nBased  upon  the  above  evidence  and  the  applicable  law,  and  after  weighing  the \nevidence  impartially,  without  giving  the  benefit  of  the  doubt  to  either  party, there  is  no \nalternative but to find that the claimant has failed to satisfy the required burden of proof \nby  a  preponderance  of  the  evidence  that additional  medical  treatment  is  reasonably \nnecessary  for  the  treatment  of  the  compensable  injury.   In addition,  after  weighing the \nevidence  impartially  and  applying  the  applicable  law,  without  giving  the  benefit of  the \ndoubt to either party, it is found that the claimant has failed to satisfy the required burden \nof proof by a preponderance of the evidence that he is entitled to temporary total disability \nfrom May 25, 2024, to a date to be determined.  If not already paid, the respondents are \nordered to pay the cost of the transcript \nIT IS SO ORDERED. \n      ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":16720,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H403662 JAMES L. CHAPMAN, EMPLOYEE CLAIMANT WHITE RIVER HEALTH SYSTEM, INC. EMPLOYER RESPONDENT SI ADMINISTRATOR/RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 15, 2025 Hearing before Administrative Law Judge, James D. Ken...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:44:21.932Z"},{"id":"alj-H305020-2025-01-15","awccNumber":"H305020","decisionDate":"2025-01-15","decisionYear":2025,"opinionType":"alj","claimantName":"Klaressa Thompson","employerName":"Nidec Motor Corporation","title":"THOMPSON VS. NIDEC MOTOR CORPORATION AWCC# H305020 January 15, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/THOMPSON_KLARESSA_H305020_20250115.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOMPSON_KLARESSA_H305020_20250115.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H305020 \n \nKLARESSA D. THOMPSON, Employee                                                         CLAIMANT \n \nNIDEC MOTOR CORPORATION, Employer                                           RESPONDENT \n \nTRAVELERS INSURANCE CO., Carrier                                                  RESPONDENT                                                 \n \n \n \n OPINION FILED JANUARY 15, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On December  2,  2024,  the  above  captioned  claim  came  on  for  hearing  at Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on January 10, 2024 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The employee/employer/carrier relationship existed among the parties on July \n24, 2023. \n Subsequent to the hearing, the parties agreed to stipulate that claimant earned an \naverage weekly wage of $727.00 which would entitle her to compensation at the rates of \n\nThompson – H305020 \n \n 2 \n$485.00 for total disability benefits and $364.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injury to claimant’s right shoulder on July 24, 2023. \n2.    Related medical. \n3.    Temporary total disability benefits from July 25, 2023 through a date yet to  \nbe determined. \n4.    Attorney’s fee. \n The claimant contends she sustained a compensable injury to her right shoulder \non July 24, 2023.  She contends she is entitled to temporary total disability benefits from \non or about July 25, 2023 until a date yet to be determined and reasonably necessary \nmedical  treatment.    Claimant  contends  that  her  attorney  is  entitled  to  an  appropriate \nattorney’s fee. \n The respondents contend that the claimant did not sustain a compensable injury \nwithin the course and scope of her employment. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non January 10, 2024 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n\nThompson – H305020 \n \n3 \n \n 2.       The parties’ stipulation that claimant earned an average weekly wage of \n$727.00 which would entitle her to compensation at the rates of $485.00 for total disability \nbenefits and $364.00 for permanent partial disability benefits is also hereby accepted as \nfact. \n 3.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she suffered a compensable injury to her right shoulder on July 24, 2023.   \n 4.      Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injury.   \n 4.   Claimant has failed to prove by a preponderance of the evidence that she is \nentitled to temporary total disability benefits as a result of her compensable injury. \n \n \n FACTUAL BACKGROUND \n At  the  time  of  the  hearing  the  claimant  was  a  31-year-old  woman  who  began \nworking  for  respondent  in  September  2020.    She  worked  at  a  job  that  required  her  to \nremove motor coils that had been wound in a machine.  Claimant testified that on July 24, \n2023, she was lifting a very large coil off of a machine when she felt a sharp pain in her \nright  shoulder.    Claimant  testified  that  she  was  unable  to  continue  lifting  the  coils  and \nreported this incident.   \n After  reporting  the  injury,  claimant  was  sent  by  Samuel  Norman,  Safey  and  IT \nManager  for  respondent,  to  see  James  McWilliams,  ANP.    Claimant  was  seen  by \nMcWilliams that day and he initially noted that claimant was six to eight weeks pregnant.  \nHe  diagnosed claimant’s  right  shoulder  condition  as  impingement  syndrome  and \n\nThompson – H305020 \n \n4 \n \nrecommended an MRI scan.  In addition, he also prescribed medications; the use of a \nsling;  ice/cold  packs;  and  rest.    McWilliams  also  indicated  that  claimant  should  refrain \nfrom working for ten days.   \n McWilliams’ note contains an addendum dated July 25, 2023, in which he indicates \nthat he was informed by respondent that it would be able to accommodate claimant with \nlight duty work without the use of her injured right arm.  McWilliams indicated that he was \nconsenting  to  that  change  as  long as  claimant  rests  the  right  arm  in  a  sling.   Claimant \ntestified that she did return to work for respondent and was placed in a job using her left \nhand  to  clean  hand  railings  and machinery.   Claimant testified  that  she was  physically \nable to perform this job for only five days before she was terminated by the respondent.  \nInitially,  claimant  testified  that  she  was  not  physically  able  to  perform  this  job,  but \nsubsequently  indicated  that  she  became  sick  from  the  smell  of  the  cleaning  solution.  \nClaimant has not worked for respondent or any other employer since that time. \n Claimant returned to McWilliams on August 1, 2023 and he noted that claimant’s \npregnancy limited her diagnostic and treatment options.  He again diagnosed claimant’s \ncondition as right shoulder impingement syndrome and recommended an MRI scan.  In \na  letter  dated  October  12,  2023,  McWilliams  indicated  that  claimant’s  symptoms  of \nshoulder impingement could be caused by a variety of conditions.  He again noted that \nher pregnancy was complicating further evaluation and that without the benefit of imaging \nthe only recourse would be an empirical diagnosis by a specialist or by waiting out the \npregnancy until imaging was determined to be safe.   \n On November 15, 2023, claimant was evaluated by Dr. Steven Forest, her primary \ncare  physician.    Dr.  Forest  assessed  claimant’s  condition  as  right  supraspinatus \n\nThompson – H305020 \n \n5 \n \ntenosynovitis  and  right  shoulder  pain.    He  referred  claimant  to  Dr.  Kari  Cordell,  an \northopedic surgeon in Hot Springs, whose initial evaluation occurred on January 11, 2024.  \nDr. Cordell assessed claimant’s condition as right shoulder pain and adhesive capsulitis \nof the right shoulder.  She recommended that claimant discontinue the use of her sling \nand referred claimant to physical therapy for adhesive capsulitis. \n Claimant’s initial physical therapy examination occurred on May 20, 2024, and she \ncontinued  to  receive  physical  therapy  for  a  period  of  time.    On  June  7,  2024,  claimant \nfinally under an MRI scan of her right shoulder.  The MRI report contains the following \nnotation: \n  IMPRESSION: \n  Tendinosis of the supraspinatus tendon, without evidence \n  of definite rotator cuff tear. \n \n \n The physical therapist’s note of August 13, 2024, indicates that claimant had \nreached a plateau with respect to physical therapy progress.  The report indicates that \nclaimant  had  not  made  any  functional  improvements  and  it  was  recommended  that \nclaimant be discharged to home exercises with a follow-up to the referring provider. \n Claimant returned to Dr. Cordell on August 20, 2024, who indicated that claimant \nhad  been  diagnosed  with  right  shoulder  adhesive  capsulitis  and  that  the  MRI  scan \nshowed tendinosis.  Dr. Cordell’s report indicates that claimant elected to proceed with \nan injection, continue therapy, and return as needed.  Claimant has not received medical \ntreatment since that evaluation. \n Claimant has filed this claim contending that she suffered a compensable injury to \nher right shoulder on July 24, 2023.  She requests payment of related medical, temporary \n\nThompson – H305020 \n \n6 \n \ntotal disability benefits, and a controverted attorney fee. \n \nADJUDICATION \n Claimant  contends  that  she  suffered  a  compensable  injury  to  her  right  shoulder \nwhile lifting a coil on July 24, 2023.  Claimant’s claim is for a specific injury identifiable by \ntime and place of occurrence.   In order to prove a compensable injury as the result of \na specific incident that is identifiable by time and place of occurrence, a claimant must \nestablish by a preponderance of the evidence (1) an injury arising out of and in the course \nof employment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to either  party,  I  find  that  claimant has met her  burden of  proof.    First, I  find \nbased on claimant’s testimony as well as the remaining evidence presented that claimant \nhas proven that her injury arose out of and in the course of her employment and that the \ninjury  was  caused  by  a  specific  incident  identifiable  by  time  and  place  of  occurrence.  \nClaimant testified about her injury and indicated that she reported the injury to respondent \nwho sent her to McWilliams for medical treatment that same day.  McWilliams’ medical \nreport contains a history of injury consistent with claimant’s testimony. \n I also find that claimant’s injury caused internal or external harm to her body that \nrequired medical services or resulted in disability.  As a result of claimant’s shoulder \n\nThompson – H305020 \n \n7 \n \ncomplaints, she has been treated with medication, the use of a sling, physical therapy, \nand an injection. \n The  primary  issue  in  this  case  involves  whether  claimant  has  offered  medical \nevidence supported by objective findings establishing an injury.  A.C.A. §11-9-102(4)(D) \nstates: \n  A compensable injury must be established by medical \n  evidence supported by objective findings as defined in \n  subdivision (16) of this section. \n \n \n Subsection (16) of A.C.A. §11-9-102(16)(A)(i) defines “objective findings” as those \nfindings  which  cannot  come  under  the  voluntary  control  of  the  patient.    Respondent \ncontends that in this particular case there are no objective findings establishing an injury.  \nOn the other hand, claimant contends that the physical therapy records show that passive \nand  active  range  of  motion  studies  were  done  and  that  the  passive  range  of  motion \nfindings  constitute  an  objective  finding.    Respondent  counters  that  passive  and active \nrange of motion is relevant to permanency, not compensability. \n The  issue  of  objective  findings  and  passive  versus  active  range  of  motion was \ndiscussed by the Arkansas Court of Appeals in Hayes v. Wal-Mart Stores, 71 Ark. App. \n207, 29 S.W. 3d 751 (2000).  In that particular case, the Court of Appeals determined that \npassive range of motion evaluations performed by an examiner did not come under the \nvoluntary control of the patient; therefore, they constituted objective findings pursuant to \nA.C.A. §11-9-102(16)(A)(i).  Specifically, the Court stated: \n  [T]he conclusion is inescapable that the tests performed \n  on appellant were passive range-of-motion evaluations \n  performed by the examiner and not under the  \n  voluntary control of the appellant.  Under these \n\nThompson – H305020 \n \n8 \n \n  circumstances, we hold that the Commission’s \n  opinion displays no rational basis for its finding \n  that the range-of-motion tests performed on \n  appellant did not constitute objective findings \n  under Ark. Code Ann. §11-9-102(16)(A)(i). \n \n \n While  respondent  contends  that  these  objective  findings  are  only  relevant  with \nrespect to permanency, I note that the Arkansas Court of Appeals specifically found that \npassive  range  of  motion  testing  constituted  an  objective  finding  under  A.C.A.  §11-9-\n102(16)(A)(i).  No distinction was made as to compensability versus permanency.   Given \nthe decision in Hayes that a passive range of motion evaluation constitutes an objective \nfinding,  I  find  that  claimant  has  satisfied  the  remaining  element  of  compensability.  \nTherefore, I find that the passive range of motion evaluation performed by the physical \ntherapist on the claimant constitutes an objective finding. \n Accordingly, I find that claimant has met her burden of proving by a preponderance \nof the evidence that she suffered a compensable injury to her right shoulder on July 24, \n2023.   \n Having found that claimant suffered a compensable injury to her right shoulder, I \nfind  that  respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s right shoulder injury. \n The next issue for consideration involves claimant’s request for temporary total \ndisability  benefits.    Claimant  contends  that  she  is  entitled  to  temporary  total  disability \nbenefits  beginning  July  25,  2023,  and  continuing  through  a date  yet  to be  determined.  \nClaimant’s injury to her right shoulder is a non-scheduled injury.  In order to be entitled to \ncompensation benefits for temporary total disability benefits, claimant has the burden of \n\nThompson – H305020 \n \n9 \n \nproving by a preponderance of the evidence that she remains within her healing period \nand  that  she  suffers  a  total  incapacity  to  earn  wages.  Arkansas  State  Highway  & \nTransportation Dept. v. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).   Even if I were \nto find that claimant has remained within her healing period since the date of her injury, I \ndo not find that claimant has proven by a preponderance of the evidence that she has \nsuffered a total incapacity to earn wages.   \n As previously noted, when claimant initially saw McWilliams on July 24, 2023, he \ntook claimant off work for 10 days.  However, two days later he authored an addendum \nindicating  that  he  had  been  informed  by  respondent  that  it  had  work  available  which \nclaimant  could  perform  without  using  her  injured  right  arm.    McWilliams  agreed  to  this \nlight-duty work and claimant did return to work for respondent for approximately five days.  \nAs  previously  noted,  claimant  initially  indicated  that  she  was  not  physically  capable  of \nperforming this work, and subsequently indicated that she could no longer perform the \nwork  due  to  becoming sick  as  a  result of the  cleaning  solution.   According to  Norman, \nclaimant was terminated after that date because she broke safety protocols with respect \nto the lifting of the coil as well as failing to report getting sick from the cleaning solution \nwhich claimant had previously used on a daily basis. \n Irregardless, McWilliams initially took claimant off work for 10 days before agreeing \nto allow her to return to work at a one-handed job.  There is no evidence that McWilliams \nor any other treating physician has taken the claimant off work since that date or placed \nany work restriction on her ability to return to work.  According to claimant’s testimony, \nshe obtained a high school diploma in 2011.  She is self-taught with respect to computer \ntraining and has taken an online course through a school in Washington state for medical \n\nThompson – H305020 \n \n10 \n \ntranscription  and  coding.    Claimant  also  performed  some  self-employment  work  as  a \nphotographer  and  artist.    Claimant  testified  that  she  previously  worked  at  an  oil  field \nconstruction  company  working  in  quality  control  handling  paperwork,  book  work,  data \nentry, and computer work.  Claimant testified that she performed this job for four years \nand  used  a  laptop  and  traveled  to  various  construction  sites  to  perform  her  work.  \nClaimant acknowledged that she had not been taken off work by any employer and that \nshe did not have any problem reading or writing.  She also acknowledged that she has \nrebranded her photography website in hopes of trying to obtain business.  Specifically, \nclaimant testified as follows: \n  Q What types of things have you looked to doing \n  from home? \n \n  A Data entry. \n \n  Q Okay.  And is that something you could do? \n \n  A Yes, sir, it would be. \n \n  Q Okay.  Now, I believe you indicated in some \n  questioning to your attorney that you didn’t believe \n  you were physically able to work since this event on \n  July the 24\nth\n of ’23? \n \n  A That is correct. \n \n  Q Okay.  But you are not wearing a sling or any \n  kind of brace at the present time? \n \n  A That is correct. \n \n  Q And you’ve already told us just a minute ago  \n  you could do data entry and computer entry and that \n  kind of thing? \n \n  A That is not physical work. \n \n\nThompson – H305020 \n \n11 \n \n  Q Sure.  But it’s work and it’s employment that you \n  could do; correct? \n \n  A Yes, sir. \n \n \n Thus, by claimant’s own admission she is capable of performing data entry work \nand according to her own testimony she has previously performed data entry work for an \noil field construction company for four years.   \n While not working, claimant is currently taking care of four children with the ages \nof 10, 8, 3, and nine months.  In addition, claimant’s husband travels for his work, and as \na result, she is responsible for taking care of her children, her home, and also takes care \nof various farm animals including goats, rabbits, and chickens.  While claimant testified \nthat the older children do most of the work involving the farm animals, physical therapist \nnotes indicate that claimant was also performing these duties. \n  July 17, 2024  physical therapist note: \n \n  Pt states she has to take care of farm animals, and \n  4 kids at home currently. \n \n  July 23, 2024 physical therapy note:  \n \n  Pt reports she is doing fair today.  Pt states she had \n  to do a lot of laundry yesterday and had to take care \n  of her goats. \n \n  August 13, 2024 physical therapy note: \n \n  Pt states she has daily “farm” chores including \n  chickens/goats/rabbits, and keeping up with her \n  baby, toddler, and older kids throughout her day, \n  while her husband works out of state. \n \n \n Based  upon  the  foregoing  evidence,  I  find  that  claimant  has  failed  to  meet  her \n\nThompson – H305020 \n \n12 \n \nburden  of  proving  by  a  preponderance  of  the  evidence  that  she  has  suffered  a  total \nincapacity to earn wages for a sufficient time to entitle her to compensation.  As previously \nnoted,  McWilliams  initially  took  claimant  off  work  for  ten  days  before  permitting  her  to \nreturn to  work  at one-handed  duty for the  respondent.  Claimant  apparently performed \nthis job for five days before she failed to show up for work and was terminated.  No treating \nphysician has taken claimant off work since that time.   \n Furthermore,  claimant  has  performed  office  work  in  the  form  of  data  entry  and \nadmitted that she was capable of performing that type of employment.  However, claimant \nis  currently  staying  at  home  taking  care  of  her  four  children  and  various  farm  animals \nwhile her husband travels for work. \n Based upon the evidence presented, I find that claimant has failed to prove by a \npreponderance of the evidence that she has suffered a total incapacity to earn wages for \na period of time which would entitle her to payment for temporary total disability benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B)(ii), attorney fees are awarded “only on the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no \nindemnity benefits were awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to \nA.C.A. §11-9-715(a)(4). \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe suffered a compensable injury to her right shoulder on July 24, 2023.  Respondent is \nliable  for  payment  of  all  reasonable  and  necessary  medical  treatment  provided  in \n\nThompson – H305020 \n \n13 \n \nconnection  with  claimant’s  compensable  injury.    Claimant  has  failed  to  prove  by  a \npreponderance of the evidence that she is entitled to temporary total disability benefits.  \nPursuant to A.C.A. §11-9-715(a)(1)(B)(ii), no attorney fee has been awarded. \n Respondent  is  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $687.75. \n IT IS SO ORDERED. \n \n       ________________________________ \n        GREGORY K. STEWART \n        ADMINISTRATIVE LAW JUDGE","textLength":21532,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305020 KLARESSA D. THOMPSON, Employee CLAIMANT NIDEC MOTOR CORPORATION, Employer RESPONDENT TRAVELERS INSURANCE CO., Carrier RESPONDENT OPINION FILED JANUARY 15, 2025 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Count...","outcome":"granted","outcomeKeywords":["granted:6","denied:1"],"injuryKeywords":["shoulder","rotator cuff"],"fetchedAt":"2026-05-19T22:44:24.081Z"},{"id":"alj-G905176-2025-01-14","awccNumber":"G905176","decisionDate":"2025-01-14","decisionYear":2025,"opinionType":"alj","claimantName":"Twanna Carter","employerName":"Ar Department Of Community Correction","title":"CARTER VS. AR DEPARTMENT OF COMMUNITY CORRECTION AWCC# G905176 January 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CARTER_TWANNA_G905176_20250114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CARTER_TWANNA_G905176_20250114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G905176 \n \nTWANNA CARTER, EMPLOYEE CLAIMANT \n \nAR DEPARTMENT OF COMMUNITY CORRECTION,  \nEMPLOYER                RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, TPA                       RESPONDENT \n \n \nOPINION FILED 14 JANUARY 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 16 October 2024 in Little Rock, Arkansas. \n \nThe claimant appeared pro se. \n \nArkansas Insurance Department, Public Employee Claims Division, Mr. Robert \nMontgomery, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 16 October 2024 in Little Rock, Arkansas. \nThe parties participated in a prehearing telephone conference on 16 July 2024. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on 17 July 2024.  \nThat Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/TPA relationship existed at all relevant times, including 1  \n     August 2019, when the claimant suffered an accepted compensable injury to her \n     right lower extremity. Some benefits were provided accordingly. \n \n3.  The claimant’s average weekly wage at the time relevant to this claim was \n$636.52 per week, which would entitle her to Temporary Total Disability (TTD) \nbenefits in the amount of $424 per week and Permanent Partial Disability (PPD) \nbenefits in the amount of $318 per week. \n \nThe Order stated the following ISSUES TO BE LITIGATED: \n1. Whether the claim for additional benefits is barred by the statute of limitations. \n\nT. CARTER- G905176 \n2 \n \n \n2. Whether the claimant is entitled to additional benefits, including future medical \ntreatment, reimbursement for past medical treatment, and indemnity benefits. \n \nAll other ISSUES are reserved. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire \nresponses, were incorporated into the Prehearing Order. The claimant contends, generally, \nthat she was not appropriately compensated and that she is entitled to additional medical \nand indemnity benefits. The respondents, however, contend that all appropriate benefits \nhave been paid. They further contend that the last compensation provided to compensation \nwas in the form of treatment from Campbell Clinic, P.C., on 5 May 2021. Payment for that \ntreatment was completed on 29 March 2022. The respondents subsequently filed a Form \nAR-4 with the Commission on 22 March 2023. They contend that this claim for additional \nbenefits is barred by the statute of limitations under A.C.A. § 11-9-702(b)(1). \n The claimant was the only WITNESS. \nThe EVIDENCE considered in this claim consisted of the hearing testimony along with \nthe following EXHIBITS: Commission’s Exhibit No 1 (the Prehearing Order), Respondents’ \nExhibit No 1 (an index page and four pages of medical reports), Respondents’ Exhibit No 2 \n(one index page and ten pages of non-medical records), and Respondents’ Exhibit No 3 (one \nindex page and an 18-page functional capacity evaluation report). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole and having heard testimony from the \nwitness, observing her demeanor, I make the following findings of fact and conclusions of \nlaw under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n 2. The previously-noted stipulations are accepted as fact. \n \n\nT. CARTER- G905176 \n3 \n \n3. The claimant failed to prove by a preponderance of the evidence that she is \nentitled to any additional benefits. \n \n4.   In light of Finding/Conclusion No 3, the statute of limitations issue is moot \nand will not be addressed. \n \nIII.  HEARING TESTIMONY AND EVIDENCE \nClaimant Twanna Carter \n The claimant testified she injured her leg on 1 August 2019 while she was \nparticipating in some training on subduing noncompliant inmates. Her injury was accepted \nby the respondents as compensable, and she began receiving medical and indemnity \nbenefits accordingly. She ultimately underwent surgical repair for her ACL and MCL \ninjuries. Afterwards, she received a permanent impairment rating; and that rating was \npaid by the respondents. The claimant disagrees with the opinions offered around her \nrelease from care and believes that she is entitled to ongoing treatment for pain and other \nunspecific benefits. She has not returned to work since sustaining her injury. \n On cross examination, the claimant acknowledged that her treatment included care \nfrom Dr. Frederick Azar at the Campbell Clinic in Memphis, Tennessee. She was also seen \nby Dr. Carlos Roman, who placed her at maximum medical improvement (MMI) on 8 March \n2021. On 23 March 2021, she underwent a functional capacity evaluation (FCE) that found \nher efforts to be unreliable. The claimant disagreed with those findings and stated that she \ndid the best that she could do in the testing. \n According to her testimony, the claimant was aware that Dr. Roman was a pain \nspecialist at the time that she saw him in March of 2021. She acknowledged that his final \nreport stated that, “There are no further medications required.”  \nThe claimant testified that she last saw Dr. Azar in May of 2021 and acknowledged \nreceiving a nine percent (9%) impairment rating to her lower extremity in May of 2021. She \n\nT. CARTER- G905176 \n4 \n \nfurther acknowledged the receipt of $5,144.94 as compensation for that rating. The check \nfor that payment was dated 10 August 2021. \nMedical and Documentary Evidence \n The medical reports indicate that the claimant saw Dr. Roman on 8 March 2021. He \nplaced her at MMI on that date, noting that there were “no further injections, procedures, \nor medications required.” The claimant’s last visit with Dr. Azar was on 5 May 2021, when \nhe agreed that she was at MMI. He concluded, “I am going to release her from my care at \nthis time and render an impairment based on the AMA guides.” He calculated a nine \npercent (9%) impairment to the lower extremity, which translated to a four percent (4%) \nimpairment to the whole person. [Resp. Ex. No 1.] \n The respondents introduced several non-medical records, including a Form AR-N \ndated 2 August 2019, and payments records that are consistent with the claimant’s \ntestimony. The final date of service for medical treatment is represented as 5 May 2021 at \nCampbell Clinic (Dr. Azar’s practice). The payment history print-out for the claimant’s \nimpairment rating payment shows a date of 10 August 2021. [Resp. Ex. No 2.] \n A functional capacity evaluation report found that the claimant put forth an \nunreliable effort during her 23 March 2021 evaluation. Only 20 of 53 consistency measures \nwere within expected limits. [Resp. Ex. No 3.] \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of a witness and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \n\nT. CARTER- G905176 \n5 \n \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness, \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \n The claimant believes that she is entitled to additional medical benefits beyond the \ntreatment already provided. Employers must promptly provide medical services which are \nreasonably necessary in connection with the compensable injuries. A.C.A. § 11-9-508(a). \nHowever, injured employees have the burden of proving by a preponderance of the evidence \nthat medical treatment is reasonably necessary. Patchell v. Wal-Mart Stores, Inc., 86 Ark. \nApp. 230, 184 S.W.3d 31 (2004). What constitutes reasonable and necessary medical \ntreatment is a fact question for the Commission, and the resolution of this issue depends \nupon the sufficiency of the evidence. Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 \nS.W.2d 790 (1996). \n The testimony suggested that the claimant believes that her complaints of pain and \ndifficulties have not been properly addressed. The respondents, however, presented \nevidence, by way of medical reports, from two providers that agreed that the claimant was \nat MMI in 2021. The Commission may accept or reject a medical opinion and determine its \nprobative value. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). I \nfind the reports and opinions of Drs. Azar and Roman to be credible. A permanent \nimpairment rating was determined by one of her providers, and the claimant acknowledged \nthat she received appropriate benefits consistent with that rating.   \n\nT. CARTER- G905176 \n6 \n \nA claimant may be entitled to additional treatment even after her healing period is \nended, if that treatment is geared towards management of a compensable injury. Patchell, \nsupra. The claimant testified that she has seen other providers for pain since her release \nfrom care; but she did not introduce any records to suggest a causal connection between her \ninjury and her more recent treatment(s). I do not find that the claimant met her burden of \nproving by a preponderance of the evidence that she is entitled to additional medical \ntreatment. \n The claimant also testified about the difficulties she has faced since her injury and \nnot returning to work. She claims that she remains unable to work due to her injury. \nTemporary total disability (TTD) is that period within the healing period in which the \nemployee suffers a total incapacity to earn wages. Ark. State Hwy. Dept. v. Breshears, 272 \nArk. 244, 613 S.W.2d 392 (1981). \"Healing period\" means \"that period for healing of an \ninjury resulting from an accident.\" A.C.A. § 11-9-102(12). The healing period continues until \nthe employee is as far restored as the permanent character of her injury will permit, and if \nthe underlying condition causing the disability has become stable and nothing further in \nthe way of treatment will improve that condition, the healing period has ended. Harvest \nFoods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). The determination of when \nthe healing period has ended is a question of fact for the Commission. Carroll Gen. Hosp. v. \nGreen, 54 Ark. App. 102, 923 S.W.2d 878 (1996). \n Based on the evidence in the record, I do not find that the claimant proved by a \npreponderance of the evidence that she entered a new healing period that may entitle her to \nadditional TTD benefits. Temporary total disability benefits cannot be awarded after \nthe healing period has ended. Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 \n(1987). The claimant testified generally that she still experiences pain. Persistent pain, \n\nT. CARTER- G905176 \n7 \n \nhowever, does not extend a claimant's healing period, provided that the underlying \ncondition has stabilized. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 \n(1982). The medical evidence credibly establishes that the claimant’s condition stabilized in \n2021 when Drs. Azar and Roman released her from care at MMI. \n Having found that the claimant failed to meet her burden of proof on her request for \nadditional benefits of any type, the issue of whether the statute of limitations has run is \nmoot. \nV.  CONCLUSION \n Because the claimant failed to meet her burden of proof on any claim for additional \nbenefits, this claim is DENIED and DISIMSSED. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":12116,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G905176 TWANNA CARTER, EMPLOYEE CLAIMANT AR DEPARTMENT OF COMMUNITY CORRECTION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT OPINION FILED 14 JANUARY 2025 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative La...","outcome":"granted","outcomeKeywords":["granted:3","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:44:13.614Z"},{"id":"alj-H104644-2025-01-14","awccNumber":"H104644","decisionDate":"2025-01-14","decisionYear":2025,"opinionType":"alj","claimantName":"Ruth Hatcher","employerName":"Walmart Associates","title":"HATCHER VS. WALMART ASSOCIATES AWCC# H104644 January 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HATCHER_RUTH_H104644_20250114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HATCHER_RUTH_H104644_20250114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H104644 \n \nRUTH HATCHER, Employee      CLAIMANT \n \nWALMART ASSOCIATES, Employer     RESPONDENT \n \nWALMART CLAIMS SERVICE, Carrier/TPA     RESPONDENT \n \n \n OPINION FILED JANUARY 14, 2025  \n \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in Springdale, \nWashington County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by RICK BEHRING, JR., Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn April 19, 2023, the claimant filed an AR-C requesting various compensation benefits \nin  which  she  alleged  injuries  to  her  neck  and  back  on  or  about  April  22,  2021.  The  claim  was \ncontroverted  in  its  entirety.  No  further  action  was  taken.  The  respondents  filed  a  Motion  to \nDismiss on October 23, 2023, and a hearing was scheduled for February 20, 2024. Although the \nclaimant did not attend the hearing, she did reach out to my office and informed the Commission \nthat  she  would  like  to  go  forward  with  her  claim  and  requested  a  hearing.  On  March  12,  2024, \nthis administrative law judge entered an opinion denying the respondents Motion to Dismiss. The \nparties attempted settlement, but negotiations fell through, and no further action was taken by the \nclaimant. \n\nHatcher – H104644 \n \n-2- \n On October  22,  2024,  the  respondents  filed  another Motion  to  Dismiss  requesting  that \nthis  claim  be  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for January  7,  2025. \nNotice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on \nNovember 25, 2024. United States Postal Department records indicate that claimant received and \nsigned  for  the  notice  on December  4,  2024.  Despite  having  received  notice  of  the  scheduled \nhearing,  the  claimant  failed  to  appear  at  the  hearing  and  has  failed  to  respond  to  the  motion  in \nany form or manner. \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2998,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H104644 RUTH HATCHER, Employee CLAIMANT WALMART ASSOCIATES, Employer RESPONDENT WALMART CLAIMS SERVICE, Carrier/TPA RESPONDENT OPINION FILED JANUARY 14, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. C...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:44:15.667Z"},{"id":"alj-G907099-2025-01-14","awccNumber":"G907099","decisionDate":"2025-01-14","decisionYear":2025,"opinionType":"alj","claimantName":"Jeffrey Lovelis","employerName":"Arkansas State Police","title":"LOVELIS VS. ARKANSAS STATE POLICE AWCC# G907099 January 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LOVELIS_JEFFREY_G907099_20250114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOVELIS_JEFFREY_G907099_20250114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G907099 \nJEFFREY LOVELIS, EMPLOYEE     CLAIMANT \n \nARKANSAS STATE POLICE, \nEMPLOYER         RESPONDENT \n \nARKANSAS INSURANCE DEPARTMENT/ \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA      RESPONDENT \n \nOPINION FILED JANUARY 14, 2025 \nHearing before Administrative Law Judge, James D. Kennedy, on the 19\nth\n day of June \n2024, in Little Rock, Arkansas. \nClaimant is represented by Steven R. McNeely, Attorney at Law, Jacksonville, \nArkansas. \nRespondents are represented by Charles H. McLemore, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n  \n A hearing was conducted on the 19\nth\n day of November 2024, to determine the sole \nissue of additional reasonable  and  necessary medical treatment. A  copy  of  the  Pre-\nhearing Order dated August  13,  2024, was marked “Commission Exhibit 1” and made \npart  of  the  record without  objection.  The  Order  provided that the parties stipulated as \nfollows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. An  employer-employee  relationship  existed  on or  about  September  19, \n2019. \n \n3. An injury to the neck was accepted as compensable. \n\nJeffrey Lovelis – G907099 \n  \nThe  claimant’s  and  respondent’s  contentions are set  out  in  their  respective \nresponses  to  the  Pre-hearing  questionnaire and made  a  part  of  the  record  without \nobjection. The  claimant  contends  that he  is  entitled  to  additional  reasonable  and \nnecessary  medical  treatment,  specifically  being  a  return visit to  Dr.  James  Suen  to \naddress the diagnosis claimant received from the VA doctor in Florida finding a crack in \nhis Hyoid Bone, or alternatively an IME with a doctor in Florida. The respondents contend \nthat  the  claimant  reported  on  September  29,  2019, that  he  had injured his  neck  on \nSeptember   19,   2019,   while training,   which   was   accepted   as   compensable   by \nRespondents with the Claimant having been provided reasonable and necessary medical \ntreatment for the compensable  injury, which including  treatment  by  Dr.  Steven  Shorts, \notolaryngologist, who opined that there was no long lasting disability for this type of injury.  \nDr. Shorts released the claimant to full duty on October 28, 2019.  Dr. Scott Carle saw \nthe  claimant  for  an  Independent  Medical  Examination  on  November  14,  2019,  and \nordered an MRI of the claimant’s neck and throat and opined that the  claimant  was  at \nMaximum Medical Improvement and had no permanent impairment. \nThe claimant returned to Dr. Shorts, who did not treat the claimant but referred the \nclaimant to Dr. James Suen, otolaryngologist, on November 16, 2020. Dr. Suen ordered \na barium swallow study which was normal and a CT scan which was unremarkable. He \nperformed an exploratory surgery on July 14, 2021, and found no major abnormalities but \ndid remove part of a lymph node and upper lateral thyroid cartilage just below the hyoid \nbone on the left side. The claimant was then later seen by Dr. Wayne Bruffett who ordered \nan MRI of the cervical spine and opined on October 21, 2021, that the claimant had no \n\nJeffrey Lovelis – G907099 \ninjury to the spine that would result in a permanent impairment and placed no restrictions \non the claimant.  Dr. Suen released the claimant at MMI on January 3, 2022, indicating \nthat he had nothing else to offer but non-narcotic pain management might be useful, and \nthe claimant presented to Dr. Carlos Roman who ultimately released the claimant with a \n0%  impairment  rating.    The  claimant  moved  out  of  state  and sought further  treatment \nwhich the respondents were aware of, and they then filed a Motion to Dismiss for Want \nof Prosecution on June 4, 2024.  The claimant objected to the dismissal and contended \nthat he should be allowed to return to Dr. Suen after the diagnosis of a crack in his hyoid \nbone as determined by a VA doctor or in the alternative, an IME.  \n The sole witness to testify was the claimant, Jeffrey Lovelis. Both parties submitted \nexhibits  without  objection. From  a  review  of  the  record  as  a  whole, to  include  medical \nreports and other matters properly before the Commission and having had an opportunity \nto observe the testimony and demeanor of the witness, the following findings of fact and \nconclusions of law are made in accordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2.  That an employer/employee relationship existed on September 19, 2019, when \nthe claimant sustained a compensable injury to his neck which was accepted \nas compensable by the respondent.   \n3.   That the claimant has failed to satisfy the required burden of proof to prove by \na preponderance of the evidence that he is entitled to the additional medical \n\nJeffrey Lovelis – G907099 \ntreatment requested, specifically a return to the treating physician, Dr. James \nSuen or another IME in Florida, with said requested treatment being found to \nnot be reasonable and necessary.   \nREVIEW OF TESTIMONY AND EVIDENCE \n The claimant, Jefferey A. Lovelis, 35 years old at the time of the hearing, was the \nsole witness to testify. He admitted to VA-related disabilities after serving in the Marines \nand being deployed to Afghanistan. These conditions did not involve his neck or throat, \nhowever but did involve PTSD, his hearing, and his knees. He returned to Arkansas and \nafter  some  intermediate  employment after  the  military  and became  employed  by  the \nArkansas  State  Police  in  2018  as  a  Trooper  in  Lincoln  County.    He  stated  he  had  no \nproblem performing his job duties until September 19, 2019.  On that date he was at a \ntraining facility for his yearly training, and they were working on neck restraints that could \npossibly  protect  them while  working on  the  side  of  the  highway.  12 Troopers  were \ninstructed  to get  on their  knees and  then  the individual Troopers were  instructed  to go \nbetween each remaining Trooper to become aware of different neck sizes that they might \nencounter.  He injured his neck when a Trooper came up behind him and picked him up \noff of his knees very slightly and he felt something tighten up.  A week later, he could tell \nsomething was going on and he felt a popping sensation in his throat while attempting to \nswallow. (Tr. 6 – 11) \n He initially saw Dr. Stephen Shorts and then saw Dr. James Suen, who could tell \nsomething was wrong but didn’t know what, based on CT scans and MRI’s. Dr. Suen then \nperformed exploratory surgery on July 14, 2021, “where he grinded my esophagus down, \nmy voice box down, and removed some lymph node and removed that calcified styloid \n\nJeffrey Lovelis – G907099 \ntendon.” He went  on  to  testify  that after  the  surgery,  his  throat  popped every  time  he \nattempted to  swallow.  He  denied  being  involved  in  any additional accidents, since  the \nNovember  2019  date.  (Tr.  13,  14) The  claimant  felt  that  he  was  unable  to  be  a  State \nTrooper due to lacking a full range of motion in his neck and issues with the swallowing \nand grinding in his throat. He also stated that he lost the full range of motion in left arm. \n(Tr. 15, 16) \nUnder cross examination, the claimant admitted reporting the training injury to his \nrespondent employer within  six  or  seven  days.    He  went  on  to  provide  that  he  did  not \nreport it earlier because in the past, he had been through numerous chokeholds, and he \ndidn’t think anything was wrong. “So as the week progressed, I could tell that something \nwas going on because my neck, as it - - it got harder and harder to swallow and eat foods \nduring the week.” “I mean we - - That wasn’t the only neck restraint that we worked on \nthat day, so there was a lot of force on our necks that day for everybody, so I just thought \nit was maybe sore initially.” (Tr. 19, 20) \nIn regard to medical treatment, the claimant went initially to Med Express, and was \nthen referred to Dr. Shorts, an ear, nose, and throat doctor, where he eventually received \nan MRI after a couple of months. He also admitted seeing Dr. Carly, due to the fact his \nthroat was still swollen, and which affected his job. He was later referred to Dr. Suen, who \nordered a CT. It was the claimant’s understanding that Dr. Suen knew that something \nwas  wrong, and  the  exploratory  surgery  was  to determine what. After  the  surgery,  the \nclaimant admitted to receiving physical therapy for his left arm which helped 100 percent, \nbut the throat problems became worse. The claimant admitted that he was told the left \narm problem had nothing to do with the exploratory surgery. (Tr. 21 - 26) \n\nJeffrey Lovelis – G907099 \nThe  claimant  also  admitted treatment  by Dr.  Bruffett, who  ordered  a  MRI  of  the \ncervical  spine but who did  not  order  surgery.   In  regard  to his treatment  by Dr.  Suen, \nclaimant testified that “He exhausted everything he had.  Based off what he found after \nexploratory - - didn’t find anything - - I don’t think there was anything he could probably \ndo.” (Tr. 27) The claimant also admitted to performing a Functional Capacity Evaluation \n(FCE) and admitted that at the time of the examination, he was on medications from the \nVA  and that he may  not  have  understood  what  was  expected  of  him.  (Tr.  29)  He  also \nadmitted that after the surgery he lost a lot of strength in his left arm, and that was where \nthe physical therapy assisted him in getting his left arm strength back. (Tr. 30) He further \nprovided that the abilities in regard to his left arm have improved, but he still has problems \nwith his throat. (Tr. 31) \nThe claimant admitted he had moved to Florida. (Tr. 32) He also admitted that a \nletter dated June 7, 2022, provided he was entitled to disability from the Arkansas State \nPolice.  He also admitted seeing doctors in Florida which were part of the VA system and \nremembered  performing  a  “swallow  study”  and additionally receiving  another  MRI \nregarding his neck. (Tr. 33) The claimant felt the swallowing problem with his neck had \nnot  improved  but  he  had  become  more  tolerant  of  it.  He  also  admitted  currently being \nemployed by UF Health Hospital in St. Augustine for a little over a year. (Tr. 35, 36) In \nregard  to his throat,  he testified that  he  had  received  acupuncture  and  had  visited  a \nchiropractor. The claimant also testified that the surgery on his neck was performed on \nthe left side. (Tr. 39) \n In  regard  to  exhibits, claimant submitted  37  pages  of  medical  exhibits  without \nobjection. The records provide that he presented to Mainline Health on April 22, 2022, in \n\nJeffrey Lovelis – G907099 \nregard  to his  injury and  the  report  provided  the  claimant  was  unable  to  participate  full \ncapacity in regard to the job duties for the highway patrol and state trooper patrol.  He \nwas unable to perform a full range of motion in regard to his neck and also his bilateral \nupper extremities at the time. (Cl. Ex. 1, P. 1) On April 6, 2023, he was seen by Dr. Neil \nChhedra at the University of Florida who saw the claimant through the VA.  A CT of the \nneck was ordered along with a barium swallow study. (Cl. Ex. 1, P. 2 – 13) \n The claimant returned to Dr. Chhedra on May 16, 2023, and the report provided \nthat  the  claimant  presented  with  odynophagia  and  throat  clicking  and  had  a  history  of \ntrauma to the neck due to a choke hold to the neck during police training four years earlier. \n(Cl. Ex. 1, P. 14 – 20) He again returned to Dr. Chhedra on June 22, 2023, and an MRI \nwas discussed. The report provided that the MRI procedure was selected by the claimant, \nbut  the  report  showed “(Discontinued)”  by  the  term  “MR  Neck”  with  a  diagnosis  of \nOdynophagia. (Cl. Ex. 1. P. 21 – 28) He then returned again to Dr. Chhedra on September \n28, 2023, and was diagnosed with a fracture of the hyoid bone and odynophagia. (Cl. Ex. \n1, P. 29 – 36) \n Claimant’s  exhibit  two was also admitted  without  objection and consisted  of \nMerriam-Websters definition of Dysphagia and Odynophagia as well as Chapter 9 which \ncovered the Ear, Nose, Throat, and related Structure in the MA Guides 4th Edition. \n The  respondents  submitted  99  pages  of  medical  records  that  were  admitted \nwithout  objection.  The  records  provide  that  the claimant  presented  to  MedExpress  on \nSeptember  29,  2019, with  a  referral  to  an  ENT.  The  report  further  provided  that  the \nclaimant came in with neck pain due to hurting his neck 10 days earlier during training.  \n(Resp. Ex. 1. P. 1 – 9) The claimant was then referred to Dr. Stephen Shorts and he first \n\nJeffrey Lovelis – G907099 \nsaw him on October 8, 2019, with a diagnosis of a stretch of his left stylohyoid ligament.  \nIt  further  provided  that  the  claimant  could  return  to  work  as  long  as he avoided heavy \nlifting and strenuous bending of the neck for two weeks. A letter reiterating this point was \ndated October 15, 2019, as well as a note on a prescription pad, dated October 21, 2019. \n(Resp. Ex. 1, P. 10 – 17) An MRI of the face and neck was obtained on November 22, \n2019,  and  it  provided  for  no  pathologic  or  post-traumatic  findings  of  the  cervical  soft \ntissues of the neck. (Resp. Ex. 1, P. 18) \n A note titled “Fitness for Duty Status” dated November 26, 2019, and signed by \nDr. Carle, provided it appeared the claimant appeared to be able to perform the essential \nfunctions of his job. (Resp. Ex. 1, P. 19, 20)   An Independent Medical Exam Report dated \nNovember  26,  2019,  provided  that  no  impairment  of  the  swallowing  mechanism  was \nidentified and provided for a 0% impairment rating. (Resp. Ex. 1, P. 21 - 32) The claimant \nwas then referred to Dr. Suen by Dr. Shorts on November 16, 2020.  (Resp. Ex. 1, P. 35, \n36)   The CT report of the soft tissue of the neck dated November 19, 2019, provided for \nan unremarkable postcontrast CT of the neck, with no acute findings, abnormal mucosal \nenhancement, or cervical adenopathy. (Resp. Ex. 1, P. 37 - 39) Follow up progress notes \nby Dr. Suen dated April 19, 2021, provided that there was no significant abnormal finding \nin regard to the neck.   \nOn May 24, 2021, Dr. Suen scheduled exploratory surgery due to the fact that the \nclaimant was having so many problems and that the claimant wanted the surgery. (Resp. \nEx. 1, P. 41 - 44) Exploratory surgery of the left neck by Dr. Suen occurred on July 14, \n2021, the report provided the claimant wished to return to work and due to the fact that \nchronic pain was reported, it was felt that it be worthwhile to explore the neck to be sure \n\nJeffrey Lovelis – G907099 \nthere was nothing obvious that could be corrected. The hyoid bone was retracted, and \nthe  medial  cornu  of  the  hyoid was  felt where  the  stylohyoid  ligament  attached and Dr. \nSuen could “feel a slight thickening above that which I felt was a small calcification.”  \n(Resp. Ex. 1, P. 45 – 47) The claimant returned to Dr. Suen for a follow up on September \n7, 2021.  From that report, it appeared neck pain was still present. (Resp. Ex. 1, P 48, 49)   \nThe  claimant was then seen  by Dr. Wayne Bruffett on October 6, 2021,  and an \nMRI of the cervical spine was recommended. Dr. Bruffett also provided for no change in \nthe claimant’s work status. (Resp. Ex. 1, P 50 – 55) The MRI of the cervical spine dated \nOctober18, 2021, provided only for mild degenerative changes at C1 – C2. (Resp. Ex. 1, \nP.  55,  56)  The  claimant  then  returned  to  Dr.  Bruffett  for  a  follow-up  and  Dr.  Bruffett \nprovided he did not see any structural damage, but he suspected that the claimant would \nbe left with some residual symptoms. (Resp. Ex. 1, P. 57 – 62)        \n The claimant then returned to Dr. Suen on November 30, 2021, who opined in his \nreport  that  the  claimant  suffered  from  an  unusual  neck  problem  secondary  to  trauma, \nwhich was most likely from muscle injury due to the trauma.  On December 20, 2021, Dr. \nSuen opined that he had exhausted all possible diagnoses for the claimant’s problems \nand that he was unable to resolve it.  He did not think that narcotic pain management was \nrequired but some of the anti-seizure meds used for pain could possibly be useful. (Resp. \nEx. 1, P. 63 - 65) \n The claimant was then seen by Dr. Carlos Roman on February 15, 2022, who felt \nthat a FCE (Functional Capacity Exam) was warranted.  It was found that the claimant \nwas at MMI with an impairment rating of zero.  The final diagnosis was neck pain post \nneck strain. (Resp. Ex. 1, P. 66 – 68) A Functional Capacity Impairment Rating Report \n\nJeffrey Lovelis – G907099 \nprovided  that  there were  no  objective  findings  to  support  impairment and  therefore  the \nclaimant was given a 0% impairment rating. The report provided that an unreliable effort \nwas  given. (Resp.  Ex.  1,  P.  69 - 70) The FCE provided  that  the  claimant  performed \nunreliably with 36 of 53 consistency measures within expected limits. (Resp. Ex. 1. P 71 \n– 90) \n On  March  9,  2022,  Dr.  Roman  reviewed  the  FCE Exam  and  wrote  that  he  had \nalready released the claimant at MMI with a 0% impairment rating. (Resp. Ex. 1, P. 91)  \nOn March 10, 2022, Dr. Suen provided in an email chain that he agreed with the findings \nof the FCE and that the claimant’s symptoms and complaints were not consistent with his \nexam.  He had examined the claimant multiple times, and he felt he was considered an \nexpert in regard to neck and throat problems.  He could not find anything abnormal on the \nexam and had even surgically explored the claimant’s neck and checked every structure \nthat could cause his symptoms and found nothing significant. (Resp. Ex. 1, P. 92, 93) A \nBarium Swallow Study report from the University of Florida dated April 24, 2023, provided \nthat the claimant was a 34-year-old male with a previous fracture of the Hyoid bone. The \nreport provided for a normal examination or findings that are inconsequential. (Resp. Ex. \n1, P. 94 – 95) Finally, an MRI of the neck dated August 17, 2023, provided that there were \nno findings to explain odynophagia and there were no abnormalities on either this study \nor the prior laryngeal CT to suggest abnormalities of the hyoid bone or the remainder of \nthe laryngeal skeleton. (Resp. Ex. 1, P. 96) \n The  respondents  also  submitted  27  pages  of  nonmedical  evidence  without \nobjection.  An  AR – N  Form  filled  out  by  the  claimant  provided  that  he  was  injured  on \nSeptember  19,  2019, when he was “having a practice with different exercises when \n\nJeffrey Lovelis – G907099 \nsomeone squeezed his head too hard and felt tightness on his neck.” This document was \nreceived on September 30, 2019, by the Public Employee Claims Division. (Resp. Ex. 2, \nP. 1-3)   The Employee’s Report of Accident also provided that the date of the injury was \nSeptember 19, 2019, and  involved  the  soft  tissue  of  the  neck. (Resp.  Ex.  2,  P. 4) The \nWorkers’ Compensation Incident Report provided that the claimant was involved with in-\nservice  training on  the  dates  of  September  17 -19,  2019,  when  he  hurt  his  neck while \ntraining. (Resp. Ex. 2, P. 5) \n A letter from APERS dated June 7, 2022, in regard to the claimant’s application for \ndisability retirement, provided that the disability benefits would be effective June 1, 2022. \n(Resp. Ex. 2, P. 6 – 8) In addition, the minutes of the Arkansas State Police Commission \nmeeting dated July 14, 2022, provided that the claimant retired from the department on \nMay 31, 2022. (Resp. Ex. 2, P.  9 -13) A report provided that the claimant ran in the Bridge \nof Lions 5K and came in 10\nth\n out of 27\nth\n in his age group. (Resp. Ex. 2, P. 21, 22)    \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn  the  present  matter,  the  parties  stipulated that the  claimant  sustained  a \ncompensable injury to his neck on September 19, 2019.  The claimant is therefore not \nrequired to establish “objective medical findings” in order to prove that he is entitled to \nadditional benefits. Chamber Door Indus., Inc. v Graham, 59 Ark. App. 224, 956 S.W.2d \n196 (1997) Once it is settled that a claimant has a compensable injury, the question of \nmedical service must be determined by looking at the facts in question and determining \nif the medical services are reasonably necessary for the treatment of the claimant’s injury \n\nJeffrey Lovelis – G907099 \nIn  determining  whether  the  claimant  sustained  his required  burden  of  proof,  the \nCommission shall weigh the evidence impartially, without giving the benefit of the doubt \nto either party.  Ark. Code Ann 11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 \nS.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence on all \nissues before it into findings of fact. Weldon v. Pierce Brothers Construction Co., 54 Ark. \nApp. 344, 925 S.W.2d 179 (1996). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe  Arkansas  Workers’  Compensation  Act  and  must  sustain  that  burden  by  a \npreponderance of the evidence. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 635 \nS.W. 2d 823 (1982).  Preponderance of the evidence means the evidence having greater \nweight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark App. 263, \n101  S.W.3d  252  (2003).    Further,  pursuant  to  Ark.  Code  Ann.  11-9-509  (a),  medical \nbenefits owed under the Workers’ Compensation Act are only those that are reasonable \nand necessary.  Employers must promptly provide medical services which are reasonably \nnecessary for treatment of compensable injuries. A.C.A. 11-9-508 (a).  However, injured \nemployees have  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  the \nmedical treatment is reasonably necessary for the treatment of the compensable injury. \nOwens  Plating  Co.  v.  Graham,  102  Ark.  App.  299,  284  S.W.  3d  537  (2008).    What \nconstitutes reasonable and necessary treatment is a question for the Commission. Anaya \nv. Newberry’s 3N Mill,  102  Ark.  App.  119,  282  S.W.  3d  269  (2008).    When  assessing \nwhether medical treatment is reasonably necessary for the treatment of a compensable \ninjury,  both  the  proposed  procedure  and  the  condition  it  is  sought  to  remedy must  be \nanalyzed. See Wright  Construction  Co.  v.  Randall,  12  Ark.  App.  358,  676  S.W.2d  750 \n\nJeffrey Lovelis – G907099 \n(1984).  Also, the respondent is only responsible for medical services which are casually \nrelated to the compensable injury.  Treatments to reduce or alleviate symptoms resulting \nfrom a compensable injury, to maintain the level of healing achieved, or to prevent further \ndeterioration  of  the  damage  produced  by  the  compensable  injury  are  considered \nreasonable  medical  services. Foster  v.  Kann  Enterprises,  2019  Ark.  App.  746,  350 \nS.W.2d 796 (2009).   \nIn  the  present  matter, the  initial  MRI  of  the  face  and  neck  dated  November  22, \n2019,  provided  no  pathological or  post  traumatic  findings regarding the  cervical  soft \ntissues of the neck.  An IME dated November 26, 2019, provided no impairment involving \nswallowing and provided for a 0% impairment rating.  Dr. Suen ordered a CT of the neck \nand there were no acute findings as stated in the follow-up by Dr. Suen on April 19, 2021.  \nExploratory surgery was performed by Dr. Suen on July 14, 2021, and the report provided \nhe retracted  the  hyoid  bone and  could  feel  the  medial  cornu  of  the  hyoid  where  the \nstylohyoid attached and could feel a slight thickening above the location which he felt was \na calcification.  The claimant was also seen by Dr. Bruffett, who recommended another \nMRI, and no structural damage was observed, although Dr. Bruffett felt the claimant did \nsuffer from some residual symptoms.  The claimant returned to Dr. Suen on November \n30,  2021,  and  Dr.  Suen  opined  that  the  claimant  suffered  from  some  unusual  neck \nproblems which were most likely caused by muscle injury due to the trauma.  Later on, \nDecember 20, 2021, Dr. Suen stated that he had exhausted all possible diagnoses and \nwas unable to resolve the problem.  On February 15, 2022, Dr. Roman found the claimant \nat  MMI  and  provided  a  0%  impairment  rating with no  objective  findings.    On  March  9, \n2022, Dr. Suen opined that the claimant’s symptoms and complaints were not consistent \n\nJeffrey Lovelis – G907099 \nwith his physical exam  and stated that  he  could  not  find  anything  abnormal  in  the \nclaimant’s exam and could not find anything in his surgical examination of the claimant \nwhile exploring his neck which would cause the claimant’s symptoms.   \nLater on, April 24, 2023, a Barium Swallow Study was performed at the University \nof Florida which provided for a normal exam with inconsequential findings.  Additionally, \na MRI report from the University of Florida dated August 17, 2023, found no findings that \nexplained odynophagia and found no abnormalities in the study or in a prior laryngeal CT \nto  suggest abnormalities  of  the  hyoid  bone or  the  remainder  of the  laryngeal  skeleton. \nThe one report that differs from all of these previous findings was the one by Dr. Chhedra, \ndated September 28, 2022, and which diagnosed the claimant with a fracture of the hyoid \nbone and odynophagia.   \nAll medical reports and various imaging studies, except the opinion issued by Dr. \nChhedra, found  no consequential findings in regard to the claimant’s issues involving \nswallowing.  Dr. Suen, a well-respected surgeon in regard to neck and throat issues, even \nstated that the claimant’s symptoms and complaints were not consistent with his exam, \nand went on to state that he could not find anything abnormal in the claimant’s exam and \ncould not find anything in his surgical examination of the claimant while exploring his neck \nwhich would cause the claimant’s symptoms.   \n  Questions concerning the credibility of witnesses and the weight to be given to \ntheir testimony are within the exclusive province of the Commission.  Powers v. City of \nFayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007).  Where there are contradictions \nin the evidence, it is within the Commissions’ province to reconcile conflicting evidence \nand to determine the true facts.  Cedar Chem. Co. v. Knight, 99 Ark. App. 162, 258 S.W.3d \n\nJeffrey Lovelis – G907099 \n394  (2007).    The  Commission has  authority  to  accept  or  reject  medical  opinion  and  to \ndetermine its medical soundness and probative force.  Oak Grove Lumber Co. v. Highfill, \n62 Ark. App. 42, 968 S.W.2d 637 (1998).  However, the Commission may not arbitrarily \ndisregard the testimony of any witness.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. \n230, 184 S.W.3d 31 (2004).  \n   Based upon the above evidence and the applicable law, and after weighing the \nevidence impartially, without giving the benefit of the doubt to either party, the medical \ntreatment  requested  is  found  to  not  be  reasonably  necessary  for  the  treatment  of  the \ncompensable injury and there is no alternative but to find that the claimant has failed to \nsatisfy the required burden of proof to prove by a preponderance of the evidence, that the \nreturn  visit  to  Dr.  Suen  for medical  treatment,  or  in  the  alternative  the  request  for  an \nadditional   IME is   reasonable   and   necessary treatment. If   not   already   paid,   the \nrespondents are ordered to pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n      ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":27926,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G907099 JEFFREY LOVELIS, EMPLOYEE CLAIMANT ARKANSAS STATE POLICE, EMPLOYER RESPONDENT ARKANSAS INSURANCE DEPARTMENT/ PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 14, 2025 Hearing before Administrative Law Judge, Ja...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["neck","cervical","back","fracture","strain"],"fetchedAt":"2026-05-19T22:44:17.801Z"},{"id":"alj-H000463-2025-01-14","awccNumber":"H000463","decisionDate":"2025-01-14","decisionYear":2025,"opinionType":"alj","claimantName":"Charles Mainor","employerName":"Transco Lines, Inc","title":"MAINOR VS. TRANSCO LINES, INC. AWCC# H000463 January 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MAINOR_CHARLES_H000463_20250114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MAINOR_CHARLES_H000463_20250114.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H000463 \n \nCHARLES MAINOR, Employee      CLAIMANT \n \nTRANSCO LINES, INC., Employer     RESPONDENT \n \nLIBERTY MUTUAL GROUP, Carrier/TPA     RESPONDENT \n \n \n OPINION FILED JANUARY 14, 2025  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by ZACHARY F. RYBURN, Attorney at Law, Little rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn October 5, 2022, the claimant’s attorney, Laura Beth York, filed an AR-C requesting \nvarious  compensation  benefits  in  which he alleged  injuries  to his neck  and  back on  or  about \nDecember 10, 2019. The claim was denied in its entirety.  \nOn September 19, 2024, Ms. York filed a Motion to Withdraw as Counsel, which the Full \nCommission granted on October 18, 2024. No further action was taken regarding this claim. \n On October 21, 2024, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. A hearing was scheduled for December 19, 2024. Notice of \nthat hearing was sent to the claimant by certified mail, return receipt requested on November 14, \n2024,  and  November  27,  2024. United  States  Postal  Department  records  indicate  that  claimant \nreceived  and  signed  for  the  notice  on November  18,  2024,  and  on  December  7,  2024.  Despite \n\nMainor – H000463 \n \n-2- \nhaving received notice of the scheduled hearing, the claimant failed to appear at the hearing and \nhas failed to respond to the motion in any form or manner. \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2606,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H000463 CHARLES MAINOR, Employee CLAIMANT TRANSCO LINES, INC., Employer RESPONDENT LIBERTY MUTUAL GROUP, Carrier/TPA RESPONDENT OPINION FILED JANUARY 14, 2025 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansa...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2","denied:1"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:44:19.859Z"},{"id":"alj-H201405-2025-01-08","awccNumber":"H201405","decisionDate":"2025-01-08","decisionYear":2025,"opinionType":"alj","claimantName":"Defrenchi Harris","employerName":"Hall Tank Co","title":"HARRIS VS. HALL TANK CO. AWCC# H201405 January 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HARRIS_DEFRENCHI_H201405_20250108.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRIS_DEFRENCHI_H201405_20250108.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H201405 \n \nDEFRENCHI B. HARRIS, EMPLOYEE     CLAIMANT \n \nHALL TANK CO., LLC, EMPLOYER     RESPONDENT \n \nACCIDENT FUND GENERAL \nINSURANCE COMPANY, \nINSURANCE CARRIER, TPA      RESPONDENT \n \n \nOPINION FILED JANUARY 8, 2025 \nHearing before Administrative Law Judge, James D. Kennedy, on the 22\nND\n day of \nOctober 2024, in Little Rock, Arkansas. \nClaimant is represented by Gary Davis, Attorney at Law, Little Rock, Arkansas. \nRespondents are represented by Karen McKinney, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 22\nnd\n day of October 2024, to determine the issues \nof compensability  for  a work-related  injury to  the claimant’s neck and left  breast, plus \nreasonable and necessary medical in regard to these specific injuries, plus attorney fees.  \nThe respondents raised the defense of statute of limitations. The claimant contended that \nhe sustained admitted compensable injuries to his left shoulder, but that the respondents \nare denying compensability and treatment for his left breast and neck area which were also \ninjured at the time of the compensable accident.  \n The respondents  contend  that  the  claimant  sustained  a  left  shoulder injury  along \nwith  a  left upper  arm  and  elbow  injury  on  November  18,  2021,  and  the  claimant has \nreceived all the benefits to which he is entitled. Respondents have not controverted any \nbenefits  related  to  the  left  shoulder  injury.  The  respondents contend that the  claimant \n\nDEFRENCHI B. HARRIS – H201405 \nreported an injury to his left shoulder from working to tiedown ratchet straps, when he felt \na ripple or tear in his left shoulder. An MRI of the shoulder revealed an intact rotator cuff, \nbut a possible tear to the labrum. The claimant then underwent a left shoulder arthroscopy \nwith  a  subacromial  decompression  with  a  biceps tenodesis  on  February  9,  2022.  The \nclaimant was later involved in a post-surgery motor vehicle accident. The treating surgeon \ndid not note any issues with the claimant’s shoulder at the claimant’s follow up appointment \nfollowing the motor vehicle accident. The claimant obtained a Change of Physician from \nDr. Phillip Smith to Dr. D’ Orsay Bryant. Dr. Bryant saw the claimant and opined that the \nclaimant’s current problems were related either to the claimant’s cervical spine or his \nbrachial plexus. An MRI of the brachial plexus was normal. An IME was then performed by \nDr. James Adametz who opined that the claimant’s issues were not related to his brachial \nplexus. Dr. Jesse Abler performed an IME of the claimant’s left shoulder and he opined \nthat all the treatment the claimant had received to date was reasonable and the surgery \nthat was performed on the claimant does not typically create the neurologic disorder that \nwas experienced by the claimant.  \n A copy of the Pre-hearing order was marked “Commission Exhibit 1” and made part \nof  the  record without  objection.  The  Order  provided  that  the  parties  stipulated  that  the \nArkansas Workers’ Compensation Commission had jurisdiction of the within claim, that an \nemployer/employee relationship existed on November 18, 2021, and that the injury to the \nclaimant’s left shoulder was accepted as compensable and the appropriate benefits were \npaid.        \n The claimant’s and respondent’s  contentions  are all set  out  in  their  respective \nresponses  to  the  Pre-hearing Questionnaire  and  made  a  part  of  the  record  without \nobjection. The sole witness to testify was the claimant. From a review of the record as a \n\nDEFRENCHI B. HARRIS – H201405 \nwhole, to include medical reports and other matters properly before the Commission and \nhaving  had  an  opportunity  to  observe  the  testimony  and  demeanor of  the  witness,  the \nfollowing findings of fact and conclusions of law are made in accordance with Ark. Code \nAnn. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction  over  this \nclaim. \n2. That  an  employer/employee  relationship  existed  on November  18,  2021,  the \ndate  of  the  work-related  injury  to  the  left  shoulder which was  accepted  as \ncompensable. \n3. That  the claim involving injuries  to  the  neck  and  left  breast  are  barred  by  the \nstatute  of  limitations. Consequently,  the  question  of  the  medical  treatment  of \nthese injuries are moot. \n4. If  not  already  paid,  the  respondents are ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The Pre-hearing Order along with the Pre-hearing questionnaires of the parties were \nadmitted  into  the  record  without  objection. The  claimant  submitted one exhibit  that  was \nadmitted  without  objection which  consisted  of  166 pages  of  medical  reports. The \nrespondents  also  submitted an exhibit without  objection that consisted  of  24  pages  of \ndocuments.  \n The claimant, DeFrenchi Harris was the sole witness to testify. He was 49 years old \nat the time of the hearing and had obtained his GED. He was employed by the respondent \n\nDEFRENCHI B. HARRIS – H201405 \nand sustained work-related injuries on November 18, 2021, while strapping down a tank \nthat was to be transported on the back of a truck. The respondent manufactures large tanks \nwhich are  placed underground  or  aboveground at  gas  stations.  The  claimant stated  he \ninjured  himself  while  working  with a rachet  strap where he felt “a ripple effect as I was \ntightening the - - tightening the strap down.”  “It was like from - - from out there to like from \nin here and back here (Indicating), but it was like a - - it was like a - - I felt it, and that’s \nwhen  I  had  to  just  stop. I had to stop what I was doing at that moment.”  The  claimant \nadmitted he was pointing to the inside and the back side of the elbow. The claimant’s \nattorney described the pointing as the claimant pointing all the way up his arm from the – \nin his elbow area going all the way up into his shoulder over to the base of his neck. The \nclaimant went on to state that it was not painful when it occurred, but he knew he had to \nstop what he was doing.  He admitted receiving medical treatment, initially at Concentra, \nand later under Dr. Phillip Allan Smith, who performed surgery. (5 – 8)   \nHe also admitted to receiving some temporary disability workers’ compensation \nbenefits and on June 28, 2022, coming under the treatment of Doctor D’ Orsay Bryant.  He \nadmitted Dr. Smith performed the surgery and released him back to work, and after a few \nweeks of working, he started hurting and was sent back to work without the sling but was \nplaced on a weight restriction or light duty.  He started off while on light duty picking up \ndebris  around  the  compound.  He  felt  this  activity  was  causing  pain  and additional \ncomplications and told HR about it and they stopped him from picking up the debris. (Tr. 9, \n10)  He then was placed in the breakroom studying things like storm-water prevention and \nforklift operations.  He stated he eventually was told that the respondent did not have any \nmore light duty available. (Tr. 11) He was then placed in transitional work where he worked \n\nDEFRENCHI B. HARRIS – H201405 \nat an animal shelter for a short period of time.  He walked dogs, cleaned the dog pit, and \nwashed bowls. (Tr. 13) The claimant then testified as follows: \n“If you sit me down at my company job and you sit me down and you say \n‘Hey, we don’t want you to do nothing cause we don’t want you to jeopardize \nor hurt yourself any more than you are,’ I think it was a displacement or \ndouble  jeopardy  for  you  to  send  me  to another company that don’t have \nnothing to do with your company that don’t have nothing to do with your \ncompany, so it was like a double jeopardy to me that made me like ‘Hold on \ncause you - - you’re fixing to make - - have me to hurt myself more, and you \nalready don’t want to still do my surgery, right? \n \nThe  claimant  stated  that  he  returned  to  HR  and  told  them  he  could  not  go  back  to  the \nanimal shelter, and one reason was due to the travel to the shelter, and he thought that he \nstopped working somewhere around the end of the year. (Tr. 14, 15) \n The claimant admitted he had seen Dr. Bryant with the last visit on the 17\nth \nday of \nthe month of the hearing.  He did not have a return appointment at the time of the hearing. \n(Tr.  15,  16)  The  claimant additionally provided  that  he  had  not  received  any  temporary \ndisability benefits since the animal shelter, but that he was continuing to get a paycheck \nfrom the respondent. (Tr. 17, 18) \n Under cross examination, the claimant admitted that if he were injured today, and if \nhe went to the doctor today, his statements to the doctor would be more accurate than if \nhe went to the doctor a year later.  He admitted he was injured about three years ago and \nwas sent to Concentra.  He was shown page one of the Claimant’s exhibit which provided \nthat the claimant stated that he had pain in his left humerus from strapping down a load.  \nHe admitted that he did not mention pain in his chest or neck at the time due to the fact he \nwas not feeling pain in his chest or neck at the time.   He further admitted that he felt a pop \nin the biceps area and that was where he felt the pain. (Tr. 21 – 24) He was aware that he \nwas diagnosed with left shoulder pain at the time of his initial doctor visit.  He continued \n\nDEFRENCHI B. HARRIS – H201405 \nsuffering pain and then returned for a MRI, which showed a possible labral tear, and was \nthen referred to Dr. Smith at Ortho Arkansas, who ordered a second MRI and then operated \non his left rotator cuff.  After the surgery, he was released to return to work with no overhead \nuse of his left arm. (Tr. 25, 26) The claimant also admitted that he was placed on a lifting \nrestriction of two pounds but after a while, he complained to HR that bending over hurt his \narm.  He admitted the doctor did not say that he could not bend over and there was no \nrestriction about picking up something with his right arm.  He also admitted he was then \npaid  to  sit  down  and  study.  However,  an  issue  arose  between  him  and  the  building \nmanager, which caused issues with more than the claimant and the building manager, and \nhe was then sent to transitional work at an animal shelter in Jacksonville, about two years \nafter the injury. (Tr. 27 - 29) He also admitted that he did not want to go to Jacksonville and \nhis  last  day  at  the  shelter  appeared  to  be  November  7,  and  even  after  that  date,  the \nrespondents attempted to get him back to the shelter, but when they offered to send him \nback, he did not go, and that this was at the end of 2023. He further admitted that there \nwere  no  medical  reports  that  provided  he  was  unable  to  walk  dogs,  and  no  restrictions \nregarding his right arm. (Tr. 30 - 32) \n The claimant admitted that he lost control of his vehicle on black freezing ice and \nreturned  to  Dr.  Smith  on  March  15,  2022,  six  weeks after his surgery.  (Tr.  33) He also \nadmitted that Dr. Smith examined his shoulder after the motor-vehicle accident and stated \nhis shoulder would be okay. (Tr. 37) \nIn regard to his visit to Dr. Bryant, the claimant admitted nerve conductions studies \nwere ordered. (Tr. 39) He also admitted that a second MRI was ordered by Dr. Smith who \nthen performed surgery to repair a labrum tear. (Tr. 40) The claimant was questioned about \nthe report by Dr. Bryant dated September 13, 2022, which provided for a tear of the superior \n\nDEFRENCHI B. HARRIS – H201405 \nlabrum. (Tr. 42) He was also questioned about Dr. Bryant ordering a MRI of the cervical \nspine, in December of 2022. (Tr. 43) The claimant was then questioned about the AR-C \nfiled on March 31, 2022, which provided that the claimant had suffered an injury to his left \nshoulder and arm. (Tr. 45) The claimant was also questioned about an AR-C filed on July \n15, 2024, which referred to an injury date of November 18, 2021, which included the left \nshoulder, left breast area, and neck.  (Tr. 46) He was also questioned about a report from \nDr. Smith, dated March 21, 2022, which was after the motor vehicle accident, and which \nprovided that there was nothing wrong with the claimant, and the claimant agreed. (Tr. 47) \nIn regard to his neck injury, the claimant responded to the question, “So you didn’t injure \nyou’re neck at work, did you” with the simple response of “No.”  (Tr. 48) \n At this point, the claimant rested, and the parties were allowed to make a closing \nstatement.    The  claimant’s  attorney  stated  the  claimant’s  issues  involved  the  deltoid \nmuscle.  It was argued that the claimant’s complaints have gone all the way back to \nNovember 22, 2021, and his complaint involved the shoulder which included the muscles \nof the shoulder and the nerves that innervate the muscles of the shoulder.  (Tr. 49, 50) In \nregard to the argument involving the statute of limitations, the respondents contended there \nwere  no  objective  medical finding of “an injury to the deltoid to the chest.  There’s no \nmention of any medical findings that would take this outside of the internal shoulder injury \nmechanism that we have accepted. “We have accepted a labral tear, we’ve operated on a \nlabral tear, we’re continuing to provide treatment for the shoulder, whether it’s a labral tear \nor there’s something else.” The respondents went on to contend that the motor vehicle \naccident that occurred later was a clear independent intervening cause.  The AR-C was \nfiled  under  representation  by  an  attorney  claiming  an  arm  injury  and  a  shoulder  injury. \n\nDEFRENCHI B. HARRIS – H201405 \n“There’s no AR-C  filed  until  after  the  statute  of  limitations  has  run  on  a  claim  for  a  new \ninjury.”  (Tr. 53 – 55)    \n       In regard to medical records, the claimant submitted 166 pages of medical records. \nThe  initial  report  dated November  18,  2021,  occurred  when  the  claimant  presented  to \nConcentra with pain in his left humerus, due to strapping down a load, as he self-reported.  \nThe report provided for pain involving the AC joint, the deltoid, the anterior glenohumeral \njoint,  the  supraspinatus, and the  anterior, lateral, and  posterior  shoulder.  There  was  a \npositive  empty  can  test,  drop  arm  test, and Apley’s scratch arm test. The  assessment \nprovided  for  an  injury to  the  tendon  of  the  long head  of  the  left biceps and  left  shoulder \npain. The left shoulder x-rays provided no evidence of a left shoulder fracture or dislocation. \n(Cl. Ex. 1, P. 1 – 8) The claimant returned for a follow up on November 22, 2021, and the \nreport provided the pain was located in the left anterior shoulder and left biceps area.  The \nclaimant was allowed to return to work with no lifting of the left arm. (Cl. Ex. 1, P. 9 – 14)  \nOn  November  23,  2021,  the  claimant  received  his  first  MRI  at  Chenal  MRI.    The  report \nprovided for a larger posterior labrum tear with an intact supraspinatus, infraspinatus, and \nteres  minor  muscles with  edema  of  the  supraspinatus  and  to  a  lesser  extent  the \nsubscapularis muscles.  The report also provided for moderate glenohumeral joint effusion \nand mild accumulation of fluid in the subacromial subdeltoid bursa and with edema of the \nposterior lateral aspect of the deltoid muscle. A moderate strain of the biceps muscle was \nnoted as well as a low- grade strain of the deletion muscle. (Cl. Ex. 1, P. 15 – 17) \n The claimant returned to Concentra on November 29, 2021; December 2, 2021; and \nDecember 7, 2021.  The reports provided that the claimant reported pain in his right upper \nback  area and  shoulder  pain after  pushing a broom at work.    The  pain was in  the  left \nanterior  shoulder  and  left  biceps  area  with constant symptoms.    The  claimant  was then \n\nDEFRENCHI B. HARRIS – H201405 \nreferred to a physical therapist to improve his range of motion.  The reports provided that \nthe therapy proceeded as expected. (Cl. Ex. 1, P. 18 – 31)  \n The  claimant  was  referred  to  Dr.  Phillip  A.  Smith  on  December  10,  2021.  The \nassessment provided for a left posterior labral tear and went on to provide that the original \nMRI was of poor quality and a repeat MRI was recommended. (Cl. Ex. 1, P. 32 – 38) A \nsecond MRI was obtained on January 14, 2022.  Under impression, the report provided \nthat  no  rotator  cuff  tear  was  identified  but  that  there  was  a  tear  of  the  posterior  labrum.  \nThere was mild edema in the subscapularis and supraspinatus muscles most consistent \nwith a mild grade 1 strain which have improved since the previous study. (Cl. Ex. 1, P. 39, \n4)  The  claimant  then  returned  to  Dr.  Smith  on  January  20,  2022,  and  a left  shoulder \narthroscopy with labral debridement versus labral repair was discussed. (Cl. Ex. 1, P. 41 – \n47)  \n On  January  26,  2022,  Dr.  Smith  issued a return  to  work note which provided  the \nclaimant should not return to work until evaluated post-operatively. (Cl. Ex. 1, P. 48, 49) \nThe claimant then returned to Dr. Smith on February 9, 2022, for a left shoulder arthroscopy \nwith a labral debridement and a biceps tenodesis for a left shoulder posterior tear. (Cl. Ex. \n1, P. 50 – 52) He again returned to Dr. Smith for a follow up on February 17, 2022.  The \nreport  provided  that  the  left  shoulder  showed  healed  portals  with  no  signs  of  infection.  \nTherapy was started and a prescription for pain medication was provided.  A return-to-work \nnote was provided which stated the claimant could return to work on February 18, 2022, \nwith  the  left  arm  in  a  sling  and with no  use  of  the  left  arm.  (Cl.  Ex.  1,  P.  53 – 59) The \nclaimant retuned to Dr. Smith on March 15, 2022.  The report provided for healed incisions \nbut with atrophy of his left extremity due to non-use. (Cl. Ex. 1, 60 – 64)  \n\nDEFRENCHI B. HARRIS – H201405 \n The claimant also submitted medical records dated March 22, 2022, which provided \nhe presented to the emergency medicine department of Baptist Health with left shoulder \npain, along with pain and swelling of the left arm.  The claimant was discharged home with \nself-care.   Claimant was  instructed  to  follow  up  with his  primary  care  physician.   A form \nprovided the claimant should be excused from work. (Cl. Ex. 1, P. 65 – 87) \n Medical  records  from  Baptist  Health  Therapy  Center  dated  March  25,  2022, \nprovided that the claimant presented for physical therapy due to shoulder pain from a work-\nrelated  injury with  a chief  complaint of pain.    The  claimant  was  educated  in  regard  to  a \nhome exercise program with manual therapy techniques as needed. (Cl. Ex. 1, P.  88 – \n105) \n The claimant returned to Dr. Smith on April 1, 2022. The report described pain in \nthe left elbow.  A return to work note provided that the claimant could return to work on \nApril 2, 2022, with a restriction of lifting no more than two pounds with no overhead activity \nuntil April 26, 2022. (Cl. Ex. 1, P. 106 – 112) The claimant then returned to Baptist Health \nRehabilitation institute on April 4, 2022, for a left shoulder biceps tendinosis protocol.  The \ntreatment emphasis was focused on pain relief and range of motion improvements. (Cl. Ex. \n1, P. 113 – 116) The following day, the claimant then returned to the Baptist Health Therapy \nCenter. The treatment focus continued to be pain relief with an increased range of motion. \n(Cl. Ex. 1, 117 – 123) The claimant then returned to Dr. Smith on April 6, 2022.  This report \nmentioned atrophy of the left deltoid and bicep and went on to provide that there was a \npossibility of a disc herniation causing the increased pain and weakness involving the left \narm.  Dr. Smith also stated that he would like to order an MRI of the cervical spine.  The \nclaimant was then sent back to work with a release which provided for a two-pound lifting \nlimit with no overhead activity, until after a MRI. (Cl. Ex. 1, P. 124 – 128) The claimant then \n\nDEFRENCHI B. HARRIS – H201405 \nreturned to the Baptist Health Rehabilitation Institute on May 2, 2022, and Baptist Health \nTherapy Centers on May 17, 2022, and May 20, 2022. (Cl. Ex. 1, P. 129 – 139)  \n On June 28, 2022, the claimant presented to Dr. D’Orsay D. Bryant.  The report \nprovided that there was tenderness in the anterior shoulder, the subacromial region, and \nthe  rotator  cuff,  with  a  positive  impingement  sign,  along  with  decreased  strength  with \nresisted abduction. An EMG/NCS study was recommended along with a left shoulder MRI. \n(Cl.  Ex.  1,  P.  140 – 142.)    The  claimant  then  received  a  left  shoulder  arthrogram  on \nSeptember 13, 2022.  There were no findings of a left rotator cuff tear, but degenerative \nchanges were noted in the AC subacromial subdeltoid bursa. (Cl. Ex. 1, P. 143) The MRI \nof  the  shoulder which  was read by Dr.  Al  S.  Alexander on  the  same  date  provided that \nthere  was  a  tear  of  the  superior  labrum  but  no  muscular  atrophy along  with  moderate \nosteoarthritis of the AC and the glenohumeral joint. (Cl. Ex. 1, P. 144)  \n The claimant then presented to Baptist Health on November 8, 2022, to the neuro \ndiagnostics  laboratory.    The  report  provided that there was left  brachial  plexopathy  with \nsevere involvement of the upper trunk vs. polyradiculopathy. “There is minimal residual \ninnervation of the deltoid and infraspinatus muscles.  MRI imaging of the cervical spine and \nbrachial plexus are recommended.” (Cl. Ex. 1, P. 146 – 148) \n The claimant returned to Dr. Bryant on November 23, 2022.  The report provided \nthat a MRI  that  was performed  in  Little  Rock  provided  for  prior  biceps  tendon tenodesis \nwith moderate osteoarthritis of the AC joint and the glenohumeral joint and a superior labral \ntear. Dr. Bryant opined under impression that the left superior labral tear was confirmed by \nthe  MRI  with  left  brachial  plexopathy along with  severe  involvement  of  the  upper  nerve \ntrunk.  An  MRI  of  the  cervical  spine  and  a  MRI  of  the  brachial  plexus  was  strongly \n\nDEFRENCHI B. HARRIS – H201405 \nrecommended as further diagnostic workup of the patients severe left brachial plexopathy \nis a result of the work related injury on 11/18/2021. (Cl. Ex. 1, P. 149 – 150) \n On December 9, 2022, the claimant obtained another MRI, this time at Chenal MRI.  \nThe MRI was of the cervical spine.  Under impression, the report provided for an “abnormal \nventral cord signal bilaterally at C3 – 4 suspected to reflect myelomalacia, within the lateral \nleft  hemicord  suspected  to  reflect  myelomalacia,  and  in  the  bilateral  ventral  C5-6  cord \nfavored   to   reflect   myelomalacia   but   a   component   of   active   impingement   related \nmyelopathic changes of the cord at C5–6 not excluded.” The report further provided that \nthere  was  moderate  canal  and  severe  neural  foraminal  stenosis  with  cord  impingement \nrelated from disc bulging and spondylosis.  At C4-5 and C3-4 there was found central canal \nand severe neural foraminal stenosis and negative findings of a mass or lymphadenopathy \nor neuritis. (Cl. Ex. 1, P. 151 - 153) The claimant then returned to Dr. Bryant on December \n9, 2022, who opined the pathology of the cervical spine correlated to the severe brachial \nshoulder  plexopathy  found  on  the  EMG/NCS  and  that  the  claimant was  a  suitable \ncandidate for referral to a neurosurgeon. “This workup definitively explains the patients \nclaims  of  persistent  left  shoulder  pain  and  weakness  following  his  work-related  injury  of \nNovember 18, 2021.  (Cl. Ex. 1, P. 154, 155) \n The claimant presented to Dr. James Adametz of Neurological Surgery Associates \non March 14, 2023, who stated that he was aware of the work-place injury and the later \nmotor vehicle accident.  On exam, he observed atrophy of the deltoid and biceps of the left \narm. He opined that he thought the claimant was suffering more of a cervical spine and \nspinal cord issue than a brachial plexus issue. Naturally, some of it could have been from \nthe shoulder injury and surgery but I believe it is more extensive than you could explain \nfrom that.  At this point I am not sure anything can be done to really reverse his neurologic \n\nDEFRENCHI B. HARRIS – H201405 \nsymptoms  but  to  prevent  further  damage  he  would  likely  benefit  from  surgery  on  the \ncervical spine. (Cl. Ex. 1, P. 156 – 157)   \nThe claimant presented to Dr. Jesse Abeler of Bowen and Hefley Orthopedics on \nAugust  8,  2023, for  pain of the  right  and  left shoulder.    The  report  provided  that  the \nsymptoms began in October of 2021, after an injury.  The claimant presented for an IME.  \nConsiderable atrophy of the left upper trapezius, left deltoid, left biceps, and triceps was \nnoted.  The report by Dr. Abeler went on to provide that in his expert opinion, he felt the \nclaimant would benefit from a neurosurgery evaluation addressing the multilevel cervical \ncanal and foraminal stenosis which was felt to be leading to his left shoulder and upper \narm atrophy and objective weakness.  Shoulder x-rays of the left shoulder provided for left \nshoulder  atrophy  with multiple  level  spondylosis  and  radiculopathy  of the  cervical  spine.  \nDr. Abler opined as follows: “It is my opinion his cervical findings of foraminal stenosis and \ncanal stenosis are creating these complaints and he would benefit from an evaluation and \npossible treatment with a neurosurgeon.  It is my opinion that [n his initial injury the “ripple” \nthat he felt along his upper extremity was neurological in nature at his initial reported injury \nand  related  to  his  initial  injury  on  11/18/2021.    I  feel  the  shoulder  treatment  has  been \nreasonable and a review of the operative note demonstrates an appropriate technique for \nlabrum debridement, biceps tenodesis, and subacromial decompression.  This procedure \ntypically does not create the neurological disorder seen with the patient today.  I expect he \nhas reached maximal medical improvement regarding the shoulder biceps tenodesis, and \nhe demonstrates a separate issue regarding the neck related to his initial injury.  (Cl. Ex. \n1, P 158 – 164) \n\nDEFRENCHI B. HARRIS – H201405 \n The respondents submitted 24 pages of documentary evidence without objection.  \nThe original Arkansas Form C was filed on March 31, 2022, where the claimant contends \nthat he injured his shoulder and arm on November 18, 2021.  The second Form C was filed \non  July  15,  2024, and  here the  claimant  contends that he sustained multiple  injuries \nincluding his left shoulder, left breast area, and neck, on November 18, 2021. (Resp. Ex. \n1, P. 1, 2) \n The  respondents  also  submitted  documents  that  provided claimant  was  offered \nmodified  alternative  work.  (Resp.  Ex.  1,  P.  3 – 5)  There was  also  an  email  from \nrespondent’s attorney that provided the claimant had failed to report to his “transitional duty \njob” and this was dated November 17, 2023. (Resp. Ex. 1, P. 6) The documents further \nprovided that the claimant was offered alternative work at the Jacksonville Animal Shelter \nand the claimant failed to appear. (Resp. Ex. 1, P. & - 16) The respondent then made an \noffer of an additional transitional to work assignment on December 21, 2023. (Resp. Ex. 1, \nP. 18 -23)   \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn the present matter, the threshold issue before us involves the statute of limitation \ndefense raised by the respondents. The issue is whether the claimant timely filed a claim \nfor a  work-related  neck and  left  breast injury along with  the  related  medical  benefits in \nregard  to  his work-related  compensable injury. The  law is clear  that  it  is the claimant’s \nburden to prove that he or she acted within the time allowed for filing of a claim for additional \ncompensation benefits. Stewart v. Ark. Glass Container, 2009 Ark. App. 300, 307 S.W.3d \n614 (2009).  Arkansas Code Annotated section 11-9-702 sets forth the following limitations: \n(a) Time for filing additional compensation. \n\nDEFRENCHI B. HARRIS – H201405 \n(b)  In  cases  in  which  compensation,  including  disability  or  medical,  has \nbeen paid on account of an injury, a claim for additional compensation shall \nbe barred unless filed with the commission within one (1) year from the date \nof the last payment of compensation or two (2) years from the date of the \ninjury whichever is greater. \n(c)  A  claim for additional  compensation  must  specifically  state  that  it  is  a \nclaim  for  additional  compensation.    Documents  which  do  not  specifically \nrequest  additional  benefits  shall  not  be  considered  a  claim  for  additional \nbenefits.  See Arkansas Code Ann. 11-9-702 (b) (1), (c) \nHere, the parties agree that the claimant injured his left shoulder on November 18, \n2021, the claimant was sent to Concentra on the day of the injury, and his left shoulder \nwas accepted as compensable.  He was appropriately treated at the time for his shoulder \ninjury, receiving MRIs, and  eventually  surgery  by  Dr.  Smith  on February  9,  2022.  The \nclaimant continued to see Dr. Smith but was apparently not satisfied with the results, and \non June 8, 2022, presented to Dr. Bryant, who found no evidence of a rotator cuff tear but \ndid  find  a  tear  of  the  superior  labrum  and  muscle  atrophy after  reviewing  an  MRI dated \nDecember 9, 2022.  The claimant was again seen by Dr. Bryant on December 15, 2022, \nfor problems that he was suffering in regard to his left shoulder.  Dr. Bryant opined that the \nclaimant was a suitable candidate for a referral to a neurosurgeon, and the claimant was \nlater seen by  Dr.  Adametz  of  Neurological  Surgery  Associates  on March  14,  2023,  and \nthen later by Brown and Hefley Orthopedics and Dr. Jesse Abeler on August 8, 2023.   \nThe  original AR-C Form  filed on  March 31,  2022, in  regard  to  the  November  18, \n2021, injury did not mention a left breast or neck injury.  A claim for these injuries was not \nmade until the filing of the second AR – C Form on July 15, 2024.  The filing of the AR – C \nForm on March 31, 2022, did not toll the running of the statute of limitations for injuries to \nthe  left  breast  and neck.    See Wynne  v.  Liberty  Trailer,  2022 Ark.  65,  641  S.W.3d  621 \n(2022). Consequently, the claim regarding the left breast and neck are barred by the statute \nof limitations.  It is also noted that there was no proof regarding a left breast injury and the \n\nDEFRENCHI B. HARRIS – H201405 \nclaimant responded “No” when  asked  if  he  injured  his  neck  at  work during  cross \nexamination.    \nAfter  weighing  the  evidence  impartially,  without  giving  the  benefit  of  the  doubt  to \neither party, it is found that the claimant’s claim for a work-related neck injury and left breast \ninjury are  barred  by  the  statute  of  limitations, as  well  as a  failure  to satisfy  the required \nburden of proof by a preponderance of the credible evidence in regard to the claimed neck \nand breast injury.  If not already paid, the respondents are ordered to pay the cost of the \ntranscript forthwith. \nIT IS SO ORDERED. \n      ___________________________  \n      JAMES D. KENNEDY    \n      Administrative Law Judge","textLength":31597,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201405 DEFRENCHI B. HARRIS, EMPLOYEE CLAIMANT HALL TANK CO., LLC, EMPLOYER RESPONDENT ACCIDENT FUND GENERAL INSURANCE COMPANY, INSURANCE CARRIER, TPA RESPONDENT OPINION FILED JANUARY 8, 2025 Hearing before Administrative Law Judge, James D. Kennedy, on the...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["neck","shoulder","rotator cuff","cervical","back","fracture","strain"],"fetchedAt":"2026-05-19T22:44:09.398Z"},{"id":"alj-H401463-2025-01-08","awccNumber":"H401463","decisionDate":"2025-01-08","decisionYear":2025,"opinionType":"alj","claimantName":"Robinson Oswald","employerName":"Cal Ark International Inc","title":"ROBINSON VS. CAL ARK INTERNATIONAL INC. AWCC# H401463 January 08, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/OSWALD_ROBINSON_H401463_20250108.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OSWALD_ROBINSON_H401463_20250108.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H401463 \n \nOSWALD W. ROBINSON, EMPLOYEE     CLAIMANT \nCAL ARK INTERNATIONAL INC., EMPLOYER   RESPONDENT \nSAFETY FIRST INSURANC CO.  CARRIER/TPA   RESPONDENT \n            \nOPINION FILED JANUARY 8, 2025 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on January 7. 2025. \nClaimant is pro se and failed to appear. \nRespondents are represented by their attorney, Guy Alton Wade, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on January 7, 2025, in Little Rock, \nArkansas on respondent’s Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  The \nclaimant was pro se and failed to appear for the hearing.  A First Report of Injury was filed \non February 27, 2024, which provided that the claimant was off duty when he fell on ice \nat  a  truck  stop.    The  AR – 2 filed  February  28,  2024, provided  that  based  upon an \ninvestigation, the  Respondent was unable  to  determine  that  the  claimant  was  injured \nduring  the  course  and  scope  of  his  employment.    Discovery  was  propounded  by  the \nRespondents on April 10, 2024, but no response was ever filed.  A Motion to Dismiss was \nfiled by letter dated November 1, 2024, requesting that the matter be dismissed for failure \nto prosecute but no response was ever filed.  There was a question about the claimant’s \nrepresentation,  but  Ms.  Laura  Beth  York  of  Little  Rock,  who  never  entered  an  entry  of \n\nOSWALD W. ROBINSON – H401463 \nappearance, confirmed by an email dated November 4, 2024, that she did not represent \nthe  claimant  and  that  she  trusted  that  the  appropriate  notice  would  be  provided  to  the \nclaimant in reference the Motion to Dismiss.  \n The claimant has not requested a hearing to date and more than six months have \npassed since the first Report of Injury or Illness on February 27, 2024.   \n Appropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was set for January 7, 2025, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nGuy Alton Wade appeared on behalf of the Respondents and asked that the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondent, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to \ndismiss this claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3080,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401463 OSWALD W. ROBINSON, EMPLOYEE CLAIMANT CAL ARK INTERNATIONAL INC., EMPLOYER RESPONDENT SAFETY FIRST INSURANC CO. CARRIER/TPA RESPONDENT OPINION FILED JANUARY 8, 2025 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas on...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:44:11.539Z"},{"id":"alj-H405149-2025-01-07","awccNumber":"H405149","decisionDate":"2025-01-07","decisionYear":2025,"opinionType":"alj","claimantName":"Cynthia Dean","employerName":"Five Rivers Medical Center, Inc","title":"DEAN VS. FIVE RIVERS MEDICAL CENTER, INC. AWCC# H405149 January 07, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Dean_Cynthia_H405149_20250107.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Dean_Cynthia_H405149_20250107.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H405149 \n \nCYNTHIA DEAN, \nEMPLOYEE                                                                                                              CLAIMANT \n \nFIVE RIVERS MEDICAL CENTER, INC., \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nRISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED JANUARY 7, 2025 \n \nHearing conducted on Friday, December 27, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Ms. Cynthia Dean, Pro Se, of Imboden, Arkansas, did not appear in person at the \nhearing.  \n \nThe Respondents were represented by the Honorable S. Shane Baker, Jonesboro, Arkansas. \n \n \nI.  BACKGROUND \nThis matter comes before the Commission for a full hearing. However, when the Claimant \nfailed to show up for the full hearing, Respondents’ counsel made a motion to  convert  the  full \nhearing  into  a  motion  to  dismiss  hearing.  I  granted  the  motion.  Respondents next  argued  for \ndismissal of the claim. Respondents admitted Respondents Exhibit 1, a written Motion to Dismiss \nwith exhibits, consisting of 4 pages. Also, admitted into evidence was blue-backed Form AR-C, \nForm  AR-1,  Form  AR-2,  copy  of  hearing  notice/  Prehearing  Order  filed  October  29,  2024, and \ncertified return receipt dated November 1, 2024, as discussed infra. \nThe Claimant worked for Respondent/Employer as a cook and allegedly injured herself on \nJuly 12, 2024. The record reflects on August 12, 2024, a Form AR-C was filed with the  \n \n\nDEAN, AWCC No. H405149 \n \n2 \n \nCommission,  purporting  that  Claimant became  lightheaded  and  sick  to  her  stomach  when  she \nopened  the  convection  oven  and  smelled  the  fumes.  She  did  not  pass  out  due  to  the  fumes. On \nAugust 13, 2024, a Form AR-1 was filed with the Commission purporting that this incident was \nreported to Respondent/Employer on the same day as the incident and that the Claimant went to \nthe emergency department to be seen. On August 13, 2024, a letter and Form AR-2 was filed by \nRespondents denying compensability of the alleged injury.  \nA prehearing conference took place on October 29, 2024, establishing the issues in the case \nand  a  date  for  the  matter  to  be  heard,  December  27,  2024.  A  prehearing  order  was  filed  on the \nsame day as the prehearing conference and was sent to Claimant’s address of record, certified mail, \nas official notice of the full hearing. The Claimant received the notice on November 1, 2024.  \nThe Claimant sent an email to opposing counsel and the Commission requesting that her \nclaim be dropped because she had a sick witness. In an email sent to both parties on December 25, \n2024, I asked the Claimant if she is requesting a continuance due to her sick witness, if so, I will \nconsider her motion. I also informed the Claimant if she wanted to dismiss her claim, I will be at \nthe courthouse December 27, 2024, and at that time if the Respondents made a motion to dismiss \nthen  I  will  entertain  it,  especially if she wasn’t present for the full hearing. In  an  email  dated \nDecember 26, 2024, Claimant stated, “I want to just drop my case and put this behind me...”. In \npreparation for the full hearing next day, the Respondents filed a motion to dismiss and attached \nClaimant’s emails as an exhibit. The Claimant did not appear for the full hearing on December 27, \n2024, as a result, the Respondents made a motion to dismiss. I have heard Respondents argument \non the motion, accepted evidence, and taken the matter under advisement.  \n \n \n\nDEAN, AWCC No. H405149 \n \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the December 27, \n2024, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute her claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with a  full  hearing  and AWCC  Rule  099.13, the  Commission  scheduled  and \nconducted  a  hearing,  with  reasonable  notice, to  the  Claimant. The  certified  hearing  notice  was \nclaimed by Claimant on November 1, 2024. Thus, I find by the preponderance of the evidence that \nreasonable notice was given and received by the Claimant.  \n\nDEAN, AWCC No. H405149 \n \n4 \n \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution. The  Claimant  has  sent  emails  to  the \nCommission and opposing counsel requesting to drop her claim so she can put this matter behind \nher. The Claimant confirmed her desire to drop her claim when she failed to appear at her own full \nhearing that she requested. Thus, it is clear, the Claimant has abandoned her claim. Therefore, I do \nfind by the preponderance of the evidence that Claimant has failed to prosecute her claim. Thus, \nRespondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6344,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H405149 CYNTHIA DEAN, EMPLOYEE CLAIMANT FIVE RIVERS MEDICAL CENTER, INC., SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JANUARY 7, 2025 Hearing conducted on Friday, December 27, 2024, before the...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:44:07.309Z"},{"id":"alj-H004697-2025-01-02","awccNumber":"H004697","decisionDate":"2025-01-02","decisionYear":2025,"opinionType":"alj","claimantName":"Lawrence George","employerName":"Windsor Door, LLC","title":"GEORGE VS. WINDSOR DOOR, LLC AWCC# H004697 January 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GEORGE_LAWRENCE_H004697_20250102.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GEORGE_LAWRENCE_H004697_20250102.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H004697 \n \n \nLAWRENCE S. GEORGE, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nWINDSOR DOOR, LLC,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nSTANDARD FIRE INSURANCE, CO.,/TRAVELERS  \nINDEMNITY COMPANY, INSURANCE CARRIER/ \nTHIRD PARTY ADMINISTRATOR (TPA)                                                          RESPONDENT                                                                          \n          \nOPINION FILED JANUARY 2, 2025   \n \nHearing held before Administrative Law Judge Chandra L. Black, Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, did not appear at the hearing. \n \nRespondents represented  by the  Honorable Guy  Alton  Wade, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on December 19, 2024, in the present case to determine whether this \nArkansas workers’ compensation claim should  be  dismissed  for  failure  to  prosecute  under  the \nprovisions of Ark. Code Ann. §11-9-702, and/or Arkansas Workers’ Compensation Commission \nRule 099.13.  This hearing was held pursuant to the ruling in Dillard v. Benton County Sheriff’s \nOffice, 87 Ark. App. 379, 192 S.W. 3d 287 (2004). \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \nThe  record  consists  of December 19, 2024, hearing transcript and  the  documents held \ntherein.  Commission’s Exhibit consists of two (2) pages, which were provided to the Commission \n\nGEORGE-H004697 \n \n2 \n \nby the  United  States  Postal  Service concerning  delivery  information  for  notices  sent  to  the \nClaimant, and Respondents’ Exhibit 1 consists of nineteen (19) numbered  pages of pleadings, \ncorrespondence, and various other forms related to this claim. \n                                                             Procedural History \n On May 27, 2020, the Claimant’s attorney filed with the Commission a claim for Arkansas \nworkers’ compensation benefits via a Form AR-C.  Per this document, the Claimant alleged that \nhe sustained injuries during the course and in the scope of his employment with the respondent-\nemployer, on May 3, 2022, while working on a machine that pushes metal out.  According to this \ndocument,  the  Claimant  injured  his  right  arm,  right  shoulder  and  other  whole body.  The \nClaimant’s attorney requested both initial and additional benefits.  In fact, his attorney checked off \nall the boxes for every conceivable workers’ compensation benefit under the law. \n  The  respondent-insurance-carrier  filed  a  Form  AR-2 with  the  Commission  on July 20, \n2022.   Per  this  form,  the Respondents accepted  this  claim as  a compensable claim and  began \nmaking payments for workers’ compensation benefits to and on behalf of the Claimant.   \n Subsequently although pleadings were filed and various other discovery was started in this \nmatter, there  was no  bona  request  for  a  hearing  ever  made.  It  appears  that  ultimately,  the \nRespondents paid a 6% impairment rating, and the Claimant returned to work for the Respondents.  \nAs a result, the remaining issue of wage-loss disability was made moot. \n Therefore, the Claimant’s attorney filed a request/motion to withdraw as counsel of record \nfor the Claimant in this claim.  On March 5, 2024, the Full Commission entered an order granting \nthe motion for the Claimant’s attorney to withdraw from representing him in this matter.  \n Since this time, the Claimant has not tried to pursue or otherwise resolve his claim, nor has \nhe made a bona fide request for a hearing since the filing of the Form AR-C.  \n\nGEORGE-H004697 \n \n3 \n \n Therefore, on September 30, 2024, the Respondents filed a Motion to Dismiss for Failure \nto Prosecute, with the Commission, along with service of a copy of the motion to the Claimant.  \nHence, the Respondents mailed a copy of said motion to the Claimant via the United States Postal \nService.  \nThe Commission sent a letter to the Claimant on October 15, 2024, informing the Claimant \nof the Respondents’ motion, and a deadline of twenty (20) days, for filing a written response.  Said \nletter was mailed to the Claimant by both first-class and certified mail.  Per information received \nfrom the United States Postal Service, on October 18 this item was delivered to the Claimant’s last \nknown address listed with the Commission.  The signature of the recipient taking delivery of this \nitem is indecipherable.  However, the letter sent via first-class mail has not been returned to the \nCommission.   \n   There was no response whatsoever from the Claimant.   \n Therefore,  pursuant  to a  Hearing  Notice sent  to  the  parties  on November 8,  2024,  the \nCommission notified them that this matter had been set for a hearing on Respondents’ motion to \ndismiss this claim.  Said hearing was scheduled for December 19, 2024, at the Arkansas Workers’ \nCompensation Commission in Little Rock, Arkansas. \nSaid  notice  was  mailed  to  the  Claimant  by  both  first-class  and  certified  mail. Per \ninformation  received  from  the  Postal  Service on  November  23 they  were  unable  to  locate  any \ndelivery information in their records for this item.  However, the letter sent by first-class mail has \nnot been returned to the Commission.  Under these circumstances, I find that the Claimant received \nproper notice of the hearing. \n Still, there was no response from the Claimant.   \n\nGEORGE-H004697 \n \n4 \n \nNevertheless,  the  hearing  was  held  as  scheduled.  The Claimant did  not appear at the \nhearing.  However, the Respondents’ counsel appeared at the hearing and argued that the Claimant \nhas  failed  to  prosecute  his claim for workers’ compensation benefits.  More  specifically, the \nRespondents’ attorney noted that the Claimant has not taken any action to advance his claim since \nthe filing of the Form AR-C, which was done more than six (6) months ago.  He further noted that \nthe Claimant has not taken any affirmative action to resist his claim being dismissed.  Therefore, \nthe Respondents’ attorney moved that this claim be dismissed pursuant to Ark. Code Ann. §11-9-\n702, and/or Commission Rule 099.13 without prejudice.  \nAdjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in the  \nRespondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4):  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nFurthermore, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \n\nGEORGE-H004697 \n \n5 \n \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed  with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute his claim for workers’ compensation \nbenefits since the filing of the Form AR-C, which was done over more than six (6) months ago.  \nMore importantly, nor  has the Claimant resisted  the motion  for dismissal of  his  workers’ \ncompensation claim.   \nHere, the evidence preponderates that the Claimant has failed to prosecute this claim for \nworkers’ compensation benefits.  Under  these  circumstances, I  am  convinced  that  the Claimant \nhas abandoned this claim.  Accordingly, after consideration of the evidence before me, I find that \nthe Respondents’ motion  to dismiss for  a  lack  of  prosecution to  be  well  taken.  I thus find  that \npursuant to the provisions of Ark. Code Ann.§11-9-702, and Commission Rule 099.13, this claim \nfor workers’ compensation benefits is  hereby  respectfully dismissed without prejudice to  the \nrefiling within the limitation period specified under the Arkansas Workers’ Compensation Act (the \n“Act”). \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n\nGEORGE-H004697 \n \n6 \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            4. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \n                                                           ORDER \n \nBased  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nArkansas workers’ compensation benefits. This dismissal is per Ark. Code Ann. §11-9-702, and \nCommission  Rule  099.13, without  prejudice to  the  refiling  of  this claim  within the limitation \nperiod specified under the Act. \n           IT IS SO ORDERED. \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":11151,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H004697 LAWRENCE S. GEORGE, EMPLOYEE CLAIMANT WINDSOR DOOR, LLC, EMPLOYER RESPONDENT STANDARD FIRE INSURANCE, CO.,/TRAVELERS INDEMNITY COMPANY, INSURANCE CARRIER/ THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FILED JANUARY 2, 2025 Hearing held before ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:44:03.048Z"},{"id":"alj-H303281-2025-01-02","awccNumber":"H303281","decisionDate":"2025-01-02","decisionYear":2025,"opinionType":"alj","claimantName":"Sydney Kennedy","employerName":"Horseshoe Canyon Ranch LLC","title":"KENNEDY VS. HORSESHOE CANYON RANCH LLC AWCC# H303281 January 02, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KENNEDY_SYDNEY_H303281_20250102.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KENNEDY_SYDNEY_H303281_20250102.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H303281 \n \nSYDNEY M. KENEDY, EMPLOYEE   CLAIMANT \n \nHORSESHOE CANYON RANCH LLC, EMPLOYER RESPONDENT \n \nAMTRUST NORTH AMERICA/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED JANUARY 2, 2025 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is pro se and did not appear at the hearing. \n \nRespondents are represented by WILLIAM C. FRYE, Attorney, North Little Rock Arkansas \n \nOPINION/ORDER \n \n On   April  11,  20024,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on May  5, \n2023.   Claimant  was represented at the time by Mark A. Peoples, who filed a motion to withdraw on \nAugust 26, 2024 and was allowed to withdraw on October 3, 2004.    \nOn October  7,  2024, respondent  filed  a  Motion  to  Dismiss,  alleging  that  it  had  been  more \nthan six months since claimant filed her Form AR-C with the Commission, but she had not made a \nrequest for a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for \nDecember 19, 2024.  Notice of the scheduled hearing was sent to Claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was returned unclaimed on November  14, \n2024.    Claimant did not respond to respondent’s motion and did not appear in person at the hearing \non December 19, 2024.  \nI find it has been more than six months since prior to this hearing and that no request for a \n\nKennedy-H303281 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2154,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303281 SYDNEY M. KENEDY, EMPLOYEE CLAIMANT HORSESHOE CANYON RANCH LLC, EMPLOYER RESPONDENT AMTRUST NORTH AMERICA/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED JANUARY 2, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washing...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:44:05.242Z"},{"id":"alj-H300453-2024-26-06","awccNumber":"H300453","decisionDate":"2024-26-06","decisionYear":2024,"opinionType":"alj","claimantName":"Ricky Griggs","employerName":null,"title":"GRIGGS VS. GEORGE FISHER HARVEL, LLCAWCC# H300453June 26, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GRIGGS_RICKY_H300453_20242606.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRIGGS_RICKY_H300453_20242606.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H300453 \n \nRICKY GRIGGS, EMPLOYEE        CLAIMANT \n \nGEORGE FISHER HARVEL, LLC, EMPLOYER          RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, CARRIER/TPA        RESPONDENT \n \n \nOPINION FILED 26 JUNE 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 26 June 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nMr. Guy Wade, Friday, Eldridge & Clark, LLP, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 26 June 2024. This case relates to an alleged workplace injury, \nsustained on or about 28 December 2022.  \n A Form C was filed on behalf of the claimant on 23 January 2023 by Rainwater, Holt \n& Sexton. A First Report of Injury was filed on 24 January 2023 and a Form 2 was filed the \nsame day, accepting the claim as medical-only. A Form 4 noting the closing of payments \nmade on the claimant’s behalf was filed by the respondents on 6 September 2023. \n On 8 March 2024, the claimant’s attorney requested to withdraw as counsel. By way \nof an Order dated 10 April 2024, the Full Commission granted the motion to withdraw. \nThen, on 17 April 2024, the respondents requested a dismissal of this matter for failure to \nprosecute the claim. See Exhibit No 1.  \nA letter from the Commission to the claimant communicating that motion was dated \n23 April 2024 and another letter setting a hearing on the motion was dated 15 May2024. \n\nR. GRIGGS- H300453 \n2 \n \nThe Commission’s file is absent any responsive correspondence from the claimant. I noted \nat the hearing that mailings from the Commission to claimants are sent via both First \nClass and Certified Mail with return receipts requested. Returned mail is regularly \nappended to the Commission’s file. This claim file includes only a return of the 23 April \n2024 letters providing notice of the respondents’ motion.  \nThe respondents appeared on 26 June 2024, presented their motion, and offered \nsupporting evidence into the record. Before going on the record, the respondents’ counsel \nsurveyed the Commission’s waiting area, and the claimant was not present. As argued by \nthe respondents at the hearing, the file reflects no request for a hearing on a claim in the \nrelevant time preceding the filing of their motion. And the claimant did not appear at the \nhearing to resist the dismissal of this claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3193,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H300453 RICKY GRIGGS, EMPLOYEE CLAIMANT GEORGE FISHER HARVEL, LLC, EMPLOYER RESPONDENT TRAVELERS INDEMNITY COMPANY, CARRIER/TPA RESPONDENT OPINION FILED 26 JUNE 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge J...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:53:19.803Z"},{"id":"full_commission-H109984-2024-16-16","awccNumber":"H109984","decisionDate":"2024-16-16","decisionYear":2024,"opinionType":"full_commission","claimantName":"Shauna Torrence","employerName":"Lafayette County School District","title":"TORRENCE VS. LAFAYETTE COUNTY SCHOOL DISTRICT AWCC# H109984 December 16, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Torrence_Shauna_H109984_20241616.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Torrence_Shauna_H109984_20241616.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H109984  \n \nSHAUNA D. TORRENCE, \nEMPLOYEE \n \nCLAIMANT \nLAFAYETTE COUNTY SCHOOL DISTRICT,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASS’N \nWORKERS’ COMPENSATION TRUST, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED DECEMBER 16, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed July \n24, 2024.  The administrative law judge found that the claimant failed to \nprove she sustained a compensable injury.  After reviewing the entire \nrecord de novo, the Full Commission finds that the claimant did not prove \nshe sustained a compensable injury.     \nI.  HISTORY \n Shauna Dorice Torrence, now age 43, testified that she became \nemployed as a bus driver for the respondents in 2004.  Ms. Torrence \n\nTORRENCE - H109984  2\n  \n \n \ntestified that she later contracted to be a custodian for the respondent-\nemployer.  The claimant testified on direct examination: \nQ.  Before you got hurt, give us a picture of the typical day for \nyourself as you would manage the bus driving activities and \nthen take on your custodial responsibilities.  What was the \ntypical time for you to get there each day? \nA.  Each day it varied.  It’s depending on how many kids I had, \nso some days it would be 5:30, some days it would be 6:00 I \nwould get there.... \nQ.  So once you would get them picked up, what time would \nyou typically get them delivered to the school? \nA.  Around 8:00.... \nQ.  Would you start your custodial duties at that point? \nA.  Yes, sir, I would.   \nQ.  And at what point in the day would you stop your custodial \nduties and then take back on the responsibility of delivering \nthe children home? \nA.  Around 2:00, 2:15.   \nQ.  So once you would get the children delivered and you \nstarted your custodial duties, on a typical day, did you have a \ngeneral routine, typically, of how you would go through the \nday? \nA.  Yes, sir. \nQ.  Could you give us a picture of that? \nA.  Pulled up all of the trash out of the classrooms.  Sweeping \nthe classrooms.  Some classrooms needed to be mopped.  \nBathrooms.  Pulling the trash up in the bathrooms.  I went \nfrom one building to – I went from the main building to the \nkindergarten building, the same thing.  Pulling up trash, \nsweeping.  If they needed mopped, I mopped.  Pulling up \ntrash in the bathrooms, cleaning those bathrooms, until it was \ntime for my bus route.   \n \n The parties stipulated that the employment relationship existed at all \npertinent times, “including October 5, 2021, the date the claimant alleges \nshe became temporarily totally disabled due to alleged work-related bi-\n\nTORRENCE - H109984  3\n  \n \n \nlateral carpal tunnel syndrome (CTS), particularly CTS, most notably in her \nright wrist/hand.” \n The claimant testified on direct examination: \nQ.  And what time of day did the event that we’re talking about \non October 5\nth\n occur, do you recall? \nA.  I know it was before lunch.  I always go over there and \nclean the bathrooms before lunch, so I’m going to say around \nabout 9:00, maybe 9:30. \nQ.  And immediately before this happened, what area of the \ncampus were you on? \nA.  I was in the cafeteria in the foyer part... \nQ.  Tell us what happened. \nA.  As I was getting ready to enter out the door, I had the door \nopen with my left, and I was pushing the cart with my right \ntrying to get it over the – It’s a metal beam there but, also, it’s \na tile kind of missing in there, and my wheel got stuck in the \ntile as I’m trying to get it over the metal part in the doorway....I \nhad the cart pushing, you know, pushing out. \nQ.  All right.  So you were, in effect, using the cart to try and \npush the door open? \nA.  Yes.  I had my arm open with the left – Opened the door \nwith the left, and I had my right hand on the cart trying to push \nit through.... \nQ.  Describe for us how you fell.   \nA.  I had my hand, my right hand on the cart trying to hold on, \nbecause I didn’t want to, you know didn’t want – I seen what \nwas fixing to happen, but I didn’t want to fall hard, so I’m still \nhanging on, but I did hit the floor.... \nQ.  Did you think you needed medical attention at that time? \nA.  No, sir. \nQ.  Were you able to complete your day and go on and return \nthe children home on the bus? \nA.  Yes, sir.... \nQ.  Did you, at some point, decide to go see a doctor with \nregard to the problems that you were having? \nA.  Yes, sir. \nQ.  At that time, what doctor did you go see? \nA.  It was Dr. Saldino.   \nQ.  And that was for the foot? \n\nTORRENCE - H109984  4\n  \n \n \nA.  Yes, sir.   \n \n According to the record, the claimant treated at Texas Foot And \nAnkle Institute on or about October 12, 2021:  “40-year-old female has \ncomplaints of pain to her left dorsal foot.  She states it is from her toes to \nher ankle.  She has a history of diabetes but describes this is a \nhypoglycemia.  She works as a bus driver.”  Dr. Michael C. Saldino \ndiagnosed “Left degenerative midfoot changes are identified with posterior \ntibial tendinous pain....I recommend Custom Molded Orthotics.” \nThe claimant presented for treatment at Christus Health on October \n18, 2021.  The Reason for Visit was reported as “left foot problem, bilateral” \nand “swelling in hands.”   \nDr. Priyal Patel reported on October 18, 2021: \n Has been hurting for years.   \nHad xrays, was given three steroid shots in her feet, was \ngiven a mold for her shoe.  Her feet still hurt.  Does a lot of \nwalking and hurts when she is walking.   \nReports burning/stinging pain.  Hasn’t had [any] labwork in the \nlast year.... \nAbnormal BMI:  Diagnosis Obesity.  Goals and care plan \ndiscussed at this visit.  Discussed current nutrition and \nphysical activity behaviors. \n \n Dr. Patel wrote on October 18, 2021, “Due to patient’s medical \nconditions, she needs to be put on light duty where she isn’t walking long \ndistances and she has sufficient break to recover between job duties.”   \n\nTORRENCE - H109984  5\n  \n \n \nDr. Saldino continued to provide follow-up treatment for pain in the \nclaimant’s left lower extremity and noted on November 1, 2021, “Removed \nfrom work for an estimated 2 months.” \nRobert Edwards, Superintendent, Lafayette County School District, \nwrote the following on November 2, 2021: \n To Whom This May Concern, \nPlease accept this letter as evidence that there are no “light \nduty” options for Mrs. Torrence within the scope of her job \nduties as bus driver or custodian.   \nIn the event documentation is needed, please feel free to \ncontact me at your convenience.   \n \n The claimant followed up with Dr. Patel on November 30, 2021: \nShauna was seen today for wants (sic) to go over echo report \nand hands hurt bad right hand hurts worse, can’t hold \nanything with both of her hands and cannot even braid her \ndaughter’s hair.  Gabapentin is not helping the pain.  Also \ncomplains of dyspnea on minimal exertion.  Echo of the \npatient is normal.  Patient is wanting to see pulmonology.  \nReports that she used to clean and all the inhalation of the \nchemicals could have caused her lung issues.... \nAdvised patient to wear a wrist splint.  We will order her a \nnerve conduction study and start her on Lyrica for the pain.  \nWe will refer her to pulmonology for her shortness of breath \nand give her albuterol inhaler in the meantime.  We will start \nher on glimepiride for her diabetes and recheck back in 3 \nmonths.   \n \n Dr. Patel diagnosed “Type 2 diabetes mellitus without complication, \nwithout long-term current use of insulin (HC Category),” “Bilateral hand \nnumbness,” and “Dyspnea on minimal exertion.”   \nDr. Saldino reported on January 3, 2022: \n\nTORRENCE - H109984  6\n  \n \n \n[She] states that she is getting a neurological testing for her \nhands and feet as she is concerned that there may be a \ncarpal tunnel syndrome.  Both the feet and the hands are \npainful and are keeping her up at night.  She states her feet \nhave become so painful that she cannot do basic housework.  \nApparently there is some type of Worker’s Compensation \nclaim.  She indicates she is wearing the boot on a regular \nbasis.  As her pain has not improved.... \nHer clinical response has been very limited and not what I \nwould anticipate to date.  I am concerned that much of this \nmay be more of a neurological problem since it is occurring in \nher hands as well.  This may be related to her diabetes which \nshe says is well controlled.  For the time being we can \nmaintain the current treatment plan and had MRI imaging to \nsee if this changes the treatment plan at all.   \n \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on or about January 6, 2022.  The claimant appeared to write in \nthe ACCIDENT INFORMATION section of the Form AR-N that the Date of \nAccident was October 5, 2021, and that she injured her “left foot and right \nhand.”  The claimant described the cause of injury:  “trying to push the cart \nout of cafeteria door.\"   \n The claimant provided a recorded statement on January 7, 2022.  \nMelody Tipton with the Arkansas School Boards Association questioned the \nclaimant: \n  Q.  And you’re employed with what school district? \n  A.  Lafayette County School District. \n  Q.  Which campus or department do you work at? \n  A.  The lower elementary.... \n  Q.  What is your job title with the school district? \n  A.  I’m a bus driver and a custodian.... \nQ.  Alright, we’re going to talk about your incident now.  Do \nyou remember the date and the time?   \n\nTORRENCE - H109984  7\n  \n \n \nA.  The date was on the 5\nth\n, October the 5\nth\n. \nQ.  And what time? \nA.  Around between 9 to 9:30, I don’t remember.  I wasn’t \nlooking at the clock.  I don’t remember exactly what time it \nwas.  The only thing I can tell you, it was before lunch, \nbecause (inaudible).   \nQ.  Okay.  About what time had you started working that day? \nA.  At 5:30.   \nQ.  And where were you when this incident happened?  Be \nspecific, if you were in a hallway, tell me what hallway. \nA.  No I was in the foyer part over there in the cafeteria.   \nQ.  What were you doing at the time? \nA.  At the time, I was trying to get the car (sic) out of the, to \npush the cart out of the door.  I was leaving, I had finished \ncleaning up, and I had, had the door with my left one and I \nwas trying to push it with my right one, trying to get the door, \ntrying to get my cart out the door. \nQ.  And what happened? \nA.  It’s a metal part, between the two glass doors, and I was \ntrying to get it over there, trying to get the cart over that metal \npart.  And I don’t know what happened, only thing I can tell \nyou, I went to do that and that’s when I went down, and I had \nthe cart with my right one, trying to hold.  I didn’t want to fall \nand hurt myself.   \nQ.  So you said you fell? \nA.  No, I tried to keep from falling....my left feet (sic) gave out \non me. \nQ.  So the part of your body that was injured was your left \nfoot? \nA.  My left foot and my right hand.... \nGG:  Explain to us how you hurt your right hand.  What is you \nthink you did on your right hand? \nA. I was trying to keep myself....I had my right hand trying to \npush the buggy out.  I don’t know if I put a lot of weight, I don’t \nknow what I done, ma’am, but I was pushing the cart with my \nright hand.... \nGG:  So you were grabbing with your right hand to your cart to \nhold on to keep from falling? \nA.  Yes, to keep from hurting myself real bad.  That’s \nconcrete.  And I kept just, trying to keep myself from just \nfalling.   \n \n\nTORRENCE - H109984  8\n  \n \n \n The record contains a report from Wadley Regional Medical Center \nNeurophysiology Laboratory dated January 18, 2022: \nPatient c/o pain, numbness and tingling in her hands, right \nhand being worse.  Patient has PMH of diabetes.  No PMH of \nhypothyroidism or B12 deficiency.... \nBilateral median, ulnar and radial sensory nerve conduction \nstudies were normal.   \nBilateral ulnar digital sensory nerve conduction studies \nshowed no response.   \nRight medial digital sensory nerve conduction study showed \nprolonged latency. \nLeft median digital sensory nerve conduction study showed no \nresponse.   \nBilateral median and ulnar motor nerve conduction studies \nwere normal. \nBilateral median F-wave studies were normal.   \n \n Dr. Khalid Malik gave the following impression on January 18, 2022:  \n“Bilateral ulnar digital and median digital nerve lesions.”   \n Sara Moreno, CCMA, a representative of Christus Health, stated on \nJanuary 18, 2022: \nDue to patient’s medical conditions and since there is not \n“light duty” offered in scope of job duties.  She needs to be off \nof work due to not being able to walk long distances, and \nneeding to have sufficient breaks to recover between job \nduties.   \n \n An MRI of the claimant’s left foot was taken on January 20, 2022 \nwith the impression, “Mild degenerative changes and small adjacent \nganglion noted at the level of the third and fourth TMT joints.  Otherwise, \nthere is negative without posttraumatic pathology noted.”  \n Dr. John Camp examined the claimant on February 14, 2022: \n\nTORRENCE - H109984  9\n  \n \n \nThis is a 40-year-old right-hand dominant female who is a \npatient of Dr. Patel, as well as a Dr. Malik.  Ms. Torrence \nrelates she took a fall back sometime in October of this past \nyear onto her outstretched right hand.  She has had some \npain, swelling, numbness, and tingling dating back to that \nincident.  She has tried bracing both day and night and anti-\ninflammatories including some Lyrica and gabapentin for \nnerve type symptoms.  She also does use [an] asthma inhaler \nas necessary.   \nMs. Torrence did have a nerve study accomplished by Dr. \nMalik after being seen by her primary care provider, Dr. Patel.  \nThis did show evidence of a right-sided carpal tunnel \nsyndrome.... \nX-rays of her right wrist taken today are within normal \nparameters.  No significant arthrosis.  Carpal alignment is \nsatisfactory.   \n \n Dr. Camp assessed “Right carpal tunnel syndrome, significant.  Rule \nout cervical radiculopathy.  PLAN:  My recommendation is to consider a \nsurgical course for right carpal tunnel release when she is so inclined.”   \n Dr. Gregory Ardoin noted on March 28, 2022, “Shauna Torrence is a \n40 year old Female who presents to discuss concerns about their Foot/toe, \nthat began on 10/05/2021.  Patient has pain on the top of the foot primarily \non the left side.  She states she somehow slipped and caused a problem \nback in October 2021 she did not remember exactly what she did their foot \n(sic).”  Dr. Ardoin examined the claimant’s upper extremities and reported, \n“Full range of motion of shoulder elbow, wrist, and digits \nbilaterally....Impression:  Left foot pain and likely early midfoot arthritis.”  Dr. \nArdoin assessed “1.  Pain in left foot” and “2.  Body mass index 46+ - \nseverely obese.”      \n\nTORRENCE - H109984  10\n  \n \n \n Dr. Camp performed a procedure on April 7, 2022:  “Right carpal \ntunnel release.”  The pre- and post-operative diagnosis was “1.  Right \ncarpal tunnel syndrome, severe.  2.  Morbid obesity.”  The claimant testified \nwith regard to surgery performed by Dr. Camp, “It helped a little bit,” that \nsurgery relieved the numbness in her right hand.     \n The record indicates that the respondents terminated the claimant’s \nemployment contract effective April 30, 2022. \n Dr. Gregory Smolarz noted on January 10, 2023: \nThis is a 41 y.o. female who presents for left hand pain.  \nPatient reports that she has a history of a carpal tunnel \nrelease of her right hand after patient developed carpal tunnel \nsyndrome after a fall in which she landed on her right hand \nabout a year ago.  Patient says that she has been having left \nhand pain most recently with numbness and tingling that is \nsimilar to how her right hand (sic).  She mentions the left hand \npain and numbness started some time after her right hand.  \nHer right hand is no longer having numbness or tingling.  It \nstill has pain and swelling at times.  Patient says that her left \nhand has numbness and tingling that wakes her up at night at \ntimes.... \nThe Nerve Conduction Study of the bilateral hand was \nreviewed and the findings indicate bilateral ulnar and digital \nand median digital lesions.   \n \n Dr. Smolarz assessed “1.  Carpal tunnel syndrome of left wrist.  2.  \nCarpal tunnel syndrome of right wrist.”  Dr. Smolarz recommended \nconservative treatment.   \n Dr. Patrick O’Brien examined the claimant at UAMS on June 29, \n2023 and diagnosed the following:  “42 y.o. female with possible right hand \n\nTORRENCE - H109984  11\n  \n \n \ncomplex regional pain syndrome following carpal tunnel release by outside \nsurgeon, untreated left carpal tunnel syndrome.”  Dr. O’Brien planned \nadditional electrodiagnostic testing.   \n The claimant followed up at UAMS with Dr. John Bracey on August \n30, 2023: \nPatient is a 42-year-old who returns today for follow-up \nevaluation of her bilateral upper extremities.  She has a \nhistory of numbness and tingling in both upper extremities.  \nShe had previously undergone treatment for carpal tunnel \nsyndrome with a carpal tunnel release [in] 2021.  She again \nreports that that did not really help any of her symptoms.  She \ncontinues to have numbness in both hands which is worse in \nthe right side.  Involves all 5 fingers on the right and just the \nmiddle, index, and thumb of the left.  She also says she has \ntrouble with numbness and pain in the legs which is actually \nworse on the left side.  She complains of neck and back \npain.... \nNerve test:  Today we reviewed and personally interpreted the \nrecent nerve test done by Dr. Chesser.  On the motor nerve \nconduction study appears to be normal conduction of both the \nmedian and ulnar nerves bilaterally.  On sensory nerve \nconduction there is very mildly increased or prolonged distal \nlatency in the median nerves across the wrist.  The EMG is \nnormal.  Study is consistent with some very mild to minimal \ncarpal tunnel syndrome.... \nToday I had a long discussion with the patient.  We did review \nthe nerve test in detail together.  I explained that I do believe \nsome of her symptoms are likely secondary to some \nperipheral nerve compression at the carpal tunnel and cubital \ntunnel but this appears to be very mild.  I explained that I do \nnot think it would fully explain the type of pain that she is \nhaving.  I explained [it’s] possible she has a double crush \nphenomenon with additional irritation of the cervical spine \nlevel which could cause similar symptoms.  I recommend that \nshe be evaluated by one of our nonoperative partners for \nevaluation of her neck and they can also evaluate her back \n\nTORRENCE - H109984  12\n  \n \n \nwhich may be contributing to her lower back pain and lower \nextremity numbness.     \n \n Dr. Bracey’s impression was “Bilateral upper extremity numbness \nand pain.” \n The claimant’s attorney corresponded with a representative of the \nCommission on October 3, 2023: \nThis letter is to advise you that I have agreed to represent and \nassist Ms. Torrence as a result of bilateral carpal tunnel \ninjuries sustained on October 5, 2021, or in the alternative, as \na result of the rapid repetitive nature of her work with the \nLafayette County School District during the course of her \nemployment.  I am attaching the Form AR-C on her behalf.   \n \n The claimant signed a Form AR-C, CLAIM FOR COMPENSATION, \non October 3, 2023.  The ACCIDENT INFORMATION section of the Form \nAR-C indicated that the Date of Accident was October 5, 2021.  The cause \nof injury was “Carpal Tunnel Syndrome – Bilateral.”       \n A pre-hearing order was filed on December 11, 2023.  According to \nthe text of the pre-hearing order, the claimant contended, “The claimant \ncontends she sustained bilateral CTS injuries which culminated in disability \non or about October 5, 2021, or alternatively, as a result of her rapid, \nrepetitive work-related activities performed at the school district since 2004.  \nShe contends the applicable S/L does not barr (sic) her claim for CTS in her \nleft wrist/hand.  The claimant further contends she is entitled to TTD \nbenefits from on or about January 18, 2022, through on or about June 30, \n\nTORRENCE - H109984  13\n  \n \n \n2022, for treatment associated with her right wrist/hand.  Furthermore, the \nclaimant contends she is entitled to TTD benefits for treatment associated \nwith the left wrist/hand beginning on or about January 10, 2023, until she \nwas seen by Dr. Cassatt for evaluation on a date certain in 2023 (the \nclaimant has requested these related records).  The claimant contends the \nrespondents are responsible for payment of her medical treatment and \nrelated out-of-pocket expenses for her bilateral CTS, as such treatment is \nrelated to and reasonably necessary in light of the work-related bilateral \nCTS injuries.  The claimant contends she has sustained permanent \nanatomical impairment to both her left and right wrist/hand as a result of \nthese bilateral CTS injuries; however, she specifically reserves this issue \npending the Commission’s decision of the threshold compensability issue.  \nThe claimant reserves any and all other issues for future determination \nand/or litigation.”   \n The parties stipulated that the respondents “controvert this claim in \nits entirety.”  The respondents contended, “The respondents contend the \napplicable S/L barrs (sic) her CTS claim in her left wrist/hand.  Furthermore, \nthe respondents contend the claimant cannot meet her burden of proof \npursuant to the Act in demonstrating she sustained CTS in either her right \nwrist/hand and/or her left wrist/hand, which culminated in alleged disability \non or about October 5, 2021, or at any other time while she was working \n\nTORRENCE - H109984  14\n  \n \n \nwith the respondents.  Significantly, the respondents contend the claimant \ndid not provide them the statutorily required notice of any alleged right \nwrist/hand CTS injury until the the (sic) Form AR-C was filed on her behalf \non January 5, 2022.  In addition, the respondents contend the claimant also \nfailed and/or refused to provide them the legally required notice of any \nalleged left wrist/hand CTS injury until October 26, 2023, the date she filed \nher initial Response to Prehearing Questionnaire.  If the claimant’s \ninjury(ies) is (are) deemed compensable, the respondents contend the \nclaimant received both short and long-term disability (STD, and LTD, \nrespectively) benefits and, therefore, pursuant to Ark. Code Ann. Section \n11-9-411 (2023 Lexis Replacement), they are entitled to a dollar-for-dollar \noffset/credit.  Finally, the respondents contend the claimant’s need for \nmedical treatment, if any, is related to her diabetes mellitus and not any \nacute or gradual injury.  The respondents reserve the right to supplement \ntheir contentions and assert any and all other applicable defenses and \narguments upon the completion of necessary investigation and discovery.  \nThe respondents reserve any and all other issues for future determination \nand/or litigation.”   \n The parties agreed to litigate the following issues: \n1. Whether the claim for the claimant’s left wrist CTS is \nbarred by the applicable statute of limitations (S/L). \n2. Whether the claimant sustained compensable bilateral \nCTS injuries, particularly in her right wrist/hand, within the \n\nTORRENCE - H109984  15\n  \n \n \nmeaning of the Arkansas Workers’ Compensation Act (the \nAct) which allegedly culminated in disability on or about \nOctober 5, 2021. \n3. If the claimant’s alleged bilateral CTS is deemed \ncompensable, the extent to which she is entitled to medical \nand indemnity benefits, specifically TTD benefits from on \nor about January 18, 2022, through on or about June 30, \n2022, for treat (sic) related to her right wrist/hand; and \nfrom on or about January 10, 2023, until at least March 7, \n2023, with respect to her left wrist/hand.   \n4. Whether the claimant’s attorney is entitled to a \ncontroverted fee on these facts.   \n5. The parties specifically reserve any and all other issues for \nfuture determination and/or litigation.   \n \nA hearing was held on April 25, 2024.  At that time, the respondents \nwithdrew their statute of limitations defense.  The claimant testified on direct \nexamination: \nQ.  So we’re here today because you are alleging the \nsymptoms with regard to your hands, the right that you’ve had \nsurgery on and the left that you didn’t, you believe occurred as \na result of your work-related activities there at the school \ndistrict.  Why do you think the school should be responsible \nfor your hand problems? \nA.  Yes, sir.  The reason why I think is if it wasn’t from the fall, \nit was the day-to-day activity I had to do, the repetitive on my \njob.   \nQ.  When you say repetitive activities, what are you talking \nabout? \nA.  The sweeping, the mopping, the dusting, the everyday \nthings that I did, vacuuming.   \nQ.  What was the pace of the performance of those activities \nas you would do those from day to day and as you went from \nbathroom to bathroom and building to building? \nA.  I tried to do them as quickly as possible.   \nQ.  Had you had any problems with your hands before \nOctober 5\nth\n? \nA.  No, sir.   \n \n\nTORRENCE - H109984  16\n  \n \n \n An administrative law judge filed an opinion on July 24, 2024.  The \nadministrative law judge found that the statute of limitations did not bar the \nclaim.  The respondents do not appeal that finding.  The administrative law \njudge found that the claimant failed to prove she sustained a compensable \ninjury.  The administrative law judge therefore denied and dismissed the \nclaim.  The claimant appeals to the Full Commission. \nII.  ADJUDICATION \nA.  Compensability \nArk. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence; \n(ii)  An injury causing internal or external physical harm to the \nbody and arising out of and in the course of employment if it is \nnot caused by a specific incident or is not identifiable by time \nand place of occurrence, if the injury is: \n(a) Caused by rapid repetitive motion.  Carpal tunnel \nsyndrome is specifically categorized as a compensable \ninjury falling within this definition[.]... \n \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n\nTORRENCE - H109984  17\n  \n \n \nArk. Code Ann. §11-9-102(4)(Repl. 2012) further provides, in \npertinent part: \n(E)  BURDEN OF PROOF.  The burden of proof of a \ncompensable injury shall be on the employee and shall be as \nfollows: \n(i)  For injuries falling within the definition of compensable \ninjury under subdivision (4)(A)(i) of this section, the burden of \nproof shall be a preponderance of the evidence; or  \n(ii)  For injuries falling within the definition of compensable \ninjury under subdivision (4)(A)(ii) of this section, the burden of \nproof shall be by a preponderance of the evidence, and the \nresultant condition is compensable only if the alleged \ncompensable injury is the major cause of the disability or need \nfor treatment.   \n \n Preponderance of the evidence means the evidence having greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 \nArk. App. 269, 101 S.W.3d 252 (2003).  “Major cause” means “more than \nfifty percent (50%) of the cause,” and a finding of major cause shall be \nestablished according to the preponderance of the evidence.  Ark. Code \nAnn. §11-9-102(14)(Repl. 2012).      \n1.  Alleged Specific Incident \n An administrative law judge found in the present matter, “3.  The \nclaimant has failed to meet her burden of proof that she has sustained \neither a specific incident or a gradual onset compensable injury to either or \nboth her right or left wrist.”  It is the duty of the Full Commission conduct our \nown fact-finding independent of that done by an administrative law judge.  \nCrawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996).  The Full \n\nTORRENCE - H109984  18\n  \n \n \nCommission enters its own findings in accordance with the preponderance \nof the evidence.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 \nS.W.2d 348 (1990).   \n In the present matter, the Full Commission finds that the claimant did \nnot prove she sustained a compensable injury to her left upper extremity or \nright upper extremity in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(i)(Repl. 2012).  The claimant testified that she became employed \nwith the respondents, Lafayette County School District, in 2004.  The \nclaimant testified that she worked for the respondents as a bus driver and \ncustodian.  The parties stipulated that the employment relationship existed \non October 5, 2021.  The claimant testified that she was pushing a cart that \nday in the respondent-employer’s cafeteria.  The claimant testified that, \nwhile attempting to push the cart through a door, she fell and injured her \nright hand. \n The Commission may accept only those portions of the testimony \nthat it determines are worthy of belief.  Tucker v. Roberts-McNutt, Inc., 342 \nArk. 511, 29 S.W.3d 706 (2000).  Based on the record in the present \nmatter, the Full Commission finds that the claimant was not a credible \nwitness.  The evidence of record does not corroborate the claimant’s \ntestimony that she injured either her right hand or left hand on October 5, \n2021.  The claimant first sought medical treatment on October 12, 2021.  \n\nTORRENCE - H109984  19\n  \n \n \nThe claimant reported pain in her left dorsal foot but did not inform the \nmedical provider that she had injured her right hand or left hand.  The \nclaimant treated at Christus Health on October 18, 2021.  The claimant \nreported swelling in her hands but did not report an accidental injury \ncausing physical harm to the her right or left hand.  Dr. Patel diagnosed \n“Obesity” at that time but did not report a work-related injury allegedly \noccurring on October 5, 2021.  Dr. Patel instead noted that the claimant \n“Has been hurting for years.”     \n Dr. Saldino first noted a possible diagnosis of carpal tunnel \nsyndrome on January 3, 2022.  Dr. Saldino did not causally relate this \ndiagnosis to an accidental injury allegedly occurring on October 5, 2021.  \nThe evidence of record does not corroborate the claimant’s assertion on the \nJanuary 6, 2022 Form AR-N that she injured her right hand while “trying to \npush the cart out of cafeteria door.”  Nor does the evidence corroborate the \nclaimant’s recorded statement given on January 7, 2022 that she injured \nher right hand while “pushing a cart.”  The claimant informed Dr. Camp on \nFebruary 14, 2022 that she had fallen “onto her outstretched right hand” in \nOctober 2021.  Dr. Camp assessed “Right carpal tunnel syndrome, \nsignificant” and subsequently performed a right carpal tunnel release.  \nNevertheless, the Commission is entitled to review the basis for a doctor’s \nopinion in deciding the weight and credibility of the opinion and medical \n\nTORRENCE - H109984  20\n  \n \n \nevidence.  Swift-Eckrich, Inc. v. Brock, 63 Ark. App. 118, 975 S.W.2d 857 \n(1998).  In the present matter, there is no probative evidence demonstrating \nthat Dr. Camp’s assessment of “Right carpal tunnel syndrome” was causally \nrelated to an accidental injury allegedly occurring on October 5, 2021.   \n The Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that she sustained a “compensable injury” \nin accordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012).  The \nclaimant did not prove that she sustained an accidental injury causing \ninternal or external physical harm to the right hand or left hand.  The \nclaimant did not prove that she sustained an injury which arose out of and \nin the course of employment, required medical services, or resulted in \ndisability.  The claimant did not prove that she sustained an injury which \nwas caused by a specific incident or was identifiable by time and place of \noccurrence on or about October 5, 2021.  We therefore affirm the \nadministrative law judge’s finding that the claimant failed to prove she \nsustained a compensable injury. \n2.  Alleged Gradual Onset     \nAn administrative law judge found, “3.  The claimant has failed to \nmeet her burden of proof that she has sustained either a specific incident or \na gradual onset compensable injury to either or both her right or left wrist.”  \nThe Full Commission affirms this finding.  Carpal tunnel syndrome is \n\nTORRENCE - H109984  21\n  \n \n \nspecifically categorized as a compensable injury falling within the definition \nof rapid repetitive motion.  Ark. Code Ann. §11-9-102(4)(A)(ii)(a)(Repl. \n2012).  Therefore, the claimant is not required to prove that her bilateral \ncarpal tunnel condition was caused by rapid repetitive motion.  See Kildow \nv. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).  The \nclaimant is, however, required to prove by a preponderance of the evidence \nthat the bilateral carpal tunnel condition arose out of and in the course of \nemployment, and that the alleged compensable injury was the major cause \nof the disability or need for treatment.  Ark. Code Ann. §11-9-\n102(4)(A)(ii)(Repl. 2012); Ark. Code Ann. §11-9-102(4)(E)(ii)(Repl. 2012).  \nIn the present matter, the claimant did not prove that the diagnosed \ncondition of bilateral carpal tunnel syndrome arose out of and in the course \nof the claimant’s employment with the respondents.  The evidence does not \ndemonstrate that the claimant sustained bilateral carpal tunnel syndrome as \na result of her custodial duties with the respondents.  The record does not \nshow that the duties described by the claimant, which including cleaning, \nsweeping, and mopping, caused bilateral carpal tunnel syndrome.  Nor \ndoes the evidence demonstrate that the alleged compensable injury was \nthe major cause of the claimant’s disability or need for treatment.  Dr. Patel \nreported in October 2021 that the claimant had been “hurting for years,” but \nDr. Patel diagnosed “Obesity” rather than an alleged compensable gradual \n\nTORRENCE - H109984  22\n  \n \n \ninjury causing harm to the claimant’s hands.  Dr. Patel noted in November \n2021 that the claimant was experiencing “bilateral hand numbness,” but he \ndiagnosed “Type 2 diabetes mellitus” rather than a compensable injury.  In \naddition, Dr. Ardoin’s assessment in March 2022 included “2.  Body mass \nindex 46+ - severely obese.”   \nThe Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that she sustained a “compensable injury” \nin accordance with Ark. Code Ann. §11-9-102(4)(A)(ii)(Repl. 2012).  The \nclaimant did not prove that she sustained an injury causing internal or \nexternal physical harm to the body which arose out of and in the course of \nemployment.  Nor did the claimant prove that the alleged compensable \ninjury was the major cause of the disability or need for treatment.         \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that she \nsustained a compensable injury in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(i)(Repl. 2012).  The claimant did not prove by a preponderance of \nthe evidence that she sustained a compensable injury in accordance with \nArk. Code Ann. §11-9-102(4)(A)(ii)(Repl. 2012).  We therefore affirm the \nadministrative law judge’s finding that the claimant failed to prove she \nsustained a compensable injury, and this claim is respectfully denied and \ndismissed.   \n\nTORRENCE - H109984  23\n  \n \n \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n  The Administrative Law Judge (hereinafter referred to as “ALJ”) \nfound that the Claimant failed to prove she sustained a compensable carpal \ntunnel injury.  After conducting a thorough review of the record, I disagree.  \nI would rule in favor of the Claimant as she has proved by a preponderance \nof the evidence that she sustained a compensable carpal tunnel injury to \nboth of her wrists and is entitled to reasonable and necessary medical \ntreatment for her compensable wrist injuries and temporary total disability \nfrom January 18, 2022, until May 20, 2022. \nA. Claimant sustained a compensable carpal tunnel injury to both of \nher wrists.  \n \nTo establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \n\nTORRENCE - H109984  24\n  \n \n \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence. \nAlternatively, a compensable injury can develop over a period of time or \nresult from rapid repetitive motion.  Ark. Code Ann. § 11-9-102(4)(A)(ii)(a).  \nCarpal tunnel syndrome is specifically categorized as a compensable injury \nfalling within this definition.  Id.  Proof of rapid and repetitive motion by a \nClaimant is not required as carpal tunnel syndrome is both compensable \nand falls within the definition of rapid repetitive movement.  Kildow v. \nBaldwin Piano & Organ, 333 Ark. 35, 969 S.W.2d 190 (1998).  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty. Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002).  Further, an injury resulting from \nsomething other than a specific incident must be shown to be the major \ncause of the disability or need for treatment.  Ark. Code Ann. § 11-9-\n102(4)(E)(ii).  Although objective medical findings are required to establish \nthe existence and extent of an injury, objective medical findings are not \nrequired to establish causation. Springfield Grocer Co. v. Chaulsett, 2023 \nArk. App. 53, 659 S.W.3d 731 (2023).  Causation often comes down to a \n\nTORRENCE - H109984  25\n  \n \n \ndecision on the credibility of the Claimant; medical evidence on causation is \nnot required in every case.  Id.  \n The Claimant began working as a bus driver for the Respondent in \n2004, and later took on additional contract duties as a custodian.  According \nto her testimony, Claimant cleaned approximately twenty classrooms a day.  \nHer duties included wiping down the desks and sweeping and mopping the \nfloor of each of her assigned classrooms.  Further, Claimant cleaned \napproximately fifteen bathrooms a day which included wiping down the \nbathroom and sweeping and mopping the floors.  On October 5, 2021, \nClaimant tripped and fell while working for the Respondent when she was \npushing her janitorial cart into the school.  Claimant landed on her right arm \nand left leg. Claimant was initially seen by Dr. Priyal Patel who diagnosed \nClaimant with a left foot problem and bilateral swelling in her hands.  On \nNovember 30, 2021, Dr. Patel ordered a nerve conduction study for \nClaimant’s hands.  The nerve conduction study was performed on January \n18, 2022 and showed bilateral ulnar digital and median digital nerve lesions. \nFrom these results, Claimant was diagnosed with right-sided carpal tunnel \nsyndrome by Dr. John Camp on February 14, 2022.  Dr. Camp \nrecommended a right carpal tunnel release surgery for Claimant which was \nperformed on April 7, 2022. On January 10, 2023, the Claimant was also \n\nTORRENCE - H109984  26\n  \n \n \ndiagnosed with carpal tunnel syndrome of the left wrist for which \nconservative treatment was recommended.  \n Claimant was employed with the Respondent for approximately \nseventeen years, and worked in a capacity where she regularly used her \nupper extremities during the majority of her job duties.  The credible \nevidence suggests that she was physically able to perform those duties \nwithout significant difficulties until the work accident on October 5, 2021.  \nFollowing this work accident the Claimant began to experience swelling and \npain in both of her hands, with more symptoms in the right hand.  The \nrecord contains no reasonable explanation for these symptoms other than \nthe Claimant’s work duties and the October 5, 2021 work incident.  \nCarpal  tunnel  syndrome  is  specifically  defined  as  a  compensable \ninjury, regardless of whether it was caused by specific injury or gradually over \ntime.  In this situation, I find that the work accident of October 5, 2021 may \nhave played some part in the process, but that the Claimant’s duties of \nconstantly using her arms and hands at work over seventeen years resulted \nin the development of carpal tunnel in both of her wrists.  Further, I find that \nClaimant’s employment duties were the major cause of her disability  and \nneed for medical treatment.  Therefore, based upon the credible evidence in \nthe  record  I  would  rule  that  the  Claimant  sustained  compensable  gradual \nonset injuries to both of her wrists.  \n\nTORRENCE - H109984  27\n  \n \n \nB. Claimant   is   entitled   to   additional   medical   treatment   for   her \ncompensable wrist injuries.  \n \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.   Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).   What constitutes reasonable and necessary medical \ntreatment is a question of fact for the Commission.  White Consolidated \nIndus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  \nIn the present case, the Claimant has a compensable injury to both \nof her wrists in the form of carpal tunnel syndrome.  I find this treatment is \nreasonable and necessary for the Claimant’s compensable right wrist injury.  \nClaimant has had her right wrist treated in the form of carpal tunnel release \nsurgery.  Claimant’s physician, Dr. Gregory Smolarz, diagnosed the \nClaimant with left-sided carpal tunnel syndrome and recommended \nconservative treatment.  \nI  further  find  that  the  Claimant  is  entitled  to  treatment  for  her \ncompensable left-wrist carpal tunnel syndrome and that this recommended \ntreatment is reasonably necessary in connection with the injury received by \nthe Claimant.  \n\nTORRENCE - H109984  28\n  \n \n \nC. Claimant is entitled to temporary total disability from January 18, \n2022, until May 20, 2022.  \n \nTemporary   total   disability   benefits   are   appropriate   where   the \nemployee  remains  in  the  healing  period  and  is  totally  incapacitated  from \nearning wages.  Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981).  \nOn  October  18,  2021,  Dr.  Patel  placed  Claimant  on  light-duty  work \nrestrictions.  The note mentions the need to avoid walking long distances and \ncould have a connection to the Claimant’s left foot complaints.  Following this, \nSuperintendent  Robert  Edwards  of  the  Lafayette  County  School  District \nwrote a letter stating that there “are no ‘light duty’ options for Mrs. Torrence \nwithin the scope of her job duties as bus driver or custodian.” On January 18, \n2022, an EMG test was conducted which demonstrated abnormalities in both \nof the Claimant’s wrists.  On this same day, Claimant’s off work status was \nreiterated by Sara Moreno, CCMA due to the Claimant’s “medical conditions” \nand   because   light   duty   was   not   available   to   the   Claimant   with   the \nRespondents.  Claimant  then  underwent  a  right  carpal  tunnel  release \nperformed  by  Dr.  Camp  on  April  7,  2022.  Dr.  Camp  released  Claimant  to \nreturn to normal use of her right hand on May 20, 2022.  \nBased upon the credible evidence in the record, I would rule that the \nClaimant  is  entitled  to  temporary  total  disability  benefits  from  January  18, \n2022, until May 20, 2022.  \n\nTORRENCE - H109984  29\n  \n \n \nD. The claim for benefits for the injury to Claimant’s left wrist is not \nbound by the statute of limitations.  \n \nThe Respondent’s argue that they lacked appropriate notice in \naccordance with Ark. Code Ann. § 11-9-701 and that the claim is barred by \nthe statute of limitations under Ark. Code Ann. § 11-9-702.  However, both \nof these arguments lack merit.  Claimant was injured on October 5, 2021.  \nThe Claimant testified that she informed her supervisor, Mr. Crank, and Mr. \nCranks’ secretary, Ms. Roxanne, immediately after the work incident. \nClaimant then filed an AR-C on October 21, 2021, informing the \nRespondent that the injury occurred on October 5, 2021.  The Claimant also \ntestified that she provided her employer with a copy of her work restrictions.  \nAfter discovering the full extent of the Claimant’s injuries in 2023, the \nClaimant then re-filed another AR-C amending the previous AR-C in the \ntwo-year period required by Ark. Code Ann. § 11-9-702.  Therefore, I find \nthat the Claimant is not barred by the statute of limitations, or alleged lack \nof notice in seeking Arkansas Workers' Compensation Commission benefits \nfor the work incident that occurred on October 5, 2021.  \nFor the reasons stated above, I respectfully dissent. \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":46462,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H109984 SHAUNA D. TORRENCE, EMPLOYEE CLAIMANT LAFAYETTE COUNTY SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASS’N WORKERS’ COMPENSATION TRUST, INSURANCE CARRIER/TPA RESPONDENT","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back","carpal tunnel","wrist","ankle","cervical","shoulder","neck","repetitive"],"fetchedAt":"2026-05-19T22:29:44.778Z"},{"id":"alj-H307524-2024-12-31","awccNumber":"H307524","decisionDate":"2024-12-31","decisionYear":2024,"opinionType":"alj","claimantName":"Kanekalon Bishop","employerName":"Ark. Dept. Of Correction","title":"BISHOP VS. ARK. DEPT. OF CORRECTION AWCC# H307524 December 31, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BISHOP_KANEKALON_H307524_20241231.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BISHOP_KANEKALON_H307524_20241231.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H307524 \n \nKANEKALON BISHOP, EMPLOYEE       CLAIMANT \n \nARK. DEPT. OF CORRECTION, EMPLOYER         RESPONDENT \n     \nPUBLIC EMPLOYEE CLAIMS DIVISION, TPA         RESPONDENT \n \n \n \nOPINION FILED 31 DECEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 3 October 2024 in Pine Bluff, Arkansas. \n \nCaldwell Law Firm, Mr. Andy Caldwell, appeared for the claimant. \n \nArkansas Insurance Department, Public Employee Claims Division, Mr. Charles \nMcLemore, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 3 October 2024 in Pine Bluff, Arkansas, \nafter the parties participated in a prehearing telephone conference on 25 June 2024. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on 27 June 2024.  \nThat Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/TPA relationship existed at all relevant times. \n \n3.  The claimant’s average weekly wage at the time relevant to this claim was $512    \nper week, which would entitle her to Temporary Total Disability (TTD) benefits in \nthe amount of $341 per week and Permanent Partial Disability (PPD) benefits in \nthe amount of $256 per week.\n1\n \n \n \n1\n The Order stated that the parties would stipulate to the average weekly wage amount at \nthe hearing. That amount was agreed upon and read into the record at the beginning of the \nhearing. See TR at 9-10. \n\nK. BISHOP- H307524 \n2 \n \nThe Order also stated the following ISSUES TO BE LITIGATED: \n1. Whether the claimant is entitled to PPD benefits associated with her accepted \ncompensable workplace injury. \n \n2. Whether the claimant is entitled to the cost of an impairment evaluation \nperformed by Functional Testing Centers.\n2\n \n \n3. Whether the claimant is entitled to benefits under ACA § 11-9-505 related to the \ntime between her return-to-work authorization on 23 April 2024 and the \nreinstatement of her employment on 13 May 2024. \n \n4. Whether the claimant is entitled to an attorney’s fee. \nAll other ISSUES are reserved. \nThe parties’ CONTENTIONS, as set forth in their pre-hearing questionnaire \nresponses, were incorporated into the Prehearing Order. Those filings were admitted into \nthe record as Claimant’s Exhibit No 4 and Respondents’ Exhibit No 4, respectively. With \nrespect to the additional ISSUE of whether the claimant is entitled to the cost of the \nimpairment evaluation performed by Functional Testing Centers (FTC), the claimant \ncontends that the evaluation was reasonable and necessary. The respondents, on the other \nhand, contend that the evaluation was not reasonable or necessary in light of an earlier \nimpairment rating assigned by the claimant’s physician. They further contend that the \nevaluation was not authorized.\n3\n \n The claimant was the only WITNESS to testify at the hearing. \nThe EVIDENCE considered  in this claim consisted of the hearing testimony along with \nthe following EXHIBITS: Commission’s Exhibit No 1 (the Prehearing Order), Claimant’s \nExhibit No 1 (one index page and 81 pages of medical records), Claimant’s Exhibit No 2 (one \nindex page and six pages of non-medical records), Claimant's Exhibit No 3 (an invoice from \n \n2\n This issue was not listed in the Order, but it was added by the claimant without objection. \nThe evaluation was performed after the entry of the Prehearing Order. \n3\n See TR at 13-14. \n\nK. BISHOP- H307524 \n3 \n \nFunctional Testing Centers for an impairment rating evaluation), Claimant’s Exhibit No 4 \n(the claimant’s prehearing filing, which includes a notation from the claimant’s counsel on \nseeking the cost of an impairment evaluation from Functional Testing Centers), and \nClaimant’s Exhibit No 5 (various claim forms dated 24 September 2024); Respondents’ \nExhibit No 1 (a letter from the respondents’ counsel), Respondents’ Exhibit No 2 (one index \npage and 16 pages of non-medical records), Respondents’ Exhibit No 3 (one index page and \n52 pages of medical records), and Respondents’ Exhibit No 4 (the respondents’ prehearing \nfiling). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole and having heard testimony from the \nwitness, observing her demeanor, I make the following findings of fact and conclusions of \nlaw under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously-noted stipulations are accepted as fact. \n \n3. The respondents’ motions to introduce new evidence are denied. \n \n3. The claimant has met her burden on proving that she is entitled to PPD \nbenefits consistent with a one percent (1%) impairment rating to the whole \nbody. \n \n4.   The claimant has met her burden on proving that the impairment evaluation \nwas reasonably necessary treatment for which the respondents are \nresponsible for the cost. \n \n5. The claimant is entitled to an attorney’s fee on the indemnity benefits \nawarded herein. \n \nIII.  HEARING TESTIMONY  \nClaimant Ms. Kanekalon Bishop \n The claimant testified that at the time of her 9 November 2023 injury she was \nworking as an administrative assistant for facility maintenance at the Arkansas \n\nK. BISHOP- H307524 \n4 \n \nDepartment of Correction’s Maximum Security Unit in Tucker, Arkansas. She was injured \nwhen a remotely operated security gate slid closed and caught her arm (between her wrist \nand elbow) while she was passing something through the gate to another employee. Her \ninjury was accepted as compensable and benefits, including medical treatment and TTD \npayments, were provided. \n The claimant initially treated at a MedExpress clinic before being referred to \nOrthoArkansas, where she was seen by Dr. Michael Hussey, who then referred her to Dr. \nBrian Norton. While under the care of Dr. Norton, the claimant remained off work. On 13 \nMarch 2024, Dr. Norton performed surgery on the claimant’s right wrist. \n In January of 2024, the respondents terminated the claimant’s employment; but \nthey continued to provide benefits, including TTD payments and medical treatment, after \nher termination. The claimant testified that the reason for her termination was unclear, as \nshe remained in contact with the respondents while off work and undergoing authorized \ncare.  \n Dr. Norton released the claimant to return to work without restrictions on 23 April \n2024. She sought reinstatement with the respondents upon her release, but the \nrespondents did not return her to work until 13 May 2024. She did not have any other \nemployment or income in the time between her release to work and her reinstatement.  \n On 29 May 2024, the claimant followed up with Dr. Norton again; and he placed her \nat maximum medical improvement (MMI) without restrictions. Dr. Norton subsequently \nauthored a letter assigning the claimant a zero percent impairment rating. \n After the claimant received the zero percent impairment rating from Dr. Norton, she \npresented for an evaluation with FTC. She testified that they performed testing, including \nmeasuring her range of motion, that Dr. Norton did not do with her. FTC assigned the \nclaimant a one percent (1%) impairment rating. The rating has not been accepted or paid by \n\nK. BISHOP- H307524 \n5 \n \nthe respondents, as that issue is part of this litigation. Similarly, the cost of the evaluation \nwith FTC has not been paid by the respondents. \n The claimant testified that the respondents did not provide her a form AR-N at or \naround the time of her injury. She stated that she was eventually provided that form, along \nwith some other forms, on 24 September 2024. The claimant also testified that she \ncontinued to experience some trouble with her right arm and that her treatment with Dr. \nNorton was continuing for further evaluation of her complaints, including an EMG study \nthat was authorized and ordered but had not been conducted at the time of the hearing. \n On her cross examination, the claimant described having to reapply, interview, and \ncomplete paperwork for her reinstatement. The parties agreed that her eventual return to \nwork was on Monday, 13 May 2024. Since returning to work, she has been reassigned to \ndifferent areas, but has been doing essentially the same work as before her injury and for \nthe same pay. \n The claimant disagreed with the respondent counsel’s suggestion that she was \nreinstated on 3 May 2024. He cited an internal email from that day discussing her \nreinstatement [Resp. Ex. No 2 at 6]; but the claimant testified that she did not receive a call \ntelling her that she was to return to work until the Thursday before her first day back on \nMonday, May 13\nth\n.  \nMedical and Documentary Evidence \n The claimant first presented to a MedExpress clinic on the day of her 9 November \n2024 injury. She was assessed for pain and a contusion of her right arm and taken off work. \nShe followed up with MedExpress on 15 November 2023 and was referred for imaging and \nan orthopedic consult. \n At OrthoArkansas, the claimant first saw Dr. Michael Hussey, who referred her to \n“Dr. Norton a wrist specialist for further evaluation.” [Cl. Ex. No 1 at 26.] Dr. Norton \n\nK. BISHOP- H307524 \n6 \n \ninitially suspected intersection syndrome and ordered injection therapy. An EMG study on \n30 January 2024 revealed right side carpal tunnel syndrome and cubital tunnel syndrome. \nAt her next appointment with Dr. Norton, they discussed her options and planned for \nsurgery \n On 13 March 2024, Dr. Norton performed surgery for right carpel tunnel syndrome, \nright radial tunnel syndrome, and right intersection syndrome. The procedure was \ncompleted without complications. When the claimant followed up in clinic two weeks later, \nDr. Norton noted that she was recovering well. He then referred her for occupational \ntherapy. \n Dr. Norton saw the claimant again on 23 April 2024. His note from that day states, \nin part: \nHPI: ... She is doing well other than some occasional pain and flareups. \nOverall she is improving. \n \nExamination- Right Wrist: The wound has healed without evidence of \ninfection. There is no significant swelling, inflammation, erythema, or edema. \n \nExamination- Right Hand: The wound has healed without evidence of \ninfection. There is no significant swelling, inflammation, erythema, or edema. \nThere is full motion in the fingers. Sensory exam is intact to light touch. \nThere is no hyperesthesia or hypoesthesia along the palm of the hand. \n \nPlan: Overall patient is improving. She does [have] some occasional pain and \nflareups with regards to the wrist and hand. At this point I will allow her to \nreturn to work without restrictions. She will continue with therapy in the \nform of range of motion and strengthening. She will come back to see me in 6 \nweeks. \n \n[Cl. Ex. No 1 at 63.] \n The claimant saw Dr. Norton again on 29 May 2024. The notes from that visit \nincluded, “Plan: Overall patient is doing well. She was released from therapy. At this point \nI believe she can return to work without restrictions. I will also place her at MMI. She will \ncome back to see me as needed.” [Id. at 67.] \n\nK. BISHOP- H307524 \n7 \n \n On 1 July 2024, Dr. Norton authored a letter stating that, “following the surgery the \npatient completed a course of therapy. She did well during her therapy and has gotten \nprogressively better.” He assigned a zero percent (0%) impairment rating based on the AMA \nGuides to the Evaluation of Permanent Impairment, Fourth Edition. [Id. at 68.] \n The claimant later presented to FTC for evaluation. The summary of that evaluation \nis dated 16 August 2024, and it includes various graphs, illustrations, measurement ranges, \nand measured results. FTC assigned a one percent (1%) impairment rating to the right \nupper extremity for radial deviation, which relates to a one percent (1%) impairment of the \nwhole person according to the AMA Guides to the Evaluation of Permanent Impairment, \nFourth Edition. [Id. at 69-74.] \n The claimant followed up with Dr. Norton again on 21 August 2024 for complaints of \nsome numbness, tingling, and cramping in her right hand. He recommended a repeat EMG \nstudy and returned her to normal work without restrictions. That EMG study was \nauthorized and scheduled to be performed after the date of the hearing. \n The respondents provided the claimant with a Form AR-N on 24 September 2024, \nindicating that the employer was notified of her accident on 9 November 2023. Also on 24 \nSeptember 2024, the claimant received Public Employee Claims Division Forms PECD 1, \nEmployee’s Report of Injury, and PECD 2, Worker’s Comp Information Sheet. [Cl. Ex. No. 5.] \nThe PECD 2 Form indicates that her disability began on 9 November 2023 and that her \nreturn to work was on 13 May 2024. \n A number of letters and emails were entered into evidence by both parties. The \nrespondents argued through counsel that the claimant was possibly “reinstated” as early as \n3 May 2024. [Resp. Ex. No 2 at 6.] That day, however, she received an email with the \nsubject line “Interview” that stated: \n\nK. BISHOP- H307524 \n8 \n \nI received your application for an Administrative Specialist I. Your interview \nwill be May 6, 2024, at 9AM, at the Maximum-Security Unit, 2501 State \nFarm Road, Tucker, Arkansas 72168. The attire for the interview is \nBUSINESS CASUAL (NO JEANS, HOODIES, HATS, SLIDES OR TENNIS \nSHOES). If for any reason you are unable to attend the interview... \n \nThe following documents are REQUIRED for the interview process: \nSocial Security Card \nSocial Security Numbers if you have children living in your home (jot them \ndown) \nDriver’s License \nHigh School Diploma, Transcript, GED or College Degree \n \n[Id. at 7 (emphasis in original).] \n An internal email exchange from 10 May 2024 includes, “This packet has been \napproved. Please provide a start date and supervisors name and position number.” A start \ndate of 13 May 2024 was then provided in a reply. [Id. at 8.] \n The claimant introduced an email exchange that began on 25 April 2024, with the \nrespondents notifying the claimant’s counsel of her release to return to work without \nrestrictions. [Cl. Ex. No 2.] The following day, her counsel responded, in part: \nMy understanding is that Ms. Bishop was terminated by the Respondent \nEmployer while she was off for her injuries. Now that she has been released \nto return to work, please accept this correspondence as the Claimant’s formal \ndemand that [her] employment with Respondents be reinstated immediately. \n \n...  \n \n...she should be reinstated with the same position, pay, seniority, and \nprogress regarding her probationary period as if her employment had never \nbeen terminated in the first place. \n \n... \n \nIt should be noted that her reinstatement should be done without causing her \nany prejudice as a result of her termination which was the result of a work-\nrelated injury. \n \n[Id. at 5.] After the respondents suggested that she apply for any of six open positions, \ncounsel responded, “She should not have to apply. She needs to be reinstated as per my \ncorrespondence.” [Id. at 4.] After some back-and-forth, the respondents explained on 29 \n\nK. BISHOP- H307524 \n9 \n \nApril 2024 that, “There is no guarantee to get a position due to background check and drug \nscreening. If she gets the position, she will not have to go through new employee training is \nmy understanding.” [Id. at 3.] \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted. It is settled that the \nCommission, with the benefit of being in the presence of witnesses and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). \nA claimant's testimony is never considered uncontroverted. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility and how \nmuch weight to accord to that person's testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The Commission must \nsort through conflicting evidence and determine the true facts. Id. In so doing, the \nCommission is not required to believe the testimony of the claimant or any other witness, \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief. Id. \nAn evidentiary matter must be addressed as an initial matter. After the evidence in \nthis claim was closed and the case was submitted, the respondents submitted two Motions \nto Introduce Newly Discovered Evidence. The first was submitted on 25 October 2024, and \nthe second was submitted on 12 December 2024. Notes from an EMG study, clinic visits, \nand physician orders, all occurring after the date of the hearing, were attached to the \nmotions. The claimant objected to the introduction of the evidence as not relevant to the \nissues at bar. The claimant also objected on the basis that the scheduling of at least some of \nthe appointments, specifically an EMG study, was known to the respondents ahead of the \n\nK. BISHOP- H307524 \n10 \n \nhearing and the respondents declined to seek a continuance based on the yet-to-be available \nreports and records.  \nThe Commission is not bound by the technical rules of procedure or evidence; but it \nshould conduct proceedings in a way that best ascertains the rights of the parties. A.C.A. § \n11-9-705(a)(1). To that end, it has been made clear that the Commission has “a great deal of \nlatitude in evidentiary matters.” Bryant v. Staffmark, Inc., 76 Ark. App. 64, 61 S.W.3d 856 \n(2001). Our courts have held that evidence may be belatedly presented when (1) the newly \ndiscovered evidence is relevant; (2) the evidence is not cumulative; (3) the evidence would \nimpact the result of the inquiry; and (4) the movant is diligent in presenting the evidence. \nHaygood v. Belcher, 5 Ark. App. 127, 633 S.W.2d 391 (1982). \nThe records at issue were clearly not offered in compliance with A.C.A. § 11-9-\n705(c)(1)(A), which requires submission of evidence prior to the date of a hearing, because \nthey were not available prior to the hearing. But no continuance was requested based on \ntheir anticipated relevance or probative value.  \nThese treatment records may relate to other issues reserved for potential litigation, \nbut I do not find the records to be relevant to the matters at hand. Based on this finding, I \nam accepting the papers strictly as a proffer. They are being blue-backed with this opinion, \nbut are not admitted as evidence on this record.  \nA. The Claimant Proved by a Preponderance of the Evidence That She is \nEntitled to Permanent Partial Disability Benefits. \n \nPermanent impairment is any permanent functional or anatomical loss remaining \nafter the healing period has been reached. Johnson v. General Dynamics, 46 Ark. App. 188, \n878 S.W.2d 411 (1994). Any determination of the existence or extent of physical \nimpairment shall be supported by objective and measurable physical findings. Ark. Code \nAnn. § 11-9-9704(c)(1). Objective findings are those findings which cannot come under the \n\nK. BISHOP- H307524 \n11 \n \nvoluntary control of the patient. Ark. Code Ann. § 11-9102(16)(A)(i). Although it is true that \nthe legislature has required medical evidence to establish a compensable injury, it does not \nfollow that such evidence is required to establish each and every element of \ncompensability. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). \nMedical opinions addressing impairment must be stated within a reasonable degree of \nmedical certainty. Ark. Code Ann. § 11-9102(16)(B). Permanent benefits shall be awarded \nonly upon a determination that the compensable injury was the major cause of the \ndisability or impairment. Ark. Code Ann. § 11-9-102(f)(ii)(a). \"Major cause\" means more \nthan fifty percent (50%) of the cause. Ark. Code Ann. § 11-9-102(14). \nThe record contains competing assessments of whether the claimant is permanently \nimpaired because of her compensable injury. Dr. Norton provided an assessment of a zero \npercent (0%) impairment rating, while Casey Garretson, OTD, of Functional Testing \nCenters, Inc., assessed a one percent (1%) impairment rating. \nThe claimant first came under Dr. Norton’s care in January of 2024. He eventually \nperformed surgery on the claimant and directed her post-operative care, which included \ntherapy. Dr. Norton released the claimant without restrictions on 23 April 2024, noting \nthat “she will continue therapy in the form of range of motion and strengthening.” At \nanother visit on 29 May 2024, Dr. Norton placed the claimant at MMI, noting that “She is \ndoing much better. Her pain is improved. She was released from therapy.” On 1 July 2024, \nhe authored a letter assigning a zero percent impairment rating. The letter notes again that \nthe claimant “has gotten progressively better.” It goes on to state that, “At her last visit on \n5/29/2024 I released her to drive to work without restrictions. She will come back to see me \nas needed.” While Dr. Norton noted earlier that therapy was aimed at improving the \nclaimant’s strength and range of motion, he did not make any specific findings relative to \n\nK. BISHOP- H307524 \n12 \n \nthose stated goals. The letter does not include any information about objective testing or \nmeasures used to determine a zero percent impairment rating. \nOn 16 August 2024, the claimant sought another opinion on whether she was \npermanently impaired. She testified that her evaluation with FTC was more thorough than \nany exam performed by Dr. Norton and, specifically, that her range of motion was \nmeasured. The evaluation resulted in a finding that the claimant was entitled to what \namounted to a 1% impairment of the whole person due to a slight radial deviation \nimpairment.  \nThe Commission is authorized to accept or reject a medical opinion and is authorized \nto determine its medical soundness and probative value. Poulan Weed Eater v. Marshall, 79 \nArk. App. 129, 84 S.W.3d 878 (2002). Based on the thorough and specific findings reported \nin the FTC evaluation, I assign more evidentiary weight to that impairment rating than the \none provided by Dr. Norton in a letter a month after his last visit with the claimant. The \nclaimant is, therefore, entitled to PPD benefits in accordance with a 1% rating of the whole \nperson. \nB. The Claimant is Entitled to the Cost of the Impairment Evaluation \nPerformed by Functional Testing Centers, Inc. \n \nThe claimant argues that the respondents are responsible for the costs associated \nwith the impairment evaluation performed by FTC. The respondents argue that the \nevaluation was not reasonable or necessary in light of the rating assigned by Dr. Norton, \nand they further argue that the evaluation was not authorized. \nAs discussed in Tempworks Mgmt. Servs. v. Jaynes, 2023 Ark. App. 147, 662 S.W.3d \n280, A.C.A. § 11-9-514(c)(1-3) requires that the respondents provide an injured employee \nwith a notice explaining the rights and responsibilities around a change of physician. \nUnauthorized treatment sought after an employee receives that notice is not the employer’s \n\nK. BISHOP- H307524 \n13 \n \nresponsibility. But an employee is not constrained by the change-of-physician rules if a copy \nof the notice is not provided. \nThe record in this claim does include a signed Form AR-N evidencing that the \nrespondents provided notice of the change-of-physician rules to the claimant. That form, \nhowever, was not provided to the claimant until after the claimant underwent a second \nopinion on her impairment evaluation from FTC. As noted above, the FTC evaluation \nsummary is dated 16 August 2024, and the Form-N is dated 24 September 2024. The \nclaimant was, thus, not bound by the change-of-physician rules; and the respondents’ \nargument that the FTC evaluation was unauthorized necessarily fails. \nThe parties disagree on whether the FTC evaluation was reasonable or necessary. \nThe claimant testified that the FTC evaluation involved thorough testing that Dr. Norton \ndid not perform during his exam(s) with the claimant, and that evaluation, indeed, found \nthat the claimant suffered an impairment. As discussed above, I have found the results of \nthe FTC evaluation to be credible. \nAn employer shall promptly provide for an injured employee such medical treatment \nas may be reasonably necessary in connection with the injury received by the employee. \nA.C.A. § 11-9-508(a). The claimant bears the burden of proving that she is entitled to \nadditional medical treatment. Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 \n(1999). What constitutes reasonable and necessary medical treatment is a question of fact \nfor the Commission. White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \nThe claimant sustained an accepted compensable injury and ultimately underwent \nsurgery and therapy related to that injury. She disagreed with her physician’s opinion on a \npermanent impairment rating and sought additional treatment, by way of a second opinion \non an impairment evaluation, from a licensed provider in the practice of performing \n\nK. BISHOP- H307524 \n14 \n \nimpairment evaluations. Under the facts of this claim, I find that a preponderance of the \nevidence establishes that the evaluation performed by FTC was reasonably necessary \ntreatment and that the respondents are liable for the cost of that evaluation. \nC. The Claimant is Entitled to Benefits Under A.C.A. § 11-9-505 for the Period \nof Time between her Release to Return to Work and her Reemployment. \n \nThe claimant seeks benefits under A.C.A. § 11-9-505 for the time between her full \nduty release (and the corresponding end of her TTD payments) and her return to \nemployment with the respondent. The statute, in pertinent part, provides: \nAny employer who without reasonable cause refuses to return an employee \nwho is injured in the course of employment to work, where suitable \nemployment is available within the employee's physical and mental \nlimitations, upon order of the Workers' Compensation Commission, and in \naddition to other benefits, shall be liable to pay to the employee the difference \nbetween benefits received and the average weekly wages lost during the \nperiod of the refusal, for a period not exceeding one (1) year. \n \nA.C.A. § 11-9-505(a)(1). \n \n In Torrey v. City of Fort Smith, 55 Ark. App. 226, 934 S.W.2d 237 (1996), the Court \nof Appeals discussed the application of the statute. \nBefore Ark. Code Ann. § 11-9-505(a) applies several requirements must be \nmet. The employee must prove by a preponderance of the evidence that he \nsustained a compensable injury; that suitable employment which is within \nhis physical and mental limitations is available with the employer; that the \nemployer has refused to return him to work; and, that the employer's refusal \nto return him to work is without reasonable cause. \n \nThat case involved an employer’s offer for an injured employee to interview for an open \nposition. That uncertain offer of potential employment was, however, not consistent with \nthe policy promoted by the law. The Court explained, “In reviewing pertinent sections of the \nAct, we find that the legislative intent that the injured worker be allowed to reenter the \nwork force permeates the language of sections of the Act.” Id. \n\nK. BISHOP- H307524 \n15 \n \n In Ark. Dept. of Corr. v. Jennings, 2017 Ark. App. 446, 526 S.W.3d 924, the Court \nmore recently reviewed a similar claim for benefits under § 505. Discussing its affirmance \nof an award for benefits, the Court explained: \n... Jennings only sought and was awarded 505(a) benefits for ADC's refusal to \nput her back to work when she fully recovered from her injury and could \nwork without medical restriction. ADC contends that it did not refuse to \nreturn Jennings to work because it told her that she could reapply for an \nADC job once she recovered. Jennings's counsel demanded reinstatement to \nher previous position, which the ADC refused. We agree with the \nCommission's findings that allowing an injured employee to \"reapply\" and \"be \nconsidered\" for employment is not sufficient to meet the statutory \nrequirement that the employer return the employee to work. That is because \nthe option to \"reapply\" and \"be considered\" for employment necessarily \ninvolves an element of uncertainty as to the outcome of the application \nprocess. Moreover, even if Jennings were rehired, she would have lost credit \nfor the time she had successfully worked during her probationary period, \nrequiring her to start anew. Both the plain language of the statute and its \nrecognized purpose focus on returning an injured employee to work, and we \nagree with Jennings that reinstatement, rather than reapplication, was \nrequired.  \n \nId. Here, the claimant was ultimately reinstated to her previous role at the same level of \npay. But it was not without the intervening uncertainty of her reinstatement during a time \nwhere there is no dispute that she was not receiving any benefits or wages. Indeed, the \nrespondents made clear that her reinstatement was not guaranteed. Discussing the \ndifference in reinstatement and a conditional offer to reapply, the Court made clear in \nJennings that “reapplication is not the equivalent of reinstatement, and the record clearly \nshows that [the claimant’s] attorney made a formal demand for reinstatement, which the \n[respondent] refused.” The same is true here. \n The respondents argued at the hearing that the claimant’s time without \nemployment or any benefits should be excused as distinct from a “refusal” to reinstate her \ndue to the nature of prison operations and the administrative time and process it takes to \nonboard someone into such a role. I do not find that the caselaw supports such a distinction \n\nK. BISHOP- H307524 \n16 \n \nor demurrer from an employer’s obligations under the law. The claimant should have been \nreinstated upon her release without restrictions. \n After her release without restrictions, the claimant received a letter, dated 25 April \n2024, stating that her final check for TTD benefits was being issued, covering “4/18/2024 to \n4/23/2024.” [Resp. Ex. No 2 at 5.] The claimant testified that her employment began again \non 13 May 2024, and the respondents’ documentary evidence was consistent with that date. \nAccordingly, I find that the claimant is entitled to benefits under A.C.A. § 11-9-505 for the \ntime between her release, beginning 24 April 2024, and her eventual return to work on 13 \nMay 2024. \n \nD. The Claimant Proved by a Preponderance of the Evidence that She is \nEntitled to an Attorney’s Fee. \n \n Consistent with the findings above, the claimant has met her burden on proving her \nentitlement to an attorney’s fee under A.C.A. § 11-9-715. \nV.  ORDER \n Consistent with the findings and conclusions above, the claimant is entitled to (1) \nbenefits under A.C.A. 11-9-505, (2) PPD benefits consistent with a 1% impairment to the \nwhole body, (3) the cost of the reasonably necessary impairment evaluation, and (4) an \nattorney’s fee on the indemnity benefits awarded herein, consistent with A.C.A. § 11-9-715. \nThis award shall bear interest at the legal rate pursuant to A.C.A. § 11-9-809. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":31583,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H307524 KANEKALON BISHOP, EMPLOYEE CLAIMANT ARK. DEPT. OF CORRECTION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT OPINION FILED 31 DECEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judg...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["wrist","back","carpal tunnel"],"fetchedAt":"2026-05-19T22:45:58.528Z"},{"id":"alj-H302570-2024-12-30","awccNumber":"H302570","decisionDate":"2024-12-30","decisionYear":2024,"opinionType":"alj","claimantName":"Benjermen Bryant","employerName":"Blackstone Construction LLC","title":"BRYANT VS. BLACKSTONE CONSTRUCTION LLC AWCC# H302570 December 30, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRYANT_BENJERMEN_H302570_20241230.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRYANT_BENJERMEN_H302570_20241230.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H302570 \n \nBRENJERMEN BRYANT,  Employee                                                            CLAIMANT \n \nBLACKSTONE CONSTRUCTION LLC, Employer                                  RESPONDENT                                                              \n \nTRAVELERS INSURANCE CO., Carrier                                                 RESPONDENT \n \n \n \n OPINION/ORDER FILED DECEMBER 30, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by GUY ALTON WADE,  Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \nClaimant suffered an admittedly compensable injury to his right leg while working \nfor respondent on April 17, 2023.  On December 4, 2023, claimant was released to full \nduty with no  permanent  impairment  rating.   On  April  9, 2024,  Form AR-C  was  filed on \nclaimant’s behalf by Attorney Laura Beth York.  On August 26, 2024, Attorney York filed \na Motion to Withdraw as Counsel.  Attorney York’s motion was granted by an Order filed \nby  the  Full  Commission  on October  3,  2024.    Shortly  thereafter,  on  October  7,  2024, \nrespondent  filed  a  Motion  to  Dismiss.    A  hearing  was  scheduled on the respondent’s \nmotion for December 18, 2024 and notice of the hearing was sent to claimant by certified \nmail and delivered on November 8, 2024.  Claimant did not appear at the hearing and \n\nBryant – H302570 \n \n2 \n \nhas not responded to the respondent’s Motion to Dismiss. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nMotion  to  Dismiss should  be  and  hereby  is  granted.    This  dismissal  is  pursuant  to \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2176,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302570 BRENJERMEN BRYANT, Employee CLAIMANT BLACKSTONE CONSTRUCTION LLC, Employer RESPONDENT TRAVELERS INSURANCE CO., Carrier RESPONDENT OPINION/ORDER FILED DECEMBER 30, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washing...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:56.449Z"},{"id":"alj-H400572-2024-12-20","awccNumber":"H400572","decisionDate":"2024-12-20","decisionYear":2024,"opinionType":"alj","claimantName":"Tammy Craft","employerName":"Family Dollar Stores Of Ar, Inc","title":"CRAFT VS. FAMILY DOLLAR STORES OF AR, INC. AWCC# H400572 December 20, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CRAFT_TAMMY_H400572_20241220.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CRAFT_TAMMY_H400572_20241220.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H400572 \n \n \nTAMMY CRAFT, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nFAMILY DOLLAR STORES OF AR, INC.,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nGALLAGHER BASSETT SERVICES, INC.,/SEDGWICK \nCLAIMS MANAGEMENT SERVICES, INC., INSURANCE  \nCARRIER/THIRD PARTY ADMINISTRATOR(TPA)                                        RESPONDENT                                                                    \n \nOPINION FILED DECEMBER 20, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant  represented  by  the  Honorable  Mark  A.  Peoples,  Attorney  at  Law,  Little  Rock, \nArkansas.  Mr. Peoples waived his appearance at the hearing    \n \nRespondents represented by the Honorable Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A  hearing  was  held  on December  19, 2024,  in  the  present  matter  pursuant  to Dillard  v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), to determine whether \nthe above-referenced matter should be dismissed for failure to prosecute under the provisions of \nArk. Code Ann. §11-9-702, and/or Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \nThe  record  consists  of  the  transcript  of December  19, 2024, hearing  and  the  documents \nheld therein.  The Commission’s Exhibit consists of two pages,  which  were  provided to  the \nCommission by the United States Postal Service.  It was marked accordingly.  The Respondents’ \n\nCRAFT - H400572 \n \n2 \n \nExhibit 1 consists of twelve (12) numbered pages of pleadings, correspondence, and various other \nforms related to this claim. \n                                                             Procedural History \n On April 22, 2024, the Claimant’s attorney filed with the Commission a claim for Arkansas \nworkers’ compensation benefits via a Form AR-C.  Per this document, the Claimant alleged that \nshe  sustained multiple injuries during the  course  and  in  the  scope  of  his employment with  the \nrespondent-employer, on December 28, 2023.  The Claimant requested both initial and additional \nbenefits.  In fact, he checked off all the boxes for every conceivable workers’ compensation benefit \nunder the law. \n  The respondent-insurance-carrier filed a Form AR-2 with the Commission on January 25, \n2024.  Per this form, the Respondents accepted this claim as a compensable claim. \n Since this time, the Claimant has not tried to pursue or otherwise resolve his claim, nor has \nhe made a bona fide request for a hearing since the filing for the Form AR-C.  \n Therefore, on December 16, 2024, the Respondents filed a Motion to Dismiss for Failure \nto Prosecute, with the Commission, along with a Certificate of Service to the Claimant’s attorney.  \nHence, the Respondents forwarded a copy of said motion to the attorney via an e-mail.  \n The Claimant’s attorney sent an email to my office on December 18, 2024.  He wrote, “I \nas that I be excused.  Claimant does not oppose, provided dismissal is w/o prejudice.”  \n    Pursuant to an e-mail, the Commission notified the parties that the matter had been set for \na hearing on the Respondents’ motion to dismiss.  Said hearing was scheduled for December 19, \n2024, at the Arkansas Workers’ Compensation Commission in Little Rock, Arkansas. \nThe hearing was held as scheduled.  The Claimant’s attorney waived his appearance at the \nhearing.   The Respondents’ counsel appeared  at  the  hearing  and argued that  the Claimant  has \n\nCRAFT - H400572 \n \n3 \n \nfailed  to  prosecute  her claim  for  workers’  compensation  benefits.  More  specifically, the \nRespondents’ counsel noted that the Claimant has not taken any action to advance her claim since \nthe filing of the Form AR-C, which was done almost a year ago.  He further essentially noted that \nthe Claimant’s attorney does not oppose the claim being dismissed without prejudice.  Therefore, \nthe Respondents’ attorney moved that this claim be dismissed without prejudice pursuant to Ark. \nCode Ann. §11-9-702, and/or Commission Rule 099.13.  \n            A review of the evidence shows that the Claimant has had ample time to pursue her claim \nfor workers’ compensation benefits, but she has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute her claim for workers’ compensation \nbenefits since the filing of the Form AR-C almost a year ago; and nor has she resisted the motion \nfor dismissal of his workers’ compensation claim.  In fact, counsel for the Claimant has advised \nthat he does not object to the claim being dismissed without prejudice.   \nHere, the evidence preponderates that the Claimant has failed to prosecute this claim for \nworkers’ compensation benefits. Counsel for the Claimant does oppose the claim being dismissed \nwithout  prejudice.  Therefore,  after  consideration  of  the  evidence before  me,  I  find that the \nRespondents’ motion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant \nto the  provisions of Ark. Code  Ann.§11-9-702, and Commission  Rule  099.13,  this  claim for \nworkers’ compensation benefits is hereby respectfully dismissed without prejudice to the refiling \nwithin the limitation period specified under the Arkansas Workers’ Compensation Act (the “Act”). \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n\nCRAFT - H400572 \n \n4 \n \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The  Claimant  does  not  object  to  this  claim  being  dismissed  without \nprejudice.    \n \n            4. The Respondents’ motion to dismiss this claim for lack of  prosecution  is \nhereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \n                                                           ORDER \n \n Based  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’  compensation  benefits.  This  dismissal  is per Ark.  Code  Ann.  §11-9-702, and \nCommission  Rule  099.13, without  prejudice to  the  refiling  of  this claim  within the limitation \nperiod specified under the Act. \n          IT IS SO ORDERED. \n \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":7193,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H400572 TAMMY CRAFT, EMPLOYEE CLAIMANT FAMILY DOLLAR STORES OF AR, INC., EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES, INC.,/SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., INSURANCE CARRIER/THIRD PARTY ADMINISTRATOR(TPA) RESPONDENT OPINION FILED DECEMBER 20,...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:52.185Z"},{"id":"alj-H400450-2024-12-20","awccNumber":"H400450","decisionDate":"2024-12-20","decisionYear":2024,"opinionType":"alj","claimantName":"Raymond Rosario","employerName":"Alter Trading, Inc","title":"ROSARIO VS. ALTER TRADING, INC. AWCC# H400450 December 20, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ROSARIO_RAYMOND_H400450_20241220.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROSARIO_RAYMOND_H400450_20241220.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H400450 \n \n \nRAYMOND ROSARIO, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nALTER TRADING, INC.,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nARCH INDEMNITY INSURANCE, CO., /GALLAGHER  \nBASSETT SERVICES, INC.,/INSURANCE CARRIER/THIRD  \nPARTY ADMINISTRATOR(TPA)                                                                        RESPONDENT   \n          \nOPINION FILED DECEMBER 20, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, did not appear at the hearing. \n \nRespondents represented by the Honorable Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A  hearing  was  held  on December  19, 2024,  in  the  present  matter  pursuant  to Dillard  v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), to determine whether \nthe above-referenced matter should be dismissed for failure to prosecute under the provisions of \nArk. Code Ann. §11-9-702, and/or Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \nThe  record  consists  of  the  transcript  of December  19, 2024, hearing  and  the  documents \nheld therein.  The Commission’s Exhibit consists of two pages,  which  were  provided to  the \nCommission by the United States Postal Service.  It was marked accordingly.  The Respondents’ \n\nROSARIO-H400450 \n \n2 \n \nExhibit  1 consists of nine (9)  numbered  pages of pleadings,  correspondence,  and  various  other \nforms related to this claim. \n                                                             Procedural History \n On January  22,  2024, the Claimant  filed  with  the  Commission  a  claim  for  Arkansas \nworkers’ compensation benefits via a Form AR-C.  Per this document, the Claimant alleged that \nhe sustained injuries during the course and in the scope of his employment with the respondent-\nemployer, on December 20, 2023, while unlatching a semi-trailer.  The Claimant requested both \ninitial and additional benefits.  In fact, he checked off all the boxes for every conceivable workers’ \ncompensation benefit under the law. \n  The respondent-insurance-carrier filed a Form AR-2 with the Commission on January 30, \n2024.  Per this form, the Respondents accepted this claim as a compensable medical only claim. \n On or about February 28, 2024, the Claimant requested a change of physician.  However, \nthe  Claimant  failed  to provide the Medical  Cost  Containment  Division  with the name  of  a \nphysician that he wished to see for his one-time change of physician request.  My review of the \nfile demonstrates that multiple emails were sent to the Claimant in this regard without a response.   \nAs a result, the file was returned to the Commission’s general files on July 9, 2024.   \n Since this time, the Claimant has not tried to pursue or otherwise resolve his claim, nor has \nhe made a bona fide request for a hearing since the filing for the Form AR-C.  \n Therefore, on October 18, 2024, the Respondents filed a Motion to Dismiss for Failure to \nProsecute, with the Commission, along with a Certificate of Service to the Claimant.  Hence, the \nRespondents mailed a copy of said motion to the Claimant via the United States Postal Service.  \nThe Commission sent a letter to the Claimant on October 22, 2024, informing Claimant of \nthe Respondents’ motion, and a deadline of twenty (20) days, for filing a written response.   Said \n\nROSARIO-H400450 \n \n3 \n \nletter was mailed to the Claimant by both first-class and certified mail. Per information received \nfrom the United States Postal Service, the letter notice mailed to the Claimant via certified mail \nwas left at the Claimant’s last known address listed with the Commission with an individual by \nthe name of Kyle  Watson, on November 5.   However, the letter sent by  first-class mail has not \nbeen returned to the Commission.   \n   Thus far, there has been no response from the Claimant.   \n Pursuant  to a  Hearing  Notice dated November  14,  2024,  the  Commission notified the \nparties  that  the  matter  had  been  set  for  a  hearing  on the Respondents’ motion  to dismiss.    Said \nhearing  was  scheduled  for December 19,  2024,  at  the  Arkansas  Workers’  Compensation \nCommission in Little Rock, Arkansas. \nSaid  notice  was  mailed  to  the  Claimant  by  both  first-class  and  certified  mail.   Per \ninformation received from the United States Postal Service, the letter notice mailed to the Claimant \nvia certified mail was left at the Claimant’s last known address listed with the Commission with \nan individual by the name of Kyle Watson, on November 18.  However, the letter sent by first-\nclass mail has not been returned to the Commission.  Based on the information provided by the \nPostal Service, I find the Claimant received proper notice of the hearing. \n Still, there was no response from the Claimant.   \nNevertheless,  the  hearing  was  held  as  scheduled.    The Claimant did  not appear at the \nhearing.  The Respondents’ counsel appeared at the hearing and argued that the Claimant has failed \nto prosecute his claim for workers’ compensation benefits.  More specifically, the Respondents’ \ncounsel noted that the Claimant has not taken any action to advance his claim since the filing of \nthe Form AR-C, which was done almost a year ago.  He further essentially noted that the Claimant \nhas not taken any affirmative action to resist his claim being dismissed.   \n\nROSARIO-H400450 \n \n4 \n \nTherefore, the Respondents’ attorney moved that this claim be dismissed pursuant to Ark. \nCode Ann. §11-9-702, and/or Commission Rule 099.13 without prejudice on this claim for both \ninitial and additional workers’ compensation benefits.   \nAdjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in the  \nRespondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4):  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n\nROSARIO-H400450 \n \n5 \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute his claim for workers’ compensation \nbenefits since the filing of the Form AR-C, almost a year ago; and nor has he resisted the motion \nfor dismissal of his workers’ compensation claim.   \nHere, the evidence preponderates that the Claimant has failed to prosecute this claim for \nworkers’ compensation benefits.  Moreover, I am convinced that the Claimant has abandoned this \nclaim.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that the Respondents’ \nmotion  to dismiss for  a  lack  of  prosecution to  be  well  taken.  I thus find  that  pursuant  to the \nprovisions of Ark. Code Ann.§11-9-702, and Commission Rule  099.13,  this  claim for workers’ \ncompensation benefits is hereby respectfully dismissed without prejudice to the refiling within the \nlimitation period specified under the Arkansas Workers’ Compensation Act (the “Act”). \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            4. The Respondents’ motion to dismiss this claim for lack of  prosecution  is \nhereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \n\nROSARIO-H400450 \n \n6 \n \n                                                           ORDER \n \n Based  upon  the  foregoing findings, I  have  no  alternative  but  to  dismiss  this  claim  for \nworkers’  compensation  benefits.  This  dismissal  is per Ark.  Code  Ann.  §11-9-702, and \nCommission  Rule  099.13, without  prejudice to  the  refiling  of  this claim  within the limitation \nperiod specified under the Act. \n          IT IS SO ORDERED. \n \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":10716,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H400450 RAYMOND ROSARIO, EMPLOYEE CLAIMANT ALTER TRADING, INC., EMPLOYER RESPONDENT ARCH INDEMNITY INSURANCE, CO., /GALLAGHER BASSETT SERVICES, INC.,/INSURANCE CARRIER/THIRD PARTY ADMINISTRATOR(TPA) RESPONDENT OPINION FILED DECEMBER 20, 2024 Hearing held b...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:54.328Z"},{"id":"alj-H305676-2024-12-19","awccNumber":"H305676","decisionDate":"2024-12-19","decisionYear":2024,"opinionType":"alj","claimantName":"Cedric Mitchell","employerName":"Hollowell Industries, LLC","title":"MITCHELL VS. HOLLOWELL INDUSTRIES, LLC. AWCC# H305676 December 19, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MITCHELL_CEDRIC_H305676_20241219.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MITCHELL_CEDRIC_H305676_20241219.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H305676 \n \nCEDRIC MITCHELL, EMPLOYEE                 CLAIMANT \n \nHOLLOWELL INDUSTRIES, LLC., EMPLOYER          RESPONDENT \n \nBRIDGEFIELD CASUALTY INS. CO, CARRIER/ \nSUMMIT CONSULTING, LLC, TPA           RESPONDENT \n  \n \n \nOPINION FILED 19 DECEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 19 December 2024 in Helena-West Helena, Arkansas. \n \nThe pro se claimant did not appear. \n \nThe Ryburn Law Firm, Mr. Jason Ryburn, appeared on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Helena-\nWest Helena, Arkansas, on 19 December 2024. This case relates to an alleged workplace \ninjury sustained on or about 24 August 2023. The claimant filed a Form AR-C on 27 \nSeptember 2023 alleging injuries to multiple body parts. A First Report of Injury was filed \non 1 September 2023, and a Form AR-2 was filed on 5 September 2023 denying the claim.  \n On 3 October 2024, the respondents requested a dismissal of this matter for failure \nto prosecute the claim. A letter from the Commission to the claimant communicating that \nmotion’s filing was dated 4 October 2024, and another letter setting a hearing on the \nmotion was dated 4 November 2024. Those letters provide notice that the claimant was not \nrequired to appear if he did not object to the dismissal of the claim.  \nI noted at the hearing that mailings from the Commission to claimants are sent via \nboth First Class and Certified Mail with return receipts requested. Returned mail is \n\nC. MITCHELL- H305676 \n2 \n \nregularly appended to the Commission’s file. This claim file does not include any returned \nor undeliverable mailings. \nThe respondents appeared on 19 December 2024, presented their motion, and \noffered supporting evidence into the record. See Exhibit No 1. As argued by the respondents \nat the hearing, the file reflects no request for a hearing on a claim in the relevant time \npreceding the filing of their motion. And the claimant did not appear to resist the dismissal \nof this claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2845,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H305676 CEDRIC MITCHELL, EMPLOYEE CLAIMANT HOLLOWELL INDUSTRIES, LLC., EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INS. CO, CARRIER/ SUMMIT CONSULTING, LLC, TPA RESPONDENT OPINION FILED 19 DECEMBER 2024 Heard before Arkansas Workers’ Compensation Commission...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:50.042Z"},{"id":"alj-H401379-2024-12-18","awccNumber":"H401379","decisionDate":"2024-12-18","decisionYear":2024,"opinionType":"alj","claimantName":"Hope Davis","employerName":"Ark. Opco Holding LLC","title":"DAVIS VS. ARK. OPCO HOLDING LLC. AWCC# H401379 December 18, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Davis_Hope_H401379_20241218.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Davis_Hope_H401379_20241218.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H401379 \n \nHOPE DAVIS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nARK. OPCO HOLDING LLC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nGREAT AMERICAN ALLIANCE INS. CO., \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED DECEMBER 18, 2024 \n \nHearing conducted on Wednesday, December 11,   2024,  before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in \nLittle Rock, Pulaski County, Arkansas. \n \nThe Claimant,  Ms. Hope  Davis, Pro Se,  of Benton,  Arkansas, did  not appear in  person at  the \nhearing.  \n \nThe Respondents were represented by the Honorable Jason Ryburn, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission for a full hearing. However, when the Claimant \nfailed to show up for the full hearing, Respondents’ counsel made a motion to  convert  the  full \nhearing  into  a  motion  to  dismiss  hearing.  I  granted  that motion.  Respondents  next renewed its \nprevious motion to dismiss, which I held in abeyance, due to Claimant’s objection to the dismissal \nmotion and subsequent request for a hearing. I heard oral argument on the Motion to Dismiss on \nDecember 11, 2024, in Little Rock, Arkansas.   \nThe  Claimant  worked  for  the  Respondent/Employer  as  a registered  nurse.  The  date  for \nClaimant’s  alleged  injury  was  on February 11,   2024.   She   reported   her   injury   to \nRespondent/Employer on  February  28,  2024. Respondents  admitted into  evidence Respondents \n\nDAVIS, AWCC No. H401379 \n \n2 \n \nExhibit 1, Form AR-C, pleadings, and correspondence consisting of 11 pages. Also, admitted into \nevidence  was  blue-backed Form  AR-1,  Form  AR-2, a  copy  of  certified  return  receipt dated \nNovember 15, 2024, hearing letter dated October 30, 2024, and copy of hearing notice/ Prehearing \nOrder filed October 30, 2024, as discussed infra. \nThe record reflects on February 23, 2024, a Form AR-C was filed with the Commission, \npurporting that Claimant received an umbilical hernia when she was lifting a patient. On February \n29, 2024, a Form AR-1 was filed with the Commission purporting to deny compensability due to  \nthe lack of a specific incident. On March 1, 2024, a Form AR-2 was filed by Respondents denying \ncompensability of the injury. The Respondents filed a Motion to Dismiss on September 4, 2024, \nalleging  a  lack  of  prosecution.  The  Claimant  faxed  a handwritten objection  to  the Motion that \nincluded a request for a hearing on September 16, 2024, to the Commission. As a result, I held the \nRespondents’ Motion in abeyance, sent  out  pre-hearing  questionnaires,  and  held  a  pre-hearing \nconference on October 30, 2024. During the pre-hearing conference a full hearing date was set for \nDecember 11, 2024, at 10 am., which both parties agreed to. \nThe  Claimant  was also sent notice  of  the full hearing  through certified  and  regular  U.S. \nMail, on October 30, 2024, to her last known address. The certified motion notice was unclaimed \nby the Claimant. However, the hearing notice that was sent regular U.S. Mail did not returned to \nthe Commission. And as mentioned before, the Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n\nDAVIS, AWCC No. H401379 \n \n3 \n \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the December 11, \n2024, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent  with a  full  hearing  and AWCC  Rule  099.13, the  Commission  scheduled  and \nconducted a hearing, with reasonable notice, to the Claimant. Though the certified hearing notice \nwas unclaimed, that same notice was also sent to the Claimant’s address of record by regular First-\nClass  U.S.  Mail  on October 30,  2024,  and  did  not  return  to  the  Commission.  The  Claimant  is \nresponsible  for  providing  the  Commission  with  her  current  address.  The  Commission  is \nresponsible for providing reasonable notice of a hearing to the Claimant. Sending a hearing notice \nto the last known address that was provided to it by the Claimant is reasonable. Thus, I find by the \npreponderance of the evidence that reasonable notice was given to the Claimant.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant has failed to appear at her own \n\nDAVIS, AWCC No. H401379 \n \n4 \n \nhearing that she requested. The Claimant has abandoned her claim by her failure to appear at her \nown hearing that she had requested. Therefore, I do find by the preponderance of the evidence that \nClaimant  has  failed  to  prosecute  her  claim  by  failing attend  her hearing. Thus, Respondents’ \nMotion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      _______________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6337,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H401379 HOPE DAVIS, EMPLOYEE CLAIMANT ARK. OPCO HOLDING LLC., EMPLOYER RESPONDENT GREAT AMERICAN ALLIANCE INS. CO., CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 18, 2024 Hearing conducted on Wednesday, December 11, 2024, before the Arkansas Workers’ Compensa...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":["hernia"],"fetchedAt":"2026-05-19T22:45:43.854Z"},{"id":"alj-H306984-2024-12-18","awccNumber":"H306984","decisionDate":"2024-12-18","decisionYear":2024,"opinionType":"alj","claimantName":"James Smart","employerName":"Signode Industrial Group Us, Inc","title":"SMART VS. SIGNODE INDUSTRIAL GROUP US, INC. AWCC# H306984 December 18, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SMART_JAMES_H306984_20241218.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SMART_JAMES_H306984_20241218.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H306984 \n \n \nJAMES R. SMART,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nSIGNODE INDUSTRIAL GROUP US, INC.,  \nEMPLOYER                                                                                                         RESPONDENT \n                                                                                                                                                                                                                                                                                                                            \nINDEMNITY INS. CO. OF N. AMERICA/ \nESIS, INC., \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                 \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED DECEMBER 18, 2024 \n \nHearing conducted on Wednesday,   December 18, 2024, before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in \nLittle Rock, Pulaski County, Arkansas. \n \nThe claimant, Mr. James R. Smart, of Benton, Saline County, Arkansas, failed and/or refused to \nappear at the hearing.  \n \nThe respondents were represented by the Honorable Eric Newkirk, Newkirk & Jones, Little Rock, \nPulaski County, Arkansas. \n \n \n \nSTATEMENT OF THE CASE \n \n       A hearing was conducted on Wednesday, December 18, 2024, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement).  \n       On October 10, 2024, the respondents filed a motion to dismiss without prejudice and brief in \nsupport  (MTD)  requesting  this  claim  be  dismissed  for  lack  of  prosecution  pursuant  to  the \naforementioned statute and Commission rule. In compliance with the applicable law the claimant \nwas provided due and legal notice of the respondents’ MTD, as well as the date, time, and location \n\nJames R. Smart, AWCC No. H306984 \n2 \n \nof  the  subject  hearing.  Thereafter,  the claimant did not respond in writing to the respondents’ \nmotion in any way, and he failed and/or refused to appear at the subject hearing. \n        The  respondents’  MTD  and  brief  in  support  thereof  contains  a  thorough  and  accurate \nrecitation of all relevant facts. I hereby incorporate the respondents’ MTD and brief in support \nthereof as if set forth word-for-word herein. (RX1 at 1-7). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. (Hearing Transcript; RX1 at 11). \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion \nto dismiss. Rather than recite a detailed analysis of the record, suffice it to say the preponderance \nof  the  evidence  introduced  at  the  hearing and  contained  in  the  record conclusively  reveals  the \nclaimant has failed and/or refused to either request a hearing within the last six (6) months, and he \nhas taken no steps whatsoever to prosecute this claim. \n        Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the applicable  law, the \nrepresentations  of credible counsel, and  other relevant matters  of  record,  I  hereby make  the \nfollowing: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed due and legal notice of the respondents’ MTD without prejudice \nand  brief  in  support  thereof filed with  the  Commission  on October  10,  2024,  as  well  as \nnotice of the date, time, and place of the subject hearing, the claimant failed and/or refused \n\nJames R. Smart, AWCC No. H306984 \n3 \n \nto respond in any way to the respondents’ letter MTD and failed and/or refused to appear \nat the hearing. Therefore, the claimant is deemed to have waived his right to a hearing on \nthe respondents’ MTD. \n \n3. The claimant has not requested a hearing within the last six (6) months, and he has failed \nand/or refused to prosecute this claim. \n \n4. Therefore, the respondents’ MTD without prejudice filed October 10, 2024, should be and \nhereby is GRANTED; and this claim is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed by Ark.  Code Ann. Section  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n        This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nJames R. Smart, AWCC No. H306984 \n4","textLength":5782,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306984 JAMES R. SMART, EMPLOYEE CLAIMANT SIGNODE INDUSTRIAL GROUP US, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF N. AMERICA/ ESIS, INC., CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED DECEMBER 18, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:45.921Z"},{"id":"alj-H207777-2024-12-18","awccNumber":"H207777","decisionDate":"2024-12-18","decisionYear":2024,"opinionType":"alj","claimantName":"Evelyn Villeda","employerName":"Frez-N-Stor","title":"VILLEDA VS. FREZ-N-STOR AWCC# H207777 December 18, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/VILLEDA_EVELYN_H207777_20241218.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"VILLEDA_EVELYN_H207777_20241218.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H207777 \n \nEVELYN VILLEDA  Employee                                                               CLAIMANT \n \nFREZ-N-STOR, Employer                                                                       RESPONDENT                                                              \n \nAMTRUST NORTH AMERICA, Carrier                                                   RESPONDENT \n \n \n OPINION/ORDER FILED DECEMBER 18, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by WILLIAM C. FRYE,  Attorney, No. Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n Claimant  suffered  a  compensable  injury  on  September  7,  2022.    Respondent \naccepted the injury and paid compensation benefits, including surgery by Dr. Benafield \nand payment of an impairment rating.  Claimant was released to return to work and did \nreturn to work for respondent.   \nAn AR-C was filed on claimant’s behalf by Attorney Mark Peoples.  Subsequent to \nthat  filing,  in  an  Order  filed  October  3,  2024,  the  Full  Commission  allowed  Attorney \nPeoples to withdraw as claimant’s counsel. \nNo further action has been taken in this case, and as a result,  respondent filed a  \nrequest for dismissal on October 7, 2024.  A hearing was set on the respondent’s motion \n\nVilleda (H207777) \n \n2 \n \nfor December 11, 2024.  Notice of the hearing was sent to claimant by certified mail at \nher  last  known  address.    The  certified  mail  was  returned  to  the  Commission  as \n“Insufficient Address.”  Claimant did not appear at the hearing and has not responded to \nthe respondent’s motion or taken any action to prosecute her claim. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nMotion to Dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2365,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207777 EVELYN VILLEDA Employee CLAIMANT FREZ-N-STOR, Employer RESPONDENT AMTRUST NORTH AMERICA, Carrier RESPONDENT OPINION/ORDER FILED DECEMBER 18, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas. ...","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:47.979Z"},{"id":"full_commission-H302552-2024-12-17","awccNumber":"H302552","decisionDate":"2024-12-17","decisionYear":2024,"opinionType":"full_commission","claimantName":"Sarah Papp","employerName":"Northwest Medical Center Benton Co","title":"PAPP VS. NORTHWEST MEDICAL CENTER BENTON CO. AWCC# H302552 December 18, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Papp_Sarah_H302552_20241217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Papp_Sarah_H302552_20241217.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H302552 \n \nSARAH SIX PAPP, EMPLOYEE    CLAIMANT \n \nNORTHWEST MEDICAL CENTER BENTON CO.,  \nEMPLOYER                                                                           RESPONDENT \n \nAIU INSURANCE/GALLAGHER BASSETT  \nSERVICES, CARRIER/TPA                                                   RESPONDENT \n \nOPINION FILED DECEMBER 17, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE JAMES A. ARNOLD, II, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed July 2, 2024. In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at a pre-\nhearing conference conducted on November 1, 2023 \nand contained in a pre-hearing order filed that same \ndate are hereby accepted as fact.  \n \n2. Claimant has failed to meet her burden of proving by a \npreponderance of the evidence that she suffered a \ncompensable injury to her neck, left shoulder, upper \n\nSix Papp-H302552  2 \n \n \nextremities and back on January 19, 2023 and/or \nJanuary 20, 2023. \n \n We have carefully conducted a de novo review of the entire record \nherein, and it is our opinion the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence the findings of fact made by the Administrative Law Judge \nare correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the July 2, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner  \n \n \n \n     \nCommissioner Willhite concurs. \n \n \nCONCURRING OPINION \n \n After my de novo review of the entire record, I concur with the \nmajority opinion finding that the Claimant failed to prove by a \n\nSix Papp-H302552  3 \n \n \npreponderance of the evidence that she suffered a compensable injury to \nher neck, left shoulder, upper extremities and back on January 19, 2023, \nand/or January 20, 2023. \n While Claimant did sustain an aggravation to her cervical spine, \nthere is insufficient evidence in the record to prove by a preponderance of \nthe evidence that this aggravation occurred as a result of a specific incident \nin the course and scope of her employment with the Respondent. To \nestablish a compensable injury by a preponderance of the evidence the \nClaimant must prove: (1) an injury arising out of and in the course of \nemployment; (2) that the injury caused internal or external harm to the body \nwhich required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings, as defined in Ark. Code \nAnn. §11-9-102(16), establishing the injury; and (4) that the injury was \ncaused by a specific and identifiable time and place of occurrence. Ark. \nCode Ann. § 11-9-102(4)(A)(i). Although there is some evidence in the \nrecord to support the Claimant’s contention of a specific incident at her \nplace of employment there is also evidence that contradicts this contention. \nAs a result, I cannot find by a preponderance of the credible evidence that \nthe Claimant’s injury to her neck, left shoulder, upper extremities and back \noccurred on either January 19, 2023, or January 20, 2023, and therefore \ncannot say that the Claimant suffered any compensable injury.  \n\nSix Papp-H302552  4 \n \n \n For the foregoing reason, I concur with the majority opinion. \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":4174,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H302552 SARAH SIX PAPP, EMPLOYEE CLAIMANT NORTHWEST MEDICAL CENTER BENTON CO., EMPLOYER RESPONDENT AIU INSURANCE/GALLAGHER BASSETT SERVICES, CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 17, 2024 Upon review before the FULL CO...","outcome":"affirmed","outcomeKeywords":["affirmed:2","denied:2"],"injuryKeywords":["neck","shoulder","back","cervical"],"fetchedAt":"2026-05-19T22:29:44.783Z"},{"id":"alj-H404694-2024-12-17","awccNumber":"H404694","decisionDate":"2024-12-17","decisionYear":2024,"opinionType":"alj","claimantName":"Clayton Abel","employerName":"Easter Seals Arkansas","title":"ABEL VS. EASTER SEALS ARKANSAS AWCC# H404694 December 17, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ABEL_CLAYTON_B_H404694_20241217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ABEL_CLAYTON_B_H404694_20241217.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H404694 \n \nCLAYTON B. ABEL, EMPLOYEE       CLAIMANT \n \nEASTER SEALS ARKANSAS, EMPLOYER,            RESPONDENT \n \nATA WORKERS’ COMP SI TRUST, CARRIER/ \nRISK MANAGEMENT RESOURCES, TPA           RESPONDENT \n  \n \n \nOPINION FILED 17 DECEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 11 December 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nWorley, Wood & Parrish, P.A., Mr. Jarrod Parrish, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 11 December 2024. This case relates to an alleged workplace injury \nsustained on or about 10 October 2022. A First Report of Injury was filed by the \nrespondents on 25 July 2024, and A Form AR-2 was filed the same day, denying that the \nclaimant was employed by the respondent. Prior to those filings, a Form AR-C was filed by \nthe claimant, on 23 July 2023, claiming injuries to the claimant’s shoulder. See \nRespondents’ Exhibit No 1. \n The respondents filed a Motion to Dismiss for Failure to Prosecute on 11 October \n2024, citing the applicable rule. The respondents appeared on 11 December 2024, presented \ntheir motion, and offered supporting evidence into the record.  \n The claimant did not appear. However, correspondence from the claimant’s mother \nwas entered into the record. See Commission’s Exhibit No 1. In telephone and email \n\nC. ABEL- H404694 \n2 \n \ncorrespondence with the Commission, the claimant’s mother stated that she was acting on \nbehalf of the claimant after some attempts to retain counsel. She advised that the claimant \nobjected to the dismissal of the claim and noted that difficulties with travel arrangements \nprevented their appearance. She requested additional time to prosecute the claim. \n Commission Rule 99.13 provides for a dismissal for failure to prosecute an action \nupon application by either party. Based on the record, the available evidence, and the \narguments of the respondents’ counsel, I find that the respondents’ Motion to Dismiss \nshould be denied without prejudice at this time. \n If the claimant is unable to retain counsel, he may seek assistance in prosecuting his \nclaim through the Commission’s Legal Advisor Division. Correspondence will be sent from \nthis office to the parties in anticipation of litigation continuing in this matter. \nORDER \n The Motion to Dismiss is DENIED WITHOUT PREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2668,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H404694 CLAYTON B. ABEL, EMPLOYEE CLAIMANT EASTER SEALS ARKANSAS, EMPLOYER, RESPONDENT ATA WORKERS’ COMP SI TRUST, CARRIER/ RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED 17 DECEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (A...","outcome":"dismissed","outcomeKeywords":["dismissed:4","denied:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:45:31.164Z"},{"id":"alj-H304808-2024-12-17","awccNumber":"H304808","decisionDate":"2024-12-17","decisionYear":2024,"opinionType":"alj","claimantName":"Parker Amason","employerName":"K & S Computing","title":"AMASON VS. K & S COMPUTING AWCC# H304808 December 17, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/AMASON_PARKER_H304808_20241217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"AMASON_PARKER_H304808_20241217.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H304808 \n \nPARKER AMASON, Employee      CLAIMANT \n \nK & S COMPUTING, Employer      RESPONDENT \n \nFARMERS INSURANCE EXCHANGE, Carrier/TPA    RESPONDENT \n \n \n OPINION FILED DECEMBER 17, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and appearing pro se. \n \nRespondent represented by KEVIN STATEN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n The  respondents in  this  matter  filed  a  Motion  to  Dismiss  for  failure  to  prosecute  stating \nthat the claimant had failed to take action on the case for a period of nine months. The claimant \nwas  previously  represented  by Tanner  Thomas,  but  he  withdrew  as  counsel  on December  19, \n2023, and  the  claimant  has  not  appeared  with  new  counsel.  The  inactive  period  of  nine  months \nfollows  the  withdrawal of the claimant’s attorney. As such, the respondents have asked for a \ndismissal of the claimant’s case.  \n The  claimant  appeared  pro  se  at  the  hearing  in  this  matter.  The  claimant  informed  the \nCommission that he did not want his case dismissed and that, in fact, he wanted to move forward \nwith  the  prosecution  of  his  case.  The  claimant  was  also  agreeable  to  engaging  in  the  discovery \nprocess for the respondents and testified that he intended to do so. Given the claimant’s, I believe \n\nAmason – H304808 \n \n-2- \ntruthful, request and desire to move his case forward, I hereby deny the respondents’ Motion to \nDismiss. \nFrom  a  review  of  the  record  as  a  whole,  to  include  all  matters  properly  before  the \nCommission,  and  having  had  an  opportunity  to  hear  the  statements  of  the  claimant  and  the \nrespondents, I find that the respondents’ Motion to Dismiss is denied at this time. \nORDER \n Pursuant  to  the  above  statement  of  the  case,  I  hereby  deny  respondents’  Motion  to \nDismiss at this time. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2363,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H304808 PARKER AMASON, Employee CLAIMANT K & S COMPUTING, Employer RESPONDENT FARMERS INSURANCE EXCHANGE, Carrier/TPA RESPONDENT OPINION FILED DECEMBER 17, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas....","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:33.222Z"},{"id":"alj-H302325-2024-12-17","awccNumber":"H302325","decisionDate":"2024-12-17","decisionYear":2024,"opinionType":"alj","claimantName":"Alisha Berry","employerName":"Home Helpers Of Nwa","title":"BERRY VS. HOME HELPERS OF NWA AWCC# H302325 December 17, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BERRY_ALISHA_H302325_20241217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BERRY_ALISHA_H302325_20241217.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H302325 \n \nALISHA BERRY, Employee CLAIMANT \n \nHOME HELPERS OF NWA, Employer RESPONDENT \n \nAMTRUST NORTH AMERICA, Carrier RESPONDENT \n \n OPINION FILED DECEMBER 17, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents   represented   by WILLIAM   C.   FRYE,   Attorney   at   Law, North   Little   Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On September 26, 2024, the above captioned claim came on for a hearing at Fort Smith, \nArkansas.      A  pre-hearing  conference  was  conducted  on July  15,  2024,  and  an  Amended Pre-\nhearing  Order  was  filed  on September  25,  2024.      A  copy  of  the  Pre-hearing  Order  has  been \nmarked Commission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on March 7, \n2023. \n 3. The claimant sustained a compensable injury to her right knee on or about March 7, \n2023. \n 4. All prior opinions are res judicata. \n By agreement of the parties the issue to litigate is limited to the following: \n\nBerry – H302325 \n \n-2- \n 1.  Whether  Claimant  is  entitled  to  additional  medical  treatment  in  the  form  of  a  trial \nspinal cord stimulator and prescription medications as recommended by Dr. Miedema. \n The claimant's contentions are as follows: \n“The   claimant   contends   that   the   respondents   have   repeatedly \nrefused  to  pay  the  benefits  awarded  to  her  under  the  December  5, \n2023,  Opinion  for  a  period  of  an  excess  of  20  days  after  the \nOpinion.  They  have  willfully  refused  to  pay  the  benefits  awarded \nand  are  entitled  to  the  36%  penalty  provided  by  Arkansas  Code \nAnn. §11-9-802 (e). In fact, the respondents have failed or refused \nto  pay  considerable  benefits  in  a  timely  manner.  The  medical \ntreatment   provided   and   recommended   by   Dr.   Miedema,   her \nauthorized  treating  physician  is  reasonably  necessary  under  the \nprovisions  of  Arkansas  Code  Ann  §11-9-508.  The  respondents \nhave controverted the claimant’s entitlement to all temporary total \ndisability benefits in excess of $208 per week.” \n \n The respondents’ contentions are as follows: \n“The   Respondents   contend   that   all   benefits   awarded   to   the \nClaimant have been paid and no penalty is warranted.” \n \n The  claimant  in  this  matter  is  a 44-year-old  female who  sustained  a  compensable  injury \nto  her  right  knee  on  March  7,  2023.  The  respondent  provided  the  claimant  with  medical \ntreatment  for  her  compensable  knee  injury  including  treatment  from  Dr.  Tom  Coker  on  June  5, \n2023.  Dr.  Coker  is  an  orthopedist,  and,  in  his  June  5,  2023,  medical  report  discussed  his  belief \nthat the claimant’s compensable right knee injury goes beyond a “simple fall and contusion” due \nto the development of RSD in the claimant’s right knee which Dr. Coker believed was related to \nher compensable right knee injury. Dr. Coker referred the claimant to a “physical medicine and \nrehab physician,” one of which was specifically Dr. Mark Miedema. The claimant was also \nordered to physical therapy and taken off work at that time.  \n\nBerry – H302325 \n \n-3- \n The  claimant  entered  physical  therapy  and  began  to  see  Dr.  Miedema  in  June  of  2023. \nDuring that time period the claimant’s right knee symptoms continued. At the hearing in this \nmatter the claimant described her right knee difficulties as follows: \nQ And why would you want that help? What is your problem \ncurrently? \n \nA Well,  I  am  on  crutches.  I  have  a  knee  that  all  the  way \naround,  all  the  way  to  the  bottom,  the  side,  everything,  it  hurts.  I \ncan’t bend it hardly. It feels like it is just tight, like a rubber band is \nwrapped around it just holding it there. I have burning pain. I have \na cold leg and foot. My foot is numb constantly. I have tingling. It \nthrobs. It aches. It’s painful. \n \nQ Do you have discoloration of the skin? \n \nA Do what? \n \nQ Do you have discoloration of your skin around your knee? \n \nA I  get  discoloration  all  the  way  down  my  leg.  Sometimes  it \nstays there longer than others. \n \n On October 16, 2023, the claimant was seen by Dr. Miedema.  Following is a portion of \nthat  medical  report  where  Dr.  Miedema  expresses  his  belief  that  the  claimant’s  current \ndifficulties are related to her compensable right knee injury and not related to her lumbar spine as \nfollows: \n1. Pain of the right knee joint- \nMs.  Berry  presents  for  follow-up  evaluation  of  several  months \nright  knee  pain.  She  had  a  fall  at  work  in  March  2023  which \nprecipitated her symptoms. She has been having to use crutches to \nget   around.   She   has   tried   physical   therapy   for   desensitizing \ntechniques  and  attempts  of  improving  range  of  motion  as  well  as \nexercises for her lumbar spine. She is here to review the results of \nher MRI and discuss treatment options. \n \nShe  had  an  MRI  of  the  right  knee  at  Ozark  on  5/22/2023  which \nshowed  a  contusion  of  the  anterior  medial  tibial  condyle.  On  my \nreview  of  her  lumbar  MRI  taken  at  Prime  Medical  Imaging  on \n\nBerry – H302325 \n \n-4- \n9/12/23  it  shows  mild  degenerative  changes  of  the  lumbar  spine. \nNo neural compression at any level. \nM25.561: Pain in right knee \n \n2. Lumbosacral radiculopathy- \nI  do  not  think  her  current  symptoms  are  referred  from  the  lumbar \nspine \n \nI  again  educated  the  patient  on  conservative  treatment  options \nincluding  physical  therapy,  home  exercise  program,  healthy  diet \nand lifestyle, acupuncture, massage, chiropractic care, \npharmacotherapy and injections. \n \nI encouraged the patient to continue with a home exercise program \npreviously taught by physical therapy. \nM54.17: radiculopathy, lumbosacral region \n \nIn  that  same  report  Dr.  Miedema  describes  his  opinion  as  to  the  source  of  the  claimant’s \nsymptoms and treatment for her right knee as follows: \n3. Chronic pain syndrome- \nChronic   pain   syndrome   secondary   to   complex   regional   pain \nsyndrome type 1 in the lower extremity. \nG89.4: Chronic pain syndrome \n \n4. Complex regional pain syndrome type 1- \nRight  lower  extremity  CRPS  type  1  after  a  fall  and  subsequent \nbony  contusion.  The  patient  qualifies  for  diagnosis  of  Complex \nRegional  Pain  Syndrome  (CRPS)  Type  1  based  on  the  Budapest \ncriteria  presenting  symptoms  of  allodynia  &  hyperalgesia,  with \nassociated  vasomotor/sudomotor  changes.  She  saw  Dr.  Coker  for \nthe  knee  and  there  is  no  surgical  indication  at  this  time.  She  has \nbeen doing   PT   with   significant   ongoing   pain   and   functional \nlimitation.  She  cannot  bear  weight  on  her  right  leg  and  has  been \nambulating using crutches. \n \nShe  is  s/p  lumbar  sympathetic  nerve  blocks  on  7/2/23  and  8/3/23 \nwith  temporary  relief  after  each  injection  which  is  helpful  for \ndiagnostic  purposes.  She  has  continued  working  with  physical \ntherapy   for   improving   range   of   motion   and   desensitization \ntechniques.  She  continues  to  utilize  pregabalin  100  mg  twice  per \nday,  Celebrex  200  mg  once  per  day,  and  baclofen  10  mg  3  times \nper  day  as  needed.  In  the  setting  of  CRPS  and  failure  to  improve \nwith  conservative  treatments  over  the  past  7  months  I  think \n\nBerry – H302325 \n \n-5- \nneuromodulation   is   the   appropriate   next   step   in   her   care.   I \nexplained the mechanism of action of spinal  cord stimulation. We \ndiscussed the trial procedure and permanent implant. We discussed \nthe risk, benefits and alternatives. Given the focal pain in her right \nknee  in  the  absence  of  back  pain  I  think  a  dorsal  root  ganglion \nstimulation is the most appropriate. We will target the right L4 and \nL5  nerve  roots.  We  will  get  her  set  up  with  neuropsychology \nevaluation for preoperative clearance. \n \nI do not yet think she has reached maximal medical improvement. I \ndo not think she can return to work at this time. \n \n It  is during the  claimant’s  October  16,  2023,  visit  with  Dr.  Miedema  that  he  first \nrecommends  a  trial  spinal  cord  stimulator  for  the  claimant.  Dr.  Miedema  also  recommends \nprescription  medications  for  her  right  knee  at  that  time.  This  is  the  central  issue  in  the  matter \nbefore the Commission as to whether the  claimant is entitled to additional medical treatment in \nthe  form  of  a  trial  spinal  cord  stimulator  and  prescription  medications  recommended  by  Dr. \nMiedema. \n The  respondent  sent  the  claimant  to  see  Dr.  Chris  Dougherty  for  a  second  opinion.  On \nJanuary 16, 2024, Dr. Dougherty authored a letter to the respondent. In that letter Dr. Dougherty \nanswered  several  questions  posed  to  him  by  the  respondent  in  regard  to  his  examination  of  the \nclaimant. Following is a portion of the questions posed, and answers given by Dr. Dougherty: \n3.  In  your  expert  opinion,  is  the  treatment  of  RSD  and  proposed \ntreatment of spinal cord stimulator related to the 03/07/2023 work \ninjury?  Do  you  believe  the  Spinal  Cord  Stimulator  is  needed  for \nthe treatment of RSD? Please explain in detail. \n \nIn    my   expert  opinion,  the  treatment  of  the  RSD  has  been \nappropriate   and   within   the   guidelines   and   standards   of   care. \nImprovement  after  lumbar  injection  correlates  directly  with  the \npatient’s diagnosis. Improvements also indicates the patient is an \nexcellent spinal cord stimulator candidate. \n \n*** \n\nBerry – H302325 \n \n-6- \n6. Has all treatment for the 03/07/2023 injury been appropriate and \nnecessary,  or  do  you  feel  it  has  been  excessive?  Please  explain  in \ndetail. \n \nThe record is reviewed in great detail. The treatment appears to be \nmedically  necessary,  appropriate  and  within  the  guidelines  of \ntreatment for RSD. No treatment is noted to be excessive. \n \n7.  What  further  treatment,  if  any,  is  necessary  and  appropriate  as \ndirectly related to the 03/07/2023 injury? Please provide a specific \ntreatment   plan   and   duration   that   this   treatment   should   be \nimplemented. \n \nSpecifically,  treatment  up  to  date  has  been  medically  necessary, \nappropriate   and   meets   guidelines.   Improvements   in   pain   as \ndocumented  by  the  lumbar  injections  indicates  the  patient  is  an \nexcellent  candidate  for  a  spinal  cord  stimulator  as  is  noted  in  the \nrecord. The specific treatment plan would be the implementation of \nthe  spinal  cord  stimulator  first  through  a  trial  and  if  the  trial  is \nsuccessful implantation of a permanent spinal cord stimulator. The \ntreatment of duration is a lifetime. \n \n*** \n11.  In  your  medical  opinion,  has  claimant  reached  Maximum \nMedical Improvement, as directly related to the 03/07/2023 injury? \nPlease  explain  in  detail.  If  the  claimant  is  not  yet  at  Maximum \nMedical Improvement, when will this status be reached? \n \nThe claimant has not reached maximum medical improvement as it \nrelated to the 3/7/2023 injury. She currently suffers from RSD also \nknow  as  chronic  regional  pain  syndrome.  The  request  to  estimate \nwhen  MMI  is   achieved  will  not  be  known until  the  patient \nundergoes installation of the spinal cord stimulator trial and in the \nevent this is successful, a permanent spinal cord stimulator. \n \n The  respondent  sent  the  claimant  to  see  Dr.  Richard    Back,  a  neuropsychologist,  at \nNorthwest Arkansas Psychological Group for a “pre-surgical evaluation.” That report is found at \nRespondents’ Exhibit 1, pages 1-3. From a review of the report, it appears Dr. Back administered \nthe  Minnesota  Multiphasic  Personality  Inventory-2  to  the  claimant.  Following  is  the  “Test \nResults and Interpretation” portion of that report: \n\nBerry – H302325 \n \n-7- \nThe MMPI-2 was completed. An examination of the validity scales \nindicates that this individual produced an interpretable profile. Her \nscore  on  the  F  scale  was  elevated  moderately.  These  patients  are \nacknowledging  unusual  experiences  represented  in  these  scales \nmore than the typical person. The elevation reflects the extent and \nseverity of their psychopathology, and how the patient has adjusted \nto  his  or  her  psychopathology.  This  individual  also  produced \nelevations on scales 2 and 3. Individuals who test high on these are \nlikely  to  be  experiencing  a  mild  to  moderate  level  of  emotional \ndistress   characterized   by   dysphoria,   worrying,   and   anhedonia. \nThey  frequently  worry  about  something.  They  feel  inadequate, \nhelpless, and insecure. They are easily hurt by criticism or scolding \nand   have   difficulty   expressing   their   feelings.   They   are   over \ncontrolled   and   fearful   of   losing   control.   They   are   likely   to \nexperience increases in depression, fatigue, and physical symptoms \nin response to stress. They are likely to express their anger overtly. \nThey  have  concentration  difficulties  and  memory  problems.  They \nhave  low  self-esteem,  lack  self-confidence,  and  are  self-doubting. \nTheir  judgment  is  not  as  good  now  as  it  was  in  the  past.  They \nsometimes think they are about to “go to pieces.” \n \nThe  Paindex  was  calculated  on  this  patient,  from  her  MMPI-2 \nscores.  Her  total,  19,  exceeds  the  cut  off  associated  with  good \nprognosis  (13).  Patients  scoring  in  this  elevated  range  are  poor \ncandidates for pain reduction after a “surgical” intervention. The \nPaindex  accurately  identifies  87%  of  patients  who  are  likely  to \nshow a significant reduction in pain complaints after surgery. \n \n The  claimant  was  seen  for  a  “behavioral  assessment”  on  May  28,  2024,  by  Juan \nValenzuela,  LCSW,  at  Advantage  Point  Behavioral.  The  claimant  testified  that  this  evaluation \nwas recommended by Dr. Miedema. Following is a portion from the report of that assessment: \nPATIENT BEHAVIORAL ASSESSMENT SCORES \n \nNIDA  SCREEN:  This  screening  is  composed  of  four  distinct \ncategories:   Alcohol   use,   Tobacco   use,   Illegal   Drugs   use   and \nPrescription Drugs for non-medical reasons use over the past year. \nThe  patient  reports  NO  to  use  of  any  substances  or  prescription \ndrug  use  for  non-medical  reasons  which  reinforces abstinence. \nThere  are  no  known  addictions  reported.  I  do  not  see  any  factors \nthat would hinder the success of a spinal cord stimulator. \n \n\nBerry – H302325 \n \n-8- \nCHRONIC    PAIN    ASSESSMENT    QUESTIONNAIRE:    This \nquestionnaire  assesses  the  two  parts  of  chronic  pain  that  change \nover  time:  Persistent  Baseline  Pain  and  Breakthrough  Pain.  The \npatient rated their  baseline  pain  as:  8,  Severe  pain.  The  patient \nreports  feeling  this  pain  in  the  following  areas:  right  knee.  The \npatient  reports  that  the  pain  feels  like:  burning  and  hurting.  The \npatient  rates  their  breakthrough  pain  as:  0.  The  patient  reports \nfeeling  this  pain  in  the  following  areas:  N/A.  The  patient  reports \nthat  the  pain  feels  like:  N/A.  I  do  not  see  any  factors  that  would \nhinder the success of a spinal cord stimulator. \n \nPHQ-9 ASSESSMENT: The patient’s PHQ-9  score  is:  eighteen \nwhich indicates the level of the patient’s depression severity. The \nlevel  of  depression  severity  of  this  patient  is  moderately  severe.  I \ndo  not  see  any  factors  that  would  hinder  the  success  of  a  spinal \ncord stimulator. \n \nDepression, Anxiety and Stress Scale (DASS-21): the DASS-21 is \ncomposed   of   21   questions.   The   patient   scored   a   20   on   the \ndepression scale. This is in the moderate range. The patient scored \na  4  on  the  anxiety  scale.  This  is  in  the  normal  range.  The  patient \nscored  a  16  on  the  stress  scale.  This  is  in  the  mild  range.  I  do  not \nsee  any  factors  that  would  hinder  the  success  of  a  spinal  cord \nstimulator. \n \nPAIN  CATASTROPHIZING  SCALE:  This  scale  consists  of  13 \nitems  across  through  subscales.  The  patient  scored  a:  31  which \ndoes indicate a clinically relevant level of catastrophizing. \n \n*** \nRecommendations: Alisha Berry’s mental health history suggests \nthat  she  is  a  good  spinal  cord  stimulator  candidate.  The  patient \nindicates that she has been adequately informed regarding the risks \nof,   the   benefits   of,   the   alternatives   to,   and   the   potential \ncomplications  of  the  procedure.  The  patient  asserts  that  she  has \nmade an informed decision. The patient professes reasonable post-\nprocedural  expectations  and  describes  reliable  relationships  that \nwill   support   her   in   her   journey   to   reduce   chronic   pain. \nArrangements  for  post-operative  care  and  assistance  have  been \nmade. \n \nI SEE NO SIGNIFICANT PSYCHOLOGICAL FACTORS THAT \nWOULD   HINDER   THE   SUCCESS   OF   A   SPINAL   CORD \nSTIMULATOR. I AFFIRM THAT ALISHA BERRY IS A GOOD \nCANDIDATE FOR A SPINAL CORD STIMULATOR. \n\nBerry – H302325 \n \n-9- \n \n On July 11, 2024, the claimant was again seen by Dr. Miedema. Following is a portion of \nthat report: \n3. Complex regional pain syndrome type 1 –  \nRight  lower  extremity  CRPS  type  1  after  a  fall  and  subsequent \nbony  contusion.  The  patient  qualifies  for  diagnosis  of  Complex \nRegional  Pain  Syndrome  (CRPS)  Type  1  based  on  the  Budapest \ncriteria  presenting  symptoms  of  allodynia  &  hyperalgesia,  with \nassociated  vasomotor/sudomotor  changes.  She  saw  Dr.  Coker  for \nthe  knee  and  there  is  no  surgical  indication  at  this  time.  She  has \nbeen   doing   PT   with   significant   ongoing   pain   and   functional \nlimitation.  She  cannot  bear  weight  on  her  right  leg  and  has \ncontinued to ambulate with crutches. \n \nShe  is  s/p  lumbar  sympathetic  nerve  blocks  on  7/3/23  and  8/3/23 \nwith  temporary  relief  after  each  injection  which  is  helpful  for \ndiagnosis purposes to confirm the diagnosis of CRPS. \n \nShe  can  continue  pregabalin  100  mg  twice  per  day.  Celebrex  200 \nmg  once  per  day,  and  baclofen  10  mg  3  times  per  day  as  needed. \nAll  of  these  medications  are  specifically to  treat neuropathic  pain \nfrom complex regional pain syndrome. \n \nIn  the  setting  of  CRPS  and  failure  to  improve  with  appropriate \nconservative   treatments   I still think   neuromodulation   is   the \nappropriate next step in her care. She had an Independent Medical \nEvaluation that was done with Dr. Chris Dougherty. Unfortunately \nher  insurance  denied  the  spinal  cord  stimulator.  This  is  certainly \nfrustrating  since  she  has  ongoing  symptoms  of  CRPS  and  has  not \nimproved  with  appropriate  conservative  treatments.  I  am  not  sure \nwhy  they  denied  the  spinal  cord  stimulator.  I  therefore  think  it  is \nreasonable to try repeat lumbar sympathetic block to see if we can \nreinstate some pain relief. \n \nIn the meantime, I also think it is reasonable for her to try aquatic \ntherapy  for  strengthening,  stabilization  and  desensitization  in  the \nsetting of complex regional pain syndrome. \n \nShe  is  approaching  maximum  medical  improvement.  She  will \ncertainly  have  a  permanent  impairment  as  a  result  of  this  injury \nhowever    and    will    require    ongoing    treatment    including – \npharmacotherapy  with  Celebrex,  baclofen  and  Lyrica.  6  weeks  of \nphysical  therapy  per  year  and  up  to  4  lumbar  sympathetic  blocks \n\nBerry – H302325 \n \n-10- \nper  year.  These  treatments  would  be  indefinite  since  complex \nregional  pain  syndrome  is  not  curable.  This  is  one  reason  why \nthink spinal cord stimulation would also be a good alternative. \n \nWe will get her set up with a lumbar sympathetic block. \n \nI will follow-up with her after this procedure reassess her progress \nG90.521: Complex regional pain syndrome 1 of right lower limb \n \n On August 7, 2024, the claimant was again seen by Dr. Miedema. Following is a portion \nof that report: \nAssessment/Plan \nODI 37 Completely Disabled \n \n1. Pain of the right knee joint –  \nMrs. Berry presents for follow-up evaluation of over a 1 year right \nknee pain. To review she had a fall at work in March 2023 which \nprecipitated   her   symptoms.   She   has   tried   physical   therapy, \nexercising   at   home,   pharmacotherapy   and   injections   without \nsustained  relief.  She  is  here  to  review  treatment  options.  She  has \nhad worsening pain. \n \nTo review MRI of the right knee at Ozark on 5/22/2023 showed a \ncontusion of the anterior medial tibial condyle. Lumbar MRI taken \nat  Prime  Medical  Imaging  on  9/12/23  showed  mild  degenerative \nchanges of the lumbar spine. No neural compression at any level. \nM25.561: Pain in right knee \n \n2. Chronic pain syndrome –  \nChronic   pain   syndrome   secondary   to   complex   regional   pain \nsyndrome type 1 in the right lower extremity. \nG89.4: Chronic pain syndrome \n \n3. Complex regional pain syndrome type 1 –  \nRight  lower  extremity  CRPS  type  1  after  a  fall  and  subsequent \nbony  contusion.  She  had  a  work  injury  as  a  direct  result  of  her \ncurrent symptoms. \n \nShe  qualifies  for  diagnosis  of  Complex  Regional  Pain  Syndrome \n(CRPS)   Type   1   based   on   the   Budapest   criteria   presenting \nsymptoms    of    allodynia    &    hyperalgesia,    with    associated \nvasomotor/sudomotor  changes.  She  saw  Dr.  Coker  for  the  knee \nand there is no surgical indication at this time. She has been doing \n\nBerry – H302325 \n \n-11- \nPT  with  significant  ongoing  pain  and  functional  limitation.  She \ncannot bear weight on the right leg and has continued to ambulate \nwith crutches. \n \nShe  is  s/p  lumbar  sympathetic  nerve  blocks  on  7/3/23  and  8/3/23 \nwith  temporary  relief  after  each  injection  with  is  helpful  for \ndiagnostic purposes to confirm the diagnosis for CRPS. \n \nI would recommend she continue pregabalin 100 mg twice per day \nfor  neuropathic  pain,  Celebrex  200  mg  one  per  day  as  an  anti-\ninflammatory, and baclofen 10 mg 3 times per day as needed. All \nof these medications are specifically to treat neuropathic pain from \ncomplex regional pain syndrome. \n \nIn  the  setting  of  CRPS  and  failure  to  improve  with  appropriate \nconservation   treatments   I   still   think   neuromodulation   is   the \nappropriate next step in her care. She had an Independent Medical \nEvaluation  that  was  done  with  Dr.  Chris  Dougherty – he  agreed \nwith  the  diagnosis  of  CRPS  and  recommendation  for  spinal  cord \nstimulation. \n \nUnfortunately her insurance denied the spinal cord stimulator. Her \ninsurance  also  denied  ongoing  therapy,  aquatic  therapy  and  a  trial \nof   a   repeat   lumbar   sympathetic   block.   The   therapy   is   for \ndesensitization  in  the  setting  of  CRPS.  The  lumbar  sympathetic \nblock is for the treatment of pain. \n \nDenial  of  care  certainly  delays  treatment  and  perpetuates  pain  in \nthe setting of complex regional pain syndrome. \n \nShe is approaching maximum medical improvement. As mentioned \npreviously  she  have  a  permanent  impairment  as  a  result  of  this \ninjury and require ongoing treatments including – \npharmacotherapy  with  Celebrex,  baclofen  and  Lyrica.  6  weeks  of \nphysical  therapy  per  year  and  up  to  4  lumbar  sympathetic  blocks \nper  year.  These  treatments  would  be  indefinite  since  complex \nregional pain syndrome is not curable. \n \nI  think  a  functional  capacity  evaluation  would  be  helpful  to \ndetermine her permanent work restrictions. For now I do not think \nshe  has  reached  maximum  medical  improvement.  She  may  not \nreturn to work. \n \nI will follow-up with her after the functional capacity evaluation. \nG80.521: Complex regional pain syndrome 1 of right lower limb \n\nBerry – H302325 \n \n-12- \n \n Dr. Miedema authored a letter to “To Whom It May Concern” regarding the claimant’s \ncourse  of  treatment  and  his  recommendations.  Dr.  Miedema  also, in  part, discussed  the \npsychological evaluations of the claimant. The letter is undated but given the content and context \nof the letter it was clearly written sometime after the claimant’s August 2024 visit with Dr. \nMiedema. The body of that letter follows: \nAs  you  may  know  Mrs.  Berry  has  been  under  my  care  since  our \ninitial  evaluation  on  6/14/2023.  She  has  documented  complex \nregional pain syndrome (CRPS) type 1 of the right lower extremity \nfollowing a work related injury. \n \nWhen   she   failed   to   improve   with   appropriate   conservative \ntreatments (physical therapy, home directed exercises, \npharmacotherapy and lumbar sympathetic blocks) over the past 12 \nmonths  I  recommended  a  trial  of  spinal  cord  stimulation  as  the \nappropriate next step in her care. \n \nUnfortunately this modality was denied by her insurance. She had \nan  Independent  Medical  Evaluation  in  which  the  Independent \nphysician   also   recommended   spinal   cord   stimulation   for   the \ntreatment  of  CRPS.  As  you  mentioned,  she  had  neuropsychology \nevaluation  in  preparation  for  a  trial  spinal  cord  stimulation.  She \nhad an evaluation on 5/28/24 which indicated she would be a good \ncandidate  for  spinal  cord  stimulation.  She  had  an  evaluation  on \n4/22/24  which  indicated  she  would  not  be  a  good  candidate.  This \nevaluation seemed to be more focused on surgery rather than spinal \ncord stimulation specifically. \n \nWhen  we  use  spinal  cord  stimulation  in  the  treatment  of  chronic \npain   and   in   this   case   CRPS   specifically   we   first   do   a   trial \nprocedure.  The  trial  procedure  is  not  a  surgery  but  rather  an \noutpatient   procedure   done   under   local   anesthetic   and   mild \nintravenous  sedation. It  involves  percutaneously  inserting  spinal \ncord  stimulator  leads  within  the  epidural  space  to  help  modulate \npain  in  the  setting  of  CRPS.  The  trial  procedure  lasts  for  1  week. \nDuring this time the patient wears the devise externally to see if it \nis   helpful.   One   week   after   the   trial   procedure   the   leads   are \nremoved.  If  the  trial  procedure  is  successful  then  they  undergo \npermanent placement of the system. This is a surgery to internalize \nthe  system.  It  is  not  a  surgery  to  treat  an  anatomic  problem  but \n\nBerry – H302325 \n \n-13- \nrather  a  pain  problem.  It  is  an  outpatient  surgery  which  involves \nimplanting  the  leads  underneath  the  skin  and  tunneling  them  to \nconnect with a battery. \n \nI hope this helps clarify some of your questions. Do not hesitate to \ncontact me with any further questions. Thank you for allowing me \nto participate in the care of this patient. \n \n The claimant has asked the Commission to determine whether she is entitled to additional \nmedical treatment in the  form of  a trial spinal  cord stimulator and prescription medications and \nrecommended by Dr. Miedema. In order to prove her entitlement to additional medical treatment \nthe claimant must prove that the treatment is reasonable and necessary medical treatment for her \ncompensable right knee injury.  \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n Dr.  Miedema  clearly  believes  the  claimant  should  undergo  a  trial  spinal  cord  stimulator \nand have the medications he prescribed. Dr. Miedema’s opinion is supported by Dr. Dougherty \nto whom the respondent sent the claimant for a second opinion. Dr. Back, who administered the \nMMPI-2 test to the claimant, did not recommend the spinal cord stimulator, stating in his report \n“A spinal chord stimulator is not recommended for this patient.” I note that Dr. Back’s report \nrecommendations   do   not   seem   to   distinguish   the   fact   that   the   claimant   has   not   been \nrecommended for a spinal cord stimulator, only a trial of a spinal cord stimulator. That trial will \n\nBerry – H302325 \n \n-14- \ndetermine if a spinal cord stimulator can provide the claimant relief from her compensable right \nknee injury symptomology. Dr. Miedema, in his undated letter, addresses Dr. Back’s evaluation \nas follows, “This evaluation seemed to be more focused on surgery rather than spinal cord \nstimulation specifically.” \n The claimant’s second psychological evaluation, which appears to have been done via \nvideo by a state licensed counselor, found the claimant to be a good candidate. That report also \nfails to consider the trial nature of the requested treatment.  \n Given  all  the  evidence  before  the  Commission,  I  find  that  the  medical  evidence  and \nopinions  from  Dr.  Miedema,  Dr.  Dougherty,  and  the  state  licensed  counselor  outweigh  the \nconcerns  and  opinion  of  Dr.  Back.  The  claimant  is  able  to  prove  by  a preponderance  of  the \nevidence  the  trial  spinal  cord  stimulator  and  medications  prescribed  by  Dr.  Miedema  are \nreasonable and necessary medical treatment for her compensable right knee injury. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJuly  15,  2024,  and  contained  in  an  Amended Pre-hearing  Order  filed September  25,  2024,  are \nhereby accepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nadditional  medical  treatment  in  the  form  of  a  trial  spinal  cord  stimulator  and  prescription \nmedications as recommended by Dr. Miedema. \n\nBerry – H302325 \n \n-15- \n \n \n ORDER \nThe  respondents  shall  pay  the  cost  associated  with  the  claimant’s  trial  spinal  cord \nstimulator  and  the  cost  of  the  prescription  medications  recommended  by  Dr.  Miedema  for  her \ncompensable right knee injury. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":32307,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H302325 ALISHA BERRY, Employee CLAIMANT HOME HELPERS OF NWA, Employer RESPONDENT AMTRUST NORTH AMERICA, Carrier RESPONDENT OPINION FILED DECEMBER 17, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claim...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["knee","lumbar","back"],"fetchedAt":"2026-05-19T22:45:35.402Z"},{"id":"alj-H207056-2024-12-17","awccNumber":"H207056","decisionDate":"2024-12-17","decisionYear":2024,"opinionType":"alj","claimantName":"Darius Graydon","employerName":"University Of Arkansas At Pine Bluff","title":"GRAYDON VS. UNIVERSITY OF ARKANSAS AT PINE BLUFF AWCC# H207056 December 17, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GRAYDON_DARIUS_S_H207056_20241217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRAYDON_DARIUS_S_H207056_20241217.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H207056 \n \nDARIUS S. GRAYDON, EMPLOYEE       CLAIMANT \n \nUNIVERSITY OF ARKANSAS  \nAT PINE BLUFF, EMPLOYER                   RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/TPA                        RESPONDENT \n  \n \n \nOPINION FILED 17 DECEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 12 December 2024 in Pine Bluff, Arkansas. \n \nMr. Charles R. Padgham waived his appearance for the claimant. \n \nMs. Charles H. McLemore appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 12 December 2024. This case relates to an alleged workplace injury \nsustained on or about 7 September 2022. A First Report of Injury was filed by the \nrespondents on 31 October 2022, and A Form AR-2 was filed the following day, noting that \nthe claim was denied for a lack of objective medical findings. Prior to those filings, a Form \nAR-C was filed by the claimant, through counsel, on 30 September 2022 claiming injuries to \nthe claimant’s right hip, leg, and ankle. See Respondents’ Exhibit No 1. \n The respondents filed a Motion to Dismiss for Failure to Prosecute on 19 September \n2024, citing the applicable statute and rule. In a letter dated 24 September 2024, the \nclaimant advised that he did not object to the respondents’ motion for dismissal. Id. \n\nD. GRAYDON- H207056 \n2 \n \nThe respondents appeared on 12 December 2024, presented their motion, and \noffered supporting evidence into the record. As argued by the respondents at the hearing, \nthe file reflects no request for a hearing on a claim in the relevant time preceding the filing \nof their motion. And the claimant does not object to the dismissal of this claim.  \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2534,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H207056 DARIUS S. GRAYDON, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS AT PINE BLUFF, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED 17 DECEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Ad...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2","denied:1"],"injuryKeywords":["hip","ankle"],"fetchedAt":"2026-05-19T22:45:37.530Z"},{"id":"alj-H201744-2024-12-17","awccNumber":"H201744","decisionDate":"2024-12-17","decisionYear":2024,"opinionType":"alj","claimantName":"Willis Lewis","employerName":"Central Maloney, Inc","title":"LEWIS VS. CENTRAL MALONEY, INC. AWCC# H201744 December 17, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LEWIS_WILLIS_L_H201744_20241217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LEWIS_WILLIS_L_H201744_20241217.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H201744 \n \nWILLIE L. LEWIS, EMPLOYEE        CLAIMANT \n \nCENTRAL MALONEY, INC.,  \nSELF-INSURED EMPLOYER                   RESPONDENT \n \nRISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR                RESPONDENT \n  \n \n \nOPINION FILED 17 DECEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 11 December 2024 in Little Rock, Arkansas. \n \nMs. Sheila F. Campbell waived her appearance for the claimant. \n \nWorley, Wood & Parrish, P.A., Mr. Jarrod Parrish, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 11 December 2024. This case relates to an alleged workplace injury \nsustained on or about 25 October 2021. A First Report of Injury was filed by the \nrespondents on 9 March 2022, and A Form AR-2 was filed the same day, denying the claim. \nPrior to those filings, a Form AR-C was filed by the claimant on 28 February 2022 claiming \ninjuries to the claimant’s back. See Respondents’ Exhibit No 1. \n The respondents filed a Motion to Dismiss for Failure to Prosecute on 17 September \n2024, citing the applicable statute and rule. In email correspondence dated 2 December \n2024, the claimant advised that he did not object to the respondents’ motion for dismissal \nand waived his appearance at the hearing. Id. \n\nW. LEWIS- H201744 \n2 \n \nThe respondents appeared on 11 December 2024, presented their motion, and \noffered supporting evidence into the record. As argued by the respondents at the hearing, \nthe file reflects no request for a hearing on a claim in the relevant time preceding the filing \nof their motion. And the claimant does not object to the dismissal of this claim.  \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2502,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H201744 WILLIE L. LEWIS, EMPLOYEE CLAIMANT CENTRAL MALONEY, INC., SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED 17 DECEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:45:39.664Z"},{"id":"alj-H301869-2024-12-17","awccNumber":"H301869","decisionDate":"2024-12-17","decisionYear":2024,"opinionType":"alj","claimantName":"Sharon Simpson","employerName":"St. Vincent Infirmary Medical Center","title":"SIMPSON VS. ST. VINCENT INFIRMARY MEDICAL CENTER AWCC# H301869 December 17, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SIMPSON_SHARON_C_H301869_20241217.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SIMPSON_SHARON_C_H301869_20241217.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H301869 \n \nSHARON SIMPSON, EMPLOYEE       CLAIMANT \n \nST. VINCENT INFIRMARY MEDICAL CENTER,  \nEMPLOYER,                       RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA, CARRIER/ \nSEDGWICK CLAIMS MANAGEMENT, TPA            RESPONDENT \n  \n \n \nOPINION FILED 17 DECEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 11 December 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nThe Ryburn Law Firm, Mr. Jason Ryburn, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 11 December 2024. This case relates to an alleged workplace injury \nsustained on or about 16 March 2023. A First Report of Injury was filed by the respondents \non 21 March 2023, and A Form AR-2 was filed the following day, controverting a right \nshoulder injury as pre-existing. A Form AR-C was eventually filed by the claimant, through \ncounsel, on 18 July 2023 claiming injuries to the claimant’s shoulder. The claimant’s \ncounsel subsequently sought to withdraw from the matter, and that motion was granted by \nan Order from the Full Commission dated 30 August 2024. \n The respondents filed a Motion to Dismiss for Failure to Prosecute on 23 October \n2024, citing the applicable statute and rule. The respondents appeared on 11 December \n2024, presented their motion, and offered supporting evidence into the record. As argued by \n\nS. Simpson- H301869 \n2 \n \nthe respondents at the hearing, the file reflects no request for a hearing on a claim in the \nrelevant time preceding the filing of their motion. The claimant did not appear to resist the \ndismissal of her claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2485,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H301869 SHARON SIMPSON, EMPLOYEE CLAIMANT ST. VINCENT INFIRMARY MEDICAL CENTER, EMPLOYER, RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA, CARRIER/ SEDGWICK CLAIMS MANAGEMENT, TPA RESPONDENT OPINION FILED 17 DECEMBER 2024 Heard before Arkansas Workers’ Co...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:45:41.789Z"},{"id":"full_commission-H108811-2024-12-16","awccNumber":"H108811","decisionDate":"2024-12-16","decisionYear":2024,"opinionType":"full_commission","claimantName":"Julie Revels","employerName":"Magnet Cove Elementary School","title":"REVELS VS. MAGNET COVE ELEMENTARY SCHOOL AWCC# H108811 December 16, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Revels_Julie_H108811_20241216.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Revels_Julie_H108811_20241216.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H108811 \n \nJULIE REVELS, \nEMPLOYEE \n \nCLAIMANT \nMAGNET COVE ELEMENTARY SCHOOL,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSOCIATION \nWORKERS’ COMPENSATION TRUST, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED DECEMBER 16, 2024  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nJuly 16, 2024.  The administrative law judge found that the claimant proved \nshe sustained an 11% permanent anatomical impairment rating.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant proved she sustained permanent anatomical impairment in the \namount of 11%.   \nI. HISTORY \n Julie Ann Revels, now age 58, testified that she had been employed \nwith the respondents, Magnet Cove School District, for 21 years.  The \n\nREVELS - H108811  2\n  \n \n \nparties stipulated that the employment relationship existed at all pertinent \ntimes, including September 21, 2021.  The claimant testified that she \nslipped in a “water bottle spill” and that she “fell completely on my \nshoulder.”  The parties stipulated that the claimant “sustained an admittedly \ncompensable injury to her right shoulder” on September 21, 2021. \n An MRI of the claimant’s right shoulder was taken on September 23, \n2021 with the following impression: \n1. Large full-thickness tears of the supra and infraspinatus as \ndetailed above.   \n2. There is tendinosis and tenosynovitis of the long head \nbiceps tendon with intact anchor.   \n3. There is no grossly detached labral tear on this \nconventional exam. \n4. Focal bone bruise/contusion involving the greater tubercle \nwithout acute displaced fracture or cortical depression.  \nHumeral head remains well aligned across the glenoid \nfossa. \n5. There is mild active osteoarthritis across the AC joint \nwithout diastases.   \n \n Dr. Christopher M. Young noted on October 7, 2021:  “Julie Revels is \nhere for complaints of right 8/10 shoulder pain that has been going on since \n09/21/2021.  This is a work comp injury that happened while walking into \nthe classroom and slipping and falling landing on her right arm....MRI done \nprior to appointment shows right full thickness rotator cuff tear....After \ndiscussion, due to her increasing pain and weakness, we plan to proceed \nwith right shoulder open rotator cuff repair.  With this being [an] acute injury \n\nREVELS - H108811  3\n  \n \n \nand having a full thickness rotator cuff tear it is best to get this fixed in a \ntimely manner.” \n Dr. Young performed surgery on October 29, 2021:  “Diagnostic right \nshoulder arthroscopy with open Right rotator cuff repair.”  The pre- and \npost-operative diagnosis was “Rotator cuff tear right shoulder, documented \nwith MRI and unresponsive to conservative care.”   \n The claimant was provided treatment at Malvern Physical Therapy \nfollowing surgery, and she was discharged from Malvern Physical Therapy \non October 25, 2022.   \n The claimant participated in a Functional Capacity Evaluation on \nDecember 21, 2022:  “The results of this evaluation indicate that a reliable \neffort was put forth, with 50 of 50 consistency measures within expected \nlimits....Ms. Revels completed functional testing on this date with reliable \nresults.  Overall, Ms. Revels demonstrated the ability to perform work in the \nLIGHT classification of work[.]”   \n Casey Garretson, Occupational Therapist, Functional Testing \nCenters, Inc., provided an “IMPAIRMENT EVALUATION SUMMARY – \nUpper Extremity” on December 21, 2022: \nMs. Revels reports injury at work when she slipped and fell on \nwet floor, and she landed on her right shoulder resulting in the \nimmediate onset of right shoulder pain.... \nThere is no noted atrophy of the Right shoulder girdle.  There \nis no popeye deformity or other abnormalities in the muscle \nbulk or any asymmetrical bony defects observed of the Right \n\nREVELS - H108811  4\n  \n \n \nbicep or shoulder region.  Sensation was intact and normal \nthroughout the Right upper extremity.  The Contralateral UE \nhad full motion.  Right elbow and wrist PROM was within \nnormal limits.  Passive ROM values did mildly exceed AROM \nmeasurement values.  The patients’ pain was not taken into \naccount to determine this Impairment Rating.  No other \nratable finding was found related to the Right UE.   \n \n Casey Garretson assigned the rating, “Right Upper Extremity:  9% \nUpper Extremity Impairment 5% Whole Person Impairment (Table 3).”      \n Dr. Young noted on March 2, 2023: \nThe patient is here for evaluation of right shoulder.  She \nunderwent FCE for evaluation after her injury to determine \nwhat she was capable of doing and what her disability rating \nwas.  I calculated all of her FCE numbers with the occasional \nbimanual lifting up to 30 pounds, the unilateral lifting \nmaximum right upper extremity of 10 pounds.  She also had \ndemonstrated functional limited reaching of 5 pounds.  She \ncan only occasionally lift at the level of normal work day.  She \nwas unable to reach overhead.  Based on these figures, I was \nable to come up with an 18% upper extremity disability rating \nand an 11% whole person disability rating based on the \nguides to evaluation of permanent impairment of volume 4\nth\n \naddition (sic). \n \n The parties stipulated that “the claimant’s authorized physician \nassigned her a permanent anatomical impairment rating of 11% to the body \nas a whole.” \n Dr. Young reported on May 30, 2023: \nJulie A. Revels is here for a postoperative visit about 18 \nmonths out from a right rotator cuff repair.  Patient still has \nsome pain in her right shoulder.  Her ROM is still limited and \nstill cannot lift anything over her head.  She is limited with how \nmuch weight she can pick up with this arm, and there are \n\nREVELS - H108811  5\n  \n \n \nsome struggles she has at work being able to do her job \nproperly.... \nPatient is at MMI.  She underwent FCE for evaluation after her \ninjury to determine what she was capable of doing and what \nher disability rating was.  I calculated all of her FCE numbers \nwith the occasional bimanual lifting up to 30 pounds, the \nunilateral lifting maximum right upper extremity of 10 pounds.  \nShe also had demonstrated functional limited reaching of 5 \npounds.  She can only occasionally lift at the level of normal \nwork day.  She was unable to reach overhead.  Based on \nthese figures, I was able to come up with an 18% upper \nextremity disability rating and an 11% whole person disability \nrating based on the guides to evaluation of permanent \nimpairment 4\nth\n addition (sic).  At this time I will discharge her \nfrom my care.  She will follow up as needed.   \n \n Dr. Young noted in part on September 5, 2023: \nThe patient is here for followup from the functional testing \ncenter from Mountain Home, Arkansas for impairment rating \non her right shoulder.  They ended up with a different rating \n[than] I ended up with as a final impairment rating for the \nwhole body.  The patient reports that they didn’t measure \nanything or do any exercises pertaining to reaching overhead \nwhich is where her problem lies.... \nI do not have any reason to change my 11% whole person \nimpairment rating.  I am not going to go back and recalculate \nmy number because I standby (sic) the first number that I did.  \nI am not sure how they ended up at 5%.  I however ended up \nat 11% and I still support that.   \nIMPRESSION:  Right rotator cuff tear with now permanent \ndisability.  I calculated her permanent whole body disability \n11% according to the guides to partial permanent impairment, \nfourth edition.   \n \n Rick Byrd, “Certified Senior Disability Analyst” with Functional \nTesting Centers, Inc., provided an Impairment Rating Review on September \n14, 2023 and stated in part: \n\nREVELS - H108811  6\n  \n \n \nOn 05-30-2023, Dr. Young assigned Ms. Revels an 18% right \nUpper Extremity Impairment which is a (sic) 11% Whole \nPerson Impairment based on, “I calculated all of her FCE \nnumbers with the Occasional bimanual lifting up to 30 pounds, \nthe unilateral lifting maximum right upper extremity of 10 \npounds.  She also had demonstrated functional limited \nreaching of 5 pounds.  She can only occasionally lift at the \nlevel of normal workday.  She was unable to reach overhead.  \nBased on these figures, I was able to come up with an 18% \nupper Extremity disability rating and an 11% whole person \ndisability rating based on the guides to the evaluation of \npermanent impairment of volume 4\nth\n addition”. \n \nWith the above impairment, there is nothing in the 4\nth\n Edition \nGuides that allows for impairment based on pounds lifted or \nlimitations with functionally reaching overhead or with weight.  \nI can find not correlate (sic) the above rating with any table of \nthe Guides and obviously no table was listed to support Dr. \nYoung’s impairment rating of Ms. Revels.   \n \nAn Impairment rating was completed by Functional Testing \nCenters on 12-21-2022 using objectively measured PROM \nthat is outside the control of the patient with a finding of:  9% \nRight Upper Extremity Impairment, which is a 5% Whole \nPerson Impairment.  I do believe that this rating is the most \naccurate and objective rating as it is based off the 4\nth\n Edition \nGuides.   \n \n The parties stipulated that “the respondents have accepted and paid, \nor are in the process of paying, a permanent anatomical impairment rating \nof 5%.” \n The respondents’ attorney examined Rick Byrd at hearing: \nQ.  What did you do in order to evaluate the two different \nratings that are involved in this case?  We’ve got a 5% and an \n11%.   \nA.  So I went to the guides – 4\nth\n Edition Guides, and Dr. \nYoung had – and I quoted him in this letter where he said he’d \ncalculated it all from FCE numbers with occasional lifting of 30 \n\nREVELS - H108811  7\n  \n \n \npounds and 10 pounds with the right hand.  And then he said \n[as read], “Based on these figures, I calculated an 18% upper \nextremity impairment and an 11% whole person disability \nrating.”  And then he said, “... based on the guides.”  And I am \nvery familiar with the guides and there is nowhere in the \nguides where it allows for lifting to correlate with an \nimpairment.... \nQ.  So the 12-21 evaluation that was done, you reviewed in \ndetail the measurements and all of the activities that Mr. \nGarretson had Ms. Revels perform? \nA.  I did.  I went back and just made sure that the guides – \nthat the ratings, the individual numbers that were assessed \nwere the appropriate numbers for, like, flexion loss, extension \nloss, abduction loss, and it – and it did indeed add up to 9% of \nthe right upper extremity, which then using Table 3 is a 5% \nimpairment.... \n \n The claimant’s attorney cross-examined Rick Byrd: \n  Q.  Rick, you’re not a medical doctor. \n  A.  No, sir.... \n  Q.  Casey’s not a medical doctor. \n  A.  No, sir.   \nQ.  So we’re talking about the difference of opinion between \nthe orthopedic surgeon and your company, right? \nA.  I think we’re talking about the difference in the guides – in \ninterpretation of the guides and actually utilizing the guides, as \nopposed to a medical and a non-medical situation. \nQ.  And its interpretation of the guides, as you say, because \nDr. [Young] did, in fact, indicate that he relied upon the 4\nth\n \nEdition of the guides, right? \nA.  He did.   \n \n A pre-hearing order was filed on March 7, 2024.  According to the \ntext of the pre-hearing order, the claimant contended, “The claimant \ncontends she sustained admittedly compensable injuries to her right \nshoulder.  She contends her authorized, principal treating physician \nassigned her a permanent anatomical impairment rating of 11% BAW, and \n\nREVELS - H108811  8\n  \n \n \nshe is entitled to PPD benefits based on this 11% BAW rating.  She \ncontends the respondents have accepted and will pay only a 5% BAW \npermanent anatomical impairment rating.  The claimant contends the \nrespondents have controverted payment of PPD benefits commensurate \nwith the difference between the 11% BAW rating and the 5% BAW rating, \nwhich is 6% BAW and, therefore, her attorney is entitled to a controverted \nfee based on this amount (6% BAW).  Finally, the claimant’s attorney \nrespectfully requests the Commission order the respondents to deduct any \nattorney’s fees the claimant owes based on controverted benefits she may \nreceive by award or otherwise, and to pay his attorney’s fees by separate \ncheck payable directly to him.” \n The parties stipulated, “The respondents controvert only the \ndifference between the 11% BAW and five 5% BAW impairment ratings, \nwhich totals six percent 6% BAW.”  The respondents contended, “The \nrespondents contend they have accepted and paid all appropriate benefits \nrelated to the claimant’s September 21, 2021, compensable shoulder injury.  \nThe respondents contend they have accepted a 5% BAW permanent \nanatomical impairment rating, and that this 5% BAW rating is supported by \nthe AMA Guides, while the 11% rating is not supported by the AMA Guides.  \nThe respondents reserve the right to supplement their contentions and to \nassert any and all other applicable defenses and arguments upon the \n\nREVELS - H108811  9\n  \n \n \ncompletion of necessary investigation and discovery.  The respondents \nreserve any and all other issues for future determination and/or litigation.”   \n The parties agreed to litigate the following issues: \n1. Whether the claimant is entitled to PPD benefits \ncommensurate with the eleven percent 11% BAW, or the \nfive percent 5% BAW permanent anatomical impairment \nrating pursuant to the applicable American Medical \nAssociation Guides to the Evaluation of Permanent \nImpairment (AMA, 4\nth\n Edition 1993 (the AMA Guides). \n2. Whether and to what extent the claimant’s attorney is \nentitled to a controverted fee on these facts. \n3. The parties specifically reserve any and all other issues for \nfuture determination and/or litigation.   \n \n  A hearing was held on April 17, 2024.  The respondents’ attorney \nexamined Casey Garretson: \nQ.  It looks like you evaluated [the claimant] on December 21\nst\n \nof ’22.  Does that sound correct? \nA.  It sounds correct.... \nQ.  What measurements are done for a shoulder rating? \nA.  For an impairment rating? \nQ.  For an impairment rating, yes.   \nA.  We would take passive range of motion measurements.  \nSo the book has the guides on which measurements to do, so \neven in our report – in our impairment rating report we even \nhave pictures of exactly how we would take those \nmeasurements, so we’d have the person do forward flexion of \ntheir shoulder, and then we’d have them do extension, we’d  \nhave them do abduction, adduction, internal rotation, and \nexternal rotation.... \nQ.  When you say the book, just to clarify that is the AMA \nGuides 4\nth\n Edition? \nA.  Correct.  Yes.... \nQ.  Did you need to have her lift anything overhead to affect \nher rating in any way? \nA.  No.... \nQ.  You rely completely on passive measurements? \n\nREVELS - H108811  10\n  \n \n \nA.  Correct.  In her case there was no other ratable findings \nother than the passive range of motion.... \nQ.  You have issued a 5% rating associated with her shoulder \ninjury.  Is that right? \nA.  Correct.   \nQ.  Tell the judge, if you will, why you think that is the accurate \nrating. \nA.  I think you can look off kinda Rick’s response and, you \nknow, I would’ve said the exact same thing.  I would’ve said, \nyou know, we did that rating, the only objective measurements \nthat we were able to find were those passive range of motion \nmeasurements.... \nQ.  In your review of the records and the measurements \ntaken, is there anything that you have seen to support 11% \nbeing associated with this injury? \nA.  No.   \n \n The claimant’s attorney cross-examined Casey Garretson: \nQ.  You don’t have any information to the effect that Dr. \nYoung used active range of motion in order to determine his \nimpairment, correct? \nA.  Correct.   \n \n An administrative law judge filed an opinion on July 16, 2024.  The \nadministrative law judge found, among other things, that the claimant \nproved she was entitled to 11% permanent anatomical impairment.  The \nrespondents appeal to the Full Commission. \nII.  ADJUDICATION \n Permanent impairment is any functional or anatomical loss remaining \nafter the healing period has been reached.  Johnson v. Gen. Dynamics, 46 \nArk. App. 188, 878 S.W.2d 411 (1994).  The Commission has adopted the \nAmerican Medical Association Guides to the Evaluation of Permanent \n\nREVELS - H108811  11\n  \n \n \nImpairment (4\nth\n ed. 1993) to be used in assessing anatomical impairment.  \nSee Commission Rule 34; Ark. Code Ann. §11-9-522(g)(Repl. 2012).  It is \nthe Commission’s duty, using the Guides, to determine whether the \nclaimant has proved she is entitled to a permanent anatomical impairment.  \nPolk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).   \n Any determination of the existence or extent of physical impairment \nshall be supported by objective and measurable physical findings.  Ark. \nCode Ann. §11-9-704(c)(1)(B)(Repl. 2012).  Objective findings are those \nfindings which cannot come under the voluntary control of the patient.  Ark. \nCode Ann. §11-9-102(16)(A)(i)(Repl. 2012).  Although it is true that the \nlegislature has required medical evidence supported by objective findings to \nestablish a compensable injury, it does not follow that such evidence is \nrequired to establish each and every element of compensability.  Stephens \nTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  All that \nis required is that the medical evidence be supported by objective findings.  \nSingleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006).  \nMedical opinions addressing impairment must be stated within a reasonable \ndegree of medical certainty.  Ark. Code Ann. §11-9-102(16)(B)(Repl. 2012).   \n Permanent benefits shall be awarded only upon a determination that \nthe compensable injury was the major cause of the disability or impairment.  \nArk. Code Ann. §11-9-102(F)(ii)(a)(Repl. 2012).  “Major cause” means \n\nREVELS - H108811  12\n  \n \n \n“more than fifty percent (50%) of the cause,” and a finding of major cause \nshall be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(Repl. 2012).  Preponderance of the evidence \nmeans the evidence having greater weight or convincing force.  \nMetropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App.269, 101 S.W.3d \n252 (2003).   \n An administrative law judge found in the present matter, “2.  The \nclaimant has met her burden of proof in demonstrating she is entitled to an \nimpairment rating of 11% BAW – i.e., to additional PPD benefits based on \nthe 6% BAW difference in the two (2) subject ratings.”  The Full \nCommission finds that the claimant proved she sustained permanent \nanatomical impairment in the amount of 11%.   \n The parties stipulated that the claimant sustained a compensable \ninjury to her right shoulder on September 21, 2021.  An MRI of the \nclaimant’s right shoulder taken September 23, 2021 showed, among other \nthings, “large full-thickness tears of the supra and infraspinatus as detailed \nabove.”  Dr. Young began treating the claimant after the compensable injury \nand noted that she had sustained a “right full thickness rotator cuff tear.”  \nOn October 29, 2021, Dr. Young performed a “Diagnostic right shoulder \narthroscopy with open Right rotator cuff repair.”  The pre- and post-\n\nREVELS - H108811  13\n  \n \n \noperative diagnosis was “Rotator cuff tear right shoulder, documented with \nMRI and unresponsive to conservative care.”   \n Casey Garretson, an occupational therapist and part owner of \nFunctional Testing Centers, Inc., opined on December 21, 2022 that the \nclaimant had sustained a 5% whole-person impairment rating.  Mr. \nGarretson asserted that the 5% rating was based on “passive range of \nmotion” and the 4\nth\n Edition of the Guides to the Evaluation of Permanent \nImpairment.  However, Dr. Young opined on March 2, 2023 that the \nclaimant had sustained “an 11% whole person disability rating” in \naccordance with the 4\nth\n Edition of the Guides.  Dr. Young reiterated his \nexpert opinion on May 30, 2023 and September 5, 2023.   \n The respondents argue on appeal that the proper anatomical \nimpairment rating is 5% based on the calculations of Casey Garretson and \nRick Byrd with Functional Testing Centers, Inc.  The respondents contend \nthat Dr. Young did not properly reference the 4\nth\n Edition of the Guides in \nassessing 11% permanent anatomical impairment.  The Full Commission \nnotes that the Guides are “just that:  mere guides to aid the Commission in \nassessing the degree of a claimant’s disability as defined by statute and \ninterpreted by the courts.”  See Singleton v. City of Pine Bluff, 102 Ark. App. \n305, 285 S.W.3d 253 (2008).       \n\nREVELS - H108811  14\n  \n \n \n It is the Commission’s duty to translate the evidence of record into \nfindings of fact.  Gencorp Polymer Prods. v. Landers, 36 Ark. App. 190, 820 \nS.W.2d 475 (1991).  It is within the Commission’s province to weigh all of \nthe medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. App. 94, 989 S.W.2d 151 (1999).  In the \npresent matter, the Full Commission finds that Dr. Young’s assessment of \n11% permanent anatomical impairment is supported by the evidence of \nrecord and is more credible than the 5% rating suggested by the evaluators \nat Functional Testing Centers, Inc.  We reiterate that all that is required for \na valid impairment rating is that the medical evidence be supported by \nobjective findings.  See Stephens Truck Lines, supra.  There are supporting \nobjective medical findings of permanent impairment in the present matter, \nto include a documented full-thickness rotator cuff tear in the claimant’s \nright shoulder as a result of the compensable injury.  Dr. Young, the treating \nsurgeon, on three occasions assessed an 11% permanent anatomical \nimpairment rating.  Moreover, Dr. Young’s calculation of 18% upper \nextremity impairment, 11% whole person impairment is plainly supported by \nthe 4\nth\n Edition of the Guides at page 3/20, “Table 3.  Relationship of \nImpairment of the Upper Extremity to Impairment of the Whole Person.” \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved by a preponderance of the evidence that she \n\nREVELS - H108811  15\n  \n \n \nsustained permanent anatomical impairment in the amount of 11%.  The \nclaimant proved that the 11% rating assessed by Dr. Young was wholly \naccurate and was consistent with the American Medical Association Guides \nto the Evaluation of Permanent Impairment (4\nth\n ed. 1993).  The 11% rating \nwas supported by objective and measurable physical findings, to include a \nfull-thickness rotator cuff tear documented following the compensable \ninjury.  We find that Dr. Young’s conclusion that the claimant sustained 11% \npermanent anatomical impairment was stated within a reasonable degree of \nmedical certainty.  The claimant also proved that the September 21, 2021 \ncompensable injury was the major cause of the assessment of 11% \npermanent physical impairment.   \n The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  The claimant is \nentitled to a fee based on the amount of permanent anatomical impairment \ncontroverted by the respondents, 6%.  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012). \n \n \n \n\nREVELS - H108811  16\n  \n \n \n IT IS SO ORDERED.                 \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n I respectfully dissent from the majority opinion finding the claimant \nhas met her burden of proof in demonstrating she is entitled to an \nimpairment rating of eleven percent (11%) body as a whole.  \nThe claimant suffered an admittedly compensable injury when she \nslipped and fell, tearing her rotator cuff, on September 21, 2021.  In the \ncourse of her treatment, the claimant received two whole-body impairment \nratings – five percent (5%) provided by Functional Testing Centers, Inc., \nand eleven percent (11%) from her treating physician, Christopher Young. \n An administrative law judge was tasked with determining whether the \nclaimant was entitled to an eleven percent (11%) whole-person rating, or \nwhether she was limited to a five percent (5%) rating.  After a hearing, the \nALJ opined the claimant was entitled to the eleven percent (11%) rating \nassigned by Dr. Young. \n\nREVELS - H108811  17\n  \n \n \n \"Permanent impairment\" has been defined as \"any permanent \nfunctional or anatomical loss remaining after the healing period has ended.\" \nMain v. McGehee Metals, 2010 Ark. App. 585, 377 S.W.3d 506 (2010).  \nAny determination of the existence or extent of physical impairment must be \nsupported by objective and measurable findings.  Wayne Smith Trucking, \nInc. v. McWilliams, 2011 Ark. App. 414, 384 S.W.3d 561 (2011).  \"Objective \nfindings\" are those that cannot come under the voluntary control of the \npatient, and specifically exclude pain, straight-leg-raising tests, and range-\nof-motion tests.  Ark. Code Ann. § 11-9-102(16)(A); Vangilder v. Anchor \nPackaging, Inc., 2011 Ark. App. 240 (2011). \nAn injured employee is entitled to the payment of compensation for \nthe permanent functional or anatomical loss of use of the body as a whole \nwhether his earning capacity is diminished or not.  Johnson v. General \nDynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994).  \nPursuant to Ark. Code Ann. § 11-9-522(g)(1)(A), the Commission \nhas adopted the American Medical Association Guides to the Evaluation of \nPermanent Impairment (4th ed. 1993) (AMA Guides), to be used in the \nassessment of permanent anatomical impairment.  Greene v. Cockram \nConcrete Co., 2012 Ark. App. 691 (2012).  The Commission is authorized to \ndecide which portions of the medical evidence to credit and to translate this \nmedical evidence into a finding of permanent impairment using the AMA \n\nREVELS - H108811  18\n  \n \n \nGuides.  Id. \n In the present case, Claimant slipped and fell, injuring her right \nshoulder.  The claimant underwent a right shoulder arthroscopy and rotator \ncuff repair on October 29, 2021.  Claimant’s surgeon, Dr. Christopher \nYoung, ultimately assigned a whole-body impairment rating of eleven \npercent (11%) on May 30, 2023.  Dr. Young does not detail how he arrived \nat an eleven percent (11%) rating, but rather states his findings were \n“based on the guides.” \nIn contrast, Casey Garretson has a doctoral degree in occupational \ntherapy and is a co-owner of Functional Testing Centers, Inc.  He \ndetermined the claimant sustained a five percent (5%) permanent \nimpairment. This rating was supported by six pages of notes, references to \nthe Guides, and direct evaluation of the claimant.  Id.  Mr. Garretson is \ncertified to do ratings pursuant to the 4\nth\n, 5\nth\n and 6\nth\n editions of the AMA \nGuides.  \nAt the hearing, Mr. Garretson testified he met with the claimant on \nDecember 21, 2022, to conduct a Functional Capacity Evaluation and \nrating.  He did the rating portion of the testing at the beginning of the \nmeeting.  \nDuring testing, Mr. Garretson took active and passive measurements \nof the claimant’s abduction, adduction, internal rotation and external \n\nREVELS - H108811  19\n  \n \n \nrotation.  He took each of these measurements three times and used the \nhighest result of the three in his findings, because “our goal is to give the \npatient the greatest impairment that we can.”  The claimant gave very \nconsistent effort, which he testified resulted in 50 out of 50 measurements. \nMr. Garretson assigned a five percent (5%) rating and could not find any \nbasis in the Guides to arrive at the eleven percent (11%) rating assigned by \nDr. Young.  \nRick Byrd, co-owner of Functional Testing Centers, also testified at \nthe hearing.  He explained he is also certified to do ratings pursuant to the \n4\nth\n, 5\nth\n and 6\nth\n editions of the AMA Guides.  \nAt the hearing, Mr. Byrd went into detail as to why a five percent (5%) \nrating is supported by the AMA Guides: \nQ: What did you do in order to evaluate \nthe two different ratings that are \ninvolved in this case?  We’ve got a 5% \nand an 11%.  \n  \nA: So I went to the guides -- 4th Edition \nGuides, and Dr. Young had -- and I \nquoted him in this letter where he said \nhe’d calculated it all from FCE numbers \nwith occasional lifting of 30 pounds and \n10 pounds with the right hand. And \nthen he said [as read], “Based on these \nfigures, I calculated an 18% upper \nextremity impairment and an 11% \nwhole person disability rating.” And \nthen he said “...based on the guides.” \nAnd I am very familiar with the guides \nand there is nowhere in the guides \nwhere it allows for lifting to correlate \nwith an impairment.  \n  \n\nREVELS - H108811  20\n  \n \n \nThere is in the guides an allowment \n(sic) for muscle strength, but muscle \nstrength is also a subject of (sic) \nmeasure. Lots of times we do reviews \nand they’ve tested a person’s muscle -- \nand so you push – the therapist or \nevaluator will push on them and then \ngrade their muscle tone -- grade their \nmuscle strength, and so that’s \nsubjective; it’s under the control of the \npatient.  \n  \nSo even with the lifting, that’s \nsubjective. So even if it was in the \nguides, it would be -- it would still be a \nsubjective measure because Miss \nRevels was in control of how much she \nwas lifting, and so whether that’s 5 \npounds or 50 pounds -- but there’s \nnothing -- nowhere in the guides is it \nallowed that you just look up lifting or \ndo any calculations or anything like \nthat.  So there was no table of the \nguides of the 4th Edition that would \nallow that.  \n  \nAnd then we had done, we being \nCasey, -- Functional Testing Centers \nhad done an impairment on her after \nDr. Young had declared her M.M.I. and \nwe had done it using passive range of \nmotion of the shoulder, which is an \nobjective measurement.  \n  \nWe had also -- and I’ve reviewed that \nwhere we look all the different aspects \nof how you could possibly get a rating, \n‘cause there’s more than just range of \nmotion.  Some doctors get caught up \nand just always do the same rating on \ntheir -- you know, if they don’t have that \nrating, they don’t get a rating, and lots \nof times that’s wrong, ‘cause they \nmight have crepitation or they might \nhave a chronic instability of the \nshoulder or they might have swelling \nand there’s other ways to rate, and so \nwe would look at all those, of which \nCasey did in his report and determined \n\nREVELS - H108811  21\n  \n \n \nthat the way that gives her the highest \nrating would be passive range of \nmotion loss.  \n \nMr. Byrd went on to explain: \n \nQ: So the 12-21 evaluation that was done, \nyou reviewed in detail the \nmeasurements and all of the activities \nthat Mr. Garretson had Miss Revels \nperform?  \n  \nA: I did. I went back and just made sure \nthat the guides -- that the ratings, the \nindividual numbers that were assessed \nwere the appropriate numbers for, like, \nflexion loss, extension loss, abduction \nloss, and it -- and it did indeed add up to \n9% of the right upper extremity, which \nthen using Table 3 is a 5% impairment.  \n  \nI went back and tried to make sense out \nof Dr. Young’s and thought maybe he \nused active range of motion, and so we \nused our active range of motion \nnumbers and that -- that did increase \nher impairment, as it should, but it only \nincreased it to 11% of the upper \nextremity, so it didn’t get to the 18%.   \n  \nQ: Is active range of motion able to be \nconsidered under the AMA Guides 4th \nEdition for permanency?  \n  \nA: It is in the guides, but not according to \nArkansas law stating it needs to be \nobjective finding, so the guides \ndefinitely allow (sic) for it but not under \nArkansas’s objectivity indicator.  \n  \nFinally,  Mr.  Byrd  explained  why  the  December  21,  2022 \nimpairment rating was more accurate than Dr. Young’s May 2023 \nrating, stating the Functional Testing Center’s evaluation was: \ndefinitely out of the guides, and we’ve stated \nthat  tables  and  the  methodology  is  exactly  as \n\nREVELS - H108811  22\n  \n \n \nthe   guides   would   indicate.   Our   report   has \npictures  of  how  we  measured  and -- ‘cause \nthere are different ways you can measure and \nget  different  results,  and  so  we  used  the  way \nthe guides indicate to measure and we believe \nthey are accurate.  \n   \nThe record is clear.  Two highly qualified professionals were unable \nto reproduce Dr. Young’s findings of an eleven percent (11%) whole-body \nimpairment.  Mr. Byrd and Mr. Garretson performed extensive testing and \nresearch to assign the claimant a five percent (5%) rating and testified to \ntheir reasoning.  These same efforts are not found in Dr. Young’s records. \nDr. Young provided no indication of why or how he came to his conclusion \nbased on the Guides, and taking all records into account, his findings are \nunreliable.  For these reasons, we should rely on the assessment by Mr. \nByrd and Mr. Garretson and limit the claimant to a five percent (5%) \npermanent impairment rating.  \nThere is no proof in the record of the method used by Dr. Young to \ncalculate his rating other than his self-serving statement that he relied on \nthe Guides.  This is no proof he calculated the ratings correctly.  Without \nproof of how he calculated his rating it would be speculation for the \nCommission to accept it, just because he was the treating physician.  The \nonly proof in the record of a rating that was correctly and carefully \ncalculated was the five percent (5%) rating assessed by Functional Testing \nCenters, Inc.  The only reliable rating is the five percent (5%) rating.   \n\nREVELS - H108811  23\n  \n \n \nAccordingly, for the reasons set forth above, I must dissent. \n \n     \n                                                _______________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":34585,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H108811 JULIE REVELS, EMPLOYEE CLAIMANT MAGNET COVE ELEMENTARY SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WORKERS’ COMPENSATION TRUST, INSURANCE CARRIER/TPA RESPONDENT","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","fracture","rotator cuff","wrist","back"],"fetchedAt":"2026-05-19T22:29:44.751Z"},{"id":"alj-H400889-2024-12-16","awccNumber":"H400889","decisionDate":"2024-12-16","decisionYear":2024,"opinionType":"alj","claimantName":"Ricky Price","employerName":"Kirkpatrick Holdings, LLC","title":"PRICE VS. KIRKPATRICK HOLDINGS, LLC AWCC# H400889 December 16, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Price_Ricky_H400889_20241216.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Price_Ricky_H400889_20241216.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H400889 \n \n \nRICKY L. PRICE, DDS, EMPLOYEE CLAIMANT \n \nKIRKPATRICK HOLDINGS, LLC, \n EMPLOYER RESPONDENT \n \nCINCINNATI INDEMN. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED DECEMBER 16, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on December 13, 2024, \nin Forrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Karen  H.  McKinney,  Attorney  at  Law, Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on December 13, 2024, in \nForrest  City,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”),   forms,   pleadings,   and \ncorrespondence related to this claim, consisting of 29 pages. \n\nBROWN – H401705 \n \n2 \n \n The record shows the following procedural history: \n Per the First Report of Injury or Illness filed on February 6, 2024, Claimant \npurportedly  suffered  an injury  to  his head at  work  on November 27,  2023,  when \nhe stood up and struck a light fixture.  According to the Form AR-2 that was also \nfiled  on February  7,  2024,  Respondents controverted  the  claim on  the basis  that \nthe medical records “showed health issues that are not related to the work event.” \n On March 11,  2024, the  Commission received  a  handwritten  letter  from \nClaimant that reads in pertinent part: \nRe:  Claim Denial \n \nClaim #H400889 \nDOI:  11/27/23 \n \nPlease proceed with the appeal/hearing in the above referenced claim. \n \nThank you, \n \n/s/ Ricky L. Price DDS \n \nDr. Ricky L. Price \n \nHe responded to a questionnaire sent to him by the Commission’s Legal Advisor \nDivision.    Therein,  he  represented  that  while  the  amount  in  dispute  in  his  claim \nwas  in  excess  of  $2,500.00,  he  nonetheless  wanted  to  attempt  mediation.  \nRespondents’ counsel, however, informed the Commission that her clients were \nnot  willing  to  mediate  the  matter.    Because  of  the  failure  to  set  up  a  mediation \nconference, the Clerk of the Commission was requested to reassign the file to an \nadministrative law judge. \n\nBROWN – H401705 \n \n3 \n \n Per  this  request,  the  file  was  assigned  to  me  on  April  9,  2024.    I  issued \nprehearing  questionnaires  to  the  parties.    Claimant  filed  a  response  thereto  on \nMay  20, 2024;  and  Respondents  followed  suit  on  June 10, 2024.  Claimant  sent \nme  a  handwritten  letter  dated  June  11,  2024,  received  on  June  14,  2024,  that \nreads: \nMay   I   request   a   continuance   to   have   more   time   to   acquire \ndocuments  &  to  have  my  follow-up  visits  with  my  Neurologist  & \nCardiologist before proceeding.  Thank you. \n \nI interpreted this as a withdrawal of his hearing request, and returned his claim file \nto the Commission’s general files on June 14, 2024. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nSeptember 17, 2024.  On that date, Respondents filed the instant motion, asking \nfor  dismissal  of  the  claim under  AWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-\n702(a)(4) &  (d) (Repl.  2012) because Claimant (1) had not sought  a  hearing on \nhis claim in the preceding six months, and (2) had not responded to discovery that \nhad been propounded to him.  My office wrote Claimant on September 18, 2024, \nasking  for  a  response  to  the  motion within  20  days.   The  letter  was  sent  by  first \nclass and  certified mail  to the Wynne,  Arkansas address for Claimant that  was \nlisted  in  the  file  and  in  his  prehearing  questionnaire  response.  A “Regina Price” \nsigned for the certified letter on September 20, 2024; and the first-class letter was \nnot  returned.   Regardless,  no  response  from Claimant to  the  motion was \nforthcoming.    On October 11,  2024,  a  hearing  on  the Motion to Dismiss was \n\nBROWN – H401705 \n \n4 \n \nscheduled for December 13,  2024, at 10:30 a.m.  at  the St.  Francis  County \nCourthouse in Forrest  City.   The  notice  was  sent  to  Claimant  via  first-class  and \ncertified  mail to  the  same  address as  before.   In  this  instance, “Regina Price” \nclaimed the certified  letter on October  15,  2024;  and the first-class  letter was, \nagain, not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the foregoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n\nBROWN – H401705 \n \n5 \n \n4. The Motion  to Dismiss  is hereby  granted;  this claim for initial \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n No  Form  AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing  a \n“formal claim.”  While a Form AR-1 was filed in this case, that does not suffice to \ninstigate a claim.  I recognize, however, that other means exist to file a claim for \ninitial benefits other than a Form AR-C.  In Cook v. Southwestern Bell Telephone \nCompany,  21  Ark.  App.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of \n\nBROWN – H401705 \n \n6 \n \nAppeals  discussed  the  minimum  requirements  necessary  for  correspondence  to \nthe Commission to constitute a claim for additional compensation for the purpose \nof  tolling  the  applicable  Statute  of  Limitations.   There,  the court  held  that  an \nattorney's  correspondence  notifying  the  Commission  that he  has  been employed \nto assist a claimant in connection with unpaid benefits is sufficient to state a claim \nfor  additional  compensation  where  the  correspondence  also  lists  the  claimant's \nname, the employer's name and the Commission file number.  See also Garrett v. \nSears  Roebuck  and  Company,  43  Ark.  App.  37,  858  S.W.2d  146  (1993).    My \nreview of the Commission’s file discloses a document sufficient to constitute a \nclaim  for  initial  benefits  under Cook, supra.  That document is Claimant’s March \n11, 2024, hearing request—discussed above. \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it (including  appearing  at  the December 13,  2024, hearing  to  argue \nagainst its dismissal)  since he  withdrew  his  hearing  request on June  11,  2024.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause  of  this  finding,  the  argument  made  under § 11-9-702  will  not  be \naddressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \n\nBROWN – H401705 \n \n7 \n \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  with  prejudice.   But  based  on \nthe  foregoing,  I find  that  the  dismissal  of  this  claim  should  be  and  hereby  is \nentered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":9738,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H400889 RICKY L. PRICE, DDS, EMPLOYEE CLAIMANT KIRKPATRICK HOLDINGS, LLC, EMPLOYER RESPONDENT CINCINNATI INDEMN. CO., CARRIER RESPONDENT OPINION FILED DECEMBER 16, 2024 Hearing before Administrative Law Judge O. Milton Fine II on December 13, 2024, in Forrest...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:29.098Z"},{"id":"full_commission-G904652-2024-12-13","awccNumber":"G904652","decisionDate":"2024-12-13","decisionYear":2024,"opinionType":"full_commission","claimantName":"Nela Jikatake","employerName":"Cargill Meat Products","title":"JIKATAKE VS. CARGILL MEAT PRODUCTS AWCC# G904652 December 13, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Jikatake_Nela_G904652_20241213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Jikatake_Nela_G904652_20241213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G904652  \n \nNELA JIKATAKE, \nEMPLOYEE \n \nCLAIMANT \nCARGILL MEAT PRODUCTS,  \nEMPLOYER \n \nRESPONDENT \nSEDGWICK CLAIMS MANAGEMENT SVCS., INC, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED DECEMBER 13, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE R. SCOTT ZUERKER, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nSeptember 13, 2023.  The administrative law judge found that the claimant \nfailed to prove she was entitled to temporary total disability benefits from \nJune 21, 2022 through a date yet to be determined.  The administrative law \njudge found that the claimant proved she was entitled to temporary total \ndisability benefits from April 13, 2023 through April 19, 2023.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant proved she was entitled to temporary total disability benefits \n\nJIKATAKE - G904652  2\n  \n \n \nbeginning June 21, 2022 and continuing through a date yet to be \ndetermined.     \nI.  HISTORY \n The record indicates that Nela Jikatake, now age 54, became \nemployed with the respondents, Cargill, on October 19, 2015.  The \nclaimant’s Job Title was “Debone – Breast Trim.”  The parties stipulated \nthat the claimant “sustained a compensable injury to her left shoulder” on \nJune 11, 2019.  The claimant testified on direct examination:   \n  Q.  And what happened that day? \nA.  I was walking.  I hit my toe on a pallet, my feet on a pallet.  \nIt was broken and I tripped.... \nQ.  During that time after you fell, did you have any trouble \ndoing your work? \nA.  Yes. \nQ.  What caused you problems doing your work after you fell? \nA.  It was extreme pain and when I move it, it was just too \nmuch. \nQ.  Did you continue to work, though, up until you saw the \ndoctor? \nA.  Yes.     \n \n An MRI of the claimant’s left shoulder was taken in August 2019 with \nthe impression, “1.  Mild tendinosis of the rotator cuff.”  An MRI of the \nclaimant’s left shoulder was taken in September 2019 with the impression, \n“1.  Tendinopathy of the supraspinatus and infraspinatus.”   \nDr. John Heim reported on or about September 20, 2019, “WC new \npt with left shoulder pain from a fall on 06/11/2019.  Since the injury she has \nhad 6 visits of therapy but has not helped.  She also had MRI done and we \n\nJIKATAKE - G904652  3\n  \n \n \nhave images with report....She is not on work restrictions currently, she is \nno longer working.”  Dr. Heim assessed “1.  Adhesive capsulitis of left \nshoulder.”  Dr. Heim noted, “Nela is scheduled for shoulder surgery on \n09/23/2019.  She may return to work on 09/24/2019 with the following \nrestrictions:  no use of left arm for the next 2 weeks.”   \nDr. Heim performed surgery on September 23, 2019:  “Arthroscopy \nleft shoulder with lysis and resection of adhesions as well as manipulation \nunder anesthesia.”  The post-operative diagnosis was “Status post \narthroscopic adhesion lysis and manipulation under anesthesia left \nshoulder.”  The claimant testified that she did not benefit from surgery \nperformed by Dr. Heim.       \nThe claimant began treating with Dr. Christopher A. Arnold on \nJanuary 21, 2020.  Dr. Arnold assessed “Sprain of left rotator cuff \ncapsule[.]”  Dr. Arnold assessed the following Work Status:  “No lifting, \npushing or pulling greater than 25 lbs.  No repetitive overhead.”   \nDr. Arnold planned on February 4, 2020, “Your exam shows a \nprobable cuff tear and adhesive capsulitis.  We need to obtain an MRI to \nevaluate the extent of the tear and get a plan.”   \nAn MRI of the claimant’s left shoulder was taken on February 19, \n2020 with the following impression: \n1.  No rotator cuff tendon tear, tendon retraction, or muscle \natrophy. \n\nJIKATAKE - G904652  4\n  \n \n \n 2.  Intact biceps labral complex. \n3.  Very mild increased signal within the conjoined tendon of \nthe rotator cuff is present.  This may represent very minimal, \nresidual tendinosis but is much improved compared to \n9/6/2019.   \n \n Dr. Arnold performed a Joint Injection/Aspiration on March 3, 2020.  \nIt was noted on March 3, 2020, “She is no left arm duty.”  Dr. Arnold \nreported on April 7, 2020: \nHISTORY:  Nela Jikatake had a workers’ compensation injury.  \nShe had an arthroscopy and lysis of adhesions.  It offered no \nrelief.  She was seen in my office.  I thought she had findings \nconsistent with a high-grade partial tear of the cuff.  I gave her \na subacromial injection.  This offered no relief.... \nRADIOGRAPHS:  I reviewed her MRI.  She has a high-grade \npartial tear of the suprapinatus.   \nPLAN:  She has failed therapy, anti-inflammatories, \narthroscopy, and subacromial injection.  I think the next step \nwould be an arthroscopy and possible cuff repair.  I think it is \nreasonable, given the profound cuff weakness, her failure to \ntherapy, anti-inflammatories, injection, and arthroscopy and \nthe MRI findings.  At the current time, I would recommend \narthroscopy, possible cuff repair.  She agrees with this plan.  \nAt the current time, no left-handed duty until we get this \napproved.   \n \n Dr. Heim reported on May 13, 2020: \nI have reviewed Ms. Jikatake’s medical records again to offer \nyou my best assessment of her medical status based on my \nlast visit with her. \nThe claimant developed an adhesive capsulitis of her left \nshoulder resulting in arthroscopic adhesiolysis and \nmanipulation under anesthesia.  She received post-operative \nphysical therapy and despite inconsistent participation her \nresults were good.  She was released at MMI and was \nprovided an impairment rating on 10/30/19.  As often is the \ncase, with this diagnosis, patients rarely recover to their pre-\ninjury state.  This is the purpose of the impairment rating. \n\nJIKATAKE - G904652  5\n  \n \n \nIt is my medical opinion that Ms. Jikatake does not need \nfurther treatment or diagnostic studies which is why I released \nher at maximum medical improvement. \n \n A pre-hearing order was filed on March 31, 2021.  The parties \ncontended, “The claimant contends she is entitled to the additional medical \ntreatment as recommended by Dr. Chris Arnold.  Claimant reserves all \nother issues.  The respondents contend this claim was accepted as \ncompensable and benefits were paid.  Claimant was provided treatment for \nthis injury, which resulted in Dr. Heim performing an arthroscopic procedure \non her left shoulder.  She was released from his care at MMI on November \n30, 2019 with a 4% whole body impairment.  The rating was paid out to the \nclaimant via a check for $4500 in November of 2019.  Respondents \ncontend claimant’s voluntary resignation from employment with Cargill [on] \nJuly 16, 2019 results in claimant not being entitled to temporary total \ndisability benefits beyond those already paid.  Respondents have provided \nclaimant with all reasonably necessary evaluation and treatment and \nclaimant is not entitled to additional benefits.”   \n The parties agreed to litigate the following issue:  “1.  Claimant’s \nentitlement to additional medical treatment recommended by Dr. Arnold.”   \n A hearing was held on May 13, 2021.  The claimant testified that she \nwanted to undergo surgery recommended by Dr. Arnold.  The respondents’ \nattorney cross-examined the claimant: \n\nJIKATAKE - G904652  6\n  \n \n \n  Q.  And you returned to work after the injury.  Correct? \n  A.  Yes, I did go back to work. \nQ.  How long would you say you continued to work after the \ninjury? \nA.  It was a while and then I went and asked if I could quit \nbecause I was in pain.   \n  Q.  So it was your decision to leave Cargill? \nA.  Yes, it was my decision because I was in a lot of pain, but \nwhen I kept going back and telling them, it was like they don’t \ncare.... \nQ.  And when you had surgery by Dr. Heim, were you still \nworking for Cargill? \nA.  No, I wasn’t because I was really in pain at that time.   \nQ.  So Cargill continued to provide medical treatment for you \neven though you were no longer working there? \nA.  Yes. \nQ.  And they provided medical care up until the time your \ndoctor said that you were at maximum medical improvement.  \nCorrect? \nA.  Yes.  It was after the doctor said that, then they stopped \nhelping me.... \nQ.  And have you applied for any employment since leaving \nCargill? \nA.  No. \nQ.  And why not? \nA.  Because I still don’t feel better.  My hand is not better – not \nmy hand, but my shoulder.  It is still not perfect.  I cannot lift \nup anything that is heavy.   \nQ.  So, there is no type of work that you think that you can do \nin your current condition? \nA.  Yes.... \nQ.  So you are saying that after the accident, you were \ncompletely unable to use your left hand? \nA.  Yes.  Yes.  That it what I have been saying from the \nbeginning.   \nQ.  Okay.  And after the surgery, you were still completely \nunable to use your left hand? \nA.  Yes.  Yes, it is still and I can’t lift up anything heavy with \nmy hand.  And also when I lay on it, it also hurts.   \n \n\nJIKATAKE - G904652  7\n  \n \n \n An administrative law judge filed an opinion on May 26, 2021.  The \nadministrative law judge found, “2.  Claimant has failed to meet her burden \nof proving by a preponderance of the evidence that she is entitled to \nadditional medical treatment in the form of surgery by Dr. Arnold.”   \n Dr. Sheldon Ricklon noted on August 2, 2021 that the claimant “has \napplied for work at George’s to be on the line but asking for a letter \n[requesting] some restrictions given the issue with her left shoulder.  Still \nwith pains....Unable to reach above her head secondary to pain and very \nrestricted ROM of her left shoulder.”  Dr. Ricklon noted on September 8, \n2021, “Still with [shoulder] discomfort and limited ROM esp reaching \noverhead.  Wrote letter to employer but states it was not approved.”     \n In an opinion filed October 14, 2021, a majority of the Full \nCommission reversed the administrative law judge’s May 26, 2021 decision.  \nThe Full Commission found that the claimant “has proven by a \npreponderance of the evidence that she is entitled to additional medical \ntreatment in the form of an arthroscopic procedure as recommended by Dr. \nArnold.”  The parties have stipulated that the Full Commission’s October 14, \n2021 opinion was “final.” \n The claimant testified on direct examination: \nQ.  Did Dr. Arnold recommend additional surgery for your left \nshoulder? \n  A.  Yes. \n  Q.  Were you able to have that surgery? \n\nJIKATAKE - G904652  8\n  \n \n \n  A.  No.... \n  Q.  Have you been able to see Dr. Arnold again? \n  A.  No. \n  Q.  Did you finally get a new doctor, Dr. Dougherty? \n  A.  Yes.   \n \n Dr. Christopher P. Dougherty examined the claimant on June 20, \n2022: \nShe is here today as a new patient for continued pain in her \nleft shoulder s/p work accident in June 2019.  Her MRI of the \nleft shoulder shows a split tear in biceps tendon.  Her exam is \nconsistent with biceps tendinitis and adhesive capsulitis.  She \nhas failed conservative care of injections and physical therapy \nand over 3 years of symptoms.  She needs to be set up for a \nleft shoulder arthroscopy with MUA, lysis of adhesions and \nbiceps tenotomy....Once approved we will get her set up for \nsurgery and will see her back after for post operative care.   \n \n Dr. Dougherty corresponded with the claimant’s attorney on August \n18, 2022: \nIn response to your question addressed in your letter dated \nJuly 15, 2022, yes the bicep tear is related to her injury when \nshe fell on her outstretched arm.  Biceps tenotomy is \nindicated.  If the bicep is unstable due to the rotator cuff tear, \nit will not be known until the time of surgery. \nBiceps tenotomy means cutting off one tendon and not \nreattaching it, allowing it to heal to the humerus over a few \nweeks.  The biceps will still function well after tenotomy, but \nthere may be a change in the appearance of the arm with \nsome flattening of the biceps.   \n \n A pre-hearing order was filed on September 13, 2022.  The claimant \ncontended, “The claimant contends she is entitled to surgery for her \ncompensable shoulder injury as recommended by her authorized treating \nphysician, Dr. Dougherty.  Dr. Arnold had recommended surgery, which \n\nJIKATAKE - G904652  9\n  \n \n \nwas awarded by the Full Commission.  Dr. Arnold now refuses to treat her \nas a workers’ compensation case.  Therefore, she requested a change of \nphysician to Dr. Dougherty, and he has recommended surgery for her work-\nrelated condition.  Claimant reserves all other issues.”   \n The respondents contended, “This claim came before the \nCommission for a hearing on May 13, 2021.  It was the Opinion of the ALJ \nthat Claimant failed to meet her burden of proving by a preponderance of \nthe evidence that surgery recommended by Dr. Arnold was reasonable and \nnecessary medical treatment for her compensable left shoulder injury.  That \ndecision was appealed by the Claimant to the Full Commission.  The Full \nCommission reversed and awarded the Claimant the ‘additional medical \ntreatment in the form of an arthroscopic procedure as recommended by Dr. \nArnold.’  Dr. Arnold had recommended a surgical procedure consisting of a \nsubacromioplasty, distal clavicle excision and a rotator cuff repair based \nupon his [identification] of a ‘high-grade partial tear of the supraspinatus’ on \nthe MRI performed on 2/19/2020.  When Claimant attempted to return to Dr. \nArnold to schedule the surgery, Dr. Arnold refused to perform the surgery.  \nA second Change of Physician was authorized and on June 20, 2022, \nClaimant was evaluated by Dr. Dougherty.”   \n The respondents contended, “Dr. Dougherty states in his report that \n‘her MRI of the left shoulder shows a split tear in biceps tendon.’  As it was \n\nJIKATAKE - G904652  10\n  \n \n \nthe first and only visit to Dr. Dougherty, he had not ordered a new MRI, \nconsequently, he must have been utilizing the MRI of 2/19/2020 to come to \nthis conclusion.  It had been the contention of the Respondents previously \nthat when Dr. Marvin interpreted the MRI he noted ‘no rotator cuff tear, \ntendon retraction, or muscle atrophy’ which was contradicted by Dr. \nArnold’s reading.  Additionally, Dr. Marvin wrote in his report: \nThe long head of the biceps tendon rests normally in the \nbicipital groove.  Intra-articular biceps tendon is normal in \nappearance...Intact biceps labral complex.” \n \n The respondents contended, “Dr. Dougherty’s assessment now \nsupports Dr. Marvin’s interpretation of the rotator cuff tendons showing no \ntear and contradicts the opinion of Dr. Arnold in that Dr. Doughtery does not \nidentify a tear in the supraspinatus, does not recommend a distal clavicle \n[resection] nor a rotator cuff repair.  Instead, Dr. Dougherty contradicts both \nDr. Marvin and Dr. Arnold by identifying a bicep tendon tear.”   \n The respondents contended, “It is the contention of the Respondents \nthat the Full Commission authorized a surgical procedure consisting of a \nsubacromioplasty, distal clavicle excision and a repair of Claimant’s left \nsupraspinatus as recommended by Dr. Arnold, basing much of their \nOpinion in the fact that Dr. Arnold ‘believe[d] [this procedure] is reasonable \nand necessary.’  Dr. Dougherty, Claimant’s new treating physician does not \nrecommend the procedure the Full Commission found to be reasonable and \n\nJIKATAKE - G904652  11\n  \n \n \nnecessary, but instead believes a completely different procedure is needed.  \nThe procedure recommended by Dr. Dougherty is not the surgery awarded \nby the Commission, therefore, the Respondents contend that Claimant is \nnot entitled to the surgery proposed by Dr. Dougherty.”   \n The parties agreed to litigate the following issue:  “1.  Claimant’s \nentitlement to additional medical treatment in the form of surgery as \nrecommended by Dr. Dougherty.” \n A hearing was held on November 9, 2022.  The claimant testified \nthat she wanted to  undergo surgery recommended by Dr. Dougherty, \n“because I want to feel much better.”  The claimant testified with regard to \nher left shoulder, “There is pain in it.  Every now and then there will be pain \nin it and if I move it frequently, it will be like a stabbing pain.”       \n An administrative law judge filed an opinion on November 30, 2022.  \nThe administrative law judge found, \"2.  Claimant has met her burden of \nproving by a preponderance of the evidence that she is entitled to additional \nmedical treatment in the form of surgery as recommended by Dr. \nDougherty.”  The parties have stipulated that the administrative law judge’s \nNovember 30, 2022 opinion was “final.” \n Dr. Dougherty performed surgery on April 13, 2023:  “1.  \nSubacromial decompression, distal clavicle resection.  2.  Arthroscopic lysis \nof adhesion.  3.  Manipulation under anesthesia.”  The pre- and post-\n\nJIKATAKE - G904652  12\n  \n \n \noperative diagnosis was “1.  Adhesive capsulitis.  2.  Biceps tendinitis.  3.  \nImpingement syndrome.  4.  Acromioclavicular joint arthritis.”   \n On April 17, 2023, Dr. Dougherty signed a Return to Work/School \nform.  Dr. Dougherty indicated that the claimant could return to work on \nApril 20, 2023 with the following Work Limitations:  “Light duty with 10lb \nlifting restriction.”   \n The claimant followed up with Dr. Dougherty on April 26, 2023: \nShe returns to the office today for her 2 week post op visit for \nsurgery that was performed on 4/13/23.  Left shoulder \narthroscopy with MUA, lysis of adhesions, subacromial \ndecompression and distal clavicle resection.  Her stitches \nwere removed today and the incisions are well healed.  She is \nstill having some pain but she is going to therapy.  She will \ncontinue with her therapy.  She is cleared to return to work on \nMonday May 1 with restrictions of light duty and no lifting \nmore than 10lbs with left upper extremity.  We will see her \nback in 4 weeks for her 6 week post op visit.   \n \n The record indicates that the claimant was provided physical therapy \nbeginning May 5, 2023.  The claimant also continued to follow up with Dr. \nDougherty.   \nA pre-hearing order was filed on June 21, 2023.  The parties \ncontended, “The claimant contends she is entitled to temporary total \ndisability from June 21, 2022 to a date yet to be determined.  Claimant \nreserves all other issues.  The respondents contend that all appropriate \nbenefits have been paid.  Respondents further contend that light duty would \nhave been available but for the fact that claimant voluntarily terminated her \n\nJIKATAKE - G904652  13\n  \n \n \nemployment with respondent employer resulting in claimant not being \nentitled to additional temporary total disability benefits.”   \n The parties agreed to litigate the following issues: \n1.  Temporary total disability benefits from June 21, 2022 \nthrough a date yet to be determined. \n2.  Attorney fee.   \n \n The respondents’ attorney examined the claimant at a deposition \ntaken August 10, 2023: \nQ.  When I looked through all of your stuff, I don’t think that \nyou have worked for Cargill since July of 2019, is that correct? \nA.  July what? \nQ.  July 19\nth\n of 2019. \nA.  That is correct.... \nQ.  Do you know why you were terminated on July 19\nth\n of \n2019? \nA.  They did not stop me.  I stopped myself because I couldn’t \ntolerate the pain.   \nQ.  And my question to you is when you got terminated, you \njust quit going to work because of the pain.  Correct? \nA.  Yes.   \nQ.  And when you stopped going, did you call them and tell \nthem you were not going? \nA.  I didn’t call them.  I told them that I wanted to resign, so \nthey gave me two weeks to resign.  I was the one that \napproached them because I couldn’t handle the pain.  I \nwanted to resign. \nQ.  Since you resigned or since your employment terminated \nwith Cargill back in July of 2019, have you worked for anyone \nelse? \nA.  After the surgery, I went back and I worked at George’s \nand it was just like two – \nTHE INTERPRETER:  Let me clarify what she means by two. \nTHE WITNESS:  But after two weeks, the pain was just too \nmuch and I couldn’t work anymore.... \nQ.  Other than that two weeks, have you worked for anyone \nelse? \n\nJIKATAKE - G904652  14\n  \n \n \nA.  None.... \nQ.  Let’s go back to when you quit at Cargill.  You where there \nfor about a month after you injured your shoulder.  Okay.   \nA.  Uh-huh.  Yes.... \nQ.  And during that period of time, was anyone treating you for \nyour shoulder? \nA.  Yes.  The nurse.   \nQ.  At Cargill? \nA.  Yes.   \nQ.  Okay.  And did Cargill – after you told them you hurt your \nshoulder, did Cargill modify your job for you? \nA.  They didn't. \nQ.  They did not? \nA.  Yes, they didn’t.  I was still at the same place.   \nQ.  Did you ask them to modify your job? \nA.  They said there was no other position available.   \nQ.  Who told you that? \nA.  I asked Shauna.  I told her that my shoulder was really not \nup to spraying the chickens with water and turning them over.   \nQ.  Who is Shauna? \nA.  My supervisor.   \n \n After a hearing, an administrative law judge filed an opinion on \nSeptember 13, 2023.  The administrative law judge found that the claimant \nfailed to prove she was entitled to temporary total disability benefits from \nJune 21, 2022 through a date yet to be determined.  The administrative law \njudge found that the claimant proved she was entitled to temporary total \ndisability benefits “from April 13, 2023, through April 19, 2023.”  The \nclaimant appeals to the Full Commission.   \nII.  ADJUDICATION \n Temporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \n\nJIKATAKE - G904652  15\n  \n \n \nHwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing \nperiod” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \nis that period for healing of the injury which continues until the employee is \nas far restored as the permanent character of the injury will permit.  \nArkansas Highway & Transp. Dep’t v. McWilliams, 41 Ark. App. 1, 846 \nS.W.2d 670 (1993).  The healing period has not ended so long as treatment \nis administered for the healing and alleviation of the condition.  Mad \nButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Whether \nan employee’s healing period has ended is a question of fact for the \nCommission.  Dallas County Hosp. v. Daniels, 74 Ark. App. 177, 47 S.W.3d \n283 (2001).   \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to meet her burden of proving by a preponderance of \nthe evidence that she is entitled to temporary total disability benefits from \nJune 21, 2022 through a date yet to be determined.  Claimant has proven \nby a preponderance of the evidence that she is entitled to temporary total \ndisability benefits from April 13, 2023, through April 19, 2023.”  The Full \nCommission first notes that the administrative law judge erred as a matter \nof law in awarding temporary total disability benefits from April 13, 2023 \nthrough April 19, 2023.  Ark. Code Ann. §11-9-501(a)(1)(Repl. 2012) \n\nJIKATAKE - G904652  16\n  \n \n \nprovides, “Compensation to the injured employee shall not be allowed for \nthe first seven (7) days’ disability resulting from the injury, excluding the day \nof injury.\"  The administrative law judge’s award of seven days in the \npresent matter is not allowed in accordance with Ark. Code Ann. §11-9-\n501(a)(1)(Repl. 2012).   \n Nevertheless, it is the duty of the Full Commission to enter findings \nin accordance with the preponderance of the evidence and not whether \nthere is substantial evidence to support an administrative law judge’s \nfindings.  Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 \n(1983).  The Full Commission reviews an administrative law judge’s opinion \nde novo, and it is the Full Commission’s duty to conduct its own fact-finding \nindependent of that done by an administrative law judge.  Crawford v. Pace \nIndus., 55 Ark. App. 60, 929 S.W.2d 727 (1996).  The Full Commission \nenters its own findings in accordance with the preponderance of the \nevidence.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 \n(1990). \n The Full Commission finds in the present matter that the claimant \nproved she was entitled to temporary total disability benefits beginning June \n21, 2022 and continuing through a date yet to be determined.  The claimant \nbecame employed with the respondents in October 2015.  The parties \nstipulated that the claimant sustained a compensable injury to her left \n\nJIKATAKE - G904652  17\n  \n \n \nshoulder on June 11, 2019.  The claimant testified that she tripped and fell.  \nDr. Heim performed a left shoulder arthroscopy on September 23, 2019.  \nThe claimant testified that she did not benefit from surgery performed by Dr. \nHeim.  Dr. Arnold’s impression in January 2020 was “Sprain of left rotator \ncuff capsule.”  Dr. Arnold eventually recommended additional surgery, \nwhich treatment the respondents controverted.  After an administrative law \njudge found that the claimant was not entitled to surgery recommended by \nDr. Arnold, a majority of the Full Commission filed an opinion on October \n14, 2021 and found that Dr. Arnold’s treatment recommendation was \nreasonably necessary.  The claimant testified that she was unable to have \nsurgery recommended by Dr. Arnold, and that she therefore began treating \nwith Dr. Dougherty.   \n The claimant agreed at deposition that she had not worked for the \nrespondent-employer since July 19, 2019.  The claimant testified that she \nwas unable to effectively move her left upper extremity, without pain, \nfollowing the compensable injury to her left shoulder.  The claimant testified \nthat she attempted to return to work with the respondents for a time but was \nunable to lift objects with her left arm.  The medical evidence corroborated \nthe claimant’s testimony.  For example, Dr. Ricklon reported in August 2021 \nthat the claimant was unable to lift her left arm above her head.  The \n\nJIKATAKE - G904652  18\n  \n \n \nclaimant testified that she “stopped myself” from working for the \nrespondent-employer “because I couldn’t tolerate the pain.”   \n The respondents contend that the claimant’s “voluntary resignation” \nwas a “refusal to return to work” in accordance with Lybyer v. Springdale \nSchool District, 2019 Ark. App. 77, 568 S.W.3d 805.  In Lybyer, the Court of \nAppeals affirmed the Commission’s finding that a “voluntary resignation” in \nfact disqualified a claimant from receiving temporary total disability benefits.  \nIn the present matter, the Full Commission finds that the appellate authority \nmore applicable is Farmers Co-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 \n(2002).  The Court of Appeals in Biles held that if, during the healing period, \nthe employee is unable to perform remunerative labor with reasonable \nconsistency and without pain and discomfort, her temporary total disability \nis deemed total.  See Pyles v. Triple F. Feeds of Texas, 270 Ark. 729, 606 \nS.W.2d 146 (Ark. App. 1980).  In the present matter, the Full Commission \nfinds that the claimant was physically unable to perform remunerative labor \nfor the respondents as a result of the compensable injury to the claimant’s \nleft shoulder.   \n Dr. Dougherty opined on June 20, 2022 that diagnostic testing of the \nclaimant showed a “split tear in biceps tendon....She needs to be set up for \na left shoulder arthroscopy with MUA, lysis of adhesions and biceps \ntenotomy.”  In their brief on appeal, the respondents agree that the claimant \n\nJIKATAKE - G904652  19\n  \n \n \nre-entered a healing period beginning June 20, 2022.  The respondents \nassert that the claimant failed to prove the “second prong” of entitlement to \ntemporary total disability benefits, that is, “incapacity to earn wages.”  The \nFull Commission finds that the claimant remained within a healing period \nand was totally incapacitated from earning wages beginning June 21, 2022 \nand continuing through a date yet to be determined.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she was entitled to temporary total disability \nbenefits beginning June 21, 2022 and continuing through a date yet to be \ndetermined.  See Breshears, supra.  The claimant proved by a \npreponderance of the evidence that she was physically unable to perform \nremunerative labor for the respondents beginning June 21, 2022 and \ncontinuing through a date yet to be determined.  See Biles, supra.  The \nrespondents failed to prove that the claimant refused suitable employment \nin accordance with Ark. Code Ann. §11-9-526(Repl. 2012). \n The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \non appeal to the Full Commission, the claimant’s attorney is entitled to an \nadditional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b)(Repl. 2012). \n \n\nJIKATAKE - G904652  20\n  \n \n \n IT IS SO ORDERED.     \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION      \n I must respectfully dissent from the Majority’s finding the claimant \nproved she is entitled to temporary total disability benefits from June 21, \n2022, to a date yet to be determined. \nOur Rules require that to prevail on a request for temporary total \ndisability benefits, the claimant must prove by a preponderance of the \nevidence that he is totally incapacitated from earning wages and remains in \nhis healing period.  Hickman v. Kellogg, Brown, and Root, 372 Ark. 501, \n277 S.W.3d 591 (2008).  \nThe healing period ends when the employee is as far restored as the \npermanent nature of his injury will permit, and if the underlying condition \ncausing the disability has become stable and if nothing in the way of \ntreatment will improve that condition, the healing period has ended.  Id.  \nThe determination of when the healing period has ended is a factual \ndetermination for the Commission.  Id. \n\nJIKATAKE - G904652  21\n  \n \n \nI. The claimant has been released to return to work by three \ntreating physicians.  She is not incapacitated from \nearning wages. \n \nThe claimant has been returned to work by three of the \nphysicians she has encountered throughout this process.  Dr. \nMarcus Heim reported the claimant “is not on work restrictions \ncurrently, she is no longer working.”  Dr. Heim expressed \nreservations about the claimant’s motivation, stating, “[s]he does not \nseem terribly motivated so I am a little apprehensive about this,” but \nopined there was no other option to treat the claimant.   \nOn September 23, 2019, Dr. Heim opined the claimant “may \nreturn to work on 09/24/2019 with the following restrictions: no use of \nleft arm for the next 2 weeks.”  \nOn January 21, 2020, Dr. Christopher Arnold assessed a work \nrestriction of “[n]o lifting, pushing or pulling greater than 25 lbs.  No \nrepetitive overhead.”   \nThe claimant’s testimony reflects her treating physician, Dr. \nChristopher Dougherty returned her to work with restrictions \nfollowing her April 13, 2023 surgery.  At her deposition, the claimant \nhad the following exchange: \nQ: (by Mr. Zuerker) Up \nuntil you saw Dr. \nDougherty, did any \ndoctor have you on \n\nJIKATAKE - G904652  22\n  \n \n \nany kind of \nrestrictions? \n \nA: What kind of \nrestrictions? \n \nQ: Don’t’ work or do \ncertain things at work. \n \nA: No, no one said that. \nOnly he said that I \ncould work. \n \nQ: Did Dr. Dougherty tell \nyou you should work? \n \nA: Yes, he said that I \ncould work, but I \nshouldn’t carry \nanything more than \nfive pounds and that I \nshould use my right \nhand more than my \ninjured hand. \n \nQ: And after he told you \nthat, did you look for \nany work? \n \nA: No, I didn’t. \n \nDr. Dougherty opined on five occasions the claimant was physically \nable to return to work with light duty restrictions beginning April 20, 2023.   \nOn May 26, 2023, Dr. Dougherty prescribed “10 work hardening \nvisits . . . to help her transition back to work. . . At this time she is cleared to \nreturn to work, with lifting restriction of no more than 10 lbs.”  Dr. Dougherty \n\nJIKATAKE - G904652  23\n  \n \n \nincreased the claimant’s lifting restriction to twenty pounds on August 9, \n2023. \nDr. Dougherty clearly intended for the claimant to return to work and \nencouraged her to do so on numerous occasions.  Her previous treating \nphysicians clearly agreed  she was capable of doing so.  The only party \nlimiting the claimant’s ability to work is herself with her self-serving \ntestimony.  \nWe expect workers to make a “good-faith effort to return to the work \nforce following an injury,\" and the claimant has failed to do so in this case. \nFarmers Co-Op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  The \nclaimant’s refusal to return to the workforce despite all evidence she could \ndo so does not entitle her to indefinite disability benefits.  \nII. The claimant forfeited any entitlement to temporary total \ndisability benefits when she resigned her position from \nCargill. \n \nOur rules provide:  \n \n[i]f any injured employee refuses \nemployment suitable to his or her \ncapacity offered to or procured for \nhim or her, he or she shall not be \nentitled to any compensation \nduring the continuance of the \nrefusal, unless in the opinion of the \nWorkers' Compensation \nCommission, the refusal is \njustifiable. \n \n\nJIKATAKE - G904652  24\n  \n \n \nHere, the claimant voluntarily terminated her employment in July \n2019, prior to undergoing surgery.  The claimant testified, “I told them that I \nwanted to resign... I was the one that approached them because I couldn’t \nhandle the pain. I wanted to resign.”  \nCargill’s workers’ compensation coordinator, Jennifer Ponder, stated \nthe claimant would have been offered light duty work if she had not \nresigned.  Ms. Ponder also testified that since her resignation in 2019, the \nclaimant has never come back and asked Cargill for any light duty work.  \nThe claimant simply has no interest in returning to work despite the \nefforts of numerous doctors and physical therapists.  Her own self-limiting \nbehavior cannot be the sole basis for an indefinite award, and we should \ncarefully examine the claimant’s credibility in this matter, as her testimony is \nclearly contradicted by the weight of the medical evidence. \nAccordingly, for the reasons set forth above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":34891,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G904652 NELA JIKATAKE, EMPLOYEE CLAIMANT CARGILL MEAT PRODUCTS, EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SVCS., INC, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 13, 2024","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["shoulder","rotator cuff","sprain","repetitive","back"],"fetchedAt":"2026-05-19T22:29:44.729Z"},{"id":"alj-H200740-2024-12-13","awccNumber":"H200740","decisionDate":"2024-12-13","decisionYear":2024,"opinionType":"alj","claimantName":"Margaret Ejiogu","employerName":"Avimoe, LLC","title":"EJIOGU VS. AVIMOE, LLC AWCC# H200740 December 13, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/EJIOGU_MARGARET_H200740_20241213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EJIOGU_MARGARET_H200740_20241213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H200740 \n \nMARGARET EJIOGU, EMPLOYEE        CLAIMANT \nAVIMOE, LLC, EMPLOYER      RESPONDENT \nLIBERTY MUTUAL, TPA/ CARRIER     RESPONDENT \n \nOPINION FILED DECEMBER 13, 2024 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on December 3, 2024. \nClaimant is pro se and failed to appear. \nRespondents are represented by their attorney, Jason Ryburn, of Little Rock \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on December 3, 2024, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct. The  claimant  was pro  se  and  failed  to  appear  for  the  hearing.  The  Claimant was \nallegedly injured on January 17, 2022, while at work. Multiple Form AR-Cs were filed in \nthis matter with the most recent being filed on May 16, 2024. The initial claim for benefits \nwas accepted by the Respondents and benefits were paid, but the Claimant later claimed \nadditional injuries which were not accepted by the Respondents, and no benefits were \npaid in  regard  to these  additional  claims.  The  claimant  was  previously  represented  by \nLaura Beth York, who was allowed to withdraw by an Order from the Full Commission \nfiled on September 26, 2024.   \n\nMargaret Ejiogu – H200740 \n The claimant has failed to pursue this claim as required by law and a Motion to \nDismiss was filed by the respondents in this matter on October 7, 2024. Appropriate notice \nwas provided to the claimant notifying her that a hearing on the Motion to Dismiss was \nset for December 3, 2024, in Little Rock, Arkansas. The claimant did not file a response \nand failed  to appear  on  the  hearing  date. At  the  time  of  the  hearing, Jason  Ryburn \nappeared on behalf of the Respondents and asked that the matter be dismissed for lack \nof prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondents, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2659,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H200740 MARGARET EJIOGU, EMPLOYEE CLAIMANT AVIMOE, LLC, EMPLOYER RESPONDENT LIBERTY MUTUAL, TPA/ CARRIER RESPONDENT OPINION FILED DECEMBER 13, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas on December 3, 2024. Claima...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:22.796Z"},{"id":"alj-H104989-2024-12-13","awccNumber":"H104989","decisionDate":"2024-12-13","decisionYear":2024,"opinionType":"alj","claimantName":"Michael Savage","employerName":"Lee’s Electric, LLC","title":"SAVAGE VS. LEE’S ELECTRIC, LLC AWCC# H104989 December 13, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SAVAGE_MICHAEL_H104989_20241213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SAVAGE_MICHAEL_H104989_20241213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H104989 \n \nMICHAEL D. SAVAGE, EMPLOYEE        CLAIMANT \nLEE’S ELECTRIC, LLC, EMPLOYER     RESPONDENT \nAUTO-OWNERS INSURANCE CO., CARRIER    RESPONDENT \n \nOPINION FILED DECEMBER 13, 2024 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on December 3, 2024. \nClaimant is represented by Laura Beth York. \nRespondents are represented by their attorney, Rick Bearing, Jr. of Little Rock \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on December 3, 2024, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct. The  claimant  was represented  by  Laura  Beth  York  who  waived  their  entry  of \nappearance  if  the  matter  was  dismissed  without  prejudice. The  Claimant suffered \ncompensable injuries as  a  result  of  a  work-related  injury to  his head, brain, and  whole \nbody on June 8, 2021. The Form AR-2 provided that the Respondent’s accepted the claim \nas acceptable and the Claimant has continued to receive appropriate benefits. He was \nreleased  at  maximum  medical  improvement  with  a  permanent  anatomical  impairment \nrating and  the  rating was  accepted  and  paid  by  the  Respondents.  The  Respondents \n\nMichael Savage – H104989 \nstated at the time of the hearing that they continue to stand ready to provide appropriate \nbenefits.   \n The claimant has failed to take any action in more than six months to pursue this \nclaim. A Motion to Dismiss was filed by the respondents in this matter on September 16, \n2024. Appropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was set for December 3, 2024, in Little Rock, Arkansas. The claimant, \nthrough his attorney, waived his appearance to the hearing if the matter was dismissed \nwithout prejudice. At the time of the hearing, Rick Behring, Jr. appeared on behalf of the \nRespondents and asked that the matter be dismissed for lack of prosecution pursuant to \nA.C.A. 11-9-702(a)(4), 11-9-702(d), and Rule 099.13 of the Commission.  \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondents, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to \ndismiss this claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2884,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H104989 MICHAEL D. SAVAGE, EMPLOYEE CLAIMANT LEE’S ELECTRIC, LLC, EMPLOYER RESPONDENT AUTO-OWNERS INSURANCE CO., CARRIER RESPONDENT OPINION FILED DECEMBER 13, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas on December...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:24.890Z"},{"id":"alj-H208441-2024-12-13","awccNumber":"H208441","decisionDate":"2024-12-13","decisionYear":2024,"opinionType":"alj","claimantName":"Mark Still","employerName":"Luther Family Holdings, Ltd., D/b/a/ Landers Auto Group","title":"STILL VS. LUTHER FAMILY HOLDINGS, LTD., D/B/A/ LANDERS AUTO GROUP AWCC# H208441 December 13, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/STILL_MARK_H208441_20241213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STILL_MARK_H208441_20241213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208441 \n \nMARK ALLEN STILL, EMPLOYEE        CLAIMANT \n \nLUTHER FAMILY HOLDINGS, LTD., \nD/B/A/ LANDERS AUTO GROUP, EMPLOYER   RESPONDENT \n \nLM INSURANCE CORPORATION/ CARRIER     RESPONDENT \n \nOPINION FILED DECEMBER 13, 2024 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on December 3, 2024. \nClaimant is pro se and failed to appear. \nRespondents are represented by their attorney, David C. Jones, of Little Rock \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on December 3, 2024, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct. The claimant was pro se and failed to appear for the hearing. The Claimant suffered \nan accidental injury to his left shoulder, as well as residual injuries, from the incident, that \narose out of and in the course of his employment on November 25, 2002, while at work \nfor  Respondents. A  Form  AR-1  was  filed  on  December  2,  2022,  with  the  Arkansas \nWorkers’ Compensation Commission. A Form AR-2 was then filed with the Commission \non December 9, 2022, confirming that the claim had been accepted and temporary total \nbenefits had been initiated. The claimant eventually underwent treatment at the direction \nof  Dr.  Jeffrey  Johnson,  which  included  surgery  in  February  of  2023.  The  claimant \n\nMark Still – H208441 \nunderwent a functional capacity exam on June 8, 2023, where he put forth a perfect effort \nof 50 out of 50 and was assigned an 8% impairment rating to the body as a whole as a \nresult  of  the above-mentioned injury  and  this was  accepted  by  the  Respondents.  The \nClaimant returned to work with the Respondent/Employer. The claimant was previously \nrepresented by Laura Beth York, who was allowed to withdraw by an Order from the Full \nCommission filed on January 9, 2024.   \n The claimant has failed to take any action in more than six months to pursue this \nclaim. A Motion to Dismiss was filed by the respondents in this matter on September 26, \n2024. Appropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was set for December 3, 2024, in Little Rock, Arkansas. The claimant \ndid not file a response and failed to appear on the hearing date. At the time of the hearing, \nDavid  Jones appeared  on  behalf  of  the  Respondents and asked  that  the  matter  be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondents, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3255,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208441 MARK ALLEN STILL, EMPLOYEE CLAIMANT LUTHER FAMILY HOLDINGS, LTD., D/B/A/ LANDERS AUTO GROUP, EMPLOYER RESPONDENT LM INSURANCE CORPORATION/ CARRIER RESPONDENT OPINION FILED DECEMBER 13, 2024 Hearing before Administrative Law Judge James D. Kennedy in...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:45:26.954Z"},{"id":"alj-H307861-2024-12-12","awccNumber":"H307861","decisionDate":"2024-12-12","decisionYear":2024,"opinionType":"alj","claimantName":"Steven Kelems","employerName":"Nidec Motor Corporation","title":"KELEMS VS. NIDEC MOTOR CORPORATION AWCC# H307861 December 12, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KELEMS_STEVEN_H307861_20241212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KELEMS_STEVEN_H307861_20241212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H307861 \n \nSTEVEN E. KELEMS, EMPLOYEE   CLAIMANT \n \nNIDEC MOTOR CORPORATION, EMPLOYER RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED DECEMBER 12, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is pro se and did not attend the hearing. \n \nRespondents are represented by GUY A. WADE, Attorney, Little Rock Arkansas \n \nOPINION/ORDER \n \n On  March 6, 2024, claimant filed Form AR-C, alleging a compensable injury on October 13, \n2023.   Claimant was represented at the time by Laura Beth York, who filed a motion to withdraw on \nMay 3, 2024 and was allowed to withdraw on June 4, 2024.   \nOn September 17, 2024, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time. A hearing on respondent’s Motion to Dismiss was scheduled for \nDecember 2, 2024.  Notice of the scheduled hearing was sent to Claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was returned unclaimed on October  31, \n2024.    Claimant did not respond to Respondent’s motion and did not appear in person at the hearing \non December 2, 2024.  \nI find it has been more than six months since prior to this hearing and that no request for a \n\nKelems-H307861 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the claimant’s lack of \nresponse and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2110,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H307861 STEVEN E. KELEMS, EMPLOYEE CLAIMANT NIDEC MOTOR CORPORATION, EMPLOYER RESPONDENT TRAVELERS INDEMNITY COMPANY/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED DECEMBER 12, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Se...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:18.560Z"},{"id":"alj-H102949-2024-12-12","awccNumber":"H102949","decisionDate":"2024-12-12","decisionYear":2024,"opinionType":"alj","claimantName":"Terry Mencl","employerName":"Staffmark Group","title":"MENCL VS. STAFFMARK GROUP AWCC# H102949 December 12, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MENCL_TERRY_H102949_20241212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MENCL_TERRY_H102949_20241212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n \n CLAIM NO. H102949 \nTERRY MENCL, EMPLOYEE CLAIMANT \n \nSTAFFMARK GROUP, EMPLOYER RESPONDENT \n \nDAUGHERTY & DAUGHERTY D/B/A RESPONDENT \n1\nST\n EMPLOYMENT STAFFING \n \n \n OPINION FILED DECEMBER 12, 2024 \n \n \nBefore ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by BRIAN G. BROOKS, Attorney, Greenbrier, Arkansas, and \nCHRISTOPHER HEIL, Attorney, Little Rock, Arkansas. \n \nRespondents represented by STUART P. MILLER and JACOB A. MCELROY, Attorneys, \nRogers, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On August  27,  2024,  the  parties  filed  a  Joint  Petition for Applicability  of  Workers' \nCompensation Jurisdiction. Upon receiving that filing, I emailed counsel for the parties and \nadvised that if the parties could submit a Stipulation of Facts, I would be willing to decide this \nmatter without the necessity of an evidentiary hearing. The attorneys agreed they could do so, \nand on October 7, 2024, filed a Joint Stipulation of Facts. I requested simultaneous briefs from \nthe parties, and those were submitted on or before October 21, 2024.  \n While  Staffmark  Group  is  listed  in  the  heading  of  this  case,  that respondent  is  not \ninvolved in this action, and any reference to “respondent” in this opinion is to Daugherty and \nDaugherty d/b/a 1\nst\n Employment Staffing.  \n\nMencl-H102949 \n2 \n \n \nTHE JOINT STIPULATIONS \n The parties submitted these joint stipulations: \n “1.   On March 18, 2023, Mencl and Yezenia Bastida (“Bastida”) were working at \nTechnical  Machining  Services  (“TMS”),  having  been  assigned  there  by  their  respective \ntemporary employment agencies. \n 2.   Mencl was assigned to TMS through Staffmark, a temporary employment agency. \n 3.      Bastida  was  assigned  to  TMS  through  1\nST\n Employment,  also  a  temporary \nemployment agency. \n 4.   While under the direction and control of TMS, Ms. Mencl’s hand was significantly \ninjured as she and Bastida were operating the form press machine. \n 5.   Both Plaintiff and Ms. Bastida were assigned to TMS, either under an express or \nimplied contract and TMS controlled the details of their work performance. \n 6.   As a result of this incident, Mencl filed a worker’s compensation claim (#H102949). \n 7.   Mencl’s worker’s compensation claim has been fully paid out and closed. \n 8.   On July 28, 2023, Mencl filed suit against 1\nST\n Employment alleging that Bastida, \nwhile acting in the course and scope of her employment with 1\nST\n Employment, was negligent \nand therefore 1\nST\n Employment was vicariously liable for the alleged negligence of Bastida. \n 9.   1\nST\n Employment filed its answer on September 21, 2023. Further, 1\nST\n Employment \nfiled a Motion to Dismiss or in the alternative, Motion to Stay (“Motion”) pending a ruling \nfrom the Worker’s Compensation Commission on April 9, 2024. \n 10.   Mencl filed her response on May 2, 2024, and briefing was complete on May 8, \n2024. \n 11.   The Court heard the parties’ argument on June 17, 2024, and  ruled  on  July  2, \n\nMencl-H102949 \n3 \n \n \n2024, that the matter should be transferred to the Worker’s Compensation Commission to \n“determine the applicability of the worker’s compensation law pertaining to this matter.”  \n The  issue  presented  to  me  on  this  stipulated  record as  set  out  in  the  Order  of  the \nBenton County Circuit Court was whether claimant is barred by the Workers’ Compensation \nAct from pursuing a claim for personal injuries for negligence on the part of her co-worker. \nFrom a review of the stipulations of the parties and the applicable law, the following findings \nof fact and conclusions of law are made in accordance with A.C.A. § 11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The joint stipulations agreed to by the parties are hereby accepted as fact. \n 2.   Claimant is not barred from pursuing a tort action in Circuit Court against \nrespondent. \n FACTUAL BACKGROUND \n As set forth in the accepted facts, this matter comes before me because claimant filed \na third-party action against 1\nST\n Employment Staffing in Benton County Circuit Court, seeking \na judgment against respondent for damages she sustained while working through Staffmark \nGroup  at  Technical  Machining  Services  (TMS) due  to  the  negligence  of  a  co-worker.    The \nCircuit Court issued this Order (in pertinent part) in transferring this matter to the Arkansas \nWorkers’ Compensation Commission: \n \nThe Arkansas Worker’s Compensation Commission has exclusive, \noriginal jurisdiction to determine the facts that establish its jurisdiction, \nunless the facts are so one-sided that the issue is no longer one of fact, \nsuch as an intentional tort. \n \nNo such facts exist in this matter; therefore, the Arkansas Worker’s \nCompensation Commission  shall  determine  the  applicability  of  the \nworker’s compensation law pertaining to this matter. \n\nMencl-H102949 \n4 \n \n \n \nAs such, the matter will be transferred, and the parties shall pursue a \ndetermination  before the  Commission  as  to  the  applicability  of \nworkers’ compensation law in accordance with Vanwagoner  v.  Beverly \nEnterprises, 334 Ark. 12 (1998).  \n \n The  parties both submitted  excellent briefs,  which were  very  much appreciated  and \nare blue backed to the record of this case, along with the Joint Stipulation of Facts and the \nOrder to Stay Proceedings and Transfer Issues to the Arkansas Workers’ Compensation \nCommission entered on July 2, 2024 by Benton County Circuit Judge Christine Horwart.  \nADJUDICATION \n \n The Benton County Circuit Court asked if the Arkansas Workers’ Compensation Law \napplied to this case. Having reviewed the statutes and case law, I find that it does not.          \nThe exclusive-remedy provision of the Act is found at Arkansas Code Annotated §11-\n9-105(a), which states, in pertinent part:  \n“(a)  The  rights  and  remedies  granted  to  an  employee  subject  to  the \nprovisions  of  this  chapter,  on  account  of  injury  or  death,  shall  be \nexclusive  of  all  other  rights  and  remedies  of  the  employee,  his  legal \nrepresentative, dependents, next of kin, or anyone otherwise entitled \nto recover damages from the employer...”   \n \nThe second applicable  statute  is §11-9-410 (a)(1)(A),  which addresses  third-party \nliability:  \n“The  making  of  a  claim  for  compensation  against  any  employer  or \ncarrier for the injury or death of an employee shall not affect the rights \nof the employee, or his or her dependents, to make a claim or maintain \nan action in court against any third party for the injury...” \n \nA.C.A.  §11-9-704(c)(3) provides: “Administrative law judges, the Commission, and \nany reviewing courts shall construe the provisions of this chapter strictly.” The doctrine of \nstrict  construction  requires  this  court  to  use  the  plain  meaning  of  the  language employed, \nHapney v. Rheem Mfg. Co., 341 Ark. 548, 553, 26 S.W.3d 771, 774 (2000).  \n\nMencl-H102949 \n5 \n \n \n  So, reading the plain language of the relevant statutory provisions, it is apparent that \nArkansas  law requires  an  employee  to  bring  any  claim  for  damages  against  an  employer \nthrough a claim before the Workers’ Compensation Commission, but recognizes the right of \nan  injured  party  to  bring  a  claim  against  a  third  party. The  statutes  do  not  define  the  term \n“third party,” but the Arkansas Supreme Court did so in Neal v. Oliver 246 Ark. 377, 438 S.W.2d \n313, (1969):  \n“The  term  \"third  party\"  is  not  defined  in the  act  and  the  first  and \nsecond  parties  are  not  even  mentioned,  but  from  the  language \nemployed in the context it is used in § 1340 (a), [now §11-9-410] supra, \n\"third party\" can only mean some person or entity other than the first \nand second parties involved, and the first and second parties can only \nmean the injured employee and the employer or one liable under the \ncompensation act. Thus, it is obvious from the wording of the statute, \nas well as common sense, that a \"third party\" within the meaning of \nthe act, must be some party other than an employer who is liable under \nthe act...”  \n \nThe Neal case decided  before  the Arkansas legislature  made major  changes  to  the \nexisting workers’ compensation law in 1993. In Miller v. Enders, 2013 Ark. 23, 425 S.W.3d 723, \nthe Arkansas Supreme Court stated: “The General Assembly is presumed to be familiar with \nthe appellate courts' interpretation of its statutes, and if it disagrees with those interpretations, \nit  can  amend  the  statutes.  Without  such  amendments,  however,  the  appellate  courts' \ninterpretations  of  the  statutes  remain  the  law.\" In  reviewing  cases  involving  the  exclusive \nremedies statute, I noted that the relevant parts of §11-9-105 and §11-9-410 (formerly §81-\n1304 and §81-1340, respectively) were unchanged by the 1993 amendments and therefore the \ninterpretations of those laws became part of the statute itself. \nWhile I agree with the parties that there is no case specifically on point in Arkansas—\nthat  being  a  person hired  by  one  employment  agency suing a  different employment  agency \nthat had placed someone in the same business--there have been a few decisions that involved \n\nMencl-H102949 \n6 \n \n \ntemporary  employees that  were  injured  while  working  for  a  special  employer that  provide \nguidance on this issue.  Daniels v. Riley's Health & Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 \n(1992) cited Larson, The Law of Workmen's Compensation, § 48.00 (1962), under the heading \n\"Lent Employees and Dual Employment:\" \n“When a general employer lends an employee to a special employer, \nthe special employer becomes liable for workmen's compensation only \nif: \n(a) The employee has made a contract for hire, express or implied, with \nthe special employer;  \n                        (b) The work being done is essentially that of the special employer; and \n(c)  The  special  employer  has  the  right  to  control  the  details  of  the \nwork.” (Emphasis added).  \n \nThat section which was approved by the Arkansas Supreme Court is now 5 Larson's \nWorkers' Compensation Law, Chapter 67, with slightly different, but more helpful, wording: \n“When  one  employer  loans  its  employee  to  a  third  party,  the \nborrowing entity becomes liable for workers’ compensation if: \n \n(1)the employee has made a contract of hire, express or implied, with \nthe third party; \n                         \n(2)the work being done is essentially that of the third party; and \n                         \n(3)the third party has the right to control the details of the work. \n \nIn this case the third party is deemed to be the “special employer” of \nthe  employee,  the  lending  employer is deemed to be the “general \nemployer,”  and  both  employers  are  liable  for  workers’ \ncompensation.”  \n \nWith that in mind, I cannot find that respondent is entitled to be considered a dual \nemployer of Mencl for the simple reason that one cannot be a dual employer without first be \neither a general employer or a special employer. There was no employment contract between \nclaimant and respondent, which claimant recognized when she filed a workers’ compensation \nclaim against her general employer Staffmark and the special employer, TMS.  The lack of any \n\nMencl-H102949 \n7 \n \n \nemployment contract between claimant and respondent would have given a defense for the \nworkers’  compensation  carrier  for 1\nst\n Employment  Staffing  and  ultimately defeated  any \nworkers’ compensation claim that Mencl would have brought against respondent.   \nWithout a remedy under the workers’ compensation laws of this state, there is no bar \nto pursuing a tort remedy, see Automated Conveyor Sys. v. Hill, 362 Ark. 215, 208 S.W.3d 136 \n(2005), which includes this language:  \n“... Article  2,  section  13 of  the  Arkansas Constitution  states, ‘Every \nperson  is  entitled  to  a  certain  remedy  in  the  laws  for  all  injuries  or \nwrongs he may receive in his person, property or character....’ It  is \nclear from our case law and our constitution that a worker whose injury \nis  not  covered  by  the  WCA [Workers  Compensation  Act] is  not \nprecluded from filing a claim in tort against his employer.” \n \n  If  an  employee may  sue  an  employer  for injuries  not  covered  under workers’ \ncompensation law, then a non-employee certainly can proceed with a tort claim.  \nORDER \n \n For  the  reasons  set  forth  above, claimant  is  not  barred  by  the  exclusive  remedy \nprovisions of A.C.A §11-9-105 from bringing a civil action against 1\nST\n Employment Staffing, \nas claimant was not employed by 1\nST\n Employment Staffing, nor is it entitled to be considered \na dual employer for the purposes of Arkansas workers’ compensation law.  \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":13041,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H102949 TERRY MENCL, EMPLOYEE CLAIMANT STAFFMARK GROUP, EMPLOYER RESPONDENT DAUGHERTY & DAUGHERTY D/B/A RESPONDENT 1 ST EMPLOYMENT STAFFING OPINION FILED DECEMBER 12, 2024 Before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arka...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:20.734Z"},{"id":"alj-H401250-2024-12-09","awccNumber":"H401250","decisionDate":"2024-12-09","decisionYear":2024,"opinionType":"alj","claimantName":"Lisa Curtis","employerName":"Engagemed, Inc","title":"CURTIS VS. ENGAGEMED, INC. AWCC# H401250 December 09, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CURTIS_LISA_H401250_20241209.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CURTIS_LISA_H401250_20241209.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H401250 \n \n \nLISA CURTIS,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nENGAGEMED, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nCINCINNATI INDEMNITY CO./ \nCINCINNATI INS. CO. \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED DECEMBER 9, 2024 \n \n \nHearing conducted on Friday, December 6, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Hot Springs, \nGarland County, Arkansas. \n \nThe claimant, Ms. Lisa Curtis, pro se, of Hot Springs, Garland County, Arkansas, failed and/or \nrefused to appear at the hearing.  \n \nThe respondents were represented by the Honorable Karen H. McKinney, Barber Law Firm, \nLittle Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n          A  hearing was  conducted  on Friday,  December  6,  2024,  to  determine  whether  this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). On September 18, \n2024, the respondents filed a motion to dismiss this claim without prejudice (MTD) for lack of \nprosecution pursuant to the aforementioned statute and Commission rule.  \n        In compliance with the applicable law the claimant was mailed due and legal notice of the \nrespondents’ MTD as  well  as  the  date,  time,  and  location  of  the  subject  hearing via  the  United \n\nLisa Curtis, AWCC No. H401250 \n2 \n \nStates  Postal  Service  (USPS),  certified  mail,  return  receipt  requested,  which  she  received in \nOctober  2024. (Commission’s  Exhibit  1). The  claimant  did  not  respond  in  writing  to  the \nrespondents’ motion, and she failed and/or refused to appear at the subject hearing. \n       The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto.  \nDISCUSSION \n       Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion \nto  dismiss. The respondents’ MTD contains a thorough, relevant, and accurate recitation of the \nfacts,  which  I  hereby  incorporate  by  reference  as  if  they  were  set  forth  word-for-word  herein. \n(Hearing Transcript; Respondents’ Exhibit 1). Rather than recite a detailed analysis of the record, \nsuffice it to say the preponderance of the evidence introduced at the hearing and contained in the \nrecord conclusively  reveals the claimant has failed and/or refused to prosecute her claim at this \ntime. (Respondents’ Exhibits 1A-E; 2, and 3). Therefore, I must conclude the claimant does not \nwish to pursue her claim. \n      Therefore,   after   a thorough   consideration   of   the   facts,   issues,   the applicable   law, \nrepresentations of highly credible counsel, and other relevant matters of record, I hereby make the \nfollowing: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed due and legal notice of the respondents’ MTD without prejudice \nfiled September  18,  2024,  as  well  as notice  of the date, time,  and  place of  the  subject \nhearing, the claimant failed and/or refused to respond in any way to the respondents’ MTD, \n\nLisa Curtis, AWCC No. H401250 \n3 \n \nand she failed and/or refused to appear at the hearing. Therefore, the claimant is deemed to \nhave waived her right to a hearing on the respondents’ MTD. \n \n3. The claimant has not requested a hearing in the last six (6) months, and she has failed to \nprosecute her claim. \n \n4. The respondents’ MTD without prejudice filed September 18, 2024, should be and hereby \nis GRANTED; and this claim is dismissed without prejudice to its refiling pursuant to the \ndeadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and Commission \nRule 099.13. \n \n      This Order shall not be construed to prohibit the claimant, her attorney, any attorney she may \nretain in the future, or anyone acting legally and on her behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n      If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n      IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nLisa Curtis, AWCC No. H401250 \n4","textLength":5433,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401250 LISA CURTIS, EMPLOYEE CLAIMANT ENGAGEMED, INC., EMPLOYER RESPONDENT CINCINNATI INDEMNITY CO./ CINCINNATI INS. CO. CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED DECEMBER 9, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:16.494Z"},{"id":"alj-H307249-2024-12-05","awccNumber":"H307249","decisionDate":"2024-12-05","decisionYear":2024,"opinionType":"alj","claimantName":"Jennifer Carter","employerName":"Baptist Health","title":"CARTER VS. BAPTIST HEALTH AWCC# H307249 December 05, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Carter_Jennifer_H307249_20241205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Carter_Jennifer_H307249_20241205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307249 \n \n \nJENNIFER N. CARTER, EMPLOYEE CLAIMANT \n \nBAPTIST HEALTH, \nSELF-INSURED EMPLOYER RESPONDENT \n \nCLAIMS ADMIN. SVCS., \nTHIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED DECEMBER 5, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on December 5, 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Melissa  Wood,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on December 5, 2024, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  were Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”) and  Respondents’  Exhibit  1, \nforms, pleadings, reports, and correspondence related to this claim, consisting of \n15 and 12 pages, respectively. \n\nCARTER – H307249 \n \n2 \n \n The record shows the following procedural history: \n Per the First Report of Injury or Illness filed on November 7, 2023, Claimant \npurportedly suffered an injury to her lower back at work on September 24, 2023, \nwhile performing a “patient transfer.”  According to the Form AR-2  that  was  filed \non November 8, 2023, Respondents accepted the claim as a medical-only one. \n On November 5, 2023, through then-counsel Mark Alan Peoples, Claimant \nfiled a Form AR-C, requesting the full range of initial benefits in connection with an \ninjury to  her back  that she  allegedly  suffered  at  work  on August  24,  2023.  \nCounsel in an email accompanying this filing stated that he was “not asking for a \nhearing.”  Respondents’ counsel entered their appearance on November 9, 2023. \n Claimant requested a one-time change of physician.  Rosalyn Watts, then-\ndirector  of  the  Commission’s  Medical  Cost  Containment  Division,  entered  a \nChange-of-Physician  Order  on  February  13,  2024,  changing  her  authorized \ntreating  physician  from  OrthoArkansas  to  Dr.  Reza  Shahim,  and  scheduling  an \nappointment for her with Shahim for February 19, 2024. \n On August 19, 2024, Peoples moved to withdraw from his representation of \nClaimant.    In  an  Order  entered  on September  18, 2024, the  Full  Commission \ngranted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nOctober  4,  2024.    On  that  date, Respondents filed  the  instant  motion,  asking  for \ndismissal  of  the  claim under  AWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-\n\nCARTER – H307249 \n \n3 \n \n702(a)(4)  (Repl.  2012) because “Claimant  has  not  sought  any  type  of  bona  fide \nhearing before the Workers’ Compensation Commission over the last six months.”  \nMy office wrote Claimant on October 9, 2024, asking for a response to the motion \nwithin 20 days.  The letter was sent by first class and certified mail to the Conway, \nArkansas address for  her listed  in  the  file and  on her Form  AR-C.   A “Danielle \nCarter” signed for the certified letter on October 11, 2024; and the first-class letter \nwas  not  returned.   Regardless,  no  response  from her to  the  motion was \nforthcoming.    On October  30,  2024,  a  hearing  on  the Motion to Dismiss was \nscheduled for December 5, 2024, at 12:30 p.m. at the Commission in Little Rock.  \nThe  notice  was  sent  to  Claimant  via  first-class  and  certified  mail to  the  same \naddress as  before.   In  this  instance, Claimant claimed the certified  letter on \nNovember 1, 2024; and the first-class letter was, again, not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the foregoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nCARTER – H307249 \n \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for initial \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \n\nCARTER – H307249 \n \n5 \n \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because he has taken no further action in \npursuit  of it (including  appearing  at  the December  5,  2024, hearing  to  argue \nagainst its dismissal)  since the entry  of  the  Change-of-Physician  Order  on \nFebruary 13, 2024.  Thus, the evidence preponderates that dismissal is warranted \nunder  Rule  13.  Because  of  this  finding,  the  argument  made  under § 11-9-\n702(a)(4) will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nCARTER – H307249 \n \n6 \n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7643,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H307249 JENNIFER N. CARTER, EMPLOYEE CLAIMANT BAPTIST HEALTH, SELF-INSURED EMPLOYER RESPONDENT CLAIMS ADMIN. SVCS., THIRD-PARTY ADM’R RESPONDENT OPINION FILED DECEMBER 5, 2024 Hearing before Administrative Law Judge O. Milton Fine II on December 5, 2024, in L...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:45:12.164Z"},{"id":"alj-H406828-2024-12-05","awccNumber":"H406828","decisionDate":"2024-12-05","decisionYear":2024,"opinionType":"alj","claimantName":"Donald Taft","employerName":"10 Roads Express, LLC","title":"TAFT VS. 10 ROADS EXPRESS, LLC AWCC# H406828 December 05, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TAFT_DONALD_H406828_20241205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TAFT_DONALD_H406828_20241205.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H406828 \n \n \nDONALD L. TAFT,  \nEMPLOYEE                                                                                                              CLAIMANT \n \n10 ROADS EXPRESS, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nGALLAGHER BASSETT SERVICES, INC., \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED DECEMBER 5, 2024 \n \nHearing conducted on Wednesday,   December   4, 2024, before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in \nLittle Rock, Pulaski County, Arkansas. \n \nThe claimant’s attorney, the Honorable Mark Alan Peoples, the Peoples Law Firm, Little Rock, \nPulaski County, Arkansas, waived appearance at the hearing.  \n \nThe respondents were represented by the Honorable Rick Behring, Jr., Newkirk & Jones, Little \nRock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Wednesday, December 4, 2024, to determine whether this claim \nshould  be  dismissed  for  lack  of  prosecution  pursuant  to Commission Rule  099.13  (2024 Lexis \nReplacement). \n       The  claimant herein is represented  by  counsel, the  Honorable Mark  Alan  Peoples. On \nNovember  18,  2022,  the  respondents  filed  a  motion  and  incorporated  brief  in  support  thereof \nrequesting this claim be dismissed without prejudice for lack of prosecution (MTD). In compliance \nwith the applicable law both the claimant and his attorney of record, Mr. Peoples, were provided \ndue and legal notice of the respondents’ MTD as well as the date, time, and location of the subject \n\nDonald L. Taft, AWCC No. H406828 \n2 \n \nhearing. Immediately thereafter, by email dated November 19, 2024, the claimant’s attorney \nresponded to the MTD as follows: “Claimant does not oppose dismissal, provided it is w/o \nprejudice. We will ask to be excused from any hearing on this Motion.” (Commission Exhibit 1). \nThe  ALJ  granted  Mr.  Peoples’s  request  to  be  excused  from  attending  the  subject  hearing. \n(Comms’n Ex. 2). Consequently, the claimant’s attorney is deemed to have waived appearance at \nthe hearing on the claimant’s behalf.  \n         Although the claimant works for the respondent-employer, 10 Roads Express, LLC, which \nhas  an  operation  in  North  Little  Rock,  Arkansas, he  is  a  resident  of  Florida and was  injured  in \nGeorgia. Consequently, the claimant had a choice of law concerning the jurisdiction in which he \nchose to file his workers’ compensation claim. It appears he chose to file his claim in Florida and \nto apply for and to receive benefits pursuant to Florida law. The respondents accepted his injury \nas compensable and paid medical and indemnity benefits based on Florida law; however, for some \nreason a Form AR-C was filed on the claimant’s behalf in Arkansas. (Respondents’ Exhibit 1). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion \nto dismiss. Rather than recite a detailed analysis of the record, suffice it to say the preponderance \nof  the  evidence  introduced  at  the  hearing and  contained  in  the  record conclusively  reveals  the \nclaimant has chosen not to actively prosecute his claim at this time. \n\nDonald L. Taft, AWCC No. H406828 \n3 \n \n        Therefore,  after  a thorough  consideration  of  the  facts,  issues,  the applicable  law, the \nrepresentations  of credible counsel, and  other relevant matters  of  record,  I  hereby  make  the \nfollowing: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed due and legal notice of the respondents’ MTD without prejudice \nand  incorporated  brief  in  support  thereof filed with  the  Commission  on November  18, \n2024,  as  well  as notice  of the date, time,  and  place of  the  subject  hearing, the  claimant \nthrough his attorney advised he had no objection to the dismissal provided the dismissal \nwas in fact without prejudice, and he requested to be excused from attending the subject \nhearing, which request the ALJ granted. \n \n3. The claimant is a  Florida resident,  and his work-related injury occurred in Georgia. The \nclaimant chose to apply for and to receive workers’ compensation benefits pursuant to \nFlorida law. The respondents accepted the claimant’s injury as compensable and have paid \nmedical and indemnity benefits in accordance with Florida law. To date the claimant has \nchosen not to prosecute a workers compensation claim in Arkansas. \n \n4. Therefore, the respondents’ MTD without prejudice filed November 18, 2024, should be \nand  hereby is GRANTED;  and  this  claim is  dismissed  without  prejudice  to  its  refiling \npursuant to the deadlines prescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and \nCommission Rule 099.13. \n \n        This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \nMP/mp \n\nDonald L. Taft, AWCC No. H406828 \n4 \n \n \n \nMP/mp \n \n \n \n \n \n \n \nMP/mp","textLength":6518,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H406828 DONALD L. TAFT, EMPLOYEE CLAIMANT 10 ROADS EXPRESS, LLC, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ GALLAGHER BASSETT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED DECEMBER 5, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:14.319Z"},{"id":"alj-H304985-2024-12-04","awccNumber":"H304985","decisionDate":"2024-12-04","decisionYear":2024,"opinionType":"alj","claimantName":"Eddie Johnson","employerName":"Sca Pharmaceuticals Holdings, Inc","title":"JOHNSON VS. SCA PHARMACEUTICALS HOLDINGS, INC. AWCC# H304985 December 04, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JOHNSON_EDDIE_H304985_20241204.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_EDDIE_H304985_20241204.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H304985 \n \n \nEDDIE M. JOHNSON,   \nEMPLOYEE                                                                                                              CLAIMANT \n \nSCA PHARMACEUTICALS HOLDINGS, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nTRAVELERS INDEMNITY CO./ \nTHE TRAVELERS INDEM. CO., \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED DECEMBER 4, 2024 \n \nHearing conducted on Tuesday, December 3, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant was represented by the Honorable C. Michael White, The White Law Firm, of Little \nRock, Pulaski County, Arkansas. \n \nThe respondents were represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Tuesday,  December 3, 2024, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n       The respondents filed a letter motion dated September 30, 2024, with the Commission which \nfor some reason was file-marked October 16, 2024 (MTD), requesting this claim be dismissed for \nlack of prosecution pursuant to the aforementioned statute and Commission rule. (Respondents’ \nExhibit 1 at 10). The claimant’s attorney immediately responded via email advising the claimant \n\nEddie M. Johnson, AWCC No. H304985 \n2 \n \nhad no objection to the respondents’ request for a dismissal of the claim without prejudice. \n(Claimant’s Exhibit 1). \n       Thereafter,  in  compliance  with  the  applicable  law  both  the  claimant  and  her  attorney  were \nprovided due and legal notice of the respondents’ MTD as well as the date, time, and location of \nthe subject hearing. The claimant’s attorney appeared  in  person  at  the  hearing  and  explained  in \nsome detail on the record why the claimant did not object to the request for dismissal. In summary, \nthe claimant’s attorney explained the claimant’s carpal tunnel problems were preexisting; that her \nhealth insurance had paid her medical bills; she had applied for and received short-term disability \n(STD) benefits while she was off work; and that she has now returned to work for the respondent-\nemployer. (Hearing Transcript; CX1; RX1). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion \nto dismiss. Rather than recite a detailed analysis of the record, suffice it to say the preponderance \nof  the  evidence  introduced  at  the  hearing and  contained  in  the  record conclusively  reveals  the \nclaimant has not requested a hearing within the last six (6) months, and she has taken no steps to \nprosecute her claim for  the  reasons  her  attorney  clearly  articulated  on  the  record  at  the  subject \nhearing. Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the applicable  law, the \nrepresentations of highly credible counsel, and other relevant matters of record, I hereby make the \nfollowing: \n\nEddie M. Johnson, AWCC No. H304985 \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having been advised  of  and mailed due  and  legal  notice  of the respondents’ letter \nMTD without prejudice dated September 30, 2024 (which was file-marked as having been \nreceived  by the  Commission  on or  about  October  16,  2024), as  well  as having  received \nnotice of the date, time, and place of the subject hearing, the claimant’s attorney appeared \nin person on the claimant’s behalf at the hearing, and reiterated and explained why the \nclaimant had no objection to the respondents’ MTD without prejudice. \n \n3. The claimant has not requested a hearing within the last six (6) months, and she has not \nprosecuted her claim for the reasons her attorney explained in some detail on the record at \nthe subject hearing. \n \n4. Therefore, the respondents’ letter MTD without prejudice filed October 16, 2024, should \nbe and hereby is GRANTED; and this claim is dismissed without prejudice to its refiling \npursuant to the deadlines prescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and \nCommission Rule 099.13. \n \n        This Order shall not be construed to prohibit the claimant, her attorney, any attorney she may \nretain in the future, or anyone acting legally and on her behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \nMP/mp \n \n \n \n\nEddie M. Johnson, AWCC No. H304985 \n4","textLength":6016,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304985 EDDIE M. JOHNSON, EMPLOYEE CLAIMANT SCA PHARMACEUTICALS HOLDINGS, INC., EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO./ THE TRAVELERS INDEM. CO., CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED DECEMBER 4, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":["carpal tunnel"],"fetchedAt":"2026-05-19T22:45:05.921Z"},{"id":"alj-H301762-2024-12-04","awccNumber":"H301762","decisionDate":"2024-12-04","decisionYear":2024,"opinionType":"alj","claimantName":"Matt Rake","employerName":"Maverick Transportation, LLC","title":"RAKE VS. MAVERICK TRANSPORTATION, LLC AWCC# H301762 December 04, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RAKE_MATT_H301672_20241204.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RAKE_MATT_H301672_20241204.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301762 \n \n \nMATT A. RAKE,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nMAVERICK TRANSPORTATION, LLC, \nSELF-INSURED,  \nEMPLOYER                                                                                                         RESPONDENT \n                                                                                                                                                                                                                                                                                                                            \nCORVEL ENTERPRISE COMP, INC., \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                 \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED DECEMBER 4, 2024 \n \nHearing conducted on Tuesday, December 3, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe  claimant,  Mr. Matt  Rake,  of  Poteau,  LeFore County, Oklahoma, failed  and/or  refused  to \nappear at the hearing.  \n \nThe  respondents were represented  by  the  Honorable David  C.  Jones,  Newkirk  &  Jones, Little \nRock, Pulaski County, Arkansas. \n \n \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Tuesday, November 3, 2024, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n       The claimant herein previously was represented by counsel, the Honorable Laura Beth York \nof Rainwater, Holt & Sexton. By Full Commission order filed June 25, 2024, the Full Commission \ngranted Ms. York’s request to withdraw as the claimant’s counsel. Thereafter, on September 23, \n\nMatt A. Rake, AWCC No. H301672 \n2 \n \n2024, the respondents filed a motion and brief in support thereof requesting this claim be dismissed \nfor lack of prosecution (MTD) pursuant to the aforementioned statute and Commission rule. \n        In compliance with the applicable law the claimant was provided due and legal notice of the \nrespondents’ MTD, as well as the date, time, and location of the subject hearing, which he received \non September 30, 2024. (Commission’s Exhibit 1). The claimant did not respond in writing to the \nrespondents’ motion in  any  way,  and he failed  and/or  refused  to  appear at  the  subject  hearing. \nRespondents’  counsel  stated  at  the  hearing  the  respondents’  had  accepted  this  claim  as \ncompensable;  paid  all  appropriate  medical  and  indemnity  benefits  to  date;  and  advised  upon \ninformation and belief the claimant had returned to work, apparently for an employer other than \nthe respondent-employer herein. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. (Hearing Transcript; Comms’n Ex. 1; Respondents’ Exhibit 1). \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion \nto dismiss. Rather than recite a detailed analysis of the record, suffice it to say the preponderance \nof  the  evidence  introduced  at  the  hearing and  contained  in  the  record conclusively  reveals  the \nclaimant has failed and/or refused to either request a hearing within the last six (6) months, and he \nhas taken no steps whatsoever to prosecute this claim. \n\nMatt A. Rake, AWCC No. H301672 \n3 \n \n        Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the applicable  law, the \nrepresentations  of credible counsel, and  other relevant matters  of  record,  I  hereby  make  the \nfollowing: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed due and legal notice of the respondents’ MTD without prejudice \nand brief in support thereof filed with the Commission on September 23, 2024, as well as \nnotice of the date, time, and place of the subject hearing, the claimant failed and/or refused \nto respond in any way to the respondents’ letter MTD and failed and/or refused to appear \nat the hearing. Therefore, the claimant is deemed to have waived his right to a hearing on \nthe respondents’ MTD. \n \n3. The claimant has not requested a hearing within the last six (6) months, and he has failed \nand/or refused to prosecute this claim. \n \n4. Therefore, the respondents’ MTD without prejudice filed September 23, 2024, should be \nand  hereby is GRANTED;  and  this  claim is  dismissed  without prejudice  to  its  refiling \npursuant to the deadlines prescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and \nCommission Rule 099.13. \n \n        This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \nMP/mp \n\nMatt A. Rake, AWCC No. H301672 \n4","textLength":6136,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301762 MATT A. RAKE, EMPLOYEE CLAIMANT MAVERICK TRANSPORTATION, LLC, SELF-INSURED, EMPLOYER RESPONDENT CORVEL ENTERPRISE COMP, INC., CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED DECEMBER 4, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:45:07.993Z"},{"id":"alj-H302738-2024-12-04","awccNumber":"H302738","decisionDate":"2024-12-04","decisionYear":2024,"opinionType":"alj","claimantName":"Marvin Roberson","employerName":"Lakeshore Recycling","title":"ROBERSON VS. LAKESHORE RECYCLING AWCC# H302738 December 04, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ROBERSON_MARVIN_H302738_20241204.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROBERSON_MARVIN_H302738_20241204.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H302738 \n \nMARVIN ROBERSON, Employee CLAIMANT \n \nLAKESHORE RECYCLING, Employer RESPONDENT \n  \nAMERICAN ZURICH INS. CO., Carrier RESPONDENT \n \n OPINION/ORDER FILED DECEMBER 4, 2024  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Harrison, Boone \nCounty, Arkansas. \n \nClaimant represented   by CHRISTOPHER   S.   MOBERG,   Attorney, Springfield, Missouri; \nalthough not present at hearing. \n \nRespondent represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn December  27,  2023, Christopher  Moberg, claimant’s attorney, filed a  Form AR-C \nrequesting various compensation benefits in which he alleged injuries to his head, right shoulder, \nribs, and spleen; however, no hearing was requested. No further action was taken in this claim. \nOn August  12,  2024,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this  claim  be \ndismissed for lack of prosecution. A hearing was scheduled for November 7, 2024. Notice of that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on September  12, \n2024. United States Postal Department records indicate that claimant received and signed for the \nnotice  on  September  19,  2024.  Despite  having  received  notice  of  the  scheduled  hearing,  the \nclaimant failed to appear at the hearing. \n\nRoberson – H302738 \n2 \n \nMr. Moberg indicated by email of a letter dated August 12, 2024, that he would waive his \nappearance at the hearing and further indicated that he had no objection to the Motion to Dismiss \n“WITHOUT prejudice.”    \n After my review of respondent’s Motion to Dismiss, Mr. Moberg’s response thereto that \nhe had  no  objection  to  the  motion  to  dismiss  without  prejudice,  and  the claimant’s failure  to \nappear  at  the  scheduled  hearing, as  well  as all  other  matters  properly  before  the  Commission,  I \nfind that respondent’s Motion to Dismiss this claim should be and hereby is granted pursuant to \nA.C.A. §11-9-702(a)(4).  This dismissal is without prejudice.     \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2343,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H302738 MARVIN ROBERSON, Employee CLAIMANT LAKESHORE RECYCLING, Employer RESPONDENT AMERICAN ZURICH INS. CO., Carrier RESPONDENT OPINION/ORDER FILED DECEMBER 4, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Harrison, Boone County, Arkansas....","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:45:10.090Z"},{"id":"alj-H301823-2024-12-03","awccNumber":"H301823","decisionDate":"2024-12-03","decisionYear":2024,"opinionType":"alj","claimantName":"Nicholas Dooley","employerName":"Lowes Home Centers, Inc","title":"DOOLEY VS. LOWES HOME CENTERS, INC. AWCC# H301823 & H307126 December 03, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DOOLEY_NICHOLAS_H301823_H307126_20241203.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DOOLEY_NICHOLAS_H301823_H307126_20241203.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301823 & H307126 \n \nNICHOLAS DOOLEY, EMPLOYEE        CLAIMANT \n \nLOWES HOME CENTERS, INC., \nEMPLOYER                                                                RESPONDENT \n \nSEDGWICK CMS, CARRIER      RESPONDENT \n \nOPINION FILED DECEMBER 3, 2024 \nHearing before Administrative Law Judge James D. Kennedy in Mountain Home, \nArkansas on November 20, 2024. \nClaimant is pro se and failed to appear. \nRespondents are represented by their attorney, Dillion Cordel, of Anderson, \nMurphy & Hopkins. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on November 20, 2024, in Mountain \nHome, Arkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct. The claimant was pro se and failed to appear for the hearing. The Claimant filed an \nAR-C on October 27, 2023, where he alleged, he had sustained a hernia in the course of \nhis employment  on  March  3,  2023, and  the  Respondents  accepted  the  injury  as \ncompensable and paid appropriate benefits. The Claimant then filed a second AR-C on \nOctober 27, 2023, again alleging a hernia and the respondents denied the second hernia \nclaim in its entirety.  \n  The claimant moved for a change of physician from Dr. Jennifer Foster to Robert \nShaw. The change of physician appointment was set for June 11, 2024, reset for June \n18,  2024,  reset  again  for  June  25,  2024,  and  finally  reset  for  July  19,  2024,  all  at  the \n\nNicholas Dooley – H301823 & H307126 \nClaimant’s request, and the Claimant did not appear for any appointment, including the \nfinal  appointment  set  for  July  19,  2024,  and  the Claimant  did  not  call  or provide  an \nexplanation in regard to not appearing. \n The claimant’s attorney filed a Motion to Withdraw, and the Motion was granted. \nNo  action  has  been  taken by  the  claimant to  pursue  this  matter  since  the  filing  of the \nrequest  for  a  change  of  physician, and  no  hearing  request  or  further  action  has  been \ntaken by the claimant in regard to this matter in over six (6) months. A Motion to Dismiss \nwas filed by the respondents in this matter on August 5, 2024. \n Appropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was  set  for November 20,  2024,  in Mountain  Home,  Arkansas. The \nclaimant did not file a response and failed to appear on the hearing date. At the time of \nthe hearing, Dillion Cordell appeared on behalf of the Respondents and asked that the \nmatter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondent, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3325,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301823 & H307126 NICHOLAS DOOLEY, EMPLOYEE CLAIMANT LOWES HOME CENTERS, INC., EMPLOYER RESPONDENT SEDGWICK CMS, CARRIER RESPONDENT OPINION FILED DECEMBER 3, 2024 Hearing before Administrative Law Judge James D. Kennedy in Mountain Home, Arkansas on Novembe...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1","denied:1"],"injuryKeywords":["hernia"],"fetchedAt":"2026-05-19T22:44:59.699Z"},{"id":"alj-H303140-2024-12-03","awccNumber":"H303140","decisionDate":"2024-12-03","decisionYear":2024,"opinionType":"alj","claimantName":"Julie Moore","employerName":"Greenbrier Nursing & Rehab Cntr","title":"MOORE VS. GREENBRIER NURSING & REHAB CNTR. AWCC# H303140 December 03, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MOORE_JULIE_H303140_20241203.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOORE_JULIE_H303140_20241203.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H303140 \n \nJULIE MOORE, EMPLOYEE        CLAIMANT \n \nGREENBRIER NURSING & REHAB CNTR., EMPLOYER        RESPONDENT \n     \nINDEMNITY INS. CO. OF N. AMERICA, CARRIER/ \nESIS, INC., TPA                  RESPONDENT \n \n \n \nOPINION FILED 3 DECEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 4 September 2024 in Little Rock, Arkansas. \n \nRainwater Holt & Sexton, Ms. Laura Beth York, appeared for the claimant. \n \nNewkirk & Jones, Mr. Eric Newkirk, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 4 September 2024 in Little Rock, Arkansas, \nafter the parties participated in a prehearing telephone conference on 28 May 2024. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on the day of the conference.  \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/TPA relationship existed at all relevant times, including \non 29 April 2023. \n \n3.  The respondents have controverted this claim in its entirety. \n \nThe Order stated the following ISSUES TO BE LITIGATED: \n\nJ. MOORE- H303140 \n2 \n \n1. Whether the claimant sustained a compensable injury to her back/spine and \nright hip\n1\n by specific incident on 29 April 2023. \n \n2. Whether the claimant is entitled to medical and indemnity benefits associated \nwith a compensable injury. \n \n3. The applicable average weekly wage should the claimant be found to have \nsustained a compensable injury.\n2\n \n \n4.  Whether the claimant is entitled to an attorney’s fee. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire \nresponses, were incorporated into the Prehearing Order. In her prehearing questionnaire, \nthe claimant contended that she sustained a compensable injury while transporting a very \nheavy patient in a rolling bed that was very difficult to control, causing pain in her lower \nback, hip, and buttocks. She subsequently obtained an MRI scan that showed disc bulges in \nher lumbar spine. She clarified, however, through counsel at the beginning of the hearing \nthat she was not transporting a patient in the bed. Rather, she was attempting to swap out \nthe patient’s broken bed for another when she injured herself. She contends that she \nsuffered a compensable injury in the course and scope of her employment and is, therefore, \nentitled to the accompanying benefits. \nThe respondents, on the other hand, contend that the claimant cannot establish a \ncompensable injury occurring on 29 April 2023. They assert that no one witnessed an \ninjury-causing incident on 29 April 2023 because no incident occurred. Alternatively, the \nrespondents contend that they are entitled to any offsets available under applicable law. \n \n1\n The Prehearing Order included only a compensable injury to the claimant’s back/spine. \nThe issue of whether the claimant also sustained a compensable injury to her right hip was \nadded without objection at the outset of the hearing. See TR at 12.  \n2\n The Prehearing Order anticipated the parties agreeing on an average weekly wage, but at \nthe time of the hearing, it was agreed that the applicable wage amount would, instead, be \nan Issue litigated at the hearing. See TR at 10, 12. \n\nJ. MOORE- H303140 \n3 \n \n Several WITNESSES testified at the hearing. The claimant testified on her own \nbehalf. The respondents called Ms. Becky Wheeler (the nurse training the claimant on 29 \nApril 2023), Ms. Amanda Ivy (the charge nurse on 29 April 2023), and Ms. Shannon Casey \n(a Human Resources (HR) officer for the respondent-employer). \nThe EVIDENCE considered  in this claim consisted of the hearing testimony along with \nthe following EXHIBITS: Commission’s Exhibit No 1 (the Prehearing Order), Claimant’s \nExhibit No 1 (four index pages and 80 pages of medical records), Claimant’s Exhibit No 2 (an \nindex page and 39 pages of text message print-outs), and Claimant's Exhibit No 3 (two \npages of facility work/shift scheduling sheets (highlighting was included in the originals)); \nRespondents’ Exhibit No 1 (an index page and 64 pages of non-medical records) and \nRespondents’ Exhibit No 2 (an index page and 33 pages of medical records). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole and having heard testimony from the \nwitnesses, observing their demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n 2. The previously-noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that she \nsuffered compensable injuries to her back/spin or hip by specific incident. \n \n4.   The claimant, thus, failed to prove by a preponderance of the evidence that \nshe is entitled to the benefits sought. \n \n5. The issue of determining the claimant’s average weekly wage is moot. \n \n6. The claimant failed to prove by a preponderance of the evidence that she is \nentitled to an attorney’s fee. \n \n \n \n\nJ. MOORE- H303140 \n4 \n \nIII.  HEARING TESTIMONY  \nClaimant Julie Moore \n The claimant testified that 29 April 2023 was her first shift working as a trainee \nnursing assistant at the respondent-employer’ nursing home. She was assigned to the night \nshift with Ms. Becky Wheeler as her trainer. Some time into the shift, the two were made \naware of a broken footboard at the end of one of a patient’s beds. \n According to the claimant, she and Ms. Wheeler moved the patient from the bed and \nplaced her in a chair using a Hoyer Lift. She then stated that Ms. Wheeler stayed with the \npatient while she was responsible for moving the empty bed down to another hallway and \nbringing back a new bed to replace the first one. She testified that the bed was difficult to \nkeep rolling straight down the hallway and that she ran the bed into the nurse’s station by \naccident. \nSo I took the bed out of the room. Well, me and Becky, actually, got it out \nof the room. I started down the hallway... Come to find out, when I started \nmoving the bed, the bed was like moving sideways and I couldn’t keep it \nstraight. So I guess, you could say, I fought with the bed up until I got to the \nnurse’s station. I couldn’t roll the bed straight. It was like—I don’t know how \nto describe it. The whole bed was broke, like broke down. I don’t know how to \ndescribe that. It just wouldn’t roll straight. It wouldn’t cooperate; so I fought \nwith the bed and I ended up hitting the nurse’s station. The bed squirreled, \nlike I said, it was hard to control. I didn’t see anybody on the floor or I’d \nasked for help, but I didn’t see anybody. \nWhen I hit—except there was a nurse or I have to assume she was a \nnurse. I don’t really know what she was at the nurse’s station, because it was \nmy first night, I don’t know names and faces yet. I hit the nurse’s station. She \nasked me was I okay. I said, “No.” We were talking about—briefly about, you \nknow, “Sorry I hit the nurse’s station. I didn’t mean to.” \n \n[TR at 33-34.] \n The claimant explained that the layout of the facility was like a wheel, with the \nnurse’s station at the center and the hallways with patient rooms like spokes running form \nthe center of the wheel. When the bed hit the nurse’s station, “it stopped. When a bed hits a \nsolid thing, it stops, apparently.” [TR at 40.]  \n\nJ. MOORE- H303140 \n5 \n \nThe claimant realized at that time that she felt a burning sensation in her buttocks. \nThe claimant described some dialogue back-and-forth with the nurse at the station before \ngoing on about moving the empty bed down the hall: \n The nurse said, “Are you okay?” I said, “No, something’s wrong,” and I \nsaid, “Well, what do I do with the bed?” ‘Cause, then, I thought you know, \n“Hey, this all is gonna stop.” Her, assuming she’s a nurse, you know, we’re \ngoing to figure something out, ‘cause I shouldn’t have had this pain. ‘Cause I \ndidn’t—I’d never had it before. I didn’t know how to describe it. I said, \nstinging at first, but then, I told her it was like a burning, like you pulled \nsomething. You know, that’s what I was thinking, you know. Anyway, she \nsaid she didn’t know what to do with the bed. I told her I was to take it to 300 \nHall. She said, “Then that’s what you need to do.” So I finished taking it \ndown to 300 Hall, still fighting with it, still arguing with it. I get it down as \nfar as I can. I don’t know, someone come told me, “Becky needs that bed now.” \nSo I go to the room, try to move the bed. \n \n[TR at 40-41.] \n When she arrived at the replacement bed, the claimant testified: \nI get in there. I think, I unlock it. I can’t move it. When I pulled on it, \nthinking it’s unlocked, I pulled on it, and then, I realized, “Oh no, I’m in \ntrouble,” ‘cause then, I start getting a throbbing in my back and in my right \nside. So I don’t know what’s going on. I’m like, “Oh, hang on. No, I’m \nstopping.” And so I left that room and I went and got Becky. I said “Becky, I \ncan’t move the bed. Something is wrong with my back. I hit the nurse’s \nstation.” I tried to explain it to her. But during this time, there was a lot of \ncommotion going on in this room, because when I went in there, we had \nrealized... Unbeknownst to me, there was a emergency going on with a \nresident in the other bed. And so there was a lot of commotion in there. It’s \ncalled a diabetic emergency... So there was a lot of people in there and I was \ntrying to explain to Becky what happened. She’s like, “where’s the bed?” I \nsaid, “I didn’t get it out of the other room,” – the new bed, “out of the other \nroom, because I couldn’t move it.” \n \n[TR at 41-43.] \n After getting the patient’s bed replaced, the claimant stated that she went back to \nthe nurse’s station where she described squatting down “to you know, a squat position and \nwe were talking about me getting hurt, they said, “Well, it’s probably just pulled muscles \nthat you haven’t used.” Which I thought, “Okay, you know, that sounds logical. Yeah, I was \nfighting with the bed.” [TR at 45.] The claimant then said that she was unable to get up \n\nJ. MOORE- H303140 \n6 \n \nuntil the others had left the station. She had to brace against an empty chair to help raise \ninto a standing position. The claimant did not recall any further discussion of the incident \nthrough her shift that night. \n The claimant testified that after her shift, she went home and to bed. She woke up \nin pain and had to have her husband’s help to first get out of bed and then to get up from \nthe toilet. At some point thereafter, she began a text thread with Ms. Shannon Casey, her \nHR contact. See Claimant’s Exhibit No 2.  \n After some discussion with Ms. Casey and others, the claimant eventually presented \nfor covered treatment at ARCare on 4 May 2023. She returned for additional treatment on \n8 May 2023. The claimant was not happy with the treatment had received up to that point, \nso she sought treatment with Baptist Urgent Care. She stated that she wanted to be \nreferred to an orthopedic provider, but that was denied. She learned that her claim was \nbeing denied around that time, so she continued to seek treatment on her own. \n On 12 October 2023, the claimant underwent an MRI scan of her lumbar spine that \nrevealed some disc protrusion at L3-4. She stated that she sometimes feels tingling or \nnumbness in her buttocks and hip. An MRI of her hip was performed on 9 November 2023 \nthat revealed, “a couple of tears and from what I’ve read, I need—my understanding of \nwhat I read, I need a full hip.” [TR at 64.] She said that Dr. Adam Smith then performed \nsome hip injections that were not of significant benefit and eventually recommended \nsurgery.  \n The claimant denied previously seeing a doctor for a back or hip injury. She \nacknowledged a serious motor vehicle accident in the late 1980s that caused her to be \nejected from the vehicle, but she could not remember what injuries she sustained. She also \ndiscussed a previous injury to her toe and trouble with her right leg and knee that she \nrelated possibly to sciatica. The claimant stated that she underwent a nerve conduction \n\nJ. MOORE- H303140 \n7 \n \nstudy, some therapy, and some form of radiofrequency treatment for her leg/knee trouble. \nShe also noted dealing with Plantar Fasciitis while working as an EMT for Pafford in the \npast. But, again, she denied any previous low back or right hip injuries. \n On cross examination the claimant stated that her work for the respondent-\nemployer consisted of a day of orientation and her first shift on 29 April 2023. She \nacknowledged that her employment was probationary during that time. She also \nacknowledged receiving treatment in 2018 for right leg neuropathy, but denied any hip \ninjury or back problems prior to the incident at issue in this claim. \n A:  It seemed like the whole bed had issues. \n Q:  Okay. And that’s what led you to hit the nurse’s station, right? \n A:  Yes. \n Q:  And that’s when everything kind of changed, is that correct? \n A:  Yes. \n Q:  You knew, then, you had hurt yourself, when you hit that nurse’s station? \n A:  Yes. \nQ:  That was the first time up until that—at any point, that you knew that you had \nanything wrong with your low back or your hip or anything of that region, is that \nright? \n A:  Correct. \n \n[TR at 89-90.] \n \n The claimant acknowledged that in her deposition she described the employee that \nshe spoke with at the nurse’s station as the charge nurse. The respondents’ counsel asked \nabout discrepancies in the claimant’s testimony: \n \nQ:  And then, you indicated that you went down the hall and tried to get this other \nbed and that you were having such pain and discomfort that you had to go get Becky \nto come help you? \n A:  Yes. \nQ:  Do you recall telling me different at the deposition that you, actually, were in \nthat room and you were hurting so bad that you had to have them go get Becky to \ncome help you? \nA:  I did try to get somebody to go and after a period of time, I got tired of waiting; so \nI went and got Becky. \nQ:  Okay. So where you told me on page 37 of your deposition that, “She came and \nhelped me and said, ‘What’s wrong,’ I can’t even move this one, this bed.” You’re \nsaying that was after you went and got her instead of her coming to you? \n\nJ. MOORE- H303140 \n8 \n \n A:  Yes. \n Q:  And you said that you complained to the nurse that you had hurt your back? \n A:  I did. \n \n[TR at 91.] She went on to say that she complained about injuring her back at least three \ntimes that night. Discussing the time she spent dealing with the beds, she said that it could \nhave been one or three or ten minutes while the patient was waiting for a replacement bed \nto be brought in.  \nQ:  The whole time this resident is in that Hoyer Lift waiting for you to return with \nthat bed, right? \n A:  Correct. \n \n[TR at 93.] When asked why the replacement bed would not have been brought to the \npatient’s room first, the claimant stated that she was only doing what she was told by Ms. \nWheeler.  \n The claimant testified that Ms. Wheeler definitely saw her walking with an altered \ngait and that she was aware of her injury after hitting the nurse’s station with the bed. \nWhen asked why she did not report running the bed into the nurse’s station as the cause of \nher injury when texting with Ms. Casey, the claimant responded, “Well, I figured she’d call \nme and set up a conversation for me to come in and fill out paperwork and stuff.” [TR at \n96.] She also acknowledged, however, that she did not mention hitting the nurse’s station \nwhen filling out the Form AR-N, Employee’s Notice of Injury. See Respondents’ Exhibit No 1. \n Her cross examination continued with the claimant acknowledging that the Form \nAR-C, Claim for Compensation, that she filled out did not mention a collision with the \nnurse’s station or an injury to her hip. The claimant stated that she told her medical \nproviders about the nurse’s station incident. But when confronted with records stating, \n“Moving bed, the patient in it,” she said that the doctor must have committed an error \nbecause those were not her words. [TR at 99; See Respondents’ Exhibit No 2 at 23.] \n Q:  Okay. And it says, “She noticed pain the next day.” Do you see that? \n\nJ. MOORE- H303140 \n9 \n \n A:  Yes. \nQ:  You didn’t say anything in here about hurting yourself that night or having pain \nthat night or hitting the nurse’s station, did you? \n A:  No. \n Q:  Let’s go to the next time. Maybe you told the next doctor, then...  \nAbout midway down and it says in the history of present illness—can you read what \nit says right there starting with “the patient denies?” \n A:  Where at? \n Q:  “Patient denies...” \nA:  “Patient denies any specific injury. I just know it happened sometime between \n3:00 and 7:00 a.m., but I’m not sure what exactly happened or when it was. It was \nmy first day on the job. I was train...” \n \n[TR at 100.] \n . . .  \nQ:  That’s okay. So you told them you didn’t know when it occurred, what happened, \nand you had no specific injury. Is that what you told them? \n A:  No. \n Q:  So this is wrong? \n A:  It’s kinda wrong. \n \n[TR at 101.] After some further disagreements on what was reported in the records and \nwhat the claimant actually said, the testimony returned to when she was first pushing the \nbed down the hallway. \n Q:  And this was unlike any other bed you’ve ever pushed before, is that fair to say? \n A:  I don’t know how to answer that. \nQ:  Well, it just seems like you’re trying to say—my understanding of it, you’re \ntrying to say you need a total hip replacement now, because of an event, where \nyou’re simply pushing a bed down a hallway. And you’re saying it’s so out of control \nthat you hurt yourself to the point that you got to have a hip replacement now. Is \nthat you’re testimony? \n A:  I don’t know how to answer that one. \n \n[TR at 104-105.] \n On redirect examination the claimant noted that some of her initial paperwork \nincluded a report of an injury to her hip. On recross examination the claimant restated that \nshe knew that she was injured as soon as the bed hit the nurse’s station and that she told \nthe nurse at the station and Ms. Wheeler about her injury. \nRespondents’ Witness Ms. Becky Wheeler \n\nJ. MOORE- H303140 \n10 \n \nMs. Wheeler testified that she is a Certified Nursing Assistant and Medication Aide \nCertified. She was the claimant’s trainer on the night in question. Her testimony on the \nnight’s events differed significantly from the claimant’s: \nA:  ...the nurse came and said, the resident had broken her footboard off her bed, ‘cause \nshe slides down and pushes it. So we went and got—we went down 300 Hall together, \nwe got a new bed, took it down to 100 Hall— \nQ:  And you say “we”? \nA:  Yes. \nQ:  You and Ms. Moore? \nA:  Me and Julie... she was pushing, I was pulling, because the beds are awkward; so \nthey’re long; so two people is normally how we do that. We took the new bed down the \nhall. [The patient was transferred to the new bed.] I was changing her and getting this \nlift sheet from under her and Julie said, I will take the old bed down to the end of the \nhall,” and I said, “No, wait on me.” And I came out and she was already pushing the old \nbed towards the nurse’s station and that’s when I stopped her and said, “We do these \ntogether.” \n \n. . .  \n \nQ:  Okay. Did she indicate in any way, shape, or fashion that she was hurt? \nA:  No. \nQ:  Why was it so important for you to be with her? \nA:  Because I’m a trainer. We don’t allow—we don’t allow trainees to be alone at—\n[trainees] are not allowed to be alone during their training period. \nQ:  And how long does that training period last? \nA:  Three days. \n \n[TR at 114.] \n Ms. Wheeler went on to testify that, training requirements aside, using two people \nto move beds makes maneuvering them less awkward. She said that the claimant made no \ncomplaints to her about pain or discomfort during their shift together and that she did not \nnotice the claimant limping or otherwise acting as if she was injured or uncomfortable. She \nalso took issue with the claimant’s version of the “diabetic emergency” happening in the \nroom with the broken footboard. That other patient, she explained, would complain of \nhaving low blood sugar when she wanted chocolate milk. A nurse noticed the broken \nfootboard when taking the chocolate milk to the other patient and then requested that they \nswitch out the beds, she testified.  \n\nJ. MOORE- H303140 \n11 \n \n On cross examination, Ms. Wheeler addressed the general awkwardness of moving \npatient beds around. \nQ:  Okay. Now, you admitted that the beds in question were very difficult to move, is \nthat correct? \nA:  It’s just because they’re long. They roll fine, it’s just they’re awkward, because \nthey’re long. \n Q:  Okay. \n A:  I mean, they’re beds. \n Q:  Okay. And the bed in question that night, was it difficult to move? \n A:  No. \n \n[TR at 122-123.] \n Explaining more about the bed needing to be replaced, the witness testified that the \nfootboard was knocked loose by the patient sliding down in the bed and using the board to \nkick herself back up in the bed. The footboard being broken did not mean that the \nundercarriage of the bed was damaged or mean that it was more difficult to maneuver.  \n Respondents’ Witness Amanda Ivy \n Ms. Ivy testified that she was working as the charge nurse on 29 April 2023. She did \nnot recall the claimant striking the nurse’s station with a bed or indicating in any way that \nshe had been injured. She said that Ms. Casey was the first to ask anything about the \nclaimant alleging an injury, and she reported that she was not aware of anything. \n Respondents’ Witness Ms. Shannon Casey \n Ms. Casey testified that she works in HR for the respondent-employer. She \nconfirmed that 29 April 2023 was the claimant’s first assigned shift at the facility and that \nshe was a probationary employee at the time, who was not guaranteed work hours or a set \nschedule during the probationary period. She explained that the work schedules in evidence \nrepresented what the claimant and others would have likely covered if the claimant had \ncontinued her work at the facility. \n \n\nJ. MOORE- H303140 \n12 \n \n Claimant on Rebuttal \n The claimant testified again at the end of the proceedings to dispute Ms. Ivy being \nthe nurse who was seated at the nursing station when she ran into it with the bed. She said \nthat she couldn’t recall whom was there at that time, but doubted that it was Ms. Ivy. \n     Medical and Documentary Evidence \n The claimant presented to ARCare on 4 May 2023 and received an off-work note \nexcusing her absence from work until 8 May 2023. Right shoulder and right hip pain were \nnoted. See Claimant’s Exhibit No 1 at 2. The clinic note from that visit, in part, states: \nPatient reports she was bending, stooping and twisting and moving [a] bed \nthe patient in it and that she noticed pain the next day. \n \nSee Respondents’ Exhibit No 2 at 23. \nAccording to another ARCare return-to-work note, she was seen again 8 May 2023 \nwith continued pain in her right shoulder and hip and low back pain. She was to return to \nwork the following day with sedentary restrictions “until evaluated by ortho.” See \nClaimant’s Exhibit No 1 at 3. \n On 15 May 2023, the claimant was seen by Dustin Van Pelt, P.A., at a Baptist \nUrgent Care clinic. That visit note provides: \nNow wanting a second opinion from a different facility. Report injury \noccurred on 04/29/2023, “I was moving bed out of a room and then moved it \ndown to another hall. A little bit later I was squatting down and I thought to \nmyself that I couldn’t get back up. The next day I was so sore and couldn’t \nhardly get out of bed. It was my first day training so I didn’t want [to] leave \nthat night because I didn’t want to get fired.” Patient denies any specific \ninjury. “I just know it happened sometime between 3:00 a.m. to 7:00 a.m. But \nI am not sure what exactly happened or when.” \n \nId. at 4. She was diagnosed with right side sciatica and referred to physical therapy and \northopedics for a possible SI Joint Radio Frequency Ablation. Id. at 5, 6. \n\nJ. MOORE- H303140 \n13 \n \n The claimant returned to the urgent clinic on 23 May 2023 complaining of no \nimprovement in her pain and of her referrals not being set up through her employer’s \nworkers’ compensation carrier. Id. at 8. \n On 22 June 2023, the claimant presented to Conway Orthopedic & Sports Medicine \nCenter (COSMC). She reported right buttock pain after moving a “broken and very difficult \nto maneuver” bed down a hallway and “that she did not fall or suffer a specific injury but \nbegan experiencing pain when she stood up from the forward flexed position she had been \npushing the bed down the hallway.” Id. at 12. X-ray imaging from the visit revealed: \n... moderate to severe L5-S1 disc height loss, large anterior and lateral \nosteophytes L3 with small anterior osteophytes at L5. No actue abnormality \nor fracture. Slight loss of lumbar lordosis. \n \nAP pelvis and lateral view of the right hip obtained today in clinic show \nnormal bony alignment, well-maintained femoral acetabular cartilage \nintervals. Normal soft tissues. \n \nId. at 15. The impression was stated as Lumbar Spondylosis and Right Lumbar \nRadiculopathy. \n  The claimant made an initial visit to a pain management provider on 18 August \n2023, and lumbar epidural steroid injections were ordered. Id. at 22.  \n On 24 August 2023, the claimant returned to COSMC, where a lumbar MRI was \nagain recommended to evaluate for right sided foraminal stenosis. Id. at 27. \n After presenting to OrthoArkansas on 18 September 2023, a lumbar MRI scan was \nrecommended again. That scan was performed on 12 October 2023 and revealed some \ndegenerative changes. Id. at 37. The notes from her follow-up with OrthoArkansas on 16 \nOctober 2023 provide: \nShe has some disc protrusion and lateral recess stenosis worse at L5-S1 on \nthe left. I do not see any acute objective injury on the right side that would \nreally explain her symptoms. She has some lateral recess narrowing and a \nlittle foraminal narrowing at L5-S1 on the right.  \n\nJ. MOORE- H303140 \n14 \n \n... I do not see an obvious objective injury in her spine. She keeps telling me \nthat her pain is really in her hip and she thinks her hip is the issue. \n \nShe was then referred to Dr. Adam Smith for a hip exam and recommended for a \ntransforaminal steroid injection. Id. at 41. \n The claimant first saw Dr. Smith on 26 October 2023, and he assessed persistent \nright hip pain with likely abductor tear. Another MRI was recommended. Id. at 45. \n An MRI scan of the claimant’s hip was performed on 9 November 2023, and Dr. \nSmith discussed the findings with the claimant that day: \nMRI was reviewed and does show arthritic change in the hip with loss of the \njoint space and subchondral sclerosis as well as degenerative labral tearing. \nShe does have some partial tears of her proximal hamstrings and abductors. \n \nAssessment: Right hip osteoarthritis. \n \nId. at 50. \n On 29 February 2024, the claimant returned to Dr. Smith for additional treatment \noptions. They discussed scheduling surgery after she quit smoking for at least two weeks. \nDr. Smith noted: \nWith regards to whether or not this could be related to a work accident I \ncannot say with certainty but she does state that she was not having pain \nbefore [29 April 2023] and only started having pain afterwards so it is likely \nthat at least contributed somewhat. \n \nId. at 54. \n The text messages between the claimant and Ms. Casey show that the claimant first \nsent a message late in the afternoon of Sunday, 30 April 2023, saying that she was sore, \nhaving trouble moving, and felt like she pulled something. See Claimant’s Exhibit No 2. The \nexchange continues with the claimant stating on Tuesday, 2 May 2023, “I think it’s from \npushing and pulling on the bed a resident broke and fighting it to get down the hall.” She \nwent on to state that, “the other bed didn’t want to roll either, it took Becky and I to get it \n\nJ. MOORE- H303140 \n15 \n \ndown the hall and into the room.” Subsequent messages were about seeking treatment and \ncoordinating care. \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the prehearing conference, are outlined above. It \nis settled that the Commission, with the benefit of being in the presence of the witnesses \nand observing their demeanor, determines a witness’ credibility and the appropriate weight \nto accord their statements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 \nS.W.2d 522 (1999).   \nA. The Claimant Failed to Prove by a Preponderance of the Evidence That \nShe Suffered a Compensable Injury by Specific Incident. \n \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving by a \npreponderance of the evidence that she sustained a compensable injury as the result of a \nworkplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). A compensable injury must be \nestablished by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-\n102(4)(D). Objective medical findings are those findings that cannot come under the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Causation does not \nneed to be established by objective findings when the objective medical evidence establishes \nthat an injury exists and other nonmedical evidence shows that it is more likely than not \nthat the injury was caused by an incident in the workplace. Bean v. Reynolds Consumer \nProds., 2022 Ark. App 276, 646 S.W.3d 655, 2022 Ark. App. LEXIS 276, citing Wal-Mart \nStores, Inc. v. VanWagner, supra. \nThe claimant alleges that her injury occurred by specific incident. The claimant \nmust establish four (4) factors by a preponderance of the evidence to prove a specific \nincident injury: (1) that the injury arose during the course of employment; (2) that the \ninjury caused an actual harm that required medical attention; (3) that objective findings \n\nJ. MOORE- H303140 \n16 \n \nsupport the medical evidence; and (4) that the injury was caused by a particular incident, \nidentifiable in time and place. See Cossey v. G. A. Thomas Racing Stable, 2009 Ark. App. \n666, 344 S.W.3d 684. A causal relationship may be established between an employment-\nrelated incident and a subsequent physical injury based on the evidence that the injury \nmanifested itself within a reasonable period of time following the incident, so that the \ninjury is logically attributable to the incident, where there is no other reasonable \nexplanation for the injury. Hall v. Pittman Construction Co., 234 Ark. 104, 357 S.W.2d 263 \n(1962). \nA claimant's testimony is never considered uncontroverted. See Nix v. Wilson World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). The determination of a witness' credibility \nand how much weight to accord to that person's testimony are solely up to the Commission. \nSee White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). The \nCommission must sort through conflicting evidence and determine the true facts. Id. In so \ndoing, the Commission is not required to believe the testimony of the claimant or any other \nwitness, but may accept and translate into findings of fact only those portions of the \ntestimony that it deems worthy of belief. Id. \nHere, the claimant alleges that she injured her back/spine and hip when an empty \nbed she was pushing down a hallway ran into a nurse’s station and suddenly stopped. Her \nversion of the events leading up to and after her being with the bed at the nurse’s station \nvary greatly from those relayed by the two other witnesses who were there that night. The \nclaimant clearly testified that she injured herself when the bed she was pushing hit the \nnurse’s station, that she was immediately aware of her injury or injuries, and that she spoke \nabout injuring herself immediately after it happened and then again later.  \n\nJ. MOORE- H303140 \n17 \n \nThe workplace forms she completed and the notes from her doctor visits, however, \nmake no mention of her being injured by crashing an out-of-control bed into a nurse’s \nstation. Instead, she consistently relayed, more generally, that she seemed to have hurt \nherself at some point when she was moving patient beds. Those later reports do not reflect \nher describing a particular incident the mechanism of injury being a collision with a \nnursing station. \nI do not find that the claimant proved by a preponderance of the evidence that she \nsuffered a compensable injury by way of pushing a bed into a nurse’s station. Nor do I find \nthe claimant’s testimony to be credible.  \nThe claimant’s testimony and the evidence are filled with inconsistencies. First, she \nseems to claim that the first bed was either very difficult to move or, alternatively, moving \nwildly out of control and in such a way that it impacted the nursing station with enough \njarring force that she injured her back, her shoulders, and her hip. She described pushing it \n“hunkered down” and with “some momentum.” But when asked plainly how she and the \nbed could have been “so out of control that you hurt yourself to the point that you got to \nhave a hip replacement now,” she unconvincingly responded, “I don’t know how to answer \nthat one.” \nAlso, the claimant testified that she was unsure about whom she spoke with at the \nnurse’s station after supposedly running into it with a bed, saying that she assumed the \nperson could have been a nurse, but because it was her first night, she didn’t know “names \nand faces” yet [TR at 34]. She then acknowledged, however, that at her deposition she said \nthat the night’s charge nurse was the person she spoke with. Ms. Ivy credibly testified that \nshe was the charge nurse that night, that she never saw the claimant run a bed into the \nnurse’s station, and that the claimant never spoke to her about any injury. \n\nJ. MOORE- H303140 \n18 \n \nSimilarly, the claimant testified at the hearing that when she couldn’t get the \nreplacement bed to move, she went looking for Ms. Wheeler’s help. But she acknowledged \nthat at her deposition she testified that she had asked others to go find Ms. Wheeler for her \nbecause she was in pain. It’s unclear exactly when or to whom she attributed a statement \nabout “Becky needs that bed now,” but that is another uncorroborated exchange that does \nnot fall neatly into her supposed timeline. \nThe claimant testified that she spoke about injuring herself with Ms. Wheeler and \nothers at least three times- when she hit the station, when she first told Ms. Wheeler she \nneeded help with the second bed, and when they all gathered afterwards at the nursing \nstation. Ms. Wheeler testified credibly that the claimant did not make any report or an \ninjury or appear injured at any point during their shift together. None of the claimant’s \nsupposed reports of injuries or discussions of injuries were corroborated. The claimant’s \nversion of the first conversation with Ms. Wheeler is also suspect, in that she testified that \nMs. Wheeler left the bedside of a patient in a “diabetic emergency” to retrieve and bring \nanother bed into an already crowded room with “a lot of commotion” and “a lot of people in \nthere.” It would strain a common sense of patient care priorities to accept that occurring \nduring a patient care emergency. \nMs. Wheeler’s testimony and version of events, conversely, seems credible. She \nexplained that they first learned about the bed being broken after another nurse delivered \nchocolate milk to a patient who said her blood sugar felt low. The claimant was supposed to \nstay with Ms. Wheeler throughout the shift, and they both brought a replacement bed to \nthe room before lifting the patient away from the broken bed. After the beds were \nexchanged, the claimant started to move the broken bed and was stopped by Ms. Wheeler \nwithout any apparent incident. To Ms. Wheeler’s knowledge, and to that of Ms. Ivy, the \nshift continued on unremarkably. Again, a common sense approach to replacing a broken \n\nJ. MOORE- H303140 \n19 \n \nbed for a bed-bound patient tracks with Ms. Wheeler’s version of events, where they first \nbrought over a bed to replace the broken one. \nThe claimant attributed her story about the bed hitting the nurse’s station not \nappearing in the medical records to error on the part of her providers. She suggested the \nsame for a note indicating that she was injured while wheeling a bed with a patient in it. \nFinally, even if the claimant could provide credible evidence to meet her burden on \nthe incident actually happening, she failed to present objective findings of an injury. See \nHall, supra.  \nIn short, the claimant failed to provide a preponderance of evidence in support of her \nversion of how she suffered compensable injuries to her back/spine or hip by specific \nincident. Her claim must fail for that reason. \nB. The Issue of the Applicable Average Weekly Wage is Moot. \n \nHaving found that the claimant failed to meet her burden on proving that a \ncompensable injury was sustained, determining her average weekly wage for the purpose of \nbenefits is moot. \nC. The Claimant Failed to Prove by a Preponderance of the Evidence that She \nis Entitled to an Attorney’s Fee. \n \nFor the reasons explained above, the claimant has failed to prove that she is entitled \nto an attorney’s fee. \nV.  ORDER \n Consistent with the above Findings of Fact and Conclusions of Law, this claim for \ninitial benefits is DENIED AND DISMISSED. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":37746,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H303140 JULIE MOORE, EMPLOYEE CLAIMANT GREENBRIER NURSING & REHAB CNTR., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF N. AMERICA, CARRIER/ ESIS, INC., TPA RESPONDENT OPINION FILED 3 DECEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC)...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:4"],"injuryKeywords":["back","hip","lumbar","knee","shoulder","fracture","strain"],"fetchedAt":"2026-05-19T22:45:01.786Z"},{"id":"alj-H400804-2024-12-03","awccNumber":"H400804","decisionDate":"2024-12-03","decisionYear":2024,"opinionType":"alj","claimantName":"Javier Saucedo","employerName":"Rbd Holdings LLC","title":"SAUCEDO VS. RBD HOLDINGS LLC AWCC# H400804 December 03, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Saucedo_Javier_H400804_20241203.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Saucedo_Javier_H400804_20241203.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H400804 \n \nJAVIER VILLAR SAUCEDO, \nEMPLOYEE                                                                                                              CLAIMANT \n \nRBD HOLDINGS LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nOLD REPUBLIC INS. CO., \nINSURANCE CARRIER                                                                                     RESPONDENT  \n \nCCMSI, \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED DECEMBER 3, 2024 \n \nHearing conducted on Friday, November 8, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Mr. Javier Villar Saucedo, Pro Se, of Blytheville, Arkansas, did not appear in person \nat the hearing.  \n \nThe Respondents were represented by the Honorable Eric Newkirk, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents.  \nA hearing on the motion was conducted on November 8, 2024, in Little Rock, Arkansas.  Claimant, \naccording to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a driver. The date for Claimant’s \nalleged injury was on January 8, 2024. He reported his injury to Respondent/Employer on February \n6, 2024. Respondents admitted Respondents’ Exhibit 1, pleadings, consisting of 28 pages. Also \nadmitted into evidence was a blue-backed copy of certified return receipt dated October 16, 2024, \nand a copy of certified return receipt dated September 25, 2024, as discussed infra. \n\nSAUCEDO, AWCC No. H400804 \n \n2 \n \nThe record reflects on February 2, 2024, a Form AR-C was filed with the Commission, by \nthen-attorney Mark Peoples, purporting that Claimant worked for Big River Steel when he injured \nhis finger. On February 8, 2024,  a  Form  AR-1  was  filed  with  the  Commission  purporting  that \nClaimant’s type of injury to his finger was a strain. Also on February 8, 2024, a Form AR-2 was \nfiled by  Respondents denying  compensability and  the  existence  of  an  employer/employee \nrelationship. Claimant’s then-counsel, Mark Peoples, filed an amended Form AR-C on February \n7,  2024, naming RBD  Holdings,  LLC, as Claimant’s employer.  Respondent/Employer RBD \nHoldings, LLC, filed a Form AR-1 on February 16, 2024, acknowledging  alleged finger injury. \nOn February 16,  2024, Respondents, RBD  Holdings, LLC also filed  a  Form  AR-2 denying \ncompensability  and  the  existence  of  an  employer/employee  relationship. Hereinafter  the  term \n“Respondents” shall include  RBD  Holdings, LLC  as  the Respondent/Employer,  not  Big  River \nSteel. Big River Steel filed a Form AR-4, on February 20, 2024, closing its file on Claimant. \nOn May 6, 2024, Claimant’s counsel filed a Motion to Withdraw as Counsel. The reason \nfor the Motion was Claimant’s consistent lack of communication with his counsel. The  Full \nCommission granted Claimant’s counsel Motion on May 23, 2024.  \nThe Respondents next filed a Motion to Dismiss on August 7, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The  Claimant  was  sent,  certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss from my office on September 10, 2024, to his last known address. \nThe  certified motion notice was returned  to  the  Commission on  the  September  25,  2024. The \nmotion notice was also sent regular U.S. Mail and was not returned to the Commission. Claimant \ndid not respond  to  the  Motion,  in  writing,  as  required. Thus,  in  accordance  with  applicable \nArkansas law, the Claimant was mailed due and proper legal notice of Respondents’ Motion to \nDismiss hearing date to his current address of record via the United States Postal Service (USPS), \n\nSAUCEDO, AWCC No. H400804 \n \n3 \n \nFirst Class Certified Mail, Return Receipt Requested, and regular First-Class Mail, on October 4, \n2024. The certified notice was returned to the Commission on October 16, 2024.  The first-class  \nnotice sent was not returned.  The hearing took place on November 8, 2024. And as mentioned \nbefore, the Claimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the November 8, \n2024, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \n\nSAUCEDO, AWCC No. H400804 \n \n4 \n \nConsistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. The certified hearing notice was \nreturned  to  the  Commission on October 16,  2024, per  the  return postal notice  bearing  the  same \ndate.  However, the notice that was sent first-class U.S. Mail did not return to the Commission.  \nThus, I find by the preponderance of the evidence that reasonable notice was given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  his Form  AR-C  on \nFebruary 7, 2024. Since then, he has failed to request a bona fide hearing. Therefore, I do find by \nthe  preponderance  of  the  evidence  that  Claimant  has  failed  to prosecute  his claim  by  failing  to \nrequest a hearing. Thus, Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6880,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H400804 JAVIER VILLAR SAUCEDO, EMPLOYEE CLAIMANT RBD HOLDINGS LLC, EMPLOYER RESPONDENT OLD REPUBLIC INS. CO., INSURANCE CARRIER RESPONDENT CCMSI, TPA RESPONDENT OPINION FILED DECEMBER 3, 2024 Hearing conducted on Friday, November 8, 2024, before the Arkansas ...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["strain"],"fetchedAt":"2026-05-19T22:45:03.863Z"},{"id":"alj-G704530-2024-12-02","awccNumber":"G704530","decisionDate":"2024-12-02","decisionYear":2024,"opinionType":"alj","claimantName":"Brandon Mcmurtry","employerName":"Vilonia Waterworks Assn., Inc","title":"McMURTRY VS. VILONIA WATERWORKS ASSN., INC. AWCC# G704530 & G800411 December 02, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/McMurtry_Brandon_G704530_20241202.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"McMurtry_Brandon_G704530_20241202.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NOS. G704530 & G800411 \n \n \nBRANDON B. McMURTRY, EMPLOYEE CLAIMANT \n \nVILONIA WATERWORKS ASSN., INC., \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. MUNICIPAL LEAGUE, \n THIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED DECEMBER 2, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on September  5,  2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. George Bailey, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Ms. Mary K. Edwards, Attorney at Law, North Little Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On September  5,  2024,  the  above-captioned  claims were heard  in Little  Rock, \nArkansas.    A  pre-hearing  conference  took  place  on June  24,  2024.   The Prehearing \nOrder  entered  that  same  day  pursuant  to  the  conference  was  admitted  without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the \nstipulation, issues, and respective contentions were properly set forth in the order. \nStipulations \n At   the   hearing,   the   parties   discussed Stipulation No.   1   as   set forth   in \nCommission  Exhibit  1.   After  the  conclusion  of  the  hearing,  the  parties  reached \nStipulation No. 2.  They are the following, which I accept: \n\nMcMURTRY – G704530 & G800411 \n \n2 \n \n1. The previous  decisions  in  these  claims are  binding  on  this  proceeding \nunder the Law of the Case Doctrine. \n2. The references in Claimant’s medical records in evidence (i.e., his Exhibit \n1) to a “Kasey Bunting” is likely a clerical error; the records in question \nare those of Claimant. \nIssues \n At the hearing, the parties discussed the issues set forth in Commission Exhibit \n1.  They read: \n1. Whether  Claimant  sustained  an  injury  to  his  left  hip  as  a  compensable \nconsequence of his stipulated compensable injuries. \n2. Whether  Claimant  is  entitled  to  reasonable  and  necessary  medical \ntreatment of his alleged compensable consequence left hip injury, and/or \nadditional medical treatment of his compensable left hip injury of June 26, \n2017. \n3. Whether Claimant is entitled to additional temporary total disability bene- \nfits from November 1, 2022, to a date yet to be determined. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \nAll other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n\nMcMURTRY – G704530 & G800411 \n \n3 \n \n Claimant: \n1. Claimant  contends  that  that  he is  entitled  to  additional  reasonable  and \nnecessary   medical   treatment   and   unpaid   medically-related   travel \nexpenses. \n2. Claimant  also  contends  that  he  is  entitled  to  a  new  period  of  temporary \ntotal  disability  benefits  from  November  1,  2022,  to  a  date  yet  to  be \ndetermined. \n3. It   is   further contended that Claimant’s  hip  condition  and  need  for \nadditional  hip  surgery  undergone  on  May  15,  2024,  is  a  compensable \nconsequence.    Claimant  contends  that  he  has  sustained  loss  of  medial \nfemoral  head,  along  with  neck  constriction,  which  are  compensable \nconsequences of the original compensable hip injury. \n4. Claimant reserves issues of permanency. \n5. Statutory  attorney’s  fees  based  upon  all  controverted  amounts  are \nclaimed. \nRespondents: \n1. Respondents  contend  that  Claimant  is  not  entitled  to temporary  total \ndisability  benefits  for  his  back  or  his  left  hip.    Pursuant  to  the  previous \nopinions,   Claimant   was   determined   to   be   at   maximum   medical \nimprovement on February 13, 2018, for his back. \n\nMcMURTRY – G704530 & G800411 \n \n4 \n \n2. Respondents further contend that  he  has  not  re-entered  his  healing \nperiod  for  his  back;  therefore,  he  is  not  entitled  to  any  additional \ntemporary total disability benefits. \n3. Finally,  Respondents  contend  that  the  hip  treatment,  including  the  most \nrecent  surgery  by  Dr. Lawrence O’Malley, is not reasonable, necessary, \nor related to his compensable hip injury. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \nand  other  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to \nhear the testimony of the witnesses and to observe their demeanor, I hereby make the \nfollowing findings of fact  and  conclusions of  law  in accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he \nsustained an injury to his left hip as a compensable consequence of any \nhis compensable injuries. \n4. Because of Finding of Fact/Conclusion of Law No. 3, supra, and because \nhe has not causally related it to his compensable injury of June 26, 2017, \nClaimant  has  not  proven  by  a  preponderance  of  the  evidence  that  his \n\nMcMURTRY – G704530 & G800411 \n \n5 \n \nMay  15,  2024, left hip  replacement  surgery,  or  any  of  his  other left hip \ntreatment on   and after   October   8,   2021, is   the   responsibility   of \nRespondents. \n5. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to additional temporary total disability benefits for any period. \n6. Because of Finding of Fact/Conclusion of Law No. 5, supra, Claimant has \nnot  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to  a \ncontroverted attorney’s fee. \nCASE IN CHIEF \nSummary of Evidence \n Claimant and his mother, Gayle McMurtry, were the hearing witnesses. \n In  addition  to  the Prehearing Order  discussed  above,  admitted  into  evidence \nwere  the  following:    Claimant’s  Exhibit  1,  a  compilation  of  his medical  records, \nconsisting of two index pages and 122 numbered pages thereafter; Claimant’s Exhibit \n2, his amended prehearing questionnaire response filed on June 11, 2024, consisting \nthree pages; Respondents’  Exhibit  1,  another  compilation  of  Claimant’s  medical \nrecords,  consisting  of  one  index  page  and 21 numbered  pages  thereafter; and \nRespondents’ Exhibit 2, payment records,  consisting  of  one index  page  and seven \nnumbered pages thereafter.  In addition, I have blue-backed to the record the one-page \nemail thread memorializing the agreement of the parties to Stipulation No. 2. \n\nMcMURTRY – G704530 & G800411 \n \n6 \n \n The transcripts of the August 15, 2019, and August 11, 2022, hearings on these \nclaims,  along  with their blue-backed  exhibits,  have  been fully incorporated  herein  by \nreference. \nAdjudication \nA. Introduction \n An assessment of the issues at bar first requires a recounting of the procedural \nhistory of these claims.  On August 15, 2019, the first hearing was held on these claims \nbefore me.  The October 28, 2019, opinion thereon contains the following Findings of \nFact and Conclusions of Law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover these claims. \n \n2. The  stipulations set  forth  [below]  are  reasonable  and  are  hereby \naccepted[:] \n \nA. The   employee/self-insured   employer/third-party   adminis- \ntrator relationship existed on June 26, 2017, when Claimant \nwas  involved  in  a  motor  vehicle  collision  and  sustained \ncompensable injuries to his back and left shoulder. \n \nB. The   employee/self-insured   employer/third-party   adminis- \ntrator   relationship   existed   on   January   11,   2018,   when \nClaimant sustained a compensable injury to his back. \n \nC. Respondents  accepted  the  above  injuries  as  compensable \nand paid benefits pursuant thereto. \n \nD. Claimant’s average weekly wage with respect to Claim No. \nG704530 and concerning the date of injury of June 26, 2017, \n$774,00,     entitles     him     to     compensation     rates     of \n$516.00/$387.00. \n \n\nMcMURTRY – G704530 & G800411 \n \n7 \n \nE. Claimant’s average weekly wage with respect to Claim No. \nG800411  and  concerning  the  date  of  injury  of  January  11, \n2018,   $749.00,   entitles   him   to   compensation   rates   of \n$499.00/$374.00. \n \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he \nsustained a compensable left hip injury by specific incident on June \n26, 2017. \n \n4.  Claimant has proven by a preponderance of the evidence that he is \nentitled to reasonable and necessary treatment of his compensable \nleft hip injury. \n \n5. Claimant has proven by a preponderance of the evidence that all of \nthe  treatment  of  his  compensable  left hip  injury  that  is  in  evidence \nwas reasonable and necessary. \n \n6. Claimant has proven by a preponderance of the evidence that all of \nthe  treatment  of  his  compensable  back  injury  that  is  in  evidence \nwas reasonable and necessary. \n \n7. Claimant has proven by a preponderance of the evidence that he is \nentitled  to  additional  medical  treatment  of  his  compensable  back \ninjury in the form of pain management. \n \n8. Claimant has proven by a preponderance of the evidence that he is \nentitled to temporary partial disability benefits during the periods of \ntime  that  he  was  on  sick  and/or  catastrophic  leave  in  connection \nwith his compensable left hip injury from March 5, 2018, to July 22, \n2018, and from November 19, 2018, to January 17, 2019. \n \n9.  Claimant has proven by a preponderance of the evidence that he is \nentitled to a controverted attorney’s fee under Ark. Code Ann. § 11-\n9-715 (Repl. 2012) on all indemnity benefits awarded herein. \n \nRespondents appealed this decision.  On June 11, 2020, the Full Commission affirmed \nand  adopted  the administrative  law  judge’s  decision.  Brandon  McMurtry v. Vilonia \nWaterworks  Assn.,  Inc.,  Claim  Nos.  G704530  &  G800411 (Full  Commission  Opinion \nfiled June 11, 2020)(unpublished). \n\nMcMURTRY – G704530 & G800411 \n \n8 \n \n On August 11, 2022, the second hearing on these claims was tried before me.  \nThe  November  1,  2022, opinion  thereon  contains  the  following  Findings  of  Fact  and \nConclusions of Law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover th[ese] claim[s]. \n \n2. The  stipulation  set  forth  [below]  is  reasonable  and  is  hereby \naccepted[:] \n \nA. The administrative law judge opinion filed October 28, 2019, \nand  the  Full  Commission  opinion  filed  June  11,  2020,  are \nbinding  on  this  proceeding  under  the  Law  of  the  Case \nDoctrine. \n \n3. The   evidence   does   not   preponderate   that   Respondents   have \nabridged   Ark.   Code   Ann.   §   11-9-802(c)   &   (e)   (Repl.   2012) \nconcerning their payment or (thus far) non-payment of any medical \nbills covered under the previous decision in this matter. \n \n4. Notwithstanding Finding/Conclusion No. 3 supra, Respondents are \nhereby directed to reimburse Claimant forthwith for all of his out-of-\npocket  expenditures  made  in  connection  with  treatment  that  was \nfound  in  the  previous  hearing  to  be  reasonable  and  necessary—\nand, consequently, their responsibility. \n \n5. Claimant has proven by a preponderance of the evidence that all of \nthe  treatment  of  his  compensable  back  injuries  that  is  in  evidence \nwas reasonable and necessary.  As part of this, he has established \nhis  entitlement  to  the  ReActiv8  treatment  recommended  by  Dr. \nJohnathan Goree. \n \n6. Claimant has proven by a preponderance of the evidence that all of \nthe  treatment  of  his  left  hip  that  is  in  evidence  and  that  occurred \nprior to October 8, 2021, was reasonable and necessary. \n \n7. Claimant has proven by a preponderance of the evidence that he is \nentitled  to  temporary  total  disability  benefits  from  February  26, \n2020, to December 17, 2020. \n \n\nMcMURTRY – G704530 & G800411 \n \n9 \n \n8. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  his \ncounsel is entitled to a controverted attorney’s fee on the additional \nindemnity  benefits  awarded  herein  under  Ark.  Code  Ann.  §  11-9-\n715 (Repl. 2012). \n \nThis decision was not appealed.  These earlier opinions are binding on this proceeding \nunder the Law of the Case Doctrine; and they are res judicata.  See Thurman v. Clarke \nIndustries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). \nB. Compensable Consequence \n Introduction.   In  this  proceeding,  Claimant  wishes  for  the  Commission  to  find \nthat  his  May  15,  2024,  hip replacement surgery  is  the  responsibility  of  Respondents.  \nHis  first  hurdle  in  achieving  this  result  is  getting  around  the 2022  opinion,  wherein I \nfound that Claimant proved by a preponderance of the evidence that only the treatment \nof his left hip in evidence that occurred prior to October 8, 2021, was reasonable and \nnecessary.  See supra.  To do this, Claimant is arguing that the condition of his left hip \nthat allegedly necessitated  this 2024 surgery—his  sixth  on  that body  part—is  a \ncompensable  consequence  of  his  compensable  hip  injury  that  he was  found  to  have \nsustained by specific incident on June 26, 2017.  Respondents dispute this. \n Standards.  If an injury is compensable, every natural consequence of that injury \nis  likewise  compensable.   Air  Compressor  Equip.  Co.  v.  Sword,  69  Ark.  App.  162,  11 \nS.W.3d 1 (2000); Hubley v. Best West. Governor’s Inn, 52 Ark. App. 226, 916 S.W.2d \n143  (1996).    The  test  is  whether  a  causal  connection  between  the  two  (2)  episodes \nexists.   Sword, supra; Jeter  v.  McGinty  Mech.,  62  Ark.  App.  53,  968  S.W.2d  645 \n(1998).  The existence of a causal connection is a question of fact for the Commission.  \n\nMcMURTRY – G704530 & G800411 \n \n10 \n \nKoster v. Custom Pak & Trissel, 2009 Ark. App. 780, 2009 Ark. App. LEXIS 947.  It is \ngenerally a matter of inference, and possibilities may play a proper and important role \nin establishing that relationship.  Osmose Wood Preserving v. Jones, 40 Ark. App. 190, \n843  S.W.2d  875  (1992).    A  finding  of  causation  need  not  be  expressed  in  terms  of  a \nreasonable   medical   certainty   where   supplemental   evidence   supports   the   causal \nconnection.  Koster, supra; Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, \n137 S.W.3d 421 (2003). \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Claimant  has  the  burden \nof  proving  by  a  preponderance  of  the  evidence  that  he  sustained  a  compensable \nconsequence.  This standard means the evidence having greater weight or convincing \nforce.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove \nBarium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to \nthe  Commission.   White  v.  Gregg  Agricultural  Ent.,  72  Ark.  App.  309,  37  S.W.3d  649 \n(2001).    The  Commission  must  sort  through  conflicting  evidence  and  determine  the \ntrue facts.  Id.  In so doing, the Commission is not required to believe the testimony of \nthe  claimant  or  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact \nonly those portions of the testimony that it deems worthy of belief.  Id. \n\nMcMURTRY – G704530 & G800411 \n \n11 \n \n Discussion.  In my 2019 opinion, I analyzed Claimant’s alleged left hip injury as \nfollows: \n In  his  testimony,  Claimant–who  completed  the  eleventh  grade  and \nhas a graduate equivalency degree–related that he works for Respondent \nVilonia  Waterworks  Association  (“Vilonia  Waterworks”)  as  a  Grade  4 \nWater Operator.  He described his job there as follows: \n \nWe do connects, meaning–or tickets, meaning that, you know, like \nconnects, turn people’s water on and off, seeing if they have a leak.  \nJust  anything  a  customer  has  a  question  about  their  water,  we  go \nout  there  and  check.    If  we  have  a  leak  on  our  line,  we  have  two \ncrews  of  trackhoes,  and  we  go  out  there  and  dig  and  fix  water \nleaks.  Also set meters for new houses, new constructions, set new \nmeters for that.  We also read meters.  So every month, around the \n26\nth\n of  every  month,  we  read  meters.    We  have  over–right  around \n10,000  meters.    I  believe  we  have  five  or  six  routes.    My  route  is \n1,400 meters.  Other than that, just anything that needs to be done \nregarding water. \n \nAs  the  parties  have  stipulated,  he  was  involved  in  a  work-related  motor \nvehicle accident on June 26, 2017.  Claimant described what occurred: \n \nMe and a co-worker were reading meters, and we were headed to \nthe next meter and a lady pulled out of her driveway as–she pulled \nout  the  opposite  way  we  were  going.    We  were  headed  east;  she \nwas headed west.  And it’s a narrow road, and she just pulled out \nwithout  looking,  and  I pushed her back  in  her  driveway, and  I  kind \nof  bounced  around,  hit  my  knees  on  the  truck    .  .  .  [s]o  it  was \nbasically a head-on collision with her.  I pushed her out of the way \nand  ended  up  into  the–I hit two trees, and that’s where the truck \nstopped. \n \nHis truck’s speed at the time of the collision was approximately 40 to 45 \nmiles  per  hour.   The  force  of  the  impact  totaled both  vehicles;  it  knocked \nthe  front  axle  off  of  the  Vilonia  Waterworks  vehicle  and  caved  in  the  left \nside.  Claimant added: \n \nI believe that [being stricken by the side mirror, which was sheered \noff by the impact] might’ve knocked me out just for a split second, \nthe reason why I couldn’t stop before hitting the trees.  During that \n\nMcMURTRY – G704530 & G800411 \n \n12 \n \ntime,  I  was  bouncing  up  and  down.    I  hit  my  knee  on  the–my  left \nknee  on  the  dash,  on  the  under  part  of  the  dash.    I  was  jerked \naround.  I had my seatbelt on.  I was jerked around, going back and \nforth because of the collision with the vehicle and then also with the \ncollision  with  the  tree.    And  I  was  in  all  different  types  of  positions \nbecause  of  the  impact.    I  bounced  up  on–I  bounced  up,  nearly  hit \nmy head on top of the roof of the truck. \n \nHis  knee  ended  up  nearly  touching  his  chest–stopped  only  by  the  dash.  \nAt  the  same  time,  Claimant  was  hunched  over  because  his  seat  belt  did \nnot catch right away. \n \n Claimant  is  29  years  old  and  has  led  an  active  life.    Prior  to  the \nhead-on  collision,  he  never  had  undergone  any  treatment  of  his  hip.    He \nwas  able  to  walk  and  run  without  difficulty.    Moreover,  he  was  able  to \nperform the physical aspects of his job without any problems.  Jeff Ruple \nand  Josh  McReynolds,  his  supervisors,  and  the  General  Manager  of  the \nwaterworks, Cecil McMurtry, confirmed this, with McReynolds stating that \nbefore the head-on collision, Claimant “was one of the first people to—he \nwould  knock  people  out  of  the  way  to  get  down  to  be  the  one  to  fix  the \nleak.”  He had no difficulty lifting heavier objects at that point in time.  The \nelder McMurtry concurred, stating that his son (and Ruple) regularly had to \nwork extra hours on the weekend with no problems. \n \n After the accident, he treated with, inter alia, Dr. Justin Seale.  This \ntreatment  included  physical  therapy.    While  he  was  having  difficulty \nwalking after the wreck, it was during the second round of therapy that he \nnoticed a problem with his left hip.  He related: \n \nI had trouble walking and had a little bit of pain, but it wasn’t that \nbad until the second physical therapy, because I was released from \n[Dr.]  Reynolds  then  [concerning  the  left  shoulder],  and  she  [the \ntherapist]  focused  all  on  my  back  this  time.    So  I  was  doing \nexercises for my back, which meant different–since I was no longer \ndoing  the  shoulder  exercises,  so  that  changed  where  I  was  lifting \nmy leg, both legs, and having to like go knee to chest for my back \nstrengthening and a lot more like being on my knees and stretching \nout my legs and stuff like that for strengthening my back, and that’s \nwhen I noticed, the first day of the second physical therapy, that’s \nwhen I noticed something definitely was wrong with my hip.  I then \ntried to call Patrice Baker [the adjustor]. \n \n\nMcMURTRY – G704530 & G800411 \n \n13 \n \nIn  explaining  his  symptoms,  he  described  experiencing  an  “agonizing \npain” in the area of his left hip and groin.  He denied having an accident or \nany  type  of  injury  between  the  time  of  the  collision  and  the  time  he  first \nexperienced this sensation in physical therapy.  Ruple agreed with this in \nhis testimony. \n \n After  multiple  failed  attempts  to  reach  Baker,  which  began  in  the \nfirst  or  second  week  of  September  2017,  Claimant  finally  heard  from  her \none  week  before  his  scheduled  return  visit  to  Dr.  Seale  on  October  23, \n2017.  She told him to bring up the matter with Seale.  He continued: \n \nThe  exercises  that  bothered  me  as  far  as  my  hip,  and  I  was  still \ndoing the lifting of the weights and stuff, that was part of it also, but \nI would lay on my back and I would go knee to chest with my legs, \nand I just couldn’t do it.  I could do it with my right leg, not my left \nleg.  I mean, I couldn’t do it.  I was in a tremendous amount of pain \nwhenever  I  did  .  .  .  So  after  that  first  day  of  physical  therapy,  I \nmissed  the  next  two  physical  therapy  dates  because  my  hip  was \nweak and I was in pain and I just couldn’t do the exercises. \n \nMore weakness and difficulty walking coincided with this therapy. \n \n Once  Claimant  presented  to  Seale  with  his  left  hip  problem,  the \ndoctor  had  him  undergo  an  MRI.    This  test  revealed,  inter  alia,  a  labral \ntear.  Seale referred Claimant to Dr. James Tucker.  After their November \n7,  2017  visit—during  which  time  the  MRI  was  discussed—Tucker  had \nClaimant return in three months.  He released Claimant to full duty as well.  \nClaimant  acknowledged  that  as  reflected  in  the  record  of  that  visit,  Dr. \nTucker  informed  him  that  his  hip  condition  was  not  a  work-related  injury.  \nHowever, he denied that Dr. Seale told him this.  He did acknowledge that \nSeale wrote in the record that “[Claimant] and his mother understand that \nthis [the hip condition] may not be related to his work injury.” \n \n During this interim—from the November 7, 2017 release by Tucker \nuntil  the  work-related  incident  on  January  11,  2018—Claimant  worked.  \nAsked to describe his condition during that time, he replied:  “Even though \nI was on—even though I wasn’t on restricted duties, I did not do my full job \n. . . I was still weak and had difficulty walking, getting in and out of trucks, \ndoing shovel work.  Everything that my job is I had trouble—I had difficulty \ndoing.”  Co-workers  assisted  him.    He  was  not  able  to  drive  a  vehicle  to \nread  meters,  because  it  required  him  to,  among  other  things,  exit  the \nvehicle left leg-first.  But he was able to ride in the front of the vehicle on \n\nMcMURTRY – G704530 & G800411 \n \n14 \n \nthe  right  side  and  read  meters  on  the  right  side  of  the  street.    The  elder \nMr. McMurtry and McReynolds corroborated Claimant’s testimony that he \nwas  having  difficulty  doing  his  job  after  he  returned  to  work  following  the \ncollision.  Mr. McMurtry testified that during this period, Claimant’s “stride \nwas  shorter.    From  what  I  noticed,  he  kind  of  favored–favored  that  [left] \nleg.” \n \n Claimant  returned  to  Dr.  Tucker  in  February  2018.    He  scheduled \nClaimant for a CT scan of the hip.  Thereafter, on March 5, 2018, Tucker \nperformed  hip  surgery  to  repair  the  torn  labrum.    Claimant  returned  to \nwork on July 22, 2018.  But because he was experiencing numbness and \ntingling  going  down  his  leg,  he  went  back  to  the  doctor.    Dr.  Tucker \nperformed another hip surgery on November 19, 2018. \n \n The  medical  records  in  evidence  reflect  that  on  October  23,  2017, \nClaimant told Dr. Seale that “[d]uring therapy he developed anterior hip \npain with the exercises.  He does report some hip pain at the time of the \naccident but is unsure if it is anterior hip pain.”  Seale recommended an \nMRI  of  the  left  hip.    Per  Dr.  Michael  Kendrick,  who  read  the  MRI,  it \nshowed: \n \nIMPRESSION: \nQ. No acute findings. \nR. Possible  healed  fracture  versus  sessile  osteochondroma  at \nthe medial aspect of the femoral neck. \nS. Lack  of  femoral  head  neck  junction  cut  back  of  the  left  with \nan  associated  anterior  superior  labral  tear.    These  findings \ncan   be   seen   with   femoral   acetabular   impingement,   if \nclinically compatible. \n \n Dr.  Seale  saw  Claimant  on  October  30,  2017, [and] stated  that  he \n“has normal findings in the left hip.” \n \n Claimant   told   Dr.   Tucker   on   November  7,   2017  that   his   hip \nsymptoms  began  with  the  June  26,  2017  motor  vehicle  accident.    X-rays \nof  the  hip  were  normal.    The  doctor  assessed  Claimant  as  having \nfemoroacetabular  impingement  and  osteochondroma  in  the  left  hip  and \nwrote: \n \nThere  is  no  acute  injury  to  the  hip  related  to  his  work  injury.    We \nwill  release  him  to  full  duty.    I  will  see  him  back  in  3  months,  at \nwhich time his workers’ comp issues will be resolved.  We will then \n\nMcMURTRY – G704530 & G800411 \n \n15 \n \nproceed    with    left    hip    arthroscopy    with    labral    repair    and \nfemoroplasty.  Again, this is not related to his work injury. \n \n On  February  9,  2018  Tucker  recommended  that  he  undergo  a  CT \nscan of the hip and stated:  “At his last appointment, I discussed with \nBrandon  that  his  issues  were  unrelated  to  his  work  injury  but  that  they \nwould need to be addressed at a later point.”  The CT scan, performed \nthat  same  day,  was  found  by  Dr.  Kathleen  Sitarik  to  show  “[b]ony \nexcrescence  compatible  with  osteochondroma  medial  aspect  femoral \nneck.”  Tucker on February 13, 2018 wrote that the scan showed a “CAM \nlesion,   indicative   of   CAM-type   femoroacetabular   impingement   and   a \nbenign osteochondroma.”  They agreed to proceed with surgery. \n \n Dr.  Tucker  operated  on  March  5,  2018,  performing  a  femoroplasty \nand   a   labral   repair.      While   the   pre-operative   diagnosis   was   only \nfemoroacetabular  impingement,  left  hip,  the  post-operative  diagnoses \nspecified  that  the  impingement  was  a  CAM-type;  Tucker  added  that \nClaimant had a labral tear of the left hip.  As of July 20, 2018, the doctor \nprescribed an additional two months of physical therapy. \n \n Claimant  again  presented  to  Dr.  Tucker  with  left  hip  pain  on \nOctober  2,  2018.   He ordered  a  second  CT scan.    This  scan, per Tucker \non  October  17,  2018,  “show[ed]  a  very  large  sessile  osteochondroma, \nwhich is likely causing impingement of the iliopsoas tendon.”  A second \nsurgical  procedure  took  place  on  November  19,  2018.    In  that  instance, \nDr. Tucker performed a diagnostic arthroscopy of the hip and a resection \nof  an  osteochondroma  on  the  femoral  neck.    Claimant  reported  to  the \ndoctor on January 4, 2019 that about a week prior, he experienced left hip \npain.  But an epidural steroid injection into the back at that time alleviated \nit.  Tucker gave Claimant work restrictions of no squatting or heavy lifting. \n \n In a return visit to Dr. Tucker on May 24, 2019, six months after the \nsecond  surgery,  the  doctor  examined  him  and  wrote:   “The labral tear \nthat  the  patient  had  that  we  treated  with  repair  and  snip,  was \nconsistent with a hyperflexion injury from a motor vehicle accident.”  \n(Emphasis added) \n \n In  this  case,  the  evidence  is  clear  that  Claimant  has  objective \nfindings of an injury to his left hip in the form of, inter alia, a labral tear.  I \ncredit  Claimant’s  testimony  that  the  mechanism  of  his  injury  was  the \nstipulated work-related head-on motor vehicle collision that took place on \nJune   26,   2017.      The   incident   is   identifiable   by   time   and   place   of \n\nMcMURTRY – G704530 & G800411 \n \n16 \n \noccurrence.  Moreover, the hip injury caused internal or external physical \nharm to his body  and required medical services. \n \n Respondents  have  attempted  to  cast  doubt  on  the  above,  arguing \nthat  Claimant  did  not  complain  about  his  hip  until  around  three  months \nafter the accident.  But the October 23, 2017 report by Dr. Seale confirms \nthat Claimant told him that he experienced “ some hip pain at the time of \nthe accident but is unsure if it is anterior hip pain.”  He also told Dr. Tucker \nhis  belief  that  the  hip  condition  was  the  result  of  the  accident.    I  credit \nClaimant’s testimony that he was not having any hip problems prior to the \naccident.    In  addition,  I  credit  his  testimony  that  he  had  been  having \ntrouble walking since the accident.  As the evidence reflects, the hip injury \nmerely became more pronounced later, during physical therapy, when the \nmaneuvers   being   performed   then—manipulation   of   the   left   lower \nextremity—made it clear that something was wrong. \n \n Respondents  have  also  highlighted  statements/opinions  by  certain \nof  Claimant’s  treating  physicians  in  the  medical  records  to  show  that \nClaimant’s hip injury is not work-related.  First, they have pointed out that \nDr. Seale on October 30, 2017 stated that the hip condition “may not be \nrelated  to  his  work  injury.”    Certainly,  this  does  not  conform  with  the \nstandards  governing  medical  opinions  regarding  causation.   See  infra.  \nBut curiously, Seale also stated that the hip MRI was “normal,” when it \ncertainly was not.  It showed, inter alia, a labral tear.  Kendrick, who read \nthe MRI, wrote that a labral tear “can be seen with femoral acetabular \nimpingement, if clinically compatible.”  But as Dr. Tucker, who actually \noperated on the hip, wrote, “[t]he labral tear that the patient had that we \ntreated with repair and snip, was consistent with a hyperflexion injury from \na motor vehicle accident.”  Claimant’s testimony at the hearing concerning \nwhat  occurred  when  his  work  truck  collided  with  the  other  vehicle  (and, \nthereafter,  trees)  on  June  26,  2017  readily  show  that  he  hyperflexed  his \nleft hip at that time. \n \n Respondents  have  attacked  the  May  24,  2019  opinion  by  Tucker \nquoted above, asserting that it was not given within a reasonable degree \nof  medical  certainty.    In Cooper  v.  Textron,  2005  AWCC  31,  Claim  No. \nF213354   (Full   Commission   Opinion   filed   February   14,   2005),   the \nCommission  addressed  the  standard  when examination  medical  opinions \nconcerning causation: \n \nMedical evidence is not ordinarily required to prove causation, i.e., \na  connection  between  an  injury  and  the  claimant's  employment, \n\nMcMURTRY – G704530 & G800411 \n \n17 \n \nWal-Mart  v.  Van  Wagner,  337  Ark.  443,  990  S.W.2d  522  (1999), \nbut if a medical opinion is offered on causation, the opinion must be \nstated  within  a  reasonable  degree  of  medical  certainty.    This \nmedical   opinion   must   do   more   than   state   that   the   causal \nrelationship   between   the   work   and   the  injury   is   a  possibility. \nDoctors’ medical  opinions  need  not  be  absolute.    The  Supreme \nCourt has never required that a doctor be absolute in an opinion or \nthat  the  magic  words “within  a  reasonable  degree  of  medical \ncertainty” even  be  used  by  the  doctor;  rather,  the  Supreme  Court \nhas simply held that the medical opinion be more than speculation; \nif the doctor renders an opinion about causation with language that \ngoes   beyond   possibilities   and   establishes   that   work   was   the \nreasonable  cause  of  the  injury,  this  evidence  should  pass  muster.  \nSee, Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d \n760  (2001).    However,  where  the  only  evidence  of  a  causal \nconnection  is  a  speculative  and  indefinite  medical  opinion,  it  is \ninsufficient  to  meet  the  claimant's  burden  of  proving  causation.  \nCrudup v. Regal Ware, Inc., 341, Ark. 804, 20 S.W.3d 900 (2000); \nKII  Construction  Company  v.  Crabtree,  78  Ark.  App.  222,  79 \nS.W.3d 414 (2002). \n \nRespondents are correct that the above statement–particular the phrasing \n“was consistent”—falls short of the standard applied to causation opinions.  \nBut  while  I  cannot  credit  the  above  as  an  opinion  with[in] a  reasonable \ndegree  of  medical  certainty  that  the  accident  caused  the  torn  labrum—\nwhich  was  not  the  opinion  that  the  doctor  was  offering—I nonetheless \ncredit  the  opinion  that  he  did  give:    that  the  injury  Claimant  suffered  is \nconsistent with  hyperflexion.    The  Commission  is  authorized  to  accept  or \nreject  a  medical  opinion  and  is  authorized  to  determine  its  medical \nsoundness and probative value.  Poulan Weed Eater v. Marshall, 79 Ark. \nApp.  129,  84  S.W.3d  878  (2002).    The  evidence  preponderates  that \nClaimant suffered a hyperflexion injury in the June 26, 2017 accident that \nresulted in the torn labrum. \n \n Also,  Respondents  have  posited  that  the  above  opinion  is  not \nworthy of credit because “[i]t was also written more than fourteen months \nafter the [surgery] and contradicts Dr. Tucker’s own testimony at the time \nof the surgery.”  Respondents’ Brief at 2.  Nothing before me shows that \nTucker  has  given  any  testimony.    Furthermore,  the  opinion  statement \nconcerning hyperflexion was the only opinion offered by the doctor on this \nmatter   since   he   actually   viewed   the   hip   during   surgery.      That   the \nstatement was given much later is of no consequence; Tucker made it in \n\nMcMURTRY – G704530 & G800411 \n \n18 \n \nthe  course  of  an  appointment  with  Claimant,  during  which  he  examined \nhim and had the medical records.  Respondents’ arguments on this point \nare thus without merit. \n \n As  for  the  other  conditions  of  Claimant’s  hip  disclosed  by  the \nsurgery  and  radiological  findings that  may  have  been  chronic  and/or  pre-\nexisting—the   femoroacetabular   impingement   and   a   benign   osteo- \nchondroma—an  employer  under  the  Arkansas  Workers’  Compensation \nAct   takes   an   employee   as   the   employer   finds   him.      Employment \ncircumstances  that  aggravate  pre-existing  conditions  are  compensable.  \nNashville Livestock Comm. v. Cox, 302 Ark. 69, 787 S.W.2d 64 (1990).  A \npre-existing   infirmity   does   not   disqualify   a   claim   if   the   employment \naggravated,  accelerated,  or  combined  with  the  infirmity  to  produce  the \ndisability  for  which  compensation  is  sought.   St.  Vincent  Med.  Ctr.  v. \nBrown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).  “An aggravation, being a \nnew  injury  with  an  independent  cause,  must  meet  the  requirements  for  a \ncompensable  injury.”   Crudup  v.  Regal  Ware,  Inc.,  341  Ark.  804,  20 \nS.W.3d  900  (2000);   Ford  v.  Chemipulp  Process,  Inc.,  63  Ark.  App.  260, \n977 S.W.2d 5 (1998).  This includes the prerequisite that the alleged injury \nbe  shown  by  medical  evidence  supported  by  objective  findings.   See \nHeritage  Baptist  Temple  v.  Robison,  82  Ark.  App.  460,  120  S.W.3d  150 \n(2003).  These standards have been met here. \n \n In  sum,  Claimant  has  proven  by  a  preponderance  of  the  evidence \nthat he sustained a compensable injury by specific incident to his left hip. \n \n. . . \n \n Claimant has proven by a preponderance of the evidence that he is \nentitled    to    reasonable    and    necessary    medical    treatment    of    his \ncompensable  left  hip  injury  as  set  out  in  the  above-quoted  statute.  \nMoreover, I have reviewed Claimant’s Exhibit 1 and Respondents Exhibit \n1,  and  I  find  that  all  of  the  treatment  of  the  injury  reflected  therein  was \nreasonable and necessary. \n \n In  turn,  the 2022  opinion,  in  which  Claimant sought  additional  treatment  for  his \nhip, contains the following analysis: \n With   respect   to   his  hip,   Claimant   reported   to   Dr.   Tucker   on \nNovember 22, 2019, that he was “doing fairly well overall.”  X-rays showed \nno arthritic changes.  Tucker wrote that Claimant was “doing well.” \n\nMcMURTRY – G704530 & G800411 \n \n19 \n \n \n On  March  11,  2020,  Claimant  began  treating  with  Chad  Bryant, \nD.C.  A series of 20 visits are documented in the records in evidence.  He \npresented  with  lower back pain  of  7/10  in  intensity  that began  in  January \n2018 after he lifted a heavy pump at work.  Claimant informed Bryant that \nhis pain started to worsen in January 2020.  He also complained of left hip \npain that had “c[o]me on gradually” but was “progressively getting worse.”  \nClaimant rated his hip pain as 4/10.  Dr. Bryant palpated spasms on both \nsides of the lumbar and sacral spine, along with subluxation at L1, L4 and \nL5.  The treatments that Bryant recommended and administered included, \ninter alia, chiropractic adjustments and electric muscle stimulation. \n \n On  June  30,  2020,  Claimant  underwent  an  intra-articular  steroid \ninjection  by  Dr.  Victor  Vargas  into  the  left  coxa  femoral  joint.    He  also \nunderwent an MRI of the left hip, which Dr. Tucker wrote showed no signs \nof a recurrent labral tear.  The doctor added:  “We will put him in a light-\nduty  no  climbing  extended  standing  pushing  or  pulling  [sic].”    Later, \nClaimant  reported  to  Tucker  that  the  injection  only  gave  him  two  days  of \nrelief. \n \n Dr.  Tucker  recommended  a  diagnostic  arthroscopy  of  the  left  hip \nwith  a  resection  of  capsular  scarring.    This  procedure  took  place  on \nAugust 5, 2020.  Claimant was given post-operative diagnoses of a labral \ntear, capsular labral adhesions, and femoral acetabular impingement.  The \noperative  notes  reflect  that  Tucker  found  the  labrum  was  torn  anteriorly, \nand also that “[t]here was dense scarring between the labrum and capsule \n. . . .”  Claimant told Tucker on December 3, 2020, that “his left hip feels \nabout the same or even a little worse than before surgery.”  The report \nalso reads: \n \n[Claimant]  indicates  he  was  initially  much  better  after  surgery  but \nnow is having increasing problems[.  H]e has pain with flexion and \ninternal  and  external  rotation[.    H]e  has  limited  range  of  motion \n[and]  has  welling  in  the  lower  extremity  along  with  burning  type \npain. \n \nThe doctor noted that x-rays of the hip did not show advancing arthritis or \njoint space narrowing.  He recommended a bone scan to rule out complex \nregional pain syndrome, along with another MRI of the joint.  Tucker gave \nClaimant restrictions of “[n]o lifting, squatting, pushing, pulling or twisting.”  \nNeither   the   bone   scan   nor   the   MRI   showed   any   signs   of  obvious \npathology, per Dr. Tucker.  The doctor on December 17, 2020, wrote:  “At \n\nMcMURTRY – G704530 & G800411 \n \n20 \n \nthis  point  I  think  the  only  thing  that  is  going  to  improve  [Claimant’s] \nsymptoms  is  getting  his  core  and  hip  in  better  shape  to  stabilize  and  D \nrotate the pelvis’s [sic] . . . .” \n \n. . . \n \n On October 8, 2021, Claimant reported to Dr. Tucker that “he has \nbeen  having  hip  pain  again  for  the  past  3  to  4  months  and  it  just  keeps \nprogressively getting worse.”  The report reads in pertinent part: \n \nAssessment/Plan \nHe presents back is continued to have pain in his left hip he has an \nosteochondroma  which  we  have  done  arthroscopic  resection  on \nbecause  of  the  impingement  caused  however  he  still  has  bone \nremaining posterior medially from the osteochondroma.  His pain is \npredominantly  in  the  groin.    He  has  numbness  in  the  right  leg \nextending from the head of the fibula distally distribution is also has \nweakness and difficulty with dorsiflexion of the foot. \n \n. . . \n \nWe  discussed  that  if  we  are  going  to  remove  any  more  of  the \nosteochondroma  it  would  have  to  be  done  with  an  open  surgery.  \nWe need a CT scan to assess that this we[’]re going to obtain a CT \nscan  of  the  left  hip    He  also  appears  to  have  peroneal  nerve \ncompression of the fibular head so we[’]re going to obtain an EMG \nnerve conduction study.  We will follow him up with a telemedicine \nvisit once that is complete.  [Sic] \n \nThat   same   day,   Tucker   assigned   Claimant   restrictions   of   no   lifting, \npushing, pulling, squatting, climbing, or bending.  Later, on November 17, \n2021, Tucker wrote: \n \nI saw Brandon McMurtry in the office today. \n \nPlease  excuse  Brandon  for  11/27/2021.    It  is  my  medical  opinion \nBrandon   needs   to   undergo   surgery   for   a[n]   osteochondroma \nresection. \n \nHe is scheduled for a left femoral neck osteochondroma resect [f]or \n12/30/2021[.] \n \n\nMcMURTRY – G704530 & G800411 \n \n21 \n \n On December 30, 2021, Dr. Tucker operated as he outlined above, \nperforming an open resection of a femoral osteochondroma in the femoral \nneck  of  the  left  hip.    The  surgery  confirmed  the  diagnosis  of  this \nosteochondroma.    Tucker  took  Claimant  off  work  for  three  months  in  a \nnote  dated  January  3,  2022.    On  January  12,  2022,  he  amended  this  to \nrestart the three-month period.  The reason for this is because on January \n13, 2022, Dr. Eric Gordon had to operate on the hip to drain and debride a \nhematoma that had developed on its anterior aspect.  Claimant reported to \nTucker on January 18, 2022, that he was “doing okay.” \n \n. . . \n \n When Claimant went back to Tucker’s office on March 11, 2022, \nand saw Tristan Jenkins, P.A., he reported that he “doing okay.”  But his \npain had not improved.  Jenkins wrote: \n \nContinued  left  hip  pain.    He  has  had  5  previous  surgeries  prior  to \nthis  including  arthroscopies  of  the  left  hip.    He  is  worried  he  has \nanother  labral  tear.    I  offered  an  intra-articular  steroid  injection \ntoday  but  he  says  he  had  1  of  these  about  6  months  ago  that  did \nnot give any pain relief.  He would like to move forward with an MRI \nto evaluate for repeat labral tear.  We will get this done and see him \nback after this. \n \nPer the report, the March 24, 2022, MRI showed: \n \nLow-grade  articular  cartilage  loss  in  the  left  hip  joint  with  small \ncurtain osteophytes. \n \nNo evidence for labral tear or re-tear. \n \nSmall left hip joint effusion is likely reactive. \n \nPostsurgical artifact and/or scarring within the anterior soft tissues.  \nMild   apparent   edema   in   the   rectus   femoris   musculotendinous \njunction is either artifactual or secondary to low-grade strain. \n \nMild left iliopsoas and gluteus minimus tendinosis. \n \nTrace  edema  in  the  left  trochanteric  bursa  is  likely  reactive  or \nsecondary to low-grade bursitis. \n \n\nMcMURTRY – G704530 & G800411 \n \n22 \n \nTucker reviewed this and wrote on March 29, 2022: \n \nHis  MRI  shows  no  sign  of  a  recurrent  tear  in  the  left  hip  it  does \nshow  some  muscle  atrophy  and  tendinitis  .  .  .  [b]ecause  he  does \ncontinue  to  have  some  muscle  atrophy  we  are  going  to  continue \nhim in therapy and limit him to no climbing or lifting over 25 pounds \nwill work on getting his hip strengthening. \n \nTucker  on  April  6,  2022,  gave  Claimant  restrictions  of  no  climbing, \nsquatting,  twisting,  excessive  bending,  or  lifting  of  over  25  pounds.    That \nsame day, Tucker wrote a letter to Amanda Blair of Respondent Arkansas \nMunicipal League that reads: \n \nIn  regards  to  your  letter  dated  January  3,  2022,  concerning  the \nabove patient [Claimant], please find my answers below: \n \nThe injury from 2017 on the left hip is not the cause of the need for \nsurgery and is not related to the right leg numbness and weakness.  \nOther  than  the  patient  attending  two  physical  therapy  sessions  at \nour  office,  there  was  no  treatment  or  physician  visits  between \nDecember  2020  and  October  2021.    There  was  no  new  injury \nreported  or  noted  from  the  December  2020  visit  to  the  October \n2021  visit.    My  treatment  of  the  left  hip  on  Mr.  McMurtry  has  not \nbeen related to the injury in 2017. \n \nIMPAIRMENT RATING \nThe patient was placed at MMI as of December 2020.  According to \nthe  AMA  Guides  to  the  Evaluation  of  Permanent  Impairment, \nFourth Edition, Mr. McMurtry has a 0% partial impairment of the left \nhip  associated  with  his  work-related  injury.    These  statements  are \nmade with a reasonable degree of medical certainty. \n \n Per the medical records in evidence, Dr. Tucker last saw Claimant \non July 13, 2022.  He wrote: \n \n[Claimant] presents back today with continued left hip pain we have \na recent MRI which shows no signs of a tear only mild degenerative \nchanges.  On exam today he is tender over the greater trochanteric \nbursa  and has a  snapping  iliopsoas.    We discussed this  we[’]re \ngoing  to  get  him  set  up  for  a  greater  trochanteric  bursa  injection \nand possibly an iliac psoas injection later.  We obtain[ed] 4 view x-\nrays  today  that  showed  no  progression  of  any  of  the  degenerative \n\nMcMURTRY – G704530 & G800411 \n \n23 \n \nchanges  and  no  recurrence  of  his  impingement.    He  has  been \ntreated   long-term   with   hydrocodone  for   his   back   and   hip.      I \ndiscussed this with him today we cannot treat long-term pain he will \nhave  to  see  his  pain  physician  for  this.    I  am  giving  him  a \nprescription   for   Talwin   NX   until   he   follows   up   with   his   pain \nphysician.  We are also going to set him up for the injections. \n \n. . . \n \n As for the left hip treatment, I credit Dr. Tucker’s opinion that the \ncompensable June 26, 2017, injury was not the cause of Claimant’s need \nfor  surgery.   See  Poulan  Weed  Eater, supra.    The  context  clearly  shows \nthat  the  doctor  is  referring  to  the  December  30,  2021,  and  January  13, \n2022,  surgical  procedures.    In  rendering  this  opinion,  Tucker  correctly \npointed out that there was an approximate ten-month gap in hip treatment, \nfrom December 2020 to October 2021, save two therapy appointments.  In \nmaking this finding, I am mindful of Claimant’s testimony that he did not \nre-injure  his  hip  during  this  interim  (which  his  father  corroborated),  and \nthat the reason for the gap was his belief that nothing more could be done \nfor him.  But I note that the medical report from October 8, 2021, reflects \nthat Claimant at that time only “ha[d] been having hip pain again for the \npast 3 to 4 months . . . .”  Also, the December 17, 2020, report by Tucker, \ncited above, supports the doctor’s opinion.  Then, an MRI and bone scan \nthat  had  been  performed  did  not  “show  any  signs  of  any  obvious \npathology.”  In fact, “[t]he MRI show[ed] the hip to be very stable as far as \narticular cartilage loss or labrum.”  Therefore, Claimant has proven by a \npreponderance  of  the  evidence  that  only  the  treatment  of  his  left  hip  in \nevidence  that  occurred  prior  to  October  8,  2021,  was  reasonable  and \nnecessary. \n \nIt bears repeating:  the above decisions are binding on this proceeding under the Law \nof the Case Doctrine. \n In the most recent hearing, Claimant testified that he received a referral from Dr. \nGoree  to  Dr.  O’Malley  concerning  his  left  hip.    Within  a  month  of  his  first  seeing \nO’Malley, Claimant underwent surgical replacement of his hip.  The following exchange \ntook place during his direct examination: \n\nMcMURTRY – G704530 & G800411 \n \n24 \n \nQ. And you were ready, willing, and able to do the operative procedure \nhe recommended, were you not? \n \nA. I was. \n \nQ. Had your hip gotten any better over the last couple of years? \n \nA. Not until this last surgery. \n \nQ. Okay.  Was the way your hip felt pretty much the same as it felt \nwhen Dr. Tucker got through with you? \n \nA. Can you say that one more time? \n \nQ. Was your hip about the same when you saw Dr. O’Malley as it \nwas back when Dr. Tucker treated you? \n \nA. Yes. \n \nQ. Did you have any accidents in the meantime—between the last \ntime you saw Dr. Tucker and when you saw Dr. O’Malley, had \nyou  had  [any]  kind  of  accident  where  you  fell  or  injured  your \nhip? \n \nA. No. \n \nQ. Had  your  hip  been  just  pretty  much  the  same  the  last  two \nyears? \n \nA. (No audible response) \n \nQ. Before  you  saw  Dr.  O’Malley,  had  your  hip  been  about  the \nsame for two years? \n \nA. Yes.  Before O’Malley, yes. \n \n(Emphasis added) \n\nMcMURTRY – G704530 & G800411 \n \n25 \n \n On  cross-examination, Claimant acknowledged that Dr. O’Malley has given no \nopinion  as  to  whether  his  need  for  the  hip  replacement  surgery  was  related  to  his \ncompensable left hip injury.  Claimant paid for O’Malley’s treatment on his own. \n The medical records in evidence reflect that on April 4, 2024, Claimant first saw \nDr. O’Malley.  The report of that visit reads in pertinent part: \nHistory of Present Illness:  Brandon Baxter McMurtry is a 34 y.o. year old \nmale  patient  presents  as  a  new  patient  for  evaluation  of  the  left  hip.  \nPatient  has  a  complex  history  including  5\n1\n previous  hip  surgeries.   He \nreports this started after a MVC in 2017.  He had left hip pain following this \nbut  no  fractures  were  identified.    He  was  later  worked  up  and  diagnosed \nwith  a  hip  labral  tear  and  underwent  labral  repair  in  March  2018  with  Dr. \nTucker.    He  did  not  improve  following  this  and  this  was  repeated  in \nNovember 2018.  He most recently had a hip scope done towards the end \nof 2020.  He reports his pain he feels now is the same as his pain from his \ninitial labral tear injury.  He has pain in the posterior hip but most of it is in \nthe groin.  Does not radiate past the knee.  In physical therapy, abduction \nexercises make his pain worse.  He has had a previous hip injection that \nhelped his pain for about 1 week.  He has history of HYN and smokes ½ \nPPD. \n \n. . . \n \nPhysical Examination: \n \n. . . \n \nMusculoskeletal: \nLEFT   HIP:    Inspection   no   ecchymosis,   well   healed   previous   portal \nincisions.    TTP  over  the  greater  trochanter.   ROM  normal  flexion, normal \nextension,   normal   internal   rotation,   normal   external   rotation,   normal \nadduction.    Significant  pain  with  rotation  of  the  hip  and  deep  flexion.  \nStrength 5/5  hip  flexors,  5/5  hip  extensors,  5/5  hip  abductors,  5/5  hip \nadductors.  Positive FABERS test. \n \n \n \n1\nAs discussed supra, those surgeries took place on March 15, 2018, November \n19, 2018, August 5, 2020, December 30, 2021, and January 13, 2022. \n\nMcMURTRY – G704530 & G800411 \n \n26 \n \n. . . \n \nIMAGING: \nRadiographs of the left hip show a mild cam deformity.  There is a normal \nappearing joint space in the hip.  No signs of acetabular dysplasia. \n \nMRI  arthrogram  of  the  left  hip  shows  minimal  residual  labral  tissue  with \npossible scar tissue around the joint capsule.   \n \nIMPRESSION:    34  yo M  with  left  FAI and  history  of  multiple previous  hip \narthroscopy procedures and persistent left hip pain. \n \nPLAN: \nWe  discussed  treatment  options with  the  patient  including  observation, \ntherapy,   oral   anti-inflammatories,   injections,   advanced   imaging   and \nsurgery. \n \nAt  this  point  we  recommended  trialing  a  diagnostic  left  hip  intra-articular \ninjection  by  our  partner  in  clinic  today.    The  patient  states  his  pain \ncompletely  resolved  following  injection  today.    Therefore  we  think  it  is \nreasonable  to  consider  a  hip  arthroscopy  for  the  left  hip  to  evaluate  the \nlabrum  and  cartilage.    We  will  first  plan  to  obtain  a  CT  for  hip  mapping.  \nWe will start a course of Mobic as well. \n \nA CT scan performed on April 12, 2024, showed the following: \nIntact  and  well  aligned  pubic  symphysis  and  sacroiliac  joints  without \nsignificant degenerative changes. \n \nNo significant soft tissue abnormality is noted. \n \nImpression: \nLower extremity aligned as described above. \n \nA small osseous bump along the anterior aspect of the right femoral head \nneck  junction.    No  evidence  of  cam  morphology  on  the  left  side.    No \nevidence of acetabular over coverage on either side. \n \nBilateral femoral retro torsion.  No evidence of hip dysplasia. \n \n \n\nMcMURTRY – G704530 & G800411 \n \n27 \n \n When Claimant returned to Dr. O’Malley on April 15, 2024, the doctor opined \nthat “[h]e ha[d] failed conservative management of his symptoms.”  Claimant elected to \nproceed with a left hip arthroscopy with labral repair femoroplasty. \n This  surgery—a  left  hip  arthroscopy,  with  revision  of  the  hip  and  labral  repair, \nand  a  revision  femoroplasty—took place on May 15, 2024.  Dr. O’Malley assigned \nClaimant the  same  pre  and  post-operative  diagnoses:    (1)  left hip superolateral  labral \ntear;  and  (2)  femoroacetabular  impingement.   The  operative  notes  indicate  that \nO’Malley found grade 2 chondromalacia of the femoral head, along with “[e]xtensive \ncapsule labral adhesion,” a thickened capsule, “a severe amount of adhesions of the \ncapsule on the labrum,” and a labral tear from the 12:00 to 2:00 position. \n Claimant reported to Dr. O’Malley on May 30, 2024, that he was doing well.  He \nwas  referred  to  physical  therapy.   During  a  July  11,  2024,  follow-up  visit,  Claimant \nstated he was doing well.  The doctor wrote:  “He can keep working hard with physical \ntherapy.” \n I credit Claimant’s testimony that the condition of his left hip at the time Dr. \nO’Malley began seeing him was the same as it was when Dr. Tucker treated him.  This \nis borne out by the medical records in evidence, discussed above.  And as also noted \nabove, following the 2022 proceeding, I credited Tucker’s opinion that the condition of \nClaimant’s hip that necessitated the 2021 and 2022 hip surgeries was not related to his \ncompensable  June  26,  2017,  injury.    Only  the  treatment  occurring  prior  to  October  8, \n2021,  was  reasonable  and  necessary.   Dr. O’Malley has not rendered a causation \n\nMcMURTRY – G704530 & G800411 \n \n28 \n \nopinion.  Therefore, no reason exists to revisit Dr. Tucker’s opinion.  I am unable to find \nthat Claimant has proven under Air Compressor Equip. Co. and Hubley, supra, that he \nsustained an injury to his left hip as a “natural consequence” of either his compensable \nleft hip injury or his compensable back and left shoulder injuries. \nC. Reasonable and Necessary Treatment \n Introduction.    Claimant  has  also  asserted  that  he  is  entitled  to reasonable  and \nnecessary treatment  of the alleged compensable  consequence  injury  to  his  left  hip.  \nThis includes the surgery thereon that was performed by Dr. O’Malley on May 15, \n2024.  Respondents disagree that they should be liable for this treatment. \n Standards.  Arkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut  Corp.  v.  Jones,  73  Ark.  App.  158,  40  S.W.3d  333  (2001).    A \n\nMcMURTRY – G704530 & G800411 \n \n29 \n \nclaimant is not required to furnish objective medical evidence of his continued need for \nmedical  treatment.   Castleberry  v.  Elite  Lamp  Co.,  69  Ark.  App.  359,  13  S.W.3d  211 \n(2000). \n Discussion.  Because of the above finding, I cannot find that Claimant is entitled \nto reasonable and necessary treatment of his alleged compensable consequence.  To \nthe extent that Claimant is arguing that the treatment of his hip on and after October 8, \n2021—particularly   his May   15,   2024,   surgery—was   reasonable   and   necessary \ntreatment  of  his  compensable  June 26,  2017,  hip  injury,  Claimant  must  show  that  the \nprocedure  is  causally  related  to  that  injury.   See  Pulaski  Cty.  Spec.  Sch.  Dist.  v. \nTenner,  2013  Ark.  App.  569,  2013  Ark.  App.  LEXIS  601.   But in  accordance  with  the \nFinding of Fact/Conclusion of Law No. 6 in the 2022 opinion, and further based on the \nevidence  that  was  adduced  at  the  most  recent  hearing and  outlined  above, I  cannot \nfind  this.    Consequently,  Claimant  has  not  proven  his  entitlement  to any  of this \ntreatment at Respondents’ expense. \nD. Temporary Total Disability \n Introduction.   Following  the  2022  hearing,  Claimant  was  awarded  temporary \ntotal disability benefits from February 26, 2020, to December 17, 2020.  As part of this \nproceeding, he has contended that he is entitled to additional temporary total disability \nbenefits from  November  1,  2022, to  a date yet  to  be determined.   Respondents have \nargued otherwise. \n\nMcMURTRY – G704530 & G800411 \n \n30 \n \n Standards.   The  compensable  injuries  that  Claimant  suffered—to  his  back,  left \nshoulder  and  left hip—are  all  unscheduled  ones.   See Ark.  Code  Ann.  §  11-9-521 \n(Repl. 2012).  An employee who suffers a compensable unscheduled injury is entitled \nto  temporary  total  disability  compensation  for  that  period  within  the  healing  period  in \nwhich  he  has  suffered  a  total  incapacity  to  earn  wages.   Ark.  State  Hwy.  &  Transp. \nDept.  v.  Breshears,  272  Ark.  244,  613  S.W.2d  392  (1981).    The  healing  period  ends \nwhen  the  underlying  condition  causing  the  disability  has  become  stable  and  nothing \nfurther in the way of treatment will improve that condition.  Mad Butcher, Inc. v. Parker, \n4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant must demonstrate that the \ndisability lasted more than seven days.  Id. § 11-9-501(a)(1).  Claimant must prove his \nentitlement  to  temporary  total  disability  benefits  by  a  preponderance  of  the  evidence.  \nFalcon v. NW Med. Ctr., 2019 Ark. App. 6, 567 S.W.3d 893. \n Discussion.  The 2022 opinion contains the following analysis: \n However,  the  question  remains  whether  Claimant  was  still  in  his \nhealing period then regarding any of his compensable injuries.  At the time \nof  his  2019  hearing,  per  his  testimony,  Claimant  had  long  since  been \nreleased  from  treatment  by  Dr.  Kirk  Reynolds  for  his  shoulder.    The \nevidence  shows  that  he  reached  the  end  of  his  healing  period  for  his \nshoulder before February 25, 2020.  Thus, it cannot support his claim for \ntemporary total disability benefits; and Claimant has not cited his shoulder \nin support of this portion of his claim. \n \n Concerning his left hip injury, I credit Dr. Tucker’s opinion that he \nreached   maximum   medical    improvement    as   of    December    2020.  \nSpecifically,  based  on  my  review  of  the  medical  evidence,  I  find  that  he \nreached the end of his healing period on December 17, 2020.  Based on \nthe  copious  evidence  concerning  the  physical  requirements  of  the  job, \nincluding  bending,  twisting,  and  lifting,  Claimant  was  not  capable  of \nperforming  it  because  of  his  hip  problems  once  the  meter  change-out \n\nMcMURTRY – G704530 & G800411 \n \n31 \n \nproject  concluded.    He  has  not  worked  anywhere  since  his  termination; \nand I find that the evidence preponderates that he was totally incapable of \nearning wages during that period.  See Ark. State Hwy. & Transp. Dept. v. \nBreshears,  272  Ark.  244,  613  S.W.2d  392  (1981); Sanyo  Mfg.  Corp.  v. \nLeisure, 12 Ark. App. 274, 675 S.W.2d 841 (1984)(claimant who has been \nreleased to light duty work but has not returned to work may be entitled to \ntemporary  total  disability  benefits  where  insufficient  evidence  exists  that \nthe  claimant has  the  capacity  to  earn  the  same  or  any  part  of  the wages \nhe  was  receiving  at  the  time  of  the  injury).    Therefore,  based  on  his \ncompensable  hip  injury,  Claimant  has  established  his  entitlement  to \ntemporary  total  disability  benefits  from  February  26,  2020,  to  December \n17, 2020. \n \n As  to  whether  he  is  entitled to  temporary total  disability benefits  in \nconnection with his stipulated compensable back condition, I found in the \nprevious opinion that “per the opinion of Dr. Miedema–which  I  credit–he \nreached  the end  of  his  healing period  for his  back  injury  on  February  13, \n2018.”  That opinion, as the parties have stipulated, is binding on this \nproceeding under the Law of the Case Doctrine; and it is res judicata.  See \nThurman  v.  Clarke  Industries,  Inc.,  45  Ark.  App.  87,  872  S.W.2d  418 \n(1994).  Nothing before me shows that he entered another healing period \nregarding   his   back   after   the   above-referenced   date.      Thus,   his \ncompensable  back  condition  does  not  entitle  him  to  temporary  total \ndisability benefits for any period.  Claimant has not met his burden of proof \nhere. \n \nIt bears repeating that the above findings are binding on this proceeding under the Law \nof the Case Doctrine.  See supra. \n The  only  event  that  happened  on  November  1,  2022,  with  respect  to  these \nclaims was  the  issuance  of  the  second  opinion.    There  is  no  evidence  that  Claimant \nentered  a  new  healing  period  on  that  date;  the  entry  of  the  opinion  certainly  did  not \ntrigger one.  For that reason, assuming Claimant is entitled to additional temporary total \ndisability benefits, his eligibility did not resume on that date. \n\nMcMURTRY – G704530 & G800411 \n \n32 \n \n It must first be determined whether, if at all, Claimant has entered a new healing \nperiod at all.  With regard to his respective injuries, Claimant has not argued, and the \nevidence  does  not  show,  that  he  has  begun  a  new  healing  period  concerning  his \nstipulated  compensable  left shoulder injury.   As for  his adjudicated  compensable left \nhip injury of June 26, 2017, I have found that none of Claimant’s treatment therefor on \nand  after  October  8,  2021, is causally  related  to it;  and  he  has  not  proven  a \ncompensable consequence with regard to that body part.  Thus, nothing concerning his \nleft  hip  that has  occurred  since October  8, 2021—and, especially, since  November  1, \n2022—has led to Claimant entering another healing period. \n That  leaves  his  stipulated  compensable  back  injury.  Claimant’s testimony and \nhis medical records reveal that he has undergone the trial implantation of a peripheral \nnerve stimulator on multiple occasions.  Again, this was treatment that he was awarded \nout  of  the  2022  proceeding.   The  first  time  Claimant  saw  Dr.  Goree  after  the  2022 \nopinion   was   handed   down   was   on   April   25,   2023.      Goree   recommended   the \nimplantation  of  the  stimulator.    This  happened  on  May  22,  2023,  with  Dr.  Gregory \nSmith installing it.  According to Claimant, the stimulator worked for approximately one \nweek.   On June 23, 2023, Claimant went to Goree’s office in an effort to have the \ndevice  fixed.    Unfortunately,  the  stimulator  still  did  not  work,  and  the  leads  were \nremoved.  Claimant returned to Dr. Goree on August 29, 2023.  On that occasion, the \ndoctor ordered more physical therapy.  Another implantation was scheduled.  This new \nprocedure,  conducted  by  Goree, occurred  on  October  12,  2023.   In  this  instance,  the \n\nMcMURTRY – G704530 & G800411 \n \n33 \n \nstimulator worked for 60 days.  Claimant’s testimony was that the device improved his \nfunctionality.  After the 60-day period, the stimulator was removed.  More therapy was \nordered. \n The  evidence  shows  that  the  peripheral  nerve  stimulators did  not  extend  the \nhealing period for Claimant’s back injury—which  I  found  in  the  2022  opinion  that  he \nreached on February 13, 2018.  Nor did the implantations result in his entering a new \nhealing  period.    Instead,  the  stimulator  trials and  other  back  treatments discussed \nabove were aimed  merely  at managing Claimant’s back injury beyond the end of his \nhealing  period.  See  Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d \n31 (2004). \n In sum, Claimant has not met his burden of proving his entitlement to additional \ntemporary total disability benefits for any period. \nE. Attorney’s Fee \n One of the purposes of the attorney's fee statute is to put the economic burden \nof litigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. \n193, 745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five  percent  (25%)  of  compensation \nfor indemnity benefits payable to the injured employee or dependents of a \ndeceased  employee  .  .  .  In  all  other  cases  whenever  the  commission \nfinds  that  a  claim  has  been  controverted,  in  whole  or  in  part,  the \ncommission shall direct that fees for legal services be paid to the attorney \nfor  the  claimant  as  follows:    One-half  (½)  by  the  employer  or  carrier  in \naddition  to  compensation  awarded;  and  one-half  (½)  by  the  injured \nemployee  or  dependents  of  a  deceased  employee  out  of  compensation \npayable to them. \n \n\nMcMURTRY – G704530 & G800411 \n \n34 \n \n Discussion.  Claimant has now been awarded any additional indemnity benefits \nherein.  For that reason, the evidence does not preponderate that his counsel, the Hon. \nGeorge Bailey, is entitled to a controverted fee. \nCONCLUSION \n Judgment  is  hereby  entered  in accordance  with  the Findings  of Fact  and \nConclusions of Law set forth above. \n IT IS SO ORDERED. \n       _______________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":67394,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NOS. G704530 & G800411 BRANDON B. McMURTRY, EMPLOYEE CLAIMANT VILONIA WATERWORKS ASSN., INC., SELF-INSURED EMPLOYER RESPONDENT ARK. MUNICIPAL LEAGUE, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED DECEMBER 2, 2024 Hearing before Administrative Law Judge O. Mi...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["hip","neck","back","shoulder","knee","fracture","lumbar","strain"],"fetchedAt":"2026-05-19T22:44:57.629Z"},{"id":"alj-H206533-2024-11-27","awccNumber":"H206533","decisionDate":"2024-11-27","decisionYear":2024,"opinionType":"alj","claimantName":"Timothy Patterson","employerName":"M. E. Transport, LLC","title":"PATTERSON VS. M. E. TRANSPORT, LLC AWCC# H206533 November 27, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Patterson_TIMOTHY_H206533_20241127.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Patterson_TIMOTHY_H206533_20241127.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: H206533 \nTIMOTHY PATTERSON,                         \nEMPLOYEE                                                                                                    CLAIMANT \n                                                                                \nM. E. TRANSPORT, LLC,  \nEMPLOYER                                                                                                 RESPONDENT \n                                                                                                            \nCAROLINA CASUALTY INSURANCE COMPANY,  \nINSURANCE CARRIER/TPA                                                                   RESPONDENT                                                                               \n                                                                                                                                                                                                                                              \n \n         OPINION FILED NOVEMBER 27, 2024 \n          \nHearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, Little Rock, \nPulaski County, Arkansas. \n \nClaimant presented by the Honorable Gary Davis, Attorney at Law, Little Rock, Arkansas.  \n \nRespondents represented by the Honorable Karen H. McKinney, Attorney at Law, Little Rock, \nArkansas. \n \nStatement of the Case \nOn April  10, 2024, the  above-captioned  claim came  on  for a hearing in Little  Rock, \nArkansas.  A Prehearing Telephone Conference  was  conducted in  the  above-styled  claim on \nApril  10,  2024, from  which  a Prehearing Order was  filed on that  same  day.  A  copy  of  said \norder and the parties’ responsive filings have been marked as Commission’s Exhibit 1 and made \na part of the record without objection.   \nStipulations \nDuring the prehearing telephone conference, and/or hearing, the  parties  agreed  to  the \nfollowing proposed stipulations: \n\nPatterson- H206533 \n \n2 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  of  the \nwithin claim. \n2. That  the  employee-employer-carrier  relationship  existed  at  all  relevant  times, \nincluding  on  or about August  24,  2022,  when  the  Claimant  alleges  to  have \nsustained   compensable   injuries because   of   a   work-related   motor   vehicle \naccident.   \n3. The Respondents have controverted this claim in its entirety.  \n4. All  issues  not  litigated  herein  are reserved  under  the Arkansas  Workers’ \nCompensation Act. \nIssues \nBy  agreement  of  the  parties,  the  issues  to  be  litigated  at  the  hearing included  the \nfollowing: \n1. Whether  the  Claimant sustained multiple compensable  injuries because  of a \nwork-related  motor  vehicle  accident, or  if the  Claimant  sustained  idiopathic \ninjury.  \n2. Whether the Claimant is entitled to reasonable and necessary medical treatment. \n3. Whether the Claimant is entitled to temporary total disability compensation from \nAugust 25, 2022, to a date in the future. \n4. Whether the Claimant’s attorney is entitled to controverted attorney’s fee.    \nContentions \n The respective arguments of the parties are as follows: \nClaimant: At  the  beginning  of  the  hearing,  counsel  for  the  Claimant  stated  that  the \nprimary injuries were to the Claimant’s foot, leg, and the knee mostly on the left.    \n\nPatterson- H206533 \n \n3 \n \nThe  Claimant  contends that  he  sustained  multiple compensable  injuries  on  or  about \nAugust  24,  2022.   The Claimant contends  that  he  is  owed  temporary  total  disability  benefits \nbeginning  with  the  last  date  of  compensation  and continuing through  a  date  yet to  be \ndetermined.  Medical expenses have been incurred and remain outstanding.  The Claimant was \nalso  scheduled  for  a  hardware  removal  from  his  foot  July  18,  2023,  but  has  not  yet received \nauthorization.  These matters have been controverted for purposes of attorney’s fees.      \nRespondents: \nRespondents contend that the Claimant did not sustain a compensable injury under the \nWorkers’ Compensation Act for which he is entitled to benefits.  Specifically, the Respondents \ncontend that Claimant’s injuries are idiopathic from a condition that is personal in nature to the \nClaimant and therefore did not arise out of and in the course of his employment.  \n          FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on  my  review  of  the  record  as  a  whole,  to  include  the  aforementioned \ndocumentary evidence, other matters properly before the Commission, and after having had an \nopportunity to hear the testimony of the Claimant and observe his demeanor, I hereby make the \nfollowing findings of fact and conclusions of law in accordance with Ark. Code Ann. §11-9-\n704 (Repl. 2012): \n1.      The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n          \nclaim. \n \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.      The preponderance of the evidence proves that the Claimant’s work related  \n \n      incident of August 24, 2022, was the result of an idiopathic condition, and did \n \n not arise out of and in the course of his employment. \n \n\nPatterson- H206533 \n \n4 \n \n4.     All other issues have been rendered moot and not discussed in this opinion.  \n \nSummary of Evidence \nMr. Timothy Patterson (referred to herein as the “Claimant”), was the only witness to \ntestify during the hearing.  \nThe  record  consists  of  the June 19,  2024 transcript and  the following exhibits: \nSpecifically, Commission’s Exhibit 1 includes the Commission’s Prehearing Order filed  on \nApril 10, 2024; Claimant Medical Exhibit consisting of one hundred and nine(109) pages was \nmarked as Claimant’s Exhibit 1; Claimant’s Supplemental Documentary Exhibit consisting of \nfifteen(15)  pages  was  marked  as  Claimant’s  Exhibit  No.  2; and  Respondents’  Exhibit  1 \ncomprises of Respondents’ Medical exhibit consisting of eighty-one (81) pages. \nThe following exhibits were proffered by the parties have not been considered in this \nopinion: Claimant proffered Exhibit 3 is the Claimant’s Deposition taken on September 6, 2023.  \nIt is retained in the Commission’s files; and Respondents proffered Respondents’ Exhibit 2, the \nTraffic Crash Report consisting of twelve (12) pages.   \nThe parties’ respective responsive  filings  were  inadvertently  left  out  of  the  hearing \ntranscript, these pleadings have been blue-backed and marked as Commission’s Exhibit 2.   \n                                                       Testimony \nMr. Timothy Patterson, Claimant  \n The Claimant is 61 years of age.  He has a high school education.  The Claimant has \nbeen a truck driver for approximately 30 years.  Most of his trucking career has entailed over-\nthe-road  truck  driving.   The  Claimant  confirmed  that  he  was  employed  with  M.E.  Transport \nwhen he was involved in an accident on August 24, 2022.  His accident happened in California.  \nHe confirmed that his left foot, ankle, leg, and knee were injured in the accident.  However, the \n\nPatterson- H206533 \n \n5 \n \nClaimant denied having any problems with his upper extremities/arms.   He confirmed that all \nthe injuries were to his left lower extremity.  The Claimant further confirmed that he underwent \ntwo surgeries while in California.          \n Following   his   surgeries,   the   Claimant   came   under   the   care   of   Dr.   Ardoin   at \nOrthoArkansas.  The Claimant confirmed that Dr. Ardoin performed surgery as well.  As of the \ndate of the hearing, the Claimant had not been released to return to work by Dr. Ardoin or any \nother doctor.  He confirmed that he has not received medical treatment from any other doctors.  \nHowever, the Claimant was transported to the Loma Linda Hospital immediately following his \naccident.  Per the Claimant, he was in Baker California going through a construction zone on I-\n5 when his accident occurred.  The Claimant testified that he had cleared the construction zone \nand the next thing he recalls is a lady saying to him, “Just stay still.  I gotta strap you up to a \ngurney  and  life-flight you to Loma Linda.”  He specifically  testified that  he  had  cleared  the \nconstruction zone but does not remember anything else.  According to the Claimant, the next \nthing he remembers is being strapped on the gurney. \n The Claimant confirmed that he has been treated for health issues prior to this accident \ndating back to 2014 and continuing thereafter.  He admitted that he has continued to follow up \nwith his doctor once or twice a year to receive medications for high cholesterol and high blood \npressure.  The Claimant admitted that he has undergone some testing on his carotid arteries to \ndetermine whether he  has plaque  or  blockage  of  his  arteries.   Dr.  Thaxton is the Claimant’s \nprimary  treating  physician  in  this  regard.    The  Claimant  admitted  that  he had  been receiving \ntreatment for TIA’s before his accident happened.  This treatment occurred in May 2022, and \ncontinued into June 2022.   \n\nPatterson- H206533 \n \n6 \n \n He confirmed that to drive a truck, he must pass a DOT physical.  The Claimant admitted \nthat  typically  he  would  have  to  do  a  physical  every  two  years  to  drive  before  having  to  do \nanother physical.  However, due to the Claimant’s conditions, his physical examinations were \ndone yearly.  He agreed that within the time frame of his accident in August of 2022 and August \n2021, he had a DOT physical.  The Claimant testified that he had worked for ME Transport for \nabout two years before his accident took place. \n Regarding his treatment for his accident, the Claimant agreed that he is continuing to \nsee Dr. Ardoin.  The Claimant last underwent evaluation by Dr. Ardoin three months ago.  He \nconfirmed that he continues to have problems with his left leg.  The Claimant testified that he \nhas  symptoms  of numbness  and  swelling  in  his  foot.    He  testified  that  under  his  current \ncondition, he could possibly drive an automatic truck.  However, the Claimant agreed that he \nhas not been released to return to work. \n On cross-examination the Claimant confirmed that the Respondents took his deposition \nabout a year ago.  At that time, the Claimant had just recently had surgery with Dr. Ardoin to \nremove  some  hardware.    The  Claimant  agreed  that  after  his  surgery  he  had  some  follow-up \nappointments with Dr. Ardoin and/or his nurse practitioner. \n Under  further  examination,  the  Claimant  was  questioned  about  an  exhibit  starting  at \npage 105, which shows he was seen at the midtown clinic at OrthoArkansas under the care of \nDanielle Lindley, the nurse practitioner.  Per this document, the Claimant was seen on February \n2, 2024.  At that time, after the nurse examined the Claimant, she stated that he had healed from \nthe arthrodesis.  The nurse also stated that the Claimant was doing well.  However, the nurse \nrecommended that the Claimant continue to massage his heal and showed him how it should be \ndone.   The  nurse  also  told  the  Claimant  to continue  to  perform  activities  as  tolerated.  The \n\nPatterson- H206533 \n \n7 \n \nClaimant admitted that he was not given any restrictions and was told to return to the clinic as \nneeded.      \n The Claimant was asked about what he had been doing on the day of the accident.  He \nconfirmed  that  he  was  in  Salinas,  California.   He confirmed that  he  traveled  from  Salinas  to \nEast Los Angeles/LA because he had some work to do there.  Per the Claimant, his truck was \nloaded up, but he did not have to do the physical part of this work.  However, once this was \ntaken care of in LA, the Claimant started heading back home.  The Claimant admitted that it \nwas his intention to stop in Barstow, but he never made it there.  He admitted that his accident \noccurred around 1:30 a.m. or 1:45 a.m., while going through a construction zone.  The Claimant \nadmitted that he was driving at night, into early morning.  He further admitted that during his \ndeposition, he was asked, “What do you think happened?” The Claimant confirmed that he \nreplied, “I blacked out.”   \n The Claimant admitted that he testified during his deposition that he has no suspicion as \nto what happened, or why things just went blank.  He denied having fallen asleep.  However, \nthe Claimant agreed that he testified during his deposition that, “I think I probably passed out.” \nHe also admitted to having testified: “Everything just went black, blank on me.”                 \n He admitted he has had high blood pressure and high cholesterol dating back ten (10) \nyears.  The Claimant testified that he had been seeing Dr. Dylan Thaxton for at least six or seven \nyears before they shut his office down this year.  Although in 2014, the Claimant reported to \nDr. Thaxton that he had a sensation of what felt like shades/curtains coming down and a loss of \nvision with squiggly lines, he did not recall having told him that.  The Claimant confirmed that \na 2014 report from Dr. Thaxton reads, “Going down -- driving down the road and then got a \nblack haze, squiggly lines, black haze.” “Black haze in my left eye and then going to the right \n\nPatterson- H206533 \n \n8 \n \neye.” He further confirmed having told Dr. Thaxton that this started a couple of years ago.  As \na result, in 2014, Dr. Thaxton sent the Claimant for a Doppler study of his carotid arteries.  The \nClaimant denied undergoing Doppler study every two thereafter although this is what is stated \nin the medical records. \n The  Claimant  admitted  that  he testified  during  his  deposition  that  he  had  stopped \nsmoking about thirteen (13) weeks prior to his deposition.  He confirmed that prior to his last \nsurgery  with  Dr.  Ardoin,  he  has  not  smoked.   The  Claimant agreed  that  at  the  time  of  his \naccident, he was a heavy smoker (at least a pack and a half a day smoker).  The Doppler studies \nshowed that the Claimant had carotid artery blockage or occlusion, but not complete blockage.  \nHe admitted that he continues to need medication for high blood pressure and high cholesterol.   \nThe  Claimant  admitted  that  he  saw  Dr.  Thaxton  on  May  16,  2022,  which  was  three \nmonths before his work accident.  The following exchange took place: \nQ All right.  And you told Dr. Thaxton at that time, you were there because you \nhad an  episode last week while driving, your right arm went numb,  right side of face \ndrooped, and you were drooling, and you had slurred speech.  Do you remember going \nto the doctor for that? \n \nA Yes. \n \nHe admitted that Dr. Hackler took him off work for thirty (30) days and had him on a \nheart monitor.  However, the Claimant was given the approval to go back to work.  The Claimant \nadmitted that he had told Dr. Thaxton about the experience he had back in May and that it was \nnot the first time he had experienced something of this nature.  He admitted that he had a similar \nexperience  on  the  left  side  about  seven  months  before  that.    The  Claimant  admitted  that  he \ntestified  in  his  deposition  that he  was  at  a  truck  stop  when  this  occurred.    At  that  time,  the \nClaimant’s left arm went numb, and he was slurring his speech.  He admitted that he had trouble \nwalking back to his truck but maintained everything cleared up.  \n\nPatterson- H206533 \n \n9 \n \n Further questioning, the following exchange took place: \n Q All right.  And you told me also in your deposition that you had mini strokes. \n A  I have had mini strokes. \n Q  And you had these before the accident in August of 2022, correct? \n A Correct. \nQ All  right.    And  in  this  same  report  you  also  told  Dr.  Thaxton  that  you  had \nepisodes of you’d get dizzy and see spots while you were walking.  You told him \nthat was happening.  Right? \n       \nA Yes. \n \nQ All  right.    And  are  you  aware  that  Dr.  Thaxton  assessed  you  as  having  had  a \ntransient ischemic attack, a T.I.A., at that point and time? \n \nA I don’t know what you call it, but yes. \n \nThe Claimant admitted that they Dr. Thaxton ordered some tests, but they do not really  \n \nprovide an answer for what is going on.  According to the Claimant, he would have episodes of \nnumbness  in  his  arm,  facial drooping, and  slurred  speech out  of  the  blue/unexpectedly.  He \nadmitted that in January of 2023, he was at home and his girlfriend had to call an ambulance \nbecause he was just “starring off” and not responsive.  However, the Claimant admitted he does \nnot  have  any  memory  of  what  was  going  on  while  he  was  in  his  home  starring  off.    Per  the \nClaimant,  all  he  knows  is  that  he  was having  a seizure,  from what  he had been  told.   The \nClaimant admitted that he injured his left leg in the accident, foot, leg, and knee.   \n                                    Adjudication \nCompensability  \n Act  796  of  1993,  as  codified  at Ark.  Code  Ann.  §  11-9-102(4)(A)(i) (Repl.  2012), \nprovides, in pertinent part:   \n (A)\"Compensable injury\" means: \n\nPatterson- H206533 \n \n10 \n \n(4)(i) An  accidental  injury  causing internal  or  external physical  harm  to  the body... \narising out of and in the course of employment and which requires medical services or \nresults in disability or death.  An injury is “accidental” only if it is caused by a specific \nincident and is identifiable by time and place of occurrence[.] \n      \nA compensable injury must be established by medical evidence supported by objective \nfindings.   Ark.  Code  Ann.  §  11-9-102(4)(D) (Repl.  2012).   “Objective findings,” are those \nfindings  which  cannot  come  under  the  voluntary  control  of  the  patient.   Ark. Code  Ann.  § \n11-9-102(16)(A)(i) (Repl. 2012).   \nThe Claimant has the burden of proving that he sustained a compensable injury.  Ark. \nCode Ann. § 11-9-102(4) (E)(i).  Preponderance of the evidence means the evidence that has \ngreater weight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. \n269, 101 S.W.3d 252 (2003).   \nThe Claimant must  prove  a  compensable  injury.   Ark.  Code  Ann.  § 11-9-102(4)(E) \n(Repl.  2012).   A  compensable  injury  is  one  arising  out  of  and  in  the  course  of employment.  \nArk.  Code  Ann.  § 11-9-102(4)(A)(i).   To  prove  a  compensable  injury,  he  must  show  by  a \npreponderance  of  the  evidence  a  causal  relationship  between  his employment  and  the  injury \nwith medical evidence supported by objective findings.  Ark. Code Ann. § 11-9-102(4)(D). \nWhen an employee sustains an “unexplained” injury at work, the injury is compensable.  \nBy contrast, when an employee sustains an “idiopathic” injury at work, the injury is generally, \nnot compensable  because  the  injury  is  personal  in  nature,  and  therefore  does  not  arise  out of  \nand in the course of the employment.  See generally, Little Rock Convention Visitors Bureau v. \nPack, 60 Ark. App 82, 959 S.W. 2d 415 (1997).     \n  After reviewing the evidence in this case impartially, without giving the benefit of the \ndoubt to either party, based on the current evidence before me, I find that the Claimant did not \nprove by a preponderance of the credible evidence that he sustained a compensable injury. \n\nPatterson- H206533 \n \n11 \n \n In the case at bar, the Claimant has an extensive medical history of episodes of seizure \nlike occurrences.  He has had several mini strokes and TIA’s.  His testimony demonstrates that \nthe Claimant has had events of memory loss and not being able to recall pre-seizure events.  The \nClaimant has well known health issues, particularly that of known reporting by his doctors of \nischemic  attacks.   The  Claimant  admitted  that  he  has had  multiple  mini  strokes  prior  to  this \naccident in  August  of  2022.  In  fact,  the  Claimant  has  a  long-standing  history  of  continuing \ntreatment for high cholesterol and high blood pressure dating back a decade prior to his accident.  \nHe admitted that at the time of his accident he was a heavy smoker dating back several years \nbefore his accident.  For these reasons, I am not persuaded that the Claimant’s accident is an \nunexplained injury. \n Specifically,  at the time, of the Claimant’s accident, he was driving in California, \nthrough a construction zone.  He was no longer within the barrels and was at the highway where \nnorth from south is divided by a concrete barrier.  It is established by the Claimant’s own \ntestimony that he “blacked out.”  This was a one-vehicle accident.  Most specifically, there were \nother trucks  or  vehicles  on the  road  in  front  of  him,  beside  him,  or  behind  him  during  the \naccident.  The weather conditions were good, and the roads were clear.  No evidence whatsoever \nhas been presented here to indicate that there was any problem whatsoever with the Claimant’s \ntruck.  Something happened to the driver, which caused the accident.  Such accident happened \nbecause of driver error, which resulted from the Claimant most likely having blacked out while \ndriving.   As  noted  above,  the  evidence clearly demonstrates  that  the  Claimant  was  known  to \nhave  seizures.   The  aforementioned conditions and  events  have  led  to  my  conclusion the \nClaimant’s work-related accident is not unexplained.   This injury was something personal in \nnature  that  happened  to  the  Claimant.   The  Claimant  was  aware  that  he  was  having syncope \n\nPatterson- H206533 \n \n12 \n \nepisodes,  wherein “everything  would  go  black.”  He also had episodes of TIA’s prior  to  his \naccident  of  August  2022.    Here,  the  evidence  clearly proves that  the  Claimant  experienced \nidiopathic  seizures and  mini  strokes  which  is not  directable  attributable his  workplace  truck \naccident.  Also, just months prior to his accident, the Claimant experienced an episode of his \nleft  arm  going  numb,  accompanied  by  slurring  his  speech,  but  this  cleared  up  on  its own.  \nAdditionally, the Claimant admitted that Doppler studies showed that the Claimant had carotid \nartery blockage or occlusion, but not complete blockage.  Here, the Claimant was well aware \nof his idiopathic conditions of “blacking out” that would arise spontaneously without a direct \ncause.    \nTherefore, after consideration of all the evidence before me, I find that the Claimant has \nfailed  to  meet  his  burden  on  proof of  a  compensable  injury.  Specifically, the  evidence \npreponderates that the Claimant’s injury is idiopathic and not compensable because the injury \nis personal in nature, and therefore did not arise out of and in the course of the Claimant’s \nemployment.  Hence, the Claimant did not sustain a compensable injury on August 24, 2022, \nwhen  he was  involved  in  a one-motor  vehicle  accident.   Therefore,  this  claim  is  denied  and \ndismissed \n                                             ORDER \nThe Claimant has failed to prove by a preponderance of the credible evidence that he \nsustained a compensable work injury on August 24, 2022, while performing employment duties \nfor  the respondent-employer/ME  Transport  as  a  truck  driver. The  Claimant  sustained  an \nidiopathic  injury  during  his  one-motor vehicle  accident.   Therefore, this  claim is  hereby \nrespectfully denied and dismissed in its entirety.  All other issues have been rendered moot and \ndiscussed herein this Opinion.       \n\nPatterson- H206533 \n \n13 \n \n      IT IS SO ORDERED. \n \n        \n______________________________ \n                                                                        CHANDRA L. BLACK \n                                                  ADMINISTRATIVE LAW JUDGE","textLength":23852,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H206533 TIMOTHY PATTERSON, EMPLOYEE CLAIMANT M. E. TRANSPORT, LLC, EMPLOYER RESPONDENT CAROLINA CASUALTY INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 27, 2024 Hearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, Litt...","outcome":"denied","outcomeKeywords":["dismissed:2","denied:4"],"injuryKeywords":["knee","ankle","back"],"fetchedAt":"2026-05-19T22:46:59.355Z"},{"id":"alj-H304447-2024-11-26","awccNumber":"H304447","decisionDate":"2024-11-26","decisionYear":2024,"opinionType":"alj","claimantName":"Cruz Mendez","employerName":"Whistle Lumber Co., Inc","title":"MENDEZ VS. WHISTLE LUMBER CO., INC. AWCC# H304447 November 26, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MENDEZ_CRUZ_H304447_20241126.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MENDEZ_CRUZ_H304447_20241126.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H304447 (inclusive of H304518) \n \n \nCRUZ A. MENDEZ,  \nA/KA/ ARCHIBALDO GUZMAN,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nWHISTLE LUMBER CO., INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nWESCO INS. CO./AMTRUST NORTH AMERICA, \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED NOVEMBER 26, 2024 \n \nHearing conducted on Thursday,   November 21, 2024, before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in \nHope, Hempstead County, Arkansas. \n \nThe  claimant,  Mr. Cruz  A.  Mendez,  a/k/a  Archibaldo  Guzman,  pro  se,  of Hope,  Hempstead \nCounty, Arkansas, failed and/or refused to appear at the hearing.  \n \nThe respondent was represented by the Honorable William C. “Bill” Frye, Frye Law Firm, North \nLittle Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Thursday, November 21, 2024, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n        The claimant also is known as and goes by the name of Archibaldo Guzman, and a Form AR-\n2 was filed for this same claimant arising out of the same alleged injury and injury date in AWCC \nNo. H304518. Consequently, the Commission’s Compliance Division consolidated the single \nclaimant and two (2) claim numbers into a single claim number, AWCC No. H304447. (Hearing \nTranscript; Respondents’ Exhibits 1-4). \n\nCruz A. Mendez, a/k/a Archibaldo Guzman, AWCC No. H304447 (inclusive of H304518) \n2 \n \n       The  claimant herein  previously was represented  by  counsel, Mark  Alan  Peoples.  By  Full \nCommission  order  filed August  7,  2024, the  Full  Commission  granted Mr. Peoples’s request  to \nwithdraw as the claimant’s counsel. Soon thereafter, by a letter motion filed with the Commission \non  August  14,  2024 (MTD), the  respondents  requested  this  claim  be  dismissed  for  lack  of \nprosecution  pursuant  to  the  aforementioned  statute  and  Commission  rule. (T.;  Respondents’ \nExhibits 1-4). \n        In compliance with the applicable law the claimant was provided due and legal notice of the \nrespondents’ MTD as well as the date, time, and location of the subject hearing. The claimant did \nnot respond in writing to the respondents’ motion in  any  way,  and he failed  and/or  refused  to \nappear at the subject hearing. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion \nto dismiss. Rather than recite a detailed analysis of the record, suffice it to say the preponderance \nof  the  evidence  introduced  at  the  hearing and  contained  in  the  record conclusively  reveals  the \nclaimant has failed and/or refused to either request a hearing within the last six (6) months, and he \nhas taken no steps whatsoever to prosecute this claim. \n        Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the applicable  law, the \nrepresentations  of credible counsel, and  other relevant matters  of  record,  I  hereby  make  the \nfollowing: \n\nCruz A. Mendez, a/k/a Archibaldo Guzman, AWCC No. H304447 (inclusive of H304518) \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having been  mailed due  and  legal  notice  of the respondents’ letter MTD without \nprejudice filed with  the  Commission  on  August 14,  2024,  as  well  as notice  of the date, \ntime, and place of the subject hearing, the claimant failed and/or refused to respond in any \nway to the respondents’ letter MTD  and  failed  and/or  refused  to  appear at  the  hearing. \nTherefore, the claimant is deemed to have waived his right to a hearing on the respondents’ \nMTD. \n \n3. The claimant has not requested a hearing within the last six (6) months, and he has failed \nand/or refused to prosecute this claim. \n \n4. The respondents’ letter MTD without  prejudice  filed August 14,  2024,  should be  and \nhereby is GRANTED; and this claim is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n        This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \nMP/mp \n \n \n\nCruz A. Mendez, a/k/a Archibaldo Guzman, AWCC No. H304447 (inclusive of H304518) \n4","textLength":6053,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304447 (inclusive of H304518) CRUZ A. MENDEZ, A/KA/ ARCHIBALDO GUZMAN, EMPLOYEE CLAIMANT WHISTLE LUMBER CO., INC., EMPLOYER RESPONDENT WESCO INS. CO./AMTRUST NORTH AMERICA, CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED NOVEMBER 26, 20...","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:46:55.196Z"},{"id":"alj-H208850-2024-11-26","awccNumber":"H208850","decisionDate":"2024-11-26","decisionYear":2024,"opinionType":"alj","claimantName":"Rickey White","employerName":"Little Rock Hauling","title":"WHITE VS. LITTLE ROCK HAULING AWCC# H208850 November 26, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/White_Rickey_H208850_20241126.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"White_Rickey_H208850_20241126.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208850 \n \nRICKEY WHITE, \nEMPLOYEE                                                                                                              CLAIMANT \n \nLITTLE ROCK HAULING, \nEMPLOYER                                                                                                         RESPONDENT  \n \nINDEMNITY INS. CO. OF NORTH AMERICA, \nINSURANCE CARRIER                                                                                     RESPONDENT  \n \nESIS, INC., \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED NOVEMBER 26, 2024 \n \nHearing conducted on Wednesday, November 6,   2024,  before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in \nLittle Rock, Pulaski County, Arkansas. \n \nThe Claimant, Mr. Rickey White, Pro Se, of Benton, Arkansas, did appear in person at the hearing.  \n \nThe Respondents were represented by the Honorable Melissa Wood, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents.  \nA hearing on the motion was conducted on November 6, 2024, in Little Rock, Arkansas.  Claimant, \naccording to Commission file, is Pro Se.  \nThe Claimant worked for the Respondent/Employer as a driver. The date for Claimant’s \nalleged injury was on November 17, 2022. He reported his injury to Respondent/Employer that \nsame day. Respondents admitted into evidence Respondents’ Exhibit 1, pleadings, consisting of 8 \npages. Also admitted  into  evidence  was  blue-backed Pre-Hearing  Order  filed  July  19,  2023, \nMelissa Wood letter dated August 4, 2023, Melissa Wood letter dated January 6, 2023, a copy of \n\nWHITE, AWCC No. H208850 \n \n2 \n \ncertified  return  receipt returned  to  the  Commission dated October  19,  2024, a  copy  of  certified \nreturn receipt returned to the Commission on September 27, 2024, and copy of hearing notice, as \ndiscussed infra. \nThe record reflects on December 20, 2022, a Form AR-C was filed with the Commission, \nby then-attorney, Laura Beth York, purporting that Claimant injured his right shoulder, right hip, \nand right arm. Attorney Melissa Wood entered her appearance on behalf of the Respondents on \nDecember 28, 2022. On January 5, 2023, a Form AR-1 was filed with the Commission purporting \nthat  Claimant’s injuries  occurred  when  he tripped  over  an  iron  stopper. On January  6,  2023, \nRespondents  filed  a  letter, on  the  behalf  of  Respondents, accepting  compensability  of  the  right \nshoulder, and right upper leg injuries. The letter also confirmed that benefits were being paid. A \nPre-Hearing Conference was held on July 19, 2023, and a subsequent Pre-Hearing Order was filed \nthe  same  date. On  January  5,  2023,  a  Form  AR-2  was  filed by  Respondents with  no  language \ndenying compensability of the injury.  \nOn July 19, 2023, a prehearing telephone conference was held followed by a Pre-Hearing \nOrder  filed  the  same  day. The Order  scheduled  a  full  hearing  for  September  20,  2023,  at  the \nCommission. On August 4,  2023, Respondents  submitted  a  letter  agreeing  to  the  surgery  the \nClaimant wanted and requested that the September 20, 2023, hearing be canceled since no other \nissues were in dispute. The request was granted, and the full hearing was canceled. On August 8, \n2024, Claimant’s counsel filed a Motion to Withdraw as Counsel. The Full Commission granted \nClaimant’s counsel Motion on August 30, 2024.  \nThe  Respondents  next filed  a Motion to  Dismiss  on September  6,  2024, requesting  this \nclaim be dismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. \nMail, notice of the Motion to Dismiss from my office on September 11, 2024, to his last known \n\nWHITE, AWCC No. H208850 \n \n3 \n \naddress. The certified motion notice was unclaimed by Claimant as noted on the September 27, \n2024,  return  receipt. The motion notice that was sent  regular  U.S.  Mail  was  not  returned  to  the \nCommission. Claimant did not provide a new address of record. Nevertheless, in accordance with \napplicable Arkansas law, the Claimant was mailed due and proper legal notice of Respondents’ \nMotion to Dismiss hearing date at his current address of record via the United States Postal Service \n(USPS),  First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-Class  Mail,  on \nOctober 3, 2024. The certified notice was not claimed according to the October 19, 2024, return \nnotice; but the regular First-Class mail hearing notice was not returned to the Commission. The \nhearing took place on November 6, 2024. And as mentioned before, the Claimant did show up to \nthe hearing. \nThe  Claimant  agreed  to  the  Motion  to  Dismiss  during  the  hearing.  I  have  advised  the \nClaimant, several times, that he does have the right to hire other counsel since his former attorney, \nLaura Beth York, withdrew from his case. I have further advised him of the Commission’s legal \nadvisers  that  could  assist  him,  for  free,  with  his  claim. Despite  the  repeated  admonition  the \nClaimant  expressed  his  need  to  work  and  that  he  will  not  contest  the  dismissal.  Claimant  did, \nhowever, voice his concern about the worsening of his injury since he continues to feel numbness. \nClaimant also advised that he has received his last benefit payment a week before this scheduled \nmotion hearing. The Claimant and Respondents’ counsel had a conversation off record about \nfuture claims. There the Claimant learned that he could refile his claim within a year of his last \nbenefit  payment;  something  he  expressed  when  all  parties  were  back  on  the  record. With  this \nunderstanding, the Claimant again expressed to the Commission, that he agrees with the dismissal \nwithout prejudice. \n \n\nWHITE, AWCC No. H208850 \n \n4 \n \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the November 6, \n2024, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nConsistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith  reasonable  notice, on  the Respondents’ Motion  to Dismiss. Though  the  certified  hearing \nnotice was unclaimed, that same notice was also sent to the Claimant’s address of record by First-\nClass U.S. Mail on October 3, 2024, and did not return to the Commission. The Claimant appeared \n\nWHITE, AWCC No. H208850 \n \n5 \n \nat  the  hearing  and  argued  his  position. Thus,  I  find  by  the  preponderance  of  the  evidence  that \nreasonable notice was given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  his Form  AR-C  on \nDecember  20, 2023. Since the filing of Claimant’s Form AR-C  then,  he  has  failed  to  request  a \nhearing. Moreover,  the  Claimant has  verbally  agreed on  the  record, to  the  dismissal  without \nprejudice. Therefore, I do find by the preponderance of the evidence that Claimant has failed to \nprosecute his claim by failing to request a hearing. Thus, Respondents’ Motion to Dismiss should \nbe granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law  set  forth  above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":8644,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208850 RICKEY WHITE, EMPLOYEE CLAIMANT LITTLE ROCK HAULING, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA, INSURANCE CARRIER RESPONDENT ESIS, INC., TPA RESPONDENT OPINION FILED NOVEMBER 26, 2024 Hearing conducted on Wednesday, November 6, 2024, bef...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["shoulder","hip","back"],"fetchedAt":"2026-05-19T22:46:57.306Z"},{"id":"alj-H400020-2024-11-25","awccNumber":"H400020","decisionDate":"2024-11-25","decisionYear":2024,"opinionType":"alj","claimantName":"Amanda Grayham","employerName":"Prestonrose Farm & Brewing","title":"GRAYHAM VS. PRESTONROSE FARM & BREWING AWCC# H400020 November 25, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GRAYHAM_AMANDA_H400020_20241125.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRAYHAM_AMANDA_H400020_20241125.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H400020 \n \nAMANDA GRAYHAM, Employee                                                                   CLAIMANT \n \nPRESTONROSE FARM & BREWING, Employer                                    RESPONDENT \n \nEMPLOYERS PREFERRED INSURANCE CO., Carrier                          RESPONDENT \n                                               \n \n \n \n OPINION FILED NOVEMBER 25, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   GREGORY   K.   STEWART   in \nRussellville, Pope County, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents represented by JAMES A. ARNOLD, II, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On November  7,  2024,  the  above  captioned  claim  came  on  for  hearing  at \nRussellville,  Arkansas.    A pre-hearing  conference  was  conducted  on August  14,  2024, \nand a pre-hearing order was filed on that same date.  A copy of the pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The  employee/employer/carrier  relationship  existed  among  the  parties  on \nAugust 26, 2023. \n 3.       The respondent has controverted this claim in its entirety. \n\nGrayham (H400020) \n 2 \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s left arm on August 26, 2023. \n2.    Related medical. \n3.     Temporary total disability benefits from November 9, 2023 through April 1,  \n2024. \n 4.      Compensation rates. \n The claimant contends she suffered a compensable injury to her left arm on August \n26, 2023.  She requests payment of medical benefits and temporary total disability from \nNovember 9, 2023 through April 1, 2024. \n The respondents contend the claimant’s condition does not meet the definition of \na compensable injury.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non August 14, 2024, and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she suffered a compensable injury to her left arm on August 26, 2023. \n 3.     Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \n\nGrayham – H400020 \n \n3 \n \ntreatment provided connection with claimant’s compensable injury. \n 4.   Claimant has met her burden of proving by a preponderance of the evidence \nthat  she  is  entitled  to temporary total  disability  benefits  beginning  November  15,  2023, \nand continuing through March 11, 2024.  Respondent is entitled to a credit for the period \nof time in which claimant received unemployment compensation benefits. \n 5.   Claimant earned an average weekly wage of $382.00 which would entitle her \nto compensation at the rates of $255.00 for temporary total disability benefits and $191.00 \nfor permanent partial disability benefits. \n \nFACTUAL BACKGROUND \n \n \n Claimant began working for respondent in July 2022 as a waitress.  She testified \nthat her job duties required her to seat customers, take orders, process orders, and deliver \norders as well as beverages to customers. \n Claimant  testified  that  on  August  26,  2023,  she  was  unloading  a  rack  of  pint \nglasses that had been washed and dried.  While she was in the process of taking glasses \nout of a wet rack and putting them into a dry rack the following occurred: \n \n  So from a standing position, I am standing like this \n  (indicating), pint glass in my right hand, rack is to my \n  left where I was placing them.  This top rack was full. \n  I reached out with my left hand, took my two middle \n  fingers and slid them into the opening in the rack that \n  would allow me to lift that full rack up and place the \n  glass in an empty spot down in the bottom. \n \n  When I did that, I felt a pulling, popping sensation.  It \n  caused tingling, burning from here to here (indicating). \n \n\nGrayham – H400020 \n \n4 \n \n      *** \n \n  On the interior of my left arm between the crease in \n  my elbow and my thumb, about two inches from the \n  crease in my elbow. \n \n \n Claimant reported the injury to her supervisor, Elizabeth Preston, and was asked \nwhether she wanted to seek medical treatment.  Claimant indicated that she did not wish \nto seek medical treatment at that time and continued performing her job for the rest of the \nday. \n In fact, claimant continued performing her job for the respondent as a waitress until \nNovember 9, 2023.  At that time, the respondent was in the process of closing its facility \nin Paris and moving to a location in Clarksville.  On its last day of business at the Paris \nlocation,  claimant  testified  that  she  was  extremely busy  and  had  increased  pain  in  her \narm.  As a result, she did request medical treatment on that day and was eventually seen \nby William Walker, a nurse practitioner, on November 15, 2023.  It should be noted that \nclaimant did not return to work for respondent after November 9, 2023. \n Walker diagnosed claimant’s condition as a strain of muscles, fascia, and tendons \nin the claimant’s forearm.   \n Claimant was subsequently seen by Antoinette Johnson, a nurse practitioner, on \nNovember 27, 2023, and at that time was referred for an orthopedic evaluation.  Claimant \nwas eventually seen by Dr. Michael Hussey, an orthopedic surgeon, on December 20, \n2023.  Dr. Hussey noted that an x-ray of the claimant’s elbow showed no obvious signs \nof  trauma,  deformity,  or  lesions  around  the  elbow  joint.    He  also  noted  that  the \nulnohumeral and radiocapitellar joints were well aligned.  Dr. Hussey assessed claimant’s \n\nGrayham – H400020 \n \n5 \n \ncondition as lateral epicondylitis versus a partial-thickness extensor tear.  He ordered an \nMRI scan of the claimant’s left elbow which was performed on December 29, 2023.  The \nMRI scan contains the following impression: \n1.   Lateral epicondylitis, manifested by focal low-grade \nintrasubstance tearing of the common extensor tendon \ngroup, on a background of moderate tendinosis. \n2.    Mild common flexor tendinosis. \n3.    Mild distal biceps tendinosis. \n \n \nFollowing the MRI scan Dr. Hussey referred claimant to physical therapy for lateral \nepicondylitis.  Claimant testified that she was not confident in Dr. Hussey and as a result \nshe  sought  medical  treatment  from  Dr.  Owen  Kelly,  another  orthopedic  surgeon.  \nClaimant’s  initial  evaluation  with  Dr.  Kelly  occurred  on  March  11,  2024.    Dr.  Kelly \nacknowledged  that  while  claimant’s  MRI  scan  showed  lateral  epicondylitis,  it  was  his \nopinion  that  claimant’s pain was  localized  more  in  her  bicep tendon.    Furthermore,  he \nopined  that  her  examination  and  the  mechanism  of  injury  was  more  consistent  with  a \nbicep strain/sprain.    He  recommended that  claimant  discontinue  the  use  of  her  elbow \nbrace and instead use anti-inflammatories and therapy exercises. \n On that same date Dr. Kelly authored a letter to claimant stating as follows: \n  As you know, we had the opportunity to talk about your \nleft elbow and I really believe that you partially strained \nor sprained your biceps tendon when you were lifting.  I \nknow you have been told you have lateral epicondylitis  \nand I am not disagreeing with that, but your pain seems \nto localize more to your bicep tendon. \n \n \n Claimant has filed this claim contending that she suffered a compensable injury to \nher left arm on August 26, 2023.  She seeks payment of related medical benefits as well \n\nGrayham – H400020 \n \n6 \n \nas temporary total disability benefits from November 9, 2023 through April 1, 2024. \n \nADJUDICATION \n As previously noted, claimant contends that she suffered a compensable injury to \nher left arm while lifting a rack on August 26, 2023.  Claimant’s claim is for a specific injury \nidentifiable by time and place of occurrence.    In order to prove a compensable injury as \nthe  result  of  a  specific  incident  that  is  identifiable  by  time  and  place  of  occurrence,  a \nclaimant must establish by a preponderance of the evidence (1) an injury arising out of \nand in the course of employment; (2) the injury caused internal or external harm to the \nbody  which  required  medical  services  or  resulted  in  disability  or  death;  (3)  medical \nevidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was \ncaused by a specific incident identifiable by time and place of occurrence.  Odd Jobs and \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has met her burden of proof.   \n Initially, I note that respondent does not dispute that an incident was reported on \nAugust  26,  2023.    Testifying  at  the  hearing was  Elizabeth  Preston, the owner/operator \nwith her husband of the respondent.  Preston acknowledged that on August 26, claimant \nreported  an  injury  to  her  left  arm  and  Preston  asked  claimant  if  she  needed  to  seek \nmedical treatment.  Claimant indicated that she did not need to go to the doctor but would \nbe fine.  Preston further testified that during the period of time claimant continued to work \nthere she repeatedly asked claimant how her left arm was and offered to send her to the \ndoctor  on  several  occasions,  but  claimant  refused.    Finally,  Preston  testified  that  on \n\nGrayham – H400020 \n \n7 \n \nNovember 9, 2023, the last day of respondent’s operation in Paris, claimant indicated that \nher left arm was hurting worse than ever and at that point Preston informed claimant that \nshe  had  to  go  to  the  doctor.      Claimant  subsequently  sought  medical  treatment  from \nWilliam Walker, a nurse practitioner, on November 15, 2023.   \n Based upon the claimant’s testimony as well as the testimony of Preston and the \nhistory contained in the medical records which is consistent with claimant’s testimony, I \nfind that claimant has met her burden of proving by a preponderance of the evidence that \nher injury arose out of and in the course of her employment with respondent and that the \ninjury was caused by a specific incident identifiable by time and place of occurrence. \n I also find that claimant has proven that her injury caused internal harm to her body \nthat required medical services or resulted in disability and that she has offered medical \nevidence supported by objective findings establishing an injury.  Respondent’s primary \ncontention in this case is that there are no objective findings establishing a specific injury \nto claimant’s left arm.  In support of this contention, respondent relies in part upon a report \nwritten  by  Dr.  Theodore  Hronas,  a  board  certified  radiologist.    Dr.  Hronas  reviewed \nclaimant’s radiographs as well as the MRI scan of her left elbow.  In a report dated July \n10, 2024, he stated: \n  Radiographs of the left elbow, 12/20/23, were performed \n  Approximately four months after the date of injury.  The \n  radiographs are normal with no evidence of a fracture or \n  soft tissue injury. \n \n  The MRI of the left elbow, 12/29/2023, was performed \n  approximately four months after the date of injury.  The \n  exam shows no evidence of fracture or bone marrow \n  edema.  There is normal radial head articulation and \n  maintenance of the articular cartilage.  There is no \n  evidence of osteoarthritic change or osteochondral  \n\nGrayham – H400020 \n \n8 \n \n  injury.  The medical, lateral, and radial collateral \n  ligaments are intact.  There is increased T2 signal \n  intensity and mild thickening of the common extensor \n  tendon at the attachment with the lateral epicondyle \n  consistent with lateral epicondylitis.  The common \n  flexor tendon is intact.  There is mild increased \n  signal intensity involving the biceps tendon insertion \n  at the radial tuberosity.  The brachialis and triceps \n  tendons are normal.  There is no evidence of muscle \n  injury or soft tissue contusion. \n \n  In summary, there is evidence of mild chronic lateral \n  epicondylitis and mild chronic distal biceps tendinosis. \n  These changes are secondary to overuse syndromes \n  and not related to a single injury event.  Specifically, \n  there are no objective findings of either a recent or \n  remote injury of the left elbow. \n \n \n While Dr. Hronas does acknowledge that objective findings are present, it is his \nopinion that  those  findings  are  secondary  to  overuse  syndromes  and  not  related  to  a \nspecific injury.  Accordingly, respondent contends that since claimant is alleging a specific \ninjury there are no objective findings supporting a specific injury.  However, the MRI scan \nfrom December 29, 2023, was interpreted as showing a tearing of the common extensor \ntendon  group  as  well  as  lateral  epicondylitis  and  biceps  tendinitis.    Following  that  MRI \nscan Dr. Hussey diagnosed claimant’s condition as lateral epicondylitis and referred her \nto physical therapy. \nIn addition, claimant sought medical treatment from Dr. Owen Kelly, an orthopedic \nsurgeon, who evaluated the claimant on March 11, 2024.  Dr. Kelly stated that although \nthe  MRI  scan  showed  lateral  epicondylitis,  it was  his  belief  that  claimant’s  exam  and \nmechanism  of  injury  was  more  consistent  with  a  biceps  sprain/strain.    In  his  letter  to \nclaimant  dated  March  11,  2024,  he  stated  that  he  believed  the  claimant  had  partially \n\nGrayham – H400020 \n \n9 \n \nstrained or sprained her biceps tendon when she was lifting.  Dr. Kelly specifically stated \nthat  claimant’s  MRI  scan  of  her  left  elbow  revealed  lateral  epicondylitis  and  some \ntendinitis  of  the  bicep.    This  objective  finding  coupled  with  his  opinion  that  claimant \npartially  strained  or  sprained  her  biceps  tendon  when  she  was  lifting  satisfies  the \nrequirement of compensability. \n While  Dr.  Hronas  is  of  the  opinion  that  these  findings  do  not  support  a  specific \nincident but rather a cumulative type injury, Dr. Kelly’s opinion indicates that the objective \nfindings do support a finding that claimant partially strained or sprained her biceps tendon \nwhen she was lifting on August 26, 2023.  Dr. Kelly is an orthopedic surgeon as opposed \nto a radiologist, and I find that his opinion is entitled to great weight.  With respect to the \nissue  of  compensability, I further  note  that  there  is  no  indication that  claimant  had  any \nprior  complaints  with  her  left  arm  before  August  26,  2023.   Furthermore,  claimant \ncontinued to have complaints involving her left arm even after the incident on August 26, \n2023.  This is evident not only from claimant’s testimony but also from the testimony of \nPreston who testified that after August 26, 2023, she repeatedly asked claimant how her \narm  was  and  offered  to  send  claimant  to  the  doctor  on  several  occasions.    If  claimant \nwere  not  continuing  to  have  issues  involving  her  left  arm,  there  would  have  been  no \nreason for Preston to repeatedly ask her if she needed to seek medical treatment. \n In summary, after reviewing the evidence in this case impartially, without giving the \nbenefit of the doubt to either party, I find that claimant has met her burden of proving by \na preponderance of the evidence that she suffered a compensable injury to her left arm \non August 26, 2023. \n In making this finding, I have relied on the testimony of the claimant, the testimony \n\nGrayham – H400020 \n \n10 \n \nof  Preston,  and  the  medical  records.    I  have  not  given  any  weight  to  two  transcripts \nsubmitted by the claimant which purport to be reflections of her conversations with Drs. \nHussey and Kelly.  Claimant testified at the hearing that she had concerns about being \nable  to  accurately  remember  and  inform  her  family  about  her  discussions  with  Drs. \nHussey and Kelly.  As a result, claimant secretly recorded those conversations.  Neither \nDr. Hussey nor Dr. Kelly were aware that their conversations were being recorded.  I find \nthat these recordings are hearsay.  They are statements made out of court for the purpose \nof proving the matters asserted therein.  Neither Dr. Hussey nor Dr. Kelly were present at \nthe hearing and neither was provided a copy of these transcripts to determine whether \nthey  accurately  reflected  the  conversation  or  whether  further  clarification  was  needed.  \nWhile they are purportedly transcripts of conversations between claimant and her medical \nproviders,  they  are  not  medical  reports  and  therefore  do  not  come  within  the  hearsay \nexception under Arkansas Workers’ Compensation law.  Ordinarily, medical reports are \nsubmitted  as  an  exception  to  the  hearsay  rule;  however,  in  this  case,  these  are  not \nmedical   reports   prepared   by   the   treating   physicians   but   instead   purport   to   be \ntranscriptions of conversations between claimant and Dr. Hussey and claimant and Dr. \nKelly which was were taken without their knowledge or consent.  Therefore, I have given \nno weight to statements made in those transcripts. \n Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment  provided  in  connection  with  claimant’s  compensable  injury.    I  also  find  that \nclaimant is entitled to temporary total disability benefits beginning November 15, 2023, \nand continuing through March 11, 2024.  Claimant’s injury to her left arm is a scheduled \ninjury.  An employee who has suffered a scheduled injury is entitled to receive temporary \n\nGrayham – H400020 \n \n11 \n \ntotal disability benefits during the healing period or until they return to work, regardless of \nwhether  they  are  totally  incapacitated  from  earning  wages.   Wheeler  Construction \nCompany v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).  In this particular case, \nI find that claimant entered her healing period and was taken off work when she initially \nsought medical treatment from Walker, the nurse practitioner, on November 15, 2023.  In \na  follow-up  note  dated  November  27,  2023,  Antoinette  Johnson,  a  nurse  practitioner, \nindicated that claimant was unable to return to work and stated that an estimated return \ndate was unknown.  Claimant testified that she did not return to work for any employer \nuntil after she was seen by Dr. Kelly on March 11, 2024.  Accordingly, based upon this \nevidence, I find that claimant remained in her healing period and that she had not returned \nto work beginning on November 15, 2023, and continuing through March 11, 2024, when \nshe was seen by Dr. Kelly. \n Claimant   testified   that   during   January,   February   and   March   she   received \nunemployment compensation benefits.  Pursuant to A.C.A. §11-9-506, compensation for \ntemporary  total disability  benefits  shall not be  payable  to an   injured  employee  for any \nweek  during  which  they drew unemployment  compensation  benefits.    Therefore,  while \nclaimant has been awarded temporary total disability benefits from November 15, 2023 \nthrough March 11, 2024, claimant is not entitled to benefits for any weeks during which \nshe also drew unemployment compensation benefits. \n The  next  issue  for  consideration  involves  claimant’s  compensation  rate.    The \nclaimant  submitted  into  evidence  paystubs  for  her  earnings  dating  from  November  10, \n2022 through November 17, 2023.  In addition, claimant attached a sheet summarizing \nher payments for the last 51 weeks of work with a total of $19,362.28.  However, average \n\nGrayham – H400020 \n \n12 \n \nweekly wages are to be determined at the time of the accident and wages earning after \nthe  accident  are  not  to  be  considered.    Accordingly,  I have based  claimant’s  average \nweekly wage on the wages she earned beginning with the date of November 10, 2022, \nand continuing through August 25, 2023, the date before her injury.  Claimant’s wages \nreflect that she earned a total of $15,295.86 during 40 weeks of work.  This results in an \naverage weekly wage of $382.00 per week which would entitle claimant to compensation \nat  the  rates  of  $255.00 per  week  for  total disability benefits  and $191.00  per  week  for \npermanent partial disability benefits. \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe suffered a compensable injury to her left arm on August 26, 2023.  Respondent is \nliable  for  payment  of  all  reasonable  and  necessary  medical  treatment  provided  in \nconnection  with  claimant’s  compensable  injury.    Claimant  is  entitled  to temporary total \ndisability  benefits  from  November  15,  2023  through  March  11,  2024.   Claimant  is  not \nentitled  to  temporary  total  disability  benefits  for  any  weeks  during  which  she  received \nunemployment compensation benefits.  Finally, claimant earned an average weekly wage \nof $382.00 which would entitle her to compensation at the rates of $255.00 for temporary \ntotal disability benefits and $191.00 for permanent partial disability benefits. \n Respondent  is responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $613.65. \n All sums herein accrued are payable in a lump sum without discount. \n \n\nGrayham – H400020 \n \n13 \n \n IT IS SO ORDERED. \n \n     _________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":22230,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H400020 AMANDA GRAYHAM, Employee CLAIMANT PRESTONROSE FARM & BREWING, Employer RESPONDENT EMPLOYERS PREFERRED INSURANCE CO., Carrier RESPONDENT OPINION FILED NOVEMBER 25, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Russellville, Pope ...","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":["strain","sprain","fracture"],"fetchedAt":"2026-05-19T22:46:53.127Z"},{"id":"full_commission-H304280-2024-11-21","awccNumber":"H304280","decisionDate":"2024-11-21","decisionYear":2024,"opinionType":"full_commission","claimantName":"Larry Zintel","employerName":"Pulaski County Road & Bridge","title":"ZINTEL VS. PULASKI COUNTY ROAD & BRIDGE AWCC# H304280 November 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Zintel_Larry_H304280_20241121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Zintel_Larry_H304280_20241121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H304280  \n \nLARRY M. ZINTEL, \nEMPLOYEE \n \nCLAIMANT \nPULASKI COUNTY ROAD & BRIDGE,  \nEMPLOYER \n \nRESPONDENT \nAAC RISK MANAGEMENT SERVICES, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED NOVEMBER 21, 2024  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MARK A. PEOPLES, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \n \n ORDER \n The parties in the above-styled matter have filed a MOTION FOR \nADDITIONAL TIME.  The Full Commission grants the parties’ motion.   \n An administrative law judge filed an opinion on March 5, 2024.  The \nadministrative law judge found that the claimant proved he sustained a \ncompensable injury.  The administrative law judge awarded medical \ntreatment and temporary disability benefits.  The respondents filed a notice \nof appeal to the Full Commission.   \n On May 21, 2024, the Full Commission granted a joint MOTION TO \nSTAY PROCEEDINGS/APPEAL.  The parties now ask the Full \nCommission to stay the proceedings for “a period of up to three (3) \n\nZINTEL - H304280  2\n  \n \n \nadditional months[.]”  The parties assert that “CMS approval” of a Medicare \nSet Aside Evaluation must be obtained before a Joint Petition hearing can \nbe held.   \n The Full Commission therefore grants the MOTION FOR \nADDITIONAL TIME. \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1750,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H304280 LARRY M. ZINTEL, EMPLOYEE CLAIMANT PULASKI COUNTY ROAD & BRIDGE, EMPLOYER RESPONDENT AAC RISK MANAGEMENT SERVICES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 21, 2024","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.817Z"},{"id":"alj-H300539-2024-11-21","awccNumber":"H300539","decisionDate":"2024-11-21","decisionYear":2024,"opinionType":"alj","claimantName":"Felicia Bell","employerName":"Walmart Associates, Inc","title":"BELL VS. WALMART ASSOCIATES, INC. AWCC# H300539 November 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BELL_FELICIA_H300539_20241121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BELL_FELICIA_H300539_20241121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H300539 \n \nFELICIA BELL, EMPLOYEE      CLAIMANT \nVS. \nWALMART ASSOCIATES, INC., EMPLOYER    RESPONDENT  \nWALMART ASSOCIATES, INC./      \nWALMART CLAIMS SERVICES, CARRIER/TPA   RESPONDENT \n \n \nOPINION FILED NOVEMBER 21, 2024 \nHearing before Administrative Law Judge, James D. Kennedy, on the 8\nTH\n day of October \n2024, in Little Rock, Arkansas. \nClaimant is Pro Se. \nRespondents are represented  by Michael  C.  Stiles,  Attorney  at  Law, Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 8\nth\n day of October 2024, in Little Rock, Arkansas, \nto determine the compensability of an alleged repetitive motion injury of both hands of the \nclaimant that she contended cumulated on or about October 16, 2023, and if the claim is \nfound  to  be  compensable,  the  issue  of  reasonable  and  necessary medical  benefits. A \ncopy of the Pre-hearing Order as well as the response to the Prehearing Questionnaire \nby both the Claimant and the Respondent were made part of the record without objection.\n From  a  review  of  the  record  as  a  whole, to  include  medical  reports  and  other \nmatters properly before the Commission and having had an opportunity to observe the \ntestimony and demeanor of the witnesses, the following findings of fact and conclusions \nof law are made in accordance with Ark. Code Ann. 11-9-704. \n\nFelicia Bell – H300539 \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  That the Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. That the claimant has failed to satisfy the required burden of proof to show the \nexistence of a compensable repetitive motion injury to both of her hands that \ncumulated on or about October 19, 2023.  \n3. That  this matter  involving  the  same  rapid  repetitive  injuries  was  previously \nsettled in a Joint Petition on December 20, 2022. (H207221).   \n4. That all other issues are moot. \n5. If not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The claimant, Felicia Bell, testified she “sustained this carpal tunnel.” “After I had \nsurgery, the doctor told me I had carpal tunnel. Well, I had injuries before that, but the \nnumbness,  the  tingling,  the  burning  sensation,  I  never  knew  what  it  was  until  I  had \nsurgery.” The claimant went on to state she told Walmart, “but, prior to that, I had another \ninjury, and then I called workman’s comp. They said it was two different cases, so here \nwe are today.” “I had carpal tunnel, and I had to have surgery on both of my wrists, and I \nhave - - I’m not able to have the surgery because I’ll be off work, and I can’t pay my bills.”  \nShe stated she had not had surgery yet and that it was painful. She worked 12 – hour \nshifts as a “cutter” and “putter” and cut 5000 to 6000 boxes a day and as a putter she \nmakes over 6000 in production. “A putter is you scan a box. You have a section, and it’s \nsix boxes up here, six boxes down here. And when I scan the boxes, they put one, two in \n\nFelicia Bell – H300539 \neach box, and I’ll just - - you have to move real fast with your hands.” She stated  she \nconstantly used her hands. (Tr. 8, 9) \n Under cross examination, the claimant was questioned about a nerve study which \nprovided “bilateral hand and wrist numbness, tingling and burning began 2021”. She \nadmitted the nerve study was read correctly but stated “I had no idea what I had. I just \nwent  to  the  doctor  and,  you  know,  I  had  the  other  incident. And  then  when  this  came \nabout, I went to the doctor. He said I have carpal tunnel from the surgery, and he said it \nprobably began in 21 but I just didn’t know about it.” The claimant admitted having surgery \non her left wrist on September 19, 2022, with Dr. Thomas Day in regard to a knot that \n“grew up in my wrist.” (Tr. 10, 11)  \n The following questioning then occurred: \n Q: And it was one or two days after that surgery that you then reported to  \n  Walmart, that you filed your prior claim, is that correct? \n A: They would not let me file a prior claim, because they said I had the open  \n  claim with the wrist for the surgery and I tried to tell them the doctor said I  \n  have carpal tunnel as well, but they wouldn’t let me file it.  That’s why I called \n  the workman’s comp. \n Q. Okay. And it was, what, about three, four days after that surgery that you  \n  saw Doctor - - or I’m sorry - - Nurse Teresa Rhew, and that’s R-H-E-W.  Am \n  I pronouncing that - - \n A. I’ve seen her prior, but I was - - She sent me to the specialist, and I’ve been \n  - - She’s my main doctor. \n Q. Okay. \n A. So, I see her frequent. (Tr. 12) \n The claimant admitted she was sent to the clinic for pain and numbness in regard \nto  both  hands,  a  couple  of  days  after  her  September  19,  2022,  surgery.  She  admitted \nhaving the carpal tunnel or wrist ailments in 2021 and in September of 2022, long before \n\nFelicia Bell – H300539 \nOctober 19, 2022, but contended she did not know what it was until she saw Ms. Teresa.  \nThe following questioning then occurred: \n Q. And so, at the time that you were initiating your prior claim against Walmart, \n  you were experiencing these numbness, tingling pains in your wrist,  \n  correct? \n A. Uh-huh.  Didn’t know what it was at that time, yeah, until after I had my  \n  surgery in 22. \n Q: But is it a ‘yes’ or a ‘no,’ at the time you initiated your first claim against  \n  Walmart - - \n A. Uh-huh \n Q.  - - were you experiencing pain and numbness in both wrists and hands? \n A. Not as much as after I had the surgery. After I had the surgery and it  \n  intensified (sic) it, I guess. (Tr. 13, 14) \n Q.  And then it was October 14, 2022, that you requested a hearing, a workers’ \n  comp hearing regarding your pains and ailments for your first injury - - your \n  first claim against Walmart, correct?  \n A.  Oh. You talking about the - - the surgery? \n Q.  When you initiated the claim - - \n A.  Yeah.  My first surgery was in twenty - - hold on. \n Q.  It was in September - - on September 19, 2022. (Tr. 13 – 15) \n The claimant admitted she filed her first claim and then five days later, she filed \nagain on October 19, and contended she sustained bilateral carpal tunnel syndrome to \nboth  of  her  wrists. She also contended  she was  told  it  was two  separate  cases  by  the \nworkers’ comp legal aid. (Tr. 16, 17) The claimant also admitted she already had all the \nproblems with her hands and wrists when she initiated the first claim and contended they \nwould not let her file a piece of paper which stated that she had carpal tunnel. The first \nclaim was Claim number H207221, where the claim was denied but settled with a joint \npetition. The claimant admitted settling the first claim after discovery, but again stated it \nwas not carpal tunnel. (Tr. 18, 19) She also admitted she sent an email on December 9, \n\nFelicia Bell – H300539 \n2022, which provided she was thinking about having surgery for both hands due to carpal \ntunnel. (Tr. 20) At the time of the email, she had not initiated a second claim because “I \nwas thinking that I can tell you about it so we can wrap it all in one, but they said it was \ntwo  separate - - two  separate  claims.”  She  admitted  she  was  telling  the  respondent’s \nattorney she had carpal tunnel. (Tr. 21) The claimant ultimately agreed to settle her initial \nclaim, and a Joint Petition was entered into on December 20, 2022.  She also admitted \nthe  first  paragraph  of  the  settlement  discussed  gradual onset  injures  to  her  upper \nextremities, wrists, and hands, which culminated on or about July 24, 2022, and the Joint \nPetition contained her signature.  She signed the Joint Petition Questionnaire and had in \nfact read  the  joint  petition  or  had  it  read  to  her.  (Tr.  22,  23)  She  was then questioned \nabout how she stated in the Joint Petition hearing that her job with the respondent was \nrapid and repetitive, and she responded that her hands were okay and at the moment of \nthe question, she didn’t feel any pain, tingling, or burning sensations. (Tr. 26) She also \nadmitted that at the time of the Joint Petition, she stated she did not anticipate any medical \ntreatment for her hands, wrists, and upper extremities. “Because I was fine at the time, \nbut it’s getting worser.”  The claimant again reiterated these were two different cases and \nwhen  asked  about  there  being  no  incident  or  accident  on  October  19,  2022,  she \nresponded, “Well it happened at work. That’s how I got carpal tunnel.” When asked “that’s \nwhat was settled in that first claim” she responded “It was settled because I had a strain \nin my wrist that grew a knot.  That was for the first surgery, and that’s when they found \nout I had carpal tunnel.”  I was told I couldn’t file but legal aid said that it was two different \ncases. She admitted she went through a settlement hearing where the pains and ailments \nin both hands and the upper extremity were discussed. (Tr. 27, 28)    \n\nFelicia Bell – H300539 \n The  next  witness  was Nicloe  Woodruff who was  called  by  the  claimant. Ms. \nWoodruff testified that she worked for Walmart Distribution as a Put Order Filler where \nshe filled orders, scanned boxes, and thew merchandise into boxes. Her production was \n5800 per day but she always went over in a 12-hour shift. She stated that the claimant \nwas a cutter/putter. (Tr. 32) \n Claimant  was  allowed  to  proffer  an  exhibit  that  was  found  to  not  be  admissible \ndue to the fact it was not timely provided to the opposing side and outside the seven-day \ntime limit.  (Cl. Proffer 1) \nThe respondents’ submitted exhibits without objection, with the first exhibit being \na  medical  report  from  Teresa  Rhew,  APRN,  dated  September  23,  2022.  The  report \nprovided that the chief complaint was bilateral tingling and numbness with possible carpal \ntunnel (emphasis added) (Resp. 1, P. 1 – 6) An email from the claimant dated December \n9, 2022, provided she went to the specialist that week to have surgery on both wrists for \ncarpal tunnel. (Resp. 1, P. 7)   \nA Joint Petition Order dated December 20, 2022, was entered into the record and \nit provided that the claimant was to receive a lump sum payment of $7000.00. (Resp. Ex. \n1, P. 8, 9) The Joint Petition provided it was a compromise settlement on a disputed claim \nand that the Joint Petition would be final as to the rights of all the parties. It additionally \nprovided that the claimant sustained gradual onset injuries to her upper extremities, her \nwrists, and her hands which culminated on or about July 24, 2022, which arose out of and \nin  the  course  of  her  employment  with  Wal-Mart  Associates,  Inc. The  document  further \nprovided that the respondent employer denied and continued to deny that the Claimant \nsustained  a  compensable  injury  within  the  meaning  of  the  Arkansas  Workers’ \n\nFelicia Bell – H300539 \nCompensation Act. This document was signed and approved by the claimant. (Resp. 1, \nP 10 – 13) The Joint Petition Questionnaire that was made part of the record provided \nthat  the  claimant  had  in  fact  read  the  Joint  Petition  and  her  applicable  rights were \nexplained in regard to the settlement, and she also approved and signed this document. \n(Resp. 1, P. 14 – 18)   \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn determining whether the claimant has sustained her required burden of proof, \nthe  Commission  shall  weigh  the  evidence  impartially,  without  giving  the  benefit  of  the \ndoubt to either party.  Ark. Code Ann 11-9-704.  Wade v. Mr. Cavanaugh’s, 298 Ark. 364, \n768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence on \nall issues before it into findings of fact. Weldon v. Pierce Brothers Construction Co., 54 \nArk. App. 344, 925 S.W.2d 179 (1996). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe  Arkansas  Workers’  Compensation  Act  and  must  sustain  that  burden  by  a \npreponderance of the evidence. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 635 \nS.W. 2d 823 (1982).  Preponderance of the evidence means the evidence having greater \nweight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark App. 263, \n101 S.W.3d 252 (2003).  Questions concerning the credibility of witnesses and the weight \nto  be  given  to  their  testimony  are  within  the  exclusive  province  of  the  Commission.  \nPowers v. City of Fayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007).  Where there \nare contradictions in the evidence, it is within the Commissions’ province to reconcile \nconflicting evidence and to determine the true facts.  Cedar Chem. Co. v. Knight, 99 Ark. \nApp.  162,  258  S.W.3d  394  (2007).   However,  the  Commission  may  not  arbitrarily \n\nFelicia Bell – H300539 \ndisregard the testimony of any witness.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. \n230, 184 S.W.3d 31 (2004).  \n   A.C.A. 11-9-102  (4) provides  in  pertinent  part that  a “Compensable  injury” \nmeans: (ii) An injury causing internal or external physical harm to the body arising out of \nand  in  the  course  of  employment  if  it  is  not  caused  by  a  specific  incident  or  is  not \nidentifiable by a time and place or occurrence.   \nIf  the  injury  is  caused  by  rapid  repetitive  motion,  and  carpal  tunnel  syndrome  is \nspecifically categorized as a compensable injury falling within this definition, the standard \nfor interpreting “rapid repetitive motion” is two pronged: (1) the tasks must be repetitive, \nand (2) the repetitive motion must be rapid.  See Malone v. Texarkana Schools, 333 Ark. \n343, 969 S.W.2d 644 (1998).  Even repetitive tasks must be completed rapidly.  The issue \nof  whether  an  injury meets the  rapid  repetitive  motion  requirements  will  ordinarily  be  a \nquestion of fact.  Westside High School v. Patterson, 79 Ark. App. 281, 86 S.W.3d 412 \n(2002).    The  proof  provided  by  the  claimant  failed  to  satisfy  these requirements. The \nstatements by the claimant along with her witness, provided that the claimant performed \nmultiple daily tasks but did not satisfy the evidentiary requirements in regard to the degree \nof  repetitiveness  and  how  rapidly  these  actions were performed.  Additionally,  a \ncompensable  injury  must  be  established  by  medical  evidence  supported  by  objective \nfindings.  A.C.A.    11-9-102 (4) (D).  “Objective findings” are those which cannot come \nunder the voluntary control of the patient.  (A.C.A. 11-9-102 (16) (A) (i).  Here, there are \nno  objective  findings supporting the  claimant’s contentions, even  if  the  proffered \ntestimony had been admitted as evidence.  \n\nFelicia Bell – H300539 \nAdditionally, it is clear the claimant entered into a compromise settlement involving \na Joint Petition which was approved on December 22, 2022.  The Joint Petition provided \nthat the Claimant took the position she suffered from gradual onset injuries to her upper \nextremities, her wrists, and her hands which culminated on or about July 24, 2022.  In the \ncurrent matter and hearing, the claimant appears to have taken the position that although \nshe suffered from pain and injuries at the time of the Joint Petition settlement (specifically \nsuffering from “bilateral hand and wrist numbness, tingling and burning” which began in \n2021  as  per  testimony  at  the  time  of  this  hearing), the  injuries  were  not called  carpal \ntunnel at the time of the Joint Petition and consequently, she is entitled to pursue another \nclaim on the same injuries using the term carpal tunnel for this injury.  However, the law \nis quite clear that the issue of a rapid repetitive motion or carpal tunnel injury, or for that \nmatter any other injury, cannot be relitigated after a Joint Petition settlement has been \nentered into and approved by the Commission. \nBased  upon  the  above  evidence  and  the  applicable  law,  and  after  weighing  the \nevidence  impartially,  without  giving  the  benefit  of  the  doubt  to  either  party,  there  is  no \nalternative but to find that the claimant has failed to satisfy the required burden of proof \nto prove by a preponderance of the evidence that she suffered a rapid repetitive motion \ninjury (Carpal  tunnel) and  that additionally, the matter  was  previously  settled  in a Joint \nPetition on December 20\nth\n, 2022. (H207221) Consequently, all other issues are moot. If \nnot already paid, the respondents are ordered to pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n      ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":16777,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300539 FELICIA BELL, EMPLOYEE CLAIMANT VS. WALMART ASSOCIATES, INC., EMPLOYER RESPONDENT WALMART ASSOCIATES, INC./ WALMART CLAIMS SERVICES, CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 21, 2024 Hearing before Administrative Law Judge, James D. Kennedy, on...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["repetitive","carpal tunnel","wrist","strain"],"fetchedAt":"2026-05-19T22:46:42.632Z"},{"id":"alj-H400009-2024-11-21","awccNumber":"H400009","decisionDate":"2024-11-21","decisionYear":2024,"opinionType":"alj","claimantName":"Jodie Corpier","employerName":"E A Refroe & Co. Inc","title":"CORPIER VS. E A REFROE & CO. INC. AWCC# H400009 November 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CORPIER_JODIE_H400009_20241121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CORPIER_JODIE_H400009_20241121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H400009 \n \nJODY L. CORPIER, EMPLOYEE         CLAIMANT \n \nE A REFROE & CO. INC.  EMPLOYER     RESPONDENT \n \nCONTINENTAL CASUALTY CO./ \nCNA INSURANCE COMPANY      RESPONDENT \n \nOPINION FILED NOVEMBER 21, 2024 \nHearing before Administrative Law Judge James D. Kennedy in Clinton, Arkansas \non November 14, 2024. \nClaimant is pro se and failed to appear. \nRespondents are represented by their attorney, Ben Davis. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on November 14, 2024, in Clinton, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct. The  claimant  was pro  se  and  failed  to  appear  for  the  hearing.  The  Claimant had \nalleged he had sustained a stroke due to stress created by his workload and the claim \nwas  filed  on  December 27, 2023,  the  date  of  the  filing  of  the AR-C. The  respondents \ndenied and controverted the claim in its entirety, filing a form AR - 2 on January 12, 2024.    \n No action has been taken by the claimant to pursue this matter since the filing of \nForm  AR-C  on December  7,  2023,  and  no  hearing  request  or  further  action  has  been \ntaken by the claimant in regard to this matter in over six (6) months.  A Motion to Dismiss \nwas filed by the respondents in this matter on September 5, 2024.  \n\nJodie Corpier – H400009 \n Appropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was set for November 14, 2024, in Clinton, Arkansas. The claimant did \nnot file a response and failed to appear on the hearing date. At the time of the hearing, \nBen Davis appeared  on  behalf  of  the  Respondents and asked  that  the  matter  be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondent, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2537,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H400009 JODY L. CORPIER, EMPLOYEE CLAIMANT E A REFROE & CO. INC. EMPLOYER RESPONDENT CONTINENTAL CASUALTY CO./ CNA INSURANCE COMPANY RESPONDENT OPINION FILED NOVEMBER 21, 2024 Hearing before Administrative Law Judge James D. Kennedy in Clinton, Arkansas on ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:46:44.693Z"},{"id":"alj-H306985-2024-11-21","awccNumber":"H306985","decisionDate":"2024-11-21","decisionYear":2024,"opinionType":"alj","claimantName":"Sasha Giles","employerName":"Amazon.Com Services, Inc","title":"GILES VS. AMAZON.COM SERVICES, INC. AWCC# H306985 November 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GILES_SASHA_H306985_20241121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GILES_SASHA_H306985_20241121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H306985 \nSASHA E. GILES, EMPLOYEE         CLAIMANT \n \nAMAZON.COM SERVICES, INC., \nEMPLOYER         RESPONDENT \n \nAMERICAN ZURICH INS. CO./ \nSEDGWICK CLAIMS MGMT. SVCS, \nINC., INSURANCE CARRIER/TPA     RESPONDENT \n      \nOPINION FILED NOVMEBER 21, 2024 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas \non November 5, 2024. \nClaimant is pro se and failed to appear. \nRespondents are represented by their attorney, David C. Jones. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on November 5, 2024, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct. The  claimant  was pro  se  and  failed  to  appear  for  the  hearing.  The  Claimant had \nalleged that on or about July 15, 2023, she had sustained a back injury arising out of and \nduring the course and scope of her employment with Amazon.Com, Inc.  An AR-C was \nfiled on her behalf on October 25, 2023, by her attorney at the time. On October 26, 2023, \nthe Compliance Division of the Commission sent the carrier a notice of the Form AR- C \nfiling and requested the carrier’s position as well as requesting the filing of the required \nForms AR-1 and AR- 2. A Form AR-1 and a Form AR-2 was filed on October 27, 2023, \ndenying the claim in its entirety, based on the lack of evidence to support an injury having \noccurred during the course and scope of her employment. \n\nSasha E. Giles – H306985 \nOn November 15, 2023, Defense counsel mailed a letter to the claimant’s attorney, \nMark  Peoples,  which  included  a  medical  authorization  and  discovery.  On  January  13, \n2024, Claimant’s attorney filed a Motion to Withdraw as Counsel, and after proper notice, \nthe Full Commission entered an Order allowing the claimant’s attorney to withdraw based \nupon the lack of an objection. No hearing request or further action has been taken by the \nclaimant in regard to this matter in over six (6) months. A Motion to Dismiss was filed by \nthe respondents in this matter on September 9, 2024.  \nAppropriate notice was provided to the claimant notifying her that a hearing on the \nMotion to Dismiss, was set for November 5, 2024, in Little Rock, Arkansas. The claimant \ndid not file a response and failed to appear on the hearing date. At the time of the hearing, \nDavid  C.  Jones appeared  on  behalf  of  the  Respondents and asked  that  the  matter  be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondent, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n      JAMES D. KENNEDY \n      ADMINISTRATIVE LAW JUDGE","textLength":3257,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306985 SASHA E. GILES, EMPLOYEE CLAIMANT AMAZON.COM SERVICES, INC., EMPLOYER RESPONDENT AMERICAN ZURICH INS. CO./ SEDGWICK CLAIMS MGMT. SVCS, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED NOVMEBER 21, 2024 Hearing before Administrative Law Judge Jam...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:46:46.759Z"},{"id":"alj-H104834-2024-11-21","awccNumber":"H104834","decisionDate":"2024-11-21","decisionYear":2024,"opinionType":"alj","claimantName":"Kelli Hellums","employerName":"Area Agency On Aging Western Arkansas","title":"HELLUMS VS. AREA AGENCY ON AGING WESTERN ARKANSAS AWCC# H104834 November 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HELLUMS_KELLI_H104834_20241121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HELLUMS_KELLI_H104834_20241121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H104834 \nKELLI S. HELLUMS, EMPLOYEE CLAIMANT \n \nAREA AGENCY ON AGING WESTERN ARKANSAS, EMPLOYER RESPONDENT \n \nRISK MANAGEMENT RESOURCES, CARRIER RESPONDENT \n \n \n \n OPINION FILED NOVEMBER 21, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On October  14,  2024,  the  above  captioned  claim  came  on  for a hearing  at Fort  Smith, \nArkansas. A pre-hearing conference was conducted on August 22, 2024, and a pre-hearing order was \nfiled on that same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2.   The employee/employer/carrier relationship existed on August 6, 2020, when  \nclaimant sustained a compensable injury to her lower back. \n 3.  Claimant’s compensation rate is $268.00 for temporary total disability and $201.00 for  \n permanent partial disability. \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \n\nHellums-H104834 \n2 \n \nwere limited to the following: \n1. Whether claimant is entitled to additional medical benefits. \nAll other issues are reserved by the parties. \nThe claimant contends that “She received a compensable injury to her low back on August 6, \n2020, when she was helping a patient get dressed and felt a sharp shooting pain in her low back. The \nclaimant followed up with Dr. Ian Cheyne at Mercy Clinic Occupational Medicine for continued low \nback  pain. The  claimant  was  referred  for  pain  management  and  lumbar  injections. On  August  19, \n2020, the claimant received an MRI of her lumbar spine and referred for additional pain management. \nThe claimant was treated and evaluated at Ortho Arkansas for her continued low back pain.”  \nThe respondents contend that “All appropriate benefits were paid with regard to claimant’s \ninjury sustained on August 6, 2020. She was found to be at maximum medical improvement with a \n0% rating assigned on April 21, 2021. The medical records do not support entitlement to indemnity \nbenefits, and additional medical treatment is not reasonable and necessary.”    \n From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the witness \nand  to  observe her demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n22, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.   Claimant has met her burden of proving that she is entitled to additional medical treatment \nfor her compensable back injury of August 20, 2020. \n \n\nHellums-H104834 \n3 \n \n \n FACTUAL BACKGROUND \n This  case  has  a  lengthy  procedural  history. On  August  8,  2022,  claimant  filed  Form  AR-C, \nalleging a compensable injury on August 6, 2020. Because the AR-C was filed two days after the two-\nyear anniversary of the injury, respondents took the position that the matter was barred by the statute \nof limitations and sought to have the matter dismissed as untimely. I denied that motion, ruling that \nsince August 6, 2022, was a Saturday, the filing on August 8, 2022, was timely. Claimant filed a motion \nto enforce a proposed joint petition agreement between the parties. I denied both motions, and an \norder to that effect was entered on April 6, 2023. Respondents filed a timely appeal of the statute of \nlimitations decision on May 4, 2023. On February 14, 2024, the Full Commission affirmed that ruling. \n  On March 15, 2024, respondents filed a Motion to Dismiss pursuant to A.C.A. § 11-9-702, \nalleging  that  it  had  been  more  than  six  months  since  claimant  filed  her  Form  AR-C  with  the \nCommission, but there had been no request for a hearing during that time. Respondents also requested \ndismissal for failing to prosecute her claim pursuant to Commission Rule 099.13. Claimant opposed \nthe dismissal and a hearing on respondents' motion was conducted on June 5, 2024. The Motion to \nDismiss was denied and an order to that effect was entered on June 20, 2024.  \nHEARING TESTIMONY \n \n Claimant was the only witness that testified. She said that on August 6, 2020, she was working \nfor the Area Agency on Aging as an in-home aide. She had been assigned to a particular patient and \nhad been for about five years. On the day in question, claimant was assisting the patient to put on her \nshoes when “it just felt like something on my left side completely separated and I went straight down \nand was just stuck in a fetal position.”  She was taken to the emergency room in Fort Smith where she \nwas treated and released. About a week later she was again seen in the emergency room after she was \nunable to get out of her car at Dr. Ian Cheyne’s office.  \n\nHellums-H104834 \n4 \n \n \n Dr. Cheyne prescribed a course of physical therapy, which claimant said made her condition \nworse.  Following the failed physical therapy, claimant had lumbar epidural steroid injections (LESI), \nwhich seemed to help. Claimant said she had a total of three LESIs which provided some relief, and \nthen had a facet injection which did not work as well. Claimant said while she was being treated that \nshe had physical restrictions that prevented her from lifting or bending. Claimant also had a rhizotomy \nwhich did not help. \n Claimant  said  that  she  had  a  functional  capacity  evaluation (FCE) in  April  2021. After  the \nFCE,  claimant  understood  that  she  did  not  have  the  option  to  return  to  see  Dr.  Roman. Claimant \ntestified that after she had worked almost a year in the office at Area Agency on Aging, she was told \nthat she could not go back into the field and that she was fired.  \n When she was terminated, claimant lost her health insurance and was not able to treat with \nher physicians because they wanted to be paid cash.  Claimant applied for and received Social Security \nDisability benefits and after she was approved for that, she returned to see Dr. Roman and was given \nanother LESI. Claimant is now enrolled in Medicaid which paid for Dr. Roman’s services. \n On  cross-examination,  claimant  said  she  was  initially  scared  to  do  the  injections  but  was \nreferred to Drs. Roman and Becker for pain management and had several injections. Claimant said no \ndoctor had discussed surgery with her during the course of her treatment. Claimant clarified that she \nwas on Medicaid not Medicare.  \nOn redirect  examination,  claimant  testified  about  the  sequence  of  her  medical  treatment, \nwhich will be covered in the review of the records.  \n    I found claimant to be a credible witness, both in her demeanor and in the consistency of her \ntestimony with the medical records.  \n \n\nHellums-H104834 \n5 \n \n \nREVIEW OF THE EXHIBITS \n          On the day of her injury, claimant first went to Mercy Hospital in Fort Smith for an emergency \nroom visit for low back pain. She was discharged with the following summary statement: \n“Consulted neurosurgery, CT showed no acute fracture or misalignment. \nPatient  discharged  with  Medrol  and  Plex  real.    She  will  follow  up  with \nneurosurgery next week.” \n \nHowever,  instead  of  being  seen  by  a neurosurgeon, respondent  sent claimant to Dr. Ian \nCheyne at Mercy Clinic Occupational Medicine. Dr. Cheyne examined claimant made an appointment \nfor an MRI for the lumbar spine and prescribed a complete steroid pack to be followed by Ibuprofen \nor  Tylenol  afterwards. Dr.  Cheyne’s  initial  assessment  was  that  claimant’s  work  activities  had \naggravated an underlying condition. Claimant’s work status as of August 10, 2020, was restricted duty \nof lifting less than 20 pounds and limited bending, stooping, and twisting. Claimant was to alternate \nsitting, standing, and walking as tolerated. \nClaimant had an MRI on August 19, 2020, as ordered by Dr. Cheyne. The impressions of this \nMRI were: \nFacet   hypertrophy   L5-S1   with   far-right   sided  disc   protrusion   but   no \nsignificant stenosis.  \nPosterior  element  hypertrophy  L4-5  with  spondylosis  and  posterior  lateral \nsmall protrusions with canal and lateral recess stenosis. \nPosterior element hypertrophy L3-L4 with disc bulge verses protrusion and \nmild canal and lateral recess narrowing. \nAnd central disc protrusion at L2-3 with mid left lateral recessed narrowing. \nOther findings are noted. \n \nWhen claimant next saw Dr. Cheyne on August 24, 2020, she felt that she had improved and \nwas  no  longer  having  to  use  a  walker  to  get  around. Dr.  Cheyne  went  over  her  MRI  results  and \ncontinued her work restrictions as before.  \n While  there  is  no  physical  therapy  records  included  in  the  exhibits,  Dr.  Cheyne  referred \n\nHellums-H104834 \n6 \n \n \nclaimant to physical therapy and in his notes of September 14, 2020, noted that his plan of care was \nto  send  her  for  more  physical  therapy  and  at  that  point,  he  was  considering pain management  for \npossible injections if her pain was not resolved.  His diagnosis at that time was that she had “strain of \nmuscle, facia and tendon of lower back.”  Her work restrictions continued as before.  \n  Claimant returned to see Dr. Cheyne on October 5, 2020. While claimant said that she felt her \nback was improving, she gave her pain level at a five, as opposed to previous entries of four on a scale \nof ten. Under his plan of care comments, Dr. Cheyne said there has been no significant improvement \nand that he was going to try another round of oral steroids. He discussed a possible referral to pain \nmanagement or a functional capacity evaluation, and claimant wanted to consider her options. When \nshe returned on October 12, 2020, claimant decided to try the LESI. Dr. Cheyne made a referral to \npain management for that and continued her work status of restricted duty.  \n On October 20, 2020, claimant saw Dr. Eugene Becker at Central Arkansas Surgery Center \nand  underwent a  lumber epidural steroid injection at  L5-S1. Upon  returning  to  see  Dr.  Cheyne  on \nNovember 5, 2020, claimant reported she had significant improvement of pain after the LESI. Dr. \nCheyne recorded “Will place on regular duty but recommend she follow up with pain management \nfor another injection.” \n           Claimant had another LESI at L5-S1 on November 17, 2020. She returned to see Dr. Cheyne \non November 30, 2020, and reported that she felt she was not improving. Claimant also reported that \nshe felt no change after the second LESI. The plan of care after that visit was claimant was placed on \nher original restrictions, with office work recommended; however, the recommended work status in \nthat report was contradictory: “Kelli’s recommended work status is regular duty.”  She was to return \nto Dr. Becker for more pain management. \n On  December  15, 2020, claimant  had  a  transforaminal  lumbar epidural  steroid  injection  at \n\nHellums-H104834 \n7 \n \n \nbilateral L4-5. She returned to see Dr. Cheyne on January 20, 2021, reporting a pain level of four after \nher third LESI. She had not yet been released by pain management and Dr. Cheyne recommended \nleft facet injections at L3-S1. He then included in the plan of care: “consider FCE if no improvement \nwith injections.” \n On February 8, 2021, claimant was seen at OrthoArkansas prior to receiving facet injections \nat L3-S1. Claimant related that to that point, she had undergone three LESIs from Dr. Becker, had \nundergone  physical  therapy  which  exacerbated her  symptoms,  and  had  tried  muscle  relaxers, anti-\ninflammatories, and steroids dosepaks with minimal relief. On February 12, 2021, Dr. Carlos Roman \nadministered lumbar facet injections at L3-4, L4-L5, L5-S1, with medial branch block. She underwent \na second facet injection by Dr. Roman on February 26, 2021. This was followed by a rhizotomy of \nlumber facet joints on claimant’s left side at L3-L4, L4-L5, and L5-S1 on March 19, 2021. \n On   April   21,   2021, claimant  was  seen  by  physician’s  assistant  Payton  Ransom  at \nOrthoArkansas who returned claimant to work at light duty until a functional capacity evaluation was \ndone. There was as entry in P.A. Ransom’s report as follows: \n“The patient states she is unable to return to work due to her pain. My \nrecommendation is for a  functional capacity exam. If the patient has a valid \nfunctional  capacity  exam,  then they may  be  able  to  return  to  work  per  the \ndefined restrictions  of  that  valid  functional  capacity  exam. If  the  functional \ncapacity  exam  is  invalid,  patient  may  return  to  work  full  duty  without \nrestrictions.  \nI will continue patient’s work restrictions of no bending, twisting, or  lifting \nover twenty pounds until the result of functional capacity exams are available. \nThere  is  no  need  for  the  patient  to  follow  up  after  this  functional  capacity \nexam. My instructions following the functional capacity exam are clearly stated \nabove.” \n \n On this visit, P.A. Ransom stated: \n“Patient is at maximum medical improvement. Patient’s work restrictions are \nto return  back  to  work  full  duty  without  restrictions. Patient’s impairment \nrating  will  be 0% as  taken  out  of  page  113  of  the  Guides  to Evaluation  of \nPermanent Impairment,4\nth\n Edition.  This  is  for  a  grade  one  degenerative \n\nHellums-H104834 \n8 \n \n \nspondylolisthesis, non-operated on. Releasing patient from my medical care.  I \nwill  see  the  patient  back  only  as  needed. Continued  to  place  the  patient  on \nwork restrictions no bending, twisting, or lifting over twenty pounds.” \n \nClaimant underwent a functional capacity evaluation on May 10, 2021, during which time she \nput forth a reliable effort with 50 of 50 consistency measures. The examiner concluded that claimant \ncompleted the functional testing with reliable results and demonstrated the ability to perform work in \na light classification of work.  \nADJUDICATION \n \n The only issue to be decided in this matter is whether claimant is entitled to additional medical \ntreatment  for  her  compensable  injury  of August  20,  2020. A claimant  bears  the  burden  of  proving \nentitlement to additional medical treatment for a compensable injury. LVL, Inc. v. Ragsdale, 2011 Ark. \nApp.  144,  381  S.W.3d  869. However,  once  it  has  been  established  that  a  claimant  has  sustained  a \ncompensable injury--which was a stipulation--she is not required to offer objective medical evidence \nto prove entitlement to additional benefits, Ark. Health Ctr. v. Burnett, 2018 Ark. App. 427, at 9, 558. \nS.W.3d 408, 414. \n It is the employer's responsibility to provide for an injured employee such medical treatment \nas may be reasonably necessary in connection with the injury received by the employee, Ark. Code \nAnn. 11-9-508(a). While the doctor that saw claimant at the emergency room believed she needed to \nbe  referred  to  neurosurgery,  I do  not  fault  respondents for  first  sending  her  to  the  occupational \nmedical clinic.  Nor am I critical of the conservative course of care that claimant received in the first \nmonths; the initial course of rest, Ibuprofen, Acetaminophen, and hot showers seems reasonable, as \ndoes the referral to physical therapy and then for the various injections.  \nHowever, after  those conservative  measures failed, the  records  from  Dr.  Cheyne  and  P.A. \nRansom do not indicate that a referral to an orthopedist or a neurosurgeon was ever contemplated. \n\nHellums-H104834 \n9 \n \n \nAs  noted  above,  the  doctor  that  saw  claimant  in  the  emergency room  on the  day  of  the  accident \nthought such was appropriate; however, that was before respondent began management of her care.  \nAssuming for a moment that the release with restrictions after the FCE was appropriate\n1\n, that would \nnot bar claimant from additional medical treatment. An injured party can continue to receive medical \ntreatment  for  a  compensable  injury  after  she  has been  declared  to  have  reach maximum  medical \nimprovement, Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). In this hearing, \nclaimant sought the only type of treatment that has provided her with relief from her back pain. As \nsuch, I  find  that  claimant have  proven  by  a  preponderance  of  the  evidence  that  she is  entitled  to \ncontinued treatment for her compensable back injury. \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \n Respondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $452.95. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE \n \n \n1\n The  question  of  whether  claimant  should  have  been  released by  a  physician’s  assistant at  maximum  medical \nimprovement with permanent physical restrictions but with a 0% impairment rating is not before me at this time, and \nI offer no opinion in that regard.","textLength":17789,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H104834 KELLI S. HELLUMS, EMPLOYEE CLAIMANT AREA AGENCY ON AGING WESTERN ARKANSAS, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, CARRIER RESPONDENT OPINION FILED NOVEMBER 21, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebast...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","lumbar","fracture","strain"],"fetchedAt":"2026-05-19T22:46:48.922Z"},{"id":"alj-G908247-2024-11-21","awccNumber":"G908247","decisionDate":"2024-11-21","decisionYear":2024,"opinionType":"alj","claimantName":"Dakota Humphrey-Friend","employerName":"Best Buy Stores Lp","title":"HUMPHREY-FRIEND VS. BEST BUY STORES LP AWCC# G908247 November 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HUMPHREY-FRIEND_DAKOTA_G908247_20241121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HUMPHREY-FRIEND_DAKOTA_G908247_20241121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G908247 \n \nDAKOTA J. HUMPHREY-FRIEND, EMPLOYEE   CLAIMANT \n \nBEST BUY STORES LP, EMPLOYER RESPONDENT \n \nSEDGWICH CLAIMS MANAGEMET SERVICES, INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED NOVEMBER 21, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas. \n \nRespondents are represented by JARROD PARRISH, Attorney, Little Rock Arkansas \n \nOPINION/ORDER \n \n On  August 24, 2023, claimant filed Form AR-C, alleging a compensable injury on December \n1, 2019.   Claimant was represented at the time by Matthew J. Ketcham, who remains his attorney of \nrecord.   \nOn April 22, 2024, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor  a  hearing on  this  claim.  A  hearing  on respondent’s Motion to Dismiss was scheduled for \nNovember 7, 2024.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was delivered to claimant on September  20, \n2024.    Claimant did not respond to respondent’s motion and did not appear in person at the hearing \non November 7, 2024, but Mr. Ketcham did appear on his behalf. \n\nHumphrey-Friend-G908247 \n \n2 \n \nFollowing  the  hearing,  respondents  submitted  a  post-trial  brief  in  support  of  its  Motion  to \nDismiss.  Claimant responded that after reviewing that brief, he did not object to a dismissal without \nprejudice.    \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing  has  been  made  in  this  file.    After  my  review  of  the respondents’ motion and  brief,  the \nclaimant’s agreement to said motion, and all  other matters  properly  before  the  Commission,  I  find \nthat respondent’s Motion to Dismiss this claim should be and hereby is granted.  This dismissal is \npursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2363,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G908247 DAKOTA J. HUMPHREY-FRIEND, EMPLOYEE CLAIMANT BEST BUY STORES LP, EMPLOYER RESPONDENT SEDGWICH CLAIMS MANAGEMET SERVICES, INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED NOVEMBER 21, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, ...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:46:51.049Z"},{"id":"alj-H202890-2024-11-20","awccNumber":"H202890","decisionDate":"2024-11-20","decisionYear":2024,"opinionType":"alj","claimantName":"Marion Pederson","employerName":"Optum Care, Inc","title":"PEDERSON VS. OPTUM CARE, INC. AWCC# H202890 November 20, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PEDERSON_MARION_H202890_20241120.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PEDERSON_MARION_H202890_20241120.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H202890 \n \nMARION PEDERSON, Employee                                                                  CLAIMANT \n \nOPTUM CARE, INC., Employer                                                               RESPONDENT                                                                               \n \nFARMINGTON CASUALTY/SEDGWICK CLAIMS, Carrier                      RESPONDENT                                                                                               \n \n \n \n OPINION FILED NOVEMBER 20, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney, Little Rock, Arkansas. \n \nRespondents represented by RANDY P. MURPHY, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On October  30,  2024,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on June 26, 2024 and \na  pre-hearing  order  was  filed  on  that  same date.   A  copy  of  the  pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The claimant sustained a compensable injury to her right hip, low back, and \ncervical/neck. \nAt  the  time  of  the  hearing  the  parties  agreed  to  stipulate  that claimant  earned \nsufficient  wages  to  entitle  her  to  compensation  at  the  weekly  rates  of  $356.00  for total \n\nPederson – H202890 \n 2 \ndisability benefits and $267.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Claimant’s entitlement to permanent partial disability benefits. \n2.  Attorney’s fee. \n The claimant contends that as a result of her compensable injury of April 4, 2022, \nshe is entitled to permanent partial disability benefits and an attorney’s fee.  Claimant \nreserves all other issues. \n The   respondents   contend the   claimant   has   reached   maximum   medical \nimprovement and that any additional treatment is not related to the compensable injury. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non June 26, 2024 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    The parties’ stipulation that claimant earned sufficient wages to entitle her to \ncompensation  at  the  rates  of  $356.00  for  total  disability  benefits  and  $267.00  for \npermanent partial disability benefits is also hereby accepted as fact. \n 3.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she is entitled to payment of permanent partial disability benefits in an amount equal \n\nPederson – H202890 \n \n3 \n \nto 7% to the body as a whole as a result of her compensable cervical injury. \n 4.   Respondent has controverted claimant’s entitlement to permanent partial \ndisability benefits in the amount of 7% to the body as a whole. \n \n FACTUAL BACKGROUND \n The claimant is a 73-year-old woman with a radiology certification who has worked \nfor  various  health  providers  over  the  years.    In  2006  she  was  hired  as  the  Director  of \nImaging for Washington Regional Medical Center and held that position until she retired \nin 2014.  After not working for six years, claimant began working parttime for respondent \nin  2020 as  a  radiologic  technologist  performing  x-rays;  lab  work;  triage;  patient \nassessment; et cetera.   \n The parties have stipulated that claimant suffered a compensable injury to her right \nhip,  low  back,  and  cervical  spine  on  April  4,  2022.    On  that  date  the  claimant  was \nperforming a shoulder x-ray on a patient when the patient fainted.  Claimant grabbed the \npatient’s head so it would not hit the floor but both she and the patient hit the floor.  \nClaimant testified that she landed on the right side of her body. \n Claimant’s  supervisor  was  present and  claimant  completed  workers’ \ncompensation  paperwork  before  continuing  to  perform  her  job  for  the  rest  of  the \nafternoon.  Since the time of her injury, the claimant has received various treatment for \nher  compensable  injury.    The  cervical  treatment has primarily  consisted of medication, \ninjections, physical therapy, and work restrictions. \n Although respondent has paid for claimant’s medical treatment, respondent has \nnot accepted liability for a 7% impairment rating to the body as a whole assigned by Dr. \n\nPederson – H202890 \n \n4 \n \nKnox for the cervical spine injury.  As a result, claimant has filed this claim contending \nthat she is entitled to payment of permanent partial disability benefits for the 7% rating. \n \nADJUDICATION \n Claimant contends that she is entitled to payment of permanent partial disability \nbenefits based upon a 7% impairment rating assigned for her compensable cervical spine \ninjury which was assigned by Dr. Knox.  Respondent alleges that claimant’s cervical spine \ncondition was preexisting and that claimant cannot prove that the compensable injury was \nthe major cause of her permanent impairment. \n The relevant statutory law is codified at A.C.A. §11-9-102(4)(F)(ii) which states: \n   (a)  Permanent benefits shall be awarded only upon a \ndetermination that the compensable injury was the major \ncause of the disability or impairment.  \n    (b)  If any compensable injury combines with a pre- \nexisting disease or condition or the natural process of \naging to cause or prolong disability or a need for treat- \nment, permanent benefits shall be payable for the resultant  \ncondition only if the compensable injury is the major cause \nof the permanent disability or need for treatment. \n \n \n A.C.A. §11-9-102(14)(A) defines “major cause” as more than fifty percent (50%) of \nthe cause.   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has met her burden of proof. \n Initially,  it  should  be  noted  that  claimant  has  a  history  of  cervical  spine  issues.  \nMedical records from Dr. Beemer, a chiropractic physician, were introduced into evidence \nand date back to July 26, 2011.  Medical records from Dr. Beemer indicate that claimant \n\nPederson – H202890 \n \n5 \n \nwas  seen  a  total  of  189  times.   Since  claimant’s  claim  is  for  an  impairment  rating \nassociated with her cervical spine injury, only those medical reports relating to her cervical \nspine will be discussed.  A review of the various medical records from Dr. Beemer indicate \nthat many of claimant’s complaints involve her thoracic and lumbar spine.  However, there \nare certainly notations of complaints involving claimant’s cervical spine as well.  Those \nnotes  describe  claimant’s  neck  complaints  as  “moderately  severe”,  “intermittent”, \n“nominal” or “resolved”.  The medical records indicate that claimant did not always receive \nmanipulation  to  her  cervical  spine.   On  multiple  occasions claimant  complained  of \nrestricted neck motion involving both sides of her neck.  Furthermore, although claimant \ntestified  that  she  did  not  remember  having  muscle  spasms  in  her  cervical  spine,  the \nmedical  records  from Dr.  Beemer  contain  multiple  references  to muscle  spasms  in  the \nclaimant’s cervical spine. \n In addition to Dr. Beemer, claimant also received medical treatment prior to April \n4,  2022, from  Dr.  Weilert,  a  pain management  physician.    In  a  report  dated  March 15, \n2016, Dr. Weilert indicated that claimant’s active problems included:  “bulge of cervical \ndisc without myelopathy” and cervical spondylosis.  On May 14, 2020, Dr. Weilert noted \nthat  claimant  had  some  neck  issues  six  years  ago  but  that her  neck  pain  had become \nsevere two weeks earlier and he provided claimant trigger point injections on that date.  \nSubsequent medical records from Dr. Weilert indicate that he continued to treat claimant, \nbut those treatments primarily included claimant’s lumbar spine and left hip pain. \n Medical records from Dr. Beemer indicate that claimant continued to seek medical \ntreatment for various complaints including neck pain as late as March 2022, just before \nher compensable injury on April 4, 2022. \n\nPederson – H202890 \n \n6 \n \n Significantly,  in  her  report of  March  7, 2022,  Dr.  Beemer  indicated  that  claimant \nrated her neck pain as a 3; however, on April 5, 2022, the day after her injury, claimant \nrated her neck pain as an 8.  I also note that Dr. Beemer indicated that at the time of her \nlast visit claimant’s muscle spasms in her cervical spine were noted as mild whereas on \nApril 5, 2022, the muscle spasms were noted as severe. \n Claimant’s initial medical treatment from Dr. Weilert after the injury  occurred  on \nApril 18, 2022.  In his report of that date he noted: \n  Neck has mostly been manageable until a fall at \n  work.  Now having severe left neck. \n \n \n In  addition  to  Dr.  Weilert,  claimant  also  sought  medical  treatment  for  her \ncompensable  injury  from  Dr.  Hoover who ordered an MRI scan of claimant’s cervical \nspine.  The  MRI  scan of  May  13,  2022 was  read  as  showing  multilevel  cervical \nspondylosis, worse at C3-4 through C-6 levels and a central disc protrusion at the C3-4 \nlevel.  Following the MRI scan Dr. Hoover referred claimant to neurosurgery.  It does not \nappear that claimant was seen by a neurosurgeon at that point in time, but instead she \ncontinued to receive treatment from Dr. Weilert and Dr. Hoover in the form of medication, \nphysical therapy, and injections.  Claimant underwent another MRI scan of her cervical \nspine  on  November  28,  2022.   That  scan  was  read  as  showing  a  multilevel  cervical \nspondylosis  with  moderate  canal  stenosis  at  C4-5  and  C5-6.    It  also  revealed  severe \nbilateral neuroforaminal narrowing at C3-4, severe right neuroforaminal narrowing at C4-\n5 and severe bilateral neuroforaminal narrowing at C5-6.   \n After that MRI scan, Dr. Hoover in his report of January 18, 2023 again indicated \nthat claimant should see a neurosurgeon for her ongoing neck problems. \n\nPederson – H202890 \n \n7 \n \n At some point the respondent apparently had claimant’s medical reports reviewed \nby Dr. Owen Kelly, an orthopedic surgeon.   In a report dated March 23, 2023, Dr. Kelly \nindicated that claimant had degenerative disc disease of the cervical spine and that she \nmay have sustained a cervical sprain/strain at the time of the accident but no identifiable \ninjury was noted.  He further found that claimant’s degenerative findings were not related \nto  the  April  4,  2022  accident  and  opined  that  claimant  had  reached  maximum  medical \nimprovement with no impairment rating relating to the injury. \n Claimant  subsequently  obtained  a  change  of  physician  to  Dr.  Luke  Knox, \northopedic surgeon.  In a report dated August 24, 2023, Dr. Knox assessed claimant’s \ncondition  as  cervical  disc  disorder  with  radiculopathy;  cervical  spondylosis;  cervical \nstenosis  of the  spinal  canal;  and  chronic  right  shoulder  pain.    He  recommended  that \nclaimant receive physical therapy and continue following up with Dr. Weilert.   \n Apparently additional medical treatment was not approved by the respondent and \nclaimant returned to Dr. Knox on October 17, 2023.  In his report of that date, Dr. Knox \nstated: \n  October 17, 2023.  Patient 1 and half years status post \n  work comp injury continuing difficulty with cervical \n  radiculopathy.  Reviewed MRI scan demonstrating \n  significant disc herniation on the right at C4-5 C5-6. \n  I informed her that surgical options do exist.  Would  \n  like to see her go through physical therapy.  Her work \n  comp carrier refused.  She wants to settle her course \n  a filled out her paperwork recommended that she  \n  close her case she would qualify for a 7% permanent \n  partial disability.  Plan to follow up  p.r.n. we did Re  \n  up her physical therapy through Total spine I would \n  like to see her go through cervical traction. \n  (Emphasis added.) \n \n \n\nPederson – H202890 \n \n8 \n \n Dr.  Knox  also  completed  responses  to  questions  from  claimant’s  attorney \nindicating  that  claimant  had  reached  maximum  medical  improvement  and  had  a  7% \nimpairment rating to the body as a whole. \n I  find  based  upon  the  opinion  of  Dr.  Knox  that  claimant  has  met  her  burden  of \nproving by a preponderance of the evidence that claimant’s compensable cervical spine \ninjury is the major cause of the 7% impairment rating assigned by Dr. Knox.  Dr. Knox is \na  neurosurgeon  and  has  reviewed  claimant’s  MRI  scans.    It  was  his  opinion  that \nclaimant’s MRI scan shows a significant disc herniation at the C4-5 and C5-6 levels.  It \nwas  also  his  opinion  that  claimant  did  have  surgical  options  available;  however,  she \nwished to settle her case.  There is no indication that claimant had been diagnosed as \nsuffering  from  a  disc  herniation  in  her  cervical  spine  prior  to  her  compensable  injury.  \nWhile it might be argued that other treating physicians and radiologists did not interpret \nclaimant’s MRI scan as showing a significant disc herniation, I find that Dr. Knox’s opinion \nas a neurosurgeon is credible and entitled to greater weight than the opinions of the other \ntreating physicians.   \n Accordingly, I find that claimant has met her burden of proving by a preponderance \nof the evidence that her compensable cervical spine injury is the major cause of the 7% \nimpairment rating assigned by Dr. Knox.  Therefore, respondent is liable for payment of \npermanent partial disability benefits in an amount equal to 7% to the body as a whole. \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe  is  entitled  to  permanent  partial  disability  benefits  in  an  amount equal  to  7%  to  the \n\nPederson – H202890 \n \n9 \n \nbody as a whole based upon the rating assigned by Dr. Knox for her cervical spine injury.  \nRespondent has controverted claimant’s entitlement to payment of permanent partial \ndisability benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable  to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby the claimant.    \n All  sums herein  accrued are payable  in a  lump  sum and  without  discount.   This \naward shall bear interest at the maximum legal rate until paid. \n Respondent  is  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $1,041.45. \n IT IS SO ORDERED. \n \n      _______________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":15619,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202890 MARION PEDERSON, Employee CLAIMANT OPTUM CARE, INC., Employer RESPONDENT FARMINGTON CASUALTY/SEDGWICK CLAIMS, Carrier RESPONDENT OPINION FILED NOVEMBER 20, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington Cou...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["hip","back","cervical","neck","shoulder","thoracic","lumbar","sprain"],"fetchedAt":"2026-05-19T22:46:38.417Z"},{"id":"alj-H401378-2024-11-20","awccNumber":"H401378","decisionDate":"2024-11-20","decisionYear":2024,"opinionType":"alj","claimantName":"Robin Rigsby","employerName":"Benton Utilities","title":"RIGSBY VS. BENTON UTILITIES AWCC# H401378 November 20, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RIGSBY_ROBIN_H401378_20241120.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RIGSBY_ROBIN_H401378_20241120.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H401378 \n \nROBIN RIGSBY, EMPLOYEE        CLAIMANT \n \nBENTON UTILITIES, EMPLOYER            RESPONDENT \n \nAR MUNICIPAL LEAGUE, CARRIER/TPA             RESPONDENT \n  \n \n \nOPINION FILED 20 NOVEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 20 November 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nMs. Mary K. Edwards appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 20 November 2024. This case relates to an alleged workplace injury \nsustained on or about 18 January 2024. A First Report of Injury was filed by the \nrespondents on 28 February 2024, and A Form AR-2 was filed the same day, noting that the \nclaim was denied as occurring outside of the course and scope of employment services. A \nForm AR-C was prepared by the claimant on 1 February 2024 and filed on 23 February \n2024. See Respondents’ Exhibit No 1. \n The respondents filed a Motion to Dismiss for Failure to Prosecute on 1 October \n2024, citing the applicable statute and rule. Notice of that motion was provided to the \nclaimant, who contacted the Commission’s Legal Advisor’s Division to discuss not opposing \nthe dismissal of her claim. A letter dated 25 October 2024 indicating that the claimant \n\nR. RIGSBY- H401378 \n2 \n \n“would appreciate it if this could be dismissed as soon as possible.” See Commission’s \nExhibit No 1. \nThe respondents appeared on 20 November 2024, presented their motion, and \noffered supporting evidence into the record. As argued by the respondents at the hearing, \nthe file reflects no request for a hearing on a claim in the relevant time preceding the filing \nof their motion. And the claimant did not appear at the hearing to resist the dismissal of \nthis claim. Indeed, her letter supporting a dismissal was introduced into the record. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2684,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H401378 ROBIN RIGSBY, EMPLOYEE CLAIMANT BENTON UTILITIES, EMPLOYER RESPONDENT AR MUNICIPAL LEAGUE, CARRIER/TPA RESPONDENT OPINION FILED 20 NOVEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge JayO. Howe on ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:46:40.557Z"},{"id":"alj-H401770-2024-11-19","awccNumber":"H401770","decisionDate":"2024-11-19","decisionYear":2024,"opinionType":"alj","claimantName":"Marcelene Lumpkins","employerName":"Birch Tree Communities, Inc","title":"LUMPKINS VS. BIRCH TREE COMMUNITIES, INC. AWCC# H401770 November 19, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LUMPKINS_MARCELENE_H401770_20241119.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LUMPKINS_MARCELENE_H401770_20241119.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H401770 \n \nMARCELENE LUMPKINS, EMPLOYEE      CLAIMANT \n \nBIRCH TREE COMMUNITIES, INC., EMPLOYER         RESPONDENT \n     \nATA WORKERS’ COMP SI TRUST, CARRIER/ \nRISK MANAGEMENT SERVICES, TPA          RESPONDENT \n \n \n \nOPINION FILED 19 NOVEMBER 2024 \n \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 21 August 2024 in Little Rock, Arkansas. \n \nMr. Mark Alan Peoples appeared for the claimant. \n \nMs. Melissa Wood, of Worley, Wood & Parish, PA, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 21 August 2024 in Little Rock, Arkansas, \nafter the parties participated in a prehearing telephone conference on 30 July 2024. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on the day of the conference.  \nThat Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/TPA relationship existed at all relevant times, including \non 19 December 2023. \n \n3.  The claimant’s average weekly wage at the time of the injury was $958.10, which \nwould entitle her to TTD/PPD rates of $639/$479 per week. \n \n4.  The respondents have controverted this claim in its entirety. \n \n \n\nLUMPKINS- H401770  \n2 \n \nThe Order stated the following ISSUES TO BE LITIGATED: \n1. Whether the claimant sustained a compensable injury to both of her elbows by \nspecific incident on 19 December 2023. \n \n2. Whether the claimant is entitled to medical and indemnity benefits associated \nwith a compensable injury, including TTD benefits between the date of the injury \nand 13 June 2024.\n1\n \n \n3.  Whether the claimant is entitled to an attorney’s fee. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire \nresponses, were incorporated into the Prehearing Order by reference. The claimant \ncontends, as amended without objection at the beginning of the hearing: \n1. That she sustained compensable work injuries to both elbows by specific incident \non 19 December 2023. \n \n2. That she is entitled to TTD from the date of injury to 13 June 2024. \n3. That she is entitled to reasonable and necessary medical benefits related to her \ncompensable work injuries. \n \n4. That she is entitled to the maximum statutory fees associated with her claim \nbeing controverted by the respondents. \n \n The respondents contend: \n1. That the claimant did not sustain a compensable injury on 19 December 2023.  \n2. That she was not in the course and scope of her employment at the time of her \nfall and resulting injuries. \n \n The following WITNESSES testified at the hearing: Ms. Lori Smith, an employee of \nthe respondent-employer, was called by the claimant, and the claimant testified on her own \nbehalf; the respondents called Mr. Blake Smith (no apparent relation to Ms. Lori Smith) \nand Mr. Todd Henderson, both employees of the respondent-employer. \n \n1\n The Prehearing Order noted the claimant sought TTD benefits from the date of the injury \nto a date yet to be determined. At the outset of the hearing, she amended her contentions to \nallege that she was entitled to TTD benefits from the date of the injury through 13 June \n2024. Whether she was entitled to TTD benefits after 13 June 2024 was reserved. \n\nLUMPKINS- H401770  \n3 \n \nThe EVIDENCE considered  in this claim consisted of the hearing testimony along with \nthe following EXHIBITS: Commission’s Exhibit No 1 (the Prehearing Order), Claimant’s \nExhibit No 1 (an index page and 23 subsequent pages of medical records), and Claimant’s \nExhibit No 2 (an index page and three subsequent pages of non-medical \nrecords).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole and having heard testimony from the \nwitnesses, observing their demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n 2. The previously-noted stipulations are accepted as fact. \n \n3. The claimant proved by a preponderance of the evidence that she suffered \ncompensable injuries to both elbows by specific incident. \n \n4.   The claimant proved by a preponderance of the evidence that she is entitled \nto reasonable and necessary medical benefits associated with the treatment \nof her compensable injuries. \n \n5. The claimant proved by a preponderance of the evidence that she is entitled \nto TTD benefits between the date of injury and 13 June 2024, subject to any \napplicable offset associated with her receipt of short-term and/or long-term \ndisability payments.\n2\n \n \n6. The claimant proved by a preponderance of the evidence that she is entitled \nto an attorney’s fee. \n \nIII.  HEARING TESTIMONY  \nWitness Ms. Lori Smith \n \n2\n At the beginning of the hearing, the parties discussed that in the event the claimant was \nfound to be entitled to TTD benefits, they would handle applying appropriate offset \namounts from other disability benefits already provided to the claimant. See TR at 10. \nTestimony was not offered as to those potential offset amounts, and the issue was reserved \nshould the matter not be amicably resolved by the parties. \n\nLUMPKINS- H401770  \n4 \n \n Ms. Smith testified that she worked for the respondent-employer for twenty-eight \nyears and that she works with the claimant. Regarding the day of the claimant’s fall, she \nstated, “We were going out to her car. I was going to ride with her to the team meeting and \nwe went out the back door and we were stepping off some steps and I stepped off the step \nand I heard her scream and I looked over and she was in the air falling, and I heard her hit \nthe pavement really hard and she started crying, and I could tell she was injured really \nbad.” [TR at 14-15.] \n She explained that attending the quarterly off-site lunch meeting was “part of the \njob... you’re pretty much expected to go to it.” [TR at 16.] She did not clock out during for \nthe time in or around those lunch meetings and was not aware of anyone else not being on \nthe clock at those times. \nMs. Smith was asked on cross examination whether she considered the meetings to be \nmandatory. She responded, “I mean, yeah... I felt like I was expected to be at those \nmeetings.” [TR at 18.] She went on to answer that the employees got a free meal and talked \nabout work and enjoyed each other’s company. “[I]t’s kind of a benefit of our team, you \nknow.” [TR at 19.] She testified further that the finance team also has regular Zoom \nmeetings at 10:00 AM on Tuesdays. \nClaimant Marcelene Lumpkins \n The claimant testified that she has worked for the respondent-employer for ten \nyears. She did not recall exactly what caused her fall while leaving on the day of her \ninjuries, but recalled “hitting the pavement” and breaking both of her elbows, with the “left \nbeing the worst [sic].” [TR at 22.] She testified that she has not returned to work since the \nday of her fall.  \n\nLUMPKINS- H401770  \n5 \n \n As for whether attending the lunch meeting was mandatory, she said that it was not \nindicated explicitly that employees must attend, but she felt she was ordinarily expected to \nbe present. \nQ:  If you had something pressing that you had to do, like for instance, a family issue \nthat you had – that took precedence over this, -- \n A:  Uh-huh. \n Q:  -- would you clock out? \n A:  Yes. \n Q:  Okay. To go to the quarterly luncheon meeting, would you clock out? \n A:  No. \n . . .  \n Q:  You’ve been to several of these meetings? \n A:  Yes, I have. \n Q:  Okay. Off-site? \n A:  Yes. \n Q:  Have you ever clocked out?  \n  A:  No. \n Q:  To go to one of these meetings off-site? \n A:  No, not ever. \n Q:  So you were on the clock? \n A:  That’s correct. \n \n[TR at 24-25.] The claimant confirmed that she was not salaried, and that she accounted for \nher time on and off “the clock.” \n The claimant testified that she had not had problems with her elbows prior to the \nfall, but that she had undergone multiple surgeries on her left elbow since the accident. She \nstated that her injuries prevented her from completing basic daily tasks and that she would \nnot have been able to perform her job functions if she had returned to work. The claimant \nfurther testified that company policy prevented her from returning to work with any \nrestrictions in place. \n On cross examination the claimant testified that she was one of seven employees \nwho reported to the Chief Financial Officer (CFO). Performing administrative and clerical \nfunctions for the CFO and training new employees were within the scope of her job duties. \nAs for the lunch meetings, she said that new facility residents, their care needs, and rent \n\nLUMPKINS- H401770  \n6 \n \namounts could be among the work-related things discussed over lunch. Answering a \nquestion from the bench, the claimant clarified that Birch Tree is a residential care facility \nfor clients with mental health-related needs. \n     Witness Mr. Blake Smith \nAfter the close of the claimant’s case, the respondents called Chief Financial Officer \nBlake Smith to the witness stand. Mr. Smith started his position with the respondent-\nemployer in March of 2022. He provided the following testimony about the off-site lunch \nmeetings: \n Q:  ... you guys were going to Colton’s, is that right? \n A:  Yes. \n Q:  Was it for a mandatory meeting? \n A:  No. \n Q:  Were they forced to go there? \n A:  No. \n Q:  Was there an agenda? \n A:  No. \n Q:  Did the employees take their own vehicles? \n A:  Yes. \n Q:  Was anyone taking minutes? \n A:  No. \n Q:  Is it a social event? \n A:  Yes.  \n \n[TR at 38-39.] His direct examination concluded with the question of whether the claimant \nwas performing job duties when she fell. He responded that she was not. \n Mr. Smith testified on cross examination that he was aware that having meetings \noff-site required hourly employees to be outside of their assigned work areas. \n Q:  And were they required to clock out? \n A:  No. \n Q:  Okay. So they’re still on the clock, when they’re going to the luncheon? \n A:  Yes. \nQ:  You are aware, aren’t you, that it’s a Birch Tree policy that hourly employees \nleaving their assigned work locations for any reason must clock out of time keeping; \nyou’re aware of that, aren’t you? \n A:  Well, this was a team building exercise. \n Q:  Okay. \n A:  Yes. \n\nLUMPKINS- H401770  \n7 \n \n Q:  Okay. What’s a team building exercise? \nA:  So we have—like I said before, we’ve got some folks that work remotely, and \nthen, we have folks that work at the office and when I started at Birch Tree, I \ndiscovered that not everybody was always, you know, working together; and so this \nwas an effort to bring people together, so that we did get to know each other. So that \nwhen we are in the office, we could, you know, work better together. \n \n[TR at 41-42.] Mr. Smith then confirmed again that he was aware that employees were \nrequired to clock out when leaving their work areas for personal reasons and that they did \nnot clock out for the lunch meetings. \n     Witness Todd Henderson \n Mr. Henderson testified that he works as a senior accountant at the respondent-\nemployer and that he was working on the day of the claimant’s accident. He stated that he \nhad missed all or part of some lunch meetings before and that he did not consider them to \nbe mandatory. \n Q:  If you miss, are you reprimanded in any way? \n A:  I have never been. \n Q:  Are you forced to attend? \n A:  I don’t think so. Like I said, I got up and left before with permission. \n Q:  Is there any type of agenda that’s followed at these luncheons? \n A:  I would say it’s more social interaction, kind of. \n \n[TR at 45.] \n Mr. Henderson stated on cross examination that he felt like attending the meetings \nwas encouraged and that he did not clock out to attend them. \n     Medical and Documentary Evidence \n The records from the claimant’s emergency department visit show that she suffered \na left arm “comminuted fracture of the olecranon” with “dislocation of the capitellar joint \nwith the radius displaced anteriorly.” [Cl. Exhibit No 1 at 5.] She underwent surgery on 21 \nDecember 2023. A preoperative X-ray of her right arm revealed a “small incomplete radial \nneck fracture” of the right arm. Id. at 9. A surgical revision was required on 9 January 2024 \ndue to hardware fixation failure of the left arm. Id. at 15. \n\nLUMPKINS- H401770  \n8 \n \n Additional clinic notes indicate that she remained under a physician’s care with \norders for physical therapy and light duty restrictions through at least May of 2024. Id. at \n20, 22. \n The claimant also provided records from email threads related to the scheduling of \nthe finance team luncheon. [Cl. Exhibit No 2.] The emails begin with Blake Smith sending a \nmessage on December 5\nth\n that he would “like to schedule a team luncheon.” In a later reply \nto a calendar appointment titled “Finance Team Luncheon” for Monday, December 18\nth\n, \nSmith asks about moving the meeting from that Monday, December 18\nth\n, to Wednesday. \nTodd Henderson suggested moving it to Tuesday, December 19\nth\n, “in place of our team \nmeeting at 10.” Smith responded on the morning of the 19\nth\n, saying that they would meet at \nColton’s for lunch that day. “BTW, we’ll still have our weekly meeting this morning. I’ll \ncancel the meeting for next week,” he concluded. \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the prehearing conference, are outlined above \nand accepted. It is settled that the Commission, with the benefit of being in the presence of \nthe witness and observing his or her demeanor, determines a witness’ credibility and the \nappropriate weight to accord his or her statements. See Wal-Mart Stores, Inc. v. \nVanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999).   \nA. The Claimant Sustained a Compensable Injury. \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving by a \npreponderance of the evidence that she sustained a compensable injury as the result of a \nworkplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). A compensable injury must be \nestablished by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-\n102(4)(D). Objective medical findings are those findings that cannot come under the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Causation does not \n\nLUMPKINS- H401770  \n9 \n \nneed to be established by objective findings when the objective medical evidence establishes \nthat an injury exists and other nonmedical evidence shows that it is more likely than not \nthat the injury was caused by an incident in the workplace. Bean v. Reynolds Consumer \nProds., 2022 Ark. App 276, 646 S.W.3d 655, 2022 Ark. App. LEXIS 276, citing Wal-Mart \nStores, Inc. v. VanWagner, supra. \nThe claimant alleges that his injury occurred by specific incident. The claimant must \nestablish four (4) factors by a preponderance of the evidence to prove a specific incident \ninjury: (1) that the injury arose during the course of employment; (2) that the injury caused \nan actual harm that required medical attention; (3) that objective findings support the \nmedical evidence; and (4) that the injury was caused by a particular incident, identifiable in \ntime and place. See Cossey v. G. A. Thomas Racing Stable, 2009 Ark. App. 666,5, 344 \nS.W.3d 684, 689. \n There is no question that the claimant fell on 19 December 2023 and that she \nsuffered significant injuries to both elbows as a result of that fall. Those injuries required \nmedical attention, including surgical treatment and physical therapy. Factors (2), (3), and \n(4), noted above, are not at issue in this claim. It is on Factor (1)—whether the claimant \nwas in the course of her employment when she fell walking to her car to attend an off-site \nlunch meeting—that this claim turns. Based on the record before me, I find that the \nclaimant met her burden on this factor and that her work injuries are, therefore, \ncompensable. \n In Hudak-Lee v. Baxter County Reg. Hosp., 2011 Ark. 31, 378 S.W.3d 77, the Arkansas \nSupreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and in the \ncourse of employment. Ark. Code Ann. § 11-9-102(4)(A)(i) (Supp. 2009). A \ncompensable injury does not include an injury that is inflicted upon the employee \nat a time when employment services are not being performed. Ark. Code Ann. § \n\nLUMPKINS- H401770  \n10 \n \n11-9-102(4)(B)(iii)  (Supp. 2009). The phrase \"in the course of employment\" and \nthe term \"employment services\" are not defined in the Workers' Compensation \nAct. Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008). Thus, \nit falls to the court to define these terms in a manner that neither broadens nor \nnarrows the scope of the Act. Id. \n \nAn employee is performing employment services when he or she is doing \nsomething that is generally required by his or her employer. Id.; Pifer v. Single \nSource Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). We use the same test to \ndetermine whether an employee is performing employment services as we do \nwhen determining whether an employee is acting within the course and scope of \nemployment. Jivan v. Econ. Inn & Suites, 370 Ark. 414, 260 S.W.3d 281 (2007). \nThe test is whether the injury occurred within the time and space boundaries of \nthe employment, when the employee was carrying out the employer's purpose or \nadvancing the employer's interest, directly or indirectly. Id. In Conner, 373 Ark. \n372, 284 S.W.3d 57, we stated that where it was clear that the injury occurred \noutside the time and space boundaries of employment, the critical inquiry is \nwhether the interests of the employer were being directly or indirectly advanced \nby the employee at the time of the injury. Moreover, the issue of whether an \nemployee was performing employment services within the course of employment \ndepends on the particular facts and circumstances of each case. Id. \n \n The testimony differs on exactly whether attending the off-site lunch meetings was \nexplicitly mandatory. Attendance was certainly encouraged. While Mr. Blake Smith did not \ncharacterize the luncheon as mandatory, he described it as a team building exercise in \nwhich he placed importance as an opportunity “to bring people together” and to “work \nbetter together.”  \n Even if there was no formal agenda for the luncheons, it was an opportunity for the \nteam to meet outside of the office to discuss current or upcoming business needs associated \nwith facility residents and generally get to know each other better. The respondent-\nemployer benefitted both directly and indirectly from these meetings. On the day of the \naccident, the claimant and Ms. Lori Smith were walking out to ride to the restaurant \ntogether. This is consistent with Mr. Smith’s aim to bring people together more, outside of \neven the meeting itself. And while the meeting was not held in lieu of that week’s regular \n\nLUMPKINS- H401770  \n11 \n \n10:00 AM finance meeting, the evidence shows that it’s scheduling did provide for the \nfollowing week’s regularly scheduled finance meeting to be canceled. \n There is no question from the testimony, however, that company policy requires \nhourly employees to clock out for personal matters and that the claimant and others did not \nclock out to attend the lunch meeting. Nor is there a question that Mr. Smith was aware of \nboth of these facts. His efforts to arrange a lunchtime meeting during his employee’s \nnormal working hours cuts in favor of the meeting’s attendance being an employer-\nendorsed work activity. And his support for the meetings was clearly geared towards \nadvancing the interests of the employer, both directly and indirectly. \n The evidence shows that the claimant’s attending the luncheon was both advancing \nthe interests of the employer and within the time and space boundaries of her employment. \nThe claimant’s accident occurred while she was on the clock and while she was attempting \nto attend a meeting for her employer’s benefit. Her workplace injuries arose out of and in \nthe course of her employment and are, therefore, compensable. \nB. The Claimant is Entitled to Reasonable and Necessary Medical \nBenefits Associated with the Treatment of her Compensable Injuries. \n \n Arkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states that an employer \nshall provide for an injured employee such medical treatment as may be necessary in \nconnection with the injury received by the employee. Wal-Mart Stores, Inc. v. Brown, 82 \nArk. App. 600, 120 S.W.3d 153 (2003). But employers are liable only for such treatment and \nservices as are deemed necessary for the treatment of the claimant's injuries. DeBoard v. \nColson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987). The claimant must prove by a \npreponderance of the evidence that medical treatment is reasonable and necessary for the \ntreatment of a compensable injury. Brown, supra; Geo Specialty Chem. v. Clingan, 69 Ark. \nApp. 369, 13 S.W.3d 218 (2000). What constitutes reasonable and necessary medical \n\nLUMPKINS- H401770  \n12 \n \ntreatment is a question of fact for the Commission. White Consolidated Indus. v. Galloway, \n74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 \nS.W.3d 333 (2001). \n The claimant has met her burden in proving that she suffered compensable injuries \nto both elbows. The treatment reflected in the medical records appears reasonable and \nnecessary, and no testimony or evidence contrary to the same was presented. She is, thus, \nentitled to reasonable and necessary medical benefits associated with those injuries. \nC. The Claimant is Entitled to Temporary Total Disability Benefits from \nthe Date of Injury to 13 June 2024. \n \nThe claimant has proven compensable scheduled injuies in this claim. She is, thus, \nentitled to temporary total disability (TTD) benefits during her healing period or until she \nreturns to work, whichever happens first. Ark. Code Ann. § 11-9-521. The healing period is \nthat period for healing of the injury which continues until the employee is as far restored as \nthe permanent character of the injury will permit. Nix v. Wilson World Hotel, 46 Ark. App. \n303, 879 S.W.2d 457 (1994). If the underlying condition causing the disability has become \nstable and nothing further in the way of treatment will improve that condition, the healing \nperiod has ended. Id. Whether an employee’s healing period has ended is a question of fact \nfor the Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995). \nThe claimant must prove her entitlement to TTD benefits by a preponderance of the \nevidence. Ark. Code Ann. § 11-9-705(a)(3). \nIt is not disputed that the claimant did not work between the date of her injury and \n13 June 2024, the date through which she claims entitlement to TTD benefits. Her \ntreatment records available at the time of the hearing show that she remained under a \nphysician’s care and in a healing period at least one month beyond the 15 April 2024 clinic \nvisit that continued her physical therapy and anticipated further follow-up in a month’s \n\nLUMPKINS- H401770  \n13 \n \ntime. No evidence was presented to support a finding that her healing period had ended \nbefore 13 June 2024. \nI, therefore, find that the claimant is entitled to TTD benefits from the date of her \ninjury to 13 June 2024.\n3\n \nD. The Claimant Proved by a Preponderance of the Evidence that She is \nEntitled to an Attorney’s Fee. \n \nThe respondents controverted this claim in its entirety. The claimant is, accordingly, \nentitled to a controverted attorney’s fee consistent with the indemnity benefits associated \nwith these findings and Ark. Code Ann. § 11-9-715. \nV.  ORDER \n The respondents are directed to pay all benefits awarded under these Findings of \nFact and Conclusions of Law. The accrued sums are owed in a lump sum without discount, \nand this award shall earn interest at the legal rate until paid. Ark. Code Ann. § 11-9-809. \nThe claimant’s attorney is entitled to a fee of twenty-five (25%) percent of the indemnity \nbenefits awarded, with one-half (1/2) to be paid by the claimant and one-half (1/2) to be paid \nby the respondents. Ark. Code Ann. § 11-9-715. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE  \n  \n \n3\n See FN 2.","textLength":25005,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H401770 MARCELENE LUMPKINS, EMPLOYEE CLAIMANT BIRCH TREE COMMUNITIES, INC., EMPLOYER RESPONDENT ATA WORKERS’ COMP SI TRUST, CARRIER/ RISK MANAGEMENT SERVICES, TPA RESPONDENT OPINION FILED 19 NOVEMBER 2024 Heard before Arkansas Workers’ Compensation Commi...","outcome":"granted","outcomeKeywords":["granted:9"],"injuryKeywords":["back","fracture","neck"],"fetchedAt":"2026-05-19T22:46:32.198Z"},{"id":"alj-H204217-2024-11-19","awccNumber":"H204217","decisionDate":"2024-11-19","decisionYear":2024,"opinionType":"alj","claimantName":"Terri Sparks","employerName":"North Ark. College","title":"SPARKS VS. NORTH ARK. COLLEGE AWCC# H204217 November 19, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SPARKS_TERRI_H204217_20241119.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SPARKS_TERRI_H204217_20241119.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H204217 \n \nTERRI SPARKS, Employee CLAIMANT \n \nNORTH ARK. COLLEGE, Employer RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT \n \n \n OPINION FILED NOVEMBER 19, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Harrison, Boone \nCounty, Arkansas. \n \nClaimant  represented  by FREDERICK  S.  SPENCER,  Attorney  at  Law, Mountain  Home \nArkansas. \n \nRespondents  represented  by CHARLES  H.  MCLEMORE,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On August  21,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at Harrison, \nArkansas.      A  pre-hearing  conference  was  conducted  on February  5,  2024,  and  a  Pre-hearing \nOrder  was  filed  on February  6,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on January \n12, 2022. \n 3. The claimant sustained a compensable injury to her right foot  and ankle on or about \nJanuary 12, 2022. \n 4. The claimant’s weekly compensation rates will be determined at a later date. \n\nSparks – H204217 \n \n-2- \n By agreement of the parties the issue to litigate is limited to the following: \n 1. Whether Claimant is entitled to additional medical treatment for her compensable right \nfoot and ankle injury in the form of surgery as recommended by Dr. Kevin Steffen. \n The claimant's contentions are as follows: \n“The Claimant contends that she sustained a compensable injury to \nher right foot and ankle in the course and scope of her employment \non January 12, 2022. \n \nThe Claimant did a Change of Physician to Dr. Kevin Steffen. She \ncontends  that  she  is  entitled  to  reasonable  and  necessary  medical \ntreatment under his direction. \n \nThe  Claimant  contends  that  she  is  entitled  to  TTD  benefits  (dates \nto be determined). \n \nThe Claimant contends that she is entitled to an impairment rating \nby Dr. Steffen and related permanent partial disability benefits.” \n \n The respondents’ contentions are as follows: \n“The  Respondent  contends  that  the  claimant  reported  having  an \naccident  occurring  January  12,  2022  when  she  stumbled  on  a  mat \nand  injured  her  right  ankle.  The  claimant  was  diagnosed  with  a \nsprain  following  this  date.  Respondent  accepted  as  compensable \nthis   sprain   injury   the   claimant   sustained.   The   claimant   was \nprovided   reasonable   and   necessary   medical   treatment   for   her \ninjury,   including   MRI   study   and   treatment   with   Dr.   Jason \nPleimann.  The  claimant  had  a  preexisting  condition  in  her  right \nankle,  and  had  undergone  arthroscopic  surgery  on  her  right  ankle \nby  Dr. Pleimann  on  December  8,  2020.  The  claimant  had  arthritis \nfollowing her surgery. Dr. Pleimann wrote that the claimant’s need \nfor a surgery at this time is due to her preexisting condition, not a \nwork  injury,  and  released  the  claimant  at Maximum  Medical \nImprovement  on  September  12,  2022  with  0%  impairment  rating. \nThe claimant was paid TTD benefits until October 5, 2022, and has \nbeen  overpaid  TTD  benefits  for  which  Respondent  is  entitled  to  a \ncredit. The claimant used her one-time Change of Physician to see \nDr.  Steffen,  and  has  been  provided  a  visit  with  her  choice  of \nphysician by the Respondent. \n \n\nSparks – H204217 \n \n-3- \nRespondent   contends   that   the   claimant   has   been   provided \nreasonable   and   necessary   medical   treatment   and   appropriate \nindemnity benefits for her compensable sprain injury, and that the \nclaimant  cannot  meet  her  burden  of  proving  that  she  is  entitled  to \nadditional   medical   treatment   reasonable   and   necessary   for   or \ncausally  related  to  her  work  injury,  nor  is  the  claimant  entitled  to \nadditional  indemnity  benefits  for  her  work  injury.  Respondent \nfurther   contends   that   the   claimant   cannot   establish   that   a \ncompensable   injury   is   the   major   cause   of   any   permanent \nimpairment she contends to be entitled to. \n \nThe  Respondents  reserve  the  right  to  raise  additional  contentions, \nor  to  modify  those  stated  herein,  pending  the  completion  of \ndiscovery.” \n \n The  claimant  in  this  matter  is  a 58-year-old  female who  sustained  a  compensable  injury \nto  her  right  ankle/foot  on  or  about  January  12,  2022.  The  sole  issue  before  the  Commission  is \nwhether  the  claimant  is  entitled  to  additional  medical  treatment  for  her  right  ankle/foot  in  the \nform  of  surgery  as  recommended  by  Dr.  Kevin  Steffen.  I  note  that  prior  to  the  hearing  in  this \nmatter  the  claimant  underwent  that  surgical  intervention  at  the  hands  of  Dr.  Steffen  on \nSeptember 1, 2023, at Baxter Regional Medical Center. The claimant has previously had surgical \nintervention  on  her  right  ankle/foot  on  December  8,  2020.  Dr.  Jason Pleimann performed  an \narthroscopic  debridement  and  microfracture  at  that  time.  On  direct  examination  the  claimant \ndescribed  her  symptoms  before  and  after  her  January  12,  2022,  compensable  right  ankle/foot \ninjury as follows: \nQ Okay. And I want you to tell the Judge what has been going \non.  What  were  the  symptoms  before  you  had  the  injury  and  what \nwere  the  symptoms  after  you  had  the  injury  up  until  the  present? \nJust give him a history of that. Tell the Judge that. \n \nA I can say, honestly, my  ankle was bothering me  before the \nsecond  fall.  I  mean  I  was  still  able  to  drive  and  do  whatever  I \nwanted to do, but after the fall, it swells – basically, I mean I don’t \nknow how to say it, three to four times the size. I would have to go \n\nSparks – H204217 \n \n-4- \nget  groceries,  but  I  have  to  go  to  Walmart  and  do  the  call-in  and \nthey bring it out to you because I couldn’t walk through Walmart. \n \n Just  the  pain.  And  still  to  this  day,  even  after  the  surgery \nand the brace that I am in, I am in an AFO that is supposed to keep \nme non-weightbearing, and it still swells up. And it will only swell \nup – I don’t know how to explain it. Where the boot is, and let’s \nsay  this  is  my  foot,  the  boot  comes  to  here  (indicating).  It  starts \nhere  and  both  sides  and  then  comes  up  to  about  here  (indicating). \nWhen   it   swells,   it   comes   out   the   top   and   out   the   bottom \n(indicating). And as soon as you take it off, then the rest of the foot \nis swollen. \n \n On  direct  examination  the  claimant  was  asked  about  her  January  12,  2022,  admittedly \ncompensable right ankle/foot injury as follows: \nQ Okay.  Tell  the  Judge   what  happened  so  he   just  kind \nunderstands the degree and extent of the injury. \n \nA Okay.  When  you  walk  into  the  library  where  I  worked, \nthere  is  two  sets  of  doors.  I  had  unlocked  the  first  set  and  was \nwalking towards the second set when I tripped and fell on the black \nmat. \n \nQ Okay. And how did you fall? \n \nA Honestly,  it  happened  so  fast,  I  don’t  know.  The  only \nreason I didn’t hit the floor was because I did – I face-planted the \nglass door. \n \nQ Okay. And immediately  did you sense  any sensations with \nregard to that injury and where you were hurt, if anywhere? \n \nA Immediately, yes. I hurt immediately. \n \nQ Where? \n \nA My ankle. \n \nQ Which ankle? \n \nA My right ankle. \n \n\nSparks – H204217 \n \n-5- \nOn that same day, the  claimant was seen at  Washington Regional Urgent Care with complaints \nof ankle pain and swelling. The claimant was simply diagnosed with ankle pain upon findings of \nswelling and tenderness to the right ankle. The claimant was referred to an “ortho” at that time. \nOn February 9, 2022, the claimant was seen at Ozark Orthopedics by APRN Hannah Patterson. \nFollowing is a portion of that medical record: \nAssessment/Plan \nImpression: Right ankle sprain, date of injury 1/12/2022. She has a \npre-existing   medial   osteochondral   lesion   of   the   talus   that \nunderwent    arthroscopic    debridement    and    microfracture    on \n12/8/2020. \n \nPlan: She has been in the boot weightbearing as tolerated, she still \nhas  pretty  considerable  swelling  today  on  exam.  She  has  been  off \nwork  quite  a  bit  due  to  the  weather,  but  is  still  doing  her  normal \nwork duty with the use of the boot. I told her I think she can stay in \nthe  boot  for  another  2  weeks,  then  transition  back  to  her  lace  up \nankle boots if she feels able before her next appointment. We have \ndiscussed that with her history of surgery on this ankle, this could \ntake a while before it comes around fully. I want her to continue to \nice, take ibuprofen as needed, and give this some relative rest. We \nwill get her into some physical therapy to work on range of motion \nand strengthening. Follow-up in 3 weeks for reevaluation. I expect \nMMI in 6 to 8 weeks. \n \n The  claimant  continued  to  treat  with  APRN  Patterson  until  she  last  saw  her  on  May  2, \n2022. Following is a portion of that medical record: \nAssessment/Plan \nImpression: Right ankle sprain, date of injury 1/12/2022. She has a \npre-existing   medial   osteochondral   lesion   of   the   talus   that \nunderwent    arthroscopic    debridement    and    microfracture    on \n12/8/2020. \n \nPlan: Clinically her swelling looks much better today, but she says \nshe  is  still  having  pain.  She  has  been  doing  physical  therapy, \ntaking anti-inflammatories, at this point she has failed conservative \nmeasures.  At  this  point  we  need  to  proceed  forward  with  an  MRI \nto  further  evaluate  the  ankle  to  ensure  nothing  else  is  going  on \n\nSparks – H204217 \n \n-6- \nhere.  She  will  follow-up  with  Dr.  Pleimann  go  over  those  results \nand determine next steps. \n \n On  May  9,  2022,  the  claimant  underwent  an  MRI  of  the  right  ankle.  Following  is  the \nImpressions section from that diagnostic test: \nIMPRESSION: \n1. Progressive cystic changes are seen in the talar dome with joint \nspace   narrowing   of   the   tibiotalar   joint.   The   tibiotalar   joint \ndemonstrates a moderate joint effusion and changes consistent with \nsynovitis. \n2.  Reactive  edema  is  seen  involving  the  posterior  subtalar  joint, \ntalonavicular joint, and calcaneocuboid joint. \n3.  Edema  in  the  sinus  Tarsi  which  could  represent  sinus  Tarsi \nsyndrome in the right clinical setting. \n4. Split tear of the peroneal brevis tendon. \n \nThat  same  day,  the  claimant  was  seen  by  Dr.  Jason Pleimann,  an  orthopedic  surgeon  at  Ozark \nOrthopedics. Following is a portion of that medical record: \nAssessment/Plan \nRadiographs:  MRI  of  the  right  ankle  done  here  today  reviewed. \nThese demonstrate significant cystic change in the talar dome more \ndiffusely  than  the  area  of  her  previous  OLT.  There  is  significant \nbony edema throughout the talus and calcaneus. \n \nImpression:  Right  ankle  sprain  with  history  of  prior  arthroscopic \ndebridement OLT, date of injury 1/12/2022. Her MRI today shows \ndiffuse edema throughout the talus and into the calcaneus. I am not \nsure if this represents stress reaction or exacerbation of developing \narthritis.  It  could  also  potentially  be  consistent  with  early  onset \navascular necrosis of the talus. \n \nPlan: She has not been improving with measures tried previously. I \nam   going   to   have   her   go   back   into   her   boot   and   go \nnonweightbearing on a knee scooter. She needs to be a sitting work \nonly  nonweightbearing.  Return  in  4  weeks  with  a  standing  three-\nview right ankle. \n \n\nSparks – H204217 \n \n-7- \n On  July  18,  2022,  the  claimant  was  again  seen  by  Dr. Pleimann who, in  the  medical \nrecords,  acknowledges  her  past  right  ankle  difficulties,  which  include  surgical  intervention  and \ntreatment he provided. Following is a portion of that medical record: \nAssessment/Plan \nRadiographs:  Standing  3  view  of  the  right  ankle  were  done  here \ntoday. These again show some cystic change to the talus and some \nmild sclerosis. No obvious collapse. \n \nImpression:  Right  ankle  sprain  with  history  of  prior  arthroscopic \ndebridement OLT, date of injury 1/12/2022. Her MRI today shows \ndiffuse edema throughout the talus and into the calcaneus. I am not \nsure if this represents stress reaction or exacerbation of developing \narthritis.  It  could  also  potentially  be  consistent  with  early  onset \navascular necrosis of the talus. \n \nPlan:  She  has  had  less  pain  since  using  the  knee  scooter  and \nkeeping weight off of her foot. Her x-rays look stable. At the very \nleast  she  is  got  severe  arthritis,  and  certainly  it  is  possible  she \ncould  have  avascular  necrosis  here.  I  am  going  to  keep  her \nnonweightbearing  for  another  6  weeks  and  repeat  x-rays  then.  As \nlong  as  there  is  no  change  we  will  repeat  her  MRI  after  that  visit. \nShe needs to remain in sitting work only nonweightbearing on this \nextremity.  She  tells  me  that  she  was  fired  from  her  job  after  she \nwas  placed  on  limitations.  Ultimately,  we  may  try  a  tall  Arizona \ntype  brace  after  the  next  visit  an  MRI  to  see  if  it  would  let  her \nweight-bear with less pain. \n \n On  September  12,  2022,  the  claimant  underwent  another  right  ankle  MRI.  Following  is \nthe Impression section of that diagnostic report: \nIMPRESSION: \n1. Degenerative  changes  of  the  tibiotalar  joint  posterior  subtalar \njoint,  talonavicular  joint,  and  calcaneocuboid  joint.  Overall  this  is \nstable slightly progressed since the previous exam. \n2.  Moderate  tibiotalar  joint  effusion  with  changes  consistent  with \nsynovitis. \n3.  Split  tear  of  the  personal  brevis  tendon  in  the  retromalleolar \nregion. \n \n\nSparks – H204217 \n \n-8- \nOn  that  same  day,  the  claimant  was  again  seen  by  Dr. Pleimann.  Following  is  a  portion  of  that \nmedical record: \nAssessment/Plan \nRadiographs: An MRI of this ankle done here today is reviewed. It \ndemonstrates    moderately    worsened    tibiotalar    subtalar    and \ntalonavicular  arthritis  with  subchondral  cystic  change.  The  ankle \njoint looks the worst. \n \nImpression: Right  ankle  sprain  with  history  of  prior  arthroscopic \ndebridement  OLT,  date  of  injury  1/12/2022.  Her  MRI  shows \ndiffuse   edema   throughout   the   talus   and   into   the   calcaneus \nconsistent  with  developing  arthritis.  It  could  also  potentially  be \nconsistent with early onset avascular necrosis of the talus. \n \nPlan:  Her  pain  has  not  improved.  She  still  unable  to  bear  weight. \nHer MRI shows progressive arthritic change primarily in the ankle \nand subtalar joint but to a lesser extent the talonavicular joint. We \ndiscussed   various   treatment   options,   including   various   fusion \noptions,  total  talus  replacement,  ankle  replacement.  I  think  given \nconcerns over possible vascularity of the talus I think she would do \nbest  with  a  tibiotalar  calcaneal  arthrodesis.  This  would  still  leave \nher   talonavicular   joint   arthritic,   but   hopefully   this   could   be \nmanaged  with  cortisone  injections  etc.  She  understands  she  had  a \nvery   stiff   ankle   and   hindfoot.   She   understands   is   a   risk   of \nnonunion,  wound  healing  problems,  infection  among  others.  She \nwishes  to  proceed.  She  is  going  to  call  and  let  me  know  when  in \nthe  near  future  would  be  best  for  her.  In  the  interim  she  could \nreturn to sitting work only. She should not drive. \n \n On September 14, 2022, the respondent authored a letter to Dr. Pleimann concerning the \nclaimant’s condition regarding her compensable right ankle/foot injury. The respondent asked \nDr. Pleimann to  respond  to  several  questions.  Following  are  the  questions  and  Dr. Pleimann’s \nhandwritten responses: \n1. What pathology identified on the enclosed MRIs are considered \nacute 01/12/22 injury related? \n None \n \n\nSparks – H204217 \n \n-9- \n2. Would the reported mechanics of tripping, but not falling, have \nresulted  in  her  current  symptoms  and  pathology?  Please  explain \nand provide supporting rationale. \n NA \n \n3. Which of Ms. Sparks’ current symptoms are the direct result of \nthe  01/12/22  injury,  versus  progressive  degenerative  joint  disease \nor  from  the  pre-existing  osteochondritis  dissecans  lesions  and \nsurgery? Please explain and provide supporting rationale. \n The  majority,  if  not  all,  of  her  symptoms  are  related  to \nprogressive [illegible]. \n \n4.  Is  the  proposed  right  ankle  arthrodesis  indicated  and  medically \nappropriate, especially based on her weight (five feet, seven inches \nand   300   pounds)   and   reported   tobacco   dependency?   Please \nexplain. \n Yes \n \n5. Can you state, with a reasonable degree of medical certainty, the \nmajor  cause  (greater  than  50%)  for  the  proposed  right  ankle \narthrodesis is the direct result of the 01/12/22 injury versus her pre-\nexisting pathology? Please provide supporting rationale. \n NA \n \n6. If the ankle arthrodesis is indicated for pre-existing pathology, is \nthere   any   additional   treatment   indicated   as   the   result   of   the \n01/12/22 injury? \n NA \n \n7.  If  the  ankle  arthrodesis  is  indicated,  medically  appropriate,  and \nthe  direct  result  of  the  01/12/22  injury  what  is  the  potential \noutcome   based   on   her   pre-existing   and   co-existing   medical \nconditions? \n NA \n \n A  second  letter  was  sent  as  a  follow-up  letter  to  Dr. Pleimann on  September  27,  2022, \nwith  two  follow-up  questions.  Those  two  questions  and  Dr. Pleimann’s handwritten responses \nfollow: \n1. Since  the  proposed  surgery  is  not  considered  01/12/22  injury \nrelated, has Ms. Sparks achieved MMI as the result of the 01/12/22 \nwork injury? If so, what date was MMI achieved? \n Yes. 9/12/22 \n\nSparks – H204217 \n \n-10- \n \n2.  If  MMI  has  been  achieved,  is  there  any  assignment  of  a \npermanent  partial  physical  impairment  rating  as  the  result  of  the \n01/12/22  work  injury?  If  so,  please  document  the  percentage  of \nimpairment  and  the  objective  finding  this  is  based  in  accordance \nwith  the  enclosed  Arkansas  Workers’  Compensation  Rule  34. \nPlease include edition, page, table, and chart number. \n 0% impairment rating. \n \n The claimant requested a change of physician from the Commission on January 6, 2023. \nThat  change  of  physician  request  was  granted  to  the  claimant  changing  her  physician  from  Dr. \nPleimann to Dr. Kevin Steffen on January 18, 2023. \n The  claimant  was  seen  by  Dr.  Kevin  Steffen  on  February  7,  2023,  at  Foot  and  Ankle \nSpecialty in Mountain Home, Arkansas. Following is a portion of that medical report: \nObjective: \nModerate  edema  with  varicosities  noted  bilaterally  with  increased \nedema  to  the  right  foot  and  ankle.  There  is  significant  pain  with \npalpation  to  the  right  foot  and  ankle  and  with  ROM  of  the  ankle \nand  SJP.  DP  and  PT  palpable,  temperature  tone  turgor  within \nnormal limits, neurological sensation intact, hair  growth adequate, \nmuscular skeletal strength is +5 over 5 bilateral lower extremities. \nRadiographs,  3  views  right  foot,  AP,  MO  and  lateral  and  2  views \nright ankle, AP and mortise, do not reveal acute changes, there are \nsignificant  degenerative  changes  noted  to  the  ankle  and  subtalar \njoint with cystic changes to the talus with sclerosis of the talus and \nSTJ, there are also degenerative changes to the TN joint. \nMRIs  and  CTs  from  2020  and  2022  were  evaluated,  CT  in  2020 \nsuggested  osteochondral  lesion  to  the  talar  dome,  2022  MRIs \nsuggested  significant  bone  marrow  edema  to  rearfoot  and  ankle \nwith  degenerative  changes  to  the  ankle,  STJ  and  TN  and  cystic \nchanges to the talus. \n \nAssessment: \nPost traumatic arthritis right foot and ankle \nAVN talus right \nPain \n \nPlan: \nDiscussed treatment, risks and complications \nRadiographs taken, evaluated and discussed with the patient \n\nSparks – H204217 \n \n-11- \nEvaluated and discussed the MRIs and CTs with the patient \nDiscussed   treatment   and   diagnosis   in   detail   with   the   patient \nincluding  immobilization,  elevation,  rest,  non  weight  bearing  and \nsurgery. \nDiscussed  risks,  complications  and  post  operative  care  of  surgery, \nwhich would be tibiotalar and subtalar joint fusion. \nDiscussed length of time required for non weight bearing and risk \nof non healing. Discussed that if the patient does not heal, it could \npossibly result in loss of limb. \nDiscussed   that   both   sudden   injury   and   chronic   degenerative \nchanges from an old injury could cause the AVN of the talus. \nRx for topical pain cream \nRx for oral supplements to aid in bone healing \nFollow up in 1 month \n \n On  August  24,  2023,  the  claimant  was  again  seen  by  Dr.  Steffen.  At  that  time,  the \nclaimant  was  seen  for  pre-op  of  her  scheduled  right  ankle  scope  and  subchondroplasty.  On \nSeptember  1,  2023,  the  claimant  underwent  surgical  intervention  at  the  hands  of  Dr.  Steffen. \nFollowing are portions of that operative note: \nPREOPERATIVE DIAGNOSES: \n1. Osteochondritis dissecans of the right ankle. \n2. Arthritis, right ankle. \n \nPOSTOPERATIVE DIAGNOSES: \n1. Osteochondritis dissecans of the right ankle. \n2. Arthritis, right ankle. \n \nPROCEDURE: Ankle arthroscopy with significant debridement as \nwell as repair of the osteochondritis dissecans in the right talus. \n*** \nSURGICAL  INDICATIONS:  This  is  a  57-year-old  female  patient \nwell known to my practice with increasing pain to the right ankle. \nThe  patient  has  had  a  few  different  injuries  in  the  last  year  or  so \nresulting  in  significant  pain  and  has  had  several  MRIs  and  CT \nconfirming  significant  degenerative  changes  to  the  ankle  joint  as \nwell as cystic and osteochondral defects in the talus and the distal \ntibia. \n \n The  claimant  has  asked  the  Commission  to  determine  whether  surgical  intervention \nperformed by Dr. Steffen on September 1, 2023, was reasonable and necessary medical treatment \n\nSparks – H204217 \n \n-12- \nfor her compensable right ankle/foot injury. Employers must promptly provide medical services \nwhich  are  reasonably  necessary  in  connection  with  the  compensable  injuries,  Ark.  Code  Ann. \n§11-9-508(a).    However,  injured  employees  have  the  burden  of  proving  by  a  preponderance  of \nthe evidence that medical treatment is reasonably necessary.  Patchell v.  Wal-Mart Stores, Inc., \n86  Ark.  App.  230,  184  S.W.3d  31  (2004).    What  constitutes  reasonable  and  necessary  medical \ntreatment is a fact question for the Commission, and the resolution of this issue depends upon the \nsufficiency  of  the  evidence.   Gansky  v.  Hi-Tech  Engineering,  325  Ark.  163,  924  S.W.2d  790 \n(1996). \n The  claimant  was  consistently  diagnosed  with  a  right  ankle  sprain  as  a  result  of  her \nJanuary 12, 2022, fall which gave rise to her compensable right ankle/foot injury. Dr. Pleimann \nwas well aware of the claimant’s prior right ankle/foot difficulties as he was the surgeon who \ntreated  and  performed  surgery  on  the  claimant  in  December  of  2020.  Dr. Pleimann,  in  his \nresponse  to  questions  submitted  to  him  by  the  respondent  on  September  14,  2022,  made  his \nopinion  clear.  Dr. Pleimann is of the opinion that none of the pathology in the claimant’s two \nMRIs  are  related  to  her  January  12,  2022; fall,  that  the  injury  the  claimant  had  on  January  12, \n2022, would not result in her current symptoms or pathology; and that no treatment was needed \nat this time for the claimant’s January 12, 2022, fall which was the cause of her compensable \nright ankle/foot injury. Given Dr. Pleimann’s history with the claimant, I give much weight to his \nopinions about the claimant’s need for treatment. \n Dr. Steffen, who the claimant saw through a change of physician, stated in his February \n7, 2023, medical report regarding the claimant, “Discussed  that  both  sudden  injury  and  chronic \ndegenerative changes from an old injury could cause the AVN of the talus.” In the claimant’s \nSeptember 1, 2023, operative note, Dr. Steffen stated, “This is a 57-year-old female patient well \n\nSparks – H204217 \n \n-13- \nknown to my practice with increasing pain to the right ankle. The patient has had a few different \ninjuries  in  the  last  year  or  so  resulting  in  significant  pain  and  has  had  several  MRIs  and  CT \nconfirming   significant   degenerative   changes   to   the   ankle   joint   as   well   as   cystic   and \nosteochondral defects in the talus and the distal tibia.” Dr. Steffen also appears to be under  the \nbelief that the claimant’s current issues are a result of degenerative changes. At least I find no \nindication from Dr. Steffen that the claimant’s surgical need was brought about by the claimant’s \nJanuary 12, 2022, fall. \n The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  the  surgical \nintervention  performed  by  Dr.  Steffen  on  September  1,  2023,  is  reasonable  and  necessary \nmedical treatment for her compensable right ankle/foot injury. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nFebruary  5,  2024,  and  contained  in  a  Pre-hearing  Order  filed February  6,  2024,  are  hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto additional medical treatment for her compensable right ankle/foot injury in the form of surgery \nas recommended by Dr. Steffen. \n  \n \n\nSparks – H204217 \n \n-14- \nORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":27220,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H204217 TERRI SPARKS, Employee CLAIMANT NORTH ARK. COLLEGE, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED NOVEMBER 19, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Harrison, Boone County, Arkansas. Cl...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["ankle","sprain","back","knee"],"fetchedAt":"2026-05-19T22:46:34.267Z"},{"id":"alj-H202476-2024-11-19","awccNumber":"H202476","decisionDate":"2024-11-19","decisionYear":2024,"opinionType":"alj","claimantName":"Sonja Woodson","employerName":"Fedex Ground Package System, Inc","title":"WOODSON VS. FEDEX GROUND PACKAGE SYSTEM, INC. AWCC# H202476 November 19, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Woodson_Sonja_H202476_20241119.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Woodson_Sonja_H202476_20241119.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H202476 \n \nSONJA WOODSON, \nEMPLOYEE                                                                                                              CLAIMANT \n \nFEDEX GROUND PACKAGE SYSTEM, INC., \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nSEDGWICK CLAIMS MGMT SERVICES, INC., \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED NOVEMBER 19, 2024 \n \nHearing conducted on Tuesday, November 5, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Sonja Woodson, Pro Se, of Jonesboro, Arkansas, did not appear in person at \nthe hearing.  \n \nThe Respondents were represented by the Honorable Zach Ryburn, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents.  \nA hearing on the Motion was conducted on November 5, 2024, in Little Rock, Arkansas.  Claimant, \naccording to Commission file is Pro Se, failed to appear at the hearing.  \nThe Claimant worked for the Respondent/Employer as a Senior Operations Assistant. The \ndate  for  Claimant’s  alleged  injury  was  on December 23,  2021.  She  reported  her  injury  to \nRespondent/Employer the same day. Respondents admitted Respondents Exhibit 1, Form AR-C, \nconsisting of 1 page. Also, admitted into evidence was blue-backed Form AR-C filed March 28, \n2022, Form AR-C filed May 13, 2024, Form AR-C filed December 1, 2023, Form AR-1, Form \nAR-2, a copy of certified return receipt dated October 12, 2024, a copy of certified return receipt \n\nWOODSON, AWCC No. H202476 \n \n2 \n \ndated September 18, 2024, Irene Voyles email dated April 12, 2022, and copy of hearing notice, \nas discussed infra. \nThe record reflects on March 28, 2022, a Form AR-C was filed with the Commission, by \nthen-attorney Laura  Beth  York,  purporting  that  Claimant  injured  her head,  neck,  and  back. \nClaimant’s counsel subsequently filed another Form AR-C on December 1, 2023, and another on \nMay  13,  2024,  with  no  notable  difference  from  the  March  28,  2022,  Form  AR-C  filing. \nNevertheless,  on April  11, 2022,  a  Form  AR-1  was  filed  with  the  Commission  purporting  that \nClaimant’s injuries occurred when she slipped on a metal rod and fell hitting her head on the floor. \nOn March 29, 2023, a Form AR-2 was filed by Respondents denying compensability of the injury. \nRespondents, via email dated April 12, 2022, acknowledged acceptance of the claim as medical-\nonly for the head contusion, cervical neck strain, and lumbar strain. The email also asserted that \nthe Claimant had reached maximum medical improvement and has been released from care.  \nThe Claimant, through her then-attorney, filed a change of physician request on May 17, \n2024. No action has been taken towards this request due to Respondents now denying the claim in \nits entirety. On July 26, 2024, Claimant’s counsel filed a Motion to Withdraw as Counsel. The Full \nCommission granted Claimant’s counsel Motion on August 14, 2024.  \nThe Respondents next filed a Motion to Dismiss on August 23, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The  Claimant  was  sent,  certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss from my office on August 26, 2024, to her last known address. \nThe certified motion notice was unclaimed by Claimant as noted in the September 18, 2024, return \nreceipt. However,  the motion notice that was sent  regular  U.S.  Mail  was  not  returned  to  the \nCommission. Claimant did not respond to the notice in writing as required. Thus, in accordance \nwith  applicable  Arkansas  law,  the  Claimant  was  mailed  due  and  proper  legal  notice  of \n\nWOODSON, AWCC No. H202476 \n \n3 \n \nRespondents’ Motion to Dismiss hearing date at her current address of record via the United States \nPostal  Service  (USPS), First  Class  Certified  Mail,  Return  Receipt  Requested,  and  regular  First-\nClass Mail, on September 20, 2024. The certified notice was not claimed according to the October \n12, 2024, return  notice; but  the  regular  First-Class  mail hearing notice  was not returned to  the \nCommission.  The  hearing  took  place  on November 5,  2024.  And  as  mentioned  before,  the \nClaimant did not show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had  reasonable  notice  of  the November 5, \n2024, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \n\nWOODSON, AWCC No. H202476 \n \n4 \n \nConsistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith  reasonable  notice, on  the Respondents’ Motion  to Dismiss. Though  the  certified  hearing \nnotice was unclaimed, that same notice was also sent to the Claimant’s address of record by First-\nClass U.S. Mail on September 20, 2024, and did not return to the Commission. The Claimant is \nresponsible  for  providing  the  Commission  with  her  current  address.  The  Commission  is \nresponsible for providing reasonable notice of a hearing to the Claimant. Sending a hearing notice \nto the last known address that was provided to it by the Claimant is reasonable. Thus, I find by the \npreponderance of the evidence that reasonable notice was given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant filed her Form AR-C on March \n28,  2022. Since the filing of Claimant’s Form AR-C  then,  she  has  failed  to  request  a  hearing. \nTherefore, I do find by the preponderance of the evidence that Claimant has failed to prosecute her \nclaim by failing to request a hearing. Thus, Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":7286,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H202476 SONJA WOODSON, EMPLOYEE CLAIMANT FEDEX GROUND PACKAGE SYSTEM, INC., SELF-INSURED EMPLOYER RESPONDENT SEDGWICK CLAIMS MGMT SERVICES, INC., TPA RESPONDENT OPINION FILED NOVEMBER 19, 2024 Hearing conducted on Tuesday, November 5, 2024, before the Arkansa...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["neck","back","cervical","strain","lumbar"],"fetchedAt":"2026-05-19T22:46:36.347Z"},{"id":"alj-H307272-2024-11-18","awccNumber":"H307272","decisionDate":"2024-11-18","decisionYear":2024,"opinionType":"alj","claimantName":"Joshua Gayler","employerName":"Wendy’s Old Fashioned Hamburgers","title":"GAYLER VS. WENDY’S OLD FASHIONED HAMBURGERS AWCC# H307272 November 18, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GAYLER_JOSHUA_H307272_20241118.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GAYLER_JOSHUA_H307272_20241118.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.: H307272 \n \nJOSHUA GAYLER,  \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nWENDY’S OLD FASHIONED HAMBURGERS, \nEMPLOYER                                                                                                           RESPONDENT                                                                                               \n \nTRAVELERS CASUALTY INSURANCE CO.                \nOF AMERICA/TRAVELERS INDEMNITY CO., \nINSURANCE CARRIER/TPA                                                                              RESPONDENT                                                    \n \nOPINION FILED NOVEMBER 18, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n  \nClaimant, pro se, failed to appear at the hearing.      \n \nRespondents represented by the Honorable Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A  hearing  was  held  on the Respondents’ motion to dismiss for lack of  prosecution, on \nNovember 6, 2024, in the above styled workers’ compensation matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004).    Here,  the  sole  issue  for \ndetermination is whether this matter should be dismissed due to the Claimant’s failure to timely \nprosecute it  under the  provisions  of Ark.  Code  Ann.  §11-9-702 (Repl.  2012),  and/or Arkansas \nWorkers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken at the dismissal hearing. \n\nGAYLER – H307272 \n \n2 \n \nThe  record  consists  of  the  transcript  of November 6, 2024, dismissal hearing  and  the \ndocuments  held  therein.  Specifically,  Commission’s  Exhibit  1  includes six total  pages  of \ncorrespondence,  pleadings  and  various  other  forms related  to  this  claim,  along  with  tracking \ninformation from the United States Postal Service; and Respondents’ Exhibit 1 consisting of \nfourteen (14) pages, which includes correspondence from the Commission. \n          Procedural History \nIn the case at bar, the Claimant alleged that he sustained an injury on October 28, 2023, \nduring and in the course of his employment with respondent-employer.  On October 31, 2023, per \na Workers’ Compensation – First Report of Injury Form, the Claimant reported to his employer \nthat  he  twisted  his  knee  as  he  walked  out  of  the  office.  However,  the evidence  of  record  does \nreflect that the Claimant ever filed with the Commission a Form AR-C in this matter.  Nor did the \nClaimant ever file with the Commission any other means of documentation sufficient to establish \na claim for workers’ compensation benefits.    \n Nevertheless, on or about November 13, 2023, the Respondents filed a Form AR-2 with \nthe  Commission controverting this claim.  Specifically, the Respondents stated: “No  injury  per \nstatutory definition.”  \nSubsequently, in February of 2024, prehearing questionnaires and notices were sent to the \nparties.   The  Respondents  filed  a  timely  response  with  the  Commission  on  March  5,  2024.  \nHowever, the  Claimant did  not file  a response.   As  a  result,  the  file  was  returned  to  the \nCommission’s general files.  \n Since  the assertion of a workers’ compensation claim, the Claimant has not taken any \naction  to  pursue  this matter.  Nor  has  the  Claimant  made  a  bona  fide  request  for  a  hearing,  or \notherwise tried to pursue his assertion for a workers’ compensation claim.         \n\nGAYLER – H307272 \n \n3 \n \nTherefore, on August 15, 2024, the Respondents filed a letter motion asking that the claim \nbe dismissed for a lack of prosecution.    \nOn August 21, 2024, I sent a letter to the Claimant letting him know about the motion for \ndismissal of this matter, along with a deadline for filing a written objection. This correspondence \nwas sent to the Claimant via first-class and certified mail.  The letter sent to the Claimant via first-\nclass mail has not been returned to the Commission.  However, the notice sent via certified mail \nwas returned to the Commission marked “unclaimed-unable to forward.”       \nYet, there was no response from the Claimant.    \nNevertheless, pursuant to a Notice of Hearing dated September 12, 2024, this matter was \nset for a hearing on November 6, 2024, at 12:30 p.m., in El Dorado.   \nThe hearing notice was sent to the Claimant via first-class and certified mail.  The notice \nsent via certified mail was not returned to the Commission marked “unclaimed, unable to forward.”  \nHowever,  the  notice  sent  to  the  Claimant  via  first-class  mail  has  not  been  returned  to  the \nCommission.  This evidence preponderates that the Claimant received notice of the hearing.    \nStill, there was no response from the Claimant regarding this matter. \nNevertheless, I conducted a hearing on the Respondents’ motion to dismiss as scheduled.  \nHowever, the Claimant did not appear at the hearing to object to his claim being dismissed.  The \nRespondents  appeared  through  their  attorney.   During  the  hearing,  counsel for  the  Respondents \nmoved that this matter be dismissed due to a lack of prosecution.  Counsel specifically noted that \nnothing has been done or in any way has this claim been pursued by the Claimant.       \n                                    Analysis \nTypically,  a  Form  AR-C is  the  means  for  filing  a  “formal  claim,” for  workers’ \ncompensation benefits.  In the present matter, no Form AR-C has ever been filed in this matter.  \n\nGAYLER – H307272 \n \n4 \n \nHowever, I recognize that other means exist to instigate the filing of a claim for Arkansas workers’ \ncompensation benefits other than by way of a Form AR-C.   \nNevertheless, I am unable to find any document of record or even in the Commission’s file \nthat would  suffice  to constitute  the  filing  of  a  claim  for  benefits.    As  such,  I must find that  no \ndocument of record exists to support a finding that the Claimant ever filed with the Commission, \na claim for workers’ compensation benefits in this matter.   \nBecause no claim has ever been filed by the Claimant, I am compelled to find that there is \nno claim subject to dismissal per the Respondents’ motion.  Therefore, the motion to dismiss is \nhereby respectfully denied. \n                      FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn the basis of the record as a whole, I hereby make the following findings of fact and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. A  Form  AR-C  or  any  other  document sufficient  to constitute a  claim  for \nworkers’ compensation benefits has never been filed in this matter. \n \n3. The  evidence  preponderates  that  the  Claimant  received  notice of  the \nRespondents’ motion to dismiss this matter for a lack of prosecution. \n \n4. The Respondents’ motion to dismiss is denied because no claim exists to be \nsubject to dismissal.    \n \nORDER \n The Respondents’ motion to dismiss this matter is hereby respectfully denied because \nthere is no document of evidence sufficient to constitute the filing of a claim for Arkansas workers’ \ncompensation benefits.  Hence, it follows that considering that no claim has ever been filed, there  \n \n\nGAYLER – H307272 \n \n5 \n \nis no claim subject to being dismissed.    \nIT IS SO ORDERED. \n   \n \n                                                                    ________________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":7986,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H307272 JOSHUA GAYLER, EMPLOYEE CLAIMANT WENDY’S OLD FASHIONED HAMBURGERS, EMPLOYER RESPONDENT TRAVELERS CASUALTY INSURANCE CO. OF AMERICA/TRAVELERS INDEMNITY CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 18, 2024 Hearing held before Adminis...","outcome":"dismissed","outcomeKeywords":["dismissed:8","denied:3"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:46:25.902Z"},{"id":"alj-H306460-2024-11-18","awccNumber":"H306460","decisionDate":"2024-11-18","decisionYear":2024,"opinionType":"alj","claimantName":"Alfred Grasso","employerName":"City Of Fort Smith","title":"GRASSO VS. CITY OF FORT SMITH AWCC# H306460 November 18, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GRASSO_ALFRED_H306460_20241118.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRASSO_ALFRED_H306460_20241118.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H306460 \n \nALFRED GRASSO, Employee                                                                       CLAIMANT \n \nCITY OF FORT SMITH, Employer                                                           RESPONDENT \n \nCENTRAL ADJUSTMENT COMPANY, Carrier/TPA                               RESPONDENT                                                                                                    \n \n \n \n OPINION FILED NOVEMBER 18, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by DOUGLAS M. CARSON, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On October 28, 2024, the above captioned claim came on for hearing at Fort Smith, \nArkansas.  A pre-hearing conference was conducted on September 18, 2024 and a pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     Claimant sustained a compensable injury to his left shoulder on September \n5, 2023. \n 3.     Respondent  has accepted and is paying permanent partial disability benefits \nbased on a 2% rating to the body as a whole. \n\nGrasso – H306460 \n \n 2 \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Claimant’s entitlement to an attorney fee on the 2% impairment rating. \n The claimant contends that the respondent controverted this claim in its entirety \nand that therefore all indemnity benefits in this case have been controverted.  Claimant \ncontends that his attorney is entitled to a fee regarding the permanent partial disability \nbenefits in this case. \n The  respondent’s contentions are set forth in its pre-hearing questionnaire which \nis attached to Commission Exhibit #1 as Exhibit #1.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \nconducted on September 18, 2024 and contained in a pre-hearing order filed that same \ndate are hereby accepted as fact. \n 2. Respondent  has  controverted  this  claim;  therefore,  claimant’s  attorney  is \nentitled to an attorney fee on the 2% impairment rating. \n \n FACTUAL BACKGROUND \n  On September 5, 2023, claimant was employed by respondent as a roll-off \ndriver.    Claimant  testified  that  while  he  was  attaching  a  hook  to  a  trash  compactor  he \nsuffered an injury to his left shoulder.  At some point the claimant reported this injury to \n\nGrasso – H306460 \n \n3 \n \nhis  supervisor  and  eventually  sought  medical  treatment.    Claimant’s  initial  medical \ntreatment consisted of an injection; the use of a shoulder mobilizer; and physical therapy. \n Claimant  was  informed  by  respondent  that  his  claim  was  not  accepted  as \ncompensable.    As  a  result,  claimant  hired  Attorney  Walker  who  filed  a  Form  AR-C on \nclaimant’s behalf and requested a hearing.   \n Prior  to  a  hearing  being  scheduled,  claimant  underwent  an  MRI  scan  which \nrevealed a full thickness or near full-thickness rim rent tear of the supraspinatus tendon.  \nUpon receipt of this MRI scan respondent accepted claimant’s injury as compensable and \npaid  for  medical  treatment  as  well  as  temporary  total  disability  benefits.    In  addition, \nrespondent also paid claimant’s attorney a fee on the disputed temporary total disability \nbenefits. \n Claimant eventually underwent surgery on his left shoulder and was assigned a \n2% impairment rating.  Respondent accepted and paid this impairment rating, but did not \npay claimant’s attorney a fee on the rating.   \n Claimant has filed this claim contending that his attorney is entitled to an attorney \nfee on the 2% impairment rating. \n \nADJUDICATION \n As previously noted, claimant initially contended that he suffered a compensable \ninjury to his left shoulder on September 5, 2023.  On September 27, 2023, claimant signed \nForm AR-N stating that he had injured his left shoulder on September 4, 2023 (the actual \ndate  of  injury  was  September 5,  2023  since September 4,  2023  was  Labor  Day)  while \ninstalling a hook onto a compactor box.  Claimant also indicated that he had informed his \n\nGrasso – H306460 \n \n4 \n \nemployer of this injury on September 19, 2023.  During this period of time while claimant \nwas  receiving  medical  treatment  he  was  informed  by  the  respondent  that  it  was  not \naccepting claimant’s injury as compensable.  As a result, claimant hired Attorney Walker \nto represent him. \n In  a  letter  dated  October  26, 2023  from Attorney Walker to the  Commission,  he \nfiled  Form  AR-C  alleging  an  injury  to  the  left  shoulder  and  requesting  a  hearing  on \ncompensation  benefits.    On  that  same  day  Attorney  Walker  also  filed  a  pre-hearing \nquestionnaire  alleging  a  compensable  injury  and  requesting  payment  of  compensation \nbenefits.  On November 17, 2023, a pre-hearing conference was scheduled for December \n6,  2023.    In  response  to  claimant’s  pre-hearing  questionnaire,  respondent  filed  a  pre-\nhearing questionnaire alleging that claimant had failed to prove by a preponderance of \nthe  evidence  that  he  suffered  a  compensable  injury  to  his  left  shoulder  on  or  about \nSeptember 5, 2023.    \n Prior  to  the  pre-hearing  conference  being  conducted,  claimant  underwent  the \naforementioned MRI scan and respondent decided to accept this claim as compensable.  \nRespondent  paid  claimant  temporary  total  disability  benefits  from  September  25,  2023 \nthrough December 12, 2023 and paid Attorney Walker an attorney fee on those benefits.  \nIn  addition,  respondent  filed an amended  AR-2  accepting  the  claim  based  on  new \ninformation received. \nInitially, respondent contends that the Commission rules allow a respondent to file \nan amended AR-2 with respect to the acceptance of a claim.  While the Commission rules \ndo allow a respondent to file an amended Form AR-2, the mere filing of an amended AR-\n2 is  not controlling  as to  the  issue  of  whether  respondent  controverted  claimant’s \n\nGrasso – H306460 \n \n5 \n \nentitlement to compensation benefits. \n Here, respondent clearly controverted the compensability of claimant’s injury.  As \na result, it was necessary for him to hire an attorney who in turn requested a hearing.  It \nwas  only  after  a  pre-hearing  conference  was  scheduled  on  this  request  that  claimant \nunderwent an MRI scan and based upon those MRI results respondent chose to accept \nthe claim as compensable. \n At the hearing there was much testimony submitted by the respondent with respect \nto why it chose not to initially accept the claim as compensable.  However justified the \nrespondent might have been in deciding to deny compensability at that point in time, the \nrespondent  did  in  fact  deny  compensability  of  claimant’s  claim  which  resulted  in  the \nnecessity  of  him  hiring  an  attorney.    Even  the  respondent  acknowledged  that  it \ncontroverted claimant’s entitlement to compensation benefits by paying the attorney fee \non the temporary total disability benefits. \n Respondent also notes that at the time of the original hearing request claimant did \nnot  request  permanent  partial  disability benefits;  therefore,  those  benefits could not be \ncontroverted.    However,  at  the  time  of  the  original  filing  a  claim  for  permanent  partial \ndisability benefits would have been premature since claimant had not undergone surgery \nand had not been assigned an impairment rating. \n Finally,  respondent  contends  that  because  there  was  no “award” of  permanent \npartial disability benefits in this case, an attorney fee is not appropriate pursuant to A.C.A. \n§11-9-704.    However,  the  Arkansas  Workers’ Compensation  Commission  and  more \nimportantly the Arkansas Court of Appeals have found that under similar circumstances \nan attorney fee is appropriate.  Walmart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W. \n\nGrasso – H306460 \n \n6 \n \n3d  835  (2001).    In Brown,  the  respondent  initially  accepted  a  claim  and  paid  some \ncompensation benefits.  However, at a pre-hearing conference the employer controverted \nclaimant’s  entitlement  to  temporary  partial  disability  benefits  and  a  hearing  was \nscheduled.  Approximately  one  month  before  the  scheduled  hearing  the  employer \nindicated that it would accept the temporary partial disability and pay appropriate benefits.  \nHowever,  it  refused  to  pay  an  attorney  fee  on  the  temporary  partial  disability.    The \nArkansas Court of Appeals affirmed the Commission’s decision to award an attorney fee.  \nIn doing so, the Court stated: \n  The Commission interpreted the requirements of  \n  §11-9-715(a)(2)(B)(ii) to be that where an employer \n  controverts an injured employee’s entitlement to \n  certain benefits, but later accepts liability prior to \n  a  hearing on the merits, the employee’s attorney \n  may still request a hearing for an attorney’s fee on \n  those controverted benefits.  The Commission found \n  that when there is no dispute that the employer  \n  controverted benefits but then paid the benefits on \n  which an attorney fee is sought, that the employee \n  has established an award of those benefits for \n  purposes of the employee’s attorney seeking an \n  attorney’s fee under Ark. Code Ann. §11-9-715(a) \n  (2)(B)(ii).  The Commission found no requirement \n  in  §11-9-715(a)(2)(B)(ii) requiring that an award of \n  controverted benefits must precede the employer’s \n  payment of benefits for the claimant’s attorney to be \n  entitled to a fee.  We agree and hold that the \n  Commission’s findings are supported by substantial \n  evidence. \n \n \n The  Court  went  on  to  state  that  it  had  long  been  recognized  that  making  an \nemployer  liable  for  an  attorney  fee  serves  a legitimate social  purpose  such  as \ndiscouraging oppressive delay in recognition of liability, deterring arbitrary or capricious \ndenial of claims, and ensuring the ability of claimants to obtain adequate and competent \n\nGrasso – H306460 \n \n7 \n \nlegal representation.  If the fundamental purpose of an attorney’s fee is to be achieved, it \nmust be considered that the real object is to place the burden of litigation expenses upon \nthe party which made it necessary.  Cleek v. Great Southern Metals, 335 Ark. 342, 918 \nS.W.  2d  529  (1998).    The  Court  went  on  to  note  that  if  the  claimant  in Brown had  not \nemployed counsel to assist her, it was reasonable to conclude that her claim for temporary \npartial  disability  benefits  would  not  have  been  properly  presented  and  protected.  \nLikewise, in this case, if claimant had not employed counsel to assist him in establishing \ncompensability  of  his  injury,  he  would  have  never  been  entitled  to permanent  partial \ndisability benefits. \n Respondent acknowledged that it did not request additional time to investigate the \nclaim and that respondent did not inform claimant that it was investigating the claim and \nif it obtained additional information his claim would be reconsidered.  Instead, claimant \nwas  simply  informed  by  the  respondent  that  this  claim  was  not  being  accepted  as \ncompensable.    As  a  result,  claimant  received  no  temporary  total  disability  benefits  but \ninstead was required to take leave in order to obtain income.  Claimant was thus required \nto  obtain  counsel  to  pursue  his  claim  of  compensability  and  workers’ compensation \nbenefits. \n Based  upon  the  decision  in Brown and all  of  the evidence  presented,  I find  that \nclaimant’s attorney is entitled to an attorney fee on the 2% permanent impairment rating \nassigned to claimant for his compensable injury. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \n\nGrasso – H306460 \n \n8 \n \nhis attorney is entitled to an attorney fee on the 2% permanent partial impairment rating \npaid to claimant as a result of his left shoulder surgery. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $437.95. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":13133,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306460 ALFRED GRASSO, Employee CLAIMANT CITY OF FORT SMITH, Employer RESPONDENT CENTRAL ADJUSTMENT COMPANY, Carrier/TPA RESPONDENT OPINION FILED NOVEMBER 18, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, A...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:46:27.968Z"},{"id":"alj-H205774-2024-11-18","awccNumber":"H205774","decisionDate":"2024-11-18","decisionYear":2024,"opinionType":"alj","claimantName":"Tommy Jones","employerName":"Superior Chevrolet Siloam Springs","title":"JONES VS. SUPERIOR CHEVROLET SILOAM SPRINGS AWCC# H205774 November 18, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JONES_TOMMY_H205774_20241118.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JONES_TOMMY_H205774_20241118.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H205774 \n \nTOMMY JONES, Employee CLAIMANT \n \nSUPERIOR CHEVROLET SILOAM SPRINGS, Employer RESPONDENT \n \nRISK MANAGEMENT SERVICES, Carrier RESPONDENT \n \n \n OPINION FILED NOVEMBER 18, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by GARY DAVIS, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On August  20,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.   A pre-hearing conference was conducted on June 24, 2024, and a Pre-hearing Order \nwas  filed  on June  25,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on August \n8, 2022. \n 3. The respondents have controverted the claim in its entirety. \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $790.00 for temporary total disability benefits and $593.00 for permanent partial \ndisability benefits. \n\nJones – H205774 \n \n-2- \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to his spleen, liver, collar bone, ribs \nand left hand on or about August 8, 2022. \n 2. Whether Claimant is entitled to medical treatment for his spleen, liver, collar bone, ribs \nand left-hand injuries. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  August  9, \n2022, to January 16, 2023. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n 5.  Respondents  raise  Intoxication Defense;  alternatively,  the  injuries  were  idiopathic  in \nnature. \n The claimant's contentions are as follows: \n“Claimant   contends   that   he   sustained   compensable   multiple \ninjuries  as  a  result  of  an  automobile  accident,  08/08/22.  Claimant \ncontends  entitlement  to  payment  of  temporary  total  disability \nbenefits  from  the  date  of  injury  through  December  2022  (precise \ndate to be provided). Claimant has incurred medical expenses of at \nleast  $150,000.00.  This  claim  has  been  entirely  controverted  for \npurposes of attorneys’ fees.” \n \n The respondents’ contentions are as follows: \n“Respondents contend that Claimant did not suffer a compensable \ninjury  on  8/8/22.  Respondents  contend  the  claimant  had  a  post-\naccident  drug  screen  that  was  positive  for  THC,  benzodiazepine \nand alcohol. According to the police report, Claimant was drinking \nbeer  at  the  time  of  the  accident.  The  claimant  also  told  the \nambulance attendant that he had stopped on his way home to get a \nfew beers and was drinking one. Alternatively, Respondents assert \nthe   cause   of   the   injury   was   idiopathic   in   nature   and,   thus, \nRespondents   are   not   liable   for   it   under   the   Act.   Lastly, \nRespondents  contend  that  Claimant  resigned  from  his  job  on \n10/11/22.  In  the  event  compensability  is  found  and  Claimant  is \nfound  entitled  to  benefits  for  his  off  work  status,  Respondents \n\nJones – H205774 \n \n-3- \nassert  that  entitlement  ended  when  he  resigned  his  position  with \nthe employer.” \n \n The  claimant  in  this  matter  is  a 62-year-old  male who  alleges  to  have  sustained \ncompensable  injuries  to  his  spleen,  liver,  collar  bone,  ribs,  and  left  hand  in  a  motor  vehicle \naccident on or about August 8, 2022.  \n On that day the claimant was travelling by himself from the respondent’s automobile \ndealership  in  Northwest  Arkansas  to  Tulsa,  Oklahoma,  to  meet  with  a  customer  to  have  a \ndocument signed. Following is a portion of the claimant’s direct examination testimony about the \nevents that followed: \nQ And then what happened after that? \n \nA Well, I was probably less than a mile from the convenience \nstore  so  I  went  in  the  convenience  store  because  I  had  to  take  a \nleak, washed my hands. Okay?  I did pick up two beer, paid for it, \nand put them in a sack by the paperwork, started the car and got to \nthe  end  of  the  parking  lot,  and  then  I  shared  my  location  with  my \nwife so she would know about what time I would be home. \n \nQ How did you do that? \n \nA With my cell phone. \n*** \nQ I get it now. So you left from there and what’s the next \nthing that you remember? \n \nA The next thing I remember is bam, bam. \n \nQ The wreck? \n \nA Two loud bam bams. \n \nQ And you don’t remember why the wreck took place or what \nwas going on, just the – just the impact? \n \nA I don’t remember seeing either vehicle. I don’t remember \nseeing anybody at the scene. A lot of things I don’t remember. \nSome things I do, but there’s a lot that I don’t. \n\nJones – H205774 \n \n-4- \n \nQ How far were you from the convenience store? \n \nA About eight miles. \n \nQ How  far  were  you  from – how  far  was  the  convenience \nstore from where you had met the couple to get the signatures? \n \nA About half mile. \n \nQ About a half mile. So very close? \n \nA Uh-huh. \n \nQ And then convenience store eight miles –  \n \nA I think the convenience store was on the way to the freeway \nor to the lanes I needed to get onto to go back; 412 East. \n \nQ 412 East back to Rogers? \n \nA Actually,  Siloam  Springs  and  then  on  to  Rogers.  The \ndealership was in Siloam Springs. \n \nQ So now this accident, again, it takes place only eight miles \nfrom the convenience store? \n \nA Uh-huh. \n \nQ Is that right? \n \nA Correct. \n \nQ This young lady is trying to get down what you say. \n \nA Yes.  Yes,  eight  miles.  Could  be  eight  and  a  half,  could  be \nten point nine but eight miles. \n \nQ So  now  you  were  present  in  the  courtroom  a  moment  ago \nwhen  your  wife  testified  that  she  had  called  and  happened  to  get \nyou  right  at  the  time  that  this  accident  or  right  after  this  accident \nhad taken place? \n \nA Yes. \n \n\nJones – H205774 \n \n-5- \nQ And  the  ambulance  records  that  we  have  indicate  that  you \nwere found sitting up in the driver’s seat of an SUV. \n  \n Were you driving an SUV? \n \nA Yes, sir. \n \nQ And that you were “awake, alert, and oriented.” \n \nA Well – \n \nQ You were awake? You were not unconscious? \n \nA Well, I heard the phone ring, and I answered it. \n \nQ But  it  also  says  here  that  you  were  unable  to – were  not \nphysically  or  mentally  capable  of  signing  the  report.  Did  you – \nwere you aware of that? \n \nA No, I wasn’t aware of that. \n \nQ Were  you – do  you  remember  the  conversation  with  your \nwife? \n \nA I  remember  the  conversation  with  my  wife.  I  remember \nthere  was  a  lady  back  here that  said,  “No,  ma’am,  he’s  hurt. \nThere’s  an  ambulance  on  the  way.”  Then  I  don’t  remember \nanything else. I don’t remember them getting me out of the car. I \ndidn’t  remember  the  slide at the   accident.   The   next   think   I \nremember is, you know, they put you on a stretcher and they click \nit,   you   know,   they   click/click   because   they   put   you   in   an \nambulance? \n \nQ Yes, sir. \n \nA They click/click, I remember that. And then I remember – I \nguess  my  eyes  opened  up.  The  doors  were  open  and  there  was  a \nlady  on  the  left,  and  they  slid  me  in  there.  She  was  probably  a \nparamedic, and I remember her asking me a few questions. I don’t \nremember them getting me out of the ambulance. And then I wake \nup three days later. \n \nQ You  had  had  some  pretty  significant  surgery  after  that \nambulance ride; you’re aware of that? \n \n\nJones – H205774 \n \n-6- \nA Yeah. \n \n An  Oklahoma  Highway  Patrol  officer  arrived  on  the  scene  of  the  claimant’s  motor \nvehicle accident and subsequently produced an “Official Oklahoma Traffic Collision Report,” \nwhich is found at Respondents’ Exhibit 2. That report, through a diagram, explains the motor \nvehicle  accident  which  in  total  included  three  motor  vehicles.  A  portion  of  that  report  entitled \n“Remarks” follows: \nUNIT 1 WAS TRAVELLING EASTBOUND ON US 412 IN THE \nOUTSIDE  LANE.  UNIT  2  WAS  TRAVELLING  EASTBOUND \nON  US  412  IN  THE  OUTSIDE  LANE  IN  FRONT  OF  UNIT  1. \nUNIT 3 WAS TRAVELLING EASTBOUND ON US 412 IN THE \nINSIDE LANE. UNIT 1 COLLIDED WITH THE REAR END OF \nUNIT 2. AOI #1  IS .9  MILES WEST OF THE  WEST EDGE OF \nCOUNTY  ROAD  (4160  RD)  AND  6  FEET  NORTH  OF  THE \nSOUTH EDGE OF US 412 EASTBOUND. UNIT 2 DEPARTED \nTHE  ROADWAY  TO  THE  RIGHT  IN  A  CLOCKWISE  SKID \nAND  STRUCK  THE  GUARDRAIL.  AOR  FOR  UNIT  2  IS  157 \nFEET EAST OF AOI #1 AND 6 FEET SOUTH OF THE SOUTH \nEDGE OF  US 412, FACING SOUTHWEST. UNIT 1 ENTERED \nTHE    INSIDE    LANE    FACING    NORTHEAST.    UNIT    3 \nCOLLIDED WITH THE DRIVER’S SIDE OF UNIT 1. AOI #2 IS \n177 EAST OF AOI #1 AND 20 FEET NORTH OF THE SOUTH \nEDGE  OF  US  412.  UNIT  1  WAS  SENT  INTO  A  CLOCKWISE \nSPIN  AND  DEPARTED  THE  ROADWAY  LEFT  LEAVING \nAPPROXIMATELY   140   FEET   OF   YAW   MARKS   IN   THE \nGRASS  MEDIAN  AFTER  THE  COLLISION  WITH  UNIT  3. \nUNIT  1  CONTINUED  EASTBOUND  IN  A  CLOCKWISE  SPIN \nAND   ENTERED   THE   ROADWAY   TRAVELLING   SOUTH \nACROSS     THE     ROADWAY.     UNIT     1     STRUCK     THE \nGUARDRAIL  ON  THE  SOUTH  SIDE  OF  US  412  AND  CAME \nTO  REST.  AOR  FOR  UNIT  1  IS  350  FEET  EAST  OF  AOI  #1 \nAND 6 FEET SOUTH  OF THE SOUTH EDGE OF US 412 E/B. \nAOR  FOR  UNIT  3  IS  198  FEET  EAST  OF  THE  AOI  AND  20 \nFEET NORTH OF THE SOUTH EDGE OF US 412 E/B. \n \n The claimant was attended to and treated by EMS personnel at the motor vehicle accident \nscene. Following is a portion of the patient care report from that interaction: \n\nJones – H205774 \n \n-7- \nD - DISPATCHED  TOS  VEHICLE  MVC  ON  HWY  412  AND \nVERDIGRIS  RIVER  BRIDGE,  EB,  UNKNOWN  INJURIES,  FD \nEN ROUTE. \n \nC – SHOULDER/COLLAR BONE PAIN, SWELLING L HAND, \nABRASION    TO    LEFT    FLANK,    TRAUMATIC    INJURY \nSECONDAR TO MVC. \n \nH – PT IS A 50 YOM WHO IS THE RESTRAINED DRIVER OF \nA  CHEVY  EQUINOX  SUV  THAT  WAS  TRAVELING  EAST \nON 12 AND HIT A CAR WHILE CHANGING LANES ON THE \nBRIDGE  AND  SPUN  AND  WAS  T-BONED  IN  THE  DRIVER \nDOOR/DRIVER’S  SIDE  BY  A  PICKUP.  PT  C/O  L. \nSHOULDER/COLLAR  BONE  PAIN  AND  HAS  SWELLING \nCLOSED   DEFORMITY   TO   L.   HAND.   HE   REPORTS   HE \nDOESN’T  THINK  HE  IS  HURT  ANYWHERE  ELSE.  HE \nDENIES  LOC.  HE  REPORTS  HE  REMEMBERS  CHANGING \nLANES AND DID NOT SEE THE OTHER CAR. THERE IS 12” \nINTRUSION  TO  THE  DRIVER  DOOR,  FD  IS  WORKING  ON \nEXTRICATION   WITH   EXTRICATION   TOOLS.   THERE   IS \nSIGNIFICANT   INTRUSION   DAMAGE   TO   BOTH   DRIVER \nSIDE    DOORS    AND    FRONT    DRIVER    FENDER.    SOME \nDAMAGE  TO  REAR  AND  HOOD.  THE  WINDSHIELD  IS \nBROKEN. HE HAD STOPPED AND GOT A FEW BEERS AND \nWAS  DRINKING  ONE  WHEN  THE  ACCIDENT  OCCURRED. \nPMH:  HTN,  A-FIB,  AND  CARDIOVERSION  4  TIMES  TWO \nYEARS  AGO.  NOT  ON  MEDS  FOR  A-FIB,  TAKES  BP  MED \nNKDA. \n \n The  claimant  was  taken  by  ambulance  to  St.  Francis  Health  Emergency  Department  in \nTulsa, Oklahoma, to triage. A triage note, authored by Registered Nurse Tabitha Spataro with a \ngiven date of service of August 8, 2022, 10:03 pm, states: \nPatient  was  in  MVA  going  60mph  and  tried  to  change  lanes,  hit \nanother car, and then got t-boned. Patient had an open alcohol can \nin  room.  Approx  1ft  intrusion  into  front  door.  Air  bags  deployed. \nBroken glass present. Steering wheel intact. \n \nPatient has been in a-fib. Pulse 150-190. Bp stable 133/79 BP, 95% \nRA, Glucose 122. \n \nFracture  to  left  hand,  left  collar  bone.  Unable  to  get  ring  off  left \nhand. Good cap refill but swelling noted. \n\nJones – H205774 \n \n-8- \n \nThe  claimant  was  admitted  to  the  hospital  at  that  time  and  was  not  discharged  until  August  19, \n2022.  It  is  without  question  that  the  claimant  sustained  serious  injuries  during  his  August  8, \n2022,  motor  vehicle  accident  including  injuries  to  his  spleen,  liver,  collar  bone,  ribs,  and  left \nhand. Claimant’s Exhibit 1 well documents those injuries and the treatment he received while \nhospitalized. \n The respondent in this matter has raised the Intoxication Defense. I will first address that \ndefense. Ark.  Code  Ann.  11-9-102(4)(B)(iv)(a)-(d)  states  that  compensable  injuries  do  not \ninclude  injuries  where  the  accident  was  substantially  occasioned  by  the  use  of  alcohol,  illegal \ndrugs, or prescription drugs used in contravention of physician’s orders. The presence of alcohol, \nillegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a \nrebuttable  presumption  that  the  injury  or  accident  was  substantially  occasioned  by  the  use  of \nalcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders. An \nemployee is not entitled to compensation unless it is proven by a preponderance of the evidence \nthat the alcohol did not substantially occasion the injury or accident. \nThe Supreme Court analyzed the intoxication statute with regard to alcohol usage, in \nERC Contractor Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998), and \ndetermined the following: \n(1) Any amount   of   an   intoxicating   or   illegal   substance   invokes   the  \npresumption  that  the  injury  or  accident  was  substantially  occasioned  by \nthe use of the intoxicant or illegal substance. \n \n(2) Whether  a  rebuttable  presumption  is  overcome  by  the  evidence  is  a \nquestion of fact for the Commission to determine. \n \n(3) The  phrase,  \"substantially  occasioned  by\"  requires  that  there  be  a  direct \ncausal  link  between  the  use  of  an  intoxicant  or  illegal  substance  and  the \ninjury. \n\nJones – H205774 \n \n-9- \n \n During  the  claimant’s  hospitalization,  specifically on  August  9,  2022, at  1:43  pm, \nRegistered Nurse Daniel Russell collected a urine sample  from the claimant. That urine sample \nwas  then  used  in  a  drug  screen  profile  for  drugs  of  abuse.  The  medical  records  regarding  the \nurine collection, testing, and results can be found at Respondents’ Exhibit 1, pages 24 and 25. \nFollowing is a portion of that report: \nAmphetamines: Results <500ng/mL are considered negative. \nBarbituates: Results <200ng/mL are considered negative. \nBenzodiazepines: Results <200ng/mL are considered negative. \nBuprenorphine: Results <5ng/mL are considered negative. \nCannabinoids: Results <50ng/mL are considered negative. \nCocaine: Results <300ng/mL are considered negative. \nMethadone: Results <300ng/mL are considered negative. \nOpiates: Results <300ng/mL are considered negative. \n \nAmphetamines Qual Negative \nBarbituates Qual Negative \nBenzodiazepine Qual Positive \nBuprenorphine Qual Negative \nCannabinoid Qual Positive \nCocaine Qual  Negative \nMethadone Qual Negative \nOpiates Qual  Negative \n The  test  results  from  St.  Francis  Health  System  indicate  the  claimant  was  positive  for \nbenzodiazepine  at  a  level  above  200ng/mL  and  cannabinoid  at  a  level  above  50ng/mL.  After  a \nreview  of  the  medical  records  submitted  into  evidence  I  find  no  indication  of  testing  for  the \npresence of alcohol in the claimant’s system. EMS records and hospital records note at least the \npresence  of  an  open  can  of  beer  during  the  motor  vehicle  accident.  The  claimant  testified  on \ndirect examination that after he completed his time with the respondent’s customer, he went to a \nnearby convenience store and while there “pick up two beer, paid for it, put them in a sack by the \n\nJones – H205774 \n \n-10- \npaperwork....” On  cross examination the claimant was asked  about the presence of beer as \nfollows: \nQ Now,  the  beer  as  far  as  what  you  have  admitted,  you  said \nyou bought two tall boy 24 to 25 ounce beers; correct? \n \nA I’m sure that’s what they were. \n \nQ Do those fit in the cup holder of the vehicle? \n \nA I put them in a bag. \n \nQ Do they fit in the cup holder of the vehicle? \n \nA I don’t know. \n \nQ You don’t know. And you told me, even though you paid \nthe  open  container  ticket,  you  don’t  know  how  the  beer  got \nopened? \n \nA That’s correct. \n \nQ Is that your testimony again today? \n \nA Yeah, sure is. \n \nQ And  you  came  to  that  idea  that  the  can  busted  during  the \nwreck? \n \nA Could have. I don’t know. I didn’t open it. \n \nQ Is that – \n \nA And all my clothes, there’s no alcohol on my clothes. \n \nQ Does that sound possible to you that they would  write you \nan open container ticket for a busted can? \n \nA You know, I don’t know. I never had that ticket before. \n \nQ The ambulance report stated that you had stopped and got a \nfew beers, was drinking one when the accident occurred. \n \n You have seen that report; haven’t you? \n\nJones – H205774 \n \n-11- \n \nA I haven’t read the report. \n \nQ Personnel at ER said you had an open alcohol can, they say \nin the room but I’m pretty sure the discussion was about it being in \nthe car. \n \n You didn’t have a beer in the room; did you? \n \nA No, and I’m sure – I didn’t have a room. \n \n Given the test results of the claimant’s urine screen analysis at St. Francis Health System \nof positive findings of both benzodiazepine and cannabinoid, along with the presence of beer in \nthe motor vehicle accident and the EMS report indicating the claimant was taking a drink of beer \nat  the  time  of  the  accident,  I  find  that  the  respondent  has  met  its  burden  to  invoke  the  rebuttal \npresumption that the claimant’s motor vehicle accident was substantially occasioned by the use \nof alcohol, illegal drugs, or prescription drugs used in contravention of physician’s orders. \n The claimant, in order to prove the injuries he alleges compensable, must now overcome \nthe    rebuttable    presumption.    The    claimant    testified    on    cross    examination    regarding \nbenzodiazepine as follows: \nQ What   about   taking   muscle   relaxers,   Benzodiazepine, \nXanax, anything like that? \n \nA Never had one. \n \nQ So if any of that is going on, you wouldn’t be on the clock \nor working; right? \n \nA Yeah, I don’t know anything about them others that you \nmentioned. Never had one. \n \nQ If  any  of  that  was  going  on,  you  wouldn’t  be  on  duty \nworking; would you? \n \nA Like I said, I don’t know anything about them benzo... \n \n\nJones – H205774 \n \n-12- \n The claimant was also asked on cross examination about his use of medical marijuana as \nfollows: \nQ Okay.  Now,  you  told  me  you  got  medical  marijuana  for \nanxiety  and  stress  so  you  could  relax  in  the  evening;  is  that \ncorrect? \n \nA I may have told you that. \n \nQ Well, did you or didn’t you? You did, didn’t you? I have \nyour deposition transcript if we want to go page by page. \n \nA There’s a lot of things I don’t remember. I don’t want to sit \nhere and say yeah if I don’t remember it. \n \nQ Okay. \n \nA I’ll tell you the truth right now. \n \nQ You   told   me   in   your   deposition   you   were   prescribed \nmedical marijuana for anxiety and stress so you could relax in the \nevening. You don’t dispute that; do you? \n \nA No. \n*** \nQ (Mr.   Parrish   continuing.)   Eddie,   even   if   you   have   a \nmarijuana card, you’re not supposed to ingest marijuana and drive; \nare you? \n \nA No, I don’t do that. \n \nQ And that’s especially true if you’re combining marijuana \nand alcohol; correct? \n \nA Yes. \n \nQ And that would be triple true if you’re combing marijuana, \nand  alcohol,  and  any  type  of  Benzodiazepine  or  muscle  relaxer; \nright? \n \nA I don’t take ‘em. \n \nQ Do you have the card with you? \n \n\nJones – H205774 \n \n-13- \nA No. I don’t carry the card. \n \nQ  Where’s it at? \n \nA I assume it’s in our safe at home. I hadn’t had the card in a \nlong time. \n \nQ Do  you  remember  telling  me  in  your  deposition  that  you \ncut the card up after the wreck? \n \nA I may have. \n \nQ Where did the picture that we’ve introduced today, where \ndid that come from? \n \nA I had it already. \n \nQ You already had a picture of your card? \n \nA In  case  I  had  to  renew  it  or  something  like  that  or  wanted \nto. \n \nQ Where was this picture? \n \nA In my pictures. \n \nQ On your phone? \n \nA Uh-huh. \n \nQ Can you say “yes” for the record? \n \nA Oh. \n \nQ Say “yes” instead of “uh huh” –  \n \nA Yes. \n \nQ -- so the record’s clear. \n \nA That’s correct. \n \nQ Did you explain to me that you haven’t used the card since \nthe wreck because the wreck was a “eye opener” for you? You \ndon’t deny saying that; do you? \n\nJones – H205774 \n \n-14- \n \nA I don’t deny saying that. \n \n The  claimant  does  deny  the  use  of  benzodiazepine  at  any  time  and  denies  the  use  of \nmarijuana/cannabinoid and alcohol while working. The claimant was very clear that he has very \nlittle knowledge of the events surrounding the motor vehicle accident. Following is a portion of \nthe claimant’s cross examination testimony: \nQ At your deposition and then again today, you explained that \nyou don’t remember anything about what happened between when \nyou  dropped  you  location  at  the  gas  station  to  your  wife  and  the \nimpact of the wreck? \n \nA That’s correct. \n \nQ Right? \n \nA That’s correct. \n \nQ You do agree you bought the beer, but you don’t remember \ngetting on the road, driving, any of it? \n \nA No. Next thing is bam bam. \n \nQ You can’t tell me what you did or did not do between the \ngas station and the wreck – \n \nA No. \n \nQ -- in any form or fashion; can you? \n \nA No. \n \nQ You said  it’s  a  mystery.  I  think  you  said  you’d  pay  a \nmillion dollars to find out what happened in that window of time? \n \nA I’ve told that to several buddies of mine. \n \n\nJones – H205774 \n \n-15- \n The claimant did admit to receiving a citation from the State of Oklahoma for inattentive \ndriving  and  a  citation  for  open  alcohol  beverage  container.  The  claimant  did  not  receive  a \ncitation for DUI or DWI. \n Here the claimant is unable to rebut the presumption that his motor vehicle accident was \nsubstantially  occasioned  by  the  use  of  benzodiazepine,  cannabinoid,  and  alcohol.  The  only \nevidence presented is his own uncollaborated testimony that essentially says, I did not do or use \nthose substances at all or in the time and space surrounding the motor vehicle accident. I note the \ntime  directly  before  the  accident  the  claimant  says  he  has  no  memory  of  at  all.  In Ester  v. \nNational  Home  Ctrs.,  Inc., 61  Ark  App.  91,  967  S.W.2d  565  (1998),  the  Arkansas  Court  of \nAppeals found that a worker failed to rebut the presumption that his motor vehicle accident was \ncaused  by  the  use  of  illegal  drugs  where  he  tested  positive  for  opiates  and  cocaine  metabolites \nand the only evidence presented to rebut the presumption was his own uncollaborated testimony \nconcerning  the  nature  and  extent  of  his  drug  use  and  his  own  uncollaborated  testimony  his \ninterpretation of the cause of the accident. \n This case is similar to the claimant’s in that the claimant’s only evidence to rebut the \npresumption  is  his  own  uncollaborated  testimony.  I  give  much  more  weight  to  the  urine  screen \ndone   on   the   claimant  in   the   hospital   that   revealed   the   presence   of   benzodiazepine   and \ncannabinoid.  I  also  give  weight  to  the  EMS  and  hospital  records  that  indicate  the  presence  of \nalcohol at the scene of the motor vehicle accident, along with the citation the claimant admits he \nwas given for an open container of alcohol. The claimant has failed to rebut the presumption that \nhis  August  8,  2022,  motor  vehicle  accident  was  substantially  occasioned  by  benzodiazepine, \ncannabinoid,  and  alcohol.  As  such,  the  claimant  is  unable  to  prove  that  he  sustained  the \ncompensable injuries he alleges as a result of that August 8, 2022, motor vehicle accident. \n\nJones – H205774 \n \n-16- \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJune 24, 2024, and contained in a Pre-hearing Order filed June 25, 2024, are hereby accepted as \nfact. \n 2. The  respondent  has  successfully  raised  the  Intoxication  Defense  and  the  claimant  has \nbeen  unable  to  overcome  the  rebuttable  presumption  that  his  motor  vehicle  accident was \nsubstantially  occasioned  by  the  use  of  alcohol,  illegal  drugs,  or  prescription  drugs  used  in \ncontravention of physician’s orders. \n 3. The claimant has failed to prove by a preponderance of the evidence that he sustained \ncompensable  injuries  to  his  spleen,  liver,  collar  bone,  ribs,  and  left  hand  on  or  about  August  8, \n2022. \n 4. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto medical treatment in this matter. \n 5. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto temporary total disability benefits in this matter. \n 6. The claimant has failed to prove by a preponderance of the evidence that his attorney is \nentitled to an attorney’s fee in this matter. \n \n \n\nJones – H205774 \n \n-17- \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":26498,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H205774 TOMMY JONES, Employee CLAIMANT SUPERIOR CHEVROLET SILOAM SPRINGS, Employer RESPONDENT RISK MANAGEMENT SERVICES, Carrier RESPONDENT OPINION FILED NOVEMBER 18, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County...","outcome":"denied","outcomeKeywords":["granted:1","denied:4"],"injuryKeywords":["back","shoulder","fracture"],"fetchedAt":"2026-05-19T22:46:30.042Z"},{"id":"full_commission-H300809-2024-11-15","awccNumber":"H300809","decisionDate":"2024-11-15","decisionYear":2024,"opinionType":"full_commission","claimantName":"April Bennett","employerName":"Fayetteville Public Schools","title":"BENNETT VS. FAYETTEVILLE PUBLIC SCHOOLS AWCC# H300809 November 15, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Bennett_April_H300809_20241115.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Bennett_April_H300809_20241115.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H300809 \n \nAPRIL BENNETT, \nEMPLOYEE \n \nCLAIMANT \nFAYETTEVILLE PUBLIC SCHOOLS,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED NOVEMBER 15, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JAMES A. ARNOLD, II, \nAttorney at Law, Fort Smith, Arkansas. \n \n \n ORDER \n In the above-styled matter, the claimant has filed a MOTION TO \nREMAND CLAIM FOR THE PURPOSE OF TAKING ADDITIONAL \nEVIDENCE.  The Full Commission denies the motion.     \n The parties stipulated that the employment relationship existed on \nFebruary 28, 2021.  The claimant contended that she “sustained a \ncompensable occupational injury/illness when exposed to mold while \nworking.\"  The respondents contended that “the claimant’s condition does \nNOT meet the definition of either a compensable injury or compensable \noccupational illness.”  After a hearing, an administrative law judge filed an \nopinion on August 12, 2024.  The administrative law judge found that the \n\nBENNETT - H300809  2\n  \n \n \nclaimant “has failed to prove by a preponderance of the evidence that she \nsustained a compensable occupational illness to her body as a whole due \nto exposure to mold in the workplace on or about February 28, 2021.”  The \nadministrative law judge therefore denied the claim, and the claimant filed a \ntimely notice of appeal.   \n The claimant now seeks to remand the claim to the administrative \nlaw judge “for the purpose of taking additional evidence.”  The respondents \noppose the claimant’s motion to remand.  The following are prerequisites by \nthe Full Commission on proffer to present newly discovered evidence:  (1)  \nthe newly discovered evidence must be relevant; (2)  it must not be \ncumulative; (3)  it must change the result; and (4)  the party seeking to \nintroduce the new evidence must be diligent.  Quinn v. Webb Wheel, 52 \nArk. App. 208, 915 S.W.2d 740, citing Haygood v. Belcher, 5 Ark. App. 127, \n633 S.W.2d 391 (1982).   \n In the present matter, the claimant seeks to introduce into the record \nthe results of a Lab Analysis Report dated March 16, 2022.  The claimant \nasserts that the Lab Analysis Report demonstrates that the claimant’s home \nwas “clear of mold.”  Nevertheless, the Full Commission finds that the \ninformation in the Lab Analysis Report will not change the result of our \nadjudication with regard to whether or not the claimant sustained a \ncompensable occupational illness.  In addition, the claimant has not been \n\nBENNETT - H300809  3\n  \n \n \ndiligent in presenting the new evidence.  There is no probative evidence \nsupporting the claimant’s assertion that alleged “brain fog” caused the \nclaimant’s delay in presenting the results of the Lab Analysis Report to the \nCommission. \n The Full Commission therefore denies the claimant’s MOTION TO \nREMAND CLAIM FOR THE PURPOSE OF TAKING ADDITIONAL \nEVIDENCE.  We direct the Clerk of the Commission to establish a briefing \nschedule with regard to the claimant’s appeal of the administrative law \njudge’s opinion filed August 12, 2024.  The Full Commission’s subsequent \nde novo review will include exclusively the evidence, exhibits, and \ntestimony submitted into the record on May 14, 2024.   \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents.","textLength":3698,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H300809 APRIL BENNETT, EMPLOYEE CLAIMANT FAYETTEVILLE PUBLIC SCHOOLS, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 15, 2024","outcome":"denied","outcomeKeywords":["remanded:3","denied:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.814Z"},{"id":"full_commission-H204642-2024-11-14","awccNumber":"H204642","decisionDate":"2024-11-14","decisionYear":2024,"opinionType":"full_commission","claimantName":"Margaret Freeman","employerName":"Miller County Judge","title":"FREEMAN VS. MILLER COUNTY JUDGE AWCC# H204642 November 14, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Freeman_Margaret_H204642_20241114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Freeman_Margaret_H204642_20241114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H204642 \n \nMARGARET A. FREEMAN, \nEMPLOYEE \n \nCLAIMANT \nMILLER COUNTY JUDGE,  \nEMPLOYER \n \nRESPONDENT \nASS’N OF ARKANSAS COUNTIES/ \nAAC RISK MG’T SERVICES, INC., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED NOVEMBER 14, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE NEAL L. HART, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE CAROL LOCKARD \nWORLEY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed July \n15, 2024.  The administrative law judge granted the respondents’ motion for \nan Independent Medical Evaluation.  After reviewing the entire record de \nnovo, the Full Commission finds that an Independent Medical Evaluation is \nreasonable in accordance with Ark. Code Ann. §11-9-511(a)(Repl. 2012).     \nI.  HISTORY \n The parties stipulated that Margaret A. Freeman, now age 61, \n“sustained an admittedly compensable injury to her left ankle, left foot, left \nleg, and right knee” on June 15, 2022.  According to the record, Ms. \n\nFREEMAN - H204642  2\n  \n \n \nFreeman treated at CHRISTUS Health Ark-La-Tex on June 15, 2022:  “59-\nyear-old female patient presents emergency department for complaints of \nleft ankle pain after falling today.  The patient fell down some stairs today \nresulting in her left ankle injury.”  Physical examination showed “Moderate \nabrasion to the right lateral shin, Other – Limited range of motion to the left \nankle with joint effusion and moderate ecchymosis; deformity to the left \nmedial ankle with significant tenderness and tenting of the skin[.]”   \n An x-ray of the claimant’s left ankle was taken on June 15, 2022 with \nthe impression, “Post reduction left ankle x-ray independently reviewed and \ninterpreted by me demonstrates trimalleolar fracture in good alignment with \nsignificant improvement from prereduction x-ray.”   \n Kellie L. Flaherty, PA provided a Differential Diagnosis on June 15, \n2022: \n59-year-old female presents to the ED by EMS after fall down \na couple of steps at the bottom of the stairs as detailed per \nHPI.  She denies other injury besides abrasion to the lateral \nright ankle and shin, and more significantly the deformed and \ntenting painful and swollen left ankle.  Upon initial evaluation \nthere are 2 abrasions/small lacerations overlying the \ndeformed joint however there is not definite communication \nwith the underlying fracture.  Patient’s x-ray reveals a \ndisplaced trimalleolar fracture dislocation of the left ankle.  \nOrthopedics was consulted and recommended reduction and \nsplint placement in the ED followed by CT for further \nevaluation of the extent of fracture.  Procedures documented \nas above.  I assisted my ED attending Dr. Phillips in \nperforming these procedures.  At the time of reduction this \nwas confirmed to be an open fracture, grade 1.... \n \n\nFREEMAN - H204642  3\n  \n \n \n Dr. Howard R. Brown performed surgery on June 16, 2022:  “Left \nankle irrigation and debridement with open reduction internal fixation of \ntrimalleolar fracture including a posterior fragment.”  The post-operative \ndiagnosis was “Open fracture ankle, trimalleolar....The patient will be \nnonweightbearing for at least 6 weeks, she will need at least 24-48 hours of \nIV antibiotics, and then p.o. antibiotics when she goes home with Keflex \nand Bactrim DS.  As stated she will be nonweightbearing, and in a fracture \nboot.”   \n The claimant was discharged from CHRISTUS Health Ark-La-Tex on \nJune 20, 2022.  The diagnosis was “(1)  Trimalleolar fracture of left ankle.”  \nThe parties stipulated that the respondents “paid medical and indemnity \nbenefits.” \n Dr. Brown reported on September 7, 2022, “RADIOGRAPHIC:  \nThree views of the ankle reveal hardware in place.  Medial malleolus and \nposterior malleolus are healing.  Lateral malleolus is also healing.  Ankle \nmortise is intact.  There is minor micro subcortical cyst formation consistent \nwith RSD....The patient is improving, but slowly.”   \n Dr. Richard B. Sharp examined the claimant on February 23, 2023 \nand assessed “Causalgia of left lower limb....Continue therapy.  Continue \nmedications.”  The claimant continued to follow up with Dr. Sharp.     \n\nFREEMAN - H204642  4\n  \n \n \n The claimant began treating with Dr. Gregory Ardoin on April 3, \n2023: \nMargaret Freeman is a 60 year old female who presents to \ndiscuss concerns about their Ankle, that began on \n06/15/2022. \nPatient fractured her ankle at work after falling down some \nstairs.  She had a grade 1 open fracture....Patient had a \nclosed reduction in the emergency department and then had \nsurgery on 6/16/2022 for debridement of the open fracture \nand open reduction internal fixation of the trimalleolar ankle \nfracture.... \nShe had a fairly routine postoperative course however she \ndeveloped complex regional pain syndrome (CRPS).  Patient \nhas gone on to her extensive physical therapy....Any \nsensitivity below the knee touch to the leg causes severe \npain.  Burning type pain in her foot.... \nFoot and ankle exam:  Left foot and ankle exam reveals \naltered color purpleish reddish leg from mid leg all the way \ndown to the toes.... \nImpression:  1.  Left ankle trimalleolar fracture dislocation \ngrade 1 open status post debridement, open reduction and \ninternal fixation. \n2.  Resultant CPRS not controlled on Lyrica alone....My \nrecommendation is to transition care over to pain \nmanagement specialists (sic) that specializes in RSD and \nwilling to perform sympathetic blocks for this.  I think she \nneeds trial of 3 to 6 injections.  I will make a referral to Dr. \nWalker or Dr. Frankowski and hopefully they will be able to \nhelp this patient get the CRPS under control.  Physical \ntherapy for CRPS should also be continued.... \n \n The claimant began treating with Dr. Gary Frankowski on April 20, \n2023.  Dr. Frankowski assessed “1.  60-year-old patient with history of left \nfoot and ankle injury along with reconstructive stabilization surgery.  Patient \nwith neuropathic chronic pain with tactile allodynia.  Does not meet criteria \nfor Budapest criteria for CRPS.  But definitely meets criteria for neuropathic \n\nFREEMAN - H204642  5\n  \n \n \npain.”  Dr. Frankowski recommended conservative management, \nmedication, and a TENS unit.   \n An Electrodiagnostic Report was done on July 18, 2023 with the \nfollowing impression: \nThis is an abnormal study.  There is electrophysiologic \nevidence of \n1.  Mild Lt. superficial peroneal nerve entrapment/neuropathy \nat or about ankle affecting the myelin and axons of the \nsensory nerve fibers. \n2.  Pt also have demyelinating Lt. sural nerve \nentrapment/neuropathy at or about ankle. \n3.  There is no additional focal entrapment or radiculopathic \nprocess.  Patient has weakness with all the muscles tested \nbut will benefit with continuation of therapy.   \n \n The claimant participated in a Functional Capacity Evaluation on \nJanuary 10, 2024:  “The results of this evaluation indicate that a reliable \neffort was put forth, with 51 of 51 consistency measures within expected \nlimits....Ms. Freeman completed functional testing on this date with reliable \nresults.  Overall, Ms. Freeman demonstrated the ability to perform work in \nthe LIGHT classification of work[.]”   \n Dr. Ardoin reported on January 18, 2024: \nMargaret Freeman is a 61 year old female.  Since their last \nvisit, patient reports feeling Worse.   \nPatient presents today with chief complaint of left foot burning \npain coolness numbness weakness.  She had ankle fracture \nrepair back in June 2022 work-related injury.  Patient had a \nnerve block that lasted for 2 weeks.  She now has nerve injury \nneuralgia nerve pain syndrome associated with it.  Is not really \ngetting better.  She takes medications prescribed by Dr. \nFrankowski.   \n\nFREEMAN - H204642  6\n  \n \n \nShe uses a dorsiflexion assist AFO brace.  It wakes her up at \nnight burns and tingles.... \nFoot and ankle exam:  Steppage gait on the left.  Patient has \nweakness to plantarflexion and dorsiflexion.  She is able to \nplantarflex and dorsiflex however but she has about 3-4 out of \n5 strength in dorsiflexion and plantarflexion.  The foot is cool \non the left however she has great palpable pulses.  She has \ncalf atrophy on the left as compared to the right of about 2 cm \ndifference in mid circumference calf.... \nImpression:  Left ankle fracture with nerve injury.  Likely from \nnerve block with resultant neuritis and foot drop weakness \nboth anterior and posterior muscles.   \nPlan:  Patient is at MMI in regards to orthopedic manages his \nnerve pain (sic).  I do not see any surgery that I can do to help \nher with that.  She needs to continue treatment with the pain \nmanagement physician Dr. Frankowski.... \nPrimary impairment will be given according to the Guides to \nthe Evaluation of Permanent Impairment fourth edition, fourth \nedition page 83 table 62.  Ankle joint space narrowing of less \nthan 3 mm cartilage interval 6% whole person 15% left lower \nextremity and 21% left foot.   \n \n The parties stipulated that “the claimant’s treating physician, Dr. \nArdoin, opined she reached maximum medical improvement (MMI) on \nJanuary 18, 2024, and assigned her a permanent anatomical impairment \nrating of 15% to the left lower extremity, which the respondents have \naccepted and are paying.” \n The record indicates that the claimant followed up with Dr. \nFrankowski on January 18, 2024.  Dr. Frankowski refilled the claimant’s \nmedication, and he also ordered a mental health evaluation with regard to \nthe claimant’s chronic pain.  Dr. Frankowski planned, “We also presented to \nour patient and her husband about using a spinal cord stimulator to help \n\nFREEMAN - H204642  7\n  \n \n \nwith [her] chronic neuropathic pain.  We discussed the trial to see how \nmuch it helps and then the consideration of permanent device.  It was \ndescribed as kind of a pacemaker for the spinal cord in regards to \nprocessing this chronic pain.”     \n A pre-hearing order was filed on May 3, 2024.  According to the pre-\nhearing order, the claimant contended the following:  “The claimant \ncontends she was involved in an admittedly compensable work accident on \nJune 15, 2022, in which she sustained injuries to multiple body parts, \nincluding her left foot, left ankle, left leg, and right knee.  Thereafter, Dr. \nArdoin performed surgery on her left ankle, and the claimant contends she \nnow suffers from residual, documented nerve damage, neuralgia, neuritis, \nleft lower leg weakness, left foot drop, possible complex regional pain \nsyndrome, and neuropathic pain.  Dr. Gary Frankowski, a pain \nmanagement specialist the claimant contends the respondents chose, has \nopined she requires additional medical treatment in the form of a spinal \ncord stimulator.  The claimant contends Dr. Frankowski’s recommendation \nconstitutes reasonably necessary medical care related to her compensable \ninjuries and, therefore, the respondents should be required to provide it.  \nThe claimant states she has a scheduled injury.  She contends the \nrespondents’ chosen physician has recommended additional medical care \nintended to improve her condition, and that she is not currently working as \n\nFREEMAN - H204642  8\n  \n \n \nshe is unable to work due to her compensable injuries.  The claimant further \ncontends that since the respondents have to date directed all her medical \ncare, on these facts compelling her to see yet another doctor for an IME is \nnot reasonably necessary and, therefore, the respondents’ request should \nbe denied.  The claimant contends her attorney is entitled to payment of a \nstatutory fee on any and all controverted indemnity benefits; and she \nrespectfully reserves the right to amend and/or otherwise alter the above \ncontentions as discovery progresses.  All other potential issues except the \nthreshold issue concerning the respondents’ entitlement to an IME are \nexpressly reserved for litigation at a later date including, but certainly not \nlimited to, issues involving permanent impairment.  The claimant also \nspecifically reserves the issue of controversion, as well as any and all \nissues not specifically addressed herein, for future determination and/or \nlitigation.  This is a claim for additional compensation, and the claimant \nhereby renews her request for an award of any and all benefits to which she \nmay be entitled pursuant to the Arkansas Workers’ Compensation Act (the \nAct).”   \n The respondents contended, “The respondents contend that Dr. \nFrankowski is continuing to treat the claimant for pain management, and he \nhas ‘suggested’ a spinal cord stimulator ‘may’ be appropriate.  The \nrespondents are simply requesting an IME , which they contend is in \n\nFREEMAN - H204642  9\n  \n \n \nessence a second opinion in order to determine whether this invasive \nsurgical recommendation is appropriate for treatment of the claimant’s \ncompensable injuries.  The respondents further contend the ALJ has the \nstatutory authority to grant their motion for an IME/second opinion, \nespecially based on these facts given the invasive nature and arguably \nineffective clinical efficacy of Dr. Frankowski’s recommendation herein.  The \nrespondents contend they have not controverted any medical or indemnity \nbenefits in this claim to date, and specifically reserve this and any and all \nother issues not specifically litigated herein for further determination and/or \nlitigation.”   \n The parties agreed to litigate the following issues: \n1.  Whether the respondents are entitled to an IME concerning \nwhether the spinal cord stimulator Dr. Frankowski has \nrecommended is related to, and constitutes reasonably \nnecessary treatment for, her compensable injuries.   \n2.  The parties specifically reserve any and all other issues for \nfuture determination and/or litigation.   \n \n The claimant followed up with Dr. Frankowski on May 7, 2024:  \n“Patient with severe neuropathic pain left lower extremity.  Patient is having \nacute flareup over the past few weeks the pain is intensified mainly at night \ncausing her to be nauseated feel like she has to throw up.  She is also \nhaving more right-sided leg pain she has to rely on the right leg when she is \nambulatory and she uses a cane.  We discussed about potentially \n\nFREEMAN - H204642  10\n  \n \n \nperforming a spinal cord stimulator but that was denied by the insurance \nadjuster....She rates her pain as 8 out of 10 on the pain severity scale.”   \nAn administrative law judge filed an opinion on July 15, 2024.  The \nadministrative law judge found, among other things, that the respondents \nwere entitled to an Independent Medical Evaluation to be performed by Dr. \nCarlos Roman.  The claimant appeals to the Full Commission. \nII.  ADJUDICATION \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).   \n In the present matter, the claimant contends that Dr. Frankowski’s \nrecommendation of a spinal cord stimulator constitutes reasonably \nnecessary medical treatment.  The administrative law judge concluded in \npart: \nI do not find the fact Dr. Frankowski is the physician who has \nrecommended the surgical insertion of a spinal cord stimulator \n\nFREEMAN - H204642  11\n  \n \n \ninto the claimant’s body – apparently as a last-ditch, “hail-\nMary” effort to treat the claimant’s continued complaints of \npain and weakness based on a rather vague diagnosis \napparently devoid of sufficient objective medical evidence – is \ndispositive on these facts.   \n \n The Full Commission notes that no treating physician of record, \nincluding Dr. Frankowski, has described any portion of the claimant’s \nmedical treatment following the compensable injury to be a “hail-Mary \neffort.”  It is also well-settled that an employee who has sustained a \ncompensable injury is not required to offer objective medical evidence to \nprove she is entitled to additional benefits.  Ark. Health Ctr. v. Burnett, 2018 \nArk. App. 427, 558 S.W.3d 408.  See also Chamber Door Indus., Inc. v. \nGraham, 59 Ark. App. 224, 956 S.W.2d 196 (1997); Ark. Dep’t of Cmty. \nCorr. v. Moore, 2018 Ark. App. 60.  Moreover, the Full Commission notes \nfrom the record that there were many prominent objective medical findings \ndemonstrated following the compensable injury.  These conspicuous \nobjective medical findings included joint effusion, ecchymosis, tenting of the \nskin, trimalleolar fracture, subcortical cyst formation consistent with Reflex \nSympathetic Dystrophy, purple and red coloring in the claimant’s lower left \nleg, an abnormal Electrodiagnostic Study, and cooling and atrophy in the \nclaimant’s left leg. \n Ark. Code Ann. §11-9-511(Repl. 2012) provides, in pertinent part: \n(a)  An injured employee claiming to be entitled to \ncompensation shall submit to such physical examination and \n\nFREEMAN - H204642  12\n  \n \n \ntreatment by another qualified physician, designated or \napproved by the Workers’ Compensation Commission, as the \ncommission may require from time to time if reasonable and \nnecessary.   \n \n In the present matter, the respondents request that the claimant \nparticipate in an Independent Medical Evaluation in accordance with Ark. \nCode Ann. §11-9-511(Repl. 2012) and Ark. Code Ann. §11-9-811(Repl. \n2012).  We find that the respondents’ request is reasonable in accordance \nwith Ark. Code Ann. §11-9-511(a)(Repl. 2012).  We direct the claimant to \nparticipate in an Independent Medical Evaluation to be performed by Dr. J. \nCarlos Roman.  The place of examination shall be reasonably convenient \nfor the claimant pursuant to Ark. Code Ann. §11-9-511(b)(Repl. 2012).  The \nFull Commission finds that the Independent Medical Evaluation is not \ncontrary to the Court of Appeals’ holding in Burkett v. Exxon Tiger Mart, \n2009 Ark. App. 93, 304 S.W.3d 2, because the parties have not yet \n“litigated their case.” \n The Full Commission therefore directs the claimant to present for an \nIndependent Medical Evaluation to be performed by Dr. J. Carlos Roman in \naccordance with Ark. Code Ann. §11-9-511(Repl. 2012).     \n  \n \n \n \n\nFREEMAN - H204642  13\n  \n \n \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":19040,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204642 MARGARET A. FREEMAN, EMPLOYEE CLAIMANT MILLER COUNTY JUDGE, EMPLOYER RESPONDENT ASS’N OF ARKANSAS COUNTIES/ AAC RISK MG’T SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["ankle","knee","fracture","back"],"fetchedAt":"2026-05-19T22:29:44.809Z"},{"id":"alj-H201515-2024-11-13","awccNumber":"H201515","decisionDate":"2024-11-13","decisionYear":2024,"opinionType":"alj","claimantName":"Jackie Johnson","employerName":"Ar Department Of Transportation","title":"JOHNSON VS. AR DEPARTMENT OF TRANSPORTATION AWCC# H201515 November 13, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JOHNSON_JACKIE_H201515_20241113.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_JACKIE_H201515_20241113.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H201515 \n \nJACKIE JOHNSON, Employee                                                                       CLAIMANT \n \nAR DEPARTMENT OF TRANSPORTATION, Employer                         RESPONDENT                                                                       \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier                                    RESPONDENT                                                                \n \n \n \n OPINION FILED NOVEMBER 13, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Harrison, \nBoone County, Arkansas. \n \nClaimant represented by F. S. “RICK” SPENCER, Attorney, Mountain Home, Arkansas. \n \nRespondents represented by ROBERT MONTGOMERY, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On October 10, 2024, the above captioned claim came on for hearing at Harrison, \nArkansas.  A pre-hearing conference was conducted on May 8, 2024, and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.       The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The claimant sustained a compensable injury to his low back on February \n10, 2022. \n 3.            Claimant  was  earning  an  average  weekly  wage  of  $650.58  which  would \nentitle him to compensation at the weekly rates of $434.00 for total disability benefits and \n\nJohnson – H201515 \n2 \n \n$326.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.      Claimant’s entitlement to additional medical treatment in the form of pain  \nmanagement by Dr. Matthew McNelley at Interventional Pain Management Associates. \n2.       Claimant’s entitlement to permanent partial disability benefits based on a  \npermanent impairment. \n3.         Attorney’s fee on benefits paid subsequent to April 2022. \nAt the time of the hearing claimant reserved the issues relating to permanent partial  \ndisability benefits and an attorney fee; leaving as the only issue claimant’s entitlement to \nadditional medical treatment. \n The claimant contends he is entitled to continual medical treatment by Dr. Matthew \nMcNeeley for the management of his pain related to his compensable lower back injury. \nThe respondents contend they accepted claimant’s February 10, 2022 low back \ninjury as compensable and appropriate benefits have been paid.  Respondents contend \nthat the claimant has received all reasonably necessary medical treatment to which he \nmay be entitled relative to his compensable injury.  Claimant was referred to Dr. McNelley \nat  Interventional  Pain  Management  Associates  and  a  lumbar  epidural  steroid  injection \nwas authorized by respondents on September 12, 2022.  Respondents authorized and \npaid   for all   reasonably   necessary   medical   treatment   through   October   9,   2023.  \nRespondents  were  at  that  point  notified  that  claimant  experienced  multiple  different \nintervening  events,  namely,  he  fell  off  the  roof  of  a  house  while  on  paternity  leave, \nreported falling from a ladder the next week, and injured himself while picking up an air \nconditioner.  The medical treatment the claimant now seeks is not related to the February \n\nJohnson – H201515 \n3 \n \n10, 2022 compensable injury, but rather to the various intervening events he experienced.   \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \nconducted on May 8, 2024, and contained in a pre-hearing order filed that same date are \nhereby accepted as fact. \n 2.     Claimant has failed to meet his burden of proving by a preponderance of \nthe evidence that he is entitled to additional medical treatment for his compensable injury. \n \n FACTUAL BACKGROUND \n Claimant is a 51-year-old man who began working for respondent in October 2017, \ndriving a tractor on a mowing crew.  The parties have stipulated that  claimant suffered a \ncompensable injury to his low back on February 10, 2022, when he felt back pain while \nhe was turning with a 5-gallon bucket of water while up on a salt brine tank.   \n Claimant  eventually  came  under  the  care  of  Dr.  Allan  Gocio,  a neurosurgeon  in \nMountain  Home.    In  a  report  dated  April  20,  2022,  Dr.  Gocio  stated  that  imaging  of \nclaimant’s  low  back  revealed  disc  bulging  with  degenerative  disc  disease;  disc  space \nnarrowing at L3-4 and L4-5; and mild stenosis.  He also noted that claimant’s EMG/NCV \nstudies were normal.  He stated: \n  Patient is not likely to benefit from surgical treatment. \n\nJohnson – H201515 \n \n4 \n \n Dr.   Gocio   recommended   continued   therapy   and   referred   claimant   to   pain \nmanagement.  He also instructed the claimant to return as needed.   Finally, Dr. Gocio \nindicated  that  claimant  could  return to  work as  of April  20,  2022, with work  restrictions \nand  opined  that  claimant  had  a  0%  impairment  rating.    Dr.  Gocio  reiterated  the  0% \nimpairment rating in a report dated May 12, 2022.   \n In  his  next  report  dated  June  13,  2022,  Dr.  Gocio  stated  that  claimant  had \nundergone  a  functional  capacities  evaluation  with  51/52  consistency  measures  within \nexpected limits and that claimant had been placed in the medium work classification.  Dr. \nGocio stated that claimant could return to work within the restrictions set out in the May \n23, 2022 FCE.   \n Following  this  release  by  Dr.  Gocio,  claimant  did  return  to  work for  respondent \nperforming  his  prior  job.    He  testified  that  he  had  help  from  co-employees  when \nperforming  heavier  jobs  at  work  and  that  he would  be hurting when  he  returned home \nafter a day from work.  Claimant continued to work for respondent until he took off work \nfor paternity leave on July 12, 2023, which he believes lasted twelve weeks.  Claimant \ntestified that he returned to work for respondent after the paternity leave ended in October \n2023.   \n On October 9, 2023, claimant sought medical treatment from the emergency room \nat North Arkansas Regional Medical Center for complaints of back, knee, and shoulder \npain  with  an  onset  of  the  day  before  after  falling  nine  feet  from the roof of  his  house.  \nClaimant  was  diagnosed  with  acute  low  back  pain  and  instructed  to  follow up  with  his \ndoctor for a possible MRI scan if his symptoms did not improve.  A CT scan of that same \ndate was interpreted as showing no acute fracture. \n\nJohnson – H201515 \n \n5 \n \n On October 12, 2023, claimant was again seen at the emergency room at Baxter \nMedical Center by Dr. Mark West.  At that time claimant attributed his back pain to the \ninjury in February 2022 with no mention of the fall from the roof. \n On October 13, 2023, claimant was seen by Asa Smith, APRN at Interventional \nPain Management with reports of pain in his low back and into his left leg.  The report \nstates that claimant indicated that his current medications were not effective since falling \noff the roof a week ago.  Finally, the report indicates that claimant had seen Dr. Gocio in \nthe past and it was recommended that claimant return to Dr. Gocio. \n On   December   14,   2023,   claimant   was   again   seen   at   Interventional   Pain \nManagement by Dr. Michael Munn, APRN.  Claimant indicated that he had a worsening \nof his pain in his low back after lifting an air conditioner.  Claimant was given medication \nand again instructed to return to Dr. Gocio. \n Finally, claimant was seen by Kimberly Cudworth, APRN at Cross Roads Family \nClinic  on  August  19,  2024,  where  he  was diagnosed with  lumbar  degenerative  disc \ndisease;  lumbar  back  pain;  and  weakness  of  the  left  lower  extremity.    Claimant  was \nprescribed  medication  and  again  referred  back  to  Dr.  Gocio  and  to  Dr.  McNelley at \nInterventional Pain Management. \n Respondent  initially  accepted  liability  for  additional  medical  treatment,  but  upon \nreceiving  the  reports  regarding  falling  from  a  roof  and  lifting  an  air  conditioner  denied \npayment  of  additional  medical.    Claimant  has  filed  this  claim  requesting  payment  of \nadditional medical treatment from Dr. McNelley at Interventional Pain Management. \n \n  \n\nJohnson – H201515 \n \n6 \n \nADJUDICATION \n Claimant contends  that  he  is  entitled  to  additional  medical  treatment  for  his \ncompensable low back injury.  Claimant has the burden of proving by a preponderance \nof  the  evidence  that  he  is  entitled  to  additional  medical  treatment.   Dalton  v.  Allen \nEngineering Company, 66 Ark. App. 201, 989 S.W. 2d 543 (1999).   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet his burden of proof. \n As previously noted, after claimant’s injury on February 10, 2022, he came under \nthe  care of  Dr.  Allan  Gocio who treated  claimant  with  physical  therapy  and  pain \nmanagement.  He also released claimant to return to work with permanent restrictions as \nof June 13, 2022.  Claimant did return to work for respondent and continued working for \nrespondent until he took paternity leave on July 12, 2023, more than one year later.  He \ntestified that this leave lasted approximately twelve weeks and that he returned to work \nfor respondent on an unknown date in October 2023.  There are no medical records in \nevidence regarding any medical treatment for the compensable injury during this more \nthan one-year period of time.   \n The next medical record after claimant was released to return to work by Dr. Gocio \non June 13, 2022 is dated October 9, 2023 from the emergency room of North Arkansas \nRegional  Medical  Center.    At  that  time,  claimant  was  complaining  of  back, knee,  and \nshoulder pain.  The emergency room report states the following: \n  50 year old male presents complaining of low back, left \n  shoulder and wrist pain.  Patient complains of pain shooting \n  down his left leg.  No loss of bowel or bladder function.  No \n  leg weakness. \n  Occurred:  yesterday. \n\nJohnson – H201515 \n \n7 \n \n \n  Severity:  moderate \n  Injuries/Pain location:  back \n  Context:  slipped, OTHER (fell about 9 ft from the  \n  roof) \n \n \n The emergency room report does not indicate that claimant attributed his low back \ncomplaints  to  his  prior  work-related  injury  as  opposed  to  the  fall  from  the  roof  the  day \nbefore.  At the hearing claimant contended the fall from the roof did not worsen his back \npain; that he simply went to the emergency room to make sure he had not worsened his \nback pain; and that he fell because his legs were weak due to his work injury.  I find no \nmerit to these contentions.  As previously noted, claimant did not mention the prior work-\nrelated injury at the emergency room; instead, he gave a history of back, wrist and left \nshoulder pain after falling nine feet from the roof of his house.  Furthermore, there is no \nnotation in the medical record that claimant attributed his falling to weakness in his leg \ncaused by his prior work-related injury. \n There  is  also  a  medical  report  from  Asa  Smith,  APRN  at  Interventional  Pain \nManagement,  dated  October  13,  2023.  The  report  clearly  indicates  that  claimant  has \nbeen seen at the clinic before that date; however, none of the prior medical reports were \nsubmitted into evidence or the dates that claimant previously received treatment.  That \nreport also indicates: \n  This is a very pleasant patient who returns to the clinic \n  for follow-up on chronic lumbar and radicular leg pain. \n  He complains of some worsening after a fall off a roof \n  about a week ago.  (Emphasis added.) \n \n \n In  short,  claimant  returned  to  work  for  respondent  in  June  2022  and  continued \n\nJohnson – H201515 \n \n8 \n \nworking there until he took paternity leave in July 2023.   There are no medical records \nfor treatment of  the compensable  injury  during  this  period  of  time.    The  next  medical \nrecord is from October 2023 when claimant sought medical treatment for back complaints \nafter falling nine feet off of  his roof at home. \n The medical reports also contain a history of a second incident.  In a report dated \nDecember 14, 2023, Michael Munn, APRN, notes: \n  Patient states he was lifting a small air conditioner \n  two days ago and when he twisted he experienced \n  immediate worsening pain in his low back with \n  weakness in his bilateral legs. \n \n      *** \n  Very pleasant patient returns in follow-up of his low \n  back pain worsened since falling off a roof in October, \n  now with reinjury 2 days ago.  (Emphasis added.) \n \n \n Further contusing in this claim is claimant’s testimony that he was sent to see Dr. \nKnox by respondent and that Dr. Knox is the physician that referred him to Interventional \nPain  Clinic.    The  documentary  evidence  contains  no  medical  reports  from  Dr.  Knox.  \nFurthermore,  the  reports  from  Interventional  Pain  Clinic  indicate  that  claimant  was \nreferred to the claimant by Dr. Gocio, not Dr. Knox.  In fact, the clinic recommended that \nclaimant return to see Dr. Gocio. \n In  summary,  claimant  has  the  burden  of  proving  by  a  preponderance  of  the \nevidence  that he  is  entitled  to  additional  medical  treatment  for  his compensable  injury.  \nHere, claimant returned to work for respondent and continued working there for over a \nyear until he took paternity leave.  Shortly after returning from paternity leave, claimant \nsought medical treatment from the emergency room for back pain resulting from a nine-\n\nJohnson – H201515 \n \n9 \n \nfoot fall from his roof at home.  Based upon the evidence presented, I find that claimant \nhas failed to prove by a preponderance of the evidence that he is entitled to additional \nmedical treatment for his compensable injury. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that he is entitled \nto additional medical treatment for his compensable low back injury.  Therefore, his claim \nfor additional compensation benefits is hereby denied and dismissed. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $449.50. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":15061,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201515 JACKIE JOHNSON, Employee CLAIMANT AR DEPARTMENT OF TRANSPORTATION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED NOVEMBER 13, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Harrison, Boone ...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:3"],"injuryKeywords":["back","lumbar","knee","shoulder","fracture","wrist"],"fetchedAt":"2026-05-19T22:46:23.860Z"},{"id":"alj-G907965-2024-11-12","awccNumber":"G907965","decisionDate":"2024-11-12","decisionYear":2024,"opinionType":"alj","claimantName":"John Munn","employerName":"Ark. Dept. Of Corr","title":"MUNN VS. ARK. DEPT. OF CORR. AWCC# G907965 November 12, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Munn_John_G907965_20241112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Munn_John_G907965_20241112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G907965 \n \n \nJOHN MUNN, EMPLOYEE CLAIMANT \n \nARK. DEPT. OF CORR., \n EMPLOYER  RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIV., \n CARRIER/TPA RESPONDENT \n \n \nOPINION FILED NOVEMBER 12, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on  November  8, \n2024, in Forrest City, St. Francis County, Arkansas. \n \nClaimant (not appearing) represented by Mr. Kenneth A. Olsen, Attorney at Law, \nBryant, Arkansas (excused from participation). \n \nRespondents  represented  by Mr. Charles  H.  McLemore,  Attorney  at  Law,  Little \nRock, Arkansas. \n \n On November  8,  2024,  the  above-captioned  claim  was  heard  in Forrest \nCity,  Arkansas.    A  prehearing  conference  took  place  on September  16,  2024.  \nThe Prehearing Order   entered on   September   17,   2024, pursuant   to   the \nconference was admitted without objection as Commission Exhibit 1. \nStipulations \n The stipulations set forth in Commission Exhibit 1 are the following, which \nI accept: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n\nMUNN – G907965 \n2 \n \n2. The   employee/employer/carrier   relationship   existed   among   the \nparties on July 30, 2019, when Claimant sustained a compensable \ninjury to his eyes by specific incident. \n3. Respondents  accepted  the  above  injury  as  a  medical-only  one; \nhowever, they have denied that he suffered any other compensable \ninjuries as a result of the above-described incident. \n4. Claimant’s  average  weekly  wage  of  $1,015.58  entitles  him  to \ncompensation rates of $677.00/$508.00. \nIssues \n The following issues were to have been litigated: \n1. Whether  this  claim  should  be  dismissed  for  want  of  prosecution \nunder AWCC R. 099.13. \n2. Whether  Claimant  sustained  compensable  injuries  to his  lumbar \nspine and left shoulder by specific incident. \n3. Whether Claimant is entitled to reasonable and necessary medical \ntreatment of his alleged compensable injuries. \n4. Whether Claimant is entitled to temporary total disability benefits. \n5. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n\nMUNN – G907965 \n3 \n \n Claimant: \n1. Claimant contends  that  he sustained  a  shoulder  and  lumbar  spine \ninjury arising from and in the course of his employment on or about \nJuly 30, 2019, and is entitled to medical and indemnity benefits and \nattorney’s fees. \nRespondents: \n1. Respondents   contend   that   Claimant   has   a   history   of   back \nproblems.  He reported an injury on July 30, 2019, involving pepper \nspray  in  his  eye  after  an  incident  with  an  inmate.    Respondents \naccepted  this  as  a  medical-only  claim.    However,  Claimant  sought \nno  treatment,  returned  to  work,  and  made  no  further  complaint \nabout his shoulder or back until November 13, 2019. \n2. A hearing was scheduled to take place on August 12, 2020.  After \nthat  hearing  was  cancelled  at  Claimant’s  request,  the  file  was \nreturned to the Commission’s general files on September 9, 2020, \nand  there  was  no  activity  on  the  claim  until  Respondent  filed  a \nMotion to Dismiss for Want of Prosecution on December 14, 2021.  \nIn  response  to  this  motion,  Claimant  objected  and  demanded  a \nhearing.  This hearing, set for June 10, 2022, was cancelled at his \nrequest; and the file was once again returned to the Commission’s \ngeneral files.  Respondents filed another dismissal motion on June \n3, 2024, to which Claimant has also objected. \n\nMUNN – G907965 \n4 \n \n3. Respondents  contend  that  Claimant  cannot  sustain  his  burden  of \nproving  his  entitlement  to  medical  treatment  that  is  reasonably \nnecessary  for  or  causally  related  to  a  compensable  injury  to  his \nback  or  shoulder  and  arising  out  of  and  in  the  course  of  his \nemployment on July 30, 2019. \n4. In  the  event  that  Claimant  is  awarded  temporary  total  disability \nbenefits, he cannot be entitled to them in excess of unemployment \nbenefits that he received for that same week, per Ark. Code Ann. § \n11-9-506 (Repl. 2012). \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  I  hereby  make  the  following \nFindings  of Fact  and Conclusions  of Law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  stipulations  set  forth  above  are  reasonable  and  are  hereby \naccepted. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. This claim is hereby dismissed without prejudice. \n5. Because of the above findings/conclusions, the remaining issues—\nwhether Claimant   sustained   compensable   injuries   to   his   left \n\nMUNN – G907965 \n5 \n \nshoulder  and  lumbar  spine, whether he is  entitled  to  reasonable \nand  necessary  treatment  of these alleged  injuries,  whether  he  is \nentitled  to  temporary  total  disability  benefits,  and  whether  he  is \nentitled to a controverted attorney’s fee—are  moot  and  will  not  be \naddressed. \nCASE IN CHIEF \nSummary of Evidence \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into \nevidence  in  this  case  were  the  following:    Commission Exhibit 2, email  and \nregular  correspondence  dated  November  6,  2024,  consisting  of  two  pages;  and \nRespondents’ Exhibit 2, pleadings and correspondence, consisting  of one  index \npage and 17 numbered pages thereafter. \nAdjudication \nA. Motion to Dismiss \n On  November  6,  2024,  Claimant’s  counsel  sent  me  and  Respondents’ \ncounsel a letter that reads in pertinent part: \nAs  discussed  earlier  today,  I  received a  phone  call  from  Mr.  Munn \nduring  which  he  advised  that  he  did  not  intend  to  appear  at  the \nhearing scheduled in this claim for 12:30 p.m. on Friday, November \n8,  2024,  and  expressed  that  I  should  go  ahead  with  the  dismissal \n[motion]  as  filed  by  [Respondents’  counsel].    As  such,  I  do  not \nexpect  him  to  be  present  on  Friday,  and  seek  to  be  excused  as \nwell. \n\nMUNN – G907965 \n6 \n \n As  expected,  Claimant  failed  to  appear  at  the  hearing  at  the  appointed \ntime.   Based  on  this,  Respondents  renewed  their  request  that  the  claim  be \ndismissed under AWCC R. 099.13, which reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaims—by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As demonstrated by the foregoing, Claimant without good cause failed to \nappear  at the  hearing.   The  evidence  thus establishes  that he has  failed  to \nprosecute his claim, and that reasonable notice of the proceeding was provided \nto  him.    Hence,  dismissal  of  the  instant  claim  is readily justified  under  Rule  13.  \nRespondents have met their burden of proof on this matter. \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n\nMUNN – G907965 \n7 \n \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal with prejudice.  Based on the \nforegoing, I concur and find that the dismissal of this claim should be and hereby \nis entered without prejudice. \nB. Remaining Issues \n Because of the above foregoing, the remaining issues—whether Claimant \nsustained compensable injuries to his left shoulder and lumbar spine, whether he \nis  entitled  to  reasonable  and  necessary  treatment  of  these  alleged  injuries, \nwhether  he  is  entitled  to  temporary  total  disability  benefits,  and  whether  he  is \nentitled to a controverted attorney’s fee—are moot and will not be addressed. \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":9193,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G907965 JOHN MUNN, EMPLOYEE CLAIMANT ARK. DEPT. OF CORR., EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIV., CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 12, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on November 8, 2024, in Forrest C...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["lumbar","shoulder","back"],"fetchedAt":"2026-05-19T22:46:17.459Z"},{"id":"alj-H301113-2024-11-12","awccNumber":"H301113","decisionDate":"2024-11-12","decisionYear":2024,"opinionType":"alj","claimantName":"Belinda Tye","employerName":"Fedex Ground Pk’g System, Inc","title":"TYE VS. FEDEX GROUND PK’G SYSTEM, INC. AWCC# H301113 November 12, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TYE_BELINDA_H301113_20241112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TYE_BELINDA_H301113_20241112.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301113 \n \n \nBELINDA TYE,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nFEDEX GROUND PK’G SYSTEM, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nFEDEX GROUND PK’G SYSTEM, INC./ \nSEDGWICK CLAIMAS MG’T SERVICES, INC. \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                     \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED NOVEMBER 12, 2024 \n \n \nHearing conducted on Tuesday, November 12, 2024, before the Arkansas Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, \nin Little Rock, Pulaski County, Arkansas. \n \nThe claimant, Ms. Belinda Tye, pro se, of Little Rock, Pulaski County, Arkansas, failed and/or \nrefused to appear at the hearing.  \n \nThe respondents were represented by the Honorable Zachary Ryburn, Matthews, The Ryburn \nLaw Firm, Little Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Tuesday, November 12, 2024, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n          The claimant herein previously was represented by counsel, the Honorable Laura Beth York \nof the Rainwater, Holt & Sexton law firm in Little Rock, Pulaski County, Arkansas. A prehearing \nteleconference was conducted on November 14, 2023, which resulted in a prehearing order filed \nNovember 21, 2023, scheduling a hearing date for Wednesday, February 21, 2024. The claimant \n\nBelinda Tye, AWCC No. H301113 \n2 \n \nhad failed and/or refused to timely respond to the respondents’ discovery requests, which resulted \nin the respondents filing a motion to compel discovery on June 11, 2024.  \n         On  July  26,  2024,  citing  an  inability  to  contact  and  communicate  with  the  claimant,  the \nclaimant’s attorney/Ms. York filed with the Commission a motion to withdraw as the claimant’s \ncounsel. By unanimous order  filed August  14,  2024, the  Full  Commission  granted Ms. York’s \nrequest  to  withdraw  as  the  claimant’s  counsel. Soon  thereafter, by motion filed  with  the \nCommission on September 13, 2024 (MTD), the  respondents requested this claim be dismissed \nfor lack of prosecution pursuant to the aforementioned statute and Commission rule.  \n        In compliance with the applicable law the claimant was provided due and legal notice of the \nrespondents’ MTD as well as the date, time, and location of the subject hearing. The claimant did \nnot respond in writing to the respondents’ motion in  any  way,  and she failed  and/or  refused  to \nappear at the subject hearing. \n       The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \n \nDISCUSSION \n       Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Repl.), as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion \nto dismiss. Rather than recite a detailed analysis of the record, suffice it to say the preponderance \nof  the  evidence  introduced  at  the  hearing and  contained  in  the  record conclusively  reveals  the \nclaimant has failed and/or refused to prosecute her claim at this time. \n\nBelinda Tye, AWCC No. H301113 \n3 \n \n     Therefore, after a thorough consideration of the facts, issues, the applicable law, representations \nof counsel, and other relevant matters of record, I hereby make the following: \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed due and legal notice of the respondents’ MTD without prejudice \nfiled September  13,  2024,  as  well  as notice  of the date, time,  and  place of  the  subject \nhearing, the claimant failed and/or refused to respond in any way to the respondents’ MTD, \nand she failed and/or refused to appear at the hearing. Therefore, the claimant is deemed to \nhave waived her right to a hearing on the respondents’ MTD. \n \n3. The respondents’ MTD without prejudice filed September 13, 2024, should be and hereby \nis GRANTED; and this claim is dismissed without prejudice to its refiling pursuant to the \ndeadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and Commission \nRule 099.13. \n \n      This Order shall not be construed to prohibit the claimant, her attorney, any attorney she may \nretain in the future, or anyone acting legally and on her behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n      If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n      IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \nMP/mp \n \n \n \n\nBelinda Tye, AWCC No. H301113 \n4","textLength":5746,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301113 BELINDA TYE, EMPLOYEE CLAIMANT FEDEX GROUND PK’G SYSTEM, INC., EMPLOYER RESPONDENT FEDEX GROUND PK’G SYSTEM, INC./ SEDGWICK CLAIMAS MG’T SERVICES, INC. CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED NOVEMBER 12, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:46:19.609Z"},{"id":"alj-H100964-2024-11-12","awccNumber":"H100964","decisionDate":"2024-11-12","decisionYear":2024,"opinionType":"alj","claimantName":"Justin Mitchell","employerName":"Parker Audi","title":"MITCHELL VS. PARKER AUDI AWCC# H100964 November 13, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MITCHELL_JUSTIN_H100964_20241112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MITCHELL_JUSTIN_H100964_20241112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H100964 \n \nJUSTIN P. MITCHELL, EMPLOYEE CLAIMANT \n \nPARKER AUDI, EMPLOYER  RESPONDENT \n \nCENTRAL ARKANSAS AUTO DEALERS, SIF,  \nCARRIER                                                                                                                RESPONDENT \n                                                     \nRISK MANAGEMENT RESOURCES,        \nTHIRD PARTY ADMINISTRATOR                                                          RESPONDENT  \n  \n \nOPINION FILED NOVEMBER 12, 2024 \n \nA hearing was held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in Pulaski \nCounty, Little Rocks, Arkansas. \n \nClaimant represented by the Honorable Laura Beth York, Attorney at Law, Little Rock, Arkansas.    \n \nRespondents represented  by  the  Honorable Melissa  Wood, Attorney at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  claim  on August 14,  2024, in Pulaski County, \nArkansas.   Following  a  Prehearing  Telephone  Conference with  the  parties on  June 12,  2024,  a \nPrehearing Order was entered in this case on that same day.  \nStipulations \nThe parties  submitted  the following jointly  proposed stipulations either  pursuant to  the \nPrehearing Order, or at the start and/or during the hearing.  I hereby accept the following proposed \nstipulations as fact:  \n 1.  The Arkansas Workers’ Compensation Commission has jurisdiction of the within claim. \n\nMitchell- H100964 \n \n2 \n 2.    The  employee-employer-carrier  relationship  existed on  January  14,  2021,  when  the \nClaimant sustained a compensable injury to his right shoulder while in the course and scope of his \nemployment with the respondent-employer, Parker Audi.  \n 3.  The Claimant was released at maximum medical improvement/MMI by Dr. Lawerance \nO’Malley on October 2, 2023. \n4.  The Claimant was earning sufficient wages ($1,193.27) to entitle him to the maximum \ncompensation rates for a 2021 injury.  These weekly benefit amounts are $736.00 for temporary \ntotal disability (TTD) benefits, and $552.00 for permanent partial disability (PPD) benefits.  \n5.  All issues not litigated herein are reserved under the Arkansas Workers’ Compensation  \n \nAct.  \n \nIssue \n \nBy  agreement  of  the  parties,  the sole issue  to  be  litigated  at  the  hearing  was: Whether \nClaimant is entitled to additional medical treatment, in the form of a peripheral nerve stimulator \nper the recommendation of his treating physician, Dr. Johnathan Goree.  \nContentions \n Claimant: \n On January 14, 2021, the Claimant sustained a compensable right shoulder injury within \nthe course and scope of his employment while pulling on a tire iron.  The Respondents accepted  \nthe injury as compensable and began paying for medical treatment. \n An MRI revealed a torn labrum.  On March 2, 2021, the Claimant underwent surgical repair \nwith Dr. Kirk Reynolds.  Still in pain, Claimant underwent a repeat MRI on September 14, 2021, \nwhich revealed a posterior labral tear from 7- 11 o’clock.  It was noted that this was a large sub-\n\nMitchell- H100964 \n \n3 \nlabral recess or tear of the superior labrum.  On November 16, 2021, Dr. Reynolds performed a \nright  shoulder  arthroscopy.    The  Claimant  underwent  injections with  Dr.  Vargas  due  to  his \ncontinued complaints. \n On  March  15,  2023,  the  Claimant  underwent  an  MRI  which  revealed  a  large  posterior \nlabral tear with labral chondral defect, mild to moderate osteoarthritis grade 2/4 cartilage loss, and \nsupraspinatus muscle atrophy.  The Claimant’s treatment was then switched to Dr. O’Malley, who \nrecommended another shoulder surgery, and Dr. Goree, for his pain management.  On April 27, \n2023, the Claimant underwent a right shoulder scope with posterior labral repair. \n Dr. O’Malley placed the Claimant at MMI on October 2, 2023,  and assessed a 10% whole \nbody impairment rating.  Dr. O’Malley also referred the Claimant for continued treatment with Dr. \nGoree. \n Claimant followed up with Dr. Goree, who noted that the Claimant suffers from Complex \nRegional Pain Syndrome (CRPS) and recommended a peripheral nerve stimulator for his injury.  \nRespondents have denied the stimulator. \n The  Claimant  contends  that  he  is  entitled  to  the  additional  medical  treatment  as \nrecommended by Dr. Goree. \n All other issues are reserved.    \nRespondents: \n \nThe Respondents contend that all appropriate benefits are being paid with regard to this \n \nmatter.  It is Respondents’ position that the peripheral nerve stimulator recommended by Dr. Goree \nis not reasonable and necessary for the Claimant’s compensable injury. \n \n\nMitchell- H100964 \n \n4 \nSummary of Evidence \nMr. Justin Paul Mitchell (referred to herein as the “Claimant”), was the only witness to \ntestify during the hearing.  \nThe record  consists  of  the  hearing  transcript  of  August  14,  2024,  and  the  documents \ncontained therein.  Specifically, Commission’s Exhibit 1 includes the Commission’s Prehearing \nOrder filed  on  June  12,  2024  and  the  parties’  responsive  filings;  Claimant  Medical  Exhibit \nconsisting of one hundred forty one (141) numbered pages was marked as Claimant’s Exhibit 1; \nand Respondents’ Medical Exhibit consisting of three (3) pages was marked accordingly.  \n   FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn the basis of the record as a whole, to include the aforementioned documentary evidence, \nother  matters  properly  before  the  Commission,  and  after  having  had  an  opportunity  to  hear  the \ntestimony of the Claimant and observe his demeanor, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers'  Compensation  Commission  has  jurisdiction  of  the  within \nclaim. \n \n2. The  employee-employer-carrier  relationship  existed  at  all  relevant  times,  including \nJanuary 14, 2021. \n \n3. The remaining stipulations set forth above are hereby accepted. \n \n4. The evidence preponderates that the peripheral nerve stimulator recommended by the \nClaimant’s  treating  physician,  Dr.  Johnathan Goree, is  reasonable  and  necessary \ntreatment for the Claimant’s compensable right shoulder injury of January 14, 2021. \n \n                                                             Hearing Testimony  \n The Claimant, age 36, has a nursing degree and EMT training.  He graduated from high \nschool in 2006.  He attended UAMS School of Health and Related Professionals.  The Claimant \n\nMitchell- H100964 \n \n5 \nalso attended Baptist Health College in Little Rock.  He holds an LPN (licensed practical nurse) \nlicense, which he obtained in 2015.  The Claimant obtained his EMT license in 2007. \n Since leaving high school and before going to work as an EMT, the Claimant performed \nentry  level  mechanic-type  work.    Next,  the  Claimant worked  for eleven  years as  an  EMT  for \nMEMS in Little Rock.  He testified that he also did ambulance work, and then in 2015 he obtained \nhis nursing degree and started working in critical care, in an acute hospital setting.  The Claimant \nalso worked back and forth on an ambulance.  According to the Claimant, he has always worked \non cars on the side. \n The Claimant confirmed that he worked for Metropolitan EMS until around 2019, and then \nhe went to work at Amberwood Health and Rehab in Benton.  There, the Claimant worked as an \nLPN  in his  first  nursing  job.   Next, he  went  to  work  for  St.  Vincent,  which  is  also called \nCornerstone Hospital.  He confirmed that he worked in critical care.  The Claimant confirmed that \nhe left Cornerstone during COVID. \n Per the Claimant, he started working at Parker Audi Automotive in August or September \nof 2020.  He confirmed that he went straight from Cornerstone over to Parker.  When the Claimant \nleft there, he went to work full-time with Parker.  The Claimant testified that he left the hospital \nsetting strictly due to “burnout.”  He explained that he had been in medicine all of his life and it \nwas time for a change.  According to the Claimant, COVID threw nurses over the edge, and he \nhad to escape that for a bit.  \n He  confirmed  that  he  was  hired  as  a  mechanic  at  Parker  as  a full-on technician. The \nClaimant testified that his job duties included basic maintenance, and in a brief time he was pulling \nmajor parts and engines from cars.   \n\nMitchell- H100964 \n \n6 \n On January 14, 2021, the Claimant was injured while at the tire mounting machine, which \ngrips the wheel and tire on its side to change the tires out.  He essentially testified that Audi uses \na very tight-walled tire that makes them high tensile tight, and they have to use tire irons and the \nmachine to break the bead off and get the tire demounted.  When the Claimant pulled back the tire \niron, he felt an extremely sharp pain in his right shoulder.  He testified that the pain lasted for a \nfew minutes and then it subsided.  The Claimant testified that of course he did not think anything \nof it at the time.  He took a break and then went to lunch.  The next day, the Claimant realized that \nhe had a problem, and it started flaring up when he was doing his other work. \n He confirmed that he injured his shoulder on January 14, 2021, and that the Respondents \naccepted his injury as compensable and paid for his medical treatment.  The Claimant testified that \nhe had what they call a SLAP tear, superior labrum anterior to the posterior tear, which is a right \ntear in the larum about 60% of the way around.  He was sent to Dr. Reynolds for treatment of his \nright shoulder injury.  However, the Claimant explained that the first medical person he saw was \nat an urgent care clinic affiliated with CHI St. Vincent, in Little Rock.  There, the Claimant was \ndiagnosed with  a  torn  rotator  cuff.    As a  result,  the  Claimant referred over  to  orthopedics for \nfurther treatment and evaluation by Dr. Reynolds.  At that point, the Claimant found out that he \nhad a SLAP tear.  The Claimant underwent surgery on March 2, 2021, under the care of Dr. Kirk \nReynolds, in the form of an arthroscopic procedure to repair the tear.  Following this first surgery, \nDr. Reynolds reported that the Claimant was doing well, and physical therapy was ordered.  \nThe  Claimant  confirmed  that  he  had  worsening  pain by  August  2021.    As  a  result,  in \nSeptember of 2021 another MRI was performed.  This MRI showed a tear.  The Claimant testified \nthat  it  had  reopened,  which  was  a  re-tear in  the  same  place.    He  returned  to  Dr.  Reynolds  on \n\nMitchell- H100964 \n \n7 \nNovember  16, 2021, and he performed another arthroscopic procedure on the Claimant’s right \nshoulder.  Next, the Claimant underwent some platelet rich plasma (PRP) injections by Dr. Vargas.  \nThe  Claimant  testified  that  Dr.  Vargas  also did  the  cortisone injections as  well  as the PRP’s. \nHowever, the Claimant testified that unfortunately, the PRP’s did not help relieve his symptoms, \nnor did the cortisone shots work.  Per the Claimant, he underwent two PRP’s with no improvement.   \nOn  May  3, 2022, the  Claimant  underwent an  FCE with  reliable  results,  with  52  of  52 \nconsistency measures.  He was given a medium duty work restriction.  The Claimant followed up \nDr. Reynolds on May 19, 2022, and he released the Claimant from his care with a 6% whole body \nimpairment rating.  \nThe Respondents then sent the Claimant for an Independent Medical Evaluation/IME with \nDr. Carlos Roman.  The Claimant confirmed that he saw Dr. Roman on June 6, 2022.  At that time, \nthe Claimant confirmed that he was diagnosed with right shoulder weakness and chronic shoulder \npain. \nPer the Claimant, his visit with Dr. Roman went terrible.  The Claimant testified that he \nwas downplayed from the very beginning.  According to Claimant, the vibe he got from walking \ninto that office and being offered a medical marijuana card was just off-putting to him for someone \nbeing in medicine and knowing that he was a nurse and could not do that.  He specifically testified \nthat  his  SLAP  procedure  and “whole  illness was downplayed.”  The  Claimant  testified  that  he \nwants  to  get  off  the  pain  medicines.  He  confirmed  that  he  filed  a  change  of  physician  to  Dr. \nJohnathan Goree  following  that  office  visit.   The  Claimant  admitted  that  he  underwent  a \nradiofrequency ablation for his right shoulder. \n\nMitchell- H100964 \n \n8 \nThere are two types of temporary blocks that were used, some other drug and Lidocaine in \nthe targeted area that they planned to do the ablation in.  Two temporary blocks were done and \n80% was successful.  According to the Claimant, then the actual ablation was done.  Unfortunately, \nthe  ablation  targeted  area  did  not  work,  so he still had the  exact  amount  pain.   As  a  result,  Dr. \nGoree referred the Claimant for surgical intervention by Dr. Lawarence O’Malley.  On April 27, \n2023, Dr. O’Malley performed a right shoulder scope due to another posterior labral tear.   \nDr. O’Malley noted on October 2, 2023, that the Claimant was at maximum medical \nimprovement and assigned a 10% whole body rating and referred the Claimant back to Dr. Goree \nfor pain management.  The Claimant confirmed that the Respondents accepted both of his ratings.  \nHe testified that after the third surgery, Dr. Goree and Dr. O’Malley communicated and consulted \nabout his shoulder  condition.   The  Claimant  explained  that  Dr.  Goree  has  recommended  the \nperipheral  nerve  stimulator  to  block  those  messuages  being  sent  from  the  arm  to  the  brain.   \nAccording  to  the  Claimant,  the  peripheral  nerve  stimulation  is a battery  pack  with  low  voltage \nfrequency.  He testified that this device calms the nerve pain, although it does not take it completely \naway.   \nWith respect to the stimulator, the Claimant testified that the battery pack could be placed \nin  the  chest  cavity  or  externally  with  an adhesive  pouch  to  hold  the  actual  transmitter.   The \nClaimant testified that initially the device is placed externally on the body.  If it is determined that \nthe device is helping, then they will implant it in his chest wall.  The Claimant testified that  \ncurrently,  Dr.  Goree  has  him  on  Oxycodone  5-miulligram,  PRN, which  means he  takes  it  as \nneeded.    According  to  the  Claimant,  sleep  disturbance  can  be  a  big issue, so  he  put  him  on \nNortriptyline to help with his sleep, and that is the only thing that has worked so far to dull the \n\nMitchell- H100964 \n \n9 \npain down some so that he can rest at night.  However, the Claimant testified that the goal is to get \nhim off the medications with this instrument.   \nUnder further questioning the following exchange took place: \nQ Okay.  Tell me -- I want you to describe the pain that you feel.     \nA The pain that I feel, dependent on what I’m doing, if it’s at rest it’s a throbbing dull \npain, almost like an arthritic pain that doesn’t go away.  Anything above shoulder or chest \nheight with my arm being raised is a sharp, feels like almost tearing as soon as I raise my \narm, and just being at a standstill can almost move my body and hear that joint creak, which \nI’ve brought up a few times, but it’s part of the joint being fused back together so it’s \nconstant pain, either sharp or dull.  \n \nThe Claimant confirmed that after his doctors released him to medium duty work, his   \nemployer tried to put him back to work.  According to the Claimant, he knew that this was a tactic \nto get him to return to work.  However, the Claimant testified that as soon as he was back at work, \nthe next day they had him lifting 70-pound batteries from the back of vehicles.  As a result, the \nClaimant decided not to continue his employment with Parker Audi.    \n He confirmed that he has a personal hobby farm.  It is about two acres, and they use half \nof it to raise chickens.  According to the Claimant, they do not really do commercial farming or \nanything.    He stated that  they  have  eight chickens and  eight  ducks.   Also,  they  grow  tomatoes, \nwhich are grown only seasonally.  The Claimant’s long-time girlfriend runs a flower farm, and she \ngrows  just  about  everything.    He  confirmed  that  he  is  half owner in the Front  Porch Farmer’s \nMarket, which is a community cooperative market.  They support Arkansas farmers.  The Claimant \ntestified that he made $5000.00 from this business last year.  \n On cross-examination, the Claimant confirmed that his deposition was taken on November \n9,  2023.  The  Claimant  admitted  that  following  his  second  surgery  with  Dr.  Reynolds,  he \nunderwent  some  injections  by  Dr.  Vargas.    He  agreed  that  the  injections  did  not  help, so  Dr. \n\nMitchell- H100964 \n \n10 \nReynolds sent him to Dr. Roman for pain management.  He confirmed that he did not get along \nwith Dr. Roman due to a personality conflict, and that this is the reason he obtained a change of \nphysician to treat with Dr. Goree.  The Claimant confirmed that Dr. Goree’s nurse practitioner sent \nhim to Dr. O’Malley for his third surgery to be performed.  He agreed he testified in his deposition \nthat the third surgery did help some with stability.   \nThe Claimant confirmed that to date, all of his medical treatment has been paid for by the \nworkers’ compensation carrier.  He agreed that currently he is working sixteen hours a week at \nBaptist Health College.  The Claimant admitted that he testified in his deposition that if full-time \nwork became available, he would probably take it.   \nUnder further questioning, the Claimant admitted that he is not under any restrictions from \na doctor.  During his deposition, the Claimant testified that he oversees the operations of the farm \nproduct at market as part of his work with the Farmer’s Market.  Besides his sleep medication and \nOxycodone, the Claimant takes over-the-counter medications for really severe pain.  The Claimant \nconfirms  that  he  takes Oxycodone only  in  the  evenings  because  he  likes  to  be  able  to  function \nclearly.   \nThe  Claimant  gave  the  following  explanation  regarding  the  current  condition  of  his \nshoulder: \nIt is not good.  From just a layperson’s standpoint or a medical person’s standpoint, \nI deal with a lot of pain.  It has changed my personality: it has changed my sleep patterns; \nmy relationships; and my jobs.  It has affected single portion of my life. \nThe shoulder itself is trashed, but the only way without saying anything about what \nthe doctors said is, you know, we’ve got to kick the can down the road per se before I can \nget a shoulder replacement, and that’s in my 50’s, if I’m lucky. \n \nThe Claimant testified that he would like to get off of the pills because he knows where \n\nMitchell- H100964 \n \n11 \nthat can go.  He testified that he thinks it is unfair to keep going in this condition and being in this \nshape at the age of 36.  According to the Claimant, he is unable to throw a ball with his son.  His \nson is 10 and plays baseball.  The Claimant confirmed that he is in constant pain.     \n     Medical Evidence  \n A  review  of  the  medical  records shows that  on  January  19,  2021,  the  Claimant  sought \nmedical  treatment  at  CHI  St.  Vincent  Infirmary in  Little Rock due  to  a “right  shoulder  injury.”  \nThe Claimant reported that he injured his right shoulder at work while changing a tire.  Progress \nNotes authored by Leanne Glidewell, APRN, show that the Claimant was assessed with, “1.  Injury \nof right rotator cuff, initial encounter- S46.0001A (Primary) 2.  Acute pain in my right shoulder -\nM25.511.  3.  Accident  at  workplace -Y99.0.”  Glidwell opined  that the Claimant  likely  had  a \nrotator cuff injury given his acute right shoulder pain and limited range of motion. As a result, she \nplaced the Claimant on limited work duty and referred him to an orthopedic specialist. \nThe Claimant underwent an evaluation by Dr. Kirk Reynolds on January 19, 2021, due to \na  chief  complaint  of  right  shoulder  pain.   At  that  time, four (4) Views  of  the Claimant’s right \nshoulder were obtained. \nIMAGING \n4 [sic]VIEWS of the right shoulder were obtained today and personally reviewed.  \nGlenohumeral alignment and architecture are normal.  There is no AC joint or \nglenohumeral arthritis.  The humeral head is well centered in the glenoid without \nevidence of posterior subluxation of superior escape. Type 1 acromion. \n \nASSESSEMENT \nRight shoulder pain, instability, and mechanical symptoms consistent with labral \npathology. \n \nPLAN \nDiagnosis and  treatment  discussed  with  justin(sic)  in  clinic  today.    Given  his  pain, \nmechanical symptoms, weakness and instability I recommend an MRI arthrogram of the \nright  shoulder  to  better  evaluate  biceps  anchor,  posterior  labrum  and  other  intra-\n\nMitchell- H100964 \n \n12 \narticular/periarticular  structures.    I  will  have  him  return  for  re-evaluation  once  that  is \navailable for review in the interim, he will remain on modified duty at work with no lifting, \npushing or pulling with the right upper extremity and no work above shoulder level.  He \nhas not reached MMI.   \n \nIt is my professional medical opinion that 100% of his current complaints and pathology \nare not directly and causally related to his injury which occurred at work on the date stated \nabove. \n \nOn February 4, 2021, the Claimant underwent an MRI Right Shoulder Direct Arthrogram: \nIMPRESSION: \n1. Suspected posterior  glenoid  hypoplasia  with  tearing  of  the  posterior  labrum.    Labral \ntearing  extends  from  the  11:00  position  posterior  superiorly  to  the  6:00  position \ninferiorly.  There is no definite involvement of the biceps labral anchor or intra-articular \nbiceps.   \n2. Heterogeneous  signal  of  the  central  and  posterior  glenoid  cartilage is suspicious  for \nlow-grade chondromalacia.  No definite high-grade cartilage defect or subchondral cyst \nformation. \n3. No evidence of rotator cuff tear. \n \nFluoroscopy Guided Right Shoulder Injection for Direct MR Arthrography was done on  \n \nthat same  with an IMPRESSION: of “Successful fluoroscopy guided right shoulder injection for \ndirect MR arthrography.”   \n           The Claimant underwent right shoulder surgery on March 2, 2021, by Dr. Reynolds: \nPREOPERATIVE DIAGNOSES: \n1. Right shoulder posterior subluxation with posterior labral tear.  \n2. Right shoulder unstable, type II SLAP tear. \n \n            POSTOPERTIVE DIAGNOSES: \n1. Right shoulder posterior subluxation with posterior labral tear.  \n2. Right shoulder unstable, type II SLAP tear. \n3. Right shoulder traumatic arthroscopic chondroplasty of the glenoid. \n \nPROCEDURES PERFORMED: \n1. Right shoulder diagnostic arthroscopy with posterior stabilization/labral repair. \n2. Right shoulder arthroscopic repairment of unstable, type II SLAP tear. \n3. Right shoulder arthroscopic chondroplasty of the glenoid. \n \nDr. Reynolds saw the Claimant in follow-up care on April 8, 2021, after performing a right  \n\nMitchell- H100964 \n \n13 \nshoulder arthroscopy with posterior stabilization/labral repair, repair of an unstable type II SLAP \ntear and chondroplasty of the glenoid on March 2, 2021.  At that time, Der. Reynolds returned the \nClaimant back to work on modified duty. \n            On May 19, 2021, the Claimant returned to Dr. Reynolds for a follow-up evaluation of his \nright shoulder injury.  Overall, the Claimant was doing well eleven (11) weeks status post- shoulder \narthroscopy.  However, Dr. Reynolds noted that the Claimant still had some functional weakness \nand  residual  stiffness  in his  right shoulder.    Therefore,  Dr.  Reynolds  recommended  that  the \nClaimant continue with formal physical therapy.  He returned the Claimant to modified duty work.  \nDr. Reynolds noted that the Claimant continued to be restricted to no work above shoulder level, \nwith the right upper extremity.  At that time, Dr. Reynolds also stated that the Claimant was not at \nMMI for his right shoulder injury. \n            Dr.  Victor  Vargas  evaluated  the  Claimant  on  July  26, 2021, due  to  a  chief  complaint  of \nright  shoulder  pain.  He performed a “Right shoulder glenohumeral joint intra-articular  steroid \ninjection under ultrasound needle guidance.” \n           On August 18, 2021, the Claimant returned to Dr. Reynolds for an office visit.  At that time, \nthe Claimant had undergone the joint injection by Dr. Vargas.  Per this Clinic Note, the Claimant  \nwas  now  five  and  one-half  months (5½)  out  from  right  shoulder  arthroscopy  with  posterior \nstabilization and SLAP repair.  Dr. Reynolds noted that the Claimant’s symptoms were actually \nworsening, and he had more stiffness and loss of rotation at the time.  The Claimant also reported \n fairly  significant  pain  in  his  shoulder  with bicep provocation  maneuvers.    Dr.  Reynolds \nrecommended  that  the  Claimant  undergo  a  repeat  MRI  arthrogram  to  get  a  better  idea  of  the \n\nMitchell- H100964 \n \n14 \nintegrity of his labral repair and biceps anchor.  He again opined that the Claimant had not reached \nMMI.      \n            On  September  14,  2021,  the  Claimant  underwent  an  MRI  of  the  right  shoulder  with  the \nfollowing impression: “Orthopedic anchors in the glenoid.  Posterior labral tear from 7-11 o’clock \nlarge sub labral recess or tear of the superior labrum.” \n           Dr. Reynolds saw the Claimant for a follow-up visit on September 15, 2021.  At that time, \nthe Claimant was assessed with “Persistent right shoulder pain with recurrent posterior labral tear \nand  cystic  changes  at  the  superior  glenoid  labrum  in  the  region  of  his  prior  SLAP  repair.”  Dr. \nReynolds  further  noted  that  the  Claimant  had  underlying  posttraumatic  arthritis\\traumatic \narthropathy of the glenohumeral joint. \nOn November 16, 2021, Dr. Reynolds authored an Operative Report: \nPREOPERTIVE DIAGNOSES: \n1. Right shoulder arthrofibrosis. \n2. Right shoulder recurrent posterior-superior labral tear. \n \nPOSTOPERTIVE DIAGNOSES: \n1. Right shoulder arthrofibrosis. \n2. Right shoulder recurrent posterior-superior labral tear. \n3. Right shoulder subacromial and subdeltoid bursitis. \n \nPROCEDURES PERFORMED: \n1. Right shoulder open, subpectoral biceps tenodesis. \n \n2. Right shoulder arthroscopic synovial biopsy for culture with removal of prior, failed \nsutures,  debridement  of  the  glenoid  labrum,  chondroplasty  of  the  glenoid  and \nsubacromial subdeltoid bursectomy.   \n \n           The Claimant returned to the office of Dr. Reynolds on December 1, 2021, for a follow-up \nvisit of his chronic right shoulder pain.  Overall, the Claimant was doing well at two weeks out \npost right shoulder arthroscopy.  Dr. Reynolds directed the Claimant to continue physical therapy \n\nMitchell- H100964 \n \n15 \nand returned the Claimant to modified duty along with instructions to wear a sling for two more \nweeks.  At that time Dr. Reynolds opined that the Claimant was not at MMI for his right shoulder \ninjury. \n            On February 22, 2022, the Claimant underwent “Right shoulder glenohumeral joint intra-\narticular PRP injection under ultrasound needle guidance,” which was performed by Dr. Vargas. \nThis  procedure  was  performed  because  the  Claimant  had  an  indication  of  right  shoulder  pain, \narthrofibrosis, and a SLAP tear.    \n         Dr. Vargas performed a second injection on the Claimant right shoulder on March 10, 2022. \nAccording to Dr. Vargas’ notes, the Claimant continued to complain of aching, dull and throbbing \npain in his right shoulder.  The Claimant continued to take pain medication.  However, Dr. Vargas \nrecommended that the Claimant for referral to a pain management specialist.   \n        On April 18, 2022, the Claimant returned Dr. Reynolds for reevaluation of his right shoulder \npain.   The  Claimant  was  now  status  post of  two  separate  ultrasound-guided  glenohumeral  joint \nplatelet  right  plasma  injections.   Dr.  Reynolds  reported  that  unfortunately  neither  of  these \nprocedures  provided  any  significant  pain  relief. At  that  time,  Dr.  Reynolds  explained  to  the \nClaimant that he had a fairly significant injury to his right shouler that is unlikely to completely \nresolve  with  regard  to  regaining  full  range  of  motion  and  complete  pain  relief.  The  Claimant \nreported  to  Dr.  Reynolds  that  he  had  changed  his  line  of  work  due  to  his  shoulder  injury.  \nTherefore,  Dr.  Reynolds discussed  with  the  Claimant  a  Functional  Evaluation  to figure  out the \nobjective functional status of his shoulder.  Dr. Reynolds stated that the Claimant had not reached \nMMI for his shoulder injury.    \n\nMitchell- H100964 \n \n16 \n        The Claimant was reevaluated on May 19, 2022, by Dr. Reynolds for his right shoulder injury. \nPer  these  medical  notes,  Dr.  Reynolds  reported  he  had  reviewed  the  Claimant’s  Functional \nCapacity  Evaluation,  which  was  done  May  3,  2022.    Per  these  notes,  the  Claimant  put  forth a \nreliable effort with 52 of 52 consistency measure within expected limits.  Dr. Reynolds opined that \nbased on the Claimant’s functional abilities he could perform work-related tasks in the “Medium,” \nclassification  of work  as  defined  by  the  US  Department  of Labor’s  guidelines.    It  was  Dr. \nReynolds’ professional opinion that the Claimant had reached MMI on his right shoulder injury. \nTherefore, Dr. Reynolds returned the Claimant to work with the current restrictions as detailed on \nhis FCE.  Dr. Reynolds opined that no further surgical treatment or physical therapy was warranted. \nHowever, Dr. Reynolds stated that the Claimant does have objective loss of function in his right \nshoulder  associated  with  post-traumatic  arthritis  of  the  glenohumeral  joint  secondary  to  the \ntraumatic chondral defect of the posterior glenoid.  He went on to state that the pain associated \nwith this objective defect is certainly an impact on his ability to perform activities of daily living \nas well as any work tasks.  Dr. Reynolds wrote in pertinent part: “It is outside of the scope of my \npractice to manage his pain long-term, so I recommend a referral to a pain management specialist. \nHopefully he will be able to find alternative ways to manage his pain and posttraumatic arthritis \nwhile limiting narcotic utilization.  It is my professional medical opinion that this is directly and \ncausally related to his injury at work despite the  fact that pain is identified in the AMA Guides \nwhen calculating an impairment rating. Utilizing the AMA Guides to the Evaluation of Permanent \nImpairment,  Fourth Edition,  Dr. Reynolds  assessed  the  Claimant  with  a  10%  partial  permanent \nimpairment to the right upper extremity associated with loss of shoulder forward abduction and \ninternal  rotation.  This amounted  to a  6%  partial  permanent  impairment  to  the  whole  person \n\nMitchell- H100964 \n \n17 \naccording to Table 3 on page 20.  The above statements were made with a reasonable degree of \nmedical certainty by Dr. Reynolds. \n       On June 6, 2022, the Claimant underwent an Independent Medical Evaluation by Dr. Carlos \nRoman due to his chronic right shoulder pain.  Dr.  Roman assessed the Claimant with “1.  Chronic \nright shoulder pain.  2. Status post posterior labral tear.  3. Right shoulder weakness.”  It appears \nthat Dr. Roman prescribed a medication regimen for the Claimant’s right shoulder pain that \nincluded opiates.  However, the Claimant discussed the long-term use of opiates with the Claimant.  \nAs an LPN Dr. Roman stated that the Claimant understood the concerns there.  \n           The Claimant was evaluated by Dr. Johnathan Goree on September 13, 2022.  At that time, \nthe  Claimant  presented  to  Dr.  Goree  for  an  initial  evaluation  of  his  chronic  post-surgical  right \nshoulder  pain.  The  Claimant  reported  that  he  has  severe  pain  with  extension  of  his  arm  and \nshoulder.  He reported that his pain was improved with Hydrocodone.  Dr. Goree’s assessment \nwas “Chronic pain. Post surgical shoulder pain,” for  which he discussed with the Claimant \nshoulder  RFA (Radiofrequency  Ablation) if  the  Claimant  does  not  have  surgical  options.    He \ncontinued the Claimant’s medication regimen, which included Hydrocodone. \n          On  October  7,  2022,  the  Claimant  was reevaluated  by  Dr.  Reynolds.    The  Claimant  was \nnineteen (19) months post arthroscopic repair of  a right SLAP tear and posterior labral tear and    \neleven  (11)  months  status  post  arthroscopic  lysis  and  adhesives  with  suture  anchor  removal, \nbursectomy  and  open  biceps  tenodesis.  Dr.  Reynolds  opined  that  the  Claimant  continued  with \nfairly significant pian in  the right shoulder girdle, which does limit his functional capacity.  He \nspecifically opined, in relevant part: “It is obvious on clinical examination that his pain behaviors \nare consistent with physical examination findings.”  It was Dr. Reynolds’ professional opinion that \n\nMitchell- H100964 \n \n18 \nthe Claimant does not require surgical intervention.  Dr. Reynolds agreed with Dr. Goree’s \nrecommendation for diagnostic analgesic injection in the periarticular sensory nerve to determine \nrelief  of  pain.  In  the  setting  of  a  good  response  Dr.  Reynolds  recommended  a  radiofrequency \nablation  as  a  pain-relieving  modality.   His assessment was “1.  Pain of right shoulder joint.  2. \nMechanical  complication  of  internal  orthopedic  device  implant  AND/OR  graft.    3.  Traumatic \narthropathy of right shoulder.” \nThe Claimant presented to the clinic of Dr. Goree on February 3, 2023.  Per these notes,  \nDr. Goree performed left suprascapular, axillary and superior pectoral nerve block on November \n3 and on December 8 with report of significant relief (85%) of pain temporarily.  Then the Claimant \nhad  ablation  on  December  29,  2022,  without  relief.    While  undergoing  attempts  in  treating \nClaimant’s pain procedurally, Dr. Goree provided the Claimant with Hydrocodone.  However, Dr. \nGoree recommended that the Claimant plan for Sprint peripheral nerve stimulation with Dr. Goree \nfor his post-operative shoulder pain and decreased ROM and function.        \nOn March 15, 2023, the Claimant underwent an MRI arthrogram of the right shoulder.  The  \nprior day, the Claimant underwent an MRI arthrogram of the right shoulder on March 14, 2023.  \nTherefore, the Claimant presented to Dr. Lawrance O’Malley on March 27, 2023, to  discuss the \nresults.  The Claimant  reported that his pain was  essentially the same as it was prior to his two \nsurgeries. As a result, he presented to Dr. O’Malley for evaluation and to discuss his options.   Dr. \nO’Malley wrote in relevant part: \nIMAGING: New MRI arthrogram of the right shoulder is available for review today. He \nhas  a  large  posterior  labral  tear  noted.    There  is  also  fraying  of  the  supraspinatus  and \nsubscapularis.  \n \nIMPRESSION: continued right shoulder pain with posterior labral tear.  \n \n\nMitchell- H100964 \n \n19 \nPLAN:  A  Long  discussion  was  had  with  the  patient  today  regarding  his  diagnosis  and \ntreatment options.  We have ruled out a subclinical injection at this time.  He would like to \nproceed with surgical intervention... \n \nThe Claimant returned to Dr. O’Malley for further evaluation following the surgical  \n \nintervention of his chronic right shoulder pain on May 11, 2023.  At that time, the Claimant was \ntwo weeks out from “right shoulder arthroscopy with posterior labral repair.” Overall, the Claimant \nwas doing well.  As a result, physical therapy was ordered       \nOn October 2, 2023, Dr. O’Malley pronounced the Claimant to be at MMI.  He assessed  \nthe Claimant with a 10% whole body impairment.  Dr. O’Malley referred the Claimant for pain \nmanagement with Dr. Goree because the Claimant was still in significant pain.   \n           The Claimant returned to Dr. Goree for evaluation of his severe shoulder pain on March 12, \n2024.  Dr. Goree noted that the Claimant was doing decently with his medication, which included \nHydrocodone.  Although the Claimant’s pain had improved with the third surgical intervention, he \ncontinued with some severe pain.  Dr. Goree discussed with the Claimant specific treatment plans \nincluding alternative nonpharmacologic therapies.  Specifically, Dr. Goree opined, “In my opinion \nthe  potential  for  opioid  abuse  or diversion  is  outweighed  by  the  potential  benefits  of  opioid \ntherapy.”  They discussed spinal cord stimulation for the Claimant’s pain, but this treatment had \nbeen  denied by the workers’ compensation carrier for another surgery.  However,  the Claimant \nexpressed an interest in this treatment. \nOn May 28, 2024, Dr. Roman answered questions posed by the workers’ compensation  \nCarrier regarding the peripheral nerve stimulator.  Dr. Roman opined that the stimulator is clearly \nnot indicated.  He stated that the Claimant does not have a neuropathic nerve problem, and he has \nosteoarthritic problems in his right shoulder, which disqualifies him for this treatment.  Dr. Roman \n\nMitchell- H100964 \n \n20 \nalso stated  that  looking  at  articles  in  the  literature  going  back  to  2022,  evidence  based  clinical \nguidelines of the American Society of Pain Neuroscience views of implantable peripheral nerve \nstimulation treatment of chronic pain, the main indications  here for this treatment are for chronic \nmigraine  headaches,  hemiplegia  of  the  shoulder  via  stimulation  of  nerves  innervating  the \nmusculature, failed back surgery, extremity neuropathy and post amputation pain, in particular for \nneuropathic  pain  processes.  Dr.  Roman  stated that further  treatments for the  Claimant  would \ninclude reasonably include maybe occasional steroid injections and at some point, he might be a \ncandidate for shoulder replacement, but no further surgical intervention.  He also stated that the \nClaimant might benefit from anti-inflammatories and possible occasional intra-articular shoulder \ninjection with steroid to see if it will offer relief.  Dr. Roman stated that the Claimant has chronic \nright shoulder pain, he got an osteoarthritis right shoulder as is related to the injujry.                \n                                                                 Adjudication \n \nReasonable and Necessary Medical Treatment: \nThe Respondents accepted the Claimant’s January  14, 2021, right  shoulder injury  as \ncompensable.    They  have paid for extensive medical  treatment  and  temporary  total  disability \ncompensation to and on behalf of the Claimant as a result of his right shoulder injury. The Claimant \nnow  asserts  that  he  is  entitled  to additional reasonable  and  necessary  medical  treatment, for  his \nright shoulder injury in the form of a peripheral nerve stimulator as recommended by Dr. Johnathan \nGoree.  \nAn  employer  shall  promptly  provide  for  an  injured  employee  such  medical  treatment  as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \n\nMitchell- H100964 \n \n21 \nAnn. §11-9-508(a) (Repl. 2012).  The Claimant must prove by a preponderance of the evidence \nthat  the  medical  treatment  is  reasonably  necessary in  connection  with  the  injury  received \nemployee. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W. 2d 593 (1995).  \nPreponderance  of  the  evidence  means  the  evidence  having  greater  weight  or  convincing \nforce.  Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \nAfter  reviewing  the  evidence  in  this  case  impartially,  without  giving  the  benefit  of  the \ndoubt to either party, I find that the Claimant proved by a preponderance of the credible evidence \nthat  the  medical  treatment  in the  form  of peripheral  nerve  stimulator,  as  recommended by  Dr. \nGoree is reasonably necessary in connection with the admittedly compensable right shoulder injury \nreceived by the Claimant on January 14, 2021. \nThe  Claimant  has  training  and  skills  in  mechanic  type  work.    He  also  has  training  as  a \nnurse.  Nevertheless, it is undisputed that the Claimant sustained a compensable injury to his right \nshoulder on January 14, 2021, while changing out a tire.  At the time of the Claimant’s injury, he \nworked for Parker Audi as a mechanic.  The Respondents accepted the injury as compensable and \npromptly  began  providing  the  Claimant  with  medical  treatment  in  connection  with  the  injury \nreceived by the Claimant.  \nAn MRI was performed of the Claimant’s right shoulder which revealed a torn labrum.  \nThe  Claimant  underwent  a  right  shoulder  arthroscopy  with  posterior  stabilization,  SLAP  repair \nand  chondroplasty  of  the  glenoid,  on  March  2,  2021,  by  Dr.  Reynolds. Following  this  surgical \nintervention,  the  Claimant  initially  did  well.    However,  he  developed  worsening  symptoms  of \nshoulder pain  and  stiffness.   The  Claimant  underwent  a  round  of  physical  therapy.  Also, Dr. \nVargas   performed   ultrasound-guided   glenohumeral   joint   corticosteroid   injections for the \n\nMitchell- H100964 \n \n22 \nClaimant’s complaints of ongoing right shoulder pain and other related symptoms.  Unfortunately, \nthe Claimant received no significant improvement after the injections.  As a result, Dr. Reynolds \nordered a repeat MRI arthrogram of the shoulder.    \nOn September 14, 2021, the Claimant underwent an MRI which revealed “a large posterior \nlabrum tear” and other objective  findings as  detailed  above.    Dr.  Reynolds  performed a  second \nright  shoulder  surgery  in  the  form  of  an  arthroscopy  on  November  16,  2021.  The  Claimant \nunderwent another round of physical therapy, per protocol.  On February 22, 2022, and March 10, \n2022,  the Claimant underwent right  shoulder  glenohumeral  joint  intra-articular  injections under \nultrasound needle guidance by Dr. Vargas.  However, neither of these provided the Claimant with \nany significant relief from his right shoulder pain.  Ultimately, following the Claimant’s second \nright shoulder surgery, he was assessed with an impairment rating of 6% to the body as a whole \nby Dr. Reynolds on May 19, 2022.  Despite these treatment modalities, the Claimant continued \nwith significant right shoulder pain and other related symptoms, for which Dr. Reynolds referred \nhim to pain management.  \nThe Claimant came under the care of Dr. Johnathan Goree for his chronic right shoulder \npain,  on  September  13,  2022.   At  that  time,  the  Claimant  continued  with  shoulder  pain  despite \nbeing  on  a  medication  regimen  that  included  Hydrocodone  for  pain.  Therefore,  Dr.  Goree \nperformed nerve blocks for which the Claimant reported significant relief of his pain temporarily. \nDr.  Goree  also  performed an ablation  on  December  29,  2022,  with  no  relief  of the Claimant’s \nchronic shoulder pain and other related symptoms. \nOn  April  27, 2023, the  Claimant  underwent  a  third  surgery on his  shoulder,  which  was \nperformed by Dr. O’Malley, in the form of a right shoulder scope with posterior labral repair.  In \n\nMitchell- H100964 \n \n23 \nOctober  2023,  Dr. O’Malley pronounced the Claimant to be MMI for his shoulder surgery  and \nassessed a 10% whole body rating.  The Claimant returned to Dr. Goree for pain management, and \nhe  now  recommends  a  peripheral  nerve  stimulator  for relief of the Claimant’s chronic shoulder \npain.  The Respondents have denied this treatment modality.     \nDespite having undergone multiple forms of conservative treatment and three surgeries to \nhis right shoulder, the Claimant has continued with severe chronic right shoulder pain. Currently \nthe Claimant takes Hydrocodone, a sleeping pill and other over-the-counter medications for right \nshoulder pain.  However, the Claimant is also a Licensed Practical Nurse (LPN) and is well aware \nof the concerns surrounding the long-term use of opiates.  The Claimant wishes to try this treatment \nmodality,  the peripheral  nerve  stimulator  for  relief  of  shoulder  pain.    Although  Dr.  Roman  has \nopined that this treatment is not indicated, he has opined that the Claimant is in need of additional \nmedical  treatment  for  his  shoulder,  which  includes  injections  and  possibly  a  total  shoulder \nreplacement  in  the  future. Dr.  Goree has  specifically opined that  he  is  of  the opinion  that  the \npotential for opioid abuse or diversion is outweighed by the benefit of opioid therapy.” I find that \nGoree’s opinion should be afforded weight concerning that he is the Claimant’s treating physician \nand because this treatment modality will give the Claimant the opportunity to get some relief of \nhis chronic shoulder symptoms via the implementation of a nonpharmacologic alternative.  \nThe  Claimant  underwent an  FCE with  reliable  results.    His  testimony  was  credible  and \nconvincing regarding his ongoing pain despite  extensive conservative and three surgeries to his \nshoulder.  The Claimant’s testimony was also corroborated by the medical records.   He expressed \na genuine concern for the long-term use of Hydrocodone for relief of his symptoms. The Claimant \nhas  symptoms  that  are ongoing, and  they  have  resulted  directly  from  his  compensable right \n\nMitchell- H100964 \n \n24 \nshoulder injury  of  January  2021.   The medical  records  show  that  the Claimant’s clinical \nexaminations  and  pain  behaviors  are  consistent  with  his  physical  examination  findings. The \nClaimant has been very compliant and aggressive in obtaining relief of his shoulder pain without \nthe  use  of  opiates. However, the  Claimant  has  exhausted  majority  of the commonly  recognized \nforms  of  conservative treatment  modalities and  three  surgical  interventions  relief  of his  right \nshoulder pain with only temporary relief of his pain.   Aside from heavy narcotics and opiates, the \nClaimant’s options are extremely limited.  For these reasons, I have attached minimal weight to \nDr. Roman’s opinion to the contrary and given significant weight to Dr. Goree expert opinion.   \nAccordingly I  find  that the  Claimant  proved by  a  preponderance  of evidence that  the \nmedical treatment in the form of a peripheral spinal stimulator is reasonably necessary treatment \nfor the injury received by the Claimant on January 14, 2021.   \n          AWARD \n \nBased  on  the forgoing findings  of  fact  and  conclusions  of  law,  I  find  that  the  Claimant \nproved his entitlement to the peripheral nerve stimulator for his compensable right shoulder injury \nof January 14, 2021, as recommended by his treating physician, Dr. Johnathan Goree. \nIT IS SO ORDERED. \n \n \n \n              _______________________________ \n              CHANDRA L. BLACK \n             ADMINISTRATIVE LAW JUDGE","textLength":47164,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H100964 JUSTIN P. MITCHELL, EMPLOYEE CLAIMANT PARKER AUDI, EMPLOYER RESPONDENT CENTRAL ARKANSAS AUTO DEALERS, SIF, CARRIER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED NOVEMBER 12, 2024 A hearing was held before ...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","back","rotator cuff"],"fetchedAt":"2026-05-19T22:46:21.688Z"},{"id":"full_commission-H303552-2024-11-06","awccNumber":"H303552","decisionDate":"2024-11-06","decisionYear":2024,"opinionType":"full_commission","claimantName":"Kyle Mckaughan","employerName":"U Of A Division Of Agriculture","title":"McKAUGHAN VS. U OF A DIVISION OF AGRICULTURE AWCC# H303552 November 06, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/McKaughan_Kyle_H303552_20241106.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"McKaughan_Kyle_H303552_20241106.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H303552 \n \nKYLE McKAUGHAN, EMPLOYEE    CLAIMANT \n \nU OF A DIVISION OF AGRICULTURE,  \nEMPLOYER                                                                           RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/TPA                                                                       RESPONDENT \n \nOPINION FILED NOVEMBER 6, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN BROOKS, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed May 23, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-\nhearing conference conducted on August 14, 2023, \nand contained in a Pre-hearing Order filed August 18, \n2023, are hereby accepted as fact.  \n \n2. The claimant has failed to prove by a preponderance of \nthe evidence that he sustained a compensable \noccupational disease in the form of cancer developed \n\n \nMcKaughan-H303552        2  \n \n \nas a result of his employment with the respondent, with \nhis last exposure date of January 27, 2023.  \n \n3. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to medical treatment as \nhe was unable to prove his occupational disease in the \nform of cancer compensable.  \n \n4. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to temporary total \ndisability benefits as he is unable to prove his alleged \noccupational disease compensable.  \n \n5. The claimant has failed to prove his attorney is entitled \nto an attorney’s fee in this matter. \n \n6. The respondent’s issue of lack of notice as a defense is \nmoot.  \n \n7. The claimant has failed to prove by a preponderance of \nthe evidence that he is entitled to benefits under A.C.A \n§11-9-527 as the claimant is unable to prove that he \nsustained a compensable occupational disease. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n\n \nMcKaughan-H303552        3  \n \n \n Therefore, we affirm and adopt the May 23, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n  The Administrative Law Judge (hereinafter referred to as “ALJ”) \nfound that the Claimant failed to prove by a preponderance of the evidence \nthat he sustained a compensable occupational disease in the form of \ncancer, that the Claimant failed to prove by a preponderance of the \nevidence that he is entitled to medical treatment, that he failed to prove by a \npreponderance of the evidence is entitled to temporary total disability \nbenefits as a result of his form of cancer, that Claimant has failed to prove \nhis attorney is entitled to an attorney’s fee, and that the Claimant has failed \nto prove by a preponderance of the evidence that he is entitled to benefits \n\n \nMcKaughan-H303552        4  \n \n \nunder Ark. Code Ann. § 11-9-527.  After conducting a thorough review of \nthe record, I would reverse the ALJ’s findings.  \n1. History \nClaimant was diagnosed with two very rare forms of cancer, multiple \nmyeloma and chronic lymphocytic leukemia and passed away on \nDecember 11, 2023.  Prior to his death, Claimant filed an AR-C alleging that \nhis cancer is an occupational disease he received as a result of his \nemployment with the Respondent.  Claimant began working for the \nRespondent in February of 2011 and began working as a safety officer for \nthe Respondent in 2014.  As a safety officer, Claimant was responsible for \nchemical and waste disposal, signing waste manifests, and completing and \nsigning annual ADEQ waste reports.  (Resp. Ex. 2, p. 3).  Testimony in the \nrecord reveals that Claimant was exposed to various pesticides as a part of \nhis employment duties.  Upon experiencing unusual symptoms, the \nClaimant sought medical care at the emergency department of his local \nhospital.  Diagnostic testing was performed including a full-body PET scan. \nDuring one of the initial examinations Dr. Patrick Travis, an oncology \nspecialist and Claimant’s authorized physician, specifically asked the \nClaimant “Do you work with chemicals?”  As a result, the Claimant, or \nClaimant’s wife, obtained a partial manifest of chemicals Claimant was in \n\n \nMcKaughan-H303552        5  \n \n \ncontact with.  This information revealed that Claimant’s employment with \nthe Respondent kept him in direct contact with chemicals including methyl \nbromide, thiencarbazone-methyl, diuron, paraquat dichloride, glyphosate, \nbenzovindiflupyr, bifenthrin, and acetochlor.  (Cl. Ex. 2 p. 89).  After \nreviewing this information, Dr. Travis, stated that these are either listed as \n“carcinogens, potential carcinogens, or under investigation [as \ncarcinogens].”  Id.  Methyl bromide is invisible to the naked eye, and an \noutdated soil fumigant.  (Resp. Ex. 1. P. 3).  The Claimant testified in his \ndeposition that five or six bottles of methyl bromide were found on campus, \nand he was tasked with disposing of them.  “Well, one of them was leaking \na little bit, had this foam coming out of it.  And I didn’t have the proper PPE \nat the time, but then I went and got the proper PPE to shut off the valve.”  \nDr. Travis testified that he spoke extensively with the Claimant about the \nClaimant’s position with the Respondent. (Travis Deposition, p. 14).  \nClaimant’s  authorized  physician  and  oncologist,  Dr.  Patrick  Travis \nopined in two separate letters, and in his deposition that Claimant’s exposure \nto  toxins  as  a  result  of  his  employment  with  the  Respondent  caused \nClaimant’s cancers.  In a letter dated November 3, 2023, Dr. Travis stated:  \nAfter visiting with Mr. McKauguan extensively \nand reviewing the chemical exposures he has \n\n \nMcKaughan-H303552        6  \n \n \nhad, it is clear that this was secondary to work \nexposure leading to malignancies.  Mr. \nMcKaughan is at this point completely and \ntotally disabled. He has months of recovery from \nhis nearly life-ending treatment, a treatment \nrequired because of his dual malignancies.  \nThese malignancies will define his life for the \nforeseeable future. \nAnd further: “I want to state again, had Mr. McKaughan not spent such \nan extensive time  exposed  to  these  carcinogenic  chemicals  this  would  not \nhave happened” \nIn his deposition, Dr. Travis unequivocally stated:  \nI think that having two separate clones, two \nseparate B-cell clones that likely became \nmalignant in close proximity to each other, that it \nwas some toxin exposure that led to that.  I think \nit would be unlikely to find a case where you \nwould support that it was just a de novo \noccurrence. \nFinally, in a February 19, 2024 letter, Dr. Travis stated: \n\n \nMcKaughan-H303552        7  \n \n \nMr. McKaughan developed two aggressive B-\ncell malignancies.  They were diagnosed \nsimultaneously and the speed with which they \nwere progressing suggests that they occurred at \nthe same time.  The development of both at the \nsame time makes an outside exposure inciting \ncarcinogenesis likely.  No one else in his family \nor close proximity developed a malignant \nprocess.  Therefore, it would not be an exposure \ncommon to the household.  Mr. McKaughan \nworked with a series of toxic chemicals at the \ntime of development of these malignancies.  It is \nmy medical opinion that these exposures led to \nthe development of his malignancies.  For many \nyears there was an ongoing battle over \ncigarettes being a cause for lung carcinoma.  \nThe questions were raised as to how you could \nprove that these patients, who smoked, did not \nhave other exposures. Intuitive reasoning and \ncommon sense lead us to realize that cigarettes \n\n \nMcKaughan-H303552        8  \n \n \nwere directly linked to lung cancer long before it \nwas accepted as true. \nRespondent acquired an independent medical examination \n(hereinafter referred to as “IME”) of the Claimant’s medical records by Dr. \nHenry Simmons, Jr. a toxicologist.  The purpose of this IME was to evaluate \nthe toxicological causation opinions rendered by Dr. Travis regarding the \nClaimant’s death.  As a toxicologist, Dr. Simmons found that “the etiology of \nhis concomitant multiple myeloma and chronic lymphocytic leukemia is \nunknown and that to link it to workplace chemical exposure as described in \nthe materials that I reviewed is speculation.”  \n As stated above, the ALJ found that the Claimant did not prove by a \npreponderance   of   the   evidence   that   he   sustained   a   compensable \noccupational disease in the form of cancer and therefore was not entitled to \nmedical treatment, temporary total disability, and benefits under Ark. Code \nAnn.  §  11-9-527.  Following  this  decision,  a  Notice  of  Appeal  was  filed  on \nbehalf of the Claimant.  \n2. Adjudication \na. The Claimant proved by a preponderance of the evidence that \nhe sustained a compensable occupational disease in the form \n\n \nMcKaughan-H303552        9  \n \n \nof cancer as a result of his employment with the Respondent, \nwith Claimant’s last exposure being January 27, 2023.  \nAn Occupational Disease means “any disease that results in \ndisability or death and arises out of and in the course of the occupation or \nemployment of the employee or naturally follows or unavoidably results \nfrom an injury.”  Ark. Code Ann. § 11-9-601(e)(1)(A).  A causal connection \nbetween the occupation or employment and the occupational disease must \nbe established by a preponderance of the evidence.  Ark. Code Ann. § 11-\n9-601(e)(1)(B).  \nWhen  medical  opinions  conflict,  the  Commission  may  resolve  the \nconflict based on the record as a whole and reach the result consistent with \nreason,  justice,  and  common  sense.  Barksdale  Lumber  v.  McAnally,  262 \nArk. 379, 557 S.W.2d 868 (1977).  It is within the Commission’s province to \nweigh  all  of  the  medical  evidence  and  to  determine  what  is  most  credible. \nMinnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nIn the case at hand, two very conflicting medical opinions are given.  \nDr. Travis was Claimant’s oncologist throughout the Claimant’s cancer \ndiagnosis and stated that Claimant’s multiple myeloma and chronic \nlymphocytic leukemia were not naturally occurring dual malignancies and \nboth cancers were rare.  Dr. Travis is a practicing oncologist who oversaw \n\n \nMcKaughan-H303552        10  \n \n \nall of Claimant’s treatment and understands the current oncological \ninterpretation of multiple myeloma and lymphocytic leukemia.  Further, Dr. \nTravis was aware of all of Claimant’s medical history as a result of being the \nClaimant’s authorized physician and was also thoroughly familiar with the \nClaimant’s position with the Respondent.  As a result, Dr. Travis was in the \nbest position to and can credibly determine whether Claimant’s cancers \nwere the result of his employment with the Respondent.  Dr. Travis \nexplained in his deposition that the Claimant’s multiple myeloma and \nlymphocytic leukemia were not the result of regular environmental \nexposure, smokeless tobacco, age, or genetics and instead resulted from \nhis exposure to dangerous chemicals at his place of employment with the \nRespondent.  Therefore, I find that Dr. Travis’s medical opinion should be \ngiven more weight, and that Claimant was exposed to the specific \ncarcinogens listed above in the course and scope of his employment with \nthe Respondent.  \nFurther, I find that Dr. Travis’s medical opinion provides a sufficient \ncausal connection between Claimant’s multiple myeloma and lymphocytic \nleukemia and his employment with the Respondent. Therefore, I find that \nClaimant proved by a preponderance of the evidence that he sustained a \n\n \nMcKaughan-H303552        11  \n \n \ncompensable occupational disease as a result of his employment with the \nRespondent.  \nb. As a natural consequence of proving by a preponderance of the \nevidence that Claimant sustained a compensable occupational \ndisease, Claimant is therefore entitled to medical treatment for \nhis of such occupational disease.  \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).  What constitutes reasonable and necessary medical \ntreatment is a question of fact for the Commission.  White Consolidated \nIndus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  \nThe Arkansas Court of Appeals has held a claimant may be entitled \nto additional medical treatment even after the healing period has ended, if \nsaid treatment is geared toward management of the injury.  See Patchell v. \nWal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); Artex \nHydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  \n\n \nMcKaughan-H303552        12  \n \n \nSuch services can include those for the purpose of diagnosing the nature \nand extent of the compensable injury; reducing or alleviating symptoms \nresulting from the compensable injury; maintaining the level of healing \nachieved; or preventing further deterioration of the damage produced by the \ncompensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 \nS.W.2d 593 (1995); Artex, supra. \n As  Claimant  passed  away  on  December  11,  2023,  and  giving  due \nconsideration to the evidence in the record, I find that Claimant’s medical \ntreatment for his compensable occupational disease from January 27, 2023, \nuntil the date of his death was reasonable and necessary.  \nc. The Claimant proved by a preponderance of the evidence that \nhe is entitled to temporary total disability benefits as a result of \nhis compensable occupational disease.  \nTemporary   total   disability   benefits   are   appropriate   where   the \nemployee  remains  in  the  healing  period  and  is  totally  incapacitated  from \nearning wages.  Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981). \nDr. Travis saw Claimant on February 20, 2023 for an assessment of \nClaimant’s occupational disease.  At  that  time,  Dr.  Travis  determined  that \nClaimant  was  unable  to  continue  working  due  to  his  occupational  disease \n\n \nMcKaughan-H303552        13  \n \n \nand  filled  out  the  “Certification  of  Health  Care  Provider  for  Employee’s \nSerious Health Condition under the Family and Medical Leave Act.” (Cl. Ex. \n1., p. 8).  Dr. Travis certified that Claimant’s condition started on February 6, \n2023, and would last until the life of the Claimant. \nTherefore, I find that Claimant proved by a preponderance of the \nevidence that he is entitled to temporary total disability benefits from \nFebruary 6, 2023, until the date of his passing on December 11, 2023.  In \nthe event the Respondent paid temporary total disability benefits, or salary \npayments for this period, the Respondent should be given an offset for \nthose amounts. \nd. The Claimant has proved by a preponderance of the evidence \nthat he is entitled to benefits under Ark. Code Ann. § 11-9-527 \nas he sustained a compensable occupational disease.  \nArk. Code Ann. § 11-9-527 states that if death results from an injury \nthe employer shall pay the actual funeral expenses, not exceeding the sum \nof six thousand dollars ($6,000). As a result of Claimant’s compensable \noccupational disease, he passed on December 11, 2023.  Therefore, I find \nthat Claimant proved by a preponderance of the evidence that he is entitled \nto  benefits  under  Ark.  Code  Ann.  §  11-9-527  in  relation  to  his  funeral \nexpenses.  \n\n \nMcKaughan-H303552        14  \n \n \nAdditional  benefits  under  Ark.  Code  Ann.  §  11-9-527  being  weekly \nbenefits to a widow, children, or other listed relatives following a determinacy \nof  dependency  on  the  Claimant’s  income.   A  determination  as  to  the \nbeneficiaries who were wholly and actually dependent on the Claimant and \nentitled to such additional benefits under Ark. Code Ann. § 11-9-527 must be \nmade.  Therefore, I would remand this issue back to the ALJ.  \ne. The Claimant’s attorney is entitled to an attorney’s fee as a \nresult of these findings.  \nFor prevailing on this appeal before the Full Commission, Claimant’s \nattorney  is  entitled  to  fees  for  legal  services in  accordance  with  Ark.  Code \nAnn.  §11-9-715  (Repl.  2012),  including  a  fee  on  the  entire  temporary  total \ndisability benefits awarded.  For prevailing on appeal to the Full Commission, \nthe Claimant’s attorney is entitled to an additional fee of five hundred dollars \n($500), pursuant to Ark. Code Ann. §11-9-715(b) (Repl. 2012). \nFor the reasons stated above, I respectfully dissent. \n                                                                               \n______________________________ \n                                                             M. SCOTT WILLHITE, Commissioner","textLength":18139,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303552 KYLE McKAUGHAN, EMPLOYEE CLAIMANT U OF A DIVISION OF AGRICULTURE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 6, 2024 Upon review before the FULL COMMISSION in Lit...","outcome":"granted","outcomeKeywords":["remanded:1","granted:6"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:44.796Z"},{"id":"alj-H302993-2024-11-06","awccNumber":"H302993","decisionDate":"2024-11-06","decisionYear":2024,"opinionType":"alj","claimantName":"Cory Sullivan","employerName":"Actionpaq","title":"SULLIVAN VS. ACTIONPAQ AWCC# H302993 November 06, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SULLIVAN_CORY_H302993_20241106.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SULLIVAN_CORY_H302993_20241106.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H302993 \n \nCORY SULLIVAN, Employee                                                                         CLAIMANT \n \nACTIONPAQ, Employer                                                                           RESPONDENT \n \nTRAVELERS INSURANCE COMPANY, Carrier                                      RESPONDENT                                                                                                   \n \n \n OPINION FILED NOVEMBER 6, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by LAURI THOMAS, Attorney, Springdale, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On October 9, 2024, the above captioned claim came on for hearing at Springdale, \nArkansas.    A  pre-hearing  conference  was  conducted  on August  15,  2024 and  a  pre-\nhearing order was filed on August 19, 2024.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The claimant sustained a compensable injury to his back on April 26, 2023. \n 3.     The claimant was earning sufficient wages to entitle him to compensation at \nthe weekly rates of $440.00 for total disability benefits and $330.00 for permanent partial \ndisability benefits. \n\nSullivan – H302993 \n 2 \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Compensability of injury to claimant’s cervical spine on April 26, 2023. \n2. Temporary total disability benefits from date last paid to a date yet to be  \ndetermined. \n3. Related medical. \n4. Attorney’s fee. \n The claimant’s contentions are set forth in his pre-hearing questionnaire which is \nattached to Commission Exhibit #1 as Exhibit #1. \n The respondents contend the claimant did not injure his cervical spine on April 26, \n2023.  He is not entitled to additional temporary total disability benefits.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non August 15, 2024 and contained in a pre-hearing order filed August 19, 2024 are hereby \naccepted as fact. \n 2. Claimant  has failed  to  prove  by  a  preponderance  of  the evidence  that  he \nsuffered a compensable injury to his cervical spine on April 26, 2023. \n 3. Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to temporary total disability benefits from April 27, 2023 through May \n\nSullivan – H302993 \n \n3 \n \n22,  2023,  as  a  result  of  his  compensable  low  back  injury.    Pursuant  to  A.C.A.  §11-9-\n110(d)(1)  up  to  25%  of  these  temporary  total  disability  benefits  are  to  be  withheld  for \nsatisfaction of claimant’s child support obligations. \n 4.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to additional medical treatment recommended by Dr. Blankenship.  This \nincludes physical therapy and a referral to Dr. Cannon. \n 5.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits.  \n \n FACTUAL BACKGROUND \n The  claimant  has  a  history  of  physical  problems  involving  his  cervical  spine \nfollowing a motor vehicle accident in 2011.  After receiving some chiropractic treatment, \nclaimant came under the care of Dr. Tonymon who performed disc replacement surgery \non October 15, 2020, at the C5-6 and C6-7 levels.  According to claimant’s testimony he \nwas subsequently released by Dr. Tonymon and after some period of time was able to \nperform activities without limitation.   \n Claimant  began  working  for  respondent  in  March  2022.    On  April  26,  2023,  the \nclaimant  was  in  the  process  of  readjusting  a  shelf  in  order  to  fit  a  crate  on  it.    While \nperforming this readjustment a beam popped out and claimant testified “I fell straight \ndown  between  a  crate  and  the  side  of  the  rack.”    Claimant  testified  that  he  fell \napproximately 7 to 7 ½ feet and stated that he hit the back of his head on beams as he \nwas falling.   \n Claimant  testified  that  after  this  incident  he  had  pain  in  his  back  and  his  head.  \n\nSullivan – H302993 \n \n4 \n \nClaimant  was  taken  to  the  emergency  room  at  Mercy  on  April  26,  2023 where  he \nunderwent CT  scans  from  his  head  down  to  his  pelvis.    Claimant  was  diagnosed  as \nsuffering  from  fractures  of  the  L1  and  L2  transverse  processes.    Claimant  was  given \nmedication in the form of Hydrocodone and instructed to receive follow-up care with his \nneurosurgeon.   \n Although claimant was released to return to work he testified that he was unable \nto do so and he eventually returned to see Dr. Tonymon on May 22, 2023.  With respect \nto claimant’s lumbar fractures, Dr. Tonymon indicated that no treatment was necessary \nand claimant should return to his office as needed.  Dr. Tonymon also gave claimant an \noff-work slip from April 26, 2023 through May 22, 2023.   \n Thereafter, claimant returned to Dr. Tonymon on September 5, 2023, complaining \nof neck pain as well as low back pain.  Dr. Tonymon again indicated that no treatment \nwas necessary for claimant’s transverse processes fractures, but stated that if claimant’s \nlow back pain persisted he should undergo an MRI scan to assess for further etiology.  \nWith respect to claimant’s neck pain, Dr. Tonymon indicated he had personally reviewed \na  cervical x-ray dated May  22,  2023 and it was essentially unchanged from claimant’s \nprior x-rays in October 2022.   \n Thereafter,   claimant   filed   for   and   received   a   change   of   physician   to   Dr. \nBlankenship who evaluated claimant on April 1, 2024.  With respect to claimant’s cervical \nspine,  Dr.  Blankenship  ordered  an  x-ray  which  according  to  his  report  indicated  that \nclaimant’s implant at C5-6 had completely failed.  Dr. Blankenship ordered MRI scans of \nboth the claimant’s lumbar and  cervical  spines.    He  also  recommended  that  claimant \nundergo physical therapy for his lumbar spine. \n\nSullivan – H302993 \n \n5 \n \n An MRI scan of claimant’s lumbar spine dated May 31, 2024 revealed a small disc \nherniation at the L5-S1 level and multilevel facet arthropathy most significant at L3-4 and \nL4-5.    Following  this  MRI  scan, Dr.  Blankenship  in  a  report  dated  June  6,  2024 \nrecommended  that  claimant  see  Dr.  Cannon  for  a  possible  facet  injection.    He  also \nordered  physical  therapy.    The  medical  records  indicate  that  claimant  began  physical \ntherapy on June 25, 2024, and completed it on July 31, 2024.   \n The last medical report from Dr. Blankenship is dated September 23, 2024.  In that \nreport  he  notes that  claimant  did  receive  some  relief  from  the  physical  therapy  and \nrecommended that he receive additional physical therapy. \n Respondent accepted as compensable an injury to claimant’s lumbar spine and \nhas paid some compensation benefits.  Claimant has filed this claim contending that he \nsuffered  a  compensable  injury  to  his  cervical  spine  on  April  26,  2023.    He  also  seeks \npayment  of  temporary  total  disability  benefits,  payment  of  medical  benefits,  and  a \ncontroverted attorney fee. \n \nADJUDICATION \n Initially, claimant contends that in addition to his lumbar spine injury on April 26, \n2023, he also suffered a compensable injury to his cervical spine.  Claimant’s claim is for \na  specific  injury  identifiable  by  time  and  place  of  occurrence.    In order  to  prove  a \ncompensable injury as the result of a specific incident that is identifiable by time and place \nof occurrence, a claimant must establish by a preponderance of the evidence (1) an injury \narising out of and in the course of employment; (2) the injury caused internal or external \nharm to the body which required medical services or resulted in disability or death; (3) \n\nSullivan – H302993 \n \n6 \n \nmedical evidence supported by objective findings establishing an injury; and (4) the injury \nwas caused by a specific incident identifiable by time and place of occurrence.  Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to prove by a preponderance of \nthe evidence that he suffered a compensable injury to his cervical spine on April 26, 2023. \n In support of his contention that he suffered a compensable injury, claimant relies \nsignificantly on the opinion of Dr. Blankenship.   As previously noted, claimant obtained a \nchange  of  physician  to  Dr.  Blankenship  and  was evaluated  by  him  on  April  1,  2024.  \nNotably,  this  was  almost  one  year  after  the  claimant’s  fall  on  April  26,  2023.    Dr. \nBlankenship performed x-rays in his office on that date and stated: \n \n  The patient has undergone artificial disc placement at \n  C5-6 and C6-7.  There is marked subsidence through \n  both implants.  The implant at C6-7 still appears to be \n  somewhat functional, although there appears to be an \n  autofusion posteriorly.  The implant at C5-6 has com- \n  pletely failed with the posterior portion driven up into \n  the vertebral body.   (Emphasis added.) \n \n \n Dr. Blankenship went on to state that claimant had undergone no structural studies \nof the cervical spine since his injury and as a result ordered an MRI scan.  In response to \nrespondent’s denial of the claimant’s cervical complaints, Dr. Blankenship authored  a \nletter dated May 16, 2024, indicating that although the claimant had a previous surgery, \nit was his opinion that claimant’s current complaints and need for treatment of his neck \nwas related to the injury at work due to a shelf hitting claimant on top of the head.  Dr. \nBlankenship reiterated this opinion in a subsequent report dated June 6, 2024.   \n\nSullivan – H302993 \n \n7 \n \n First, I note that Dr. Blankenship bases his opinion in part on the fact that it was \nhis belief that a shelf hit claimant on top of the head during the fall.  However, claimant \nacknowledged that he does not know if anything hit him in the head or not during his fall.  \nMore importantly, I note that when claimant sought medical treatment from the emergency \nroom on the day of the accident on April 26, 2023, he specifically denied any neck pain.  \nFurthermore, the physical exam portion of that report states the following: \n   \n  Cervical back:  Normal range of motion and neck \n  supple. \n  Comments:  Few scattered abrasions to the back. \n  Has lower lumbar tenderness.  No midline thoracic \n  or cervical tenderness.  (Emphasis added) \n \n \n In  addition,  despite  Dr.  Blankenship’s  belief  that  claimant  had  undergone  no \nstructural  studies  of  his  cervical  spine since  the  injury,  the  emergency  room  report \nindicates that claimant did in fact undergo a CT scan of multiple body parts from his head \nto his pelvis, including a CT scan of his cervical spine.  That CT scan was read as showing \nno cervical spine abnormality. \n  IMPRESSION:  No acute C-spine abnormality is \n  Identified. \n \n \n As  previously  noted, on  May  22,  2023 claimant sought  additional  medical \ntreatment  from  Dr.  Tonymon, the physician  who  had  previously  performed  surgery  on \nclaimant’s cervical spine.  Although  claimant  did  report  back  pain  to  Dr.  Tonymon, his \nreport indicates that claimant reported “no neck pain”.  Furthermore, Dr. Tonymon’s \nphysical examination report indicates that claimant had a normal range of motion of his \ncervical spine.  Also on that date, Dr. Tonymon did order an x-ray of claimant’s cervical \n\nSullivan – H302993 \n \n8 \n \nspine with the following findings: \n  Disc prostheses are present at C5-6 and C6-7.  The \n  cervical vertebral bodies are normally aligned.  No \n  subluxation is present with flexion/extension, no \n  fractures are identified.  (Emphasis added.) \n \n \n It  was  not  until  claimant  returned  to  Dr.  Tonymon  on  September  5,  2023,  more \nthan four months after his accident, that he began complaining of cervical spine pain to a \nphysician.    In  his  report  of  that  date,  Dr.  Tonymon notes  that  he  personally  reviewed \nclaimant’s x-rays from May 22, 2023 and those x-rays were essentially unchanged from \nprior x-rays following claimant’s surgical procedure in October 2020. \n Given this evidence, I find that Dr. Blankenship’s opinion is entitled to little weight \nunder the circumstances.  Contrary to his findings on an x-ray taken almost a year after \nclaimant’s accident which apparently shows a completely failed implant at the C5-6 level, \nthe evidence indicates that claimant not only denied neck pain following his accident on \nApril 26, 2023, but a CT scan taken on that date showed no abnormality.  Thereafter, x-\nrays were taken of the claimant’s cervical spine on May 22, 2023, and did not have any \nindication  of  broken  hardware  as  seen  by  Dr.  Blankenship.    Dr.  Tonymon  specifically \nstated in his report of September 5, 2023, that he had personally reviewed the x-rays from \nMay 22, 2023 and they were essentially unchanged from claimant’s prior x-rays following \nthe surgery in October 2020.  Therefore, to the extent that claimant has an implant at C5-\n6 that has completely failed, I do not find that that condition is related to the claimant’s \naccident on April 26, 2023. \n Further, with respect to this issue, I note that claimant testified that he did not have \nany pain in his neck prior to the fall on April 26, 2023, and that he was not receiving any \n\nSullivan – H302993 \n \n9 \n \nmedical treatment for his neck prior to that time.  However, claimant acknowledged that \nhe  was  taking  the  medication  Nabumetone and had  been  taking  that medication  since \n2020 for his neck injury.  Claimant acknowledged that he had refilled this medication on \nApril 18, 2023, just before his fall on April 26.  Claimant was then asked the following: \n   \n  Q Why were you still taking medicine then if it wasn’t \n  bothering you?  \n \n  A I have to take that medicine daily.  Nabumetone is \n  just – it’s a self-proclaimed Ibuprofen.  I have to take it \n  for pain and inflammation, and if I don’t, I get even worse. \n \n  Q So when Dr. Blankenship says you weren’t getting \n  any treatment and you weren’t having any problems before \n  April 26 of ’23, that’s not right; is it? \n \n  A If I’m taking medication I’ve been prescribed since \n  the surgery that I have to be on long-term, I don’t feel like \n  that’s being treated.  It’s the same as someone who takes \n  like anxiety medicine or something.  It’s a necessary thing. \n  (Emphasis added.) \n \n \n Clearly,  taking  medication  for  pain  and  inflammation  in  the  cervical  spine  is \ntreatment and as acknowledged by claimant, he refilled a prescription for this medication \njust a few days prior to the fall. \n In short, claimant has the burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his cervical spine as a result of the fall on April \n26, 2023.  On the day of his fall claimant was seen at the emergency room and denied \nany neck pain.  Likewise, when he was initially evaluated by Dr. Tonymon, a physician he \nhad previously seen for cervical problems, he again denied any neck pain.  A CT scan \nwas taken of the claimant’s cervical spine on April 26, 2023, and was read as showing no \n\nSullivan – H302993 \n \n10 \n \nabnormality.    Likewise,  an  x-ray taken of claimant’s cervical spine on May 22, 2023 \nrevealed  no  abnormality  and  this  x-ray  was  personally  reviewed  by  Dr.  Tonymon  who \nopined that there was no significant difference in the May 2022 x-ray and x-rays taken \nafter claimant’s surgical procedure in 2020.  To the extent that x-rays  taken  by  Dr. \nBlankenship  almost  one  year  after  the  surgery  show  a  failed  implant  at  C5-6,  those \nfindings were not present immediately after claimant’s accident and I find that claimant \nhas failed to prove by a preponderance of the evidence that he suffered a compensable \ninjury or that those findings present on Dr. Blankenship’s x-ray are causally related to the \nfall that occurred on April 26, 2023.  Therefore, I find that claimant has failed to meet his \nburden of proof. \n I do find that claimant has met his burden of proving by a preponderance of the \nevidence that he is entitled to temporary total disability benefits beginning April 27, 2023 \nthrough May 22, 2023.  Claimant sought medical treatment from Dr. Tonymon, and he \ngave claimant an off-work slip which he backdated to the date of claimant’s injury.  He \ncontinued claimant’s inability to work through May 22, 2023.  I find that claimant remained \nwithin  his  healing  period  and  that  he  suffered  a  total  incapacity  to  earn  wages  for  his \ncompensable  low  back  injury  based  upon  this  opinion  of  Dr.  Tonymon.    Claimant  is \nentitled  to  temporary  total  disability  benefits  beginning  April  27,  2023  and  continuing \nthrough May 22, 2023.   \n Claimant  acknowledged  at  the  hearing  that  he  is  past  due  on  child  support.  \nAccordingly, pursuant to A.C.A. §11-9-110(d)(1), up to 25% of claimant’s temporary total \ndisability benefits are to be withheld for satisfaction of claimant’s child support obligations. \n I also find that claimant has met his burden of proving by a preponderance of the \n\nSullivan – H302993 \n \n11 \n \nevidence that he is entitled to additional medical treatment for his compensable lumbar \nspine injury.   \n As  previously  noted,  claimant  returned  to  see  Dr.  Tonymon  for  his  low  back \ncomplaints.    Dr.  Tonymon  was  of  the  opinion  that  no  treatment  was  necessary  for \nclaimant’s transverse process fractures.  However, in his report of September 5, 2023, \nDr. Tonymon stated that if claimant’s low back pain persisted he should undergo an MRI \nscan  to  assess  the  etiology  of  his  complaints.    Claimant  subsequently  sought  medical \ntreatment as a result of the change of physician from Dr. Blankenship and he did order \nan MRI scan of claimant’s lumbar spine.  That MRI scan was performed on May 31, 2024, \nand  revealed  a  small  disc  herniation  at  the  L5-S1  level  as  well  as  multi-level  facet \narthropathy at  L3-4  and  L4-5.    Dr.  Blankenship  subsequently  recommended  physical \ntherapy  which provided claimant  some  benefit.    Dr.  Blankenship  recommended  that \nclaimant  undergo  additional  physical  therapy  and  also  recommended  that  he  saw  Dr. \nCannon for a possible facet injection.  As of the time of the hearing, the evaluation by Dr. \nCannon and additional physical therapy had not been accepted by respondent.  I find that \nclaimant has met his burden of proving by a preponderance of the evidence that he is \nentitled  to  additional  medical  treatment  for  his  compensable  low  back  injury  as \nrecommended by Dr. Blankenship in the form of physical therapy and an evaluation by \nDr. Cannon. \n  \nAWARD \n Claimant has failed to prove by a preponderance of the evidence that he suffered \na compensable injury to his cervical spine on April 26, 2023.  Claimant has proven by a \n\nSullivan – H302993 \n \n12 \n \npreponderance  of  the  evidence  that  he  is  entitled  to  temporary  total  disability  benefits \nbeginning April 27, 2023 and continuing through May 22, 2023, for his compensable low \nback injury.   Up to 25% of claimant’s temporary total disability benefits are to be withheld \nfor payment of claimant’s child support obligation.  Claimant has also met his burden of \nproving  by  a  preponderance  of  the  evidence  that  he  is  entitled  to  additional  medical \ntreatment as recommended by Dr. Blankenship. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable  to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $507.14. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n       ________________________________ \n        GREGORY K. STEWART \n        ADMINISTRATIVE LAW JUDGE","textLength":21286,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302993 CORY SULLIVAN, Employee CLAIMANT ACTIONPAQ, Employer RESPONDENT TRAVELERS INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED NOVEMBER 6, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas. Cla...","outcome":"granted","outcomeKeywords":["granted:4","denied:1"],"injuryKeywords":["back","cervical","lumbar","neck","thoracic"],"fetchedAt":"2026-05-19T22:46:13.195Z"},{"id":"alj-H304357-2024-11-06","awccNumber":"H304357","decisionDate":"2024-11-06","decisionYear":2024,"opinionType":"alj","claimantName":"Harrison Chaisson","employerName":"Criterion Energy LLC","title":"CHAISSON VS. CRITERION ENERGY LLC AWCC# H304357 November 06, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CHAISSON_HARRISON_H304357_20241106.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CHAISSON_HARRISON_H304357_20241106.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H304357 \n \nHARRISON CHAISSON,  Employee                                                            CLAIMANT \n \nCRITERION ENERGY LLC, Employer                                                    RESPONDENT                                                              \n \nLIBERTY MUTUAL INSURANCE CO., Carrier                                       RESPONDENT \n \n \n OPINION/ORDER FILED NOVEMBER 6, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by ZACHARY RYBURN,  Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On May 9, 2024, claimant filed Form AR-C alleging an injury to his right shoulder, \nright elbow, and other parts of his body.  Respondent accepted the claim as compensable \nand  paid  some  compensation  benefits.    Thereafter,  on  April  30,  2024,  Attorney  Laura \nBeth York’s Motion to Withdraw as Counsel was granted by the Full Commission.  Since \nthat  time,  claimant  has  not  corresponded  with  the  Commission  or  taken  any  action  to \nprosecute his claim. \nOn September 6, 2024, respondent filed a motion to dismiss this claim for failure \nto prosecute.  A hearing was scheduled on the respondent’s motion for October 30, 2024 \nand notice of that hearing was sent to claimant by certified mail.  The notice was delivered \n\nChaisson – H304357 \n \n2 \n \nto  the  claimant  on  October  4,  2024.  Claimant has not responded to the respondent’s \nmotion and did not appear at the hearing. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nMotion  to  Dismiss should  be  and  hereby  is  granted.    This  dismissal  is  pursuant  to \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2191,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304357 HARRISON CHAISSON, Employee CLAIMANT CRITERION ENERGY LLC, Employer RESPONDENT LIBERTY MUTUAL INSURANCE CO., Carrier RESPONDENT OPINION/ORDER FILED NOVEMBER 6, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:46:15.312Z"},{"id":"alj-H306957-2024-11-05","awccNumber":"H306957","decisionDate":"2024-11-05","decisionYear":2024,"opinionType":"alj","claimantName":"Cherie Bolton","employerName":"Marck Industries","title":"BOLTON VS. MARCK INDUSTRIES AWCC# H306957 November 05, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BOLTON_CHERIE_H306957_20241105.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOLTON_CHERIE_H306957_20241105.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H306957 \n \nCHERIE BOLTON, Employee      CLAIMANT \n \nMARCK INDUSTRIES, Employer      RESPONDENT \n \nGALLAGHER BASSETT SERVICES, AMERICA Carrier/TPA  RESPONDENT \n \n \n OPINION FILED NOVEMBER 5, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Russellville, Pope \nCounty, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by JON P. ROBINSON, Attorney at Law, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn December  6,  2023,  the  claimant’s  attorney, Laura  Beth  York,  filed  an  AR-C \nrequesting  various  compensation  benefits  in  which she  alleged  injuries  to her right  knee on  or \nabout October 16, 2023. The claim was denied in its entirety.  \nOn May  10,  2024, Ms.  York filed  a  Motion  to  Withdraw  as  Counsel,  which  the  Full \nCommission granted on June 25, 2024. No further action was taken regarding this claim. \n On August 20, 2024, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of  prosecution. A hearing  was scheduled  for October 29, 2024. Notice of \nthat hearing was sent to the claimant by certified mail, return receipt requested on September 26, \n2024. United States Postal Department records indicate that claimant received and signed for the \nnotice  on September  30,  2024.  Despite  having  received  notice  of  the  scheduled  hearing,  the \n\nBolton – H306957 \n \n-2- \nclaimant  failed  to  appear  at  the  hearing  and  has  failed  to  respond  to  the  motion  in  any  form  or \nmanner. \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2578,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H306957 CHERIE BOLTON, Employee CLAIMANT MARCK INDUSTRIES, Employer RESPONDENT GALLAGHER BASSETT SERVICES, AMERICA Carrier/TPA RESPONDENT OPINION FILED NOVEMBER 5, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope County, ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2","denied:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:46:06.996Z"},{"id":"alj-H300528-2024-11-05","awccNumber":"H300528","decisionDate":"2024-11-05","decisionYear":2024,"opinionType":"alj","claimantName":"Scott Diederich","employerName":"Transco Lines, Inc","title":"DIEDERICH VS. TRANSCO LINES, INC. AWCC# H300528 November 05, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DIEDERICH_SCOTT_H300528_20241105.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DIEDERICH_SCOTT_H300528_20241105.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H300528 \n \nSCOTT DIEDERICH, Employee CLAIMANT \n \nTRANSCO LINES, INC., Employer RESPONDENT \n \nNATIONAL INTERSTATE INS. CO, Carrier RESPONDENT \n \n OPINION FILED NOVEMBER 5, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Russellville, Pope \nCounty, Arkansas. \n \nClaimant represented by DANIEL E. WREN, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On August  8,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at Russellville, \nArkansas.   A pre-hearing conference was conducted on May 20, 2024, and a Pre-hearing Order \nwas  filed  on May  21,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on January \n8, 2023. \n 3. The respondents have controverted the claim in its entirety. \n 4. The  claimant  was  earning  sufficient  wages  to  entitle him to  compensation  at  the \nweekly rates of $835.00 for temporary total disability benefits and $626.00 for permanent partial \ndisability benefits. \n\nDiederich – H300528 \n \n-2- \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  his  left  shoulder,  left  knee,  and \nleft hip on or about January 8, 2023. \n 2. Whether Claimant is entitled to medical treatment for his left shoulder injury. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  January  9, \n2023, to June 24, 2024, less eight weeks when the claimant worked as a truck driver. \n 4. Whether Claimant’s attorney is entitled to an attorney fee.  \n The claimant's contentions are as follows: \n“The   Claimant   was   an   over   the   road   truck   driver   for   the \nRespondent employer, Transco Lines, when on January 8, 2023, he \nwas  cleaning  out  the  cab  of  his  18-wheeler  when  he  slipped  and \nfell from the cab onto the truck stop parking lot. \n \nAs a result of the fall, the Claimant suffered injuries to his left hip, \nleft shoulder,  and left knee and has been unable to work since the \ndate of the incident.” \n \n The respondents’ contentions are as follows: \n“The  claimant  allegedly  injured  his  left  knee,  left  hip  and  left \nshoulder  on  1-8-23  due  to  his  job  as  a  truck  driver.  The  tests \nfollowing  the  incident  were  all  negative  for  an  acute  injury.  The \nclaimant had a left total shoulder replacement in April 2024 that is \nnot the result of anything that happened in January 2023.” \n \n The  claimant  in  this  matter  is  a 63-year-old  male who  alleged  to  have  sustained \ncompensable injuries to his left shoulder, left knee, and left hip on or about January 8, 2023. The \nclaimant’s  attorney  was  asked  about  the  extent  of  his  request  for  benefits  regarding  the \nclaimant’s injuries by this administrative law judge at the initiation of the hearing in this matter. \nFollowing is that exchange: \n THE  COURT:  Thank  you.  The  Respondent  Employer  is \nTransco  Lines,  Incorporated.  The  Claimant  is  represented  by  Mr. \n\nDiederich – H300528 \n \n-3- \nWren, Mr. Daniel Wren, and the Respondent is represented by Mr. \nMike Ryburn and we are here today for a full hearing. \n \n I have before me a Prehearing Order that was filed May the \n21\nst\n of 2024. That Order was signed by myself and I have marked \nit as Commission Exhibit 1. \n \n In  talks  with  both  parties  prior  to  going  on  the  record,  we \ndetermined that an alteration needed to be made to my Prehearing \nOrder. Issue No. 3 now reads, ‘Whether the Claimant is entitled to \ntemporary total disability benefits from January 9, 2023 to June 24, \n2024,  less  eight  weeks  when  the  Claimant  worked  as  a  truck \ndriver.” \n \n MR.  WREN:  Your  Honor,  the  hip  and  knee,  we  are  not \nasking for treatment on those. It’s really just the left shoulder, so \nyou can actually subtract the left hip and knee. \n \n THE  COURT:  Even  as  to  compensability  at  this  point  or \nno? \n \n MR.    WREN:    We    will    leave    them    in    just    for \ncompensability, yes. \n \n THE COURT: But you want them out for treatment? \n \n MR. WREN: Yes, That is correct. \n \n THE COURT: So just the left shoulder for treatment? \n \n MR. WREN: Yes. \n \n The  claimant  has  made  clear  he  is  not  asking  the  Commission  to  decide  any  benefits \nrelated  to  the  alleged  left  knee  or  left  hip  injury. Given  the  position that  the  claimant  has  taken \nthis  administrative  law  judge  will  not  make  any  determination  involving  those  body  parts \nbecause  a  determination  without  a  benefit  request  to  a  body  part  alleged  to  have  been  injured \nwould be advisory in nature. Going forward this administrative law judge will only consider the \nclaimant’s left shoulder injury which he alleges is compensable and, if so, he alleges entitlement \nto medical treatment and temporary total disability benefits.  \n\nDiederich – H300528 \n \n-4- \n The  claimant  in  this  matter  was  working  for  the  respondent  as  an  over-the-road  truck \ndriver. The claimant at that time had a Class A CDL license to operate said vehicle. However, his \nmedical  card,  which  was  also  required  to  operate  a  semi  tractor-trailer,  was  set  to  expire  on \nJanuary  7,  2023.  The  claimant  testified  that  he  made  the  respondent  aware  of  this  situation  a \nweek prior to his medical card expiring. The claimant testified that he continued to drive, but on \nJanuary 7, 2023, at midnight he stopped because of his expired medical card.  \n The  claimant  stopped  driving  near  a  truck  stop  and  parked  his  semi  tractor-trailer.  The \nclaimant  testified  that  the  respondent  knew  that  he  had  to  stop  driving  because  of  his  expired \nmedical  card.  The  claimant  testified  that  he  was  to  stay  with  the  semi  tractor-trailer  until  a \nreplacement driver arrived at his location to continue his previous assignment. During that down \ntime the claimant decided to clean the truck. Following is his testimony about doing so: \nQ All right. The morning of the 8\nth\n, did you get up before the \nsun had come up? \n \nA Yes. I didn’t sleep well that night, so I was up a lot. But, \nyes, I was up early that day. \n \nQ All right. And did you start cleaning out your cab? \n \nA Yes. I started getting my things together and I was cleaning \nthe cab. \n \nQ Do you carry a little whisk broom with you? \n \nA Yes. \n \nQ So tell me specifically what happened. Describe how you – \ndid you fall out of the cab? \n \nA Yes. \n \nQ All right. How did you come to fall out of the cab? \n \nA Well, I was sweeping the truck out because my stop prior to \n\nDiederich – H300528 \n \n-5- \nthat  had  a  gravel  parking  lot  so  there  is  gravel  in  the  truck.  So  I \nwas   sweeping   that   out   of   the   passenger   door   and   as   I   was \nsweeping,  I  was  backing  up  out  of  the  door  and  I  missed  the  step \nand fell. \n \nQ And did you land on your left side or your right side? \n \nA My left side. \n \nQ And did you feel pain immediately? \n \nA Yes. \n \nQ Where did you feel pain when you fell from the cab? \n \nA My left shoulder, my left hip, and my left knee. \n \nQ Did you notify Transco at some point of this injury? \n \nA Yes.   I   talked   to   my   dispatcher   and   told   them   what \nhappened on the phone. Saben was my dispatcher. I called him. \n \n And  then,  also,  before  I  evacuated  the  truck  on  Tuesday,  I \nsent him a text message to remind him that when I get home I am \ngoing  to  see  my  personal  doctor  to  see if anything  was  seriously \nhurt or not because I was still in quite a bit of pain. \n \nQ All  right.  So  you  had  to  wait  a  couple  of  days  until  the \nreplacement  driver  came  and  took  possession  of  the  truck  and \ntractor from you? \n \nA Yes. Company rule, you can’t abandon a load, so I had to \nstay with the trailer until a driver came and picked up the trailer, so \nthat’s why I was there until Tuesday. \n \nQ And how did you get home from Tennessee to Alabama? \n \nA I had to rent a car and drive home. \n \n When  the  claimant  returned  home,  he  went  to  his  family  physician.  He  was  asked  on \ndirect examination about his initial doctor’s visit as follows: \nQ When you got home, did you see your family physician? \n \n\nDiederich – H300528 \n \n-6- \nA Yes, I did. \n \nQ At  some  point  did  someone  from  either  Transco  or  their \nworkers’ comp carrier call you and tell you you couldn’t see your \nfamily doctor and you had to see someone else? \n \nA Well,  they  instructed  me  that  they  wanted  me  to  see  their \ndoctor. \n \nQ Okay. So who was your family? \n \nA Dr. Shekar, Dr. Chandra Shekar with Pro-Med. \n \nQ All right. And then I have that you went to a place – well, I \ndon’t know if you remember. Do you remember what the name of \nthe place was that they sent you to, the name of the clinic? \n \nA It was Care something. \n \nQ Was it American Family Care? \n \nA Yes. American Family Care, yes, AMC. \n \nThe claimant testified that the respondent denied his claim after a second visit to his doctor who \nhad recommended an MRI of the claimant’s left shoulder.  \n Medical  records  introduced  into  evidence  show  that  the  claimant  was  seen  at  American \nFamily  Care  in  Montgomery,  Alabama,  on  January  23,  2023.  At  that  time,  the  claimant \ncomplained of left shoulder pain. The claimant was diagnosed with an unspecified sprain of the \nleft  shoulder. The  medical  record  is  signed  by  Dr.  Jesse  Austin.  On  January  27,  2023,  the \nclaimant  was  again  seen  at  American  Family  Care.  At  that  time,  Nurse  Practitioner  Edward \nMoore referred the claimant for a left shoulder MRI.  \n On September 7, 2023, the claimant was seen at Regional Medical Clinic Orthopedics in \nGreenville,  Alabama.  At  that  time,  the  claimant complained  of  left  shoulder  pain.  The  claimant \ngave a consistent history of a fall from his truck  in early January of 2023 at which time he had \n\nDiederich – H300528 \n \n-7- \nleft  shoulder  pain.  The  medical  record  from  that  visit  includes  an “Impressions” section  that \nstates, “Cuff tear arthropathy left shoulder, neglected.” That same record is signed by Dr. Gilbert \nHolland.  \n On September 14, 2023, the claimant underwent an MRI of the left shoulder. Following \nare the findings and impressions of that diagnostic test: \nFINDINGS: \nLarge effusion is noted. No os acromiale is seen. The acromion is \ntype  2.  Advanced  degenerative  changes  are  seen  in  the  AC  joint. \nEdema is seen in the distal acromion. Fracture line is noted through \nthe  distal  acromion.  This  is  nondisplaced.  Humeral  head  is  high \nriding.  Full-thickness  tears  of  the  supraspinatus  and  infraspinatus \ntendons  are  noted.  Shoulder  effusion  is  present.  Subscapularis \ntendon  is  torn.  Abnormal  signal  is  noted  in  the  posterosuperior, \nposteroinferior,   and   anterior   inferior   labrum.   Small   marginal \nosteophyte  arises  from  the  humeral  head.  Fatty  atrophy  of  the \nsupraspinatus, infraspinatus, and subscapularis tendons is present. \n \nIMPRESSION: \n1. Full-thickness  tears  of  the  supraspinatus  tendon,  infraspinatus \ntendon, and subscapularis tendon. \n2. Nondisplaced acromion fracture. \n3. Degenerative changes of the AC joint. Joint effusion. \n4. Labral tears. \n \n On October 4, 2023, the claimant was seen at the Regional Medical Clinic at Greenville, \nAlabama, by Dr. Holland. Following is a portion of that medical record: \nHISTORY  OF  PRESENT  ILLNESS:  Dietrich  Scott  is  a  very \npleasant 62-year-old male who returns today for a follow up of left \nshoulder and left hip pain. He is here today to review MRI results. \n \nToday,  the  patient  reports  that  he  has  not  had  any  improvement \nwith his shoulder pain.  He fell out of an 18-wheeler in January of \n2023. He had had left hip x-rays done that need to be reviewed. \n \n*** \nASSESSMENT: \n S42.122A – DISP  FX  OF  ACROMIAL  PR  LEFT  SHLD \nINI FOR CLOS FX (PRIMARY) \n\nDiederich – H300528 \n \n-8- \n M75.102 – UNSP  ROTATR-CUFF  TEAR/RUPTR  OF  L \nSHLD NOT TRMA \n M25.552 – PAIN IN LEFT HIP \n Z68.35 – BODY MASS INDEX (BMI) 35.0-35.9, ADULT \n \nPLAN: \nMRI   REVIEWED   WITH   PATIENT   AND   PATIENT   WILL \nNEED  REVERSE  TOTAL  SHOULDER  SURGERY.  PATIENT \nWILL   CONTACT   US   WHEN   HE   IS   READY   TO   HAVE \nSURGERY. \n \nFOLLOW UP PRN. \n \n On  April  22,  2024,  the  claimant  underwent  surgical  intervention  for  his  alleged  left \nshoulder injury at the hands of Dr. Holland. Following is a portion of that surgical intervention: \nPREOPERATIVE  DIAGNOSIS:  LEFT  SHOULDER  ROTATOR \nCUFF ARTHROPATHY \n \nPOSTOPERATIVE DIAGNOSIS: LEFT SHOULDER \nROTATOR CUFF ARTHROPATHY \n \nPROCEDURE     PERFORMED:     LEFT     REVERSE     TOTAL \nSHOULDER ARTHROPLASTY \n \n It appears that the claimant’s surgery to his left shoulder provided improvement for his \nleft shoulder injury. The claimant began working on June 24, 2024, but still had some additional \nproblems. On direct examination the claimant described his difficulties as follows: \nQ Explain the trouble that you are having now. \n \nA Well,  I  am  still  having  problems  with  doing  the  landing \ngear.  And,  you  know,  any  of  the  physical  job,  even  opening  the \ntrailer  doors  and  that,  I  have  wrenched  my  shoulder  a  number  of \ntimes. \n \nQ Have you been released from the doctor’s care? \n \nA Not 100 percent, no. \n \nQ Why did you go back to work? Well, let’s just go back to \nthe  period  of  time  that  you  worked  back  in  2023.  Why  did  you \n\nDiederich – H300528 \n \n-9- \nwork for those eight weeks? \n \nA Well, I wanted to see if I could do the job. I wanted to see \nif my shoulder was well enough  to perform. \n \nQ Was this impacting your household finances? \n \nA Yes.  I  depleted – being  off  work  that  long  and  then \ndepleted our savings completely, so that is why I tried going back \nto work, also. \n \nQ Is that the case now that you are working since you started \nworking in June? \n \nA Yes, that is it exactly. I had to pay the bills. \n \nQ And do you want to see how this shoulder does? \n \nA Yes. \n \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. I find that the claimant is able to prove \nby a preponderance of the evidence that he sustained a compensable injury to his left shoulder on \nJanuary 8, 2023. \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n\nDiederich – H300528 \n \n-10- \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). The claimant’s medical \ntreatment  is  found  to  be  reasonable  and  necessary  treatment  for  his  compensable  left  shoulder \ninjury which includes his initial treatment and surgical intervention and aftercare period. \n The  claimant  has  also  asked  the  Commission  to  determine  his  entitlement  to  temporary \ntotal  disability  benefits  from  January  9,  2023,  to  June  24,  2024,  less  eight  weeks  when  the \nclaimant resumed work as a truck driver. \nIn order to be entitled to temporary total disability benefits, the claimant has the burden \nof proving by a preponderance of the evidence that he remains within his healing period and that \nhe suffers a total incapacity to earn wages as a result of his compensable injury. Arkansas State \nHighway & Transportation Department v. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981). \nAfter a review of the evidence in this matter and after giving the claimant’s working interruption \nconsideration, I find that the claimant is entitled to temporary total disability benefits from April \n22, 2024, until June 24, 2024. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nMay 20, 2024, and contained in a Pre-hearing Order filed May 21, 2024, are hereby accepted as \nfact. \n\nDiederich – H300528 \n \n-11- \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  sustained  a \ncompensable injury to his left shoulder on January 8, 2023, when he fell from the respondents’ \ntractor-trailer.  \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nmedical treatment including initial conservative medical measures and surgical intervention and \nits aftercare. \n 4.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \ntemporary total disability benefits from April 22, 2024, until June 24, 2024. \n5.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney fee in this matter. \n ORDER \nThe  respondents  shall  pay  claimant  temporary  total  disability  benefits  from  April  22, \n2024,  through  June  24,  2024.  The  respondents  shall  also  pay  for  medical  expenses  associated \nwith the claimant’s compensable left shoulder injury. Those expenses include initial conservative \ncare and surgical intervention and its aftercare. \n The respondent shall pay to the claimant’s attorney the maximum statutory attorney’s \nfee  on  the  benefits  awarded  herein,  with  one-half  of said  attorney’s  fee  to  be  paid  by  the \nrespondent in addition to such benefits and one-half of said attorney’s fee to be withheld by the \nrespondent from such benefits pursuant to Ark. Code Ann. § 11-9-715. \n All sums herein accrued are payable in a lump sum and without discount and shall earn \ninterest at the legal rate until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n\nDiederich – H300528 \n \n-12- \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":19894,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H300528 SCOTT DIEDERICH, Employee CLAIMANT TRANSCO LINES, INC., Employer RESPONDENT NATIONAL INTERSTATE INS. CO, Carrier RESPONDENT OPINION FILED NOVEMBER 5, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope County, Arkansas. ...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["shoulder","knee","hip","sprain","fracture","rotator cuff","back"],"fetchedAt":"2026-05-19T22:46:09.070Z"},{"id":"alj-H302588-2024-11-05","awccNumber":"H302588","decisionDate":"2024-11-05","decisionYear":2024,"opinionType":"alj","claimantName":"Mikael Green","employerName":"Nichols Loading, Inc","title":"GREEN VS. NICHOLS LOADING, INC. AWCC# H302588 November 05, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GREEN_MIKAEL_H302588_20241105.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GREEN_MIKAEL_H302588_20241105.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H302588 \n \nMIKAEL GREEN, Employee      CLAIMANT \n \nNICHOLS LOADING, INC., Employer     RESPONDENT \n \nMISSOURI EMPLOYERS MUTUAL INS., Carrier/TPA   RESPONDENT \n \n \n OPINION FILED NOVEMBER 5, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant represented by JACQUELINE MOCK, Attorney at Law, Fort Smith, Arkansas.  \n \nRespondent represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn May 25,  2023,  the  claimant’s  attorney, Mark  Peoples,  filed  an  AR-C  requesting \nvarious compensation benefits in which he alleged a left ring finger amputation on or about April \n11, 2023. The claim was accepted as compensable, and all related benefits were paid.  \nOn  August  29,  2023,  the  claimant  emailed  the  Commission  requesting  Mr.  Peoples  be \nremoved  as  his  attorney,  and  on  August  30,  2023,  that  request  was  granted.  The  claimant \nretained the services of Jacqueline Mock, and no further action was taken regarding this claim. \n On June 18, 2024, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed for lack of prosecution. A hearing was scheduled for October 10, 2024. Notice of that \nhearing was sent to the claimant by certified mail, return receipt requested on September 4, 2024. \nUnited States Postal Department records indicate that claimant received and signed for the notice \n\nGreen – H302588 \n \n-2- \non September 11, 2024. Due to a scheduling conflict the hearing was rescheduled to October 17, \n2024,  and  notice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt \nrequested on October 4, 2024. United States Postal Department records indicate that on October \n10,  2024,  delivery  was  attempted  but  no  authorized  recipient  was  available. Claimant  did  not \nappear at the scheduled hearing.  Claimant’s attorney did appear at the hearing and set forth that \nshe had no objection to the dismissal of the claimant’s claim as all appropriate benefits had been \npaid. \n After  my  review  of the respondents’  Motion  to  Dismiss,  the  claimant’s attorney’s \nagreement  to  the  dismissal,  and  all  other  matters  properly  before  the  Commission,  I  find  that \nrespondents’  Motion  to  Dismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to \nCommission Rule 099.13. This dismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":3149,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H302588 MIKAEL GREEN, Employee CLAIMANT NICHOLS LOADING, INC., Employer RESPONDENT MISSOURI EMPLOYERS MUTUAL INS., Carrier/TPA RESPONDENT OPINION FILED NOVEMBER 5, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian Count...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:46:11.127Z"},{"id":"alj-H401930-2024-11-01","awccNumber":"H401930","decisionDate":"2024-11-01","decisionYear":2024,"opinionType":"alj","claimantName":"Travis Jones","employerName":"Jones Dirt Works","title":"JONES VS. JONES DIRT WORKS AWCC# H401930 November 01, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Jones_Travis_H401930_20241101.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jones_Travis_H401930_20241101.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H401930 \n \n \nTRAVIS L. JONES, EMPLOYEE CLAIMANT \n \nJONES DIRT WORKS, \nEMPLOYER RESPONDENT \n \nAMTRUST INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED NOVEMBER 1, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on November 1, 2024, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. William  C.  Frye,  Attorney  at  Law, North Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on November 1, 2024, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was  Commission  Exhibit  1  (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich best ascertains the rights of the parties”), forms, pleadings, reports, and \ncorrespondence  related  to  this  claim,  consisting  of 13 pages;  and  Respondents’ \nExhibit  1,  a  one-page  felony  information  bearing  Claimant’s  name  and  address \n(offered and considered only to verify his address). \n\nJONES – H401930 \n \n2 \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  April  1,  2024,  Claimant \npurportedly suffered an injury to his knee at work on January 12, 2024, when he \nfell off a tractor.  According to the Forms AR-2 that were filed on April 1 and July \n16, 2024, respectively, Respondents accepted the claim as a medical-only one. \n On March 19, 2022, Claimant’s then-counsel Mark Alan Peoples made his \nentry of appearance and filed a Form AR-C on his client’s behalf, requesting the \nfull  range of  initial  benefits.  No request  for  a hearing  on the  claim accompanied \nthis filing.  Respondents’ counsel entered his appearance on April 3, 2024. \n Peoples  on  July  22,  2024,  moved  to  withdraw  from  his  representation  of \nClaimant.  In an Order entered on August 14, 2024, the Full Commission granted \nthe motion pursuant to AWCC Advisory 2003-2. \n Respondents filed the instant Motion to Dismiss under AWCC R. 099.13 on \nAugust  19,  2024.   Therein,  they  asserted  that  the  claim  should  be  dismissed \n“[b]ased on the fact that the Claimant has taken no action on this matter since the \nAR-C was filed . . . .”  The file was reassigned to me on that same date; and on \nAugust  20,  2024, my  office wrote  Claimant,  requesting  that  he  respond  to  the \nmotion within 20 days.  The correspondence was sent by certified and first-class \nmail  to  the  address  for  Claimant  listed  on  his  Form  AR-C.    The  United  States \nPostal  Service  (“USPS”)  returned  the  certified  letter  to  the  Commission  on \nSeptember 9, 2024, with the notation: \n\nJONES – H401930 \n \n3 \n \nRETURN TO SENDER \nNO SUCH STREET \nUNABLE TO FORWARD \n \nBut  the  first-class  mailing  was  not  returned.  Regardless,  no  response  by  him  to \nthe motion was forthcoming. \n On September   10,   2024,   a   hearing   on   the Motion to Dismiss was \nscheduled for November  1,  2024, at 10:30 a.m.  at  the  Craighead  County \nCourthouse in Jonesboro.   The  notice  was  sent  to  Claimant  via  first-class  and \ncertified mail to  the  same address as  before.   In  this  instance, the certified  letter \nwas returned to the Commission by USPS with the notation: \nRETURN TO SENDER \nNOT DELIVERABLE AS ADDRESSED \nUNABLE TO FORWARD \n \nBut once again, the first-class mailing was not returned. \n The   hearing   on   the Motion   to Dismiss   proceeded   as   scheduled   on \nNovember  1,  2024.    Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents appeared  through  counsel  and  argued  for  dismissal  under AWCC \nR. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n\nJONES – H401930 \n \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim is hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nJONES – H401930 \n \n5 \n \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it (including  appearing  at  the November  1,  2024, hearing  to  argue \nagainst its dismissal) since the filing of his Form AR-C on March 19, 2024.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nJONES – H401930 \n \n6 \n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7297,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H401930 TRAVIS L. JONES, EMPLOYEE CLAIMANT JONES DIRT WORKS, EMPLOYER RESPONDENT AMTRUST INS. CO., CARRIER RESPONDENT OPINION FILED NOVEMBER 1, 2024 Hearing before Administrative Law Judge O. Milton Fine II on November 1, 2024, in Jonesboro, Craighead County,...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:46:00.593Z"},{"id":"alj-H402792-2024-11-01","awccNumber":"H402792","decisionDate":"2024-11-01","decisionYear":2024,"opinionType":"alj","claimantName":"Jessica Mccullough","employerName":"Little Ceasars Pizza","title":"MCCULLOUGH VS. LITTLE CEASARS PIZZA AWCC# H402792 November 01, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/McCullough_Jessica_H402792_20241101.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"McCullough_Jessica_H402792_20241101.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H402792 \n \nJESSICA MCCULLOUGH, \nEMPLOYEE                                                                                                              CLAIMANT \n \nLITTLE CEASARS PIZZA, \nEMPLOYER                                                                                                         RESPONDENT  \n \nBRIDGEFIELD CASUALTY INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nSUMMIT CONSULTING, LLC, \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED NOVEMBER 1, 2024 \n \nHearing  conducted  on Friday, October 11,  2024,  before  the  Arkansas  Workers’  Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Ms. Jessica McCullough, Pro Se, of Blytheville, Arkansas. \n \nThe Respondents were represented by the Honorable Jason M. Ryburn, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This matter comes before the Commission on a Motion to Dismiss by Respondents. A hearing \nwas  conducted  on October  11,  2024,  in Jonesboro,  Arkansas.  No  testimony  was  taken  in  the  case. \nClaimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe  Claimant  worked  for  the  Respondent/Employer  as  an  assistant  manager. The date  for \nClaimant’s alleged injury was on November 1, 2022. She reported her injury to Respondent/Employer \non April  30,  2024. Admitted  into  evidence  was Respondents Exhibit  1, Form  AR-C,  Motion  to \nWithdraw, and Order, consisting of four pages. I have also blue-backed Form AR-1, a certified returned \nreceipt dated August 9, 2024 and certified returned receipt dated September 5, 2024, as discussed infra. \nThe record reflects on April 26, 2024, a Form AR-C was filed with the Commission through \nClaimant’s then-attorney, Mark Peoples, purporting alleged injuries to her hand, wrist, arm, and elbow. \n\nMCCULLOUGH, AWCC No. H402792 \n \n2 \n \nOn May 2, 2024, a Form  AR-1 was filed in this case, reflecting that Claimant purportedly reported \nthese injuries to Respondent/Employer on April 30, 2024. Respondents on May 2, 2024, filed a Form \nAR-2, challenging the compensability of Claimant’s alleged injuries. In short, this report alleges that \nClaimant’s injury doesn’t meet the statutory definition of accident. Attorney Jason Ryburn entered his \nappearance on behalf of the Respondents on May 3, 2024. Attorney Peoples filed a Motion to Withdraw \nas Counsel on July 1, 2024, that was granted on July 24, 2024. \nThe Respondents next filed  a Motion  to Dismiss on July 29,  2024, requesting  this  claim  be \ndismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. Mail, notice of \nthe Motion  to Dismiss  from my  office on August 5,  2024, to her last  known  address.  The certified \nnotice was claimed by Claimant on August 9, 2024. Claimant did not respond to the notice in writing \nas  required. Thus,  in  accordance  with  applicable  Arkansas  law,  the Claimant  was  mailed  due  and \nproper legal notice of Respondents’ Motion to Dismiss hearing date at her current address of record \nvia the United States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and \nregular First-Class Mail, on September 3, 2024. The certified hearing notice was claimed by Claimant \non September 5, 2024. The hearing took place on October 11, 2024. As mentioned before, the Claimant \ndid not show up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore, after a thorough consideration of the facts, issues, the applicable law, and the evidentiary \nrecord, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant and  Respondents  both  had reasonable  notice of  the October  11,  2024, \nhearing. \n \n3. Respondents  have  proven  by  the  preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n\nMCCULLOUGH, AWCC No. H402792 \n \n3 \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, with \nproper notice, on the Respondents’ Motion to Dismiss. The certified hearing notice was claimed by \nClaimant on September 5, 2024. Respondent’s counsel was present and argued the motion. Thus, I find \nby the preponderance of the evidence that reasonable notice was given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an action \npending before it due to a want of prosecution. The Claimant filed her Form AR-C on April 26, 2024. \nSince then, Claimant has not made a demand for a hearing or has taken any other action in furtherance \nof this claim. In this regard, the Claimant has failed to do the bare minimum in prosecuting her claim. \nTherefore, I do find by the preponderance of the evidence that Claimant has failed to prosecute her \nclaim. Thus, Respondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based on the Findings of Fact and Conclusions of Law set forth above, Respondents’ Motion \nto Dismiss is hereby granted without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":5868,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H402792 JESSICA MCCULLOUGH, EMPLOYEE CLAIMANT LITTLE CEASARS PIZZA, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INS. CO., CARRIER RESPONDENT SUMMIT CONSULTING, LLC, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED NOVEMBER 1, 2024 Hearing conducted on Friday, ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T22:46:02.748Z"},{"id":"alj-H303124-2024-11-01","awccNumber":"H303124","decisionDate":"2024-11-01","decisionYear":2024,"opinionType":"alj","claimantName":"David Otwell","employerName":"Jerry Lynn Roberson","title":"OTWELL VS. JERRY LYNN ROBERSON AWCC# H303124 November 01, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/OTWELL_DAVID_H303124_20241101.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OTWELL_DAVID_H303124_20241101.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303124 \n \nDAVID OTWELL, EMPLOYEE      CLAIMANT \n \nJERRY LYNN ROBERSON      RESPONDENT  \n \nEMPLOYERS REFERRED INSURANCE CO.,    RESPONDENT  \nCARRIER/TPA \n \nOPINION FILED NOVEMBER 1, 2024 \nHearing before  Administrative  Law  Judge,  James  D.  Kennedy, on  the 18\nTH\n day  of \nSeptember 2024, in Mountain Home, Arkansas. \nClaimant is represented by Rick Spencer, Attorney at Law, Mountain Home, Arkansas. \nRespondents are represented  by James  A.  Arnold,  Attorney  at  Law, Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 18\nth\n day of September 2024, in Mountain Home, \nArkansas, to  determine  the issue of the  existence  of  an  employee/employer  carrier \nrelation and if the relationship existed,  the compensability  for injuries to the claimant’s \nback,  both  hands  and  wrists,  along  with reasonable  and  necessary  medical  care.  The \nissues of TTD, an impairment rating, and attorney fees were reserved. A copy of the Pre-\nhearing Order dated June  4,  2024, as  well  as  the response  to  the  Prehearing \nQuestionnaire by both the Claimant and the Respondent were made part of the record \nwithout objection. \n From  a  review  of  the  record  as  a  whole, to include  medical  reports  and  other \nmatters properly before the Commission and having had an opportunity to observe the \n\nDavid Otwell – H303124 \ntestimony and demeanor of the witnesses, the following findings of fact and conclusions \nof law are made in accordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That the claimant has failed to satisfy the required burden of proof to show that \nan employer/employee carrier relationship existed on June 25, 2025, the date \nof the injury.  \n3. That all other issues are moot. \n4. If not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The claimant, David Lawrence, was the initial witness to testify. He worked almost \n30  years  in  construction  as  a  journeyman  and testified  that  he was  working  for  Jerry \nRoberson, the respondent, on June 25, 2022, on a house the claimant stated he had been \ntold was going to be used as rental property. This was the property where he was working \nwhen the  injury  occurred. This  property  was  going  to be the respondent’s first  rental \nproperty per the testimony of the claimant. The respondent also had a cell phone repair \nfacility. The  claimant also worked for CNS Contracting, Monday  through  Thursday. On \nFridays,  Saturdays,  and  some  Sundays,  he  worked  on  the  house owned  by  the \nrespondent.  (Tr.  8,  9) The  claimant  stated that  he  had  previously  worked  on  a  house \nowned by the respondent which he resided back in 2021 and 2022, while working for M \n\nDavid Otwell – H303124 \n& A Jones/CNS Contracting, and that they did some odds and ends on the house and \nredid a bathroom.  “After he saw what me and Tom could do, he approached us both and \nasked us if we could build a house for him was - - or build a rental property for him.” He \nhad the property and plans picked out. The respondent bought all of the materials, unless \nthere was something that we might have forgotten, and he then reimbursed us for it. In \nregard to the tools, the respondent furnished generators, air compressors, miscellaneous \nhand and power tools, and some scaffolding with the scaffold boards. (Tr. 10, 11) The \nrespondent had the right to hire and fire, and he paid us in cash, paying around $30.00 \nan hour and we only worked on the rental property. “If there was something that we \nneeded, he would get it for us.” He went on to state that he had worked on the rental \nproperty from roughly January through his fall which occurred in June. (Tr. 12, 13) \n In regard to the fall, he testified that he was painting the two-story house down by \nthe river. While on a ladder painting the second story, the ladder somehow slipped and \nthe claimant fell 25 feet, landing on his chest. He knew something was really - wrong and \nstated  he  had  broken his  L1  and  shattered  his  L2.  They eventually  loaded  him in an \nambulance and took him to a med flight. In regard to workers’ compensation insurance, \nthe claimant stated that the second week out there, the respondent told him and the other \nworkers that he had coverage. (Tr. 14, 15) \n The claimant was then questioned about a series of text messages between the \nclaimant and the respondent. The claimant went on to state that he could no longer work \nlike he was doing and at the time of the hearing he pointed out he was in a wheelchair \nand that he had been in it since his fall. He admitted that he could walk some with crutches \nand that he could move both legs, but he had control of one leg more than the other.  He \n\nDavid Otwell – H303124 \nwent on to state that he really did not have any real control of one leg. He also testified \nthat he had no bladder sensation, so he was required to cath and had issues with bowel \nmovements. He also stated he had worked for M & A Jones for over 20 years. (Tr. 16 – \n18) He didn’t know if the respondent ever used the term employee with him, but he was \nsure that he had asked him to quit M & A Jones to take on a full-time responsibility for the \nconstruction he wanted.   \n Under cross examination, the following questioning then occurred: \nQ: Okay. And on page 45 of the deposition, we talked about the insurance and your \n - - it says my question. “Did Jerry have a conversation with all three of you about \n getting insurance?”  And you said, “The first week we were out there, there was \n no  talk.  The  second  week we were there, Jerry came back and said I’ve got \n Insurance on you guys, but did not specify the kind of insurance.” You just said \n that  he  told  you  that  he  had  workers’  comp.  He  didn’t  tell  you  that  he  had \n workers’ comp, did he? \nA: I didn’t say that. I didn’t say it was workers’ comp. I said he had insurance on us. \nQ:   Do you know what builder’s risk is? \nA:   Kind of. Sort of. \nQ:   Okay.  Do you know that Tom Moore asked him to get builder’s risk so you could \n lock the M & A tools up inside the cabin? \nA:   We didn’t leave M & A tools on the job site. \nQ:   Because you never got the locks installed, correct? \nA:   No, we had locks on the doors. \nQ:   Okay.  You’ve been in construction all your life? \nA:   Yes, sir. \nQ:   You have a full-time 40-hour week job with M & A construction, now CNS, but the \n same bunch, they just changed on them. \nA:   Yes. \nQ:   And you have been doing that for 22 or 24 years? \nA:   Yes, sir. \nQ:   Your entire life has been in the construction carpentry business, correct? \n\nDavid Otwell – H303124 \nA:   Yes, sir. \nQ.   Okay. And that’s what you were doing on this property that Jerry Roberson had? \nA:   Yes, sir. \nQ:   The same thing you’ve done all your life? \nA:   Yes, sir. \nQ:   Okay. Now, the first time you ever worked for Jerry was on the house that he and \n Sandy were living in, correct? \nA:  Correct. \nQ:  And your testimony here today and in your deposition was that Jerry asked Tom \n to come do some work on his house and Tom asked Jerry, I need some help. I \n know a guy at work. Is it okay if we bring him? Is that how that happened, right? \nA:  That’s how that happened on his house, yes.  \n(Tr. 22, 23) \nThe claimant went on to state he had worked probably eight or ten days maybe, \non Jerry and Sandy’s home. He also stated that he was aware that the respondent had a \ncell phone business, knew he did not have a construction company, and knew he didn’t \nhold himself out as a construction company. He also agreed he was never paid a dime \nby  the  cell  phone  company.  (Tr.  24,  25) After  the  eight  or  ten  days where he  helped \nremodel Jerry and Sandy’s house, he didn’t do anything for the respondent for four \nmonths or  so and during  that period of  time,  he continued working  for  M  &  A. He  also \nthought he had other side jobs during that period of time, where he would be paid cash \njust  like the  respondent did, and he was not aware of any of them having workers’ \ncompensation that covered him. Tom and he continued to be crew leaders with M & A \nduring  that time-period while  performing  the side  job for  the  respondent on  Friday  and \nSaturdays. He also admitted to having one other side job during that time period where \nhe  worked for  someone else  doing  carpentry. He admitted he didn’t write any of the \ninvoices, but that Tom Moore was the one who filled them out. (Tr. 27 – 29) The claimant \n\nDavid Otwell – H303124 \nalso admitted that the invoices that Tom filled out and gave to the respondent and which \nare before the Commission, had labor for three men, for two days, and that was how the \nrespondent paid him. (Tr. 31) The claimant also agreed that they supplied some of the \nladders and the respondent supplied some of them and they also used a ladder off the M \n&  A  truck. Some  of  the  tools  came off  the M  &  A  truck,  including  a  laser.  (Tr.  32)  The \nrespondent was  paying  for  two  M  &  A  Jones  trucks  to  be  on  site,  in  case  somebody \nneeded to go into town to get something. The claimant admitted that on occasion, they \nwould use some of the M & A Construction tools, but stated they tended to use their own \npersonal tools stored in the trucks. (Tr. 33) \nIn regard to the directions given by the respondent, the claimant admitted that the \nrespondent ran a full-time cell company in Batesville, and he was not on site ten hours a \nday like they were. He also admitted that in regard to the texts, some consisted of asking \nif the claimant or his partner needed the respondent to pick up something in town. The \nitems that the respondent picked up were to assist the claimant and his partners and keep \nthem on the job site. The respondent would sometimes ask if they could do this or that \nand sometimes, they would do it and sometimes they would tell him that it did not make \nany  sense.  The  claimant admitted  that the  respondent  did  not  instruct  them on how  to \npaint, how to hang trusses, or how to roof, due to the fact they were in the construction \nbusiness. The claimant also admitted that Tom, Jim, and he were all hired because they \nwere carpenters and the respondent wasn’t. (Tr. 34 – 37) The claimant was allowed to go \nwork for someone else if he was not working for the claimant on those days. (Tr. 38) He \nalso  admitted  that  he  was  able  to  walk  about  200  feet  with  forearm  crutches  and  was \nworking as a superintendent for M & A Construction. \n\nDavid Otwell – H303124 \nOn redirect, the claimant stated that the respondent told them where to work and \npaid them. (Tr. 39) \nAt this point, the claimant rested, and the respondents called the respondent, Jerry \nRoberson, who stated that he used to own Cell Phone Central back in 2021 and 2022, \nand that he had owned the business since 2010, before he sold it. The business fixed \n“cell  phones,  I-Pads,  computers,  anything  electronic.”  He  sold  the  business  to  his \nmanager sometime around January of 2023. The business did not do anything that wasn’t \nrelated to technological devices. The business did not own any real estate, nor did it have \nanything to do with construction. Prior to the cell phone business, the respondent stated \nthat he was a landscaper. He was at one time an electrician’s helper and worked as an \nequipment  operator  in  the  past.  He  had  no  carpentry  skills  or  skills  of  any  kind  that \ntranslated into the construction of a home or residence. He owned no rental property in \n2022.  \nThe respondent admitted meeting Thomas Moore when he was getting his hair cut \nby Thomas Moore’s wife and he mentioned a project where they were attempting to fix a \nfloor in the home he lived in with his wife. Thomas Moore’s wife pointed to a picture of her \nhusband  and  stated  that  he  did  work  like  that. (Tr.  42 - 44) Thomas  Moore  ultimately \nperformed the work on the house where they were living, which they sold at the end of \n2022. The respondent went on to state that Tom and the claimant performed renovations \nto the house which included filling gaps in the sheet rock, working in the bathroom, and \njust general stuff around the house so they could sell it. The respondent stated that he \nassumed Tom brought the claimant along to have extra help. (Tr. 45, 46) \n\nDavid Otwell – H303124 \nIn regard to the property by the river where the accident occurred, the respondent \nstated he had owned the property since 2009, and after they sold their other remaining \nproperty, the only property left was the river property where the accident occurred and \nwhich they were going to live in. The respondent testified that he had contacted Thomas \nabout building on the property and was told to bring the plans over, which he did. (Tr. 47, \n48) The respondent was questioned about the invoices in regard to the project and stated \nthat Thomas would provide the invoices on Saturday, and he would then pay them. He \nwould give Tom the money and he had no idea how much the others were paid or how \nmuch he kept for himself. He went on to state that the M & A Construction trucks were \nbrought out every Friday and Saturday and they were full of tools. He also stated he had \nno  workers’ compensation  insurance  but  admitted  that  there  was  in  fact  a  discussion \nabout  insurance.  He  was  looking  into  purchasing  builders’ risk  for  the  property.  The \nrespondent  admitted  to  supplying  the  air  compressor  and  the  generator  which  were \nalready  on  site  and  hooked  up  to  his  camper.  He  went  on  to  explain  that  solar  panels \nwould not power a coffee pot. He also admitted to providing a baker’s scaffolding that he \nhad bought at a yard sale, but that they never used it. (Tr. 49 - 52) In regard to supplies, \nthe respondent stated that Tom would call or text, and the supplies would be dropped off, \nand he “would go into town six days a week to check on the phone store so I had a jeep \nand trailer and so a lot of times I would be called or texted and told to pick up supplies.”  \nHe went on to state that a lot of the texts were in regard to picking up supplies. He was \nrelying on Thomas and his crew to build a serviceable building but admitted to picking out \npaint  colors  and  tile  and  things  of  that  nature.  The  respondent  denied  that  Tom,  the \nclaimant, or  Jim  Halstead, had  anything  to  do  with  the  cell  phone  business.  The \n\nDavid Otwell – H303124 \nrespondent denied supervising the claimant’s work on the day of the accident or any other \nday. (Tr. 53, 54) \nUnder cross examination, the respondent denied ever filing a 1099 with the IRS. \n(Tr. 55) He did admit that when he resided at 90 Moore Avenue, he did say that he might \nbuild a house on it to rent but “I never said for sure that we were going to build anything \nuntil the other two houses sold.”  He denied there being a possibility of rentals for income \npurposes at that point. (Tr. 56) The respondent also denied making house calls in the cell \nphone business and further stated that his employees never went to homes or businesses \nto assist in installation and getting things to work right. “They come to us.  No, we are not \na “go to you” business.”” (Tr. 58) The respondent was also asked “And did you not direct \nsometimes to them to do something other than what they wanted to do?”  He responded \n“No.  They didn’t listen to a word I said.” (Tr. 59) \nOn redirect, the respondent confirmed he was not on the building site when the \naccident happened but was down on the river a couple of hundred yards away.  (Tr. 60)   \n   The claimant was then recalled, and he stated he had been told multiple times that \nthe property was a rental house, and that he had even been told that a purchased vehicle \ncharger would allow an extra $20.00 rent charge. In regard to the skills of the respondent, \nthe claimant replied, “He said he wasn’t an expert and that’s why he hired us.” (Tr. 63) \nThe claimant also testified that he was sure the respondent sometimes got things for the \nproject although he couldn’t recall 100% but that “He was in charge.”  The claimant was \nalso asked about workers’ compensation insurance and was he ever told that it was in \nplace, and he responded “No, sir. He did not.” (Tr. 64) \n\nDavid Otwell – H303124 \n Claimant  submitted Medical  Exhibit One  which  was  admitted  without  objection. \nThe exhibit provided that the claimant was presented to UAMS by med flight on June 25, \n2022, with a closed unstable burst fracture of the second lumbar vertebra, with multiple \nfractures  of  ribs,  bilaterally  which  were confirmed  by  the  MRI and which  also  showed \ncompression fractures of the L1 and L4 vertebral bodies and severe canal compression \nwith  increased  T2  hypersensitivity.  There  was  no  evidence  of  traumatic  injury  to  the \nthoracic  spine.      Surgery  was  performed  on  June  26,  2022, and  the  postoperative \ndiagnoses provided for vertebral fractures of the L1, 2, 3 and 4 with a T12 spinous and \nlaminar fracture.  A burst fracture and a three-column injury at L2 resulted in a neurologic \ndeficit.  Additionally, two large traumatic dural tears with exposed nerve roots required a \nneural patch.  Left ankle imaging provided for no fracture or dislocation.  Imaging of the \nright  wrist  provided  for  a  well  corticated  bone  fragment  along  the  dorsum  of  the  wrist, \nwhich could have been secondary to a triquetral fracture. (Cl. Ex. 1, P. 1 – 9) \n The  claimant  also  submitted  25  pages  of  text  messages  without  objection. The \ntexts consisted of the respondent requesting guidance on items to pick up, such as how \nlong “a piece of rigid” should he get or asking where an item was going to be obtained, \nalong with questions about doors and windows with the respondent requesting a picture \nand responding upon receipt of a photo, that it “looks good.” One text asked the claimant \nwhether he would suggest an indoor or outdoor tankless water heater and he responded \nthat an outdoor model would save on venting. Another text was sent in regard to breakers \nand who should purchase them. Another text requested the respondent stop and obtain \nnails and the respondent requested a picture so he would know which ones to pick up.  \nAt one point, the respondent discovered a DeWalt nail gun and asked the claimant if he \n\nDavid Otwell – H303124 \nneeded it. The respondent was asked if he had contacted Batesville Glass at one point \nand he responded  that  they  would  be  out  to  the  project  on  Friday  or  Saturday.  The \nrespondent was also asked about picking out can-lights and providing a layout for them, \nalong with the speakers and ceiling fan. The respondent was also asked about a light or \nvanity light above a sink and also about caulking the siding. There were also texts about \npaying for items and a picture of a cotton mouth or a copper head snake in a hole. (CL. \nEx. 2, P. 1 – 25) \n The  respondents  also  submitted  21  pages  of  non-medical  exhibits  without \nobjection. The items consisted of the Contracting license for Thomas Moore.  (Resp. Ex. \n1, P. 1) In addition, invoices directed to the respondent Jerry Roberson for the labor of \nthree men,  the  cost  of  two  trucks,  and  a  variety  of  materials  and  other  items  were \nintroduced. (Resp. Ex. 1, P. 2 -17) A photo of the M & A Jones truck was also introduced \nas well as a photo of the house under construction. (Resp. Ex. 1, P. 18, 19) A list of the \nCell Phone Central Employees was also introduced, which did not include the name of \nthe claimant. (Resp. Ex. 1, P. 20, 21) \n The  respondents  also  summitted  the  deposition  of  the  claimant  dated  July  12, \n2023, which was  admitted  without  objection.  The  claimant  testified  under  direct in  the \ndeposition that he had learned in his apprentice program back in the 90’s how to basically \ndo  anything  as  far  as  construction  for  a  commercial  job.  He  stated  that  as  a  general \ncontractor, “we could take it from the ground up” and that he had been in the construction \nfield ever since, after starting in 1994. He also stated that he had never been a general \ncontractor.  (Resp.  Ex.  3,  P.  6)  He  admitted  that  he  was  working  for  M  &  A  Jones \nConstruction, where he is still employed and that he had been with them for 22 years. \n\nDavid Otwell – H303124 \n(Resp. Ex. 3, P. 9) While working for M & A Jones, the claimant stated he answered to \nKyle Johnson, the senior project manager, and to Arch Jones, the owner of the company \nuntil  the  end  of  2021. At  that  time,  C  &  S  Contracting  took  over  the  ownership.  This \ncompany only performed commercial work. (Resp. Ex. 3, P. 12 -13) \n The  claimant  stated  the  first  house  that he  worked on  for  the  respondent  was a \nhome where he was living, and that Tom Moore was working on the house and needed \nhelp and asked the claimant to assist him. He went on to explain that the house where \nthe injury occurred was a rental house. They started building that house with the help of \nJim  Halstead,  who  was  also  an  employee  of  M  &  A  Jones.  All  three  of  them  were \nemployed  by M  &  A  Jones. He affirmed that he never worked for the respondent’s \nbusiness in Batesville and the project where he fell was a residence and not a commercial \nbuilding and that M & A was not doing this job. (Resp. Ex. 3, P. 15 – 20) \n The claimant went on to state that he worked four tens for M & A Construction and \nthen would work Friday and Saturday on the residence. They had agreed to a rate to be \npaid by  the  respondent,  and  were  paid  in  cash,  and he  and  Tom were  paid  the  same, \n$30.00 an hour. He thought Jim was also paid the same. He did not see the respondent \npay any of the tradesmen, but he was aware that the respondent did hire someone to put \non the roof and finish the sheetrock. (Resp. Ex. 3, P. 21, 22) No one from the respondent’s \ncompanies came around and gave instructions, only the respondent. He would come and \ntell us what he wanted. He did not tell us how to apply the paint or the Sheetrock or how \nto put up the trusses. The claimant admitted that he was not told when to start and end \nwork but did state that the respondent wanted the house built as fast as possible. The \nrespondent also  supplied  the  materials  and  air  compressors,  table  saws,  generators, \n\nDavid Otwell – H303124 \nscaffolds, and scaffold boards. (Resp. Ex. 3, P. 23, 24) The claimant also thought that \nthey might have used some tools owned by M & A Jones. “For the most part, we used \nour personal tools or his tools.”  “Well, a carpenter always uses his personal tools.” (Resp. \nEx. 3, P. 25) \n In regard to payment, Tom would prepare one invoice and give it the respondent.  \nThe claimant could not remember if he was ever paid separately by the respondent, but \ndid remember that the respondent would give them money to pay Jim. (Resp. Ex 3, P. \n28) The claimant stated that it was his understanding, that the house where the accident \noccurred was going to be used for something like an Airbnb or a Vrbo rental. He further \nstated that the respondent never indicated that he was going to use it. However, it was \nhis understanding that he was building it for himself. (Resp. Ex. 3, P. 42, 43) \n Under  examination  by  the  claimant’s  attorney,  the  claimant  stated  that the \nrespondent approached both of them at the same time to go to work and build the house.  \nThe  claimant  also  stated  he  was  part  of  the  process  preparing  the  invoices,  although \nThomas always gave the invoice to the respondent. The claimant also testified that they \nwould be told by the respondent when he wanted something finished by a certain time. \n(Resp. Ex. 3, P. 44 – 46)  \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn determining whether the claimant has sustained his required burden of proof, \nthe  Commission  shall  weigh  the  evidence  impartially,  without  giving  the  benefit  of  the \ndoubt to either party.  Ark. Code Ann 11-9-704.  Wade v. Mr. Cavanaugh’s, 298 Ark. 364, \n768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence on \n\nDavid Otwell – H303124 \nall issues before it into findings of fact. Weldon v. Pierce Brothers Construction Co., 54 \nArk. App. 344, 925 S.W.2d 179 (1996). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe  Arkansas  Workers’  Compensation  Act  and  must  sustain  that  burden  by  a \npreponderance of the evidence. Dalton v. Allen Engineering Co., 66 Ark. App. 201, 635 \nS.W. 2d 823 (1982).  Preponderance of the evidence means the evidence having greater \nweight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark App. 263, \n101 S.W.3d 252 (2003).  Questions concerning the credibility of witnesses and the weight \nto  be given  to  their  testimony  are  within  the  exclusive  province  of  the  Commission.  \nPowers v. City of Fayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007).  Where there \nare contradictions in the evidence, it is within the Commissions’ province to reconcile \nconflicting evidence and to determine the true facts.  Cedar Chem. Co. v. Knight, 99 Ark. \nApp.  162,  258  S.W.3d  394  (2007).   However,  the  Commission  may  not  arbitrarily \ndisregard the testimony of any witness.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. \n230, 184 S.W.3d 31 (2004).  \n   In the present matter, all parties agreed that the claimant suffered serious injuries \nwhen he fell from a ladder where he was painting on the second floor of a construction \nproject where the property was owned by the respondent. The primary question before \nthe Commission is to determine if an employee/employer carrier relationship existed at \nthe  time  of  the  injury.  The testimony  provided  that  the claimant  had  worked  in  the \nconstruction  carpentry  business  his  entire  life  and  had  worked  for  M  &  A  Construction \n(also called CNS Contracting due to a change in ownership) for over 20 years. He would \nwork for four ten-hour days, Monday through Thursday for M & A Construction, and then \n\nDavid Otwell – H303124 \nwas allowed to find side jobs to work on during his own time. He was allowed to use the \nconstruction trucks of M & A Construction along with the tools on the truck, plus additional \ntools  of  the  company  such  as  a  laser on the side  jobs. The  claimant  testified  that “a \ncarpenter  always  uses  his personal  tools” but that  he also  used  a  generator, an  air \ncompressor and  a  table  saw that  were  stored  on  the  site  of  the  construction on  the \nproperty that were owned by the respondent.    \nThe claimant became acquainted with the respondent on a previous job repairing \na home which the respondent lived in with his wife, and at the time of the accident he was \nworking with two other M & A employees on a house which they were constructing on the \nriver for the respondent. The claimant testified he understood that the property was going \nto be rental property, but the respondent testified that since he had sold all of his other \nproperty, he intended for the construction to become his residence. \nThe claimant testified there had been some discussion with all the parties involved \nthat  the  respondent  was  going  to  obtain  insurance  but  admitted  that  workers’ \ncompensation insurance was not specifically mentioned. The claimant also testified that \nhe  had  worked  on  other  side  projects  where  there  was  no  workers’  compensation \ninsurance covering them. The respondent testified he had mentioned insurance and that \nhe had looked into builder’s risk insurance. \nIn regard to the actual project, the invoices were always submitted and prepared \nby Thomas Moore, one of the claimant’s co-workers on the project, and they provided for \nthe number of men working (usually two or three), two trucks, and any materials which \nthey  purchased. The  claimant  testified  he  assisted in  preparing  the  invoices  and  he \nthought that the third worker, Jim, was paid the same as Tom and he were. The invoices \n\nDavid Otwell – H303124 \nwere always paid in cash by the respondent on a Saturday. The respondent paid for most \nof the supplies. \nIn regard to supervision on the project, a number of text messages were entered \ninto the record,  and the majority of them involved the respondent picking up additional \nsupplies  in  town at  the  instruction  of  the  claimant  and  his  co-workers.  The  respondent \nadmitted that he was in town every day due to his computer business, that he had a Jeep \nand trailer, and he would attempt to pick up items for the construction, in an attempt to \nkeep  the  claimant  and  his  partners  on  the  job  site.  A  few  of  the  text  messages asked \nabout how an item would appear such as windows. One text discussed the discovery of \nsnakes in a hole near the construction. The claimant stated in his deposition in regard to \nthe skills of the respondent that “He wasn’t an expert and that’s why he hired us.” The \nclaimant also admitted that the respondent never instructed them on how to paint, how to \nhang trusses, or how to roof, due to the fact they were in the construction business. The \nrespondent admitted to picking out paint colors and tile and things of that nature. \nIn regard to the respondents’ business, Cell Phone Central, the claimant admitted \nhe was never paid by the company and the evidence provided he was not listed as an \nemployee. The company owned no property and made no house calls. The respondent \ntestified his customers for the cell phone business came to the business and that it was \nnot a “go to your business.” The business, which was sold in January of 2023, repaired \ncell phones, I-Pads, computers and everything electronic. The business owned no real \nestate nor had anything to do with construction. \nThe following are factors that are to be weighed in drawing the line between an \nindependent  contractor  and  an  employee: (1)  the  extent  of  control,  which  by  the \n\nDavid Otwell – H303124 \nagreement, the master may exercise over the details of the work; (2) whether or not the \none employed is engaged in a distinct occupation or business; and (3) whether or not the \nwork is a part of the regular business of the employer.  An independent contractor is one \nwho contracts to do a job according to his own method without being subject to the control \nof the other party, except as to the result of the work.  The right to control is the principal \nfactor in determining whether one is an employer or an independent contractor.  The right \nto control and not the actual control determines the relationship.  See ConAgra Foods, \nInc. v. Draper, 372 Ark. 361, 276 S.W. 3d 244 (2008) In workers’ compensation law, an \nindependent  contractor  is  one  who  contracts  to  do  a  job  according  to  his  or  her  own \nmethod and without being subject to the control of the other party, except as to the result \nof  the  work. There  is  no  fixed  method  by  which  to  determine  whether  a  person  is  an \nemployee or an independent contractor.  However, some factors guide the court’s inquiry.  \nThey are as follows: (a) the extent of control which, by the agreement, the master may \nexercise over the details of the work, (b) whether or not the one employed is engaged in \na distinct occupation or business. (c) the kind of occupation, with reference to whether, in \nthe locality, the work is usually done under the direction of the employer or by a specialist \nwithout  supervision,  (d)  the  skill  required  in  the  particular  occupation,  (e)  whether  the \nemployer or the workman the supplies the instrumentalities, tools, and the place of work \nfor the person doing the work, (f) the length of time for which the person is employed, (g) \nthe method of payment, whether by the time or by the job, (h) whether the work is part of \nthe regular business of the employer, (i) whether the parties believe they are creating the \nrelation of master and servant; and (j) whether the principle is in the same business as \n\nDavid Otwell – H303124 \nthe alleged independent contractor.  See Davis v. Ed Hickman, P.A., 220 Ark. App. 188, \n598 S.W. 3d. 70, 2020)   \nHere  it  is  clear  that  the  respondent’s  business,  electronic  repairs,  had  no \nconnection to the construction business and that construction was clearly not part of the \nregular  business  of  the  respondent, and clearly  a  distinct  occupation  with  a totally \nseparate skill set. The claimant admitted in his deposition that they were hired due to the \nfact “He wasn’t an expert and that’s why he hired us” in a reference to the respondent.  \nThe  text  messages  showed  that  the  respondent  primarily  was  contacted  to  pick  up \nsupplies  in  town,  and  that  he  often  had  to  ask  questions  in  regard  to  what  to pick  up.  \nFurther, although some of the respondent’s tools were used, the claimant also admitted \nusing  some  of  the  construction  company’s tools were  also used and  stated  that  as  a \ncarpenter, they primarily used their own tools.  \nBased  upon  the  above  evidence  and  the  applicable  law,  and  after  weighing  the \nevidence  impartially,  without  giving  the  benefit  of  the  doubt  to  either  party,  there  is  no \nalternative but to find that the claimant has failed to satisfy the required burden of proof \nto  prove  by  a  preponderance  of  the  evidence  that an  employee/employer  carrier \nrelationship existed at the time of the claimant’s accident. Consequently, all other issues \nare moot. If not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \nIT IS SO ORDERED. \n     \n      ___________________________ \n      JAMES D. KENNEDY  \n      Administrative Law Judge","textLength":34172,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303124 DAVID OTWELL, EMPLOYEE CLAIMANT JERRY LYNN ROBERSON RESPONDENT EMPLOYERS REFERRED INSURANCE CO., RESPONDENT CARRIER/TPA OPINION FILED NOVEMBER 1, 2024 Hearing before Administrative Law Judge, James D. Kennedy, on the 18 TH day of September 2024, in ...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","fracture","lumbar","thoracic","ankle","wrist"],"fetchedAt":"2026-05-19T22:46:04.833Z"},{"id":"full_commission-H204976-2024-10-31","awccNumber":"H204976","decisionDate":"2024-10-31","decisionYear":2024,"opinionType":"full_commission","claimantName":"Lyna Beals","employerName":"Milligan Racing (allen Milligan)","title":"BEALS VS. MILLIGAN RACING (ALLEN MILLIGAN) AWCC# H204976 & H306277 October 31, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Beals_Lyna_H204976-H306277_20241031.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Beals_Lyna_H204976-H306277_20241031.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NOS.  H204976 & H306277  \n \nLYNA M. BEALS, \nEMPLOYEE \n \nCLAIMANT \nMILLIGAN RACING (ALLEN MILLIGAN),  \nEMPLOYER \n \nRESPONDENT \nLIBERTY MUTUAL INSURANCE CORP./ \nLIBERTY MUTUAL GROUP, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED OCTOBER 31, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as modified. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nMay 9, 2024.  The administrative law judge found that the claimant proved \nshe sustained a compensable neck injury on May 11, 2022.  The \nadministrative law judge awarded temporary total disability benefits and \ntemporary partial disability benefits.  After reviewing the entire record de \nnovo, the Full Commission affirms the administrative law judge’s finding that \nthe claimant proved she sustained a compensable neck injury on May 11, \n2022.  The Full Commission finds that the claimant proved she was entitled \nto temporary total disability benefits beginning May 14, 2022 and continuing \n\nBEALS - H204976 & H306277  2\n  \n \n \nthrough January 12, 2023.  We find that the claimant proved she was \nentitled to temporary partial disability benefits beginning January 13, 2023 \nand continuing until a date yet to be determined.       \nI.  HISTORY \n Lyna Beals, now age 51, testified that she became employed with \nthe respondent, Milligan Racing, in July 2021.  Ms. Beals testified that she \nwas hired to be a “groom” for the respondent-employer, a horse trainer.  \nThe claimant testified that she was eventually promoted to the position of \nAssistant Trainer.       \nThe parties stipulated that the employee-employer-carrier \nrelationship existed at all pertinent times, including April 16, 2022.  The \nclaimant testified on direct examination: \n Q.  Now, what happened on April 16\nth\n of 2022? \nA.  I was in the paddock.  The paddock is this event where the \nlive races come and there’s several stalls 1 through 9 on one \nside, and then 10 through 14 on the other.  I was in stall 8 and \nthe groom, James Aker, he had the horse....So I was standing \nto the right of the horse on the horse’s right front leg, and she \nhas never been in the paddock before for any live race.  She \nis what they call a first-time starter, and so she was very \nnervous and she had jumped and flipped over, and the groom \nhad to take her and walk her a few laps....I was in her right \nfront leg area and the horse just reared up, lunged forward, \nand I was right in her line of fire on the front right of her arm.  \nAnd all I know is I went flying past the 9 hole all the way to the \n– almost to the wall where the people were, and when I \nlanded, I landed on my right shoulder and I hit my right side of \nmy head on the cement, and I landed on my right knee, as \nwell. \n \n\nBEALS - H204976 & H306277  3\n  \n \n \n An Oaklawn Emergency Medical Services ACCIDENT REPORT was \nprepared on April 16, 2022: \nDescription of Accident:  EMS was sitting in the paddock \nwatching the 3\nrd\n race when the #8 horse Chaos Magic reared \nup, and caused the Patient to slam into the ground Injuring \nher elbow, and head.  Ems checked her out, and gave her two \ncold compresses.  She declined an ambulance, and signed an \nAMA.   \n \n The claimant testified that the respondents directed her to treat at \nHot Springs – Sherwood Urgent Care, where the claimant was seen on \nApril 18, 2022:  “Patient comes in today for a Pain, Shoulder, Pain and \nPain, Neck.  She was hurt Saturday while working with horses at racetrack.  \nShe states she was pushed over striking her right shoulder and her neck \nhurts....Pt is here in clinic with complaints of a horse kicking her, with \ninjuries caused for x-ray.”  The assessment was “Pain in right shoulder” and \n“Cervicalgia.”  It was noted, “Xrays are negative.” \n The claimant followed up at Sherwood Urgent Care on April 21, \n2022:  “Pt came in on 04/18/22 stating she was kicked by a horse 2 days \nbefore.  Pt was kicked on the left side by horse but this caused her to fall \nand she landed hard on her right side striking head on ground.  Xrays \nperformed of shoulder and cervical spine at WNL’s....Symptoms are now \nbetter....ROM in neck is now normal.”  The assessment was “Contact with \nhorse, struck, initial encounter.” \n\nBEALS - H204976 & H306277  4\n  \n \n \nThe parties stipulated that the employee-employer-carrier \nrelationship existed on May 11, 2022.  The claimant testified on direct \nexamination: \nQ.  So did you continue working for [the respondents] during \nthis time that you were getting treatment at Urgent Care? \nA.  Yes.  I worked every day.  There was never a break. \nQ.  Did they have you on light duty? \nA.  No.  Actually, I had more workload....I had to cover \neverything when it came to cleaning out the stalls, gutting the \nstalls.  That meant wheelbarrows full out of all 25 stalls, and \nyou have to just have it clean or else there’s a deposit that he \nwould lose out on, and so everything has to be removed and \nmoved to the farm, which meant the tack, the saddles, bins, \nthe washing machine.  I had to move all of that with my \nhusband in his truck, which was approximately six truckloads \nfull of – of heavy items that I was not supposed to lift.   \nQ.  So what time period was that, that you were doing this \nwork? \nA.  This was around May 11\nth. \n There were horses already \nshipping out and we have, like, a week for us to be out of \nOaklawn completely.  Even if the horses are gone, you still \nhave to clean the remnants of what’s left.   \nQ.  Okay.  So are you still working for Mr. Milligan now? \nA.  No.  On May 14\nth\n I was at the farm working in Royal and \nmy back was out due to all of that lifting and the washing \nmachine and gutting the stalls.  It tore my back up where my \nback was completely out, amongst my shoulder being injured, \nas well, and my neck and everything.  \n \n Thomas Beals, the claimant’s husband, testified and corroborated \nthe claimant’s testimony that she had been performing clean-up work for \nthe respondents.  The respondents’ attorney cross-examined Mr. Beals: \n Q.  You said that she worked up until she got hurt in May? \n A.  Yes, sir.... \nQ.  Did she, as this medical report says on 5-11, she reinjured \nher right shoulder and her neck loading a truck? \n\nBEALS - H204976 & H306277  5\n  \n \n \nA.  Yes.  Yes.  She was in pain immensely.  Honestly, you \nknow, personally I don’t think she should have been doin’ all \nthat but, I mean, yes, she did hurt herself again.   \nQ.  And that’s when she stopped working? \nA.  Yes, and she – then she didn’t no more.   \nQ.  Okay.  And did she – did she tell you she hurt herself \nloading that truck, “I hurt my back”?   \nA.  Yeah.  She was in tears.  She was in a lot of pain.   \n \n An administrative law judge examined Thomas Beals during a \nhearing held January 20, 2023: \nJUDGE BLACK:  Concerning this May 11\nth\n incident, were you \npresent when she allegedly had another injury? \nA.  Yes.  We were loadin’ a truck. \nQ.  What happened? \nA.  We were pickin’ up either a washer or a dryer, it may have \nbeen a little fridge, and she went to pick it up and then she \njust gave out, and I was like, “What’s wrong?”  And she’s like, \n“I hurt myself again.”  And I was like, “Let me get it.”  And I got \nin the truck and she was kinda just holdin’ her neck and her \nshoulder, so I was just – you know, I knew she was in pain \nand I didn’t wanna, you know, I guess interrogate her or \nnothin’. \n \n The claimant testified that she hired another individual to assist with \ncaring for the respondents’ horses, but that the respondent-employer did \nnot approve of the new hire.  The claimant testified on direct examination: \nQ.  So after Mr. Milligan was upset about this guy that you \nwere having work for you, what happened? \nA.  He called me.  I was at the farm and he called and said he \ndoes not want that guy there and he does not want him \nworking.  And he said, “Unless you are 100% better, I don’t \ncare if it’s one year or 10 years from now, do not come back.”   \nQ.  Okay.  And was that the last time that you worked for him? \nA.  Yes.  That was when I had to gather all my stuff at the \nfarm, all my tack and everything that I had out there. \n \n\nBEALS - H204976 & H306277  6\n  \n \n \n The claimant’s testimony indicated that the respondents terminated \nher employment on or about May 14, 2022.       \nThe claimant treated at Sherwood Urgent Care on June 14, 2022: \nPatient comes in today for a clearance to return to work, Pain, \nNeck, Pain and Pain, Back.... \nPt had an injury at work on 04-18-22 and was seen in clinic.  \nPt returned again for same injury on 04/21/2022.  Pt had a CT \nof head performed on 04/26/22 d/t head injury and migraines \nafter incident.  Pt received the results of 04-28-22.  Pt was told \nto come back in for clearance to return to work.  Pt never \nreturned.  Pt states today her employer told her she can not \nreturn to work until she is “100% better.”  Pt states she does \nnot feel 100% better and wants to know what she needs to \ndo.... \nPt reports continued right sided neck pain from the initial \ninjury.  She did have c-spine and right shoulder xrays when \nshe was in clinic which were found to be normal.... \nReports she hurt her lower back in a separate incident 5/11 \nlifting something at work and it has also continued to bother \nher.... \n \n It was noted on June 14, 2022, “She reports she continues to have \nright neck/shoulder pain.  There was also a secondary lower back injury \nthat happened in a separate incidence 5/11.  I have recommended the \npatient go to physical therapy and follow up in clinic in 2 weeks.  If she does \nnot improve with physical therapy we will move forward with MRI [of] her \nneck and shoulder.  She will continue to be on light duty for now, I do not \nfeel she needs to be placed completely off work.”  The assessment was \n“Pain in right shoulder” and “Strain of muscle, fascia and tendon of lower \nback[.]”   \n\nBEALS - H204976 & H306277  7\n  \n \n \nThe record includes an Excuse for Work dated June 14, 2022:  “The \nabove patient was seen in our clinic for a work related injury/illness and was \nunder the care of Chreene, Robyn, NP.”  The Excuse for Work indicated, \n“FIT FOR RESTRICTED/ACCOMMODATED DUTY” from June 14, 2022 to \nJune 28, 2022.   \n The claimant followed up at Sherwood Urgent Care on June 28, \n2022: \nPt presents to clinic for follow up on neck and back pain.  Pt \nreports no improvement with collar bone or Right Shoulder.  \nPt states she has not returned to work.  Pt also states that \nphysical therapy called and her first appointment is \n7/7/2022.... \nCalled pts boss, Jeanette Milligan to clarify if the patient could \nhave light duty as the patient continues to state she has been \nunable to work due to her boss stating she had to be “100% \nbefore returning to work.”  Pts boss states she never told her \nthat and that she has not been employed with her since 5/9.  \nAt the last visit the patient stated she was injured at work on \n5/11 as well as reinjuring her right shoulder and neck.  \nDiscussed with patient that her boss states she was no longer \nemployed with them and that I was unsure if this was still \ncovered with workers comp as she was not an employee. \nAlternate ice and heat to your shoulder.  Continue with anti-\ninflammatories and physical therapy as planned.   \n \n A physical therapist noted on July 7, 2022, “This 49 y/o pt presented \nto the therapy clinic with complaints of right shoulder pain following a work \nrelated accident.  She works with a horse trainer and was kicked by a horse \nmid April.  She was kicked on the left side and fell onto concrete on the right \nside.  When she fell, she landed on her shoulder and hit her head....She \n\nBEALS - H204976 & H306277  8\n  \n \n \nwas first placed on light duty, but due to her work related activities, she has \nnot been able to work since the incident.”  The claimant began a program of \nphysical therapy beginning July 7, 2022, and the diagnosis included \n“Cervicalgia.”   \nA Physical Therapy Discharge Summary was prepared on August \n25, 2022: \nPatient completed 50% of her written POC.  During the course \nof her therapy sessions, she was more than 15 minutes late \nnumerous times, no showed twice, and called to cancel within \n24 hours notice once.  Due to her habitual no show or \nattending therapy late, she was taken to the utilization review \nwith other therapist to discuss the course of action.  With her \nnot attending therapy in a timely manner and no showing her \nappointments, she will be discharged from therapy.  Her \ndischarge and no show/tardiness will be relayed to her case \nmanager for workmans compensation.   \n \n A pre-hearing order was filed on September 27, 2022.  The claimant \ncontended, “Claimant contends she is entitled to medical treatment for her \nneck, right shoulder, and low back.  She contends she is entitled to \ntemporary total disability as result of her injuries sustained on April 16, \n2022.  Claimant reserves all other issues.”   \n The parties stipulated, “The respondents have controverted this \nclaim in its entirety.”  The respondents contended, “The claimant worked as \na groomer at Oaklawn Park during the racing season.  The claimant was \nnot injured due to a fall she had at work on 4-16-22.  She does not have a \ncompensable neck injury or head injury as there are no objective medical \n\nBEALS - H204976 & H306277  9\n  \n \n \nfindings.  X-rays and CT scans of the neck, shoulder and head have all \nbeen normal.”   \n The parties agreed to litigate the following issues: \n1.  Whether the Claimant sustained compensable injuries to \nher shoulders, right elbow, and right knee. \n2.  Whether the Claimant is entitled to temporary total \ndisability (TTD) compensation beginning on April 17, 2022 \nand continuing through a date yet to be determined. \n3.  Whether the Claimant is entitled to medical benefits for her \nalleged injuries. \n4.  Whether the Claimant’s attorney is entitled to a \ncontroverted attorney’s fee.   \n \n An MRI of the claimant’s cervical spine was taken on November 16, \n2022: \n  HISTORY:  Diffuse neck pain.   \nFINDINGS:  Structures at the craniovertebral junction are \nunremarkable.  The normal lordotic curvature is minimally \nreversed....Disc desiccation noted throughout the C-spine. \nC2-3:  Unremarkable. \nC3-4:  Unremarkable. \nC4-5:  Mild bilateral facet arthropathy. \nC5-6:  Mild broad-based posterior annular disc bulge.  Mild \nbilateral facet and uncovertebral osteophyte formation.  \nModerate right and mild left neural foraminal stenosis. \nC6-C7:  Moderate bilateral facet arthropathy. \nC7-T1:  Mild bilateral facet arthropathy. \nNo cord signal abnormality.   \nIMPRESSION:  At C5-6, there is moderate right neural \nforaminal stenosis nerve impingement. \nMultilevel degenerative disc and facet changes. \n \n On or about December 19, 2022, the claimant began treating with \nWilliam James, CRNA under the supervision of Dr. John R. Pace.  William \nJames reported, “Neck pain with RUE NT and paresthesias.  Both hands \n\nBEALS - H204976 & H306277  10\n  \n \n \nare numb constantly.  Onset 4/16/22.  Pain into scapula region.  Has went \nto PT.  Reports while majority of symptoms are in RUE; numbness of hands \nis greater left than right.”  Mr. James assessed “1.  Cervical radiculopathy,” \nand he administered C5-6 epidural steroid injections on December 20, 2022 \nand January 3, 2023. \n A hearing was held on January 20, 2023.  The claimant testified on \ndirect examination: \nQ.  So have you worked anywhere else since your \nemployment with [the respondents] ended? \nA.  I always loved horses, obviously, and I just – with my \nhands, I have numbness in my fingers in both hands and \nsharp pains.  I cannot feel a lot in my forearm and my fingers \nso I can’t really do what I was set out to do, which was \ngrooming.  It’s my passion, so I what they called downgraded \nto a hot walker at Oaklawn.  A friend of mine – since they \nalways look for me for work, one of the trainers had asked me, \n“Do you know any hot walkers?  I need a hot walker.”   \nQ.  So did you start as a hot walker? \nA.  Yeah. \nQ.  When was that? \nA.  This was last Friday.   \nQ.  Okay.  Was that the first work you had done since leaving \nMr. Milligan? \nA.  Yes.   \nQ.  All right.  Do  you anticipate to continue with that job? \nA.  I – I’m giving it a shot.... \nQ.  Do you do any other work for this employer, where you are \nnow, other than walking the horses? \nA.  No.  This is just part-time walking, just simple walk in a \ncircle. \nQ.  Okay.  And how much do you get paid for that? \nA.  It’s $250.00 a week cash.   \nQ.  And how many hours a week are you working? \nA.  Four hours a day, if that. \nQ.  Okay.  So is that four hours a day, five days a week? \n\nBEALS - H204976 & H306277  11\n  \n \n \nA.  Seven days in the horse business.... \nQ.  And has any doctor released you to full duty? \nA.  Not yet, no.     \n \n In the meantime, William James assessed “1.  Arthropathy of \ncervical spine facet joint” on January 31, 2023.  Mr. James performed a \n“pericapsular facet joint injection” at C5/6.   \n William James’ assessment on February 28, 2023 was “1.  Cervical \nradiculopathy – EMG/NCV BUE, RTC with results.”  Mr. James also noted, \n“NEUROLOGIST REFERRAL – Schedule Within:  provider’s discretion.”         \n An administrative law judge filed an opinion on April 19, 2023.  The \nadministrative law judge found, in pertinent part: \n3.  The Claimant proved by a preponderance of the evidence \nthat she sustained a compensable injury to her neck on April \n16, 2022, which resolved no later than April 21, 2022. \n4.  The Claimant failed to prove by a preponderance of the \nevidence her entitlement to any temporary total disability \ncompensation. \n5.  The Claimant proved by a preponderance of the evidence \nthat the medical treatment she received on April 18 and 21, \n2022 was reasonable and necessary treatment for her \ncompensable neck injury.  However, the Claimant failed to \nprove her need for any future medical treatment for her neck \ninjury.   \n \n There was no appeal of the administrative law judge’s opinion filed \nApril 19, 2023.  The administrative law judge thereafter entered an agreed \nstipulation, “5.  All matters concerning AWCC Claim No. H204976 were \nresolved in my April 19, 2023, Opinion and are res judicata.”  \n\nBEALS - H204976 & H306277  12\n  \n \n \n A pre-hearing order was filed on November 8, 2023.  The claimant \ncontended, “Claimant contends she is entitled to medical treatment for her \nneck injury, exacerbated on May 11, 2022.  Whether Claimant is entitled to \ntemporary total disability and temporary partial disability benefits from date \nlast worked full time to a date yet to be determined.  Claimant reserves all \nother issues.”   \n The parties stipulated, “4.  The Respondents have controverted this \nclaim in its entirety.”  The respondents contended, “Respondents will assert \nthe following defenses:  The claimant has suggested that her neck injury \nwas exacerbated by another event on 5-11-22.  All matters concerning \nclaim #H204976 were decided in the 4-19-23 opinion and are res judicata.  \nIf there was a new incident, it should not be adjudicated under H204976.  \nHowever, the Form C filed on 6-5-23 shows an injury date of 4-16-22.  The \nclaimant is not entitled to additional treatment for her neck or to TTD per the \nprevious decision that was not appealed.” \n The parties agreed to litigate the following issues: \n1.  Whether the Claimant sustained a compensable injury to \nher neck. \n2.  Whether the Claimant is entitled to medical treatment for \nher alleged neck injury. \n3.  Whether the Claimant is entitled to temporary total \ndisability (TTD) compensation. \n4.  Whether the Claimant’s attorney is entitled to a \ncontroverted attorney’s fee. \n \n\nBEALS - H204976 & H306277  13\n  \n \n \n After another hearing, an administrative law judge filed an opinion on \nMay 9, 2024 and found: \n3.  The Claimant proved by a preponderance of the evidence \nthat she sustained a compensable injury to her neck on May \n11, 2022.   \n4.  The Claimant proved by a preponderance of the evidence \nthat the medical treatment of record she received was \nreasonable and necessary treatment for her compensable \nMay 11, 2022 neck injury.  She also proved her entitlement to \nthe additional medical treatment recommended for her neck \nby Dr. John Pace, in the form of a referral to a \nspecialist/neurologist and EMG/NCV studies of both her upper \nextremities.   \n5.  The Claimant proved her entitlement to temporary total \ndisability from May 12, 2022 until January 12, 2023.  She also \nproved her entitlement to temporary partial disability from the \ndate she began working part-time and continuing.   \n \n The respondents appeal to the Full Commission. \nII.  ADJUDICATION \n A.  Res Judicata \n The respondents contend that the claimant’s entitlement to benefits \nis res judicata.  The purpose of the res judicata doctrine is to put an end to \nlitigation by preventing a party who had one fair trial on a matter from \nrelitigating the matter a second time.  Cox v. Keahey, 84 Ark. App. 121, 133 \nS.W.3d 430 (2003), citing Brandon v. Arkansas W. Gas Co., 76 Ark. App. \n201, 61 S.W.3d 193 (2001).  Res judicata applies where there has been a \nfinal adjudication on the merits of the issue by a court of competent \njurisdiction on all matters litigated and those matters necessarily within the \n\nBEALS - H204976 & H306277  14\n  \n \n \nissue which might have been litigated.  Beliew v. Stuttgart Rice Mill, 64 Ark. \nApp. 334, 987 S.W.2d 281 (1998).  The key question regarding the \napplication of res judicata is whether the party against whom the earlier \ndecision is being asserted had a full and fair opportunity to litigate the issue \nin question.  Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993).  Res \njudicata applies to decisions of the Commission.  Harvest Foods v. \nWasham, 52 Ark. App. 72, 914 S.W.2d 776 (1996).     \n In the present matter, the Full Commission finds that the claimant’s \nentitlement to workers’ compensation benefits is not res judicata.  A pre-\nhearing order was filed on September 27, 2022.  The claimant contended, \namong other things, that she was entitled to temporary total disability \nbenefits as a result of injuries she sustained on April 16, 2022.  The \nrespondents contended, among other things, that the claimant “was not \ninjured due to a fall she had at work on 4-16-22.”  The parties did not agree \nto litigate compensability concerning an injury occurring any other date \nexcept April 16, 2022.  After a hearing, an administrative law judge filed an \nopinion on April 19, 2023.  The administrative law judge found, among other \nthings, that the claimant “sustained a compensable injury to her neck on \nApril 16, 2022, which resolved no later than April 21, 2022.”  The \nadministrative law judge thereafter entered an agreed stipulation, “5.  All \n\nBEALS - H204976 & H306277  15\n  \n \n \nmatters concerning AWCC Claim No. H204976 were resolved in my April \n19, 2023, Opinion and are res judicata.”   \n The party asserting the defense of res judicata has the burden of \nproof.  JeToCo Corp. v. Hailey Sales Co., 268 Ark. 340, 596 S.W.2d 703 \n(1980).  In the present matter, the claimant does not contend that she is \nentitled to benefits related to the compensable injury which occurred on \nApril 16, 2022, and which the administrative law judge determined “resolved \nno later than April 21, 2022.”  Rather, the claimant contends that she is \nentitled to benefits related to an accidental injury allegedly occurring on May \n11, 2022.  The Full Commission recognizes that there was testimony at the \nprevious hearing which pertained to the alleged May 11, 2022 accident, but \nthere was not litigation or an adjudication related to same.  The \nrespondents did not prove that the claimant’s entitlement to benefits related \nto an accident occurring on May 11, 2022 was res judicata.       \n B.  Compensability \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.]   \n \n\nBEALS - H204976 & H306277  16\n  \n \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).   \n An administrative law judge found in the present matter, “3.  The \nClaimant proved by a preponderance of the evidence that she sustained a \ncompensable injury to her neck on May 11, 2022.”  The Full Commission \naffirms this finding.  The parties stipulated that the employment relationship \nexisted on May 11, 2022.  The claimant testified that she was cleaning \nstalls for the respondents, and that this work required lifting heavy \nappliances.  The claimant testified that she injured her neck while lifting a \nwashing machine on or about May 11, 2022.  The claimant’s husband, \nThomas Beals, corroborated the claimant’s testimony.  The administrative \nlaw judge examined Thomas Beals at hearing, and Mr. Beals expressly \ntestified that the claimant injured her neck while lifting a heavy appliance in \n\nBEALS - H204976 & H306277  17\n  \n \n \nthe course of employment.  It was noted at Sherwood Urgent Care on June \n28, 2022 that the claimant had injured her neck on May 11, 2022.     \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that she sustained a “compensable injury” \nin accordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012).  The \nclaimant proved that she sustained an accidental injury causing physical \nharm to her neck.  The claimant proved that the accidental injury arose out \nof and in the course of employment, required medical services, and resulted \nin disability.  The injury was caused by a specific incident which was \nidentifiable by time and place of occurrence on or about May 11, 2022.  The \nclaimant also established a compensable injury by medical evidence \nsupported by objective findings which included reversal of the normal \nlordotic curvature as demonstrated in the cervical MRI taken November 16, \n2022.  Such an abnormality can be interpreted as objective medical \nevidence establishing a compensable injury.  See Saline Cnty. Judge v. \nCrouch, 2013 Ark. App. 589; King v. Peopleworks, 97 Ark. App. 105, 244 \nS.W.3d 729 (2006).  The Full Commission finds that the objective medical \nevidence was causally related to the compensable injury which occurred on \nMay 11, 2022 and was not the result of a pre-existing condition or prior \ninjury.   \n C.  Temporary Disability \n\nBEALS - H204976 & H306277  18\n  \n \n \n Temporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages, whereas \ntemporary partial disability is that period within the healing period in which \nthe employee suffers only a decrease in her capacity to earn the wages she \nwas receiving at the time of the injury.  Ark. State Hwy. Dept. v. Breshears, \n272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing period” means “that period \nfor healing of an injury resulting from an accident.  Ark. Code Ann. §11-9-\n102(12)(Repl. 2012).  Whether an employee’s healing period has ended is \na question of fact for the Commission.  Dallas County Hosp. v. Daniels, 74 \nArk. App. 177, 47 S.W.3d 283 (2001). \n An administrative law judge found in the present matter, “5.  The \nClaimant proved her entitlement to temporary total disability from May 12, \n2022 until January 12, 2023.  She also proved her entitlement to temporary \npartial disability from the date she began working part-time and continuing.”   \n The Full Commission finds that the claimant proved she was entitled \nto temporary total disability benefits beginning May 14, 2022 and continuing \nuntil January 12, 2023.  We have determined supra that the claimant \nproved she sustained a compensable injury to her neck on May 11, 2022.  \nThe claimant’s testimony indicated that she continued to work until the \nrespondents terminated her employment on or about May 14, 2022.  The \nFull Commission therefore finds that the claimant remained within a healing \n\nBEALS - H204976 & H306277  19\n  \n \n \nperiod and was totally incapacitated from earning wages beginning May 14, \n2022.  The claimant testified at a hearing held January 20, 2023 that she \nbegan working part-time for another employer the previous Friday, January \n13, 2023.  The record therefore shows that the claimant was no longer \ntotally incapacitated from earning wages as of January 13, 2023.  The \nclaimant proved that she was entitled to temporary total disability benefits \nbeginning May 14, 2022 and continuing until January 12, 2023.   \nThe evidence does not demonstrate that the claimant was totally \nincapacitated from earning wages after January 12, 2023.  However, the \nrecord shows that the claimant has remained within a healing period since \nthat time.  No doctor or treating medical professional has opined that the \nclaimant’s healing period has ended for the compensable injury the \nclaimant sustained to her neck on May 11, 2022.  A hearing was held on \nFebruary 9, 2024.  The claimant testified on cross-examination that she had \nbeen employed with “Doc Clement” for approximately one month.  The \nclaimant testified, “It’s a full watch center, and basically you watch the \ncameras and look for foals and mares in distress.  It’s still horses but it’s \nnothing that I’m used to doing, which was grooming.”  The claimant testified \nthat she was working approximately 30 hours per week.  The Full \nCommission finds that the claimant proved she remained within a healing \n\nBEALS - H204976 & H306277  20\n  \n \n \nperiod and was partially incapacitated from earning wages beginning \nJanuary 13, 2023 until a date yet to be determined. \nAfter reviewing the entire record de novo, therefore, the Full \nCommission finds that the claimant proved by a preponderance of the \nevidence that she sustained a compensable injury to her neck on May 11, \n2022.  The respondents did not prove that res judicata bars the claim.  The \nclaimant proved that the medical treatment of record following the \ncompensable injury, including the February 28, 2023 recommendation of \nreferral to a neurologist, was reasonably necessary in accordance with Ark. \nCode Ann. §11-9-508(a)(Repl. 2012).  The Full Commission finds that the \nclaimant proved she was entitled to temporary total disability benefits \nbeginning May 14, 2022 and continuing through January 12, 2023.  The \nclaimant proved that she was entitled to temporary partial disability benefits \nbeginning January 13, 2023 until a date yet to be determined.   \nThe claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \non appeal to the Full Commission, the claimant’s attorney is entitled to an \nadditional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b)(Repl. 2012). \n \n \n\nBEALS - H204976 & H306277  21\n  \n \n \nIT IS SO ORDERED.         \n \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved she sustained a compensable injury to her neck on May \n11, 2022, for which she is entitled to temporary total disability benefits, \ntemporary partial disability benefits and medical benefits.  Compensability \nof the claimant’s May 11, 2022 neck injury is res judicata. \nRes judicata applies where there has been a final adjudication on the \nmerits of the issue by a court of competent jurisdiction on all matters \nlitigated and those matters necessarily within the issue which might have \nbeen litigated.  Castleberry v. Elite Lamp Company, 69 Ark. App. 359, 13 \nS.W.3d 211 (2000).  It is well settled that this doctrine applies to decisions \nof the Commission.  Harvest Foods v. Washam, 52 Ark. App. 72, 914 \nS.W.2d 776 (1996).  \n\nBEALS - H204976 & H306277  22\n  \n \n \nThe key question regarding the application of res judicata is whether \nthe party against whom the earlier decision is being asserted had a full and \nfair opportunity to litigate the issue in question.  Castleberry, 69 Ark. App. \n359, 13 S.W.3d 211.  Res judicata bars the relitigation of not only issues \nactually litigated, but also those issues that could have been litigated. \nRothrock v. Advanced Envtl. Recycling, 2018 Ark. App. 88, 544 S.W.3d 61 \n(2018).  \nFor the purposes of workers’ compensation claims, a decision \nbecomes final and res judicata applies when no appeal is made from a \ndecision within 30 days.  Harvest Foods, 52 Ark. App. 72, 914 S.W.2d 776. \n In the present matter, the question is not whether the claimant’s May \n11, 2022 injury was actually litigated, but rather whether it could have been \nlitigated at the 2023 hearing.  The alleged injuries here occurred less than \none month apart.  \nThe claimant obtained an MRI of her cervical spine on November 16, \n2022, showing foraminal stenosis and nerve impingement at C5-6 and \nbegan treating with Mr. William James, CRNA in December 2022, receiving \nsteroid injections for that issue.  However, the claimant did not file a form \nAR-C for her May 2022 injury until September 26, 2023, conveniently after \nthe administrative law judge’s April 2023 opinion. \n\nBEALS - H204976 & H306277  23\n  \n \n \n The claimant is clearly attempting to resurrect issues that she had a \nfull and fair opportunity to litigate in 2022, using our procedures as a safety-\nnet for a claim supported by her own self-serving testimony.  The claimant \nfailed to address her May 2022 injury at the 2023 hearing and for this \nreason, this issue is res judicata.  \nThere are simply no objective findings that an injury occurred on May \n11, 2022, and for these reasons the claimant has failed to meet her burden \nof proving that she sustained a compensable injury on that date. \nArkansas Code Annotated section 11-9-102 (4)(A)(i) provides that a \ncompensable injury includes “[a]n accidental injury causing internal or \nexternal physical harm to the body. . . An injury is ‘accidental’ only if it is \ncaused by a specific incident and is identifiable by time and place of \noccurrence.”  \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  This, therefore, requires that a claimant establish by a \npreponderance of the evidence: (1) an injury arising out of and in the course \nof employment; (2) that the injury caused internal or external physical harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings establishing an \n\nBEALS - H204976 & H306277  24\n  \n \n \ninjury as defined in Ark. Code Ann. §11-9-102(16) and; (4) that the injury \nwas caused by a specific incident identifiable by time and place of \noccurrence.  Ark. Code Ann. § 11-9-102(4)(A)(i). \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\" Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16).  \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness. Id.  \nThe Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony that it deems worthy of belief. \nWhite v. Gregg Agricultural Enterprises, 72 Ark. App. 309, 37 S.W.3d 649 \n(2001). \nHere, the self-serving testimony of the claimant and her husband are \nthe only evidence that the claimant’s alleged May 2022 injury was the \nsource of her cervical problems.  The claimant is a 50-year-old woman with \n\nBEALS - H204976 & H306277  25\n  \n \n \nneural impingement that is largely degenerative.  There are no objective \nfindings linking these issues to the claimant’s alleged injury.  \nAccordingly, for the reasons set forth above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":37738,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. H204976 & H306277 LYNA M. BEALS, EMPLOYEE CLAIMANT MILLIGAN RACING (ALLEN MILLIGAN), EMPLOYER RESPONDENT LIBERTY MUTUAL INSURANCE CORP./ LIBERTY MUTUAL GROUP, INSURANCE CARRIER/TPA RESPONDENT","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["neck","shoulder","knee","cervical","back","strain"],"fetchedAt":"2026-05-19T22:29:44.863Z"},{"id":"full_commission-H204710-2024-10-31","awccNumber":"H204710","decisionDate":"2024-10-31","decisionYear":2024,"opinionType":"full_commission","claimantName":"Alice Lawrence","employerName":"Searcy County Judge","title":"LAWRENCE VS. SEARCY COUNTY JUDGE AWCC# H204710 October 31, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Lawrence_Alice_H204710_20241031.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Lawrence_Alice_H204710_20241031.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H204710  \n \nALICE E. LAWRENCE, \nEMPLOYEE \n \nCLAIMANT \nSEARCY COUNTY JUDGE,  \nEMPLOYER \n \nRESPONDENT \nAAC RISK MANAGEMENT SERVICES, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED OCTOBER 31, 2024  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE NEAL L. HART, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE JASON M. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed in part as modified, \nreversed in part. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nJune 20, 2024.  The administrative law judge found that the claimant proved \nshe sustained a compensable injury to her left leg and back.  The \nadministrative law judge found that the claimant proved she was entitled to \ntemporary total disability benefits beginning March 3, 2023 until a date to be \ndetermined.  After reviewing the entire record de novo, the Full Commission \nfinds that the claimant did not prove by a preponderance of the evidence \nthat she sustained a compensable back injury.  The claimant proved that \nthe medical treatment of record provided in connection with her \n\nLAWRENCE - H204710  2\n  \n \n \ncompensable left leg injury was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  The Full Commission finds that \nthe claimant proved she was entitled to additional temporary total disability \nbenefits from March 3, 2023 through January 25, 2024.       \nI.  HISTORY \n The record indicates that Alice Lawrence, now age 46, underwent a \nlumbar fusion at L5-S1 performed by Dr. Edward H. Saer, III on May 23, \n2007.  Dr. Saer noted on January 3, 2008, “She’s going to therapy and \nhasn’t completed the course yet, but she feels like she’s getting stronger.  \nThe only thing that she’s noticed is that when she walks on the treadmill \nsometimes her left toe drags.”  The claimant followed up with Dr. Saer on \nFebruary 14, 2008:  “She says occasionally she will still drag her toe when \nshe walks on the treadmill....I am going to give her a release to return to \nher regular job duties.  She is going to need to be a little careful and \nprobably needs to alter some of her body mechanics, and we discussed \nthat.  I will release her at this point, but would be happy to see her again at \nany time.”   \n Dr. Saer informed a representative of Public Employee Claims on \nApril 7, 2008, “I would estimate that she has a 2% impairment for her \nsurgery done by Dr. Williams in 2005, and an additional 5% whole body \n\nLAWRENCE - H204710  3\n  \n \n \nimpairment for her fusion done May 23, 2007.  This combines for a 7% \nwhole body impairment rating[.]”   \n Dr. Saer noted in October 2008 that a vehicle the claimant was \ndriving had been “T-boned” on the passenger side.  Dr. Saer’s impression \nwas “Lumbar strain/sprain secondary to motor vehicle accident.”  Dr. Saer \nperformed a posterior fusion/TLIF, L4-5 on November 30, 2016.  The pre- \nand post-operative diagnosis was “1.  Degenerative spondylolisthesis, L4-5.  \n2.  Facet cyst L4-5 left with significant foraminal and lateral recess stenosis.  \n3.  Prior L5-S1 fusion.” \n An APRN noted on December 20, 2016, “She still has some sense of \nsoreness and weakness in the left leg....I think her left leg will continue to \nimprove over time.”  Dr. Saer reported on January 31, 2017, “She is still \nhaving some problems with her left leg.  In the mornings when she gets up \nshe has difficulty getting out of bed.”  Dr. Saer noted on April 4, 2017, “4 \ndays ago she was walking up steps and could not pick up her left foot.  It \ncaught and she fell into the wall.”       \n The claimant testified that she became employed with the \nrespondents, Searcy County, on November 29, 2021.  The claimant \ntestified that she drove a “compacter truck” for the respondent-employer.  \nThe claimant’s testimony indicated that her work for the respondents \nsometimes required manual labor.  The parties stipulated that the \n\nLAWRENCE - H204710  4\n  \n \n \nemployee-employer-carrier relationship existed on June 16, 2022.  The \nclaimant testified on direct examination: \n Q.  Tell us what happened, please. \nA.  I had gotten out of the truck to shut the back doors to \nmake sure that no trash falls out when we are going....And I \nwalked back around the truck.  And while I was walking, \nanother truck pulled up behind us and for some reason \nhonked the horn....And he put the truck in drive, and when he \ngassed the truck to go forward, it hit me and knocked me \ndown in front of the back tires. \nQ.  Did the bed of the truck hit you? \nA.  Yes. \nQ.  Knocked you down in front of the tires and then what \nhappened? \nA.  It went up on my left foot. \nQ.  What did? \nA.  The back tires.  The dual tires.  And I couldn’t get away \nfrom it, so I tried to roll away from it.... \nQ.  And then what? \nA.  And then when he come up on my leg, and I was \nscreaming for him to stop.  And when he got up, he – my dog \nactually jumped out.  When my dog jumped out, he stopped.  \nAnd when he stopped, he was on my lower back, and I \ncouldn’t really yell anymore because it kind of squeezed the \nbreath out of me.   \nQ.  The wheels were on your back? \nA.  The wheels stopped on my lower back, yes.  And then \nwhen the dog jumped out, he stopped, and then he backed off \nof me.... \nQ.  At that point what was the condition of your leg? \nA.  I could not move it.  I could not put weight on it.  My foot \nwas twisted to the inside towards my other leg.  My knee was \ncurled.  It had it all – it was all messed up....   \n \n The respondents’ attorney cross-examined the claimant: \nQ.  So it’s your testimony that this truck ran all the way over \nyour entire left leg? \n  A.  Yes. \n  Q.  Dual truck tires? \n\nLAWRENCE - H204710  5\n  \n \n \n  A.  Yes. \n  Q.  All the way onto your lower back? \n  A.  Yes.... \n  Q.  What marks did you have to your abdomen? \n  A.  I had tire tread on my back where he stopped.... \nQ.  So it’s your testimony that you were not flat on your belly \nor your face, you were on your side as this over 5000-pound \ntruck rolled all the way to your lower back? \nA.  Yes.... \nQ.  And is it your testimony that this truck would have rolled \nover your foot, knee, hip, and then onto your lower back? \nA.  Yes.     \n \n According to the record, the claimant received emergency treatment \non June 16, 2022: \nALICE LAWRENCE is a 44-year-old female who arrives to the \nED via EMS air transport with the chief complaint that her left \nleg was run over....Patient complains of left thigh and knee \npain.  Patient states she was working and the garbage truck \ndriver was spooked and moved forward where her left leg was \ncaught under the tire and was ran over.  Associated \nsymptoms include:  left thigh and knee pain.  Patient denies \nany other associated symptoms....History limited due to acuity \nof condition and ketamine.... \nMusculoskeletal:  Normal strength, No tenderness, No \nswelling, No deformity.  Good dorsalis pedis and posterior \ntibial pulses.  Bruising and swelling to entire left lower \nextremity.  ROM decreased secondary to pain.... \n \n A physician gave the following impression on June 16, 2022:  \n“Unremarkable for vascular injury or focal hematoma within the CTA \nabdomen, pelvis and lower extremities.  Soft tissue swelling above the knee \njoint.  No fracture deformity.  Right knee Baker’s cyst.” \n An x-ray of the claimant’s pelvis was taken on June 16, 2022 with the \nfollowing findings: \n\nLAWRENCE - H204710  6\n  \n \n \nBones/joints:  Metallic posterior instrumented fusion hardware \nL4 and L5 with lateral fusion mass and L4-L5 intra discal cage \nprosthesis.  No acute fracture.  No subluxation.   \nSoft tissues:  Unremarkable. \nIMPRESSION:  No acute findings.   \n \n An x-ray of the claimant’s left tibia and fibula was taken on June 16, \n2022 with the following findings: \nBones/joints:  No definite cortical step-off deformity of the \nlateral tibial plateau region; if there is any concern for subtle \nhairline fracture, would then recommend CT knee.  Minimal \npatellar spurring superiorly.  Patella appears intact.  Tibia and \nfibula appear intact.   \nSoft tissues:  No suprapatellar effusion present and no lipo \nhemarthrosis fluid level. \nIMPRESSION:  No acute findings.   \n \n The Discharge Diagnosis on June 16, 2022 was “Crush Injury of the \nFoot” and “Knee Sprain, Adult.”  The claimant testified that she did not \nreturn to work following the June 16, 2022 accidental injury.   \nDr. Jose E. Abiseid examined the claimant on June 20, 2022 and \nnoted, “1.  WC pt was ran over by truck....SKIN:  multiple bruises on the left \nside of her leg and thigh.  BACK:  lumbar paraspinal tenderness.”  Dr. \nAbiseid assessed “1.  Multiple traumatic injuries.  2.  Intervertebral disc \ndisorders with myelopathy, lumbar region.  3.  Dorsalgia, unspecified.  4.  \nSciatica, left side.”  Dr. Abiseid noted, “Pt was ran over by a truck and ran \nback over again complaining of left leg and thigh pain and bruises and back \npain.”   \n\nLAWRENCE - H204710  7\n  \n \n \n Dr. Abiseid noted on June 27, 2022, “Pt was involved in [an] accident \nat work [where] she was ran over by a truck twice on legs pt is having \nsevere back pain from the accident then also left ankle turning on its own, \nleg is red and hot to touch going to treat her with antibiotic to prevent staph \nneeds MRI back and left ankle[.]”     \nAn MR of the claimant’s lumbar spine was taken on July 7, 2022 with \nthe impression, “Mild spinal stenosis L3-4.  Surgical changes from L4 to S1 \ndescribed above.” \nDr. Justin Cutler, D.O. began treating the claimant on July 19, 2022: \nThis is a 44 year old female who is being seen for a chief \ncomplaint of left leg.  Work comp – left leg pain.   \n[Ms. Lawrence] reports accident occurring on June 16 where \nshe ended up underneath a garbage truck truck ran up her left \nleg all the way up to her thigh.  Backed off of it.  States that \nshe was lift flighted to Springfield where pelvis and leg with \nCTs.  No fractures were identified.  Was discharged home.  \nSince that time has had pain medicine but no physical \ntherapy.  States swelling in left lower extremity is pretty still \nsevere.... \nHas extreme tenderness on the left lateral thigh at this with \nthickening of the subcutaneous tissue palpable....Has a large \namount of swelling on the medial aspect of the lower leg.  No \nerythema.  Very tense and exquisitely tender to touch.  Has a \nhard time picking her foot up secondary to the pain in her leg.  \nI can passively move her ankle and toes well.   \n2 views of her left tib-fib are taken here in the office and \nreviewed today.  See no fractures or dislocations.  Large \namounts of soft tissue swelling noted.   \nImpression/Plan:  Crush injury to left lower extremity \nsecondary to being run over by a garbage truck.  This is \nclotted just what appears to be some fluid accumulation in the \nher (sic) left lower extremity medial gastroc region.  Like to get \nan ultrasound of this to see if there is fluid that can be \n\nLAWRENCE - H204710  8\n  \n \n \naspirated or even surgically debrided as has not improved \nover the last month.  Has evidence of meralgia paresthetica \nsecondary to nerve injury that [has] occurred to her left lower \nextremity.  At the go ahead to start her on some gabapentin.  \nRecommend trying a steroid pack to see if get some of the \nswelling down as well.  Lots of elevation.  Need to \naggressively start physical therapy to help work on lymphatic \nflow and get swelling down.  See her back in 2 weeks to see \nhow the ultrasound results are and if any of these modalities \nare helping her to improve her.   \n \n Dr. Cutler took the claimant off work on July 19, 2022 “pending MRI.”   \n An Ultrasound Imaging Report was done on July 20, 2022 with the \nimpression, “Complex septated probable hematoma in the medial left calf \nmeasuring 8.0 x 2.0 x 5.5 cm.”   \n Dr. Cutler gave the following impression on July 26, 2022:  “Crush \ninjury to left lower extremity with neuropathy and severe contusions \nincluding a large 8 x 5 and half centimeter hematoma.  Will continue to treat \nnonoperatively as her symptoms are slowly improving.  Physical therapy will \nbe her biggest asset.  We will follow-up in 1 month for recheck.”   \nDr. Cutler continued to provide follow-up treatment, and he kept the \nclaimant off work. \nAn MRI of the claimant’s left knee was taken on September 8, 2022, \nwith the impression, “Examination is limited by patient motion.  There may \nbe some articular cartilage fraying in the medial compartment of the knee.”  \nIn addition, an electromyographer reported on September 8, 2022: \n\nLAWRENCE - H204710  9\n  \n \n \n44 y/o female with c/o LLE injury with being run over by a \ngarbage truck, 3 months ago.  Low back ache and sharp \nintermittent pain with LLE posterior radiation, Hx back surgery \nx4, most recent in 2016.  Ambulates on walker carrying LLE in \nflexion, will not attempt to place foot on floor.  Trace volitional \nfiring of ankle/digit flexors and extensors, inconsistent effort.  \nMarked hematoma on the LLE antero-medial lower leg.... \nFindings:  No significant peroneal motor slowing but \namplitudes are reduced.  Tibial motor values are WNLs.  EMG \nneedle exam reveals increased insertional activity in the left \nsacral paraspinals and gastrocs.  Large amplitude \nspontaneous activity in the left ant tib, gastrocs and AIIB.  \nPeroneus longus is spared.   \nConclusions:  1)  S1 radiculopathy with moderate acute axon \nloss.  Correlation with imaging should be of benefit. \n2)  Focal lesion of the left peroneal branch of the peroneal \nnerve in the anterior lower leg, with moderate acute axon loss, \nsignificant sparing is suggestive of a good prognosis for re-\ninnervation via sprouting.   \n \n Dr. Cutler gave the following impression on September 21, 2022:  \n“Crush injury to left lower extremity with left S1 radiculopathy complex \nregional pain syndrome and left foot drop.  Because of the EMG report that \nthis would like to go ahead and get an MRI of her lumbar spine.  I will \ncontinue her on the gabapentin.  I need to get her a brace for her foot drop \nto help with ambulation.  Continue to be off work.”   \n An MRI of the claimant’s lumbar spine was taken on October 3, \n2022: \nHISTORY:  Back pain.  Prior surgery.  Left lower extremity \nradiculopathy.... \nFINDINGS:  Standard lumbar spinal numbering.  Prior \nposterior decompression and interbody fusion at L4/L5 and \nL5/S1 along with posterior fusion construct in place from L4-\nS1.  Vertebral body heights are well-maintained.  No osseous \n\nLAWRENCE - H204710  10\n  \n \n \nmass or marrow edema.  Grade 1 degenerative retrolisthesis \nat L3/L4.  No significant scoliosis.   \nNo paraspinous fluid collection or inflammatory changes.  \nPostoperative denervation muscle atrophy evident.  Normal \nappearance of the visualized distal spinal cord.  The conus \nmedullaris terminates at L1/L2.  No thickening or dumping of \nthe cauda equina.  No epidural fluid collection.   \nT11/T12 M-L2/L3:  Normal. \nL3/L4:  Grade 1 degenerative retrolisthesis.  Mild disk height \nloss and disk bulging.  Mild facet hypertrophy with slight facet \nwidening.  No narrowing.   \nL4/L5:  Prior laminectomy and interbody/posterior fusion.  No \nnarrowing.  No scar tissue evident on this noncontrast study.   \nL5/S1:  Prior laminectomy and interbody/posterior fusion.  \nThere is some nonspecific intermediate signal material within \nthe left lateral recess contacting the traversing S1 nerve root.  \nNo canal or foraminal stenosis. \nIMPRESSION:  1.  Intermediate intermediate intensity signal \nmaterial within the left lateral recess at L5/S1 contacting and \npossibly encasing the traversing left S1 nerve root.  Unable to \nexclude scar tissue given the prior surgery.  Correlate with \nany left S1 radicular symptoms.   \n2.  Prior decompression and interbody/posterior fusions at \nL4/L5 and at L5/S1.  Mild adjacent segment disease at L3/L4 \nwith grade 1 retrolisthesis and mild bulging of the disk.  No \nnarrowing at L3/L4.   \n \n Dr. Cutler gave the following impression on October 4, 2022:  “Status \npost being run over by a garbage truck with severe left lower extremity \nradiculopathy and peripheral nerve issues.  Left foot drop from peripheral \nnerve as well as a large lateral L5-S1 herniation.  At this time because of \nthe continued foot drop need to get her back into her spine surgeon Dr. \nSegura Little Rock for evaluation for possibility of a selective nerve root \ninjection versus surgical intervention.”   \n Dr. Saer reported on October 25, 2022: \n\nLAWRENCE - H204710  11\n  \n \n \nMs. Lawrence is now 44 years old.  I have seen and treated \nher in the past.  She had TLIF at L5-S1 in 2007 and then at \nL4-5 in November 2016.   \nShe is back today with back and left lower extremity pain, \nespecially in her knee and ankle, that occurred on June 16, \n2022.  She got out over the passenger side of a truck driven \nby a coworker.  She was checking clearance when someone \ncame up behind the truck and honked.  Her coworker [moved] \nthe truck forward, knocking her down.  She says the truck \nactually ran over her.  She [was] on her side and her left lower \nextremity went between the rear dual wheels.   \nShe was taken to the ER and evaluated.  No fractures were \nfound but she says she had bruised kidneys.  She developed \nsignificant back pain which persists.  This is present when she \nsits or stands and gets better when she lies down.  She says it \nfeels like “something is moving” in her back.  She also reports \npain in the lateral hip area and burning down the left lower \nextremity as well as a feeling of weakness.  She [has] been \ngoing to physical therapy for her hip and leg....She is seeing \nDr. Cutler for her knee and ankle pain.   \nExam:  She is a well-developed woman who walks on a \nwalker.  She holds her left lower extremity with hip and knee \nslightly flexed and the left foot inverted and plantarflex.   \nHer back is not really tender to palpation.  Motion is limited in \nall directions.   \nLower extremities had no distal edema, intact pulses.   \nReflexes are diminished but equal at knees and ankles with \nno clonus.  Motor testing reveals weakness in all groups on \nthe left lower extremity.  She has no active dorsiflexion or \nplantarflexion of the left foot, trace inversion and eversion.  In \nfact she has trace quads and hamstrings, which does not \nexactly match up with her walking, because she is holding \nboth hip and knee slightly flexed.  SLR is negative.   \nX-rays:  Standing AP lateral lumbar films today show \ninstrumentation L4-S1 with interbody fusion at both levels.  \nFusion appears solid.  Other levels are relatively \nunremarkable although she has some very early degenerative \nchanges at L3-4 anteriorly.   \nMRI lumbar spine done October 3, 2022 shows slight \nretrolisthesis and very mild stenosis at L3-4, with mild \ndesiccation of the disc there.  Otherwise it is fairly \nunremarkable.   \n\nLAWRENCE - H204710  12\n  \n \n \nAssessment:  She does not have a definite bony injury in her \nlumbar spine and there is no definite nerve root compression.  \nShe certainly could have an injury to the peroneal nerve or a \nneuropraxia even the lumbar plexus.  I do not see anything in \nher spine now that looks like she needs any further treatment.  \nContinuing therapy is probably her best bet. \n \n Dr. Saer’s assessment on October 25, 2022 was “1.  Low back pain” \nand “2.  Body mass index 30+ - obesity.”   \n Dr. Cutler reported on November 9, 2022: \nThis is a 44 year old female who is being seen for a chief \ncomplaint of left lower extremity.  Work comp – left lower \nextremity radiculopathy and foot drop post referral. \nAlice comes in today continuing to make progress in her lower \nextremity and the motion and pain.  But still very frustrated as \nshe cannot sit comfortably because of left hip and low back \npain.  She still has a foot drop on the left.  States that she \nwent to previous spine surgeon in Little Rock where she was \nextremely disappointed with.  States that she did not feel \nlistened to at all.  States that he asked the same question 8 \ntimes about her having an EMG where she is already had 1.... \nImpression/Plan:  Status post to run over by a garbage truck \nwhich is caused severe left lower extremity radiculopathy and \nfoot drop.  EMG and MRI of the lumbar spine are consistent \nwith new herniations from this injury.  Do recommend having \nsecond opinion performed as she did not feel like she got any \nadditional treatments from this spine evaluation.  Continue \nwith physical therapy and gabapentin.  Unfortunately off work \nstill.  Follow-up in 4 weeks.   \n \n Dr. Cutler performed an injection into the claimant’s left SI joint on \nNovember 9, 2022.   \n Dr. Rodrigo Cayme performed electrodiagnostic testing on \nDecember 15, 2022 and gave the following impression: \n  1.  Abnormal electrodiagnostic study. \n\nLAWRENCE - H204710  13\n  \n \n \n2.  There is electrodiagnostic evidence suggestive of a mild \nnonlocalizable peroneal neuropathy with no focal slowing \nseen at the fibular head and no active denervation in any \nperoneal innervated muscles tested.  In addition, there were \ninconsistencies seen between functional and volitional activity \nthroughout the study as pt seen doing activities such as \nambulating, able to get on exam table on own accord, rotate \non table, extend and flex legs, but volitional activity was \nminimally seen.   \n3.  There is no electrodiagnostic evidence of any other focal \nnerve entrapment, generalized peripheral neuropathy, or left \nlumbar radiculopathy. \n4.  Of note, EMG is not a completely sensitive study, and does \nnot evaluate small sensory pain fibers.  Thus, lack of active \ndenervation on today’s study does not exclude an active \nradiculopathy.  Clinical correlation is needed to determine the \nsignificance of today’s electrodiagnostic examination findings.   \n \n Dr. Saer reported on December 15, 2022: \nMs. Lawrence returns today in follow-up after an EMG/NCV of \nthe left lower extremity.  She continues to complain of pain \nmedially and laterally in the left knee, as well as some pain \nthat comes out of the back and goes into the groin.  Sitting \ncauses pain down the left lower extremity posteriorly.   \nShe has been going to physical therapy.  She says not much \nis really changed since she was here.   \nShe still walks with a walker with the left knee and hip slightly \nflexed and the foot inverted, dragging her toes a little bit.   \nEMG/NCV study done earlier today was reviewed.  I spoke \nwith [the] APRN.  There is no slowing of the peroneal nerve at \nthe fibular head and no active denervation in any of the \nperoneal muscles.  The tester also noted some \ninconsistencies in patient’s actual movement spontaneously \nand when observed.   \nI reassured her that this did not show anything that she \nneeded surgery for.  I think this will improve with time.  She \nneeds to continue working on this on her own also.  I will see \nher as needed.   \n \n\nLAWRENCE - H204710  14\n  \n \n \n The claimant continued to follow up with Dr. Cutler, who noted on \nDecember 28, 2022 that the claimant wished to be referred to another spine \nsurgeon.   \nDr. Cutler reported on February 6, 2023: \nThis is a 45 year old female who is being seen for a chief \ncomplaint of left lower extremity.  Patient is following up for left \nlower extremity radiculopathy from work injury on 6/16/22. \nContinues to complain of pain and weakness in her left lower \nextremity.  States she is still unable to pick up her foot.  Did \nfinally get the brace for her left lower extremity but it does not \nhelp her foot dorsiflexion secondary to the foot drop but it \ndoes help keep it from rolling.  She states that she can tell a \ndifference if she misses a dose of her gabapentin.   \nExam:  Comes in today using a walker and her left ankle \narthrosis.  Is ambulating much better than she has been \nthrough still has a foot drop.  Straight leg raise on the left is \nless positive than it was.  Still has 2 out of 5 strength for \ndorsiflexion of her foot.  Her hip and knee range of motion is \nmuch improved.  Passive motion of her ankle is nearly normal.   \nImpression/Plan:  Status post crush injury to left lower \nextremity.  Her refill on gabapentin.  Continue physical therapy \nas she continues to make improvements.  We will have her \nfollow-up in 3 months to see how progress is.  Hopefully by \nthen she has been able to get into pain management and a \nsecond opinion on her back.   \n \n Dr. Cutler assigned Work Restrictions on February 6, 2023.  Dr. \nCutler instructed, “No driving, alternate sitting and standing if she can.”  If \nno alternative work was available, then the claimant was to remain off work \nuntil May 8, 2023.  Dr. Cutler also signed a form on or about February 6, \n2023 indicating, “Pain management for left LE pain.”     \n\nLAWRENCE - H204710  15\n  \n \n \nThe parties stipulated that the respondents paid temporary total \ndisability benefits through March 2, 2023, and that no temporary total \ndisability had been paid since that time. \n Dr. Cutler gave the following impression on March 22, 2023: \nLow back pain with severe left lower extremity radiculopathy \nsecondary to being crushed by a garbage truck almost a year \nago now.  This time watching the patient ambulate and get \naround.  I do not think she is doing well with this.  She has \nmade great progress with pain control with physical therapy \nand recommend continuing that to help with the pain.  I would \nalso recommend a C brace to her left lower extremity to assist \nwith [her] function and ability to be more independent with \nsimple ambulation.  I would also recommend [an] independent \nspine evaluation as I still think that many of these problems \nare coming from her lumbar spine or even lumbar plexus.  \nRecommend pain management to see if she is a candidate for \na spinal stimulator or if any injections would be of help with \nher pain.   \n \n Dr. Cutler planned on May 10, 2023, “Discussed with patient how I \nam still advocating for her to get a brace for her left lower extremity to help \nher ambulate.  Continue with therapy to help stimulate.  Vascular referral \nher again for pain management to assist her to see if there is anything far \n(sic) and plan wise to help her left lower extremity.”  Dr. Cutler continued to \nkeep the claimant off work.   \n A pre-hearing order was filed on August 3, 2023.  According to the \npre-hearing order, the claimant contended, “She suffered a compensable \ninjury to her left lower extremity, low back, and other body parts after she \nwas run over by a garbage truck at work.  The low back was and is, at the \n\nLAWRENCE - H204710  16\n  \n \n \nvery least, an aggravation of a preexisting condition, and is, therefore, \nrespondents’ continued responsibility, for medical care purposes, payment \nof indemnity benefits, and for any and all other benefits related thereto and \nallowed by the Act.  The workers’ compensation doctor is Justin Cutler, \nD.O., a Harrison orthopedic surgeon.  While respondents continue to pay \nfor Dr. Cutler’s medical care, they have denied at least two of his treatment \nrecommendations, namely a C-brace for claimant’s leg and a referral to \npain management for left lower extremity pain.  This constitutes reasonable, \nnecessary, and related medical care, and respondents should be required \nto provide it.  Claimant continues to treat with Dr. Cutler at respondent’s \nexpense; she remains in a healing period and in an ‘off work’ capacity \nsecondary to her various injuries; at least one of her injuries is scheduled; \nand she has not returned to work.  She is, therefore, entitled to an award of \nadditional temporary total disability benefits from the date last paid \n(approximately May 10, 2023) through a date to be determined.  Claimant’s \ncounsel is entitled to payment of a statutory attorney’s fee on all \ncontroverted indemnity benefits.  Claimant respectfully reserves the right to \namend and/or otherwise alter the above contention as discovery \nprogresses.  All other potential issues are expressly reserved for litigation at \na later date including, but not necessarily limited to, anatomical impairment, \npermanent total disability, wage-loss disability, vocational rehabilitation, \n\nLAWRENCE - H204710  17\n  \n \n \nSection 11-9-505(a) benefits, and any other additional benefit allowed by \nlaw.  This is a claim for additional compensation, and claimant renews her \nrequest for an award of any and all benefit to which she may be entitled, \nunder the Arkansas Workers’ Compensation Act.” \n The respondents contended, “The claimant’s left lower extremity was \naccepted, and all appropriate benefits have been paid.  The claimant’s back \ncondition is preexisting and there is no objective evidence to support a \ncompensable injury to the lower back.  The treatment suggested by Dr. \nCutler is for the back and symptoms related to the back.  The claimant’s \nperiod of disability, if there is one, is related to her back which is not \ncompensable.”   \n The parties agreed to litigate the following issues: \n  1.  Compensability, regarding claimant’s back injury. \n2.  If compensable, whether claimant is entitled to additional \nmedical treatment. \n3.  Whether claimant is entitled to temporary total disability \nbenefits.   \n  4.  Compensation rate. \n5.  Attorney’s fees.  All other issues are reserved by the \nparties. \n \n The claimant followed up with Dr. Cutler on August 16, 2023: \nThis is a 45 year old female who is being seen for a chief \ncomplaint of left leg.  Patient is here severe left lower \nextremity radiculopathy. \nPatient comes in with continued minimal use of her left lower \nextremity.  Complains of inability to drive to take herself to and \nfrom doctors appointments or physical therapy appointments.  \nPatient has not been able to work and so her husband has \n\nLAWRENCE - H204710  18\n  \n \n \nhad to pick up additional jobs including long haul truck driving \nto pay their bills.  Patient states that she is following (sic) a \nmultitude of times and shows evidence of her walker having \nmultiple did not send it from her falls (sic).  Continues to \ncomplain of inability to be able to sit upright secondary to the \nsevere low back pain and hip pain that it causes.  Has to stay \nin a semirecumbent position.   \nExam:  Patient is clean and well-groomed today.  Her skin is \nintact without rash lesion or open wounds.  She ambulates \nwith a walker with her left foot completely abducting and \nunderneath of her walking on the dorsal aspect of it.  She has \nto swing her leg through.  On exam she has good passive \nmotion of her hip elbow and ankle....Today I took a needle \npuncture into her legs throughout.  Nearly the entire leg a \nseparate small area of the anterior thigh is without sensation.  \nPatient reacted extremely well to the contralateral leg and 2 \nareas above the hip line to be improved.   \nImpression/Plan:  Patient is status post being run over by a \ndump truck with a complete loss of function of the left lower \nextremity.  [Has] been reported from Worker’s Comp that she \nhad a previous low back injury with a nerve root impingement.  \nThis is nothing like that type of injury.  This is a completely \nadditional ordeal.  Patient has no functional use of her left \nlower extremity.  Patient requires of substantial on the amount \nof assistance and cannot drive or even ambulate without \nsignificant help.  Patient would greatly benefit from a C brace \nto help control her hip knee and ankle motions.  This would \nallow her to have more independence with activities of daily \nliving.  Even where patient did have a documented previous \nback injury from many years ago.  This is an injury that has \nmore than aggravated those problems.  In reality this is a \ncompletely new injury causing severe nerve function \ndysfunction to her entire left lower extremity.     \n \n Dr. Cutler signed a form on August 16, 2023 indicating that the \nclaimant was to remain off work until November 16, 2023.   \nOn or about September 28, 2023, the respondents filed a MOTION \nFOR INDEPENDENT MEDICAL EXAM....Respondents ask that the \n\nLAWRENCE - H204710  19\n  \n \n \nclaimant be ordered to attend an appointment with Dr. Robert Martin \npursuant to A.C.A. §11-9-511 and A.C.A. §11-9-811.”   \n A hearing was held on October 26, 2023.  At that time, the parties \nstipulated that an accident occurred on June 16, 2022 and that the \nrespondents accepted a left leg injury.  An administrative law judge took \nunder advisement the respondents’ motion for an independent medical \nexamination. \n The claimant’s testimony indicated that the respondent-carrier \ncontinued to pay for treatment provided by Dr. Cutler.  The claimant \ntestified, however, that the respondents had terminated her employment.           \n Dr. Chelsea S. Mathews provided a report on January 25, 2024: \n“46-year-old female presents today for IME secondary to \nspasticity and poor motor control of left lower extremity.  She \nhas a history of lumbar spine surgery by Dr. Saer in \nNovember of 2015.  At some time surrounding the procedure \nshe had radiculopathy and footdrop which improved.  This \nseems to have again worsened after the crush injury in June \nof 2022.  She has been seen by Dr. Cutler who has performed \na very thorough workup including multiple EMG used to \nevaluate her peroneal nerve.     \nShe has pain with standing and difficulty using the left lower \nextremity secondary to spasm and equina varus positioning of \nthe foot and ankle.  She has very limited motor control and \nambulates with a walker.”   \nShe is here today for follow-up of MR neurography on the left \nlower extremity.... \n“Inspection:  Examination of the left lower extremity \ndemonstrates some atrophy of the subcutaneous fat on the \nmedial aspect of the calf.  There is no evidence of this \nlaterally.  When resting she maintains the foot and \nequinovarus position.  There does appear to be some spasm \n\nLAWRENCE - H204710  20\n  \n \n \nof the tibialis anterior.  I made a full to passively reduce to \nneutral.  She exhibits no voluntary motor function in eversion \nor dorsiflexion....When standing her foot naturally [rests] on \nthe lateral aspect of the mid and forefoot.  When ambulating \nthis foot drags.  The tibialis anterior tendon does appear to be \nfiring when performing this.  She is able to passively correct \nthe foot it begins to drag underneath her again.  Regards to \nmore proximal exam she is able to perform quad extension 2+ \nout of 5.”   \nI have reviewed the following images/outside documentation: \n1.  MR enterography of the left lower extremity demonstrates \nno evidence of nerve damage around the knee or fibular head \nthat would explain changes in this area after her crush injury.   \n \nAssessment \n46-year-old female with history of prior insult to lumbar spine \nand nerves resulting in footdrop which reportedly improved \nand has again worsened since her crush injury.   \n \nPlan \nWe had a long discussion today regarding her MR \nenterography results.  There is no radiographic evidence of \ndamage to the nerve at the area of her leg crush injury.  She \ndoes report to me today that the vehicle ran over her leg as \nhigh as her thigh which was unclear to me prior to today’s \nvisit.  None the less I do not see any evidence of peroneal \nnerve damage or compartment damage in the leg to explain \nher foot contracture and spasticity.  This may be explained by \na double hit phenomenon to the nerve more proximally.  This \nis outside the realm of my expertise as a foot ankle orthopedic \nsurgeon.  If she would like a more clear answer she may seek \nindependent examination by someone who specializes in \nspine and hip pathology.   \nBased upon her clinical examination I do not feel that she is \ncapable of caring (sic) out prior work duties including working \na truck.  She would be unable to ambulate any long distance \nover 10 ft.  She will be unable to climb ladders, stairs, squat or \ncarry any weighted objects.   \n \n An administrative law judge filed an opinion on June 20, 2024.  The \nadministrative law judge found, among other things, that the claimant \n\nLAWRENCE - H204710  21\n  \n \n \nproved she sustained a compensable injury to her left leg and back on June \n16, 2022.  The administrative law judge found that the claimant was entitled \nto temporary total disability benefits beginning March 3, 2023 until a date to \nbe determined.  The administrative law judge ordered the respondents to \npay benefits in accordance with the findings of fact.  The respondents \nappeal to the Full Commission. \nII.  ADJUDICATION \n A.  Compensability \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence [.]   \n \n A compensable injury must be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \n\nLAWRENCE - H204710  22\n  \n \n \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n It is the duty of the Full Commission to enter findings in accordance \nwith the preponderance of the evidence and not on whether there is \nsubstantial evidence to support an administrative law judge’s findings.  \nRoberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  The \nFull Commission reviews an administrative law judge’s opinion de novo, \nand it is the duty of the Full Commission to conduct its own fact-finding \nindependent of that done by an administrative law judge.  Crawford v. Pace \nIndus., 55 Ark. App. 60, 929 S.W.2d 727 (1996).  The Full Commission \nenters its own findings in accordance with the preponderance of evidence.  \nTyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).     \n An administrative law judge found in the present matter, “2.  \nClaimant has met her burden of proving that she suffered a compensable \ninjury to her left leg and back on June 16, 2022.”  The Full Commission \nfinds that the claimant did not prove by a preponderance of the evidence \nthat she sustained a compensable back injury.  The evidence demonstrates \nthat the claimant began suffering from chronic low back pain no later than \n2007.  Dr. Saer performed surgery in 2007 and noted in January 2008, “her \nleft toe drags.”  Dr. Saer reported in February 2008 that the claimant “will \nstill drag her toe when she walks on the treadmill.”  An APRN reported in \n\nLAWRENCE - H204710  23\n  \n \n \nDecember 2016 that the claimant “was walking up steps and could not pick \nup her left foot.  It caught and she fell into the wall.”   \n The claimant testified that she became employed with the \nrespondents, Searcy County, on November 29, 2021.  The parties \nstipulated that the employment relationship existed on June 16, 2022.  The \nclaimant testified that, while performing employment services, she was hit \nand knocked down by a moving truck.  The claimant testified, “It went up on \nmy left foot....The wheels stopped on my lower back[.]...I had tire tread on \nmy back where he stopped.”  In workers’ compensation cases, the \nCommission functions as the trier of fact.  Blevins v. Safeway Stores, 25 \nArk. App. 297, 757 S.W.2d 569 (1988).  The Commission is not required to \nbelieve the testimony of the claimant or any other witness but may accept \nand translate into findings of fact only those portions of the testimony it \ndeems worthy of belief.  Farmers Co-op v. Biles, 77 Ark. App. 1, 69 S.W.3d \n899 (2002).  An administrative law judge’s credibility determination is not \nbinding on the Full Commission.  Roberts, supra.       \n In the present matter, the Full Commission does not find credible the \nclaimant’s testimony that there was “tire tread” on her back following the \nJune 16, 2022 accidental injury.  The medical evidence did not corroborate \nthe claimant’s testimony in that regard.  As we have discussed, the claimant \nreceived emergency medical treatment on June 16, 2022, at which time she \n\nLAWRENCE - H204710  24\n  \n \n \ncomplained of “left thigh and knee pain.  Patient denies any other \nassociated symptoms.”  There was no indication that the claimant had \nsustained a back injury.  An x-ray of the claimant’s pelvis on June 16, 2022 \ndid not indicate that the claimant had sustained a back injury.  The claimant \nwas discharged on June 16, 2022 with the diagnoses “Crush Injury of the \nFoot” and “Knee Sprain, Adult.”   \n The Full Commission recognizes Dr. Abiseid’s notation on June 20, \n2022 that the claimant was complaining of low back pain.  However, the \nevidence does not demonstrate that Dr. Abiseid’s assessment of \n“intervertebral disc disorders” was causally related to the June 16, 2022 \naccidental injury.  An MR of the claimant’s lumbar spine on July 7, 2022 \nshowed “mild spinal stenosis L3-4” but there is no indication that this \ndegenerative condition was causally related to the accidental injury.  Dr. \nSaer reported on October 25, 2022, “MRI lumbar spine done October 3, \n2022 shows slight retrolisthesis and very mild stenosis at L3-4, with mild \ndesiccation of the disc there.  Assessment:  She does not have a definite \nbony injury in her lumbar spine and there is no definite nerve root \ncompression [emphasis supplied].”  Yet Dr. Cutler opined in part on \nNovember 9, 2022, “EMG and MRI of the lumbar spine are consistent with \nnew herniations from this injury.”   \n\nLAWRENCE - H204710  25\n  \n \n \n The Commission has the duty of weighing medical evidence and, if \nthe evidence is conflicting, its resolution is a question of fact for the \nCommission.  Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 \nS.W.2d 695 (1999).  It is within the Commission’s province to weigh all of \nthe medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present \nmatter, the Full Commission finds that Dr. Saer’s opinion is credible and is \nentitled to more evidentiary weight than Dr. Cutler’s opinion.  The medical \nevidence corroborates Dr. Saer’s expert opinion, “She does not have a \ndefinite bony injury in her lumbar spine[.]”   \n The Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that she sustained a “compensable injury” \nto her low back or lumbar spine.  The claimant did not prove that she \nsustained an accidental injury causing internal or external physical harm to \nthe low back or lumbar spine.  The claimant did not prove she sustained an \ninjury to her low back or lumbar spine which arose out of and in the course \nof employment, required medical services, or resulted in disability.  The \nclaimant did not prove she sustained an injury to her low back or lumbar \nspine as the result of a specific incident identifiable by time and place of \noccurrence on June 16, 2022 or any other date.  Additionally, the claimant \ndid not establish a compensable injury to her low back or lumbar spine by \n\nLAWRENCE - H204710  26\n  \n \n \nmedical evidence supported by objective findings.  Nor did the claimant \nproved that she sustained a compensable aggravation of a pre-existing \ncondition.  See Farmland Ins. Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d \n883 (1996).  The dragging or “foot drop” of the claimant’s left lower \nextremity, which was first noted in January 2008, cannot be interpreted as \nobjective medical evidence establishing a compensable injury to the \nclaimant’s back or lumbar spine.     \n B.  Medical Treatment \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  What \nconstitutes reasonably necessary medical treatment is a question of fact for \nthe Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 \nS.W.2d 70 (1984).        \n An administrative law judge found in the present matter, “3.  \nRespondent is liable for payment of all reasonable and necessary medical \ntreatment provided in connection with claimant’s compensable injuries.”  \nThe claimant did not prove she sustained a compensable injury to her low \n\nLAWRENCE - H204710  27\n  \n \n \nback or lumbar spine.  However, the respondents agreed that the claimant \nsustained a compensable injury to her left lower extremity as a result of the \naccidental injury occurring June 16, 2022.  The Full Commission finds that \nthe claimant proved the medical treatment of record provided in connection \nwith her left lower extremity injury on and after June 16, 2022 was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  An emergency physician noted on June 16, 2022 that \nthe claimant’s “left leg was run over....Patient complains of left thigh and \nknee pain.”  The claimant was diagnosed with “Crush Injury of the Foot” and \n“Knee Sprain, Adult.”  Dr. Abiseid reported “multiple bruises on the left side \nof her leg and thigh” on June 20, 2022.  The claimant began treating with \nDr. Cutler on July 19, 2022.   \n Dr. Cutler’s recommendation on February 6, 2023 was “Pain \nmanagement for left LE pain.”  The Full Commission finds that pain \nmanagement for the claimant’s left lower extremity, as recommended by Dr. \nCutler, was reasonably necessary in accordance with Ark. Code Ann. §11-\n9-508(a)(Repl. 2012).  Dr. Cutler stated on March 22, 2023, “I would also \nrecommend a C brace to her left lower extremity to assist with [her] function \nand ability to be more independent with simple ambulation.”  Dr. Cutler \nreiterated on May 10, 2023, “Discussed with patient how I am still \nadvocating for her to get a brace for her left lower extremity to help her \n\nLAWRENCE - H204710  28\n  \n \n \nambulate.”  The Full Commission finds that the claimant proved the \nprescription for a “C brace,” as recommended by Dr. Cutler, was reasonably \nnecessary in connection with the compensable injury to the claimant’s left \nlower extremity.   \n C.  Temporary Disability \n Finally, for scheduled injuries the injured employee is to receive \ncompensation for temporary total disability during the healing period or until \nthe employee returns to work, whichever occurs first.  Ark. Code Ann. §11-\n9-521(a)(Repl. 2012); Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, \n41 S.W.3d 822 (2001).  The healing period is that period for healing of the \ninjury which continues until the employee is as far restored as the \npermanent character of the injury will permit.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  If the underlying condition causing \nthe disability has become more stable and if nothing further in the way of \ntreatment will improve that condition, the healing period has ended.  Id.  \nWhether an employee’s healing period has ended is a question of fact for \nthe Commission.  Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 \nS.W.2d 25 (1995).   \n An administrative law judge found in the present matter, “4.  \nClaimant is entitled to temporary total disability benefits beginning March 3, \n2023 until a date to be determined.”  The Full Commission finds that the \n\nLAWRENCE - H204710  29\n  \n \n \nclaimant proved she was entitled to additional temporary total disability \nbenefits beginning March 3, 2023 and continuing through January 25, 2024.  \nAs we have discussed at length, the claimant proved by a preponderance of \nthe evidence that she sustained a compensable injury to her left lower \nextremity on June 16, 2022.  The claimant’s compensable injury was \nscheduled in accordance with Ark. Code Ann. §11-9-521(a)(Repl. 2012).  \nThe claimant testified that she did not return to work following the \ncompensable scheduled injury.  The claimant treated conservatively with \nseveral physicians including Dr. Abiseid, Dr. Cutler, and Dr. Saer.  Dr. \nCutler assigned Work Restrictions on February 6, 2023 and stated, “No \ndriving, alternate sitting and standing if she can.”  If no alternative work was \navailable, then the claimant was to remain off work until May 8, 2023.   \n The parties stipulated that the respondents paid temporary total \ndisability benefits through March 2, 2023.  Dr. Mathews examined the \nclaimant on January 25, 2024 and reported, “1.  MR enterography of the left \nlower extremity demonstrates no evidence of nerve damage around the \nknee or fibular head that would explain changes in this area after her crush \ninjury....There is no radiographic evidence of damage to the nerve at the \narea of her leg crush injury....I do not see any evidence of peroneal nerve \ndamage or compartment damage in the leg to explain her foot contracture \nand spasticity.”   \n\nLAWRENCE - H204710  30\n  \n \n \n Based on the evidence of record to include Dr. Mathews’ report, the \nFull Commission finds that the claimant reached the end of the healing \nperiod no later than January 25, 2024.  The evidence demonstrates that the \nunderlying condition causing the claimant’s disability had become more \nstable no later than January 25, 2024, and nothing further in the way of \ntreatment would improve the underlying condition related to the crush injury \nsustained by the claimant on June 16, 2022.  See Nix, supra.  The record \nshows that, by January 25, 2024, the claimant was as far restored as the \npermanent character of the injury would permit.  Milligan v. West Tree \nServ., 57 Ark. App. 14, 946 S.W.2d 697 (1997).  Temporary total disability \nbenefits cannot be awarded after the healing period has ended.  Id.  We \nrecognize Dr. Mathew’s assignment of work restrictions, including “She will \nbe unable to climb ladders, stairs, squat or carry any weighted objects.”  \nNevertheless, the Full Commission finds that the work restrictions assigned \nby Dr. Mathews can be classified as permanent and do not alter our finding \nthat the claimant has reached the end of the healing period for the crush \ninjury she sustained on June 16, 2022.   \n The Full Commission’s finding that the claimant has reached the end \nof her healing period is not inconsistent with our award of pain management \nand a “C brace.”  It is well-settled that a claimant may be entitled to ongoing \nmedical treatment after the healing period has ended, if the medical \n\nLAWRENCE - H204710  31\n  \n \n \ntreatment is geared toward management of the claimant’s injury.  Patchell \nv. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004).  We find \nin the present matter that additional pain management and a “C brace” are \ngeared toward management of the claimant’s compensable injury.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that she \nsustained a compensable back injury.  We find that the claimant proved the \nmedical treatment of record provided in connection with her compensable \nleft leg injury, including pain management and a “C brace,” was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe Full Commission finds that the claimant proved she was entitled to \nadditional temporary total disability benefits from March 3, 2023 through \nJanuary 25, 2024.  The claimant did not continue within a healing period for \nher compensable scheduled injury after January 25, 2024.  The claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. §11-9-715(a)(Repl. 2012).  For prevailing in part on appeal, the \nclaimant’s attorney is entitled to an additional fee of five hundred dollars \n($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \n  \n \n \n\nLAWRENCE - H204710  32\n  \n \n \nIT IS SO ORDERED.  \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":52860,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204710 ALICE E. LAWRENCE, EMPLOYEE CLAIMANT SEARCY COUNTY JUDGE, EMPLOYER RESPONDENT AAC RISK MANAGEMENT SERVICES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 31, 2024","outcome":"granted","outcomeKeywords":["granted:5","denied:1"],"injuryKeywords":["back","lumbar","strain","sprain","knee","hip","fracture","ankle"],"fetchedAt":"2026-05-19T22:29:44.903Z"},{"id":"alj-H307026-2024-10-31","awccNumber":"H307026","decisionDate":"2024-10-31","decisionYear":2024,"opinionType":"alj","claimantName":"Jerome Braswell","employerName":"Devil Dog Management, LLC","title":"BRASWELL VS. DEVIL DOG MANAGEMENT, LLC AWCC# H307026 October 31, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRASWELL_JEROME_H307026_20241031.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRASWELL_JEROME_H307026_20241031.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H307026 \n \n \nJEROME BRASWELL, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nDEVIL DOG MANAGEMENT, LLC, d/b/a \nG1 STAFFING, EMPLOYER                                                                                 RESPONDENT                                                                                              \n \nTECHNOLGY INSURANCE CO./AM TRUST NORTH AMERICA, \nINSURANCE CARRIER/TPA                                                                               RESPONDENT  \n                                                                                        \n          \nOPINION FILED OCTOBER 31, 2024   \n \nA hearing was held before Administrative Law Judge Chandra L. Black, in Pulaski County, Little \nRock, Arkansas. \n \nThe Claimant, pro se, did not appear at the hearing.        \n \nRespondents represented by the Honorable William C. Frye, Attorney at Law, North Little Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A  hearing  was  held  on October 30,  2024 ,  in  the  present  matter  pursuant  to Dillard  v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), to determine whether \nthe above-referenced matter should be dismissed for failure to prosecute under the provisions of \nArk. Code Ann. §11-9-702 (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule \n099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken at the dismissal hearing. \nThe  record  consists  of  the  transcript  of the October 30,  2024, dismissal hearing  and  the \ndocuments held therein.  Specifically, Commission’s Exhibit 1 includes thirteen (13) total pages \n\nBraswell-H307026 \n \n2 \n \nof  correspondence,  pleadings  and  various  other  forms related  to  this  claim, along  with  tracking \ninformation from the United States Postal Service; and Respondents’ Exhibit 1 consisting of two \n(2) pages, which includes the twenty day-letter, and the Form AR-C. \n                                                                 Procedural History \n On October 26, 2023, the Claimant’s former attorney filed with the Commission a claim \nfor Arkansas workers’ compensation benefits on behalf of the Claimant via a Form AR-C.  Per \nthis document, the Claimant alleged that he sustained injuries to his left hip and other whole body \nduring the course and in the scope of his employment with the respondent-employer, August 24, \n2023.   According  to  this  document,  the  Claimant  asserted  his  entitlement  to  both  initial  and \nadditional workers’ compensation benefits.   \n  The respondent-insurance-carrier filed a Form AR-2, with the Commission on November \n8,  2023, wherein  they accepted this  as  a compensable “medical-only” claim.   However,  the \nRespondents stated on this form that they did not have any documentation to support any loss of \ntime.   \nFollowing the filing of the Form AR-C on October 26, 2023, there was no action taken on \nthe part of the Claimant to prosecute this claim by way of a bona fide request for a hearing on the \nmerits.  \nHowever, on April 8, 2024, the Claimant’s attorney filed with the Commission a motion to \nwithdraw from representing the Claimant in this matter.  There being no objection to the motion \nfor the Claimant’s attorney to withdraw as counsel of record, the Full Commission entered an \nOrder on May 3, 2024, granting the motion to withdraw.      \nStill, there was no action on the part of the Claimant to prosecute this claim by way of a \nbona fide request for a hearing, nor did he take any other affirmative action to pursue this claim.  \n\nBraswell-H307026 \n \n3 \n \nAs a result, the Respondents filed a letter-motion to dismiss this claim with the Commission \non  or  about September  3,  2024.    The  Respondents mailed the  Claimant  a  certified  copy  of  the \ndismissal letter. \n The  Commission  sent  a letter to  the Claimant on September  3, 2024, informing the \nClaimant of the Respondents’ motion,  and  a  deadline of twenty  (20)  days, for  filing  a  written \nresponse.  Said letter was mailed to the Claimant by both first-class and certified mail.  Tracking \ninformation received by  the Commission from the United States Postal Service shows that they \ndelivered this parcel of mail to the Claimant on September 5, 2024.  Moreover, the letter sent by \nfirst-class mail has not been returned to the Commission.   \nThere was not any type of reply or response from the Claimant.  \n Therefore,  on September  24,  2024,  the  Commission notified the  parties via  a  Notice  of \nHearing that this claim had been set for a hearing on the Respondents’ motion to dismiss.  Said \nhearing was scheduled for October 30, 2024, at 9:00 a.m. in Little Rock at the Arkansas Workers’ \nCompensation Commission. \nSaid  letter  was  mailed  to  the  Claimant  by  both  first-class  and  certified  mail.   The \ninformation received from the Postal Service shows that they were unable to deliver the hearing \nnotice to the Claimant.  Hence, the notice was returned to the Commission with an inscription on \nthe outside of the envelope indicating that they were unable to deliver this parcel of mail to the \nClaimant.   Nevertheless,  the notice letter  sent  by  first-class  mail  has  not  been  returned  to  the \nCommission.  Hence, the evidence preponderates that the Claimant received proper notice of the \ndismissal hearing.  \nAccordingly, the dismissal hearing was held as scheduled.  The Claimant did not appear at \nthe hearing, but the Respondents appeared through their attorney.  Counsel for the Respondents \n\nBraswell-H307026 \n \n4 \n \nbasically argued that  the Claimant  has  failed  to  prosecute  his claim for workers’ compensation \nbenefits, as no request for a hearing has ever been made.  He further noted that the Claimant has \nnot taken any action to prosecute his claim in over more than six (6) months.  More specifically, \ncounsel noted that the Claimant has not taken any action to advance his claim since the filing of \nthe Form AR-C, which was done one year ago.   \nTherefore, the Respondents’ attorney moved that this claim be dismissed pursuant to Ark. \nCode Ann. §11-9-702, and/or Commission Rule 099.13, without prejudice.  \nAdjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable  in  the \nRespondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n\nBraswell-H307026 \n \n5 \n \n            The Respondents accepted this claim as compensable and have paid some benefits to and \non behalf of the Claimant for his accidental work-related injury of August 24, 2023.  Hence, this \nis a claim for additional benefits.  \nWith that in mind, my review of the evidence shows that the Claimant has had ample time \nto  pursue  his claim  for additional workers’ compensation benefits, but  he has  failed  to  do  so.  \nSpecifically, the Claimant has not requested a hearing or otherwise made any effort to prosecute \nhis claim for workers’ compensation benefits since the filing of the Form AR-C, more than one \nyear ago; and nor has he resisted the motion for dismissal or even responded to the notices of this \nCommission.  Hence,  the  evidence  preponderates  that  the  Claimant  has  failed  to  prosecute or \notherwise pursue this claim for additional workers’ compensation benefits.  Moreover, considering \nthat  the  Claimant did  not respond  to  the  notices  of  this  Commission  and  did  not  appear  at  the \ndismissal hearing to oppose the motion, I am convinced that the Claimant has abandoned his claim.          \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant to Ark. Code \nAnn.§11-9-702 (d), and Commission Rule 099.13, this claim for additional workers’ compensation \nbenefits should  be  dismissed without  prejudice to  the  refiling of  it within  the limitation  period \nspecified under the Arkansas Workers’ Compensation Act (the “Act”). \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBecause  of the  record  as  a  whole,  I hereby  make  the  following  findings  of facts and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n\nBraswell-H307026 \n \n6 \n \n3. The Claimant has not requested a hearing since his former attorney filed the \nForm AR-C, which was done more than one year ago.  Hence, the evidence \npreponderates  that  the  Claimant  has  failed  to  prosecute  his claim  for \nworkers’ compensation benefits based upon the relevant provisions of the \nspecified  statute,  Ark.  Code  Ann. §11-9-702(d),  and  Rule  099.13  of  this \nCommission.       \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim due to a lack of prosecution \nis  hereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \n                                               ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for additional workers’ compensation benefits.  This dismissal is pursuant \nto Ark. Code Ann. §11-9-702(d), and Commission Rule 099.13, without prejudice to the refiling  \nof this claim within the limitation period specified under the Act. \n           IT IS SO ORDERED. \n \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":11536,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H307026 JEROME BRASWELL, EMPLOYEE CLAIMANT DEVIL DOG MANAGEMENT, LLC, d/b/a G1 STAFFING, EMPLOYER RESPONDENT TECHNOLGY INSURANCE CO./AM TRUST NORTH AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 31, 2024 A hearing was held before Administr...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":["hip"],"fetchedAt":"2026-05-19T22:48:21.313Z"},{"id":"alj-H105195-2024-10-31","awccNumber":"H105195","decisionDate":"2024-10-31","decisionYear":2024,"opinionType":"alj","claimantName":"Taylor Bruning","employerName":"City Of Decatur","title":"BRUNING VS. CITY OF DECATUR AWCC# H105195 October 31, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRUNING_TAYLOR_H105195_20241031.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRUNING_TAYLOR_H105195_20241031.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H105195 \nTAYLOR C. BRUNING, EMPLOYEE CLAIMANT \n \nCITY OF DECATUR, EMPLOYER RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, CARRIER RESPONDENT \n \n \n \n OPINION FILED OCTOBER 31, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by JASON M. HATFIELD, Attorney, Springdale, Arkansas. \n \nRespondents represented by MARY K. EDWARDS, Attorney, North Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 8, 2024, the above captioned claim came on for a hearing at Springdale, Arkansas. \nA pre-hearing conference was conducted on March 14, 2024, and a pre-hearing order was filed on \nthat same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.   The employee/employer/carrier relationship existed on June 23, 2021. \n            3.   Claimant sustained a compensable injury on June 23, 2021. \n            4.   The compensation rates are $440.00 for temporary total disability, and $330.00 for  \n       permanent partial disability. \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \n\nBruning-H105195 \n2 \n \nwere limited to the following: \n           1.   Whether claimant is entitled to the impairment rating assessed on November 8, 2023, by \n                 Dr. Steven Cherney. \n           2.   Whether claimant is entitled to permanent and total disability. \n           3.   Whether claimant is entitled to wage loss disability. \n           4.   Whether claimant is entitled to benefits under Ark. Code Ann. §11-9-505. \n           5.   Attorney’s fees.  \n All other issues are reserved by the parties. \n The claimant contends that “He sustained a compensable injury while working for respondent \non or about June 23, 2021. At that time, claimant was in the course and scope of his employment with \nrespondent when he was involved in a motor vehicle accident and sustained injuries to his left hip, \nleft lower extremity, left ankle, left foot, right lower extremity, left and right upper extremities, facial \nlacerations,  and  stomach  lacerations.  Claimant  was  first  airlifted  to  Joplin,  Missouri  for  medical \ntreatment and then transferred to Springfield, Missouri for further medical treatment. Claimant had \ncompound fractures in his left lower extremity and had to have multiple surgeries, including skin grafts \nfor  his  injuries.  Claimant  stayed  in  the  hospital  for  several months  and  was released  for  outpatient \ncare.  On  August  16,  2023,  claimant  underwent  a  functional  capacity  evaluation.  On  November  8, \n2023, Dr. Steven Cherney issued impairment ratings for claimant’s left thigh and knee, for a combined \nimpairment  rating  of 40% to claimant’s lower extremity and 16% whole-body  impairment.  Dr. \nCherney also considered claimant’s gait derangement and issued a 15% whole-body impairment, for a \ncombined 29% impairment rating to the whole body. Respondents dispute that claimant is entitled to \na  whole-body  impairment  rating  and  have controverted  claimant’s  right to  wage  loss  disability \nbenefits.” \n\nBruning-H105195 \n3 \n \n The respondents contend that “Claimant is not entitled to a whole-person impairment rating. \nClaimant received an impairment rating from Dr. Steven Cherney for his left lower leg on November \n8, 2023. See Exhibit “A.” Respondents had the rating reviewed by Rick Byrd of Functional Testing \nCenters. Rick Byrd authored a report on the rating using the Guides and Dr. Cherney’s measurements \nconcluding that claimant was entitled to 16% to the left lower extremity. See Exhibit “B.” Respondents \ncontend  that  Dr.  Cherney’s rating was not assigned correctly pursuant to the Guides.  Specifically, \nclaimant  is  not  entitled  to  a  whole-person  impairment  rating  for  his  left  lower  extremity.  This  is  a \nscheduled injury, and scheduled injuries do not allow for wage-loss disability. Respondents reserve the \nright to file an Amended Response to the Prehearing Questionnaire or other appropriate pleading and \nto allege any further affirmative defense(s) that might be available upon further discovery.” \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on March \n14, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2. Claimant has proven by a preponderance of the evidence that he is permanently and totally \ndisabled. \n 3. Claimant has proven by a preponderance of the evidence that he is entitled to a controverted \nattorney’s fee under Ark. Code Ann. § 11-9-715 on the permanent and total disability benefits awarded \nherein. \n \n\nBruning-H105195 \n4 \n \n \n FACTUAL BACKGROUND \n Prior to the hearing of this matter on the merits, claimant filed a motion to exclude the results \nof a functional capacity evaluation (FCE) that was conducted by Mr. Rick Byrd of Functional Testing \nCenters. His motion was based on §11-9-705(d), which provides:  \nExpert testimony shall not be allowed unless it satisfies the requirements of \nFederal  Rule  of  Evidence  702  with  annotations  and  amendments,  that  is, \nDaubert v. Merrell-Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumbo Tire \nCo. v. Carmichael, 526 U.S.137 (1999). \n \n Claimant alleged several reasons why Mr. Byrd should not be permitted to testify as an expert \nwitness  in  this  matter,  including  but  not  limited  to, his  lack  of  educational  credentials  and  state \ncertifications, his methodology of conducting the FCE in this case, his bias in favor of the entity that \nretains him, and his improper use of another person’s medical provider number in billing for his work.  \n In response to the motion to exclude, respondents denied Mr. Byrd was being offered as an \nexpert  in  this  matter and  confirmed  that the  FCE  report  was  neither testimony nor a  document \nprepared under oath. Respondents urged that since Mr. Byrd conducted FCEs as a regular part of his \nbusiness and that his work had previously been accepted by the Workers’ Compensation Commission, \nI should err on the side of admitting the evidence opposed by claimant. \nI denied claimant’s challenge to the introduction of the evidence because §11-9-705(d) applies \nonly to expert testimony, and respondents conceded that Mr. Byrd was not to be considered an expert \nin this matter.\n1\n   \nPrior to taking testimony at the hearing, we first took up claimant’s objection to the portion \n \n1\n In his post-trial brief, claimant urged me to reconsider this ruling, asserting that §11-9-705(d) applies not to specific \nwitnesses, but rather “opinions from witnesses which were offered to provide expert scientific or technical information \nto the triers of fact,” and that the Daubert rule is intended to “exclude unreliable expert testimony...”  (Claimant’s \nTrial Brief, page 6). I decline to revisit that decision for two reasons. First, the parties submitted simultaneous briefs, \nand respondent did not know that motion was going to be raised again. Second, expert testimony can only be provided \nby an expert, and I did not rely on Mr. Byrd’s testimony or report as anything other than that of a lay witness.  \n\nBruning-H105195 \n5 \n \n \nof the medical records exhibit offered by respondents that included the aforementioned FCE (R.X. \n67-84  and  87-88).  This objection  had  three  parts:  (1) that  it  was  irrelevant  because  respondent \nconceded it was not the report of an expert, (2) that it was hearsay and (3) that it was more prejudicial \nthan  probative,  citing  Arkansas  Rules  of  Evidence  403  as  persuasive  authority. I  overruled  the \nobjections, because (1) the FCE report involved the injuries that were the subject of this litigation and \nthus was relevant to whatever extent it was worth as a lay opinion, (2) Mr. Byrd had been deposed and \nany matters in his report that involved hearsay could have been explored at that time and (3) while \nRule 403 can be applied to non-jury trials, an administrative law judge is competent and comfortable \nin evaluating these tests and giving such the appropriate weight in reaching its decisions.  \nHEARING TESTIMONY \n \n Claimant’s first witness was his wife, Emily Bruning. She testified that they had been married \nfor  six  years  and  had  four  children. They  had  known  each  other  since  high  school, and  she  said \nclaimant had a dream to be a detective.  To that end, he worked as a reserve officer in the City of \nDecatur  before  becoming  a  police  officer. Claimant  said  she  was  employed  as  a  CNA  and  in  that \ncapacity, she and claimant’s mother provided home health care for claimant after his accident.  She \nsaid claimant was in a coma for nine days after the accident and was bedridden for two years.  He \nsometimes uses a wheelchair now and always uses a cane. Claimant has not driven a vehicle since the \naccident because he is afraid to do so; just sitting behind the wheel of the car caused him to throw up \nand have a panic attack. She testified that her husband has trouble getting in a vehicle and cannot do \nso without taking medication for nausea.  \n Mrs.  Bruning  testified  that  claimant  takes  Tramadol  for  his  pain. He  cuts  them  in  half  and \ntakes three half pills, morning, noon, and night. If he engages in any activity outside of his home, he \nrequires the fourth half pill for that day. Claimant attended two or three tee-ball games for one of his \n\nBruning-H105195 \n6 \n \n \nchildren but on a normal day, he sits with his leg elevated for the majority of the day.  \n Mrs. Bruning said that claimant’s medication makes him “dizzy, foggy, tired.”  He is not to \noperate machinery or drive while taking the Tramadol. Even elevated, claimant’s foot swells to two or \nthree  times  its  normal  size.   Attending a  ball  game  or  going to a doctor’s visit causes it to be even \nworse.  \nMrs. Bruning discussed the photographs that were introduced to show claimant’s injury, some \nof which she took and others she was present when they were taken. These photographs demonstrate \nthe extent of claimant’s surgeries, which included having screws in his hip as well as a rod that goes \ninto his thigh. There are also photographs of the screws that were placed in claimant’s knee.  (Cl. X. \n#3). Additionally, she took photographs of x-rays of claimant’s foot.  \n Mrs. Bruning said that claimant had worked with a vocational expert to apply for jobs.  She \nhelps him focus and remember certain dates. As of the date of the hearing, the vocational expert had \nworked with claimant for a few months, but he has found no employment. Were he to find a job, Mrs. \nBruning said someone would have to provide transportation for him and that he would have to be \nable to sit or lie down every thirty to forty-five minutes. The City of Decatur did not make him an \noffer to do any kind of work for the police department.  \n Mrs. Bruning said that claimant has difficulty sleeping, because if his knees or ankles happen \nto touch while sleeping, it is very painful for him.  Most nights, he cannot sleep through the night, and  \ngoes either to his recliner or to a hospital bed they have in their home.  \n Mrs. Bruning was present with claimant during the functional capacity evaluation. She did not \nremember Mr. Byrd typing anything while claimant was being examined. She said her husband did not \nwalk around the room in multiple repetitions, and did not use both hands when he lifted because he \nhad a cane in his right hand, thus disputing portions of Mr. Byrd’s report. \n\nBruning-H105195 \n7 \n \n \n On cross-examination, Mrs. Bruning says that the injury to husband has been very hard on \nher, because she is bearing the bulk of the financial load. She agreed things would be easier for her if \nclaimant was able to work.  She did not believe her husband could return to being a police officer. \nMrs. Bruning was aware that nothing in the medical records said that claimant could not drive. She \nwas unaware that Dr. Roman encouraged claimant to ease back into driving.   \n Claimant  next  called  his  mother,  Malissa  Brown,  to  testify. She  stated  that  she  has  to \ncoordinate with Emily Bruning’s schedule to help get the children to school. Emily works one job \nwith twelve-hour shifts three days a week and then a second job for twelve hours for another three \ndays during the week. Ms. Brown said she takes the children to ball practice. She observed her son in \na vehicle and noticed that he is nauseous when he does so.  \n On cross-examination, Ms. Brown testified that before the accident, she did help take care of \nthe children but not nearly as often as she does now. She believes that if Emily were only working one \njob that she would not have to take care of the children as often. \n Claimant  then  testified  on  his  own  behalf. Claimant  related  the  steps  he  took  to  become  a \npolice  officer,  including  working  as  an  unpaid  reserve officer and  working  part-time  until  he  was \ncertified to be an officer. On his last day of field training, he was going on a call to assist Gravette with \na warrant when he was in an automobile collision. His description of the accident was as follows: \n“I was still in my driver's seat. My seatbelt had ripped all of my stuff off my \nexternal vest, including my tourniquet. And when I looked over to the driver's \nside door, I saw ~ well, actually, technically, I reached over and I felt a third \nand I was thinking to myself that's not a door handle, and I looked over and it \nwas  my  boot  and  my  leg  was - it  looked  like  I  was  kneeling  the  opposite \ndirection backwards by my head, and I couldn't see out the window because \nthere was blood. I didn't hit my head hard, but the glass had cut my face and \nmy forehead a lot. And then my elbow, my belly, and my right leg were also \ncut open and bleeding. I just remember thinking to myself I'm about to bleed \nout because there was so much blood just profusely leaking out of my body at \nthat point.” (TR.82) \n \n\nBruning-H105195 \n8 \n \n \nClaimant was airlifted to Freeman Health hospital in Joplin, Missouri for emergency treatment \nbefore  being  transferred  to Cox  Health in Springfield,  Missouri. He  was  hospitalized  for about  six \nweeks. \nClaimant wore shorts to the hearing so his leg would be visible, but also because wearing long \npants  causes  his  leg  pain. Since  it  was  stipulated  that  he  had  an  injury,  the  extreme nature  of  the \naccident was relevant to his reluctance to drive or even ride in a vehicle. At this time, he can be in the \npilot seat in the middle of the car and is working his way to ride in the passenger front seat, but he \nstill has difficulties getting in the car and if he does not have to do it, he probably will not.  \n Claimant said that he begins the day with a constant dull, throbbing pain and then as the day \ngoes  on,  it  becomes  more  of a  searing  issue. As  his  foot  swells,  it  becomes almost unbearable. He \ntakes  Tramadol  for  the  pain  three  or  four  times  a  day,  the  fourth  being  necessary  if  he  engages  in \nfamily activities or does anything where he is not able to elevate his leg much. He said he leaves the \nhouse once or twice a week at the most and must use his cane whenever he walks. Claimant testified \nthat if he were working, he would need to elevate his left leg easily over half of the day, and perhaps \nas much as six hours. He says that if he is not using the cane, he is in his wheelchair. He estimated \nthat his day was about sixty percent using the cane and forty percent in the wheelchair. \n Claimant said that he struggled in applying for jobs without his wife’s assistance, because he \nhas trouble remembering dates and focusing, which makes him upset. Despite his applications, he has \nnot  received  a  single  job  offer  since  the  accident. Each  Wednesday  around one  p.m.,  he  consulted \nwith the vocational expert and had taken all her recommendations the best he can. He has kept the \nvocational expert informed as to what jobs he has applied for, what qualifications he might need for \na particular job, and how telephone interviews have gone.  \n On  cross-examination,  claimant  admitted  that  he  did  not  believe  that  he  could  be  a  police \n\nBruning-H105195 \n9 \n \n \nofficer  in  his  current  condition. He  testified  that  he  was  a  high-school  graduate  but  did  not  attend \ncollege. His work history before serving as a police officer was mostly retail and food service. He did \nuse computers in some of the jobs but said it was very simple operations. \n Claimant  understands  that  he  had  been cleared  to sedentary  duty and  applied  for  every  job \nthat  the  vocational  expert  had  laid  out  for  him  as  long  as  it had  not been  redacted  by  the  time  he \napplied. He  said  his  computer  skills  were such  that  he  could  use  Google,  look  up  videos,  type  on \nMicrosoft Word and perhaps prepare a PowerPoint.  He agreed he was both capable and willing to be \ntaught new technology, and he was still actively applying for jobs. He did not know that he could work \nat a sedentary job but was willing to try. He wants to help his wife out financially. He was aware that \nhis doctors wanted him to get back to normal, including driving.  \n On redirect examination, claimant said that despite his best efforts, as well as his wife and the \nvocational expert, no employer had been willing to give him a shot at any occupation, be it part-time \nor full-time.   \n Even taking into consideration the natural bias that I would expect a spouse and a parent to \nhave for claimant, I found claimant’s wife and mother to be credible witnesses. Claimant’s testimony \nwas likewise consistent with the medical records; having had the benefit of watching him throughout \nthe  hearing, I  found  nothing  to  suggest  that  he  was  being  deceptive  or  exaggerating  his  physical \ncondition.     \nREVIEW OF THE EXHIBITS \n \n The parties submitted what I estimate to be over 700 pages of exhibits. Some of these were \nprehearing exhibits regarding claimant’s Daubert motion; these were incorporated into the record of \nthis hearing. At the hearing, there were additional documents, the most pertinent of which were the \nmedical records. Rather than try to summarize all of them in this portion of this opinion, I will simply \n\nBruning-H105195 \n10 \n \n \nlist what was submitted and then refer to the portions of these exhibits that I relied upon in making \nmy decision: \n Claimant’s Prehearing #1: Motion  to  Exclude  Testimony  and  Report  of  Rick  Byrd,  which \nincluded  Byrd’s deposition and  a  separate  binder  of  the  exhibits  to  that  deposition (mistakenly \nidentified by the court reporter as a second Claimant’s Exhibit #2) \n \n Claimant’s Prehearing #2: Respondents’ Response to the Motion to Exclude. \n \n Claimant’s Prehearing #3: Claimant’s Reply to Respondent’s Response. \n \n Claimant’s Prehearing #4 Order denying the Motion to Exclude \n \n Claimant’s Hearing Exhibit #1 Claimant’s medical records.  \n \n Claimant’s Hearing Exhibit #2 Claimant’s Prescriptions \n \n Claimant's Hearing Exhibit #3 Claimant’s Photographs \n \n Claimant’s Hearing Exhibit #4 Claimant's Job Search Index \n \n Respondents’ Hearing Exhibit #1 Additional medical records \n \n Respondents' Hearing Exhibit #2 Claimant’s non-medical records, which include a vocational \nanalysis conducted by Melissa Jones Wilkins, the indemnity payment log, and the AMA Guides to the \nEvaluation of Permanent Impairment.  \n \n Additionally, the Commission’s Prehearing Order was made an exhibit to the hearing. I am \nblue backing the post-hearing briefs submitted by the parties. These briefs were quite helpful and very \nmuch appreciated.  \nADJUDICATION \n \n As enumerated above, there are five issues in this matter. However, I do not need to decide \nthe third and fourth issue, as I am convinced the evidence in this matter supports claimant’s position \nthat he is permanently and totally disabled as a result of his compensable injury.  \n The  parties spent considerable time  arguing  whether  the  impairment  rating  of Rick  Byrd \nshould be admitted into evidence, and after I ruled that it was admissible, whether his rating or that \n\nBruning-H105195 \n11 \n \n \nDr. Steven Cherney should be given more weight. Having reviewed both, I find Dr. Cherney’s ratings \nare more credible than that of Mr. Byrd on the 12% to the grade 4 muscle weakness of flexion. Mr. \nByrd rejected that rating as a subjective test. However, there is no requirement that medical testimony \nbe based solely on objective findings, only that the record contains supporting objective findings, Ark. \nDep't. of Corr. v. Washington, 2024 Ark. App. 181, 685 S.W. 3d 347; Singleton v. City of Pine Bluff, 97 Ark. \nApp. 59, 244 S.W. 3d 709 (2006)—of which there are ample. I also agree with Dr. Cherney that a 15% \nimpairment whole person impairment rating due to claimant’s gait derangement is appropriate under \nthe Guides. The more specific methods of establishing impairments do not adequately address all the \nissues with claimant’s left leg, such as the shortened stance phase and the arthritic changes. However, \nI do agree with respondent that the 10% left lower extremity impairment for range of motion is not \nsupported by Table 40, page 78 of the Guides, because claimant did not have less than 110 degrees of \nflexion. Therefore, I find the rating on the left leg to be 29% and for the whole person to be 12%. \nAccording  to  the  Combined  Value  Chart  on  page  322  of  the Guides, I  find  the total whole-body \nimpairment to be 25%.  \n However, it mattered little if I agreed, in whole or in part, with the ratings by Dr. Cherney or \nMr. Byrd. As claimant pointed out in his brief, Mr. Byrd’s observations as a lay witness support the \ntestimony of the witnesses at the hearing. Claimant used a cane during the examination; nothing was \nsaid that indicated that he did not consistently need it. When he was on his feet for a brief period of \ntime, his left foot began to swell, eventually to the point that claimant had to loosen his shoelaces. Mr. \nByrd found claimant put forth a reliable effort on 46 of 46 consistency measures. Nothing in the FCE \nindicates that claimant was malingering or otherwise exaggerating his condition for the purposes of \nthe examination.  \n In  considering  claims  for  permanent  disability  in  excess  of  the  percentage  of  permanent \n\nBruning-H105195 \n12 \n \n \nphysical  impairment,  the  Commission  may consider other  factors  such  as  the  employee’s  age, \neducation,  work  experience,  and  all  other  matters  reasonably  expected  to affect his future  earning \ncapacity. In this case, claimant is a relatively young person—29 years old at the time of the hearing. \nHe completed high school and had no college or vocational training. Taken alone, those factors would \nindicate he could find or be trained for sedentary work. However, everything else mitigates against \nthis  claimant  ever finding meaningful  employment. His prior work  experience was  outlined  in  the \nvocational analysis report prepared by Melissa Jones Wilkins (R. X 1, pages 2-21). None of the jobs \nhe  previously  performed  appear  to  be  within  his  current  physical  limitations,  as  I  am  convinced \nclaimant would need to be able to sit, stand and even lie down at will during the course of the day.  \nHe is taking Tramadol, an opioid pain medication, to cope with the pain in his left foot, which would \nalso affect his ability first travel to work and then to function in any type of employment that would \nrequire him to use any sort of cognition.\n2\n    \n Perhaps the biggest factor in my decision is claimant’s motivation to work, as I believe he is \nhighly motivated.  He is married with four children. Because of his decreased income, claimant’s wife \nis working 72 hours a week. I believe if there were any jobs he could do, he would have already been \nworking to support his family. This accident was almost three and a half years ago; I see nothing in \nthe  record  that  causes  me  to  believe  claimant will recover  sufficiently  to  perform  even limited \nsedentary  work. Thus,  after  considering all the  relevant  wage  loss  factors  in  this  case,  I  find  that \nclaimant has met his burden of proving by a preponderance of the evidence that he is permanently \ntotally disabled as he is unable to earn any meaningful wages in the same employment he previously \nperformed or any other employment. \n \n2\n While there was testimony regarding claimant’s mental state, such as his fear of riding in a car, and mention of \nsituational depression in the medical records, claimant did not pursue a claim for a compensable mental injury in this \nhearing, and as such, that issue is reserved. \n\nBruning-H105195 \n13 \n \n \n Because I have found claimant to be permanently and totally disabled based on the evidence \nbefore  me,  it  is  unnecessary  for  me  to  determine wage  loss  disability  and/or benefits  pursuant  to \nA.C.A.§11-9-505.\n3\n \n  Since Claimant has proven herein his entitlement to permanent and total disability benefits, \nand  because Respondents  have controverted  this matter  above  the  10%  whole  body  impairment  it \naccepted  and  paid,  he  has  shown  that  his  attorney  should  be  awarded  a  controverted  fee at  their \nexpense under Ark. Code Ann. § 11-9-715 on the indemnity benefits awarded herein. \nORDER \n \n Respondents are directed to pay/furnish benefits in accordance with the findings of fact set \nforth above. All accrued sums shall be paid in a lump sum without discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. See Couch v. First State Bank \nof Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s attorney is entitled to a twenty-five percent (25%) attorney’s fee awarded herein, \none-half of which is to be paid by Claimant and one-half to be paid by Respondents in accordance \nwith Ark. Code Ann. § 11-9-715.  \n Respondents are responsible for paying the court reporter her charges for preparation of the \nhearing transcript in the amount of $1,557.00. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE \n \n \n3\n While the latter was listed in the prehearing order as an issue to be decided, the parties subsequently agreed to have \nclaimant seen by a vocational analysis before the hearing. Based on this opinion, any further such efforts would be \nuseless.","textLength":27405,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H105195 TAYLOR C. BRUNING, EMPLOYEE CLAIMANT CITY OF DECATUR, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, CARRIER RESPONDENT OPINION FILED OCTOBER 31, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas....","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["hip","ankle","knee","back"],"fetchedAt":"2026-05-19T22:48:23.402Z"},{"id":"alj-H300512-2024-10-31","awccNumber":"H300512","decisionDate":"2024-10-31","decisionYear":2024,"opinionType":"alj","claimantName":"Willie Jackson","employerName":"Tyson Poultry, Inc","title":"JACKSON VS. TYSON POULTRY, INC. AWCC# H300512 October 31, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Jackson_Willie_H300512_20241031.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jackson_Willie_H300512_20241031.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300512 \n \n \nWILLIE L. JACKSON, EMPLOYEE CLAIMANT \n \nTYSON POULTRY, INC., \n SELF-INSURED EMPLOYER RESPONDENT \n \nTYNET CORP., \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED OCTOBER 31, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on October 31, \n2024, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr. Jeremy  Swearingen,  Attorney  at  Law,  Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on the Motion to Dismiss filed \nby Respondents.  A hearing on the motion was conducted on October 31, 2024, \nin Little Rock, Arkansas.  Claimant, who is pro se, failed to appear.  Respondents \nwere represented at the hearing by Mr. Jeremy Swearingen, Attorney at Law, of \nLittle  Rock,  Arkansas.   Admitted  into  evidence  was  Commission  Exhibit  1  (see \nArk.  Code  Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the \nhearing . . . in a manner which best ascertains the rights of the parties”), forms, \npleadings,  reports,  and  correspondence  related  to  this  claim,  consisting  of 70 \npages. \n\nJACKSON – H300512 \n \n2 \n The evidence reflects that per the First Report of Injury or Illness filed on \nFebruary 2, 2023, Claimant  purportedly suffered multiple injuries to  his  face at \nwork on January 2, 2023, when he tripped and fell, hitting his head on a hopper.  \nAccording  to  the Form  AR-2  that  was filed on February  3,  2023, Respondents \naccepted the claim as a medical-only one. \n On January  25,  2023,  Claimant  filed  a  Form  AR-C,  requesting only \nmedical treatment.  In response thereto on February 1, 2023, Respondents sent \na letter to the Commission, stating that they had accepted Claimant’s nose and \nleft injuries as compensable. \n No  further  action  on the  claim  took  place  until August  14, 2023.   On  that \ndate,  Respondents filed  their  first Motion  to Dismiss.    Therein,  they  argued  that \ndismissal  was  warranted  under Ark.  Code  Ann. § 11-9-702(a)(4)\n1\n (Repl.  2012) \nand AWCC  R.  099.13  because Claimant “has made no bona fide request for a \nhearing  in  over  six  (6)  months  and  has  made  no  indication  of  any  intent  to \nprosecute the claim toward a resolution.”  The file was assigned to me on August \n15,  2023;  and  on  August  16,  2023,  my  office  wrote  Claimant,  requesting  a \nresponse  to  the  motion  within  20  days.    The  letter  was  sent  to  the  address  for \nClaimant that he had placed on his Form AR-C.  He claimed the certified letter on \nAugust  18,  2023;  and the  first-class mailing was  not  returned.    Nonetheless, no \nresponse  to  the  Motion  to  Dismiss  was  forthcoming.   On  September  6,  2023,  a \n \n \n1\nBecause this is an accepted claim, the applicable provision is instead  \n§ 11-9-702(d). \n\nJACKSON – H300512 \n \n3 \nhearing on the motion was scheduled for October 12, 2023, at the Commission in \nLittle  Rock.    The  Notice  of  Hearing  was  sent  to  Claimant  by  certified  and  first-\nclass mail to the same address as before.  Once again, he signed for the certified \nmailing—on September 9, 2023—and the first-class letter was not returned. \n On October  12,  2023,  just  prior  to  the  commencement  of the  hearing, \nClaimant appeared, objected to dismissal, and requested a hearing on his claim.  \nBased on this, Respondents withdrew their motion.  I retained the file and issued \nprehearing  questionnaires  to  the  parties that  same  day.  Claimant filed  his \nresponse  to  the  Preliminary  Notice  on  October  26,  2023,  representing  that  the \namount in dispute was $2,500.00 or less.  Based on this, I had the file transferred \nto the Legal Advisor Division to conduct a mediation.  However, the mediation did \nnot take place because Claimant informed the Legal Advisor Division that he was \nno  longer  sure  that  the  amount  in  dispute  was  at  or  below  the $2,500.00 \nthreshold.   For  that  reason,  on  March  11,  2024,  the  file  was  returned  to  the \nCommission’s general files. \n On  March  8,  2024,  Respondents  filed  their  second  Motion  to  Dismiss.  \nTherein, they contended that despite their efforts to discover from Claimant what \nmedical benefits were at issue in this matter, he had not been forthcoming.  The \nfile was reassigned to me on March 12, 2024; and the next day my office wrote \nClaimant,  asking  that  he  respond  to  the  motion  within  20  days.   In  a  certified \nletter sent to the Commission on March 27, 2024, and received on April 3, 2024, \nClaimant responded, writing: \n\nJACKSON – H300512 \n \n4 \nDear Mrs. Catherine Ferguson, \n \nI Willie Jackson, [am] requesting a hearing. \n \nSincerely, /s/ Willie Jackson \n \n The   second   Motion   to   Dismiss   was   held   in   abeyance,   and   new \nquestionnaires  were  issued  to  the  parties  on  April  3,  2024.    Respondents’ \ncounsel—as  he  has done  in  the  past—reached  out  to  Claimant  by  email, \nrequesting  that  he  contact  him  by  phone.    Claimant  filed  a  timely  prehearing \nquestionnaire  response  on  April  17,  2024;  and  Respondents  followed  suit  on \nApril  30,  2024.  On  May  9,  2024,  a  prehearing  conference  was  scheduled  for \nJune  17,  2024.    However,  Claimant  sent  an  email  on  June  3,  2024,  indicating \nthat  he  wanted  to  obtain  counsel.    Based  on  this,  I  postponed  the  conference \nuntil August 19, 2024. \n The prehearing conference took place as scheduled on August 19, 2024.  \nClaimant  was pro  se.    A  hearing  was  scheduled  for  December  5,  2024,  at  9:30 \na.m.  at  the  Commission  in  Little  Rock  to  litigate  the  following  issue:  “Whether \nClaimant is entitled to additional treatment of his stipulated compensable injury [a \nlaceration about his left eye].” \n On   September   20,   2024,   Respondents   informed   me   by   email   that \nClaimant had not responded to their discovery requests.  I emailed Claimant that \nsame day, utilizing the same email thread, stating: \nMr. Jackson, you are expected to cooperate with Mr. Swearingen in \ngetting him the discovery that he is seeking from you.  If you fail to \ndo  this,  I  fully  expect  him  either  to  ask  me  to  order  you  to  do  this, \n\nJACKSON – H300512 \n \n5 \nand/or to dismiss your claim for your failure to prosecute it.  Please \ncontact my office with any questions. \n \n Respondents  emailed  my  office  on  September  26,  2024,  detailing  their \nfruitless efforts to get Claimant to respond.  Based on this, I informed the parties \nthat I would be scheduling a hearing on the second Motion to Dismiss.  However, \nthe December 5, 2024, hearing was kept on the calendar. \n That   same   day,   Respondents   filed   their   third   Motion   to   Dismiss, \ncontending   that   Claimant   had   not   provided   them   with   responses   to   their \ndiscovery requests  and  had  ignored  communications  from  them.   Also  on \nSeptember 26, 2024, I scheduled a hearing on the motion for October 31, 2024, \nat 9:30 a.m. at the Commission in Little Rock.  As was done previously, Claimant \nwas  sent  this  notice  by  first-class  and  certified  mail.    He  signed  for  the  certified \nmailing on October 2, 2024; and the first-class mailing was not returned. \n The  hearing  on  the third Motion  to Dismiss proceeded  as scheduled on \nOctober  31,  2024.   Again, Claimant failed  to appear.    Respondents  appeared \nthrough counsel and argued for dismissal of the action under the aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  I  hereby  make  the  following \nFindings  of Fact  and Conclusions  of Law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n\nJACKSON – H300512 \n \n6 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All  parties  received  notice  of  the third Motion  to  Dismiss  and  the \nOctober 31, 2024, hearing thereon pursuant to AWCC R. 099.13. \n3. Respondents have proven by a preponderance of the evidence that \nClaimant has failed to prosecute his claim under AWCC R. 099.13. \n4. Respondents’ third Motion  to  Dismiss  should  be,  and  hereby  is, \ngranted. \n5. This claim for  additional  benefits is  hereby  dismissed without \nprejudice. \n6. The   December   5,   2024,   full   hearing   on   this   claim   is  hereby \ncancelled. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  (Emphasis added) \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nclaim–by a  preponderance  of  the evidence.   This  standard  means  the  evidence \n\nJACKSON – H300512 \n \n7 \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable notice of the third Motion to Dismiss and of the hearing thereon; and \n(2) Claimant has failed to pursue his claim because he has repeatedly refused to \nrespond to discovery, despite my explicit instructions for him to do so and despite \nRespondents’ efforts to get him to cooperate.    Moreover,  he  failed  to appear at \nthe  hearing  on October  31,  2024.    Thus,  the  evidence  preponderates  that \ndismissal is warranted under Rule 13.  Because of this finding, the application of \nArk. Code Ann. § 11-9-702 (Repl. 2012) is moot and will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.  Based  on \nthe  foregoing, I concur  and find  that  the  dismissal  of  this  claim  should  be  and \nhereby is entered without prejudice.\n2\n \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nJACKSON – H300512 \n \n8 \n Because  of  the  above  finding,  the  full  hearing  on  this  claim,  currently \nscheduled  for  December  5,  2024,  has  been  rendered  moot  and  is  hereby \ncancelled. \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":11474,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H300512 WILLIE L. JACKSON, EMPLOYEE CLAIMANT TYSON POULTRY, INC., SELF-INSURED EMPLOYER RESPONDENT TYNET CORP., THIRD-PARTY ADM’R RESPONDENT OPINION FILED OCTOBER 31, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on October 31, 2024, in...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:48:25.547Z"},{"id":"alj-H204175-2024-10-30","awccNumber":"H204175","decisionDate":"2024-10-30","decisionYear":2024,"opinionType":"alj","claimantName":"Opal Russell","employerName":"St. Bernards Hospital, Inc","title":"RUSSELL VS. ST. BERNARDS HOSPITAL, INC. AWCC# H204175 October 30, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Russell_Opal_H204175_20241030.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Russell_Opal_H204175_20241030.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204175 \n \nOPAL M. RUSSELL, \nEMPLOYEE                                                                                                              CLAIMANT \n \nST. BERNARDS HOSPITAL, INC., \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nRISK MANAGEMENT RESOURCES, \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED OCTOBER 30, 2024 \n \nHearing conducted on Friday, October 11,  2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Ms. Opal Russell, Pro Se, of Jonesboro, Arkansas, did not appear in person at the \nhearing.  \n \nThe Respondents were represented by the Honorable S. Shane Baker, Jonesboro, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by Respondents.  \nA hearing on the motion was conducted on September 8, 2023, in Jonesboro, Arkansas.  Claimant, \naccording to Commission file is Pro Se, failed to appear at the hearing.  \nThe  Claimant  worked  for  the  Respondent/Employer  as  a  certified  nursing  assistant.  The \ndate  for  Claimant’s  alleged  injury  was  on  February  8,  2022.  She  reported  her  injury  to \nRespondent/Employer  on February 9,  2022. Respondents  admitted  no  exhibits  into  evidence. \nNevertheless,  admitted  into  evidence  was  blue-backed Form  AR-C, Form  AR-1,  Form  AR-2,  a \ncopy of certified return receipt returned to the Commission on August 29, 2024, a copy of certified \nreturn receipt returned to the Commission on August 12, 2024,  the September 8, 2023 Motion to \n\nRUSSELL, AWCC No. H204175 \n \n2 \n \nDismiss  hearing  transcript,  Motion  to  Dismiss  Opinion  dated  September  11,  2023, and  copy  of \nhearing notice, as discussed infra. \nThe record reflects on June 8, 2022, a Form AR-C was filed with the Commission, by then-\nattorney Jim Burton, purporting that Claimant injured her right knee and is seeking benefits. On \nJune 9, 2022, a Form AR-1 was filed with the Commission purporting that Claimant injured herself \nwhen she and two co-workers were attempting to lift a resident from the floor when her right knee \ntwisted  causing  pain. Also  on June 9,  2022,  a  Form  AR-2  was  filed by  Respondents  accepting \ncompensability of the injury. On June 30, 2023, Respondents filed a Motion to Dismiss claiming \na lack of prosecution by the Claimant. A hearing was held on September 8, 2023.  \nThe Claimant, on the date of the hearing, was represented by Attorney Jim Burton and the \nRespondents were represented by Attorney Justin Parkey, who filled in for Attorney Shane Baker. \nClaimant’s attorney stated, on record, that he has not heard from his client regarding this notice \nand hasn’t heard anything about the status of her treatment. But assured the Commission that he \nwill make a diligent effort to locate the Claimant. Claimant’s counsel also admitted that he was \nintending to file a Motion to Withdraw in this matter. I filed an Opinion in this matter on September \n11, 2023, granting Respondent’s Motion to Dismiss. On March 20, 2024, Claimant’s counsel filed \na Motion to Withdraw as Counsel. I granted Claimant’s counsel Motion on March 25, 2024. But \ninstead of foreclosing Claimant’s opportunity to argue her claim, I granted her, in that Opinion, \nthirty-five days to enter her preliminary notice and questionnaires. Otherwise, I would entertain \nanother  Motion  to  Dismiss  from  Respondents.  The  Claimant  has  failed  to  submit  the  required \ndocuments.  \nThe Respondents next filed a Motion to Dismiss on July 15, 2024, requesting this claim be \ndismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. Mail, notice \n\nRUSSELL, AWCC No. H204175 \n \n3 \n \nof the Motion to Dismiss from my office on July 22, 2024, to her last known address. The certified \nmotion notice was unclaimed by Claimant and returned to the Commission on August 12, 2024. \nAlso,  the motion notice was sent  regular  U.S.  Mail and was  not  returned  to  the  Commission. \nClaimant did not respond to the notice in writing as required. Thus, in accordance with applicable \nArkansas law, the Claimant was mailed due and proper legal notice of Respondents’ Motion to \nDismiss hearing date at her current address of record via the United States Postal Service (USPS), \nFirst Class Certified Mail, Return Receipt Requested, and regular First-Class Mail, on August 23, \n2024. The certified notice was claimed August 29, 2024, but the regular First-Class mail hearing \nnotice  was returned on  August  29,  2024.  The  hearing  took  place  on  September  13,  2024.  As \nmentioned before, the Claimant did not show up to the hearing. \n The evidence reflects that Claimant’s injury occurred on February 8, 2022, where she \npurportedly injured her right knee picking up a resident off the floor after having several falls back-\nto-back.  This  incident  allegedly  occurred  during  the  course  and  scope  of  her  employment. \nClaimant  has  not  contacted  her  attorney  with  any  updates  or  statuses  concerning  her  claim. \nClaimant’s attorney expressed  his  desire  to  file  a  motion  for  withdrawal  for  the  lack  of \ncommunication.  Since  filing  the  Form  C  on  June  8,  2022,  this  case  has  been  inactive  until \nRespondents  filed  a  Motion  to  Dismiss  due  to  the  lack  of  prosecution.  A  hearing  was  held  on \nSeptember 8, 2023, in Jonesboro, Arkansas on the Motion to Dismiss. As previously stated, the \nClaimant did not appear for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole and other matters properly before the Commission, \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  \n\nRUSSELL, AWCC No. H204175 \n \n4 \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the October 11, 2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance of the evidence that dismissal should be granted. The standard “preponderance of \nthe evidence” means the evidence having greater weight or convincing force.  Barre v. Hoffman, \n2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission. White  v.  Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \n\nRUSSELL, AWCC No. H204175 \n \n5 \n \nto  believe  the  testimony  of  the  claimant  or  any  other witness  but may  accept  and  translate  into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were given \nreasonable notice for the Motion to Dismiss hearing under Rule 13. I further find that Claimant \nhas abridged this rule. Thus, I find Respondent’s Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and Claimant’s claim is dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":8654,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H204175 OPAL M. RUSSELL, EMPLOYEE CLAIMANT ST. BERNARDS HOSPITAL, INC., SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED OCTOBER 30, 2024 Hearing conducted on Friday, October 11, 2024, before the Arkansas Workers’ Compe...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:4"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T22:48:19.233Z"},{"id":"alj-H303196-2024-10-29","awccNumber":"H303196","decisionDate":"2024-10-29","decisionYear":2024,"opinionType":"alj","claimantName":"Cynthia Barnes","employerName":"Booker T. Washington Elem. Schl","title":"BARNES VS. BOOKER T. WASHINGTON ELEM. SCHL. AWCC# H303196 October 29, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BARNES_CYNTHIA_H303196_20241029.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BARNES_CYNTHIA_H303196_20241029.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303196 \n \nCYNTHIA BARNES, EMPLOYEE     CLAIMANT \nBOOKER T. WASHINGTON ELEM. SCHL., EMPLOYER  RESPONDENT \nARKANAS SCHOOL BOARDS ASSOC., WCT CARRIER/TPA RESPONDENT  \n \nOPINION FILED OCTOBER 29, 2024 \nHearing  before  Administrative  Law  Judge  James  D.  Kennedy  in Little  Rock, \nArkansas on October 22, 2024. \nClaimant is pro se and failed to appear. \nRespondents   are   represented   by their   attorney, Carol   Worley, Little   Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on October 22, 2024, in Little Rock, \nArkansas on respondent’s Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act. \n The claimant was pro se and failed to appear for the hearing. The claimant’s claim \nwas  filed on  May 23, 2023, and she alleged  that she was injured at  work  on  March 8, \n2023.  An AR – 1 Form was received on May 17, 2023, and an AR – 2 Form was received \non  May  17,  2023,  and  no  position  in  regard  to  the  claim  was  stated  in  the  form.  The \nclaimant obtained a Change of Physician Order from the Commission on June 5, 2023. \n  A Motion to Dismiss was filed on August 27, 2024, requesting that the matter be \ndismissed for failure to prosecute.  The claimant has not requested a hearing to date and \nmore than six months have passed since the filing of the original claim nor is there any \n\nBARNES – H303196 \nrecord  of  her  contacting  the  Commission  after  the  date  her  attorney  was  allowed  to \nwithdraw.   \n Appropriate notice was provided to the claimant notifying her that a hearing on the \nMotion to Dismiss was set for October 22, 2024, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nCarol  Worley, appeared  on  behalf  of  the  Respondents and asked  that  the  matter  be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondent, I find that this matter should be dismissed without prejudice, for failure to \nprosecute  pursuant  to  A.C.A.  11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED: \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2703,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303196 CYNTHIA BARNES, EMPLOYEE CLAIMANT BOOKER T. WASHINGTON ELEM. SCHL., EMPLOYER RESPONDENT ARKANAS SCHOOL BOARDS ASSOC., WCT CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 29, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, ...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:48:10.919Z"},{"id":"alj-H108068-2024-10-29","awccNumber":"H108068","decisionDate":"2024-10-29","decisionYear":2024,"opinionType":"alj","claimantName":"Kathaleen Cole","employerName":"Malvern School District","title":"COLE VS. MALVERN SCHOOL DISTRICT AWCC# H108068 October 29, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/COLE_KATHALEEN_H108068_20241029.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COLE_KATHALEEN_H108068_20241029.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        CLAIM NO.: H108068 \n \nKATHALEEN COLE,   \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nMALVERN SCHOOL DISTRICT,  \nEMPLOYER                                                                                                            RESPONDENT  \n \nARKANSAS SCHOOL BOARDS ASSOC., WCT.,              \nINSURANCE CARRIER/TPA                                                                               RESPONDENT \n      \n        \n                                              OPINION FILED OCTOBER 29, 2024    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Hot Springs, Garland County, \nArkansas. \n  \nThe Claimant, pro se, failed to appear at the hearing. \n \nRespondents represented by the Honorable Melissa Wood, Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis matter comes before the Commission pursuant to the Motion to Dismiss for Failure \nto Prosecute filed by the Respondents.  A hearing was conducted on the motion for dismissal of \nthis claim on October 25, 2024, in Hot Springs, Arkansas.  Thus, the sole issue for determination \nis whether this claim should be dismissed due to the Claimant’s failure to timely prosecute it under \nthe  relevant  provisions  of Ark.  Code  Ann.  §11-9-702 (Repl.  2012),  and/or Arkansas Workers’ \nCompensation Commission Rule 099.13. \n The record consists of October 25, 2024, hearing transcript and exhibits.  In that regard, \nCommission’s Exhibit No. 1 includes three actual pages, which has been marked accordingly, \nand Respondents’ Exhibit 1 consisting of fourteen numbered pages was marked as thus so.   \n No testimony was taken at the hearing.  \n\nCole – H108068 \n \n \n2 \n \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by \napplicable law.   \n                            Background \nThe record reflects the following procedural history: \nThe Claimant’s former attorney filed a Form AR-C, with the Commission on November 1, \n2022,  alleging that  the  Claimant  sustained  an  accidental  injury  on September  8,  2021,  while \nworking  for the  Malvern  School  District.  According  to  this document,  the Claimant allegedly \nsustained injuries to her head, left knee, left side, left elbow, left hand, and other whole body while \nworking for the respondent-employer.  The Claimant’s former attorney requested both initial and \nadditional workers’ compensation benefits.    \nThe  Respondents  filed  an  initial Form  AR-2  with  the  Commission.  Subsequently, the \nRespondents filed an amended Form AR-2 filed on or about October 11, 2021, accepting the claim \nas being compensable and paid some medical benefits and temporary total disability compensation \nto and on behalf of the Claimant.    \nThe Claimant’s attorney requested to withdraw from representing the Claimant in this \nmatter.    On December  6,  2022, the Full Commission entered an order allowing the Claimant’s \nattorney  to  withdraw  from  representing  the  Claimant  in this  case for workers’ compensation \nbenefits. \nSince the filing of Form AR-C, the Claimant has failed to pursue her claim for initial and/or \nadditional workers’ compensation benefits.  Hence, the Claimant failed to make a bona fide request \nfor a hearing on the merits in this matter.   \nTherefore, the Respondents filed with the Commission on August 30, 2024, a Motion to \nDismiss for Failure to Prosecute, along with a Certificate of Service to the Claimant.  Of note, on \n\nCole – H108068 \n \n \n3 \n \nthe Respondents’ Hearing Exhibit Index, the motion for dismissal in incorrectly name Motion to \nWithdraw. However, at the beginning of the hearing, the attorney for the Respondents made the \nhandwritten correction on the hearing index for this being a Motion to “Dismiss.”    \nOn September 3, 2024, my office wrote to the Claimant and requested a response to the \nmotion within twenty days.  The letter was sent by first-class and certified mail to the address listed \nby the Claimant with the Commission.   \nA dismissal hearing notice was sent to the parties on September 24, 2024, scheduling the \nhearing for October 25, 2024, at 8:30 a.m. at the Transportation Depot, Hot Springs.   Said notice \nwas sent to Claimant by first-class and certified mail to the same address as before.  The first-class \nletter was not returned.  Thus, the evidence preponderates that the Claimant received proper notice \nof the dismissal hearing.  \nThe hearing was in fact held as scheduled.   The  Claimant did not appear  at the hearing.  \nThe Respondents’ counsel argued that the Claimant has failed to prosecute her claim for workers’ \ncompensation  benefits.  Counsel  further  noted  that  the  Claimant  has  not  taken  any  affirmative \naction to prosecute her claim in more than six (6) months.  More specifically, Respondents’ counsel \nnoted that the Claimant has not taken any action to advance her claim since the filing of the Form \nAR-C, which was done more than two (2) years ago.   \nTherefore, the Respondents’ attorney moved that this claim be dismissed pursuant to Ark. \nCode Ann. §11-9-702, and/or Commission Rule 099.13 with or without prejudice on this claim for \nboth initial and additional workers’ compensation benefits.   \n            Discussion  \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in the  \nRespondents’ request for dismissal of this claim are outlined below:  \n\nCole – H108068 \n \n \n4 \n \nSpecifically, Ark. Code Ann. §11-9-702(a)(4):  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nMoreover, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \nAs the moving party, the Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012) \nmust prove their entitlement to the relief requested—dismissal of this matter—by a preponderance \nof  the  evidence.    This  standard  means  the  evidence  having  greater  weight  or  convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. \n491, 206 S.W.2d 442 (1947).  \n\nCole – H108068 \n \n \n5 \n \n  With  respect  to the  evidence  recounted  above,  (1)  the  parties  were  provided  reasonable \nnotice of the Motion to Dismiss and the hearing on it; and (2) the Claimant has failed to pursue her \nclaim  because  she  has  taken  no  further  action  in  pursuit  of  it  since  the  filing  of  her claim  for  \nbenefits on November 1, 2022.     \nHere, the evidence preponderates that the Claimant has failed to prosecute this claim for \nworkers’ compensation benefits.  Moreover,  I  am  convinced  that  the  Claimant  has abandoned \nconsidering she has taken no action to object to the motion, and she has failed to respond to the \nnotices of this Commission.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion  to dismiss for  a  lack  of  prosecution  to  be  well  taken.  I thus find  that  pursuant  to the \npertinent provisions of Ark. Code Ann.§11-9-702, and Commission Rule 099.13, that this claim \nfor workers’ compensation benefits should be dismissed without prejudice to the refiling within \nthe limitation periods specified under the Arkansas Workers’ Compensation Act (the “Act”). \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704. \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since her former attorney filed the \nForm AR-C, which was done more than two years ago.  Hence, the evidence \npreponderates  that  the  Claimant  has  failed  to  prosecute  her  claim  for \nworkers’  compensation  benefits  based  upon  the  relevant  statutory \nprovisions   of   Ark.   Code   Ann. §11-9-702,   and   Rule   099.13   of   this \nCommission.       \n \n\nCole – H108068 \n \n \n6 \n \n4. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation periods \nspecified by law. \n                                                           ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for workers’ compensation benefits.  This dismissal is per Ark. Code Ann. \n§11-9-702, and Commission Rule 099.13, without prejudice to the refiling of this claim within the \nlimitation periods specified under the Act. \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":11104,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H108068 KATHALEEN COLE, EMPLOYEE CLAIMANT MALVERN SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC., WCT., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 29, 2024 Hearing held before Administrative Law Judge Chandra L. Black, in Ho...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:48:12.989Z"},{"id":"alj-H305841-2024-10-29","awccNumber":"H305841","decisionDate":"2024-10-29","decisionYear":2024,"opinionType":"alj","claimantName":"Patrick Jackson","employerName":"Central Packaging Of Arkansas, Inc.,","title":"JACKSON VS. CENTRAL PACKAGING OF ARKANSAS, INC., AWCC# H305841 October 29, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JACKSON_PATRICK_H305841_20241029.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACKSON_PATRICK_H305841_20241029.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H305841 \nPATRICK M. JACKSON, EMPLOYEE           CLAIMANT \n \nCENTRAL PACKAGING OF ARKANSAS, INC., \nd/b/a/ CENTRAL PACKING, INC., EMPLOYER      RESPONDENT \n \nSTATE AUTO INSURNACE COMPANIES, \nCARRIER/ TPA        RESPONDENT \n \nOPINION FILED OCTOBER 29, 2024 \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy, on  the 18\nTH\n day  of \nSeptember 2024, in Mountain Home, Arkansas. \nClaimant is represented by Mark Alan Peoples, Attorney at Law, Little Rock, Arkansas. \nRespondents are represented by David C. Jones, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A  hearing  was  conducted  on  the 18\nth\n day  of September 2024,  to  determine  the \nissues of compensability for a work-related injury to the claimant’s right shoulder and arm, \nmedical in regard to the injury, temporary total disability from the date of injury to a date \nto be determined less the period from May 6, 2022, through August 29, 2022, and attorney \nfees.  The respondents contend the claim for all benefits should be barred based on the \nShippers defense, contending the  claimant  did  not  disclose  the  extent  of  pre-existing \nconditions and whether he was physically capable of performing the job duties required.  \nThe respondents also contend that the claimed incident did not occur as alleged.  At the \ntime  of  the  hearing, the  parties  stipulated that the  claimant  earned  an  average  weekly \nwage of $713.18 for a TTD/PPD rate of $475.00/$357.00. A copy of the Pre-hearing Order \nwas marked “Commission Exhibit 1” and made part of the record without objection. The \nOrder provided that the parties stipulated that the Arkansas Workers’ Compensation \n\nPatrick M. Jackson – H305841 \nCommission  has  jurisdiction  of  the  within  claim  and  that  an  employer/employee \nrelationship existed on or about March 22, 2022, the date of the claimed injury in question.  \nThe claimant’s and respondent’s contentions were set out in their responses to the Pre-\nhearing Questionnaire and made a part of the record without objection. Four witnesses \ntestified at the time of the hearing.  From a review of the record as a whole, to include \nmedical  reports and  other  matters properly  before  the  Commission and having  had  an \nopportunity to observe the testimony and demeanor of the witness, the following findings \nof fact and conclusions of law are made in accordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. The claimant earned an average weekly wage of $713.18, sufficient for a \nTTD/PPD rate of $475.00/$375.00 \n3. An employer/employee relationship existed on or about March 22, 2022, the date \nof the claimed injury in question. \n4. The claimant has failed to satisfy the required burden of proof to show that he \nsuffered a compensable work-related injury. \n5. That consequently all other issues are moot. \n6. If not already paid, the respondents are ordered to pay for the cost of the \ntranscript forthwith. \n \n \n\nPatrick M. Jackson – H305841 \nREVIEW OF TESTIMONY AND EVIDENCE \nThe initial witness to testify was James Benedict, who also goes by the name of \nJacob. He had worked for Central Packing in shipping or receiving for around 12 years, \nand  was  working  there  back  in  March  of  2022,  the  date  the  claimant  alleges  he  was \ninjured. Mr. Benedict remembered throwing something like a piece of paper at the start \nof the workday, and when the claimant attempted to throw it back stated that his shoulder \nwas hurting. He then explained that “he had injured himself from one of the strap blocks \nthat we used to -- not to – so it prevents the straps from cutting like on a piece of a pallet.  \nYou know the straps go over, like, a stack of pallets?  Well, there’s a corner piece right \nthere that prevents the straps from cutting as you’re going down the highway. So anyways \nhe said that one of those had come down and hit him on the shoulder.” (Tr. 9 – 12) \n Under cross examination, Mr. Benedict, testified that he was “acquaintances” with \nthe  claimant  but  that  he  did  not  really consider  him  a  friend. He  admitted  riding  bikes \ntogether once up to Caulfield where he would purchase cigarettes and went on to state \nthat  the  claimant was all  over  the  road, and  consequently after  that,  they never  road \ntogether. He admitted to rarely hanging out with the claimant outside of work but admitted \nthat they would chat on occasion. He did not remember the claimant stating he needed \nto file a workers’ compensation claim. He also admitted that he later quit the company \nafter harsh words which involved name calling and cussing, with Holt Dye.  (Tr. 13 – 18) \n The  claimant,  Patrick  Jackson, was  then  called. He  stated that he  had  started \nworking for the respondent in 2017 or 2018, and that he was driving a truck and making \ndeliveries, which amounted to a one-day trip over a fairly large geographical area. On the \nday of the claimed injury, he pulled into Manila at Southworth Company and unstrapped \n\nPatrick M. Jackson – H305841 \nthe pallets he was hauling. (Tr. 19, 20) “I rolled up all the straps. I’m standing there by the \nback  door of  the  semi. The  forklift  driver  comes out,  starts  taking them  off, and  then a \nboard come down, and smacked me in the shoulder, and I didn’t think nothing of it. I just \nthought I was bruised, but the next morning I couldn’t move my arm.” He stated he then \ndrove the truck back to the shop and told them the next morning that he was injured. (Tr. \n21) “I just said, I got hurt yesterday at - - at Southworth.” The  claimant stated that  Mr. \nBenedict was in the room when he stated that he had hurt his shoulder. Mr. Benedict then \nleft the room, and he did not talk about it any further with Mr. Holt. He was then handed \npaperwork  for  his  next  trip, and  he  continued  to  work. There  was never  any additional \ndiscussion with Mr. Holt. The claimant stated that he worked about two more weeks and \nwas then laid off because they hired a cheaper driver. No medical care was ever offered. \n(Tr. 22, 23) \n He then went to work for TNI driving a semi, where he worked until May 6\nth\n. He \nstated he had trouble opening and closing doors but that was it. He had an MRI in April, \nthen  another  in  September, before  surgery  in  October  of  2022. He  worked  for  TNI for \napproximately three months. He stated he was let go because of the surgery and that he \nwas unable to lift his arm up to break the doors free. (Tr. 24, 25) He thought he obtained \na release to return to work from Dr. Knox but was told that he wasn’t working for them \nanymore. He also admitted that he had purchased a motorcycle after his injury. He stated \nthat he had only made one trip on his motorcycle, when he went to Caulfield with Jake \nand another gentleman. (Tr. 26) \n\nPatrick M. Jackson – H305841 \n The claimant additionally testified that he had not worked anywhere since he left \nTNI, and that he had not hurt his shoulder anywhere else since March of 2022, when he \nhurt his shoulder on the job working for Central Packing. (Tr. 27, 28) \n Under cross examination, the claimant admitted he had bought a motorcycle after \nthe alleged  shoulder  injury, but  stated  it  was  actually  a  gift  from  his  wife  to  replace  a \nmotorcycle he owned that was stolen. He also added that he was the one that paid for it. \n(Tr. 29) He admitted the claimed injury occurred at Southworth in Manila and he did not \ncall anyone at the respondent when the corner piece up on top of the pallets came off \nand hit him. He testified that he was certain the incident occurred in Manila. He was then \nquestioned about the invoices from Southworth. An invoice dated March 22\nnd\n, provided \nhe dropped off a load in Manila. Another invoice showed an additional load to Manila on \nthe 25\nth\n. (Tr. 30, 31) He again claimed that the corner piece in question was on top of the \npallets and that it came off and hit him. (Tr. 32) The claimant was also questioned about \npage 23 of his deposition where he stated that he bent over to pick up a corner piece from \nthe ground. The following questioning then occurred:   \nQ:  Okay.    So, what  you  told  us  a  minute  ago  is  inconsistent  with  your \n deposition; is that fair to say. \nA:  Okay. No, it’s not. I mean, I did my job. I mean, that’s all there is too it. \nQ:  Well, there’s a factual dispute here. You’re claiming now that you were just \n standing there, and this fell off the truck. Is that what you’re telling us now? \nA:  That’s - - no. I’m telling you I was stand - - well, yeah, I was there when it \n hit me. I mean, I don’t even remember if I was picking up something or what, \n but I did get hit. \nQ:  Okay. But in your deposition, you said you were bent down picking this up? \n A: Yeah. \nQ: Okay. All right. So, it wasn’t a - -  \n\nPatrick M. Jackson – H305841 \nA:  I mean, that’s what I had to do that day. \nQ:  - - so physically we don’t know how it hit you, how you were bent down or \n anything because you’re - - you don’t recall exactly what happened? \nA:  No, I don’t. I mean, that was - - \nQ: Okay. \nA:  - - quite a while back. \nQ:  And it’s this corner  piece  that  goes on  top  of a  small  pine  pallets;  is  that \n correct? \nA:  It’s corner pieces that go on top of the loads, yes - - \nQ:   Okay. \nA.  - - to hold them from the straps breaking the pallets. \nQ:   Correct. Okay. And you’re claiming this forklift driver knocked it off and you \n were right there next to this when this happened; is that correct? \nA:  No, I’m not blaming the forklift driver knocked it off. I’m just telling you that \n it fell off the truck. \nQ:  Okay \n(Tr. 33, 34)  \nThe claimant admitted that he didn’t load the trucks he drove. When he was hired, \nhe was told the trucks would be loaded and strapped for him, due to his prior back surgery, \nbut he would be responsible to unstrap them. (Tr. 35) The claimant was asked about the \ncorner piece not being used on loads to Southworth, and he responded that if anyone stated \nthey  were  not  used, they  would  be  lying. He was  also  questioned  about  the  MRI which \nshowed that his rotator cuff tear was degenerative in nature, and he responded he was not \naware of it. (Tr. 37, 38) He also admitted the truck which he drove back from the accident \nfor the two-hour return trip, was equipped with a manual transmission with a stick shift, and \nthe roads were two lane roads with some inclines and declines. (Tr. 37, 38) The claimant \nalso admitted he did not tell Mr. Holt Dye the next day about the injury. (Tr. 39) The claimant \nwas also questioned about filing a workers’ compensation claim, and he stated that there \n\nPatrick M. Jackson – H305841 \nwas never anything there about reporting the injuries. (Tr. 41) He admitted that he worked \nabout  a  month  after  the  alleged  injury,  continuing  to  drive  the  truck  with  the  manual \ntransmission. (Tr. 42) He also admitted he drove a truck for TNI for 25 to 30 days working \n10  to  11  hours  a  day  driving.  (Tr.  44) He drove from  Loredo  Texas,  up  to  Wisconsin  or \nMichigan. He worked for TMI until he was told that he needed surgery. (Tr. 45) \nThe claimant was then questioned about the statement in his deposition where he \nhad stated  he  never  had shoulder problems. He  was also questioned  about  seeing  Dr. \nChaney, his family physician in May of 2019, where the report provided that the claimant \nstated his shoulders hurt all the time. The claimant responded that he did not remember, \nso he didn’t have to agree in regard to his shoulders hurting three years before the accident. \n(Tr. 47) The claimant admitted that he was taking pain medication back then but contended \nit was due to his back surgery. The claimant was also questioned about telling Dr. Knox \nthat the injury occurred on March 28\nth,\n and he responded “Well, like I said, in March, yes.” \n(Tr. 48)   \nThe claimant was also questioned about seeing Dr. Cheney on March 20 or the 21 \nof 2022  and telling  her  there  was  no  recent  trauma  and  the  claimant responded, “I was \nalways  fine  when  I  went  in  and  seen  Dr.  Chaney.” “I mean dates get mixed up with \neverybody.” (Tr. 50,51)  \nOn  redirect, claimant was questioned about respondent’s medical exhibit, page \none, which provided he suffered from chronic pain, referring to his shoulders. The claimant \nresponded that he was not referring to the right shoulder rotator cuff. He went on to state \nthat he had no problem with his right rotator cuff prior to his on-the-job injury. He also wasn’t \nsure, as to the exact date of his injury. (Tr. 53, 54) \n\nPatrick M. Jackson – H305841 \nThe claimant rested at this point and the respondents called Mr. Justin Anderson, \nwho worked for the respondents roughly between 2016 until 2023, as the respondent’s \nforklift operator, loading and unloading trucks, and strapping loads. He no longer worked \nfor the respondent. (Tr. 55, 56) He stated that when he first met the claimant, they walked \naround the semi, and he was told that that the claimant had pre-existing conditions with his \nback and shoulder. Consequently, he threw the straps for the claimant with the claimant \nbeing the  only  driver that needed this  assistance  due  to  his  shoulder  problems.  Mr. \nAnderson went on to testify that they had different types of pallets and the loads that were \nsent to Southworth were hardwood pallets, and the hardwood pallets did not require the \ncorner  piece  that  goes  on top  of  the  loads  to  keep  the  deck  board  from  breaking. Pine \npallets are a lot easier to break and that is when the top piece on the corner is used to keep \nthem  from  breaking. Looking  at  the  invoice,  there  would  have  been  no  protector  pieces \nsince the pallets going to Southworth were all hardwood pallets that week (Tr. 57 - 59).  \nThe  respondents  then  called  Kelli  Dye,  who  is  part  owner  of  the  respondent \nemployer along with her husband of the respondent employer. She testified that there was \na standard poster on the wall stating how a workers’ compensation claim was to be reported \nand even listed the insurance carrier for a claim. She further testified that she was present \nin the backside of the tiny office when the claimant was interviewed for a part-time driver \nposition  and  the  claimant admitted that  he  was  on  disability with back  and  shoulder \nproblems. Consequently,  he  would  not  be  able  to  strap  his  own  loads. The  loads  were \nstrapped by Mr. Anderson. She did not recall the claimant coming into the office and talking \nto her or Holt regarding an injury. (Tr. 62 - 65) She first heard about the injury when she \nreceived a letter somewhere around September of 23, a year and a half after the date of \n\nPatrick M. Jackson – H305841 \nthe injury. She also stated that the loads going to Southworth, were hardwood and would \nnot have had a corner piece or some type of protector on top. Small pallets that were soft \nwood (pine) were going to Searcy. The claimant made no runs to Searcy during the two-\nweek period in question. (Tr. 66, 67) \nHolt Dye was then called by the respondent. He testified that he was one of the \nowners  of  company  and  was  employed  by  the  respondent. He  denied  that  the  claimant \nevery came into his office and told him that he was hurt or that a corner piece had fallen \nand hit him on the shoulder. (Tr. 69, 70) He went on to testify that they were looking for a \npart time driver when the claimant came in and stated he would like to drive a couple of \ndays a week. He had been driving for years and had a disability. Consequently, he needed \nto  limit  his  income. A  part-time  driver position would be great for him but “he had back \nissues,  shoulder  issues,  he  had pre-issues.” The  claimant  told  him  that  he  would not  be \nable to do any loading or strapping. He did not tell us he had been on social security back \nin the 80’s or 90’s but did tell us that he was on disability. He specifically told us that he had \nshoulder and back problems. Consequently, Mr. Dye stated that was why they had Justin \nout there strapping the claimant’s loads. In regard to the claimed injury, he was never aware \nof an issue until the formal claim was filed with the Commission on September 12, 2023.  \n(Tr. 71 - 73) He went on to testify that an in-house investigation was performed, reviewing \nthe paystubs for the claimant, and they determined that the claim was not feasible. Further \nin  regard to  the  corner  pieces or  protectors, he  stated  that  they  would not  have gone  to \nManila where the claimant claimed that he was injured, due to the fact that hard wood is \nthree quarters inch thick and will bend. Pine is 9/16\nth\n’s inch thick and is brittle. Southworth \ndid not do pine, hardwood only. Protectors weren’t used with the hardwood. The invoices \n\nPatrick M. Jackson – H305841 \nfor the period between the 22\nnd\n and the 25\nth\n, provided that the pine during that period was \ngoing to Searcy to the Danfoss plant. (Tr. 74 - 76) He also testified that he did not receive \na phone call in March of 2022 telling him that a driver was injured. The claimant worked for \nthem until April 20\nth\n of 2022, and he then went to work for someone else. (Tr. 77) \nUnder  cross  examination,  Mr.  Dye  testified  that  he  had  been  in  business since \n2007, had approximately 13 employees, and had two workers’ compensation claims during \nthat  period. He never told an employee that they did not have workers’ compensation \ncoverage.  “The  companies  that  were - - that  hire  us  required  us  to  have  workman’s \ncompensation.” (Tr. 78) \nClaimant’s non-medical  exhibit  consisted of 16 pages and  was  admitted  without \nobjection. The records showed that the claimant was paid $7845 per his 1099 in 2022, and \nthe notes appeared to list the specific trips that the claimant made as well as a picture of \nthe odometer reading of the vehicle.  (Cl. Ex. 1) \nThe  claimant  also  submitted 2022  pages  of  medical  records  that  were  admitted \ninto  the  record  without  objection.  An  MRI  dated  May  19,  2022,  provided  there  were \nprominent  degenerative  changes  in  the  acromioclavicular  joint  with  inferior  spurring  and \nimpingement on the musculotendinous junction of the superior rotator cuff. The report also \nprovided a larger complete superior rotator cuff tear with a retraction medial to the midpoint \nof the humerus which appeared to involve essentially all of the supraspinatus and probably \nsome of the anterior infraspinatus. (Cl. Ex. 2, P. 1) \nThe claimant was seen by Dr. Knox on July 28, 2022, and the report provided that \nthe chief complaint of shoulder pain involving the right shoulder occurred in the context of \n\nPatrick M. Jackson – H305841 \nan injury at work on March 28, 2022. The report referred to an MRI showing a RTC partial \ntear and also referred to a large heavy object falling on his right shoulder while at work. (Cl. \nEx. 2, P. 2,3) \nA second MRI of the right shoulder dated August 31, 2022, provided there was a \npoorly defined sclerotic lesion with a moderately severe osteoarthritic hypertrophy of the \nright AC joint with a hypertrophic AC joint resulting in impingement upon the supraspinatus \nmuscle and tendon below.  A right massive full thickness full width tear of the right rotator \ncuff was also noted. (Cl. Ex. 2, P 4 – 6) A right shoulder arthrogram was also performed on \nAugust  31,  2023.  The  findings  in  regard  to  the  right  humerus  were  consistent  with  a \nprobable  bone  infarct  or  enchondroma. (Cl.  Ex.  2,  P.  7,  8) A  report  dated  September  8, \n2022, stated under impression that there was a right rotator cuff tear and that most tears \narise in the setting of an acute event like falling or lifting a heavy object, or from the chronic \nirritation from overuse or bone spurs. (Cl. Ex. 2, P. 10 - 12) \nA medical report by Dr. Knox for an evaluation on October 20, 2022, provided it \nwas  a  follow  up  for  a  right  rotator  cuff  tear  and  a  complete-right  shoulder  joint  and  right \nshoulder repair, presenting for a post-op check after surgery on October 17. (Cl. Ex. 2, 14 \n– 16) The claimant returned to Dr. Knox and was again evaluated on December 1, 2022, \nin regard to the post-op shoulder rotator cuff repair on the right shoulder. It provided that \nthe claimant was much better, that his strength was recovering, and that he was not having \nmuch pain at all. (Cl. Ex. 2, P. 17 – 19) The claimant returned again on February 14, 2023, \nfor reevaluation of his right shoulder by Dr. Knox, due to a reinjury of the right shoulder. (Cl. \nEx. 2, P. 20 – 22)  \n\nPatrick M. Jackson – H305841 \nThe  respondents  submitted  twenty-six  pages  of  documentary  evidence  without \nobjection. A  Work  Activity  Report  dated  January  1,  2021,  and  other  documentation, \nprovided  that  the  claimant had  earned  $16,  024.00  in  net  income  in  2020,  with  no  net \nincome  in  2019,  and  only  $2280.00  net  income  in  2018. The  report  provided  that the \nclaimant had to start taking fewer jobs because he was hurting too much. (Resp. Ex. 1, P. \n1 – 6)   \nCorrespondence  from  Central  Packaging  of  Arkansas,  Inc., to  Carroll  Fulmer \nLogistics and Transco Lines, Inc. provided that the claimant was a fill-in driver who worked \nas  needed.  (Resp.  1,  P.  7 – 15) An  odometer  disclosure  statement  in  regard  to the \nmotorcycle  purchase  was  dated  September 9,  2022. One  year  later,  an  AR-C  form  was \nfiled on September 9, 2023, claiming an injured shoulder. (Resp. Ex. 1, P. 17, 18) \nA  Witness  Reporting  Form  signed  by  Justin  Anderson,  stated  that  the  incident \nnever happened and when the claimant was hired, he had a bad shoulder. It also provided \nthat the claimant quit and went to work for another company for higher wages and never \nsaid anything about the supposed injury. This document was dated September 19, 2023.  \n(Resp. Ex. 1, P. 20) Additionally, a photo of that showed the procedure to file a workers’ \ncompensation  claim at  the respondent’s location  was  introduced.  (Resp.  Ex.  1,  P.  21) \nFinally, an email from Holt Dye of Central Packaging of Arkansas, concerning deliveries to \nSouthworth in Manila was also entered into the record. (Resp. Ex. 1, P. 22 – 26) \nThe respondents also submitted medical records into the record without objection.  \nA  report  from  Dr.  Lori  Cheney  dated  from  May  10, 2019, through  February  13,  2020, \nprovided that the claimant was taking hydrocodone and acetaminophen for chronic back \npain. (Resp. Ex. 2, P. 1 – 10) The claimant had presented to MedExpress on April 24, 2020, \n\nPatrick M. Jackson – H305841 \nfor a DOT physical. At the time of the exam, the claimant denied taking any medications \nthree times during the exam. An AR PMP revealed patient fills for Hydrocodone. The report \nprovided that the claimant would be required to be off narcotics for at least three months \nwith  a  MD  statement that the  claimant  is medically  safe  to  commercially  drive  a  vehicle. \n(Resp. Ex. 2, P. 11 – 19) \nA report from Dr. Cheney dated November 9, 2020, provided that the claimant was \ncurrently  on  Hydrocodone – acetaminophen.  (Resp.  Ex.  2,  P. 20 – 27) Office notes and \nreports from the Baptist Regional Medical Center family clinic dated April 30, 2021, through \nSeptember 6, 2023, provided for refills of Hydrocodone-Acetaminophen. (Resp. Ex. 2, P. \n28 – 43) A Chart Noted from Twin Lakes Chiropractic dated Dec1, 2023, provided that the \nclaimant suffered from moderate to severe muscle spasms in the left lumbar, lumbar, right \nlumbar,  left  sacroiliac  and  right  sacroiliac.  The  report  also  mentioned  osteoarthritis  and \ninterval disc degeneration of the lumbosacral region.  (Resp. Ex. 2, P. 44 – 46) \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving by a preponderance of the evidence that he is entitled to compensation benefits \nfor the injury to his right shoulder under the Arkansas Workers’ Compensation Law. In \ndetermining  whether  the  claimant has  sustained his burden  of  proof,  the  Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party.  \nArk.  Code  Ann  11-9-704.   Wade  v.  Mr. Cavanaugh’s, 298  Ark.  364,  768  S.W.  2d  521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \n\nPatrick M. Jackson – H305841 \nTo prove a compensable injury, the claimant must establish by a preponderance \nof the evidence: (1) an injury arising out of and in the course of employment; (2) that the \ninjury  caused  internal or  external  harm  to  the  body  which  required  medical  services  or \nresulted in disability or death; (3) medical evidence supported by objective findings, as \ndefined in A.C.A. 11-9-102 (16) establishing the injury and (4) that the injury was caused \nby a specific incident and identifiable by time and place of occurrence.  If the claimant \nfails to establish any of the requirements for establishing the compensability of the claim, \ncompensation must be denied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, \n938 s.W.2d 876 (1997). \nIn the present matter, the claimant contends that he delivered a load of pallets for \nthe  respondent  employer to  Manila  Arkansas, delivering them  to  a  company  called \nSouthworth,  on  March  22,  2022.    The  claimed  injury  occurred  when  the  person  who \nunstrapped the load, tossed the strap and a corner piece on the strap came off and hit \nthe claimant.  The claimant was sure that the injury occurred in Manila but wasn’t sure of \nthe exact date but thought that the injury occurred during the latter part of March in 2022.  \nWitnesses explained that the corner pieces on the straps were not required on hardwood \npallets due to the pallet’s flexibility and strength, but were required for pine or soft wood \npallets, due to the fact the straps would break a soft wood pallet.   \nThe claimant testified that after the incident, he then drove the truck with a manual \ntransmission home, but  never  notified  his  employer that  evening  or the next  day. The \nemployer testified that they were not aware of the injury until about one and a half years \nlater. \n\nPatrick M. Jackson – H305841 \nConvincing testimony provided that no softwood pallets were delivered to Manila \nand the company of Southworth during this time period. The delivered softwood pallets \nwere going to Searcy. This was also confirmed by documentary evidence. \nAdditionally, it was commonly known that the claimant suffered from various health \nissues regarding his back and was unable to toss the straps over the load at the start of \na  trip, and  consequently  was  the only  driver when hired,  required  another  individual  to \nstrap his load. Medical records from Dr. Lori Cheney provided that the claimant was taking \nhydrocodone and acetaminophen as far back as May 10, 2019, for a back injury, and that \nthese  scripts  continued  as  late  as  September  6,  2023. Additionally,  a  DOT  physical \nprovided  that  the  claimant  denied  three  times  that  he  was  taking  any  medications,  but \nthat an AR PMP revealed patient filles for Hydrocodone at the time. Finally, it is noted \nthat an MRI of August 21, 2022, did in fact show a poorly defined sclerotic lesion and a \nmoderately  severe  osteoarthritic  hypertrophy  of  the  right  AC  joint. A report  dated \nSeptember  8, 2022, provided under  impression, that  there  was a  right  rotator  cuff  tear \nand that  most  tears  arose  in the  setting  of  an  acute  event  like  falling  or  lifting  a  heavy \nobject, or from the chronic irritation from overuse or bone spurs. In the present matter, \nalthough no weight was ever provided, the piece that came off the strap could not have \nbeen heavy, or otherwise it could never have been tossed over a load of pallets.    \nBased upon the available evidence, it is found that the claimant has failed to satisfy \nthe first requirement of Mickel, supra, that the injury was work related. It is also found that \nthe claimant has also failed to satisfy the second and third requirements of Mickel, supra.  \nAdditionally, the medical evidence is insufficient to support objective findings which are \nthose findings that cannot come under the voluntary control of the patient. A.C.A. 11-9-\n\nPatrick M. Jackson – H305841 \n102  (16). It is also important to note that the claimant’s testimony is never considered \nuncontroverted. Lambert v. Gerber Products Co. 14 Ark. App. 88, 684 S.W.2d 842 (1985).  \nA workers’ compensation claimant bears the burden of proving the compensable \ninjury by a preponderance of the evidence. A.C.A. 11-9-102 (4) (E) (i). A compensable \ninjury is one that was the result of an accident that arose in the course of his employment \nand  that  it  grew  out  of  or  resulted  from  the  employment. See  Moore  v.  Darling  Store \nFixtures, 22 Ar. App 21, 732 S.W.2d 496 (1987)   \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, there is no alternative but to find that the claimant has failed to satisfy the \nrequired burden  of  proof  to  show  that the claimed right  shoulder injury  is  in  fact  work \nrelated and compensable  under  the  Arkansas  Workers’  Compensation Act.  \nConsequently, all other issues are moot. \nIf not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \n IT IS SO ORDERED. \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":30021,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305841 PATRICK M. JACKSON, EMPLOYEE CLAIMANT CENTRAL PACKAGING OF ARKANSAS, INC., d/b/a/ CENTRAL PACKING, INC., EMPLOYER RESPONDENT STATE AUTO INSURNACE COMPANIES, CARRIER/ TPA RESPONDENT OPINION FILED OCTOBER 29, 2024 Hearing before Administrative Law Jud...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["shoulder","back","rotator cuff","lumbar"],"fetchedAt":"2026-05-19T22:48:15.080Z"},{"id":"alj-H205427-2024-10-29","awccNumber":"H205427","decisionDate":"2024-10-29","decisionYear":2024,"opinionType":"alj","claimantName":"Crystal Jackson-Light","employerName":"Gpm Investments, LLC","title":"JACKSON-LIGHT VS. GPM INVESTMENTS, LLC AWCC# H205427 October 29, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JACKSON-LIGHT_CRYSTAL_H205427_20241029.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACKSON-LIGHT_CRYSTAL_H205427_20241029.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H205427 \n \n \nCRYSTAL JACKSON-LIGHT, \nEMPLOYEE                                                                                                                 CLAIMANT \n                                                                                                           \nGPM INVESTMENTS, LLC,   \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nACE AMERICAN INSURANCE COMPANY, \nINSURANCE CARRIER                                                                                        RESPONDENT \n  \nHELMSMAN MANAGEMENT SERVICES, LLC, \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED OCTOBER 29, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n \nThe Claimant, pro se did not appear.   \n \nThe Respondents represented by the Honorable Rick Behring, Jr., Attorney at Law, Little Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \nA  hearing  was  held  on September  4,  2024, in  the  present  matter  pursuant  to Dillard  v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), to determine whether \nthe above-referenced matter should be dismissed for failure to prosecute under the provisions of \nArk. Code Ann. §11-9-702 (Repl. 2012), and/or Arkansas Workers’ Compensation Commission \nRule 099.13.   \nAppropriate Notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.   \nNo testimony was taken during the dismissal hearing.   \n\nJACKSON-LIGHT – H205427 \n \n2 \n \n The record consists of the transcript of September 4, 2024, hearing and the documents held \ntherein.  In that regard, Commission’s Exhibit No. 1 includes three actual pages, which has been \nmarked accordingly, and Respondents’ Exhibit 1 consisting of twenty-five numbered pages was \nmarked as such.   \n                                                                    Background \nThe Claimant’s  attorney filed with  the Commission a claim for Arkansas workers’ \ncompensation benefits on behalf of the Claimant by way of a Form AR-C, on October 16, 2023.  \nAccording to this document, the Claimant alleged, among other things, that she sustained injuries \nto her whole body during a motor vehicle accident on July 21, 2022, while performing employment \nduties  for  the  respondent-employer.   Per  the  Claim  Information  section  of  this document,  the \nClaimant asserted her entitlement to only initial workers’ compensation benefits.  Also, there is a \nhandwritten note in this section, which reads, “All benefits due under the color of law.”    \nPreviously, on August  8,  2022,  the  respondent-carrier  filed  a  Form  AR-2  with the \nCommission confirming that they  were challenging this claim.  Particularly,  the Respondents’ \nposition for denying the claim included: “Tested positive for methamphetamines at initial hospital \nintake.  The mere presence of alcohol or drugs creates a rebuttable presumption that the accident \nwas substantially occasioned by the use of the drugs or alcohol.”      \nSubsequently, there was no activity on this claim.         \n As a result, on January 5, 2024, the Respondents filed with the Commission a Respondents’ \nMotion to Compel or Dismiss and  Incorporated Brief in Support, which  was accompanied by a \nCertificate of Service.  Per this pleading, the Respondents served a copy of the foregoing pleadings \non the Claimant’s attorney by e-mailing a copy thereof to his law firm.  \n\nJACKSON-LIGHT – H205427 \n \n3 \n \nThe Commission sent a letter notice on January 10, 2024, to the Claimant and her attorney \ninforming them of the Respondents’ motion.  Said letter was mailed to the Claimant by both first-\nclass  and  certified  mail.  Per  this  correspondence, the  Claimant  was  given a  deadline of twenty \ndays for filing a written response to the Respondents’ motion to dismiss.  \nHowever, the United States Postal Service informed the Commission on January 22, 2024, \nthat they were unable to deliver this item to the Claimant.  On the contrary, the letter notice sent \nto the Claimant by first- class mail has not been returned to the Commission.  \nNevertheless, there was no response from the Claimant or her attorney.   \nThe  Commission  sent  a Notice of  Hearing dated February  1,  2024, to the  parties letting \nthem  know  that a dismissal hearing had  been scheduled to address the Respondents’ motion to \ndismiss this claim due to a lack of prosecution.  The notice was sent to the Claimant via certified \nand first-class mail.  Said hearing was scheduled for February 1, 2024, at 10:00 a.m., in El Dorado, \nArkansas. \nOn February 2, 2024, the Claimant’s attorney submitted a Motion to Withdraw from \nrepresenting the Claimant in this matter.   I entered an order on February 12, 2024\n1\n denying the \nClaimant’s attorney’s motion for withdrawal as her counsel in this matter.    \nTracking information received by the Commission from the United States Postal Service \nshows that on February 8, 2024, they returned the hearing notice sent to the Claimant by certified \nmail because  it  was “unclaimed.”  However,  the  notice  sent  by  first-class  mail  has  not  been \nreturned to the Commission.  \nStill,  there was no  response  from  the Claimant  until  March  5,  2024.  At  that  time,  the \nClaimant sent an email to the Commission saying she had planned to attend the hearing but was \n \n1\n There is a clerical error on my order denying the Claimant’s attorney Motion to Withdraw.  The order \nstates it was entered on January 8, 2024.  Instead, the correct date for the order appears to be February 12, 2024.   \n\nJACKSON-LIGHT – H205427 \n \n4 \n \nunable to get transportation from Mississippi to El Dorado.  The Claimant objected to her claim \nbeing dismissed and apologized for not being able to attend the hearing.     \n The following day, on March 6, 2024, a hearing was in fact conducted on the Respondents’ \nmotion for dismissal as scheduled.  As noted above, the Claimant did not appear at the dismissal \nhearing.  However,  the Respondents appeared  through  their  attorney.  The Claimant’s attorney \nalso attended the hearing.   \nCounsel for the Respondents noted that the Claimant has failed to promptly prosecute her \nclaim for workers’ compensation benefits.  The Respondents attorney noted that there has been no \nattempt on the part of the Claimant to move forward with a hearing since the filing of the Form \nAR-C, which was done on October 16, 2023.  Counsel noted, among other things, that this claim \nshould be dismissed, without prejudice, due to all the above reasons.  \nIn the  alternative, the Respondents counsel  asked that the Commission enter an order to \ncompel the Claimant to provide complete discovery responses and executed authorizations within \nan agreed amount of time and sanctions for the cost and expense of having to get her to take part \nin the discovery process.  As previously noted above, the motion to compel was held in abeyance \nat that time. \nDuring this first hearing, the Claimant’s attorney indicated that the Claimant sent an e-mail \nto him on January 25, 2024, saying that she was terminating his services and no longer wanted \nhim to represent her in this workers’ compensation claim.  This e-mail has been made a part of the \nrecord  but has  been  heavily  redacted  due  to  the nature of  the  language. Nevertheless,  the \nClaimant’s attorney forwarded this e-mail to the Commission after the hearing.  His e-mail was \nsent on March 6, 2024, immediately following the dismissal hearing.   Counsel for the Claimant \nasked that he be removed as attorney of record in this matter per the Claimant’s request.    \n\nJACKSON-LIGHT – H205427 \n \n5 \n \nRegarding  the  motion, at  the first dismissal hearing of  March  6,  2024, the Respondents \nasked for a dismissal without prejudice because the Claimant has not requested a hearing since the \nfiling of the Form AR-C, which was filed in October 2023.  However, the Claimant authored an \ne-mail as noted above asking that her claim not be dismissed.   \nFollowing this first dismissal hearing hearing, I found in an Opinion dated April 15, 2024, \nthat under the circumstances, the dismissal of this claim was not warranted at that particular time.  \nAs a result, I found that the Respondents’ motion to dismiss this claim was respectfully denied.  \nAt that time, the Claimant was given a word of caution that failure on her part to prosecute this \nclaim might result in it being dismissed.  \nSubsequently, the  Claimant did  not prosecute  her  claim.   Hence,  there  was  no  effort \nwhatsoever on the part of the Claimant to try and resolve or pursue some type of resolution of her \nclaim.   Therefore,  the  Respondents renewed  their  motion  to dismiss this  claim  for  a  lack  of \nprosecution.   \nOn July 17, 2024, my office sent the Claimant a letter giving her twenty days to respond to \nthe motion to dismiss.     \nStill, there was no response from the Claimant.  \nA Notice of Hearing was also sent to the Claimant on July 17, 2024, setting the claim for \na hearing on the renewed motion to dismissal for September 4, 2024, at 9:00 a.m. at the Union \nCounty Courthouse, in El Dorado.   Said notice was sent to the Claimant by first-class and certified \nmail to the same address as before.  This notice was returned to the Commission on July 24, 2024, \nas   undeliverable.    However,   the   first-class   letter   was   not   returned. Thus,   the evidence \npreponderates that the Claimant received proper notice of the dismissal hearing.  \n\nJACKSON-LIGHT – H205427 \n \n6 \n \nNevertheless,  the second  dismissal hearing  was  held  as  scheduled.   The  Respondents \nappeared through their attorney.  The Claimant did not appear at the hearing.  The Respondents’ \ncounsel argued that  the Claimant  has  failed  to  prosecute  her claim for workers’ compensation \nbenefits.  He further noted that the Claimant has not taken any affirmative action to prosecute her \nclaim in the last few months.  More specifically, the Respondents’ counsel essentially argued that \nthe Claimant has not taken any bona fide action to advance her claim since the filing of the Form \nAR-C, which was done in October of 2023.  \nTherefore, the Respondents’ attorney moved that this claim be dismissed pursuant  to \nCommission Rule  099.13 with  or  without  prejudice for  both the initial and additional workers’ \ncompensation benefits filed for herein.  Initial  \nA review of the evidence shows that the Claimant has had ample time to pursue her claim \nfor workers’ compensation benefits, but she has not done so, nor has she resisted the motion for \ndismissal.  Here, the evidence preponderates that the Claimant has failed to timely prosecute this \nclaim for workers’ compensation benefits.  Moreover, I am convinced that the Claimant has now \nabandoned her claim for benefits since she has taken no steps whatsoever to pursue any type of \nresolution in this matter, and she did not appear at the dismissal hearing.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that  the Respondents’ \nmotion  to dismiss for  a  lack  of  prosecution  to  be  well founded.  I thus find  that  pursuant  to \nCommission Rule  099.13,  this  claim  for workers’ compensation benefits  should  be  dismissed \nwithout prejudice to the refiling within the limitation period specified under the Arkansas Workers’ \nCompensation Act (the “Act”).  Since  I  have  granted  the  request  for  this  claim  to  be  dismissed \nunder Commission Rule 099.13, the issue pertaining to the dismissal of it under Ark. Code Ann. \n§11-9-702 has been rendered moot and not discussed herein.     \n\nJACKSON-LIGHT – H205427 \n \n7 \n \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a renewed motion for dismissal \nof this claim, for which a hearing was held.  \n \n3. Appropriate notice of the dismissal hearing was tried on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            4. The  Respondents’ renewed motion  to  dismiss  this  claim  for  a  lack  of \nprosecution  is  hereby granted without  prejudice under Commission Rule \n099.13.  \n \nORDER \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for workers’ compensation benefits.  This dismissal is per Rule 099.13, \nwithout prejudice to the refiling of this claim within the limitation period. \n IT IS SO ORDERED. \n \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":13329,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H205427 CRYSTAL JACKSON-LIGHT, EMPLOYEE CLAIMANT GPM INVESTMENTS, LLC, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT HELMSMAN MANAGEMENT SERVICES, LLC, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED OCTOBER 29, 2024 H...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:48:17.158Z"},{"id":"alj-H305634-2024-10-28","awccNumber":"H305634","decisionDate":"2024-10-28","decisionYear":2024,"opinionType":"alj","claimantName":"Steven Keeling","employerName":"Foust Fabrication, Co","title":"KEELING VS. FOUST FABRICATION, CO. AWCC# H305634 October 28, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KEELING_STEVEN_H305634_20241028.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KEELING_STEVEN_H305634_20241028.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H305634 \n \nSTEVEN KEELING, Employee CLAIMANT \n \nFOUST FABRICATION, CO., Employer RESPONDENT \n \nAPPLIED UNDERWRITERS, Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 28, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by JASON M. HATFIELD, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On July  30,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.   A pre-hearing conference was conducted on May 13, 2024, and a Pre-hearing Order \nwas  filed  on May  14,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on August \n23, 2023. \n 3. The claimant sustained a compensable injury to his back on or about August 23, 2023 \n By agreement of the parties the issue to be litigated is limited to the following: \n\nKeeling – H305634 \n \n-2- \n 1. Whether claimant is entitled to additional medical treatment for his compensable back \ninjury, in the form of a lumbar fusion as recommended by Dr. James Blankenship. \n The claimant's contentions are as follows: \n“Claimant   sustained   a   compensable   injury   while   working   for \nRespondent on or about 8/23/23. At that time, Claimant was in the \ncourse  and  scope  of  his  employment  with  Respondent  when  the \nscissor lift he was operating malfunctioned, causing it to fall while \nClaimant was still inside the machine. Claimant fell approximately \n20  feet  to  the  ground  below.  Claimant  was  rushed  to Mercy \nHospital by ambulance. \n \nImaging  revealed  multiple  fractures  along  Claimant’s  lumbar \nspine,  ribs  and  sternum.  A  CT  scan  of  his  abdomen  showed  a \ncompression fracture of  the L1 vertebrae  with approximately 20% \nheight  loss  in  that  joint.  He  was  instructed  to  follow  up  with  a \nneurosurgeon  and  return  to  the  hospital  in  2  weeks  for  repeat \nimaging. \n \nAt   a   follow   up   visit   on   10/9/23,   Dr.   Castellvi   at   Mercy \nrecommended   that   Claimant   participate   in   physical   therapy. \nClaimant  attended  the  recommended  physical  therapy  and  was \nreferred to Dr. Cannon for continued pain. Dr. Cannon scheduled a \nlumbar  epidural  steroid  injection  for  the  back  pain.  The  injection \ndid  not  provide  any  relief.  At  that  time,  Claimant  began  treating \nwith Dr. Blankenship. \n \nDr.   Blankenship   reviewed   the   imaging   and   determined   that \nClaimant    suffered    from    severe     foraminal    stenosis    with \nretrolisthesis,  significant  facet  arthropathy,  and  an  annular  fissure \non  the  midline.  Since  conservative  measures  have  failed,  Dr. \nBlankenship  has  recommended  a  Lumbar  Arthrodesis  surgery  on \nthe  L4-L5  and  L5-S1.  Respondents  have  denied  the  requested \nsurgery  and  the  recommendation  for  a  post  op  lumbar  brace  and \npost op bone stimulator. \n \nAdditionally,  the  Respondents  have  failed  to  pay  medical  bills \nfrom   Mercy   Hospital,   Bentonville   Ambulance,   Delta   Medical \nSupplies, Neurosurgery Spine Center and Siloam Springs Hospital. \nThese bills have been provided to the Respondents.” \n \n The respondents’ contentions are as follows: \n\nKeeling – H305634 \n \n-3- \n“Respondents contend that appropriate benefits have been paid as a \nresult  of  the  compensable  injury.  Respondents  contend  that  the \nproposed   surgery   by   Dr.   Blankenship   is   not   related   to   the \ncompensable injury.” \n \n The claimant in this matter is a 34-year-old male who sustained a compensable injury to \nhis low back on or about August 23, 2023, when a scissor-lift he was on tipped over and fell to \nthe ground. The claimant was at  a height of about 20-feet  when the scissor-lift fell over and he \nfell  hitting  the  concrete  beneath  him,  tail  end  first.  The  claimant  testified  that  his  pain  was  so \ngreat  that  he  laid  on  the  ground  until  an  ambulance  arrived  to  take  him  to  Mercy  Hospital  in \nRogers, Arkansas. \n The  claimant  was  admitted  to  the  hospital  that  day  and  spent  the  night  before  being \nreleased the following day. Following is a portion of the claimant’s hospital records from that \ntime: \nFollow-up   &   Outstanding   Issues/Tests:   Follow-up   with   Dr. \nGammer’s  (orthopedics)  office  in  2  weeks  for  repeat  imaging. \nFollow-up with Dr. Castellvi’s (neurosurgery) in 4 weeks. \n \nHospital  Course:  Steven  Keeling  is  a  32  y.o.  male  who  was \nadmitted to Mercy Hospital NWA on 8/23/2023 and found to have \na principle diagnosis of a compression fracture of the L1 vertebra, \nclosed  nondisplaced  zone  III  fracture  of  the  sacrum,  contusion  of \nthe left arm and rhabdomyolysis after a fall from a scissor lift. His \ncreatinine improved with IV hydration. \n \nHe was seen by orthopedics regarding closed nondisplaced zone III \nfracture  of  the  sacrum.  They  recommended  WBAT  with  walker \nand to follow-up in 2 weeks for repeat imaging. \n \nNeurosurgery  was  consulted  regarding  L1  compression  fracture \nand  recommended  TLSO  brace  when  out  of  bed  and  okay  to \nremove  when  laying  down  and  bathing.  He  is  to  follow-up  in  4 \nweeks for repeat imaging. \n \nPatient was seen by PT and fitted for TLSO and he was discharged \nhome in stable condition. \n\nKeeling – H305634 \n \n-4- \n \n The claimant was seen by Dr. Alex Castellvi on October 9, 2023. Following is a portion \nof that medical report: \nASSESSMENT AND PLAN: \nIs  a  32-year-old  gentleman  who  had  an  L1  compression  fracture. \nX-rays  of  the  lumbar  spine  shows  a  compression  fracture  with \napproximately 10 to 20% loss of height. At this time the patient is \ncomplaining   of   radicular   complaints   down   the   right   lower \nextremity with numbness in the S1 distribution on the right side. I \nwould like to obtain an MRI of the lumbar spine without contrast. I \nwould also like the patient to attempt physical therapy and consider \nhaving  a  right-sided  epidural  steroid  injection  at  L5-S1.  Also \nobtain flexion-extension films of the lumbar spine to assess for any \nlumbar  instability  at  L5-S1.  I  would  the  patient  like  the  patient  to \nfollow-up in the neurosurgery clinic in approximately 3 months for \nfurther   evaluation.   Please   feel   free   to   contact   me   with   any \nquestions or concerns. \n \n On  October  25,  2023,  the  claimant  underwent  an  MRI  of  his  lumbar  spine  without \ncontrast at Siloam Springs Regional Hospital. The report from that diagnostic testing is found at \nClaimant’s Exhibit 2, pages 1- 2, and is signed by Dr. Micah Fritsche. Following is a portion of \nthat diagnostic report: \nIMPRESSION: \n1. No acute abnormality in the lumbar spine. \n2.   Mild-to-moderate   multilevel   degenerative   disc   disease.   No \nsignificant central canal or neuroforaminal stenoses. \n3. Posterior central annular fissuring at L4-L5. \n \n The  claimant  was  seen  by  Dr.  Robert  Cannon  of The  Neurosurgery  Spine  and  Pain \nManagement Center on December 21, 2023. Following is a portion of that medical record:  \nHPI: \nMr.  Keeling  sustained  a  20  foot  fall  at  work  when  he  fell  of  a \nscissorlift  onto  concrete  on  August  23,  2023.  He  had  a  closed \npelvis  fracture  and  since  that  time  has  had  some  significant  low \nback  pain.  He  now  describes  pain  in  his  lower  back  going  down \nthe right leg down to the level of the calf and occasionally into the \nfoot  and  toes.  He  has  some  numbness  as  well  as  tingling.  He \n\nKeeling – H305634 \n \n-5- \ndescribes a pain typically as burning in nature and rates it 8 out of \n10 at the most severe and a 3 out of 10 at the least severe. He did \nnot  have  any  pain  prior  to  his  fall  and  it  started  after  the  fall.  The \npain  is  worsened  by  walking,  standing,  sitting,  and  changes  in \nweather. Excessive bending or twisting also increases his pain. \n \nHe has currently been to physical therapy with some improvement. \nHe  has  done  a  home  exercise  program  as  well  as  stretching  with \nsome  mild  improvement.  He  has  tried  a  TENS  unit  which  helps \noccasionally and has tried topical agents such as anti-inflammatory \ncreams  and  heat  and  ice.  He  has  not  had  any  type  of  injections \npreviously. \n \n*** \nDiagnosis: \nM51.16  Intervertebral  disc  disorders  with  radiculopathy,  lumbar \nregion \nM54.15 Radiculopathy, lumbar region \nM47.897 Other spondylosis, lumbosacral region \nM46.1 Sacroiliitis, not elsewhere classified \n \nRecommendations: \n1. Lumbar epidural steroid injection to be done under fluoroscopy. \nWe will get his MRI scans that were not available at today’s visit. \nHe  goes  a  history  of  some  disc  herniations/bulging  at  the  L4-L5 \ndisc    and    he    has    symptoms    to    match    an    L4-L5,    L5-S1 \nradiculopathy. We will get those scans for review and then proceed \nforward  with  the  injection  as  soon  as  possible.  I  did  not  address \nany work status as I will defer to his primary treatment physicians \nwho  have  him  on  or  off  work  at  this  time.  I  also  discussed  the \npossibility  of  a  right  S1  joint  injection  but  his  pain  seems  to  be \nmore  radicular  in  nature  and  then  we  will  review  the  MRI  for \nfurther options. \n \n2.  Lastly  if  interventional  options  do  not  help,  then  consideration \nof surgical alternatives would be the next step. \n \n A  follow-up note is found at Claimant’s Exhibit 1, page 89, regarding the claimant’s \nlumbar epidural injections with Dr. Cannon dated January 31, 2024. In that note it indicates the \nclaimant had no complications but received only 30% relief on a scale of 0% being no relief and \n\nKeeling – H305634 \n \n-6- \n100% being total relief. It was also noted that the claimant did not experience “a long duration of \npain relief.” \n The  respondent  sent  the  claimant  to  see  Dr.  James  Blankenship  at  The  Neurosurgery \nSpine and Pain Management Center.  The  claimant did so on  February 12, 2024.  Following is a \nportion of that medical record: \nHPI: \nThe patient is in today for evaluation. The patient was seen by Dr. \nCannon  and  referred  in  to  see  us.  He  did  have  an  LESI  with  Dr. \nCannon that gave him very minimal, very temporary relief. He tells \nus  that  on  August  23,  2023,  he  fell  20  feet  and  landed  on  his \ntailbone.  Prior  to  that  he  had  no  history  of  back  and  leg  pain.  His \ngreatest pain complaint is right-sided low back pain to the right hip \nand  right  buttock  and  goes  down  the  posterior  aspect  of  his  right \nlower  extremity  to  his  foot.  He  has  numbness  and  tingling  in  the \nright  lateral  foot  and  third  and  fourth  digits.  He  denies  any \nweakness. Sitting aggravates his pain. He did 20 visits of physical \ntherapy with no relief. He has not worked since his injury. \n \n*** \nImpression: \nDr.  Cannon  saw  this  gentleman  in  late  December.  The  patient  did \nnot have any significant prior history of back pain or leg pain until \nhe  fell  about  20  feet  and  landed  on  his  tailbone  on  August  23  of \nlast  year.  Dr.  Cannon  performed  an  LESI  with  very  minimal  and \ntransient  relief.  The  patient  has  done  a  significant  amount  of \nphysical  therapy  with  no  significant  relief.  The  patient’s  chief \ncomplaint  is  right  buttock  and  posterolateral  leg  pain  to  his  foot. \nHe  has  paresthesias  in  the  third  and  fourth  digits  of  his  right  foot \nwith  no  weakness.  The  patient  4/5  strength  in  his  right  EHL \nindicative  of  an  L5  radiculopathy  on  the  right-hand  side.  He  does \nhave significant malalignment. His MRI demonstrates severe facet \narthropathy.  At  the  L4-L5  level  he  has  a  gross  annular  fissure  in \nthe  midline.  At  L3-L4  he  has  significant  facet  arthropathy.  His \npiriformis  examination  today  is  markedly  positive.  His  MRI  does \nnot   show   any   significant   foraminal   stenosis   but   his   plain \nradiographs  have  severe  foraminal  stenosis  with  retrolisthesis  at \nthe L5-S1 level. Steve visited with him about his previous therapy \nand it does appear that he had good treatment for his piriformis but \nit  just  did  not  afford  him  any  relief.  His  S1  joint  examination  is \nonly positive for Faber’s. I think we have a combination of an L5 \n\nKeeling – H305634 \n \n-7- \nradiculopathy   from   foraminal   stenosis.   Once   again   his   MRI \ndemonstrates    some    posterior    disc    bulging    at    this    level. \nInterestingly when he lies down on the MRI table he does not have \nanywhere  near  the  significant  retrolisthesis.  I  think  when  he  is \nstanding he has retrolisthesis because of the instability at the L5-S1 \ndisc  space  and  that  creates  the  neural  foraminal  narrowing.  If  he \nhad  not  had  appropriate  significant  conservative  treatment  on  his \npiriformis, I would say we need to do that but he has. He also has a \ngross  annular  fissure  at  L4-L5.  The  pain  he  is  having  may  very \nwell  also  be  referred  from  that  level  from  the  annular  fibers  and \nwhere the L5 nerve root goes back in the spinal cord. \n \nRecommendations: \nI   told   him   he   has   failed   all   routine   and   usual   conservative \nmeasures. I have told him that surgical intervention would need to \ninclude  an  L4-L5  and  L5-S1  arthrodesis.  The  L4-L5  level  would \nbe done via a lateral approach on L4-L5. He would then undergo a \nposterior   decompression   and   foraminal   decompression   on   the \nright-hand  side  with  a  TLIF  implantation  and  right  side  unilateral \ncortical screws L4 to S1. \n \nI  have  offered  him  a  lumbar  arthrodesis  at  L4-L5  and  L5-S1.  The \nrationale  for  the  L4-L5  level  has  to  do  with  the  fact  that  he  has  a \ngross  annular  fissure  at  this  level  which  could  give  him  referred \npain  down  the  right  leg  and  also  contribute  to  his  piriformis \nsyndrome.  The  gentleman  also  has  anterior  splaying  at  this  level \nthat markedly reduces in flexion but at his age would be indicative \nof annular dysfunction and instability. The rationale for the L5-S1 \nlevel   is   that   he   has   severe   foraminal   stenosis   on   his   plain \nradiographs with marked retrolisthesis. This is not present when he \nis  recumbent  on  the  MRI  table  which  is  just  an  indication  that  he \nhas  gross  segmental  instability.  He  would  then  undergo  posterior \ndecompression with facetectomy decompressing the L5 nerve root \nall  the  way  out  into  the  neural  exit  foramen  at  L5-S1  with  TLIF \nimplantation.  He  would  then  undergo  unilateral  cortical  screw \nplacement  on  the  right-hand  side.  The  gentleman  understands  the \nrisks  and  benefits  of  surgery.  He  is  going  to  go  home  at  my \nsuggestion  and  talk  to  his  family  and  then  get  back  with  us  about \nwhat he wants to do. \n \n The  claimant  has  asked  the  Commission  to  determine  if  he  is  entitled  to  additional \nmedical  treatment  for  his  compensable  back  injury  in  the  form  of  surgical  intervention  as \nrecommended by Dr. Blankenship. \n\nKeeling – H305634 \n \n-8- \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n The respondent in this matter requested a peer review be performed by Care Review out \nof Arlington, Texas. That review was done on April 16, 2024, at the expense and request of the \nrespondent.  It  was  performed  by  Dr.  E.  Thomas Chappell,  a  board-certified  neurological \nsurgeon. Records and evidence regarding that peer review can be found at Claimant’s Exhibit 1, \npages  96-103.  It  is  clear  from  those  records  that  Dr. Chappell agreed  with  the  surgical \nintervention recommended by Dr. Blankenship. Following is a portion of those records: \nRecommendation and Clinical Rationale: \n \n1. (Appeal)  Lumbar  arthrodesis  L4-L5  &  L5-S1.  CPT  codes \n22558, 22224, 22633, 63056, 63047, 22840, 22845, 22853 X2. \nODG  by  MCG,  Evidence-Based  Medical  Treatment  Guidelines, \nLumbar Fusion (Updated Mar 29, 2024) states, “Lumbar fusion \nmay   be   indicated   for   1   or   more   of   the   following:   Lumbar \nspondylolisthesis  (and  presence  of  1  or  more  of  the  following: \nSymptoms  requiring  treatment,  as  indicated  by  the  presence  of \nALL  of  the  following:  Patient  has  persistent  disabling  symptoms, \nincluding 1 or more of the following: Low back  pain: Neurogenic \nclaudication: Radicular pain).” \n \nWithin  the  medical  information  available  for  review,  there  is \ndocumentation  of  low  back  pain  radiating  to  the  right  lower \nextremity  to  the  foot  with  positive  SLR  on  the  right,  decreased \nsensation in the right L5 dermatome, diminished ankle jerk on the \nright,   and   marked   right   EHL   weakness   that   persists   despite \nmedication, ESI, physical therapy, home exercise, and TENS. MRI \n\nKeeling – H305634 \n \n-9- \nrevealed mild to moderate multilevel degenerative disc disease, no \nsignificant   central   canal   or   neuroforaminal   stenoses,   posterior \ncentral  annular  fissuring  at  L4-L5.  Radiographs  revealed  severe \ndisc   space   settling   at  the   lumbosacral   with   retrolisthesis   that \nexacerbated  the  extension  and  slightly  reduces  in  flexion  and \nmarked  disc  space  settling  and  anterior  splaying  at  L45  that  does \nexacerbate   in   extension   and   significantly   reduces   in   flexion. \nTherefore,  I  recommend  certification  of  the  requested  lumbar \narthrodesis  L4-L5  &  L5-S1,  CPT  codes  22558,  22224,  22633, \n63056, 63047, 22840, 22845, 22853 X2. \n \n The respondent requested another review of the claimant’s condition from Dr. Owen \nKelly,  a  board-certified  orthopedic  surgeon.  On  March  22,  2024,  Dr.  Kelly  issued  that  report. \nFollowing is the summary found at the end of that report: \nSUMMARY: \nMr.  Keeling  sustained  and  L1  Burst  fracture  with  a  fall  from  a \nheight of around 20 feet. The imaging and exam revealed a loss of \nvertebral  height  of  20-25%,  an  intact  posterior  ligament  complex \nand  an  initial  intact  neurological  status.  He   also  sustained  a \nquestionable   sacral   injury.   Treatment   consisted   of   bracing, \nphysical  therapy  and  an  injection.  He  continues  to  heal  and  has \nsome sensation loss documented at L5. Progression to full healing \nmay  take  up  a  full  year.  The  initial  treating  neurosurgeon  has \nindicated  that  surgical  intervention  was  not  necessary  and  this \nassessment  is  correct.  The  pathology  noted  at  the  lower  lumbar \nlevels appears to be non-traumatic. \n \nI  note  that  both  Dr.  Kelly  and  Dr. Chappell only  performed  medical  record  reviews  and  never \nsaw the claimant or provided medical treatment to the claimant. \n Dr.  Cannon  in  his  December  21,  2023,  medical  report  regarding  the  claimant  stated, \n“Lastly if interventional options do not help, then consideration of surgical alternatives would be \nthe  next  step.”  The  medical  records  and  the  claimant’s  testimony  are  in  agreement  that \nconservative care  received  by  the  claimant  has  not  improved  his  condition  including  physical \ntherapy  and  epidural  steroid  injections.  Both  Dr.  Blankenship  and  the  respondent-hired  peer \nreview  doctor,  Dr. Chappell,  agree  that  the  surgical  recommendations  of  Dr.  Blankenship  are \n\nKeeling – H305634 \n \n-10- \nappropriate.  Only  Dr.  Kelly,  a  board-certified  orthopedic  surgeon, finds  Dr.  Blankenship’s \nsurgical  recommendations  inappropriate  care.  In  Dr.  Kelly’s  report,  he  states,  “The  initial \ntreating  neurosurgeon  has  indicated  that  surgical  intervention  was  not  necessary,  and  this \nassessment is correct.” After thorough review of the medical records submitted into evidence in \nthis matter, I find no doctor or medical provider who “indicated that surgical intervention was \nnot necessary.” While Dr. Castellvi provided conservative treatment for the claimant, he never \nopined  on  surgical  intervention.  The  greater  weight  of  the  evidence  in  this  matter  supports  that \nby  a  preponderance  of  the  evidence  the  additional  medical  treatment  recommended  by  Dr. \nBlankenship  in  the  form  of  surgical  intervention  is  reasonable  and  necessary  medical  treatment \nfor the claimant’s compensable back injury. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nMay 13, 2024, and contained in a Pre-hearing Order filed May 14, 2024, are hereby accepted as \nfact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nadditional  medical  treatment  for  his  compensable  back  injury  in  the  form  of  lumbar  fusion \nsurgery as recommended by Dr. James Blankenship and its aftercare. \n \n \n\nKeeling – H305634 \n \n-11- \n ORDER \nThe  respondents  shall  be  responsible  for  payment  of  the  additional  medical  treatment \nrecommended by Dr. Blankenship in the form of surgical intervention and its aftercare. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.” Here, no indemnity \nbenefits  were  controverted  and  awarded;  therefore,  no  attorney  fee  has  been  awarded. Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":23549,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H305634 STEVEN KEELING, Employee CLAIMANT FOUST FABRICATION, CO., Employer RESPONDENT APPLIED UNDERWRITERS, Carrier RESPONDENT OPINION FILED OCTOBER 28, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. C...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","lumbar","fracture","hip","ankle"],"fetchedAt":"2026-05-19T22:48:06.694Z"},{"id":"alj-H205073-2024-10-28","awccNumber":"H205073","decisionDate":"2024-10-28","decisionYear":2024,"opinionType":"alj","claimantName":"Deleon Morehead","employerName":"Hino Mtrs. Mfg. USA","title":"MOREHEAD VS. HINO MTRS. MFG. USA AWCC# H205073 October 28, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Morehead_Deleon_H205073_20241028.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Morehead_Deleon_H205073_20241028.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H205073 \n \n \nDeLEON MOREHEAD, EMPLOYEE CLAIMANT \n \nHINO MTRS. MFG. USA, INC., \nEMPLOYER RESPONDENT \n \nFIRST LIBERTY INS. CORP., \nCARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 28, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 25, 2024, in \nForrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by  Mr. Jason  M.  Ryburn, Attorney at Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on October 25,  2024, in \nForrest  City,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich best ascertains the rights of the parties”),  forms,  pleadings,  reports,  and \ncorrespondence related to this claim, consisting of 16 pages. \n\nMOREHEAD – H205073 \n \n2 \n \n The record shows the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on July  15,  2022,  Claimant \npurportedly  suffered  an  injury  to  his  knee at work  on July  7, 2022.    According  to \nthe   Forms AR-2   that   were filed   on July   19   and   20,   2022, respectively, \nRespondents  accepted   the   claim and   paid  medical   and   indemnity   benefits \npursuant thereto. \n On November  29,  2023, through  then-counsel B.  Tanner  Thomas  of \nRainwater, Holt & Sexton, Claimant filed a Form AR-C, requesting the full range of \ninitial and  additional benefits in  connection  with his  knee injury that  he  allegedly \nsuffered  at  work  on  July 7,  2022,  while he was “marking inventory.”  No  hearing \nrequest  accompanied this  filing.   Respondents  emailed  the  Commission  on \nNovember 29, 2023, indicating that their position had not changed. \n Respondents’ counsel entered his appearance before  the  Commission on \nMay  29,  2024.  On March 18,  2024, through  co-counsel  Laura  Beth  York,  the \nRainwater  firm moved  to  withdraw  from their representation  of  Claimant.    In \nsupport  of  the  motion,  York  attached  to  it  a  letter  the  firm  sent  Claimant  on \nFebruary 6, 2024, documenting that they had been unsuccessful in their efforts to \nreach Claimant by phone and by mail.  In an Order entered on April 23, 2024, the \nFull Commission granted the motion under AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until August \n15, 2024.  On that date, Respondents filed the instant motion, asking for dismissal \n\nMOREHEAD – H205073 \n \n3 \n \nof the claim because “the claimant has failed to prosecute his claim for additional \nworkers’ compensation benefits.”  My  office wrote  Claimant on August  20,  2024, \nasking  for  a  response  to  the  motion within  20  days.   The  letter  was  sent  by  first \nclass and  certified mail  to the Memphis,  Tennessee address for him listed  in  the \nfile and  on  the  Form  AR-C.   The  United  States  Postal  Service (“USPS”) was \nunable  to  confirm  whether Claimant had  claimed the  certified  letter; but the  first-\nclass  letter  was  not  returned.   Regardless,  no  response  from him to  the  motion \nwas  forthcoming.    On September  13,  2024,  a  hearing  on  the Motion to Dismiss \nwas  scheduled for October 25,  2024, at 12:30 p.m.  at  the St.  Francis  County \nCourthouse in Forrest  City.   The  notice  was  sent  to  Claimant  via  first-class  and \ncertified  mail to  the  same  address as in  the  previous  instance.   As  before,  while \nUSPS could not confirm delivery of the certified letter, the first-class letter was not \nreturned to the Commission. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nMOREHEAD – H205073 \n \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby granted;  this claim for additional benefits \nis hereby dismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nMOREHEAD – H205073 \n \n5 \n \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the October 25, 2024, hearing to argue against \nits dismissal) since the filing of his Form AR-C on November 29, 2023.  Thus, the \nevidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nMOREHEAD – H205073 \n \n6 \n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7545,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H205073 DeLEON MOREHEAD, EMPLOYEE CLAIMANT HINO MTRS. MFG. USA, INC., EMPLOYER RESPONDENT FIRST LIBERTY INS. CORP., CARRIER RESPONDENT OPINION FILED OCTOBER 28, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 25, 2024, in Forrest Cit...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:48:08.763Z"},{"id":"alj-H400710-2024-10-25","awccNumber":"H400710","decisionDate":"2024-10-25","decisionYear":2024,"opinionType":"alj","claimantName":"Walter Terry","employerName":"Auto Credit Xpress, LLC","title":"TERRY VS. AUTO CREDIT XPRESS, LLC AWCC# H400710 October 25, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TERRY_WALTER_H400710_20241025.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TERRY_WALTER_H400710_20241025.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:48:04.608Z"},{"id":"alj-H400898-2024-10-23","awccNumber":"H400898","decisionDate":"2024-10-23","decisionYear":2024,"opinionType":"alj","claimantName":"Waylon Osborn","employerName":"Penmac Staffing Services, Inc","title":"OSBORN VS. PENMAC STAFFING SERVICES, INC. AWCC# H400898 October 23, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/OSBORN_WAYLON_H400898_20241023.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OSBORN_WAYLON_H400898_20241023.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:48:00.417Z"},{"id":"alj-H306164-2024-10-23","awccNumber":"H306164","decisionDate":"2024-10-23","decisionYear":2024,"opinionType":"alj","claimantName":"Whitney Scruggs","employerName":"Express Services, Inc","title":"SCRUGGS VS. EXPRESS SERVICES, INC. AWCC# H306164 October 23, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SCRUGGS_WHITNEY_H306164_20241023.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCRUGGS_WHITNEY_H306164_20241023.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:48:02.482Z"},{"id":"alj-H303330-2024-10-22","awccNumber":"H303330","decisionDate":"2024-10-22","decisionYear":2024,"opinionType":"alj","claimantName":"Alma Hicks","employerName":"Hamburg Jr. High School","title":"HICKS VS. HAMBURG JR. HIGH SCHOOL AWCC# H303330 October 22, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HICKS_ALMA_H303330_20241022.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HICKS_ALMA_H303330_20241022.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        CLAIM NO.: H303330 \n \nALMA HICKS,   \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nHAMBURG JR. HIGH SCHOOL,  \nEMPLOYER                                                                                                            RESPONDENT  \n \nAR SCHOOL BOARDS ASSOC. WCT,              \nINSURANCE CARRIER/TPA                                                                               RESPONDENT \n      \n        \n                                              OPINION FILED OCTOBER 22, 2024    \n \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n  \nThe Claimant, pro se, appeared at the hearing. \n \nRespondents represented by the Honorable Melissa Wood, Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis matter comes before the Commission pursuant to the Motion to Dismiss filed by the \nRespondents.    A  hearing  on  the  motion  was  conducted  on September  4,  2024,  in El  Dorado, \nArkansas.  Thus, the sole issue for determination is whether this claim should be dismissed due to \nthe Claimant’s failure  to prosecute it  under Ark.  Code  Ann.  §11-9-702 (Repl.  2012),  and/or \nArkansas Workers’ Compensation Commission Rule 099.13. \n The record consists of September 4, 2024, hearing transcript and exhibits.  In that regard, \nCommission’s Exhibit No. 1 includes three actual pages, which has been marked accordingly, \nand Respondents’ Exhibit 1 consisting of ten numbered pages was marked as thus so.   \n The Claimant, Ms. Alma Hicks appeared for the hearing and gave testimony.  \n\nHICKS – H303330 \n \n \n2 \n \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by \napplicable law.   \n                            Background \nThe record reflects the following procedural history: \nThe Claimant’s former attorney filed a Form AR-C,  with  the  Commission  on  May  23, \n2023, alleging that the Claimant sustained an accidental injury on March 14, 2023, while working \nfor Hamburg Jr. High School.  According to this form, the Claimant allegedly sustained injuries \nto  her  face  and  head while  moving  a  desk.  The Claimant’s former attorney requested only \nadditional benefits.    \nThe  Respondents  initially  filed  a  Form  AR-2  with  the  Commission  accepting  this  as  a \nmedical  only  claim.    Subsequently, the  Respondents  filed an  amended  Form  AR-2  filed on \nSeptember 18, 2023, accepting the claim as being compensable and paid some medical benefits \nand temporary total disability compensation in this matter.   \nThe Claimant’s attorney requested to withdraw from representing the Claimant in this \nmatter.  On June 25, 2024, the Full Commission entered an order allowing the Claimant’s attorney \nto withdraw from representing the Claimant in his case. \nSince the filing of Form AR-C, the Claimant has failed to pursue her claim for additional \nworkers’ compensation benefits.  Hence, the Claimant failed to make a bona fide request for a \nhearing on this matter.   \nThe  Respondents  filed  with  the  Commission  on  July  8,  2024,  a  Motion  to  Dismiss  for \nFailure to Prosecute, along with a Certificate of Service to the Claimant.   \n\nHICKS – H303330 \n \n \n3 \n \nOn July 12, 2024, my office wrote to the Claimant and requested a response to the motion \nwithin twenty days.  The letter was sent by first-class and certified mail to the address listed by the \nClaimant with the Commission.   \nA dismissal hearing notice was sent to the parties on August 2, 2024, scheduling the hearing \nfor September 4, 2027, at 9:30 a.m. at the Union County Courthouse, in El Dorado.   Said notice \nwas sent to Claimant by first-class and certified mail at the same address as before.  Per tracking \ninformation received from the United States Postal Service, the dismissal hearing notice sent via \ncertified  mail was  delivered to  the  Claimant  on  August  5,  2024.  The  first-class  letter  was  not \nreturned.    Thus,  the evidence preponderates  that the Claimant  received proper notice  of  the \ndismissal hearing.  \nIn  the  case  at the  bar,  a hearing  was in  fact conducted on the Respondents’ motion  to \ndismiss as scheduled.  The Claimant also appeared at the hearing.  The Respondents appeared at \nthe hearing through their lawyer.  Counsel argued for dismissal of this case because the Claimant \nhas not sought any type of bona fide hearing since the filing of the Form AR-C in May of 2023.  \nSpecifically, counsel moved for dismissal of this claim under the authority of Ark. Code Ann. §11-\n9-702 (Repl.   2012), and/or Arkansas  Workers’  Compensation   Commission   Rule   099.13.  \nHowever, the Claimant requested that her claim not be dismissed at this time.  Specifically, she \nindicated  that  she  has  experienced  some  personal  challenges  and  been  unable  to  prosecute  her \nclaim.    However,  the  Claimant  indicated  that  she  intends  to  pursue  her  claim  for  additional \nworkers’ compensation benefits in the near future.   \n \n \n \n\nHICKS – H303330 \n \n \n4 \n \n            Discussion  \nIn that regard, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \n            AWCC 099.13 reads:  \nUpon meritorious application to the Commission from either party in an action pending \nbefore the Commission, requesting that the claim be dismissed for want of prosecution, \nthe Commission may, upon reasonable notice to all parties, enter an order dismissing the \nclaim for want of prosecution.  \n \nAs the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012) \nmust prove their entitlement to the relief requested—dismissal of this matter—by a preponderance \nof  the  evidence.    This  standard  means  the  evidence  having  greater  weight  or convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. \n491, 206 S.W.2d 442 (1947).  \n  With  respect  to the  evidence  recounted  above,  (1)  the  parties  were  provided  reasonable \nnotice of the Motion to Dismiss and the hearing on it; and (2) the Claimant has failed to pursue her \nclaim  because  she  has  taken  no  further  action  in  pursuit  of  it  since  the  filing  of  her claim  for \nadditional benefits on May 23, 2023.  However, the Claimant appeared at  the dismissal hearing \nand asked that her claim not be dismissed because she intends to pursue her claim.     \n            After considering the evidence before me, I find that the Respondents’ motion to dismiss \nthis claim due to a lack of prosecution to be well taken.  However, I find that the dismissal of this \nclaim should be denied at this time because the Claimant has indicated that she intends to pursue \n\nHICKS – H303330 \n \n \n5 \n \nadditional benefits in this matter.  Accordingly, the Respondents’ motion to dismiss this claim is \nhereby respectfully denied. \n Of note, during the hearing, the Claimant was cautioned that failure to prosecute her claim \ncould result in it being dismissed.  \n                             FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2.         Reasonable notice of the motion to dismiss and hearing was had on all the \nparties.   \n \n3.      The Respondents’ motion to dismiss is hereby respectfully denied.  \n \n \n        ORDER \n \nIn accordance with the foregoing findings of fact and conclusions of law set forth above, \nthe Respondents’ Motion to Dismiss for Failure to Prosecute is hereby respectfully denied at this \ntime. \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":8639,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H303330 ALMA HICKS, EMPLOYEE CLAIMANT HAMBURG JR. HIGH SCHOOL, EMPLOYER RESPONDENT AR SCHOOL BOARDS ASSOC. WCT, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 22, 2024 Hearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Uni...","outcome":"dismissed","outcomeKeywords":["dismissed:11","denied:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:47:58.290Z"},{"id":"alj-H108549-2024-10-21","awccNumber":"H108549","decisionDate":"2024-10-21","decisionYear":2024,"opinionType":"alj","claimantName":"Jose Betancourt","employerName":"Bhi Energy, Inc","title":"BETANCOURT VS. BHI ENERGY, INC. AWCC# H108549 October 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BETANCOURT_JOSE_H108549_20241021.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BETANCOURT_JOSE_H108549_20241021.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H108549 \n \nJOSE BETANCOURT, Employee                                                                   CLAIMANT \n \nBHI ENERGY, INC., Employer                                                                 RESPONDENT \n \nSTARR INDEMNITY/SEDGWICK, Carrier/TPA                                       RESPONDENT                                                                                                    \n \n \n OPINION FILED OCTOBER 21, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On October 2, 2024, the above captioned claim came on for hearing at Springdale, \nArkansas.    A  pre-hearing  conference  was  conducted  on August  19,  2024 and  a  pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The claimant sustained a compensable injury to his back on September 14, \n2021. \n 3.      Respondent  paid  permanent  partial  disability  benefits  based  on  an  8% \nimpairment rating to the body as a whole. \n\nBetancourt – H108549 \n2 \n \n 4.   Claimant was earning sufficient wages to entitle him to compensation at the \nweekly  rates  of  $675.00  for  total  disability  benefits  and  $507.00  for  permanent  partial \ndisability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Claimant’s entitlement to surgery recommended by Dr. Randolph. \n2.   Temporary total disability benefits as a result of the surgery. \n3.    Attorney’s fee. \nRespondent has also raised as an issue claimant’s correct permanent physical  \nimpairment  rating  as  a  result  of  the  surgery  performed  by  Dr.  Randolph in  April  2022.  \nRespondent  contends with  respect  to  this  issue  that  while  it  accepted  and paid  an  8% \nimpairment  rating,  the  correct  rating  should  have  been  2%.    Accordingly,  respondent \nrequests a credit.  Claimant contends that the impairment rating is 8% which was paid by \nthe respondent. \nThe  claimant  contends  that  two  surgeons  are  recommending  that  the  claimant \nundergo  additional  back  surgery  and  the  medical  records  indicate  that  the  need  for \nsurgery is due to a recurrent condition arising out of the September 14, 2021 injury.  The \nclaimant  contends  there  will  be  a  recovery  period  following  the  surgery  and  that  he  is \nentitled to temporary total disability benefits from the date of surgery until his then treating \nsurgeon releases him from active treatment or until he returns to work, whichever occurs \nsooner.   The  claimant  contends his  attorney  is  entitled  to  an attorney’s  fee  on  any \nindemnity benefits not previously paid.  \nThe  respondents  contend  claimant  injured  his  lumbar  spine  on  September  14, \n2021, and his claim was accepted.  He had surgery and was released to return to work \n\nBetancourt – H108549 \n3 \n \nwith no restrictions.  He is currently working.  He received an 8% PPD rating which was \npaid.  The 8% PPD rating should have been 2% per the AMA Guide.  He is not entitled to \nadditional benefits.  \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non August 19, 2024 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to additional medical treatment in the form of surgery as recommended \nby Dr. Randolph. \n 3.      Claimant  is  not  entitled  to  payment  of  additional  temporary  total  disability \nbenefits at this time. \n 4.   Claimant’s impairment rating attributable to his compensable injury equals 2% \nto the body as a whole.  Respondent is entitled to a credit for permanent partial disability \nbenefits paid in excess of that 2% impairment rating. \n \n FACTUAL BACKGROUND \n Claimant   is   a   36-year-old   man   who   performed   construction   work   for   the \nrespondent.  Claimant has a history of non-work related back problems that resulted in \n\nBetancourt – H108549 \n \n4 \n \nsurgery at the L5-S1 level in 2014.  Claimant testified that after approximately a years’ \nrecovery he returned to work performing his regular activities which included heavy lifting.   \n The parties have stipulated that claimant suffered a compensable injury to his low \nback on September 14, 2021.  After some conservative treatment claimant underwent a \n“revision left L5-S1 micro decompression” by Dr. Gannon Randolph in April 2022.  (See \nGannon report of May 14, 2024.) \n Following  that  surgery  Dr.  Gannon  released  claimant  to  return  to  work  without \nrestrictions on July 19, 2022.  At some point respondent paid claimant permanent partial \ndisability benefits based on an 8% impairment rating to the body as a whole. \n Claimant  testified  that  he  returned  to  work  for  respondent  and  performed  his \nregular job duties despite continuing to have low back pain.  Also at some point claimant \nchanged jobs to work as an electrician which he testified was lighter duty because it did \nnot require heavy lifting. \n Claimant sought additional medical treatment for his low back complaints and was \neventually referred by respondent to Dr. Jared Seale.  Dr. Seale recommended a fusion \nprocedure for a recurrent disc protrusion at the L5-S1 level.  Claimant was subsequently \nevaluated by Dr. Randolph who in a report dated May 14, 2024 also agreed that claimant \nwas in need of a fusion procedure.   \n Claimant  has  filed  this  claim  contending  that  he  is  entitled  to  additional  medical \ntreatment in the form of surgery as recommended by Dr. Randolph.  He also requested \ntemporary total disability benefits as a result of the surgery and a controverted attorney \nfee.  In addition, as previously noted, respondent has raised as an issue claimant’s correct \nimpairment rating as a result of his September 14, 2021 injury. \n\nBetancourt – H108549 \n \n5 \n \nADJUDICATION \n Claimant contends that he is entitled to additional medical treatment in the form of \nfusion surgery as recommended by his treating physician, Dr. Randolph.  Claimant has \nthe  burden  of  proving  by  a  preponderance  of  the  evidence  that  medical  treatment  is \nreasonable and necessary.  Stone v. Dollar General Stores, 91 Ark. App. 260, 209 S.W. \n3d 445 (2005).  What constitutes reasonably necessary medical treatment is a question \nof fact for the Commission.  Wright Contracting Company v. Randall, 12 Ark. App. 358, \n676 S.W. 2d 750 (1984).    \n As previously noted, claimant was sent for an evaluation by Dr. Seale on October \n4, 2023.  Dr. Seale noted that claimant had a work-related injury in September 2021 that \nhad resulted in a recurrent disc protrusion on the left at L5-S1 level and that he underwent \na subsequent revision decompression procedure on April 6, 2022.  He further noted that \nclaimant had some improvement of his pain, but had continued to have persistent pain in \nhis left buttocks and leg.  He also noted that claimant had a remote history of a non-work \nrelated injury approximately ten years ago.  Dr. Seale did not believe further injections \nwould benefit the claimant, but instead recommended that claimant undergo another MRI \nscan and determine whether he had an active nerve compression on the left side.   \n Following that MRI scan Dr. Seale in a report dated November 8, 2023 stated that \nthe  MRI  scan  revealed  a  recurrent  disc  protrusion  causing  moderate  to  severe \ncompression at the S1 nerve root.  Dr. Seale went on to recommend a fusion procedure \nand indicated that claimant’s condition was related to his work injury. \n  The patient’s MRI does reveal a disc protrusion.  This is an \n  objective finding of injury that matches the patient’s \n  subjective complaints of symptoms.  The patient’s \n\nBetancourt – H108549 \n \n6 \n \n  symptoms began on and after the work injury.  The \n  patient has no history of pain in the low back or \n  down the leg prior to the work injury.  Therefore, it \n  is within a certain degree of medical certainty that \n  at least 51% of the patient’s current symptoms and \n  need for fusion are directly related to their work \n  injury. \n \n \n Claimant  subsequently  returned  for  an  evaluation  by  Dr.  Randolph  on  May  14, \n2024.  In his report, Dr. Randolph stated: \n  He had a revision left L5-S1 micro decompression \n  in April 2022, but unfortunately his leg pain never \n  completely resolved and has increased over the \n  past year.  He continues to be significantly bothered \n  by his back and leg pain despite 2 surgeries and \n  physical therapy.  He had a surgical consultation \n  with Dr. Seale in Little Rock who did offer a L5-S1 \n  fusion, but it looks like this may have been denied? \n \n \n Dr. Randolph then went on to also recommend a fusion procedure. \n  At this point really the only option is a fusion procedure \n  of the affected disc.  Therefore, I have recommended \n  L5-S1 ALIF with MIS psif. \n \n \n The record does not contain any evidence that the claimant has suffered a new \ninjury  since  September  14,  2021.    Based  upon  the  opinions  of  Dr.  Seale  and  Dr. \nRandolph, which I find to be credible and entitled to great weight, I find that claimant has \nmet  his  burden  of  proving  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nadditional medical treatment in the form of surgery as recommended by Dr. Randolph.  \n Although claimant initially raised temporary total disability benefits as a result of \nthe surgery as an issue, I do note that claimant acknowledged at the hearing that he is \ncurrently  working  and  he  is  not  claiming  entitlement  to  any  temporary  total  disability \n\nBetancourt – H108549 \n \n7 \n \nbenefits  at  this  point.    Accordingly,  no  temporary  total  disability  benefits  are  being \nawarded. \n The final issue for consideration involves claimant’s impairment rating.  The parties \nhave stipulated that respondent paid permanent partial disability benefits based on an 8% \nimpairment rating to the body as a whole.  It is not known exactly when this impairment \nrating  was  made;  however,  the  respondent  introduced  into  evidence  an  impairment \nevaluation  summary  dated  June  24,  2024,  from  the  Functional  Testing  Centers,  Inc., \nwhich  based  on  the AMA  Guides  Fourth  Edition assigned  claimant  an  8%  impairment \nrating to the body as a whole for a surgically treated disc lesion without residual signs or \nsymptoms pursuant to Table 75 of the AMA Guides.  However, claimant’s surgery in April \n2022  was  the  second  surgical  procedure  on  his  lumbar  disc  according  to  the  medical \nrecords, not the first.  Therefore, claimant’s first surgical procedure in 2014 would have \nresulted in an 8% impairment rating to the body as a whole.  According to Table 75, a \nsecond  operation  adds  an  additional  2%  impairment  rating  to  the  lumbar  spine.  \nAccordingly, while claimant had an 8% rating as a result of his non-work related injury in \n2014, the surgery in April 2022 resulted in only an additional 2% impairment pursuant to \nthe AMA  Guides.    Therefore,  respondent  is  entitled  to  a credit  for  permanent  partial \ndisability benefits paid in excess of the 2% impairment rating.  Obviously, if claimant does \nproceed  to  undergo  additional  surgery,  he  may  be  entitled  to  additional  permanent \nimpairment as a result of the third surgical procedure.  However, that is not an issue at \nthis time. \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \n\nBetancourt – H108549 \n \n8 \n \nhe is entitled to additional medical treatment in the form of surgery as recommended by \nDr.  Randolph.    Claimant  has  continued  to  work  and  is  not  requesting  temporary  total \ndisability  benefits  at  this  time.    Claimant’s  permanent  physical  impairment  rating  as  a \nresult  of  his  compensable  injury  on  September  14,  2021 is  2%  pursuant  to  the AMA \nGuides.  Respondent is entitled to a credit for any benefits paid in excess of this amount. \nPursuant to A.C.A. §11-9-715(a)(1)(B)(ii), attorney fees are awarded “only on the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no \nindemnity benefits were controverted and awarded; therefore, no attorney fee has been \nawarded.   Instead, claimant’s attorney is free to voluntarily contract with the medical \nproviders pursuant to A.C.A. §11-9-715(a)(4). \nRespondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $438.95.  \nIT IS SO ORDERED. \n \n     _____________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":13677,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108549 JOSE BETANCOURT, Employee CLAIMANT BHI ENERGY, INC., Employer RESPONDENT STARR INDEMNITY/SEDGWICK, Carrier/TPA RESPONDENT OPINION FILED OCTOBER 21, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Ark...","outcome":"granted","outcomeKeywords":["granted:7"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T22:47:49.788Z"},{"id":"alj-H205637-2024-10-21","awccNumber":"H205637","decisionDate":"2024-10-21","decisionYear":2024,"opinionType":"alj","claimantName":"Oscar Castillo","employerName":"Hanks Furniture, Inc","title":"CASTILLO VS. HANKS FURNITURE, INC. AWCC# H205637 October 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CASTILLO_OSCAR_H205637_20241021.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CASTILLO_OSCAR_H205637_20241021.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205637 \n \nOSCAR CASTILLO,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nHANKS FURNITURE, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nTRAVELERS INDEMNITY CO./ \nTHE TRAVELERS CO., \nCARRIER/TPA                                                                                                    RESPONDENT \n                                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED OCTOBER 21, 2024 \n \nHearing conducted on Tuesday, October 15, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Oscar Castillo, of Alexander, Saline County, Arkansas, appeared pro se.  \n \nThe respondent was represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n     A hearing was conducted on Tuesday, October 15, 2024, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark. Code  Ann. §  11-9-702(a)(4)  (2024 Lexis \nReplacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n     This claim was accepted as compensable, and the respondents paid all appropriate medical and \nindemnity benefits. A prehearing teleconference was conducted on March 22, 2024, which resulted \nin  a  prehearing  order  filed  March  24,  2024. The  claimant was represented  by  counsel prior  to, \nduring, and after the date the prehearing order was filed on March 24, 2024. By order filed August \n14, 2024, the Full Commission granted the claimant’s attorney’s request to withdraw as the \nclaimant’s counsel. \n\nOscar Castillo, AWCC No. H205637 \n2 \n \n     Soon thereafter, by letter filed with the Commission on August 20, 2024 (letter MTD, or MTD), \nthe  respondents  requested  this  claim  be  dismissed  for  lack  of  prosecution  pursuant  to  the \naforementioned statute and Commission rule.  \n     In compliance with the applicable law the claimant was provided due and legal notice of the \nrespondents’ letter MTD, as well as the date, time, and location of the subject hearing. The claimant \ndid not respond in writing to the respondents’ motion, but he did appear in person at the subject \nhearing.  The  claimant  testified  under  oath  at  the  hearing  he  did  not  have  any  objection  to  the \nrespondents’ MTD.  \n     The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. (Hearing Transcript; Respondents’ Exhibit 1 at 1-27). \nDISCUSSION \n     Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Repl.),  as well as our court of \nappeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 \n(Ark. App. 2004), the Commission scheduled and conducted a hearing on the respondents’ motion \nto dismiss. Rather than recite a detailed analysis of the record, suffice it to say the preponderance \nof  the  evidence  introduced  at  the  hearing and  contained  in  the  record conclusively  reveals  the \nclaimant has failed and/or refused to prosecute his claim at this time. \n     Therefore, after a thorough consideration of the facts, issues, the applicable law, representations \nof counsel, and other relevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having been  mailed due  and  legal  notice  of the respondents’ letter MTD without \nprejudice filed  August  20,  2024,  as  well  as notice  of the  subject  hearing date, time,  and \n\nOscar Castillo, AWCC No. H205637 \n3 \n \nplace, the  claimant appeared in person at the hearing and testified under  oath he did not \nobject to the respondents’ MTD. \n \n3. The respondents’ letter MTD without  prejudice  filed August  20,  2024,  should be  and \nhereby is GRANTED; and this claim is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n     This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n     If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n     IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nOscar Castillo, AWCC No. H205637 \n4","textLength":5360,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205637 OSCAR CASTILLO, EMPLOYEE CLAIMANT HANKS FURNITURE, INC., EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO./ THE TRAVELERS CO., CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED OCTOBER 21, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:47:51.890Z"},{"id":"alj-H307185-2024-10-21","awccNumber":"H307185","decisionDate":"2024-10-21","decisionYear":2024,"opinionType":"alj","claimantName":"Larry Crawford","employerName":"Riceland Foods, Inc","title":"CRAWFORD VS. RICELAND FOODS, INC. AWCC# H307185 October 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Crawford_Larry_H307185_20241021.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Crawford_Larry_H307185_20241021.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307185 \n \n \nLARRY T. CRAWFORD, EMPLOYEE CLAIMANT \n \nRICELAND FOODS, INC., \nEMPLOYER RESPONDENT \n \nSAFETY NAT’L CASUALTY CORP., \nCARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 21, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on October  18,  2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Eric Newkirk, Attorney at Law, Little Rock, Arkansas. \n \n \nI.  BACKGROUND \n This   matter   comes  before  the   Commission   on  the   Motion   to   Dismiss   by \nRespondents.    A  hearing  on  the  motion  was  conducted  on October  18,  2024,  in \nJonesboro, Arkansas.  No testimony was taken in the case.  Claimant, who according to \nCommission records is pro se, failed to appear at the hearing.  Admitted into evidence \nwere  Commission  Exhibit  1 and Respondents’ Exhibit 1, pleadings, correspondence \nand forms related to this claim, consisting of 21 and 22 pages, respectively. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on November  10,  2023,  Claimant \npurportedly  suffered  an  injury  to  his left knee while  walking  to work  on October  31, \n2022.   He  related  that he  slipped and  twisted  his  knee  while  rearranging  bags  on  a \n\nCRAWFORD – H307185 \n \n2 \n \npalletizer.    According  to  the  Form  AR-2  that  was  filed  on November  10,  2023, \nRespondents accepted the claim as a medical-only one. \n On November 2, 2023, through then-counsel Mark Alan Peoples, Claimant filed a \nForm AR-C.  Therein, he alleged that his client was entitled to the full range of additional \nbenefits.  In  an  email accompanying this  filing,  Peoples  stated  that  he  was  “not \nrequesting a hearing.”  Respondents’ counsel entered his appearance on December 15, \n2023.  That same day, Peoples emailed the Commission, seeking a one-time change of \nphysician  on  behalf  of  his  client.    The  doctor  that  was  the  subject  of  the  request,  Joel \nSmith, M.D., declined to accept Claimant as a patient. \n On March  4,  2024, Peoples moved  to  withdraw  from  the  case.   His  motion \nincludes the following allegation:  “Claimant has failed/refused to communicate with me \nregarding this claim, despite repeated attempts.”  In an Order entered on April 10, 2024, \nthe Full Commission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until June  24, \n2024.   On that date, Respondents filed  the instant motion and brief  in  support  thereof, \nasking  for  dismissal  of  the  claim  under  AWCC  R.  099.13  and  Ark.  Code  Ann.  §  11-9-\n702 (Repl. 2012).  My office wrote Claimant on June 26, 2024, asking for a response to \nthe  motion  within  20  days.    The  letter  was  sent  by  first  class  and  certified  mail  to  the \nJonesboro address  of  Claimant  listed  in  the  file  and on his Form  AR-C.   “Bobbie \nCrawford” signed for the certified letter on June 29, 2024; and the first-class letter was \nnot  returned.    Regardless,  no  response  from  Claimant  to  the  motion  was  forthcoming.  \n\nCRAWFORD – H307185 \n \n3 \n \nOn July  17,  2024,  a  hearing  on  the  Motion  to  Dismiss  was initially scheduled  for \nSeptember  6,  2024,  at  1:00 p.m.  at  the Craighead County  Courthouse  in Jonesboro.  \nHowever, on September 3, 2024, the hearing was re-set for October 18, 2024, at 10:30 \na.m.  at  the  same  location.   The Notice of  Hearing was  sent  to  Claimant  via  first-class \nand certified mail to the same address as before.  In this instance, Claimant claimed the \ncertified  letter on  September  5,  2024; and the  one  sent  by  first-class  mail  was  not \nreturned to the Commission. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on October  18, \n2024.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared \nthrough counsel and argued for dismissal under the aforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other  matters \nproperly before the Commission, the following Findings of Fact and Conclusions of Law \nare hereby made in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. Respondents  have  proven  by  a preponderance  of  the  evidence that \nClaimant has failed to prosecute his claim under AWCC R. 099.13. \n\nCRAWFORD – H307185 \n \n4 \n \n4. The Motion to Dismiss is hereby granted; this claim for additional benefits \nis hereby dismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed   for   want   of   prosecution,   the   Commission   may,   upon \nreasonable  notice  to  all  parties,  enter  an  order  dismissing  the  claim  for \nwant of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. \n2012) must prove their entitlement to the relief requested—dismissal of the claim—by a \npreponderance  of  the  evidence.    This  standard  means  the  evidence  having  greater \nweight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As  shown  by  the  evidence  recounted  above,  (1)  the  parties  were  provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon; and (2) Claimant \nhas  failed  to  pursue  his claim  because she  has  taken  no  further  action  in  pursuit  of  it \n(including  appearing  at  the October  18,  2024,  hearing  to  argue  against  its  dismissal) \nsince the  filing  of  his  change-of-physician  request  on  December  15,  2023.    Thus,  the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.    Because  of  this \nfinding, it is unnecessary to address the application of § 11-9-702. \n\nCRAWFORD – H307185 \n \n5 \n \n That leaves the question of whether the dismissal of the claim should be with or \nwithout  prejudice.    The  Commission  possesses  the  authority  to  dismiss  claims  with \nprejudice.  Loosey v. Osmose Wood Preserving Co., 23 Ark. App. 137, 744 S.W.2d 402 \n(1988).    The  Commission  and  the  appellate  courts  have  expressed  a  preference  for \ndismissals without  prejudice.   See Professional  Adjustment  Bureau  v.  Strong,  75  Ark. \n249,  629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for  a  dismissal \nwithout prejudice.  I agree and find that the dismissal of this claim should be and hereby \nis entered without prejudice.\n1\n \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the same \ncause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7595,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H307185 LARRY T. CRAWFORD, EMPLOYEE CLAIMANT RICELAND FOODS, INC., EMPLOYER RESPONDENT SAFETY NAT’L CASUALTY CORP., CARRIER RESPONDENT OPINION FILED OCTOBER 21, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 18, 2024, in Jonesboro, ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:47:54.131Z"},{"id":"alj-H302489-2024-10-21","awccNumber":"H302489","decisionDate":"2024-10-21","decisionYear":2024,"opinionType":"alj","claimantName":"Dane Monger","employerName":"Horseshoe Canyon Ranch","title":"MONGER VS. HORSESHOE CANYON RANCH AWCC# H302489 October 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MONGER_DANE_H302489_20241021.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MONGER_DANE_H302489_20241021.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H302489 \n \nDANE MONGER, Employee                                                                           CLAIMANT \n \nHORSESHOE CANYON RANCH, Employer                                           RESPONDENT                                                   \n \nBRIDGEFIELD CASUALTY/SUMMIT CONSULTING,                             RESPONDENT                                                                                                  \nCarrier/TPA \n \n \n OPINION FILED OCTOBER 21, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by DANIEL E. WREN, Attorney, Little Rock, Arkansas. \n \nRespondents represented by ZACHARY F. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On September  18,  2024,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on June 5, 2024 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The claimant sustained a compensable injury to her left shoulder and head on \nJune 14, 2022. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Additional temporary total disability benefits from October 27, 2022 until April  \n\nMonger – H302489 \n2 \n \n18, 2023, and again from August 24, 2023 through October 11, 2023. \n2.   Average weekly wage. \n3.   Permanent partial disability benefits based on a 4% rating and wage loss. \n4.    Attorney’s fee. \nThe claimant contends she sustained a compensable injury when she was thrown \nfrom a horse on June 14, 2022, suffering a head injury and a right shoulder injury, which \nwas later diagnosed as a torn labrum.  The torn labrum was surgically repaired on April \n18, 2023.  From June 14, 202, the respondent employer provided light duty employment \nfor the claimant until she was terminated on October 27, 2022.  The respondents paid for \nall reasonable and necessary medical treatment until claimant was released at maximum \nmedical improvement on October 11, 2023.  Respondents stopped paying temporary total \ndisability  on  August  24,  2023.    When  claimant  was  released  at  maximum  medical \nimprovement  the  doctor  did  a  passive  range  of  motion  test,  which  would  entitle  the \nclaimant to a 4% impairment rating to the body as a whole.  In addition to claimant’s \nsalary, she was provided room and board by the respondent employer valued at $1000 \nper week.  The claimant’s average weekly wage was $1329.21.  After being released at \nmaximum  medical  improvement,  the  claimant  was  not  rehired  by  the  respondent \nemployer, and has not been able to find suitable employment at the level of pay she was \nreceiving at the time of the injury, thus suffering wage loss.   \nThe respondents contend claimant was paid properly for the amount of time she \nwas off work.  The claimant is a seasonal worker, working at a horse ranch.  The time \nclaimed for temporary total disability is off season time. \n From a review of the record as a whole, to include medical reports, documents, \n\nMonger – H302489 \n \n3 \n \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \nconducted on  June 5, 2024 and contained in a pre-hearing order filed that same date are \nhereby accepted as fact. \n 2.     Claimant earned an average weekly wage of $479.00 which would entitle \nher  to  compensation  at  the  rates  of  $319.00  per  week  for  total  disability  benefits  and \n$239.00 per week for permanent partial disability benefits. \n 3. Claimant has failed to prove by a preponderance of the evidence that she \nis  entitled  to  temporary  total  disability  benefits  from  August  27,  2022  through  April  18, \n2023 or from August 24, 2023 through October 11, 2023. \n 4. Claimant has failed to prove by a preponderance of the evidence that she \nis  entitled  to  any  permanent  partial  disability  benefits,  either  in  the  form  of  permanent \nimpairment or wage loss, as a result of her compensable injury. \n 5.      To the extent that respondent paid claimant compensation benefits at a rate \nless than the average weekly wage of $479.00, respondent has controverted claimant’s \nentitlement to that difference and is liable for payment of an attorney fee. \n \n \n FACTUAL BACKGROUND \n Respondent is a ranch in Newton County that has thirteen guest cabins for rent.   \n\nMonger – H302489 \n \n4 \n \nDuring the “all-inclusive” season guests are charged approximately $1245.00 - $1325.00 \nper adult for a cabin.  In addition to the accommodations, all meals and activities were \nincluded.  The all-inclusive season begins the first Monday in March and concludes the \nlast Saturday in October.  The “off-season” begins after the last Saturday in October.  \nDuring he off-season, the cabins were rented to guests at the rate of $115.00 per night \nfor a small cabin and $135.00 per night for a larger cabin.  During the off-season, meals \nand activities were not included for the guests. \n Claimant is a 23-year-old woman who began working for respondent in July 2021.  \nShe was employed as a “wrangler” who was responsible for catching, saddling, preparing, \nand feeding horses.  She also led guests on trail rides.  She was paid $12.00 an hour and \nwas also provided meals and lodging. \n The parties have stipulated that claimant suffered a compensable injury to her right \nshoulder and head on June 14, 2022 when she was thrown from her horse. She received \nmedical  treatment  from  Dr.  Christopher  Gilbert who diagnosed claimant  with a  closed \nhead  injury (concussion) and  a  right  shoulder  strain.    She  was  given  a  sling  to  wear; \nmedication;  and  instructed  to  receive  follow-up  orthopedic  care  from  Dr.  Justin  Cutler.  \nShe was also released to return to work with restrictions. \n Claimant was evaluated by Dr. Cutler on June 29, 2022, and assessed with right \nshoulder contusion bursitis.  Dr. Cutler gave claimant a steroid injection and released her \nto return to work with restrictions.  When claimant’s condition did not improve, he ordered \nphysical therapy and continued the work restrictions. \n At some point claimant came under the care of Dr. Saunders, orthopedic surgeon, \nwho ordered an MRI arthrogram of the right shoulder.  Although the MRI of February 8, \n\nMonger – H302489 \n \n5 \n \n2023 was interpreted as unremarkable, Dr. Saunders indicated in his report of February \n20, 2023, that in his opinion “there is an irregularity along the anterior inferior capsular \nlabral junction.”  As a result, he recommended a diagnostic arthroscopic procedure which \nwas performed by him on April 7, 2023.  The Post-Op Diagnosis states: \n \n1. R shoulder posterior-superior labral tear without  \nevidence of capsular avulsion with associated synovitis. \n2.  R shoulder posttraumatic bursitis with rotator cuff \ntendinosis.   \n \n \n The  operative  report  indicates  that  Dr.  Saunders  performed  a  debridement  and \nsubacromial bursectomy.  Following this surgery, Dr. Saunders took claimant work and \nordered physical therapy.  His reports indicate that claimant was pleased with the results \nof the surgery and in a report dated October 11, 2023, he stated that claimant had reached \nmaximum medical improvement and could return to work. \n Respondent  paid  claimant  some  compensation  benefits  for  her  compensable \ninjury.  Claimant has filed this claim contending that she is entitled to payment of additional \ntemporary total disability benefits from October 27, 2022 through April 18, 2023, and from \nAugust 24, 2023 through October 11, 2023.  She also requests payment of permanent \npartial disability benefits based on a 4% rating to the body as a whole; benefits for wage \nloss; and computation of her compensation rate. \n \nADJUDICATION \n The first issue for consideration involves claimant’s average weekly wage and \ncompensation rates.  The parties agree that claimant’s average weekly should consist of \n\nMonger – H302489 \n \n6 \n \nthe wages paid to her as well as the value of the housing and meals provided.  However, \nthe parties are not in agreement as to any of the calculations.   A.C.A. §11-9-518(c) states \nthat  in  exceptional  circumstances  the  Commission  may  determine  the  average weekly \nwage  that  is  just  and  fair  to  all  parties  concerned.    Furthermore,  A.C.A.  §11-9-102(19) \ndefines “wages” as: \n  The money rate at which the service rendered is \n  recompensed under the contract of hire enforced \n  at the time of the accident, including the reasonable \n  value of board, rent, housing, lodging, or other similar \n  advantage received from the employer. \n \n \n Prior to discussing the calculation of the claimant’s average weekly wage, it is first \nnecessary to discuss the working relationship between employees such as claimant and \nthe  respondent.    As  previously  noted,  respondent’s operation included an  all-inclusive \nseason  and  an  off-season.    Testifying  at  the  hearing  was  Barry  Johnson  who  was  the \nowner/operator of respondent during the period of time claimant worked there.  Johnson \ntestified that employees such as claimant generally did not work during the off-season.  \nHowever,  if  the  employee  was  going  to  be  invited  back  to  work  the  next  all-inclusive \nseason, they were given the opportunity to remain in their lodging and live at the ranch \nduring the off-season.  While they were not required to perform any job duties during this \nperiod of time, they would sometimes be offered an odd job for which they would be paid \nan agreed upon amount.  Johnson stated that he would consider them to be “inactive” \nemployees.   \n   \n  Q Let me clarify again.  The people that you invited  \n  and allowed to stay at the ranch in the off-season, you did \n  not consider employees? \n\nMonger – H302489 \n \n7 \n \n \n  A Sometimes they were.  Sometimes they worked but \n  they were off-season employees.  If they weren’t employees, \n  they wouldn’t be staying there because they wouldn’t be \n  starting anew when a new season started.  I would probably \n  consider them as inactive employees.  I’m not sure how to \n  describe that.  I know it’s a little unique to our industry. \n \n      *** \n  Q So they were inactive, and you didn’t make them do  \n  any work, but  you gave them opportunities to make a little \n  spot work here and there? \n \n  A Sure. \n \n \n During the all-inclusive season claimant and other employees were permitted to \neat the same meals provided to the paying guests at the ranch.  Johnson testified that the \nmeals were served buffet style and breakfast typically included bacon, eggs, pancakes, \nfruit, yogurt, etc.  Lunch would consist of burgers, fries, soups, salads, and pizza.  Dinner \nwas generally nicer with food including barbeque, pork tenderloin, and steak on Saturday \nnight.    During  the  off-season meals were not provided, but the ranch’s kitchen  was \nstocked and the “inactive” employees were free to fix food for themselves.   \n Claimant  and  other  employees  were  also  allowed  to  stay  rent  free  in  selected \ncabins.    As  previously  noted,  employees  who  were  invited  back  to  work  the  next  all-\ninclusive season were permitted to stay in their cabins during the off-season.  During the \noff-season of 2021-2022, claimant chose to stay in her cabin at the ranch. \n The initial portion of the average weekly wage to be calculated is claimant’s actual \nmoney wages earned while employed by respondent.  Claimant submitted into evidence \nas Claimant’s Exhibit 3 a wage statement setting out the money wages paid from July 25, \n2021  through  June  11,  2022.    Claimant  contends  that  since  she  was  considered  an \n\nMonger – H302489 \n \n8 \n \ninactive  employee  by  respondent  during  the  offseason  period  from  November  2021 \nthrough March 2022 her average weekly wage should be calculated using only the wages \nearned beginning in March 2022. \n I do not agree with this contention.  The wage statement indicates that during the \noffseason claimant was paid for odd jobs she performed between November 2021 and \nMarch  2022.    In  fact,  the  wage  statement  shows  that  claimant  earned  wages  twelve \ndifferent weeks during the offseason.  I see no reason to ignore these wages during this \nperiod of time.  The fact that claimant did not perform her regular job duties during the \noffseason does not change the fact that she still performed work for wages during this \nperiod of time.   \n The wage statement reflects a period of 47 weeks between July 25, 2021 and June \n11, 2022.  I find that claimant’s money wages should include the 39 weeks during that \nperiod of time she was paid money wages by respondent.  During this period claimant \nwas  paid  a  total  of  $12,810.92.    Dividing  these  total  wages  by  39  weeks  results  in  an \naverage weekly money wage of $329.00.   \n Turning now to the value of the lodging and food portion of claimant’s wages, I \nnote that claimant relies on her testimony and the testimony from Johnson that the cabin \nprovided to claimant is better than a dorm room.  Claimant then cites the cost of dorm \nrooms at the University of Arkansas – Fayetteville as evidence that the value of her cabin \nis greater than a dorm room at the University.  I do not find a dorm room at the University \nof Arkansas to be comparable in value to a room located on a ranch in Newton County. \n Claimant  also  testified  that  she  considered  her  cabin  to  be  similar  to  the  guest \ncabins.  Therefore, she contends that the value of her cabin would be similar to the value \n\nMonger – H302489 \n \n9 \n \ncharged to a guest.  Claimant introduced into evidence photos of two cabins; however, \nboth of those cabins are guest cabins, not the cabin in which claimant lived.  According \nto the testimony of Johnson, claimant stayed in two different areas.  He testified that the \ncabin she stayed in was smaller than the smallest guest cabin and that it was originally a \nportable building that had 2 x 4 walls and had been covered with cedar siding.  He also \ntestified that the guest cabins had much nicer levels of finish. \n  Q Did they have different levels of finishes? \n \n  A They did.   The cabins were furnished well for guests, \n  Western motifs, fully furnished, linens, towels, and things like \n  that. \n \n  Q What about countertop levels and the quality of the \n  bathroom; any difference there? \n \n  A Yes, the cabins had, you know, granite countertops \n  and Dane’s was just a formica, Home Depot countertop, if \n  I remember. \n \n \n Johnson also testified that the first cabin claimant lived in was in the lower level of \na barn. \n  It was built for staff housing.  It’s in a lower level of the \n  barn, and there’s a girls’ side and a boys’ side, and they \n  share a common kitchen area.  So there was bunkbeds \n  in each side for staff, and then they had their bathroom  \nand then shared a kitchen area. \n \n \n Finally, Johnson testified that he placed the value of the cabin provided to claimant \nat $300.00 per month.   \n  Q How did you come to that number? \n \n  A We never claimed it as an expense, so we were \n  estimating what shared accommodations, or the level of \n\nMonger – H302489 \n \n10 \n \n  trim, or quality of the combinations would be in our area. \n \n  Q Did you in your mind compare it to a dorm room? \n \n  A No. \n \n  Q Did you tell me yesterday that you kind of thought \n  of it as a dorm room? \n \n  A Oh, it is.  It’s a bunkhouse in Newton County, Arkansas, \n  but it’s not a dorm room in Fayetteville, Arkansas. \n \n \n Claimant  submitted  into  evidence  a  video  of  her  cabin.    After  my  review  of  that \nvideo as well as the pictures from the guest cabins, I do not find that the cabin provided \nto claimant was compatible with the guest cabins.  The video and pictures clearly indicate \nthat  the  cabins  provided  to  the  guests  have  significantly  better  finishes  and  are  much \nnicer than the cabin shown on the video.  Accordingly, I do not find that the cabin provided \nto claimant was the equivalent of or comparable to the guest cabins on the ranch. \n Based upon the evidence presented, I do not find the cabin provided to claimant \non a ranch in Newton County to be comparable to the value of a dorm room on the campus \nof the University of Arkansas.  I also do not find it to be comparable in value to the amount \ncharged for guest cabins.  According to Johnson the first place that claimant was provided \nwas in the lower level of a barn.  As for the second cabin, it was originally a portable shed \nthat had been covered with cedar siding.  The finish of claimant’s cabin was not equivalent \nto the finish and furnishings of the guest cabins.  I find that the value of the cabin was \nequal  to  $300.00  as  testified  to  by  Johnson.    He  testified  that  he  arrived  at  that  value \nbased upon various factors such as shared accommodations, the level of trim, and the \nquality of other housing available in their area.   \n\nMonger – H302489 \n \n11 \n \n I also find the value of the food provided to claimant to be $300.00 per month based \non the testimony of Johnson.  Johnson testified as follows: \n  Q And how did you calculate, or estimate, or come to \n  that number? \n \n  A Strictly on a cost basis.  So, a lot of the employees, \n  though they were offered, did not participate in meals.  A lot \n  of times they would skip meals or not take advantage of that \n  benefit.  They were guested out and then would just disappear \n  during meal times.  So we figured it on a cost basis because \n  the cook was already there, the kitchen was already there, we \n  were already providing food for the guests, so the only cost we \n  were incurring was the flour, eggs, and whatever it took to cook \n  the meal. \n \n \n I find his testimony to be credible and entitled to great weight.  It might be argued \nthat the value of the lodging and meals provided to claimant is greater than the $600.00 \nper month testified to by Johnson.  However, for reasons previously discussed, I do not \nfind comparisons to dorm rooms at the University of Arkansas to be comparable.  Nor do \nI find the lower level of a barn or a former portable building to be equivalent to the guest \ncabins  located on  the ranch.    Any determination  in  the  value  of  the lodging and meals \nprovided  to  claimant  must  be  based  upon  the  evidence  presented  at  the  hearing.    A \nfinding that the value of lodging or food is actually $800.00 per month for example would \nrequire speculation and conjecture since there is no evidence offered to that effect at the \nhearing.  Speculation and conjecture are not to be substituted for credible evidence by \nthe Commission.  Dena Construction Company v. Herndon, 264 Ark. 791, 575 S.W. 2d \n155 (1979). \n Based on a finding that the value of lodging ($300.00) and food ($300.00) equals \n$600.00 per month or $150.00 per week combined with her money wages of $329.00 per \n\nMonger – H302489 \n \n12 \n \nweek,  I  find  that  claimant’s  average  weekly  wage  equals  $479.00.    This  results  in \ncompensation  rates  of  $319.00  for  total  disability  and  $239.00  for  permanent  partial \ndisability benefits. \n The  next  issue  for  consideration  involves  claimant’s  request  for  payment  of \ntemporary total disability benefits from October 27, 2022 through April 18, 2023, and from \nAugust 24, 2023 through October 11, 2023.  Claimant’s injury is an unscheduled injury.  \nIn  order  to  be  entitled  to  temporary  total  disability  benefits  for  an  unscheduled  injury, \nclaimant has the burden of proving by a preponderance of the evidence that she remained \nwithin her healing period and that she suffered a total incapacity to earn wages.  Arkansas \nState  Highway  &  Transportation  Dept.  v.  Breshears,  272  Ark.  244,  613  S.W.  2d  392 \n(1981).  \n Even  assuming  that  claimant  remained  within  her  healing  period  during  the \nrequested  periods,  I  find  that  claimant  has  failed  to  meet  her  burden  of  proving  by  a \npreponderance of the evidence that she suffered a total incapacity to earn wages.  When \nclaimant initially sought medical treatment after her compensable injury, she was returned \nto work with work restrictions.  Claimant acknowledged that after her injury she returned \nto work for respondent and continued to work there until October 27, 2022, at which time \nthe all-inclusive season ended and claimant was informed that she would not be invited \nback to work during the all-inclusive season in 2023. \n On direct examination claimant testified that after she was let go by the respondent \nat the end of October she did not receive any workers’ compensation benefits until after \nher  surgery  in  April.    In  fact,  claimant  testified  that  she  did  not  receive  any  type  of \ncompensation from October 27, 2022 until the date of the surgery on April 18, 2023.  [The \n\nMonger – H302489 \n \n13 \n \nactual date  of  the  surgery  was  April  8,  not  April  18.]    In  reality,  while  claimant  did  not \nreceive workers’ compensation benefits during this period of time, she returned to work \nfor other employers and made more in average weekly wage than she was earning for \nthe respondent. \n  Q So you went without any type of compensation \n  from October 27\nth\n until – and I think we’ve got it here \n  exactly in the pleadings – April the 18\nth\n of 2023? \n \n  A Yeah, so I made nothing then. \n \n  Q During this period of time, did you try being a \n  Door Dash deliverer? \n \n  A Yes. \n \n  Q Did that work out? \n \n  A Not really, no. \n \n  Q The cost of the car and gasoline, was it worth it? \n \n  A No. \n \n  Q Did you have a friend of the family who needed a \n  sitter? \n \n  A Yes. \n \n  Q Did you do that? \n \n  A Yes. \n \n  Q  And how much were you paid per month? \n \n  A I was paid 2,000 per month, so it was $500 a week. \n \n      *** \n \n  Q After leaving in October 27\nth\n, 2022, did you move  \n  back to Kansas? \n \n\nMonger – H302489 \n \n14 \n \n  A Yes. \n \n  Q And then you started working for the Richard Laptad; \n  is that correct? \n \n  A Correct. \n \n  Q He is an elderly man, I think you described as being \n  in his 90s; is that correct? \n \n  A Yes. \n \n  Q And so you took care of him, offered him services \n  to live and get around the house; is that correct? \n \n  A Right, yeah. \n \n  Q And then you were paid $500 per week by Richard \n  Laptad; is that correct? \n \n  A Correct. \n \n  Q And that was for the period of time you worked for \n  him all the way up until your surgery on April 18\nth\n of 2023; \n  is that correct? \n \n  A Correct. \n \n \nThus,  in  the period  from  October  7,  2022  until  her  surgery on April  8,  2023,  the \nclaimant earned $500.00 per week as a sitter for an elderly gentleman.  This is more than \nshe  was  earning  as  an  average  weekly  wage  for  the  respondent.    Based  upon  this \nevidence  as  well  as  the  remaining  evidence  presented  in  this  case,  I  do  not  find  that \nclaimant  suffered  a  total  incapacity  to  earn  wages  between  October  27,  2022  and  the \ndate of her surgery on April 8, 2023. \nPayment records submitted into evidence by the respondent show that respondent \npaid claimant temporary total disability benefits beginning April 10, 2023 and continuing \n\nMonger – H302489 \n \n15 \n \nthrough August 27, 2023.  The medical evidence also indicates that Dr. Saunders opined \nthat  claimant  had  reached  maximum  medical  improvement  as  of  October  11,  2023.  \nClaimant  contends  that  she  is  entitled  to  temporary  total  disability  benefits  beginning \nAugust 24, 2023, and continuing through October 11, 2023.   \n Again, even assuming that the claimant remained within her healing period during \nthat period of time, I do not find that claimant suffered a total incapacity to earn wages.  \nAgain, claimant returned to work for other employers making an average weekly wage in \nexcess  of  the  average  weekly  wage  she  was  earning  for  respondent.    On  cross \nexamination, she testified that she returned to work as a sitter for Richard Laptad some \ntwo to three weeks after her surgery: \n  Q You took about two to three weeks off after \n  surgery; is that correct? \n \n  A Yes, roughly. \n \n  Q And then you began working for Richard Laptad, \n  again in the same capacity; is that correct? \n \n  A Yes. \n \n  Q Did you get paid the same, $500 per week? \n \n  A Yes. \n \n  Q  You worked for him all the way up until February \n  of 2024; is that correct? \n \n  A Yes. \n \n \n Accordingly,  I  find  that  claimant  has  failed  to  prove  by  a  preponderance  of  the \nevidence that she suffered a total incapacity to earn wages from August 24, 2023 through \nOctober 11, 2023.   \n\nMonger – H302489 \n \n16 \n \n The next issue for consideration involves claimant’s contention that she is entitled \nto permanent partial disability benefits  based on a 4% impairment rating and wage loss.  \nWith respect to the impairment rating, I note that Dr. Saunders did not assign the claimant \na  permanent  physical  impairment  rating.    However,  in  his  report  of  October  11,  2023, \nfinding that claimant had reached maximum medical improvement, Dr. Saunders did note \nvarious measurements regarding claimant’s right shoulder.  Page 59 of Claimant’s Exhibit \n1  is  an  effort  by  claimant  to  convert  those  measurements  into  an  impairment  rating \npursuant  to  the AMA  Guides,  Fourth  Edition.    The  parties  agree  that  the  handwritten \nportion  of  Page  59  is  not  from  Dr.  Saunders  or  anyone  in  his  office,  but  rather  was \ncalculated by Attorney Wren’s brother.  Apparently, claimant contends that the figures \nlisted  under  “PROM”  constitute  passive  range  of  motion  findings  which  result  in \npermanent impairment.  With respect to this issue, I find after reviewing the appropriate \nAMA Guides that it is impossible to translate these figures into an accurate impairment \nrating,  assuming  that  one  is  applicable.    The  measurement  categories  set  out  by  Dr. \nSaunders in his report of October 11, 2023, do not match the measurement categories \nset forth in the AMA Guides at Figures 38 and 41, which are cited by claimant.  In fact, I \nnote that even claimant questions whether Figure 41 is appropriate in response to one of \nthe measurements.  In short, claimant has the burden of proving by a preponderance of \nthe  evidence  that  she  has  a  permanent  physical  impairment  as  a  result  of  her \ncompensable injury.  I simply find based upon the evidence presented that claimant has \nfailed to meet that burden of proof. \n Having failed to prove by a preponderance of the evidence that she suffered any \npermanent  physical  impairment  as  a  result  of  her  compensable  injury,  claimant  is  not \n\nMonger – H302489 \n \n17 \n \nentitled to benefits for wage loss.  However, even if one were to find that claimant had \nsuffered a permanent physical impairment as a result of her compensable injury, I would \nnevertheless find that she has failed to prove that she has suffered a loss in wage earning \ncapacity as a result of her compensable injury.  As previously noted, claimant earned an \naverage weekly wage of $479.00.  Following her surgery, claimant returned to work as a \nsitter and earned $500.00 per week, which is more than her average weekly wage with \nthe respondent.  After performing that job for a period of time following her surgery the \nclaimant then began working as a waitress in Oklahoma.  According to her testimony, she \nmade  approximately  $2000.00  per  month  or  $500.00  per  week,  again  more  than  the \naverage weekly wage she was earning with the respondent.  At the time of the hearing \nthe claimant was employed at a feed yard in Oklahoma and was making $14.00 an hour.  \nClaimant  testified  that  she  made  $560.00  per  week  which  again  is  in excess  of  the \naverage weekly wage she was earning for the respondent.   \n Furthermore, with respect to this issue, I note that Dr. Saunders placed no physical \nrestrictions on the claimant’s ability to return to work.   \n Accordingly, for the foregoing reasons, I find that claimant has failed to meet her \nburden  of  proving  by  a  preponderance  of  the  evidence  that  she  is  entitled  to  any \npermanent partial disability benefits as a result of her compensable injury. \n \nORDER \n Claimant earned an average weekly wage of $479.00 which would entitle her to \ncompensation  at  the  rates  of  $319.00  for  total  disability  benefits  and  $239.00  for \npermanent partial disability benefits.  Claimant has failed to prove by a preponderance of \n\nMonger – H302489 \n \n18 \n \nthe  evidence  that  she  is  entitled  to  temporary  total  disability  benefits  from  October  27, \n2022  through  April  18,  2023,  or  from  August  24,  2023  through  October  11,  2023.  \nClaimant has also failed to prove by a preponderance of the evidence that she is entitled \nto  payment  of  any  permanent  partial  disability  benefits  as a  result of  her  compensable \ninjury.  To the extent that respondent paid claimant temporary total disability benefits at a \nrate  less  than  the  average  weekly  wage  of  $479.00,  I  find  that  respondent  has \ncontroverted claimant’s entitlement to those benefits and is liable for an appropriate \nattorney’s fee. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an \nattorney fee in the amount of 25% of the compensation for indemnity benefits payable to \nthe claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon \nthe indemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-\nhalf by the claimant.    \nRespondent is responsible for payment of the court reporter’s charges for \npreparation of the hearing transcript in the amount of $608.00. \nIT IS SO ORDERED. \n \n      ________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":30707,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302489 DANE MONGER, Employee CLAIMANT HORSESHOE CANYON RANCH, Employer RESPONDENT BRIDGEFIELD CASUALTY/SUMMIT CONSULTING, RESPONDENT Carrier/TPA OPINION FILED OCTOBER 21, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washin...","outcome":"denied","outcomeKeywords":["granted:3","denied:4"],"injuryKeywords":["shoulder","concussion","strain","rotator cuff","back"],"fetchedAt":"2026-05-19T22:47:56.218Z"},{"id":"full_commission-H204851-2024-10-17","awccNumber":"H204851","decisionDate":"2024-10-17","decisionYear":2024,"opinionType":"full_commission","claimantName":"Janet Foster","employerName":"Goodwill Industries Of Arkansas","title":"FOSTER VS. GOODWILL INDUSTRIES OF ARKANSAS AWCC# H204851 October 17, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Foster_Janet_H204851_20241017.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Foster_Janet_H204851_20241017.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO. H204851 \n \nJANET FOSTER, \nEMPLOYEE \n \nCLAIMANT \nGOODWILL INDUSTRIES OF ARKANSAS,  \nEMPLOYER \n \nRESPONDENT \nATA WORKERS’ COMP SI TRUST, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED OCTOBER 17, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \n \n ORDER \n The respondents in the above-styled matter move to file a belated \nbrief.  After consideration of both parties’ pleadings, the Full Commission \ngrants the respondents’ motion.   \n An administrative law judge filed an opinion on May 15, 2024.  The \nadministrative law judge awarded medical treatment and a period of \ntemporary total disability benefits.  The respondents filed a timely notice of \nappeal, and the Clerk of the Commission corresponded with the parties \nregarding a briefing schedule. \n In their motion to file a belated brief, the respondents state, among \nother things, that their attorney was not sent a copy of the original briefing \n\nFOSTER - H204851  2\n  \n \n \nschedule.  The respondents request that a new briefing schedule be issued.  \nThe Full Commission therefore grants the respondents’ motion to file a \nbelated brief.  We direct the Clerk of the Commission to issue a final \nbriefing schedule for both parties, so that the case can be submitted to the \nFull Commission for a statutory de novo review.   \n IT IS SO ORDERED .  \n  \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1869,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204851 JANET FOSTER, EMPLOYEE CLAIMANT GOODWILL INDUSTRIES OF ARKANSAS, EMPLOYER RESPONDENT ATA WORKERS’ COMP SI TRUST, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 17, 2024","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.836Z"},{"id":"alj-H008231-2024-10-17","awccNumber":"H008231","decisionDate":"2024-10-17","decisionYear":2024,"opinionType":"alj","claimantName":"Keith Monroe","employerName":"Arkansas Department Of Correction","title":"MONROE VS. ARKANSAS DEPARTMENT OF CORRECTION AWCC# H008231 October 17, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MONROE_KEITH_H008231_20241017.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MONROE_KEITH_H008231_20241017.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H008231 \n \n \nKEITH MONROE, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nARKANSAS DEPARTMENT OF CORRECTION \n(BENTON WORK RELEASE),   \nEMPLOYER                                                                                                            RESPONDENT     \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA                                                                               RESPONDENT                                                                                  \n          \nOPINION FILED OCTOBER 17, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Pulaski County, Little Rock, \nArkansas. \n \nThe Claimant  represented  by  the  Honorable  Timothy  J.  Myers,  Attorney  at  Law,  Fayetteville, \nArkansas. Mr. Myers waived his appearance at the hearing. \n \nRespondents represented by the Honorable Charles H. McLemore, Attorney at Law, Little Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A  hearing  was  held  on October 16,  2024 ,  in  the  present  matter  pursuant  to Dillard  v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), to determine whether \nthe above-referenced matter should be dismissed for failure to prosecute under the provisions of \nArk. Code Ann. §11-9-702, and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \nThe record consists of the transcript of October 16, 2024, hearing and the documents held \ntherein.  Respondents’  Exhibit  1 consists of twelve (12) numbered   pages   of pleadings, \ncorrespondence, and various other forms related to this claim. \n\nMONROE-H008231 \n \n2 \n \n                                                                 Procedural History \n On October 6,  2022, the Claimant’s attorney filed with the Commission a claim for \nArkansas workers’ compensation benefits on behalf of the Claimant via a Form AR-C.  Per this \ndocument, the Claimant alleged that he sustained injuries to his back and hip during the course and \nin the scope of his employment with the respondent-employer, October 7, 2020.  The Claimant’s \nattorney  requested  initial  benefits  in  the  form  of  temporary  total  disability compensation, \npermanent  partial  disability benefits,  rehabilitation,  and  attorney’s  fees.    He  also  requested \nadditional  benefits, including  additional  temporary  total  disability,  additional  temporary  partial \ndisability,  additional  permanent  partial,  additional  medical  expenses,  rehabilitation,  and  an \nattorney’s fee. \n Per an email dated that same date, the Claimant’s attorney requested that a hearing be \nscheduled in this matter.  However, no further action was taken in this regard.  \n  The respondent-insurance-carrier filed a Form AR-2 with the Commission on November \n10, 2020.  Per this form, the Respondents accepted this claim to be compensable.   \n No hearing was scheduled.  Instead, the Claimant requested and was granted a change of \nphysician on March 2, 2023.  The Claimant’s attorney obtained a Change of Physician Order from \nthe Commission for the Claimant to change from treating with Dr. Victor Vargas to start treating \nwith Dr. Joel Smith.   \nSince this time, the Claimant has not attempted to pursue or otherwise resolve his claim.  \nNo subsequent bona fide request for a hearing has been made in the Claimant’s case since October \n6, 2022. \n   \n\nMONROE-H008231 \n \n3 \n \n On September 24, 2024, the Respondents filed a Respondents’ Motion to Dismiss for Want \nof  Prosecution,  with  the  Commission,  along  with a  Certificate  of  Service  to  the Claimant’s \nattorney.  \n The  Commission  sent  a letter to  the Claimant  and  his attorney on September  30,  2024, \ninforming Claimant of the Respondents’ motion, and a deadline of twenty (20) days, for filing a \nwritten response.  Said letter was mailed to the Claimant by both first-class and certified mail.  The \nletter sent by first-class mail has not been returned to the Commission. \nThe Claimant’s attorney sent an email to the Commission on October 8, 2024, stating, “We \nhave no objection to the Motion to Dismiss without prejudice.”         \n Pursuant to a Hearing Notice dated October 8, 2024, the Commission notified the parties \nthat the matter had been set for a hearing on the Respondents’ motion to dismiss.  Said hearing \nwas  scheduled  for October 16, 2024, at the Arkansas Workers’ Compensation Commission in \nLittle Rock, Arkansas. \nThe hearing was held as scheduled.  The Claimant’s attorney waived his appearance at the \nhearing, and the Claimant did not appear at the hearing.  The Respondents’ counsel argued that the \nClaimant has failed to prosecute his claim for workers’ compensation benefits.  He further noted \nthat the Claimant has not taken any affirmative action to prosecute his claim in more than six (6) \nmonths.  More specifically, Respondents’ counsel noted that the Claimant has not taken any action \nto advance his claim since the filing of the Form AR-C, which was done more than two (2) years \nago.   \nTherefore, the Respondents’ attorney moved that this claim be dismissed pursuant to Ark. \nCode Ann. §11-9-702, and/or Commission Rule 099.13 with or without prejudice on this claim for \nboth initial and additional workers’ compensation benefits.   \n\nMONROE-H008231 \n \n4 \n \nAdjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in the  \nRespondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4):  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed  with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \nrequested a hearing or otherwise made any effort to prosecute his claim for workers’ compensation \nbenefits since the filing of the Form AR-C, over two years ago; and nor has he resisted the motion \n\nMONROE-H008231 \n \n5 \n \nfor dismissal.  In fact, the Claimant’s attorney has notified the Commission in writing that he does \nnot object to this claim being dismissed without prejudice.   \nHere, the evidence preponderates that the Claimant has failed to prosecute this claim for \nworkers’ compensation benefits.  Moreover, I am convinced that the Claimant has abandoned this \nclaim.   \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that the Respondents’ \nmotion  to dismiss for  a  lack  of  prosecution to  be  well  taken.  I thus find  that  pursuant  to the \nprovisions of Ark. Code Ann.§11-9-702, and Commission Rule  099.13,  this  claim for workers’ \ncompensation benefits should be dismissed without prejudice to the refiling within the limitation \nperiod specified under the Arkansas Workers’ Compensation Act (the “Act”). \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704. \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since his attorney filed the Form \nAR-C, which was done two years ago.  Hence, the evidence preponderates \nthat   the   Claimant   has   failed   to   prosecute   his claim  for  workers’ \ncompensation benefits based upon the relevant statutory provisions of Ark. \nCode Ann. 11-9-702, and Rule 099.13 of this Commission.       \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for lack of  prosecution  is \nhereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \n\nMONROE-H008231 \n \n6 \n \n                                                           ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for workers’ compensation benefits.  This dismissal is per Ark. Code Ann. \n§11-9-702, and Commission Rule 099.13, without prejudice to the refiling  \nof this claim within the limitation period specified under the Act. \n          IT IS SO ORDERED. \n \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":10659,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H008231 KEITH MONROE, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTION (BENTON WORK RELEASE), EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 17, 2024 Hearing held before Administrative Law Jud...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["back","hip"],"fetchedAt":"2026-05-19T22:47:45.638Z"},{"id":"alj-H307000-2024-10-17","awccNumber":"H307000","decisionDate":"2024-10-17","decisionYear":2024,"opinionType":"alj","claimantName":"Taylor Wallis","employerName":"Bapa Harrison Inc","title":"WALLIS VS. BAPA HARRISON INC. AWCC# H307000 October 17, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WALLIS_TAYLOR_H307000_20241017.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALLIS_TAYLOR_H307000_20241017.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H307000 \n \nTAYLOR S. WALLIS, EMPLOYEE CLAIMANT \n \nBAPA HARRISON INC., EMPLOYER RESPONDENT \n \nTHE HARTFORD, CARRIER RESPONDENT \n \n OPINION FILED OCTOBER 17, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by MARK ALAN PEOPLES, Attorney, Little Rock, Arkansas. \n \nRespondents represented by RANDY P. MURPHY, Attorney, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \nClaimant  filed  a  claim  for  workers'  compensation  benefits  for  an  injury  that  she  alleged \noccurred on October 20, 2023.  Respondents accepted this claim as it related to her right hand and \nright arm, but denied any benefits were due to claimant for an alleged right shoulder injury.    \n       On October 4, 2024, the above captioned claim came on for a hearing at Springdale, Arkansas, \nwith the sole purpose of determining whether Ambetter is entitled to a subrogation lien in this matter \nunder Ark. Code Ann. § 11-9-411. Ambetter is claimant’s private health insurance carrier.  Counsel \nfor both parties appeared; claimant was excused by this court from this hearing.  The parties produced \nletters  which  notified  Ambetter  that  a  settlement  of  this  claim  had  been  reached  and  asked  that \nAmbetter advise if it has made any payments toward claimant’s medical bills for treatment to her \nshoulder injury.  Respondent represented that he had no response to his inquiries.   On August 15, \n2024, claimant’s  attorney  advised  that  on August  15,  2024,  he  spoke  with  Brandon  Dale,  a \nrepresentative of Rawlings which administers claims for Ambetter.  Counsel explained that because \nrespondent  controverted  the  right  shoulder  portion  of  this  claim,  his  client  submitted  a  claim  to \n\nDelgado-H010070 \n2 \n \n \nAmbetter.  Claimant’s counsel heard nothing further from Ambetter or Rawlings.   \n     The parties advised that neither attorney had received a notice of lien from Ambetter.  Despite \nthat lack of a lien being submitted to the parties, the parties and Ambetter were given notice of this \nhearing by certified mail, return receipt requested.  U.S. Post Office records indicate that the  notice \nwas signed for on August 16, 2024.  Both the claimant and the respondents were present at the hearing; \nhowever, no representative appeared for Ambetter. This matter has been controverted in its entirety \nby the respondents. No benefits have been paid of any kind and medical treatment was and has been \ndenied by the respondents. After my consideration of this matter, I find the right shoulder injury has \nnot been adjudicated as being work-related, and no lien has been submitted by Ambetter. As such, no \npotential  subrogation  lien  exists  in  the  current  matter  and  this  claim  is  released  from  any  type  of \nsubrogation from Ambetter. \nFINDINGS OF FACT & CONCLUSIONS OF LAW \nThe parties have shown there is no notice of a lien provided to the parties, and any medical \nexpense for the claimant’s right shoulder injury has not been determined to be due to a work-related \nincident.  As such, there is no subrogation lien in this matter. \nORDER \nAmbetter is not entitled to a subrogation lien pursuant to Ark. Code. Ann. §11-9-411 for any \npayments it has made for medical treatment to claimant’s right shoulder.   \n IT IS SO ORDERED. \n \n                                                                                      \n            JOSEPH C. SELF \n                                                                       ADMINISTRATIVE LAW JUDGE","textLength":3637,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H307000 TAYLOR S. WALLIS, EMPLOYEE CLAIMANT BAPA HARRISON INC., EMPLOYER RESPONDENT THE HARTFORD, CARRIER RESPONDENT OPINION FILED OCTOBER 17, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas. Claimant r...","outcome":"denied","outcomeKeywords":["granted:2","denied:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:47:47.705Z"},{"id":"full_commission-G600552-2024-10-16","awccNumber":"G600552","decisionDate":"2024-10-16","decisionYear":2024,"opinionType":"full_commission","claimantName":"Tammy Miller","employerName":"Mhm Support Services","title":"MILLER VS. MHM SUPPORT SERVICES AWCC# G600552 October 16, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Miller_Tammy_G600552_20241016.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Miller_Tammy_G600552_20241016.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G600552 \nTAMMY MILLER, EMPLOYEE      CLAIMANT \nMHM SUPPORT SERVICES,  \nEMPLOYER                                 RESPONDENT #1 \n \nMERCY HEALTH, \nINSURANCE CARRIER/TPA    RESPONDENT #1 \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND    RESPONDENT #2 \n \n \nOPINION FILED OCTOBER 16, 2024 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant  represented  by  the  HONORABLE EDDIE  H.  WALKER,  JR., \nAttorney, Fort Smith, Arkansas.  \nRespondent #1 represented  by  the  HONORABLE RANDY  P.  MURPHY, \nAttorney, Little Rock, Arkansas.  \nRespondent #2 represented by the HONORABLE DAVID L. PAKE, Attorney, \nLittle Rock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Respondent appeals an opinion and order of the Administrative Law \nJudge filed May 29, 2024.  In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law:  \n\n2 \nMILLER – G600552 \n1. The stipulations agreed to by the parties at a \npre-hearing conference conducted on \nSeptember 27, 2023, and contained in a pre-\nhearing order filed that same date are hereby \naccepted as fact.  \n \n2. Claimant has met her burden of proving by a \npreponderance of the evidence that she has \nsuffered a permanent physical impairment rating \nin an amount equal to 30% to the body as a \nwhole for her compensable left hip injury.  \n \n3. Claimant has met her burden of proving by a \npreponderance of the evidence that she has \nsuffered a permanent impairment in an amount \nequal to 5% to the body as a whole as a result of \nher compensable pelvic floor dysfunction.  \n \n4. Claimant has met her burden of proving by a \npreponderance of the evidence that she is \npermanently totally disabled as a result of her \ncompensable injury.  \n \n5. Respondent #1 has controverted Claimant’s \nentitlement to permanent total disability benefits.  \nWe have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s May 29, \n2024 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n\n3 \nMILLER – G600552 \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \nFor prevailing on this appeal before the Full Commission, Claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. §11-9-715 (Repl. 2012).  For prevailing on appeal to the Full \nCommission, the Claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b) (Repl. \n2012). \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \nI must respectfully dissent from the majority’s opinion finding the \nclaimant is entitled to a thirty percent (30%) impairment rating for her left hip \ninjury, an additional five percent (5%) impairment rating for her pelvic floor \ndysfunction and is permanently and totally disabled as a result of her \nJanuary 22, 2016 compensable injury. \n\n4 \nMILLER – G600552 \nThe claimant has undergone extensive treatment and multiple \nsurgeries resulting from that injury and reached maximum medical \nimprovement on June 30, 2019.  She received a fourteen percent (14%) \nwhole body impairment rating at that time as a result of her injuries to her \nback and SI joints.  \nThe claimant later contended that she was permanently and totally \ndisabled or entitled to wage loss benefits in excess of her impairment rating.  \nA hearing was held on January 13, 2021.  In an opinion dated \nFebruary 25, 2021, an administrative law judge determined that the \nclaimant was not permanently and totally disabled but awarded the claimant \nsixty percent (60%) wage-loss disability. \nThe claimant later sought additional wage-loss benefits or, \nalternatively, an award of permanent and total disability benefits.  A hearing \nwas held on May 8, 2024.   \nIn an order dated May 29, 2024, an administrative law judge ruled \nthat the claimant is entitled to an additional thirty percent (30%) impairment \nrating for her left hip injury and an additional five percent (5%) impairment \nfor pelvic floor dysfunction and is permanently totally disabled.  \nRespondents #1 have filed an appeal alleging res judicata, arguing \nthat the issue of wage loss disability has been fully adjudicated.  In addition, \nrespondents #1 are alleging on appeal the claimant has failed to show any \nmaterial change in her condition since the February 25, 2021 Opinion and is \n\n5 \nMILLER – G600552 \nnot permanently and totally disabled or entitled to any additional permanent \nimpairment. \nRes judicata applies where there has been a final adjudication on the \nmerits of the issue by a court of competent jurisdiction on all matters \nlitigated and those matters necessarily within the issue which might have \nbeen litigated.  Beliew v. Stuttgart Rice Mill, 64 Ark. App. 334, 987 S.W.2d \n281 (1998).  \nThe key question regarding the application of res judicata is whether \nthe party against whom the earlier decision is being asserted had a full and \nfair opportunity to litigate the issue in question.  Cater v. Cater, 311 Ark. \n627, 846 S.W.2d 173 (1993). Res judicata does not apply if a claimant has \nsustained a change in condition or seeks benefits for a subsequent period \nof complications.  Rothrock v. Advanced Envtl. Recycling, 2018 Ark. App. \n88, 544 S.W.3d 61 (2018).  \nBefore analyzing the claim under the doctrine of res judicata, the \nburden of proof rests with claimant to establish whether there had been \na change in his physical condition.  Id.   The issue-preclusion provision \nof res judicata is also referred to as collateral estoppel and will bar \nrelitigating  issues if the following requirements are met: “(1) the issue \nsought to be precluded must be the same as that involved in the prior \nlitigation; (2) the issue must have been actually litigated; (3) the issue must \nhave been determined by a valid and final judgment; and (4) the \n\n6 \nMILLER – G600552 \ndetermination must have been essential to the judgment.”  Id.  It is well \nsettled that res judicata applies to decisions of the Commission.  Craven v. \nFulton Sanitation Serv., 361 Ark. 390, 206 S.W.3d 842 (2005). \nFurther, our Rules require that a claimant’s petition for additional \nbenefits is barred by res judicata unless there is a significant new \ndevelopment to the claimant’s condition.  “Res judicata applies to the \nCommission decisions if the merits of the issue have already been subject \nto a full and fair hearing, unless there is evidence of a change following the \nprevious order.”  Shaver v. Ashley County Detention Center, 2015 Ark. App. \n151 (2015) (citing Beliew v. Stuttgart Rice Mill, 64 Ark. App. 334, 987 \nS.W.2d 281 (1998)).  \nIn Shaver, the Court stated that the Commission “found that res \njudicata barred Shaver's claim because he had already litigated the issue of \ntemporary-total-disability benefits and there had been no material change in \nhis condition since the first order,” stating: \n[g]iven our standard of review, the fact that \nShaver had previously been released to work \nand found to be at maximum medical \nimprovement, and the fact that Shaver failed to \nprove that his condition had changed since the \nprevious order, we must affirm the \nCommission's decision that Shaver failed to \nprove entitlement to additional temporary-total-\ndisability benefits. Id. \n \nA new diagnosis, without a material change of worsening symptoms, \ndoes not constitute a change of condition sufficient to overcome this bar. \n\n7 \nMILLER – G600552 \nSee e.g. Leonard v. Brookwood Nursing Ctr., 1997 Ark. App. LEXIS 744 \n(1997); Pursifull v. Wilkinson Transportation, Inc., 1986 Ark. App. LEXIS \n2357 (1986). \nIn this matter, the claimant reached maximum medical improvement \non June 30, 2019, and received a fourteen percent (14%) whole body \nimpairment rating.  The claimant later contended that she was permanently \nand totally disabled or that she was entitled to wage loss benefits in excess \nof her impairment rating.  \nIn an opinion dated February 25, 2021, an administrative law judge \ndetermined that the claimant was not permanently and totally disabled but \nawarded the claimant sixty percent (60%) in wage-loss disability.  \nThe claimant later sought additional wage-loss benefits or, \nalternatively, an award of permanent and total disability benefits.  These \nissues are res judicata, as the claimant has failed to show any material \nchange in her condition since the February 25, 2021 order. \nDr. Terry Sites, an orthopedic surgeon, also evaluated the claimant \nand testified that, “based upon objective evidence I would say there’s no \nreason why she can’t work as an RN.”  \nDr. Owen Kelly, an orthopedic surgeon, also opined that: \nI see no reason that this lady cannot slowly get \nback to work. It is my opinion that the best \nthing for the lady would be to try to get back to \nwork in a slow, progressive fashion. I see no \n\n8 \nMILLER – G600552 \nobjective findings that would warrant an \nimpairment rating. \n \n Dr. George Diemel of Arkansas Orthopedics concluded that there \nwere no objective findings to support the claimant’s ongoing complaints and \nDr. Mary Francis Daut suspected “secondary gain or workman’s comp as \nmotivating factor for [claimant’s] pain.”  \nDr. Casey Smith with Advanced Orthopedics of Tulsa evaluated the \nclaimant and testified in a deposition that the claimant’s complaints of pain \nwere not proportionate to his findings on examination.  \n As recently as July 26, 2023, Dr. Daut opined that the claimant’s pain \nis chronic: \nThe problem identified has been going on for \nyears.  It is chronic (expected to last one year \nor more) but stable (meeting treatment goals). \nThe patient’s treatment goals are to clean \nhouse, wash dishes without needing to take a \nbreak, and cook a meal without needing to sit \ndown.  For this problem, we have met \ntreatment goals. \n \nFurther, Dr. Daut opined that the claimant: \npresents for evaluation and management of \nchronic pain in the left hip.  It has been going \non for years.  It is chronic (expected to last one \nyear or more) but stable (meeting treatment \ngoals.)  Her treatment goals are to \nwalking/exercise and Improved mobility.  For \nthis problem, we have met treatment goals.  \n \n Despite this extensive history, the majority relies on Dr. Christopher \nDaugherty’s diagnosis of pelvic floor dysfunction, complex regional pain \n\n9 \nMILLER – G600552 \nsyndrome, and osteoarthritis in its ruling that the claimant is permanently \nand totally disabled; however, in his opinion, Dr. Dougherty indicated that \nphysical therapy had helped claimant’s condition a little, but she continued \nto have pain.  \nAn April 2023 bone scan was unremarkable—there were no \nobjective findings.  Dr. Dougherty released the claimant at maximum \nmedical improvement with a whole-body impairment rating of thirty percent \n(30%) on July 12, 2023, stating that the claimant’s impairment rating was \nlimited to her hip.  At his deposition, Dr. Dougherty admitted that the \nclaimant’s condition has “been stable for a long time.”  \n There has, however, been no decline in the claimant’s condition \nsince the 2021 hearing on these issues.  The claimant’s condition and its \ntreatment have not changed, only the name.  \nBy her own admission, the claimant has no upcoming appointments \nto continue treatment for her pelvic floor dysfunction and has reached MMI. \nThe only changes the claimant alleges are the result of pelvic floor \ndysfunction and alleged increased pain.  \nThe only evidence we have of any condition is the claimant’s own \nself-serving complaints of pain, which many of her doctors have \ndetermined to be exaggerated and out of proportion to the objective \nevidence. \n\n10 \nMILLER – G600552 \n Because the issue of permanency has been previously litigated in \nthis matter, and the claimant has failed to show a material change in her \nphysical condition, I find that these issues are barred by the doctrine of res \njudicata.  \n“‘Permanent total disability’ means inability, because of compensable \ninjury or occupational disease, to earn any meaningful wages in the same \nor other employment.”  Ark. Code Ann. § 11-9-519(e)(1).  \nThe employee bears the burden of proving the inability to earn any \nmeaningful wage in the same or other employment.  Ark. Code Ann. § 11-9-\n519(e)(2).  “In the absence of clear and convincing proof to the contrary, the \nloss of both hands, both arms, both legs, both eyes, or of any two (2) \nthereof shall constitute permanent total disability;” however, “[i]n all other \ncases, permanent total disability shall be determined in accordance with the \nfacts.”  Ark. Code Ann. § 11-9-519(b)-(c).  “Permanent benefits shall be \nawarded only upon a determination that the compensable injury was the \nmajor cause of the disability or impairment.”  Ark. Code Ann. § 11-9-\n102(4)(F)(ii)(a).  Arkansas Code Annotated § 11-9-102(4)(D) provides that a \ncompensable injury must be established by medical evidence supported by \n\"objective findings.\"  An objective finding is defined as a finding which \ncannot come under the voluntary control of the claimant.  Ark. Code Ann. § \n11-9-102(16)(A)(i). \n\n11 \nMILLER – G600552 \nThe same factors that are considered when analyzing wage loss \ndisability claims are usually considered when analyzing permanent and total \ndisability claims.  Maulding v. Price's Utility Contractors, 2009 Ark. App. \n776, 358 S.W.3d 915 (2009).  Those factors include the claimant’s age, \neducation, work experience, motivation, post-injury income, credibility, \ndemeanor, and any other matters reasonably expected to affect her future \nearning capacity.  Ark. Code Ann. § 11-9-522(b)(1); St. Vincent Health \nServs. v. Bishop, 2010 Ark. App. 141 (2010).  \nPermanent total disability as defined by our legislature makes no \nprovision for whether employment is available in any particular geographical \narea, but instead provides that a claimant must prove the inability to earn \nany meaningful wages because of the compensable injury.  See Ark. Code \nAnn. § 11-9-519(e)(1); Birtcher v. Mena Water Utils., 2017 Ark. App. 210, \n518 S.W.3d 707 (2017). \n As highlighted above, the claimant is capable of working sedentary \njobs.  The only limitations provided by Dr. Dougherty include lifting and \nambulation.  Dr. Daut opined that “the patient’s treatment goals are to \nclean house, wash dishes without needing to take a break, and cook a \nmeal without needing to sit down.  For this problem, we have met \ntreatment goals.”  Despite the claimant’s contentions, the evidence \nsupports the conclusion that she can work a sedentary, seated job. \n\n12 \nMILLER – G600552 \n The claimant is 51 years old and has years of employment \nexperience that would allow for her to obtain any number of sedentary \njobs.  Specifically, the claimant earned a degree in nursing, has experience \nworking for corporations such as performing demonstrations for Wal-Mart, \nand as a senior account manager for J.B. Hunt which was a sit-down desk \njob for three (3) years until she was fired for having an affair with a co-\nworker.  \nThe claimant is not inhibited in her ability to earn a livelihood.  She \nis simply motivated by the desire to not return to work as noted by Dr. Daut \nwho suspected “secondary gain or workman’s comp as motivating factor \nfor [claimant’s] pain.” \n This claimant is a prime candidate for vocational rehabilitation.  She \nis perfectly capable of returning to the job market as noted by many of her \ntreating physicians.  She simply chooses not to even try to return to work. \nThere are no findings, objective or otherwise, that would support the \ncontention that the claimant is unable to earn a meaningful wage. \nAccordingly, for the reasons set forth above, I must dissent. \n \n                                     _______________________________                                     \n                                     MICHAEL R. MAYTON, Commissioner","textLength":16647,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G600552 TAMMY MILLER, EMPLOYEE CLAIMANT MHM SUPPORT SERVICES, EMPLOYER RESPONDENT #1 MERCY HEALTH, INSURANCE CARRIER/TPA RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED OCTOBER 16, 2024 ...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["hip","back"],"fetchedAt":"2026-05-19T22:29:44.832Z"},{"id":"alj-H400749-2024-10-16","awccNumber":"H400749","decisionDate":"2024-10-16","decisionYear":2024,"opinionType":"alj","claimantName":"Bryan Hammock","employerName":"Prewett Enterprises, Inc","title":"HAMMOCK VS. PREWETT ENTERPRISES, INC. AWCC# H400749 October 16, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HAMMOCK_BRYAN_G_H400749_20241016.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HAMMOCK_BRYAN_G_H400749_20241016.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H400749 \n \nBRYAN G. HAMMOCK, EMPLOYEE       CLAIMANT \n \nPREWETT ENTERPRISES, INC., EMPLOYER          RESPONDENT \n \nLIBERTY INSURANCE CORP., CARRIER/TPA              RESPONDENT \n  \n \n \nOPINION FILED 16 OCTOBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 16 October 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nThe Ryburn Law Firm, Mr. Jason Ryburn, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 16 October 2024. This case relates to an alleged workplace injury, \nsustained on or about 19 January 2024. A First Report of Injury was filed by the \nrespondents on 22 January 2024, and a Form AR-2 was filed on 1 February 2024, noting a \nfinger injury and that the claimant tested positive for marijuana on the date of the injury. \nA Form AR-C was also filed on the claimant’s behalf on 1 February 2024. See Respondents’ \nExhibit No 1. \n On 20 August 2024, the Full Commission entered an Order granting a request from  \nthe claimant’s counsel to withdrawal from the matter. On 27 August 2024, the respondents \nrequested a dismissal of this matter for failure to prosecute the claim. Letters providing \nnotice of that motion and notice of the hearing were sent to the claimant, consistent with \nthe Commission’s practice. I noted at the hearing that mailings from the Commission to \n\nHAMMOCK-H400749 \n2 \n \nclaimants are sent via both First Class and Certified Mail with return receipts requested. \nReturned mail is regularly appended to the Commission’s file. The Commission’s file \nincludes a number of returned mailings sent to the address the claimant has maintained \nwith the Commission.  \nThe respondents appeared on 16 October 2024, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of their \nmotion. And the claimant did not appear at the hearing to resist the dismissal of this claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2902,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H400749 BRYAN G. HAMMOCK, EMPLOYEE CLAIMANT PREWETT ENTERPRISES, INC., EMPLOYER RESPONDENT LIBERTY INSURANCE CORP., CARRIER/TPA RESPONDENT OPINION FILED 16 OCTOBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judg...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:47:43.438Z"},{"id":"alj-H206196-2024-10-15","awccNumber":"H206196","decisionDate":"2024-10-15","decisionYear":2024,"opinionType":"alj","claimantName":"Michael Devries","employerName":"Siemens Smart Infrastructure","title":"DEVRIES VS. SIEMENS SMART INFRASTRUCTURE AWCC# H206196 October 15, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DEVRIES_MICHAEL_H206196_20241015.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DEVRIES_MICHAEL_H206196_20241015.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H206196 \n \nMICHAEL DEVRIES, EMPLOYEE     CLAIMANT \nSIEMENS SMART INFRASTRUCTURE, EMPLOYER  RESPONDENT \nTECHNOLOGY INSURACE COMPANY/ \nTRAVELERS INDEMNITY CO., CARRIER/TPA   RESPONDENT \n            \n \nOPINION FILED OCTOBER 17, 2024 \nHearing before Administrative Law Judge James D. Kennedy in Clinton, \nArkansas, on October 10, 2024. \nClaimant is pro se and appeared on his own behalf. \nRespondents are represented by their attorney, Guy Alton Wade, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above  styled  matter  on October  10, 2024, in Clinton, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 13 of the Workers’ Compensation Act.  A Form \nAR-C was filed on March 8, 2023, claiming the claimant had injured his left toe, left foot, \nand “other whole body.”  A First Report of Injury provided that the report was prepared on \nAugust  29,  2023. A Form AR- 2 provided  that  the  claimant  was  injured  on  August  17, \n2023, and the claim was accepted for the amputation of the great toe and a laceration to \nthe second toe. The claimant was originally represented by Laura Beth York, attorney at \nlaw, who was allowed to withdraw by an Order from the Full Commission, dated August \n7, 2024.    \n\nMichael Devries – AWCC H206196 \nA Motion to Dismiss the Claim was filed on or about August 20, 2024, by letter, \ncontending that the claimant had failed to request a hearing or pursue the matter further.  \nThe claimant failed to file any response to the Motion. Appropriate notice was received \nby the claimant, and he appeared on his own behalf. The claimant had not requested a \nhearing as of the date of the Motion to Dismiss hearing and had failed to pursue his claim \nwith more than six months passing from the filing of the original claim. The claimant stated \nhe  was  not  aware  of  any  additional  benefits  that  he was  entitled  to  and  really  had  no \nreason to object to the dismissal. At the time of the hearing, Guy Alton Wade appeared \non  behalf  of  the  Respondents and asked  that  the  matter  be  dismissed  for  lack  of \nprosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondent, as well as statements by the claimant, it is found that this matter should be \ndismissed without prejudice, for failure to prosecute pursuant to A.C.A. 11-9-702 and Rule \n099.13 of the Arkansas Workers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2934,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206196 MICHAEL DEVRIES, EMPLOYEE CLAIMANT SIEMENS SMART INFRASTRUCTURE, EMPLOYER RESPONDENT TECHNOLOGY INSURACE COMPANY/ TRAVELERS INDEMNITY CO., CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 17, 2024 Hearing before Administrative Law Judge James D. Kennedy...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:47:41.381Z"},{"id":"alj-H308126-2024-10-10","awccNumber":"H308126","decisionDate":"2024-10-10","decisionYear":2024,"opinionType":"alj","claimantName":"Eileen Montes","employerName":"Mo Go Logistics, LLC","title":"MONTES VS. MO GO LOGISTICS, LLC AWCC# H308126 October 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MONTES_EILEEN_H308126_20241010.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MONTES_EILEEN_H308126_20241010.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H308126 \n \nEILEEN MONTES, EMPLOYEE        CLAIMANT \n \nMO GO LOGISTICS, LLC, EMPLOYER           RESPONDENT \n \nLUBA CASUALTY INS. CO., CARRIER/TPA               RESPONDENT \n  \n \n \nOPINION FILED 10 OCTOBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 9 October 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nWorley, Wood & Parrish, PA, Mr. Jarrod Parrish, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 9 October 2024. This case relates to an alleged workplace injury, \nsustained on or about 30 November 2023. A First Report of Injury was filed by the \nrespondents on 15 December 2023, and A Form AR-2 was filed on 19 December 2023, \nnoting that the claim was under investigation for compensability. A Form AR-C was filed \non the claimant’s behalf on 28 December 2023. See Respondents’ Exhibit No 1. \n The claimant proceeded in this matter with counsel for some time, but on 7 August \n2024, the Full Commission entered an Order granting her counsel’s withdrawal from the \nmatter. On 22 August 2024, the respondents requested a dismissal of this matter for failure \nto prosecute the claim. Letters providing notice of that motion and notice of the hearing \nwere sent to the claimant, consistent with the Commission’s practice. I noted at the hearing \nthat mailings from the Commission to claimants are sent via both First Class and Certified \n\nMONTES- H308126 \n2 \n \nMail with return receipts requested. Returned mail is regularly appended to the \nCommission’s file. The Commission’s file does not include any responsive correspondence \nfrom the claimant, nor does it include any returned mailings. \nThe respondents appeared on 9 October 2024, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of their \nmotion. And the claimant did not appear at the hearing to resist the dismissal of this claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2905,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H308126 EILEEN MONTES, EMPLOYEE CLAIMANT MO GO LOGISTICS, LLC, EMPLOYER RESPONDENT LUBA CASUALTY INS. CO., CARRIER/TPA RESPONDENT OPINION FILED 10 OCTOBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge JayO. H...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:47:39.317Z"},{"id":"alj-H402239-2024-10-09","awccNumber":"H402239","decisionDate":"2024-10-09","decisionYear":2024,"opinionType":"alj","claimantName":"Heather Robbins","employerName":"Ouachita Enrichment Center, Inc","title":"ROBBINS VS. OUACHITA ENRICHMENT CENTER, INC. AWCC# H402239 October 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ROBBINS_HEATHER_H402239_10092024.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROBBINS_HEATHER_H402239_10092024.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        CLAIM NO.: H402239 \nHEATHER RENEE ROBBINS,   \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nOUACHITA ENRICHMENT CENTER, INC.,  \nEMPLOYER                                                                                                           RESPONDENT  \n \nACCIDENT FUND GENERAL INSURANCE COMPANY,              \nINSURANCE CARRIER                                                                                       RESPONDENT \n        \nOPINION FILED OCTOBER 9, 2024    \n \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n  \nThe Claimant, pro se, did not appear at the hearing. \n \nRespondents represented by the Honorable Karen H. McKinney, Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis matter comes before the Commission pursuant to the Motion to Dismiss filed by the \nRespondents.  A hearing on the motion was conducted on August 7, 2024, in El Dorado, Arkansas.  \nThus,  the  sole  issue  for determination  is whether  this  claim should  be  dismissed due  to  the \nClaimant’s failure to prosecute it under Ark. Code Ann. §11-9-702 (Repl. 2012), and/or Arkansas \nWorkers’ Compensation Commission Rule 099.13. \n The record consists of the August 7, 2024, hearing transcript and exhibits.  In that regard,  \nCommission’s Exhibit No. 1 includes two pages, which has been marked; accordingly, and   \nRespondents’ Exhibit 1 consisting of thirty-one numbered pages was marked as thus so.   \n No testimony was taken at the hearing. \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by \napplicable law.   \n\nROBBINS – H402239 \n \n2 \n \n                            Background \nThe record reflects the following procedural history: \nThe Respondents initially accepted this as a medical-only claim.  This claim involves a slip \nand  fall  injury  that  the Claimant sustained  on the  premises  of  the  respondent-employer on \nNovember 21, 2023.  The Claimant’s work-related incident occurred reportedly while the Claimant \nwas on the premises during her lunch break.  While the Claimant was continuing to undergo further \nmedical  treatment, an investigation by  the  Respondents  revealed that  the Claimant’s injury \noccurred at a time when the Claimant was not performing employment services.  As a result of the \nfindings of this investigation, the Respondents controverted the claim.   \nOnce the claim was controverted, the Claimant sent a written request to the Commission \non April 11, 2024, asking for a hearing on the issue of additional benefits.  Although the Claimant \ndid  not  file  a  Form  AR-C, this letter constitutes the filing of a claim for additional workers’ \ncompensation benefits under the Arkansas Workers’ Compensation Act.       \nTherefore,  the prehearing  process began, and  the  claim  was  assigned  to  my  office for \nadjudication.    On  May  10, 2024, prehearing  questionnaires  and  notices  were forwarded to  the \nparties.  The Claimant’s responsive filing was due on May 30, 2024.  When the Claimant failed to \nfile a timely response, this claim was returned to the Commission’s general files.  However, on \nJune 4, 2024, the Claimant sent in a prehearing questionnaire response to the Commission.  At that \npoint, the Respondents prepared their prehearing questionnaire response and also filed a Motion \nto Compel Discovery.  \nThe Respondents were prompted to take this course of action because they had previously \npropounded discovery to the Claimant, and she provided them with only partial answers.  Per the \nRespondents,  the  Claimant  did  not  provide  any  records  supporting  her  claim  and  she  did  not \n\nROBBINS – H402239 \n \n3 \n \nprovide  any  of  the  releases they  had asked her  for.    After the  Claimant  failed  to  respond  to  the \nmotion, a Motion to Compel was entered.  \nStill, the Claimant failed to pursue her claim for additional workers’ compensation benefits.  \nAs a result, the Respondents essentially moved that the claim be dismissed.  \nOn June 20, 2024, my office wrote to the Claimant and requested a response to the motion \nwithin twenty days.  The letter was sent by first-class and certified mail to the address listed by the \nClaimant with the Commission.  The first-class letter was not returned to the Commission.   \nHowever, on July 24, 2024, the Claimant sent an email to the Commission which simply \nread, “Please dismiss my case.”  \nOn that same date, a dismissal hearing notice was sent to the parties scheduling the hearing \nfor August 7, 2027, at 8:30 a.m. at the Union County Courthouse in El Dorado.   Said notice was \nsent  to  Claimant  by  first-class  and  certified  mail  at  the  same  address  as  before.   The  first-class \nletter was not returned.  Thus, the evidence preponderates that the Claimant received proper notice \nof the dismissal hearing.  \nA hearing was in fact conducted on the Respondents’ motion to dismiss as scheduled.  The \nClaimant chose not to appear at the hearing.   \nThe Respondents appeared through counsel at the hearing and argued for dismissal of this \ncause of action under the authority of Commission Rule 099.13  \nSpecifically, the  Respondents’ attorney requested that  the claim be  dismissed without \nprejudice under Commission Rule  099.13.  The  Respondents noted that the Claimant  has \nconsented in the dismissal of her claim via her correspondence to my office on July 24, 2024. \n \n \n\nROBBINS – H402239 \n \n4 \n \n            Discussion  \n             In that regard, AWCC 099.13 reads:  \nUpon meritorious application to the Commission from either party in an action pending \nbefore the Commission, requesting that the claim be dismissed for want of prosecution, \nthe Commission may, upon reasonable notice to all parties, enter an order dismissing the \nclaim for want of prosecution.  \n \nAs the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012) \nmust prove their entitlement to the relief requested—dismissal of this matter—by a preponderance \nof  the  evidence.    This  standard  means  the  evidence  having  greater  weight  or convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. \n491, 206 S.W.2d 442 (1947).  \n  With  respect  to the  evidence  recounted  above,  (1)  the  parties  were  provided  reasonable \nnotice of the Motion to Dismiss and the hearing on it; and (2) the Claimant has failed to pursue her \nclaim because she has taken no further action in pursuit of it (including not appearing at the August \n7, 2024 dismissal hearing to argue against her claim being dismissed) since the filing of her claim \nfor  additional  benefits  on  April  11,  2024.    Moreover, the Claimant has  stated  that  she does not \nwish to pursue her claim and has agreed for it to be dismissed.   \nAccordingly,  based  on my  review  of  the documentary  evidence,  and  all  other  matters \nproperly before the Commission, I find that the Respondents’ motion to dismiss this claim is called \nfor under the provisions of Rule 099.13 of this Commission.  Said dismissal is without prejudice, \nto the refiling of this claim within the limitation period specified by law.   \nBecause of the abovementioned finding, it is unnecessary to address the application of Ark. \nCode Ann. §11-9-702.  \n \n\nROBBINS – H402239 \n \n5 \n \n                             FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n \n2.         Reasonable notice of the Motion to Dismiss and hearing was had on all the \nparties.   \n \n3.         The evidence preponderates that the Respondents’ motion for dismissal for   \n            a lack of prosecution is well founded.   \n \n4.        That the Respondents’ motion to dismiss is hereby granted pursuant to Rule \n099.13 without prejudice,  to  the  refiling  of  the  claim  within  the specified \nlimitation period.   \n \n \n     ORDER \n \nIn  accordance  with the  foregoing findings  of fact  and conclusions  of law, this  claim is \nhereby dismissed without prejudice, pursuant  to Rule  099.13 to  the  refiling  of it  within  the \nspecified limitation period.        \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":8973,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H402239 HEATHER RENEE ROBBINS, EMPLOYEE CLAIMANT OUACHITA ENRICHMENT CENTER, INC., EMPLOYER RESPONDENT ACCIDENT FUND GENERAL INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT OPINION FILED OCTOBER 9, 2024 Hearing held before Administrative Law Judge Chandra ...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:47:37.193Z"},{"id":"alj-H303801-2024-10-08","awccNumber":"H303801","decisionDate":"2024-10-08","decisionYear":2024,"opinionType":"alj","claimantName":"William Clark","employerName":"Cam Services LLC","title":"CLARK VS. CAM SERVICES LLC AWCC# H303801 October 08, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Clark_William_H303801_20241008.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Clark_William_H303801_20241008.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303801 \n \nWILLIAM CLARK, EMPLOYEE CLAIMANT \n \nCAM SERVICES LLC, \nEMPLOYER RESPONDENT \n \nACCIDENT FUND INS. CO. AMERICA,  \nCARRIER/TPA                       RESPONDENT \n \nOPINION FILED OCTOBER 8, 2023 \n \nHearing  before  Administrative  Law Judge  Steven  Porch on August  28,  2024, in Little  Rock, \nArkansas. \n \nClaimant was represented by Ms. Laura Beth York, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented  by  Ms. Karen  H.  McKinney,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing  was  held  on  this  claim  on August 28,  2024.   A  prehearing  telephone \nconference  took  place  on July 16,  2024.  A  prehearing  order  was  entered  on  that  date  and \nsubsequently  entered  evidence,  with  amendments  by  the  parties,  as  Commission  Exhibit  1.  The \nparties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. An employer/employee/carrier relationship existed on June 6, 2023. \n \n3. Respondents accepted the claimant’s injury to the shoulder as compensable \nand certain benefits have been paid. \n \n4. Respondents controvert in its entirety any injury to the Claimant’s cervical \nspine. \n \n\nCLARK H303801 \n \n2 \n \n 5.  The Claimant’s average weekly wage is $687.28 which entitles him to $458 \nin  temporary  total  disability benefits  and  $344  in  permanent  partial \ndisability benefits weekly. \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1. Whether  Claimant sustained  a  compensable  injury  to  his  cervical  spine  by  specific \nincident. \n \n2. Whether Claimant is  entitled  to  reasonable and  necessary medical treatment  for  his \ncervical spine. \n \n3. Whether  Claimant  is  entitled  to  Temporary  Total  Disability  (TTD) from  August  9, \n2023, to a date to be determined.\n1\n \n \n4.   Whether Claimant is entitled to a controverted attorney’s fees.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s Contentions: On June 6, 2023, Claimant was loading mulch when a sharp pain \nwent down his left arm. He reported the injury, and the Respondents accepted a left shoulder injury. \nHowever, the Respondents denied the cervical spine injury. An MRI to the left shoulder revealed \na signal abnormality in the glenoid labrum consistent with a possible labral tear. An MRI of the \ncervical spine  revealed  a  disk  extrusion  at  C3-4. Claimant  contends  that  he  sustained a \ncompensable injury in the scope and course of the employment and that he is entitled to temporary \ntotal disability benefits, medical treatment, and that his attorney is entitled to an attorney fee.  \nRespondents’ Contentions:  Respondents  contend that  Claimant reported  a  left  shoulder \n \n1\n Claimant made clear at the hearing (Trans. p.116, lines 5-16) and in his post hearing \nbrief that is blue-backed and made a part of this record, that the temporary total disability \nbenefits sought were from August 9, 2023, to a date to be determined. I accept this August 9, \n2023, date as the start date. \n\nCLARK H303801 \n \n3 \n \ninjury  on  June  6,  2023,  which  has  been  accepted  as  compensable.  An  MRI  revealed  a  possible \nlabral tear. The Claimant has a long history of degenerative disc disease and pain management for \nwhich he obtained a medical marijuana card from the State of Texas. Respondents controvert any \ninjury to the Claimant’s cervical spine in its entirety.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary  record,  I  hereby  make  the  following  Findings  of  Fact  and  Conclusions  of  Law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The  Claimant has  proven  by  the  preponderance  of  the  evidence  that he  sustained  a \ncompensable  injury  to  his  cervical spine by  specific  incident during  the  course  and \nscope of employment on June 6, 2023.  \n4.   The Claimant is entitled to reasonable and necessary medical treatment, including two \nsurgeries performed by Dr. Lawrence O’Malley, including out of pocket expense, \nmileage and reimbursement for private health insurance. \n5.   Claimant is entitled to TTD from August 9, 2023, to a date to be determined. \n6.  Claimant has proven by the preponderance of the evidence that his attorney is entitled \nto controverted attorney’s fee. \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, Medical Records, that consists of 191 pages, \nRespondents’ Exhibit 1, medical records, that consist of 66 pages, and Commission Exhibit 1, Pre-\n\nCLARK H303801 \n \n4 \n \nHearing Order, that consists of 5 pages. The post hearing briefs of the parties, Form AR-C, and \nForm AR-1 are blue-backed and made a part of this record. The Claimant was the only witness \ntestifying in the full hearing.  \n Claimant began working for Cam Services (“Respondent/Employer”) in April of 2023, as \na maintenance worker. His job duties involved pressure washing Walmart parking lots, mowing \ngrass,  and  shoveling  mulch. Claimant alleges he  has  suffered  compensable  injuries  to  his  left \nshoulder and neck on June 6, 2023, while shoveling mulch at work. Claimant alleges he felt a sharp \npain running through his left shoulder and arm. Claimant reported the injury to his supervisor on \nthe  same  day but did  not  immediately  seek  medical  treatment. Eventually, on  June  12, 2023, \nClaimant went to the Ozark Health Medical Center with complaints of left shoulder/arm pain. (CL \nEX 1; p 1-22). The Claimant was experiencing some numbness in his left thumb. (RESP. EX 1; p. \n37-38). Following this visit, Claimant was sent by the Respondents to College Park Family Care \nto treat with Dr. Gil Johnson. Claimant was seen by Dr. Gil Johnson on June 15, 2023, again with \nleft  shoulder  and  arm  complaints.  Dr.  Johnson  opined  that the Claimant’s decreased range of \nmotion were suggestive of a rotator cuff tear. (CL EX 1; p 23-24). Dr. Johnson recommended light \nduty. A left shoulder MRI was performed on June 29, 2023, that revealed low grade degenerative \nfraying of the supraspinatus tendon, mild joint osteoarthrosis, and signal abnormality in the glenoid \nlabrum both superiorly and inferiorly and possible labral tearing, particularly inferiorly. (CL. EX \n1; p 39-44). There was no high-grade or full-thickness rotator cuff tear. Id. On June 30, 2023, Dr. \nJohnson  referred  the Claimant  to  an  orthopedic  surgeon  and  continued  to  keep  the Claimant  on \nlight duty. (CL. EX 1; p 45-50).  \nOn  July  18,  2023,  Claimant  underwent  a  cervical  spine  CT  that  revealed  degenerative \nchanges at C4-5, C5-6, and C6-7. (CL. EX 1; p 57-60). Claimant returned to OrthoArkansas where \n\nCLARK H303801 \n \n5 \n \nan MRI to the cervical spine was again ordered. (CL. EX 1; p 88-91). An MRI on July 24, 2023, \nrevealed  degenerative  disk  disease  most  pronounced  at  C5-6  and  C6-7.  (CL.  EX  1;  p  94-99). \nHowever,  Faith  Gebhart,  PA-C,  reviewed  the  MRI  and  noted  that  the  Claimant  suffered  a  disk \nextrusion at C3-4 and referred Claimant to a spine surgeon. (CL. EX 1; p 94-99).  \nOn July 26, 2023, Claimant was treated by Dr. Stephen Paulus, who noted that the Claimant \nsuffered  from  a  disk  herniation  at  C3-4,  and  further  opined,  “As  he  does  describe  acute \nradiculopathy  in  the  context  of  C3-4  disk  herniation,  I  suspect  the  likelihood of  his  neck  and \nradicular arm pain being at least 51% caused by work related injury.” (CL. EX 1; p 100-102). \nClaimant received epidural steroid injection.  \nOn August 9, 2023, Claimant was seen by surgeon, Dr. Jason Smith, who wrote: “He has \nan  MRI  scan  which  is  here  for  my  review.  This  shows  a  disk  protrusion  at  C3-4  causing  mild \ncontact  with  the  cord.  At  C5-6  and  C6-7  there  are  disk  protrusions,  anterior  and  posterior \nosteophytic  spurring,  severe  bilateral  neuroforaminal  narrowing,  and  moderate  central  canal \nstenosis.” (CL. EX 1; p 106-107). Dr. Smith took the Claimant off work for one month. Id. \nOn September 6, 2023, Dr. Smith noted that the Claimant continued to have severe left arm \npain and weakness and recommended a C5-6 and C6-7 ACDF. Dr. Smith also noted that while the \nClaimant had a central disk protrusion at C3-4, he did not think it was the primary source of his \ncurrent symptoms and discussed that the Claimant may need to have it treated in the future. (CL. \nEX 1; p 110).  On October 5, 2023, Claimant underwent a  cervical diskectomy and  fusion from \nC5-C7.  (CL.  EX  1;  p  111).  Claimant  continued  to  follow  up  with  Dr.  Jason  Smith  for  his  post \noperative treatment, and Dr. Smith noted that he had improvement in the left arm pain radiating \ndown the shoulder, however, he was having increased pain in the left shoulder. (CL. EX 1; p 144). \nDr. Smith again opined that the Claimant was temporarily totally disabled. Id.  \n\nCLARK H303801 \n \n6 \n \nDue to continued complaints of ongoing left shoulder pain, Dr. Smith, on January 20, 2024, \nsent Claimant back to Dr. Schock for a shoulder evaluation with the caveat that if his symptoms \nare not better then there will be a consideration of a C3-4 decompression. (CL. EX 1; p 151). An \nMRI  arthrogram  was  performed  on  February  12, 2024,  which  revealed  a  nondisplaced  left \nposterior superior labral tear. (CL. EX 1; p 157-160). Dr. Schock saw Claimant on February 14, \n2024,  and  did  not  recommend  surgery for his shoulder.  (CL.  EX  1;  p  163). However,  an \nEMG/NCV was performed  on  February  20, 2024, that revealed  residual  left  C5-6,  C6-7 \nradiculopathy. (CL. EX 1; p 167-171).  \nOn March 6, 2024, Dr. Smith wrote: “I am ordering a new MRI scan of the cervical spine \nso  that  we  can  evaluate  if  the  disc  herniation  at  C3-4  has  changed.  Finally,  in  my  opinion,  his \ncervical injury was coincident with his shoulder injury, and was work related. A week before his \ninjury  he  was  capable  of  pressure  washing  numerous  Walmart  parking  lots  by  himself.  At  this \npoint he is completely unable to work and is totally temporarily disabled. His pain remains quite \nsevere  to  the  shoulder  and  into  the  arm.  I will  see  him  back  after  the  MRI  scan  of  the  cervical \nspine.” (CL. EX 1; p 172-175).  \nOn  April  17,  2024,  Dr.  Jason  Smith stated  that  Claimant  needed  a  posterior  cervical \nforaminotomy bilateral C6-C7 for ongoing foraminal stenosis and radula symptoms and left at C7-\nT1  needs  PT  for  shoulder,  may  need  future  surgery  on  the  C3-4  disc  if  it  becomes  more \nsymptomatic. (CL. EX 1; p 176-178). Claimant testified that he had not had any pain in his left \nshoulder or cervical spine prior to the date of injury.  \nAdjudication \nA. Whether Claimant sustained compensable injuries to his cervical spine by specific \nincident. \n \n\nCLARK H303801 \n \n7 \n \n Arkansas  Code  Annotated  §  11-9-102(4)(A)(i)  (Repl.  2012),  which  I  find  applies  to  the \nanalysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of employment  and  which  requires \nmedical services or results in disability or death.  An injury is “accidental” \nonly  if  it  is  caused  by  a  specific  incident  and  is  identifiable  by  time  and \nplace of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective findings.  \nArk.  Code  Ann.  §  11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings that \ncannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  The element “arising \nout of . . . [the] employment” relates to the causal connection between the claimant’s injury and \nhis or her employment.  City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987).  \nAn  injury  arises  out  of  a  claimant’s  employment  “when  a  causal  connection  between  work \nconditions and the injury is apparent to the rational mind.”  Id. \n If the claimant fails to establish by a preponderance of the evidence any of the requirements \nfor  establishing  compensability,  compensation  must  be  denied.   Mikel  v.  Engineered  Specialty \nPlastics,  56  Ark.  App.  126,  938  S.W.2d  876  (1997).    This  standard  means  the  evidence  having \ngreater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission.  White  v.  Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \n\nCLARK H303801 \n \n8 \n \nto  believe  the  testimony  of  the  claimant  or  any  other  witness  but  may  accept  and  translate  into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \nI find that Claimant has proven by the preponderance of the evidence that he has sustained \na compensable cervical spine injury during the course and scope of his employment by specific \nincident. Claimant testified that he was shoveling mulch in the scope and course of employment \non  June  6,  2023,  when  he  felt a  pop  followed  by  a  rubber-band  sensation  going  down  his  arm \ncausing his thumb and index finger to go numb and start burning. Trans. p. 17, lines 20 -23. He \nreported the injury to his supervisor and was eventually sent for medical treatment. The Claimant \nsought medical treatment and was referred to Dr. Schock, who opined that the left arm pain was \ncervical radiculopathy, and he needed treatment for his cervical spine injury.  \nFaith Gebhart, PA-C, reviewed Claimant’s MRI and noted that he suffered a disk extrusion \nat C3-4 and referred him to a spine surgeon. (CL. EX 1; p 94-99). On July 26, 2023, Claimant was \ntreated by Dr. Stephen Paulus, who also noted that the Claimant suffered from a disk herniation at \nC3-4, and further opined, “As he does describe acute radiculopathy in the context of C3-4  disk \nherniation, I suspect the likelihood of his neck and radicular arm pain being at least 51% caused \nby work related injury.” (CL. EX 1; p 100-102). Spine surgeon, Dr. Jason Smith opined: “He has \nan  MRI  scan  which  is  here  for  my  review.  This  shows  a  disk  protrusion  at  C3-4  causing  mild \ncontact  with  the  cord.  At  C5-6  and  C6-7  there  are  disk  protrusions,  anterior  and  posterior \nosteophytic  spurring,  severe  bilateral  neuroforaminal  narrowing,  and  moderate  central canal \nstenosis.” (CL. EX 1; p  103-107). Furthermore,  a EMG/NCV performed  on February 20, 2024, \nrevealed residual left C5-6, C6-7 radiculopathy on electromyography. (CL. EX 1; p 167-171).  \nThough Respondents argue that there are no objective medical findings only degenerative \nfindings, Faith  Gebhart,  PA-C,  Dr.  Stephen  Paulus,  and  Dr.  Jason  Smith have  all identified \n\nCLARK H303801 \n \n9 \n \nherniated disks from that very MRI where other healthcare professionals cited only degenerative \nfindings. I credit the medical findings of Faith Gebhart, PA-C, Dr. Stephen Paulus, and Dr. Jason \nSmith.  The  Claimant  has  proven by  the  preponderance  of  the  evidence  that  he  has objective \nfindings.  \nMoreover, Claimant’s doctors have causally related his injuries to the work accident. On \nJuly 26, 2023, Dr. Stephen Paulus opined, “As he does describe acute radiculopathy in the context \nof C3-4 disk herniation, I suspect the likelihood of his neck and radicular arm pain being at least \n51% caused by work related injury.” (CL. EX 1; p 100-102). Additionally, on April 17, 2024, in \nresponse to a question, Dr. Jason Smith, one of Claimant’s treating physicians and spinal surgeon, \nwrote “Yes” to the following question, “Do you believe, within a reasonable degree of medical \ncertainty, that the injuries you treated Mr. William Clark for (after the 06/06/2023 on the job injury) \nwere  caused by the work-related accident?” (CL. EX 1; p 176-178). I  credit Dr. Paulas and Dr. \nSmith’s opinions. Thus, I further find that the Claimant has proven by the preponderance of the \nevidence that his cervical injuries were causally connected to his work-related incident. \nB. Whether Claimant is entitled to additional reasonable and necessary medical \ntreatment for his cervical spine. \n \nArkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states that an employer shall \nprovide for an injured employee such medical treatment as may be necessary in connection with \nthe  injury  received  by  the  employee.   Wal-Mart  Stores,  Inc.  v.  Brown,  82  Ark.  App.  600,  120 \nS.W.3d 153 (2003).  But employers are liable only for such treatment and services as are deemed \nnecessary for the treatment of the claimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, \n725 S.W.2d 857 (1987).  The claimant must prove by a preponderance of the evidence that medical \ntreatment is reasonable and necessary for the treatment of a compensable injury.  Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What  constitutes \n\nCLARK H303801 \n \n10 \n \nreasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the  Commission.   White \nConsolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut Corp. v. \nJones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to  additional \ntreatment even after the healing period has ended, if said treatment is geared toward management \nof the injury.  See  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); \nArtex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  Such services can \ninclude  those  for  the  purpose  of  diagnosing  the  nature  and  extent  of  the  compensable  injury; \nreducing or alleviating symptoms resulting from the compensable injury; maintaining the level of \nhealing achieved; or preventing further deterioration of the damage produced by the compensable \ninjury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \nI  find  by  the  preponderance  of  the  evidence  that  Claimant has  proven  he is  entitled to \nreasonable and necessary medical treatment in the form of a cervical anterior fusion for the C5-\nC6-C7. On  April  17,  2024,  Dr.  Jason  Smith stated  that  Claimant  needed  a  posterior  cervical \nforaminotomy bilateral C6-C7 for ongoing foraminal stenosis and radula symptoms and left at C7-\nT1  needs  PT  for  shoulder,  may  need  future  surgery  on  the  C3-4  disc  if  it  becomes  more \nsymptomatic. (CL. EX 1; p 176-178). I credit this recommendation. I further find the Claimant has \nproven by  the  preponderance  of  the  evidence that  the treatment provided  for  his  cervical  spine \ninjury, and the treatment recommended for Claimant’s cervical spine, made by Dr. Smith, were all \nreasonable and necessary and the Claimant was entitled to the treatment he received as well as the \ntreatment recommendations.  \nC. Whether Claimant is entitled to temporary total disability benefits. \nClaimant sustained an unscheduled cervical spine injury. Ark. Code Ann. § 11-9-521. An \nemployee who suffers a compensable unscheduled injury is entitled to temporary total disability \n\nCLARK H303801 \n \n11 \n \ncompensation for that period within the healing period in which he suffered a total incapacity to \nearn wages. Arkansas State Highway & Transportation Department v. Breshears, 272 Ark. 244, \n613  S.W.2d  392  (1981). The  healing  period  ends  when  the  underlying  condition  causing  the \ndisability  has  become  stable  and  nothing  further  in  the  way  of  treatment  will  improve  that \ncondition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). Also, a Claimant \nmust demonstrate that the disability lasted more than seven days. Id. § 11-9-501(a)(1). Claimant \nmust prove entitlement to temporary total disability benefits by a preponderance of the evidence. \nArk. Code Ann. § 11-9-705(a)(3) (Repl. 2002). This standard means the evidence having greater \nweight or convincing force. Barre v. Hoffman, 2009 Ark, 373, 326 S.W.3d 415; Smith v. Magnet \nCove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \nAgain,  a Claimant’s testimony is never considered uncontroverted. Nix  v.  Wilson  World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). The determination of a witness’ credibility and \nhow much weight to accord to that person’s testimony are solely up to the Commission. White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Claimant testified that he has not worked for Respondent/Employer since August 6, \n2023. Trans. p. 37, lines 4-22. I credit this testimony. Dr. Jason Smith took the Claimant off \nwork on August 9, 2023, and has continued to keep the Claimant off work. As mentioned \npreviously, Dr. Jason Smith recommended further treatment to improve Claimant’s condition in \nthe form of a posterior cervical foraminotomy bilateral C6-C7 for ongoing foraminal stenosis \nand radula symptoms and left at C7-T1 needs PT for shoulder, and the possibility of a future \nsurgery on the C3-4 disc if it becomes more symptomatic. Dr. Smith has made clear he is not \nprepared to release him to work based on his recommendations concerning Claimant’s medical \nneeds and has, in fact, not released Claimant to work. Since that is the case, I find by the \n\nCLARK H303801 \n \n12 \n \npreponderance of the evidence that the Claimant is entitled to temporary total disability benefits \nfrom August 9, 2023, to a date yet to be determined.  \nATTORNEY FEES \nOne of the purposes of the attorney's fee statute is to put the economic burden of litigation \non the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 \n(1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B)  Attorney’s  fees  shall  be  twenty-five  percent  (25%)  of  compensation  for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a  deceased \nemployee  .  .  .  In  all  other  cases  whenever  the  commission  finds that  a  claim  has \nbeen controverted, in whole or in part, the commission shall direct that fees for legal \nservices be paid to the attorney for the claimant as follows:  One-half (½) by the \nemployer or carrier in addition to compensation awarded; and one-half (½) by the \ninjured  employee  or  dependents  of  a  deceased  employee  out  of  compensation \npayable to them. \n \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have  controverted \nClaimant’s entitlement to additional indemnity benefits.  Thus, the evidence preponderates that his \ncounsel, the Hon. Laura Beth York, is entitled to the fee as set out above. \nCONCLUSION AND AWARD \n Respondents are hereby directed to pay/furnish benefits in accordance with the findings of \nfact and conclusions of law set forth above. All accrued sums, minus any lawful offsets, shall be \npaid in a lump sum without discount, and this award shall earn interest at the legal rate until paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2002).  See Couch v. First State Bank of Newport, \n49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":24365,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H303801 WILLIAM CLARK, EMPLOYEE CLAIMANT CAM SERVICES LLC, EMPLOYER RESPONDENT ACCIDENT FUND INS. CO. AMERICA, CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 8, 2023 Hearing before Administrative Law Judge Steven Porch on August 28, 2024, in Little Rock, Arkans...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["shoulder","cervical","neck","rotator cuff","back","herniated"],"fetchedAt":"2026-05-19T22:47:30.953Z"},{"id":"alj-H304343-2024-10-08","awccNumber":"H304343","decisionDate":"2024-10-08","decisionYear":2024,"opinionType":"alj","claimantName":"Diana Coleman","employerName":"Youth Home, Inc","title":"COLEMAN VS. YOUTH HOME, INC. AWCC# H304343 October 08, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/COLEMAN_DIANA_H304343_20241008.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COLEMAN_DIANA_H304343_20241008.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H304343 \n \nDIANA COLEMAN, EMPLOYEE        CLAIMANT \n \nYOUTH HOME, INC., SELF-INSURED EMPLOYER           RESPONDENT \n    \nRISK MANAGEMENT RESOURCES, TPA               RESPONDENT \n \n \nOPINION FILED 8 OCTOBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 10 July 2024 in Little Rock, Arkansas. \n \nProctor & Malone, Mr. Willard Proctor, for the claimant. \n \nWorley, Wood & Parrish, P.A., Ms. Melissa Wood, for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 10 July 2024 in Little Rock, Arkansas. The \nparties participated in a pre-hearing telephone conference on 23 April 2024. A Prehearing \nOrder, admitted to the record without objection as Commission’s Exhibit No 1, was entered \non 25 April 2024. \nThe parties agreed to the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  The employee/self-insured employer/TPA relationship existed at all relevant \ntimes, including on 19 June 2023, the date of the alleged compensable injury. \n3.  The claimant’s average weekly wage at the time of the work incident would \nentitle her to the maximum compensation amounts for temporary total disability \n(TTD) benefits and partial permanent disability (PPD) benefits.  \n4.  The respondents have controverted this claim for any additional benefits. \n\nD. COLEMAN- H304343 \n2 \n \nThe parties agreed on the following ISSUES TO BE LITIGATED\n1\n: \n1.  Whether the claimant suffered a compensable injury. \n2.  Whether the claimant is entitled to the benefits associated with a compensable \ninjury to her right hip, knee, and thigh by specific incident. \n3.  Whether the claimant is entitled to an attorney’s fee. \nAll other issues were reserved. \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire \nResponses, were incorporated into the Prehearing Order.  \nPer the claimant’s CONTENTIONS, she is entitled to temporary total benefits from \nthe date of the injury to the end of her healing period. \nPer the respondents’ CONTENTIONS, the claimant did not suffer a compensable \ninjury on 19 June 2023. There are no objective findings of a work-related injury.\n2\n The \nmedical documentation does not support entitlement to additional medical benefits or \nindemnity benefits associated with the 19 June 2023 incident. \nThe following WITNESSES testifying at the hearing: the claimant testified on her \nown behalf, and the respondents called Ms. Kelly Destafano, who worked in Human \nResources at the time of the incident.  \nThe EVIDENCE presented consisted of the testimony along with Commission’s \nExhibit No 1 (the 25 April 2024 Prehearing Order), Claimant’s Exhibit No 1 (seven pages of \n \n1\n The Prehearing Order reflects whether the claimant’s healing period had ended as an \nIssue. At the hearing, however, the claimant acknowledged an end to her healing period \nand asserted that the period ran from 26 June 2023 to 15 September 2023. See TR at 95. \n2\n The Respondents’ Prehearing information denied compensable injuries to the claimant’s \nright thigh and hip. At the hearing, they made clear that any claim(s) related to a \ncompensable right knee injury were also denied. The claimant concurred with that \nclarification. [TR at 9.] \n\nD. COLEMAN- H304343 \n3 \n \nmedical records), and Respondents’ Exhibit Nos 1 (7 pages of medical records) and 2 (nine \npages of non-medical records). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the \nwitnesses, observing their demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that she suffered a \ncompensable injury. \n \n4.  The claimant is, therefore, not entitled to the benefits sought, and she is not entitled \nto an attorney’s fee. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \nClaimant Diana Coleman \n The claimant testified that she has worked for the respondent-employer since 1988. \nHer title at the time of the incident at issue was Residential Treatment Counselor, which \nshe described as a behavioral paraprofessional. According to her testimony, the respondent-\nemployer provides residential programs for male youths who have experienced issues of \nabuse, neglect, abandonment, and the like. \n Part of the claimant’s job involved intervening when clients were upset or \ndisruptive. Physical restraint techniques may be required at times. On Monday, 19 June \n2023, the day of the incident, the claimant described two staff members escorting a client, a \n14 or 15 year old of 100 to 115 pounds and slender build, into the facility from outside with \nother clients. The client began to struggle against the staff as they neared the seclusion \narea. As the struggle moved to the floor, the claimant attempted to assist the other staff. \n\nD. COLEMAN- H304343 \n4 \n \n While the client was on his back on the floor, the claimant tried to help remove his \nshoes. “They have shoestrings or what have you that they can harm themselves. They could \nhave something inside the shoes that they could use to harm themselves. So, we try to take \ncare of that ahead of time, before taking them to seclusion.” [TR at 22.] The claimant \ntestified that after getting the shoes off, she tripped over the client, with her left knee \nfalling against him and her right knee on the floor beside him. She stated that she fell from \na standing position. Her right upper torso was against the floor while she leaned over the \nclient to continue assisting in his restraint. The claimant stated that her right shin and \nknee hit the floor, but she did not recall her right thigh hitting the floor. She stayed atop \nthe claimant on the ground until he calmed down enough to move to the seclusion area. \n After the client was escorted to the seclusion area, the claimant helped with serving \nlunch to the other clients. She recalled staying onsite past her usual shift’s end to assist \nwith lunch, but then drove home without incident. She did not report an injury before \nleaving that day. \n According to the claimant, her left knee felt stiff and sore the following day; but she \ndid not observe any bruising or signs of an injury. She worked the next day (a Tuesday) \nwithout incident or complaint, noting, “I fell and I was supposed to be stiff or sore.” [TR at \n38.] The claimant was not scheduled to work for the following few days. She recalled \npossibly taking some Tylenol around that time for soreness. The claimant testified that she \nspoke on the phone with coworker Ms. Sheila Glass on Thursday and complained to her \nabout a burning pain in her thigh. The pain, she said, radiated from her groin down her \nthigh to her left knee and shin.  \n After a short break off the record, the claimant clarified that any testimony about \nher left side being injured or hurting was in error, and that she meant to reference her \nright side. When asked, “And so the testimony that you were giving, you, actually, referring \n\nD. COLEMAN- H304343 \n5 \n \nto the right side of your body, is that correct?” she answered, “Yes, sir.” [TR at 42.] The \nclaimant then explained that she had difficulty getting out of bed for work that Friday. She \ndenied any falls or injuries since the incident at work on Monday. The claimant stated that \nshe used a heating pad on her thigh and knee while at work that Friday evening, but she \ndid not make an injury report. She did the same on her shift the following evening.  \n The claimant returned to work again for a shift on Sunday evening. She described \nhaving some difficulty, but making it through her shift with help from a coworker. That \nMonday morning she recalled reporting that she sustained an injury on the previous \nMonday. She was directed to a Concentra clinic for evaluation (on 26 June 2023) and was \nreturned to work that same day with some restrictions. The claimant followed up at \nConcentra on 29 June 2023. She stated that she was complaining of right knee and thigh \npain at that visit. Dr. Scott Carle returned the claimant to work without restrictions that \nday, but ordered some physical therapy sessions. She did not attempt the physical therapy \nand denied in her testimony that she was able to return to work at the time. \n According to the claimant, she should not have gone back to work because she did \nnot believe that she could participate in physically restraining a client. \nQ:  Okay. So in other words, would you or were you in a position that if a \nsimilar thing had happened, where you had to get on the floor to be able to \nhold a child down or to, physically hold them, were you able to, physically, \nable to do that on June 29\nth\n of 2023? \n \nA:  No, sir. \n \nQ:  Okay. And is that part of the issue that you were having with regards to \nbeing able to comply with what Concentra – the doctor from Concentra was \nasking you to do? \n \nA:  That would be the main thing – reason that I couldn’t comply with that. \n \nQ:  Okay. All right. \n \nA:  And plus, that’s Youth Home policy as well. \n \n\nD. COLEMAN- H304343 \n6 \n \nQ:  Okay. All right. \n \nA:  To be able to restrain. \n \nQ:  Okay. Now, did you—let’s talk about that. Did you, physically, go back to \nwork on the 29\nth\n? \n \nA:  No, sir. \n \n[TR at 55-56.] \n The claimant testified that she explained her disagreement with the physician’s \nopinion to her employer and that she was offered light duty work, which she refused. \nQ:  But she was offering it? \n \nA:  She offered it. \n \nQ:  Okay. And did you take it? \n \nA:  And at the time I was like, “I’m in pain and what I needed to do is to rest,” \nand I didn’t feel like I could just sit there at the receptionist desk, that’s the \njob that was—and to sit there and be in pain. I might as well sit at home in \npain, that’s what I’m thinking. \n \n[TR at 58.] \n According to the claimant, she sought a Change of Physician through the \nCommission and eventually saw a Dr. Moeller with St. Vincent on the 5\nth\n of July of 2023. \nShe testified that he placed her on work restrictions and recommended physical therapy. \nThe claimant testified that she eventually attempted the physical therapy “sometime later \non.” [TR at 64.]  \n The claimant further testified that she later saw a Dr. Nallur, whom she also \nthought she might have seen on the 5\nth\n of July and then again around July 19\nth\n. At this \npoint in the testimony, the respondents’ counsel offered that their file reflected the care \nwith Concentra being initially authorized, but by the time the claimant sought a Change of \nPhysician, her claim had been denied. \n\nD. COLEMAN- H304343 \n7 \n \nMs. Wood:  Judge, if I may. I’ve been able to look up in our file, Ms. Coleman \ndid request a Change of Physician. While the claim may have been initially \naccepted, Concentra was authorized. It [the claim] was denied. By the time \nshe made the request for a Change of Physician, that was denied by the \nCommission. I’m looking at a letter from Susan Isaac dated July 17\nth\n of ’23 \ndenying the Change of Physician. \n \nJudge:  Does that seem to clear it up on your end, Mr. Proctor— \n \nMr. Proctor:  Yes. \n \nJudge:  -- as to what’s happening when and where? \n \nMr. Proctor:  Okay. Yes. \n \n[TR at 67-68.] \n Ms. Coleman then testified that whenever she did attempt to attend the physical \ntherapy ordered by Dr. Nallur, coverage was denied. Around that time of 19 July 2023, the \nclaimant was still not working. She recalled going to the Baptist Hospital emergency \ndepartment on or about 24 July 2023. The claimant did not describe her course or \ntreatment at the emergency department, but said that she followed up sometime \nafterwards with her primary care provider Dr. Rhodora Raghavan. \nQ:  Okay. All right. It looks—we have introduced records that would appear \nthat, that would have been August the 23\nrd\n, of 2023? You’ve seen her for \nissues with our hip and right hip pain? \n \nA:  That could be correct. I mean, that’s probably correct for the time. \n \n[TR at 72-73.] \n Dr. Raghavan referred the claimant to Associate Physical Therapy and to \nOrthoArkansas, where she saw Dr. Victor Vargas for right knee pain. After seeing Dr. \nVargas on September 6\nth\n, the claimant returned to work at full duty without restrictions on \n15 September 2023. She testified that she was still in physical therapy at the time of her \nreturn to work, explaining, “certain things I had not completed or worked on, like how to sit \nand how to get up, how to bend, how to squat, all that, but I was back at work.” [TR at 74.] \n\nD. COLEMAN- H304343 \n8 \n \nThe claimant confirmed that she had not worked between 26 June and 15 September 2023. \nDespite her return to work, she explained: \nQ:  Are you still suffering from this injury to the point that it would require \nyou to go to the doctor? \n \nA:  I still suffer from it. \n \nQ:  Have you been required or are you required to go or have there been—is \nthere a requirement in your—for you to seek medical treatment as a result of \nthe injuries that you’re presenting? \n \nA:  Its’ not a requirement if that’s what you’re saying. \n \n. . . \n \nQ:  Okay. So as far as any further medical treatment, are you—I’m asking, do \nyou believe that you’re going to be in need of further medical treatment? \n \nA:  I got a feeling that I will, because I—I mean, I experience a lot of pain. \n \n[TR at 75.] \n On cross examination the claimant recalled her deposition testimony: \nQ:  ... “At any point since June 19\nth\n, have you either seen on your own or had \na doctor tell you about a specific finding or visible sign of injury in your hip, \nleg, or knee?” Your response was, “No. No, sir.” Is that accurate? \n \nA:  Sounds accurate. \n \nQ:  Do you have any doctor visits at all scheduled right now for your right \nleg? \n \nA:  No, ma’am. \n \nQ:  And you testified in your deposition that you had no treatment or testing \nthat had been recommended that you have not received, is that right? \n \nA:  Yes, ma’am. \n \n[TR at 82.] \n The claimant stated that she currently takes over-the-counter medication as needed \nfor pain and that she utilized accumulated paid leave during the time between presenting \nto Concentra on 26 June 2023 and then returning to work on 15 September 2023. \n\nD. COLEMAN- H304343 \n9 \n \n On re-direct examination the claimant confirmed that Dr. Nallur prescribed light \nduty at her 6 July 2023 visit. \n      Respondents’ Witness Kelly Destefano, Former HR Officer at Youth Home \n Ms. Destefano verified that she was the author of an email admitted into evidence \nby the respondents. [Resp. Ex. No 2 at 8.] She explained that she was in the process of \nchanging employment while the claimant’s matter was in process with the respondents, so \nshe wrote the email to provide the claimant and an HR coworker with pertinent \ninformation and the then-current status of the claim. She explained that the claimant was \nincluded on the message “so that if I had missed anything she could call me.” [TR at 90.] \nMs. Destefano testified that the claimant did not relay any objection or correction to the \nstate of things as described in the email. \n According to Ms. Destefano, she spoke with Sheila Glass and Liz Larsen after the \nclaimant’s report of an injury. She asked each to relay what they recalled of the restraint \nincident and then documented their responses in her email. Ms. Stefano also stated that \nthe claimant declined her offer of light-duty work. She further stated that she discussed \nwith the claimant the process for seeking care beyond her initial authorized provider. \nQ:  Did you talk to her about authorized treatment? \n \nA:  What do you mean? \n \nQ:  Authorized versus unauthorized treatment. \n \nA:  Oh, yes, she told me that she was going to see a different doctor and I was \nconcerned about that, because I knew that if workers’ comp didn’t authorize \nher to go to a different doctor that they wouldn’t pay for it and referred her \nback to the workers’ comp folks to get that worked out. \n \n[TR at 91.] \n\nD. COLEMAN- H304343 \n10 \n \n On cross examination, Ms. Destefano noted a video of the incident and that while \nshe had not seen the video, the claimant’s supervisor had reviewed it and relayed to her \nthat the claimant fell over on the floor from a crouched position. \nMedical Evidence \n The claimant’s 26 June 2023 Concentra clinic visit with Physician Assistant Ellen \nCupit noted the following diagnoses: Fall, initial encounter; Knee pain, right; Bursitis of \nhip, right. A follow-up was indicated for two days later, and she was returned to work that \nday with restrictions for sedentary work only. [Cl. Ex. No 1 at 1.] \n The radiology reports from that day include the following: \nX-Ray, Right knee, 3 views \n \nFindings: There is no evidence of acute fracture, dislocation or osseous lesion. \nThe femorotibial joint space is narrowed, medially. The adjacent soft tissues \nappear unremarkable, with no join effusion. \n \nImpression:  no acute traumatic osseous abnormality. \n \n. . .  \n \nX-Ray, Right Hip, unilat. with pelvis when performed, 2-3 views \n \nFindings:  There is no evidence of acute fracture, dislocation or osseous \nlesion. The hip joint space is preserved and the femoral head has a normal \ncontour. The adjacent soft tissues appear unremarkable. \n \nImpression:  No acute traumatic osseous injury. \n \n[Resp. Ex. No 1 at 1-2.] \nThe Form AR-N completed by the claimant on 27 June 2023 complained of “upper right \nthigh, knee, and right below the knee, all the right side, what I have noticed so far.” [Resp. \nEx. No 2 at 5.] \n Her next Concentra appointment, according to the short-form Work Status Activity \nReport provided by the claimant, was on 29 June 2023 with Dr. Scott Carle. That visit was \ncoded for: Knee pain, right; Lateral pain of right hip; Fall, initial encounter. Dr. Carle \n\nD. COLEMAN- H304343 \n11 \n \nreleased the claimant to return to work without restrictions that day and ordered three \nphysical therapy appointments and another clinic follow-up. [Cl. Ex. No 1 at 2.] The long-\nform Transcription note from that visit provided the following: \n10 days out from fall at work when trying to restrain patient. C/o some right \nknee and hip pain. Improved. No locking or giving way. Some right lateral \nhip pain with ambulation. \n \n. . .  \n \nMorbidly obese \n \n. . .  \n \nNormal gait. No tenderness or swelling of extremities. Range of motion is \nwithin normal limits. Normal muscle strength and tone. \nRight Hip: No pain with passive rotation right hip joint. No limp. \nRight Knee: No knee effusion. Full ROM.  \nLigamentous Laxity Test(s): negative Anterior Drawer sign, negative \nPosterior Drawer sign, no laxity on valgus stress and no laxity on varus \nstress. \nMeniscal Test(s): negative lateral McMurray test and negative medial \nMcMurray test. \n \n. . .  \n \nFunctional Restoration and Status of Healing: Diana Coleman is at \nfunctional goal, not at end of healing.  \nComments: Severe deconditioning pr[e]ceded case date. \n \n. . . \n \nNO MEDICATIONS WERE PRESCRIBED OR DISPENSED FOR THIS \nENCOUNTER. \n \n. . . \n \nActivity Status and Restrictions \nTreatment Status: Returning for follow-up 5 days \nActivity Status: There are restrictions not related to this injury. The claimant \ncan return to work with no restrictions on 06/29/2023. \n \n[Resp. Ex. No 1 at 3-5.]  \n On 23 August 2023, Dr. Raghavan referred the claimant to physical therapy for \nthigh and hip pain. [Id. at 3-5.] Then, on 6 September 2023, Dr. Vargas referred the \n\nD. COLEMAN- H304343 \n12 \n \nclaimant to physical therapy for right knee joint pain, indicating, “Note to provider: \nhamstring/thigh.” [Id. at 6.] Dr. Vargas wrote a note, also on 6 September 2023, for the \nclaimant’s return to work at full duty without restrictions on 15 September 2023. [Id. at 7.]  \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted as fact. It is settled that the \nCommission, with the benefit of being in the presence of the witnesses and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 \n(1999).   \nA. THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT SHE SUSTAINED A COMPENSABLE INJURY. \n \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving \nby a preponderance of the evidence that she sustained a compensable injury as the result of \na workplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). A compensable injury must be \nestablished by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-\n102(4)(D). Objective medical findings are those findings that cannot come under the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Causation does not \nneed to be established by objective findings when the objective medical evidence establishes \nthat an injury exists and other nonmedical evidence shows that it is more likely than not \nthat the injury was caused by an incident in the workplace. Bean v. Reynolds Consumer \nProds., 2022 Ark. App 276, 646 S.W.3d 655, 2022 Ark. App. LEXIS 276 (citing Wal-Mart \nStores, Inc. v. VanWagner, supra). \nThe claimant alleges that her injury occurred by specific incident. The claimant \nmust establish four (4) factors by a preponderance of the evidence to prove a specific \nincident injury: (1) that the injury arouse during the course of employment; (2) that the \n\nD. COLEMAN- H304343 \n13 \n \ninjury caused an actual harm that required medical attention; (3) that medical evidence, \nsupported by objective findings, support the existence of the injury; and (4) that the injury \nwas caused by a particular incident, identifiable in time and place. See Cossey v. G. A. \nThomas Racing Stable, 2009 Ark. App. 666, 344 S.W.3d 684, 689. \nThe claimant failed to prove that she suffered a compensable injury under the Act. I \nfind Dr. Carle’s opinion to be credible. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 \nS.W.3d 878 (2002) (the Commission may accept or reject a medical opinion and determine \nits probative value). His examination revealed no objective signs of a compensable injury \nattributable to the restraint incident in the workplace. He does note, however, that the \nclaimant is morbidly obese with “severe deconditioning” preceding and unrelated to the \nworkplace incident. I interpret his statement, “There are restrictions not related to this \ninjury,” as acknowledging some physical limitations, consistent with those entered three \ndays earlier by the PA, but making clear that those restrictions are not attributable to the \nworkplace incident. \nNone of the other medical evidence submitted by the claimant (i.e., physical therapy \nreferrals dated August 23\nrd\n and September 6\nth\n) makes any reference to a workplace injury \nor makes any note as to a mechanism of injury. Those records do not support a finding of a \ncompensable injury. The claimant’s unsupported and generally unspecific complaints of \nfeeling pain, still today as she did in the days eventually following the incident, are not \nenough in the clear absence of substantiating medical evidence, to meet her burden of proof. \nAccordingly, her claim for a compensable injury must fail. \nI do not find it of particular probative value to place concern on whether the \nclaimant fell over from a standing position, which she claims, or from a kneeling position, \nas indicated in the record of her supervisor’s contemporaneous review of the incident. \n\nD. COLEMAN- H304343 \n14 \n \nRegardless of how she came to be on the floor, I do not find it more likely than not that she \nsuffered a compensable injury to her hip, thigh, or knee during the restraining incident.  \nThe subsequent treatment the claimant may have received during the time she \nstayed off of work, of which the records are scant, is thus not the responsibility of the \nrespondents.  \nB.   BECAUSE THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF \nTHE EVIDENCE THAT SHE SUFFERED A COMPENSABLE INJURY, SHE IS \nNOT ENTITLED TO TTD BENEFITS. \n \nA claimant must prove her entitlement to TTD benefits by a preponderance of the \nevidence. Ark. Code Ann. § 11-9-705(a)(3). Because the claimant failed to prove a \ncompensable injury, her claim for TTD benefits must fail. \nC.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT SHE IS ENTITLED TO AN ATTORNEY’S FEE. \n \nBecause the claimant failed to meet her burden on establishing a compensable \ninjury, she is not entitled to an attorney’s fee. \nV.  ORDER \n     Consistent with the Findings of Fact and Conclusions of Law stated above, this claim is \ndenied and dismissed.  \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":24937,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H304343 DIANA COLEMAN, EMPLOYEE CLAIMANT YOUTH HOME, INC., SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED 8 OCTOBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge JayO...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:3","denied:8"],"injuryKeywords":["hip","knee","back","fracture"],"fetchedAt":"2026-05-19T22:47:33.039Z"},{"id":"alj-G702582-2024-10-08","awccNumber":"G702582","decisionDate":"2024-10-08","decisionYear":2024,"opinionType":"alj","claimantName":"Nathan Tackett","employerName":"City Of Little Rock","title":"TACKETT VS. CITY OF LITTLE ROCK AWCC# G702582 October 08, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TACKETT_NATHAN_G702582_20241008.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TACKETT_NATHAN_G702582_20241008.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G702582 \n \n \nNATHAN TACKETT, EMPLOYEE       CLAIMANT \n \nCITY OF LITTLE ROCK, SELF-INSURED EMPLOYER        RESPONDENT \n     \nRISK MANAGEMENT RESOURCES, TPA          RESPONDENT \n \n \n \nOPINION FILED 8 OCTOBER 2024 \n \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 10 July 2024 in Little Rock, Arkansas. \n \nThe Davis Law Firm, Mr. Gary Davis, appeared for the claimant. \n \nWorley, Wood & Parrish, PA, Ms. Melissa Wood, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 10 July 2024 in Little Rock, Arkansas, after \nthe parties participated in a pre-hearing telephone conference on 21 May 2024. The \nsubsequent Pre-hearing Order, admitted to the record without objection as Commission’s \nExhibit No 1, was entered on the day following the conference.  \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n \n2.  An employee/self-insured employer/TPA relationship existed at all relevant \ntimes, including on 17 March 2017 when the claimant sustained an accepted \ncompensable injury to his right shoulder. \n \n3.  The claimant’s average weekly wage at the time of the injury was $1,611.94, \nwhich entitled him to the maximum TTD/PPD rates of $661/$496 per week. \n \n4.  The respondents have paid permanent partial disability benefits pursuant to a \n26% permanent impairment rating to the body as a whole. \n \n\nTACKETT- G702582  \n2 \n \nThe Order stated the following ISSUES TO BE LITIGATED: \n1.  Whether the claimant is entitled to wage loss disability benefits. \n2.  Whether the claimant is entitled to an attorney’s fee. \nThe parties’ CONTENTIONS, as set forth in their pre-hearing questionnaire \nresponses, were incorporated into the Pre-hearing Order. The claimant CONTENDS that \nhe sustained compensable injuries to his right shoulder on 17 March 2017, that he has been \nfound to have permanent impairment, and that he is entitled to a wage loss disability \ndetermination. The respondents CONTEND that all appropriate benefits are being paid \nwith regard to the claimant’s compensable right shoulder injury. They further contend that \nthe claimant continued to work for the City of Little Rock after his injury until he retired \nand moved to Florida. \n The following WITNESSES testified at the hearing: the claimant testified on his \nown behalf, and Major Christina Plummer testified on behalf of the respondents. \n The EVIDENCE consisted of the hearing testimony, Commission’s Exhibit No 1 (the \n22 May 2024 Prehearing Order), and Claimant’s Exhibit No 1 (78 pages of medical records). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole and having heard testimony from the \nwitnesses, observing their demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n 1.  The AWCC has jurisdiction over this claim. \n 2.  The previously noted stipulations are accepted as fact. \n3.  The claimant failed to prove by a preponderance of the evidence that he is \nentitled to wage loss benefits in any amount. \n \n4.  The claimant failed to prove by a preponderance of the evidence that he is \nentitled to an attorney’s fee. \n \n \n\nTACKETT- G702582  \n3 \n \nIII.  HEARING TESTIMONY  \nClaimant Nathan Tackett \n The claimant in this matter is a 62-year-old retired police officer. He is a high school \ngraduate and testified that he attained between 55 and 60 hours of college credit (which he \nequates to an associate’s degree). Before joining the Little Rock Police Department (LRPD), \nthe claimant worked for the Yell County Sherrif’s Office and the Russellville Police \nDepartment. His service with the LRPD began in 1985 as a Patrol Officer. Between 1988 \nand 1990, the claimant worked as an Undercover Detective before returning briefly to the \nrole of Patrol Officer. He served as an Investigator in the LRPD’s Training Division for a \nnumber of years and was then promoted to Sergeant, supervising the Police Personnel Unit \nuntil February of 2001. \n In January of 2002, the claimant was promoted to the rank of Lieutenant and served \nin multiple supervisory positions at that rank. He was assigned as Shift Commander for the \nDowntown Patrol Division’s Day Watch in March of 2017. The claimant described that role \nas mid-level management, supervising the Sergeants responsible for patrol squads and \nensuring that field work and administrative processes were handled appropriately. He was \nalso responsible for responding to some calls and patrol duties alongside other officers. \n The claimant sustained his injury during annual in-service training on 17 March \n2017, when he fell on his shoulder while simulating an on-foot pursuit. His right shoulder \ninjury was accepted as compensable, and he received various treatments over the next few \nyears, ultimately having shoulder-replacement surgery in June of 2021. In January of 2018, \nhe took a position as Shift Commander for the LRPD’s Northwest Division. He continued to \nearn the same or more money in that role as he did before his injury. \n In October of 2021, the claimant retired from LRPD at the rank of Lieutenant. His \nretirement date was scheduled several years before his compensable injury when he \n\nTACKETT- G702582  \n4 \n \nenlisted in LRPD’s voluntary Deferred Retirement Option Plan (the DROP). At the time \nthat he enrolled in the DROP, the program set a participant’s retirement date seven years \nafter enrollment.  \nThe claimant testified that despite his retirement being required by participating in \nthe DROP, he had the option of separating for 90 days and then applying for rehire. He \nfurther testified that he believed being rehired would require completing a physical agility \ntest that consisted of running, jumping fences, dragging weighted dummies, and the like; \nhe did not believe that he could complete such testing because of the permanent limitations \nassociated with his shoulder injury. \n The claimant testified that he was earning $39.86 per hour, or about $82,908 per \nyear, at the time of his retirement. He stated that he also earned extra money though \nuniformed contract security work at local businesses and events. \n After retiring from LRPD, the claimant was rehired by the city as an Investigator in \nthe city’s Human Resources Department. He described the work as part-time, but it paid \n$35.00 per hour. In April of 2023, the claimant moved to Florida, where he continues to \nundergo authorized treatment by way of occasional injection therapy and/or physical \ntherapy. While he still experiences some pain in his shoulder, he is not being prescribed \npain medication.  \nHe currently maintains full-time employment with the University of West Florida’s \nCampus Police and Security Department, a job that he described as much less demanding \nthan his former roles with LRPD. “[I]n essence we’re a paid—a very well paid security \nguard. [sic] Our primary duties, they have a very non-existent call load. It’s locking up \nbuildings at night, letting somebody into an office that’s lost their keys or jump starting a \ncar. They just don’t—they don’t have a call load there.” [TR at 27.] His salary for that job is \n$50,000 per year. He also receives approximately $3,000 per month in retirement \n\nTACKETT- G702582  \n5 \n \npayments. In addition to his full-time work with the university, the claimant performs \ncontract work conducting background checks for government security contractors. Those \njobs involve telephone calls and computer work, and he estimates that work to earn about \n$35 per hour. The claimant did not relay any limitations in that work related to his injury. \nInstead, he testified, “I can pick and choose when I want to do it and how much, you know, I \ncan take on as far [as] a work load.” [TR at 40.] \nStill, he stated that he was concerned about being able to continue working in the \njob because of trouble he began having in his left arm, which he attributed to compensating \nfor difficulties with his right shoulder. At the time of the hearing, he had recently \nundergone a left wrist carpel tunnel procedure.  \n The claimant testified that at the time he entered the DROP, he anticipated being \nable to reapply with LRPD after the 90-day period and resume police work for the city, \nalong with the contract security work he would be able to do on the side. He explained: \nJudge:  ... So was it your understanding of the 90-day, and then, come back \nin your same position, would it be at the same level of pay? \n \nClaimant:  No, sir. You would have to come back the way regulations are \nwritten, you may have to start at entry-level position or you could be \nappointed by the Mayor or City Manager at a higher level, but it would have \nto be appointed by the— \n \nJudge:  A new hire for those purposes? \n \nClaimant:  Yes, sir. \n \n [TR at 30.] \nMajor Christina Plummer \n Major Plummer testified that she has been an LRPD employee for a little over 20 \nyears. She was familiar with the claimant’s injury and verified his testimony on his LRPD \nsalary. She confirmed that enrolling in the DROP is voluntary and that once enrolled, an \n\nTACKETT- G702582  \n6 \n \nemployee’s retirement is mandatory at the program’s end. She also confirmed a pre-\nemployment physical agility test for new hires. \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the pre-hearing conference, are outlined \nabove. It is settled that the Commission, with the benefit of being in the presence of the \nwitness and observing his or her demeanor, determines a witness’ credibility and the \nappropriate weight to accord their statements. See Wal-Mart Stores, Inc. v. VanWagner, \n337 Ark. 443, 448, 990 S.W.2d 522 (1999).   \n The claimant has been assigned, and the respondents have accepted, a permanent \nimpairment rating, which is a prerequisite for considering the effects of a compensable \ninjury in a claim for wage loss benefits. Wal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 10 \nS.W.3d 882 (2000). In considering a claim for wage loss benefits, the Commission must \nconsider evidence demonstrating the degree to which the worker’s impairment impacts his \nearning capacity, as well as other factors such as the worker’s age, education, work \nexperience, and other matters which may reasonably be expected to affect the worker’s \nfuture earning capacity. Ark. Code Ann. § 11-9-522(b)(1). Those other matters may include \nmotivation, post-injury income, credibility, and demeanor, among others. Glass v. Edens, \n233 Ark. 786, 346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 \nS.W.2d 946 (1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990). \n In this case, the claimant is a 62-year-old with a high school diploma, near \nassociate’s degree-level college credits, and extensive experience working in the policing \nand security fields. Much of his police experience is at the supervisory level with \nadministrative responsibilities. After sustaining his shoulder injury, the claimant \ntransferred from one supervisory position to another within LRPD and continued making \n\nTACKETT- G702582  \n7 \n \nthe same or more money in that role. His injury did not interrupt his being able to \nsuccessfully work to his pre-planned retirement date.  \n After reaching his retirement date, the claimant utilized his investigative and \nadministrative experience in an investigator job with the City of Little Rock. He earned \n$35.00 per hour working part-time, approximately 12% less than his pre-retirement full-\ntime wage rate. He did not explain his reason for leaving that role; but after moving to \nFlorida, he began earning $50,000 per year as a full-time officer at a public university \ncampus. He does not relate that work as being in-line with the duties and responsibilities of \neven a patrol officer at his former employer. The pay seems commensurate. The claimant \ndescribed the job as “very well paid” given the workload. He offered no testimony as to any \nother higher-responsibility jobs, commensurate with his years of supervisory experience, \nthat he applied for but was unable to secure because of his physical limitations. Absent any \nevidence towards his efforts in that regard, I am unable to make a determination on his \nwillingness to reenter the workplace at a level of responsibility and pay commensurate with \nhis pre-injury earnings.  \n The claimant also earns approximately $35.00 per hour performing background \nchecks for companies contracted in providing security clearances for government workers. \nHe described being able to assume as much of a case load in that role as he chooses, and did \nnot testify as to any limitations related to his shoulder injury. \n He continues to see an authorized provider in Florida, who anticipates performing \ninjection therapy up to twice a year; but he is not currently prescribed medication for his \nshoulder injury; and absent speculating that his recent left carpel tunnel procedure may \nhave been related to compensating for his right shoulder injury, he did not offer much \nexplanation as to how his injury limits his ability to function in the workplace and how \nthose limitations impact his ability to earn wages. \n\nTACKETT- G702582  \n8 \n \n Instead, the thrust of the claimant’s argument appears to be based on his belief that \nhad he not been injured, he would have eventually reapplied and been rehired with LRPD, \nand his speculation that his injury prevents him from being able to complete a pre-hire \nagility test for that employment. He also testified, however, that if he had gone down that \npost-retirement path, absent a special appointment from the mayor, he would have been \nhired back at an entry-level position and wage. \n It is not disputed that the claimant was assigned a 26% permanent impairment \nrating to the body as a whole and that rating was accepted and paid by the respondents. \nBased on the evidence before me, I do not find that the claimant sustained a wage-loss \nearning capacity in excess of his assigned and accepted permanent impairment rating. \nAccordingly, his claim for wage loss benefits must fail. Because he failed to meet his burden \non his claim for wage loss benefits, his claim for an attorney’s fee is moot. \nVI.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":14575,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G702582 NATHAN TACKETT, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED 8 OCTOBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge ...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["shoulder","wrist","back"],"fetchedAt":"2026-05-19T22:47:35.119Z"},{"id":"alj-H401004-2024-10-07","awccNumber":"H401004","decisionDate":"2024-10-07","decisionYear":2024,"opinionType":"alj","claimantName":"Martha Alcantar","employerName":"Kennametal, Inc","title":"ALCANTAR VS. KENNAMETAL, INC. AWCC# H401004 October 07, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ALCANTAR_MARTHA_H401004_20241007.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ALCANTAR_MARTHA_H401004_20241007.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H401004 \n \nMARTHA ALCANTAR, Employee                                                                   CLAIMANT \n \nKENNAMETAL, INC., Employer                                                               RESPONDENT \n \nSENTRY INSURANCE COMPANY, Carrier                                             RESPONDENT \n \n \n OPINION FILED OCTOBER 7, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On September  25,  2024,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on July 31, 2024 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The employee/employer/carrier  relationship  existed among  the  parties at all \nrelevant times. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Compensability of carpal tunnel syndrome. \n\nAlcantar – H401004 \n 2 \n2. Related medical. \n3. Temporary total disability benefits from January 7, 2024 through a date yet to  \nbe determined. \n4.   Statute of limitations. \n5.   Compensation rates. \n6.   Credit for disability benefits. \nAt the time of the hearing respondent reserved the issue of its entitlement to a \ncredit for disability benefits paid to claimant for short/long term disability. \n The claimant contends that she was working one job doing the same job everyday \nfor over ten years which led to severe carpal tunnel syndrome. \n The   respondents   contend   they   have   not   been   presented   with   evidence \nestablishing  the  existence  of  a  work-related  injury  (specific  incident  or  gradual  onset).  \nThe statute of limitations has run on claimant’s claim pursuant to Cottage Café  v. Collette. \n94 Ark. App. 72, 226 S.W. 3d 27 (2006) and La-Z-Boy  Manuf. v. Bruner, 2016 Ark. App. \n117, 484 S.W. 3d 700 (2016).\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non July 31, 2024 and contained in a pre-hearing order filed that same date are hereby \n\nAlcantar – H401004 \n \n3 \n \naccepted as fact. \n 2.   Claimant’s claim for compensation benefits is barred by the statute of \nlimitations.  A.C.A. §11-9-702(a)(1). \n \n FACTUAL BACKGROUND \n Claimant testified that she believes she  began working for respondent on July 16, \n2006.  She initially worked as a machine operator and for the last ten years worked in an \ninspection area.  At some point the claimant began having problems with both her hands \nand sought medical treatment from her primary care physician, Dr. Cheryl Fulton. \n Dr.  Fulton  initially  treated  claimant  with  medication  and  occupational  therapy \nbefore referring her to Dr. Johnson for an EMG/NCV study.  That testing was positive for \nbilateral  carpal  tunnel  syndrome.    According  to  claimant’s  testimony,  she  underwent \nsurgery on her right wrist on June 24, 2024. \n Claimant has filed this claim contending that she suffered a compensable injury in \nthe  form  of  bilateral  carpal  tunnel  syndrome.    She  seeks  payment  of  related  medical \nbenefits  as  well  as  temporary  total  disability  benefits  beginning  January  7,  2024,  and \ncontinuing through a date yet to be determined.  Also at issue is the claimant’s correct \ncompensation rate and respondent has raised as an issue the statute of limitations. \n \nADJUDICATION \n Claimant contends that she suffered a compensable injury in the form of bilateral \ncarpal tunnel syndrome as a result of her job activities with the respondent.  A claimant \nrequesting  workers’ compensation  benefits  for  a  gradual-onset  injury  must  prove by  a \npreponderance  of the evidence  (1)  the  injury  arose  out  of  and  in  the  course  of  her \n\nAlcantar – H401004 \n \n4 \n \nemployment;  (2)  the  injury  caused  internal  or  external  physical    harm  to  her  body  that \nrequired  medical  services  or  resulted  in  disability  or  death; and  (3)  the  injury  was  the \nmajor cause of the disability or need for treatment.  A.C.A. §11-9-102(4)(A)(ii) and (E)(ii).  \nBecause carpal tunnel syndrome is by definition a gradual onset injury, it is not necessary \nthat claimant prove that this injury was caused by rapid repetitive motion.  See Kildow v. \nBaldwin Piano & Organ, 333 Ark. 335, 969 S.W. 2d 190 (1998).   \n Here,  respondent  contends  that  claimant’s  claim  for  bilateral  carpal  tunnel \nsyndrome is barred by the statute of limitations.  A claim for compensation for disability \non account of an injury shall be barred unless filed with the Commission within two years \nfrom  the  date  of  the  compensable  injury.    A.C.A.  §11-9-702(a)(1).    The statute  of \nlimitations for gradual onset injuries, such as carpal tunnel syndrome, begins to run when \nthe  injury becomes apparent  to  the  claimant.     La-Z-Boy  Mfg.,  Inc. v.  Bruner, 216  Ark. \nApp. 117, 484 S.W. 3d 700; Pina v. Wal-Mart Stores, Inc., 91 Ark. App. 77, 208 S.W. 3d \n236 (2005); and Cottage Café, Inc. v. Collette, 94 Ark. App. 72, 226 S.W. 3d 27 (2006).  \nThe claimant’s awareness that her injury is causally related to the working environment \nis not an element of the inquiry.  Pina, 91 Ark. App. at 85, 208 S.W. 3d at 240. \n Claimant admitted on cross examination that she was aware at the end of 2021 \nthat she had problems with her hands and she related those problems to her work. \n  Q By the end of 2021, you had recognized in your mind \n  that you had problems with both of your hands that you were \n  feeling were work-related; right? \n \n  A Correct. \n \n  Q And it is true that the symptoms you told me about in \n  your deposition and that  you told us about here today \n  were present back in late 2021? \n\nAlcantar – H401004 \n \n5 \n \n \n  A Yes.  Yes. \n \n      *** \n \n  Q So by the time you developed symptoms in both \n  hands at the end of 2021, you were thinking it was related \n  to work?  You recognized it was related to work? \n \n  A Yes. \n \n      *** \n \n  Q One last time, you agree you were aware of your \n  condition in both hands as of November 2021; correct? \n \n  A Yes. \n \n  Q And you were attributing your problem to work at \n  Kennametal at that time? \n \n  A Yes. \n \n \n Even though claimant was aware of the problems with her hands in late 2021 and \nshe attributed those problems to her work activities with the respondent, claimant did not \nfile  a  claim  for  workers’ compensation  benefits  until  Form  AR-C  was  filed  by  Attorney \nMark  Peoples  on  claimant’s  behalf  on  April  8,  2024. (An Order  granting  Mr.  Peoples’ \nMotion to Withdraw was entered by the Full Commission on May 23, 2024.)  Clearly, this \nis more than two years after the injury became apparent to the claimant.  Since more than \ntwo years had passed, claimant’s claim is barred by the statute of limitations. \n Accordingly,   for   the foregoing   reasons,   I   find   that   claimant’s   claim   for \ncompensation benefits is barred by the statute of limitations.  Claimant’s injury became \napparent to her in late 2021 when she had problems with her hands and attributed those \nproblems  to  her  work  activities  with  the  respondent.    However,  claimant  did  not  file  a \n\nAlcantar – H401004 \n \n6 \n \nworkers’ compensation claim until April 8, 2024, more than two years later. \n \nORDER \n Claimant’s claim for compensation benefits is barred by the statute of limitations.  \nTherefore, her claim for compensation benefits is hereby denied and dismissed. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $379.50. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":8601,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401004 MARTHA ALCANTAR, Employee CLAIMANT KENNAMETAL, INC., Employer RESPONDENT SENTRY INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED OCTOBER 7, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["carpal tunnel","wrist","repetitive","back"],"fetchedAt":"2026-05-19T22:47:24.581Z"},{"id":"alj-H303057-2024-10-07","awccNumber":"H303057","decisionDate":"2024-10-07","decisionYear":2024,"opinionType":"alj","claimantName":"Wade Baker","employerName":"City Of Siloam Springs","title":"BAKER VS. CITY OF SILOAM SPRINGS AWCC# H303057 October 07, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BAKER_WADE_H303057_20241007.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAKER_WADE_H303057_20241007.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H303057 \n \nWADE A. BAKER,  Employee                                                              CLAIMANT \n \nCITY OF SILOAM SPRINGS, Employer                                                  RESPONDENT                                                              \n \nARKANSAS MUNICIPAL LEAGUE WCT, Carrier                                   RESPONDENT \n \n \n OPINION/ORDER FILED OCTOBER 7, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by MARY K. EDWARDS,  Attorney, No. Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On October  18,  2021,  claimant  suffered  a  compensable  injury  to  his  back  while \nworking  for  the  respondent.    On  May  16,  2023,  claimant,  through  his  attorney,  Lauri \nThomas, filed Form AR-C requesting additional compensation benefits.  In an Order dated \nSeptember  28,  2023,  a  change  of  physician  was  approved  to  Dr.  Blankenship.  \nThereafter, Attorney Thomas’ Motion to Withdraw as Counsel was granted by Order dated \nDecember 20, 2023. \nSince that time, no further action has been requested by the claimant.  On August \n5,  2024, respondent filed  a motion  to dismiss this  claim  for failure  to  prosecute.  \nRespondent sent by certified mail a copy of its’ Motion to Dismiss to the claimant and it \n\nBaker – H303057 \n \n2 \n \nwas delivered on August 15, 2024.   A hearing was scheduled on the respondent’s motion \nfor September 25, 2024.  Notice of the hearing was sent to claimant by certified mail and \nwas picked up by the claimant at the Post Office on August 30, 2024.   \nClaimant did not appear at the hearing and has not responded to the respondent’s \nmotion. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nmotion to dismiss this claim for failure to prosecute should be and hereby is granted.  This \ndismissal is pursuant to Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2415,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303057 WADE A. BAKER, Employee CLAIMANT CITY OF SILOAM SPRINGS, Employer RESPONDENT ARKANSAS MUNICIPAL LEAGUE WCT, Carrier RESPONDENT OPINION/ORDER FILED OCTOBER 7, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington C...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:47:26.713Z"},{"id":"alj-H301032-2024-10-07","awccNumber":"H301032","decisionDate":"2024-10-07","decisionYear":2024,"opinionType":"alj","claimantName":"Dewayne Walls","employerName":"Marmaduke Sch. Dist","title":"WALLS VS. MARMADUKE SCH. DIST. AWCC# H301032 & H303323 October 07, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WALLS_DEWAYNE_H301032_H303323_20241007.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALLS_DEWAYNE_H301032_H303323_20241007.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NOS. H301032 & H303323 \n \n \nDEWAYNE WALLS, EMPLOYEE CLAIMANT \n \nMARMADUKE SCH. DIST., \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCH. BDS. ASSN. \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED OCTOBER 7, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 4, 2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Jarrod  S.  Parrish,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  October 4,  2024,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  were  Commission  Exhibit  1  (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”)) and  Respondents’  Exhibit  1, \nforms, pleadings, reports, and correspondence related to this claim, consisting of \n27 and 16 pages, respectively. \n\nWALLS – H301032 & H303323 \n \n2 \n \n The record reflects the following procedural history: \n H301032.   Per  the  First  Report  of  Injury  or  Illness  filed on February  15, \n2023,  Claimant  purportedly suffered an injury to his left  foot at  work  on January \n27, 2023, when he was retrieving supplies from a storage room.  According to the \nForm AR-2 that was also filed on February 15, 2023, Respondents accepted the \nclaim and paid medical and indemnity benefits pursuant thereto. \n On May 23, 2023, through then-counsel Scott Hunter, Jr., Claimant filed a \nForm AR-C, requesting the full range of additional benefits in connection with an \ninjuries to his left foot that he allegedly suffered at work on January 26, 2023.  No \nhearing request accompanied this filing.  In a letter to the Commission dated May \n24, 2023, Respondents reiterated that they accepted the claim and have paid “all \nreasonable, necessary and authorized medical expenses and indemnity benefits” \nin connection with it. \n H303323.    Per  the  First  Report  of  Injury  or  Illness  filed  on  May 4,  2023, \nClaimant purportedly suffered an injury to his left shoulder at work on January 10, \n2023, when he reached for a door that was about to strike a student.  According to \nthe Form AR-2 that was filed on May 24, 2023, Respondents accepted the claim \nas a medical-only one and paid benefits pursuant thereto. \n On May 23, 2023, through then-counsel Hunter, Claimant filed a Form AR-\nC.  Therein, he alleged that he was entitled to the full range of additional benefits.  \nAs before, no hearing request accompanied this filing.  Respondents advised the \n\nWALLS – H301032 & H303323 \n \n3 \n \nCommission by letter on May 24, 2023, that they “have accepted this claim as \ncompensable,  and  all  reasonable,  necessary  and  authorized  medical  expenses \nand indemnity benefits have been paid.” \n The record reflects that nothing further took place on either claim until May \n1, 2024.  On that date, Respondents filed the instant motion, asking for dismissal \nof both claims under  AWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702  (Repl. \n2012).    My  office wrote  Claimant and  his  counsel on May 2,  2024,  asking  for  a \nresponse  to  the  motion within  20  days.   The  letter to  Claimant was  sent  by  first \nclass and certified mail to the Marmaduke address for him listed in the files and on \nhis  Forms AR-C.   In  response  to  this,  Hunter  wrote  the  Commission  on  May  16, \n2024,  requesting  a  hearing  on  both  claims.    Based  on  this  request,  I  took  the \nMotion   to   Dismiss   under   advisement   and   issued   preliminary   notices   and \nprehearing  questionnaires  to  the  parties  on  May  17,  2024.    Claimant  filed  his \npreliminary notice on June 3, 2024—two days late; Respondents’ notice, filed on \nMay 20, 2024, was timely. \n On June 13, 2024, Hunter’s office emailed me to state that they “have \nfound  that  this matter no  longer  requires a hearing and  request  that this  file  [sic] \nbe  returned  to  general  files  to  allow  the  parties  to  evaluate  the  possibility  of  the \nresolution of the claim [sic] as a whole.”  Respondent’s co-counsel  added  the \nfollowing:  “Respondents have no objection to this.  If we can’t get it resolved I will \n\nWALLS – H301032 & H303323 \n \n4 \n \nrequest it be reassigned to your honor to address our MTD [Motion to Dismiss].”  \nBased on this, I returned the files to the Commission’s general files. \n On  June  21,  2024,  Hunter  moved  to  withdraw  from  his  representation  of \nClaimant  in  both  claims.    In  an  Order  entered  on  July  10,  2024,  the  Full \nCommission granted the motion under AWCC Advisory 2003-2. \n On  July  19,  2024,  Respondents’  co-counsel   wrote   the   Clerk   of   the \nCommission,  asking  that  the  above-captioned  files  be  reassigned  to  me  for  the \npurpose of adjudicating the Motion to Dismiss.  The file was reassigned to me on \nJuly  22,  2024;  and on  July  23, 2024,  I  wrote  Claimant,  requesting a  response  to \nthe motion within 20 days.  This letter was sent via first-class and certified mail to \nthe same address that was used before.  In this instance, Claimant signed for the \ncertified  mailing  on  July  26,  2024;  and  the  first-class  letter  was  not  returned.  \nHowever, no response from him was forthcoming. \n On August 28, 2024, a hearing on the Motion to Dismiss was scheduled for \nOctober 4, 2024, at 1:00 p.m. at the Craighead County Courthouse in Jonesboro.  \nThe  notice  was  sent  to  Claimant  via  first-class  and  certified  mail to  the  same \naddress as  before.   The certified  letter was  claimed  by Claimant on August  30, \n2024; and as was the case previously, the first-class letter was not returned to the \nCommission. \n The hearing on the Motion to Dismiss proceeded as scheduled on October \n4,  2024.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \n\nWALLS – H301032 & H303323 \n \n5 \n \nappeared  through  counsel  and  argued  for  dismissal  under the  aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis two claims under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  these two claims for \nadditional  benefits are hereby  dismissed without  prejudice under \nAWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \n\nWALLS – H301032 & H303323 \n \n6 \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaims—by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant  has  failed  to  pursue  his two claims because  he  has  taken  no  further \naction  in  pursuit  of them (including  appearing  at  the October  4,  2024, hearing  to \nargue   against their dismissal)   since the prehearing   process   on   them   was \ncancelled at his request, and the files were returned to the Commission’s general \nfiles, on June 14, 2023.  Thus, the evidence preponderates that dismissal of both \nis warranted under Rule 13.  Because of this finding, it is unnecessary to address \nthe application of Ark. Code Ann. § 11-9-702(d) (Repl. 2012). \n That leaves the question of whether the dismissal of the claims should be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the appellate courts  have \n\nWALLS – H301032 & H303323 \n \n7 \n \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  these claims should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove,  these two claims for  additional  benefits are hereby  dismissed without \nprejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":9991,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NOS. H301032 & H303323 DEWAYNE WALLS, EMPLOYEE CLAIMANT MARMADUKE SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCH. BDS. ASSN. THIRD-PARTY ADM’R RESPONDENT OPINION FILED OCTOBER 7, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 4, ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:47:28.794Z"},{"id":"alj-H404420-2024-10-04","awccNumber":"H404420","decisionDate":"2024-10-04","decisionYear":2024,"opinionType":"alj","claimantName":"James Reese","employerName":"Mcdonalds Store 25829","title":"REECE VS. MCDONALDS STORE 25829 AWCC# H404420 October 04, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/REESE_JAMES_H404220_20241004.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REESE_JAMES_H404220_20241004.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H404420 \n \nJAMES F. REECE,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nMCDONALDS STORE 25829  \nEMPLOYER                                                                                                         RESPONDENT  \n \nARKANSAS MCDONALDS’ SELF-INSURED TRUST/ \nRISK MG’T RESOURCES, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED OCTOBER 4, 2024 \n \nHearing conducted on Thursday, October 3, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. James F. Reece, pro se, of Little Rock, Pulaski County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Jarrod Parrish, Wood & Parrish, Little Rock, \nPulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Thursday, October 3, 2024, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n        On August 9, 2024, the respondents filed with the Commission a motion to dismiss this claim \nwithout prejudice (MTD) pursuant to the aforementioned statute and Commission rule. Thereafter, \npursuant  to  the  applicable  law the  claimant was provided  due  and  legal  notice  of both the \nrespondents’ MTD, as well as notice of the subject hearing to his last known of address on record \nwith the Commission via the United States Postal Service (USPS), Certified Mail, Return Receipt \n\nJames F. Reece, AWCC No. H404420 \n2 \n \nRequested. Thereafter, the claimant failed and/or refused to respond to the subject MTD  and/or \nhearing notice in any way, and he failed and/or refused to appear  at the hearing. (Respondents’ \nExhibit; Hearing Transcript). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand/or attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d 287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has to date failed and/or refused to prosecute his claim. \n        Therefore, after a thorough consideration of the applicable law as applied to the facts of this \nclaim, the issues, and other relevant matters of record, as well as the representations of credible \ncounsel I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of the respondents’ motion to dismiss without \nprejudice filed with the  Commission on August 8, 2024, as well as notice of the subject \nhearing date, time, and place, the claimant failed and/or refused respond to the MTD, and \nhe failed and/or refused to appear at the subject hearing. Therefore, he is deemed to have \nwaived his right to a hearing on the respondents’ MTD herein.  \n \n3. The preponderance of the evidence compels the decision the respondents’ subject motion \nto  dismiss  without  prejudice  filed  August  8,  2024,  should  be  and  hereby is  GRANTED; \nand this claim hereby is dismissed without prejudice to its refiling pursuant to the deadlines \nprescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and Commission Rule 099.13. \n \n\nJames F. Reece, AWCC No. H404420 \n3 \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nJames F. Reece, AWCC No. H404420 \n4 \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":4929,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H404420 JAMES F. REECE, EMPLOYEE CLAIMANT MCDONALDS STORE 25829 EMPLOYER RESPONDENT ARKANSAS MCDONALDS’ SELF-INSURED TRUST/ RISK MG’T RESOURCES, INC. CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED OCTOBER 4, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:47:20.454Z"},{"id":"alj-H206562-2024-10-04","awccNumber":"H206562","decisionDate":"2024-10-04","decisionYear":2024,"opinionType":"alj","claimantName":"Earnest King","employerName":"Art Transport Inc","title":"KING VS. ART TRANSPORT INC AWCC# H206562 October 04, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/KING_EARNEST_H206562_20241004.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KING_EARNEST_H206562_20241004.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H206562 \n \nEARNEST KING, EMPLOYEE   CLAIMANT \n \nART TRANSPORT INC., EMPLOYER RESPONDENT \n \nAMTRUST NORTH AMERICA/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED OCTOBER 4, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas. \n \nRespondents are represented by WILLIAM C. FRYE, Attorney, North Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  November 15, 2022, claimant filed Form AR-C, alleging a compensable injury on March \n23, 2022.   Claimant was represented at the time by Matthew J. Ketcham, who remains his attorney of \nrecord.   \nOn April 26, 2024, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor  a  hearing  in  that  time.  Rather  than  setting  a  hearing  on  that  Motion  to  Dismiss,  a  Prehearing \nConference  was  conducted  and  the  parties  agreed  that  the  Motion  to  Dismiss  should  be  held  in \nabeyance  pending  the  outcome  of  the  hearing  on  the  merits.    That  hearing  was  scheduled  for \nSeptember 30, 2024, at 1:30 P.M.   Notice of the scheduled hearing was sent to claimant by certified \nmail  at  the  last known address in the Commission’s file.  The notice was  delivered  to  claimant  on \nAugust  2,  2024.  Claimant  did  not  appear  in  person  at  the  hearing  on September  30,  2024,  as  his \nattorney had asked for him to be excused and I agreed he did not have to appear.   \n\nKing-H206562 \n \n2 \n \nMr. Ketcham appeared at the hearing and advised that after this matter was filed, discovery \nrevealed  that  claimant  was  not  an employee  of  respondent  ART  Transportation,  but  rather  was \nworking as an independent contractor.  As such, he saw no need to proceed to the merits of the claim \nat the scheduled hearing.   \nMr. William Frye, attorney for respondents, then renewed his Motion to Dismiss which had \nbeen held in abeyance.  Mr. Ketcham did not object to it being presented at that time.  \nTherefore, based on my review of  respondent’s motion, the claimant’s lack of objection to it \nand all other matters properly before the Commission, I find that respondent’s Motion to Dismiss \nthis claim should be and hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and \nis without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2725,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206562 EARNEST KING, EMPLOYEE CLAIMANT ART TRANSPORT INC., EMPLOYER RESPONDENT AMTRUST NORTH AMERICA/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED OCTOBER 4, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian County, A...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:47:22.515Z"},{"id":"alj-H304034-2024-10-03","awccNumber":"H304034","decisionDate":"2024-10-03","decisionYear":2024,"opinionType":"alj","claimantName":"Athena Holland","employerName":"Tyson Poultry, Inc","title":"HOLLAND VS. TYSON POULTRY, INC. AWCC# H304034 October 03, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HOLLAND_ATHENA_H304034_20241003.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOLLAND_ATHENA_H304034_20241003.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H304034 \n \nATHENA C. HOLLAND,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nTYSON POULTRY, INC.,  \nSELF-INSURED EMPLOYER                                                                          RESPONDENT  \n                                                                                     \nTYSON POULTRY, INC./ \nTYNET CORP. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \nOPINION FILED OCTOBER 3, 2024, GRANTING THE CLAIMANT’S MOTION TO \nDISMISS WITHOUT PREJUDICE \n \n \nHearing conducted on Wednesday, October 2, 2024, before the Arkansas Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, \nat the claimant’s request in Little Rock, Pulaski County, Arkansas. \n \nThe claimant, Ms. Athena C. Holland, pro se, of Camden, Ouachita County, Arkansas, appeared \nin person at the hearing. \n \nThe respondents were represented by the Honorable J. Matthew Mauldin, The Roberts Law Firm \nU.S., P.C., Little Rock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Wednesday, October 2, 2024, to determine whether this claim \nshould  be  dismissed based upon the claimant’s own, voluntary request for a  dismissal  without \nprejudice pursuant   to Ark. Code   Ann. §   11-9-702(a)(4)   (2024 Lexis Replacement)   and \nCommission Rule 099.13 (2024 Lexis Replacement). \n        On August 8, 2024, the claimant filed with the Commission a motion to dismiss her claim \nwithout prejudice (MTD). (Claimant’s Exhibit 1). Thereafter, pursuant to the applicable law both \nthe claimant and the respondent were provided due and legal notice of both the claimant’s MTD, \nas  well  as notice  of the  subject  hearing to  the  parties’ last  known addresses on  record with  the \n\nAthena C. Holland, AWCC No. H304034 \n2 \n \nCommission,  the  receipt  of  which  both  parties  have  acknowledged by  their  appearance  at  and \nparticipation in the subject hearing. The claimant appeared in person at the hearing and explained \nthat because she currently is pursuing a claim against her employer in another forum and/or other \nfora, she voluntarily and of her own initiative requests her claim be dismissed without prejudice at \nthis time. \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission scheduled  and  conducted  a  hearing  on the \nclaimant’s voluntary MTD. Rather than recite a detailed analysis of the record, suffice it to say the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant does not intend nor desire to prosecute her claim at this time. \n        Therefore, after a thorough consideration of the applicable law as applied to the facts of this \nclaim, the issues, and other relevant matters of record, as  well as the claimant’s representations \nand/or testimony, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of the claimant’s voluntary motion to dismiss \nwithout prejudice filed with the Commission on August 8, 2024, as well as notice of the \nsubject hearing date, time, and place, the claimant appeared in person at the hearing and \naffirmed  she  wished  to  voluntarily  and  of  her  own  initiative  dismiss  her  claim  without \nprejudice at this time. \n \n\nAthena C. Holland, AWCC No. H304034 \n3 \n \n3. The preponderance of the evidence compels the decision that the claimant’s subject motion \nto  dismiss  without  prejudice  filed  August  8,  2024,  should  be  and  hereby is  GRANTED; \nand this claim hereby is dismissed without prejudice to its refiling pursuant to the deadlines \nprescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and Commission Rule 099.13. \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n\nAthena C. Holland, AWCC No. H304034 \n4 \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5183,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304034 ATHENA C. HOLLAND, EMPLOYEE CLAIMANT TYSON POULTRY, INC., SELF-INSURED EMPLOYER RESPONDENT TYSON POULTRY, INC./ TYNET CORP. CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 3, 2024, GRANTING THE CLAIMANT’S MOTION TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["affirmed:1","dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:47:14.085Z"},{"id":"alj-H400134-2024-10-03","awccNumber":"H400134","decisionDate":"2024-10-03","decisionYear":2024,"opinionType":"alj","claimantName":"Benjamin Willis","employerName":"Little Rock Hauling","title":"WILLIS VS. LITTLE ROCK HAULING AWCC# H400134 October 03, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Willis_Benjamin_H400134_20241003.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Willis_Benjamin_H400134_20241003.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H400134 \n \n \nBENJAMIN J. WILLIS, EMPLOYEE CLAIMANT \n \nLITTLE ROCK HAULING, \nEMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 3, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 3, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Jarrod  S.  Parrish,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on October  3,  2024, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  were Commission Exhibit  1 (see Ark.  Code  Ann. § 11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing . . . in a manner \nwhich  best  ascertains  the  rights  of  the  parties”) and  Respondents’  Exhibit  1, \nforms, pleadings, reports, and correspondence related to this claim, consisting of \nthirteen (13) and nine (9) pages, respectively. \n\nWILLIS – H400134 \n \n2 \n \n The record shows the following procedural history: \n On January  5,  2024, through  then-counsel Mark  Alan  Peoples, Claimant \nfiled  a  Form  AR-C, requesting  the  full  range  of initial  benefits in  connection  with \ninjuries to his neck, back, and right shoulder that he allegedly suffered at work on \nJuly 10, 2023, when he was riding as a passenger in a work truck.  .  No hearing \nrequest  accompanied this  filing.  Respondents’ counsel entered her appearance \non January 18, 2024, and  confirmed  that the  claim  was  being  controverted  in  its \nentirety. \n On March  6,  2024, Peoples moved  to  withdraw  from  his representation  of \nClaimant.  In an Order entered on April 10, 2024, the Full Commission granted the \nmotion under AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until July 5, \n2024.  On that date, Respondents filed the instant motion, asking for dismissal of \nthe  claim under  AWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702(a)(4)  (Repl. \n2012) because “Claimant has not sought any type of bona fide hearing before the \nWorkers’ Compensation Commission over the last six  months.”  My  office wrote \nClaimant on July 10,  2024,  asking  for  a  response  to  the  motion within  20  days.  \nThe  letter  was  sent by  first  class and  certified mail  to the Jacksonville,  Arkansas \naddress for him listed in the file and on the Form AR-C.  Claimant signed for the \ncertified  letter on  July  19,  2024; and the  first-class  letter  was  not  returned.  \nRegardless, no response from him to the motion was forthcoming.  On August 6, \n\nWILLIS – H400134 \n \n3 \n \n2024, a hearing on the Motion to Dismiss was scheduled for October 3, 2024, at \n9:30 a.m. at the Commission in Little Rock.  The notice was sent to Claimant via \nfirst-class  and  certified  mail to  the  same  address as  before.   In  this  instance, \n“Yolanda Willis” claimed the certified letter on August 8, 2024; and the first-class \nletter was, again, not returned. \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents appeared  through \ncounsel and argued for dismissal under the foregoing authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for initial  benefits is \nhereby dismissed without prejudice under AWCC R. 099.13. \n\nWILLIS – H400134 \n \n4 \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the October 3, 2024, hearing to argue against \nits dismissal)  since the filing  of  his Form  AR-C on January 5,  2024.    Thus,  the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, the argument made under § 11-9-702(a)(4) will not be addressed. \n\nWILLIS – H400134 \n \n5 \n \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":6963,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H400134 BENJAMIN J. WILLIS, EMPLOYEE CLAIMANT LITTLE ROCK HAULING, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED OCTOBER 3, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 3, 2024, in Little Ro...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["neck","back","shoulder"],"fetchedAt":"2026-05-19T22:47:16.236Z"},{"id":"alj-G305617-2024-10-03","awccNumber":"G305617","decisionDate":"2024-10-03","decisionYear":2024,"opinionType":"alj","claimantName":"Raphael Gunderman","employerName":"City Of Cabot","title":"GUNDERMAN VS. CITY OF CABOT AWCC# G305617 October 04, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GUNDERMAN_RAPHAEL_G305617_20241003.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GUNDERMAN_RAPHAEL_G305617_20241003.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G305617  \n \n \nRAPHAEL J. GUNDERMAN,  \nEMPLOYEE                                                   CLAIMANT \n \nCITY OF CABOT,  \nEMPLOYER                                                     RESPONDENT \n            \nARK. MUNICIPAL LEAGUE SELF-INSURED  \nWORKERS’ COMPENSATION PROGRAM/ \nARK. MUNICIPAL LEAGUE  \nINSURANCE CARRIER/TPA                                        RESPONDENT      \n                                   \n                                                                                                                                                                                                                                  \n \nOPINION FILED OCTOBER 4, 2024 \n \nHearing conducted on Wednesday, October 2, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas, 72203. \n \nThe claimant, Mr. Raphael J. Gunderman, of Cabot, Lonoke County, Arkansas, appeared pro se. \n \nThe respondents were represented by the Honorable Mary K. Edwards, attorney at law, Arkansas \nMunicipal League, Little Rock, Pulaski County, Arkansas. \n \n \nINTRODUCTION \nIn  the  prehearing  order  filed  September  13,  2024,  the  parties agreed  to  the  following \nstipulations, which they modified and affirmed on the record at the hearing: \n1. The   Arkansas   Workers’ Compensation   Commission   (the   Commission)   has \njurisdiction over this claim. \n \n2. The  employer/employee/carrier-TPA  relationship  existed at  all  relevant  times \nincluding July 17, 2013, when the claimant sustained an admittedly compensable \ninjury  to  his right  ankle/right  foot for  which  the  respondents  paid  medical  and \nindemnity benefits.  \n \n3. The claimant’s average weekly wage (AWW) was $657.20, which is sufficient to \nentitle him to weekly compensation rates of $438.00 for temporary total disability \n\nRaphael J. Gunderman, AWCC No. G305617 \n \n \n \n2 \n(TTD), and $329.00 for permanent partial disability (PPD) benefits. \n \n4. The respondents last paid TTD benefits on March 6, 2024, and last paid medical \nbenefits on July 29, 2024. \n \n5. The  respondents  have  controverted  this  claim for  additional  TTD  benefits in  its \nentirety.  \n  \n6. The  parties  specifically  reserve any  and  all  other  issues for future determination \nand/or litigation. \n \nThe parties agreed to correct and/or modify Stipulation No. 4 above to reflect the respondents last \n \npaid medical benefits on August 8, 2024. (Commission Exhibit 1 at 2; Hearing Transcript).  \n \n     Pursuant to the parties’ mutual agreement the issues to be litigated at the hearing were:  \n \n1. Whether the claimant’s request for additional benefits is barred by the applicable statute \nof limitations (S/L) of Ark. Code Ann. § 11-9-702 (2024 Lexis Replacement). \n \n2. If the claimant’s request  for  additional  TTD  benefits  is not barred  by  the  applicable \nS/L, whether and to what extent the claimant is entitled to additional TTD benefits.  \n \n3. If the claimant hires an attorney to represent him in this claim, whether and what extent \nthe claimant’s attorney is entitled to a controverted fee on these facts. \n \n(Comms’n Ex. 1 at 2-3; Hearing Tr.). The claimant also agreed on the record that the respondents’ \ncontentions his claim for additional medical and TTD benefits was in fact barred by the applicable \nS/L. \n        The  hearing  record  consists  of  the  hearing  transcript,  as  well  as any and  all exhibits \ncontained therein and/or attached thereto. \n \n\nRaphael J. Gunderman, AWCC No. G305617 \n \n \n \n3 \nSTATEMENT OF THE CASE \n In  the  prehearing  order  filed  September  13,  2024,  the  claimant had contended the \napplicable S/L did not  bar  his  request  for  additional medical  or TTD  benefits.  He had further \ncontended he was entitled to additional TTD benefits from on or about March 7, 2024, through a \ndate  yet  to  be  determined. However,  at  the  outset  of  the  hearing  in  his  initial  comments  on  the \nrecord wherein he stated his position at the hearing, the claimant advised the ALJ he now agreed \nwith  the  respondents  the  S/L  had  in  fact  run  and,  therefore,  he  had  decided  to  concede  the \napplicable S/L barred his claim for any additional medical or TTD benefits. Finally, the claimant \nadvised on the record at the hearing he was in fact receiving medical treatment on his right foot \nand ankle from time to time, and he had private health insurance which had been paying for his \nmedical treatment. (Comms’n Ex. 1 at 3; Hearing Tr.).  \n Of  course,  the respondents had contended the  claimant is  not  entitled  to  any  additional \nmedical or TTD benefits. On December 18, 2015, the claimant filed a Form AR-C for additional \nbenefits with the Commission; however, on the Form AR-C the claimant only checked the boxes \nindicating  he  was  requesting  PPD  benefits,  mileage,  and  out-of-pocket expenses,  and  he \nspecifically  failed  to  indicate  or  state  he  was  requesting  additional  TTD  or  medical  benefits. \nConsequently, the respondents contended that as their indemnity payment log demonstrates, there \nhave been gaps in the request for and payment of TTD benefits during the period from 2014-2015, \nand from 2015-2022. The respondents further contended, as their medical expenses payment log \nindicates,  there  also  have  been  gaps  in  the  claimant’s  medical  treatment  from  2017-2019. \nTherefore, they contended the applicable S/L ran on August 24, 2018, which they corrected and \n\nRaphael J. Gunderman, AWCC No. G305617 \n \n \n \n4 \nmodified on the record at the hearing to contend the S/L ran as of November 29, 2018. (Comms’n \nEx. 1 at 3; Hearing Tr.)  \n     Finally, the respondents ontended they do not owe any additional TTD or medical benefits. \nWhile the respondents  acknowledged they  continued  to  pay  for  medical  treatment  and TTD \nbenefits after the date the applicable S/L ran, they emphasized they are not asking for the claimant \nto repay those benefits. The respondents cited the Arkansas Court of Appeals holding in Slaughter \nv. City of Fayetteville, 2022 Ark. App. 139; 643 S.W.3d 809 (Ark. App. 2022), for the proposition \nthat even if a respondent continues to pay benefits after the date the S/L runs, this fact “does not \nrevive the statute of limitations on a claim that has already run.” Slaughter, 2022 Ark. App.  At \n137; 643 S.W.3d at 814. In addition, the respondents contend that any additional medical treatment \nthe claimant has received is not related to nor reasonably necessary in light of his July 17, 2013, \ncompensable right  ankle/right  foot injury. Finally,  the  respondents  reserved the  right  to  file  an \nAmended Response to the Prehearing Questionnaire or other appropriate  pleading and to allege \nany  further  affirmative  defense(s)  that  might  be  available  upon the  completion  of  any  and  all \nfurther investigation and/or discovery. (Comms’n Ex. 1 at 3-4; Hearing Tr.). \n     At the hearing, after the claimant conceded the applicable S/L barred his claim for additional \nmedical and TTD benefits the respondents’ attorney made a motion this claim should be dismissed \nwith prejudice. The claimant stated he did not object to the respondents’ motion and, therefore, the \nALJ granted it. (Hearing Tr.) \nDISCUSSION \n     The applicable S/L of Ark. Code Ann. Section 11-9-702(b)(1) (2024 Lexis Replacement) \n\nRaphael J. Gunderman, AWCC No. G305617 \n \n \n \n5 \n states: \n             In cases in which any compensation, including disability or \n             medical, has been paid on account of injury, a claim for additional \n             compensation shall be barred unless filed with the commission \n             within one (1) year from the date of the last payment of compen- \n             sation or two (2) years from the date of the injury, whichever is \n             greater. \n \nIn addition, as our court of appeals held in Slaughter, supra, it is well-settled in Arkansas workers’ \ncompensation law that the fact a respondent inadvertently pays medical and/or indemnity benefits \nafter the date the applicable S/L has run does not serve to resurrect a claim that is otherwise barred \nby the S/L. \n     The  totality  of  the  credible  evidence  of  record  herein – including  but  not  limited  to  the \nclaimant’s  candid,  sincere  recognition  and  admission  of  the  fact  his  claim  is  barred  by  the \napplicable S/L of Ark. Code Ann. Section 11-9-702(b)(1) – conclusively demonstrates his claim \nfor  additional  medical  and  TTD  benefits  is  so  barred. Moreover,  the  totality  of  the  credible \nevidence of record conclusively demonstrates this claim for additional medical and TTD benefits \nshould be dismissed with prejudice pursuant to the respondents’ oral motion made at the hearing, \nto which the claimant expressly stated he had no objection. (Hearing Tr.; Respondents’ Exhibit 1; \nRespondents’ Exhibit 2). \n     Therefore, for all the aforementioned reasons I hereby make the following:                              \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The  stipulations  to  which  the  parties  agreed  in  the  prehearing  order  filed \nSeptember 13, 2024, which the parties’ corrected and modified on the record at \n\nRaphael J. Gunderman, AWCC No. G305617 \n \n \n \n6 \nthe hearing, hereby are accepted as facts.  \n \n2. The claimant voluntarily and of his own accord, and in the absence of any duress \nor coercion whatsoever, honestly and sincerely conceded his claim for additional \nmedical  and  TTD  benefits  herein  is  barred  by  the  applicable  S/L  of Ark.  Code \nAnn. Section  11-9-702(b)(1).  Therefore,  consistent  with  the  applicable  law,  the \nclaim is so barred.  \n \n3. The claimant’s claim for additional medical and TTD benefits hereby is denied \nand dismissed with prejudice.  \n \n     IT IS SO ORDERED.                       \n              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":10098,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G305617 RAPHAEL J. GUNDERMAN, EMPLOYEE CLAIMANT CITY OF CABOT, EMPLOYER RESPONDENT ARK. MUNICIPAL LEAGUE SELF-INSURED WORKERS’ COMPENSATION PROGRAM/ ARK. MUNICIPAL LEAGUE INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 4, 2024 Hearing conducted on We...","outcome":"dismissed","outcomeKeywords":["modified:1","dismissed:3","granted:1","denied:1"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:47:18.378Z"},{"id":"alj-H304951-2024-10-02","awccNumber":"H304951","decisionDate":"2024-10-02","decisionYear":2024,"opinionType":"alj","claimantName":"Robert Herdison","employerName":"Drivers Select, Inc","title":"HERDISON VS. DRIVERS SELECT, INC. AWCC# H304951 October 02, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HERDISON_ROBERT_H304951_20241002.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HERDISON_ROBERT_H304951_20241002.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H304951 \n \nROBERT HERDISON, Employee CLAIMANT \n \nDRIVERS SELECT, INC., Employer RESPONDENT \n \nSEDWICK CLAIMS MANAGEMENT, Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 2, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On July  25,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on April 29, 2024, and a Pre-hearing Order \nwas filed on April 30, 2024.   A copy of the Pre-hearing Order has been  marked Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on June 22, \n2023. \n 3. The respondents have controverted the claim in its entirety. \n\nHerdison – H304951 \n \n-2- \n 4. The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $371.00 for temporary total disability benefits and $278.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to his cervical, thoracic, and lumbar \nspine on or about June 22, 2023. \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for  his  compensable  cervical, \nthoracic, and lumbar spine injuries. \n 3. Whether Claimant is entitled to temporary total disability benefits from June 23, 2024, \nto a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“On  or  about  6/22/2023,  the  claimant  was  involved  in  a  motor \nvehicle  accident  in  the  scope  and  course  of  employment.  As  a \nresult  of  the  accident,  the  claimant  sustained  injuries  to  multiple \nbody  parts,  including  his  head,  neck,  back,  left  leg,  left  foot  and \nright  arm.  Respondents  denied  the  claim  in its entirety.  The \nClaimant  sought  treatment  on  his  own.  An  MRI  to  the  thoracic \nspine  revealed  disk  protrusions  to  T8,  9,  and  10.  And  MRI  to  the \nlumbar spine revealed protrusions at L3-4 and L4-5. An MRI to the \ncervical spine revealed bulging at C4-5 and C5-6 and a protrusion \nat   C6-7.   As   a   result,   claimant   underwent   a   cervical   spine \ndiskectomy  and  fusion  surgery  from  C5  to  C7  on  November  18, \n2023. \n \nClaimant  contends  that  he  sustained  compensable  injuries  to  his \nneck and back in the scope and course of employment and that he \nis  entitled  to  TTD,  medical  benefits,  and  that  his  attorney  is \nentitled to an attorney fee. All other issues are reserved.” \n \n The respondents’ contentions are as follows: \n\nHerdison – H304951 \n \n-3- \n“Respondents   contend   that   the   claimant   was   not   performing \nemployment  services  at  the  time  of  his  injury  on  June  22,  2023. \nThe claimant had completed his job responsibilities for the day and \nwas  no  longer  driving  for  Drivers  Select,  he  was  not  performing \nemployment services, and he was not earning wages when he was \nthe  passenger  in  a  co-worker’s  vehicle  that  was  involved  in  a \nmotor vehicle accident.” \n \n The  claimant  in  this  matter  is  a 53-year-old  male who  alleges  to  have  sustained \ncompensable injuries to his cervical, thoracic, and lumbar spine on or about June 22, 2023. The \nclaimant  has  also  requested  medical  treatment  for  those  injuries as  well  as temporary  total \ndisability benefits. However, upon my review of the evidence in this matter, it is certain that the \ncentral issue is compensability of those alleged injuries. More specifically, whether the claimant \nwas  performing  employment  services  at  the  time  of  a  June  22,  2023,  motor  vehicle  accident in \nwhich  the  claimant  was  involved.  The  respondent/employer  in  this  matter  is  somewhat  of  a \nunique type of employer, in that the respondent/employer is much like a temporary employment \nagency but deals specifically with the moving of semi tractor trailers. The respondent’s business \nmodel  is  to  bid  on  jobs  to  move  semi  tractor  trailers  from  one  location  to  another.  They  use \ntemporary  employees  as  their  labor  source.  These  movements  of  semi  tractor  trailers  could  be \nacross the country movements or just movements from 10 to 80 miles. \n The  claimant  in  this  matter  gave  testimony  about  his  employment  with  the  respondent \nwhich began roughly one month before his June 22, 2023, motor vehicle accident. The claimant \nwas  asked  on  direct  examination  about  the  job  he  had  accepted  with  the respondent before  the \njob  in  which  he  alleges  to  have  sustained  a  compensable  injury  on  June  22,  2023.  That  job \nrequired the claimant  and several other  employees to go to Colorado Springs, Colorado.  In that \njob  the  claimant  and  other  employees  were  transported  to  Mobile,  Alabama.  At  that  point  they \npicked  up  and  drove  several  semi  tractor  trailers  to  Colorado  Springs,  Colorado.  When  they \n\nHerdison – H304951 \n \n-4- \nreached  their  destination  some  of  the  men,  including  the  claimant,  drove  semi  tractor  trailers \nback to Mobile, Alabama. At that point the claimant got into a “chase car” that brought him back \nto  Arkansas.  It  appears  from  testimony  that  a  chase  car  is  used  to  move  the  semi  tractor  trailer \ndrivers  between  locations  when  needed.  The  claimant concluded this  engagement  with the \nrespondent without any incident. \n It is the claimant’s next employment with the respondent that he alleges to have sustained \ncompensable injuries to his cervical, thoracic and lumbar spine. \n On  that  day  the  claimant  was  contacted  by  Abigail  Robertson,  who  is  the  driver \ndispatcher  manager  for  the  respondent  and  has  been  since  December  2020.  Abigail  Robertson \ngoes by the name of Abby, and I will refer to her as such. On June 22, 2023, Abby contacted the \nclaimant  and  at  least  one  other  temporary  employee  to  provide  employment  services  to  move \nsemi  tractor  trailers  from  Van  Buren  to  Rogers,  Arkansas.  However,  after  her  initial  contact  to \nthe temporary employees including the claimant a change in the job status had occurred. Initially, \nthere  was  a  need  for  a  chase  car;  however,  the  new  instructions  did  not  include  that  chase  car \nneed. Abby testified that she was unable to reach the temporary employees before they arrived at \nthe  respondent’s  Fort  Smith  office.  However, after they  arrived,  they  were  informed  of the \nchange. The respondent informed them that there would be no need for a chase car and that they \nshould  go  to  a  well-known  place  in  Van  Buren  called  MHC  to  pick  up  the  semi  tractor  trailers \nand move them to Rogers. At which point, a second vehicle would retrieve them and take them \nto a location in Springdale to pick up a semi tractor trailer and return it to their starting point in \nVan Buren known as MHC. \n The  claimant  had  issue  with  this  new  development  in  that  he  was  lacking  in  gasoline  in \nhis personal vehicle in order to get to the job site in Van Buren to pick up the semi tractor trailer \n\nHerdison – H304951 \n \n-5- \nand  begin  the  job.  The  respondent  did  specifically  recommend  that  he  ride  with  another \ntemporary employee named Jody, who was assigned to the same job. I note that throughout the \ncourse  of  testimony  Jody  is  identified  no  further  than  Jody.  The  claimant  associated  or  named \nhim as Joe; however, according to the respondent his name was Jody. No one at the time of the \nhearing  was  aware  of  his  last  name.  Apparently,  Jody  agreed  to  give  the  claimant  a  ride  to  the \nVan Buren MHC facility to pick up the semi tractor trailers and as such begin working that day. \nAs previously stated, the men completed the run and returned to the MHC facility in Van Buren. \nAt that time, they sent photos via text message to the respondent to show the arrival of the semi \ntractor  trailers.  However,  the  claimant  still  needed  to  return  to  his  gasoline  deficient  personal \nautomobile.  It  is  during  that  return  that  the  claimant  and  Jody,  who  gave  him  a  ride,  were \ninvolved in a motor vehicle accident in which they were hit by another driver from behind in a \nseparate vehicle. \n The central question is whether the claimant was performing employment services at the \ntime of his motor vehicle accident. \nA compensable injury is defined, in part, as an accidental injury which arises out of an in \nthe course of employment. A.C.A.§ 11-9-102(4)(A)(I). However, a compensable injury does not \ninclude an injury “inflicted upon the employee at a time when employment services were not \nbeing  performed.”  A.C.A.  §11-9-102(4)(B)(iii).   An   employee   is   performing   employment \nservices  when  they  are  doing  something  that  is  generally  required  by  his  or  her  employer. \nContinental Construction Co. v. Nabors, 2015 Ark. App. 60, 454 S.W.3d 762; White v. Georgia-\nPacific Corp., 339 Ark. 474, 478, 6 S.W.3d 98, 100 (1999). The same test is used to determine \nwhether  an  employee  is  performing  employment  services  as  is  used  when  determining  whether \nan employee is acting within the course and scope of employment. The test is whether the injury \n\nHerdison – H304951 \n \n-6- \noccurred  within  the  time  and  space  boundaries  of  the  employment,  when  the  employee  was \ncarrying  out  the  employer’s  purpose  or  advancing  the  employer’s  interest  either  directly  or \nindirectly. Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1 (2002). \n The  Arkansas  Court  of  Appeals  determined  in Linton v. Ark. Dep’t of Corrections,  87 \nArk  App.  263,  190  S.W. 3d  275  (2004)  that  an  employee  who  was  injured  while  traveling  to  a \nrequired meeting at a normal place of work on the claimant’s day off was properly denied \nworkers’ compensation benefits. The Court stated, “merely traveling to and from the workplace \nwas not a covered activity under the workers’ compensation statutes.” \n In  the  present  matter  it  is  clear  that  the  claimant  was  traveling  to  retrieve  his  personal \nvehicle  that  he  would  have  driven  to  the  Van  Buren  MHC  location  had  he  not  been  unable  to \nbecause of a lack of gasoline in his personal vehicle. \n The claimant did provide testimony that it was his belief that he had to return to the Fort \nSmith office of the respondent to complete his work duties. I note that this is the same location \nthat the claimant’s personal vehicle was located with a lack of gasoline. Testimony provided by \nboth Jennifer Powell, the respondent’s assistant manager of operations, who also  served  as  the \nhuman  resources  manager,  along  with  Abby,  the  driver  dispatch  manager,  showed  the  claimant \nhad no reason to return to the Fort Smith office of the respondent. It was pointed out that the job \nof the claimant was a bid job and that no timesheets were required to be completed. Essentially \nthe claimant’s job was completed when he sent the photographs of the truck being returned to the \nMHC facility to the respondent.  \n Given the testimony and evidence before the Commission I find that the claimant was not \nperforming  employment  services  at  the  time  of  his  June  22,  2023,  motor  vehicle  accident,  but \nwas instead retrieving his personal vehicle that  was low on gasoline. Given that the claimant is \n\nHerdison – H304951 \n \n-7- \nunable  to  prove  that  he  was  providing  employment  services  at  the  time  of  the  motor  vehicle \naccident,  the  claimant  is  unable  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained \ncompensable  injuries  to  his  cervical,  thoracic  and  lumbar  spine  as  he  has  alleged  on  June  22, \n2023, in a motor vehicle accident. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 29, 2024, and contained in a Pre-hearing Order filed April 30, 2024, are hereby accepted as \nfact. \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained \ncompensable injuries to his cervical, thoracic and lumbar spine on or about June 22, 2023. \n 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto medical treatment for his alleged compensable cervical, thoracic and lumbar spine injuries. \n 4. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto temporary total disability benefits from June 23, 2023, to a date yet to be determined. \n 5. The claimant has failed to prove by a preponderance of the evidence that his attorney is \nentitled to an attorney’s fee in this matter. \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \n\nHerdison – H304951 \n \n-8- \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":14342,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H304951 ROBERT HERDISON, Employee CLAIMANT DRIVERS SELECT, INC., Employer RESPONDENT SEDWICK CLAIMS MANAGEMENT, Carrier RESPONDENT OPINION FILED OCTOBER 2, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas....","outcome":"denied","outcomeKeywords":["granted:1","denied:4"],"injuryKeywords":["cervical","thoracic","lumbar","neck","back"],"fetchedAt":"2026-05-19T22:47:07.801Z"},{"id":"alj-H401408-2024-10-02","awccNumber":"H401408","decisionDate":"2024-10-02","decisionYear":2024,"opinionType":"alj","claimantName":"Michael Murray","employerName":"Metro Towing & Recovery","title":"MURRAY VS. METRO TOWING & RECOVERY AWCC# H401408 October 02, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MURRAY_MICHAEL_E_H401408_20241002.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MURRAY_MICHAEL_E_H401408_20241002.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H401408 \n \nMICHAEL E. MURRAY, EMPLOYEE       CLAIMANT \n \nMETRO TOWING & RECOVERY, EMPLOYER         RESPONDENT \n \nNORGUARD INSURANCE COMPANY/ \nGUARD INSURANCE COMPANIES, CARRIER/TPA           RESPONDENT \n  \n \n \nOPINION FILED 2 OCTOBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 2 October 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nBarber Law Firm, Ms. Karen McKinney, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 2 October 2024. This case relates to an alleged workplace injury, \nsustained on or about 23 December 2023. The claimant filed a Form AR-C on 26 February \n2024, stating a back injury after bending over on the job. A First Report of Injury was filed \non 29 February 2024, and a Form AR-2 denying the claim was filed on 12 March 2024. See \nRespondents’ Exhibit No 1. \n The respondents attempted to move forward with discovery, but found the claimant \nto not be responsive to those requests. Id. On 2 August 2024, the respondents requested a \ndismissal of this matter for the claimant’s failure to prosecute the claim. Letters providing \nnotice of that motion and notice of the hearing were sent to the claimant, consistent with \nthe Commission’s practice. See Respondents’ Exhibit No. 2. I noted at the hearing that \nmailings from the Commission to claimants are sent via both First Class and Certified Mail \n\nM. MURRAY- H401408 \n2 \n \nwith return receipts requested. Returned mail is regularly appended to the Commission’s \nfile. The Commission’s file includes only the return of one Certified Mailing, which notes it \nas unclaimed. In reviewing the file before the hearing, I found a report from the Legal \nAdvisors Division that recapitulated a phone discussion with the claimant on 17 September \n2024. See Commission’s Exhibit No. 1. That report indicates that the claimant is presently \nworking at a new job and does not wish to pursue his claim at this time. The possibility of \nthe claimant refiling a Form AR-C and requesting a hearing is also noted in the report. \nThe respondents appeared on 2 October 2024, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of their \nmotion. And, consistent with the note entered into the file by the Legal Advisors Division, \nthe claimant did not appear at the hearing to resist the dismissal of this claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3381,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H401408 MICHAEL E. MURRAY, EMPLOYEE CLAIMANT METRO TOWING & RECOVERY, EMPLOYER RESPONDENT NORGUARD INSURANCE COMPANY/ GUARD INSURANCE COMPANIES, CARRIER/TPA RESPONDENT OPINION FILED 2 OCTOBER 2024 Heard before Arkansas Workers’ Compensation Commission (A...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:47:09.935Z"},{"id":"alj-H208285-2024-10-02","awccNumber":"H208285","decisionDate":"2024-10-02","decisionYear":2024,"opinionType":"alj","claimantName":"Teresa Wright","employerName":"Lowes Home Centers LLC","title":"WRIGHT VS. LOWES HOME CENTERS LLC AWCC# H208285 October 02, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Wright_Teresa_H208285_20241002.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Wright_Teresa_H208285_20241002.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208285 \n \nTERESA A. WRIGHT, EMPLOYEE CLAIMANT \n \nLOWES HOME CENTERS LLC, \nSELF-INSURED EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT, \nTHIRD-PARTY ADMINISTRATOR RESPONDENT \n \nOPINION FILED OCTOBER 2, 2024 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on August 27,  2024,  in  Little  Rock, \nArkansas. \n \nClaimant was represented by Mr. Mark Alan Peoples, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented by Mr. Randy P. Murphy, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  full  hearing  was  held  on  this  claim  on August 27,  2024.    A  prehearing  telephone \nconference  took  place  on April  10,  2024.  A  prehearing  order  was  entered  on  that  date  and \nsubsequently  entered  into  evidence,  with  amendments  by  the  parties,  as Commission  Exhibit  1. \nThe parties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. The employer/employee/carrier  relationship  existed  among  the  parties  on \nSeptember 20, 2022, when Claimant sustained compensable injuries to her \nright shoulder, arm, elbow, neck and back. \n \n \n \n \n \n \n\nWRIGHT H208285 \n \n \n2 \n \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1. Whether Claimant is entitled to additional reasonable and necessary medical treatment, \nspecifically a cervical anterior fusion for the C5-C6-C7.\n1\n \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s Contentions:  The  Claimant  contends  that she sustained work  injuries to  her \nright shoulder, right arm, right elbow, neck, and back on September 20, 2022. That she is entitled \nto medical treatment, temporary partial disability benefits due to work hours being reduced, and a \ncontroverted attorney’s fee at maximum statutory rate.  \nRespondents’ Contentions: Respondents  contend that  Claimant  has  received  appropriate \nbenefits for the compensable injury.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary record, I hereby make the following Findings of Fact and Conclusions of Law in accordance \nwith Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant has proven, and I find by the preponderance of the evidence that Claimant \nhas proven that a cervical anterior fusion for her C5-C6, not her C6-C7, is reasonable \nand necessary medical treatment for her compensable neck injury. \n \n \n \n \n1\n The issues of temporary total disability benefits and controverted attorney’s fee has \nbeen reserved by the Claimant during the hearing. The Claimant also specified what medical \ntreatment is being sought, a cervical anterior fusion for the C5-C6-C7. \n\nWRIGHT H208285 \n \n \n3 \n \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, Medical Records, that consists of 51 pages, \nRespondents’ Exhibit 1, medical  records,  that  consist  of 1383 pages\n2\n, Respondents’ Exhibit 2, \nvideo of Claimant, and Commission Exhibit 1, Pre-Hearing Order, that consists of 5 pages. Forms \nAR-C and AR-1 blue-backed and made a part of this record. The Claimant was the only witness \ntestifying in the full hearing.  \nClaimant  was employed  as a Merchandiser/Stocker for  the  Respondent/Employer. On \nSeptember 20, 2022, Claimant was moving a metal beam that supports top stock items from one \narea to another with a co-worker. While ascending a ladder, approximately 15 feet high, to hang a \nsupport  beam  with  the  co-worker,  the  co-worker,  unbeknownst  to  Claimant, dropped  the  beam \ncausing the full weight of the 75-to-100-pound metal beam to pull down, in a jerking manner, on \nthe right arm, shoulder, and neck of the Claimant. Due to the tearing in Claimant’s right arm and \nshoulder, her fingers would not let go of the beam causing continuous strain on her arm, shoulder, \nand neck. The Claimant needed assistance to release her fingers from the metal beam. Trans. p. \n18,  lines  7-25,  to  page  19,  lines  1-5. The  Claimant  went  to  the  emergency  room  at  the  Baptist \nHospital  in  North  Little  Rock  on  September  20,  2022.  During  the  physical  examination  it  was \n \n2\n The Respondents submitted a 1,383-page medical record which was largely irrelevant to \nthe issue concerning the cervical spine and was also in violation of my order. The Respondents \nblatantly ignored the portion of my order that reads “Any medical exhibit exceeding fifty (50) \npages must be abstracted.” The voluminous 1,383-page record was not abstracted. Moreover, the \nmedical records were to be “indexed by medical provider” and be “chronologically arranged” not \n“grouped” by medical provider with no specific identifiable page index for each treatment date. \nRespondents are put on notice, as a courtesy, that if this occurs again, I will not admit his client’s \nexhibit into evidence. \n\nWRIGHT H208285 \n \n \n4 \n \n \nnoted that her cervical back had a normal range of motion and that her neck was supple, meaning \nno limitation of motion. Resp. Ex. 1, p. 35.  \nClaimant on October 19, 2022, during a follow-up visit with Ortho Arkansas did complain \nabout pain radiating from her shoulder into her neck. Resp. Ex. 1, pp. 539-541. During the physical \nexam, no  neck  findings  were  recorded. Id. However,  on  January  30,  2023,  an  MRI  scan  was \nperformed on Claimant that revealed a small disc protrusion with mild spinal canal stenosis. Cl. \nEx. 1, pp. 10-11. There was also a mild uncovertebral hypertrophy and facet arthropathy with mild \nneural foramen stenosis. Id. The MRI report further revealed a central disc protrusion at the C4-\nC5 with mild spinal canal stenosis. Id. There was also a mild facet arthropathy, asymmetric to the \nleft,  but  no  significant  neural  foramen  stenosis. Id. There  was  also  a  broad-based  posterior  disc \nprotrusion  at  C5-C6  along  with  a  mild  ligamentum  flavum  thickening. Id. There  was  a \ncircumferential  disc  bulge  at  the  C6-C7  with  mild  spinal  canal  stenosis  and  effacement  of  CSF \nventral to the cord. Id. There was also an uncovertebral hypertrophy facet arthropathy, worse on \nthe left. Id. There was a moderate right and severe left neural foramen stenosis. Id. Based on this \nMRI  scan  the  Claimant  was  refereed  to  Dr.  Edward  Saer,  a  spine  surgeon  specialist, at  Ortho \nArkansas. Dr.  Saer  noted  in  his  assessment/plan  that  Claimant  has  undergone  some  physical \ntherapy  for  her shoulder,  and  she  claims that treatment  has made her  neck  pain  worse  and \nheadaches worse. Claimant Ex. 1, p. 14. Dr. Saer further noted that her neck is not “really tender \nto palpation except in the midline in the cervical thoracic area.” Id. Dr. Saer noted the January 30, \n2023, MRI and recognized the central disc bulge at C5-C6 that abuts but does not compress the \ncord. Id. He further noted the foraminal narrowing at C6-C7 on the left. Id. Otherwise, Claimant \nhas mild degenerative changes that are relatively normal. Id. Dr. Saer diagnosed her with cervical \nstrain/sprain and referred her for physical therapy. Id.  \n\nWRIGHT H208285 \n \n \n5 \n \n \nOn March 28, 2023, the Claimant had a follow-up visit with Dr. Saer, after her physical \ntherapy treatment, to discuss her neck pain. Claimant’s Ex. 1, p. 16. The Claimant believed that \nthe physical therapy helped but she is still having pain. Id.  Dr. Saer reviewed her imaging with \nher  and  explained  that  the  problem  is  not  with  the  bulging  disc  in  her  neck,  rather  she  has  soft \ntissue strain or sprain that is causing her pain. Id. Dr. Saer ordered her more physical therapy for \nher neck. Id. On April 29, 2023, the Claimant had another follow-up with Dr. Saer where she states \nshe  was  improving  while  undergoing  physical  therapy  on  her  cervical  spine  and  right  shoulder \nuntil the therapy stopped. Claimant’s Ex. 1, p. 21. Claimant stated that she feels like her shoulder \nis tightening up again and she is having more pain in her neck and headaches again. Id. Dr. Saer \nshowed her how to do cervical isometrics, but Claimant feels that she is not able to do them one \nhanded. Id. Dr. Saer stated in his note that there is not much else that he can do for her neck. Id.  \nOn  June  27,  2023,  Claimant  had  another  follow-up  with  Dr.  Saer  where  she  expressed \ncontinued discomfort with her neck. Claimant’s Ex. 1, p. 26. Claimant states that some of her pain \nradiates  over  the  right  scapular  area. Id. The  Claimant  was  in  a  sling  for  a  while  following  her \nsurgery, but claims wearing the sling aggravated her cervical complaints. Id. Dr. Saer noted that \ncervical  motion  was  good  in  all  directions  although  she  has  some  pain  and  there  were  no  acute \nspasms. Id. Dr.  Saer  again  referred  Claimant  to  cervical  physical  therapy  to  try  and  strengthen \nsome of her cervical muscles. Id.   \nOn September 7, 2023, Claimant had another follow-up with Dr. Saer where she claims to \nstill have pain in her neck that goes up to her head, with constant headaches. Resp. Ex. 1, p. 640. \nDuring this visit Dr. Saer noted that the Claimant is literally in tears because she is in so much pain \nand cannot sleep at night. Id. Dr. Saer ordered another MRI but noted that he does not believe the \npain  is  likely  related  to  a  nonstructural  problem. Id.  Dr.  Saer  wants  the  Claimant  to  continue \n\nWRIGHT H208285 \n \n \n6 \n \n \nworking  on  strengthening  her  upper  extremity. Id.    The  Claimant  received  another  MRI  on \nSeptember 26, 2023, from Chenal MRI. Claimant’s Ex. 1, pp. 38-39. The  MRI  revealed  the \nfollowing impression: \n1. Multilevel degenerative disease. \n2. Severe left foraminal stenosis at C6-7. \n3. Moderate foraminal stenoses on the left at C3-4 and on the right at C6-7. \n4. Mild foraminal stenoses at C3-4, C4-5, C5-6, and C6-7. \n5. Broad central protrusion type disc herniation at C3-4, with contact of the left ventral \ncord. \n6. No evidence of cord contusion, epidural hematoma, compression fracture, or ligament \ndisruption.  \nId. \nOn October 2, 2023, Claimant again followed-up with Dr. Saer to report that since her last \nvisit  she  has  been  feeling  the  same.  Claimant’s Ex. 1, p. 43. Claimant requested  a  change  of \nphysician on November 29, 2023, and it was approved on January 9, 2024, for Claimant to start \nseeing Dr. Reza Shahim. The Claimant saw Dr. Reza Shahim on January 4, 2024. Claimant’s Ex. \n1, pp. 45-49. Dr. Shahim reviewed the previous MRI cervical spine that shows cervical spondylosis \nwith stenosis at the C5-6 and C6-7. Id. Dr. Shahim noted that the Claimant does have a cervical \ndisc  injury  at  C5-6  and  some  degrees  of  C6-7. Id.  Dr.  Shahim  recommends  that  Claimant  go \nthrough  a  series  of  cervical  injections  in  preparation  for  possible  surgical  intervention. Id.  Dr. \nShahim recommended a treatment option of anterior cervical fusion with potential complications \nexplained. Id. The Claimant wants a C5-6 anterior fusion and if necessary, a possible C6-7 anterior \nfusion.  \nThe  Respondents  deny  this  treatment  as  unnecessary and unreasonable. To  bolster  its \nclaim, the Respondents retained two consulting experts, Dr. Owen Kelly and Dr. Shane McAlister, \nto review the Claimant’s medical records and provide an opinion regarding the causation of the \nproposed  surgery  to  the work-related injury.  Dr.  Shane  McAlister,  a  board-certified  radiologist, \n\nWRIGHT H208285 \n \n \n7 \n \n \nreviewed Claimant’s medical records and diagnostic imaging. Resp. Ex. 1, pp. 749-756. Dr. Kelly \nconcluded in his opinion that an “anterior cervical fusion has been suggested by a subsequent \ntreating  physician.  This  physician  indicated  that  the  injury  was  the  reason  for  the  surgery.  This \ndirectly contradicts the opinion of the initial treating spine specialist.” Id. at 755-756. Dr. Kelly \nopined that the initial treating spine specialist documented clearly and precisely the reasoning why \nsurgery  would  not  be related. Id. Dr.  Kelly  further  concluded  that  this  initial  opinion  appears \ncorrect, objectively based, and is supported by the medical records. Id. Dr. Kelly concluded that \nthe anterior cervical fusion procedure would not be related to the one-time isolated incident. Id.  \nDr.  Shane  McAlister,  Radiologist,  opined  that  the  records  and  diagnostic  imaging \nsubmitted do not document any traumatic injury to the cervical spine from the work incident that \noccurred on September 20, 2022. Respondents Ex. 1, p. 528. He further opined that there was no \naxial loading on the spine as a mechanism for injury to the disc or vertebral bodies, and the MRI \nscanning is the most sensitive imaging available  for evaluating acute bony or soft tissue injury, \nand  none  was  found. Id. Dr.  McAlister  concluded  that  any  further  treatment  of  the  cervical \nsymptoms would be related to the underlying degenerative process or other etiology. Id.  \nAdjudication \nA. Whether Claimant is entitled to additional reasonable and necessary medical \ntreatment, specifically a cervical anterior fusion for the C5-C6-C7. \nArkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states that an employer shall \nprovide for an injured employee such medical treatment as may be necessary in connection with \nthe  injury  received  by  the  employee.   Wal-Mart  Stores,  Inc.  v.  Brown,  82  Ark.  App.  600,  120 \nS.W.3d 153 (2003).  But employers are liable only for such treatment and services as are deemed \nnecessary for the treatment of the claimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, \n725 S.W.2d 857 (1987).  The claimant must prove by a preponderance of the evidence that medical \n\nWRIGHT H208285 \n \n \n8 \n \n \ntreatment is reasonable and necessary for the treatment of a compensable injury.  Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What  constitutes \nreasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the  Commission.   White \nConsolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut Corp. v. \nJones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to  additional \ntreatment even after the healing period has ended, if said treatment is geared toward management \nof the injury.  See  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); \nArtex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  Such services can \ninclude  those  for  the  purpose  of  diagnosing  the  nature  and  extent  of  the  compensable  injury; \nreducing or alleviating symptoms resulting from the compensable injury; maintaining the level of \nhealing achieved; or preventing further deterioration of the damage produced by the compensable \ninjury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra.  A \nclaimant is not required to furnish objective medical evidence of his continued need for medical \ntreatment.  Castleberry v. Elite Lamp Co., 69 Ark. App. 359, 13 S.W.3d 211 (2000). \n But to prove his entitlement to the treatment at issue, Claimant must also prove that it is \ncausally  related  to  his  compensable  injury  of September  20,  2022.   See  Pulaski  Cty.  Spec.  Sch. \nDist. v. Tenner, 2013 Ark. App. 569 (2013) \nDr. Reza Shahim, in review of Claimant’s MRI cervical spine, noted cervical spondylosis \nwith stenosis at C5-6-7 central disc herniation with thecal sac compression at C5-6 and foraminal \nstenosis at C6-7. Claimant’s Ex. 1, p. 48. I credit Dr. Reza Shahim’s report and recommendations \nfor treatment. The Claimant has not had any serious issues with her neck prior to her September \n20, 2022, work related injury. Claimant, at the time of her injury, was moving a 75-to-100-pound \n\nWRIGHT H208285 \n \n \n9 \n \n \nmetal beam, that supports top stock items, from one area to another with a co-worker. Transcript \np. 18, lines 2 – 24. While Claimant and co-worker were both ascending ladders to hang the support \nbeam, the co-worker let go of the beam causing the full weight of the metal beam to pull down, in \na  jerk  manner, on  the  right  arm,  shoulder,  and the neck  of  the  Claimant.  Due  to  the immediate \ntearing of muscle in Claimant’s right arm and shoulder, her fingers would not let go of the beam \ncausing continuous strain on her arm, shoulder, and neck while she was still on the ladder holding \nthe metal beam. In fact, the Claimant needed help getting her fingers loose from the metal beam.  \nSince this incident, the Claimant has experienced continuous pain from her neck. The MRIs \nshow, according to some of the Claimant’s providers and reviewers, only degenerative conditions. \nAssuming  that  was  true, the  Claimant  was  asymptomatic prior  to her work-related  incident. \nHowever, after the work-related incident, I find that is not the case now. Simply stated, there is no \nreasonable  explanation  for Claimant’s injuries, considering Dr. Shahim’s opinion, and her pain \nother than the September 20, 2022, work-related injury. Therefore, I find by the preponderance of \nthe evidence that Claimant has proven her cervical injuries are causally related to her September \n20, 2022, work injury.  \nThe Claimant is now seeking a cervical anterior fusion of the C5-C6 and potentially the \nC6-C7.  I  find  by  the  preponderance  of  the  evidence  that Claimant  has  proven  that a  cervical \nanterior fusion of the C5-C6, recommended by Dr. Shahim, is reasonable and necessary medical \ntreatment  for  her cervical  injuries  and  pain. I  do  not  find  that the  Claimant  has  proven  by  the \npreponderance  of  the  evidence  that  a cervical  anterior  fusion  for  the  C6-C7  is  reasonable  and \nnecessary medical  treatment  based  on  Dr.  Shahim’s report stating  that  a  C6-C7  fusion  is  a \n“possible” need versus an actual need. Claimant’s Ex. 1, p. 49. Nevertheless, such treatment for a \nC5-C6 anterior fusion is legally allowable for 1.) reducing or alleviating symptoms resulting from \n\nWRIGHT H208285 \n \n \n10 \n \n \nthe  compensable  injury; 2.) maintaining  the  level  of  healing  achieved;  or 3.) preventing  further \ndeterioration of the damage produced by the compensable injury.  Jordan v. Tyson Foods, Inc., 51 \nArk. App. 100, 911 S.W.2d 593 (1995); Artex, supra.   \nThe  Claimant  has  received  physical  therapy  and neck injections  all  to  no  avail. The \nClaimant has also received cervical exercises from Dr. Saer that have not given the Claimant any \nneck pain relief. These conventional methods of treating Claimant’s neck injury have been tried, \nleaving surgical intervention. I do recognize that the Respondents have solicited the professional \nopinions of two radiologist, Dr. Owen Kelly and Dr. Shane McAlister. However, these doctors are \nradiologist,  not  spine  specialist, and have  not  physically  examined  the  Claimant. Dr.  Shahim’s \nmore  invasive  recommendation, given Claimant’s circumstances, is  reasonable  and  necessary \ntreatment solution. Moreover, Dr. Shahim, Spine Specialist, has evaluated her and her MRIs and \nhave recommended options that could relieve Claimant’s suffering. And as previously stated, I \nfind that a cervical anterior fusion of the C5-C6, recommended by Dr. Shahim, is reasonable and \nnecessary and connected to the work-related injury.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":20256,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208285 TERESA A. WRIGHT, EMPLOYEE CLAIMANT LOWES HOME CENTERS LLC, SELF-INSURED EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED OCTOBER 2, 2024 Hearing before Administrative Law Judge, Steven Porch, on Augus...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","neck","back","cervical","strain","thoracic","sprain","fracture"],"fetchedAt":"2026-05-19T22:47:12.017Z"},{"id":"alj-H308060-2024-10-01","awccNumber":"H308060","decisionDate":"2024-10-01","decisionYear":2024,"opinionType":"alj","claimantName":"Wilson Bautista","employerName":"Bautista Construction","title":"BAUTISTA VS. BAUTISTA CONSTRUCTION AWCC# H308060 October 01, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BAUTISTA_WILSON_H308060_20241001.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAUTISTA_WILSON_H308060_20241001.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H308060 \n \nWILSON G.  BAUTISTA, EMPLOYEE     CLAIMANT \n \nBAUTISTA CONSTRUCTION, EMPLOYER    RESPONDENT \n \nTECHNOLOGY INSURACE COMPANY/ \nAMTRUST NORTH AMERICA, CARRIER/TPA   RESPONDENT  \n \n \nOPINION FILED OCTOBER 1, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Batesville, Arkansas, \non September 25, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, William C. Frye, of North Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above  styled  matter  on September 25, 2024, in \nBatesville, Arkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant \nto Arkansas Code Ann. 11-9-702 and Rule 13 of the Workers’ Compensation Act.  A Form \nAR-C was filed on December 12, 2023, claiming that the claimant had injured his back \nwhen he fell off a ladder.   A Form AR- 2 was filed on December 20, 2023, and it provided \nthat the date of injury was October 11, 2023, the first day of disability was October 18, \n2023,  the  claim  was  accepted,  and  appropriate  benefits  would  be  paid.    A  Change  of \nPhysician Order was obtained on the 16\nth\n day of April 2024.  The claimant was originally \nrepresented by Mark Peoples, attorney at law, who was allowed to withdraw by an Order \nfrom the Full Commission, dated June 25, 2024.    \n\nWilson G. Bautista – H308060 \n A Motion to Dismiss the Claim was filed on or about July 1, 2024, contending that \nthe claimant had failed to prosecute the claim per the law and rules of the Commission.  \nThe claimant has not requested a hearing to date and more than six months have passed \nsince the filing of the original claim.  After discovery was taken on or about April 15, 2024, \nit  appeared  that  the  claimant  was  receiving TTD and a  salary  from  the  Respondent \ncompany  which  he  owned.  At  the  time,  the  claimant  stated  that  he  would  provide \nadditional medical, but no additional medical was received. \n Appropriate notice was provided to the claimant at his last known address notifying \nhim that a hearing on the Motion to Dismiss was set for September 25, 2024, in Batesville, \nArkansas.  The claimant did not file a response and failed to appear on the hearing date.  \nAt the time of the hearing, William C. Frye appeared on behalf of the Respondents and \nasked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondent, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3123,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H308060 WILSON G. BAUTISTA, EMPLOYEE CLAIMANT BAUTISTA CONSTRUCTION, EMPLOYER RESPONDENT TECHNOLOGY INSURACE COMPANY/ AMTRUST NORTH AMERICA, CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 1, 2024 Hearing before Administrative Law Judge James D. Kennedy in Bat...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:47:01.516Z"},{"id":"alj-H400805-2024-10-01","awccNumber":"H400805","decisionDate":"2024-10-01","decisionYear":2024,"opinionType":"alj","claimantName":"Chase Boyd","employerName":"Cwc Mechanical LLC","title":"BOYD VS. CWC MECHANICAL LLC AWCC# H400805 October 01, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Boyd_Chase_H400805_20241001.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Boyd_Chase_H400805_20241001.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H400805 \n \n \nCHASE BOYD, EMPLOYEE CLAIMANT \n \nCWC MECHANICAL LLC, \n EMPLOYER RESPONDENT \n \nACCIDENT FUND INS. CO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 1, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  July 5,  2024,  in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented by Mr. Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented  by  Mr. Jarrod S. Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On July 5, 2024, the above-captioned claim was heard in Jonesboro, Arkansas.  \nA  prehearing  conference  took place  on April  22,  2024.   The Prehearing Order  entered \non that date pursuant to the conference was admitted without objection as Commission \nExhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations,  issues,  and \nrespective contentions, as amended, were properly set forth in the order. \nStipulations \n The parties discussed the stipulations set forth in Commission Exhibit 1.  After an \namendment of Stipulation No. 2 at the hearing, they read as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n\nBOYD – H400805 \n \n2 \n2. The  employee/employer/carrier  relationship existed  among  the  parties  on \nor about December 10, 2023, and at all other relevant times. \n3. Respondents have controverted this claim in its entirety. \n4. Claimant’s  average  weekly  wage  of  $1,119.20  entitles  him  to \ncompensation rates of $746.00/$560.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether Claimant sustained a compensable injury to his back by specific \nincident or, in the alternative, by gradual onset. \n2. When did Claimant provide notice of his alleged injury? \n3. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n4. Whether Claimant is entitled to temporary total disability benefits. \n5. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, following amendments at the hearing, \nread as follows: \n\nBOYD – H400805 \n \n3 \n Claimant: \n1. Claimant contends that he sustained injuries to his back in the course and \nscope of his employment on or about December 10, 2023.  Respondents \nhave controverted the claim. \n2. Also, Claimant  contends  that  he  is  entitled  to  temporary  total  disability \nbenefits  from January  26,  2024,  to  a  date  yet  to  be  determined;  to \nreasonable  and  necessary  medical  treatment;  and  to  a  controverted \nattorney’s fee. \n3. All other issues have been reserved. \n Respondents: \n1. Respondents contend that Claimant did not sustain a compensable injury \non   December   10,   2023,   or   at   any   other   time   while   working   for \nRespondent-employer. \n2. Further,  Respondents  contend  that  there  was  no  notice  of  an  alleged \ninjury until January 25, 2024. \n3. Finally,  Respondents  contend  that  Claimant’s  temporary  total  disability \nclaim is barred by his refusal of suitable employment, and/or he should be \nestopped from asserting entitlement to these benefits based on his lack of \ncooperation with Respondent-employer. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \n\nBOYD – H400805 \n \n4 \nthe  testimony  of the  witnesses and  to  observe their demeanor,  I  hereby  make  the \nfollowing  findings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he \nsustained a compensable injury to his back by specific incident. \n4. Claimant  has not proven  by  a  preponderance  of  the  evidence  that  he \nsustained a compensable injury to his back by gradual onset. \n5. Because of Findings of Fact/Conclusions of Law Nos. 3 and 4, supra, the \nremaining issues—whether Claimant is entitled to temporary total disability \nbenefits and to a controverted attorney’s fee, and when did he furnish \nnotice  of  his  alleged  compensable  injury—are  moot  and  will  not  be \naddressed. \nADJUDICATION \nSummary of Evidence \n The  hearing  witnesses  were Claimant,  Jonathan  Wattingly,  Kyle  Boyd, Mark \nChavers (“Mark”), and Buffy Chavers (“Buffy”). \n Along  with the Prehearing Order  discussed  above,  the  exhibits  admitted  into \nevidence in this case were Claimant’s Exhibit 1, a compilation of his medical records, \nconsisting  of one index  page  and 51 numbered  pages  thereafter; Claimant’s Exhibit 2, \n\nBOYD – H400805 \n \n5 \nnon-medical  documents  including  correspondence,  Commission  forms\n1\n,  and a  written \nstatement, consisting of one index\n2\n page and 17 numbered pages thereafter; Claimant’s \nExhibit  3, a  table  from  the  Craighead  County  District  Court  that  lists  traffic  citations \npurportedly  received  by  witness  Mark  Chavers,  consisting  of  one  page;  Claimant’s \n \n \n1\nThis exhibit includes a Form AR-2.  Per Ark. Code Ann. § 11-9-529(a)-(c) (Repl. \n2012): \n \n(a) Within ten (10) days after the date of receipt of notice or of knowledge \nof injury or death, the employer shall send to the Workers' Compensation \nCommission a report setting forth: \n \n(1) The name, address, and business of the employer; \n(2) The name, address, and occupation of the employee; \n(3) The cause and nature of the injury or death; \n(4) The year, month, day, and hour when, and the particular locality  \n where, the injury or death occurred; and \n(5) Such other information as the commission may require. \n \n(b) Additional reports with respect to the injury and of the condition of the \nemployee  shall  be  sent  by  the  employer  to  the  commission  at  such  time \nand in such manner as the commission may prescribe. \n \n(c)  Any  report  provided  for  in  subsection  (a)  or  (b)  of  this  section \nshall   not   be   evidence of   any   fact   stated   in   the   report   in   any \nproceeding  with  respect  to  the  injury  or  death  on  account  of  which \nthe report is made. \n \n(Emphasis  added)    Form  AR-2—one  of  the  numerical,  or  administrative,  forms  of  the \nCommission–is   one   of   the   forms   covered   under   this   provision.      Even   though \nRespondents  did  not object  to its admission,  the  above-highlighted  language  prohibits \nthe  Commission  from  considering it for  the  purpose  of  determining,  inter  alia,  whether \nClaimant sustained a compensable injury. \n \n \n2\nThe  index  page  also  has  an  entry  that  reads:    “Audio  file  of  telephone  call \nbetween  Claimant  and  Paul  Carter  in  which  Respondents  agree  to  ‘take  care  of \neverything.’”  This was not included in the exhibit; but based on remarks by Claimant’s \ncounsel  at  the  hearing  [T.  27-28],  it  is  clear  that  this  recording is  identical  to  the  one \nlocated at page 101 of Respondents’ Exhibit 1. \n\nBOYD – H400805 \n \n6 \nExhibit 4, the transcript of the deposition of Mark taken June 28, 2024, consisting of 37 \nnumbered   pages; Respondents’ Exhibit   1, non-medical   items   including   audio \nrecordings,  and  reports,  consisting  of two index  pages, 114 pages  thereafter,  and  one \ndisc; and Respondents’ Exhibit 2, a screenshot of a text message exchange, consisting \nof one page. \nAdjudication \nA. Compensability \n Introduction.    Claimant  has  argued  that  on  or  around December  10,  2023,  he \nsustained a compensable injury to his back either by specific incident or gradual onset \nwhile working for Respondent CWC Mechanical (“CWC”).  Respondents dispute that he \nsuffered a compensable injury. \n Testimony.    Claimant,   who   is   28   years   old,   testified   that   he   worked   for \nRespondent CWC on two different occasions totaling four years.  His more recent stint \nthere  lasted  approximately  two  years.    His  employer,  whose  shop  is  located  in \nJonesboro, performs welding, construction, millwright, and equipment services.  These \nservices are often performed in industrial settings.  He testified that his duties at CWC \nprior  to  December  10,  2023,  involved  “a  lot  of  bending,”  along  with  twisting,  lifting, \ncrouching,  and  working  his  way  through  attic  spaces.    He  routinely  worked  eight-plus \nhours a day doing this. \n \n \n\nBOYD – H400805 \n \n7 \n On December 10, 2023, Claimant was working for CWC on-site at the ConAgra \nplant  in  Russellville.\n3\n  Two  other  CWC  employees  were  at  the  plant  that  day:    Mark \nChavers  and  Jonathan  Wattingly.  The  project  that  they  were  working  on  was  the \nreplacement  of  old  glycol  lines  with  new  stainless  steel  ones.   This  work  was  taking \nplace  in  the  attic (also  referred  to  at  times during  testimony as the “interstitial”) above \nKitchens 5 and 6 in the plant.  Claimant’s job was to help cut out the old pipe, remove it \nfrom  the  attic,  take  measurements,  and  hold  the  new  piping  in  place  for  the  welder.  \nWattingly was handling the welding duties in the space below the attic, while Mark was \nacting as the supervisor.  Describing the workspace, Claimant related:  “It’s short.  It’s \ncrowded  with  other  pipe  and  ceiling  hangers,  and  you  have  to  crawl  around  to \nmaneuver through it.  It’s pretty tight.” \n The following exchange took place: \nQ. And  so  just to  explain for  the  Commission  and for  the  record  what \nhappened  in  terms  of  how  the  pipe  got  cut,  how  the  pipe  got \nwelded, how it got delivered from where it was welded into this attic \nspace. \n \nA. So  you  would  start  by  cutting  the  pipe  out  in  the  attic.    And  in \npieces,  you  would  crawl  through  the  attic  dragging  it,  go  out  the \nlittle manhole door, climb down a small ladder that’s probably about \nfour-foot tall,  and  then  you  would  turn  and  crawl  down  another \nladder off  of  that  platform  that  was  probably  about  12—10  to  12 \nfeet, something in that range.  And you would go down.  And then if \nthey  were  welding  it  from  below,  we  weld  long,  long  stretches  of \npipe to avoid having to do much welding when we were in the attic; \nbecause the welding in the attic is difficult, laying down and all.  So \nwe would weld a longer stretch, carry it up.  Someone would stand \n \n \n3\nPer  Ark.  Code  Ann.  §  11-9-704(b)(4)(B)  (Repl.  2012),  this  case  should  have \nbeen assigned to an administrative law judge in District 2 (which includes Pope County, \nthe location of the alleged accident) instead of District 4. \n\nBOYD – H400805 \n \n8 \nbelow,  and  they  would  hand  that  pipe  up  to  the  person  up  on  the \nplatform.  That person would maneuver the pipe into the manhole, \nand then go through dragging the pipe and place it in the— \n \nQ. As you were cutting out these old sections of pipe, were we dealing \nwith different lengths of pipe? \n \nA. Yes. \n \nQ. And  give  us  an  idea,  in  terms  of  various  lengths,  that  you  were \ncutting and replacing that day, December 10, 2023. \n \nA. We  would cut  out  pieces  anywhere  from,  you know,  two  feet  to \neight feet, maybe, just to pull out.  And then we’d replace it with, \nroughly, 10, 12-foot pieces that are pre-welded together. \n \nQ. And, I assume, from what you’re telling me, the reason there’s a \ndifferent length in terms of what’s being pulled out versus what’s \nbeing taken up is you’re probably—are  you  cutting  it  for  ease  of \ngetting it out? \n \nA. Yes.  You just cut it at random. \n \n It  was  the  testimony  of  Claimant  that  he  hurt  his  back  on  December  10,  2023.  \nHe  arrived  at  ConAgra  shortly  before  7:00  a.m.    Asked  what  happened,  Claimant \nrelated that the following occurred “probably around lunch time to noon or just before”: \nAs  Giovanni  [Suarez,  an  employee  of  MRM,  another  contractor]  was \nhanding me up one of those pre-welded pipes . . . a longer stretch.  It was \none of the longer stretches that we did that day.  It was just after it come \nthrough the roof.  We had a piece that was a long stretch that was 90 up, \n90  over,  and  it  was  probably  around  10,  12  foot  long.    It  was  probably \nabout 40 to 60 pounds.  Well, he would hand it up to me while I was on the \nplatform, and I had to maneuver it into the manhole at an awkward angle.  \nOnce  I  got  in,  I  was  dragging  it  through  there  on  my  hands  and  knees.  \nAnd I’m facing the manhole sort of to my right side.  As I’m taking the pipe \nand  moving  it  over  some  other  pipe  and  through  the  hangers  going \ntowards my left, I felt a pop in my lower back.  And it was sort of a shock. \n \n\nBOYD – H400805 \n \n9 \nContinuing with his testimony, Claimant described the pain as being located in his lower \nback.    He stated  that he  reported his  back  injury  to  Mark that  day—and  that Wattingly \nwas present when this conversation took place. \n Admitting  that  he  did  not  immediately  seek  treatment,  Claimant  testified  that  he \ndid not do so until January 26, 2024.  Asked why, he responded:  “It had finally gotten \nso  painful  that  I  needed  to  go.”   On  this  occasion,  he  went  to  Lawrence  County \nChiropractic Clinic at the recommendation of Mark.  Questioned why, per the record in \nevidence, that he told the chiropractor that his injury happened on December 11, 2023, \nClaimant responded:  “I had just got the date wrong whenever I was speaking to him.”  \nBut he added that he was “certain it was December 10,” adding:  “Evidence of the work \nwe were doing that day and text messages about the insulation we put on the pipe that \nday indicated it happened December 10.” \n The  chiropractor  declined  to  treat  him  that  day,  fearing  his  back  condition  was \nmore  serious  than he would  like  to  address.    So,  Claimant  was  referred  to  his  primary \ncare physician, Dr. Jonathan Cain.  He saw Dr. Cain on January 31, 2024.  Along with \nphysical   therapy,   Claimant   has   been   referred   to   a   neurosurgeon   and   to   pain \nmanagement.    His  testimony  was  that  he  was  scheduled  for  a  follow-up  visit  with  the \npain  management  clinic  the  week  after  the  hearing,  and  with  the  neurosurgeon  the \nweek after that.  As part of the treatment for his back, he has undergone x-rays and an \nMRI.    Moreover,  he  has  been  prescribed Neurontin  and  Gabapentin,  along  with \nCyclobenzaprine (Flexeril) for muscle spasms. \n\nBOYD – H400805 \n \n10 \n Claimant acknowledged that he had been involved in the workers’ compensation \nmatter previously:  he had suffered a partial finger amputation that he had reported and \nhad received benefits as a result.  He admitted that prior to the alleged date of injury, he \nhad been involved in multiple motor vehicle accidents.  However, he stated that he did \nnot  recall  being  involved  in  an  incident  on  September  2,  2020,  when  he  drove  off  the \nroad and struck a tree.  The following exchange occurred at that point: \nQ. Did you get a DWI associated with one of your wrecks? \n \nA. Yes. \n \nQ. Was that it? \n \nA. Possibly. \n \nQ. Did you run your truck off the road into some trees? \n \nA. Yes. \n \nQ. Okay.  And did you get a DWI with that incident? \n \nA. In Russellville? \n \nQ. Yes. \n \nA. Yes. \n \nShown photographs from Respondents’ Exhibit 2 that purport to show Claimant’s truck \ntotaled  in  2021  after  a  collision—one  that  did  not  result  in  a  police  report,  he  admitted \nthat he had been involved in a wreck.  But he stated that he did not remember if he left \nthe  scene  of  the  accident.    However,  he  did  recall texting  a  picture  of  his  damaged \nvehicle  to  Mark.    He  also  remembered being  struck  head-on  in  another  accident  on \nMarch 4, 2023. \n\nBOYD – H400805 \n \n11 \n Claimant admitted that on January 18, 2024, he texted Buffy, Mark’s wife, to ask \nabout getting on CWC’s health insurance so that he could obtain an x-ray.   He  was \nunable  to  do  this  at  that  time  because  it  was  outside  the  open  enrollment  period.   In \naddition,  Claimant  agreed  that  just  one  day  after  he  allegedly  hurt  his  back,  he \ncontacted the office to find out how much paid time off he had.  The following exchange \noccurred: \nQ. And  after  making  these  inquiries  and  learning  you  only  had  three \ndays of PTO and you couldn’t get on health insurance, then you \nreport this injury formally on January 25; correct? \n \nA. Correct. \n \nQ. And without putting this injury on comp at the time, back in January \nof 2024, if you didn’t put on comp, you had no other way to pay for \ntreatment except out of your pocket; right? \n \nA. Correct. \n \nDespite  being  purportedly  injured  on  December  10,  2023,  Claimant  continued  to  work \nhis regular duties up through January 25, 2024. \n When questioned by the Commission, and told that December 10, 2023, fell on a \nSunday, Claimant confirmed that he was injured on that date, adding:  “We worked \nweekends quite often.”  Asked by Respondents why he told Dr. Zhangliang Ma that his \nback pain began in “late December,” he replied:  “That’s just a turn of phrase.  I just said \nDecember.”  Later, Claimant stated that he “just accidentally said that.” \n Claimant’s testimony was that on the date that he was hurt, December 10, 2023, \nhe reported to Mark that he had injured his back.  He added that Wattlingly was present \nwhen this occurred:  “He was standing just to the side of us while we were having the \n\nBOYD – H400805 \n \n12 \nconversation.”  Mark was, according to Claimant, not only his supervisor but the owner \nof CWC. \n However,  in  a  recorded  telephone  conversation  with  Paul  Carter  and  Melissa \nBelcher (contained in Respondents’ Exhibit 1), Claimant stated that he actually informed \nMark of his alleged injury the next day, December 11, 2023. \n The following exchange took place: \nQ. Did CWC try to get you on their group health insurance during that \ntime? \n \nA. No, I don’t believe they did. \n \nQ. If  the  evidence  here  today  shows  that  there  was  communication \nbetween  you  and  CWC  about  trying  to  get  on  their  group  health \ninsurance  between  December  10[,  2023,]  and  January  25[,  2024,] \ndo you disagree with that? \n \nA. No, I wouldn’t disagree with it. \n \nQ. Okay.  Do you know why they were trying to get you on their group \nhealth insurance? \n \nA. Yes.      There   was   conversations   about   getting   me   on   health \ninsurance after I had told them that I was needing to seek medical \nattention for my back. \n \nQ. Did they want you to file a workers’ comp claim? \n \nA. No. \n \nQ. Did  you  tell  Mr.  Chavers  and  others  at  CWC  that  you  injured \nyourself at work? \n \nA. Yes, I told them. \n \n Claimant  testified  that  on  December  10,  2023,  he  was  aware  of  how  a  work-\nrelated  accident  should  be  reported  at  CWC.    Per  the  employee  handbook,  he  was  to \n\nBOYD – H400805 \n \n13 \nnotify  his  supervisor  and  human  resources  immediately.    Moreover,  CWC  displayed  a \nposter that contained information about its workers’ compensation carrier and workers' \ncompensation claims.  Claimant agreed that he had reported two work-related injuries at \nCWC in the past.  While he stated that he reported his alleged back injury to Mark, he \ndid  not  know  if  he  reported  it  to  human  resources—i.e.,  to  Carter and  Belcher.   Asked \nwhy  he  would  not  have  done  so  if  Mark  was  not  responsive,  Claimant  responded:  \n“[h]e’s an owner.”  While, according to Claimant, the matter “[e]ventually escalated” to \nCarter and Belcher, he did not contact them before January 25, 2024, about his back, it \ndid not make sense to him to do this “at the time . . . .” \n Claimant   identified   a   number   of   CWC   employees   who   functioned   as   his \nsupervisors.    They  included  not  only  Mark,  but  Reggie  and  Hayden  Chavers,  Tanner \nO’Guinn, Belcher, and even his own brother, Kyle Boyd.  The following exchange took \nplace: \nQ. And you had cell phone numbers for all these people; right? \n \nA. Correct. \n \nQ. And you told me you had email addresses for most of them; right? \n \nA. Some, yes. \n \nQ. Okay.    And  you  could  have  reported  to  any one  of  these  people  if \nwhat you’re saying about Mark not listening to you was true.  You \ncould have gone to any of these people and reported a work injury, \ncouldn’t you? \n \nA. Yes. \n \nQ. And you didn’t, did you? \n \n\nBOYD – H400805 \n \n14 \nA. No. \n \n Notwithstanding Claimant’s testimony, cited above, that he informed Mark of his \nalleged back injury the same day it allegedly happened—December 10, 2023—he told \nBelcher  and  Carter  in  the  recorded  telephone  conversation  that  is  in  evidence  that  he \nactually told Mark the next day.  Asked about this, Claimant stated on the witness stand \nthat  he  would  not  dispute  that  was  what  he  informed  them,  and  that  these  are  two \ndifferent  versions.    But  he  repeated  his  testimony  that  he  actually  informed  Mark  on \nDecember  10.    Asked  if  he  had  any  witnesses  who  could  corroborate  this,  Claimant \nidentified  Jonathan  Wattingly.    Returning  to  this  topic  when  he  was  questioned  by  the \nCommission and asked to explain the discrepancy between his testimony and what he \nrelayed in the earlier telephone call, Claimant explained that he ”might have misspoke in \nthat phone call.”  The following exchange took place: \nQ. Why would you have misspoken about something like that? \n \nA. So much stress being put on me about the subject of it. \n \nQ. Okay.  Stress from whom? \n \nA. Pressure from my superiors in the company, the owners, and— \n \nQ. Pressure in that they denied your claim?  What kind of pressure are \nyou talking about? \n \nA. Yes, they were wanting to not offer me the service of workman’s \ncompensation.  They were trying to avoid it and at that point in that \nphone  call  was  being made that  was  after  it  got  to a point  where I \nsaid,  hey,  I  need  help.    And  then  everybody  started  coming  at  me \nall at once try to hit me from different angles with stuff.  And I’m \nsure I misspoke. \n \n\nBOYD – H400805 \n \n15 \nQ. Okay. \n \nA. But  ask  Jonathan  Wattingly.    He  was  there  December  10  when  I \ncame down and said it. \n \n Called   by   Claimant,   Jonathan   Wattingly   testified   that   he   has   worked   for \nRespondent  CWC  for  nine  years  as  a  tig  welder.    He  has  known  Claimant  for  at  least \nthree  years.    Wattingly  related  that  on  December  10,  2023,  he  was  working  with \nClaimant at ConAgra in Russellville.  They were replacing 1.5-inch glycol pipes.  These \nare  made  of  stainless  steel.    While  he  was  working  below  on  the  floor  of  the  kitchen, \nwelding,  Claimant  was  in  the  attic  space,  cutting  out  the  old  pipe.    Wattingly  helped \ncarry in some of the new pipe, which was lengthy at times because they wanted to have \nfewer welds.  The attic space where Claimant was working was only four or five feet tall.  \nBecause of this, he “had to kneel down some.”  The presence of other pipes in the attic, \nwhich were held in place with hangers, made maneuvering in and out of there with old \nand new pipe difficult.  According to Wattingly, Mark Chavers and Giovanni Suarez were \npresent as well. \n The following exchange took place: \nQ. Did  Chase  tell  you—did  he  come  down  and  tell  you  that  his  back \nwas hurting on December 10, 2023? \n \nA. Yes. \n \nQ. And what time was that? \n \nA I said I think around two o’clock.  It was after lunch.  I don’t know \nexactly when it was, but it was after lunch at sometime. \n \nQ. But there’s no doubt that he came down and said his back was \nhurting on December 10, 2023? \n\nBOYD – H400805 \n \n16 \nA. Yeah.  He said his back was hurting. \n \n. . . \n \nQ. Had you heard him complain of his back hurting before that day? \n \nA. No. \n \nIt was Wattingly’s testimony that he heard Claimant complain about his back “maybe \nonce or twice” thereafter. \n However,  on  cross-examination, Wattingly  stated  that  Claimant  never  told  him \nthat he hurt his back at work on that date.  The following exchange took place: \nQ. Is  that  why  you  didn’t  report  anything  or  send  anything  up  the \nchain? \n \nA. Yeah.  I didn’t say anything because I didn’t know if, you know, if it \nwas going to be any big deal, if it was just his back was hurting in \npassing or whatever.  So I never— \n \nQ. Did you— \n \nA. —thought it was anything I need to say anything about. \n \nQ. Did you understand it to be from non-work-related causes? \n \nA. No. \n \nQ. Did you know one way or the other? \n \nA. No. \n \n. . . \n \nQ. You  have  not  been  given  any  information  from  Chase  indicating \nthat he had injured himself at work, injured his back? \n \nA. Correct. \n \n\nBOYD – H400805 \n \n17 \n Asked whether he knew whether Claimant told Mark about his alleged back injury \non December 10, 2023, Wattingly responded:  “I’m not for sure if it was specifically said \nto him because he was in and out all day.”  Moreover, Wattingly was not aware of \nClaimant informing Mark about his back at any point before January 25, 2024. \n Shown  a  form  captioned  “CWC  Mechanical  Incident  Investigation  Form – \nAccident” that is in evidence, Claimant stated that he was never offered this form to \nprepare in connection with his alleged back injury.  Wattingly concurred. \n Called by Respondents, Kyle Boyd testified that he is not only Claimant’s brother, \nbut  that  he  is  an  employee  of  CWC  Mechanical.    In  his  job  as  foreman  there,  he  can \ntake an injury report by an employee.  The following exchange took place: \nQ. Before  January  25,  2024,  had  Chase  ever  mentioned  to  you \nanything about injuring himself at work on December 10? \n \nA. No, sir. \n \nQ. Had you seen him between December 10 and January 25, 2024? \n \nA. Yes. \n \n. . . \n \nQ. And  did  you  know  he was  saying he had  some  back  symptoms  or \nback problems in that window of time? \n \nA. Not other than after the 25\nth\n. \n \nQ. After the 25\nth\n, okay.  But not once before he made the formal report \nto  CWC  had  he  indicated  to  you  that  he  suffered  a  work-related \ninjury  or  that  he  thought  he  had  suffered  a  work-related  injury; \ncorrect? \n \nA. No. \n \n\nBOYD – H400805 \n \n18 \nQ. Okay.  That is correct? \n \nA. Yeah, that’s correct. \n \nQ. Okay.  When this did come up on January 25, 2024, and he started \nsaying he hurt himself at work, did you ask him if he had told Mark? \n \nA. Yeah.  And I told him, I said he needed to talk to Mark about it. \n \nQ. Did he indicate to you he had not told Mark yet. \n \nA. He asked me did I think they would help him out on medical bills or \nwhatnot. \n \nQ. Okay.    Did  he  indicate  to  you  that  he  had  not  formally  reported  to \nMark yet? \n \nA. Right. \n \nQ. And you did you tell him, you need to tell Mark? \n \nA. Yes, sir. \n \n. . . \n \nQ. And you’re positive when he started telling you on January 25 that \nhe thought he had hurt himself at work, that he said he had not told \nMark yet? \n \nA. Correct. \n \n Mark Chavers,  one  of  the  owners  of  CWC,  confirmed  that  Claimant  inquired  on \nDecember  11,  2023,  about  the  amount  of  paid  time  off  that  he  had.   He checked  and \ninformed Claimant that he had three such days left.  While Claimant was off on the day \nthat he asked this question, he returned to work the next day, Tuesday, December 12, \n2023.  When he did so, according to Mark, Claimant resumed his regular duties and did \nnot show any signs of suffering an injury. \n\nBOYD – H400805 \n \n19 \n Asked about the pipe that Claimant was carrying at ConAgra, Mark stated that it \nweighed  approximately  one  pound  per  foot  of  length.    This  would  mean  that  a  12-foot \nlength—which  was,  by  his  estimation,  the  maximum  length  that  could  be  maneuvered \ninto  the  attic  space  without  being  cut  into  a  smaller  section—would  weigh  about  12 \npounds.  The pipe originally comes in 20-foot lengths. \n Mark testified that he was Claimant’s supervisor at CWC on December 10, 2023.  \nHe was present at the ConAgra plant in Russellville that day while Claimant worked on \nthe  pipe  replacement  project.    But  he  left  the job  site on  or  before  lunchtime  that  day, \nand  related  that  Claimant  did not tell  him  on  that  date  that  he  had  suffered  a  work-\nrelated back injury.  Instead, it was Mark’s testimony that he knew nothing about the \nalleged  injury  until  Claimant  made  a  formal  report  on  January  25,  2024.    Before  that \ntime, on two occasions, Claimant had mentioned his back bothering him, explaining that \nhe  did  not  know  what  he  had  done  to  it.    Mark  was  adamant  that  prior  to  January  25, \n2024,  Claimant  never  disclosed  that  he  believed  that  he  had  suffered  a  back  injury  at \nwork—let  alone  that  it  happened  while  working  in  the  attic  of  the  ConAgra  plant  on \nDecember 10, 2023.  Instead, he was simply stating that he was having back problems \nand needed health coverage.  Mark offered to lend him money for treatment, and texted \nhim  a  list  of  chiropractic  physicians.    Claimant  stated  that  he  was  concerned  about \nchiropractic  treatment  making  his  back  condition  worse.    After  this  conversation  took \nplace  was  the  first  time,  according  to  Mark,  and  Claimant  mentioned  an  incident  at \nConAgra  that  supposedly  happened  the  previous  month.    Mark  stated  that  he  never \ndiscouraged Claimant from filing or pursuing a workers’ compensation claim.  Once it \n\nBOYD – H400805 \n \n20 \nwas reported, both he and Carter investigated the matter.  Mark testified that he did not \nfill out an investigation report on the alleged incident because it was not reported to him.  \nOnce  Claimant  finally  made  a  report  in  January  2024,  it  was  given  to  Carter,  Belcher, \nand Buffy to handle. \n While Claimant  told Mark a  week  to  ten  days  before  January  25  that  he  was \nhaving a  problem  with  his  back  and  was  going  to  get  an  MRI,  he added  that  when  he \nasked Claimant what had happened, he replied that he did not know what he had done \nto his back.  It was during this period that they investigated whether Claimant could be \nadded to the company’s group health insurance. \n Later,  Mark  stated  that  he  would  not  have  texted  Claimant  the  names  of \nchiropractors had he known that Claimant’s back condition was work-related.    Buffy \nbegan  working  on  the  workers’  compensation  paperwork  the  next  day,  January  26, \n2024; and Claimant came into the office the following Monday, January 29, 2024, to fill \nout  and  sign  it.    Discussing  the  telephone  conversation  that  he  had  with  Claimant \nfurther, Chavers testified that in the course of it, Claimant identified his work in “the \ninterstitial” at ConAgra “December the 10\nth\n or something, whatever weekend that was.” \n Buffy  Chavers,  the  wife  of  Mark  Chavers,  testified  that  she  began  handing \nhuman resources matters for CWC in January 2024 due to the illness of Belcher.  She \nrelated that in response to a text message (which is in evidence) that Claimant sent her \non January 18, 2024, about getting on company health insurance (which he had waived \nearlier during the open-enrollment period), she called him.  According to her, he did not \nrepresent  during  that  conversation  that  he  had  been  hurt  at  work;  in  fact,  he  did  not \n\nBOYD – H400805 \n \n21 \neven mention what he needed an x-ray for or why.  She told Claimant that he could not \nsign onto CWC’s group health insurance until April 1, 2024.  However, once the matter \nwas treated as a workers’ compensation claim on January 25, 2024, she contacted the \ncompany’s insurer.  It was the testimony of Buffy that neither Claimant nor her husband \never stated before January 25 that Claimant had hurt his back at work or had reported \nthat he had. \n Claimant gave rebuttal testimony that he called Mark from the road after leaving \nRussellville on January 25, 2024, telling him that he needed to go to the doctor and that \nhe wanted to file a workers’ compensation claim.  He stated that Mark’s response was, \n“Why the ‘F’ are you calling me?”  Claimant added that they had a “heated argument,” \nand  that  Mark  sent  him  names  of  chiropractors  “several  hours  later.”    Asked  by \nRespondents why he did not relate this remarkable bit of testimony during his first stint \non the witness stand, Claimant replied:  “I wasn’t asked.” \n When Claimant testified again on rebuttal, the following exchange occurred when \nhe was examined by the Commission: \nQ. Mr. Boyd, I heard you testify initially that you felt a pop in your back.  \nDo you recall that testimony? \n \nA. Yes, Your Honor. \n \nQ. Did you relate that that that day to Mark? \n \nA. Specifically, a pop in my back? \n \nQ. Uh-huh. \n \nA. I can’t specifically remember saying that.  I remember just saying \nback pain, saying that I hurt my back.  I feels sore. \n\nBOYD – H400805 \n \n22 \n \nQ. I  mean,  you  relayed  on  the  witness  stand  a  specific  occurrence, \nthat you actually felt a pop in your back. \n \nA. Yes. \n \nQ. What  did  you—what  sensation  did  you  feel  that  came  along  with \nthe pop in your back?  Anything? \n \nA. Yes.  It was kind of like a shock and burning feeling. \n \n Continuing  with  his  rebuttal  testimony,  Claimant  stated  that  he  told  his  brother \nbefore  January  25,  2024,  that  he  had  been  hurt  at  work.    Asked  if Kyle  Boyd had  lied \nunder oath, Claimant responded:  “I wouldn’t call it lying.  He might have forgotten.”  \nWhen  questioned  whether  he  was  disputing his  brother’s testimony that Claimant told \nhim  on  that  date  that  he  had  been  hurt  at  work  but  had  not  told  Mark  yet,  Claimant \nreplied:  “I think there’s some inaccuracies in his story.”  He continued: \nWe had a conversation.  I believe it would have been earlier that day.  And \nI said, “Hey, I’m going to have to tell Mark that I’m done and I need to go \nto the doctor for good, like, for sure.  At this point, I’m not going to keep \nmessing around with him.” \n \n Medical  Records.   The  medical  records  of  Claimant,  contained  in  his  Exhibit  1, \nreflect  that Claimant  went  to Robert  Shackelford,  D.C.,  on  January  26,  2024.    The \nhistory portion of the report reads in pertinent part: \nPatient is a 28-year-old male who presents today stating he hurt his back \nat  work  on  12/11/2023.    Symptoms  include  severe  pain  when  he  coughs \nor sneezes that has progressively worsened.  Patient has pain consistent \nwith  throbbing,  aching,  and  stabbing  type  pain  that  is  continuous  with \nsome movements and produced increases in pain intermittently. \n \nThe chiropractor referred Claimant to his primary care physician, Dr. Cain, who saw him \non January 31, 2024, at the St. Bernards Internal Residency Clinic (St. Bernards). \n\nBOYD – H400805 \n \n23 \n On  February  12,  2024,  Claimant  went  back  to  St.  Bernards and  saw  Shi  Luo, \nD.O., and Christina Carl, D.O.  The history portion of the record states: \n28  yo  male  came  in  with  a  complaint  of  lower  back  pain  located  in  the \naround  L4-L5  and  surround[ing]  area  with  radiation  to  the  bilateral  lower \nextremities.    Pain  is  worse  with  flexion  and extension.   Patient  has  taken \nTylenol and naproxen without relief.  He is no longer using naproxen.  He \nwas last  seen  by  Dr.  Cain  for  similar  complaints and  xray  lumb[a]r \nspine and mri was ordered.  L-spine xray shows “Mild convex left lumbar \ncurve.    Grade  1  retrolisthesis  L3  on  L4.    The  lumbar  spine  is  otherwise \nnegative.”  MRI is schedule[d] for 2/20.  Patient said the pain was getting \nworse and started to cause bilateral lower extremities weakness.  Patient \ndenied  having  trouble  controlling  urine  or  bowel  and  denied  having \nsymptoms    resembling    saddle    anesthesia.        He    did    endorse    a \ncough/headache  that  started  about  3  days  ago  and  coughing  makes  the \nback pain worse. \n \n(Emphasis added) \n With  respect  to  the  language  in  bold above,  the  report reflects  that  Claimant \npreviously saw  Dr.  Cain  on January  31,  2024—and that he placed him “on light duty, \npending more diagnostic testing” at  that  time.  But  the  February  12  report  references \nanother  visit  Claimant  had  with  Dr.  Cain  that  took  place  on December  14,  2023—only \nfour  days  after  his  alleged  back  injury  supposedly  occurred.   On that particular \noccasion—again  per  the  February  12,  2024,  report—Dr.  Cain reviewed  what  was \ntermed Claimant’s “Active Problem List.”  The  first  entry  on  that  list  is:  “Lumbar back \npain (Acute Medical) M54.50.”  Interestingly,  the  report  does  not  indicate  that  the  list \nwas amended on December 14, 2023; only that it was “reviewed” on  that  date.  The \nMarch 18, 2024, report from St. Bernards (see infra) reflects that the Active Problem List \nwas “updated” at that time to include the following:  “Lumbosacral radiculopathy at S1 \n(Acute  Medical)  M54.17.”  Per  this  documentation, Claimant  treated  with  Cain  for \n\nBOYD – H400805 \n \n24 \n“acute” lumbar pain much earlier  than  reflected  in his  testimony  and  medical  exhibit—\narguably even earlier than December 14, 2023. \n The  following  related exchange occurred at  the  hearing  while Claimant was \nunder direct examination: \nQ. This  is  page  one  of  Claimant’s  medical  exhibit [the  January  26,  2024, \nreport  by  Dr.  Shackelford].    Is  this  the  first  time  you  had  sought  medical \ntreatment? \n \nA. Yes. \n \nQ. And why did you go to this chiropractor? \n \nA. It was recommended from Mark Chavers. \n \nClaimant was also questioned about this on cross-examination: \n \nQ. Is there a reason that you did not tell me about going to Dr. Cain on \nDecember 14? \n \nA. I don’t recall. \n \nQ. Is  there  a  reason  that  you  haven’t  introduced  records  from \nDecember 14? \n \nA. No. \n \n In any case, the February 12, 2024, report continues: \nAssessment & Plan \n(1) Lumbar back pain: \nCode(s):  M54.50 – LBP, LUMBAGO, LOW BACK PAIN \n \nPlan: \nWorsening  pain  and  start  to  have  BLE  weakness.    L-spine  xray  shows \n“Mild convex left lumbar curve.  Grade 1 retrolisthesis L3 on L4.  The \nlumbar spine is otherwise negative.”  MRI is schedule[d] for 2/20.  No \nemergent  need  for  neuro  imaging  due  to  lack  of  signs  of  urinary/bowel \nincontin[e]nce and lack of saddle anesthesia.  Are positive for straight leg \nraising unilaterally.  5/5 on BLE motor strength and sensation are grossly \n\nBOYD – H400805 \n \n25 \nintact  in  BLE  as  well.    MRI  scheduled  for  2/20.   OMT  provided  targeting \nparaspinal  muscles  with  soft  tissue  manipulation  and  spinal  inhibition \ntechnique  with  compression  to  the  .  .  .  paraspinal  region  of  L4  region.  \nSacral  rocking  was  utilized  as  well  as  the  pain  radiates  lower.    Also \nordered Toradol IM 60mg.  Also ordered Flexeril ER 15 mg once daily \nas needed (10 pills in total) for muscle spasm.  Hopefully all the above \ntreatment  is  going  to  last  him  until  the  MRI  for  definitive  diagnosis  and \nformulation of treatment plan. \n \nPlan: \n \n. . . \n \nCyclobenzaprine  ER  15  mg  PO  QDAY  PRN  10  caps  ORF  muscle \nspasm \n \n(Emphasis added)  Dr. Carl wrote that Claimant “may return to work on 2/22/2024 with \nlight  duty  restrictions  until  physical  therapy  is  completed.  On  February  26,  2024,  Carl \nstated that Claimant “cannot do any kind of bending or flexing of his back.  Mr. Boyd can \nalso  not  l[i]ft  anything  over  25  pounds.    He  can  return  to  work  with  these  restrictions, \nuntil physical therapy is completed.” \n As  stated  previously,  Claimant  went  again  to  St.  Bernards  on  March  18,  2024, \nand saw Paul Saad, M.D.  The history portion reads in pertinent part: \nMr.  Boyd  presents  to  clinic this  morning with  complaints  of  ongoing \nlumbosacral  pain.    Patient  initially  had  pain  since  December  2023,  has \nundergone  conservative  management  since  then  including  3  weeks  of \nphysical  therapy  and  OMM  which  have  not  alleviated  his  symptoms.  \nPatient  states  that  it  is  affecting  his  ADLs  including  walking  with  a  gait \nfavoring  his  right  leg,  pain  when  he  walks  especially  uphill  and  downhill, \nflexion  and  extension,  sitting  posture  is  affected,  patient  has  awakenings \nin  the  middle  of  the  night  when  he  moves,  and  is  currently  affecting  his \njob. \n \nThe report continues: \n\nBOYD – H400805 \n \n26 \nAssessment & Plan \n(1) Lumbosacral radiculopathy at S1: \nCode(s):  M54.17 Radiculopathy, lumbosacral region \n \nPlan: \nPatient  endorses  ongoing  lumbosacral  pain  with  radiculopathy  to  the \nbilateral lower extremities since December 2023.  Patient has undergone \nconservative  management,  OMM  session,  and  3  weeks  of  physical \ntherapy which have not alleviated his symptoms.  Patient is denying any \nred flag symptoms. \n \nLumbar  spine  x-ray  shows  mild  convex  left  lumbar  curve.    Grade  1 \nretrolisth[e]sis L3 on L4.  The lumbar spine is otherwise negative.  MRI of \nthe  lumbar  spine  shows  small  disc  protrusion  at  L5-S1  contacting  the \nright S1 nerve root.  No significant spinal canal or foraminal stenosis. \n \nNeurosurgery referral \n \nSaad wrote that Claimant “may return to work on 4/18/2024 or until Neurosurgery clears \nhim for work.” \n Next,  Claimant  went  to  NEA  Baptist  Clinic  on  April  15,  2024.    He  told  treating \npersonnel: \n[His  lower  back  pain]  was  caused  by  a  work  injury  that  occur[r]ed  in \nDecember 2023 felt a pop in his back working in an attic.  He lifted a 40-60 \npound  pipe weaving  through an  attic.   He felt  a  sharp burning  pain  in  his \nlower  back  and  buttocks.    He  has  been  off  work  since  the  symptoms \nbegan. \n \nThe report continues: \nTenderness to palpation in the middle to lower lumbar spine.  No muscle \nspasms noted. \n \n. . . \n \nRadiographic studies: \nI  have  personally  reviewed  the  images  listed  below  and  these  are  my \nfindings  from   looking   at   these   images.     These  findings   have   been \ndiscussed with the patient. \n\nBOYD – H400805 \n \n27 \n \nLumbar MRI revealed:  20 February 2024 L3/4 diffuse bulge, L4/5 bilateral \nLRS secondary to facet and disc disease; L5/S1 interspace narrowing with \nright paracentral disc bulge. \n \nClaimant  was  diagnosed  as  having  lumbar  radiculopathy  and  was  referred  to  physical \ntherapy and pain management.  Also, the author of the report wrote:  “Remain off work \nuntil completing PT and PM due to increased pain with pressure on lower back.” \n When  Claimant  presented  to  the  NEA  Baptist  Pain  Management  Clinic  on  May \n15,  2024,  he  reported  that  he  had  been  having  “chronic  lumbar  pain  since  late \nDecember 2023, worsening recently.  Pt states he hurt his back when he was working in \nthe attic at work.”  Zhangliang  Ma,  M.D., wrote:  “I reviewed MRI of L-spine  done  on \n4/13/24  with  the  following  findings:    Disc  bulging  at  L5/S1  level  posteriorly  toward  the \nleft side.”  She diagnosed Claimant as having the primary diagnosis of lumbar radicular \npain, along with discogenic lumbar pain, lumbar disc disease, and lumbar spondylosis.  \nMa prescribed  him  Neurontin  and  Mobic,  and  scheduled  him  for  a  transforaminal \nepidural steroid injection at L5-S1 on the left. \n Thereafter,  from  May  28,  2024,  through  June  20,  2024, continued  to  undergo \nphysical therapy. \n Nonmedical Records.  These have been discussed in the context of the witness \ntestimony, supra. \n Discussion.   In  order  to  prove  the  occurrence  of  an  injury  caused  by  a  specific \nincident or incidents identifiable by time and place of occurrence, a claimant must show \nthat:  (1) an injury occurred that arose out of and in the course of his employment; (2) \n\nBOYD – H400805 \n \n28 \nthe injury caused internal or external harm to the body that required medical services or \nresulted  in  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence \nsupported by objective findings, which are those findings which cannot come under the \nvoluntary control of the patient; and (4) the injury was caused by a specific incident and \nis identifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, \n56  Ark.  App.  126,  938  S.W.2d  876  (1997).    If  a  claimant  fails  to  establish  by  a \npreponderance  of  the  evidence  any  of  the  above  elements,  compensation  must  be \ndenied.   Mikel  v.  Engineered  Specialty  Plastics,  56  Ark.  App.  126,  938  S.W.2d  876 \n(1997).  The standard “preponderance of the evidence” means the evidence having \ngreater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415 \n(citing Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947)). \n Pursuant  to  Ark.  Code  Ann.  §  11-9-102(4)(A)(ii)(a)  (Repl.  2012),  proof  of  rapid \nrepetitive  motion  is  not  required  to  establish  a  gradual-onset  back  injury.    However, \nClaimant must still prove by a preponderance of the evidence that the alleged injury was \nthe major cause of the disability or need for treatment.  He must also show that a causal \nconnection  exists  between  the  injury  and  the  employment.   Gerber  Products  v. \nMcDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., \n72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \n\nBOYD – H400805 \n \n29 \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.  Id. \n Claimant undoubtedly has an objective finding of a back condition.  His February \n20, 2024, lumbar MRI revealed, inter alia, a disc bulge at L5-S1.  Furthermore, he has \nbeen diagnosed  as  having,  inter  alia,  lower  back  pain/lumbago  and  was prescribed \nCyclobenzaprine (Flexeril) for muscle spasms.  Muscle spasms can constitute objective \nmedical findings.  Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000); \nContinental Express, Inc. v. Freeman, 339 Ark. 142, 4 S.W.3d 124 (1999).  This, in and \nof  itself,  is  sufficient  to  establish objective  findings of a  lumbar  injury.   See  Bradford  v. \nStracener Bros. Constr. Corp., 2021 Ark. App. 316, 2021 Ark. App. LEXIS 334; Melius v. \nChapel  Ridge  Nursing  Ctr.,  LLC,  2021  Ark.  App.  61,  2021  Ark.  App.  LEXIS 67.  \nMoreover,  this condition caused  internal  or  external  physical  harm  to  his  body  and \nrequired medical services. \n As for whether this back condition arose out of and in the course of employment, \nand  was  caused  by  a  specific  incident  that  is  identifiable  by  time  and  place  of \noccurrence,  Claimant testified  that  it  was  due  to his carrying  pipes  through  the \ninterstitial/attic  at  the  ConAgra  plant  in  Russellville  on  December  10,  2023.   In  his \ntestimony, he related that while carrying a 12-foot section of pipe—which he estimated \nweighed  40  to  60  pounds—and  having  to  maneuver  around  the  other  pipes  in  the \ninterstitial, he felt a “pop” in his back. \n However, the first appearance in the evidentiary record of his suffering a “pop” in \nhis back was in his visit to NEA Baptist Clinic on April 15, 2024—over four months after \n\nBOYD – H400805 \n \n30 \nits  purported  occurrence,  and not  until at  least  his  seventh  visit  to  a  provider  for  his \nback.  Working with Claimant that day at ConAgra was Giovanni Suarez—an employee \nof  another  company.   According  to  Claimant,  Suarez  would  have  been  nearby—in  or \nnear  the  interstitial—when he suffered the “pop.”  But Mark  Chavers’s testimony  was \nthat  both Suarez  and his  employer,  Mike  Maggard,  told  Mark that  Claimant never  said \nanything to Suarez about being hurt.  I credit this.  Claimant claimed that he told Mark \non December 10, 2023, that he had been injured.  He admitted that while he supposedly \nfelt “kind of a shock and burning feeling” that came with the pop, he may not have \nrelayed  this  detail  to  Mark.    But  Mark  denied  that  Claimant  said  anything  to  him  at  all \nthat day about injuring his back.  To the contrary:  according to Mark, Claimant told him \nmore  than  once  that  he  was  not  sure  what  he  had  done  to  his  back  before  eventually \nclaiming  that  it  was  work-related.   After  assessing  both  of  these  individuals  during  the \nhearing, I credit Mark Chavers over Claimant. \n Claimant’s testimony was that Wattingly supposedly was a witness to the alleged \nconversation  between  Claimant  and  Mark.    However,  Wattingly  stated  that  the  only \nthing that he heard was Claimant stating “[i]n passing” that his back was hurting.  This \nremark occurred around 2:00 p.m.  Claimant never stated that the origin of the pain was \nsomething  work-related.    Because  of  this,  it  never  occurred  to  Wattingly  to  report  it.  I \ncredit his account. \n Claimant’s brother, Kyle Boyd—who, again, is a fellow employee of Respondent \nCWC—testified  that  he  saw  Claimant  between  December  10,  2023,  and  January  25, \n2024.  Yet he related that during that interim, Claimant never told him that he had been \n\nBOYD – H400805 \n \n31 \nhurt  at  work until  46  days  after  the  alleged  accident.    Asked  to  explain  this,  Claimant \nstated that his brother had simply forgotten that he had been told.  But having had the \nopportunity to view both witnesses and assess their respective testimonies, I credit Kyle \nBoyd over Claimant. \n In the days after this alleged back injury supposedly occurred, Claimant—who as \nthe evidence reflects, was acquainted with the workers’ compensation process—did not \nact  like  someone  who  had  suffered  a  work-related  injury.    The  day  after  the  alleged \nincident,  December  11,  2023,  Claimant  contacted  the  office  of  CWC  to  find  out  how \nmuch paid time off he had accumulated.  When he was told that he had three days’ \nleave,  he  returned  to  work  the  next  day  and  resumed  his  regular  duties.    His  medical \nexhibit  does  not  include  a  report  of  his  December  14,  2023,  visit  to  Dr.  Cain.    But  as \ndiscussed  above,  a  later  report  references  it—and  indicates  that  on  that  date,  Cain \n“reviewed”  Claimant’s  “Active  Problem  List,”  which  included  “[l]umbar  back  pain.”  \nAnother report shows that this list was later “updated.”  When was the list first updated \nto  reflect  that  Claimant  was  presenting  with  lumbar  pain?    This  is  unknown,  since  the \nfirst St. Bernards report in evidence\n4\n was for the February 12, 2023, visit.  Yet what is \nknown is that just four days after this incident, Claimant presented to his physician with \ncomplaints  of  back  pain.    Asked  at  the  hearing  why  he  did  not  disclose  this,  he \nresponded, remarkably, that he did not recall this appointment. \n \n \n4\nWhile  Claimant  saw  Dr.  Cain  on  January  31,  2024,  only  an  off-work  slip  from \nthat visit is in evidence. \n\nBOYD – H400805 \n \n32 \n Again, the evidence reflects that Claimant was in fact suffering from a back issue \nduring this time frame.  But instead of attempting to report it as being work-related—as \nhe ultimately did on January 25, 2024—he texted Buffy on January 18, 2024, to see if \nhe could be added to their group health insurance policy.  Only after he learned that this \nwas not possible because it was not during the open enrollment period did he finally tell \nCWC one week later that he had been hurt on the job. \n In  light  of  the  foregoing,  I  cannot—and  do  not—credit  Claimant  concerning  the \ncircumstances surrounding his alleged back injury.  He has not shown that his purported \ninjury  arose  out  of  and  in  the  course  of  his  employment.    For  that  reason,  he  has  not \nproven  by  a  preponderance  of  the  evidence  that  he  sustained  a  compensable  back \ninjury by specific incident. \n As for his alternative allegation that his back injury was gradual-onset in nature, \nthe  evidence  as  highlighted  above  does not  establish  that  a  causal  connection  exists \nbetween his  back  condition  injury  and his  job  at  Respondent  CWC.  Consequently,  he \nhas not met his burden of proof under this theory, either. \n For  me  to  find  otherwise  would  require  that  I  engage  in  speculation  and \nconjecture.  But such cannot serve as a substitute for proof.  Dena Construction Co. v. \nHerndon, 264 Ark. 791, 796, 575 S.W.2d 155 (1979).  In sum, he has not proven that he \nsuffered a compensable injury to his back. \nB. Remaining Issues \n Because Claimant has not shown that he sustained a compensable injury to his \nback, the remaining issues—whether he is entitled to temporary total disability benefits \n\nBOYD – H400805 \n \n33 \nand to a controverted attorney’s fee, and when did he furnish notice of his alleged \ncompensable injury—are moot and will not be addressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":54422,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H400805 CHASE BOYD, EMPLOYEE CLAIMANT CWC MECHANICAL LLC, EMPLOYER RESPONDENT ACCIDENT FUND INS. CO. AMER., CARRIER RESPONDENT OPINION FILED OCTOBER 1, 2024 Hearing before Administrative Law Judge O. Milton Fine II on July 5, 2024, in Jonesboro, Craighead Cou...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1","denied:1"],"injuryKeywords":["back","lumbar","repetitive"],"fetchedAt":"2026-05-19T22:47:03.641Z"},{"id":"alj-H303571-2024-10-01","awccNumber":"H303571","decisionDate":"2024-10-01","decisionYear":2024,"opinionType":"alj","claimantName":"Mary Ginther","employerName":"Emerson Electric Company","title":"GINTHER VS. EMERSON ELECTRIC COMPANY AWCC# H303571 October 01, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GINTHER_MARY_H303571_20241001.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GINTHER_MARY_H303571_20241001.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303571 \nMARY M. GINTHER, EMPLOYEE     CLAIMANT \nVS. \nEMERSON ELECTRIC COMPANY, EMPLOYER   RESPONDENT \nOLD REPUBLICAN INSURANCE CO./ \nMITCHELL, WILLIAMS, SELIG, GATES AND \nWOODYARD, P.L.L.C., \nINSURANCE CARRIER/TPA      RESPONDENT \n \nOPINION FILED OCTOBER 1, 2024 \nHearing before Administrative Law Judge, James D. Kennedy, on the 26\nTH\n day of June, \n2024, in Batesville, Arkansas. \n \nClaimant is represented by Scott Hunter, Jr., Attorney at Law, Jonesboro, Arkansas. \nRespondent is represented by Richard N. Dodson, Attorney at Law, Jonesboro, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 26\nth\n day of June 2024, to determine the issues of \ncompensability of a claimed work-related right arm injury, medical in regard to the injury, \ntemporary total disability from February 15, 2023, to a date to be determined plus attorney \nfees.  All other issues were reserved. The respondents contended that the claim was not \ncompensable.  At the time of the hearing the parties stipulated that the claimant earned \nan average weekly wage of $1,058.75, sufficient for a TTD rate of $705.00 per week.   A \ncopy of the Pre-hearing order was marked “Commission Exhibit 1” and made part of the \nrecord without objection.  The Order provided that the parties stipulated that the Arkansas \nWorkers’ Compensation Commission has jurisdiction of the within claim and that an \n\nGINTHER – H303571 \nemployer/employee relationship existed on or about February 15, 2023, the date of the \nclaimed injury in question.        \n The claimant’s and respondent’s contentions are all set  out  in  their  respective \nresponses  to  the  Pre-hearing Questionnaire  and  made  a  part  of  the  record  without \nobjection.  From a review of the record as a whole, to include medical reports and other \nmatters properly before the Commission and having had an opportunity to observe the \ntestimony and demeanor of the witness, the following findings of fact and conclusions of \nlaw are made in accordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  An employer/employee relationship existed on February 15, 2023, the date of \nthe claimed injury.  At the time, the claimant earned an average weekly wage \nof $1,058.75.00 a week, sufficient for a TTD rate of $705.00 per week. \n \n3. The claimant  has  satisfied the required burden  of  proof  to  show  that she \nsustained a compensable, work-related injury to her right arm on February 15, \n2023. \n \n4. The claimant is found to be entitled to reasonable and necessary medical for \nthe treatment of the work-related right injury to her right arm. \n \n5. The  claimant  has  satisfied  the  required  burden  of  proof  to  show  that she  is \nentitled to TTD for a period of three weeks, one day. \n \n6. That all other issues are reserved.  \n \n7. The  claimant  is  entitled  to  attorney  fees pursuant  to  A.C.A. 11-9-715.    This \naward shall bear interest at the legal rate pursuant to A.C.A. 11-9-809. \n \n8. If  not  already  paid,  the  respondents are ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \n \n \n\nGINTHER – H303571 \nREVIEW OF TESTIMONY AND EVIDENCE \n The Pre-hearing  Order  along  with  the  Pre-hearing  questionnaires of the parties \nand the claimant’s amended response to the Pre-hearing  questionnaire were  admitted \ninto the record without objection.  The claimant submitted one exhibit that was admitted \ninto the record without objection and the respondents submitted seven exhibits that were \nadmitted into the record without objection.     \n The claimant, Mary M. Ginther, testified that she was born on January 31, 1990, \nwas  34  years old at  the  time  of  the hearing, and  started  working  for  the  respondent  in \nOctober of 2022, where she continues to work as a Paint technician. The job consists of \ntraining the painters, maintaining the Paint Line, and helping where needed, which can \ninclude filling out orders.  In regard to the claimed job injury on February 15, 2023, the \nclaimant testified she was working on the Paint Line where they were performing the 1000 \nJack Stand Challenge, meaning 1000 jack stands were to be welded, painted, packed, \nand  shipped  out during  the month. (Tr. 8, 9) “I was loading and unloading jack stands \nfrom the line, and then I heard a loud popping in my right shoulder, and I had an instant \npain  in  my  right  shoulder  down  my  right  arm,  my  forearm.”  This  occurred during the \nmorning.  Paige Jones, a painter on the Paint Line, was working with me at the time. The \nclaimant stated she let Annie Stigall, the Operations Manager, who happened to walk up \nat  that time, know what  happened,  and was instructed  to  go  fill  out  an  incident  report.  \nShe then went to the Safety Coordinator to fill out the report and asked Paige Jones, who \nwas working on the line with the claimant, to review it and sign it.  The report was then \nreturned to the Safety Coordinator, and the claimant then returned to work. (Tr. 10, 11) In \nregard to her injury, claimant stated she “took it easy the rest of the day.  I wasn’t lifting \n\nGINTHER – H303571 \nany parts anymore.  I believe I wrapped my arm up that same day.  I mean, I was in pain.”  \nShe went on to state that although her job title did not change, her job duties did.  She \ncontinued working for maybe three months, and during that time, her pain progressively \ngot worse.  She later told the Safety Coordinator that she needed medical attention and \nwas sent to the available doctor for a workers’ compensation evaluation.  The doctor was \nDoctor Terry Barns, who coincidentally was her primary care physician.  She contended \nat the time of her testimony that she went to Doctor Barns through workers’ comp.  Dr. \nBarns referred her to Doctor Dylan Carpenter, the doctor who performed surgery on her \nright bicep.  She then received physical therapy for a minimum of three weeks.  She stated \nshe had lost  strength  and  rotation  in  her  arm,  and  if  she  used the  wrist  and  forearm \nrepeatedly, her forearm became sore. (Tr. 12 - 15) She missed three weeks of work due \nto the surgery. (Tr. 16) \n Under  cross  examination,  the  claimant admitted that  every  employee  of  the \nrespondent was required by their job description to be able to lift 50 pounds.  She also \nadmitted that she stated in her deposition that the person working next to her heard her \narm  pop.    She also  admitted  the  manufacturing  area  was  one  very  large  room,  with \ndividers  for  the  welding  booths  and  paint  booths,  with  forklifts  running  up  and  down \nbeeping  and  honking  at  intersections.    Additionally  in  manual  machining, which was \nlocated behind her work area, they were blasting parts with glass beads, similar in method \nto sand blasting, along with running grinders, and there were approximately 130 people \nworking during her shift. (Tr. 17 - 20) Hearing protection was provided for the employees, \nbut not required. (Tr. 21) \n\nGINTHER – H303571 \n The  claimant  was  also  questioned  about  the  incident  report that she  filled  out \nwhere she stated her shoulder popped but didn’t state her elbow popped.  She testified \nthat she had “pain in my forearm and bicep” and she did not go to the doctor that day, \nafter being asked if she needed to. (Tr. 22) She admitted she finished her shift and worked \nevery shift  day  for  the  next  three  months, not making  a request for the  respondent to \nmodify her job. (Tr. 23) She also admitted that she later scratched her hand on a blasting \nbox and reported it to the respondent, but in her deposition when asked if she suffered \nany other injuries or falls in the three months following the accident and May 23\nrd\n, testified \n“Not that I recall.” (Tr. 24, 25) \n The claimant was also questioned about Dr. Burn’s report which provided that her \nchief  complaint  was  right  shoulder  pain.    The  report  provided the  claimant  denied  any \nspecific injury. (Tr. 27, 28) She testified that Dr. Burns referred her to Dr. Carpenter as \nher  personal  primary  physician. She  also  admitted  not  telling Natalie Wilson  with \nHelmsmen that she was seeing her personal doctor, but then added that Natalie Wilson \n“was aware that I was supposed to see Doctor Carpenter and denied my claim, which is \nwhen I believe I went to see him myself.”  She went on to say that the referral to Dr. \nCarpenter  was  from  Dr.  Burns, as her worker’s compensation doctor.  In regard to Dr. \nBurns, she went on to respond, “I don’t understand how I would know the difference if \nhe's  both  my  primary  and  because Emerson couldn’t provide me their workers’ comp \ndoctor.  Who is to say whether at that time he was my acting primary or workers’ comp \ndoctor.” (Tr. 29 - 31) \n She was also questioned about the report from Dr. Carpenter dated June 20, 2023, \nwhich  provided  that  the  referring  physician  was  Dr.  Burns,  and  which  stated  that  her \n\nGINTHER – H303571 \ncurrent problem was of a “sudden” onset. (Tr. 32) She admitted that she told Dr. Burns \nthat there was no specific incident, but after filing her Form C, she told Dr. Carpenter it \nwas sudden.  She admitted stating that the severity of her pain was mild to severe with \nuse for four to six months, and also that six months predated her claim but affirmatively \nstated that four months would not.  She also admitted she was off work for three weeks \nand a day, after the surgery on June 30, returning to work on July 24. (Tr. 33, 34) \n On  redirect,  the  claimant  was questioned about  Dr. Burn’s medical record of \nFebruary 15, 2023, Respondent’s Exhibit 2, a document which provided she had been \ncomplaining   of   right   shoulder   pain   and   further   down   in   the   report, referred   to \nMusculoskeletal and Extremities.  The claimant read “Able to abduct right arm, normal \ninternal rotation, painful at biceps tendon insertion and distal bicep.” (Tr. 39) \n The claimant’s second witness who testified was Paige Jones, a coworker, who \nstarted  working for  the  respondent during November, of  22  and  was  working  there on \nFebruary, of 23.   She currently works as an Assembler, but on February 15, 2023, she \nworked on the Paint Line, working directly with the claimant, hanging jack stands, working \nprobably  two  and  a  half  feet  from  the  claimant.    She  admitted  hearing  a  pop with the \nclaimant’s arm going limp and asking the claimant what happened.  She stated that the \nclaimant “wasn’t sure as to what had happened at that current moment.  She just knew \nthat her arm got hurt.”  She denied socializing or interacting with the claimant outside of \nwork. (Tr. 41, 42) \n Under  cross  examination,  Ms.  Jones  admitted  she  considered  the  claimant  a \ncoworker and friend but denied going to lunch with her during work hours.  She went on \nto testify that the claimant stopped hanging jack stands and went to paperwork and then \n\nGINTHER – H303571 \nreturned and worked for the next three months on light duty. (Tr. 43 - 45).  At this point \nthe claimant rested. \n The  respondents  called  Alicia  Justice,  employed  by  the  respondent  as  the  HR \nBusiness Partner.  She testified she deals with employee benefits, payroll, time keeping, \nworkers’ comp claims, and a change in job status.  She admitted not being employed by \nthe  respondents  on  February  15,  2023,  but  had seen the claimant’s incident report of \nFebruary 15, 2023, and there was no record of the claimant going to the doctor on that \ndate, or record of a request by the claimant stating she was unable to pick up 50 pounds. \n(Tr. 47 – 49) She was also aware that the claimant presented to Dr. Burns and that the \nrespondent paid for the one visit to Dr. Burns but did not pay for any additional medical.  \nIn regard to employee absences, Ms. Justice was aware that the claimant had requested \noff on February 21, which was requested prior to the incident, and that she was later off \non February 27 and March 21, which were both unexcused.  She was also off on April 25, \nwhich had been scheduled by the claimant.  She was also off work July 3, 4, 6, 7, 10, and \nmaybe the 20\nth,\n and was off work due to surgery.  Ms. Justice admitted the respondent’s \nrecords provided the claimant had been off work three weeks and a day after the surgery.  \nSince  September  23,  there  have been no  work  restrictions.  She  also  agreed  the  work \narea  in  the  building  was  estimated  to  be  over  200,000  square  feet  and  that  the  noise \nlevels  in  the  building  sometimes  exceeded OSHA  sound  guidelines.  (Tr.  51 – 55)  She \nwent  on  to  state  the  reason  the  respondents  were  controverting  the  claim  was  due  to \ninconsistencies with the claimant’s different stories. (Tr. 57) \n Under cross examination, Ms. Justice admitted starting work for the respondents \non May 30\nth\n, 2023, a date after the work-related incident of the claimant.  Ms. Justice was \n\nGINTHER – H303571 \nquestioned about the standard protocol after an injury and responded, “The policy says \nthat you’re supposed to report the injury immediately and go to the doctor if needed, so \nthe inconsistencies was kind of - - she didn’t go to the doctor or she didn’t say she needed \nmedical attention til three months later, so what did she do during those three months?” \n(Tr. 59) Ms. Justice was then asked the following question: \n Q.  “Well, I’m assuming that they paid for that because workers’ comp sent \n her there.  I mean, they wouldn’t pay for her to go to her PCP, so I’m \n assuming  they paid that because workers’ comp sent her there, is that \n right?” \n A.  “Yes.”  (Tr. 60) \n Under  redirect, Ms.  Justice  stated  that  it  concerned her  that  the  claimant  stated \nthat her shoulder popped, and later stated that her elbow popped and that she earlier had \nstated in her deposition she had been off work for three months, rather than three weeks.  \n(Tr. 61) \n       The claimant submitted 29 pages of medical records.  The initial medical record of \nJune  20,  2023, provided  that the  claimant  presented  to  Dr.  Burns  at  the  White  River \nHealth Center.  The report provided under assessment and plan that there was a tear of \nthe distal tendon of the biceps with a strain of the muscle facia and tendon of the biceps, \nalong with right should pain.  Right elbow distal biceps repair was discussed due to the \ninjury occurring in February of 2023.  The report further provided that the visit was the \nresult of an accident/injury on February 15, 2023, while loading parts onto a line overhead, \nwhere the claimant heard a popping.  The chief complaint was a right tendon tear.  The \n\nGINTHER – H303571 \nend of the report provided Cassie Miller LPN was scribing for and in the presence of Dr. \nCarpenter. (Cl. Ex. 1, P. 1 – 5) \n The claimant returned to the White River Health Center on July 18, 2023, with the \nreport providing for specified surgical aftercare, involving a strain of muscle, tendons and \nother parts of the right elbow, and providing that the date of the surgical procedure was \nJune 28, 2023.  The report referred to the same injury as the June 20, 2023, report, and \nwas provided by Dr. Carpenter. (Cl. Ex. 1, P. 6 – 10) A progress note dated August 10, \n2023, also by Dr. Carpenter, provided that the claimant had been performing therapy with \nno issues and was extending her arm at home and felt a huge pull with an audible pop.  \nThe report referred to right elbow pain and stated that the hardware was present with no \nobvious fracture. (Cl. Ex. 1, P. 11 – 16) The claimant again returned to the White River \nHealth Clinic and Dr. Carpenter on August 17, 2023, and the right elbow was tender with \nno swelling. (Cl. Ex. 1, P. 17 – 21) On September 19, 2023, the claimant was again seen \nby Dr. Carpenter, and the right elbow was nontender with no swelling observed, but with \na limited range of motion. (Cl. Ex. 1, P. 22 – 26) \n The  respondents  also  submitted  various  exhibits  that  were  admitted  without \nobjection.  The incident report dated February 15, 2023, provided that the claimant was \nsuffering pain in her right shoulder and elbow and was injured while pulling parts off the \nline, heard her right shoulder pop, and suffered pain in her forearm, biceps, and shoulder \nsince then. (Resp. Ex. 1, P. 1) \n The  respondents  also  introduced  a  medical  report  from  Dr.  Burns  dated  May  5, \n2023, which provided that the claimant presented with a complaint of right shoulder pain \noff and on since February 15, 2023, denying a fall or injury, but the report providing that \n\nGINTHER – H303571 \nthe claimant stating she does a lot of repetitive lifting while at work.  The report went on \nto provide that x rays would be obtained of the right shoulder and arm. (Resp. Ex. 2, P. \n1, 2) A right arm MRI report review with the claimant dated June 20, 2023, provided for a \ndiscussion of the right elbow distal biceps repair since the injury was February of 2023. \n(Resp. Ex. 3, P. 1, 2) A report from White River Ortho and Sports Medicine provided that \nthe  claimant  could  return  to  work  on  August  11,  2023,  on  light  one  arm  duty.    Dr. \nCarpenter saw the claimant in his office on August 17, 2023, placing work restrictions on \nthe claimant of one-handed duty with no lifting, reaching, pushing, or pulling involving the \nright arm.  The claimant was again seen by Dr. Carpenter on September 19, 2023, and \nthe  report provided  the  claimant  could  return  to  work  on  September  20,  2023,  with  no \nlifting over 5 pounds. (Resp. Ex. 4, P. 1 – 4)  \n The  respondents  also  submitted  the  deposition  of  the  Claimant,  taken  on \nDecember 4, 2023. The deposition provided that the claimant had a previous workers’ \ncompensation claim involving a hip and had filed a claim for Social Security Disability for \nhip  dysplasia  and  club  feet,  and  possibly  back  pain,  a  number  of  years earlier.    The \nclaimant testified during her deposition that she heard a pop in her arm near her elbow \non the inside of her arm in the morning during her shift.  She initially told Paige Jones, a \nco-worker, who was standing next to her, and then told Annie Stegall, her supervisor.  Ms. \nStegall requested that the claimant fill out an incident report. The claimant testified she \nthen filled out the report.  The claimant was specifically asked about the incident report \nproviding that she was pulling parts off the line and heard her right shoulder pop and that \nshe  had  pain  in  her  right  forearm,  bicep,  and  shoulder  since  then  and  she  responded \n“Correct.”  She went on to state that she assumed that she had pulled a muscle and went \n\nGINTHER – H303571 \nhome and rested, after finishing her shift.  She also stated at the time of her deposition \nthat  Dr.  Burns  referred  her  as  her  personal  primary  physician  to  Dr.  Carpenter.  She \ntestified that  she  told  the  respondent  she  was  going  to  see  Dr.  Carpenter,  which was \ndenied. (Resp. Ex. 7, P. 24 – 33)  \nDISCUSSION AND ADJUDICATION OF ISSUES \n In regard to the primary issue of compensability, the claimant has the burden of \nproving by a preponderance of the evidence that she is entitled to compensation benefits \nfor  the  injury  to her right arm on  February  15,  2023, under  the  Arkansas  Workers’ \nCompensation Law.   In  determining  whether  the  claimant has  sustained her burden  of \nproof, the Commission shall weigh the evidence impartially, without giving the benefit of \nthe doubt to either party.  Ark. Code Ann 11-9-704.  Wade v. Mr. Cavanaugh’s, 298 Ark. \n364, 768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence \non all issues before it into findings of fact.  Weldon v. Pierce Brothers Construction Co., \n54 Ark. App. 344, 925 S.W.2d 179 (1996). \n The  claimant  contends she  injured  her right arm at  the  time  of a work-related \nincident on February 15, 2023, and is entitled to reasonable and necessary medical for \nthe right arm injury, which would include the surgery already performed.  The respondents \ncontroverted the claim in its entirety, contending that the claimant could not establish by \na  preponderance  of  the  evidence  that  she  sustained  a  compensable  injury  during  the \ncourse and scope of her employment.    \n The claimant was born January 31, 1990, and was 34 years old at the time of the \nhearing.  She  started  working  for  the  respondent  during  October  of  2022,  where  she \ncontinues to work as a Paint Technician.  In regard to the claimed work injury on February \n\nGINTHER – H303571 \n15, 2023, the claimant testified she was removing jack stands from an overhead line when \nshe heard a popping she described occurring in her right shoulder at one point and also \ndescribed  occurring  in  her  right  forearm.    Her  co-worker,  Paige  Jones,  performing  the \nsame actions on the same line and who was approximately two and a half feet away from \nthe claimant, testified that she heard a pop and noticed that the claimant’s arm appeared \nlimp, and then asked the claimant at that time what had happened.  The response from \nthe claimant was that she did not know.  The claimant went on to testify that as fate would \nhave  it,  Annie  Stigall,  the  Operations  Manager,  walked  by  about  that  time,  and  the \nclaimant told her what had occurred.  Ms. Stigall instructed the claimant to go to the Safety \nCoordinator and fill out an incident report.  The claimant obtained the report form, filled it \nout, and brought  it  back to  the  line,  where  she requested  that her  co-worker  sign  the \nreport, and  then  returned  the  incident  report  to  the  Operations  Manager.  The  claimant \ncontinued to work that day and for approximately three more months thereafter, initially \nthinking that she had simply pulled a muscle. \n The claimant either self-imposed light duty for herself or light duty was provided to \nher by her supervisors.  In any case, the uncontroverted testimony is that the claimant \nlater notified the Safety Coordinator that she needed medical attention and was then sent \nto the clinic that provided workers’ compensation care for the respondent, White  River \nHealth  Center. The  doctor who normally treated workers’ compensation claims for the \nrespondent was apparently unavailable, and the claimant saw Dr. Burns who worked in \nthe same clinic, and who also happened to be her personal primary care physician.  Dr. \nBurns referred the claimant to Dr. Carpenter, who after various imaging modalities, and \na clinic visit, recommended surgery for a tear of the distal tendon of the right bicep, and \n\nGINTHER – H303571 \nthe surgery was later performed.  The initial visit to Dr. Burns was treated and paid for by \nthe respondent as a workers’ compensation doctor’s  visit,  but  that was  the  only  health \ncare that was treated as a workers’ compensation related matter.  Testimony from both \nthe  respondent  and  claimant  provided  that the  claimant  was off  work  three  weeks  and \none day due to the surgery and a healing period after the surgery on the forearm. \n The respondent based their denial of the claim on the fact that the claimant initially \nstated that she heard her shoulder pop in a noisy, large manufacturing center, and that \nshe  waited  approximately  three  months  before  requesting  health  care  in  regard  to the \ninjury. \n  Discrepancies were  noted  in the claimant’s testimony during her deposition and \nher  testimony during  the  actual  hearing in  regard  to where  the heard pop emanated, \nalthough the  claimant  and  her  coworker who  was  working  near  here, both  testified  to \nhearing a pop.  However, Paige Jones, the co-worker, also testified that she noticed that \nthe claimant’s right arm appeared limp immediately after the incident. \n The  actual  incident  report  signed  by  the  claimant  and  witnessed  by  co-worker \nPaige Jones, who was less than three feet away at the time of the incident, was filed on \nthe date of the injury and provided that the claimant injured her right bicep and shoulder \nwhile  pulling  parts  off  of  an  overhead  line, when the  claimant  heard  her  right  shoulder \npop, and then suffered pain in her right shoulder, forearm, and biceps.  This report filed \nshortly after the incident on February 15, 2023, corresponds with the medical report by \nDr.  Burns  on  June  20,  2023,  and  the  findings  of  Dr.  Carpenter, who later performed \nsurgery for a tear involving the distal right bicep.   \n\nGINTHER – H303571 \n Under workers’ compensation law in Arkansas, a compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability and must  be  stated  within  a  degree  of  medical  certainty. \nSmith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).    Speculation  and \nconjecture cannot substitute for credible evidence.  Liaromatis v. Baxter County Regional \nHospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).    More  specifically,  to  prove  a \ncompensable injury, the claimant must establish by a preponderance of the evidence: (1) \nan injury arising out of and in the course of employment; (2) that the injury caused internal \nor external harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in A.C.A. 11-9-\n102 (16) establishing the injury and (4) that the injury was caused by a specific incident \nand identifiable by time and place of occurrence.  If the claimant fails to establish any of \nthe requirements for establishing the compensability of the claim, compensation must be \ndenied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d 876 (1997). \n An  injury for  which  the  claimant  seeks  benefits must  be  established  by  medical \nevidence supported by objective findings which are those findings that cannot come under \nthe voluntary control of the patient. A.C.A. 11-9-102 (16).  It is also important to note that \nthe claimant’s testimony is never considered uncontroverted.  Lambert v. Gerber Products \nCo.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  \n Here, the incident report of February 15, 2023, and the findings in the later medical \nrecords are  found  to  be  causally  related to the  same  incident.  The  testimony  of  the \nclaimant, even with the noted discrepancies, and the testimony of the coworker are found \nto  be  believable, providing  that  an  injury  was  caused  by  a  specific  incident.    It  is  also \n\nGINTHER – H303571 \nnoted that Arkansas law does not require in every case to establish the casual connection \nbetween a work-related incident and an injury with an expert medical opinion.  See Wal-\nMart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).  Arkansas courts \nhave  long  recognized  that  a  causal  relationship  may  be  established  between  an \nemployment-related  incident  and  a  subsequent  physical  injury  based  on  evidence  that \nthe injury manifested itself within a reasonable period of time following the incident so that \nthe  injury  is  logically  attributable  to  the  incident,  where  there  is  no  other  reasonable \nexplanation for the injury.  Hail v. Pitman Construction Co. 235 Ark. 104, 357 A.W.2d 263 \n(1962) That is found to be the case in the matter currently before the Commission. \n A workers’ compensation claimant bears the burden of proving the compensable \ninjury by a preponderance of the evidence. A.C.A. 11-9-102 (4) (E) (i).  A compensable \ninjury is one that was the result of an accident that arose in the course of his employment \nand  that  it  grew  out  of  or  resulted  from  the  employment.   See  Moore  v.  Darling  Store \nFixtures, 22 Ar. App 21, 732 S.W.2d 496 (1987)  Based upon the available evidence in \nthe  case  at  bar, there  is  no  alternative  but  to find  that  the  claimant  has  satisfied the \nrequired burden of proof by a preponderance of the credible evidence to show that the \ninjury to her right forearm on February 15, 2023, is in fact work related and compensable \nunder the Arkansas Workers’ Compensation Act. \n In  regard  to  the  medical,  the Arkansas  Compensation  Act  provides  that  an \nemployer shall promptly provide for an injured employee such medical treatment as may \nbe reasonably necessary in connection with the injury received by the employee.  A.C.A. \n11-9-508(a).    The  employee  has  the  burden  of  proving  by  a  preponderance  of  the \nevidence  that  medical  treatment  is  reasonably  necessary.   Stone  v.  Dollar  General \n\nGINTHER – H303571 \nStores,  91  Ark.  App.  260,  209  S.W.  3d  445  (2005).    Preponderance  of  the  evidence \nmeans the evidence having greater weight or convincing force.  Metropolitan Nat’l Bank \nv. La Sher Oil Co., 81 Ark App. 263, 101 S.W.3d 252 (2003).  What constitutes reasonably \nnecessary medical treatment is a question of fact for the Commission.  Wright Contracting \nCo. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).  In the present matter, the initial \ntreatment by Dr. Burns, and the follow-up treatment and surgery by Dr. Carpenter, along \nwith the physical therapy, are found to be both reasonable and necessary.  \n It is also found that the claimant has satisfied the burden of proof that she is entitled \nto temporary  total disability for  a  period of  three  weeks  and  one  day,  based  upon  the \ntestimony the claimant missed that period from work, starting on the date of the surgery \nand returning to work three weeks and one day later.  It is noted that the claimant had \nworked  up  to  the  time  of  the  surgery,  only  missing  a  very  limited  amount  of  work.  \nTemporary  total  disability  is  the period  of  time  within  the  healing  period in  which  an \nemployee  suffers  a  total  incapacity  to  earn  wages.   Arkansas  State  Highway  and \nTransportation  Department  v.  Brashears,  272  Ark.  App.  244,  613  s.W.2d  392  (1981).  \nDisability  means  incapacity  because  of  injury  to  earn,  in  the  same  or  any  other \nemployment, the wages which the employee was receiving at the time of the injury.  The \nCommission may consider the claimant’s physical capabilities and evaluate her ability to \nengage in any gainful employment.  Here, the claimant continued to work after the injury \nof February 15, 2023, until finally being examined by a physician, where it was determined \nthat surgery would be required to correct the issue involving her right forearm.   It appears \nthat the surgery actually occurred on the date of June 28, 2023, based upon a medical \n\nGINTHER – H303571 \nreport, and from the testimony of both the claimant and the witness for the respondent, \nclaimant returned to work in some capacity three weeks and one day later.  \n After weighing the evidence impartially, without giving the benefit of the doubt to \neither party, it is found that the claimant has satisfied her burden of proof to show that she \nsuffered a work-related injury to her forearm on February 15, 2023, and that her claim is \nfound  to  be compensable.    She  is  also found  to  be entitled  to  both reasonable  and \nnecessary medical care, which includes the surgery to her right forearm performed by Dr. \nCarpenter,  as  well as follow  up  physical therapy and is also entitled  to temporary  total \ndisability for a three-week, one-day period.  \n The claimant and her attorney are entitled to the appropriate legal fees as spelled \nout in A.C.A. 11-9-715 \n This award shall bear interest at the legal rate pursuant to A.C.A. 11-9-809.  If not \nalready paid, the respondents are ordered to pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n            ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":32143,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303571 MARY M. GINTHER, EMPLOYEE CLAIMANT VS. EMERSON ELECTRIC COMPANY, EMPLOYER RESPONDENT OLD REPUBLICAN INSURANCE CO./ MITCHELL, WILLIAMS, SELIG, GATES AND WOODYARD, P.L.L.C., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 1, 2024 Hearing before...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["shoulder","wrist","strain","fracture","repetitive","hip","back"],"fetchedAt":"2026-05-19T22:47:05.730Z"},{"id":"full_commission-H301023-2024-09-30","awccNumber":"H301023","decisionDate":"2024-09-30","decisionYear":2024,"opinionType":"full_commission","claimantName":"Williemae Battles","employerName":"Arkansas Department Of Correction / (benton Work Release Center)","title":"BATTLES VS. ARKANSAS DEPARTMENT OF CORRECTION / (BENTON WORK RELEASE CENTER) AWCC# H301023 September 30, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Battles_WillieMae_H301023_20240930.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Battles_WillieMae_H301023_20240930.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301023 \nWILLIE MAE BATTLES, EMPLOYEE     CLAIMANT \nARKANSAS DEPARTMENT OF CORRECTION/ \n(BENTON WORK RELEASE CENTER),  \nEMPLOYER                          RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA         RESPONDENT \n \n \nOPINION FILED SEPTEMBER 30, 2024 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant represented by the HONORABLE WILLIAM C. FRYE, Attorney, \nNorth Little Rock, Arkansas.  \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney, Little Rock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Respondent appeals an opinion and order of the Administrative Law \nJudge filed May 6, 2024.  In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law:  \n1. The Arkansas Workers' Compensation \nCommission has jurisdiction over this claim.  \n \n\n2 \nBATTLES – H301023 \n2. I hereby accept the above-mentioned proposed \nstipulations as fact.  \n \n3. The Claimant proved by a preponderance of \ncredible evidence that all the authorized medical \ntreatment of record by Dr. Bowen and Rhodes \nwas reasonably necessary for her compensable \ninjuries of January 29, 2023. I also find that the \nrecommended surgery by Dr. Rhodes for her \nright arm/hand injury is reasonably necessary in \nconnection with the injury received by the \nClaimant in January 2023.  \n \n4. The Claimant proved her entitlement to \ntemporary total disability compensation from \nMay 2023 until a date yet to be decided, such as \nuntil the pronouncement of maximum medical \nimprovement by Dr. Rhodes following her \nsurgery.  \n \n5. The Claimant’s attorney is entitled to a \ncontroverted attorney’s fee on the indemnity \nbenefits awarded in this opinion.  \n \n6. All issues not litigated herein are reserved under \nthe Arkansas Workers' Compensation \nCommission Act.  \n \nWe have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s May 6, 2024 \ndecision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n\n3 \nBATTLES – H301023 \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \nFor prevailing on this appeal before the Full Commission, Claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn.  §11-9-715  (Repl.  2012).  For  prevailing  on  appeal  to  the  Full \nCommission, the Claimant’s attorney is entitled to an additional fee of five \nhundred  dollars  ($500),  pursuant  to Ark.  Code Ann.  §11-9-715(b)  (Repl. \n2012). \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n                        \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority’s opinion.  In my de novo \nreview of the record, I find that the Claimant has failed to prove by a \npreponderance of the credible evidence that she is entitled to additional \nmedical treatment recommended by Dr. Rhodes and Dr. Bowen, and the \n\n4 \nBATTLES – H301023 \nclaimant has failed to prove that she is entitled to additional temporary total \ndisability benefits.  \nThe claimant was employed with the respondent employer when she \ntripped and fell, injuring her right hand, right shoulder, back, and right hip on \nJanuary 29, 2023.  The claimant received treatment for her hand from \nJenna Pardoe, PA-C at OrthoArkansas and was treated by Dr. Victor \nVargas, also of OrthoArkansas, for her hip and shoulder injuries.  The \nclaimant was released at maximum medical improvement (MMI) and full \nduty employment with no restrictions by Ms. Pardoe on April 10, 2023, and \nDr. Vargas on May 22, 2023. \nAt the February 6, 2024 hearing on this matter, the claimant sought \nadditional medical treatment recommended by Dr. David Rhodes and Dr. \nScott Bowen, as well as additional temporary total benefits from May 2023 \nto a date to be determined.  The administrative law judge agreed, granting \nthe claimant the proposed medical treatment and additional TTD benefits.  \nArk. Code Ann. § 11-9-508(a) requires an employer to provide an \nemployee with medical and surgical treatment \"as may be reasonably \nnecessary in connection with the injury received by the employee.\"  The \nclaimant has the burden of proving by a preponderance of the evidence that \nthe additional treatment is reasonable and necessary. Nichols v. Omaha \nSch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \n\n5 \nBATTLES – H301023 \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013). \nIt is within the Commission's province to weigh all the medical \nevidence to determine what is most credible and to determine its medical \nsoundness and probative force. Sheridan Sch. Dist. v. Wise, 2021 Ark. App. \n459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness. Id.  However, \nthe Commission has the authority to accept or reject medical opinions. \nWilliams v. Ark Dept. of Community Corrections, 2016 Ark. App. 427, 502 \nS.W. 3d 530 (2016).  Furthermore, it is the Commission's duty to use its \nexperience and expertise in translating the testimony of medical experts \ninto findings of fact and to draw inferences when testimony is open to more \nthan a single interpretation. Id.  In the present matter, the weight of the \nobjective evidence proves the claimant is not entitled to additional medical \ntreatment. \n\n6 \nBATTLES – H301023 \nThe claimant first reported an injury to her right hand after a fall on \nJanuary 29, 2023.  During the course of her treatment, the claimant \nunderwent an X-ray with three views of her right hand and a nerve \nconduction study, both of which were interpreted as normal.  A triple phase \nbone scan of the claimant’s right wrist was also normal. \nAn X-ray and MRI of the claimant’s right shoulder revealed only \ndegenerative findings.  An X-ray of the claimant’s right hip and pelvis also \nrevealed only degenerative findings. \nAccording to the claimant’s original treating orthopedic specialist, Dr. \nVictor Vargas, the electromyography studies of the claimant’s upper \nextremities were normal.  In addition, the findings in the claimant’s right \nshoulder were degenerative as were the findings of the studies of the \nclaimant’s right hip and pelvis.  This X-ray of the claimant’s lower back only \nrevealed degenerative osteoarthritis.   \nDr. David Rhodes suggested surgery on the claimant’s right upper \nextremity with no objective medical evidence to support the surgery.  Dr. \nRhodes acknowledged the nerve conduction study was unremarkable or \nnormal.  His physical examination revealed the claimant’s right hand and \nelbow were basically normal with no objective medical findings.  The X-rays \nhe ordered of the claimant’s right hand and elbow were both normal.  Dr. \nRhodes opined there was no fracture dislocation or bony involvement of the \nright elbow and no fracture dislocation or bony impingement seen.  \n\n7 \nBATTLES – H301023 \nThere are no objective tests or findings whatsoever in the record to \nsupport his findings of right cubital syndrome or carpal tunnel syndrome. \nSubjective complaints and findings cannot be substitutes for objective \nmedical findings.  In any event, the claimant has refused and declined the \nsurgery.  \nLikewise, Dr. Scott Bowen has supplied no objective medical \nevidence to support his suggestions for additional medical treatment.  His \nphysical examination did not reveal any objective medical findings. \nAccording to Dr. Bowen, the studies of the claimant’s right hip \nrevealed only mild arthritis which he determined to be pre-existing \nosteoarthritis which is degenerative.  Dr. Bowen opined that the findings in \nthe claimant’s right shoulder were not specified as traumatic, which means \nthese findings are not related to the accident in question.  All the findings of \nDr. Bowen were degenerative and pre-existed the accident in question, and \nthe respondents are not responsible for treatment of these unrelated \nmedical issues.  \nWhile the claimant complained of ongoing pain throughout her \ntreatment, no diagnostic studies revealed any objective source of the \nclaimant’s pain, numbness, and tingling.  \nAfter the claimant’s physical therapist reported that the claimant was \nnot making any progress, Physician Assistant Jenna Pardoe conducted a \nmini-validity test, which the claimant “essentially failed [as] she was unable \n\n8 \nBATTLES – H301023 \nto participate in al the maneuvers.”  Ms. Pardoe opined that as of April 10, \n2023: \nThere have been many observed inconsistencies with \nthe patient’s performance in therapy along with \nultimately not participating. The patient is very capable \nand aware however she is regularly observed to \nmaintain full/extreme extension of the \ndigits/thumb/wrist when being observed and manually \nstretched. They have attempted passive range of \nmotion, however she forces her digits into extension \nagainst their pressure avoiding any motion. She \ncontinues to have daily pain described as an 8 out of \n10 on the pain scale and does not get any relief from \nher prescribed medications. When focused on another \narea of the hand or arm, she has been observed to \nrest the fingers or thumb and even move them, \nhowever once attention is paid to these areas they \nbecome very rigid in extension and immovable. She \nprovides minimal efforts and only furlough (sic) certain \ndirections. \n \nAt her current level, we cannot make any \nimprovements for her condition . . . . At this time, there \nis no other treatment I would recommend.  \n \nShe will be placed at maximal (sic) medical \nimprovement and may return to work at full duty with \nher right hand.  \n \n The claimant was later returned to full duty regarding her shoulder \nand other complaints by Dr. Vargas on May 22, 2023.  \n \nThere is simply no objective evidence that the claimant is entitled to \nadditional medical treatment, including the surgery recommended by Dr. \nRhodes, or pain management as recommended by Dr. Bowen.   \nAll the objective medical testing has been normal with no objective \nmedical findings.  The only findings have been degenerative, pre-existing \n\n9 \nBATTLES – H301023 \nconditions, or subjective complaints of pain.  The claimant’s condition has \nplateaued, and there is no indication in her records that this further \ntreatment is reasonable and necessary.  \nThe claimant has been released at MMI by her two initial treating \npractitioners and has shown extensive evidence of symptom exaggeration. \nFurther, neither Dr. Rhodes nor Dr. Bowen has related the additional \nmedical treatment to the claimant’s work-related injuries.  Thus, the \nclaimant has failed to meet her burden of proof on this issue. \nOur Rules require that to prevail on a request for additional \ntemporary total disability benefits, the claimant must prove by a \npreponderance of the evidence that he is totally incapacitated from earning \nwages and remains in his healing period.  Hickman v. Kellogg, Brown Root, \n372 Ark. 501, 277 S.W.3d 591 (2008).  \nThe healing period ends when the employee is as far restored as the \npermanent nature of his injury will permit, and if the underlying condition \ncausing the disability has become stable and if nothing in the way of \ntreatment will improve that condition, the healing period has ended.  The \ndetermination of when the healing period has ended is a factual \ndetermination for the Commission. \nAs discussed above, the claimant is indisputably no longer in her \nhealing period.  She has been released at MMI at full duty by her initial \n\n10 \nBATTLES – H301023 \ntreating practitioners for all relevant complaints and is no longer entitled to \nbenefits for those subjective complaints.  \nUpon being released to return to work, the claimant elected to apply \nfor FMLA and then ultimately retire rather than return to work.  The \nclaimant’s own testimony reflects that she elected not to return to work and \nhas not looked for work since her employment with the respondent \nemployer ended.  The claimant is currently drawing social security disability \nbenefits and state retirement benefits.  She should not be rewarded with \nadditional income for her personal decision to retire.  \nNot only has the claimant magnified her symptoms as reported in the \nrecords of OrthoArkansas, but she refused the additional treatment \nsuggested by Dr. Rhodes.  It defies logic to award continued temporary \ndisability benefits when the claimant has refused and declined the treatment \nsuggested by her treating physician.  Therefore, the claimant is not entitled \nto additional temporary total disability benefits from May 2023 to a date to \nbe determined. \n \nAccordingly, for the reasons set forth above, I must dissent. \n \n                                                            ______________________________                  \n               MICHAEL R. MAYTON, Commissioner","textLength":13965,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301023 WILLIE MAE BATTLES, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTION/ (BENTON WORK RELEASE CENTER), EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 30, 2...","outcome":"denied","outcomeKeywords":["granted:1","denied:2"],"injuryKeywords":["shoulder","back","hip","wrist","fracture","carpal tunnel"],"fetchedAt":"2026-05-19T22:29:45.095Z"},{"id":"alj-H400206-2024-09-30","awccNumber":"H400206","decisionDate":"2024-09-30","decisionYear":2024,"opinionType":"alj","claimantName":"Bruce Baker","employerName":"City Of Warren","title":"BAKER VS. CITY OF WARREN AWCC# H400206 September 30, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BAKER_BRUCE_H400206_20240930.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAKER_BRUCE_H400206_20240930.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: H400206 \nBRUCE BAKER,                         \nEMPLOYEE                                                                                                    CLAIMANT \n  \nCITY OF WARREN,  \nEMPLOYER                                                                                                RESPONDENT \n                                                                                                            \nMUNIICIPAL LEAGUE WORKERS’  \nCOMPENSATION TRUST, CARRIER/TPA                                         RESPONDENT                                                                               \n                                                                                                                                                                                                                                              \n \n         OPINION FILED SEPTEMBER 30, 2024 \n          \nHearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, El Dorado, \nUnion County, Arkansas. \n \nClaimant appeared pro se. \n \nRespondents represented  by the  Honorable  Melissa  Wood, Attorney at  Law,  Little Rock, \nArkansas. \n \nStatement of the Case \nOn July  17, 2024, the  above-captioned  claim  came  on  for a hearing in El  Dorado, \nArkansas.  A Prehearing Telephone Conference  was  conducted in  the  above-styled  claim on \nMay 15, 2024, from which a Prehearing Order was filed on that same day.  A copy of said order \nand the parties’ responsive filings have been marked as Commission’s Exhibit 1 and made  a \npart of the record without objection.   \nStipulations \nDuring the prehearing telephone conference, and/or hearing the  parties  agreed  to  the \nfollowing proposed stipulations: \n\nBaker- H400206 \n \n2 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  of  the \nwithin claim. \n2. That  the  employee-employer-carrier  relationship  existed  at  all  relevant  times, \nincluding on or about September 5, 2023. \n3. The Claimant’s average weekly wage on September 5, 2023 was $645.73.  His \nweekly compensation rates are $431.00 and $323.00. \n4. The Respondents have controverted this claim in its entirety.  \n5. All  issues  not  litigated  herein  are reserved  under  the  Arkansas  Workers’ \nCompensation Act. \nIssues \nBy  agreement  of  the  parties,  the  issues  to  be  litigated at  the  hearing included  the \nfollowing: \n1. Whether  the  Claimant sustained  a  compensable  injury  to  his  abdominal on \nSeptember 5, 2023.  \n2. Whether   the Claimant   is entitled to   medical   treatment for   his   alleged \ncompensable injury.    \nContentions \n The respective contentions of the parties are as follows: \nClaimant:  \nThe Claimant contends that he sustained a compensable abdominal injury, for which he \nis entitled to medical treatment. \nRespondents: \n\nBaker- H400206 \n \n3 \n \n The Respondents contend that the Claimant did not sustain a compensable injury \non   September   15,   2023, pursuant   to the  Arkansas  Workers’  Compensation  Act.  \nRespondents contend that the medical documentation does not support objective findings, \nthe need for medical treatment or any off-work status associated with an abdominal injury.          \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on  my  review  of  the  record  as  a  whole,  to  include  the  aforementioned \ndocumentary evidence, other matters properly before the Commission, and after having had an \nopportunity to hear the testimony of the witnesses and observe their demeanor, I hereby make \nthe following findings of fact and conclusions of law in accordance with Ark. Code Ann. §11-\n9-704 (Repl. 2012): \n1.      The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n          \nclaim. \n \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.      The Claimant did not prove by a preponderance of the evidence that he sustained  \n \na  compensable abdominal  injury  on  September  5,  2023.    Therefore,  the  issue \npertaining to reasonable  and necessary medical care for said alleged injury has \nbeen rendered moot and not discussed in this opinion.              \nSummary of Evidence \nMr. Bruce Baker (referred to herein as the “Claimant”), and his son, Bruce Baker, Jr., \nwere the only two witnesses to testify during the hearing.  \nThe  record  consists  of  the July  17,  2024 transcript and  the following exhibits: \nSpecifically, Commission’s Exhibit 1 includes the Commission’s Prehearing Order filed  on \nMay 15,  2024, and  the  parties’ responsive  filings; Respondents’  Exhibit  1  comprises  \n\nBaker- H400206 \n \n4 \n \nRespondents’ Hearing  Exhibit  Index of  Medicals consisting  of  twenty-nine  (29)  pages;  and \nRespondents’ Hearing Exhibit Index of  Non-Medicals consisting of twelve (12) pages has been \nmarked as Respondents’ Exhibit 2. \n                                                   Testimony \n  Bruce Baker/the Claimant \n  \n The  Claimant  testified  that he  worked  for  the  City  of Warren.  He  has  prior  work \nexperience at KJ Construction, as a heavy equipment operator.  The Claimant has performed \nthis type of work for over twenty (20) years.    At the time of the hearing, the Claimant was \nfifty-seven (57) years old.  He confirmed that he has worked for the City of Warren over eight \n(8) years, as a heavy equipment operator.   \n On September 5, 2023, the Claimant maintains that he injured his stomach area while \nperforming his employment duties for the City of Warren.  However, the Claimant testified that \nit was probably on September 4, 2023, when he got hurt.  The Claimant testified that he does \nnot know the exact date of his injury.  However, the Claimant testified that he was on the mini \ntrack when he injured his stomach.  According to the Claimant, he was picking up ramps that \nweighed around one hundred fifty (150) to seventy-five (75) pounds each when he got hurt, he \ntestified  that  he  had  been  performing  that  type  of  work  for  thirty (30) days.   The  Claimant \ntestified that no one witnessed his injury because he was working on a Saturday at the airport.  \nAccording  to  the  Claimant, the  following Monday  was  a  holiday.    However,  the  Claimant \nmaintained that he reported his injury the following night on the 5\nth\n when he arrived for work.  \nThe Claimant stated that his coworkers were aware that he was having problems.   \n With respect to his injury, the Claimant explained that once he unloaded the ramps, that \nis when he felt pressure on his stomach.  The Claimant testified that that he told his supervisor, \n\nBaker- H400206 \n \n5 \n \nMonte  Hearnsberger, that  he  was  unloading  the  ramps  and  got  hurt.  However,  the  Claimant \nspecifically testified that he told Mr. Hearnsberger that he had some problems, but he was not \nsure what it was because he was confused on what was going on.  Per the Claimant, he worked \nthe following day with pressure on his stomach although he was unable to do very much but he \nwas still working.  According to the Claimant, his wife set him up for an appointment, but he \ncould not see a doctor until two or three days later, which was on a Friday.             \n The following exchange took place: \nQ What did you say to Mr. Hearnsberger? \nA That’s what I’m trying to recollect on because it’s been so long ago.  I guess, I \ntold him that that was all I was doing that day.  You understand that?  That all I’d been \ndoing that day, he thought that I probably ...... That’s probably where I got hurt was on \nthe ramps.  \n \nAccording to the Claimant, Mr. Hearnsberger did a report on his injury, but he did not  \nreceive  a copy  of  the  paperwork.    The  Claimant  testified  that  he  saw  someone  (Anthony \nRodriguez) that works under Dr. Joe Wharton (his primary care physician) for his alleged injury. \nHe specifically testified that he reported that he was injured picking up ramps.  The Claimant \ntestified that he told Mr. Rodriguez that he was pretty sure he was hurt because he was unable \nto  breathe, and “the  veins  were  pulling  in  his  arms.”  Per  the  Claimant,  at  that  time,  he  was \nprescribed medication for acid reflux.  The Claimant denied that his symptoms of acid reflux \nwas caused by his work activities.   \n The  Claimant  confirmed  that  he  ultimately underwent  evaluation  by  the  workers’ \ncompensation doctor, Dr. Carle.  According to the Claimant, the nurse case manager went to \nthe appointment with him to see Dr. Carle.   The Claimant denied seeing Dr. Carle for a follow- \nup  appointment.    Instead,  the  Claimant  returned  to  his  family  physician  for  his  stomach \nsymptoms.  According to the Claimant, he was told he needed surgery because he had something \n\nBaker- H400206 \n \n6 \n \nprotruding  out  his  stomach.    However,  the  Claimant  denied  he  had  a  hernia.   Instead,  the \nClaimant testified that he was told he had a “tore muscle.”  He denied ever previously having \nhad a hernia. \n On cross-examination the Claimant confirmed that counsel took his deposition on May \n16,  2024.      The  Claimant  confirmed  that  he  works  for  the  City of Warren, in  the  Street \nDepartment.    He  agreed  that  he  runs  the  machinery  and  is  somewhat  a  boss  and  has  other \nmembers of his crew in line. \n The  Claimant  confirmed  that  he  testified  during  his  deposition  that  he  got  hurt  on  a \nTuesday.  He confirmed that Monday, September 4, 2023, was Labor Day.  The Claimant agreed \nthat September 5\nth\n would have been that Tuesday.  He confirmed that he worked all that day  at \nthe airport.  The Claimant admitted that during his deposition, he testified that he thought his \ninjury  occurred  sometime  that  Tuesday.    However,  the  Claimant  admitted  that  he  testified \nduring his deposition that he worked all day Tuesday, but he did not have a problem and was \nnot in pain. \n Next, the following exchange took place: \nQ Okay.  However, when you went to go lay down in bed that night, you had some  \nissues, is that correct? \n \nA Right.  Yeah. \nQ All right. \nA It was bad.   \nQ And then it was the next Wednesday ...... \nA And I don’t know what date Wednesday was but that’s the day I reported it to \nhim.  \n \nQ Okay.  So you had no symptoms at all until that night, is that correct? \n\nBaker- H400206 \n \n7 \n \nA Right. \nThe Claimant admitted that he talked to Monte (Hearnsberger) on Wednesday and told  \nhim that something was wrong.  He admitted that he told Monte that he thought he was having \na  heart  attack.    The  Claimant  admitted  that  during  his  deposition  he  was  asked  about  his \nsymptoms.  His response was, “Yeah.  I couldn’t lay flat.”   The Claimant agreed that then on \nWednesday morning, he had a sausage biscuit for breakfast and went to work.  He arrived for \nwork by 7:00 a.m. that morning.  The Claimant confirmed that he felt like his food was hung \nup in his esophagus.  He testified that he had a lot of “real large pressure” that was tight in his \nstomach.  The Claimant explained that the food he had eaten would not go down.  According \nto the Claimant, his food was not caught in his throat.  Instead, the Claimant testified that when \nhis food got to a certain point, and that is when it started putting pressure on him.  The Claimant \nconfirmed that during his deposition, he testified that he had pressure pulling on his veins and \ncould hardly breathe.  At that point, the Claimant admitted to telling Monte he thought he was \nhaving a heart attack.  He agreed that he did not go to doctor because his food went down, and \nthe pressure went away, and he started to get some relief. \n He admitted that he worked on Wednesday and felt good that day.  The Claimant agreed \nthat he did not feel anything when he was moving the ramps that day.  He admitted that when \nhe went to the doctor, he told the doctor the acid reflux was eating him up.   \n The Claimant admitted that they are trying to get him in to see a plastic surgeon.  He \ntestified that Dr. Wharton scheduled the appointment for him to see the plastic surgeon.  The \nClaimant admitted that Dr. Wharton warned him that there might be a problem with insurance \ncovering the surgery because it is cosmetic in nature.  \n\nBaker- H400206 \n \n8 \n \n He agreed that at some point Mr. Hearnsberger made a report.  The Claimant confirmed \nthat this was done around the time that they sent him to the workers’ compensation doctor.  At \nthis point, the Claimant agreed that this is what started the process for a workers’ compensation \nclaim.  The Claimant denied that he was told he needed to see Dr. Carle for an examination at \nthat point.  Instead, the Claimant scheduled an appointment for him to see his own doctor first. \nBruce Baker, Jr. \n The Claimant’s son testified on behalf of his father.  Mr. Baker testified that he is \ncurrently dating a nurse.  He also has a lot of friends working in the medical field, and he has \nalso worked in the medical field.  Mr. Baker’s dad called him and told him he had a protrusion \nin his stomach that happened at work.  He was not a witness to the alleged incident. Mr. Baker \ntestified that Dr. Wharton has recommended two surgeons.  However, one of the surgeons no \nlonger performs this type of surgery.  Mr. Baker confirmed that his dad has been diagnosed with \ndiastasis recti, which is a separation of the, a torn muscle. \n On cross-examination, Mr. Baker confirmed that his dad testified that he went to work \non Wednesday after he head the issue with the biscuit, he lifted some ramps and had no problem \ndoing that.           \n                Medical Evidence \nA  review  of  the  medical  evidence  submitted  shows  that  on  September  5,  2023,  the \nClaimant underwent evaluation by Anthony Rodriquez, APRN.  A Chart Note authored by Mr. \nRodriquez shows that the Claimant returned for a follow-up visit of a splinter in his thumb.  At \nthat time, the Claimant reported that a splinter was still in his thumb and that he had a knot in \nhis thumb.  Nurse Rodriquez’ assessment of the Claimant was a foreign body in soft tissue.  Per \n\nBaker- H400206 \n \n9 \n \nthese notes, the Claimant’s x-rays showed that the Claimant has arthritis for which a referral to \nOrtho was suggested, but the Claimant wanted to wait.   \nOn  September  11,  2023,  the  Claimant  presented  to  Nurse  Rodriquez  with  a  chief \ncomplaint of concern that he feels pressure in the middle of his chest when he eats, as his food \ndigests.  The Claimant  reported  that  the pressure  moved  downward to  the  abdominal  area.  \nSpecifically,  per  these  notes, the Claimant  presented  with a chief  complaint  of  having  issues \nwith epigastric pain making his left arm go numb.  At that time, the Claimant was noted to have \na history of obesity with BMI of 34.6 and reports that this pain is normally present shortly after \neating.  He denied any shortness of breath. The Claimant was assessed with “1.  Epigastric pain \n(primary).  2. Gastro-esophageal reflux disease without esophagitis.”  X-rays of the Claimant’s \nabdomen  revealed  likely  GERD,  Gastro-esophageal  reflux  disease  without  esophagitis. The \nClaimant  was  instructed  to  avoid  overrating;  not  to  lie  flat  within 2  to  3 hours  of  eating  any \nmeal;  avoid  foods  that  worsen  GERD  symptoms;  take  all  medications  as  directed  and \nRTC(return to clinic) if GERD symptoms return.   Nurse Rodriquez provided the Claimant with \nnutrition  counseling and weight  management information.    Specifically,  the  Claimant  was \ncounseled on well-balanced diet consisting of lean meats, fresh fruits, and vegetables, low fat \nmilk and cheeses.  He was also counseled for physical activity daily, which included 30 minutes \na day at least 5 days a week as tolerated, and increase of water intake.  BMI education provided. \nA CT scan was performed of the Claimant’s abdomen on October 5, 2023.  Dr. Rogerich \nT. Paylor’s with an impression of: “1.  No Acute abdominal process.  2. Non-Obstructing right \nnephrolithiasis.  3. A 0.4 cm noncalcified nodule right lung base.”    \nOn October 6, 2023, the Claimant was evaluated by Dr. Joe Wharton. At that time, the \nClaimant  was  assessed  with,  “Gastro-esophageal  reflux  disease  without  esophagitis  and \n\nBaker- H400206 \n \n10 \n \ndiastasis recti.” The Claimant was informed of no lifting for one month and return for follow-\nup  in  one  month.  At  that  time,  the  Claimant  was  instructed  on  weight  management  and \ncounseling for nutrition.   \nThe  Claimant  underwent  an  Independent  Medical  Examination of  his  abdomen on \nNovember 16, 2023, Dr. Scott W.F. Carle. \nPURPOSE OF EXAMINATION: Examine for objective findings and issue  \nstatement of impairment.  Causation, and maximum medical improvement.       \n \nMEDICAL RELATIONSHIP DESCRIPTION: \n \nThe Claimant was advised that we are here today for an independent medical \nexamination and that the examining physician will be Scott Carle, M.D.  The \ninformation provided during this examination will be used in the assessment and  \npresented in a report-like fashion to the requesting third party.  The requesting  \nthird party for this exam is Whitney Stratton, RN, CM ICS Consulting Services.   \nNo treating physician relationship will be established, and the report will be  \nshared with the requesting party listed above. \n \nThe Claimant signed, acknowledging understanding above and opinion will be  \ncopied to the requesting third party. \n \nHISTORY OF CURRENT CONDITION: \n \nThis is a 57-year-old male who was performing lifting tasks at work and had an episode  \nof  chest  pressure,  arm  tightness,  and  dyspnea.    The  Claimant  stated  that his  job  tasks \nwere “more demanding than usual.” He was seen by the PCP and thought that he may \nhave had a torn muscle in his chest or abdomen.  He was diagnosed with a diastasis recti.      \n               \n*** \n \nMEDICAL SUMMARY: \n \nThis is a 57-year-old male c/o intolerance to lifting at work by history, there was \napparently an episode of chest tightness with exertion and he was told he had reflux.  \nDuring one of his exams, some attention was given to some protruding of the lineal \nalba.  He underwent a CT scan which did not show acute injury findings.  He denies \na  history  of  abdominal  surgery.    He  states  that  his  abdominal  injury  occurred  on \nSeptember 5, 2023, while lifting ramps at work.  That same day, he was seen for \nf/u for a foreign body in the right thumb and his abdominal exam was noted to be \n“non tender” and “without masses.”  There  has  been  no  history  of  subcutaneous \nbleeding or ecchymosis after or near the case date. \n\nBaker- H400206 \n \n11 \n \n \nABDOMEN: \n \nDistended  and  obese  abdomen  without organomegaly.    Linea  alba  with  an \napproximate 5 cm diastasis above the above the umbilicus.  There does not appear \nto be a ventral hernia.  There is no ecchymosis or hematoma.  BS normal and no \nsignificant tenderness. \n \nDIAGNOSTIC IMPRESSIONS: \n1) Idiopathic  rectus  abdominis diastasis (Major  causes:  obesity  and  Age) (No \nevidence of ventral hernia due to lifting) (non-occupational diagnosis). \n2) Exertional chest tightness and history of exertional dyspnea. \n3) Obesity and deconditioning. \n4) Gastro-esophageal reflux. \n5) Skin injury to right thumb (not related). \n6) Hypertension. \n7) CT  abdomen  finding;  0.4  non-calcified  nodule  right  lung  base.    (PCP  f/u \nrecommended.)      \n \nCAUSATION \nCausation:    I  cannot  say,  with  reasonable  medical  certainty,  the  cause  of  his \nabdominal diastasis is from an occupational injury.  While activity may contribute \nto  some  discomfort  the  condition  is  considered  idiopathic  and  not  otherwise \nassociated with an occupational “event.” This condition while present, may lead to \nintolerance for lifting and would be considered as activity intolerance secondary to \nthe presence of the diastasis.  There was no clinical indication of traumatic tissue \nseparation by review of record and current examination.  There is no evidence of \nventral hernia with the diastasis by ultrasound. \n \nMMI    \nMaximum  medical  improvement  is  the  date  at  which  with  reasonable  medical \ncertainty that further deterioration or recovery is not anticipated.  This assessment \nimplies  that  a  condition  is  permanent  and  static.    One  can  either  state  that  it  has \noccurred or opine on when it is expected to occur.   \n \nThere  does  not  exist  an  occupational  injury  to  the  abdomen  for  which  MMI  is \napplicable. \n \nMANAGEMENT/DIAGNOSTIC THERAPEUTIC/CASE ANALYSIS   \n \nManagement: no continued management under workers ‘compensation for these \ncomplaints is justified.   \n \nGroup  health  management  is  recommended  for  his  weight,  blood  pressure  and \nabdominal weakness.  Weight loss and core strengthening can be helpful  for this \ncondition.   Surgery  is  rarely  indicated.  The  history  of  exertional  symptoms  of \n\nBaker- H400206 \n \n12 \n \ndyspnea and chest tightness are concerning from a cardiac standpoint.  Mr. Baker \nshould consider exercise stress ting with a cardiologist.  Furthermore, he has been \nnon-compliant  with  hypertension  management.    He  is  also  at  risk  for  obstructive \nsleep apnea and should also be screened for this. \n \nDiagnostics:  ultrasound of the diastasis did not show a hernia or traumatic \ndefect in the diastasis due to injury or trauma.   \n  \n Therapeutics: None indicated under a work compensation setting. \n \n Case Analysis: No additional records would be needed at this time. \n \nThe  final  medical  record  is  a  soft  tissue  ultrasound  abdomen  was  done  on  the \nClaimant’s stomach on November 21, 2023, with the following impression being rendered \nby Dr. Aaron L. Janos: “No soft tissue mass or fluid collection is identified.  No  ventral \nabdominal wall hernia was able to be visualized during Valsalva.”      \n \n                    Adjudication \nCompensability  \nThe Claimant has asserted that he sustained an injury to his abdominal area arising out \nof  and  in  the  course  and  scope of his  employment  with  the  City  of  Warren on September  5, \n2023, while working for the respondent-employer.  \n Act  796  of  1993,  as  codified  at Ark.  Code  Ann.  §  11-9-102(4)(A)(i) (Repl.  2012), \nprovides, in pertinent part:   \n (A)\"Compensable injury\" means: \n(4)(i) An  accidental  injury  causing internal  or  external physical  harm  to  the  body... \narising out of and in the course of employment and which requires medical services or \nresults in disability or death.  An injury is “accidental” only if it is caused by a specific \nincident and is identifiable by time and place of occurrence[.] \n      \nA compensable injury must be established by medical evidence supported by objective \nfindings.   Ark.  Code  Ann.  §  11-9-102(4)(D) (Repl.  2012).   “Objective findings,” are those \n\nBaker- H400206 \n \n13 \n \nfindings  which  cannot  come  under  the voluntary  control  of  the  patient.   Ark.  Code  Ann.  § \n11-9-102(16)(A)(i) (Repl. 2012).   \nThe Claimant has the burden of proving that he sustained a compensable injury.  Ark. \nCode  Ann.  §  11-9-102(4)  (E)(i).  Preponderance  of  the  evidence  means  the  evidence  having \ngreater weight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. \n269, 101 S.W.3d 252 (2003).   \n  After reviewing the evidence in this case impartially, without giving the benefit of the \ndoubt to either party, based on the current evidence before me, I find that the Claimant failed to \nprove by a preponderance of the credible evidence that he sustained a compensable injury to his \nabdominal area while performing his employment duties on September 5, 2023, while working \nfor the City of Warren. \n The parties stipulated that the employment relationship existed on September 5, 2023.  \nThe  Claimant  began  working  for  the  City  Warren  approximately  nine (9) years  ago.    He \ncontinued  to  work  for  the  city  as  of  the  date  of  the  hearing.    The  Claimant  testified  that  his \nemployment  duties  included  that  of  a heavy equipment  operator. He  also  worked  as  a  crew \nleader over several employees.  His testimony shows that he was injured at work while lifting \nsome heavy ramps as he was unloading the mini track.  Per the Claimant’s testimony, he does \nnot recall the exact date of his injury. It is well established in workers’ compensation law that \nan employee does not have to know the exact date that  he was injured.  The Claimant need only \nestablish an injury that is identifiable by proximate date and time.   \nHowever, the Claimant did testify that his injury occurred on a Saturday, while working \nat  the  airport.  He  confirmed  that  there  were  no  witnesses  to  his  accidental  injury.      Per  the \n\nBaker- H400206 \n \n14 \n \nClaimant’s testimony, he reported his alleged injury to management the following night when \nhe came to work, which was on September 5, 2023. \nThe CT scan of the Claimant’s abdomen revealed “no acute abdominal process.” I \nam  well  aware  of the  fact that  the  workers’  compensation  statute  does  not  have  a \nrequirement of an injury being “acute.”  However, there is no evidence demonstrating a \ntraumatic injury to the Claimant’s stomach.  Nor was a traumatic injury to the Claimant’s \nstomach demonstrated on the soft tissue ultrasound of his abdomen.   \nThe  Claimant’s  testimony  of  a  work-related   injury   to   his   stomach   is   not \ncorroborated by the contemporaneous medical evidence or any other probative evidence of \nrecord.  In fact, the Claimant initially reported that he had indigestion and some heart-like \nrelated symptoms to his treating physician.  There is no medically documented complaint \nof an alleged work-related injury to his stomach until around September 5, 2023.  He was \ncomplaining of abdominal symptoms prior to his diagnoses of “rectus abdominis diastasis.”  \nMoreover, Dr. Carle opined that this condition is idiopathic and not otherwise associated \nwith an occupational “event.” Dr. Carle further opined “That this condition while present, \nmay  lead  to  intolerance  for  lifting  and  would  be  considered  as  activity  intolerance \nsecondary to the presence of the diastasis.  There was no clinical indication of traumatic \ntissue  separation  by  review  of  record  and  current  examination.    There  is  no  evidence  of \nventral hernia with the diastasis by ultrasound.” I have attached significant weight to Dr. \nCarle’s opinion because it is consistent with the medical evidence and the Claimant’s \npattern of complaints. There is absolutely no expert opinion to the contrary. In fact, the CT \nof the Claimant’s abdomen did not show any  traumatic  findings  of  any  injury  such  as \n\nBaker- H400206 \n \n15 \n \nbleeding, swelling or anything of that nature.  Nor did the Claimant report or complain of \nany bleeding or swelling.    \nIn fact, no probative evidence whatsoever has been offered to support a finding that the \nClaimant sustained a specific incident injury while working for the respondent-employer.  The \nonly evidence offered in this regard was the self-serving testimony of the Claimant, which I did \nnot find to be credible.  Not only is the Claimant’s testimony not substantiated by the medical \nrecords, the Claimant’s own testimony in this regard to his  alleged  injury  is  conflicting  and \nconfusing. Under these circumstances, I am persuaded that it would require an impermissible \namount of sheer conjecture and speculation to attribute the Claimant’s current abdominal issues \nto his  work  activities  with  this  respondent-employer.    Conjecture  and  speculation,  however \nplausible, cannot supply the place of proof.  Dena Construction Co. v. Herndon, 264 Ark. 791, \n575 S.W. 2d 155 (1979).  Here, proof of a work-place abdominal injury is lacking. Therefore, \nafter reviewing the evidence in this case impartially, without giving the benefit of the doubt to \neither party, I find that the Claimant failed to prove he sustained a compensable injury within \nthe  meaning  of  the  Arkansas  Workers’  Compensation  Act on  September  5,  2023,  while \nperforming employment duties for the City of Warren.  \nHaving  found  that  the Claimant did  not  sustain  a  compensable  injury,  the  issues \npertaining to associated  benefits for this alleged injury are  rendered moot  and therefore have \nnot been addressed herein this opinion.     \n                                                         ORDER \nThe Claimant has failed to prove by a preponderance of the credible evidence that he \nsustained   a   compensable abdominal injury   on September 5,   2023,   while   performing \nemployment  duties  for  the  respondent-employer/the  City  of  Warren.    As  such,  this  claim  is \n\nBaker- H400206 \n \n16 \n \nhereby respectfully denied and dismissed in its entirety.  All other issues have been rendered \nmoot and discussed herein this Opinion.       \n      IT IS SO ORDERED. \n \n        \n______________________________ \n                                                                        CHANDRA L. BLACK \n                                                  ADMINISTRATIVE LAW JUDGE","textLength":29412,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H400206 BRUCE BAKER, EMPLOYEE CLAIMANT CITY OF WARREN, EMPLOYER RESPONDENT MUNIICIPAL LEAGUE WORKERS’ COMPENSATION TRUST, CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 30, 2024 Hearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, El Dorado, Unio...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["hernia"],"fetchedAt":"2026-05-19T22:49:37.173Z"},{"id":"alj-H306170-2024-09-30","awccNumber":"H306170","decisionDate":"2024-09-30","decisionYear":2024,"opinionType":"alj","claimantName":"Roshonda Ray","employerName":"Hino Mtrs. Mfg. USA, Inc","title":"RAY VS. HINO MTRS. MFG. USA, INC. AWCC# H306170 September 30, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Ray_Roshonda_H306170_20240930.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Ray_Roshonda_H306170_20240930.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306170 \n \n \nROSHANDRA RAY, EMPLOYEE CLAIMANT \n \nHINO MTRS. MFG. USA, INC., \nEMPLOYER RESPONDENT \n \nFIRST LIBERTY INS. CORP., \nCARRIER RESPONDENT \n \n \nOPINION FILED SEPTEMBER 30, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on September  27, \n2024, in Forrest City, St. Francis County, Arkansas. \n \nClaimant, pro se. \n \nRespondents represented by  Mr. Jason  M. Ryburn, Attorney at Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on September 27, 2024, in \nForrest  City,  Arkansas.    Claimant, pro  se,  appeared\n1\n at  the  hearing and  gave \ntestimony.   Respondents  appeared  through  above-captioned  counsel.   Admitted \ninto  evidence  was Commission Exhibit  1, forms, pleadings, and correspondence \n \n \n1\nAs  the  record  reflects,  Claimant  was  late  for  the  hearing.    I  began  the \nhearing promptly at 10:31 a.m., noted her absence, admitted Commission Exhibit \n1  into  evidence,  allowed  Respondents’  counsel  to  make  his  presentation  in \nsupport of his client’s motion, and then closed the record.  Shortly thereafter, \nClaimant  appeared.    Because  the  hearing  was  being  held  during  a  heavy \nrainstorm and because I accepted Claimant’s excuse that  the  inclement  weather \nmade  her tardy,  the  record  was  re-opened.  Thereafter, Respondents’ counsel \nessentially repeated his earlier arguments, and Claimant objected to the Motion to \nDismiss and gave testimony. \n\nRAY – H306170 \n \n2 \n \nrelated to this claim, consisting of 14 pages.  See Ark. Code Ann. § 11-9-705(a)(1) \n(Repl. 2012)(Commission must “conduct the hearing . . . in a manner which best \nascertains the rights of the parties”). \n The record shows the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on September  21,  2023, reflects \nthat Claimant purportedly suffered an injury to her hand at work on September 14, \n2023,  when  she  reached  for  a  part  on  the  assembly  line  and  was  struck  by  a \nbrake  assembly.    Per  the  original  and  amended  Forms  AR-2  that  were  filed  on \nSeptember  27  and  October  4,  2023,  respectively,  Respondents  accepted  the \nclaim and paid medical and indemnity benefits pursuant thereto. \n On February 15, 2024, through then-counsel Mark Alan Peoples, Claimant \nfiled a Form AR-C, alleging that she suffered a crush injury to her hand on August \n9, 2023.  The full range of additional benefits was requested.  No hearing request \naccompanied this  filing.    Respondents’  counsel  entered his appearance  on \nFebruary 23, 2024. \n On June  24,  2024, Peoples moved  to  withdraw  from  his representation  of \nClaimant.  In an Order entered on July 10, 2024, the Full Commission granted the \nmotion under AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until July 25, \n2024.  On that date, Respondents filed the instant motion, asking for dismissal of \nthe claim because “[n]o substantial efforts to prosecute the claim have been made \n\nRAY – H306170 \n \n3 \n \nand  no  hearing  has  been  requested  in  the  past  six  months.”  My  office wrote \nClaimant on July 29,  2024,  asking  for  a  response  to  the  motion within  20  days.  \nThe  letter  was  sent  by  first  class and  certified mail  to the Forrest  City,  Arkansas \naddress for her listed in the file and on the Form AR-C.  The United States Postal \nService  has  been  unable  to  verify  whether Claimant claimed the  certified  letter; \nbut the  first-class  letter  was  not  returned.   Regardless,  no  response  from her to \nthe  motion was  forthcoming.    On August  28,  2024,  a  hearing  on  the Motion to \nDismiss was scheduled for September 27, 2024, at 10:30 a.m. at the St. Francis \nCounty Courthouse in Forrest City.  The notice was sent to Claimant via first-class \nand  certified  mail to  the  same  address as  before.   In  this  instance,  the certified \nletter was  returned  to the  Commission,  unclaimed,  on  September 26, 2024.   But \nthe first-class letter was not returned. \n The   hearing   on   the Motion   to Dismiss   proceeded   as   scheduled   on \nSeptember  27,  2024.    Again,  Claimant  appeared at  the  hearing to  object  to \ndismissal  of  her  claim.    Respondents appeared  through  counsel  and  argued  for \ndismissal under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702(d) (Repl. 2012). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nRAY – H306170 \n \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. Respondents  have  not  proven  by  a  preponderance  of  the  evidence  that \nClaimant has failed to prosecute her claim under AWCC R. 099.13. \n4. Respondents  have  not  proven  by  a  preponderance  of  the  evidence  that \ndismissal  of  this  claim  is  warranted  under  Ark.  Code  Ann. § 11-9-702(d) \n(Repl. 2012). \n5. The Motion to Dismiss should be, and hereby is, denied without prejudice. \n6. Claimant has requested a hearing on this claim. \n7. This claim will proceed to a hearing on the merits. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996).  In turn, § 11-9-702(d) provides: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \n\nRAY – H306170 \n \n5 \n \nof  the  claim  within  limitation  periods  specified  in  subsection  (b)  of \nthis section. \n \n(Emphasis   added)      Under   Ark.   Code   Ann.   §   11-9-705(a)(3)   (Repl.   2012), \nRespondents  must  prove  by  a  preponderance  of  the  evidence  that  dismissal \nshould be granted.  The standard “preponderance of the evidence” means the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix  v. Wilson \nWorld  Hotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting  evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n At the hearing, Claimant testified that the reason that she has not acted to \nprosecute her claim since her attorney’s withdrawal was because she was unsure \nof what to do.  In addition, she explained that she did not receive either version of \nthe  20-day  letter  or  the  certified  mailing  of  the  Notice  of  Hearing,  explaining  that \nher mail is mis-delivered at times to a neighbor.  The neighbor is disabled, making \n\nRAY – H306170 \n \n6 \n \nretrieval of the mail difficult.  Claimant further testified that she continues to have \nproblems  with  her  left  hand  and  arm  as  a  result  of  her  alleged  work-related \nincident,  that  she  objects  to  the  dismissal  of  her  claim,  and  that  she  wants  a \nhearing on her entitlement to additional treatment. \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  Motion  to  Dismiss  hearing \nunder Rule 13, she has not yet abridged that rule.  By the same token, I find that \nwhile  §  11-9-702(d)  provides  that  a  claim  “may”  (clearly  intending  that  the \nadministrative  law  judge  has  discretion  in  the  matter)  be  dismissed  for  failure  to \nrequest a hearing within six months of the filing of the claim, dismissal is not yet \nwarranted here.  The Motion to Dismiss is thus denied. \n Based  on  Claimant’s  hearing  request,  prehearing  questionnaires  will  be \nimmediately issued to the parties, and this matter will proceed to a full hearing on \nthe merits. \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, the Motion to Dismiss is hereby denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":9495,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H306170 ROSHANDRA RAY, EMPLOYEE CLAIMANT HINO MTRS. MFG. USA, INC., EMPLOYER RESPONDENT FIRST LIBERTY INS. CORP., CARRIER RESPONDENT OPINION FILED SEPTEMBER 30, 2024 Hearing before Administrative Law Judge O. Milton Fine II on September 27, 2024, in Forrest C...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:49:39.290Z"},{"id":"alj-H303020-2024-09-27","awccNumber":"H303020","decisionDate":"2024-09-27","decisionYear":2024,"opinionType":"alj","claimantName":"Casey Thompson","employerName":"Locomotive Service Inc","title":"THOMPSON VS. LOCOMOTIVE SERVICE INC. AWCC# H303020 September 27, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/THOMPSON_CASEY_H303020_20240927.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOMPSON_CASEY_H303020_20240927.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H303020 \n \n \nCASEY THOMPSON, EMPLOYEE CLAIMANT \n \nLOCOMOTIVE SERVICE INC., EMPLOYER RESPONDENT \n \nBERKSHIRE HATHAWAY HOMESTATE, CARRIER RESPONDENT \n \n \n \n OPINION FILED SEPTEMBER 27, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by ZACHARY F. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On August 20, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on June 20, 2024, and a pre-hearing order was filed on that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n 2.   The employee/employer/carrier relationship existed on February 26, 2023. \n            3.   Respondents have controverted the claim in its entirety.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \n\nThompson-H303020 \n2 \n \nwere limited to the following: \n1.  Whether claimant sustained a compensable injury on February 26, 2023. \n2.  Whether claimant is entitled to medical benefits. \n All other issues are reserved by the parties. \nThe  claimant  contends that “He  is  entitled  to  the  medical  treatment  recommended  by  Dr. \nZhang, as such treatment is necessary for his compensable injury. The claimant further contends that \nthe respondents have denied his entitlement to such treatment and have controverted any appropriate \nbenefits that may arise in the future from such medical treatment.” \nThe respondents contend that “Clamant was not injured in a MVA on February 26, 2023. The \nclaimant’s alleged need for treatment is because of a preexisting condition. The  recommended \ntreatment is not reasonable and necessary.”  \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on June \n20, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.  Claimant has failed to prove by a preponderance of the evidence that he suffered a \ncompensable injury on February 26, 2023.  \nHEARING TESTIMONY \n \n Claimant  testified  that  on  February  26, 2023, he  was  involved  in  an accident  when  the  fuel \ntanker truck he was driving was struck from behind by an inattentive driver. The force of the collision \n\nThompson-H303020 \n \n3 \n \n \ncaused  him  to  spill  the  coffee  in  his  hand. While  there  was  no  discernable  damage  to  the  vehicle \nclaimant was operating, the sedan was disabled due to the damage to it.  \n Claimant  was  already  seeing  Dr.  William  Willis  for  problems  with  his  neck,  back,  and \nshoulders, and had seen Dr. Willis three days before the collision. Among the dozen or more current \nproblems that were listed was cervicalgia; claimant had undergone a C4-C7 anterior cervical fusion in \n2011. Because claimant had a regularly scheduled appointment with Dr. Willis on March 23, 2023, he \ndid not immediately seek medical treatment for his neck pain. When the soreness and stiffness across \nhis shoulders and neck continued, Dr. Willis recommended an MRI or a CT scan. Claimant said the \npain that he was experiencing after the collision was radiating down the left side of his neck and across \nthe shoulder into his left arm, which was not occurring before the accident.  \nAfter the MRI, claimant saw Dr. Shihao Zhang who prescribed physical therapy and injections \nfor  the  neck  condition. Claimant said the workers’ compensation carrier refused to pay for the \ninjections. Claimant  said  Dr.  Zhang  recommended  surgery  and that he  is  willing  to  undergo  that \nprocedure because he cannot stand the pain and the popping in his neck.   \n On cross examination, claimant confirmed that he had a cervical fusion on three levels of his \nneck in 2011 and had treated with Dr. Willis for pain management for his lower back and neck issues \nprior to the collision on February 26, 2023. Regarding the accident itself, claimant said that he was a \nbit sore and stiff but did not have any injuries that were bleeding or anything like that. He continued \nto work normal hours during the following days and weeks. Claimant explained that Dr. Willis had \nrecommended that he see a neurosurgeon and the physician that had done his neck and back surgery \nhad retired, so he saw Dr. Zhang at the same facility.  \n \n \n\nThompson-H303020 \n \n4 \n \n \n \nREVIEW OF THE EXHIBITS \n \n The parties submitted medical records from November 20, 2022, through March 4, 2024, and \neliminated most of the duplicate records. These records included those from Dr. William Willis, Dr. \nShihao Zhang, the MRI reports of May 25, 2023, and October 12, 2023, and both a chart review and \nindependent medical evaluation conducted by Dr. Luke Knox. While there are over a hundred pages \nof these records, claimant’s testimony adequately summarized what was contained in the records from \nDr. Willis. He had treated for neck and back issues for years before February 26, 2023 and did not go \nsee  Dr.  Willis  until  almost  a  month  after  the  accident  when  he  kept  his  regularly  scheduled \nappointment for March 23, 2023 and complained that the accident caused his neck to hurt more than \nit had before February 26, 2023.  At respondent’s request, Dr. Knox did a thorough  chart  review \nwhich I found to be an accurate summary of what had taken place prior to the independent medical \nevaluation. The parts of these records which are determinative to the issue of compensability will be \ndiscussed below. \n \nADJUDICATION \n \n As established by the testimony and medical records, claimant has a long history of problems \nwith his neck that existed before his employment with respondent. An aggravation of a preexisting \nnon-compensable condition is considered a new injury with an independent cause, and thus must meet \nthe requirements for a compensable injury. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d \n5 (1998). Arkansas Code Annotated section 11-9-102(4)(A)(i) defines a compensable injury as: \n“An accidental injury causing internal or external physical harm to the body ...  \narising  out  of  and  in  the  course  of  employment  and  which  requires  medical \nservices or results in disability or death. An injury is \"accidental\" only if it is \ncaused  by  a  specific  incident  and  is  identifiable  by  time  and  place  of \noccurrence.”  \n\nThompson-H303020 \n \n5 \n \n \n \nThe proof supports claimant’s contention that he was involved in a motor vehicle collision \nwhile at work on February 26, 2023. His delay in seeking medical treatment is a matter of credibility, \nand I believe his testimony that the collision was hard enough to cause him to spill the coffee he had \nin his hand when his truck was struck.  \nHowever,  a compensable  injury  must  be  established  by  medical  evidence  supported  by \nobjective medical findings, Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2009). \"Objective findings\" are \nthose findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-\n102(16). Thus, to be compensable, claimant's alleged aggravation of a preexisting condition must itself \nmeet the definition of a compensable injury, and it is here that claimant’s proof is lacking.  \n Dr. Willis did not express an opinion as to whether the collision of February 26, 2023, caused \nan aggravation of claimant’s preexisting injury. I  would  not  have  expected a  general  practitioner  to \nhave  felt  qualified  to make  such  a  determination. Dr.  Willis recommended  a  CT  scan  and  then  a \nreferral to a neurosurgeon if warranted. Dr. Zhang saw claimant on October 31, 2023, following an \nMRI and  recorded: “Patient  has  adjacent  level  disease  at  C3-4  that might have  been  aggravated. \nCertainly, this could be causing his pain.” (Emphasis added). Dr. Knox did not relate the February 26, \n2023, collision to claimant’s need for treatment at the C3-4 level: “It appears the need for the anterior \ncervical discectomy and fusion, in my opinion, is preexisting to the incident occurring on 2/26/23.”   \nA doctor  need  not  be  absolute  in  an  opinion  or  use  the  magic  words  \"within  a  reasonable \ndegree of medical certainty\" so long as his medical opinion be more than speculation, Freeman v. Con-\nAgra  Frozen  Foods,  344  Ark.  296  (2001).  However, medical  opinions  based  on  \"could,\"  \"may,\"  or \n\"possibly\" lack the definiteness required to prove compensability. Frances v. Gaylord Container Corp., 341 \nArk.  527,  20  S.W.3d  280  (2000). “Might” and “could” was how Dr.  Zhang termed  the  connection \n\nThompson-H303020 \n \n6 \n \n \nbetween the collision and claimant’s neck condition at C3-4; Dr. Knox found that condition predated \nthe incident. As such, claimant lacks the objective medical evidence necessary for him to prove his \nclaim by a preponderance of the evidence, and it must therefore be denied.  \nAs I found claimant did not prove he suffered a compensable injury, his claim for additional \nmedical treatment is moot.  \nORDER \n \n For  the  reasons  set  out  above,  claimant  has  failed  to  meet  his  burden  of  proving  by  a \npreponderance of the evidence that he suffered a compensable injury on February 26, 2023. Therefore, \nhis claim for compensation benefits is hereby denied and dismissed.  \nRespondent is responsible for paying the court reporter her charges of $ 427.95 for preparation \nof the hearing transcript. \nIT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":10397,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303020 CASEY THOMPSON, EMPLOYEE CLAIMANT LOCOMOTIVE SERVICE INC., EMPLOYER RESPONDENT BERKSHIRE HATHAWAY HOMESTATE, CARRIER RESPONDENT OPINION FILED SEPTEMBER 27, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, ...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["neck","back","cervical","shoulder"],"fetchedAt":"2026-05-19T22:49:35.087Z"},{"id":"full_commission-H303578-2024-09-26","awccNumber":"H303578","decisionDate":"2024-09-26","decisionYear":2024,"opinionType":"full_commission","claimantName":"Brandon Shackelford","employerName":"Allen Family Enterprises, LLC","title":"SHACKELFORD VS. ALLEN FAMILY ENTERPRISES, LLC AWCC# H303578 September 26, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Shackelford_Brandon_H303578_20240926.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Shackelford_Brandon_H303578_20240926.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H303578 \n \nBRANDON G. SHACKELFORD, \nEMPLOYEE \n \nCLAIMANT \nALLEN FAMILY ENTERPRISES, LLC,  \nEMPLOYER \n \nRESPONDENT \nNATIONAL AMERICAN INSURANCE COMPANY, \nSEDGWICK CLAIMS MANAGEMENT \nSERVICES, INC., INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 26, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE JASON M. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nMay 3, 2024.  The administrative law judge found that the claimant proved \nhe sustained a compensable injury.  The administrative law judge found \nthat the claimant proved he was entitled to reasonably necessary medical \ntreatment and temporary total disability benefits.  After reviewing the entire \nrecord de novo, the Full Commission affirms the administrative law judge’s \nopinion as modified.      \nI.  HISTORY \n\nSHACKELFORD - H303578  2\n  \n \n \n The record indicates that Brandon George Shackelford, now age 38, \nbecame employed with the respondents, Allen Family Enterprises, LLC on \nor about July 15, 2022.  The parties stipulated that the employee-employer-\ncarrier relationship existed on or about May 5, 2023.  The claimant testified \non direct examination: \nQ.  Tell us about May the 5\nth\n of 2023.  Do you remember \nwhere you were? \n A.  Yes. \n Q.  Where was that? \nA.  It’s in Benton, Arkansas....In a residential neighborhood.  I \nshowed up.  Jackson Chandler, the guy that was just in here, \nhe was already working.  And so, I hopped out and I was \nassisting him.  I had tools, he had tools too, shovels, and they \njust wasn’t doing the job.  They wasn’t getting us nowhere for \nus to get any deeper.  So I went back and got a rock bar to \nwhere we could get deeper....The rock bar, I went and got, it’s \nroughly about six foot tall, probably, around 35, fortyish \npounds maybe.   \nQ.  Okay.  This is just a steel bar? \nA.  Yes identical looking like a blown up nail is that it looks \nlike....And so I’m using it.  I grabbed it, stabbed it in the \nground, instantly knew – I felt something in my elbow.  \nSomething was not right.... \nQ.  Now, you’re rubbing here on your right elbow? \nA.  Yes.   \nQ.  Is that where you felt the pain? \nA.  Yes....A sharp, ripping pain.... \nQ.  And did you finish out the work day? \nA.  I did finish out the work day.   \n \n The claimant’s testimony indicated that he notified the respondent-\nemployer on May 14, 2023 that an accidental injury had occurred, and that \nthe respondents directed the claimant to treat at Saline Memorial Hospital.  \n\nSHACKELFORD - H303578  3\n  \n \n \nAccording to the record, the claimant treated at Saline Memorial on May 15, \n2023: \n37-year-old male presents emergency room for complaints of \npain in his right elbow extending digitally down his right \nforearm.  Patient states that he is a line worker and was using \na heavy metal bar to break up the ground and the bar twisted \nand got out of balance causing him to twist his elbow.  Onset \nx2 weeks.  States it is just gradually getting worse and he is \nhaving difficulty using his arm....Swelling of the elbow noted, \nRight elbow.   \n \n A Nursing Assessment also indicated, “Pt arrives to the ED for eval \nof R elbow injury caused by manual labor.  Pt had his R elbow twisted in an \nawkward fashion....Injury occurred May 5\nth\n.”  The diagnosis was “Lateral \nEpicondylitis” and the claimant was treated conservatively.   \n The claimant’s testimony indicated that the respondent-employer \ndirected him to treat at Concentra Occupational Health.  The record \nindicates that Clint Bearden, PA-C treated the claimant at Concentra on \nMay 19, 2023 and diagnosed “Right elbow tendonitis.”  The Work Status \nwas, “The claimant can return to work with the following restrictions on:  \nMay 19, 2023.”  The restrictions were “No lifting more than 10 lbs right arm \nlbs.  May not grip/squeeze/pinch with right upper extremity.”  Clint Bearden \nreferred the claimant for physical therapy. \n The claimant testified that light duty with the respondent-employer \nwas not made available, and that the respondents eventually terminated his \n\nSHACKELFORD - H303578  4\n  \n \n \nemployment.  The claimant agreed on cross-examination that the \nrespondents paid him through May 26, 2023.         \n The claimant filed an APPLICATION FOR UNEMPLOYMENT \nINSURANCE BENEFITS on July 27, 2023.  The claimant reported on the \nAPPLICATION that he had been discharged on May 29, 2023.  The \nclaimant reported that the “final incident that caused the discharge” was \n“INJURY ON THE JOB” which occurred on May 5, 2023.   \n A pre-hearing order was filed on September 19, 2023.  According to \nthe pre-hearing order, the claimant contended, “The claimant contends he \nsustained compensable injuries on or about May 5, 2023, to his right arm \nand elbow; that he is entitled to temporary total disability benefits continuing \nthrough a date yet to be determined.  Claimant further contends he is \nentitled to payment of medical expenses, as well as attorney’s fees.”  The \nrespondents contended that the claimant “did not sustain a compensable \ninjury.”   \n The parties agreed to litigate the following issues: \n1. Compensability. \n2. Temporary total disability benefits. \n3. Medical benefits. \n4. Controversion. \n \nAn MRI of the claimant’s right elbow was taken on September 28, \n2023 with the following impression: \n\nSHACKELFORD - H303578  5\n  \n \n \n1. Lateral epicondylitis, manifested by high grade \nintrasubstance tearing of the common extensor tendon, on \na background of severe tendinosis. \n2. Low-grade lateral ulnar collateral ligament sprain. \n3. Mild common flexor tendinosis. \n4. Low-grade sprain anterior band ulnar collateral ligament. \n5. Mild distal biceps tendinosis.  Mild reactive bicipitoradial \nedema and/or bursitis is noted. \n6. Mild elbow osteoarthrosis.  \n \nDr. Brian Norton performed surgery on October 9, 2023:  “1.  Right \nlateral epicondylectomy with common extensor tendon repair.”  The pre- \nand post-operative diagnosis was “1.  Right lateral epicondylitis.  2.  Right \ncommon extensor tendon tear.”   \nDr. Norton signed a Return to Work/School form on January 22, \n2024:  “Please excuse Brandon for 01/22/2024.  Activity is restricted as \nfollows:  Brandon must remain off work for 4 weeks.”  The claimant testified \nthat he was undergoing physical therapy visits recommended by Dr. Norton.     \nA hearing was held on February 7, 2024.  The respondents’ attorney \nexamined Chandler Jackson Brinkman: \nQ.  Were you employed with the respondents in May of last \nyear? \n A.  Yes, sir.   \nQ.  And did you work along side the claimant, Mr. \nShackelford, who is here today? \nA.  Yes, sir.... \nQ.  What were you and the claimant doing on that day? \nA.  Most of the general labor stuff, digging holes, locating \nutilities.... \nQ.  Do you recall a time when you and Mr. Shackelford were – \nor borrowed a rock bar from another contractor? \nA.  Yes, sir.... \n\nSHACKELFORD - H303578  6\n  \n \n \nQ.  And do you recall which day that was? \nA.  That was on Monday, May the 1\nst\n.   \nQ.  Okay.  And you, specifically, recall that being a Monday? \nA.  Yes, sir. \nQ.  Okay.  And can you just tell me what happened at that \ntime? \nA.  So we got there the previous day, the previous work day.  \nOur supervisor had looked, like, indicated with spray paint \nwhere he wanted us to find certain utilities.  So we got to work \nand the ground was a little harder than we expected, so we \nwent a borrowed a rock bar, which was crooked.  We got to \nworking on it, me and Brandon together and we used the rock \nbar for – well, I used it a little less than he did, but for a \nconsiderable period of time.   \nQ.  Okay.  And did Mr. Shackelford strike the ground with the \nrock bar more than once? \nA.  Yes, sir.   \nQ.  Did he indicate at any time to you that he had injured any \npart of his body? \nA.  Yes, sir. \nQ.  At what time? \nA.  I’d say probably 20 minutes, 30 minutes in to using the \nequipment.   \nQ.  What exactly did he tell you? \nA.  Just that he didn’t think the rock bar was working right, that \nit wasn’t good to use.   \nQ.  Did he, specifically, say, “I have injured my arm”? \nA.  Yeah, I guess, you could say that.   \nQ.  Did he indicate which arm? \nA.  Not to me in particular.   \nQ.  Okay.  Do you recall what he said? \nA.  Yeah, just – you know, just, you know, “My arm’s hurting.”   \nQ.  Okay.   \nA.  Nothing sudden or –  \nQ.  And was that after multiple strikes with the rock bar by the \nclaimant? \nA.  Yes, sir.   \nQ.  Okay.  And it’s your testimony that that occurred on the \n1\nst\n? \nA.  Yes, sir.... \n \n\nSHACKELFORD - H303578  7\n  \n \n \n An administrative law judge filed an opinion on May 3, 2024.  The \nadministrative law judge found that the claimant proved he sustained a \ncompensable injury.  The administrative law judge awarded medical \ntreatment and temporary total disability benefits.  The respondents appeal \nto the Full Commission.   \nII.  ADJUDICATION \n A.  Compensability \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ...  \narising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \n\nSHACKELFORD - H303578  8\n  \n \n \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101, S.W.3d 252 (2003). \n An administrative law judge found in the present matter, “3.  The \nclaimant proved by a preponderance of the evidence that he suffered a \ncompensable injury to his right arm/elbow by specific incident.”  The Full \nCommission affirms this finding.  The parties stipulated that the employment \nrelationship existed on or about May 5, 2023.  The claimant testified that, \nwhile performing employment services for the respondents, he manually \n“stabbed” a ground surface with a heavy steel bar.  The claimant testified \nthat he felt an instant “sharp, ripping pain” in his right elbow.  A co-worker, \nChandler Brinkman, testified that he was present at the work site in May \n2023, and he corroborated the claimant’s testimony that a work-related \nincident occurred.   \n The claimant testified that the respondents directed him to seek \ntreatment at Saline Memorial Hospital.  The nursing notes at Saline \nMemorial on May 15, 2023 corroborated the claimant’s testimony that he \ninjured his right elbow while “using a heavy metal bar to break up the \nground.”  The medical report indicated, “the bar twisted and got out of \nbalance causing him to twist his elbow....Injury occurred May 5\nth\n.”  \nObjective findings were noted on May 15, 2023, namely “Swelling of the \nright elbow[.]”  Additional objective findings were reported in the MRI of the \n\nSHACKELFORD - H303578  9\n  \n \n \nclaimant’s right elbow taken September 28, 2023.  These objective medical \nfindings included “intrasubstance tearing of the common extensor tendon[.]” \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a “compensable injury” in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012).  The \nclaimant proved that he sustained an accidental injury causing physical \nharm to the body.  The claimant proved that the accidental injury arose out \nof and in the course of employment, required medical services, and resulted \nin disability.  Whether the accident occurred on May 1, 2023 as alleged by \nMr. Brinkman, or May 5, 2023, as contended by the claimant, the injury was \ncaused by a specific incident and was identifiable by time and place of \noccurrence.  The occurrence of the injury was “capable of being identified.”  \nSee Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 \n(2001).  In addition, the claimant established a compensable injury by \nmedical evidence supported by objective findings.  These objective medical \nfindings included post-injury swelling in the claimant’s right elbow and the \n“intrasubstance tearing” shown in the September 28, 2023 MRI.  The \nclaimant proved that these objective medical findings were causally related \nto the compensable injury and were not the result of a prior nonwork-related \ninjury or pre-existing condition.          \n B.  Temporary Disability \n\nSHACKELFORD - H303578  10\n  \n \n \n For scheduled injuries the injured employee is to receive temporary \ntotal disability benefits during the healing period or until the employee \nreturns to work, whichever occurs first.  Wheeler Constr. Co. v. Armstrong, \n73 Ark. App. 146, 41 S.W.3d 822 (2001); Ark. Code Ann. §11-9-\n521(a)(Repl. 2012).  A loss in earnings is conclusively presumed under Ark. \nCode Ann. §11-9-521(a)(Repl. 2012).  Wheeler Constr. Co., supra, citing \nMinnesota Mining & Mfg. v Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).   \n The healing period is that period for healing of the injury which \ncontinues until the employee is as far restored as the permanent character \nof the injury will permit.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 \nS.W.2d 457 (1994).  If the underlying condition causing the disability has \nbecome stable and nothing further in the way of treatment will improve that \ncondition, the healing period has ended.  Id.  Whether an employee’s \nhealing period has ended is a question of fact for the Commission.  Ketcher \nRoofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995). \n An administrative law judge found in the present matter, “4.  The \nclaimant proved by a preponderance of the evidence that he is entitled to \nTTD benefits from 15 May 2023 to a date yet to be determined, less the \namount of credit the respondents may claim against any unemployment \nbenefits received by the claimant.”  The Full Commission finds that the \n\nSHACKELFORD - H303578  11\n  \n \n \nclaimant proved he was entitled to temporary total disability benefits \nbeginning May 27, 2023 until a date yet to be determined.   \n The Full Commission has found that the claimant proved he \nsustained a compensable scheduled injury on or about May 5, 2023.  The \nclaimant was assigned work restrictions beginning May 19, 2023.  However, \nthe claimant testified that the respondent-employer did not make restricted \nwork available, and that the respondents terminated his employment.  The \nclaimant agreed on cross-examination that the respondents paid his wages \nthrough May 26, 2023.   \n The Full Commission therefore finds that the claimant proved he has \nnot returned to work after May 26, 2023 and that the claimant remains \nwithin his healing period.  The claimant underwent a right lateral \nepicondylectomy on October 9, 2023.  The Full Commission finds that Dr. \nNorton’s treatment was reasonably necessary in accordance with Ark. Code \nAnn. §11-9-508(a)(Repl. 2012).  As we have noted, Dr. Norton signed a \nReturn to Work/School from on January 22, 2024:  “Please excuse Brandon \nfor 01/22/2024.  Activity is restricted as follows:  Brandon must remain off \nwork for 4 weeks.”  The claimant testified that he was receiving physical \ntherapy as recommended by Dr. Norton.  The evidence therefore \ndemonstrates that the claimant remains within a healing period and has not \nreturned to work.  There are no reports from Dr. Norton or another qualified \n\nSHACKELFORD - H303578  12\n  \n \n \nphysician indicating that the claimant has reached the end of his healing \nperiod with regard to the compensable scheduled injury.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved by a preponderance of the evidence that he \nsustained a compensable injury.  The claimant proved that he was entitled \nto temporary total disability benefits beginning May 27, 2023 until a date yet \nto be determined.  The respondents are entitled to an appropriate credit for \nunemployment insurance benefits received by the claimant pursuant to Ark. \nCode Ann. §11-9-506(a)(Repl. 2012).  The claimant proved that the medical \ntreatment of record, including surgery performed by Dr. Norton, was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  The claimant’s attorney is entitled to fees for legal \nservices in accordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For \nprevailing on appeal to the Full Commission, the claimant’s attorney is \nentitled to an additional fee of five hundred dollars ($500), pursuant to Ark. \nCode Ann. §11-9-715(b)(Repl. 2012). \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents \n \n\nSHACKELFORD - H303578  13\n  \n \n \nDISSENTING OPINION \n \nI must respectfully dissent from the majority opinion finding that the \nclaimant met his burden of proving that he sustained a compensable \nspecific incident injury on May 5, 2023, is entitled to reasonably necessary \nmedical treatment and temporary total disability benefits from May 27, \n2023, to a date to be determined as well as an attorney’s fee.  \n The claimant contends that he was injured on May 5, 2023, while \nusing a rock bar tool to help loosen solid ground while working for the \nrespondent employer.  The claimant testified that when he stabbed the \nthirty-five (35) pound bar into the ground, he “instantly knew -- I felt \nsomething in my elbow.  Something was not right.”  \n Ten days later, the claimant presented to the emergency room at \nSaline Memorial Hospital where he was diagnosed with lateral epicondylitis \nleft elbow.  The claimant was ultimately referred to Dr. Brian Norton, and on \nOctober 9, 2023, over 5 months after the alleged injury, Dr. Norton \nidentified tearing at the right extensor tendon and performed surgery. \n After the claimant’s employment with the respondent employer \nended, the claimant applied for and was awarded $4,880.00 in \nunemployment benefits. \n As of his January 22, 2024 post-op follow-up with Dr. Norton, the \nclaimant was to remain off work for an additional four weeks.  \n\nSHACKELFORD - H303578  14\n  \n \n \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i). This, therefore, requires that a claimant establish by a \npreponderance of the evidence: (1) an injury arising out of and in the course \nof employment; (2) that the injury caused internal or external physical harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings establishing an \ninjury as defined in Ark. Code Ann. §11-9-102(16) and; (4) that the injury \nwas caused by a specific incident identifiable by time and place of \noccurrence.  Ark. Code Ann. § 11-9-102(4)(A)(i). \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\"  Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16).  \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness. Id.  \n\nSHACKELFORD - H303578  15\n  \n \n \nThe Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony that it deems worthy of belief. \nWhite v. Gregg Agricultural Enterprises, 72 Ark. App. 309, 37 S.W.3d 649 \n(2001). \nHere, the claimant alleges that he sustained a compensable specific \nincident injury on May 5, 2023; however, this contention is not supported by \nthe medical evidence.  The claimant’s injury, lateral epicondylitis (or tennis \nelbow), is widely considered to be a repetitive use injury.  This is reflected in \nthe records from the claimant’s initial visit to the emergency room at Saline \nMemorial, which state, “pt ambulatory to triage for eval of non-traumatic \nright forearm pain x 2 weeks; gradually worsening, full rom noted in triage”.  \nAnother finding during the initial ER exam was, “Impression:  overuse \nsyndrome”. \nOn the basis of the medical records alone, it is obvious that the \nclaimant did not suffer a specific incident injury on May 5, 2023.  There is \nsimply no evidence that a specific incident on that date was mentioned in \nthe days or weeks following his purported injury.  The claimant’s claim \nshould be rejected on this basis alone.  However, this matter ultimately \ncomes down to a question of the claimant’s credibility. \n\nSHACKELFORD - H303578  16\n  \n \n \nIn workers’ compensation cases, a decision often rests solely on the \ncredibility of the claimant as a witness.  A determination of the weight and \ncredibility of a witness's testimony is exclusively within the province of the \nCommission.  Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 \n(1989).  The Commission has the right to believe or disbelieve the \ntestimony of any witness, and the Commission's decision is entitled to the \nweight we give a jury verdict.  Tyson Foods, Inc. v. Disheroon, 26 Ark. App. \n145, 761 S.W.2d 617 (1988).  Importantly, a claimant’s testimony is never \nuncontroverted.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d \n457 (1994). \nThe sole witness on behalf of the claimant to prove he sustained a \nspecific incident was the claimant himself.  Throughout the process from the \ntime of the claimant’s injury to the time of the hearing, the claimant \nmisrepresented himself or the facts on multiple occasions.  In fact, the \nclaimant’s testimony was directly controverted by Chandler Brinkman who \nwas present at the time of the alleged injury.  \nMr. Brinkman testified that the claimant’s alleged injury occurred on \nMay 1, 2023, rather than May 5, 2023, as alleged by the claimant.  He \nfurther testified that he and the claimant dug a hole for more than an hour, \nnot the short period of time described by the claimant.  \n\nSHACKELFORD - H303578  17\n  \n \n \nThe claimant had been using the rock bar for a considerable amount \nof time, approximately twenty to thirty minutes, before he told Mr. Brinkman \nthat his arm was hurting.  In fact, the claimant continued working at his \nregular job through the rest of that week, and Mr. Brinkman did not recall \nthe claimant complaining about his arm. \nBeyond his unreliability regarding his alleged on-the-job injury, the \nclaimant has a history of misrepresenting the truth to further his own \nagenda.  \nWhen asked at his October 2023 deposition if he had ever been \ncharged with a crime, the claimant testified that he had a DWI in 2009 and \nstated that he had no other criminal record.  However, upon further \nquestioning, the claimant finally admitted that he pled guilty to possession \nof drug paraphernalia in 2017.  The claimant did not inform the \nrespondent’s attorney of this guilty plea because he believed his record had \nbeen sealed.  \nThe claimant also misrepresented the truth to obtain unemployment \nbenefits after his employment with the respondent employer ended.  When \nhe applied for benefits, the claimant stated that he could begin work \nimmediately, could work full time, and had no disabilities which limited his \nability to perform his normal job duties.  However, at the hearing, the \n\nSHACKELFORD - H303578  18\n  \n \n \nclaimant stated, “my doctor said for me to remain off of work and don’t even \nthink about getting ready to go back.”  \nThe claimant’s testimony in this matter is simply not credible and we \nare left to rely solely upon the medical evidence and testimony of \nuninterested parties to reach our judgment.  The weight of the credible \nevidence fails to show the claimant sustained a compensable specific injury \nin May 2023.  The claimant’s history of failing to be truthful when it suits him \nto protect himself or to obtain benefits cannot be disregarded here. \nTherefore, I find that the claimant has not proven by a preponderance of the \ncredible evidence that he sustained a compensable injury, thus, all other \nissues are moot. \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":25511,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303578 BRANDON G. SHACKELFORD, EMPLOYEE CLAIMANT ALLEN FAMILY ENTERPRISES, LLC, EMPLOYER RESPONDENT NATIONAL AMERICAN INSURANCE COMPANY, SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","sprain","repetitive"],"fetchedAt":"2026-05-19T22:29:45.079Z"},{"id":"alj-H306859-2024-09-26","awccNumber":"H306859","decisionDate":"2024-09-26","decisionYear":2024,"opinionType":"alj","claimantName":"Juan Hernandez","employerName":"Hugo Precsision Heat & Air","title":"HERNANDEZ VS. HUGO PRECSISION HEAT & AIR AWCC# H306859 September 26, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HERNANDEZ_JUAN_H306859_20240926.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HERNANDEZ_JUAN_H306859_20240926.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H306859 \n \nJUAN HERNANDEZ, EMPLOYEE       CLAIMANT \n \nHUGO PRECSISION HEAT & AIR, LLC, EMPLOYER        RESPONDENT \n \nTECHNOLOGY INSURANCE COMPANY/ \nAMTRUST NORTH AMERICA, CARRIER/TPA              RESPONDENT \n  \n \n \nOPINION FILED 26 SEPTEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 25 September 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nThe Frye Law Firm, William C. Frye, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 25 September 2024. This case relates to an alleged workplace injury \nsustained on or about 25 September 2023. A Form AR-C then filed by the claimant on 20 \nOctober 2023, claiming injuries to his right upper extremity. A First Report of Injury was \nfiled by the respondents on 6 November 2023; and a Form AR-2 accepting the claim was \nfiled on or about the same day. On 7 November 2023, the Commission received a letter from \nthe respondents’ counsel indicating that benefits were being paid on the claim. \n On 31 July 2024, the respondents requested a dismissal of this matter under AWCC \nRule 099.13 for lack of prosecution. Letters providing notice of that motion and notice of the \nhearing were sent to the claimant, consistent with the Commission’s practice. I noted at the \nhearing that mailings from the Commission to claimants are sent via both First Class and \nCertified Mail with return receipts requested. Returned mail is regularly appended to the \n\nJ. HERNANDEZ- H306859 \n2 \n \nCommission’s file. The Commission’s file includes the return of the unclaimed Certified \nMailings, but no return of the First-Class mailings. \nThe respondents appeared on 25 September 2024, presented their motion, and \noffered supporting evidence into the record. See Exhibit No. 1. As argued by the \nrespondents at the hearing, the file reflects no request for a hearing on a claim in the \nrelevant time preceding the filing of their motion. And the claimant did not appear at the \nhearing to resist the dismissal of this claim. According to counsel, the claimant has \nreturned to work without any apparent issue and seems to have abandoned his pursuit of \nthis claim. Counsel also noted that with a dismissal without prejudice, the claimant retains \nthe option to refile his claim through the expiration of the applicable limitations period. \n Our Rule 99.13 provides for a dismissal for failure to prosecute an action upon \napplication by either party. Based on the record, the available evidence, and the arguments \nof the respondents’ counsel, I find that the respondents’ Motion to Dismiss should be \ngranted and that the matter should be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3059,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H306859 JUAN HERNANDEZ, EMPLOYEE CLAIMANT HUGO PRECSISION HEAT & AIR, LLC, EMPLOYER RESPONDENT TECHNOLOGY INSURANCE COMPANY/ AMTRUST NORTH AMERICA, CARRIER/TPA RESPONDENT OPINION FILED 26 SEPTEMBER 2024 Heard before Arkansas Workers’ Compensation Commiss...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:49:30.791Z"},{"id":"alj-H207751-2024-09-25","awccNumber":"H207751","decisionDate":"2024-09-25","decisionYear":2024,"opinionType":"alj","claimantName":"Jenifer Williams","employerName":"Home To Community Living, Inc","title":"WILLIAMS VS. HOME TO COMMUNITY LIVING, INC. AWCC# H207751 September 24, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILLIAMS_JENIFER_H207751_20240925.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILLIAMS_JENIFER_H207751_20240925.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207751 \n \nJENIFER L. WILLIAMS,  \nEMPLOYEE CLAIMANT \n \nHOME TO COMMUNITY LIVING, INC. \nUNINSURED EMPLOYER RESPONDENT \n \nARKANSAS WORKERS’ COMPENSATION  \nCOMMISSION COMPLIANCE DIVISION, \nINS. CARRIER/TPA  RESPONDENT \n \nOPINION FILED SEPTEMBER 24, 2024 \n \nHearing  before  the  Arkansas  Workers’  Compensation  Commission  (the  Commission), \nAdministrative Law Judge (ALJ) Mike Pickens, on July 2, 2024, in Little Rock, Pulaski County, \nArkansas.  \n \nThe claimant, Ms. Jennifer L. Williams, appeared pro se.  \nThe uninsured respondent was represented by the Honorable Caleb Ben Baumgardner, Sutter & \nGillham, PLLC, Little Rock, Pulaski County, Arkansas.  \n \nINTRODUCTION \n           In the prehearing order filed April 5, 2024, the parties agreed to the following stipulations, \nwhich they affirmed on the record: \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n2. The employer/employee/carrier-TPA relationship existed with the claimant at all \nrelevant times including September 11, 2022, when the claimant allegedly sustained \ninjuries to various parts of her body as the result of an alleged work-related assault. \n \n3. The parties shall exchange wage records and confer as soon as possible and be \nprepared  to  stipulate to  the  claimant’s  average  weekly  wage  (AWW)  and  the \ncorresponding indemnity benefit rates preferably before or at the hearing. \n \n4. The respondent has controverted this claim in its entirety. \n \n \n\nJenifer L. Williams, AWCC No. H207751 \n \n2 \n \n \n5. The parties specifically reserve any and all other issues for future determination \nand/or litigation. \n \n(Commission’s Exhibit 1 at 1-2; Hearing Transcript at 7-9) (Emphasis in original). At the hearing \nthe parties supplemented these stipulations by agreeing to an AWW of $510, which corresponds to \nweekly indemnity rates of $340 for temporary total disability (TTD), and $255 for permanent \npartial disability (PPD) benefits, if the claim is deemed compensable. (Comms’n Ex. 1 at 2; T. 7-\n9).  \n          Pursuant to the parties’ mutual agreement the issues litigated at the hearing were: \n \n1. Whether the claimant sustained compensable injuries within the meaning of the \nArkansas’ Workers’ Compensation Act (the Act) to her various parts of her body as \nthe result of an alleged work-related assault which occurred on September 11, 2022. \n \n2. Whether the claimant’s alleged injuries were substantially occasioned by the use of \nalcohol or other intoxicants; and/or whether the claimant provoked the assault and/or \nwhether the assault was personal, and not work-related, in nature. \n \n3. If the claimant’s alleged injuries are deemed compensable, the extent to which she is \nentitled to medical and indemnity benefits. \n  \n4. If the claimant hires an attorney, whether the claimant’s attorney is entitled to a \ncontroverted fee on these facts. \n \n5. The parties specifically reserve any and all other issues for future determination \nand/or litigation. \n \n(Comms’n Ex. 1 at 2; T. 7-9). \n \n        The claimant contends that on September 11, 2022, she sustained injuries to various parts of \nher body as the result of an alleged work-related assault. The claimant contends she is entitled to \npayment of her related, reasonably necessary medical treatment, and to commensurate indemnity \nbenefits as the evidence and Act require. The claimant reserves any and all other issues for future \ndetermination and/or litigation. (Comms’n Ex. 1 at 2-3; T. 7-9). \n\nJenifer L. Williams, AWCC No. H207751 \n \n3 \n \n        The uninsured respondent, Home to Community Living, Inc. (the uninsured respondent; the \nrespondent; or HCL) contends that although the claimant alleges a work-related incident occurred \non or about September 11, 2022, she did not submit paperwork, nor did she report any alleged \ninjury(ies) to HCL until September 14, 2022. The respondent contends the paperwork the claimant \nsubmitted to HCL on 9/14/2022 was dated September 12, 2022, and included a discharge summary \nindicating she had been treated for a facial contusion and could return to work on September 13, \n2022. The respondent contends the alleged injury(ies) did not occur at work, and that the claimant \ncannot meet her burden of proof in demonstrating her injury(ies) is (are) “compensable” within \nthe Act’s definition. The respondent further contends that if the claimant’s alleged injury(ies) \noccurred at work, it (they) was (were) substantially occasioned by the use of alcohol; and/or the \nclaimant provoked the incident that allegedly resulted in her injury(ies) and, therefore, the assault \nwas  personal and  not  work-related in  nature. Finally,  the  respondent  reserved the  right  to \nsupplement its contentions to assert any and all other applicable defenses and arguments upon the \ncompletion of necessary investigation and discovery; and it specifically reserved any and all other \nissue(s) for future determination and/or litigation. (Comms’n Ex. 1 at 3; T. 7-9). \n          The record herein consists of the hearing transcript, and any and all exhibits contained \ntherein and attached thereto.  \nSTATEMENT OF THE CASE \n          The claimant, Ms. Jenifer L. Williams (the claimant), is 27 years old. She has a G.E.D. and \nhas been employed in various positions such as a cook and food service worker with different \nemployers caring for elderly and physically/mentally challenged and/or disabled patients. She \ncurrently works as a cook at Colonel Glenn Health & Rehab where she began working in May of \n2021. Approximately two (2) days after the date of the alleged subject injury – September 11, 2022 \n\nJenifer L. Williams, AWCC No. H207751 \n \n4 \n \n(9/11/2022) – the claimant returned to work for the uninsured respondent-employer, HCL, where \nshe continued to work until late October 2022 or early November 2022. In early December 2022 the \nclaimant became associated with HireQuest, a temporary service, through which she obtained a job \nwith the Arkansas Heart Hospital for a period of time. (T. 19-22; 43-47). \n          On the date of the subject incident, 9/11/2022, the claimant was working the 7 p.m. to 7 a.m. \nshift at HCL, where her job duties included cooking for, taking food to, and washing clothes for \nthree (3) mentally challenged and/or disabled patients. At about 3-4 a.m., on September 11, 2022, \nthe claimant apparently had been asked to go to a room shared by two (2) male patients to ask that \nthey turn down their music. She testified she was supposed to keep the two (2) patients “apart”, but \nshe  apparently  was  having  some  difficulty  doing  so  because  she  called  Thomas  (Brooks),  a \nsupervisor, for assistance. The claimant testified she was sitting in the room writing a required job-\nrelated report concerning what the patients were doing, and what she was doing when one of the \npatients who had behavioral issues (Mr. Jesse Poole) came over to her and started hitting her, \npunching her in the head and face. She testified Mr. Poole hit her about the head and face five (5) \nor six (6) times causing bruising, swelling, headaches, and dizziness, that he broke her phone, and \nshe never hit him back. (T. 22-31; 33-36; 37-73).  \n          The claimant testified she called 911 and the police and an ambulance responded to the call. \nShe was sitting in the back of the ambulance when Mr. Thomas Brooks and Mr. Elwood Marks, \nsupervisors and employees of HCL, took pictures of her injuries. The claimant also took pictures of \nher injuries after the incident, which she gave to HCL. Neither party introduced any pictures of the \nclaimant’s injuries into evidence at the hearing. The claimant testified she did not ride in the \nambulance to the hospital because Mr. Brooks told her it would cost $1,000 if she rode in it, so she \nrode to the hospital, CHI St. Vincent Infirmary Medical Center (St. Vincent) in Little Rock, with \n\nJenifer L. Williams, AWCC No. H207751 \n \n5 \n \nMr. Elwood Marks. She denied refusing to ride in the ambulance, thus allegedly refusing medical \ncare. (T. 23-73).  \n          Following her evaluation and treatment at St. Vincent the claimant initially was diagnosed \nwith: “Facial contusion. Headache-Recurrent; Post concussion syndrome; Recurrent headache.”  \nRespondent’s Exhibit 4 at 1-2). The claimant underwent tests, evaluations, and treatment from \nSeptember 11, 2022, through November 11, 2022, incurring approximately $4,000 to $5,000 in \nmedical bills, which remain unpaid. (RX4 at 1-136; T. 25-73). The health care professionals also \nprovided her medical information concerning post-traumatic stress disorder (PTSD), and post-\nconcussion syndrome. (RX4 at 108-125).  \n          The claimant testified she had no personal relationship with her assailant, Mr. Poole; and she \ndenied the respondent’s allegations she had accused Mr. Poole of homosexual activity, thus allegedly \nprompting  his  attack.  She  also denied she  was  intoxicated  or  otherwise  impaired, which  the \nrespondents allege substantially occasioned the assault and her injuries. It is an undisputed fact the \nrespondent did not require the claimant to undergo any drug or alcohol testing following the subject \n9/11/2022  work  incident;  therefore,  the  record  is  devoid  of  any  drug  or  alcohol  test  results \nwhatsoever. (T. 32-73; 204-205; Respondent’s Exhibits 1-4). \n          The  claimant testified  that  her mother,  Ms.  Marilyn  G. Willimas, took her to  work on \nSeptember 10, 2022, the evening before the early morning 9/11/2022 work incident occurred, for \nthe beginning of her 7 p.m. – 7 a.m. shift at HCL. Ms. Marilyn Williams testified in person at the \nhearing and, under oath, corroborated the claimant’s testimony. (T. 57-58; 74-87). The claimant’s \nmother in essence testified the claimant showed no evidence of intoxication or impairment when \nshe dropped her off at work on the evening of September 10, 2022, before the beginning of her \nSeptember 10-11, 2022, 7 p.m. – 7 a.m. shift. (T. 75-87). One of the respondent’s witnesses, Mr. \n\nJenifer L. Williams, AWCC No. H207751 \n \n6 \n \nLeroy Jones, Jr., a former paramour of the claimant, initially testified he had taken the claimant to \nwork in the morning for her shift at HCL on 9/11/2022, the day of the alleged incident, and that she \nhad asked him to stop at a Circle K on the way to work where he alleged she purchased a 24-ounce \nbeer which she was drinking on the way to work and as she got out of the car to go into work. Later, \nafter  prompting  questions  on  re-cross  examination  from  the  respondent’s  attorney,  Mr.  Jones \nchanged the story he told on direct examination and said he took the claimant to work in the evening, \nnot the morning. (T. 88-116).  \n          The respondents called a total four (4) witnesses to testify at the hearing: Mr. Leroy Jones, Jr.; \nMr. Thomas Brooks; Mr. Jesse Poole, the assailant; and the uninsured respondent’s/HCL’s owner, \nMs.  Rasheema  Britt. (T.  159-173). Also,  among  other  documentary  evidence the  respondent \nintroduced a report dated “Friday, December 30, 2022”, almost three (3) months after the date of \nthe subject 9/11/2022 work incident, which they prepared allegedly pursuant to a self-investigation \nthey had undertaken after the 9/11/2022 incident. (Respondents’ Exhibit 1 at 1-3). The respondent \nintroduced this report in support of their contentions the assault was substantially occasioned by the \nclaimant’s alleged intoxication, and that she allegedly provoked the assault by – again, allegedly – \naccusing Mr. Poole of homosexual activity, thus rendering it personal and nonwork-related in nature. \nEach of the respondent’s witnesses, whose testimony relevant to this opinion will be discussed as \nneeded in more detail in the “Discussion” section, infra, ostensibly testified in support of HCL’s \npurported findings contained in this report. (T. 88-203). \nDISCUSSION \n The Burden of Proof \n  When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \n\nJenifer L. Williams, AWCC No. H207751 \n \n7 \n \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2024 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-9-\n704(c)(3) (2024 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2024 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. App. \n196, 737 S.W.2d 633 (Ark. App. 1987). \n  All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, 35 \nArk. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, 595 \nS.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility of \nthe witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \n  The Commission has the duty to weigh the medical evidence just as it does any other \nevidence, and its resolution of the medical evidence has the force and effect of a jury verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \n\nJenifer L. Williams, AWCC No. H207751 \n \n8 \n \nprovince to weigh the totality of the medical evidence and to determine what evidence is most \ncredible given the totality of the credible evidence of record. Minnesota Mining & Mfg’ing v. Baker, \n337 Ark. 94, 989 S.W.2d 151 (1999). A claimant’s testimony is never considered uncontroverted.  \nNix  v.  Wilson  World  Hotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a \nwitness’s credibility and how much weight to accord that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). \n         In order to prove a compensable injury as a result of a specific incident the claimant must \nestablish  by  a  preponderance  of  the  evidence:  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment;  (2)  that  the  injury  caused  internal  or  external  harm  to  the  body  which  required \nmedical services or resulted in disability or death; (3) medical evidence supported by objective \nfindings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the injury; and (4) that the \ninjury was caused by a specific incident identifiable by  time  and  place  of  occurrence. Ark. \nCode Ann. § 11-9-102(4)(A)(i) (2024 Lexis Replacement).  \n        Ark.  Code  Ann. Section  11-9-102(4)(B)(iv)(a)  (2024  Lexis  Repl.) specifically  excludes \nfrom the definition of “compensable injury” an injury “substantially occasioned by the use of \nalcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders.” Ark. \nCode Ann. Section 11-9-102(4)(B)(iv)(b) (2024  Lexis Repl.) states: “The presence of alcohol, \nillegal drugs, or prescription drugs used in contravention of a physician’s orders shall create a \nrebuttable  presumption  that  the  injury  or  accident  was  substantially  occasioned  by  the  use  of \nalcohol, illegal drugs, or prescription drugs used in contravention of a physician’s orders.” And \nsee, e.g., Rudick v. Unifirst Corp., 60 Ark. App. 173, 962 S.W.2d 819 (Ark. App. 1998); ERC \nContractor  Yard  &  Sales,  v.  Robertson,  60  Ark.  App.  310,  961  S.W.2d  36 (Ark.  App.  1998), \naff’d, 335 Ark. 63, 977 S.W.2d 212 (Ark. 1998). \n\nJenifer L. Williams, AWCC No. H207751 \n \n9 \n \n          The Act also specifically excludes from the definition of “compensable injury” an “[i]njury \nof any active participant in assaults or combats which, although they may occur in the workplace, \nare the result of nonemployment-related hostility or animus of one, both, or all of the combatants \nand which assault or combat amounts to a deviation from customary duties,” or an injury that was \n“inflicted upon the employee at a time when employment services were not being performed.” \n(Bracketed material added). Ark. Code Ann. Section 11-9-102(4)(B)(i), (iii) (2024 Lexis Repl.); \nand see, Dorn  v.  Housing  Authority  of  the  City  of  Pine  Bluff,  2017  Ark.  App.  309  (Ark.  App. \n2017) (Slip Opinion); Bryan v. Best Western/Coachman’s Inn, 47 Ark. App. 75, 885 S.W.2d 28 \n(Ark. App. 1994). \n          Based on the applicable law as applied to the facts of this case, I find the claimant has met \nher burden of proof in demonstrating she sustained compensable injuries to her head and face as \na  result  of  the  undisputed  work-related  assault  of  September  11,  2022.  I  further  find  the \nrespondent  has  failed  to  meet  its  burden of  proof  in  demonstrating  the assault  was  either \nsubstantially occasioned  by the use of  alcohol, or that the  claimant provoked it, allegedly thus \nrendering it personal and nonwork-related in nature, for the following reasons. \n          First, there exists such a preponderance of evidence – both in the form of the witnesses’ \ntestimony  and  the  documentary  evidence  of  record – making  it  abundantly  clear  that  on \nSeptember 11, 2022, Mr. Jesse Poole, a patient under HCL’s care, assaulted the claimant and hit \nher about the head and face causing injuries to her head and face that required immediate medical \nattention, evaluation, and treatment. Indeed, by their witnesses’ own admissions the respondent \nwas aware of the assault on the very morning it occurred, and very soon after it occurred. In fact, \nMr. Thomas Brooks, HCL’s community director, testified the claimant called him in the early \nmorning  hours  telling  him  about  the  incident,  and  that  he  was  at  HCL  when  the  police  and \n\nJenifer L. Williams, AWCC No. H207751 \n \n10 \n \nambulance  arrived  after  the  claimant  called  911.  (T.  138-144). Consequently,  based  on  all  the \ncredible evidence of record it is beyond reasonable dispute the claimant was injured as a result of \nMr. Poole’s assault of 9/11/2022, and that this assault occurred within the course and scope of \nher employment.   \n          Second, there exists grossly insufficient credible evidence of record demonstrating either \nthat the claimant’s injuries were substantially  occasioned  by  the  use  of  alcohol,  or  that she \nprovoked the assault thereby somehow making it personal and nonwork-related in nature. Again, \none need only look as far as the testimony of the respondent’s own witnesses to  conclude – \nespecially in light of the entirety of the credible evidence of record – that the respondent’s failed \nto  even  meet  the  burden  of  proof  necessary  to raise the rebuttable presumption the claimant’s \ninjuries were substantially occasioned by the use of alcohol. See, Rudick and ERC, supra.  \n          Mr.  Brooks, HCL’s community director, testified he was the author of the respondent’s \n“investigative report” dated 12/30/2022; that he did not smell alcohol on the claimant’s breath \nafter Mr. Poole assaulted her, nor did he apparently see any signs of intoxication as he testified \nhe never asked the claimant to undergo an alcohol or drug test, nor did he request or cause anyone \nto conduct such a test. There exists no evidence the police who responded to the claimant’s 911 \ncall following the 9/11/2022 incident, or that the health care providers who evaluated and treated \nher after the incident, were concerned the claimant was or may have been intoxicated or otherwise \nimpaired by alcohol at the time of the incident. (RX4 at 1-36). \n          Significantly,  after having  had  the  opportunity to personally observe Mr. Leroy Jones’s \ndemeanor, and to  make other  relevant  personal  observations  as  he  testified (including  but  not \nlimited to his looking at and making eye contact with HCL’s owner, Ms. Rasheema Britt, as if to \ndiscern her reactions to various parts of his testimony); having had the opportunity to not only \n\nJenifer L. Williams, AWCC No. H207751 \n \n11 \n \npersonally hear his testimony, but to read it in the transcript, and to consider it in light of all the \nother  credible  evidence  of  record,  I  find  his  testimony  to  be  obviously  biased, inconsistent, \napparently contrived and, in short, incredible on these facts. (T. 88-203).  \n          Third, specifically concerning the respondent’s contention the claimant allegedly provoked \na dispute that was nonwork-related in nature, Mr. Brooks, HCL’s community director, testified \nhe  had  no  personal  knowledge  as  to  whether  the  claimant  had in  fact accused Mr.  Poole,  the \nmentally challenged/disabled HCL patient who attacked and assaulted her in the early morning \nhours of 9/11/2022, of engaging in homosexual activity. Moreover, even if (T. 123-28; T. 118-\n54). \n          Fourth,  while  I excluded  it  and did  not consider Mr.  Poole’s proffered  testimony  in \nrendering the opinion herein,  I found it telling and somewhat desperate – even disingenuous –  \nthe respondent’s even attempted to elicit the testimony of an admittedly and obviously mentally \nchallenged  and/or disabled young man, who obviously did not understand what was going on, \nand who on more than one (1) occasion looked at HCL’s owner, Ms. Britt, in what any reasonable \nperson would interpret to be his attempt to determine her reaction to what he was saying. It proved \nto be an exercise in futility to subject Mr. Poole to the stress of testifying on direct examination \nand being cross-examined at a hearing when it was readily apparent to one and all (including, in \nthe end, the respondent’s attorney) he was legally incompetent to testify, and appeared to be even \nfearful of doing so. (T. 155-172). \n          On the whole, I found the preponderance of the respondent’s witnesses’ testimony in \nsupport of their contentions to be (at least a reasonable trier of fact may reasonably conclude it to \nbe, as  I have herein) rather contrived after-the-fact and, consequently, incredible and not well-\nfounded in either law or fact. Perhaps the testimony of the uninsured respondent’s owner and \n\nJenifer L. Williams, AWCC No. H207751 \n \n12 \n \noperator, Ms. Rasheema  Britt, was the most revealing in this regard. Even though she was not \npresent at the time of the assault which resulted in the claimant’s head and face injuries, she \ntestified under oath that  based on some vague  alleged past interactions and conversations with \nthe claimant she “believes” the claimant was intoxicated at the time of the assault, the occurrence \nof which is not subject to reasonable dispute. And again, still, the claimant was never asked or \nrequired to submit herself to alcohol or drug testing either before or after the subject 9/11/2022 \nwork incident. (T. 173-203).    \n          Therefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed April 5, 2024, which \nthe  parties supplemented  and affirmed  on  the  record  at  the  hearing,  hereby  are \naccepted as facts.  \n \n2. The  claimant  has  met  her  burden  of  proof  in  demonstrating  she  sustained \ncompensable  injuries  to  her  head  and  face  directly  related  to  the  subject  work-\nrelated assault of September 11, 2022. \n                 \n3. The respondents have failed to meet their burden of proof in demonstrating that \nthe statutory provisions of either Ark. Code Ann. Sections 11-9-102(4)(B)(iv)(a)-\n(b), and/or of Ark. Code Ann. Section 11-9-102(4)(B)(i) and/or (iii) are \napplicable on these facts. \n \n4. The claimant is entitled to payment of all her related, reasonably necessary \n        medical bills and related expenses such as mileage.  \n \n5. Any issue(s) not specifically addressed herein are reserved for future litigation \nand/or determination. \n \nAWARD \n            The respondents hereby are directed to pay benefits in accordance with the “Findings of Fact \nand Conclusions of Law” set forth above. To the extent applicable herein, all accrued sums shall \nbe paid in lump sum without discount, and this award shall earn interest at the legal rate until paid \n\nJenifer L. Williams, AWCC No. H207751 \n \n13 \n \npursuant to Ark. Code Ann. Section 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. \nApp. 102, 898 S.W.2d 57 (Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, \n983 S.W.2d 126 (Ark. App. 1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d \n229 (2004).  \n          If they have not already done so, the respondents shall pay the court reporter’s invoice within \n20 days of their receipt of this opinion. \n IT IS SO ORDERED.  \n  \n                                              \n \n       Mike Pickens \n       Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":25996,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207751 JENIFER L. WILLIAMS, EMPLOYEE CLAIMANT HOME TO COMMUNITY LIVING, INC. UNINSURED EMPLOYER RESPONDENT ARKANSAS WORKERS’ COMPENSATION COMMISSION COMPLIANCE DIVISION, INS. CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 24, 2024 Hearing before the Arkans...","outcome":"affirmed","outcomeKeywords":["affirmed:1","granted:1","denied:1"],"injuryKeywords":["back","concussion"],"fetchedAt":"2026-05-19T22:49:22.370Z"},{"id":"alj-H308104-2024-09-25","awccNumber":"H308104","decisionDate":"2024-09-25","decisionYear":2024,"opinionType":"alj","claimantName":"Patricia Castellano","employerName":"Integrity","title":"CASTELLANO VS. INTEGRITY AWCC# H308104 September 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Castellano_Patricia_H308104_20240925.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Castellano_Patricia_H308104_20240925.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:49:24.507Z"},{"id":"alj-H205447-2024-09-25","awccNumber":"H205447","decisionDate":"2024-09-25","decisionYear":2024,"opinionType":"alj","claimantName":"Sarah Long","employerName":"Southeast Arkansas Education Service Cooperative","title":"LONG VS. SOUTHEAST ARKANSAS EDUCATION SERVICE COOPERATIVE AWCC# H205447 September 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/LONG_SARAH_H205447_20240925.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LONG_SARAH_H205447_20240925.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205447 \n \n \n \n \nSARAH E. LONG,  \nEMPLOYEE                                                                                                              CLAIMANT \n \n \nSOUTHEAST ARKANSAS EDUCATION \nSERVICE COOPERATIVE,  \nEMPLOYER                                                                                                         RESPONDENT  \n \n \nARKANSAS SCHOOL BOARDS ASS’N \nWORKERS’ COMPENSATION TRUST/ \nARK. SCHOOL BOARDS ASS’N \nCARRIER/TPA                                                                                                    RESPONDENT        \n             \n \n                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED SEPTEMBER 25, 2024 \n \nHearing conducted on Wednesday, September 25, 2024, before the Arkansas Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, \nin Little Rock, Pulaski County, Arkansas. \n \nThe claimant, Ms. Sarah E. Long, pro se, of McGehee, Desha County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable Carol Lockard Worley, Worley, Wood & \nParrish, Little Rock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A  hearing was  conducted  on Wednesday,  September  25,  2024,  to  determine  whether  this \nclaim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) \n(2024) Lexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n\nSarah E. Long, AWCC No. H205447 \n2 \n \n        On June 10, 2024, the respondents filed with the Commission a motion to dismiss this claim \nwithout prejudice (MTD) pursuant to the aforementioned statute and Commission rule. Thereafter, \nby letter filed with the Commission on June 26, 2024, the claimant objected to the respondents’ \nMTD, and she requested a “hearing on the merits”; however, she did not state what specific issues, \nif any, she believed were necessary and/or ripe for litigation. (Respondents’ Exhibit 10-16).  \n          After receiving the claimant’s objection/hearing request letter, the respondents filed a letter \nwith the Commission on July 12, 2024, advising the ALJ that: they had fully accepted this claim; \nhad paid all appropriate medical and indemnity benefits, including but not limited to permanent \npartial disability (PPD) benefits consistent with Dr. Wayne L. Bruffett’s ten percent (10 percent) \npermanent  anatomical  impairment  rating;  the  claimant  had  returned  to  full  duty  work  with  no \nrestrictions;  and  requesting  the  ALJ  not  set  this  matter  for  a  full  hearing  until  the  claimant  had \nadvised both the Commission and the respondents what specific issue(s) she believed were ripe \nfor determination and/or litigation. (RX1).   \n          Consequently, the ALJ’s office mailed the prehearing questionnaire documents to both the \nclaimant  and  the  respondents.  When  the  claimant  failed  and/or  refused  to  return  the  prehearing \nquestionnaire  documents  to  the  Commission,  thereby  advising  both  the  Commission  and  the \nrespondents  what  specific  issue(s)  she  intended  to  litigate,  the  ALJ  scheduled  a  hearing  on  the \nrespondents’ aforementioned MTD. Pursuant to the applicable law the claimant was provided due \nand legal notice of both the respondents’ MTD, as well as notice of the subject hearing to her last \nknown of  address on record with the Commission via the  United States Postal Service (USPS), \nCertified Mail, Return Receipt Requested. Thereafter, the claimant failed and/or refused to object \nand/or respond to the respondents’ MTD or to the Commission’s hearing notice in any way. \nMoreover, the claimant failed and/or refused to appear at the subject hearing. (RX1 at 10-23).  \n\nSarah E. Long, AWCC No. H205447 \n3 \n \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to prosecute her claim at this time. \n        Therefore, after a thorough consideration of the applicable law as applied to the facts of this \nclaim, the issues, and other relevant matters of record, as well as the representations of credible \ncounsel I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of the respondents’ motion to dismiss without \nprejudice filed with  the  Commission  on June  10,  2024, and,  thereafter,  the  prehearing \nquestionnaire  and related documents, as well  as notice of the subject hearing date, time, \nand  place, the  claimant failed  and/or  refused to  respond  to  the prehearing  questionnaire \ndocuments  in  any  way,  and she  failed  and/or  refused  to  appear at  the subject hearing. \nTherefore, she is deemed to have waived her right to a hearing on the respondents’ motion \nherein.  \n \n3. The preponderance  of  the  evidence  compels the  decision that the respondents’ subject \nmotion  to  dismiss  without  prejudice  filed June  10,  2024,  should  be  and  hereby  is \nGRANTED; and this claim hereby is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a) and  (b),  and \nCommission Rule 099.13. \n \n\nSarah E. Long, AWCC No. H205447 \n4 \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nSarah E. Long, AWCC No. H205447 \n5 \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":6758,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205447 SARAH E. LONG, EMPLOYEE CLAIMANT SOUTHEAST ARKANSAS EDUCATION SERVICE COOPERATIVE, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASS’N WORKERS’ COMPENSATION TRUST/ ARK. SCHOOL BOARDS ASS’N CARRIER/TPA RESPONDENT","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:49:26.575Z"},{"id":"alj-H304058-2024-09-25","awccNumber":"H304058","decisionDate":"2024-09-25","decisionYear":2024,"opinionType":"alj","claimantName":"Jonathan Mohler","employerName":"Robert A. Young Iii (cross Creek Ranch LLC)","title":"MOHLER VS. ROBERT A. YOUNG III (CROSS CREEK RANCH LLC) AWCC# H304058 September 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MOHLER_JONATHAN_H304058_20240925.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOHLER_JONATHAN_H304058_20240925.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H304058 \n \nJONATHAN MOHLER, Employee                                                                  CLAIMANT \n \nROBERT A. YOUNG III (CROSS CREEK RANCH LLC),                        RESPONDENT \nEmployer                                                                                                \n \nMIDWEST INSURANCE COMPANY, Carrier                                          RESPONDENT                                                         \n \n \n \n OPINION FILED SEPTEMBER 25, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR.,  Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL C. STILES, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 5, 2024, the above captioned claim came on for hearing at Fort Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on February  14,  2024, and  an \namended pre-hearing order was filed on June 19, 2024.  A copy of the pre-hearing order \nhas been marked as Commission’s Exhibit #1 and made a part of the record without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The employee/employer/carrier  relationship  existed among  the  parties at all \nrelevant times. \n\nMohler – H304058 \n2 \n \n 3.   Respondents have controverted this claim in its entirety. \n At the time of the hearing the parties agreed to stipulate that claimant is entitled to \npayment of compensation benefits at the maximum rate in effect for 2022 of $790.00 for \ntotal disability benefits and $593.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injury to claimant in the form of a tick bite on October 29,  \n2022.   Alternatively, compensability of injury due to the cumulative effect of tick bites that \nhe received during the course of his employment from January 1, 2022 until his condition \nbecame disabling in January of 2023. \n 2.    Related medical treatment. \n 3.    Temporary total disability benefits from January 15, 2023 through a date yet \nto be determined. \n 4.   Attorney’s fee. \n 5.   Notice. \nThe claimant contends he sustained a compensable injury on October 29, 2022 as \nthe result of a tick bite.  Although the Commission’s file shows a January 14, 2023 date \nof injury, said date was actually the date on which the claimant became disabled and his \nactual injury date should be October 29, 2022. In the alternative, claimant contends that \nif  his  condition  is  not  due  to  the  specific  tick  bite  of  October  29,  2022,  it  is  due  to  the \ncumulative effect of tick bites that he received during the course of his employment from \nJanuary  1,  2022  until  his  condition  became  disabling  in  January  of  2023.    Further, \nclaimant contends that his job duties exposed him to ticks at a much greater frequency \nthan members of the general public are exposed to ticks; therefore, even if his condition \n\nMohler – H304058 \n3 \n \nis determined to be an occupational disease it is still compensable in the same way that \nhistoplasmosis is still compensable for people who develop it as a result of working in the \npoultry industry.   Claimant contends he is entitled to temporary total disability benefits \nfrom  January  15,  2023  until  a  date  yet  to  be  determined  and  reasonably  necessary \nmedical  treatment.    In  addition,  claimant  contends  that  the  respondent  carrier  is  not \nentitled to any credit for payments that the respondent employer has made; rather, the \nclaimant should be ordered to reimburse the respondent employer to the extent that the \nclaimant is awarded temporary total disability benefits, minus attorney’s fees, during any \nperiod of time for which the respondent employer paid full wages while the claimant was \ntemporarily totally disabled.  Claimant contends his attorney is entitled to an appropriate \nattorney’s fee.  \nThe respondents contend the claimant did not sustain a compensable injury in the \nform  of  an  occupational  disease  while  employed  by  the  respondent  employer.    The \nrespondents  have  denied  and  controverted  this  claim  in  its  entirety.    Accordingly,  the \nrespondents have not and are not paying any benefits to or on behalf of the claimant for \nhis supposed occupational disease injury.  The claimant’s physical problems and need \nfor  medical  treatment,  if  any,  are  not  related  to  his  employment  with  the  respondent \nemployer.  Rather, the claimant’s physical problems and need for medical treatment, if \nany, stem from an unrelated and/or pre-existing condition.  Also, the respondents assert \nA.C.A. §11-9-601, as there is no causal connection between the claimant’s occupation \nfor  the  respondent  employer  and  the  alleged  occupational  disease.    Additionally,  no \ncompensation is owed “for any ordinary disease of life to which the general public is \nexposed.”  See A.C.A. §11-9-601(e)(3).  The respondents had no notice of the claimant’s \n\nMohler – H304058 \n4 \n \nalleged injury until January 16, 2023.  Accordingly, the respondents are not liable for any \nbenefits whatsoever prior to January 16, 2023.  Also, if it is determined the claimant is \nentitled  to  any  indemnity  benefits  with  regard  to  this  claim,  then  the  respondents  are \nentitled to a credit for the respondent carrier’s wage continuation payments to the claimant \nsubsequent to January 2023. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non February 14, 2024 and contained in an amended pre-hearing order filed June 19, 2024 \nare hereby accepted as fact. \n 2.   Claimant’s claim for a compensation injury is an accidental injury, not an \noccupational disease. \n 3.     Claimant has met his burden of proving by a preponderance of the evidence \nthat  he  suffered  a  compensable  injury  in  the  form  of  a  tick  bite  resulting  in alpha-gal \nallergy. \n 4.        Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injury. \n 5.    Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to temporary total disability benefits beginning January 14, 2023 and \n\nMohler – H304058 \n \n5 \n \ncontinuing through a date yet to be determined. \n 6.    Pursuant to A.C.A. §11-9-807(b), respondent is entitled to a credit for wages \nclaimant was paid beginning January 14, 2023 and continuing through a date yet to be \ndetermined. \n 7.    Respondent has controverted claimant’s entitlement to indemnity benefits and \nis liable for payment of an attorney fee on those benefits. \n 8.    Claimant’s failure to provide notice prior to January 16, 2023 does not bar his \nentitlement to benefits.  A.C.A. §11-9-701(b)(1)(B). \n \n FACTUAL BACKGROUND \n Claimant is a 50-year-old man who began working for respondent at Cross Creek \nRanch in July 2020.  Cross Creek Ranch is owned by Robert Young III, former Chairman \nof the Board of ArcBest Corporation.  Young testified at his deposition that he is in the \ncattle  business;  buying steers  that  weigh 550-600  pounds,  grazing them  to  put  on \nadditional weight, and sending them to a feed lot.  His business operates under the name \nCross  Creek  Ranch  and  it  consists  of  over  1000  acres with 1400  head  of  cattle.    The \nranch is a mixture of pastures with grass and trees.   \n Young testified that he hired claimant as a ranch hand to tend cattle.  Claimant’s \nduties included giving vaccinations, debugging, and deflying.  He was also responsible \nfor  spraying  insecticides,  repairing fences,  building  fences, bailing hay,  brush  hogging, \nand putting out fertilizer.  Young testified that claimant was responsible for anything that \nneeded to be done on the ranch.   \n In order for claimant to accomplish his job tasks, he was provided with a home for \n\nMohler – H304058 \n \n6 \n \nhe and his family to live in on the ranch.  Accordingly to claimant’s wife, Courtney Mohler, \nthey moved into this home on July 26, 2020.   \n Claimant testified that while taking care of the cattle and livestock was his main \npriority, he had many other duties such as repairing fences.  Claimant testified that fences \nfrequently get damaged and it is important that repairs be made as soon as possible to \nprevent  the  cattle  from  getting  out  of  the  pasture.    Testimony  from  claimant, Courtney \nMohler, and Robert Young III is that ticks are prevalent on Cross Creek Ranch.  Courtney \ntestified that ticks are abundant and that she had received tick bites while living on the \nranch.  Claimant testified that ticks are “thick” on the ranch.  Likewise, Young testified that \nthere are ticks present on the ranch and that when his children were younger and they \nwould go to the ranch he and his wife would have to go over their children with a “fine-\ntooth comb” to make sure they had not been bitten by ticks. \n Claimant testified that he typically preformed tick checks at night before bedtime \nor showering.  On October 29, 2022, claimant was performing a tick check and discovered \na tick on the back side of his knee.  Admittedly, claimant did not recall the specific date \non his own.  However, he did remember that on the day the tick was found he had repaired \na fence and taken a picture of a nearby tree that had been rubbed on by a deer.  The \nphoto shows that it was taken on October 29, 2022.  Claimant also testified that he has \nbeen bitten multiple times by ticks while working on Cross Creek Ranch. \n Claimant  testified  that  before  October  2022  he  had  never  thrown  up  without \nwarning.  However, in early November 2022 he vomitted without warning while taking his \nkids  deer  hunting  on  the  ranch.    Courtney  Mohler  testified  that  she  began  noticing \nclaimant having new health issues in December 2022.  She testified that on the night of \n\nMohler – H304058 \n \n7 \n \ntheir daughter’s birthday she noticed that claimant’s face and eyes were swollen and that \nhis color was not normal.  She stated that claimant had difficulty eating that night and was \nnot able to participate in the birthday party. \n On the night of January 14, 2023, Courtney took claimant to the emergency room \ndue to uncontrollable vomiting; stomach pain; and irritation in the throat and esophagus.  \nClaimant was struggling to stay upright or get out of bed.  She testified that claimant had \nnever had these issues before October 2022. \n The  emergency  room  report  from  Washington  Regional  Medical  Center  dated \nJanuary 14, 2023 indicates that claimant’s complaints included dizziness, low blood \npressure, nausea, vomiting, and abdominal pain.  An EKG did not reveal a cause for the \nsymptoms; a CT of the abdomen showed no acute intra-abdominal pathology; and a chest \nx-ray showed no acute pathology.  Claimant was diagnosed with dizziness; nausea and \nvomiting;  and  abdominal  pain.    He  was  given  medication  for  nausea  and  instructed  to \nreceive follow-up care from his primary care physician. \n On  January  26,  2023,  claimant  was  seen  by  his  primary  care  physician,  Dr. \nJantzen Slater, who ordered various lab tests.   One of those lab tests was for alpha-gal.  \nIn a report dated February 7, 2023, Dr. Slater stated that the lab results were positive for \nalpha-gal, shrimp, and wheat.  Since that time claimant has continued to be treated by \nDr.  Slater  for  various  conditions;  including alpha-gal  syndrome. Alpha-gal  syndrome  is \ntriggered by tick bites. His treatment has primarily included the use of medications and \navoidance of various foods.  In addition to Dr. Slater, claimant has also been evaluated \nby Dr. Tina Merritt at the Allergy Asthma Clinic of Northwest Arkansas and by Dr. Scott \nLucchese,  neurologist.    Both  Drs.  Merritt  and  Lucchese  have  diagnosed  claimant  with \n\nMohler – H304058 \n \n8 \n \nalpha-gal allergy. \n Claimant has not worked for respondent since his initial emergency room visit on \nJanuary  14,  2023.    Respondent  has  continued  to  pay  claimant  his  regular  wages \n(including an increase) throughout this period of time.  Respondent has also continued to \nallow claimant and his family to live in the home on Cross Creek Ranch. \n Claimant has filed this claim contending that he suffered a compensable injury as \na result of the tick bite on October 29, 2022 which resulted in a diagnosis of alpha-gal \nsyndrome.  He requests payment of related medical treatment, temporary total disability \nbenefits, and a controverted attorney fee. \n \nADJUDICATION \n The first issue for consideration is whether claimant’s claim of an injury in the form \nof  a  tick  bite  and  the  subsequent  diagnosis  of  alpha-gal  syndrome  is  an  occupational \ndisease  or  an  accidental  injury.    Claimant  contends  that  it  is  an  occupational  disease.  \nOccupational disease injuries are governed by the provisions of A.C.A. §11-9-601 et seq.  \nA.C.A.  §11-9-601  does  not  define  the  distinction  between  “accidental  injury”  and \n“disease”, but a widely accepted distinction is that occupational diseases are generally \ngradual rather than sudden in onset.  Johnson v. Democrat Printing and Lithograph, 57 \nArk. App. 274, 944 S.W. 2d 138 (1997); Hancock v. Modern Indus. Laundry, 46 Ark. App. \n186, 878 S.W. 2d 416 (1994).   \n After  reviewing  the evidence  presented,  I do not  find that  claimant’s  injury  is \ngoverned by the occupational disease provisions of A.C.A. §11-9-601 et seq.  Alpha-gal \nsyndrome is: \n\nMohler – H304058 \n \n9 \n \n[A]n allergic reaction to a type of sugar community called \nalpha-gal.   It is found in the meat and organ meats of \nmammals, such as cows, pigs, and sheep.  It may also \n \nbe found in products that come from animals, such as \n  gelatin, medicines, medicine capsules, some milk \n  products, vaccines, and cosmetics.  (Washington \n  Regional Medical Center patient education materials, \n  Page 95 of Claimant’s Exhibit 1.) \n \n  \nThis same document indicates that alpha-gal syndrome causes an allergic reaction \nthat can be immediate or delayed for several hours, and range from mild to severe.  This \nmaterial states the cause of alpha-gal syndrome as follows: \n  This allergy is first triggered by a tick bite from a lone \n  star or blackleg tick.  These ticks bite animals, such \n  as cows, pigs, or sheep, and pick up the alpha-gal \n  sugar from their blood.  If this same tick bites you, it \n  may cause your body’s defense system (immune system) \n  to produce antibodies to alpha-gal and cause the allergic \n  reaction. \n \n \n Dr. Slater confirmed that claimant developed an alpha-gal allergy as a result of a \ntick bite in a letter dated August 17, 2023.  As respondent correctly points out in its brief, \nalpha-gal syndrome is not a disease but rather an allergy.  More importantly, claimant’s \ninitial contention is that he contracted alpha-gal syndrome through a tick bite that occurred \non October 29, 2022 as a result of a specific incident.  This would be a sudden onset and \nnot  a  gradual  onset.   [I  do  note  that  claimant  alternatively contends  that  he  suffered  a \ncompensable injury due to cumulative tick bites.  For reasons to be discussed, I find that \nhe  has proven  a  compensable  injury  as a  result  of  a  specific  incident.]     As previously \nnoted, occupational diseases are generally gradual in onset rather than sudden in onset.  \nJohnson, supra.    \n\nMohler – H304058 \n \n10 \n \n Based on the foregoing, I find that claimant’s claim is for an accidental injury rather \nthan an occupational disease.   \n As noted above, it is claimant’s initial contention that he contracted alpha-gal \nsyndrome as a result of a tick bite that occurred on October 29, 2022.  This is a claim for \na  specific  injury,  identifiable  by  time  and  place  of  occurrence. In  order  to  prove  a \ncompensable injury as the result of a specific incident that is identifiable by time and place \nof occurrence, a claimant must establish by a preponderance of the evidence (1) an injury \narising out of and in the course of employment; (2) the injury caused internal or external \nharm to the body which required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings establishing an injury; and (4) the injury \nwas caused by a specific incident identifiable by time and place of occurrence.  Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has met his burden of proof.  First, I find that \nclaimant has proven by a preponderance of the evidence that his injury arose out of and \nin the course of his employment and that it was caused by a specific incident identifiable \nby time and place of occurrence.   \n As previously discussed, claimant testified that he typically performed tick checks \nat night before bedtime or showering.  Through a photo he had taken while repairing a \nfence  on  October  29,  2022,  claimant  was  able  to  establish  this  date  as  the  day  he \nremoved a tick from behind his knee area.  It was in early November, shortly after this tick \nbite, that claimant began to have issues of vomiting without warning. \n In  response  to  claimant’s  contention  and  testimony,  respondent  states  that \n\nMohler – H304058 \n \n11 \n \nclaimant cannot prove that he was bitten by a tick while in the course of his employment.  \nRespondent contends that claimant does not know what he was doing or where he was \nbitten by a tick; therefore, he cannot prove that he was performing “employment services”.   \n In its brief, respondent frequently refers to claimant as an “on call employee” who \nwas performing job duties during periods of the day, but was also engaged in personal \nactivities such as taking his children hunting on the ranch.  Respondent also notes that \nclaimant generally liked to end his workday at 3:00 p.m. and that he and another ranch \nhand would attempt to alternate weekends off.  Respondent contends that while claimant \nwas frequently engaged in employment services while on the ranch, he was also engaged \nin personal activities and at those times was not performing employment services.  Since \nhe  does  not  know  specifically  what  he  was  doing  when  he  was  bitten  by  the  tick, \nrespondent contends that claimant cannot meet his burden of proof. \n I find that claimant was a “resident employee” and that his claim for compensation \nbenefits  is  governed  by  the  Arkansas  Supreme  Court  decision  in Jivan  v.  Econ.  Inn  & \nSuites, 370 Ark. 414, 260 S.W. 3d 281 (2007).  In that case, Nimisha Jivan was employed \nas an assistant manager at the Economy Inn in Hope.  She and her husband, the manager \nof  the  Economy  Inn,  lived  in  a  room  provided  by  the  hotel  and  carried  out  their  job \nresponsibilities on the premises.  On February 17, 2003, Nimisha was off duty.  She was \nin the process of changing her clothes in the bathroom of her hotel room to go to the gym \nwhen a fire broke out.  Unfortunately, Nimisha died as a result of smoke inhalation. \n Nimisha’s husband and two minor children filed a workers’ compensation claim.  \nNotably, the parties stipulated that  Nimisha and her husband were provided a room at \nthe hotel in order to live on the premises and carry out their responsibilities.  The parties \n\nMohler – H304058 \n \n12 \n \nalso stipulated that on February 17, 2003, Nimisha was off duty and was in the bathroom \nof  her  hotel  room  changing  clothes  to  go  to  the  gym  to  exercise.    Finally,  the  parties \nstipulated that Nimisha and her husband were considered on-call to address any hotel \nrelated issues.    \n The question before the Court was whether Nimisha was performing “employment \nservices” at the time of her death.  The Court first noted that an employee is performing \nemployment  services  if  they  are  doing  something  that  is  generally  required  by  their \nemployer.  Wallace v. West Fraser, Inc., 365 Ark. 68, 225 S.W. 3d 361 (2006).  The Court \nthen discussed its prior decision in Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W. \n2d 804 (1993).  Angus was injured when a mobile home where he resided on the premises \nof his employer was destroyed by a tornado.  The Court found that because Angus was \ncontinually on duty he qualified as a residential employee and “the entire period of his \npresence on the premises is deemed included in the course of employment.”  The Court \nalso  noted  that  under  the  doctrine  of  increased  risk,  injuries  are  compensable  if  the \nemployment exposed the employee to a greater degree of risk than other members of the \ngeneral public in the same vicinity.  Under this theory: \n  [T]he claimant must prove only that the conditions \n  of her employment, or the place where her employ- \n  ment required her to be, intensified the risk of injury \n  “due to extraordinary natural causes.” \n \n \n Deffenbaugh was decided before Act 796  of 1993 and the Jivan court noted that \nit did not preclude the application of the residential-employee rule.  The Court also noted \nthat any interpretation of a statute becomes part of the statute.  The Court then found the \nfollowing with respect to Nimisha: \n\nMohler – H304058 \n \n13 \n \n  Based upon these stipulated facts, Nimisha, like Angus  \n  in Deffenbaugh, resided on the employer’s premises \n  at the time of her fatal injury.  Employing an increased- \n  risk analysis, Nimisha was expected to reside on the \n  premises and, as a residential employee of the hotel, \n  the condition of living at the hotel “intensified the risk \n  of injury due to extraordinary natural causes.”  [citation \n  omitted.]  That is to say, her presence on the premises \n  during the fire exposed her to a greater degree of risk \n  than someone who did not live on the premises.  In \n  fact, the parties stipulated that Nimisha was on call \n  twenty-four hours per day, and while living on the \n  premises, she was to carry out her responsibilities \n  as an assistant manager of the hotel by being available \n  for work duties at all times.  Thus, Nimisha indirectly \n  advanced her employer’s interests, even while \n  remaining on the premises during the fire. \n \n \n I find that the decision in Jivan applies to this claimant.  Claimant was provided a \nhome on the ranch for he and his family to live in and was expected to be available twenty-\nfour hours per day.  Young specifically testified: \n  A I wanted him on the ranch.  Cattle lived there \n  24 hours a day and he is responsible for the cattle.  So \n  if a fence broke and they were out on a county highway, \n  he would be there to get them up and get them in. \n \n  Q So would it be correct to say that he was basically \n  a 24-hour-a-day employee? \n \n  A He was available 24 hours. \n \n      *** \n \n  Q Mr. Stiles asked about Mr. Mohler hunting on the \n  ranch property sometimes. Even if he is doing personal \n  hunting, if he is on the property, is he considered to be \n  on call as an employee?  I mean if something happened \n  on the ranch while he was hunting, would he be expected \n  to take care of it?  For example, if one of these bobcats \n  that we have been talking about attacked some of your \n  livestock,  would he be expected to intervene? \n\nMohler – H304058 \n \n14 \n \n \n  A Yes. \n \n  Q So if he is physically on the property, he is on \ncall as far as you are concerned? \n \nA He is supposed to act like an owner. \n \nQ That is within the scope of his and within the scope \nof your expectation as an employer for him to perform \nemployment services if he is on the property; is that right? \n \nA That is correct.   (Emphasis added.) \n \n \n Claimant’s living on the ranch exposed him to a greater risk than someone who \ndid not live on the premises.  In other words, claimant was not like most employees who \ngo to work and then go to their personal home; instead, he was required by his employer \nto live on the ranch and be available twenty-four hours a day.  This increased his risk to \nexposure of ticks which according to the testimony of the witnesses were prevalent on \nthe ranch.  Accordingly, even if claimant was bitten while performing an activity other than \nhis  normal  work  activity, his  risk  of  injury  was  greater  because  he  lived  on  the  ranch.  \nThus, claimant indirectly advanced his employer’s interest when he was bitten by a tick \non the ranch. \n I also find claimant’s testimony credible regarding his finding of the tick on October \n29, 2022, after spending a portion of the day repairing fencing.  Claimant testified that he \nwas able to relate the tick bite to that day because of a photo on his phone that he had \ntaken of a tree that day while repairing the fence. \n In its brief,  respondent  contends  that  claimant  did  not  save  the  tick  and  did  not \nhave  it  biopsied  for  alpha-gal.  It is not reasonable that a person in claimant’s position \n\nMohler – H304058 \n \n15 \n \nwould  save  a  tick for a  biopsy  in the  event  that  they  later become  sick  from  alpha-gal.  \nThere is no such requirement under the law.  Claimant is only required to meet his burden \nof proof by a preponderance of the evidence.  Based on a totality of the evidence, I find \nthat  claimant  has proven that  the  tick  bite of  October 29,  2022  arose  out of  and  in  the \ncourse of  his employment and  that  it  was  caused by a  specific  incident,  identifiable by \ntime and place of occurrence. \n I also find that claimant has proven that the tick bite caused internal harm to his \nbody  that  required  medical  services  or  resulted  in  disability  and  that  he  has  offered \nmedical evidence supported by objective findings establishing the injury.  When claimant \nbegan having uncontrolled vomiting he was taken to the emergency room on January 14, \n2023, and referred to his primary care physician, Dr. Slater.  Dr. Slater ordered various \nlab tests which included an alpha-gal panel which was positive for alpha-gal syndrome.  \nAs previously noted, alpha-gal is transmitted by tick bites. \n In a letter dated August 17, 2023, Dr. Slater stated that claimant developed alpha-\ngal as a result of being bitten by a tick at work.   \n  Unfortunately, during his work, he was bitten by a tick. \n  Subsequent medical evaluation and tests have confirmed \n  that Mr. Mohler has developed an alpha-gal allergy as a \n  direct result of the tick bite. \n \n \n Since his diagnosis claimant has continued to be treated for his symptoms by Dr. \nSlater  and  Dr.  Merritt.    The  positive  lab  test  for  alpha-gal  is  an  objective  finding \nestablishing  an  injury.    Therefore,  I  find  that  the  remaining  elements  of  compensability \nhave been proven. \n In  reaching  this  decision  I  note  that  respondent  has  offered  a  report  from  Dr. \n\nMohler – H304058 \n \n16 \n \nJoshua  Kennedy,  a  physician  at  UAMS  specializing  in  allergy  and  immunology.    Dr. \nKennedy acknowledges that claimant has tested positive for alpha-gal, but also opines \nthat other diagnoses for claimant’s complaints should be considered.  Based on his \nopinion,  respondent  contends  that  alpha-gal  syndrome  is  not  the  “major  cause”  of \nclaimant’s disability or need for medical treatment.   However, an employee is not required \nto prove that his compensable injury is the major cause for the need for treatment unless \nthe employee is seeking permanent benefits; when the employee has suffered a specific \ninjury and is seeking only medical benefits and temporary total disability, the major cause \nanalysis is not applicable and the employee need only show that the compensable injury \nwas a factor in the need for additional medical treatment.  Jackson v. O’Reilly Auto, Inc., \n2013 Ark. App. 755. \n In summary, I find that claimant has met his burden of proving by a preponderance \nof the evidence that he suffered a compensable injury in the form of a tick bite on October \n29, 2022, which resulted in alpha-gal syndrome. \n Having  proven  that  he  suffered  a  compensable  injury,  respondent  is  liable  for \npayment of all reasonable and necessary medical treatment provided in connection with \nclaimant’s alpha-gal syndrome.    \n The  next  issue  for  consideration involves claimant’s request for temporary total \ndisability benefits.  Claimant has not worked for respondent or any other employer since \ngoing to the emergency room on January 14, 2023.  Claimant’s injury is an unscheduled \ninjury; therefore, in order to be entitled to temporary total disability benefits, claimant has \nthe  burden  of  proving  by  a  preponderance  of  the  evidence  that  he  remains  within  his \nhealing  period  and  that  he  suffers  a  total  incapacity  to  earn  wages.   Arkansas  State \n\nMohler – H304058 \n \n17 \n \nHighway  &  Transportation  Department  v.  Breshears,  272  Ark.  244,  613  S.W.  2d  392 \n(1981).   \n I  find  that  claimant  has  met  his  burden  of  proof.    The  medical  evidence  clearly \nindicates that claimant remains within his healing period for his alpha-gal allergy as his \ntreating physicians attempt to treat claimant for his condition and resolve his symptoms.  \nBased upon the medical evidence I find that claimant remains within his healing period.   \n I also find that claimant has proven that he suffers a total incapacity to earn wages \nas a result of his compensable injury.  First, I note that claimant testified that he is currently \nunable to perform his work for respondent and has not been able to do so since January \n14, 2023.  I find claimant’s testimony to be credible.  Claimant presented as a credible \nwitness at the hearing and I find his testimony regarding his inability to work believable.  \nWith regard to claimant’s integrity, I note the testimony of Penny Ring, the office manager \nfor respondent.  On cross examination she was asked about claimant’s trustworthiness.   \n  Q Do you have an opinion about his trustworthiness? \n \n  A I don’t have any reason not to trust him.  He has been \n  an exemplary employee and full of integrity. \n \n   \n \n I also note that Dr. Slater has opined that claimant is incapable of working.  In his \nletter of August 17, 2023 he stated: \n  This [alpha-gal allergy as a result of a tick bite at work] is \n  thought to be at the root of his current symptoms which \n  have rendered him essentially incapacitated to his previous \n  and presumably any occupation. \n \n     *** \n  This condition poses a significant challenge to Mr. \n  Mohler’s quality of life and his ability to perform his \n\nMohler – H304058 \n \n18 \n \n  job effectively.  He now requires constant vigilance \n  and adjustments to his lifestyle to avoid potential \n  triggers. \n \n \n More recently, in a letter dated June 17, 2024, Dr. Slater stated: \n  I am writing on behalf of Jonathan Mohler who as you \n  know is undergoing medical treatment for a work-related \n  injury.  Although his treatment has improved his symptoms, \n  he remains unable to work due to his condition.   \n  (Emphasis added.) \n \n \n Based upon claimant’s testimony and the opinion of Dr. Slater, I find that claimant \nhas  proven  by  a  preponderance  of  the  evidence  that  he  has  been  temporarily  totally \ndisabled as a result of his compensable injury since January 14, 2023.   \n Although I have found that claimant is temporarily totally disabled as a result of his \ncompensable  injury, respondent  is  not  liable  for  payment  of  any  benefits at  this  time.  \nA.C.A. §11-9-807(b) states: \n If the injured employee receives full wages during \n disability, he or she shall not be entitled to compen- \nsation during the period. \n \n The  parties  agree  that  since  the  time  of  claimant’s  disability  respondent  has \ncontinued to pay him his full wages.  In addition, claimant has been permitted to continue \nliving in his home on the ranch and respondent has continued to pay for claimant’s \nvehicle, health insurance, and utilities.   \n Claimant contends that payment of his full wages does not entitle respondent to a \ncredit because the payment was not intended by the parties as an advance payment of \ncompensation.   In support of that contention, claimant cites Varnell v. Union Carbine, 29 \n\nMohler – H304058 \n \n19 \n \nArk. App. 185, 779 S.W. 2d 542 (1989).  However, most recently, the Arkansas Court of \nAppeals addressed A.C.A. §11-9-807 and this issue in Advanced Portable X-Ray, LLC v. \nParker, 2014 Ark. App. 548, 444 S.W. 3d 398.  In that decision the Court stated: \n  Each of the cases cited by the Commission in support \n  of its opinion are distinguishable from the present \n  appeal.  In both Lion Oil and Looney, supra, our  \n  supreme court was called to interpret what is now \n  codified at subsection(b), and as held in Looney, it \n  interpreted the statute to mean that excess wages \n  over the TTD rate are not to be credited to the employer. \n  Those cases do not stand for the proposition that when \n  an employer pays an employee “full wages” during a \n  period of disability, the employee is entitled to both  \n  full wages and TTD.  To construe the statute in that \n  manner would effectively void subsection(b). \n \n  To clarify, when an employer pays an employee “full \n  wages” during a period of disability and the employee \n  is subsequently awarded TTD benefits for that period, \n  the employer is entitled to a credit under subsection (b) \n  for the amounts paid to the employee that are commen- \n  surate with the employee’s TTD rate; the employer is \n  not, however, entitled to a credit for amounts paid in \n  excess of the TTD rate. \n \n \n Based  upon  the  decision  in Parker,  I  find  that  respondent  is  entitled  to  a  credit \npursuant to A.C.A. §11-9-807(b) for the amounts paid to claimant that are commensurate \nwith his temporary total disability rate; respondent is not entitled to a credit for amounts \npaid in excess of the temporary total disability rate. \n Finally,  I  find  that  respondent  has  controverted  claimant’s  entitlement  to \ncompensation benefits.  Claimant has been temporarily totally disabled since January 14, \n2023, and respondent is entitled to a credit for reasons discussed herein.  Therefore, at \nthis  point  no  indemnity  benefits  are  being  paid  to  the  claimant.    Since  no  benefits  are \n\nMohler – H304058 \n \n20 \n \nbeing paid to claimant, there are no indemnity benefits from which to withhold his 12 ½% \nportion  of  an  attorney  fee.    In  the  event  indemnity  benefits  are  paid  to  claimant  in  the \nfuture, claimant’s portion of the attorney fee should be withheld from those amounts and \nforwarded to Mr. Walker.  Respondent is liable for paying its portion of the attorney fee to \nMr.  Walker.    Although  it  has  been  given  a  credit  for  full  wages  paid  to  claimant,  those \nbenefits were controverted and have been awarded. \n The final issue for consideration involves notice.  Respondent contends that it did \nnot have notice of the claimant’s injury until January 16, 2023; therefore, it is not liable for \npayment of  any  benefits  prior  to  January  16,  2023.    As  previously discussed,  claimant \nsought medical treatment from the emergency room on January 14, 2023, at which time \nhe  was  diagnosed  with  dizziness;  nausea  and  vomiting;  and  abdominal  pain.    He  was \ngiven  medication  and  instructed  to  receive  follow-up  treatment  from  his  primary  care \nphysician.  This is the only treatment claimant received before January 16, 2023. \n When the claimant saw  his primary care physician on January 26, 2023, Dr. Slater \nordered various lab tests which included an alpha-gal panel.  It was only after this test \nreturned positive that it became apparent that claimant’s symptoms were related to a tick \nbite.  Pursuant to A.C.A. §11-9-701(b)(1)(B) failure to give notice does not bar a claim: \n  If the employee had no knowledge that the condition \n  or disease arose out of and in the course of the \n  employment.” \n \n \n I  find that  claimant  had  no  knowledge  that his  condition  or disease  arose out  of \nand in the course of his employment until after the lab results were performed and it was \ndetermined that the cause of claimant’s alpha-gal allergy was the result of a tick bite.  This \n\nMohler – H304058 \n \n21 \n \noccurred after January 16, 2023.  Therefore, claimant’s failure to provide notice before \nJanuary 16, 2023 is excused pursuant to A.C.A. §11-9-701(b)(1)(B). \n \nORDER \n Claimant’s claim for a compensable injury is a claim for an accidental injury, not \nan  occupational  disease.    I  find  that  claimant  has  met  his  burden  of  proving  by  a \npreponderance of the evidence that he suffered a compensable injury in the form of a tick \nbite which resulted in alpha-gal syndrome on October 29, 2022.  Respondent is liable for \npayment of all reasonable and necessary medical treatment provided in connection with \nclaimant’s compensable injury.  Claimant is entitled to temporary total disability benefits \nbeginning  January  14,  2023  and  continuing  through  a  date  yet  to  be  determined.  \nBecause respondent has continued to pay claimant his full wages, respondent is entitled \nto a credit for those full wages pursuant to A.C.A. §11-9-807(b).  While claimant is not \nrequired to pay his portion of an attorney fee to Mr. Walker, respondent has controverted \nclaimant’s entitlement to indemnity benefits and as such is liable for payment of an \nappropriate fee. \n All sums herein accrued are payable in a lump sum and without discount. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $1,140.25. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":38671,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304058 JONATHAN MOHLER, Employee CLAIMANT ROBERT A. YOUNG III (CROSS CREEK RANCH LLC), RESPONDENT Employer MIDWEST INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED SEPTEMBER 25, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smi...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["back","knee"],"fetchedAt":"2026-05-19T22:49:28.717Z"},{"id":"alj-H005904-2024-09-24","awccNumber":"H005904","decisionDate":"2024-09-24","decisionYear":2024,"opinionType":"alj","claimantName":"Barbara Grant","employerName":"Baptist Health","title":"GRANT VS. BAPTIST HEALTH AWCC# H005904 September 24, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GRANT_BARBARA_H005904_20240924.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRANT_BARBARA_H005904_20240924.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H005904 \n \nBARBARA GRANT, EMPLOYEE        CLAIMANT \n \nBAPTIST HEALTH, SELF-INSURED EMPLOYER              RESPONDENT \n    \nCLAIMS ADMINISTRATOR SERVICES, TPA         RESPONDENT \n \n \nOPINION FILED 24 SEPTEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 26 June 2024 in Little Rock, Arkansas. \n \nThe Wren Law Firm, Mr. Daniel Wren, for the claimant. \n \nWorley, Wood & Parrish, PA, Mr. Jarrod Parrish, for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 26 June 2024 in Little Rock, Arkansas. The \nparties participated in a pre-hearing telephone conference on 21 May 2024. A Prehearing \nOrder, admitted to the record without objection as Commission’s Exhibit No 1, was entered \non 22 May 2024. \nThe parties agreed to the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  The employee/employer/TPA relationship existed at all relevant times. \n3.  The claimant sustained a compensable work injury on 8 August 2020 that was \naccepted as compensable and has received some benefits, accordingly, on the claim.  \nThe sole ISSUE TO BE LITIGATED was whether the claimant is entitled to \nadditional medical treatment. Specifically, she claims that she is entitled to additional MRI \nimaging. All other potential issues have been reserved. \n\nB. GRANT- H005904 \n2 \n \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire \nResponses, were incorporated into the Prehearing Order.  \nPer the claimant’s CONTENTIONS, she exercised her right to a change of physician \nto Dr. Kenneth Rosenzweig, whom she saw on 11 December 2023. Dr. Rosenzweig \nrequested an MRI of the pelvis with attention to the bilateral hips and the right sacroiliac \n(SI) joint. The respondents denied coverage for the same. \nPer the respondents’ CONTENTIONS, all appropriate benefits have been provided. \nThe claimant was released with no restrictions and a 0% impairment rating. The \nrespondents contend that additional treatment, specifically the MRI imaging, is not \nnecessary or reasonable. Alternatively, they contend that the requested treatment is not \nrelated to her accepted work injury. \nThe claimant was the sole WITNESS testifying at the hearing. The EVIDENCE \npresented consisted of her testimony along with Commission’s Exhibit No 1 (the 22 May \n2024 Prehearing Order), Claimant’s Exhibit No 1 (Dr. Rosenzweig’s New Patient H&P note \nand request for additional imaging), and Respondents’ Exhibit Nos 1 (54 pages of various \nmedical records) and 2 (three pages of non-medical records). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the \nwitness, observing her demeanor, I make the following findings of fact and conclusions of \nlaw under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that she is entitled \nto additional treatment in the form of additional MRI studies of her pelvis. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \n\nB. GRANT- H005904 \n3 \n \nClaimant Barbara Grant \n The claimant testified that she is currently working for the respondent-employer \n(Baptist) as a utilization review nurse. At the time of her August 2020 workplace accident, \nhowever, she was nursing in direct patient care. She testified that she injured herself when \nshe slipped on the floor walking out of a patient room. The injury was reported, and \ntreatment was provided. The claimant eventually underwent right hip surgery with Dr. \nJames Tucker to repair a torn labrum. \n She was later found to be at maximum medical improvement and released without \nany restrictions by Dr. Tucker. The claimant testified that returning to floor nursing was \ndifficult, so Baptist accommodated her with a move to utilization review, which is a desk \njob. Discussing the ongoing difficulty she associates with her work injury, she stated, \n“continued back pain, mobility issues, pain issues.” [TR at 11.] She also testified that she \nexperiences tremors, which “have been ongoing since the beginning... they come and go. \nSome days are worse, some days are better.” [TR at 12.] \n On cross examination, the claimant stated that she has experienced shaking and \ntremors since her injury and throughout her treatment. She acknowledged that her \nutilization review position is a permanent job and that it pays more than her previous \nposition with the Baptist. The claimant also acknowledged previous diagnostic studies: \nQ:  All right. Now, I’m going to review with you all the diagnostic studies that \nyou’ve had in the claim. You had an MRI on your lumbar spine in August of \n2020, MRI of your right hip in October 2020, an EMG study in March of ’21, a \nright hip arthrogram in March of ’21, an MRI of your right hip again in July \nof ’21, a CT of your lumbar spine in October ’21, an MRI of your thoracic and \nlumbar spine in December of ’21, and another MRI of your low back in \nJanuary of ’22. Do you dispute that you’ve had all those diagnostic studies? \nA:  No, I do not.  \nQ:  So that would be three MRIs and a CT on your low back, two MRIs and an \narthrogram on your right hip and a MRI of your thoracic spine. Seven total \ndiagnostic studies, right? \nA:  Yes.  \nQ:  Okay. Three of them including your right hip, right? \n\nB. GRANT- H005904 \n4 \n \nA:  Yes, sir. \nQ:  And what are you asking for here today? \nA:  Another MRI of my pelvis and bilateral hips. \nQ:  Okay. And when I look at Dr. Rosenzweig’s report, he only references an \nMRI of the lumbar spine in March of ’23 not the two hip MRIs or the hip \narthrogram. Do you have any explanation for why he would not have \ndiscussed or documented those prior studies on the area he’s recommending a \nstudy for? \nA:  No, other than the most recent imaging that I have is what I provided him \nwith. \nQ:  Okay. You agree— \nJudge:  Is that to say he doesn’t have access to the other studies and \nimaging reports? \nA:  I am not sure if he has access and they—he didn’t ask me to bring \nthat. He asked me to bring the most recent, which is what I took. \nQ:  Okay. You’ll agree with me you did not take the disc or films from any of \nthe diagnostic studies dealing with your right hip, the two MRIs or the \narthrogram? \nA:  Yes.  \nQ:  Okay. And you agree with me it would be important for Dr. Rosenzweig to \nknow about all the other diagnostic studies if, in fact, he’s going to \nrecommend more diagnostic studies, right? \nA:  Yes. \n \n[TR at 16-18.] \n The claimant went on to testify that she also began having left hip pain after Dr. \nTucker’s release, but that she did not report that to Baptist. She acknowledged that Dr. \nTucker was her authorized provider before exercising her change of physician to Dr. \nRosenzweig, but that she also saw “Dr. Moore, Dr. Maggio, Dr. Brown, and docs at the Air \nForce Clinic” on her own in the meantime. [TR at 19.] The claimant testified that despite \nthe details of her care with those other providers not appearing in Dr. Rosenzweig’s notes, \nshe did discuss the care they provided with him. She acknowledged that she’d been released \nfrom care by Drs. Cayme, Tucker, and Vargas; that she’d already undergone seven \ndiagnostic studies; and that Dr. Rosenzweig’s request for an MRI was “primarily driven” by \nher “subjective” complaints. [TR at 21.] \n The respondents’ counsel asked if she understood the purpose of a Functional \nCapacity Evaluation (FCE) and if she “knew it was important to be honest and to put forth \n\nB. GRANT- H005904 \n5 \n \nconsistent effort.” [TR at 22.] The claimant answered in the affirmative. He asked if she felt \nunwell on the day of the evaluation or if she had “any issue with the evaluator and how \nthey dealt with you.” Id. She denied feeling unwell or having any issues. The 17 September \n2021 FCE returned a reliability score of 38 out of 55. The conversation around the \nreliability of her effort continued: \nQ:  So the one opportunity you have to show objectively what you can and \ncan’t do and at a time when you knew you needed to give honest consistent \neffort, you produced a 38 out of 55 reliability score, right? \nA:  Yes, sir. \nQ:  And you, at your deposition, told me you had no explanation for that. \nA:  Well, I have an explanation, but I’m not going to state that here. I tried \nmy hardest. \nQ:  You’ll agree with me that’s the only assessment we have of the reliability \nof your complaints? \nA:  Yes. \nQ:  As far as objective testing, right? \nA:  Yes. \nQ:  Okay. \nJudge:  Well, the reliability score, if that’s going to go toward your \ncredibility in the general sense as to, you know, your condition and \nwhat you’re experiencing, if you have an explanation then, do you not? \nYou just told me you had something you don’t want to tell us. I would \nbe interested to hear. \n A:  I went— \n Judge:  I mean, you don’t have to. It’s your choice. \nA:  I went in there and I did everything that I could to the best of my \nability and the guy was very nice. We had casual conversations, while \nI took breaks in between and I, honestly, feel like, because it’s a \nworkers’ comp claim and they don’t want to deal with it, they give you \na score that they want to give you. Because [Mr. Wren] had already \ntold me in advance to go in there and do it, to make sure I tried with \nthe best of my ability, which I did. \n Judge:  Okay. \nQ:  So ma’am, are you insinuating or indicating that the evaluator, who you \ntold me you didn’t have any problems with, manufactured a 38 out of 55? \nA:  Yes. \n \n[TR at 23-24.] \n Claimant’s counsel objected to further questioning around the FCE and the \nclaimant’s opinion on the validity of the testing as not being relevant. The objection was \noverruled, and the claimant went on to state that she did not complain about the FCE at \n\nB. GRANT- H005904 \n6 \n \nher deposition because she “was thinking more on personal terms,” and she did not dislike \nthe evaluator. [TR at 28.] The claimant was unsure why she would be targeted for an \nuntruthful evaluation report, saying, “I don’t know why I would be singled out. I do know \nthat the injury that I have is complicated and a lot of people don’t understand it and it does \nsometimes appear that it’s not real, but it’s real.” [TR at 30.] \n After some more back-and-forth, the claimant was asked: \nQ:  So, ma’am, my question before the objection was: If this evaluator, truly, \nwas trying to sabotage you and set you up and close your claim out and get \nyou out of here, why would he not give you a stinky score like 22 out of 55, 25 \nout of 55? \nA:  Because— \n Mr. Wren:  Your Honor, objection. It calls for speculation. \nJudge:  Yeah, the objection is noted. It does. It calls for—but it’s her \nopinion. It’s a speculative opinion. If you can answer the question, \nthen do. If you don’t know, you don’t know. \nA:  If they’re gonna—they don’t want it to look bad, like they are faking it and \nputting stuff in there that’s false, they’re not going to make it super low. \n \n[TR at 33-34.] The claimant went on to say that she was not pursuing any formal claims \nalleging fraudulent practices against the FCE evaluator. “I wouldn’t want to ruin \nsomebody’s career over my feelings and my opinions, except of proof.” [TR at 36.] \nMedical Evidence \n On 27 March 2014, the claimant saw Dr. David Johnson who noted, “Barbara comes \nwith chronic pain... She has seen Dr. Brad Thomas and Dr. Ricca for her back, but \ncontinues to have issues and has to take pain management.” [Resp. Ex. No 1 at 1.] \n On 6 October 2014, Dr. Johnson also noted, “comes with right leg pain. She has had \nthis for almost a month. It is burning and stinging mostly from the hip down to the heel.” \nHe assessed Cervical Disc Degeneration, Pain in Limb, and Chronic Pain. An EMG and \nnerve conduction study was scheduled for her right leg. [Id. at 8.] \n\nB. GRANT- H005904 \n7 \n \n An MRI of the lumbar spine on 27 August 2020 revealed a “small disc protrusion at \nL5-S1... in close proximity to the traversing right S1 nerve root in the right paracentral \nspace without definite mass effect or approximation.” [Id. at 9.] \n An MRI scan of her right lower extremity was conducted on 30 October 2020, and no \nremarkable findings were reported. \n Dr. Edward Saer saw the claimant on 2 November 2020 and reviewed her MRI \nfindings. He assessed: \nShe is symptomatically the same. She says she is going to start physical \ntherapy again tomorrow. The MRI of the hip is basically negative. There is no \nevidence of labral tear, no increased marrow signal or AVN, no joint effusion. \nI reassured her that her hip really is okay. Her symptoms are likely referred \nfrom the lumbar spine. At this point she has had good treatment and I think \nthat she just needs to complete her therapy. Hopefully she will begin to \nimprove soon. \n \n[Id. at 13.] \nA nerve conduction/EMG study was performed on 1 March 2021. The findings were \nwithin normal limits and Dr. Rodrigo Cayme’s impression was of a normal study. [Id. at \n14.] He released the claimant without any restrictions. \nA right hip arthrogram was then performed on 24 March 2021. Dr. Samuel Edwards \nfound a “tear of the right acetabular labrum between the 1:00 and 10:00 positions.” [Id. at \n18.] \nOn 13 April 2021, Dr. Cayme released the claimant to work without restrictions. [Id. \nat 19.] \nAnother MRI scan of the right hip was performed on 14 July 2021. The impression \nincluded, “Asymmetric deformity and truncation of the right labrum. This is seen anteriorly \nand laterally. This is consistent with labral tear without a known history of surgery. No \nhistory of surgery is provided.\" [Id. at 20.] That report was modified later the same day to \n\nB. GRANT- H005904 \n8 \n \nnote, “Patient does have a history of prior right labral repair. Findings are consistent with \npostoperative change.” [Id. at 21.] \n On 12 August 2021 Dr. Victor Vargas released the claimant to work without \nrestrictions. [Id. at 22.] \n The claimant presented for an FCE on 17 September 2021. That evaluation report \nstated: \nThe results of this evaluation indicate that an unreliable effort was put forth, \nwith 38 of 55 consistency measures within expected limits... during formal \nAROM testing, she demonstrated that she was not able to flex her hip more \nthan 75 degrees. However, during functional aspects of testing, she was \nobserved repeatedly assuming a flex position of her hip greater than 90 \ndegrees. She also failed to produce a significant cardiovascular response to \nphysical testing that would indicate that a significant degree of effort was \nbeing put forth. Her gait was also not consistent throughout the evaluation. \nDuring the walking trials she exhibited bulking/jerking movements of her \nright hip, but during prolonged walking and at other points throughout the \nevaluation she was observed walking with a smooth uninhibited gait pattern. \nShe also had pain reports that did not correlate with her movement patterns. \nHer frequent pain report level of 8 does not correlate with the description of \nthis level of pain provided to her and she failed to exhibit outward \ncompensatory movements. \n. . . \nShe reports she did more PT and injections and then underwent surgery in \nMay of 2021. She reports she has more PT after surgery and has had more \nMRIs which showed that her hip looks fine... She reports that her treatment \nhas consisted of physical therapy and injections in her right hip... Ms. Grant \ndescribes her pain as being in her right hip. She reports additional areas of \npain that include her low back which she does correlate to her work related \ninjury.  \n \n[Id. at 23, 26.] \n  The claimant then returned to Dr. Tucker after the FCE, and he noted the following: \nBarbara Grant presents back today for recheck. She continues to have \nbuckling of the right thigh and hip with ambulation. We have been unable to \nfind any anatomic source for this. The postoperative MRI has shown no signs \nof any pathology in the hip. We obtained a functional capacity exam to \nattempt to assign permanent work restrictions as she has now reached \nmaximal medical improvement. However the effort and symptoms on the \nFCE were inconsistent and they could not give us a valid set of work \nrestrictions. I discussed this with Ms. Grant today. There is really nothing \nmore that I can find to improve her hip or function. I will not be able to \n\nB. GRANT- H005904 \n9 \n \nassign permanent work restrictions secondary to the FCE. There is no \npermanent partial impairment based on the AMA guide to permanent partial \nimpairment ratings volume 4. Therefore we are releasing her to return to \nwork without restrictions and without an impairment rating. She was \ninstructed to follow-up as needed if she had any change in symptoms or new \noccurrence of injury. \n \n[Id. at 45.] Dr. Tucker also entered a Return to Work note that stated, “She has reached \nMMI and may return to work full duty. No impairment rating assigned.” [Id. at 46.] \n On 15 October 2021, the claimant presented to an emergency department with \ncomplaints of back pain. That note states that she reported a recent return to work after a \nlumbar injury and that she awoke that morning with her back spasming. Mild degenerative \nchanges were noted on a CT scan of her lower lumbar spine. She was diagnosed with \ndegenerative lumbar disc disease and lumbar muscle pain. She was prescribed Valium for \nmuscle spasms, topical Lidocaine patches, and a steroid dosepak. [Id. at 49-50.] \n The claimant presented for a thoracic spine MRI on 7 December 2021. Her history \nnoted, “Low back pain radiating to the right hip. Patient states that her hip and upper right \nthigh are sensitive to touch. Patient reports the pain is now radiating to the back and a \nlittle below her bra line.” The conclusions from that scan were: \nC-shaped curvature of the lumbar spine with main convexity to the right \nside. \n \nA broad-based disc bulge most pronounced in the central position as the C5-6 \nlevel seen on scout imaging with suggestion of partial effacement of the \nventral cord. \n \nSmall left paracentral protrusion at T7-8. \n \nRetrolisthesis, shallow broad-based disc bulge with superimposed central \nprotrusion, posterior annular tear and moderate facet hypertrophy at the L5-\nS1 level contributing to mild exiting neural foraminal stenosis and no nerve \nroot compression. \n \n[Id. at 52-53.] \n\nB. GRANT- H005904 \n10 \n \nThe claimant saw Dr. Rosenzweig as an authorized provider, after a change of \nphysician, on 11 December 2023. The note from her examination by Dr. Rosenzweig \nincludes: \nShe has ongoing groin pain, burning pain, back pain and hip pain. She is \nunder contract with pain management at Arkansas Spine and Pain. She \nreceives currently hydrocodone and had been on oxycodone. She had a variety \nof injections. She had an FCE which revealed inconsistent effort and non-\nreliable evaluation and was discharged from Dr. Jimmy Tucker’s care. The \nlast MRI of the lumbar spine was on 03/24/2023, which revealed degenerative \ndisc changes at 5-1 with a broad-based protrusion at 5-1, mild facet \narthropathy 3-4 through 5-1. No evidence of stenosis. She had a visit recently \nwith Dr. Phillips who felt that she might be myelopathic and recommended \nMRI of the thoracic spine. This was based on hyperreflexia. \n. . .  \nPrevious surgery hip arthroscopy with a labral repair. Although not reported \nin this note, she has had a prior intervention with the SI joint injection, \nlateral femoral cutaneous nerve injection for meralgia parasthetica. \n. . .  \nPain drawing reveals pain across the low back over the right greater \ntrochanter area over the anterior superior iliac spine, mid back and left flank \npain. \n. . .  \nPain score is 8...she began shaking and quivering in her right leg with her \nexamination...the quivering in her leg with examination appears to be pain \ninduced but somewhat unusual finding that did not follow a specific nerve or \nmuscle group. \n \nIMPRESSION: Chronic back and right hip pain status post arthroscopic \nlabral repair. \n \nPLAIN/RECOMMENDATIONS:  Deferred for further assessment of an MRI \npending per Dr. Phillips and review medical records. Consider updating MRI \nof her pelvis. Check the status of her hip. She states her left hip was hurting \nand is why I would like to have this included on MRI. I do not have a clear \nanswer for her source of chronic pain. I did review her MRI of the lumbar \nspine which appeared to be relatively benign. The hip and pelvis MRI would \nbe helpful to assess her iliopsoas tendon and the status of her labral repair.  \n \n[Cl. Ex. No 1.] \n \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted as fact. It is settled that the \nCommission, with the benefit of being in the presence of the witnesses and observing their \n\nB. GRANT- H005904 \n11 \n \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 \n(1999).   \nA.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT SHE IS ENTITLED TO ADDITIONAL MEDICAL BENEFITS. \n \nAn employer is required to provide treatment that may be reasonably necessary in \nconnection with a compensable injury. ACA § 11-9-508(a). Reasonable and necessary \nmedical services may include those necessary to diagnose a compensable injury, to reduce \nor alleviate symptoms, to maintain healing, or to prevent further deterioration of damage. \nJordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). The employee has \nthe burden of proving by a preponderance of the evidence that medical treatment is \nreasonably necessary. Stone v. Dollar General Stores, 91 Ark. App. 260, 209 S.W. 3d 445 \n(2005). In so doing, she must also establish that the treatment is causally related to her \nwork injury. Pulaski Cty. Spec. Sch. Dist. v. Tenner, 2013 Ark. App. 569, 2013 WL 5592602. \nWhat constitutes reasonably necessary treatment is a question of fact for the Commission. \nDalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). \n I do not find that the claimant has proved by a preponderance of the evidence that \nanother MRI scan of her hip is reasonably necessary. The claimant was released by Dr. \nTucker in September of 2021 and then eventually saw Dr. Rosenzweig through a change of \nphysician in December of 2023. The history she provided for her 2021 FCE noted that since \nsurgery, she “has had more MRIs which showed that her hip looks fine.” Dr. Tucker’s note \nupon her release stated that “the postoperative MRI has shown no signs of any pathology in \nthe hip.” \n\nB. GRANT- H005904 \n12 \n \nShe even acknowledged in her testimony that it is “important for Dr. Rosenzweig to know \nabout all the other diagnostic studies if, in fact, he’s going to recommend more diagnostic \nstudies.” \n Yet, she testified that she did not provide Dr. Rosenzweig with any discs or reports \nfrom past studies, except for a 2023 lumbar spine MRI, which she explained as, “He asked \nme to bring the most recent, which is what I took.” Additionally, she testified that she had \nbeen seen by several other providers, between Drs. Tucker and Rosenzweig, who are not \nnoted in Dr. Rosenzweig’s record. Dr. Rosenzweig’s note indicates that a “hip and pelvis \nMRI would be helpful to assess her iliopsoas tendon and the status of her labral repair.” Dr. \nTucker’s discharge note, however, comments exactly that an MRI has already shown no \npostoperative pathology.  \nAbsent evidence that Dr. Rosenzweig’s recommendation was based on a review of \nthe relevant past imaging (imaging that the claimant acknowledged would be important for \nhis review) and that he either discounted the findings therein or that he had reason to \nbelieve that new symptomology required new imaging, I do not find that the claimant is \nentitled to additional medical benefits in the form of additional MRI scans. In the absence \nof the same, I am unable to credit Dr. Rosenzweig’s opinion as one that is fully informed. \nSee Poulan Weed Easter v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002) (the \nCommission is authorized to accept or reject a medical opinion and is authorized to \ndetermine its medical soundness and probative value). Accordingly, the claimant has failed \nto meet her burden of proof on her claim for additional medical benefits. \nI should note that this finding does not turn on the lengthy back-and-forth in the \nrecord (and my rulings on the objections) around the claimant’s suspicions and accusations \nrelated to the FCE or the evaluator. She opened the door to the respondents’ questions \nabout the veracity of the testing itself, and I find her speculative opinions relevant with \n\nB. GRANT- H005904 \n13 \n \nregard to her discounting of the merit of the FCE report. And while I do find her \naccusations to be without merit and find her credibility to be lacking with regard to her \nactual efforts on the exam, I do not find her credibility on the nature of her ongoing \ncomplaints to be at issue in the question before me— whether additional imaging is \nreasonable and necessary in light of her admission that she did not provide all of the \nrelevant studies to Dr. Rosenzweig. \nV.  ORDER \n     Consistent with the Findings of Fact and Conclusions of Law stated above, this claim for \nadditional benefits is denied and dismissed.  \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":25628,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H005904 BARBARA GRANT, EMPLOYEE CLAIMANT BAPTIST HEALTH, SELF-INSURED EMPLOYER RESPONDENT CLAIMS ADMINISTRATOR SERVICES, TPA RESPONDENT OPINION FILED 24 SEPTEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1","denied:1"],"injuryKeywords":["hip","back","lumbar","thoracic","cervical"],"fetchedAt":"2026-05-19T22:49:18.167Z"},{"id":"alj-H303029-2024-09-24","awccNumber":"H303029","decisionDate":"2024-09-24","decisionYear":2024,"opinionType":"alj","claimantName":"Trenton Swan","employerName":"Abm Industries, Inc","title":"SWAN VS. ABM INDUSTRIES, INC. AWCC# H303029 September 27, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SWAN_TRENTON_H303029_20240924.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SWAN_TRENTON_H303029_20240924.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H303029 \n \nTRENTON SWAN, Employee      CLAIMANT \n \nABM INDUSTRIES, INC., Employer     RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA Carrier/TPA   RESPONDENT \n \n \n OPINION FILED SEPTEMBER 27, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Russellville, Pope \nCounty, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by ERIC NEWKIRK, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn May  10,  2023,  the  claimant’s  attorney, Mark  Peoples,  filed  an  AR-C  requesting \nvarious  compensation  benefits  in  which  he  alleged  injuries  to  his neck,  back  and  head on  or \nabout May 8, 2023. The claim was accepted as compensable, and all related benefits were paid.  \nOn September  6,  2023,  Mr. Peoples filed  a  Motion  to  Withdraw  as  Counsel,  which  the \nFull  Commission  granted  on September  13,  2024.  No  further  action was  taken  regarding  this \nclaim. \n On April  12,  2024,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this  claim \nbe dismissed for lack of prosecution. A hearing was scheduled for September 12, 2024. Notice of \nthat hearing was sent to the claimant by certified mail, return receipt requested on June 4, 2024. \nUnited States Postal Department records indicate that claimant received and signed for the notice \n\nSwan – H303029 \n \n-2- \non June 15, 2024. Despite having received notice of the scheduled hearing, the claimant failed to \nappear at the hearing and has failed to respond to the motion in any form or manner. \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2608,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H303029 TRENTON SWAN, Employee CLAIMANT ABM INDUSTRIES, INC., Employer RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA Carrier/TPA RESPONDENT OPINION FILED SEPTEMBER 27, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope Cou...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:49:32.935Z"},{"id":"alj-H305276-2024-09-23","awccNumber":"H305276","decisionDate":"2024-09-23","decisionYear":2024,"opinionType":"alj","claimantName":"Stacey Dotta","employerName":"D & H Co","title":"DOTTA VS. D & H CO. AWCC# H305276 September 23, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Dotta_Stacey_H305276_20240923.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Dotta_Stacey_H305276_20240923.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305276 \n \nSTACEY DOTTA, \nEMPLOYEE                                                                                                              CLAIMANT \n \nD & H CO., \nEMPLOYER                                                                                                         RESPONDENT  \n \nGREAT AMERICAN ASSURANCE CO., \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED SEPTEMBER 23, 2024 \n \nHearing conducted on Friday, September 13, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Ms. Stacey Dotta, pro se, of Paragould, Arkansas, did not appear in person at the \nhearing.  \n \nThe Respondents were represented by the Honorable Zack Ryburn, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on September 13, 2024, in Jonesboro, Arkansas. No testimony was taken \nin  the  case.  Claimant, who according  to  Commission  records  is pro  se,  failed  to  appear  at  the \nhearing. \nThe Claimant worked for the Respondent/Employer as a cashier. The date for Claimant’s \nalleged injury was on August 10, 2023. She reported her injury to Respondent/Employer on August \n11,  2023. Admitted  into  evidence  was Respondents Exhibit  1, Form  AR-C  and  Claimant’s \nAttorney’s Motion to Withdraw, consisting of 2 pages. I have also blue-backed Form AR-1, Form \nAR-2, Dotta  email  dated  June  30,  2024, a certified  return receipt  dated  June 17,  2024,  copy  of \ncertified envelope received August 27, 2024, and copy of hearing notice, as discussed infra. \n\nDOTTA, AWCC No. H305276 \n \n2 \n \nThe  record  reflects on August 17,  2023,  a  Form AR-1 was  filed  with  the  Commission \npurporting  that Claimant injured  herself  when she  stood  up  from  cleaning  the  beverage  station. \nThe details of the injury were not mentioned in this form. On August 21, 2023, a Form AR-2 was \nfiled with  no  mention  of  whether  Respondents  would  deny compensability  of  this claim.  On \nSeptember 22, 2024, Claimant filed a Form AR-C through her then-attorney, Tanner Thomas of \nRainwater,  Holt,  and  Sexton,  purporting  an  alleged right knee  injury. Attorney Jason  Ryburn \nentered his appearance on behalf of the Respondents on September 5, 2023. Attorney Laura Beth \nYork, also with Rainwater, Holt, and Sexton, filed a Motion to Withdraw as Counsel on behalf of \nher firm that was granted on May 23, 2024. \nThe Respondents next filed a Motion to Dismiss on June 5, 2024, requesting this claim be \ndismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. Mail, notice \nof the Motion to Dismiss from my office on June 14, 2024, to her last known address. The certified \nnotice was claimed by Claimant on June 17, 2024. Also, the notice sent regular U.S. Mail was not \nreturned to the Commission. Claimant did respond to the notice in writing as required on June 30, \n2024, objecting to the dismissal and willing to have a hearing on the merits of her claim. Due to \nClaimant’s response, I have held the motion to dismiss in abeyance on July 1, 2024. Since then, \nClaimant has been sent a set of prehearing questionnaires which has not been completed and return \nto the  Commission  to this  date.  The  prehearing  questionnaire  was  due  July  23,  2024. Due  to \nClaimant’s failure to prosecute her claim, I have reinstated the Motion to Dismiss. Thus,  in \naccordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice of \nRespondents’ Motion to Dismiss hearing date at her current address of record via the United States \nPostal  Service  (USPS), First  Class  Certified  Mail,  Return  Receipt  Requested, and  regular  First-\nClass Mail, on July 30, 2024. The certified notice was returned to the Commission unclaimed but \n\nDOTTA, AWCC No. H305276 \n \n3 \n \nthe regular First-Class mail notices were not returned. The hearing took place on September 13, \n2024. As mentioned before, the Claimant did not show up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant and  Respondents  both  had  reasonable  notice of  the September 13, \n2024, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. Though the hearing notice was \nunclaimed and returned to the Commission on August 27, 2024, the same notice was also sent to \nthe Claimant’s address of record by First-Class U.S. Mail on July 30, 2024, and did not return to \nthe  Commission.  The  Claimant  is  responsible  for  providing  the  Commission  with  her current \naddress. The  Commission  is  responsible  for  providing  reasonable  notice  of  a  hearing  to  the \nClaimant.  Sending  a  hearing  notice  to  the  last  known  address  that  was  provided  to  it  by  the \nClaimant is reasonable. Thus, I find by the preponderance of the evidence that reasonable notice \nwas given to both parties.  \n\nDOTTA, AWCC No. H305276 \n \n4 \n \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  her Form  AR-C  on \nSeptember 22, 2023. Since then, Claimant has objected to the dismissal filed by the Respondents \non June 5, 2024, but failed to turn in her prehearing questionnaire when the motion was held in \nabeyance. The Claimant has failed to do the bare minimum in prosecuting her claim. Therefore, I \ndo find by the preponderance of the evidence that Claimant has failed to prosecute her claim by \nfailing to request a hearing. Thus, Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is denied. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":7018,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305276 STACEY DOTTA, EMPLOYEE CLAIMANT D & H CO., EMPLOYER RESPONDENT GREAT AMERICAN ASSURANCE CO., CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 23, 2024 Hearing conducted on Friday, September 13, 2024, before the Arkansas Workers’ Compensation Commission ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2","denied:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:49:15.967Z"},{"id":"full_commission-H206949-2024-09-19","awccNumber":"H206949","decisionDate":"2024-09-19","decisionYear":2024,"opinionType":"full_commission","claimantName":"Glenda Lurry","employerName":"Coca-Cola Consolidated, Inc","title":"LURRY VS. COCA-COLA CONSOLIDATED, INC. AWCC# H206949 September 19, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Lurry_Glenda_H206949_20240919.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Lurry_Glenda_H206949_20240919.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H206949 \n \nGLENDA F. LURRY, EMPLOYEE  CLAIMANT \n \nCOCA-COLA CONSOLIDATED, INC., \nEMPLOYER RESPONDENT \n \nINDEMNITY INSURANCE COMPANY OF \nNORTH AMERICA, INSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED SEPTEMBER 19, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant is Pro Se. \n \nRespondents represented by the HONORABLE RICK BEHRING, JR., \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed January 5, 2024.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n \n2. The stipulations set forth above are reasonable and are hereby \naccepted. \n \n3. Claimant has not proven by a preponderance of the evidence that \nshe is entitled to additional treatment of her stipulated compensable \nlower back injury.  \n\n \nLURRY - H206949  2\n  \n \n \n4. Claimant has not proven by a preponderance of the evidence that \nshe is entitled to temporary total disability benefits for any period in \nconnection with her stipulated compensable lower back injury. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's January 5, \n2024 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents. \n \n \n\n \nLURRY - H206949  3\n  \n \n \nDISSENTING OPINION \n The ALJ in this case found that the Claimant failed to prove by a \npreponderance of the evidence that she is entitled to additional treatment of \nher stipulated compensable lower back injury and that she failed to prove \nby a preponderance of the evidence that she is entitled to temporary total \ndisability benefits for any period in connection with such stipulated injury.  \nAfter a de novo review of the record, I would rule in favor of the Claimant as \nhaving proved by a preponderance of the evidence that she is entitled to \nadditional treatment of her stipulated compensable lower back injury, but \nconcur with the ALJ’s findings of denial of temporary total disability benefits \nfor any period.   \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).  What constitutes reasonable and necessary medical \ntreatment is a question of fact for the Commission.  White Consolidated \nIndus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  \n\n \nLURRY - H206949  4\n  \n \n \nClaimant  continuously  suffered  symptoms  from  her  compensable \ninjury  and  as  a  result  exercised  her  one-time  right  to  change  physicians. \nClaimant  was  seen  by  Dr.  Jordan  Walters  who  recommends  additional \nmedical treatment in the form of medial branch blocks.  I find Dr. Walters’s \nrecommended  treatment  is  reasonable  and  necessary  and  would  grant \nClaimant’s entitlement to additional medical treatment in the form of medical \nbranch blocks.  \nFor the reasons stated above, I respectfully dissent. \n \n \n    ___________________________________ \n  M. SCOTT WILLHITE, Commissioner","textLength":4266,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H206949 GLENDA F. LURRY, EMPLOYEE CLAIMANT COCA-COLA CONSOLIDATED, INC., EMPLOYER RESPONDENT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 19, 2024 Upon review before th...","outcome":"granted","outcomeKeywords":["affirmed:2","granted:4","denied:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:44.970Z"},{"id":"full_commission-G904931-2024-09-19","awccNumber":"G904931","decisionDate":"2024-09-19","decisionYear":2024,"opinionType":"full_commission","claimantName":"Porter Sims","employerName":"Bryant School District","title":"SIMS VS. BRYANT SCHOOL DISTRICT AWCC# G904931 September 19, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Sims_Porter_G904931_20240919.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Sims_Porter_G904931_20240919.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G904931 \n \nPORTER SIMS, \nEMPLOYEE \n \nCLAIMANT \nBRYANT SCHOOL DISTRICT,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSOCIATION \nWCT, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 19, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE DANIEL E. WREN, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed in part, reversed in part. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nOctober 24, 2023.  The administrative law judge found that the claimant \nfailed to prove he was entitled to additional temporary total disability \nbenefits or additional medical treatment.  After reviewing the entire record \nde novo, the Full Commission finds that the claimant did not prove he was \nentitled to additional temporary total disability benefits.  We find that the \nclaimant proved additional medical treatment as recommended by Dr. \nSmith was reasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).     \n\nSIMS - G904931  2\n  \n \n \nI.  HISTORY \n Porter Sims, now age 69, testified that he became employed with the \nrespondents, Bryant School District, in about September 2005.  The \nrespondents’ attorney examined the claimant at a deposition of record: \nQ.  Describe for me the work that you were doing for the \nBryant School District.   \nA.  Installing and maintaining the HVAC equipment and other \njobs as needed. \n  Q.  What would “other jobs as needed” entail? \nA.  Moving furniture, digging ditches, building fence, \nremodeling rooms, painting.  Could be about anything you \ncould think of, really.   \n \n The parties stipulated that the employment relationship existed at all \npertinent times, including December 20, 2018.  The respondents’ attorney \nexamined the claimant: \n Q.  What happened in December 2018? \nA.  I tripped and fell in the hallway of Hurricane Creek \nElementary School.... \n Q.  And how did you land? \n A.  On my shoulder.     \n \nThe parties stipulated that the claimant “sustained an admittedly \ncompensable injury to his left shoulder” on December 20, 2018 “for which \nthe respondents paid medical and indemnity benefits.”  \n According to the record, Dr. P. Allan Smith performed surgery on \nJuly 24, 2019:  “1.  Left shoulder arthroscopy with rotator cuff repair.  2.  \nBiceps tenodesis with labral debridement.  3.  Subacromial \n\nSIMS - G904931  3\n  \n \n \ndecompression.”  The post-operative diagnosis was “1.  Left rotator cuff \ntear.  2.  Impingement.  3.  Biceps tendon and labral tear.”   \n Dr. Smith reported on February 19, 2020, “Porter Simms (sic) \nunderwent a left rotator cuff repair with biceps tenodesis on July 24, 2019.  \nThey reached MMI on January 28, 2020.  Based on the guides to the \nevaluation of permanent impairment, fourth edition, they sustained a 4% \nupper extremity impairment or a 2% whole person impairment[.]”  The \nclaimant testified that he eventually returned to full-duty work following \nsurgery performed by Dr. P. Allan Smith, but that he continued to suffer with \nleft shoulder pain.   \n Dr. Shahryar Ahmadi performed a second surgery on December 14, \n2020:  “Arthroscopy, left shoulder, surgical debridement, extensive.”  The \npre- and post-operative diagnosis was “1.  Left shoulder rotator cuff tear, \nlow-grade articular-sided tear of the supra and infraspinatus and \nsubscapularis.  2.  Internal derangement of the left shoulder.  3.  Left \nshoulder bursitis.”   \n Dr. Ahmadi noted on March 23, 2021: \n  Is status post left shoulder arthroscopy and debridement.... \nPorter Ray Sims is a 65 y.o.  Underwent above procedure on \nDecember 14, 2020.  Patient finished a course of physical \ntherapy.  Currently does not have any significant pain.... \nIn summary this is 65-year-old gentleman who is [more] than \n3 months out from left shoulder arthroscopy and debridement.  \nHe is doing very well and completely satisfied result of \noperation.  Impairment rating was done today.  At this point he \n\nSIMS - G904931  4\n  \n \n \ncan go back to normal activity without any restriction.  We are \ngoing to follow the patient as needed basis.   \n \n Dr. Ahmadi assigned the claimant a 4% whole-person impairment \nrating on March 23, 2021.  Dr. Ahmadi also stated on March 23, 2021, “It is \nmy medical opinion that Mr. Porter Sims may return to work without \nrestrictions.”  The claimant testified that “my arm seemed to feel pretty \ngood” following surgery by Dr. Ahmadi.  The claimant testified, however, \nthat he again began to feel pain in his left shoulder.   \n An MRI left shoulder arthrogram was taken on December 23, 2021 \nwith the following impression: \n  1.  Circumferential labral tearing. \n2.  Focal moderate grade partial-thickness articular sided tear \ninvolving the anterior fibers of the supraspinatus tendon which \nis in close proximity to the tendon anchor within the humeral \nhead.  This finding is suggestive for a residual versus \nrecurrent tendon tear.  Mild supraspinatus tendinopathy.   \n3.  Contrast is present within both the glenohumeral joint \ncapsule and the subacromial-subdeltoid bursa without a \ndistinguishable full thickness tendon defect.   \n4.  Moderate subscapularis tendinopathy. \n5.  Glenohumeral cartilage loss.   \n \n Dr. Joel N. Smith performed surgery on March 10, 2022:  “1.  Left \nshoulder arthroscopic repair involving the subscapularis.  2.  Left shoulder \nmini open biceps tenodesis.  3.  Left shoulder arthroscopy with \nchondroplasty of the humeral head, glenoid and labral debridement.”  The \npost-operative diagnosis was “Left shoulder pain with rotator cuff tear, \nbiceps tendinitis, chondromalacia.”   \n\nSIMS - G904931  5\n  \n \n \n The respondents’ attorney examined the claimant: \nQ.  And then Dr. Joel Smith did surgery and he kept you off \nwork? \n  A.  Yes, ma’am.   \nQ.  Did you receive disability checks, from Workers’ Comp, \nwhile you were off work?   \nA.  Yes, ma’am.  I received checks.   \nQ.  All right.  So, how was your shoulder after this third \nsurgery? \nA.  It hurt.  But they kept telling me that’s expected after \nsurgeries and I figured that, too.  That was my third one.   \nQ.  Where was the pain after this third surgery? \nA.  Same area.  On top of my left shoulder, like it is right now.   \n \n On March 15, 2022, Kelly Payer, LPN informed “Misty,” “Please \nexcuse Mr. Sims from work March 10, 2022 until his postoperative \nappointment March 22, 2022.  An updated work note will be given at that \ntime.”  The record indicates that Kelly Payer was corresponding with Misty \nThompson, a Claims Supervisor for the respondent-carrier. \n The claimant testified that he retired from employment with the \nBryant School District on or about June 30, 2022.     \n The record includes a series of Daily Notes from Athletico Physical \nTherapy beginning August 8, 2022.  It was assessed at Athletico Physical \nTherapy on August 8, 2022, “Held on functional IR stretch in attempts to \ndecrease the client’s increased c/o burning that follow.  The client continued \nto have some burning pain in the arm with table exercises.”   \n Dr. Smith’s impression on August 16, 2022 included “1.  Shoulder \nPain, Left.”  Dr. Smith signed a note indicating, “The patient was last \n\nSIMS - G904931  6\n  \n \n \nevaluated on 08/16/2022....Mr. Sims is to remain off work until seen back in \nclinic in 6 weeks.”   \n Kelly Payer sent the following communication on August 31, 2022: \n  RTW \n  To whom it may concern, \nMr. Sims may return to work at a sedentary position only with \nno use of the left \narm. \n \n The record indicates that Dr. Joel Smith’s signature was attached to \nKelly Payer’s August 31, 2022 communication.     \n Misty Thompson sent an e-mail to Leslie Nichols, a Bookkeeper with \nthe respondent-employer, on August 31, 2022:  “Attached is an updated \nwork release on Mr. Sims.  Light duty – sedentary position only with no use \nof the left arm.  If he remained employed by the District, would light duty be \navailable within these restrictions?\"  Terry Harper, the respondent-\nemployer’s Maintenance Director, informed Leslie Nichols on August 31, \n2022, “Yes if he would be allowed to be put in light duty.”  Leslie Nichols \nthen corresponded with Misty Thompson on August 31, 2022:  “Good \nafternoon, please see the response from Terry Harper regarding Porter \nSims.  Accommodations would be made for him to return to work if he was \nstill employed.”  Misty Thompson then wrote, “Got it!  I will issue his final \nTTD check tomorrow, $664.00 for the dates of 08/24-08/31/22.”  \n The respondents’ attorney examined the claimant: \n\nSIMS - G904931  7\n  \n \n \n  Q.  Did [Dr. Smith] ever send you back to work? \nA.  He – on August Misty called me and told me that Dr. Smith \nsaid I could go back to work on light duty, with no use of my \nleft arm.  But she didn’t add that.  That was – she just said I \ncould go back to work on light duty.  I found out the no use the \nleft arm was in there.  But she didn’t tell me that.   \nQ.  How’d you find that out? \nA.  From my doctor.   \nQ.  So what did you do when she told you that you were \nreleased to light duty, back in August? \nA.  I said that was fine.  I had no arguments.   \nQ.  Had you already retired, at that point? \nA.  Yes, ma’am.  I retired in June, she called me in August.   \n \n The claimant’s attorney examined Terry Harper: \nQ.  Mr. Harper, what is your job title within the Bryant School \nDistrict? \n  A.  I’m our Facilities Maintenance Director. \nQ.  All right.  And as the Maintenance Director were you the \nsupervisor of Mr. Sims?   \nA.  No, sir....I didn’t take the job until July 1\nst\n of last year....I \nnever supervised Buddy.   \nQ.  Okay.  So you don’t know Mr. Sims? \nA.  I know him.  \nQ.  Okay.  How do you know him? \nA.  Just because we’re in the same building.  I was in \ntransportation at the time.  I was one of our administrators of \ntransportation.... \nQ.  Was he employed by the District on August 31\nst\n of 2022? \nA.  That would be an HR question.  I’m not sure at that point \nand time.... \nQ.  Did you answer the question? \nA.  From Leslie Nichols, I did. \nQ.  And what was your answer? \nA.  I said [as read], “Yes, if he would be allowed to be put on \nlight duty.”   \nQ.  Was there a specific job mentioned? \nA.  That was it.... \nQ.  Any details at all about a job that may or may not have \nbeen communicated to my client? \n\nSIMS - G904931  8\n  \n \n \nA.  Nope, not – not by me.  Our practice is I have several on \nlight duty now that are sedentary from six to eight hours a day, \nbut I bring them back in just so they don’t have to burn their \nvacation time or their sick time.  So I accommodate – I’ve \nnever said no to anyone.   \nQ.  Are those people employed by the Bryant School District? \nA.  Yes.   \n \n The respondents’ attorney cross-examined Terry Harper: \nQ.  Do you know of any reason why Porter Sims would not \nhave been allowed to return to work? \nA.  Not to my knowledge, no. \nQ.  And the testimony is going to come, according to Mr. \nSims’ attorney, that Mr. Sims had retired.  Do you know of any \nreason why he would not have been rehired on light duty \nrestrictions? \nA.  Not to my knowledge, no.   \n \n The claimant followed up for treatment at Athletico Physical Therapy \nbeginning September 7, 2022.  It was noted at Athletico on September 15, \n2022, “The client reports that he rolled over in bed 3 days ago when he felt \na pop in his shoulder, resulting in increased pain.  The client notes that his \npain eventually dissipated and now he feels his normal shoulder burn.”   \n Dr. Joel N. Smith reported on September 27, 2022: \nThis is a 67 year old male who is being seen for a chief \ncomplaint of follow up shoulder pain, involving the left \nshoulder.  This occurred in the context of an injury at work and \nhas been treated with activity modification and physical \ntherapy.  The left shoulder pain occurs when sleeping on \nshoulder, occurs at night, constantly occurs, and occurs with \nactivity and associated with still complaints of pain.  Has pain \nwith PT, pain with sleeping, and was helping his son change a \ncarburetor on Saturday, holding a wrench, and felt a pop – \npain has increased since then.  The left shoulder pain 4 out of \n10 currently.  He has the following pertinent history:  prior \n\nSIMS - G904931  9\n  \n \n \nrotator cuff repair.  He reports intermittent functional \nlimitations and difficulty lifting objects/weight.  Since the last \nvisit, his condition is stable.... \n \n Dr. Smith’s impression included “1.  Shoulder Pain, left....Plan:  \nOrder MRI – shoulder.”  Dr. Smith stated, “Mr. Sims is to remain off work \nuntil seen back in clinic for MRI result follow up.”   \n Misty Thompson informed a Workers’ Compensation Paralegal on \nOctober 17, 2022 that the respondent-carrier would not authorize the MRI \nrecommended by Dr. Smith on September 27, 2022.   \n An MRI left shoulder arthrogram was taken on November 23, 2022 \nand was compared to the MRI taken December 23, 2021, with the following \nimpression: \n1.  Prior rotator cuff repair with near full-thickness \nmidsubstance subscapularis tear and deep articular sided and \ninterstitial tearing superiorly and inferiorly at the subscapularis \ntendon.  There are intact bursal sided fibers at the anchor \nsuperiorly at the lesser tuberosity.   \n2.  Anchor superiorly in the humeral head with fibers of the \nsupraspinatus tendon maintaining continuity to the anchor.  \nThere is, however, mild articular sided fraying/thinning of the \nsupraspinatus tendon with articular sided/interstitial tearing \npropagating across the conjoined portion/anterior \ninfraspinatus tendon just proximal to the footplate tear.  No \nfull-thickness supraspinatus or infraspinatus tear.   \n3.  Circumferential labral tearing/detachment. \n4.  Prior biceps tenodesis. \n5.  Defect in the joint capsule at the superior margin of the \nsubscapularis tendon with gadolinium extending from the joint \nspace into the subacromial/subdeltoid bursa. \n6.  Moderate acromioclavicular joint arthritis.  Mild \nglenohumeral arthritis.   \n \n\nSIMS - G904931  10\n  \n \n \n Dr. Theodore Hronas corresponded with the respondents’ attorney \non March 15, 2023: \n  At your request, the following films and reports were reviewed: \n  MRI arthrogram of the left shoulder, 12/23/2021. \n  Operative note, 03/10/22.  Joel N. Smith, M.D. \n  MRI arthrogram of the left shoulder, 11/23/2022. \n \nThe clinical history is of a work-related accidental injury \ndescribed as a fall injury resulting in a torn left rotator cuff.  \nRotator cuff repair was performed in 2019, 2020, and 2022.  \nOn September 24, 2022, his left shoulder popped while \nchanging a carburetor.  Two MRI arthrograms of the left \nshoulder are presented for review.  The studies are of good \nquality and sufficient for diagnostic purposes.  I am a board-\ncertified radiologist with additional training in body and \nmusculoskeletal MRI and therefore my primary focus will be \non the study provided. \n \nThe MRI arthrogram of the left shoulder, 12/23/2021, shows \nsusceptibility artifact within the humeral head related to \nmetallic bone anchors secondary to prior rotator cuff tear.  \nThere is a small 2 mm region of contrast signal involving the \nundersurface of the supraspinatus tendon characteristic of a \ngrade II articular surface tear.  The infraspinatus and teres \nminor muscles and tendons are normal.  There is abnormal \ncontrast traversing the superior margin of the subscapularis \ncharacteristic of a full thickness tear creating a defect within \nthe adjacent rotator cuff interval, with contrast from the joint \nspace communicating directly with the subacromial/subdeltoid \nbursa.  There is glenohumeral joint arthritis.  The long head of \nthe biceps tendon is not seen within the bicipital groove. \n \nFollowing the MRI arthrogram, further surgery was performed, \n03/10/2022, which included arthroscopic repair of the \nsubscapularis, mini open biceps tenodesis, and humeral head \nchondroplasty with glenoid and labral debridement.   \n \nAn MRI arthrogram of the left shoulder, 12/23/2022, was \nperformed approximately nine months after the prior surgical \nintervention and three months after the injury that occurred on \n\nSIMS - G904931  11\n  \n \n \n09/24/2022.  The exam shows susceptibility artifact related to \nbone anchors used in repair of the supraspinatus and \nsubscapularis tendons.  A previously seen small articular \nsurface tear of the supraspinatus has resolved.  There is an \nextensive high grade partial articular surface tear of the \nmidsubstance of the subscapularis tendon with abnormal \ncontrast occupying the rotator interval characteristic of \ncomplete tear of the superior glenohumeral ligament and \nrotator interval capsule.  The coracohumeral ligament is intact.  \nThe infraspinatus and teres minor muscles and tendons are \nnormal.  The long head of the biceps tendon is not visualized \nconsistent with tenodesis.  There is again circumferential \nlabral tearing and detachment.   \n \nIn summary, there are findings of a successful repair of a \nsupraspinatus tendon.  The most recent MRI arthrogram \nshows a progressive high grade articular surface tear of the \nsubscapularis tendon with a complete tear of the adjacent \nrotator interval capsule and likely the superior glenohumeral \nligament.  There is unchanged circumferential \ntearing/detachment of the labral and stable mild glenohumeral \nosteoarthritis.   \n \nMy findings herein are stated within a reasonable degree of \nmedical certainty.   \n \n A pre-hearing order was filed on June 1, 2023.  According to the pre-\nhearing order, the claimant contended, “The claimant contends he is \nentitled to TTD benefits from August 31, 2022, to a date yet to be \ndetermined.  The claimant contends that on or about December 20, 2018, \nhe sustained an admittedly compensable injury to his left shoulder when he \ntripped and fell while working on air conditioning (AC) units.  The claimant \nhas undergone three (3) surgeries between July 24, 2019, through March \n10, 2022, and has attended multiple visits for conservative treatment.  The \n\nSIMS - G904931  12\n  \n \n \nclaimant contends that on August 16, 2022, he saw Dr. Smith, who \ncontinued his off-work status until September 27, 2022.  The claimant \ncontends that on August 31, 2022, without a physician visit/examination, \nand without any consultation from the claimant, he received a random \nelectrically signed note from a licensed practical nurse (LPN) purporting to \nchange his work status to sedentary with no use of his left arm.  At this \npoint, the adjuster for the Arkansas School Board Association Workers’ \nCompensation Trust, Ms. Misty Thompson, discontinued PPD benefits to \nthe claimant.  Thereafter, on September 27, 2022, the claimant returned for \nhis scheduled visit with Dr. Smith.  The claimant contends he informed Dr. \nSmith he had felt a ‘pop’ in his left shoulder while holding a wrench which \ncaused an increase in his left shoulder pain.  The claimant contends that \nDr. Smith, without any reference to the aforementioned LPN’s August 31, \n2022, note, continued to keep the claimant on off-work status until he \nreturned to Dr. Smith for review of an MRI Dr. Smith ordered at the \nSeptember 27, 2022, visit.  The claimant contends the respondents have \nfailed and/or refused to pay for any medical treatment past September 27, \n2022, and have failed to pay him any additional TTD benefits since they \nterminated them on August 31, 2022.  Therefore, the claimant contends he \nis entitled to payment of the subject and ongoing medical care, as well as \n\nSIMS - G904931  13\n  \n \n \nTTD benefits from the date the respondents terminated them on August 31, \n2022, through a date yet to be determined.”   \n The parties stipulated that the respondents “controvert the payment \nof any additional medical or indemnity benefits other than those they have \nalready paid to date....The respondents contend the claimant has received \nall benefits to which he is entitled.  The claimant was released to sedentary \nduty as of August 31, 2022, which the respondent-employer, the Bryant \nSchool District (the school district) offered and made readily available to the \nclaimant; however, the claimant refused this offer of light duty employment \nand failed and/or refused to even attempt to return to work.  Consequently, \nthe respondents contend the claimant is not entitled to any additional TTD \nbenefits since the employer has work that comports with the claimant’s \nphysical limitations and restrictions, they offered this work and made it \navailable to him, but he failed and/or refused to accept this offer and did not \neven attempt to perform the light duty job.  In addition, the respondents \ncontend that any additional medical treatment the claimant may require \nafter August 31, 2022, is not causally related to his compensable injury, but \nis the result of a new injury and/or independent intervening cause that \noccurred as the result of the claimant working at home and lifting the \nwrench.” \n The parties agreed to litigate the following issues: \n\nSIMS - G904931  14\n  \n \n \n1.  Whether the claimant is entitled to additional medical and \nTTD benefits. \n2.  Whether the claimant’s attorney is entitled to a \ncontroverted fee on these facts. \n3.  The parties specifically reserve any and all other issues for \nfuture litigation and/or determination.   \n \n After a hearing, an administrative law judge filed an opinion on \nOctober 24, 2023.  The administrative law judge found, among other things, \nthat the claimant failed to prove he was entitled to additional temporary total \ndisability benefits after August 31, 2022.  The administrative law judge \nfound that the claimant sustained a “new injury or aggravation” in \nSeptember 2022 and was therefore not entitled to additional medical \ntreatment.  The administrative law judge therefore denied and dismissed \nthe claim.  The claimant appeals to the Full Commission.   \nII.  ADJUDICATION \n A.  Temporary Disability \n Temporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \nHwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing \nperiod” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \nis that period for healing of an injury which continues until the claimant is as \nfar restored as the permanent character of his injury will permit.  Roberson \nv. Waste Mgmt., 58 Ark. App. 11, 944 S.W.2d 858 (1997).  The \n\nSIMS - G904931  15\n  \n \n \ndetermination of when the healing period has ended is a question of fact for \nthe Commission.  Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d \n582 (1982).   \n An administrative law judge found in the present matter, “2.  The \nclaimant has failed to meet his burden of proof in demonstrating he is \nentitled to additional TTD benefits after August 31, 2022[.]”  The Full \nCommission finds that the claimant did not prove he was entitled to \nadditional temporary total disability benefits.  The claimant testified that he \nbecame employed with the respondents, Bryant School District, in about \nSeptember 2005.  The claimant testified that he installed and maintained \nHVAC equipment for the claimant, and that he also performed other duties \nwhich occasionally required manual labor.  The parties stipulated that the \nclaimant sustained a compensable injury to his left shoulder on December \n20, 2018.  The claimant testified that the injury occurred after he tripped and \nfell. \n The claimant thereafter underwent three left shoulder surgeries \nperformed by Dr. P. Allan Smith, Dr. Ahmadi, and Dr. Joel N. Smith.  The \nclaimant’s testimony indicated that he received temporary total disability \nbenefits for times he was off work following surgery.  As we have noted, the \nclaimant’s testimony indicated that he retired from employment with the \nBryant School District on or about June 30, 2022.  The claimant continued \n\nSIMS - G904931  16\n  \n \n \nto receive follow-up treatment related to his left shoulder injury.  In a note \ndated August 31, 2022, Dr. Smith appeared to agree that the claimant could \n“return to work at a sedentary position only with no use of the left arm.”  The \nclaimant testified that he was not expressly informed that he could return to \nwork “with no use of the left arm.”  Nevertheless, the claimant also testified \nthat he had “no arguments” that he had been released to light duty.  Terry \nHarper, the respondent-employer’s Facilities Maintenance Director, credibly \ntestified that the claimant would have been allowed to return to light-duty \nwork.  The claimant did not express an interest in ending his retirement and \nreturning to sedentary or light-duty work for the respondents.  Whether or \nnot the claimant remained within a healing period, the Full Commission \nfinds that the claimant was not totally incapacitated from earning wages on \nor after August 31, 2022.  Therefore, the claimant did not prove he was \nentitled to additional temporary total disability benefits.  See Breshears, \nsupra.   \n B.  Reasonably Necessary Medical Treatment \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (F)  BENEFITS. \n(i)  When an employee is determined to have a compensable \ninjury, the employee is entitled to medical and temporary \ndisability as provided in this chapter.... \n(iii)  Under this subdivision (4)(F), benefits shall not be \npayable for a condition which results from a nonwork-related \nindependent intervening cause following a compensable injury \nwhich causes or prolongs disability or a need for treatment.  A \n\nSIMS - G904931  17\n  \n \n \nnonwork-related independent intervening cause does not \nrequire negligence or recklessness on the part of a claimant.   \n \n An administrative law judge found in the present matter, “3.  The \npreponderance of the evidence demonstrates the claimant sustained a new \ninjury or aggravation supported by new and objective medical findings in \nSeptember 2022; therefore, he has failed to meet his burden of proof in \ndemonstrating he is entitled to additional medical treatment at the \nrespondents’ expense after the date they last paid his medical expenses in \nlate September 2022.”  The Full Commission does not affirm this finding. \n The parties stipulated that the claimant sustained a compensable \ninjury to his left shoulder on December 20, 2018.  Dr. Smith performed a left \nshoulder arthroscopy and rotator cuff repair on July 24, 2019.  Dr. Ahmadi \nperformed a left shoulder arthroscopy on December 14, 2020.  An MRI left \nshoulder arthrogram on December 23, 2021 showed, among other things, \n“1.  Circumferential labral tearing.”  Dr. Joel Smith performed a left shoulder \narthroscopic repair on March 10, 2022.  A physical therapist reported on \nSeptember 15, 2022 that the claimant felt a “pop” in his left shoulder while \nsimply rolling over in bed.  The claimant also testified that his left shoulder \nwould occasionally “pop” during aggressive physical therapy treatment.   \n Dr. Smith reported on September 27, 2022, “Has pain with PT, pain \nwith sleeping, and was helping his son change a carburetor on Saturday, \nholding a wrench, and felt a pop – pain has increased since then.”  It is \n\nSIMS - G904931  18\n  \n \n \nwithin the province of the Workers’ Compensation Commission to reconcile \nconflicting evidence and to determine the true facts.  Georgia-Pacific v. \nCarter, 62 Ark. App. 162, 969 S.W.2d 677 (1998), citing Arkansas Dep’t of \nHealth v. Williams, 43 Ark. App. 169, 863 S.W.2d 583 (1993).  The \nevidence does not demonstrate in the present matter that the so-called \n“wrench incident” in September 2022 was an independent intervening \ncause which caused or prolonged disability or a need for medical treatment.  \nThe question is whether there is a causal connection between the primary \ninjury and subsequent disability.  Guidry v. J&R Eads. Const. Co., 11 Ark. \nApp. 219, 669 S.W.2d 483 (1984).  If there is such a connection, there is no \nindependent intervening cause unless the subsequent disability is triggered \nby activity on the part of the claimant which is unreasonable under the \ncircumstances.  Id.  \n  In the present matter, the Full Commission finds that treatment \nrecommended by Dr. Smith on and after September 27, 2022 was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  The evidence does not demonstrate that the claimant’s \nact of simply handing a wrench to his son on or about September 24, 2022 \nresulted in an “independent intervening cause” which absolved the \nrespondents of liability for providing reasonably necessary medical \ntreatment.  Nor is there any probative evidence demonstrating that the \n\nSIMS - G904931  19\n  \n \n \nclaimant sustained a “new injury or aggravation” on or about September 24, \n2022.  In addition, there is no portion of Dr. Hronas’ March 15, 2023 report \nwhich can be construed as evidence for a finding that there was an \nindependent intervening cause on or about September 24, 2022.  There is \nno probative evidence demonstrating that the abnormalities shown on the \nNovember 23, 2022 MRI were the result of an “independent intervening \ncause” involving a wrench.  Nor was the claimant acting “unreasonably” on \nor about September 24, 2022. \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove he was entitled to additional temporary total \ndisability benefits.  We find that additional medical treatment recommended \nby Dr. Smith on September 27, 2022, including  diagnostic testing, was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  There are currently no other recommendations for \nadditional medical treatment.  The respondents did not prove that there was \nan “independent intervening cause” in accordance with Ark. Code Ann. §11-\n9-102(4)(F)(iii)(Repl. 2012).  For prevailing in part on appeal, the claimant’s \nattorney is entitled to a fee of five hundred dollars ($500), pursuant to Ark. \nCode Ann. §11-9-715(b)(Repl. 2012).   \n \n \n\nSIMS - G904931  20\n  \n \n \n IT IS SO ORDERED.  \n    \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved additional medical treatment as recommended by Dr. \nSmith was reasonably necessary in accordance with Ark. Code Ann. § 11-\n9-508(a)(Repl. 2012). \n Ark. Code Ann. § 11-9-508(a) (Repl. 2012) requires an employer to \nprovide an employee with medical and surgical treatment \"as may be \nreasonably necessary in connection with the injury received by the \nemployee.\" In addition, the claimant must prove a causal connection \nbetween the work-related accident and his alleged disability.  Bates v. Frost \nLogging Co., 38 Ark. App. 36, 827 S.W.2d 664 (1992).  Plainly stated, the \nclaimant must demonstrate by a preponderance of the evidence there \nexists a causal relationship between his current condition and his \n\nSIMS - G904931  21\n  \n \n \nemployment.  Harris Cattle Co. v. Parker, 256 Ark. 166, 506 S.W.2d 118 \n(1974).  \nIt is well settled that there is no causal connection when an alleged \ninjury is the result of an independent intervening cause since:  \n“benefits shall not be payable for a \ncondition which results from a \nnonwork-related independent \nintervening cause following a \ncompensable injury which causes \nor prolongs disability or a need for \ntreatment.  A nonwork-related \nindependent intervening cause \ndoes not require negligence or \nrecklessness on the part of a \nclaimant.”  \n \nArk. Code Ann. § 11-9-102(4)(F)(iii). \nAn aggravation is a new injury resulting from an independent \nincident.  Farmland Ins. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 \n(1996).  Our appellate courts have consistently held that since an \naggravation is a new injury, it must be proved by new objective medical \nfindings of a new injury to a preexisting condition.  See Vaughn v. Midland \nSchool Dist., 2012 Ark. App. 344 (2012).  \nA recurrence is not a new injury but simply another period of \nincapacitation resulting from a previous injury. Atkins Nursing Home v. \nGray, 54 Ark. App. 125, 923 S.W.2d 897 (1996).  A recurrence exists when \nthe second complication is a natural and probable consequence of a prior \n\nSIMS - G904931  22\n  \n \n \ninjury.  Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, 925 S.W.2d 179 \n(1996).   \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness.  Id.  However, \nthe Commission has the authority to accept or reject medical opinions. \nWilliams v. Ark Dept. of Community Corrections, 2016 Ark. App. 427, 502 \nS.W. 3d 530 (2016).  Furthermore, it is the Commission's duty to use its \nexperience and expertise in translating the testimony of medical experts \ninto findings of fact and to draw inferences when testimony is open to more \nthan a single interpretation. \nHere, the claimant must prove a causal relationship exists between \nhis employment, his 2018 compensable injury, and his condition after the \nSeptember 2022 carburetor incident.  Wal-Mart Stores, Inc. v. Westbrook, \n77 Ark. App. 167, 72 S.W.3d 889 (2002).  \nOn August 31, 2022, Dr. Smith released the claimant with light duty \nrestrictions at that time, stating that the claimant “may return to work at a \nsedentary position only with no use of his left arm.” \n\nSIMS - G904931  23\n  \n \n \n Despite these clear restrictions, the claimant advised Dr. Joel Smith \non September 27, 2022, he “was helping his son change a carburetor on \nSaturday [September 24, 2022], holding a wrench, and felt a pop – pain has \nincreased since then.”  \n Throughout his treatment, the claimant underwent two MRIs, one \nprior to the claimant’s 2022 surgery and one in November of 2022, after the \ncarburetor incident.  Dr. Theodore Hronas, a board-certified radiologist, \nreviewed these MRIs and opined that the first MRI conducted on December \n23, 2021 revealed: \n...susceptibility artifact within the \nhumeral head related to metallic \nbone anchors secondary to prior \nrotator cuff tear.  There is a small 2 \nmm region of contrast signal \ninvolving the undersurface of the \nsupraspinatus tendon \ncharacteristic of a grade II articular \nsurface tear.  The infraspinatus \nand teres minor muscles and \ntendons are normal.  There is \nabnormal contrast traversing the \nsuperior margin of the \nsubscapularis characteristic of a \nfull thickness tear creating a defect \nwithin the adjacent rotator cuff \ninterval, with contrast from the joint \nspace communicating directly with \nthe subacromial/subdeltoid bursa. \nThere is glenohumeral joint \narthritis.  The long head of the \nbiceps tendon is not seen within \nthe bicipital groove.    \n \n\nSIMS - G904931  24\n  \n \n \nDr. Hronas further noted the claimant later underwent an \narthroscopic repair of the subscapularis, a mini open biceps tenodesis, and \na humeral head chondroplasty with glenoid and labral debridement on \nMarch 10, 2022.  \n The MRI conducted on November 23, 2022, approximately three \nmonths after the carburetor incident, showed: \n...susceptibility artifact related to \nbone anchors used in repair to the \nsupraspinatus and subscapularis \ntendons.  A previously seen small \narticular surface tear of the \nsupraspinatus has resolved.  \nThere is extensive high grade \npartial articular surface tear of the \nmidsubstance of the subscapularis \ntendon with abnormal contrast \noccupying the rotator interval \ncharacteristic of complete tear of \nthe superior glenohumeral \nligament and rotator interval \ncapsule.  The coracohumeral \nligament is intact.  The \ninfraspinatus and teres minor \nmuscles and tendons are normal. \nThe long head of the biceps \ntendon is not visualized consistent \nwith tenodesis.  There is again \ncircumferential labral tearing and \ndetachment. (Emphasis added). \n \nDr. Hronas opined that the November 2022 MRI shows “findings of a \nsuccessful repair of a supraspinatus tendon,” but that it also shows “a \nprogressive high grade articular surface tear of the subscapularis tendon \n\nSIMS - G904931  25\n  \n \n \nwith a complete tear of the adjacent rotator interval capsule and likely the \nsuperior glenohumeral ligament.” These findings were not present on the \nDecember 23, 2021 MRI. \nThe weight of the credible evidence is clear:  There were new \nobjective medical findings resulting from the carburetor-repair incident in \nSeptember 2022 after the claimant had been released with light duty \nrestrictions. \nAlthough, the claimant tries to downplay this incident by claiming he \ndid not do anything but hold a wrench, it is well settled that a claimant’s \ntestimony is considered disputed as a matter of law.  Uncorroborated \ntestimony of an interested party is always considered to be controverted. \nNix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  It is \npatently clear that while the claimant denied performing any work which \nmight injury or harm his shoulder, his statements are directly contradicted \nby the weight of the evidence.  \nThere is simply no credible evidence to support the claimant’s own \nself-serving testimony that he did not sustain a new injury or aggravation \nwhile using a wrench to help his son change the carburetor when he felt a \npop and pain in his shoulder in September 2022.  \nAfter this incident, an MRI revealed “a progressive high grade \narticular surface tear of the subscapularis tendon with a complete tear of \n\nSIMS - G904931  26\n  \n \n \nthe adjacent rotator interval capsule and likely the superior glenohumeral \nligament,” which was not present in any records or on any test results prior \nto the September 2022 injury.  There is, in fact, no evidence showing that \nthese new findings are the natural and probable result of the compensable \ninjury.  These new objective findings provide clear objective medical \nevidence that this new injury is unrelated to the claimant’s 2019 on-the-job \ninjury.  \nThe weight of the credible evidence shows that the claimant \nsustained a new injury or aggravation resulting from an independent \nintervening event in September 2022 that is not causally related to his 2018 \nleft shoulder injury.  To find otherwise, in light of the clear MRI findings, \nwould require speculation and conjecture, which cannot substitute for \ncredible evidence to support a claim for benefits pursuant our Rules.  \nSmith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002). \nAccordingly, for the reasons set forth above, I respectfully dissent.  \n \n            \n                                           __________________________________ \n              MICHAEL R. MAYTON, Commissioner","textLength":39345,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G904931 PORTER SIMS, EMPLOYEE CLAIMANT BRYANT SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WCT, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 19, 2024","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["shoulder","rotator cuff","back"],"fetchedAt":"2026-05-19T22:29:45.004Z"},{"id":"full_commission-H009300-2024-09-19","awccNumber":"H009300","decisionDate":"2024-09-19","decisionYear":2024,"opinionType":"full_commission","claimantName":"Kimberly Taylor","employerName":"Hino Motors Mfg. USA, Inc","title":"TAYLOR VS. HINO MOTORS MFG. USA, INC. AWCC# H009300 September 19, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Taylor_Kimberly_H009300_20240919.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Taylor_Kimberly_H009300_20240919.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H009300  \n \nKIMBERLY TAYLOR, \nEMPLOYEE \n \nCLAIMANT \nHINO MOTORS MFG. USA, INC., \nEMPLOYER \n \nRESPONDENT \nSOMPO AMERICA INSURANCE CO., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 19, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE JASON M. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed in part, reversed in part. \n \n \n OPINION AND ORDER \nThe claimant appeals and the respondents cross-appeal an \nadministrative law judge’s opinion filed January 24, 2024.  The \nadministrative law judge found that the claimant did not prove she sustained \na compensable low back injury.  The administrative law judge found that the \nclaimant proved she was entitled to additional medical treatment provided in \nconnection with her compensable right shoulder injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant proved \nshe sustained a compensable injury to her right shoulder.  We find that the \nclaimant proved the medical treatment of record related to her right \n\nTAYLOR - H009300  2\n  \n \n \nshoulder was reasonably necessary.  The Full Commission finds that the \nclaimant did not prove she sustained a compensable low back injury.  We \nfind that the claimant did not prove she was entitled to additional temporary \ntotal disability benefits.  The respondents are not liable for fees for legal \nservices in accordance with Ark. Code Ann. §11-9-715(a)(2)(B)(ii)(Repl. \n2012).       \nI.  HISTORY \n The parties stipulated that the employee-employer-carrier \nrelationship existed on or about October 21, 2020.  Kimberly Taylor, now \nage 43, testified on direct examination: \nQ.  And where were you employed back on October 21, \n2020? \n A.  At Hino Motors. \n Q.  How long had you been there? \n A.  Three days. \n Q.  And what was your job title? \nA.  Rear-axle....Put the seals on the axle and screw down the \nbolts.... \nQ.  And did you have an incident at work on October 21, \n2020? \n A.  Yes, sir.   \n Q.  Briefly tell the judge what happened. \nA.  I was getting trained by Kadesia Wilson, and the line kept \nstopping.  And the line – the line leader came over and told \nher not to pull the call wait and stop any more, show me what \nto do when the line – when it jams.  So with that being said, \nshe showed me what to do, and that consists of pulling the \npart to unjam it so it can go down the conveyor belt.  And so \nthen she – she showed me, and then once it was my turn, I \nwent to go and do the same as I was showed, pulled the part, \nbut when I pulled the part, I pulled – my body – I was on my \n\nTAYLOR - H009300  3\n  \n \n \ntiptoes because it was jammed -  I immediately felt a pinch but \nI didn’t think anything of it.... \nQ.  And what body parts did you hurt at that time? \nA.  My lower back and my right shoulder.   \n \n According to the record, the claimant treated at Coast to Coast \nMedical on October 21, 2020 where it was reported, “States hurt lower R \nside back pulling on part.” \nA Form AR-3, PHYSICIAN’S REPORT dated October 21, 2020 \nindicated the following:  “Patient was working on the line and tried to pull an \naxel (sic) that had gotten stuck.  Felt a little pull and sting to her right upper \nback.  As she continued to work the pain became worse....Tender to \npalpation to right upper back.”  Christopher Gross, APN reported on the \nForm AR-3 that the diagnosis was “Right upper back strain.”  The claimant \ntestified that she did not return to work for the respondents following the \nspecific incident occurring October 21, 2020.     \nChristopher Gross reported on November 6, 2020, “Patient was \nworking on the line on 10/21 and tried to pull an axel (sic) that had gotten \nstuck.  Felt a little pull and sting to her right Lower back.  As she continued \nto work the pain became worse.  When she woke up on 10/22 she noticed a \npain to right shoulder also which caused decreased function of the \nshoulder.  States she has been working but the pain is worse than when the \ninjury occurred.”  Mr. Gross diagnosed “Right upper back strain.  Right \nshoulder pain, Lower back Pain.”  The claimant was treated conservatively.         \n\nTAYLOR - H009300  4\n  \n \n \nA radiologist reported on November 6, 2020: \n RIGHT SHOULDER (two views, external and internal): \nThere are no fractures or dislocations identified.  The soft \ntissues appear normal.  No destructive lesion or significant \narthritic change is identified.   \nIMPRESSION:  Normal right shoulder.   \nLUMBAR SPINE WITH OBLIQUES (four views, AP, both \nobliques, lateral):  Osteophytes are present anteriorly \ninvolving L3 through S1.  There is joint space narrowing with \nsclerosis at L5-S1.  No fracture or dislocation is identified.   \nIMPRESSION:  Mild arthritic changes involving L3 through \nS1.  No acute abnormality is identified.     \n \n The parties stipulated that the respondents paid temporary total \ndisability benefits beginning November 6, 2020.  An Occupational Therapist \nreported on December 1, 2020, “Observation:  swelling continues to R \nupper trap and R anterior deltoid.”  An MRI of the claimant’s right shoulder \nwas taken on March 23, 2021: \n  HISTORY:  Right shoulder pain.  Pulling injury 10/21/2020.... \nFINDINGS:  The AC joint is normal.  A trace of fluid and \nedema is present in the subacromial bursa compatible with \nmild bursitis.  The tendons of the rotator cuff are intact.   \nBiceps tendon is intact.  Irregularity of the mid to posterior \nportion of the superior labrum is compatible with SLAP tear.  \nThe labrum is otherwise intact. \nThere is no fracture or pathologic osseous lesion.  There is no \nsoft tissue mass.  There is no significant joint effusion.  \nOPINION:  1.  SLAP tear. \n2.  Mild subacromial bursitis.   \n \n Dr. David Brown examined the claimant on May 6, 2021: \nThis is a 40 year old female who is being seen for a chief \ncomplaint of right shoulder pain.  The pain began on 10/21/20 \nafter she pulled on a piece of equipment at work that strained \nher shoulder.  She describes a sharp, throbbing pain located \n\nTAYLOR - H009300  5\n  \n \n \ndiffusely throughout the shoulder that radiates down the arm.  \nThe pain worsens when getting dressed and with reaching \nmotions.  She also complains of swelling.... \nX-rays of the right shoulder reveal no obvious fractures.  Her \nglenohumeral joint is reduced.  She has a downsloping \nacromion.   \nThe patient continues to complain of pain over 6 months out \nfrom her injury.  She has tried physical therapy, rest, and anti-\ninflammatories.  She describes her pain as sharp.  Her \nmedical records state that she has a possible SLAP tear.  I \nwill obtain the patient’s right shoulder MRI and make further \nrecommendations....I will place her on light duty with no use \nof her right arm restriction.   \n \n Dr. Brown’s impression was “Shoulder Pain, Right.” \n The claimant followed up with Dr. Brown on May 18, 2021:  “I am \nconcerned about proceeding with surgery with the patient’s current \nstiffness.  I will give the patient a steroid injection.  I will get her started back \ninto a formal physical therapy program.  I will see her back in 4 weeks to \nsee how she is doing.  I will keep her on light duty at work for now.”  The \nclaimant testified that she underwent physical therapy recommended by Dr. \nBrown.     \n The claimant continued to follow up with Dr. Brown, who noted on \nAugust 12, 2021, “I am very hesitant to proceed with any sort of surgery \nconsidering the amount of patient’s stiffness and apprehension with range \nof motion.  She has evidence of a SLAP tear that occurred in October 2020.  \nI recommend the patient undergo an independent medical exam with an \noption to treat via a second opinion.  I will keep her on light duty at work.”  \n\nTAYLOR - H009300  6\n  \n \n \nDr. Brown’s impression was “1.  Superior Glenoid Labrum Lesion (SLAP), \nRight.” \n The claimant treated with Denise Purnell, APRN on February 7, \n2022:  “Pt comes into clinic with c/o low back pain, hip pain....Overall \nfindings low back tenderness.”  Denise Purnell assessed “Allergic rhinitis” \nand “Lumbago.”         \nDr. Charles E. Pearce noted on February 28, 2022: \nThe patient is a 40-year-old right-handed employee of Hino \nMotors who was injured the 1\nst\n day of training/work when she \nwas instructed to pull an axle off of a line.  She says she could \nnot pull the axle despite leaning over the part and as she did \nso she felt a pinch and pull in her right shoulder.  She has \nbeen on light duty restrictions since.  She was seen and \nevaluated by Dr. Davis Brown who prescribed diclofenac and \nordered an MRI scan of her shoulder.  Additionally she had a \ncortisone injection.  Prior to that visit she had had a course of \ntherapy, modification activities and anti-inflammatories.  She \nhas never had similar problems in the past.  She complains of \nneck and right shoulder pain.  MRI scan was done and by \nreport showed a SLAP tear.  Surgery apparently was \ndiscussed but there was concern that she had not gained \nmotion despite the above modalities to include the steroid \ninjection.  Dr. Brown asked for a 2\nnd\n opinion.  Currently, she is \ncomplaining of shoulder, shoulder girdle, right neck and arm \npain to about the elbow.... \nIMAGING:  X-rays ordered and interpreted by me surgical \nspine and right shoulder show no significant acute \nabnormality.  There may be slight straightening of her lordotic \ncurve.  MRI scan from March 23, 2021 is a noncontrast scan \nand shows some possible undercutting of her superior labrum \nthat was labile (sic) a slap tear.  However this can be a normal \nfinding as well.   \n \n\nTAYLOR - H009300  7\n  \n \n \n Dr. Pearce gave the following impression:  “Right shoulder, shoulder \ngirdle, arm pain and weakness not consistent with MRI finding of slap tear.”  \nDr. Pearce recommended a Functional Capacity Evaluation and stated, “2.  \nPatient can continue with light duties, anti-inflammatories in the interim \ntime.”   \n Dr. Camdin M. Gray’s assessment on March 4, 2022 included \n“Lumbago....Low back pain – referral to PT as suspect muscle spasm.  XR \nas above, will trial cyclobenzaprine.”   \n The claimant participated in a Functional Capacity Evaluation on \nApril 6, 2022:  “Ms. Taylor completed functional testing on this date with \nunreliable results.  Overall, Ms. Taylor demonstrated the ability to perform \nwork in at least the SEDENTARY classification of work[.]” \n Dr. Gray noted on April 13, 2022, “Still having low back pain, \nattending PT.  Had worsening of her back pain the other day after doing \ntraction at PT.”   \n Dr. Pearce provided an Addendum on April 18, 2022: \nThe patient completed a functional capacity evaluation on \nApril 6, 2022.  She gave an unreliable effort only meeting 27 \nof 52 consistency measures.  She was placed in a least the \nsedentary classification of work.  However this is not valid \nbecause of her unreliable effort.   \nThe patient has reached maximal medical improvement. \nThe patient can return to regular work duties without \nrestriction.   \nThere is no indication for further diagnostic testing and/or \ntreatment.   \n\nTAYLOR - H009300  8\n  \n \n \nThe patient has sustained 0% permanent partial impairment \nas it relates to her upper extremity. \nThe statements are made within a degree of medical \ncertainty.   \n \n Dr. Gray planned on April 26, 2022, “Due to intermittent urinary \nincontinence based on positionality, concern for spinal cord pathology, so \nordered MRI to assess.  Also back pain has been ongoing for 8 weeks, so \nanother clinical indication of MRI.”   \nThe parties stipulated that the respondents paid temporary total \ndisability benefits through May 12, 2022.  Dr. Gray referred the claimant to \nPain Treatment Centers of America.  The record indicates that the claimant \nreceived a Lumbar Medial Branch Block at Pain Treatment Centers of \nAmerica on October 6, 2022.   \n Dr. Ted Shields performed a “Suprascapular Nerve Block for \nshoulder pain” at Pain Treatment Centers of America on October 24, 2022.  \nThe claimant continued to occasionally follow up with Dr. Shields for various \n“nerve block” procedures.        \n A pre-hearing order was filed on July 24, 2023.  The claimant \ncontended, “The Claimant contends that she sustained injuries to her back \nand right shoulder in the course and scope of [her] employment on October \n21, 2020, when she was removing parts from a machine.  The Respondents \ninitially accepted the right shoulder as compensable and paid medical and \ntemporary total disability benefits from November 6, 2020 through January \n\nTAYLOR - H009300  9\n  \n \n \n14, 2021.  Respondents have now controverted the claim in its entirety.  \nThe Claimant was under the treatment of Christopher Gross, APN with \nCoast to Coast Medical who diagnosed the Claimant with a SLAP tear of \nthe right shoulder and low back pain with radiculopathy and he \nrecommended an MRI of the lumbar spine and a referral to an orthopedist.  \nClaimant was treating with Dr. David Brown for her shoulder.  Dr. Brown \nopined that the Claimant sustained a SLAP tear of the right shoulder.  He \nwas concerned with performing surgery due to the Claimant’s stiffness and \nhe recommended a second opinion with an option to treat and he kept the \nClaimant on light duty.  The Respondents have denied the \nrecommendations of Dr. Gross and Dr. Brown.  Claimant contends that she \nsustained compensable injuries to her back and right shoulder; she is \nentitled to the recommended MRI of the lumbar spine, physical therapy and \na repair of her right shoulder SLAP tear, payment/reimbursement of medical \nand out of pocket expenses.  All other issues are reserved.”   \n The parties stipulated that the respondents “initially accepted \nClaimant’s alleged right shoulder injury as compensable and paid medical \nand temporary total benefits pursuant thereto; but they have now \ncontroverted this claim in its entirety.”  The respondents contended, “This \nrespondent will assert the following defenses:  The claimant did not suffer a \ncompensable back injury.  Her right shoulder was accepted and all \n\nTAYLOR - H009300  10\n  \n \n \nreasonable and necessary benefits were paid.  Claimant gave an unreliable \neffort in an FCE, failed to attend Physical Therapy appointments and then \nwas released at MMI with 0% impairment by Dr. Pearce on 2/28/22.  \nRespondents have not controverted the claim in its entirety and do not owe \nattorney’s fees on previous indemnity.”   \n The parties agreed to litigate the following issues: \n1.  Whether Claimant sustained compensable injuries by \nspecific incident to her back and right shoulder. \n2.  Whether Claimant is entitled to reasonable and necessary \nmedical treatment. \n3.  Whether Claimant is entitled to additional temporary total \ndisability benefits.   \n4.  Whether Claimant is entitled to a controverted attorney’s \nfee, including a fee on all indemnity benefits previously paid in \nthis claim.  All other issues have been reserved.   \n \n An MRI of the claimant’s right shoulder was taken on September 13, \n2023 with the following impression: \n1.  Tiny low-grade interstitial partial infraspinatus tendon tear.  \nNo full-thickness rotator cuff tear.   \n2.  Anterosuperior to posterosuperior labral tear.   \n \n After a hearing, an administrative law judge filed an opinion on \nJanuary 24, 2024.  The administrative law judge found, among other things, \nthat the claimant proved she sustained a compensable injury to her right \nshoulder.  The administrative law judge awarded reasonably necessary \nmedical treatment provided in connection with the compensable right \nshoulder injury.  The administrative law judge found that the claimant did \n\nTAYLOR - H009300  11\n  \n \n \nnot prove she was entitled to additional temporary total disability benefits.  \nThe administrative law judge found that the claimant did not prove she \nsustained a compensable low back injury.  The claimant appeals to the Full \nCommission and the respondents cross-appeal. \nII.  ADJUDICATION \n A.  Compensability \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... \narising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n \n A compensable injury must be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \n\nTAYLOR - H009300  12\n  \n \n \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n 1.  Right Shoulder \n An administrative law judge found in the present matter, “6.  \nClaimant has proven by a preponderance of the evidence that she \nsustained a compensable injury to her right shoulder by specific incident.”  \nThe Full Commission finds that the claimant proved she sustained a \ncompensable injury to her right shoulder.  The parties stipulated that the \nemployment relationship existed on October 21, 2020.  The claimant \ntestified regarding her job description, “Rear-axle....Put the seals on the \naxle and screw down the bolts.”  The claimant testified that, while \nperforming employment services, she injured her lower back and right \nshoulder while pulling on an industrial part.   \n The medical evidence corroborated the claimant’s contention that \nshe injured her right shoulder on October 21, 2020.  Christopher Gross, \nAPN reported that the claimant’s right shoulder began hurting as a result of \nthe accident which occurred on October 21, 2020.  Mr. Gross’ diagnosis on \nNovember 6, 2020 included “Right shoulder pain.”  An Occupational \nTherapist treated the claimant on December 1, 2020 and observed swelling \nin the area of the claimant’s right trapezius.  “Swelling” can be an objective \nmedical finding establishing a compensable injury.  White Cnty. Med. Ctr. \n\nTAYLOR - H009300  13\n  \n \n \nLLC v. Johnson, 2022 Ark. App. 262, 646 S.W.3d 245.  In addition, an MRI \nof the claimant’s right shoulder on March 23, 2021 showed a “SLAP tear.”  \nDr. Brown diagnosed this objective finding as “1.  Superior Glenoid Labrum \nLesion (SLAP), Right.”  Dr. Brown reported that the claimant injured her \nright shoulder while performing employment services on October 21, 2020.  \nThe “SLAP tear” was confirmed in the MRI of the claimant’s right shoulder \nwhich was taken on September 13, 2023.  \n In accordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012), \nthe Full Commission finds that the claimant proved by a preponderance of \nthe evidence that she sustained a “compensable injury” to her right \nshoulder.  The claimant proved that she sustained an accidental injury \ncausing physical harm to her right shoulder.  The injury arose out of and in \nthe course of employment, required medical services, and resulted in \ndisability.  The injury was caused by a specific incident which was \nidentifiable by time and place of occurrence on October 21, 2020.  In \naddition, the claimant established a compensable injury by medical \nevidence supported by objective findings, namely the occupational \ntherapist’s observation of right shoulder swelling and the documented \n“SLAP tear” shown following the accidental injury.  The claimant proved that \nthese objective medical findings were causally related to the accidental \n\nTAYLOR - H009300  14\n  \n \n \ninjury occurring October 21, 2020 and were not the result of a prior injury or \npre-existing condition.   \n 2.  Back \n An administrative law judge found, “5.  Claimant has not proven by a \npreponderance of the evidence that she sustained a compensable injury to \nher back by specific incident.”  The Full Commission finds that the claimant \ndid not prove she sustained a compensable injury to her low back.  As we \nhave discussed, the parties stipulated that the employment relationship \nexisted on October 21, 2020.  In addition to her right shoulder, the claimant \ntestified that she injured her lower back while reaching for an industrial part.  \nThe claimant did not establish a compensable injury to her back by medical \nevidence supported by objective findings.  Christopher Gross reported on \nOctober 21, 2020 that the claimant was “Tender to palpation to right upper \nback.”  “Tenderness” is not an objective medical finding establishing a \ncompensable injury.  Rodriguez v. M. McDaniel Co., Inc., 98 Ark. App. 138, \n252 S.W.3d 146.   An x-ray of the claimant’s back was taken on November \n6, 2020 with the impression, “Mild arthritic changes involving L3 through S1.  \nNo acute abnormality is identified.”  The evidence does not demonstrate \nthat the “mild arthritic changes” described in the November 6, 2020 x-ray \nwere causally related to the October 21, 2020 accident, and these arthritic \nchanges cannot be interpreted as objective findings establishing a \n\nTAYLOR - H009300  15\n  \n \n \ncompensable injury.  There is no probative evidence before the \nCommission demonstrating that the claimant established a compensable \ninjury to her back by medical evidence supported by objective findings.  Nor \nis there any credible evidence demonstrating that the claimant suffered \nfrom “muscle spasm” in her low back as a result of the October 21, 2020 \nincident in which the claimant sustained a compensable injury to her right \nshoulder.   \n Pursuant to Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012), the Full \nCommission finds that the claimant did not prove by a preponderance of the \nevidence that the sustained a “compensable injury” to her low back.  The \nclaimant did not prove that she sustained an accidental injury causing \ninternal or external physical harm to her back.  The claimant did not prove \nthat she sustained an injury to her low back which arose out of and in the \ncourse of employment, required medical services, or resulted in disability.  \nThe claimant did not prove that she sustained an injury to her low back as \nthe result of a specific incident identifiable by time and place of occurrence \non or about October 21, 2020.  Finally, the claimant did not establish a \ncompensable injury to her low back by medical evidence supported by \nobjective findings.   \n B.  Temporary Disability \n\nTAYLOR - H009300  16\n  \n \n \n Temporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \nHwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing \nperiod” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \ncontinues until the employee is as far restored as the permanent character \nof her injury will permit, and if the underlying condition causing the disability \nhas become stable and nothing further in the way of treatment will improve \nthat condition, the healing period has ended.  Harvest Foods v. Washam, \n52 Ark. App. 72, 914 S.W.2d 776 (1996).  The determination of when the \nhealing period has ended is a question of fact for the Commission.  Carroll \nGen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996).   \n An administrative law judge found in the present matter, “9.  \nClaimant has not proven by a preponderance of the evidence that she is \nentitled to additional temporary total disability benefits.”  The Full \nCommission affirms this finding.  The claimant proved by a preponderance \nof the evidence that she sustained a compensable right shoulder injury on \nOctober 21, 2020.  The claimant did not prove that she sustained a \ncompensable low back injury on that date.  The claimant testified that she \ndid not return to work for the respondents following the compensable injury.  \nThe respondents paid temporary total disability benefits beginning \n\nTAYLOR - H009300  17\n  \n \n \nNovember 6, 2020.  As we have discussed, an MRI of the claimant’s right \nshoulder on March 23, 2021 showed a “1.  SLAP tear.”  The claimant \nreceived conservative medical treatment.   \n Dr. Pearce examined the claimant on February 28, 2022 and \nrecommended a Functional Capacity Evaluation.  The claimant participated \nin a Functional Capacity Evaluation on April 6, 2022.  It was concluded that \nthe claimant performed during the Functional Capacity Evaluation “with \nunreliable results,” and the claimant was returned to Sedentary work.  Dr. \nPearce reported on April 18, 2022:  “The patient has reached maximal \nmedical improvement.  The patient can return to regular work duties without \nrestriction....The patient has sustained 0% permanent partial impairment as \nit relates to her upper extremity.”  The parties stipulated that the \nrespondents continued to pay temporary total disability benefits through \nMay 12, 2022.  The claimant’s testimony indicated that she subsequently \nreturned to work for another employer for a brief time.   \n Based on the current record before us, the Full Commission finds \nthat the claimant did not prove she was entitled to additional temporary total \ndisability benefits after May 12, 2022.  It is within the Commission’s \nprovince to weigh all of the medical evidence and to determine what is most \ncredible.  Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 \n(1999).  The Full Commission finds in the present matter that Dr. Pearce’s \n\nTAYLOR - H009300  18\n  \n \n \nopinion is credible, is corroborated by the record, and is entitled to \nsignificant evidentiary weight.  We find that the claimant reached the end of \na healing period for her October 21, 2020 compensable right shoulder injury \nno later than April 18, 2022.  Dr. Pearce opined on April 18, 2022 that the \nclaimant had reached maximal medical improvement and could return to \nregular work duties without restriction.  There are no credible medical \nopinions of record contradicting Dr. Pearce’s opinion.  Temporary total \ndisability benefits cannot be awarded after the healing period has ended.  \nElk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 S.W.2d 661 (1987).  \nPersistent pain does not extend a claimant’s healing period, provided that \nthe underlying condition has stabilized.  Mad Butcher, Inc. v. Parker, 4 Ark. \nApp. 124, 628 S.W.2d 582 (1982).  The Full Commission finds in the \npresent matter that the claimant’s condition stabilized no later than April 18, \n2022, the date Dr. Pearce opined that the claimant had reached maximal \nmedical improvement and could return to unrestricted work. \n C.  Medical Treatment \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \n\nTAYLOR - H009300  19\n  \n \n \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  What \nconstitutes reasonably necessary medical treatment is a question of fact.  \nWright Contracting Co. v. Randall, 12 Ark. App. 358, 676 S.W.2d 750 \n(1984).   \n An administrative law judge found in the present matter, “8.  \nClaimant has proven by a preponderance of the evidence that she is \nentitled to reasonable and necessary medical treatment of her \ncompensable right shoulder injury.  Moreover, she has proven by a \npreponderance of the evidence that all of her treatment that is in evidence \nwas reasonable and necessary.”  The Full Commission finds that the \nmedical treatment of record related to the claimant’s right shoulder was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).   \n The Full Commission has found that the claimant proved she \nsustained a compensable right shoulder injury on October 21, 2020.  The \nclaimant did not prove that she sustained a compensable low back injury.  \nWe find that the medical treatment of record related to the claimant’s right \nshoulder on and after October 21, 2020 was reasonably necessary.  Said \nreasonably necessary medical treatment includes the treatment of record \nprovided by Dr. Brown.  Dr. Brown eventually recommended an \nIndependent Medical Evaluation and second opinion.  On April 18, 2022, \n\nTAYLOR - H009300  20\n  \n \n \nDr. Pearce opined that the claimant had reached maximum medical \nimprovement and he stated, “There is no indication for further diagnostic \ntesting and/or treatment.”   \n The record therefore shows, as we have found supra, that the \nclaimant reached the end of a healing period related to her compensable \nright shoulder injury no later than April 18, 2022 as opined by Dr. Pearce.  \nHowever, it is well-settled that a claimant may be entitled to ongoing \nmedical treatment after the healing period has ended, if the medical \ntreatment is geared toward management of the claimant’s compensable \ninjury.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 \n(2004).  The Full Commission finds that the “Nerve Block for shoulder pain” \nadministered by Dr. Shields on October 24, 2022 was geared toward \nmanagement of the claimant’s injury and was reasonably necessary.  The \nclaimant did not prove that any treatment related to her low back was \nreasonably necessary, including treatment provided by Denise Purnell \nbeginning February 7, 2022 and following.    \n D.  Fees for legal services \n Ark. Code Ann. §11-9-715(Repl. 2012) provides, in pertinent part: \n(a)(1)(A)  Fees for legal services rendered in respect of a \nclaim shall not be valid unless approved by the Workers’ \nCompensation Commission.   \n(B)  Attorney’s fees shall be twenty-five percent (25%) of \ncompensation for indemnity benefits payable to the injured \nemployee or dependents of a deceased employee.... \n\nTAYLOR - H009300  21\n  \n \n \n(2)(B)(ii)  The fees shall be allowed only on the amount of \ncompensation for indemnity benefits controverted and \nawarded.   \n \n An administrative law judge found in the present matter, “10.  \nClaimant has proven by a preponderance of the evidence that her counsel \nis entitled to a controverted attorney’s fee on the indemnity benefits \npreviously paid under this claim, pursuant to Stipulation No. 3 and Ark. \nCode Ann. §11-9-715(Repl. 2012).”  The Full Commission does not affirm \nthis finding.   \n The parties stipulated that the employment relationship existed on \nOctober 21, 2020, on which date the claimant sustained a compensable \ninjury to her right shoulder.  The parties stipulated that the respondents paid \ntemporary total disability benefits beginning November 6, 2020 and \ncontinuing through May 12, 2022.  A pre-hearing order was filed on July 24, \n2023.  The claimant contended, among other things, that she sustained \ninjuries in the course and scope of her employment.  The parties stipulated, \n“3.  Respondents initially accepted Claimant’s alleged right shoulder injury \nas compensable and paid medical and temporary total disability benefits \npursuant thereto; but they have now controverted this claim in its entirety.”  \nYet the respondents also contended in part, “Respondents have not \ncontroverted the claim in its entirety and do not owe attorney’s fees on \nprevious indemnity.”   \n\nTAYLOR - H009300  22\n  \n \n \n A hearing was held on October 27, 2023.  At that time, the \nrespondents stated that they initially accepted compensability of the \nclaimant’s right shoulder injury and had paid temporary total disability \nbenefits until the claimant reached maximum medical improvement.  The \nrespondents stated that they had not controverted the claim in its entirety.  \nThe administrative law judge denied the respondents’ proposition to modify \nthe agreed stipulation.  It is well-settled that a stipulation is an agreement \nbetween attorneys respecting the conduct of the legal proceedings.  \nDinwiddie v. Syler, 230 Ark. 405, 323 S.W.2d 548 (1959).  The Commission \nhas the discretion to allow a party to withdraw a stipulation.  Jackson v. \nCircle T Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995).  Since the \nrespondents in the present matter initially provided medical treatment and \npaid temporary total disability benefits, the Full Commission finds that the \nrespondents should be allowed to withdraw the earlier stipulation that they \ncontroverted the claim its entirety.   \n Moreover, a fee is payable from the employer or carrier only if \nbenefits are controverted and awarded.  Eldridge v. Pace Indus., LLC, 2021 \nArk. App. 245, 625 S.W.3d 734, citing Burton v. Chartis Claims, Inc., 2014 \nArk. App. 47.  See also Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445.  A maxim of workers’ compensation law is that when the \nCommission finds that a case has been controverted, in whole or in part, \n\nTAYLOR - H009300  23\n  \n \n \nthe Commission shall direct the payment of legal fees by the employer or \ncarrier in addition to the compensation awarded.  Ark. Code Ann. §11-9-\n715(a)(2)(B)(ii)(Repl. 2012; Harvest Foods v. Washam, 52 Ark. App. 72, \n914 S.W.2d 776 (1996).  One of the purposes of the statute and case law is \nto put the economic burden of litigation on the party that makes litigation \nnecessary by controverting the claim.  Id, citing Prier Brass v. Weller, 23 \nArk. App. 193, 745 S.W.2d 647 (1988).  In the present matter, litigation was \nnot necessary in order for the claimant to receive temporary total disability \nbenefits voluntarily paid by the respondents beginning November 6, 2020 \nand continuing through May 12, 2022.  In the subsequent pre-hearing order \nfiled July 24, 2023, the claimant did not contend that she was entitled to an \naward of this period of temporary total disability benefits.  Nor did the \nadministrative law judge award this period of temporary total disability \nbenefits or any other period.  We find that the claimant’s attorney is not \nentitled to fees for legal services in accordance with Ark. Code Ann. §11-9-\n715(a)((2)(B)(ii)(Repl. 2012).   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she sustained a compensable injury to her right \nshoulder.  We find that the claimant proved the medical treatment related to \nher right shoulder was reasonably necessary in accordance with Ark. Code \nAnn. §11-9-508(a)(Repl. 2012).  There are currently no recommendations \n\nTAYLOR - H009300  24\n  \n \n \nof additional treatment related to the claimant’s compensable right shoulder \ninjury.  The Full Commission finds that the claimant did not prove she \nsustained a compensable low back injury.  Based on the current record, we \nfind that the claimant did not prove she was entitled to additional temporary \ntotal disability benefits.  The respondents are not liable for fees for legal \nservices in accordance with Ark. Code Ann. §11-9-715(a)(2)(B)(ii)(Repl. \n2012).  However, for prevailing in part on appeal, the claimant’s attorney is \nentitled to a fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b)(Repl. 2012). \n IT IS SO ORDERED.       \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved the medical treatment of record related to her right \nshoulder was reasonably necessary. \nArk. Code Ann. § 11-9-508(a) (Repl. 2012) requires an employer to \nprovide an employee with medical and surgical treatment \"as may be \n\nTAYLOR - H009300  25\n  \n \n \nreasonably necessary in connection with the injury received by the \nemployee.\" The claimant has the burden of proving by a preponderance of \nthe evidence that the additional treatment is reasonable and necessary. \nNichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013). \nIt is within the Commission's province to weigh all the medical \nevidence to determine what is most credible and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness.  Id.  However, \nthe Commission has the authority to accept or reject medical opinions. \nWilliams v. Ark Dept. of Community Corrections, 2016 Ark. App. 427, 502 \nS.W. 3d 530 (2016).  Furthermore, it is the Commission's duty to use its \nexperience and expertise in translating the testimony of medical experts \n\nTAYLOR - H009300  26\n  \n \n \ninto findings of fact and to draw inferences when testimony is open to more \nthan a single interpretation.  Id. \nAlthough the claimant admittedly injured her right shoulder on \nOctober 21, 2020, she was released at MMI by Dr. Charles Pearce on April \n18, 2022, after demonstrating an unreliable effort during her functional \ncapacity evaluation.  He released her to return to work at full duty with no \nimpairment, stating unequivocally: \nThe patient completed a functional \ncapacity evaluation on April 6, \n2022.  She gave an unreliable \neffort only meeting 27 of 52 \nconsistency measures. She was \nplaced in at least the sedentary \nclassification of work. However, \nthis is not valid because of her \nunreliable effort. \n \nThe patient has reached maximum \nmedical improvement \n \nThe patient can return to regular \nwork duties without restriction \n \nThere is no indication for further \ndiagnostic testing and/or treatment \n \nThe patient has sustained 0% \npermanent partial impairment as it \npertains to her upper extremity. \n \nAlthough the claimant underwent an MRI on September 13, 2023, \nthis took place nearly a year and a half after reaching MMI.  The report from \nDr. Ezekiel Shotts reflected a “[t]iny” low-grade partial interstitial \n\nTAYLOR - H009300  27\n  \n \n \ninfraspinatus tear.  Based on this finding, Dr. Shields recommended an \northopedic consult with no indication the MRI findings were the cause of the \nclaimant’s complaints of pain in her shoulder and with no course of \ntreatment.  In fact, he gave no reasoning as to how this referral is causally \nrelated to the claimant’s 2020 injury. \nDr. Shields did not offer an opinion as to whether the right shoulder \ntear was a result of the claimant’s 2020 injury or whether there was a later, \nintervening injury after the claimant reached MMI.  There is no way to \ndetermine the source of this tear which was not discovered until nearly a \nyear and a half after the claimant reached MMI and nearly three years after \nthe accident in question.   \nDr. Shotts and Dr. Shields provided no unequivocal statements that \nthe claimant’s right shoulder tear, which was discovered nearly three years \nafter the claimant’s initial injury, was the source of her alleged pain. \nHowever, Dr. Pearce was firm in his statement that the claimant did not \nrequire any further diagnostic treatment and had reached maximum medical \nimprovement as of April 18, 2022.  As a result, the claimant is not entitled to \nadditional medical treatment for her right shoulder injury.  \nAccordingly, for the reasons set forth above, I respectfully dissent.  \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":40396,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H009300 KIMBERLY TAYLOR, EMPLOYEE CLAIMANT HINO MOTORS MFG. USA, INC., EMPLOYER RESPONDENT SOMPO AMERICA INSURANCE CO., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 19, 2024","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["back","shoulder","strain","lumbar","fracture","rotator cuff","hip","neck"],"fetchedAt":"2026-05-19T22:29:45.054Z"},{"id":"full_commission-H006753-2024-09-18","awccNumber":"H006753","decisionDate":"2024-09-18","decisionYear":2024,"opinionType":"full_commission","claimantName":"Jacob Shotzman","employerName":"Wilbert Funeral Services, Inc","title":"SHOTZMAN VS. WILBERT FUNERAL SERVICES, INC. AWCC# H006753 September 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Shotzman_Jacob_H006753_20240918.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Shotzman_Jacob_H006753_20240918.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n CLAIM NO. H006753 \n \nJACOB M. SHOTZMAN, EMPLOYEE  CLAIMANT \n \n \nWILBERT FUNERAL SERVICES, INC., EMPLOYER                   RESPONDENT \n \n \nSAFETY NATIONAL CASUALTY CORPORATION/ \nGALLAGHER BASSETT SERVICES, INC., CARRIER/TPA RESPONDENT \n \n \n ORDER FILED SEPTEMBER 18, 2024 \n \nUpon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas. \n \n \nClaimant represented by the HONORABLE MICHAEL L. ELLIG, Attorney at Law, Fort \nSmith, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney at Law, \nLittle Rock, Arkansas. \n \n ORDER \n \nPresently before the Commission is respondent’s Motion to Dismiss \nAppeal to the Full Commission.   \nOn August 9, 2024, respondents filed a Notice of Appeal of the \nadministrative law judge’s Opinion filed July 11, 2024. On August 30, 2024, respondents \nfiled a Motion to Dismiss Appeal stating respondents are authorizing the surgery \nrecommended by Dr. Blankenship awarded by the administrative law judge. \nAfter consideration of respondents’ motion and all other matters properly \nbefore the Commission, we find that respondents’ motion should be granted, and the file \nbe returned to the Commission’s general files. \nAccordingly, respondents’ appeal to the Full Commission is hereby \n\nShotzman-H006753 2 \n \n \ndismissed.  \nIT IS SO ORDERED. \n \n \n                                          \nSCOTTY DALE DOUTHIT, Chairman \n \n \n                                          \nM. SCOTT WILLHITE, Commissioner \n \n \n                                          \nMICHAEL R. MAYTON, Commissioner","textLength":1605,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H006753 JACOB M. SHOTZMAN, EMPLOYEE CLAIMANT WILBERT FUNERAL SERVICES, INC., EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY CORPORATION/ GALLAGHER BASSETT SERVICES, INC., CARRIER/TPA RESPONDENT ORDER FILED SEPTEMBER 18, 2024 Upon review before the FULL COMMIS...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.959Z"},{"id":"full_commission-H303954-2024-09-18","awccNumber":"H303954","decisionDate":"2024-09-18","decisionYear":2024,"opinionType":"full_commission","claimantName":"Myia Woods","employerName":"City Of Little Rock","title":"WOODS VS. CITY OF LITTLE ROCK AWCC# H303954 September 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Woods_Myia_H303954_20240918.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Woods_Myia_H303954_20240918.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H303954 \n \nMYIA M. WOODS, EMPLOYEE    CLAIMANT \n \nCITY OF LITTLE ROCK, EMPLOYER                                   RESPONDENT \n \nCADENCE INSURANCE COMPANY/RISK \nMANAGEMENT SERVICES, CARRIER/TPA                        RESPONDENT \n \nOPINION FILED SEPTEMBER 18, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed June 25, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The AWCC has jurisdiction over this claim.  \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the \nevidence that she is entitled to TTD benefits for any \nperiod.  \n \n\nWoods-H303954    2 \n  \n \n4. Absent an award of benefits, the claimant is not entitled \nto attorney’s fees. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the June 25, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite concurs. \n \nCONCURRING OPINION \n After my de novo review of the entire record, I concur with the \nmajority opinion finding that the Claimant failed to prove by a \npreponderance of the evidence that she is entitled to temporary total \n\nWoods-H303954    3 \n  \n \ndisability benefits for any period. I write separately for the benefit of the \nClaimant.  \n While Claimant did sustain a compensable injury to her left knee and \nlower back, there does not appear to be sufficient evidence in the record \nthat Claimant has met her burden of proof to establish entitlement to \ntemporary total disability under Ark. Code Ann. § 11-9-521(a) or Ark. State \nHwy. Dept v. Breshears, 272 Ark. 244, 613S.W.2d 392 (1981).  There is \nonly equivocal evidence in the record that Claimant’s physician restricted \nher ability to work because of her compensable injuries after April 15, 2022. \nClaimant continued to work for Respondent until July 13, 2023, well after \nher medical release for her injuries on April 15, 2022. Nor does any \nphysician opine that Claimant’s lumbosacral spondylosis is related to her \ncompensable lower back injury.  While Dr. Suarez does say that the \nClaimant “should remain out of work,” this letter does not relay any details \nwhich were considered in arriving at this conclusion. Thus, I cannot say that \nthe evidence in the record is sufficient to entitle Claimant to temporary total \ndisability benefits for any period.  \nFor the foregoing reason, I concur with the majority opinion. \n \n                                                           ______________________________                                                             \n                                                            M. SCOTT WILLHITE, Commissioner","textLength":3867,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H303954 MYIA M. WOODS, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, EMPLOYER RESPONDENT CADENCE INSURANCE COMPANY/RISK MANAGEMENT SERVICES, CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 18, 2024 Upon review before the FULL COMMISSI...","outcome":"denied","outcomeKeywords":["affirmed:2","granted:2","denied:3"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T22:29:44.965Z"},{"id":"alj-H306528-2024-09-18","awccNumber":"H306528","decisionDate":"2024-09-18","decisionYear":2024,"opinionType":"alj","claimantName":"Malak Hussian","employerName":"Beauty Sensations","title":"HUSSIAN VS. BEAUTY SENSATIONS AWCC# H306528 September 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HUSSIAN_MALAK_H306528_20240918.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HUSSIAN_MALAK_H306528_20240918.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H306528 \n \nMALAK HUSSIAN, EMPLOYEE      CLAIMANT \nVS. \nBEAUTY SENSATIONS, EMPLOYER     RESPONDENT \n \nOPINION FILED SEPTEMBER 18, 2024 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 13th day of \nAugust 2024, in Little Rock, Arkansas. \n \nClaimant is Pro Se. \nRespondent, who was uninsured at the time of the claimed work-related incident was \nrepresented by Randy Murphy, Attorney at Law, Little Rock, Arkansas. \n \n \nSTATEMENT OF THE CASE \n A  hearing  was  conducted  on  the 13\nth\n day  of August 2024. At  the  time  of  the \nhearing, the primary issue before the Commission was whether the claimant suffered a \ncompensable work-related injury to her left shoulder and lower back and if the injury was \ndetermined to be work related, the issue of reasonable and necessary medical treatment.  \nThe claimant was also asking for temporary total disability. \n The respondent  contended that the  claimant  did  not  sustain  an  injury  within  the \ncourse  and  scope  of  her  employment  at  Beauty  Sensations. The  respondent  further \ncontended that a settlement was reached prior to obtaining representation by an attorney \nand the claimant had been paid an amount of money for a release. The claimant contends \nthat she had been injured on August 23, 2023, while stocking on a lower shelf and became \ndizzy when she stood up due to the extremely hot environment that she was required to \n\n2 \n \nwork in, which caused dizziness that resulted in a fall that injured her left shoulder and \nlower back.  \n A Prehearing Order dated June 25, 2024, provided that the parties stipulated that \nthe  Arkansas Workers’ Compensation Commission had jurisdiction  of  the  within  claim, \nand  that  an  employer/employee  relationship  existed  on  or  about  August  23,  2023, the \ndate the  claimant  contends  she  suffered  a  work-related  injury  to  her  left  shoulder  and \nlower back.         \n The Prehearing Order along with the claimant’s and respondent’s contentions were \nall set out in their respective responses to the Pre-hearing Questionnaire and made a part \nof the record without objection. The claimant, Ms. Malak Hussian, was the sole witness \non  behalf  of  the  claimant. Mr. Yongjin Song  was  the  sole  witness  on  behalf  of  the \nrespondent. From a review of the record as a whole, to include matters properly before \nthe Commission and having had an opportunity to observe the testimony and demeanor \nof  the  witnesses,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That the claimant has failed to satisfy the required burden of proof to show \nthat she sustained a compensable injury to her left shoulder and lower back \non August 23, 2023. \n3. That consequently, all other issues are moot. \n\n3 \n \n4. If not already paid, the respondents are ordered to pay for the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The  Pre-hearing  Order  along  with  the  Pre-hearing  questionnaires of the parties \nand respondents exhibit are made part of the record without objection.  \n The  claimant  testified  that she initially went  to  Beauty  Sensations,  not  for  the \npurpose of looking for a job, but to buy merchandise.  As she was checking out, she saw \na sign that stated they were hiring and she then inquired about employment, talking to a \ngentleman named Sam.  She was later contacted by Mr. Yongjim Song.  She was offered \nthe job and trained by Sam.  She “would hand merchandise up” and Sam explained that \ntheir customers were looking  for  hair sold as  a  product placed  into various categories.   \nShe was then instructed to stock a lower shelf, and she went over and “bent down and \nstocked the lowest shelf in alignment with the sunset setting on his business.”  She felt \nthat it was already hot where she was stocking and one of the workers had her own fan.  \nThe next thing that the claimant apparently knew was that she woke up on the floor and \nshe asked if she fell.  She was told “No, Malak, you fainted.”  (Tr. 15, 16) The claimant \nthen  talked  about  accommodation’s required  by the  America  with  Disabilities  Act  and \nstated that she felt she was entitled to them, which was no different than if she had cancer.  \nShe also stated that she was unable to obtain an attorney due to the fact her employer \nfailed to carry workers’ compensation insurance at the time of her fall. She was offered \n$1500.00  by  Mr.  Youngjim Song, which  she did  in  fact receive,  and  she  was  already \nbehind on her bills at the time of the receipt. She went on to testify that she was currently \nwearing a back brace and had to have some stability to even bend down. She did have \n\n4 \n \nhealth insurance and was 63 years old at the time of the hearing.  She also admitted that \nshe was on various medications prior to her injury while working for the respondent, but \nnot to the degree that she was now. She also admitted that she was currently drawing \nsocial security disability. (Tr. 17 – 22) \n Under cross examination, the claimant responded that she had about 24 hours of \ncollege at UALR and was attending Shorter College last year. She had stopped working \n33 years ago after four people invaded her home and blew her children’s brains out and \nshe stopped working due to trauma. Her last job before working for the respondent, was \nabout  25  years  ago, when  she  worked for  the  UAMS  Academic  Affairs  Department  in \n1998. She also admitted  receiving  active  medical  treatment  during  that  period  for  her \ndepression and mental issues. She testified there was a five-year period after the death \nof  her  children where she  could not remember  anything.  (Tr.  23 – 25) She  had  been \ntreated for post traumatic stress disorder off and on for a number of hears after the death \nof her children.  She also admitted to treatment for pain, and that she had been involved \nin a motor vehicle accident back in 2023, when her neighbor rear ended her, resulting in \nback and neck issues, and where she received an injection in her neck.  She also admitted \nthat  she  had  not  worked  for  an  income  since  her  claimed  work-related  injury  but  had \nperformed   volunteer   work   for   Watershed.      She   also   admitted   to   submitting   job \napplications for work but had not applied for any in the last few months.  She also admitted \nto  a  past  right  shoulder  surgery,  which  was  the  result  of  a  rotator  cuff  tear  in  2019.  \nAdditionally, she admitted to a lower back surgery between her L4 and L5 by Dr. David \nBumpass, but stated she was no longer being treated for this. (Tr. 26 – 28)  She was also \nreceiving  psychiatric  treatment  by  Dr.  Raymond  Molden,  with  the  last  visit  being  about \n\n5 \n \nSeptember 18, 2023, seeing Dr. Moulden on a regular basis for the purpose of medication \nrefills  due  to  the  post  traumatic  stress  disorder.  (Tr.  29)    The  claimant  admitted  taking \nPrazosin and Diazepam since the traumatic event involving her children. (Tr.30) \n The  claimant  was also  questioned about the  medical  records  providing  that  she \nstarted having pain in her neck and back as far back as 2010, and she responded that \nshe was not certain as to the date. (Tr. 31, 32)  The claimant was also questioned about \nher “chronic back pain” and she responded “well, if you’re mentioning 2010 to 2023, that \nis considered in the dictionary as chronic.”  She did not know how long she suffered from \nspinal stenosis. (Tr. 33) \n The claimant also admitted to an acute myocardial infarction, and congestive heart \nfailure, along with a trauma-induced grand mal seizure. Her rotator cuff tear was due to a \nseizure resulting from substance abuse. (Tr. 35) \n In regard to settling her claim, the claimant stated that Mr. Song had called her.  \nShe stated she knew that he was in trouble and that he attempted to resolve it with the \n$1500.00.  She went on to state that it was not a settlement but that she was accepting \nassistance in regard to her bills. (Tr. 37, 38) \n In  regard  to  the  actual  incident,  the  claimant  stated  she  remembered  squatting \ndown and placing items on the lower shelf and when she stood up, she became dizzy \nand that’s when Mr. Sam told her that she had fainted.  She remembered hitting her \nbuttocks  when  she  fell.    She  went  on  to  state  that  she  was  asked  to  sit  down  for  15 \nminutes, stayed until her shift was over, drove herself home, and felt that MEMS should \nhave  been  called.    She  also  stated  that  she  did  not  have  the  mind  to  request  medical \ntreatment.   She returned to work the next day. (Tr. 43 - 45) \n\n6 \n \nThe  claimant  stated  that  she  had  injured  her  spine  in  the  fall,  her  shoulder  and  lower \nlumbar. (Tr. 53) \n The  claimant  was  then  allowed  to  testify  on  what  would  amount  to  direct.    She \ntalked about the cowardice of so-called men and businessmen “trying to make my getting \nhelp a problem.”  She also talked about the horrible traumatic incident involving her \nchildren. (Tr. 55, 56)  She went on to state that she was being trained on what to do with \neach type of hair and the various categories the hair would be placed in.  She was handing \nSam hair samples and knickknack items when she became dizzy after standing up.  She \nhad never previously fainted. (Tr. 57) \n On  recross,  the  claimant  was  asked about  the  video  she  viewed  in the hearing, \nand she responded that it had been “finagled with, because I bent down to the lower shelf \nand stocked merchandise on my knees.” (Tr. 60, 61)    \n The claimant called no additional witness.  Mr. Yougjin Song, the owner of Beauty \nSensations then testified.  He stated that he was a resident of Little Rock and a native of \nSouth Korea, who previously had worked at UALR as an assistant professor in the speech \ndepartment.  He admitted not having workers’ compensation insurance in the past but \nhad obtained it due to having several employees.  He stated he was not aware of the fact \nthat workers’ compensation was required by the state of Arkansas. (Tr. 64 – 66)   He \nadmitted hiring the claimant and stated the claimant could only work 25 hours a week. \n(Tr. 69)  He also admitted the claimant was injured on her second day of work, and that \nhe was not present at the time of the accident.  He also testified that the air conditioning \nwas automatically set at 75 degrees.  After the claimant’s injury, he was told by Sam that \nshe stayed for several more hours and then went home.  She returned to work the next \n\n7 \n \nday.   He  went  on  to  state  that  she  told him that  she  had  forgotten  to  take  her  blood \npressure medicine.  Additionally, it was over 100 degrees outside and was too cold inside \nor whatever.  (Tr. 70 – 72)  He terminated her employment because he thought that the \n“environment would be too harsh for her.  She would not be fit to work in the retail business \nbecause, you know, it’s - - it would be difficult.”  He also admitted that he had entered into \nan agreement with the claimant where he would pay her $1500.00.  He had taken a “legal \nsample form” and prepared the affidavit for the payment of the money. (Tr. 73, 74) \n Under  cross  examination,  Mr.  Song  admitted  that  he  had  been  in  business  for \nabout 18 years.  (Tr. 78) \n In regard to documents entered into the record, medical records from Proper Pain \nSolutions were admitted as a joint admission.  The reports are in reverse chronological \norder.  A report dated March 28, 2024, provided that the claimant presented with right hip \nand knee pain.  The pain started in 2010.  “The onset of her pain was not associated with \nan incident.”  “She experiences pain all of the time.”  There was an assessment of low \nback  pain,  spondylosis  with  radiculopathy,  lumbar,  post  laminectomy,  cervicalgia  and \nmyalgia, along with right and left knee pain.  The claimant had been seen previously at \nProper Pain Solutions on February 29, 2024, and also February 1, 2024.  The February \n1, 2024, report from Proper Pain Solutions provided there had been an 85% improvement \nof the claimant’s low back pain and that the pain had started in 2010.  Additionally, the \nreport provided that the claimant had an altercation with a family member on January 30, \n2024.  Additionally, the report also provided that the pain started in 2010, and no initiating \nincident was noted.   \n\n8 \n \nThe claimant had also presented to Proper Pain Solutions on December 28, 2023, \nwith  similar  findings,  but  had  received  a  knee  injection on  that  date.  The  claimant  had \npreviously  presented  to  Proper  Pain  Solutions  on  November  27,  2023,  and  this  report \nprovided the claimant had presented with increased neck pain on the left side.  Again, the \nreport provided there was not an initiating incident.  The claimant had also presented to \nProper Pain Solutions on November 2, 2023, with the report providing for increased knee \npain, with the report again providing that the pain started in 2010.  The claimant previously \nhad presented  to  Proper  Pain  Solutions  on  August  31,  2023.    This  report  provided  for \nincreased pain in the neck and left shoulder.  Again, the report provided for no initiating \nincident.  The report mentioned that the claimant fell at work about a week earlier and \nhad bruised her right and left arm and had a lot of pain in the left shoulder.  A MRI was \ndiscussed. (Jt. Ex. 1, P. 1 – 32) \nDr.  Senthill  K.  Raghavan reported  on September  14,  2023,  that  the  claimant \nwanted  to  discuss  an  injury  to  the  left  shoulder  that  occurred from a  fall  at  work  after \nfainting.  The claimant stated she could not raise her left arm or turn her neck to the right. \n(Jt. Ex. 1, P. 33 – 37) \nA report from the UAMS Orthopedic Spine Clinic dated October 27, 2023, provided \nthat  the  claimant  had  presented  today  for  a  follow-up  after  a  L4-L5  robotic  TLIF  on \nJanuary  26,  2022.    The  claimant  had  stated  per  the  report  that  her  pain  had  initially \nworsened following her fall but that it now was settled some. (Jt. Ex. 1, P. 38 - 40) \nThe claimant had presented to Dr. Senthill K. Raghavan on November 11, 2022.  \nThis report  provided  for  chronic  post-traumatic  stress  syndrome  with  congestive  heart \nfailure, along with intervertebral disc degeneration. (Jt. Ex. 1, P. 41 – 45) \n\n9 \n \nA  report  from  the  Arkansas  Psychiatric  Clinic  on  or  about  September  18,  2023, \nprovided that the claimant was suffering from anxiety and PTSD. (Jt. Ex.1 A) \nA letter to the Commission dated May 29, 2024, requesting a subpoena be issued \nfor the work video footage of August 23, 2023, involving the fall by the claimant. (Jt. Ex. \n2)  \nThe affidavit that was discussed in the testimony which provided for the payment \nof $1500.00 to the claimant was admitted into the record. (Resp. Ex. 1)  A letter signed \nby  the  claimant  and  addressed  to  who  it  may  concern  provided  that  the  claimant  had \nwithdrawn her Workers’ Compensation Claim against Beauty Sensations. (Resp. Ex. 2)  \nA letter that provided the work history of the claimant  was also admitted into the record. \n(Resp. Ex. 3) \nAdditionally, a proffered exhibit from the claimant which was something akin to a \npromotional document was proffered which provided for what would be assumed to be \nsome type of possible treatment modality.  This exhibit was not found to be admissible.  \n(Clamant Proffer 1) Finally, a short video was viewed which provided that the claimant \nstood up  and  then  slumped  down  and  this  video  corresponded  with  testimony that  the \nclaimant had fainted or suffered from Syncope.   \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn the present matter, the claimant testified that after stocking product while squatted or on her knees, \nshe fainted after standing up, due to the high temperatures of the work environment, and the fall resulted \nin  an  injury  to  her  left  shoulder  and  lower  back.  In  addition,  there  was  testimony  that  the  claimant \nreceived $1500.00 from the respondent for a settlement involving her workers’ compensation \nclaim after signing an affidavit of settlement.   \n\n10 \n \nIn  regard  to the  proposed settlement,  A.C.A.  11-9-108 provides that “no agreement to \nwaive his or her right to compensation shall be valid, and no contract, regulation, or device \nwhatsoever shall operate to relieve the employer or carrier in whole or in part, from any \nliability created by this chapter ......  Consequently, the affidavit does not allow the \nrespondent to enter into a so-called settlement and does not control the outcome of this \nmatter.   \n However,  the  claimant  still  has  the  burden  of  proof  in  regard  to  the  issue  of \ncompensability.  More specifically, in regard to the issue of compensability, the claimant \nstill has the burden of proving by a preponderance of the evidence, that she is entitled to \ncompensation benefits for the injuries to her left shoulder and low back.  In determining \nwhether the claimant has sustained her burden of proof, the Commission shall weigh the \nevidence impartially, without giving the benefit of the doubt to either party.  Ark. Code Ann \n11-9-704.  Wade v. Mr. Cavanaugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989).  Further, \nthe Commission has the duty to translate evidence on all issues before it into findings of \nfact.   Weldon  v.  Pierce  Brothers  Construction  Co.,  54  Ark.  App.  344,  925  S.W.2d  179 \n(1996). \n Under Arkansas Workers’ Compensation  law,  a  compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability  and  must  be  stated  within  a  degree  of  medical  certainty. \nSmith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).    Speculation  and \nconjecture cannot substitute for credible evidence.  Liaromatis v. Baxter County Regional \nHospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).    More  specifically,  to  prove  a \ncompensable injury, the claimant must establish by a preponderance of the evidence: (1) \n\n11 \n \nan injury arising out of and in the course of employment; (2) that the injury caused internal \nor external harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in A.C.A. 11-9-\n102 (16) establishing the injury and (4) that the injury was caused by a specific incident \nand identifiable by time and place of occurrence.  If the claimant fails to establish any of \nthe requirements for establishing the compensability of the claim, compensation must be \ndenied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d 876 (1997). \nIn the present matter, there is no doubt that the claimant suffered from previous horrific \noccurrences and psychological trauma in her life which are truly unfathomable and that \nclearly  have had  a  detrimental  effect  on  her  life,  prior  to  the  incident  in  question  here.  \nHowever, even with the prior horrific occurrences, the claimant still must comply with the \napplicable workers’ compensation law and regulations in regard to satisfying the burden \nof  proof  for  her  claim.  The  injury  which  the  claimant  seeks  benefits for must  be \nestablished  by  medical  evidence  supported  by  objective  findings and these findings \ncannot come under the voluntary control of the patient. A.C.A. 11-9-102 (16).  It is also \nimportant  to  note  that  the  claimant’s  testimony  is  never  considered  uncontroverted.  \nLambert v. Gerber Products Co.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  \n Here the primary evidence and testimony in regard to the claimant’s injuries comes \nfrom the claimant.  No medical evidence provided that her lower back and left shoulder \nproblems were due to a work-related incident.  Many medical records provided that the \nclaimant had suffered from issues involving low back pain and pain in her neck for years.  \nThe  pain  was  never  associated  with  a specific incident per  the  medical  reports. There \n\n12 \n \nwas  some  medical  that  mentioned a work-related fall, but  the  reports  did  not  specify \nspecifically the cause of the fall or the pain in the lower back and shoulder.   \n The claimant clearly fainted or suffered from Syncope, the medical term for a brief \nloss of consciousness that’s followed by a quick and full recovery, after a review of the \nwork-related video.    This  event  occurred after the  claimant assisted in  stocking  in  a \nsquatted position and then standing.  There are no medical reports that connect the event \nof the claimant’s Syncope to a work-related injury.  Syncope can occur just by jumping \nout of bed  quickly.    Testimony  provided  and was  believable,  that although  the  incident \noccurred on a hot August day, the air conditioner was automatically set for 75 degrees.  \nEven if the temperature was above 75 degrees, that alone is found to not be significant \nto satisfy the required issue of proof.  It is clear the claimant strongly feels she is entitled \nto  workers’  compensation  benefits  due  to  her  episode  of  Syncope,  but  there  is  no \nalternative but to apply the Arkansas law in regard to her workers’ compensation claim.  \nConsequently, without giving the benefit of the doubt to either party, there is no alternative \nbut to find the claimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable work - related injury under the Arkansas Workers’ Compensation \nAct.   Consequently, all other  issues are  moot. If not  already paid,  the  respondents  are \nordered to pay the cost of the transcript forthwith. \nIT IS SO ORDERED.   \n       ___________________________ \n        JAMES D. KENNEDY \n      Administrative Law Judge","textLength":22208,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306528 MALAK HUSSIAN, EMPLOYEE CLAIMANT VS. BEAUTY SENSATIONS, EMPLOYER RESPONDENT OPINION FILED SEPTEMBER 18, 2024 Hearing before Administrative Law Judge, James D. Kennedy, on the 13th day of August 2024, in Little Rock, Arkansas. Claimant is Pro Se. R...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["shoulder","back","neck","rotator cuff","lumbar","hip","knee"],"fetchedAt":"2026-05-19T22:49:13.901Z"},{"id":"alj-H300103-2024-09-17","awccNumber":"H300103","decisionDate":"2024-09-17","decisionYear":2024,"opinionType":"alj","claimantName":"Roy Austin","employerName":"J. B. Hunt Transport, Inc","title":"AUSTIN VS. J. B. HUNT TRANSPORT, INC. AWCC# H300103 September 17, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/AUSTIN_ROY_H300103_20240917.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"AUSTIN_ROY_H300103_20240917.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H300103 \n \nROY AUSTIN, Employee CLAIMANT \n \nJ. B. HUNT TRANSPORT, INC., Employer RESPONDENT \n  \nESIS, INC., Carrier RESPONDENT \n \n OPINION/ORDER FILED SEPTEMBER 17, 2024  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney, Little Rock, Arkansas; although not \npresent at hearing. \n \nRespondent represented by JOSEPH H. PURVIS, Attorney, Little Rock, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn January 5, 2023, Laura Beth York, claimant’s attorney, filed a Form AR-C requesting \nvarious compensation benefits in which he alleged injuries to his neck, back, left shoulder, chest, \nwaist,  head  and  other  whole  body;  however,  no  hearing  was  requested. No  further  action  was \ntaken in this claim. \nOn July 16, 2024, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for September  10,  2024.  Notice  of \nthat hearing was sent to the claimant by certified mail, return receipt requested on July 30, 2024. \nThat notice was returned by the United States Postal Department with the notation, “Return to \nSender.  Unclaimed.  Unable to Forward.” Ms. York indicated by email of a letter dated July 22, \n2024, that  she  would  waive  her  appearance  at  the  hearing  and  further  indicated  that  she  had  no \nobjection to the Motion to Dismiss “WITHOUT prejudice.”    \n\nAustin – H300103 \n2 \n \n After my review of respondent’s Motion to Dismiss, Ms. York’s response thereto that she \nhad no objection to the motion to dismiss without prejudice, and the claimant’s failure to appear \nat the scheduled hearing, as well as all other matters properly before the Commission, I find that \nrespondent’s  Motion  to  Dismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to A.C.A. \n§11-9-702(a)(4).  This dismissal is without prejudice.     \n IT IS SO ORDERED. \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2238,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H300103 ROY AUSTIN, Employee CLAIMANT J. B. HUNT TRANSPORT, INC., Employer RESPONDENT ESIS, INC., Carrier RESPONDENT OPINION/ORDER FILED SEPTEMBER 17, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Fort Smith, Sebastian County, Arkansas. Cla...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["neck","back","shoulder"],"fetchedAt":"2026-05-19T22:49:13.829Z"},{"id":"alj-H004886-2024-09-17","awccNumber":"H004886","decisionDate":"2024-09-17","decisionYear":2024,"opinionType":"alj","claimantName":"Lana Rogers","employerName":"United Parcel Service, Inc","title":"ROGERS VS. UNITED PARCEL SERVICE, INC. AWCC# H004886 & H202191 September 17, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ROGERS_LANA_H004886_H202191_20240917.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROGERS_LANA_H004886_H202191_20240917.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC NOS.: H004886 & H202191 \n \n \nLANA ROGERS, EMPLOYEE                                                                            CLAIMANT \nUNITED PARCEL SERVICE, INC., \nEMPLOYER                                                                                                         RESPONDENT                             \n   \nLM INSURANCE CORPORATION,  \nINSURANCE CARRIER                                                                                    RESPONDENT \n \nLIBERTY MUTUAL GROUP,  \nTHIRD PARTY ADMINISTRATOR (TPA)                                                    RESPONDENT                                                                                        \n                                                                                                                                                                                                                                                    \n      \nOPINION FILED SEPTEMBER 17, 2024 \n \nA hearing was held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski, \nCounty, Arkansas. \n \nClaimant, appeared, pro se.       \n \nRespondents represented  by the Honorable David  C.  Jones,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \nA hearing was held in the above-styled claim on June 19, 2024, in Little Rock, Arkansas.  \nOn April 17, 2024, a prehearing telephone conference was held on this claim.  A Prehearing Order \nwas entered into this matter on that same day.  Said order set forth the stipulations offered by the \nparties, their respective contentions, along with the issues to be litigated.  \nStipulations \nThe parties submitted the following stipulations, either pursuant to the prehearing order, or \nat the beginning and/or during the hearing.  I hereby  accept the jointly proposed stipulations as \nfact: \n   \n\n \nROGERS – H004886 & H202191 \n2 \n \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n2. The respondent-employee-employer on June 12,  2020, when the Claimant sustained \ncompensable injuries, including but limited to her head, left upper extremity and neck, \narising out of and during the course and in the scope of her employment with United \nParcel  Service,  Inc.,  the  respondent-employer.    That  claim  is  on  the  record  with  the \nCommission as AWCC File No. H004886. \n3. That on March 8, 2022, the Claimant sustained another work-related injury during the \ncourse  in  the  scope  of  her  employment  when  a  package  struck  the  Claimant  on  the \nhead, causing further cervical strain or strain or aggravation of preexisting condition \nfrom the original injury.  That claim is on record with the Commission as AWCC File \nNo. H202191.  Said claim was accepted as a compensable claim “medical-only,” \nclaim, and all the initial evaluation and treatment were provided. \n4. The Respondents have controverted benefits related to both claims in their entirety.    \n5. The Respondents are entitled to an offset for any group health carrier, disability group  \n \nbenefits, and/or any unemployment benefits paid to or on behalf of the Claimant,  \n \nshould the Claimant have applied for and received said benefits.     \n \n   6.    All issues not litigated  herein are reserved under the Arkansas Workers’ Compensation   \n      Act. \n7.   The Claimant received a change of physician on March 7, 2023.  \nIssues \n By agreement of the parties, the issues to be litigated at the hearing were as follows: \n1.       Whether the Claimant sustained an injury to her back on June 12, 2020. \n\n \nROGERS – H004886 & H202191 \n3 \n \n \n2.         Whether the Claimant is entitled to any additional medical benefits her neck injury          \nand medical for her alleged  back injury, in the form of physical therapy treatment.  \nContentions \n The parties’ respective contentions are outlined below: \nClaimant: \nThe Claimant contends that she sustained a compensable back injury in the course of her \nemployment with the respondent-employer on June 12, 2020.   \nShe further contends that she is entitled to additional medical treatment for neck injury of \nMarch 8, 2022, and initial medical treatment for her alleged back injury, in the form of physical \ntherapy treatment.   \nRespondents:  \n1. The Respondents contend that all appropriate benefits have previously been paid in \nregard to the June 12, 2020, incident and injury sustained. In that regard, the Respondents paid for \nall reasonably necessary treatment, paid the Claimant a period of temporary total disability benefits \nwhile she remained off  work, as well as accepted and paid out the 2% impairment rating to the \nwrist  assigned  by  Dr.  Jeanine  Andersson  on  August  5,  2021.  Accordingly,  the  Respondents \ncontend that there are no further benefits due in regard to the June 12, 2020 incident, and that claim \nshould  be  dismissed  with  prejudice  based  upon  the  statute of  limitations  and  the  last  benefits \nhaving been paid more than 2 years since the injury date or last payment made on that particular \nclaim. \n2. The Respondents contend that all appropriate benefits have been paid in regard to \nthe Claimant’s compensable injury of March 8, 2022. In that regard, the Respondents contend that \nthe Claimant merely sustained a temporary aggravation of her preexisting cervical condition, and  \n\n \nROGERS – H004886 & H202191 \n4 \n \n \nall reasonably necessary medical treatment was provided. It appears that this claim was a “medical- \nonly” claim, and the Claimant continued to work for the Respondent/Employer thereafter.   The \nRespondents contend that the Claimant was granted a one-time change of physician to Dr. Sokolow \nand that the Respondents provided the initial evaluations and treatment recommended. However, \nthe Respondents contend that there were no significant objective medical findings to support the \nClaimant’s ongoing complaints, and that further treatment is not reasonably necessary nor related \nto the injury from March 8, 2022. Accordingly, the Respondents contend that the March 8, 2022, \nclaim should be dismissed with prejudice. \n3. The Respondents contend that no further medical treatment or indemnity benefits \nare  due  in  regard  to  either  of  the  above-referenced  claims  and  therefore  both  claims  should  be \ndismissed. \n4. The  Respondents  contend  that  they  would  be  entitled  to  an  offset  for  any  group \nhealth  carrier,  disability  carrier,  and/or  unemployment  benefits  paid  to  or  on  behalf  of  the \nClaimant, should the Claimant have applied for and received said benefits. \n5. The Respondents reserve the right to amend and supplement their contentions after \nthe discovery has been completed.  \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear  the  testimony  of  the Claimant and observe her  demeanor,  I  hereby  make the  following \nfindings  of  fact  and  conclusions  of  law in  accordance  with  Ark.  Code  Ann. §11-9-704  (Repl. \n2012): \n\n \nROGERS – H004886 & H202191 \n5 \n \n1.      The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n          \nclaim. \n \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n \n           3.         The  Claimant failed to prove by a preponderance of the evidence that she sustained  \n \na  compensable  injury  to  her  back  during  and  in  the  course  and  scope  of her \nemployment with the respondent-employer on June 12, 2020.  The issue relating to \nmedical treatment the Claimant’s back has been rendered moot and discussed in this \nOpinion. \n4.       The Claimant failed to prove by a preponderance of the evidence that any additional  \nmedical treatment is reasonably necessary in connection with her compensable neck \ninjury of March 8, 2022. \nSummary of Evidence \nLana D. Rogers (referred to herein as the “Claimant”), was the only witness to testify \nduring the hearing.  Sign language interpreters for the Claimant were: Ms. Julie Lowe and Ms. \nKaren Owens.  \n            The  record  consists  of  the June  19, 2024  hearing  transcript  and  the  following  exhibits: \nSpecifically, the  documentary evidence includes Commission’s Exhibit 1,  which comprises the \nPrehearing Order filed on April 17, 2024, along with the parties’ responsive filings; the transcript \nfor the Prehearing Telephone Conference was marked as Commission’s Exhibit 2, which has been \nretained in the Commission’s file; Claimant’s medical Exhibit comprising eight (8) pages  was \nmarked  Claimant's  Exhibit  No.  1; and Respondents’ Medical  Exhibit  1 contains two-hundred \nnineteen (219) numbered pages;  \n\n \nROGERS – H004886 & H202191 \n6 \n \nThe Claimant was allowed to proffer the following: Claimant’s Exhibit 2 is a Non-Medical \nDocumentary Exhibit consisting of thirteen (13) pages; and Claimant’s Exhibit 3 is a Non-Medical \nDocumentary Exhibit consisting of the three (3).  These exhibits have not been considered in this \nOpinion.  \n                                           Testimony \nLana D. Rogers/the Claimant  \nAt the time of the hearing, the Claimant, age 44 completed high school.  She testified that \nshe  has  worked  for the respondent-employer/United  Parcel  Service  (hereinafter  referred  to  as, \n“UPS”) approximately six (6) years.  The Claimant confirmed that she is alleging that she sustained \na back injury in the course and scope of her employment with UPS on June 12, 2020.   \nThe Claimant testified that on the day of her alleged injury to her back, she was inside of a \ntrailer unloading boxes, which was pull up to the dock.  According to the Claimant, the driver of \nthe  truck shifted  and  pulled  away and caused  the  trailer  tilt, causing  some  boxes  to  fall.    She \ntestified that a small box fell, and she bent down to pick it up, when another box fell on her head, \ncausing injury to her back.  The Claimant testified that she reported her injury to her supervisor.  \nPer  the  Claimant,  she had  to  go  to  the  office  to  fill  out  an  injury  report,  which  was  done  by \ncomputer.  According to the Claimant, it was a long form, and it took her about 45 minutes to an \nhour to complete it.   \nAfter  the  Claimant  completed  the  injury  form,  she  was  told  by  the  supervisor,  Alan \nHarrelson, to go to the emergency room/ER at Baptist, in North Little, for medical treatment of \nher injury.  However, the Claimant testified that while she was at the Baptist ER, Mr. Harrelson \ntexted her and told her to go to Urgent Care at Concentra, and she did so.  Per the Claimant, they \ndid tests and made an appointment for her to come back for re-evaluation of her back.  However, \n\n \nROGERS – H004886 & H202191 \n7 \n \nthe Claimant did not recall undergoing an MRI of her back.  At that time, the Claimant essentially \ntestified that she had a headache, and the back of her neck, all that way down her mid-back hurt. \nShe testified that they recommended she undergo physical therapy treatment.   \nOn cross-examination, counsel for the Respondents pointed out to the Claimant that she \ntestified about the box hitting her on her head and she went to Concentra, but she is now claiming \na back injury due to the 2020 incident.  Counsel asked, “Are you claiming you hurt your back from \nthe 2020 incident or the 2022 incident?  The Claimant replied, “Both.”  The Claimant confirmed \nthat the insurance carrier provided her treatment at Concentra.  She confirmed that she had physical \ntherapy following the 2020 injury.  The Claimant agreed that she saw Dr. Adametz, at Concentra, \nfor both her neck, and she also had a wrist injury.  She admitted that she had complaints of the \nneck  and  wrist.  The  Claimant  underwent  an  MRI  of  both  her  wrist  and  lumbar  spine  at  the \ndirection of Dr. Adametz.  She did not recall having had a prior MRI of the lumbar spine in 2018.  \nThe Claimant testified that she had a car accident in 2018.  In fact, the Claimant confirmed that \nshe had a couple of car wrecks.  \nThe Claimant did not recall if there were any changes between the 2018 MRI and the 2020 \nMRI.  She admitted that she was off work from UPS during the first injury and she went to work \nfor Great Clips.  The Claimant testified that during the car accident, she collapsed because she was \nhit from behind very hard.  However, the Claimant agreed that she testified during her deposition \nthat  she  had  a  car  wreck  on  November  13,  2019.    Said  accident  occurred  after  the  earlier  MRI.  \nThe Claimant confirmed that she was still actively undergoing treatment for the 2020 injury when \nshe went to work for Great Clips.  She confirmed that eventually based upon her wrist complaints, \nshe was sent to a wrist/hand specialist, Dr. Jeanine Andersson.  \n\n \nROGERS – H004886 & H202191 \n8 \n \nShe  confirmed  that  Dr.  Andersson  ordered  a  nerve  conduction  study  to  determine  if  she \nhad  any  radicular  problems  with  her  neck.    The Claimant  did  not  recall whether  the  test  results \nwere normal.   The nerve conduction study was done on April 29, 2021, with an impression of no \nradiculopathy.  She agreed that Dr. Andersson sent her for additional physical therapy after that.  \nDr. Andersson released that the Claimant for the 2020 injury on August 5, 2021.  She assigned the \nClaimant a 2% impairment rating for her wrist.  The Claimant was released to return to work in a \nfull duty capacity and the impairment rating was paid out.   \nOn March 8, 2022, the Claimant sustained a second injury.  During the second injury, the \nClaimant testified that a box fell and hit her on the head.  The Claimant admitted that she went to \nConcentra for initial medical treatment.  Although the medical records do not mention her back \nbeing  hit,  the  Claimant  maintained  that  the  box also hit  her  back.  However,  the  Claimant \nspecifically  stated  that  she  told  doctors  at  Concentra  that  she  her  back was  hit.    The  Claimant \nconfirmed that she returned work for the respondent-employer after her 2022 injury, and she has \ncontinued to work for UPS almost ever since then.  \nOn November 9, 2022, the Claimant had another car wreck.  The Claimant denied that she \naggravated her neck and back as a result of that non-work-related car wreck.  Instead, the Claimant \ntestified that she injured only her left shoulder.   \nThe Claimant testified: \nQ Did you not tell me in your deposition that you had aggravated your back as a result \nof the car wreck? \n \nA So if you recall, I had two accidents, and in the last car accident I injured my left \nshoulder because of the seatbelt.  I didn’t say anything about my back.  I didn’t hurt my \nback.  There might have been some misunderstanding.  Maybe you misunderstood, I’m not \nsure, but I didn’t say anything about hurting my back at that time.     \n \nShe denied that she testified during her deposition that her back was hurt from the MVA  \n\n \nROGERS – H004886 & H202191 \n9 \n \nbecause  it  was  already  hurting.    The  Claimant  admitted  that  she  did  recall  saying  that  at  her \ndeposition, but she testified that it was not for the last car accident.  She specifically testified that \nshe said she had injured her back, but not in the last accident.  The Claimant stated that she would \nprefer her words not be twisted.   \n According to the Claimant, she went to see Dr. Mocek after her injury from work, and not \nas a result of her November 9, 2022, car wreck.  She denied that her personal injury attorney sent \nher to Dr. Mocek for her car wreck.   \n The Claimant explained: \n Q Okay.  You went to him after the car wreck though, correct? \nA I believe that I saw Dr. Mocek before the car accident.  If I did see him afterwards, \nit did not have anything to do with the accident injury of my left shoulder. \n \nQ But he’s the one that sent you for the MRI in January of 2023, correct? \nA For my spine.  I think you’re trying to confuse me, but I was sent for my spine.  It \nhad  nothing  to  do  with  that.    The  last  car  accident  was  from  the  seatbelt  and  the \nseatbelt  tightening  up  and  injury (sic) when  it  pushed  and  pull  against  my  left \nshoulder. \n \nIt appears that the records submitted show that Dr. Mocek ordered that MRI for her lumbar \nspine after the car wreck.  She had already had one for her prior workers’ compensation claim in \n2020.   The Claimant finally confirmed that  Dr.  Mocek  sent  her  for  another  MRI  after her car \nwreck.  She essentially admitted that she has a third-party claim for the November 9, 2022, car \naccident, which is still active.  The Claimant received a change of physician to Dr. Sokolow for \nher back injury of 2022 with UPS.  This order was entered on March 15, 2023. \n She agreed that she saw Dr. Sokolow on March 15, 2023.  The Claimant maintained that \nshe told Dr. Sokolow about her years of back problems and pain that she had before she went to \nwork at UPS.  It was brought to the Claimant’s attention that none of this information was in the \n\n \nROGERS – H004886 & H202191 \n10 \n \nreport.  She explained that she did not have an interpreter for this medical visit.  The Claimant also \ntestified that she wrote back and forth to the doctor during her office visit with him.  However, \nmiraculously none of the information made to the history.  The Claimant maintained that she told \nDr. Sokolow about her car wreck in November 2022, but it did not make it into his medical file. \n Under  further  questioning,  the Claimant confirmed  that  she  is  claiming  all  of  her  back \nproblems occurred in either 2020 or 2022 while working for UPS.  She essentially testified that it \ntook some time for her to sign the medical release form.  She explained that she had a lot of things \ngoing on at the time, but once the Chief Judge finally explained why she need to sign, she did so. \nIt appears that this was done at the dismissal hearing of December 13, 2023.    \n The  Claimant  admitted  that  she  was  asked  many  times  during  her  deposition (taken  on \nApril 17, 2019) if she had prior back problems before she went to work for UPS.  And, throughout \nthe deposition she would say, “Well, I don’t recall.  I don’t recall.  I don’t remember a lot. I don’t \nremember.”  However, the Claimant testified that she has read through some of the documents to \nrefresh  her  memory  so  that  she  does  not  have  to  say  she  cannot  remember.    According  to  the \nClaimant, she testified during her deposition that she had an epidural and that made her back tight.  \nShe confirmed that she testified during her deposition that she had no prior treatment to her neck \nbefore going to work for UPS in 2019.    \n She was asked if she had chronic low back problems dating all the way back to 2006.  The \nClaimant testified that she remembered that she had back problems dating back all the way to when \nshe gave birth to her daughter in 2003.  She denied that she had back pain at least 14 years prior \nto her injury at UPS.  The Claimant replied: “It’s not back pain but just a feeling of tightness in \nmy back, and uncomfortable feeling, not really pain to where it hurts but just an uncomfortable \nfeeling in my back.”                  \n\n \nROGERS – H004886 & H202191 \n11 \n \n The  Claimant  was  asked  if  she  had  a  car  wreck  in  2013,  but  she  maintained  she  could \nremember if it was 2013.  Next, the Claimant was shown page 8 of the exhibits in admission from \nBaptist Medical Center’s Emergency Room.  Her reply was: “This says – wow.  I do not remember \nthis one.”  The  Claimant  did  not  recall  having  neck  pain  following  that  motor  vehicle  accident \nalthough the medical records show that she did.   She also did not remember following up at the \nER three (3) days after that for ongoing neck pain.                       \n Under further questioning, the Claimant admitted that as far as her prior back problems, \nshe  started  seeing  a  chiropractor  back  in  May  of  2015.    These  records  show  that  in  2015,  the \nClaimant  complained  of  cervical  lumbar  and  lumbar  sacral  region  pain  and  problems  to  the \nchiropractor.  According to the Claimant, she complained to the chiropractor because of the shot \nshe received when her child was born back in 2003.  The Claimant denied that she had problems \nwith back pain.  Instead, the Claimant testified that she had an uncomfortable feeling in her back, \nbut not specifically denied that she had back pain or that it her back hurt.   \n The following exchange took place with the Respondents’ attorney and the Claimant: \nQ Did  you  get  treatment  for  your  back  and  neck  and  your  whole  spine  with  the \nchiropractor? \n \nA To be honest with you, I really don’t remember the car accident.  When you bought \nit  up,  I  did  not  remember  that  car  accident.    When  you  brought  it  up,  I  did  not \nremember that car accident, and then the one in 2015, I don’t remember that either.  \nYou asked and I’m just telling you that I don’t remember.  \n \nThe Claimant did not recall a chiropractor for back issues and neck issues, from a period  \n \nof almost three (3) years, which was from 2015 until 2018.  According to the Claimant, she went \nto see the chiropractor because of an uncomfortable feeling in her back, and not because of pain.  \nShe specifically testified that she had a feeling of stiffness, “a feeling of very stiff.”  The Claimant \n\n \nROGERS – H004886 & H202191 \n12 \n \nadmitted that she complained of left hip pain and pain going down her leg.  These notes are on \npages 21-27 of the exhibits.  (Tr. 63) \n She denied that she had leg pain or hip pain before she went to work at UPS.  The Claimant \ntestified that she hurt her left femur at UPS because she had fallen in a hole.  She explained that it \nwas not the left leg.  Per the Claimant, it was two different things that were going on, so the injury \nto the femur was not happening at that time.  She denied she recalled telling the chiropractor that \nanything she would do pretty much aggravate her back condition, which was on page 46 of the \nexhibits.  The Claimant continued to maintain that anything she would do caused her back to be \nuncomfortable.  She also maintained that this discomfort resulted from the epidural injection she \nreceived when her child was born in 2003.   \n The Claimant treated with Skinner Chiropractic and a couple of days and later she transited \nover to Pinnacle Chiropractic a couple of days apart.  According to the Claimant, she transitioned \nfrom Skinner because he was a very tall and big gentleman, and he was very rough with her back.  \nThe  Claimant  testified  she  was  afraid  he  was  going  to  damage  something.    After  the  Claimant \ncompleted  her  treatment  with  the  chiropractor,  she  started  going  to  UAMS  for  chronic  left  side \nand low back sciatica in May of 2018.   However, the Claimant did recall going to physical therapy, \nbut  she  did  not  recall  the  specifics  or reason for  this  treatment.   She  denied  she  recalled \ncomplaining about pain radiating down her thigh in 2018.   Her reply was, “On the left leg, but \nwas not the femur.  That was a different separate issue.” \n An MRI was performed of the Claimant’s back on May 29, 2018, which is found at page \n97  of  the  exhibits.    She  admitted  she  was  complaining  about  numbness  and  tingling  in  her  feet \nwhen  she  was  treating  at  UAMS.    Next,  the  Claimant  was  asked  about  page  110  of  the \nRespondents’ exhibit, which give a good history, as far as the chronic low back pain and pain into \n\n \nROGERS – H004886 & H202191 \n13 \n \nher  leg.    Per  these  notes,  the  Claimant  was  noted  to  have  lumbar  radiculopathy  at  L5-S1.    She \nagreed  that  UAMS  did  offer her  epidural  steroid  injections  for  her  back  pain,  but  she  did  want \nthem because of the prior problems.   \n She confirmed that she had a car wreck in 2019 and had a whiplash injury.  Her next injury \nwas not until 2020, when she had her first injury with UPS.  The following exchange took place: \nQ So is it fair to say that you a pretty long history of prior back problems, pain down \nyour leg, and lots of treatment for back problems before your first injury at UPS? \n \nA No.  I  specifically  remember  saying  that  my  left  leg,  not  the  femur  which  is  a \ndifferent  -- you’re trying to make it all like the same issue.  These are very separate \ninjuries and my back issue was not an injury, it was uncomfortableness.  It wasn’t \npain.  I don’t know how to specifically describe it to you. \n \nThe Claimant was asked if she had years and years of back pain, back complaints, and \nextensive treatment including MRIs, physical therapy, and chiropractic treatment before her first \ninjury at UPS, no matter the cause.  Her reply was, “Yes, I guess, because – I mean, yes.”  \nIt appears that the Claimant got a change of physician in March 2023 for her back to treat \nwith Dr.  Sokolow.    He  recommended  physical  therapy,  and  the  Respondents  paid  for  that \ntreatment.    At  that  point,  therapy  was  no  longer  necessary  and  the  carrier  stop  paying  for  it.  \nSpecifically, after the Claimant’s second visit with Dr. Sokolow, the Respondents stopped paying. \nPer the Claimant, the second car accident is still ongoing now with the courts.  Regarding \nthe November 9, 2022, car accident, she confirmed that it is her testimony that she only injured \nher shoulder in that accident.  The Claimant testified that she was rear-ended.                                                     \n                                                    Medical Records  \n Prior  medical  records  dating  back  to August  18, 2006  demonstrates  that  the  Claimant \nsought medical treatment from Baptist Health Medical Center, North Little Rock due to chronic \n\n \nROGERS – H004886 & H202191 \n14 \n \nback pain.    X-rays were performed with an IMPRESSION of: “No abnormality seen in the lumbar \nspine.  Specifically, no fractures are seen.”    \n The Claimant sought emergency treatment from the Emergency Department in North Little \nRock, ER due to a motor vehicle accident on January 29, 2013.  This time, the Claimant was noted \nto have a “head contusion.” Said accident occurred while the vehicle was traveling at a low speed.  \nThe airbag was not deployed.  The Claimant complained of a headache.  She was discharged home \nin stable condition. \n On February 2, 2013 the Claimant returned to the ER at Baptist NLR due to complaints of \na headache and dizziness since MVA.  The Claimant complained of mainly neck pain.  She was \nassessed with “Post Traumatic headache,” for which she was discharged home with medications \nfor her headache.      \n Chiropractic records show that the Claimant treated at Skinner Chiropractic from May 12, \n2015, until November 14, 2016.  The Claimant’s subjective complaints were for lower back pain \nand headaches.  On April 1, 2016, the Claimant complained to the chiropractor that she was having \na lot of pain and stiffness in her lower back, for which adjudgments were performed in the form \nof spinal manipulation.   \n Further review of the medical records shows that the Claimant sought medical treatment \nagain from Skinner Chiropractic from November 17, 2016, until May 7, 2018.  The Claimant’s \nsubjective complaints of aching, numbness and shooting discomfort in her thoracic, lumbar and \nlumbosacral.  On November 17, during initial consultation, the Claimant specifically complained \nof pain that radiated the back of her left leg.  She was seen for a follow-up chiropractic visit on \nNovember 28, 2016, and she described lumbar, thoracic, and cervical symptoms and pain as being \nsharp and dull in intensity. \n\n \nROGERS – H004886 & H202191 \n15 \n \nThe Claimant sought medical attention from UAMS on May 14, 2018, due to a two-year \nhistory of low back pain which radiated down her left anterior lateral thigh. She had numbness and \ntingling, but no associated weakness.  The Claimant reported that she had been seeing chiropractor \nfor two (2) years without improvement.  At that time, the Claimant was diagnosed “Chronic left-\nsided low back pain with left sided sciatica” by, Melissa Bryan, MA.   \nAn MRI was performed of the Claimant lumbar spine on May 29, 2018, with the following \nimpression being rendered by Dr. Jennifer McCarty: \n1. Moderated  L4-5 facet  arthropathy,  without  neural  foraminal  narrowing  nerve  root \nimpingement, or disc herniation. \n2. Mild degenerative disc disease at L5-S1 with loss of the normal disc signal. Mild-to-\nmoderate bilateral L5-S1 osseous neural foraminal narrowing.       \n \nThe Claimant was evaluated at the UAMS Orthopedic Clinic due to chronic low back pain \nassociated  with  radiculopathy,  June  6,  2018.    Dr.  Michael  Casset  referred  the  Claimant  for \nInterventional Pain Specialty Services.   \nOn  June  25,  2018,  the  Claimant  was  evaluated  at  UAMS  for  continued  complained  of \nchronic  back  pain at  the  Spine  Center,  Interventional  Pain.    She  showed  signs  and  symptoms \nconsistent with lumbar radiculopathy in the L-5 distributtion.  The Claimant complained of falling \noff  a  ladder  at  work  and  sometimes  falling  when  walking,  such  as  in  the  parking  lot.    She \ncomplained of terrible burning pain in both feet, and numbness and tingling in the left leg. \nThe Claimant underwent initial evaluation at the Clinical Support in UAMS Rehabilitation \nServices, Physical Therapy due to a chief complaint of low back pain associated with radiculopathy \non  August  3,  2018.   Physical  Therapist,  Deborah  Davis, determined  that  the  Claimant  met  the \nmedical necessity requirement and would benefit from therapy intervention for her ongoing low \nback pain.  \n\n \nROGERS – H004886 & H202191 \n16 \n \nIt appears that the Claimant underwent multiple sessions of physical therapy for her low \nback  pain  and  associated  radiculopathy  at  UAMS  outpatient  physical  therapy  clinic,  until \nSeptember 27, 2018. \nOn  November  13,  2019,  the  Claimant  sought  medical  treatment  from  the  Emergency \nDepartment in  North  Little  Rock, Emergency Room.    The  Claimant  was  involved  in  a  motor \nvehicle accident after being rear-ended.  A CT of the Claimant’s cervical spine was performed as \na result of the Claimant having complained of lower head and neck pain. The findings of this exam \nshowed  that  there  was  no  evidence  of  any  acute  bony  fracture  or  misalignment.    She  also \nunderwent a CT of the head with no acute findings.  The   Dr. Joshua Adam, Tennyson placed the \nClaimant in a C-collar and discharged her home with Naprosyn for pain as needed.  It was also \nrecommended that the Claimant apply a moist heating pad as needed for comfort.  \nOn November 12, 2020, the Claimant underwent an MRI of the back.  Dr. Alexander Albert \nopined: “IMPRESSION: Facet arthritis from L3-4 through L5-S1.”  The Claimant also underwent \nother diagnostic tests for the wrist and hand which do not pertain to this claim.   \nDr.  Jeannine Andersson  returned  the  Claimant  to  work  on  August  5,  2021,  without  any \nrestrictions. \nMedical notes from Concentra Medical Center dated June 29, 2022, show an office visit \nrecheck of the Claimant’s neck and back pain.  In fact, Clint Bearden authored a Form 3, in this \nregard. His assessment was “1.   Thoracic  myofascial  strain  initial  encounter.  2.  Neck  Strain \nsubsequent  encounter.”  However,  it  was  noted  that  the  Claimant  was  at  a  functional  goal and \nready for discharge. At that time, the Claimant’s neck symptoms had resolved.  Dr. Bearden opined \nthat  her hip  complaints  were  unrelated  to  the June  2022  incident.    Therefore,  the  Claimant  was \n\n \nROGERS – H004886 & H202191 \n17 \n \nreturned to work and regular activities without any physical limitations or restrictions due to her \nworkplace injury.  \nThe Claimant underwent an MRI of the lumbar spine on January 4, 2023.  Dr. Raymond \nPeeples rendered the following IMPRESSION: “Multiple level facet hypertrophy.  No evidence \nof acute lumbar spine injury or significant canal foraminal narrowing.” \nA review of the medical evidence records shows that the Claimant underwent a comparison \nMRI of the lumbar spine WITHOUT IV CONTRAST on May 3, 2024, to compare with a prior \nlumbar spine MRI of January 4, 2023.  IMPRESSION:  \n *  Mild central stenosis L4-5 and L5-S1. \n *  Left-sided foraminal stenosis L5-S1. \n*  Moderate Facet arthritis L3-S1. \n*  Findings are worse than previous study.      \n \n                    ADJUDICATION \nA. Compensability  \nThe Claimant has asserted a compensable back injury on June 12, 2020, while working for \nthe respondent-employer, United Parcel Service(UPS), Incorporated .  \n \"Compensable  injury\"  means  an  accidental  injury  causing  physical  harm  to  the  body, \narising out of and in the course of employment and which requires medical services or results in \ndisability  or  death.    Ark.  Code  Ann.  §11-9-102(4)(A)(i).  A  compensable  injury  must  be \nestablished   by   medical   evidence   supported   by   objective   findings.      Ark.   Code   Ann.   § \n11-9-102(4)(D).   The Claimant must prove by a preponderance of the evidence that she sustained \na compensable injury.  Ark. Code Ann. § 11-9-102(4) (E)(i). \nPreponderance  of  the  evidence  means  the  evidence  having  greater  weight  or  convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).   \n\n \nROGERS – H004886 & H202191 \n18 \n \n  After  reviewing  the  evidence  in  this  case  impartially,  without  giving  the  benefit  of  the \ndoubt to either party, I find that the Claimant failed to prove by a preponderance of the credible \nthat she was sustained an accidental injury to her lumbar spine arising out and in the course of her \nemployment with UPS on June 12, 2020.  I am unable to find any objective medical evidence of \nan injury to the Claimant back.  There is not any medical interpretation showing that there are any \nchanges between the 2018 MRI the 2020 MRI.  There are no objective findings of an injury to the \nClaimant’s  back  which  are  causally  connected  to  her  work  activities.    The  Claimant  has \ncomplained chronic back pain and leg pain for years.  She has received extensive chiropractic and \nphysical therapy for her back prior to her ever going to work for UPS.  \nThe Claimant’s account of this incident is not credible. The Claimant initially reported that \nshe was hit on the head by the box, and there was no mention of a back injury.  Her testimony was \nnot corroborated by the documentary medical evidence, which demonstrates that the Claimant has \na  lifelong  history  of  prior  medical  treatment  for  her  back. The Claimant’s testimony is also not \ncorroborated by the contemporaneous medical documentation of record do not mention an injury \nto the Claimant’s back.    The  Claimant  made  mentioned  of  a  neck  injury.    The  Respondents \naccepted the neck injury and paid appropriate benefits for that injury.  Additionally, the Claimant’s \ntestimony demonstrates that while she was off work for her 2020 injury she went to work for Great \nClips.  The Claimant was also involved in a subsequent motor vehicle accident on November 9, \n2022, which  aggravated  her  neck  and  back.  Her  2024 MRI  of  the  lumbar  spine  supports  this \nconclusion. \nIn light of the above cited reasons, I find that the Claimant failed to prove an injury to her \nlumbar spine by medical evidence supported by objective findings.  \n\n \nROGERS – H004886 & H202191 \n19 \n \nTherefore, based on all of the foregoing, I find that the Claimant has failed to meet all of \nthe  necessary  requirements  for  establishing  a  compensable  injury  to  her  lumbar spine  while \nperforming employment activities for her employer in June 2020.  Thus, I therefore find that the \nClaimant failed  to prove by  a  preponderance  of  the  evidence  that she  sustained  a  compensable \ninjury  to  her back  on  June  12,  2020,  during  and  in  the  course  of  her employment  with  the \nrespondent-employer/UPS.  The issue of treatment for the Claimant’s back is rendered moot.  \nB. Medical Benefits \nAn employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn. § 11-9-508(a).  The Claimant bears the burden of proving by a preponderance of the evidence \nthat  medical  treatment  is  reasonably  necessary.   Stone  v.  Dollar  General  Stores,  91  Ark.  App. \n260, 209 S.W.3d 445 (2005). \nThe Claimant failed prove that additional medical treatment for her neck is reasonable and \nnecessary  medical  treatment  for  her  compensable  neck  injury. Her  testimony concerning  prior \nproblems  was  conflicting  and  confusing.  I  did  not  find  the Claimant to  be  a  credible  witness.  \nNevertheless,  the  documentary  evidence  establishes  this  issue  most  appropriately.  Particularly, \nthe  evidence shows  that the  Claimant  has  had  ongoing  problems  with  neck  and  back  dating  to \n2006.  The  Claimant  was  provided  appropriate  care  for  her  neck  injury  by Respondents.    The \nClaimant was declared to be MMI for this injury.  She received a change of physician to treatment \nwith Dr. Sokolow.  The Respondents paid for two visits with her treating physician.  They also \npaid for the  additional medical physical therapy that he ordered  for this injury.  No doctor had \nrecommended any additional medical treatment for the Claimant’s neck injury in the form of \nphysical therapy treatment.  The Claimant has since returned to work for UPS. She also has had \n\n \nROGERS – H004886 & H202191 \n20 \n \na car wreck since her work-related neck injury.  This car wreck occurred on November 9, 2022.  \nAlthough the Claimant maintained that only her shoulder was injured during the car wreck, the \nevidence  indicates  otherwise. The  probative  evidence  of  record  indicates  that  the  Claimant \ncomplained of neck and back pain after this car wreck. The Claimant incredulously maintained \nduring the hearing that a physical therapist ordered additional medical treatment for her neck. This \nalleged suggestion/recommendation for  additional  physical  therapy, even  if  taken  as  a  fact  is \ninsufficient evidence to support a finding for the need of more treatment for the Claimant’s neck \ninjury. I am not convinced of the Claimant being ordered any additional medical treatment by a \ndoctor.  The record is devoid of a recommendation by a doctor or any other medical personnel for \nadditional medical treatment for her compensable neck injury.  I am well aware that additional \nmedical treatment may be required and in order after the Claimant’s healing period has ended.  \nHowever, I do not find that to be the case in this instance.  The Claimant has been released to full \nduty work without any physical limitations or restrictions for this injury.    I thus find that under \nthese circumstances the Claimant failed to prove her entitlement to additional medical treatment \nfor her compensable neck injury.  \n                ORDER  \nBased in the foregoing findings of fact set forth herein this Opinion, I find that the Claimant \nfailed to prove she sustained a back injury in June 2022, and she failed to her entitlement to any \nadditional medical treatment for her neck.  Hence, this claim is hereby respectfully denied and  \ndismissed in its entirety.          \nIT IS SO ORDERED. \n       __________________________ \n       CHANDRA L. BLACK \n       ADMINISTRATIVE LAW JUDGE  \n\n \nROGERS – H004886 & H202191 \n21","textLength":40037,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC NOS.: H004886 & H202191 LANA ROGERS, EMPLOYEE CLAIMANT UNITED PARCEL SERVICE, INC., EMPLOYER RESPONDENT LM INSURANCE CORPORATION, INSURANCE CARRIER RESPONDENT LIBERTY MUTUAL GROUP, THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FILED SEPTEMBER 17, 2024 A hea...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["neck","cervical","strain","back","wrist","lumbar","shoulder","hip"],"fetchedAt":"2026-05-19T22:49:13.878Z"},{"id":"alj-H400602-2024-09-16","awccNumber":"H400602","decisionDate":"2024-09-16","decisionYear":2024,"opinionType":"alj","claimantName":"Christopher Beman","employerName":"Pinnacle Towing & Recovery","title":"BEMAN VS. PINNACLE TOWING & RECOVERY AWCC# H400602 September 16, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BEMAN_CHRISTOPHER_R_H400602_20240916.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BEMAN_CHRISTOPHER_R_H400602_20240916.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H400602 \n \nCHRISTOPHER R. BEMAN, EMPLOYEE                CLAIMANT \n \nPINNACLE TOWING & RECOVERY, dba  \nROUTH WRECKER SERVICE, EMPLOYER           RESPONDENT \n \nCLEAR SPRING PROPERTY & CASUALTY CO./ \nSEDGWICK CLAIMS MANAGEMENT, CARRIER/TPA        RESPONDENT \n  \n \n \nOPINION FILED 16 SEPTEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 11 September 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nWorley, Wood & Parrish, PA, Ms. Melissa Wood, appeared on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas on 11 September 2024. This case relates to a workplace injury, sustained \non or about 23 June 2023. A Form AR-C was filed on 25 January 2024. A First Report of \nInjury was filed on 30 January 2024.  \n On 26 July 2024, the respondents requested a dismissal of this matter for failure to \nprosecute the claim. See Exhibit No 1. On 29 July 2024 and then again on 15 August 2024, \nthe claimant communicated through counsel that he did not intend to oppose the dismissal, \nprovided that the dismissal would be without prejudice.  \nThe respondents appeared on 11 September 2024, presented their motion, and \noffered supporting evidence into the record. As argued by the respondents at the hearing, \nthe file reflects no request for a hearing on a claim in the relevant time preceding the filing \n\nBEMAN- H400602 \n2 \n \nof their motion. As noted in the correspondence included in Respondents’’ Exhibit No. 1, the \nclaimant did not appear for the purpose of objecting to the dismissal, as a dismissal without \nprejudice was sought. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2463,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H400602 CHRISTOPHER R. BEMAN, EMPLOYEE CLAIMANT PINNACLE TOWING & RECOVERY, dba ROUTH WRECKER SERVICE, EMPLOYER RESPONDENT CLEAR SPRING PROPERTY & CASUALTY CO./ SEDGWICK CLAIMS MANAGEMENT, CARRIER/TPA RESPONDENT OPINION FILED 16 SEPTEMBER 2024 Heard befo...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:49:05.426Z"},{"id":"alj-H304392-2024-09-16","awccNumber":"H304392","decisionDate":"2024-09-16","decisionYear":2024,"opinionType":"alj","claimantName":"Kenneth Martin","employerName":"Amazon.Com, Inc","title":"MARTIN VS. AMAZON.COM, INC. AWCC# 304392 September 16, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MARTIN_KENNETH_H304392_20240916.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARTIN_KENNETH_H304392_20240916.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No 304392 \n \nKENNETH MARTIN, EMPLOYEE       CLAIMANT \n \nAMAZON.COM, INC., EMPLOYER            RESPONDENT \n \nAMERICAN ZURICH INS. CO./ \nSEDGEWICK CLAIMS MNGMNT., CARRIER/TPA              RESPONDENT \n  \n \n \nOPINION FILED 16 SEPTEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 11 September 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nNewkirk & Jones, Mr. Rick Behring, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 11 September 2024. This case relates to an alleged workplace injury, \nsustained on or about 14 December 2024. A First Report of Injury was filed on 12 July 2023, \nnoting pain the claimant’s right wrist, and a Form AR-2 accepting the claim was filed the \nsame day. A Form AR-C was then filed by claimant’s counsel on 5 October 2023, listing \ninjuries to the claimant’s right arm and shoulder, neck, and other whole body. In an Order \ndated 25 June 2024, the Full Commission relieved the claimant’s counsel of his \nrepresentation before the Commission. See Exhibit No 1. \n On 8 July 2024, the respondents requested a dismissal of this matter for failure to \nprosecute the claim. Letters providing notice of that motion and notice of the hearing were \nsent to the claimant, consistent with the Commission’s practice. I noted at the hearing that \nmailings from the Commission to claimants are sent via both First Class and Certified Mail \n\nK. MARTIN- H304392 \n2 \n \nwith return receipts requested. Returned mail is regularly appended to the Commission’s \nfile. The Commission’s file includes only the return of one Certified Mailing, which notes it \nas unclaimed. \nThe respondents appeared on 11 September 2024, presented their motion, and \noffered supporting evidence into the record. As argued by the respondents at the hearing, \nthe file reflects no request for a hearing on a claim in the relevant time preceding the filing \nof their motion. And the claimant did not appear at the hearing to resist the dismissal of \nthis claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2890,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No 304392 KENNETH MARTIN, EMPLOYEE CLAIMANT AMAZON.COM, INC., EMPLOYER RESPONDENT AMERICAN ZURICH INS. CO./ SEDGEWICK CLAIMS MNGMNT., CARRIER/TPA RESPONDENT OPINION FILED 16 SEPTEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Admini...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["wrist","shoulder","neck"],"fetchedAt":"2026-05-19T22:49:07.496Z"},{"id":"alj-G708582-2024-09-13","awccNumber":"G708582","decisionDate":"2024-09-13","decisionYear":2024,"opinionType":"alj","claimantName":"Linda Bradley","employerName":"Pine Bluff School Dist","title":"BRADLEY VS. PINE BLUFF SCHOOL DIST. AWCC# G708582 September 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BRADLEY_LINDA_G708582_20240913.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRADLEY_LINDA_G708582_20240913.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G708582 \n \nLINDA K. BRADLEY, EMPLOYEE                 CLAIMANT \n \nPINE BLUFF SCHOOL DIST., EMPLOYER           RESPONDENT \n \nAR SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA        RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL  \nDISABILITY TRUST FUND,                         RESPONDENT NO. 2 \n  \n \n \nOPINION FILED 13 SEPTEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 12 September 2024 in Pine Bluff, Arkansas. \n \nThe claimant appeared pro se. \n \nWorley, Wood & Parrish, PA, Ms. Melissa Wood, appeared on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 12 September 2024. This case relates to a workplace injury, sustained \non or about 4 December 2017. A Full Hearing was conducted on 10 August 2023, addressing \nsome of the benefits requested by the claimant. A 17 November 2023 Opinion denied and \ndismissed those claims, and the Full Commission adopted and affirmed that decision on 12 \nApril 2024.  \n On 28 May 2024, the respondents requested a dismissal of the remaining claims for \nbenefits in this matter for failure to prosecute the claim. It was noted on the record that the \nclaimant’s previous counsel was relieved by the Full Commission on 23 May 2024. In a \nletter dated 11 June 2024 and filed on 14 June 2024, the claimant objected to the dismissal \nof her remaining claims. A hearing was then set for 12 September 2024.  \n\nL. BRADLEY- G708582 \n2 \n \n The parties appeared at the appointed time and discussed the matter’s current \nfooting and the respondents’ motion. The claimant stated that, as indicated in her letter, \nshe intends to move forward with the remaining claims for benefits that are possibly \navailable to her. She would like to seek the advice of counsel before moving forward on her \nown, but she understands that she has the right to proceed on her own behalf. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nsimilarly provides for a dismissal for failure to prosecute an action upon application by \neither party. Based on the record, the available evidence, and the arguments of the parties, \nI find that the respondents’ Motion to Dismiss should be denied without prejudice at this \ntime. \nORDER \n The Motion to Dismiss is DENIED WITHOUT PREJUDICE. This matter will move \ntowards litigating the benefits that may remain available to the claimant. As discussed at \nthe hearing, the claimant wishes to seek new representation to assist in her prosecution of \nher remaining claims. If she retains counsel, that should be communicated to Ms. Wood as \nsoon as possible. The parties should be prepared to confer within 30 days of the entry of this \nOrder so that scheduling and other prehearing matters may be addressed. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3105,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G708582 LINDA K. BRADLEY, EMPLOYEE CLAIMANT PINE BLUFF SCHOOL DIST., EMPLOYER RESPONDENT AR SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND, RESPONDENT NO. 2 OPINION FILED 13 SEPTEMBER 2024 Heard befor...","outcome":"dismissed","outcomeKeywords":["affirmed:1","dismissed:5","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:49:01.288Z"},{"id":"alj-H303152-2024-09-13","awccNumber":"H303152","decisionDate":"2024-09-13","decisionYear":2024,"opinionType":"alj","claimantName":"Rohn Butler","employerName":"Mcdonalds Restaurant/retzer Resources","title":"BUTLER VS. McDONALDS RESTAURANT/RETZER RESOURCES AWCC# H303152 September 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BUTLER_ROHN_H303152_20240913.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BUTLER_ROHN_H303152_20240913.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H303152 \n \nROHN BUTLER, EMPLOYEE                  CLAIMANT \n \nMcDONALDS RESTAURANT/RETZER RESOURCES,  \nEMPLOYER                   RESPONDENT \n \nSENTRY CASUALTY CO., CARRIER/TPA                 RESPONDENT \n  \n \n \nOPINION FILED 13 SEPTEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 12 September 2024 in Pine Bluff, Arkansas. \n \nThe pro se claimant did not appear. \n \nWorley, Wood & Parrish, PA, Ms. Melissa Wood, appeared on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 12 September 2024. This case relates to a workplace injury, sustained \non or about 6 April 2023. A Form AR-C was filed on 15 May 2023. A First Report of Injury \nwas filed on 19 May 2023, and a Form AR-2 was then filed on 22 May 2023. By way of a 3 \nMay 2024 Order, the Full Commission granted relief to the claimant’s counsel in this \nmatter, who requested to withdraw on 9 April 2024.  \n On 13 June 2024, the respondents requested a dismissal for the claimant’s failure to \nprosecute his claim. Letters were sent by the Commission to the claimant providing notice \nof the respondents’ motion on 20 June 2024 and notice of the hearing on that motion on 1 \nAugust 2024. In keeping with the Commission’s practice, those notice letters were sent via \nFirst Class Mail and Certified Mail with Return Receipts Requested. Also in keeping with \nthe Commission’s practice, returned mailings are included in a claimant’s file when \n\nR. BUTLER- H303152 \n2 \n \ncorrespondence comes back as undeliverable or unclaimed. I noted at the hearing that this \nfile contains no return of the First Class Mailings, but the Certified letters came back as \nunclaimed. Both letters to the claimant stated that the claimant need not appear if he did \nnot wish to object to the dismissal of this matter. \n The respondents appeared at the appointed time and presented evidence and \nargument in support of their motion. The claimant did not appear to resist the dismissal of \nthe matter. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nsimilarly provides for a dismissal for failure to prosecute an action upon application by \neither party. Based on the record, the available evidence, and the arguments presented at \nthe hearing, I find that the respondents’ Motion to Dismiss should be granted and that this \nmatter should be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this claim is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2856,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H303152 ROHN BUTLER, EMPLOYEE CLAIMANT McDONALDS RESTAURANT/RETZER RESOURCES, EMPLOYER RESPONDENT SENTRY CASUALTY CO., CARRIER/TPA RESPONDENT OPINION FILED 13 SEPTEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:49:03.356Z"},{"id":"alj-G305185-2024-09-12","awccNumber":"G305185","decisionDate":"2024-09-12","decisionYear":2024,"opinionType":"alj","claimantName":"Cynthia Forsgren","employerName":"Health Management Associates Inc","title":"FORSGREN VS. HEALTH MANAGEMENT ASSOCIATES INC. AWCC# G305185 September 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FORSGREN_CYNTHIA_G305185_20240912.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FORSGREN_CYNTHIA_G305185_20240912.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. G305185 \n \nCYNTHIA J. FORSGREN, EMPLOYEE CLAIMANT \n \nHEALTH MANAGEMENT ASSOCIATES INC., EMPLOYER RESPONDENT#1 \n \nLIBERTY MUTUAL GROUP, CARRIER RESPONDENT#1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND                  RESPONDENT#2 \n \n \n OPINION FILED SEPTEMBER 12, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER JR., Attorney, Fort Smith, Arkansas. \n \nRespondents #1 are represented by RICK BEHRING JR., Attorney, Little Rock, Arkansas. \n \nRespondent #2 is represented by CHRISTY L. KING, Attorney, Little Rock, Arkansas; although \nnot appearing at the hearing. \n \n \n STATEMENT OF THE CASE \n  \n On July 23, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on May 16, 2024, and a pre-hearing order was filed on that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.   The employee/employer/carrier relationship existed on March 18, 2012. \n            3.   Claimant sustained a compensable injury on March 18, 2012. \n\nForsgren-G305185 \n2 \n \n \n       4.   The respondents have controverted the claim regarding wage loss. \n       5.  The compensation rates are $574.00 for temporary total disability and $421.00 for permanent \npartial disability.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1.     Whether claimant is entitled to wage loss benefits. \n2.      Whether claimant is entitled to medical benefits. \n3.      Attorney fees. \nAt the hearing, the parties announced that issue #2 had been resolved and was not presented. \nAll other issues are reserved by the parties. \nThe claimant contends that “She returned to work following her compensable injuries and her \njob duties aggravated her symptoms. As a result of the impact of her job duties on her condition she \nrequested her employer to provide her with part-time work or at least work that she could perform \nwithout aggravating her condition and her employer refused to grant such request. As a consequence \nof  her  employer  failing  to  provide  job  accommodations  the  claimant  ended  up  leaving  that \nemployment.  The  permanent  restrictions  that  have  been  placed  on  the  claimant  as  a  result  of  her \ncompensable  injuries  negatively  impacts  her  access  to  the  labor  market  and  therefore  the  claimant \ncontends  that  she  is  entitled  to  wage  loss  disability.  The  claimant  contends  that  she  is  entitled  to \nreasonably  necessary  medical  treatment.  The  claimant  contends  that  her  attorney  is  entitled  to  an \nappropriate attorney’s fee.” \nRespondents #1 contend that “To date, all benefits to which the claimant is entitled have been \npaid and have not been controverted. The respondents accepted this claim as compensable. To date, \nthe  respondents  have  paid  for  all  reasonable  and  necessary  medical  treatment.  To  date,  the \n\nForsgren-G305185 \n3 \n \n \nrespondents  have  paid  all  appropriate  temporary  disability  benefits.  To  date,  the  respondents  have \npaid all appropriate permanent partial disability benefits related to permanent anatomical impairment \nratings  assigned  to  her  neck  (7%)  and  right  shoulder (6%).  The  claimant  returned  to  work  for  the \nrespondent employer. Upon information and belief, the respondent employer offered work within her \nrestrictions until her voluntary resignation/separation. The respondents are investigating this claim; \nhowever,  at  this  time,  the  respondents  contend  that  the  claimant  is  not  entitled  to  any  wage  loss \nbenefits. The respondents reserve the right to supplement and/or amend their contentions prior to \nthe full hearing.” \n Respondent  #2  contends that “The  Death  and  Permanent  Total  Disability  Trust  Fund \nreserves its right to identify the issues to be litigated upon completion of discovery.” \n            From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the witness \nand  to  observe her demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on May \n16, 2024 and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.  Claimant has met her burden of proving by a preponderance of the evidence that she has \nsuffered a loss in wage earning capacity in an amount equal to 15% to the body as a whole. \n \n FACTUAL BACKGROUND \n Following the hearing, I requested briefs from the parties on the issue of wage-loss disability. \nThose briefs were very much appreciated and are blue backed to the record of this case.  \n\nForsgren-G305185 \n4 \n \n \nHEARING TESTIMONY  \n \n Claimant  testified  that  in  2012, she  suffered  an admittedly compensable injury  to  her  neck, \nshoulder,  and  arm  while  employed  with  respondent  Health  Management Associates. Claimant \neventually received surgery on her shoulder which did not resolve her issues. She continued to have \nnumbness that radiated down her arm and into the palm of her hand.  \n Claimant was released to work but testified that she had trouble operating the mouse on the \ncomputer and caring for patients, such as hanging an I-V bag above her head and giving injections. \nAt the end of a twelve-hour shift, her neck and shoulders hurt. Claimant’s work was considered light \nduty  work  but she was  never  symptom  free  while  doing  that. When  she  was  switched  to  full  duty \nwork,  her condition worsened. She  reported  to  both  her  doctor  and  employer  that  she  was  having \nproblems  while  working  but  felt  there  was  nothing  being  done  to  help  her. She  resigned  her \nemployment  in December 2014. Claimant  was  seen  by  Dr.  Blankenship  after  Dr.  Harp  ordered  a \ncervical  MRI. Dr.  Blankenship  prescribed  a  course  of  physical  therapy,  medication,  some topical \ncream, and referred her to Dr. Cannon, a pain management specialist. Her condition improved when \nshe was not working but was still there. Dr. Blankenship suggested surgery would be appropriate, but \nclaimant wanted to avoid that unless it was her last resort. She believes resigning from her job helped \nher avoid having surgery on her neck. \n Since  her  resignation  in  2014,  claimant  has  not  worked  anywhere  and  has  not  sought \nemployment anywhere else.  As of the date of the hearing, claimant was sixty-five years old with an \nassociate degree in nursing from WestArk. She has worked as an RN since December 1979. \n Claimant made it clear that she was not claiming she was totally disabled and conceded it might \nbe possible for her to find some kind of part-time work if it was light duty. However, claimant has \nchosen  not  to  do  that  because  she  feared  ending  up  in  a situation where she  would  be  required  to \n\nForsgren-G305185 \n5 \n \n \nperform  duties  that  would  worsen  her  condition. Claimant  wants  to  avoid surgery, if  possible,  and \nbelieves not working is her safest way to do so. \n On cross examination, claimant said that prior to working as a nurse, she had worked in an \noffice  and  had  done  sales  for  a  hardware  store. Both  those  positions  required  her  to  work  on  a \ncomputer  and  answer  phones,  just  as  she  had  to  do  while  working  as  a  nurse. Claimant  said  that \nworking as an office clerk is something she does not want to do because it is boring. \n Claimant  agreed  that  Dr.  Harp  had  released  her  to  return  to  work  without  restrictions  in \nOctober 2013 and that she worked at full duty at that time until she resigned in December 2014. She \nearned the same wages after being released to return to full duty in October 2013 until she resigned \nin December 2014.  \nClaimant testified that her duties varied while working as an RN. Some of her nursing activities \nmade her symptoms worse, but others did not affect her at all. Claimant said she missed a few days of \nwork because of her arm before she resigned. Her job was modified to reduce her hours from twelve-\nhour shifts to eight-hour shifts. At the time she resigned, she was not under any work restrictions, and \nher position as an RN was still available to her. Claimant agreed that except for the fact she resigned, \nshe could still be at respondent HMA as of the date of the hearing.  \n Claimant conceded that when Dr. Harp released her regarding her right shoulder, he did not \nimpose any work restrictions on her. She stated that she had not returned to treatment for her right \nshoulder since she was released in March 2016. The work restrictions imposed by Dr. Blankenship \nincluded limiting lifting overhead to twenty-five pounds, which would have probably been within her \njob duties as an RN. She did not know if respondent HMA could have accommodated the restriction \nof “no prolonged hyperextension or extension of the neck,” because she had resigned before receiving \nthat restriction and thus never presented it to respondent HMA.  \n\nForsgren-G305185 \n6 \n \n \n Claimant stated that she takes Ibuprofen as needed for her pain and returns yearly to get an \ninjection from Dr. Cannon.  While Dr. Blankenship indicated early in her treatment that it was possible \nfor  her  to  have  surgery  on  her neck,  claimant agreed  that  nothing  in  the  records  since  that  time  \nsuggested that she needed surgery.  \n Claimant testified in the ten years since she resigned from HMA, she had not looked for a job \nor filled out an employment application with anyone, nor had she attempted any job retraining.  She \nsaid she had no plans to ever return to work. Claimant says that she cooks meals, walks, mops, dusts \nand  vacuums  occasionally.    She  has  no  driving  restrictions  and  participates  in  the  care  of  her \ngrandchildren, who were all under thirteen years of age. She volunteers at her church and she and her \nhusband have traveled extensively since she resigned. \n On redirect examination, claimant said that she was not doing physical work while she was on \nvacation and had the ability to control when she rested. She did not have that same flexibility while \nshe was  working  at  the  hospital. Claimant  testified  that  her resignation  in  2014  was  not  due  to  her \ndesire to travel.  She accrued vacation time while working and that vacation time would have been \nenough for her to take the trips that she has taken since she resigned. \n Claimant said she had not chosen Dr. Harp as her physician and that he did not do anything \nto help her get a lighter duty job, but instead released her to full duty.  It was Dr. Blankenship that put \nthe restrictions on her that Dr. Harp failed to place upon her. She felt she had no option but to resign \nbecause Dr. Harp was not helping her. Claimant said she has permanent restrictions for her shoulder \nand her neck. Her daily activities are affected by not doing things as quickly as she used to. She believes \nhaving a regular job would aggravate her condition. \n On recross examination, claimant did not know what modifications she could have been given \nto accommodate her physical problems. She was unwilling to accept a position that was not going to \n\nForsgren-G305185 \n7 \n \n \nallow her to work as an RN.  \n I found claimant to be a credible witness and a good historian as to what had taken place in \nthis matter over the past dozen years.  \n \nREVIEW OF THE EXHIBITS \n \n While  the  parties  submitted  ample  medical  records,  a  detailed  review  of  them  would  be \nsuperfluous. Claimant ably described her course of treatment, including the timeline that I will outline \nin the adjudication section of this opinion. The permanent impairment ratings were not contested and \nhave already been paid.  \n \nADJUDICATION \n \n The Commission is charged with the duty of determining disability based on a consideration \nof medical evidence and other factors affecting wage loss, such as the claimant's age, education, and \nwork  experience.  Motivation,  postinjury  income,  credibility,  demeanor,  and  a  multitude  of  other \nfactors are matters to be considered in claims for wage-loss-disability benefits in excess of permanent-\nphysical impairment. Cooper v. Univ. of Ark. for Med. Scis., 2017 Ark. App. 58, 510 S.W.3d 304. \n As mentioned above, I find the timeline of claimant’s treatment to be relevant in weighing the \nevidence in this case.  \n1. She  was  first  treated  by Dr.  Harp for  a  right  shoulder  injury,  including  surgery on  June  18, \n2013.  \n2. Dr. Harp declined to give claimant an injection in her shoulder on October 21, 2023, releasing \nher claimant to full duty.  He repeated that release on December 18, 2023.  \n3. Despite that release, she continued being treated by Dr. Harp for the next year. On March 14, \n2024, he recorded that “the patient specifically requests that we proceed with an MRI on her \n\nForsgren-G305185 \n8 \n \n \nshoulder and cervical spine to evaluate for continued symptoms,” and he concurred such could \nbe useful.  \n4. At the June 13, 2014, visit, Dr. Harp noted that the request for cervical spine X-rays had not \nbeen authorized, and he again recommended such. This entry refers to claimant undergoing \ntherapy on her neck.  \n5. On November 10, 2014, the results of an MRI were discussed in Dr. Harp’s notes; there is a \nprotrusion on the right side at C4-5. He discussed with claimant a surgical referral, but issued \nher a note to return to work at full duty with no restrictions.  \n6. On December  1,  2014,  claimant  resigned her  employment,  citing  her  neck  and  right  arm \ninjuries. She stated that her request for job modification had been denied. \n7. On March 9, 2015, claimant began seeing Dr. Blankenship for her neck injury. She continues \nto treat with his clinic, seeing him, Dr. Cannon, or as in the most recent visit being April 29, \n2024, APRN  Rhonda  Findley. A  new  MRI  was  recommended  and  a  return  visit  to  Dr. \nBlankenship for  evaluation  was  mentioned. At  that  last  visit,  claimant stated  her  neck \ncondition was getting worse. \n  As I said above, I found claimant to be a credible witness, in large part because she testified \nto matters that did not help her case. She admitted that she has not looked for any kind of work since \nshe resigned from respondent in 2014. She convinced me that if she was not able to work as an RN, \nshe was not interested in another job within her physical limitations.  \n “Although a lack of interest in pursuing employment impedes the assessment of the claimant's \nloss of earning capacity, it is not a complete bar.”  Ark. DOT v. Abercrombie, 2019 Ark. App. 372. In \nher  post-trial  brief,  claimant requested a  wage  loss  disability  of  30%-40%. I  recognize “there  is  no \nexact formula for determining wage loss,” Hixon v. Baptist Health, 2010 Ark. App. 414. Had claimant \n\nForsgren-G305185 \n9 \n \n \ngone back to work at some type of employment and earned considerably less than she made as an RN \nat the time she resigned, I would have had a more precise measure for what her wage loss disability \nshould be.  However, I understand why she resigned when she did, given Dr. Harp’s release to full \nduty despite the disc protrusion in her neck that he was not treating. While her failure to seek other \nemployment in the years since demonstrates a lack of motivation to return to the workforce, that alone \ndoes  not  bar  claimant  from  receiving some  degree of  wage  loss  benefits.  After considering all  the \nfactors set forth in the first paragraph of this section of this opinion, I am satisfied that claimant has \nproven she has a wage loss disability of 15% above her physical impairment ratings.  \nORDER \n \n Claimant  has  met  her burden  of  proving  by  a  preponderance  of  the  evidence  that she  has \nsuffered a loss in wage earning capacity in an amount equal to 15% to the body as a whole. Respondent \nhas  controverted  claimant's  entitlement  to  payment  of  permanent  partial  disability  benefits  in  an \namount equal to 15% based upon this loss in wage earning capacity. \nPursuant to A.C.A. § 11-9-715(a)(1)(B), claimant's attorney is entitled to an attorney fee in the \namount of 25% of the compensation for indemnity benefits payable to the claimant. Thus, claimant's \nattorney is entitled to a 25% attorney fee based upon the indemnity benefits awarded. This fee is to \nbe paid one-half by the carrier and one-half by the claimant. \nRespondent is liable for payment of the court reporter's charges for preparation of the hearing \ntranscript in the amount of $ 637.45. \nAll sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":17493,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G305185 CYNTHIA J. FORSGREN, EMPLOYEE CLAIMANT HEALTH MANAGEMENT ASSOCIATES INC., EMPLOYER RESPONDENT#1 LIBERTY MUTUAL GROUP, CARRIER RESPONDENT#1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT#2 OPINION FILED SEPTEMBER 12, 2024 Hearing before ADM...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["neck","shoulder","cervical","back"],"fetchedAt":"2026-05-19T22:48:50.796Z"},{"id":"alj-H308145-2024-09-12","awccNumber":"H308145","decisionDate":"2024-09-12","decisionYear":2024,"opinionType":"alj","claimantName":"Raymond Kagebein","employerName":"Bigham Brothers, Inc","title":"KAGEBEIN VS. BIGHAM BROTHERS, INC. AWCC# H308145 September 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/KAGEBEIN_RAYMOND_K_H308145_20240912.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KAGEBEIN_RAYMOND_K_H308145_20240912.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H308145 \n \nRAYMOND K. KAGEBEIN, EMPLOYEE      CLAIMANT \n \nBIGHAM BROTHERS, INC., EMPLOYER           RESPONDENT \n \nSENTRY CASUALTY CO., CARRIER/TPA             RESPONDENT \n  \n \n \nOPINION FILED 12 September 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 4 September 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nMr. Jarrod Parrish, Worley, Wood & Parrish, appeared on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 4 September 2024. This case relates to an alleged workplace injury, \nsustained on or about 8 December 2023. The claimant filed a Form AR-C on 18 December \n2023 alleging a wrist injury. A First Report of Injury was filed on 5 January 2024, and a \nForm AR-2 was filed that same day. By way of an Order dated 25 June 2024, the Full \nCommission granted a motion for withdrawal filed by Claimant’s counsel on 14 May 2024. \nSee Respondent’s Exhibit No 1. \n On 2 July 2024, the respondents requested a dismissal of this matter for failure to \nprosecute the claim. A letter from the Commission to the claimant communicating that \nmotion’s filing was dated 9 July 2024, and another letter setting a hearing on the motion \nwas dated 1 August 2024. Those letters provide notice that the claimant was not required to \nappear if he did not object to the dismissal of the claim. Copies of those letters are included \n\nR. Kagebein- H308145 \n2 \n \nin Respondent’s Exhibit No 1, and the Commission’s file is absent any response from the \nclaimant. I noted at the hearing that mailings from the Commission to claimants are sent \nvia both First Class and Certified Mail with return receipts requested. Returned mail is \nregularly appended to the Commission’s file. This claim file includes only a return of the \nCertified Mailings, indicating that the letters were unclaimed or undeliverable to the \naddressee. The First Class letters were not returned as undeliverable. \nThe respondents appeared on 4 September 2024, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of their \nmotion. And the claimant did not appear to resist the dismissal of this claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3158,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H308145 RAYMOND K. KAGEBEIN, EMPLOYEE CLAIMANT BIGHAM BROTHERS, INC., EMPLOYER RESPONDENT SENTRY CASUALTY CO., CARRIER/TPA RESPONDENT OPINION FILED 12 September 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge J...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T22:48:52.869Z"},{"id":"alj-H206879-2024-09-12","awccNumber":"H206879","decisionDate":"2024-09-12","decisionYear":2024,"opinionType":"alj","claimantName":"Carolyn Macon","employerName":"Georgia Pacific, LLC","title":"MACON VS. GEORGIA PACIFIC, LLC. AWCC# H206879 September 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MACON_CAROLYN_H206879_20240912.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MACON_CAROLYN_H206879_20240912.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H206879 \n \nCAROLYN W. MACON, EMPLOYEE                 CLAIMANT \n \nGEORGIA PACIFIC, LLC., EMPLOYER           RESPONDENT \n \nOLD REPUBLIC INSURANCE CO./ESIS, INC. CARRIER/TPA       RESPONDENT \n  \n \n \nOPINION FILED 12 SEPTEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 4 September 2024 in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nMr. Rick Behring, Newkirk & Jones, appeared on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 4 September 2024. This case relates to an alleged workplace injury, \nsustained on or about 20 July 2022. The claimant filed a Form AR-C on 23 September 2022 \nalleging a right side injury from her lower back to toe. A First Report of Injury was filed on \n30 September 2022, and a Form AR-2 was filed on 5 October 2022 accepting the claim.  \n On 12 July 2024, the respondents requested a dismissal of this matter for failure to \nprosecute the claim, noting that nearly two years passed without a bona fide request for a \nhearing on a matter requiring adjudication. A letter from the Commission to the claimant \ncommunicating that motion’s filing was dated 16 July 2024, and another letter setting a \nhearing on the motion was dated 13 August 2024. Those letters provide notice that the \nclaimant was not required to appear if she did not object to the dismissal of the claim.  \n\nC. MACON- H206879 \n2 \n \nI noted at the hearing that mailings from the Commission to claimants are sent via \nboth First Class and Certified Mail with return receipts requested. Returned mail is \nregularly appended to the Commission’s file. This claim file includes only a return of one of \nthe Certified Mailings, indicating that it was unclaimed. The First Class letters were not \nreturned as undeliverable. \nThe respondents appeared on 4 September 2024, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of their \nmotion. And the claimant did not appear to resist the dismissal of this claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3002,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H206879 CAROLYN W. MACON, EMPLOYEE CLAIMANT GEORGIA PACIFIC, LLC., EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE CO./ESIS, INC. CARRIER/TPA RESPONDENT OPINION FILED 12 SEPTEMBER 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrati...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:48:54.993Z"},{"id":"alj-H401756-2024-09-12","awccNumber":"H401756","decisionDate":"2024-09-12","decisionYear":2024,"opinionType":"alj","claimantName":"Edgardo Salamanca","employerName":"P 3 Elite Logistics LLC","title":"SALAMANCA VS. P 3 ELITE LOGISTICS LLC AWCC# H401756 September 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SALAMANCA_EDGARDO_H401756_20240912.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SALAMANCA_EDGARDO_H401756_20240912.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H401756 \n \nEDGARDO SALAMANCA, EMPLOYEE   CLAIMANT \n \nP 3 ELITE LOGISTICS LLC, EMPLOYER RESPONDENT \n \nSUMMIT CONSULTING LLC/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED SEPTEMBER 12, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by ZACHARY F. RYBURN, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  March 11, 2024, claimant filed Form AR-C, alleging a compensable injury on December \n19, 2024.   Claimant was represented at the time by Gary Davis, who filed a Motion to Withdraw on \nMay 29, 2024 and was allowed to withdraw on June 20, 2024.  No other attorney entered an appearance \non claimant’s behalf.   \nOn June 21, 2024, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time. A hearing on respondent’s Motion to Dismiss was scheduled for September \n5,  2024.    Notice  of  the  scheduled  hearing  was  sent  to claimant  by  certified  mail  at  the  last known \naddress in the Commission’s file.  The notice was returned “no mail receptacle unable to forward” on \nAugust 26, 2024    Claimant did not respond to respondent’s motion and did not appear in person at \nthe hearing on September 5, 2024.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nSalamanca-H401756 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2232,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401756 EDGARDO SALAMANCA, EMPLOYEE CLAIMANT P 3 ELITE LOGISTICS LLC, EMPLOYER RESPONDENT SUMMIT CONSULTING LLC/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED SEPTEMBER 12, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washin...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:48:57.137Z"},{"id":"alj-H302383-2024-09-12","awccNumber":"H302383","decisionDate":"2024-09-12","decisionYear":2024,"opinionType":"alj","claimantName":"Madelyn Spence","employerName":"Perimeter Behavioral Health","title":"SPENCE VS. PERIMETER BEHAVIORAL HEALTH AWCC# H302383 September 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SPENCE_MADELYN_H302383_20240912.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SPENCE_MADELYN_H302383_20240912.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H302383 \n \nMADELYN C. SPENCE, EMPLOYEE   CLAIMANT \n \nPERIMETER BEHAVIORAL HEALTH, EMPLOYER RESPONDENT \n \nUNITED WISCONSIN INSURANCE COMPANY/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED SEPTEMBER 12, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is represented by JASON L. WATSON, Attorney, Fayetteville, Arkansas. \n \nRespondents are represented by JAMES A. ARNOLD II, Attorney, Fort Smith, Arkansas \n \nOPINION/ORDER \n \n On  April 12, 2023, claimant filed Form AR-C, alleging a compensable injury on December \n5,  2022.   Claimant  was  represented  at  the  time  by Jason  L.  Watson,  who  remains her attorney  of \nrecord.     \nOn June 11, 2024, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but she had not made a request \nfor  a  hearing  in  that  time.   Claimant’s attorney advised the Commission he cannot  agree  with  the \ndismissal but would  not  attend  the  hearing.    A  hearing  on respondent’s Motion to Dismiss was \nscheduled for August 29, 2024.  Notice of the scheduled hearing was sent to claimant by certified mail \nat the last known address in the Commission’s file.  The notice was returned unclaimed on August 2, \n2024.  Claimant did not respond to respondent’s motion and did not appear in person at the hearing \non August 29, 2024.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nSpence-H302383 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2240,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302383 MADELYN C. SPENCE, EMPLOYEE CLAIMANT PERIMETER BEHAVIORAL HEALTH, EMPLOYER RESPONDENT UNITED WISCONSIN INSURANCE COMPANY/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED SEPTEMBER 12, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in S...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:48:59.210Z"},{"id":"full_commission-H202720-2024-09-11","awccNumber":"H202720","decisionDate":"2024-09-11","decisionYear":2024,"opinionType":"full_commission","claimantName":"William Middleton","employerName":"L & L Metal Fabrication, Inc","title":"MIDDLETON VS. L & L METAL FABRICATION, INC. AWCC# H202720 September 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Middleton_William_H202720_20240911.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Middleton_William_H202720_20240911.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H202720 \n \nWILLIAM L. MIDDLETON, EMPLOYEE  CLAIMANT \n \nL & L METAL FABRICATION, INC., EMPLOYER RESPONDENT \n \nAMERISURE INSURANCE COMPANY,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED SEPTEMBER 11, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MATTHEW J. KETCHAM, \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n The claimant appeals an administrative law judge’s opinion filed \nNovember 30, 2023.  The administrative law judge entered the following \nfindings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at a pre-hearing \nconference conducted on April 13, 2023, and contained in a pre-\nhearing order filed that same date are hereby accepted as fact.   \n \n2.  Claimant is barred from pursuing this matter because he elected \na remedy in civil court and resolved that matter via a settlement. \n \n After reviewing the entire record de novo, it is our opinion that the \nadministrative law judge’s decision is supported by a preponderance of the \n\n \nMIDDLETON - H202720  2\n  \n \n \nevidence, correctly applies the law, and should be affirmed.  Therefore we \naffirm and adopt the administrative law judge’s November 30, 2023 decision \nas the opinion of the Full Commission on appeal.  See SSI, Inc. v. Cates, \n2009 Ark. App. 763, 350 S.W.3d 421.   \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1904,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H202720 WILLIAM L. MIDDLETON, EMPLOYEE CLAIMANT L & L METAL FABRICATION, INC., EMPLOYER RESPONDENT AMERISURE INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 11, 2024 Upon review before the FULL COMM...","outcome":"affirmed","outcomeKeywords":["affirmed:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.955Z"},{"id":"alj-H308104-2024-09-11","awccNumber":"H308104","decisionDate":"2024-09-11","decisionYear":2024,"opinionType":"alj","claimantName":"Ptaricia Castellano","employerName":"Integrity, Inc","title":"CASTELLANO VS. INTEGRITY, INC. AWCC# H308104 September 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Castellano_Ptaricia_H308104_20240911.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Castellano_Ptaricia_H308104_20240911.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H308104 \n \nPATRICIA CASTELLANO, \nEMPLOYEE                                                                                                              CLAIMANT \n \nINTEGRITY, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nATA WORKERS’ COMP. SI TRUST, \nCARRIER                                                                                                             RESPONDENT \n \nRISK MANAGEMENT RESOURCES, \nTPA                                                                                                                       RESPONDENT \n \n \nOPINION FILED SEPTEMBER 11, 2024 \n \nHearing conducted on Tuesday, September 10, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Patricia Castellano, pro se, of Jacksonville, Arkansas, did not appear in person \nat the hearing.  \n \nThe Respondents were represented by the Honorable Carol Worley, Little Rock, Arkansas. The \nHonorable Melissa Wood, law partner of Ms. Carol Worley, argued the motion. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on September 10, 2024, in Little Rock, Arkansas. No testimony was taken \nin  the  case.  Claimant, who according  to  Commission  records  is pro  se, failed  to  appear  at  the \nhearing. \nThe  Claimant  worked  for  the  Respondent/Employer  as  a delivery  driver. The date  for \nClaimant’s  alleged injury   was   on December 1,   2023. She   reported   her injury   to \nRespondent/Employer on December 4, 2023. Admitted into evidence was Respondents Exhibit 1, \npleadings and correspondence,  consisting  of 10 pages. I  have  also  blue-backed Form  AR-1, a \n\nCASTELLANO, AWCC No. H308104 \n \n2 \n \ncertified return receipt dated July 13, 2023, copy of certified envelope received August 29, 2024, \nand copy of hearing notice, as discussed infra. \nThe record reflects on December 15, 2023, a Form AR-1 was filed with the Commission \npurporting that claimant was a Direct Care Supervisor for Respondent/Employer. That she injured \nherself when, at a client’s home while getting out of bed to use the restroom, she slipped, fell, and \ninjured  her  right  foot. On December  18, 2023,  a  Form  AR-2 was  filed  in  this  case, denying \ncompensability of the claim. On January 2, 2024, Claimant filed a Form AR-C through her then-\nattorney, Mark Peoples, purporting an alleged foot and knee injury. Attorney Carol Worley entered \nher appearance on behalf of the Respondents on January 9, 2024. Attorney Peoples filed a Motion \nto Withdraw as Counsel that was granted on April 15, 2024, citing differences of opinions in how \nto prosecute claim. This motion was granted by the Full Commission on May 3, 2024. \nThe Respondents next filed a Motion to Dismiss on July 9, 2024, requesting this claim be \ndismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. Mail, notice \nof the Motion to Dismiss from my office on July 11, 2024, her last known address. The certified \nnotice was claimed by Claimant on July 13, 2024. Also, the notice sent regular U.S. Mail was not \nreturned to the Commission. Claimant did not respond to the notice in writing as required. Thus, \nin accordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice \nof Respondents’ Motion to Dismiss hearing date at her current address of record via the United \nStates Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and regular \nFirst-Class  Mail,  on August 7,  2024.  The  certified notice  was returned  to  the  Commission \nunclaimed but the regular First-Class mail notices were not returned. The hearing took place on \nSeptember 10, 2024. As mentioned before, the Claimant did not show up to the hearing. \n \n\nCASTELLANO, AWCC No. H308104 \n \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant and  Respondents  both  had  reasonable  notice of  the September 10, \n2024, hearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith reasonable notice, on the Respondents’ Motion to Dismiss. Though the hearing notice was \nunclaimed and returned to the Commission on August 29, 2024, the same notice was also sent to \nthe Claimant’s address of record by First-Class U.S. Mail on May 10, 2024, and did not return to \nthe  Commission.  The  Claimant  is  responsible  for  providing  the  Commission  with  her current \naddress. The  Commission  is  responsible  for  providing  reasonable  notice  of  a  hearing  to  the \nClaimant.  Sending  a  hearing  notice  to  the  last  known  address  that  was  provided  to  it  by  the \nClaimant is reasonable. Thus, I find by the preponderance of the evidence that reasonable notice \nwas given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  her Form  AR-C  on \n\nCASTELLANO, AWCC No. H308104 \n \n4 \n \nJanuary 2, 2024. Since then, Claimant has not made a demand for a hearing or has taken any other \naction in furtherance of this claim. In this regard, the Claimant has failed to do the bare minimum \nin prosecuting her claim. Therefore, I do find by the preponderance of the evidence that Claimant \nhas  failed  to  prosecute  her claim by failing to request a hearing. Thus, Respondents’ Motion to \nDismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is denied. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6757,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H308104 PATRICIA CASTELLANO, EMPLOYEE CLAIMANT INTEGRITY, INC., EMPLOYER RESPONDENT ATA WORKERS’ COMP. SI TRUST, CARRIER RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED SEPTEMBER 11, 2024 Hearing conducted on Tuesday, September 10, 2024, be...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2","denied:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:48:46.631Z"},{"id":"alj-H305274-2024-09-11","awccNumber":"H305274","decisionDate":"2024-09-11","decisionYear":2024,"opinionType":"alj","claimantName":"Breaunna Davis","employerName":"Jefferson Regional Medical Center","title":"DAVIS VS. JEFFERSON REGIONAL MEDICAL CENTER AWCC# H305274 September 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DAVIS_BREAUNNA_H305274_20240911.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVIS_BREAUNNA_H305274_20240911.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H305274 \n \nBREAUNNA DAVIS, EMPLOYEE        CLAIMANT \n \nJEFFERSON REGIONAL MEDICAL CENTER, EMPLOYER        RESPONDENT \n    \nJEFFERSON HOSPITAL ASSOCIATION, INC./ \nRISK MANAGEMENT RESOURCES, CARRIER/TPA        RESPONDENT \n \n \nOPINION FILED 11 SEPTEMBER 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 13 June 2024 in Pine Bluff, Arkansas. \n \nMr. Mark Alan Peoples for the claimant. \n \nWorley, Wood & Parrish, PA, Ms. Melissa Wood, for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 13 June 2024 in Pine Bluff, Arkansas. The \nparties participated in a pre-hearing telephone conference on 23 April 2024. A Prehearing \nOrder, admitted to the record without objection as Commission’s Exhibit No 1, was entered \non 24 April 2024. \nThe Order stated that the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  The employee/employer/carrier-TPA relationship existed at all relevant times, \nincluding 10 August 2023, the date of the allegedly compensable injury to the claimant’s \nankle. \n3.  The claimant’s average weekly wage at the time was $567.21, which would entitle \nher to Temporary Total Disability (TTD) and Permanent Partial Disability (PPD) benefits \nin the amounts of $378 per week and $284 per week, respectively.  \n4.  The respondents have controverted this claim in its entirety. \n\nB. DAVIS- H305274 \n2 \n \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire \nResponses, were incorporated into the Prehearing Order.  \nPer the claimant’s CONTENTIONS, she sustained a compensable work injury to her \nleft ankle on 10 August 2023, she is entitled to TTD benefits from that date until November \nof 2023, she is entitled to medical treatment, and her attorney is entitled to the maximum \nstatutory fees. \nPer the respondents’ CONTENTIONS, the claimant did not sustain a compensable \ninjury on 10 August 2023 or at any other time during the working relationship. The \nclaimant was engaged in horseplay and was not in the course and scope of her employment \non 10 August 2023 when she injured her left ankle. \nThe Order also set forth the following ISSUES TO BE LITIGATED: \n1.  Whether the claimant suffered a compensable injury. \n2.  Whether the claimant is entitled to TTD benefits. \n \n3.  Whether the claimant is entitled to reasonable and necessary medical treatment and \npayment/reimbursement for medical expenses and mileage. \n \n4.  Whether the claimant is entitled to an attorney’s fee. \n \nAll other issues were reserved. \n \nThe following WITNESSES testified at the hearing: the claimant testified on her \nown behalf, while the respondents called Mr. Ed Jones, the claimant’s former supervisor, \nand Ms. Zoey Harris, the claimant’s former coworker. \nThe EVIDENCE presented consisted of the testimony along with Commission’s \nExhibit No 1 (the 24 April 2024 Prehearing Order), Claimant’s Exhibit No 1 (thirteen pages \nof medical records), and Respondents’ Exhibit Nos 1 (six pages of medical records) and 2 (ten \npages of non-medical records, including a disc with security footage of the incident). The \ndocuments in Respondents’ Exhibit No. 2 are detailed below. \n\nB. DAVIS- H305274 \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the \nwitnesses, observing their demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously-noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that she suffered a \ncompensable injury. \n \n4. The claimant failed to prove by a preponderance of the evidence that she is entitled \nto an attorney’s fee. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \nClaimant Breaunna Davis \nThe claimant testified that she had been working in materials management at \nRespondent Jefferson Regional Medical Center (JRMC) for about two years before her \nworkplace incident. Her responsibilities included taking supplies to various patient care \nareas and other duties as assigned. The central supply area was located in the hospital’s \nbasement, where she would start her shifts, receive area assignments, and collect supplies \nbefore delivering them to her assigned area. \nOn 10 August 2023, the claimant was working a shift that ran from 6:00 AM to 3:00 \nPM. She recalled hurting her ankle around 9:00 AM. After finishing with delivering the \nsupplies from one of her carts and then getting some breakfast, the claimant went looking \nfor a coworker on the second floor. According to the claimant, she hurt her ankle shortly \nafter helping the coworker with her supply cart.  \nQ:  All right. And did you help Pam? \nA:  Yes, sir. \nQ:  All right. What happened next? \n\nB. DAVIS- H305274 \n4 \n \nA:  And then, I saw somebody I knew. I stopped to say hi and to see how they \nwere doing. And then, as I was walking away my left ankle twisted inward \nand I heard a loud pop. \nQ:  And this was on the second floor? \nA:  Yes, sir. \nQ:  Okay. Who did you see that you said hi to? \nA:  Zoey. \n \n[TR at 17.] \n The claimant said that about 15 minutes passed between helping Pam with her cart \nand then hurting her ankle on the way back to the basement to return to her work duties. \nAbout an hour later someone noticed that she’d taken her left shoe off and asked if she was \nokay. She then presented to the hospital’s emergency department and reported the injury to \nher supervisors. The claimant was diagnosed with a small broken bone and received some \nadditional treatment after the emergency department visit and before her claim was denied \nfor any further benefits. She continued seeking treatment on her own for some time, but \nsurgery was not required.  \n The claimant’s examination continued: \n Q:  You don’t work at Jefferson Regional anymore, do you? \n A:  No, sir. \n Q:  Why not? \n A:  I do not recall. \n Q:  Did they fire you or did you quit? \n A:  I believe they fired me. \n Q:  Do you know why? \n A:  No, sir. \n \n[TR at 23.] She went on to say that after separating from the respondent’s employment, she \nbegan working as a paid caretaker for her grandmother in November of 2023, making $350 \nevery two weeks. She did not experience difficulty working with her grandmother because \nof her injury, and she stated that if she were able to return to JRMC, she could perform the \nnecessary job duties. \n\nB. DAVIS- H305274 \n5 \n \n On cross examination the claimant testified that she was at the nurse’s station to \nask Zoey about a note behind the nurse’s desk; but she could not recall what the note was \nabout. Testifying about her deposition, the claimant stated: \nQ:  I, then, asked you in the deposition, “Did you ask Zoey about the note,” \nand your response was, “Not that I recall,” is that correct? \n A:  Yes, ma’am. \nQ:  I said, “Why not?” You said, “I don’t remember. I do not recall.” Is that \ncorrect? \n A:  Yes, ma’am. \nQ:  You, then, went on to say that you didn’t recall if you had any \nconversations with any nurses or nurse’s aides at the station about the note, \nis that right? \n A:  Yes, ma’am. \nQ:  You indicated that you had a question about some item that was located \non your phone, is that right? \n A:  Yes, ma’am. \n \n . . .  \nQ:  I asked you what else you talked with her about; you said you didn’t \nremember, is that correct? \n A:  Yes, ma’am. \nQ:  But you’ve told us that you were there in that area talking with Zoey for \nabout 15 minutes, is that right? \n A:  Yes, ma’am. \nQ:  I asked you in your deposition, “Did you touch Zoey?” you replied, “Yes, \nma’am.” Is that correct? \n A:  Yes, ma’am. \nQ:  I said, “What did you touch her for?” you said, “I gave her a hug.” Is that \nright? \n A:  Yes, ma’am. \nQ:  I said, “Did you touch her breast?” You responded, “No, ma’am.” Is that \ncorrect? \n A:  Yes, ma’am. \n \n . . . \nQ:  I asked you in the deposition, “If we have a statement from Ed Jones \nindicating that you were not supposed to be on the ICU floor, what would you \nsay in response?” And you indicated, “I would say that was, probably, \ncorrect,” end quote. Is that right? \n A:  Yes, ma’am. \n \n[TR at 29-31.] \n\nB. DAVIS- H305274 \n6 \n \n Discussing her treatment after the injury, the claimant stated that she participated \nin physical therapy and wore a boot for approximately three months. She confirmed that \nsurgical repair was not indicated and that she was released to full duty on 5 January 2024. \n Returning to her earlier testimony, the claimant reiterated: \nQ:  And it’s your testimony that you don’t know whether or not you were \nterminated? \n A:  Yes, ma’am. \n Q:  You don’t know? \n A:  Yes, ma’am. \n \n. . . \nQ:  I asked you on page 36 of your [5 February 2024] deposition, “Are you \nbeing paid to help her?” Your response was, “No, ma’am.” Is that correct? \n A:  Yes, ma’am. \n Q:  But today you’ve told us you, actually, started getting paid in November? \nA:  Yes, ma’am. They pre – they had looked over her care and approved her \nfor a home care nurse. \n Q:  So when did you receive payments and for how long? \nA:  I received payments for two months and I don’t recall the date that it \nstarted. \n Q:  And again, how much were you paid? \n A:  Every two weeks, 350. \n \n[TR at 33-35.] \n The claimant’s cross examination went on to cover the Form N entered into the \nrecord with Respondent’s Exhibit No. 2. \n Q:  ... Do you recognize this document? \n A:  Yes, ma’am. \n Q:  Is that something that you filled out? \n A:  Yes, ma’am. \nQ:  Okay. In this middle section here it says, “What part of your body was \ninjured?” And that says, “Left ankle.”? \n A:  Yes, ma’am. \n Q:  And right below it, tell us what that says. \n A:  Lady ran over my toes. \n Q:  Is that something that, actually, happened? Did someone run over your toes? \n A:  Yes, ma’am. \n Q:  This is how you hurt yourself? \n A:  That was a portion of it. \n \n[TR at 36.] \n\nB. DAVIS- H305274 \n7 \n \nRespondents’ Witness Ed Jones \n Mr. Jones testified that he works as the manager of central supply and inventory \ncontrols at Jefferson Regional Medical Center and in that role, the claimant’s direct \nsupervisor reported to him. He acknowledged that a written statement introduced in \nRespondent’s Exhibit No. 2 was a writing that he provided to JRMC in response to a \nrequest from their human resources department. According to the statement, the claimant \nwas outside of her assigned work area when she was injured. Mr. Jones confirmed in his \ntestimony that the claimant was not supposed to have been in the work area where her \ninjury occurred.  \n Mr. Jones also relayed his recollection of the video footage of the nursing area \nwhere the claimant hurt herself. He stated that he provided the footage to JRMC’s HR \ndepartment. Mr. Jones testified that the video did not show the claimant performing any \nwork activities, but that he was not involved in the decision to terminate the claimant’s \nemployment. \nOn cross examination, Mr. Jones stated that it was not prohibited or uncommon for \nemployees to assist each other in carrying out work duties. \nOn redirect examination, Mr. Jones testified that Pam was not present in the area \nwhere the claimant was hurt. He further testified that the claimant should have returned \nto the central supply area for further work assignments after completing her supply \ndeliveries. \nRespondents’ Witness Zoey Harris \n Ms. Harris testified that she works as a patient care technician at JRMC and that it \nwould be fair to say that she and the claimant were friends or acquaintances during the \ntime that they worked together. Relaying what she recalled of August 10\nth\n, she explained: \n\nB. DAVIS- H305274 \n8 \n \nA:  Okay. So I was charting on my computer, and then, I felt somebody come \nup behind me and put me in a kind of like a choke hold, but not hard. She put \nher arm around my neck, and then, like I felt my – I got groped. Okay. And \nthen, I turned around and I saw it was her, but I was still kind of \nuncomfortable, ‘cause I don’t like being touched no way. And then, she kind of \npointed like a gun kind of with her fingers and pointed it up to, like, to my \nhead, and then, swiped my head. \n Q:  So not a real gun? \n A:  Oh, no, no. \n Q:  Just her fingers? \n A:  Yeah, just her fingers. \n Q:  Okay were you uncomfortable with this? \n A:  Yes. \n \n[TR at 46-47.] \n Ms. Harris then confirmed that she authored a statement made part of the record in \nRespondents’ Exhibit No. 2. She testified that the claimant did not speak to her about \nanything work related. \n Q:  At one point she seems to show you her phone, do you remember that? \n A:  Yes. \n Q:  Do you— \n A:  It was like a song. It was like a song that she was trying to show me. \nQ:  During the conversation that you had with her, after she hugged you, did \nshe ask you anything or talk about anything work related? \n A:  No. \n \n[TR at 48.] \n On cross examination, Ms. Harris testified that she was not made aware of the \nclaimant’s injury until she was contacted about the matter by HR a few days later. \nRecords and Video Evidence \n Respondents’ Exhibit No. 2 included the following: (1) video footage of the incident; \n(2) the Form AR-N signed by the claimant; (3) the written statement of Zoey Harris; (4) the \nwritten statement of Ed Jones; (5) a termination letter signed by Employee Relations \nSpecialist Robin Munn; and (6) an HR document packet noting the claimant’s termination. \n(1) Having reviewed the video, I note the following: \n\nB. DAVIS- H305274 \n9 \n \na. The video displays a runtime of 3:23 (three minutes, twenty-three \nseconds). \nb. The foreground of the video shows the desk of the nurse’s station \nextending from the bottom to the top of the frame. Patient rooms wrap \naround the exterior of the space and the nurse’s station. The nurse’s \nstation area extends through the middle and background of the frame, \nwith work stations, an enclosed office space, and a corridor in the middle \nof the nurse’s station that leads “away” from the area towards the interior \nof the building. \nc. Zoey Harris is seated at the nurse’s station, eating in front of a computer. \nAnother employee is seated to her right. \nd. 00:10- the claimant enters the frame through the corridor and puts Ms. \nHarris in a headlock. \ne. 00:14- claimant releases the headlock and leans over Ms. Harris’ \nshoulders, resting her right arm across Ms. Harris’ chest and her right \nhand over Ms. Harris’ left breast. \nf. 00:26- the claimant stands up from leaning across Ms. Harris and moves \nher hand away from Ms. Harris’ breast, while talking and gesturing with \nher hands out, as if asking a question to the room. \ng. 00:56- Ms. Harris continues eating while the claimant stands beside her, \nboth looking at something on Ms. Harris’ phone, which is on the desk to \nthe left of her food. \nh. 01:09- the claimant puts her phone on the desk beside Ms. Harris’ while \nsomething appears to be playing on the screen. The claimant appears to \nsing and dance along with whatever is playing on her phone. \n\nB. DAVIS- H305274 \n10 \n \ni.  01:45- another employee enters the frame, and the claimant begins to \npick up her phone when she sees him, but then puts it back down and \nleans over it, tapping at the screen. \nj. 02:05- the claimant slides her phone in front of Ms. Harris, who watches \nwhile they discuss something and tap at both phones. \nk. 02:19- the claimant points her fingers like a gun against Ms. Harris’ head \nfor a moment before pulling her hand away. \nl. 02:29- the claimant is holding her phone and standing beside Ms. Harris \nas another employee enters the area from the top of the frame and walks \naround the nurse’s station. \nm. 03:09- the claimant is still standing by Ms. Harris, and they are looking at \ntheir phones, when another employee enters the middle of the nurse’s \nstation via the corridor. \nn. 03:17- the claimant abruptly stands back and walks away from Ms. \nHarris while saying something, with her hands on her hips, towards the \nemployee who just arrived. \no. 03:19- the claimant appears to stumble while turning and walking \nthrough the corridor. She then exits the frame. \n(2) As noted on cross examination, the claimant stated on the Form N that, “[A] lady \nran over my toes[.] Almost fell and then heard a pop.” \n(3) Ms. Harris wrote that, “I was sitting at the nurses deck when someone came up \nbehind me and placed her hands around my neck and grabbed my boob and when \nI looked to see who it was Bri from CSR and I felt uncomfortable and it was \nunwanted.” [sic] \n\nB. DAVIS- H305274 \n11 \n \n(4) Mr. Jones wrote that, “... Her assignment DID NOT INLCUDE SICU \n[emphasis in original]... Breaunna was in SICU when injured, but had not been \nassigned there nor sent there by her direct supervisor or myself at any time that \nmorning. At the time, she should have been attending to her assigned areas or \nback in CSR working on whatever her direct supervisor needed her to do.” SICU \nis the intensive care unit where the claimant was not assigned, but where she \ninjured herself. \n(5) The 26 September 2023 termination letter advised the claimant of “termination \nas Distribution Technician at Jefferson Regional. Disciplinary reason \n‘Unprofessional Behavior/Conduct.’” \n(6) The HR documents indicate “termination” for “Unacceptable Behavior/Conduct,” \nproviding that, “The employee was found on video outside of her work without a \nbusiness reason displaying unprofessional conduct/behavior.” The final page has \na space for comments that appears to be signed by the same Robin Munn who \nsigned the termination letter and noted, “Was a no call no show for meeting to \nterm. Sent cert[ified] letter.”  \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted as fact. It is settled that the \nCommission, with the benefit of being in the presence of the witnesses and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 \n(1999).   \n \n \n\nB. DAVIS- H305274 \n12 \n \nA.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT SHE SUFFERED A COMPENSABLE INJURY. \n \nThe claimant is not entitled to the benefits sought in relation to the injury she \nexperienced while at work on 10 August 2023. At the time she injured her ankle, the \nclaimant had been engaging in horseplay outside of her work assignment area. \nThe claimant alleges that she sustained a compensable injury under the Arkansas \nWorkers’ Compensation Act. ACA § 11-9-101, et seq. Under the Act, a respondent is \ngenerally required to provide certain benefits associated with a compensable injury suffered \nby a worker in the course and scope of their employment. However, “injuries caused by \nhorseplay shall not be considered to be compensable injuries.” ACA § 11-9-102(4)(B)(i). In \nMize v. Res. Power, Inc., 99 Ark. App. 415, 261 S.W.3d 477, 2007 Ark. App. LEXIS 583, our \nCourt of Appeals addressed horseplay and found an earlier citation to Ringier Am. v. \nCombs, 41 Ark. App. 47, 849 S.W.2d 1 (1993), to be instructive, though not controlling (as \n“the statutory provision [above] was enacted after the Ringier case was decided and is \ncontrolling”): \nWhether initiation of horseplay is a deviation from one's course of \nemployment depends on: (1) the extent and seriousness of the deviation; (2) \nthe completeness of the deviation, i.e., whether it was co-mingled with the \nperformance of duty or involved in abandonment of duty; (3) the extent to \nwhich the practice of horseplay had been an accepted part of the employment; \nand (4) the extent to which the nature of the employment may be expected to \ninclude some such horseplay. \n \nMize, supra, at *420, **480, ***8.  \n The available video shows the three minutes preceding the claimant’s injury. \nApplying the considerations from Ringier, I find that she did not appear at all to be \nfurthering any work duty. Ms. Harris, who I find to be credible, testified that the claimant \ndid not engage in any work-related discussion but, instead, was showing her some music \nvideo on her phone. That is consistent with the video footage (Factors (1) and (2)). From the \n\nB. DAVIS- H305274 \n13 \n \nclaimant’s guarding behavior when one employee enters the frame and then her hasty \ndeparture when another arrives, I find it more likely than not that she was aware that her \nbeing out of her place of assignment was not acceptable (Factor (3)). Finally, there was no \ntestimony to support the notion that laughing and dancing in an intensive care unit, and \nwhile out of one’s place of assignment, might be behavior of an expected nature in a \nhealthcare setting (Factor (4)). All of these factors weigh in favor of finding that the \nclaimant’s behavior was a significant deviation from the course of her employment and that \nshe was engaging in horseplay at the time she was injured. \n The claimant attempted to argue that she was acting for her employer’s benefit \nwhile being out of her place of assignment. I do not find that argument, or her testimony as-\na-whole, to be credible. First, nothing in the video supports her story of investigating a note \nabout some needed supplies. Second, Ms. Harris credibly states that the claimant was not \nthere to discuss job-related business. Third, Mr. Jones credibly testified that the claimant \nwas outside of her assigned work area at the time she was hurt and that she should have \nreturned to her supervisor for further assignments after finishing her supply deliveries. \nLastly, the claimant was terminated for the behavior that immediately preceded hurting \nher ankle. In the span of about three minutes, the claimant grabbed Ms. Harris in a \nchokehold, groped Ms. Harris’ breast (which she denied in her testimony, but is in plain \nview in the video), motioned against Ms. Harris’ head with her hand in the shape of a gun, \nand danced along with some kind of internet videos—all while outside of her assigned work \narea. The evidence preponderates a finding that she was engaged in horseplay and not in \nany efforts in furtherance of her employer’s interest.  \n The claimant incredulously testified that she did not recall why she no longer \nworked for the respondent-employer. Then she said that she believed she was terminated, \nbut that she was unsure why. The respondents’ evidence, however, show that she was \n\nB. DAVIS- H305274 \n14 \n \nterminated for being “found on video outside of her work without a business reason \ndisplaying unprofessional conduct/behavior.” Her credibility was further damaged by the \nrespondents’ counsel noting on cross examination that the claimant filled out a Form N \nstating that a “lady ran over my toes.” The video shows nothing of the sort happening. Yet \non cross examination, the claimant insisted that the incident actually happened and that it \nwas “a portion” of how she injured herself. The claimant was, in short, not a credible \nwitness. \n Because the evidence preponderates a finding that the claimant was engaged in \nhorseplay at the time of her injury, the benefits she requests are barred by ACA § 11-9-\n102(4)(B)(i). \nB.   THE CLAIMANT IS NOT ENTITLED TO A CONTROVERTED ATTORNEY’S FEE. \n \n Because the claimant fails to establish by a preponderance of the evidence that she \nsuffered a compensable injury, her claim for an attorney’s fees must fail. \nV.  ORDER \n     Consistent with the Findings of Fact and Conclusions of Law stated above, this \nclaim for is DENIED and DISMSSED.  \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":23749,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H305274 BREAUNNA DAVIS, EMPLOYEE CLAIMANT JEFFERSON REGIONAL MEDICAL CENTER, EMPLOYER RESPONDENT JEFFERSON HOSPITAL ASSOCIATION, INC./ RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED 11 SEPTEMBER 2024 Heard before Arkansas Workers’ Compen...","outcome":"denied","outcomeKeywords":["granted:1","denied:3"],"injuryKeywords":["ankle","back","neck"],"fetchedAt":"2026-05-19T22:48:48.713Z"},{"id":"full_commission-H005594-2024-09-10","awccNumber":"H005594","decisionDate":"2024-09-10","decisionYear":2024,"opinionType":"full_commission","claimantName":"Francisco Bonilla","employerName":"Juan Carlos Calderon","title":"BONILLA VS. JUAN CARLOS CALDERON AWCC# H005594 September 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Bonilla_Francisco_H005594_20240910.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Bonilla_Francisco_H005594_20240910.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H005594 \n \nFRANCISCO BONILLA, EMPLOYEE          CLAIMANT \n \nJUAN CARLOS CALDERON, EMPLOYER RESPONDENT NO. 1 \n \nLIBERTY MUTUAL GROUP, \nINSURANCE CARRIER/TPA RESPONDENT NO. 1 \n \nPICK-IT CONSTRUCTION, EMPLOYER RESPONDENT NO. 2 \n \nEMPLOYERS MUTUAL CASUALTY, \nINSURANCE CARRIER/TPA RESPONDENT NO. 2 \n \nOPINION FILED SEPTEMBER 10, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MATTHEW J. KETCHAM, Attorney at \nLaw, Fort Smith, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE JASON M. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID C. JONES, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondent No. 1 appeals an administrative law judge’s opinion filed May \n7, 2024.  The administrative law judge entered the following findings of fact and \nconclusions of law: \n1. The stipulations agreed to by the parties at the pre-hearing conference \nconducted on November 13, 2023, and contained in a Pre-hearing Order \nfiled on November 14, 2023, are hereby accepted as fact.   \n\nBONILLA - H005594  2\n  \n \n \n \n2. The claimant has failed to prove by a preponderance of the evidence that \nhe was an employee of Respondent No. 2 on July 14, 2020.  The issue \nof whether the claimant was employee of Respondent No. 1 on July 14, \n2020, is moot. \n \n3. The claimant is able to prove by a preponderance of the evidence that he \nsustained compensable injuries to his lumbar spine and right shoulder on \nor about July 14, 2020. \n \n4. The claimant is able to prove by a preponderance of the evidence that he \nis  entitled  to  medical  treatment  for  his  compensable  lumbar  spine  and \nright shoulder injuries.   \n \n5. The claimant is able to prove by a preponderance of the evidence that he \nis  entitled  to  temporary  total  disability  benefits  from  July  14,  2020,  to \nOctober 1, 2020.   \n \n6. The claimant is able to prove by a preponderance of the evidence under \nA.C.A.  §11-9-518(c)  that  he  is  entitled  to  an  average  weekly  wage  of \n$800.00 per week, which computes to a temporary total disability rate of \n$533.00 and a permanent partial disability rate of $400.00.  \n \n7. The claimant is able to prove by a preponderance of the evidence that \nhis attorney is entitled to an attorney fee in this matter. \n \n8. Respondent  No.  1  has  failed  to  prove  their  lack  of  notice  defense.  \nRespondent No. 2’s lack of notice defense is moot. \n \n9. Respondent No. 2’s statute of limitations defense is moot. \n \n10. Regardless of whether the claimant is the employee of  \nRespondent No. 1 or an intermediate subcontractor under A.C.A. §11-\n9-402(a), Respondent No. 1 is still liable for benefits due to the claimant \nunder the Arkansas Workers’ Compensation Act for his compensable \ninjuries to his right shoulder and lumbar spine he sustained on July 14, \n2020, in the fall from the roof of the home located at 1915 Cherry Hills \nDrive, Fayetteville, Arkansas.   \n \n After reviewing the entire record de novo, we find that the administrative \nlaw judge’s decision is supported by a preponderance of the evidence, correctly \n\nBONILLA - H005594  3\n  \n \n \napplies the law, and should be affirmed.  The administrative law judge’s findings \nof fact are therefore adopted by the Full Commission.  See SSI, Inc. v. Cates, \n2009 Ark. App. 763, 350 S.W.3d 421.   \n The claimant’s attorney is entitled to fees for legal services in accordance \nwith Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing on Respondent No. \n1’s appeal to the Full Commission, the claimant’s attorney is entitled to an \nadditional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-\n715(b)(Repl. 2012).  Respondent No. 1 shall be solely liable for attorney’s fees \nherein.   \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":4329,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H005594 FRANCISCO BONILLA, EMPLOYEE CLAIMANT JUAN CARLOS CALDERON, EMPLOYER RESPONDENT NO. 1 LIBERTY MUTUAL GROUP, INSURANCE CARRIER/TPA RESPONDENT NO. 1 PICK-IT CONSTRUCTION, EMPLOYER RESPONDENT NO. 2 EMPLOYERS MUTUAL CASUALT...","outcome":"granted","outcomeKeywords":["affirmed:1","granted:3","denied:1"],"injuryKeywords":["lumbar","shoulder"],"fetchedAt":"2026-05-19T22:29:44.923Z"},{"id":"full_commission-H301483-2024-09-10","awccNumber":"H301483","decisionDate":"2024-09-10","decisionYear":2024,"opinionType":"full_commission","claimantName":"Elias Chavez","employerName":"Thompson Construction Group, Inc","title":"CHAVEZ VS. THOMPSON CONSTRUCTION GROUP, INC. AWCC# H301483 September 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Chavez_Elias_H301483_20240910.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Chavez_Elias_H301483_20240910.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H301483 \n \nELIAS CHAVEZ, \nEMPLOYEE \n \nCLAIMANT \nTHOMPSON CONSTRUCTION GROUP, INC.,  \nEMPLOYER \n \nRESPONDENT \nZURICH AMERICAN INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 10, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant is Pro Se. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe claimant appeals and the respondents cross-appeal an \nadministrative law judge’s opinion filed December 13, 2023.  The \nadministrative law judge found that the claimant proved he sustained a \ncompensable left hip injury.  The administrative law judge awarded \nreasonably necessary medical treatment but found that the claimant did not \nprove he was entitled to temporary total disability benefits.  The \nadministrative law judge reserved the issues of permanent anatomical \nimpairment and wage-loss disability.  After reviewing the entire record de \n\nCHAVEZ - H301483  2\n  \n \n \nnovo, the Full Commission affirms the administrative law judge’s opinion as \nmodified.     \nI.  HISTORY \n The testimony of Elias Chavez, now age 61, indicated that he \nbecame employed as a “rodbuster” for the respondents, Thompson \nConstruction Group, Inc., in June 2021.  The parties stipulated that the \nemployee-employer-carrier relationship existed on September 9, 2022.  The \nclaimant testified on direct examination: \nQ.  Could you tell us exactly what happened to you on \nSeptember 9\nth\n of 2022? \nA.  Yes.  It was just a normal day.  We started working at \n7:00....And so we had to start carrying the metal rods down.  \nThere were two packages of Number 7 rods that are 40 \npieces each that we had to carry between two of us.  And so \nas we’re coming in with the rods is when I slipped, because \nmy shoes were muddy and wet, because of the work site, and \nit was just as we were trying to put the rods down that I \nslipped.  My left foot slipped and I was carrying the metal rods \non my right shoulder....I was in a lot of pain....They gave me \nthree pills and sent me home for the rest of the day, and told \nme to come back to work the following morning.  So I came \nback the next day to the office and in the office they asked me \nhow I was doing.  And I told them that the same pain was still \nwith me.  So they told me they were going to send me to work, \nbut not doing the same job, that was just going to be pulling \nrods.... \nQ.  Could you describe your pain for us? \nA.  The pain ran from my back all the way down the length of \nmy legs.... \nQ.  And you’re noting that this is a pain in your left hip and \nthigh that is on the outer side of your left hip? \nA.  From the center of my back.... \nQ.  And when you fell, at that moment, on September 9\nth\n, did \nyou feel that pain immediately? \n\nCHAVEZ - H301483  3\n  \n \n \nA.  Immediately.... \nQ.  You got hurt on September 9\nth\n, and you came back to the \njob the next day.  Is that right? \nA.  Yes.     \n \n The parties initially stipulated that the claimant “sustained \ncompensable injuries to his left hip and low back” on September 9, 2022.  \nThe parties stipulated that the respondents “accepted this claim as \ncompensable and paid some benefits.”   \n According to the record, the claimant presented for treatment with \nDr. Sherita D. Willis on November 22, 2022.  The claimant complained of \nMusculoskeletal Pain in his “left hip,” “present for 1-6 months.”  Dr. Willis \nassessed “1.  Acute low back pain.”  Dr. Willis also reported, “Left Hip:  \ntenderness and pain on palpation.”  Dr. Willis recommended conservative \ntreatment, and she noted “Patient to full duty.”   \n The claimant returned to Dr. Willis on January 10, 2023:  “Patient \nstates that he has left lateral back pain that radiates down to the sciatic \nnotch and below.  He states that this occurs regularly and that it gets better \nand worse spontaneously.  He states that he woke up this am and that his \nback was hurting but that when he went to work, he bent over to tie his \nshoe and that it got acutely worse.”  Dr. Willis assessed “Sciatica – Left – \nExplained to patient [that] this pain is chronic and is not a work \ninjury....Patient to see his primary care physician for x ray, PT, and \ndefinitive treatment.”  Dr. Willis noted “Work full duty.” \n\nCHAVEZ - H301483  4\n  \n \n \n Dr. Ricky Carson reported on March 8, 2023: \n60 yo male Hispanic builder man comes for chronic back pain \nand left hip pain for about 6 months after he admits fell over in \nhis job area when he was pushing lifting heavy things on \n09/09/22, but he never go to the Dr. evaluation, he said he \nwent to the Dr. 3 months after trauma event to private clinic \nwith DX [back] pain and hip by facultative he does not bring \nthe complete history resume, he admits still with lumbar back \npain and left side hip that getting worse during flexion \nextension joint [motion] area rate pain 8/10 when he is \nwalking[.]   \n \n Dr. Carson’s assessment included “1.  Low back pain” and “3.  Hip \npain.”    \n Kristina Ward, Senior Resolution Manager, corresponded with the \nclaimant on March 9, 2023: \nGallagher Bassett Services is the Workers’ Compensation \nAdministrator for the above captioned client.  I am handling \nthe above captioned Workers’ Compensation claim on behalf \nof your employer.... \nEnclosed you will find a HIPPA release, two copies of the AR \nForm N (Employee Notice of Injury) and a Medical \nQuestionnaire for you to complete and return to me in the self-\naddressed envelope that I have provided you.  Please feel \nfree to contact me with any questions in this matter.... \n \n The record contains an unsigned “Formulario AR-N.” \n The claimant testified on direct examination: \nQ.  Mr. Chavez, do you remember signing any form labeled a \nForm N that was sent to you by respondents?  I think, its \nGallagher Bassett representing Thompson Construction? \nA.  No.   \nQ.  Okay.  And you understand that respondents have \nsubmitted a Form N for their exhibits today? \nA.  They never had me sign a form.... \n\nCHAVEZ - H301483  5\n  \n \n \nQ.  I’m showing you the Form N submitted with the \nrespondents on this.  As you’re looking at this, is any of that \nfilled out? \nA.  No.   \nQ.  Is your signature on that page? \nA.  No. \nQ.  Or on that page? \nA.  No.   \n \n Dr. John Rocco Rodney noted on March 15, 2023: \n60 yo male Hispanic physical laborer presents for follow up a \nweek later on back pain and left hip pain for about 6 months \nafter he fell over in his job area when he was pushing/lifting \nheavy things on 09/09/22, but he never go to the Dr. \nevaluation, he said he went to the company Dr. 3 months after \nthe trauma event to private/work? clinic with DX of chronic \nsciatica not workplace injury.  He reports continued left \nlumbar/sacral back pain and left side hip worse with \nmovement and especially long walking....He has some \ncompany paperwork, reports he can still work at a machine, \nbut walking and lifting and other tasks are too difficult.... \nDifficult to say why still so symptomatic six months after \nsupposedly causative fall.  No red flag back pain symptoms.  \nPE consistent with muscular/conneftive (sic) tissue strain.  XR \nwithout evidence of bony or joint pathology.  Radiation pattern \nnot consistent with sciatica.... \n \n Dr. Rodney assessed “1.  Acute bilateral low back pain without \nsciatica” and “2.  Muscle strain.”  Dr Rodney recommended conservative \ntreatment and noted, “If pt continues to fail conservative therapy \nrecommend orthopedic followup.” \n The claimant testified on direct examination: \nQ.  When did you leave employment with Thompson \nConstruction? \n  A.  I’m not sure if it was the 22\nnd\n or the 23\nrd\n.   \n  Q.  So somewhere in the mid-20s of this March, correct? \n\nCHAVEZ - H301483  6\n  \n \n \n  A.  Or the 21\nst\n....I left on the 25\nth\n to go back to Maryland.   \n \n An MR of the claimant’s left hip was taken on March 27, 2023 with \nthe following impression: \n  1.  Very mild osteoarthritis of both hips. \n2.  Low-grade partial-thickness tears at the origins of bilateral \nhamstring tendons. \n3.  Low-grade partial-thickness tears at the insertions of the \nleft gluteus minimus and medius tendons. \n4.  Low-grade partial-thickness tear at insertion of the right \ngluteus medius tendon.   \n \n The claimant testified on direct examination: \nQ.  And I understand that you were struck by a vehicle on \nJune 2\nnd\n of 2023, is that correct? \nYes....I was going to walk in a park.   \n \n The record includes a “State of Maryland Motor Vehicle Crash \nReport” dated June 2, 2023.  The Crash Report indicated that the claimant \nwas struck by a vehicle while walking across a boulevard.  The claimant \nwas admitted to SH Suburban Hospital, Bethesda, Md. on June 2, 2023.  \nAn x-ray of the claimant’s left femur was taken on June 2, 2023 with the \nimpression, “Mild displaced comminuted fracture of the left mid femoral \nshaft.”  A CT of the claimant’s Chest/Abdomen/Pelvis was taken on June 2, \n2023 with the impression, “No acute traumatic abnormality in the chest, \nabdomen, or pelvis.”  Dr. Lisbi Rivas Ramirez reported on June 2, 2023, “I \nreviewed the images my self and no apparent injuries identified other than \nfemur fracture.”     \n\nCHAVEZ - H301483  7\n  \n \n \nThe claimant was discharged from SH Suburban Hospital on June 6, \n2023: \nThis is a 60 year old male who presented to the trauma center \nafter being struck by a car.  He was found to have a left femur \nfracture.  Orthopedics was consulted and he underwent an IM \nnail on 6/3.  He is WBAT in a knee immobilizer and has been \nworking with physical therapy, who have recommended either \nacute rehab or home with in home physical therapy \nservices....He is now stable for discharge to home with Home \nPT, which has been arranged by Social Work. \n \n A pre-hearing order was filed on July 5, 2023.  The claimant \ncontended, “On 9/9/2022, claimant, in the course and scope of employment \nwith respondent-employer, was carrying a rail when he fell from an elevated \nsection of the construction site, sustaining a left hip injury.  The respondents \ntook two months of the claimant complaining about pain to send him to a \ndoctor, but initially accepted the injury as compensable.  Claimant initially \nwas provided treatment from Dr. Sherita Willis, where his complaints were \nof left hip and blow (sic) back pain.  Claimant was allowed to return to Dr. \nWillis in January of 2023, where she sited (sic) that the claimant’s \ncomplaints of pain were chronic in nature.  Respondents then denied his \nclaim.  Claimant was then forced to treat on his own and went to Dr. Rickey \nCarson, where he complained of low back and left hip pain, and was \nreferred to Dr. John Rocco Rodney.  Claimant underwent an MRI which \nrevealed tears of his bilateral hamstring tendons, the left gluteus minimus \nand medius tendons, and at the right insert of the gluteus medius tendons.  \n\nCHAVEZ - H301483  8\n  \n \n \nClaimant contends that he suffered a compensable injury at work, that he is \nentitled to temporary total disability, medical benefits, and that his attorney \nis entitled to an attorney’s fee.  All other issues are reserved.”   \n The respondents contended, “Respondents contend they accepted \nthis claim as a medical only.  The claimant continued to work for \nRespondent/Employer through 3/19/23, when he was terminated.  As is \nevidenced by the attached wage information.  The medical documentation \ndoes not support an off work status beyond that.  In light of this, it is \nRespondents’ position Claimant is not entitled to temporary total disability \nbenefits.  Additionally, the medical records indicate the claimant does not \nhave any acute objective findings to support an injury on 9/9/22.  The \nclaimant has received unauthorized medical treatment with Drs. Rodney \nand Carson.” \n The parties agreed to litigate the following issues: \n1.  Whether Claimant is entitled to any additional reasonable \nand necessary medical treatment rendered after January of \n2023. \n2.  Whether Claimant is entitled to temporary total disability \n(TTD) and permanent partial disability (PPD) benefits from \nSeptember 9, 2022, to a date yet to be determined.   \n3.  Attorney’s fee.  All other issues are reserved.   \n The respondents’ attorney corresponded with the administrative law \njudge on September 29, 2023: \nEnclosed please find the indexes for Respondents’ medical \nand non-medical exhibits.  Claimant has not produced \n\nCHAVEZ - H301483  9\n  \n \n \nobjective evidence of an acute, work-related injury to his hip.  \nTherefore, Respondents are not willing to stipulate that he \nsuffered a compensable injury to that body part.  Additionally, \nRespondents assert that Claimant’s current symptoms and \ncomplaints are the result of a new accident occurring 06/02/23 \nwhen he was hit by a car as a pedestrian.  Respondents also \nassert that Claimant is not entitled to temporary total disability \nboth because there is insufficient evidence that he remained \nin a healing period while being totally incapable of working, \nbut also because he returned to work at pre-injury wages after \nhis alleged accident.   \n \n After a hearing, an administrative law judge filed an opinion on \nNovember 29, 2023.  The administrative law judge found that the claimant \nproved he sustained a compensable injury to his left hip.  The \nadministrative law judge awarded reasonably necessary medical treatment \nbut found that the claimant was not entitled to temporary total disability \nbenefits.   \n The administrative law judge filed an amended opinion on December \n13, 2023.  The administrative law judge found that the claimant proved he \nsustained a compensable injury to his left hip.  The administrative law judge \nawarded reasonably necessary medical treatment but found that the \nclaimant was not entitled to temporary total disability benefits.  The \nadministrative law judge reserved the issue of permanent anatomical \nimpairment and wage-loss disability.  The claimant appeals to the Full \nCommission and the respondents cross-appeal. \nII.  ADJUDICATION \n\nCHAVEZ - H301483  10\n  \n \n \n A.  Compensability \n Ark. Code Ann. §11-9-102(4)(Supp. 2023) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... \narising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.] \n \n A compensable injury must be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D(Supp. \n2023).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Supp. \n2023).   \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Supp. 2023).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).   \n An administrative law judge found in the present matter, “3.  \nClaimant has proven by a preponderance of the evidence that he sustained \na compensable injury to his left hip on September 9, 2022.”  The Full \nCommission affirms this finding.  The parties stipulated that the employment \nrelationship existed on September 9, 2022.  The claimant testified that he \n\nCHAVEZ - H301483  11\n  \n \n \nslipped and fell while carrying a set of rods on the work site.  The claimant \ntestified that he immediately felt pain in his back and left hip.  The parties \ninitially stipulated that the claimant “sustained compensable injuries to his \nleft hip and low back” on September 9, 2022.  The respondents now \ncontend that the claimant did not sustain a compensable left hip injury, but \nthey have not withdrawn their stipulation that the claimant sustained a \ncompensable back injury.   \n The claimant began treating with Dr. Willis on November 22, 2022.  \nThe claimant reported pain in his left hip which had been “present for 1-6 \nmonths,” and Dr. Willis also assessed “1.  Acute low back pain.”  Dr. Willis \ntreated the claimant conservatively.  However, Dr. Willis advised the \nclaimant on January 10, 2023 that his pain was “chronic and is not a work \ninjury.\"  The Commission has the authority to accept or reject a medical \nopinion and the authority to determine its medical soundness and probative \nforce.  Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 \n(1999).  In the present matter, the Full Commission attaches minimal \nevidentiary weight to Dr. Willis’ conclusion that the claimant’s pain was \n“chronic and is not a work injury.”  We find that the claimant’s complaints of \npain were causally related to the compensable injury which occurred on \nSeptember 9, 2022.   \n\nCHAVEZ - H301483  12\n  \n \n \n The Full Commission also finds that the claimant proved he \nsustained a compensable left hip injury.  An MR of the claimant’s left hip on \nMarch 27, 2023 showed, among other things, “3.  Low-grade partial-\nthickness tears at the insertions of the left gluteus minimus and medius \ntendons.”  These objective medical findings demonstrated a compensable \ninjury to the claimant’s left hip and were not within the claimant’s voluntary \ncontrol.   \n The parties have stipulated that the claimant sustained a \ncompensable injury to his low back.  The Full Commission finds that the \nclaimant proved he also sustained a compensable injury to his left hip.  The \nclaimant proved that he sustained an accidental injury causing physical \nharm to his left hip.  The injury arose out of and in the course of \nemployment and required medical services.  The injury was caused by a \nspecific incident which was identifiable by time and place of occurrence on \nSeptember 9, 2022.  In addition, the claimant established a compensable \ninjury to his left hip by medical evidence supported by objective findings.  \nDiagnostic testing on March 27, 2023 plainly showed partial thickness tears \nin the claimant’s left gluteus.  We find that these objective medical findings \nwere causally related to the compensable injury and were not the result of a \nprior injury or pre-existing condition.     \n B.  Medical Treatment \n\nCHAVEZ - H301483  13\n  \n \n \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Supp. \n2023).  The employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  What \nconstitutes reasonably necessary medical treatment is a question of fact for \nthe Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 \nS.W.2d 70 (1984).   \n In the present matter, the claimant sustained a compensable injury to \nhis low back and left hip on September 9, 2022.  The Full Commission finds \nthat the medical treatment of record provided beginning November 22, 2022 \nwas reasonably necessary in connection with the compensable injury to the \nclaimant’s low back and left hip.  The evidence does not demonstrate that \nany of the claimant’s medical treatment of record was “unauthorized” in \naccordance with Ark. Code Ann. §11-9-514(Supp. 2023).  As we have \nnoted, the record contains an unsigned “Formulario AR-N.”  The claimant \ntestified, however, that he did not sign a Form AR-N, and there is not a \nsigned Form AR-N in the record before the Commission.  If there is not a \nsigned and delivered Form AR-N in the record, then the claimant is not \nbound by the Change of Physician rules and is free to seek reasonably \n\nCHAVEZ - H301483  14\n  \n \n \nnecessary medical treatment from any physician.  Tempworks Management \nServices v. Jaynes, 2023 Ark. App. 147, 662 S.W.3d 280 (Ark. App. 2023).      \n The record does not demonstrate that there was an independent \nintervening cause on June 2, 2023 in accordance with Ark. Code Ann. §11-\n9-102(4)(F)(iii)(Supp. 2023).  The claimant was struck by a vehicle while \ncrossing a boulevard on June 2, 2023.  The claimant sustained a \n“comminuted fracture of the left mid femoral shaft.”  The evidence does not \ndemonstrate that the claimant re-injured his low back or left hip on June 2, \n2023.  A CT on June 2, 2023 specifically showed “No acute traumatic \nabnormality in the chest, abdomen, or pelvis [emphasis supplied].”  Dr. \nRamirez reported on June 2, 2023, “I reviewed the images my self and no \napparent injuries identified other than femur fracture [emphasis supplied].”   \n C.  Temporary Disability \n Finally, temporary total disability is that period within the healing \nperiod in which the employee suffers a total incapacity to earn wages.  Ark. \nState Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  \n“Healing period” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Supp. 2023).  The healing period \ncontinues until the employee is as far restored as the permanent character \nof the injury will permit.  Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 \nS.W.2d 582 (1982).  The determination of when the healing period has \n\nCHAVEZ - H301483  15\n  \n \n \nended is a question of fact for the Commission.  Porter Seed Cleaning, Inc. \nv. Skinner, 1 Ark. App. 235, 615 S.W.2d 380 (1981). \n An administrative law judge found in the present matter, “5.  \nClaimant has not proven by the preponderance of the evidence that he is \nentitled to temporary total disability benefits for any period of time.”  The \nFull Commission affirms this finding.  The claimant sustained a \ncompensable injury to his low back and left hip on September 9, 2022.  The \nclaimant testified that he returned to work the day after his compensable \ninjuries.  Dr. Willis reiterated on November 22, 2022 that the claimant could \nwork at “full duty.”  The claimant testified that he voluntarily left his \nemployment with the respondents on or about March 25, 2023.  Whether or \nnot the claimant remained within a healing period for his compensable \ninjuries, the evidence does not demonstrate that the claimant was ever \nincapacitated from earning wages.  The claimant therefore did not prove \nthat he was entitled to temporary total disability benefits.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved he sustained a compensable injury to his low back \nand left hip.  The claimant was not bound by the change of physician rules \nbecause there was not a signed and delivered Form AR-N in the record.  \nNor does the record show that the June 2, 2023 pedestrian accident \nconstituted an “independent intervening cause” in accordance with Ark. \n\nCHAVEZ - H301483  16\n  \n \n \nCode Ann. §11-9-102(4)(F)(iii)(Supp. 2023).  The claimant proved that the \nmedical treatment of record was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Supp. 2023).  The Commission notes Dr. \nRodney’s March 15, 2023 recommendation of “orthopedic followup” if \nconservative treatment failed.  The claimant did not prove he was entitled to \nany period of temporary total disability benefits.  Based on the record \ncurrently before us, the Full Commission finds that the claimant did not \nprove he was entitled to permanent anatomical impairment or wage-loss \ndisability.  For prevailing in part on appeal, the claimant’s attorney is entitled \nto a fee of five hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-\n715(b)(Supp. 2023).   \n  IT IS SO ORDERED.  \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \n \n \n\nCHAVEZ - H301483  17\n  \n \n \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved he sustained a compensable injury to his low back and left \nhip and that the medical treatment of record was reasonably necessary. \nI. The claimant failed to meet his burden of proving that he \nsustained a compensable left hip or low back injury or his \nentitlement to related medical treatment. \n \na. There are no objective medical findings of a specific incident \ninjury. \nArkansas Code Annotated section 11-9-102 (4)(A)(i) provides that a \ncompensable injury includes “[a]n accidental injury causing internal or \nexternal physical harm to the body. . . An injury is ‘accidental’ only if it is \ncaused by a specific incident and is identifiable by time and place of \noccurrence.”  \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  This, therefore, requires that a claimant establish by a \npreponderance of the evidence: (1) an injury arising out of and in the course \nof employment; (2) that the injury caused internal or external physical harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings establishing an \n\nCHAVEZ - H301483  18\n  \n \n \ninjury as defined in Ark. Code Ann. §11-9-102(16) and; (4) that the injury \nwas caused by a specific incident identifiable by time and place of \noccurrence.  Ark. Code Ann. § 11-9-102(4)(A)(i). \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\"  Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16).  \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  \nThe Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony that it deems worthy of belief. \nWhite v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). \nHere, the claimant was examined by Dr. Sharita Willis on November \n22, 2022, and January 10, 2023.  Dr. Willis ultimately opined that the \nclaimant’s pain was chronic and not a result of any work injury, and she \nreferred the claimant to his primary care physician for treatment.  \n\nCHAVEZ - H301483  19\n  \n \n \nThe claimant was released to work at full duty on January 10, 2023, \nand he worked for nearly three months prior to obtaining his own MRI on \nMarch 27, 2023.  The MRI revealed, primarily, “very mild osteoarthritis of \nboth hips.” \nWith regard to the claimant’s alleged low-back injury, Dr. Willis \nassessed “Sciatica – Left – Explained to patient this pain is chronic and is \nnot a work injury.”  A later x-ray was normal with no evidence of bony or \njoint pathology, and no evidence of sciatica. \nThe claimant did not seek treatment for his alleged left hip injury for \nthree (3) months.  He never received any actual treatment for his back and \nthere were no objective medical findings on his MRI.  His treating physician \nopined his problems were chronic and not work related. \nb. The claimant’s June 2, 2023, car accident was an \nindependent intervening event.   \nOur rules provide that: \n \nbenefits shall not be payable for a \ncondition which results from a \nnonwork-related independent \nintervening cause following a \ncompensable injury which causes \nor prolongs disability or a need for \ntreatment.  A nonwork-related \nindependent intervening cause \ndoes not require negligence or \nrecklessness on the part of a \nclaimant. \n\nCHAVEZ - H301483  20\n  \n \n \n \nArk. Code Ann. § 11-9-102(5)(F)(3). \n \n On June 2, 2023, the claimant was struck by a car in a severe \naccident while he was walking across an intersection in Montgomery \nCounty, Maryland, resulting in a comminuted intertrochanteric left femur \nfracture.  Claimant underwent surgery for this injury on June 3, 2023, and \nreceived extensive medical treatment for this injury which was on the same \nside of the body and in very close proximity to the alleged left hip and low \nback injuries.  \nIt is impossible to state that being hit by a moving vehicle in the \nsame area as the alleged work-related injuries is not an independent \nintervening event extinguishing the respondent’s responsibility for any \nbenefits after June 2, 2023.  In fact, the claimant has not received any \ntreatment for his left hip or low back since June 2023 that is not related to \nthe June 2, 2023 vehicular accident.  \n The evidence is clear that any treatment the claimant has received \nsince June of 2023 is the direct result of this accident on June 2, 2023, \nwhen he was struck by a vehicle while crossing the street.  While the \nclaimant attempts to distinguish between the symptoms of his alleged on-\nthe-job injury and the 2023 car accident, the records do not support his \nclaims.  \n\nCHAVEZ - H301483  21\n  \n \n \nThe claimant was not receiving treatment for his hip or back in \nMaryland prior to the accident in June 2023, and the only evidence he \npresented at the hearing indicates that all treatment has been associated \nwith that accident.  Thus, the claimant has failed to prove he sustained a \ncompensable injury to his left hip or low back.   \nAccordingly, for the reasons set forth above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":30069,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H301483 ELIAS CHAVEZ, EMPLOYEE CLAIMANT THOMPSON CONSTRUCTION GROUP, INC., EMPLOYER RESPONDENT ZURICH AMERICAN INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 10, 2024","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["hip","shoulder","back","lumbar","strain","fracture","knee"],"fetchedAt":"2026-05-19T22:29:44.951Z"},{"id":"alj-H307961-2024-09-10","awccNumber":"H307961","decisionDate":"2024-09-10","decisionYear":2024,"opinionType":"alj","claimantName":"Derrick Ly","employerName":"Simmons Prepared Foods, Inc","title":"LY VS. SIMMONS PREPARED FOODS, INC. AWCC# H307961 September 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/LY_DERRICK_H307961_20240910.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LY_DERRICK_H307961_20240910.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H307961 \n \nDERRICK LY, Employee       CLAIMANT \n \nSIMMONS PREPARED FOODS, INC., Employer   RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES, Carrier/TPA RESPONDENT \n \n \n OPINION FILED SEPTEMBER 10, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by R. SCOTT ZUERKER, Attorney at Law, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn December  18,  2023,  the  claimant,  through  his  attorney,  Jarid  Kinder, filed  an  AR-C \nrequesting  various  compensation  benefits  in  which he alleged an  injury  to  his right  arm  and \nshoulder on November 16, 2023. The claim was controverted in its entirety. \nOn January 23, 2024, Mr. Kinder filed a Motion to Withdraw as Counsel, which the Full \nCommission granted on February 16, 2024. No further action was taken regarding this claim. \n On June 24, 2024, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed for lack of prosecution. A hearing was scheduled for August 15, 2024. Notice of that \nhearing was sent to the claimant by certified mail, return receipt requested on July 9, 2024. That \ncertified mail notice was returned to the Commission by the Post Office with a notation “Return \nto Sender. Not Deliverable as Addressed. Unable to Forward.” \n\nLy – H307961 \n \n-2- \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2440,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H307961 DERRICK LY, Employee CLAIMANT SIMMONS PREPARED FOODS, INC., Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, Carrier/TPA RESPONDENT OPINION FILED SEPTEMBER 10, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Seb...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:48:40.255Z"},{"id":"alj-H002608-2024-09-10","awccNumber":"H002608","decisionDate":"2024-09-10","decisionYear":2024,"opinionType":"alj","claimantName":"Melissa Mills","employerName":"Mhm Support Services","title":"MILLS VS. MHM SUPPORT SERVICES AWCC# H002608 September 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MILLS_MELISSA_H002608_20240910.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MILLS_MELISSA_H002608_20240910.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H002608 \n \nMELISSA MILLS, Employee      CLAIMANT \n \nMHM SUPPORT SERVICES, Employer     RESPONDENT \n \nMERCY HEALTH, Carrier/TPA      RESPONDENT \n \n \n OPINION FILED SEPTEMBER 10, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by RANDY P. MURPHY, Attorney at Law, Little Rock Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn October  20,  2022,  the  claimant  filed  an  AR-C  requesting  various  compensation \nbenefits  in  which she alleged she  contracted  COVID on  March  27,  2020,  arising  out  of  her \nemployment. The claim was controverted in its entirety. \nOn September 6, 2022, the claimant requested a hearing, and the file was assigned to the \nLegal  Advisor  Division  for  a  conference,    but  a  conference  was  never  held  due  to  lack  of \nresponse by the claimant. No further action was taken. \n On May 28, 2024, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed for lack of prosecution. A hearing was scheduled for August 15, 2024. Notice of that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on  July  3,  2024. \nUnited States Postal Department records indicate that claimant received and signed for the notice \n\nMills – H002608 \n \n-2- \non July 11, 2024. Despite having received notice of the scheduled hearing, the claimant failed to \nappear at the hearing and has failed to respond to the motion in any form or manner. \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2599,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H002608 MELISSA MILLS, Employee CLAIMANT MHM SUPPORT SERVICES, Employer RESPONDENT MERCY HEALTH, Carrier/TPA RESPONDENT OPINION FILED SEPTEMBER 10, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Cla...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:48:42.331Z"},{"id":"alj-H305669-2024-09-10","awccNumber":"H305669","decisionDate":"2024-09-10","decisionYear":2024,"opinionType":"alj","claimantName":"Mkeesha Moffett","employerName":"Staffmark","title":"MOFFETT VS. STAFFMARK AWCC# H305669 September 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MOFFETT_MKEESHA_H305669_20240910.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOFFETT_MKEESHA_H305669_20240910.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H305669 \n \nMESHA MOFFETT, EMPLOYEE            CLAIMANT \nSTAFFMARK, EMPLOYER      RESPONDENT \nACE INA GROUP/CCMSI, CARRIER/TPA    RESPONDENT  \n \nOPINION FILED SEPTEMBER 11, 2024 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on September 10, 2024. \nClaimant is pro se and failed to appear. \nRespondents are represented by their attorney, Melissa Wood, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above  styled  matter  on September  10, 2024, in Little \nRock, Arkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArkansas  Code  Ann.  11-9-702 and Rule 13 of the Workers’ Compensation Act. The \nclaimant was originally represented by counsel and filed a Form AR-C on December 9, \n2023, claiming that she had injured her wrist and hand. A Form AR- 2 had been previously \nfiled on September1, 2023, which provided the date of injury to be June 27, 2023. The \nfirst day of disability was August 31, 2023, and the claim was accepted as compensable. \nThe  claimant  had  reached  MMI  on  March 25,  2024, and  was originally  represented  by \nMark Peoples, Attorney at Law, who was allowed to withdraw by an Order from the Full \nCommission, dated June 25, 2024.    \n\nMoffett – H305669 \n \nA Motion to Dismiss the  Claim was  filed  on July  10,  2024,  contending  that  the \nclaimant had failed to prosecute the claim per the law and rules of the Commission.  The \nclaimant  has  not  requested  a  hearing  to  date  and  more  than  six  months  have  passed \nsince the filing of the original claim.   \n Appropriate notice was provided to the claimant at her last known address notifying \nher that  a hearing on  the Motion to Dismiss was  set  for September  10, 2024,  in Little \nRock, Arkansas. The claimant did not file a response and failed to appear on the hearing \ndate. At the time of the hearing, Melissa Wood appeared on behalf of the Respondents \nand asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nRespondent, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to \ndismiss this claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2741,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305669 MESHA MOFFETT, EMPLOYEE CLAIMANT STAFFMARK, EMPLOYER RESPONDENT ACE INA GROUP/CCMSI, CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 11, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas on September 10, 2024. Cla...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T22:48:44.479Z"},{"id":"alj-H207378-2024-09-09","awccNumber":"H207378","decisionDate":"2024-09-09","decisionYear":2024,"opinionType":"alj","claimantName":"Wynnefort Bell","employerName":"Domtar Corporation","title":"BELL VS. DOMTAR CORPORATION AWCC# H207378 September 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BELL_WYNNEFORT_H207378_20240909.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BELL_WYNNEFORT_H207378_20240909.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC NO.: H207378 \n \n \nWYNNEFORT BELL, EMPLOYEE                                                                     CLAIMANT \nDOMTAR CORPORATION, \nEMPLOYER                                                                                                         RESPONDENT                             \n   \nFARMINGTON CASUALTY COMPANY,  \nTRAVELERS INDEMINTY CO.,  \nCARRIER/TPA                RESPONDENT                                                                                        \n                                                                                                                                                                                                                                                    \n \nOPINION FILED SEPTEMBER 9, 2024 \n \nA  hearing  was  held  before  Administrative  Law  Judge  Chandra  L.  Black, in Texarkana, Miller \nCounty, Arkansas. \n \nClaimant represented by the Honorable Gregory R. Giles, Attorney at Law, Texarkana, Arkansas.       \n \nRespondents represented by the Honorable Guy Wade Alton, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \nA hearing was held in the above-styled claim on June 11, 2024, in Texarkana, Arkansas.  \nOn April 17, 2024, a prehearing telephone conference was held on this claim.  A prehearing order \nwas entered into this matter on that same day.  Said order set forth the stipulations offered by the \nparties, their respective contentions, along with the issues to be litigated.  \nStipulations \nThe parties submitted the following stipulations, either pursuant to the prehearing order, or \nat the beginning and/or during the hearing.  I hereby  accept the jointly proposed stipulations as \nfact: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within  \nclaim. \n\n \nBELL – H207378 \n2 \n \n2. That the employee-employer-insurance carrier relationship existed on October 1,  \n2022,  when  the  Claimant sustained  an  admittedly compensable  right-hand  injury  for  which the \nRespondents have paid to and on behalf of the Claimant some medical benefits and temporary total \ndisability/TTD compensation.  Of note, the Claimant primarily suffered injuries to her right pinky \nand ring fingers. \n3. The parties agreed that the Claimant’s average weekly wage on the day of her work-     \nrelated injury was $1,347.00, which entitles her to the maximum compensations rates for a 2022 \ninjury.   \n4. The Respondents have controverted the 22% impairment rating assessed for the  \nClaimant’s right-hand injury of October 1, 2022.    \n5. In addition, all issues not litigated herein are reserved under the Arkansas Workers’   \nCompensation Act.  Specifically, during the hearing, the Claimant reserved issues, including but \nnot limited to her assertion of a further claim for her entitlement to benefits pursuant to Ark. Code \nAnn. §11-9-505.      \nIssues \n By agreement of the parties, the issues to be litigated at the hearing were as follows:  \n1. Whether the 22% anatomical impairment rating assessed by Dr. G. Thomas Frazier  \nfor the Claimant’s compensable right-hand injury of October 1, 2022, is accurate, or is the 10% \nimpairment rating appropriate.   \n2. Whether a penalty should be assessed against the Respondents for their failure to pay  \nbenefits on the impairment rating for the Claimant’s hand injury, under the provision of Ark. Code \nAnn. §11-9-802.  Said rating was made known to the parties on January 19, 2024.   \n3. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n\n \nBELL – H207378 \n3 \n \n The parties’ respective contentions are outlined below: \nClaimant: \nThe  Claimant contends  that  the permanent impairment rating  assessed  by  Dr.  Thomas \nFrazier has been controverted and is still unpaid in the amount of 22% to the right hand. \nAlso, the Claimant further contends that Respondents should be ordered to pay attorney’s \nfees associated with this matter as provided by law.   \nRespondents:  \n The Respondents contend that they accepted the Claimant’s injury as compensable and  \npaid  the  applicable  medical  and  indemnity  benefits.   The Respondents contend the Claimant’s \npermanent partial disability/PPD rating assessed by the physician is not appropriate and should be \na 10% PPD rating to the right hand.   \n             FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the documentary evidence, other \nmatters properly before the Commission, and after having had an opportunity to hear the testimony \nof  the Claimant and  observe her demeanor,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.    The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n2.     I hereby accept the above-mentioned proposed stipulations as fact. \n \n   3.    The Claimant  proved by  a  preponderance  of  credible evidence  that she  sustained  a \n22% permanent anatomical  impairment to her right  pinky and  index fingers, as  a  result  of  her \nadmittedly compensable injury of October 2022. \n4.    The Claimant proved her entitlement to an 18% penalty for the Respondents’ failure \nto initiate payment of the 10% impairment rating for her hand injury, in a timely manner pursuant  \n\n \nBELL – H207378 \n4 \n \nto  the  relevant  statutory  provisions considering  there  was  no  dispute  surrounding  this  rating.  \nHowever, the evidence does not preponderate that the Respondents acted willfully in their failure \nto  initiate payments  on the rating since  the  parties  were  actively  negotiating  settlement  of  this \nclaim.  \n           5.   The Claimant’s attorney is entitled to a controverted attorney’s fee on the indemnity \nbenefits awarded in this opinion. \n          6.    All issues not litigated herein are reserved under the Arkansas Workers’ Compensation  \nAct.          \nSummary of Evidence \nMs. Wynnefort Bell (referred to herein as the “Claimant”), was the only witness to testify \nduring the hearing.  \n            The  record  consists  of  the June  11, 2024  hearing  transcript  and  the  following  exhibits: \nSpecifically, the  documentary evidence includes Commission’s Exhibit 1,  which comprises  the  \nprehearing order  filed  on April 17,  2024, along  with the parties’ responsive filings; and  Joint \nExhibit 1, which is entitled Respondents’ Exhibit Index consisting of sixteen (16) pages. \n DISCUSSION \nWynnefort Monae Bell/the Claimant  \nAt the time of the hearing, the Claimant, age 43, was born on May 11, 1973.  She has a \nhigh  school  diploma  and  some additional education.    After  the  Claimant  graduated  from  high \nschool, she completed an online two-year college program.  According to the Claimant, the union \nobtained  payment for  her college courses  through  her  employer,  Domtar.    She  took human \nresources  and business administration  classes.   The  Claimant completed  her online classroom \n\n \nBELL – H207378 \n5 \n \ncourses in  October  of  2023,  and  she  graduated magna  cum  laude, having  achieved a  3.8  grade \npoint average. \nRegarding  her  employer,  the  Claimant  testified  that  the  main  production  at  Domtar \ninvolves the manufacture of paper. She worked in the packaging department.  According to the \nClaimant, she was responsible for packaging reams of paper.  She began working for Domtar on \nApril 2, 2001.  The Claimant was initially hired to perform employment duties as a utility worker.  \nThis position entailed emptying the trash with a forklift.   After about nine (9) or ten (10) months \nof  performing utility type-work,  the  Claimant  was  promoted  to  a  different position.    She began \nworking as an assistant sealer operator.  According to the Claimant, she essentially performed that \njob for five (5) years before becoming a sealer operator.  She basically testified that she worked in \nthat position for nearly seven (7) years.  \nThe Claimant testified: \nQ All right.  So just briefly kind of explain for us, as a Sealer Operator, what were \nyour duties?  What would you generally be doing as a Sealer Operator.  \n \nA I would load the cartons and lids in that made the finished cartons of paper.  I would, \nalso, load in the packaging to wrap the individual reams of paper.  I would, also, load in \nthe packaging to wrap the individual reams of paper.  Make sure that the pallets were, you \nknow, stacked correctly on the front end of the machine, as well, but I kept the material in \nand organized to get the packaged paper. \n \nQ So if I’m understanding, and you kind of explained it to us in the deposition, this is \nboxes already ready-to-go-out paper and it’s already in its packaging and it’s in a larger \nbox that your machine in your area is going to, in effect, seal it up, put the lid on and move \nit down the line? \n  \nA Yes.  It’s flat cartons and flat lids and then they fold.  The equipment actually folds \nthe cartons and folds the lids and inserts the wrapped reams of paper into it.  \n \nAccording  to  the  Claimant,  she sat  at a  desk  and  was  able  to  view and  monitor a  large \nportion of the machine stationed in her area.  However, there were lights and alerts on the machine, \nwhich were not visible, so she had to walk around for this reason, and to make sure the machine \n\n \nBELL – H207378 \n6 \n \nwas properly stocked for full operation.  The Claimant confirmed that she worked rotating shifts \nwhile employed at Domtar.  She sustained a compensable injury to her right hand, while working \nat  Domtar on  October  1,  2022.   At  the  time  of the Claimant’s work-related  accident, she  was \nworking the night shift.  Her working hours were from 5:30 p.m. until 5:30 a.m.  The Claimant \ntestified that her work-related accident occurred around 9:00 p.m.  Per the Claimant’s testimony, \nan alert light came on one of the machines, and she went to investigate the source of the problem.  \nShe essentially testified that seven (7) boxes  had  accumulated in  the  machine,  and  jammed it, \ncausing it to shut down.  The boxes weighed between fifty (50) and seventy (70) pounds, and they \ncontained ten (10) reams of eight and one-half (8½) by eleven (11) copy machine paper.   \nSpecifically, the Claimant explained that she immediately hit the emergency button to stop \nthe machine.  According to the Claimant, roughly six (6) cartons of paper had lids on them, as a \nresult she started to take each box out, one at a time and manually pushed them forward down the \nconveyor  belt.  The Claimant  testified  that  when  she pushed  the  last  box  out  of  the  machine,  it \ncaused the machine to engage, and it caught her hand underneath her thumb.  She denied having \nany knowledge of  what  caused the machine to start on its own.  The Claimant testified that her \nhand got caught  between  the  box  and one  of the  metal  fingers\n1\n attached  to the inside  of  the \nmachine.  According to the Claimant, her hand was stuck between the box and the metal finger for \nseveral seconds.  The Claimant specifically testified that the machine caught underneath her thumb \nand there was a puncture that went all the way across her hand.  She confirmed that she injured \nher right hand.  The Claimant essentially testified that the metal finger cut through the material of \nher  leather work gloves.   Her  testimony  demonstrated how the  metal  finger  held  her hand  and \n \n1\n The Claimant testified that there are four metal fingers on the inside of the machine.  She confirmed that \nthe purpose of the fingers is to help push the box down the machine.  There are two fingers on each side of the \nfront of the box and two on the back of the box that holds each box steady.  She described the fingers as being \nthick and held by a chain.  The Claimant testified that the fingers are six (6) inches long and three (3) inches wide.    \n\n \nBELL – H207378 \n7 \n \nmoved it through the machine on the top of the box because the carton of paper continued moving.  \nAccording to the Claimant, when it caught her ring finger, she heard it “snap” and when it reached \nher pinky finger, the box released and freed her hand.  The machine caught the Claimant’s ring \nand pinky fingers.  The Claimant sustained punctures across the webbing between her thumb and \nindex finger.  She confirmed that her ring finger and pinky both got caught in the machine in some \nform or fashion because she heard and felt them both “pop.”   \nUnder  further  questioning,  the  Claimant  admitted  that  she  was  taken  to  the company’s \nsafety office for immediate medical attention.  The security guard transported the Claimant to the \nTexarkana  Emergency  Center for further  evaluation  and  treatment.   However,  the  orthopedic \ndoctor was not able to see her  at that moment because he was performing a surgical procedure.   \nThey gave the Claimant a shot to deaden her fingers and put a splint on her hand.  The Claimant \nwas sent home until the orthopedic doctor became available, which was not until Monday.  \nDr. Smolarz performed surgery by putting a metal pin in her right ring finger.  He did not \ndo anything to her pinky finger at that time.  The Claimant testified that at the end of four weeks, \nDr.  Smolarz  removed  the  pin  from  her ring finger.   Two  weeks  after  her  surgery,  Dr.  Smolarz \nordered physical therapy.  However, Dr. Smolarz recommended that the Claimant see a specialist, \nsomeone who specializes in hand injuries.  The Claimant denied that during this time frame she \nwas  back working  at  Domtar.  She testified that she began receiving workers’ compensation \nbenefits after being off work for about two weeks.  \nTherefore, the Claimant was  scheduled  for  an appointment  to be  evaluated  by Dr. G. \nThomas Frazier, in Little Rock.   She underwent initial evaluation by Dr. Frazier on December 10, \n2022.  Dr. Frazier diagnosed the Claimant as having a chipped bone on the side of her right pinky \nfinger.   He performed surgery on her right hand/ring finger on December 14, 2022.  The Claimant \n\n \nBELL – H207378 \n8 \n \ntestified that this first surgery done by Dr. Frazier was performed to let her have more movement \nand range of motion in her ring finger.  During that procedure, Dr. Frazier put a metal plate and \nnine (9) screws in her ring finger.   In April of 2023, the Claimant went for a routine visit with Dr. \nFrazier after he performed surgery on her ring finger.  At that point, Dr. Frazier decided that the \nClaimant needed surgery on both her ring and pinky fingers.  The goal of her final surgery was \nagain, to attempt and free up the tendons in her ring and pinky fingers in order to give her more \nmovement and mobility in her fingers.  The Claimant specifically testified that Dr. Frazier made \nan incision on the side of her pinky finger to try and free up the tendons in it as well.   According \nto  the  Claimant,  this last  surgical procedure dealt solely with  the  tendons in  her ring  and  pinky \nfingers.   \nShe confirmed that the metal plate and nine (9) screws are still in her ring finger.  However, \nthe Claimant does not have a metal plate in her pinky finger.  The Claimant confirmed that she \nunderwent physical therapy following her final surgery by Dr. Frazier.   She stated that she attended \nsessions of physical therapy from October 2022 until November 2023.   \nCurrently, the Claimant explained that the use of her right hand is still extremely limited.  \nThe Claimant specifically testified that her pinky and ring fingers will not bend or straighten out.  \nShe confirmed that she does not have the ability to actively close her fingers or wrap them around \na softball or tennis ball.  The Claimant admitted that the small puncture wound between her thumb \nand index finger resolved without any lingering issues or problems in that particular area on her \nhand.   However,  the  Claimant  testified  that  she still  has a  scar in  that area  of  her  hand,  but  no \nfunctional issues with her thumb or index finger.  The Claimant agreed that she can use her left \nhand to physically move her right ring and pinky fingers.  \nUpon further questioning, the Claimant explained: \n\n \nBELL – H207378 \n9 \n \nQ Once you close your fingers around the ball and take your other hand away, what \nhappens?  \n \nA They’ll come back up into the position that they are in now. \n \nQ You can’t keep them down there? \n \nA No.  Not without using my other hand to keep them down. \n \nQ All right.  Now, as far as strength in those fingers, how would you describe them in \nterms of how you can use those with your hand? \n \nA  I can’t use them.  I isolate them like if I want to write something, I isolate the \nfingers.  It’s like this, because they won’t close. \n \nThe Claimant confirmed that she was demonstrating that she uses her left hand to put her  \nright  pinky and  ring  fingers  out  to  the  side  and use  her other  three  fingers/right hand  regularly.    \nThe Claimant agreed that in addition to going to physical therapy sessions regularly, there were \nexercises that she was doing at home to improve the condition of her right hand.  She further agreed \nthat the therapist sent her home with “putty,” and she had a splint that she put on at night to sleep \nin that kept her fingers straight.  The Claimant testified that she had pages of home exercises that \nshe would do, but her fingers still continue in the bent position.   \n She  confirmed  that  she  was  referred  by  Dr.  Frazier  for  work  hardening  for  four  to  six \nweeks.  The intent was to transition her to return back to work.  However, the Claimant admitted \nthat she does not have any effective use of her pinky and ring fingers.  After she completed the \nwork hardening, the Claimant was referred for a functional capacity evaluation/FCE, which was \ndone on November 15, 2023.  She confirmed that Dr. Frazier performed the FCE.  The Claimant \ntestified  that  they took measurements  of  her  hand.    She  performed  different  exercises,  and  they \nassessed her ability to move her fingers and use her hand.  Following the FCE, the Claimant did \nnot return to see Dr. Frazier.   \n\n \nBELL – H207378 \n10 \n \nAccording to the Claimant, Travelers Insurance paid her workers’ compensation benefits \nuntil Dr. Frazier declared her to be at maximum medical improvement.   The Claimant confirmed \nthat she continued receiving workers’ compensation benefits until she received the maximum \nmedical  improvement report from  Dr.  Frazier.   She  specifically  stated  that the  carrier paid her \nbenefits until January 19, 2024.   \nHowever, to date, the Claimant has not returned to work for Domtar, although she emailed \na  copy  of  her final  medical  report  (which  addressed  her  impairment  rating,  and  MMI  date) to \nWendy Harmon, the human resource assistant.  The Claimant confirmed that the letter from Dr. \nFrazier describes her physical limitations, resulting from  her  compensable  injury. Her physical \nabilities  based  on  the  functional  capacity  evaluation shows that the  Claimant can lift  ten  (10) \npounds  occasionally,  twenty-five  (25)  pounds  on  a  constant  basis, and  fifty  (50)  pounds \noccasionally.        \nThe Claimant testified that she was told that the workers’ compensation carrier would not \ninsure her if she returned to work at Domtar.  She confirmed that she has not received any payments \nfor the impairment rating that was assessed in March 2024.  The Claimant testified that she had \ndiscussions with Trevelyan Hodge, Jennifer Beard, the union president, and Charles Swilley, the \nunion representative, that she was not receiving any compensation.  She testified that she was told \nby Mr. Hodge that the workers’ compensation carrier would not insure her with a 22% rating, and \nthat her rating needed to be changed to a 10%.  According to the Claimant, she was told that she \ncould  go  to  the  company  doctor  and  have  him  change  her  rating  to  10%  so  she  could  return  to \nwork.  However, the Claimant did not specify who told her to go to the company doctor and have \nhim change her rating a 10% so that she could return to work.  The Claimant denied anybody ever \nset her up with an appointment to see a company doctor to have her rating changed.  \n\n \nBELL – H207378 \n11 \n \nThe Claimant denied that anybody indicated to her, other than during her conversation with \nMr.  Hodge,  that  there  was  a  dispute  about  the  impairment  rating.    However,  the  Claimant \nconfirmed that there is a later report in February 2024, which expresses an opinion regarding her \nimpairment  rating.    According  to  this doctor’s opinion,  the  Claimant  sustained only a  10% \nimpairment rating.  However, the Claimant denied having seen this doctor.  Although the report \nwas rendered on February 1, 2024, the Claimant confirmed that she has not received any payments \nassociated with that rating.  The Claimant testified that she has survived financially by using her \nincome tax refund that she received in February to pay some of her bills.  She also had to rely on \nhelp from other people and a lot of her bills have gone unpaid.  The Claimant testified that she \nfiled for unemployment benefits, and she started receiving those benefits in April.  According to \nthe  Claimant,  she  received  $200.00  weekly unemployment  benefits  for  twelve  (12)  weeks.  \nHowever,  the  Claimant  denied  that  these  benefits  were  not  enough  to  take  care  of  her  financial \nneeds.  As a result, she filed for bankruptcy in April.   \nShe admitted that she checked the Domtar website for the availability of other jobs within \nDomtar that she could perform.  The Claimant testified that she has applied for a couple of clerical \njobs at Domtar since Dr. Frazier released her from his care, but management did not select her for \neither position.  In April, a human resource position became available at Domtar, and the Claimant \napplied for that position.  However, the Claimant received a denied for that position a couple of \nweeks ago.   \nThe Claimant admitted she started applying for jobs outside of Domtar in April.  She began \nworking for Bi-State on April 29, 2024, as a municipal court clerk, processing traffic tickets, fines, \nand various other related tasks.  In that position, the Claimant confirmed that she is managing with \nher right hand.   According  to  the  Claimant,  when doing  the  entries  for tickets  received  and \n\n \nBELL – H207378 \n12 \n \nchecking on the status of tickets, she types at a slower rate because she uses only two fingers on \nher  right  hand to  type.  The  Claimant  testified  that  she also has  trouble  writing  out  the  actual \ncitation forms directing individuals to appear for court because she must isolate her pinky and ring \nfingers when she writes.  Per the Claimant, her hand “cramps up” and her fingers “stack” together \neven when she isolates them.  During the hearing, the Claimant demonstrated how she isolates her \nfingers when writing.  (Tr. 48) \nThe  Claimant  denied  that  she takes  any  prescription  medications  or  over-the-counter \nmedication for her hand injury.   She denied using a brace or any type of assistive device for her \nhand.  The Claimant admitted that she filed for Social Security Disability benefits in September of \n2023.  However, she has other medical issues outside of her work-related injury.  The Claimant \ntestified  that  she has  been  diagnosed  with  Sjogren  syndrome  which  is  an  autoimmune  disorder.  \nShe confirmed that she had this condition while working at Domtar.  However, the Claimant denied \nthat any of her Sjogren symptoms have changed or worsened.  She confirmed that she has other \nconditions for which she filed for Social Security Disability.  According to the Claimant, she also \nsuffers from lumbar degenerative disc disease, secondary to her Sjogren syndrome condition.  She \ntakes a muscle relaxer and an anti-inflammatory for her back symptoms. \nUnder  further  questioning,  the  Claimant  denied  having  received  a  payment  on  the \nimpairment rating as of the date of the hearing.  She testified that in her current position, she has \nthe flexibility to stand, walk, and move around in her current position.  The Claimant denied she \nhas received any information from Domtar, nor have they contacted her about her job status.  Her \nhourly rate of pay  while  working for  Domtar was $33.58.  She currently  makes only $14.00 an \nhour, in her current position as a court clerk.                              \n\n \nBELL – H207378 \n13 \n \nThe  Claimant  explicitly  confirmed  again  that  she  has  not  received  any  permanent \nimpairment benefits since the doctors provided the impairment ratings on January 19, 2024, and \nFebruary 1, 2024.  She agreed that based on her conversations with the HR people at Domtar, she \nbelieves  that  they  have  not  treated  her  fairly.    The  Claimant  testified  that  she  has  worked  there \ntwenty-one  and  a  half (21½)  years without  any  type  of  disciplinary  action or  safety  incidents.  \nAccording to the Claimant, she has never had so much as a paper cut.   The Claimant stated that it \nseems as though they are doing everything within their power to keep her from returning back to \nwork at Domtar.   \nOn cross-examination, the Claimant confirmed that she began working at Domtar in 2001.  \nShe  finished  high  school  in  1989.   The  Claimant  later obtained an online associate’s degree in \nbusiness management while working at Domtar as part of an incentive program through the union.          \nAbout her work at Domtar, the Claimant confirmed that she worked  as a  sealer, and the \nmachine she ran is a called a sheeter.  In other words, a sealer operator runs the sheeter machine.  \nShe admitted to having worked 12-hour rotating shifts while employed by Domtar.  \nThe Claimant confirmed that while working on October 1, 2022, she sustained an injury to \nher right hand.  She  confirmed she got her hand  caught in the machine until it released it.  The \nClaimant  agreed  that  the  primary injuries  were  to her ring  and  pinky fingers.  According  to  the \nClaimant, doctors addressed treatment  to  those  specific  fingers.    She  confirmed  again  that  Dr. \nSmolarz performed her first surgery in the form of inserting a pin in her ring finger.  The Claimant \nunderwent physical therapy and then, Dr.  Smolarz referred  her  to  Dr.  Frazier  for  continuing \ntreatment.  During the Claimant’s first surgery under Dr.  Frazier’s care, he put a plate and screws \nin  her  ring  finger.  The Claimant  confirmed  that  she underwent physical therapy  after  that \n\n \nBELL – H207378 \n14 \n \nprocedure.  Next, in April of 2023, Dr. Frazier operated on both fingers to release the tendons via \na procedure described as a tenolysis.   \nUnder further questioning, the Claimant admitted that she has not had surgery on any other \npart of her hand or body.  She confirmed that in January of 2024 she received the letter from Dr. \nFrazier where he determined that she had reached maximum medical improvement for her hand \ninjury.  The Claimant admitted that she has not seen Dr.  Frazier since October or November of \n2023.  She admitted that she does not have any other visits scheduled with either Drs. Smolarz or \nFrazier, or any other medical provider about her hand and/or fingers.   \nShe agreed that the functional capacity evaluation indicated that she could medium duty \nwork.  The Claimant confirmed that as a municipal clerk, she takes payments, does filing, shred \ndocuments, and  computer  entry.    She  confirmed  that  she  filed  for  Social  Security  Disability \nbenefits  in  September  of  2023.    The  Claimant  agreed  that  in  addition  to  her  other  conditions \npreviously named, she has arthritis in her neck.   \nThe Claimant admitted that there is a dispute regarding the extent of the impairment rating \nin her claim.  She admitted that she did not have any visits scheduled with any medical provider \nwho treated her fingers or hand.  The Claimant admitted that Dr. Frazier’s letter was dated January \n19, 2024, and that she had not received any indication there was an impairment rating before that \ndate.   \nUnder further questioning, the Claimant admitted that she did not ever personally contact \nTravelers or the insurance company for Domtar and ask them to start making PPD payments.  The \nClaimant acknowledged that she was aware there were negotiations going on about her claim and \nthe extent of the impairment rating.  The Claimant testified that there are other positions at Domtar \n\n \nBELL – H207378 \n15 \n \nthat would fit in the scheme of what Dr. Fraizer said she could do.  However, she admitted that \nthis was her own opinion.        \n                                                    Medical Records  \n A  review  of  the  medical  evidence  records  shows a  Work  Hardening  Plan  of  Care  dated \nAugust 29, 2023, which was authored by Occupation Therapist, Brian M. Murphy, OTR/L.  The \nexaminer diagnosed the Claimant with: “1.  Closed displaced fracture of proximal phalanx of right \nring  finger  with  routine  healing.   2.  Muscle  weakness  of  right  upper  extremity.”  Therapy \ndiagnosis:  Finger  Stiffness; and Muscle Weakness.  The examiner’s  assessment: “Pt  displays \ndecreased tolerance with lifting/carrying tasks and limited finger ROM with RUE, limited grasp \nstrength  RUE  which  limits  her  ability  to  return  to  work  at  her  previous  position  (Machine \nOperator).”       \nOn  November  15,  2023,  the  Claimant  underwent  a  Functional  Capacity  Evaluation  at \nChristus St. Micheal Outpatient Rehab, in Texas by Brian M. Murphy, OTR/L.  At that time, the \nexaminer found that   per   the   U.S.   Department   of   Labor   standard   for Physical Demand \nClassification (PDC), the   Claimant   qualified   to   work   at   a   MEDIUM   physical   demand \nclassification. Per  this  classification,  the  Claimant  can  occasionally  lift  fifty  (50) pounds, \nfrequently lift twenty (20) pounds, and constantly lift ten (10) pounds.     \n On  January  19,  2024,  Dr.  G.  Thomas  Frazier,  the  Assistant  Professor,  Department  of \nOrthopedic  Surgery,  Section  of Hand, and  Upper  Extremity  Surgery  for  UAMS faxed  the \nfollowing letter to the adjuster and case manager: \n First of all, I want to apologize for the delay in getting back to you in regard to the FCE  \nwhich was performed on your Claimant and my patient, Ms. Bell.  I have had a chance to \nreview the results of the FCE. \n \nBased  on  my  interpretation  of  the  FCE,  it  is  my  opinion  that  Ms.  Bell  performed  at  a \nsatisfactory level during the FCE and that the results of the FCE are valid.  It is also my \n\n \nBELL – H207378 \n16 \n \nopinion that Ms. Bell may return to work that is classified as medium in severity based on \nthe  Department  of  Labor  Standards  for  Physical  Demand  Classification  System.    This \nincludes lifting up to 50 lbs. on occasion, up to 25 lbs. on a frequent basis, and up to 10 \nlbs. on a constant basis.   \n \nAlso,  based  on  Ms.  Bell’s  most  recent  examination,  and  based  on  the  guides  to  the \nevaluation of permanent impairment, 4\nth\n edition, as published by the AMA, it is my opinion \nthat she has sustained a 22% permanent impairment to her right hand, which corresponds \nto  a  20%  permanent  impairment  to  the  right  upper  extremity.    In  determining  this \nimpairment, I have referenced figure 19 on page 3/32, figure 21 on page 3/33, figure 23 on \npage 3/34, and table 34 on page 3/65. \n \nThese opinions are submitted within a reasonable degree of medical certainty.  \n \nIf  I  can  be  of  further  assistance,  or  provide  you  with  further  information,  please  do  not \nhesitate to contact me.  \n  \nOn February 1, 2024, Dr. Sean Lager, a Board-Certified Orthopedic Surgeon of Sports  \nMedicine, opined particularly in reference to the Claimant’s hand injury. \nMy review refutes the 22% hand impairment concerning a 20% upper extremity based on \nrange  of  motion  and  possibly  grip  strength.   Peer  review  recommends  a 10%  hand \nimpairment converting to 9% upper extremity converting to a 5% whole person impairment \nto the right hand based on range of motion deficits of the ring and small finger.  (Figure \n19, Page 32, Finger 21, Page 33, and Figure 23, Page 34. \n \nTo summarize the injured worker would have a 5% whole person impairment based on the \ndata that has been provided: \n \nRight hand 10% based IR = 9% UEI = 5% WPI (Figure 19, Page 32, Figure 21, Page 33, \nand  Figure  23,  Page  34)  AMA  Guides  the  Evaluation  of  Permanent  Impairment  Fourth \nEdition. \n \n                    ADJUDICATION \nA. Anatomical Impairment \nThe  crucial  issue  for  determination  is  whether  the  Claimant  sustained  a 10%  permanent \nphysical impairment to her right hand/pinky and ring fingers; or if she sustained a 22% permanent \nanatomical  impairment  rating  to her  hand/fingers resulting  from her  compensable  injury  of \nOctober 1, 2022.   \n\n \nBELL – H207378 \n17 \n \nThe Respondents contend that the Claimant is entitled to a 10% impairment rating for her \nright hand.  However, the Claimant contends that she is entitled to a 22% impairment rating for \nher right hand/pinky and ring fingers due to her compensable hand injury of October 2022.       \nAn injured worker must prove by a preponderance of the evidence that she is entitled to an \naward for a permanent physical impairment.  Any determination of the existence or extent of  \nphysical impairment shall be supported by objective and measurable findings.  Ark. Code Ann. § \n11-9-704(c)(1).  Pursuant to Ark. Code Ann. § 11-9-522(g) and our Rule 099.34, the Commission \nhas  adopted  the American  Medical  Association  (AMA)  Guides  to  the  Evaluation  of  Permanent \nImpairment (4th ed. 1993) to be used to assess anatomical impairment.   \nPermanent  benefits  shall  be  awarded  only  upon  a  determination  that  the  compensable \ninjury was the major cause of the disability or impairment.  Ark. Code Ann. §11-9-102(4)(F)(ii)(a).   \n“Major cause” means “more than fifty percent (50%) of the cause,” and a finding of major cause \nshall   be   established   according   to   the   preponderance   of   the   evidence.    Ark.   Code   Ann. \n§11-9-102(14)(A).   Preponderance  of  the  evidence  means  evidence  having  greater  weight  or \nconvincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W. 3d \n252 (2003). \n  Based on the record as a whole, without giving the benefit of the doubt to either party, I \nfind that the preponderance of the evidence demonstrates that the Claimant’s right  hand work-\nrelated injury  was  significant  and was  the  major  cause  of  her 22%  permanent  anatomical \nimpairment, as assigned by Dr. Thomas Frazier.  The basis for my conclusion is outlined below.  \nIn the claim at bar, the Claimant had worked at Domtar for over twenty-one (21) years as \nof  October  1,  2022.    At  that  time,  the  Claimant  worked  as  a  machine  operator.    The  Claimant \nsustained an admittedly compensable injury while working when her right hand was caught in a \n\n \nBELL – H207378 \n18 \n \nmachine.  She sustained injuries primarily to her right pinky and ring fingers.  The Claimant was \ndiagnosed with a closed displaced fracture to the proximal phalanx of the fourth digit, and stiffness \nand weakness of the upper right upper extremity.              \nThe Respondents accepted this claim and paid benefits to and on behalf of the Claimant \nfor  her  admittedly  compensable  injury  of  October  2022.    They  have  paid  for  three  surgical \nprocedures to the Claimant’s right hand/ pinky and rings fingers under the care of Drs. Smolarz \nand Thomas.  \nSpecifically, Dr. Smolarz performed the first surgery to the Claimant’s ring finger, which \nresulted  from  her compensable  injury in October  2022.   During this  surgical  procedure,  Dr. \nSmolarz put a pin in the Claimant’s ring finger.   Thereafter,  the Claimant  underwent  physical \ntherapy to her right hand with no improvement.  Ultimately, Dr. Smolarz decided that the Claimant \nneeded to seek medical care for her fingers from a hand specialist.  At that point, the Claimant was \nscheduled for an appointment to be evaluated by Dr. Frazier.  On December 10, 2023, Dr. Frazier \nfound that the Claimant needed a second surgery to her ring finger.  Therefore, on December 14, \nDr.  Frazier  performed  a  second  surgery  to  the  Claimant’s  ring  finger,  which  included  the \npermanent placement of a metal plate and nine (9) screws.  Hence, as of the date of the hearing, \nthis hardware remained in the Claimant’s ring finger.  Dr. Frazier performed a third surgical \nprocedure, tenolysis, to the Claimant’s right ring and pinky fingers to try to release the tendons in \nher fingers to give her more useful mobility and movement in these fingers.  Although the Claimant \nunderwent these surgical  treatment  modalities and multiple  sessions  of physical  therapy, which \nalso included work hardening and home exercises, her fingers have not responded well to any of \nthese treatment modalities.   \n\n \nBELL – H207378 \n19 \n \nNevertheless,  on  January  19,  2024,  the  Claimant  treating  physician/a  hand  specialist, \nopined that the Claimant had reached maximum medical improvement with respect to her right-\nhand injury.  At that time, Dr. Frazier also assessed the Claimant with a 22% permanent anatomical \nimpairment due to the compensable injuries she sustained to her right hand, namely to her pinky \nand ring fingers.  Dr. Frazier assessed this rating utilizing the AMA Guides to the Evaluation of \nPermanent  Impairment (4\nth \ned.  1993).    To  the  contrary,  on  February  1,  2024,  Dr.  Sean  Lager, \nassigned  the  Claimant  a  10%  impairment  rating  for  her  right-hand  injury by  means  of the \nappropriate edition of the Guides.  However, Dr. Lager did not conduct a physical examination of \nthe Claimant’s right hand. Instead, Dr. Lager’s assessment of a 10% impairment to the Claimant’s \nright hand was derived solely from the Claimant’s medical records.   \nConsidering all the foregoing, I find that Dr. Frazier’s expert medical opinion is very \nthorough and rigorously well-reasoned.  Most notably, Dr. Frazier’s expert opinion bears with the \nGuides, documentary  medical  evidence  of  record,  and my own visual  observations  of  the \nClaimant’s demonstrations of her complete lack  of movement in her affected fingers during the \nhearing.  The Claimant’s fingers are severely constricted.  She demonstrated a total inability  to \nstraighten the affected fingers. In fact, the Claimant’s fingers have been reduced to a permanently \nbent position due to her compensable job-related injury October 1, 2022.  These contractures of \nthe Claimant’s affected fingers interfere with most of her daily tasks and functionality of her right \nhand, which include simple tasks such as writing and data entry.  During the hearing, the Claimant \nhad to take her left hand to straighten her affected fingers.  Still, at that point, the Claimant was \nunable to completely straighten her fingers.  Once the Claimant let go of her fingers with her left \nhand,  they  went  back  to  their  original bent position.  In  fact,  the  Claimant  lacked any  type  of \nfunctional use or range of motion in her right pinky and ring fingers.    \n\n \nBELL – H207378 \n20 \n \nAs such, I have attached significant weight to the Claimant’s treating hand specialist, Dr. \nFrazier’s expert opinion due to all the above and following reasons. Accordingly, I have afforded \nonly  minimal  weight  to  Dr. Lager’s expert  opinion.   Specifically,  Dr.  Lager  conducted  a  peer \nreview and his rationale for the impairment rating was based solely on the Claimant’s clinical \nhistory and medical records.  Dr. Lager did not have the opportunity to physically see or observe \nthe Claimant’s fingers.   It is  noteworthy that  even  Dr.  Lager  confirmed  in  his  report  that  the \nClaimant has range of motion deficits of the ring and small fingers.   My own observation of the \nClaimant’s fingers revealed that she has significant deficits of range of motion in her fingers that \neven a layperson would be able to easily notice when engaged in routine face-to-face interaction \nwith  the  Claimant.   The  Claimant credibly  testified  during  the  hearing  that  she  is  right  hand \ndominate and is unable to write normally with her right hand due to the range of motion deficits \nin  her  fingers.   Moreover,  I found  the  Claimant  to  be  a  credible  and  forthcoming  witness \nconcerning the abnormalities, deficits, and deformities in her fingers even when trying to perform \neven menial tasks, such  as simply signing her name.  Her testimony comports with the medical \nrecords, particularly, Dr. Frazier’s expert opinion and the FCE report.   \nHere, the Claimant’s 22% physical impairment to her right pinky and  ring  fingers  are \nsupported by objective and measurable findings.  Specifically, the medical records of evidence are \nreplete  with  objective  medical  findings,  including  but  not  limited  to  significant  contractures, \nstiffness, lack of any functional and muscle weakness of both fingers.  Hence, of course, all the \nexistence of  all  of  these objective  and  measurable  findings resulted  from  the  Claimant’s \ncompensable hand injury of October 1, 2022.   \nMoreover, the Claimant confirmed that she did not suffer any prior problems with her right \nhand/fingers or any related symptomology that predated her compensable injury of October 2022.  \n\n \nBELL – H207378 \n21 \n \nIn fact, the evidence shows that the Claimant was able to perform her job duties which required \nthe ability use of her hands and perform hand intensive employment duties.  However, since her \naccident, the Claimant has not been able to return to work at Domtar due to her physical restrictions \nand  limitations  that  have  resulted from  her work-related right-hand injury.   As  such,  I am \npersuaded to find that the evidence preponderates that the Claimant’s October 1, 2022, accidental \nwork-related injury was the major cause of the Claimant’s 22% permanent impairment to her right \nhand/pinky and ring fingers. \nB. Installment Penalty \nArk. Code Ann. §11-9-802 (b) states: \nIf any installment of compensation payable without an award is payable without an award \nis not paid without fifteen (15) days after it becomes due, as provided in subsection (a) of \nthis  section,  there  shall  be  added  to  the  unpaid  installment  an  amount  equal  to  eighteen \npercent  (18%)  thereof  which  shall  be  paid  at  the  same  time  as,  but  in  additional  to,  the \ninstallment unless notice of controversion is filed or an extension is granted the employer \nunder §11-9-803 or unless such nonpayment is excused by the commission after a showing \nby  the  employer  that,  owing  to  conditions  over  which  he  or  she  had  no  control,  the \ninstallment could not be paid within the period prescribed.  \n \nAdditionally, Ark. Code Ann. §11-9-802 (e) provides:  \nIn  the  event  that  the  Commission  finds  the  failure to  pay  any  benefit  is  willful  and \nintentional the penalty shall be up to thirty-six percent (36%) payable to the Claimant. \n \nIn the present matter, the Respondents contend that the Claimant sustained a 10%  \npermanent impairment rating to her hand for her compensable injury.  However, to date they have \nfailed to pay  any benefits to the Claimant  for this rating.   Therefore,  I find that the Claimant is \nentitled to a 18% penalty for Respondents’ failure to make installment payment to the Claimant \non the 10% rating since there was no dispute concerning the accuracy of this rating.  \n   \n\n \nBELL – H207378 \n22 \n \n Here, the evidence does not preponderate that the Respondents’ failure to pay any benefit \non  this  installment or  the  22%  rating was willful  and  intentional  concerning  the  parties  were  in \nactively involved in negotiation discussions of a possible settlement of this claim up until the night \nbefore the hearing. (Tr. 9)         \n C.       Attorney’s Fee \nThe Respondents have stipulated that they controverted this claim for additional benefits  \nin its entirety.  Therefore, the Claimant’s attorney is entitled to a controverted attorney’s fee on all \nindemnity benefits awarded to the Claimant, pursuant to Ark. Code Ann. § 11-9-715. \n \n                          AWARD \n \nThe Respondents are directed to pay benefits in accordance with the findings of fact set \nforth herein this Opinion.   \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \n  Per Ark. Code Ann. §11-9-715, the Claimant’s attorney is entitled to a 25% attorney’s fee \non the indemnity benefits awarded herein.  This fee is to be paid one-half by the carrier and one-\nhalf by the Claimant.  \nAll issues not addressed herein are expressly reserved under the Act. \nIT IS SO ORDERED. \n \n       __________________________ \n       CHANDRA L. BLACK \n       ADMINISTRATIVE LAW JUDGE","textLength":45447,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC NO.: H207378 WYNNEFORT BELL, EMPLOYEE CLAIMANT DOMTAR CORPORATION, EMPLOYER RESPONDENT FARMINGTON CASUALTY COMPANY, TRAVELERS INDEMINTY CO., CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 9, 2024 A hearing was held before Administrative Law Judge Chandra L. Blac...","outcome":"granted","outcomeKeywords":["granted:6"],"injuryKeywords":["back","lumbar","neck","fracture"],"fetchedAt":"2026-05-19T22:48:34.014Z"},{"id":"alj-H207068-2024-09-09","awccNumber":"H207068","decisionDate":"2024-09-09","decisionYear":2024,"opinionType":"alj","claimantName":"Gary Ewing","employerName":"Reliable Pultry Supply, Inc","title":"EWING VS. RELIABLE PULTRY SUPPLY, INC. AWCC# H207068 September 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/EWING_GARY_H207068.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EWING_GARY_H207068.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION  \n \n CLAIM NO. H207068  \n \nGARY EWING,  \nEMPLOYEE                                                                                                                CLAIMANT   \n                                                                                                           \nRELIABLE PULTRY SUPPLY, INC.,  \nEMPLOYER                                                                                                            RESPONDENT \n \nACADIA INS. CO./UNION STANDARD INS. CO., \nCARRIER/THIRD PARTY ADMINISTRATOR                                                    RESPONDENT     \n \n                                                                                        \n  \nOPINION FILED SEPTEMBER 9, 2024    \n  \nA hearing was held before Administrative Law Judge Chandra L. Black, Miller County, Texarkana, \nArkansas.  \n  \nClaimant represented by the Honorable Gregory R. Giles, Attorney at Law, Texarkana, Arkansas.     \n  \nRespondents represented by the Honorable Jarrod Parrish, Attorney at Law, Little Rock, Arkansas.  \n   \n \n                                                 STATEMENT OF THE CASE  \nA hearing was held in the above-styled claim on June 11, 2024 in Texarkana, Arkansas.  A \nprehearing telephone conference was held in this matter on February 28, 2024.  A prehearing order \nwas entered on that same day.  This prehearing order set forth the stipulations proposed by the \nparties, their contentions, and the issues to be litigated.  \n \n                  STIPULATIONS \nThe parties submitted the following stipulations, either pursuant to the prehearing order, or \nat the start of the hearing.  I hereby accepted the following stipulations as fact:  \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n \n\nEWING – H207068  \n  \n  \n2  \n  \n2. That the employee-employer-carrier relationship existed at all relevant times including \non or about August 10, 2022, when the Claimant sustained a compensable injury to his \nright bicep and cheek. \n \n3. The Claimant’s average weekly wage on August 10, 2022, was $1, 2226.35, entitles \nhim to weekly compensation rates for temporary total disability (TTD) benefits is \n$790.00; and his rate for permanent partial disability (PPD) compensation is $593.00. \n \n4. The Respondents accepted the injuries to the Claimant’s right bicep and cheek as \ncompensable and paid appropriate benefits associated with these conditions.  However, \nthe Respondents have controverted the alleged cervical spine injury   \n \n5. All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nAct.  \n     \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing were as follows:  \n1. Whether the Claimant sustained a compensable cervical spine injury on August 10, \n2022.  \n  \n2. Whether the Claimant is entitled to reasonable and necessary medical benefits for his \nneck condition to include the neck surgery and physical therapy treatment. \n3. Whether the Claimant is entitled to TTD from November 10, 2023, until November 30, \n2023.   \n4. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n \n  The respective contentions of the parties are as follows:       \n  \nClaimant:  \n  \n  The Claimant contends that he sustained compensable injuries to his neck on August 10, \n2022, or in the alterative, as a compensable consequence of after to returning to work on light duty \nand over-using his left upper extremity to the extent he injured his neck. Claimant had absolutely \nno neck problems or radicular symptoms in his arms prior to the work relate event. \n\nEWING – H207068  \n  \n  \n3  \n  \nThe Claimant further contends that the surgery to his neck recommended by Dr. Calhoun \nis reasonable, necessary and related such that Respondents should be ordered to pay for same.  \nClaimant further continues that he should be ordered to pay attorney’s fees as provided by \nlaw.     \nRespondents:  \n  \nRespondents contends that the Claimant did not suffer a cervical spine injury in August  \n \n10, 2022.  It is Respondents’ position the Claimant’s need for medical treatment, if  any, is \nassociated with that body part is related to preexisting and underlying problems not an acute injury.    \n                     FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear the testimony of the witness and observe his demeanor, I hereby make the following findings \nof fact and conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.      The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n          \nclaim. \n \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.      The Claimant proved by a preponderance of the evidence that he sustained a    \n \n                       compensable injury his neck on August 10, 2022.  \n           \n          4.        The Claimant proved by a preponderance of the evidence that the medical treatment   \nof  record  he  received  was  reasonable  and  necessary  treatment  for  his  neck \ncompensable August 10, 2022, neck injury, including the surgery by Dr. Calhoun.   \n         5.       The Claimant proved his entitlement to temporary total disability from November 10,     \n        2023, until November 29, 2023. \n\nEWING – H207068  \n  \n  \n4  \n  \n6. The Claimant’s attorney is entitled to a controverted attorney fee. \nSummary of Evidence \nMr. Gary Ewing (referred to herein as the “Claimant”), was the only witness to testify \nduring the hearing.  \n            The record consists of the June 11, 2024 hearing transcript and the following exhibits: \nSpecifically, Commission’s Exhibit 1 comprises the Commission’s Prehearing Order filed on \nFebruary 28, 2024 and the parties’ responsive filings; Claimant’s Abstract of Table of Content \nconsisting of fourteen (14) numbered pages was marked as Claimant Exhibit No. 1; Claimant’s \nMedical Record Exhibit consisting of two hundred and elven (211) pages was marked Claimant’s \nExhibit 2; Respondents’ Hearing Exhibit Index Medicals consisting of thirty-one (31)  numbered \npages was marked as Respondents’ Exhibit 1; and Respondents’ Hearing Exhibit Index Non-\nMedicals consisting of fourteen (14)  numbered pages was marked as Respondents’ Exhibit 2. \n                 Testimony \n  The Claimant completed the eleventh grade and obtained their GED.  He began working \nfor Reliable Poultry full time in 2017.  According to the Claimant, Reliable supplies chicken \nhouses with equipment, supplies and materials.  They perform repair work on them, and they build \nfrom the ground up. Upon the date of hire, the Claimant was a warehouse hand.  Subsequently, the \nClaimant was assigned to go in the field and do service work.  He became a service technician in \nthe middle of 2018.  The Claimant continued to be employed by Reliable as of the date of the \nhearing. However, since his return to work following his injury, he has been assigned duties to \nwork in the warehouse.  \n  Prior to going to work for Reliable, the Claimant was on Social Security Disability benefits.  \nHe drew these benefits from 2010 to 2017.  The nature of the Claimant’s disability included four \n\nEWING – H207068  \n  \n  \n5  \n  \nback surgeries. He testified that his last two back surgery were his worst ones.  The Claimant \nsustained prior injuries while working for Aero Metal Craft.  He testified that he has been involved \nwith prior workers’ compensation cases twice, but he needed up settling the claims.   The Claimant \nadmitted that he decided to participate in Social Security’s return to work program. He was able \nto successfully return to work for Reliable.  Ultimately, the Claimant successfully transitioned off \nof disability and continued to work for Reliable. The Claimant denied that he had any medical \nproblems of any kind that were limiting his ability to do his before August 10, 2022. \n  Regarding his work accident at Reliable on August 10\n, \n2022, the Claimant testified that he \nwas working in McNeil, Arkansas at a chicken farm.  The Claimant testified that he was changing \nout the machine of the ceiling of the chicken house.  He had gotten a call to that he needed to go \nto that location to change out the vent machine of one of the chicken houses.  The Claimant testified \nthat the vent weighed approximately fifty pounds. \n  Specifically, the Claimant stated: \n  Q What were you going to have to do to work on or replace this vent machine? \n A We was going to have to take it down out of the ceiling.  You make sure the breaker \nis off.  You unwire it out of the junction box, and when I unwired it, the cord was pushed \nup on top of the board it was mounted to, so I just pulled the cord down, unwired it, well, \nit all fell to the floor.  \n \n Q Were you standing on a ladder at the time? \n A I was on an eight-foot ladder.  Yes, sir.  \n Q All right. \n A And Eddie was working off of a six on the lower side of the house where the \nmachine was getting it ready. \n \n Q So you were going to take the vent machine down out of the ceiling area? \n \n A Yes, sir. \n\nEWING – H207068  \n  \n  \n6  \n  \n \n Q What happened when tried to do that?     \n \n A  We took the lag bolts out of it, and I told him, I said when we get it loose, I’m going \nto throw it back here behind me.  That way it’s between the water line and the wall out of \nour way so we don’t trip over it.  He said that’s fine, so we took it loose.  I took it and I \nthrowed it...... \n   \n Q At the time you took it loose, did you anticipate that it was free and clear? \n \n A Yes.  But in a dim chicken house, you can’t see everything correctly, and the lights \nwas all on bright. \n \n Q Okay. \n \n A  So when I throwed the machine, it went away from me, and when it went away, I \nwent to turn about the time, I heard something, and I looked back and it was swinging back \ntowards me. \n \n Q Okay. \n  \n A And when it hit me, Eddie was reaching for me, but it’d done knocked me away \nfrom him.   \n \n Q So it was still connected to the extent that when he tried to throw it, it actually \nswung back and struck you? \n \n A There was one staple at the end of that board covered in dust that that cord was still \nattached to and neither one of saw it.  I didn’t see it, and I’d pulled on the cord. \n \n Under further questioning, the Claimant testified that the machine hit him in the face and  \nthat is when the ladder started falling.  The Claimant was hit on the right cheek.  When the Claimant \nfell, he and the ladder landed on the machine.  His face was cut and bleeding.  The Claimant also  \nalso sustained a cut across his bicep, but it did no bleed out.  He confirmed that he fell on his right  \narm.  The Claimant explained that the location of were his arm was actually cut was on his lower \nbicep, underneath the lower area.   \n The Claimant was taken to the emergency room in Magnolia.  They put stitches in his arm.   \nHowever, the cut on his face did not require stitches.  The Claimant agreed that medical records  \n\nEWING – H207068  \n  \n  \n7  \n  \nshow he had a nine-centimeter gash underneath of his arm.  He was treated in the emergency room \nand discharged home, with instructions to follow-up with his family physician.  The Claimant  \nsaw his family physician, Dr. Caldwell about the stitches. On August 25, 2022, the Claimant  \nfollowed-up with his doctor.  His family doctor referred him to wound care treatment, which was \nat a Nashville hospital.  The Claimant testified that he continued to treat with Dr. Caldwell after \nthe stitches had been removed.  According to the Claimant, when he went to see Dr. Caldwell  \nbefore the stitches were removed, he complained about his face still being swollen, and his head \nand down his collarbone being swollen and his that his neck was hurting.  However, when asked  \nif he specifically complained about his neck hurting at that time, the Claimant replied, “No, I don’t.  \nI just told him I was swoled up and it was hurting “clean down” in my shoulder and arm.” \n He confirmed that that he was hurting on his right side. Dr. Caldwell recommended that  \nThe Claimant have an MRI of his neck and his upper extremities.  During that time, there was  \nwas a period of time when the Claimant was paid workers’ compensation benefits.  He stated he \nwas paid workers benefits until about December.   The Claimant denied that he had any prior \nproblems with his neck or the type of symptoms that he was complaining of in his right arm and \nside at that time.  According to the Claimant he had never had any problems his left arm before his \nwork accident. However, the Claimant agreed that he developed problems in his left arm after the \naccident, which included pain issues in in it and numbness.   \n  In Dr. Caldwell’s progress note of September 27, 2022, he makes note of the Claimant \nhaving used his left upper extremity to do a majority of his work since the time of his injury.  He \nalso noticed that the Claimant had decreased strength bilaterally and complained his neck now \nhurt.  After the Claimant received some testing, he came under the care of an orthopedic specialist, \n\nEWING – H207068  \n  \n  \n8  \n  \nDr. Walden.  While under the care of Dr. Walden, he tried to obtain some physical therapy treatment \nfor the Claimant, but the carrier denied this treatment until February 10, 2023. \n  The Claimant was released to return to go back to work in December 2022, with a two-\npound lifting restriction.  He confirmed that his employer allowed him to return to work with this \nlimitation.  The Claimant testified that he started physical and some occupational therapy as well.  \nPer the Claimant, he went through twelve to fourteen weeks of therapy.  At that time, the Claimant   \ntestified that he was having symptoms of pain that about a seven or eight.  According to the \nClaimant, he was unable to do the therapy most of the time.  \n  He underwent an MRI of his neck for the first time. The Claimant confirmed that Dr. \nWalden references some nerve conduction studies and there was a mention of possible treatment \nfor carpal tunnel on the right side.  Although there was mention of surgery, the Claimant told Dr. \nWalden he did not wish to undergo carpal tunnel surgery if he did not have to do so.  The Claimant \nconfirmed that he did not have any carpal tunnel treatment or surgery.  He further confirmed that \nhe did not have any carpal tunnel treatment.        \n  Ultimately, Dr. Walden recommended that the Claimant be seen by a neurosurgeon, and he \nalso provided his thoughts of what was going on with the Claimant’s neck.  The Claimant testified \nthat after Dr. Walden referred him to Dr. Calhoun, the workers’ compensation carrier refused to \npay for any more of his treatment.   He confirmed that Dr. Calhoun wanted him to having surgery. \nHowever, the Claimant agreed that he the next doctor after he saw Dr. Walden, he saw Dr. John \nBracey at UAMS.  According to the Claimant, the workers’ compensation carrier paid for him to \nsee Dr. Bracey, but he is an orthopedic specialist and not a neurosurgeon.  He confirmed that he \nonly saw Dr. Bracey and once, and that he did not provide him with any treatment of any kind.  \n\nEWING – H207068  \n  \n  \n9  \n  \nPer  the  Claimant,  Dr.  Bracey  referred  him  for  evaluation  by  a  neurosurgeon  for  his  neck \ncomplaints.  At that point, the Claimant went for evaluation by Dr. Calhoun. \n  On May 4, 2023, the Claimant had an independent medical evaluation by Dr. Calhoun.  He \nconformed that the workers’ compensation paid for this evaluation.  Pursuant to this evaluation, \nDr. Calhoun recommended that the Claimant undergo a new MRI for his neck and have more \nphysical therapy.  The Claimant testified that the carrier paid for the MRI, but they refused to pay \nfor the physical therapy.  He confirmed that Dr. Calhoun changed his physical restrictions to twenty \npounds at that time.  The Claimant admitted that he was able to continue working for the employer \nwith some accommodations for his work in the service tech area.  After the Claimant underwent \nthe new MRI on his neck, Dr. Calhoun recommended that the Claimant have neck surgery.  On \nMay 31, 2023, Dr. Calhoun expressed that opinion and explained how he though it was related to \nhis claim.  At that point, the Respondents denied the claim. \n  Although some of the medical demonstrates some opinions by various providers, one of \nthem is a Dr. Long, but the Claimant denied he ever talked to or met him, nor was he ever evaluated \nby him.  The Claimant further denied that he was ever evaluated by an osteopath, Sara Martinez.  \nHe also denied ever seeing or being evaluated by an orthopedic doctor, Dr. James Depuy. However, \nDr. Calhoun continued to try to appeal the process to get authorization for him to have neck \nsurgery.  The Claimant admitted that he was aware of the process. \n  Ultimately, the Claimant underwent neck surgery, but he had to pay for it out of his own \npocket.  The Claimant underwent neck surgery on November 10, 2023.  He returned to work on \nNovember 30, 2023.  The Claimant used his Blue Cross Blue Shield to pay for his neck surgery.  \nAccording to the Claimant, his out-of-pocket expenses were roughly over $1,200.00. The Claimant \ntestified that Dr. Calhoun was surprised to find out during his first follow-up visit with him that he \n\nEWING – H207068  \n  \n  \n10  \n  \nhad gone back to work so soon.  He explained that he had only twenty days to be off and he wanted \nto go back to work as quickly as possible because he had bills to pay.   \n  The medical records demonstrate that Dr. Calhoun removed a large central disc herniation  \nC6-7.  The Claimant confirmed that after his neck surgery, Dr. Calhoun gave him some steroid \nshots in his shoulder.  There was a six-month delay in the Claimant getting the surgery.  As a result, \nhe did not undergo any physical therapy treatment.  \n  In terms of improvement in his arms, the Claimant had some improvement.  The Claimant \ntestified that he was about 35% better after the surgery.  He confirmed that the last progress note \nof April 10, 2023 is the last time he saw Dr. Calhoun.  On April 25, 2023, Dr. Calhoun issued a \nletter with permanent restrictions.  The Claimant testified that he became aware of the report when \nReliable Poultry had requested in an email from Dr. Calhoun’s office for his progress note on how \nthe  Claimant  was  doing.    He  testified  that  after they  received  the  letter from  Dr. Calhoun,                 \nthey cut his pay from $22.00 down to $18.00 an hour.  The Claimant accepted a re -assignment to \nthe warehouse on a permanent basis.  Currently, the Claimant works forty hours a week and two \nand a half hours of overtime a week. The Claimant testified that in the service tech area, he was \npaid every two weeks and getting a hundred hours plus.  He also was able to get all the overtime \nhe could get, and every fourth weekend he was on call, for which he was paid $200.00. \n  The Claimant does not take any pain medication for his neck.  He confirmed that he is able \nto perform his on-the-job duties with the restrictions.  However, the Claimant gets help from \ncoworkers.  The Claimant testified that he is has not been able to fish in two years, and last year \nhe did not hunt all.  The previous year, the Claimant hunted several days, but he was just not there.  \nHe and his wife used to hunt together all the time.  According to the Claimant, he is able to run the \n\nEWING – H207068  \n  \n  \n11  \n  \nWeedeater.  The Claimant testified that he had been married for thirty-two years, and she walked \nout due to the stress and financial issues.   \n  Since his release from Dr. Calhoun’s care, the Claimant confirmed that he has not received \nany other additional medical treatment.  \n  On cross-examination, the Claimant confirmed that when he was struck in the fact with the \nvent, it did not cause any structural dames to the bones in his face.  The Claimant admitted that he \ndid not require any stitches or steri strips for the slight cut on his face.  He confirmed that he was \nnot knocked unconscious when the vent hit him.   \n  He admitted that during his deposition, he indicated that his neck symptoms started right \naway when he got hit.  The Claimant testified that he mentioned swelling and pain, but he did not \nrecall if he said his neck right off.  He testified that he was experiencing neck pain whether he \ncalled it the neck.  According to the Claimant, he was swelled up and hurting from his neck all the \nway down into his shoulder.   \n  Under further questioning, the Claimant testified:  \n Q What valid reason would you have for not telling doctors that you were having neck \npain and swelling your neck if it was, in fact going on? \n \n A  I did tell Dr. Caldwell. \n \n Q Okay.  I’m asking if it’s not in the medical records in a certain place, what excuse \ndo you have for that? \n  \n A I don’t have one.   \n \n The Claimant confirmed that he tagged two deer the year before.  He admitted that he \nhunted from a ten-foot stand, a box stand, with a modern gun.  The Claimant admitted this took \nplace before he got to see Dr. Calhoun and before he had surgery.  He confirmed that his wife \nmoved out around August or September of 2023.  According to the Claimant, he tried to take care \n\nEWING – H207068  \n  \n  \n12  \n  \nof his household chores and keep the house functional as it relates to laundry, dishes, cooking, and  \ncleaning.  He confirmed that he is able to drive.  The Claimant further confirmed having driven \nhimself to the hearing.    \n Under further questioning, the Claimant testified that he does bank fishing.  According to \nthe Claimant, he has a boat, but he has not used it.  He admitted that he catfish.  Per the Claimant,  \nReliable has been pretty good to him about keeping him working when they could.  While the  \nClaimant was off work due to his surgery, the Claimant received his vacation pay, along with the  \ntwo holidays, which included Thanksgiving pay. \n The Claimant testified the work at the poultry supply company and the poultry supply \nbusiness is not hard work depending on the job. He confirmed that the jobs he has worked and the  \nwork experience he has had at Reliable is the easiest line of work he has ever been in.  The Claimant  \nstated, “I love it.  Working in a poultry supply is the top of the line to me.”  According to the  \nClaimant, he has done a lot of manual labor but poultry, but poultry supply is the best.  He  \nconfirmed that no one at Reliable has pressured him or pushed him to work outside of any  \nrestrictions that brought he has brought to them.  The Claimant confirmed that they allowed him \nto come back to the warehouse.  He admitted that if he has to lift or push something, the store   \nmanager will come out and help him. The Claimant agreed that he will be allowed to continue  \nwork for the company as long as he wants to continue working.  He testified that the guy the \nguy that was working with him on the day of his injury, he has known him for thirty-seven years, \nand that he is still the manager of the service department.  The Claimant agreed that he has \nsome influence or power if he vouches or takes position on his behalf in the company. \n On redirect examination, the Claimant confirmed that although Dr. Caldwell’s records \ndo not specifically mention the word neck for six weeks in between the date of injury and when \n\nEWING – H207068  \n  \n  \n13  \n  \nthe word neck comes up, he was having pain from the top of head down to his shoulder area.  He \ntestified that he was having pain down the right side of his face.  According to the Claimant, it \nwould go down in his shoulder toward the end of his shoulder to the top of his right shoulder.  \nThe Claimant agreed that Dr. Caldwell mentions in his clinic note of January 9, 2023, that the he  \nhad started hurting when the accident happened in August.  He confirmed that he is satisfied  \nwith the care that he has received from Dr. Caldwell. The Claimant testified that only thing he wish \nhe done differently with his medical treatment is that he wishes he gotten the surgery sooner.   \n  On recross-examination, the Claimant testified that although the medical he may not have \nmentioned neck until September 27\nth\n he explained to Dr. Caldwell on multiple times that he was \nhurting from his head all the way down to into his shoulder.  He confirmed that the doctor that he \ntalking and communicating about is his primary care physician.  The Claimant testified that he \nhas been his PCP for four years.  He admitted that he does not have any problems communicating \nwith his doctor and that there are no communication barriers.  The Claimant explicitly confirmed \nthat he is not maintaining that he actually mentioned a neck problem before September 27\nth\n and \nhis doctor just failed to document it. \n  Under redirect examination, the Claimant admitted that he had symptoms on both sides of \nhis neck.  He went on to say that it started hurting bad into his right shoulder, and it started to work \nits way over the left and he started having problems with both arms and hands.  The Claimant also \nadmitted that he had a conversation with his doctor at one time about him overusing it when he \nwas back at work.  He denied having any issues with his neck or arms before the accident. The \nClaimant testified that had been his lower back prior to the accident at work. \n  Upon examination by the Commission, the Claimant denied that he ever missed work due \nto problems with his neck or arms.  He denied calling in sick due to problems with his neck prior  \n\nEWING – H207068  \n  \n  \n14  \n  \nto his work-related fall.  The Claimant further denied ever had any injuries to his neck prior to his \naccident at work.  He confirmed that he fell from an eight-foot ladder when the vent hit him and \nhe fell to the ground of the chicken house.  The Claimant hit his right side.            \n        Medical Records  \n  A review of the medical records demonstrates that on August 10, 2022, the Claimant wight \nmedical treatment for his compensable work-related fall from Magnolia Regional Medical Center.  \nThe Claimant reported that he fell from a ladder at work.  Per these emergency room notes, the \nClaimant sustained a laceration to his right upper arm, for which he received stitches.  He was also \nnoted to have a cut on the cheek of his face, but it did not require any sutures.  The Claimant also \nhad some swelling his cheek along with an abrasion.  Medical staff note that the Claimant did not \nhave any bleeding from the laceration on bicep.  Ultimately, the Claimant was discharged from the \nhospital with instructions to follow-up with his regular physician. \n  On August 25, 2022, the Claimant presented to his primary care physician, Dr. Charles \nCaldwell for removal of the stitches under his right arm. The Claimant reported that he was \nworking on a chicken house, removing a piece of a piece of equipment from the ceiling when it \nbecame hung and struck him on the right upper extremity and face.  The Claimant gave a history \nof having fallen off the ladder to the ground.  He stated that the sutures had become painful.  Dr. \nCaldwell removed the sutures and discussed treatment options with the Claimant, which included \ncalling a specialist.  Wound care was consulted and saw the Claimant in the clinic.  At that time, \nDr. Caldwell assessed the Claimant with “1. Laceration of right upper extremity, initial encounter. \n2. Traumatic wound dehiscence, initial encounter.”  He directed the Claimant to closely monitor at  \nhome and follow-up with him in two weeks as directed.  A non-adhesive bandage was placed along \nwith Coban on the Claimant’s bicep.  Dr. Caldwell placed the Claimant on limited use of his right \n\nEWING – H207068  \n  \n  \n15  \n  \nupper extremity to no weight bearing weight greater than two pounds until wound care could \nevaluate him in two weeks.  \n The  Claimant  underwent  evaluation  by  clinician,  Daniel  Patterson,  RN,  at  Howard \nMemorial Hospital under the supervision of Dr. Clay Ferguson, on September 1, 2022.  At that \ntime, he underwent evaluation for an initial wound encounter. His wound assessment was, “The \npatient’s potential to heal is excellent.” The Claimant’s wound was cleansed and a topical skin \nprotectant in the form of a barrier ointment was applied to protect the surrounding skin. \n On September 27, 2022, the Claimant underwent evaluation by Dr. Brian Caldwell.  The \nClaimant reported that maybe he a pulled muscle. He gave a history of having developed  a lot of \nof upper chest, back and left arm pain. The Claimant stated that he had using his left upper \nextremity to most of work since his injury.  He told Dr. Caldwell that he had recently noticed that \nhe had a lot of decreased strength bilaterally, along with weakness of both upper extremities at \ntimes. The Claimant specifically complained that he had now had neck pain.  Per these medical \nnotes, the Claimant continued to have a lump and pain in his right upper forearm.  His assessments \nwere “1. Injury of forearm muscle or tendon, right initial encounter.  (Primary). 2. Cervical \nradiculopathy. 3. Facial injury, subsequent encounter.”  The Claimant stated that the medications \ndid  not  work  well  for  him,  especially  narcotic  based  medications.   Therefore,  Dr.  Caldwell \nrecommended getting MRI of right forearm and cervical spine for further evaluation. \n The Claimant underwent an MRI of his right forearm on October 4, 2022, which was \nunremarkable.  Also on that same day, the Claimant had an MRI of his right elbow, which revealed  \n“unremarkable findings.” \n Dr. Justin Walden, orthopedic specialist, evaluated the Claimant on October 12, 2022.  At \nthat time, the Claimant complained of pain and weakness of his right upper extremity.  However, \n\nEWING – H207068  \n  \n  \n16  \n  \nhe also reported that since his injury he was having cramping sensation in his right forearm.  The \nClaimant also complained of muscle spasms over the volar aspect of in his right forearm.  He \nfurther complained of numbness and tingling diffusely through his right hand.  The Claimant stated \nhe  had  weakness  with  grip  in  right  hand.    He  reported  mild  improvement  with oral  anti-\ninflammatories.  Dr. Walden discussed treatment and options with the Claimant, which included \nphysical therapy,  occupational therapy, advanced imaging, splint application, cast application, \nbracing and surgical intervention as indicated. Per these progress notes, an EMG and nerve \nconduction study was ordered for the Claimant’s right upper extremity.  He stated that the Claimant \ncould return to work with a no lifting over two pounds to his right upper extremity and no repetitive \nuse of his right hand.     \n On November 10, 2022 the Claimant presented to Dr. Drake Hardy for consultation and \nEMG and nerve conduction study. His chief complaints included numbness, tingling, pain and \nweakness in his right arm and hand. The Claimant also complained of neck pain.  Per these notes, \nthe Claimant provided a history of no prior serious injury to his neck or to his right arm or hand \notherwise.    Dr.  Hardy’s  impression  of  the  electrodiagnostic  testing  was  “Abnormal  nerve \nconduction and electromyographic study consistent with mild compression of the right median \nnerve at the carpal tunnel with a median motor distal latency of 4.3 ms and a median peak sensory \nlatency of 4.0 ms.  There was no evidence of motor axonal dropout but there was evidence of mild \nsensory axonal dropout.  No evidence of denervation was seen in the right abductor pollicis brevis \nmuscle brevis muscle.”  Dr. Hardy opined that here was no evidence of an injury to the right ulnar \nnerve with stimulation proximal to the laceration side.  However, Dr. Hardy specifically opined \nthat he found no evidence of any other peripheral nerve entrapment and no evidence to suggest \nperipheral neuropathy, cervical radiculopathy or any other neuromuscular disease. \n\nEWING – H207068  \n  \n  \n17  \n  \n The Claimant presented to Dr. Walden on December 7, 2022 for complaints of right upper \nextremity pain and weakness.  His assessment was “Laceration right arm with weakness of his \nright hand.”  Dr. Hardy returned the Claimant to work with restrictions.   \n Progress notes demonstrate that the Claimant continued to follow up with Dr. Caldwell. On \nJanuary 9, 2023, the Claimant complained of left ear and neck pain that started hurting when he \nhad his work-related accident in August 2022. Dr. Caldwell’s assessment at that time include \namong other diagnoses, “cervical radiculopathy,” which he prescribed mediation and discussed \nother treatment options with follow-up directions.  \n Notes authored by  Dr. Walden on January 16, 2023, shows that the Claimant’s presented \nwith a chief complaint of  right upper extremity pain and weakness.  The Claimant also complained \nof  persistent grip strength and difficulty carrying objects in his right hand.  Although the Claimant \nhad been recommended for physical therapy, he did attend any therapy sessions because the \ninsurance carrier did not approve this treatment .  \n Ultimately, the Claimant underwent outpatient occupational therapy treatment beginning \non January 20, 2023 continuing through February 28, 2023.  \n On March 1, 2023 the Claimant returned to Dr. Walden with continued complaints of right \nupper extremity pain and weakens. He reported with any attempted lifting more than five pounds \nwhen in therapy, he begins to have uncontrollable shaking his right arm.  Dr. Walden expressed \nincreased weakness in  right arm despite therapy.  He recommended repeat EMG  and nerve \nconduction study due to increasing weakness.  Dr. Walden stated that he would obtain MRI of the \ncervical spine.  The Claimant was returned to work with lifting restrictions.   \n The Claimant continued with outpatient occupational therapy from March 2, 2023 through \nMarch 16, 2023.  \n\nEWING – H207068  \n  \n  \n18  \n  \n On March 23, 2023 the Claimant underwent an MRI cervical spine without contrast due to \na history of right pain, along with a history of laceration of the right arm.  An impression was \nrendered by Dr. Mark Robbins.  Specifically, Dr. Robbins found the following; \n1. Multilevel degenerative disc changes greatest at C5-6.  \n2. Bulging disc osteophyte complex C3-4 and C6-7 with mild cord effacement. \n3. Broad bulging disc osteophyte complex and central disc protrusion C5-6 with cord \neffacement and mild canal stenosis. \n \nThe Claimant returned for a follow-up visit with Dr. Walden on April 3, 2023, for continued  \ncomplaints of right upper extremity pain and weakness.  At that time, Dr. Walden opined that the \nClaimant had undergone imaging studying of his cervical spinal stenosis.  \n On that same day, the Nurse Case Manager, Jackie Cooper, wrote to Dr. Justin Walden to \nrequest that he evaluate the Claimant and share recommendation for treatment and address the \nfollowing: \n *In your profession opinion, are there any acute objective findings reported on his cervical  \n MRI? If so, please list. \n*In  your professional  opinion,  are  there  any  acute  objective  findings  on  the  recent \nEMG/NCV, if so, please list. \n* What is your recommendation for work restrictions for Mr. Ewing? \n* What is your recommendation for further treatment for Mr. Ewing?   \n* What is your projection for MMI for Mr. Ewing and RTW FD? \n \nThe Claimant presented to Dr. John Bracey on May 4, 2023, for evaluation of the right  \nupper extremity complaints.  Dr. Bracey opined, relevant part: “That the Claimant’s carpal tunnel \nsyndrome worst not acute in nature, was secondary to some mild pre-existing carpal tunnel and \nunrelated to the work injury.  He opined that he believe the Claimant’s complaints of right upper \nextremity weakness are secondary to his cervical radiculopathy. Specifically, Dr. Bracey stated the \nClaimant worsening weakness since his injury was likely secondary to a cervical cause such as \nradiculopathy. He opined that his was probably related to the trauma he sustained to his head and \n\nEWING – H207068  \n  \n  \n19  \n  \nneck.  Dr. Bracey believed that best course of treatment for the Claimant would be for him to have \nfollow-up with orthospine or neurosurgery for further evaluation of the cervical spine.   \n  Dr. Calhoun was posed several by the nurse case manager on May 4, 2023.  However, Dr. \nCalhoun recommended that the Claimant undergo repeat cervical MRI because the previous study \nwas suboptimal study.  It was his professional opinion that the Claimant sustained C5-6 cervical \nherniation with possible cervical myelopathy, cervical strain.  Per his letter, Dr. Calhoun was of \nthe opinion the central disc herniation at C5-6 could be acute.   \n  An MRI was performed of the Claimant’s cervical spine on May 31, 2023. Dr. Andrew A. \nFinkbeiner, opined: \n1. Broad-based disc bulge and central protrusion with partial compression of the ventral \ncord at the C5-6 level along with uncovertebral and facet hypertrophy contribute to \nabutement of bilateral exiting C6 nerves. \n2. Broad-based disc bulge, a central disc herniation with compression of the ventral cord \nat the C-7 level as well as a facet hypertrophy contribute to abutementt of the existing \nleft C7 nerve. \n3. Shallow broad-based disc bulge with partial compression of ventral cord at the C3-4 \nand C4-5 levels. \n \n \n  The Claimant presented to Dr. Calhoun on May 31, 2023, due to chief a complaint of neck \nand arm pain, chronic pain.  Dr. Calhoun opined that eh Claimant’s MRI showed central disc \nhernations at C5-6 and C6-7 with spinal cord edema at both levels.  He specifically opined that the \nedema is indicative of an acute injury, and that the hand weakness is due to central cord syndrome \nfrom the spinal cord edema.  Therefore, Dr. Calhoun requested authorization from the workers’ \ncompensation carrier to all the Claimant to undergo C5-6 and C6-7 anterior cervical discectomy \nand fusion for stenosis.  He stated that the Claimant underwent an MRI, and it confirmed the above.  \nDr. Calhoun also started that the Claimant had failed to improve with conservative measures.   \n\nEWING – H207068  \n  \n  \n20  \n  \n  On July 2, 2023, Dr. Justin Long opined that the Claimant’s complaints demonstrated on \nthe  MRI  of  March  23, 2023, and  May  31,  2023  of  the  cervical  spine  are  multilevel  disc \ndegenerative changes.  He opined that the findings at C4-C6 are chronic in nature and not the result \nof his injury on August 10, 2022.  \n  An Osteopath, Sarah Martinez, provided a professional opinion of the whether the cervical \nfindings on the MRI is related to the Claimant’s work injury of August 10, 2022, or a subsequent \nfall at work. On July 31, 2023, Martinez opined that the diagnostic imaging reported no acute \npathology but did demonstrate pre-existing multifactorial degenerative changes of the cervical \nspine, none of which are consistent with the fall of August 10, 2022, or May 12, 2023, fall.  She \nwent on to state that degenerative changes of the spine are a part of the normal aging process.   \n  The Radiologist sent an addendum on August 24, 2023, to the MRI, which read, “No \ndefinite focus of altered signal or edema is seen within the cervical cord at the C5-C6 or C6-7 \nlevel.      \nOn August 28, 2023, Dr. Calhoun sent a letter to appeal denial of his request for the \nClaimant to undergo a C5-6 and C6-7 anterior cervical discectomy and fusion.  He opined that the \nClaimant had worsening symptoms, and he felt the Claimant suffered a central cord injury during \nhis fall.  This was based on numbness and clumsiness in both hands.  Dr. Calhoun stated that the \nClaimant’s symptom had been misdiagnosed as carpal tunnel syndrome.  He also noted that the \nClaimant’s repeat MRI showed significant compression of the spinal cord at C5-6 and C6-7.  Per \nDr. Calhoun, even though the findings of the disc herniation at  C5-6 and C6-7 could be viewed as \npre-existing, the fall caused the injury to his spinal cord with the development of the of the central \ncord syndrome.      \n\nEWING – H207068  \n  \n  \n21  \n  \nA Utilization Review Recommendation Report was issued on September 11, 2023 denying \nthe Claimant’s the for cervical surgical intervention.      \nOn November 10, 2023, the Claimant underwent neck surgery under the care of Dr. \nCalhoun, which resulted in a Procedure Note, which reads: \nPreoperative Diagnoses: \n1. C5-6 cervical stenosis with cervical myelopathy. \n2. C6-7 cervical stenosis with cervical myelopathy. \n \nPostoperative Diagnoses: \n1. C5-6 cervical stenosis with cervical myelopathy. \n2. C6-7 cervical stenosis with cervical myelopathy. \n3. C6-7 central herniation nucleus pulposus. \n \nOperative Procedures: \n1. C5-6 anterior discectomy and bilateral foraminotomy. \n2. C6-7 anterior discectomy and bilateral foraminotomy. \n3. C5-6 arthrodesis with PEEK cage and local autograft. \n4. C6-7 arthrodesis with PEEK cage and local autograft. \n5. C5,C6,C7 anterior plating. \n \n                                       ADJUDICATION  \nA. Compensability \n  The Claimant has asserted that he in addition to his right bicep and cheek injuries, he also \nsustained a neck injury during his work-related injury of August 10, 2022. In the alternative, the \nClaimant sustained a compensable consequence injury to his neck as a result of his August 10, \n2022 injury.   \nHowever, the Respondents contends that the Claimant did not suffer a cervical spine injury \nin August10, 2022.  It is Respondents’ position the Claimant’s need for medical treatment, if any, \nis associated with that body part is related to preexisting and underlying problems and not an acute \ninjury.       \n\nEWING – H207068  \n  \n  \n22  \n  \nThe burden of proving a specific incident compensable injury is the employee’s and must \nbe proved by a preponderance of the evidence.  Ark. Code Ann. § 11-9-102(4)(E)(i).  If the \nClaimant  fails  to  establish  by  a  preponderance  of the  evidence  any  of  the  requirements  for \nestablishing the compensability of a claim, compensation must be denied.  Mikel v. Engineered \nSpecialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).   \n   \"Compensable injury\" means an accidental injury causing physical harm to the body, \narising out of and in the course of employment and which requires medical services or results in \ndisability or death.  Ark. Code Ann. § 11-9-102(4)(A)(i).  A compensable injury must be established \nby medical evidence supported by objective findings.  Ark. Code Ann. § 11-9-102(4)(D) (Supp. \n2019).  “Objective findings” are those findings that cannot come under the voluntary control of the \npatient.  Ark. Code Ann. § 11-9-102(16)(A)(i).  Complaints of pain are not considered objective \nmedical findings.  Ark. Code Ann. § 11-9-102(16)(A)(ii)(a).    \n   After reviewing the evidence in this case impartially, without giving the benefit of the doubt \nto either party, I find that the Claimant proved by a preponderance of the credible evidence that he \nsustained a work-related injury to his neck on August 10, 2022.  More specifically, I cannot find \nthat  there  is the existence  of a  causal  connection  between the Claimant’s August  10, 2022, \nemployment related incident/activities, and the medically documented objective findings for his \nneck injury as demonstrated the MRI of his neck following his compensable fall at work.  \n   In the case at bar, the Claimant worked for Reliable Poultry since 2017.  The Claimant \nworked initially as warehouse technician. Subsequently, the Claimant transitioned over into the \nposition of a service technician. His most recent employment duties entailed the duties of servicing \nchicken houses.  The Claimant has an extensive prior history of back problems.  He has had four \nprior back surgeries that resulted in him been on Social Security Disability benefits prior to going \n\nEWING – H207068  \n  \n  \n23  \n  \nto work at Reliable.  His testimony demonstrates that successfully off Social Security Disability \nand went to work for Reliable without any medical problems or limitations. The Claimant testified \nthat at the time of his injury on August 10, 2022, he did not have any physical limitations or \nrestrictions.   \n   On the day of his accidental fall at work on August 10, 2023, the Claimant working with a \ncoworker at a chicken at McNeil, Arkansas.  The Claimant was on an eight-foot ladder working on \nthe ceiling of a chicken trying to remove a vent from the ceiling when the vent hit him on the side \nof his face causing him to fall to the ground.  The Claimant sustained injuries to his bicep and had \na cut on the cheek.  He was treated at a local hospital emergency room and discharged home. \n   Although the Claimant suffered from significant problems with his low back and had \nundergone four surgeries to his low back, the Claimant had no prior problems or injuries to his \nneck.  The Claimant’s testimony demonstrates that he suffered problems with his neck following \nhis compensable work fall.  He readily admitted that there is no documented complaints of a neck \nproblem until almost six weeks after his fall.  However, the Claimant credibly testified that he \ncomplained to his Dr. Caldwell that he had problems with his head down to neck.  I found the \nClaimant to be credible and forthcoming with his account of having reported these problems to Dr. \nCaldwell.  There is no evidence whatsoever demonstrating that the Claimant suffering prior \ncomplaints of any difficulties to his neck. His testimony demonstrates that he was able to perform \nhis job duties with complaints of any neck problems prior to his work-related fall of August 10, \n2022.  I am also persuaded that the Claimant’s fall is consistent with an injury to his neck.  Here, \nthe Claimant was hit on the side of the face with a vent weighing more than 50 pounds.  The \nClaimant fell from an 8-foot ladder to the ground of a chicken house.             \n    \n\nEWING – H207068  \n  \n  \n24  \n  \nI find that the evidence preponderates that the Claimant’s neck injury resulted from the August 10, \n2022, fall.   \nHere, the medical evidence presented by the Claimant from his cervical MRI of May 31,  \n2023 and  the  subsequent  MRI  August  24,  2023 contains pre-existing  degenerative changes.  \nHowever, it is well-established in workers’ compensation law that a pre-existing condition may be \naggravated by a work-related and be found compensable as a new injury.  I find that to be the case \nhere.  I reached this conclusion based on the following probative evidence found in the expert \nopinion of the Claimant’s treating physician, Dr. Calhoun. I have attached significant weight to his \nexpert opinion.  Specifically, on  August 28, 2023, Dr. Calhoun sent a letter to appeal denial of his \nrequest for the Claimant to undergo a C5-6 and C6-7 anterior cervical discectomy and fusion.  He \nopined that the Claimant had worsening symptoms, and he felt the Claimant suffered a central cord \ninjury during his fall.  This was based on numbness and clumsiness in both hands.  Dr. Calhoun \nstated that the Claimant’s symptom had been misdiagnosed as carpal tunnel syndrome.  He also \nnoted that the Claimant’s repeat MRI showed significant compression of the spinal cord at C5-6 \nand C6-7.  Per Dr. Calhoun, even though the findings of the disc herniation at  C5-6 and C6-7 \ncould be viewed as pre-existing, the fall caused the injury to his spinal cord with the development \nof the of the central cord syndrome.      \nConsidering the expert opinion of the Dr. Calhoun, the Claimant’s treating surgeon, the \nmechanism of the Claimant’s fall, no prior problems or complaints of the neck or any type of prior \ninjuries or treatment for his neck, and because his pre-existing degenerative disc disease was \nasymptomatic, and there being no subsequent injuries to his work related incident, I find that on \nAugust 10, 2022,  the  Claimant sustained a spinal cord injury to his neck with the development of \n\nEWING – H207068  \n  \n  \n25  \n  \ncentral cord syndrome, which resulted in his need for surgical intervention to his neck as performed \nby Dr. Calhoun on November 10, 2023. \nI realize that Dr. Long and Martinez opined to the contrary, I have assigned minimal weight \nto these opinions considering all of the foregoing evidence to the contrary and because they did \nphysically evaluate or examine the Claimant. Hence, I find that the Claimant has met his burden \nof proof of all the necessary requirements for an injury to his neck on August 10, 2022.     \nB. Medical Treatment \nAn employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn. § 11-9-508(a).  The Claimant bears the burden of proving by a preponderance of the evidence \nthat medical treatment is reasonably necessary.  Stone v. Dollar General Stores, 91 Ark. App. 260, \n209 S.W.3d 445 (2005). \nThe Claimant proved that the treatment of record that he received for his August 10, 2022  \nneck injury was reasonable and necessary for his neck injury, including the surgery by Dr. \nCalhoun. The Claimant failed to improve after significant conservative for his neck symptoms \nand related problems.  All of this treatment and the diagnostic tests were reasonable and necessary \nto diagnose and treat the Claimant compensable neck injury.   \nC. Temporary Total Disability  \nHere, the Claimant contends that he is entitled to temporary total disability benefits for his  \nneck injury from November 10, until November 29, 2023.     \nAn injured employee for an unscheduled injury is entitled to receive temporary total \ndisability compensation  during  the  time  that  he  is  within  his healing  period  and  totally \nincapacitated from earning wages.  Arkansas State Highway and Transportation Department v. \n\nEWING – H207068  \n  \n  \n26  \n  \nBreshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  The healing period is that period for healing of \nthe injury which continues until the employee is as far restored as the permanent character of the \ninjury will permit.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).   \nThe Claimant proved his entitlement to temporary total disability for his compensable \ncervical spine injury of August 10, 2022, from November 10, 2023 until November 29, 2023.  The \nClaimant underwent neck surgery on November 10, 2023 and returned to work on November 29, \n2023 before his healing period needed because he had bills pay.  Hence, the evidence shows that \nthe Claimant remained in his healing and totally incapacitated from earning his regular wages  \nfrom November 10, 2023 through November 29, 2023 so as to prove his entitled to temporary total \ndisability for that time period. Therefore, I find that the Claimant proved his entitlement to \ntemporary total disability from November 10, 2023 through November 29, 2023. \nD.   Attorney’s Fee \nThe Respondents have stipulated that they controverted this claim for a neck injury in its  \nTherefore, the Claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity \nbenefits awarded to the Claimant, pursuant to Ark. Code Ann. § 11-9-715. \n \n                          AWARD \n \nThe Respondents are directed to pay benefits in accordance with the findings of fact set \nforth herein this Opinion.   \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \n\nEWING – H207068  \n  \n  \n27  \n  \n  Per Ark. Code Ann. §11-9-715, the Claimant’s attorney is entitled to a 25% attorney’s fee \non the indemnity benefits awarded herein.  This fee is to be paid one-half by the carrier and one-\nhalf by the Claimant.  \nAll issues not addressed herein are expressly reserved under the Act. \nIT IS SO ORDERED. \n \n                           \n                            _______________________________  \n              CHANDRA L. BLACK       \n           ADMINISTRATIVE LAW JUDGE","textLength":52377,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207068 GARY EWING, EMPLOYEE CLAIMANT RELIABLE PULTRY SUPPLY, INC., EMPLOYER RESPONDENT ACADIA INS. CO./UNION STANDARD INS. CO., CARRIER/THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 9, 2024 A hearing was held before Administrative Law Judge ...","outcome":"granted","outcomeKeywords":["granted:7"],"injuryKeywords":["cervical","neck","back","shoulder","carpal tunnel","repetitive","strain"],"fetchedAt":"2026-05-19T22:48:36.121Z"},{"id":"alj-H401851-2024-09-09","awccNumber":"H401851","decisionDate":"2024-09-09","decisionYear":2024,"opinionType":"alj","claimantName":"Gloria Tackett","employerName":"Pinnacle Place Memory Care","title":"TACKETT VS. PINNACLE PLACE MEMORY CARE AWCC# H401851 September 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Tackett_Gloria_H401851_20240909.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Tackett_Gloria_H401851_20240909.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H401851 \n \nGLORIA YVONNE TACKETT, EMPLOYEE CLAIMANT \n \nPINNACLE PLACE MEMORY CARE, \nEMPLOYER RESPONDENT \n \nACCIDENT FUND INSURANCE CO., \nCARRIER/THIRD-PARTY ADMINISTRATOR RESPONDENT \n \nOPINION FILED SEPTEMBER 9, 2024 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on  July 24,  2024,  in  Little  Rock, \nArkansas. \n \nClaimant was represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented by Mr. James Arnold II, Attorney at Law, Fort Smith, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on July 24, 2024.  A prehearing telephone conference \ntook place on June 4, 2024. A prehearing order was entered on that date and subsequently entered \ninto evidence, with amendments by the parties, as Commission Exhibit 1. The parties’ stipulations \nare set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. The employer/employee/carrier  relationship  existed  among  the  parties  on \nDecember  25,  2023,  when  Claimant  allegedly  sustained  a  compensable \ninjury to her right shoulder. \n \n3. Respondents have controverted this claim in its entirety. \n \n\nTACKETT H401851 \n \n \n2 \n \n \n4. Claimant’s average weekly wage of $900, entitles her to a temporary total \ndisability rate of $600, and a permanent partial disability rate of $450.\n1\n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1. Whether  Claimant sustained  compensable  injuries to  her right shoulder by  specific \nincident. \n  \n2. Whether Claimant is entitled to any reasonable and necessary medical treatment. \n \n3. Whether Claimant is entitled to temporary total disability benefits from December 26, \n2023, to a date yet to be determined. \n \n4.  Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s Contentions: The Claimant contends that she sustained compensable injuries to \nher right shoulder due  to  involvement  with  a  physically  aggressive  patient.  Claimant  contends \nentitlement to payment of temporary disability benefits from approximately December 25, 2023, \nand continuing through a date yet to be determined. It appears that Respondents may have paid \nsome benefits through approximately December 12, 2024, at which time Claimant was notified of \nthe Respondents controversion of the claim. Medical expenses have been incurred by Claimant. \nThe claim has been controverted for purposes of an attorney’s fee.  \nRespondents’ Contentions: Respondents contend, without waiving any other defenses, the \nMRI taken on January 19, 2024, reports exclusively chronic findings. \n \n  \n \n1\n The parties stipulated and the Commission approved Claimant’s average weekly wage, \ntemporary total disability benefits, and permanent partial disability benefits on the hearing date. \n\nTACKETT H401851 \n \n \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary record, I hereby make the following Findings of Fact and Conclusions of Law in accordance \nwith Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant has not proven by the preponderance of the evidence that she sustained \ncompensable injuries to her right shoulder by specific incident nor through the course \nof employment. \n \n4. Based on my finding that 1.) Claimant did not sustain an injury by specific incident, \nand  2.) nor  did her  injury arise  out  of  and  through  the  course  of  employment, the \nremaining  issues of reasonable  and  necessary  medical  treatment,  temporary  total \ndisability benefits, and a controverted attorney’s fee are moot and will not be addressed \nin this opinion. \n \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, Medical Records, that consists of 111 pages, \nRespondents’ Exhibit 1, correspondence and questionnaire, that consist of 4 pages, Respondents’ \nExhibit  2, medical  records,  consisting  of 154 pages, and Commission  Exhibit  1,  Pre-Hearing \nOrder, that consists of 5 pages. Forms AR-C and AR-1 blue-backed and made a part of this record. \nThe Claimant was the only witness testifying in the full hearing.  \nClaimant was employed as a nurse for the Respondent/Employer. On December 25, 2023, \nClaimant was attempting to break up a fight between two patients. Claimant, in her effort to break \nup the fight was punched, kicked, and choked by one of the patients. This altercation resulted in \nalleged   rotator   cuff   tears   to   her   right   shoulder. The   Claimant   reported this injury   to \nRespondent/Employer the same day. The Claimant has not worked for Respondent/Employer since \n\nTACKETT H401851 \n \n \n4 \n \n \nthat December 25, 2023, incident. However, on April 5, 2024, she accepted a job at Blossoms of \nWest Dixon Nursing Home.  \nDespite not working for the Respondent/Employer from December 25, 2023, through April \n5, 2024, Claimant did receive some medical treatment through the ER at Baptist Medical Center \n(“Baptist”) and  later  at  the  Concentra  Medical  Center (‘Concentra’). The  Claimant  went  to  the \nemergency room at Baptist on December 26, 2023. There the doctor noted that the Claimant had \ntenderness in her right shoulder. Claimant’s Exhibit 1, page 6. Claimant received an x-ray to her \nright shoulder that found no acute fracture or dislocation. However, osteoarthritis was present in \nthe glenohumeral and AC joint. Claimant’s Exhibit 1, page 8. Claimant’s final diagnosis from her \nER visit was a strain to her lower back and to her shoulder. Claimant’s Exhibit 1, page 17. Claimant \nreceived a Toradol injection and was released.  \nRespondent/Employer  next  sent  Claimant  to  Concentra  on  January  3,  2024.  There, Dr. \nClint Bearden, Physician Assistant, assessed the Claimant as having a right rotator cuff tear and \nsuspected it was an infraspinatus tear. Claimant’s Exhibit 1, page 21. The Claimant was allowed \nto return to work on January 3, 2024, with restrictions, i.e. no reaching above shoulders or activities \nthat would involve physical altercations. Claimant’s Exhibit 1, page 26. Claimant also underwent \nphysical therapy. Claimant’s Exhibit  1,  pages  27 – 28.   Dr.  Bearden  ordered  an  MRI  at  Chenal \nMRI for Claimant on January 19, 2024. Claimant’s Exhibit 1, pages 40 – 41.  This MRI report \nshows a  complete  full  thickness  tear  of  the  supraspinatus  tendon  with  approximately  5.5  cm  of \nretraction just proximal to the glenoid. Claimant’s Exhibit 1, pages 40 – 41. The report also shows \na complete full-thickness tear of the infraspinatus tendon with approximately 5 cm of retraction. \nClaimant’s Exhibit 1, pages 40 – 41.  Both tears are age indeterminate and suggestive of chronicity \nbased  on the  associated  moderate  supraspinatus  and  the  severe  infraspinatus  muscular  atrophy. \n\nTACKETT H401851 \n \n \n5 \n \n \nClaimant’s Exhibit 1, pages 40 – 41.  The report also revealed a mild subscapularis tendinosis with \nlow-grade  partial  thickness  articular  surface  tear  of  the  subscapularis  tendon  and  a  tear  with \nretraction of the long head of the bicep’s tendon. Claimant’s Exhibit 1, pages 40 – 41. There were \nalso degenerative tears of the superior, anterior, and inferior labrum muscular atrophy. Claimant’s \nExhibit 1, pages 40 – 41.  \nClaimant has had previous injuries to her right shoulder. While working for the Arkansas \nDepartment  of  Correction, Wrightsville  Unit, Claimant  injured  her  right  shoulder  when  she \nattempted to catch a medication box falling from a cart. Respondents’ Exhibit 2, page 35. Claimant \nunderwent an MRI at Chenal MRI on March 10, 2016. The report shows that Claimant had a near \ncomplete tear of her supraspinatus with a few intact anterior leading fibers. Respondents’ Exhibit \n2, page 46. The tear continues posteriorly into the conjoined tendon and infraspinatus as a moderate \ngrade  articular  surface  tear  with  approximately  2.5  cm  medial  retraction  of  the  articular  fibers. \nRespondents’ Exhibit 2, page 46. She also had minimal atrophy of the supraspinatus muscle fiber. \nRespondents’ Exhibit 2, page 46. The report further reveals the intra-articular portion of the long \nhead of the bicep’s tendon also appear significantly degenerated and torn with longitudinal split \ntear  extending  into  the vessel groove. Respondents’ Exhibit 2, page 46. The report also shows \nmultiple degenerative changes. Respondents’ Exhibit 2, page 46.  \nThe Claimant also received an MRI from Arkansas Specialty MRI Center on March 29, \n2016, due to a fall that she claims reinjured her right shoulder. Respondents’ Exhibit 2, page 53. \nThe fall took place after her right shoulder injury involving the medication box. This MRI report \nfound   a   large   full-thickness   tear   of   the   supraspinatus   and   infraspinatus   tendons   with \nmusculotendinous  retraction  and  large  gaps. Respondents’ Exhibit 2, page 53. The  report  also \nnoted  there  may  be  some  mild  atrophy.  The  report further  revealed a  concern  for  a  focal \n\nTACKETT H401851 \n \n \n6 \n \n \nlongitudinal  split  tear  in  the  bicipital  tendon  at  the  level  of  the  proximal  humeral  diaphysis. \nRespondents’ Exhibit 2, page 53. The report finally noted tendinopathy of the subscapularis tendon \nand biceps anchor. Respondents’ Exhibit 2, page 53.  \nDr. Theodore Hronas, Board Certified Radiologist, reviewed three MRIs and radiographs \npreviously  mentioned  in  this  opinion.  Respondents’  Exhibit  2,  pages  150-151.    Dr.  Hronas \nsummarized this report in Respondents’ Exhibit 2, pages 151 -152, and found that the:  \n“...initial MRI exams of the right shoulder demonstrate evidence of a tear of the \ndistal  supraspinatus  tendon  that  progressed  significantly  in  a  short  period  of  time,  with \nfindings of complete tears of both the supraspinatus and infraspinatus tendons on March \n29,  2016.  The  most  recent  MRI  exam  on  the  right  shoulder,  01/19/2024,  demonstrates \nsevere   osteoarthritic   change   of   the   right   glenohumeral   joint   with   extensive   bone \nremodeling  and  chronic  tears  and  severe  muscle  atrophy  of  both  the  supraspinatus  and \ninfraspinatus  tendons  as  described.  This  degree  of  osteoarthritic  change  and  the  chronic \ntendons tears with severe muscle atrophy takes years to develop. There is no reactive joint \neffusion,  edema,  or  any  objective  findings  of  an  acute  or  recent  injury  of  the  right \nshoulder.”  \n \nDr.  Hronas also reviewed radiographs of Claimant’s right shoulder that were taken on \nJanuary 3, 2024, approximately one week after the date of the injury. Respondents Exhibit 2, page \n151. The radiographs revealed a severe osteoarthritic change of the right shoulder with abnormal \nsuperior  subluxation  of  the  humeral  head  resulting  in  loss  of  the  normal  subacromial  space. \nRespondents  Exhibit  2,  page  151. Dr.  Hronas opined  that  the  loss  of  the  subacromial  space  is \npathognomonic for a chronic rotator cuff tear. Respondents Exhibit 2, page 151. Dr. Hronas also \nnoted a right humeral head bone remodeling, sclerosis, and subchondral cystic formation present \nwithin the glenoid. Respondents Exhibit 2, page 151. Dr. Hronas further noted the shortening of \nthe distal right clavical related to chronic osteolysis. Respondents Exhibit 2, page 151. There was \nno evidence of an acute fracture or dislocation. Respondents Exhibit 2, page 151. Dr. Hronas also \nstated that in his  review  findings  were  made  within  a  reasonable  degree  of  medical  certainty. \n\nTACKETT H401851 \n \n \n7 \n \n \nRespondents’ Exhibit 2, page 151-152. Moreover, Claimant testified that she has never had surgery \non her right shoulder to repair the tendon tears. Transcript, page 17, lines 9-23.  \nAdjudication \nA. Whether Claimant sustained compensable injuries to her right shoulder by \nspecific incident. \nTo determine compensability, I find Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. \n2012), applies to the analysis of Claimant’s alleged injuries, and it defines “compensable injury” \nas: \n(i) An accidental injury causing internal or external physical harm to the body . . . \narising out of and in the course of employment and which requires medical services \nor results in disability or death.  An injury is “accidental” only if it is caused by a \nspecific incident and is identifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective findings.  \nArk.  Code  Ann.  §  11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings that \ncannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  The element “arising \nout of . . . [the] employment” relates to the causal connection between the claimant’s injury and \nhis or her employment.  City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987).  \nAn  injury  arises  out  of  a  claimant’s  employment  “when  a  causal  connection  between  work \nconditions and the injury is apparent to the rational mind.”  Id. \nIf the claimant fails to establish by a preponderance of the evidence any of the requirements \nfor  establishing  compensability,  compensation  must  be  denied.   Mikel  v.  Engineered  Specialty \nPlastics,  56  Ark.  App.  126,  938  S.W.2d  876  (1997). Again,  this  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n\nTACKETT H401851 \n \n \n8 \n \n \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission.  White  v.  Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness  but  may  accept  and  translate  into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \nDiscussion.  I find the Claimant has not proven by the preponderance of the evidence that \nshe sustained compensable injuries to right shoulder 1.) by specific incident, nor 2.) arising out of \nand through the course of employment. Claimant has injured her right shoulder twice before. First \nwhen she worked at the Wrightsville prison and a medicine box fell and she attempted to catch it \nthereby injuring her right shoulder. Transcript, page 23, lines 22 – 25, thru page 24, lines 1 – 4.  \nAs previously mentioned, Claimant underwent an MRI at Chenal MRI on March 10, 2016. The \nMRI report shows that Claimant had a near complete tear of her supraspinatus with a few intact \nanterior leading fibers. Respondents’ Exhibit 2, page 46. The tear continued posteriorly into the \nconjoined tendon and infraspinatus as a moderate grade articular surface tear with approximately \n2.5 cm medial retraction of the articular fibers. Respondents’ Exhibit 2, page 46. She also had \nminimal atrophy of the supraspinatus muscle fiber. Respondents’ Exhibit 2, page 46. The report \nfurther  reveals the intra-articular portion of the long head of the bicep’s tendon also appear \nsignificantly  degenerated  and  torn  with  longitudinal  split  tear  extending  into  the  vessel  groove. \nRespondents’  Exhibit  2,  page  46.  The  report  also  shows  multiple  degenerative  changes. \nRespondents’ Exhibit 2, page 46.  \n\nTACKETT H401851 \n \n \n9 \n \n \n The Claimant then fell and reinjured her right shoulder a few weeks after her initial injury \nto that same shoulder attempting to catch a medication box. Claimant received another MRI for \nthis injury from Arkansas Specialty MRI Center on March 29, 2016. Respondents’ Exhibit 2, page \n53. Again,  as  mentioned  earlier,  this  MRI  report  found  a  large  full-thickness  tear  of  the \nsupraspinatus  and  infraspinatus  tendons  with  musculotendinous  retraction  and  large  gaps. \nRespondents’ Exhibit 2, page 53. The report also noted  there  may  be  some  mild  atrophy and a \nconcern for a focal longitudinal split tear in the bicipital tendon at the level of the proximal humeral \ndiaphysis. Respondents’  Exhibit  2,  page  53.  The  report also  revealed tendinopathy  of  the \nsubscapularis tendon and biceps anchor. Respondents’ Exhibit 2, page 53.  \nThe Claimant never underwent corrective surgery for these injuries to her right shoulder. \nTranscript, page 17, lines 9-23. When Claimant allegedly injured herself on December 25, 2023, \nwhile attempting to break up two patients fighting, she underwent an MRI on January 19, 2024. \nThis  MRI  report  shows  a  complete  full  thickness  tear  of  the  supraspinatus  tendon  with \napproximately 5.5 cm of retraction just proximal to the glenoid. Claimant’s Exhibit 1, pages 40 – \n41.  The  report  also  shows  a  complete  full-thickness  tear  of  the  infraspinatus  tendon  with \napproximately 5 cm of retraction. Claimant’s Exhibit 1, pages 40 – 41.    Both  tears  are  age \nindeterminate and suggestive of chronicity based on the associated moderate supraspinatus and the \nsevere  infraspinatus  muscular atrophy. Claimant’s Exhibit 1, pages 40 – 41.    The  report  also \nrevealed a mild subscapularis tendinosis with low-grade partial thickness articular surface tear of \nthe  subscapularis  tendon  and  a  tear  with  retraction  of the  long  head  of the  bicep’s  tendon. \nClaimant’s Exhibit 1, pages 40 – 41. There were also degenerative tears of the superior, anterior, \nand inferior labrum. muscular atrophy. Claimant’s Exhibit 1, pages 40 – 41.  \n\nTACKETT H401851 \n \n \n10 \n \n \nBased on these reports, the Claimant has sustained numerous tears to her right shoulder, all \nwithout surgery. The alleged December 25, 2023, work-related injury appears strikingly like the \ninjuries that occurred in 2016. This necessitates the need for a medical comparison. Dr. Theodore \nHronas,  Board  Certified  Radiologist, gave  that  comparison  and reviewed  three  MRIs  and \nradiographs previously mentioned in this opinion. Respondents’ Exhibit 2, pages 150-151.    Dr. \nHronas summarized his report in Respondents’ Exhibit 2, pages 151 -152, and found that:  \n“This degree of osteoarthritic change and the chronic tendons tears with severe \nmuscle atrophy takes years to develop. There is no reactive joint effusion, edema, or any \nobjective findings of an acute or recent injury of the right shoulder.”  \n \nDr. Hronas further stated that his findings were made within a reasonable degree of medical \ncertainty. Respondents’ Exhibit 2, page 151-152. I credit Dr. Hronas report. His report made clear \nthat Claimant’s alleged work-related injury could not have occurred on December 25, 2023, but \nstated that her injuries would have taken “years to develop.” Moreover, his report concludes the \nmatter by stating that there were no ‘reactive joint effusion, edema, or any objective findings of an \nacute or recent injury of the right shoulder.” Thus, Claimant’s alleged December 25, 2023, work-\nrelated altercation could not have been the specific incident that caused her right shoulder injuries. \nMoreover, considering Dr. Hronas report that Claimant’s injuries would have taken years to \ndevelop it is also clear that Claimant’s injuries did not arise out of the course of employment with \nRespondent/Employer. We were not dealing with recent or new injuries but old injuries. Injuries, \naccording to Claimant’s own testimony, she has never had surgery to repair. Transcript, page 17, \nlines 9-23. It is Claimant’s responsibility to prove that she was injured by  specific incident and \nduring the course and scope of her employment. She has failed to do so. Thus again, Claimant has \nnot  proven  by  the  preponderance  of  the  evidence that she  sustained  a  compensable  injury by \n\nTACKETT H401851 \n \n \n11 \n \n \nspecific incident or arising out of and through the scope of employment. Therefore, her claim must \nfail. \nMISCELLANEOUS ISSUES \n Based  on  my  previous  findings that  1.) Claimant  did  not  sustain  an  injury  by  specific \nincident,  and 2.) nor  did  her  injury  arise  out  of  and  through  the  course  of  employment,  the  \nremaining issues regarding reasonable and necessary medical treatment, temporary total disability \nbenefits, and a controverted attorney’s fee are moot and will not be addressed in this opinion.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":21454,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H401851 GLORIA YVONNE TACKETT, EMPLOYEE CLAIMANT PINNACLE PLACE MEMORY CARE, EMPLOYER RESPONDENT ACCIDENT FUND INSURANCE CO., CARRIER/THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 9, 2024 Hearing before Administrative Law Judge, Steven Porch, o...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","fracture","strain","back","rotator cuff"],"fetchedAt":"2026-05-19T22:48:38.197Z"},{"id":"full_commission-H202874-2024-09-05","awccNumber":"H202874","decisionDate":"2024-09-05","decisionYear":2024,"opinionType":"full_commission","claimantName":"Todd Griffin","employerName":"Milbank Manufacturing Company","title":"GRIFFIN VS. MILBANK MANUFACTURING COMPANY AWCC# H202874 September 5, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Griffin_Todd_H202874_20240905.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Griffin_Todd_H202874_20240905.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H202874 \n \nTODD O. GRIFFIN, EMPLOYEE    CLAIMANT \n \nMILBANK MANUFACTURING COMPANY,  \nEMPLOYER                                                                           RESPONDENT \n \nSTANDARD FIRE INSURANCE COMPANY/ \nTRAVELERS INSURANCE COMPANY, \nINSURANCE CARRIER/TPA                                                 RESPONDENT \n \nOPINION FILED SEPTEMBER 5, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE GUY ALTON WADE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed May 15, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n The stipulations contained in the prehearing order filed November \n21, 2023, hereby are accepted as facts. \n1. The claimant has failed to meet his burden of proof in \ndemonstrating that he is PTD. \n  \n\nGriffin-H202874  2 \n \n \n2. The claimant has met his burden of proof in \ndemonstrating he is entitled to an additional five \npercent (5%) in PPD based on wage loss disability.  \n \n3. The claimant’s attorney is entitled to a controverted fee \nbased on the aforementioned 5% wage loss disability \nfinding. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed.  The findings of fact and conclusions of law \nmade by the Administrative Law Judge are correct and they are, therefore, \nadopted by the Full Commission.  \n Therefore, we affirm and adopt the May 15, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents. \n  \n\nGriffin-H202874  3 \n \n \nDISSENTING OPINION \n   The Claimant appeals an Administrative Law Judge (hereinafter \nreferred to as “ALJ”) Opinion that the Claimant has failed to meet his \nburden of proof in demonstrating that he is permanently and totally \ndisabled.  Further Claimant appeals the ALJ finding that he is entitled to an \nadditional five percent (5%) in permanent partial disability based on his \nclaim for wage-loss benefits.  After conducting a thorough review of the \nrecord, I would concur in part and dissent in part.  \n1. The Claimant has failed to meet his burden of proof in \ndemonstrating that he is permanently and totally disabled.  \n Pursuant to Ark. Code Ann. § 11-9-519(e)(1), permanent total \ndisability means the “inability, because of compensable injury or \noccupational disease, to earn any meaningful wages in the same or other \nemployment.”  The burden of proof is on the employee to prove inability to \nearn any meaningful wages in the same or other employment.  Ark. Code \nAnn. §11-90519(e)(2). \n Permanent total disability shall be determined in accordance with the \nfacts.  Ark. Code Ann. § 11-9-519(c).  \n The Claimant suffered an admittedly compensable injury to his left \nhip on April 4, 2022, after falling off of a ladder working for Respondent.  \nClaimant underwent a left hip arthroplasty on May 2, 2022, as performed by \n\nGriffin-H202874  4 \n \n \nhis authorized physician, Dr. James Rudder.  On January 3, 2023, Dr. \nRudder places Claimant at maximum medical improvement stating “the \npatient has now reached maximum medical improvement.  He will have a \npermanent impairment that will be dictated under separate letter.”  Dr. \nRudder filled out an AR-3 for the Claimant and his compensable injury on \nFebruary 28, 2023.  Dr. Rudder stated that the Claimant cannot return to \nwork in his prior position as he will be unable to perform his prior duties and \nstated that the Claimant has suffered a permanent impairment rating of \n20% to the body as a whole.  Dr. Rudder does not take Claimant off of work \ncompletely.  In September of 2023, Dr. Rudder changed the Claimant’s \npermanent impairment rating to 15% to the body as a whole, but again does \nnot take Claimant off of work completely.  \nWhile the Claimant is unable to perform in his prior position, as \nopined by Dr. Rudder, there is not enough evidence in the record to \nconclusively state that the Claimant cannot earn any meaningful wages in \nthe same or other employment.  Claimant has received an FCE that placed \nhim in the medium category of work with reliable results, and his authorized \nphysician has not taken him off work completely.  Therefore, I must concur \nwith the ALJ’s findings that the Claimant failed to meet his burden of proof \nin demonstrating that he is permanently and totally disabled.  \n\nGriffin-H202874  5 \n \n \n2. The Claimant has met his burden of proof in demonstrating that \nhe is entitled to an additional 50% wage-loss disability benefit.  \n Wage-loss factor is the extent to which a compensable injury has \naffected the Claimant’s ability to earn a livelihood.  Whitlatch v. Southland \nLand & Dev., 84 Ark. App. 399, 141 S.W. 3d 916 (2004).  The Commission \nis charged with the duty of determining disability.  Cross v. Crawford County \nMemorial Hosp., 54 Ark.  App. 130, 923 S.W.2d 886 (1996).  In considering \nclaims for permanent partial disability benefits in excess of the employee’s \npercentage of permanent physical impairment, the Workers’ Compensation \nCommission may take into account, in addition to the percentage of \npermanent physical impairment, such factors as the employee’s age, \neducation, work experience, and other matters reasonably expected to \naffect his or her future earning capacity.  Ark. Code Ann. § 11-9-522(b)(1).  \nSuch other matters are motivation, post injury income, credibility, \ndemeanor, and a multitude of other factors.  Glass v. Edens, 233 Ark. 786, \n346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark.  App. 313, \n663 S.W.2d 946 (1984); Curry v. Franklin Electric, 32 Ark.  App. 168, 798 \nS.W.2d 130 (1990); Cross v. Crawford County Memorial Hosp., supra.  It is \nwell established that a claimant’s prior work history and education are \nfactors to be considered in determining eligibility for wage-loss benefits.  \nSee Cross v. Crawford County Memorial Hosp., supra.; Glass v. Edens, \n\nGriffin-H202874  6 \n \n \nsupra.; City of Fayetteville v. Guess, supra.; Curry v. Franklin Electric, \nsupra. \n Claimant is 59 years old.  Claimant graduated from high school and \nhas approximately one semester of college. Claimant obtained “votech” \ntraining for air-conditioning and refrigeration in the 1980s. Claimant’s prior \nwork-history includes working for refineries such as Lion Oil as a cleaner, \nWorsham Wholesale as a delivery person, and finally as a general laborer \nfor an aluminum boat company. Claimant worked for Respondent for \napproximately 30-years and does not have experience in skill-based jobs. \nLastly, Claimant testified that he had very little experience with computers \nor skilled labor.  \nClaimant underwent an FCE on February 14, 2023, where he was \ngiven a medium classification with reliable results based on an 8-hour \nworkday. Ultimately, the Respondents were unable to return the Claimant to \nthe position he had prior to his compensable injury, or any other position \nwithin their company.  \n Claimant’s compensable injuries have affected his ability to earn a \nlivelihood. Claimant has limited education. Claimant is unable to perform \nlabor intensive work as he has in the past. Claimant is also unable to earn \nwages equal to or greater than his average weekly wage at the time of the \n\nGriffin-H202874  7 \n \n \naccident. This Commission has ruled that significant wage-loss benefits are \nappropriate for fact patterns such as the case at hand. See Ark. Dot v. \nAbercrombie, 2019 Ark. App. 372, 584 S.W.3d 701 (2019); Ark. Highway & \nTransp. Dep’t v. Wiggins, 2016 Ark. App. 364, 499 S.W.3d 229. Therefore, I \nwould rule that the Claimant is entitled to 50% wage-loss disability over and \nabove his permanent impairment rating.  \nFor the reasons stated above, I respectfully concur in part and \ndissent in part. \n                                                                                              \n_______________________________ \n                                                         M. SCOTT WILLHITE, Commissioner","textLength":8800,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H202874 TODD O. GRIFFIN, EMPLOYEE CLAIMANT MILBANK MANUFACTURING COMPANY, EMPLOYER RESPONDENT STANDARD FIRE INSURANCE COMPANY/ TRAVELERS INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 5, 2024 Upon ...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["hip"],"fetchedAt":"2026-05-19T22:29:44.916Z"},{"id":"alj-H400203-2024-09-05","awccNumber":"H400203","decisionDate":"2024-09-05","decisionYear":2024,"opinionType":"alj","claimantName":"Juan Cerrato","employerName":"Dale Crampton Co. Inc","title":"CERRATO VS. DALE CRAMPTON CO. INC. AWCC# H400203 September 5, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/CERRATO_JUAN_H400203_20240905.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CERRATO_JUAN_H400203_20240905.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H400203 \n \n \nJUAN C. RAMIREZ-CERRATO, EMPLOYEE CLAIMANT \n \nDALE CRAMPTON CO. INC., EMPLOYER RESPONDENT \n \nSUMMIT CONSULTING LLC, CARRIER RESPONDENT \n \n \n OPINION FILED SEPTEMBER 5, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by ZACHARY F. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On July 30, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on June 20, 2024, and a pre-hearing order was filed on that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n 2.   The employee/employer/carrier relationship existed on or about June 5, 2023. \n            At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Whether claimant is entitled to additional medical benefits. \n All other issues are reserved by the parties. \n\nRamirez-Cerrato-H400203 \n2 \n \nThe claimant contends that “Such services are reasonably necessary for his compensable back \ninjury of June 5, 2023.” \nThe respondents contend that “All  appropriate  benefits  have  been  paid. The  suggested \ntreatment is not reasonable, necessary, or related.”   \n From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the witness \nand  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on June \n20, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.   Claimant has met his burden of proof by a preponderance of evidence that he is entitled \nto additional medical treatment from Dr. James Blankenship for his back injury. \n \n FACTUAL BACKGROUND \n At the hearing, the parties announced that the issue as recited in the prehearing order should \nbe amended to limit this claim solely to a lumbar back injury. I wrote that on the prehearing order. \nThe opening discussion before the testimony began clarified that claimant reserved any claim for other \npossible physical injuries.  \n The prehearing order did not specifically recite that the parties stipulated that claimant suffered \na compensable injury. However, because the respondents contended that all appropriate benefits had \nbeen  paid,  this  matter  was  tried to  determine  if  the recommended  treatment  was  reasonable  and \nnecessary, not whether claimant had suffered a compensable back injury on June 20, 2024. Therefore, \n\nRamirez-Cerrato-H400203 \n3 \n \n \nI did not believe it necessary for me to determine that claimant suffered a compensable injury on that \ndate. \nHEARING TESTIMONY  \n \n Claimant was the only witness at the hearing. He testified that on June 5, 2023, he was working \nfor Dale Crampton doing roofing work. Part of the job involved moving rolls of roofing material that \nweighed about ninety pounds each. Claimant said he had been doing that work for approximately one \nyear and three months and had no previous problems with his low back, hip, or leg before that date. \nOn June 5, 2023 claimant testified that the accident occurred as “we were installing rolls that were \napproximately ninety pounds.  I had to pick it up and then straighten it out towards the back to be \nable to lay it out. And at the moment when we were doing that, that is when the pain on my back \nstarted.”  Immediately after that, claimant had difficulty crouching and walking upright.  If he bent \nover, he could not straighten himself, and his back felt like he had a sting in it. The pain went down \nhis left side into his left leg. As claimant was not paid on his days off, he tried to work through the \npain until his foot was falling asleep.  \n At that point, respondent sent him to a doctor, and it was discovered that claimant had two \ndiscs  bulging  in  his  back. Claimant  was  put  on a  course  of physical  therapy,  having to work  in  the \nmorning  and  then  go  to  therapy  in  the  afternoon  so  he  would  not  lose  any  pay. Claimant  said  the \ntreatment from Dr. Cheyne did not help.  He now works at a job where he lifts less weight but is still \nhaving problems with his back and his hip and his leg. Claimant testified that Dr. Cheyne released him \nand advised him to find different types of work because his back was not fine. Claimant then saw Dr. \nBlankenship in Fayetteville, who recommended an MRI.   \n On cross-examination, claimant agreed that Dr. Cheyne sent him to physical therapy and gave \nhim some prescriptions. He said he refused the injection that Dr. Cheyne suggested because at that \n\nRamirez-Cerrato-H400203 \n4 \n \n \ntime,  the  pain  had  diminished  a  bit. Dr.  Cheyne  then  referred  claimant  for  a  functional  capacity \nevaluation.  \n Claimant said  he  gave a  good  effort  at  the  evaluation  and  received a  7%  impairment  rating \nbased on the existence of his L4-5 disc bulge. Claimant said he was in moderate pain while performing \nthe FCE. Claimant said he continues to have problems with his back. He disagreed with Dr. Cheyne’s \nlast report that said he was improving. Claimant insisted that he told him everything was still the same; \nthe leg was still painful and felt like little ants were crawling all over it. He also denied that he told the \nperson conducting the functional capacity evaluation this pain has subsided, because he still had pain.  \n Claimant was  surprised  that  he  had  been  fired  from  his  employment  with  respondent  Dale \nCrampton. He called his doctor and found that he had been discharged from Dr. Cheyne’s treatment. \nHe asked to see a different doctor and had his initial visit with Dr. Blankenship. While Dr. Blankenship \nhas not yet recommended surgery, claimant understood there could be a bad result but if he does not \nreceive treatment, his back is still in bad shape. \n On  re-direct  examination,  claimant  said  he is still  having a  lot  of  difficulties  with  his  back. \nWhen he sits, such as traveling in a car and gets up, it feels very numb. He conceded that his back is \nbetter some days than others, but he always has a significant level of difficulties. Claimant understood \nthe difference between Dr. Blankenship, an experienced neurosurgeon and Dr. Cheyne, who practices \nat  an  Occupational  Medicine  Clinic  that  specializes  in  conservative  care.  He  has  more  faith in Dr. \nBlankenship’s opinion. Claimant wants something done about his continuing difficulties be it surgery \nor not.  \n On re-cross examination, claimant said he didn’t feel Dr. Cheyne helped him much.  He always \ntold Dr. Cheyne he had pain and what worried him most was the numbing and tingling in his leg. He \nfelt they just wanted to discharge him from care. \n\nRamirez-Cerrato-H400203 \n5 \n \n \n On re-direct examination, claimant clarified that he did not go to see Dr. Cheyne after he was \ndischarged because he did not know that he would be able to see him again since he had been fired \nfrom his job.  \n Having the opportunity to observe the claimant’s testimony and compare what he said with \nthe medical records, I found him to be a credible witness. \nREVIEW OF THE MEDICAL RECORDS \n \n The  records  revealed  little  that  was not  brought  out  in  testimony. On  September  27,  2023, \nclaimant began conservative care which included a steroid pack, Tylenol, hot showers, and physical \ntherapy. During that examination, Dr. Cheyne recorded: “SLR positive on the left. 4/5 strength b/l, \nLLES,  DTRs,  one  plus  b/l  le  again, ROM is  slightly  limited  with  flexion. Pain  is  noted  with \nmovement.”  In his “Visit Summary for Employer,” Dr. Cheyne diagnosed the claimant with “1. Low \nback pain, 2.  Strain  of  muscle, facia, and  tendon of lower back,  3.  Radiculopathy,  lumbar  region. \nClaimant was put on restrictive duty of lifting no more than twenty pounds, with a ten-pound limit \nfor repetitive lifting.  \n Claimant had an X-ray on September 27, 2023. The findings were: \n“There is a normal alignment positioning of the lumbar spine. Vertebral body \nheights well maintained. No definite fractures are noted. Disc heights overall \nmaintained. Mild  interior  end plates spurring  at  L2-3  L3-4  and  L4-5. Facet \njoints grossly unremarkable. SI joints symmetric.”   \n \n  The impression was, “mild multilevel discogenic degeneration. No radiographic fractures or \ntraumatic malalignment.” \n After a month, claimant had an MRI to his lumbar spine on October 31, 2023.  The impression \nwas recorded as:  \n1. L4-L5  moderate  to large  left  paracentral  disc  protrusion  with  probable \nseparate  sequestered/extruded  fragment  and  narrowing  of  subarachnoid \nspace to 5.8mm.  \n\nRamirez-Cerrato-H400203 \n6 \n \n \n2.  L3-4 broad based moderate disc bulge with central small protrusion, mild \nnarrowing subarachnoid space facet arthropathy.  \n \n  Claimant  continued  with  office  visits  with  Dr.  Cheyne  throughout  the  rest  of  2023. On \nDecember 6, 2023, Dr. Cheyne recorded the following:  \n“Juan’s primary problem is pain located in the left side of the posterior neck, \nlower lumbar region. He describes it as sharp. The problem began on June 27, \n2023. Juan says it seems to be variable-- depending on the activity level. He has \nnoticed that it is made worse by lifting. He also notes that it is accompanied by \nstiffness. He feels he is improving slightly. His pain level is 0. Patient continues \nto have pain with lifting rolls that are 90 lbs.”   \n \n On January 3, 2024, claimant was given a functional capacity evaluation (FCE) in which he \nput  forth  a  reliable  effort. The  evaluator  recorded claimant demonstrated the  ability  to  perform an \noccasional bimanual lift carry of up to eighty pounds and could lift and carry up to forty pounds on a \nfrequent basis. The examiner concluded that the claimant had a 7% whole person impairment as a \nresult of his work-related injury. I will return to this in more detail in the adjudication section of this \nopinion.  \n  On January 11, 2024, Dr. Cheyne saw claimant for the last time.  His diagnosis was:  \n1. Low back pain \n2. Strain of muscle, fascia and tendon of lower back, subsequent encounter \n3. Radiculopathy, lumbar region. \n4. Other intervertebral disc displacement.  \n \n  Dr. Cheyne then accepted the findings of the FCE and discharged claimant, saying “treatment \ncompleted.”  \n On May 6, 2024, claimant saw Dr. James Blankenship. Dr. Blankenship noted that “five visits \nto  physical  therapy  is  certainly  not  consistent  with  an  adequate  routine  and  usual  conservative \ntreatment.”  After his examination, Dr. Blankenship had this impression:  \n“His  general  neurological  examination  revealed  the  patient  has  an  S1 \nradiculopathy on examination. Again, I do not have a hard copy of his MRI, \nwhich  does  not  really  matter  because  it  was done over  six months  ago. The \n\nRamirez-Cerrato-H400203 \n7 \n \n \nreport  does  show  a  very  large  disc  herniation  of  the left-hand side  at  L4-5, \nwhich would certainly correspond with his pain. He is having this significant \namount of left sided lower back pain.” \n \n Dr. Blankenship stated that he needed an MRI to determine, “what is going on now and what \nit looked like seven months ago.”  The records conclude with the request for the MRI and a denial \nfrom respondent Summit two days later. \n \nADJUDICATION \n \n It is the employer's responsibility to provide for an injured employee such medical treatment \nas may be reasonably necessary in connection with the injury received by the employee, Ark. Code \nAnn. 11-9-508(a). A claimant bears the burden of proving entitlement to additional medical treatment \nfor a compensable injury. LVL, Inc. v. Ragsdale, 2011 Ark. App. 144, 381 S.W.3d 869. What constitutes \nreasonably  necessary  treatment  is  a  question  of  fact  for  the  Commission. Id.  The  Commission  has \nauthority to accept or reject medical opinion and to determine its medical soundness and probative \nforce. Id. Respondents relied on the results of the FCE and the subsequent discharge from care by \nDr. Cheyne as their basis for denying Dr. Blankenship’s request for an MRI. After reviewing those \nreports, I find this reliance to be misplaced.  \n The FCE in this case is virtually useless. On each of the lifting tests, claimant failed to complete \nthe  test,  complaining  of  back  pain  caused  by  the  lifting. Since  the  examiner  found  claimant  gave  a \nreliable effort, there was no indication that claimant was exaggerating his discomfort in performing \npart of the tasks he was asked to do. Further, those lifting exercises were only a small portion of the \nentire evaluation, which took less than four hours; I would not expect the results over an 8-hour day \nto improve as the workday continued.\n1\n  The test also does not account for what type of problems—\n \n1\n Claimant testified that  he  was only examined for three hours. While I question the accuracy of the results of this \nFCE, I accept that claimant was there from 7:58 until 11:49 AM.  \n\nRamirez-Cerrato-H400203 \n8 \n \n \nif any—claimant would have later that day or the next after putting forth the reliable effort on the \nrequested tasks.  \n I cannot say with certainty that Dr. Cheyne did not read the entire FCE, as he quoted only \nfrom the summary. My reading of his report is that on December 6, 2023, claimant was reluctant to \nhave  a  steroid  injection, which caused Dr.  Cheyne  to order  the  FCE. There  were  no  reports  from \nphysical therapy introduced into the records, but Dr. Blankenship’s report of May 6, 2024, mentions \nthat claimant did “5 visits with very transient relief... Five visits to physical therapy is certainly not \nconsistent  with  an  adequate  care  routine  and  usual  conservative  treatment.”  I  agree  with  that \nassessment of the lack of care provided.  \nFurther, I quoted Dr. Cheyne’s December 6, 2023, report above. To illustrate how inconsistent \nit was, here it is again, with emphasis added:  \n“Juan’s primary problem is pain  located  in  the  left  side  of  the  posterior \nneck, lower lumbar region. He describes it as sharp. The problem began on \nJune 27, 2023. Juan says it seems to be variable-- depending on the activity \nlevel. He has noticed that it is made worse by lifting. He also notes that it is \naccompanied by stiffness. He feels he is improving slightly. His pain level \nis 0. Patient continues to have pain with lifting rolls that are 90 lbs.” \n \nThere is either a typographical error or a failure to  communicate, as Dr. Cheyne repeatedly \ndocumented claimant’s complaints of pain, and then said the “pain level is 0.”  I cannot square  the \ncontradictions in this paragraph. Dr. Cheyne had the results of the MRI on December 6, 2023, and \nheard  claimant  reporting  symptoms  that  are  entirely  consistent  with  bulging  discs. Nonetheless, he \nordered an FCE and then discharged claimant on January 11, 2024, under restricted duty, but in the \nheavy classification of work, closing with the advice that claimant might want to find employment that \ndoesn’t require such heavy lifting.    \nFrankly, even without Dr. Blankenship’s notes from May 6, 2024, I would have found claimant \nhad a reason to seek additional medical treatment for his back injury. With that report, this is not even \n\nRamirez-Cerrato-H400203 \n9 \n \n \na close call. The MRI Dr. Blankenship requested is reasonable and appears to be necessary to afford \nthis claimant the medical care to which he is entitled for this compensable injury.   \nORDER \n \nClaimant has met his burden of proving by a preponderance of the evidence that he is entitled \nto  additional  medical  treatment  as  recommended  by  Dr.  Blankenship  for  his  compensable  injury, \nbeginning with but not limited to the recommended MRI on his lumbar spine.  \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript the sum of $352.95. \n IT IS SO ORDERED. \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":16810,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H400203 JUAN C. RAMIREZ-CERRATO, EMPLOYEE CLAIMANT DALE CRAMPTON CO. INC., EMPLOYER RESPONDENT SUMMIT CONSULTING LLC, CARRIER RESPONDENT OPINION FILED SEPTEMBER 5, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, ...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","lumbar","hip","strain","repetitive","neck"],"fetchedAt":"2026-05-19T22:48:29.826Z"},{"id":"alj-G905912-2024-09-05","awccNumber":"G905912","decisionDate":"2024-09-05","decisionYear":2024,"opinionType":"alj","claimantName":"Gregory Patterson","employerName":"City Of Monette","title":"PATTERSON VS. CITY OF MONETTE AWCC# G905912 SEPTEMBER 5, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Patterson_Gregory_G905912_20240905.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Patterson_Gregory_G905912_20240905.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G905912 \n \nGREGORY PATTERSON, EMPLOYEE CLAIMANT \n \nCITY OF MONETTE, EMPLOYER RESPONDENT \n \nMUNICIPAL LEAGUE WC PROGRAM, CARRIER/ \nARKANSAS MUNICIPAL LEAGUE, TPA                       RESPONDENT \n \n \nOPINION FILED SEPTEMBER 5, 2024 \n \nHearing before Administrative Law Judge Steven Porch on July 26, 2024, in Jonesboro, Arkansas. \n \nClaimant was represented by Mr. Matthew J. Ketcham, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents were represented by Ms. Mary K. Edwards, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on July 26, 2024.  A prehearing telephone conference \ntook place on February 27, 2024. A prehearing order was filed on that date. However, an amended \nprehearing order was filed on February 28, 2024, amending the issue, and subsequently entered \ninto evidence as Commission Exhibit 1. The parties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. An employer/employee/carrier relationship existed among the parties on or \nabout September 10, 2019. \n \n3. The Claimant sustained a compensable head injury. \n \n \n \n \n \n \n\nPATTERSON AWCC NO. G905912 \n \n2 \n \nISSUES \n The parties have identified the following issue to be adjudicated: \n1. Whether Claimant is entitled to additional reasonable and necessary medical treatment \nfor his compensable head injury, specifically headaches and seizures. \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant Contentions. \nClaimant contends that he was injured on September 10, 2019, when he was a passenger \non an ATV in which the driver took a turn too fast causing the Claimant to be ejected from the \nvehicle which caused an injury to his head and brain. The Claimant was life-flighted to Regional \nOne Health Medical Center in Memphis, Tennessee for emergency treatment. He was hospitalized \nfor two days and was discharged with a head injury and intraparenchymal hemorrhage of the brain. \nThe Claimant followed-up with a neurosurgery within one month. The Claimant followed-up with \ntherapy including speech therapy within a month of the injury. On October 1, 2019, the Claimant \nwas seen by Dr. John Brophy for follow-up on the traumatic head injury. On December 19, 2019, \nthe Claimant was seen at St. Bernard’s Medical  Center  for  increased  headaches.  The  Claimant \ncontinued to follow-up with Dr. Brophy for continued increase in headaches and was released on \nJanuary  22,  2019.  The  Claimant  continued  regular  treatment  and  imaging  of  his  head  due  to \nongoing and continuous headaches. The Claimant began to have seizures along with numbness on \nthe left side of his body  and was seen at NEA Baptist Hospital wherein testing and evaluations \nhave been performed as well as continued follow-up with the Semmes-Murphy Clinic.  \nRespondent Contentions. \nRespondents contend that Claimant’s head injury was accepted as compensable, and he has \nreceived  all  reasonable  and  necessary  medical  treatment  and  indemnity  benefits.  On  September \n\nPATTERSON AWCC NO. G905912 \n \n3 \n \n10, 2019, Claimant jumped out of a mule and hit his head. He was med-flighted to the Regional \nOne Health Medical Center in Memphis. Claimant saw Dr. Brophy, who released him to full duty, \nplacing him at maximum medical improvement and no improvement rating on January 22, 2020. \nClaimant saw a neuropsychologist, Dr. Zolten on December 9, 2021. Dr. Zolten noted his memory \nwas  normal  and  did  not  recommend  further  treatment  for  the  compensable  injury.  Dr.  Brophy \nconfirmed that Dr. Zolten’s neuropsychologist report was normal and released him from his care \non  January  25,  2022.  Respondents  are  not  aware  of  any  further  medical  treatment  or  treatment \nrecommendations.    \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, non-medical documents, \nand other matters properly before the Commission, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The  Claimant  has  proven  by  the  preponderance  of  the  evidence  that  he is  entitled  to \nreasonable and necessary medical treatment for his headaches and seizures.    \n \n \nCASE IN CHIEF \nSummary of Evidence \n The record consisted of Claimant’s Exhibit 1, Medical Records, that consists of 109 pages, \nRespondent Exhibit 1, medical records, consisting of 84 pages, Respondents Exhibit 2, medical \nand  Indemnity  logs,  consisting  of  4  pages,  and Commission  Exhibit  1,  Pre-Hearing  Order,  that \nconsists of 5 pages. I have also blue-backed Claimant’s and Respondents’ post-hearing briefs.  I \n\nPATTERSON AWCC NO. G905912 \n \n4 \n \nalso had the opportunity to hear the testimony and observe the demeanor of the Claimant, who was \nthe only witness in the full hearing.  \nThe Claimant worked in road construction for Respondent/Employer. Claimant suffered a \ncompensable head injury on September 10, 2019, when he was thrown from an ATV injuring his \nhead. This resulted in a closed head injury with intracranial hemorrhage. Resp. Ex. 1, page 18. The \nRespondents accepted the injury as compensable and paid temporary total disability and medical \nbenefits  for  Claimant.  Though  Claimant,  through  direct  testimony,  agreed  he  has  completed \noccupational  therapy  that  improved  his  speech  and  standing,  he  continues  to  receive  medical \ntreatment for headaches. See Resp. Ex. 1, pages 14 – 16. Respondents sent Claimant to Dr. John \nBrophy at the Semmes-Murphy Clinic in Memphis on October 1, 2019. Resp. Ex. 1, pages 18 – \n22. Dr. Brophy cleared Claimant to return to school, as he was a high school student, and return to \nwork with restrictions. The Claimant received a CT scan of his head on December 19, 2019, that \nfound no evidence of acute intracranial hemorrhage. Resp. Ex. 1, page 36. This time Dr. Brophy \nreleased Claimant to return to work full duty without restrictions on January 22, 2020. Resp. Ex. \n1, pages 37 - 42. Dr. Brophy also found that he did not sustain any permanent impairment and that \nhe has reached maximum medical improvement or the end of his healing period on January 22, \n2020. Id. \nOn  August  22,  2020,  the  Claimant  was  involved  in  a  motor  vehicle  accident  where  he \ninjured his neck, upper to mid back, right forearm, and right knee. Resp. Ex. 1, pages 43 – 47. A \nC-collar was placed on Claimant while in triage to limit the movement of his neck. A CT scan of \nClaimant’s cervical spine was normal. Resp. Ex. 1, page 46. The Claimant saw Dr. John Brophy \nagain on September 28, 2021, one year and nine months from his last visit, and was recommended \nfor a neuropsych evaluation on December 9, 2021; Dr. A.J. Zolten, Clinical Neuropsychologist, \n\nPATTERSON AWCC NO. G905912 \n \n5 \n \nperformed  the  evaluation.  Resp.  Ex.  1,  page  57 - 60.  The  neuropsychological  testing  revealed \nsubtle to mild residual auditory/verbal weaknesses including modestly lower-than-expected core \nauditory cognitive skills, paraphasia noted during confrontational naming, and low average FAS \nverbal fluency. Id. All these findings are mildly weaker than expected. Id. Dr. Zoltan made clear \nin his report that since Claimant is two years post injury, these problems are likely to be chronic, \nbut  he  doubts  that  these  problems  will  interfere  with  overall  functioning  when  considering \nactivities for daily living or his work. Id. Dr. Zolten concludes his report by stating memory, motor, \nvisual perceptual, and executive skills were all entirely within the normal limits. Id. Dr. Brophy \nopined,  during  a  January  25,  2022,  follow-up visit to review Dr. Zolten’s evaluation, that no \nsignificant cognitive problems are noted based on the neuropsychological evaluation that was two \nyears post closed head injury. Resp. Ex. 1, pages 61 -64. Claimant was cleared to remain at work \non full duty without restrictions. Id. Dr. Brophy also opined that “no further treatment is indicated \nat this time.”  Id.  \nClaimant  next  visited  the  Buffalo  Island  Medical  Clinic  on  July  25,  2022,  complaining \nabout episodes of “passing out”. Claimant’s Ex. 1, pages 1 – 4. The Claimant testified that these \nepisodes of ‘passing out’ were contributed to seizures. The Claimant received an MRI of his head \nin an effort to discover the source of these fainting spells or syncope on August 8, 2022. The MRI \nreport stated that “No abnormal areas of enhancement are noted within the brain.” Claimant’s Ex. \n1,  pages  14 – 15.  The  final  impression of the report was a “negative MRI of the brain with \ncontrast.” Despite the Claimant’s MRI noting a normal brain, the Claimant was prescribed Keppra, \na seizure medication, and continued to be treated for seizures. The Respondents, at this time, were \nnot paying for treatment of the headaches nor the seizures. Respondents stopped paying benefits \nto Claimant on January 25, 2022. \n\nPATTERSON AWCC NO. G905912 \n \n6 \n \nAdjudication \nA. Whether Claimant is entitled to additional reasonable and necessary medical \ntreatment for his compensable head injury, specifically for headaches and \nseizures. \n \n Arkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states that an employer shall \nprovide for an injured employee such medical treatment as may be necessary in connection with \nthe  injury  received  by  the  employee.   Wal-Mart  Stores,  Inc.  v.  Brown,  82  Ark.  App.  600,  120 \nS.W.3d 153 (2003).  But employers are liable only for such treatment and services as are deemed \nnecessary for the treatment of the claimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, \n725 S.W.2d 857 (1987).  The claimant must prove by a preponderance of the evidence that medical \ntreatment is reasonable and necessary for the treatment of a compensable injury.  Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What  constitutes \nreasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the  Commission.   White \nConsolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut Corp. v. \nJones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to  additional \ntreatment even after the healing period has ended, if said treatment is geared toward management \nof the injury.  See  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); \nArtex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  Such services can \ninclude  those  for  the  purpose  of  diagnosing  the  nature  and  extent  of  the  compensable  injury; \nreducing or alleviating symptoms resulting from the compensable injury; maintaining the level of \nhealing achieved; or preventing further deterioration of the damage produced by the compensable \ninjury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra.  A \n\nPATTERSON AWCC NO. G905912 \n \n7 \n \nclaimant is not required to furnish objective medical evidence of his continued need for medical \ntreatment.  Castleberry v. Elite Lamp Co., 69 Ark. App. 359, 13 S.W.3d 211 (2000). \n But to prove his entitlement to the treatment at issue, Claimant must also prove that it is \ncausally  related  to  his  compensable  injury  of September 10,  2019.   See  Pulaski  Cty.  Spec.  Sch. \nDist. v. Tenner, 2013 Ark. App. 569 (2013) \nI  find  by  the  preponderance  of  the  evidence  that  Claimant  has  proven  he  is  entitled  to \nadditional  medical  treatment  for  his  headaches  and  treatment  for  seizures. Though  I  make  this \nfinding,  I  do  acknowledge  Respondents’  arguments to  the  counter.  For  example, Claimant \nmentioned to Dr. Brophy on October 22, 2019, that he was having increased headaches when using \nhis  computer  at  school.  Dr.  Brophy,  during  a  clinic  visit  on  January  21,  2022,  opined  that \nClaimant’s headaches have improved. Resp. Ex. 1, pages 37 – 39. Claimant’s next follow up visit \nwith Dr. Brophy occurred on September 28, 2021, over a year and a half since his last visit, and \nClaimant did not report a headache. Resp. Ex. 1, pages 52 – 55. The next clinic visit was on January \n25, 2022, there Dr. Brophy noted that Claimant had fatigue “without headaches”. It would appear \nthat  Claimant’s headaches had resolved but being  symptom  free  for  a  period of  time does  not \nequate to the complete resolution of the symptom. Which is evident in this case that the headaches \nhave returned, and the evidentiary record does not provide any other explanation for the headaches \nother than the compensable closed head injury. This is the same for the seizures.  \nClaimant  in  an  August  2,  2022,  medical  report  by  Neurology  Associates  of  Northeast \nArkansas PA, written approximately three years after the work-related injury, stated he has been \nexperiencing  severe  headaches  and  passing  out  episodes  for  at  least  the  last two  months. \nClaimant’s  Ex.  1,  pages  5 – 13.  Dr.  Ronald  South  prescribed  Claimant  Keppra,  a  seizure \nmedication. Id. Dr. South did not state in his report that the seizures were related to the Claimant’s \n\nPATTERSON AWCC NO. G905912 \n \n8 \n \ncompensable   work-related   head   injury.   Moreover,   when   Claimant   visited   the Neurology \nAssociates of Northeast Arkansas on April 5, 2023, he was experiencing left side numbness, left \nside facial numbness, and blurry vision for a week that resulted in a trip to the emergency room at \nNEA. Claimant’s Ex. 1, pages 53 – 57.  The ER doctors concluded that it was a pinched nerve and \ngave him a Toradol shot. Id. The treatment of the pinched nerve was successful in dealing with \nClaimant’s symptoms, except for the headaches. Id. I do not find that Claimant’s numbness was \nthe result of a seizure, rather a pinched nerve. However, Claimant is suffering from seizures and \nthere are no other explanations for them from the evidentiary record other than the work-related \ncompensable head injury. Claimant’s Ex. 1, pages 71-80. Therefore, I find that the Claimant has \nproven by the preponderance of the evidence a causal connection between Claimant’s headaches \nand  seizures and  his compensable work-related  injury.  Thus,  Claimant  is  entitled  to  additional \nmedical treatment for his headaches and seizures.  \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nClaimant’s requests for additional medical treatment for headaches and seizures are denied and all \nparties shall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":15293,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G905912 GREGORY PATTERSON, EMPLOYEE CLAIMANT CITY OF MONETTE, EMPLOYER RESPONDENT MUNICIPAL LEAGUE WC PROGRAM, CARRIER/ ARKANSAS MUNICIPAL LEAGUE, TPA RESPONDENT OPINION FILED SEPTEMBER 5, 2024 Hearing before Administrative Law Judge Steven Porch on July 26, ...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["neck","back","knee","cervical"],"fetchedAt":"2026-05-19T22:48:31.903Z"},{"id":"full_commission-H401058-2024-09-04","awccNumber":"H401058","decisionDate":"2024-09-04","decisionYear":2024,"opinionType":"full_commission","claimantName":"Daniel Casey","employerName":"Oak Street Valero","title":"CASEY VS. OAK STREET VALERO AWCC# H401058 September 4, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Casey_Daniel_H401058_20240904.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Casey_Daniel_H401058_20240904.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO. H401058 \n \nDANIEL CASEY, \nEMPLOYEE \n \nCLAIMANT \nOAK STREET VALERO,  \nEMPLOYER \n \nRESPONDENT \nACCIDENT FUND INSURANCE COMPANY, \nOF AMERICA, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 4, 2024  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE CAROL LOCKARD \nWORLEY, Attorney at Law, Little Rock, Arkansas. \n \n \n ORDER \n The claimant petitions the Full Commission to review and dismiss an \nadministrative law judge’s order dated July 12, 2024.  The Full Commission \ndenies and dismisses the petition for review. \n Ark. Code Ann. §11-9-711(a)(Repl. 2012) provides, in pertinent part: \n(1)  A compensation order or award of an administrative law \njudge or a single commissioner shall become final unless a \nparty to the dispute shall, within thirty (30) days from the \nreceipt by him or her of the order or award, petition in writing \nfor a review by the full commission of the order or award.   \n \n For an order to be appealable, it must be final.  TEC v. Falkner, 38 \nArk. App. 13, 827 S.W.2d 661 (1992).  To be final, an order must dismiss \nthe parties from the court, discharge them from the action, or conclude their \n\nCASEY - H401058  2\n  \n \n \nrights as to the subject matter in controversy.  American Mutual Insurance \nCo. v. Argonaut Insurance Co., 33 Ark. App. 82, 801 S.W.2d 55 (1991). \n In the present matter, the administrative law judge has filed an \nORDER ALLOWING CASE MANAGER TO COMMUNICATE WITH \nCLAIMANT REGARDING HIS MEDICAL TREATMENT.  Said order does \nnot dismiss the parties, discharge them from the action, or conclude their \nrights to the subject matter in controversy.  The Full Commission therefore \ndenies and dismisses the petition for review, because the administrative law \njudge’s order is not final and appealable.   \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2276,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H401058 DANIEL CASEY, EMPLOYEE CLAIMANT OAK STREET VALERO, EMPLOYER RESPONDENT ACCIDENT FUND INSURANCE COMPANY, OF AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 4, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:44.907Z"},{"id":"alj-H400052-2024-09-03","awccNumber":"H400052","decisionDate":"2024-09-03","decisionYear":2024,"opinionType":"alj","claimantName":"Jimmy Pruitt","employerName":"Nidec Motor Corp","title":"PRUITT VS. NIDEC MOTOR CORP. AWCC# H400052 September 3, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PRUITT_JIMMY_H400052_20240903.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PRUITT_JIMMY_H400052_20240903.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H400052 \n \nJIMMY PRUITT, Employee CLAIMANT \n \nNIDEC MOTOR CORP., Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED SEPTEMBER 3, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by GREGORY R. GILES, Attorney at Law, Texarkana, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On June  6,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.      A  pre-hearing  conference  was  conducted  on March  11,  2024,  and  a  Pre-hearing \nOrder  was  filed  on March  12,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on July 15, \n2023. \n 3. The  claimant  sustained  a  compensable  injury  to  his  right  shoulder  on  or  about  July \n15, 2023. \n By agreement of the parties the issues to litigate are limited to the following: \n\nPruitt – H400052 \n \n-2- \n 1. Whether Claimant is  entitled to medical treatment for his compensable right shoulder \ninjury in the form of surgery as recommended by Dr. Justin Walden. \n The claimant's contentions are as follows: \n“a.  Claimant  contends  that  he  is  entitled  to  the  additional  medical \ntreatment being recommended by Dr. Justin Walden.” \n \n The respondents’ contentions are as follows: \n“Respondents  contend  that  comparison  of  the  two  MRIs  fail  to \nshow  a  need  for  surgery  related  to  the  work  injury.  Claimant’s \nsubsequent   findings   and   any   surgical   recommendation   is   not \nrelated  to  the  July  15,  2023  work  event and  therefore  is  not  the \nresponsibility of the respondents.” \n \n The  claimant  in  this  matter  is  a 50-year-old  male  who  sustained  a  compensable  right \nshoulder injury on or about July 15, 2023. At the hearing in this matter the claimant gave direct \nexamination testimony about how his right shoulder injury occurred as follows: \nQ And   on   July   the   15\nth\n of   2023,   describe   for   us   what \nhappened that you sustained your injury. \n \nA I had cranked the table down so I could sit down and when \nit  came  to  the  end  of  my  shift,  we  always  have  to  crank  the  table \nback up. And as I was cranking it up, it jammed. And when I was \ntrying to pull the bar to turn it, I felt a pop and pulling and burning \nsensation in my shoulder. (indicating). \n \nQ Which arm were you using to crank the crank? \n \nA The right shoulder, the right hand. \n \nQ I  guess  from  a  sitting  position  to  a  raised  position,  how \nmuch are you able to lower or raise the table? \n \nA It’s about two-foot to raise it all the way back up. \n \nQ And as you were trying to raise it back up, what happened \nwith the crank? \n \n\nPruitt – H400052 \n \n-3- \nA The  table  jammed  and  I  pulled  and  when  I  did,  I  felt  the \nhurt  in  my  shoulder,  the  pain,  the  pulling  sensation  (indicating), \nburning. \n \n The claimant reported his injury at that time. However, the claimant declined to go see a \ndoctor. The claimant continued to work in a light duty capacity for the respondent. The claimant \ntestified that his right shoulder symptoms became worse over the next weeks and was allowed to \nsee the company doctor after talking to his safety manager.  \n On August 14, 2023, the claimant was first seen for his compensable right shoulder injury \nby James McWilliams, ANP. Following is a portion of that medical report from JMAC Medical: \nHPI:  \nPt  sustained  what  was  thought  to  be  mild  right  shoulder  strain  at \nwork  on  7/15.  Since  then  he  has  been  taking  ibuprofen  but  the \nshoulder  has  not  improved.  He  has  pain  in  the  shoulder  when  he \nreaches  overhead  or  horizontal  with  outstretched  arms.  The  pain \ntends to throb at night. \n \n*** \nAssessment:  \nImpingement syndrome of shoulder region (disorder) \nM75.4/726.2)  Impingement  syndrome  of  right  shoulder  modified \n14 Aug. 2023. \n \nPlan:  \nImpingement syndrome of shoulder region (disorder) \n1. Right shoulder corticosteroid injection \n \nThe claimant was also given a right shoulder corticosteroid injection at that visit and given a full \nduty release.  \n On  August  19,  2023,  the  claimant  was  again  seen  by  ANP  McWilliams.  Following  is  a \nportion of that medical record: \nSubjective:  \nPt  sustained  what  was  thought  to  be  mild  right  shoulder  strain  at \nwork  on  7/15.  He  had  pain  in  the  shoulder  whenever  he  reaches \noverhead  or  horizontal  with  outstretched  arms.  The  pain  tends  to \n\nPruitt – H400052 \n \n-4- \nthrob at night. On 8/14 he was seen by this provider and was given \ncorticosteroid  injection  into  the  affected  shoulder.  However,  he \nsays  the  pain  never  resolved  and  may  be  somewhat  worse.  He  is \nalso having numbness in his right arm and hands. He says that this \nimproves somewhat by letting his arm dangle and shaking it. Also \nc/o pain in bilateral anterior thighs and loss of taste. \n \n*** \nPlan:  \nI  have  discussed  with  pt  that  arm  numbness,  thigh  pain,  &  taste \nsensation  are  all  under  3  different  locus  of  neurological  control. \nThe fact that he can achieve improved sensation in his right arm by \nletting  it  dangle  is  subjective  of  circulatory  etiology.  It  is  difficult \nto imagine his recent shoulder injection causing these problems. \n \nTaste sense altered (finding) \n1. Rapid COVID negative \n2. May need neuro consult if this persists \n \nThigh pain (finding) \n1. OTC ibuprofen \n \nNumbness and tingling sensation of skin (finding) \n1. Limit overhead reaching \n \nImpingement syndrome of shoulder region (disorder) \n1. Right shoulder MRI without contrast. \n \nThe claimant was also prescribed gabapentin 300 mg, one capsule two times per day.  \n On  September  13,  2023,  the  claimant  underwent  an  MRI  of  his  right  shoulder  at  Mena \nRegional  Health.  The  report  from  that  diagnostic  test  was  signed  by  Dr.  Jonathan  Welsh.  A \nportion of that report follows: \nFINDINGS:  Multiplanar  T1  and  T2  weighted  images  of  the  right \nshoulder were obtained. \n \nThe motor cuff muscles and tendons are intact. The biceps tendon \nis  within  the  bicipital  groove.  The  glenoid  labrum  is  normal  in \nappearance. There is moderate acromioclavicular joint \ndegenerative  joint  disease  with  subarticular  bone  marrow  edema \npresent in the distal clavicle and acromion. There is a small amount \n\nPruitt – H400052 \n \n-5- \nof   fluid   in   the   subacromial/subdeltoid   bursa   consistent   with \nbursitis. \n \nIMPRESSION: \n1. Acromioclavicular    joint    degenerative    joint    disease    with \ninflammatory changes including subarticular bone marrow edema. \n2. Evidence of bursitis. \n \n On September 15, 2023, ANP McWilliams placed a memo in the claimant’s medical \nrecord. The body of that memo follows: \nReceived the results of right shoulder MRI that was performed on \nSeptember  13\nth\n.  The  rotator  cuff  muscles  and  tendons  are  intact. \nThe  bicep  tendon  is  in  place  within  the  bicipital  groove.  The \nlabrum  is  normal  in  appearance.  There  is  moderate  AC  joint \ndegenerative  joint  disease  with  subarticular  bone  marrow  edema \npresent  in  the  distal  clavicle  and  the  acromion.  There  is  a  small \namount of fluid in the subacromial subdeltoid bursa consistent with \nbursitis.  Discussed  the  case  with  radiologist  about  possibility  of \nosteomyelitis.  His  impression  was  while  certainly  it  is  possible  it \nwould not be his first suspicion as the bone marrow edema would \nbe  consistent  with  the  AC  joint  DJD  which  often  affects  the \nacromion  as  well.  Septic  arthritis  and  other  inflammatory  process \nare within DDx. Will check CBC and CRP. \n \n ANP McWilliams had the claimant’s blood drawn and tested to rule out an infection in \nhis  right  shoulder  on  September  19,  2023.  An  addendum  was  done  after  the  results  of  the \nclaimant’s blood test as follows: \nReceived  results  of  CBC  &  CRP.  WCBs  are  normal  (7.7)  which \nsuggest  no  infection.  The  CRP  is  also  normal  suggestive  of  low \namount of inflammation consistent with the bursitis seen on recent \nMRI.    Recommend    continuation    of    anti-inflammatories    and \nparticipation in PT. \n \n On September 27, 2023, the claimant was again seen by ANP McWilliams. Following is \na portion of that medical report: \nSubjective:  \nPt continues to have right shoulder pain with numbness in his right \narm.  He  stated  that  he  injured  the  arm  at  work  on  7/15  and  was \n\nPruitt – H400052 \n \n-6- \nseen  by  me  on  8/14  after  it  failed  to  improve.  At  that  time \nexamination indicated right shoulder impingement as he could not \nabduct the arm without significant pain. Apley Scratch and Empty-\nCan tests were positive for impingement. At that time he was given \ncorticosteroid  injection  in  the  shoulder.  However,  5  days  later  he \nreported that the pain never resolved and was somewhat worse. He \nalso reported onset of numbness in right arm and hands and pain in \nbilateral  anterior  thigs  and  loss  of  taste.  In  was  explained  to  him \nthen  that  this  collection  symptoms  could  not  all  be  caused  by  the \nsame  anatomical  injury.  MRI  of  the  right  shoulder  was  obtained \nand  demonstrated  AC  joint  djd  with  inflammatory  changes  and \nsubarticular   bone   marrow   edema   in   the   distal   clavicle   and \nacromion.  There  was  also  a  small  fluid  accumulation  in  the \nsubdeltoid  bursa  consistent  with  shoulder  bursitis.  Discussed  the \nMRI  with  radiologist  and  he  thought  it  was  probably  not  likely  to \nbe   osteomyelitis   but   CBC   and   CR-P   were   done   to   rule   out \ninfection  and  both  of  these  were  negative.  Pt  states  to  me  today \nthat  he  had  prior  injury  to  the  shoulder  which  also  caused  pain  in \nhis right shoulder and this was reported to safety officer at the time \nover a year ago. However, it resolved spontaneously and didn’t \ngive him any trouble until recent reinjury. \n \n*** \nPlan:  \nImpingement syndrome of shoulder region (disorder)  \nI  have  discussed  with  him  that  his  MRI  findings  explain  shoulder \npain  but  his  arm  &  hand  numbness  are  more  suggestive  of  cspine \nor  carpal  tunnel  etiology.  As  his  original  injury  was  specified  as \nonly  shoulder  pain  I  explained  to  him  that  I,  or  another  provider, \ncould  work  up  that  problem  on  his  private  medical  insurance  but \nworkman’s comp restricts me to the injury he first presented with. \nThe  logical  next  step  would  be  to  send  him  for  specialty  care, \neither Orthopedics, Physiatry, or PT for the shoulder impingement. \nHe will continue to be restricted from reaching away from his body \nor overhead with extended arms. \n \n1. Physical Therapy Eval and Treat right shoulder pain \n \n The  claimant  began  to  see  Dr.  Justin  Walden  at  Chi  St.  Vincent  in  Hot  Springs  on \nNovember  13,  2023,  for  his  right  shoulder  complaints.  Following  is  a  portion  of  that  medical \nreport: \n\nPruitt – H400052 \n \n-7- \nSUBJECTIVE: Jimmy Pruitt is here for complaints of pain in right \nshoulder.  He  reports  pain  began  7-15-2023.  He  was  at  work  and \nwas  cranking  a  table  and  the  gears  stuck  and  he  felt  a  pulling \nsensation  associated  with  pain  in  his  right  shoulder.  He  reports  he \nhad  occasional  soreness  in  his  shoulder  prior  to  this  episode  but \nnever  pain  this  severe.  He  is  right-hand  dominant.  He  denies  any \nnumbness  or  tingling  to  his  right  upper  extremity.  He  works  at \nNidec  motors.  He  has  had  previous  physical  therapy  which  made \nhis pain worse. He has had previous corticosteroid injection which \nhe had an allergic reaction with loss of taste and tingling sensation \nthrough his right side. He has been taking oral anti-inflammatories \nwith  no  improvement.  He  is  unable  to  sleep  on  his  right  side.  He \nhas  been  working  light  duty.  He  has  not  had  previous  surgery  to \nhis right shoulder. \n \n*** \nIMAGING STUDIES: Grashey AP and axial lateral views of right \nshoulder  in  office  today  which  show  moderate  acromioclavicular \njoint space narrowing. No glenohumeral joint space narrowing. No \nacute  fracture.  Humeral  head  centered  on  glenoid.  No  hardware \npresent. \n \nMRI  images  unavailable  for  review  but  report  shows  subacromial \nbursitis with AC arthritis and bony edema. \n \nASSESSMENT: Right shoulder AC arthritis, biceps tendinitis, and \nsubacromial bursitis. \n \nTREATMENT  AND  PLAN:  Patient  is  shoulder  is  related  to \naggravation   of   pre-existing   arthritis.   Diagnosis   and   treatment \noptions discussed with patient recommended shoulder arthroscopy \nwith biceps tenotomy, subacromial decompression, and open distal \nclavicle excision. Details of surgery as well as anticipated recovery \nwere  discussed  with  patient  as  well  as  need  for  postoperative \ntherapy and  activity restrictions. Potential complications including \ninfections,  arthrofibrosis,  chronic  pain,  neurovascular  injury,  and \nanesthetic related complications. All questions were answered. \n \nMy   future   plan   of   care   may   include   medications,   injections, \nradiographs,   physical   therapy,   occupational   therapy,   advanced \nimaging,  splint  application,  cast  application,  bracing  and  surgical \nintervention  as  indicated.  Future  follow  up  visits  may  be  with \nNeysa Ellis, PA-C, Jared Wilson, PA-C, or Mallory Melby, PA-C. \n \n\nPruitt – H400052 \n \n-8- \n On  January  19,  2024,  Dr.  Walden  authored  an  addendum  to  his  November  13,  2023, \nmedical  report  regarding  the  claimant.  As  Dr.  Walden  noted,  he  was  unable  to  view  the  actual \nMRI images during the claimant’s November 13, 2023, visit as they were unavailable to him. \nHowever, apparently, Dr. Walden received the MRI images and made the following addendum: \nAddendum 1-19-2024: MRI images of right shoulder received and \nwere  reviewed  which  showed  right  shoulder  AC  arthritis  with \nedema  indicating  acute  inflammation.  There  is  effusion  of  AC \njoint.  Near  complete  detachment  of  superior  labrum  and  biceps \ninsertion. Partial thickness tear of supraspinatus with no atrophy or \nretraction. Recommend shoulder arthroscopy and  biceps tenotomy \nand mini open distal clavicle excision. \n \n The claimant has asked the Commission to determine whether he is entitled to additional \nmedical  treatment  for  his  compensable  right  shoulder  injury  in  the  form  of  the  surgical \nprocedures recommended by Dr. Walden in his January 19, 2024, addendum. \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n On  February  7,  2024,  Dr.  John  Jaksha  with  Mena  Regional  Health  System  authored  a \n“Preliminary Report”  regarding  the  claimant’s  September 13,  2023,  right  shoulder  MRI. \nFollowing a portion of that “Preliminary Report:” \nClinical  History:  Second  opinion,  muscular/skeletal,  radiologist  if \npossible, HX of traumatic injury, patient for surgical consult (Hx). \n \n\nPruitt – H400052 \n \n-9- \n*** \nFindings: \nNo rotator cuff tear is identified. \nMinimal edema of the distal supraspinatus and mild peritendinous \nedema could represent a mild tendon strain or tendinopathy. \nMinimal  edema  along  the  superficial  margin  of  the  infraspinatus \ncould represent a mild muscle strain. \n \nBiceps tendons intact. \nNo definite labral tear is seen. \nModerate  acromioclavicular  degenerative  changes  with  narrowing \nof the shoulder outlet. \nModerate  marrow  edema  in  the  distal  clavicle  is  indeterminate. \nDifferential  diagnosis  includes  sequoia  of  degenerative  changes, \nrecent or repetitive trauma. \n \nImpression: \nMinimal edema distal supraspinatus tendon. \nMinimal  edema  along  the  superficial  margins  of  the  infraspinatus \nmuscle. \nAcromioclavicular  degenerative  changes  with  marrow  edema  in \nthe distal clavicle, see above. \n \n On February 28, 2024, Dr. Bryan Frentz authored a report regarding the claimant’s right \nshoulder  and  answered  questions  at  the  conclusion  of  the  report.  The  parties  agreed  that  this \nreport, which is found at Respondents’ Exhibit 1, pages 20-23,  was  generated  through  a  record \nreview and that review did not include viewing the MRI images of the claimant’s right shoulder. \nInstead,  medical  reports  about  the  MRI  results  were  used.  I  also  note  that  the  claimant  was  not \nexamined  by  Dr.  Frentz. On  page  22  of  Respondents’  Exhibit  1,  Dr.  Frentz  answered  the \nfollowing question, “Do the surgery requests make sense with the MRI report?” Dr. Frentz \nanswered, “No. There is essentially no significant pathology noted on the right shoulder MRI \nreport that would justify any type of surgical intervention.” \n This  matter  really  comes  down  to  a  question  of  what  do  the  September  13,  2023,  MRI \nimages of the claimant’s right shoulder actually show. Dr. Welsh, a staff radiologist at Mena \n\nPruitt – H400052 \n \n-10- \nRegional  Health,  and  Dr.  Jaksha,  who  signs  his  name  with  “Diplomat,  American  Board  of \nRadiology,” both have very similar findings after reviewing the MRI images. Neither saw the \ntype  of  derangement  Dr.  Walden,  who  is  an  orthopedic  surgeon,  saw  when  he  viewed  the  MRI \nimages  and  made  a  January  19,  2024,  addendum  about  his  findings.  At  that  time  Dr.  Walden \nstated:  \n... showed right shoulder AC arthritis with edema indicating acute \ninflammation.   There   is effusion   of   AC   joint.   Near   complete \ndetachment  of  the  superior  labrum  and  biceps  insertion.  Partial \nthickness tear of supraspinatus with no atrophy or retraction. \n \nI also note Dr. Walden had the opportunity to physically examine the claimant on November 13, \n2023, during the claimant’s office visit with him.  \nIn review of the medical evidence, I find that more weight should be given to Dr. Walden \nwho was not only able to review the MRI images of the claimant’s right shoulder but had the \nopportunity  to  physically  examine  the  claimant.  Both  Dr.  Jaksha  and  Dr.  Welsh  only  examined \nthe MRI images. Given Dr. Walden’s opinion, I find his proposed surgical intervention of the \nclaimant’s right shoulder to be reasonable and necessary medical treatment for his compensable \nright shoulder injury. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n \n \n \n\nPruitt – H400052 \n \n-11- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nMarch 11, 2024, and contained in a Pre-hearing Order filed March 12, 2024, are hereby accepted \nas fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nmedical treatment for his compensable right shoulder injury in the form of surgical intervention \nas recommended by Dr. Justin Walden. \n ORDER \nThe  respondent  shall  pay  for  the  reasonable  and  necessary  medical  treatment  associated \nwith the claimant’s compensable right shoulder injury in the form of surgical intervention and its \naftercare.  \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":21071,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H400052 JIMMY PRUITT, Employee CLAIMANT NIDEC MOTOR CORP., Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED SEPTEMBER 3, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claim...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","back","strain","fracture","rotator cuff","repetitive"],"fetchedAt":"2026-05-19T22:48:27.749Z"},{"id":"alj-H401544-2024-08-29","awccNumber":"H401544","decisionDate":"2024-08-29","decisionYear":2024,"opinionType":"alj","claimantName":"Marcos Herrera","employerName":null,"title":"HERRERA VS. AWCC# H401544 August 29, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HERRERA_MARCOS_H401544_20240829.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HERRERA_MARCOS_H401544_20240829.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H401544 \n \nMARCOS E. HERRERA (DECEASED), EMPLOYEE   CLAIMANT \n \nTYSON POULTRY INC., SELF-INSURED EMPLOYER RESPONDENT \n \n \nOPINION/ORDER FILED AUGUST 29, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is deceased and not represented and did not appear at the hearing; his widow, SENOVIA \nC. PIMENTEL-HERRERA, did not appear at the hearing. \n \nRespondents are represented by JEREMY SWEARINGEN, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  February 29, 2024, a Form AR-C was filed by Mr. Mark Peoples on behalf of Ms. Senovia \nHerrera, alleging that Marcos Herrea suffered a compensable fatal injury on February 12, 2024.   Mr. \nPeoples filed a Motion to Withdraw on April 1, 2024, and was allowed to withdraw on May 3, 2024.  \nNo other attorney entered an appearance on behalf of Ms. Senovia Herrera.     \nOn June 14, 2024, respondent filed a Motion to Dismiss pursuant to Commission Rule 099.13, \nalleging a want of prosecution.  Respondent’s motion alleged that the cause of death was determined \nto be natural/idiopathic.  \nA hearing on respondent’s Motion to Dismiss was scheduled for August 8, 2024.  Notice of \nthe scheduled hearing was sent to claimant’s widow by certified mail at the last known address in the \nCommission’s file.  The notice was delivered to claimant’s widow on June 24, 2024. \nOn June 26, 2024, Ms. Maura Herrera called the Legal Advisor for the Commission on behalf \nof the claimant’s widow and advised that Ms. Senovia Herrera had received notice of the hearing for \n\nHerrera-H401544 \n \n2 \n \nthe Motion to Dismiss and was not going to pursue her claim. Ms. Senovia Herrera did not appear in \nperson at the hearing on August 8, 2024.       \n I find that pursuant to Commission Rule 099.13, this is a meritorious application for dismissal \nfor lack of prosecution, and respondent’s Motion to Dismiss should be and hereby is granted.  This \ndismissal is without prejudice.  \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2256,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401544 MARCOS E. HERRERA (DECEASED), EMPLOYEE CLAIMANT TYSON POULTRY INC., SELF-INSURED EMPLOYER RESPONDENT OPINION/ORDER FILED AUGUST 29, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington County, Arkansas. Claimant is ...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:38.424Z"},{"id":"full_commission-H207039-2024-08-28","awccNumber":"H207039","decisionDate":"2024-08-28","decisionYear":2024,"opinionType":"full_commission","claimantName":"Billy Wright","employerName":"Reynolds Consumer Products","title":"WRIGHT VS. REYNOLDS CONSUMER PRODUCTS AWCC# H207039 August 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Wright_Billy_H207039_20240828.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Wright_Billy_H207039_20240828.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H207039 \n \nBILLY WRIGHT, EMPLOYEE  CLAIMANT \n \nREYNOLDS CONSUMER PRODUCTS, EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT \nSERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED AUGUST 28, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE AARON L. MARTIN, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed March 15, 2024.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2. I hereby accept the above-mentioned proposed stipulations as \nfact. \n \n3. The Claimant failed to establish by medical evidence supported \nby objective findings that he sustained a compensable injury to \n\n \nWRIGHT - H207039  2\n  \n \n \nhis low back on May 20, 2022, while performing his employment \nduties for the respondent-employer.  \n \n4. The remaining issue pertaining to reasonable and necessary \nmedical treatment has been rendered moot and not addressed \nherein this opinion. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's March 15, \n2024 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n     \n \n \n\n \nWRIGHT - H207039  3\n  \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n \n The Administrative Law Judge (hereinafter referred to as “ALJ”) \nfound that Claimant failed to establish by medical evidence supported by \nobjective findings that he sustained a compensable injury to his low back on \nMay 20, 2022, while performing his employment duties for the Respondent-\nEmployer, and that the remaining issue pertaining to reasonable and \nnecessary medical treatment was moot as Claimant did not sustain a \ncompensable injury to his low back.  After my de novo review of the entire \nrecord, I disagree with the ALJ’s findings and would find that Claimant \nproved by a preponderance of the evidence that he sustained a \ncompensable injury to his low back on May 20, 2022, and that he is entitled \nto reasonable and necessary medical treatment as recommended by Dr. \nReza Shahim.  \n1. The Claimant has established by medical evidence supported by \nobjective findings that he sustained a compensable injury to his low \nback on May 20, 2022, while performing his employment duties for \nthe Respondent-employer.  \n \n\n \nWRIGHT - H207039  4\n  \n \n \nTo establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence.  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002).  \nThe Claimant was an employee of the Respondent for more than \neighteen years. On May 20, 2022, he was picking up a 140-pound O-Ring \nplate when he felt a twinge in his left-low back.  As he continued to work, he \nexperienced pain and tingling into his left leg and foot.  Claimant was seen \nby Dr. Mark Larey on June 2, 2022, who provided an initial diagnosis of \nlumbago with sciatica.  Dr. Mark Larey referred the Claimant for an MRI which \nwas completed on June 21, 2022.  After identifying a “large bulging disc L4-\n5,” Dr. Larey referred the Claimant for further evaluation by a neurosurgeon.  \n\n \nWRIGHT - H207039  5\n  \n \n \nOn July 28, 2022, the Claimant was seen by Dr. Reza Shahim who noted the \nfollowing “Impression/Plan:” \nLumbar pain patient had a injury at work where he was lifting \n80 pound object resulting in new onset of back hip and leg \nsymptoms the year before this injury he denies any is now \nhaving radicular pain in the on the left side and L4-5 and L5-S1 \ndistribution.  \nPatient  with  worsening  acute  on  chronic  back  pain  with \nintermittent hip and leg pain.  \nFurther, Dr. Shahim stated that he reviewed the Claimant’s Lumbar MRI in \ndetail which showed “spondylosis with stenosis L4-5 left disc \nsubligamentous disc herniation facet disease annual tear at L5-S1.”  After \nrecognizing the Claimant’s pre-existing degenerative condition, Dr. Shahim \nclearly identifies “a new facet injury of left L4-5 annular tear at L5-S1” which \n“is a work-related injury.”  The Claimant was offered treatment options of \n“spinal decompression surgery” or a more conservative route which \nincluded “injections, medications and physical therapy.”  Physical therapy \nwas initiated on August 3, 2022, and after six sessions the Claimant \nreturned to Dr. Shahim for diagnostic lumbar facet blocks.  The Claimant \nwas seen again by Dr. Shahim approximately two weeks later and the \n“Impression/Plan” was as follows:  \nLumbar pain patient is having chronic radiculopathy on the left \nside this persisted after physical therapy spinal injection he \nhas work-related injury at L4-5.  \n\n \nWRIGHT - H207039  6\n  \n \n \nPatient  with  worsening  acute  on  chronic  back  pain  with \nintermittent hip and leg pain.  \nAfter noting that Claimant had no significant improvement from conservative \ncare, Dr. Shahim recommended surgical treatment including a “redo \ndiscectomy” and the possibility of a future lumbar fusion.  Additional \nphysical therapy was provided, as well as further evaluations by Dr. \nShahim.  On October 12, 2022, Dr. Shahim noted the “combination of facet \nand disc herniation causing severe nerve root compression” which was \n“missed (sic) read by outside radiologist.”  Surgical authorization was \nrequested as a result of this evaluation.  The Claimant was also seen in \nJanuary and March of 2023, at which time his symptoms were once again \ndirectly attributed to his work accident on May 20, 2022, and Dr. Shahim \nstated that he was waiting on authorization to perform surgery on Claimant.  \nThe final note, dated April 3, 2023, indicates that the request for surgical \nauthorization had been met with multiple denials.  \nThe surgery recommended by Dr. Shahim was primarily to address \nnerve root compression at the L4-5 level of the Claimant’s lower back.  Dr. \nShahim related the cause of the injury and symptoms to the Claimant’s \nwork accident.  A review of the MRI’s taken before and after the work \naccident appear to show an objective difference at the L4-5 level of the \n\n \nWRIGHT - H207039  7\n  \n \n \nClaimant’s lower back.  Therefore, the credible evidence suggests that \nClaimant suffered a compensable injury to his low back.  \n2. The Claimant is entitled to reasonable and necessary medical care for \nhis compensable low back injury recommended by Dr. Reza Shahim \nin the form of a discectomy in Claimant’s L4-L5 level of his spine.  \n \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.   Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that he is entitled to additional medical \ntreatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 \n(1999).   What constitutes reasonable and necessary medical treatment is a \nquestion of fact for the Commission.  White Consolidated Indus. v. \nGalloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut Corp. v. \nJones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  \n In the present case, the Claimant has undergone physical therapy, \ninjections and a diagnostic lumbar facet block at the L3-4, L4-5, and L5-S1 \nlevels of his spine.  Each form of treatment provided minimal relief of the \nClaimant’s symptomatic compensable injury to his back.  Dr. Shahim notes \non September 21, 2022, that Claimant has failed conservative management \nof his compensable back injury.  Further Dr. Shahim recommends surgical \n\n \nWRIGHT - H207039  8\n  \n \n \ntreatment in the form of a discectomy at the L4-5 level of Claimant’s spine.  \nTherefore, I would find that the Claimant is entitled to reasonable and \nnecessary medical care for his compensable low back injury in the form of a \ndiscectomy in Claimant’s L4-L5 level of his spine as recommended by Dr. \nShahim.  \nFor the reasons stated above, I respectfully dissent. \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":9645,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H207039 BILLY WRIGHT, EMPLOYEE CLAIMANT REYNOLDS CONSUMER PRODUCTS, EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 28, 2024 Upon review before the FULL COMM...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["back","lumbar","hip"],"fetchedAt":"2026-05-19T22:29:45.189Z"},{"id":"alj-H205851-2024-08-28","awccNumber":"H205851","decisionDate":"2024-08-28","decisionYear":2024,"opinionType":"alj","claimantName":"Gerard Brucker","employerName":"Dredgit Corporation","title":"BRUCKER VS. DREDGIT CORPORATION AWCC# H205851 August 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BRUCKER_GERARD_H205851_20240828.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRUCKER_GERARD_H205851_20240828.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205851 \n \nGERALD A. BRUCKER, EMPLOYEE     CLAIMANT \n \nVS. \n \nDREDGIT CORPORATION, EMPLOYER    RESPONDENT \n \n \nCOMMERCE AND INDUSTRY/AIG,  \nINSURANCE CARRIER, TPA      RESPONDENT \n \n \n \nOPINION FILED AUGUST 28 , 2024 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 16th day of July, \n2024, in Little Rock, Arkansas. \n \nClaimant is Pro Se. \n \nRespondents are represented by Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on the 16\nth\n day of July, 2024.  At the time of the \nhearing, the parties agreed that the issues were as follows: (1) Was the claimant an \n\nBRUCKER – H205851 \n2 \n \nemployee of the respondent at the time of the accident; (2) If the claimant is determined \nto be an employee of the respondent, the compensability of the injury to the claimant’s \nfinger and hand;  (3) If the claimant is found to have suffered a compensable injury, the \nclaimant’s entitlement to reasonable and necessary medical benefits. \n After the hearing, the Commission received an email from the attorney \nrepresenting the respondent’s which provided that the respondents had no objection to \nthe preliminary analysis being a determination of whether or not the Claimant \nestablished the existence of a compensable injury by a preponderance of the credible \nevidence and further stating that if the claimant failed to establish the injury, the \nremaining issues were moot.  The claimant also responded by email stating that \neveryone knows that the injury happened at work.  Copies of both emails are blue \nbacked and attached to the opinion. \nThe respondents contend that there are no objective findings to support a work-\nrelated injury and further that the claimant was not an employee of Dredgit Corporation \nat the time of the injury and was an independent contractor.  Additionally, the \nrespondents contend that the claimant was not performing employment related services \nat the time of the injury in the event the claimant is found to be an employee of the \nrespondent.  The claimant contends that he was injured on October 6, 2021, when his \nring was caught between a battery post while attempting to jump start a booster pump.  \nA Prehearing Order dated May 14, 2024, provided that the parties stipulated that \nthe Arkansas Workers’ Compensation Commission has jurisdiction of the within claim.         \n\nBRUCKER – H205851 \n3 \n \n The Prehearing Order and the claimant’s and respondent’s contentions are all \nset out in their respective responses to the Pre-hearing Questionnaire and made a part \nof the record without objection.  The sole witness was the claimant, Gerad A. Brucker.   \nFrom a review of the record as a whole, to include matters properly before the \nCommission and having had an opportunity to observe the testimony and demeanor of \nthe witness, the following findings of fact and conclusions of law are made in \naccordance with Ark. Code Ann. 11-9-704. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That the claimant has failed to satisfy the required burden of proof to show \nthat he sustained a compensable injury to his left ring finger on October 6, \n2021. \n3. That consequently, all other issues are moot. \n4. If not already paid, the respondents are ordered to pay for the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The Pre-hearing Order along with the Pre-hearing questionnaires of the parties \nand respondents exhibit were made part of the record without objection.  \n The claimant testified that this all started from an accident at work where he was \nworking on a dredging project down by the hydroelectric plant and was hired as a 1099 \nemployee. “Honestly, we wouldn’t even be here if they had just paid for the finger like \n\nBRUCKER – H205851 \n4 \n \nhe’s saying Renae said.”  “They contacted me.  I had worked for them down in Texas \nand did a job down there where they hired me as a 1099 employee.”  He also talked \nabout working for them later and not getting paid and ending up in jail due to all of this.  \nThey should pay for fixing my ring finger on the left hand.  He stated that he was injured \non October 6, 2021, and went to a Med First doctor the first morning.  “The next night I \nfelt like somebody was standing on my chest, and my finger was just pounding and - - \nand I was scared.  I ended up going to the emergency room” where they cleaned my \nfinger again.  He said they checked his heart and he figured out he was in the wrong \nhospital and he should have been across the street at the VA. (Tr. 10 – 12)  He had a \ntiny bill at UAMS and then went on to testify about the IRS and that he was a supervisor \non a job telling people what to do, and was hiring people. (Tr. 15)  He also discussed his \ncompany, Vetrun, LLC, a trucking company, which he no longer operates. (Tr. 16) \n Under cross examination, the claimant admitted that the contract that was \nentered into was between Dredgit and his trucking company, Vetrun.  He also admitted \nthat there were no subcontractors, and he was paid for his hours on site.  He was given \nauthority to charge supplies and tools to Dredgit. (Tr. 18, 19)  He admitted that he would \nshow up to the work site and basically manage the project.  The claimant agreed that \nthe contract entered into was between Dredgit and Vetrun, and that he signed the \ncontract as the President of Vetrun. (Tr. 20, 21)  He also admitted that he had received \nthree 1099’s but had never received a W-2.  The claimant also admitted that he had \nsigned the contract under his authority as the president of Vetrun, and that per the \ncontract, he was signing on as a consultant and an independent contractor, and that \nVetrun received payment per the contract. (Tr. 22 - 24) \n\nBRUCKER – H205851 \n5 \n \n He further stated that he had accidently gone to UAMS instead of the VA for \ntreatment of his finger, and if he had gone to the VA as he had intended, he would not \nhave pursued this claim and that Vetrun had received tax-free payments. (Tr. 25, 26) \nClaimant stated there was no agreement by an employee or Vetrun to waive his right to \ncompensation. \n The claimant went on to testify that Dredgit had hired a number of people as \n1099 employees in Texas and that the company had habitually done this. (Tr. 30)  He \nalso stated that the same 20 things that apply to the IRS also apply to the state of \nArkansas. (Tr. 38) \n The claimant did not submit any medical documents.  The respondent submitted \nan independent contractor agreement between Dredgit Corporation and Consultant \nVetrun LLC, signed by Gerard Brucker, Owner.  (Rep. 1, P. 12)  Numerous Vetrun LLC \ninvoices were also made part of the record.  Some of the invoices stated that they were \nfor Garry Brucker for Sub-Contractor Services.  The AR – C Form filed by the claimant \nstated that the employer of Garrad Brucker was Dredgit Corp., and the accident \noccurred on October 8, 2021.  (Resp. Ex. 1, P. 30)  The records also provided that the \nclaimant had talked to the Legal Advisor Division on multiple occasions. Resp. Ex. 1, P. \n31 – 37) \n \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn the present matter, the claimant testified that he had injured his ring finger on \nhis left hand while in the process of jump starting some equipment.  He further testified \nthat he initially went and got the injury cleaned and then later developed pain and went \n\nBRUCKER – H205851 \n6 \n \nto UAMS, although he intended to go to the VA.  He was not from Little Rock and \nmistakenly went to the wrong hospital.  It was noted that the two hospitals are very \nclose to one another.  No medical records were submitted for the record by the \nclaimant. \nIn regard to the issue of compensability, the claimant has the burden of proving \nby a preponderance of the evidence, that he is entitled to compensation benefits for the \ninjury to his left ring finger.  In determining whether the claimant has sustained his \nburden of proof, the Commission shall weigh the evidence impartially, without giving the \nbenefit of the doubt to either party.  Ark. Code Ann 11-9-704.  Wade v. Mr. \nCavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989).  Further, the Commission has \nthe duty to translate evidence on all issues before it into findings of fact.  Weldon v. \nPierce Brothers Construction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). \nUnder Arkansas Workers’ Compensation law, a compensable injury must be \nestablished by medical evidence supported by objective findings and medical opinions \naddressing compensability and must be stated within a degree of medical certainty. \nSmith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002).  Speculation and \nconjecture cannot substitute for credible evidence.  Liaromatis v. Baxter County \nRegional Hospital, 95 Ark. App. 296, 236 S.W.3d 524 (2006).  More specifically, to \nprove a compensable injury, the claimant must establish by a preponderance of the \nevidence: (1) an injury arising out of and in the course of employment; (2) that the injury \ncaused internal or external harm to the body which required medical services or \nresulted in disability or death; (3) medical evidence supported by objective findings, as \ndefined in A.C.A. 11-9-102 (16) establishing the injury and (4) that the injury was \n\nBRUCKER – H205851 \n7 \n \ncaused by a specific incident and identifiable by time and place of occurrence.  If the \nclaimant fails to establish any of the requirements for establishing the compensability of \nthe claim, compensation must be denied.  Mikel v. Engineered Specialty Plastics, 56 \nArk. App. 126, 938 s.W.2d 876 (1997). \nThe injury for which the claimant seeks benefits must be established by medical \nevidence supported by objective findings which are those findings that cannot come \nunder the voluntary control of the patient. A.C.A. 11-9-102 (16).  It is also important to \nnote that the claimant’s testimony is never considered uncontroverted.  Lambert v. \nGerber Products Co.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  \nHere the only evidence and testimony in regard to the claimant’s injuries comes \nfrom the claimant.  Absolutely no medical evidence was introduced into the record.  The \nclaimant was unable to obtain representation, probably due to multiple reasons.  He \ntestified that he inadvertently had gone to the wrong hospital and if he had gone to the \nVA, he probably would not have filed the claim.  It is clear the claimant strongly feels he \nwas treated unfairly, but there is no alternative but to apply Arkansas law, in regard to \nhis workers’ compensation claim.  Consequently, without giving the benefit of the doubt \nto either party, there is no alternative but to find the claimant has failed to prove by a \npreponderance of the evidence that he suffered a compensable work - related injury \nunder the Arkansas Workers’ Compensation Act.  Consequently, all other issues are \nmoot. If not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \n \n\nBRUCKER – H205851 \n8 \n \nIT IS SO ORDERED.   \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":11285,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205851 GERALD A. BRUCKER, EMPLOYEE CLAIMANT VS. DREDGIT CORPORATION, EMPLOYER RESPONDENT COMMERCE AND INDUSTRY/AIG, INSURANCE CARRIER, TPA RESPONDENT OPINION FILED AUGUST 28 , 2024 Hearing before Administrative Law Judge, James D. Kennedy, on the 16th day ...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:34.190Z"},{"id":"alj-H302397-2024-08-28","awccNumber":"H302397","decisionDate":"2024-08-28","decisionYear":2024,"opinionType":"alj","claimantName":"Joshua Jackson","employerName":"Shearers Foods, LLC","title":"JACKSON VS. SHEARERS FOODS, LLC AWCC# H302397 August 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Jackson_Joshua_H302397_20240828.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jackson_Joshua_H302397_20240828.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H302397 \n \nJOSHUA JACKSON, \nEMPLOYEE                                                                                                              CLAIMANT \n \nSHEARERS FOODS, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nFARMINGTON CASUALTY CO., \nCARRIER                                                                                                             RESPONDENT  \n \nTRAVELERS INDEMNITY CO., \nTPA                                                                                                                        RESPONDENT \n \nOPINION FILED AUGUST 28, 2024 \n \nHearing conducted on Friday, August  23,  2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant represented himself, Pro Se, McCrory, Arkansas.  \n \nThe Respondents were represented by the Honorable Guy Alton Wade, Little Rock, Arkansas. \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on August 23, 2024, in Jonesboro, Arkansas. No testimony was taken in \nthe  case.  Claimant, according to the Commission’s file, is Pro  Se. Admitted  into  evidence was \nRespondent Exhibit 1, Form AR-C, Form AR-2, correspondence, notice, consisting of 11 pages. I \nhave blue-backed Form AR-1, as discussed infra. \nThe record reflects on April 13, 2023, a Form AR-C was filed by then-attorney, Laura Beth \nYork, purporting that Claimant sustained injuries to his head, and left shoulder during the course \nof employment, on February 10, 2023.  On April 19, 2023, a Form AR-1 was filed stating these \ninjuries occurred while adjusting boxes on a pallet and a box fell striking Claimant on the back. \nThe Respondent/Employer was made aware of Claimant’s injuries the same day it occurred, \n\nJACKSON, AWCC No. H302397 \n \n2 \n \nFebruary 10, 2022. The form further states that the Claimant worked as a warehouse worker for \nRespondent/Employer.  On April 19, 2023, Respondents filed a Form AR-2 accepting contusion \ninjuries on his head  and  left shoulder. Claimant’s attorney, Tanner Thomas, who worked in the \nsame firm as Laura Beth York, filed a Motion to Withdraw as Counsel on June 5, 2023. The Motion \nwas granted on June 15, 2023, by the Full Commission. Respondents’ counsel, Guy Alton Wade, \nentered his appearance April 17, 2024, and filed a Motion to Dismiss. The motion alleges a failure \nto  prosecute  by  the  Claimant. Claimant  was  sent notice of  the  Motion  to  Dismiss certified and \nregular First-Class Mail on April 24, 2024, to the address of record. Both the certified and First-\nClass letters were returned to the Commission.  \nThe Claimant was then mailed due and proper legal notice of the hearing date via the United \nStates Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and regular \nFirst-Class Mail on May 23, 2024, to his address of record. The certified notice was not claimed \nby Claimant. The hearing notice sent regular First-Class mail was returned to the Commission with \na  handwritten  address  of 611  First  Street,  Tuckerman,  Arkansas  72473,  not  323  Boyd  Street, \nNewport, Arkansas 72112, the address of record. Out of precaution, a hearing notice was sent to \nthe 611 First Street address via the United States Postal Service (USPS), First Class Certified Mail, \nReturn Receipt Requested, and regular First-Class Mail on June 6, 2024. Again, the notices were \nreturned to the Commission. The hearing took place on August 23, 2024, and the Claimant was \nnot present. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n\nJACKSON, AWCC No. H302397 \n \n3 \n \n \n2. The Claimant and Respondents both had reasonable notice of the August 23, 2024, \nhearing. \n \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.   \n   \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on the Respondents’ Motion to Dismiss. Claimant did not claim the certified \nhearing notice sent to his address of record. However, the hearing notice sent U.S. First-Class mail, \nto  his  address  of  record,  was  not  returned  to  the  Commission.  The  Claimant  is  responsible  for \nkeeping the Commission updated on his current address. Thus, I find by the preponderance of the \nevidence that Claimant received reasonable notice of the Motion to Dismiss hearing.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant filed his Form AR-C on April \n13, 2023. Since then, no bona fide request for a hearing has occurred. Therefore, I do find that the \nRespondents  have  proven by  the  preponderance  of  the  evidence  that  Claimant  has  failed  to \nprosecute his claim. Thus, Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, without prejudice. \n      IT IS SO ORDERED.  \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6061,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H302397 JOSHUA JACKSON, EMPLOYEE CLAIMANT SHEARERS FOODS, LLC, EMPLOYER RESPONDENT FARMINGTON CASUALTY CO., CARRIER RESPONDENT TRAVELERS INDEMNITY CO., TPA RESPONDENT OPINION FILED AUGUST 28, 2024 Hearing conducted on Friday, August 23, 2024, before the Arkan...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:3"],"injuryKeywords":["shoulder","back"],"fetchedAt":"2026-05-19T22:50:36.262Z"},{"id":"alj-H305839-2024-08-27","awccNumber":"H305839","decisionDate":"2024-08-27","decisionYear":2024,"opinionType":"alj","claimantName":"Maria Nochez","employerName":"Raines Hp Workforce, LLC","title":"NOCHEZ VS. RAINES HP WORKFORCE, LLC AWCC# H305839 August 27, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/NOCHEZ_MARIA_D_H305839_20240827.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NOCHEZ_MARIA_D_H305839_20240827.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H305839 \n \nMARIA D. NOCHEZ, EMPLOYEE       CLAIMANT \n \nRAINES HP WORKFORCE, LLC, EMPLOYER          RESPONDENT \n \nZENITH INSURANCE COMPANY, CARRIER/TPA              RESPONDENT \n  \n \n \nOPINION FILED 27 AUGUST 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 7 August 2024 in Little Rock, Arkansas. \n \nThe pro se claimant appeared with the assistance of a Spanish-English interpreter. \n \nLedbetter, Cogbill, Arnold, Harrison, LLP, Ms. Erin Rambo, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 7 August 2024. This case relates to an alleged workplace injury, \nsustained on or about 29 August 2023. A Form AR-C was filed on the claimant’s behalf on 9 \nSeptember 2023, and a Form AR-2 was filed by the respondents on 26 September 2023, \naccepting the claim. \n On 25 January 2024, the claimant’s counsel filed a Motion to Withdraw, stating that \nthe claimant “has recovered from her injury and there are no apparent issues to be \nlitigated.” The Full Commission entered an Order granting that motion on 26 February \n2024. On 3 June 2024, the respondents moved for this claim to be dismissed under ACA § \n11-9-702(a)(4) and under Rule 13. \nThe respondents appeared on 7 August 2024, presented their motion, argued that \nappropriate benefits had been pain and that no hearing had been requested in the \npreceding six months, and offered supporting evidence into the record. As argued by the \n\nM. NOCHEZ- H305839 \n2 \n \nrespondents at the hearing, the file reflects no request for a hearing on a claim in the \nrelevant time preceding the filing of their motion.  \nThe claimant appeared with the benefit of a Spanish-English interpreter. She stated \nthat she did not object to the dismissal, as benefits had been paid, and she acknowledged \nthe statement from her former attorney that there were no issues to litigate. She noted, \nhowever, that she was unsure of one medical bill she recently received. The parties \ndiscussed that bill being provided to the respondent’s counsel for resolution if it was in fact \nrelated to the accepted claim. I advised that unless I received notice from the claimant that \nshe required a hearing on a matter in controversy, I would grant the dismissal of the claim \ntwo weeks after the date of the hearing. My office has received no notice from the claimant \nregarding the need to conduct a hearing on the medical bill mentioned or any other issue. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel \nand the acknowledgements of the claimant, I find that the respondents’ Motion to Dismiss \nshould be granted and that the matter should be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3328,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H305839 MARIA D. NOCHEZ, EMPLOYEE CLAIMANT RAINES HP WORKFORCE, LLC, EMPLOYER RESPONDENT ZENITH INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED 27 AUGUST 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:32.117Z"},{"id":"alj-H300194-2024-08-22","awccNumber":"H300194","decisionDate":"2024-08-22","decisionYear":2024,"opinionType":"alj","claimantName":"Tammy Craig","employerName":"Hino Motors Mfg. USA, Inc","title":"CRAIG VS. HINO MOTORS MFG. USA, INC. AWCC# H300194 August 22, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Craig_Tammy_H300194_20240822.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Craig_Tammy_H300194_20240822.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300194 \n \n \nTAMMY T. CRAIG, EMPLOYEE CLAIMANT \n \nHINO MOTORS MFG. USA, INC., \nEMPLOYER RESPONDENT NO. 1 \n \nFIRST LIBERTY INS. CORP., \nCARRIER RESPONDENT NO. 1 \n \nARROW WORKFORCE SOLUTIONS, \nUNINSURED EMPLOYER RESPONDENT NO. 2 \n \n \n \nOPINION FILED AUGUST 22, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on August 22, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents No. 1 represented by Mr. Zachary F. Ryburn, Attorney at Law, Little \nRock, Arkansas. \n \nRespondent No.  2, represented  by  Mr. R.  Scott  Zuerker,  Attorney  at  Law, Fort \nSmith, Arkansas, not appearing. \n \n \nI.  BACKGROUND \n This    matter    comes    before    the Arkansas  Workers’  Compensation \nCommission (the “Commission”) on a Motion to Dismiss by Respondents No. 1.  A \nhearing  on  the  motion  was  conducted  on August  22,  2024, in Little  Rock, \nArkansas.  No testimony was taken in the case.  Claimant failed to appear at the \nhearing; she  notified  the  Commission  that  she  was  waiving  her appearance see \ninfra).  Admitted  into  evidence  were  Commission  Exhibit  1  and Respondents’ \n\nCRAIG – H300194 \n \n2 \n \n \nExhibit 1—forms, pleadings and correspondence related to the claim—consisting \nof 42 pages and one page, respectively. \n The evidentiary record reflects the following procedural history: \n Per  the Form  AR-C filed on January 10,  2023,  Claimant allegedly injured \nherself at  work  on  July 11,  2022,  when she slipped  and  fell  while  loading  the \ncarrier  cases  machine  at  Respondent  Hino.   Counsel  for  Respondent  No.  1 \nentered  his  appearance  on  January  16,  2023.   According  to the  Form  AR-2 that \nwas filed on January 24, 2023, Respondents No. 1 controverted the claim on the \nground  that  Claimant  was  not  employed  by  Respondent  Hino.  Thereafter,  on \nFebruary  21,  2023,  Claimant  failed another  Form  AR-C,  this  time  naming  the \nemployer  as  Canadian  Executive  Search  Group/Arrow  Workforce  Solutions—\nRespondent No. 2—which was uninsured for workers’ compensation purposes as \nof the alleged date of injury. \n The  file  was  assigned  to  the  Legal  Advisor  Division of  the  Commission.  \nHowever, because   attempts   to   set   up   a   mediation   conference   had   failed \n(apparently between Claimant and Respondent No. 2), the file was returned to the \nClerk of the Commission on May 15, 2023.  The file was reassigned to my office \non  May  16,  2023.    Because  of  the  uncertainly  surrounding  who  the  named \nrespondents should be, prehearing questionnaires were not issued to the parties \nuntil  June  14,  2023.    When  this  occurred,  they  went  to  Claimant  and  to \n\nCRAIG – H300194 \n \n3 \n \n \nRespondent  No.  2  only.   Claimant  filed  a  timely  response  thereto  on  June  23, \n2023. \n When  no  response  by  Respondent  No.  2  was  forthcoming,  my  office \ncontacted counsel for Respondents No. 1.  He explained that his clients were not \nthe   proper   party   to   the   claim   because   Claimant   was   actually   working   for \nRespondent No. 2.  Counsel for Respondents No. 1 followed up on this by moving \nfor dismissal of his clients from this claim on August 1, 2023.  I took no action on \nthe motion.    Instead,  I  notified  counsel  for  Respondents  No. 1  that  because  of a \npotential  dual  employment  issue  in  the  matter,  I  was  sending  them  a  prehearing \nquestionnaire  as  well.    They  filed  a  timely  response  thereto  on  September  7, \n2023.    On  September  20,  2023,  I  wrote  Respondent  No.  2,  giving  them  until \nOctober  11,  2023,  to  file  a  prehearing  questionnaire  response  to  avoid  being \npenalized.  On October 10, 2023, counsel for Respondent No. 2 made his entry of \nappearance.   The  next  day,  he  filed  a  prehearing  questionnaire  response  by  the \nabove deadline. \n At the request of all the parties, on October 11, 2023, I asked that the file \nbe  reassigned  to  the  Legal  Advisor  Division  to  conduct  a  mediation.   The \nmediation  eventually  took  place  on  July  9,  2024.    Unfortunately,  the  matter  was \nnot  resolved  as  a  result  of  that  mediation.    The  next  day,  the  Legal  Advisor \nDivision asked that the file be reassigned back to my office.  This occurred on July \n11, 2024. \n\nCRAIG – H300194 \n \n4 \n \n \n On July 10, 2024, counsel for Respondents No. 1 filed what was termed a \n“Renewed Motion to Dismiss.”  Therein, he alleged that Claimant agreed with his \nclients  that  there  was  no  employment  relationship  between  her  and  Respondent \nHino Motors.  On July 16, 2024, my office wrote Claimant, requesting a response \nto the motion within 20 days.  The letter was sent to her by certified and first-class \nmail  at  the  address  for  her  listed  in  the  file  and  on  her  Forms  AR-C.    Claimant \nsigned  for  the certified  letter  on  July  22,  2024;  and  the  first-class  letter  was  not \nreturned.    Claimant  telephoned  my  office  to  state  that  she  had  no  objection  to \nRespondents  No.  1  being  dismissed  from  the  claim;  and  she  restated  this  in  an \nemail on August 13, 2024. \n The next day, Claimant emailed my office to state that she was waiving her \nappearance  at  the  hearing  on  the  Motion  to  Dismiss.    Because  of  this  waiver,  I \nissued a Notice of Hearing on August 14, 2024, which scheduled a hearing on the \nMotion  to  Dismiss  for August  22,  2024,  at  9:30  a.m.  at  the  Commission  in  Little \nRock.  This was sent to Claimant not only by first-class and certified mail, but was \nemailed to her as well.  To date, the notice has not been returned. \n The  hearing  on  the motion  proceeded  as  scheduled  on August  22,  2024.  \nAgain, Claimant did  not  appear.  Counsel  for  Respondent  No.  2  waived  his \nappearance  as  well.   But Respondents No.  1 appeared  through  counsel  and \nargued for dismissal under, inter alia, AWCC R. 099.13. \n\nCRAIG – H300194 \n \n5 \n \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim against Respondents No. 1 under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim—i.e.,  the \nJanuary   10,   2023,   Form   AR-C—is hereby   dismissed without \nprejudice against Respondents No. 1 under AWCC R. 099.13. \n5. The February 21, 2023, Form AR-C, which names Respondent No. \n2 as the respondent employer, remains in full force and effect. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \n\nCRAIG – H300194 \n \n6 \n \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As  the  moving  party,  Respondents No.  1 under  Ark.  Code  Ann.  §  11-9-\n705(a)(3)  (Repl.  2012)  must  prove  their  entitlement  to  the  relief  requested–\ndismissal of this claim–by a preponderance of the evidence.  This standard means \nthe  evidence  having  greater  weight  or  convincing  force.  Barre  v. Hoffman,  2009 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491, \n206 S.W.2d 442 (1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant  has  failed  to  pursue  the  claim (i.e.,  the  January  10,  2023,  Form  AR-C) \nbecause she has  taken  no  further  action  in  pursuit  of  it—including  appearing  at \nthe August 22, 2024, hearing on the Motion to Dismiss—since its reassignment to \nme  after  the  unsuccessful  mediation.    Moreover,  she  has  clearly  indicated  that \nshe  has no  intention  of  pursuing  it  further  by  (1) communicating  that  she did  not \nobject to dismissal of it, and (2) waiving her opportunity to appear at the hearing \non the Motion to Dismiss in order to oppose it.  Thus, the evidence preponderates \nthat  dismissal of  this  particular  claim and  Respondents  No. 1 is  warranted  under \nRule 13. \n That leaves the question of whether the dismissal should be with or without \nprejudice.    The  Commission  possesses  the  authority  to  dismiss  claims  with \n\nCRAIG – H300194 \n \n7 \n \n \nprejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App.  137,  744 \nS.W.2d 402 (1988).  The Commission and the Appellate Courts have expressed a \npreference for dismissals without prejudice.  See Professional Adjustment Bureau \nv.  Strong,  75  Ark.  249,  629  S.W.2d  284  (1982)).  Respondents No.  1 at  the \nhearing  asked  for  a  dismissal  without prejudice.    I agree  and  find  that  the \ndismissal of this claim should be and hereby is entered without prejudice. \n The  February  21,  2023,  Form  AR-C,  on  the  other  hand—which  names \nRespondent No. 2 as the respondent employer—remains in full force and effect. \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim—to-wit, the January 10, 2023, Form AR-C—is hereby dismissed \nwithout prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":10053,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H300194 TAMMY T. CRAIG, EMPLOYEE CLAIMANT HINO MOTORS MFG. USA, INC., EMPLOYER RESPONDENT NO. 1 FIRST LIBERTY INS. CORP., CARRIER RESPONDENT NO. 1 ARROW WORKFORCE SOLUTIONS, UNINSURED EMPLOYER RESPONDENT NO. 2 OPINION FILED AUGUST 22, 2024 Hearing before Admi...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:50:23.745Z"},{"id":"alj-H207576-2024-08-22","awccNumber":"H207576","decisionDate":"2024-08-22","decisionYear":2024,"opinionType":"alj","claimantName":"Willie Hinton","employerName":"B H I Energy Inc","title":"HINTON VS. B H I ENERGY INC. AWCC# H207576 August 22, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HINTON_WILLIE_H207576_20240822.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HINTON_WILLIE_H207576_20240822.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H207576 \nWILLIE HINTON, EMPLOYEE CLAIMANT \n \nB H I ENERGY INC., EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER RESPONDENT \n \n OPINION FILED AUGUST 22, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope \nCounty, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents represented by Michael E. Ryburn, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On July 31, 2024, the above captioned claim came on for a hearing at Russellville, Arkansas. \nA pre-hearing conference was conducted on June 6, 2024, and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.  All prior Opinions are res judicata. \n            3.  The employee/employer/carrier relationship existed on or about October 10, 2022.  \n            At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Whether claimant is entitled to temporary total disability benefits from December 20, 2023  \n               to a date to be determined. \n            2.  Whether claimant is entitled to additional medical benefits. \n\nHinton-H207576 \n2 \n \n            3.  Whether claimant is entitled to reimbursement of past medical benefits. \n           4.  Whether claimant is entitled to payment of unpaid medical from last Order. \n All other issues are reserved by the parties. \n The   claimant   contends that  “He worked   night   shift   10/10/22   6pm-6am.   Was   off \nloading/staging camera/communication equipment was near end of shift. Felt a pull-on right hand. \nCompleted shift. Told coworker (James Patrick) what happened, left work. Woke 1 ½ hours later with \nswollen arm/wrist/fingers. Called Bob Dow and reported accident at that time.” \n The respondents contend that “The healing period ended February 22, 2023. That issue is res \njudicata as it was decided in the previous hearing. There is no proof of a new condition or a new reason \nfor additional temporary total disability. Additional medical treatment is not reasonable or necessary \nand has not been identified by any physician.” \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.  The stipulations agreed to by the parties at the pre-hearing conference conducted on June \n6, 2024 and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2. Claimant has met his burden of proof by a preponderance of evidence that he is entitled to \ntemporary total disability benefits beginning December 20, 2023. \n 3. Claimant has met his burden of proof by a preponderance of evidence that he is entitled to \nbe reimbursed for medical expenses incurred since the date of the previous opinion that are related to \nhis  compensable  right  arm  injury,  both  those  that  he  paid  out  of  pocket  and  those  that  are  still \n\nHinton-H207576 \n3 \n \n \noutstanding upon presentation to respondent of an itemized statement.   \n 4.  Claimant is not entitled to his travel expenses to and from the hearing of this matter.  \n \n FACTUAL BACKGROUND \n This is the second hearing on this claim.  As recited above, the opinion issued on September \n29, 2023, is res judicata.  Because it will be referred to in the adjudication section of this opinion, it is \nblue backed to the record in this case.   \nHEARING TESTIMONY \n \n Claimant testified that he worked for respondent BHI Energy Inc. until December 15, 2023, \nwhen his previous injury “regenerated itself and swelling even to the capacity of I couldn’t deal with \nit,  so  I  asked  for  medical attention, and it was denied.”  He sought temporary total disability from \nDecember 20, 2023, to a date to be determined because his doctor removed him from work at that \ntime and he has not been released to return. He requested reimbursement for out-of-pocket expenses, \npayment for unpaid medical bills related to his injury, an award of future medical benefits, as well as \nexpenses associated with coming to court.  \n When questioned on whether a particular incident happened on December 15, 2023, claimant \nsaid he couldn’t pinpoint anything specific but that it flared back up.   \n On cross-examination, claimant testified that he had not worked for any employer other than \nrespondent BHI since the last hearing.  He explained that his work for that company was not a straight \nforty hours a week but was rather on location as a nuclear refueling technician.  Claimant also stated \nthat on December 15, 2023, the job he was working for respondent BHI had ended. After December \n15, 2023, claimant received a call back for the remaining portion of the job and did not return because \nof the situation he was in. Claimant stated that while he was released to return to work in February \n2023, he was still injured and that what he was complaining of at the present hearing was the same \n\nHinton-H207576 \n4 \n \n \ninjury. Claimant was questioned about his medical treatment from February 2023 until the date of the \nhearing, and that portion of the evidence will be covered in a review of those exhibits. \n When asked if claimant was asking that respondents be ordered to send him to a doctor, he \nstated that he did not want that because he had to choose doctors in order to be treated due to the \ndenial of care from respondent Sedgwick.  Claimant conceded that he did not submit his carrier with \na 6-UB or a HCFA Form. \n After the close of testimony, claimant made closing remarks which it was his position that he \nshould have been sent to medical providers for his injury. In its closing comments, respondent made \nit  clear  that  it  was  relying  on  the  previous  decision  of  this  Court  that  said  the  healing  period  for \ntemporary total disability benefits ended and that nothing in the medical evidence would change the \nend of the healing period. \nREVIEW OF THE MEDICAL RECORDS \n \n Claimant submitted the June 20, 2023, record from Dr. John Wing which was summarized in \nthe previous Opinion. Because it is brief and germane to the issues in this case, it reads as follows: \n“Mr.  Willie  Hinton  is  currently  a  patient  at  the  Hampton  Veteran’s \nAdministration Medical Center. Mr. Hinton has been followed for a right wrist \ninjury since October 11, 2022. He was given a rest cure along with a Cortisone \nshot. MRI  indicated  diffuse  synovitis  along  with  a  tear  in  the  bolar band  of \nscapholunate ligament. Mr. Hinton was released to work on February 22, 2023. \nPatient continues to have right wrist pain and stiffness; treatment is pending \northopedic reevaluation.  Any consideration you might give this veteran would \nbe greatly appreciated.” \n \n On  December  20, 2023, Dr.  Wing  issued  another  short  statement  regarding  claimant’s \ncondition: \n“Mr. Willie Hinton is currently a patient of Hampton Veteran’s Administration \nMedical Center. Mr. Hinton continues to be unable to work due to a right wrist \ninjury  and  is  advised  not  to  work  until  further  treatment  is  given. Any \nconsideration you can give this veteran would be greatly appreciated.”  \n \n\nHinton-H207576 \n5 \n \n \n Claimant  was  next  seen  by  Dr.  Jude  Kotsko  on  January  2,  2024  at  the  Riverside  Regional \nMedical Center Emergency Room.  The chief complaint was “patient is coming in with a right arm \npain history. The same is currently on workers’ compensation for a torn ligament in the right arm. \nExacerbated with  movement,  no  alleviation,  this  is  a  chronic  injury. He  is  wanting  something  for \npain.”  He was released back to his primary care physician and his workers’ compensation physician. \n On  February  5, 2024, claimant’s right hand was x-rayed at  the request  of Dr.  Andrea  Lese.  \nThe report showed “no acute osteo abnormality. Mild to moderate osteoarthritic change in the first \nCMC joint. No significant soft tissue findings.”  The next day, he was seen by Dr. Lese. Claimant gave \na history of his current condition, and Dr. Lese performed a physical examination in which she noted:  \n“Right wrist and forearm; there is dorsal swelling. There is tenderness over \nthe swelling dorsal wrist and forearm with tenderness. Pain with resisted wrist \nextension. Tenderness  over  the  distal  radius,  SL  interval,  snuff  box,  ECU. \nThere   is   pitting   and   nodules   over   the   right   palm   consistent   with \nDupuytren’s.”  \n \n Dr. Lese’s assessment and plan was a right wrist and forearm tenosynovitis for which she did \nnot  have  a  surgical  solution. Dr.  Lese  thought  claimant  might  have  a  seronegative  systemic \ninflammatory condition. She referred claimant to physical therapy.  \n Claimant  began  physical  therapy  on  February  9,  2024, at  Riverside  Outpatient  Therapy.  \nTherapist Elizabeth Gray noted swelling to claimant’s right hand; she also recorded that claimant’s \nright hand was warm to touch and may have a slight red color. (Claimant is African American, which \nwould make discoloration harder to determine.) \n Claimant continued with physical therapy throughout the remainder of February through May \n3,  2024. At  that  last  session,  claimant  stated  his  wrist was  not  better; nonetheless, Occupational \nTherapist Steve Hermann recommended that he continue with physical therapy. \n On May 23, 2024, claimant returned to Dr. Lese upon the referral by Occupational Therapist \n\nHinton-H207576 \n6 \n \n \nHermann. Claimant reported that while he was taking physical therapy, he felt some soothing of the \npain in his wrist during the treatment, but the pain in his dorsal wrist radiating up the forearm returned \nafter his therapy session. There was minimal swelling noted in the right wrist and forearm. Dr. Lese \nagain stated that she did not have a surgical answer to his issue. \n Claimant  was  seen  by Dr.  Stephanie  Giammittorio  at  Riverside Orthopedic and  Sports \nMedicine on June 11, 2024.  (This physician is referred to as Dr. G during the hearing.) The objective \nfindings on the physical examination were that claimant had tenderness in his right hand at the radial \ncarpal  joint,  first  dorsal  compartment. Claimant’s range of motion with extension and flexion was \nnormal with pain, and it was noted that he had normal right wrist strength.  Dr. Giammittorio noted \nthat claimant had a negative Tinel’s sign, and a positive Finkelstein’s test. The Watson’s test was also \npositive and the TFCC grind was negative. Dr. Giammittorio recommended rest, ice, compression, \nand  elevation  therapy, and  prescribed claimant  a  brace  to  provide stabilization  to help  improve  his \nfunction. She ordered an EMG and scheduled a follow up after that test was performed. Claimant’s \nright forearm was x-rayed again on June 11, 2024, with a report as follows:  \n“There is no new fracture, dislocation or sublocation. There is no bone lesion \nor periosteal reaction. Soft tissue is unremarkable.”  \n  \nThe impression was “normal study.”  \nADJUDICATION \n \n Claimant has four separate components of the claims that he presented at his hearing.  These \nwill be addressed individually below.  \n     1.  Is claimant entitled to additional medical treatment for his compensable injury?  \n Claimant testified that in December, 2023, his request for additional medical treatment for his  \ncompensable  injury  was  denied.  Respondents’ position was that since it was determined in  the \nprevious  order  of  this  court that  claimant  had  reached  the  end  of  his  healing  period,  no  further \n\nHinton-H207576 \n7 \n \n \ntreatment was reasonable and necessary.  In discussing the temporary total disability (TTD) portion \nof this claim, there was the following ruling in the September 29, 2023, opinion: \n A  claimant  who  suffers  a  scheduled  injury  is  entitled  to  temporary  total \ndisability benefits until they reach the end of their healing period or until they \nreturn to work, whichever occurs first. Wheeler Construction Co. v. Armstrong, 73 \nArk.  App.  146,  41  S.W.  3d  822  (2001).  Dr.  Wing's  records  support  the \ncontention that claimant had not reached the end of his healing period until \nFebruary 22, 2023, and I am satisfied that it began on October 11, 2022.   \n \n Reviewing again what Dr. Wing said in his June 20, 2023, report, I am convinced I awarded \nthe  appropriate  amount  of TTD  but should  have  said  it  ended because claimant  returned  to  work \nrather than how it was phrased.\n1\n   Regardless, though, the next paragraph of that order addressed past \nmedical expenses, concluding with this sentence: \n“Claimant  is  entitled  to  be  reimbursed  for  any  payments  he  made  toward \ntreatment of his compensable injury, and for any future treatment as may be \nreasonable and necessary.”   \n \n Dr. Wing was clear in June, 2023 that claimant would likely need additional medical treatment.   \nClaimant’s testimony was that his injury “regenerated itself and swelling even to the capacity of...I \ncouldn’t deal with it, so I asked for additional medical attention and like I say, it was denied.”   I find \nthe  claimant  to  be  a  credible  witness  that medical  treatment  for  his  compensable  injury is again \nnecessary.  “Once it has been established that a claimant has sustained a compensable injury, he is not \nrequired to offer objective medical evidence to prove entitlement to additional benefits, Ark. Health \nCtr. v. Burnett, 2018 Ark. App. 427, at 9, 558 S.W.3d 408, 414. As I had already ruled that claimant had \nobjective evidence to support his initial claim, it was unnecessary for him to provide new objective \nfindings  for  the  treatment  he  sought  at  this  hearing.\n2\n I  find  he  reentered his  healing  period  on \n \n1\n While  I  recognize  my  mistake  in  the  wording  of  that  opinion, res  judicata prevents  me from  correcting  it  at  this \npoint.  \n2\n This is not to say the records claimant presented lacked objective medical findings; Dr. Lese noted swelling among \nher findings, some of which were subjective in nature.  \n\nHinton-H207576 \n8 \n \n \nDecember  20,  2023,  and  respondent has failed  to  provide  him  with  the reasonable  and  necessary \nmedical services to which he was entitled under Ark. Code. Ann.§11-9-508.   \n2.  Is claimant entitled to temporary total disability from December 20, 2023 until a date to be \ndetermined?  \n“The  healing  period  is  that  period  for  healing  of  the  injury  which  continues \nuntil the employee is as far restored as the permanent character of the injury \nwill permit. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). \nIf the underlying condition causing the disability has become more stable and \nif  nothing  further  in  the  way  of  treatment  will  improve  that  condition,  the \nhealing period has ended. Id.” \n \nBecause  respondent  refused  to  provide  medical  services,  claimant has  been  forced  to  seek \ntreatment at his own expense. Thus, there were not extensive medical reports available.  However, \nbased on the medical records that were introduced, I see nothing to indicate that claimant has reached \nthe end of this current healing period, and I am also convinced that he has not returned to work. It \nwould be to the respondents’ advantage to expedite  the  medical  treatment  rather  than  resisting  it, \nbecause until claimant returns to work or reaches the end of this healing period, he is entitled to TTD, \nwhich is at the maximum rate as per §11-9-518(a)(1) and the previous opinion.  \n 3.  Is claimant entitled to reimbursement for out-of-pocket medical expenses and for payment \nof unpaid expenses?  \n Commission Rule 099.30, Part 1, Section J, states the following: \n“Reimbursement  for  Employee-Paid  Services. Notwithstanding any  other  provision \nof this rule, if an employee has personally paid for a health care service and at a later \ndate a carrier is determined to be responsible for the payment, then the employee shall \nbe fully reimbursed by the carrier.” \n \n Claimant provided both statements of medical bills that he had paid and invoices for unpaid \nservices, and respondent is responsible for any expenses for medical treatment claimant has sought \nsince December 20, 2023. Except as noted below, the exhibits appear to correspond to the medical \n\nHinton-H207576 \n9 \n \n \nrecords introduced by claimant. However, I believe it would be reasonable for respondents to obtain \nitemized statements from the providers before making payments to those providers or reimbursement \nto claimant.  Claimant is directed to provide those itemized statements to respondent, and respondent \nwill have 10 days after receipt to address these expenses.  \n Claimant said there were charges that were covered by my previous order that had not been \npaid.    All  I  saw  in  his  exhibit  was  a statement  of  account  from  Hampton  Roads  Ortho  Spine  and \nSports Med for visits on September 26 and 27, 2023, which took place between the first hearing of \nthis  matter  and  the  date  of  the  opinion. I  do  not  see  any  corresponding  medical  records  for  this \ntreatment. Without those records, I have no evidence that claimant had reentered his healing period \nduring this time; consistent with my finding above that claimant’s evidence shows he reentered his \nhealing period on December 20, 2023, I find he is not entitled to reimbursement for charges before \nthat date.   \n 4.   Is claimant entitled to reimbursement for his expenses in traveling to the hearing?  \n \nClaimant sought reimbursement for his expenses of traveling to the hearing. Commission \nAdvisory Opinion 89-2 addresses such claims:  \nMileage Reimbursement Rates \nThe  Arkansas  Workers’  Compensation  Commission  (AWCC)  approves \nmileage reimbursement rates as medical expenses related to an injury or illness \nout of and in the course of employment. \n \n For actual miles driven to and from medical providers on and after May 18, \n2022, the reimbursement rate will be a floating rate which corresponds with \nthe rate Arkansas State employees are authorized for mileage reimbursement. \n \n As of May 19, 2022, the current rate paid to Arkansas state employees by the \nState of Arkansas for mileage reimbursement is 52¢ ($0.52) per mile. \n \nTravel must be as a result of job-related injuries and meet all reasonableness \nrequirements established by law, the AWCC, and the courts. \n \n\nHinton-H207576 \n10 \n \n \n I see nothing in this advisory opinion that allows for reimbursement for any travel expenses \nother than to and from doctor’s appointments, nor was I able to locate any statute, Commission Rule \nor court opinion that allows for such reimbursement. Therefore, this portion of this claim is denied.  \n \nORDER \n \n Respondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \n All accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \n Respondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $533.15. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":19946,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207576 WILLIE HINTON, EMPLOYEE CLAIMANT B H I ENERGY INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER RESPONDENT OPINION FILED AUGUST 22, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope County, A...","outcome":"granted","outcomeKeywords":["granted:2","denied:2"],"injuryKeywords":["wrist","back","fracture"],"fetchedAt":"2026-05-19T22:50:25.817Z"},{"id":"alj-H304971-2024-08-22","awccNumber":"H304971","decisionDate":"2024-08-22","decisionYear":2024,"opinionType":"alj","claimantName":"Waylon Johnson","employerName":"Hale Trailer Brake & Wheel, Inc","title":"JOHNSON VS. HALE TRAILER BRAKE & WHEEL, INC. AWCC# H304971 August 22, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/JOHNSON_WAYLON_H304971_20240822.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_WAYLON_H304971_20240822.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H304971 \n \nWAYLON D. JOHNSON,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nHALE TRAILER BRAKE & WHEEL, INC.,  \nEMPLOYER                                                                                                         RESPONDENT  \n \nZURICH AMERICAN INS. CO./ \nGALLAGHER BASSETT SERVICES, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \n \nORDER TO DISMISS WITHOUT PREJUDICE \nFILED AUGUST 22, 2024 \n \nHearing conducted on Wednesday, August 20, 2024, before the Arkansas Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, \nin Little Rock, Pulaski County, Arkansas. \n \nThe claimant, Mr. Waylon D. Johnson, pro se, of North Little Rock, Pulaski County, Arkansas, \nfailed and/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable David C. Jones, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n          A hearing was conducted on Wednesday, August 20, 2024, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024) \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n        On June 18, 2024, the respondents filed with the Commission a motion to dismiss this claim \nwithout prejudice and brief in support of their motion (MTD) based on the aforementioned statute \nand Commission rule. (Respondents’ Exhibits 1 and 2). Pursuant to the applicable law the claimant \nwas provided due and legal notice of both the respondents’ MTD, as well as notice of the subject \n\nWaylon D. Johnson, AWCC No. H304971 \n2 \n \nhearing to his last known of address on record with the Commission via the United States Postal \nService (USPS), Certified Mail, Return Receipt Requested, which the claimant received on June \n22, 2024. (Commission Exhibit 1). Thereafter, the claimant failed and/or refused to respond to the \nsubject MTD, and he failed and/or refused to appear at the subject hearing.  \n        It  should  be  noted  the  claimant  previously  had  been  represented  by  attorney  Mark  Alan \nPeoples;  however,  by  Full  Commission  order  filed  February  8,  2024,  the  Full  Commission \nunanimously granted Attorney Peoples’s motion to withdraw as the claimant’s attorney. (RX1 at \n2).  \n        I hereby incorporate by reference the facts contained in the respondents’ MTD as set forth \nword-for-word herein. (RX1 & 2). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has to date failed and/or refused to prosecute his claim at this time. \n        Therefore, after a thorough consideration of the applicable law as applied to the facts of this \nclaim, the issues, and other relevant matters of record, as well as the representations of credible \ncounsel I hereby make the following: \n\nWaylon D. Johnson, AWCC No. H304971 \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n      1. The Commission has jurisdiction of this claim. \n \n 2. After the Commission mailed due and legal notice of the respondents’ MTD \n                  filed June 18, 2024, to the claimant’s last known address of record with the \n                  Commission, the claimant failed and/or refused to respond to the motion in any \n                  way; failed and/or refused to object to the subject MTD; and failed and/or refused \n                  to request a hearing on his subject claim. \n \n            3.         The claimant failed and/or refused to appear at the subject hearing and, therefore, \n                        has waived his right to a hearing on the respondents’ subject MTD. \n \n      4.         The claimant has failed to request a hearing on this claim within the last six (6) \n                   months.  \n \n 5. The respondents’ MTD without prejudice filed with the Commission on June 18, \n                  2024, should be and hereby is GRANTED. \n      \n      6.          Therefore, this claim hereby is dismissed without prejudice subject to the applicable \n                 deadline(s) prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission \n                 Rule 099.13. \n \n \n        This opinion shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling this claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n       The respondents shall pay the court reporter’s invoice within twenty (20) days of their receipt \nthereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \nMP/mp \n\nWaylon D. Johnson, AWCC No. H304971 \n4 \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":6012,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304971 WAYLON D. JOHNSON, EMPLOYEE CLAIMANT HALE TRAILER BRAKE & WHEEL, INC., EMPLOYER RESPONDENT ZURICH AMERICAN INS. CO./ GALLAGHER BASSETT SERVICES, INC. CARRIER/TPA RESPONDENT ORDER TO DISMISS WITHOUT PREJUDICE FILED AUGUST 22, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:27.884Z"},{"id":"alj-H302018-2024-08-22","awccNumber":"H302018","decisionDate":"2024-08-22","decisionYear":2024,"opinionType":"alj","claimantName":"Vincent Williams","employerName":"Highland Dairy Foods Co., LLC","title":"WILLIAMS VS. HIGHLAND DAIRY FOODS CO., LLC AWCC# H302018 August 22, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILLIAMS_VINCENT_H302018_20240822.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILLIAMS_VINCENT_H302018_20240822.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H302018 \n \nVINCENT WILLIAMS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nHIGHLAND DAIRY FOODS CO., LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nCCMSI \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE  \nFILED AUGUST 22, 2024 \n \nHearing conducted on Wednesday, August 21, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe  claimant,  Mr. Vincent  Williams,  pro  se,  of Little  Rock,  Pulaski County,  Arkansas,  failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Eric Newkirk, Newkirk & Jones, Little Rock, \nPulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A  hearing was  conducted  on Wednesday,  August 21, 2024, to  determine  whether this \nclaim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) \n(2024 Lexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n The respondents filed a motion to dismiss without prejudice and brief in support thereof \n(MTD) with  the  Commission on June 24,  2024, requesting this  claim be  dismissed without \nprejudice for  lack  of  prosecution. Consistent  with  the  applicable  Arkansas  law the Commission \nmailed a copy of both the respondents’ MTD, and the subject hearing notice via the United States \nPostal  Service  (USPS),  Certified  Mail,  Return  Receipt  Requested, to the claimant’s last  known \n\nVincent Williams, AWCC No. H302018 \n \n2 \n \naddress of record with the Commission which the claimant received on July 2, 2024. (Commission \nExhibits 1 and 2; Respondents’ Exhibit 1). Thereafter, the claimant failed and/or refused to respond \nin any way to either the Commission or to the respondents; and he failed and/or refused to appear \nat the subject hearing. The claimant never objected in any way to the respondents’ MTD. \n          It should be noted the claimant was represented by counsel, Mark Alan Peoples, at the time \nthis claim was filed  on  his  behalf;  however,  by order  filed November  13,  2024, the  Full \nCommission granted Attorney Peoples’s motion to withdraw. (RX1 at 24).  \n          I hereby incorporate the facts stated in the respondents’ MTD filed June 24, 2024, as though \nthey were set forth word-for-word herein. (RX1 at 1-8).  \n          The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2024 Lexis Replacement), as well as \nour court of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 \nS.W.3d  287  (Ark.  App.  2004),  the Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \ndemonstrates the claimant has both failed and/or refused to prosecute this claim, and he has failed \nand/or refused to request a hearing within the last six (6) months on his claim. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \n \n \n\nVincent Williams, AWCC No. H302018 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After the Commission mailed due and legal notice of the respondents’ MTD \n                  filed June 24, 2024, to the claimant’s last known address of record with the \n                  Commission, the claimant failed and/or refused to respond to the motion in any \n                  way; failed and/or refused to object to the subject MTD; and failed and/or refused \n                  to request a hearing on his subject claim. \n \n            3.         The claimant failed and/or refused to appear at the subject hearing and, therefore, \n                        has waived his right to a hearing on the respondents’ subject MTD. \n \n      4.         The claimant has failed to request a hearing on this claim within the last six (6) \n                   months.  \n \n 5. The respondents’ MTD without prejudice filed with the Commission on June 24, \n                  2024, should be and hereby is GRANTED. \n      \n      6.          Therefore, this claim hereby is dismissed without prejudice subject to the applicable \n                 deadline(s) prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission \n                 Rule 099.13. \n \n This opinion shall not be construed to prohibit the claimant, his attorney, any attorney he \nmay retain in the future, or anyone acting legally and on his behalf from refiling this claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n The  respondents shall pay  the  court reporter’s invoice within twenty  (20) days  of their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \nMP/mp","textLength":5918,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302018 VINCENT WILLIAMS, EMPLOYEE CLAIMANT HIGHLAND DAIRY FOODS CO., LLC, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ CCMSI INSURANCE CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED AUGUST 22, 2024 Hearing conducted on Wednes...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:30.049Z"},{"id":"full_commission-G807060-2024-08-21","awccNumber":"G807060","decisionDate":"2024-08-21","decisionYear":2024,"opinionType":"full_commission","claimantName":"Tina Melius","employerName":"Chapel Ridge Nursing Center","title":"MELIUS VS. CHAPEL RIDGE NURSING CENTER AWCC# G807060 August 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Melius_Tina_G807060_20240821.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Melius_Tina_G807060_20240821.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G807060 \n \nTINA MELIUS, \nEMPLOYEE \n \nCLAIMANT \nCHAPEL RIDGE NURSING CENTER,  \nEMPLOYER \n \nRESPONDENT \nAMTRUST NORTH AMERICA, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED AUGUST 21, 2024  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MATTHEW J. KETCHAM, \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE WILLIAM C. FRYE, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nFebruary 27, 2024.  The administrative law judge found that the claimant \nfailed to prove she sustained a compensable back injury.  The \nadministrative law judge found that the claimant failed to prove she was \nentitled to additional medical treatment provided in connection with “her \ncompensable piriformis and right thigh injuries.”  After reviewing the entire \nrecord de novo, the Full Commission affirms the administrative law judge’s \nopinion.     \nI.  HISTORY \n\nMELIUS - G807060  2\n  \n \n \n Tina Louise Melius, now age 54, testified that she had been \nemployed with the respondents as an LPN, Nurse Manager.  The parties \nstipulated that the employee-employer-carrier relationship existed on July \n11, 2018.  The claimant testified on direct examination: \nQ.  Were you working in your capacity as a Nurse Manager on \n7/11 of ’18? \n  A.  Yes. \n  Q.  What happened that day? \nA.  I was coming out of my office....I was told to go to a room \nand help EMS because they were coming through the \ndoor....We entered the room....I lowered the bed down and I \njust pushed it with my hand and when I went to step, it was – \nit’s like you could almost hear it, but feel it at the same time, a \npopping in my buttocks on my right side.  And when I went to \nstep, my calf drew up and the pain shot down my buttocks to \nbehind my knee.  So I stood there for a second and I rubbed \nmy bottom and then I reached down and felt my calf which \nwas rock hard.... \nQ.  When you mentioned what you have described as a pop \nsensation and sound, where exactly was that? \nA.  In my right glute.   \n \n The claimant testified that she informed a supervisor that a work-\nrelated incident had occurred, and that the employer directed her to seek \nmedical treatment.     \nAccording to the record, the claimant treated at Mercy Clinic on July \n11, 2018:  “Tina had just lifting (sic) a patient to the gurney from the bed \nand when she went to walk away afterwards she had a sharp pain in her \nright glute.”  Dr. Keith Holder reported on July 11, 2018, “This is the first \nexamination for this right hip strain.  She was provided a mild muscle \n\nMELIUS - G807060  3\n  \n \n \nrelaxer for night use.”  The diagnosis was “1.  Strain of muscle, fascia and \ntendon of right hip, initial encounter.”  The claimant was treated \nconservatively, and her Work Status was “Restricted Duty.”  The claimant \ntestified that she returned to work at light duty.     \nDr. Holder diagnosed the following on August 23, 2018:  “1.  Strain of \nmuscle, fascia and tendon of right hip, subsequent encounter.  2.  \nIntervertebral disc disorders with radiculopathy, lumbar region.”  Dr. Holder \ncontinued the Work Status “Restricted Duty.”  Dr. Holder instructed the \nclaimant, “Finish therapy.  Go for the MRI of the back and right thigh.”   \nDr. Holder reported on October 2, 2018, “This is the sixth \nexamination for this right hip strain.  She was provided a mild muscle \nrelaxer for night use and one for daytime.  I have recommended finishing \ntherapy for the last visit, I have requested [an] MRI of the lumbar and right \nthigh that was denied.  I will now try to refer her for a steroid injection of the \nischial bursae at pain management.  She will follow up in three weeks.” \nThe claimant signed a Form AR-C, CLAIM FOR COMPENSATION, \non October 16, 2018.  The ACCIDENT INFORMATION section of the Form \nAR-C indicated that the Date of Accident was July 11, 2018 and indicated, \n“Was helping lift a patient to move to another facility when felt twinge in \nbuttocks.  Buttocks and thigh.”       \n\nMELIUS - G807060  4\n  \n \n \nDr. Roy Sampson noted on November 1, 2018, “She injured herself \nat her job and has been dealing with hip and back pain from that....She \nsays she had an injury at work and her back and hip have been bothering \nher severely.  She is having trouble getting an MRI of her hip because of \nworkman’s comp.  Her pain is located in her right hip, back, and hands.” \nThe claimant consulted with Dr. Brian Goodman on November 13, \n2018:  “Ms. Melius is a 48 y.o. female who presents to the pain clinic with \nback pain which has been gradually worsening over time.  Possible \naccident or event leading to this pain:  July nursing incident, lifting patient, \nfelt a pop, then had spasms in the R buttocks and hamstring.”  Dr. \nGoodman’s assessment was “1.  Muscle strain – likely gluteal.  2.  Possible \npiriformis syndrome.”  Dr. Goodman planned conservative treatment.  The \nclaimant testified that she received pain relief from an injection provided by \nDr. Goodman. \nThe claimant followed up with Dr. Holder on November 30, 2018:  \n“Tina’s primary problem is pain located in the right gluteal area....She has \nhad an injection by Dr. Goodman into the trigger point.  She returns to him \nin two weeks.  Mild decrease in the pain after the steroid shot.”  Dr. Holder \ndiagnosed “1.  Strain of muscle, fascia and tendon of right hip, subsequent \nencounter....Tina’s recommended work status is Restricted Duty.”         \n\nMELIUS - G807060  5\n  \n \n \n A pre-hearing order was filed on February 19, 2019.  According to \nthe pre-hearing order, the claimant contended, “1.  The claimant was \ninjured on July 11, 2018 while assisting with lifting a patient from the bed to \nthe wheelchair.  2.  The claimant reserves the right to amend and \nsupplement her contentions after additional discovery has been completed.  \nThe claimant reserves all other issues.”   \n The parties stipulated that the respondents “have controverted the \nclaim in its entirety.”  The respondents contended that “the claimant is \nalleging an injury on July 11, 2018, at which time she was helping to lift a \npatient, and felt pain in the right buttocks and hip.  The respondents sent \nthe claimant to Dr. Holder for an evaluation.  Dr. Holder found no swelling \nand released the claimant to light duty, which the respondents \naccommodated.  Dr. Holder opined that the claimant had piriformis \nsyndrome, and recommended physical therapy.  On October 2, 2018, Dr. \nHolder ordered an injection in the bursa, which did not provide the claimant \nwith any lasting relief.  On November 13, 2018, the claimant was evaluated \nby Dr. Brian Goodman on a referral from Dr. Holder.  Dr. Goodman opined \nthat the claimant had a right gluteal muscle strain, and recommended \ntrigger point injections.  It is the respondent’s contention that the claimant’s \ncurrent piriformis problems are not due to her work related incident, and \nthat there are no objective findings to support a compensable injury.”   \n\nMELIUS - G807060  6\n  \n \n \n The parties agreed to litigate the following issues: \n1.  Whether claimant suffered a compensable injury to her \nbuttocks and thigh on July 11, 2018. \n2.  Whether claimant is entitled to medical treatment. \n3.  Whether claimant is entitled to temporary partial disability \nbenefits.   \n4.  Attorney fees.   \n \n Dr. Goodman corresponded with a case manager on March 15, \n2019: \n  This is a letter of response to your questions regarding Tina. \n  1.  Diagnosis provided at my visit:  muscle strain. \n2.  Current medical status and prognosis:  I don’t know, I saw \nher one time, 4 months ago.  No follow up. \n3.  Objective findings and treatment plan:  Right buttocks \ntenderness to palpation.  Treatment plan was to follow up for \ntrigger point injection and reevaluation. \n4.  Further improvement or MMI?  Unknown at this time. \n5.  Future treatment recommended:  Unsure until I see her \nagain, if she ever comes back for a follow up.   \n \n A hearing was held on April 16, 2019.  The claimant testified on \ndirect examination: \n  Q.  Are you claiming today that you suffered a back injury? \n  A.  No.  No. \n  Q.  Okay. \n  A.  It is just soreness or stiffness.  I walk it out.   \n  Q.  All right.  Where does the pain radiate from? \n  A.  From my buttocks down to behind my knee.   \nQ.  Okay.  What is your understanding as to what the problem \nis? \n  A.  Piriformis syndrome.   \n  Q.  What is piriformis, do you know? \nA.  The piriformis is a muscle that runs like east to west under \nthe glutes and the sciatic nerve runs through there and it’s \ntwisting and pinching the sciatic nerve.   \n \n\nMELIUS - G807060  7\n  \n \n \n An administrative law judge filed an opinion on June 25, 2019.  The \nadministrative law judge found, among other things, that the claimant “has \nfailed to prove by a preponderance of the evidence that she suffered a \ncompensable injury to her right buttock and thigh on July 11, 2018.”  The \nclaimant filed a notice of appeal to the Full Commission.   \n Dr. Thomas E. Cheyne noted on July 18, 2019: \nMs. Melius is a 48-year-old who presents with chronic right hip \npain over the last year.  She states she injured it at work one \nyear ago on 7/11/18 whenever she was lifting a patient to a \nbed and was trying to reach forward and felt pain in her \nbuttock area.  She had a few physical therapy treatments.  \nShe had one injection at the pain clinic but then Workers’ \nCompensation insurance denied any further injections.... \nShe is nontender in the low back.... \nX-rays of the lumbar spine are within normal limits for her age \nas is an AP pelvis.   \n \n Dr. Cheyne’s impression was “Chronic right hip pain, probable \nhamstring injury.  PLAN:  I would recommend getting an MRI of the right hip \nand pelvis.  We will have her continue her naproxen.  We will send her to \nphysical therapy, continue her work restrictions as a nurse, and we will see \nher back after the MRI.”  An MRI of the claimant’s hip was taken on July 26, \n2019 with the impression, “Essentially normal MRI of the bony pelvis and \nhips.”   \n Dr. Cheyne reported on July 31, 2019: \nMs. Melius returns for follow up of her chronic right hip pain.  \nShe had her MRI scan of her hip which was essentially normal \nother than an incidental finding of a left ovarian cyst.  She has \n\nMELIUS - G807060  8\n  \n \n \na history of ovarian polycystic disease so she is well aware of \nthat finding and is seeing her gynecologist in that regard.  I \ncontinue to believe that this is not a lower back issue.  I also \ndo not believe that this is a right hip joint issue but more likely \nmuscle or tendon injury.  Other than physical therapy and anti-\ninflammatories which have so far not helped, I would \nrecommend getting her in to see Dr. Jones just for a second \nopinion evaluation and get his ideas about the possible source \nof her pain.  We will schedule that appointment as soon as \ntime is available. \n \n Dr. Greg Jones noted on August 21, 2019: \nMs. Melius is a 49-year-old from Alma who presents at Dr. \nBishop’s request regarding right hip pain and back pain that \nhas been going on since she had a patient lifting incident on \n7/11/18.  She apparently has been denied as workman’s \ncomp.  She felt a pop and has had pain in the posterior aspect \nof her hip, states that she has had a “knot.”  She has been \ntreating with physical therapy for “piriformis syndrome.”  She \nhas been told by the therapist on multiple occasions that they \ncan feel the lump.  Physical therapy seems to have helped her \nget some motion back and she is not as tight as she was but \nshe comes in for complaints of her continued hip pain. \nOn exam, she has mild to moderate greater trochanteric \nbursitis.  The radicular pain symptoms are down the right leg \nand she has mild straight leg raise. \nI think that she has hurt her back.  This isn’t a piriformis \nlesion.  Certainly that can contribute to sciatic inflammation, \nbut I think we need to find out at this point, a year after the \nindex injury, if there is something more serious in terms of her \nback that could be addressed.  She was at Chapel Ridge \nHealth & Rehab when this occurred.  Dr. Bishop is her primary \nmedical physician.  They have an MRI of the hip.  I have \nreviewed it carefully.  There is no evidence of tendon avulsion, \nfemoral acetabular arthritis, avascular necrosis, or other \nintrinsic femoral acetabular issues in terms of the source of \nher present discomfort.  On external rotation, the hip did not \nreproduce her pain and while palpably she is tender \nposteriorly along the tract of the sciatic nerve, I do not feel an \nactual muscle avulsion where the “lump” that the therapist has \nbeen so prominent about.   \n\nMELIUS - G807060  9\n  \n \n \nWe will see her back when the lumbar MRI is completed and \nproceed with conservative care further.  Previous lumbar \nspine x-rays from July 18\nth\n were reviewed.  These are from \n2019.  She has straightening and loss of the lumbar lordosis.  \nThere is no obvious listhesis or scoliotic pattern.  There is \nspur-type lipping anteriorly at 4-5 and at T11-12.  Disc space \nheights are fairly well maintained but subchondral endplate \nsclerosis is noted.  On the foraminal outlet view there appears \nto be facet arthropathy, interference at 4-5 and at 5-1.  No \nfractures and no destruction lesion evident.  No new x-rays \nare made on today’s spine films.  We will see her when the \nMRI is completed.  No additional x-rays need to be made at \nthat time.  Previous hip x-rays were reviewed and although \nshe has some calcific density at the abductor insertion on the \nright hip, prominent trochanter changes, these are not \nconsistent with femoral acetabular arthritis.  No leg length \ninequality and these again are hip x-rays made in July and no \nnew films are made.   \n \n An MRI of the claimant’s lumbar spine was taken on August 28, 2019 \nwith the following impression: \n1.  Central/left paracentral disc protrusion L4-5 level, along \nwith hypertrophy the facets and ligamentum flavum causing at \nleast moderate central stenosis with probable mass effect left \nL5 nerve root lateral recess. \n2.  Broad-based central protrusion L5-S1 level mild central \nstenosis.  There may be some mild mass effect left S1 nerve \nroot lateral recess.   \n \n The claimant followed up with Dr. Jones on September 4, 2019: \nMs. Melius is a nurse at local Chapel Ridge Health & Rehab.  \nShe has been on limited duty pushing a cart.  She has not \nbeen engaged in lifting activities.  She comes back for \nfollowup of her MRI.  She has lumbar stenosis, facet \nhypertrophy and degenerative disc changes at L4-5 and L5-\nS1 with disc protrusion.  Her symptoms have improved \nconsiderably with the physiotherapy.  I do not think she has a \nherniated disc that requires surgery.  We have talked about \nthe implications of this level of back trouble.  At age 49 in \n\nMELIUS - G807060  10\n  \n \n \nterms of her body habitus, her lifting, etc., I recommended that \nshe not be lifting patients.  Physical therapy will be changed to \ninclude spinal flexibility and strengthening.  I think the \npiriformis syndrome is not the answer but rather the stenotic \nphenomenon, and given that she is this much better with \ntherapy, surgery is a last resort.  Lumbar epidural steroids \nmay be of benefit. \nShe has asked that I opine as to its onset.  Certainly, the story \nshe provided historically that she felt a pop, had swelling and \npresented immediately, this represents an exacerbation of an \nunderlying degenerative disc phenomenon and at least by the \nhistorical information stated, she is thankfully better and I do \nnot think will require any surgical intervention at this juncture, \nbut it has lifelong implications which we discussed at length.  \nWe will change physical therapy.  I asked her to do that twice \ndaily.  Her injury was in July 2018 so she is making it pretty \ndecent.  I think she should remain with a limited duty status in \nterms of avoidance of patient lifting and we will leave her \nfollowup here open ended.   \n \n The claimant agreed on cross-examination that she did not treat with \nDr. Jones after September 4, 2019.  The claimant testified that she worked \nfor the respondent-employer through September 19, 2019.  The claimant \ntestified, “I could no longer do the patient-lifting portion of my job.”  The \nclaimant testified that she became employed with a nursing home on \nSeptember 20, 2019.     \n Meanwhile, a majority of the Full Commission affirmed and adopted \nthe administrative law judge’s June 25, 2019 decision in an opinion filed \nDecember 19, 2019.  In an opinion delivered February 10, 2021, the \nArkansas Court of Appeals reversed and remanded for further proceedings.  \nMelius v. Chapel Ridge Nursing Center, 2021 Ark. App. 61, 618 S.W.3d \n\nMELIUS - G807060  11\n  \n \n \n410.  The Court determined:  “[W]e reinstate Melius’s case and remand for \nfurther determinations of whether she suffered a compensable injury to her \nbuttock and thigh on July 11, 2018, whether she is entitled to medical \ntreatment, and whether she is entitled to temporary partial-disability \nbenefits.”         \n The Full Commission filed an opinion on September 28, 2021 and \nremanded to the administrative law judge “for proceedings consistent with \nthis order and the mandate from the Court of Appeals.”  The parties \nthereafter stipulated that the claimant “sustained a compensable piriformis \ninjury to the buttock and thigh” on July 11, 2018. \n Dr. Cheyne noted on November 23, 2021: \nMs. Melius is seen back for the first time since I last saw her \nin July 2019 with right buttock pain.  She eventually saw Dr. \nJones who thought that this was likely related to her back.  \nShe had an MRI scan done and had a left paracentral disk \nprotrusion at L4-5 and a central disk protrusion at L5-S1.  She \ngot better to a point with physical therapy and anti-\ninflammatory medications.  She also got some relief from a \ngluteal injection which was done by Dr. Goodman; however, \nshe has persistent pain.  I have looked at her MRI scan and \nstill believe that this is likely related to her back, although it is \ncertainly possible since she got relief from the injection by Dr. \nGoodman.  We will get her back in to see him for another \ninjection or 2.  If gluteal injections do not work, then we will \nconsider LESIs.   \n \n A pre-hearing order was filed on July 21, 2022.  The claimant \ncontended, “1.  The above listed proposed stipulations.  2.  The Claimant \nwas injured on July 11, 2018, while assisting EMS personnel who were \n\nMELIUS - G807060  12\n  \n \n \nmoving a patient from a bed to a gurney.  The Claimant was grabbed by the \npatient while lowering the patient onto the gurney which caused the \nclaimant to come up onto her right tiptoes.  The Claimant felt a pop in her \nglute and a muscle spasm in her thigh and calf.  On July 11, 2018, the \nClaimant was instructed to see Dr. Keith Holder at Mercy Clinic \nOccupational Medicine with complaints of sharp pain in the right glute.  Dr. \nHolder diagnosed the claimant with strain of muscle, fascia and tendon of \nright hip.  Dr. Holder also restricted the Claimant to light duty with a follow-\nup in seven (7) to ten (10) days as well as hip exercises and a cane to \nambulate with.  On July 19, 2018, the Claimant returned to Dr. Holder for a \nfollow-up where she stated that the pain is worse at night as well as with \nsitting.  Dr. Holder kept the Claimant restricted to light duty and referred her \nto therapy.  The Claimant continued to follow-up with Dr. Holder who \ncontinued to refer the Claimant for therapy as well as her restriction to light \nduty.  On August 13, 2018, the Claimant attended physical therapy for \nstrain of muscle, fascia and tendon of right hip where it was noted that she \nhas decreased range of motion and strength as well as gait and postural \ndeficits.  The Claimant was approved for six (6) visits.  On August 23, 2018, \nthe Claimant was seen by Dr. Holder where he recommended the Claimant \nto finish therapy and that he would request an MRI of the Claimant’s lumbar \nspine and right thigh which was denied.”   \n\nMELIUS - G807060  13\n  \n \n \n The claimant contended, “On October 2, 2018, the Claimant once \nagain seen (sic) by Dr. Holder where he referred the Claimant for steroid \ninjection by pain management.  Dr. Holder kept the Claimant on light duty.  \nOn November 23, 2018, the Claimant was seen by Dr. Brian Goodman for \npain management where it (sic) he recommended the Claimant getting \nstretching exercises and to follow-up in one (1) month.  The Claimant \nreturned once more to Dr. Holder for a follow-up.  However, any further \ntreatment was denied by Respondents.  While the Claimant was going \nthrough the workers’ compensation process, she continued to seek \ntreatment using her own private health insurance.  On July 18, 2019, the \nClaimant present (sic) to Dr. Thomas Cheyne for continued right hip pain.  \nDr. Cheyne’s diagnosed (sic) was chronic right hip pain, probable hamstring \ntendon injury.  He recommended an MRI of right hip and pelvis as well as \nreferred the Claimant for physical therapy.  The Claimant had an MRI \ncompleted which was normal.  However, Dr. Cheyne referred the Claimant \nfor a second opinion to try to locate the source of the pain.  In the \nmeantime, the Claimant continued to attend physical therapy for a right \nhamstring injury.”   \n The claimant contended, “On August 12, 2019, the Claimant was \nseen by Dr. Greg Jones for a second opinion.  Dr. Jones notes the \nClaimant’s radicular pain symptoms down the right leg.  Dr. Jones states \n\nMELIUS - G807060  14\n  \n \n \nthat he believes that the Claimant has suffered a low back injury and has \nrequested a lumbar MRI.  The Claimant returns to Dr. Jones post-MRI on \nSeptember 4, 2019, and it was found that the Claimant has lumbar \nstenosis, facet  hypertrophy and degenerative disc changes at L4-5 and L5-\nS1 disc protrusion.  Dr. Jones changed the Claimant’s physical therapy to \nfocus on the Claimant’s lumbar spine but that she is to continue on light \nduty work restrictions.  The Claimant continued with physical therapy \ntreatment.  On November 23, 2021, the Claimant returned to Dr. Cheyne for \ncontinued pain where Dr. Cheyne opined his opinion that they (sic) right \nglute pain comes from the Claimant’s low back and referred the Claimant \nfor additional trigger point injections.  3.  Claimant reserves the right to \nsupplement and amend her contentions after additional discovery has been \ncompleted.”   \n The parties stipulated, “The respondents have agreed to pay for all \nmedical treatment from July 11, 2018, to April 16, 2019, regarding the \ncompensable piriformis injury to the buttock and thigh.”  The respondents \ncontended, “Respondents contend that the Claimant did have a piriformis \ninjury that the Court of Appeals said was in the right buttocks.  The \nClaimant apparently is now having problems in the low back, which was not \nlitigated at the prior hearing and is not subject to this remand.  Respondents \nhave paid the medical bills that were subject of the initial hearing related to \n\nMELIUS - G807060  15\n  \n \n \nthe piriformis syndrome.  A copy of the payment history is attached.  The \nClaimant has not outlined what medical are outstanding nor have any \nmedical bills been submitted.  Claimant is also contending that she is \nentitled to temporary total disability benefits.  However, the Claimant did not \nlose any time from work, but did make a claim for temporary partial \ndisability.  It is possible that issue will need to be litigated, though it is \nunclear what benefits and time frame the Claimant is asking for benefits.  \nThe Claimant has not provided any off work slips.  In addition, she \nvoluntarily quit working for the Respondent-Employer and went to work for \nanother facility.  Therefore, Respondents are unaware of any missed time.  \nNext, the Claimant went from 2019 to 2021 with no medical treatment.  It is \nRespondents position that the healing period has long since ended.  \nClaimant has also requested permanent partial disability and wage loss.  \nRespondents are unaware of any impairment rating being assigned for the \npiriformis syndrome.”   \n The parties agreed to litigate the following issues: \n1.  Whether Claimant is entitled to temporary partial disability \nbenefits.   \n  2.  Whether Claimant’s attorney is entitled to an attorney fee.   \n \n After a hearing, an administrative law judge filed an opinion on \nOctober 18, 2022.  The administrative law judge found, “2.  That the \nclaimant has proven by a preponderance of the evidence that she is entitled \n\nMELIUS - G807060  16\n  \n \n \nto temporary partial disability benefits from July 12, 2018, until she began \nher new position with the respondents sometime between September of \n2018 and December of 2018.”  The parties have stipulated, “All prior \nopinions are res judicata and the law of this case.” \n A pre-hearing order was filed on October 31, 2023.  According to the \npre-hearing order, the claimant contended:  “1.  The above-listed proposed \nstipulations.  2.  The Claimant was injured on July 11, 2018 while assisting \nEMS personnel who were moving a patient from a bed to a gurney.  The \nClaimant was grabbed by the patient while lowering the patient onto the \ngurney which caused the claimant to come up onto her right tiptoes.  The \nClaimant felt a pop in her glute and a muscle spasm in her thigh and calf.  \nOn July 11, 2018, the Claimant was instructed to see Dr. Keith Holder at \nMercy Clinic Occupational Medicine with complaints of sharp pain in right \nglute.  Dr. Holder diagnosed the claimant with strain of muscle, fascia and \ntendon of right hip.  Dr. Holder also restricted the Claimant to light duty with \na follow-up in seven (7) to ten (10) days as well as hip exercises and a cane \nto ambulate with.  On July 19, 2018, the Claimant returned to Dr. Holder for \na follow-up where she stated that the pain is worse at night as well as with \nsitting.  Dr. Holder kept the Claimant restricted to light duty and referred her \nfor therapy.  The Claimant continued to follow-up with Dr. Holder who \ncontinued to refer the Claimant for therapy as well as her restriction to light \n\nMELIUS - G807060  17\n  \n \n \nduty.  On August 13, 2018, the Claimant attended physical therapy for \nstrain of muscle, fascia and tendon of right hip where it is noted she has \ndecreased range of motion and strength as well as gait and postural \ndeficits.  The Claimant was approved for six (6) visits.  On August 23, 2018, \nthe Claimant was seen by Dr. Holder where he recommended the Claimant \nto finish therapy and that he would request an MRI of the Claimant’s lumbar \nspine and right thigh which was denied.  On October 2, 2018, the Claimant \nonce again seen (sic) by Dr. Holder where he referred the Claimant for \nsteroid injection by pain management.  Dr. Holder kept the Claimant on light \nduty.  On November 13, 2018, the Claimant was seen by Dr. Brian \nGoodman for pain management where it (sic) he recommended the \nClaimant getting trigger point injection in the right gluteal muscle as well as \nstretching exercises and to follow-up in one (1) month.  The Claimant \nreturned once more to Dr. Holder for a follow-up.  However, any further \ntreatment was denied by the Respondents.  While the Claimant was going \nthrough the workers’ compensation process, she continued to seek \ntreatment using her own private health insurance.  On July 18, 2019, the \nClaimant present (sic) to Dr. Thomas Cheyne for continued right hip pain.  \nDr. Cheyne’s diagnosed (sic) was chronic right hip pain, probable hamstring \ninjury.  He recommended an MRI of right hip and pelvis as well as referred \nthe Claimant for physical therapy.  The Claimant had an MRI completed \n\nMELIUS - G807060  18\n  \n \n \nwhich was normal.  However, Dr. Cheyne referred the Claimant for a \nsecond opinion to try to locate the source of the pain.  In the meantime, the \nClaimant continued to attend physical therapy for a right hamstring injury.  \nOn August 21, 2019, the Claimant was seen by Dr. Greg Jones for a \nsecond opinion.  Dr. Jones notes the Claimant’s radicular pain symptoms \ndown the right leg.  Dr. Jones states that he believes that the Claimant has \nsuffered a low back injury and has requested a lumbar MRI.  The Claimant \nreturns to Dr. Jones post-MRI on September 4, 2019 and it was found that \nthe Claimant has lumbar stenosis, facet hypertrophy and degenerative disc \nchanges at L4-5 and L5-S1 disc protrusion.  Dr. Jones changes the \nClaimant’s physical therapy to focus on the Claimant’s lumbar spine but that \nshe is to continue on light duty work restrictions.  The Claimant continued \nwith physical therapy treatment.  On November 23, 2021, the Claimant \nreturned to Dr. Cheyne for continued pain where Dr. Cheyne opined his \nopinion that they (sic) right glute pain comes from the Claimant’s low back \nand referred the Claimant for additional trigger point injections.  3.  Claimant \nreserves the right to supplement and amend her contentions after additional \ndiscover (sic) has been completed.”   \n The respondents contended, “Respondents contend that the \nclaimant did have a piriformis injury that the Court of Appeals said was in \nthe right buttocks but not the low back.  The Claimant is apparently now \n\nMELIUS - G807060  19\n  \n \n \nhaving problems in the low back.  The Claimant testified at the previous \nhearing that her low back was not injured in July 11, 2018.  The Court of \nappeals found the Claimant sustained a piriformis injury and a claim for the \nlow back was not filed until the statute of limitations had run on this case.  \nThe Claimant is also contending that she is entitled to temporary total \ndisability benefits.  The Commission found that the Claimant was entitled to \nTemporary Partial Disability until sometime between September of 2018 \nand December of 2018 when she began a new position with the \nRespondents.  The Claimant has not provided any off work slips.  In \naddition, she voluntarily quit working for the Respondent-employer and \nwent to work for another facility.  Therefore, Respondents are unaware of \nany missed time.  Next, the Claimant went from 2019 to 2021 with no \nmedical treatment.  It is Respondents position that the healing period has \nlong since ended.  Claimant has also requested permanent partial disability \nand wage loss.  Respondents are unaware of any impairment rating being \nassigned for the piriformis syndrome.”   \n The parties agreed to litigate the following issues: \n1.  Whether Claimant is entitled to additional medical \ntreatment for her compensable piriformis and right thigh \ninjuries that occurred on July 11, 2018, or alternatively, \nwhether Claimant sustained a compensable injury to her low \nback on or about July 11, 2018.   \n2.  Whether Claimant is entitled to additional medical \ntreatment for compensable low back injury. \n\nMELIUS - G807060  20\n  \n \n \n3.  Whether Claimant is entitled to temporary partial disability \nbenefits from September 19, 2019 to a date yet to be \ndetermined. \n4.  Respondents raise the Statute of Limitations defense.   \n5.  Whether Claimant’s attorney is entitled to an attorney fee.  \n \n A hearing was held on November 30, 2023.  The claimant testified \nthat she was working for another employer, Mercy Neurosurgery.     \n An administrative law judge filed an opinion on February 27, 2024.  \nThe administrative law judge found, among other things, that the claimant \ndid not prove she sustained a compensable back injury.  The administrative \nlaw judge found that the claimant did not prove she was entitled to \nadditional medical treatment, and that the claimant did not prove she was \nentitled to additional temporary partial disability benefits.  The administrative \nlaw judge therefore denied the claim.  The claimant appeals to the Full \nCommission.   \nII.  ADJUDICATION \n A.  Compensability \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.] \n \n\nMELIUS - G807060  21\n  \n \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).   \n An administrative law judge found in the present matter, “4.  The \nclaimant has failed to prove by a preponderance of the evidence that she \nsustained a compensable injury to her low back on or about July 11, 2018.”  \nThe Full Commission affirms this finding.  The parties stipulated that the \nemployment relationship existed on July 11, 2018.  The claimant testified \nthat she “felt a popping in my buttocks on my right side” while lowering and \npushing a resident’s bed.  The claimant testified that the pain was “in my \nright glute.”  The parties have stipulated that the claimant “sustained a \ncompensable piriformis injury to the buttock and thigh” on July 11, 2018.   \n The claimant did not prove by a preponderance of the evidence that \nshe also sustained a compensable injury to her low back on July 11, 2018.  \n\nMELIUS - G807060  22\n  \n \n \nDr. Holder reported on July 11, 2018 that the claimant had sustained a \n“right hip strain.”  Dr. Holder diagnosed “Strain of muscle, fascia and tendon \nof right hip[.]”  Dr. Holder did not opine that the claimant had sustained a \nback injury.  The claimant signed a Form AR-C, CLAIM FOR \nCOMPENSATION, on October 16, 2018.  The claimant reported on the \nForm AR-C that she had injured her buttocks and thigh.  The claimant did \nnot report that she had also injured her back on July 11, 2018.  As the Full \nCommission has noted, the claimant expressly testified on April 16, 2019 \nthat she had not suffered a back injury.  The claimant testified that she was \nsuffering from “piriformis syndrome.”  Dr. Cheyne reported on July 18, 2019 \nthat the claimant was “nontender in the low back.”  We also note Dr. \nCheyne’s report on July 31, 2019, “I continue to believe that this is not a \nlower back issue.”   \n The Full Commission recognizes Dr. Jones’ opinion stated August \n21, 2019, “I think she has hurt her back.”  It is within the Commission’s \nprovince to weigh all of the medical evidence and to determine what is most \ncredible.  Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 \n(1999).  In the present matter, we assign minimal weight to Dr. Jones’ \nopinion that the claimant injured her back.  Neither the medical evidence of \nrecord nor the claimant’s testimony indicates that the claimant injured her \nback on July 11, 2018.  Moreover, the claimant reported on the Form AR-C \n\nMELIUS - G807060  23\n  \n \n \ndated October 16, 2018 that she had injured only her buttocks and thigh on \nJuly 11, 2018.  The claimant did not report a back injury.   \n In accordance with the applicable elements of Ark. Code Ann. §11-9-\n102(4)(Repl. 2012), the Full Commission finds that the claimant did not \nprove by a preponderance of the evidence that she sustained a \n“compensable injury” to her back on July 11, 2018.  The claimant did not \nprove that she sustained an accidental injury causing internal or external \nphysical harm to her back.  The claimant did not prove that she sustained \nan injury to her back which arose out of and in the course of employment, \nrequired medical services, or resulted in disability.  The claimant did not \nprove that she sustained an injury to her back which was caused by a \nspecific incident or was identifiable by time and place of occurrence on July \n11, 2018.  In addition, the claimant did not establish a compensable injury \nto her back by medical evidence supported by objective findings.  We find \nthat none of the abnormalities shown in the claimant’s lumbar spine \nbeginning July 18, 2019 were causally related to the “compensable \npiriformis injury to the buttock and thigh” which the claimant sustained on \nJuly 11, 2018, or that the claimant established a compensable injury to her \nlumbar spine by medical evidence supported by objective findings.  See \nFord v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998).   \n B.  Temporary Disability \n\nMELIUS - G807060  24\n  \n \n \n Temporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages, whereas \ntemporary partial disability is that period within the healing period in which \nthe employee suffers only a decrease in her capacity to earn the wages she \nwas receiving at the time of the injury.  Ark. State Hwy. Dept. v. Breshears, \n272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing period” means “that period \nfor healing of an injury resulting from an accident.”  Ark. Code Ann. §11-9-\n102(12)(Repl. 2012).  A healing period has not ended so long as treatment \nis administered for the healing and alleviation of a condition.  Milligan v. \nWest Tree Serv., 57 Ark. App. 14, 946 S.W.2d 697 (1997). \n An administrative law judge found in the present matter, “5.  The \nclaimant has failed to prove by a preponderance of the evidence that she is \nentitled to temporary partial disability benefits from September 19, 2019, to \na date yet to be determined.\"  The Full Commission affirms this finding.  \nThe parties have stipulated that the claimant “sustained a compensable \npiriformis injury to the buttock and thigh” on July 11, 2018.  The claimant \ntestified that she returned to light-duty work following the compensable \ninjury.  An administrative law judge found that the claimant proved she was \n“entitled to temporary partial disability benefits from July 12, 2018, until she \nbegan her new position with the respondents somewhere between \n\nMELIUS - G807060  25\n  \n \n \nSeptember of 2018 and December of 2018.”  The parties have stipulated, \n“All prior opinions are res judicata and the law of this case.”   \n The claimant testified that she continued to work for the respondent-\nemployer through September 19, 2019.  The claimant testified that she \nbecame a full-time employee with Legacy, a nursing home, on September \n20, 2019.  The Full Commission finds that the claimant did not prove she \nwas entitled to additional temporary partial disability benefits after \nSeptember 19, 2019.  We find that the claimant did not prove she was \npartially incapacitated from earning wages at any time after September 19, \n2019. \n C.  Medical Treatment \n Finally, the employer shall promptly provide for an injured employee \nsuch medical treatment as may be reasonably necessary in connection with \nthe injury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. \n2012).  The employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  What \nconstitutes reasonably necessary medical treatment is a question of fact for \nthe Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 \nS.W.2d 70 (1984).   \n\nMELIUS - G807060  26\n  \n \n \n An administrative law judge found in the present matter, “2.  The \nclaimant has failed to prove by a preponderance of the evidence that she is \nentitled to additional medical treatment for her compensable piriformis and \nright thigh injuries that occurred on July 11, 2018.”  The Full Commission \nfinds that the claimant did not prove additional medical treatment was \nreasonably necessary in connection with her compensable injuries.  As we \nhave discussed, the parties stipulated that the claimant “sustained a \ncompensable piriformis injury to the buttock and thigh” on July 11, 2018.  \nThe claimant treated with physicians including Dr. Holder, Dr. Sampson, \nand Dr. Goodman following her compensable injury.  There are currently no \ntreatment recommendations of record related to the compensable piriformis \ninjury.  We therefore find that the claimant did not prove additional medical \ntreatment was reasonably necessary.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that she \nsustained a compensable back injury.  The claimant did not prove that she \nwas entitled to additional temporary partial disability benefits, and the \nclaimant did not prove that additional medical treatment was reasonably \nnecessary in connection with her compensable piriformis injury.  The \nadministrative law judge’s opinion is affirmed, and this claim is respectfully \ndenied and dismissed.   \n\nMELIUS - G807060  27\n  \n \n \n IT IS SO ORDERED.               \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents.","textLength":41715,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G807060 TINA MELIUS, EMPLOYEE CLAIMANT CHAPEL RIDGE NURSING CENTER, EMPLOYER RESPONDENT AMTRUST NORTH AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 21, 2024","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:1","granted:3","denied:9"],"injuryKeywords":["back","knee","hip","strain","lumbar","herniated"],"fetchedAt":"2026-05-19T22:29:45.171Z"},{"id":"full_commission-G903349-2024-08-21","awccNumber":"G903349","decisionDate":"2024-08-21","decisionYear":2024,"opinionType":"full_commission","claimantName":"Jacqueline Penny","employerName":"Little Rock School District","title":"PENNY VS. LITTLE ROCK SCHOOL DISTRICT AWCC# G903349 August 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Penny_Jacqueline_G903349_20240821.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Penny_Jacqueline_G903349_20240821.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  G903349 \n \nJACQUELINE F. PENNY, EMPLOYEE  CLAIMANT \n  \nLITTLE ROCK SCHOOL DISTRICT, EMPLOYER RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION,  \nWCT, INSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED AUGUST 21, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN MOOREHEAD, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed May 7, 2024.  In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law: \n1. That the Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2. All parties received notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n \n3. Respondents have proven by a preponderance of the evidence \nthat Claimant has failed to prosecute this claim under AWCC R. \n099.13. \n \n\n \nPENNY - G903349  2\n  \n \n \n \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's May 7, 2024 \ndecision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2271,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G903349 JACQUELINE F. PENNY, EMPLOYEE CLAIMANT LITTLE ROCK SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, WCT, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 21, 2024 Upon review before the FUL...","outcome":"affirmed","outcomeKeywords":["affirmed:3","dismissed:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.174Z"},{"id":"full_commission-H305153-2024-08-21","awccNumber":"H305153","decisionDate":"2024-08-21","decisionYear":2024,"opinionType":"full_commission","claimantName":"Ricky Smith","employerName":"Arkansas Department Of Transportation","title":"SMITH VS. ARKANSAS DEPARTMENT OF TRANSPORTATION AWCC# H305153 August 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Smith_Ricky_H305153_20240821.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Smith_Ricky_H305153_20240821.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H305153 \n \nRICKY SMITH, EMPLOYEE  CLAIMANT \n \nARKANSAS DEPARTMENT OF TRANSPORTATION,  \nEMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED AUGUST 21, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant is Pro Se.  \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed May 24, 2024.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n \n2. The stipulations set forth above are reasonable and are hereby \naccepted. \n \n3. Claimant has not proven by a preponderance of the evidence that \nthe instant claim for initial benefits was timely filed.  Instead, the \n\n \nSMITH - H305153  2\n  \n \n \nevidence preponderates that it is barred by the statute of limitations \nset forth in Ark. Code Ann. § 11-9-702(a)(1) (Repl. 2012). \n \n4. Because of the above finding, the remaining issues–whether \nClaimant sustained compensable injuries to his neck, back, \nshoulders, chest, and arms by specific incident, when did he provide \nnotice of his alleged injuries, whether he is entitled to reasonable and \nnecessary medical treatment of his alleged injuries, whether he is \nentitled to temporary total disability benefits, and whether \nRespondents are entitled to an offset–are moot and will not be \naddressed. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's May 24, \n2024 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n  \n \n \n\n \nSMITH - H305153  3\n  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2690,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H305153 RICKY SMITH, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF TRANSPORTATION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 21, 2024 Upon review before the FULL COMM...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:3"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:29:45.179Z"},{"id":"alj-H302292-2024-08-21","awccNumber":"H302292","decisionDate":"2024-08-21","decisionYear":2024,"opinionType":"alj","claimantName":"James Allmon","employerName":"Primetals Tech. USA LLC","title":"ALLMON VS. PRIMETALS TECH. USA LLC AWCC# H302292 August 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Allmon_James_H302292_20240821.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Allmon_James_H302292_20240821.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H302292 \n \n \nJAMES ALLMON, EMPLOYEE CLAIMANT \n \nPRIMETALS TECH. USA LLC, \n EMPLOYER RESPONDENT \n \nFARMINGTON CASUALTY CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 21, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on June  21,  2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented by Mr. George H. Bailey, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  Mr. Michael  E.  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On June   21,   2024,   the   above-captioned   claim   was   heard   in Jonesboro, \nArkansas.    A  prehearing  conference  took  place  on April  15,  2024.   The Prehearing \nOrder  entered  on April  16,  2024, pursuant  to  the  conference  was  admitted  without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the \nstipulations, issues, and respective contentions, as amended, were properly set forth in \nthe order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit  1.  With  the  addition  of  a  fourth  at  the  hearing, and the fifth via Respondents’ \n\nALLMON – H302292 \n \n2 \ncontentions and  proposed  stipulation  (see infra note 3),  they  are  the  following,  which  I \naccept: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The  employee/employer/carrier  relationship  existed  on  March  24,  2023, \nwhich  Claimant  sustained  a  compensable  injury  to  his  right  ankle  by \nspecific incident. \n3. Respondents   accepted   the   above   injury   as   compensable   and   paid \nbenefits pursuant thereto. \n4. Claimant has been assigned an impairment rating of nine percent (9%) to \nthe  lower  extremity  in  connection  with  his  stipulated  compensable  injury; \nand Respondents are currently paying permanent partial disability benefits \npursuant to that rating. \n5. Claimant’s  average  weekly  wage  entitled  him  to  the  maximum \ncompensation rates of $835.00/$626.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  After amendments, the following were litigated: \n1. Whether Claimant sustained  an  injury  to  his  back as a compensable \nconsequence of his stipulated compensable right ankle injury. \n2. Whether Claimant is entitled to reasonable and necessary treatment of his \nalleged back injury. \n\nALLMON – H302292 \n \n3 \n3. Whether  Claimant  sustained  an  injury in  the  form  of  atrophy  of  his  right \nlower  extremity  above  the  knee  as a  compensable  consequence of  his \nstipulated compensable right ankle injury. \n4. Whether Claimant is entitled to an impairment rating of three percent (3%) \nto  his  right  lower  extremity,  and  permanent  partial  disability  benefits \npursuant   thereto,   in   connection   with   the   alleged   atrophying   of   that \nappendage. \n5. Whether Claimant is entitled to a controverted attorney’s fee not  only  on \nthe  permanent  partial  disability  benefits  sought  in  connection  with  the \nalleged  atrophying  of  his  right  lower  extremity,  but  on  the  as-yet  unpaid \nportion of the benefits tied to the nine percent (9%) impairment rating. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, following amendments at the hearing, \nread as follows: \n Claimant: \n1. Claimant  contends  that  he  sustained  a  compensable injury  on  or  about \nMarch  24,  2023,  during  the  course  of  and  within  the  scope  of  his \nemployment with Respondent Employer. \n2. Claimant  further  contends that  he  is  entitled to additional  reasonable  and \nnecessary   medical   treatment   and   unpaid   medically   related   travel \n\nALLMON – H302292 \n \n4 \nexpenses,  and  treatment  for  the  hip\n1\n and  back.    He  was  referred  to  Dr. \nAshley Park, who has ordered an MRI, with a diagnosis of radiculopathy.  \nThat has not been approved and appears to have been denied. \n3. Claimant  contends  that  he  is  entitled  to  additional  temporary  total  and \ntemporary partial disability benefits for a period yet to be determined.\n2\n \n4. Claimant  also  contends  that  he  is  entitled  to  permanent  partial  disability \nbenefits pursuant to impairment ratings of nine percent (9%) or greater to \nthe right foot and three percent (3%) to the right lower extremity above the \nknee.    The  latter  is  alleged  to  be  related  to  muscle  atrophy  that  he  has \nsuffered    as  a  compensable  consequence  of  his  stipulated  compensable \nright ankle injury. \n5. Statutory  attorney’s  fees  based  upon  all  controverted  amounts  are \nclaimed. \n Respondents: \n1. Respondents  will  assert  the  following  defenses:    (a)  they  have  stipulated \nto the maximum compensation rate\n3\n—there is no issue; (b) Claimant does \n \n \n1\nNo issue has been raised concerning this, so it will not be addressed.  Instead, it \nwill be considered reserved. \n \n \n2\nSee supra note 1. \n \n \n3\nReview of Respondents’ March 14, 2024, prehearing questionnaire response \nconfirms that they offered to stipulate that Claimant’s average weekly wage entitled him \nto the maximum compensation rates of $835.00/$626.00.  Based on this, I have found \nthat  the  parties  have  reached  a  stipulation  on  this  point.    It has  thus  been added  as \nStipulation No. 5.  See supra. \n\nALLMON – H302292 \n \n5 \nnot have a compensable back injury—this is a foot injury; (c) the injury is a \nscheduled  injury,  and  no  permanent  impairment  rating\n4\n has  been  issued \nyet; (d) there is no wage loss\n5\n with a scheduled injury; and (e) the antalgic \ngait\n6\n table is only used when the proper rating to the extremity cannot be \nascertained. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports, non-medical \nrecords,  and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity  to  hear  the  testimony  of Claimant and  to  observe his demeanor,  I  hereby \nmake the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant   has   proven   by   a   preponderance   of   the   evidence   that   he \nsustained  an  injury  to  his  back  as  a  compensable  consequence  of  his \nstipulated compensable right ankle injury. \n \n \n \n4\nAs shown by Stipulation No. 3 supra and the evidence (infra), both the stipulated \ncompensable right ankle injury and the atrophying of Claimant’s right thigh have been \nrated. \n \n \n5\nThis issue has been reserved. \n \n \n6\nThis is not at issue in this proceeding. \n\nALLMON – H302292 \n \n6 \n4. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  reasonable  and  necessary  treatment  of  his  compensable  back \ninjury. \n5. Claimant   has   proven   by   a   preponderance   of   the   evidence   that   he \nsustained  an  injury  in  the  form  of  atrophying  of  his  right  thigh  as  a \ncompensable  consequence  of  his  stipulated  compensable  right  ankle \ninjury. \n6. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  an  impairment  rating  of  three  percent  (3%)  to  his  right  lower \nextremity,  and  permanent  partial  disability  benefits pursuant  thereto,  in \nconnection with the compensable atrophying of his right thigh. \n7. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to a controverted attorney’s fee in connection with the indemnity \nbenefits awarded in Finding of Fact/Conclusion of Law No. 6. \n8. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  a  controverted  attorney’s  fee  in  connection  with  the  as-yet \nunpaid  portion  of  the  permanent  partial  disability  benefits  tied  to  the  nine \npercent  (9%)  impairment  rating  that  the  parties  have  stipulated  was \naccepted and is being paid out. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness at the hearing. \n\nALLMON – H302292 \n \n7 \n In  addition  to  the Prehearing Order  discussed  above,  exhibits  admitted  into \nevidence in this case were Claimant’s Exhibit 1,  a  compilation  of  his medical  records, \nconsisting  of a  cover  sheet, an index  page,  and 49 numbered  pages  thereafter; \nClaimant’s Exhibit 2, non-medical  records,  consisting of a  cover  sheet,  an  index  page, \nand five numbered pages thereafter; and Respondents’ Exhibit 1, an indemnity payout \nhistory on this claim, consisting of six pages. \nAnalysis of Issues \nA. Compensable Consequence-Back \n Introduction.  As the parties have stipulated, Claimant sustained a compensable \ninjury  to  his right ankle  injury on  March  24,  2023, while  working  for  Respondent \nPrimetals Technologies USA LLC (“Primetals”).  In this action, he is seeking, inter alia, \ntreatment  of a  back injury that  he  claims  is  a  compensable  consequence  of  his  ankle \ninjury. \n Standards.  If an injury is compensable, every natural consequence of that injury \nis  likewise  compensable.   Air  Compressor  Equip.  Co.  v.  Sword,  69  Ark.  App.  162,  11 \nS.W.3d 1  (2000); Hubley v. Best West. Governor’s Inn,  52  Ark. App. 226,  916  S.W.2d \n143  (1996).    The  test  is  whether  a  causal  connection  between  the  two  (2)  episodes \nexists.  Sword, supra; Jeter v. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998).  \nThe existence of a causal connection is a question of fact for the Commission.  Koster \nv. Custom Pak & Trissel, 2009 Ark. App. 780, 2009 Ark. App. LEXIS 947.  It is generally \na  matter  of  inference,  and  possibilities  may  play  a  proper  and  important  role  in \nestablishing  that  relationship.   Osmose  Wood  Preserving  v.  Jones,  40  Ark.  App.  190, \n\nALLMON – H302292 \n \n8 \n843  S.W.2d  875  (1992).    A  finding  of  causation  need  not  be  expressed  in  terms  of  a \nreasonable   medical   certainty   where   supplemental   evidence   supports   the   causal \nconnection.  Koster, supra; Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, \n137 S.W.3d 421 (2003). \n Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Claimant has the burden of \nproving by  a preponderance  of  the  evidence that  she  sustained a  compensable  injury.  \nThis standard means the evidence having greater weight or convincing force.  Barre v. \nHoffman,  2009  Ark.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212 \nArk. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Evidence.   Claimant,  who  is  56  years  old, testified  that  he  worked  for  Primetals \nfor 21 years.  Prior to March 24, 2023, his physical condition was “healthy.”  But on that \ndate, the following occurred: \nI’d just got through filling up the machine with coolant, turned the water \nhose straight up, and I was going to clean—pick the water hose up.  I went \nto go retrieve my glove so I wouldn’t get metal shavings into my hands, \nand  as  I  was  walking  around  to  get  those,  I  walked  by  a  pallet  that  has \n\nALLMON – H302292 \n \n9 \ncellophane that had been left out, grabbed my boot as I’m walking past it, \nand basically tripped me.  And as I’m trying to keep my balance from \nfalling,  I  broke  my  foot\n7\n and  then  just  more  and  more  impact  on  it \ndamaged it in several—broken several bones before I hit the ground. \n \nHe  was  taken  by  ambulance  to  a  hospital  in  Blytheville.    There,  emergency  room \npersonnel tried unsuccessfully to re-set his fractured ankle.  After Claimant’s right lower \nextremity  was  placed  in  a  temporary  cast,  he  was  transferred  to  Region  One  Medical \nCenter in Memphis that same day. \n Following  three  more  abortive  attempts  to  re-set  his  ankle,  Claimant  had  an \northopedic consultation with Dr. Christopher Cosgrove.  Claimant was discharged from \nthe hospital on March 27, 2023, to await surgery.  The operation took place on April 7, \n2023.    This  involved  placement  of  multiple  pieces  of  metal  hardware  to  repair  his \nfractures.  Claimant  saw  Cosgrove  again  on  April  26,  2023,  and  was  sent  to  physical \ntherapy.  The cast was removed, and he was placed in a boot.  Returning again to Dr. \nCosgrove  on  July  10,  2023,  Claimant  was  directed  to  undergo  additional  therapy.   He \nrelated that during this period, he had “been laid up . . . so there was a lot of issues [he] \nhad  about  just  getting  up  and  down  and—and  being  able  to  move.”    Claimant \nelaborated:    “[b]asically three  months  laying  in  a  recliner  with  my  leg  elevated  to \nmaintain [sic] the swelling and keep an ice pack on it, and, you know, and just not even \ngetting out to—to use the bathroom yet.” \n At the time of the July 2023 visit to Dr. Cosgrove, Claimant requested that he be \nreleased to light duty.  This was granted.  Claimant saw the doctor again on September \n \n \n7\nThe  only  compensable  injury  to  which  the  parties  have  stipulated  involves \nClaimant’s right ankle.  See supra. \n\nALLMON – H302292 \n \n10 \n13, 2023.  On that occasion, Cosgrove examined Claimant’s back.  Claimant explained \nfurther:  “He—we talked about it, the issue of it, ‘cause I was trying to stay off of that leg \nand I’m walking around and all that stuff, it’s—I’m favoring one side all the time and it’s \nstarting to bother me in my back and hip and stuff.”  The following exchange took place: \nQ. When did your back start bothering you? \n \nA. Shortly after I got to work and to constantly favoring that one leg all \nthe time and then being there and then—and then I noticed it.  But \nlast time I went to the—Dr. Cosgrove, I just told him, I said, “Look, \nmy back is killing me.”  I said, “I”—I said, “I’m favoring this leg all \nthe time,” I said, “and I’m trying to stay off this other one it’s just—\nit’s killing my back, my hip.  I’m just’’—I said, “I’m not trying to—”  I \nthink he thought I was trying to ask for some pain pills, and I didn’t \nwant any pain pills.  I just wanted to have—make sure that I’m not \nhurting  myself  doing—favoring  this  one  leg  all  the  time,  that  it’s \nbecoming an issue for me.” \n \nAfter this appointment, Dr. Cosgrove sent Claimant to Dr. Park for the back issue.  He \nsaw  him on  October  24,  2023.    As  a  result  of  that  visit, where  Claimant  underwent  x-\nrays  of  his  back, it  was  recommended  that  he  have physical  therapy.    Park  also \nrecommended  that  he have  an  MRI  of  his  back;  but neither this nor  the  therapy has \ntaken  place,  despite  his  desire  to  have  them.    Claimant  returned  to  him on  March  4, \n2024.      Respondents   have   not   covered   this   visit;   and   the   bill   therefor   remains \noutstanding.  He takes no medication for his back condition. \n In his testimony, Claimant related that his ankle injury has impacted the way he \nwalks and works: \nIt  affects  almost  everything  that  I  do  now  because, where  they  used  to \ndidn’t  have no  problem trying to  move  around,  now  I’m—as  simple  as \ngetting  off  the  forklift  and  on  the  forklift,  I—I  used  to  could  just  jump  up \nthere.  Now I have to go to one particular side and I grab the cage and pull \nmyself up.  Getting into other areas where there’s steps and stuff, I have \n\nALLMON – H302292 \n \n11 \nto watch the way I walk up and down.  And then anything that I’m looking \nfor something down low, I have to try to find a way to squat down to keep \nmy left stiff to where—I just don’t have the ability to bend it and get down \nlike I used to. \n \nDescribing how he ascends and descends stairs, Claimant testified:  “I favor one leg, \nmy left leg, and use it to pick me up and take me down.”  He now limps; and while his \nback pain is not as severe as it was after its onset, “it’s still there.  It’s not going away.”  \nMotor  vehicle  trips  that  last  more  than  one  hour  bother  his  back.    When  asked  during \nthe hearing to indicate the source of his discomfort, he pointed to his lower back, near \nhis belt line. \n Under questioning from the Commission, Claimant related the following: \nQ. When did your back start bothering you? \n \nA. First—the first it started really bothering me, when I was laying that \ndadgum  recliner  being  laid  up  all  the  time  for  them  three  months, \nand  then  when  I  got  to  the  work,  it  seemed  to—it  helped  to  move \naround. \n \nQ. Uh-huh. \n \nA. But  then as  the  day  went  longer  and  my  leg  bothered  me  more,  it \nwas almost like I’m putting myself back in a recliner because I’m \ntrying  to  stay  off  that  leg  all  the  time,  so  then  it  just  kind  of \naggravated my back again. \n \nQ. So—go ahead. \n \nA. If—I’m kind of explaining.  If somebody told you to stay on one leg \nfor hours at a time and—and try to stay off that, which is what I’ve \nhad to do for light work, they told me to stay off that at work, and it \njust—it  was  like  I’m  shifting  one  problem  somewhere  else,  you \nknow.    You’re  trying  to  fix  one  issue  by—and  you’re  causing \nanother is what I feel like I was doing, and that’s what I told Dr. \nCosgrove, so that’s why he set me up a[n] appointment with Dr. \nParker. \n \n\nALLMON – H302292 \n \n12 \nQ. So  you  believe  that  favoring  your  left  leg,  your  uninjured  leg,  over \nyour  right  one  is  what’s  messed  your  back  up,  if  that  what  I’m \nhearing from you? \n \nA. I believe that’s what is causing the issue, yeah. \n \nQ. Did you do anything else during this time period that would explain \nwhy your back would be bothering you? \n \nA. No. \n \nQ. Did it get worse when you went back to work?  You talked about it \nbegan when you were in the recliner while you were convalescing? \n \n. . . \n \nA. Yes, sir. \n \nQ. Did it get worse when you went back to Primetals? \n \nA. It—it’s—when  I  first  got  out  of  the  recliner,  it  was  so—and you’ve \nbeen laid up for three months, it’s sore.  And it seems when I got \nback  to  work,  the  moving  around  helped  me,  but  then  as  I  had  to \nkeep  favoring  that  one  leg  because  of  the  restrictions  and  all  that \nand  because  of  what  it—it  is,  it  started  getting  back  worse  again.  \nYou know what I’m saying? \n \nLater  in  his  testimony,  Claimant  elaborated  that  whatever  back  issues  he  had  from \nextended time spent in his recliner resolved after he had been back at work for a while.  \nBut after resuming his duties at Primetals for a week or two and having to compensate \nfor his right leg by altering his gait, he began having back trouble again.  After dealing \nwith the symptoms for a couple of weeks, when his second visit with Dr. Cosgrove came \naround, he sought help from him, informing him that his back was “killing” him. \n The medical records in evidence reflect that Claimant suffered a right trimalleolar \nfracture/dislocation, and on April 7, 2023, had to undergo an open reduction and internal \nfixation  of  the  medial,  latera,  and  posterior  lip  because  of  the  displaced  and  unstable \n\nALLMON – H302292 \n \n13 \nnature of the fracture.  On July 10, 2023, Dr. Cosgrove released him to light duty, with a \n10-pound  lifting  restriction  and  no  standing/walking  for  more  than  one  hour  without  a \nrest period. \n When  Claimant  saw  Cosgrove  again  on  September  13,  2023,  he  related  the \nfollowing: \nWork is going well per his account.  He does describe having some lower \nback pain than has been progressive in nature as after he has returned to \nwork and feels like this is a compensation injury from unbalanced walking \ndue to his right lower extremity deficits. \n \nThe doctor in the report of the visit noted that Claimant “ambulates with a shortened and \nmildly antalgic gait pattern” and wrote: \nWith  regards  to  the  low  back  pain,  I  do  believe  that  this  is  likely  a \ncompensatory  injury  as  a  result  of  prolonged  unbalanced  walking \ndue  to  his  ankle  rehabilitation.  I  [would]  like  for  him  to  see  one  of  our \nnonoperative  spine  providers  for  an  assessment  and  optimization  of \nmanagement   of   this.  In   the   meantime,   he   is   at   maximal   medical \nimprovement for his right lower leg injury. \n \n(Emphasis added) \n Claimant  saw  Dr.  Park  on  October  24,  2023.    The  report  of  that  visit  reads  in \npertinent part: \nHISTORY OF PRESENT ILLNESS \nMr. Allmon is a 55-year old male who apparently suffered a work injury to \nhis  right  foot  in  late  March  2023.    He  states  that  because  of  his  foot \nfracture on his right foot, it altered his gait pattern.  In June of this year, he \nstarted  having  discomfort  in  his  back.    He  is  not  reporting  any  referred \npain  into  the  lower  extremities.    He  notices  discomfort  particularly  if  he \nassumes a sitting or standing position for any length of time.  On a visual \nanalog scale, he rated his discomfort between a 2 and 4 out of a possible \n10 score. \n \n. . . \n \n\nALLMON – H302292 \n \n14 \nPHYSICAL EXAMINATION \n \n. . . \n \nExamination of the lower extremities revealed motor strength to be good.  \nSensation   was   intact   to   light   touch.      Deep   tendon   reflexes   were \nsymmetrical.  There was no evidence of clonus.  There were negative root \ntension  signs  of  both  lower  extremities.    Range  of  motion  of  the  lumbar \nspine was normal.  There was some discomfort with lumbar extension and \nhyperextension.  There was no appreciable pain with side bending motion.  \nHe ambulated without antalgia. \n \nRADIOGRAPHIC EVALUATION/INTERPRETATION \nAP,  lateral,  oblique  and  spot  films  of  the  lumbar  spine  were  obtained \ntoday.    The  lumbar  vertebrae  were  of  normal  height  and  alignment  other \nthan  for  some  slight  levocurvature.    Intervertebral  disc  heights  were \nmaintained.  The foramen were patent.  The lumbar facets were normal. \n \nMUSCULOSKELETAL IMPRESSION \nOnset of low back pain after suffering a right foot fracture in the workplace \non 03/24/2023.  It is my impression that Mr. Allmon’s low back condition is \na result of pain emanating from posterior elements. \n \n When Claimant went back to Dr. Park on March 4, 2024, he was still presenting \nwith  lower  back  pain.    The  doctor  recommended  a  lumbar  MRI  and  a  possible  spinal \ninjection based on the MRI findings. \n Discussion.   Claimant,  whose  testimony  I  credit,  suffered  a  severe  right  ankle \ninjury  that  necessitated  surgery  and  a  lengthy  convalescence  in  a  recliner.    Once \nClaimant returned to work at light duty, he began favoring his “good leg”—the left one.  \nAs  a  result  of  his  altered  gait,  his  back  began  bothering  him.    He  first  sought \napproached  his  surgeon,  Dr.  Cosgrove,  about  his  back  problem.    The  doctor  in  his \nreport gave his opinion regarding causation:  “With  regards  to  the  low  back  pain,  I  do \nbelieve  that  this  is  likely  a  compensatory  injury  as  a  result  of  prolonged  unbalanced \nwalking  due  to  his  ankle  rehabilitation.”  I  credit  this  opinion.    Medical  evidence  is  not \n\nALLMON – H302292 \n \n15 \nordinarily  required  to  prove  causation.   Wal-Mart  v.  Van  Wagner,  337  Ark.  443,  990 \nS.W.2d 522 (1999).  But if a medical opinion is offered on causation, the opinion must \nbe  stated  within  a  reasonable  degree  of  medical  certainty.    Ark.  Code  Ann.  §  11-9-\n102(16)(B)  (Repl. 2012).   It  should  also  be noted that  in  interpreting this provision,  the \nArkansas  Supreme  Court  in Freeman  v.  Con-Agra  Frozen  Foods,  344  Ark.  296,  40 \nS.W.3d 760 (2001) stated:  “This court has never required . . . that the magic words \n‘within  a  reasonable  degree  of  medical  certainty’  even  be  used  by  the  doctor.”  \nHowever, where the only evidence of a causal connection is a speculative and indefinite \nmedical  opinion,  it  is  insufficient  to  meet  the  claimant's  burden  of  proving  causation.  \nCrudup  v.  Regal  Ware,  Inc.,  341,  Ark.  804,  20  S.W.3d  900  (2000); KII  Construction \nCompany v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002).  Here, use of the term \n“likely” by Dr. Cosgrove complies with the statute. \n The preponderance of the credible evidence, highlighted above, establishes that \nClaimant’s back injury was a natural consequence of his stipulated compensable right \nankle   injury.      The   causal   connection   between   the   two   has   been   established.  \nAccordingly,  he  had  met  his  burden  of  proving  that  his  back  injury  is  a  compensable \nconsequence. \nB. Reasonable and Necessary Treatment-Back \n Introduction.    Claimant  has alleged  that  he  is  entitled  to  reasonable  and \nnecessary treatment of his back injury. \n Standards.   Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee such medical treatment as may \n\nALLMON – H302292 \n \n16 \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.  I find that Claimant has proven by a preponderance of the evidence \nthat  he  is  entitled  to  reasonable  and  necessary  medical  treatment  of  his  compensable \nback  injury,  to  include  the  MRI and  physical  therapy that  have  been recommended \n\nALLMON – H302292 \n \n17 \nsupra.    Moreover,  I  have  reviewed  his  treatment  records  of  his  back  that  are  in \nevidence, and I find that he has proven by a preponderance of the evidence that all of it \nreflected therein was reasonable and necessary. \nC. Compensable Consequence-Atrophy \n Introduction.  In addition to his alleged back condition, Claimant has asserted that \nhe  also  suffered  a  compensable  consequence  in  the  form  of atrophying  of  his  right \nlower extremity above the knee. \n Evidence.  Per Claimant, his right lower extremity was “good, good to go” before \nhe suffered his stipulated compensable right ankle injury.  After the cast was removed in \nthe  weeks  after  his  surgical  procedure,  however,  he  was  shocked  to  see  the  withered \ncondition of his right lower extremity.  He described its appearance as being “kind of like \n[his] arm” instead of his leg.  Its  shrunken  appearance was  due  to  its  disuse.    For \nexample, Claimant’s testimony concerning his physical difficulties in performing his  job \nduties since going back to work included this passage: \nWhen you’re climbing up on a forklift, it’s pretty high so you have to use a \nlot  of  leg  muscles,  but  one  side  of  the  forklift  to  the  other,  depending  on \nwhat leg it is, there’s—you’ll have to use that leg muscle and I don’t have \nthat leg muscle in it when I get on that side because of the way it’s injured.  \nSo   what   I   do   is   have   to   use   my   body   weight—body   muscles   to \ncompensate for my leg. \n \nLater in his testimony, the following exchange took place: \nQ. Now, the problems you’re having doing your daily routine, chores or \nat work, is there more than your ankle affected?  Could you tell us \nhow  the  other  part  of  your  leg  affects  these  things  that  you’ve \ndescribed? \n \nA. Just no strength in my leg.  Just I don’t have— \n \n\nALLMON – H302292 \n \n18 \nQ. Is that your leg above and below the knee? \n \nA. My—my thigh here.  I don’t have any—how to explain it.  If you take \na step up on a step, you use your thigh to push yourself down, pick \nyourself up, and if I put my bad leg on a step and it’s like—there’s \nnothing  there,  so  I  pull  it  back  down  and  put  my  left  foot  back  up \nthere  and  then  pull my  right  leg up.    That’s  the  only  way  I  can \nexplain.   And that’s some of the issues also with the forklift and \ngetting  down  into  the  pits  where  the  machines  are  at  is  I  end  up \nalways  favoring  the  one  leg  because  the  other  leg’s—it  lets  me \ndown.  It won’t do what I need it to do. \n \nQ. Is your—is your thigh smaller than it was before? \n \nA. Yeah.  In my mind, it’s—you know, it— \n \nQ. Besides weak, it’s just diminished in size, is that correct? \n \nA. Yeah. \n \n Claimant’s testimony was that the difference in circumference between his right \nand  left  thighs  is  noticeable  to  both  him  and  his  spouse.    The  following  exchange \noccurred: \nQ. Any indication that your right thigh is not going to increase now that \nyou’re up and about?  How do you know it’s permanent? \n \nA. I don’t know if anything’s permanent.  That’s why I want to have—I \ndon’t know if anything is permanent, you know what I mean?  I \nneed to—that’s why I want to do something about it. \n \nHe was of the opinion that, based on his own observation, that the difference between \nhis two thighs is more than the one centimeter measurement reflected in his evaluation. \n The  medical  records  in  evidence  reflect  that  on  May  22,  2024,  Claimant \nunderwent  a  functional  capacity  evaluation  by  Casey  Garretson,  OTD,  OTR/L,  CFE, \nCEAS;  and  Charles  Davidson,  M.Ed.,  CEAS,  CFE,  CSDA,  of  Functional  Testing \nCenters, Inc.  That report reads in pertinent part: \n\nALLMON – H302292 \n \n19 \nIMPAIRMENT EVALUATION SUMMARY – Lower Extremity \n \n. . . \n \nPlease  review  the  following  Impairment  Evaluation.    The  evaluation  was \nconducted  based  on  The  AMA  Guides  to  the  Evaluation  of  Permanent \nImpairment, Fourth Edition (1992) using Objective findings. \n \n*Under  Arkansas workers[’]  compensation  law,  a  determination  of  the \nexistence and  extent  of  physical  impairment  must  be  supported  by \nobjective  and  measurable  findings.    Arkansas  code  also  prohibits  use  of \npain  or  complaint  of  pain  in  assessing  permanent  impairment.   Objective \nfindings  are  defined under  Arkansas  code  as  those  which  cannot  come \nunder  the  voluntary  control  of  the  patient,  and  specifically  exclude  pain, \nstraight-leg -raising  tests,  and  range-of-motion  tests.    In  other  words, \nalthough  pain,  active  range-of-motion,  and  straight-leg-raising  tests  are \ncriteria  used  in  the  Guidelines,  they  may  not  be  used  in  Arkansas  for \nassessment of impairment in Arkansas workers’ compensation cases. \n \nDetermination  of  impairment  was  based  on  objective  findings  (Objective \nfinding is defined as a finding that cannot come under the voluntary control \nof  the  patient)  for  potential  impairment  utilizing  Section  3.2:    The  Lower \nExtremity (p[p]. 75-91):  Anatomic, diagnostic, and functional methods are \nused  in  evaluating  permanent  impairments  of  the  lower  extremity.    While \nsome  impairments  may  be  evaluated  appropriately  by  determining  the \nrange of motion of the extremity, others are better evaluated by the use of \ndiagnostic categories or according to test criteria. \n \n. . . \n \n3.2c – Muscle Atrophy (Unilateral) using Table 37 (p.77):  Mr. Allmon did \nhave a documented girth deficit of the thigh as noted below. \n \nInstruction:    The  Thigh  circumference  is  measured  10  cm  above  the \npatella  with  the  knee  fully  extended  and  the  muscle  relaxed.    The  Calf \ncircumference  is  measured  at  the  maximum  circumference  region  and  is \ncompared  to  the  same level  on  the  contralateral  side.    The  [G]uides \nindicate  that  neither  limb  should  have  swelling  or  varicosities  that  would \ninvalidate the measurements.  If the unaffected limb has had prior injury or \nany  other  varicosity,  then  muscle  atrophy  would  not  be  accurate  for \npurposes of impairment. \n\nALLMON – H302292 \n \n20 \n \nMuscle Atrophy Deficit cm Whole Person % Lower Extremity % \nThigh 1 cm 1% 3% \nCalf 0 cm 0% 0% \n \n Discussion.  I credit Claimant’s testimony that disuse of his right lower extremity \nhas led to its being atrophied.  This is corroborated by Garretson and Davidson, whose \nmeasurements of Claimant’s thighs revealed that the right is 1 cm smaller than the left.  \nThis  is  an  injury  that  under Sword and Hubley, supra,  is  a  natural  consequence  of \nClaimant’s stipulated compensable right ankle injury.  The  causal  connection  between \nthe  right  ankle  injury  and the  atrophying  of  his  thigh has  been  established.   Therefore, \nhe has proven that the latter is a compensable consequence of the former. \nD. Impairment Rating-Thigh Atrophy \n Introduction.  Claimant has alleged that is entitled to the impairment rating that he \nhas been assigned in connection with the atrophying of his right thigh. \n Standards.      Permanent   impairment,   generally   a   medical   condition,   is   any \npermanent  functional  or  anatomical  loss  remaining  after  the  healing  period  has  been \nreached.  Ouachita Marine v. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969).  Pursuant \nto  Ark.  Code  Ann.  §  11-9-522(g)  (Repl.  2002),  the  Commission  adopted  the  AMA \nGuides as an impairment rating guide.  See AWCC R. 099.34.  A determination of the \nexistence  or  extent  of  physical  impairment  must  be  supported  by  objective  and \nmeasurable  physical  or  mental  findings.    Ark.  Code  Ann.  §  11-9-704(c)(1)(B)  (Repl. \n2012).    Permanent  benefits  are  to  be  awarded  only  following  a  determination  that  the \ncompensable  injury  is  the  major  cause  of  the  disability  or  impairment.   Id.  §  11-9-\n102(F)(ii).  “Major cause” is defined as “more than fifty percent (50%) of the cause,” and \n\nALLMON – H302292 \n \n21 \na finding of major cause must be established by a preponderance of the evidence.  Id. § \n11-9-102(14).    Any  medical  opinion  must  be  stated  within  a  reasonable  degree  of \nmedical certainty.  Id. § 11-9-102(16)(B). \n Discussion.  The Commission is authorized to accept or reject a medical opinion \nand  is  authorized  to  determine  its  medical  soundness  and  probative  value.   Poulan \nWeed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); Green Bay Packing v. \nBartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999).  After consideration of the evidence, \nI credit the report of Garretson and Davidson, quoted above.  Claimant has proven by a \npreponderance  of  the  evidence  that  he  is  entitled  to  an  impairment  rating  of  three \npercent  (3%)  to  his  right  lower  extremity,  and  permanent  partial  disability  benefits \npursuant thereto, in connection with the compensable atrophying of his right thigh.  In so \ndoing,  I  find  that  the  preponderance  of  the  evidence  establishes  that  his  compensable \nconsequence—in the form of the atrophying of his right thigh—is the major cause of his \nimpairment. \nE. Attorney’s Fee \n Introduction.  As part of this action, Claimant is seeking a controverted attorney’s \nfee  on  the  permanent  partial  disability  benefits  he  is  owed  that  are  related  to  the  two \nimpairment ratings he has been assigned in the course of this matter. \n Discussion.   One  of  the  purposes  of  the  attorney's  fee  statute  is  to  put  the \neconomic  burden  of  litigation  on  the  party  who  makes  litigation  necessary.   Brass  v. \nWeller,  23  Ark.  App.  193,  745  S.W.2d  647  (1998).    Since  Claimant  has  proven  herein \nhis entitlement to permanent partial disability benefits in accordance with the impairment \n\nALLMON – H302292 \n \n22 \nrating  that  was  assigned  for  the compensable atrophying  of  his right  thigh—three \npercent (3%) to the lower extremity—and because Respondents have controverted this, \nhe has shown that his attorney should be awarded a controverted fee at their expense \nunder  Ark.  Code  Ann.  §  11-9-715  (Repl.  2012)  on  those  indemnity  benefits  awarded \nherein. \n As for Claimant’s quest for a fee on the as-yet unpaid permanent partial disability \nbenefits related to the nine percent (9%) rating assigned for his stipulated compensable \nright  ankle  injury,  I  do  not  find  this  to  be  valid.    As  the  parties  have  stipulated, \nRespondents  accepted  this  rating  and  are  paying  it  out.   The  evidence  reflects  that \nClaimant  was  assigned  this  rating  by  Garretson and  Davidson on  May  22,  2024.  \nClaimant’s credible testimony  was  that  the  week  before  the  hearing,  he  received  a \ncheck  from  Respondents;  and  two  more  checks  arrived  a  day  or  two  thereafter.    The \npayout history shows that this first check, in the amount $1,746.54, was issued on June \n5, 2024—14 days after he was rated.  Two more—each in the amount of $626.00 (his \nstipulated  permanent  partial  disability  rate)  were  issued  seven  days  thereafter.    When \nClaimant  called  Respondents  about  this,  they  confirmed  that  these  monies  were \npayments  toward  his  nine  percent  (9%)  impairment  rating.    Yet  another check,  for  the \nsame  amount,  was  issued  the  following  week—just  two  days  before  the  hearing.  \nNeither the rating nor any portion of those related benefits have been controverted; they \nare  being  paid  in  due  course.    No  litigation  thereon  has  been  necessary  under Brass, \nsupra.  Accordingly, no attorney’s fee is owing in connection with this; Claimant has not \nestablished his entitlement thereto. \n\nALLMON – H302292 \n \n23 \nCONCLUSION AND AWARD \n Respondents are directed to pay/furnish benefits in accordance with the findings \nof fact set forth above.  All accrued sums shall be paid in a lump sum without discount, \nand this award shall earn interest at the legal rate until paid, pursuant to Ark. Code Ann. \n§ 11-9-809 (Repl. 2002).  See Couch v. First State Bank of Newport, 49 Ark. App. 102, \n898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a  25  percent  (25%)  attorney’s  fee  awarded \nherein,  one-half  of  which  is  to  be  paid  by  Claimant  and  one-half  to  be  paid  by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012).  See Death & \nPermanent  Total  Disability  Trust  Fund  v.  Brewer,  76  Ark.  App.  348,  65  S.W.3d  463 \n(2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":40754,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H302292 JAMES ALLMON, EMPLOYEE CLAIMANT PRIMETALS TECH. USA LLC, EMPLOYER RESPONDENT FARMINGTON CASUALTY CO., CARRIER RESPONDENT OPINION FILED AUGUST 21, 2024 Hearing before Administrative Law Judge O. Milton Fine II on June 21, 2024, in Jonesboro, Craighead ...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["ankle","back","knee","hip","fracture","lumbar"],"fetchedAt":"2026-05-19T22:50:19.534Z"},{"id":"alj-H105747-2024-08-21","awccNumber":"H105747","decisionDate":"2024-08-21","decisionYear":2024,"opinionType":"alj","claimantName":"Carissa Hetzel","employerName":"Arkansas Heart Hospital, LLC","title":"HETZEL VS. ARKANSAS HEART HOSPITAL, LLC AWCC# H105747 August 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Hetzel_Carissa_H105747_20240821.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Hetzel_Carissa_H105747_20240821.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NO. H105747 \n \nCARISSA G. HETZEL,  \nEMPLOYEE  CLAIMANT \n \nARKANSAS HEART HOSPITAL, LLC, \nEMPLOYER                                                                                                           RESPONDENT \n \nAMERISURE INS. CO., \nCARRIER/TPA                                                                                                      RESPONDENT \n \n \n \nOPINION FILED AUGUST 21, 2024 \n \nHearing  before  Administrative  Law  Judge Steven  Porch on August 20,  2024, in Little  Rock, \nPulaski County, Arkansas. \n \nClaimant represented herself, Pro se, Little Rock, Arkansas. \n \nThe Respondents were represented  by Ms.  Karen  H.  McKinney,  Attorney  at  Law, Little  Rock, \nArkansas. \n \nI.  BACKGROUND \nThis matter comes before the Commission on a Motion to Dismiss filed by the Respondent \non June 24, 2024. The Claimant worked as a dietary aide for Respondent/Employer. Admitted into \nevidence is  Respondents’ Exhibit  1, Motion  to  Dismiss  with  exhibits  attached,  consisting  of 7 \npages, Respondents’ Exhibit 2, June 26, 2024, notice letter for Motion to Dismiss, consisting of 1 \npage, and Respondents’ Exhibit 3, Hearing Notice, consisting of 1 page. I have also blue-backed \nFebruary 8,  2022,  hearing  request  memorandum, postal  return receipt  dated  July 11, 2024, and \nMelanie  Miller  email  dated  August  19,  2024,  involving  a  phone  call  from  the  Claimant, as \ndiscussed infra. \nThe record reflects on July 19, 2021, a Form AR-1 was filed alleging Claimant allegedly \ninjured  the  left  side  of  her  head  behind  the  ear. Claimant’s injury occurred on March  29,  2021. \n\nHETZEL AWCC No. H105747 \n \n 2 \nClaimant reported the injury to Respondent/Employer on June 29, 2021. Respondents filed a Form \nAR-2,  on July 19,  2021, controverting the  claim in  its  entirety. Claimant on  August  30,  2021, \nrequested to have a hearing because her claim was denied by Respondents. On September 9, 2021, \nfiled a Legal Advisor Claimant Questionnaire alleging her claim is more than $2,500.00, but would \nlike  to  mediate  the  claim  before  a  full  hearing. The  Respondents  in  an  email  dated  January  14, \n2022,  made  clear  that  they  will  not  change  their  position  and  accept  the  claim. A  legal  advisor \nconference was held with no resolution and the file was returned to general files since contact had \nbeen lost with Claimant to continue the hearing process.  \nThe Respondents next filed a Motion to Dismiss on June 24, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The  Claimant  was  sent,  certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss on June 26, 2024, to her last known address of record. The certified \nnotice was not claimed by Claimant per postal receipt dated July 11, 2024. Likewise, the notice \nsent regular U.S. Mail was not returned to the Commission. Claimant did not respond to the notice \nin writing as required. Thus, in accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of Respondents’ Motion to Dismiss hearing date at her current address \nof record via the United States Postal Service (USPS), First Class Certified Mail, Return Receipt \nRequested, and regular First-Class Mail, on July 19, 2024. The certified notice was not claimed by \nthe  Claimant per postal  receipt. The  regular  First-Class  hearing  notice  was  not  returned  to  the \nCommission. However, Claimant contacted my assistant, Melanie Miller, on August 19, 2024, via \ntelephone call, and stated that she does not want to pursue her  claim and does not object to the \ndismissal. She further stated that she will not be at the hearing. The hearing took place on August \n20, 2024, and the Claimant did not show up to the hearing. \n \n\nHETZEL AWCC No. H105747 \n \n 3 \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary record, I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2. All parties received reasonable notice of the August 20, 2024, Motion to Dismiss \nhearing date. \n \n3. Respondents did prove by a preponderance of the evidence that Claimant has failed \nto prosecute her claim under AWCC R. 099.13. \n \n4. The Motion to Dismiss should be, and hereby is, granted. \n \n5.         This claim is hereby dismissed without prejudice.     \n \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Respondents must prove by a preponderance \nof the evidence that dismissal should be granted. The standard “preponderance of the evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, \n326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \nConsistent with AWCC Rule 099.13, as well as our court of appeals’ ruling in Dillard vs. \nBenton  County  Sheriff’s  Office,  87  Ark.  App.  379,  192  S.W.3d  287  (Ark.  App.  2004),  the \nCommission scheduled and conducted a hearing on the Respondents’ Motion to Dismiss. I do find \n\nHETZEL AWCC No. H105747 \n \n 4 \nby the preponderance of the evidence, introduced at the hearing and contained in the record, that \nClaimant has neither made a bona fide request for a hearing nor has she taken any action to pursue \nher claim prior to the hearing date. Moreover, she has made clear to the Commission that she does \nnot want to pursue her claim any further and does not object to a dismissal. Thus, I find that the \nRespondents have proven by the preponderance of the evidence that its’ Motion should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted and this claim is dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6581,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO. H105747 CARISSA G. HETZEL, EMPLOYEE CLAIMANT ARKANSAS HEART HOSPITAL, LLC, EMPLOYER RESPONDENT AMERISURE INS. CO., CARRIER/TPA RESPONDENT OPINION FILED AUGUST 21, 2024 Hearing before Administrative Law Judge Steven Porch on August 20, 2024, in Little R...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:21.680Z"},{"id":"alj-H208659-2024-08-20","awccNumber":"H208659","decisionDate":"2024-08-20","decisionYear":2024,"opinionType":"alj","claimantName":"Yolanda Constancio","employerName":"Express Services, Inc","title":"CONSTANCIO VS. EXPRESS SERVICES, INC. AWCC# H208659 August 20, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CONSTANCIO_YOLANDA_H208659_20240820.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CONSTANCIO_YOLANDA_H208659_20240820.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H208659 \n \nYOLANDA CONSTANCIO, Employee CLAIMANT \n \nEXPRESS SERVICES, INC., Employer RESPONDENT \n  \nAIU INS. CO., Carrier RESPONDENT \n \n OPINION/ORDER FILED AUGUST 20, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented  by MARK  ALAN  PEOPLES,  Attorney, Little  Rock,  Arkansas;  although \nnot present at hearing. \n \nRespondent represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn December 13, 2022, Laura Beth York, the claimant’s previous attorney, filed a Form \nAR-C  requesting  various  compensation  benefits;  however,  no  hearing  was  requested. In  March \n2023 Ms. York was allowed to withdraw as the claimant’s attorney. On September 2, 2023, \nMark  Alan  Peoples,  the  claimant’s  current  attorney,  filed  a  Form  AR-C  requesting  various \ncompensation  benefits;  however,  no  hearing  was  requested. No  further  action  was  taken  in  this \nclaim. \nOn June 3, 2024, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for July  18,  2024.  Notice  of  that \nhearing was sent to the claimant by certified mail, return receipt requested on June 6, 2024. That \nnotice was returned by the United States Postal Department with the notation, “Return to Sender.  \nUnclaimed.  Unable to Forward.” Mr. Peoples indicated by email on June 6, 2024, that he would \n\nConstancio – H208659 \n2 \n \nwaive his appearance at the hearing and further indicated that he had no objection to the Motion \nto Dismiss “WITHOUT prejudice.”    \n After  my  review  of  respondent’s  Motion  to  Dismiss, Mr. Peoples’ response  thereto  that \nhe had  no  objection  to  the  motion  to  dismiss  without  prejudice,  and  the claimant’s failure  to \nappear  at  the  scheduled  hearing, as  well  as all  other  matters  properly  before  the  Commission,  I \nfind that respondent’s Motion to Dismiss this claim should be and hereby is granted pursuant to \nA.C.A. §11-9-702(a)(4).  This dismissal is without prejudice.     \n IT IS SO ORDERED. \n     \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2412,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H208659 YOLANDA CONSTANCIO, Employee CLAIMANT EXPRESS SERVICES, INC., Employer RESPONDENT AIU INS. CO., Carrier RESPONDENT OPINION/ORDER FILED AUGUST 20, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Fort Smith, Sebastian County, Arkansas. ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:13.188Z"},{"id":"alj-H306256-2024-08-20","awccNumber":"H306256","decisionDate":"2024-08-20","decisionYear":2024,"opinionType":"alj","claimantName":"Donald Schiffelbein","employerName":"Tyson Sales & Distribution","title":"SCHIFFELBEIN VS. TYSON SALES & DISTRIBUTION AWCC# H306256 August 20, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SCHIFFELBEIN_DONALD_H306256_20240820.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCHIFFELBEIN_DONALD_H306256_20240820.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H306256 \n \nDONALD SCHIFFELBEIN, Employee     CLAIMANT \n \nTYSON SALES & DISTRIBUTION, Employer    RESPONDENT \n \nTYNET CORPORATION Carrier/TPA      RESPONDENT \n \n \n OPINION FILED AUGUST 20, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by J. MATTHEW MAULDIN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn September  26,  2023,  the  claimant  filed  an  AR-C  requesting  various  compensation \nbenefits  in  which he alleged injuries  to  his  brain,  eyes,  heart  and  lungs  due  to  diesel  exhaust \nexposure on or about June 26, 2023. There has been no request for a hearing. Following the AR-\nC  filing  in  Arkansas,  the  claimant  pursued  his  claim  in  other  jurisdictions  including  Missouri \nand/or Kansas. No further action has been taken with regard to the Arkansas claim. \n On June 14, 2024, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for August  6,  2024.  Notice  of  that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on July  3,  2024. \nUnited States Postal Department records indicate that claimant received and signed for the notice \non July 12, 2024. On July 30, 2024, the claimant called the Workers’ Compensation Commission \n\nSchiffelbein – H306256 \n \n-2- \noffice  in  Springdale,  Arkansas, and  spoke  with  my administrative assistant, indicating  that he \nwill not be pursuing his claim in Arkansas and has no objection to the dismissal of his Arkansas \nclaim. \n After a review of the respondents’ Motion to Dismiss, the claimant’s lack of desire to \npursue his claim, and his failure to appear at the  scheduled hearing, as  well as all other matters \nproperly before the Commission, I find that respondents’ Motion to Dismiss this claim should be \nand hereby is granted pursuant to Commission Rule 099.13. This dismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2796,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H306256 DONALD SCHIFFELBEIN, Employee CLAIMANT TYSON SALES & DISTRIBUTION, Employer RESPONDENT TYNET CORPORATION Carrier/TPA RESPONDENT OPINION FILED AUGUST 20, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:15.323Z"},{"id":"alj-H204558-2024-08-20","awccNumber":"H204558","decisionDate":"2024-08-20","decisionYear":2024,"opinionType":"alj","claimantName":"Vincent Walker","employerName":"Greenwood School Maintenance","title":"WALKER VS. GREENWOOD SCHOOL MAINTENANCE AWCC# H204558 August 20, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WALKER_VINCENT_H204558_20240820.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALKER_VINCENT_H204558_20240820.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H204558 \n \nVINCENT WALKER, Employee      CLAIMANT \n \nGREENWOOD SCHOOL MAINTENANCE, Employer  RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier/TPA    RESPONDENT \n \n \n OPINION FILED AUGUST 20, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondent represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n The claimant in this matter is a 62-year-old male who sustained compensable injuries to \nhis shoulders bilaterally, ribs, and right thumb on June 16, 2022, when he fell from a ladder. On \nthat same day a form AR-N was signed by the claimant. The claimant hired an attorney and on \nJune 21, 2023, a form AR-C was signed by the claimant. The claimant’s AR-C was file-marked \nby the Commission on July 24, 2023, and requested, among other benefits, additional temporary \ntotal disability and additional medical treatment. The claimant’s AR-C is found at Respondents’ \nExhibit 1, page 5.  \n A prehearing conference was conducted on September 11, 2023, with this administrative \nlaw judge. A prehearing order was issued as a result of that prehearing conference on September \n12, 2023. Following are portions of that prehearing order: \n\nWalker – H204558 \n \n-2- \nBy   agreement   of   the   parties   the   following   stipulations   were \nsubmitted to the Commission for its consideration: \n \n1. The Arkansas Workers' Compensation \nCommission has jurisdiction of this claim. \n2. The  relationship  of  employee-employer-carrier \nexisted between the parties on June 16, 2022. \n3.  The  claimant  sustained  a  compensable  injury  to \nhis  bilateral  shoulders,  ribs,  and  right  thumb  on  or \nabout June 16, 2022. \n4. The claimant’s weekly compensation rates will \nbe determined at a later date. \n \nBy agreement of the parties the issues to litigate are limited to the \nfollowing: \n \n1. Whether Claimant is entitled to \ncontinued/additional    medical    treatment    for    his \ncompensable left shoulder injury. \n2.  Whether  Claimant  is  entitled  to  temporary  total \ndisability   benefits   from   January   24,   2023,   to \nFebruary 8, 2023. \n3.  Whether  Claimant’s  attorney  is  entitled  to  an \nattorney fee. \n \nThe claimant's contentions are as follows: \n“a.   The   Claimant   contends   that   the   incident \ninvolving the claimant falling off of a bucket is not \nan  independent  intervening  event  that  caused  new \ninjury to  the  claimant’s  left  shoulder. Rather,  the \nclaimant   contends   that   his   shoulder   was   still \nsymptomatic,   he   was   still   under   active   medical \ntreatment  and  that  any  trauma  that  occurred  to  his \nshoulder  in  regard  to  the  bucket  incident  was  not \nsufficient to cause a new injury to his left shoulder. \n \nb.  The  Claimant  contends  that  he  is  entitled  to \ntemporary total disability benefits from January  24, \n2023   through   February   8,   2023   and   reasonably \nnecessary   medical   treatment   regarding   his   left \nshoulder. \n \nc.   The   Claimant   contends   that   his   attorney   is \nentitled to an appropriate attorney’s fee regarding \n\nWalker – H204558 \n \n-3- \nany  disability  benefits  due  the  claimant  regarding \nhis left shoulder injury. \n \nd.  The  Claimant  contends  that  he  has  sustained \npermanent  impairment  regarding  his  left  shoulder \nbut   that   it   is   premature   to   address   that   issue. \nAccordingly,   the   claimant   reserves   the   issue   of \npermanent  impairment/disability  and  contends  that \nhe  is  entitled  to  additional  compensation  regarding \nthat  issue  at  some  point  in  the  future  and  that \ntherefore that issue is preserved.” \n \nThe respondents’ contentions are as follows: \n“Respondents  contend  that  all  appropriate  benefits \nhave   been   and   are   being   paid   with   regard   to \nClaimant’s   injuries   sustained   on   6/16/22. \nClaimant’s  current  need  for  treatment  for his  left \nshoulder is due to a new injury sustained at home.” \n \nAs  a  result  of  the  prehearing  conference,  a  hearing  was  set  for  November  16,  2023,  in  Fort \nSmith,  Arkansas. On November 8, 2023, the claimant’s attorney sent a letter by  email to  the \nCommission requesting the hearing be cancelled so that he could take the deposition of Dr. Terry \nClark. \n On December 14, 2023, the claimant deposed Dr. Clark regarding a letter he wrote about \nthe claimant’s condition. Thereafter, on January  29, 2024, this administrative law judge entered \nthe Agreed Order that the parties requested. Following is a portion of that Agreed Order: \n1. Per  the  Prehearing  Order  entered  on  September  12,  2023, \nClaimant   currently   has   a   claim   pending   before   the   Arkansas \nWorker’s  Compensation  Commission  concerning:  “1.  Whether \nClaimant  is  entitled  to  continued/additional  medical  treatment  for \nhis  compensable  left  shoulder  injury.  2.  Whether  Claimant  is \nentitled  to  temporary  total  disability  benefits  from  January  24, \n2023,  to  February  8,  2023.  3.  Whether  Claimant’s  attorney  is \nentitled to an attorney fee.” \n \n\nWalker – H204558 \n \n-4- \n2.  The  parties  have  reached  an  agreement  thereby  alleviating  the \nneed  for  a  decision  from  the  Commission  on  the  aforementioned \nissues. \n \n3. Respondents have requested proper billing forms from Dr. Greg \nJones’ office concerning the surgery he performed on Claimant’s \nleft shoulder on January 24, 2023. Payment will be made pursuant \nto the Arkansas fee schedule. Respondents have also requested that \nClaimant  provide  any  out-of-pocket  expenses  associated  with  the \nsurgery and follow up care. \n \n4.  Respondents  have  requested  Claimant’s  post-injury  wages  to \npay the appropriate temporary disability benefits and the attorney’s \nfee.   Payment   will   be   made   promptly   upon   receipt   of   this \ndocumentation. \n \n On February 13, 2024, another Agreed Order was issued by this administrative law judge. \nFollowing is a portion of that order: \n1. Claimant  underwent  left  shoulder  surgery  with  Dr.  Greg  Jones \non  January  24,  2023,  and  an  Agreed  Order  has  previously  been \nentered  concerning  his  entitlement  to  the  medical  treatment  and \ntemporary disability benefits associated with the same. \n \n2. A permanent impairment rating has not been assigned associated \nwith the left shoulder surgery performed on January 24, 2023, but \nthe parties have reached an agreement thereby alleviating the need \nfor a decision from the Commission on this issue. \n \n3.  Respondents  mutually  agree  and  stipulate  to  Claimant’s \nentitlement to an 8% rating to the body as a whole. \n \n4. Upon entry of this Order, Respondents shall make the following \npayments to Claimant, Vincent Walker, and his attorney, Eddie H. \nWalker, Jr.: \n \n$13,104.00 to Claimant \n$3,744.00 to Eddie H. Walker, Jr. \n \n5.  The  parties  jointly  agree  that  payment  as  outlined  above  fully \nand  finally  extinguishes  any  and  all  claims  Claimant  may  have  to \npermanent    partial    impairment    associated    with    the    surgery \nperformed on January 24, 2023. \n \n\nWalker – H204558 \n \n-5- \n The  respondent  filed  a Motion  to  Dismiss  for  Failure  to  Prosecute,  which  is  the  matter \npresently before the Commission, on March 8, 2024, bringing that motion under both Arkansas \nWorkers’  Compensation  Commission  Rule 099.13  and  A.C.A. §11-9-702.  However,  at  the \nhearing  in  this  matter  on  May  23,  2024,  the  respondent  amended  the  motion  to  only  seek  a \ndismissal under Rule 099.13 as follows: \nMS.  WOOD:  Our  Motion  to  Dismiss  does  indicate  that  it  is \nseeking it under both Rule 13 and 11-9-702. I would like to amend \nthat  and  just  seek  it  under Rule  13  and  to  acknowledge  that  a \nhearing  has  been  requested  previously.  However,  as  we  sit  here \ntoday, there is nothing before the Commission to address. There is \nno  hearing  request  that  has  been  made.  It  is  our  position  that  the \nfiling  of  a  Form  C  in  workers’  comp  is  the  equivalent  of  a \ncomplaint  in  Circuit  Court.  It  can’t  just  sit  there  forever \nindefinitely. If there is something to litigate, it needs to be done. It \nis  prejudicial  to  my  client  to  continue  to  keep  it  open.  Witnesses \ndisappear,  I mean there  are lots of reasons, but essentially if there \nis something to litigate, it should be done. \n \n On  April  8,  2024,  the  claimant’s  attorney  authored  the  following  letter  to  the \nCommission: \nThe  Claimant  hereby  files  a  claim  for  additional  compensation  in \nthe form of medical benefits. \n \nAlthough the Claimant sustained injury to both shoulders, he only \nunderwent surgery in regard to one shoulder. \n \nIt  is  believed  that  because  the  respondents  chose  to  controvert  the \nClaimant’s  entitlement  to  additional  medical  treatment  and \nindemnity  benefits  at  one  time  he  may  not  have  received  all  the \ntreatment  that  may  have  otherwise  enabled  him  to  have  a  fuller \nrecovery.  Therefore,  the  Claimant  contends  that  he  is  entitled  to \nreturn  to  Dr.  Greg  Jones  for  evaluation  of  both  shoulders  for  a \ndetermination  in  regard  to  whether  physical  therapy  would  likely \nimprove  the  strength  that  the  Claimant  has  lost  as  a  result  of  his \ncompensable injuries. \n \n\nWalker – H204558 \n \n-6- \nIf the respondents will authorize an appointment for Mr. Walker to \nreturn  to  Dr.  Jones,  it  of  course  would  be  premature  to  consider \ntheir Motion to Dismiss at this time. \n \nIf  the  respondents  will  not  authorize  Mr.  Walker  to  return  to  Dr. \nJones,  I  will  be  requesting  a  hearing  and  that  request  will  cause  it \nto be inappropriate to grant the respondent’s Motion to Dismiss. \n \nBy   copy   I   am   requesting   Ms.   Wood   to   advise   whether   the \nrespondents  will  authorize  the  Claimant  to  return  to  Dr.  Greg \nJones. \n \n On April 16, 2024, the respondent’s attorney authored a letter to the Commission in \nresponse to the claimant’s attorney’s April 8, 2024, letter as follows: \nI  am  in  receipt  of  Claimant’s  counsel’s  correspondence  to  you \ndated 4/8/24. My client has scheduled an appointment for Claimant \nto return to Dr. Greg Jones as requested by Claimant’s counsel. \nRespondents  continue  to  ask  for  a  dismissal  of  this  case.  It  is  our \nposition  that  the  providing  of  benefits  does  not  affect  whether  or \nnot the claim is being prosecuted by the claimant. \n \nRule 099.13 states: \nThe   Commission   may,   in   its   discretion,   postpone   or   recess \nhearings  at  the  instance  of  either  party  or  on  its  own  motion.  No \ncase  set  for  hearing  shall  be  postponed  except  by  approval  of  the \nCommission or Administrative Law Judge. \n \nIn  the  event  neither  party  appears  at  the  initial  hearing,  the  case \nmay  be  dismissed  by  the  Commission  or  Administrative  Law \nJudge, and such dismissal order will become final unless an appeal \nis  timely  taken  therefrom  for  a  proper  motion  to  reopen  is  filed \nwith  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon meritorious application to the Commission from either party \nin  an  action  pending  before  the  Commission,  requesting  that  the \nclaim be dismissed for want of prosecution, the Commission may, \nupon reasonable notice to all parties, enter an order dismissing the \nclaim for want of prosecution. (Effective March 1, 1982) \n \n\nWalker – H204558 \n \n-7- \n Rule 099.13 provides discretion in deciding whether a  case is to be dismissed in that its \ngiven language states “may” and not shall. This is not a case with a long and tortured history. \nThe claimant’s compensable injuries occurred roughly two years prior to the respondent’s filing \nof the motion to dismiss. In fact, the claimant had an appointment scheduled with his physician \nwithin  roughly  a  week  of  the  hearing  on  the motion  to dismiss  in  this  matter  regarding  his \ncompensable  injuries.  It  appears  to  this  administrative  law  judge  that  this  claimant  has  not \nignored  or  wasted  the  time  of  the  Commission  or  the  respondent,  but  instead,  has  actively \npursued  indemnity  and  medical  benefits  to  return  him  as  much  as  possible  to  his  preinjury \nfinancial and physical state and continues to do so. The respondents’ motion to dismiss is denied. \n ORDER \n Pursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny the \nmotion to dismiss filed by the respondents. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":13211,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H204558 VINCENT WALKER, Employee CLAIMANT GREENWOOD SCHOOL MAINTENANCE, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., Carrier/TPA RESPONDENT OPINION FILED AUGUST 20, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian Cou...","outcome":"dismissed","outcomeKeywords":["dismissed:8","denied:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:50:17.438Z"},{"id":"full_commission-H301278-2024-08-16","awccNumber":"H301278","decisionDate":"2024-08-16","decisionYear":2024,"opinionType":"full_commission","claimantName":"Michelle Burnett","employerName":"Southside High School","title":"BURNETT VS. SOUTHSIDE HIGH SCHOOL AWCC# H301278 & H303725 August 16, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Burnett_Michelle_H301278-H303726_20240816.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Burnett_Michelle_H301278-H303726_20240816.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \nCLAIM NOS. H301278 & H303725  \n \nMICHELLE BURNETT, EMPLOYEE    CLAIMANT \n \n \n \nSOUTHSIDE HIGH SCHOOL, EMPLOYER                          RESPONDENT \n \n \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nCARRIER                                                                               RESPONDENT \n \n \nOPINION FILED AUGUST 16, 2024 \n \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE GUY ALTON WADE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed March 12, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-\nhearing conference conducted on August 21, 2023, \nand contained in a Pre-hearing Order filed August 22, \n2023, are hereby accepted as fact.  \n\n \nBurnett – H301278, H303725 2  \n \n \n \n \n2. The claimant has failed to prove by a preponderance of \nthe evidence that she sustained compensable injuries \nto her low back, right knee, right arm, and coccyx on or \nabout February 24, 2023.  \n \n3. The claimant has proven by a preponderance of the \nevidence that she is entitled to medical treatment for \nher compensable low back injury of January 18, 2023, \nin the form of an MRI of the lumbar spine.  \n \n4. The claimant has failed to prove by a preponderance of \nthe evidence that she sustained a compensable \ncervical spine injury on January 18, 2023, and/or \nFebruary 24, 2023.  \n \n5. The claimant has failed to prove by a preponderance of \nthe evidence that she is entitled to medical treatment \nfor her cervical spine. \n \n We have carefully conducted a de novo review of the entire record \nherein, and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the March 12, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.   \n\n \nBurnett – H301278, H303725 3  \n \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n   The Administrative Law Judge (hereinafter referred to as “ALJ”) \nfound that the Claimant failed to prove by a preponderance of the evidence \nthat she sustained compensable injuries to her low back, right knee, right \narm, and coccyx on or about February 24, 2023, that she proved by a \npreponderance of the evidence that she is entitled to medical treatment for \nher compensable low back injury of January 18, 2023, in the form of an MRI \nof the lumbar spine, that she failed to prove by a preponderance of the \nevidence that she sustained a compensable cervical spine injury on \nJanuary 18, 2023 and/or February 24, 2023, and finally, that the Claimant \nhas failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment for her cervical spine.  I concur in part and dissent in \npart.  \n\n \nBurnett – H301278, H303725 4  \n \n \n \n1. The Claimant sustained a compensable injury to her coccyx on or \nabout February 24, 2023.  \n  \n To  establish  a  compensable  injury  by  a  preponderance  of  the \nevidence  the  Claimant  must  prove:  (1)  an  injury  arising  out  of  and  in  the \ncourse of employment; (2) that the injury caused internal or external harm to \nthe body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings, as defined in Ark. Code \nAnn.  §11-9-102(16),  establishing  the  injury;  and  (4)  that  the  injury  was \ncaused  by  a  specific  and  identifiable  time  and  place  of  occurrence.    A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 Ark. \nApp. 273, 72 S.W.3d 560 (2002).  \n On  February  24,  2023,  Claimant  fell  at  work,  falling  on  her  right \nbuttocks.    The  Claimant  presented  to  the  emergency  department at  Mercy \nHospital  in  Fort  Smith  where  she  was  diagnosed  with  a  contusion  of  the \ncoccyx.  On March 2, 2023, Claimant presented to Dr. Thomas Cheyne for \nevaluation  of  her  coccyx.  Dr.  Cheyne  noted  that  the  Claimant  was  quite \ntender over her coccyx and diagnosed the Claimant with coccydynia.  \n Claimant continued treatment with Dr. Cheyne for her coccydynia and \non April 26, 2023, Dr. Cheyne stated that Claimant’s coccydynia was likely \n\n \nBurnett – H301278, H303725 5  \n \n \n \nfrom her February 24, 2023, fall.  A doctor is not required to be absolute in \nan opinion nor are the magic words “within a reasonable degree of medical \ncertainty” even required to be used by the doctor for an injury to be related to \nthe work accident.  Freeman v. Con-Agra Frozen Foods, 344 Ark. 296 (2001).  \nRather, the medical opinion must simply be more than speculation.  Id. If a \ndoctor renders an opinion about causation of a workers’ compensation injury \nwith language that goes beyond possibilities and establishes that work was \nthe reasonable cause of the injury, this should pass muster.  Id. \n Therefore, I would rule that Claimant proved by a preponderance of \nthe  evidence  that  she  sustained  a  compensable  injury  to  her  coccyx  as  a \nresult of her work accident on February 24, 2023.  \n2. The Claimant has proven by a preponderance of the evidence that \nshe sustained a compensable cervical spine injury on January 18, \n2023, and/or February 24, 2023.  \n \n To  establish  a  compensable  injury  by  a  preponderance  of  the \nevidence  the  Claimant  must  prove:  (1)  an  injury  arising  out  of  and  in  the \ncourse of employment; (2) that the injury caused internal or external harm to \nthe body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings, as defined in Ark. Code \nAnn.  §11-9-102(16),  establishing  the  injury;  and  (4)  that  the  injury  was \ncaused  by  a  specific  and  identifiable  time  and  place  of  occurrence.    A \ncompensable injury must be established by medical evidence supported by \n\n \nBurnett – H301278, H303725 6  \n \n \n \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 Ark. \nApp. 273, 72 S.W.3d 560 (2002).  \n The  employer  takes  the  employee  as  he  finds  him.  Conway \nConvalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. App. \n1979).  A pre-existing disease or infirmity does not disqualify a claim if the \nemployment  aggravated,  accelerated,  or  combined  with  the  disease  or \ninfirmity  to  produce  the  disability  for  which  compensation  is  sought.   See, \nNashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); \nConway Convalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 \n(Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 \nS.W.2d 550 (1996).  An increase in symptoms of a pre-existing degenerative \ncondition is sufficient to establish a compensable injury.  Parker v. Atlantic \nResearch Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004). \n The Claimant was involved in a motor vehicle accident in July of \n2022 where she was t-boned at a rate of approximately 40 miles per hour.  \nThe Claimant underwent treatment for her injuries as a result of the motor \nvehicle accident and she was diagnosed with whiplash, neck pain and \nshoulder pain on the left side.  Claimant had an MRI of her cervical spine on \nSeptember 26, 2022, which showed:  \n Impression: \n\n \nBurnett – H301278, H303725 7  \n \n \n \n C5-C6 central right paracentral disc protrusion indenting subarachnoid    \nspace and cord.  Causing central canal stenosis.  \nBroad-based central disc bulge spurring C3-4 with mild canal stenosis.  \nProminent foraminal spurs.  Three broad-based central disc bulge.  \n C6-C7: canal stenosis.  \n T2-T3 small central disc protrusion.  \n \n On January 18, 2023, Claimant was walking up the stairs at her place \nof work when she lost her footing and landed on her knees and then fell back \nonto  the  stairwell  wall.  Claimant  presented  to  the  Mercy  Occupational \nMedicine Clinic in Fort Smith and was seen by Dr. Ian Cheyne who diagnosed \nher with an initial encounter for her fall.  \n On  February  24,  2023,  Claimant  was  walking  back  into  the  school \nwhen she tripped on a curb causing her to fall backwards and onto her right \nside.      Claimant   presented   to   Mercy   Hospital   Fort   Smith   Emergency \nDepartment where she was again diagnosed with an initial encounter for her \nfall.  \n Claimant  continued  to  treat  her  symptoms  and  followed  up  with  Dr. \nJeffrey Hamby on June 2, 2023.  Dr. Hamby noted on Claimant’s physical \nexamination  that  she  had  a  diminished  range  of  motion  in  her  neck  and \nneeded  an  MRI  of  her  cervical  spine.    Dr.  Hamby diagnosed  the  Claimant \nwith cervicalgia and radiculopathy affecting her upper extremities.  Claimant \nunderwent an MRI of her cervical spine on June 6, 2023, which showed new \nfindings of:   \n\n \nBurnett – H301278, H303725 8  \n \n \n \nAt C3-4, there is mild retrolisthesis by 2 or 3 mm.  There is a central \ndisc herniation, moderately severe canal stenosis, there may be mild \ncord  compression.  Additionally, moderate bilateral foraminal \nspurring/exit foramina stenosis at this level.  \nAt  the  C4-5  level,  there  is  mild  broad  disc  bulging.  There  is  left \nforaminal disc herniation producing moderately severe stenosis of the \nleft exit foramen. Mild narrowing right exit foramen.  Mild central canal \nstenosis.  \n \nDr. Hamby read Claimant’s MRI of her C-spine on June 22, 2023, where he \ndiagnosed  her  with  a  herniated  cervical  disc  and  referred  Claimant  to  a \nneurosurgeon  for  evaluation  and  treatment  options.  Claimant  was  seen  by \nDr. Zane Grimes on August 15, 2023, who noted the history of her injury as \nbeing:  \nShe reports progressive neck pain after a fall at work in January of this \nyear.  She  describes pain through the right side [of] her neck which \nextends to the right  shoulder but does not typically radiate down the \narms. \n \nDr.   Grimes   diagnosed   the   Claimant   with   cervical   spondylosis   with \nmyelopathy,   cervical   stenosis   of   the   spine,   and   cervical   spinal   cord \ncompression.      Dr.   Grimes   recommended   surgery   in   the   form   of \ndecompression of the spinal cord.  \n Claimant has marked differences in her cervical spine as visualized \nin the September 26, 2022, and June 2, 2023, MRIs.  Prior to Claimant’s \ntwo work accidents, Claimant did not have pathology at the C3-4, or C4-5 \nlevels.  Therefore, I would rule that the Claimant has proven by a \n\n \nBurnett – H301278, H303725 9  \n \n \n \npreponderance of the evidence that she sustained a compensable injury to \nher cervical spine on January 18, 2023, and/or February 24, 2023.  \n3. The Claimant has proven by a preponderance of the evidence that \nshe is entitled to medical treatment for her cervical spine.  \n  \n An employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee. Ark. Code Ann. § 11-9-508(a).  \nReasonable and necessary medical services may include those necessary \nto accurately diagnose the nature and extent of the compensable injury; to \nreduce or alleviate symptoms resulting from the compensable injury; or to \nmaintain the level of healing achieved; or to prevent further deterioration of \nthe damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).  \n Claimant suffered a compensable injury to her cervical spine after \nher two work related falls on January 18, 2023 and February 24, 2023.  As \nnoted above, Dr. Grimes recommended surgery for Claimant’s \ncompensable injury in the form of decompression of the spinal cord \nbecause if left untreated this injury carries an increased risk of spinal cord \ninjury.  This treatment is reasonable and necessary to prevent the further \ndeterioration of the damage produced by the compensable injury.  \n\n \nBurnett – H301278, H303725 10  \n \n \n \n Therefore,   I   would   rule   that   the   Claimant   has   proven   by   a \npreponderance of the evidence that she is entitled to medical treatment for \nher cervical spine.  \nFor the reasons stated above, I respectfully dissent. \n                                                                  \n_________________________________ \n                                                M. SCOTT WILLHITE, Commissioner","textLength":13507,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. H301278 & H303725 MICHELLE BURNETT, EMPLOYEE CLAIMANT SOUTHSIDE HIGH SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER RESPONDENT OPINION FILED AUGUST 16, 2024 Upon review before the FULL COMMISSION in L...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["back","knee","lumbar","cervical","neck","shoulder","herniated"],"fetchedAt":"2026-05-19T22:29:45.145Z"},{"id":"alj-H307855-2024-08-16","awccNumber":"H307855","decisionDate":"2024-08-16","decisionYear":2024,"opinionType":"alj","claimantName":"Geoffrey Erwin","employerName":"Amazon.Com Services, LLC","title":"ERWIN VS. AMAZON.COM SERVICES, LLC AWCC# H307855 August 16, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ERWIN_GEOFFREY_H307855_20240816.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ERWIN_GEOFFREY_H307855_20240816.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H307855 \n \nGEOFFREY ERWIN, \nEMPLOYEE                                                                                                              CLAIMANT \n \nAMAZON.COM SERVICES, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nZURICH AMERICAN INS. CO./ \nSEDGWICK CLAIMS MG’T SERVICES, INC. \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE  \nFILED AUGUST 16, 2024 \n \nHearing conducted on Wednesday, August 14, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Geoffrey Erwin, pro se, of Pine Bluff, Jefferson County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable Rick Behring, Jr., Newkirk & Jones, Little \nRock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A  hearing was  conducted  on Wednesday,  August  14, 2024, to  determine  whether this \nclaim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) \n(2024 Lexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n The respondents  filed  a motion to  dismiss without  prejudice and  incorporated  brief  in \nsupport thereof (MTD) with the Commission on June 18, 2024, requesting this claim be dismissed \nwithout prejudice for lack of prosecution. Consistent with the applicable Arkansas law, by letter \ndated June 20, 2024, the Commission mailed a copy of both the respondents’ MTD, and the subject \nhearing  notice via  the  United  States  Postal  Service  (USPS),  Certified  Mail,  Return  Receipt \n\nGeoffrey Erwin, AWCC No. H307855 \n \n2 \n \nRequested, to the claimant’s last known address of record with the Commission which the claimant \nreceived on June 22, 2024. (See blue-backed Commission Exhibit 1; Respondents’ Exhibit 1 at 6-\n12). Thereafter, the claimant failed and/or refused to respond in any way to either the Commission \nor to the respondents; and he failed and/or refused to appear at the subject hearing. The claimant \nnever objected in any way to the respondents’ MTD. \n          It should be noted the claimant was represented by counsel at the time this claim was filed \non  his  behalf;  however,  by an  order  filed  May  23,  2024, the  Full  Commission  granted  the \nclaimant’s attorney’s motion to withdraw as counsel. (RX1 at 4-5).  \n          I hereby incorporate the facts stated in the respondents’ MTD filed June 18, 2024, as though \nthey  were  set  forth  word-for-word  herein. (RX1  at  6-10;  12). The  record  herein  consists  of the \nhearing transcript and any and all exhibits contained therein and attached thereto. \n \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2024 Lexis Replacement), as well as \nour court of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 \nS.W.3d  287  (Ark.  App.  2004),  the Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \ndemonstrates the claimant has both failed and/or refused to prosecute this claim, and he has failed \nand/or refused to request a hearing within the last six (6) months on his claim. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \n\nGeoffrey Erwin, AWCC No. H307855 \n \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After the Commission mailed due and legal notice of the respondents’ MTD \n                  filed June 18, 2024, to the claimant’s last known address of record with the \n                  Commission, the claimant failed and/or refused to respond to the motion in any \n                  way; failed and/or refused to object to the subject MTD; and failed and/or refused \n                  to request a hearing on his subject claim. \n \n            3.         The claimant failed and/or refused to appear at the subject hearing and, therefore, \n                        has waived his right to a hearing on the respondents’ subject MTD. \n \n      4.         The claimant has failed to request a hearing on this claim within the last six (6) \n                   months.  \n \n 5. The respondents’ MTD without prejudice filed with the Commission on June 18, \n                  2024, should be and hereby is GRANTED. \n      \n      6.          Therefore, this claim hereby is dismissed without prejudice subject to the applicable \n                 deadline(s) prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission \n                 Rule 099.13. \n \n This opinion shall not be construed to prohibit the claimant, his attorney, any attorney he \nmay retain in the future, or anyone acting legally and on his behalf from refiling this claim if  it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n The  respondents shall pay the court reporter’s invoice within twenty  (20) days  of their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \nMP/mp","textLength":5989,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H307855 GEOFFREY ERWIN, EMPLOYEE CLAIMANT AMAZON.COM SERVICES, LLC, EMPLOYER RESPONDENT ZURICH AMERICAN INS. CO./ SEDGWICK CLAIMS MG’T SERVICES, INC. INSURANCE CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED AUGUST 16, 2024 Hearing conduct...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:08.944Z"},{"id":"alj-H301278-2024-08-16","awccNumber":"H301278","decisionDate":"2024-08-16","decisionYear":2024,"opinionType":"alj","claimantName":"Michelle Burnett","employerName":"Southside High School","title":"BURNETT VS. SOUTHSIDE HIGH SCHOOL AWCC# H301278 & H303725 August 16, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Burnett_Michelle_H301278-H303726_20240816.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Burnett_Michelle_H301278-H303726_20240816.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \nCLAIM NOS. H301278 & H303725  \n \nMICHELLE BURNETT, EMPLOYEE    CLAIMANT \n \n \n \nSOUTHSIDE HIGH SCHOOL, EMPLOYER                          RESPONDENT \n \n \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nCARRIER                                                                               RESPONDENT \n \n \nOPINION FILED AUGUST 16, 2024 \n \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE GUY ALTON WADE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed March 12, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-\nhearing conference conducted on August 21, 2023, \nand contained in a Pre-hearing Order filed August 22, \n2023, are hereby accepted as fact.  \n\n \nBurnett – H301278, H303725 2  \n \n \n \n \n2. The claimant has failed to prove by a preponderance of \nthe evidence that she sustained compensable injuries \nto her low back, right knee, right arm, and coccyx on or \nabout February 24, 2023.  \n \n3. The claimant has proven by a preponderance of the \nevidence that she is entitled to medical treatment for \nher compensable low back injury of January 18, 2023, \nin the form of an MRI of the lumbar spine.  \n \n4. The claimant has failed to prove by a preponderance of \nthe evidence that she sustained a compensable \ncervical spine injury on January 18, 2023, and/or \nFebruary 24, 2023.  \n \n5. The claimant has failed to prove by a preponderance of \nthe evidence that she is entitled to medical treatment \nfor her cervical spine. \n \n We have carefully conducted a de novo review of the entire record \nherein, and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the March 12, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.   \n\n \nBurnett – H301278, H303725 3  \n \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n   The Administrative Law Judge (hereinafter referred to as “ALJ”) \nfound that the Claimant failed to prove by a preponderance of the evidence \nthat she sustained compensable injuries to her low back, right knee, right \narm, and coccyx on or about February 24, 2023, that she proved by a \npreponderance of the evidence that she is entitled to medical treatment for \nher compensable low back injury of January 18, 2023, in the form of an MRI \nof the lumbar spine, that she failed to prove by a preponderance of the \nevidence that she sustained a compensable cervical spine injury on \nJanuary 18, 2023 and/or February 24, 2023, and finally, that the Claimant \nhas failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment for her cervical spine.  I concur in part and dissent in \npart.  \n\n \nBurnett – H301278, H303725 4  \n \n \n \n1. The Claimant sustained a compensable injury to her coccyx on or \nabout February 24, 2023.  \n  \n To  establish  a  compensable  injury  by  a  preponderance  of  the \nevidence  the  Claimant  must  prove:  (1)  an  injury  arising  out  of  and  in  the \ncourse of employment; (2) that the injury caused internal or external harm to \nthe body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings, as defined in Ark. Code \nAnn.  §11-9-102(16),  establishing  the  injury;  and  (4)  that  the  injury  was \ncaused  by  a  specific  and  identifiable  time  and  place  of  occurrence.    A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 Ark. \nApp. 273, 72 S.W.3d 560 (2002).  \n On  February  24,  2023,  Claimant  fell  at  work,  falling  on  her  right \nbuttocks.    The  Claimant  presented  to  the  emergency  department at  Mercy \nHospital  in  Fort  Smith  where  she  was  diagnosed  with  a  contusion  of  the \ncoccyx.  On March 2, 2023, Claimant presented to Dr. Thomas Cheyne for \nevaluation  of  her  coccyx.  Dr.  Cheyne  noted  that  the  Claimant  was  quite \ntender over her coccyx and diagnosed the Claimant with coccydynia.  \n Claimant continued treatment with Dr. Cheyne for her coccydynia and \non April 26, 2023, Dr. Cheyne stated that Claimant’s coccydynia was likely \n\n \nBurnett – H301278, H303725 5  \n \n \n \nfrom her February 24, 2023, fall.  A doctor is not required to be absolute in \nan opinion nor are the magic words “within a reasonable degree of medical \ncertainty” even required to be used by the doctor for an injury to be related to \nthe work accident.  Freeman v. Con-Agra Frozen Foods, 344 Ark. 296 (2001).  \nRather, the medical opinion must simply be more than speculation.  Id. If a \ndoctor renders an opinion about causation of a workers’ compensation injury \nwith language that goes beyond possibilities and establishes that work was \nthe reasonable cause of the injury, this should pass muster.  Id. \n Therefore, I would rule that Claimant proved by a preponderance of \nthe  evidence  that  she  sustained  a  compensable  injury  to  her  coccyx  as  a \nresult of her work accident on February 24, 2023.  \n2. The Claimant has proven by a preponderance of the evidence that \nshe sustained a compensable cervical spine injury on January 18, \n2023, and/or February 24, 2023.  \n \n To  establish  a  compensable  injury  by  a  preponderance  of  the \nevidence  the  Claimant  must  prove:  (1)  an  injury  arising  out  of  and  in  the \ncourse of employment; (2) that the injury caused internal or external harm to \nthe body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings, as defined in Ark. Code \nAnn.  §11-9-102(16),  establishing  the  injury;  and  (4)  that  the  injury  was \ncaused  by  a  specific  and  identifiable  time  and  place  of  occurrence.    A \ncompensable injury must be established by medical evidence supported by \n\n \nBurnett – H301278, H303725 6  \n \n \n \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 Ark. \nApp. 273, 72 S.W.3d 560 (2002).  \n The  employer  takes  the  employee  as  he  finds  him.  Conway \nConvalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. App. \n1979).  A pre-existing disease or infirmity does not disqualify a claim if the \nemployment  aggravated,  accelerated,  or  combined  with  the  disease  or \ninfirmity  to  produce  the  disability  for  which  compensation  is  sought.   See, \nNashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 (1990); \nConway Convalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 \n(Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. App. 30, 917 \nS.W.2d 550 (1996).  An increase in symptoms of a pre-existing degenerative \ncondition is sufficient to establish a compensable injury.  Parker v. Atlantic \nResearch Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004). \n The Claimant was involved in a motor vehicle accident in July of \n2022 where she was t-boned at a rate of approximately 40 miles per hour.  \nThe Claimant underwent treatment for her injuries as a result of the motor \nvehicle accident and she was diagnosed with whiplash, neck pain and \nshoulder pain on the left side.  Claimant had an MRI of her cervical spine on \nSeptember 26, 2022, which showed:  \n Impression: \n\n \nBurnett – H301278, H303725 7  \n \n \n \n C5-C6 central right paracentral disc protrusion indenting subarachnoid    \nspace and cord.  Causing central canal stenosis.  \nBroad-based central disc bulge spurring C3-4 with mild canal stenosis.  \nProminent foraminal spurs.  Three broad-based central disc bulge.  \n C6-C7: canal stenosis.  \n T2-T3 small central disc protrusion.  \n \n On January 18, 2023, Claimant was walking up the stairs at her place \nof work when she lost her footing and landed on her knees and then fell back \nonto  the  stairwell  wall.  Claimant  presented  to  the  Mercy  Occupational \nMedicine Clinic in Fort Smith and was seen by Dr. Ian Cheyne who diagnosed \nher with an initial encounter for her fall.  \n On  February  24,  2023,  Claimant  was  walking  back  into  the  school \nwhen she tripped on a curb causing her to fall backwards and onto her right \nside.      Claimant   presented   to   Mercy   Hospital   Fort   Smith   Emergency \nDepartment where she was again diagnosed with an initial encounter for her \nfall.  \n Claimant  continued  to  treat  her  symptoms  and  followed  up  with  Dr. \nJeffrey Hamby on June 2, 2023.  Dr. Hamby noted on Claimant’s physical \nexamination  that  she  had  a  diminished  range  of  motion  in  her  neck  and \nneeded  an  MRI  of  her  cervical  spine.    Dr.  Hamby diagnosed  the  Claimant \nwith cervicalgia and radiculopathy affecting her upper extremities.  Claimant \nunderwent an MRI of her cervical spine on June 6, 2023, which showed new \nfindings of:   \n\n \nBurnett – H301278, H303725 8  \n \n \n \nAt C3-4, there is mild retrolisthesis by 2 or 3 mm.  There is a central \ndisc herniation, moderately severe canal stenosis, there may be mild \ncord  compression.  Additionally, moderate bilateral foraminal \nspurring/exit foramina stenosis at this level.  \nAt  the  C4-5  level,  there  is  mild  broad  disc  bulging.  There  is  left \nforaminal disc herniation producing moderately severe stenosis of the \nleft exit foramen. Mild narrowing right exit foramen.  Mild central canal \nstenosis.  \n \nDr. Hamby read Claimant’s MRI of her C-spine on June 22, 2023, where he \ndiagnosed  her  with  a  herniated  cervical  disc  and  referred  Claimant  to  a \nneurosurgeon  for  evaluation  and  treatment  options.  Claimant  was  seen  by \nDr. Zane Grimes on August 15, 2023, who noted the history of her injury as \nbeing:  \nShe reports progressive neck pain after a fall at work in January of this \nyear.  She  describes pain through the right side [of] her neck which \nextends to the right  shoulder but does not typically radiate down the \narms. \n \nDr.   Grimes   diagnosed   the   Claimant   with   cervical   spondylosis   with \nmyelopathy,   cervical   stenosis   of   the   spine,   and   cervical   spinal   cord \ncompression.      Dr.   Grimes   recommended   surgery   in   the   form   of \ndecompression of the spinal cord.  \n Claimant has marked differences in her cervical spine as visualized \nin the September 26, 2022, and June 2, 2023, MRIs.  Prior to Claimant’s \ntwo work accidents, Claimant did not have pathology at the C3-4, or C4-5 \nlevels.  Therefore, I would rule that the Claimant has proven by a \n\n \nBurnett – H301278, H303725 9  \n \n \n \npreponderance of the evidence that she sustained a compensable injury to \nher cervical spine on January 18, 2023, and/or February 24, 2023.  \n3. The Claimant has proven by a preponderance of the evidence that \nshe is entitled to medical treatment for her cervical spine.  \n  \n An employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee. Ark. Code Ann. § 11-9-508(a).  \nReasonable and necessary medical services may include those necessary \nto accurately diagnose the nature and extent of the compensable injury; to \nreduce or alleviate symptoms resulting from the compensable injury; or to \nmaintain the level of healing achieved; or to prevent further deterioration of \nthe damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).  \n Claimant suffered a compensable injury to her cervical spine after \nher two work related falls on January 18, 2023 and February 24, 2023.  As \nnoted above, Dr. Grimes recommended surgery for Claimant’s \ncompensable injury in the form of decompression of the spinal cord \nbecause if left untreated this injury carries an increased risk of spinal cord \ninjury.  This treatment is reasonable and necessary to prevent the further \ndeterioration of the damage produced by the compensable injury.  \n\n \nBurnett – H301278, H303725 10  \n \n \n \n Therefore,   I   would   rule   that   the   Claimant   has   proven   by   a \npreponderance of the evidence that she is entitled to medical treatment for \nher cervical spine.  \nFor the reasons stated above, I respectfully dissent. \n                                                                  \n_________________________________ \n                                                M. SCOTT WILLHITE, Commissioner","textLength":13507,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. H301278 & H303725 MICHELLE BURNETT, EMPLOYEE CLAIMANT SOUTHSIDE HIGH SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER RESPONDENT OPINION FILED AUGUST 16, 2024 Upon review before the FULL COMMISSION in L...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["back","knee","lumbar","cervical","neck","shoulder","herniated"],"fetchedAt":"2026-05-19T22:50:08.956Z"},{"id":"alj-H305440-2024-08-16","awccNumber":"H305440","decisionDate":"2024-08-16","decisionYear":2024,"opinionType":"alj","claimantName":"Jorge Puente","employerName":"Thompson Constr. Grp., Inc","title":"PUENTE VS. THOMPSON CONSTR. GRP., INC. AWCC# H305440 August 16, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Puente_Jorge_H305440_20240816.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Puente_Jorge_H305440_20240816.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305440 \n \n \nJORGE A. PUENTE, EMPLOYEE CLAIMANT \n \nTHOMPSON CONSTR. GRP., INC., \n EMPLOYER RESPONDENT \n \nAMER. CASUALTY CO. OF READING, PA, \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 16, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on August 16, \n2024, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Jacob Sutter, Attorney at Law, North Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on August  16,  2024, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  without  objection  was Commission  Exhibit  1,  forms, \npleadings, and correspondence related to this claim, consisting of 14 pages. \n The record reveals the following procedural history: \n The First Report of Injury or Illness, filed on August 23, 2023, reflects that \nClaimant purportedly suffered an injury to his face at  work  on August 4,  2023, \n\nPUENTE – H305440 \n2 \n \nwhen  he  suffered  a  coughing  fit  that  caused  him  to  faint  and  fall.   Per  the  Form \nAR-2 that was filed on August 28, 2023, Respondents denied the claim, asserting \nthat the alleged injury did  not  occur  in  the  course  and  scope  of Claimant’s \nemployment. \n On August 29, 2023, Claimant filed a Form AR-C, alleging that his alleged \nfacial  injury  happened  after  he  “blacked  out,”  and  requesting  medical  and \ntemporary  total  disability  benefits  along  with  rehabilitation.  No  hearing  request \naccompanied  this  filing.   Respondents’ counsel entered  his  appearance  on \nSeptember  13,  2023;  and  on  September  22,  2023,  he  requested  a  copy  of  the \nclaim file from the Commission.  In a letter to the Commission dated October 31, \n2023,  Respondents  reiterated  that  their  position  on  compensability  had  not \nchanged. \n The  record  reflects  that  no  further  activity  took  place  on  this  claim  until \nMarch  27,  2024, when Respondents  filed  the  instant Motion  to Dismiss under \nAWCC R. 099.13 and Ark. Code Ann. § 11-9-702 (Repl. 2012), contending that no \nhearing request had been made in over six months.  The file was assigned to me \nby the Clerk of the Commission on March 27, 2024; and that same day, my office \nwrote  Claimant,  requesting  a  response  to  the  motion  within 20 days.   This \ncorrespondence was sent by both certified and first-class mail to the Pharr, Texas \naddress for Claimant listed in the file and on his Form AR-C.  The certified letter \nwas claimed by Claimant on April 1, 2024; and the first-class correspondence was \n\nPUENTE – H305440 \n3 \n \nnot returned to  the  Commission.  However,  no  response  by  Claimant  to  the \nmotion was forthcoming. \n On May  6,  2024, a hearing on Respondents’ motion was scheduled for \nAugust   16,   2024, at 12:00 p.m.   at   the Craighead   County   Courthouse in \nJonesboro.  The Notice of Hearing was sent to Claimant by certified and first-class \nmail  to  the same address as  before.  In  this  instance, the certified letter was \nreturned to the Commission, unclaimed, on June 4, 2024.  But as before, the one \nsent via first class was not returned. \n The hearing proceeded as scheduled on August 16, 2024.  Claimant failed \nto appear at the hearing.  But Respondents appeared through counsel and argued \nfor dismissal under the provisions cited above. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute this claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n\nPUENTE – H305440 \n4 \n \n5. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction in pursuit of his claim since the filing of his Form AR-C on August 29, 2023.  \nMoreover,  he  failed  to  appear at the  hearing  to  argue  against  dismissal  of  the \nclaim, despite the evidence showing that both he and Respondents were provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon.  Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the application of § 11-9-702. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).   The Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment  Bureau  v.  Strong,  75  Ark.  249,  629  S.W.2d  284  (1982)).  Based  on \n\nPUENTE – H305440 \n5 \n \nthe  foregoing,  I find  that  the  dismissal  of  this  claim  should  be  and  hereby  is \nentered without prejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":6521,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305440 JORGE A. PUENTE, EMPLOYEE CLAIMANT THOMPSON CONSTR. GRP., INC., EMPLOYER RESPONDENT AMER. CASUALTY CO. OF READING, PA, CARRIER RESPONDENT OPINION FILED AUGUST 16, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on August 16, 2024,...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:11.028Z"},{"id":"alj-H306893-2024-08-15","awccNumber":"H306893","decisionDate":"2024-08-15","decisionYear":2024,"opinionType":"alj","claimantName":"Terry Keeling","employerName":"Walmart Associates Inc","title":"KEELING VS. WALMART ASSOCIATES INC. AWCC# H306893 August 15, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Keeling_Terry_H306893_2024815.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Keeling_Terry_H306893_2024815.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NO. H306893 \n \nTERRY KEELING,  \nEMPLOYEE  CLAIMANT \n \nWALMART ASSOCIATES INC., \nSELF INSURED/EMPLOYER/TPA                                                                           RESPONDENT \n \n \nOPINION FILED AUGUST 15, 2024 \n \nHearing before Administrative Law Judge Steven Porch on August 6, 2024, in Little Rock, Pulaski \nCounty, Arkansas. \n \nClaimant represented herself, Pro se, Little Rock, Arkansas. \n \nThe Respondents were represented  by  Mr. Rick  Behring  Jr.,  Attorney  at  Law, Little  Rock, \nArkansas. \n \nI.  BACKGROUND \nThis matter comes before the Commission on a Motion to Dismiss filed by the Respondent \non May 22, 2024. The Claimant worked as a team associate for Respondent/Employer. Admitted \ninto evidence is Respondents’ Exhibit 1, correspondence and pleadings, consisting of 15 pages. I \nhave  also  blue-backed  postal  return receipts  dated  June  7,  2024,  and July  6,  2024, as  discussed \ninfra. \nThe record reflects on October 23, 2023, a Form AR-1 was filed alleging Claimant slipped \nand  fell  in  the  bakery  and  landed  on  her  back. Claimant’s injury occurred on  August  21,  2023. \nClaimant reported the injury to Respondent/Employer on August 26,  2023. Respondents filed a \nForm AR-2, on October 23, 2023, not stating any grounds for controverting the claim. Claimant’s \nthen-counsel,  Laura  Beth  York, on November 14,  2023, filed a  Form  AR-C,  purporting that \nClaimant injured her chest, ribs, right hip, left hip, head, neck, and back. Claimant’s counsel next \n\nKEELING AWCC No. H306893 \n \n 2 \nfiled a Motion to Withdraw as Claimant’s Counsel on February 29, 2024. The motion was granted \non March 20, 2024, by the Full Commission.  \nThe Respondents next filed a Motion to Dismiss on May 22, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The  Claimant  was  sent,  certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss on May 23, 2024, to her last known address of record. The certified \nnotice  was not claimed  by  Claimant per  postal  receipt  dated  June 7,  2024.  Likewise,  the  notice \nsent regular U.S. Mail was not returned to the Commission. Claimant did not respond to the notice \nin writing as required. Thus, in accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of Respondents’ Motion to Dismiss hearing date at her current address \nof record via the United States Postal Service (USPS), First Class Certified Mail, Return Receipt \nRequested, and regular First-Class Mail, on June 21, 2024. The certified notice was not claimed \nby the Claimant per postal receipt dated July 6, 2024. The hearing took place on August 6, 2024, \nand the Claimant did show up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary record, I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2. All  parties  received reasonable notice  of  the August  6,  2024, Motion  to Dismiss \nhearing date. \n \n3. Respondents did not prove by a preponderance of the evidence that Claimant has \nfailed to prosecute her claim under AWCC R. 099.13. \n \n4. The Motion to Dismiss should be, and hereby is, granted. \n \n5.         This claim is hereby dismissed without prejudice.     \n\nKEELING AWCC No. H306893 \n \n 3 \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Respondents must prove by a preponderance \nof the evidence that dismissal should be granted. The standard “preponderance of the evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, \n326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \nConsistent with AWCC Rule 099.13, as well as our court of appeals’ ruling in Dillard vs. \nBenton  County  Sheriff’s  Office,  87  Ark.  App.  379,  192  S.W.3d  287  (Ark.  App.  2004),  the \nCommission scheduled and conducted a hearing on the Respondents’ Motion to Dismiss. I do find \nby the preponderance of the evidence, introduced at the hearing and contained in the record, that \nClaimant has neither made a bona fide request for a hearing nor has she taken any action to pursue \nher  claim prior  to the  hearing  date. Thus, I find that the Respondents have  not proven  by  the \npreponderance of the evidence that its Motion should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted and this claim is dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5370,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO. H306893 TERRY KEELING, EMPLOYEE CLAIMANT WALMART ASSOCIATES INC., SELF INSURED/EMPLOYER/TPA RESPONDENT OPINION FILED AUGUST 15, 2024 Hearing before Administrative Law Judge Steven Porch on August 6, 2024, in Little Rock, Pulaski County, Arkansas. Claim...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:4","denied:1"],"injuryKeywords":["back","hip","neck"],"fetchedAt":"2026-05-19T22:50:06.879Z"},{"id":"alj-H206805-2024-08-14","awccNumber":"H206805","decisionDate":"2024-08-14","decisionYear":2024,"opinionType":"alj","claimantName":"Jason Frank","employerName":"Waldinger Corporation","title":"FRANK VS. WALDINGER CORPORATION AWCC# H206805 August 14, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FRANK_JASON_H206805_20240814.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FRANK_JASON_H206805_20240814.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H206805 \n \nJASON FRANK,  Employee                                                                        CLAIMANT \n \nWALDINGER CORPORATION, Employer                                              RESPONDENT                                 \n \nEMPLOYERS MUTUAL CASUALTY CO.                                               RESPONDENT                                                                                         \n \n \n OPINION/ORDER FILED AUGUST 14, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by DAVID C. JONES,  Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n This  claim  involves  an  injury  to  claimant’s  right  leg  on  September  2,  2022.  \nRespondent accepted this injury as compensable and paid compensation benefits.  On \nOctober  18,  2022,  Attorney  York  on  behalf  of  claimant  filed  Form  AR-C  requesting \nadditional compensation benefits.  An Agreed Order was filed on June 21, 2023, primarily \naddressing  claimant’s  entitlement  to  temporary  partial  disability  and/or  temporary  total \ndisability benefits from September 2, 2022 through December 31, 2022.   \nThereafter,  on  January  29,  2024,  Attorney  York  filed  a  Motion  to  Withdraw  as \nCounsel.    This  motion  was  granted by  the Full  Commission  in an Order  filed  March 5, \n2024.  No further action was taken and respondent filed its Motion to Dismiss on May 15, \n\nFrank – H206805 \n \n2 \n \n2024. \nA  hearing on  respondent’s  motion  to  Dismiss was  scheduled for July 31, 2024. \nNotice of the hearing was sent to claimant by certified mail and was delivered on June \n13,  2024.    Claimant did  not  appear  at  the  hearing and has  not  responded  to  the \nrespondent’s Motion to Dismiss. \n After my review of the respondent’s motion, the claimant’s failure to appear at the \nhearing or respond to the respondent’s motion, I find that respondent’s Motion to Dismiss \nshould be and hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 \nand it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2452,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206805 JASON FRANK, Employee CLAIMANT WALDINGER CORPORATION, Employer RESPONDENT EMPLOYERS MUTUAL CASUALTY CO. RESPONDENT OPINION/ORDER FILED AUGUST 14, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkan...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:04.789Z"},{"id":"alj-H300809-2024-08-12","awccNumber":"H300809","decisionDate":"2024-08-12","decisionYear":2024,"opinionType":"alj","claimantName":"April Bennett","employerName":null,"title":"BENNETT VS. FAYETTEVILLE PUBLIC SCHOOLSAWCC# H300809 August 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BENNETT_APRIL_H300809_20240812.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BENNETT_APRIL_H300809_20240812.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H300809 \n \nAPRIL BENNETT, Employee CLAIMANT \n \nFAYETTEVILLE PUBLIC SCHOOLS, Employer RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT \n \n \n \n OPINION FILED AUGUST 12, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by JAMES A. ARNOLD II, Attorney at Law, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n \n On April  22,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on March  4,  2024,  and  an  Amended Pre-\nhearing  Order  was  filed  on March  12,  2024.      A  copy  of  the Amended Pre-hearing  Order  has \nbeen marked Commission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The   relationship   of   employee-employer-carrier   existed   between   the   parties on \nFebruary 28, 2021. \n 3. The respondents have controverted the claim in its entirety. \n 4. The claimant’s weekly compensation rates will be determined at a later date. \n\nBennett – H300809 \n \n-2- \n At  this  prehearing  conference  the  parties  agreed  to  the  addition  of  two  experts  to  their \nwitness lists. Dr. Keith Chambers, NMD, will testify for the claimant and Joe Henry with Atoka, \nInc., will testify for the respondent. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable occupational illness to her body as a whole \ndue to exposure to mold in the workplace on or about February 28, 2021. \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for  her  occupational  illness  due  to \nexposure to mold in the workplace. \n The claimant's contentions are as follows: \n“Claimant   sustained   a   compensable   occupational   injury/illness \nwhen  exposed  to  mold  while  working.  Claimant  is  entitled  to \nmedical  treatment  for  the  illness  and  symptoms  caused  by  that \nexposure. Claimant reserves all other issues.” \n \n The respondents’ contentions are as follows: \n“Respondents  contend  that  the  claimant’s  condition  does  NOT \nmeet the definition of either a compensable injury or compensable \noccupational illness.” \n \n The  claimant  in  this  matter  is  a 44-year-old  female who  alleges  to  have  sustained  a \ncompensable occupational illness to her body as a whole due to mold exposure in her workplace \non or about February 28, 2021. The claimant at that time was employed by the respondents as a \njunior  high  engineering  teacher  and  track  coach.  The  claimant’s  job  duties  included  track \npractice  in  the  morning  before  school  and  the  last  hour  of  the  school  day.  She  taught  at \nWoodland Junior High in Room No. C6 and testified to spending five to six hours per school day \nin that particular room.  \n\nBennett – H300809 \n \n-3- \n The  claimant  gave  direct  examination  testimony  about  symptoms  she  began  having  in \nearly 2021 as follows: \nQ So  what  happened  to  you  in  early  2021  around  the  end  of \nJanuary, February? What happened? \n \nA I  started  getting  some  odd  symptoms:  Sleeplessness,  itchy, \nhives, headaches. They weren’t always all at the same time, but it \nwas  odd  to  me.  I  am  pretty  in  tune  with  my  health  and  I  really \nvalue  it,  so  it  was – they  left  just  kind  of  alarming  me  a  little  bit \nand  I  was  just  trying  to  figure  out  what  is  happening,  why  am  I \nhaving  hives  at  night  or  leg  tremors.  There  was  quite  a  few \nsymptoms that rotated. They weren’t really ever at the same time \nmost of the days. \n \nQ Did you know what was wrong? \n \nA No. Exhaustion, really exhausted. The exhaustion probably \nwas   what   limited   me   from   exploring   them   in   depth   at   the \nbeginning. I would just go to sleep instead. I would rest a lot. Lay \ndown a lot. \n \nQ When  did  you  or  did  you  at  some  point  start  seeking \nmedical attention? \n \nA That  summer  of  2021,  I  sought  out  medical  attention  and \nadvice. \n \n The claimant testified that she had some blood work and consultation of that blood work \nat  the  Institute  of  Natural  Health  in  St.  Louis,  Missouri, in  the  Summer  of  2021.  The  claimant \nwas familiar with that facility as she used that facility when she was employed as a professional \npole  vaulter.  The  claimant  testified  that  she  waited  for  additional  testing  until  the  end  of  that \nsame year due to her ongoing efforts to become pregnant. \n The claimant testified on direct examination that she received those lab results in March \nof  2022.  On  pages  101-110  of  Respondents’ Exhibit  1  there  appears  a  lab  report  regarding  the \n\nBennett – H300809 \n \n-4- \nclaimant from Genova Diagnostics/Metabolomix+. That report is dated March 28, 2022, and was \nordered by the Institute of Natural Health in St. Louis, Missouri.  \n On direct examination the claimant was also asked about those test results and her actions \nbecause of the results as follows: \nQ [BY MS. BROOKS]: Did you see the results of that test. \n \nA I did, yes. \n \nQ And what was it testing for? \n \nA It was testing my mycotoxins in the urine. \n \nQ So  when  you  saw  the  results  of  these  tests,  did  you \nunderstand what they were saying? \n \nA Barely.  Just  through  whatever  the  doctor  had  told  me \nwhatever it was showing me. \n \nQ Okay.   So   when   you   got   those   tests   and   had   the \nconversation with your doctor about whatever it was, what did you \ndo then with those tests results? \n \nA I called – well, I texted my principal. It was I think a Friday \nnight or a Saturday. And then we ended up in a phone call. \n \nQ And who was your principal? \n \nA David McClure. \n \nQ All  right.  And  what  did  you  text  him?  What  did  you  say? \nNot exactly, if you don’t remember, just what was the main gist of \nyour conversation? \n \n*** \n THE WITNESS: When we spoke on the phone, I told him I \nhad  medical  testing  done  and  I  think  I  am  being  exposed  to  mold \nand I believe it is in the classroom. What are my next steps is what \nI asked him. \n \nQ [BY  MS.  BROOKS]:  And  what  was  the  next  step?  What \nhappened after that? \n\nBennett – H300809 \n \n-5- \n \nA When I got to school Monday, he told me I could move to a \ndifferent  room.  I  believe  they  said  the  custodians  looked  into  the \nceiling tiles. \n \nI note that the timeline of the claimant appears to be inaccurate to some degree and that as early \nas March 8, 2022, the claimant had  admitted an  email into evidence with an exchange between \nher  and  Principle  David  McClure  over  her  concerns  with  mold  in  her  classroom.  That  email \nexchange is initiated by the claimant and found at Claimant’s Exhibit 2, pages 1 and 2 and states: \nHi,  there.    I  wanted  to  follow  up  with  the  brief  conversation  Mr. \nGlade had with me this morning about a mold check that happened \nfrom maintenance.   \n \nBeing told that they looked above the ceiling tiles and cleared the \nceiling  of  mold  is  concerning  to  me  and  tells  me  that  this  health \nissue is not being taken seriously.  Now, last spring, insulation did \nfall out of my ceiling and it did have mold on it.  I have a hard time \nbelieving there  were  no  other  pieces  up  there  still  lingering.    That \nbeing said, my main concern is the  air,  and the  HVAC that blows \nall day long, everyday. \n \nI cannot return to my room until: \n* A petri dish has been used in testing for mold \n*  An  indoor  air  mold  test  has  been  done  (and  from  what  I \nunderstand an outdoor air test must also be done outside the room \nas a control sample) \n* And  the  vents  from  the  HVAC  have  been  opened  and  swabbed \nand  tested  or  a  petri-dish  done  for  mold  in  the  actual  vents  and \nHVAC. \nAs stated before in my email yesterday I am very sick. \n \nRecap of yesterday’s email (a few edits were made for clarity): \nLast  Thursday  I  received  notice  and  a  phone  call  from  the  clinic \ndoctor  that  one  of  the  first  tests  done,  the  MOLD  testing,  was \ncomplete and I was “off the chart” and in a highly dangerous range \nfor  2  different  types  of  toxic  molds.    (I  can  provide  results  if \nrequested). \n \nI  reached  out  to  you  to  be  proactive  in  checking  one  of  two  main \nbuildings that I spend most of my days inside in our district. \n\nBennett – H300809 \n \n-6- \n \n1.  C-6 My classroom here at Woodland. \n2. The BARC-Indoor football fieldhouse at the high school \nIn  my  classroom  I  do  not  feel  good.    It’s  a  very  sick  feeling.  \nEveryday.    And  over  the  last  couple  of  years  it  has  become \nprogressively  worse.    And  much  of  how  I  feel  times  up  with  the \nHVAC   system   turning   on.      I   have   been   feeling   exhausted, \nnauseated,  sick,  headaches,  brain  fog,  muscle  fatigue,  itchy,  sinus \npressure,  and  other  random  symptoms  and  illnesses.    I  am  willing \nto discuss more with anyone who might need to know more. \n \nPlease keep me up to date on further testing that will be performed. \n \n Mr. David McClure responded by email minutes later as follows: \nApril, \n \nI will talk with Steve Flickinger at Maintenance again and let him \nknow the severity of the issue and see what needs to be done to get \nthe more thorough testing we need. \n \n On the morning of March 17, 2022, the claimant sent an email to Dr. Megan Duncan,  a \ndeputy superintendent for the respondent. That email is found as Claimant’s Exhibit 2, pages 5 \nand  6.  In  the  email  the  claimant  expressed  her  concerns  about  getting  testing  for  mold  done  as \nsoon as possible in her old C6 classroom and the “BARC” at the Fayetteville High School (the \nfacility where the claimant coached track). The claimant also discussed conditions she found in \nthe  C6  classroom  when  she  re-entered  it  to  get  supplies  for  her  new  classroom.  She  believed \nthose conditions made a case for testing quickly. The conditions she cited included a nonworking \nHVAC dial and small bucket of water and dish soap she had left that contained paint brushes and \nsponges. The claimant stated the water had a “terrible odor and visible mold fuzz.” \n Dr. Duncan responded via email later that morning as follows: \nMs. Bennett, \n \n\nBennett – H300809 \n \n-7- \nThank  you  for  letting  us  know.    Please  let  Mr.  McClure  or  Ms. \nVenters know if you need any materials out of room C6.   \n \nAs  noted,  we  are  in  the  process  of  investigating  the  area  to \ndetermine  the  next  steps.    Thank  you  for  your  patience  as  we  are \ninvestigating. \n \n On April 19, 2022, the claimant emailed Mr. Greg Mones, who is the Director of Human \nResources  for the  respondent.  That  email  is  found  at  Claimant’s  Exhibit  2,  pages  7  and  8. \nFollowing is a portion of that email: \nHi everyone. \n \nThank you again for meeting with me on April 7\nth\n.  I was wanting \nto follow up from that meeting and summarize what we discussed \nand our plan for action on those issues. \n \nBeing  able  to  share  with  Dr.  Duncan  and  Mr.  Mones  the  health \nproblems  I  have  been  having  that  have  progressed  over  the  past \ncouple of years, the medical backing to support the discoveries and \nplan,  as  well  as  what  our  options  are  for  exploring  possible \ncontamination  in  several  district  buildings  that  I  have  occupied, \nwas productive. \n \nMr. Mones had agreed he need to reach out to Worker’s comp as \nwell  as  possibly  through  them,  OSHA  to  understand  what  our \nprotocol would be to professionally test C-6  as well as the BARC \nAthletic  Facility  as  those  are  the  places  I  occupy  most,  outside  of \nmy own home. \n \nWe had mold testing done in our home and was negative for mold \nwhich was a relief for us to know our home is safe.  Built in 2014, \nLead poisoning in our house is not a concern. \n \nMr.  McClure  at  Woodland  has  allowed  me  to  take  over  another \ncommon  space  for  my  classroom  until  professional  testing  can  be \ndone  in  my  C-6  at  Woodland  and  either,  confirmed  for  toxic \ncontaminants and/or toxic mold, or that is eliminated as the source \nof my slow poisoning from lead and toxic mold. \n \nI am eager to hear back from Mr. Mones on what the next steps are \nthrough  HR  and  Dr.  Duncan’s  plan  to  test  my  classroom  and \nHVAC, which  I would like to be  a part of the discussion with the \n\nBennett – H300809 \n \n-8- \nprofessional  industrial  hygienist  or  whoever  is  given  the  task  to \ninvestigate those spaces.  I feel my input might help shed light on \nhow  and  when  I  felt  the  worse,  and  past  incidents  of  leaks  that \nmight be source locations for contaminants. \n \n Mr. Mones returned the claimant’s email on Friday, April 22, 2022.  In  that  email  he \ninformed  the  claimant  that  the  respondent  was  in  the  process  of  selecting  a  company  to  do \ntesting. Mr. Mones also discussed the accommodations being made so the claimant did not have \nto re-enter areas of the school facilities that she believed to be areas of concern. Mr. Mones also \ninvited  the  claimant  to  submit  any  information  that  she  would  like  the  environmental  testing \ncompany to know about the situation to him in writing and he would provide that information to \nthem. \n The  respondents hired  a  company  called  NWA  Mold  Inspector  to  test  the  facility  areas \nthat were of concern to the claimant. On April 23, 2022, Mr. Brian Suggs went to those facilities \nand conducted testing. Mr. Suggs was called as a witness by the respondents. He testified that he \nis  qualified  to  do  environmental  inspections  and  mold  testing.  He  further  testified  that  he  holds \n17 credentials in the field of mold testing. Mr. Suggs also identified his reports from that testing \nwhich were admitted into evidence at Respondents’ Exhibit 3, pages 75-107.  Following  is  a \nportion of Mr. Suggs direct examination testimony: \nQ Was the testing that you did as reflected by the results that \nyou  just  reviewed  done  in  accordance  with  usual  and  customary \nindustry standards? \n \nA Yes. \n \nQ You didn’t take any shortcuts or deviate from any of the \nusual and customary procedures? \n \nA No. \n \n\nBennett – H300809 \n \n-9- \nQ Were  any  limitations  or  restrictions  placed  on  you  by  the \nFayetteville School District? \n \nA No. \n \nQ You were just asked to do mold tests; is that correct? \n \nA Correct. \n \n On cross examination Mr. Suggs made it clear in his testimony the importance of outdoor \ntesting  in  the  area  of  indoor  testing  sites,  along  with  an  average  outdoor  testing  number  that  is \nused  as  a  safeguard  against  failed  outdoor  tests.  Mr.  Suggs  also  confirmed  that  he  collects  the \nsamples  and  sends  them  to  a  laboratory,  in  this  particular  case  Hayes  Microbial  Consulting, \nwhich does the laboratory work and returns the results to him.  \n On April 28, 2022, Mr. Mones sent an email to the claimant regarding the results of the \ntesting  that  was  done  in  the  respondent’s facilities at the claimant’s request. The body of that \nemail follows: \nMs. Bennett, \n \nAs  we  discussed  last  week,  the  district  was  working  to  select  a \ncompany  to  conduct  air  quality  testing  in  your  classroom  at \nWoodland and in the Indoor Practice Facility.  Over the weekend, \nNWA  Mold  Inspector  conducted  an  inspection  of  Woodland  Jr. \nHigh  in  C-6  and  of  the  Indoor  Practice  Facility  and  were  sent  for \nanalysis  to  Hayes  Microbial  Consulting.    The  Clearance  Report \nand the Analysis Report from the testing are attached. \n \nIn  both  facilities,  the  carbon  monoxide  levels  were  within  the \nnormal range.  The relative humidity was within the recommended \nlevels.    The  total  indoor  airborne  mold  spore  counts  were  lower \nthan  the  total  outdoor  control  samples  and  both  facilities  were \nfound to be within the normal range for mold. \n \nWe  are  in  the  process  of  arranging  testing  for  lead  in  the  water  at \nboth  facilities.    As  I  stated  in  my  previous  email,  if  you  have  any \ninformation  you  would  like  the  district  to  share  with  the  testing \ncompany,  you  may  send  the  information  to  me  via  email  and  the \n\nBennett – H300809 \n \n-10- \ndistrict  will  share  it  with  the  testing  company.    Once  testing  is \ncomplete and the district receives results, the results will be shared \nwith you. \n \nIn the meantime, if you have any questions, feel free to reach out. \n \nI note that the testing information provided to the claimant by Mr. Mones is consistent with the \ndocumentation from Hayes Microbial Consulting and Mr. Suggs found at Respondents’ Exhibit \n3, pages 75-107. \n On  April  29,  2022,  the  claimant  sent  an  email  to  multiple  respondent  administrators \nincluding Mr. Mones. That email appears to respond to Mr. Mones April 28, 2022, email which \nstated  the  results  of  the  respondent’s third-party  mold  testing.  The  claimant  expressed  her \n“concerns about the mold spore numbers presented from the testing done.” She also gave advice \non testing for lead in the HVAC system and called into question the accuracy of the testing that \nwas done. I note that multiple emails appear in the record in this matter, sent from the claimant to \nvarious respondent employees and from respondent employees to the claimant. Those emails are, \nto a limited extent, documented in Claimant’s Exhibit 2, pages 1 and 2, 5-10,  12  and  13,  but  a \nmore inclusive collections of emails is found at Respondents’ Exhibit 3, pages 2-43. The emails \nfrom the claimant after her April 29, 2022, response to Mr. Mones’ April 28, 2022, email with \nthe   testing   results   are   primarily   continued   complaints   or   concerns   over   the   testing   and \ncoordination over the claimant’s working locations as she never returned to her original C6 \nclassroom.  \n The claimant made a decision to do her own testing of her old C6 classroom. On May 23, \n2022, she collected and/or tested for mold using a Petri dish setup. The results of those tests are \nfound in a report found at Claimant’s Exhibit 2, pages 14 and 15. On June 26, 2022, the claimant \n\nBennett – H300809 \n \n-11- \nused  a  Zefon  vacuum  dust  collector  to  test  for  mold  in  the  HVAC  system  in  her  old  C6 \nclassroom. The results from her test are found at Claimant’s Exhibit 2, page 20-24. \n The  claimant  sought  medical  treatment  for  mold  exposure  from  Dr.  Keith  Chambers  at \nChambers  Clinic  in  Scottsdale,  Arizona,  in  mid  to  late  2022.  On  September  30,  2022,  Dr. \nChambers authored the following letter regarding the claimant: \nBased  on  the  medical  test  results  from  last  spring  through  the \nsummer,  and  most  recent  medical  testing  completed,  it  is  my \nevaluation  as  her  primary  doctor  to  request  that  in  order  to  move \nforward  with  certain  medical  treatments  she  is  removed  from  any \ntoxic  environment.  Based  upon  my  findings  Ms.  Bennett  cannot \ntolerate  being  exposed  to  an  environment  that  contains  dust  or \nmold  particles.  Doing  so  will  not  only  compromise  her  health \ncondition,   but   delay   improvement   from   the   treatments   I   am \nproviding    for    her.    Although    repetitive    exposure    to    the \naforementioned environment would be extremely detrimental, even \na  single  exposure  will  have  negative  effects  as  she  does  not  have \nthe  capacity  to  release  these  particles  from  her  body  and  have \ndeleterious effects. \n \nPlease  see  test  results  below  that  correlate  medical  testing  with \nhealth  concerns  regarding  the  environment  she  taught  in.  The \nprevious  exposure  correlates  with  medical  tests  performed  and \ncorroborate  with  what  has  been  found  in  her  system.  Her  health \nwill   continue   to   decline   if   not   removed   from   the   toxic \nenvironment. \n \n Dr. Chambers treated the claimant on several other occasions and authored another letter \non July 19, 2023, as follows: \nI am a naturopathic medical doctor with full prescriptive rights for \ntraditional  medications,  as  well  as  obtaining  additional  training  in \nalternative  medications  and  treatments.  I  received  training  from \nRitchie  Shoemaker  M.D.,  a  world-renowned  medical  doctor  who \nspecializes in mold disease diagnosis and treatment. \n \nAccording to the Great Plains Laboratory testing completed, which \nis  a  mainstay  for  mold  testing,  the  fact  that  of  the  Aspergillus \nfamily,  Ochratoxin  A  showed  a  very  high  level  in  the  urine \nsignifying   water   damage   in   the   environment.   In   addition, \n\nBennett – H300809 \n \n-12- \nmycophenolic     acid     was     exorbitantly     elevated     as     well. \nMycophenolic acid is produced by penicillium fungus and has the \npropensity to increase the risk of opportunistic infections. \n \nTo   investigate   this   presence   of   mold   disease,   testing   was \nperformed by use of the ERMI (Environmental Relative Moldiness \nIndex)    test    which    came    back    conclusive    with    elevated \nenvironmental  presence  of  aspergillus  and  penicillium  molds.  The \ncommonality  of  those  two  mold  spores  causes  symptoms  such  as \nshortness  of  breath,  severe  fatigue,  headaches,  nausea,  etc.  Due  to \nthe severity of symptoms present, the quantitative amount of mold \npresent   was   extremely   high   and   caused   a   plethora   of   other \nsymptoms  besides  what  was  listed  above.  This  shows  that  the \nconditions  were  from  the  classroom  environment  at  the  school \nMrs. Bennett worked in. \n \nIn  the  GI  Map  testing  completed  with  our  office,  there  is  a  high \nlevel of elastase presence. Linked below is research that correlates \naspergillus/penicillium, which  is  a  type  of  mold that  was  found  in \nMrs. Bennett’s mycotoxin urine test. \n \nAdditionally,   due   to   the   dysbiosis   of   the   gut   track,   the \nneurotransmitters   were   deficient   as   seen   in   the   Senesco   Lab \ncompleted  12/29/22.  Approximately  70-80%  or  neurotransmitters \nare   made   in   the   gut   track.   Due   to   the   deficiency   in   the \nneurotransmitters, there is a cascading effect of the presentation of \nsymptoms. \n \nIn  the  presence  of  mold  spores,  the  staphylococcus  aureus  grows \nexponentially.  NARES  testing  was  completed  by  swabbing  the \nnasal  passages.  The  staph  bacteria  were  found  in  large  amounts \nand  indicates  the  exposure  and  presence  of  mold.  The  danger  of \nstaph  in  the  nasal  passages  is  an  imbalance  in  the  pituitary  gland, \nwhich  is  the  master  gland  and  regulates  all  of  the  endocrine \nactivity in the body. \n \nIn conclusion, based upon all the testing completed, it’s conclusive \nthat  Mrs.  Bennett  was  not  only  exposed  to mold  but  sustained  the \nsymptoms which properly diagnosed her with mold disease. \n \n Dr.  Chambers  was  called  as  a witness  by  the  claimant  at  the  hearing  in  this  matter.  On \ndirect examination Dr. Chambers was asked about his educational background and his practice as \nfollows: \n\nBennett – H300809 \n \n-13- \nQ And could you please tell us your educational background. \n \nA I  have  degrees  in  biology  and  chemistry.  I  also  have  a \nDoctorate in Naturopathic Medicine, and MBA in management. A \nMasters in International Business. \n \nQ And what is your area of practice? \n \nA My   area   of   practice   is   chronic   disease.   One   of   the \nsubsegments of that is mold disease and Lyme disease. \n \nQ And where do you practice? \n \nA In Scottsdale, Arizona. \n \nQ And what is the name of your clinic? \n \nA Chambers Clinic. \n \nQ And do you practice there alone or are there other doctors? \n \nA Other doctors as well. Eight other doctors. \n \nQ And in your qualifications for your specialty, are you also a \nmedical doctor? \n \nA Yes. \n \nQ And so the education that you’ve had, does that include \nwhat we would just think of as normal medical school? \n \nA Yes. \n \nQ And then what on top of that? \n \nA I have full prescriptive rights and then I have other training \nin   all   of   the   alternative   medicines:   Botanical   medicine,   IV \nmedicine, Chinese medicine, as well as physical medicine. \n \nQ And  does  your  work  background  include  any  experience \nwith toxicology or environmental air situations? \n \nA Yes. I worked as a chemist in environmental toxicology as \nwell  as  I  taught  at  Mizzou  organic  chemistry.  And  I  worked  for  a \n\nBennett – H300809 \n \n-14- \ncompany     called     Watman     (phonetic)     analyzing     different \nenvironmental toxicities. \n \n On cross examination Dr. Chambers was asked additional questions about his educational \nand medical qualifications as follows: \nQ You said you were a Naturopathic Doctor? \n \nA That is correct. I am a naturopathic medical doctor. \n \nQ That is not a specialty recognized by the American Medical \nAssociation? \n \nA That’s right. \n \nQ Okay. You didn’t – you  went  to  separate  medical  school, \nnot to a medical school for an M.D. degree? \n \nA So  the  clarification  on  naturopathic  medical  school  is  you \nhave – it’s a four-year  medical  school  postgraduate  and  you  have \nfull prescriptive rights. And we are recognized as being equivalent \nto a straight M.D., so to speak. \n \nQ Who recognizes you as being equivalent to a straight M.D.? \n \nA Any pharmacy or any insurances. \n \n In  direct  examination  testimony  Dr.  Chambers  made  it  clear  that  he  believes  that  the \nclaimant  suffers  from  mold  disease.  Dr.  Chambers  stated  that  his  opinion  is  within  a  degree  of \nmedical certainty. Dr. Chambers also gave testimony that he had issues with the testing done by \nthe respondents as follows: \nQ Have  you  had  an  opportunity  to  review  the  report  in \nevidence that was done by Hayes Microbial Consulting where they \nlooked at the air in the school? \n \nA Yes. \n \nQ And again, you’ve already testified of your experience in \nenvironmental work, but is there anything that you observed in that \nreport that was concerning to you? \n\nBennett – H300809 \n \n-15- \n \nA With the air handling? \n \nQ Yes. \n \nA So  one  thing  I  noticed  on  the  air  handling  was  the  testing \nwas  very  short.  I  think  it  was  five  minutes  and  in  a  few  different \nlocations.  One  of  the  locations  was  on  top  of  the  desk.  Generally, \nwhen they go and they do an air filtration, my experience, they will \nleave those – first of all, it is on the floor because the spores settle \non the floor. Also, usually it’s a 12- to 24-hour  collection to get a \ntrue composite sample of what is in the room or rooms. \n \nQ And  the  results,  I  believe  in  one  place  is  267  and  another \n200  meters  cubed  within  the  room,  the  C6  room.  What  do  those \nnumbers mean to you? \n \nA So  those  numbers  are  either  at  or  above  the  threshold  to \nshow  that  there  was  indeed  mold  spores  that  are  an  unacceptable \nrange, even with the brief sample collection. \n \n On  cross  examination  Dr.  Chambers  was  asked  about  testing  done  on  the  claimant  for \nmold exposure as follows: \nQ What objective testing of her symptoms did you do? \n \nA As I said, I did the nasal swab. \n \nQ Okay. The nasal swab told you what? \n \nA The  nasal  swab  said – that  explains  that  she  had  been \nexposed to high areas of mold exposure. \n \nQ But it didn’t tell you where that exposure occurred? \n \nA No, sir. \n \nQ You performed  a nares swab on January 26, 2023. Do you \nrecall that or have the records related to that? \n \nA Yes. \n \nQ And she did have staph as a result of the January 26, 2023 \nculture; correct? \n\nBennett – H300809 \n \n-16- \n \nA Yes. \n \nQ But  did  not  have – and  I  am  going  to  butcher  this  word – \nAspergillus? \n \nA That’s right. \n \nQ What is Aspergillus? \n \nA Aspergillus is a particular type of bacteria. \n \nQ Mold? \n \nA It is related to mold, yes. \n \nQ Okay. Is that an indication as mold disease? \n \nA When you have Aspergillus? \n \nQ Yes. \n \nA It is often accompanied, but it is not diagnosed by that. \n \nQ Okay.  According  to  your  test  results,  she  did  not  have  the \nAspergillus  in  the  January  26,  2023  culture,  but  did  have  it  in  the \nJuly 12, ’23 culture? \n \nA Yes. \n \nQ So  she  got  Aspergillus  somewhere  between  those  two \ndates. Is that consistent with your test results? \n \nA That would be. \n \nQ Okay. \n \nA Because  continual  exposure,  they  can  morph  into  other \nthings as you go along. \n \nQ And she did not have the staph in July, so that was gone? \n \nA After treatment. \n \n\nBennett – H300809 \n \n-17- \nQ Okay. She wasn’t in the C6 classroom between January 26, \n2023 and July 12, 2023; was she? \n \nA I wasn’t – \n \nQ You don’t have any idea where she was? \n \nA All I know is she was doing what she does in school. \n \nQ Okay.  but  if  she  was  not  in  the  C6  classroom,  you  can \ntestify that she didn’t get the Aspergillus in the C6 classroom at \nWoodland Junior High; correct? \n \nA That would make sense. That is a commensurate bacteria. \n \n The respondents in this matter called Joe Henry as a witness. Mr. Henry is employed by \nATOKA  Environmental  Engineering  Consulting  Firm,  located  in  Little  Rock,  Arkansas.  Mr. \nHenry’s deposition, taken on April 30, 2024, was also admitted into evidence as Claimant’s \nExhibit 3. Mr. Henry testified that his firm is a “dedicated environmental consulting company \nthat is involved in all phases of environmental issues, both indoor and outdoor.” Mr. Henry’s \ncurriculum vitae and list of litigation cases is found at Respondents’ Exhibit 5, pages 1-9.  It \nincludes   a   B.S.   in  Biology/Microbiology   from   the   University   of   Arkansas   and   graduate \nMicrobiology Studies  from  the  Memphis  State  University.  Also  included  are  several  litigation \ncases where Mr. Henry served as an expert witness for both plaintiffs and defendants. \n On  direct  examination  Mr.  Henry  was  asked  about  his  review  of  the  present  matter  and \nhis opinions about that review as follows:  \nQ Okay. And you and  I have never met before  I got in touch \nwith you in connection with this case; is that right? \n \nA Have not. That is correct. \n \nQ At my request, did you review certain documents? \n \nA I did. \n\nBennett – H300809 \n \n-18- \n \nQ And  did  those  consist  of  tests  done  by  Brian  Suggs  at  the \nWoodland Junior High? \n \nA Yes. \n \nQ Along  with  two  other  test  results  that  were  done  by  Ms. \nBennett? \n \nA Yes. \n \nQ Okay. Let me start first with the test done by Brian Suggs. \nDo you know Brian? \n \nA I do not. \n \nQ Okay.  Were  the  test  results  that  he  produced  and  the  lab \nthat  he  used  produced,  were  those  the  type  of  mold  testing  results \nthat you normally see? \n \nA Usually. \n \nQ Okay. And did you review those? \n \nA I am sorry? \n \nQ Did  you  review  those?  Let’s  talk  first  about  C6,  the \nclassroom. \n \nA Okay. \n \nQ Did you review those? \n \nA I did. \n \nQ And  those  have  both  an  indoor  component  and  an  outdoor \ncomponent; is that correct? \n \nA That is true. \n \nQ Why is that important? \n \nA Well,  that  raises  a  lot  of  issues.  The  consensus  over  the \nyears  has  been  that  when you  take  samples  that  you  want  to \ndetermine their origin or if, in  fact, they  are hazardous or toxic or \n\nBennett – H300809 \n \n-19- \nharmful in some way, then you compare those test results with the \nresults taken outdoors and that is why the outdoor sample is listed \nin this battery of tests. \n \nQ Okay. Mold is everywhere? \n \nA Mold is everywhere. \n \nQ Bunches of different kinds? \n \nA A lot of different kinds. \n \nQ Okay. I am going to try to be fairly general here. When you \nreviewed  the  test  results  that  Brian  did,  was  there  anything  that \nconcerned yo from a safety standpoint? \n \nA No. \n \nQ None  of  the  rest  of  us,  or  maybe  some  of  the  rest  of  the \nfolks here have, but I am not an expert in mold tests, but generally \nspeaking, was the volume of mold that showed up either inside or \noutside alarming or significant? \n \nA They were relatively minor. \n \nQ Would you consider those to be clean environment? \n \nA I would, as designated by the definition of clean. \n \nQ Okay. As far as the individual molds themselves, was there \nanything  identified  inside  the  classroom  or  inside  the  indoor \npractice facility that isn’t present in the general atmosphere? \n \nA The  profile  of  molds  that  were  present  were  pretty  typical \nfor indoor environments. \n \n Mr.  Henry  was  also  asked  on  direct  examination  about  the  testing  performed  by  the \nclaimant as follows: \nQ Okay. Did you review – I think you have already indicated \nyou reviewed the test done by Ms. Bennett. \n \nA Yes. \n \n\nBennett – H300809 \n \n-20- \nQ Okay. One of them, I think, was a Petri dish test? \n \nA True. \n \nQ Can you tell us what, if anything, you gleaned from the test, \nthe Petri dish test? \n \nA Well, laymen, people who are interested to try to figure out \nwhat is going on in their house, can buy a Petri dish filled with an \nagar  that  would  grow  mold  if  you  expose  it  to  the  air.  And  as \nintriguing  as  that  may  sound,  it  is  really  not  a  reliable  method  of \ngetting an idea of what is in the air or how much or where it came \nfrom. \n \nQ Okay. \n \nA And  it  is  just  you  expose  a  plate  to  the  air  for  15,  20,  30 \nminutes.  And  molds  are  typically  blowing  around  in  the  air  from \nair currents and some of them will settle on the surface of that agar \nand you could incubate it and it will grow. \n \nQ If I put a Petri dish in this room and left it for X number of \nminutes  or  hours  and  then  went  through  the  incubation  process, \nwhat would you expect? \n \nA There was either mold in the air or there wasn’t. \n \nQ Okay.  As  far  as  being  able  to  use  that  test  to  determine \nwhether  there  was  something  inside  the  classroom  that  wasn’t \npresent outside, does that test tell you anything? \n \nA Only if whatever was present was something that raised an \neyebrow. \n \nQ And did it? \n \nA No. \n \nQ There is also an ERMI test that she did. \n \nA Uh-huh. \n \nQ Is that a “yes”? \n \nA Yes. Sorry. \n\nBennett – H300809 \n \n-21- \n \nQ What is the ERMI test for? \n \nA Well,  the  ERMI  test  was  developed  by  the  government  to \ntry to better evaluate indoor air quality concerning mold growth. \n \nQ Okay. \n \nA And  did  a  lot  of  work  on  it  and  came  up  with  this \nmoldiness   index   and   this   method   was   developed.   And   it   is \nconducted  and  run  in  a  laboratory  by  collecting  dust  from  around \nthe  house.  And  typically  it  is  one  or  two  square  meters  of  area \nusing different types of collection material. I think Swiffer is used \nnowadays  pretty  typically  to  collect  mold,  dust,  and  those  kind  of \nthings that would be present in dust. \n \n Then that is sent in to a laboratory that is equipped with the \nequipment to analyze that, and also to convert the test results to an \nindex or a number that could tell us whether the  environment in a \nhouse was or had been mold in it at some particular time. \n \n And  based  on  that  index  or  the  number,  that  it  would  be \neither  low,  no  hazard;  middle,  relative  hazard;  and  then  a  high \nnumber with possibly a good hazard or a bad hazard, rather. \n \nQ And did you review her results? \n \nA I did. \n \nQ And what was your – \n \nA I don’t remember what the number was. \n \nQ Okay. \n \nA  I think it was a little on the high side, if I am not mistaken. \n \nQ Okay. Is that a test that you routinely use in your business? \n \nA No, we don’t. \n \nQ Why? \n \nA Well,  there  are  restrictions  about  what  you  can  interpret \nfrom   that   mold   test.   It   is   scientifically   thought   out.   It   is \n\nBennett – H300809 \n \n-22- \nscientifically analyzed using statistical evaluations and all that kind \nof thing. And it will pick up the DNA from any kind of mold that \nis  present.  I  think  there  are  something  like  36  different  molds  on \nthis  panel  of  molds  that  are  tested  for  and  typically  they  are  ones \nthat you would normally see indoors and some that you would see \noutdoors.  And  they  compile  all  of  that  information  into  the  score \nthat I’ve described. \n \n Now,  if  I  were  going  to  come  to  a  conclusion  about  what \nthat meant, that tells me  that at one time if there  is a high score – \nand  this  could  be  over  a  long  period  of  time.  It  could  have  been \nover five years, ten years. It depends on how clean the house is. It \ndepends on how much outside air is introduced into the house. And \nit  depends  on  how  much  is  collected  in  hidden  areas  that  you \nwould normally go look for dust. Most of us don’t clean up under a \ncouch or in the back of a closet or somewhere like that as often as \nwe would a tabletop, for example. \n \n So the numbers and test results that we get from that would \nindicate  that,  okay,  maybe  there  was  at  one  time  a  lot  of  mold \nthere. Where did it come from? Did you take one outside? Did you \ntake  one  or  two  or  three  or  four  in  the  rest  of  the  house  and  see \nwhat  those  were?  What  does  the  rest  of  the  house  look  like?  One \ntest is not going to tell us as much. It may say, okay, if it is a high \nnumber, it may be prone to have been a problem at one time or it \ncould  possibly  be  something  current,  but  we  don’t  know  that \nunless we take other types of tests that we normally run indoors. \n \nQ Okay.  From  that  test  result,  can  you  say  anything  about \nwhether   there   was   something   unusual   or   significant   in   that \nclassroom? \n \nA I really can’t. \n \nQ Okay. \n \nA And if I could give you a for instance, a hypothetical. If, for \nexample – and we have  been trained over the years to know what \nto  look  for  in  the  environment.  But  for  example,  I  go  into  a \nclassroom  or  a  bedroom  or  wherever  and  take  a  series  of  tests  to \nsee what the profile and  the concentration of mold spores are in  a \ngiven  environment  and  there  is  one  particular  mold  that  is  sky \nhigh, say in the neighborhood of 25,000 spores per cubic meter are \nthere  and  it  is  kind  of  a  loner.  There  may  not  be  but  one  or  two \nother  molds  present.  That  tells  me  that  has  a  source  that  is \n\nBennett – H300809 \n \n-23- \nlocalized and that it is giving off a large number or spores into the \nair  because  the  air  currents  will  disturb  the  colonies  and  you  will \nget  a  higher  number  inside  of  a  contained  environment  like  this \nroom. \n \n So if I saw something like that, I would say, okay, we have \ngot a problem. We need to look further and see where that problem \nis originating so we can get rid of it. \n \nQ And  in  the  ERMI  test  that  she  provided,  the  results  you \nreviewed, was there anything alarming? \n \nA Well,  if  I  used  that  and  compared  it  to  the  test  results  that \nwere  done  from  the  mold  sampling,  I  couldn’t  really  make  a \ncorrelation. \n \nQ Okay.  Some  people  are  more  susceptible  to  mold  than \nothers; correct? \n \nA True. \n \nQ Okay.  And  I  guess  some  molds  are  more  dangerous  than \nothers? \n \nA Indeed they are. \n \nQ Did  you  notice  anything  in  any  of  these  test  results  where \nthere was a mold that was particularly dangerous from a scientific \nstandpoint? \n \nA Not comparing to what is found in the literature, no. \n \n Mr.  Henry  was  also  questioned  on  direct  examination  about  the  source  of  mold  for \ninstances where a person is susceptible to it and its effects as follows: \nQ Okay.  If  you  are  going  to  try  to  make  some  conclusion \nabout  the  source  of  mold  in  a  person  who  is  susceptible  to  mold, \nwould  you  necessarily  need  to  exclude  other  places  of  possible \nexposure? \n \nA Certainly. \n \nQ Like in a house where they live? \n \n\nBennett – H300809 \n \n-24- \nA Yes, sir. \n \nQ And   would   it   be   fair   from   a   scientific   standpoint   to \nconclude that Ms. Bennett’s problem was mold exposure, if she, in \nfact, has one, was due to the classroom when her house was never \ntested? \n \nA It  would  be  nice  to  know  what  her  history  had  been  and \nwhether  or  not  she  had  been  predisposed;  whether  or  not  she  has \nunderlying autoimmune conditions. Any of those things are factors \nthat  would  signal  whether  she  is  allergenic  or  not  allergenic.  I \ndon’t know that, but it is something that would be important to \nknow. It would be important to know the background of where she \nhad lived previously and what exposures might have occurred then. \n \nQ Okay. So in the absence of that kind of testing, it would be \nspeculation or conjecture? \n \nA It’s speculation. \n \n On  direct  examination  Mr.  Henry  was  also  asked  about  questions  he  answered  from  the \nclaimant’s attorney in his prehearing deposition, found at Claimant’s Exhibit 3, as follows: \nQ Okay.  Now,  we  have  already  established  mold  can  be  a \nproblem anywhere; correct? \n \nA It can. \n \nQ And you gave your deposition not long ago to Ms. Brooks; \nis that correct, in connection with this case? \n \nA Yes, I did. \n \nQ And she showed you some photographs that showed water \ndamage and you agreed that that could be a problem? \n \nA Oh, definitely. Sure. \n \nQ If left unattended; correct? \n \nA Yes, sir; that is correct. \n \nQ And do you know when that water damage occurred? \n \n\nBennett – H300809 \n \n-25- \nA I do not. \n \nQ Or when it was corrected? \n \nA I do not. \n \nQ Or how long it was there. \n \nA I do not. \n \nQ Okay. HVAC systems, they can be a problem; correct? \n \nA They are a localized source of mold problems, yes. \n \nQ Okay.  And  we  don’t  know  what  this  system  was  like; \ncorrect? \n \nA We do not. \n \n On  cross  examination  Mr.  Henry  was  asked  about  mold  being  everywhere  and  the \ndifference between a clean area and a moldy area as follows: \nQ Mr.  Henry,  so  if  there  is  mold  everywhere,  mold  outside, \nmold inside, why don’t we try to eradicate outdoor mold? Why is it \nindoor mold that seems to bother us? \n \nA Well,  that  is  an  interesting  question.  Indoor  mold  tends  to \nbe – when  we  are  exposed  to  larger  quantities  of  mold  in  an \nenvironment like in our home that is moldy or has water damage at \nsome point, they are constantly breathing that in in a concentrated \nsource. \n \nQ So there is no fresh air to kind of move that out? \n \nA There is no fresh out to dilute it. \n \nQ Okay. So when you say particularly dangerous mold, would \nyou  agree  that  the  standard  is  no  mold  is  the  best  mold?  That  any \nmold in an indoor environment can be dangerous? \n \nA Well, not necessarily. \n \n\nBennett – H300809 \n \n-26- \nQ Okay. Well, you said that the mold sample that she took in \nthese  Petri  dishes  did  not  raise  your  eyebrows  or  I  think  that  is \nwhat Mr. Arnold said. \n \nA I don’t use those as a tool and I don’t rely on them. \n \nQ What  did  those  show?  What  kind  of  mold  was  in  those \ndishes? \n \nA I don’t recall what was on the plates or what the test results \nwere. \n \nQ Okay. So what is the definition of clean? \n \nA The industry, the indoor air quality industry is not regulated \nby any branch of the government. There are no standards by which \nwe have to meet in order to qualify a home or a business or a plant \nwhereby a certain level of mold spore density has to be maintained. \n \n Now, there are limits based on all the research that qualifies \na  home  as  being  either  clean  or  moldy.  Now,  that  is  not  implying \ninfection.  That  is  not  implying  sensitivity  or  allergenic  responses. \nThis  is  implying  whether  a  home  should  be  cleaned  up  or  if  it  is \nnormal, which would be any value less than 1,000 mold spores per \ncubic meter of air. Anything growing over about 1,200 – I’m sorry, \nabout 1,300 mold spores would be considered moldy. \n \n The   claimant   has   asked   the   Commission to   determine   whether   she   sustained   a \ncompensable  occupational  illness  to  her  body  as  a  whole  due  to  exposure  to  mold  in  the \nworkplace on or about February 28, 2021. Here, the claimant’s claim is for a compensable \noccupational   disease,   specifically   mold   disease.   Pursuant   to   A.C.A.   §11-9-601(e)(1),   an \noccupational disease is any disease that results in disability and arises out of and in the course of \nemployment.  Furthermore,  the  claimant  has  the  burden  of  proving  by  a  preponderance  of  the \nevidence  that  a  causal  connection  exists  between  her  occupation  or  employment  and  the \noccupational disease, A.C.A. §11-9-601(e)(1)(B). \n\nBennett – H300809 \n \n-27- \n Dr.  Chambers,  during  his  in-person  testimony,  stated  that  he  believed  the  claimant  to \nhave  mold  disease  within  a  degree  of  medical  certainty.  While  I  am  not  making  a  finding  as \nsuch, I will base my opinion on the supposition that the claimant does have mold disease. Given \nthat  supposition,  that  mold  disease  exists  within  the  claimant,  she  must  still  show  a  causal \nconnection   between   her   mold   disease   and   her   employment   with   the   respondent   to   a \npreponderance of the evidence. I find that the claimant is unable to do so. \n The  respondents had  a  qualified  third  party  perform  unrestricted  testing  on  areas  that \nconcern the claimant. Those areas were areas that the claimant spent the vast majority of her time \nworking in for the respondent. Those areas, when tested, were within normal range. The claimant \nis unable to prove that mold existed anywhere in the respondents’ facilities that would have \naffected  her  health  or  caused  mold  disease.  The  claimant  conducted  her  own  testing  after  the \ntesting done by the respondents. The claimant is not qualified or specialized in doing such tests \nbut wishes the Commission to rely upon them. In fact, those tests according to Mr. Henry, who is \nan expert in such matters, were normal or unrevealing of mold issues in the areas she tested. The \nclaimant’s own testing also failed to account for any outdoor mold around the respondents’ \nfacilities  she  tested,  as  she  did  not  do  any  outdoor  testing.  The  tests  performed  by  the  claimant \nhave very little weight. The testing performed by the respondents, who hired a third-party mold \ninspector  with  proper  qualifications,  gives way  to  much  more  weight  in  determining  the  mold \nlevels  in  the  respondent’s facilities. Those tests found the building to be “clean” as it relates to \nmold levels. \nThe  credibility  of  witnesses  and  the  weight  to  be  given  to  their  testimony  are  matters \nsolely within the province of the Commission.  Ringier America v. Combs, 41 Ark. App. 47, 849 \nS.W.2d 1 (1993). \n\nBennett – H300809 \n \n-28- \n The claimant’s husband was also listed as witness in this matter but was unavailable for \nthe hearing due to an emergency. The parties agreed to the following regarding the claimant’s \nhusband’s testimony: \nMS.  BROOKS:  Your  Honor,  we  were  going  to – I can’t \nremember  what  you  said  yesterday  about  Mr.  Bennett  who  could \nnot be here. \n \n THE COURT: Sure. Let’s take that up now. I think it is an \nappropriate time to do so. \n \n Yesterday,  my  office  received  an  email  and  then  we  had  a \ntelephone  conference  between  the  attorneys  in  this  matter,  Mr. \nArnold and Ms. Brooks, regarding I believe it was the Claimant’s \nspouse and he was anticipated to be a witness in this matter today, \nbut  had  a  personal  emergency  that  required  his  out-of-state  travel. \nHe is no longer in Arkansas. \n \n It  is  my  understanding  that  Mr.  Arnold  has  agreed  to \nstipulate that any of the testimony given by the Claimant would be \nconfirmed by her spouse’s testimony about I guess – well, I don’t \nwant  to  get  into  the  details,  but  his  testimony  would  corroborate \nher testimony. \n \n MR.  ARNOLD:  That  is  correct.  I  think  we  also  discussed \nfrom a credibility standpoint, her credibility would attach to him as \nwell; is that correct? \n \n THE  COURT:  I  believe  we  did  discuss  that,  that  I  would \nrely  upon  her  credibility  for  his  credibility  as  well  and  I  think  the \nparties have agreed to that; is that correct? \n \n MR. ARNOLD: That is correct. \n \n MS. BROOKS: Yes, Your Honor. \n \n MR. ARNOLD: And I am agreeable to that stipulation. \n \n The claimant gave cross examination testimony about her telling a medical provider that \nshe had her home tested for mold and “there were no red flags” as follows: \n\nBennett – H300809 \n \n-29- \nQ Maybe I am getting a bit ahead of myself right now, but the \nfolks in St. Louis – and there is a report or two from them in here – \nbut you told me that you had tested your home and that there were \nno reflags: correct? \n \nA Yes. \n \nQ That was a lie; wasn’t it? \n \nA I  did  test  the  home.  It  was  damaged  in  the  mail.  My \nhusband and I decided to go through the house again and decide if \nwe were going to further test again and we did not. \n \nQ When  I  took  your  deposition,  I  asked  you  if  you  had  done \nany  tests,  any  tests  on  your  home,  your  car  or  anywhere  else  and \nyou  told  me  no.  And  now  for  the  first  time  you  are  saying,  yeah, \nwe did test it, but the results were lost in the mail? \n \nA At the time of the deposition, I didn’t remember. It was \ndone – we just talked about this the other day. It was done right at \nthe  beginning.  It  was  damaged  in  the  mail  by  the  company.  They \ncalled us and I said I am not going to retest, but I don’t think my \nhouse has mold in it. I know where I feel sick. \n \nQ Okay. Because you told the people at the school, you know, \nthat you spent the majority of your time in three places. Okay? \n \nA Yes. \n \nQ The classroom at C6 and you said that you were there five \nto six hours a day? \n \nA Yes. \n \nQ In that one room? \n \nA In that room. \n \nQ Without leaving? \n \nA No. I even ate my lunch in there. \n \nQ All right. Did you teach in the summer in that room? \n \nA No. \n\nBennett – H300809 \n \n-30- \n \nQ Okay. So would you teach for roughly eight or nine months \nout of the year in that room? \n \nA Probably nine to ten months out of the year, yes, sir. \n \nQ Okay. The second area you identified was the – I think we \ntalked about the BARC? \n \nA The BARC is what they called it, yes. \n \nQ Okay. Tell me what those initials stand for. \n \nA Bulldog – I have no idea. \n \nQ Okay. B-A-R-C? \n \nA B-A-R-C. It’s an acronym, yes. \n \nQ Okay. It is the indoor practice facility? \n \nA Yes, sir. \n \nQ And how many hours a day would you spend there? \n \nA There was two days a week, not back to back, that I would \nspend a couple of hours with the pole vaulters. \n \nQ Okay. And was that year-round or did you practice outside? \n \nA We would go outside when the weather got better. \n \nQ Okay.  As  a  matter  of  fact,  I  think  in  some  of  the  emails \nbetween  you  and  the  school  district,  you  generally  started  the \nindoor training around Halloween? \n \nA Yes. \n \nQ Okay.  So  you  would  spend  a  couple  of  hours  a  couple  of \ndays a week for a period of four or five months in the wintertime? \n \nA Yes. I would say that is about right. \n \nQ Okay.  And  the  third  place  that  you  identified  was  your \nhome? \n\nBennett – H300809 \n \n-31- \n \nA Yes. \n \nQ And how many hours a day do you spend in your home? \n \nA I don’t know. Sleep hours. Dinner hours. Weekends. \n \nQ Yes. \n \nA Yes. \n \nQ How many hours a day? \n \nA Do you want me to do the math? \n \nQ Yeah. \n \nA I  get  home  at  4:30  or  5:00,  so  that  is – I  don’t  know, \nhonestly. Normal hours, I would go home, get home between 4:00 \nand 5:00, unless I had to go to the BARC to do pole vault practice \nin the evenings, and a couple of days a week for that, and then the \nweekends.  So  for  48  hours  on  the  weekend  and  12  to  14  hours  at \nnight sleeping, yeah. \n \nQ Okay.  So  without  question,  the  majority  of  your  time  was \nspent in your home and not in C6 or in BARC? \n \nA Yes. \n \nQ Okay.  And  at  your  request,  the  school  had  a  professional \ncome  in  and  test  your  class  and  BARC  and  those  test  results  are \nhere before the Judge today. Yet, the place you have spent the most \ntime is your home and we don’t have any testing there? \n \nA Correct. \n \nQ Despite  the  fact  that  you  told  your  doctors  that  you  had \ndone it and there weren’t any red flags? \n \nA There is no testing done, yes. \n \nQ Why did you lie to your doctors? \n \nA I don’t remember. I do not believe my house had mold in it. \nI still stand to that. \n\nBennett – H300809 \n \n-32- \n \nQ Okay.  You  didn’t  think  the  schoolroom  had  mold  in  it \nbefore the testing, did you, Ms. Bennett? \n \nA Mold  wasn’t  even  in  my  brain  before  the  testing.  That \nwasn’t even something that I knew anything about it. \n \n The  claimant  was  also  asked  on  cross  examination  about  relating  information  to  the \nrespondents that mold testing was done in her home, and it was negative as follows: \nQ Okay. I am referring now to Page 10 on the Respondents’ \nNonmedical Exhibits. You talk about here the three places that you \nspent 99 percent of your time. You state, “I will be having testing \ndone in my own home as well.” \n \n So you knew that that was important? \n \nA Yes. If I stated it, I thought it was at this time. \n \nQ Okay.  I  want  to  call  your  attention – and  I  will  have  you \nread this. Let’s look at Page 15 of Respondents’ hearing exhibit. I \nhave a sentence in the middle of that circled here and highlighted. \nWould you read what your April 19, 2022 email to the Fayetteville \nSchool District representative says. \n \nA In the red? \n \nQ Yes. \n \nA “We had mold testing done in our home and it was negative \nfor mold which was a relief for us to know our home is safe.” \n \nQ Okay. And that is a lie? \n \nA I don’t remember results from a test like that. \n \nQ You didn’t do it other than the other that got lost in the mail \nor whatever. \n \nA I don’t know. I don’t know how to answer that. I don’t \nremember doing a test result that gave me a negative or anything. \n \n\nBennett – H300809 \n \n-33- \nQ Okay.  So  the  statement – I  am  going  to  read  it  myself – \n“We had mold testing done in our home and it was negative for \nmold which was a relief for us to know our home is safe.” \n \n That is an inaccurate, false statement? \n \nA I  do  not  have  results  from  a  test  that  I  stated  that  I  had \ndone. \n \nQ Why did you lie to them? \n \nA I don’t remember that. I can’t answer that question. \n \n Given the importance of finding the source of the mold that the claimant believes caused \nher  alleged  mold  disease  and  the  claimant’s  dishonesty  to  a  medical  provider  and  to  the \nrespondents, I find the claimant’s credibility to be low. The claimant spent the majority of her \ntime  in  her  home  and  did  not  have  her  home  tested,  then  was  untruthful  about  doing  so.  The \nclaimant states that she and her husband inspected the home for mold and found it safe. Trained \nand qualified mold inspectors cannot do what the claimant claims to have done. To determine the \npresence of mold, tests must be performed, and laboratories must determine the results. But the \nclaimant and her husband’s untrained eye making such a determination is simply unreasonable. \nThe  claimant  may  very  well  suffer  from  mold  disease,  but  she  is  unable  to  prove  by  a \npreponderance  of  the  evidence  that  any  respondent  facility  is  causally  linked  or  related  to  her \nalleged mold disease. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n \n\nBennett – H300809 \n \n-34- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nMarch  4,  2024,  and  contained  in  an  Amended Pre-hearing  Order  filed March  12,  2024,  are \nhereby accepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \na  compensable  occupational  illness  to  her  body  as  a  whole  due  to  exposure  to  mold  in  the \nworkplace on or about February 28, 2021. \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto  medical  treatment  for  her  alleged  occupational  illness  due  to  exposure  to  mold  in  the \nworkplace. \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":57994,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H300809 APRIL BENNETT, Employee CLAIMANT FAYETTEVILLE PUBLIC SCHOOLS, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT OPINION FILED AUGUST 12, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, ...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["back","repetitive"],"fetchedAt":"2026-05-19T22:49:56.458Z"},{"id":"alj-H103764-2024-08-12","awccNumber":"H103764","decisionDate":"2024-08-12","decisionYear":2024,"opinionType":"alj","claimantName":"Stephanie Barnett","employerName":"Booneville Human Development Center","title":"BARNETT VS. BOONEVILLE HUMAN DEVELOPMENT CENTER AWCC# H103764 August 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BARNETT_STEPHANIE_H103764_20240812.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BARNETT_STEPHANIE_H103764_20240812.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H103764 \n \nSTEPHANIE BARNETT,  Employee                                                             CLAIMANT \n \nBOONEVILLE HUMAN DEVELOPMENT CENTER, Employer               RESPONDENT                                                              \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier                                   RESPONDENT \n \n \n \n OPINION/ORDER FILED AUGUST 12, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents   represented   by CHARLES  H.   MCLEMORE,  Attorney, Little   Rock, \nArkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n This claim involves an injury date of March 24, 2021.  On June 3, 2021, claimant \nfiled Form AR-C requesting additional compensation benefits.  A hearing was scheduled \non  the  claimant’s  claim  with  claimant  represented  by  Attorney  Michael  Hamby  for \nSeptember  27,  2021.    That  hearing  was  subsequently  canceled  due  to  health  issues \ninvolving Attorney Hamby. \nThereafter,  Attorney  Jarid  Kinder  began  representing  the  claimant.    Attorney \nKinder subsequently filed a Motion to Withdraw as Counsel on July 5, 2022, stating that \nclaimant had failed to maintain contact with him.  Attorney Kinder’s Motion to Withdraw \n\nBarnett – H103764 \n \n2 \n \nwas granted by the Full Commission in an Order filed July 15, 2022.  Since that time no \nfurther action has been taken to prosecute this claim and as a result, respondent filed a \nMotion to Dismiss on June 5, 2024. \nA hearing was scheduled on the respondent’s motion for August 5, 2024.   Notice \nof the hearing was sent to claimant at her last known address by certified mail and was \nreturned by the Post Office as “Unclaimed.”  Claimant did not appear at the hearing and \nhas not responded to the respondent’s motion. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2475,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H103764 STEPHANIE BARNETT, Employee CLAIMANT BOONEVILLE HUMAN DEVELOPMENT CENTER, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION/ORDER FILED AUGUST 12, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort ...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:49:58.519Z"},{"id":"alj-H305182-2024-08-12","awccNumber":"H305182","decisionDate":"2024-08-12","decisionYear":2024,"opinionType":"alj","claimantName":"Andrea Ewton","employerName":"Dardanelle Public Schools","title":"EWTON VS. DARDANELLE PUBLIC SCHOOLS AWCC# H305182 August 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/EWTON_ANDREA_H305182_20240812.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EWTON_ANDREA_H305182_20240812.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H305182 \n \nANDREA EWTON, Employee                                                                        CLAIMANT                               \n \nDARDANELLE PUBLIC SCHOOLS, Employer                                       RESPONDENT                                                   \n \nARKANSAS SCHOOL BOARDS ASSOCIATION WCT, Carrier             RESPONDENT                                                                                       \n \n \n \n OPINION FILED AUGUST 12, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   GREGORY   K.   STEWART   in \nRussellville, Pope County, Arkansas. \n \nClaimant represented by ANDY L. CALDWELL, Attorney, Little Rock, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 1, 2024, the above captioned claim came on for hearing at Russellville, \nArkansas.  A pre-hearing conference was conducted on May 29, 2024 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The  employee/employer/carrier  relationship  existed  among  the  parties  on \nAugust 15, 2023. \n 3.   Claimant was earning an average weekly wage of $132.64 which would entitle \nher to compensation at the rate of $88.00 per week. \n\nEwton – H305182 \n \n 2 \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injury to claimant’s left knee and right ankle on August 15,  \n2023. \n 2.    Related medical. \n 3.    Temporary total disability benefits from August 16, 2023 through a date yet to \nbe determined. \n 4.   Attorney’s fee. \n At the time of the hearing claimant clarified that she is requesting temporary total \ndisability benefits beginning August 16, 2023 and continuing through June 22, 2024. \n The claimant contends she sustained injuries to her right ankle and left knee in the \ncourse and scope of her employment which resulted in the need for treatment beginning \non  or  about  August  15,  2023.    Respondents  have  controverted  the  claim.    Claimant \ncontends she is entitled to temporary total disability from August 16, 2023 through June \n22,  2024, reasonable and necessary medical treatment, and attorney’s fees.  All other \nissues are reserved. \n The  respondents  contend that  claimant  did  not  suffer  a  compensable  injury  on \nAugust 15,  2023.   She  was  not  in the  course  and  scope  of  her  employment  when  she \ninjured her left knee and right ankle. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nEwton – H305182 \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non May 29, 2024 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.       Claimant  has failed  to  prove  by  a  preponderance  of  the  evidence  that  she \nsuffered  a  compensable injury  to  her  left  knee  and  right  ankle  on  August  15,  2023.  \nSpecifically, claimant was not performing “employment services” at the time of her injury. \n \n \n FACTUAL BACKGROUND \n The claimant is a 41-year-old woman who periodically worked for respondent as a \nsubstitute  custodian at  multiple  school  buildings  in  Dardanelle.    On  August  14,  2023 \nclaimant was contacted by Rebecca (“Becca”) Manatt to work the next day.    \n Claimant testified that on August 15, 2023, she reported for work at respondent’s \nCentral Office where she talked to Susie Howell, received keys, and did some cleaning \nat the Central Office building.  Claimant then drove to the Intermediate School office to fill \nout a time sheet and get keys for the gym and a tech lab building.  Claimant testified that \nshe  received  the  keys  from  Manatt  and  then  drove  her  car  across  campus  to  those \nbuildings.  She then testified as follows: \n  Q And what did you do once you parked? \n \n  A Once I parked, I got to - - I went up to the gym to see if \n  anybody was in there to let me in and there wasn’t because I \n  didn’t have the right set of keys. \n \n  Q So then what did you do? \n \n\nEwton – H305182 \n \n4 \n \n  A I went back to my car to get my bottle of water and get \n  the other set of keys that I needed to go start the agra building \n  and the electronics building. \n \n  Q So did you make it to your car? \n \n  A No, sir, I did not.  I stepped off of the sidewalk and \n  twisted my ankle and broke it. \n \n \n Claimant then got back in her car and drove to the Intermediate School office to \nreport  the  injury.    In  the  office  claimant  was  seen  by  April  McGuire,  the  school  nurse.  \nMcGuire  gave  claimant  workers’ compensation paperwork  to  complete and  they  called \nMisty Thompson, claim supervisor at the Arkansas School Boards Association, to report \nthe injury.   \n During that conversation Thompson informed claimant that respondent would not \naccept the claim as compensable and that any treatment would be at her expense. \n Claimant has filed this claim contending that she suffered a compensable injury to \nher left knee and right ankle on August 15, 2023.  She seeks payment of related medical \ntreatment as well as temporary total disability benefits, and a controverted attorney fee. \n \n \nADJUDICATION \n \n Claimant contends  that  she  suffered  a compensable  injury  to  her  left  knee  and \nright ankle when she stepped off a curb while working for respondent on August 15, 2023.  \nClaimant’s claim is for a specific injury.   In  order  to  prove  a  compensable  injury  as  the \nresult of a specific incident that is identifiable by time and place of occurrence, a claimant \nmust establish by a preponderance of the evidence (1) an injury arising out of and in the \ncourse of employment; (2) the injury caused internal or external harm to the body which \n\nEwton – H305182 \n \n5 \n \nrequired  medical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported by objective findings establishing an injury; and (4) the injury was caused by a \nspecific incident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, \n2011 Ark. App. 450, 384 S.W. 3d 630. \n A  compensable  injury  does  not  include  an “injury  which  was  inflicted  upon  the \nemployee at a time when employment services were not being performed.”  A.C.A. §11-\n9-102(4)(B)(iii).    An  employee  is  performing  employment  services  when  she  is  doing \nsomething generally required by her employer.  White v. Georgia-Pacific Corporation, 339 \nArk. 474, 6 S.W. 3d 98 (1999).  The same test is used to determine whether an employee \nis performing employment services as is used when determining whether an employee \nwas acting in the course and scope of employment.  Pifer v. Single Source Transportation, \n347 Ark. 851, 69 S.W. 3d 1 (2002).  The test is whether the injury occurred within the time \nand  space  boundaries  of  the  employment  when  the  employee  was  carrying  out  the \nemployer’s purpose or advancing the employer’s interest, either directly or indirectly.  Id.   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to prove by a preponderance of \nthe evidence that she suffered a compensable injury to her left knee and right ankle on \nAugust  15,  2023.    Specifically,  I  find  that  claimant  was  not  performing  employment \nservices at the time of her injury. \n Claimant  testified  at  the  hearing  that  she  was  returning  to  her  car  when  she \nstepped off the curb and twisted her ankle in order to get a set of keys.  Clearly, this would \nconstitute the performance of employment services.  However, I do not find this testimony \nto be credible.   \n\nEwton – H305182 \n \n6 \n \n First, I note that claimant testified at her deposition that when she initially went to \nthe Intermediate Office she received keys to the gym and tech lab from April McGuire, \nthe  school  nurse.    However,  testimony  from  McGuire  and  Mannatt  established  that \nMcGuire does not have any keys to respondent’s buildings other than the keys to her own \noffice.  Even claimant at the time of the hearing had changed her testimony to indicate \nthat she had received the keys from Mannatt. \n Furthermore,  immediately  after  this  accident,  claimant  did  not  give  a  history  of \ngoing to her car to obtain keys to a building, but instead indicated that she was going to \nher car to get her own personal drink.  As previously noted, immediately after this accident \nclaimant  returned  to  the  Intermediate  School office  to  report  the  injury  where  she  was \nseen  by  April  McGuire,  respondent’s  school  nurse.    McGuire  testified  that  claimant \nindicated that she was walking to her car to get a drink. \n  Q Did she tell you what she was doing at the time of \n  the fall? \n \n  A If I remember correctly, she told us that she had been \n  walking out to her car to get a drink and slipped off the curb. \n \n  Q Did she mention anything at all about going to her car \n  to get a set of keys? \n \n  A No, ma’am. \n \n Furthermore,  as  previously  noted,  McGuire  telephoned  Misty  Thompson,  the \nworkers’ compensation claims supervisor, to report the injury.  Thompson also testified \nthat  claimant  indicated  that  she  was  going  to  her  car  to  get  a  drink  and  that  no  other \npurpose was mentioned. \n  Q What did Mrs. Ewton tell you she was doing at the \n\nEwton – H305182 \n \n7 \n \n  time of the fall? \n \n  A She was going back to her vehicle to get a drink. \n \n  Q Did she mention anything else that she would have \n  been doing as far as why she was going back to her car? \n \n  A No.  And can I reference that? \n \n  Q Yes. \n \n  A And I do recall when I went back and looked when this \n  was going into litigation to verify if she was going out there \n  for any other purpose or if that was her sole purpose for  \n  going back out to the vehicle was to get the drink. \n \n  Q You even asked her, “Was there any other purpose for \n  you going back to your car?”  What was her response? \n \n  A Her response was, “No.” \n \n \n Claimant’s statement that she was going to her car to get a drink is further reflected \nin  the recorded statement which was submitted into evidence by the respondent.  That \nstatement contains the following: \n  Q And how were you injured, or what happened? \n \n  A I stepped off a curb and twisted my ankle and fell in \n  the parking lot. \n \n  Q And what were you doing at that time, I mean like \n  taking trash out, going to another building? \n \n  A I was getting ready.  I was going to my car to get \n  something to drink that I had left in there, and when I \n  stepped off of the curb I twisted my ankle and its all \n  swollen. \n \n      *** \n \n  A Yes. \n \n\nEwton – H305182 \n \n8 \n \n  Q And it was to get a drink for yourself? \n \n  A Yes. \n \n  Q Okay.  And that was something you had left in your \n  car? \n \n  A Yes, and I was going back out, I was going to go back \n  in after I got my drink, but then I -  \n \n  Q Okay. \n \n  A - couldn’t make it back in because I fell and messed up \n  my ankle. \n \n  Q Was there any other purpose for you going out there,  \n  other than to get your drink? \n \n  A No, ma’am. \n \n \n Perhaps  the most  damaging evidence with regard  to  claimant’s  credibility  is  her \napplication  for  unemployment  insurance  benefits  on  April  22,  2024.    At  the  hearing \nclaimant testified that she had not worked since the date of the accident on April 15, 2023.  \n  Q Have you been back to work since the date of \n  this incident? \n \n  A No, sir. \n \n \n First, I note that claimant initially filed for unemployment compensation benefits on \nSeptember 12, 2023, and when listing her last employer did not list the respondent but \ninstead listed Northport Health Services of Arkansas with her last date of work as August \n15, 2023.  According to this claim, claimant was working for respondent on August 15, \n2023.   More  importantly,  claimant  refiled  for  unemployment  compensation  benefits  on \nApril 22, 2024.  Despite testifying that she had not worked since August 15, 2023, claimant \n\nEwton – H305182 \n \n9 \n \nlisted her last employer as Dardanelle Nursing & Rehab.  Claimant indicated that she was \nworking fulltime for that employer and that her first day to work for Dardanelle Nursing \nwas October 5, 2023, and her last date of work was February 22, 2024.  Claimant was \nsubsequently  disqualified  for unemployment  compensation  benefits  for  making  false \nstatements or  misrepresenting a material  fact  on  her application.   Documentation  from \nthe Division of Work Force Services submitted on Page 13 of Respondent’s Exhibit #1 \nindicates  that  there  was  some  discrepancy  between  claimant  and  Dardanelle  Nursing \nregarding her employment and her missing work for that employer.  The relevant evidence \nin  this  case  is  that despite  claimant’s  testimony  that  she  did  not  work  after  August  15, \n2023, the claimant did in fact return to work for another employer. \n Based upon the foregoing, I do not find claimant’s testimony that she was going to \nher car to get keys to be credible.  Instead, I find that claimant was returning to her car in \norder to get her own personal drink.  The Commission is bound to examine the activity \nthe  claimant  was  engaged  in  at  the  time of  the  accident  in  determining  whether or  not \nthey were performing employment services.  Texarkana School District v. Conner, 383 \nArk. 372, 284 S.W. 3d 57 (2008); Javan v. Econ. Inn & Suites, 370 Ark. 414, 260 S.W. 3d \n281 (2007).  \n Here,  the  activity claimant  was  engaged  in  at  the  time  of  her  accident  was  not \ngoing to her car to get keys in to a building to clean, but instead was her going to her car \nto get her own personal drink.  While claimant may have been on the clock at the time \nshe was engaging in that activity, claimant was not carrying out the employer’s purpose \nor advancing the employer’s interest either directly or indirectly.  Therefore, she was not \nperforming  employment  services  at  the  time  of  her  accident  and  her  injury  is  not \n\nEwton – H305182 \n \n10 \n \ncompensable under Arkansas workers’ compensation law. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that she suffered \na compensable injury to her left knee and right ankle while employed by respondent on \nAugust 15, 2023.  Claimant was not performing employment services at the time of her \naccident.  Therefore, her claim for compensation benefits is hereby denied and dismissed. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $528.10. \n IT IS SO ORDERED. \n \n     __________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":15503,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305182 ANDREA EWTON, Employee CLAIMANT DARDANELLE PUBLIC SCHOOLS, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WCT, Carrier RESPONDENT OPINION FILED AUGUST 12, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Russellville, Pope ...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["knee","ankle","back"],"fetchedAt":"2026-05-19T22:50:00.595Z"},{"id":"alj-H304477-2024-08-12","awccNumber":"H304477","decisionDate":"2024-08-12","decisionYear":2024,"opinionType":"alj","claimantName":"Christy Mason","employerName":"Mueller Industries, Inc","title":"MASON VS. MUELLER INDUSTRIES, INC. AWCC# H304477 August 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Mason_Christy_H304477_20240812.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Mason_Christy_H304477_20240812.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H304477 \n \nCHRISTY S. MASON, EMPLOYEE CLAIMANT \n \nMUELLER INDUSTRIES, INC., \nEMPLOYER RESPONDENT \n \nSAFETY NATIONAL CASUALTY CORP.,  \nINSURANCE CARRIER                       RESPONDENT \n \nSEDGWICK CLAIMS SVCS., INC.,  \nTPA                       RESPONDENT \n \n \nOPINION FILED AUGUST 12, 2024 \n \nHearing  before  Administrative  Law Judge  Steven  Porch on July 19,  2024, in Forrest  City, \nArkansas. \n \nClaimant was represented by Mr. Mark Peoples, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented by Mr. Michael Ryburn, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing  was  held  on  this  claim  on July  19,  2024.   A  prehearing  telephone \nconference  took  place  on May 15,  2024.  A  prehearing  order  was  entered  on  that  date  and \nsubsequently entered into evidence as Commission Exhibit 1. The parties’ stipulations are set \nforth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. An  employer/employee/carrier relationship  existed among  the  parties on \nMay 31, 2023, when Claimant allegedly sustained a compensable injury to \nher right shoulder. \n \n3. Respondents have controverted this claim in its entirety. \n\nMASON H304477 \n \n2 \n \n \n4. The Claimant’s  average  weekly  wage is  $557  which  entitles  her  to \ntemporary total disability benefits of $372 and permanent partial disability \nbenefits of $279 weekly. \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1. Whether Claimant sustained a compensable right shoulder injury by specific incident.  \n \n2. Whether  Claimant  is  entitled  to  reasonable  and  necessary  medical  treatment and \nrelated expenses, including mileage and out of pocket expenses. \n \n3. Whether Claimant gave proper notice of her injury to Respondent/Employer. \n \n4. Whether Claimant is entitled to temporary total disability benefits. \n \n5.   Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nA. Claimant Contentions. \n \nClaimant contends that she  sustained  a  compensable  injury  to  her right shoulder  on  or \nabout May 31, 2023; entitled to temporary total disability benefits from June 26, 2023, through \nJanuary  28,  2024;  entitled  to  medical  treatment  relative  to  her  work  injury;  and  a maximum \ncontroverted attorney’s fee.  \nB. Respondent Contentions. \nThe Claimant allegedly injured her right shoulder at work on May 31, 2023. X-rays and \nan  MRI  show  only  pre-existing  arthritis.  There  is  no  acute  process  and  no  objective  medical \nfindings. The Claimant did not sustain a compensable injury. \n \n   \n\nMASON H304477 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including medical   reports,   non-medical \ndocuments,  and  other  matters  properly  before  the  Commission, I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704  (Repl. \n2012): \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The Claimant has not proven by the preponderance of the evidence that she sustained \na compensable right shoulder injury by specific incident. \n  \n4.  Based  on  my  previous  finding,  the  remaining  issues  of  reasonable  and  necessary \nmedical   treatment, notice   of   injury, temporary   total   disability   benefits,   and   a \ncontroverted attorney’s fee are all moot and will not be addressed in this opinion. \n \nCASE IN CHIEF \nSummary of Evidence \n The record consisted of Claimant’s Exhibit 1, Medical Records, that consists of 15 pages, \nRespondent Exhibit 1, medical records, accident, and sickness records, consisting of 9 pages, and \nCommission  Exhibit  1,  Pre-Hearing  Order, that  consists  of  5  pages.  I  have  also  blue-backed \nClaimant’s and Respondents’ post-hearing briefs. I also had the opportunity to hear the testimony \nand  observe  the  demeanor  of  the  Claimant, Christy  Mason, and  Joe  Huggins,  former  lead  man \nfor Respondent/Employer, who were the only two witnesses in the full hearing.  \nThe Claimant   worked   as   a machine   operator   for Respondent/Employer. Claimant \nsuffered an alleged injury to her right shoulder while changing out the rollers on her machine on \nMay  31,  2023. When changing  the  rollers on  her  machine Claimant  heard  a  pop  in  her  right \nshoulder. Joe  Huggins, a former  lead  man  for  Respondent/Employer, was  near  the  Claimant, \nwith his back facing her, when he heard a pop. Mr. Huggins turned around and asked Claimant if \n\nMASON H304477 \n \n4 \n \nshe  was  alright.  The  Claimant  responded  that  it  was  her  shoulder  and  that  she  was  fine.  Mr. \nHuggins  did  observe  Claimant  rubbing  her  right  shoulder immediately after  the  pop  sound. \nNevertheless,  the  Claimant  continued  working  for  Respondent/Employer  until  June  26,  2023, \nwhen  she  woke  up  and  her  shoulder  was  stiff.  She  complained  about  her  shoulder  pain  to  Jim \nHaynes, her line supervisor, on June 27, 2023.  \nClaimant received an MRI at the Cross Ridge Community Hospital on July 3, 2023. The \nreport found no rotator cuff tear. See Claimant’s Exhibit 1, pages 2-3. Claimant also testified that \nshe    reported    her    alleged    injury    to    Brenda    Kelly,    Human    Resource    Manager    for \nRespondent/Employer, on July 10, 2023.  A form AR-2 was filed on July 17, 2023, denying the \nclaim. The Claimant argues, during the full hearing, that she has objective findings of an injury \nin  the  form  of  adhesive  capsulitis. To substantiate  this  finding,  the  Claimant  points  to  a \nNovember 3, 2023, medical note from the Delta Orthopaedics and Sports Medicine Clinic. This \nnote was created by Dr. Michael Hood. See Claimant’s Exhibit 1, pages 8-14. Respondents argue \nthat adhesive capsulitis is not a compensable injury.  \nClaimant  submitted  a  post-hearing  brief on  July  29,  2024, alleging  that  the  objective \nfindings were now a mild supraspinatus and infraspinatus tendinopathy as well as mild right AC \njoint  osteoarthritis.  Claimant  further  argues  that  these  findings  coupled  with  her  testimony \nregarding  her  pain,  discomfort,  and  loss  of  use  of  her  shoulder  carry  the  burden  of  proof. \nRespondents also submitted  a post-hearing brief  arguing  that  tendonitis  and  osteoarthritis are \nboth inconsistent with being caused by a specific injury and would not produce the “pop” that \nClaimant alleges occurred on May 31, 2023.   \n \n \n\nMASON H304477 \n \n5 \n \nAdjudication \nA. Whether Claimant sustained a compensable injury to her right shoulder by \nspecific incident. \n \n Arkansas  Code  Annotated  § 11-9-102(4)(A)(i)  (Repl.  2012),  which  I  find  applies  to  the \nanalysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the body . . . \narising  out  of  and  in  the  course  of  employment  and  which  requires  medical \nservices or results in disability or death.  An injury is “accidental” only if it is \ncaused by a specific incident and is identifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective findings.  \nArk.  Code  Ann.  §  11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings that \ncannot  come  under  the  voluntary  control  of  the  patient.   Id.  §  11-9-102(16).    The  element \n“arising out of . . . [the] employment” relates to the causal connection between the claimant’s \ninjury and his or her employment.  City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d \n430  (1987).    An  injury  arises  out  of  a  claimant’s  employment  “when  a  causal  connection \nbetween work conditions and the injury is apparent to the rational mind.”  Id. \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements   for   establishing   compensability,   compensation   must   be   denied.    Mikel   v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard means \nthe evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, \n46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how \nmuch weight to accord to that person’s testimony are solely up to the Commission.  White  v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort \n\nMASON H304477 \n \n6 \n \nthrough  conflicting  evidence  and  determine  the  true  facts.   Id.    In  so  doing,  the  Commission  is \nnot  required  to  believe  the  testimony  of  the  claimant  or  any  other  witness  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of belief.  \nId. \nI  find  by  the  preponderance  of  the  evidence  that  Claimant  has  not  proven  she  has \nsustained a compensable right shoulder injury with objective findings. The Claimant received an \nMRI on July 3, 2023. Claimant’s Exhibit 1, pages 2-3.  The  MRI  report  reveals  degenerative \nfindings  only.  More  specifically,  the  report  reveals  no  rotator  cuff  tear,  the  subscapularis  and \nteres minor tendons are intact, no rotator cuff muscle bulk edema or fatty atrophy, no significant \nglenohumeral  joint  effusion,  and  no  paralabral  cysts. Claimant’s Exhibit 1, pages 2-3. In  other \nwords, the report shows no swelling or anything else that can be labeled as an objective finding \nfor  a  specific  incident. I  credit  this  report  created  at  the  Cross  Ridge  Community  Hospital  and \nsigned by Dr. Dana J. Coker.  \nNevertheless,  the Claimant initially points  to “adhesive  capsulitis” in  a  medical  record \nfrom  Delta  Orthopaedics  and  Sports  Medicine,  prepared  by  Dr.  Michael Hood, as  the  objective \nfinding for her right shoulder injury. Claimant’s Exhibit 1, pages 8-14. This record was created \nNovember  3,  2023,  more  than  five  months  after  the  injury  date.  This  report  runs  counter  to  the \nJuly  3,  2023,  MRI  report.  Where  the  MRI  shows  degenerative  issues, Dr.  Hood’s  report  shows \nadhesive  capsulitis  or  frozen  shoulder. I  do  not  credit  Dr.  Hood’s  report. The nature and \nremoteness of the diagnosis of adhesive capsulitis from the actual May 31, 2023, date of injury, \ndoes  not  lend  itself to  a  work-related  incident  by  specific  incident.  And I  find  that  it  is  not.  I \nfurther find that the most accurate and telling record of Claimant’s alleged injury is the July 3, \n\nMASON H304477 \n \n7 \n \n2023, MRI report. This report is closer in time and gives a more accurate depiction of Claimant’s \ncondition.  \nIn this respect, the Claimant now turns her attention to the July 3\nrd\n MRI report and argues \nthrough  her  post-hearing  brief  that the  objective  findings  were  a mild  supraspinatus  and \ninfraspinatus  tendinopathy  as  well  as  mild  right  AC  joint  osteoarthritis. See also Claimant’s \nExhibit  1,  pages  2-3.  Claimant  further  argues  that  these  findings  coupled  with  her  testimony \nregarding  her  pain,  discomfort,  and  loss  of  use  of  her  shoulder  carry  the  burden  of  proof.  \nRespondents  counter  these  claims  in  their  post-hearing  brief by arguing that  tendonitis  and \nosteoarthritis are both inconsistent with being caused by a specific injury and would not produce \nthe  “pop”  that  Claimant  alleges  occurred  on  May  31,  2023. I  agree  with  the  Respondents’ \nargument.  \nTendonitis   and   osteoarthritis   are   degenerative   conditions   but   could   be   caused   by \nrepetitive movements, not by a single specific incident as alleged here. Moreover, nothing in the \nrecord including Claimant’s  own  testimony,  demonstrated  that  her  job  involved  any  rapid \nrepetitive  motion  that  would  create  the  alleged  shoulder  injury. Thus,  I  would,  given  all  the \nfactors including Claimant’s job functions, be  hard-pressed to find that Claimant’s injury was \ndue  to  repetitive work-related actions. For  this  reason, I  believe  the Claimant  has decided  to \nargued vigorously that  her  injury was  the  result  of  a  specific  incident; and  that is  the official \nissue for this claim.\n1\n And as previously stated, the alleged right shoulder injury had no objective \nfindings per the July 3\nrd\n MRI report. The report revealed degenerative conditions that I find are \nnot work-related. It is the Claimant’s burden to prove she had “objective findings” of  an injury \n \n1\n Rapid repetitive motion was never made an issue in this claim. Thus, it will not be \naddressed beyond this point. \n\nMASON H304477 \n \n8 \n \ndue  to  a  specific  work-related  incident and  she  has  not met  that  burden. Thus,  her  claim  must \nfail.  \nMiscellaneous Issues. \n Based  on  my previous  finding that Claimant’s right shoulder injury is  not  compensable, \nthe  issues  regarding  reasonable  and  necessary  medical  treatment, notice  of  injury, temporary \ntotal disability benefits, and a controverted attorney’s fee are moot and will not be addressed in \nthis opinion. \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above,  the \nparties shall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":14146,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H304477 CHRISTY S. MASON, EMPLOYEE CLAIMANT MUELLER INDUSTRIES, INC., EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY CORP., INSURANCE CARRIER RESPONDENT SEDGWICK CLAIMS SVCS., INC., TPA RESPONDENT OPINION FILED AUGUST 12, 2024 Hearing before Administrative Law ...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","back","rotator cuff","repetitive"],"fetchedAt":"2026-05-19T22:50:02.666Z"},{"id":"full_commission-H300170-2024-08-07","awccNumber":"H300170","decisionDate":"2024-08-07","decisionYear":2024,"opinionType":"full_commission","claimantName":"Teresa Kimes","employerName":"Independence At Home","title":"KIMES VS. INDEPENDENCE AT HOME AWCC# H300170 AUGUST 7, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Kimes_Teresa_H300170_20240807.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Kimes_Teresa_H300170_20240807.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H300170 \n \nTERESA KIMES, \nEMPLOYEE \n \nCLAIMANT \nINDEPENDENCE AT HOME,  \nEMPLOYER \n \nRESPONDENT \nGUARD INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED AUGUST 7, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant is Pro Se. \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJanuary 3, 2024.  The administrative law judge found that the claimant \nfailed to prove she sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission affirms the administrative law \njudge’s opinion.     \nI.  HISTORY \n The record indicates that Teresa Lynn Kimes, now age 62, treated at \nSparks Regional in June 2012:  “The patient is a 50 years old female who \npresents with lumbar pain.  The onset was abrupt.”  The diagnosis was \n\nKIMES - H300170  2\n  \n \n \n“Back strain.”  A physician noted in May 2015, “Patient has been having a \nlot more back pain.  Has history of degenerative disc....Will refer to pain \nmanagement.”  An MRI of the claimant’s lumbar spine was taken on June \n12, 2015 with the following impression: \n1.  At L3-4, there is a posterior disc herniation with spinal and \nbilateral foraminal stenosis, worse on the left than the right. \n2.  At L4-5, there is a disc bulge and degenerative facet \nchange with spinal and bilateral foraminal stenosis. \n3.  At L5-S1, there is degenerative facet change with bilateral \nforaminal stenosis. \n4.  At L1-2, there is a slight disc bulge without spinal stenosis. \n5.  Degenerative facet change at all levels.   \n \n Dr. Brian Goodman provided a Pain Clinic Consultation in July 2015:  \n“Ms. Kimes is a 53 y.o. female who presents to pain clinic with back pain \nwhich has been gradually worsening over time.  She thinks the likely cause \nof this pain is degeneration.  The pain is described as constant aching.”  Dr. \nGoodman assessed “1.  Moderate spinal stenosis.  2.  Lumbar spondylosis.  \n3.  Mechanical back pain.”  Dr. Goodman scheduled a diagnostic medial \nbranch block, which was performed in September 2015.  It was reported at \nSparks Regional in March 2016 that the claimant had been suffering from \nback pain for three years.   \n Dr. Donald Paul Samms noted on October 1, 2020, “Patient was \ngetting down out of her son-in-law’s jacked up pickup truck when she \nstepped wrong and had back pain and pain going down her left leg all the \nway to the foot.  She does have history of a bad back.”  An x-ray of the \n\nKIMES - H300170  3\n  \n \n \nclaimant’s lumbar spine was taken on October 1, 2020 with the impression, \n“Degenerative disc disease and minimal spondylolisthesis.”  Dr. Sams \nassessed “1.  Left sided sciatica (Primary).”  An x-ray of the claimant’s \nlumbar spine was taken in April 2022 with the impression, “Advanced \ndegenerative changes.  Grade 1 anterolisthesis of L4 on S1.”       \nThe parties stipulated that the employee-employer-carrier \nrelationship existed on December 4, 2022.  The claimant testified on direct \nexamination: \n Q.  What were you doing on December 4\nth\n? \nA.  I was working at Frances’s place as a home health \nprovider.   \n Q.  And what does that involve? \nA.  It involves cleaning, doing light housekeeping, and helping \nthem with their personal care and cooking a meal.   \nQ.  What all is involved in this personal care? \nA.  Okay.  She was bed – she could not walk or nothing, so I \nhad to change her diaper, her bedding.  Give her a sponge \nbath, dress her.  I put lotion on her.  Comb her hair.... \nQ.  Now, explain to the judge what happened on December \n4\nth\n of 2022.   \nA.  Okay.  It was a Sunday and I had got permission prior \nbefore from my work and I was going to go to communion at \nchurch and I had to leave at 10 o’clock to be there by \n10:30....While [Frances] was eating I got the linens, they are \ncalled Tucks, and her sheets, her diapers, her pads and laid \nthem all out....I took the blankets off her bed.  She lowered \nher bed....She grabs ahold of the rail and I was trying to start \nthe roll I call it and all her stuff that needs to go under her and \nshe lets go of the rail and she says, “I can’t do this.  It hurts.”  I \nsaid, “Okay, Frances.”  I said, “Frances, you are going to have \nto help me.”  So she done it again, so I put my arm up to hold \nher where she cannot roll back over and I can proceed to roll \nher diaper and all the items that she needed under her bed, \nher linens, and she kept hollering, “I can’t do it.  It hurts.  It \n\nKIMES - H300170  4\n  \n \n \nhurts.”  So that did take some time....So when I was bent over \nand I was rolling up the unsanitary linens and trying to roll out \nthe other one and I was tugging on it and she lets go and just \nsays she can’t do it no more.  When I leaned over, I had a \npain in my back.  I stopped right then....Eventually I did get it \ndone, but I did not do everything like it should have been....I \nsat down for a minute.  So I left there at 10:15.  When I got in \nthe car, I called Independence and I called Samantha to tell \nher that I hurt my back.  I did not get nobody on the \nphone....Coming back from church, I called Independence \nand I got Tiffany.  She told me that she will tell the girls, which \nthe girls was Christy and Carolyn.... \nQ.  During this period of time, did you contact the personnel at \nIndependence and tell them your back was bothering you? \nA.  Yes, sir.   \nQ.  Did you tell them it was bothering you because of this \naccident on the 4\nth\n? \nA.  Yes, sir.... \n \n Carolyn Langley testified that she was the respondent-employer’s \nscheduling supervisor.  The respondents’ attorney examined Carolyn \nLangley: \n  Q.  Tell us about Ms. Frances. \nA.  She is one of our bedridden clients.  She has a hospital \nbed that is in her living room.  She has a trapeze and also the \ntwo bedrails.... \nQ.  Now, we are here because Ms. Kimes is claiming that she \ninjured her back on December the 4\nth\n, 2022, while working for \nMs. Frances.  Are you aware that is her allegation? \nA.  I’m aware that that is the allegation.   \nQ.  Okay.  What do you know, if anything, about what Ms. \nKimes claims about what happened on December 4\nth\n?  Did \nshe tell you anything? \nA.  No, ma’am.   \nQ.  What do you know? \nA.  Nothing other than just the call-ins for needing to go to the \ndoctor for her back hurting and us requesting a doctor’s \nrelease to come back to work, as we would with any \ncaregiver.   \n\nKIMES - H300170  5\n  \n \n \nQ.  So you are aware that she reported she needed to go to \nthe doctor for back pain? \nA.  Yes. \nQ.  Was there any discussion about why she had back pain or \nhow it occurred? \nA.  No, ma’am. \nQ.  Did she ever volunteer to you that she got hurt at work? \nA.  No.... \nQ.  Are you aware of any complaints of anything occurring \nwith Ms. Kimes working on December the 4\nth\n? \nA.  The only one that I am aware of is when I received a \nphone call on the 5\nth\n from the client herself asking us to \nremove Teresa and never send her back due to a \ntemperamental situation.... \nQ.  So she was blocked from treating Frances after December \nthe 4\nth\n.  Is that correct? \nA.  Correct.... \nQ.  Did she at any time report to you that she hurt her back \ntaking care of Ms. Frances on December 4\nth\n? \nA.  No.   \n \n The claimant testified on direct examination: \nQ.  Now, what happened on December 15\nth\n? \nA.  That morning when I got up I had problems walking, so I \nwent to the walk-in clinic.  I called in that morning to tell them, \n“I cannot do nothing else no more.  I am going to the doctor,” \nand I went to the walk-in clinic.   \n \n According to the record, the claimant treated at Baptist Health Urgent \nCare on December 15, 2022:  “Patient comes in today for a back pain....PT \nIS HOME HEALTH NURSE HAS HURT BACK WORKING WITH \nPATIENTS.  WORSENING BACK PAIN FOR A WEEK.”  Physical \nexamination showed, among other things, “Bilateral muscle spasm.”   \nThe assessment on December 15, 2022 was “Dorsalgia, unspecified \n– High risk of morbidity without treatment - Poorly controlled – Worsening.”  \n\nKIMES - H300170  6\n  \n \n \nAn x-ray of the claimant’s lumbar spine was taken on December 15, 2022 \nwith the following impression: \n1.  There is loss of the normal lumbar spine lordosis which \nwould be concerning for muscle spasm. \n2.  Severe multi-level degenerative change of the spine. \n3.  Grade I anterolisthesis of L5 on S1.   \n \n The claimant agreed on cross-examination that she did not work for \nthe respondents after December 15, 2022.  An APRN saw the claimant on \nDecember 20, 2022:  “Complains of lower back pain.  She went to urgent \ncare not long ago and was told she had spinal enthesopathy and needed to \nsee a neurosurgeon.  She would like a referral.  She states this [has] been \ngoing on for years.  She has recently been on a Medrol Dosepak and \ncyclobenzaprine.  She states she has tried injections and physical therapy.  \nShe does see an orthopedic doctor about this but states none of it is \nhelping.  She declines chiropractor referral.”  The assessment on December \n20, 2022 included “Spinal enthesopathy of lumbar region (HCC).\"   \nDr. Robert Cline Lane reported on December 21, 2022: \nTeresa L. Kimes is a 60 y.o female to the emergency \ndepartment with complaints of increasing lower back pain.  \nShe states that she has been having gradual increase in pain \nover the past 7 months or so however the past week she has \nhad much more trouble with it.  She is she does (sic) heavy \nlifting at work as she works in home health and was seen last \nweek at urgent care and had imaging done and is \nsubsequently seen (sic) her PCP who has sent a referral for \nneurosurgery evaluation.  She has been on a Medrol Dosepak \nalong with Flexeril however this does not seem to be helping \n\nKIMES - H300170  7\n  \n \n \nher pain.  The pain goes mostly into her right hip and leg but \nsometimes on the left side as well.... \n \n Dr. Lane diagnosed “Chronic right-sided back pain with right-sided \nsciatica (primary).” \n An MRI of the claimant’s lumbar spine was taken on January 6, 2023 \nwith the impression, “Degenerative changes of the lumbar spine which are \ndescribed in detail by level above.”   \n The claimant began pain management treatment with David Holt, \nPA-C on January 18, 2023:  “Teresa is a 60 year old female who presents \nto the clinic with complaint of pain in low back, bilateral legs, bilateral knees.  \nHas known severe lumbar foraminal stenosis.”  David Holt assessed \n“Lumbar degenerative disc disease.”  Dr. Holt noted on February 15, 2023 \nthat the claimant “fell in the rain.”   \n Dr. Gautam Kanu Gandhi noted on February 21, 2023, “This is a \nchronic problem.  The current episode started more than 1 year ago (>10 \nyears)....The pain is present in the lumbar spine.”  Dr. Gandhi discussed \nconservative treatment and surgery, and he advised the claimant to return \nto the clinic in six months.       \n Dr. Michael S. Wolfe assessed the following on May 4, 2023:  \n“Radiographs show degenerative changes at L3-4 L4-5 and L5-S1 with \ngrade 1 spondylolisthesis at L5-S1 findings are somewhat similar to what \nwas noted 3 years ago but she definitely has progressive disc deterioration \n\nKIMES - H300170  8\n  \n \n \nand joint space narrowing she is having mechanical pain related to her disc \nchanges and I do think that surgical intervention could be of help to her \nbecause she is having such severe problems she is to follow-up with the \nphysician in Conway she will continue on Mobic at present I will see her \nback in clinic on [an] as needed basis.”   \nA pre-hearing order was filed on August 8, 2023.  According to the \ntext of the pre-hearing order, the claimant contended, “The claimant \ncontends that she sustained compensable injury to her lower back while \nattempting to move a patient on December 3 [sic], 2022.  She contends that \nher injury has required reasonably necessary medical services and has \nrendered her temporarily totally disabled from December 5, 2022, until a \ndate yet to be determined.  She seeks the statutory attorney’s fee for her \nattorney on all appropriate benefits that might be subsequently awarded.”   \n The parties stipulated that the respondents “have controverted the \nclaim in its entirety.”  The respondents contended, “Respondents contend \nthat the claimant cannot prove by a preponderance of the evidence that she \nsustained a compensable injury for which she is entitled to medical and \nindemnity benefits.  Specifically, Respondents contend that the claimant \nsuffers from pre-existing degenerative disc disease for which she has \nreceived treatment as far back as 2010 and that the claimant did not report \n\nKIMES - H300170  9\n  \n \n \na work related injury occurring on December 3 [sic], 2022, or at any time \nduring her employment.”   \n The parties agreed to litigate the following issues:   \n1.  Whether Claimant sustained a compensable injury to her \nlow back on or about December 4, 2022.   \n2.  Whether Claimant is entitled to medical treatment for her \ncompensable low back injury. \n3.  Whether Claimant is entitled to temporary total disability \nbenefits from December 5, 2022, to a date yet to be \ndetermined. \n4.  Whether Claimant’s attorney is entitled to an attorney fee.   \n \n A hearing was held on October 5, 2023.  The claimant testified that \nDr. Gandhi had scheduled surgery for October 30, 2023.  An administrative \nlaw judge filed an opinion on January 3, 2024 and found that the claimant \nfailed to prove she sustained a compensable injury.  The administrative law \njudge therefore denied the claim.  The claimant appeals to the Full \nCommission.     \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... \narising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n\nKIMES - H300170  10\n  \n \n \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).  \n An administrative law judge found in the present matter, “2.  The \nclaimant has failed to prove by a preponderance of the evidence that she \nsustained a compensable injury to her low back on or about December 4, \n2022.”  The Full Commission affirms this finding.  The record indicates that \nthe claimant has suffered from chronic low back pain since at least 2012.  \nAn MRI in 2015 showed herniation and bulging in the claimant’s lumbar \nspine.  The claimant thereafter underwent pain management, and x-rays in \nApril 2022 showed “Advanced degenerative changes.”   \n The parties stipulated that the employment relationship existed on \nDecember 4, 2022.  The claimant testified that she was employed with the \nrespondents as a Home Health Provider, and that she was working in the \nhome of a client named Frances.  The claimant testified that she felt a pain \nin her back while leaning over Frances’ bed to change linens.  The claimant \n\nKIMES - H300170  11\n  \n \n \ntestified that she informed personnel with the respondent-employer that she \nhad injured her back.     \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).   \n The Full Commission finds in the present matter that the claimant \nwas not a credible witness.  We find credible the testimony of Carolyn \nLangley, the respondents’ scheduling supervisor.  Carolyn Langley testified \nthat the claimant never reported an alleged injury to her.  Ms. Langley \nspecifically testified that she claimant did not report she injured her back at \nwork on December 4, 2022.  Carolyn Langley testified that Frances \nrequested that the claimant not be allowed to return to her home:  “The \nallegations were that she was cussing and screaming at the client and \nthrew the client’s phone.”   \n Nor did the medical evidence corroborate the claimant’s contention \nthat she sustained an accidental injury on December 4, 2022.  The claimant \ndid not seek medical treatment of record until December 15, 2022.  It was \nnoted that the claimant “HURT BACK WORKING WITH PATIENTS. \n\nKIMES - H300170  12\n  \n \n \nWORSENING BACK PAIN FOR A WEEK.”  However, there was not a \nspecific incident identified.  An APRN’s assessment on December 20, 2022 \nwas “Spinal enthesopathy of the lumbar region (HCC).”  The evidence does \nnot demonstrate that this condition was causally related to an alleged \naccidental injury on December 4, 2022.  Nor does the evidence \ndemonstrate that the subsequent reports of “right-sided sciatica” or lumbar \ndegenerative changes were causally related to an alleged accidental injury.     \n The Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that she sustained a compensable injury in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012).  The \nclaimant did not prove that she sustained an accidental injury causing \nphysical harm to the body.  The claimant did not prove that she sustained \nan injury which arose out of and in the course of employment, required \nmedical services, or resulted in disability.  The claimant did not prove that \nshe sustained an injury which was caused by a specific incident or was \nidentifiable by time and place of occurrence on or about December 4, 2022.  \nNor did the claimant prove that she sustained a compensable aggravation \nof a pre-existing condition.  See Farmland Ins. Co. v. Dubois, 54 Ark. App. \n141, 923 S.W.2d 883 (1996); Ford v. Chemipulp Process, Inc., 63 Ark. App. \n260, 977 S.W.5 (1998). \n\nKIMES - H300170  13\n  \n \n \n After reviewing the entire record de novo, the Full Commission \naffirms the administrative law judge’s opinion that the claimant did not prove \nshe sustained a compensable injury on or about December 4, 2022.  This \nclaim is respectfully denied and dismissed. \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \n \nCommissioner Wilhite dissents. \nDISSENTING OPINION \n  The Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant failed to prove by a preponderance of the evidence that \nshe sustained a compensable injury to her low back on or about December \n4, 2022, that she was entitled to medical treatment for such injury and that \nshe is entitled to temporary total disability benefits from December 15, \n2022, to a date yet to be determined.  After conducting a thorough review of \nthe record, I concur in part and dissent in part.  I would rule in favor of the \nClaimant for her compensable injury to her low back which she sustained \n\nKIMES - H300170  14\n  \n \n \non or about December 4, 2022 and is entitled to medical treatment for her \ncompensable injury.  \n1. The Claimant sustained a compensable injury to her low back on or \nabout December 4, 2022 and is entitled to medical treatment for that \ninjury.  \nTo establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence.  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002) \nThe employer takes the employee as he finds him.  Conway \nConvalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. \nApp. 1979).  A pre-existing disease or infirmity does not disqualify a claim if \nthe employment aggravated, accelerated, or combined with the disease or \ninfirmity to produce the disability for which compensation is sought.  See, \n\nKIMES - H300170  15\n  \n \n \nNashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 \n(1990); Conway Convalescent Center v. Murphree, 266 Ark. 985, 585 \nS.W.2d 462 (Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. \nApp. 30, 917 S.W.2d 550 (1996).  An increase in symptoms of a pre-\nexisting degenerative condition is sufficient to establish a compensable \ninjury.  Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d \n449 (2004). \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. § 11-9-508(a).  \nReasonable and necessary medical services may include those necessary \nto accurately diagnose the nature and extent of the compensable injury; to \nreduce or alleviate symptoms resulting from the compensable injury; or to \nmaintain the level of healing achieved; or to prevent further deterioration of \nthe damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).  \nOn December 4, 2022, Claimant was working for Respondent as a \nhome healthcare worker.  Claimant testified that the Respondent’s patient \nrequired an undergarment changing.  During this, the patient was \nuncooperative, and Claimant had to roll the individual over when she felt \npain in her back.  On December 15, 2022, an X-Ray was obtained of \n\nKIMES - H300170  16\n  \n \n \nClaimant’s L-Spine which showed a loss of normal lumbar spine lordosis \nwhich would be concerning for muscle spasm, severe multi-level \ndegenerative changes, and grade I anterolisthesis of the L5 on S1 level of \nthe spine.  Claimant reported to the ER on December 21, 2022, for \nworsening pain in her back where she was diagnosed with chronic right-\nsided low back pain with right-sided sciatica.  Claimant underwent an MRI \non February 21, 2023, which showed a worsening condition of \nmultisegmented lumbar spondylosis with significant spondylosis worse at \nthe L3-4 level with collapse of the interspace, and severe central canal \nstenosis at the L3-4 and L4-5 levels compared to an MRI performed in May \n2018 as read by Dr. Gautam Kanu Gandhi.  Dr. Gandhi found that \nClaimant’s condition was worse than her comparable MRI performed in May \nof 2018.  Dr. Gandhi recommended Claimant for surgical intervention of an \nL3-5 posterior fixation with L3 laminectomy.  \nTherefore, I would find that the Claimant suffered a compensable \nlower back injury and is entitled to medical treatment of such injury in the \nperformance of Dr. Gandhi’s recommended surgery.  \n2. The Claimant is not entitled to temporary total disability benefits from \nDecember 15, 2022 to a date yet to be determined. \nTemporary total disability benefits are appropriate where the \nemployee remains in the healing period and is totally incapacitated from \n\nKIMES - H300170  17\n  \n \n \nearning wages.  Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981).  While the Claimant is clearly still in her healing period \nas she is still treating for her compensable injury, I cannot say she is totally \nincapacitated from earning wages.  Claimant has not been restricted from \nworking by her authorized physician or another medical provider.  \nTherefore, I would find that the Claimant is not entitled to temporary \ntotal disability benefits from December 15, 2022 to a date yet to be \ndetermined.  \nFor the reasons stated above, I respectfully dissent. \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":24928,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H300170 TERESA KIMES, EMPLOYEE CLAIMANT INDEPENDENCE AT HOME, EMPLOYER RESPONDENT GUARD INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 7, 2024","outcome":"granted","outcomeKeywords":["granted:3","denied:2"],"injuryKeywords":["lumbar","back","strain","hip"],"fetchedAt":"2026-05-19T22:29:45.111Z"},{"id":"full_commission-H004773-2024-08-07","awccNumber":"H004773","decisionDate":"2024-08-07","decisionYear":2024,"opinionType":"full_commission","claimantName":"Donald Hodge","employerName":"Dept. Of Human Services","title":"HODGE VS. DEPT. OF HUMAN SERVICES AWCC# H004773 AUGUST 7, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Hodge_Donald_H004773_20240807.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Hodge_Donald_H004773_20240807.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO. H004773 \n \nDONALD P. HODGE, \nEMPLOYEE \n \nCLAIMANT \nDEPT. OF HUMAN SERVICES,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER \nRESPONDENT \n  \n      \nOPINION FILED AUGUST 7, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed in part, reversed in part. \n \n \n OPINION AND ORDER \nThe Claimant appeals an administrative law judge’s opinion filed \nMarch 19, 2024. The administrative law judge found that the Claimant failed \nto prove by a preponderance of the evidence that he is entitled to wage-loss \ndisability benefits as a result of his compensable injuries incurred on June \n15, 2020. After reviewing the entire record de novo, the Full Commission \nfinds that Claimant is entitled to 20% wage-loss disability benefits as a \nresult of his compensable injuries incurred on June 15, 2020.   \nI. HISTORY \n The testimony of Donald Hodge, now age 64, indicated that \n\nHODGE – H004773  2\n  \n \n \nhe became employed with the Respondents, Department of Human \nServices, in November 2012. Mr. Hodge testified that he had been \nemployed as a training and project manager for the Respondents. The \nparties stipulated that the employee-employer relationship existed on June \n15, 2020. The Claimant testified on direct examination:  \nQ. And on the date of your injury, June 15\nth\n of 2020, were you \nworking in the office that day?  \nA. Yes, sir. I had come to the office, and was told to come \nback and stay at the office, because of the blueprints.  \nQ. I understand and, of course, we stipulated to your injuries, \nbut just give us a brief description of what happened? How did \nyou – how did your accident – how did you have an accident \nthat caused yourself to be hurt?  \nA. Well, I was coming in to review a specific – a hundred-units \nnew facility that was being built in Little Rock, and the \nblueprints had been shipped to me. A full set of blueprints for \na hundred-unit is quite heavy, and it was shipped in a \ncardboard container, and I wasn’t going to carry it to office. I \nhad to carry it to another place to stretch it out. I had to have a \nbig table, you know, and the cubicles didn’t have enough \nroom or table width to pull out a full set of plans. So I went and \ngot a cart with wheels on it and I was going to put them on the \ncart and roll it down to the conference room, where I could pull \nthem out and go over them, and when I picked the – I pulled \nthe cart in and when I picked the blueprints up to move them, \nthe bottom of the box was open and I didn’t realize that. The \nblueprints slid out of the bottom of the box and hit me on my \nleft foot. When it did, you know, the pain, it knocked me off my \nfeet and I grabbed the cart. Well, it was on wheels and as a \nresult, I slid across from my cubicle across the corridor and hit \na little two-foot file cabinet and flipped over it and hit another \n\nHODGE – H004773  3\n  \n \n \nfile cabinet. \n \nThe parties stipulated that the Claimant sustained compensable \ninjuries to his “back, neck, right foot, right arm/right shoulder and right hip,” \non June 15, 2020. On June 15, 2020,  according to the record, Claimant \nreported to the Baptist Health emergency department where he underwent \na multitude of x-rays and was diagnosed with a contusion of right foot, \narthralgia of hip, and acute shoulder pain.  \nThe Claimant’s testimony indicated that he underwent surgery by Dr. \nKirk Reynolds on December 28, 2020 for his compensable right shoulder \ninjury. The Claimant testified on direct examination:  \nQ. And to what extent or help us understand what symptoms \nor problems that you began to experience as far as your neck \nwas concerned, after the work-related accident?  \nA. I had a spot about as big as a silver dollar between my \nneck and shoulder that always burned and had sharp pain in \nit.  \nQ. And was that in between – which shoulder area were you –  \n A. This was on the left neck and shoulder area.  \n Q. And you did, ultimately, it looks like, have an MRI   \n       recommended by Dr. Reynolds at one point for your neck?  \n A. Yes, sir.   \n \nAccording to the record, an MRI of the Claimant’s C-Spine was \ntaken on January 22, 2021:  \nFINDINGS: There are no signal abnormalities within the cervical \nspinal cord. No thecal sac mass. The cervical vertebrae are in \nanatomic alignment. No vertebral body or disc edema. The \n\nHODGE – H004773  4\n  \n \n \nprevertebral space is unremarkable. The spinous processes and \ninterspinous ligaments are normal. The following findings are present \nat each level:  \nC2-C3: Small focal central disc protrusion. No spinal \ncanal or neural foraminal stenosis.  \nC3-C4: Minimal uncovertebral spurring. No spinal canal \nor neural foraminal stenosis.  \nC4-C5: A small focal central disc protrusion. No spinal \ncanal or neural foraminal stenosis.  \nC5-C6: A small posterior disc bulge. Small bilateral \nparasagittal disc protrusions. No spinal canal stenosis. \nNo right neural foraminal stenosis. Mild left neural \nforaminal stenosis.  \nC6-C7: A small broad-based posterior disc bulge. \nSmall to medium size asymmetric left parasagittal disc \nprotrusion. No spinal canal stenosis. No right neural \nforaminal stenosis. Mild left neural foraminal stenosis.  \nC7-T1: Unremarkable.  \nIMPRESSION:  \n1. Normal MRI of the cervical spinal cord and canal.  \n2. No significant cervical spinal canal or neural \nforaminal stenosis.  \n \nThe record indicates that Dr. Kirk Reynolds evaluated the Claimant’s \nMRI on January 25, 2021, who then referred Claimant to Trent Tappan PA-\nC for evaluation. Dr. Reynolds states that he did not “see anything that \nindicates surgical intervention based upon [his] review of the MRI.” On \nFebruary 8, 2021, Claimant’s c-spine was evaluated by Trent Tappan PA-C \nwho stated “I think he may be symptomatic from this foraminal stenosis, but \nit is really difficult to know if that C6-7 or C7-T1 because [he] cannot see the \nimages together to count the level. We are going to hold off on treatment for \n\nHODGE – H004773  5\n  \n \n \nthis anyway.” Trent Tappan PA-C states that Claimant may be seen for his \nback as needed and does not recommend further treatment for Claimant’s \nc-spine. The Claimant’s testimony indicated that he underwent some \nphysical therapy for his cervical spine after this visit, but no other treatment \nwas provided for Claimant’s c-spine.  \nThe parties stipulated that, on May 10, 2021, the Claimant was \nassigned an impairment rating of five percent (5%) to the body as a whole \nafter reaching maximum medical improvement for his compensable \nshoulder injury.  \nThe Claimant participated in an initial Functional Capacity Evaluation \non May 19, 2021: “The results of this evaluation indicate that a reliable \neffort was put forth, with 53 of 55 consistency measures within expected \nlimits....Mr. Hodge completed functional testing on this date with reliable \nresults. Overall, Mr. Hodge demonstrated the ability to perform in the light \nclassification of work[.]”  \nAccording to the record, the Claimant was assessed at maximum \nmedical improvement with regard to his low back injury on August 11, 2021 \nby Dr. Wayne Bruffett. Dr. Bruffett gave the Claimant a “7% impairment \nrating of the whole person” and released the Claimant without restrictions \nfor his low-back injury. The parties stipulated that “Claimant was initially \nassessed at maximum medical improvement with regard to his low back \n\nHODGE – H004773  6\n  \n \n \ninjury on 11 August 2021, but was later deemed to require surgery that \noccurred on 2 December 2021, with maximum medical improvement being \nfound again on 3 May 2022 with a ten percent (10%) impairment rating \nassigned at that time.” \nThe Claimant participated in another Functional Capacity Evaluation \non April 25, 2022: “The results of this evaluation indicate that a reliable \neffort was put forth, with 50 of 53 consistency measures within expected \nlimits....Mr. Hodge completed functional testing on this date with reliable \nresults. Overall Mr. Hodge demonstrated the ability to perform work in the \nlight classification of work[.]” \nThe Claimant began working with Vocational Rehabilitation \nConsultant, Keondra Hampton on May 24, 2022. Keondra Hampton, \nprovided a Vocational Rehabilitation Progress Report on July 1, 2022. \nKeondra Hampton reported in part, “Mr. Hodge has completed online job \napplications and is waiting on employee responses....He is continuing to \napply for several job openings each week so we are anticipating he will \nhave interviews in the coming months.” Hampton further reported: “Mr. \nHodge is an excellent candidate to return to the workforce. He has a stable \nwork history and has acquired some skills and transferrable skills from his \neducation, training, and work experience that he should be able to utilize in \n\nHODGE – H004773  7\n  \n \n \nreturning to a new lighter capacity job in the future.” \nOn September 15, 2022, Keondra Hampton further reported in \nanother Vocational Rehabilitation Progress Report that “[Mr. Hodge] is \neager to return to the workforce to a new position and is agreeable to \nworking with me. He is being cooperative with the job search process to \ndate and is completing job applications on a weekly basis. However, he has \nnot received any job offers for permanent placement to date. He does \ncontinue to apply for job openings each week.” \nKeondra Hampton provides another Vocational Rehabilitation \nProgress Report on December 9, 2022. Keondra Hampton reported in part \n“Mr. Hodge reported he has been completing job applications weekly and \nhas not heard from any employer for which he applied. He stated, in \naddition to the jobs he has received from me, he has conducted his own job \nsearch on search engines such as Indeed and Glassdoor....Mr. Hodge \nstated he is having difficult securing employment with consistent \nsustainable income, but he is still optimistic.”  \nKeondra Hampton provides a final Vocational Rehabilitation \nProgress Report on January 13, 2023. Keondra Hampton reported that \n“[Mr. Hodge] reported he applied for multiple construction inspector jobs but \nhas not heard back from any of the employers. Mr. Hodge stated he \nbelieves he is not being considered for any positions based on the fact he \n\nHODGE – H004773  8\n  \n \n \nhas not obtained a bachelor's degree.”  \nA pre-hearing order was filed on October 3, 2023. According to the \ntext of the pre-hearing order, the Claimant contended the following: \n“Claimant contends that he was initially assessed at maximum medical \nimprovement with regard to all injuries on August 11, 2021. That this was \npremature, and he did not reach maximum medical improvement until May \n3, 2022, and as a result there has been an underpayment of temporary total \ndisability benefits. Claimant contends he was entitled to temporary total \ndisability benefits during the time frame from May 13, 2021, through \nDecember 5, 2021. Claimant contends that his permanent partial disability \nbenefits should have started on May 3, 2022, and contends that he would \nbe entitled to permanent partial disability benefits beginning at that time for \nthe five percent (5%) impairment rating assigned to his right shoulder, as \nwell as the ten percent (10%) impairment rating assigned to his low back. \nClaimant also contends that given the nature of the, “posterior disc bulges \nidentified at C5-6 and C6-7 with increased signal associated cervical cord” \nthat he should be awarded a cervical impairment rating of at least five \npercent (5%). Claimant contends he should be awarded wage-loss disability \nbenefits in excess of the anatomical impairment ratings assigned. The \nClaimant is currently receiving pain management medications being \nprescribed through his primary physician, Dr. Becker, which Claimant \n\nHODGE – H004773  9\n  \n \n \ncontends is reasonable, and necessary associated with the pain he \ncontinues to experience and contends that Respondents should be ordered \nto pay for same. Claimant contends Respondents should be ordered to pay \nattorney’s fees as provided by law.” \n The Respondents contended, “The Claimant reported lifting a box of \nblueprints when the blueprints slid and his right foot. He reported that he fell \nforward, grabbed the wheeled cart, and slid into the file cabinet. The \nRespondents accepted this claim as compensable and initiated appropriate \nbenefits. The Respondents contend that appropriate temporary total \ndisability and permanent partial disability benefits have been paid to \nClaimant, to date. The Claimant underwent right shoulder arthroscopy on \nDecember 18, 2020, by Dr. Reynolds and was found to be at maximum \nmedical improvement for his shoulder injury on May 10, 2021. The Claimant \nwas assigned a ten percent (10%) whole-body impairment rating by Dr. \nReynolds on June 7, 2021. The Respondents accepted and paid this rating. \nThe Claimant was treated for lumbar symptoms by Dr. Warren Bruffett. \nMedical records indicate that the Claimant did not want any additional \nsurgery and thus Dr. Bruffett found him to be at maximum medical \nimprovement on May 11, 2021. Dr. Bruffett continued the Claimant’s full-\nduty work status on June 21, 2021, as the Claimant did not wany any \nadditional surgery. After many months, the Claimant indicated he was \n\nHODGE – H004773  10\n  \n \n \ninterested in additional surgery on November 15, 2021. An L4-5 \nlaminectomy was performed on December 2, 2021. Temporary total \ndisability benefits were reinstated and paid through May 2, 20221, \npermanent partial disability benefits were then initiated and paid through \nMarch 9, 2023. The Claimant has been paid appropriate periods of \ntemporary total disability and permanent partial disability benefits. The \nClaimant is not entitled to temporary total disability benefits from May 13, \n2021, through December 5, 2021, as he declined additional medical \ntreatment recommendations from his authorized treating physician, namely \nan additional surgery, and he was found to be at maximum medical \nimprovement and released to full-duty work. He cannot now claim to be \nentitled to temporary total disability benefits for the same time period for \nwhich he refused medical treatment. The Respondents contend that there \nhas been no underpayment of either temporary total disability or permanent \npartial disability benefits. The Claimant received all temporary total disability \nbenefits to which he was entitled. The Respondents will contend that \npermanent partial disability benefits were overpaid to the Claimant in the \namount of $1,589.00. The Claimant has many years of construction \nexperience and related skills. He currently works for a company that \nrequires him to visit construction sites to monitor building progress. He gets \npaid $700.00 per completed assignment. He has applied for social security \n\nHODGE – H004773  11\n  \n \n \nbenefits and is awaiting a decision on his claim. The Respondents contend \nthat the Claimant is not entitled to wage-loss disability benefits based on \nthese facts. The Respondents have paid and continue to pay reasonably \nnecessary medical expenses incurred by Claimant, including those form Dr. \nBrecker. \n  The parties agreed to litigate the following issues:  \n1. Whether the Claimant was owed for underpayments of \ntemporary total disability and permanent partial disability \nbenefits.  \n2. Whether the Claimant was entitled to an impairment rating \nassociated with a cervical injury.  \n3. Whether the Claimant was entitled to additional medical \ntreatment.  \n4. Whether the Claimant is entitled to an attorney’s fee.  \n \n  An administrative law judge filed an opinion on March 19, 2024. The \nadministrative law judge found that the Claimant failed to prove he was \nunderpaid or owed additional payments for temporary total disability \nbenefits, that Claimant failed to prove he was underpaid permanent partial \ndisability benefits under his contention that “permanent partial disability \nbenefits should have started on May 3, 2022” as the record reflects that \npermanent partial disability payments began on that date, that the Claimant \nhas failed to satisfy his burden in showing that he is entitled to an \nimpairment rating for a cervical injury, that the Claimant has not satisfied his \nburden in showing that he is entitled to wage-loss disability benefits, and \nfinally that the Claimant is not entitled to an attorney’s fee consistent with \n\nHODGE – H004773  12\n  \n \n \nthese findings. The administrative law judge therefore denied and dismissed \nthe claim. The Claimant appeals to the Full Commission.  \nII. ADJUDICATION \n(A) Temporary Total Disability Benefits  \nTemporary total disability benefits are appropriate where the \nemployee remains in the healing period and is totally incapacitated from \nearning wages. Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981). The Claimant has the burden of proof in showing that \nhe remains in his healing period and is totally incapacitated from earning \nwages. Id.  \nIt is the Commission’s duty to translate the evidence of record into \nfindings of fact. Gencorp Polymer Prods. v. Landers, 36 Ark. App. 190, 820 \nS.W.2d 475 (1991). After his June 15, 2020 work-accident Claimant was \ndiagnosed with an admittedly compensable lumbar condition of a facet cyst \non his right L4-5, and disc bulging and stenosis by Dr. Bruffet. Dr. Bruffet \nthen recommended a bilateral laminectomy for Claimant’s compensable \ninjury. Claimant testified at the hearing that he did not want to undergo \nanother surgery as he believed that the surgery wasn’t an absolute \nguarantee that his condition would improve, and he wanted the surgery to \nbe considered a last resort. Unfortunately for the Claimant, the surgery was \nnecessary and was performed on December 2, 2021. Trent Tappan PA-C \n\nHODGE – H004773  13\n  \n \n \nopined on February 8, 2021, that he wanted to give Claimant’s “back some \ntime to improve,” while the Claimant had may have had work restrictions,  \nthere is no medical professional that takes Claimant completely off work for \nthe requested time period of May 13, 2021 through December 20, 2021.  \nAn administrative law judge found in the present matter, “The \nClaimant has not satisfied his burden for an underpayment on or additional \npayments owed for temporary total disability benefits.” The Full Commission \naffirms the administrative law judge’s finding that the Claimant has not \nsatisfied his burden of proof as to an underpayment of, or additional \npayments owed, for temporary total disability.  \n(B) Impairment Rating \nAn administrative law judge found in the present matter, “5. The \nClaimant has not satisfied his burden in showing that he is entitled to an \nimpairment rating for a cervical injury.”  \nClaimant underwent a C-Spine MRI on January 22, 201. Dr. Kirk \nReynolds read this MRI and diagnosed Claimant with cervical degenerative \ndisc disease with bulges at C5-C6 and C6-C7. There is insufficient \nevidence in the record to presume that the Claimant’s cervical spine \ndiagnoses are a direct result of his June 15, 2020, work accident. \nTherefore, the Commission affirms the administrative law judge’s finding \nthat the Claimant did not satisfy his burden in showing that he is entitled to \n\nHODGE – H004773  14\n  \n \n \nany benefits relating to an impairment rating for a cervical injury.  \n(C) Wage-Loss \nWage-Loss factor is the extent to which a compensable injury has \naffected the Claimant’s ability to earn a livelihood. Cross v. Crawford \nCounty Mem. Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). The \nCommission is charged with the duty of determining disability. Id. In \nconsidering claims for permanent partial disability exceeding the \nemployee’s percentage of permanent physical impairment, the Commission \nmay take into account, in addition to the percentage of permanent physical \nimpairment, such factors as the employee’s age, education, work \nexperience, and other matters reasonably expected to affect his future \nearning capacity. Ark. Code Ann. § 11-9-522(b)(1)(Repl. 2012). Such other \nmatters are motivation, post-injury income, credibility, demeanor, and a \nmultitude of other factors. Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 \n(1961): City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 \n(1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990); \nCross v. Crawford County Memorial Hosp., supra. It is well established that \na Claimant’s prior work history and education are factors to be considered \nin determining eligibility for wage-loss benefits. See Cross v. Crawford \nCounty Memorial Hosp., supra.; Glass v. Edens, supra.; City of Fayetteville \nv Guess, supra.; Curry v. Franklin Electric, supra. \n\nHODGE – H004773  15\n  \n \n \nIn workers’ compensation cases, the Commission functions as the \ntrier of fact. Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988). The Commission is not required to believe the testimony of the \nClaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief. Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002) The Full Commission \nhas the duty to adjudicate the case de novo and we are not bound by the \ncharacterization of evidence adopted by an administrative law judge. Tyson \nFoods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).  \nIn the present matter, the Claimant is 64 years-old. Claimant \ngraduated high school in 1978 and has one semester of post-secondary \neducation. Claimant obtained an Inspector’s License with the Uniform \nFederal Accessibility License and is a certified Welding Inspector. Claimant \ntestified that his prior work-history includes owning a big-rig truck washing \nbusiness, renovations and remodeling for residential homes and \nsubcontracting inspections for residential buildings. Claimant further \ntestified at the hearing that he attempted to work as a window installer, as \nhe had done this kind of work in the past, but he was unable to continue this \nline of work due to the pain he was experiencing in his neck and back. \nClaimant then attempted to re-enter the workforce after his injury as a \nsubcontracted inspector for residential buildings with Leetex. This position \n\nHODGE – H004773  16\n  \n \n \nis two-to-three working days a month for which Claimant receives \napproximately $1400 per month. Claimant has undergone two Functional \nCapacity Evaluations where he received a light-duty classification for work \nand exhibited reliable effort. Claimant has received impairment ratings in \nthe amount of five-percent (5%) to the body as a whole for his shoulder, \nand ten-percent (10%) for the body as a whole for his back as a result of his \ncompensable injuries. Claimant worked with vocational rehabilitation in an \neffort to re-join the workforce for which the rehabilitation consultant, \nKeondra Hampton noted that  Claimant was eager to join the workforce and \nhad exhibited independent effort as well as the effort with her to obtain \ngainful employment. Since Claimant was terminated from his position he \nwas offered two positions, both of which would have paid him significantly \nless than the position he worked with the Respondents where he made \napproximately $47,000 per year.  \n The Full Commission finds that the Claimant sustained wage-loss \ndisability in the amount of 20% in excess of the permanent anatomical \nimpairment accepted and paid by the Respondents. Claimant’s \ncompensable injuries have affected his ability to earn a livelihood. Claimant \nhas limited education. Claimant is unable to perform labor intensive work as \nhe has in the past. Claimant clearly exhibits a willingness to work. Claimant \nis also unable to earn wages equal to or greater than his average weekly \n\nHODGE – H004773  17\n  \n \n \nwage at the time of the accident.  \nAfter reviewing the entire record de novo, therefore, the Full \nCommission finds that the Claimant did not prove he was entitled to \nadditional temporary total disability benefits between May 13, 2021, and \nDecember 20, 2021. The Full Commission finds that the Claimant is not \nentitled to an impairment rating for his cervical spine. The Full Commission \nfinds that the Claimant sustained wage-loss disability in the amount of 20% \nin excess of the permanent anatomical impairment accepted and paid by \nthe Respondents. The Claimant’s attorney is entitled to fees for legal \nservices in accordance with Ark. Code Ann. § 11-9-715(a)(Repl. 2012). For \nprevailing in part on appeal, the Claimant’s attorney is entitled to an \nadditional fee of five-hundred dollars ($500), pursuant to Ark. Code Ann. § \n11-9-715(b)(Repl. 2012).  \nIT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n     \n DISSENTING OPINION \n  \n I must respectfully dissent from the Majority’s finding that the \nclaimant is entitled to wage-loss disability benefits in the amount of twenty \n\nHODGE – H004773  18\n  \n \n \npercent (20%) in excess of the permanent anatomical impairment accepted \nand paid by the respondents.  \n When a claimant has been assigned an anatomical impairment \nrating to the body as a whole, the Commission has the authority to increase \nthe disability rating, and it can find a claimant permanently disabled based \non the wage-loss factors. Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, \n201 S.W.3d 449 (2005).  \nThe wage-loss factor is the extent to which a compensable injury has \naffected the claimant's ability to earn a livelihood. Enterprise Products \nCompany v. Leach, 2009 Ark. App. 148, 316 S.W.3d 253 (2009).  \nWhen determining wage-loss disability, the Commission may take \ninto account, in addition to the percentage of permanent physical \nimpairment, such factors as the employee’s age, education, work \nexperience, and other matters reasonably expected to affect his or her \nfuture earning capacity.  Ark. Code Ann. § 11-9-522(b)(1); Glass v. Edens, \n233 Ark. 786, 346 S.W.2d 685 (1961).  Other factors may include—but are \nnot limited to—motivation to return to work, post-injury earnings, credibility, \nand demeanor.  Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d \n130 (1990).  The Commission may use its own superior knowledge of \nindustrial demands, limitations, and requirements in conjunction with the \n\nHODGE – H004773  19\n  \n \n \nevidence to determine wage-loss disability. Taggart v. Mid America \nPackaging, 2009 Ark. App. 335, 308 S.W.3d 643 (2009). \nOur courts also consider the claimant’s motivation to return to work \nsince a lack of interest or negative attitude in pursuing employment \nimpedes the assessment of the claimant's loss of earning capacity. Logan \nCounty v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005).  \n Here, the claimant was initially released without restriction and \nplaced at maximum medical improvement (MMI) on August 11, 2021.  (Cl. \nEx. 1, P. 220).  At that time, Dr. Wayne Bruffett opined further prescriptions \naddressing the claimant’s pain “would be under Mr. Hodges regular \ninsurance, not Workers’ Comp.” and assigned the claimant a seven percent \n(7%) whole-body impairment rating.  Id.  \nAfter later bilateral hemilaminectomies at L4-5 performed on \nDecember 2, 2021, the claimant underwent a functional capacity evaluation \n(FCE) and was assigned the light work classification and received an \nadditional ten percent (10%) whole-body impairment rating.  (Cl. Ex. 1, Pp. \n236, 281). \n In the time since his injuries, the claimant has worked with a \nvocational rehabilitation counselor, Ms. Keondra Hampton.  In July of 2022, \nMs. Hampton opined that the claimant: \nis an excellent candidate to return \nto the workforce.  He has a stable \n\nHODGE – H004773  20\n  \n \n \nwork history and has acquired \nsome skills and transferrable skills \nfrom his education, training, and \nwork experience that he should be \nable to utilize in returning to a new \nlighter capacity job in the \nfuture.                                                                                                                          \n \n(Cl. Ex. 1, P. 290). However, despite Ms. Hampton’s efforts, the claimant \ndeclined three jobs between September 2022 and January 2023: one \nbecause the offer was too low, another because he felt the work schedule \nwas inconsistent, and another because he was not able to work for a low \nwage of $32,404.94(Cl. Ex. 1, Pp. 299, 304, 319). \n The claimant has an extensive work history, including work as a \ncertified welding inspector, certified appraiser, licensed home inspector, \ncertified lead paint inspector, and licensed general contractor. (Hrng. Tr., \nPp. 57-58). His lifetime of work has provided him with knowledge of HUD \nquality standards and Life Safety Code requirements for institutional \nfacilities.  Id. The claimant has previously owned a home remodeling \ncompany and a truck washing business which led to a business \nmanufacturing soap for truck washing.  Id. The claimant’s testimony \nrevealed that the claimant can: \n• read and write; \n• drive his own vehicle for up to two hours; \n• evaluate blueprints and building plans; \n\nHODGE – H004773  21\n  \n \n \n• prepare food for himself; \n• operate a computer; \n• fish; \n• lift and carry firewood; and \n• do research and type reports. \n(Hrng. Tr., Pp. 82, 83, 85). \n The claimant is currently working part-time as a building and \nconstruction inspector for Leetex.  He is limited by HUD to two inspections a \nday and is paid $350.00 per inspection. (Hrng. Tr, Pp. 77-79). Even though \nhe is limited by HUD to two inspections a day, this does not prevent him \nfrom going out and doing inspections for other companies or their \ncontractors.  Id.  \n The claimant has failed to establish that he is entitled to wage-loss \nbenefits in excess of his permanent impairment rating. He is currently \nworking in a field commensurate with his skills and experience, and he has \nturned down multiple opportunities for work through vocational \nrehabilitation. He has attained various professional licenses and \ncertifications. This is simply a case of the claimant not wishing to re-enter \nthe workforce on a full-time basis, as there is no evidence that his inability \nto obtain gainful employment is related to anything beyond his own self-\nlimiting behavior.  \n\nHODGE – H004773  22\n  \n \n \nIn his current job, he is limited by HUD to two inspections per day at \n$350.00 per inspection but is not prohibited from doing unlimited \ninspections for another company or contractor. The claimant has extensive \nknowledge and experience in his field and remains highly employable.  \nThe record does not reflect that the claimant’s inability to find work is \ncausally related to his on-the-job injury, and he is therefore not entitled to \nwage-loss benefits. \nAccordingly, for the reasons stated above, I respectfully dissent. \n                                                    \n___________________________________ \n                                           MICHAEL R. MAYTON, Commissioner","textLength":31442,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H004773 DONALD P. HODGE, EMPLOYEE CLAIMANT DEPT. OF HUMAN SERVICES, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER RESPONDENT OPINION FILED AUGUST 7, 2024","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":["back","neck","shoulder","hip","cervical","lumbar"],"fetchedAt":"2026-05-19T22:29:45.134Z"},{"id":"alj-H104907-2024-08-07","awccNumber":"H104907","decisionDate":"2024-08-07","decisionYear":2024,"opinionType":"alj","claimantName":"Cedrick Bennett","employerName":"Pine Bluff School District","title":"BENNETT VS. PINE BLUFF SCHOOL DISTRICT AWCC# H104907 August 7, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BENNETT_CEDRICK_H104907_20240807.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BENNETT_CEDRICK_H104907_20240807.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H104907 \n \nCEDRICK BENNETT, EMPLOYEE        CLAIMANT \n \nPINE BLUFF SCHOOL DISTRICT, EMPLOYER          RESPONDENT \n    \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nCARRIER/TPA              RESPONDENT \n \n \nOPINION FILED 7 AUGUST 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 9 May 2024 in Pine Bluff, Arkansas. \n \nDavis Law Firm, Mr. Gary Davis, for the claimant. \n \nWorley, Wood & Parrish, PA, Ms. Melissa Wood, for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 9 May 2024 in Pine Bluff, Arkansas. The \nparties participated in a pre-hearing telephone conference on 26 March 2024. A Prehearing \nOrder, admitted to the record without objection as Commission’s Exhibit No 1, was entered \non 15 April 2024. \nThe Order stated that the only ISSUE TO BE LITIGATED was whether the \nclaimant was entitled to additional medical treatment. \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire \nResponses, were incorporated into the Prehearing Order.  \nPer the claimant’s CONTENTIONS, he was permitted a change of physician and then \nseen by Dr. Angela Lovett. The respondents paid for his initial evaluation, but have since \ncontroverted his entitlement to additional treatment. \nPer the respondents’ CONTENTIONS, the claimant has received all appropriate \nbenefits regarding his accepted injury of 2 June 2021. They have denied additional \n\nC. BENNETT- H104907 \n2 \n \ntreatment as being reasonable and necessary since 6 May 2022. Any treatment sought \nwithout the respondents’ knowledge prior to that date was unauthorized. They also contend \nthat the claimant had preexisting problems with his cervical spine and that any additional \ntreatment sought in relation to that issue is not related to the 2 June 2021 injury. \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on or about 2 June 2021. \n \nThe claimant was the sole WITNESS to testify at the hearing.  \nThe EVIDENCE presented consisted of the testimony along with Commission’s \nExhibit No 1 (the 15 April 2024 Prehearing Order), Claimant’s Exhibit No 1 (120 pages of \nmedical records and two pages of non-medical records), and Respondents’ Exhibit Nos 1 (22 \npages of medical records) and No 2 (7 pages of non-medical records). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the \nwitness, observing his demeanor, I make the following findings of fact and conclusions of \nlaw under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that he is entitled to \nadditional medical benefits. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \nClaimant Cedric Bennett \nThe claimant has been an employee of the Pine Bluff School District for twenty-eight \nyears, working as a mechanic for twenty-six of those years. He was involved in an on-the-\njob accident on 2 June 2021 while working to replace an exterior light on a school bus. The \n\nC. BENNETT- H104907 \n3 \n \nclaimant was on a ladder behind the bus when it unexpectedly started to roll backwards. \nHe was knocked from the ladder, and the bus rolled over his hand and elbow. While trying \nto get out from under the bus, he also hit his head. The claimant attributed the accident to \nthe bus’s airbrake not being properly applied prior to starting repairs. \n According to the claimant, he has experienced pain, numbness, and tingling in his \nlegs and arms, along with difficulty turning his head after the accident. He offered that he \nhas felt some relief on his left side since having an SI joint procedure. The claimant stated \nthat he would like to proceed with a similar procedure for his right side. \n After the accident, the claimant was initially treated at MedExpress and Jefferson \nRegional Medical Cener. He then presented to OrthoArkansas, where he was seen by Dr. \nVictor Vargas, who ordered imaging and some injections for pain relief. The claimant \nrecalled the respondents ending their authorization of ongoing care on 6 May 2022. \nThereafter, he sought treatment utilizing his group health plan. Since coverage was denied \nby the carrier, the claimant has seen several providers, including but not limited to a pain \nspecialist and a rheumatologist. The claimant stated that his treatment has involved \nimaging and diagnostics, along with injections and prescriptions for pain. \n In December of 2023, the claimant saw Dr. Angela Lovett through a change of \nphysician authorized by the Commission. According to his testimony, Dr. Lovett was willing \nto provide ongoing treatment, but that was not authorized by the respondents. \n The claimant regularly takes Advil, Tylenol, and prescribed Hydrocodone for pain. \nHe stated that his job duties are limited to lighter work because of his pain problems. \nAccording to his testimony, the claimant had previously experienced some back troubles, \nbut he had not required injections for his pain. \n On cross examination, the claimant confirmed that he fell about four feet from the \nladder into a seated position on the ground and that he bumped his head while getting up. \n\nC. BENNETT- H104907 \n4 \n \nHe acknowledged testifying at his deposition, “I bumped my head and I hurt my lower back \nand my tail bone and the left hand and elbow.” [TR at 21.] Discussing his treatment after \nthe accident, he went on: \nQ:  Okay. I asked you in the deposition, “What body parts hurt?” Your \nresponse was, “I bumped my head and I hurt my lower back and my tail bone \nand the left hand and elbow.” Is that right? \nA:  Yes, ma’am. \nQ:  Okay. Now, as far as your treatment with Dr. Vargas, you indicated that \nyou had CT scans done, x-rays, he also gave you some pain pills, a boot or \nsomething like that for your foot, is that right? \nA:  I had a pouch on my foot, yeah. \nQ:  Okay. And he also gave you a brace for your elbow, sent you for some \ninjections, and physical therapy, is that right? \nA:  Yes, ma’am. \nQ:  You would agree it’s been several years now since you’ve seen Dr. Vargas, \ncorrect? \nA:  Yeah, I can’t think of the exact – yeah, yes, ma’am. \nQ:  Okay. And after Dr. Vargas indicated to you that he couldn’t do anything \nelse, that’s when you started going to your family doctor, Dr. Harris, for \ntreatment, is that right? \nA:  Yes, ma’am. \n \n[TR at 21-22.] \n The claimant further testified that he believed that a previous hip surgery was \nrelated to his work injury and that he is wanting surgery on his right hip, too, which he \nrelates to his work injury. He acknowledged a medical report in July of 2021 that noted \nneck pain for the two or three months preceding that appointment. He did not dispute Dr. \nVargas’ 4 August 2021 record indicating that he was to be off work for the following three \nweeks and that he would then return to full duty. The claimant did not recall Dr. Vargas \nassigning him a zero percent impairment rating. He acknowledged beginning treatment at \nthe Pain Treatment Centers of America after his release from Dr. Vargas’ care; but he \nwould not endorse the accuracy of his complaints listed in their records. \n  Q:  That report though shows that you were there for pain your lower back, \nleg, neck, knee, mid-back, abdomen, ankle, hand, foot, chest, joints, nerves, \nand your shoulder. Does that sound like all the things you would have talked \nto your doctors there about? \n\nC. BENNETT- H104907 \n5 \n \n  A:  I’m not going to agree—not that I know of. Not with all that. I just—I \nain’t gonna say yes or no about that. \n \n[TR at 25.] \n When asked about a long-term disability application, he acknowledged that the form \nrelates to an injury in August of 2022, that the form denies any relation to a workplace \ninjury, and that the form denies the filing of any workers' compensation claim. \n At the conclusion of direct and cross examination, the claimant was asked by the \nCommission to clarify the treatment he was seeking in his claim. In response, he explained, \n“I just want someone to fix me like I was before it happened with my accident. If you \ntalking about if he want to do another surgery on this side or whatever relieves me, that’s \nwhat I want. That’s the only thing.” [TR at 33.] \nMedical Records \n The emergency department record from 2 June 2021 notes, “Fell about 5 feet off a \nladder At work. Working on a school bus, when brake released and bus rolled into him \nknocking him off the ladder. Bus rolled over left hand. Complains of left hand, left elbow \nand lower back. Hit head. No loss of consciousness. No neck pain.” He was discharged with \nTramadol and Flexeril and instructions to follow up with his primary physician in one to \ntwo days or to return to the emergency department if any symptoms worsened.  \n He followed up on 8 June 2021 at Med Express with ongoing complaints of pain and \na headache and was then referred to the emergency department for a CT. X-ray imaging of \nhis foot and wrist were also ordered. The imaging was not remarkable but for degenerative \nchanges observed at his cervical spine, wrist, and foot. The claimant was discharged with \nTylenol #3 and instructions to follow up with an orthopedic consult if his symptoms did not \nimprove. He was to return to work in three days. \n\nC. BENNETT- H104907 \n6 \n \n The claimant received another off-work note from MedExpress on 9 June 2021, \nbefore seeing Dr. Victor Vargas on 17 June 2021. The notes from his appointment with Dr. \nVargas relay cervical disc degeneration and lumbar or lumbrosacral disc degeneration that \nonset in 2014. The claimant’s assessment for that visit included: \nLow back pain \nDegenerative disc disease \nFacet arthropathy \nPossible L5 spondylolysis \nLeft wrist sprain \nLeft wrist mild-to-moderate osteoarthritic changes \n \n[Cl. Ex. No 1 at 26.] He was taken off work and ordered to undergo an MRI. According to a \nnote from Dr. Vargas on 7 July 2021, they discussed the following MRI findings: \nMRI of the lumbar spine showed a bulging disc at L5-S1 that contacts and \ndisplaces the traversing left S1 nerve root. Spondylolysis at L5 marrow \nedema signal is noted in the pars interarticularis on the right side. \n \n[Cl. Ex. No 1 at 38.] An anesthetic and steroid injection at L5-S1 was given the same day, \nand the claimant received a note for returning to work on 4 August 2021. [Cl. Ex. No 1 at \n40.]   \n The claimant saw Dr. Vargas again on 16 July 2021, when Dr. Vargas found no \nobjective findings related to the claimant’s complaints of left foot and neck pain. The \nclaimant reported taking a muscle relaxer that was not prescribed by Dr. Vargas. Another \ninjection and then reevaluation were planned for the following month. Additional physical \ntherapy was also ordered. \n Dr. Vargas saw the claimant again on 4 August 2021. He charted the following: \nI have discussed with the patient that we have found no objective \nfinding of injury of the lumbar spine, however [he] has been treated for an \naggravation of the pre-existing condition but he has had transient relief of \nthe symptomology. \n I am considering that the patient has exhausted the options of \ntreatment conservatively to mitigate his symptoms of pain. However, the \npain is multifactorial and I am considered probably more likely than not his \nsymptoms are due to the preexisting condition. \n\nC. BENNETT- H104907 \n7 \n \n Consequently, I think the patient is having relief of the symptomology \nwith the physical therapy and I highly recommended to continue physical \ntherapy for the cervical spine and lumbar spine with extension of 3 weeks. \nAfter that I would consider that the patient has exhausted the options of \ntreatment for conservative treatment and he can be considered at MMI when \nhe finished 3 more weeks of physical therapy prescribed today. \n Work status: The patient will be off work until 8/25/2021 where he \nwill return to work on full duty no restriction. \n Impairment rating: The patient is entitled to 0% impairment as a \nwhole person based on the Guides to the Evaluation of Permanent \nImpairment, Fourth Edition, from the American Medical Association. \n \n[Cl. Ex. No 1 at 58.] \n The claimant then returned to see Dr. Vargas on 8 September 2021. According to \nthat note: \nPatient presented today to the clinic, however he has been released in the \nprevious visit at MMI.  \nThe patient stated that he finished physical therapy last week. \nHe complains of some headaches. \nI explained [to] the patient that the patient was released at maximal medical \nimprovement last visit and I have no further recommendations and he is \nsupposed to return to work on full duty no restrictions on 8/25/2021. \nFor further details refer to my previous visit on 8/4/2021. \n \n[Cl. Ex. No 1 at 68.] A return-to-work note for that day was provided. \n On 26 October 2021, the claimant presented to Pain Treatment Centers of America \nas a new patient under the care of Dr. Heather Whaley. The note from that visit lists: \nChief Complaint: Lower Back and Leg Pain \nOther Complaints:  Headache, Neck Pain, Knee Pain, Mid Back Pain, \nAbdominal Pain, Ankle Pain, Hand Pain, Foot Pain, Chest Pain, Multiple \nJoint Pain, Nerve Pain, Shoulder Pain, Muscle Spasm. \n \n[Resp. Ex. No 1 at 17.] He was prescribed Gabapentin, Tizanidine, and Tramadol, and his \nrecords from Dr. Vargas were requested; but there is no mention in the record of a \nworkplace accident. \n The claimant then presented to Legacy Spine & Neurological Specialists in August \nof 2022, reporting low back and neck pain. He reported his pain as increasing over the past \n\nC. BENNETT- H104907 \n8 \n \nyear. X-ray and MRI imaging studies were ordered and interpreted by Dr. Dominic Maggio. \nHis notes provide: \nLumbar spine MRI from 9/7/22 demonstrates degenerative disease. Of note at \nL5-S1 is a grade 1 anterolisthesis. There is moderate to sever left-sided and \nmoderate right-sided neural foraminal stenosis. No central canal stenosis. At \nL4-5 there is mild to moderate bilateral neural foraminal stenosis. No central \ncanal stenosis. No other areas of significant central canal or neural foraminal \nstenosis. There is preserved lumbar lordosis. \n \nCervical spine MRI from 9/7/22 demonstrates degenerative disease. Of note, \nat C6-7 there is moderate left-sided, no significant right-sided neural \nforaminal stenosis. At C4-5 there is moderate right-sided, no significant left-\nsided neural foraminal stenosis. No central canal stenosis. No other \nsignificant central canal or neural foraminal stenosis. No spondylolisthesis. \nThere is preserved cervical lordosis. \n \n. . . \n \nAP views of the pelvis demonstrate bilateral SI joint degenerative disease. No \nevidence of SI joint arthritis. No evidence of pelvic fractures or masses/lesions \nnear the SI joint. \n \n[Cl. Ex. No 1 at 80.] A left-sided L5-S1 nerve block was planned. \n The claimant returned to see Dr. Maggio several more times for ongoing lower back, \nhip, and buttock pain. He reported minimal or only temporary relief from injection therapy \nbefore agreeing to proceed with a left-sided SI fusion in January of 2023.  \n On 4 December 2023, the claimant saw Dr. Angela Lovett after exercising his right \nto a change of physician through the Commission. She coded the following diagnoses: \nM5416 Radiculopathy, lumbar region \nM4306 Spondylolysis \nM4602 Spinal enthesopathy, cervical region \nM4607 Spinal enthesopathy, lumbosacral region \n \n[Cl. Ex. No 1 at 119.] She also administered a steroid injection at L4-L5-S1.  \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted as fact. It is settled that the \nCommission, with the benefit of being in the presence of the witnesses and observing their \n\nC. BENNETT- H104907 \n9 \n \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 \n(1999).   \nA.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT HE IS ENTITLED TO ADDITIONAL MEDICAL BENEFITS. \n \nThe claimant is not entitled to additional medical benefits for ongoing medical \ntreatment. He was treated for pain after his workplace accident; and as the course of his \ntreatment went on, it became clear that his complaints were related to degenerative \nproblems in his neck, lower back, and hips.  \nAt issue is whether the claimant is entitled to ongoing treatment related to a \nworkplace accident on 2 June 2021. His claim was initially accepted and benefits were \nprovided thereafter while the claimant sought and received care from Dr. Vargas.  \nAn employer is required to provide treatment that may be reasonably necessary in \nconnection with a compensable injury. ACA § 11-9-508(a). Reasonable and necessary \nmedical services may include those necessary to diagnose a compensable injury, to reduce \nor alleviate symptoms, to maintain healing, or to prevent further deterioration of damage. \nJordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995). The employee has \nthe burden of proving by a preponderance of the evidence that medical treatment is \nreasonably necessary. Stone v. Dollar General Stores, 91 Ark. App. 260, 209 S.W. 3d 445 \n(2005). In so doing, he must also establish that the treatment is causally related to his \naccepted injuries from 2 June 2021. Pulaski Cty. Spec. Sch. Dist. v. Tenner, 2013 Ark. App. \n569, 2013 WL 5592602. \nAfter several previous visits, Dr. Vargas saw the claimant again on 4 August 2021 \nand explained that his symptoms were due to preexisting, degenerative conditions. He \nassigned a zero percent impairment rating and returned the claimant to work at MMI, on \n\nC. BENNETT- H104907 \n10 \n \nfull duty, without restrictions on 25 August 2021. I find that opinion credible. Poulan Weed \nEater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002) (the Commission may accept or \nreject a medical opinion and determine its probative value). I further credit his opinion on 8 \nSeptember 2021 relaying again that the claimant was already released at MMI and that he \nhad no further treatment recommendations as related to the workplace injuries.  \nThe claimant later sought care on his own for pain management. Degenerative \nchanges were observed across the imaging studies that were later performed, and the \ntreatment he received was oriented towards relieving those degenerative conditions. Upon \nbeing granted a change of physician, the claimant saw Dr. Lovett who noted his many \ncomplaints and coded essentially chronic, degenerative conditions. She did not provide an \nopinion clearly relating his current complaints or possible future treatments to the incident \nin June of 2021. \nAccordingly, I do not find that the claimant is entitled to additional medical benefits \nfor ongoing treatment. \nV.  ORDER \n     Consistent with the Findings of Fact and Conclusions of Law stated above, this claim for \nadditional benefits is denied and dismissed.  \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":19268,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H104907 CEDRICK BENNETT, EMPLOYEE CLAIMANT PINE BLUFF SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER/TPA RESPONDENT OPINION FILED 7 AUGUST 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:4","denied:2"],"injuryKeywords":["cervical","back","hip","neck","knee","ankle","shoulder","wrist"],"fetchedAt":"2026-05-19T22:49:54.312Z"},{"id":"alj-H306360-2024-08-06","awccNumber":"H306360","decisionDate":"2024-08-06","decisionYear":2024,"opinionType":"alj","claimantName":"David Beard","employerName":null,"title":"BEARD VS. LEVI TOWERS, INC.AWCC# H306360August 6, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BEARD_DAVID_H306360_20240806.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BEARD_DAVID_H306360_20240806.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H306360 \n \n \nDAVID R. BEARD, \nEMPLOYEE                                                                                                                CLAIMANT \n \nLEVI TOWERS, INC.,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nWESCO INSURANCE COMPANY, \nINSURANCE CARRIER                                                                                        RESPONDENT  \n          \nAM TRUST NORTH AMERICA,  \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT                  \n \nOPINION FILED AUGUST 6, 2024 \n \nA hearing was held before Administrative Law Judge Chandra L. Black, in Garland County, Hot \nSpring, Arkansas. \n \nThe Claimant, pro se, did not appear at the hearing.        \n \nRespondents represented by the Honorable William C. Frye, Attorney at Law, North Little Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on July 26, 2024 , in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702(d), and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nThe record consists of the transcript of the July 26, 2024, hearing and the documents held \ntherein.  Explicitly, Commission’s Exhibit 1 includes six (5) total pages of correspondence and the \nreturn receipts for the certified mail sent via the United States Postal Service; and Commission’s \n\nBEARD-H306360 \n \n2 \n \nExhibit 2 is the form Workers’ Compensation – First Report of Injury or Illness, which has been \nblue-backed and made a part of the record for the July 26, 2024, hearing transcript. Additionally, \nRespondents’ Exhibit 1 consists of three (3) pages of various documents relating to this claim. \nNo testimony was taken. \n                                                            BACKGROUND \n On September 28, 2023, the Claimant’s former attorney filed with the Commission a claim \nfor Arkansas workers’ compensation benefits on behalf of the Claimant via a Form AR-C.  Per \nthis document, the Claimant alleged that he sustained injuries to his back, left elbow, right elbow, \nand other whole body during the course and in the scope of his employment with the respondent-\nemployer, on September 5, 2023.   \nSubsequently the Respondents filed a First Report of Injury or illness with the Commission \non  October  5,  2023,  accepting  the  claim  as  a  compensable  injury  to  the  Claimant’s  back \nlower/lumbar/sacral spine. \n Since the filing of the Form AR-C on September 28, 2023, a year ago, there has been no \naction  on  the  part  of  the  Claimant  to  prosecute  this  claim by  way  of  a  bona  fide  request  for  a \nhearing.  \nOn February  13,  2024, the Claimant’s attorney filed with the Commission a motion to \nwithdraw from representing the Claimant in this matter.  There being no objection to the motion \nfor the Claimant’s attorney to withdraw as counsel of record, the Full Commission entered an \nOrder on March 5, 2024, granting the motion.      \nStill, there was no action on the part of the Claimant to prosecute this claim by way of a \nbona fide request for a hearing or in any other manner.   \n\nBEARD-H306360 \n \n3 \n \nTherefore,  on or  about April 1,  2024, the  Respondents filed a letter Motion  to Dismiss, \nwith the Commission.  The Respondents mailed a copy of this pleading to the Claimant by way of \nthe United States Postal Service.         \n The  Commission  sent  a letter to  the Claimant on April 2, 2024, informing him of the \nRespondents’ motion, and a deadline of twenty (20) days, for filing a written response.  Said letter \nwas mailed to the Claimant by both first-class and certified mail.  Tracking information received \nby the Commission from the Postal Service shows that they were able to deliver this parcel of mail \nto the Claimant on April 6, 2024.  The letter sent by first-class mail has not been returned to the \nCommission.   \n As of late, there has not been any type of answer back from the Claimant.  \n On April 24, 2024, the Commission notified the parties per a Notice of Hearing that the \nmatter had been set for a hearing address the Respondents’ motion to dismiss.  Said hearing was \nscheduled for July 26, 2024, in Hot Springs, Arkansas. \nSaid  letter  was sent to  the  Claimant via first-class  and  certified  mail.  The  Commission \nreceived information from the Postal Service’s tracking system which shows that they delivered \nthe notice of hearing to the Claimant’s home on April 26, 2024.  The letter sent via first-class mail \nhas not been returned to the Commission.  Based on the foregoing, the evidence preponderates that \nthe Claimant received appropriate notice of the dismissal hearing.  \nNevertheless, the dismissal hearing was held as scheduled.  The Claimant failed to appear \nat the hearing.  Counsel for the Respondents appeared on their behalf.  He argued that the Claimant \nhas failed to prosecute his claim for workers’ compensation benefits.  He further noted that the \nClaimant has not taken any affirmative action to prosecute his claim in over six (6) months.  More \nspecifically, counsel noted that the Claimant has not taken any action to advance the prosecution \n\nBEARD-H306360 \n \n4 \n \nof his claim since  the  filing  of  the  Form  AR-C, which  was  done a  year ago.   Therefore, the \nRespondents’ attorney moved that this claim be dismissed pursuant to Ark. Code Ann. §11-9-702, \nand/or Commission Rule 099.13, with or without prejudice.  \nADJUDICATION \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable  in  the \nRespondents’ request for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor additional workers’ compensation benefits, but  he has  failed  to  do  so.  Specifically,  the \nClaimant  has  not  requested  a  hearing  or  otherwise made  any  effort to  prosecute  his claim for \nworkers’ compensation benefits since the filing of the Form AR-C, over almost a year ago; and \nnor has he resisted the motion for dismissal or even responded to the notices of this Commission \n\nBEARD-H306360 \n \n5 \n \ndespite having received delivery of them by the Postal Service.  Moreover, considering that the \nClaimant did not respond to the notices of this Commission and did not appear at the dismissal \nproceedings, I am convinced that the Claimant has abandoned claim.  \nHence, the evidence preponderates that the Claimant has failed to prosecute this claim for \nadditional workers’ compensation benefits.  Therefore, after consideration of the evidence before \nme, I find that the Respondents’ motion to dismiss for a lack of prosecution to be well taken.  I \nthus find that pursuant to Ark. Code Ann.§11-9-702 (d), and Commission Rule 099.13, this claim \nfor additional workers’ compensation benefits should  be  dismissed, without  prejudice, to  the \nrefiling of  it within  the limitation  period specified under the Arkansas Workers’ Compensation \nAct (the “Act”). \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704. \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since his former attorney filed the \nForm AR-C, which was done more than a year ago.  Hence, the evidence \npreponderates  that  the  Claimant  has  failed  to  prosecute  his claim  for \nworkers’ compensation benefits based upon the relevant provisions of the \nspecified  statute,  Ark.  Code  Ann. §11-9-702(d),  and  Rule  099.13  of  this \nCommission.       \n \n4. Appropriate notification of the dismissal hearing was had on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby granted, without prejudice, per Ark. Code Ann. §11-9-702 (d), and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n\nBEARD-H306360 \n \n6 \n \n                                           ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for additional workers’ compensation benefits.  This dismissal is pursuant \nto Ark. Code Ann. §11-9-702(d), and Commission Rule 099.13, without prejudice, to the refiling   \nof this claim within the limitation period specified under the Act. \n          IT IS SO ORDERED. \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":10754,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H306360 DAVID R. BEARD, EMPLOYEE CLAIMANT LEVI TOWERS, INC., EMPLOYER RESPONDENT WESCO INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT AM TRUST NORTH AMERICA, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 6, 2024 A hearing was held before Admin...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T22:49:45.874Z"},{"id":"alj-H308051-2024-08-06","awccNumber":"H308051","decisionDate":"2024-08-06","decisionYear":2024,"opinionType":"alj","claimantName":"Lee Jones","employerName":null,"title":"JONES VS. PHILLIP SCOTT EVERETTAWCC# H308051August 6, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Jones_Lee_H308051_20240806.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jones_Lee_H308051_20240806.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H308051 \n \nLEE ROBERT JONES, \nEMPLOYEE                                                                                                              CLAIMANT \n \nPHILLIP SCOTT EVERETT, \nEMPLOYER                                                                                                         RESPONDENT  \n \nSTONETRUST COMMERCIAL INS. CO., \nCARRIER/TPA                                                                                                    RESPONDENT  \n \nOPINION FILED AUGUST 6, 2024 \n \nHearing conducted on Thursday, August  2,  2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant represented himself, Pro Se, McCrory, Arkansas.  \n \nThe Respondents were represented by the Honorable Zackery F. Ryburn, Little Rock, Arkansas. \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on August 2, 2024, in Forrest City, Arkansas. No testimony was taken in \nthe  case.  Claimant, according to the Commission’s file, is Pro  Se. Admitted  into  evidence was \nRespondent  Exhibit  1, Form  AR-C,  and  Order  dismissing  Bryce  Brewer  as  attorney  of  record, \nconsisting of 2 pages. I have blue-backed Form AR-1, Form AR-2, a copy of Claimant’s letter to \nCommission received July 22, 2024, and  an email from Melanie Miller dated July 31, 2024, as \ndiscussed infra. \nThe record reflects on December 13, 2023, a Form AR-C was filed by then-attorney, Bryce \nBrewer, purporting that Claimant sustained injuries to his right shoulder, right arm, left arm, and \nchest when he was involved in a moving vehicle accident on September 3, 2022.  On December \n21, 2023, a Form AR-1 was filed stating the Respondent/Employer was made aware of Claimant’s  \n\nJONES, AWCC No. H308051 \n \n2 \n \ninjuries the same day it occurred, September 3, 2022. The form further states the Claimant worked \nas a laborer for Respondent/Employer.  On December 28, 2023, Respondents files a Form AR-2 \nthat  formally  controverted  the  claim.  Respondents’  counsel,  Zachary  Ryburn,  entered  his \nappearance on December 28, 2023. Respondents’ counsel, Jason Ryburn, entered his appearance \non January 30, 2024. Claimant’s counsel, Bryce Brewer, filed a Motion to Withdraw as Counsel \non May 7, 2024. The motion was granted on June 4, 2024. The Respondents next filed a Motion \nto Dismiss on June 13, 2024. The motion alleges, in short, a failure to prosecute by the Claimant. \nClaimant was sent notice of the Motion to Dismiss certified and regular First-Class Mail on June \n24, 2024. The Claimant responded to the motion in writing on July 22, 2024. The Claimant did not \nobject to the dismissal and wanted the Commission to close his case.  \nDespite receiving Claimant’s letter agreeing to the dismissal, the Claimant was mailed due \nand proper legal notice of the hearing date via the United States Postal Service (USPS), First Class \nCertified Mail, Return Receipt Requested, and  regular First-Class Mail on July 29, 2024, to his \naddress of record. The certified notice was not claimed by Claimant. However, the regular First-\nClass mail hearing notice was not returned to the Commission. The Claimant was also emailed the \nhearing notice on July 29, 2024. A phone call was made to Claimant by my assistant on July 31, \n2024, confirming that he received notice of the hearing. The Claimant confirmed that the hearing \ndate  is  August  2,  2024,  at  10:30  am,  in  Forrest  City,  Arkansas. The  hearing did  take place on \nAugust 2, 2024, and the Claimant was not present. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n\nJONES, AWCC No. H308051 \n \n3 \n \n \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the August 2, 2024, \nhearing. \n \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.   \n   \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on the Respondents’ Motion to Dismiss. Claimant did not claim the certified \nhearing notice sent to his address of record. However, the hearing notice sent U.S. First-Class mail, \nto  his  address  of  record,  was  not  returned  to  the  Commission.  The  Claimant  is  responsible  for \nkeeping the Commission updated on his current address. Thus, I find by the preponderance of the \nevidence that Claimant received reasonable notice of the Motion to Dismiss hearing.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution. The  Claimant  filed his Form AR-C on \nDecember 13, 2023. Since then, no bona fide request for a hearing has occurred. Therefore, I do \nfind that  the  Respondents  have  proven by  the  preponderance  of  the  evidence  that  Claimant  has \nfailed to prosecute his claim. Thus, Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, without prejudice. \n\nJONES, AWCC No. H308051 \n \n4 \n \n     \n  IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6083,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H308051 LEE ROBERT JONES, EMPLOYEE CLAIMANT PHILLIP SCOTT EVERETT, EMPLOYER RESPONDENT STONETRUST COMMERCIAL INS. CO., CARRIER/TPA RESPONDENT OPINION FILED AUGUST 6, 2024 Hearing conducted on Thursday, August 2, 2024, before the Arkansas Workers’ Compensation...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:49:47.945Z"},{"id":"alj-H207258-2024-08-06","awccNumber":"H207258","decisionDate":"2024-08-06","decisionYear":2024,"opinionType":"alj","claimantName":"Antwaun Perkins","employerName":null,"title":"PERKINS VS. CENTRAL MALONEY, INC.AWCC# H207258August 6, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PERKINS_ANTWAUN_H207258_20240806.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PERKINS_ANTWAUN_H207258_20240806.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H207258 \n \nANTWAUN R. PERKINS, EMPLOYEE        CLAIMANT \n \nCENTRAL MALONEY, INC., SELF-INSURED EMPLOYER        RESPONDENT \n    \nRISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR           RESPONDENT \n \n \nOPINION FILED 6 AUGUST 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 9 May 2024 in Pine Bluff, Arkansas. \n \nTolley & Brooks, Ms. Evelyn Brooks, for the claimant. \n \nFriday, Eldridge & Clark, Mr. Guy Wade, for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 9 May 2024 in Pine Bluff, Arkansas. The \nparties participated in a pre-hearing telephone conference on 27 February 2024. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on 5 March 2024. This claim involves a right shoulder injury that was accepted \nas compensable. \nThe Order stated the ISSUES TO BE LITIGATED: \n1. Whether the claimant is entitled to additional medical benefits for right shoulder \nsurgery and other past treatment. \n \n2. Whether the claimant is entitled to temporary total disability (TTD) benefits for \nthe dates between his last date worked and return to work after right shoulder \nsurgery. \n \n3. Whether the claimant is entitled to a controverted attorney’s fee. \n \nAll other issues were reserved. \n\nA. PERKINS- H207258 \n2 \n \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire \nResponses, were incorporated into the Prehearing Order.  \nPer the claimant’s CONTENTIONS, he is entitled to medical benefits associated with \nsurgery on his right shoulder and TTD benefits for the time off work for and around that \nsurgery. \nPer the respondents’ CONTENTIONS, the claimant was treated for an accepted \ninjury and released on 5 December 2022 at maximum medical improvement (MMI), full \nduty without restrictions. The claimant later sought unauthorized treatment for an injury \nnot related to work. That later treatment was for a degenerative condition that did not exist \nat the time of the testing or treatment for the compensable injury. \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on or about 27 September 2022, \nwhen the claimant sustained a compensable and accepted right shoulder injury. \n \n3.  The claimant earned an average weekly wage at the time relevant to this claim that \nentitled him to a TTD rate of $519 per week and a Permanent Partial Disability (PPD) \nrate of $389 per week. \n \nThe claimant was the sole WITNESS to testify at the hearing. The transcript \nreflects that Mr. Michael Bryant was sworn as a witness for the respondents at the \nbeginning of the proceedings, but he was not called to testify.  \nThe EVIDENCE presented consisted of the testimony along with Commission’s \nExhibit No 1 (the 5 March 2024 Prehearing Order), Claimant’s Exhibit No 1 (43 pages of \nmedical records), and Respondents’ Exhibit No 1 (45 pages of medical records). \n \n \n \n\nA. PERKINS- H207258 \n3 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the \nwitness, observing his demeanor, I make the following findings of fact and conclusions of \nlaw under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that he is entitled to \nadditional medical benefits related to his right shoulder surgery. \n \n4.  The claimant failed to prove by a preponderance of the evidence that he is entitled to \nTTD benefits for the time between his date last worked and return to work after \nright shoulder surgery. \n \n5. The claimant failed to prove by a preponderance of the evidence that he is entitled to \nan attorney’s fee. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \nClaimant Antwaun R. Perkins \nThe claimant began working for Respondent Central Moloney, Inc. on a permanent \nbasis in December of 2019, after starting there sometime earlier as a temporary employee. \nHe works as a coil winder, producing components for electrical transformers.  \nMr. Perkins testified that in the evening of 27 September 2022, he was moving a coil \nup onto a mandrel when it started to slip from the machine. When he caught it, he felt a \npain in his right shoulder. He reported his injury to his supervisor Mr. Michael Bryant, \ntelling him that he felt a “pull” in his shoulder. [TR at 16.] The respondents subsequently \nconnected the claimant with care for his injury from Dr. Charles Pearce. X-ray and MRI \nimaging was performed, and the claimant was ordered to participate in physical therapy. \n The claimant testified that he was placed on light-duty restrictions during the six \nweeks or so that he participated in physical therapy. Upon completion of physical therapy, \nhe returned to work without any restrictions. The claimant stated that his shoulder was not \n\nA. PERKINS- H207258 \n4 \n \n“a hundred percent” and that he experienced “a little pain,” but that he went on working \nwithout complaint. [TR at 19.] \n Then, the following September, the claimant explained, “One night when I raised \nthe hammer to hit [a coil], that’s when it – I had excruciating pain in that shoulder and it \nwas just a sharp pain. I almost dropped the hammer, and I went to the supervisor’s office \nand told him again. I said, ‘The shoulder’s giving me problems again.’” Id. The claimant was \nreturned to Dr. Pearce’s care; he stated that Dr. Pearce declined to offer further treatment \nafter ordering additional imaging.  \n The claimant testified that he remained off work and sought unauthorized care from \nhis physician Dr. Timmothy Reece, who ordered additional imaging and then referred him \non to see Drs. Roy Burrell and Gordon Birk. During his course of treatment, the claimant \nreceived at least one injection before undergoing shoulder surgery. He utilized Family \nMedical Leave Act time while out for his treatments until returning to work on the 15\nth\n or \n16\nth\n of January 2024. Since returning to work, his shoulder has been “a lot better, a lot \nbetter” and “not hurting nearly as bad.” [TR at 25.]  \n According to the claimant, his shoulder pain was the same in 2023 as it was in 2022: \nQ:  And was that the same location or a different location that was hurting \nwhen you lifted the hammer? \nA:  Same location. \nQ:  Has the pain been in the same area from the first coil injury in September \nof 2022? \nA:  Yes. \nQ:  And the joint, could you describe how it felt, how it bothered you? \nA:  I could raise my arm and I could feel like a ship [sic] pain shoot through it \nor certain kind of movements, I could feel the pain. \nQ:  Before the accident in September of 2022, had you had any trouble with \nthat right shoulder? \nA:  None. \nQ:  And between the time of that accident with the coil, and then, lifting the \nhammer in September of 2023, had you had any other injuries to that right \nshoulder? \nA:  No, I hadn’t. \n \n\nA. PERKINS- H207258 \n5 \n \n[TR at 26.] \n On cross examination, the claimant confirmed that he reported his injury in 2022 to \nhis supervisor and that he returned to his shift after they completed some paperwork. He \nconfirmed being directed to treatment after experiencing some trouble with his shoulder the \nnext day. He recalled Dr. Pearce ordering imaging and sending him for physical therapy. \nThe claimant acknowledged that Dr. Pearce found him to be at MMI on 5 December 2022, \nreturned him to work without restrictions, and assigned him a zero percent impairment \nrating. [TR at 32-33.] \n The claimant testified that in September of 2023, he was seen by Dr. Pearce again \nafter reporting an injury to his supervisor (again). He said that Dr. Pearce examined him, \nordered X-rays of his neck and both shoulders, and then stopped treating him (after the \nrespondents denied his claims for additional treatment). The claimant then sought \nunauthorized treatment with Dr. Reece and, eventually, other providers using his \nemployer’s group insurance plan. He recalled undergoing an arthroscopic shoulder \nprocedure in November of 2023 before Dr. Birk returned him to work without restrictions in \nthe middle of January 2024. While he recalled undergoing MRI scans of his right shoulder \nin October of 2022 and then again in October of 2023, the claimant said that he had not \nexamined those reports.  \n Having testified earlier that he still experienced pain after his full-duty release in \n2022, the claimant acknowledged that he did not make any complaints of shoulder pain or \ntrouble working in the time between his first return to work and then reporting another \ninjury in September of 2023. \nQ:  Okay. During the ten months that you worked between your release in \nDecember of 2022, until the complaints in September of 2023, did you ever \nreport to Mr. Bryant or to the plant nurse or anybody else that you were \nhaving problems with your right shoulder? \n\nA. PERKINS- H207258 \n6 \n \nA:  No, I didn’t, because I thought that it – that it—it wasn’t worth—I mean, \nbad enough to complain about it. \nQ:  So you didn’t tell anybody, didn’t report anything, and you continued to do \neverything that was required of your job during that time? \nA:  Right. \n \n[TR at 39-40.] Mr. Perkins concluded his testimony by confirming that he did not consider \nthe pain he felt in 2023 as a new injury.  \nMedical Records \n The claimant first sought treatment the day after his 27 September 2022 shoulder \ninjury. His X-rays were reported as normal. He was assessed with a shoulder strain, \nprescribed Naproxen for pain, and given no-lifting restrictions. [Cl. Ex. No 1 at 8-9.] \n At his 3 October 2022 return appointment, the claimant reported little \nimprovement. He was referred to physical therapy three times per week, for the next two \nweeks. Work restrictions remained in place, and a follow-up was scheduled for three weeks \nout. [Cl. Ex. No 1 at 15-16.] \n The claimant followed up on 18 October 2022 after completing his ordered physical \ntherapy; he stated that his range of motion was improved, but that his pain was worse. His \nwork restrictions remained while an MRI was ordered. [Cl. Ex. No 1 at 21-22.] \n The MRI report from 24 October 2022 states: \n CONCLUSION: \n1.  Moderate degenerative changes of the acromioclavicular joint. There is also \ncapsular edema, which could be reactive/degenerative in nature or indicative of a \nsuperimposed low-grade capsular injury. AC alignment is maintained. \n \n2.  Mild tendinopathy of the supraspinatus and infraspinatus tendons without \ndiscrete tear. \n \n[Cl. Ex. No 1 at 23.] \n On 31 October 2022, the claimant saw Dr. Pearce at UAMS. The MRI report was \nreviewed, and the clinic notes from that visit include an X-ray report stating, “FINDINGS \n\nA. PERKINS- H207258 \n7 \n \nAND IMPRESSION: Moderate AC Joint degeneration is seen.” [Cl. Ex. No 1 at 24.] He was \nprescribed a Medrol Dosepak and diclofenac. His work restrictions were continued, with the \nnote also stating that, “[w]e feel that his shoulder pain is related to an acute injury related \nto the on-the-job injury as described above.” He was expected to return in a month’s time. \n[Resp. Ex. No 1 at 25-26.] \n The claimant returned to care on 5 December 2022, and Dr. Pearce charted: \nIMPRESSION:  Essentially resolved right shoulder pain [with] possible \nunderlying mild AC joint arthrosis. \n \nPLAN: 1.  The patient has reached maximal medical improvement as of \ntoday’s date December 5, 2022. \n 2.  The patient can return to regular work duties without restriction. \n 3.  We will provide the patient with Thera-Bands for home use. \n 4.  Continue home stretching daily. \n5.  The patient has sustained a 0% permanent impairment set forth by \nthe American Medical Association, 4\nth\n Edition. \n 6.  Recheck as needed. \n \n[Resp. Ex. No 1 at 30.] \n After more than nine months without incident, the claimant reported pain to his \nsupervisor again in September of 2023. The claimant presented again to Dr. Pearce. The \nnote from that visit states: \nINJURY DATE:  Original injury date was September 27, 2022. \n \nHPI:  The patient was last seen by me on December 5, 2022 and released \nfrom care. He had essentially resolved symptoms. He tells me that he has had \nsome continued intermittent trouble and points to his trapezius as the area of \nconcern. No new injury. He does a lot [of] lifting at work. He works at Central \nMaloney. He does not have referred pain. He has been taking some ibuprofen \nas needed for pain. \n \nRIGHT SHOULDER:  Appears Normal. Mild generalized tenderness in his \ntrapezius. Full glenohumeral motion. Good strength all planes. No \ninstability. \n \nIMAGING:  X-rays of his right shoulder ordered and interpreted by me show \nno bony abnormality. X-rays of his cervical spine show... some narrowing at \nC5-C6. \n \n\nA. PERKINS- H207258 \n8 \n \nIMPRESSION:  Right shoulder girdle pain possibly cervical in nature. \n \nPLAN: 1.  The patient is not at maximal medical improvement. \n2.  Either MRI scan cervical spine or referral to 1 of our spine \nsurgeons for further evaluation and care. \n 3.  Continue regular work duties. \n  4.  Recheck with me as needed. \n5.  No change in impairment rating as it pertains to the shoulder. \n \n[Cl. Ex. No 1 at 30.] \n According to the claimant’s testimony, he then began seeking unauthorized \ntreatment and saw Dr. Roy Burrell on 10 October 2023, after undergoing an MRI scan on 3 \nOctober 2023. The note from the encounter with Dr. Burrell states that the claimant sought \nearlier care for a 2022 injury and that “it was not completely debilitating and [he returned \nto work] still having some pain in the shoulder. Patient states now it is back.” The radiology \nimpression from that visit included, “Degenerative change AC joint. Degenerative signal \nsuperior labrum. This is suspicious for SLAP tear. Lack of joint distention on this \nevaluation. No paralabral cyst. Mild tendinosis infraspinatus.” He was referred for a \npossible labral tear repair. [Cl. Ex. No 1 at 34.] \n The MRI report showed the following findings: \nAC Joint: There is mild degenerative spurring. Moderate soft tissue \nthickening and mild reactive marrow edema. No joint effusion. No fluid seen \nwithin subacromial/subdeltoid bursa. \n \nThe biceps tendon is intact. No joint distention. Degenerative signal superior \nlabrum is suspicious for SLAP tear. Consider further workup with \narthrogram as clinically warranted. No paralabral cyst. \n \nThe rotator cuff is intact. Mild tendinosis infraspinatus. No muscle edema or \natrophy. No marrow abnormality. \n \nIMPRESSION: Degenerative change AC joint. Degenerative signal superior \nlabrum. This is suspicious for SLAP tear. Lack of joint distention on this \nevaluation. No paralabral cyst. \n \nMild tendinosis infraspinatus. \n \n[Cl. Ex. No 1 at 32.] \n\nA. PERKINS- H207258 \n9 \n \nThe claimant then saw Dr. Reece on 16 October 2023, who noted that the claimant \nhad received an injection in his shoulder, but that it had only helped him temporarily. The \ndiagnosis plan states, “His right shoulder MRI shows AC joint DJD [degenerative joint \ndisease] and findings consistent with a labral tear. I have discussed options with him this is \nsomething this been ongoing now for quite some time he wants to go ahead and proceed \nwith right shoulder arthroscopy possible debridement of the versus repair of the labrum \nand then possible AC joint DCE.” [Cl. Ex. No 1 at 37.] An operative report dated 9 \nNovember 2023 records that some fraying around the labrum was addressed, but no tears \nwere observed. [Cl. Ex. No 1 at 39-40.] \nA clinic note dated 17 January 2024 provided for the claimant’s return to work \nwithout restrictions on 16 January 2024. [Cl. Ex. No 1 at 43.] \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted as fact. It is settled that the \nCommission, with the benefit of being in the presence of the witnesses and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 \n(1999).   \nA.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT HE IS ENTITLED TO ADDITIONAL MEDICAL BENEFITS. \n \nThe claimant is not entitled to additional medical benefits for his right shoulder \nsurgery. In September of 2022, he sustained a compensable workplace injury that was \naccepted by the respondents, who began providing benefits accordingly. He was treated for \na right shoulder strain, with imaging revealing some tendinopathy and moderate \ndegenerative changes. The claimant remained off work until December of 2023, when Dr. \nPearce released him at MMI to full duty, without restrictions, and without any permanent \n\nA. PERKINS- H207258 \n10 \n \nimpairment rating. The claimant then continued working without any report of difficulty \nuntil September of 2023, when he informed his supervisor that his shoulder was suddenly \n“giving [him] problems again.”  \nUpon examination by Dr. Pearce on 18 September 2023, the claimant was found to \nhave some tenderness, but his shoulder appeared normal, with good strength and no \ninstability. Dr. Pearce reviewed updated imaging and thought that the pain could be \nrelated to some observed cervical disc narrowing. He continued the claimant’s full-duty \nwork status without restrictions and indicated no change in the assigned (zero percent) \nimpairment rating for the claimant’s shoulder. A referral for pain generating from a \npossible spine issue was recommended. \nNearly a month later, on 10 October 2023, the claimant presented to another \nprovider for unauthorized care, where he reported several months of pain. He provided an \nMRI report from the previous week that showed some tendinosis and degenerative changes. \nThe radiologist was suspicious of a possible SLAP tear. The physician referred him to a \npractice partner for further evaluation of the possible SLAP tear. During the eventual \nsurgery, it was found that the claimant, in fact, had not suffered a tear, and the surgeon \nonly addressed the degenerative issues he observed during the procedure. \nAt issue is whether the claimant is entitled to benefits for the shoulder treatment \nreceived after his 18 September 2023 visit to Dr. Pearce. An employer is required to provide \ntreatment that may be reasonably necessary in connection with a compensable injury. ACA \n§ 11-9-508(a). Reasonable and necessary medical services may include those necessary to \ndiagnose a compensable injury, to reduce or alleviate symptoms, to maintain healing, or to \nprevent further deterioration of damage. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 \nS.W.2d 593 (1995). The employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary. Stone v. Dollar General Stores, 91 \n\nA. PERKINS- H207258 \n11 \n \nArk. App. 260, 209 S.W. 3d 445 (2005). In so doing, he must also establish that the \ntreatment is causally related to his stipulated compensable right shoulder injury of \nSeptember 2022. Pulaski Cty. Spec. Sch. Dist. v. Tenner, 2013 Ark. App. 569, 2013 WL \n5592602. \nI find Dr. Pearce’s December 2022 opinion placing the claimant at MMI at that time \nto be credible. Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002) (the \nCommission may accept or reject a medical opinion and determine its probative value). I \nfurther credit his findings in September of 2023, when he found the claimant’s shoulder to \nappear normal, continued his full-duty work without restrictions, and referred him for \npossible investigation of cervical issues creating his pain. Dr. Pearce did not assess a new \nshoulder injury or believe additional treatment was necessary, as related to the \ncompensable shoulder injury. Degenerative changes were consistent across the 2022 and \n2023 MRI findings, and the surgery that claimant ultimately underwent did not reveal a \ntear that he could relate back to his compensable injury. \nAccordingly, I do not find the course of treatment that the claimant undertook \naddressing the degenerative issues in his shoulder to be reasonably necessary treatment \nrelated to his compensable injury. His claim for medical benefits is, therefore, denied. \nB.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT HE IS ENTITLED TO TTD BENEFITS RELATED TO HIS \nTIME OFF FOR SHOULDER SURGERY. \n \nThe next issue in this litigation is whether the claimant is entitled to additional TTD \nbenefits associated with his time off from work for unauthorized treatment of his shoulder. \nA claimant must prove his entitlement to TTD benefits by a preponderance of the evidence. \nArk. Code Ann. § 11-9-705(a)(3). Preponderance of the evidence means the evidence having \ngreater weight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. \n269, 101 S.W.3d 252 (2003). For an unscheduled injury such as the one to the claimant’s \n\nA. PERKINS- H207258 \n12 \n \nshoulder injury, temporary total disability (TTD) is a period within the healing period in \nwhich the employee suffers a total incapacity to earn any wages. Ark. State Hwy. Dept. v. \nBreshears, 272 Ark. 244, 613 S.W.2d 392 (1981). A “healing period” is “that period for \nhealing of an injury resulting from an accident.” Ark. Code Ann. § 11-9-102(12). The healing \nperiod ends when the underlying condition has become stable and nothing further in the \nway of treatment will improve that condition. Mad Butcher, Inc. v. Partker, 4 Ark. App. 124, \n628 S.W.2d 582 (1982).  Whether a healing period has ended is a question of fact for the \nCommission. Dallas County Hospital v. Daniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001). \nHere, the claimant presented for reevaluation nine months after his release at MMI \nwithout restrictions. I credit Dr. Pearce’s opinion that the claimant’s healing period ended \nin December of 2023. The claimant failed to provide a preponderance of evidence in support \nof his claim that he either remained in or started a new healing period relating to his \ncompensable shoulder injury after December of 2023. He is not entitled to benefits \nassociated with his time off from work for treatment of his degenerative shoulder condition. \nHis claim for TTD benefits is, therefore, denied. \nC.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT HE IS ENTITLED TO AN ATTORNEY’S FEE. \n \nBecause the claimant failed to meet his burden on the issue above, he is not entitled \nto an attorney’s fee. \nV.  ORDER \n     Consistent with the Findings of Fact and Conclusions of Law stated above, this claim for \nadditional benefits is denied and dismissed.  \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":22949,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H207258 ANTWAUN R. PERKINS, EMPLOYEE CLAIMANT CENTRAL MALONEY, INC., SELF-INSURED EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED 6 AUGUST 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:4","denied:8"],"injuryKeywords":["shoulder","neck","strain","cervical","back","rotator cuff"],"fetchedAt":"2026-05-19T22:49:50.105Z"},{"id":"alj-H203239-2024-08-06","awccNumber":"H203239","decisionDate":"2024-08-06","decisionYear":2024,"opinionType":"alj","claimantName":"James Smith","employerName":null,"title":"SMITH VS. BULL MOTOR CO.AWCC# H203239August 6, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Smith_James_H203239_20240806.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Smith_James_H203239_20240806.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203239 \n \nJAMES J. SMITH, \nEMPLOYEE                                                                                                              CLAIMANT \n \nBULL MOTOR CO., \nEMPLOYER                                                                                                         RESPONDENT  \n \nCENTRAL AR. AUTO DEALERS SIF., \nCARRIER/TPA                                                                                                    RESPONDENT  \n \nRISK MANAGEMENT RESOURCES, \nTPA                                                                                                                        RESPONDENT  \n \nOPINION FILED AUGUST 6, 2024 \n \nHearing conducted on Thursday, August  2,  2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant represented himself, Pro Se, Wheatley, Arkansas.  \n \nThe Respondents were represented by the Honorable Melissa Wood, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on August 2, 2024, in Forrest City, Arkansas. No testimony was taken in \nthe  case.  Claimant, according to the Commission’s file, is Pro  Se. Admitted  into  evidence was \nRespondent Exhibit 1, pleadings, correspondence, consisting of 10 pages. I have also blue-backed \nForm AR-1, hearing notice for August 2, 2024, and Melanie Miller email dated June 20, 2024, as \ndiscussed infra. \nThe  record  reflects on April  29,  2022,  a  Form  AR-C was  filed purporting  that  Claimant \nsustained injuries to his right shoulder and upper arm while unloading a transmission from a truck. \nThe tailgate of the truck  failed, during the unloading, causing the transmission to drop onto the \n\nSMITH, AWCC No. H203239 \n \n2 \n \nright shoulder and upper arm. On May 9, 2022, a Form AR-1 was filed alleging the injury took \nplace   December   28,   2020.   The   form   further   states   that   the   incident   was   reported   to \nRespondent/Employer   on   May   2,   2022.   The   Claimant   worked   as   a   service   tech   for \nRespondent/Employer.    On May  9,  2022,  and  again  on February  15,  2023, Respondents  filed a \nForm AR-2 and each form did not state a reason for controverting the claim.  Respondents, in a \nletter  dated  December  12,  2022,  agreed  to  pay  Claimant  5%  to  the  body  based  on his  treating \nphysicians (Dr. Swymm’s) report. Respondents filed a Motion to Dismiss, via letter, on October \n4, 2023. The motion alleges, in short, a failure to prosecute by the Claimant. Claimant was sent \nnotice of  the  Motion  to  Dismiss certified and  regular  First-Class  Mail on October  9,  2023.  The \nClaimant responded to the motion on October 30, 2023. The Claimant objected to the dismissal on \nthe  grounds  that  he  wanted  to  reach  maximum  medical  improvement  and  his  permanent  partial \ndisability  rating  has  been  established.  Claimant  further  alleges  his  possible  need  for  wage  loss \nbenefits. Respondents withdrew their motion to dismiss and, the Claimant his request for a hearing, \nand the file was returned to general files on November 6, 2023.  \nRespondents  next  filed  another  Motion  to  Dismiss  through  attorney,  Melissa  Wood,  for \nfailure to prosecute his claim on April 29, 2024. This motion alleges the same as the first, failure \nto prosecute. The notice sent out both certified and regular U.S. First-Class Mail on May 29, 2024. \nClaimant did not claim the certified notice of the Motion to Dismiss but the notice sent regular \nU.S. First Class mail was not returned to the Commission. The Claimant did not respond to the \nMotion to Dismiss in writing.  \nDespite granting the waiver and in accordance with applicable Arkansas law, the Claimant \nwas mailed due  and proper legal notice of the hearing date via the United States Postal Service \n(USPS),  First  Class  Certified  Mail,  Return  Receipt  Requested, and  regular  First-Class  Mail on \n\nSMITH, AWCC No. H203239 \n \n3 \n \nJune  20,  2024,  to  his  address  of  record.  The  certified  notice  was not  claimed  by  Claimant. \nHowever, the  regular  First-Class  mail hearing notice  was not returned to  the  Commission. The \nhearing took place on August 2, 2024. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the August 2, 2024, \nhearing. \n \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on the Respondents’ Motion to Dismiss. Claimant did not claim the certified \nhearing notice sent to his address of record. However, the hearing notice sent U.S. First-Class mail, \nto  his  address  of  record,  was  not  returned  to  the  Commission.  The  Claimant  is  responsible  for \nkeeping the Commission updated on his current address. Thus, I find by the preponderance of the \nevidence that Claimant received reasonable notice of the Motion to Dismiss hearing.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant filed his Form AR-C on April \n29,  2022. Since returning Claimant’s file to general files on November 6, 2023, no bona  fide \n\nSMITH, AWCC No. H203239 \n \n4 \n \nrequest for a hearing has occurred. Therefore, I do find that the Respondents have proven by the \npreponderance of the evidence that Claimant has failed to prosecute his claim. Thus, Respondents’ \nMotion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, without prejudice. \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6768,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H203239 JAMES J. SMITH, EMPLOYEE CLAIMANT BULL MOTOR CO., EMPLOYER RESPONDENT CENTRAL AR. AUTO DEALERS SIF., CARRIER/TPA RESPONDENT RISK MANAGEMENT RESOURCES, TPA RESPONDENT OPINION FILED AUGUST 6, 2024 Hearing conducted on Thursday, August 2, 2024, before th...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:49:52.188Z"},{"id":"alj-H400463-2024-08-02","awccNumber":"H400463","decisionDate":"2024-08-02","decisionYear":2024,"opinionType":"alj","claimantName":"Jimmy Bruce","employerName":null,"title":"BRUCE VS. CITY OF MARMADUKEAWCC# H400463August 2, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Bruce_Jimmy_H400463_20240802.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bruce_Jimmy_H400463_20240802.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H400463 \n \n \nJIMMY D. BRUCE, EMPLOYEE CLAIMANT \n \nCITY OF MARMADUKE, \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. MUN. LEAGUE, \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED AUGUST 2, 2024 \n \nHearing  before Chief Administrative  Law  O.  Milton  Fine  II  on June  21,  2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented by Mr. Scott Hunter, Jr., Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Ms. Mary K. Edwards, Attorney at Law, North Little Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On June   21,   2024,   the   above-captioned   claim   was   heard   in Jonesboro, \nArkansas.  A pre-hearing conference took place on April 1, 2024.  The Prehearing Order \nentered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection  as \nCommission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations  and \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit  1.    With  the  amendment  of Stipulation  No.  4,  they  are  the  following,  which  I \naccept: \n\nBRUCE – H400463 \n \n2 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The  employee/self-insured  employer/third-party  administrator  relationship \nexisted  among  the  parties  on  January  14,  2024,  and  at  all  other  relevant \ntimes. \n3. Respondents have controverted this claim in its entirety. \n4. Claimant’s average weekly wage of $256.00 entitles him to compensation \nrates of $171.00/$154.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.   After  an  amendment  of  Issue  No.  1  to  correct  a  typographical  error,  the  following \nwere litigated: \n1. Whether  Claimant  sustained  a  compensable  injury  to  his  right lower \nextremity by specific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \n\nBRUCE – H400463 \n \n3 \nContentions \n The respective contentions of the parties are as follows: \n Claimant: \n1. Claimant  contends  that he  was  in  the  process  of  transferring  his  medical \nbag,  clipboard,  and  body  armor  into  his  personal  vehicle  before  going \ninside  to  download  his  body  camera  footage  and  file  end-of-the-day \npaperwork when he slipped on ice, falling and breaking his right fibula. \nRespondents: \n1. Respondents contend that Claimant cannot prove by a preponderance of \nthe  evidence  that  he  sustained  a  compensable  injury  within  the  meaning \nof the Arkansas Workers’ Compensation Act.  On  January  14,  2024,  he \nhad clocked out of work, and while he was walking from the building to his \npersonal vehicle, he slipped and fell on ice. \n2. Respondents  contend  that  Claimant  was  not  performing  employment \nservices at the time the incident occurred. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \ndeposition  transcripts,  and  other  matters  properly  before  the  Commission,  and  having \nhad  an  opportunity  to  hear  the  testimony  of  the  witnesses  and  to  observe  their \ndemeanor,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n\nBRUCE – H400463 \n \n4 \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a preponderance  of  the  evidence that  he \nsustained a  compensable  injury  to his right  lower  extremity by  specific \nincident. \n4. Because of the above finding, the remaining issues—whether Claimant is \nentitled  to  reasonable  and  necessary  medical  treatment,  temporary  total \ndisability benefits and a controverted attorney’s fee—are moot and will not \nbe addressed. \nCASE IN CHIEF \nSummary of Evidence \n The witnesses at the hearing were Claimant and Captain Scott Chambers. \n In  addition  to  the Prehearing Order  discussed  above,  admitted  into  evidence  in \nthis case were Claimant’s Exhibit 1, non-medical records, consisting of one index page \nand 12 numbered  pages  thereafter; Respondents’  Exhibit  1,  non-medical  records, \nconsisting of one index page and 17 numbered pages thereafter; Respondents’ Exhibit \n2, the  transcript  of  the  deposition  of  Claimant  taken  on  April  1,  2024, consisting  of 46 \nnumbered pages plus an eight-page index; and Respondents’ Exhibit 3, a thumb drive \ncontaining body cam footage of Claimant taken on January 14, 2024. \n\nBRUCE – H400463 \n \n5 \n In  addition,  I  have  blue-backed  to  the  record  the  post-hearing  letter  briefs  of \nClaimant  and  Respondents,  filed  on  July  12,  2024,  and consisting  of two  and  three \npages, respectively. \nAdjudication \nA. Compensability \n Introduction.  In this action, Claimant has alleged that he suffered a compensable \ninjury by specific incident to his right lower extremity on January 14, 2024, when he fell \nin the parking lot outside the entrance of his employer, the Police Department of the City \nof  Marmaduke.   Respondents,  in  turn,  have argued  that  at  the  time of  his fall,  he  was \nnot performing employment services–rendering said injury non-compensable. \n Discussion.  Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I \nfind applies to the analysis of Claimant’s alleged injury, defines “compensable injury”: \nAn accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \nmedical services or results in disability or death.  An injury is “accidental” \nonly  if  it  is  caused  by  a  specific  incident  and  is  identifiable  by  time  and \nplace of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe element “arising out of . . . [the] employment” relates to the causal connection \nbetween the claimant’s injury and his employment.  City of El Dorado v. Sartor, 21 Ark. \nApp. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n\nBRUCE – H400463 \n \n6 \n“when a causal connection between work conditions and the injury is apparent to the \nrational mind.”  Id. \n If the party seeking to prove compensability fails to establish by a preponderance \nof  the  evidence any of  the  requirements  for  establishing  such,  compensation  must  be \ndenied.   Mikel  v.  Engineered  Specialty  Plastics,  56  Ark.  App.  126,  938  S.W.2d  876 \n(1997).    This  standard  means  the  evidence  having  greater  weight  or  convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., \n212 Ark. 491, 206 S.W.2d 442 (1947). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., \n72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.  Id. \n In this case, the evidence shows that as a result of his January 14, 2024, fall in \nthe parking lot at the Marmaduke Police Department, Claimant suffered an injury to his \nright lower extremity.  As Respondents in their post-hearing brief point out, Claimant did \nnot offer into evidence a compilation of the medical records pertaining to the treatment \nthat  he  described  undergoing—including  placement  in  a  boot—in  connection  with  his \nalleged leg injury. \n\nBRUCE – H400463 \n \n7 \n But Respondents are incorrect in asserting that the evidence at bar is devoid of \nobjective findings.  The Marmaduke Fire/Rescue report of their response to Claimant’s \nfall, authored by Marcus Vowell, reads in pertinent part: \nCalled to city hall for ankle fx [fracture].  Pt fell on ice and thinks ankle is \nbroken.  Swelling noted[.]  Splint applied.  CMS intact[.] \n \n(Emphasis  added)   Captain  Scott  Chambers  of the  Marmaduke  Police  Department, \nClaimant’s supervisor, testified that Vowell “is a fireman and—he’s a volunteer fireman \nfor  the  fire  department  and  a  paramedic.    He  was  a  full-time paramedic.”  Vowell is a \nlicensed paramedic, according to Chambers.  I credit this testimony. \n The  report  by  the  paramedic  is  clearly  a  medical  record,  prepared  by  treating \npersonnel who dealt with Claimant in the aftermath of his fall, and contains an objective \nfinding in the form of swelling of the right lower extremity.  See Ellis v. J.D. & Billy Hines \nTrucking, Inc., 104 Ark. App. 118, 289 S.W.3d 497 (2008). \n The  incident  that  caused  the lower  extremity injury is  identifiable  by  time  and \nplace of occurrence:  Claimant’s slipping/falling on the snow-covered gravel parking lot \nof the police  department at  approximately 4:35 p.m.  on January  14,  2024.   Claimant’s \ntestimony  as  to  the time  and  location of  this  fall was  corroborated  by (1) Officer  C.J. \nIsom, whom  Claimant  telephoned  for  help  and whose  report thereon  was  written  that \nsame day and is part of the documentary evidence; and (2) the reports in evidence that \nare related to the ambulance that was dispatched to Claimant’s location.  Moreover, the \nlower  extremity  injury clearly caused  internal  or  external  physical  harm  to Claimant’s \nbody and required medical services. \n\nBRUCE – H400463 \n \n8 \n The  only  element  of  compensability  remaining  is  whether  the injury  at  issue \narose out of and in the course of Claimant’s employment; i.e., while he was performing \nemployment services for the City of Marmaduke.  In Hudak-Lee v. Baxter County Reg. \nHosp., 2011 Ark. 31, 378 S.W.3d 77, the Arkansas Supreme Court stated: \nIn  order  for  an  accidental  injury  to  be  compensable,  it  must  arise  out  of \nand  in  the  course  of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i) \n(Supp.  2009).    A  compensable  injury  does  not  include  an  injury  that  is \ninflicted upon  the employee at  a  time  when employment  services are  not \nbeing performed. Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2009).  The \nphrase “in the course of employment” and the term “employment services” \nare not defined in the Workers' Compensation Act.  Texarkana Sch. Dist. \nv. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court \nto  define  these  terms  in  a  manner  that  neither  broadens  nor  narrows  the \nscope of the Act.  Id. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \nthe  course  and  scope  of  employment.  Jivan  v.  Econ.  Inn  &  Suites,  370 \nArk. 414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred \nwithin  the  time  and  space  boundaries  of  the  employment,  when  the \nemployee  was  carrying  out  the  employer's  purpose  or  advancing  the \nemployer's interest, directly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 \nS.W.3d  57,  we  stated  that  where  it  was  clear  that  the  injury  occurred \noutside the time and space boundaries of employment, the critical inquiry \nis  whether  the  interests  of  the  employer  were  being  directly  or  indirectly \nadvanced by the employee at the time of the injury.  Moreover, the issue \nof  whether  an  employee  was  performing  employment  services  within  the \ncourse of employment depends on the particular facts and circumstances \nof each case.  Id. \n \n In  analyzing  this  issue  under Hudak-Lee, supra,  Claimant’s  injury arguably \noccurred outside  the  time  boundaries  of  his employment.   The fall  took  place at \napproximately  4:35  p.m.    Per  the  Command  Log  for  Claimant  that  is  in  evidence,  his \n\nBRUCE – H400463 \n \n9 \nstatus on January 14, 2024, was “Off Duty” as of 4:25:49 that day. \n The   fall also arguably took   place   outside the   space   boundaries   of   his \nemployment:  in the parking lot of the police station.  The evidence does not show that \nhe had any duties to perform out there.  Claimant fell next to his own pickup truck, not \nnear his patrol vehicle. \n But  as  the Hudak-Lee Court  noted,  even  if  injury  did  occur  outside  the  time \nand/or space boundaries of the claimant’s employment, “the critical inquiry is whether \nthe interests of the employer were being directly or indirectly advanced by the employee \nat  the  time  of  the  injury.”    (Emphasis  added)   See  also  Wood  v.  Wendy’s  Old \nFashioned Hamburgers, 2010 Ark. App. 307, 374 S.W.3d 785. \n Claimant  has  alleged  that  at  the  time  of  his  fall,  he  was  attempting  to  retrieve \nfrom his vehicle the body cam that he used as part of his law enforcement work for the \ncity,  in  order  to  download  its  footage.   In Claimant’s post-hearing  brief,  his  counsel \nwrote: \nAfter logging “off duty,” Mr. Bruce took his body armor vest, body cam \nincluded,  to  his  personal  vehicle  and  was  returning  into  the  building  to \nfinish  the  paperwork  and  upload  the  footage  from  the  day.    During  this \nprocess,  he  realized  that  he  had  left  his  body  cam  on  his  vest  and  he \nbegan   to   return   to   his   vehicle   to   obtain   it.      It   was   at   this   time, \napproximately 4:35 p.m., that he slipped on the snow and injured himself. \n \n But  unfortunately,  this  version  of  the  events  of  that  afternoon  does  not  line  up \nwith the three versions Claimant himself has given that are in evidence:  (1) his unsworn \nreport; (2) his April 1, 2024, deposition; and (3) his hearing testimony.  In each of these \nrecounts, Claimant stated that at approximately 4:25 p.m., he parked his patrol vehicle \n\nBRUCE – H400463 \n \n10 \nand took  his gear  (including  his  body  armor)  to his  personal  vehicle.    In each  of  these \nretellings, he related that he then went inside the police station to do his paperwork and \nto transfer his body cam videos, but returned to his vehicle around 4:35 p.m. to retrieve \nthe  body  cam—slipping  and  falling  as  he  neared  his  truck.   Moreover,  Claimant \nacknowledged  that  he  had  completed any  paperwork  by this  point.   Consequently, the \nbrief cannot be given serious consideration. \n Further complicating this matter is the fact that while Claimant was consistent in \nrecounting this incident, which normally would bolster his credibility, his version of what \nhappened  late  in  the  afternoon  of  January  14,  2024,  is contradicted  by  the  body  cam \nfootage in evidence.  The footage shows that after he parked his Chevrolet Tahoe patrol \nvehicle  at  4:15 p.m.,  he  exited it and began to  pack  up his  gear and  paperwork in the \nfront  passenger  side  of  the  vehicle.    He paused from  doing  this  to step  outside  the \ngarage to deliver an insulator to a fellow officer who was in a Chevrolet Silverado police \nvehicle.   Thereafter,  he  resumed packing  up  his  gear.    At  4:21,  he took his  gear  and \npaperwork  from  the  vehicle  and  again  conversed with  the  other  officer.    He told the \nofficer that he had to go inside the police station to turn in his time sheet.  Claimant and \nthe  officer  entered the  station.    At  4:23  p.m.,  Claimant began unloading  his  gear  and \npaperwork at his workstation.  As part of this, he removed his body armor—to which the \nstill-running body cam was attached—and placed it in an adjacent chair.  Because the \ncamera was  facing  the  back  of  the  chair,  the  viewer  cannot  view  his  activities  at  this \npoint.   He  notified  the  dispatcher  at  4:25  p.m.  that  he was checking  out.    This  is \nconfirmed  by  the  Command  Log  in  evidence,  which  reflects  that  his  status was “Off \n\nBRUCE – H400463 \n \n11 \nDuty” as of 4:25:49.  At 4:27, Claimant told the  other  officer  that  he  forgot  to  get  the \nending mileage off his patrol vehicle; audio reflects that he left the room, supposedly to \nreturn to the vehicle to retrieve it.  He returned with the odometer reading, 103,777, at \n4:28.  The other officer announced that he was leaving to go on patrol.  Claimant replied \nto him at 4:29:  “I’ll come flying through there in a minute.”  After the officer finally left at \n4:31, sounds of paper shuffling and of a copier/scanner can be heard on the recording.  \nAt 4:33, Claimant zipped up his satchel, and carried it, a Styrofoam container, and the \nbody armor as he departed the police station.  He exited a set of double doors at 4:34.  \nWhen he did this, his personal truck came into view, sitting in the snow-covered parking \nlot.  Claimant used his key fob to remote-start the vehicle.  He stowed the items in the \nfront   passenger   compartment.      This   includes   the   body   armor.      Because   of   its \npositioning, the windshield of the truck stayed in view for the remainder of the footage.  \nClaimant closed the door at 4:34:57.  According to the undisputed evidence, he slipped \nand  fell  shortly  thereafter,  at  approximately  4:35  p.m.  At  4:39  p.m.  his  vehicle \nautomatically shuts off.\n1\n \n Again,   it   must   be   determined   whether Claimant was   directly   or   indirectly \nadvancing  his  employer’s  interests  at  the  time  the  fall  took  place.   He has  stated \nrepeatedly  that  at  the  time  of  his  fall  and  resulting  leg  injury,  he  was  returning  to  the \n \n \n1\nIt  bears  mentioning  that  I  cannot  find,  based  on  the  evidence,  that  Claimant’s  remote-\nstarting his vehicle shows that he intended to allow it to warm up while he returned to the station \nto  complete  any  work-related  tasks.    First,  he  did  not  testify  that  this  was  his  purpose  in  doing \nthis.    Second,  because  the  video  footage  does  not  show  that  Claimant  locked  his  now-running \nvehicle, it is not logical to assume that his intent was anything other than to depart the station—\nwhich, again, is what he told the other office was his plan. \n\nBRUCE – H400463 \n \n12 \ntruck  to  retrieve  the  body  cam  in  order  to  download  the  footage.    Captain  Chambers \nconfirmed  in  his  testimony  that  Claimant  did  not  perform  this  function  on  January  14, \n2024; he returned to the police station at a later time to do this.  But I cannot find that \nthis  was  his  intent,  in  light  of  the  footage.    Just  seconds prior  to the  fall,  Claimant  had \ndeliberately placed  the  body  armor  and  body  cam  into  his  vehicle;  he  did  not,  as  he \ntestified, place it there earlier, go into the police station, and then return to the truck to \nretrieve  it.  Based  on  the  body  cam  footage  that  is  in  evidence,  I  am simply unable  to \ncredit Claimant’s testimony. \n Obviously trying to tie his theory of the case to that footage, Claimant’s counsel \nhas posited that Claimant basically turned on his heels after closing the truck door and \nreturned  to get  the  body  cam.   But again, this was not Claimant’s testimony.  There is \nno  evidence  before  the  Commission  that  this  was  what in  fact happened.    For  me  to \naccept that  and  find  that this  was  what  occurred  at  4:35  p.m.  on  January  14,  2024, \nwould require that I engage in speculation and conjecture.  But I am not permitted to do \nthis.   See  Dena  Construction  Co.  v.  Herndon,  264  Ark.  791,  796,  575  S.W.2d  155 \n(1979). \n In  making  this  ruling,  I  am  mindful  of  the  testimony  of  Captain  Chambers  that \nofficers  are  supposed  to  download  their  body  cam  footage  before  leaving  “in  case \nthere’s a complaint for any reason . . . .”  Nevertheless, the evidence as set forth above \ndoes  not  support  the  finding  that  Claimant  intended  to  do  this—which,  again, he \nadmitted  was  the  only  duty  he  had  left  to  perform—after  he  closed  the  door  of  his \nvehicle at 4:35 p.m. that day. \n\nBRUCE – H400463 \n \n13 \n In sum, the preponderance of the credible evidence does not show that Claimant \nwas advancing the interests of the City of Marmaduke, directly or indirectly, at the time \nof  his  fall.    The “going and coming rule” generally forecloses recovery for an injury \nsustained  while  the  employee  is  going  to  or  returning  from  his  place  of  employment \nbecause  an  employee  is  generally  not  acting  within  the  course  of  employment  when \ntraveling  to  and from  the  workplace.   Olsten  Kimberly  Quality  Care  v.  Pettey,  328 Ark. \n381,  944  S.W.2d  524  (1997).  Claimant  has  not  shown  that  his  right  lower  extremity \ninjury  arose  out  of  and  in  the  course  of  his  employment.    Thus,  due  to  his  failure  to \nestablish  this  particular  element  of  compensability, he has  not met  his  burden  of proof \nand cannot prevail in this matter. \nB. Remaining Issues \n Because of the foregoing, the remaining issues—whether Claimant is entitled to \nreasonable  and necessary  medical  treatment,  temporary total  disability  benefits,  and a \ncontroverted attorney’s fee—are moot and will not be addressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":22527,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H400463 JIMMY D. BRUCE, EMPLOYEE CLAIMANT CITY OF MARMADUKE, SELF-INSURED EMPLOYER RESPONDENT ARK. MUN. LEAGUE, THIRD-PARTY ADM’R RESPONDENT OPINION FILED AUGUST 2, 2024 Hearing before Chief Administrative Law O. Milton Fine II on June 21, 2024, in Jonesboro,...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1","denied:1"],"injuryKeywords":["ankle","fracture","back"],"fetchedAt":"2026-05-19T22:49:43.581Z"},{"id":"alj-H300871-2024-08-01","awccNumber":"H300871","decisionDate":"2024-08-01","decisionYear":2024,"opinionType":"alj","claimantName":"John Cannon","employerName":null,"title":"CANNON VS. LITTLE ROCK SCH. DIST.AWCC# H300871August 1, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Cannon_John_H300871_20240801.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Cannon_John_H300871_20240801.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300871 \n \n \nJOHN E. CANNON, EMPLOYEE CLAIMANT \n \nLITTLE ROCK SCH. DIST., \nSELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCH. BDS. ASSN., \nTHIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED AUGUST 1, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on August 1, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se. \n \nRespondents represented  by  Mr. Jarrod  S.  Parrish,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on August  1,  2024, in \nLittle Rock, Arkansas.  Claimant, who is pro se, appeared at the hearing and gave \ntestimony.  Admitted into evidence were Commission Exhibit 1 and Respondents’ \nExhibit 1, pleadings, correspondence and forms related to this claim, consisting of \n31 pages and one index page/nine numbered pages thereafter, respectively. \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed on February 8, 2023, Claimant \npurportedly suffered an injury to his  lower  back at  work  on January  24,  2023, \nwhen he slipped  and  fell  on  a  freshly-mopped  bathroom  floor.  According  to the \n\nCANNON – H300871 \n \n2 \n \ninitial  and  amended Forms AR-2 that  were filed on February  10  and  13,  2023, \nRespondents accepted the   claim and paid indemnity   and  medical benefits \npursuant thereto. \n Through  then-counsel  Gregory  R.  Giles, Claimant filed  a  Form  AR-C on \nApril 20, 2023.  Therein, he alleged that he was entitled to the full range of initial \nand additional benefits as a result of the alleged lower back injury.  Accompanying \nthis filing was a letter from Claimant’s counsel to the Commission, requesting that \nhis  client  be  awarded  temporary  total  disability  benefits  from April  7,  2023,  to  a \ndate  yet  to  be  determined.    Respondents  responded  to  this  correspondence  on \nApril  21,  2023,  reiterating  that  they  had  accepted  the  claim  and  were  paying \nindemnity as well as medical benefits thereon. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nFebruary  7,  2024.    On  that  date,  Respondents  filed  their  first Motion to  Dismiss, \nasking  for  dismissal  of  the  claim  under  AWCC  R.  099.13  and  Ark.  Code  Ann.       \n§ 11-9-702 (Repl. 2012) due to Claimant’s alleged failure to seek “any type of \nbona fide hearing before the Workers’ Compensation Commission over the last \nsix months.”  My office wrote Claimant’s counsel on February 9, 2024, asking for a \nresponse to the motion within 20 days.  He responded via letter on February 14, \n2024,  objecting  to  dismissal  and  requesting  a  hearing.    I  elected  to  take  the \nmotion under advisement, and issued prehearing questionnaires to the parties on \nFebruary  16,  2024.    However,  they informed  my  office  that  they  were  willing  to \n\nCANNON – H300871 \n \n3 \n \nmediate.    For  that  reason,  on February  27,  2024,  the  file  was  transferred  to  the \nLegal Advisor Division.  It was assigned to a legal advisor on February 29, 2024.  \nAfter Respondents’ co-counsel inquired as to the status of the mediation on April \n4, 2024, a Notice of Mediation Conference was issued the next day, setting it for \nApril  30,  2024.  But  on  April  17,  2024,  Claimant’s  counsel  emailed  the  legal \nadvisor,  indicating  that  the  mediation  was  no  longer  needed,  and that the  file \ncould be returned to the Commission’s general files.  This was granted. \n On April  26,  2024, Giles moved  to  withdraw  from his  representation  of \nClaimant.  In an order entered on May 14, 2024, the Full Commission granted the \nmotion under AWCC Advisory 2003-2. \n On May  31,  2024, Respondents filed  the  instant  motion, again asking  for \ndismissal  of  the  claim under  AWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702 \n(Repl.  2012) on  the  same  basis  as  stated  in  initial  motion.    My  office wrote \nClaimant on June 5,  2024,  asking  for  a  response  to  the  motion within  20  days.  \nThe  letter  was  sent  by  first  class and  certified mail  to the Little  Rock address of \nClaimant listed  in  the  file and on his  Form  AR-C.   Claimant failed  to claim the \ncertified letter, and it was returned to the Commission, undelivered, on August 1, \n2024;  but the first-class  letter  was not  returned to  the  Commission.   Regardless, \nno response from Claimant to the motion was forthcoming.  On June 27, 2024, a \nhearing on the Motion to Dismiss was scheduled for August 1, 2024, at 9:30 a.m. \nat the Commission in Little Rock.  The notice was sent to Claimant via first-class \n\nCANNON – H300871 \n \n4 \n \nand  certified  mail to  the  same  address as  before.   In  this  instance, Claimant \nsigned  for the  certified  letter on  July  1,  2024;  and the first-class  letter was not \nreturned. \n The hearing on the Motion to Dismiss proceeded as scheduled on August \n1, 2024.  Respondents appeared through counsel and argued for dismissal under \nthe aforementioned authorities.  Claimant likewise appeared.  He testified that he \ndoes  not feel that it is “worth it” to continue with his claim, and that he does not \nobject  to  dismissal  of it.   In  so doing, he  stated  that  he  was  aware that  if  it  were \ndismissed  without  prejudice,  he  could  re-file  it,  provided  that  the  statute  of \nlimitations did not operate as a bar. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters properly before the Commission, and having had the opportunity to hear \nthe  testimony  of  Claimant  and  determine  his  credibility, the  following Findings  of \nFact and Conclusions of Law are hereby made in accordance with Ark. Code Ann. \n§ 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n\nCANNON – H300871 \n \n5 \n \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for additional \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because (a) he has taken no further action \n\nCANNON – H300871 \n \n6 \n \nin pursuit of it since the filing of his Form AR-C on April 20, 2023, and (b) he does \nnot  intend  to  pursue  it  any  further.   Thus,  the  evidence  preponderates  that \ndismissal is warranted under Rule 13.  Because of this finding, it is unnecessary \nto address the application of § 11-9-702. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the appellate courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825  (abridged  5\nth\n ed.  1983).  \nSee supra.","textLength":9089,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H300871 JOHN E. CANNON, EMPLOYEE CLAIMANT LITTLE ROCK SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCH. BDS. ASSN., THIRD-PARTY ADM’R RESPONDENT OPINION FILED AUGUST 1, 2024 Hearing before Administrative Law Judge O. Milton Fine II on August 1, 2024, in ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:49:41.478Z"},{"id":"alj-H307140-2024-07-31","awccNumber":"H307140","decisionDate":"2024-07-31","decisionYear":2024,"opinionType":"alj","claimantName":"Angel Lindsey","employerName":null,"title":"LINDSEY VS. CADDO HILLS SCHOOL DISTRICTAWCC# H307140July 31, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LINDSEY_ANGEL_H307140_20240731.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LINDSEY_ANGEL_H307140_20240731.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H307140 \n \nANGEL LINDSEY, Employee CLAIMANT \n \nCADDO HILLS SCHOOL DISTRICT, Employer RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT \n \n OPINION FILED JULY 31, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Russellville, Pope \nCounty, Arkansas. \n \nClaimant represented by KENNETH A. OLSEN, Attorney at Law, Bryant, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On May  2,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at Russellville, \nArkansas.      A  pre-hearing  conference  was  conducted  on March  11,  2024,  and  a  Pre-hearing \nOrder  was  filed  on March  12,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The   relationship   of   employee-employer-carrier   existed   between   the   parties on \nOctober 31, 2023. \n 3. The respondents have controverted the claim in its entirety. \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $813.00  for  temporary  total  disability  benefits  and  $610.00  for  permanent  partial \ndisability benefits. \n\nLindsey – H307140 \n \n-2- \n 5. The claimant reserves the issue of temporary total disability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to her right leg on or about October \n31, 2024. \n 2. Whether Claimant is entitled to medical treatment for her compensable right leg injury. \n The claimant's contentions are as follows: \n“Claimant contends that she sustained a compensable injury to her \nright  lower  extremity  in  the  course  and  scope  of  her  employment \non October 31, 2023, is entitled to medical and indemnity benefits, \nthat  Respondents  controverted  the  claim  in  its  entirety,  and  she  is \nalso entitled to attorney’s fee.” \n \n The respondents’ contentions are as follows: \n“Respondents contend that Claimant did not suffer a compensable \ninjury  under  the  Arkansas  Workers’  Compensation  Act. \nRespondents contend that in the event compensability is found, the \nclaimant  has  only  missed  13  days  of  work  and  would  only  be \nentitled  to  temporary  disability  benefits  for  a  one-week  period \nbased   on   the   waiting   period   under   the   Arkansas   Workers' \nCompensation Act.” \n \n The claimant in this matter is a 35-year-old female who was employed by the respondent \nas a fourth grade teacher. The claimant alleges that she sustained a compensable right leg injury \non  or  about  October  31,  2023,  when  she  fell.  As  a  result  of  that  fall  the  claimant  sustained \nfractures to her right ankle. In direct examination testimony the claimant described going to work \non October 31, 2023, and her activities before she fell as follows: \nQ Okay.  On  October  31\nst\n of  2023,  what  time  did  you  get  to \nwork? \n \nA 7:20. \n \nQ What did you do once you got there? \n \n\nLindsey – H307140 \n \n-3- \nA I gathered my material, got my children out of the car after \nI parked on top of that little hill and I noticed that we had our first \nfrost. The stairs were iced over with frost. The grass had a little bit \nof  frost  on  it.  I  thought  it  would  be  safer  to  ascend  down  or \ndescend  down  the  hill  on  the  grass  versus  the  stairs  because  they \nwere slippery. They had nothing on them except the ice, so I chose \nto  go  down  the  hill  with  my  youngest  son.  My  oldest  had  already \nmade  it  down  the  hill  into  the  building  when  I  fell  with  my \nyoungest son beside me. \n \n In hearing testimony, the claimant described the area she parked in as a parking lot on top \nof a hill. The claimant further testified that while parking in the lower lot in the past, her car was \nhit  on  two  different  occasions.  The  claimant  gave  direct  examination  testimony  about  why  she \nparked on top of the hill as follows: \nQ Had you previously parked on the lower level? \n \nA Before I was told to park up on the hill, yes. \n \nQ By whom were you told to park – \n \nA Deborah Stephens. \n \nQ Let me finish my question. \n \nA Oh, I’m sorry. \n \nQ By whom were you directed to park on the upper level? \n \nA Deborah Stephens. \n \nQ And who is that person? \n \nA She was my principal at the time. \n \nQ Is she currently the principal? \n \nA She is not. \n \nQ Were  you  told  why  you  needed  to  park  on  the  upper  level \nrather than the lower level? \n \n\nLindsey – H307140 \n \n-4- \nA She didn’t go into detail, but she informed me that it was a \ngood idea for me to park up at the top. \n \nQ Were  you  given  an  explanation  of  why  your  vehicle  being \nhit twice required that you park somewhere else? \n \nA I was told it was a better idea for me to park at the top. \n \nQ From that point on did you park on the upper level? \n \nA Yes, sir. \n \nQ And  how  long,  approximately,  before  October  the  31\nst\n of \n’23 did that occur? \n \nA At least a year. \n \n The  claimant  also  gave  direct  examination  testimony  about  the  fall  itself  and  the \naftermath shortly thereafter: \nQ All right. Do you know what caused you to fall? \n \nA The  ice  on  the  grass  and  the  hill  having  to  descend  down \nthe hill. There was no handrail to get down the steps, so I couldn’t \ndescend the steps. I didn’t feel like that was a safe option for me. \n \nQ Can you kind of go through – I know this happened pretty \nquickly – the exact manner in which you fell? \n \nA All  right.  I  started  to  go  down  the  hill  and  I  took  three  or \nfour steps, maybe, and I felt my foot slide out from underneath me \nand  everything – it  was  really  disorienting  and  everything  kind  of \nhappened  very  quickly.  I  felt  my  foot  slide.  I  feel  like  I  probably \nsat down on my leg and my ankle. And then I was at the bottom of \nthe  little  hill  where  I  kind  of  came  aware  of  what  was  happening \nand I was in a lot of pain. \n \nQ Did you try to get up and go into the school? \n \nA I tried to stand or I tried to move where I could stand and I \ncouldn’t. It was a lot of pain. It was a lot of – I couldn’t figure out \nwhy  everything  hurt  so  bad,  so  they  had  to  call – they  had  to  call \nthe nurse to come bring me a wheelchair. \n \n\nLindsey – H307140 \n \n-5- \nSometime  during  all  of  that,  another  teacher  came  up  to  me.  Ms. \nHanson  came  up  to  me  and  was  kind  of  helping.  Jason  Caldwell, \nour  maintenance  person,  he  does  maintenance  for  the  school,  he \nhad come up to me. He had actually fallen behind me. After I fell, \nhe came up to me sometime just a little bit later  and had fallen as \nwell in the same spot I fell. Lucky he didn’t fall on me and he was \nokay, but he fell as well. \n \nQ And who was that? \n \nA Jason Caldwell. \n \nQ And what is his position? \n \nA He  does  maintenance.  I  don’t  know  if  he  is  over \nmaintenance or not. \n \nQ Did more than one person come to your aid? \n \nA Yes, sir. I remember Hartwick being there with Ms. Tandy \nwith the wheelchair. And I don’t remember who else helped me \nup, but I know it was him and someone else helped me get into the \nwheelchair. \n \nI note that Brad Hartwick was present  at the hearing and called as a  witness by the respondent. \nMr.  Hartwick  is  the  current  elementary  school  principal  and  also  served  in  that  capacity  on \nOctober 31, 2023, when the claimant fell. \n The claimant was taken by a family member to Chi St. Vincent’s Hospital in Hot Springs, \nArkansas, that same day. Medical records from the claimant’s ER visit, in part, state: \nCHIEF  COMPLAINT:  Displaced  trimalleolar  ankle  fracture  right \nankle. \n \nPROCEDURE  SCHEDULED:  Open  reduction  internal  fixation \nright ankle. \n \nHPI:  Angel  Renee  Lindsey  is  a  34  y.o.  female  who  recently  fell \nonto  the  right  ankle.  This  was  the  result  of  a  mechanical  fall. \nPatient slipped on an “icy hill.” The patient had the onset of pain \nand inability to bear full weight onto the involved side. Subsequent \nx-ray  showed  a  displaced  trimalleolar  fracture  dislocation  of  the \n\nLindsey – H307140 \n \n-6- \nright  ankle.  This  was  reduced  and  splinted  in  the  ED.  She  was \nadmitted for pain control and surgical intervention. She denies any \nprior history on the right lower extremity. \n \nI  have  discussed  the  situation  with  the  patient  at  length.  They \nunderstand their problems as well as the different operative options \nthey have. They understand the potential for blood clots, infection, \nfailure  of  hardware,  incomplete  resolution  of  pain,  the  possibility \nof   revision   surgery,   and   up   to   and   including   death.   They \nunderstand  these  risks  and  accepts  them.  They  have  no  further \nquestions. \n \n The claimant was admitted to the hospital at that time and underwent several diagnostic \ntests  on  her  right  ankle,  including  x-rays  and  a  CT  scan,  both  of  which  revealed  right  ankle \nfractures. Following is a portion of the report of the CT scan on the claimant’s left ankle: \nFINDINGS: A nondisplaced medial malleolar fracture is identified \nwith  both  vertical  and  horizontal  components  extending  to  the \ntibiotalar   joint.   A   nondisplaced   vertically   oriented   posterior \nmalleolar fracture is identified with extension to the tibiotalar joint. \nA  nondisplaced  spiral  oblique  fracture  is  present  of  the  distal \nfibular diaphysis above the level of the ankle mortise. No evidence \nof   talar   or   calcaneal   fracture.   Small   heel   spurs   noted.   No \nsignificant  degenerative  changes  of  the  tibiotalar  subtalar  joints. \nSmall    tibiotalar    joint    effusion.    Soft    tissue    swelling    and \nsubcutaneous  edema  throughout  the  ankle  joint.  No  subcutaneous \nemphysema or radiopaque foreign bodies. \n \nIMPRESSION:  \n1. Nondisplaced trimalleolar fractures as described. \n \n On  November  2,  2023,  the  claimant  underwent  surgical  intervention  at  the  hands  of  Dr. \nChristopher Young at Chi St. Vincent’s Hospital. Following is a portion of that operative report: \nPre-operative Diagnosis: right trimalleolar ankle fracture \n \nPost-operative Diagnosis: Same \n \nProcedure  Performed:  Open  reduction  internal  fixation  of  right \ntrimalleolar ankle fracture \n \n\nLindsey – H307140 \n \n-7- \n It is the claimant’s burden to prove that she sustained a compensable injury to her right \nleg,  more  specifically,  her  right  ankle,  on  October  31,  2023,  as  she  alleges.  It  is  without  doubt \nthat the claimant fell on that day as she was going into her workplace. Clearly, there is evidence \nthrough  x-rays,  the  CT  scan,  and  surgical  records  of  objective  medical  findings.  However,  the \nclaimant also has to prove her fall occurred while she was performing employment services for \nthe respondent.  \nA compensable injury is defined, in part, as an accidental injury which arises out of an in \nthe course of employment. A.C.A.§ 11-9-102(4)(A)(I). However, a compensable injury does not \ninclude an injury “inflicted upon the employee at a time when employment services were not \nbeing  performed.”  A.C.A.  §11-9-102(4)(B)(iii).   An   employee   is   performing   employment \nservices  when  they  are  doing  something  that  is  generally  required  by  his  or  her  employer. \nContinental Construction Co. v. Nabors, 2015 Ark. App. 60, 454 S.W.3d 762; White v. Georgia-\nPacific Corp., 339 Ark. 474, 478, 6 S.W.3d 98, 100 (1999). The same test is used to determine \nwhether  an  employee  is  performing  employment  services  as  is  used  when  determining  whether \nan employee is acting within the course and scope of employment. The test is whether the injury \noccurred  within  the  time  and  space  boundaries  of  the  employment,  when  the  employee  was \ncarrying  out  the  employer’s  purpose  or  advancing  the  employer’s  interest  either  directly  or \nindirectly. Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W.3d 1 (2002). \n On cross examination the claimant was asked about her assigned classroom and her duty \nassignment as follows: \nQ Ms.  Lindsey,  we  have  established  your  position  at  Caddo \nHills as an ELA and social studies teacher; right? \n \nA Yes, sir. \n \n\nLindsey – H307140 \n \n-8- \nQ Still fourth grade? \n \nA Yes. \n \nQ And you have your own assigned classroom, correct? \n \nA Yes, sir. \n \nQ And the duty that you talked about is done on your hallway \noutside  of  your  classroom  between  your  classroom  and  another \nclassroom, right? \n \nA Yes,  sir.  Between  fourth  grade,  third  grade,  second  grade, \nand first. \n \nQ All right. And the tardy bell for your first class rings at 7:45 \na.m.? \n \nA Yes, sir. \n \n The  claimant  was  also  asked  on  cross  examination  about  where  her  classroom  and  duty \nstation were in relation to where she had parked her automobile: \nQ Okay.  The  place  where  you  parked  was  maybe  half  a \nfootball field from your classroom; correct? \n \nA Total distance. \n \nQ Yes. And that is half a football field away from where your \nduty would have been as well; correct? \n \nA Sure. \n \nQ To get to your classroom, you told me you had to go down \nthe hill, across the lower parking lot, through the middle doors into \nthe building, turn right, go all the way down the hall, and then your \nclassroom  was  on  the  left  at  the  last  stretch  of  hallway;  is  that \nright? \n \nA Yes, sir. \n \nQ And  then  the  office  is  pretty  much  on  the  opposite  side  of \nthe building? \n \n\nLindsey – H307140 \n \n-9- \nA Yes. \n \nQ Okay.  There  is  no  security  checkpoint  or  guard  check  or \nanything that you have to check into to come to school? \n \nA No, sir. \n \nQ And there is no gate or barrier you have to open or unlock \nto get to school? \n \nA No, sir. \n \nQ All right. At the time you fell, you were coming into work? \n \nA Yes, sir. \n \nQ Would you agree with that? \n \nA Yes, sir. \n \n On cross examination the claimant was asked about performing job duties on the day of \nher fall prior to its occurrence as follows: \nQ You pulled your vehicle in, got out, and went down the hill \nand fell, but you had not discharged any job duties at that point in \ntime; correct? \n \nA When I am on campus, I am expected to provide assistance \nwhenever needed. \n \nQ I didn’t ask you what was expected. I asked about what \nhappened that day. That day you had not discharged any job duties; \nhad you? \n \nA I had stepped out of my car and was coming down the hill \nand that is when I fell. \n \nQ And  that  day  you  had  not  discharged  any  job  duties;  had \nyou? \n \nA There were no duties performed while I was walking in that \nshort amount of time between my car and the hill. \n \n\nLindsey – H307140 \n \n-10- \nQ Okay.   That   is   what   I   am   getting   at.   You   had   not \nencountered any job tasks needed to be done for the school before \nyou fell; had you? \n \nA If I had, I might not have fallen. \n \nQ Okay. But you didn’t; right? \n \nA No, I did not. \n \nQ And the video is going to show there is no children present \nthat need to be supervised or helped our guided – \n \nA Other  than  my  youngest  son  who  is  a  student  at  Caddo \nHills. \n \nQ Well, that is your son in your vehicle; right? \n \nA He was walking beside me. \n \nQ Right. You bring him to school every day; right? \n \nA I do. \n \nQ Okay. So there are no students that aren’t related to you in \nthe area that might need your assistance as a teacher? \n \nA I don’t know who was around me at the time whenever I \nfell because it happened so fast. \n*** \nQ [BY  MR.  PARRISH]:  You  hadn’t  interacted  with  any \nbosses   or   supervisors   to   receive   any   special   instructions   or \nassignments at that point; correct? \n \nA No, sir. \n \nQ And  the  stuff  you  were  carrying  in  your  arms  was  not \nspecial,  unique  or  urgent  in  any  way  compared  to  what  you  bring \nin every day; right? \n \nA No, sir. \n \nQ Okay. And you agree if there are no students there to assist \nand  there  were  no  teachers  there  to  assist,  then  there  would  be  no \n\nLindsey – H307140 \n \n-11- \njob  duties  to  discharge  at  that  point  in  time.  Do  you  agree  with \nthat? \n \nA It  depends.  If  there  is  no  one  present,  then  there  is  no  one \nfor me to assist, but .... \n \nQ So you wouldn’t be discharged in a job duty; correct? \n \nA Not at that particular moment in time. \n \nI will note that Mr. Hartwick, who was present shortly after the claimant’s fall, testified that \nthere  were  no  children  in  the  area  at  the  time.  His  testimony  is  supported  by  the  surveillance \nvideo that was placed into evidence. \n After  a  review  of  the  testimony  and  evidence  in  this  matter  it  does  not  appear  that  the \nclaimant  was  performing  employment  services  at  the  time  of  her  fall.  Certainly,  she  was  going \nfrom  her  automobile  to  her  work,  but  was  not  performing  job  duties  at  the  time  of  her  fall  or \nadvancing her employer’s interests either directly or indirectly. There were no children in the \narea at the time of the claimant’s fall nor any other peer or supervisor to interact with the \nclaimant at that time. She was, at the exact time of her fall, only accompanied by her child, who \nis a student at that school, as she brought him daily with her. The claimant is unable to prove that \nshe sustained a compensable injury to her right leg on October 31, 2023. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n \n \n \n\nLindsey – H307140 \n \n-12- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nMarch 11, 2024, and contained in a Pre-hearing Order filed March 12, 2024, are hereby accepted \nas fact. \n 2. The  claimant  failed  to  prove  by  a  preponderance  of  the  evidence  that  she  sustained  a \ncompensable injury to her right leg on or about October 31, 2023. \n 3. The claimant has failed to prove by a preponderance of the evidence her entitlement to \nmedical treatment for her compensable right leg injury. \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":19282,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H307140 ANGEL LINDSEY, Employee CLAIMANT CADDO HILLS SCHOOL DISTRICT, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT OPINION FILED JULY 31, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope County, Arkans...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["ankle","fracture"],"fetchedAt":"2026-05-19T22:52:21.303Z"},{"id":"alj-H010344-2024-07-31","awccNumber":"H010344","decisionDate":"2024-07-31","decisionYear":2024,"opinionType":"alj","claimantName":"Magdelynn Sutton","employerName":null,"title":"SUTTON VS. AMAZON.COM SVCS, LLC.AWCC# H010344July 31, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Sutton_Magdelynn_H010344_20240731.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Sutton_Magdelynn_H010344_20240731.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NO. H010344 \n \nMAGDELYNN SUTTON,  \nEMPLOYEE  CLAIMANT \n \nAMAZON.COM SVCS, LLC., \nEMPLOYER/SELF INSURED                                                                           RESPONDENT \n \nAMERICAN ZURICH INS. CO., \nCARRIER/TPA                                                                                                     RESPONDENT \n \n \nOPINION FILED JULY 31, 2024 \n \nHearing before Administrative Law Judge Steven Porch on June 20, 2024, in Little Rock, Pulaski \nCounty, Arkansas. \n \nClaimant was represented by Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nThe Respondents were represented  by  Mr. Wade  H. Scofield  II,  Attorney  at  Law, Brentwood, \nTennessee. \n \nI.  BACKGROUND \nThis matter comes before the Commission on a Motion to Dismiss filed by the Respondent \non February 6, 2024. The Claimant worked as an associate for Respondent/Employer. Admitted \ninto evidence is Respondents’ Exhibit 1, Respondents’ Motion to Dismiss, consisting of 21 pages, \nand  Respondents’ Exhibit  2,  Claimant’s Questionnaire,  consisting  of 2 pages.  I  have  also  blue-\nbacked Forms AR-1, AR-2, and AR-C, as discussed infra. \nThe record reflects on December 14, 2020, a Form AR-C was filed by then-attorney, Laura \nBeth York, alleging injuries to her left and right hand, right leg, left and right knees, back, neck \nand other whole body due to tripping over a box. Claimant’s injury occurred November 26, 2020. \nRespondents  filed  a  Form  AR-2,  on  December  21,  2020,  accepting  the  claim  as  compensable. \nClaimant’s counsel on September 25, 2023, withdrew as counsel of record. Respondents sent \n\nSUTTON AWCC No. H010344 \n \n 2 \ncorrespondence to  Claimant  on  November  14,  2023, to settle  the  claim.  The  Claimant  did  not \nrespond to the letter, or any phone calls made by Respondents’ counsel.  \nThe Respondents next filed a Motion to Dismiss on February 6, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The  Claimant  was  sent,  certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss from my office on February 7, 2024, to her last known address of \nrecord. The certified notice was claimed by Claimant on February 13, 2024. Likewise, the notice \nsent regular U.S. Mail was not returned to the Commission. Claimant did not respond to the notice \nin writing as required. Thus, in accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of Respondents’ Motion to Dismiss hearing date at her current address \nof record via the United States Postal Service (USPS), First Class Certified Mail, Return Receipt \nRequested, and regular First-Class Mail, on May 20, 2024. The certified notice was claimed by \nthe Claimant on May 23, 2024. The hearing took place on June 20, 2024, and the Claimant did \nshow up to the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including Respondents’ Exhibit 1, correspondence \nand  pleadings,  consisting  of  21  pages, Respondents’ Exhibit 2, Questionnaire, consisting of 2 \npages, and the argument of both Claimant’s counsel and Respondents’ counsel, I hereby make the \nfollowing findings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2. All  parties  received reasonable notice  of  the June  20,  2024, Motion  to Dismiss \nhearing date. \n \n3. Respondents did not prove by a preponderance of the evidence that Claimant has \nfailed to prosecute her claim under AWCC R. 099.13. \n\nSUTTON AWCC No. H010344 \n \n 3 \n \n4. The Motion to Dismiss should be, and hereby is, denied. \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Respondents must prove by a preponderance \nof the evidence that dismissal should be granted. The standard “preponderance of the evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, \n326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission. White  v.  Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant or  any  other witness  but may  accept  and  translate  into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \nConsistent with AWCC Rule 099.13, as well as our court of appeals’ ruling in Dillard vs. \nBenton  County  Sheriff’s  Office,  87  Ark.  App.  379,  192  S.W.3d  287  (Ark.  App.  2004),  the \nCommission scheduled and conducted a hearing on the Respondents’ Motion to Dismiss. I do find \nby the preponderance of the evidence, introduced at the hearing and contained in the record, that \nClaimant has neither made a bona fide request for a hearing nor has she taken any action to pursue \n\nSUTTON AWCC No. H010344 \n \n 4 \nher claim prior to the hearing date. Nevertheless, I further find that Claimant has shown, by her \ntestimony that she wants her claim to continue forward and by securing legal counsel and having \nthat counsel present at the Motion to Dismiss hearing, a sincere desire to prosecute her claim. Thus, \nI find that the Respondents have not proven by the preponderance of the evidence that its’ motion \nshould be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby denied. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6460,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO. H010344 MAGDELYNN SUTTON, EMPLOYEE CLAIMANT AMAZON.COM SVCS, LLC., EMPLOYER/SELF INSURED RESPONDENT AMERICAN ZURICH INS. CO., CARRIER/TPA RESPONDENT OPINION FILED JULY 31, 2024 Hearing before Administrative Law Judge Steven Porch on June 20, 2024, in L...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2","denied:3"],"injuryKeywords":["back","neck"],"fetchedAt":"2026-05-19T22:52:23.374Z"},{"id":"full_commission-G807164-2024-07-30","awccNumber":"G807164","decisionDate":"2024-07-30","decisionYear":2024,"opinionType":"full_commission","claimantName":"Kimberly Clardy","employerName":"University Of Arkansas Fayetteville","title":"CLARDY VS. UNIVERSITY OF ARKANSAS FAYETTEVILLE AWCC# G807164 JULY 30, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Clardy_Kimberly_G807164_20240730.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Clardy_Kimberly_G807164_20240730.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G807164 \n \nKIMBERLY CLARDY, \nEMPLOYEE \n \nCLAIMANT \nUNIVERSITY OF ARKANSAS FAYETTEVILLE,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JULY 30, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE AARON L. MARTIN, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Vacated & Remanded. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nFebruary 29, 2024.  The administrative law judge found that the claim \nshould be dismissed without prejudice.  After reviewing the entire record de \nnovo, the Full Commission vacates the administrative law judge’s opinion, \nand we remand for further proceedings.     \nI.  HISTORY \n The parties stipulated that the employee-employer-carrier \nrelationship existed on October 3, 2018.  The parties stipulated that the \nclaimant “was working as a temporary employee for the University of \n\nCLARDY - G807164  2\n  \n \n \nArkansas on October 3, 2018” and that the claimant “alleges an accidental \ninjury to her right shoulder on October 3, 2018.” \n The parties stipulated that the claimant “called [the] Company Nurse \non October 8, 2018 to report an on-the-job injury.”  The parties stipulated \nthat the claimant “received medical treatment at Pat Walker Health Center \non October 9, 2018, and the bill related to that treatment was paid by \nRespondents on November 4, 2018.”  The parties stipulated that “no \nadditional medical or indemnity benefits were paid relative to this claim after \nNovember 4, 2018.” \n The parties stipulated that the claimant “filed an AR-C with the \nCommission for initial and additional benefits on April 5, 2019.”  The parties \nstipulated that the respondents “filed a Motion to Dismiss (MTD) for failure \nto prosecute on October 30, 2023.”  The parties stipulated that the claimant \n“filed her Response in Opposition to the MTD on November 27, 2023, and \nexpressed her wish to move forward with a hearing on her claim.”     \n A pre-hearing order was filed on January 18, 2024.  The claimant \ncontended, “The claimant contends that she sustained a compensable \ninjury to her right shoulder on 10/3/18.  In addition, the claimant contends \nthat she is entitled to additional reasonable and necessary medical \ntreatment in connection with her compensable right shoulder injury.  Next, \nthe claimant contends that the employer, without reasonable cause, refused \n\nCLARDY - G807164  3\n  \n \n \nto return the claimant to work where suitable employment was available.  \nFinally, the claimant contends that she is entitled to controverted attorney \nfees for indemnity benefits awarded and any and all future indemnity \nbenefits arising from the right shoulder injury.  The claimant hereby \nreserves her rights to any and all additional benefits.”   \n The respondents contended, “The claimant reported an injury to her \nneck on October 3, 2018 while lifting a crate of mail.  The claimant was \ntreated at Pat Walker Health Center on October 9, 2018 and was diagnosed \nwith a soft tissue neck strain.  The claimant received no other medical \ntreatment related to her alleged injury.  The bill related to the medical \ntreatment was paid by Respondents on November 4, 2018.  There was no \nadditional activity or requests for a hearing after that date.”   \n The respondents contended, “In April, 2019, the claimant filed a \nForm C.  No hearing was requested.  There was no additional activity on \nthis claim.  On October 30, 2023, the Respondents filed a Motion to Dismiss \non October 30, 2023.  The claimant has now requested a hearing in \nresponse to the Respondents Motion to Dismiss.” \n The respondents contended, “Respondents contend that the \nclaimant has received all benefits and medical treatment to which she might \nhave been entitled as a result of her soft tissue neck strain injury.  After the \nreport of injury the claimant attended one medical appointment, the bill was \n\nCLARDY - G807164  4\n  \n \n \npaid by Respondents in November, 2018, and no other action was taken by \nclaimant other than filing a Form C in April, 2019.  The claimant has not \npursued any additional benefits and the claim was dormant until \nRespondents filed the Motion to Dismiss in October, 2023.  The \nRespondents would contend that the limitations of Ark. Code Ann. {11-9-\n702 apply to this claim.  The claimant’s claim for additional benefits is time \nbarred pursuant to Ark. Code Ann. {11-9-702(b)(1), and the claim should be \ndismissed pursuant to Ark. Code Ann. {11-9-702(a)(4).  The Respondents \nreserve the right to modify these contentions [as] necessary pending further \ndiscovery.\"   \n The parties agreed to litigate the following issue:  \"1.  Whether this \nclaim is barred by the statute of limitations.  All other issues are reserved by \nthe parties.”   \n An administrative law judge filed an opinion on February 29, 2024.  \nThe administrative law judge found, among other things, that the claim \nshould be dismissed without prejudice.  The claimant appeals to the Full \nCommission. \nII.  ADJUDICATION \n Commission Rule 099.13 provides, in pertinent part: \nUpon meritorious application to the Commission from either \nparty in an action pending before the Commission, requesting \nthat the claim be dismissed for want of prosecution, the \n\nCLARDY - G807164  5\n  \n \n \nCommission may, upon reasonable notice to the parties, enter \nan order dismissing the claim for want of prosecution.   \n \n The purpose of Commission Rule 099.13 is to permit the claimant to \nresist dismissal of the claim and to show, if she can, why the application for \ndismissal is without merit.  Dura Craft Boats, Inc. v. Daugherty, 247 Ark. \n125, 444 S.W.2d 562 (Ark. 1969).   \n In the present matter, the claimant alleged that she had sustained a \nwork-related injury to her right shoulder on October 3, 2018.  Although they \nhave not stipulated that the claimant sustained a compensable injury, the \nrespondents paid for a medical visit received by the claimant on October 9, \n2018.  The claimant filed a claim for initial and additional benefits on April 5, \n2019.  On October 30, 2023, the respondents filed a Motion to Dismiss, \nasserting that the claimant had failed to prosecute her claim.  The claimant \nfiled a timely response on November 27, 2023 and “expressed her wish to \nmove forward with a hearing on her claim.”   \n Rule 099.13 is designed to permit the Workers’ Compensation \nCommission to see that the rights of the claimant are not prejudiced.  \nDaugherty, supra.  In the present matter, in order to ensure that the rights of \nthe claimant are not prejudiced, the Full Commission vacates the \nadministrative law judge’s dismissal of the claim.  We remand the case to \nthe administrative law judge for further proceedings.  The Full Commission \ndirects the administrative law judge to adjudicate all pertinent issues, \n\nCLARDY - G807164  6\n  \n \n \nincluding whether the claimant proved she sustained a compensable injury, \nwhether the claimant proved she was entitled to additional benefits, and \nwhether the statute of limitations bars the claim.  The Full Commission \nstrongly advises the claimant to introduce evidence in accordance with Ark. \nCode Ann. §11-9-705(c)(Supp. 2023).   \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":7775,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G807164 KIMBERLY CLARDY, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FAYETTEVILLE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JULY 30, 2024","outcome":"dismissed","outcomeKeywords":["remanded:1","vacated:1","modified:1","dismissed:4","granted:1"],"injuryKeywords":["shoulder","neck","strain"],"fetchedAt":"2026-05-19T22:29:45.237Z"},{"id":"full_commission-H303132-2024-07-30","awccNumber":"H303132","decisionDate":"2024-07-30","decisionYear":2024,"opinionType":"full_commission","claimantName":"Mikel Miller","employerName":"Spurlock, Inc","title":"MILLER VS. SPURLOCK, INC. AWCC# H303132 JULY 30, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Miller_Mikel_H303132_20240730.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Miller_Mikel_H303132_20240730.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H303132 \n \n \nMIKEL MILLER, EMPLOYEE               CLAIMANT    \n \nSPURLOCK, INC., EMPLOYER                                    RESPONDENT\n     \nBITCO GENERAL INSURANCE  \nCORPORATION, CARRIER/TPA           RESPONDENT \n \nOPINION FILED JULY 30, 2024 \n \nUpon review before the Full Commission, Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas.  \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Reversed. \n \n \nOPINION AND ORDER \n  \nRespondents appeal an administrative law judge’s (ALJ) opinion filed \nFebruary 21, 2024.    The administrative law judge found that the claimant \nhad overcome the rebuttable presumption of Ark. Code Ann. § 11-9-\n102(4)(B)(iv) and proven he sustained a compensable left wrist injury on \nMay 10, 2023. After reviewing the record de novo, the Full Commission \nfinds the claimant did not sustain a compensable injury.   \n The claimant sustained a left wrist injury when he fell through the \nroof of a building he was demolishing for the respondent employer on May \n\nMILLER – H303132                  2 \n \n \n10, 2023. Upon arrival at the ER, the claimant tested positive for marijuana \nand benefits were denied by the carrier.  \nA prehearing order was filed on November 7, 2023.    The claimant \ncontended he sustained a compensable injury to his left wrist and although \nhe tested positive for an illegal substance, the accident occurred as a result \nof the roof collapsing and his falling through it and had nothing to do with \ndrug use at the time of the accident. \nThe respondents contended the claimant tested positive for an illegal \ndrug on the day of the accident, and the use of the illegal drug was the \ncause of the accident. \nThe parties agreed the issues to be presented were compensability \nof an injury to the claimant’s left wrist and the entitlement to benefits.  \nA hearing on this matter was held before an ALJ on January 29, \n2024. At the hearing, the claimant testified that he believed he went to work \nfor the respondent employer around October of 2022 as a general labor \nhand.   \nOn May 10, 2023, his first day at a job site in Cabot, employees were \ndemolishing an old strip mall. The claimant was instructed to get a piece of \nmetal off a slanted metal roof, which was between thirteen (13) and fifteen \n(15) feet high and required a ladder to access. An impact gun was used to \nunscrew the metal, and when the claimant picked it up, the piece of metal \nfolded, and he fell through landing on debris below.   \n\nMILLER – H303132                  3 \n \n \nAfter the fall, the claimant testified that he had pain in his left wrist \nand back, and his left wrist swelled. The claimant was transported by \nambulance to the Baptist Health Springhill emergency room. He was drug \ntested upon arrival at the hospital and testified that he was concerned about \nthe test because he had smoked marijuana two (2) weeks before. He \nadmitted to using marijuana, “probably twice every two months” and further \nstated that it made him feel calm, relaxed, and that it gets rid of his anxiety. \nThe second witness at the hearing was the claimant’s friend and \nroommate, Mason Garner, who was employed by the respondent and was \non the job site on May 10, 2023. Mr. Garner witnessed part of the claimant’s \nfall, and “turned around and he was on the floor” landing on insulation and a \ndebris pile. He thought the claimant probably fell fifteen to seventeen feet. \nMr. Garner testified he had not noticed anything unusual about the \nclaimant that day and had no reason to believe the claimant was under the \ninfluence of marijuana at the time of the accident, based upon his actions \nand demeanor. He signed a written statement, submitted into evidence, \nstating that the claimant was not under the influence of any illegal \nsubstance of any kind on May 10, 2023. Mr. Garner went on to testify, “He  \n- - he - - Like I said, he acted normal as me and you are right now, you \nknow. Didn’t seem like he was under any influence of anything, acted \nnormal as anyone should be.”  \n\nMILLER – H303132                  4 \n \n \nUnder cross-examination, Mr. Garner admitted he had never seen \nthe claimant under the influence of drugs, and he would not know the \ndifference between if he was or was not under the influence of drugs. He \nalso admitted he was not trained in any way to detect if a person was \nimpaired by drugs and had little medical knowledge of anything like that. He \nalso admitted using marijuana before he got out of high school. \nDr. Ethan Shock, an orthopedic surgeon with OrthoArkansas \nperformed surgery on the claimant’s left wrist on May 22, 2023. The \nclaimant returned to Dr. Schock on June 7, 2023, and received a short-arm \ncast. Dr. Shock opined in his report from the claimant’s final visit on August \n16, 2023, that the claimant lacked about 5 degrees of full flexion about the \nwrist and released the claimant from his care. \nAn administrative law judge filed an opinion on February 21, 2024.   \nThe administrative law judge found, among other things, that the claimant \nhad satisfied the burden of proof by a preponderance of the evidence to \novercome the rebuttable presumption of Ark code Ann. § 11-9-102(4)(B)(iv) \nand had proven he suffered a compensable left wrist injury on May 10, \n2023.    Additionally, he found the claimant had satisfied the burden of \nproving that he is entitled to reasonable and necessary medical treatment \nincluding the reasonable and necessary medical treatment that had already \noccurred, plus the unreimbursed travel expenses introduced at the hearing.   \nThe respondents appeal to the Full Commission.    \n\nMILLER – H303132                  5 \n \n \nArkansas Code Annotated § 11-9-102(B)(iv) provides that  \nThe presence of alcohol, illegal drugs, or \nprescription drugs used in contravention of a \nphysician's orders shall create a rebuttable \npresumption that the injury or accident was \nsubstantially occasioned by the use of alcohol, \nillegal drugs, or prescription drugs used in \ncontravention of physician's orders. \n \nWhether a rebuttable presumption is overcome by the evidence is a \nquestion of fact for the Commission to determine. Weaver v. Whitaker \nFurniture Co., 55 Ark. App. 400, 935 S.W.2d 584 (1996).  \nThe Commission is not required to believe the testimony of any party \nor witness but may accept into its findings of fact only the portions of \ntestimony that it deems worthy of belief. American Greeting Corp. v. Garey, \n61 Ark. App. 18, 963 S.W.2d 613 (1998).  \nA claimant’s testimony is never considered uncontroverted, and his \nown self-serving testimony regarding the nature and extent of drug use is \ninsufficient to overcome this presumption. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994); Ester v. National Home Centers, \nInc., 61 Ark. App. 91, 967 S.W.2d 565 (1998). The visual assessment by a \nwitness of a claimant’s sobriety or intoxication alone is not sufficient \nevidence to rebut this statutory presumption. Papageorge v. Tyson Shared \nServs., 2019 Ark. App. 603, 590 S.W.3d 800 (2019). \nIn the present case, the claimant tested positive for marijuana upon \narriving at the hospital after his fall. At the hearing, the claimant admitted to \n\nMILLER – H303132                  6 \n \n \nmarijuana use and asserted that he was not disputing the results of the \ndrug test; however, the claimant testified that his last marijuana use was \ntwo (2) weeks prior to his fall.  \nThe claimant’s sole corroborating witness was his friend and \nroommate, Mason Garner, who was present and witnessed the claimant’s \nfall. Although Mr. Garner testified that he did not believe the claimant was \nunder the influence of marijuana at the time of the accident, he later \nadmitted that he had never seen the claimant under the influence of drugs \nand did not know the difference between if he is and if he isn’t. He further \ntestified that he was not trained to detect if a person was impaired by drugs, \nhad little medical knowledge of anything like that, and his testimony was \nstrictly on a layman basis.  \nIn Weaver v. Whitaker Furniture Co., 55 Ark. App 400, 935 S.W.2d \n584 (1996), the Commission stated while some accidental injuries might \noccur with little relationship to intoxication, a slip and fall type injury is of the \ntype which could be influenced by the effect of the forbidden substances. \nMoreover, the record does not reveal whether the other persons who \nallegedly did not notice intoxication possessed any special training for \nmaking such assessments. Id. \nThis case is controlling and exactly on point with the facts of this \ncase. The type accident sustained by the claimant in the case before us is \nthe type that could be influenced by the effect of forbidden substances and \n\nMILLER – H303132                  7 \n \n \nthe claimant’s witness who allegedly did not notice intoxication admitted he \ndid not possess any special training to make such an assessment.  \nThis self-serving, uncorroborated testimony by the claimant is \ninsufficient to rebut the presumption that marijuana was the substantial \ncause of his injury, and there are no facts or evidence in the record that \nwould support his testimony. To find the claimant has overcome the \nstatutory presumption would require conjecture and speculation and \nimpermissibly give the claimant the benefit of the doubt.  \nThe claimant’s sole witness, a friend, attempted to substantiate the \nclaimant’s testimony that the claimant was not under the influence of \nmarijuana at the time of his accident. However, because that friend is \nneither a professional nor trained in detecting the symptoms of drug \nintoxication, his testimony is not enough to overcome the presumption. In \naddition, Mr. Gardner testified he had never seen the claimant under the \ninfluence of drugs and, as a result, would be unable to tell whether the \nclaimant was or was not under the influence of drugs. \nWithout any evidence substantiating the claimant’s contention that \nhe was not under the influence of marijuana at the time of his injury, the \nclaimant has failed to rebut the presumption set forth in Ark. Code Ann. § \n11-9-102(B)(iv). Therefore, the claimant did not prove he had sustained a \ncompensable injury to his left wrist on May 10, 2023.  Accordingly, the \n\nMILLER – H303132                  8 \n \n \nOpinion of the administrative law judge filed on February 21, 2024, is \nhereby reversed.  \nIT IS SO ORDERED. \n \n    ____________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ____________________________________ \n    MICHAEL R. MAYTON, Commissioner  \n \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n   The Administrative  Law  Judge  (hereinafter  referred  to  as  “ALJ”) \nfound that an employer/employee relationship existed on May 10, 2023, that \nthe Claimant has satisfied the burden of proof, by a preponderance of the \nevidence, to overcome the rebuttable presumption of Ark. Code Ann. § 11-9-\n102(4)(B)(iv) and has proven he suffered a compensable left wrist injury on \nMay 10, 2023, that the Claimant has satisfied the burden of proof that he is \nentitled to reasonable and necessary medical treatment, and finally, that the \nClaimant  has  satisfied  the  burden  of  proof,  by  a  preponderance  of  the \nevidence, that he is entitled temporary total disability from the day following \nhis injury through the date of July 9, 2023.  After conducting a de novo \nreview, I would concur with the ALJ’s findings.  \n\nMILLER – H303132                  9 \n \n \n1. The Claimant has satisfied the burden of proof, by a preponderance \nof the evidence, to overcome the rebuttable presumption of Ark. Code \nAnn. § 11-9-102(4)(B)(iv) and has proven he suffered a compensable \nleft wrist injury on May 10, 2023.  \n To establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence.   A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002) \n Ark. Code Ann. § 11-9-102(4)(B)(iv) states that a compensable injury \ndoes not include “injury where the accident was substantially occasioned by \nthe use of [...] illegal drugs.”  The presence of illegal drugs creates a \nrebuttable presumption that the injury or accident was substantially \noccasioned by the use of illegal drugs.    Ark. Code Ann. § 11-9-\n102(4)(B)(iv)(b).  “Substantially occasioned” requires that there be a direct \ncausal link between the use of illegal drugs and the injury in order for the \n\nMILLER – H303132                  10 \n \n \ninjury to be considered non-compensable.   ERC Contractor Yard & Sales \nv. Robertson, 335 Ark. 63, 71, 977 S.W.2d 212, 216 (1998).  \n The Claimant testified that the accident in question happened after \nhe began removing a piece of metal off a slanted roof as instructed by his \nsupervisor.    Claimant testified that he noticed that a lot of screws were \nmissing off the roof and some spots of the metal were rusty.    While using \nan impact gun to unscrew the remaining screw from the metal piece, the \nmetal piece folded and the Claimant fell approximately thirteen (13) to \nfifteen (15) feet, landing on his left wrist.    The Claimant was transported by \nambulance to Baptist Health Emergency Department who noted the \nClaimant as oriented in event, person, place, and time.    (Cl. Ex. 2 p. 2).    At \nthe hospital, Claimant was seen by Dr. Raymond E. Peeples who noted that \nClaimant’s behavior and mood was normal.  (Cl. Ex. 2, p. 11).  Claimant \nwas diagnosed with an intra-articular fracture of his left wrist as visualized \nby X-Ray.    Claimant was tested for illegal substances on the date of the \naccident and tested positive for marijuana.  \n Claimant testified that he had smoked marijuana approximately two-\nweeks prior and was not under the influence of marijuana at the time of the \naccident.  Mason Garner, Claimant’s co-worker, testified that the Claimant \nwas not acting unusual on the date of the accident, that he had no reason \nto believe that Claimant was under the influence of marijuana at the time of \nthe accident based upon Claimant’s actions and demeanor, and that \n\nMILLER – H303132                  11 \n \n \nClaimant was acting “normal.”  Garner also testified that he had never seen \nthe Claimant under the influence of drugs and was not a trained \ntoxicologist.  \n The question at issue is whether the Claimant can overcome the \npresumption that the use of illegal drugs caused the work accident.    I find \nthat the Claimant has overcome this presumption.    The Claimant was told \nto remove a metal piece from a slanted roof, the metal piece was not \nsecured properly and folded underneath the Claimant causing him to fall \napproximately thirteen (13) to fifteen (15) feet.    Regardless of the \nClaimant’s marijuana usage, the credible evidence suggests that this \naccident would have occurred.  \n The uncorroborated testimony of an interested party is never \nconsidered uncontradicted, but this does not mean that the fact-finder may \nnot find such testimony to be credible and believable or that it must reject \nsuch testimony if it finds the testimony worthy of belief.   Continental \nExpress v. Harris, 61 Ark. App. 198, 965 S.W.2d 811 (1998).    In the case \nat hand, the Claimant proved himself a credible witness.    Claimant \nadmitted to smoking marijuana two-weeks prior to the accident.    Claimant \nwillingly took the drug test as required by his workplace.    Claimant testified \nthat he has smoked marijuana in the past.  Further, the EMT’s in the \nambulance, the physician at the emergency department, and Claimant’s \n\nMILLER – H303132                  12 \n \n \ncoworker, Mason Garner, all found that Claimant was acting normally on \nthe date of the accident.  \n Therefore, I would rule that he has overcome the presumption \ncreated by Ark. Code Ann. § 11-9-102(4)(B)(iv) and thus has satisfied the \nburden of proof, by a preponderance of the evidence, that he suffered a \ncompensable left wrist injury on May 10, 2023. \n2. The Claimant has satisfied the burden of proof that he is entitled to \nreasonable and necessary medical treatment, including the \nreasonable and necessary medical treatment that has already \noccurred, plus the unreimbursed travel expenses that were \nintroduced into the record.  \n  \n An employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee. Ark. Code Ann. § 11-9-508(a).   \nReasonable and necessary medical services may include those necessary \nto accurately diagnose the nature and extent of the compensable injury; to \nreduce or alleviate symptoms resulting from the compensable injury; or to \nmaintain the level of healing achieved; or to prevent further deterioration of \nthe damage produced by the compensable injury. Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).  \n As Claimant has satisfied the burden of proof that he suffered a \ncompensable left wrist injury on May 10, 2023 and overcome the \npresumption of Ark. Code Ann. § 11-9-102(4)(B)(iv), he is entitled to \n\nMILLER – H303132                  13 \n \n \nreasonable and necessary medical treatment for his injury including the \nmedical treatment which has already occurred.  \n3. That the Claimant has satisfied the burden of proof, by a \npreponderance of the evidence, that he is entitled temporary total \ndisability from the day following his injury through the date of July 9, \n2023.  \n \nTemporary total disability benefits are appropriate where the \nemployee remains in the healing period and is totally incapacitated from \nearning wages. Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981).  \nThe Claimant was taken off of work by Dr. Ethan Schock on May 11, \n2023 for his compensable left-wrist injury and was to remain off of work until \nafter a post-operative visit occurred.    The Claimant had surgery on May 22, \n2023. Claimant was fully released at maximum medical improvement on \nAugust 16, 2023 by Dr. Schock.    The Claimant began employment with \nanother employer on July 10, 2023.  \nTherefore, I would rule that the Claimant has satisfied the burden of \nproof by a preponderance of the evidence that he is entitled to temporary \ntotal disability from the day following his injury through July 9, 2023.  \nFor the reasons stated above, I respectfully dissent. \n                                                                                                                \n                                  ______________________________                      \n                             M. SCOTT WILLHITE, Commissioner","textLength":19464,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303132 MIKEL MILLER, EMPLOYEE CLAIMANT SPURLOCK, INC., EMPLOYER RESPONDENT BITCO GENERAL INSURANCE CORPORATION, CARRIER/TPA RESPONDENT OPINION FILED JULY 30, 2024 Upon review before the Full Commission, Little Rock, Pulaski County, Arkansas. Claimant repre...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["wrist","back","fracture"],"fetchedAt":"2026-05-19T22:29:45.253Z"},{"id":"full_commission-H300312-2024-07-30","awccNumber":"H300312","decisionDate":"2024-07-30","decisionYear":2024,"opinionType":"full_commission","claimantName":"Tab Ogden","employerName":"Mcdonald’s/buckliew Enterprises","title":"OGDEN VS. McDONALD’S/BUCKLIEW ENTERPRISES AWCC# H300312 JULY 30, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Ogden_Tab_H300312_20240730.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Ogden_Tab_H300312_20240730.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H300312 \n \nTAB J. OGDEN, EMPLOYEE  CLAIMANT \n \nMcDONALD’S/BUCKLIEW ENTERPRISES,  \nEMPLOYER RESPONDENT \n \nRISK MANAGEMENT RESOURCES,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED JULY 30, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE CAROL LOCKARD \nWORLEY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed April 23, 2024.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-hearing \nconference conducted on October 9, 2023, and contained in a Pre-\nhearing Order filed October 10, 2023, are hereby accepted as fact.   \n \n2. The claimant has failed to prove by a preponderance of the evidence \nthat he sustained a compensable injury to his right shoulder on or \nabout November 21, 2022.  \n \n\n \nOGDEN - H300312  2\n  \n \n \n3. The claimant has failed to prove by a preponderance of the evidence \nthat he is entitled to medical treatment for his right shoulder.  \n \n4. The respondent’s defense of lack of notice is moot. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's April 23, \n2024 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2388,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H300312 TAB J. OGDEN, EMPLOYEE CLAIMANT McDONALD’S/BUCKLIEW ENTERPRISES, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JULY 30, 2024 Upon review before the FULL COMMISSION in Lit...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1","denied:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:29:45.258Z"},{"id":"alj-H303953-2024-07-30","awccNumber":"H303953","decisionDate":"2024-07-30","decisionYear":2024,"opinionType":"alj","claimantName":"Cynthia Joslun","employerName":null,"title":"JOSLUN VS. BUTTERBALL, LLCAWCC# H303953July 30, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JOSLUN_CYNTHIA_H303953_20240730.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOSLUN_CYNTHIA_H303953_20240730.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H303953 \n \nCYNTHIA JOSLUN, Employee CLAIMANT \n \nBUTTERBALL, LLC, Employer RESPONDENT \n  \nCCMSI, Carrier RESPONDENT \n \n OPINION/ORDER FILED JULY 30, 2024  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS,  in Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas; although not \npresent at hearing. \n \nRespondent represented by ZACHARY RYBURN, Attorney, Little Rock, Arkansas. \n \n OPINION/ORDER \n \n This case comes on for review following a hearing on respondent’s Motion to Dismiss. \nOn June 22, 2023, Evelyn E. Brooks, claimant’s attorney, filed a Form AR-C requesting \nvarious compensation benefits; however, no hearing was requested. No further action was taken \nin this claim. \nOn  February  29,  2024,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim be dismissed for lack of prosecution. A hearing was scheduled for June 18, 2024. Notice of \nthat hearing was sent to the claimant by certified mail, return receipt requested on May 15, 2024. \nThat notice was returned by the United States Postal Department with the notation, “Return to \nSender.  Unclaimed.  Unable to Forward.” Ms. Brooks indicated by email on June 16, 2024, that \nshe would waive her appearance at the hearing and further indicated that she had no objection to \nthe Motion to Dismiss “WITHOUT prejudice.”    \n\nJoslun – H303953 \n2 \n \n After  my  review  of  respondent’s  Motion  to  Dismiss, Ms. Brooks’ response  thereto  that \nshe  had  no  objection  to  the  motion  to  dismiss  without  prejudice,  and  the claimant’s failure  to \nappear  at  the  scheduled  hearing, as  well  as all  other  matters  properly  before  the  Commission,  I \nfind that respondent’s Motion to Dismiss this claim should be and hereby is granted pursuant to \nA.C.A. §11-9-702(a)(4).  This dismissal is without prejudice.     \n IT IS SO ORDERED. \n \n       \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2098,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H303953 CYNTHIA JOSLUN, Employee CLAIMANT BUTTERBALL, LLC, Employer RESPONDENT CCMSI, Carrier RESPONDENT OPINION/ORDER FILED JULY 30, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS, in Fort Smith, Sebastian County, Arkansas. Claimant represented...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:14.919Z"},{"id":"alj-H306652-2024-07-30","awccNumber":"H306652","decisionDate":"2024-07-30","decisionYear":2024,"opinionType":"alj","claimantName":"Deborah Voyles","employerName":null,"title":"VOYLES VS. BELVEDERE NURSING REHAB CENTER, LLCAWCC# H306652July 30, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/VOYLES_DEBORAH_H306652_20240730.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"VOYLES_DEBORAH_H306652_20240730.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H306652 \n \n \nDEBORAH VOYLES, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nBELVEDERE NURSING REHAB CENTER, \nLLC, A SUBSIDARY OF CENTRAL ARKANSAS \nNURSING CENTERS, INC.,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nINDEMNITY INSURANCE COMPANY \nOF NORTH AMERICA (PA), \nINSURANCE CARRIER                                                                                        RESPONDENT  \n          \nESIS, INC.,  \nTHIRD PARTY ADMINISTRATOR                                                                    RESPONDENT                  \n \nOPINION FILED JULY 30, 2024   \n \nA hearing was held before Administrative Law Judge Chandra L. Black, in Garland County, Hot \nSprings, Arkansas. \n \nThe Claimant, pro se, did not appear at the hearing.        \n \nRespondents represented by the Honorable Eric Newkirk, Attorney at Law, Little Rock, Arkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on July 26, 2024 , in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702(a)(4), and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nThe record consists of the transcript of the July 26, 2024, hearing and the documents held \ntherein.  Specifically, Commission’s Exhibit 1 includes four (4) total pages of correspondence and \n\nVOYLES-H306652 \n \n2 \n \nreturned receipt from the United States Postal Service; and Respondents’ Exhibit 1 consisting of \ntwenty-one  (21)  numbered pages of pleadings,  correspondence,  unexecuted  authorizations, \ndiscovery requests, and various other forms related to this claim. \nNo testimony was taken at the dismissal hearing. \n                                                                    Discussion \n On October 11, 2023, the Claimant’s former attorney filed with the Commission a claim \nfor Arkansas workers’ compensation benefits on behalf of the Claimant via a Form AR-C.  Per \nthis  document,  the  Claimant  alleged  that she was  injured during  the  course  and  scope  of  her \nemployment with the respondent-employer, February 3, 2023.  Specifically, the Claimant alleged \ninjuries to her right shoulder, right arm, and other whole body.  Her attorney checked all the boxes \nfor both initial and additional benefits.   \n  The respondent-insurance-carrier filed a Form AR-2, with the Commission on November \n2,  2023, wherein  they denied compensability of  the  claim.   Per  this  document,  the claims \nrepresentative stated that the claim was being controverted on the following grounds: “Claim does \nnot meet criteria for compensability.”      \n Since the filing of the Form AR-C on October 11, 2023, there has been no action on the \npart of the Claimant to prosecute this case by way of a bona fide request for a hearing, or otherwise \npursue her claim.  \n On February  8,  2024, the Claimant’s attorney filed with the Commission a motion to \nwithdraw from representing the Claimant in this matter because she had tried to reach her several \ntimes  by  telephone,  but  her  attempts  had  been  unsuccessful.    There  being  no  objection  to  the \nmotion for the Claimant’s attorney to withdraw as counsel of record for the Claimant in this matter, \nthe Full Commission entered an Order on March 20, 2024, granting the motion.      \n\nVOYLES-H306652 \n \n3 \n \nStill, there was no request for a hearing made by the Claimant.   \nTherefore,  on or  about April 24,  2024, the  Respondents filed a Respondents’ Motion  to \nDismiss, which  was  accompanied  by a Brief in  Support of Motion  to  Dismiss,  with  the \nCommission,  along  with a Certificate  of  Service.  Per this documentation, the Respondents’ \nattorney stated that he had served a copy of the foregoing pleading on the Claimant\n1\n by depositing \na copy thereof in the United States Mail.        \n The Commission sent a letter to the Claimant on April 25, 2024, informing Claimant of the \nRespondents’ motion, and a deadline of twenty (20) days, for filing a written response.  Said letter \nwas mailed to the Claimant by both first-class and certified mail.  Tracking information received \nby the Commission from the Postal Service shows that they delivered this parcel of mail to the \nClaimant  on  April 27,  2024.    The  letter  sent  by  first-class  mail  has  not  been  returned  to  the \nCommission.   \n As of late, there has not been any type of reply from the Claimant.  \n Pursuant to a Hearing Notice dated May 16, 2024, the Commission notified the parties that \nthe matter had been set for a hearing on the Respondents’ motion to dismiss.  Said hearing was \nscheduled for Friday, July 26, 2024, in Hot Springs, Arkansas. \nSaid letter was mailed to the Claimant by both first-class and certified mail.  Information \nreceived from the Postal Service shows that they delivered the notice of hearing to the Claimant \non May 18, 2024.  The letter sent by first-class mail has not been returned to the Commission.   \nBased on all of the foregoing tracking information received by the Commission from the \nPostal Service, I find that the Claimant received proper notice of the dismissal hearing.  \n \n1\n Although the Certificate of Service incorrectly indicates that the pleading was mailed to the Claimant’s \nattorney, the Claimant is the named recipient for delivery of said pleading.   \n\nVOYLES-H306652 \n \n4 \n \nNevertheless, the hearing was held as scheduled.  Counsel for the Respondents appeared \nat  the  hearing.    However,  the  Claimant did  not attend the  hearing.   The Respondents’ counsel \nargued that  the Claimant  has  failed  to  prosecute  her claim for workers’ compensation benefits.  \nCounsel further noted that the Claimant has not taken any affirmative action to prosecute her claim \nwell over six (6) months.  More specifically, counsel noted that the Claimant has not taken any \naction to advance her claim since the filing of the Form AR-C, which was done more than a year \nago.  Counsel for the Respondents also stated that the Claimant has not responded to the notices \nof  this  Commission.   Therefore, the Respondents’ attorney moved  that this claim be dismissed \npursuant to Ark. Code Ann. §11-9-702, and/or Commission Rule 099.13, without prejudice.  \nAdjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable  in  the \nRespondents’ request  for dismissal  of this initial claim for  benefits/compensation are  outlined \nbelow:  \nArk. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \n\nVOYLES-H306652 \n \n5 \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue her claim \nfor initial workers’ compensation benefits, but she has failed to do so.  Specifically, the Claimant \nhas  not  requested  a  hearing  or  otherwise made  any  effort to  prosecute  her claim for workers’ \ncompensation benefits since the filing of the Form AR-C, over more than a year ago; and nor has \nshe resisted the motion for dismissal or even responded to the notices of this Commission.  Hence, \nthe evidence preponderates that the Claimant has failed to prosecute this claim for initial workers’ \ncompensation benefits.  Moreover, considering that the Claimant did not respond to the notices of \nthis Commission and did not appear at the dismissal hearing, I am convinced that the Claimant has \nabandoned her claim for workers’ compensation benefits.          \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant to Ark. Code \nAnn.§11-9-702 (a)(4) and Commission Rule 099.13, this claim for initial workers’ compensation \nbenefits should be dismissed without prejudice to the refiling within the limitation period specified \nunder the Arkansas Workers’ Compensation Act. \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704. \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n\nVOYLES-H306652 \n \n6 \n \n2. The Claimant has not requested a hearing since her former attorney filed the \nForm AR-C, which was done more than a year ago.  Hence, the evidence \npreponderates that the Claimant has failed to prosecute her claim for initial \nworkers’ compensation benefits based upon the relevant provisions of the \nspecified statute, Ark. Code Ann. §11-9-702 (a)(4), and Rule 099.13 of this \nCommission.       \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702 (a)(4), \nand  Commission  Rule  099.13,  to  the  refiling  of  it  within  the  limitation \nperiod specified by law.  \n \n                                              ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for initial workers’ compensation benefits.  This dismissal is pursuant to \nArk. Code Ann. §11-9-702(a)(4), and Commission Rule 099.13, without prejudice to the refiling  \nof this claim within the limitation period specified under the Act. \n          IT IS SO ORDERED. \n \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":11536,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H306652 DEBORAH VOYLES, EMPLOYEE CLAIMANT BELVEDERE NURSING REHAB CENTER, LLC, A SUBSIDARY OF CENTRAL ARKANSAS NURSING CENTERS, INC., EMPLOYER RESPONDENT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA (PA), INSURANCE CARRIER RESPONDENT ESIS, INC.,","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:52:16.996Z"},{"id":"alj-H201464-2024-07-30","awccNumber":"H201464","decisionDate":"2024-07-30","decisionYear":2024,"opinionType":"alj","claimantName":"Richelle Wortham","employerName":null,"title":"WORTHAM VS. ARCAREAWCC# H201464July 30, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WORTHAM_RICHELLE_H201464_20240730.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WORTHAM_RICHELLE_H201464_20240730.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n \nCLAIM NO. H201464 \nRICHELLE WORTHAM, EMPLOYEE    CLAIMANT \n \nARCARE, EMPLOYER      RESPONDENT \n \nTRAVELORS INDEMNITY CO. OF AMERICA  \nTPA/CARRIER       RESPONDENT \n \n           \n \n \nOPINION FILED JULY 30, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Batesville, \nArkansas, on July 24, 2024. \n \nClaimant is Pro Se and failed to appear. \n \nRespondents are represented by their attorney, Amy C. Markham, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on July 24, 2024, in Batesville, \nArkansas, in the Independence County Conference Room located in the basement of \nthe Independence County Court House, on respondent’s Motion to Dismiss for failure to \n\nprosecute pursuant to A.C.A. 11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act.  The claimant did not appear.  Claimant had filed a Form AR – C on \nor about November 9, 2023, contending that she had injured herself with injuries that \nincluded her lower back and buttock and that these injuries occurred during the course \nand scope of her employment.  A First Report of Injury had been previously filed on \nFebruary 16, 2022, which provided there was no physical injury.  An AR – 2 was filed on \nor about February 18, 2022, which stated there was no injury per statutory definition.  \nClaimant’s deposition was later taken, and the claimant was notified at the end of the \ndeposition that a Motion to Dismiss was going to be filed.     \n A Motion to Dismiss was filed by the respondents on May 13, 2024, requesting \nthat the matter be dismissed for failure to prosecute pursuant to A.C.A. 11-9-702(a) (4) \nand Rule 099.13.  The claimant has not requested a hearing to date and more than six \nmonths have passed since the filing of the original claim.     \n Appropriate notice was provided to the claimant notifying of a hearing on the \nMotion to Dismiss on July 24, 2024, in Batesville, Arkansas, and no response was filed \nby the claimant.  At the time of the hearing, Amy C. Markham appeared on behalf of the \nRespondents and asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for \nthe Respondents, it is found that this matter should be dismissed without prejudice, for \nfailure to prosecute pursuant to A.C.A. 11-9-702 and Rule 099.13 of the Arkansas \nWorkers’ Compensation Act. \n\nORDER \n Pursuant to the above statement of the case, there is no alternative but to \ndismiss this claim in its entirety, without prejudice, for failure to prosecute. \nIT IS SO ORDERED \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2841,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201464 RICHELLE WORTHAM, EMPLOYEE CLAIMANT ARCARE, EMPLOYER RESPONDENT TRAVELORS INDEMNITY CO. OF AMERICA TPA/CARRIER RESPONDENT OPINION FILED JULY 30, 2024 Hearing before Administrative Law Judge James D. Kennedy in Batesville, Arkansas, on July 24, 2024....","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:52:19.130Z"},{"id":"alj-H305736-2024-07-29","awccNumber":"H305736","decisionDate":"2024-07-29","decisionYear":2024,"opinionType":"alj","claimantName":"Latonya Denney","employerName":null,"title":"DENNEY VS. PILOT TRAVEL CENTERS LLCAWCC# H305736July 29, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DENNEY_LATONYA_H305736_20240729.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DENNEY_LATONYA_H305736_20240729.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H305736 \n \nLATONYA DENNEY,  Employee                                                                CLAIMANT \n \nPILOT TRAVEL CENTERS LLC, Self-Insured Employer                          RESPONDENT                     \n \n                                                                                                                                  \n \n \n OPINION/ORDER FILED JULY 29, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney, Little Rock, Arkansas; although \nnot present at hearing. \n \nRespondents represented by KAREN H. MCKINNEY,  Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n This  claim  involves  an  injury  date  of  August  10,  2023.    Respondent  originally \naccepted a compensable injury to the claimant on that date, but after further investigation \ndenied the claim by letter dated September 29, 2023.  Thereafter, on November 14, 2023, \nAttorney Laura Beth York filed Form AR-C requesting compensation benefits.  After the \nfiling  of  that  form,  both  parties  propounded  discovery  on  the  other  party.    Respondent \nanswered  claimant’s  discovery  requests  on  January  22,  2024.    Claimant  has  not \nresponded to the respondent’s discovery request. \n On May 2, 2024, claimant filed a change of physician request, but this was denied \n\nDenney (H305736) \n \n2 \n \ndue to the fact that respondent had controverted the claim.  No further action was taken \nuntil respondent filed a Motion to Dismiss on May 15, 2024.  A hearing was scheduled on \nthe respondent’s Motion to Dismiss for July 22, 2024.  Notice of the hearing was sent to \nclaimant by certified mail and was delivered on June 12, 2024.  Claimant did not appear \nat the hearing.  In addition, in a letter dated June 4, 2024, Attorney York indicated that \nclaimant had no objection to the Motion to Dismiss without prejudice.   \n After my review of the respondent’s motion, claimant’s response thereto, and all \nother matters properly before the Commission, I find that respondent’s motion to dismiss \nthis claim should be and hereby is granted.  This dismissal is pursuant to Commission \nRule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2535,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305736 LATONYA DENNEY, Employee CLAIMANT PILOT TRAVEL CENTERS LLC, Self-Insured Employer RESPONDENT OPINION/ORDER FILED JULY 29, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Claimant represented...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:10.801Z"},{"id":"alj-H305999-2024-07-29","awccNumber":"H305999","decisionDate":"2024-07-29","decisionYear":2024,"opinionType":"alj","claimantName":"Angel Orozco","employerName":null,"title":"OROZCO VS. NEWLY WEDS FOODS, INC.AWCC# H305999July 29, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/OROZCO_ANGEL_H305999_20240729.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OROZCO_ANGEL_H305999_20240729.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H305999 \n \nANGEL OROZCO,  Employee                                                                        CLAIMANT \n \nNEWLY WEDS FOODS, INC., Employer                                                RESPONDENT                                 \n \nTRAVELERS INSURANCE COMPANY                                                  RESPONDENT                                                                                         \n \n \n OPINION/ORDER FILED JULY 29, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by GUY ALTON WADE,  Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n This claim involves a compensable injury to claimant’s fingers which occurred on \nNovember 15, 2022.  Respondent accepted the injury as compensable and paid some \ncompensation  benefits.    After a  Form  AR-C  was  filed  on  claimant’s  behalf  by  attorney \nMark Peoples, discovery was propounded to claimant.  No answers were forthcoming and \nAttorney Peoples subsequently filed a Motion to Withdraw as Counsel.  This motion was \ngranted by the Full Commission in an order filed February 26, 2024. \nOn  March  1,  2024,  respondent filed its Motion  to Dismiss.  A  hearing  was \nscheduled on the respondent’s motion for July 24, 2024. Notice of the hearing was sent \nto claimant at his last known address by certified mail and that notice was picked up at \n\nOrozco – H305999 \n \n2 \n \nthe  Post  Office on July  1,  2024.    Claimant did  not  appear  at  the  hearing  and  has  not \nresponded to the respondent’s motion. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nMotion  to  Dismiss should  be  and  hereby  is  granted.    This  dismissal  is  pursuant  to \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2279,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305999 ANGEL OROZCO, Employee CLAIMANT NEWLY WEDS FOODS, INC., Employer RESPONDENT TRAVELERS INSURANCE COMPANY RESPONDENT OPINION/ORDER FILED JULY 29, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansa...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:12.858Z"},{"id":"alj-H208397-2024-07-26","awccNumber":"H208397","decisionDate":"2024-07-26","decisionYear":2024,"opinionType":"alj","claimantName":"Aniefiok Jacob","employerName":"Nucor Yamato Steel Co","title":"JACOB VS. NUCOR YAMATO STEEL CO. AWCC# H208397 July 26, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Jacob_Aniefiok_H208397_20240726.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jacob_Aniefiok_H208397_20240726.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208397 \n \n \nANIEFIOK JACOB, EMPLOYEE CLAIMANT \n \nNUCOR YAMATO STEEL CO., \nEMPLOYER RESPONDENT \n \nARCH INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED JULY 26, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on July 25,  2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant  represented  by  Mr. Scott  Hunter,  Jr.,  Attorney  at  Law, Jonesboro, \nArkansas (neither appearing). \n \nRespondents represented by Mr. Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on July 25, 2024, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant failed to appear \nat  the  hearing;  and  his  counsel  waived  his  appearance.  Admitted  into  evidence \nwas Respondents’  Exhibit  1,  correspondence  and  forms  related  to  this  claim, \nconsisting of one index page and four pages thereafter.  Also, in order to address \nadequately   this   matter   under   Ark.   Code   Ann. § 11-9-705(a)(1)   (Repl. \n2012)(Commission  must  “conduct  the  hearing    .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe record documents from the Commission’s file on the claim, consisting of 34 \n\nJACOB – H208397 \n \n2 \n \npages.   In accordance  with Sapp  v.  Tyson  Foods,  Inc.,  2010  Ark. App.  517, ___ \nS.W.3d  ___,  these  documents  have  been  served  on  the  parties  in  conjunction \nwith this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on December  15, 2022, \nClaimant purportedly suffered an injury to his lower back while driving a forklift at \nwork  on January 21,  2020.   According  to  the  Form  AR-2  that  was also filed  on \nDecember  15,  2022, Respondents controverted the  claim in  its  entirety,  claiming \nthat  the statute  of  limitations  barred  the  claim  and  that  the  Commission  lacked \njurisdiction  over  the  matter  since  Claimant  was  hired  in  Tennessee  and  the \nalleged injury purportedly occurred there. \n On November  30,  2022,  through  counsel,  Claimant  filed  a  Form  AR-C.  \nTherein, he asserted that his client was entitled to the full range of initial benefits \nas  the  result  of  his  alleged  back  injury,  which  was  represented  to have occurred \non  January  20,  2020.    In  an  amended  Form  AR-C  filed  on  December  14,  2022, \nthe alleged date of injury was changed to January 21, 2020. \n Counsel sent a letter to the Commission on January 5, 2023, requesting a \nhearing on  the  claim.   The  file  was  assigned  to  me  on  January  6,  2023;  and  on \nJanuary    12,    2023,    I    issued    prehearing    questionnaires    to    the    parties.  \nRespondents’ co-counsel entered his appearance on January 17, 2023.  Claimant \nfiled  a  timely  response  thereto  on January  27,  2023,  and  Respondents  followed \n\nJACOB – H208397 \n \n3 \n \nsuit on February 2, 2023.  Following a prehearing telephone conference on March \n6, 2023, I issued a prehearing order on March 7, 2023, that scheduled a hearing \nfor May 19, 2023, on the following issues: \n1. Whether the Commission has jurisdiction over this claim. \n2. Whether this claim is barred by the statute of limitations. \n3. Whether Claimant sustained  a  compensable  injury  to  his  back  by \nspecific incident. \n4. Whether  Claimant is  entitled  to reasonable  and  necessary  medical \ntreatment of his alleged back injury. \n5. Whether Claimant is entitled to temporary total disability benefits. \n6. Whether Claimant is entitled to an impairment rating and permanent \npartial disability benefits pursuant thereto. \n7. Whether Claimant is entitled to a controverted attorney’s fee. \nHowever, on May  18, 2023,  Claimant  requested  that  the hearing be  cancelled in \norder  to  allow  the  parties  time  to  pursue  settlement.   The  request  was  granted, \nand the file was returned to the Commission’s general files. \n On April  24,  2024,  Claimant’s  counsel  again  wrote  the  Commission, \nrequesting a hearing on the claim.  The file was reassigned to me by the Clerk of \nthe Commission on April 30; 2024; and on May 1, 2024, I again issued prehearing \nquestionnaires to the parties.  Claimant filed a timely response thereto on May 20, \n2024,  and  Respondents  did  as  well  on  June  10,  2024.   During the  July  1,  2024, \n\nJACOB – H208397 \n \n4 \n \nprehearing telephone conference, the parties agreed that another conference was \nneeded.  This was set by agreement for July 15, 2024. \n However, on July 8, 2024, the office of Claimant’s counsel emailed me the \nfollowing: \nJudge Fine, \n \nWe  have  spent  a  considerable  amount  of  time  discussing  this \nmatter with our Claimant and after thoughtful consideration, he has \ndecided that he does not want to continue to pursue this matter any \nfurther.    We  are  unsure  of  the  best  route  to  take  as  far  as \nproceeding forward with a Motion to Dismiss without prejudice or if \nwe should allow it to sit in general files for the 6 month time frame \nbefore  proceeding.    If  you  will,  please  advise  and  we  will  act \npromptly.  Thank you, Your Honor! \n \nI replied to the parties that same day: \nI   am   interpreting   this   communication   as   (1)   a   withdrawal   of \nClaimant’s hearing request and (2) his lack of objection to dismissal \nof  his  case  without  prejudice.    I  will  hold  the  file  in  my  office  for \nseven days.  If a motion to dismiss is filed within that time frame, I \nwill expedite the hearing and hold it here in Little Rock.  Otherwise, \nI  will  simply  return  this  file  to  the  Commission’s  general  files.  \nThanks \n \nClaimant’s counsel replied to this: \nJudge Fine, \n \nWith  regard  to  your  below  email,  we  are  withdrawing  our  hearing \nrequest and will not be objecting to a dismissal of his case without \nprejudice. \n \n In  prompt  response  to  my  communication,  Respondents  on  July  8,  2024, \nfiled the instant Motion to Dismiss.  Because of Claimant’s waiver of objection to \ndismissal,  no  formal  response  to  the  motion  was  sought  from  him.    Instead,  as \n\nJACOB – H208397 \n \n5 \n \nindicated, a hearing was set for July 25, 2024, at 10:00 a.m. at the Commission in \nLittle  Rock.   The July  17,  2024, Notice  of  Hearing was  sent  to  Claimant  via \ncertified  mail.  He  claimed  the mailing  on  July  23, 2024.  The  attorneys received \ntheir copies of the notice via email. \n The hearing on the Motion to Dismiss proceeded as scheduled on July 25, \n2024.  Again, both Claimant and his attorney failed to appear at the hearing.  But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  the \naforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Respondents have proven by a preponderance of the evidence that \nClaimant has failed to prosecute his claim under AWCC R. 099.13. \n\nJACOB – H208397 \n \n6 \n \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial \nbenefits  is  hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because of his stated intention on July 8, \n2024,  that  he  would  not  be  pursuing it any  further.    Thus,  the  evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \n\nJACOB – H208397 \n \n7 \n \nit  is  unnecessary  to  address  the  application  of Ark.  Code  Ann. §  11-9-702(a)(4) \n(Repl. 2012). \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":10367,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208397 ANIEFIOK JACOB, EMPLOYEE CLAIMANT NUCOR YAMATO STEEL CO., EMPLOYER RESPONDENT ARCH INS. CO., CARRIER RESPONDENT OPINION FILED JULY 26, 2024 Hearing before Administrative Law Judge O. Milton Fine II on July 25, 2024, in Little Rock, Pulaski County, Ark...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:52:06.676Z"},{"id":"full_commission-H000613-2024-07-25","awccNumber":"H000613","decisionDate":"2024-07-25","decisionYear":2024,"opinionType":"full_commission","claimantName":"Sabrina Daniels","employerName":"Aramark Campus Inc","title":"DANIELS VS. ARAMARK CAMPUS INC. AWCC# H000613 JULY 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Daniels_Sabrina_H000613_20240725.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Daniels_Sabrina_H000613_20240725.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H000613 \nSABRINA D. DANIELS, EMPLOYEE        CLAIMANT \nARAMARK CAMPUS INC., EMPLOYER           RESPONDENT \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nSEDGWICK CLAIMS MG’T. SERVICES, INC., \nINSURANCE CARRIER/TPA                  RESPONDENT \n \nORDER FILED JULY 25, 2024 \nUpon  review  before  the  FULL  COMMISSION  in  Little  Rock,  Pulaski  County, \nArkansas.  \n \nClaimant appeared pro se. \n \nRespondents represented by the HONORABLE RANDY P. MURPHY, Attorney at \nLaw, Little Rock, Arkansas.  \nORDER \n  Presently before the Full Commission is Respondents’ Motion to \nDismiss Claimant’s Appeal of an administrative law judge’s opinion dated May 14, \n2024 due to untimely filing of the Notice of Appeal.  \n  Ark. Code Ann. § 11-9-711(a)(1) states:  \nA compensation order or award of an administrative law \njudge or a single commissioner shall become final unless a \nparty to the dispute shall, within thirty (30) days from the \nreceipt by him or her of the order or award, petition in writing \nfor a review by the full commission of the order or award. \n(emphasis added).  \n\nDaniels – H000613 \n2 \n \n  The Claimant received the issued Opinion on May 24, 2024, according \nto the signed USPS green card, which would make the notice of appeal due on \nJune 23, 2024.  Since June 23, 2024, fell on Sunday, the Claimant’s notice of \nappeal was not due until Monday, June 24, 2024.  The Claimant emailed the notice \nof appeal to the Commission on June 26, 2024.  \n  After consideration of Respondents’ motion and all other matters \nproperly before the Commission, we find that the Respondents’ Motion to Dismiss \nClaimant’s Appeal should be and is hereby granted.  \n IT IS SO ORDERED.   \n \n \n \n \n \n \n \n_______________________________\n \n  \n \nSCOTTY DALE DOUTHIT, Chairman\n \n           \n \n \n_\n______________________________\n \n   \nM. SCOTT WILLHITE, Commissioner\n  \n \n \n                       \n__________________________\n_____\n \n \n  \n  \nMICHAEL R. MAYTON, Commissioner","textLength":2015,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H000613 SABRINA D. DANIELS, EMPLOYEE CLAIMANT ARAMARK CAMPUS INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ SEDGWICK CLAIMS MG’T. SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT ORDER FILED JULY 25, 2024 Upon review before the FULL COMMISSI...","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.230Z"},{"id":"alj-H302358-2024-07-25","awccNumber":"H302358","decisionDate":"2024-07-25","decisionYear":2024,"opinionType":"alj","claimantName":"Tommy Flaherty","employerName":null,"title":"FLAHERTY VS. E T W ENTERPRISES INC.AWCC# H302358July 25, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FLAHERTY_TOMMY_H302358_20240725.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FLAHERTY_TOMMY_H302358_20240725.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H302358 \n \nTOMMY D. FLAHERTY, EMPLOYEE   CLAIMANT \n \nE T W ENTERPRISES INC., EMPLOYER RESPONDENT \n \nAMERISAFE RISK SERVICES INC./.INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED JULY 25, 204 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by ZACHARY F. RYBURN, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  April 11, 2023, claimant filed Form AR-C, alleging a compensable injury on March 29, \n2023.   Claimant was represented at the time by Matthew J. Ketcham, who filed a Motion to Withdraw \non March 11, 2024 and was allowed to withdraw on March 28, 2024.  No other attorney entered an \nappearance on claimant’s behalf.    \nOn March 11, 2024, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for July 23, \n2024.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice was returned unclaimed on June 28, 2024.   Claimant did not \nrespond to Respondent’s motion and did not appear in person at the hearing on July 23, 2024.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \n\nFlaherty-H302358 \n \n2 \n \nof response and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2186,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302358 TOMMY D. FLAHERTY, EMPLOYEE CLAIMANT E T W ENTERPRISES INC., EMPLOYER RESPONDENT AMERISAFE RISK SERVICES INC./.INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED JULY 25, 204 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebas...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:51:58.253Z"},{"id":"alj-H307870-2024-07-25","awccNumber":"H307870","decisionDate":"2024-07-25","decisionYear":2024,"opinionType":"alj","claimantName":"Joseph Johnson","employerName":null,"title":"JOHNSON VS. CALICO COUNTY RESTAURANTAWCC# H307870July 25, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JOHNSON_JOSEPH_H307870_20240725.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_JOSEPH_H307870_20240725.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H307870 \n \nJOSEPH JOHNSON, EMPLOYEE   CLAIMANT \n \nCALICO COUNTY RESTAURANT, EMPLOYER RESPONDENT \n \nAUTO-OWNERS INSURANCE COMPANY/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED JULY 25, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by MAX M. HORNER JR., Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On December 5, 2023, claimant filed Form AR-C, alleging a compensable injury on June 14, \n2023.   Claimant was not represented by an attorney when the AR-C was filed, and is still pro se.   \nOn June 7, 2024, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for July 23, \n2024.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice was delivered to claimant on June 14, 2024.    Claimant did not \nrespond to respondent’s motion and did not appear in person at the hearing on July 23, 2024.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \n\nJohnson-H307870 \n \n2 \n \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2056,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H307870 JOSEPH JOHNSON, EMPLOYEE CLAIMANT CALICO COUNTY RESTAURANT, EMPLOYER RESPONDENT AUTO-OWNERS INSURANCE COMPANY/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED JULY 25, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washi...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:00.317Z"},{"id":"alj-H106381-2024-07-25","awccNumber":"H106381","decisionDate":"2024-07-25","decisionYear":2024,"opinionType":"alj","claimantName":"Derwin Lee","employerName":null,"title":"LEE VS. DEPT. OF CORRECTIONAWCC# H106381July 25, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LEE_DERWIN_H106381_20240725.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LEE_DERWIN_H106381_20240725.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H106381 \n \nDERWIN LEE, EMPLOYEE        CLAIMANT \n \nDEPT. OF CORRECTION, SELF-INSURED EMPLOYER        RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nTHIRD PARTY ADMINISTRATOR                RESPONDENT \n  \n \n \nOPINION FILED 25 JULY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 25 July 2024 in McGehee, Arkansas. \n \nThe pro se claimant did not appear. \n \nMr. Charles McLemore appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in \nMcGehee, Arkansas, on 25 July 2024. This case relates to an alleged workplace injury \nsustained on or about 31 July 2021. The Commission’s file reflects filings through the life of \nthis claim, including a Prehearing Order dated 3 March 2022. Subsequent to the entry of \nthat Order, the claimant filed a letter response, file-marked on 9 March 2022, indicating \nthat he “would not like to pursue” his claim. The matter was then returned to the \nCommission’s General Files. \n On 5 June 2024, the respondents requested a dismissal of this matter for want of \nprosecution. See Exhibit No 1. Letters providing notice of that motion and notice of the \nhearing were sent to the claimant, consistent with the Commission’s practice. As I noted at \nthe hearing, the claimant contacted the Commission after receiving notice of the motion \n\nD. Lee- H106381 \n2 \n \nand hearing, and, as indicated in an email appended to the Commission’s file, indicated \nthat he “thought his claim was already closed” and that he did not object to the dismissal. \nThe respondents appeared on 25 July 2024, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of their \nmotion. And the claimant did not appear at the hearing to resist the dismissal of this claim. \nIndeed, he earlier voiced his agreement with the claim’s dismissal. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2781,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H106381 DERWIN LEE, EMPLOYEE CLAIMANT DEPT. OF CORRECTION, SELF-INSURED EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED 25 JULY 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Adm...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:02.388Z"},{"id":"alj-H305670-2024-07-25","awccNumber":"H305670","decisionDate":"2024-07-25","decisionYear":2024,"opinionType":"alj","claimantName":"Christina Aguilar","employerName":null,"title":"AGUILAR VS. RAYS HOSPITALITY, LLCAWCC# H305670July 26, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/AGUILAR_CHRISTINA_H305670_20240725.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"AGUILAR_CHRISTINA_H305670_20240725.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H305670 \n \nCHRISTINA AGUILAR,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nRAYS HOSPITALITY, LLC,  \nEMPLOYER                                                                                                         RESPONDENT  \n \nFIRSTCOMP INS. CO./ \nMARKEL SERVICE, INC. \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \nORDER TO DISMISS WITHOUT PREJUDICE \nFILED JULY 26, 2024 \n \nHearing conducted on Thursday, July 25, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Texarkana, \nMiller County, Arkansas. \n \nThe claimant, Ms. Christina Aquilar, pro se, of Texarkana, Bowie County, Texas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable Randy P. Murphy, Anderson, Murphy & \nHopkins, Little Rock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A  hearing was  conducted  on Thursday,  July  25,  2024,  to  determine  whether  this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024) \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n        On April 19, 2024, the respondents filed with the Commission a motion to dismiss this claim \nwithout prejudice (MTD) pursuant to the aforementioned statute and Commission rule. Thereafter, \npursuant  to  the  applicable  law the  claimant was provided  due  and  legal  notice  of  both the \nrespondents’ MTD, as well as notice of the subject hearing to her last known of address on record \nwith the Commission via the United States Postal Service (USPS), Certified Mail, Return Receipt \n\nChristina Aquilar, AWCC No. H305670 \n2 \n \nRequested, which she received on May 21, 2024. (Commission Exhibit 1). Thereafter, the claimant \nfailed and/or refused to object and/or respond to the respondents’ MTD or to the Commission’s \nhearing notice in any way. Moreover, the claimant failed and/or refused to appear at the subject \nhearing. (Commission Exhibit 1; Respondents’ Exhibit 1).  \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has failed and/or refused to prosecute her claim at this time. \n        Therefore, after a thorough consideration of the applicable law as applied to the facts of this \nclaim, the issues, and other relevant matters of record, as well as the representations of credible \ncounsel I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of the respondents’ motion to dismiss without \nprejudice filed with  the  Commission  on April  19,  2024,  as  well  as notice  of the subject \nhearing date, time, and place, the claimant failed and/or refused to object and/or to respond \nto the motion in any way, and she failed and/or refused to appear at the subject hearing. \nTherefore, she is deemed to have waived her right to a hearing on the respondents’ motion \nherein.  \n \n3. The preponderance  of  the  evidence  compels the  decision that the respondents’ subject \nmotion  to  dismiss  without  prejudice  filed  April 19,  2024,  should  be  and  hereby  is \n\nChristina Aquilar, AWCC No. H305670 \n3 \n \nGRANTED; and this claim hereby is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n\nChristina Aquilar, AWCC No. H305670 \n4 \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5116,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305670 CHRISTINA AGUILAR, EMPLOYEE CLAIMANT RAYS HOSPITALITY, LLC, EMPLOYER RESPONDENT FIRSTCOMP INS. CO./ MARKEL SERVICE, INC. CARRIER/TPA RESPONDENT ORDER TO DISMISS WITHOUT PREJUDICE FILED JULY 26, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:04.532Z"},{"id":"alj-H303454-2024-07-25","awccNumber":"H303454","decisionDate":"2024-07-25","decisionYear":2024,"opinionType":"alj","claimantName":"Kennith Smith","employerName":null,"title":"SMITH VS. CITY OF LEWISVILLEAWCC# H303454July 26, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SMITH_KENNITH_H303454_20240725.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SMITH_KENNITH_H303454_20240725.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303454 \n \nKENNITH L. SMITH,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nCITY OF LEWISVILLE,  \nEMPLOYER                                                                                                         RESPONDENT  \n \nARKANSAS MUNICIPAL LEAGUE  \nWORKERS’ COMPENSATION TRUST/ \nARK. MUNICIPAL LEAGUE \nCARRIER/TPA                                                                                                    RESPONDENT                    \n                                                                                                                     \n \nORDER TO DISMISS WITHOUT PREJUDICE \nFILED JULY 26, 2024 \n \nHearing conducted on Thursday, July 25, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Texarkana, \nMiller County, Arkansas. \n \nThe claimant, Mr. Kennith L. Smith, pro se, of Lewisville, Lafayette County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Mary K. Edwards, Attorney, Arkansas \nMunicipal League, Little Rock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n          A  hearing was  conducted  on Thursday,  July  25,  2024,  to  determine  whether  this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024) \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n        On April 22, 2024, the respondents filed with the Commission a motion to dismiss this claim \nwithout prejudice (MTD) pursuant to the aforementioned statute and Commission rule. Thereafter, \npursuant  to  the  applicable  law the  claimant was provided  due  and  legal  notice  of  both the \nrespondents’ MTD, as well as notice of the subject hearing to his last known of address on record \nwith the Commission via the United States Postal Service (USPS), Certified Mail, Return Receipt \n\nKennith L. Smith, AWCC No. H303454 \n2 \n \nRequested,  which the  claimant  received  on  May 14,  2024.  (Commission Exhibit  1). Thereafter, \nthe claimant responded to the subject MTD via a handwritten letter filed with the Commission on \nMay 6, 2024, wherein in essence he stated he was still undergoing pain management treatment, \nand he needed, “just a little financial help to get me by and through.” (Commission Exhibit 2). The \nclaimant’s letter did not identify any issues that were ripe for a hearing, nor did he request a hearing \non  any  issue(s).  (Id.).  The  claimant  failed  and/or  refused  to  appear  at  the  hearing  so  he  did  not \nexplain or elaborate in any way concerning the statements he made in his letter. (Commission’s \nExhibits 1 & 2; Respondents’ Exhibit 1). \n        The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4) (2024 Lexis Replacement), as well as our \ncourt of appeals’ ruling in Dillard vs. Benton County Sheriff’s Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App. 2004),  the  Commission  scheduled  and  conducted  a  hearing  on the \nrespondents’ MTD. Rather  than  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the \npreponderance of the evidence introduced at the hearing and contained in the record conclusively \nreveals the claimant has to date failed and/or refused to prosecute his claim at this time. \n        Therefore, after a thorough consideration of the applicable law as applied to the facts of this \nclaim, the issues, and other relevant matters of record, as well as the representations of credible \ncounsel I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n\nKennith L. Smith, AWCC No. H303454 \n3 \n \n2. After having received due and legal notice of the respondents’ motion to dismiss without \nprejudice filed with  the  Commission  on April 22,  2024,  as  well  as notice  of the  subject \nhearing date, time,  and  place, the  claimant failed  and/or  refused to  appear at  the subject \nhearing. Therefore, he is deemed to have waived his right to a hearing on the respondents’ \nmotion herein.  \n \n3. The preponderance  of  the  evidence  compels the  decision that the respondents’ subject \nmotion  to  dismiss  without  prejudice  filed  April 22,  2024,  should  be  and  hereby  is \nGRANTED; and this claim hereby is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed by Ark.  Code  Ann. Section  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n        If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n\nKennith L. Smith, AWCC No. H303454 \n4 \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5483,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303454 KENNITH L. SMITH, EMPLOYEE CLAIMANT CITY OF LEWISVILLE, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE WORKERS’ COMPENSATION TRUST/ ARK. MUNICIPAL LEAGUE CARRIER/TPA RESPONDENT ORDER TO DISMISS WITHOUT PREJUDICE","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:08.742Z"},{"id":"alj-H206243-2024-07-24","awccNumber":"H206243","decisionDate":"2024-07-24","decisionYear":2024,"opinionType":"alj","claimantName":"Mickey Mcnair","employerName":"Kimball & Thompson Produce, Inc","title":"MCNAIR VS. KIMBALL & THOMPSON PRODUCE, INC. AWCC# H206243 & H208493 & H208492 & H206220 July 24, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MCNAIR_MICKEY_H206243H208493H208492H206220_20240724.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCNAIR_MICKEY_H206243H208493H208492H206220_20240724.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n    \n \n          CLAIM NO. H206243 \n \nMICKEY T. MCNAIR, Employee        CLAIMANT \n \nCENTURY LEASING, Uninsured Employer RESPONDENT #1 \n \nKIMBALL & THOMPSON PRODUCE, INC., Employer     RESPONDENT #2 \n \nAMTRUST NORTH AMERICA, Carrier                                                 RESPONDENT #2 \n \n   \n                                                   CLAIM NO. H208493 \n \nMICKEY T. MCNAIR, Employee                                                                          CLAIMANT \n \nKIMBALL & THOMPSON PRODUCE, INC., Employer                                  RESPONDENT \n \nAMTRUST NO. AMERICA, Carrier                                                             RESPONDENT \n \n     \n                                        CLAIM NOS. H208492/H206220 \n \nMICKEY T. MCNAIR, Employee                                                                        CLAIMANT \n \nKIMBALL & THOMPSON PRODUCE, INC., Employer                                 RESPONDENT \n \nSUMMIT CONSULTING, Carrier                                                                RESPONDENT \n \n \n \n OPINION FILED JULY 24, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by DAVID L. SCHNEIDER, Attorney, Fort Smith, Arkansas. \n \nRespondent, Century Leasing, not represented by counsel and not appearing at hearing. \n \nRespondents, Kimball & Thompson Produce and AmTrust North America, represented \nby WILLIAM C. FRYE, Attorney, No. Little Rock, Arkansas. \n \n\nMcNair – H206243/H208492/H208493/H206220 \n \n2 \n \nRespondents,  Kimball  &  Thompson  Produce  and    Summit  Consulting,  represented  by \nGUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On June 26, 2024, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on April 3, 2024 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations and \nissues: \nH206243 (October 8, 2020 DOI) \nStipulations: \nNone \nIssues: \n1. Jurisdiction. \n2. Whether claimant was an employee of Century Leasing (hereinafter \n“Century” on October 8, 2020. \n \n3. Whether claimant was a dual employee of Century and Kimball & \nThompson Produce (hereinafter “K&T” on October 8, 2020. \n \n4. Whether claimant suffered a compensable injury to his right shoulder  \nand right hand on October 8, 2020. \n \n5. Claimant’s entitlement to medical benefits. \n \n6. Claimant’s entitlement to temporary total disability benefits. \n \n7. Compensation rate. \n \n8. Attorney’s fee. \n \n\nMcNair – H206243/H208492/H208493/H206220 \n \n3 \n \n \nH208493 (January 8, 2021 DOI) \n \n Stipulations: \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this  \nclaim. \n \n1. The employee/employer/carrier relationship existed between the claimant,  \nK&T, and Technology Insurance on January 8, 2021.    \n \n Issues: \n \n1. Compensability of injury to claimant’s right shoulder on January 8, 2021 \n \n2. Related medical. \n \n3. Claimant’s entitlement to temporary total disability benefits. \n \n4. Attorney’s fee. \n \nH208492 (February 5, 2022 DOI) \n \nStipulations: \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this  \nclaim. \n \n2. The employee/employer/carrier relationship existed between the claimant, \nK&T and Bridgefield Insurance on March 5, 2022. \n \n Issues: \n \n1. Compensability of injury to claimant’s right shoulder on February 5, 2022. \n \n2. Related medical. \n \n3. Claimant’s entitlement to temporary total disability benefits. \n \n4. Attorney’s fee. \n \nH206220 (August 23, 2022) \n \nStipulations: \n \n\nMcNair – H206243/H208492/H208493/H206220 \n \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this  \nclaim. \n \n2. The employee/employer/carrier relationship existed between the claimant, \nK&T, and Bridgefield Insurance on August 23, 2022. \n \n  \n Issues: \n \n1. Compensability of injury to claimant’s right shoulder on August 3, 2022. \n \n2. Related medical. \n \n3. Claimant’s entitlement to temporary total disability benefits. \n \n4. Attorney’s fee. \n \nClaimant’s contentions are set forth in his pre-hearing questionnaire attached  \nto the pre-hearing order marked as Commission Exhibit #1 as Exhibit 1. \n Century Leasing did not set forth any contentions. \n Respondent,  Kimball  &  Thompson  and  Technology  Insurance  Company’s  \ncontentions are set forth in its pre-hearing questionnaire attached to the pre-hearing order \nmarked as Commission Exhibit #1 as Exhibit 2. \n Respondent,  Kimball  &  Thompson  and  Bridgefield  Insurance  Company’s \ncontentions are set forth in its pre-hearing questionnaire attached to the pre-hearing order \nmarked as Commission Exhibit #1 as Exhibit 3. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nMcNair – H206243/H208492/H208493/H206220 \n \n5 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non April  3,  2024 and  contained  in  a  pre-hearing  order  filed  that  same  date  are  hereby \naccepted as fact. \n 2.    Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he \nsuffered a compensable injury to his right shoulder or right hand on October 8, 2020. \n 3.      Claimant  has  failed  to  prove  by  a preponderance  of  the  evidence  that  he \nsuffered a compensable injury to his right shoulder on January 8, 2021. \n 4.        Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he \nsuffered a compensable injury to his right shoulder on February 5, 2022. \n 5.        Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he \nsuffered a compensable injury to his right shoulder on August 23, 2022. \n \n FACTUAL BACKGROUND \n In July 2020, claimant responded to a job listing on Craig’s List.  He testified that \nhe went to Respondent 2’s office in Lowell where he was given an application and various \nforms to complete.  The employment application had Respondent 1’s name on it, but the \nother forms, mostly dealing with training and policy of Respondent 2, had Respondent 2’s \nname on them.   These documents were submitted into evidence as Claimant’s Exhibit \n#2. \n Claimant completed the forms on Respondent 2’s premises and was sent to a clinic \nfor a drug test.  The drug screen was negative and claimant was hired that same day.  \nClaimant  testified  that  he  never  visited  the  office  of  Respondent  1  and  never  had  any \n\nMcNair – H206243/H208492/H208493/H206220 \n \n6 \n \ncontact with Respondent 1.   Claimant testified that he was paid by Respondent 1 until \nJanuary 2021 when he began receiving payment from Respondent 2.  Claimant testified \nthat although he knew Respondent 2 had a payroll service, he was not aware that he was \nsupposed to be an employee of Respondent 1 until December 2020.  He testified that he \nreceived  his  job  instructions  from  Kenny  Blalock,  who  was  the  route  manager  for \nRespondent 2.   \n Testifying at the hearing was Gina Brown, Chief Financial Officer for Respondent \n2.  She testified that Respondent 1 leases employees to Respondent 2 and that some of \nthose employees eventually become employees of Respondent 2.  She testified that in \nJanuary  2021  claimant  went  from  being  an  employee  of  Respondent  1  to  being  an \nemployee of Respondent 2. \n Claimant contends that at the time of his first injury on October 8, 2020, he was a \ndual  employee  of  Respondent  1  and  Respondent  2.    At  that  time  Respondent  1  was \nuninsured and Respondent 2 was provided workers’ compensation insurance by AmTrust \n(Carrier #1).  At the time of the other alleged injuries claimant was admittedly an employee \nof Respondent 2.  At the time of the injury on January 8, 2021, Respondent 2’s coverage \nwas still provided by AmTrust.  At the time of the third and fourth injuries on February 5, \n2022 and August 23, 2022, Respondent 2’s coverage was provided by Summit Consulting \n(Carrier #2).   \n Claimant’s job duties were to drive a box truck, delivering produce to restaurants, \nschools, hospitals, nursing homes, Native American facilities, et cetera.  At many of these \nlocations,  claimant  had  to  get  the appropriate  produce  and  dolly  it in  to the  facility.   At \nsome locations such as the Cherokee Nation, the produce was unloaded by employees \n\nMcNair – H206243/H208492/H208493/H206220 \n \n7 \n \nof the facility. \n Claimant   has   filed   this   claim   contending   that   he   suffered   four   separate \ncompensable injuries to his right shoulder while performing his job.  He has requested \npayment  of  medical  benefits  relating  to  his  compensable  injuries  as  well  as  temporary \ntotal disability benefits and a controverted attorney fee. \n \nADJUDICATION \n Claimant contends that he suffered compensable injuries to his right shoulder and \nhand  on  October  8,  2020; his  right  shoulder  on  January  8,  2021; his  right  shoulder  on \nFebruary 5, 2022; and his right shoulder on August 23, 2022.  All of these claims are for \nspecific  injuries  identifiable  by  time  and  place  of  occurrence.  In  order  to  prove  a \ncompensable injury as the result of a specific incident that is identifiable by time and place \nof occurrence, a claimant must establish by a preponderance of the evidence (1) an injury \narising out of and in the course of employment; (2) the injury caused internal or external \nharm to the body which required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings establishing an injury; and (4) the injury \nwas caused by a specific incident identifiable by time and place of occurrence.  Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet his burden of proof for all \nfour injuries. \n Claimant has alleged that he suffered four separate compensable injuries.  Each \nof these injuries involves his right shoulder (the first injury also involves his right hand).  \n\nMcNair – H206243/H208492/H208493/H206220 \n \n8 \n \nSome  of  the  evidence  presented  is  relevant  to  more  than  one  particular  injury.    For \ninstance, prior to discussing the merits of each particular claim, I note the following with \nrespect to claimant’s credibility.  Claimant acknowledged that from 2007 through 2015 he \nwas  incarcerated  for  endangering  the  welfare  of  a  minor.    Claimant  was  subsequently \ncharged with two failures to register as a sex offender in Benton County that resulted in \nadditional terms for both charges.  Claimant also acknowledged that he was convicted of \nembezzlement in Oklahoma.  Finally, claimant was terminated by Respondent 2 in August \n2022 for theft of property in connection with the unauthorized use of Respondent 2’s fuel \ncard.    Gina  Brown  testified  that  while  going  through  credit  card logs  she  discovered \ncharges on two Sundays that should not have been made on those days.  She testified \nthat each employee has their own PIN number and that claimant’s PIN number was used \nin those purchases.  She stated that this resulted in criminal charges being filed against \nclaimant. \n Obviously,  these  facts  do  not  exclude  claimant  from  prevailing  and  proving  a \ncompensable  injury  while  performing  his  job  duties;  however,  they  are  relevant  when \nconsidering his credibility as a witness. \n With respect to claimant’s claims of injuries to his right shoulder, I note that there \nare  credibility  issues  as  well.    Claimant  testified  on  direct  examination  that  prior  to  his \ninjury in October 2020 he had not had any problems with his right shoulder.  However, \nwhen claimant sought medical treatment on January 15, 2021 from the emergency room, \nthe following history is noted: \n  Mr. McNair is a 41-year-old male that presents to the \n  emergency department complaining of some right sided \n  anterior shoulder pain that has been present for a year \n\nMcNair – H206243/H208492/H208493/H206220 \n \n9 \n \n  but has been worse over the last week after he was hit \n  in the back of the shoulder by a door that was swung  \n  shut and hit him.  He states that about a year ago he \n  had an MRI of the shoulder that showed a minor tear \n  of the rotator cuff but he did not follow-up.  (Emphasis \n  added.) \n \n \n In response to this history, claimant testified: \n \n  Q Now, the medical records indicate that you had told \n  the doctor you had an MRI of your shoulder a year before. \n  Do you remember anything about that? \n \nA No, not a year. \n \nQ Had you ever had any problems with your shoulder \nbefore? \n \nA No.  Nothing out of the normal. \n \n Further, Dr. Dougherty in his report dated September 20, 2021, notes that claimant \nhas had right shoulder issues for more than five years and that he had failed conservative \ncare. \n  Patient reports he’s been having pain in his right shoulder. \n  He was here last year for the same reason (2020) for an \n  injection in his right shoulder but refused to get it and now \n  he is regretting it. \n \n      *** \n  His x-rays of the right shoulder today show severe AC joint \n  arthritis.  His exam is also consistent with impingement \n  syndrome.  He has failed conservative care and over 5  \n  years of symptoms including a physician based home \n  exercise program.  (Emphasis added.) \n \n \n In  response  to  this  history,  claimant  testified  that  he  does  not  know  where  Dr. \nDougherty got this history and that it is incorrect. \n\nMcNair – H206243/H208492/H208493/H206220 \n \n10 \n \n Thus,  claimant  contends  that  two  medical  reports  from  two  different  physicians \nnoting a history of prior right shoulder complaints is incorrect.  I do not find this testimony \ncredible.  Dr. Dougherty’s statement that claimant had a five-year history of right shoulder \ncomplaints and failed conservative treatment is part of the basis for his decision to perform \nsurgery on the claimant’s right shoulder. \n In short, based on the foregoing, I find claimant’s credibility to be suspect and \nsignificant in all four of his right shoulder claims. \n Turning to the claims in particular, the first claim is for an injury to claimant’s right \nshoulder  and  right  hand  on  October  8,  2020.    Claimant  testified  that  while  making  a \ndelivery to a restaurant that day he reached out to grasp a handle on the truck and the \nhandle came off, causing him to slip and land on the top of his two-wheel dolly.  Claimant \ntestified that after this incident he called his supervisor, Blalock, reported the injury, and \nsent him a picture of his hand. \n Claimant did not seek any medical treatment for this injury.  The first medical report \nafter  October  8,  2020  is  from  an  emergency  room  visit  on  January  15,  2021,  for  the \nalleged January 8, 2021 injury at which time claimant gave a history of right shoulder pain \npresent for one year.  Claimant not only indicated that he had shoulder pain for a year, \nbut  also  gave  a  history  of  having  undergone  an  MRI  of  the  shoulder  which  showed  a \nminor tear of the rotator cuff.  Claimant denies giving this history.  Notably, the emergency \nroom report makes no mention of an accident or injury on October 8, 2020. \n In  addition,  with  respect  to  the  October  8,  2020  claim,  I  note  that  there  is  no \nobjective evidence of injury to claimant’s right hand or right shoulder.  Therefore, I find \nthat  claimant  has  failed  to  offer  medical  evidence  supported  by  objective  findings \n\nMcNair – H206243/H208492/H208493/H206220 \n \n11 \n \nestablishing a compensable injury to his right shoulder and right hand on October 8, 2020.   \n Based on claimant’s credibility, the lack of medical treatment until after another \nalleged  injury,  the  history  of  prior  right  shoulder  complaints  and  the  lack  of  objective \nfindings, I find that claimant has failed to prove by a preponderance of the evidence that \nhe suffered a compensable injury, or an aggravation of a pre-existing condition to his right \nshoulder and right hand on October 8, 2020. \n Having  found  that  claimant  failed  to  prove  a  compensable  injury  on  October  8, \n2020,  the  issue  of  whether  claimant  was  a  dual  employee  of Respondent  1  and \nRespondent 2 on that date is moot. \n Claimant also contends that he suffered a compensable injury to his right shoulder \non January 8, 2021.  Claimant testified that on that date he and one of Respondent 2’s \nmaintenance men were standing at the back of his truck looking at damage to the floor of \nthe truck.  The wind caught one of the doors which was loose due to a broken hook and \nstruck him in the back and shoulder.  Claimant testified that he told the maintenance man \nthat he was going to leave and go get checked out. \n  Q Who did you notify besides this maintenance gentleman \n  that there was there at that time?  Who else did you notify? \n \n  A He was the only one that - - on that one, he was there \n  and I told him I was leaving to go get checked out. \n \n \n However,  there  is  no  medical  report  indicating  that  claimant  sought  medical \ntreatment on that day.  There is the aforementioned medical report from the emergency \nroom dated one week later on January 15, 2021.  That report does indicate that claimant \nmentioned  having  been  struck  in  the  back  of  the  shoulder  a  week  ago  by  a  door.    As \n\nMcNair – H206243/H208492/H208493/H206220 \n \n12 \n \npreviously  discussed,  the  report  also  indicates  that  claimant  gave  a  history  of  right \nshoulder pain a year ago that resulted in an MRI scan showing a minor tear in the rotator \ncuff.  More importantly, the report contains no objective findings of injury.  The report does \ncontain notations of complaints of pain and decreased range of motion.  It also notes that \nno  effusion,  spasm,  laceration,  or  swelling  are  present.    At  that  time  claimant  was \ndiagnosed with chronic right shoulder pain. \n Based on claimant’s credibility, the history of prior shoulder complaints and the \nlack of objective findings, I find that claimant has failed to meet his burden of proving a \ncompensable injury or an aggravation of a pre-existing condition to his right shoulder on \nJanuary 8, 2021. \n Claimant does not allege another compensable injury until February 5, 2022, more \nthan a year after January 8, 2021; however, he did seek medical treatment for his right \nshoulder from Dr. DeClerk on August 17, 2021.  The report indicates that claimant’s right \nshoulder has been bothering him but does not mention any injuries.  The report states \nthat claimant had seen an orthopedic doctor and was supposed to get an injection but did \nnot.  The report also states that claimant has seen Dr. Dougherty and that therapy in the \npast has provided little relief.  None of these other medical reports are in the record.  Dr. \nDeClerk diagnosed claimant with pain in his right shoulder joint; prescribed medications; \nand referred claimant back to Dr. Dougherty. \n Claimant was seen by Dr. Dougherty on September 20, 2021.  His report indicates \nthat claimant’s problems included tendinitis of the right rotator cuff with an onset date of \nJuly  15,  2020.  Notably, this is before claimant’s first alleged injury date and again \ncontradicts claimant’s testimony that he had no right shoulder problems prior to October \n\nMcNair – H206243/H208492/H208493/H206220 \n \n13 \n \n2020.  The problems list also indicates that claimant has pain in the right shoulder joint \nwith  an  onset  date  of  August  17,  2021.    (Not  a  claimed  injury  date.)      His  report  also \nindicates  that  there  was  no  work-related  injury.    The  report  then  goes  on  to  state  that \nclaimant had shoulder issues for five years and that he had failed conservative care.  Dr. \nDougherty  went  on  to  recommend  a  right  shoulder  arthroscopy  with  subacromial \ndecompression and distal clavicle resection.   \n Dr.  Dougherty  performed  this  surgery  on  September  28,  2021,  with  a  post-op \ndiagnosis  to  include:    impingement  syndrome  with  acromioclavicular  arthritis;  intact \nrotator  cuff;  pristine  articular  surfaces;  and  intact  biceps.    According  to  claimant’s \ntestimony he has not seen Dr. Dougherty since September 2021.   \n Claimant claims a third injury to his right shoulder on February 5, 2022.  Claimant \ntestified that on that date he was walking when he slipped on ice and fell, injuring his right \nshoulder.  In support of this claim, claimant offered a video of the incident.  The video is \napproximately three seconds long and does show the claimant as he started to slip and/or \nfall.  Claimant was seen at the emergency room later that day complaining of pain in the \nright AC joint.  Given the video evidence, there is no question that this incident occurred \nas  described  by  claimant.    However,  in  order  to  prove  a  compensable  injury,  claimant \nmust also medical evidence supported by objective findings establishing an injury.  I find \nthat he has failed to meet that burden of proof.   \n X-rays of the claimant’s right shoulder were negative for acute bony pathology.  In \naddition,  the  physical  exam  revealed  a  full  range  of  motion,  both  passive  and  active.  \nClaimant  was  given  Tylenol and  Motrin  and diagnosed  with  a  strain  of  the muscle  and \ntendons of the rotator cuff of the right shoulder.   \n\nMcNair – H206243/H208492/H208493/H206220 \n \n14 \n \n Absent   objective   findings,   claimant   cannot   meet   his   burden   of   proving   a \ncompensable   injury.      Therefore,   I   find   that   claimant   has   failed   to   prove   by   a \npreponderance of the evidence that he suffered a compensable injury or an aggravation \nof a pre-existing condition on February 5, 2022. \n The final claim for compensability is for August 23, 2022.  Claimant contends that \non that date he injured his right shoulder while lifting a box of apples.  The circumstances \nsurrounding this injury are suspect.  Claimant testified as follows: \n  I came in after my school, after I got out of class, to \n  check my route load.  It was kind of a habit because \n  we didn’t always have the best people stacking the \n  pallets and loads and wrapping them like they should. \n  And the load I was on was a really picky one.  If \n  something fell off, they would reject loads, so I would \n  go in after class and check it and make sure it was \n  right. \n \n  And I had seen a box of apples that was on the pallet, \n  you know, if someone moved it or something it was \n  liable to fall.  So I picked it up to put it back on the \n  pallet further up and when I kind of tossed it up there, \n  I felt my shoulder kind of roll.  As it rolled, it kind of \n  popped and started hurting. \n \n \n Claimant acknowledged that he was not scheduled to work on the night of August \n23, but simply decided to show up, clock in, work 15 to 20 minutes and then leave. \n  Q Now, you weren’t scheduled to work on the evening \n  of August 23; were you? \n \n  A I was on no schedules. \n \n  Q Well, would it surprise you to learn if Ms. Brown and  \n  Mr. Blalock testify that you have to be on the schedule to  \n  work and clock in? \n \n  A This is incorrect. \n\nMcNair – H206243/H208492/H208493/H206220 \n \n15 \n \n \n  Q They are just lying? \n \n  A I hadn’t been on the schedule in a year and I made \n  many trips.  I would be called in by Amanda Blalock and \n  Kenny Blalock and Luke. \n \n  Q So you could just show up, clock in, and do anything \n  anytime and anywhere? \n \n  A Yes, sir. \n \n      *** \n  Q So at 9:30, approximately, on August 23\nrd\n of 2022, \n  it was completely acceptable for you just to appear out of \n  nowhere and try to go to work; if that what you are telling \n  us? \n \n  A Yes, sir. \n \n  Q Okay.  And that you did it routinely; is that what you  \n  are telling us? \n \n  A Yes, sir. \n \n \n Gina Brown testified that claimant was not scheduled to work on the night of August \n23, but showed up and clocked in.  She testified that employees are not supposed to be \nat Respondent 2 if they are not on the schedule and that employees can’t just show up \nand work.  In response to Brown’s testimony, claimant testified that he had shown up on \nother occasions but admitted that most of the time he did not clock in. \n  Q Had you been paid for those? [Nights he had gone to \n  the warehouse while not on the schedule.] \n \n  A No, sir.  Sometimes I didn’t - - most of the time I didn’t \n  clock in, I would just come by, because it made my life easier \n  if the pallets weren’t leaning and falling over. \n \n Thus, claimant was not scheduled to work on the night of August 23, but shows \n\nMcNair – H206243/H208492/H208493/H206220 \n \n16 \n \nup,  clocks  in,  and  plans  to  work  only  15  to  20  minutes  before  leaving.    Other  than \nclaimant’s testimony, there is no evidence that he had ever done this before.  In fact, even \nclaimant admitted that most of the time when he allegedly did this in the past he did not \nclock in.  It seems more than coincidental that claimant would appear at work on the night \nof August 23, clock into work 15 to 20 minutes, and just happen to have an injury during \nthat time. \n As between the testimony of Brown and claimant, I found Brown’s testimony more \ncredible.  Her testimony is that claimant was not supposed to be present unless he was \non the schedule.  I do not find credible claimant’s testimony that he was not on the \nschedule and that he would routinely show up and work when he wanted.   \n Having  accepted  Brown’s  testimony  as  credible,  I  find  that  claimant  was  not \nperforming  employment  services  at  the  time  of  his  alleged  injury.    An  employee  is \nperforming employment services when he is doing something that is generally required \nby  his  employer.   Texarkana  School  District  v.  Conner,  373  Ark.  372,  284  S.W.  3d  57 \n(2008).  The test is whether the injury occurred within the time and space boundaries of \nthe employment, when the employee was carrying out the employer’s interest, directly or \nindirectly.  Javan v. Econ. Inn & Suites, 370 Ark. 414, 260 S.W. 3d 281 (2007).   \n I do not find that claimant was doing something that was required by his employer \nor that he was within the time and space boundaries of his employment at the time he \ncontends  his  injury  occurred.    According  to  Brown’s  testimony,  claimant  was  not \nscheduled to work on the right of August 23 and was not to be present unless he was on \nthe schedule.  Therefore, claimant was not performing an activity that was required by his \nemployer during the time and space boundaries of his employment.  The fact claimant \n\nMcNair – H206243/H208492/H208493/H206220 \n \n17 \n \nwas  picking  up  a  box  of  apples  is  not  controlling  given  the  evidence  indicating  that \nclaimant was not supposed to be present unless he was scheduled to work.  An employee \ncannot simply create a situation of performing employment services by showing up  at \nwork and clocking in if they are not supposed to be present and working. \n Even if it were determined that claimant was performing employment services on \nAugust 23, claimant still has the burden of proving by a preponderance of the evidence \nthat  he  suffered  a  compensable  injury.    Here, a finding  that  the  injury  occurred  is \ndependent  on  claimant’s  credibility.    For  reasons  previously  discussed,  I  find  that \nclaimant’s testimony is not credible. \n Accordingly,  I  find  that  claimant  has  failed  to  prove  by  a  preponderance  of  the \nevidence that he suffered a compensable injury or aggravation of a pre-existing condition \nto his right shoulder on August 23, 2022. \n \n      ORDER \n Claimant has failed to prove by a preponderance of the evidence that he suffered \ncompensable injuries to his right shoulder and right hand on October 8, 2020; his right \nshoulder on January 8, 2021; his right shoulder on February 5, 2022; or his right shoulder \non August 23, 2022.  Therefore, his claim for compensation benefits is hereby denied and \ndismissed. \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $1,065.45. \n \n \n\nMcNair – H206243/H208492/H208493/H206220 \n \n18 \n \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":29124,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206243 MICKEY T. MCNAIR, Employee CLAIMANT CENTURY LEASING, Uninsured Employer RESPONDENT #1 KIMBALL & THOMPSON PRODUCE, INC., Employer RESPONDENT #2 AMTRUST NORTH AMERICA, Carrier RESPONDENT #2 CLAIM NO. H208493 MICKEY T. MCNAIR, Employee CLAIMANT KIMBALL...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["shoulder","back","rotator cuff","strain"],"fetchedAt":"2026-05-19T22:51:56.121Z"},{"id":"alj-H208114-2024-07-24","awccNumber":"H208114","decisionDate":"2024-07-24","decisionYear":2024,"opinionType":"alj","claimantName":"Richard Clark","employerName":null,"title":"CLARK VS. NESTLE US HOLDCO, INC.AWCC# H208114July 24, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Clark_Richard_H208114_20240724.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Clark_Richard_H208114_20240724.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208114 \n \nRICHARD CLARK, \nEMPLOYEE                                                                                                              CLAIMANT \n \nNESTLE US HOLDCO, INC., \nSELF-INSURED/EMPLOYER                                                                           RESPONDENT  \n \nINDEMNITY INS. CO. OF NORTH AMERICA, \nCARRIER                                                  RESPONDENT \n \nESIS, INC., \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED JULY 24, 2024 \n \nHearing conducted on Wednesday, June 28, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant,  Mr. Richard  Clark,  represented  himself pro  se, Jonesboro,  Arkansas, and did \nappear in person at the full hearing.  \n \nThe Respondents were represented by the Honorable Michael Stiles, Little Rock, Arkansas. \n \nBACKGROUND \n  This matter comes before the Commission originally for a full hearing on June 28, 2024. \nHowever,  since  Claimant would  not  prosecute  his  claim  but  instead  left  the  courtroom  without \npermission, Respondents made an oral Motion to Dismiss due to a lack of prosecution. A hearing \nwas  conducted on  this  Motion on June 28,  2024,  in Jonesboro,  Arkansas.  No  testimony  was \ntaken  in  the  case.  Admitted  into  evidence  was Respondents’ Exhibit  1, medical  records \nconsisting  of  120  pages, Respondents’ Exhibit  2, Claimant’s  criminal  history,  attendance \nrecords,  wage  records  and  other  employment  records  consisting  of  73  pages, Respondents’ \nExhibit   3, consisting   of   a   video   depicting Claimant   at   work. Respondents’ Exhibit   4, \nRespondents’ response  to  questionnaire  consisting  of five pages, and  Respondents’ Exhibit  5, \n\nCLARK, AWCC No. H208114 \n \n2 \n \ncorrespondence and confirmation of discovery, consisting of six pages. I  have also blue-backed \nForms AR-1, AR-2, September  6,  2023, Prehearing  Order, Motion  to  Compel Order  filed  June \n18,  2024, Melanie  Miller  email  dated  June  28,  2024,  Catherine  Ferguson  email  dated  June  28, \n2024, Melanie Miller email dated December 13, 2023, Melanie Miller email dated April 1, 2024, \nand Melanie Miller email dated September 7, 2023, as discussed infra. \nSTIPULATIONS \n By  agreement  of  the  parties,  the full  hearing stipulations  applicable  to  this  claim  are  as \nfollows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n2. An employer/employee/carrier relationship existed on November 5, 2022, \nwhen Claimant allegedly sustained a compensable injury to his low back. \n3. Respondents have denied and controverted this claim in its entirety and no \nbenefits have been paid. \n4. The   parties   will   stipulate   to   Claimant   average   weekly   wage   and \ncompensation rates on or before the hearing date.\n1\n \nISSUE \nThe parties have identified the following issues to be adjudicated: \n1. Whether  Claimant  sustained  compensable  injuries  to  his  low  back  on  November  5, \n2022, by specific incident. \n  \n \n1\n This issue, as well as all other issues, to be adjudicated for the full hearing were not \naddressed since Claimant left the proceedings without permission. \n\nCLARK, AWCC No. H208114 \n \n3 \n \n2. Whether Claimant is entitled to any reasonable and necessary medical treatment and \nrelated expenses, including mileage and out of pocket expenses. \n3. Whether Claimant is entitled to temporary total disability benefits from November 6, \n2022, to a date yet to be determined. \nAll other issues are reserved. \nCONTENTIONS \nClaimant’s Contentions: The Claimant contends that he is entitled to compensation  for \nhis  low  back  injury,  reasonable  and  necessary  medical  treatment  and  related  expenses,  and \ntemporary total disability benefits.  \nRespondents’ Contentions: Respondents contend the following: \n1. The Respondents contend the Claimant, who was hired on January 31, 2022, did not \nsustain  a  compensable  injury  to  his  low  back  on  November  5,  2022,  as  defined  by \nArkansas law. Accordingly, the Claimant is not entitled to any benefits whatsoever. \n2. The  Respondents  have  denied  and  controverted  this  claim  in  its  entirety;  thus,  the \nRespondents have not paid any benefits to or on behalf of the Claimant because of his \npurported low back injury. \n3. The Claimant’s supposed injury did not occur out of and during the course and scope \nof the Claimant’s employment for the Respondent/Employer. \n4. The  Respondents  respectfully  contend  that  the  Claimant  was  not  involved  in  any \nspecific-incident type injury on or about November 5, 2022. \n5. The Claimant is not entitled to any benefits herein, as the Claimant’s need for medical \ntreatment, if any, is unrelated to the supposed injury the Claimant allegedly sustained \n\nCLARK, AWCC No. H208114 \n \n4 \n \non November 5, 2022. Instead, the Claimant’s current ailments and need for medical \ntreatment, if any, is related to an unrelated and/or pre-existing condition. \n6. In  the  alternative,  if  it  is  determined  the  Claimant  sustained  a  compensable  injury, \nthen the Respondents hereby request a setoff for all benefits paid by the Claimant’s \ngroup  health  carrier,  all short-term disability  benefits  received  by  the  Claimant,  and \nall unemployment benefits received by the Claimant. \n7. The  Respondents reserve  the  right  to  amend  and  supplement  their  contentions  and \nposition after additional discovery has been completed. \nSTATEMENT OF FACTS \nThe Claimant allegedly injured his low back while working for Respondent/Employer on \nNovember 5, 2022. The Claimant allegedly was working at his station when he slipped on some \nwater  on  the  floor  but did  not physically fall onto  the  floor.  See  Form  AR-1,  blue-backed.  The \nslip itself is the alleged catalyst for the claimed back injury.  \nA prehearing telephone conference took place on September 6, 2023. There the Claimant \nwanted to  argue the merits of his claim. He was  advised that this was not the time to  argue the \nmerits of his claim. Claimant got extremely loud and aggressive stating that he may lose his legs \nor  become  homeless  before  his  case was  heard.  Claimant  was further advised  that  this  is  the \nprocess to get to the merits of his claim and he can hire an attorney or contact the legal advisors \nto  help  with  this process.  Despite  my advice,  the  Claimant  continued to  argue  the  merits  of  his \nclaim. He was again admonished that this was not the time to go into the merits of his claim. The \nClaimant   immediately   hung   up after   being   admonished.   However, the prehearing phone \nconference was not over. I called the Claimant back and advised that he should compose himself \nproperly and that acting out will not be tolerated. Claimant was then given December 22, 2023, \n\nCLARK, AWCC No. H208114 \n \n5 \n \nas his full hearing date and was told that he needs to comply with discovery since Respondents’ \ncounsel made that an issue during the phone conference. A Prehearing Order was filed that same \nday as the phone conference. \nOn December 13, 2023, Respondents’ counsel requested a continuance due to Claimant’s \nfailure  to  comply  with  discovery.  A  phone  conference  was  held  with  the  parties  and  Claimant \nadmitted to not complying with discovery. As a result, I continued the hearing and returned the \nfile to general files. See Melanie Miller email dated December 13, 2023, blue-backed.  \nOn  April  1, 2024,  a  second  hearing  was  set  for  June  28,  2024,  Jonesboro,  Arkansas, \ntwelve noon. See Melanie Miller email dated April 1, 2024, blue-backed. Proper notice was sent \nout to the Claimant at his last known address of record.  \nOn  June  28,  2024,  the  day  of  the  full  hearing,  the  Claimant  spoke  with  Catherine \nFerguson,  my  former  legal  assistant,  who  still  works  for  the  Commission,  at  8:16 am,  asking \nwhat time the hearing was set for and the address where it will be held. Ms. Ferguson answered \nhis question. Claimant subsequently spoke with Melanie Miller, my assistant, later that morning \nat 9:44 am. Claimant informed my assistant that he woke up and did not know where his papers \nwere and  where the hearing was going to be held but he  called  around  and got the answer. See \nMelanie Miller email dated June 28, 2024, blue-backed. \nClaimant walked into the courtroom at 12:10 pm, the proceedings were to begin at 12:00 \npm.  The  Claimant  entered  the  courtroom  with  a  back  brace  and  a  women  dressed  in  scrubs \nassisting him. The Claimant walked slowly, in a clearly overly exaggerated and dramatic way, to \ncounsel’s table and made an oral Motion for Continuance. The substance of his Motion was that \nhe  was  not  feeling well, and  that  discovery  was  not  complete. Claimant’s discovery issue was \nbased  on his belief  that Respondents sent  him forty-nine  pages  of  falsified  documents.  See \n\nCLARK, AWCC No. H208114 \n \n6 \n \nTranscript,  pages  3,  lines  22-25,  through  page  4,  lines  1-8. This  issue  has  been  fully  addressed \nand ruled on. See Motion to Compel Order filed June 18, 2024, blue-backed. As to the Claimant \nnot  feeling  well,  he  states  he  hasn’t  felt  well  in  a  couple  of days.  However,  he  states  this \nmorning, the day of his hearing, his pain was bad, and he had taken some medication. \nThe  Respondents  objected  to  the Motion. I  agreed  with  Respondents’  objection and \ndenied the Motion.  I did not believe the Claimant was actually hurt, rather he was not prepared \nand  needed  an  excuse  for  a  continuance.    Therefore,  I advised  the  Claimant  that  we  are  all \npresent and ready to go forward with this claim. The Claimant started to leave the courtroom.  I \nwarned  the  Claimant  if  he  left the  courtroom that  I  would  entertain  an  oral Motion  to  Dismiss \nfrom  Respondents. The  Claimant  continued  to  walk  towards  the  door,  so  I  gave  him  the  same \nwarning  a  second  time.  Despite  these  two  warnings  the  Claimant  left  the  courtroom. The \nRespondents made their oral Motion to Dismiss due to a lack of prosecution.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n1. The Commission has jurisdiction over this claim. \n2. The Claimant and Respondents both had reasonable notice of the June 28, 2024, \nhearing. \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n4. The Respondents’ oral Motion to Dismiss should be granted. \n5. This claim is hereby dismissed without prejudice.     \n \n\nCLARK, AWCC No. H208114 \n \n7 \n \nDISCUSSION \n I  find  by  preponderance  of  the  evidence  that  the  Claimant  was  exaggerating  his  health \nissues  and  used  it  as  a  pretext in  hopes  of  gaining a  continuance.  The  Claimant  alleges  he  was \nhurting  for  days  prior  to  the  hearing  but  did  not  make  the  Commission  aware  of  it. Instead, he \nstates, that the “morning” of  the  hearing his pain  was particularly bad, and  he  had  to  take \nmedication to help with  that pain. I don’t credit Claimant’s statement. The Claimant had ample \nopportunities to contact the Commission and  Respondents’ counsel making us aware of his \ncondition. The  Claimant  spoke  with  Catherine  Ferguson, an  employee of  the  Commission,  at \n8:16 am, the day of the hearing, to get the time and place for the hearing. The Claimant, during \nthe same morning, later spoke with Melanie Miller, my assistant, at 9:44 am, almost an hour and \na  half  later  after  speaking  with  Ms.  Ferguson,  stating that  he  woke  up  not  knowing  where  his \npapers were and did not know where the hearing would take place. Claimant never stated to Ms. \nFerguson or Ms. Miller that he was not feeling well, had to take medication for pain, or wanted a \ncontinuance.  \n The Claimant also argues that there were discovery issues. The Claimant alleges that the \ndiscovery sent to him by Respondents’ counsel was fraudulent. Claimant was made aware, via \nJune  11,  2024,  phone  conference,  and  in  an  Order  filed  June  18,  2024,  and  blue-backed  to  this \nrecord, that he can present any contradictory evidence at the full hearing, and it will be reviewed. \nThus, the discovery issue as a bases for the continuance is without merit. \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant appeared at the hearing with \none thin manilla envelope. Based on the amount of discovery produced in this claim, it was clear \nthat  he  was  not  prepared  to  go  forward  with  the  full  hearing.  It  was  also  clear,  based  on  my \n\nCLARK, AWCC No. H208114 \n \n8 \n \nobservations  of  Claimant,  that  his  claim  of  not  feeling  well  was  not  genuine\n2\n,  rather  a  mere \npretext to disguise the fact that he was not prepared to go forward with the claim. This was the \nsecond full hearing scheduled for the Claimant. The first was continued due to the Claimant not \ncomplying  with  discovery,  although  he  had  more  than  two  months  to  comply. Again, I  had \ndenied Claimant’s oral Motion for Continuance during the hearing. The Claimant decidedly left \nthe  courtroom after  my  ruling  despite being  given  two  warnings.  The  Claimant  was  not \ndismissed from the hearing and his exit from the courtroom proceedings was an abandonment of \nhis  claim. Therefore,  I  do  find  by  the  preponderance  of  the  evidence  that Respondents’ oral \nMotion to Dismiss should be granted. \nThat leaves the question of whether the dismissal of the claim should be with or without \nprejudice.  The Commission possesses the authority to dismiss claims with prejudice.  Loosey v. \nOsmose  Wood  Preserving  Co., 23  Ark.  App.  137,  744  S.W.2d  402  (1988).   However,  in \nnumerous past decisions, this Commission and the Appellate Courts have expressed a preference \nfor dismissals without prejudice.  See Professional Adjustment Bureau v. Strong, 275 Ark. 249, \n629  S.W.2d  284  (1982).    Based  on  the  above  authorities,  I  find  that  the  dismissal  of  this  claim \nshould be and hereby is entered without prejudice. \nREMAINING ISSUES \n Because of the above findings and conclusions, the remaining issues—whether Claimant \nsustained  a  compensable  injury  to  his  low  back  on  November  5,  2022; whether  Claimant  is \nentitled  to  reasonable  and  necessary medical treatment and  related  expenses,  including  mileage \n \n2\n It must be noted, that after the hearing, the bailiff, Deputy Mark Ballard, who retrieved \nthe Claimant from a courtroom in a different court building, voluntarily stated to me that he saw \nthe Claimant walking “normally” from one building to the next before the proceedings began. He \nfurther stated that the Claimant changed how he was walking when entering the annex building. \nClaimant then started shaking when he made it to the Worker’s Compensation courtroom. \n\nCLARK, AWCC No. H208114 \n \n9 \n \nand out of pocket expenses; whether Claimant is entitled to temporary total disability—are moot \nand will not be addressed. \nCONCLUSION \n Based on the Findings of Fact and Conclusions of Law set forth above, Respondents’ oral \nMotion to Dismiss is granted, without prejudice. \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":16191,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208114 RICHARD CLARK, EMPLOYEE CLAIMANT NESTLE US HOLDCO, INC., SELF-INSURED/EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA, CARRIER RESPONDENT ESIS, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JULY 24, 2024 Hearing conducted on Wednesd...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:3","denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:51:54.001Z"},{"id":"alj-H109984-2024-07-24","awccNumber":"H109984","decisionDate":"2024-07-24","decisionYear":2024,"opinionType":"alj","claimantName":"Shauna Torrence","employerName":"Lafayette County School District","title":"TORRENCE VS. LAFAYETTE COUNTY SCHOOL DISTRICT AWCC# H109984 July 24, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TORRENCE_SHAUNA_H109984_20240724.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TORRENCE_SHAUNA_H109984_20240724.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H109984 \n \nSHAUNA D. TORRENCE,  \nEMPLOYEE CLAIMANT \n \nLAFAYETTE COUNTY SCHOOL DISTRICT,  \nEMPLOYER RESPONDENT \n \nARKANSAS SCHOOL BD. ASS’N WORKERS’ \nCOMPENSATION TRUST/ARKANSAS SCHOOL \nBDS. ASS’N, INSURANCE CARRIER/TPA  RESPONDENT \n \n \nOPINION FILED JULY 24, 2024 \n \nHearing conducted on April 25, 2024, before the Arkansas Workers’ Compensation Commission \n(the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Texarkana, Miller County, \nArkansas. \n \nThe claimant was represented by the Honorable Gregory R. Giles, Moore, Giles & Matteson, \nL.L.P., Texarkana, Miller County, Arkansas.  \n \nThe respondents were represented by the Honorable Melissa Wood, Worley, Wood & Parrish, Little \nRock, Pulaski County, Arkansas. \n \n \nINTRODUCTION \nIn the prehearing order filed December 11, 2023, the parties agreed to the following \n \nstipulations, which they affirmed on the record at the hearing: \n \n  1. The Arkansas Workers' Compensation Commission (the Commission) has \n   jurisdiction over this claim. \n \n           2. The employer/employee/carrier-TPA relationship existed at all relevant times \n   including October 5, 2021, the date the claimant alleges she became temporarily  \n  totally disabled due to alleged work-related bilateral carpal tunnel syndrome (CTS), \n  particularly CTS, most notably in her right wrist/hand. \n \n  3. The claimant’s average weekly wage (AWW) was $701.46 which is sufficient to  \n  entitle her to weekly compensation rates of $351.00 for temporary total  \n  disability (TTD) and $238.00 for permanent partial disability (PPD) benefits  \n  if the claim is deemed compensable. \n\n2 \n \n \n  4. The respondents controvert this claim in its entirety. \n \n5. The parties specifically reserve any and all other issues for future determination \nand/or litigation. \n \n(Commission Exhibit 1 at 1-2; Hearing Transcript at 4-6). Pursuant to the parties’ mutual agreement \n \nthe issues litigated at the hearing were: \n \n1. Whether the claim for the claimant’s left wrist CTS is barred by the applicable statute \nof limitations (S/L). \n \n2. Whether the claimant sustained compensable bilateral CTS injuries, particularly in \nher right wrist/hand, within the meaning of the Arkansas’ Workers’ Compensation \nAct (the Act) which allegedly culminated in disability on or about October 5, 2021. \n \n3. If the claimant’s alleged bilateral CTS is deemed compensable, the extent to which \nshe is entitled to medical and indemnity benefits, specifically TTD benefits from on \nor about January 18, 2022, through on or about June 30, 2022, for treat related to her \nright wrist/hand; and from on or about January 10, 2023, until at least March 7, 2023, \nwith respect to her left wrist/hand. \n \n4. Whether the claimant's attorney is entitled to a controverted fee on these facts. \n \n5. The parties specifically reserve any and all other issues for future determination \nand/or litigation. \n \n(Comms’n Ex. 1 at 2; T. 4-6). \n \n In the prehearing order filed December 11, 2023, the parties’ made certain contentions, \nwhich they amended at the hearing as set forth below. (Comms’n Ex. 1 at 2-4; T. 5-6). In the \nprehearing order the claimant contends she sustained bilateral CTS injuries which culminated in \ndisability on or about October 5, 2021; or alternatively, as a result of her rapid, repetitive work-\nrelated activities performed at the school district since 2004. She contends the applicable S/L does \nnot barr her claim for CTS in her left wrist/hand. The claimant further contends she is entitled to \nTTD benefits from on or about January 18, 2022, through on or about June 30, 2022, for treatment \nassociated with her right wrist/hand. Furthermore, the claimant contends she is entitled to TTD \n\n3 \n \nbenefits for treatment associated with the left wrist/hand beginning on or about January 10, 2023, \nuntil she was seen by Dr. Cassatt for evaluation on a date certain in 2023 (the claimant has requested \nthese related records). The claimant contends the respondents are responsible for payment of her \nmedical treatment and related out-of-pocket expenses for her bilateral CTS, as such treatment is \nrelated to and reasonably necessary in light of the work-related bilateral CTS injuries. The claimant \ncontends she has sustained permanent anatomical impairment to both her left and right wrist/hand \nas a result of these bilateral CTS injuries; however, she specifically reserves this issue pending the \nCommission’s decision of the threshold compensability issue. The claimant reserves any and all \nother issues for future determination and/or litigation. \n  In the prehearing order the respondents contend the applicable S/L barrs the claimant’s CTS \nclaim with respect to her left wrist/hand. Furthermore, the respondents contend the claimant cannot \nmeet her burden of proof pursuant to the Act in demonstrating she sustained CTS in either her right \nwrist/hand and/or her left wrist/hand, which culminated in alleged disability on or about October \n5, 2021, or at any other time while she was working with the respondents. Significantly, the \nrespondents contend the claimant did not provide them the statutorily required notice of any alleged \nright wrist/hand CTS injury until the Form AR-C was filed on her behalf on January 5, 2022. In \naddition, the respondents contend the claimant also failed and/or refused to provide them the legally \nrequired notice of any alleged left wrist/hand CTS injury until October 26, 2023, the date she filed \nher initial response to the prehearing questionnaire. Alternatively, the respondents contended that \nif the claimant’s alleged CTS injury(ies) is (are) deemed compensable, she received both short and \nlong-term disability (STD, and LTD, respectively) benefits and, therefore, pursuant to Ark. Code \nAnn. Section  11-9-411  (2024 Lexis  Replacement), they  are entitled  to  a dollar-for-dollar \noffset/credit. Finally, the respondents contend the claimant's need for medical treatment, if any, is \n\n4 \n \nrelated to her diabetes mellitus and not to any acute or gradual injury. The respondents reserved the \nright to supplement their contentions and assert any and all other applicable defenses and arguments \nupon the completion of necessary investigation and discovery. The respondents reserve any and all \nother issues for future determination and/or litigation. (Comms’n Ex. 1 at 3-4). \n  With respect to their amended contentions made at the hearing, the respondents contend the \nclaimant  cannot  meet  her  burden  of  proof  pursuant  to  the  Act  in  demonstrating  she  sustained \ncompensable CTS for either her left wrist or her right wrist. Furthermore, the respondents contend \nthe claimant did not provide them with the required statutory notice of the alleged right extremity \ninjury until the Form AR-N was filed on January 6, 2022. Moreover, the respondents contend the \nclaimant did not provide them with the required notice of the alleged left extremity injury until the \nForm AR-C was filed on October 3, 2023. (T. 5). Therefore, according to the applicable law even \nif the Commission finds one (1) or both of these alleged injuries to be compensable, the respondents \nwould  not  be  responsible  for  the  payment  of  any  medical  or  TTD  benefits  until  the  date  they \nreceived the required statutory notice of the respective injuries – i.e., the dates set forth above.  \n  In response to the respondents’ amended contentions, the claimant contends the respondents’ \nS/L argument is inapplicable to the claimant’s alleged right wrist injury. With regard to the \nclaimant’s alleged left wrist injury, the claimant agreed with the respondents that she had not made \na claim for a left wrist injury until the Form AR-C was filed on October 3, 2023. (T.5).  \n The record consists of the hearing transcript, and any and all exhibits contained therein and attached \nthereto, as well as the parties’ blue-backed post-hearing briefs.  \n \n \n \n\n5 \n \nSTATEMENT OF THE CASE \n The claimant’s post-hearing brief contains a fair recitation of the basic facts involved herein. \n(Claimant’s Brief at 1-3). Consequently, I hereby incorporate the aforementioned facts by reference \nas if they were set forth herein. In addition, I will discuss the relevant facts as applied to the \napplicable law in the “Discussion” section of this opinion, infra. \nDISCUSSION \n The Burden of Proof \n  When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2024 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-9-\n704(c)(3) (2024 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2024 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. App. \n196, 737 S.W.2d 633 (Ark. App. 1987). \n  All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, 35 \nArk. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, 595 \n\n6 \n \nS.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility of \nthe witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra. \n  A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (Ark. App. 1994).  The determination of a witness’s credibility and \nhow much weight to accord that person’s testimony are solely up to the Commission.  White v. Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (Ark. App. 2001).  \n  The Commission has the duty to weigh the medical evidence just as it does any other \nevidence, and its resolution of the medical evidence has the force and effect of a jury verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince to weigh the totality of the medical evidence and to determine what evidence is most \ncredible given the totality of the credible evidence of record. Minnesota Mining & Mfg’ing v. Baker, \n337 Ark. 94, 989 S.W.2d 151 (1999). \n The claimant has failed to meet her burden of proof pursuant to the Act in demonstrating \neither  or  both  her  left  or  right  wrist  conditions  is  (are)  compensable  as  either  a  specific \nincident or a gradual onset injury. \n In order to prove a compensable injury as a result of a specific incident the claimant must \nestablish by a preponderance of the evidence that she sustained: (1) an injury arising out of and \nin the course of employment; (2) the injury caused internal or external harm to the body which \nrequired  medical  services  or  resulted  in  disability  or  death;  (3) there  exists medical  evidence \nsupported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) (2024 Lexis Repl.), \nestablishing the injury; and (4) the injury was caused by a specific incident and identifiable  by  \n\n7 \n \ntime  and  place  of  occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i) (2024 Lexis Repl.). \n  Concerning an alleged gradual onset compensable injury Ark. Code Ann. § 11-9-102(4)(A) \n(2024 Lexis Repl.) defines “compensable injury” as follows: \n(ii) An injury causing internal or external physical harm to the body and \n  arising out of and in the course of employment if it is not caused by a \n  specific incident is not identifiable by time and place of occurrence, if \n  the injury is: \n \n(a) Caused   by   rapid   repetitive   motion. Carpal   tunnel   syndrome   is \n specifically categorized  as  a  compensable  injury  falling  within  this \n definition[.]  \n \n(Bracketed material, and emphasis added). Our Arkansas courts of appeal have held that CTS is an \ninjury that may be caused by a specific incident, or gradual onset caused by rapid, repetitive motion. \nKildow v. Baldwin Piano & Organ, 333 Ark. 335; 969 S.W.2d 190 (1998); and see, Harper Co. v. \nWoods, 216 Ark. App. 431; 216 Ark. App. 456 (2016 Ark. App. 2016); Sally v. Service Master, 2009 \nArk. App. 209; 309 S.W.3d 7 (Ark. App. 2019). \n  Based on the applicable law as applied to the facts of this case, the claimant has failed to \nmeet her burden of proof that either her right or left wrist condition was the result of either a specific \nincident or a gradual onset compensable injury as defined by the Act, for the following reasons.  \n  First, the claimant’s own sworn testimony at the hearing demonstrates she herself has no \nidea what caused her alleged bilateral CTS. The claimant, Ms. Shauna Torrence (the claimant), is \n43 years old. She started working for Lafayette County School District in August of 2004. (T. 8). She \ninitially worked as a bus driver and later began working a second contract job as a custodian. (Id.). \nConcerning her alleged bilateral wrist injuries and her reporting/providing notice to her employer of \nthe alleged incidents/injuries the claimant testified as follows: \nQ: On  the  day  of  the  alleged  injury,  October  5,  2021,  it’s  my \nunderstanding that you had the cart that you described earlier, and on \n\n8 \n \nthat cart would have been everything you needed to clean.  The mop \nbucket, dust mop, paper towels, etcetera, is that correct? \nA: Yes, ma’am. \nQ: All right. When you were trying to get over the metal door frame, you \ntestified in your deposition that you held onto the cart, and the cart \ndid not fall over, is that right? \nA: Correct. \nQ: You indicated in your deposition that your right elbow hit the floor, \nis that right? \nA: Right. \nQ: And during this is when you twisted your left foot? \nA: Yes. \nQ: You told us earlier that you hopped to the main office that day and \nthat’s where you saw Mr. Crank and the secretary, is that correct? \nA: Correct. \nQ: Did you tell them at that time that you were hurt? \nA: Yes. \nQ: And after that was when you sent to the teacher’s lounge for a while? \nA: Yes. \nQ: And you hopped around the rest of the day, but you did finish your \njob duties that day, correct? \nA: Yes, ma’am. \nQ: And you told  us today that you did not think you  needed treatment \nthat day, is that right? \nA: That’s right. \nQ: I  asked  you  in  your  deposition  did  you  hurt  anything  besides  your \nfoot, and you responded I hurt my arm that day.  I hurt my arm.  Is \nthat correct? \nA: What now? \nQ: I asked you in the deposition did you hurt anything besides your foot, \nand your response was I hurt my arm that day.  I hurt my arm.  Is that \ncorrect? \nA: Yes. \nQ: And I asked you which one, and you said it was the right arm? \n\n9 \n \nA: The right arm. \n(T. 40-42). \n The claimant went on to testify she showed Mr. Crank her swollen right hand on the day of \nthe fall, and she had to wear a house shoe the following day because she could not put a regular \nshoe on her foot. (T. 42-43). Dr. Patel was the first physician she saw for her alleged right hand/wrist \ninjury, and she told both him and Dr. Saldino she fell pushing a cart at work. (T. 43). Concerning \nthe alleged left hand/wrist injury, the following exchange took place between the claimant and the \nrespondents’ attorney: \nQ: We discussed your left hand during the deposition, and you told me \nthat you assumed that you put strain on the left one because you never \nhad problems with your hands or feet before the fall, is that right? \nA: Correct. \nQ: You also went on to say that you thought it was holding the door and \npushing  the  buggy  at  the  same  time  that  put  the  strain  on  your  left \nhand, is that right? \nA: Correct. \n(T. 43). \n The  claimant’s  attorney her   attorney questioned   her   concerning   she   believed   the \nCommission should find her alleged injury(ies) to be compensable: \nQ: So, we’re here today because you are alleging the symptoms with \nregard to your hands, the right that you’ve had surgery on and the left \nthat you didn’t, you believe occurred as a result of your work-related \nactivities there at the School District.  Why do you think the school \nshould be responsible for your hand problems? \nA: Yes, sir.  The reason why I think is if it wasn’t from the fall, it was \nthe day-to-day activity I had to do, the repetitive on my job. \nQ: When you say repetitive activities, what are you talking about? \nA: The  sweeping,  the  mopping,  the  dusting,  the everyday things  that  I \ndid, vacuuming. \n\n10 \n \n(T. 38).  \n  The aforementioned testimony makes it abundantly clear the claimant is essentially guessing \nthat the fall caused her bilateral CTS; or that maybe it was the pressure she put on the cart with her \nleft hand that caused the left wrist injury; or maybe it was the alleged rapid, repetitive job duties of \nher custodial work that caused her bilateral CTS. There exists no evidence the claimant’s job duties \nwere rapid or repetitive. The claimant’s aforementioned testimony is subjective, self-serving, and \nsimply incredible. I had the opportunity to closely observe the claimant as she testified under oath. \nHer demeanor, her manner of testifying, the way she responded to her attorney’s simple, direct \nquestions, and other factors obvious even from a fair and objective reading of the hearing record, \nconclusively demonstrate the claimant’s testimony to be wholly speculative. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co., supra. It must also be noted \nthe claimant’s obviously speculative testimony concerning how her alleged injury(ies) occurred \nwas both implausible and incredible.    \n  Second,  and  significantly, the  medical  evidence is  insufficient  to  prove  the  claimant \nsustained either a specific incident or a gradual onset injury to either or both her right or left wrist. \nThe claimant’s testimony as compared to the medical evidence in the record is instructive and \nrevealing in this regard. The claimant testified she never told her doctors she had problems with \nher hands (or her feet) before October 5, 2021. (T. 45). She reported to both Drs. Patel and Saldino \nthat she fell pushing a cart at work. (T. 43). When Dr. Saldino examined the claimant one (1) week \nafter  the fall  of October  12,  2021, the  claimant reported  pain in her  left  dorsal  foot – but, \nsignificantly, she made no mention whatsoever of either right or left hand/wrist pain or other \nsymptoms. (Respondents’ Exhibit 1 at 1-4). Then some six (6) days thereafter the claimant saw Dr. \n\n11 \n \nPatel on October 18, 2021, seeking care for “left foot problem, bilateral swelling in hands.” \n(Claimant’s Exhibit 1 at 7). Dr. Patel’s report of this office visit states the claimant, “Has been \nhaving bilateral foot pain. Has seen Dr. Saldino recently. Reports feet swelling. Has been hurting \nfor years.”  (CX1 at 7-8) (Emphasis added).  \n  Moreover, the claimant made no mention of any problems with her hands when she returned \nto see Dr. Saldino on October 26, 2021; November 1, 2021; and December 2, 2021. 12/2/21. (RX1 \nat 5-10). Thereafter, on January 3, 2022, the claimant provided the following history to her treating \nphysician: \nHe [sic] states that she is getting a neurological testing for her hands and feet as she \nis concerned that there may be a carpal tunnel syndrome.  Both the feet and the hands \nare painful and are keeping her up at night.  She states that her feet have become so \npainful  that  she  cannot  do  basic  housework. Apparently, there  is  some  type  of \nWorkers’ Compensation claim.  She indicates she is wearing the boot on a regular \nbasis. As her pain has not improved. \n(RX1 at 11) (Bracketed material added). \n Dr. Saldino completed paperwork for the claimant’s disability claim with American Fidelity, and \nhe documented that her diagnosis was left and right posterior tibial tendonitis, which indicated was \nnot work-related. (RX1 at 13). The medical record is devoid of any evidence, much less sufficient \nevidence, demonstrating the claimant’s bilateral CTS was the result of either a specific or an alleged \ngradual onset injury as the Act defines such an injury(ies).  \n Third, claimant’s failure to provide timely notice of either a right or left wrist injury provides yet \nfurther evidence (if any were needed, which I do not believe it is) the claimant was unsure as to \nwhat cased her bilateral CTS complaints. Ark. Code Ann. § 11-9-701 (2024 Lexis Repl.) provides: \n(a)(1) Unless an injury either renders the employee physically or mentally unable \n to do so, or is made known to the employer immediately after it occurs, the \n employee  shall  report  the  injury  to  the  employer  on  a  form  prescribed  or \n approved by the Workers' Compensation Commission and to a person or at \n a place specified by the employer, and the employer shall not be responsible \n\n12 \n \n for disability, medical, or other benefits prior to receipt of the employee's \n report of injury. \n(2)  All reporting procedures specified by the employer must be reasonable and \n shall afford each employee reasonable notice of the reporting requirements. \n(3)  The  foregoing  shall  not  apply  when  an  employee  requires  emergency \n medical treatment outside the employer's normal business hours; however, \n in that event, the employee shall cause a report of the injury to be made to \n the employer on the employer's next regular business day. \n(b)(1) Failure to give the notice shall not bar any claim: \n(A) If the employer had knowledge of the injury or death; \n(B) If the employee had no knowledge that the condition or disease arose out of \n and in the course of the employment; or \n(C) If  the  commission  excuses  the  failure  on  the  grounds  that  for  some \n satisfactory reason the notice could not be given. \n(2) Objection to failure to give notice must be made at or before the first hearing \n on the claim. \n  The claimant completed three (3) documents acknowledging she was aware of the required \nprocedures concerning how to report an alleged work-related injury. (T. 47; Respondents’ Exhibit \n2 at 1-3). When she completed her application for disability benefits with American Fidelity on \nNovember 1, 2021, she stated her disability was due to “illness” as opposed to “accident.” (T. 47-\n48: RX2 at 5). Thereafter, on January 6, 2022, the claimant completed and signed a Form AR-N \nalleging she had injured her left foot and right hand trying to push a cart. (T. 48; RX2 at 9). At the \nhearing the claimant admitted she would have told the adjuster she hurt her left foot and right hand \nwhen her statement was taken if this were in fact the case.  (RX2 at 18; T. 48). Admittedly, the \nclaimant did not even allege the left CTS injury until she filed her Form AR-C on October 3, 2023, \nwhich states, “carpal tunnel syndrome—bilateral,” and lists a specific injury date of October 5, \n2021. (T. 5; CX1 at 119-120).  \n  Finally, the assistant principal at Lafayette County Elementary School, Mr. Shane Crank, \ntestified at the hearing and explained the procedure an employee is instructed to follow in reporting \n\n13 \n \nan alleged work-related injury. I found Mr. Crank to be an unbiased, articulate, and wholly credible \nwitness. He confirmed the Form AR-P was and is located in the teachers’ lounge. (T. 51-52). Mr. \nCrank further testified he was present on October 5, 2021, and he recalled the claimant telling him \nshe hurt her ankle in the foyer before the kids came in. (T. 53). He testified under oath he did not \nrecall her saying anything about having hurt either her left or right hand. (T. 54). Mr. Crank’s \ntestimony is consistent with all the aforementioned evidence demonstrating the claimant was \nunsure as to what was causing or had caused her bilateral hand/wrist pain/CTS.  \n           Finally, while the S/L issue would have been a threshold issue in this claim, it is clear there \nexists  insufficient  evidence  demonstrating  this  claim  is  barred  by  the  applicable  statute  of \nlimitations set forth in Ark. Code Ann. Section 11-9-702 (2024 Lexis Repl.). Therefore, I have not \nand will not discuss that issue in other than this conclusory manner.  \n  As usual, both of these experienced, credible, well-respected attorneys did an excellent job \npreparing for and trying this case, and in-writing their post-hearing briefs, which this ALJ very \nmuch appreciates. Again, based on the applicable provisions of the Act and other applicable law, \nsupra, as compared to the totality of the evidence of record, I am compelled to find the claimant \nhas failed to meet her burden of proof in demonstrating she has sustained a compensable injury to \neither her left and/or right wrist(s). \n  Therefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed December 11, \n2023, hereby are accepted as facts.  \n \n2. There exists insufficient evidence this claim is barred by the \napplicable statute of limitations of Ark. Code Ann. Section 11-9-702. \n \n3. The claimant has failed to meet her burden of proof that she has \nsustained either a specific incident or a gradual onset compensable \n\n14 \n \ninjury to either or both her right or left wrist. \n \n4. The claimant’s attorney is not entitled to a fee on these facts.  \n \n Therefore, for all the aforementioned reasons this claim hereby is denied and dismissed \nsubject to the parties’ respective statutory appeal rights. If they have not already done so, the \nrespondents shall pay the court reporter’s invoice within 20 days of their receipt of this opinion. \n IT IS SO ORDERED. \n \n        \n \n       Mike Pickens \n                  Administrative Law  \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n\n15 \n \nMP/mp","textLength":26967,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109984 SHAUNA D. TORRENCE, EMPLOYEE CLAIMANT LAFAYETTE COUNTY SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BD. ASS’N WORKERS’ COMPENSATION TRUST/ARKANSAS SCHOOL BDS. ASS’N, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JULY 24, 2024 Hearing conduc...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:4"],"injuryKeywords":["carpal tunnel","wrist","repetitive","strain","ankle"],"fetchedAt":"2026-05-19T22:51:56.102Z"},{"id":"alj-H204853-2024-07-23","awccNumber":"H204853","decisionDate":"2024-07-23","decisionYear":2024,"opinionType":"alj","claimantName":"Justin Calloway","employerName":null,"title":"CALLOWAY VS. CLEAN HARBORS ENVIRONMENTAL SERVICES, INC.AWCC# H204853July 23, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CALLOWAY_JUSTIN_H204853_20240723.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CALLOWAY_JUSTIN_H204853_20240723.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                 AWCC CLAIM NO.: H204853 \n \nJUSTIN CALLOWAY,  \nEMPLOYEE                                                                                                                 CLAIMANT                                                    \n \nCLEAN HARBORS ENVIRONMENTAL SERVICES, INC.,  \nEMPLOYER                                                                                                            RESPONDENT  \n \nINDEMITY INSURANCE COMPANY OF NORTH AMERICA \n(PA), INSURANCE CARRIER                                                                              RESPONDENT \n                                                                             \nSEDGWICK CLAIMS MANAGEMENT SERVICES, INC., \nTHIRD PARTY ADMINISTRATOR (TPA)                                                         RESPONDENT \n                                                                                                                                                                                  \n                                               \nOPINION FILED JULY 23, 2024    \n \nHearing  held  before Administrative Law Judge Chandra L.  Black, in El  Dorado, Union \nCounty, Arkansas. \n  \nThe Claimant, pro se, did not appear at the hearing. \n \nRespondents represented by the Honorable Rick Behring, Jr., Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis  matter  comes  before  the  Commission pursuant  to the  Motion  to  Dismiss filed by \nRespondents.    A  hearing  on  the Respondents’ motion for  dismissal was  conducted  on July  17, \n2024, in El Dorado, Arkansas.   \nThus, the sole issue for determination to be addressed at the hearing was whether this claim \nshould be dismissed due to the Claimant’s failure to prosecute it under Ark. Code Ann. §11-9-702 \n(a)(4), §11-9-702 (d)  (Repl.  2012),  and/or Arkansas Workers’ Compensation  Commission Rule \n099.13. \n\nCALLOWAY – H204953 \n \n2 \n \n The record consists of the July 17, 2024, hearing transcript and the documentary evidence \nheld therein.  Specifically, admitted into evidence was Commission’s Exhibit 1, which consists of \nfive (5) pages; and Respondents’ Exhibit 1, comprising of pleadings, correspondence and forms \nrelated to this claim, consisting of fourteen numbered pages.   \n No testimony was taken at the hearing. \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by   \nlaw.   \n        Discussion \nThe record reflects the following procedural history: \nThe Claimant’s former attorney filed a Form AR-C with the Commission on July 6, 2022, \nasserting Claimant’s entitlement to Arkansas workers’ compensation benefits.  Per this document, \nthe Claimant’s attorney described the cause of injury as follows: “Claimant sustained injuries to \nmultiple body parts including not necessarily limited to his back, lumbar spine and thoracic spine \nincluding neuropathy.”  His accidental work-related injury occurred on June 17, 2022.  According \nto this document, the Claimant’s counsel checked off all the boxes for both initial and additional \nworkers’ compensation benefits.  Yet, at that time, there was no request for a hearing made by the \nClaimant’s attorney.       \nOn  or  about July  28, 2022, the  Respondents filed  a  Form  AR-2  with  the  Commission \naccepting liability for the Claimant’s back injury in this claim.  Specifically, per this document, \nthe claims adjuster stated that the first date that payment for indemnity benefits was triggered on \nJuly 7, 2022. \nThe  Claimant’s  former  attorney  requested  to  withdraw  as  counsel  of  record for  the \nClaimant in  this  matter  on September  15,  2023.    The  Full  Commission  entered  an  order  on \n\nCALLOWAY – H204953 \n \n3 \n \nSeptember 26, 2023, granting the Claimant’s attorney motion to withdraw from representing the \nClaimant in this workers’ compensation claim.   \n Still, the Claimant has not attempted to pursue or otherwise resolve his claim for workers’ \ncompensation benefits since the filing of the Form AR-C on July 6, 2022. \nOn February 1, 2024, the Respondents filed a Motion to Dismiss and Incorporated Brief in \nSupport which  was accompanied  by  a  certificate  of  service  to  the Claimant.    According  to  this \ncertification,  the  Respondents’ attorney served  a  copy  of  the aforementioned pleading  on  the \nClaimant by depositing a copy thereof in the United States Mail.   \nThe  Commission  sent  a  letter  advising  the  Claimant notifying  him of the Respondents’ \nmotion on May 9, 2024.  Said letter was sent via certified mail and first-class mail.  Per this letter, \nthe Claimant was given twenty (20) days from the date of the letter to file a written response to the \nmotion.  \nThe above letter  mailed  to  the  Claimant  by  first-class  mail  has  not  been  returned  to  the \nCommission.  However,  the  letter  mailed  to  the  Claimant  by  certified  mail  was  returned  to  the \nCommission marked as “Return to Sender – Unclaimed – Unable to Forward.”      \nStill, to date, there has been no response from the Claimant in this regard. \nOn February 15, 2024, the Respondents’ attorney requested that his dismissal request be \nheld  in  abeyance,  pending  the  resolution  of an  outstanding  issue  of  payment  for  the Claimant’s \npermanent partial disability benefits.  Said request for holding the motion for dismissal in abeyance \nwas granted.  However, on May 9, 2024, the Respondents’ attorney renewed his motion to dismiss.   \nTherefore, on May 30, 2024, the Commission sent a Notice of Hearing to the parties letting \nthem know that a hearing was scheduled on the Respondents’ motion to dismiss.  The hearing was \nset for Wednesday, July 17, 2024, in El Dorado, Arkansas.   \n\nCALLOWAY – H204953 \n \n4 \n \nSaid notice was mailed to the Claimant by way of certified and first-class mail.       \nTracking information received by the Commission from the United States Postal Service \nshows they  were  unable  to deliver  this  item to  the  Claimant.  However,  the  letter  mailed  to  the \nClaimant via first-class mail has not been returned to the Commission.     \nStill, there has been no response from the Claimant.   \nHowever,  a hearing  was in  fact conducted on the Respondents’ motion  to dismiss as \nscheduled.  The Claimant failed to appear at the hearing to object to the claim being dismissed.  \nNevertheless, the Respondents’ attorney moved that the claim be dismissed under Ark. Code Ann. \n§11-9-702 (a)(4), §11-9-702 (d),  and Commission Rule  099.13 due to the Claimant’s failure to \nprosecute his claim.  Counsel for the Respondents also indicated that all appropriate benefits have \nbeen paid and the Claimant has returned to work for the respondent-employer. \nAdjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in the \nmotion for dismissal of these claims due to a lack of prosecution are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nAdditionally, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \n \n \n\nCALLOWAY – H204953 \n \n5 \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \nReview of the evidence shows that the Claimant has failed to respond to the written notices \nof this Commission and did not appear at the hearing to object to the dismissal.  Moreover, since \nthe  filing  of  the  Form  AR-C more  than  six  months  ago after  the  filing  of  the  claim,  which  was \ndone in July 2022, the Claimant has not requested a hearing.   \nConsidering all the foregoing, I am compelled to conclude that the Claimant has abandoned \nhis claim for workers’ compensation benefits.  \nAccordingly,  based  on my  review  of  the documentary  evidence,  and  all  other  matters \nproperly before the Commission, I find that the Respondents’ motion  to dismiss  this  claim is \nwarranted under  the  provisions  of Ark.  Code  Ann.  §11-9-702 (a)(4), §11-9-702 (d),  and Rule \n099.13 of this Commission.  Said dismissal is without prejudice, to the refiling of this claim within \nthe limitation period specified by law. \n                                 FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n\nCALLOWAY – H204953 \n \n6 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. Claimant’s former attorney filed a Form AR-C with the Commission in this \nmatter  asserting  the  Claimant’s entitlement to workers’  compensation \nbenefits due to an incident occurring at work on June 17, 2022. \n \n3. Subsequently, the Claimant’s attorney filed a motion to be relieved as \ncounsel of record, which was granted by the Full Commission.  \n \n4. Since this time, and the filing of the Form AR-C, the Claimant has failed to \nmake a bona fide request for a hearing in this matter.    \n \n5. The  Respondents  filed  a Motion to Dismiss and Incorporated  Brief in \nSupport with the Commission on February 1, 2024. \n \n6.         Reasonable notice of the Motion to Dismiss and hearing was had on all the \nparties. The   Claimant   has   failed   to   respond   to   the   notices   of   this \nCommission and did not appear at the hearing to object to his claim being \ndismissed.   \n \n7.        The evidence preponderates that the Respondents’ motion to dismiss this  \n            claim for a lack of prosecution is warranted.   \n \n8.        That the Respondents’ motion to dismiss is hereby granted pursuant to Ark.  \nCode  Ann.  §11-9-702 (a)(4), §11-9-702 (d),  and  Rule 099.13 without \nprejudice, to the refiling of the claim within the specified limitation period.   \n \nORDER \nIn accordance with the foregoing findings of fact and conclusions of law, this claim is  \nhereby dismissed without prejudice, pursuant to Ark. Code Ann. §11-9-702 (a)(4), §11-9-702 (d),  \nand Commission Rule 099.13 to the refiling of it within the specified limitation period.        \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":12044,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H204853 JUSTIN CALLOWAY, EMPLOYEE CLAIMANT CLEAN HARBORS ENVIRONMENTAL SERVICES, INC., EMPLOYER RESPONDENT INDEMITY INSURANCE COMPANY OF NORTH AMERICA (PA), INSURANCE CARRIER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., THIRD PARTY ADMINISTRA...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":["back","lumbar","thoracic"],"fetchedAt":"2026-05-19T22:51:51.856Z"},{"id":"alj-H306917-2024-07-22","awccNumber":"H306917","decisionDate":"2024-07-22","decisionYear":2024,"opinionType":"alj","claimantName":"Steve Gray","employerName":null,"title":"GRAY VS. VISKASE COMPANIES, INC.AWCC# H306917July 22, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Gray_Steve_H306917_20240722.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Gray_Steve_H306917_20240722.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306917 \n \nSTEVE GRAY, EMPLOYEE CLAIMANT \n \nVISKASE COMPANIES, INC., \nEMPLOYER RESPONDENT \n \nTRUMBULL INS. CO.,  \nCARRIER                       RESPONDENT \n \nTHE HARTFORD,  \nTPA                       RESPONDENT \n \nOPINION FILED JULY 22, 2024 \n \nHearing before Administrative Law Judge Steven Porch on June 14, 2024, in Jonesboro, Arkansas. \n \nClaimant represented by Mr. George H. Bailey, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented by Mr. Randy P. Murphy, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on June 14, 2024. A prehearing telephone conference \ntook place on April 16, 2024. A prehearing order was entered on that date and subsequently entered \ninto evidence, with amendments by the parties, as Commission Exhibit 1. The parties’ stipulations \nare set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. An  employer/employee/carrier relationship  existed among  the  parties  on \nOctober 13, 2023, when Claimant sustained a compensable injury to his left \nfibula and lower extremity. \n \n3. Respondents  accepted  this claim  as compensable  and  paid  some  related \nbenefits. \n \n\nGRAY H306917 \n \n2 \n \n 4.  The parties have stipulated to Claimant’s average weekly wage that entitles \nhim  to  a  temporary  total  disability  rate  of  $835  and  a  permanent  partial \ndisability rate of $626 a week. \n \nISSUES \n The parties have identified the following issues\n1\n to be adjudicated: \n1. Whether  Claimant  sustained  injuries  to  his  left  foot,  left lower  extremity above the \nknee,  and  left  lower  extremity below  the  knee as a  compensable  consequence  of his \nstipulated compensable injuries. \n \n2. Whether Claimant is entitled to an anatomical physical impairment determination for \nhis left foot, left lower extremity below the knee and above the knee. \n \n3.  Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s Contentions: The Claimant contends that he is entitled to multiple impairment \nratings. Those claimed are as follows: 9% to the left foot; 3% to the left lower extremity below the \nknee; and 3%  to  the  left  lower  extremity  above  the  knee.  The  rating  of  3%  to  the  left  lower \nextremity below the knee and the 3% rating to the left lower extremity above the knee are each \nalleged to be a compensable consequence under Arkansas Worker’ Compensation Law as the same \nare based on the muscle atrophy occurring as a result of, and subsequent to the fracture injury.\n2\n \nRespondents’ Contentions: Respondents contend that the Claimant has received all benefits \nto which he is entitled for the compensable injury. \n \n1\n Issue 1, whether Claimant is entitled to additional reasonable and necessary medical \ntreatment and unpaid medically related travel expenses; and Issue 2, whether Claimant is entitled \nto temporary partial disability benefits, have been resolved by the parties and are no longer issues \nfor this hearing. \n \n2\n Claimant amended his contentions through a letter from his counsel, George Bailey, on \nJune 3, 2024. This amendment was accepted. \n\nGRAY H306917 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, non-medical documents, \npost hearing briefs from the parties, and other matters properly before the commission, and having \nthe opportunity to hear the testimony of the Claimant and to observe his demeanor, I hereby make \nthe following findings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The  Claimant has  proven  by  the  preponderance  of  the  evidence  that he  sustained  a \ncompensable  injury  to  his left lower  extremity above  the  knee,  left lower  extremity \nbelow  the  knee,  and  left  foot  as  a compensable  consequence of  his stipulated \ncompensable injuries. \n4.   The  Claimant has  proven  by  the  preponderance  of  the  evidence  that  he  is  entitled  to \nimpairment ratings of 3% to his left leg above the knee, 3% to his left leg below the \nknee, and 9% to his left foot. \n5.  Claimant has proven by the preponderance of the evidence that his attorney is entitled \nto a controverted attorney’s fee. \nCASE IN CHIEF \nSummary of Evidence \n The sole witness  at  the  hearing  was the Claimant. In  addition  to  the  prehearing  order \ndiscussed  above, I also have admitted  into  evidence Claimant’s Exhibit  1,  medical  records, \nconsisting of 46 pages, Claimant’s Exhibits 2, non-medical documents, correspondence, pleadings, \nconsisting of 47 pages, Claimant’s Exhibit 3, payment record, consisting of 1 page, Respondents’ \n\nGRAY H306917 \n \n4 \n \nExhibit 1,  Claimant’s  return  to  work  document,  consisting  of  1  page,  Respondents’  Exhibit  2, \npotential settlement letter dated, May 7, 2024, consisting of one 1 page, and Respondent Exhibit \n3,  functional  capacity  letter  dated  March  21,  2024,  consisting  of  1  page.  Claimant’s  and \nRespondents’ post hearing briefs are blue-backed and made a part of this record. I have also blue-\nbacked the final page of the impairment rating signed by Dr. Michael Haughey.  \nClaimant worked as a maintenance mechanic for Respondent/Employer. On October 13, \n2023, while working for the Respondent/Employer, Claimant slipped on a gel-like substance on \nthe floor, causing him to fall and suffer a broken left fibula. Respondent/Employer was made aware \nof this incident on the same day. Respondent has accepted this claim as compensable and has paid \nbenefits. Claimant  underwent  surgery  on  October  27,  2023,  performed  by  Dr. Haughey.  Dr. \nHaughey installed permanent hardware to secure Claimant’s left ankle.  \nThe Claimant was later referred by Dr. Haughey for a functional capacity evaluation and \nan impairment rating evaluation. The Functional Capacity Evaluation (“FCE”) was conducted on \nMarch 5, 2024, and concluded that the Claimant could return to work at the medium classification \nof work. The impairment evaluation summary, conducted on the same date as the FCE, resulted in \nan assignment of “2% Whole Person, 6% Lower Extremity, 9% Foot Impairment as a work-related \ninjury.” The  Impairment  Rating Summary  and  FCE were prepared  by  a  certified  occupational \ntherapist, Casey Garretson, and Dr. Haughey signed and agreed with the impairment evaluation.\n3\n \nSee Claimant’s Exhibit 1, pp. 41-45, and blue-backed signed impairment rating. The rating follows \nthe AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition. The report includes \n \n3\n I am hereby reversing my decision at the hearing to not include the signed last page of \nthe FCE since it was in violation of the seven-day time limit prescribed in my prehearing order. \nThe unsigned FCE is a part of the record. Therefore, allowing the final page of that report signed \nby Dr. Haughey would not prejudice the Respondents. This final page will be blue-backed and \nmade a part of the record. \n\nGRAY H306917 \n \n5 \n \na finding that there was muscle atrophy in the Claimant’s left foot, left thigh, and left calf. Based \non the report, due to the reduced circumference of the left thigh by 1 cm and left calf by 1.2 cm, \nthe Claimant was assigned an impairment rating to the left thigh of 3% and the left calf of 3%. The \nreport combined these ratings to reflect a 6% lower left extremity impairment. The Claimant’s left \nfoot eversion of 2% resulted in a 9% impairment rating. \nThe FCE combined 6% impairment rating for the lower left extremity below the knee and \nabove the knee was accepted by Respondents. Respondents paid Claimant $4,936.00 based on this \n6% rating. However, Claimant disagrees with this amount. The Claimant argues that the 6% rating \nthat  was  based  on  two  ratings  of  3%  above  the  knee  and  3%  below  the  knee  was deficient  by \n$979.70. Claimant, in comparison, using the maximum compensation rate, 3% below the knee is \n$2,460.18, and 3% above the knee is $3,455.52, for a total of $5,915.70.  \nAdjudication \nA. Whether Claimant sustained injuries to his left foot, left lower extremity above the knee \nand left  lower  extremity  below the  knee due  to a compensable  consequence  of  the \nwork-related injury. \n \n Standard.  If an injury is compensable, every natural consequence of that injury is likewise \ncompensable.  Air Compressor Equip. Co. v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000).  The \ntest is whether a causal connection between the two episodes exists.  Id.; Jeter v. McGinty Mech., \n62 Ark. App. 53, 968 S.W.2d 645 (1998).  The existence of a causal connection is a question of \nfact for the Commission.  Id.; Carter v. Flintrol, Inc., 19 Ark. App. 317, 720 S.W.2d 337 (1986).  \nIt  is  generally  a  matter  of  inference,  and  possibilities  may  play  a  proper  and  important  role  in \nestablishing that relationship.  Osmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W.2d \n875  (1992).    It  is  not  essential  that  the  causal  connection  be  established  via  medical  evidence.  \nKoster v. Custom Pak & Trissel, 2009 Ark. App. 780, 2009 Ark. App. LEXIS 947; Gerber Prods. \n\nGRAY H306917 \n \n6 \n \nv. McDonald, 15 Ark. App. 226, 691 S.W.2d 879 (1985).  Under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012), Claimant has the burden of establishing the existence of a compensable consequence \nby a preponderance of the evidence. \n The parties have stipulated that Claimant’s injury, a lateral malleolar fracture of the left \nlower  extremity,  a  broken  ankle,  was  a  compensable  injury.  Claimant  underwent  surgery  on \nOctober 27, 2023, where permanent hardware was placed and affixed, including a six-hole metal \nfibular plate and various locking screws. Due to this surgery, the Claimant did not have full use of \nhis left leg and foot for several weeks. According to the FCE and Impairment Evaluation Summary, \nthe Claimant sustained atrophy of 1 centimeter to his left thigh, atrophy of 1.2 centimeters to his \nleft calf, and a 2% eversion to the left foot. See Claimant’s Exhibit 1, pages 42, 43, and 45. I credit \nthis report. The  Impairment Rating Summary and FCE were prepared at the Functional Testing \nCenters,  Inc,  by a  certified  occupational  therapist,  Casey  Garretson,  and Rick  Byrd,  Emeritus, \nCertified Senior Disability Analyst. Dr. Haughey signed and agreed with the findings of this report. \nThe  law  is  clear  that  the  Commission  is  authorized  to  accept  or  reject  a  medical  opinion  and  is \nauthorized  to  determine  its  medical  soundness  and  probative  value. Poulan  Weed  Eater  v. \nMarshall,  79  Ark.  App.  129,  84  S.W.3d  878  (2002). Based  on  the  surgical  procedure  and  the \nhardware installed into the left ankle (See Claimant’s Exhibit 1, pages 10-12), the FCE, and the \nImpairment Evaluation Summary, it is clear that this atrophy is a direct result of the work-related \ninjury, the left ankle fracture, preventing the full and continued use of the left leg and left foot for \nseveral  weeks.  Thus,  Claimant  has  proven  by  the  preponderance  of  the  evidence  that  he  has \nsustained an  injury,  via muscle  atrophy, to  his  left foot,  left calf, and left thigh,  consistent  with \nCasey  Garretson  and  Rick  Byrd’s  Impairment  Rating  Summary  and  FCE as  a  compensable \nconsequence of his work-related injury, a broken left ankle. This leaves the question of a physical \n\nGRAY H306917 \n \n7 \n \nimpairment rating therefor. \nB.  Whether Claimant is entitled to an Anatomical Physical Impairment determination for \nhis left foot, left lower extremity below the knee and above the knee. \n \nStandard.  Permanent  impairment,  generally  a  medical  condition,  is  any  permanent \nfunctional  or  anatomical  loss  remaining  after  the  healing  period  has  been  reached.   Ouachita \nMarine v. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969).  Pursuant to Ark. Code Ann. § 11-9-\n522(g)  (Repl.  2002),  the  Commission  adopted  the Fourth  Edition  of  the AMA  Guides  as  an \nimpairment rating guide.  See AWCC R. 099.34.   A determination of the  existence or  extent of \nphysical impairment must be supported by objective and measurable physical or mental findings.  \nArk.  Code  Ann.  §  11-9-704(c)(1)(B)  (Repl.  2012).    Permanent  benefits  are  to  be  awarded  only \nfollowing  a  determination  that  the  compensable  injury  is  the  major  cause  of  the  disability  or \nimpairment.  Id. § 11-9-102(F)(ii).  “Major cause” is defined as “more than fifty percent (50%) of \nthe cause,” and a finding of major cause must be established by a preponderance of the evidence.  \nId. § 11-9-102(14).  Any medical opinion must be stated within a reasonable degree of medical \ncertainty.  Id. § 11-9-102(16). \n Discussion.  Based on the Impairment Rating Summary and FCE, the Claimant sustained \natrophy of 1 centimeter to his left thigh, and atrophy of 1.2 centimeters to his left calf, and a 2% \neversion to the left foot resulting in a 9% impairment rating. See Claimant Exhibit 1, pages 42, 43, \nand 45.  These are clear objective findings. But for the work-related left ankle injury, followed by \nthe  surgery,  disrupting  the  continued  and  full  use  of  his  left  leg  and  foot  for  several  weeks, \nClaimant  would  not  have  experienced  atrophy  to  his  left  thigh, calf and  foot.  Therefore,  I  find \nClaimant has proven by the preponderance of the evidence that he has sustained an injury to his \nleft foot, left calf, and left thigh, with objective findings of muscle atrophy consistent with Casey \nGarretson and Rick Byrd’s Impairment Rating Summary and FCE. I further find that Claimant’s \n\nGRAY H306917 \n \n8 \n \nwork-related compensable injury was a major cause of the left thigh, calf, and foot impairment; \nand as such, the Claimant is entitled to a 3% impairment rating to the left lower extremity above \nthe  knee,  and  a  3%  impairment  rating  to  the  left  lower  extremity  below  the  knee,  and  a  9% \nimpairment  rating  to  the  left  foot  consistent  with  Casey  Garretson and Rick Byrd’s Impairment \nRating Summary and FCE.  \n The impairment rating report makes clear that Claimant’s muscle atrophy impairment is \nthe greatest impairment and is the most appropriate, applicable impairment for him. See Claimant’s \nExhibit 1, page 45. During the hearing, Claimant testified, very convincingly, that all his issues \ninvolving his left leg have resolved. See Transcript page 46, lines 16-25, to page 47, lines 1-22. \nHowever, whether the muscle atrophy did in fact resolve is unclear. Claimant had serious hardware \ninstalled to secure his ankle. Though he has some range of motion with the permanent hardware, \nit  stands  to  reason  he  does  not  have full  range  of  motion  with  the  installation  of  the  hardware. \nMoreover, since Claimant may not be experiencing symptoms does not meant that the atrophy has \nindeed  resolved. Simply  stated,  we  will  need  another  FCE  to  make  that  determination. Thus,  I \ndon’t credit Claimant’s testimony in this respect  though I am  convinced he feels better. In  this \nrespect, I continue to credit the FCE and Impairment Evaluation Summary performed by Casey \nGarretson, Occupational Therapist,  and  Rick  Byrd, Emeritus, Senior  Disability  Analyst.  See \nClaimant’s Exhibit 1, page 45.  \nDuring the hearing, the argument was made that Respondents have accepted and paid the \n6% rating to  Claimant in  full  satisfaction of Claimant’s  impairment  to  the left  lower  extremity \nabove the knee and below the knee in an amount of $4,936.00. Claimant challenges this payment \nas full satisfaction of the 6% impairment rating. Claimant reasons that the 6% rating was based on \ntwo combined ratings of 3% above the knee and 3% below the knee. Claimant, in his calculation, \n\nGRAY H306917 \n \n9 \n \nusing  the  maximum statutory compensation  rate, shows 3% below  the  knee  ($82,006  x  .03) is \n$2,460.18, and 3% above the knee ($115,184 x .03) is $3,455.52, for a total of $5,915.70, resulting \nin a deficit of $979.70 owed by Respondent. Though I agree with Claimant’s calculation of the 6% \nimpairment rating, this argument was not officially made an issue before the Commission, and it \nwill not be formally addressed beyond this point. However, the Claimant is entitled to payment for \nthe left lower extremity below and above the knee, and his foot consistent with this opinion. \nC. Whether the Claimant is entitled to a controverted attorney’s fee. \n \nOne of the purposes of the attorney's fee statute is to put the economic burden of litigation \non the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 \n(1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B)  Attorney’s  fees  shall  be  twenty-five  percent  (25%)  of  compensation  for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a  deceased \nemployee  .  .  .  In  all  other  cases  whenever  the  commission  finds that  a  claim has \nbeen controverted, in whole or in part, the commission shall direct that fees for legal \nservices be paid to the attorney for the claimant as follows:  One-half (½) by the \nemployer or carrier in addition to compensation awarded; and one-half (½) by the \ninjured  employee  or  dependents  of  a  deceased  employee  out  of  compensation \npayable to them. \n \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have  controverted \nClaimant’s entitlement to the additional indemnity benefits awarded herein.  Thus, the evidence \npreponderates that Claimant’s counsel, the Hon. George Bailey, is entitled to a controverted fee \nthereon pursuant to the above provision. \nCONCLUSION AND AWARD \n Respondents are hereby directed to pay/furnish benefits in accordance with the findings of \nfact and conclusions of law set forth above. All accrued sums, minus any lawful offsets, shall be \npaid in a lump sum without discount, and this award shall earn interest at the legal rate until paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2002).  See Couch v. First State Bank of Newport, \n\nGRAY H306917 \n \n10 \n \n49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":18853,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H306917 STEVE GRAY, EMPLOYEE CLAIMANT VISKASE COMPANIES, INC., EMPLOYER RESPONDENT TRUMBULL INS. CO., CARRIER RESPONDENT THE HARTFORD, TPA RESPONDENT OPINION FILED JULY 22, 2024 Hearing before Administrative Law Judge Steven Porch on June 14, 2024, in Jonesbo...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["knee","fracture","ankle"],"fetchedAt":"2026-05-19T22:51:47.714Z"},{"id":"alj-H305632-2024-07-22","awccNumber":"H305632","decisionDate":"2024-07-22","decisionYear":2024,"opinionType":"alj","claimantName":"Adanna Robinson","employerName":null,"title":"ROBINSON VS. HINO MOTORS MFG. USA INC.AWCC# H305632July 22, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Robinson_Adanna_H305632_20240722.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Robinson_Adanna_H305632_20240722.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305632 \n \nADANNA ROBINSON, \nEMPLOYEE                                                                                                              CLAIMANT \n \nHINO MOTORS MFG. USA INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nFIRST LIBERTY INS. CO., \nCARRIER/TPA                                                                                                    RESPONDENT \n \nOPINION FILED JULY 22, 2024 \n \nHearing conducted on Friday, July 19,  2024,  before  the  Arkansas  Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant, Ms. Adanna Robinson, pro se, of West Memphis, Arkansas, did not appear in person \nat the hearing.  \n \nThe Respondents  were represented by  the Honorable Jason  M.  Ryburn, Little  Rock,  Arkansas. \nHowever, the Honorable Michael Ryburn argued the Motion to Dismiss. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on July 19, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe Claimant’s alleged injury occurred on May 25,  2023. Admitted  into  evidence  was \nRespondents’ Exhibit 1, Motion to Dismiss, consisting of one (1) page. I have also blue-backed \nForm AR-C, Form AR-2, a signed certified returned receipt (hearing notice) dated June 17, 2024, \nand a signed certified return receipt (Motion to Dismiss notice) dated May 25, 2024, and Motion \nto Dismiss Hearing Notice, as discussed infra. \nThe  record  reflects on August  29,  2023,  a  Form  AR-C  was  filed  against  Canadian \nExecutive Search Group, but this entity could not be located. Therefore, on November 13, 2023, \n\nROBINSON, AWCC No. H305632 \n \n2 \n \nan alternative Form AR-C, naming Hino Motors as the employer, was filed with the Commission \nthrough Claimant’s then-attorney, Mark Peoples, purporting a back and wrist injury. This report \ndoesn’t state which wrist was injured. Respondents on November 28, 2023, filed a Form AR-2, \nchallenging  the  compensability  of Claimant’s  alleged  injury. In  short,  this  report  states  that \nClaimant’s injury does not have support for a workers compensation injury. Attorney Mark Alan \nPeoples  entered  his  appearance  on  behalf  of the  Claimant  on  August  29,  2023. Attorney Jason \nRyburn entered his appearance on behalf of the Respondents on January 4, 2024. Attorney Peoples \nfiled a Motion to Withdraw on April 15, 2024. The Motion was granted on May 3, 2024. \nThe Respondents next filed a Motion to Dismiss on May 6, 2024, requesting this claim be \ndismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. Mail, notice \nof the Motion to Dismiss from my office on April 14, 2024, to her last known address of record. \nThe certified notice was claimed by Claimant on May 25, 2024. Likewise, the notice sent regular \nU.S. Mail was not returned to the Commission. Claimant did not respond to the notice in writing \nas required. Thus, in accordance with applicable Arkansas law, the Claimant was mailed due and \nproper legal notice of Respondents’ Motion to Dismiss hearing date at her current address of record \nvia the United States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, \nand regular First-Class Mail, on June 12, 2024. The certified notice was claimed by the Claimant. \nThe hearing took place on July 19, 2024. As mentioned before, the Claimant did not show up to \nthe hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n\nROBINSON, AWCC No. H305632 \n \n3 \n \n \n2. The  Claimant and  Respondents  both  had  reasonable  notice of  the July 19,  2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on the Respondents’ Motion to Dismiss. The hearing notice was claimed by \nClaimant on June 17,  2024. Despite  receiving  this  notice, the  Claimant  did  not  appear  at  the \nhearing. The Respondents, however, appeared on July 19, 2024, and argued their motion. Thus, I \nfind by the preponderance of the evidence that reasonable notice was given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  her Form  AR-C  on \nNovember 13, 2023. Since then, Claimant has not made a demand for a hearing or has taken any \nother action in furtherance of prosecuting this claim. In this regard, the Claimant has failed to do \nthe bare minimum in prosecuting her claim, i.e. requesting a hearing. Therefore, I do find by the \npreponderance of the evidence that Claimant has failed to prosecute her claim by failing to request \na hearing. Thus, Respondents’ Motion to Dismiss should be granted. \n \n \n \n \n\nROBINSON, AWCC No. H305632 \n \n4 \n \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted and this claim is hereby dismissed without prejudice. \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6225,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305632 ADANNA ROBINSON, EMPLOYEE CLAIMANT HINO MOTORS MFG. USA INC., EMPLOYER RESPONDENT FIRST LIBERTY INS. CO., CARRIER/TPA RESPONDENT OPINION FILED JULY 22, 2024 Hearing conducted on Friday, July 19, 2024, before the Arkansas Workers’ Compensation Commissi...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":["back","wrist"],"fetchedAt":"2026-05-19T22:51:49.783Z"},{"id":"alj-H305860-2024-07-19","awccNumber":"H305860","decisionDate":"2024-07-19","decisionYear":2024,"opinionType":"alj","claimantName":"Brenda Arnold","employerName":"Osceola Sch. Dist","title":"ARNOLD VS. OSCEOLA SCH. DIST. AWCC# H305860 July 19, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Arnold_Brenda_H305860_20240719.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Arnold_Brenda_H305860_20240719.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305860 \n \n \nBRENDA J. ARNOLD, EMPLOYEE CLAIMANT \n \nOSCEOLA SCH. DIST., \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCH. BDS. ASSN., \n THIRD-PARTY ADM’R RESPONDENT \n \n \nOPINION FILED JULY 19, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on June  21,  2024,  in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented by Mr. Daniel E. Wren, Attorney at Law, Little Rock, Arkansas. \n \nRespondents   represented   by   Ms. Melissa   Wood,   Attorney   at   Law,   Little   Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On June   21,   2024,   the   above-captioned   claim   was   heard   in Jonesboro, \nArkansas.    A  prehearing  conference  took  place  on  April  29,  2024.   The  Prehearing \nOrder  entered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection \nas  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissue, and respective contentions were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  They are the following, which I accept: \n1. The  Arkansas Workers’  Compensation  Commission (the  “Commission”) \nhas jurisdiction over this claim. \n\nARNOLD – H305860 \n \n2 \n2. The  employee/self-insured employer/third-party  administrator relationship \nexisted among the parties on August 30, 2023, when Claimant suffered a \ncompensable injury to her cervical spine. \nIssue \n The parties discussed the issue set forth in Commission Exhibit 1.  The following \nwas litigated: \n1. Whether Claimant  must  submit  to an  independent  medical  evaluation \nunder Ark. Code Ann. § 11-9-511 (Repl. 2012). \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are the following: \n Claimant: \n1. Respondents   have   no   standing   under § 11-9-511   to   request   an \nindependent medical evaluation.  That section of the Arkansas Workers’ \nCompensation Act is reserved specifically for the Commission sua sponte \nto require Claimant to submit to an evaluation. \n2. Respondents    are    requesting    that    Claimant    undergo    a    physical \nexamination  by  Dr.  Wayne  Bruffett,  who  was  specifically  chosen  by  an \nadjustor   for Respondents   and   thus   is   not   an   independent   qualified \nphysician  as  required  under § 11-9-811.    The  adjustor  never  discussed \nwith Claimant’s counsel the need for any further evaluation of Claimant \nprior  to  arranging  the  evaluation  in  question.    Moreover,  the  adjustor \n\nARNOLD – H305860 \n \n3 \nalready   had   the   surgical   recommendation   by   Dr.   James   Adametz \nreviewed by an outside physician. \n3. Claimant  has  been  examined  by  doctors  authorized  by  Respondents  just \nover  six  months  ago.    It  is  her  position  that  there  are  no  reasonable  and \nnecessary circumstances requiring another examination by any physician, \nmuch less one chosen by Respondents. \n4. Since Respondents are asking for a specific evaluation by Dr. Bruffett, and \nnot by an authorized doctor chose by the Commission, this matter should \nbe denied as a matter of law; no hearing thereon is necessary. \n Respondents: \n1. Respondents  contend  that all  appropriate  benefits  are  being  paid  with \nregard to Claimant’s injuries sustained on August 30, 2023.  At issue is \nher  entitlement  to  cervical  surgery  recommended  by  Dr.  Adametz.    The \nsurgery  did  not  pass  pre-certification;  and  Claimant  has  medical  records \nshowing pre-existing problems with her cervical spine. \n2. Respondents request an independent medical evaluation pursuant to Ark. \nCode  Ann. §§  11-9-511  &  11-9-811  (Repl.  2012).    In  addition  to  Dr. \nAdametz,  Claimant  has  also  treated  at  Ortho  Arkansas.   Respondents \nrequested and set up an independent medical evaluation with Dr. Bruffett \nat  the  University  of  Arkansas  for  Medical  Sciences  (“UAMS”),  and  he \nagreed  to  perform  the  evaluation.    Claimant’s  counsel  has  objected.  \nRespondents   contend   that   an   independent   medical   evaluation   is \n\nARNOLD – H305860 \n \n4 \nreasonable  and  necessary,  and  are  requesting  an  order  for  Claimant  to \nattend the same with Dr. Bruffett. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  deposition \ntestimony,  documents,  and  other  matters  properly  before  the  Commission,  and  having \nhad  an  opportunity  to  hear  the  testimony  of  Claimant  and  to  observe  her  demeanor,  I \nhereby  make  the  following  findings  of  fact  and  conclusions  of  law  in  accordance  with \nArk. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. A preponderance  of  the credible evidence establishes that  Claimant \nshould submit to an independent medical evaluation by Dr. Wayne Bruffett \nunder  Ark.  Code  Ann.  §  11-9-511(a) (Repl.  2012)  because  such  is \nreasonable and necessary.  The parties will work together to expedite this \nevaluation.  The  evaluation  shall  be  at  the  expense  of  Respondents.  \nClaimant  will  be  entitled  to  mileage  reimbursement  for  travel  to  and  from \nDr. Bruffett’s office in accordance with AWCC Advisory 89-2. \n\nARNOLD – H305860 \n \n5 \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n Along  with  the Prehearing Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case  consist  of  the  following:   Joint  Exhibit  1,  a  compilation  of \nClaimant’s  medical  records,  consisting  of  one  index  page  and  26  numbered  pages \nthereafter; and Respondents’ Exhibit 1, non-medical  records,  consisting  of  one  index \npage  and  ten  numbered  pages  thereafter  (including  a  disc  containing  surveillance \nfootage of Claimant). \nADJUDICATION \nWhether  Respondents  are  entitled  to  have  Claimant  undergo  an  independent \nmedical evaluation by Dr. Wayne Bruffett. \n Introduction.  As the parties have stipulated, Claimant sustained a compensable \ninjury to her cervical spine on August 30, 2023, while working for Respondent Osceola \nSchool  District.    In  this  action, Respondents  are seeking to  have  her undergo  an \nindependent medical evaluation by Dr. Bruffett. \n Standards.  Only by a preponderance of the evidence can it be established that \nshe must submit to the evaluation.  See Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012).  \nThe  standard  “preponderance  of  the  evidence”  means  the  evidence  having  greater \nweight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n\nARNOLD – H305860 \n \n6 \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Testimony.  Claimant testified that she injured her neck previously.  In 1991, she \njumped from a vehicle to get away from her husband, who was beating her.  As a result, \nshe wore a neck brace for three-and-a-half months.  Ten years ago, her neck was hurt \nagain  when  her  vehicle  was  struck  from  the  rear.    In  that  instance, she  was  again \nplaced in a neck brace for a time. \n As for the incident at issue, Claimant related that she fell at work.  She continued: \nWhen I fell, I landed on—I landed—well, I landed on the hip and my head \nwas on the ground.  Ms. Lee was in there, who’s my assistant principal.  \nAnd my neck—well, the hip hurt and the knee hurt.  This right here on my \nneck was just like immediately started hurting, and I told Ms. Lee.  And my \nback was hurting and she told me to be still, and I could not get up at all, \ncould not et up at all.  And I did ask, you know, what student, and she was \nmy girl I had been working with to help, you know.  But, anyway, my girl, \nshe’s the one that went and got the principal, so I appreciated that from \nher, but you know, I did tell Ms. Lee that I hurt my neck . . . . \n \nTrent  Tappan,  PA-C,  recommended  on  September  19,  2023,  that  she  undergo  an \ninjection in her neck.  He also recommended that she have a CT scan, which took place \nthat next day. \n\nARNOLD – H305860 \n \n7 \n Questioned  by  her  attorney,  it was Claimant’s testimony that she was unhappy \nwith  the  treatment  rendered  by  Tappan.    For  that  reason,  she  requested  and  was \ngranted  a  one-time  change  of  physician  to  Dr.  James  Adametz.    The  following \nexchange took place: \nQ. Are  you  happy  with  the  treatment  that  you’re  getting  with  Dr. \nAdametz? \n \nA. I love Dr. Adametz.  He knows what he’s doing.  He’s smart, he’s \nintelligent,  explains  everything.    He  is  so  professional,  so  smart.  \nAnd I trust him and he said he could help me, and that’s who I \nwant.  I don’t want nobody else. \n \nDuring her examination by the Commission, the following exchange occurred: \nQ. How many times have you seen Dr. Adametz, Ms. Arnold? \n \nA. Can I ask him [her attorney] to look?  I’ve seen him several, several \ntimes. \n \nQ. You don’t—it’s been multiple times? \n \nA. Oh, yes. \n \nQ. When’s the last time you saw Dr. Adametz, do you know? \n \nA. The  last  time  I  seen  him,  he  wanted  me  to  go  to  pre-op.    He \nwanted—he planned to— \n \nQ. Well, when was it? \n \nA. —do surgery February 21.  I believe it was in January when I saw \nhim last. \n \nQ. January of this year? \n \nA. Yes. \n \nQ. Okay.    And  you  know  the  issue  here  is  supposedly  the—the \nrespondents are wanting you to submit to the short term—the term \n\nARNOLD – H305860 \n \n8 \nfor  it  is  an  IME.    It  stands  for  independent  medical  evaluation,  do \nyou understand that? \n \nA. Yes. \n \nQ. Okay.    And  they  want  to  look  into  a  cervical  surgery  that  Dr. \nAdametz has recommended. \n \nA. Yes. \n \nQ. You understand that? \n \nA. Yes. \n \nQ. All  right.    Do  you  object  to  undergoing  an  independent  medical \nevaluation?    They’ve  set  it  up  with  Dr.  Wayne  Bruffett  is  my \nunderstanding.  Do you understand that? \n \nA. Yes. \n \nQ. Are you willing to submit to the IME or are you objecting to it? \n \nA. I totally object. \n \nQ. And why do you object to it? \n \nA. There’s no reason to see another doctor whatsoever.  And if that \ndoctor wanted to do surgery, I don’t know that man, I don’t trust that \nman.  I don’t know him, and also he’s—well, he’s a spine surgeon, \nand the neurosurgeon has got more education, etcetera.  And I like \nmy doctor, I trust my doctor, I don’t want to see—I don’t want to see \nthat other guy. \n \n Medical Records.  Claimant’s records in evidence reflect the following: \n On January 22, 2021, following a motor vehicle accident, Claimant presented to \nArkansas Methodist Medical Center and underwent, inter alia, a CT scan of her cervical \nspine.  It showed no acute process, but degenerative changes at multiple levels. \n\nARNOLD – H305860 \n \n9 \n After the work-related incident at issue, on September 19, 2023, she treated with \nTappan.  The report reads in pertinent part: \nHPI: \nMs.  Arnold  is  a  53-year-old  female  who  presents  to  the  clinic  for  a  new \nworker’s  [sic]  compensation  appointment.    She  reports  a  fall  at  work, \nwhere she is a teacher.  She describes the incident as having occurred in \na  room  that  was  not  properly  cleaned,  causing  her  to  trip  and  fall.    She \nlanded  on  her  hip,  which  had  previously  undergone  hip  replacement \nsurgery.  Since the fall, she has been experiencing pain in her spine, back, \nand  hip,  which  has  been  significantly  impacting  her  ability  to  stand  for \nextended  periods.    She  also  reports  that  her  neck  has  been  causing  her \nsignificant discomfort, despite not having experienced any neck pain prior \nto the fall.  She has a history of a broken C6 vertebrae from an incident in \n1991,  and  she  reports  that  her  neck  has  been  hurting  in  the  same  area \nsince  her  recent  fall.    She  has  been  taken  off  work  due  to  her  current \ncondition.  She is currently on Hydro 10/325 and a muscle relaxer for pain \nmanagement,  but  reports  that  these  medications  only  make  the  pain \nmanageable and do not eliminate it completely. \n \nPHYSICAL EXAM: \n+2  symmetric  reflexes  in  her  upper  and  lower  extremities.    Reasonable \ngood strength in her arms and legs bilaterally normal sensation.  Negative \nHoffmann’s.  Negative Spurling’s.  Negative clonus.  Tender to palpate in \nher neck midline.  No frank neurologic deficit. \n \nIMAGING: \nX-rays  of  her  cervical  spine  today  reveal  degenerative  changes  most \npronounced  at  C5-6.    MRI  of  her  cervical  spine  reveals degenerative \nchanges at C5-6 with some broad-based disc protrusion bilateral foraminal \nstenosis severe.  X-rays of her thoracic and lumbar spine reveal multilevel \ndegenerative changes spondylolisthesis at L4-5. \n \nASSESSMENT: \nI  had  a  long  visit  with  Ms.  Arnold  that [sic] her  symptoms  and  images.    I \nreassured her I think neck and back looks stable.  Most of her pain seems \nto   be   in   her   neck.   I   suspect   she  may   be   symptomatic   from   the \ndegenerative  changes  at  C5-6.    There  is  some  disc  protrusion.    I  just  do \nnot  see  any  obvious  acute injury but  she  may  have  been  rendered \nsymptomatic from a C5-6 stenosis and degeneration.  I told her ultimately I \nwould  leave  her  thoracic  and  lumbar  spine  alone.    We  did  discuss  an \ninjection at C5-6.  Ultimately I would not recommend surgery for right now \n\nARNOLD – H305860 \n \n10 \nI  told  her  this  I  think  will  improve  with  time.    I  would  recommend  an \nepidural  injection  at  C5-6.    I  am  going  to  put  her  back  to  work  on \nrestrictions.    No  prolonged  standing  or  sitting no  lifting  over  5  pounds.    I \ntold her I would plan to place her at MMI and release her after her return \nfrom the injection. \n \nThe  CT  scan  referenced  above,  when  compared  to  her  2021  scan,  did  have  new \nobjective  findings  in  the  forms  of  straightening  of  the  lordotic  curvature  and a minimal \ncentral disc protrusion at C4-5. \n Dr. Sumeet Vadera, a board-certified neurosurgeon, conducted a peer review of \nDr. Adametz’s surgical recommendation\n1\n on  February  12,  2024.    It  reads  in  pertinent \npart: \nSummary of Treatment/Case History: \nThis patient is a 53-year (date of birth 09/13/70) female with neck and low \nback pain.  The patient’s exam reveals no focus with deficit.  The MRI \nshows  stenosis  at  C4-5,  moderate  central  stenosis at  C5-6,  and  severe \nforaminal narrowing.  The patient has been recommended to undergo C4-\n5  and  C5-6 anterior  cervical  discectomy and  fusion  (ACDF)  with a  partial \ncorpectomy of C4, C5, and C6. \n \nExplanation of Findings: \n \n1.  Is the proposed Anterior Cervical Discectomy and Fusion at C-C5 \nand   C5-C6   with   partial   corpectomies   of   C4,   C5,   and   C6   using \nInstrumentation  placement  and  screws  with  allograft,  indicated  and \nmedically appropriate based on reported pain,  since the latest clinic \nnote  documented  improved  clinical  findings?    Please  explain  and \nprovide supporting rationale. \n \nNo.  The proposed Anterior Cervical Discectomy and Fusion at C4-C5 and \nC5-C6 with partial corpectomies at C4, C5, and C6 using Instrumentation \nplacement  and  screws  with  allograft,  is  not  indicated  and  not  medically \nappropriate   based   on   reported   pain,   since   the   latest   clinic   note \ndocumented improved clinical findings. \n \n \n1\nAs discussed at the hearing and more fully infra, Dr. Adametz’s report was not \nintroduced into the evidentiary record. \n\nARNOLD – H305860 \n \n11 \n \nBased  upon  the  standards  of  billing  and  coding,  a  partial  corpectomy \nrequires at least 50% of the vertebral body to be removed.  Therefore, it is \nnot appropriate for this patient, as there is no clear evidence to support a \npartial  corpectomy  in  this  patient.  In  addition,  there  is  only  mild  stenosis \nnoted  at  C  4-5,  Which  would  not  support  surgery.  Therefore,  the  entire \nsurgery  is  not  considered  medically  necessary  due  to  the  components \nlisted above. \n \n2.  If the  proposed Anterior  Cervical  Discectomy  and  Fusion  at  C4-C5  and \nC5-C6  with  partial  corpectomies  of  C4,  C5,  and  C6  using  Instrumentation \nplacement   and   screws   with   allograft is   not indicated or medically \nappropriate, is there an alternate procedure and/or treatment indicated and \nmedically appropriate? \n \nThe  alternate  procedure  and  treatment  that  is  indicated  and  medically \nappropriate  for  this  patient  would  be  a  C5-6  anterior  cervical  discectomy \nand fusion (ACDF), as there is moderate to severe stenosis noted at this \nlevel. \n \n3.  If the  proposed Anterior  Cervical  Discectomy  and  Fusion  at  C4-C5  and \nC5-C6  with  partial  corpectomies  of  C4,  C5,  and  C6  using  Instrumentation \nplacement and screws with allograft is indicated and medically appropriate, \nis  the  need  for  this  treatment  indicated  as  the  direct  result  of  the  08/30/23 \ninjury vs pre-existing degenerative spine disease?  Please explain. \n \nNot applicable. \n \nConclusion: \nThe proposed Anterior Cervical Discectomy and Fusion at C4-C5 and C5-\nC6  with  partial  corpectomies  of  C4,  C5,  and  C6  using  Instrumentation \nplacement  and  screws  with  allograft, is not indicated  and not medically \nappropriate based   on   reported   pain,   since   the   latest   clinic   note \ndocumented  improved  clinical  findings.    The alternate  procedure  and \ntreatment that is indicated and medically appropriate for this patient would \nbe a C5-6 anterior cervical discectomy and fusion (ACDF). \n \n Non-medical  Records.   Included in Respondents’ Exhibit 1 is a DVD containing \nsurveillance  footage  of  Claimant  taken  on  January  13  and  February  3,  2024.    The \nJanuary 13 footage depicts Claimant cleaning out a motor vehicle, while Claimant was \nobserved  on  February  3 placing  items  into  and  removing  items  from  her  vehicle,  and \n\nARNOLD – H305860 \n \n12 \nplaying with a dog.  She did not display any difficulty with picking up objects or turning \nher head. \n Discussion.   Per  Dr.  Vadera’s  report,  Dr.  Adametz  has  recommended  that \nClaimant  undergo  a  two-level  anterior  cervical  discectomy  and  fusion  at  C4-6,  along \nwith a partial corpectomy of C4, C5, and C6.  The Commission is authorized to accept \nor  reject  a  medical  opinion  and  is  authorized  to  determine  its  medical  soundness  and \nprobative  value.   Poulan  Weed  Eater  v.  Marshall,  79  Ark.  App.  129,  84  S.W.3d  878 \n(2002); Green  Bay  Packing  v.  Bartlett,  67  Ark.  App.  332,  999  S.W.2d  692  (1999).  \nHowever, none of Dr. Adametz’s records are in evidence, so I am unable to credit his \nopinion.   Speculation  and  conjecture  cannot  serve  as  a  substitute  for  proof.   Dena \nConstruction  Co.  v.  Herndon,  264  Ark.  791,  796,  575  S.W.2d  155  (1979).    I  am  in  the \nsame situation with respect to Dr. Vadera, but for a different reason:  he neglects to cite \nin his report what medical records of Claimant, if any, that he reviewed. \n What  the  Commission  is  left  with  is  a  claimant  with  a  stipulated  compensable \ncervical spine injury who has been recommended to undergo a very extensive surgery, \nwith a peer reviewer asserting that the fusion is not indicated at the C4-5 level, and that \nthe corpectomies are not warranted, either. \n Claimant  has  argued  that  it  is  not  appropriate  for  Respondents  to  seek  an \nindependent  medical  evaluation under Ark.  Code  Ann. § 11-9-511 (Repl.  2012).  \nSubsection (a) reads: \nAn injured employee claiming to be entitled to compensation shall submit \nto such physical examination and treatment by another qualified physician, \ndesignated or approved by the Workers’ Compensation Commission, as \n\nARNOLD – H305860 \n \n13 \nthe   commission   may   require   from   time   to   time   if   reasonable   and \nnecessary. \n \n(Emphasis added)  In sum, Claimant must undergo an independent medical evaluation \nif the Commission finds that such is reasonable and necessary.  See generally Burkett \nv. Exxon Tiger Mart, Inc., 2009 Ark. App.. 93, 304 S.W.3d 2. \n Again, Dr. Adametz has recommended that Claimant undergo, inter alia, a multi-\nlevel cervical fusion.  She has documented extensive pre-existing degenerative findings \nin   her   cervical   spine.      A   peer   review   physician   has   taken   issue   with   this \nrecommendation.    While—again—I  have  not  been  asked  to  determine  whether  the \nproposed surgery by Adametz is reasonable and necessary, I could not do so anyway \nbased on the paucity of evidence that was offered at the hearing.  But what I am able to \ndo—and in fact am compelled to do based on the evidence outlined above—is find that \nthe evaluation by  Bruffett  is  reasonable  and  necessary.  In  so  doing,  I  note  that \nClaimant did not display any problems with her neck in the surveillance footage that is in \nevidence.    Certainly,  that  is  not  dispositive.    But  what  it  does  do  is  raise  a  legitimate \nquestion  about  her  cervical  condition  and  need  for  the  surgery  recommended  by  Dr. \nAdametz that Dr. Bruffett’s evaluation hopefully will put to rest. \n Accordingly,   I   approve   of   an independent   medical   evaluation   of   Claimant \nconducted  by  Dr.  Bruffett  pursuant  to § 11-9-511(a).   The  parties  will  work  together  to \nexpedite this evaluation, which shall be at the expense of Respondents.  Respondents \nwill provide Claimant reimbursement for the mileage for her travel to and from Bruffett’s \noffice in accordance with AWCC Advisory 89-2. \n\nARNOLD – H305860 \n \n14 \n \nCONCLUSION \n Judgment  is  hereby  entered  in  accordance  with  the Findings  of Fact  and \nConclusions of Law set forth above. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":22951,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305860 BRENDA J. ARNOLD, EMPLOYEE CLAIMANT OSCEOLA SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCH. BDS. ASSN., THIRD-PARTY ADM’R RESPONDENT OPINION FILED JULY 19, 2024 Hearing before Administrative Law Judge O. Milton Fine II on June 21, 2024, in Jone...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["cervical","neck","hip","knee","back","thoracic","lumbar"],"fetchedAt":"2026-05-19T22:51:37.117Z"},{"id":"alj-H304848-2024-07-19","awccNumber":"H304848","decisionDate":"2024-07-19","decisionYear":2024,"opinionType":"alj","claimantName":"Michael Loosier","employerName":"City Of Ashdown","title":"LOOSIER VS. CITY OF ASHDOWN AWCC# H304848 July 19, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LOOSIER_MICHAEL_H304848_20240719.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOOSIER_MICHAEL_H304848_20240719.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H304848 \n \nMICHAEL LOOSIER, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nCITY OF ASHDOWN,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nMUNICIPAL LEAGUE WORKERS’ COMPENSATION \nPROGRAM, THIRD PARTY ADMINISTRATOR/TPA                                       RESPONDENT                                                                        \n \nOPINION FILED JULY 19, 2024   \n \nHearing before  Administrative Law Judge Chandra  L.  Black, in Texarkana, Miller County, \nArkansas. \n \nThe Claimant, pro se, failed to appear at the hearing.        \n \nRespondents represented by the Honorable Mary K. Edwards, Attorney at Law, North Little Rock, \nArkansas. \n \n              STATEMENT OF THE CASE      \n \n A  hearing  was  held  on July 9,  2024,  in the  present  matter  pursuant  to Dillard  v.  Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (d), and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \n The record consists of the transcript of the July 9, 2024, hearing and the documents held \ntherein. Additionally,  in  order  to  adequately  address  this  matter  under  Ark.  Code  Ann.  §  11-9-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing  . . . in a manner which best \nascertains the rights of the parties”), and without objection, I have blue-backed correspondence \nfrom the Commission’s file on the claim, consisting of one page.  In accordance with Sapp v. Tyson \n\nLOOISER-H304848 \n \n2 \n \nFoods, Inc., 2010 Ark. App. 517, ___ S.W.3d ___, this document has been served on the parties \nin  conjunction  with this opinion.   Specifically,  the  documentation  consists  of  an  email that the \nCommission sent to the  United States Postal Service regarding tracking information on the notices \nsent  to  the  Claimant  via  certified  mail, comprising of one page,  which has  been  marked  as \nCommission’s Exhibit 1\n1\n; and the Respondents’ Non-Medical Exhibit Index has  been  marked \naccordingly,  and  it includes ten (10) pages of pleadings, the  Form  AR-C, and various other \ncorrespondence.   \n No testimony was taken. \n                                                            Procedural History \n On October  12, 2023, the Claimant’s attorney filed  a  Form  AR-C  with  the  Commission \nalleging that the Claimant sustained a compensable injury to his back during the course and in the \nscope of his employment with the respondent-employer on July 19, 2023.  Specifically, per this \ndocument, the  Claimant requested benefits  in  the  form  of additional temporary  total  disability, \nadditional temporary partial disability, additional permanent partial, additional medical expenses, \nrehabilitation, and an attorney’s fee.  \n  The respondent-insurance-carrier filed a Form AR-2, with the Commission on August 9, \n2023, wherein they accepted compensability of the claim for an injury to the Claimant’s lumbar \nspine.   \nOn  October  20,  2023,  the  claims  examiner  wrote  to  the  Commission saying,  in  relevant \npart: “... This claim was accepted.  The First Report of Injury and Form AR-2 were previously \nfiled with your office.  Our position has not changed.  Please advise if additional information is \nrequired.”  \n \n1\n This email has been blue-backed and made a part of the record of the transcript for the July 9, hearing. \n\nLOOISER-H304848 \n \n3 \n \nThe  Claimant’s  attorney  filed  with  the  Commission  a  motion  to  withdraw  from \nrepresenting  the  Claimant  in  this  matter  on  October  18,  2023.    There  being  no  objection  to  the \nmotion for the Claimant’s attorney to withdraw as counsel of record, the Full Commission entered \nan Order on November 2, 2023, granting the motion.      \nSince the filing of the Form AR-C, there has been no affirmative action taken on the part \nof the Claimant to prosecute his claim for workers’ compensation benefit, or otherwise pursue any \ntype of benefits.  In fact, the Claimant has not ever filed a request for a hearing in this matter.  \nTherefore,  on or  about April  22,  2024, the  Respondents filed a Respondents’ Motion  to \nDismiss for Failure to Prosecute, with the Commission, along with a Certificate of Service to the \nClaimant.  Per this documentation, the Respondents confirmed that they served upon the Claimant \na true and correct copy of the above and foregoing pleading, which was sent to the Claimant by \nway  of certified mail,  return  receipt  requested on  that  same  day, via the United  States  Postal \nService.  The Respondents received tracking documentation of the delivery information from the \nPostal Service that shows the Claimant received a copy of the Motion to Dismiss.         \n  The  Commission  sent  a letter to  the Claimant on April  22,  2024, informing him of the \nRespondents’ motion, and a deadline of twenty (20) days, for filing a written response.  This notice \nwas sent via first-class and certified mail by way of the Postal Service.   \nInformation received by the Commission from the Postal Service on July 8, 2024, shows \nno proof of delivery for the recipient of this parcel of mail.  However, the letter notice sent to the \nClaimant by first-class mail has not been returned to the Commission.  \nYet, there was no response from the Claimant.   \n  Pursuant to a Hearing Notice dated May 15, 2024, the Commission notified the parties that \nthis matter had been set for a hearing on the Respondents’ motion to dismiss. Said hearing was \n\nLOOISER-H304848 \n \n4 \n \nscheduled for July 9, 2024, at 10:00 a.m., at the Miller County Juvenile Court Center, in Texarkana, \nArkansas.  This notice of the dismissal proceedings was sent to the Claimant via first-class and \ncertified mail via the Postal Service.   \nInformation received by the Commission from the Postal Service on July 8, 2024, shows \nthat there was no proof of delivery for the recipient of the notice of hearing.  However, the notice \nof hearing sent to the Claimant by first-class mail has not been returned to the Commission.  Based \non the foregoing, I find that the evidence before me preponderates that the Claimant received notice \nof the dismissal hearing.   \nStill, there was no response from the Claimant.     \nNevertheless,  a dismissal hearing  was  in  fact  conducted  on the  Respondents’ motion as \nscheduled.    The Claimant did  not appear at the hearing.    However, the  Respondents appeared \nthrough  their  attorney.  The  Respondents’  attorney asserted  that  the Claimant  has  failed  to \nprosecute his claim for workers’ compensation benefits and that it should be dismissed for want \nof prosecution.  Counsel further noted that the Claimant has not asked for a hearing since the filing \nof the Form AR-C, which was done more than six (6) months ago.  Therefore, the Respondents’ \nattorney essentially moved that this claim be dismissed without prejudice based on the timing of \nthe events described above and the procedural history of the claim involving a lack of prosecution \nper Ark. Code Ann. §11-9-702, and/or Commission Rule 099.13. \n                                          Adjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in this \nmotion for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \n\nLOOISER-H304848 \n \n5 \n \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed  with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \nReview of the evidence shows that the Claimant has had ample time to pursue his claim \nfor workers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not \never requested a hearing or otherwise tried to prosecute his claim for benefits since the filing of \nthe Form AR-C, which was done more than six (6) months ago.  Most notably, the Claimant has \nnot responded to the Notices of this Commission, nor has he contested the dismissal request, and \nhe did not appear at the hearing to object to his claim being dismissed.           \nTherefore, after consideration of the evidence before me, I find the Respondents’ Motion \nto  Dismiss to  be  well  taken.  Accordingly, pursuant  to  Ark. Code  Ann. §11-9-702 (d), and \nCommission  Rule  099.13,  this  claim for workers’ compensation benefits is  hereby dismissed \nwithout  prejudice to  the  refiling of  it within  the limitation  period specified by the  applicable \nlimitation period. \n \n \n\nLOOISER-H304848 \n \n6 \n \n       FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704. \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion to dismiss this claim, \nfor want of prosecution for which a hearing was held. \n \n3. The Claimant has not requested a hearing since the filing of the Form AR-\nC,  which  was done more  than  six  (6)  months  ago.    Hence,  the evidence \npreponderates  that  the  Claimant  has  failed  to  prosecute  his  claim  for \nworkers’ compensation benefits based upon the relevant provisions of the \nspecified  statute,  Ark.  Code  Ann. §11-9-702 (d),  and  Rule  099.13  of  this \nCommission.       \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion for dismissal of this claim for want of prosecution \nis hereby granted, without prejudice, under Ark. Code Ann. §11-9-702 (d), \nand  Commission  Rule  099.13,  to  the  refiling  of  it  within  the  limitation \nperiod specified by law.  \n \n                                         ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for additional benefits.  This dismissal is hereby ordered pursuant to Ark. \nCode Ann. §11-9-702 (d), and Commission Rule 099.13, without prejudice to the refiling of this \nclaim within the limitation period specified under the Act. \n          IT IS SO ORDERED. \n    \n                    \n____________________________________ \nChandra L. Black \n       Administrative Law Judge","textLength":11970,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H304848 MICHAEL LOOSIER, EMPLOYEE CLAIMANT CITY OF ASHDOWN, EMPLOYER RESPONDENT MUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM, THIRD PARTY ADMINISTRATOR/TPA RESPONDENT OPINION FILED JULY 19, 2024 Hearing before Administrative Law Judge Chandra L. Black, i...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T22:51:39.275Z"},{"id":"alj-H109474-2024-07-19","awccNumber":"H109474","decisionDate":"2024-07-19","decisionYear":2024,"opinionType":"alj","claimantName":"John Meadors","employerName":null,"title":"MEADORS VS. PINNACLE RECORDS MG’T, LLCAWCC# H109474July 19, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MEADORS_JOHN_H109474_20240719.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MEADORS_JOHN_H109474_20240719.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H109474 \n \nJOHN MEADORS,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nPINNACLE RECORDS MG’T, LLC, \nEMPLOYER                                                                                                         RESPONDENT \n \nACCIDENT FUND GEN. INS. CO./ \nACCIDENT FUND INS. CO. OF AMERICA \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED JULY 19, 2024 \n \n \nHearing conducted on Tuesday, July 16, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant’s attorney, the Honorable Daniel E. Wren, of Little Rock, Pulaski County, \nArkansas, appeared at the hearing in connection with his motion to be relieved as the claimant’s \nattorney.  \n \nThe claimant, Mr. John Meadors, of Bradford, White County, Arkansas, failed and/or refused to \nattend the hearing. \n \nThe respondents were represented by the Honorable Erin Rambo, Ledbetter, Cogbill, Arnold & \nHarrison, LLP, Ft. Smith, Sebastian County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Tuesday, July 16, 2024, pursuant to the respondents’ motion to \ndismiss without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 Lexis Replacement) \nand Commission Rule 099.13 (2024 Lexis Repl.). \n        The respondents filed a motion to dismiss without prejudice for lack of prosecution with the \nCommission. The claimant’s attorney at the time, Daniel Wren of the Wren Law Firm (Mr. Wren) \nfiled a response objecting to the respondents’ motion; then soon thereafter also filed a motion to \n\nJohn Meadors, AWCC No. H109474 \n2 \n \nwithdraw as the claimant’s counsel. Both the claimant’s attorney’s and the respondents’ motion \nwere heard and resolved at the subject hearing. The claimant’s attorney and the claimant already \nhad mutually de  facto “split ways” well before the hearing date, which is what prompted the \nclaimant’s attorney to file with the Commission his motion to withdraw as the claimant’s attorney. \n(See Hearing Transcript and attached Exhibits).  \n          Pursuant to the applicable law the Commission mailed a copy of the respondents’ motion to \ndismiss, as well as notice of the subject hearing to the claimant at his last known address of record \non file with the Commission. The claimant was in fact mailed all of the aforementioned documents \nat his last known address of record; however; the claimant failed and/or refused to appear at the \nsubject  hearing. The claimant’s attorney’s motion to be relieved as counsel was granted via \nseparate order. \n          The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4), as well as our court of appeals’ ruling in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record demonstrates the claimant has failed and/or \nrefused to prosecute his claim. \n        Therefore,  after a thorough consideration of  the facts, issues, the applicable law,  and other \nrelevant matters of record, I hereby make the following: \n\nJohn Meadors, AWCC No. H109474 \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. The claimant failed and/or refused to appear at the subject hearing. Therefore, he hereby \nis deemed to have waived his right to a hearing on the respondents’ motion to dismiss.  \n \n3. The respondents’ aforementioned motion to dismiss without prejudice filed April 3, 2024, \nshould be and hereby is GRANTED; and this claim is dismissed without prejudice to its \nrefiling pursuant to the deadlines prescribed by Ark. Code Ann. Section 11-9-702(a) and \n(b), and Commission Rule 099.13. \n \n        This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling this claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5334,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109474 JOHN MEADORS, EMPLOYEE CLAIMANT PINNACLE RECORDS MG’T, LLC, EMPLOYER RESPONDENT ACCIDENT FUND GEN. INS. CO./ ACCIDENT FUND INS. CO. OF AMERICA CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED JULY 19, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:51:41.343Z"},{"id":"alj-H204677-2024-07-19","awccNumber":"H204677","decisionDate":"2024-07-19","decisionYear":2024,"opinionType":"alj","claimantName":"Natasha Onick","employerName":null,"title":"ONICK VS. JACKSONVILLE SCHOOL DISTRICTAWCC# H204677July 19, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ONICK_NATASHA_H204677_20240719.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ONICK_NATASHA_H204677_20240719.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H204677 \n \nNATASHA ONICK, EMPLOYEE        CLAIMANT \n \nJACKSONVILLE SCHOOL DISTRICT,  \nSELF-INSURED EMPLOYER                   RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOC.,  \nTHIRD PARTY ADMINISTRATOR           RESPONDENT \n  \n \n \nOPINION FILED 19 JULY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 24 April 2024 in Little Rock, Arkansas. \n \nMr. Gary Davis, the Davis Law Firm, appeared on behalf of the claimant. \n \nMs. Melissa Wood, Worley, Wood & Parrish, appeared on behalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n A Motion to Dismiss was filed in this matter by the respondents on 19 March 2024, \nand a hearing on that motion was held in Little Rock, Arkansas, on 24 April 2024. In their \nmotion, the respondents argued that this claim should be dismissed for the claimant’s \nalleged failure to prosecute her claim under AWCC Rule 099.13 (Rule 13). The claimant \nwas represented by Mr. Gary Davis, and the respondents were represented by Ms. Melissa \nWood. The record consists of the hearing’s transcript, along with the respondents’ Exhibit \nNo 1 (an index page and ten subsequent pages of forms, pleadings, and correspondence) and \nthe parties’ post-hearing briefs, which I have blue-backed to this Opinion.  \nPROCEDURAL HISOTRY \n This claim arose from a workplace injury sustained on 24 September 2021. The \nclaim was accepted by the respondents, according to a Form AR-2 dated 8 July 2022, as a \n\nN. ONICK- H204677 \n2 \n \nmedical-only claim. [Resp. Ex. No 1.] The parties do not dispute the dates of other relevant \nfilings in this matter that were discussed at the hearing as relevant to the motion, but not \nmade part of the record. It is not disputed that a Full Hearing before Chief Administrative \nLaw Judge (CALJ) O. Milton Fine II was held on 24 May 2023. The issues addressed in that \nhearing included whether the claimant was entitled to temporary total disability, \nadditional medical benefits, and attorney’s fees; all other issues were reserved. The CALJ \nissued his Opinion on 22 August 2023, finding that the claimant was entitled to additional \nmedical benefits, but that she had not met her burden on her other claims.  \n The claimant appealed the findings unfavorable to her to the AWCC Full \nCommission on 11 September 2023, and the Full Commission issued its Opinion on \naffirming and adopting the ALJ’s Opinion on 8 February 2024. Then, on 19 March 2024, the \nrespondents filed the immediate motion. The claimant objected to the dismissal via email \ncorrespondence the following day. The respondents replied, noting (1) that their motion was \nbrought under Rule 13 (and not under ACA § 11-9-702), (2) that Rule 13 did not require \nthem to wait until six months after the filing of the Commission’s Opinion before seeking a \ndismissal, and (3) that they were requesting a hearing on their motion. [Resp. Ex. No 1.] A \nhearing was then coordinated, and notice was sent to all parties, accordingly. \nARGUMENT AT THE HEARING \nAt the hearing on their motion, the respondents noted that this claim had already \nproceeded through a hearing before an ALJ and that the CALJ’s Opinion was affirmed and \nadopted by the Full Commission. They argued that as the age of this claim is nearing four \nyears from the date of injury— “anything left to litigate, that should be done by now.” [TR \nat 6.] The claimant objected to a dismissal of this claim. She argued that the respondents’ \nmotion was “filed with all due haste” and noted that while some benefits were addressed in \nthe earlier litigation, other potential issues remained.  \n\nN. ONICK- H204677 \n3 \n \nMr. Davis:  Ms. Wood queries why is it that these other issues have not been \nlitigated. Well, we litigated an issue of some temporary disability, and we \nlitigated an issue of some medical treatment. We have not litigated all other \nissues that are reserved by virtue of the claim filing. That would be wage \nloss, disability, vocational rehabilitation, change of physician, et cetera. \n \nJudge Howe:  And I’ll note for the record, if I can interrupt there, that Judge \nFine’s August 22\nnd\n Opinion does say on page 2 that all other issues have been \nreserved. \n \nMr. Davis:  Correct. We just haven’t had an opportunity, Your Honor. This \nlast Opinion just became final and you can’t litigate while you’re waiting on \nan appeal to be finished out.... \n \n[TR at 7.] \nThe claimant went on to state that she was requesting a hearing on her entitlement \nto a change of physician, an issue that was not part of the earlier litigation. [TR at 14, 15.] \nThe respondents acknowledged that the claimant “did prosecute some of the claims made \non the Form C, but certainly has not prosecuted most of them.” [TR at 16.] \nThe parties went back-and-forth on the policy implications and the benefits or the \ndetriments associated with piecemeal litigation processes, with the respondents \nsummarizing, in part, their overarching position in saying, “[we] understand that the \nCommission can reserve issues, but here we are, a dismissal request has been made. If \nthere’s something to litigate, then, request a hearing, we’ll start the prehearing process.” \n[TR at 23.]  \nBoth parties then indicated that they intended to file post-hearing briefs. Those \nbriefs, which were due within fourteen (14) days of the hearing date and timely received by \nthe Commission, are blue-backed to this Opinion. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Having reviewed the record as a whole, and having heard the arguments of counsel \non the merits of the immediate motion, I make the following findings of fact and conclusions  \n \n\nN. ONICK- H204677 \n4 \n \nof law, consistent with ACA § 11-9-704: \n1. The Arkansas Workers’ Compensation Commission has proper jurisdiction \nover this claim. \n \n2. Consistent with Rule 13, the parties received notice of the hearing on the \nMotion to Dismiss. \n \n3. Forty (40) days passed between the Full Commission’s Opinion and the filing \nof the respondents’ motion. \n \n4. The claimant reserved her right to litigate additional issues not addressed at \nthe May 2023 hearing, and she now seeks a hearing, in furtherance of her \nrights under her claim, on a change of physician.   \n \n5. The respondents failed to prove by a preponderance of the evidence that this \nclaim should be dismissed for want of prosecution under Rule 13. \n \n 6. The respondents’ motion is, therefore, denied. \nADJUDICATION \n AWCC Rule 13, in pertinent part, states: \nUpon meritorious application to the Commission from either party in an \naction pending before the Commission, requesting that the claim be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice to all parties, enter an order dismissing the claim for want of \nprosecution. \n \nIn Johnson v. Triple T Foods, 55 Ark. App. 83, 929 S.W.2d 730, 1996 Ark. App. LEXIS 628, \nour Court of Appeals stated, \nThe Commission has the authority, under ACA § 11-9-205(a)(1)(A) (Repl. \n1996), to make such rules and regulations as may be found necessary. Under \nthis authority, the Commission has promulgated its Rule 13, which provides \nthat if a party requests that a claim be dismissed for want of prosecution, the \nCommission may dismiss the claim. \n \nIt is under this Rule and authority that the respondents seek a dismissal of Ms. \nOnick’s claim. I do not find, however, that the preponderance of the evidence supports a \nfinding that Ms. Onick has failed to prosecute her claim. \nThis case is clearly distinguishable from Johnson, supra, where the Court approved \nof the Commission exercising its discretion to dismiss a claim under Rule 13. In that case, \n\nN. ONICK- H204677 \n5 \n \n“there had been no showing of any unresolved issues,” and the claimant acknowledged that \n“he was receiving, or had received, all benefits that he was entitled to receive.” Id. Its \nhistory also involved a refiling of a claim that laid dormant between October of 1993 and \nJuly of 1994. \nThe claim before me frames up quite differently. A hearing was held in May of 2023, \nand an ALJ’s Opinion was issued in August of 2023. The claimant took an appeal of that \ndecision to the Full Commission in September of 2023. The Full Commission entered its \nOpinion on 8 February 2024, and the respondents’ motion followed just 40 days later. The \nclaimant noted several potential issues of entitlement that are not yet resolved and \nrequested a hearing on a change of physician at the hearing on the immediate motion. I \ncannot find, against that backdrop, that the claimant has failed to prosecute her claim. \nThat she did not seek a hearing or perform some other overt “prosecutorial action” inside \nthose 40 days between the Full Commission’s entry of its Opinion and the filing of the \nrespondents’ motion should not prove fatal to the continuance of her claim. \nORDER \n For the reasons noted above, the respondents’ motion to dismiss this claim is \nDENIED. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":9107,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H204677 NATASHA ONICK, EMPLOYEE CLAIMANT JACKSONVILLE SCHOOL DISTRICT, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED 19 JULY 2024 Heard before Arkansas Workers’ Compensation Commission ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1","denied:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:51:43.421Z"},{"id":"alj-H301055-2024-07-19","awccNumber":"H301055","decisionDate":"2024-07-19","decisionYear":2024,"opinionType":"alj","claimantName":"Brodrick Tolliver","employerName":null,"title":"TOLLIVER VS. LENNOX INDUSTRIES, INC.AWCC# H301055July 19, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TOLLIVER_BRODRICK_H301055_20240719.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TOLLIVER_BRODRICK_H301055_20240719.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H301055 \n \nBRODERICK TOLLIVER, EMPLOYEE      CLAIMANT \n \nLENNOX INDUSTRIES, INC., EMPLOYER           RESPONDENT \n \nINDEMNITY INS. CO. OF N. AMERICA (P.A.)/ \nCORVEL HEALTHCARE CORP., CARRIER/TPA              RESPONDENT \n  \n \n \nOPINION FILED 19 JULY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 18 July 2024 in Helena-West Helena, Arkansas. \n \nThe pro se claimant did not appear. \n \nNewkirk & Jones, Mr. Eric Newkirk, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Helena-\nWest Helena, Arkansas, on 18 July 2024. This case relates to an alleged workplace injury, \nsustained on or about 26 January 2023. A Form AR-C was filed on the claimant’s behalf on \n16 February 2023, and a Form AR-2 was filed by the respondents on 7 March 2023 \naccepting a claim for back and chest injuries. \n On 6 May 2024, the respondents requested a dismissal of this matter for failure to \nprosecute the claim. See Exhibit No 1. Letters providing notice of that motion and notice of \nthe hearing were sent to the claimant, consistent with the Commission’s practice. I noted at \nthe hearing that mailings from the Commission to claimants are sent via both First Class \nand Certified Mail with return receipts requested. Returned mail is regularly appended to \nthe Commission’s file. The Commission’s file does not include any responsive \ncorrespondence from the claimant, nor does it include any returned mailings. \n\nTOLLIVER- H301055 \n2 \n \nThe respondents appeared on 18 July 2024, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of their \nmotion. And the claimant did not appear at the hearing to resist the dismissal of this claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2670,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H301055 BRODERICK TOLLIVER, EMPLOYEE CLAIMANT LENNOX INDUSTRIES, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF N. AMERICA (P.A.)/ CORVEL HEALTHCARE CORP., CARRIER/TPA RESPONDENT OPINION FILED 19 JULY 2024 Heard before Arkansas Workers’ Compensation Com...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:51:45.548Z"},{"id":"full_commission-G804863-2024-07-18","awccNumber":"G804863","decisionDate":"2024-07-18","decisionYear":2024,"opinionType":"full_commission","claimantName":"Crystal Gainey","employerName":"Genoa Central School District","title":"GAINEY VS. GENOA CENTRAL SCHOOL DISTRICT AWCC# G804863 JULY 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Gainey_Crystal_G804863_20240718.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Gainey_Crystal_G804863_20240718.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. G804863 \n \nCRYSTAL GAINEY, EMPLOYEE              CLAIMANT \n \nGENOA CENTRAL SCHOOL DISTRICT, EMPLOYER RESPONDENT NO. 1 \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, WCT, \nINSURANCE CARRIER/TPA RESPONDENT NO. 1     \n \nDEATH & PERMANENT TOTAL  \nDISABILITY TRUST FUND RESPONDENT NO. 2 \n \nOPINION FILED JULY 18, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little \nRock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law Judge \nfiled March 1, 2024. In said order, the Administrative Law Judge made the \nfollowing findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has authority over \nthis claim. \n \n2. I hereby accept the above-mentioned proposed stipulations as fact.  \n\n \nGAINEY - G804863  2\n  \n \n \n3. The Claimant has failed to prove by a preponderance of the evidence \nthat she was rendered permanently and totally disabled by her \ncompensable back injury of July 16, 2018.  \n \n4. The preponderance of credible evidence does not prove that the \nClaimant sustained any wage loss disability over and beyond her 25% \nanatomical impairment, which Respondents No. 1 accepted and paid \nfor her compensable back injury.  \n \n5. The issue of a controverted attorney’s fee has been rendered moot and \nnot discussed herein this opinion.  \n \n We have carefully conducted a de novo review of the entire record herein \nand it is our opinion that the Administrative Law Judge's March 1, 2024 decision is \nsupported by a preponderance of the credible evidence, correctly applies the law, \nand should be affirmed.  Specifically, we find from a preponderance of the \nevidence that the findings of fact made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the Full \nCommission on appeal.  \n  \n \n \n\n \nGAINEY - G804863  3\n  \n \n \nIT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents \n \nDISSENTING OPINION \n \nThis case involves a claim for permanent and total or wage-loss disability \nbenefits.  The ALJ determined that the Claimant was not entitled to any disability \nbenefits beyond her anatomical impairment rating which was accepted and paid.  \nAfter a de novo review of the record, I would award the Claimant wage-loss \nbenefits of 25% in addition to her permanent impairment rating.  \nClaimant sustained a compensable lower back injury on July 16, 2018, when \nshe slipped and fell on a wet floor.  Claimant returned to work shortly after her injury, \nbut continued to receive treatment from her authorized physician, Dr. Overley.  This \ntreatment included conservative care in the form of physical therapy and steroid \ninjections which failed to produce any lasting results.  Consequently, Claimant \nunderwent  a  fusion  at  the  L4-L5  level  of  her  lower  back  in  October  of  2019.  \nFollowing the surgery, Claimant received work restrictions from Dr. Overley, which \n\n \nGAINEY - G804863  4\n  \n \n \nchanged multiple times to accommodate her symptoms as she attempted to return \nto her employment duties.  In February 2020, Claimant resigned from her position \nwith the Respondent to care for her husband.  At that time, Claimant continued to \nexperience difficulties performing job duties that may have exceeded the temporary \nwork restrictions given to her by Dr. Overley.  An FCE was conducted on April 19, \n2020 with reliable results and Claimant was placed in the light-duty category of work \nrestrictions.  On September 15, 2021, Claimant was determined to be at maximum \nmedical improvement and given an impairment rating of 25% to her whole person.  \nAn award of wage-loss benefits is appropriate where a compensable injury \nhas affected the Claimant’s ability to earn a livelihood. Whitlatch v. Southland Land \n& Dev., 84 Ark. App. 399, 141 S.W. 3d 916 (2004).  The Commission is charged \nwith the duty of determining the extent of disability. Cross  v.  Crawford  County \nMemorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996).  In considering claims \nfor permanent partial disability benefits in excess of the employee’s percentage of \npermanent physical impairment, the Workers’ Compensation Commission may take \ninto account, such factors as the employee’s age, education, work experience, and \nother matters reasonably expected to affect his or her future earning capacity.  Ark. \nCode Ann. § 11-9-522(b)(1).  Such other matters include; motivation, post-injury \nincome, credibility, demeanor, and a multitude of other factors.  Glass v. Edens, 233 \nArk. 786, 346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, \n\n \nGAINEY - G804863  5\n  \n \n \n663 S.W.2d 946 (1984); Curry  v.  Franklin Electric, 32 Ark. App. 168, 798 S.W.2d \n130 (1990); Cross v. Crawford County Memorial Hosp., supra.  It is well established \nthat a claimant’s prior work history and education are also factors to be considered \nin determining eligibility for wage-loss benefits.  See Cross  v.  Crawford  County \nMemorial  Hosp.,  supra.; Glass  v.  Edens, supra.; City  of  Fayetteville  v.  Guess, \nsupra.; Curry v. Franklin Electric, supra.  \nClaimant is 62-years of age and has a 10\nth\n grade education, she has not \nobtained a GED or any post-secondary education.  The Claimant worked in a labor-\nintensive  position  with  the  Respondent  as  a  custodial  and  cafeteria  worker.  \nClaimant  worked  in  other  labor-intensive  positions,  prior  to  working with  the \nRespondent,  as  a  house  cleaner,  daycare  attendant  and  nurse’s  aide.    The \nClaimant’s husband, Mr. Boyce Gainey, testified that Claimant was unable to do \nchores around the house or gardening which she did prior to her work injury.  The \nClaimant also has a permanent impairment rating of 25% to the whole person as a \nresult  of  her  compensable  lower  back  injury  and  was  given  light-duty  work \nrestrictions  which  limit  occasional  lifting  of  weight  above  twenty  (20)  pounds.  \nFurther, the Claimant was also restricted from bending or squatting more than \noccasionally.  In light of these factors, I find that Claimant’s wage-earning ability has \nbeen negatively affected and would give her an additional 25% wage-loss factor.  \n\n \nGAINEY - G804863  6\n  \n \n \nPursuant to Ark. Code Ann. § 11-9-522, a Respondent employer may avoid \nliability for any wage-loss benefits by allowing the injured employee to return to \nwork, or by making a bona fide offer of employment.  The offer of employment \nmust be timely, definite and within the employee’s work restrictions and must \nproduce earnings similar to those earned prior to the employee’s work accident.  \nSee Hope Sch. Dist. V. Wilson, 2011 Ark. App. 219, 382 S.W.3d 782 (2011), See \nalso Johnson County Reg’l Med. Ctr. v. Lindsey, 2014 Ark. App. 586, 446 S.W.3d \n647 (2014) and Weyerhaeuser Co. v. McGinnis, 37 Ark. App. 91, 824 S.W.2d 406 \n(1992). \nIn Hope  School  District  v.  Wilson.  In Hope, the Claimant worked as a \ncustodian when he suffered an admittedly compensable injury to his left shoulder.  \nThe Claimant returned to work and was given a revised schedule of work duties to \naccommodate  his  injury.    Claimant  subsequently  resigned.  After  Claimant’s \nvoluntary resignation he was given an impairment rating based on his compensable \ninjury to his left shoulder.  The Arkansas Court of Appeals held that there was not a \nbona  fide  offer  of  employment  for  any  period  after  Claimant  last  worked  for \nRespondent in accordance with Ark. Code Ann. § 11-9-522(c)(1).  See Hope Sch. \nDist. V. Wilson, 2011 Ark. App. 219, 382 S.W.3d 782 (2011).  \nIn  the  matter  at  hand,  the  Claimant  returned  to  work  prior  to  reaching \nmaximum medical improvement or receiving permanent work restrictions but was \n\n \nGAINEY - G804863  7\n  \n \n \nunable to continue her employment and resigned in February of 2020. Pursuant to \nthe Hope case, the resignation does not preclude a wage-loss award.  On April 19, \n2020,  the  Claimant  was  given  permanent  light-duty  work  restrictions.    On \nSeptember 15, 2021, the Claimant was determined to be at maximum medical \nimprovement  and  given  a  permanent  impairment  rating.  At  no  time  after  the \nassignment of permanent work restrictions, or after the Claimant was determined \nto be at maximum medical improvement did the Respondent attempt to re-employ \nthe Claimant.  As a result, I find that Respondent did not return the Claimant to work \nor make a bona fide offer of employment, and as stated above I would award wage-\nloss disability benefits of 25% in addition to the given anatomical impairment rating. \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":9450,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G804863 CRYSTAL GAINEY, EMPLOYEE CLAIMANT GENOA CENTRAL SCHOOL DISTRICT, EMPLOYER RESPONDENT NO. 1 ARKANSAS SCHOOL BOARDS ASSOCIATION, WCT, INSURANCE CARRIER/TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND R...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","shoulder"],"fetchedAt":"2026-05-19T22:29:45.206Z"},{"id":"full_commission-H204207-2024-07-18","awccNumber":"H204207","decisionDate":"2024-07-18","decisionYear":2024,"opinionType":"full_commission","claimantName":"Bj Wallace","employerName":"Garland County Habitat For Humanity","title":"WALLACE VS. GARLAND COUNTY HABITAT FOR HUMANITY AWCC# H204207 JULY 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Wallace_BJ_H204207_20240718.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Wallace_BJ_H204207_20240718.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H204207 \n \nB. J. WALLACE, \nEMPLOYEE \n \nCLAIMANT \nGARLAND COUNTY HABITAT FOR HUMANITY,  \nEMPLOYER \n \nRESPONDENT \nBANKERS STANDARD INSURANCE CO./ \nESIS, INC., CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JULY 18, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE ERIC NEWKIRK, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \n \nThe claimant appeals an administrative law judge’s opinion filed \nFebruary 1, 2024.  The administrative law judge found that the claimant \nfailed to prove he sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant did not \nestablish a compensable injury by medical evidence supported by objective \nfindings.     \nI.  HISTORY \n B. J. Wallace, now age 69, testified that he became employed with \nthe respondents, Garland County Habitat for Humanity, in about October \n\nWALLACE - H204207  2\n  \n \n \n2021.  The parties stipulated that the employment relationship existed at all \npertinent times.  The claimant testified on direct examination: \n  Q.  Tell me what happened on March 8\nth\n, 2022? \nA.  Okay.  We got a call for a rep – for a washing machine, \nand so we went out front, they was three of us.  They was a \ngreen van that was pulled up sideways, and the center doors \nopened up.  And so we got the washing machine in but the \nguy had a – a lip there about a – oh, probably two inches high \nso you couldn’t push it in.  So one of the guys went around \nand was gettin’ into the van to try to lift the washing machine \nup.  Well, the other guy that was helping me on the left side, \nhe dropped his end and so that left me with a washing \nmachine trying to fall out....I’m trying to grab it and hold it and \nit’s tryin’ to fall out at the same time, and that’s – that’s where I \ngot hurt.... \nQ.  Tell me where you hurt.   \nA.  I hurt – it was my shoulders and around in the back part \naround my scapula area, especially the right scapula, and \nthen the – If you’re trying to ask for the pain now or right then, \nit wouldn’t just an onset right then because after – it was \nafterwards when I went to feelin’ a lot of the pain.  But it goes \nacross my back over to my left one, but not as bad.... \nQ.  You reported the injury? \nA.  Yes. \nQ.  Okay.  And your employer eventually sent you to the \ndoctor.  Is that correct? \nA.  Yes. \n \n According to the record, the claimant treated at CHI St. Vincent Hot \nSprings on March 16, 2022.  It was reported at that time, “The problem \nbegan on 3/8/2022.  1\nst\n visit; 3/16/22:  helping load a washing machine – \nwound up with all the weight when loading.  Developed pain mostly in the \nshoulder blade area, burning, stinging and interferes with sleep laying on R \n\nWALLACE - H204207  3\n  \n \n \nshoulder, tried salonpas, no prior shoulder issues.”  Physical examination \non March 16, 2022 revealed the following: \n exam R shoulder, No swelling, bruising or wound present. \n TTP medial to scapula and across sup. trap \n Limited ROM \n Mild crepitus with PROM \n Xray AC jt arthritis \n L shoulder, No swelling, bruising or wound present \n TTP medial to scapula \n Limited ROM \n Mild crepitus with PROM. \n xray with AC jt arthritis \n Cervical Spine; \n No swelling, bruising or wound present. \n No Palpable spasm noted \n TTP  \n Limited ROM \n xray:  ant. spur of c3.   \n \n The diagnosis was “1.  Sprain of other specified parts of left shoulder \ngirdle, initial encounter[.]  2.  Sprain of other specified parts of right shoulder \ngirdle, initial encounter[.]”  Dr. Mark Larey noted, “The cause of this problem \nis related to work activities.”  Dr. Larey recommended conservative \ntreatment. \n An x-ray of the claimant’s cervical spine was taken on March 16, \n2022 with the impression, “Normal alignment.  Disk spaces maintained.  \nMild anterior spurring C3 and C5.”  An x-ray of the claimant’s right shoulder \nwas taken on March 16, 2022 with the findings, “There are no acute \nfractures or dislocations.  What is seen of the scapula appears \nunremarkable.  AC joint arthrosis.”  An x-ray of the claimant’s left shoulder \n\nWALLACE - H204207  4\n  \n \n \nwas taken on March 16, 2022 with the findings, “There are no acute \nfractures or dislocations.  What is seen of the scapula appears \nunremarkable.  AC joint arthrosis.”   \n Dr. Larey continued to provide follow-up treatment.   \n An MRI of the claimant’s right shoulder was taken on June 14, 2022: \nHISTORY:  67-year-old male with right shoulder pain after an \ninjury at work.... \nFINDINGS:  Moderate hypertrophic changes are present \nalong the acromioclavicular joint.  There is a type II acromion.  \nThe muscles and tendons comprising the rotator cuff are \npreserved without tear or tendinopathy.  The labrum is \npreserved.  There is mild chondromalacia along the \nglenohumeral joint.  There is no bone marrow edema or \nsubchondral cyst formation.  There is no joint effusion.  The \ndeltoid muscle is normal in appearance.   \nIMPRESSION:  1.  No evidence of rotator cuff or labral \npathology. \n2.  Mild chondromalacia along the glenohumeral joint. \n \n An x-ray of the claimant’s left shoulder was also taken on June 14, \n2022: \nHISTORY:  67-year-old male with left shoulder pain after \ninjury at work.... \nFINDINGS:  Moderate hypertrophic changes are present \nalong the acromioclavicular joint.  There is a type II acromion.  \nThe muscles and tendons comprising the rotator cuff are \npreserved.  The labrum is grossly normal in appearance.  \nThere appears to be mild chondromalacia along the \nglenohumeral joint.  No subchondral cysts are seen along the \nglenohumeral joint.  There is no bone marrow edema.  There \nis small subchondral cyst in the greater tuberosity of the \nhumerus.  The deltoid muscle is normal in appearance. \nIMPRESSION:  1.  Hypertrophic changes along the \nacromioclavicular joint. \n2.  No evidence of rotator cuff or labral pathology. \n\nWALLACE - H204207  5\n  \n \n \n3.  Mild chondromalacia along the glenohumeral joint.   \n \n The claimant followed up with Dr. Larey on June 16, 2022: \nThe problem began on 3/8/2022....here for MRI review.  Still \npain occurring in R scapular region and often at night when he \nis sleeping gets numb/tingling feeling going down R arm into \nfinger.  Hasn’t been having to lift as he has been on light duty.  \n[Scheduled] to start PT next week.... \nDiscussed he will wind up on permanent restrictions as I don’t \nsee him being able to resume full lifting.  Will request \nEMG/NCS of R upper extremity.  Go ahead with PT.  Recheck \npost EMG or PT whichever is completed first.... \n \n The claimant received physical therapy visits at Hot Springs Sports \nMedicine beginning June 22, 2022.  The last physical therapy treatment of \nrecord took place on or about July 22, 2022.  According to a statement at \nhearing by the claimant’s attorney, the respondent-carrier paid for all of the \nmedical treatment provided the claimant through approximately July 22, \n2022.      \n The claimant testified on direct examination: \nQ.  Now, I know that in July of 2023, about a year after this \naccident at work that we’re here on today, you had a – you \nhad a head injury.  Is that correct? \nA.  Yes.  I don’t know if you’d call it a injury.  I raised the – the \nhood was up on the car.  I raised up, and when I raised my \nhead it come – where it latches, that come loose.  Well kinda \ndropped my head a little bit and it – it didn’t – it wasn’t like the \nwhole thing come down on my head.... \nQ.  Did you sustain any injury to your cervical spine in that \naccident or was that your head? \nA.  It was just my head.... \nQ.  That did not happen at work. \nA.  No.   \n \n\nWALLACE - H204207  6\n  \n \n \n A CT of the claimant’s head was taken on or about July 4, 2023 with \nthe impression, “No acute intracranial abnormality.”  It was noted at that \ntime, “68-year-old male on Xarelto who presents after head injury with some \nintermittent headaches and neck pain.  Differential diagnoses include skull \nfracture, intracranial bleed, or cervical spine fracture.”   \n A CT of the claimant’s cervical spine was taken on July 4, 2023 with \nthe following findings: \nAlignment of the craniocervical junction is preserved.  \nVertebral bodies of the cervical spine demonstrate normal \nheights and alignment.  Disc spaces are maintained.  \nPrevertebral and paravertebral soft tissues are within normal \nlimits. \nIMPRESSION:  No traumatic fracture or malalignment of the \ncervical spine.   \n \n A pre-hearing order was filed on July 26, 2023.  According to the text \nof the pre-hearing order, the claimant contended, “The claimant contends \nthat on March 18, 2022, the claimant was loading a washing machine into a \nvehicle with a co-worker, and the co-worker was unable to hold onto his end \ncausing the claimant to sustain an injury to his neck, both his right and left \nshoulders, and his lower back.  The respondents initially accepted the claim \nas compensable and paid some medical benefits.  He contends that on \nMarch 16, 2022, the claimant received treatment from Dr. Mark Larey, who \nordered twelve (12) sessions of physical therapy (PT) and placed the \nclaimant on light duty work restrictions.  On March 14, 2022, Dr. Larey \n\nWALLACE - H204207  7\n  \n \n \nhalted the PT and ordered MRIs of the claimant’s left and right shoulders.  \nThe claimant contends that June 14, 2022, MRIs revealed evidence of \nrotator cuff and labral pathology, as well as chondromalacia along the \nglenohumeral joint of both the claimant’s left and right shoulders.  The \nclaimant contends that, thereafter, on June 16, 2022, Dr. Larey opined the \nclaimant should continue PT, and he ordered an EMG/NCS study, noting \nthe claimant would eventually need to be placed on permanent restrictions.  \nThe claimant contends at this point the respondents denied the claim and \nstopped paying for all medical treatment.  Therefore, for all the reasons set \nforth above the claimant contends he sustained compensable injuries as set \nforth above within the course and scope of his employment, and that he is \nentitled to additional medical, and TTD benefits, and his attorney is entitled \nto attorney’s fees.  The claimant specifically reserves any and all other \nissues for future litigation and/or determination.”   \n The parties stipulated that the respondents “have paid some medical \nbenefits, but they controvert any and all additional medical and/or indemnity \nbenefits other than those they have paid to date.”  The respondents \ncontended, “The respondents contend the claimant was involved in an \nadmitted work incident/event on March 8, 2022, while he was assisting \nanother employee to load a washing machine into a vehicle.  The \nrespondents contend they initially accepted the claim as compensable, and \n\nWALLACE - H204207  8\n  \n \n \npaid some medical benefits; however, relevant medical records and \ndiagnostic studies conducted after the date of the alleged injuries failed to \nreveal any acute or other ‘trauma related’ objective medical findings of any \ninjuries as the Act requires.  Instead, the only medical findings were \ndegenerative in nature, and not causally connected or related to the \nadmitted work incident/event.  Consequently, the respondents contend all \nthe subject conditions were clearly preexisting and not work-related or \n‘compensable’ within the Act’s meaning.  Accordingly, the respondents \ncontend the alleged injuries to the claimant’s neck, both his right and his left \nshoulders, and lower back/spine are not compensable since there are no \nobjective medical findings which are causally connected or related to the \nsubject March 8, 2022, work incident/event.  Alternatively, in the event the \nCommission deems this claim to be compensable, the respondents contend \nthe claimant sustained nothing more than a temporary aggravation(s) of \nclearly and demonstrably preexisting conditions for which they have paid all \nappropriate medical benefits, and the claimant is entitled to no additional \nmedical or other benefits pursuant to the Act.  Furthermore, the \nrespondents contend that if the respondents have and continue to employ \nthe claimant on a full-time basis, this claim is a ‘medical only’ claim.  \nTherefore, if the Commission deems the claimant is entitled to any \nadditional medical benefits, the respondents contend he is not entitled to \n\nWALLACE - H204207  9\n  \n \n \nTTD benefits since he continued to work on a full-time basis without any \nlost time or wages.  Finally, and alternatively, the respondents contend that \nif the Commission awards additional medical or indemnity benefits to the \nclaimant, pursuant to Ark. Code Ann. Section 11-9-411 (Lexis \nReplacement 2023) they are entitled to a dollar-for-dollar credit/offset for \nany such benefits paid to the claimant by any and all third-party payor(s), \nincluding but not limited to, health insurance, short- and/or long-term \ndisability (STD or LTD) benefits, as well as unemployment benefits.  The \nrespondents specifically reserve any and all other issues for future litigation \nand/or determination.”   \n The parties agreed to litigate the following issues: \n1.  Whether the claimant sustained “compensable injuries” \nwithin the meaning of the Arkansas’ Workers’ Compensation \nAct (the Act) to his neck, both his right and left shoulders, and \nhis lower back on March 8, 2023.   \n2.  If the claimant’s alleged injuries are deemed compensable, \nthe extent to which he is entitled to additional medical and \nTTD benefits. \n3.  Whether the claimant’s attorney is entitled to a \ncontroverted fee on these facts.   \n4.  The parties specifically reserve any and all other issues for \nfuture litigation and/or determination.   \n \n A hearing was held on November 3, 2023.  The claimant testified \nthat he was suffering from increased pain in his shoulders and back.  The \nclaimant testified that he wanted to undergo electrodiagnostic testing \nrecommended by Dr. Larey.  The respondents at hearing proffered a set of \n\nWALLACE - H204207  10\n  \n \n \nmedical exhibits, “Proffered Respondent Exhibit 1.”  The administrative law \njudge did not allow admission of this exhibit into evidence.  The \nadministrative law judge filed an opinion on February 1, 2024 and found \nthat the claimant failed to prove he sustained a compensable injury.  The \nadministrative law judge therefore denied and dismissed the claim.  The \nclaimant appeals to the Full Commission.   \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Supp. \n2023), provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.]   \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Supp. \n2023).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Supp. \n2023).  The requirement that a compensable injury be established by \nmedical evidence supported by objective findings applies only to the \nexistence and extent of the injury.  Stephens Truck Lines v. Millican, 58 Ark. \nApp. 275, 950 S.W.2d 472 (1997).   \n\nWALLACE - H204207  11\n  \n \n \n Administrative law judges and the Full Commission are charged with \nstrictly construing the provisions of Act 796 of 1993.  See Ark. Code Ann. \n§11-9-704(c)(3)(Supp. 2023).  Strict construction means narrow \nconstruction and requires that nothing be taken as intended that is not \nclearly expressed.  Hapney v. Rheem Manuf. Co., 341 Ark. 548, 26 S.W.3d \n771 (2000).  The doctrine of strict construction requires a fact-finder to use \nthe plain meaning of the language employed.  Holaday v. Fraker, 323 Ark. \n522, 920 S.W.2d 4 (1996).  Noticeably absent from the language of Ark. \nCode Ann. §11-9-102(4)(A)(i)(Supp. 2023) et seq. is any requirement that \nan employee prove by a preponderance of the evidence that he sustained \nan “acute” injury.     \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Supp. 2023).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n An administrative law judge found in the present matter that the \nclaimant failed to prove he sustained a “compensable injury.”  It is the duty \nof the Full Commission to enter findings in accordance with the \npreponderance of the evidence and not on whether there is substantial \nevidence to support an administrative law judge’s findings.  Roberts v. Leo \n\nWALLACE - H204207  12\n  \n \n \nLevi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983), citing Jones v. \nScheduled Skyways, Inc., 1 Ark. App. 44, 612 S.W.2d 333 (1981).  The Full \nCommission reviews an administrative law judge’s opinion de novo, and it is \nthe duty of the Full Commission to conduct its own fact-finding independent \nof that done by an administrative law judge.  Crawford v. Pace Indus., 55 \nArk. App. 60, 929 S.W.2d 727 (1996).  The Full Commission enters its own \nfindings in accordance with the preponderance of the evidence of record.  \nTyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).   \n The Full Commission finds in the present matter that the claimant did \nnot establish a compensable injury by medical evidence supported by \nobjective findings.  The claimant contended that he sustained an accidental \ninjury arising out of and in the course of employment on March 8, 2022.  \nThe claimant testified that he felt pain in his shoulders and back after lifting \na washing machine.  The claimant did not establish a compensable injury \nby medical evidence supported by objective findings.  The claimant treated \nat CHI St. Vincent Hot Springs beginning March 16, 2022.  Physical \nexamination of the claimant’s right shoulder and neck did not reveal any \nobjective medical findings.  “TTP (Tenderness to Palpation)” was noted, but \n“Tenderness” is not an objective medical finding establishing a \ncompensable injury.  Rodriguez v. M. McDaniel Co., Inc., 98 Ark. App. 138, \n252 S.W.2d 146 (2007).  Complaints of pain and tenderness are not \n\nWALLACE - H204207  13\n  \n \n \nobjective medical findings.  Ozark Natural Food v. Pierson, 2012 Ark. App. \n133, 389 S.W.3d 105, citing Ark. Code Ann. §11-9-102(16)(Supp. 2023).     \n There were no reports in the present matter of objective medical \nfindings such as bruising, swelling, or muscle spasms.  Nor is there any \nprobative evidence demonstrating that “Mild anterior spurring C3 and C5” \nwas causally related to the alleged March 8, 2022 accidental injury.  There \nis no medical evidence supported by objective findings to establish the \nexistence and extent of an injury allegedly occurring March 8, 2022.  See \nFord v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998).  \nThe MRI testing of the claimant’s right shoulder and left shoulder on June \n14, 2022 did not establish a compensable injury supported by objective \nfindings.  The evidence does not demonstrate that “mild chondromalacia” or \n“type II acromion” were objective medical findings establishing a \ncompensable injury.  We also note that an MRI taken July 4, 2023 showed \n“No traumatic fracture or malalignment of the cervical spine.”   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not establish a compensable injury by medical \nevidence supported by objective findings.  The claimant did not prove that \nhe sustained a compensable injury to his shoulders, neck, or back on \nMarch 8, 2022 or any other date.  The Full Commission notes that \n“Proffered Respondent Exhibit 1” has not been admitted into the evidence \n\nWALLACE - H204207  14\n  \n \n \nof record, and we have not considered this exhibit in our de novo review.  \nThe Full Commission affirms the administrative law judge’s finding that the \nclaimant did not prove he sustained a compensable injury, and this claim is \nrespectfully denied and dismissed. \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents \n \n \nDISSENTING OPINION \n \nThe ALJ found that the Claimant failed to prove, by a preponderance \nof credible evidence that he sustained a compensable injury.  After \nconducting a thorough de novo review, I would rule in favor of the Claimant \nfor his compensable shoulder injury and that he is entitled to reasonable \nand necessary medical treatment for such injury.  \nTo establish a compensable injury by a preponderance of the evidence \nthe Claimant must prove: (1) an injury arising out of and in the course of \nemployment; (2) that the injury caused internal or external harm to the body \nwhich required medical services or resulted in disability or death; (3) medical \n\nWALLACE - H204207  15\n  \n \n \nevidence supported by objective findings, as defined in Ark. Code Ann. §11-\n9-102(16), establishing the injury; and (4) that the injury was caused by a \nspecific and identifiable time and place of occurrence.  A compensable injury \nmust be established by medical evidence supported by objective findings and \nmedical opinions addressing compensability must be stated within a degree \nof medical certainty.  Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d \n560 (2002).  \nAn employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. § 11-9-508(a).  Reasonable \nand necessary medical services may include those necessary to accurately \ndiagnose the nature and extent of the compensable injury; to reduce or \nalleviate symptoms resulting from the compensable injury; or to maintain the \nlevel of healing achieved; or to prevent further deterioration of the damage \nproduced by the compensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. \nApp. 100, 911 S.W.2d 593 (1995).  \nOn March 8, 2021, Claimant was loading a washing machine into a \nvan with a co-worker when the co-worker accidentally dropped his end of \nthe washing machine and the Claimant attempted to hold all of the weight of \nthe washing machine to prevent it from falling off of the van.  The Claimant \nwas initially diagnosed with a sprain of his left and right shoulder by Dr. \n\nWALLACE - H204207  16\n  \n \n \nMark Larey.  Dr. Larey also noted the Claimant’s limited range of motion as \nwell as mild crepitus with passive range of motion.  Dr. Larey stated that the \nClaimant’s injuries were related to his work activities.  The Claimant \nunderwent an MRI on June 14, 2022, which revealed “chondromalacia \nalong the glenohumeral joint” of both his shoulders and “hypertrophy \nchanges along the acromioclavicular joint.”  Considering these objective \nfindings and the statement relating to causation it is my opinion that the \nClaimant sustained injuries to both his shoulders in his work accident.  \nAlthough the Claimant is approximately 69-years-old and may have had \nsome degeneration in his shoulders, when a work accident causes the \ncondition to become symptomatic the result is a compensable injury.  \nParker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d 449 \n(2004). \nTherefore, I would rule that the Claimant has proved by a \npreponderance of the evidence that he sustained a compensable injury of \nhis right and left shoulder.  Further, Claimant is entitled to such medical \ntreatment as may be reasonably necessary for his compensable injury \nincluding an EMG/NCS as recommended by Dr. Larey.  \n      \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":24333,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204207 B. J. WALLACE, EMPLOYEE CLAIMANT GARLAND COUNTY HABITAT FOR HUMANITY, EMPLOYER RESPONDENT BANKERS STANDARD INSURANCE CO./ ESIS, INC., CARRIER/TPA RESPONDENT OPINION FILED JULY 18, 2024","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back","shoulder","cervical","sprain","rotator cuff","neck","fracture"],"fetchedAt":"2026-05-19T22:29:45.223Z"},{"id":"alj-H302922-2024-07-18","awccNumber":"H302922","decisionDate":"2024-07-18","decisionYear":2024,"opinionType":"alj","claimantName":"Robert Boyd","employerName":"Madison County Waste Management","title":"BOYD VS. MADISON COUNTY WASTE MANAGEMENT AWCC# H302922 July 18, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BOYD_ROBERT_H302922-20240718.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOYD_ROBERT_H302922-20240718.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H302922 \n \nROBERT BOYD, Employee      CLAIMANT \n \nMADISON COUNTY WASTE MANAGEMENT, Employer  RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, Carrier/TPA    RESPONDENT \n \n \n OPINION FILED JULY 18, 2024  \n \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in Springdale, \nWashington County, Arkansas. \n       \nClaimant represented by LAURI THOMAS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondent represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n The claimant in this matter is a 34-year-old male who sustained a compensable injury to \nhis lower back on February 23, 2023. At the time of the hearing in this matter the claimant had \nreturned  to  work.  The  claimant  first  sought  medical  treatment  on  February  24,  2023,  with  Dr. \nShawn  Brown  at  MANA  Medical  Providers  for  his  compensable  back  injury.  The  claimant \nsometime after that hired his current counsel and filed a form AR-C on May 4, 2023. Sometime \nafter  those  events, the  respondent  accepted  and  began  to  pay  for  the  claimant’s  medical \ntreatment.  That  treatment  was  primarily  through  Ozark  Orthopedics  and  included  physical \ntherapy and an epidural injection in the claimant’s low back on June 27, 2023, by Dr. Mark \nMiedema.  The  claimant  eventually  underwent  surgical  intervention  at  the  hands  of  Dr.  Gannon \nRandolph on July 26, 2023, in the form of a left L5-S1 microdiscectomy. The claimant testified \nthat he last saw Dr. Randolph on December 28, 2023. Following is a portion of that testimony: \n\nBoyd – H302922 \n \n-2- \nQ Robert, when was the last time you saw Dr. Randolph? \n \nA It was the 28\nth\n of December of last year. \n \nQ And after that visit, did Dr. Randolph want you to schedule \na future appointment? \n \nA He  did  but  at  the  time  he  was  changing  practices  and \nmoving  from  Ozark  Orthopedics  to  UAMS  and  was  uncertain  of \nhis schedule. \n \nQ So it’s your understanding that he would like to see you a \nyear after your surgery, which would be this July? \n \nA Yes, ma’am. \n \nQ Have you made an appointment with him yet? \n \nA I  have  not  and  it  was  kind  of  contingent  on  as  if  he  was \ngoing  to  still  be  qualified  or  accepted  by  worker’s  comp  to \ncontinue treatment. \n \nQ And  by  going  to  see  Dr.  Randolph  for  your  follow-up,  do \nyou believe that you – it’s medically reasonable and necessary for \nyou to have a follow-up appointment? \n \nA Absolutely. \n \nQ With your surgeon? \n \nA Yes. \n \n The  claimant  also  underwent  an  impairment  evaluation  at  Functional  Testing  Centers, \nInc., on February 5, 2024. That report is signed by Darin Bell, occupational therapist, and Casey \nGarretson,  occupational  therapist.  The  report  states  that  the  claimant  has  a  whole  person \nimpairment of 10% regarding the claimant’s compensable low back injury.  \nThe respondents filed a motion to dismiss the claimant’s case for failure to prosecute \nunder ACA  §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Commission \n\nBoyd – H302922 \n \n-3- \non February 20, 2024. That motion was filed 209 days after the claimant’s surgical intervention \nand 15 days after his impairment evaluation.  \n ACA §11-9-702 (4) states: \nIf within six (6) months after the filing of a claim for compensation \nno bona fide request  for  a  hearing  has  been  made  with  respect  to \nthe  claim,  the  claim  may,  upon  motion  and  after  hearing,  be \ndismissed  without  prejudice  to  the  refiling  of  the  claim  within \nlimitation   periods   specified   in   subdivisions   (a)(1)-(3)   of   this \nsection. \n \n ACA §11-9-702 (d) states: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing, if necessary, be dismissed without prejudice to the refiling \nof the claim within the limitation period specified in subsection (b) \nof this section. \n \n Rule 099.13 states: \nThe   Commission   may,   in   its   discretion,   postpone   or   recess \nhearings  at  the  instance  of  either  party  or  on  its  own  motion.  No \ncase  set  for  hearing  shall  be  postponed  except  by  approval  of  the \nCommission or Administrative Law Judge. \n \nIn  the  event  neither  party  appears  at  the  initial  hearing,  the  case \nmay  be  dismissed  by  the  Commission  or  Administrative  Law \nJudge, and such dismissal order will become final unless an appeal \nis  timely  taken  therefrom  for  a  proper  motion  to  reopen  is  filed \nwith  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon meritorious application to the Commission from either party \nin  an  action  pending  before  the  Commission,  requesting  that  the \nclaim be dismissed for want of prosecution, the Commission may, \nupon reasonable notice to all parties, enter an order dismissing the \nclaim for want of prosecution. (Effective March 1, 1982) \n \n The  claimant,  as  quoted  above,  is  to  see  Dr.  Randolph  again  and  has  been  unable  to \nschedule that appointment, at least in part, because Dr. Randolph has changed medical practices. \n\nBoyd – H302922 \n \n-4- \nThe claimant also testified while being questioned by respondent’s attorney about medical bills \nhe has been paying out-of-pocket as follows: \nQ At this date, today, is there anything that you’re claiming is \nnot paid that should have been paid by my client? \n \nA The only thing that hasn’t been paid was MRI and X-ray. \n \nQ Is that something that still remains unpaid or do you know? \n \nA We’ve been – my wife and I have been currently paying it \njust out-of-pocket. \n \nQ Okay. Is that  something  that  you  could  get  documentation \non to your attorney? \n \nA I could. \n \nQ Was it something – tell us when these diagnostic tests were \ndone. \n \nA They were done before I’d actually sought an attorney at \nthe time. I went to my – I did what my boss told me to do, go to the \ndoctor directly after. The very next day I did. He went through the \nmotions.  Basically,  we  thought  it  was  something  that  maybe  was \njust gonna take care of itself. It wasn’t taking care of itself. I went \nthrough the X-ray, went through the MRI, and once I realized that I \nwas  going  to  have  to  have  surgery,  it  was  going  to  be  not  a \ntemporary deal, I sought an attorney. \n \nThis  administrative  law  judge  inquired  about  the  unpaid  medical  bills  at  the  hearing  in \nthis matter and had an exchange with the claimant and the respondent’s attorney about unpaid \nbills and the claimant’s upcoming visit with Dr. Randolph as follows: \nTHE COURT: This MRI – I think X-rays is what you said, \nwhat doctor ordered those? Was it the doctor that... \n \nTHE WITNESS:  It was  my primary  care physician.  It  was \nthe doctor that I was – my family doctor. \n \nTHE COURT: Okay. \n \n\nBoyd – H302922 \n \n-5- \nMS.  WOODS:  Judge,  I  would  just  like  to  state  for  the \nrecord that if we could get the documentation, I’ll certainly get it to \nmy  client  for  consideration,  but  whether  or  not  that  is  something \nthat’s approved or is denied has nothing to do with whether or not \nthe case is actually being prosecuted. \n \nTHE COURT: Well, I mean so the respondents stand ruling \n– obviously, he is asking to go back and see a doctor one year after \nhis surgical intervention. I’m pretty sure that was his testimony. He \nthought he should have follow-up. \n \nAre you telling us your client is willing to pay for that? \n \nMS.  WOODS:  I  can’t  state  for  certain,  but  that  is \nsomething  that  I  would  definitely  advise  my  client.  Even  if  the \ndismissal  is  entered,  that  has  nothing  to  do  with  approval  of \nreasonable and necessary medical care. If can’t give you an answer \nas  to  whether  she  would,  but  we  did  have  a  discussion  this  week \nabout  Dr.  Randolph  moving  locations,  and  she  said  she  would  be \nfine  with  him  going  to  the  new  location  at  UAMS  to  see  Dr. \nRandolph. \n \n Both  ACA §11-9-702  (4)  and  ACA §11-9-702  (d),  as  well  as Commission  Rule  099.13 \nprovide discretion in deciding whether a case be  dismissed, and in  all instances the language is \n“may” and not shall. This is not a case with a long and tortured history. In fact, the claimant’s \ncompensable  injury  that  resulted  in  back  surgery,  was just  short  of a  year  old  when  the \nrespondent  filed  a  motion  to  dismiss.  Questions  remain  about  unpaid  medical  bills  and  an \nunscheduled visit to the claimant’s surgeon. It appears to this administrative law judge that this \nparticular claimant has not ignored or wasted the time of the Commission or the respondent, but \ninstead,  has  actively  pursued  indemnity  and  medical  benefits  to  return  himself  as  much  as \npossible  to  his  pre-injury financial and physical state and continues to do so. The respondent’s \nmotion to dismiss is denied. \n  \n \n\nBoyd – H302922 \n \n-6- \nORDER \n Pursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny the \nmotion to dismiss filed by the respondents. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":9637,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H302922 ROBERT BOYD, Employee CLAIMANT MADISON COUNTY WASTE MANAGEMENT, Employer RESPONDENT AAC RISK MANAGEMENT SERVICES, Carrier/TPA RESPONDENT OPINION FILED JULY 18, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington Coun...","outcome":"dismissed","outcomeKeywords":["dismissed:4","denied:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:51:30.902Z"},{"id":"alj-H308108-2024-07-18","awccNumber":"H308108","decisionDate":"2024-07-18","decisionYear":2024,"opinionType":"alj","claimantName":"Ronnie Forrest","employerName":null,"title":"FORREST VS. WELSPUN PIPES, INC.AWCC# H308108July 18, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Forrest_Ronnie_H308108_20240718.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Forrest_Ronnie_H308108_20240718.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H308108 \n \nRONNIE FORREST, \nEMPLOYEE                                                                                                              CLAIMANT \n \nWELSPUN PIPES, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nCHUBB INDEMNITY INS. CO., \nCARRIER/TPA                                                                                                    RESPONDENT  \n \nOPINION FILED JULY 18, 2024 \n \nHearing conducted on Thursday, July 18,  2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant was represented by the Honorable Laura Beth York, Little Rock, Arkansas.  \n \nThe Respondents were represented by the Honorable Rick Behring, Jr., Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on July 18, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. Claimant’s counsel waived her appearance and the appearance of the Claimant to be present \nat the Motion to Dismiss hearing. Admitted into evidence was Respondent Exhibit 1, pleadings, \ncorrespondence, consisting of eleven (11) pages.  \nThe  record  reflects on December  15,  2023,  a  Form  AR-C was  filed purporting  that \nClaimant sustained injuries to left leg, right leg, and other whole body. On December 18, 2023, a \nForm AR-1 was filed alleging that a pipe rolled back onto Claimant pinching him between the pipe \nand  another  pipe  he  was  grinding. Respondents  filed  Form  AR-2  accepting  the  claim  as \ncompensable. Respondents’ counsel, Rick Behring, Jr., entered his appearance on December 22, \n2023. Respondents’ counsel filed a Motion to Dismiss on June 24, 2024. The motion alleges that \n\nFORREST, AWCC No. H308108 \n \n2 \n \nsince the filing of the Form AR-C on December 15, 2023, the Claimant has not filed a request for \na hearing. Claimant was sent notice of the Motion to Dismiss certified and regular First-Class Mail \non June 26, 2024. The Claimant did not claim the certified notice. Moreover, the notice sent out \nregular  First-Class  Mail  was also returned  to  the  Commission. Despite this effort, Claimant’s \ncounsel of record, Laura Beth York, responded to the Motion by letter dated June 28, 2024. See \nRespondents’ Exhibit 1, page 10. The letter stated that Claimant does not object to Respondents’ \nMotion to Dismiss if it is done without prejudice. Claimant’s counsel also waived her appearance \nand the appearance of her client to appear at the hearing. This waiver was granted.  \nDespite granting the waiver and in accordance with applicable Arkansas law, the Claimant \nwas mailed due  and proper legal notice of the hearing date via the United States Postal Service \n(USPS), First Class Certified Mail, Return Receipt Requested, and regular First-Class Mail. The \ncertified notice was not claimed by Claimant. Likewise, the regular First-Class mail hearing notice \nwas returned to the Commission. The hearing took place on July 18, 2024. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had reasonable notice  of  the July 18,  2024, \nhearing. \n \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \n\nFORREST, AWCC No. H308108 \n \n3 \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on the Respondents’ Motion to Dismiss. Claimant responded to the Motion to \nDismiss by letter dated June 28, 2024. There the Claimant did not object to a dismissal without \nprejudice and waived his appearance for the hearing itself. Thus, I find by the preponderance of \nthe evidence that reasonable notice was given to all parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution. The  Claimant  filed his Form AR-C on \nDecember  15,  2023. Since the filing of Claimant’s Form  AR-C,  no  request  for  a hearing  has \noccurred. Based on Claimant’s letter dated June 28, 2024, and the lack of activity on the claim, \nRespondents’ motion should be granted. Therefore, I do find by the preponderance of the evidence \nthat Claimant has failed to prosecute his claim by failing to request a hearing. Thus, Respondents’ \nMotion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, without prejudice. \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":5571,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H308108 RONNIE FORREST, EMPLOYEE CLAIMANT WELSPUN PIPES, INC., EMPLOYER RESPONDENT CHUBB INDEMNITY INS. CO., CARRIER/TPA RESPONDENT OPINION FILED JULY 18, 2024 Hearing conducted on Thursday, July 18, 2024, before the Arkansas Workers’ Compensation Commission ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:5"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:51:32.968Z"},{"id":"alj-H104701-2024-07-18","awccNumber":"H104701","decisionDate":"2024-07-18","decisionYear":2024,"opinionType":"alj","claimantName":"Jack Harrison","employerName":"Nwa Food Bank","title":"HARRISON VS. NWA FOOD BANK AWCC# H104701 July 18, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HARRISON_JACK_H104701_20240718.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRISON_JACK_H104701_20240718.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H104701 \n \nJACK HARRISON, Employee CLAIMANT \n \nNWA FOOD BANK, Employer RESPONDENT \n \nSUMMIT CONSULTING, LLC, Carrier RESPONDENT \n \n OPINION FILED JULY 18, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On April  23,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on February  26,  2024,  and  a  Pre-hearing \nOrder  was  filed  on February  27,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The  relationship  of  employee-employer-carrier  existed  between  the  parties on  May \n20, 2021. \n 3. The  claimant  sustained  a  compensable  injury  to  his  right  eye  on  or  about  May  20, \n2021. \n 4. The respondents have accepted and paid a 4% PPD rating for the claimant’s right eye \ninjury. \n\nHarrison – H104701 \n \n-2- \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  is  entitled  to  additional  permanent  partial  disability  benefits  up  to \nand including total vision loss in right eye. \n 2. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“The claimant contends he is entitled to compensation for the total \nloss of vision in his right eye. Claimant reserves all other issues.” \n \n The respondents’ contentions are as follows: \n“Respondents   contend   that   they   have   accepted   the   claim   as \ncompensable  and  have  timely  paid  applicable  benefits.  No  part  of \nthis claim has been controverted.” \n \n The claimant in this matter is a 52-year-old male who sustained a compensable injury to \nhis  right  eye  on  or  about  May  20,  2021.  At  the  time  of  his  compensable  right  eye  injury,  the \nclaimant’s job duties for the respondent included driving large trucks and distributing food from \nthose trucks. The claimant’s right eye injury occurred when he was loading food into a truck for \na  customer.  That  truck  had  a  camper  shell  on  its  bed.  When  the  claimant  shut  the  lid  on  the \ncamper  shell  debris, including  bird  feces, went  into  the  claimant’s  eye.  The  claimant’s  eye \nswelled  shut  and  he  went  to  see  David  Hurd,  OD,  at  Vold  Vision  the  next  day. The  claimant \ntreated  with  OD  Hurd  until  May  28,  2021, when  he  was  seen  at  Boozman-Hof  Regional  Eye \nClinic in Rogers, Arkansas, by Michael Waggoner, DO. The claimant primarily treated with DO \nWaggoner  until  August  7,  2022,  when  DO  Waggoner  found  the  claimant  to  be  at maximum \nmedical improvement. As a result of the claimant’s compensable right eye injury, he  sustained \ndecreased vision in his right eye, an ulcer of the right eye that resolved, and two stromal scars in \nhis right eye.  \n\nHarrison – H104701 \n \n-3- \n The  central  issue  in  this  matter  is  the  claimant’s  entitlement  to  additional  permanent \npartial disability benefits up to and including total vision loss in the claimant’s right eye. The \nrespondents have accepted and paid a 4% permanent partial disability rating for the claimant’s \nright eye injury as stipulated by the parties. \n In  the  present  matter,  the  following  statute  should be  considered in  determining  the \namount of anatomical or permanent disability the claimant is entitled to in conjunction with the \nAmerican  Medical  Association  Guides  to  the  Evaluation  of  Permanent  Impairment  4\nth\n Edition, \nherein after referred as AMA Guides 4\nth\n.  \nACA §11-9-521 (a)(14) states:  \nEye enucleated, in which there was useful vision, one hundred five \n(105) weeks. \n \nACA §11-9-521 (c)(1)(2) states:  \nCompensation  for  the  permanent  loss  of  eighty  percent  (80%)  or \nmore of the vision of an eye shall be the same as for the loss of an \neye. \n \nIn all cases of permanent loss of vision, the use of corrective lenses \nmay be taken into consideration in evaluating the extent of loss of \nvision. \n \n On September 8, 2022, an impairment evaluation summary was offered by Rick Byrd of \nFunctional  Testing  Centers,  Inc.,  regarding  the  claimant’s  compensable  right  eye  injury. \nFollowing is a portion of that report: \n1. Mr.  Harrison  has  Loss  of  Central  Vision  of  the  right  eye  as \nfollows: \nVisual Acuity Testing Results using Corrected vision: \nSnellen Result – For Distance \n20/40 Right Eye – DVA with corrective contact lens. (Documented \nin 8/17/2022 note, Dr. Waggoner.) 20/20 Left Eye \nSnellen Result – For Near \nNo documentation of loss of near sight – Right eye \nNo documentation of loss of near sight – Left eye \n \n\nHarrison – H104701 \n \n-4- \nThis  result  is an  8%  loss  of  central  vision  using  Table  3:  Loss  of \nCentral  Vision  in  a  Single  Eye – Right.  Mr.  Harrison  records  are \nconsistent  with  the  Snellen  result  and  he  does  have  glasses  and \ncontacts indicating this level of distance vision loss. \n \n2. Table 5: Loss of Monocular Visual Field \nTesting  for  loss  of  monocular  field  is  a  subjective  test  that  is \ncompletely  within  the  control  of  the  subject  and  therefore  not \nutilized for purpose of establishing impairment in this case. \n \n3. Using Figure 3: Percentage Loss of Ocular Motility of one eye \nMr.  Harrison  was  documented  as  having  full  ocular  motility  (Dr. \nWaggoner  note  6-13-2022)  with  no  objective  results  for  binocular \ndiplopia  (double  vision).  This  result  is  a  0%  loss  for  loss  of \nmotility. \n \nSummary – Conclusion  using  8.4  of  the  Guides  in  Determining \nImpairment  of  the  Visual  System  and  of  the  Whole  Person  (p. \n217): \nRight Eye \nLoss of Central Vision (Near and far) = 8% \nLoss of Visual Field = 0% \nLoss of Ocular Motility = 0% \n \nOther:   The   Guides   do   allow   for   an   additional   10%   visual \nimpairment of the involved eye in the case of abnormalities, which \nin this case do exist. Mr. Harrison has objective findings of “ulcer \nresolved with residual 2 stromal scars,” documented on 8-17-2022 \nnote from Dr. Waggoner) associated with his work related injury to \nhis  right  eye.  This  10%  will  be  combined  with  the  8%  visual \nimpairment  for  loss  of  central  vision  using  the  combined  values \nchart (p. 322). \n \nUsing Combined values chart (p. 322) this is an impairment of the \nright eye of: 17% \n \nMr. Harrison does not have an impairment of the Left Eye with an \nimpairment of 0% of the left eye. \n \nThe Guides instruct to then determine a Visual System Impairment \nusing Table 7. \nThis  table  indicates  the  Visual  System  Impairment  of  Both  Eyes \n(17% Right, 0% Left) results in a 4% Visual System Impairment of \nBoth Eyes. \n \n\nHarrison – H104701 \n \n-5- \nThe  Guides  then  instruct  to  then  determine  the  Impairment  of  the \nWhole Person using Table 6 (p. 218). \nIn this case, Mr. Harrison has a 4% Whole Person Impairment for \nhis eye related injury. \nImpairment as a result of this work related injury. \n \n On  August  7,  2023,  DO  Waggoner  authored  a  letter  regarding  the  claimant’s \ncompensable right eye injury, addressing his ability to use a corrective lens as follows: \nTo whom it may concern. I am writing this letter on behalf of Jack \nHarrison. This letter is to make those aware that Jack is considered \nlegally  blind  with  this  his  right  eye.  He  has  tried  wearing  a \nspecialty contact lens and with this lens his vision is correctable to \nthe  20/40  range.  With  the  scleral  lens  Jack  does  struggle  with  his \ndepth  perception  and  he  has  a  hard  time  driving  due  to  this.  I  do \nwant to make you aware the scleral lens is a very difficult lens for \nsome  patients  to  wear  or  even  tolerate  given  their  size.  They  are \nalso very costly. The main reason for us fitting him with the scleral \nlens  was  to  see  is  his  vision  could  even  be  improved.  The  scleral \nlens  is  not  a  good  long-term  option  for  him  unfortunately.  At  his \nlast  exam  we  did  talk  about  the  future  possibility  doing  a  corneal \ntransplant. \n \n**At    this    time    patient    has    reached    maximum    medical \nimprovement.** \n \nExpected  follow  up  would  include  contact  lens  evaluations  about \nevery 6 months with re-fit every 1-2 years. Yearly exams to check \npressures  and  overall  scar/eye  health  while  on  steroid  drops  PRN. \nMay  have  occasional  flares  requiring  unplanned  follow  up  exams \nand eye drops (steroid and pressure drops). \n \n At  the  hearing  in  this  matter  the  claimant  gave  direct  examination  testimony  about  his \ncurrent right eye difficulties as follows: \nQ And what kind of symptoms do you have in your right eye \nnow? \n \nA I  have  poor  depth  perception  and  I  see  shadows.  I  see \ntracers. When something moves, it leaves a trace. Other than that, \nit’s useless. \n \n\nHarrison – H104701 \n \n-6- \nQ The  vision  that  you  actually  have  in  that  eye,  can  you \ndescribe what you can see with your eye? \n \nA It  looks  like  a  kaleidoscope.  When  you  look  through  a \nkaleidoscope, if I look at anything, it’s everywhere. \n \nQ Okay. So if you close your left eye and use only your right \neye, are you able to recognize people? \n \nA No. \n \nQ Are you able to drive just using your right eye? \n \nA No. No, I can’t even see the road. \n \nQ Well, what can you do with just your right eye? \n \nA Nothing. \n \nQ If you have both of your eyes open, what is your vision like \nthen? \n \nA It’s no dept perception. It’s – my  left  eye  is  fighting  with \nmy right eye trying to focus and I’ll be exhausted by the end of the \nday. \n \nQ And why does it exhaust you? \n \nA Just from the strain from my right eye trying to work. \n \nQ Do you have any pain anymore from your eye? \n \nA If it’s too bright, like these lights right now, my eye’s just \ntwitching from the fluorescent lights in the room. \n \n The  claimant  also  gave  direct  examination  testimony  about  the  use  of  the  corrective  or \nscleral lens as follows: \nQ And  once  the  infection  was  gone  from  your  eye,  Dr. \nWagner recommended a scleral lens, is that correct? \n \nA Correct. \n \nQ Can you tell us, what is a scleral lens? \n\nHarrison – H104701 \n \n-7- \n \nA It’s  a  lens  about  the  size  of  a  quarter,  and  it  has  to  be \nspecifically made for the contour and the scarring in my eye. You \nhave  to  have  a  suction  cup  to  place  it  on.  You  have  to  fill  it \ncompletely full of saline solution, and you have to lean completely \nlevel over with the floor so you don’t spill it, try to open your eye \nas wide as you can and stick that thing in your eye. If you touch an \neyelid or if it gets a bubble in it, you have to pull it out and start all \nover again. \n \nQ And  are  you  able  to  put  that  scleral  lens  in  your  eye \nyourself? \n \nA No. \n \nQ And why not? \n \nA My  eye’s  been  closed  up  for  over  a  year  because  of  the \ninjury,  and  anything  I  try  to  force  my eye open,  by  the  time  I  get \nabout six inches away from my face with my left eye that I can see, \nI can’t seem to put it in. \n \nQ So the closer the scleral lens gets to your eye you can’t see \nit; is that what you are saying? \n \nA Correct. \n \nQ And what do you mean your  eye’s been closed up for a \nyear? \n \nA From  any  light.  I  couldn’t  go  outside  for  over  a  year \nbecause of it – I couldn’t even hardly watch TV because the glare \nfrom the TV would just drive me insane. \n \nQ So you have had the scleral lens in your eye? \n \nA Yes. \n \nQ And how did you get it there? \n \nA The  technician  from  Boozman-Hof,  she  was  the  only  one \nthat  could  get  it  in  for  me,  and  it  would  actually  take  her  ten  to \ntwelve tries before she could actually get it in. \n \n\nHarrison – H104701 \n \n-8- \nQ And  why  was  that?  What  made  her  have  to  try  so  many \ntimes? \n \nA Because  it  was  so  difficult  to  get  my  eye  open  enough  to \nget that big lens in because it’s – a normal contact lens is about the \nsize of your big finger and this thing was over the size of a quarter. \n \nQ So  when  you  had  the  scleral  lens  in,  about  how  long  did \nyou keep it in? \n \nA A couple of hours. \n \nQ And why only a couple of hours? \n \nA It would start to hurt. \n \nQ When  you  had  it  in  for  those  couple  of  hours,  what  was \nyour vision like then? \n \nA I could tell who you are but if you had anything written on \nyour  shirt  or  if  there  was  any – any  messages  or  anything  on  the \nwalls or anything, I can’t see them. I can’t tell you what they say. \nThe clock, I couldn’t tell you what the clock said.  \n \nQ Did the scleral lens improve your depth perception? \n \nA No. \n \nQ What  about  the  peripheral  vision?  Did  that  help  on  the \nperipheral vision? \n \nA A little but the lens was so thick that was just – I know like \nif it’s about 45 degrees, I could tell you’re there. \n \nQ So  do  you  feel  like  you’re  going  to  be  able  to  use  the \nscleral lens? \n \nA No. \n \nQ And  I  guess  for  the  reasons  you  said  but  can  you  just \nsummarize why you feel like you can’t use that? \n \nA I don’t have an hour to try to get it in every day and then \ntry to take it out or whatever because you have to have that suction \n\nHarrison – H104701 \n \n-9- \ncup again to stick to it and then slide it out of your eye. And then \nwhat’s the purpose of that? \n \nQ Have you ever been successful at getting it in yourself? \n \nA No. \n \n The claimant’s impairment evaluation summary by Mr. Byrd determined the claimant to \nhave impairment of 8% to his right eye based upon 20/40 central vision in the claimant’s right \neye.  I agree that the AMA Guides 4\nth\n would provide 8% of impairment to the right eye using a \ncorrective lens. However, ACA 11-9-521(c)(2) states:  \nIn all cases of permanent loss of vision, the use of corrective lenses \nmay be taken into consideration in evaluating the extent of loss of \nvision. (Emphasis added) \n \nI find the claimant’s testimony to be credible regarding his inability to wear a scleral lens, \nin part due to its large size and the lens being extraordinarily difficult to put into one’s eye. That \ntestimony is clearly supported in DO Waggoner’s August 7, 2023, letter about the scleral lens.  \nI do not believe the claimant’s vision should be considered with a corrective lens that he \nis unable to wear. In a March 2, 2022, clinic encounter note by DO Waggoner it was found that \nthe claimant’s vision was 20/200. This appears to be the claimant’s last visit with DO Waggoner \nbefore  his  May  9,  2022, visit, when  he  was  first  fitted  with  the  scleral  lens.  I  find,  using  AMA \nGuides 4\nth\n, Chapter 8, The Visual System, Table 3: Loss of Central Vision in a Single Eye, the \nclaimant’s impairment to the right eye to be 40%.  \n I do agree with Mr. Byrd’s additional assessment of 10% impairment to the right eye due \nto impairment for orbital scar and deformity, which is found in the AMA Guides 4\nth\n, Chapter 8, \nThe  Visual  System,  page  222,  under  a  section  called  “Other  Conditions.”  Taking  both  the \n\nHarrison – H104701 \n \n-10- \nclaimant’s 40% and 10% impairment to the right eye and applying them to the AMA Guides 4\nth\n \ncombined values chart at pages 322-324, the claimant’s total impairment to the right eye is 46%.  \n In Mr. Byrd’s impairment report he uses AMA Guides 4\nth\n, Chapter 8, Table 6 to convert \nthe claimant’s right eye impairment to a whole person impairment. While the AMA Guides 4\nth\n \ndoes  allow  for  this,  the  Arkansas  Workers’  Compensation  Act  does  not.  In Multi-Craft \nContractors,  Inc.  v. Yousey, 2018,  Ark.  App. 107,  542,  S.W.3\nrd\n,  155  (2018) the  Arkansas \nSupreme Court stated: \nWe agree with the parties and hold that Yousey's left eye injury is \na scheduled injury. Our court of appeals has explained that the test \nof  whether  an  injury  falls  within the  scheduled-injury  category  is \nprimarily  a  question  of law. Fed.  Compress  &  Warehouse  Co.  v. \nRisper,  55  Ark. App.  300,  935  S.W.2d  279  (1996).  The  court \nfurther explained  that  partial  permanent  impairments  to  the  eyes \ncome within the scheduled-injury category as set forth in Arkansas \nCode Annotated section 11–9–521 and that claimants are limited to \nthe  scheduled  benefits. Id. A claimant  who  sustains  a  scheduled \ninjury  is  limited  to  the applicable  allowances  set  forth  in  section \n11–9–521. Id. \n \n As  such,  the  claimant  is  entitled  to  a  total  of  46%  impairment  to  the  right  eye  less  any \namount already paid by the respondent. I note that the claimant’s right eye impairment does not \nmeet the 80% threshold for total loss of an eye described in ACA 11-9-521 (c)(1). \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n \n \n \n\nHarrison – H104701 \n \n-11- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nFebruary  26,  2024,  and  contained  in  a  Pre-hearing  Order  filed February  27,  2024,  are  hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \npermanent disability benefits to his right eye in the amount of 46%. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney’s fee in this matter.  \n ORDER \nThe  respondent  shall  pay  the  claimant  an  amount  equal  to  46%  impairment  to  the  right \neye, less any monies already paid in impairment regarding the right eye. \nThe respondents shall pay to the claimant's attorney the maximum statutory attorney's fee \non the benefits awarded herein, with one half of said attorney's fee to be paid by the respondents \nin addition to such benefits and one half of said attorney's fee to be withheld by the respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":19362,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H104701 JACK HARRISON, Employee CLAIMANT NWA FOOD BANK, Employer RESPONDENT SUMMIT CONSULTING, LLC, Carrier RESPONDENT OPINION FILED JULY 18, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant rep...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["strain"],"fetchedAt":"2026-05-19T22:51:35.043Z"},{"id":"alj-G305023-2024-07-16","awccNumber":"G305023","decisionDate":"2024-07-16","decisionYear":2024,"opinionType":"alj","claimantName":"John Boggs","employerName":null,"title":"BOGGS VS. ARKANSAS DEPT. OF TRANSPORTATIONAWCC# G305023July 16, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BOGGS_JOHN_G305023_20240716.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOGGS_JOHN_G305023_20240716.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G305023 \n \nJOHN BOGGS, Employee                                                                              CLAIMANT \n \nARKANSAS DEPT. OF TRANSPORTATION, Employer                         RESPONDENT                                                                      \n \nPUBLIC EMPLOYEE CLAIMS, Carrier                                                     RESPONDENT                                              \n \n \n OPINION FILED JULY 16, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents   represented   by CHARLES   H.   MCLEMORE,   Attorney, Little   Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n  \n On June 17, 2024, the above captioned claim came on for hearing at Fort Smith, \nArkansas.  A pre-hearing conference was conducted on April 17, 2024, and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The claimant was earning an average weekly wage of $803.74 which would \nentitle him to compensation at the weekly rates of $536.00 for total disability benefits and \n$402.00 for permanent partial disability benefits. \n 3.   Claimant reached maximum medical improvement on March 4, 2024. \n\nBoggs – G305023 \n 2 \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Extent of claimant’s impairment rating. \n2. Claimant’s entitlement to benefits for wage loss resulting from his compensable  \nInjury. \n3.   Attorney’s fee. \nAt the time of the hearing claimant indicated that the extent of his impairment rating  \nis no longer an issue.  Instead, the parties have agreed to stipulate that claimant’s \npermanent impairment rating equals 13% to the body as a whole. \n The claimant contends that he is entitled to benefits for wage loss resulting from \nhis  compensable  injury.    Claimant  also  contends  that  he  is  entitled  to  a  controverted \nattorney fee on any unpaid indemnity benefits. \nThe respondents contend that this claim has been accepted as compensable and \nthat the claimant has been provided all benefits to which he is entitled.  After Dr. Frank \nTomecek recommended fusion surgery from L3 to S1, which respondent had authorized \nbut  the  claimant  did  not  want,  the  claimant  used  his  Change  of  Physician  to  see  Dr. \nBlankenship.    Dr.  Blankenship  performed  surgery  on  April  18, 2023,  which  respondent \nprovided the claimant.  Dr. Blankenship released the claimant at MMI and on March 4, \n2024, wrote that the claimant had a 13% permanent impairment rating.  Dr. Blankenship \nalso  wrote  that  the  claimant  could  return  to  gainful  employment  with  work  restrictions.  \nRespondent  has  accepted  the  claimant’s  13%  impairment  rating  and  is  paying \nappropriate permanent partial disability benefits to the claimant.  The claimant performed \nunreliably  at  an  FCE  on  March  27,  2024  in  the  sedentary  classification  with  24  of  46 \nconsistency measures.  The claimant is still an employee of the respondent employer.   \n\nBoggs – G305023 \n \n3 \n \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non April 17, 2024, and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    The parties’ stipulation that claimant’s permanent impairment rating equals \n13% to the body as a whole is also hereby accepted as fact. \n 3.    Claimant has met his burden of proving by a preponderance of the evidence \nthat he has suffered a loss in wage earning capacity in an amount equal to 35% to the \nbody as a whole. \n 4.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant is a 53-year-old man who began working for respondent approximately \nfifteen years ago.  He suffered an admittedly compensable injury to his lumbar spine while \nfixing a flat tire on a backhoe on December 19, 2021.  Following his injury, claimant came \nunder the care of Dr. Arthur Johnson, neurosurgeon, who recommended surgery at the \nL4-5 and L5-S1 levels.  Claimant requested a second opinion and was seen by Dr. Barry \n\nBoggs – G305023 \n \n4 \n \nKatz,  neurosurgeon,  who  also  recommended  surgery.    Claimant  chose  not  to  undergo \nthe  recommended  surgery,  but  instead  returned  to  work  for  respondent  in  a  job  that \nallowed more supervisory work.  During this time, claimant continued to receive treatment \nin the form of pain management which primarily consisted of pain medication. \n When his back condition progressively worsened, claimant attempted to return to \nsee  Dr.  Katz,  but  Dr.  Katz  had  relocated  so  claimant  was  evaluated  by  Dr.  Tomecek, \nneurosurgeon.  Dr. Tomecek ordered an updated MRI scan and when he saw claimant \non  June  14,  2021,  he recommended  a bilateral  discectomy  and  fusion  from  L3  to  the \nsacrum.  He also discussed other options; including, stem cell injections. \n Based on claimant’s response to epidural steroid injections, Dr. Tomecek indicated \nin a report dated August 4, 2021 that he believed that claimant was still a candidate for \nstem cell injections.  Following a peer review, respondent authorized surgery but denied \napproval for the stem cell injections. \n Claimant  subsequently  requested  a  hearing  on  his  entitlement  to  the  stem  cell \ninjections recommended by Dr. Tomecek.  A  hearing on that issue was held on November \n22, 2021, and an opinion was filed December 17, 2021 finding that the stem cell injections \nwere reasonable and necessary.  That opinion was appealed by the respondent to the \nFull Commission. \n While  the  case  was  on  appeal,  respondent  filed  two  motions  to  submit  newly-\ndiscovered evidence; specifically, medical reports from Dr. Tomecek dated March 3, 2022 \nand April 13, 2022.  In the March 3, 2022 report,  Dr. Tomecek indicated that he no longer \nbelieved that the stem cell injections would benefit claimant’s condition and in the report \nof April 13, 2022 indicated that the injections would benefit his condition.  Based on the \n\nBoggs – G305023 \n \n5 \n \ninconsistency of Dr. Tomecek’s opinion, the Full Commission in an order filed May 13, \n2022  granted  the  respondent’s  motion  to  introduce  newly-discovered  evidence  and \nremanded the claim for additional proceedings.  On remand, claimant filed a motion to \ndismiss withdrawing his request for stem cell injections based on Dr. Tomecek’s opinion.  \nThis motion was granted by order filed July 11, 2022. \n Since that time claimant has filed for and received a change of physician request \nto Dr. Blankenship.  Claimant began treating with Dr. Blankenship on February 20, 2023, \nand  Dr.  Blankenship  agreed  that  claimant  was  in  need  of  surgery  but  not  the  one \npreviously  recommended  by  Dr.  Tomecek.    In  his  report  of  February  20,  2023,  Dr. \nBlankenship stated: \n  Dr. Tomacek had offered him a multilevel arthrodesis from \n  a posterior approach with pedicular fixation.  I told him that \n  is how I did the surgery 20 years ago.  We have newer and \n  better ways of accomplishing what needs to be done.  I have \n  offered him an anterior lumbar interbody arthrodesis and L5- \n  S1 with lateral interbody arthrodeses at L3-L4 and L4-L5.  He \n  would then undergone [sic] posterior stabilization with unilateral \n  cortical screw placement on the right with an extreme lateral \n  decompression at L5-S1 on the right. \n \n \n Dr.  Blankenship  performed  the  surgery  on  April  18,  2023.    Since  this  surgery, \nclaimant has continued to treat with Dr. Blankenship for continued low back pain.  He has \nalso undergone epidural steroid injections by Dr. Cannon which failed to provide any relief \nand he also underwent physical therapy. \n Although  claimant  continued  to  have  low  back  complaints,  Dr.  Blankenship  in  a \nreport  dated  March  4,  2024,  stated  that  claimant  had  reached  maximum  medical \n\nBoggs – G305023 \n \n6 \n \nimprovement and that he had a 13% impairment rating to the body as a whole as a result \nof his compensable low back injury. \n Claimant  has  filed  this  claim  contending  that  he  is  entitled  to  temporary  total \ndisability  benefits  for  loss  in  wage  earning  capacity  in  excess  of  his  13%  impairment \nrating. \n \nADJUDICATION \n Claimant contends that he is entitled to benefits for wage loss resulting from his \ncompensable injury.  Wage loss is the extent to which a compensable injury has affected \na claimant’s ability to earn a livelihood.  The Commission is charged with the duty of \ndetermining the amount of disability.  Cross v. Crawford County Memorial Hosp., 54 Ark. \nApp. 130, 923 S.W. 2d 886 (1996).  In determining wage loss disability, the Commission \nmay take into consideration various factors.  These factors include the claimant’s age, \neducation,  work  experience,  medical  evidence,  and  any  other  matters  which may  be \nreasonably be expected to affect claimant’s future earning power.  Other matters include \nmotivation,  post-injury  income,  credibility,  demeanor,  and  a  multitude  of  other  factors.  \nA.C.A.  §11-9-522; Glass  v.  Edens,  233  Ark.  786,  346  S.W.  2d  685  (1961); City  of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W. 2d 946 (1984); and Curry v. Franklin \nElectric, 32 Ark. App. 168, 798 S.W. 2d 130 (1990). \n Claimant is 53 years old and according to the functional capacities evaluation he \nobtained his GED.  Claimant testified that he began working for respondent approximately \nfifteen  years  ago.    At  the  time  of  his  injury  in  2011  he  was  a  finish  grade  operator.  \nClaimant testified that while finish grade operator was his title, he actually ran a crew of \n\nBoggs – G305023 \n \n7 \n \nabout ten people.  Per the parties stipulation, claimant earned an average weekly wage \nof $803.74 at that job.   \n At  some  point after his  injury,  claimant  was returned  to  work  for  respondent  but \ndue to his physical limitations was unable to return to his prior job.  Instead, claimant was \nplaced in a supervisory job where he was earning $31.58 per hour, working 40 hours per \nweek. \n After claimant’s surgery by Dr. Blankenship, respondent determined that based on \nlimitations  placed  on  claimant  by  Dr.  Blankenship  that  claimant  could  not  return  to  his \nsupervisory job.  Instead, claimant has been placed in a clerical/data entry position that \nallows him to sit at a desk, using a computer.  Claimant works at this job five hours a day, \nfive days a week, and is paid $22.30 an hour.   \n Claimant did not testify about any of his work experience prior to beginning work \nfor the respondent. \n Claimant  testified  that  his  medications  include  Oxycodone,  Acetaminophen, \nEtodolac,  and  Cycobenzapar.    He  testified  that  some  of  the  medications  cause \nconstipation;  make  him  tired  and  groggy;  and  cause  difficulty  concentrating.    He  also \nnotes that his pain causes him difficulty while trying to sleep.  It is claimant’s testimony \nthat he has missed some work in his clerical position due to pain caused by his injury. \n I  also  note  that  claimant  has  undergone  surgery  on  his  cervical  spine  by  Dr. \nJohnson; however, his neck condition is not a part of his workers’ compensation claim. \n Following his surgery claimant was referred for a functional capacities evaluation \nwhich was performed on March 27, 2024.  Claimant testified that he gave his best effort \nduring the evaluation but states that on the day of the evaluation he was having “bad pain, \n\nBoggs – G305023 \n \n8 \n \nsevere pain.”  Claimant also attempted to discredit the FCE report by contending that the \nevaluator was distracted during the evaluation due to a personal situation.  I do not find \nany  credible  evidence  that  the  FCE  is  invalid  or  unworthy  of  belief  due  to  any  alleged \ndistractions on the part of the evaluator.  The evaluation report contains findings based \non claimant’s effort during the testing. \n The  FCE  report  indicates  that  the  evaluation  was  unreliable  due  to  inconsistent \neffort  on  behalf  of  the  claimant.    The  report  indicates  that  there  were  only  24  of  46 \nconsistency  measures  within  expected  limits.    One  such  example of  inconsistent  effort \ntesting involves Bi-Manual Lifting - Floor to Knuckle: \n  Mr. Boggs demonstrated that he was unable to left the \n  empty box off of the floor using both arms.  He was then \n  offered a different weight.  He proceeded to complete all \n  lifts of the second weight while using only his RUE.  The \n  second weight weighed the same as the empty box.  This \n  is not indicative of reliable effort. \n \n \n The evaluation determined that claimant demonstrated the ability to work in at least \nthe sedentary classification of work over the course of a normal eight-hour work day.  It \nalso noted that due to the unreliable effort, claimant’s abilities could be higher.  The report \nindicated that claimant demonstrated the ability to occasionally lift/carry up to 15 pounds \nand occasionally lift up to 5 pounds with his right upper extremity and left upper extremity \nwhen lifting from knuckle to shoulder level.   \n Following the functional capacities evaluation, Dr. Blankenship completed a form \nsetting out his own restrictions for the claimant.  In some respects, his limitations were \nless restrictive than the FCE.  While the FCE had lifting restrictions of 5-15 pounds, Dr. \nBlankenship  indicated  that  claimant  could  lift  15-20  pounds  (Floor  to  Waist,  Waist  to \n\nBoggs – G305023 \n \n9 \n \nShoulder,  and  Shoulder  to  Overhead)  and  that  he  could  carry  25-30  pounds.    He  also \nindicated that claimant could frequently sit/walk; sit; data entry/typing; simple grasping; \nsquat; kneel; climb; reach; operate foot controls; operate hand controls; and drive.  He \nindicated  that  claimant  could  occasionally  bend,  twist,  and  operate  heavy  equipment.  \nClaimant could not push and pull or weed eat.  Dr. Blankenship indicated that claimant \nshould not lift more than 15 or 20 pounds; that he should not engage in prolonged bending \nor  stooping;  and  that  he  should  not  constantly  carry  more  than  25-30  pounds.   Dr. \nBlankenship  did  not  indicate  that  claimant  was  capable  of  performing  any  activity \nconstantly. \n The form completed for respondent by Dr. Blankenship indicates that for purposes \nof assigning restrictions that Occasional is defined as up to 2.6 hours of the day; Frequent \nis up to 5.3 hours of the day; and Constant as 5.3 hours or more.  Based on the fact that \nDr.  Blankenship did  not  indicate  that  claimant  could do anything  “constantly”,  but a \nnumber of things “frequently”, respondent determined that claimant was only capable of \nworking five hours per day and has assigned him to a computer data entry job for five \nhours per day, five days a week.  Claimant has acknowledged that he was informed that \nhe could alternate between sitting and standing in the performance of this data entry job. \n In  summary,  claimant has experienced  some  loss  in  wage  earning  capacity.   At \nsome point he returned to work for respondent and was placed in a supervisory position \nworking eight hours a day, five days per week, and earning $31.58 per hour.  Currently, \nclaimant is working for respondent performing a data entry job working five hours a day, \nfive days a week, at a rate of $22.30 per hour.  While claimant testified that he does not \nfeel like he can do any job at the present, his testimony is not supported by the restrictions \n\nBoggs – G305023 \n \n10 \n \nplaced  on  him  by  Dr.  Blankenship.    According  to  the  limitations  assigned  by  Dr. \nBlankenship, claimant is not limited to a sedentary-type job.  However, he is limited in the \nnumber of hours he is capable of performing work within his limitations.  Finally, I note \nthat according to the FCE report, claimant gave an unreliable effort during the evaluation. \n Based  upon  the  foregoing  wage  loss  factors,  I  find  that  claimant  has  suffered  a \nloss in wage earning capacity in an amount equal to 35% to the body as a whole. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe has suffered a loss in wage earning capacity in an amount equal to 35% to the body \nas  a  whole.    Respondent  has  controverted  claimant’s  entitlement  to  payment  of \npermanent partial disability benefits in an amount equal to 35% based upon this loss in \nwage earning capacity. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable  to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby the claimant.    \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $637.45. \n All sums herein accrued are payable in a lump sum and without discount. \n \n \n\nBoggs – G305023 \n \n11 \n \n IT IS SO ORDERED. \n \n      ________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":18152,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G305023 JOHN BOGGS, Employee CLAIMANT ARKANSAS DEPT. OF TRANSPORTATION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS, Carrier RESPONDENT OPINION FILED JULY 16, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Ar...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["lumbar","back","cervical","neck","shoulder"],"fetchedAt":"2026-05-19T22:51:22.568Z"},{"id":"alj-H305647-2024-07-16","awccNumber":"H305647","decisionDate":"2024-07-16","decisionYear":2024,"opinionType":"alj","claimantName":"Dylan Gray","employerName":null,"title":"GRAY VS. PREDDY CONSTRUCTIONAWCC# H305647July 16, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GRAY_DYLAN_H305647_20240716.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRAY_DYLAN_H305647_20240716.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.:H305647 \n \nDYLAN GRAY,  \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nPREDDY CONSTRUCTION, \nEMPLOYER                                                                                                            RESPONDENT              \n                                                                                  \nFIRSTCOMP INSURANCE COMPANY,                \nINSURANCE CARRIER                                                                                        RESPONDENT                                               \n \nMARKEL SERVICE, INC., \nTHIRD PARTY ADMINSTRATOR                                                                      RESPONDENT  \n \n \nOPINION FILED JULY 16, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant, pro se, failed to appear at the hearing.      \n \nRespondents represented by the Honorable Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on the Respondents’ motion to dismiss due to a lack of prosecution, on \nApril 24, 2024, in this workers’ compensation claim pursuant to Dillard v. Benton County Sheriff’s \nOffice,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004).    Here,  the  sole  issue  for determination  is \nwhether this claim should be dismissed due to the Claimant’s failure to prompt prosecute it under \nthe  provisions  of Ark.  Code  Ann.  §11-9-702 (a) (4) (Repl.  2012),  and/or Arkansas Workers’ \nCompensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.   \n\nGRAY – H305647 \n \n2 \n \nThe record consists of the transcript of the April 24, 2024, hearing and the documents held \ntherein.  Also made a part of the record were Commission’s Exhibit 1 consisting of thirty-seven \n(37) pages; and the Respondents’ Hearing Exhibit consisting of  one (1)  page was  marked  as \nRespondents’ Exhibit 1.  Both exhibits were made a part of the record without objection. \nNo testimony was taken at the hearing. \n            Procedural History \n The Claimant has alleged that he sustained an injury at work on August 4, 2023, for which \nhe has asserted his entitlement to medical treatment and indemnity benefits.  On October 1, 2023, \nthe  Claimant  filed  a letter-claim requesting a hearing on his workers’ compensation case.  The \nRespondents have controverted this claim in its entirety and no benefits have been paid.  Therefore, \nthis is a claim for initial benefits.  The Claimant’s letter meets the requirement for filing a claim \nfor initial benefits.  Specifically, the Claimant wrote in his letter to the Commission that his claim \nwas due to heat exhaustion and his boss would not allow him to go home when he knew he had a \nfever.  Explicitly, the Claimant wrote: “... It was explained to me that my claim was for Covid \nonly and that is not correct, I found out I had Covid while leaving the hospital.”   \n    The  Respondents  filed  a  Form  AR-2  with  the  Commission  on  August  31, 2023, \ncontroverting the claim.  Their grounds for denial of the claim were stated as: “Denied as work \nwas not the contributing factor in Claimant contracting COVID.”  \n Subsequently, on November 13, 2023, the Legal Advisors’ Division returned the claim to \nthe  Office  of  the  Clerk  of  the  Commission asking  that  it be  assigned to  an Administrative Law \nJudge  for  a  hearing  after  their  attempt  to  set  up  a mediation  conference failed.   As  a  result,  the \nclaim was assigned to this office for adjudication.  \n\nGRAY – H305647 \n \n3 \n \nUpon receipt of this claim, the prehearing process was started.  Specifically, on November \n29, 2023, I mailed Prehearing Questionnaires and Preliminary Notices to the parties.  The Claimant \ndid not make a responsive filing.  Therefore, on February 5, 2024, I returned the case to the Clerk \nof the Commission asking that it be returned to the Commission’s general files, which was done.     \nSince this time, the Claimant has failed to make a request for a hearing and has not taken \nany affirmative action to pursue his claim for workers’ compensation benefits.           \nTherefore, the  Respondents  filed  a  Motion  to  Dismiss  for  Failure  to  Prosecute  with the \nCommission on  March  4,  2024,  along  with  a  certificate  of  service showing that  a  copy  of  this \npleading was sent via email and U.S Mail.   \nOn March 5, 2024, the Commission sent a letter to the Claimant letting him know about \nthe motion for dismissal of his workers’ compensation claim, along with a deadline of twenty (20) \ndays for filing a written objection/response. \nSaid letter notice was sent to the Claimant by way of first-class and certified mail via the \nPostal  Service.   The  letter  sent  to  Claimant  via  certified  mail  was  returned  to  the  Commission \nmarked “Return to Sender – vacant – Unable to Forward.”  However, the letter sent via first-class \nmail has not been returned to the Commission. \nYet, there has been no response from the Claimant.  \nIn a Notice of Hearing dated March 27, 2024, setting this case for a dismissal hearing on \nApril 24, 2024, at the Commission in Little Rock, Arkansas. \nSaid hearing notice was sent to the Claimant via first-class and certified mail via the Postal \nService.  The letter sent to Claimant via certified mail was returned to the Commission marked \n“Return to Sender – vacant – Unable to Forward.”  However, the letter sent via first-class mail has \nnot been returned to the Commission.  Therefore, I find that the Claimant had notice of the hearing. \n\nGRAY – H305647 \n \n4 \n \nStill, there has been no response from the Claimant.  \nNevertheless,  a hearing  was conducted before  the  Commission, on  the  Respondents’ \nmotion to dismiss as scheduled.   During the hearing, counsel for the Respondents moved that this \nclaim be dismissed due to a lack of prosecution under Ark. Code Ann. §11-9-702 and Rule 099.13, \nwithout prejudice.  Counsel specifically noted that the Claimant has asserted a claim for a heat-\nrelated, and possibly a COVID injury, but there has been no bona fide effort by the Claimant to \npursue his claim.  The Respondents’ attorney also moved that the within claim be dismissed for a \nlack of prosecution because it has been more than six (6) months since the assertion of a claim by \nthe Claimant without any action being taken by the Claimant to pursue his claim.  Moreover, the \nClaimant did not appear at the hearing to object to his claim for workers’ compensation benefits \nbeing dismissed.   \n                    Adjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in this \nmotion for the dismissal of this claim are outlined below:  \nMainly, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for a hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n\nGRAY – H305647 \n \n5 \n \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \nReview of the records shows that more than six (6) months have passed after the filing of \nthis claim.  However, since that time, the Claimant has failed to make a bona fide request for  a \nhearing with respect to his claim for workers’ compensation benefits.  Hence, no probative action \nwhatsoever has been put forth by the Claimant to resolve or pursue his claim.      \nUnder these circumstances, I am persuaded that the Claimant has had ample time to pursue \nthis claim for benefits but has not done so.  Therefore, based on my review of the documentary \nevidence, and all other matters properly before the Commission, I find that the Respondents’ \nmotion to dismiss the within claim for initial workers’ compensation benefits should be granted \npursuant to the provisions of Ark. Code Ann. §11-9-702 (a)(4) , and Rule 099.13. Accordingly, \nthis claim is hereby respectfully dismissed without prejudice to  the  refiling of it within  the \nlimitation period specified by law. \n                                         Findings of Fact and Conclusions of Law \nOn  the  basis  of  the record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim due to a lack of prosecution, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since the filing of his letter-claim \nfor  workers’  compensation  benefits in  October 2023,  and  he  has  not \nobjected to his claim being dismissed.  Hence, the evidence preponderates \nthat   the   Claimant   has   failed   to   prosecute   his claim  for  workers’ \ncompensation benefits.      \n\nGRAY – H305647 \n \n6 \n \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702 (a)(4), \nand  Commission  Rule  099.13,  to  the  refiling  of  it  within  the  limitation \nperiod specified by law.  \n \nORDER \nBased on the foregoing Findings of Fact and Conclusions of Law, I find that pursuant to \nArk. Code Ann. §11-9-702 (a)(4)  and Rule 099.13, this claim is hereby respectfully dismissed, \nwithout prejudice, to the refiling within the limitation period specified by law.      \nIT IS SO ORDERED. \n   \n \n                                                                      ________________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":11245,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.:H305647 DYLAN GRAY, EMPLOYEE CLAIMANT PREDDY CONSTRUCTION, EMPLOYER RESPONDENT FIRSTCOMP INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT MARKEL SERVICE, INC., THIRD PARTY ADMINSTRATOR RESPONDENT OPINION FILED JULY 16, 2024 Hearing held before Administrative...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:51:24.639Z"},{"id":"alj-H401302-2024-07-16","awccNumber":"H401302","decisionDate":"2024-07-16","decisionYear":2024,"opinionType":"alj","claimantName":"Sean Hogan","employerName":null,"title":"HOGAN VS. KRAMER & COMPANY MECHANICALAWCC# H401302July 16, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HOGAN_SEAN_H401302_20240716.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOGAN_SEAN_H401302_20240716.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H401302 \n \nSEAN P. HOGAN, Employee                                                                          CLAIMANT \n \nKRAMER & COMPANY MECHANICAL, Employer                                  RESPONDENT \n \nAMTRUST NORTH AMERICA, Carrier/TPA                                             RESPONDENT                                                                                                    \n \n \n OPINION FILED JULY 16, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by WILLIAM C. FRYE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On June 19, 2024, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on April 24, 2024 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The  employe/employer/carrier  relationship  existed  among  the  parties  on \nFebruary 8, 2024. \n 3.   The claimant was earning an average weekly wage of $1,350.00 which would \nentitle him to compensation at the weekly rates of $876.00 for total disability benefits and \n\nHogan – H401302 \n \n 2 \n$657.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injury to claimant’s head, left elbow, left forearm, and left \nhand on February 8, 2024. \n2.   Related medical. \n3.    Temporary total disability benefits from date last paid through April 11, 2024. \n4.    Attorney’s fee. \nAt the time of the hearing claimant noted that no compensation benefits had been  \npaid in this claim; therefore, he is requesting temporary total disability benefits from the \ndate of the injury through April 11, 2024, the date he returned to work for respondent. \n The claimant contends he suffered compensable injuries to his head, left elbow, \nleft forearm, and left hand on February 8, 2024.  He contends he is entitled to temporary \ntotal disability benefits, medical, and an attorney’s fee.  Claimant reserves all other issues. \n The respondents contend the claimant fell off a ladder on February 8, 2024.  He \nunderwent  a  drug  screen  that  confirmed  the  presence  of  THC  due  to  marijuana  use.  \nUnder A.C.A. §11-9-102, the claimant cannot overcome the presumption  that the injury \nwas caused by drug use.  The claimant did return to work on April 11, 2024 at regular \nduty.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nHogan – H401302 \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non April 24, 2024 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his left upper extremity and his head on February \n8, 2024. \n 3.      Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injury. \n 4.    Claimant is entitled to temporary total disability benefits beginning February 9, \n2024 and continuing through April 10, 2024. \n 5.    Claimant’s attorney is entitled to a controverted attorney fee on all unpaid \nindemnity benefits. \n \n FACTUAL BACKGROUND \n Claimant is a 49-year-old man who began performing HVAC work for respondent \nin 2021.  On February 8, 2024, he was on a ladder working on a piece of return duct that \nwas going through a brick wall in a restaurant.  While performing this activity claimant fell \noff  his  ladder,  breaking  his  arm  and  hitting  his  head.    Claimant  testified  that  he \nmomentarily lost consciousness and upon wakening he was taken to the emergency room \nat Northwest Medical Center in Springdale by Matt, his supervisor.   \n At  the  emergency  room  claimant  underwent  a  procedure  to  set  his  broken  arm \nwhich was then placed in a splint.  The discharge diagnosis indicates that claimant was \n\nHogan – H401302 \n \n4 \n \ndiagnosed with a closed extra-articulated fracture of distal end of left radius; closed non-\ndisplaced fracture of the left frontal skull; closed traumatic minimally displaced fracture of \nthe distal end of the left ulna; lamina papyracea fracture; and nasal bone fracture.  While \nat the hospital claimant underwent a urine test which was positive for THC.   \n Claimant  subsequently  came  under  the  care  of  Dr.  Henley  who  recommended \nsurgery with metal hardware to treat claimant’s arm fracture.  This surgery was performed \nby  Dr.  Henley  on  February  22,  2024.    On  March  25,  2024,  Dr.  Henley  indicated  that \nclaimant could return to work without restrictions in 10 days and claimant returned to work \nfor respondent on April 11, 2024.   \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis  head,  left  elbow,  left  forearm,  and  left  hand  on  February  8,  2024.    He  requests \npayment  of  medical  treatment,  temporary  total  disability  benefits,  and  a  controverted \nattorney fee. \n \nADJUDICATION \n Claimant contends that he suffered a compensable injury to his head, left elbow, \nleft forearm, and left hand when he fell off a ladder on February 8, 2024.  Claimant’s claim \nis for a specific injury identifiable by time and place of occurrence.   In  order  to  prove  a \ncompensable injury as the result of a specific incident that is identifiable by time and place \nof occurrence, a claimant must establish by a preponderance of the evidence (1) an injury \narising out of and in the course of employment; (2) the injury caused internal or external \nharm to the body which required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings establishing an injury; and (4) the injury \n\nHogan – H401302 \n \n5 \n \nwas caused by a specific incident identifiable by time and place of occurrence.  Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630.    \n While receiving medical treatment at the emergency room on February 8, claimant \nunderwent a urine drug screen test and according to the toxicology report the test was \npositive for THC (marijuana).  As a result, respondent contends that claimant’s claim for \ncompensation benefits is barred by the provisions set forth in A.C.A. §11-9-102(4)(B)(iv) \nwhich provides: \n   (B)  “Compensable injury” does not include: \n \n  .... \n \n   (iv)(a) Injury where the accident was substantially \n  occasioned by the use of alcohol, illegal drugs, or \n  prescription drugs used in contravention of physician’s \n  orders. \n \n   (b)  The presence of alcohol, illegal drugs, or \n  prescription drugs used in contravention of a physician’s \n  orders shall create a rebuttable presumption that the \n  injury or accident was substantially occasioned by the \n  use of alcohol, illegal drugs, or prescription drugs used \n  in contravention of physician’s orders.  \n \n   (c)  Every employee is deemed by his or her \n  performance of services to have impliedly consented \n  to reasonable and responsible testing by properly \n  trained medical or law enforcement personnel for the \n  presence of any of the aforementioned substances in \n  the employee’s body. \n \n   (d)  An employee shall not be entitled to compensa- \n  tion unless it is proved by a preponderance of the evidence \n  that the alcohol, illegal drugs, or prescription drugs utilized \n  in contravention of the physician’s orders did not substantially \n  occasion the injury or accident. \n \n \n It  is  undisputed  that  claimant  tested  positive  for  marijuana  metabolites  in  the \n\nHogan – H401302 \n \n6 \n \nemergency room immediately after his accident.  Therefore, a rebuttable presumption has \nbeen  created  pursuant  to  Arkansas  workers’  compensation  law  that  the  injury  was \nsubstantially  occasioned  by  the  use  of  illegal  drugs  or  prescription  drugs  used  in \ncontravention of a physician’s orders.  The burden of proof requires claimant to prove that \nthe accident was not substantially occasioned by the use of marijuana.   \n At  the  hearing  claimant  did  not  deny his use  of marijuana,  but  contends  that  he \nhas  a  medical  marijuana  card  which  he  uses  for  pain  associated  with  a  prior  accident \ninvolving his back, head, and neck.  Claimant testified that he only uses marijuana in the \nevening and normally takes only one or two puffs.  He testified that the marijuana does \nnot  intoxicate him,  and  that  when he  wakes  up  the  next  morning he  does  not  feel  any \neffects of the marijuana he smoked the night before. \n Also testifying at the hearing was Sherry King, claimant’s mother, who testified that \nshe and claimant lived together and that claimant normally takes one or two puffs in the \nevening some two or three days a week.  She also testified that she had not observed \nclaimant being intoxicated from marijuana.   \n Specifically, with respect to the fall on February 8, 2024, claimant testified that he \nprobably  smoked marijuana the night  before  his  fall.    He also  testified  that he  was not \naffected by marijuana on the date of the accident and that he did not use marijuana in the \nmorning before going to work and has never used it on the job.   \n In support of his contention that the injury was not substantially occasioned by his \nuse of marijuana, claimant has offered the testimony of Bryan Mendoza who also works \nfor  respondent  as  an  HVAC  technician.    Mendoza  testified  that  on  February  8  he  had \nbeen working in close proximity with claimant for five or six hours before claimant fell from \n\nHogan – H401302 \n \n7 \n \nthe  ladder.   Mendoza  testified  that  he  was  working  within  a  couple  of  feet  of  claimant \nduring this period of time and that he did not notice anything unusual about claimant’s \nbehavior or think that claimant was engaging in risky behavior.  Mendoza testified that he \ndid not see the claimant fall, but did see claimant as he was falling. \n Also testifying at the hearing was Michael Kramer.  Kramer and his wife are co-\nowners of the respondent.  Kramer testified that while on a ladder you were not supposed \nto lean from one side to the other more than two or three feet and that you are supposed \nto keep your body within the frame of the ladder itself and if you cannot reach something \nyou are supposed to move the ladder.  Nevertheless, Kramer also admitted that at times \nhe  had  used  poor  judgement  and  had  simply  gotten  lucky  with  respect  to  falling  off  a \nladder: \n  You know, I was blessed with pretty good balance, I \n  guess, so I always kind of knew I had that, but you know \n  you take that for granted.  But I would say probably \n  every once in a while, anyone who is good at their job \n  has probably cheated it.  I am one of the fortunate ones \n  that has never gotten hurt from it.  But like I said, I am \n  sure I have cheated it myself.   \n \n     *** \n \n   THE COURT:  You said you had cheated, but got \n  lucky in the past.  What you meant was you leaned out \n  further than you really should have, but hadn’t fallen over? \n \nA.      Yes.  And I mean I have never even come close. \nBut, yes, I have.  I mean I am from the field. \n \n  \n Based  upon  the  foregoing  evidence,  I  find  that  claimant  has  overcome  the \npresumption  that  his  injury  was  substantially  occasioned  by  the  use  of  marijuana.    As \npreviously noted, claimant testified that he only took one or two puffs of marijuana at night \n\nHogan – H401302 \n \n8 \n \nfor pain.  He testified that this did not cause him to become intoxicated and that he did \nnot feel any effects of marijuana the following morning.  Likewise, claimant’s mother also \ntestified that claimant only took one or two puffs per evening, and that this occurred only \ntwo or three evenings per week. With respect to February 8 in particular, claimant testified \nthat while he had probably smoked marijuana the night before his fall, he also testified \nthat he was not affected by it on the date of the accident and that he had not used it in \nthe morning and had never used it on the job.  More importantly, Bryan Mendoza, a co-\nworker of the claimant who worked in close proximity with claimant for some five to six \nhours  that  day  testified  that  he  did  not  notice  anything unusual about the claimant’s \nbehavior or notice that claimant was engaging in risky behavior.  Finally, even according \nto Michael Kramer, one of the co-owners of the respondent, he has been lucky in the past \nin cheating while leaning out over a ladder but fortunately had not been hurt.  Based on \nthe foregoing evidence, particularly the testimony of the claimant, his mother, Mendoza, \nand Kramer, whose testimony I find to be credible, I find that claimant has rebutted the \npresumption  that  his  injury  or accident  was  substantially  occasioned  by  the  use  of \nmarijuana.  Therefore, it is not a bar to his claim. \n I  do  find  that  claimant  has  satisfied  the  remaining  elements  of  compensability.  \nSpecifically, I find that claimant has met his burden of proving that his injury arose out of \nand in the course of his employment with respondent and that it was caused by a specific \nincident identifiable by time and place of occurrence.  Here, there is no question that while \nperforming HVAC work for the respondent claimant fell off a ladder on February 8, 2024.  \nI also find that claimant’s injury caused internal harm to his body that required medical \nservices or resulted in disability and that he has offered medical evidence supported by \n\nHogan – H401302 \n \n9 \n \nobjective findings.  Testing at the emergency room in the form of a CT scan of claimant’s \nbrain and head revealed a fracture and bruising to claimant’s forehead was noted as well \nas  blood  from  his  nose.    Finally,  radiographic  testing  revealed  a  fractured  left  forearm \nwhich  resulted  in  the  arm  being  set  and  placed  in  a  sling.    Claimant  subsequently \nunderwent surgery by Dr. Henley to repair the arm fracture with the installation of metal \nhardware.  This surgery occurred on February 22, 2024. \n Accordingly, I find that claimant has met his burden of proving by a preponderance \nof the evidence that he suffered a compensable injury to his left upper extremity including \nhis forearm, wrist, and hand as well as to his head on February 8. \n Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injury. \n The final issue for consideration involves claimant’s request for temporary total \ndisability benefits.  The injury to claimant’s left arm is a scheduled injury.  An employee \nwho  has  suffered  a  scheduled  injury  is  entitled  to  receive  temporary  total  disability \nbenefits during their healing period or until they return to work regardless of whether they \nare  totally  incapacitated  from  earning  wages.   Wheeler  Construction  Company  v. \nArmstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).  Here, claimant did not return to \nwork the day after his fall and did not return to work for respondent until April 11, 2024, \nafter  he was  released  by  Dr.  Henley.    Accordingly,  I  find  that  claimant  is  entitled  to \ntemporary  total  disability  benefits  beginning  February  9,  2024,  and  continuing  through \nApril 10, 2024. \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \n\nHogan – H401302 \n \n10 \n \nhe suffered a compensable injury to his left upper extremity including his forearm, wrist, \nand hand.  He also suffered a compensable injury to his head.  Respondent is liable for \npayment of all reasonable and necessary medical treatment provided in connection with \nclaimant’s compensable injuries.  Claimant is entitled to temporary total disability benefits \nbeginning February 9, 2024 and continuing through April 10, 2024. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable  to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \nRespondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $532.45. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n    ________________________________________ \n     GREGORY K. STEWART \n     ADMINISTRATIVE LAW JUDGE","textLength":17603,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H401302 SEAN P. HOGAN, Employee CLAIMANT KRAMER & COMPANY MECHANICAL, Employer RESPONDENT AMTRUST NORTH AMERICA, Carrier/TPA RESPONDENT OPINION FILED JULY 16, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, ...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["fracture","back","neck","wrist"],"fetchedAt":"2026-05-19T22:51:26.685Z"},{"id":"alj-H108811-2024-07-16","awccNumber":"H108811","decisionDate":"2024-07-16","decisionYear":2024,"opinionType":"alj","claimantName":"Julie Revels","employerName":null,"title":"REVELS VS. MAGNET COVE ELEMENTARY SCHOOLAWCC# H108811July 16, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/REVELS_JULIE_H108811_20240716.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REVELS_JULIE_H108811_20240716.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H108811 \n \nJULIE REVELS,  \nEMPLOYEE CLAIMANT \n \nMAGNET COVE ELEMENTARY SCHOOL, \nEMPLOYER                                                                                                         RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASS’N. WORKERS’ \nCOMPENSATION TRUST/ARKANSAS SCHOOL  \nBDS. ASS’N, INS. CARRIER/TPA                                               RESPONDENT \n \nOPINION FILED JULY 16, 2024 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative Law Judge (ALJ) Mike Pickens on April 17, 2024, in Little Rock, Pulaski County, \nArkansas.  \n \nThe claimant was represented by the Honorable Gary Davis, Davis Law Firm, Little Rock, Pulaski \nCounty, Arkansas.  \n \nThe respondents were represented by the Honorable Melissa Wood, Worley, Wood & Parrish, P.A., \nLittle Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \n \n In the prehearing order filed March 7, 2024, the parties agreed to the following stipulations, \nwhich they affirmed on the record at the hearing: \n1. The Arkansas Workers' Compensation Commission (the Commission) has \n jurisdiction over this claim. \n \n2. The  employer/employee/carrier-TPA  relationship existed  with  the  claimant at all \nrelevant  times including September  21,  2021,  when  the  claimant  sustained  an \nadmittedly compensable injury to her right shoulder, for which the respondents paid \nmedical and indemnity benefits. \n \n3. The claimant’s average weekly wage (AWW) was $1,128.44, which is sufficient to \nentitle her to weekly compensation rates of $736.00 for temporary total disability \n(TTD), and $552.00 for permanent partial disability (PPD) benefits. \n \n \n \n\nJulie Revels, AWCC No. H108811 \n \n2 \n \n4. The claimant’s authorized treating physician assigned her a permanent anatomical \nimpairment rating of 11% to the body-as-a-whole (BAW). \n \n5. The respondents have accepted and paid, or are in the process of paying, a permanent \nanatomical impairment rating of five percent (5%) BAW. \n \n6. The respondents controvert only the difference between the 11% BAW and five 5% \nBAW impairment ratings, which totals six percent (6%) BAW. \n \n7. The parties specifically reserve any and all other issues for future determination and/or \nlitigation. \n \n(Commission Exhibit 1 at 2; T. at 4-5). Pursuant to the party’s mutual agreement the issues \nlitigated at the hearing were: \n1. Whether the claimant is entitled to PPD benefits commensurate with the eleven \npercent 11% BAW, or the five percent 5% BAW permanent anatomical impairment \nrating pursuant to the applicable American Medical Association Guides to the \nEvaluation of Permanent Impairment (AMA, 4\nth\n Edition 1993) (the AMA Guides). \n \n2. Whether and to what extent the claimant’s attorney is entitled to a controverted fee on \nthese facts. \n \n3. The parties specifically reserve any and all other issues for future determination \nand/or litigation. \n \n(Comms’n Ex. 1 at 2; T. 4-5). \n \n The claimant contends she sustained admitted compensable injuries to her right shoulder. \nShe contends her authorized, principal treating physician assigned her a permanent anatomical \nimpairment rating of 11% BAW, and she is entitled to PPD benefits based on this 11% BAW rating. \nShe contends the respondents have accepted and will pay only a 5% BAW permanent anatomical \nimpairment rating. The claimant contends the respondents have controverted payment of PPD \nbenefits commensurate with the difference between the 11% BAW rating and the 5% BAW rating, \nwhich is 6% BAW and, therefore, her attorney is entitled to a controverted fee based on this amount \n(6%  BAW).  Finally,  the  claimant’s  attorney  respectfully  requests the  Commission  order  the \n\nJulie Revels, AWCC No. H108811 \n \n3 \n \nrespondents to deduct any attorney’s fees the claimant owes based on controverted benefits she \nmay receive by award or otherwise, and to pay his attorney’s fees by separate check payable \ndirectly to him. (Comms’n Ex. 1 at 3; T. 4-5; 102-104). \n  The respondents contend they have accepted and paid all appropriate benefits related to the \nclaimant’s September 21, 2021, compensable shoulder injury. The respondents contend they have \naccepted a 5% BAW permanent anatomical impairment rating, and that this 5% BAW rating is \nsupported by the AMA Guides, while the 11% rating is not supported by the AMA Guides. The \nrespondents reserve the right to supplement their contentions and to assert any and all other \napplicable defenses and arguments upon the completion of necessary investigation and discovery. \nThe  respondents  reserve  any  and  all  other  issues  for  future  determination  and/or  litigation. \n(Comms’n Ex. 1 at 3; T. 4-5; T. 104-106). \nSTATEMENT OF THE CASE \n The claimant, Ms. Julie Revels (the claimant), is 57 years old. She has worked as an \nelementary school teacher for some 34 years. She has worked for the Magnet Cove School District \nfor 21 years, and was working there as a third (3\nrd\n) grade teacher at the time of her admittedly \ncompensable September 21, 2021, right shoulder injury. On September 21, 2021, the claimant \nslipped on some water that had been spilled in her classroom, and fell sideways onto her right \nshoulder. (T. 10-15). The claimant was treated by Dr. Christopher Young, a Hot Springs, Arkansas \northopedic surgeon. Dr. Young ordered an MRI which revealed a torn rotator cuff in the claimant’s \nright shoulder, and he performed surgery to repair the tear. The claimant was off work some six \n(6) weeks, and thereafter underwent about a year of physical therapy (PT). Dr. Young opined the \nclaimant reached maximum medical improvement (MMI) as of November 8, 2022, and noted the \nshe was to undergo a functional capacity evaluation (FCE), apparently in order to assist him in \n\nJulie Revels, AWCC No. H108811 \n \n4 \n \ndetermining her permanent anatomical impairment. (T. 10-23; Claimant’s Exhibit 1 at 76; 1-76; \nRespondents’ Exhibit 1 at 1-3).  \n On December 21, 2022, the claimant underwent the FCE at Functional Testing Centers, \nInc. (Functional Testing Centers), of Mountain Home, Arkansas, which is owned and operated by \nMr. Rick Byrd and Mr. Casey Garretson. The claimant’s FCE results were deemed to be reliable, \nwith the claimant performing the test demonstrating 50 out of 50 of the consistency measures. \nBased on the FCE results Mr. Garretson, an occupational therapist specializing in functional \ncapacity testing, opined the claimant was capable of returning to full duty work, and assigned her \na permanent anatomical impairment rating of 9% to the right upper extremity, and 5% BAW. This \nimpairment rating report cites the Arkansas Court of Appeals’ decision in Hayes v. Wal-Mart \nStores, Inc., 71 Ark. App. 207, 29 S.W.3d 751 (Ark. App. 2000), wherein the court held that passive \nrange-of-motion (ROM) tests (where the doctor or examiner manipulates the claimant’s arm) were \nnot under the claimant’s voluntary control and, therefore, were objective in nature; while active \nROM tests (where the claimant was asked to raise her arm as high as she could, etc.) were in fact \nsubjective in nature. As stipulated, the respondents accepted and paid the 5% BAW impairment \nrating. (RX1 at 4-29; 24; Stipulation No. 5, supra.). \n On March 2, 2023, Dr. Young saw the claimant in follow-up of the FCE and, based on his \nreading of the FCE, the claimant’s significant loss of use of her right arm in performing activities \nwhich required her to lift and use her right arm above her head, as well as his interpretation of the \nAMA Guides, Dr. Young assigned the claimant an 11% BAW impairment rating. (CX1 at 78-81; \nand T. 18-45). \n Some six (6) months later Mr. Rick Byrd of Functional Testing Centers was asked and did \nwrite a letter to the respondents’ adjuster entitled, “Impairment Rating Review” in which he \n\nJulie Revels, AWCC No. H108811 \n \n5 \n \nrendered an opinion that Dr. Young’s 11% BAW impairment rating was not properly based on the \nAMA Guides. Mr. Byrd also reaffirmed his and Mr. Garretson’s opinion that based on the reliable \nFCE results and the AMA Guides, the claimant was entitled to a permanent anatomical impairment \nrating of 5% BAW which, again, the respondents accepted and paid. (RX1 at 30). Both Mr. \nGarretson and Mr. Byrd testified at the hearing, explaining in some detail how they arrived at the \n5% BAW rating; and they both disagreed with Dr. Young’s 11% BAW impairment rating, affirming \nand standing by their 5% BAW impairment rating based on the reliable FCE results and their \ninterpretation of the AMA Guides. (T. 46-99). \n Finally, in a progress note report dated September 5, 2023, after having reviewed Mr. \nByrd’s “Impairment Rating Review”, Dr. Young once again examined the claimant and concluded \nhe had no reason to change his 11% BAW impairment rating; and he reaffirmed his 11% BAW \nimpairment rating stating it was in fact based on the AMA Guides. (CX1 at 82-83). Neither party \nchose to depose Dr. Young and to introduce into evidence his evidentiary deposition.  \nDISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2024 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-9-\n704(c)(3) (2024 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n\nJulie Revels, AWCC No. H108811 \n \n6 \n \n(Ark. App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. App. \n196, 737 S.W.2d 633 (Ark. App. 1987). \n All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \n The Commission has the duty to weigh the medical evidence just as it does any other \nevidence, and its resolution of the medical evidence has the force and effect of a jury verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince to weigh the totality of the medical evidence and to determine what evidence is most \ncredible given the totality of the credible evidence of record. Minnesota Mining & Mfg’ing v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n \n \n\nJulie Revels, AWCC No. H108811 \n \n7 \n \nThe preponderance of the credible evidence of record demonstrates the claimant is entitled \nto the 11% permanent anatomical impairment rating Dr. Young assigned her which was \nbased on the FCE results, his own physical examinations, and the applicable AMA Guides. \n \nPermanent Anatomical Impairment, Generally \n \n  The Arkansas Court of Appeals summarized the law as follows regarding compensable \npermanent impairment in Wayne Smith Trucking, Inc. v. McWilliams, 2011 Ark. App. 414, 384 \nS.W.3d 561: \n\"Permanent  impairment\"  has  been  defined  as  \"any  permanent  functional  or \nanatomical loss remaining after the healing period has ended.\" Main v. McGehee \nMetals, 2010 Ark. App. 585, at 9, ___ S.W.3d ___, ___. Any determination of the \nexistence or extent of physical impairment must be supported by objective and \nmeasurable findings. Dillard's v. Johnson, 2010 Ark. App. 138, ___ S.W.3d ___. \n\"Objective findings\" are those that cannot come under the voluntary control of the \npatient, and specifically exclude pain, straight-leg-raising test, and range-of-motion \ntests.  Ark.  Code  Ann.  §  11-9-102(16)(A)  (Repl.  2002); Vangilder  v.  Anchor \nPackaging, Inc., 2011 Ark. App. 240. In Wal-Mart Assocs., Inc. v. Ealey, 2009 Ark. \nApp. 680, this court, in addressing an impairment rating, held that there was no \nrequirement  that  medical  testimony  be  based  solely  or expressly  on  objective \nfindings, only that the medical evidence of the injury and impairment be supported \nby objective findings. Furthermore, permanent benefits shall be awarded only upon \na determination that the compensable injury was the major cause of the disability \nor  impairment. Ark. Code Ann. §  11-9-102(4)(F)(ii)(a)  (Supp.  2009).  \"Major \ncause\"  means  more than  fifty  percent  of  the  cause. Ark. Code Ann.  §  11-9-\n102(14)(A) (Supp. 2009).  \n \n  An injured employee is entitled to compensation for the permanent functional or \nanatomical loss of use of the body as a whole whether his earning capacity is diminished or not. \nVangilder, supra. The Commission is authorized to determine what portion of the medical and other \nrelevant evidence to credit and to translate that evidence into a finding of permanent impairment \nusing The American Medical Association Guides to the Evaluation of Permanent Impairment \n(American Medical Ass’n, 4\nth\n Ed., 1993) (the AMA Guides). The Commission may assess its own \nimpairment rating rather than rely solely upon determination of the validity of ratings assigned by \nphysicians. Main v. McGehee Metals, supra. \n\nJulie Revels, AWCC No. H108811 \n \n8 \n \n  The sole question for determination in this case is whether the claimant is entitled to the 11% \nBAW impairment rating Dr. Young consistently maintained she was entitled to based upon his \nreview of the FCE and subsequently issued reports, his own examinations of her, and the applicable \nAMA  Guides.  Of  course,  the  respondents  accepted  and  paid  a  5%  BAW  impairment  rating. \nTherefore, at issue is 6% BAW – i.e., the difference between Dr. Young’s 11% BAW impairment \nrating and the 5% BAW rating the respondents accepted. \n  This was a well-litigated case on an interesting issue by two (2) excellent, highly experienced \nattorneys that turns on rather subtle evidentiary considerations. All three (3) of the witnesses who \ntestified – the claimant, Mr. Garretson and Mr. Byrd – were all articulate and highly credible. Based \non the applicable law and the totality of the evidence, I am compelled to find the claimant has in \nfact met her burden of proof in demonstrating she is entitled to a permanent anatomical impairment \nrating of 11% BAW – i.e., she is entitled to additional PPD benefits based on an additional 6% \nBAW impairment rating, the difference between Dr. Young’s 11% BAW impairment rating and the \n5% BAW impairment rating the respondents accepted, for the following reasons. \n  First, again, I found all three (3) witnesses to be articulate and highly credible. I found the \nclaimant’s testimony concerning her demonstrable, objective physical limitations and restrictions \nresulting from her admittedly compensable right shoulder injury to be credible and reasonable, and \nnot exaggerated, as apparently did Dr. Young. This is especially true when considered in light of \nthe reliable FCE results, Dr. Young’s physical examinations, and the applicable AMA Guides. \n  Second, I find the record is devoid of sufficient evidence to demonstrate that Dr. Young’s \nopinion the claimant is entitled to an 11% BAW permanent anatomical impairment rating is not in \nfact based on objective factors. Clearly, as the claimant’s treating and operating orthopedic surgeon \nDr. Young is a medical professional and is in the very best position to determine the true and \n\nJulie Revels, AWCC No. H108811 \n \n9 \n \naccurate  extent  of the  claimant’s  permanent  anatomical  impairment. After  having  treated  the \nclaimant, operated on her; examined her on multiple occasions; reviewed the FCE results and \nsubsequent related reports, and thereafter conducted his own physical examinations of her, Dr. \nYoung opined the claimant is entitled to an 11% BAW impairment rating based on the applicable \nAMA Guides. The respondents apparently argue that Dr. Young based his 11% BAW impairment \nrating at least in part on subjective factors such as passive, rather than active, ROM tests, and/or \nthe claimant’s own subjective reports of what she can and cannot do/her physical limitations and/or \nrestrictions. See, Hayes v. Wal-Mart Stores, Inc., supra. But, significantly, the record is devoid of \nsufficient evidence to support this argument. I did not notice in any of Dr. Young’s relevant reports \nthat he based his impairment rating or any part thereof on active ROM or on any other notable \nsubjective factor(s). Therefore, when Dr. Young states he based his 11% impairment rating on the \nAMA  Guides, without clear, demonstrable evidence to the  contrary it  would constitute sheer \nspeculation and conjecture for me to state and find otherwise. As in any case, such speculation and \nconjecture would be unwarranted, and improper. \n  Therefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed March 7, 2024, which the \nparties affirmed on the record at the hearing, hereby are accepted as facts. \n \n2. The  claimant  has  met  her  burden  of  proof  in  demonstrating  she  is  entitled  to  an \nimpairment rating of 11% BAW – i.e., to additional PPD benefits based on the 6% \nBAW difference in the two (2) subject ratings.  \n \n3. The claimant’s attorney is entitled to the maximum statutory attorney’s fees based \non  the  additional  PPD  benefits  awarded  for  the  additional 6%  BAW permanent \nanatomical impairment rating determined herein. \n \n4. The respondents shall deduct the claimant’s portion of the attorney’s fee from the \nbenefits awarded and shall pay the claimant’s attorney’s entire fee via a separate \ncheck made out solely to the claimant’s attorney. \n\nJulie Revels, AWCC No. H108811 \n \n10 \n \nAWARD \n \n The respondents hereby are directed to pay benefits in accordance with the “Findings of \nFact and Conclusions of Law” set forth above. All accrued sums shall be paid in lump sum without \ndiscount, and this award shall earn interest at the legal rate until paid pursuant to Ark. Code Ann. \nSection 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 \n(Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 (Ark. App. \n1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004).  \n If they have not already done so, the respondents shall pay the court reporter’s fee within \n20 days of their receipt of this opinion.  \n IT IS SO ORDERED. \n \n \n                                   Mike Pickens \n       Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":19761,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108811 JULIE REVELS, EMPLOYEE CLAIMANT MAGNET COVE ELEMENTARY SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASS’N. WORKERS’ COMPENSATION TRUST/ARKANSAS SCHOOL BDS. ASS’N, INS. CARRIER/TPA RESPONDENT OPINION FILED JULY 16, 2024 Hearing conducted before...","outcome":"granted","outcomeKeywords":["affirmed:1","granted:4"],"injuryKeywords":["shoulder","rotator cuff"],"fetchedAt":"2026-05-19T22:51:28.836Z"},{"id":"alj-H204642-2024-07-15","awccNumber":"H204642","decisionDate":"2024-07-15","decisionYear":2024,"opinionType":"alj","claimantName":"Margaret Freeman","employerName":null,"title":"FREEMAN VS. MILLER COUNTY JUDGEAWCC# H204642July 15, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FREEMAN_MARGARET_H204642_20240715.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FREEMAN_MARGARET_H204642_20240715.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204642   \n \nMARGARET ANNETTE FREEMAN, \nEMPLOYEE                                    CLAIMANT \n \nMILLER COUNTY JUDGE,  \nEMPLOYER                                                     RESPONDENT \n \nASS’N OF ARKANSAS COUNTIES/ \nAAC RISK MG’T SERVICES, INC./ \nINS. CARRIER/TPA                                         RESPONDENT \n \nOPINION AND ORDER FILED JULY 15, 2024, GRANTING THE RESPONDENTS’ \nMOTION FOR AN INDEPENDENT MEDICAL EVALUATION (IME)/SECOND \nOPINION WITH DR. CARLOS ROMAN \n \nIn lieu of a hearing, and upon the parties’ mutual agreement, the disputed issue was submitted for \ndecision to the Arkansas Workers’ Compensation Commission (the Commission), Administrative \nLaw Judge (ALJ) Mike Pickens, based on the record. \n \nThe claimant is represented by the Honorable Neal L. Hart, Hart Law Firm, L.L.P., Little Rock, \nPulaski County, Arkansas. \n \nThe respondents are represented by the Honorable Carol L. Worley and Jarrod Parrish, Worley, \nWood & Parrish, P.A., Little Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \n \n An  amended  prehearing  order  was  filed  in  this  claim  on May  3,  2024. Pursuant  to  their \nmutual agreement, in lieu of a hearing the parties submitted the threshold issue as to whether the \nrespondents are entitled to an Independent Medical Evaluation (IME) for the purposes set forth in \nthe “Issues To Be Litigated...” section, infra and, if so, with what medical provider, for decision \non the record. (Commission Exhibit 1). \n If the parties are able to agree on a physician to conduct the IME, they shall advise the ALJ \naccordingly, and so stipulate in their initial briefs. If they are unable to agree on an IME physician, \nthe parties shall advise the ALJ accordingly in their initial briefs; and each party shall provide the \nnames,  qualifications,  addresses  and  any  and  all  other  available  contact  information  of  two  (2) \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n2 \nphysicians they would recommend for the IME, should the ALJ find an IME is appropriate.  \n In the amended prehearing order filed May 3, 2024, the parties agreed to the following \nstipulations:   \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed at  all  relevant  times \nincluding June 15, 2022, when the claimant sustained an admittedly compensable \ninjury to her left ankle, left foot, left leg, and right knee for which the respondents \npaid medical and indemnity benefits.                                                                                \n \n3.  The claimant’s average weekly wage (AWW) was $727.38, which is sufficient to \nentitle her to weekly compensation rates of $485.00 for temporary total disability \n(TTD), and $364.00 for permanent partial disability (PPD) benefits. \n \n4.        The  parties  hereby  specifically  reserve  the  issue  of  controversion,  as  well  as  any   \nand all issues not specifically litigated herein. \n \n4. The  claimant’s  treating physician,  Dr.  Ardoin,  opined  she  reached  maximum \nmedical improvement (MMI) on January 18, 2024, and assigned her a permanent \nanatomical  impairment  rating  of  15%  to  the  left  lower  extremity,  which  the \nrespondents have accepted and are in the process of paying. \n \n5.  The  parties  specifically  reserve  any  and  all  other  issues  for  future  determination \nand/or hearing.  \n(Comms’n Ex. 1 at 2). Pursuant to the parties’ mutual agreement, the sole issue submitted for \ndecision on the record was: \n1. Whether the respondents are entitled to an IME concerning whether the spinal cord \nstimulator   Dr.   Frankowski   has   recommended   is   related   to,   and   constitutes \nreasonably necessary treatment for, her compensable injuries. \n \n2. The  parties  specifically  reserve  any  and  all  other  issues  for  future  determination \nand/or litigation. \n \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n3 \n(Comms’n Ex. 1 at 3). \n \n The claimant contends she was involved in an admittedly compensable work accident on \nJune 15, 2022, in which she sustained injuries to multiple body parts, including her left foot, left \nankle, left leg, and right knee. Thereafter, Dr. Ardoin performed surgery on her left ankle, and the \nclaimant contends she now suffers from residual, documented nerve damage, neuralgia, neuritis, \nleft lower leg weakness, left foot drop, possible complex regional pain syndrome, and neuropathic \npain. Dr. Gary Frankowski, a pain management specialist the claimant contends the respondents \nchose, has opined she requires additional medical treatment in the form of a spinal cord stimulator. \nThe  claimant  contends  Dr.  Frankowski’s  recommendation  constitutes  reasonably  necessary \nmedical care related to her compensable injuries and, therefore, the respondents should be required \nto provide it. The claimant states she has a scheduled injury. She contends the respondents’ chosen \nphysician has recommended additional medical care intended to improve her condition, and that \nshe is not currently working as she is unable to work due to her compensable injuries. The claimant \nfurther contends that since the respondents have to date directed all her medical care, on these facts \ncompelling her to see yet another doctor for an IME is not reasonably necessary and, therefore, the \nrespondents’ request should be denied. The claimant contends her attorney is entitled to payment \nof a statutory fee on any and all controverted indemnity benefits; and she respectfully reserves the \nright to  amend  and/or  otherwise  alter  the  above contentions  as  discovery progresses.  All  other \npotential issues except the specific threshold issue concerning the respondents’ entitlement to an \nIME are  expressly  reserved  for  litigation  at  a  later  date  including,  but  certainly  not  limited  to, \nissues  involving  permanent  impairment. The  claimant  also  specifically  reserves  the  issue  of \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n4 \ncontroversion,  as  well  as  any  and  all  issues  not  specifically  addressed  herein,  for  future \ndetermination  and/or  litigation. This  is  a  claim  for  additional compensation,  and the  claimant \nhereby renews  her  request  for  an  award  of  any  and  all  benefits  to  which  she  may  be  entitled \npursuant to the Arkansas Workers' Compensation Act (the Act). (Comms’n Ex. 1 at 3-4). \n The respondents contend that Dr. Frankowski is continuing to treat the claimant for pain \nmanagement,  and  he  has  “suggested”  a  spinal  cord  stimulator  “may”  be  appropriate.  The \nrespondents are simply requesting an IME, which they contend is in essence a second opinion in \norder to determine whether this invasive surgical recommendation is appropriate for treatment of \nthe claimant’s compensable injuries. The  respondents  further  contend  the  ALJ  has  the  statutory \nauthority to grant their motion for an IME/second opinion, especially based on these facts given \nthe invasive nature and arguably ineffective clinical efficacy of Dr. Frankowski’s recommendation \nherein. The respondents contend they have not controverted any medical or indemnity benefits in \nthis claim to date, and specifically reserve this and any and all other issues not specifically litigated \nherein for future determination and/or litigation. (Comms’n Ex. 1 at 4). \n The record shall include the Amended Prehearing Order filed May 3, 2024 (Commission’s \nExhibit 1); the claimant’s brief and attached medical exhibit (Claimant’s Exhibit 1 and 1A, \nrespectively); and the respondents’ brief and attached curriculum vitae (CV) of Dr. Carlos Roman \n(Respondents’ Exhibit 1 and 1A, respectively). \nSTATEMENT OF THE CASE \n In her brief the claimant outlines her injury and treatment history and, in essence, argues \nthe respondents’ have directed all the claimant’s care since her admittedly compensable left ankle \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n5 \ninjury of June 15, 2022; that Dr. Frankowski has diagnosed the claimant with a nerve injury and \nhas recommended the surgical insertion of a spinal cord stimulator for treatment of the claimant’s \ncontinued complaints of pain and weakness and, therefore, adding yet another opinion to the record \nin the form of an IME/second from Dr. Carlos Roman is not reasonably necessary on these facts. \nIn  the  alternative – and  without  conceding  the  aforementioned  affirmative  contention – the \nclaimant argues that if the ALJ believes an IME/second opinion is reasonably necessary on these \nfacts,  either  Dr.  Brent  Walker  of  OrthArkansas,  or  Dr.  Jonathan  Goree  of  the  University  of \nArkansas  for  Medical  Sciences  would  be  better  qualified  than  Dr.  Roman  to  provide  such  an \nIME/second opinion on these facts. (CX at 1-8).  \n The respondents counter citing relevant Arkansas statutes and case law, and argue that: (1) \nan IME/second opinion is reasonably necessary in this claims to determine whether the claimant’s \ncurrent complaints are related to the compensable injury, as well as to determine the likely efficacy \nof the spinal cord stimulator Dr. Frankowski has offered in what appears to be a last-attempt/effort \nto  relieve  the  claimant’s  continued  complaints  of  pain  and  weakness;  (2) Dr.  Frankowski’s \nrecommendation that the claimant undergo surgery for the insertion of a spinal cord stimulator to \ntreat “causalgia” is not based on an objective medical diagnosis; and (3) the fact the respondents’ \nhave directed the claimant’s care does not preclude the an IME/second opinion to address  the \naforementioned medical issues. (Responds’ Ex. 1 at 1-9).        \nDISCUSSION \n It is well-settled in Arkansas workers’ compensation law that the Commission has broad \ndiscretionary authority to order an IME/second opinion. Ark. Code Ann. §11-9-511 (2024 Lexis \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n6 \nReplacement) states: \n(a) An injured employee claiming to be entitled to compensation shall \nsubmit  to  such  physical  examination  and  treatment  by  another \nqualified  physician,  designated  or  approved  by  the  Workers’ \nCompensation  Commission,  as  the  Commission may  require  from \ntime to time if reasonable and necessary. \n \n(b) The  places  of  examination  and  treatment  shall  be  reasonably \nconvenient for the employee.  \n \nMoreover, Ark.  Code  Ann. Section  11-9-811  (2024  Lexis  Repl.) prescribes  as \nfollows:  \nUpon its own initiative at any time where compensation payments are being \nmade without an award, the Workers’ Compensation Commission may and \nin any case where the right to compensation has been controverted or where \npayments  of compensation  have  been  suspended,  or  where  an  employer \nseeks to suspend payments made under an award o, or on an application of \nan  interested  party,  the commission  shall  make  such  investigation,  cause \nsuch  medical  examination  to  be made,  hold  such  hearings,  and  take  such \nfurther  action  as  the  commission  deems  proper  for  the  protection  of  the \nrights of all the parties. \n \nAnd see, Plants v. Townsend Curtner Lumber Co., 247 Ark. 824, 448 S.W.2d 349 (1969). (Note: \nAct 796 of 1993 did not amend the plain language or change the clear meaning of this provision \nand the cases decided under it prior to the enactment of Act 796.). \n Based on the relevant medical evidence in the record, it is abundantly clear the ALJ has \nthe broad discretionary authority pursuant to the aforementioned statutes to both grant a party’s \nrequest  for  an  IME/second  opinion  when  such  an  IME/second  opinion  is reasonably necessary, \nand/or is proper in order to protect the parties’ rights. Here, I find an IME/second opinion by an \nindependent (i.e., a physician who is not so directly invested in the patient’s care so as to be \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n7 \nunlikely and/or  unable  to  render  an  opinion  based  on  objective  medical  facts  and  evidence  as \nopposed to subjective factors), qualified physician specialized in pain management treatment. \n First, the respondents are correct in their argument that the fact they have the statutory right \nto direct the claimant’s medical care – subject, of course, to the claimant’s right to a one (1)-time-\nonly  change  of physician  examination  at  the  respondents’ expense – undoubtedly  is  legally \naccurate, and is a settled holding in Arkansas workers’ compensation law. I do not find the fact \nDr.  Frankowski  is  the  physician  who  has  recommended  the  surgical  insertion  of  a  spinal  cord \nstimulator into the claimant’s body – apparently  as  a  last-ditch, “hail-Mary” effort to treat the \nclaimant’s  continued  complaints  of  pain  and  weakness  based  on  a  rather  vague  diagnosis \napparently devoid of sufficient objective medical evidence – is dispositive on these facts. \n Second, in this case in order to protect the rights of both parties herein – and particularly \nto  protect  the  claimant  against  the  possibly  unnecessary  risks  of  surgery  to  insert  a  spinal  cord \nstimulator into her body that has not as yet been demonstrated to more likely than not be effective \nin order to treat her continued complaints of pain and weakness. Indeed, even the origin/diagnosis \nof the cause of the claimant’s complaints appears to be medically unclear from the record as \ndeveloped as of this date. An, similarly, it is likewise unclear as to the probability of the efficacy \nof a spinal cord stimulator. The claimant’s inherent right to reasonably safe and effective medical \ncare  is  not  well-served  by  surgical  intervention  unless  such  surgical  intervention  is  more  likely \nthan not to effectively treat the underlying condition. And, of course, the claimant’s rights must be \nconsidered in light of the respondents’ right to pay for only such treatment that is related to and \nreasonably necessary for treatment of the compensable injury. Proposed treatment that is risky or \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n8 \nexperimental, or based on insufficient medical evidence demonstrating it is more likely than not \nto be effective in treating the claimant’s underlying condition would appear to be an unnecessary \nrisk for the claimant, and an unnecessary expense for the respondents. Here, on these facts, and \ndespite the claimant’s medical tests and treatment to date, we have more unanswered medical \nquestions than we have answers to those questions. Consequently, an IME/second opinion is both \nreasonably  necessary  and  proper  to  protect  the  rights  of  both  the  claimant  and  the  respondents \nbased on the aforementioned statutes.  \n       It is imminently fair and reasonable to obtain a truly independent IME/second opinion to \nensure  the  complaints  the  proposed  spinal  cord  stimulator  is  intended  to  treat  are  related  to  the \nclaimant’s  compensable  right  ankle  injury,  and  that  the  procedure – which  is  not  without \nsignificant risks, including but not limited to the well-known risks of infection, and having to be \nremoved via a separate surgical procedure if it proves to be ineffective in alleviating the claimant’s \ncomplaints – is reasonably necessary for treatment of the claimant’s continued complaints.   \n Third,  while  I  appreciate  the  claimant’s  suggestion  of  physicians  to  conduct  the \nIME/second opinion, I am unfamiliar with these physicians. I am, however, well-familiar – as is \nthe  Commission – with  Dr.  Carlos  Roman,  his  professionalism  and  expertise.  Consequently,  in \nthis case and on these particular facts, I find Dr. Roman is the most appropriate pain management \nspecialist/physician to provide an IME/second opinion in this case.         \nTherefore, for all the aforementioned reasons I hereby make the following findings of fact \nand conclusions of law: \n \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n9 \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction over this claim. \n2. The stipulations to which the parties agreed in the amended prehearing order filed May 3, \n2024, hereby are accepted as facts. \n  \n3. Pursuant to the Commission’s authority to order an IME(s)/second opinion as set forth in \nArk. Code Ann. Sections 11-9-511 and 11-9-811, supra, I find an IME/second opinion in \nthis claim to be both reasonably necessary and proper in order to protect the rights of both \nparties herein for the reasons set forth, supra.  \n \n4. I hereby grant the respondents’ motion for an IME/second opinion, and find that Dr. Carlos \nRoman – a pain medicine specialist well-known to this Commission – is the most qualified, \nindependent physician to conduct the IME on the facts of this particular case. Dr. Roman \nhas both the expertise and independence and, therefore, is in the very best position on these \nparticular facts to determine both the risks associated with as well as the probable efficacy \nof the surgical insertion of a spinal cord stimulator to treat the claimant’s continued pain \ncomplaints in her left ankle/left lower extremity. \n \n5. The parties shall cooperate in the scheduling of this IME/second opinion with Dr. Roman. \nMoreover, this IME/second opinion shall in all respects be conducted in accordance with \nand governed by the applicable provisions of Arkansas law set forth above in Paragraph 3. \n \n6.  The parties shall submit a copy of this opinion and IME order to Dr. Roman, along with \nany  and  all  relevant  medical  records,  as  well  as  both  the  reports  and  the  original \nfilms/results,  etc.,  of  any  relevant  diagnostic  tests, and any  and  all other  relevant \ndocuments, if any, in order that Dr. Roman shall have the benefit of any and all available \nmedical records and findings in conducting his independent records review and physical \nexamination. \n \n7. I specifically find that the case of Burkett v. Exxon Tiger Mart, Inc., 2009 Ark. App. 93, \n304 S.W.3d 2 (Ark. App. 2009) is inapplicable to the facts of this case, and does not prevent \nthe ALJ from appointing an IME on these facts. In Burkett, the ALJ ordered an IME after \nthe parties already had litigated the issues of compensability and the claimant’s entitlement \nto additional benefits, had rested their respective cases, and the record had been closed. \nThat  clearly  is  not  the  case  here. As  the  record  conclusively  demonstrates,  both  the \nclaimant’s and respondents’ were given due  and  proper notice and  an  opportunity  to  be \nheard on the sole issue in dispute herein.  \n \n \n \n\nMargaret A. Freeman, AWCC No. H204642 \n \n \n \n10 \nIT IS SO ORDERED. \n \n \n       Mike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":18906,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204642 MARGARET ANNETTE FREEMAN, EMPLOYEE CLAIMANT MILLER COUNTY JUDGE, EMPLOYER RESPONDENT ASS’N OF ARKANSAS COUNTIES/ AAC RISK MG’T SERVICES, INC./ INS. CARRIER/TPA RESPONDENT OPINION AND ORDER FILED JULY 15, 2024, GRANTING THE RESPONDENTS’ MOTION FOR AN...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["ankle","knee"],"fetchedAt":"2026-05-19T22:51:20.496Z"},{"id":"alj-H204222-2024-07-12","awccNumber":"H204222","decisionDate":"2024-07-12","decisionYear":2024,"opinionType":"alj","claimantName":"Maria Lopez","employerName":null,"title":"LOPEZ VS. CHENAL PKWY. SHELL, INC.AWCC# H204222July 12, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Lopez_Maria_H204222_20240712.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Lopez_Maria_H204222_20240712.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204222 \n \n \nMARIA G. LOPEZ, EMPLOYEE CLAIMANT \n \nCHENAL PKWY. SHELL, INC., \n EMPLOYER RESPONDENT \n \nFIRSTCOMP INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JULY 12, 2024 \n \nHearing  before Chief Administrative  Law  Judge  O.  Milton  Fine  II  on July  11, \n2024, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on the Motion to Dismiss filed \nby  Respondents.    A  hearing  on  the  motion  was  conducted  on July  11,  2024, in \nLittle  Rock,  Arkansas.   Claimant,  who  is pro se,  failed to  appear.   Respondents \nwere  represented  at  the  hearing  by Mr.  Randy  P.  Murphy,  Attorney  at  Law,  of \nLittle  Rock,  Arkansas.   In  order  to  address  adequately  this  matter  under  Ark. \nCode Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing  \n.  .  .  in  a  manner  which  best  ascertains  the rights of the parties”), and without \nobjection,  I  have  blue-backed to the record documents from the Commission’s \nfile  on  the  claim,  consisting  of 29 pages.    In  accordance  with Sapp  v.  Tyson \nFoods, Inc.,  2010 Ark.  App.  517,  ___ S.W.3d  ___,  these  documents  have  been \n\nLOPEZ – H204222 \n \n2 \nserved on the parties in conjunction with this opinion.  Also, the transcript of the \nFebruary 22, 2024, hearing in this matter, consisting of 16 numbered pages plus \nthree pages of exhibits, has been incorporated herein by reference. \n The evidence reflects that per the First Report of Injury or Illness filed on \nAugust  2, 2022, Claimant  purportedly suffered  an  injury to  her  left  wrist at  work \non April 15, 2022, when a customer closed a door on her hand.  According to the \nForm AR-2 that was filed on August 2, 2022, Respondents accepted the claim as \na medical-only one. \n On June 9, 2022, Claimant filed a Form AR-C, requesting the full range of \nadditional  benefits,  and  stated  that her  left  wrist  was  broken  as  a  result  of  an \nassault by a customer.  Respondents’ counsel made his entry of appearance on \nJune 17, 2022. \n On January 26, 2023, Mark Alan Peoples entered his appearance before \nthe Commission on Claimant’s behalf, and requested that she be granted her \none-time  change  of  physician.    In  an  order  entered  by Interim Medical  Cost \nContainment Division Administrator Mark McGuire on March 2, 2023, Claimant’s \nauthorized  treating  physician  was  changed  from  Brian  Norton,  M.D.,  to  Barry \nBaskin,  M.D.;  and  she  was  scheduled  for  a  visit  with  the  latter  for  March  14, \n2023. \n On July 18, 2023, Peoples moved to withdraw from the case.  In an order \nentered  on  July  28,  2023,  the  Full  Commission  granted  the  motion  pursuant  to \nAWCC Advisory 2003-2. \n\nLOPEZ – H204222 \n \n3 \n No further action on the claim took place until November 6, 2023.  On that \ndate, Respondents filed the instant Motion to Dismiss.  Therein, they argued that \ndismissal  was  warranted  under Ark.  Code  Ann. § 11-9-702 (Repl.  2012)  and \nAWCC R. 099.13 because Claimant had not sought a hearing on her claim.  On \nFebruary  22,  2024, the  hearing  on  the  motion  took  place.   Claimant appeared, \nobjected  to  dismissal, and  requested a  hearing  on  her  claim.  Based  on  this, \nRespondents asked that their motion be held in abeyance.  This was granted.  I \ninformed them that I would hold the file in my office for 30 days to allow them to \npursue an amicable resolution of the matter. \n However,  because  no  joint  petition  was  filed  during  that  timeframe,  my \noffice   issued   prehearing   questionnaires   to   the   parties   on   April   23,   2024.  \nRespondents  filed  a  timely  response  thereto  on  May  24,  2024.   However, \nClaimant  failed  to  respond.   While  the  questionnaire  was  sent  to  Claimant  via \ncertified   and   first-class   mail,   the   certified   mailing   was   returned   to   the \nCommission,  unclaimed,  on  May  20,  2023.    The  first-class  mailing  was  not \nreturned.   On  May  31,  2024,  Respondents  renewed  their  Motion  to  Dismiss.  \nThat same day, I reset the hearing on the motion for July 11, 2024, at 10:00 a.m. \nThe  Notice  of  Hearing,  like  all other correspondence in  this  matter,  was  sent  to \nClaimant at the address she confirmed in her February 22, 2024 testimony.  She \nclaimed the certified mailing on June 5, 2024; and the first-class mailing was not \nreturned as undeliverable.  The hearing on the Motion to Dismiss proceeded as \nscheduled on July  11,  2024.   Again, Claimant failed  to appear.    Respondents \n\nLOPEZ – H204222 \n \n4 \nappeared  through  counsel  and  argued  for  dismissal  of  the  action  under the \naforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the July 11, \n2024, hearing thereon pursuant to AWCC R. 099.13. \n3. Respondents have proven by a preponderance of the evidence that \nClaimant has failed to prosecute her claim under AWCC R. 099.13. \n4. Respondents’ Motion to Dismiss should be, and hereby is, granted. \n5. This claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  (Emphasis added) \n\nLOPEZ – H204222 \n \n5 \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nclaim–by a  preponderance  of  the evidence.   This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin pursuit of it—including appearing at the July 11, 2024, hearing to argue against \nits  dismissal—since she  appeared  at  the  first  hearing  thereon  on  February  22, \n2024.  Thus, the evidence preponderates that dismissal is warranted under Rule \n13.  Because of this finding, the application of Ark. Code Ann. § 11-9-702 (Repl. \n2012) is moot and will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  with  prejudice. But  based  on \n\nLOPEZ – H204222 \n \n6 \nthe  foregoing, I find  that  the  dismissal  of  this  claim  should  be  and  hereby  is \nentered without prejudice.\n1\n \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8329,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H204222 MARIA G. LOPEZ, EMPLOYEE CLAIMANT CHENAL PKWY. SHELL, INC., EMPLOYER RESPONDENT FIRSTCOMP INS. CO., CARRIER RESPONDENT OPINION FILED JULY 12, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 11, 2024, in Little Rock, Pulask...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T22:51:18.339Z"},{"id":"alj-H302021-2024-07-11","awccNumber":"H302021","decisionDate":"2024-07-11","decisionYear":2024,"opinionType":"alj","claimantName":"Paula Hollingsworth","employerName":null,"title":"HOLLINGSWORTH VS. CIRCLE OF LIFE HOSPICE CORPORATIONAWCC# H302021July 11, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HOLLINGSWORTH_PAULA_H302021_20240711.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOLLINGSWORTH_PAULA_H302021_20240711.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H302021 \n \nPAULA HOLLINGSWORTH, EMPLOYEE   CLAIMANT \n \nCIRCLE OF LIFE HOSPICE CORPORATION, EMPLOYER RESPONDENT \n \nMIDWEST INSURANCE COMPANY INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED JULY 11, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by MICHAEL C. STILES, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  April 26, 2023, claimant filed Form AR-C, alleging a compensable injury on December \n31, 2022.   Claimant was represented at the time by Lauri K. Thomas,  who filed a Motion to Withdraw \non December 22, 2023 and was allowed to withdraw on January 9, 2024.  No other attorney entered \nan appearance on claimant’s behalf.     \nOn May 3, 2024, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed her Form AR-C with the Commission, but she had not made a request \nfor a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for June 20, \n2024.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice was delivered to claimant on May 14, 2024.  Claimant did not \nrespond to Respondent’s motion and did not appear in person at the hearing on June 20, 2024.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \n\nHollingsworth-H302021 \n \n2 \n \nof response and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2208,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302021 PAULA HOLLINGSWORTH, EMPLOYEE CLAIMANT CIRCLE OF LIFE HOSPICE CORPORATION, EMPLOYER RESPONDENT MIDWEST INSURANCE COMPANY INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED JULY 11, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Spring...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:51:09.899Z"},{"id":"alj-H307355-2024-07-11","awccNumber":"H307355","decisionDate":"2024-07-11","decisionYear":2024,"opinionType":"alj","claimantName":"John Parker","employerName":null,"title":"PARKER VS. BALDWIN & SHELL CONSTR. CO.AWCC# H307355July 11, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Parker_John_H307355_20240711.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Parker_John_H307355_20240711.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307355 \n \n \nJOHN G. PARKER, EMPLOYEE CLAIMANT \n \nBALDWIN & SHELL CONSTR. CO., \n EMPLOYER RESPONDENT \n \nOLD REPUBLIC INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JULY 11, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on July 11, 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Eric Newkirk, Attorney at Law, North Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on July 11, 2024, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    Admitted  into \nevidence without objection were Commission Exhibit 1 and Respondents’ Exhibit \n1,  forms,  pleadings,  and  correspondence  related  to  this  claim,  consisting  of 16 \nand 13 pages, respectively. \n\nPARKER – H307355 \n2 \n \n The record reveals the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on November 17,  2023,  reflect \nthat Claimant purportedly suffered an injury to his upper extremity at work on July \n4,  2023.   Per  the  Form  AR-2 that  was  also filed  on November 17,  2023, \nRespondents denied  the  claim,  asserting  that the injury took place at Claimant’s \nhome. \n On November 9, 2023, Claimant filed a Form AR-C, alleging that while his \nalleged  right  arm  injury  occurred  while  he  was  moving  a  tree  branch,  it  was  the \nculmination of an injurious process involving his hanging of solid core doors over \na  period  of  time.  No  hearing  request  accompanied  this  filing.   Respondents’ \ncounsel entered his appearance on May 7, 2024. \n On May 9, 2024, Respondents filed the instant Motion to Dismiss and brief \nin support thereof under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 (Repl. \n2012),  contending  that no activity has  taken place on the  case  since the  filing  of \nthe  Form  AR-C.  On May  13,  2024, my  office wrote  Claimant,  requesting  a \nresponse  to  the  motion  within 20 days.   This  correspondence  was  sent  by  both \ncertified and first-class mail to the North Little Rock address for Claimant listed in \nthe  file  and  on  his Form  AR-C.   The  certified  letter was  returned  to  the \nCommission,  undelivered, on June 24,  2024;  but the  first-class  correspondence \nwas not returned to the  Commission.  However,  no  response  by  Claimant  to the \nmotion was forthcoming. \n\nPARKER – H307355 \n3 \n \n On June  7,  2024, a hearing on Respondents’ motion was scheduled for \nJuly  11,  2024, at 10:30 a.m.  at  the Commission in Little  Rock.    The Notice  of \nHearing was sent to Claimant by certified and first-class mail to the same address \nas  before.  In  this  instance, the  United  States  Postal  Service  could  not  verify \nwhether the certified letter had been claimed.  But as before, the one sent via first \nclass was not returned. \n The hearing proceeded as scheduled on July 11, 2024.  Claimant failed to \nappear  at  the  hearing.    But  Respondents  appeared  through  counsel  and  argued \nfor dismissal under the provisions cited above. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute this claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \n\nPARKER – H307355 \n4 \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction  in  pursuit  of  his claim  since the  filing  of his Form  AR-C  on November  9, \n2023.  Moreover, he failed to appear at the hearing to argue against dismissal of \nthe  claim,  despite  the  evidence  showing  that  both  he  and  Respondents  were \nprovided  reasonable  notice  of  the  Motion  to Dismiss  and  of  the  hearing  thereon.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause of this finding, it is unnecessary to address the application of § 11-9-702. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).   The Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nPARKER – H307355 \n5 \n \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":6252,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H307355 JOHN G. PARKER, EMPLOYEE CLAIMANT BALDWIN & SHELL CONSTR. CO., EMPLOYER RESPONDENT OLD REPUBLIC INS. CO., CARRIER RESPONDENT OPINION FILED JULY 11, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 11, 2024, in Little Rock, ...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:51:12.056Z"},{"id":"alj-H006753-2024-07-11","awccNumber":"H006753","decisionDate":"2024-07-11","decisionYear":2024,"opinionType":"alj","claimantName":"Jacob Shotzman","employerName":null,"title":"SHOTZMAN VS. WILBERT FUNERAL SERVICES INC.AWCC# H006753July 11, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SHOTZMAN_JACOB_H006753_20240711.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHOTZMAN_JACOB_H006753_20240711.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n \n CLAIM NO. H006753 \n \n \nJACOB M. SHOTZMAN, EMPLOYEE CLAIMANT \n \nWILBERT FUNERAL SERVICES INC., EMPLOYER RESPONDENT \n \nGALLAGHER BASSETT SERVICES INC., CARRIER RESPONDENT \n \n \n OPINION FILED JULY 11, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On June 5, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas. A \npre-hearing  conference  was  conducted  on April  4,  2024, and  a  pre-hearing  order  was  filed  on  that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.  All prior Opinions are res judicata. \n            3. The employee/employer/carrier relationship existed on August 29, 2020.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \n\nShotzman-H006753 \n2 \n \nwere limited to the following: \n1. Whether  claimant  is  entitled  to  additional  medical  treatment  as  recommended  by Dr.          \n Blankenship. \nAll other issues are reserved by the parties. \nThe  claimant  contends  that “The  surgery recommended by  Dr. Blankenship represents \nreasonably necessary medical treatment for his compensable injury and the expense of such treatment \nis the liability of the respondents under Ark. Code Ann. § 11-9-508.” \nThe respondents contend that “All  appropriate  benefits  are  being  paid  with  regard  to  this \nmatter. The recommended surgery did not pass precertification and is not reasonable and necessary \nassociated with claimant’s injury.”   \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on April \n4, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.  Claimant has met his burden of proof by a preponderance of evidence that he is entitled to \nadditional medical treatment from Dr. James Blankenship for his back injury.  \n \n FACTUAL BACKGROUND \n This matter was previously before this court for a hearing on June 1, 2021. An opinion was \nrendered on July 1, 2021, in which I found, among other things, that claimant had met his burden of \n\nShotzman-H006753 \n3 \n \n \nproof  that  he  was  entitled  to  additional  medical  benefits  from  Dr. Blankenship for  his lower  back \ninjury. That opinion was appealed to the Full Commission, where it was affirmed.  The parties have \nstipulated that the prior opinions in this case are res judicata for this hearing. \nHEARING TESTIMONY \n \n Claimant was the only witness called to testify.  He explained that after the Full Commission \nawarded  him  additional  medical  benefits, Dr.  Blankenship  operated  on  his  back. He  then  had \ninjections  and  physical  therapy  while  remaining  on  medication  for  his  back. A  second  surgery  was \nperformed and claimant underwent  a  similar  course  of  post-surgery  care.   That  surgery  was  not  as \nsuccessful as the first one, as claimant has more pain now than he did before the first surgery, and \nreports numbness in his right thigh. Claimant requested a third surgery so he could get some relief.  \n On  cross-examination, claimant answered “yes and no,” when asked if the second surgery \nhelped him in any way. He explained that his issues were in a different location now, but still in his \nlower back and down into his legs. Claimant did not recall Dr. Blankenship relating to him what was \nin the medical notes from the September 21, 2023, visit that expressed uncertainty about the benefits \nof another surgery. He understood the scar tissue on the right side of his back presented a potential \nproblem in how the surgery would be performed. Claimant was willing to see another physician at the \nTexas Back Institute in Plano, Texas, so long as all his expenses were paid before the trip.\n1\n   \n During questioning from the court, claimant clarified that the first surgery was done on the \nL5-S1 area of his back and helped him, but the second was a fusion at L4-L5 in which a BridgePoint \nclamp was inserted. His understanding is that the recommended third surgery is to “revamp the second \nsurgery where the artificial disc is sticking into my psoas muscle.”     \n \n \n1\n There was no pending motion for an independent medical evaluation; the parties are free to cooperate in such an \nexamination. \n\nShotzman-H006753 \n4 \n \n \nREVIEW OF THE EXHIBITS \n  \n A chronological review of the records submitted by the parties yields the best understanding \nof what information is provided therein.   \n Claimant submitted records from  February  14,  2023, through  February  4,  2024, from  Dr. \nBlankenship and other facilities that treated him as part of Dr. Blankenship’s care. Claimant’s \ntestimony relating the difficulties he has had after the second surgery is supported by those records; \nhe was given physical therapy and a facet injection to try to address the back pain. Dr. Blankenship \ninitially expressed some uncertainty as how to best address claimant’s post-surgical issues (CL.X.58), \nbut his February 4, 2024, record said that surgery was needed to fix the implant that had extruded into \nthe paraspinous muscles on the right side. Dr. Blankenship outlined the options he was considering \nto correct the implant, and conceded that if one did not work, he would have to change his approach \nintraoperatively.   \n Respondent had a Utilization Review performed by Dr. Sumeet Vadera on February 28, 2024; \nthat review  by  Dr.  Vadera  constituted  the  entire  exhibit  submitted  by  respondent. Dr.  Vadera \ndetermined  that  the corrective  surgery  would  not  be  certified because he  did  not  feel  it  met  the \ncriterion as set forth in the Official Disability Guidelines:  \nThe  request  is  not  supported  based  on  the  submitted  documentation. \nAlthough the request is indicated and the claimant presented with low back \npain,  radiated  to  bilateral  posterior  leg  down  to  their  knees,  and  significant \npain  around  the  attachment  of  the  gluteus Medius,  the  request  is  still  not \nmedically  necessary  as  the  guideline  states  there  should  be  presence  of \nconformed radiculopathy with consistent straight leg raise test (SLR), crossed \nstraight  leg  raise  and  reflex  exam  which  correlates  with  symptoms and \nimaging.  The  climate  has  negative SLR  and normal  range  of  motion. \nMoreover, the guideline states that a confirmed nerve root compression must \nbe consistently present both in the imaging findings and physical examination. \nThe claimant has no lumbar spine imaging results submitted and the specific \nlevel of the lumbar spine was not indicated to where the procedure will take \nplace.  Furthermore,  the  guidelines  also  state  that  previous  attempt  to \nconservative treatment must be documented with all of the following: work \n\nShotzman-H006753 \n5 \n \n \nwith  low  back  conditions  after  education  for  low  back  conditions;  drug \ntherapy with NSAID or other analgesic therapy, or muscle relaxant; a support \nprovider  referral  was  documented  with  physical  therapy  or  manipulation \ntherapy. There was no indication the claimant underwent treatment with work \non low back conditions after education for low back conditions. Hence, it is \nstrongly not supported. Therefore, the prospective request for 1 bilateral redo \ndecompressions and bilateral extreme lateral discectomies is non-certified.   \n \n    \n On April 4, 2024, Dr. Blankenship wrote a response to Dr. Vadera’s finding of non-\ncertification, which said in pertinent part: \nFirst of all, Mr. Shotzman’s surgery was denied. One of the problems is it said \nour note did not show weakness, and I think you can see in my note it says \nright quad and hip flexor weakness. It is all capitalized, so that it should be easy \nto see with 4/5 strength. So that denial was basically just that you did not read \nthe clinic note. I have offered the patient L4-5 lateral arthrodesis. The patient’s \nimplant has extruded out approximately 1 centimeter into the psoas muscle. I \ndo feel like his weakness, especially his hip flexor weakness, this coming from \nthis. We have been trying to avoid revising this, but we tried everything short \nof that and it is not working. The gentleman has had extensive physical therapy \nwhich is documented in his records... \n \nAs far as there is no need for the third surgery, I have just outlined that for the \nsecond time in this note. The patient has marked hip flexor and quad weakness. \nHe has an extruded implant. It says there's no documentation to back this up; \nThat is ridiculous, there is. I'm not going to reiterate it; Just look at my notes \nand X-rays. It also stated he had no therapy. Once again, you just have to look \nat the records. I have it dictated in there that the patient has failed routine usual \nconservative measures and has done therapy, and then it also showed he did \nnot  have  any  weakness,  which  is  well  documented  in  my  most  recent  notes \nthat he does have quad and hip flexor weakness, both related probably to the \nextruded implant. \n \nADJUDICATION \n  \n Claimant’s request for additional medical treatment was denied based on a Utilization Review \nrequested by respondent Gallagher Bassett after Dr. Blankenship recommended a third back surgery \nto treat claimant’s compensable injury. The  question  before  me  is whether  the  testimony  of  the \nclaimant and the opinion of his treating physician is more persuasive than the report of a doctor who \n\nShotzman-H006753 \n6 \n \n \nreviewed records provided to him but did not conduct a physical examination of claimant. It is the \nCommission's  duty  to  make  determinations  of  credibility,  to  weigh  the  evidence,  and  to  resolve \nconflicts in medical testimony and evidence. Martin Charcoal, Inc. v. Britt, 102 Ark. App. 252, 284 S.W.3d \n91 (2008). Claimant was a credible witness; I believe he sincerely wants to get better and return to the \nworkforce.  \n Regarding  the  disagreement  between  the medical  reports  and  the  Utilization  Review, Dr. \nBlankenship pointed out in rather scathing terms in his letter of April 4, 2024, that the review of the \nrecords by Dr. Vadera overlooked some important points in rendering a denial of the recommended \nsurgery. Dr. Blankenship plainly explained that the current problem claimant is having is due to an \nextrusion  of  the  implant at  the  L4-5  level,  that  conservative  care  had  been exhausted  and  that  this \ndifficult surgery was the most likely means of getting claimant some relief. The information Dr. Vadera \nrecited as missing from the records he reviewed was contained in the reports submitted as exhibits in \nthis hearing; Dr. Vadera was not provided with an entire record from Dr. Blankenship.\n2\n  Regardless \nof why it was inadequate, this Utilization Review has little credibility.  Dr. Blankenship’s records are \nmore credible, and therefore claimant's proof is sufficient to support his request for additional medical \ntreatment for his compensable injury. \nORDER \n \n Claimant has met his burden of proving by a preponderance of the evidence that he is entitled \nto  additional  medical  treatment  as  recommended  by  Dr. Blankenship for  his compensable  injury, \nincluding an L4-5 lateral arthrodesis. \n Respondent is responsible for paying the court reporter her charges for preparation of \nthe transcript the sum of $291.25. \n \n2\n Utilization Reviews frequently list the records reviewed, but this one did not.  \n\nShotzman-H006753 \n7 \n \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":12541,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H006753 JACOB M. SHOTZMAN, EMPLOYEE CLAIMANT WILBERT FUNERAL SERVICES INC., EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES INC., CARRIER RESPONDENT OPINION FILED JULY 11, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian C...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["back","lumbar","hip"],"fetchedAt":"2026-05-19T22:51:14.135Z"},{"id":"alj-H306658-2024-07-11","awccNumber":"H306658","decisionDate":"2024-07-11","decisionYear":2024,"opinionType":"alj","claimantName":"Kenneth Wrinkle","employerName":null,"title":"WRINKLE VS. LEXICON INC.AWCC# H306658July 11, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Wrinkle_Kenneth_H306658_20240711.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Wrinkle_Kenneth_H306658_20240711.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306658 \n \n \nKENNETH WRINKLE, JR., EMPLOYEE CLAIMANT \n \nLEXICON INC., EMPLOYER RESPONDENT \n \nACIG INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JULY 11, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on July 11, 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Ms. Melissa  Wood,  Attorney  at  Law, North Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on July 11, 2024, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    Admitted  into \nevidence  without  objection  was Commission  Exhibit  1 and Respondents’ Exhibit \n1, forms, pleadings, and correspondence related to this claim, consisting of twenty \n(20) and nine (9) pages, respectively. \n\nWRINKLE – H306658 \n2 \n \n The record reveals the following procedural history: \n The First Report of Injury or Illness, filed on October 17, 2023, reflects that \nClaimant purportedly suffered an injury to his  right shoulder at  work  on April 1, \n2023.   Per  the  Form AR-2  filed  on October 18,  2023,  Respondents controverted \nthe claim in its entirety. \n On October 11,   2023,   through   then-counsel Tanner   Thomas   of   the \nRainwater, Holt & Sexton Law Firm, Claimant filed a Form AR-C, alleging that he \nwas entitled to the full range of initial and additional benefits in connection with his \nalleged    shoulder injury.  No    hearing    request    accompanied    this    filing.  \nRespondents’ counsel entered her appearance on October 17, 2023. \n Respondents  on  April  15,  2024,  filed  its  first  Motion  to  Dismiss  in  this \nmatter.    The  file  was  assigned  to  me;  and  on  April  18,  2024,  my  office  sent \ncorrespondence to Claimant’s co-counsel,  Laura  Beth  York  (Thomas  had  since \nleft the firm), asking for a response to the motion within 20 days.  But on April 19, \n2024, Respondents’ counsel wrote me, asking to withdraw the motion.  This was \npermitted.  The file was returned to the Commission’s general files. \n On April  24,  2024, York moved  to  withdraw  from  her representation  of \nClaimant.  In an Order entered on May 14, 2024, the Full Commission granted the \nmotion under AWCC Advisory 2003-2. \n On May  15,  2024,  Respondents  filed  the  instant Motion  to Dismiss under \nAWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702  (Repl.  2012),  contending  that \n“Claimant  has  not  sought  any  type  of  bona  fide  hearing  before  the  Workers’ \n\nWRINKLE – H306658 \n3 \n \nCompensation Commission over the last six months.”  The file was reassigned to \nme; and on May 16, 2024, my office wrote Claimant, requesting a response to the \nmotion within 20 days.  This correspondence was sent by both certified and first-\nclass mail to the DeWitt address for Claimant listed in the file and on his Form AR-\nC.  The certified letter was returned to the Commission, undelivered, on June 14, \n2024; but the  first-class  correspondence  was not returned to  the  Commission.  \nHowever, no response by Claimant to the motion was forthcoming. \n On June  6,  2024, a hearing on Respondents’ motion was scheduled for \nJuly  11,  2024, at 11:00 a.m.  at  the Commission in Little  Rock.    The Notice  of \nHearing was sent to Claimant by certified and first-class mail to the same address \nas  before.  Once  again,  the certified letter went  unclaimed,  and  was  returned  to \nthe Commission on July 1, 2024.  But as before, the one sent via first class was \nnot returned. \n The hearing proceeded as scheduled on July 11, 2024.  Claimant failed to \nappear  at  the  hearing.    But  Respondents  appeared  through  counsel  and  argued \nfor dismissal under the provisions cited above. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nWRINKLE – H306658 \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute this claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction  in  pursuit  of his claim  since the  filing  of his Form  AR-C  on October  11, \n2023.  Moreover, he failed to appear at the hearing to argue against dismissal of \nthe  claim,  despite  the  evidence  showing  that  both  he  and  Respondents  were \nprovided  reasonable  notice  of  the  Motion  to Dismiss  and  of  the  hearing  thereon.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause of this finding, it is unnecessary to address the application of § 11-9-702. \n\nWRINKLE – H306658 \n5 \n \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).   The Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":6913,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H306658 KENNETH WRINKLE, JR., EMPLOYEE CLAIMANT LEXICON INC., EMPLOYER RESPONDENT ACIG INS. CO., CARRIER RESPONDENT OPINION FILED JULY 11, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 11, 2024, in Little Rock, Pulaski County, A...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:51:16.267Z"},{"id":"full_commission-H301714-2024-07-10","awccNumber":"H301714","decisionDate":"2024-07-10","decisionYear":2024,"opinionType":"full_commission","claimantName":"Sasha Justice","employerName":"O’reilly Automotive, Inc","title":"JUSTICE VS. O’REILLY AUTOMOTIVE, INC. AWCC# H301714 JULY 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Justice_Sasha_H301714_20240710.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Justice_Sasha_H301714_20240710.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H301714 \n \nSASHA JUSTICE, EMPLOYEE  CLAIMANT \n \nO’REILLY AUTOMOTIVE, INC., EMPLOYER RESPONDENT \n \nGALLAGHER BASSETT SERVICES, INC.,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED JULY 10, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MICHAEL L. ELLIG, Attorney at \nLaw, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL C. STILES, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed January 29, 2024.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-hearing \nconference conducted on August 30, 2023, and contained in a Pre-\nhearing Order filed September 6, 2023, are hereby accepted as fact.  \n \n2. The claimant has failed to prove by a preponderance of the evidence \nthat she is entitled to temporary partial disability benefits from \nJanuary 24, 2023, to July 15, 2023. \n\n \nJUSTICE - H301714  2\n  \n \n \n3. The claimant has failed to prove by a preponderance of the                 \nevidence that she is entitled to temporary total disability from July 16, \n2023, to a date to be determined.  \n \n4. The claimant has failed to prove that her attorney is entitled to an         \nattorney fee in this matter.  \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's January 29, \n2024 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2492,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H301714 SASHA JUSTICE, EMPLOYEE CLAIMANT O’REILLY AUTOMOTIVE, INC., EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JULY 10, 2024 Upon review before the FULL COMMISSION in L...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:3","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.193Z"},{"id":"full_commission-H301091-2024-07-10","awccNumber":"H301091","decisionDate":"2024-07-10","decisionYear":2024,"opinionType":"full_commission","claimantName":"Diana Watkins","employerName":"Smith House, Inc","title":"WATKINS VS. SMITH HOUSE, INC. AWCC# H301091 JULY 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Watkins_Diana_H301091_20240710.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Watkins_Diana_H301091_20240710.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H301091 \n \nDIANA L. WATKINS, EMPLOYEE  CLAIMANT \n \nSMITH HOUSE, INC., EMPLOYER RESPONDENT \n \nTECHNOLOGY INSURANCE COMPANY,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED JULY 10, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant is pro se.  \n \nRespondents represented by the HONORABLE WILLIAM C. FRYE, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed March 20, 2024.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby \naccepted. \n \n3. Claimant has not proven by a preponderance of the evidence that \nshe sustained a compensable injury to her left ankle by specific \nincident. \n \n\n \nWATKINS - H301091  2\n  \n \n \n4. Because of Finding of Fact/Conclusion of Law No. 4, supra, the \nremaining issues—whether Claimant is entitled to reasonable and \nnecessary medical treatment and to temporary total disability \nbenefits—are moot and will not be addressed. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's March 20, \n2024 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n  IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2283,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H301091 DIANA L. WATKINS, EMPLOYEE CLAIMANT SMITH HOUSE, INC., EMPLOYER RESPONDENT TECHNOLOGY INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JULY 10, 2024 Upon review before the FULL COMMISSION in Little Roc...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:29:45.197Z"},{"id":"alj-H306533-2024-07-10","awccNumber":"H306533","decisionDate":"2024-07-10","decisionYear":2024,"opinionType":"alj","claimantName":"Jared Goff","employerName":null,"title":"GOFF VS. JOHN WRIGHT CONSTRUCTION CO. INC.AWCC# H306533July 10, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Goff_Jared_H306533_20240710.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Goff_Jared_H306533_20240710.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306533 \n \nJARED L. GOFF, \nEMPLOYEE                                                                                                              CLAIMANT \n \nJOHN WRIGHT CONSTRUCTION CO. INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nCONSTRUCTION WASTE MGMT, \nUNINSURED/EMPLOYER                                                                                RESPONDENT  \n \nALLIED EASTERN INDEMNITY CO., \nCARRIER/TPA (FOR JOHN WRIGHT CONSTRUCTION CO. INC.)       RESPONDENT \n \n \nOPINION FILED JULY 10, 2024 \n \nHearing conducted on Wednesday, June 9,  2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Mr. Jared L. Goff, pro se, of Bella Vista, Arkansas, did not appear in person at the \nhearing.  \n \nThe Respondents  were  represented  by  the Honorable Scott  Zuerker and  Erin  Rambo for  John \nWright  Construction  Company,  Fort  Smith,  Arkansas,  and the Honorable  William  Frye  for \nConstruction Waste Management (Uninsured), North Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on July 9, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nAdmitted  into  evidence by  Respondent/Employer,  Construction  Waste  Management (“CWM”), \nwas Respondent  Exhibit  1, Form  AR-C, consisting of one page. Respondent/Employer,  John \nWright Construction Company, Inc. (“JWC”), presented no exhibits. I  have  also  blue-backed \n\nGOFF, AWCC No. H306533 \n \n2 \n \nForms AR-1 (for both JWC and CWM), Form AR-2 (for both JWC and CWM), and AR-C (for \nJWC), and certified return receipt dated June 14, 2024, as discussed infra. \nThe record reflects on October 5, 2023, a Form AR-1 was filed naming JWC as Claimant’s \nemployer and his job title was driver. Respondents filed Form AR-2, denying the claim on October \n5, 2023. On October 27, 2023, a Form AR-C was filed by Claimant’s then-attorney, Mark Peoples, \nreflecting that he purportedly injured his lungs inhaling chemicals, asbestos, on August 4, 2023. \nThis  claim  was  filed  against  Respondent/Employer JWC. Another  Form  AR-1  was  filed  on \nNovember 3, 2023, purporting that Claimant was operating a grapple truck and loading demolition \ndebris that caused shortness of breath and tiredness. This form states that CWM was the employer, \nand his position title was driver. Respondent/Employer CWM filed a Form AR-2 on November 3, \n2023, denying compensability. Claimant filed a Form AR-C on October 19, 2023, purporting that \nhe  sustained  injuries  to  his  lung  through  inhalation  of  asbestos. Both  employers  in  this  opinion \nhave the same owner. However, CWM does not have workers’ compensation insurance.  \nOn January 12, 2024, Claimant’s counsel, Mark Peoples, filed a Motion to Withdraw as \ncounsel. This motion was granted on February 12, 2024. Respondent’s counsel for JWC next filed \na  Motion  to  Dismiss  on April 29,  2024. Respondent’s counsel for CWM also filed a Motion to \nDismiss on April 30, 2024. The bases for both motions were a lack of prosecution by the Claimant. \nClaimant was sent notice of the Motion to Dismiss certified and regular First-Class Mail on May \n2, 2024. The Claimant did not claim the certified notice on May 17, 2024. However, the notice \nsent out regular First-Class Mail was not returned to the Commission. The Claimant had twenty \ndays to respond to the Motion to Dismiss. The Claimant did not respond to the Motion to Dismiss.  \nTherefore, in accordance with applicable Arkansas law, the Claimant was mailed due and \nproper  legal  notice  of the  hearing  date via  the  United  States  Postal  Service  (USPS),  First  Class \n\nGOFF, AWCC No. H306533 \n \n3 \n \nCertified Mail, Return Receipt Requested, and regular First-Class Mail. The certified notice was \nserved on June 14, 2024. Likewise, the regular First-Class mail hearing notice was not returned to \nthe   Commission. The   hearing   took place on July   9,   2024. During   oral   arguments, \nRespondent/Employers JWC and CWM asked for AWCC Rule 099.13 to be applied to this claim. \nAnd as previously mentioned, the Claimant did not show up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant  and  Respondents  both  had reasonable notice  of  the July  9,  2024 \nhearing. \n \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on  the Respondents’ Motion  to Dismiss. Commission  Exhibit  1  provides a \nCertified  U.S.  Mail  Return  Receipt dated  June  14,  2024, and demonstrates  that  Claimant  was \nserved  with  notice  of  the  Motion  to  Dismiss  hearing  date. Respondents’ counsel for  JWC  and \nCWM  were at  the  hearing  and  argued  their motion. Thus, I  find  by  the  preponderance  of  the \nevidence that reasonable notice was given to all parties.  \n\nGOFF, AWCC No. H306533 \n \n4 \n \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant filed his Form AR-C against \nCWM on October 19, 2023. The Claimant filed his Form AR-C against JWC on October 27, 2023. \nSince  Forms  AR-C  were  filed,  Claimant  has  failed  to  request  a  hearing. Moreover,  despite \nreceiving the  hearing  notice  for  the  Motion  to  Dismiss,  Claimant also failed  to  appear.  The \nClaimant has clearly abandoned his claim by not doing the bare minimum in prosecuting his claim. \nTherefore, I do find by the preponderance of the evidence that Claimant has failed to prosecute his \nclaim by failing to request a hearing. Thus, Respondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":7118,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H306533 JARED L. GOFF, EMPLOYEE CLAIMANT JOHN WRIGHT CONSTRUCTION CO. INC., EMPLOYER RESPONDENT CONSTRUCTION WASTE MGMT, UNINSURED/EMPLOYER RESPONDENT ALLIED EASTERN INDEMNITY CO., CARRIER/TPA (FOR JOHN WRIGHT CONSTRUCTION CO. INC.) RESPONDENT OPINION FILED J...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:51:03.623Z"},{"id":"alj-H204393-2024-07-10","awccNumber":"H204393","decisionDate":"2024-07-10","decisionYear":2024,"opinionType":"alj","claimantName":"Shirley Sanford","employerName":null,"title":"SANFORD VS. ARKANSAS BLDG. SRVS., LLCAWCC# H204393July 10, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Sanford_Shirley_H204393_20240710.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Sanford_Shirley_H204393_20240710.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204393 \n \nSHIRLEY A. SANFORD, EMPLOYEE CLAIMANT \n \nARKANSAS BLDG. SRVS., LLC \nEMPLOYER RESPONDENT \n \nACCIDENT FUND INSURANCE CO., \nCARRIER/THIRD-PARTY ADMINISTRATOR RESPONDENT \n \nOPINION FILED JULY 10, 2024 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on  June 12,  2024,  in  Little  Rock, \nArkansas. \n \nClaimant was represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented by Ms. Karen McKinney, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on June 12, 2024.  A prehearing telephone conference \ntook  place  on March 19,  2024.  A  prehearing  order  was  entered  on  that  date  and  subsequently \nentered  into  evidence,  with  amendments  by  the  parties,  as  Commission  Exhibit  1.  The parties’ \nstipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2. The Claimant allegedly sustained a compensable injury to her left leg, knee, \nhip, shoulder, and spine on August 4, 2020. \n \n3. Respondents have controverted this claim in its entirety. \n \n\nSANFORD H204393 \n \n \n2 \n \n \n4. Claimant’s  average  weekly  wage  of  $127.77, entitles  her to a  temporary \ntotal  disability  rate  of  $85.00,  and  a  permanent  partial disability  rate  of \n$85.00.\n1\n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1. Whether the claim is barred by the Statute of Limitations. \n \n2. Whether Claimant sustained compensable injuries to her left leg, knee, hip, shoulder, \nand spine by specific incident. \n  \n3. Whether Claimant is entitled to any reasonable and necessary medical treatment.\n2\n \n \n4. Whether Claimant is entitled to temporary total disability benefits from August 5, 2020, \nto a date yet to be determined. \n \n5.  Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s  Contentions:  The  Claimant  contends  that she  has sustained  compensable \ninjuries to  her  left  leg,  hips, spine,  and  shoulders  on  August  4,  2020.  Claimant  contends  she  is \nentitled to payment of temporary disability benefits. Claimant further claims entitlement to medical \ntreatment. These matters are controverted for purposes of an attorney fee.  \nClaimant’s attorney respectfully request that any attorney’s fee owed by Claimant on \ncontroverted benefits, paid by award or otherwise, be deducted from Claimant’s benefits and paid \ndirectly to Claimant’s attorney by separate check; and that any Commission Order direct  the \n \n1\n The parties stipulated and the Commission approved Claimant’s average weekly wage, \ntemporary total disability benefits, and permanent partial disability benefits on the hearing date. \n2\n Claimant, at the hearing, wanted to request medical treatment and it was made an issue. \nThe original issue listed as number three in the March 19, 2024, Prehearing Order, “What \nCompensable injury/injuries were sustained?” is properly merged under issue number two since \nthat is where that determination would be made. \n\nSANFORD H204393 \n \n \n3 \n \n \nrespondent to make payment of any attorney’s fee in this manner.  \nRespondents’ Contentions: Respondents  contend  that  the  Claimant  only  worked  for \nRespondent Employer for three weeks from May 14, 2020, through June 5, 2020. The Claimant \nlast  worked  for  Respondent/Employer  on  June  5,  2020.  The  Claimant  was  assigned  by \nRespondent/Employer  to clean  at  the  Tyson  plant  in  Maumelle.  The  Claimant  was  upset  with \nTyson due to an outbreak of Covid 19 at the plant while she worked there. The Claimant and her \ngranddaughter  made  threats  against  Tyson.  On  June  5,  2020,  Tyson  insisted  the  Claimant  be \nremoved from their property. Claimant refused a position with Respondent/Employer at another \nfacility. The Claimant was terminated for insubordination and gross misconduct. The Claimant left \nthreatening voicemails with Respondent/Employer since being removed from the Tyson facility. \nThe   Claimant did   not make   a   credible   report   of   injury   while   employed   by \nRespondent/Employer.  The  AR-C  filed  by  the  Claimant  was  not  accepted  until  June  17,  2022, \nmore than two years after her last date of employment and thus more than the two years after any \nwork-related  injury  could  have  occurred.  Accordingly,  the  claim  is  barred  by  the  statute  of \nlimitations.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and the \nevidentiary record, I hereby make the following Findings of Fact and Conclusions of Law in accordance \nwith Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby accepted. \n \n3. The Claimant has not proven by the preponderance of the evidence that her claim was \nfiled within the statute of limitations. Therefore, her claim is barred by the statute of \nlimitations. \n \n\nSANFORD H204393 \n \n \n4 \n \n \n4. Moreover, the Claimant has also not proven by the preponderance of the evidence that \nshe  sustained  a  compensable  injury arising  out  of  and  through  the  course  of \nemployment. \n \n5. Based on my finding that 1.) the statute of limitations has passed before the filing of \nher claim, and 2.) that her alleged injuries did not arise out of and through the course \nof employment, the remaining issues of reasonable and necessary medical treatment, \ntemporary total disability benefits, and a controverted attorney’s fee are moot and will \nnot be addressed in this opinion. \n \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, Medical Records, that consists of twenty-\nsix pages, Claimant’s  Exhibit  2,  documents  from  Commission’s  file,  pleadings,  and \ncorrespondence, consisting of five pages, Respondents’ Exhibit 1, Medical Records, that consist \nof twenty-five pages, Respondents’ Exhibit 2, Non-Medical  Documents,  consisting  of eleven \npages, and Commission  Exhibit  1,  Pre-Hearing  Order,  that  consists  of five pages. Forms  AR-C \nand AR-1 blue-backed and made a part of this record. The Claimant, Shirley Sanford, and Michael \nChristopher Fairfield, the Chief Executive Officer for Respondent/Employer, were the only two \nwitnesses testifying in the full hearing.  \nClaimant was a traveling custodian for the Respondent/Employer. Respondent/Employer \nwould send the Claimant out on different cleaning assignments for different business/companies. \nThe Claimant testified that on August 4, 2020, while performing assigned cleaning duties at the \nTyson plant located in Maumelle, Arkansas, she slipped and fell injuring her left leg, knee, hip, \nshoulder, and spine. The Claimant testified that she reported her injury to Tyson management but \nnot to the Respondent/Employer. The Claimant testified that Tyson made a report of her injury. \nThe  Claimant  further  testified that she  believed  that  Tyson  would  report  the  incident  to \n\nSANFORD H204393 \n \n \n5 \n \n \nRespondent/Employer. No evidence was presented showing that such a communication was ever \nmade to Respondent/Employer regarding Claimant’s August 4, 2020, alleged injuries.  \nDespite Claimant’s testimony, the Respondents argue that the Claimant did not work for \nRespondent    Employer    on    August    4,    2020. According    to    Mr. Fairfield,    CEO    for \nRespondent/Employer, the Claimant was hired by Respondent/Employer on May 5, 2020, and was \nterminated on June 6, 2020, for insubordination. Claimant’s last day of actual work was on June \n3, 2020.  Claimant denied being terminated on that date and insisted that she was still employed \nby the Respondent/Employer on August 4, 2020, despite presenting no documentary evidence to \ncounter Respondent/Employer’s business records, i.e. Claimant’s personnel file.  \nClaimant’s filings are all consistent with her alleged injury date of August 4, 2020. For \nexample, Claimant filed her Form AR-C on June 10, 2022, but it was rejected by the Commission \nfor  not  including  an  incident  date.  The  Form  AR-C  was  finally  accepted  and  filed  by  the \nCommission on June 17, 2022. According to the accepted and filed Form AR-C, Claimant stated \nthat  the  date  of  injury  was  August  4,  2020.  A Form  AR-1 was  filed on  June  27,  2022, also \npurporting the date of injury as August 4, 2020. Despite this, Claimant has not produced any pay \nstubs  or  other  affirming  documentation  that  demonstrated  that  she  was  still  working  for \nRespondent/Employer on August 4, 2020, the date of her injury.  \nAdjudication \nA. Whether the Claim is barred by the Statute of Limitations. \n Standards.    Under the  pertinent  part  of Ark.  Code  Ann.  §11-9-702(a)(1)  (Repl.  2012) it \nreads: \n“A claim for compensation for disability on account of an injury, other than an \noccupational disease and occupational infection, shall be barred unless filed with \nthe Workers’ Compensation Commission within two years from the date of the \ncompensable injury...”.  \n\nSANFORD H204393 \n \n \n6 \n \n \n \n The  burden  rests  on  Claimant  to  prove  that  her claim  was  timely  filed.   Stewart  v.  Ark. \nGlass Container, 2010 Ark. 198, 366 S.W.3d 358; Kent v. Single Source Transp., 103 Ark. App. \n151,  287  S.W.3d  619  (2008).    Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012), she  must \nprove this by a preponderance of the evidence. The standard “preponderance of the evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, \n326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n Discussion.   I  find  by  the  preponderance  of  the  evidence  that  the  Claimant  has  failed  to \nprove that her claim was timely filed. According to the testimony of Mr. Fairfield, Claimant’s last \nday   of   employment was June   6,   2020. Mr.   Fairfield,   as   Chief   Executive   Officer   for \nRespondent/Employer, relied on business records, i.e. Claimant’s personnel file, that listed her \nstart date as May 5, 2020, and her termination date as June 6, 2020. See Respondents’ Exhibit 2, \np. 4-5. Respondent/Employer’s time keeping report shows Claimant’s last day of actual work as \nJune 3, 2020. See Respondents’ Exhibit 2, p. 8. \nDespite Respondents’ documentary evidence and aside from Claimant’s testimony, she did \nnot present any evidence that demonstrated she was working for Respondent/Employer on August \n4,  2020. For  Example, Claimant did  not produce any pay  stubs demonstrating  she  was  still \nreceiving remuneration from Respondent/Employer for services on August 4, 2020, despite being \nasked in a June 13, 2023, deposition, by Respondents’ counsel, to make copies of her pay stubs. \nSee Transcript p. 54, line 7 – p. 55, line 25. The Claimant after being reminded at the hearing of \nthe pay stub request, via deposition, denied that  she was  ever asked to bring her pay stubs. See \nTranscript  p.  55,  lines  16 - 25. I don’t find her testimony credible. Respondents  made  a clear \ncontention, months before the full hearing, that Claimant did not work for Respondent/Employer \non August 4, 2020. Claimant has the burden to prove she was employed at the time of her injuries. \n\nSANFORD H204393 \n \n \n7 \n \n \nMikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). The Claimant \nhas not met her burden of proof. Thus, I find by the preponderance of the evidence that Claimant’s \nlast day of employment with Respondent/Employer was on June 6, 2020.  \nFor  clarity,  this finding means any  injuries sustained  by Claimant while  working  for \nRespondent/Employer could not have occurred after June 6, 2020. Accepting Claimant’s alleged \ninjuries,  at  best, as  occurring no  later  than June  6,  2020, means  she  has  failed  to  file  her  claim \nwithin  the  two-year  statute  of  limitations. Claimant’s Form AR-C  was  filed  on  June  17,  2022, \neleven  days past the  statute  of  limitations  deadline. See  Respondents  Exhibit  2,  p.  9.  Even  if  I \naccepted the date the Form AR-C was rejected, June 10, 2022, it still would be past the two-year \nstatute of limitations deadline by four days. Thus, I find that Claimant has failed to prove by the \npreponderance of the evidence that she filed her claim within the two-year statute of limitations.  \nHowever, in  the  alternative,  taking  what  the  Claimant  said as  true  that  she  was employed  with \nRespondent/Employer on August 4, 2020, then there would not be a statute of limitations violation. \nThus, I feel the analysis should go further into compensability. \nB. Whether Claimant sustained compensable injuries to her left leg, knee, hip, \nshoulder, and spine by specific incident. \nTo determine compensability, I find Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. \n2012), applies to the analysis of Claimant’s alleged injuries, and it defines “compensable injury” \nas: \n(i) An accidental injury causing internal or external physical harm to the body . . . \narising out of and in the course of employment and which requires medical services \nor results in disability or death.  An injury is “accidental” only if it is caused by a \nspecific incident and is identifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective findings.  \nArk.  Code  Ann.  §  11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those findings that \n\nSANFORD H204393 \n \n \n8 \n \n \ncannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  The element “arising \nout of . . . [the] employment” relates to the causal connection between the claimant’s injury and \nhis or her employment.  City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 (1987).  \nAn  injury arises  out  of a  claimant’s  employment  “when  a  causal  connection  between  work \nconditions and the injury is apparent to the rational mind.”  Id. \nIf the claimant fails to establish by a preponderance of the evidence any of the requirements \nfor  establishing  compensability,  compensation  must  be  denied.   Mikel  v.  Engineered  Specialty \nPlastics,  56  Ark.  App.  126,  938  S.W.2d  876  (1997). Again,  this  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’ credibility and how much \nweight to accord to that person’s testimony are solely up to the Commission.  White  v.  Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through \nconflicting evidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness  but  may  accept  and  translate  into \nfindings of fact only those portions of the testimony that it deems worthy of belief.  Id. \nDiscussion.  I find the Claimant has not proven by the preponderance of the evidence that \nshe  sustained  a  compensable  injury arising  out  of  and  through  the  course  of  employment. As \nmentioned  above,  the Claimant  has  the burden to  prove  she  was  employed  at  the  time  of  her \ninjuries. Mikel  v.  Engineered  Specialty  Plastics,  56  Ark.  App.  126,  938  S.W.2d  876  (1997). \nRespondent/Employer’s  business records make clear that Claimant was hired May 5, 2020,  and \nwas  terminated  due  to  insubordination  on  June  6,  2020. See  Respondents  Ex.  2,  p.  4-5.  The \n\nSANFORD H204393 \n \n \n9 \n \n \nRespondent/Employer’s timekeeping report reveals Claimant’s last actual day of work was June \n3, 2020. See Respondents’ Ex. 2, p. 8. The Claimant maintains that she was injured on August 4, \n2020. However, Claimant has produced  no  pay  stubs  or  bank  records  showing  she  was  still \nreceiving payment for services rendered by Respondent/Employer. Thus, Claimant has not proven \nby the preponderance of the evidence that she sustained a compensable injury arising out of and \nthrough the course of employment. Therefore, her claim must fail. \nMISCELLANEOUS ISSUES \n Based on my previous findings that 1.) the statute of limitations has passed before the filing \nof her claim, and 2.) no compensability since the alleged injuries did not arise out of and through \nthe course of her employment, the remaining issues regarding reasonable and necessary medical \ntreatment, temporary total disability benefits, and a controverted attorney’s fee are moot and will \nnot be addressed in this opinion.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, the parties \nshall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n                                                                                    Administrative Law Judge","textLength":17501,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H204393 SHIRLEY A. SANFORD, EMPLOYEE CLAIMANT ARKANSAS BLDG. SRVS., LLC EMPLOYER RESPONDENT ACCIDENT FUND INSURANCE CO., CARRIER/THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED JULY 10, 2024 Hearing before Administrative Law Judge, Steven Porch, on June 12...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["knee","hip","shoulder"],"fetchedAt":"2026-05-19T22:51:05.698Z"},{"id":"alj-H303774-2024-07-10","awccNumber":"H303774","decisionDate":"2024-07-10","decisionYear":2024,"opinionType":"alj","claimantName":"Cody Sheff","employerName":null,"title":"SHEFF VS. ROUGH HANDS CONSTR. CO., INC.AWCC# H303774July 10, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SHEFF_CODY_H303774_20240710.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHEFF_CODY_H303774_20240710.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303774 \n \nCODY J. SHEFF, \nEMPLOYEE                                                                                                              CLAIMANT \n \nROUGH HANDS CONSTR. CO., INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nTECHNOLOGY INS. CO./ \nAMTRUST NORTH AMERICA \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION FILED JULY 10, 2024, \nHOLDING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE IN \nABEYANCE FOR 30 DAYS \n \nHearing conducted on Friday, July  5, 2024, before  the  Arkansas  Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Hot Springs, \nGarland County, Arkansas. \n \nThe claimant, Mr. Cody J. Sheff, pro se, of Hot Springs, Garland County, Arkansas, appeared in \nperson at the hearing.  \n \nThe respondents were represented by the Honorable William C. (Bill) Frye, Frye Law Firm, P.A., \nNorth Little Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Friday, July 5, 2024, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark.  Code  Ann. §  11-9-702(a)(4) (2024 Lexis \nReplacement)  and  Commission  Rule  099.13  (2024 Lexis  Repl.).  The  respondents filed  a letter \nmotion to  dismiss  with  the  Commission  on May  8,  2024, requesting  this  claim  be  dismissed \nwithout prejudice for lack of prosecution. \n           In accordance with applicable Arkansas law, the claimant was mailed due and proper legal \nnotice of both the respondents’ motion to dismiss as well as a copy of the hearing notice at his \ncurrent addresses of record via the United States Postal Service (USPS), First Class Certified Mail, \n\nCody J. Sheff, AWCC No. H303774 \n \n2 \n \nwhich he received on June 1, 2024. (Commission Exhibit 1). Although the claimant failed and/or \nrefused to respond to the respondents’ motion, or to contact the respondents or the Commission, \nhe  appeared  in  person,  pro  se,  at  the  subject  hearing. The  record  herein  consists  of the  hearing \ntranscript and any and all exhibits contained therein and attached thereto.  \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ letter motion to dismiss \nfiled with the Commission on May 8, 2024. The respondents have controverted this claim in its \nentirety.   \n           The  claimant appeared  in  person  at  the  hearing.  He  testified  he  had  at  one  time  been \nrepresented by an attorney, Mark Peoples of the Peoples Law Firm in Little Rock. The claimant \ntestified in essence that Attorney Peoples, “wanted him to do all the work” to prove his claim, and \nthat Attorney Peoples advised the claimant he had not given him enough proof that he sustained a \nwork-related injury. Therefore, Attorney Peoples filed a motion with the Commission requesting \nto withdraw as the claimant’s attorney, and the Commission granted this motion via a unanimous \norder filed May 6, 2024. Very soon thereafter, on May 8, 2024, the respondents’ filed their letter \nmotion to dismiss with the Commission.  \n          The claimant testified that either he and/or his uncle had retained an attorney to resent him \nin this matter, although he was unable to advise whether the attorney had notice of the hearing, or \nto say why the attorney had not appeared at the hearing with him. There exists no documentary \nevidence in the record corroborating the claimant’s statement and/or belief that  either  his  uncle \nand/or he had retained counsel to represent him in this matter. The ALJ provided the claimant with \n\nCody J. Sheff, AWCC No. H303774 \n \n3 \n \nthe contact information for the Commission’s Legal Advisors Division so that he could call them \nand seek any guidance and/or obtain any additional information he required concerning his legal \nrights and responsibilities in this matter. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, and as I advised the parties on the record at the hearing, I hereby make \nthe following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. The ALJ will hold in abeyance a final decision on the respondents’ subject motion \n                  to dismiss without prejudice for a period of 30 days, or until COB on August 6, \n                  2024. \n \n      3.         The claimant has 30 days from the hearing date, or until COB on Tuesday, August \n                  6, 2024, for an attorney to enter an appearance on his behalf in this claim and to \n                  request a hearing; or, alternatively, for the claimant to request a hearing on the \n                  merits, and advise he intends to proceed with this claim pro se, i.e., representing \n                  himself.  \n \n      4.         If the claimant fails and/or refuses to comply with the immediately aforementioned \n                  conditions set forth in Paragraph 3 on or before COB on Tuesday, August 6, 2024, \n                  the ALJ shall grant the respondents’ letter motion to dismiss without prejudice filed \n                  with the Commission on May 8, 2024, without prejudice without the necessity of \n                  either the respondents filing another motion to dismiss, and without the necessity \n                  of the Commission holding another hearing the respondents’ motion to dismiss \n                  without prejudice. \n \n           If they have not already done so, the respondents shall pay the court reporter’s invoice \nwithin \n \n twenty (20) days of the filing of this opinion and order. \n \n            IT IS SO ORDERED.  \n \n                                                                                               ______________________________ \n                                                                                               Mike Pickens \n                                                                                               Administrative Law Judge \n \nMP/mp \n\nCody J. Sheff, AWCC No. H303774 \n \n4","textLength":6455,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303774 CODY J. SHEFF, EMPLOYEE CLAIMANT ROUGH HANDS CONSTR. CO., INC., EMPLOYER RESPONDENT TECHNOLOGY INS. CO./ AMTRUST NORTH AMERICA INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JULY 10, 2024, HOLDING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE IN ...","outcome":"dismissed","outcomeKeywords":["dismissed:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:51:07.769Z"},{"id":"alj-H306575-2024-07-09","awccNumber":"H306575","decisionDate":"2024-07-09","decisionYear":2024,"opinionType":"alj","claimantName":"Presley Adams","employerName":null,"title":"ADAMS VS. PINNACLE PROP. MGMT SERVICESAWCC# H306575July 9, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ADAMS_PRESLEY_H306575_20240709.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ADAMS_PRESLEY_H306575_20240709.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H306575 \n \nPRESLEY ADAMS, EMPLOYEE     CLAIMANT \n \nPINNACLE PROP. MGMT SERVICES, EMPLOYER  RESPONDENT \n \nFARMINGTON CASUALTY COMPANY, TPA/CARRIER RESPONDENT \n \n           \n \n \nOPINION FILED JULY 9, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, on June 25, 2024. \n \nClaimant is Pro Se and appeared on his own behalf. \n \nRespondents are represented by their attorney, Guy Alton Wade, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on June 25, 2024, in Little Rock, \nArkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to A.C.A. \n11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  The claimant \nwas pro se and appeared on his own behalf and objected to the dismissal of his claim. \n\nThe claimant contended in his testimony that he had responded to various \ncorrespondence from the Commission, but in a review of the file, there was no record of \na significant portion of the claimed correspondence from the claimant to the \nCommission and it was also noted that the claimant’s address with the Commission was \nin fact his mailing address.  A Motion to Dismiss request by letter had been filed on May \n12, 2024, but there appeared to be no written response filed by the claimant of record.      \n Appropriate notice was provided to the claimant who did appear timely at the \ntime of the hearing on the Motion to Dismiss on June 25, 2024, in Little Rock, Arkansas.    \nAt the time of the hearing, Guy Alton Wade appeared on behalf of the Respondents and \nasked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for \nthe Respondent, as well testimony by the claimant, it is found that the Motion to Dismiss \nis hereby denied at this time.  The Claimant shall be responsible for the timely filing of a \nresponse to discovery and other documents in regard to the pursuit of his claim and is \nfurther instructed that it would be in his best interest to obtain the assistance of an \nattorney.  If he is unable to obtain representation, he is instructed that he should contact \nthe Legal Advisor Division of the Arkansas Workers’ Compensation Commission. \nORDER \n Pursuant to the above statement of the case, it is determined that there is no \nalternative but to deny the Motion to Dismiss at this time. \n \n\nIT IS SO ORDERED: \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2687,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306575 PRESLEY ADAMS, EMPLOYEE CLAIMANT PINNACLE PROP. MGMT SERVICES, EMPLOYER RESPONDENT FARMINGTON CASUALTY COMPANY, TPA/CARRIER RESPONDENT OPINION FILED JULY 9, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas, on J...","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:57.343Z"},{"id":"alj-H207385-2024-07-09","awccNumber":"H207385","decisionDate":"2024-07-09","decisionYear":2024,"opinionType":"alj","claimantName":"Bruce Overman","employerName":"American Greetings","title":"OVERMAN VS. AMERICAN GREETINGS AWCC# H207385July 9, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Overman_Bruce_H207385_20240709.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Overman_Bruce_H207385_20240709.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H207385 \n \nBRUCE OVERMAN, \nEMPLOYEE                                                                                                              CLAIMANT \n \nAMERICAN GREETINGS CORP., \nSELF-INSURED/EMPLOYER                                                                           RESPONDENT  \n \nAMERICA ZURICH INS. CO., \nCARRIER/THIRD PARTY ADMINISTRATOR                                             RESPONDENT \n \n \nOPINION FILED JULY 9, 2024 \n \nHearing conducted on Wednesday, June 28, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Mr. Bruce Overman, pro se, of Blytheville, Arkansas, did not appear in person at \nthe hearing.  \n \nThe Respondents were represented by the Honorable Eric Newkirk, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on June 28, 2024, in Jonesboro, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nAdmitted into evidence was Respondent Exhibit 1, pleadings, and correspondence, consisting of \nfifty-seven pages. I have also blue-backed Forms AR-1, AR-2, and AR-C, as discussed infra. \nThe  record  reflects on October  13,  2022,  a  Form  AR-C was  filed by Claimant’s then-\nattorney, Scott Hunter, reflecting that he purportedly injured his back on February 7, 2022. How \nhe injured his back was not stated in this form. Claimant requested a hearing on October 31, 2022. \nBased on this request, prehearing documents were sent out and returned followed by a prehearing \ntelephone  conference that  took  place on  February 15,  2023.  A  prehearing  order  was  filed on \n\nOVERMAN, AWCC No. H207385 \n \n2 \n \nFebruary 22, 2023, setting the full hearing for April 14, 2023, in Jonesboro, Arkansas. The full \nhearing was continued and reset by letter dated April 19, 2023, for June 9, 2023. On May 31, 2023, \nthe parties again requested a continuance and that the file be sent to general files. This request was \ngranted  on  June  2,  2023.  Respondents next filed  a  Motion  to  Dismiss  on  January  8,  2024.  The \nbases for the motion were a lack of prosecution by the Claimant. Claimant was sent certified notice \nof the Motion to Dismiss from the Commission on January 24, 2024. The Claimant received that \nnotice on January 27, 2024, at his last known address. The Claimant had twenty days to respond \nto the Motion to Dismiss. The Claimant did not respond to the Motion to Dismiss.  \nIn the interim, Claimant’s attorney, Scott Hunter, filed a Motion to Withdraw as counsel \non February 22, 2024. This motion was granted on February 27, 2024. And since the Claimant has \nfailed to object to both the Motion to Withdraw and the Motion to Dismiss in writing, a hearing \nnotice for  the  Motion  to  Dismiss must  be  sent  out.  Therefore,  in  accordance  with  applicable \nArkansas  law,  the Claimant  was  mailed  due  and  proper  legal  notice  of the  hearing  date via  the \nUnited States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and \nregular First-Class Mail. The certified notice was served on May 16, 2024. Likewise, the regular \nFirst-Class mail hearing notice was not returned to the Commission. The  hearing took place on \nJune 28, 2024. And as previously mentioned, the Claimant did not show up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the June 28, 2024, \nhearing. \n \n\nOVERMAN, AWCC No. H207385 \n \n3 \n \n3. Respondents  have  proven  by  a preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on  the Respondents’ Motion  to Dismiss. Commission  Exhibit  1  provides \nmultiple Certified U.S. Mail Return Receipts. One receipt dated May 16, 2024, was claimed by \nthe Claimant. This receipt establishes that the Motion to Dismiss hearing notice was served on the \nClaimant. Respondents’ counsel was at the hearing and argued the motion. Thus, I  find  by  the \npreponderance of the evidence that reasonable notice was given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution. The  Claimant  filed his Form AR-C on \nOctober  13,  2022.  Claimant  immediately  requested  a  hearing and has  since then requested \ncontinuances  for  the  two  hearings  that  were  set. When  notice  of  the  Motion  to  Dismiss  was \nreceived by Claimant on January 27, 2024, he failed to respond to the Motion by objecting and \nrequesting  another hearing  in  writing. Moreover,  despite  receiving  the  hearing  notice  for  the \nMotion to Dismiss, Claimant failed to appear. The Claimant has clearly abandoned his claim by \nnot doing the bare minimum in prosecuting his claim. Therefore, I do find by the preponderance \nof the evidence that Claimant has failed to prosecute his claim by failing to request a hearing. Thus, \nRespondents’ Motion to Dismiss should be granted. \n \n \n \n\nOVERMAN, AWCC No. H207385 \n \n4 \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6375,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H207385 BRUCE OVERMAN, EMPLOYEE CLAIMANT AMERICAN GREETINGS CORP., SELF-INSURED/EMPLOYER RESPONDENT AMERICA ZURICH INS. CO., CARRIER/THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JULY 9, 2024 Hearing conducted on Wednesday, June 28, 2024, before the Arka...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:50:59.411Z"},{"id":"alj-H306644-2024-07-09","awccNumber":"H306644","decisionDate":"2024-07-09","decisionYear":2024,"opinionType":"alj","claimantName":"Gale Woodell","employerName":null,"title":"WOODELL VS. INDIAN ROCK VILLAGEAWCC# H306644July 9, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WOODELL_GALE_H306644_20240709.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WOODELL_GALE_H306644_20240709.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H306644 \n \nGALE WOODELL, EMPLOYEE     CLAIMANT \n \nINDIAN ROCK VILLAGE, EMPLOYER    RESPONDENT \n \nWESCO INSURANCE CO., TPA/CARRIER   RESPONDENT \n \n           \n \n \nOPINION FILED JULY 9, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Clinton, Arkansas \non June 28, 2024. \n \nClaimant is represented by her attorney, Laura Beth York, Little Rock. Arkansas. \n \nRespondents are represented by their attorney, William C. Frye, North Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on June 28, 2024, in Clinton, \nArkansas on respondent’s Motion to Dismiss for failure to prosecute pursuant to A.C.A. \n11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  Although the \nclaimant did not appear, the claimant through her representative notified the \n\nCommission that she had no objection to the matter being dismissed, if dismissed \nwithout prejudice.  Claimant had filed a Form AR – C on or about November 2, 2023 \ncontending that she had injured her right knee and other whole body while in the course \nand scope of her employment.  A First Report of Injury was filed on November 2, 2023, \nwhich provided that the claimant had fallen or slipped, which resulted in the claimant \ntearing her right knee meniscus.  An AR – 2 was also filed on or about November 2, \n2023, which stated the date of injury was January 31, 2023, and that the claim was \nmedical only.     \n A Motion to Dismiss was filed by the respondents, requesting that the matter be \ndismissed for failure to prosecute pursuant to A.C.A. 11-9-702(a) (4) and Rule 099.13.  \nThe claimant has not requested a hearing to date and more than six months have \npassed since the filing of the original claim.     \n Appropriate notice was provided to the claimant notifying of a hearing on the \nMotion to Dismiss on June 28, 2024, in Clinton, Arkansas.  The claimant did in fact \nrespond by a letter from her attorney.  At the time of the hearing, William C. Frye, \nappeared on behalf of the Respondents and asked that the matter be dismissed for lack \nof prosecution. \n After a review of the record as a whole, to include all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for \nthe Respondents, it is found that this matter should be dismissed without prejudice, for \nfailure to prosecute pursuant to A.C.A. 11-9-702 and Rule 099.13 of the Arkansas \nWorkers’ Compensation Act. \n\nORDER \n Pursuant to the above statement of the case, there is no alternative but to \ndismiss this claim in its entirety, without prejudice, for failure to prosecute. \nIT IS SO ORDERED \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2816,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306644 GALE WOODELL, EMPLOYEE CLAIMANT INDIAN ROCK VILLAGE, EMPLOYER RESPONDENT WESCO INSURANCE CO., TPA/CARRIER RESPONDENT OPINION FILED JULY 9, 2024 Hearing before Administrative Law Judge James D. Kennedy in Clinton, Arkansas on June 28, 2024. Claimant ...","outcome":"dismissed","outcomeKeywords":["dismissed:9"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:51:01.478Z"},{"id":"alj-H300727-2024-07-08","awccNumber":"H300727","decisionDate":"2024-07-08","decisionYear":2024,"opinionType":"alj","claimantName":"Lela Key","employerName":null,"title":"KEY VS. KEDRION BIOPHARMA, INC.AWCC# H300727July 8, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Key_Lela_H300727_20240708.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Key_Lela_H300727_20240708.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300727 \n \n \nLELA KEY, EMPLOYEE CLAIMANT \n \nKEDRION BIOPHARMA, INC., \nEMPLOYER RESPONDENT \n \nBANKERS STD. INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED JULY 8, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on July 5,  2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Eric  Newkirk,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on July 5,  2024,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  were  Commission  Exhibit  1, correspondence  and United \nStates  Postal  Service  (“USPS”)  responses,  consisting  of three pages;  and \nRespondents’  Exhibit  1,  pleadings,  correspondence  and  forms  related  to  this \nclaim, consisting of 58 numbered pages. \n\nKEY – H300727 \n \n2 \n \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed on February 2, 2023, Claimant \npurportedly suffered an injury to her left foot while walking to work on January 18, \n2023.    She  related  that she  stepped  in a pipe,  causing  her  to  twist  her  foot  and \nfall.  According to the Form AR-2 that was filed on February 2, 2023, Respondents \ncontroverted the  claim in  its  entirety,  claiming  that  the  Going  and  Coming  Rule \nmade the alleged injury not compensable. \n On March 15, 2023, through then-counsel Andy Caldwell, Claimant filed a \nForm  AR-C.    Therein,  he  alleged  that his client was  entitled  to  the  full  range  of \ninitial  benefits not  only as  a  result  of her alleged foot injury,  but  due  to  alleged \ninjuries to her right hand and “other body parts.”  A hearing request accompanied \nthis filing.  Respondents’ co-counsel entered his appearance on March 16, 2023; \nand in a letter to the Commission on March 24, 2023, he reiterated their position \nexpressed in the Form AR-2. \n The file was assigned to me on March 29, 2023.  On April 4, 2023, I issued \nprehearing questionnaires to the parties.  Claimant filed a timely response thereto \non  April  24,  2023,  and  Respondents  followed  suit  on  May  2,  2023.   Following  a \nprehearing  telephone  conference  on  June  19,  2023,  I  issued  a  prehearing  order \nthat scheduled a hearing for September 1, 2023, on the following issues: \n1. Whether Claimant sustained a compensable injury to her right hand \nand left foot by specific incident. \n\nKEY – H300727 \n \n3 \n \n2. Whether  Claimant  is  entitled  to  reasonable  and  necessary  medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \nHowever, on August 17, 2023, Claimant requested that the hearing be cancelled \nand that the file be returned to the Commission’s general files.  In support of this \nrequest,  he  related  that  his  client  failed  to  appear  for  her  August  14,  2023, \ndeposition, and that he had been unable to reach her by phone.  The request was \ngranted. \n On October 6,  2023, Caldwell moved  to  withdraw  from  the  case.   His \nmotion includes the following allegation: \nThe   undersigned   has   lost   contact   with   the   Claimant.      The \nundersigned  has  sent  letters,  emails  and  attempted  to  contact  the \nClaimant at all known telephone numbers to no avail. \n \nIn an Order ended on October 24, 2023, the Full Commission granted the motion \nunder AWCC Advisory 2003-2. \n The record reflects that nothing further took place on the claim until March \n19, 2024.  On that date, Respondents filed the instant motion and brief in support \nthereof, asking  for dismissal  of  the  claim  under  AWCC  R. 099.13 and  Ark.  Code \nAnn. § 11-9-702  (Repl.  2012).    My  office  wrote  Claimant  on March  21,  2024, \nasking  for  a  response  to  the  motion  within  20  days.    The  letter  was  sent  by  first \nclass and certified mail to the Jonesboro address of Claimant listed in the file and \n\nKEY – H300727 \n \n4 \n \non her Form  AR-C.   The  certified  letter was  returned  to  the  Commission, \nunclaimed,   on   May   28,   2024; but the   first-class   letter   was   not   returned.  \nRegardless, no response from Claimant to the motion was forthcoming.  On May \n17, 2024, a hearing on the Motion to Dismiss was scheduled for July 5, 2024, at \n1:30 p.m.  at  the Craighead County  Courthouse  in Jonesboro.    The  notice  was \nsent  to  Claimant  via  first-class  and  certified mail  to the  same  address  as  before.  \nIn this instance, the United States Postal Service could not confirm that Claimant \nclaimed the certified letter; but the one sent by first-class mail was not returned to \nthe Commission. \n The  hearing  on the  Motion to  Dismiss proceeded  as  scheduled  on July 5, \n2024.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n\nKEY – H300727 \n \n5 \n \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Respondents have proven by a preponderance of the evidence that \nClaimant has failed to prosecute her claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial \nbenefits  is  hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nKEY – H300727 \n \n6 \n \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin pursuit of it (including appearing at the July 5, 2024, hearing to argue against its \ndismissal) since the cancellation of the hearing on the claim on August 17, 2023.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause of this finding, it is unnecessary to address the application of § 11-9-702. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nKEY – H300727 \n \n7 \n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":8804,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H300727 LELA KEY, EMPLOYEE CLAIMANT KEDRION BIOPHARMA, INC., EMPLOYER RESPONDENT BANKERS STD. INS. CO., CARRIER RESPONDENT OPINION FILED JULY 8, 2024 Hearing before Administrative Law Judge O. Milton Fine II on July 5, 2024, in Jonesboro, Craighead County, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:55.274Z"},{"id":"alj-G501118-2024-07-03","awccNumber":"G501118","decisionDate":"2024-07-03","decisionYear":2024,"opinionType":"alj","claimantName":"Lettie Curtis","employerName":null,"title":"CURTIS VS. DILLARDS, INC.AWCC# G501118July 3, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CURTIS_LETTIE_I_G501118_20240703.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CURTIS_LETTIE_I_G501118_20240703.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No G501118 \n \nLETTIE I. CURTIS, EMPLOYEE        CLAIMANT \n \nDILLARDS, INC., EMPLOYER                RESPONDENT \n    \nSAFETY NATIONAL CASUALTY CORP./ \nGALLAGHER BASSETT SERVICES, INC., CARRIER/TPA       RESPONDENT \n \n \nOPINION FILED 3 JULY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 3 April 2024 in Little Rock, Arkansas. \n \nThe claimant appeared pro se. \n \nMr. Rick Behring, of Newkirk & Jones Law Firm, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 3 April 2024 in Little Rock, Arkansas, after \nthe parties participated in a pre-hearing telephone conference on 30 January 2023. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on the same day as the conference. The Order stated that the ISSUE TO BE \nLITIGATED was whether the claimant was entitled to additional benefits for her accepted \nfoot injury of 13 February 2015. Namely, she sought temporary total disability (TTD) \nbenefits for three different time periods:\n1\n from April to October in 2023; from 20 November \n2023 to 31 January 2024; and from 31 January 2024 to a date yet to be determined. \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire \nResponses, were incorporated into the Prehearing Order.  \n \n1\n See TR at 14 to 15 for the claimant’s clarification on the timeframes during which she \nseeks TTD benefits. \n\nCURTIS- G501118 \n2 \n \nPer the claimants CONTENTIONS, she is entitled to time loss reimbursement for a lack \nof reasonable accommodations at different times during her employment. She contends that \nshe should be reimbursed via an award of TTD benefits for those times. \nPer the respondents’ CONTENTIONS, the claimant has been paid all benefits to \nwhich she is entitled. Her claim was accepted as compensable, and whether they provided \nreasonable and necessary medical treatment is not at issue. Permanent partial disability \n(PPD) benefits and TTD benefits have been paid. Specific to her contention that she is \nentitled to additional TTD benefits, they further contend that the claimant was released at \nmaximum medical improvement (MMI) on 20 January 2016. She was, thereafter, offered \nwork within her permanent work restrictions. They contend that even if she was within a \nhealing period during the time she seeks benefits, they are not liable for the same under \nACA § 11-9-526. Finally, the respondents reserve the right to seek a credit or offset for any \nbenefits sought by the claimant in an Equal Employment Opportunity Commission \n(EEOC). \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on or about 13 February 2015 \nwhen the claimant sustained injuries to her right shoulder and right foot as the result of \na specific incident. \n \n3.  The respondents accepted the claim as compensable and began paying benefits \nassociated with her accepted injuries. \n \n4.  The respondents accepted and paid permanent anatomical impairment ratings \nassigned to the claimant’s right shoulder at seven percent (7%) of the body as a whole \nand the right foot at seventy-four percent (74%). \n \n5.  The claimant earned an average weekly wage of $524.17, entitling her to a TTD rate \nof $350 and a PPD rate of $263. \n \n\nCURTIS- G501118 \n3 \n \n6.  The claimant continued her employment with the respondent up to the date of her 31 \nJanuary 2024 resignation.\n2\n \n \nThe following WITNESSES testified at the hearing: \nThe claimant testified on her own behalf and called Ms. Rachel Angelica Curtis; while \nthe respondents called Mr. Marty Martin. \n \nThe EVIDENCE presented consisted of the testimony along with Commission’s \nExhibit No 1 (the 5 December 2023 Prehearing Order), Claimant’s Exhibit Nos 1 (38 pages of \nmedical and non-medical records), 2 (one page form for work restrictions), 3 (six pages of \nmedical records), 4 (seven pages of medical records), 5 (one page of printed photos), 6 (six \npages of medical records), and 7 (ten pages of FMLA forms); and Respondents’ Exhibit Nos 1 \n( one index page and a subsequent thirty-two pages of medical records) and 2 (one index \npage and a subsequent twenty pages of non-medical records).  \nPost-hearing briefs were submitted by both parties and have been blue-backed to \nthis Opinion. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the \nwitnesses, observing their demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that she is entitled \nto any additional TTD benefits. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \nClaimant Lettie Curtis \n \n2\n See TR at 13 to 14. \n\nCURTIS- G501118 \n4 \n \nThe claimant began working for Dillard’s in 2012 as a picker in their fulfillment \ncenter for online orders. She suffered a workplace injury on 13 February 2015 when she \naccidentally stepped from an elevated cherry picker platform and briefly caught herself \nbefore dropping down to the floor. As a result of that fall, the claimant suffered injuries to \nher right foot and right shoulder, and the respondents provided medical treatment \naccordingly. Her claims in this litigation are only related to the compensable injury to her \nfoot. \nAfter undergoing surgery and other treatments, the claimant was returned to work \nwith restrictions on 18 June 2015; and “from 2015 to 2022, everything was fine.” [TR at 47.] \nDr. Ruth Thomas placed the claimant at MMI related to her foot injury on 20 January \n2016, with permanent light duty restrictions and a permanent impairment rating. [Resp. \nEx. No 1.] The claimant testified that after her return to work, she was given a permanent \njob in the returns department, and that, “our department sometimes run out of work or the \ntruck don’t bring much, and it don’t show up. When that happens, we’re sent out to other \ndepartments to do work, so we won’t have to go home and [can] still get paid.” [TR at 47.] \nAfter her regular work was completed, she would often put together boxes or clean up. \nThe claimant testified that at some point she was assigned to do “recon” after her \nprimary work assignments were completed. She described recon as inventory work, \nscanning barcodes on merchandise. She testified that she did not have a problem using a \nrolling chair to scoot along and scan the merchandise, but eventually had some trouble with \nproduction after a quota of scans per hour was raised. The claimant discussed this with Dr. \nRobert Martin, who wrote a letter stating, among other things, that she remained at MMI, \nthat her work should be “mostly sedentary duty,” and that he recommended her scan quota \nto be no more than “150 per hour when sent to an alternate area.” [Cl. Ex. No 4.] \n\nCURTIS- G501118 \n5 \n \nIn August of 2023, the claimant developed an open wound on her foot that she \ndescribed as making the recon work more difficult. She said that if she could not make \nboxes or do cleaning for alternate work, she would go home instead. [TR at 83.] The \nclaimant stated that after 20 November 2023, she started calling in sick rather than going \ninto work and possibly being assigned to recon if she finished her primary work. [TR at 94.] \nShe said that she was given the option to change shifts to a time with more primary work, \nbut that she was not being helped by an advocate, so “[she] was just going to sit at home. \nAnd so – and just let [her] foot heal.” [TR at 95.] She also testified that she was offered a \nwheelchair to use at work, but said that she could not roll it on her own and that she would \nneed an electric wheelchair instead. [TR at 96.] She acknowledged, however, that no \nphysician had ordered a wheelchair and that, instead, it was offered to her by Marty \nMartin, one of her managers. [TR at 98.] \nAfter the claimant began missing more work towards the end of 2023, she had her \nprimary care physician Dr. Brian Mason fill out some paperwork to support a change from \nintermittent Family Medical Leave Act (FMLA) leave to continuous FMLA leave. [TR at \n101.] She explained that she is seeking TTD between 20 November 2023 and 31 January \n2024 because of the dates provided by Dr. Mason on those forms. [Cl. Ex. No 7.] The \nclaimant stated that she saw her supervisor Marty Martin when she was turning in her \nFMLA papers on 21 December 2023 and that he asked when she planned to return to work. \nShe responded that she would be back on January 31\nst\n. [TR at 104.]  \nAt some point after submitting her FMLA papers, the claimant ran into some \ncoworkers out at lunch and spoke with one of them on the phone afterwards. [TR at 104-\n105.] After that encounter, she “decided that I’m – I’m not going to return to Dillard’s, \nbecause of a hostile work environment.” [TR at 106.] \n\nCURTIS- G501118 \n6 \n \nOn cross examination, the claimant acknowledged that the respondents continued to \npay for her medical treatment after she returned to work in 2015. [TR at 114.] She also \nacknowledged that the respondents paid for the permanent impairment ratings for her \nshoulder and foot injuries and that she received no permanent restrictions associated with \nher shoulder injury. [TR at 116 to 117.] The claimant agreed that her job working in \nreturns for Dillard’s was within her restrictions and that she was offered a change in her \nshift time. [TR at 119 to 120.] When her work handling returns was complete, she felt like \nputting together boxes or putting labels on boxes was within her restrictions. \nThe claimant confirmed that, at least by November of 2023, she knew that she would \nnot be responsible for any scanning quotas when working recon after her return work was \ncompleted. She also confirmed that she was allowed to use a rolling chair and stool in the \nrecon area and that she liked being able to do cleaning work from her chair and stool. [TR \nat 122.] \nDiscussing the wound that she developed in August of 2023, the claimant stated that \nshe was diagnosed with a bacterial infection and did not know whether it happened at \nwork. [TR at 127 to 128.] The claimant acknowledged that Dr. Mason completed her FMLA \npapers because of the wound on her foot. \nQ:  This was a period of time where you were having even an extra bit of \ntrouble, because of the wound you were having on your foot, is that correct? \nA:  Yes. Yes. \nQ:  And that’s what you told Dr. Mason, is that correct? \nA:  Yeah, yes. \nQ:  At least that’s what is reflected in the reports, is that correct? \nA:  Yes. \nQ:  And that’s the reason that you had gotten the FMLA reports from Dr. \nMason. It was this wound that you had on your foot, is that correct? \nA:  Yes. \nQ:  All right. Thank you. And you had mentioned something and I just want \nto show you Respondents’ Exhibit 1 at page 29 is from November of 2023, and \nat least according to his report, Dr. Martin says the wound is completely \nhealed? \nA:  Yes. I explained in my – \n\nCURTIS- G501118 \n7 \n \nQ:  Okay. \n \n[TR at 132.] \n The claimant took issue with the medical records stating that she was at MMI and \nhad not reentered a healing period since she was placed at MMI. “They put me at maximum \nmedical improvement, because I – I didn’t want to do surgery at the time.” But she \nacknowledged that while some surgical intervention(s) might have remained an option for \nher foot, she remained at MMI and outside of a healing period until such a time as she \nchose to pursue a surgical course. [TR at 138 to 139.] She pointed to Dr. Thomas’ statement \nthat, “If she elects a change in medical or surgical management, this MMI would likely \nchange.” as support for her opinion that her care was ongoing. [TR at 141.] “I’ve been going \nto the doctor for the past nine years, because I need orthotic inserts every single year; so \nthat’s why I didn’t want to close—close my claim, because I need them to pay for it.” [TR at \n142.] \nClaimant’s Witness Ms. Rachel Curtis \n The witness began her testimony be acknowledging that she was the claimant’s \ndaughter, but also that she worked at the respondent-employer’s fulfillment center between \n2017 and 2021. [TR at 146.] She also worked in the returns department and testified that \nthe department had box preparation machines that could not always “keep up” with the \nworkflow of boxes. The witness further testified that returns department employees could \nbe sent into other areas when their assigned work was complete. She did not see the \nclaimant working in recon after her shift work. [TR at 147 to 149.] She further testified that \nshe witnessed the claimant in pain at times following her workplace accident and that at \ntimes the claimant had trouble with her mobility.  \nOn a brief cross examination, the witness acknowledged that she had no personal \nknowledge about the workplace after leaving the respondent’s employ in 2021. [TR at 156.] \n\nCURTIS- G501118 \n8 \n \nRespondents’ Witness Mr. Marty Martin \n Mr. Martin testified that he had worked for Dillard’s for thirty-two years and that \nhe was the general manager of the fulfillment center where the claimant had worked \nduring the entire course of her employment. [TR at 158.] He stated that after the claimant’s \nreturn to work, the respondents made accommodations to comply with her restrictions, \nincluding providing a desk, rolling chair, and a stool to help elevate her foot. [TR at 159.] \nMr. Martin explained that when the claimant first complained about working in recon after \nher primary job duties, she was offered a change in her shift time to better align her \nworking hours with the times that the returns usually arrived. She refused the shift \nreassignment. \n Regarding the boxes the claimant preferred to work with, the witness testified that \nin 2021 the facility installed more box machines and streamlined the manual work input for \nbox sizes that did not work with the machines. He agreed with Rachel Curtis’ testimony \nthat there were times prior to 2021 that the older machines had trouble managing the \nnumber of boxes needing to be processed. But he stated that since the machinery changes \nand additions in 2021, that was no longer accurate. [TR at 161.]  \n Mr. Martin testified that the claimant’s restrictions were accommodated both in her \nprimary job duties and when she was occasioned to work in recon, stating that recon is not \nordinarily a sit-down job, but that she was allowed to work from her chair. He further \nexplained that when the claimant complained about the scanning quotas changing in recon, \nhe had a discussion with her and advised that she would not be held to the higher \nproduction standards. [TR at 163.] He confirmed that when work loads were low, employees \ncould go home without penalty or use vacation time.  \n Had the claimant not voluntarily resigned from her position, her job would still be \navailable to her and her accommodations would still be in place, he said. [TR at 164.] Mr. \n\nCURTIS- G501118 \n9 \n \nMartin also said that he ordered a wheelchair with an attachment to elevate her leg, \nwithout the claimant requesting it, simply because he thought that it might be helpful to \nher. [TR at 165.] He testified that the clerical positions in the facility were not “just a desk \njob” and that those jobs would also require accommodation for someone with the claimant’s \nrestrictions. [TR at 167.]  \nMedical Records \n On 20 January 2016, Dr. Ruth Thomas found the following: \nBased on examination and interview today Mrs. Curtis has reached \nMaximum Medical Improvement in reference to her right calcaneus fracture. \nIf she elects a change in medical or surgical management this MMI would \nlikely change. \n \n[Resp. Ex. No 1 at 3.] \n \n On 30 March 2023, the claimant saw Dr. Martin for a follow-up appointment, and he \nnoted that her status remained unchanged and that she still did not have any interest in \nsurgical intervention. [Resp. Ex. No 1 at 11.]  \n A 21 April 2023 note reflects her report of trouble with quotas at work and suggests \nlimiting her quota to 150 per hour. It also stated that she remained at maximum medical \nimprovement. [Resp. Ex. No 1 at 19.] \n She saw Dr. Martin again on 17 August 2023 for a wound on her ankle. She denied \nany recent injury or causal event. He made no changes to her work restrictions because of \nthe wound. [Resp. Ex. No 1 at 20, 23.] \n Dr. Martin checked the wound again on 24 August 2023 and made no change to her \nwork restrictions. [Resp. Ex. No 1 at 26.] \n A follow-up in October noted significant healing, made no change to her work status, \nand set her for another appointment in one month. [Resp. Ex. No 1 at 28.] \n\nCURTIS- G501118 \n10 \n \n The claimant saw Dr. Martin again on 9 November 2023, when he noted the “recent \nwound now resolved.” He also stated that her “permanent work restrictions remain \nunchanged....” [Resp. Ex. No 1 at 29.] \n On 7 March 2024, the claimant saw Dr. Martin again, and he, again, found that “she \nremains at maximum medical improvement” and stated no change to her permanent \nimpairment rating or work restrictions. [Resp. Ex. No 1 at 32.] \n \nIV.  ADJUDICATION \nThe stipulated facts are outlined above and accepted as fact. It is settled that the \nCommission, with the benefit of being in the presence of the witnesses and observing their \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 \n(1999).   \nA.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT SHE IS ENTITLED TO ANY ADDITIONAL TTD BENEFITS. \n \nThe claimant suffered a workplace accident in February of 2015 and sustained \ncompensable injuries that were accepted by the respondents, who began paying benefits \naccordingly. She was provided treatment for her injuries and eventually returned to work \nwith restrictions in June of 2015. At issue in this litigation is whether the claimant is \nentitled to additional TTD benefits associated with her foot injury, which is a scheduled \ninjury. See ACA § 11-9-521(a)(11). She received a permanent disability rating for her foot \ninjury in 2016, which was paid, and she was placed at MMI with permanent restrictions at \nthe same time. By her own testimony, she worked with appropriate accommodations and \nwithout issue through 2023. She has failed to provide a preponderance of evidence to \nsupport her claim that she is entitled to any additional TTD benefits since her placement at \nMMI in 2016. \n\nCURTIS- G501118 \n11 \n \n For a scheduled injury, a claimant is entitled to TTD benefits during her healing \nperiod or until she returns to work, whichever happens first. Wheeler Constr. Co. v. \nArmstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001). The healing period is that period for \nhealing of the injury which continues until the employee is as far restored as the \npermanent character of the injury will permit. Nix v. Wilson World Hotel, 46 Ark. App. 303, \n879 S.W.2d 457 (1994). If the underlying condition causing the disability has become stable \nand if nothing by way of treatment will improve the condition, the healing period has \nended. Id. Whether an employee’s healing period has ended is a factual determination for \nthe Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995).  \nA claimant must prove her entitlement to TTD benefits by a preponderance of the \nevidence. Ark. Code Ann. § 11-9-705(a)(3). Preponderance of the evidence means the \nevidence having greater weight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil \nCo., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nHere, the claimant argues that she is entitled to TTD benefits for three separate, \nthough consecutive, periods. She fails to prove by a preponderance of the evidence that she \nis entitled to TTD benefits for any of those periods of time.  \nAs a threshold matter, I find that the healing period for her scheduled foot injury \nended on 20 January 2016, when she was placed at MMI by Dr. Thomas. The Commission \nmay accept or reject a medical opinion and determine its probative value. Poulan Weed \nEater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002). I accept Dr. Thomas’ opinion as \naccurate, and by the claimant’s own testimony, she experienced no problems at work for \nyears afterwards. \nThe claimant seems to urge that her healing period never ended because Dr. \nThomas left open the possibility that, at some point, she could elect for a surgical \n\nCURTIS- G501118 \n12 \n \nintervention for her, otherwise, already stable foot injury. She argued the same at the close \nof her hearing, stating, “I have continuously, consecutively for the past nine years received \ntreatment for my workers’ comp claim injury and is still under physician’s care.” [TR at \n178.] While such an election, as noted by Dr. Thomas, may have resulted in the claimant \nreentering a healing period post-surgically, absent some surgical intervention, she \nremained at MMI and outside of a healing period. Indeed, the medical records from Dr. \nMartin make clear that she remained at MMI in March and April of 2023 and in March of \n2024. [Resp. Ex. No 1 at 14, 19, and 32.] She cannot not prevail on her claim simply because \nthe respondents continued to provide some medical benefits in the years after her \nplacement at MMI. A claimant may be entitled to ongoing management treatment, such as \nin this claim, after the healing period has ended. S. Tire Mart v. Perez, 2022 Ark. App. 179, \n644 S.W.3d 439 (2022). \nThe claimant attempts to argue that the wound she experienced on her foot caused \nher to be unable to work; and that wound appears to be the basis for her claim for benefits \nbetween November 2023 and January of 2024. She submitted her FMLA papers from her \nPCP in support of that notion. [Cl. Ex. No 7.] I find those forms to be of very limited \nevidentiary weight. See Poulan, supra. The forms are provided with no supporting records \nor clinic notes. Also, they are clearly inconsistent in that they reference Dr. Martin’s 9 \nNovember 2023 appointment while claiming continuous impairment from 20 November \n2023 to 31 January 2024. Dr. Martin’s November note, however, states, “the area of \nprevious wound formation has completely resolved, healed. There is no drainage, no open \nwound today.” And it goes on to state, “Her permanent work restrictions remain \nunchanged, sedentary duty only, she will follow-up with me as needed.” [Resp. Ex. No 1 at \n29.] I find Dr. Marten’s opinion and notes to be more credible and supportive of the notion \nthat her work status was unchanged by the wound. See Poulan, supra. The claimant did \n\nCURTIS- G501118 \n13 \n \nnot argue that the wound was a compensable consequence, and she acknowledged that she \ndid not know the source or cause of the wound. Even if she did, the evidence would not \nsupport such a finding. \nAs for her claim for TTD benefits from 31 January 2024 to a date yet to be \ndetermined, the claimant’s voluntary resignation from employment is not evidence of her \ninability to work. She even testified that she intended to return at the end of January until \nan encounter outside of work with some coworkers.  \nIn sum, the claimant failed to prove by a preponderance of the evidence that she \nentered a new healing period at any time after her the healing period for her foot injury \nended in early 2016. Her claim for additional TTD benefits fails accordingly. \nV.  ORDER \n     Consistent with the Findings of Fact and Conclusions of Law stated above, this claim is \ndenied and dismissed.  \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":23977,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G501118 LETTIE I. CURTIS, EMPLOYEE CLAIMANT DILLARDS, INC., EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY CORP./ GALLAGHER BASSETT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED 3 JULY 2024 Heard before Arkansas Workers’ Compensation Commission (AWC...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:2"],"injuryKeywords":["shoulder","back","fracture","ankle"],"fetchedAt":"2026-05-19T22:50:51.050Z"},{"id":"alj-H207643-2024-07-03","awccNumber":"H207643","decisionDate":"2024-07-03","decisionYear":2024,"opinionType":"alj","claimantName":"Daraphone Saegsatheuane","employerName":null,"title":"SAEGSATHEUANE VS. TRANE COMMERCIAL SYSTEMSAWCC# H207643July 3, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SAEGSATHEUANE_DARAPHONE_H207643_20240703.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SAEGSATHEUANE_DARAPHONE_H207643_20240703.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H207643 \n \nDARAPHONE SAEGSATHEUANE, EMPLOYEE CLAIMANT \n \nTRANE COMMERCIAL SYSTEMS, EMPLOYER RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, CARRIER RESPONDENT \n \n \n OPINION FILED JULY 3, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On June 18, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on April 4, 2024, and a pre-hearing order was filed on that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   All prior Opinions are res judicata. \n 3.   The employee/employer/carrier relationship existed on November 3, 2021. \n 4.   Compensation rates are not an issue.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \n were limited to the following: \n\nSaegsatheuane-H207643 \n2 \n \n1.  Whether claimant is entitled to medical benefits, specifically ESI injections, and \n prescriptions medications.  \n 2.  Whether claimant is entitled to temporary total disability benefits from August 10, 2023, to \n August 23, 2023, in the amount of $1,046.50. \n3.  Attorney’s fees on said temporary total disability benefits in the amount of $299.00. \nAll other issues are reserved by the parties. \nThe parties announced that issue #2 was resolved by the parties before the hearing, making \nissue #3 moot.  \nThe claimant contends that “That her authorized treating physician has recommended cervical \nepidural  steroid  injection  at  C5-6  and  the  respondents  have  refused  to  authorize  that  injection. \nClaimant’s attorney requested respondents’ attorney to reconsider the non-certification;  however, \nalthough the request was made more than 3 weeks ago, it is the claimant’s understanding that the \ninjection has still not been approved. The claimant contends entitlement to prescription medications \nprescribed by her authorized treating physician. Claimant was seen by her authorized treating physician \non February 19, 2024, and was prescribed pain medication and muscle relaxers to which the pharmacy \nhas been unable to obtain authorization for the prescribed medications.” \nThe respondents contend that “The ESI injections are not reasonable, necessary, or related to \nthe work injury. Respondents contend they are paying all reasonable, necessary, and related medical \ntreatment.”   \n From a review of the entire record including medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony \nof the witnesses and to observe their demeanor, the following findings of fact and conclusions \nof law are made in accordance with A.C.A. §11-9-704: \n\nSaegsatheuane-H207643 \n3 \n \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on \nApril 4, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as \nfact. \n 2.  Claimant has met her burden of proof by a preponderance of the evidence that she \nis  entitled  to  additional  medical  benefits  from  Dr.  Brent  Whatcott  for  her  neck  and  left \nshoulder injury. \n FACTUAL BACKGROUND \n This  matter  was  previously  before  this  court for  a  hearing  on March  21,  2023. An \nopinion was rendered on June 15, 2023, in which I found, among other things, that claimant \nhad  met  her  burden  of  proof  that  she  was  entitled  to additional  medical  benefits  from  Dr. \nBrett Whatcott for her neck and left shoulder injury. That opinion was not appealed to the \nFull Commission, and the parties have stipulated that it is res judicata for this hearing.  \nHEARING TESTIMONY \n \n Claimant says she has been under Dr. Brett Whatcott’s treatment since the last hearing \nin this case.  She testified that her left shoulder was still very painful and that sometimes it gets \nnumb. She believes her condition is getting worse. Claimant denied receiving any injections \nfor  her  shoulder  and  is  currently  taking  painkillers  and  muscle  relaxers  (Hydrocodone, \nAcetaminophens, and Tizanidine, HCL 4mlg.). She said she was having to use Medicaid to get \nthe painkiller filled because workers’ compensation had not been paying for it. Claimant denied \nany new injury since the job-related accident. \n On  cross-examination,  claimant  said  that  she  spends  her  day  now  driving  her  kids \naround  to  games,  church,  and  practice. She  cooks  dinner  but does  not lift  anything  heavy \n\nSaegsatheuane-H207643 \n4 \n \n \nbecause  her  hand  is  very  numb  and  painful. She  stated  that  she  did  physical  therapy  until \nworkers’ compensation denied the claim. She wanted to do more but it was denied. Claimant \nrecalled that she had an injection which initially did not help but after a while it did. Her doctor \nrequested some more, and it was denied. Claimant was shown the report from Dr. Whatcott \nfrom July 18, 2023, which showed normal findings, including no tenderness or spasms, normal \nlordosis, and a normal range of motion for her age. Claimant said during that visit, she was \nonly feeling pain in her shoulder but not as painful throughout her arm.  Claimant first denied \nthat the doctor had done an examination but when questioned further, she conceded that he \ndid physically touch her in July 2023. \n Claimant  says  that  she  does  not  do  long  drives  but  is  able  to  do  short  ones  to  go \ngrocery shopping. She cleans around the house, washing dishes, and clothes. She sometimes \nvacuums but when she cannot her son does the vacuuming. Claimant has not looked for work \nbecause of the pain she has at night and when she sits for very long, her neck is very painful.   \n On redirect-examination, claimant confirmed that her main problem is on her left side, \nwhich is where there is a disc herniation at C5-6. She said again that the pain interferes with \nher ability to sleep and that she treats it by heating a towel to put on her neck and shoulders. \nShe said the pain starts in her shoulder and goes down her arm.  \nREVIEW OF THE EXHIBITS \n Claimant submitted a few records from her treating physician, Dr. Whatcott, which \nwere  prepared since  the  last  hearing  in  this  matter. On  June  19,  2023,  he saw  claimant  and \nrecorded what she told him. Among other things, claimant reported that her current course \nof treatment had caused her to sleep better and do routine activities. An occipital nerve block \nwas mentioned.  \n\nSaegsatheuane-H207643 \n5 \n \n \n She returned to see Dr. Whatcott on July 18, 2023, and his record of that visit included \nmore history than the previous one. The most notable entries are as follows:  \n1. Cervical radiculopathy- \n07/18/2023 We are reordering PT as she has not heard from them \nyet. Her attorney is trying to help so we can get her the CESI that she \nneeds. Of note, it is well documented in medicine that the longer there \nis pressure from a disc on a spinal nerve root, the greater the chance \nof permanent nerve damage. \n \n06/19/23 PT notes received dated 05/16/23. However, I don’t know \nwhat else really to do as worker’s comp is denying every treatment. \nApparently, they are requiring more PT, I will order this. \n \nHas received her TENS unit, already. \n \nHer insurance is denying CESI yet again. This is after failing PT which \nthey  requested. She would like TENS unit.  Furthermore, worker’s \ncomp will not pay for pain medication. \n \nA cervical epidural is indicated and considered medically necessary for \nthis patient based on the following: \n \n• Radiculopathy \n• Disc displacement \n• Spinal stenosis \n• Pain level of >=5 \n• Pain lasting longer than 3 months \n• Inadequate  pain  relief  from  NSAID,  physical  therapy,  exercises, \ntopical, lifestyle changes etc. \n \nRepeat  MIR  reviewed with  same  findings  as CT. Disc  herniation  at \nC5-C6,  but  now  with  bilateral  foraminal  stenosis,  left  greater  than \nright. This  suggests  that  the  disc  herniation  has  progressed. Started \nPT on 02/14. It is not helping. She wants to be off of opiates for now \nso I will add muscle relaxers. \n \nHaving  worsening  neck  pain,  we  need  to  proceed  with  CESI. Still \nfighting  worker’s  comp  over  this. Pain   continues   to   worsen. \nApparently, they are requiring outpatient physical therapy.  I will order \nthis through Mercy and will get a new MRI to evaluate any changes. \nNo refills needed today. \n \nCT reviewed. Left sided disc herniation at C5-C6. Based on failure of \n\nSaegsatheuane-H207643 \n6 \n \n \nshoulder  treatments,  this  must  be  the  source  of  pain  as  it  is  on  the \nsame side.  \nM54.12: radiculopathy, cervical region \n• Tizanidine  4  mg  tablet- Take  1  tablet(s)  every  day  by  oral  route  at \nbedtime for 30 days. Qty (30) tablet refills: 5 Pharmacy CVS 17357 \nIN TARGET \n• PHYSICAL    THERAPIST    REFERRAL – Schedule Within: \nprovider’s discretion \nReason for Referral: Evaluate and treat \n \n2. Long-term drug therapy – \nShe  was  able  to  get  at  least  a  seven-day  script  of  tramadol  from  her \nPCP. I am ok with this as we are not having any luck getting her some \nmedicine. UDS and PMP as expected. \nZ79.899: Other long-term (current) drug therapy.\n1\n \n \n   \n Respondent  submitted an  internal  Utilization  Review  Determination by  Dr.  Edrick \nLopez. The relevant parts of it are reproduced below:      \nCervical epidural steroid injection C5-6 is Non-Certified \nODG by MCG(www.mcg.com/odg), Evidence-based Medical treatment Guidelines, Section: \nPain: Epidural Corticosteroid Injection \nReviewer’s Conclusion & Comments \nThis is a 50-year-old who sustained an industrial injury on 11/3/2021. \nThe individual was working full-time. Per the office visit by Kristina \nDean, APRN-FNP, on 01/03/2024, there was documentation of neck \npain,  related  8/10  radiating  to  the  bilateral  shoulders  down  to  the \nfingers. The   individual   was   taking   hydrocodone   currently. The \nindividual had an injection in 2015 which helped somewhat. The PT \ndid not help with the pain. With the current treatment, the individual \nwas able to do routine activities, and the pain level, ability to sleep, and \noverall  function  had  improved  significantly. The  cervical  spine  MRI \ndated 01/30/2023 revealed degenerative changes most pronounced at \nC5-C6  with  grade  1  retrolistheses,  mild-to-moderate spinal  stenosis, \nand  mild  bilateral  neuroforaminal  stenosis. The  neck  exam  revealed \ntenderness. The  left  upper  extremity  exam  revealed  tenderness  and \n \n1\n In this one chart entry, I count at least five references to difficulties claimant was having getting respondents \nto provide her with the benefits I had previously awarded. \n\nSaegsatheuane-H207643 \n7 \n \n \npainful and restricted ROM. The diagnosis was cervical radiculopathy. \nPer the UR decision dated 05/03/2023, the request was non-certified. \n \nThe request is for cervical epidural steroid injection C5-C6. Per the \nODG, it is recommended for cervical radiculopathy when there is a \nfailure to respond > 1 weeks of conservative care. Cervical ESI is not \nrecommended at levels above C6-C7 or C7-T1. In this case, per prior \nUR Determination dated 05/03/2023, the request for cervical ES at \nC5-6 was non-certified as there were no abnormal neurologic findings \non  the  exam  and  no  indication  of  exhaustion  of  conservative  care. \nThe  updated  records still lack evidence  of  objective  findings of  any \nmyo-comal    or    derma-comal    deficits    suggesting    nerve    root \ncompression  or  neurological  deficits. Further,  records  indicate  the \nindividual’s overall function and pain level had improved with the \ncurrent  treatment  regimen  thus  questioning  the  need  for  additional \ntreatment. Also, the guidelines do not recommend cervical ESI above \nC6-7 or C7-T1. Hence considering these facts the request for Cervical \nepidural steroid injection C5-C6 is non-certified.  \n \nADJUDICATION \n \n I had a sense of déjà vu as I read the record in this matter. In my previous opinion on \nthis issue of additional medical care, I said:  \n“It  was  stipulated  that  claimant  had  a  compensable  injury  on \nNovember 3, 2021. Once it has been established that a claimant has \nsustained a compensable injury, she is not required to offer objective \nmedical  evidence  to  prove  entitlement  to  additional  benefits, Ark. \nHealth Ctr. v. Burnett, 2018 Ark. App. 427, at 9, 558 S.W.3d 408, 414. \n \nThe evidence on this point boils down to whether the testimony of \nthe  claimant  and  the  opinion  of  her  treating  physician  is  more \npersuasive  than  the  report  of  a  doctor  who only  reviewed  records \nprovided  to  him.  I  find  Dr.  Whatcott's  recommendation  is  more \ncredible in light of the conservative care claimant has received to this \npoint  in  her  course  of  treatment,  and  therefore  claimant's  proof  is \nsufficient to support her request for continued medical treatment for \nher compensable injury.”  \n \n Nothing in the current record has changed my mind. The Utilization Review cited a \nprevious review that denied benefits which was relevant mainly to show yet another instance \nwhere respondent had denied claimant treatment that had been recommended by her treating \n\nSaegsatheuane-H207643 \n8 \n \n \nphysician. It  also  used  the Official  Disability  Guidelines  instead  of  the proper  standard  in \nArkansas, The AMA Guides To The Evaluation Of Permanent Impairment, 4\nth\n Edition. I again find \nclaimant to be a credible witness and that the report of Dr. Whatcott is more persuasive than \nan  opinion  of  a  physician  that  (a)  has  not seen  the  claimant and  (b)  used a criterion that  is \nirrelevant to making a decision under Arkansas law.   I find Dr. Whatcott’s remark from almost \na year ago to be most concerning:  “...it is well documented in medicine that the longer there \nis  pressure  from  a  disc  on  a  spinal  nerve  root,  the  greater  the  chance  of  permanent  nerve \ndamage.”    \n Respondents’ continued denial of treatment as recommended by her treating physician \nand  as  previously  awarded  in  this  case  is  inexcusable.  Such may  well  end  up  costing  them \nmore money in the long run, but more importantly, it may cause a permanent injury to claimant \nthat could be avoided with appropriate and timely care.  \nORDER \n \n Claimant has met her burden of proving by a preponderance of the evidence that she \nis  entitled  to  additional  medical  treatment  as  recommended  by  Dr. Whatcott for her \ncompensable injury, including ESI injections and prescription medications.  \n Respondent is responsible for paying the court reporter her charges for preparation of \nthe transcript. \n IT IS SO ORDERED. \n \n \n                                                                                               \n_______     \n        JOSEPH C. SELF \n       ADMINISTRATIVE LAW JUDGE","textLength":15445,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207643 DARAPHONE SAEGSATHEUANE, EMPLOYEE CLAIMANT TRANE COMMERCIAL SYSTEMS, EMPLOYER RESPONDENT TRAVELERS INDEMNITY COMPANY, CARRIER RESPONDENT OPINION FILED JULY 3, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian Count...","outcome":"denied","outcomeKeywords":["granted:1","denied:2"],"injuryKeywords":["cervical","neck","shoulder"],"fetchedAt":"2026-05-19T22:50:53.203Z"},{"id":"alj-H108193-2024-07-02","awccNumber":"H108193","decisionDate":"2024-07-02","decisionYear":2024,"opinionType":"alj","claimantName":"Jerry David","employerName":null,"title":"DAVID VS. NWMC BENTON CO.AWCC# H108193July 2, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DAVID_JERRY_H108193_20240702.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVID_JERRY_H108193_20240702.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H108193 \n \nJERRY DAVID, Employee       CLAIMANT \n \nNWMC BENTON CO., Employer      RESPONDENT \n \nGALLAGHER BASSETT SEREVICES, INC., Carrier/TPA  RESPONDENT \n \n \n OPINION FILED JULY 2, 2024  \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in Springdale, \nWashington County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by RICK BEHRING, JR., Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn September 1, 2023, the claimant, through his attorney, Laura Beth York, filed an AR-\nC requesting various compensation benefits in which he alleged injuries to his bilateral knees on \nor  about  March  20,  2023.  The  claim  was  accepted  as  compensable  and  all  appropriate  benefits \nwere paid, including payment of a permanent anatomical impairment rating.  \nOn  February  23,  2024,  Ms.  York  entered  a  Motion  to  Withdraw  as  Counsel.  The \nCommission granted the motion on March 20, 2024. No further action was taken in this claim. \n On April 1, 2024, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for  June  25,  2024.  Notice  of  that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on  May  13,  2024. \nUnited States Postal Department records indicate that claimant received and signed for the notice \n\nDavid – H108193 \n \non May 18, 2024. Despite having received notice of the scheduled hearing, the claimant failed to \nappear at the hearing and has failed to respond to the motion in any form or manner. \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED.    \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2672,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H108193 JERRY DAVID, Employee CLAIMANT NWMC BENTON CO., Employer RESPONDENT GALLAGHER BASSETT SEREVICES, INC., Carrier/TPA RESPONDENT OPINION FILED JULY 2, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:50:42.654Z"},{"id":"alj-H302552-2024-07-02","awccNumber":"H302552","decisionDate":"2024-07-02","decisionYear":2024,"opinionType":"alj","claimantName":"Sarah Papp","employerName":null,"title":"PAPP VS. AIRGAS DRY ICEAWCC# H302552July 2, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PAPP_SARAH_H302552_20240702.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PAPP_SARAH_H302552_20240702.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H302552 \n \nSARAH SIX PAPP, Employee                                                                        CLAIMANT \n \nNORTHWEST MEDICAL CENTER BENTON CO., Employer                 RESPONDENT                                                     \n \nGALLAGHER BASSETT SERVICES, Carrier                                          RESPONDENT                                                   \n \n \n \n OPINION FILED JULY 2, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by JAMES A. ARNOLD, II, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On June 5, 2024, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on November 1, 2023 and a pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The  employee/employer/carrier  relationship  existed  among  the  parties  on \nJanuary 20, 2023. \n 3.   The claimant was earning sufficient wages to entitle her to compensation at \nthe  maximum  rates  of  $835.00  for  total  disability  benefits  and  $626.00  for  permanent \n\nSix Papp (H302552) \n2 \n \npartial disability benefits. \n 4.   Respondents have controverted this claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injuries to claimant’s neck, left shoulder, upper extremities \nand back on January 20, 2023. \n2.    Temporary total disability benefits. \n3.     Medical benefits. \n4.      Attorney’s fee. \nAt the time of the hearing claimant clarified that she is requesting temporary total  \ndisability benefits from January 23, 2023 through a date yet to be determined. \nThe  claimant  contends  that  she  sustained  job  related  injuries  to  her  neck,  left \nshoulder, upper extremities and back.  She contends that her injuries occurred as a result \nof the combined effects of her job activities on January 19, 2023 and January 20, 2023.  \nClaimant  contends  that  although  the  pain  started  on  January  19th,  her  job  duties  on \nJanuary  20th  caused  her  disability.    She  requests  payment  of  reasonably  necessary \nmedical treatment, temporary total disability benefits, and a controverted attorney fee.  \nThe respondents contend that without waiving other defenses, the claimant did not \ninjure herself while in the course and scope of her employment.  \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nSix Papp (H302552) \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \nconducted  on November  1,  2023 and  contained  in  a  pre-hearing  order  filed  that  same \ndate are hereby accepted as fact. \n 2. Claimant has failed to meet her burden of proving by a preponderance of \nthe  evidence  that  she  suffered  a  compensable  injury  to  her  neck,  left  shoulder,  upper \nextremities and back on January 19, 2023 and/or January 20, 2023. \n \n \n FACTUAL BACKGROUND \n The claimant has been employed as an emergency room (hereinafter “ER”) nurse \nsince September 2021.  Claimant testified that she worked a double shift on January 19, \n2023 and January 20, 2023.  Claimant testified that on January 19, 2023 she had a patient \nthat weighed 347 pounds who needed to be moved in his bed and that her only help was \na paramedic. \n She also testified that on Friday, January 20, 2023, she and several other nurses \nand two security guards had to physically restrain a combative psychiatric patient in Room \n4  of  the  ER.    Claimant  testified  that  the  patient  was  hitting,  kicking,  and  spitting.    She \ndescribed the patient as belligerent, noncompliant, combative, psychotic, and violent. \n Claimant  testified  that  she  felt  like  she  had  strained  something  but  continued  to \nperform her job duties until time to clock out.  She testified at  her deposition that at the \ntime she clocked out she had some neck pain, upper back pain, and left upper back pain \nat the scapula. \n\nSix Papp (H302552) \n \n4 \n \n Claimant testified as following with regard to Friday night: \n  Q Tell me what happened Friday night. \n \n  A Well, I had left work.  I got off shift.  We were off shift \n  18:30.  That’s when we go through shift change.  I don’t know \n  exactly what time I clocked out.  I clocked out and went home, \n  and I tried to take some ibuprofen, and I tried to take a hot \n  shower, and my symptoms kept getting worse and worse.  I \n  kept having more and more pain.  At some point Friday night, \n  1:00/2:00 a.m. I finally dozed off and fell asleep for a little \n  while.  And whenever I woke up after two or three hours, I \n  woke up because the pain was so bad I couldn’t sleep any- \n  more.  I got up and my arm was paralyzed, couldn’t lift it.  I \n  had no movement in it. \n \n \n Claimant testified that her symptoms continued to worsen over the weekend and \non Monday, January 23, 2023, she called her supervisor, Calley Lanier, at 7:03 a.m. and \ninformed her that she had a “rough shift”; was having pain; and would not be able to work \nthat day.  Later that day claimant telephoned her primary care provider’s office and stated \nthat  she  could not  raise  her  left  arm,  was  in excruciating  pain, and  believed  she  might \nneed  an  MRI.    She  also  sought  medical  treatment  from  Jaclyn  Crowder  at  Travis \nChiropractic for her left shoulder and midback pain.   \n On  January  24,  claimant  sought  medical  treatment  from  Christy  Anders, NP.  \nAnders ordered an MRI of the cervical spine which was performed on February 1, 2023 \nand read as follows: \n  IMPRESSION: \n  At the C4-5 level, there is significant worsening since 3 2020, \n  with there now being a moderate left posterolateral disc \n  herniation, as well as there being broad posterior disc \n  bulging/protrusion, mild-to-moderate central canal stenosis. \n \n  Broad disc bulging/protrusion at the C5-6 with moderate \n\nSix Papp (H302552) \n \n5 \n \n  central canal stenosis, mild/moderate bilateral foraminal \n  spurring at this level. \n \n \n On February 22, 2023, claimant was evaluated by Candace Harper, PA in Dr. Larry \nArmstrong’s office.  Harper assessed claimant’s condition as cervical radiculopathy at C5 \nand  C6;  cervical  stenosis  of  spinal  canal;  cervical  spondylosis  with  radiculopathy;  and \nherniated cervical disc.  Subsequently, on March 1, 2023, Dr. Armstrong recommended \nan anterior cervical discectomy with fusion at C4-5, 5-6, and C-7 levels.  This surgery was \nscheduled for April 14, 2023.    \n Claimant apparently canceled the surgery the day before it was scheduled and Dr. \nArmstrong would not reschedule the procedure.  Claimant then sought medical treatment \nfrom Dr. Jared Seale who agreed with Dr. Armstrong’s surgical recommendation.   \n Claimant has filed this claim contending that she suffered a compensable injury as \na  result  of  work  activities  that  occurred  on  January  19,  2023  and  an  injury  with  a \ncombative  patient  on  January  20,  2023.    She  requests  payment  of  temporary  total \ndisability  benefits  from  January  23,  2023  through  a  date  yet  to  be  determined;  related \nmedical benefits; and a controverted attorney fee. \n   \nADJUDICATION \n Claimant  contends  that  she  suffered  a  compensable  injury  as  a  result  of  work \nactivities  that occurred  on  January  19,  2023 and an  injury  with  a  combative patient on \nJanuary  20,  2023.     Claimant  essentially  contends  that  she  suffered  a specific \ncompensable injury while working for the respondent.  In order to prove a compensable \ninjury  as  the  result  of  a  specific  incident  that  is  identifiable  by  time  and  place  of \n\nSix Papp (H302552) \n \n6 \n \noccurrence, a claimant must establish by a preponderance of the evidence (1) an injury \narising out of and in the course of employment; (2) the injury caused internal or external \nharm to the body which required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings establishing an injury; and (4) the injury \nwas caused by a specific incident identifiable by time and place of occurrence.  Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet her burden of proving by \na preponderance of the evidence that she suffered a compensable injury while working \nfor respondent.  I make this finding regardless of whether claimant’s contention is that \nshe suffered an injury on January 19 and/or January 20.  Under any contention, claimant \nhas  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  she  suffered  a \ncompensable  injury  which  arose  out  of  and  in  the  course  of  her  employment  with \nrespondent.  I find based upon the evidence that claimant has failed to meet that burden \nof proof. \n First, I note that claimant has a history of complaints involving her neck, back, and \nshoulder.  A report dated July 20, 2007 from Carolyn Dillard notes paravertebral spasms \nin the cervical spine.  In a report dated September 26, 2011, Dillard noted that: \n  She also presented with arm pain.  It is located left arm and \n  right arm.  It is described as numbness, acute and tingling. \n \n \n A Patient Case History form dated February 28, 2017 reflects constant low back \npain  with  frequent  neck  pain  or  stiffness,  pain  between  shoulders,  shoulder  pain  and \nsciatica.  In a report dated March 19, 2017, Stefanie Ellis, APN, noted that claimant’s \n\nSix Papp (H302552) \n \n7 \n \nexamination was positive for neck and back pain.  Because claimant was complaining of \ndizziness at that time, Ellis ordered an MRI scan of the brain.  This MRI was performed \non  April  21,  2017  and  was  read  as  normal  with  respect  to  the  brain.    However,  it  also \nnoted: \n  Moderate central disc protrusion at C4-5 indenting sub- \n  arachnoid space and cord.  MRI of cervical spine may be \n  of use. \n \n \n Based on this test result, Ellis did order an MRI scan of the cervical spine which \nwas performed on March 9, 2020.  That scan found a small disc protrusion at C4-5 with \nmild canal stenosis; spondylosis with disc protrusion at C5-6 with canal and biforaminal \nstenosis;  and  small  right-sided  disc  protrusion  at  C6-7  with  mild  right  lateral  recess \nnarrowing. \n Subsequent  records  from  Ellis  indicate  that  she  assessed  claimant  with  chronic \nneck pain and prescribed Norflex as needed.  Claimant was involved in a MVA in April \n2021, and she sought medical treatment from the Travis Chiropractic Clinic for complaints \nof neck, back, and  hip pain.  Claimant also returned to Ellis for additional treatment and \nin a report dated April 8, 2021 Ellis noted: \n  Video visit today for f/u with her mdd with reaction to acute \n  stress (not doing well emotionally, got in to a wreck with \n  being rear ended, flared up her neck pain)..... (Emphasis \n  added.) \n \n \n Ellis’ assessment included chronic neck pain and “Whiplash injury to neck, initial   \nencounter”.  Ellis continued claimant’s prescription for Norflex.  \n On April 22, 2021, claimant again visited with Ellis by video.  In her report of that \n\nSix Papp (H302552) \n \n8 \n \ndate, Ellis again noted that claimant’s neck pain had worsened following the MVA and \nthat “last night has actually increased her lower back pain doing super man on the bounce \nball, low back strain, LLE with numbness and tingling....”    Ellis prescribed claimant a \nmuscle relaxer for severe pain. \n Claimant underwent a lumbar MRI scan on May 7, 2021 which revealed a central \nright lateral protrusion at L4-5 with degenerative changes.  Claimant continued to receive \ntreatment  at  Travis  Chiropractic  and  from  Ellis.    In  a  report  dated  July  15,  2021,  Ellis \nstated: \n  She has had chronic neck pain.  She has had MRI in the \n  past.  Patient states her Norflex seems to work the best \n  for this problem. \n \n \n When claimant’s chronic neck pain continued, Ellis in a report dated December 12, \n2021 referred claimant to a pain clinic.  Claimant was seen by Dr. Brian Goodman, Pain \nManagement, on February 8, 2022.  He noted that claimant’s neck extension was limited \napproximately 10%; neck flexion limited by approximately 50%; right neck rotation limited \nby approximately 10%; and left neck rotation limited by approximately 10%.  His diagnosis \nof claimant included cervical radiculopathy left C8 and cervical spondylosis.  He did not \nfeel  that  a  surgical  referral  was  necessary  but  instead  recommended  cervical  steroid \ninjections;  home  exercises;  continued  use  of  medication;  and  no  activity  restrictions.  \nClaimant  chose  not  to  undergo  the  cervical  steroid  injections,  but  instead  continued  to \nsee Ellis for chronic neck pain and refills of Norflex for that condition. \n Clearly, claimant had an extensive history of chronic neck pain prior to January 19, \n2023.  However, a claimant may suffer a compensable injury if a pre-existing condition is \n\nSix Papp (H302552) \n \n9 \n \naggravated by a work-related injury. \nAfter her alleged injury with respondent, claimant underwent another cervical MRI \nscan on February 1, 2023.  The MRI report states: \n   \nAt the C4-5 level, there is significant worsening since 3 2020, \n  with there now being a moderate left posterolateral disc \n  herniation, as well as there being broad posterior disc \n  bulging/protrusion, mild-to-moderate central canal stenosis. \n \n  Broad disc bulging/protrusion at the C5-6 with moderate \n  central canal stenosis, mild/moderate bilateral foraminal \n  spurring at this level. \n \n \n As  previously noted,  claimant  eventually  came under  the  care of Dr.  Seale  who \nhas recommended surgery on claimant’s cervical spine.  In a letter dated August 23, 2023, \nhe stated that he had reviewed claimant’s cervical MRIs from 2020 and 2023.  It is his \nopinion that the 2023 cervical MRI scan shows disc protrusions at C4-5 and C6-7 which \ndid  not  exist  on  the  MRI  from  2020.    He  then  indicates  that  based  on  the  onset  of \nclaimant’s symptoms after January 20, 2023, which did not exist prior to that date, that \nthe  disc  protrusions  occurred  during  a  work-related  injury  and  resulted  in  her  current \nsymptoms and need for surgery.  Dr. Seale reiterated this opinion after being provided \nwith chiropractic records from 2021 and at his deposition.   \n However, Dr. Seale’s opinion regarding causation is based upon the history of \ninjury given to him by claimant.  Dr. Seale describes himself as a patient’s advocate and \nwith respect to claimant stated – “That was my gut, but I’m also biased toward the patient, \nas always, as I should be.”   Certainly one would expect a physician to believe their patient \nand advocate for them with respect to medical matters.   However, this advocacy does \n\nSix Papp (H302552) \n \n10 \n \nnot extend to the issue of causation to the extent that it requires a weighing of the totality \nof the evidence and credibility of witnesses.  That is a function of the Commission.   \n After my observation of claimant’s demeanor at the hearing and after consideration \nof her testimony, I do not find the claimant’s testimony to be credible.  To the contrary, I \nfound her testimony to be evasive, argumentative, and contradictory at times.    \n One example of this involves whether claimant had complaints involving her left \nscapula  prior  to  January  20,  2023.    At  her  deposition  claimant  was  asked  about  her \nsymptoms on January 20, 2023.   \n  Q Where? \n  A Neck, back.  So upper back, central upper back, \n  behind my left scapula. \n \n  Q Had you had any of those symptoms prior to this \n  incident on January the 20\nth\n? \n \n  A Not the pain in my - - behind my scapula, not there. \n  I had not had that before.  That was new. \n \n \n Claimant was again asked about prior scapula pain at the hearing. \n  Q Do you recall telling me when I took your deposition \n  on October the 31\nst\n of last year, we talked about your neck \n  and upper back pain and all that kind of stuff and you said \n  you had this problem after 1/20, after January 20\nth\n. \n \n  A Uh-huh. \n \n  Q “I felt like I had strained something.  I had pain and \n  some kind of throbbing going on.” \n    \n“Where” \n \n   “Neck and back.  So upper back, central upper back, \n  behind my left scapula.” \n  \n\nSix Papp (H302552) \n \n11 \n \n   And I said, “Had you had any of these symptoms \n  prior to the incident on January the 20\nth\n?” \n   And you said, “Not the pain in my - - behind my \n  scapula.  Not there.  I had never had that before.  It was \n  new.” \n \n  A That is correct. \n \n  Q That is correct and it is your testimony you have never \n  had left scapula pain before? \n \n  A And it shows on the MRI. \n \n  Q Answer my question.  Did you tell me that you never \n  had any left scapula pain before January 20, 2023? \n \n  A I had never had pain in my infraspinatus and supra- \n  spinatus that shows up on the MRI from February the 9\nth\n \n  of 2023.  I never had that pain before. \n \n  Q You never had the pain in your left scapula before, \n  correct? \n \n  A I had never had the pain that was related to acute \n  edema that was diagnosed on February the 9\nth\n of 2023.  I \n  never had that pain before. \n \n      *** \n \n  Q On October the 31\nst\n, we were talking about what your \n  problems were after whatever this date is in January of 2023 \n  and we talked about the fact that you felt at that time neck, \n  back, upper back, central back, central  upper back, behind \n  my left scapula, and I asked you the following question: \n  “Had you had any of those symptoms prior to this incident \n  on January the 20\nth\n?” \n \n  A The answer would be yes. \n \n  Q Why did you tell me then that you have not had the \n  pain behind your scapula?  “I had not had that before.  That \n  was new.”  \n \n  A You are misinterpreting me right here, right here in \n  this moment.  I just want you to understand that you are \n\nSix Papp (H302552) \n \n12 \n \n  misinterpreting exactly as I said it.  I have had some pain, \n  some stiffness in certain parts in the past, but the pain \n  that I felt behind my left scapula, which shows up as a \n  new and acute injury due to the acute inflammation, so \n  that is proven.  It is new and acute proven on that MRI. \n  That pain I had not had - - \n \n \n Thus, at her deposition claimant clearly indicated that she had not had any pain \nbehind  her  left  scapula  before  but  that  it  was  a  new  symptom after  January  20,  2023.  \nHowever, at the hearing claimant attempts to parse that testimony and state that any pain \nbehind her left scapula was new because it was proven on an MRI. \n This testimony is significant when one considers the chiropractic report submitted \nby respondent dated June 9, 2021.  That medical report contains the following notation: \n  L scapular region “stabbing”   \n  \n This chiropractic report from June 9, 2021 would contradict claimant’s deposition \ntestimony that she had never had any left scapular pain.  Therefore, claimant attempted \nto distinguish one type of left scapular pain from another in her testimony at the deposition \nand at the hearing.  However, claimant was even unwilling to admit that the “L scapular \nregion” even refers to left as opposed to something altogether different.   \n  Q Have you seen this report from your chiropractor from \n  June 9, 2021, which appears at Respondents’ Page 55? \n \n  A I don’t know.  You would have to show it to me. \n \n  Q Okay.  Let me show it to you.  Why don’t you read \n  this part right over here under nursing notes. \n \n  A (Witness reading document.) \n \n  Q What does that say? \n \n\nSix Papp (H302552) \n \n13 \n \n  A I don’t know.  I am trying to make it out what this \n  actually says.  Something movement.  Overall addition. \n  Something of - - something region stabbing.  I don’t know. \n \n  Q Left scapular region stabbing; is that what it says? \n \n  A I don’t think that that actually says left. \n \n  Q Okay.  Well, what do you think that L stands for? \n \n  A Could be a lot of things. \n \n  Q What else could it be other than left? \n \n  A I think that says improvement.  I think you are mistaken. \n \n \n Clearly the handwritten chiropractic notation does indicate that claimant had some \nimprovement overall.  However, it also indicates the left scapular region.  Claimant’s \ninability to even admit that the “L”  likely stands for left strains credibility given the fact that \nclaimant is a nurse.  \n Another  example of evasion occurred  in  discussing  the history  claimant  gave  to \nher treating physicians beginning on January 23.  The following questioning took place \non cross examination: \n  Q Well, go back to this - -  I am going to wind up  \n  introducing the entire deposition, but you told me when \n  I took your deposition you didn’t have any pain until \n  after the 20\nth\n. \n \n  A I had soreness.  Excruciating pain began on the \n  20\nth\n as well as the loss of function.  I no longer had function \n  of my left arm after the PM hours of the 20\nth\n.  My left arm \n  became weak and I was no longer able to use the left hand \n  as I lost the motor control. \n \n  Q Well, that was a very specific incident.  That happened \n  right after this.  Why didn’t you tell your chiropractor when you \n  saw him on the 23\nrd\n?  You didn’t mention the incident on the \n\nSix Papp (H302552) \n \n14 \n \n  20\nth\n with a combative patient at all.  You said that \nyou had been lifting some heavy patients.  Why did  \nyou not tell your chiropractor about this combative \npatient that you had to wrestle with? \n \n  A I had very specific patients that I got on the 19\nth\n \n  that I carried their - - I had the same patients on the 20\nth\n. \n  The exact, same patients, if you go back in history, it will \n  prove that I had the same patients on the 19\nth\n and 20\nth\n, \n  as well as the documented event that happened on the \n  20\nth\n. \n \n \n Instead of answering the question as to why she did not report a specific incident \nto  her  chiropractor  when  she  saw him  on  January  23\nrd\n,  claimant  instead  indicated  that \nshe  had  the  same  patients  on  the  20\nth\n as  she  had  on  the  19\nth\n.    Her  answer  was  not \nresponsive to the question and is another example of her testimony being evasive. \n In addition, I note that there are many contradictions in claimant’s testimony and \nthe  remaining  evidence.    For  instance,  in  describing  the  incident  with  the  combative \npatient  on  January  20,  2023,  claimant  indicated  that  she  participated  in  returning  the \ncombative patient to the ER room from which she had escaped. \n  Second security guard – his name is Darrell, younger \n  healthier in nature.  When that happened, there was \n  myself, Kim, Lindsey Long, Jerica, were all somewhere \n  close.  We get up and attempt to help get this patient and \n  return her back to her room.  (Emphasis added.) \n \n \n In addition, at the hearing claimant also described this event as follows: \n  I was walking towards this event and as I walked towards \n  this, I helped to restrain the patient and put the patient back \n  to the psychiatric treatment room.  (Emphasis added.) \n \n \n Claimant’s testimony that she helped restrain the claimant and return her to the \n\nSix Papp (H302552) \n \n15 \n \nexamination room is contradicted by the testimony of two co-workers, Darrell Robinson \nand Mike Carney.   According to their testimony, they were the individuals who subdued \nthe  patient  and  took  her  back  to  the  examination  room.    Darrell  Robinson  testified  as \nfollows: \n  And he [Mark Carney] stated that a patient was leaving out that \nwas kind of combative.  So I went one direction and he went the \nother and I stopped the patient, grabbed her, and he helped and \nwe took her to ER 4.....  At that time, only I stopped her.  I grabbed \nher upper torso.  He grabbed her lower torso, lower legs, limbs, \n  and we took her to the room. \n \n \n Likewise,  Mike  Carney,  a  security  officer  for  the  respondent,  testified  as  follows \nregarding this incident: \n  A  young woman who was standing at approximately ER 12 \n  was screaming obscenities at the nursing staff when I arrived. \n  when I arrived she turned and began to apply some obscenities \n  to me, told me to stay away from her, and was very much \n  physically out of control, turned around and ran from me, so \n  I followed her.  She was a lot faster than me because I’m older. \n  She turned left, and I thought she was going to go out the \n  ambulance doors, which sometimes that happens, but she \n  didn’t.  She turned left again and ran right into Darrell, my \n  boss.  Darrell put his arms around her.  She was kicking him, \n  so I ran to try to grab her legs and she kicked me in the left \n  foreleg, which I’m used to having collateral damage some- \n  times when people are physically out of control, but I did get \n  a hold of her legs.  We took her into a safe room, laid her \n  down, and six of the nursing staff came in the room and  \n  began to put the restraints on her.  When she was restrained, \n  Darrell and I left. \n \n \n Carney  was  subsequently  specifically  asked  whether  any  of  the  nursing  staff \nhelped restrain the claimant to get her back into the examination room. \n  Q While you and Darrell had this lady in a bearhug, - - \n \n\nSix Papp (H302552) \n \n16 \n \n  A Yes. \n \n  Q - - were any of the nurses there helping you restrain \n  her, or was it just you and Darrell? \n \n  A My recollection is Darrell and I took the girl into the \n  room and laid her down.  I don’t recall any nurse or any \n  other personnel grabbing a hold of that individual.  There \n  was nothing left to grab a hold of.  You know, he had the \n  upper body, I had her legs. \n \n  Q And you took her and laid her - - \n  \n  A Laid her down. \n \n  Q - - on the bed and stayed there until she was strapped \n  down? \n \n  A Correct. \n \n \n Thus, while there was clearly an incident in which a combative patient had to be \nsubdued and returned to an examination room, claimant has given the impression that \nshe participated in subduing the patient and taking her back into the examination room.  \nAccording  to  the  testimony  of  Carney  and  Robinson,  they  were  the  individuals  who \nsubdued the patient and carried her into the examination room.  The only thing the nurses \ndid  was  apply  the  restraints.   This  is  not  to  suggest  that applying  the  restrains  in  this \nsituation  would  have  been  a  simple  task or  that  claimant  could  not  have  been  injured \nwhile   applying   the   restraints.  However,  claimant’s  testimony  exaggerates  her \nparticipation in the subduing of the patient and returning her to the examination room. \n I also believe it is important to note that claimant testified that she had immediate \nsymptoms.  At her deposition claimant testified as follows: \n  Q When did you first notice any symptoms? \n\nSix Papp (H302552) \n \n17 \n \n  A Immediately. \n  \n Likewise, at the hearing claimant testified as follows: \n  Q Now, let’s talk about January the 20\nth\n.  Did your condition, \n  did your physical condition as far as you could tell, change \n  any after your experience with the combative patient as \n  compared to your condition on January 19? \n \n  A Yes, sir.  It was immediately noticed. \n \n  Q When you say immediately, what do you mean  \n  immediately? \n \n  A I mean in our world, within a few minutes or so.  Then \n  I felt sore.  I didn’t understand that I had an acute, severe \n  injury.  And whether that be from adrenaline, whether that \n  be from, you know, whatever endorphins that I had at that \n  time after having that experience with that combative patient, \n  it wasn’t known to me immediately that it was something that \n  was that severe. \n \n      *** \n  Q So when do you believe the injury occurred? \n \n  A On Friday, January the 20\nth\n. \n \n  Q When on Friday, January the 20\nth\n? \n \n  A It would have been Friday afternoon.  I only had a \n  couple, two or three hours left on my shift.  I knew that I \n  was injured.  I knew that I was hurting.  (Emphasis added.) \n \n \n Despite   testifying   that   she   knew   something   was   wrong   immediately   while \nrestraining the combative patient, and that she knew that she had an injury, claimant did \nnot mention any injury to anyone in the supervisory capacity before clocking out.  It should \nalso  be  noted  at  this  point  that  during  the  deposition  of  Calley  Lanier,  claimant’s \nsupervisor, a discussion occurred regarding an Event Reporting System or ERS.  Lanier \n\nSix Papp (H302552) \n \n18 \n \nwas asked about how that system worked. \n  Q And tell us a little bit about what that is and how it works. \n \n  A That is where a hospital personnel can go in and put in an \n  event that happened.  And then - - yeah.  Go ahead. \n \n  Q What would cause hospital personnel to file such \n  a report? \n \n  A Any number of things.  If someone were to get hurt; \n  if there was some kind of altercation; if there was mis- \n  management of meds; or if a bed rail wasn’t working or \n  something.  I mean any kind of things that go wrong. \n \n \n Notably,  no  ERS  was  completed  regarding  the  incident  of  January  20,  2023.  \nHowever, as Lanier noted, the filing of an ERS was not limited to supervisors but they can \nbe filed by any employee such as the claimant. \n  Q And as far as the ERS is concerned, if Sarah  \n  Six Papp was an RN in the emergency room department \n  on Friday, January the 20\nth\n, and an incident occurred in \n  which she was involved, either as the nurse  in charge of \n  the patient or as a member of the emergency room staff \n  that she thought resulted in something untoward happening \n  either to herself, to the patient, to another member of the \n  staff, could she have filed an ERS? \n \n  A Yes. \n \n     *** \n  Q If a person injured themselves at work, would they \n  have the ability to file their own ERS? \n \n  A Yes. \n \n \n Thus, claimant has testified that she knew immediately that she had been injured \nand had symptoms.  Despite that, she did not report the injury to anyone in a supervisory \ncapacity on January 20 and did not file an ERS report. \n\nSix Papp (H302552) \n \n19 \n \n Claimant  did  not  discuss  any  physical  problems  with  anyone  in  a  supervisory \ncapacity  at  the  respondent  until  Monday  morning,  January  23.    Again,  despite  having \ntestified that she knew that she had been injured immediately, claimant still did not report \na work-related injury to her supervisor, Calley Lanier.  Instead, she simply informed Lanier \nthat she had a “rough shift” and would not be available to cover her shifts.  Claimant  \nadmitted at the hearing that she did not mention any specific injury to Lanier. \n  Q So did you at some point report to somebody in a \n  supervisory capacity with Northwest Medical Center that  \n  you felt like you had a condition that had been caused by \n  your work? \n \n  A Yes, sir. \n \n  Q And when did that happen? \n \n  A It was on Monday, July 23, 2023 and my supervisor \n  comes on shift at 0700 and I made a phone call at 0703 to \n  contact her and let her know. \n \n      *** \n  Q What I am asking you - - I am not asking you why you \n  told her whatever you told her.  All I am asking you is what did \n  you tell her? \n \n  A I told her that I was hurt; that we had a very rough shift \n  on Friday and that after I had gotten home, that my symptoms \n  continued to get worse.  And that I had suffered all weekend \n  and that she needed to find someone to cover my upcoming \n  shifts. \n \n  Q Now, we took Ms. Lanier’s deposition and I came away \n  with the impression that you did not report a specific injury. \n  Is that correct or incorrect? \n \n  A That is correct. \n \n  Q And why did you not report a specific injury? \n \n  A There are so many events that take place in one shift’s \n\nSix Papp (H302552) \n \n20 \n \n  amount of time, let alone two shifts.  I worked back-to-back \n  on the Thursday and Friday, the 19\nth\n and the 20\nth\n.  And from \n  those two shifts, I went to work one day and I left completely \n  different.  My health was fine.  I did  my job without any delay, \n  without any help, and my life changed in an instant in the same \n  day. \n \n  Q Now, which day are we talking about? \n \n  A January the 20\nth\n. \n \n  Q Okay.  From reading information that the Respondents \n  have submitted into evidence, it appears that you basically \n  didn’t know what was going on.  Is that right or wrong?   \n  when you reported this to Calley Lanier, did you know what \n  your problem was? \n \n  A No, I didn’t know.  No one would know - - \n \n      *** \n \n  Q So after you talked to Ms. Lanier, what happened? \n  I mean as far as your - - did you make it clear to her that \n  you wanted to file a workers’ comp claim? \n \n  A Yes. \n \n  Q And when you say yes, what did you tell her that in \n  your mind should have caused her to know that you wanted \n  to file a workers’ comp claim? \n \n  A I told her that there were - - that we had had a very \n  rough shift on Friday and she had asked - - she said, “Well, \n  what is going on?  What is going on?” \n \n   And I gave her my symptoms and I told her it just \n  continued to get worse and worse throughout the evening \n  and of course, over the weekend. \n \n   She had - - she had mentioned that - - she said, “Do \n  you know exactly what caused it?” \n \n   And I said, “At this time, no.”  I said, “I am in such \n  severe pain, I can’t hardly think.”  I did tell her that.  I did \n  tell her that I would think about it and at that time I was \n\nSix Papp (H302552) \n \n21 \n \n  just trying to seek help.  I mean medically, I need help. \n \n  Q So if you were asked by somebody in a supervisory \n  capacity if you knew what caused it, why would you say,  \n  “I will think about it,” if you knew what caused it? \n \n  A Well, I told her we had a rough shift, but she didn’t \n  ask very many questions as far as that goes.  I mean she \n  immediately - - she immediately just said, “Well, let me get \n  back with you on it.”  And I said, “Okay.” \n \n \n Likewise, on cross-examination, claimant testified as follows: \n  Q Okay.  So you are denying that you told Calley Lanier \n  on the 23\nrd\n at this very precise time that you recall that you \n  called her, you remember the exact minute that you called \n  her, but you don’t remember what you told her? \n \n  A I discussed that earlier. \n \n  Q Okay.  You didn’t tell her about the combative patient; \n  correct? \n \n  A I told her that we had a rough shift. \n \n  Q Okay.  You didn’t tell her about the combative patient. \n  You didn’t tell her about what you told the chiropractor about \n  lifting heavy patients. \n \n  A Well, that phone call would have been prior to me having \n  that chiropractic visit. \n \n  Q Okay.  According to the chiropractor’s records, which is \n  at Page 71 of our exhibits, there appears the following:   \n  “Thursday at work as a nurse.  She was pulling around a lot \n  on dead weight patients.  Since then, the pain started.” \n \n   Is that when your pain started that you are now contend- \n  ing began as a result of the incident with the combative patient? \n \n  A I had some soreness on the 19\nth\n.  The excruciating pain \n  in which I have suffered and endured with since January the \n  20\nth\n was a result of that event on January the 20\nth\n. \n \n\nSix Papp (H302552) \n \n22 \n \n     *** \n  Q Okay.  So you admit that you did not tell Calley \n  Lanier about the incident with the combative patient? \n \n  A I did not go into details with Calley Lanier. \n \n  Q “Yes” or “no”? \n \n  A No.  No, sir. \n \n  Q Okay.  You did not tell Calley Lanier specifically \n  about lifting heavy patients on Thursday? \n \n  A No, sir. \n \n  Q You just said a rough shift and you didn’t say which \n  date? \n \n  A That is correct. \n \n Again, claimant has testified that she immediately knew that she had been injured, \nyet  she  does  not  report  a  specific  injury  to  Lanier  on  January  23,  but  instead  simply \nindicates that she had a rough shift.  In fact, claimant acknowledges that Lanier asked \nher if she knew what caused it and claimant responded “no” and said that she would think \nabout it.  When asked why if she knew what had caused it she would indicate that she \nwould  think  about  it,  claimant  simply  responded  that  Lanier  didn’t  ask  very  many \nquestions.    However,  Lanier  specifically  asked  the  claimant  of  what  had  caused  her \nproblems and claimant indicated that she did not know and would have to think about it. \n Claimant  was  again  asked  about  her  failure  to  report  this  incident  on  cross \nexamination. \n  Q So this was an unusual occurrence [restraining a  \n  combative patient], and yet you didn’t tell anybody about \n  it? \n \n\nSix Papp (H302552) \n \n23 \n \n  A Kim Meyers reported it under the Event Reporting \n  System, underneath an ERS because of the level - - the \n  level that it was taken to, so an ERS was filed that day \n  under the patient’s primary nurse, who was Kim Meyers, \n  who was also present in the room. \n \n  Q So we have this unusual event, the extraordinary \n  event, and yet you don’t tell anybody about it when you are \n  saying something is wrong with my shoulder? \n \n  A It is not everyday that you get spit in the face by a \n  patient, no, sir. \n \n  Q Memorable? \n \n  A Memorable, being spit in the face is quite memorable. \n \n  Q And if you had related your problem to this incident, \n  don’t you think you would have told somebody about this \n  incident rather than I had a rough shift or I was dragging \n  around an overweight patient the day before? \n \n  A We vent to our fellow nurses.  It is how we cope.  It \n  is how we are able to maintain our own sanity.  And yet still \n  go back the next day and perform the exact, same job duties \n  with the exact, same work restraints with the exact, same, \n  you know, normal mindset to be able to do that kind of job \n  everyday.  We vent to our fellow nurses. \n   \n  \n Notably, claimant again did not answer the question as to why she did not report \nthis memorable incident rather than simply indicating that she had a rough shift; instead, \nshe simply explained how nurses vent to each other.  This answer is not responsive to \nthe question as to why claimant did not relate her problem to this memorable incident. \n With  respect  to  this  issue,  I  note  that  Calley  Lanier  in  her  deposition  testimony \ntestified as follows: \n  My recollection is she reached out and said she didn’t know \n  what had happened.  And I felt sorry for her because of her \n  arm, but she didn’t know what had happened.  She thought \n\nSix Papp (H302552) \n \n24 \n \n  maybe - - I don’t want to misspeak.  I don’t recall, but I do  \n  know she didn’t know what happened. \n \n  And then she said she had to lift a really heavy patient that \n  was dead weight and that might have been it. \n \n \n Lanier also testified that as a result of this conversation with claimant she wrote an \ne-mail  dated  January  25,  2023  to  various  individuals  at  respondent  setting  forth  the \nconversation.  According to Lanier’s testimony, her e-mail would be an accurate reflection \nof her conversation with claimant in January 2023.  In that e-mail, Lanier stated: \n  I have an RN in our Bentonville ED that called me Monday \n  morning 1/23 to tell me that she would potentially be out \n  Tuesday and Wednesday due to her not being able to lift \n  her left arm.  She states that she doesn’t understand what \n  happened and she did nothing so she can’t figure out why \n  her arm was in pain and she couldn’t lift it. \n \n \n Finally, there are various histories given by claimant to her medical providers.  In \na medical report dated January 23, 2023, electronically created by Francisco Porras, he \nrelated a phone conversation with claimant as follows: \n  Patient states she can not raise her left arm up, is in \n  excruciating pain.  Does not know if she hurt it at work \n  or what happened.  Patient believes she may need an \n  mri.  (Emphasis added.) \n \n \n Shortly  thereafter,  claimant had  a  telephone  conversation  with  Theron Likens,  a \nlicensed practical nurse.  Her report states as follows: \n  Received call on red phone and pt has hurt her arm at \n  work.  And she can’t lift it.  Informed to go to ER. \n \n \n On that same date a consultation form was completed with the following history: \n\nSix Papp (H302552) \n \n25 \n \n  Thursday at work as a nurse she was pulling around a \n  lot on dead weight patients.  Since then the pain started. \n \n \n Also on January 23, 2023, claimant was seen by Jacqueline Crowder at Travis  \nChiropractic with the following history: \n  Thursday at work as a nurse.  She was pulling around a lot \n  on dead weight patients since then the pain started. \n \n      *** \n  Thursday at work, as a nurse, the patient had to lift on two \n  different patients that were dead weight and lift them \nto move them.  Since then, her mid-back and her left \n  shoulder pain have gotten wore.  Her left arm feels \n  heavy and she can only lift it to less than shoulder \n  level without pain.  She can use her right arm to lift \n  her arm above her head. \n \n Finally,  on  January  24,  2023,  claimant  was  seen  by  Nurse  Practitioner  Christy \nAnders.  Her report of that date contains the following history: \n  Patient presents with left shoulder arm pain that began \n  approximately 3 days ago while she was at work.  She \n  denies any known injury but while at work developed \n  left arm pain 3 days ago.  (Emphasis added.) \n \n \n Again, according to claimant’s testimony she knew that she had immediate pain \nand had injured herself as a result of the incident with the combative patient on January \n20,  2023.    However,  claimant  did  not  mention  that  incident  to  any  of  these  medical \nproviders on January 23 or January 24. \n Furthermore,  with  respect  to  lifting  heavy  patients  on  January  19,  claimant \nspecifically testified at the hearing that she did not suffer an injury on January 19. \n  Q So do you think you got injured on January the 20\nth\n or \n  on January the 19\nth\n? \n \n\nSix Papp (H302552) \n \n26 \n \n  A January the 20\nth\n. \n \n      *** \n  Q So you say that - - well, so you are telling us now that \n  you did have some pain on the 19\nth\n, but that was just due to \n  what nurses do all the time? \n \n  A There is some type of soreness that we get from doing \n  our jobs.  There is some type of - -  you know, sometimes it \n  feels like we have some sort of strain, whatnot, just from \n  repetitive movements or from lifting that day, most nurses \n  can tell you that that is a daily occurrence. \n \n     *** \n  Q On January 19, did you believe you had sustained any  \n  kind of injury during the course of your employment on that \n  date?  On that date is what I’m asking you.  I am not asking \n  you to reflect as of today.  I am saying on that day, did you \n  think you had sustained any injury? \n \n  A I don’t believe I sustained a true injury on the 19\nth\n, no, \n  sir.  (Emphasis added.) \n \n   \n In  summary,  there  is  no  question  that  on  January  20,  2023 a  combative  patient \nwas restrained in the ER of respondent.  The question is whether claimant has proven \nthat she suffered a compensable injury as a result of that incident.  Dr. Seale’s opinion \nthat claimant’s current symptoms and need for surgery is causally related to an injury \nwhich  occurred  on  January  20,  2023  is  dependent  upon  her  credibility  that  the  events \noccurred as she related them to Dr. Seale.  For the reasons discussed herein, I do not \nfind the claimant’s testimony to be credible.  To the contrary, I found her answers to be \ncontradictory,  evasive,  and  non  responsive.    Claimant  has  testified  that  she  had \nimmediate pain while helping restrain a combative patient and knew that she had been \ninjured.    Despite  that  testimony,  claimant  did  not  report  it  to  anyone  in  a  supervisory \ncapacity on January 20.  Nor did claimant complete an ERS report which she could have \n\nSix Papp (H302552) \n \n27 \n \ndone to report an injury as a result of that incident.  Even when claimant telephoned her \nsupervisor, Calley Lanier, on Monday, January 23, claimant did not report an injury to her.  \nInstead, she indicated that she had had a “rough shift” and would not be able to work.  \nAccording to the claimant herself, Lanier asked her what had caused her problems and \ninstead  of  mentioning  this  incident  where  she  knew  that  she  had  been  immediately \ninjured, claimant instead indicated that she did not know what had caused her injury and \nthat she would have to think about it.  Likewise, claimant did not mention this incident to \nthe  medical  providers  on  January  23,  but  instead  mentioned  having  moved  heavy \npatients.  However, she has also testified that she was not injured on January 19. \n Perhaps claimant’s statement to Lanier that she did not know what had caused her \nproblem and would have to think about it is the most accurate description of this case.  \nClaimant did work two shifts on January 19 and January 20.  On January 23, 2023, she \nsought medical treatment for various complaints including her cervical spine.  However, \nclaimant has the burden of proving by a preponderance of the credible evidence of record \nthat she suffered a compensable injury as a result of her job duties with the respondent \non January 19 and/or January 20.  Here, according to claimant’s own testimony she did \nnot suffer an injury on January 19.  Furthermore, for reasons previously discussed, I do \nnot  find  that  claimant  suffered  a  compensable  injury  on  January  20.    Her  actions  and \nstatements do not support such a finding.  While claimant has testified that she did not do \nanything  after  leaving  work  on  January  20  until  her  symptoms  began,  one  has  to  find \nclaimant’s testimony credible to accept this as a fact.  For reasons discussed herein, I do \nnot find the claimant’s testimony credible to support a finding of compensability. \n The final issue for consideration involves claimant’s contention that a camera was \n\nSix Papp (H302552) \n \n28 \n \npresent in ER Room 4 on the date of this incident and video footage exists of the incident \nbut was not properly maintained by the respondent and therefore constitutes spoilation \nand creates a presumption that the content of that video footage would be adverse to the \nrespondent.  First, I note that there is no evidence that any such recording ever existed.  \nWhile there is testimony that a camera was present in Room ER 4, the evidence indicates \nthat that camera was for surveillance only and did not record.  Testifyhing by deposition \nwas Mike Carney, a security officer for the respondent.  Carney testified that a camera is \nin Room ER 4, but it is not a recording system.  He testified that they are only able to sit \nin  an  office  and  watch  a  patient,  but  are  not  allowed  to  film  patients.    Likewise,  also \ntestifying by deposition was Billy Lindsey, the Director of Plant Operations at Northwest \nHealth  in  Bentonville.  Lindsey  testified  that  he  was  responsible  for  all  maintenance, \nenvironmental care, security and safety in the facility.  Lindsey testified that in January \n2023 there were some cameras in operation; however, they were only for surveillance.  \nThe camera in Room 4 did not record activities. \n  Q  So is it your testimony that on January 20\nth\n, 2023, this \n  facility did not have a recorder that recorded activities in Room \n  4? \n \n  A Correct. \n \n  \n Lindsey went on to state that since that time they have upgraded their cameras \nand that recordings are now made in common areas such as the parking lot and hallway.  \nHowever, Lindsey testified that even now cameras do not record in holding rooms or in \nthe emergency rooms themselves.  According to Lindsey, these recordings are not made \nin  order  to  ensure  patient  confidentiality.    When  asked  why  someone  would  think  that \n\nSix Papp (H302552) \n \n29 \n \nthere is a recording, Lindsey responded that people see a camera and assume that it is \nrecording. \n Based upon this testimony and the lack of any credible evidence indicating that a \nrecording ever existed, I find no merit to claimant’s contention that respondents are guilty \nof spoilation of evidence. \n \nORDER \n \n Claimant has failed to prove by a preponderance of the evidence that she suffered \na  compensable  injury  on  January  19  and/or  20,  2023.    Therefore,  her  claim  for \ncompensation benefits is hereby denied and dismissed. \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $780.45. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":49824,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302552 SARAH SIX PAPP, Employee CLAIMANT NORTHWEST MEDICAL CENTER BENTON CO., Employer RESPONDENT GALLAGHER BASSETT SERVICES, Carrier RESPONDENT OPINION FILED JULY 2, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["neck","shoulder","back","cervical","herniated","hip","strain","lumbar"],"fetchedAt":"2026-05-19T22:50:44.755Z"},{"id":"alj-H303337-2024-07-02","awccNumber":"H303337","decisionDate":"2024-07-02","decisionYear":2024,"opinionType":"alj","claimantName":"Victor Melancon","employerName":null,"title":"MELANCON VS. AMERICAN CONTRACTING SERVICES, INC.AWCC# H303337July 2, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MELANCON_VICTOR_H303337_20240702.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MELANCON_VICTOR_H303337_20240702.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H303337 \n \nVICTOR MELANCON, Employee CLAIMANT \n \nAMERICAN CONTRACTING SERVICES, INC., Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 2, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On April  4,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on November 27, 2023, and a Pre-hearing \nOrder  was  filed  on December  5,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on April 29, \n2023. \n 3. The respondents have controverted the claim in its entirety. \n\nMelancon – H330337 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $835.00 for temporary total disability benefits and $626.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  a  compensable  bilateral  carpal  tunnel  injury  on  or  about \nApril 29, 2023. \n 2. Whether Claimant is entitled to medical treatment for his compensable bilateral carpal \ntunnel injury. \n 3. Whether Claimant is entitled to temporary total disability benefits from May 3, 2023, \nto a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“1.  The  Claimant,  Victor  Melancon,  sustained  a  compensable \nbilateral carpal tunnel injury on April 29, 2023, while working for \nAmerican Contracting Services in Fort Smith, Arkansas. \n \n2.  Despite  objective  evidence  of  injury,  the  Respondents  denied \ncompensability of the Claimant’s injury. \n \n3. The Claimant contends that he is owed medical benefits as well \nas Temporary Total Disability benefits from May 3, 2023, through \na date yet to be determined. \n \n4.  Due  to  the  controversion  of  entitled  benefits,  the  Respondents \nare obligated to pay one half of the Claimant’s attorney’s fees. \n \n5. Claimant reserves the right to raise additional contentions at the \nhearing of this matter.” \n \n The respondents’ contentions are as follows: \n“Respondents  contend  the  claimant  did  not  sustain  a  compensable \ninjury    within    the    course    and    scope    of    his    employment. \n\nMelancon – H330337 \n \n-3- \nRespondents are not responsible for the payment of any medical or \nindemnity benefits.” \n \n The  claimant  in  this  matter  is  a 39-year-old  male who  alleges  to  have  sustained \ncompensable bilateral carpal tunnel injuries on or about April 29, 2023. The claimant worked as \na general laborer for the respondent performing various manual labor tasks including operating a \njackhammer. The respondent is in the business of repairing  and restoring  bridges. The  claimant \nhad  worked  for  the  respondent  on  two  previous  occasions,  and  during  those  periods  of \nemployment  also  engaged  in  manual  labor-type  work  including  jackhammering.  During  the \nclaimant’s  third  and  most  recent  employment  with  the  respondent  he  alleges  compensable \nbilateral  carpal  tunnel  injuries.  That  period  of  work  for  the  respondent  was  a  total  of  14  days. \nThe  claimant  began  work  on  April  17,  2023,  which  was  a  Monday.  For  the  first  week  of  his \nemployment with the respondent, the claimant was unable to work on the bridge itself because of \na problem with his Union dues. Instead of working on the bridge, the claimant was tasked with \nother work including picking up trash for that first week, ending Saturday, April 22, 2023. \n The next week, on Monday, April 24, 2023, the claimant began operating a jackhammer \non the bridge and doing “hydro” which is done by connecting and disconnecting hoses on the \nbridge.  It  was  the  claimant’s  testimony  that  he  was  jackhammering  for  13  hours  straight. \nFollowing is a portion his cross-examination testimony about jackhammering: \nQ Now,  you  complained  that  you  were  jackhammering  13 \nhours  straight  on  two  different  occasions.  So  you  would  get  to \nwork, clock in, get a jackhammer, and you would do that until you \nclocked out? \n \nA Yes, sir. \n \nQ According to your testimony; is that right? \n \nA Yes, sir. \n\nMelancon – H330337 \n \n-4- \n \nQ No breaks. Ate your lunch while you were jackhammering? \n \nA You have to eat whenever you get a chance. \n \nQ Never  got a chance  to  stop,  for  those  two  days  at  least,  is \nthat what the record shows? \n \nA While  I  am  eating  my  sandwich,  I  have  a  jackhammer  in \nmy lap. I don’t want to get sent home. \n \nQ What  you  are  testifying  to  is  that  you  got  no  breaks;  you \ndidn’t get to change positions; you didn’t rotate with anybody? \n \nA Not during those days, I did not. \n \n On  direct  examination  the  claimant  gave  testimony  about  when  his  problems  began, \nreporting them to the supervisor, and seeking medical treatment as follows: \nQ When did you first start noticing problems? \n \nA Maybe the 10\nth\n or 11\nth\n day of me jackhammering. \n \nQ If  we  have  down  April  29\nth\n of  2023  as  your  first  report  of \ninjury, does that sound correct? \n \nA Yes, sir. \n \nQ What were you noticing? \n \nA A  numbing  sensation,  lots  of  tingling.  The  only  way  to \nrelieve it was to raise my hands and shake them (indicating). I was \nbasically  waking  up  in  the  middle  of  the  night  with  pains  like \nshooting from my hands all the way up to my shoulders. \n \nQ Okay. Where was that numbness and tingling located? \n \nA From   the   tip   of   my   fingers   through   my   wrists   and \nsometimes mostly in my shoulder. \n \nQ And your testimony today is you first started noticing those \nsymptoms on April 29\nth\n of 2023; is that correct? \n \nA Yes, sir. \n\nMelancon – H330337 \n \n-5- \n \nQ Now, did you report this to anybody? \n \nA Yes, sir. I told Marcel. He is sitting right there. \n \nQ And  you  say  he  is  sitting  right  there.  Marcel  was  your \nsupervisor while working at this company? \n \nA Yes.   He   was   the   second   in   command   to   the   bridge \nsupervisor named Brian. \n \nQ Okay.  And  when  did  you  report  to  him  that  you  were \nhaving these issues? \n \nA The  29\nth\n when  I  got  off.  When  I  went  home,  I  texted  him \nand told him I was having a hard time opening my right hand. It’s \nclosed shut. I couldn’t open it. And it was hard just texting him. \nAnd I told him it was hard just texting him with my left hand. \n \nQ Okay.  Did  you  ever  have  any  problems  with  your  hands, \nwrists with numbness and tingling in the past? \n \nA Never in my life. \n \nQ How did you report the injury to Marcel? \n \nA By via text. \n \nQ And  what  was  the  response  from  the  company  after  you \nreported the injury? \n \nA I didn’t get a response. \n \nQ Did  your  supervisor  take  any  action  after  this,  after  you \nreported  that  you  were  having  numbness  and  tingling  in  your \nhands? \n \nA No, sir. I had to take action myself. \n \nQ Okay. And how long did you continue to jackhammer after \nthis? \n \nA A few more days until I couldn’t take it anymore. \n \nQ When did you first seek medical attention? \n\nMelancon – H330337 \n \n-6- \n \nA I took off May 2\nnd\n. \n \nQ And  I  will  note  in  the  medical  records  it  looks  like  you \ncalled your doctor on May 2\nnd\n? \n \nA Yes, sir. \n \nQ Okay. Why did you call your doctor on May 2\nnd\n? \n \nA I  wanted  to  seek  some  anti-inflammatory  meds  for  my \nhands to get the swelling to go down. \n \n On  May  2,  2023,  a  medical  record  from  Mercy  Clinic  Primary  Care indicates  the \nclaimant and his wife both called and left messages for the claimant’s primary care physician. \nThose messages follow: \nMessage:  \nPatient works in construction and is needing  an  anti inflammatory \nand pain medication to be called in due to his arms are in pain and \nswollen. Please advise. Thank you. \n*** \nMessage: \nVictor  called  to  give  a  bit  more  info.  He  said  that  his  job  is \nbuilding bridges, and he is running the jackhammer for at least the \nnext week. He is having pain and swelling in the arms due to this, \nand he does not want to lose his job over the health issue. \n \nHe chose to reach out to us rather than go to a walk-in, is since Dr. \nSyed knows his medical history and his med list, she would have a \nbetter idea of what would be safe to take. \n \nThe claimant was seen at Mercy Clinic Primary Care on May 10, 2023, and underwent x-\nrays of his wrists bilaterally: \nReason  For  Exam:  See  Diagnosis.  Numbness  and  tingling  of  both \nupper    extremities;    Numbness    and    tingling    of    both    upper \nextremities; Pain in both upper arms; pain in both upper arms. \n*** \nRight   wrist:   No   acute   fracture   or   dislocation.   No   significant \ndegenerative changes. No osseous erosions. \n \n\nMelancon – H330337 \n \n-7- \nLeft   wrist:   No   acute   fracture   or   dislocation.   No   significant \ndegenerative changes. No osseous erosions. \n \nImpression: \nIMPRESSION: \n1. No radiographic abnormality identified. \n \nDuring  that  visit  the  claimant  was  seen  by  Dr.  Beena  Syed,  his  primary  care  physician. \nFollowing is a portion of that medical report: \nChief Complaint \nFollow  Up  (He  also  wants  to  talk  about  his  hands.  He  hurt  them \nwhile  at  work.  He  was  jack  hammering  on  the  540  bridge  for  too \nlong. Now they are numb and in pain and now the pain is radiating \nto his neck. Can’t feel his finger tips.) \n \nVisit Diagnosis \nNumbness and tingling in both upper extremities (primary) \nPain in upper arms \nWhite coat syndrome with diagnosis of hypertension \n*** \nPROGRESS NOTE: \nPatient  has  hypertension.  He  is  only  taking  lisinopril.  He  stopped \ntaking  his  hydrochlorothiazide  because  it  did  not  make  him  feel \nright. He did not notify office about that. Lately his blood pressure \nis  staying  elevated.  He  states  that  at  home  his  systolic  blood \npressure is in 140s. \nHis  initial  blood  pressure  in  the  office  was  190/110  left  arm  and \n182/110 right arm. Reports no headaches, changes in vision, chest \npain,  shortness  of  breath,  confusion,  slurred  speech.  At  the  end  of \nthe visit it was down to 170/90. \n \nHe has been under stress because of recent hand pain secondary to \njackhammering  at  work.  He  states  that  he  did  it  for  13  hours \nstraight on 2 different occasions. \nOn  April  29  he  did  it  for  13  hours  and  the  problems  started  then. \nHad  pain  tingling  or  numbness  of  both  times  and  he  notified  his \nsupervisor  about  his  hands.  Sunday he  was  off  and  Monday  they \nput  him  on  the  same  job  for  13  hours.  Tuesday  he  took  off. \nWednesday   when   we   went   back   they   put   him   again   for \njackhammering  for  6  hours.  It  gradually  got  worsen  and  now \nradiates  up  to  his  neck,  but  the  worst  is  in  his  hands.  He  has  quit \nthis  job  due  to  persistent  placement  on  jackhammering/task  and \nresulting pain, tingling numbness of his hands. \n\nMelancon – H330337 \n \n-8- \n \nHe has not notified Workmen’s Compensation. He was working \nwith American contracting services, Jefferson Indiana. \nHe reports that this was the third time he was working with them. \nHe never had problems before, but the supervisor was different this \ntime. \nHe  took  Aleve  2  tablets  3  times  a  day  but  he  stopped  it  as  it  was \nhelping him short-term only. Now he is taking 3 aspirins, does not \nknow  the  strength,  but  he  gets  it  from  Dollar  store  and  he  takes  it \ntwice a day and it helps him somewhat. \n \nHe wants to work. He will be joining chicken plant now and he is \nconcerned that his symptoms might be worsened. \n \n On  May  18,  2023,  the  claimant  underwent  a  nerve  conduction  study  at  Mercy  Clinic \nNeurology  on  his  bilateral  upper  extremities,  which  was  performed  by  Dr.  Janice  Keating. \nFollowing is the Impressions section of that diagnostic report: \nIMPRESSION: \n1. Moderately  severe  bilateral  carpal  tunnel  syndrome,  worse  on \nthe right compared to the left. \n2. Ulnar nerve normal bilaterally. \n \n On May 30, 2023, the claimant was again seen by Dr. Syed. Following is a portion of that \nmedical report: \nPROGRESS NOTE: \nHe has been under stress because of recent hand pain secondary to \njackhammering  at  work.  He  states  that  he  did  it  for  13  hours \nstraight on 2 different occasions. \nOn  April  29  he  did  it  for  13  hours  and  the  problems  started  then. \nHad  pain  tingling  or  numbness  of  both  times  and  he  notified  his \nsupervisor  about  his  hands.  Sunday he  was  off  and  Monday  they \nput  him  on  the  same  job  for  13  hours.  Tuesday  he  took  off. \nWednesday   when   we   went   back   they   put   him   again   for \njackhammering  for  6  hours.  It  gradually  got  worsen  and  now \nradiates  up  to  his  neck,  but  the  worst  is  in  his  hands.  He  has  quit \nthis  job  due  to  persistent  placement  on  jackhammering/task  and \nresulting pain, tingling numbness of his hands. \n \nHe  took  Aleve  2  tablets  3  times  a  day  but  he  stopped  it  as  it  was \nhelping him short-term only. Now he is taking 3 aspirins, does not \n\nMelancon – H330337 \n \n-9- \nknow  the  strength,  but  he  gets  it  from  Dollar  store  and  he  takes  it \ntwice a day and it helps him somewhat. \nLast visit he reported that he will try to work in a chicken plant but \nhe could not work for more than 1 day because working there also \nresulted in his symptoms recurrence. \nHe  has  had  nerve  conduction  test  done  and  has  carpal  tunnel \nsyndrome. He was the breadwinner of the family and now his wife \nhas to go back to work because he cannot work and he has to stay \nhome   and   take   care   of   look   after   her   8-year-old   daughter. \nPreviously his mother-in-law was helping with her but now she has \nterminal cancer. \nHe states that even at home doing dishes and other chores results in \npain tingling and numbness of both hands. He has not been able to \nget  wrist  brace  because  he  did  not  have  money.  He  states  that  his \nwife will be paid today so he will start using it. He has been doing \nexercises. \n*** \nPLAN: In addition to above: \nBilateral carpal tunnel syndrome: Discussed with him for going for \nsurgery but he states that he cannot because at this point he has no \none  to  take  care  of  his  daughter  in  the  summer  break.  And  he  has \nto do the household stuff because his wife is working. He will get \nthe  brace  and  start  using.  He  is  doing  exercises.  I  will  also  have \nhim  see  neurology.  We  will  add  Cymbalta  and  it  might  help  him \nwith his symptoms and also with his anxiety. \n \nWhite  coat  syndrome:  Blood  pressure  is  better  today.  Will  add \nhydrochlorothiazide. Continue losartan. \n \n On June 13, 2023, the claimant was again seen by Dr. Syed. Following is a Progress Note \nfrom that visit: \nPROGRESS NOTE: \nPatient  has  come  for  his  follow-up.  He  states  that  he  is  taking \nhydrochlorothiazide  and  losartan  regularly.  He  reports  that  he  is \nchecking   his   blood   pressure   at   home   and   it   has   improved. \nYesterday  it  was  137/80.  He  states  that  starting  Cymbalta  has \nhelped  him  mostly  with  his  anxiety  but  the  current  dose  seems  to \nbe high for him. \nRegarding  carpal  tunnel  he  still  has  significant  problem,  he  has \nordered the brace and he will receive it soon and start using it. \nAlso  has  slight  elevation  in  white  cell  count.  No  fever,  night \nsweats, swollen glands, unintentional weight loss, chronic cough or \ndiarrhea. \n\nMelancon – H330337 \n \n-10- \n \n On June 15, 2023, Dr. Syed referred the claimant to Fort Smith Mercy Orthopedics with a \ndiagnosis  of  bilateral  carpal  tunnel  syndrome.  On  July  25,  2023,  the  claimant  was  seen  by  Dr. \nTrent Johnson at Mercy Orthopedics. Following is a portion Dr. Johnson’s clinic note: \nCHIEF  COMPLAINT:  Numbness  and  tingling  in  the  bilateral \nhands. \n \nHISTORY  OF  PRESENT  ILLNESS:  Mr.  Melancon  is  here  for \nevaluation  of  his  bilateral  hands.  He  is  a  38-year-old  gentleman. \nThe  patient  works  in  construction.  The  patient  has  numbness  and \ntingling in the bilateral hands. Been doing a lot of jack-hammering. \nSince  that  time,  he  has  significantly  worsening  pain,  with  pain  at \nthe  wrists,  as  well  as  numbness  and  tingling  in  the  fingertips.  He \nstates that he has numbness and tingling throughout the day, and in \nthe  evenings.  He  states  that  it  is  mainly  the  thumb,  index,  and \nmiddle  fingers.  He  has  tried  bracing  and  oral  anti-inflammatories \nwith continued symptoms. The patient is right-hand dominant. The \npatient  states  that  the  right  hand  affects  him  somewhat  more,  but \nboth  hands  are  moderately  symptomatic.  He  denies  any  particular \nneck pain, radicular or neurological symptoms. Denies any fever or \nchills. \n*** \nIMPRESSION/DIAGNOSIS:    A    38-year-old    gentleman    with \nbilateral  hands  he  has  carpal  tunnel  syndrome,  this  is  moderately \nsevere.   Treatment   options   are   discussed.   He   has   attempted \nnonoperative management with night-splinting, activity \nrestrictions,  and  oral  anti-inflammatories  with  continued  pain. \nSurgical  intervention  with  risks  and  benefits  of  carpal  tunnel \nrelease were discussed. The patient will go home and consider this \ntreatment option. \n \n The  respondent  in  this  matter  called  Marcel  Pryor,  Jr.  as  a  witness.  Mr.  Pryor  is  a \nsupervisor  for  the  respondent  and  directly  supervised  the  claimant  during  his  employment  with \nthe  respondent  at  which  time  he  alleges  to  have  sustained  compensable  bilateral  carpal  tunnel \nsyndrome.  Mr.  Pryor  gave  direct  examination  testimony  about  the  amount  of  jackhammering \ndone in a workday as follows: \nQ Okay. Tell me how that works out. \n\nMelancon – H330337 \n \n-11- \n \nA So like, okay, I think this is where he gets confused at. He \nhad been on the clock for 12 or 13 hours. \n \nQ Right. \n \nA I think there was some confusion that is coming in because, \nI mean, you’ve probably been on the clock 12, 13 hours, but you \nare  not  working  the  whole – you  are  not  jackhammering  no  13 \nhours. \n \n And you’ve got to sit down to eat holding the hammer, that \nis not the case. You get breaks. It’s up to you when you take your \nbreaks;  you  know  what  I  am  saying?  You  might  hammer  for  two \nhours,  sit  down  for  30.  You  might  hammer  another  two  hours,  sit \ndown for 30. It’s not no when you get there you straight hooking \nup a hammer and hammering for no 13 hours. \n \nQ Now,  do  you  have  enough  hammers  for  everybody  who  is \non the crew to have their own hammer? \n \nA Well,  we  got  multiple  compressors,  but  that  hammer  only \nallowed – that  compressor  only  allows  you  to  hook  up  five \nhammers, maybe. And we have people that is designated to switch \nout  so  everybody – so  you  might  have  five  hammers  going,  but \nyou’ve got six or seven people that is actually there, so you can \nswitch out and rotate with them. \n \nQ Okay. \n \nA Everybody  is  not  hammering.  If  everybody  hammered  13 \nhours, we wouldn’t have nobody. \n \nQ You wouldn’t have enough hammers? \n \nA No. I don’t think they will stay if they’ve got to hammer 13 \nhours straight every day. \n \nQ All  right.  So  you  have  enough  people  to  be  able  to  rotate \npeople in? \n \nA Yes, sir. \n \nQ People can take breaks? \n \n\nMelancon – H330337 \n \n-12- \nA That’s what we do. \n \nQ So  you  are  not  standing  there  hammering  for  13  hours \nstraight each day? \n \nA No, sir. \n \n On cross examination, Mr. Pryor was also asked about the time spent jackhammering by \nthe claimant as follows: \nQ Now, you are not here denying that Mr. Melancon didn’t \njackhammer on the job; is that correct? \n \nA No, sir. \n \nQ And you are not denying that he didn’t jackhammer for at \nleast from your testimony for at least two hours at any given time; \nis that correct? \n \nA Yes. \n \nQ Okay.  And  your testimony was that it’s very common for \nlaborers at American Contracting to jackhammer for two hours at a \ntime and take 30-minute breaks; correct? \n \nA I don’t know if it would be a full two hours. You got some \nguys that’s been doing it for years and they might hold it longer \nthan  two  hours,  but  you  got  some  that  might  just  hold  it  for  an \nhour. We don’t set a time that you have to hold it or nothing like \nthat. When you want to stop, you stop and take a break. \n \nQ So   it   is   up   to   the   individual   persons   on   the   job   to \njackhammer  as  long  as  they  want  to  jackhammer  for,  is  that \ncorrect, and that would include hours at a time? \n \nA No.  We  are  not  going  to  let  you  jackhammer  13  hours \nstraight. \n \nQ Okay. That wasn’t my question. My question was it is up to \nthe  individual  to  jackhammer  as  long  as  they  want  and  that  can \namount to hours at a time? \n \nA Yes, sir. \n \n\nMelancon – H330337 \n \n-13- \nQ Okay.  What  percentage  of  the  day  would  you  say  an \nindividual who was assigned a jackhammer would jackhammer? \n \nA Out   of   a   12-hour,   13-hour   shift,   I   would   say   he   is \njackhammering  between  eight  and  nine  hours.  And  I  say  that \nbecause you have got to think, if you take away that 30 minutes or \n40  minutes  every  time  you  are  stopping,  then  that  adds  up.  If  you \nstop  four  times,  that  is  two  hours  already  gone.  And  in  a  13-hour \nshift, you are going to stop more than four times. \n \nQ So your testimony as we sit here today is that at American \nContracting, it is possible for an individual who is jackhammering \nto jackhammer for nine hours out of their day; is that correct? \n \nA Yeah. \n \n On direct examination, Mr. Pryor was asked about the claimant reporting an injury to him \nas follows: \nQ Now,  did  he  ever  report  to  you  that  he  was  injured  on  the \njob? \n \nA One  particular  day.  So  his  vehicle,  sometimes  he  would \nleave  it  at  the  yard.  Sometimes  he  would  leave  it  at  the  yard  and \nthen  I  will  go  get  him.  So  I  took  him  back  to  the yard  on  this \nparticular day and we was just having a normal guys’ conversation \nand he said he might be a little late in the morning because he had \nto go see his doctor about his blood pressure. And he said, “I am \ngoing to see if she can give me anything.” He said, “I haven’t \nworked  with  you  guys  in  a  long  time.  I  got  to  get  back  used  to \nhammering.” \n \nQ Okay. Did he tell you he had injured himself or was hurt on \nthe job? \n \nA No,  sir.  He  never  said  he  was  injured  or  hurt.  The  only \nthink he said was he got to see his doctor to get his blood pressure \nmedicine and he said that his hands was hurting. He got to get back \nused to hammering. \n \nQ So he didn’t act like that was any particular issue with him, \nat least was your impression; is that correct? \n \nA No, sir. \n\nMelancon – H330337 \n \n-14- \n \nQ Now, had he come to you and said, “I’ve hurt myself on the \njob,” what would you do? \n \nA The  first  thing  I  would  do  is  call  April  Hicks  and  let  her \nknow and she would direct me  what the next step would be, but  I \nalready know that. Take him to the hospital. \n \nQ Okay. Now, is she the HR lady? \n \nA She is the safety lady. \n \n On cross examination, Mr. Pryor was asked about the claimant’s reporting of an injury to \nhim as follows: \nQ Now, your testimony earlier was that Mr. Melancon did not \nreport the injury to you; is that correct? \n \nA Yes, sir. \n \nQ But your testimony was Mr. Melancon said he was hurting \nin his hands from the jackhammer; is that correct? \n \nA He  said  his  hands  were  hurting  because  he  hadn’t \njackhammered in a long time. We was on our way to the yard and \nwe were just having a guys’ conversation and laughing and talking \nand  he  was  telling  me  about  that  he  was  going  to  be  late  the  next \nmorning. And he said, “When I go see my doctor, I am going to \nsee  if  she  can  give  me  something  because  my  hands  are  hurting \nme.” \n \nQ Okay.  And  then  on  5/3,  it  was  your  testimony  that  he  told \nyou  that  his  doctor  said  he  could  not  jackhammer  anymore; \ncorrect? \n \nA He never tell me that. \n \nQ Okay. \n \nA He text me, like I told the Judge, after all of this happening, \nhe didn’t show up the next day or whatever the case may be. So \nwhen I start receiving the text message, he put in the text message \nthat he was getting a lawyer and we were going to have to pay him \nand  he  said  his  hands  is  messed  up  from  hammering.  And  I  said, \n\nMelancon – H330337 \n \n-15- \n“Where is the doctor’s note at ? Did you give me a doctor’s note? \nDid you tell me you went to the doctor?” \n \n He didn’t have – I mean he’s got the text messages because \nwe got them. \n \n This  administrative  law  judge  questioned  Mr.  Pryor  in  order  to  get  clarification  about \nwhen and how he and the claimant had communicated about the claimant’s hands hurting from \njackhammering as follows: \nTHE COURT: I am trying to clarify a note that I took. Sir, \njust  shortly  ago,  you  said  he  did  say  his  hands  were  hurting  from \nhammering. And I know we talked about text messages and all, but \ndid he say that in person or was that a text message? \n \n THE WITNESS: That was a text message. \n \n THE  COURT:  Was  that  recently  or  back  around  the  time \nhe left work? \n \n THE WITNESS: I am not understanding. \n \n THE  COURT:  When  he  told  you  that  his  hands  were \nhurting from hammering – \n \n THE WITNESS: Uh-huh. \n \n THE COURT: -- when did that occur? \n \n THE WITNESS: Me and him, one day me and him was on \n– he  text  one  time  before,  but  that  was  when  after  all  of  this  was \ngoing on and he text me saying his hands was hurting and we was \ngoing to have to pay him. \n \n  But  one  time  before,  me  and  him,  like  I  said,  he \nused  to  drive  his  truck – used  to  drive  his  personal  SUV  to  the \nyard, so I would take him back to the yard to get his vehicle and he \nsaid that he might be a little late in the morning because he had to \ngo to the doctor to get some more medicine for his blood pressure \nand  he  said,  “  I  am  going  to  see  if  my  doctor  can  give  me \nsomething for my hands because my hands is hurting.” He said, “ I \ngot to get back used to jackhammering. I haven’t jackhammered \nwith you guys in a long time.” \n\nMelancon – H330337 \n \n-16- \n \n THE  COURT:  Okay.  So  that  was  an  exchange  while  he \nwas working, still working with the company? \n \n THE WITNESS: Yes, sir. \n \n THE  COURT:  And  then  there  was  an  exchange  later  on \nthrough a text message? \n \n THE WITNESS: Yes, sir. \n \n THE  COURT:  Do  you  remember,  roughly,  how  long  after \nhe quit working that text message was? \n \n THE WITNESS: The next day or even the day after. \n \n THE COURT: Soon after he stopped working? \n \n THE WITNESS: Yeah, but it wasn’t a text message saying \nmy  hand  is  injured.  It  went  straight  to  the  Threads,  whether  I \nGoogled  him  or  whether  he  had  Googled  me.  And  then  he  started \nsaying  we  are  going  to  have  to  pay  him.  We  are  going  to  have  to \npay him. \n \n  And I told him he wasn’t going to do nothing to me \nand I replied how a man is going to reply. That is what I did. But I \nnever text him first or nothing like that. He text me. \n \n THE COURT: Okay. \n \n THE  WITNESS:  He  text  implying  all  of  this  that  we  was \ngoing  to  have  to  pay  him.  He  implied  that  he  is  going  to  get  a \nlawyer and all this kind of stuff like that. \n \n THE COURT: Okay. Thank you. \n \n Mr. Pryor testified on direct examination about asking the claimant to move his truck on \nthe claimant’s last day of employment, which would have been Wednesday, May 3, 2023, as \nfollows: \nQ And  this  would  have  been  the  last  day  that  he  worked;  is \nthat right? \n \n\nMelancon – H330337 \n \n-17- \nA Yes. I told him, I said, “You’ve got trucks coming in and \nout.  Go  move  your  vehicle.”  And  then  I  said,  “When  you  are \nfinished with that, you don’t need to be taping up no more drains \nor nothing. You are supposed to be hammering.” \n \n But he said, “Why can’t me and Roy just finish picking up \npaper and trash like we have been doing for the last couple of days. \nI want to continue to do that.” \n \n I said, “That’s not your job at the time. You are supposed to \nhammer.” So he moved his vehicle and I’ve never seen him again. \n \n So  the  next  day  I  am  calling  him  and  looking  for  him.  He \nnever showed up. So I asked one of the guys where he was at and \nthey showed me a text where he said he’s tired of his job; that he \nwasn’t going to hammer. He didn’t want to hammer. \n \nQ So  did  he  come  back  after  you  had  told  him  to  move  his \ntruck? \n \nA No, sir. \n \n On cross examination, the claimant was questioned about being asked to move his truck \non the last day of his employment with the respondent as follows: \nQ You don’t remember being asked to move your truck and \nthen just getting in your truck and leaving? \n \nA No, sir. \n \nQ Okay. That didn’t happen or you just don’t remember that? \n \nA We had a conversation about my jackhammering and then I \nwas sent home. \n \nQ So you are claiming that he sent you home. You didn’t just \nleave the job? \n \nA He sent me home. \n \nQ Now,  did  you  ever  come  back  or  contact  them  about \nreturning to work at any point after May the 3\nrd\n? \n \nA No, sir. \n\nMelancon – H330337 \n \n-18- \n \n The  claimant  in  this  matter  has  asked  the  Commission  to  determine  whether  or  not  he \nsustained compensable bilateral carpal tunnel syndrome on or about April 29, 2023.  \n In order to prove a compensable carpal tunnel syndrome injury, claimant must satisfy all \nof the following requirements: (1) proof by a preponderance of the evidence of an injury arising \nout of and in the course of his employment; (2) proof by a preponderance of the evidence that the \ninjury caused external or internal physical harm to the body; (3) medical evidence supported by \nobjective findings as defined in A.C.A. §11-9-102(16); and  (4) proof by a preponderance of the \nevidence  that the  injury  was  the  major  cause  of  disability  or  need  for  treatment.  Claimant  does \nnot  have  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  his  job  duties  required \nrapid  repetitive  motion.. Kildow  v.  Baldwin  Piano  &  Organ, 333  Ark.  335,  969  S.W.  2d  190 \n(1998). \nThe  credibility  of  witnesses  and  the  weight  to  be  given  to  their  testimony  are  matters \nsolely within the province of the Commission.  Ringier America v. Combs, 41 Ark. App. 47, 849 \nS.W.2d 1 (1993). \n It  is  clear  that  the  claimant  in  this  matter  overexaggerated  the  amount  of  time  he  spent \noperating  a  jackhammer.  However,  it  is  also  clear  that  he  did  spend  a  great  deal  of  time \njackhammering  on  the  days  that  he  did  so.  I  am  uncertain  if  that  time-period  was  three  or  four \ndays or as many as eight or nine. Either amount is a reasonable time-period to develop bilateral \ncarpal tunnel syndrome given the nature of operating a jackhammer. \n The claimant testified that he informed his supervisor, Mr. Pryor, that he injured himself \njackhammering. Mr. Pryor denies this but does admit the claimant made the following statements \nto  him,  speaking  of  being  late  because  he  was  going  to  the  doctor.  Mr.  Pryor  testified  that  the \n\nMelancon – H330337 \n \n-19- \nclaimant stated “I am going to see if she can give me anything”... “I haven’t worked with you \nguys in a long time. I got to get back used to handling.”; “I am going to see if my doctor can give \nme  something  for  my  hands  because  my  hands  is  hurting.”  ...  “I  got  to  get  back  used  to \njackhammering. I haven’t jackhammered with you guys in a long time.”; “When I go see my \ndoctor I am going to see if she can give me something because my hands are hurting me.” Mr. \nPryor also testified that the claimant, via text message, informed him about his hands hurting and \nthat he was going to get a lawyer and “we was going to have to pay him.” Mr. Pryor was the \nclaimant’s supervisor and while he does not believe the claimant reported an injury to him, his \nown testimony about the claimant’s statements proves otherwise.  \n The claimant on May 2, 2023, missed work but contacted his primary care physician’s \noffice  and  described  his  bilateral  upper  extremity  difficulties  and  related  those  difficulties  to \njackhammering.  The  claimant’s  May  18,  2023,  nerve  conduction  study  shows  “moderately \nsevere bilateral carpal tunnel syndrome, worse on the right compared to the left.” Dr. Johnson at \nMercy Orthopedics recommended surgical intervention as a treatment plan for the claimant’s \nbilateral  carpal  tunnel  syndrome.  The  claimant  is  able  to  prove  by  a  preponderance  of  the \nevidence that he sustained compensable injuries in the form of bilateral carpal tunnel syndrome \non or about April 29, 2023. \n The  claimant  has  asked  the  Commission  to  determine  whether  he  is  entitled  to  medical \ntreatment for his compensable bilateral carpal tunnel syndrome. \nEmployers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n\nMelancon – H330337 \n \n-20- \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d 790 (1996). \n After a review of all the medical records submitted into evidence in this matter, it appears \nthat the treatment the claimant has received thus far is reasonable and necessary treatment for his \ncompensable bilateral carpal tunnel syndrome, including the surgical intervention recommended \nby Dr. Johnson and its after care. \n The claimant has asked the Commission to determine if he is entitled to temporary total \ndisability benefits from May 3, 2023, to a date yet to be determined.  \nA  claimant  who  suffers  a  scheduled  injury  is  entitled  to  receive  temporary  total  or \ntemporary  partial  disability  benefits  during  their  healing  period  or  until  they  return  to  work, \nregardless  of  whether  there  is  a  total  incapacity  to  earn  wages. Wheeler  Construction  Co.  v. \nArmstrong,  73 Ark. App. 146, 41 S.W. 3d 822 (2001). \n In  the  present  matter,  the  claimant  has  sustained  scheduled  injuries  in  the  form  of \nbilateral carpal tunnel syndrome. The claimant was at the time of hearing in this matter still in his \nhealing  period.  The  claimant  had  during  the  time  period  after  his  compensable  April  29,  2023, \ninjury  worked  for  a  different  employer  but  was  not  employed  at  the  time  of  the  hearing  in  this \nmatter.   The   claimant   is   entitled   to   temporary   total   disability   benefits   for   his   scheduled \ncompensable injuries from May 4, 2023, until a date yet to be determined, less any period of time \nin which the claimant was employed by another employer. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \n\nMelancon – H330337 \n \n-21- \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nNovember  27,  2023,  and  contained  in  a  Pre-hearing  Order  filed December  5,  2023,  are  hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  sustained \ncompensable bilateral carpal tunnel injuries on or about April 29, 2023. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nmedical   treatment   for   his   compensable bilateral carpal   tunnel   injuries.   This   includes \nreimbursement  for  any  out-of-pocket  expenses  related  to  the  medical  treatment  admitted  as \nevidence in this matter regarding the claimant’s bilateral carpal tunnel syndrome. \n 4.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is entitled  to \ntemporary  total  disability  benefits  from  May  4,  2023,  to  a  date  yet  to  be  determined,  less  any \nperiod of time in which the claimant has been employed by another employer. \n 5.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney fee in this matter. \n ORDER \nThe  respondent  shall  pay  for  the  reasonable  and  necessary  medical  treatment  associated \nwith  the  claimant’s  compensable  bilateral  carpal  tunnel  syndrome,  including  the  surgical \nrecommendation of Dr. Johnson. The respondent shall also be responsible for any out-of-pocket \nmedical expenses related to the medical treatment admitted as evidence in this matter regarding \nthe claimant’s bilateral carpal tunnel syndrome. The respondent shall pay the claimant temporary \n\nMelancon – H330337 \n \n-22- \ntotal disability benefits from May 4, 2023, to a date yet to be determined, less any time-period in \nwhich the claimant was employed by another employer. \n The respondent shall pay to the claimant’s attorney the maximum statutory attorney’s \nfee  on  the  benefits  awarded  herein,  with  one-half  of said  attorney’s  fee  to  be  paid  by  the \nrespondent in addition to such benefits and one-half of said attorney’s fee to be withheld by the \nrespondent from such benefits pursuant to Ark. Code Ann. § 11-9-715. \n All sums herein accrued are payable in a lump sum and without discount and shall earn \ninterest at the legal rate until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":39583,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H303337 VICTOR MELANCON, Employee CLAIMANT AMERICAN CONTRACTING SERVICES, INC., Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED JULY 2, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County,...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["carpal tunnel","shoulder","wrist","fracture","neck","back","repetitive"],"fetchedAt":"2026-05-19T22:50:46.905Z"},{"id":"alj-H305915-2024-07-02","awccNumber":"H305915","decisionDate":"2024-07-02","decisionYear":2024,"opinionType":"alj","claimantName":"Christa Obrecht","employerName":null,"title":"OBRECHT VS. CADDO HILLS SCHOOL DISTRICTAWCC# H305915July 2, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/OBRECHT_CHRISTA_H305915_20240702.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OBRECHT_CHRISTA_H305915_20240702.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H305915 \n \nCHRISTA OBRECHT, Employee      CLAIMANT \n \nCADDO HILLS SCHOOL DISTRICT, Employer   RESPONDENT \n \nAR SCHOOL BOARDS ASSOC., Carrier/TPA     RESPONDENT \n \n \n OPINION FILED JULY 2, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Russellville, Pope \nCounty, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n. \n \nRespondent represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \nThis case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn September  22,  2023,  the  claimant  requested  a  hearing  for various  compensation \nbenefits  in  which she alleged an  injury  to  her  right  knee on  or  about September  5,  2023.  The \nclaim was denied in its entirety. A request to complete a pre-hearing questionnaire was mailed to \nthe claimant on November 6, 2023, and again on December 13, 2023, both went unanswered. \n On March 26, 2024, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. A hearing was scheduled for June 20, 2024. Notice of that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on May  13,  2024. \nUnited States Postal Department records indicate that claimant received and signed for the notice \n\nObrecht – H305915 \n \n-2- \non May 22, 2024. Despite having received notice of the scheduled hearing, the claimant failed to \nappear at the hearing and has failed to respond to the motion in any form or manner. \nAfter  a  review  of  the  record  as  a  whole,  to  include  all  matters  properly  before  the \nCommission,  and  having  had  an  opportunity  to  hear  the  statements  of  Respondent  No.  1’s \nattorney,  I  find  that  this  matter  should  be  dismissed  without  prejudice  for  failure  to  prosecute \npursuant to Commission Rule 099.13. \n ORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2503,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H305915 CHRISTA OBRECHT, Employee CLAIMANT CADDO HILLS SCHOOL DISTRICT, Employer RESPONDENT AR SCHOOL BOARDS ASSOC., Carrier/TPA RESPONDENT OPINION FILED JULY 2, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope County, Arkans...","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:50:48.969Z"},{"id":"alj-H305138-2024-07-01","awccNumber":"H305138","decisionDate":"2024-07-01","decisionYear":2024,"opinionType":"alj","claimantName":"Tambria Means","employerName":null,"title":"MEANS VS. AIRGAS DRY ICEAWCC# H305138July 1, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Means_Tambria_H305138_20240701.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Means_Tambria_H305138_20240701.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305138 \n \nTAMBRIA MEANS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nAIRGAS DRY ICE, \nEMPLOYER                                                                                                         RESPONDENT  \n \nSTARR SPECIALTY INSURANCE CO., \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nAMENDED OPINION FILED JULY 1, 2024 \n \nHearing conducted on Wednesday, June 20, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Tambria L. Means, pro se, of Little Rock, Arkansas, did not appear in person \nat the hearing.  \n \nThe Respondents were represented by the Honorable Rick Behring Jr., Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on June 20, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe  Claimant  worked  for  the  Respondent/Employer  as  a delivery  driver. The date  for \nClaimant’s alleged injury was on July 11, 2023. She reported her injury to Respondent/Employer \non August 15,  2023. Admitted  into  evidence  was Respondents Exhibit  1,  pleadings and \ncorrespondence, consisting of fifteen pages. I have also blue-backed a certified returned envelope \nreceived June 11, 2024, as discussed infra. \nThe  record  reflects on August 11,  2023,  a  Form AR-C  was  filed  with  the  Commission \nthrough Claimant’s then-attorney, Mark Peoples, purporting an alleged shoulder injury. This report \n\nMEANS, AWCC No. H305138 \n \n2 \n \ndoesn’t state which shoulder was injured. On August 23, 2023, a Form AR-1 was filed in this case, \nreflecting  that  Claimant  purportedly reported  to  her manager  that she  woke  up  with  pain. This \nrecord does not reflect where the pain was located. Respondents on August 23, 2023, filed a Form \nAR-2, challenging the compensability of Claimant’s alleged injury. In short, this report states that \nClaimant’s injury doesn’t meet the burden of proof for a workers’ compensation claim. Attorney \nRick  Behring entered  his  appearance  on  behalf  of  the  Respondents  on September 6,  2023. On \nNovember 28, 2023, the Claimant requested a hearing with the Commission. However, on January \n22, 2024, the Claimant, through counsel, withdrew the hearing request and the file was returned to \ngeneral  files. Attorney  Peoples filed  a  Motion  to  Withdraw  as  Counsel that  was  granted on \nFebruary 26, 2024. \nThe Respondents next filed a Motion to Dismiss on April 10, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The Claimant  was  sent, certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss from my office on April 15, 2024, her last known address. The \ncertified notice was not claimed by Claimant. However, the notice sent regular U.S. Mail was not \nreturned to the Commission. Claimant did not respond to the notice in writing as required. Thus, \nin accordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice \nof Respondents’ Motion to Dismiss hearing date at her current address of record via the United \nStates Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and regular \nFirst-Class Mail, on May 10, 2024. The certified notice was returned to the Commission unclaimed \nbut the regular First-Class mail notices were not returned. The hearing took place on June 20, 2024. \nAs mentioned before, the Claimant did not show up to the hearing. \n \n \n\nMEANS, AWCC No. H305138 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the June 20, 2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith  proper  notice, on  the Respondents’ Motion  to Dismiss. Though  the  hearing  notice  was \nunclaimed and returned to the Commission on June 11, 2024, the same notice was also sent to the \nClaimant’s address of record by First-Class U.S. Mail on May 10, 2024, and did not return to the \nCommission. The Claimant is responsible for providing the Commission with her current address. \nThe  Commission  is  responsible  for  providing  reasonable  notice  of  a  hearing  to  the  Claimant. \nSending  a  hearing  notice  to  the  last  known  address  that  was  provided  to  it  by  the  Claimant  is \nreasonable. Thus, I find by the preponderance of the evidence that reasonable notice was given to \nboth parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  her Form  AR-C  on \nAugust 11, 2023, and requested a hearing on November 28, 2023, through her then-attorney Mark \n\nMEANS, AWCC No. H305138 \n \n4 \n \nPeoples. However, on January 22, 2024, Attorney Peoples withdrew the request for a hearing and \nthe Claim was returned to general files. Since then, Claimant has not made a demand for a hearing \nor has taken any other action in furtherance of this claim. In this regard, the Claimant has failed to \ndo the bare minimum in prosecuting her claim. Therefore, I do find by the preponderance of the \nevidence  that  Claimant  has  failed  to  prosecute  her claim  by  failing  to  request  a  hearing.  Thus, \nRespondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6831,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305138 TAMBRIA MEANS, EMPLOYEE CLAIMANT AIRGAS DRY ICE, EMPLOYER RESPONDENT STARR SPECIALTY INSURANCE CO., CARRIER/TPA RESPONDENT AMENDED OPINION FILED JULY 1, 2024 Hearing conducted on Wednesday, June 20, 2024, before the Arkansas Workers’ Compensation Comm...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:50:40.534Z"},{"id":"alj-H304660-2024-06-28","awccNumber":"H304660","decisionDate":"2024-06-28","decisionYear":2024,"opinionType":"alj","claimantName":"Latoshia Blakley","employerName":null,"title":"BLAKLEY VS. SHERWOOD ELEMENTARY SCHOOLAWCC# H304660June 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Blakley_Latoshia_H304660_20240628.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Blakley_Latoshia_H304660_20240628.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H304660 \n \nLATOSHIA S. BLAKLEY, \nEMPLOYEE                                                                                                              CLAIMANT \n \nSHERWOOD ELEMENTARY SCHOOL, \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nARKANSAS SCHOOL; BOARD ASSN., \nTHIRD-PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \n \nOPINION FILED JUNE 28, 2024 \n \nHearing conducted on Wednesday, June 25, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Latoshia S. Blakley, pro se, of Conway, Arkansas, did not appear in person at \nthe hearing.  \n \nThe Respondents were represented by the Honorable Carol L. Worley. However, the Motion to \nDismiss was argued by her law partner, Melissa Wood, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on June 25, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe Claimant worked for the Respondent/Employer as a child nutrition director. The date \nfor Claimant’s  alleged injury   was   on October 7,   2022. She   reported   her injury   to \nRespondent/Employer  on the  same  day. Admitted  into  evidence  was Respondents Exhibit  1, \npleadings and correspondence,  consisting  of eleven  pages. I  have  also  blue-backed a certified \nreturned receipt dated June 6, 2024, and Melanie Miller email dated May 22, 2024, as discussed \ninfra. \n\nBLAKLEY, AWCC No. H304660 \n2 \n \nThe record reflects on July 25, 2023, a Form AR-C was filed with the Commission through \nClaimant purporting she  injured herself  when  she  was  putting  away  cases  of  canned  fruit  she \ndelivered to the school on October 7, 2022. On July 26, 2023, a Form AR-1 was filed in this case, \nreflecting that Claimant injured her right shoulder and bicep area. Respondents on July 26, 2023, \nfiled a Form AR-2, along with a letter, accepting compensability.  \nThe Respondents’ counsel, Carol L. Worley, entered her appearance and filed a Motion to \nDismiss on April 19,  2024, requesting  this  claim  be  dismissed  for a lack  of  prosecution. The \nClaimant was sent, certified and regular U.S. Mail, notice of the Motion to Dismiss from my office \non April 30,  2024, to her last  known  address.  The certified  notice  was claimed by  Claimant on \nMay 3, 2024. The same notice was  also sent  regular  U.S.  Mail and did not return to  the \nCommission. Claimant did not respond to the notice in writing as required. Thus, in accordance \nwith  applicable  Arkansas  law,  the Claimant  was  mailed  due  and  proper  legal  notice  of \nRespondents’ Motion to Dismiss hearing date at her current address of record via the United States \nPostal  Service  (USPS), First  Class  Certified  Mail,  Return  Receipt  Requested, and  regular  First-\nClass Mail, on May 22, 2024. The certified notice was returned to the Commission unclaimed on \nJune 6, 2024, but the regular First-Class mail notice was not returned. The hearing took place on \nJune 25, 2024. As mentioned before, the Claimant did not show up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the June 25, 2024, \nhearing. \n \n\nBLAKLEY, AWCC No. H304660 \n3 \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith  proper  notice, on  the Respondents’ Motion  to Dismiss. Though  the  hearing  notice  was \nunclaimed and returned to the Commission on June 6, 2024, the same notice was also sent to the \nClaimant’s address of record by First-Class U.S. Mail on May 22, 2024, and did not return to the \nCommission. The Claimant is responsible for providing the Commission with her current address. \nThe  Commission  is  responsible  for  providing  reasonable  notice  of  a  hearing  to  the  Claimant. \nSending  a  hearing  notice  to  the  last  known  address  that  was  provided  to it  by  the  Claimant  is \nreasonable. Thus, I find by the preponderance of the evidence that reasonable notice was given to \nboth parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant filed her Form AR-C on July \n25, 2023, and since then, Claimant has not made a demand for a hearing or has taken any other \naction in furtherance of the prosecution of this claim. In this regard, the Claimant has failed to do \nthe  bare  minimum  in  prosecuting  her claim.  Therefore,  I  do  find  by  the  preponderance  of  the \nevidence that Claimant has failed to prosecute her claim by failing to request a hearing and moving \nher claim forward. Thus, Respondents’ Motion to Dismiss should be granted. \n \n \n\nBLAKLEY, AWCC No. H304660 \n4 \n \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6223,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H304660 LATOSHIA S. BLAKLEY, EMPLOYEE CLAIMANT SHERWOOD ELEMENTARY SCHOOL, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS SCHOOL; BOARD ASSN., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 28, 2024 Hearing conducted on Wednesday, June 25, 2024, before th...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:53:26.098Z"},{"id":"alj-H303553-2024-06-28","awccNumber":"H303553","decisionDate":"2024-06-28","decisionYear":2024,"opinionType":"alj","claimantName":"Shaun Campbell","employerName":null,"title":"CAMPBELL VS. FUTUREFUELCHEMICAL CO.AWCC# H303553June 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/CAMPBELL_SHAUN_H303553_20240628.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CAMPBELL_SHAUN_H303553_20240628.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H303553 \n \nSHAUN CAMPBELL, EMPLOYEE    CLAIMANT \n \nFUTUREFUELCHEMICAL CO., EMPLOYER   RESPONDENT \n \nEMPLOYERS IN. CO. OF WAUSA, TPA/CARRIER  RESPONDENT \n \n           \n \n \nOPINION FILED JUNE 28, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Batesville, \nArkansas on June 26, 2024. \n \nClaimant is Pro Se and failed to appear. \n \nRespondents are represented by their attorney, Rick Behring, Jr., Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on June 26, 2024, in Batesville, \nArkansas on respondent’s Motion to Dismiss for failure to prosecute pursuant to A.C.A. \n11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  The claimant \nwas pro se and failed to appear for the hearing. The claimant had been previously \n\nrepresented by Laura Beth York, who had been allowed to withdraw by an Order of the \nFull Commission, dated March 20, 2024. Claimant had filed a Form AR – C on or about \nJune 1, 2023, contending the claimant was injured during the course and scope of \nemployment, with injuries to the back, neck, head, right arm, right shoulder, left \nshoulder, and whole body.  A First Report of Injury was filed on June 5, 2023, that \nprovided the claimant while unhooking a railcar with a wrench, and while pulling back on \nthe wrench, developed a pain between the shoulder blades.  An AR – 2 was filed on or \nabout June 5, 2023, and the claim was accepted as compensable.     \n A Motion to Dismiss was filed on or about April 1, 2024, requesting that the \nmatter be dismissed for failure to prosecute pursuant to A.C.A. 11-9-702(a) (4) and Rule \n099.13.  The claimant has not requested a hearing to date and more than six months \nhave passed since the filing of the original claim.  Respondent stated through their \nattorney that they had submitted discovery that was not responded to.  Additionally, the \nclaimant had reached MMI prior to the above hearing date and was paid an impairment \nrating.   \n Appropriate notice was provided to the claimant notifying of a hearing on the \nMotion to Dismiss on June 26, 2024, in Batesville, Arkansas.  The claimant did not file a \nresponse and failed to appear on the hearing date.  At the time of the hearing, Rick \nBehring, Jr., appeared on behalf of the Respondents and asked that the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for \nthe Respondent, it is found that this matter should be dismissed without prejudice, for \n\nfailure to prosecute pursuant to A.C.A. 11-9-702 and Rule 099.13 of the Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to \ndismiss this claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3064,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303553 SHAUN CAMPBELL, EMPLOYEE CLAIMANT FUTUREFUELCHEMICAL CO., EMPLOYER RESPONDENT EMPLOYERS IN. CO. OF WAUSA, TPA/CARRIER RESPONDENT OPINION FILED JUNE 28, 2024 Hearing before Administrative Law Judge James D. Kennedy in Batesville, Arkansas on June 26,...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["back","neck","shoulder"],"fetchedAt":"2026-05-19T22:53:28.184Z"},{"id":"alj-H306897-2024-06-28","awccNumber":"H306897","decisionDate":"2024-06-28","decisionYear":2024,"opinionType":"alj","claimantName":"Stephanie Dority","employerName":null,"title":"DORITY VS. ACE HARDWARE CORP.AWCC# H306897June 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Dority_Stephanie_H306897_20240628.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Dority_Stephanie_H306897_20240628.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306897 \n \nSTEPHANIE DORITY, \nEMPLOYEE                                                                                                              CLAIMANT \n \nACE HARDWARE CORP., \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nINDEMNITY INS. CO. OF NORTH AMERICA, \nCARRIER                                                                                                             RESPONDENT \n \nESIS, INC., \nTHIRD-PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \n \nOPINION FILED JUNE 28, 2024 \n \nHearing conducted on Wednesday, June 25, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Stephanie L. Dority, pro se, of Conway, Arkansas, did not appear in person at \nthe hearing.  \n \nThe Respondents were represented by the Honorable Michael E. Ryburn, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on June 25, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe  Claimant  worked  for  the  Respondent/Employer  as  a delivery  driver. The date  for \nClaimant’s  alleged injury    was    on October 7,    2022. She    reported    her injury    to \nRespondent/Employer  on the  same  day. Admitted  into  evidence  was Respondents Exhibit  1, \nMotion  to  Withdraw  and  Form  AR-C,  consisting  of three  pages. I  have  also  blue-backed Form \n\nDORITY, AWCC No. H306897 \n2 \n \nAR-1, Form AR-2, a certified returned receipt dated June 8, 2024, Melanie Miller email dated May \n23, 2024, and Motion to Dismiss hearing notice, as discussed infra. \nThe  record  reflects on October 20,  2023,  a  Form AR-C  was  filed  with  the  Commission \nthrough Claimant’s then-attorney, Mark Peoples, purporting she injured her neck, back, leg, knee, \nand head. On October 31, 2023, a Form AR-1 was filed in this case, reflecting that Claimant injured \nherself while moving product off a pallet when her right foot was caught, and she fell. Respondents \non October  31,  2023,  filed  a  Form  AR-2, accepting compensability. Respondents’ Counsel, \nMichael Ryburn, entered his appearance on November 9, 2023. Attorney Peoples filed a motion \nto Withdraw on February 26, 2024, citing differences of opinion regarding the prosecution of this \ncase. The Motion to Withdraw was granted on March 20, 2024.  \nThe Respondents’ filed a Motion to Dismiss on April 18, 2024, requesting this claim be \ndismissed for a lack of prosecution. The Claimant was sent, certified and regular U.S. Mail, notice \nof the Motion to Dismiss from my office on April 24, 2024, to her last known address. The certified \nnotice was returned unclaimed by Claimant on May 9, 2024. The notice sent regular U.S. Mail did \nnot  returned  to  the  Commission. Claimant  did  not  respond  to the notice in  writing as  required. \nThus, in accordance with applicable Arkansas law, the Claimant was mailed due and proper legal \nnotice  of Respondents’ Motion  to Dismiss  hearing date at  her current  address  of  record  via  the \nUnited States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and \nregular First-Class Mail, on May 23, 2024. The certified notice was returned to the Commission \nunclaimed, but  the  regular  First-Class  mail  notice  was not  returned. The  hearing  took  place on \nJune 25, 2024. As mentioned before, the Claimant did not show up to the hearing. \n \n \n\nDORITY, AWCC No. H306897 \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the June 25, 2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith  proper  notice, on  the Respondents’ Motion  to Dismiss. Though  the  hearing  notice  was \nunclaimed and returned to the Commission on June 8, 2024, the same notice was also sent to the \nClaimant’s address of record by First-Class U.S. Mail on May 23, 2024, and did not return to the \nCommission. The Claimant is responsible for providing the Commission with her current address. \nThe  Commission  is  responsible  for  providing  reasonable  notice  of  a  hearing  to  the  Claimant. \nSending  a  hearing  notice  to  the  last  known  address  that  was  provided  to it  by  the  Claimant  is \nreasonable. Thus, I find by the preponderance of the evidence that reasonable notice was given to \nboth parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  her Form  AR-C  on \nOctober 20, 2023, and since then, Claimant has not made a demand for a hearing or has taken any \n\nDORITY, AWCC No. H306897 \n4 \n \nother action in furtherance of the prosecution of this claim. In this regard, the Claimant has failed \nto do the bare minimum in prosecuting her claim. Therefore, I do find by the preponderance of the \nevidence that Claimant has failed to prosecute her claim by failing to request a hearing and moving \nher claim forward. Thus, Respondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6555,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H306897 STEPHANIE DORITY, EMPLOYEE CLAIMANT ACE HARDWARE CORP., SELF-INSURED EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA, CARRIER RESPONDENT ESIS, INC., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 28, 2024 Hearing conducted on Wednesda...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3"],"injuryKeywords":["neck","back","knee"],"fetchedAt":"2026-05-19T22:53:30.327Z"},{"id":"alj-H304138-2024-06-28","awccNumber":"H304138","decisionDate":"2024-06-28","decisionYear":2024,"opinionType":"alj","claimantName":"Bryan Taylor","employerName":null,"title":"TAYLOR VS. CENTRAL ARKANSAS AUTO PAINTINGAWCC# H304138June 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Taylor_Bryan_H304138_20240628.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Taylor_Bryan_H304138_20240628.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H304138 \n \n \nBRYAN TAYLOR, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nCENTRAL ARKANSAS AUTO PAINTING,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nEMPLOYERS PEFERRED INSURANCE, \nTHIRD PARTY ADMINISTRATOR/TPA                                                            RESPONDENT                  \n \nOPINION FILED JUNE 28, 2024   \n \nHearing before  Administrative Law Judge Chandra  L.  Black, in Little  Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, failed to appear at the hearing.        \n \nRespondents represented by the Honorable Erin Rambo, Attorney at Law, Fort Smith, Arkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on June 19, 2024 , in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (a)(4), and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \n The record consists of the transcript of the June 19, 2024, hearing and the documents held \ntherein.  Commission’s Exhibit No. 1 includes sixteen (16) pages consisting of the Form AR-C, \npleadings, and various correspondence.   \n No testimony was taken. \n \n\nTAYLOR – H304138 \n \n2 \n \n                                                            Procedural History \n On June 29, 2023, the Claimant filed a Form AR-C with the Commission alleging that he \nsustained  a compensable  injury during  the  course  and  in  the  scope  of  his employment with  the \nrespondent-employer on April 19, 2023.  Specifically, per this document, the Claimant alleged that \nhe sustained two hernias while performing his employment duties.  According to the Claimant’s \naccount of how his injury occurred, he stated that he was told to lift a truck bed off a frame and \nmove it.  He maintained that the straining caused two hernias in his lower abdomen.  The Claimant \nlisted on  the  Form  AR-C  that he  was  requesting  initial  benefits  in  the  form  of  temporary  total \ndisability compensation and medical expenses.  \n  The  respondent-insurance-carrier  filed  a  Form  AR-2, with  the  Commission  on July  27, \n2023, wherein  they controverted compensability of  the  claim.   The Respondents stated, “No \ncoverage.  AM Trust Financial Service, Inc. is not the carrier of record for the insured and the date \nof loss.”     \nSince the filing of the Form AR-C, there has been no affirmative action taken on the part \nof  the  Claimant  to  prosecute  his  claim, or  otherwise  pursue any  type  of benefits.  In  fact,  the \nClaimant has not ever filed a request for a hearing in this matter.  \nTherefore, on or about May 1, 2024, the Respondents filed a Motion to Dismiss, with the \nCommission,  along  with a  Certificate  of  Service  to  the Claimant.  Per  this  documentation,  the \nRespondents  confirmed  that  they  served  a  true  and  correct  copy  of  the above  and foregoing \npleading, which was to be forwarded the Claimant by way of first-class mail on that same day, via \nregular mail with the United States Postal Service.          \n\nTAYLOR – H304138 \n \n3 \n \n  The  Commission  sent  a letter to  the Claimant on May  2,  2024, informing him of the \nRespondents’ motion, and a deadline of twenty (20) days, for filing a written response.  This notice \nwas sent via first-class and certified mail with the Postal Service.   \nOn May 6, 2024, the Postal Service informed the Commission that this item was delivered \nto  the Claimant’s home and  left  with  an  individual.  The  proof  of  delivery appears  to  bear the  \nsignature of a certain recipient of this parcel of mail as being a Joseph Patrick.  However, the letter \nnotice sent to the Claimant by first-class mail has not been returned to the Commission.  \nYet, there was no response from the Claimant.   \n  Pursuant to a Hearing Notice dated May 20, 2024, the Commission notified the parties that \nthis matter had been set for a hearing on the Respondents’ Motion to Dismiss. Said hearing was \nscheduled for June 19, 2024, at 12:00 p.m., at the Commission, in Little Rock, Arkansas.  This \nnotice of the dismissal proceedings was sent via first-class and certified mail with the United States \nPostal Service.   \nThe tracking information received from the Postal Service shows that they delivered the \nnotice of the dismissal proceedings to the Claimant’s residence on May 23, 2024.   Information \nreceived from the Post Office by the Commission shows that an individual at the Claimant’s home \nsigned  for the Hearing Notice  and  took  delivery  of  this  parcel  of  mail.    The  signature  of  the \nrecipient for delivery shows that the notice of the dismissal proceedings was left with an individual \nby the name of Joseph Patrick.  The notice of the dismissal hearing sent to the Claimant by first-\nclass  mail  has  not  been  returned  to  the  Commission. Therefore,  the evidence before  me \npreponderates that the Claimant received notice of the dismissal hearing.   \nStill, there was no response from the Claimant.     \n\nTAYLOR – H304138 \n \n4 \n \nNevertheless,  a dismissal hearing  was  in  fact  conducted  on the  Respondents’ motion as \nscheduled.    The Claimant did  not appear at the hearing.    However, the  Respondents appeared \nthrough  their  attorney.  The  Respondents’  attorney asserted  that  the Claimant  has  failed  to \nprosecute his claim for workers’ compensation benefits and that it should be dismissed for want \nof prosecution.  Counsel further noted that the Claimant has not asked for a hearing since the filing \nof the Form AR-C, which was done more than six (6) months ago.  Therefore, the Respondents’ \nattorney essentially moved that  this  claim  be  dismissed  based  on  the  time  timing  of  the  events \ndescribed above and the history of the claim involving a lack of prosecution under Ark. Code Ann. \n§11-9-702, and Commission Rule 099.13. \n                                        Adjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in this \nmotion for dismissal of this claim are outlined below:  \nSpecifically, Ark. Code Ann. §11-9-702(a)(4) provides:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \n\nTAYLOR – H304138 \n \n5 \n \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n \nMy review of the evidence shows that the Claimant has had ample time to pursue his claim \nworkers’ compensation benefits, but he has failed to do so.  Specifically, the Claimant has not ever \nrequested a hearing or otherwise attempted to prosecute his claim for benefits since the filing of \nthe Form AR-C, which was done more than six (6) months ago.  Most notably, the Claimant has \nnot  responded  to  the  Notices  of  this  Commission, nor  has  he contested the  dismissal  request or \nobjected to his claim being dismissed.           \nTherefore, after consideration of the evidence before me, I find the Respondents’ Motion \nto  Dismiss to  be  well  taken.  Accordingly, pursuant  to  Ark. Code  Ann. §11-9-702 (a)(4), and \nCommission  Rule  099.13,  this  claim for workers’ compensation benefits is  hereby dismissed \nwithout  prejudice to  the  refiling of  it within  the limitation  period specified by the  applicable \nlimitation period. \n       FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704. \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents  filed  with  the  Commission a Motion to  Dismiss this   \nclaim, for want of prosecution for which a hearing was held. \n \n3. The Claimant has not requested a hearing since the filing of the Form AR-\nC,  which  was done more  than  six  (6)  months  ago.    Hence,  the evidence \npreponderates  that  the  Claimant  has  failed  to  prosecute  his  claim  for \nworkers’ compensation benefits based upon the relevant provisions of the \nspecified statute, Ark. Code Ann. §11-9-702 (a)(4), and Rule 099.13 of this \nCommission.       \n \n\nTAYLOR – H304138 \n \n6 \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion for dismissal of this claim for want of prosecution \nis  hereby  granted, without  prejudice, under  the  provisions  of Ark.  Code \nAnn. §11-9-702 (a)(4),  and  Commission  Rule  099.13,  to  the  refiling  of  it \nwithin the limitation period specified by law.  \n \n                                            ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut  to  dismiss  this  claim  for more workers’ compensation benefits.  This  dismissal is  hereby \nordered pursuant  to  Ark.  Code  Ann.  §11-9-702 (a)(4), and Commission  Rule  099.13, without \nprejudice to the refiling of this claim within the limitation period specified under the Act. \n          IT IS SO ORDERED. \n    \n                    \n____________________________________ \n             Chandra L. Black \n       Administrative Law Judge","textLength":10872,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H304138 BRYAN TAYLOR, EMPLOYEE CLAIMANT CENTRAL ARKANSAS AUTO PAINTING, EMPLOYER RESPONDENT EMPLOYERS PEFERRED INSURANCE, THIRD PARTY ADMINISTRATOR/TPA RESPONDENT OPINION FILED JUNE 28, 2024 Hearing before Administrative Law Judge Chandra L. Black, in Litt...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:53:32.400Z"},{"id":"alj-H205510-2024-06-28","awccNumber":"H205510","decisionDate":"2024-06-28","decisionYear":2024,"opinionType":"alj","claimantName":"Dale Taylor","employerName":null,"title":"TAYLOR VS. BAD BOY MOWERS, LLCAWCC# H205510June 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TAYLOR_DALE_H205510_20240628.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TAYLOR_DALE_H205510_20240628.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H205510 \n \nDALE H. TAYLOR, EMPLOYEE     CLAIMANT \n \nBAD BOY MOWERS, LLC, EMPLOYER   RESPONDENT \n \nCHUBB INDEMNITY INSURANCE CO., TPA/CARRIER RESPONDENT \n \n           \n \n \nOPINION FILED JUNE 28, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Batesville, \nArkansas, on June 26, 2024. \n \nClaimant is Pro Se and appeared on his own behalf. \n \nRespondents are represented by their attorney, Rick Behring, Jr., Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on June 26, 2024, in Batesville, \nArkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to A.C.A. \n11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  The claimant \nwas pro se and appeared on his own behalf and objected to the dismissal of his claim. \n\nThe claimant had been previously represented by Laura Beth York, who had been \nallowed to withdraw by an Order of the Full Commission, dated June 29, 2023.  A \nMotion to Dismiss had been previously filed and the Claimant failed to appear at the \ntime of the hearing.  The previous Motion to Dismiss was granted without prejudice, \nafter a hearing in regard to the motion on October 10\nth\n, 2023.      \n A second Motion to Dismiss was filed on or about April 30, 2024, requesting that \nthe matter be dismissed for failure to prosecute pursuant to A.C.A. 11-9-702(a) (4) and \nRule 099.13.     \n Appropriate notice was provided to the claimant who did appear timely at the \ntime of the hearing on the Motion to Dismiss on June 26, 2024, in Batesville, Arkansas.    \nAt the time of the hearing, Rick Behring, Jr., appeared on behalf of the Respondents \nand asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for \nthe Respondent as well as the claimant, the Motion to Dismiss was denied.  The \nClaimant was instructed that he would be responsible for the timely filing of discovery \nand other documents in regard to the pursuit of his claim in a timely manner. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to deny \nthe Motion to Dismiss. \n \n\n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2425,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205510 DALE H. TAYLOR, EMPLOYEE CLAIMANT BAD BOY MOWERS, LLC, EMPLOYER RESPONDENT CHUBB INDEMNITY INSURANCE CO., TPA/CARRIER RESPONDENT OPINION FILED JUNE 28, 2024 Hearing before Administrative Law Judge James D. Kennedy in Batesville, Arkansas, on June 26...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:53:34.471Z"},{"id":"alj-H306183-2024-06-27","awccNumber":"H306183","decisionDate":"2024-06-27","decisionYear":2024,"opinionType":"alj","claimantName":"Kenyardis Foreman","employerName":null,"title":"FOREMAN VS. AMAZON.COM SERVICES, LLCAWCC# H306183June 27, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FOREMAN_KENYARDIS_H306183_20240627.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FOREMAN_KENYARDIS_H306183_20240627.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H306183 \n \n \nKENYARDIS D. FOREMAN, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nAMAZON.COM SERVICES, LLC,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nAMERICAN ZURICH INSURANCE COMPANY, \nINSURANCE CARRIER                                                                                        RESPONDENT  \n          \nSEDGWICK CLAIMS MANAGEMENT SERVICES, INC.,  \nTHIRD PARTY ADMINISTRATOR                                                                    RESPONDENT                  \n \nOPINION FILED JUNE 27, 2024   \n \nA hearing was held before Administrative Law Judge Chandra L. Black, in Pulaski County, Little \nRock, Arkansas. \n \nThe Claimant, pro se, did not appear at the hearing.        \n \nRespondents represented  by the  Honorable David  C.  Jones, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on June 12, 2024 , in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702(d), and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \nThe record consists of the transcript of the June 12, 2024, hearing and the documents held \ntherein.  Explicitly, Commission’s Exhibit 1 includes six  (6) total pages  of  correspondence  and \n\nFOREMAN-H306183 \n \n2 \n \nreturned  mail  from  the  United  States  Postal  Service;  and Respondents’ Exhibit 1 consisting of \nforty-one   (41)   numbered pages of pleadings,   correspondence,   unexecuted   authorizations, \ndiscovery requests, and various other forms related to this claim. \n                                                                 Procedural History \n On September 22, 2023, the Claimant’s former attorney filed with the Commission a claim \nfor Arkansas workers’ compensation benefits on behalf of the Claimant via a Form AR-C.  Per \nthis document, the Claimant alleged that he sustained an injury to his back during the course and \nin the scope of his employment with the respondent-employer, November 7, 2022.   \n  The respondent-insurance-carrier filed a Form AR-2, with the Commission on September \n29, 2023, wherein they accepted compensability of the claim.  However, the Respondents accepted \nthis claim for a compensable “medical only” back injury.   \n On October 6, 2023, the Respondents’ attorney wrote a letter to the Commission saying \nthat they had accepted the claim for a compensable back injury and paid all appropriate benefits.  \nCounsel for the Respondents also said that the Claimant sustained a compensable back injury to \nhis  back  on October  5,  2022,  instead  of November  7 as shown on  the  Form  AR-C,  filed  by  his \nformer attorney.        \n The Claimant’s attorney obtained a Change of Physician Order from the Commission on \nOctober 17, 2023, for the Claimant to start treating Dr. Ali Raja.   \nSince the filing of the Form AR-C on September 22, 2023, there has been no action on the \npart of the Claimant to prosecute this claim by way of a bona fide request for a hearing.  \nOn November 30, 2023, the Claimant’s attorney filed with the Commission a motion to \nwithdraw from representing the Claimant in this matter.  There being no objection to the motion \n\nFOREMAN-H306183 \n \n3 \n \nfor the Claimant’s attorney to withdraw as counsel of record, the Full Commission entered an \nOrder on December 19, 2023, granting the motion.      \nStill, there was no action on the part of the Claimant to prosecute this claim by way of a \nbona fide request for a hearing or in any other manner. \nConversely, the Claimant did not attend his appointment with Dr. Ali Raja.  Therefore, on \nMarch 1, 2024, the Commission entered an Order to Set Aside the Change of Physician. \nNo request for a hearing was requested by the Claimant.   \nTherefore,  on or  about April  4,  2024, the  Respondents filed a Respondents’ Motion  to \nDismiss Without Prejudice, which  was  accompanied  by a Respondents’ Brief in  Support of \nRespondents’ Motion to Dismiss Without Prejudice, with the Commission, along with a Certificate \nof Service to the Claimant.        \n The Commission sent a letter to the Claimant on April 9, 2024, informing Claimant of the \nRespondents’ motion, and a deadline of twenty (20) days, for filing a written response.  Said letter \nwas mailed to the Claimant by both first-class and certified mail.  Tracking information received \nby the Commission from the Postal Service shows that they were unable to deliver this parcel of \nmail to the Claimant.  The letter sent by first-class mail has not been returned to the Commission.   \n As of late, there has not been any type of reply from the Claimant.  \n Pursuant to a Hearing Notice dated May 1, 2024, the Commission notified the parties that \nthe matter had been set for a hearing on the Respondents’ motion to dismiss.  Said hearing was \nscheduled  for June 12, 2024, at the Arkansas Workers’ Compensation Commission located  in \nLittle Rock, Arkansas. \n\nFOREMAN-H306183 \n \n4 \n \nSaid letter was mailed to the Claimant by both first-class and certified mail.  Information received \nfrom the Postal Service shows that they were unable to deliver the letter to the Claimant.  The letter \nsent by first-class mail has not been returned to the Commission.   \nThe  hearing  was  held  as  scheduled.    The  Claimant did  not appear at the  hearing.   The \nRespondents’ counsel argued that  the Claimant  has  failed  to  prosecute  his claim for workers’ \ncompensation benefits.  He further noted that the Claimant has not taken any affirmative action to \nprosecute his claim in over six (6) months.  More specifically, counsel noted that the Claimant has \nnot  taken  any  action  to advance  his claim since  the  filing  of  the  Form  AR-C, which  was  done \nalmost  nine (9) months ago.   Therefore, the Respondents’ attorney moved  that this claim be \ndismissed pursuant  to Ark. Code  Ann. §11-9-702, and/or Commission Rule  099.13,  with or \nwithout prejudice.  \nAdjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable  in  the \nRespondents’ request for dismissal of this claim are outlined below:  \n Specifically, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \n\nFOREMAN-H306183 \n \n5 \n \nreopen  is  filed  with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n            A review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor additional workers’ compensation benefits, but  he has  failed  to  do  so.  Specifically,  the \nClaimant  has  not  requested  a  hearing  or  otherwise made  any  effort to  prosecute  his claim for \nworkers’ compensation benefits since the filing of the Form AR-C, over nine (9) year ago; and nor \nhas  he  resisted  the motion  for dismissal or  even  responded  to  the  notices  of  this  Commission.  \nHence,  the  evidence  preponderates  that  the  Claimant  has  failed  to  prosecute  this  claim  for \nadditional workers’ compensation benefits.  Moreover,  considering  that  the  Claimant did  not \nrespond to the notices of this Commission and did not appear at the dismissal proceedings, I am \nconvinced that the Claimant has abandoned this claim.          \nTherefore,  after  consideration  of  the  evidence before  me,  I  find that the Respondents’ \nmotion to dismiss for a lack of prosecution to be well taken.  I thus find that pursuant to Ark. Code \nAnn.§11-9-702 (d), and Commission Rule 099.13, this claim for additional workers’ compensation \nbenefits should be dismissed without prejudice to the refiling within the limitation period specified \nunder the Arkansas Workers’ Compensation Act (the “Act”). \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704. \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n\nFOREMAN-H306183 \n \n6 \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since his former attorney filed the \nForm AR-C, which was done more than nine (9) months ago.  Hence, the \nevidence preponderates that the Claimant has failed to prosecute his claim \nfor workers’ compensation benefits based upon the relevant provisions of \nthe  specified  statute,  Ark.  Code  Ann.  11-9-702,  and  Rule  099.13  of  this \nCommission.       \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \n                                               ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for additional workers’ compensation benefits.  This dismissal is pursuant \nto Ark. Code Ann. §11-9-702(d), and Commission Rule 099.13, without prejudice to the refiling  \nof this claim within the limitation period specified under the Act. \n          IT IS SO ORDERED. \n \n \n \n                              _______________________________ \n               Chandra L. Black \n               Administrative Law Judge","textLength":11316,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H306183 KENYARDIS D. FOREMAN, EMPLOYEE CLAIMANT AMAZON.COM SERVICES, LLC, EMPLOYER RESPONDENT AMERICAN ZURICH INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:53:21.875Z"},{"id":"alj-H307469-2024-06-27","awccNumber":"H307469","decisionDate":"2024-06-27","decisionYear":2024,"opinionType":"alj","claimantName":"Gregory Mckillion","employerName":null,"title":"McKILLION VS. RAZORBACK CONCRETE CO.AWCC# H307469June 27, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/McKillion_Gregory_H307469_20240627.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"McKillion_Gregory_H307469_20240627.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307469 \n \n \nGREGORY L. McKILLION, EMPLOYEE CLAIMANT \n \nRAZORBACK CONCRETE CO., INC., \n EMPLOYER  RESPONDENT \n \nXL SPECIALTY INS., \n CARRIER RESPONDENT \n \n \nOPINION FILED JUNE 27, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on June 7, 2024, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by Mr.  Eric  Newkirk,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n On June  7,  2024,  the  above-captioned  claim  was  heard  in Jonesboro, \nArkansas.  A prehearing conference took place on April 1, 2024.  The Prehearing \nOrder  entered  that  same  day  pursuant  to  the  conference  was  admitted  without \nobjection as Commission Exhibit 1.  At the hearing, the parties confirmed that the \nstipulations,  issues,  and  respective  contentions  were  properly  set  forth  in  the \norder. \nStipulations \n The  parties  discussed  the  stipulations  set  forth  in  Commission  Exhibit  1.  \nThey are the following, which I accept: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n\nMcKILLION – H307469 \n2 \n \n2. The   employee/employer/carrier   relationship   existed   among   the \nparties on November 10, 2022, and at all other relevant times. \n3. Respondents have controverted this claim in its entirety. \nIssues \n The  parties  discussed  the  issues  set forth  in  Commission  Exhibit  1.   The \nfollowing were litigated: \n1. Whether  Claimant  sustained  a  compensable  injury  in  the  form  of \nright cubital tunnel syndrome. \n2. Whether Claimant is entitled to reasonable and necessary medical \ntreatment. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant contends  that  he suffered a  compensable injury  in  the \nform  of  right  cubital  tunnel  syndrome,  and  that  he  is  entitled  to \nreasonable   and   necessary   treatment   of   it   at   the   expense   of \nRespondents. \nRespondents: \n1. Respondents   contend   that Claimant   cannot   establish   a   right \ncarpal/cubital   tunnel   injury   on   or   about   November   10,   2022.  \nRespondents   have   no   knowledge   whatsoever   of   a   purported \n\nMcKILLION – H307469 \n3 \n \nincident   on   November   10,   2022,   and   assert   that   no   work \nevent/incident  occurred  on  that  date.    Furthermore,  to  the  extent \nthat  Claimant  is  alleging  a  gradual  onset  cubital  tunnel  claim \nculminating  in  such  an  injury,  Respondents  assert  that  his  job \nduties  were  neither  rapid  nor  repetitive,  and  that  the  major  cause \nelement cannot be met, either. \n2. Additionally,  Respondents  are  unaware  of any  objective  medical \nfindings  of  a  right  carpal  tunnel  injury.    They  further  assert  that,  to \nthe  extent  any  objective  medical  findings  do  exist  establishing \neither  a  right  carpal  or  right  cubital  tunnel  injury,  that  any  such \nfindings  are  traceable  to  pre-existing  abnormalities  and are not  in \nany   way   work-related   or   causally   connected   to   the   work \nenvironment sufficient to meet the major cause requirements. \n3. By  way  of  additional  affirmative  defense,  Respondents  assert  that \nthere was no notice of a purported work injury involving the alleged \nright  carpal  tunnel/cubital  tunnel  injury  until  October  30,  2023.  \nThus,  no  benefits  would  be  owed  prior  to  Respondents receiving \nnotice of an alleged incident/event on October 30, 2023. \n4. By  way  of  further  contention,  Respondents  plead  an  offset  for  any \ngroup medical insurance or group short-term disability benefits paid \nto  Claimant  or  on  his  behalf.    They  also  assert  an  offset  for  any \n\nMcKILLION – H307469 \n4 \n \nunemployment  benefits  paid  to  him,  to  the  extent  allowed  under \nArkansas law. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including   medical   reports, \ndocuments,  and other matters  properly before  the  Commission,  and  having  had \nan  opportunity  to  hear  the  testimony  of  the  claimant  and  to  observe  his \ndemeanor, I hereby make the following findings of fact and conclusions of law in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  stipulations  set  forth  above  are  reasonable  and  are  hereby \naccepted. \n3. Because  the  evidentiary  portion  of  the  hearing  was  not  completed \n(due  to  Claimant’s  expressed  unwillingness  to  continue  with  the \nhearing  while he  was still  on  the  witness  stand),  the  merits  of  the \nsubstantive issues cannot be reached. \n4. Respondents have proven by a preponderance of the evidence that \nthe claim should be dismissed pursuant to AWCC R. 099.13 due to \nClaimant’s expressed  unwillingness  to  continue  with  the  hearing \nwhile  still  on  the  witness  stand,  which  prevented  the  hearing  from \nbeing completed. \n5. This claim is hereby dismissed without prejudice. \n\nMcKILLION – H307469 \n5 \n \n6. Because of the above findings/conclusions, the remaining issues—\nwhether Claimant  sustained a compensable  injury  in  the  form  of \nright   cubital   tunnel   syndrome, and   whether he is   entitled   to \nreasonable  and  necessary  treatment  of this alleged  injury—are \nmoot and will not be addressed. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness.  Respondents announced at the outset of \nthe  hearing  that  they  were  calling  two  witnesses—Misty  Hammock  and  Greg \nVaught—but  because  the  hearing  was  ended  while  Claimant  was  still  on  the \nwitness stand, these individuals were prevented from testifying. \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into \nevidence in this case were the following:  Claimant’s Exhibit 1, a compilation of \nhis medical  records,  consisting of 29 pages; and Claimant’s Exhibit 2, non-\nmedical records, consisting of 13 pages. \nAdjudication \nA. Motion to Dismiss \n During the hearing, Claimant took the witness stand.  Because he had no \nattorney  to  question  him on  direct  examination,  I  conducted  this  portion  of  his \nexamination, asking  questions  that  were  geared  toward  helping  me  to  make \nfindings of fact and conclusions of law on the above-stated issues.  This was in \nkeeping  with  Ark.  Code  Ann. §  11-9-705(a)(1)  (Repl.  2012),  which  provides in \n\nMcKILLION – H307469 \n6 \n \npertinent part that the “Commission . . . may make such investigation or inquiry, \nor  conduct  the  hearing,  in  a  manner  as  will  best  ascertain  the  rights  of  the \nparties.”  Claimant  gave  extensive  testimony  about  the  parts  of  his  job  that  he \ncontended  involved  rapid,  repetitive  motion—and  caused  his  alleged  cubital \ntunnel syndrome.  After he had been on the witness stand for an extended period \nof time, I elected to take a recess in order to conduct a joint petition hearing on \nanother claim, and to give my court reporter a break.  I advised the parties that, \nto  make  better  use  of  the  time  allotted,  I  would  consider  allowing  Claimant \n(subject to objection by Respondents) to testify in a more narrative fashion. \n However, when I got back on the record, the following colloquy took place: \nJUDGE FINE:  Now I want the record to reflect this.  I’m going to—I \nwant  to  advise  you,  Mr.  McKillion,  you’re  still  under  oath  as  a \nwitness.  I need to delve into this.  I don’t want to close the record \nwithout  inquiring  into  this.    I  need  to  make  a  record  on  this.    You \ntold me when we were visiting here in the room when I got back on \nthe bench that—and forgive me, I don’t want to—I can’t quote you \nexactly—but that you didn’t want to pursue this matter any further.  \nWas that—was I correct on that? \n \nCLAIMANT:  Yes, sir.  Yes, sir. \n \nJUDGE FINE:  Okay.  Why is that, why are you no longer pursuing \nthis? \n \nCLAIMANT:  I don’t—I don’t—I just don’t feel like going no more, \nyou know what I mean?  I mean, hell, I can—I was just trying to see \ncould I get workmen’s [sic] comp basically to pay for my surgery.  \nAnd  right  now,  this  is  going  so  long,  I  don’t  feel  like  wasting \nnobody’s time.  I’m just saying—I’m just being honest with you. \n \nJUDGE FINE:  Well, I want to be sure you understand, then. \n \nCLAIMANT:  Yeah, I—I understand exactly what I’m saying— \n\nMcKILLION – H307469 \n7 \n \n \nJUDGE FINE:  Okay. \n \nCLAIMANT:  —and I understand what you [sic].  I’m done. \n \nJUDGE FINE:  All right.  I need you to sit there for a second.  I will \nneed  to  make  a  record  on  this,  okay?    I  want  to  be  sure  you \nunderstand this is your day in court. \n \nCLAIMANT:  Yes. \n \nJUDGE FINE:  Now I will tell you, I made a reference to the parties \nand I don’t recall right at the moment whether it was on or off the \nrecord.    I  know Mr.  Newkirk  advised  me  that  he  thought  this \n[hearing]  would  take  hours  and hours,  and  I did  advise  the  parties \nthat  I  did  not  schedule  this  for  hours  and  hours  and  hours,  I  had \nscheduled it for two-and-a-half hours, and it wasn’t my intent[ion] to \nstay  here  all  day,  and  I  will  still  tell  the  both  of  your  that  is [the \ncase].  Is that statement the reason why you’re doing this? \n \nCLAIMANT:  I’m just done, Your Honor.  That’s all I can tell you. \n \nJUDGE FINE:  Okay. \n \nCLAIMANT:  I’m withdrawing my case. \n \nJUDGE FINE:  All right.  I need you to understand something.  This \nis  your  day  in  court.    If  you  do  this,  and  the  record  is  reflecting \nyou’re saying you’re done, are you will[ing] to end the hearing now? \n \nCLAIMANT:  Yes, sir. \n \nJUDGE  FINE:    All  right.    Now,  if  you  end  the  hearing  now,  Mr. \nNewkirk is being deprived of the opportunity to cross-examine you.  \nDo you understand that?  I’m not even done. \n \nCLAIMANT:  Yes, sir. \n \nJUDGE FINE:  You understand that? \n \nCLAIMANT:  I understand. \n \n\nMcKILLION – H307469 \n8 \n \nJUDGE  FINE:    He  has  witnesses  that  he  wants  to  call.    You \nunderstand if we end the hearing, they don’t get to get called.  Do \nyou understand that? \n \nCLAIMANT:  That’s correct. \n \nJUDGE  FINE:    You  understand,  at  least  from  my  under—what  I \nbelieve  Mr.  Newkirk  is  saying  based  upon  my  conversation  off  the \nrecord—and  I’ll  ask  him  to  confirm—that  if  we  do  this  and  I  go \nahead  and  end  the  hearing  at  your  insistence,  he  is  orally  moving \nfor a dismissal of your claim.  We have a provision on this.  It’s \nCommission Rule 13 that says a claim can be dismissed for want of \nprosecution.    You  understand  that  I  will  very  seriously  consider \ndismissing this if we do this.  Do you understand that? \n \nCLAIMANT:  Yes, I understand. \n \n. . . \n \nJUDGE FINE:  All right.  I will tell the both of you, I want to take a \nlook at the law on this before I rule.  I see no reason that I wouldn’t \ndismiss it based upon what’s happened, based upon the fact that \nthe—is  it  a  fair  statement—and I’m not trying to put words in your \nmouth, Mr. McKillion—are you unwilling to proceed further with this \ntoday? \n \nCLAIMANT:  Yes.  I’m willing—unwilling—I’m willing to—I’m ready \nto go.  I ready to get this over with. \n \nJUDGE  FINE:    All  right.    I’m  going  to  ask  you  one  more  time, \nthough.  Are you unwilling to continue with the hearing today? \n \nCLAIMANT:  Yes, I’m unwilling. \n \nJUDGE FINE:  You’re unwilling.  That’s the word that I need to \nhear, whether it was yes or no. \n \nCLAIMANT:  Yes, yes. \n \nJUDGE FINE:  You’re unwilling.  All right.  Well, what I will do is I’m \ngoing to close the record.  Based upon this, I will tell the parties that \nI will—I will look at this and issue a ruling.  There’s still going to be \na  transcript  prepared  from  today’s  proceedings  with  all  the \n\nMcKILLION – H307469 \n9 \n \nevidence—everything is going to come in—and I will take a second \nlook  at  the  circumstances  on  this  and  decide  how  I’m  going  to \nproceed on this, okay . . . [a]nd with that, I will tell you that I will do \nmy best to expedite a ruling on this based upon what’s arisen. \n \n Arkansas  Code  Annotated § 11-9-705(a)(1) (Repl.  2012), alluded  to \nearlier, provides as follows: \nIn  making  an  investigation  or  inquiry  or  conducting  a  hearing,  the \nWorkers’  Compensation  Commission  shall  not  be  bound  by \ntechnical  or  statutory  rules  of  evidence  or  by  technical  or  statutory \nrules  of  procedure,  except  as  provided  by  this  chapter,  but  may \nmake  such  investigation  or  inquiry,  or  conduct  the  hearing,  in  a \nmanner that will best ascertain the rights of the parties. \n \n Notwithstanding its not being bound by the rules of evidence or procedure, \nthe  Commission must conduct hearings in a manner that promotes “fairness” to \nthe parties.  See Sapp v. Tyson Foods, 2010 Ark. 517, 2010 Ark. App. LEXIS 549.  \nI find that to rule on the merits of this claim based on the incomplete evidentiary \nrecord—lacking  the  complete  testimony  of  Claimant  and  the  testimonies  of \nRespondents’ two witnesses completely—would  unfairly  surprise  and  prejudice \nRespondents. \n Respondents, based on Claimant’s stated unwillingness to continue with \nthe  hearing,  moved  for  a  dismissal  of  his  claim  under AWCC  R.  099.13,  which \nreads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \n\nMcKILLION – H307469 \n10 \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaims—by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As demonstrated by the foregoing, Claimant without good cause declined \nto litigate the merits of his claim any further after recess of the hearing.  Not only \nwas  his case-in-chief  left incomplete,  but  Respondents  were  left  unable  to \nconduct their  cross-examination of  him  and  call  their  own  witnesses.   The \nevidence  thus establishes  that  Claimant  has  failed  to  prosecute  his claim,  and \nthat reasonable notice of the proceeding was provided to him.  Hence, dismissal \nof  the  instant  claim  is readily justified  under  Rule  13.  Respondents  have  met \ntheir burden of proof on this matter. \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \n\nMcKILLION – H307469 \n11 \n \nRespondents at  the  hearing  asked  for  a  dismissal  with  prejudice,  and  Claimant \nconcurred.   But  based  on  the  foregoing, I find  that  the  dismissal  of  this  claim \nshould be and hereby is entered without prejudice.\n1\n \nB. Remaining Issues \n Because   of   the foregoing,   the   remaining   issues—whether Claimant \nsustained a compensable injury in the form of right cubital tunnel syndrome, and \nwhether  he  is  entitled  to  reasonable  and  necessary  treatment  of  this  alleged \ninjury—are moot and will not be addressed. \nIV.  CONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":16547,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H307469 GREGORY L. McKILLION, EMPLOYEE CLAIMANT RAZORBACK CONCRETE CO., INC., EMPLOYER RESPONDENT XL SPECIALTY INS., CARRIER RESPONDENT OPINION FILED JUNE 27, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on June 7, 2024, in Jonesboro, ...","outcome":"dismissed","outcomeKeywords":["dismissed:4"],"injuryKeywords":["repetitive","back"],"fetchedAt":"2026-05-19T22:53:23.953Z"},{"id":"full_commission-H200157-2024-06-26","awccNumber":"H200157","decisionDate":"2024-06-26","decisionYear":2024,"opinionType":"full_commission","claimantName":"Lindsey Crane","employerName":"Hobby Lobby Stores Inc","title":"CRANE VS. HOBBY LOBBY STORES INC. AWCC# H200157 JUNE 26, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Crane_Lindsey_H200157_20240626.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Crane_Lindsey_H200157_20240626.pdf","fullText":"1 \n \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nFILE NO. H200157 \nLINDSEY M. CRANE, EMPLOYEE        CLAIMANT \nHOBBY LOBBY STORES INC., EMPLOYER          RESPONDENT \nINDEMNITY INSURANCE COMPANY \nOF NORTH AMERICA, CARRIER            RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT  \nSERVICES, INC., TPA                     RESPONDENT \n \nORDER FILED JUNE 26, 2024 \nUpon  review  before  the  FULL  COMMISSION  in  Little  Rock,  Pulaski  County, \nArkansas.  \n \nClaimant was represented by the HONORABLE EDDIE H. WALKER, Attorney at \nLaw, Fort Smith, Arkansas.  \n \nRespondents represented by the HONORABLE KEVIN J. STATEN, Attorney at Law, \nLittle Rock, Arkansas.  \nORDER \n  This matter comes before the Full Commission on the Respondents’ \nMOTION TO SUBSTITUTE RESPONDENTS’ COUNSEL AND INCORPORATED \nBRIEF BY REFERENCE.  The Full Commission grants the motion. \n  An Administrative Law Judge (hereinafter referred to as “ALJ”) filed an \nopinion on September 8, 2023.  The ALJ found, among other things, that the \nClaimant proved she was entitled to temporary total disability benefits and \nadditional medical treatment.  The ALJ found that the Respondents failed to prove \nan Independent Medical Evaluation was reasonably necessary.  The Respondents \nappealed the ALJ’s opinion and the Claimant cross-appealed.   \n\n2 \n \n  In an opinion filed February 27, 2024, the Full Commission affirmed and \nadopted the ALJ’s  September 8, 2023 decision.  There has been no appeal of the \nFull Commission’s opinion filed February 27, 2024, and therefore the opinion is \nnow final.  Ark. Code Ann. §11-9-711(b)(1)(Supp. 2023).   \n  The Respondents have moved to substitute Newkirk and Jones Law \nFirm, PLLC as counsel for the Respondents.  The Claimant has not filed an \nobjection, and the Full Commission grants the motion. \n IT IS SO ORDERED.   \n \n \n \n \n \n \n \n_______________________________\n \n  \n \nSCOTTY DALE DOUTHIT, Chairman\n \n           \n \n \n_\n______________________________\n \n   \nM. SCOTT WILLHITE, Commissioner\n  \n \n \n                       \n__________________________\n_____\n \n \n  \n  \nMICHAEL R. MAYTON, Commissioner","textLength":2113,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION FILE NO. H200157 LINDSEY M. CRANE, EMPLOYEE CLAIMANT HOBBY LOBBY STORES INC., EMPLOYER RESPONDENT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, CARRIER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., TPA RESPONDENT ORDER FILED JUNE 26, 2024 Upon review before...","outcome":"affirmed","outcomeKeywords":["affirmed:1","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.402Z"},{"id":"alj-H301338-2024-06-26","awccNumber":"H301338","decisionDate":"2024-06-26","decisionYear":2024,"opinionType":"alj","claimantName":"Tyshaun Ramos","employerName":null,"title":"RAMOS VS. FOURJAY, LLC, d/b/a WENDY’SAWCC# H301338June 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/RAMOS_TYSHAUN_H301338_20240626.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RAMOS_TYSHAUN_H301338_20240626.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.:H301338 \n \n \nTYSHAUN RAMOS,  \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nFOURJAY, LLC, d/b/a WENDY’S, \nEMPLOYER                                                                                                            RESPONDENT              \n                                                                                  \nPHOENIX INSURANCE COMPANY,                \nINSURANCE CARRIER                                                                                        RESPONDENT                                               \n \nTRAVELERS INDEMINTY COMPANY, \nTHIRD PARTY ADMINSTRATOR                                                                      RESPONDENT  \n                                                                     \n \n \nOPINION FILED JUNE 25, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nClaimant, pro se/unrepresented, failed to appear at the hearing.      \n \nRespondents represented by the Honorable Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n On April 10, 2024, a hearing was held on the Respondents’ motion to dismiss for a lack of \nprosecution, in this alleged claim for Arkansas workers’ compensation benefits pursuant to Dillard \nv.  Benton County Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004).    Here, the  sole \nissue for determination is whether this claim should be dismissed due to the Claimant’s failure to \ntimely prosecute it  under the  provisions  of Ark.  Code  Ann. §11-9-702 (Repl.  2012),  and/or \nArkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.   \n\nRAMOS – H301338 \n \n2 \n \nThe record consists of the transcript of the April 10, 2024, hearing and the documents held \ntherein.   Specifically,  Commission’s  Exhibit  1 contains a  total  of  six (6) pages;  and  the \nRespondents’ Hearing Documents Exhibit which consist of six (6) totaled pages was marked as \nRespondents’ Exhibit No. 1. \nNo testimony was taken at the hearing. \n        Procedural History \n The Claimant has asserted that he sustained a work-related injury in the course and scope \nof his employment with the respondent-employer on February 22, 2023, for which he is entitled to \nArkansas workers’ compensation benefits.    \n On May 31, 2023, the Claimant’s former attorney filed an Entry of Appearance with the \nCommission  stating  that  she  had  been  retained by  the  Claimant to  represent him in  the  above-\nreferenced claim.  However, on November 8, 2023, the Claimant’s attorney of record in this claim \nnotified the Commission that she no longer represented the Claimant in this matter.  \nSince this time, the Claimant has failed to make a request for a hearing and not taken any \naffirmative  action  to  pursue  his alleged claim for workers’ compensation benefits.  The  record \ndoes not show that the Respondents ever paid any benefits on this alleged claim.  Therefore, this \nis an alleged claim for initial benefits.  \nThe Respondents’ attorney filed  a letter motion  to dismiss with  the Commission per \ncorrespondence dated January 2, 2024.  It appears that the Respondents served this pleading upon \nthe Claimant by depositing a copy of it in the mail with the United States Postal Service.   \nOn February 13, 2024, the Commission sent a letter to the Claimant letting him know again \nabout the motion for dismissal of his claim for workers’ compensation   Said letter notice was sent \nto the Claimant by way of first-class and certified mail via the Postal Service.  Per this letter, the \n\nRAMOS – H301338 \n \n3 \n \nClaimant was given a deadline of twenty (20) days for filing a written response/objection with the \nCommission. \nIn that regard, on March 6, 2024, the Postal Service returned to the Commission the letter \nnotice sent to Claimant via certified mail.  This correspondence was marked: “Return to Sender – \nUnclaimed – Unable to Forward.”  However, the letter sent via first-class  mail  has  not  been \nreturned to the Commission. \nYet, there was no response from the Claimant whatsoever regarding the motion to dismiss \nhis alleged work-related injury.  \nOn April 10, 2024, the Commission notified the parties pursuant to an Amended Notice of \nHearing\n1\n dated March 6, 2024, that this claim had  been placed  on  the  docket for a dismissal \nhearing.   Said  hearing  was scheduled to  be  heard on  April  10,  2024, at  the Arkansas Workers’ \nCompensation Commission, in Little Rock, Arkansas. \nThis hearing notice was sent to the Claimant via first-class and certified mail via the Postal \nService.    The notice mailed to  Claimant  via  certified  mail  was  returned  to  the  Commission on \nMarch 28, 2024, marked: “Return to Sender – Unclaimed – Unable to Forward.”  However, the \nhearing notice sent via first-class mail has not been returned to the Commission.  Therefore, the \nevidence before me preponderates that the Claimant received notice of the dismissal hearing.   \nYet once again, the Claimant did not respond or object to his alleged claim being dismissed.   \nNevertheless,  a hearing  was conducted on  the  Respondents’ motion  to dismiss as \nscheduled.  However, the Claimant failed to appear at the dismissal hearing to object to his alleged \nclaim for workers’ compensation benefits being dismissed.   The  Respondents  appeared  for  the \ndismissal hearing through their attorney.  Counsel for the Respondents argued, among other things, \n \n1\n It appears that the Hearing Notice was designated as an “Amended” Hearing Notice due to a \nclerical error.   \n\nRAMOS – H301338 \n \n4 \n \nthat the Claimant has done nothing to pursue his claim for benefits.  He specifically stated that the \nClaimant has not ever requested a hearing or responded to the motion for dismissal in any manner.  \nTherefore, the Respondents’ attorney essentially moved that this claim be dismissed due to a lack \nof prosecution under Ark. Code Ann. §11-9-702, and Commission Rule 099.13. \n         Adjudication \nIn  the  present  matter, the  record proves that  this  is  an  alleged claim for initial workers’ \ncompensation  benefits.   Typically,  a  Form  AR-C is  the recognized means for filing a “formal \nclaim.”  However, no Form AR-C has ever been filed in this matter.   It is well established under \nworkers’  compensation  law that  other  means  exist  to  file  a  claim  for Arkansas  workers’ \ncompensation benefits other than a Form AR-C.  On the contrary, I am unable to find any such \ndocument of record that would constitute the filing of a claim for initial workers’ compensation \nbenefits.   \nBecause no claim has ever been filed by the Claimant, I am compelled to find that there is \nno claim subject to dismissal pursuant to the Respondents’ motion to dismiss.  Therefore, under \nthese circumstances, the Respondents’ motion is hereby respectfully denied and dismissed in its \nentirety. \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Claimant has alleged  that  he  sustained  a  work-related  injury  on \nFebruary  22, 2023, while  performing  his  employment  duties  for  the \nrespondent-employer.  This would be considered a claim for initial benefits \nsince   there   is   no   documentation   of record   demonstrating   that the \n\nRAMOS – H301338 \n \n5 \n \nRespondents  paid  any  benefits  to, or  on  behalf of, the  Claimant  in  this \nmatter. \n \n3. The Claimant never filed a Form AR-C or requested a hearing in connection \nwith his alleged work-related claim.  Nor is there any document of record \nfiled by the Claimant or his former attorney that suffices as the filing of an \ninitial claim for benefits. \n \n4. The Respondents filed with the Commission a motion for dismissal of this \nclaim due to a lack of prosecution, for which a hearing was held.    \n \n5. Appropriate Notice of the dismissal hearing was duly served on all parties \nat their last known address, in the manner prescribed by law.    \n \n6. Because no claim exists to be subject to dismissal, the Respondents’ motion \nto dismiss is respectfully denied and dismissed in its entirety.   \n \n                                                                    ORDER \n Based upon the foregoing findings of fact and conclusions of law, I have no alternative but \nto respectfully deny the  Respondents’  motion  to  dismiss  because  no  claim  for  workers’ \ncompensation benefits was ever filed by the Claimant to be subject to dismissal. \nIT IS SO ORDERED. \n                           \n   \n                                                                      ________________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":9366,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.:H301338 TYSHAUN RAMOS, EMPLOYEE CLAIMANT FOURJAY, LLC, d/b/a WENDY’S, EMPLOYER RESPONDENT PHOENIX INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT TRAVELERS INDEMINTY COMPANY, THIRD PARTY ADMINSTRATOR RESPONDENT OPINION FILED JUNE 25, 2024 Hearing held befor...","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:53:15.646Z"},{"id":"full_commission-H205900-2024-06-25","awccNumber":"H205900","decisionDate":"2024-06-25","decisionYear":2024,"opinionType":"full_commission","claimantName":"Jason Marshall","employerName":"Tyson Poultry Inc","title":"MARSHALL VS. TYSON POULTRY INC. AWCC# H205900 FEBRUARY 26, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Marshall_Jason_H205900_20240625.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Marshall_Jason_H205900_20240625.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H205900 \n \nJASON L. MARSHALL, EMPLOYEE \n \nCLAIMANT \nTYSON POULTRY, INC.,  \nSELF-INSURED EMPLOYEE \nRESPONDENT \n  \nTYNET CORPORATION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n \nOPINION FILED JUNE 25, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE JEREMY SWEARINGEN, \nAttorney at Law, Little Rock, Arkansas. \n \n \nNUNC PRO TUNC ORDER \n The Full Commission, on its own motion, finds that a clerical \nerror exists in the Order filed May 3, 2024, but dated “April May 3, 2024\" in \nthe above referenced case.  The Full Commission finds that the Opinion and \nOrder should reflect “May 3, 2024\".  The Full Commission is authorized to \ncorrect clerical errors and this is a proper case for exercise of that \nauthority.  Ark Code Ann. § 11-9-713(d)(Repl. 1996).  The Opinion and Order \ndated April May 3, 2024, is hereby modified only to reflect the proper date of \nMay 3, 2024.  In all other respects, the Opinion and Order shall remain the \nsame and shall not be otherwise affected.  \n \n\nMarshall – H205900    2  \n \n \n   IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1513,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H205900 JASON L. MARSHALL, EMPLOYEE CLAIMANT TYSON POULTRY, INC., SELF-INSURED EMPLOYEE RESPONDENT TYNET CORPORATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 25, 2024 Upon review before the FULL COMMISSION in Little Rock, Pulaski County,","outcome":"modified","outcomeKeywords":["modified:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.975Z"},{"id":"alj-H200280-2024-06-25","awccNumber":"H200280","decisionDate":"2024-06-25","decisionYear":2024,"opinionType":"alj","claimantName":"Billy Ealy","employerName":null,"title":"EALY VS. ARKANSAS STATE POLICEAWCC# H200280June 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/EALY_BILLY_H200280_20240625.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EALY_BILLY_H200280_20240625.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H200280 \n \nBILLY L. EALY, EMPLOYEE      CLAIMANT \n \nVS. \n \nARKANSAS STATE POLICE (COMPANY A), EMPLOYER  RESPONDENT \n \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER, TPA        RESPONDENT \n \n \n \nOPINION FILED JUNE 25, 2024 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 15th day of May \n2024, in Mountain Home, Arkansas. \n \nClaimant is represented by Frederick Spencer, Attorney at Law, Mountain Home, \nArkansas. \n \nRespondents are represented by Charles McLemore, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 15th day of May 2024.  At the time of the \nhearing, the parties agreed that the issues were as follows: (1)  Compensability of  \n\n2 \n \ninjuries to the right hip, groin, and lower back as the result of a specific injury and \ngradual onset;  (2) Reasonable and necessary medical treatment for the injuries; (3) \nEntitlement to past due TTD benefits; (4) Disability rating; (5) Attorney fees; (6) with all \nother issues were reserved. \nThe respondents contended the claimant did not sustain compensable injuries \nwhile employed by the Arkansas State Police.  The claimant applied for FMLA leave \nand completed the necessary FMLA paperwork and did not indicate that he had \nsustained any work-related injuries.  \nA Prehearing Order dated July 11th, 2023, provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim and an employer/employee/carrier relationship existed on or about July 1\nst\n, 2020, \nwhen the claimant contended that he sustained injuries to his right hip, groin, and lower \nback that was the result of a gradual onset.  Further, the Order provided that the \nemployer/employee/carrier relationship existed until on or about December 31, 2021, \nand that the claimant’s average weekly wage was $1112.36 with a TTD/PPD rate of \n$711.00/$533.00 respectively.  The respondents controverted the claim in its entirety.       \n The Prehearing Order and the claimant’s and respondent’s contentions are all \nset out in their respective responses to the Pre-hearing Questionnaire and made a part \nof the record without objection.  The witnesses were Sergeant Seyfried Lewis; Amie \nEaly, the wife of the claimant; Billy Ealy, the claimant; and Major Stacie Rhoads who \nwas called by the respondents.  From a review of the record as a whole, to include \nmedical reports and other matters properly before the Commission and having had an \nopportunity to observe the testimony and demeanor of the witnesses, the following \n\n3 \n \nfindings of fact and conclusions of law are made in accordance with Ark. Code Ann. 11-\n9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n2. That an employer/employee/carrier relationship existed on July 1st, 2020, and \nat all relevant times.   \n3. That the memorandums prepared by Stacie Rhoads are found to be \nadmissible.  \n4. That the claimant has failed to satisfy the required burden of proof to show \nthat he sustained a work-related injury on the specific date of July 1, 2020. \n5. The claimant has also failed to satisfy the required burden of proof to show \nthat he sustained a gradual onset injury to his right hip, groin, and lower back. \n6. That consequently, all other issues are moot. \n7. If not already paid, the respondents are ordered to pay for the cost of the \ntranscript forthwith. \nREVIEW OF TESTIMONY AND EVIDENCE \n The Pre-hearing Order along with the Pre-hearing questionnaires of the parties \nplus a letter addressed to the administrative law judge, were made part of the record \nwithout objection.  The joint exhibit of the claimant and respondent was admitted into \nthe record without objection.  The claimant submitted two exhibits that were admitted \nwithout objection.  The respondents submitted two exhibits and exhibit one which \n\n4 \n \nconsisted of medical was admitted without objection.  Respondent’s Exhibit Two, which \nconsisted of documentary evidence was admitted into evidence, with the exception of \nthe admission of the memorandums prepared by Major Stacie Rhoads, which were \nobjected to, and the matter was taken under advisement at the time of the hearing, and \nthe admissibility will be discussed below. \n Sergeant Seyfried Lewis, who retired on July 1, 2019, as the post sergeant with \nTroop A of the Highway Patrol Division of the Arkansas State Police after almost 35 \nyears, was the first witness.  Sergeant Lewis was the claimant’s supervisor and served \nas the claimant’s post sergeant, working with the claimant in Faulkner County. (Tr. 11, \n12)  He testified that in their line of duty, they carried about 60 pounds of gear, which \nincluded the leather gear, a weapon, vest, taser, and boots, which could get pretty \nheavy throughout the day.  He encouraged guys to come in and take a load off, due to \nthe fact he knew from personal experience that these items could wear you down.  In \nregard to the claimant, he worked ten years for the highway patrol division and then \nwent on to work for the Criminal Investigation Division, hereinafter referred to as the \nCID, as a polygraph examiner. (Tr. 13, 14)  Sergeant Lewis left the highway patrol in \n2019, but prior to that would see the claimant in the hallway and he did notice that he \nwalked a little different.  “Even when we were working highway patrol, I could see a \ndifference in how he was moving or how he was doing things then.”  He even \nrecommended “You might want to look into getting into CID.” (Tr. 15, 16)  He also \nmentioned that a trooper would assist motorists, such as pushing cars off of the \nroadway and sometimes lifting heavy debris out of the roadway. (Tr. 17) \n\n5 \n \n Under cross examination, Sergeant Lewis admitted the claimant never reported a \nworkers’ compensation injury to him and that he was familiar with the process of \nreporting work related injuries.  He also admitted the claimant transferred out of the \nHighway Patrol Division to CID on December 2, 2013, which would have ended the \nperiod where the claimant worked under him, but that he did see him after that.  In \nregard to the gear worn by a trooper, Sergeant Lewis testified he had actually weighed \nit. (Tr. 19 – 21) \n  The second witness called to testify was the claimant’s wife, Amie Ealy.  They \nhad been married 20 years and had gone to grade school through high school together.  \nShe saw him on a daily basis, while the claimant served as a trooper and guessed that \nthe equipment weighed 50 to 55 pounds.  She noticed the claimant was having more \ndifficulty walking and was also having difficulty moving his foot to the gas while driving.  \nHe was having more and more pain while he worked as a trooper and this continued \nwhen he transferred to CID. (Tr. 24 – 26)  He started taking over the counter medication \nsuch as ibuprofen. (Tr. 27)  They became aware the claimant had multiple sclerosis in \nMarch of 2022, after he retired in January of that year.  Even as a polygraph examiner, \nhe had to travel a lot in a car.  She also stated he had three surgeries in regard to his \nright hip. (Tr. 28, 29) \nUnder cross examination, Ms. Ealy admitted she had been married more than 20 \nyears to the claimant and had “noticed him having pains and stuff from the very \nbeginning, and he was having problems early on.”  She went on to clarify that she \nmeant since he started with the State Police, wearing that belt. (Tr. 32)  In regard to the \nmultiple sclerosis diagnosis, she noticed that it was taking him longer to get something \n\n6 \n \nout in regard to his speech prior to that date.  The last time she saw him wearing his belt \nand gear was probably prior to him going to CID.  She was asked if that had been ten \nyears ago, and she responded she was not sure. (Tr. 33, 34)  \nThe claimant was then called to testify.  He was 44 years old at the time of the \nhearing and was with the Arkansas State Police for 18 years and 4 months, with ten of \nthose years as a trooper. He then transferred to CID as a polygraph examiner.  He \nagreed with the statement as to the weight of the gun belt that Sergeant Lewis testified \nto. (Tr. 41, 42)  “With that heavy gun belt, you know, I mean the first time you put it on, I \nmean, it just bears down on your hips and your lower back.  And it’s just a struggle to \nget through the day, but I toughed it out kind of thing.” (Tr. 43)  The claimant also \ntestified that he was not having symptoms of MS prior to his retirement.  He went on to \nstate that “With this right hip, it just catches.  It just gets like locked up.  It locks up on \nme.  It just makes it tough to walk, better then that, even run.  Something that I had to \ndo a lot of times, and it just got so painful that I couldn’t do it anymore.  That’s why I had \nto retire.” (Tr. 44)  He denied asking Dr. Newbern to write a letter for him.  While working \nas an investigator with CID, he would spend a lot of time on his feet, performing search \nwarrants and looking for evidence. (Tr. 45) \nIn regard to his hip surgeries, the first one involved bone removal of two large \npieces, and after that, he received injections.  He was then referred to Dr. Newbern.  He \nfelt that the heaviest item he had to move while working were mattresses, and scooting \nrefrigerators, freezers, or couches.  In regard to the memorandums from Major Stacie \nRhoads, he thought it was the policy of the Arkansas State Police for him to sign them \nto show that he was there, and if he didn’t sign them, he was not there.  Before January \n\n7 \n \n18, 2022, he felt he had not had any conferences with Major Rhoads.  He thought she \ndid ask him about the shooting range because he had trouble getting off the ground. (Tr. \n46 - 49)  He also felt he started suffering the symptoms of multiple sclerosis several \nmonths after the total hip replacement, when he was no longer working for the Arkansas \nstate police.  The claimant had not worked anywhere since leaving the state police.  He \ndid not remember a specific injury. “It was all gradual.” (Tr. 50)  \nUnder cross examination, the claimant testified that while working for the \nhighway patrol, he would get up and put his uniform on along with his belt, and then go \nout on patrol, making traffic stops, and working accidents. (Tr. 52)  He thought he \nworked for Sergeant Lewis in Faulkner County between the years 2006 to 2008 or \n2009. (Tr. 53)  He was sure of the weight of the vest he wore. (Tr. 56)  He thought the \nbelt and gear weighed around 55 pounds. (Tr. 57)  He agreed that he left the Highway \nPatrol on December 2, 2013, to work as a polygraph operator with CID. (Tr. 59)  He also \nagreed that after December 2, 2013, he no longer wore patrolmen’s gear. (Tr. 61)  He \nprobably participated in one search warrant every two weeks. (Tr. 65)  He would go to \nthe firing range about every three months for training.  There was an incident when he \nused the butt of his rifle to get up because his right hip had really given out. (Tr. 69)  He \nalso remembered telling Dr. Bowman, his family doctor, in regard to a report dated \nOctober 16, 2019, about shoulder pain, but stated that he did not know anything about \nthe hip problems.  He remembered being taken off performing the fitness test. (Tr. 70, \n71)   \nThe following questioning then occurred: \n\n8 \n \nQ: “I’ve heard you testify that there was not a specific injury to your hip, that it's \njust a gradual event; is that correct?”   \nA: “Yes, I remember saying that, but I mean, it’s gradual onset with this hip \nbecause of the gun belt”. \nQ.  “Okay.  So, there’s not one particular day.  It’s not the gun range.  It’s not any \nother day.  It’s - -“  \nA.  “No.” \nQ.  “- - over time?” \nA.  “Yeah.  Over time.” \nQ.  “Did you ever report an injury to your hip to work?” \nA.  “No, I did not.” \nQ.  “I was not at your deposition.  Mr. Montgomery took your deposition, and you \ntold him that as well: correct? \nA.  “That’s correct.”  (Tr. 71, 72) \nThe claimant went on to testify that Dr. Newbern performed his hip replacement \nbut denied having a conversation with Dr. Newbern about his job duties or requesting \nthat Dr. Newbern write a letter on his behalf.  He admitted telling Dr. Newbern he was a \nstate trooper.  (Tr. 77) \nOn redirect, the claimant agreed that he had to push cars out of the way in the \npast and also had to do a lot of “heavy stuff” to get things out of a car.  He additionally \nhad to do a lot of sitting and spent a lot of time on his feet while working for the CID. (Tr. \n78 - 80) \n\n9 \n \nOn recross, the claimant denied being trained on the method to file a workers’ \ncompensation claim and denied ever previously filing one.  He admitted that after he left \nthe highway patrol, he went to work for CID, and that Stacey Rhoads was his \nsupervisor.  He also admitted that he had filed for a medical disability retirement, which \nhe was receiving, and he claimed a total hip replacement, but nothing else.  He had \nbeen receiving his medical disability retirement since the date of his retirement. (Tr. 83 - \n86) \nAt this point, the claimant rested, and the respondents called Major Stacie \nRhoads, who testified that she had worked for the Arkansas State Police for 26 years, \nand currently oversaw the Criminal Investigation Division, where the claimant had \nworked, and at one point was his supervisor.  She had known the claimant since 2003, \nwhen he began working for the State Police. (Tr. 89)  She had worked for the highway \npatrol division in the past for three years and consequently was familiar with the vest \nand other equipment since she had worn them.  She went on to state that they had \nrecently tested the duty belt fully adorned with all the equipment and it weighed 15 \npounds and the ballistics vest currently weighed under six, but it had changed over the \nyears. (Tr. 90, 91)  In CID, they don’t wear big duty belts.  She was not aware of the \nclaimant ever reporting a workers’ compensation claim. (Tr. 92)  She admitted her \nconcerns about the claimant’s physical well-being after she had observed him on the \nfiring range.  She did not see him suffer an accident or fall, but he did appear to have \ndifficulty walking, and she observed him having to steady himself with his rifle when he \nfinished firing, and thought he was having hand-eye coordination issues and having \ndifficulty with the magazine exchange drills.  She testified she prepared the report on \n\n10 \n \nMay 24, 2020, three days after the training incident. (Tr. 93 – 96)  In regard to a \nworkers’ compensation poster, she testified there was one in the copy room. (Tr. 97)  \nShe also testified they received the claimant’s resignation letter on November 19, 2021, \nand he retired at the end of 2021.  She prepared a memorandum based on the \nclaimant’s worker’s compensation claim he filed, and the memorandum was dated \nJanuary 18\nth\n, 2022. (Tr. 99) \n       The parties submitted as a joint exhibit the claimant’s deposition where the \nclaimant was asked about an injury that occurred sometime in 2020 and he testified, \n“Well, the thing about it is that I - - the gun belt is sitting heavy on my hips, on my right \nhip, and it just kind of got to where I couldn’t, you know, perform the job correctly, and \nit’s just sitting on my hips and that’s - - that’s the injury.  I mean it just kind of wore, wore \nme out, wore down my hip and that’s all I can think of.”  The claimant stated that the gun \nbelt and the items in it weighed “about 50 pounds.”   “It took probably three or four years \nto notice that my hip couldn’t really take it.”  He couldn’t remember when it started. (Jt. \nEx. 1, P. 18, 19)  He thought that he had transferred to CID maybe in 2014. (Jt. Ex. 1, P. \n22)  He further testified that Lieutenant Stacy Rhoads noticed he was having difficulty \non the range and that it was her idea to send him to the doctor.  Prior to his total hip by \nDr. Gordan Newbern, he had two earlier surgeries by Dr. Jimmy Tucker who attempted \nto repair his hip. (Jt. Ex. 1, P. 27, 28)  Claimant was questioned if he ever told anyone at \nthe State Police prior to his first surgery that his hip problem might be related to the job \nhe had performed over the years, and he responded “No.  I did not.”  He never returned \nto work after the first surgery in December of 2020. (Jt. Ex. 1, P. 30)  The deposition \ncontained two exhibits, with the first one being the Arkansas Form N which stated “The \n\n11 \n \nemployee stated that his right hip started giving him trouble.  The employee stated that \nhis supervisor noticed he was having trouble.”  \n The deposition also included a Report of Injury from “Company Nurse” that \nprovided that the injury occurred to the claimant’s hip at work, and that he could not \nprovide a time or what he was doing at the time of the injury.  \n Claimant submitted the deposition of Dr. David Newbern taken on May 19, 2023, \nwhich was admitted without objection.  Besides the doctor’s Curriculum Vitae, the \ndeposition contained 28 pages of medical records and a medical article.  Dr. Newbern \ntestified that he worked as an orthopedic surgeon, mainly working with hip and knee \nreplacements.   The claimant was first treated by Dr. Jimmy Tucker, and it appeared he \nwas initially seen by Dr. Newbern on June 18\nth\n, 2021, after the two surgeries by Dr. \nTucker.  It was apparent the claimant had a fragment of extra bone that had grown in \nthe front portion of his hip called a heterotopic bone and it was thought that this was \npossibly the source of his pain and Dr. Tucker requested that he evaluate the claimant.  \nAt the time, it appeared that the extra bone could easily be pinching and hitting the \nanterior aspect of his hip joint causing the source of pain, and there was some \ndiscussion of performing an arthroscopic procedure to remove the bone, but after the \ndiscussion, it was decided that maybe the quickest way to get the most amount of \nimprovement would be the route of a hip replacement.  “Since he had shown a tendency \nto form extra or heterotopic bone around his hip, we arranged to have a pretreatment \nwith a low dose radiation treatment to prevent that from happening again.” (Cl. Ex. 1, P. \n8, 9)  “Many times muscle or traumatized tissue will undergo a transformation instead of \nthe staying in the tissue form that it is previously.” (Cl. Ex. 1, P. 10)  The surgery was \n\n12 \n \nperformed on August 9, 2021, and it was determined at the time of the surgery that \nthere was some arthritis in the joint. (Cl. Ex. 1, P. 12, 13)) \n The claimant returned for follow ups and on the October 7, 2021, visit, it was \nnoted that he had a quite abnormal gait.  He was able to stand but only with a very great \neffort.  His leg was shaking and trembling, with profound weakness and difficulty \nambulating noted. (Cl. Ex. 1, P. 16)  An encounter with the claimant also occurred on \nNovember 18\nth\n, 2021.  That report provided that the claimant’s range of internal rotation \nwas zero degrees, with his external rotation being 50 degrees.  His gait was unstable \nwith trembling and weakness, and he ambulated with a cane.  Consequently, a MRI was \nordered and an EMG nerve conduction study by Dr. Kimay was obtained.  The EMG \nwas ordered due to the fact we did not have an understanding or explanation for the \nclaimant’s neurological function.  The EMG by Dr. Kimay showed an abnormal cord \nsignal at the C2/3 disc.  A follow up MRI of the brain and cervical spine was then \nrecommended.  There was suspicion of a demyelinating disease.  The MRI of the \nlumbar spine was performed, and it was remarkable for moderate foraminal stenosis on \nthe right side of L4/5, with no other significant findings. (Cl. Ex. 1, P. 17 – 22) \n In regard to the hip surgery, Dr. Newbern, felt the claimant had recovered to a \npoint.  The claimant was still having more pain than would normally be expected and his \nrecovery from the hip replacement was not as good as normally expected. (Cl. Ex. 1, P. \n23)  Dr. Newburn initially saw the claimant on June 14\nth\n, 2021, two months prior to the \nsurgery on August 9\nth\n, 2021.  Dr. Newbern thought the patient and his wife asked him to \nwrite the “To whom it may concern” letter which is page 22 of the medical exhibit. (Cl. \nEx. 1, P. 26, 27).  He obtained the information about the claimant’s physical job from \n\n13 \n \ntalking with the claimant, who felt the belt with the equipment that he needed to carry, \npressed on his hip.  “I said that, you know, at least more than 50 percent of these stress \nand strains of work had compounded his current disability.”  Dr. Newbern agreed that \nthe information for his “To whom it may concern” letter was provided by the claimant \nand his wife. (Cl. Ex. 1, P. 28 -30)  \n Under cross examination, Dr. Newbern admitted to the importance of history in \nregard to a patient. (Cl. Ex. 1, P. 33)  He opined that “I guess, to kind of dive into that, I \nthink he’s got issues with his hip, and then I think he also has issues with what I think \nthey’ve diagnosed as multiple sclerosis, and that  - -  those two different things are \ncausing trouble.  But, yeah, both of those issues are going to make it harder for him to \ndo day-in/day-out work.” (Cl. Ex. 1. P. 35) “We still don’t know why he’s having such \ntrouble, so it’s - - I think it’s complicated.” (Cl. Ex. 1, P. 36) \n Dr. Newbern was also questioned about the labral tear in regard to the initial \nsurgeries, and he opined a labral tear is a lot of times due to an overuse phenomenon, \nbut can also be from an injury, or both. (Cl. Ex. 1, P. 39, 40) \n  An operative note dated December 2, 2020, by Dr. James Tucker, provided that \nsurgery was performed on the right labrum due to a tearing of the labrum, after 12 \nweeks of conservative care. (Cl. Ex. 2, P. 1, 2)  The claimant returned to Dr. Tucker on \nApril 13, 2021, 6 weeks postop, in regard to the resection of the right hip labral tear.  X-\nrays showed a well-maintained joint space.  Physical therapy continued, and the report \nprovided the claimant would return in 6 weeks. (Cl. Ex. 2, P. 3 – 5)  The claimant again \nreturned to Dr. Tucker for an office visit on May 25, 2021, after a diagnostic arthroscopy \nand open heterotopic ossification resection of the right hip labral tear . The claimant also \n\n14 \n \nreturned to Dr. Tucker on May 26, 2021, and June 15, 2021.  The claimant was still \nhaving issues with the hip with a lot of pain, sometimes going numb throughout the day, \nwhich required him to walk with a crutch.  The report provided the claimant would be \nreferred to Dr. Newbern. (Cl. Ex. 2, P. 9 - 13) \n The claimant was then seen by Physician Assistant, Donna Barron, PA, who \nworked with Dr. Newbern, in regard to his right hip problems.  This visit was 2 weeks \npost op from a total hip replacement and removal of heterotopic bone. (Cl. Ex. 2. P. 14 – \n17)  The claimant again returned on October 7, 2021, October 20, 2021, and November \n16, 2021. The surgery of August 9, 2021, was referred to and Donna Barron was \nconcerned that the claimant was developing nerve palsy, and the claimant was asked to \nstay on his walker. \n The “To Whom it May Concern” letter, By Dr. Newbern provided it was very likely \nthat the stresses of work contributed to the claimant’s loss of ability and function, and he \nopined that he believed it was more than 50% likely that the stress and strains of his \nwork, have compounded if not caused his current disability. (Cl. Ex. 2, P. 22) \n Claimant returned for an office visit on November 18, and November 29, 2021. \nThe November 18, 2021, report provided that an MRI of the lumbar spine and a MRI of \nthe cervical spine should be obtained and that they would proceed with psoas tendon \ninjections for bursitis.  The office visit of November 29, 2021, mentioned the MRI \nreferral. (Cl. Ex. 2, P 23 – 27)  It was also noted that a letter dated September 29, 2022, \nby Dr. Erika Santos Horta, provided that multiple sclerosis affects the central nervous \nsystem and not the bones.  (Cl. Ex. 2, P. 28) \n\n15 \n \n The respondents also submitted medical records consisting of 26 pages, without \nobjection.  The initial medical report by Dr. Gary W. Bowman, dated October 16, 2019, \nprovided that the claimant was suffering acute right shoulder and hip pain that had \nstarted one to four weeks earlier.  Physical therapy was started and Voltaren was \nordered. (Resp. Ex. 1, P. 1 – 3)  The claimant returned to Dr. Bowman on August 7, \n2020, with pain in the joint of the pelvic region and thigh.  An X-ray of the hip provided \nfor degenerative changes of the right hip. (Resp. Ex. 1, P 4 – 6) \n The claimant then presented to the Conway Orthopedic and Sports Medicine \nCenter on August 12, 2020, with groin pain, but the report provided that he did not \nremember a specific injury but stated the pain had gradually increased.  The X-ray \nprovided for a possible right hip labral tear and possible right hip femoral acetabular \nimpingement. (Resp. Ex. 1, P, 7, 8)  An imaging report dated August 17, 2020, by Dr. \nMiles Ritter, provided for a small tear involving the anterior superior labrum and a small \nbony protuberance of the superior lateral femoral head neck junction was also noted. \nThe findings could represent a CAM type femoral acetabular impingement syndrome. \n(Resp. Ex. 1, P. 9, 10)  The claimant then returned to Conway Orthopedic  and Sports \nMedicine on August 19, 2020, and the imaging findings were reviewed and the claimant \nwas referred to Dr. James Tucker.  (Resp. Ex. 1, P. 11, 12) \n The claimant first presented to Dr. Tucker on September 15, 2020, and the report \nprovided there was no specific injury reported but that the claimant presented with right \nhip pain and groin pain. (Resp. Ex. 1, P. 13 – 15)  A HPI/PMH Form with Dr. Newbern \ndated June 21, 2021, provided for right hip pain. (Resp. Ex. 1, P. 16, 17)  The claimant \nthen saw Dr. Newbern on July 1, 2021, and the assessment provided arthritis as a \n\n16 \n \nconsequence of impingement and heterotopic bone formation of the right hip.  (Resp. \nEx. 1, P. 18 – 20)  A medical report from OrthoArkansas dated August 11, 2021, \nprovided that arthritis was a consequence of impingement and heterotopic bone \nformation about the right hip.  The report went on to provide that probably the quickest \nway to recovery was for a hip replacement with the removal of the overhanging bone. \n(Resp. Ex. 1, P. 21, 22)    The claimant was seen by Donna Barron, PA, who works with \nDr. Newbern.  The report provided that a psoas tendon injection was discussed, and the \nclaimant’s gait was observed as he was leaving.  He exhibited right leg fasciculations \nand shaking of the entire right leg.  No right foot slapping was noted but a profound \nweakness and abnormal gait was observed. (Resp. Ex. 1, P. 23 – 26)   \n The respondents also submitted 21 pages of documentary evidence, and an \nobjection to the admissibility of the memorandums prepared by Stacie Rhoads was \nmade by the claimant and this issue is discussed below.  On December 2, 2013, the \nclaimant transferred from the Highway Patrol Division to the Criminal Investigation \nDivision to become a Polygraph Examiner. (Resp. Ex. 2, P. 1)  Work issues were raised \nin regard to the claimant’s actions while employed. (Resp. Ex. 2, P. 2 – 4, and also P. 7, \n8))  A memorandum dated May 24, 2020, by Lt. Stacie Rhoads and addressed to Major \nMark Hollingsworth, provided that the claimant had to use his rifle to steady himself \nwhile getting out of the kneeling position, while at the firing range and that he appeared \nunsteady on his feet. (Resp. Ex. 2, P. 5, 6)  On November 19, 2021, the claimant \nsubmitted a letter for his medical retirement. (Resp. Ex. 2, P. 9) \n\n17 \n \n Claimant’s filing of the Arkansas Form AR-C provided he had sustained a \ngradual onset injury to his right hip, groin, and lower back as a result of his job duties \nand the requirement of wearing a heavy gun and equipment belt. (Resp. Ex. 2, P. 11) \nThe report made by the Company Nurse on July 1, 2020, provided that the right hip \ninjury was work related but the claimant’s actual activities at the time of the accident \nwere unknown.  The report provided that the claimant could not say what he was doing \nat the time of the injury. (Resp. Ex. 2, P. 12 - 14)  In addition, the Form PECD 1, dated \nJanuary 19, 2022, which stated that it was to be completed by the employee, provided \nthat the date of the accident was July 1, 2020, at 10:00 a.m. but the claimant was \nunaware of the location of the accident or what he was doing at the time of the accident. \n(Resp. Ex. 2, P. 17)  The AR – N form also provided that the injury to the right hip \noccurred on July 1, 2020, at 10:00 a.m., and stated that his right hip started giving him \ntrouble and that his supervisor had noticed it. (Resp. Ex. 2, P. 18, 19)  \nDISCUSSION AND ADJUDICATION OF ISSUES \nThe first issue that must be determined is the admissibility of the memorandums \nprepared by Stacie D. Rhoads dated May 24, 2020, July 30, 2019, and January 18, \n2022.  The claimant objected to the admissibility of these documents contending among \nother things that these items were not documents that were kept in the regular course of \nbusiness.  The issue was taken under advisement at the time of the hearing.  The law is \nquite clear that the Workers’ Compensation Commission has broad discretion with \nreference to admission of evidence, and its decision will not be reversed absent a \nshowing of abuse of discretion.  Brown v. Alabama Elec. Co., 60 Ark. App. 138, 959 \nS.W.2d 753 (1998).  The Commission is given a great deal of latitude in evidentiary \n\n18 \n \nmatters, specifically by A.C.A. 11-9-705(a) which provides that the Commission “shall \nnot be bound by technical or statutory rules of evidence or by technical or formal rules \nof procedure.”  Additionally, the Commission is directed to “conduct the hearing in a \nmanner as will best ascertain the right of the parties.”  See A.C.A. 11-9-705(a) and \nClark v. Johnson’s Warehouse Showroom, Inc., 2012 Ark. App. 17, 388 S.W. 3d.  The \ncourts have even gone on to provide that the Commission should be more liberal with \nthe admission of evidence, rather than stringent.  Coleman v. Pro Transp., Inc., 97 Ark. \nApp. 338, 249 s.W.3d 149 (2007).  In the present matter, Ms. Rhoads testified and was \navailable for cross examination.  Based upon the above, the memorandums are found \nto be admissible. \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving by a preponderance of the evidence that he is entitled to compensation benefits \nfor his injuries under the Arkansas Workers’ Compensation Law.  In determining \nwhether the claimant has sustained his burden of proof, the Commission shall weigh the \nevidence impartially, without giving the benefit of the doubt to either party.  Ark. Code \nAnn 11-9-704.  Wade v. Mr. Cavanaugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989).  \nFurther, the Commission has the duty to translate evidence on all issues before it into \nfindings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \nIn the present matter, the claimant presented to Dr. Bowman on October 16, \n2019, and the medical report provided the claimant suffered from pain in his right \nshoulder and hip which had started one to four weeks earlier.  The claimant again saw \nDr. Bowmen on August 7, 2020, with pain in his pelvic region.  A medical report from \n\n19 \n \nConway Orthopedic and Sports Medicine dated August 12, 2020, provided that the \nclaimant had been suffering groin pain since 2019, but that he did not remember a \nspecific injury.  A MRI dated August 17, 2020, showed a small tear of the anterior \nsuperior labrum of the right hip and a small bony protuberance along the superior lateral \nfemoral neck head.  The first report of record by Dr. Tucker on September 15, 2020, \nprovided that the claimant had suffered right hip pain for over a year but was not aware \nof a specific injury.  It must also be noted that the report from Company Nurse dated \nJanuary 13, 2022, provided that the claimant did not know what he was doing when the \naccident occurred.     \nThe claimant testified that he felt that the gun or equipment belt and the \nequipment he was required to carry pressed on his hip, and the weight of these items \nwere the cause of hip problems over time.  In his deposition, he could not remember \nwhen the hip pain began but stated, “Well, the thing about it is that I - - the gun belt is \nsetting on my hips, on my right hip, and it just got to where I couldn’t, you know, perform \nthe job correctly, and it’s just sitting on my hips, and that’s - - that’s the injury.  I mean it \njust kind of wore, wore me out, wore down my hip and that’s all I can think of.”  He went \non to testify that it probably took 3 or 4 years to notice that his hip couldn’t take it and he \ncouldn’t remember when it started.  Testimony about the actual weight of the gun or \nequipment belt and the equipment carried on it varied between 15 to 60 pounds. \nIt is also noted that testimony provided that the claimant was diagnosed with \nMultiple Sclerosis after the date of his retirement.  Dr. Horta stated in a letter that \nMultiple Sclerosis affects the Central Nervous System and not the bones.  A suspicion \nof a demyelinating disease had been previously discussed after claimant’s EMG.  \n\n20 \n \nAdditionally, it is also noted that Dr. Newbern opined in a letter addressed “To whom it \nmay concern” that “I do believe it is more than 50% that the stress and strains of his \nwork, that is the physical requirements, have compounded, if not caused, his current \ndisability” referring to the physical job and the wearing of the heavy gun and equipment \nbelt. \nThe AR- C Form provided that the claimant had sustained a gradual onset injury \nto his right hip, groin, and lower back, but the PECD – 1 Form provided that the injury \noccurred on July 1, 2020, at 10:00 a.m., and the claimant provided he was unsure of the \nlocation of its occurrence.   The AR – N Form also provided that the claimant stated his \nright hip started giving him trouble and the date was July 1, 2020.  Here, although the \nclaimant at times stated the date of the injury was July 1, 2020, the form provided that \nthe claimant did not remember the location of the injury and he testified that the injury \noccurred over time, as the result of wearing the gun and equipment belt.  The AR - C \nForm stated the claimant sustained a gradual onset injury.  Since the claimant is not \ncontending he suffered a specific injury, he is not required to prove that the injury was \nthe result of an incident that occurred at an identifiable time and place of occurrence. \nSee Mikel v. Engineered Specialty Plastics, 56 Ark. 443, 990 S.W.2d 522 (1997).   \nThe claimant claims that he suffered a gradual onset injury to his right hip, groin, \nand lower back.  A.C.A. 11-9-102(4)(A)(ii) states, in relevant part, that injuries that occur \nover a period of time and are not the result of a specific incident occurring at an \nidentifiable time and place are not compensable, unless they are caused by rapid \nrepetitive motion.  To be awarded benefits for a gradual onset injury, the claimant must \nprove several things: (1) the injury arose out of and in the course of employment; (2) the \n\n21 \n \ninjury caused internal or external physical harm to the body, which required medical \nservices or resulted in death or disability; (3) the injury was caused by rapid repetitive \nmotion; (4) the injury was the major cause of the disability or need for treatment; and (5) \nthe injury was established by objective medical findings.  A.C.A. 11-9-102 (4) (D).  Also \nsee Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W. 2d 644 (1998) and \nHapney v. Rheem Mfg. Co. 342 Ark. 11, 26 S.W.3d 777 (2000).  Arkansas courts have \nset out a two-pronged test for such cases as the matter at bar.  The claimant must \nengage in tasks that are repetitive and the repetitive motion must be rapid.  See Malone \nsupra.  Arkansas courts have further determined that as a threshold issue, the tasks \nmust be repetitive or the rapidity issue is not reached.  Certainly, even repetitive tasks \nand rapid work, taken alone, will not satisfy the definition.  Repetitive tasks must be \ncompleted rapidly.  It is also noted that a compensable injury must be established by \nmedical evidence supported by objective findings. A.C.A. 11-9-102 (4) (D).  “Objective \nfindings” are those findings which cannot come under the voluntary control of the \npatient.  A.C.A. 11-9-102 (16) (A) (i)  \nIn the present matter, there is no question that the claimant, while working as a \nhighway patrolman, carried a gun and equipment belt that weighed somewhere \nbetween 15 to nearly 60 pounds, and was employed in a job that that was both \ndangerous and strenuous at times, while protecting and serving the people of Arkansas.  \nHowever, the elements of the claimant’s work, however difficult, and his claim for an \ninjury to his right hip, groin, and back, do not meet the legal standards set forth by the \nArkansas courts for finding that the claimant suffered a gradual onset injury.  Tasks that \nare repetitive must also be completed rapidly and this did not occur in the present \n\n22 \n \nmatter before the Commission.  Further, although there is the letter from Dr. Newbern \nthat opines that the work was over 50% the cause of the claimant’s hip problems, this \nfinding is found to be based primarily upon the statements of the claimant, with no true \nspecific objective findings that the activities of wearing the gun or equipment belt led to \nthe injury of the right hip, groin, and lower back.  It is important to note that the \nclaimant’s testimony is never considered uncontroverted. Lambert v. Gerber Products \nCo.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  Consequently, there is no alternative but \nto find that the claimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable gradual onset injury. \nBased upon the available evidence in the case at bar, without giving the benefit \nof the doubt to either party, there is no alternative but to find that the claimant has failed \nto satisfy the required burden of proof to show that the claimed injury to the right hip, \ngroin, and lower back, is in fact work related and compensable under the Arkansas \nWorkers’ Compensation Act.  Consequently, all other issues are moot. If not already \npaid, the respondents are ordered to pay the cost of the transcript forthwith. \n \nIT IS SO ORDERED.   \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":38821,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H200280 BILLY L. EALY, EMPLOYEE CLAIMANT VS. ARKANSAS STATE POLICE (COMPANY A), EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER, TPA RESPONDENT OPINION FILED JUNE 25, 2024 Hearing before Administrative Law Judge, James D. Kennedy, on the 15th...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["hip","back","shoulder","knee","cervical","lumbar","neck","repetitive"],"fetchedAt":"2026-05-19T22:53:11.415Z"},{"id":"alj-H305138-2024-06-25","awccNumber":"H305138","decisionDate":"2024-06-25","decisionYear":2024,"opinionType":"alj","claimantName":"Tambria Means","employerName":null,"title":"MEANS VS. AIRGAS DRY ICEAWCC# H305138June 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Means_Tambria_H305138_20240625.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Means_Tambria_H305138_20240625.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305138 \n \nTAMBRIA MEANS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nAIRGAS DRY ICE, \nEMPLOYER                                                                                                         RESPONDENT  \n \nSTAR SPECIALTY INSURANCE CO., \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED JUNE 25, 2024 \n \nHearing conducted on Wednesday, June 20, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Tambria L. Means, pro se, of Little Rock, Arkansas, did not appear in person \nat the hearing.  \n \nThe Respondents were represented by the Honorable Rick Behring Jr., Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on June 20, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe  Claimant  worked  for  the  Respondent/Employer  as  a delivery  driver. The date  for \nClaimant’s alleged injury was on July 11, 2023. She reported her injury to Respondent/Employer \non August 15,  2023. Admitted  into  evidence  was Respondents Exhibit  1,  pleadings and \ncorrespondence, consisting of fifteen pages. I have also blue-backed a certified returned envelope \nreceived June 11, 2024, as discussed infra. \nThe  record  reflects on August 11,  2023,  a  Form AR-C  was  filed  with  the  Commission \nthrough Claimant’s then-attorney, Mark Peoples, purporting an alleged shoulder injury. This report \n\nMEANS, AWCC No. H305138 \n \n2 \n \ndoesn’t state which shoulder was injured. On August 23, 2023, a Form AR-1 was filed in this case, \nreflecting  that  Claimant  purportedly reported  to  her manager  that she  woke  up  with  pain. This \nrecord does not reflect where the pain was located. Respondents on August 23, 2023, filed a Form \nAR-2, challenging the compensability of Claimant’s alleged injury. In short, this report states that \nClaimant’s injury doesn’t meet the burden of proof for a workers’ compensation claim. Attorney \nRick  Behring entered  his  appearance  on  behalf  of  the  Respondents  on September 6,  2023. On \nNovember 28, 2023, the Claimant requested a hearing with the Commission. However, on January \n22, 2024, the Claimant, through counsel, withdrew the hearing request and the file was returned to \ngeneral  files. Attorney  Peoples filed  a  Motion  to  Withdraw  as  Counsel that  was  granted on \nFebruary 26, 2024. \nThe Respondents next filed a Motion to Dismiss on April 10, 2024, requesting this claim \nbe  dismissed  for a lack  of  prosecution. The Claimant  was  sent, certified  and  regular  U.S.  Mail, \nnotice of the Motion to Dismiss from my office on April 15, 2024, her last known address. The \ncertified notice was not claimed by Claimant. However, the notice sent regular U.S. Mail was not \nreturned to the Commission. Claimant did not respond to the notice in writing as required. Thus, \nin accordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice \nof Respondents’ Motion to Dismiss hearing date at her current address of record via the United \nStates Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and regular \nFirst-Class Mail, on May 10, 2024. The certified notice was returned to the Commission unclaimed \nbut the regular First-Class mail notices were not returned. The hearing took place on June 20, 2024. \nAs mentioned before, the Claimant did not show up to the hearing. \n \n \n\nMEANS, AWCC No. H305138 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the June 20, 2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith  proper  notice, on  the Respondents’ Motion  to Dismiss. Though  the  hearing  notice  was \nunclaimed and returned to the Commission on June 11, 2024, the same notice was also sent to the \nClaimant’s address of record by First-Class U.S. Mail on May 10, 2024, and did not return to the \nCommission. The Claimant is responsible for providing the Commission with her current address. \nThe  Commission  is  responsible  for  providing  reasonable  notice  of  a  hearing  to  the  Claimant. \nSending  a  hearing  notice  to  the  last  known  address  that  was  provided  to  it  by  the  Claimant  is \nreasonable. Thus, I find by the preponderance of the evidence that reasonable notice was given to \nboth parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  her Form  AR-C  on \nAugust 11, 2023, and requested a hearing on November 28, 2023, through her then-attorney Mark \n\nMEANS, AWCC No. H305138 \n \n4 \n \nPeoples. However, on January 22, 2024, Attorney Peoples withdrew the request for a hearing and \nthe Claim was returned to general files. Since then, Claimant has not made a demand for a hearing \nor has taken any other action in furtherance of this claim. In this regard, the Claimant has failed to \ndo the bare minimum in prosecuting her claim. Therefore, I do find by the preponderance of the \nevidence  that  Claimant  has  failed  to  prosecute  her claim  by  failing  to  request  a  hearing.  Thus, \nRespondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is denied. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6804,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305138 TAMBRIA MEANS, EMPLOYEE CLAIMANT AIRGAS DRY ICE, EMPLOYER RESPONDENT STAR SPECIALTY INSURANCE CO., CARRIER/TPA RESPONDENT OPINION FILED JUNE 25, 2024 Hearing conducted on Wednesday, June 20, 2024, before the Arkansas Workers’ Compensation Commission (...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2","denied:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:53:13.488Z"},{"id":"alj-H303954-2024-06-25","awccNumber":"H303954","decisionDate":"2024-06-25","decisionYear":2024,"opinionType":"alj","claimantName":"Myia Woods","employerName":"City Of Little Rock","title":"WOODS VS. CITY OF LITTLE ROCK AWCC# H303954 June 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WOODS_MYIA_H303954_20240625.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WOODS_MYIA_H303954_20240625.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H303954 \n \nMYIA M. WOODS, EMPLOYEE         CLAIMANT \n \nCITY OF LITTLE ROCK, EMPLOYER               RESPONDENT \n    \nCADENCE INSURANCE CO./RISK MANAGEMENT \nSERVICES, CARRIER/TPA                      RESPONDENT \n \n \n \nOPINION FILED 25 JUNE 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 27 March 2024 in Little Rock, Arkansas. \n \nMr. Gary Davis, of the Davis Law Firm, appeared for the claimant. \n \nMs. Melissa Wood, of Worley, Wood & Parrish, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 27 March 2024 in Little Rock, Arkansas, after \nthe parties participated in a prehearing telephone conference on 5 December 2023. The \nsubsequent Prehearing Order, admitted to the record without objection as Commission’s \nExhibit No 1, was entered on the same day as the conference. The Order stated the \nfollowing ISSUES TO BE LITIGATED: \n1.  Whether the claimant is entitled to Temporary Total Disability (TTD) benefits. \n2.  Controversion and applicable attorney’s fee on benefits. \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire Responses, \nwere incorporated into the Prehearing Order.  \nThe claimant CONTENDS:\n1\n \n \n1\n As listed in her prehearing filings and the Prehearing Order, the claimant originally \ncontended that she sustained compensable injuries on 22 March 2022 and that she is \n\nWOODS- H303954 \n2 \n \nThat she is entitled to TTD benefits from her last date worked, 13 July 2023, to a date \nyet to be determined. She further contends that after 10 November 2023, she began \nreceiving “salary continuation” while her long-term disability application was pending and \nthat she is entitled to the difference in her applicable TTD amount and the amount received \nin salary continuation from that date going forward. See TR at 10-11. \nThe respondents CONTEND: \nThat all appropriate benefits have been paid on the 22 March 2022 injury. The claim \nwas accepted as medical-only, and the claimant was released at maximum medical \nimprovement (MMI) with no impairment on 15 April 2022. The claimant’s authorized \nproviders are at Concentra, but she obtained unauthorized care from Dr. Viviana Suarez \nand Arkansas Spine & Pain. \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on or about 22 March 2022 when \nthe claimant sustained compensable injuries to her left knee and lower back. \n \n3.  The average weekly wage was $706.73, which entitled the claimant to weekly \ncompensation rates of $354.00 for Temporary Total Disability (TTD) and $266.00 for \nPermanent Partial Disability (PPD). \n \nThe following WITNESSES testified at the hearing: \nThe claimant testified on her own behalf; the respondents called Ms. Kayla Jo Dixon \nand Ms. Shawanda Craig. \n \nThe EVIDENCE presented consisted of the testimony along with Commission’s Exhibit \nNo 1 (the 5 December 2023 Prehearing Order), Claimant’s Exhibit No 1 (an index page and \n109 pages of medical records), Claimant’s Exhibit No 2 (an index page and additional 11 \n \nentitled to temporary total disability benefits between 12 May 2023 and 30 May 2023 and \nthen again from 30 June 2023 to a date yet to be determined. Those contentions were \namended without objection at the hearing. \n \n\nWOODS- H303954 \n3 \n \npages of medical records), Claimant’s Exhibit No 3 (an index page and 41 pages of additional \nrecords), Respondent's Exhibit No 1 (an index page and 29 pages of medical records), and \nRespondent’s Exhibit No 2 (an index page and 7 additional pages of records). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law \nunder ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The claimant failed to prove by a preponderance of the evidence that she is entitled \nto TTD benefits for any period. \n \n4. Absent an award of benefits, the claimant is not entitled to attorney’s fees. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \nClaimant Myia Woods \nThe claimant is a forty-three-year-old female who was working for the City of Little \nRock as a Recreation Programmer at the time of her stipulated compensable injuries to her \nleft knee\n2\n and lower back. According to the claimant, her job involved coordinating \ncommunity programs, like team athletics, for park facilities and doing administrative work \nin support of those programs. [TR at 19-20.] On the day she was injured, she slipped in a \nhallway and fell at the city’s West Central Community Center. She testified that she was \nfirst seen at the Baptist Hospital emergency department, was off work for a week, and then \nfollowed up through Concentra Health Centers at the direction of her employer. [TR at 21-\n22.] \n \n2\n The claimant is not seeking benefits associated with her knee injury. The unscheduled \ninjury to her back is the only injury at issue in this litigation. \n\nWOODS- H303954 \n4 \n \nAccording to her testimony, the claimant was returned to work at light duty and \neventually sought treatment from Dr. Viviana Suarez and Arkansas Spine and Pain. She \nreceived medication and some injection therapy at Arkansas Spine and Pain and \nOrthoArkansas. This later treatment was not authorized, but sought on her own. \nQ:  You’ve used your health insurance to pay for these things? \nA:  Yes. \nQ:  And, apparently, you – in your deposition you said that you were \nhaving trouble getting ahold of the insurance people, that’s why you went to \nDr. Suarez? \nA:  Yes. \nQ:  But again, thereafter, you’ve continued with Dr. Suarez and she’s \nreferred you to these various doctors, is that right? \nA:  Yes. \n \n[TR at 24.] \n The claimant was asked, “why is July the 13\nth\n of 2023 the last day you worked?” She \ntestified, “Because I had to go in and have a procedure done. I had got worse to where it \nwas – it was just getting to where I couldn’t sit or hardly walk or anything; so I had to have \nthat procedure done, and then, I was like – they had me on, like – on some strict bed-type \nrest, and then, they started me back with the therapy and I was going, like, two or three \ntimes a week.” [TR at 24-25.] She clarified that the “procedure” was an epidural injection \nand confirmed that she had not returned to work since the first injection.  \n In November of 2023, the claimant began receiving some disability benefits under a \npolicy offered through the city. She believed that she made the application for those \nbenefits after someone from the city contacted her about potential eligibility for coverage. \n[TR at 26-27.] She testified that she is still treating with Dr. Paulus at OrthoArkansas and \nthat she is attempting to get approval for another procedure through her group health \ninsurance. [TR at 28.] \n The claimant stated that she is currently prescribed pain medication, muscle \nrelaxers, and steroids, and that she takes those medications on a daily basis or as otherwise \n\nWOODS- H303954 \n5 \n \ninstructed. She denied any injuries or accidents since the workplace incident, but for one \nepisode where she was in such pain related to her injuries that she described being on the \nfloor at her home and presented to urgent care for some pain intervention. [TR at 31-32.] \nShe stated that she experiences low back pain, stiffness, and muscle spasms, with difficulty \nstaying seated for long periods of time. [TR at 34-35.] \n On cross examination, the claimant confirmed that the respondents instructed her to \npresent to Concentra “the next week” after her fall.  \n Q:  Okay. Were you working at all between that time? \n A:  No, I was at home. I was, actually, at home on bed rest. \n \n[TR at 38.] She also confirmed that she no longer experiences trouble with her knee, so far \nas it relates to this claim. Her treatment with Concentra consisted of various physical \nexaminations, exercises, hot and cold therapies, and medications; but she discontinued the \nmedications prescribed by them on her own. The claimant acknowledged that she was \nreleased on light duty from Concentra’s care by Dr. Scott Carle on 15 April 2022. She \nreturned to work and continued working with light duty restrictions until July of 2023. [TR \nat 39-41.] \n The claimant’s testimony concluded after she confirmed her signature on the Form \nAR-N dated 23 March 2022. [TR at 42; Resp. Ex. No 2.] \nRespondents’ Witness Kayla Jo Dixon \n Ms. Dixon works for the City of Little Rock and oversees, among other things, city \nemployee workers’ compensation cases. She recalled that the claimant stopped showing up \nfor work in July of 2023, which led to a conference call with other administrators to discuss \nthe claimant’s leave status. Ms. Dixon stated that she was not aware of the claimant \ncontinuing any authorized treatment at the time and that last notice she received was \nregarding the claimant’s release at MMI in April of 2022. [TR at 44-45.] \n\nWOODS- H303954 \n6 \n \n Ms. Dixon described difficulty getting in contact with the claimant to sort out which \ninjury or illness with which her absenteeism was associated, as she had more than one open \nFMLA matter. When she eventually spoke with the claimant, who relayed that her absence \nwas for surgery related to her workplace injury, Ms. Dixon explained that no treatment was \nauthorized at the time and that the claimant should report to Concentra for covered \ntreatment. She also testified that the claimant was currently receiving some salary \ncontinuation while a disability claim was pending with the city’s vendor for that coverage. \n[TR at 46-48.] \n On cross examination, Ms. Dixon stated that she was not aware of any condition the \nprevented the claimant from performing work. She further testified that she did not contact \nthe claimant to suggest or discuss her filing a claim with the city’s disability insurance \nvendor. [TR at 49-50.] The witness verified that records indicated 13 July 2023 as the \nclaimant’s last work day and that she had been receiving salary continuation since, while \nthe claim for long-term disability was pending. [TR at 51-52.] When asked why the \nrespondents would continue to pay employees (outside of the Workers’ Compensation \nstructure) for not working during a time where they were claiming to be disabled, Ms. \nDixon acknowledged that the practice could be seen as “lenient,” but that they make good \nfaith efforts to keep employees in a paid status whenever possible. [TR at 53.] \nRespondents’ Witness Shawanda Craig  \nMs. Craig testified that she is the city’s Deputy Director for Recreation Services and \nthat she has been in the respondent’s employ for twenty-five years. The claimant reported \nup to her through the chain of command, with two supervisors in between. Ms. Craig stated \nthat the claimant would have received a Form AR-N from her and verified that the record \nin evidence [Resp. Ex. No 2 at 1-2] was an accurate copy of that form. [TR at 58-60.] \nMedical Evidence \n\nWOODS- H303954 \n7 \n \n The emergency department records from immediately after the claimant’s fall \nindicate that a “fall occurred while walking. She landed on a hard floor. The point of impact \nwas the left knee. The pain is present in the left knee. The pain is mild.” Pain and \ntenderness were noted for her knee and lumbar back. The Assessment/Plan section noted \nknee sprain and lumbosacral strain and directed follow-up care if symptoms persisted. [Cl. \nEx. No 1 at 1-4.]  \nThe records from her first Concentra visit two days later (on 24 March 2022) \nsimilarly note a left knee injury and lumbar sprain. Medication and physical therapy were \nprescribed. She was returned to work that same day with the following restrictions: no \nstanding for more than half an hour, no lifting more than 20 pounds, no squatting, and no \nkneeling. [Cl. Ex. No 1 at 5-10.] Her return-to-work note also restricted running and using \nstairs without a handrail, and it allowed for her to be off for the rest of that day. It further \nprovided that she could return for re-evaluation the following day or at the next scheduled \nvisit on 28 March 2022. [Cl. Ex. No 1 at 11.] \nThe claimant returned to Concentra’s clinic on 28 March 2022 for follow up. Ongoing \nlumbar pain without radiculopathy was noted. She was returned to work that day with \nsquatting and kneeling restrictions and in the “sedentary” work class. Another appointment \nwas set for 1 April 2022. [Cl. Ex. No 1 at 12-16.] The records from that next visit reflect \nsome improvement, with a recommendation for continued physical therapy and her \nrestrictions revised to include “may push/pull up to 30 lbs up to or > 8 hrs/day.” [Cl. Ex. No 1 \nat 17-21.] Her “Functional Restoration and Status of Healing” was noted as “Roughly 50% \nof anticipated healing,” and a subsequent appointment was set for 7 April 2022. \nAt the 7 April 2022 appointment, she was noted as “much better” and her \n“Functional Restoration and Status of Healing” was “approximately 75% of the way toward \nmeeting the physical requirements of her job.” Her lumbrosacral exam noted no tenderness \n\nWOODS- H303954 \n8 \n \nand a full range of motion. Physical therapy was to continue, and she was expected to be at \nmaximum medical improvement (MMI) at her next follow-up, which was set for 15 April \n2022. [Cl. Ex. No 1 at 22-26.] \nUpon her next presentation to the Concentra clinic, the notes reflect that, “[she is] \nhere today for evaluation and release from her 22 Mar 2022 7:18 AM slip and fall injury \nwhere she injured her knee and lumbar. After nine formal sessions of PT as well as a week \nof Home PT, she is ready for release.” No tenderness and a normal range of motion were \nagain noted for her lumbrosacral exam. The claimant was prescribed seven tablets of \nCyclobenzaprine to take as needed at bedtime and 10 tablets of Meloxicam to take once \ndaily. She was noted, otherwise, as ready for release. Her return-to-work note listed: \nTreatment Status: Released from Care. \nWork Status:  The claimant can return to work with no restrictions on Apr 15, 2022. \nThe claimant has suffered no permanent impairment due to his/her work-related \ninjury. The maximum medical improvement date (end of healing period date is): Apr \n15, 2022. \n \n[Cl. Ex. No 1 at 27-31.] \n The next treatment note provided by the claimant is from her New Patient Consult \nfor low back pain at Arkansas Spine and Pain on 5 July 2022. That note reflects a report of \n“onset of pain gradually over time,” with “LBP since 1/2022.” It also states, “h/o fall at her \njob on 3/2022, case not open. Patient works full time, recreating programmer.” The \nexamination of the claimant’s cervical and thoracic spine were not remarkable, but the \n“Inspection of the lumbar spine reveals scoliosis. Lordosis Palpation of the lumbar facet \nreveals tenderness on both sides at L3-S1 region.” She was assessed with scoliosis and \ndiscogenic low back pain, prescribed naproxen and physical therapy, and set to follow-up in \none month. [Cl. Ex. No 1 at 32-37.] \n\nWOODS- H303954 \n9 \n \n The claimant followed up on 3 August 2022. She stated some significant \nimprovement with the physical therapy, but some stiffness in the morning. She was \nencouraged to complete her scheduled physical therapy sessions and set for a follow-up \nafter six weeks. [Cl. Ex. No 1 at 42-44.] Another four weeks of physical therapy, at three \ntimes per week, were ordered. [Cl. Ex. No 1 at 45.] \n She was seen again in October and December and then again in February of 2023, \nwhen she reported “still having stiffness to LB most severe in the morning and after a \nprolonged sitting at work.” Physical therapy was continued for lower back spondylosis and \nstrengthening. [Cl. Ex. No 1 at 61.]   \n The claimant was referred to Dr. Rodrigo Cayme at OrthoArkansas on 7 June 2023 \nfor further evaluation and was assessed with (1) being overweight, (2) low back pain, (3) \nlumbosacral spondylosis without myelopathy, and (4) degeneration of lumbar intervertebral \ndisc. An MRI was ordered for the following week. [Cl. Ex. No 1 at 71-75.] The MRI scan \nshowed: \n1. Disc Disease at L4-L5 with prominent endplate change. Diffuse mild disc bulging \nand facet degenerative change produces moderate compromise of both neural \nforamina. No significant central canal stenosis. \n2. Mild disc bulging as L5-S1 producing some slight compromise of the right lateral \nrecess, minimal to left. \n \n[Cl. Ex. No 1 at 80.] \n Following the MRI scan, she followed up with OrthoArkansas, and Bilateral L5/S1, \nL4/5 Facet Joint Injections were planned. The record notes that if she did not feel relief, \nradiofrequency ablations would follow. [Cl. Ex. No 1 at 88.] The injections were performed \non 10 July 2023 [Cl. Ex. No 1 at 89-90], and at her 27 July 2023 follow-up appointment, she \nreported no improvement in her mobility. The claimant was then referred to Dr. Paulus for \nconsultation on a nerve ablation procedure. [Cl. Ex. No 1 at 97.] \n\nWOODS- H303954 \n10 \n \n The claimant submitted a letter from a UAMS Neighborhood Clinic, signed by Dr. \nViviana Suarez and dated 31 July 2023, that recommended she “remain out of work.” [Cl. \nEx. No 1 at 98-99.] She does not provide any clinic notes associated with a visit for that \nletter. She also submitted a “Return to Work/School” note from OrthoArkansas, dated 7 \nAugust 2023, which references her 27 July visit and her referral to Dr. Paulus, but makes \nno mention of any ordered time off from work or any work restrictions. [Cl. Ex. No 1 at 100.] \n A letter from Dr. Paulus states that she was seen on 22 August 2023 to discuss a \nnerve ablation procedure that usually takes some time to authorize through insurance. It \nfurther states that “there are no restrictions following this procedure.” [Cl. Ex. No 1 at 107.] \nThere is no mention of any restrictions while the approval for the procedure was pending. \nAnother letter, dated 18 September 2023, appears to advocate for her group health \ninsurance approving coverage for the ablation procedure to address “vertebrogenic pain due \nto Modic changes at L4 and L5.” [Cl. Ex. No 1 at 108-109.] \n The claimant also submitted some clinic records from 2024. The OrthoArkansas \nnotes reflect that she was counseled that, “back pain is not an inherently disabling \ncondition, and that the degenerative changes at L4-5 may certainly be painful but should \nnot affect work safety, so I do not have specific work restrictions to recommend at this \ntime.” [Cl. Ex. No 2 at 3.] They discussed again the nerve ablation procedure, which her \nprimary insurance denied, but her secondary insurance approved; and she voiced interest \nin moving forward with that procedure. [Cl. Ex. No 2 at 10.] \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the pre-hearing conference, are outlined above \nand accepted. It is settled that the Commission, with the benefit of being in the presence of \nthe witness and observing his or her demeanor, determines a witness’ credibility and the \n\nWOODS- H303954 \n11 \n \nappropriate weight to accord their statements. See Wal-Mart Stores, Inc. v. VanWagner, \n337 Ark. 443, 448, 990 S.W.2d 522 (1999).  \nAs an initial matter, I find the claimant’s credibility to be limited, as her testimony \naround significant events is contradicted by the medical records. First, she claims that after \nher fall and visit to the emergency department, “I was off work that whole week, and then, I \nguess, like, that Friday Ms. Shawanda Robinson, she called me and told me to go over to \nConcentra.” [TR at 22.] Her medical records, however, show that she fell and was seen at \nthe emergency department on March 22\nnd\n and was then seen at Concentra two days later, \nwith her notes from that appointment indicating that the provider signed off on the note at \n9:27 AM.\n 3\n There is no off-work note, for any amount of time, accompanying the emergency \ndepartment records; but at most there was one day between her emergency department and \nConcentra visits. Still, she testified on cross examination that she was at home on bed rest \nafter the fall and was directed to Concentra “the next week.” [TR at 38.] \nSimilarly, she stated that her last day of work was 13 July 2023 “because I had to go \nin and have a procedure done.” [TR at 24.] The medical records, however, clearly show that \nthe procedure was performed on 10 July 2023. Given her misstatements of those clearly \nidentifiable dates, and the certainty with which she relayed them at the hearing, I find her \ncredibility as an accurate historian to be very limited. \nA.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT SHE IS ENTITLED TO TTD BENEFITS. \n \n For an unscheduled injury such as the one to the claimant’s lower back, temporary \ntotal disability (TTD) is a period within the healing period in which the employee suffers a \ntotal incapacity to earn any wages. Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 \n \n3\n A review of the calendar shows that 22 March 2022 was a Tuesday and that 24 March \n2022 was a Thursday. See Buxton v. City of Nashville, 132 Ark. 511, 201 S.W. 512 (1918) \n(courts may take judicial notice of the days of the week for particular dates). \n\nWOODS- H303954 \n12 \n \nS.W.2d 392 (1981). A “healing period” is “that period for healing of an injury resulting from \nan accident.” Ark. Code Ann. § 11-9-102(12). The healing period ends when the underlying \ncondition has become stable and nothing further in the way of treatment will improve that \ncondition. Mad Butcher, Inc. v. Partker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Whether a \nhealing period has ended is a question of fact for the Commission. Dallas County Hospital v. \nDaniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001). \n Here, the claimant seeks TTD for a period beginning more than a year after her \nrelease from authorized care for a strained muscle. There is no question that she returned \nto work after the fall and that she continued working after her 15 April 2022 release from \ncare. Her healing period ended at that time. The question turns then to whether she can \nprove by a preponderance of the evidence that she reentered a healing period, beginning on \n13 July 2023, associated with her compensable back injury and in which she was unable to \nearn wages. On this record she falls short of meeting that burden. \n The claimant began unauthorized treatment with Arkansas Spine and Pain months \nafter her release from care and noted, at the time, that her symptoms existed prior to her \nfall in March of 2022, dating the onset as January of 2022. She similarly reported an onset \nof symptoms predating her fall in the FMLA paperwork provided by the respondents, which \nwere dated in June of 2023, and noted an onset of a chronic condition in January of 2022. \n[Resp. Ex. No 1 at 7-9.]  \nThere is no evidence that she sought authorized care for her workplace injury after \nher release and that such a request was actually denied. Conversely, Kayla Jo Dixon \ntestified that when she eventually became aware that the claimant was not showing up for \nwork, she directed her to Concentra for any necessary treatment related to her compensable \ninjury. The claimant did not follow that direction. Ms. Dixon testified credibly that she was \nnot aware of any condition that prevented the claimant from working. \n\nWOODS- H303954 \n13 \n \n The claimant does not attempt to assert that she reentered a healing period during \nher several visits to Arkansas Spine and Pain in the year following her release; and the \nrecords from OrthoArkansas do not clearly indicate that she re-entered a healing period in \nJuly of 2023 for a compensable injury or that she was unable to work. It is clear from the \nnotes\n4\n that she was pursuing treatment during that time under her group health coverage \nand not under Workers’ Compensation benefits. The medical records after her release from \nauthorized care evidence treatment for a chronic condition likely attributable to scoliosis \nand degenerative disc problems. As stated in the opinion letter from Dr. Ryan Fitzgerald, \nwhich I find credible,\n5\n “imaging obtained in June 2023... was negative for any evidence of \nan acute traumatic injury... [and] revealed multiple potential degenerative pain generators \nindependent of the [workplace fall]. [Resp. Ex. No 1 at 27.] Indeed, her later records from \nOrthoArkansas relate her back pain to degenerative changes and state, “back pain is not an \ninherently disabling condition, and that the degenerative changes at L4-5 may certainly be \npainful but should not affect work safety, so I do not have specific work restrictions to \nrecommend at this time.” \n The lone work note from Dr. Suarez at the end of July 2023 (more than a year after \nher authorized care ended) vaguely states that the claimant should not work. It does not \nreference her compensable back injury or a treatment plan or a timeframe or relate to any \nother supporting documentation and is, therefore, simply not enough to meet her burden \nthat she cannot earn any wages due to her workplace injury. The claimant failed to produce \npersuasive evidence making a causal connection between her time out of work for the \n \n4\n See the insurance information listed above her 18 August 2023 OrthoArkansas letter. \n[Resp. Ex. No 1 at 21.] \n5\n See Poulan Weed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002) (the Commission may \naccept or reject a medical opinion and determine its probative value). \n\nWOODS- H303954 \n14 \n \nunauthorized treatment (both past treatment and potential future treatment) and her \ncompensable injury.  \n The thrust of the claimant’s argument appears that because she might qualify for \nlong-term disability under a plan offered by the respondents, she must also be entitled to \nTTD benefits under Arkansas Workers' Compensation laws at the same time. The statutes \nand cases relating to the availability of TTD benefits, however, do not support such a \nfinding. \n Because the claimant failed to prove by a preponderance of the evidence that she re-\nentered a healing period for her workplace injury that precluded her ability to work, her \nclaim for TTD benefits must fail.  \nB.   THE CLAIMANT IS NOT ENTITLED TO A CONTROVERTED ATTORNEY’S FEE. \n \n Because her claim for TTD benefits fails, her claim for associated attorney’s fees \nmust also fail. \nV.  ORDER \n      Consistent with the Finding of Facts and Conclusions of Law above, this claim is \ndenied and dismissed.  \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":26825,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H303954 MYIA M. WOODS, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, EMPLOYER RESPONDENT CADENCE INSURANCE CO./RISK MANAGEMENT SERVICES, CARRIER/TPA RESPONDENT OPINION FILED 25 JUNE 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrati...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:2","denied:3"],"injuryKeywords":["knee","back","lumbar","sprain","strain","cervical","thoracic"],"fetchedAt":"2026-05-19T22:53:17.736Z"},{"id":"alj-H108679-2024-06-24","awccNumber":"H108679","decisionDate":"2024-06-24","decisionYear":2024,"opinionType":"alj","claimantName":"Pamela Murphy","employerName":null,"title":"MURPHY VS. AMERICAN PAPER AND TWINE CO.AWCC# H108679June 24, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Murphy_Pamela_H108679_20240624.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Murphy_Pamela_H108679_20240624.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H108679 \n \nPAMELA MURPHY, \nEMPLOYEE                                                                                                              CLAIMANT \n \nAMERICAN PAPER AND TWINE CO., \nEMPLOYER                                                                                                         RESPONDENT  \n \nACCIDENT FUND GENERAL INS. CO., \nCARRIER/TPA                                                                                                    RESPONDENT \n \nOPINION FILED JUNE 24, 2024 \n \nHearing conducted on Wednesday, June 12, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Pamela Murphy was Pro Se, of Greenbrier, Arkansas, and did not appear in \nperson at the hearing.  \n \nThe Respondents  were  represented  by  the Honorable Karen  McKinney,  Little  Rock,  Arkansas. \nMs. McKinney’s law partner Jarrod Parrish argued the motion. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on June 12, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. \nThe  Claimant  worked  for  the  Respondent/Employer  as  a driver. Admitted  into  evidence \nwas Respondent  Exhibit  1, Motion  to  Dismiss  with  attached  exhibits,  consisting  of  nine  pages; \nRespondents Exhibit 2,  Pamela Murphy letter dated February 13, 2024, consisting of one page; \nRespondent Exhibit 3, Preliminary notice, consisting of two pages; Respondents Exhibit 4, Notice \nof  Motion  to  Dismiss,  consisting  of  two  pages;  Commission  Exhibit  1, correspondence,  and \ncertified return receipt, consisting of five pages. I have also blue-backed Form AR-1, Form AR-2, \n\nMURPHY, AWCC No. H108679 \n \n2 \n \nForm  AR-C, email  from  Claimant  and  Response  from  Melanie  Miller  dated  April  16,  2024, as \ndiscussed infra. \nThe  record  reflects on October 28, 2021,  a  Form AR-1 was  filed  with  the  Commission.  \nThis form reflects that Claimant allegedly tripped over a dolly and fell out of a truck and possibly \nbroke her wrist. This alleged injury was reported to the Respondent/Employer on the same day. \nOn November 4, 2021, Respondents filed a Form AR-2 with no statement of position as to whether \nthey were accepting or controverting the claim. Claimant on April 15, 2022, filed a Form AR-C, \nthrough  her then-attorney,  Laura  Beth  York. The Form  AR-C further  alleged  that  the  injury \noccurred while Claimant was making a delivery. The form also alleged she sustained injuries to \nher right arm, right shoulder, left lung, ribs on the left side, left side of stomach, and other whole \nbody. Attorney Karen McKinney entered her appearance on behalf of the Respondents on May 2, \n2022. \nThe Claimant  filed  for  a  change  of  physician  on March  27,  2023.  There, the  Claimant \nwanted to be transferred from Dr. Brent Walker to Dr. Krishnappa Prasa. This request was granted \non April 11, 2023. Claimant’s counsel next filed a Motion to Withdraw on October 5, 2023. The \nmotion references several unsuccessful attempts to reach the Claimant regarding the motion. The \nFull-Commission  granted  the  Motion  to  Withdraw  on October  24,  2023. Respondents’ counsel \nfiled a Motion to Dismiss on January 9, 2024. The motion states that the Claimant has not requested \na hearing in over six months. A copy of the motion was sent to the Claimant via certified mail on \nJanuary 25,  2024. On  March  1,  2024,  Claimant  sent  correspondence  objecting  to  the  Motion  to \nDismiss and requesting a hearing. The Motion to Dismiss was held in abeyance and Prehearing \nQuestionnaire documents were sent out on March 20, 2024. Claimant’s Preliminary Notice was \ndue April 4, 2023, and her Prehearing Questionnaire was due on April 9, 2024. The Claimant was \n\nMURPHY, AWCC No. H108679 \n \n3 \n \nmade aware in an email dated April 10, 2024, that she was past her due date for these documents; \nand if she does not submit them by noon, April 12, 2024, that I would be moving forward with \nRespondents’ Motion to Dismiss. The Claimant did not complete and submit either document by \nthat deadline. \nTherefore,  another  letter  making  her  aware  of  the  Motion  to  Dismiss  was  sent  to  the \nClaimant on April 15, 2024. Claimant, in an unexpected  email dated April 16, 2024, stated she \nwas in Florida tending to her sick father who died four days after her arrival to the state. She made \nme aware that she is ready to get back on track. After extending condolences, I agreed to extend \nher filing time for the prehearing documents to  April 30, 2024. In the interim, the notice of the \nMotion to Dismiss was received by Claimant, via certified U.S. Mail, on April 18, 2024. She did \nnot respond to the notice within twenty days and since then failed to file the overdue prehearing \ndocuments. \nThus, in accordance with applicable Arkansas law, the Claimant was mailed due and proper \nlegal notice of the Motion to Dismiss hearing notice at her current address of record via the United \nStates Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and regular \nFirst-Class Mail on May 10, 2024. The certified notice was not claimed by the Claimant, but the \nnotice sent regular First-Class Mail did not come back to the Commission. The hearing took place \non June 12, 2024.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts, issues,  the  applicable  law,  and  the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n\nMURPHY, AWCC No. H108679 \n \n4 \n \n2. The Claimant and Respondents both had reasonable notice of the June 12, 2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on the Respondents’ Motion to Dismiss. The  Claimant  was  given  every \nreasonable opportunity to prosecute her case and has failed to do so. Claimant’s actions run counter \nto AWCC Rule 099.13.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant requested a hearing and has \nnot  satisfied  the  basic  requirements  for  such  a  request,  i.e.  the  filing  of  prehearing  documents. \nDespite granting  her  more  time,  on  at  least  two  different  occasions, to  file  her  prehearing \ndocuments, the Claimant has not pushed her Claim forward. Based on the foregoing, I do find the \nRespondents have proven by  the  preponderance  of  the  evidence  that  Claimant  has  failed  to \nprosecute her claim. And as a result, Respondents’ Motion to Dismiss should be granted. \n \n \n \n \n \n \n\nMURPHY, AWCC No. H108679 \n \n5 \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted and this claim is hereby dismissed without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":7832,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H108679 PAMELA MURPHY, EMPLOYEE CLAIMANT AMERICAN PAPER AND TWINE CO., EMPLOYER RESPONDENT ACCIDENT FUND GENERAL INS. CO., CARRIER/TPA RESPONDENT OPINION FILED JUNE 24, 2024 Hearing conducted on Wednesday, June 12, 2024, before the Arkansas Workers’ Compensat...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":["wrist","shoulder","back"],"fetchedAt":"2026-05-19T22:53:07.257Z"},{"id":"alj-H301176-2024-06-24","awccNumber":"H301176","decisionDate":"2024-06-24","decisionYear":2024,"opinionType":"alj","claimantName":"Rosemary Cross","employerName":null,"title":"CROSS VS. AR. HEART HOSPITAL, LLCAWCC# H301176June 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Cross_Rosemary_H301176_20240624.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Cross_Rosemary_H301176_20240624.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301176 \n \nROSEMARY CROSS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nAR. HEART HOSPITAL, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nBRIDGEFIELD EMPLOYERS INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nSUMMIT CONSULTING, LLC, \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION FILED JUNE 25, 2024 \n \nHearing conducted on Wednesday, June 19, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Rosemary Cross, pro se, of Little Rock, Arkansas, did appear in person at the \nhearing.  \n \nThe Respondents were represented by the Honorable Guy Alton Wade, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on June 19, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. However, Claimant was allowed to argue why her claim should not be dismissed. Claimant, \nwho according to Commission records, is pro se. \nThe  Claimant  worked  for  the  Respondent/Employer  as  a dietary  aid. The  Claimant’s \nalleged injuries occurred on February 4, 2023. Admitted into evidence was Respondents Exhibit \n1, pleadings, and  correspondence,  consisting of 26 pages. I have  also blue-backed legal  advisor \nnote dated June 15, 2023, email from Melanie  Miller to Claimant dated April 9, 2024, certified \n\nCROSS, AWCC No. H301176 \n \n2 \n \nU.S.  Mail  return  receipt  dated  May  15,  2024,  Form  AR-1, Form  AR-2 and Form  AR-C, as \ndiscussed infra. \nThe  record  reflects on February 21,  2023,  a  Form AR-1 was  filed  with the  Commission \npurporting that Claimant was injured while throwing trash in the dumpster when the weight of the \ngarbage  pulled  her  into  the  dumpster  injuring  her  left  arm,  knee,  and  left  side  of  her  back on \nFebruary 4, 2023. The Claimant notified the Respondent/Employer of her injury on February 6, \n2023. Respondents filed a Form AR-2 on February 22, 2023, that contained no statement whether \nRespondents will controvert the claim. Claimant then filed a Form AR-C on February 28, 2023, \nreflecting more specifically that Claimant purportedly sustained injuries to her left leg, left knee, \nback, left ear, and head on February 4, 2023. Attorney Laura Beth York entered her appearance on \nbehalf of the Claimant on February 28, 2023. Attorney Guy Alton Wade entered his appearance \non March 31, 2023. On April 20, 2023, Attorney York filed a Motion to Withdraw as Counsel. \nThe motion was granted on May 2, 2023. \nThe Respondents’ counsel, Guy Wade, filed  a Motion to Dismiss on May 15,  2023, \nrequesting  this  claim  be  dismissed  for a lack  of  prosecution. The Claimant  was  sent a  certified \nnotice of the Motion to Dismiss to her last known address of record on May 23, 2023. The certified \nnotice was unclaimed.  Claimant, nevertheless, contacted Catherine Richards, a legal advisor for \nthe Commission, on June 15, 2023, and was informed of the Motion to Dismiss. Claimant stated \nthat she did not get the notice because she had moved to a new home. Claimant then provided her \nnew address to the legal  advisor. This information was  relayed to me, and  I held the Motion to \nDismiss in abeyance.  \nOn June 15, 2023, Claimant requested a change of physician from Dr. Scott Carle to Dr. \nBarry Baskin. Claimant’s request was approved on September 12, 2023. However, Respondents \n\nCROSS, AWCC No. H301176 \n \n3 \n \nrenewed their Motion to Dismiss on December 18, 2023, again claiming the lack of prosecution. \nThe Claimant was sent notice of this motion on December 27, 2023. Claimant received the certified \nnotice on December 29, 2023. The Claimant did not respond to the motion within twenty days. A \nhearing notice was sent out on the Motion to Dismiss for March 5, 2024. The Claimant appeared \nat  the  hearing  and  before  the  hearing started, stated  she  wanted  a  full  hearing.  The  Motion  to \nDismiss  hearing  was  cancelled  and  Claimant  was  physically  handed  Respondents’ discovery \nrequest  with  the  understanding  that  it  is  to  be  answered  in  30  days.  The  Claimant  had failed  to \nanswer Respondents’ discovery or produce the pre-hearing questionnaires sent to her by my office.   \nThe Claimant was notified, via email dated April 9, 2024, that she has not returned the pre-\nhearing questionnaire to my office nor submitted Respondents’ discovery request within the 30 \ndays. The Claimant was warned in the same email that if she doesn’t comply by twelve noon, April \n12, 2024, another Motion to Dismiss hearing would be set. Claimant failed to answer discovery or \nreturn any pre-hearing documents. Thus again, in accordance with applicable Arkansas law, the \nClaimant was mailed due and proper legal notice of the Respondents’ Motion to Dismiss hearing \ndate at  her current  address  of  record  via  the  United  States  Postal  Service  (USPS),  First  Class \nCertified Mail, Return Receipt Requested, and regular First-Class Mail. The certified notice was \nclaimed by Claimant on May 15, 2024. The hearing took place on June 19, 2024. As mentioned \nbefore, the Claimant did show up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n\nCROSS, AWCC No. H301176 \n \n4 \n \n2. The Claimant and Respondents both had reasonable notice of the June 19, 2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith  proper  notice, on  the Respondents’ Motion  to Dismiss. The  Claimant  was  there  to  defend \nagainst  the  dismissal  motion.  Claimant argued  that she didn’t prosecute her claim because she \ndidn’t have a lawyer to help her understand the pre-hearing and discovery documents. I don’t credit \nthis argument. Claimant was advised months ago that she has the right to hire an attorney or speak \nto a legal advisor for free to help with her claim. Claimant’s contact with the legal advisor when \nthe first Motion to Dismiss was filed and proved successful in getting the motion held in abeyance. \nThere is no reason why Claimant should not feel the use of the free legal advisor would not serve \nher interest in completing her documents. Claimant next argued that people at her job were getting \nlaid off work and she was afraid that if she pursued her claim she would be fired. I also don’t credit \nthis  argument  because  she provided  no  bases  for  this  belief.  She  could  have  contacted  a  legal \nadvisor and explained her fear of retaliation. But instead, she chose to do nothing.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  her Form  AR-C  on \nFebruary 28, 2023, and since then has taken no real action in furtherance of this claim. Claimant’s \nactions do not show she was eager to prosecute her claim despite asking for a full hearing. Claimant \nwas accorded multiple opportunities to prosecute her claim but refused to do so. The Claimant has \n\nCROSS, AWCC No. H301176 \n \n5 \n \nfailed  to  provide the pre-hearing  questionnaire  and participate  in discovery. In  this  regard,  the \nClaimant has failed to do the bare minimum in prosecuting her claim. Therefore, I do find by the \npreponderance  of  the  evidence  that  Claimant  has  failed  to  prosecute  her claim. And  as  a  result, \nRespondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted and this claim is hereby dismissed without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":9042,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301176 ROSEMARY CROSS, EMPLOYEE CLAIMANT AR. HEART HOSPITAL, LLC, EMPLOYER RESPONDENT BRIDGEFIELD EMPLOYERS INS. CO., CARRIER RESPONDENT SUMMIT CONSULTING, LLC, TPA RESPONDENT OPINION FILED JUNE 25, 2024 Hearing conducted on Wednesday, June 19, 2024, before ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T22:53:09.320Z"},{"id":"full_commission-H302799-2024-06-21","awccNumber":"H302799","decisionDate":"2024-06-21","decisionYear":2024,"opinionType":"full_commission","claimantName":"Gisela Gutierrez","employerName":null,"title":"GUTIERREZ VS. TYSON POULTRY, INC.AWCC# H302799 JUNE 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Gutierrez_Gisela_H302799_20240621.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Gutierrez_Gisela_H302799_20240621.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H302799 \n \nGISELA  GUTIERREZ, \nEMPLOYEE \n \nCLAIMANT \nTYSON POULTRY, INC.,  \nEMPLOYER \n \nRESPONDENT \nTYNET CORPORATION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 21, 2024  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JEREMY SWEARINGEN, \nAttorney at Law, Little Rock, Arkansas. \n \nORDER \n The parties have filed a JOINT MOTION TO STAY APPEAL AND \nREMAND FOR CONSIDERATION OF JOINT PETITION FOR FINAL \nSETTLEMENT.  The Full Commission denies the motion.   \n An administrative law judge filed an opinion on December 19, 2023 \nand found that the claimant failed to prove she sustained a compensable \ninjury.  The claimant appealed to the Full Commission.  In an opinion filed \nMay 31, 2024, a majority of the Full Commission found that the claimant \nproved she sustained a compensable injury.  The Full Commission awarded \nreasonably necessary medical treatment, a period of temporary total \n\nGUTIERREZ - H302799  2\n  \n \n \ndisability benefits, and fees for legal services.  The respondents to date \nhave not filed a notice of appeal.   \n A joint petition eliminates the Commission’s jurisdiction over a claim.  \nArk. Code Ann. §11-9-805(b)(2)(Supp. 2023); Sayre v. State, 12 Ark. App. \n238, 674 S.W.2d 941 (1984).  The parties request in the present matter \n“that the Claimant’s pending appeal to the Full Commission in this claim be \nstayed, and that this claim be remanded to the Commission Clerk for \nreferral to an Administrative Law Judge for consideration of a Joint Petition.”   \n However, the Full Commission has already filed an opinion in this \nmatter on May 31, 2024, following the claimant’s timely appeal, and we \nhave awarded benefits to the claimant.  The Full Commission therefore \ndenies the motion to “stay appeal.”     \n IT IS SO ORDERED.  \n    \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2273,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H302799 GISELA GUTIERREZ, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYNET CORPORATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 21, 2024","outcome":"denied","outcomeKeywords":["remanded:2","granted:2","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.389Z"},{"id":"alj-H304038-2024-06-21","awccNumber":"H304038","decisionDate":"2024-06-21","decisionYear":2024,"opinionType":"alj","claimantName":"Michael Nepote","employerName":null,"title":"NEPOTE VS. HARPS FOOD STORES, INC.AWCC# H304038 & H302541June 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/NEPOTE_MICHAEL_H304038_H302541_20240621.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NEPOTE_MICHAEL_H304038_H302541_20240621.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NOS.: H304038 & H302541 \n \n \nMICHAEL NEPOTE, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nHARPS FOOD STORES, INC., SELF-INSURED   \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nHARPS FOOD STORE, INC., CCMSI,  \nINSURANCE CARRIER /THIRD                                                                                         \nPARTY ADMINISTRATOR                                                                                  RESPONDENT  \n                                                                     \n                       \nOPINION FILED JUNE 21, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Litte Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, failed to appear at the hearing.  \n \nRespondents represented by the Honorable Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on April 24, 2024 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced claims should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (d) (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule \n099.13.  \nAppropriate Notice of this hearing was tried on all parties to their last known address, in \nthe manner set by law.   \nThe  record  consists  of  the  transcript  of  the April  24, 2024, hearing  and  the  documents \ncontained therein.  Specifically, Commission’s Exhibit 1 consists of twenty-nine (29) numbered \n\nNEPOTE – H304038 & H302541  \n \n2 \n \npages; and the Respondents’ Hearing Exhibit covering twelve (12) totaled pages was marked as \nRespondents’ Exhibit 1.     \n                                                                  Discussion \n On June 26, 2023, the Claimant’s former attorney filed with the Commission two claims \nfor Arkansas workers’ compensation benefits on behalf of the Claimant by way of a separate Form \nAR-C for each claim.  The Claimant’s first alleged work-related injury occurred on May 13, 2022, \nand that is for AWCC Claim No. H304038.  Specifically, per this document, the Claimant alleged \nhe injured his neck, left  shoulder, left elbow, neck and other  whole body  during the course and \nscope of his employment with the respondent-employer.  In fact, the Claimant’s attorney marked \nall the boxes for every conceivable benefit under the law in connection with this claim.  On that \nsame date, the Claimant’s attorney filed another claim  for  benefits which  is AWCC  Claim  No. \nH302541.    Per  this  documentation,  the  Claimant alleged injuries  to identical  body  parts in  the \nearlier  Form  AR-C.  However,  the date  of  the  alleged  accident for  this  claim is September  15, \n2022.  Similarly, Claimant’s attorney marked off  all  the  boxes  for  both initial  and additional \nworkers’ compensation benefits for this most recent claim.   \n The  respondent-insurance  carrier  filed  a  Form  AR-2 with  the  Commission  on  May  16, \n2023, accepting the September 15, 2022, accident injury as a compensable claim.  The evidence \nshows that the Respondents have paid some benefits on this claim.  Additionally, on July 14, 2023, \nthe  Respondents  filed  another Form  AR-2  with  the  Commission  accepting  the May  13, 2022, \nwork-related accident as a compensable left shoulder injury, but as a “medical only” claim.   \n  Subsequently, on January 29, 2024, the Claimant’s attorney filed with the Commission a \nmotion to withdraw as counsel of record in both claims. The Full Commission entered an order on \n\nNEPOTE – H304038 & H302541  \n \n3 \n \nMarch  5,  2024, granting the Claimant’s attorney motion  to  withdraw from  representing  him in \nboth of these claims.   \n Since this time, there has been no bona fide action on the part of the Claimant to prosecute \nhis claims for workers’ compensation benefits, or otherwise pursue a resolution in this matter.   \nAs a result, on March 12, 2024, the Respondents filed with the Commission a Motion to \nDismiss for Failure  to  Prosecute  these  claims.    The  Respondents  notified  the Claimant of their \nmotion  for dismissal  by way  of depositing a  copy of  the  foregoing  pleading in the mail via the \nUnited States Postal Service.  \nThe Commission mailed a letter-notice to the Claimant to his last known address, on March \n13, 2024.  Said letter was sent by first-class mail and certified mail.  Per this correspondence, the \nClaimant was given a deadline of twenty (20) days for filing a written response to the Respondents’ \nmotion. \nHowever, the United States Postal Service informed the Commission on March 14, 2024, \nthat  they delivered this item to the Claimant’s residence and left it with an individual.  Per  the \nproof  of  delivery information concerning  this  item  received  by  the  Commission  from  the  Post \nOffice, the Claimant accepted delivery of this parcel of mail.  However, only the Claimant’s last \nname is legibly printed on this document.   \nYet, there has been no response from the Claimant.   \nTherefore, pursuant to a Hearing Notice dated March 27, 2024, the Commission notified \nthe parties that a hearing was scheduled to address the Respondents’ motion to dismiss these claims \ndue to a lack of prosecution.  The Commission mailed the notice of hearing to the Claimant via \ncertified and first-class mail.  Said hearing was scheduled for April 24, 2024, at 11:00 a.m., at the \nArkansas Workers’ Compensation Commission’s locale in Little Rock, Arkansas. \n\nNEPOTE – H304038 & H302541  \n \n4 \n \nThe hearing notice sent to the Claimant via certified mail was delivered to the Claimant’s \nhome  and  left  with  an  individual  on  March  29,  2024.    Tracking  information  received  by  the \nCommission from the Post Office shows that the signature of the recipient of this parcel of mail is \nunknown  because  it  is scribbled.  Conversely,  the  notice  sent  by  first  class  mail  has  not  been \nreturned to the Commission.  \nStill, there has been no response from the Claimant.  \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Claimant failed to appear at the dismissal hearing.  However, the Respondents \nappeared through their attorney.   \nThe Respondents’ counsel noted that the Claimant has failed to promptly prosecute these \nclaims for additional workers’ compensation benefits.  Counsel further noted that the Claimant did \nnot respond  to any  of  the  correspondence from this  Commission,  and  he did  not appear  at  the \nhearing to object to his claims being dismissed.  The Respondents’ attorney indicated that the \nClaimant has clearly illustrated an unwillingness or a lack of a desire to prosecute these claims. \nTherefore, counsel moved that these claims be dismissed under Ark. Code Ann. §11-9-702, and \nArkansas Workers’ Compensation Commission Rule 099.13, without prejudice due to all the afore \nreasons. \n                         Adjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in the \nmotion for dismissal of these claims due to a lack of prosecution are outlined below:  \n Specifically, Ark. Code Ann. §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \n\nNEPOTE – H304038 & H302541  \n \n5 \n \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n \nMy review of the evidence shows that the Claimant has had ample time to pursue his claims \nfor additional workers’ compensation benefits, but he has failed to do so.  Specifically,  the \nClaimant has not requested a hearing or otherwise taken any affirmative action to prosecute his \nclaims since  the  filing  of  the  Form  AR-Cs in  June  2023.    Most  notably,  the  Claimant  has  not \nresponded to the Notices of this Commission, nor has he contested the dismissal request or objected \nto his claims being dismissed.  Under these circumstances, I am compelled to find that the evidence \npreponderates that the Claimant has abandoned claims for workers’ compensation benefits.   \nAfter consideration of the evidence before me, I find the Respondents’ Motion to Dismiss \nfor Failure to Prosecute to be well founded.  Accordingly, pursuant to Ark. Code Ann. §11-9-702 \n(d), and Commission Rule 099.13, these claims for additional workers’ compensation benefits are \nhereby dismissed without prejudice to the refiling of each claim per the limitation period specified \nwithin the applicable limitation period.  \n \n\nNEPOTE – H304038 & H302541  \n \n6 \n \n                             FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of these \nclaims due to a lack of prosecution, for which a hearing was held. \n \n3. The Claimant has not requested a hearing on these claims since the filing of \nthe  Form  AR-Cs on  June  26,  2023, which  was done almost  a  year  ago. \nHence, the evidence preponderates that the Claimant has failed to prosecute \nhis claims for additional workers’ compensation benefits.      \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss these claims for a lack of prosecution \nis hereby granted, without prejudice, pursuant to Ark. Code Ann. §11-9-702 \n(d), and Commission Rule 099.13, to the refiling of each claim within the \nlimitation period specified by law.  \n \nORDER \nIn accordance with the findings of fact and conclusions of law set forth above, these claims \nare hereby   dismissed   pursuant to Ark. Code   Ann. §11-9-702, and Arkansas Workers’ \nCompensation  Commission  Rule 099.13, without  prejudice, to  the  refiling  of them, within the \nlimitation period specified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":11901,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NOS.: H304038 & H302541 MICHAEL NEPOTE, EMPLOYEE CLAIMANT HARPS FOOD STORES, INC., SELF-INSURED EMPLOYER RESPONDENT HARPS FOOD STORE, INC., CCMSI, INSURANCE CARRIER /THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 21, 2024 Hearing held before Administra...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["neck","shoulder"],"fetchedAt":"2026-05-19T22:53:05.188Z"},{"id":"full_commission-H300192-2024-06-20","awccNumber":"H300192","decisionDate":"2024-06-20","decisionYear":2024,"opinionType":"full_commission","claimantName":"Ronnie Corter","employerName":"Commercial Audio Systems, Inc","title":"CORTER VS. COMMERCIAL AUDIO SYSTEMS, INC. AWCC# H300192 JUNE 20, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Corter_Ronnie_H300192_20240620.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Corter_Ronnie_H300192_20240620.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H300192 \n \nRONNIE CORTER, EMPLOYEE  CLAIMANT \n \nCOMMERCIAL AUDIO SYSTEMS, INC., EMPLOYER RESPONDENT \n \nSTONETRUST INSURANCE COMPANY,  \nINSURANCE CARRIER/TPA RESPONDENT \n \n \nOPINION FILED JUNE 20, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE, JASON M. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed January 10, 2024.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing \nconference conducted on September 6, 2023 and contained in a \npre-hearing order filed that same date are hereby accepted as fact.  \n \n2. Claimant has met his burden of proving by a preponderance of the \nevidence that he suffered a compensable injury to his left shoulder \non September 26, 2022. \n \n\nCORTER - H300192  2\n  \n \n \n3. Respondent is liable for payment of all reasonable and necessary \nmedical  treatment  provided  in  connection  with  claimant’s \ncompensable injury. \n \n4. Claimant has proven by a preponderance of the evidence that he \nis  entitled  to  temporary  total  disability  benefits  beginning \nSeptember  29,  2022  and  continuing  through  a  date  yet  to  be \ndetermined. \n \n5. Respondent has controverted claimant’s entitlement to all unpaid \nindemnity benefits. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed.  Specifically, we find from a preponderance \nof the evidence that the findings made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n\nCORTER - H300192  3\n  \n \n \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(a)(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion.  In my de novo review \nof the record, I find that the claimant has not proven by a preponderance of \nthe evidence that he suffered a compensable injury to his left shoulder on \nSeptember 26, 2022.  \n The claimant in this matter has a long history of bilateral shoulder \nissues and had surgery on his left shoulder in May 2022, approximately four \n(4) months prior to the accident in question.  (Hrng. Tr., P. 6).  The claimant \nreturned to work for the respondent employer in early September 2022 with \nlifting restrictions.  (Hrng. Tr., P. 7). \n\nCORTER - H300192  4\n  \n \n \n On September 26, 2022, the claimant walked to work.  When he \narrived prior to beginning work for the day, the claimant attempted to open \nthe building’s front door.  A coworker, Miguel, walked in the door in front of \nhim and pulled the door shut while the claimant held the handle.  (Hrng. Tr., \nPp. 8, 27, 31). \n The claimant would later seek medical treatment for his shoulder on \nSeptember 29, 2022, three days after the alleged injury.  (Hrng. Tr., P. 11). \nThe claimant’s treating physician, Dr. Wesley Cox, later performed a total \nleft shoulder arthroplasty.  (Resp. Ex. 1, P. 35) \n After a hearing on December 13, 2023, an administrative law judge \n(ALJ) found the claimant has proven by a preponderance of the evidence \nthat he sustained a compensable left shoulder injury.  However, there were \nno objective findings of an injury, and the claimant was not performing \nemployment services at the time of his injury. \n Arkansas Code Annotated section 11-9-102 (4)(A)(i) provides that a \ncompensable injury includes “[a]n accidental injury causing internal or \nexternal physical harm to the body. . . An injury is ‘accidental’ only if it is \ncaused by a specific incident and is identifiable by time and place of \noccurrence.”  \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \n\nCORTER - H300192  5\n  \n \n \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  This requires that a claimant establish by a preponderance of \nthe evidence:  (1) an injury arising out of and in the course of employment; \n(2) that the injury caused internal or external physical harm to the body \nwhich required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings establishing an injury as \ndefined in Ark. Code Ann. §11-9-102(16) and; (4) that the injury was caused \nby a specific incident identifiable by time and place of occurrence.  Ark. \nCode Ann. § 11-9-102(4)(A)(i). \nThe injury in question falls under the “aggravation” classification \nsince the claimant’s left shoulder condition was clearly pre-existing.  An \naggravation of a pre-existing non-compensable condition is, itself, \ncompensable but must meet the definition of a compensable injury in order \nto establish compensability.  Oliver v. Guardsmark, Inc., 68 Ark. App. 24, 3 \nS.W.3d 336 (1999); Farmland Insurance Company v. DuBois, 54 Ark. App. \n141, 923 S.W.2d 5 883 (1996); Ford v. Chemipulp Process, Inc., 63 Ark. \nApp. 260, 977 S.W.2d 5 (1998).  \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\"  Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16).  \n\nCORTER - H300192  6\n  \n \n \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  The Commission is not required to believe the \ntestimony of the claimant or any other witness but may accept and translate \ninto findings of fact only those portions of the testimony that it deems worthy \nof belief.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 \n(2001). \nHere, there were no new objective findings of an injury to the \nclaimant’s left shoulder.  The claimant presented to the emergency room at \nWashington Regional Medical Center on September 27, 2022, complaining \nof groin pain.  (Resp. Ex. 1, Pp. 33-36).  He did not mention shoulder pain \nat this time and did not, in fact, seek treatment for his left shoulder until \nSeptember 29, 2022.  (Resp. Ex. 1, P. 37). \nOn May 23, 2022, only four (4) months prior to the accident in \nquestion, Dr. Wesley Cox performed a left open glenoid allograft (Latarjet) \nsurgery on the claimant and implanted screws in the claimant’s left \nshoulder.  (Cl. Ex. 1, Pp. 3-7).  Dr. Cox had contemplated an arthroplasty at \nthat time but believed the Latarjet was more appropriate for the claimant. \n\nCORTER - H300192  7\n  \n \n \n(Cl. Ex. 1, P. 3).  The risks of the Latarjet procedure included recurrent \ninstability and hardware failure.  (Cl. Ex. 1, P. 6).  \nIn August of 2022, an X-ray revealed, “breakdown of the coracoid \ntransfer fragment is seen with loose inferior screw.”  (Cl. Ex. 1, P. 14).  This \nscrew fragment and “erosive changes of the glenoid articular surface” were \nnoted after an X-ray at the Washington Regional emergency department on \nSeptember 29, 2022.  (Cl. Ex. 1, P. 18).  \nThe September 29 X-ray was “compared to the patient’s x -ray on his \nphone showing the fractured screw previous,” and there were no findings of \n“acute fracture or dislocation of the shoulder.”  Id.  The only objective \nfindings at that time were clearly pre-existing. \nThe claimant was examined by Dr. Cox on December 21, 2022, who \nopined that there “really has not been much change here.  He had this \nincident at work with his arm being pulled on the door and he has had \nsignificant pain since then his X-rays do not look a ton different that they did \nbefore, but his symptoms are certainly worse.”  (Cl. Ex. 1, Pp. 23-24).  \nOn April 5, 2023, Dr. Cox wrote that, “I do not have a perfect \nexplanation for the pain that he is having, but he has a multiple E operated \nshoulder that is [sic] been through several very significant surgeries, and \nafter any sort of traumatic event, there may be significant pain without new \nobvious structural injury.”  (Cl. Ex. 1, P. 26).  \n\nCORTER - H300192  8\n  \n \n \nAs of July 12, 2023, an MRI showed post-surgical changes from \nLatarjet, rotator cuff intact on the left shoulder with no tearing.  (Cl. Ex. 1, P. \n33).  Dr. Cox ultimately performed a full arthroplasty due to the claimant’s \nongoing complaints of pain, writing in his operative report that, “[f]ortunately, \nhe is not dealing with recurrent instability as much as he is dealing with \npain.”  (Cl. Ex. 1, P. 35). \nThe record is clear that there were no new objective findings of an \ninjury after September 27, 2022.  The only objective findings reflect the pre-\nexisting failure of the Latarjet procedure that began in or around August of \n2022.  \nThe claimant’s treating physician, Dr. Cox, repeatedly opines that \nthere was no acute injury associated with the alleged September 26, 2022 \nincident but rather the claimant was suffering from subjective pain.  Without \nany objective findings indicating that the claimant injured his shoulder on \nSeptember 26, 2022, his claim fails and the ALJ should be reversed on this \npoint. \nOur rules define a compensable injury as \"[a]n accidental injury . . . \narising out of and in the course of employment.\"  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  A compensable injury does not include an \"[i]njury which was \ninflicted upon the employee at a time when employment services were not \nbeing performed.\"  Ark. Code Ann. § 11-9-102(4)(B)(iii).  The Act, however, \n\nCORTER - H300192  9\n  \n \n \nfails to define the phrase \"in the course of employment\" or the term \n\"employment services.\"  Wood v. Wendy's Old Fashioned Hamburgers, \n2010 Ark. App. 307, 374 S.W.3d 785 (2010).  \nOur Supreme Court has held that an employee is performing \n\"employment services\" when he or she \"is doing something that is generally \nrequired by his or her employer.\"  Texarkana Sch. Dist. v. Conner, 373 Ark. \n372, 284 S.W.3d 57 (2008).  We use the same test to determine whether an \nemployee was performing employment services as we do when determining \nwhether an employee was acting within the course of employment.  Id.  \nSpecifically, it has been held that the test is whether the injury \noccurred \"within the time and space boundaries of the employment, when \nthe employee [was] carrying out the employer's purpose or advancing the \nemployer's interest directly or indirectly.\"  Id.  The critical inquiry is whether \nthe interests of the employer were being directly or indirectly advanced by \nthe employee at the time of the injury.  Id.  The issue of whether an \nemployee was performing employment services within the course of \nemployment depends on the particular facts and circumstances of each \ncase.  Id. \nIn short, an employee is performing employment services when \nengaged in the primary activity that he or she was hired to perform, or in \nincidental activities that are inherently necessary for the performance of the \n\nCORTER - H300192  10\n  \n \n \nprimary activity, or when an employee is performing employment \nservices when he or she is engaging in an activity that carries out the \nemployer's purpose or advances the employer's interests.  Olsten Kimberly \nQuality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997); Hightower v. \nNewark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 (1997). \nAn employee is generally not said to be acting within the course of \nemployment when he is traveling to or from the workplace, and thus, the \n\"going and coming rule\" ordinarily precludes compensation for injuries \nsustained while an employee is going to or returning from his place of \nemployment.  Linton v. Arkansas Dep't of Corrections, 87 Ark. App. 263,190 \nS.W.3d 275 (2004).  \nHowever, there are exceptions to the \"going and coming rule\" where \nthe journey itself is part of the employment service, such as traveling men \non a business trip and employees who must travel from job site to job \nsite.  Id.  Whether an employer requires an employee to do something has \nbeen dispositive of whether that activity constituted employment \nservices.  Campbell v. Randal Tyler Ford Mercury, Inc., 70 Ark. App. 35, 13 \nS.W.3d 916 (2000). \nIn the present case, the claimant was injured after walking to work. \n(Hrng. Tr., P. 27).  Although the claimant and other employees may access \na phone app called EzClocker to clock in and out for the day, the claimant \n\nCORTER - H300192  11\n  \n \n \ntestified that he had not clocked into work prior to reaching the respondent \nemployer’s front door.  (Hrng. Tr., Pp. 30-31).  He had not even entered the \nbuilding for the day.  (Hrng. Tr., P. 31).  In fact, the injury occurred when a \ncoworker, Miguel, pulled the door shut as the claimant was attempting to \nopen it.  (Hrng. Tr., Pp. 8, 31).  \nPrior to entering the building, there was no expectation that the \nclaimant perform any work activities in the parking lot.  (Hrng. Tr., P. 32). \nThe claimant testified that he did not have any job duties until entering the \nbuilding, and often not until morning meeting with the supervisor.  Id. \nAlthough the claimant did some exterior work on the building from time to \ntime, this was not a regular part of his job duties and he would not know \nwhether he had any of this work to do until entering the building and \nreceiving an assignment.  (Hrng. Tr., P. 33).  \nThe claimant testified that he had no responsibilities regarding \nopening the building.  (Hrng. Tr., P. 34).  He had received no instructions \nthe previous day regarding what to do that morning.  Id. \n  The claimant was clearly not performing employment services at the \ntime of his injury.  Although he was on the respondent employer’s property, \nit is undisputed that he had not entered the building when the alleged injury \noccurred and would not have been performing employment services until he \nreceived instruction on the day’s tasks. The claimant had not clocked in at \n\nCORTER - H300192  12\n  \n \n \nthe time of his injury, nor had he started work.  There were no preliminary \ntasks that the claimant must complete prior to work.  He was not doing any \nwork and he was not expected to be working.  There is no exception under \nwhich we can find that the claimant was providing employment services at \nthe time of his injury and for this reason. \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":16102,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H300192 RONNIE CORTER, EMPLOYEE CLAIMANT COMMERCIAL AUDIO SYSTEMS, INC., EMPLOYER RESPONDENT STONETRUST INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 20, 2024 Upon review before the FULL COMMISSION in ...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","fracture","rotator cuff"],"fetchedAt":"2026-05-19T22:29:45.379Z"},{"id":"full_commission-G500916-2024-06-20","awccNumber":"G500916","decisionDate":"2024-06-20","decisionYear":2024,"opinionType":"full_commission","claimantName":"Laquita Ferris","employerName":"Baxter County Regional Hospital, Inc","title":"FERRIS VS. BAXTER COUNTY REGIONAL HOSPITAL, INC. AWCC# G500916 JUNE 20, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Ferris_Laquita_G500916_20240620.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Ferris_Laquita_G500916_20240620.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. G500916 \n \nLAQUITA I. FERRIS, EMPLOYEE              CLAIMANT \n \nBAXTER COUNTY REGIONAL HOSPITAL, INC., \nEMPLOYER RESPONDENT NO. 1 \n \nRISK MANAGEMENT RESOURCES,  \nINSURANCE CARRIER/TPA RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL  \nDISABILITY TRUST FUND RESPONDENT NO. 2 \n \nOPINION FILED JUNE 20, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” SPENCER, \nAttorney at Law, Mountain Home, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE WALTER A. MURRAY, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law Judge \nfiled September 12, 2023.  In said order, the Administrative Law Judge made the \nfollowing findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim.  \n \n\n \nFERRIS - G500916  2\n  \n \n \n2. That an employer/employee relationship existed on February 1, 2015, when \nthe claimant sustained a compensable injury to her right knee.  \n \n3.  Claimant  earned  an  average  weekly  wage  of  $398.36,  entitling  her  to \ncompensation rates of $266.00 for temporary total disability and $200.00 for \npermanent partial disability.  \n \n4. That the claimant has proven, by a preponderance of the credible evidence, \nthat she is entitled to additional reasonable and necessary medical treatment \nconsisting of conservative treatment and management under the direction of \nDr.  Chris  Arnold  and  the  conservative  treatment  and  management  is \ncausally  related  and  reasonably  necessary  for  the  treatment  of  the  work-\nrelated left knee injury. \n \n5. The claimant has failed to satisfy the burden of proof that she is permanently \nand totally disabled.  \n \n6.  All other issues are moot. \n \n7.  If not already paid, the respondents are ordered to pay for the cost of the \ntranscript forthwith.  \n \n We have carefully conducted a de novo review of the entire record herein \nand it is our opinion that the Administrative Law Judge's September 12, 2023 \ndecision is supported by a preponderance of the credible evidence, correctly \napplies the law, and should be affirmed.  Specifically, we find from a \npreponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by the Full \nCommission.  \n\n \nFERRIS - G500916  3\n  \n \n \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the Full \nCommission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":3167,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G500916 LAQUITA I. FERRIS, EMPLOYEE CLAIMANT BAXTER COUNTY REGIONAL HOSPITAL, INC., EMPLOYER RESPONDENT NO. 1 RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESP...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:29:45.384Z"},{"id":"alj-H104834-2024-06-20","awccNumber":"H104834","decisionDate":"2024-06-20","decisionYear":2024,"opinionType":"alj","claimantName":"Kelli Hellums","employerName":null,"title":"HELLUMS VS. AREA AGENCY ON AGING WESTERN ARKANSASAWCC# H104834June 20, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HELLUMS_KELLI_H104834_20240620.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HELLUMS_KELLI_H104834_20240620.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H104834 \n \n \nKELLI S. HELLUMS, EMPLOYEE   CLAIMANT \n \nAREA AGENCY ON AGING WESTERN ARKANSAS, EMPLOYER RESPONDENT \n \nRISK MANAGEMENT RESOURCES/.INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED JUNE 20, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas. \n \nRespondents are represented by MELISSA WOOD, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \nOn  March  15,  2024, respondents filed  a  Motion  to  Dismiss pursuant  to A.C.A.§11-9-702, \nalleging  that  it  had  been  more  than  six  months  since  claimant  filed  her  Form  AR-C  with  the \nCommission,  but  she  had  not  made  a  request  for  a  hearing during  that  time.    Respondents also \nrequested dismissal for failing to prosecute her claim pursuant to Commission Rule 099.13.   Claimant \nopposed the dismissal and a hearing on respondents’ motion was conducted on June 5, 2024.\n1\n \nA  review  of  the  chronology  of  events  in  this  matter  is  necessary  to  determine whether  the \nmotion should be granted.  On August 8, 2022, claimant filed Form AR-C, alleging a compensable \ninjury on August 6, 2020.   A request for a hearing and a prehearing questionnaire was filed by claimant \non November 29, 2022.  However, because the AR-C was filed two days after the two-year anniversary \n \n1\n Claimant was represented at the hearing by her counsel; she had a family emergency that required her to be out \nof state at the time of the hearing.  Her attorney did not intend to call her as a witness and asked that she be \nexcused, which I allowed. \n\nHellums-H104834 \n \n2 \n \nof the injury, respondents took the position that the matter was now barred by the statute of limitations \nand sought to have the matter dismissed as untimely.   \nThe parties submitted a stipulated record as to the facts. Guided by a previous opinion from \nthe Full Commission that applied Rule 6 of the Arkansas Rules of Civil Procedure to situations when \nthe statute of limitations expires on a weekend or a holiday,\n2\n  I determined that since August 6, 2022, \nwas a Saturday, the filing on August 8, 2022, was timely.  An order to that effect was entered on April \n6, 2023.  Respondent filed a timely appeal of that decision on May 4, 2023.  On February 14, 2024, \nthe Full Commission affirmed my ruling.  \nHaving reviewed the exhibits introduced at the present hearing, I find that this matter should \nnot  be  dismissed  under  either A.C.A.§11-9-702(a)(4) or Commission  Rule  099.13.  The  statute \nprovides: \n\"If, within six (6) months after the filing of a claim for compensation, no bona \nfide request for a hearing has been made with respect to the claim, the claim \nmay,  upon  motion  and  after  hearing,  be  dismissed  without  prejudice  to  the \nrefiling of the claim within limitation periods specified in subdivisions (a)(1)-\n(3) of this section.\" \n \nTo be sure, it was more than six months since claimant filed for her claim for initial benefits \n(August 8, 2022) and from her first request for a hearing (October 27, 2022) until respondents filed \nthe present Motion to Dismiss (March 15, 2024).  However, claimant was not able to proceed with \nher  claim  before  the  statute  of  limitations  defense  had  been  decided by  me,  and  then  affirmed  on \nappeal.     She  requested  a  hearing  on  April  15,  2024,  a  month  after  the  time  for  appealing  the Full \n \n2\n After that decision was rendered, administrative law judges were directed not to cite Full Commission opinions as \nprecedent.   \n\nHellums-H104834 \n \n3 \n \nCommission’s decision in her favor on the statute of limitations issue.\n3\n  As such, I find that her request \nfor a hearing is timely under the facts of this case.   \n Furthermore, I do not find that claimant’s inactivity in this matter before the AR-C was filed \ncan be counted against her under Commission Rule 099.13. which provides, in pertinent part: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed  for  want  of  prosecution,  the  Commission  may,  upon  reasonable \nnotice  to  the  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution.   \n \nThe  claim  was immediately accepted  as  compensable in  August  2020,  and claimant  was \nprovided medical benefits.  A joint petition was submitted to the Commission on June 14, 2021, but \nwas never finalized. As the statute of limitations was almost reached, a claim for benefits was finally \nfiled.  A plain reading of Rule 13 requires there be a claim for a dismissal to be entered; without a \nclaim, there is nothing to be dismissed.   I decline to find the time before the matter was filed should \nbe considered in determining whether there has been a “want of prosecution.”     \n Therefore, finding that nothing before the claim was filed is relevant to a determination \nthat claimant had failed to prosecute this matter, and that the delay since the claim was filed was due \nto litigation on the question of the application of the statute of limitations, it would be an improper \napplication of Commission Rule 13 and A.C.A.§11-9-702(a)(4), as well as an abuse of discretion, to \ndismiss this matter under this facts.  \n IT IS SO ORDERED. \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE \n \n3\n At the hearing on the present motion, claimant’s attorney pointed out that respondent had 30 days following the \ndecision of the Full Commission to the Arkansas Court of Appeals.","textLength":5834,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H104834 KELLI S. HELLUMS, EMPLOYEE CLAIMANT AREA AGENCY ON AGING WESTERN ARKANSAS, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES/.INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED JUNE 20, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort ...","outcome":"dismissed","outcomeKeywords":["affirmed:1","dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:53:00.952Z"},{"id":"alj-H204710-2024-06-20","awccNumber":"H204710","decisionDate":"2024-06-20","decisionYear":2024,"opinionType":"alj","claimantName":"Alice Lawrence","employerName":null,"title":"LAWRENCE VS. SEARCY COUNTY JUDGEAWCC# H204710June 20, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/LAWRENCE_ALICE_H204710_20240620.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LAWRENCE_ALICE_H204710_20240620.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H204710 \n \nALICE E. LAWRENCE, Employee                                                     CLAIMANT \n \nSEARCY COUNTY JUDGE, Employer            RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, Carrier                                              RESPONDENT \n \n \n OPINION FILED JUNE 20, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Harrison, Boone County, \nArkansas. \n \nClaimant represented by NEAL L. HART, Attorney, Little Rock, Arkansas. \n \nRespondents represented by JASON M. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On October 26, 2023, the above captioned claim came on for a hearing in Harrison, Arkansas.  \nAn Order following that hearing was entered on November 30, 2023, in which respondents’ motion \nfor an independent medical examination (IME) was granted, and the remaining issues in this matter \nwere held in suspense pending the results of that examination.  Rather than continually referring to \nthe previous order, the pertinent parts of it are reproduced in this order, including the summary of the \ntestimony and the exhibits; any references to the request for an IME are deleted.  \n  A pre-hearing conference was conducted on August 3, 2023, and a pre-hearing order was filed \non that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 \nand made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.  The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.  The employee/employer/carrier relationship existed on June 16, 2022. \n\nLawrence-H204710 \n2 \n \n            3.  The  compensation  rates  are  $413.00  for  temporary  total  disability  and  $310.00 for \npermanent partial disability.   \n Before testimony began at the hearing, the parties also announced two additional stipulations: \n 4.    An accident occurred on June 16, 2022, and respondents have accepted a left leg injury. \n 5.    Temporary total disability payments were paid through March 2, 2023, and there have \nbeen no temporary total disability payments since that date.  \n            At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Compensability regarding claimant’s back injury. \n            2.  If compensable, whether claimant is entitled to medical treatment. \n            3.  Whether claimant is entitled to temporary total disability benefits. \n            4.  Attorney’s fees. \n The parties requested that the third issue be modified to read “whether claimant is entitled to \nadditional temporary total disability benefits for a back injury, a leg injury, or both.”   \n All other issues are reserved by the parties. \n The claimant contends that “She suffered a compensable injury to her left lower extremity, \nlow back, and other body parts after she was run over by a garbage truck at work. The low back was \nand  is,  at  the  very  least,  an  aggravation  of  a  preexisting  condition, and is, therefore, respondents’ \ncontinued responsibility, for medical care purposes, payment of indemnity benefits, and for any and \nall other benefits related thereto and allowed by the Act. The workers’ compensation doctor is Justin \nCutler,  D.O.,  a  Harrison orthopedic surgeon. While respondents continue to pay for Dr. Cutler’s \nmedical care, they have denied at least two of his treatment recommendations, namely a C-brace for \nclaimant’s leg and a referral to pain management for left lower extremity pain. This  constitutes \nreasonable,  necessary,  and  related  medical  care,  and  respondents  should  be  required  to  provide  it. \n\nLawrence-H204710 \n3 \n \nClaimant continues to treat with Dr. Cutler at respondent’s expense; she remains in a healing period \nand in an “off work” capacity secondary to her various injuries; at least one of her injuries is scheduled; \nand she has not returned to work. She is, therefore, entitled to an award of additional temporary total \ndisability  benefits  from  the  date  last  paid  (approximately  May  10,  2023)  through  a  date  to  be \ndetermined. Claimant’s counsel is entitled to payment of a statutory attorney’s fee on all controverted \nindemnity benefits. Claimant respectfully reserves the right to amend and/or otherwise alter the above \ncontentions as discovery progresses. All other potential issues are expressly reserved for litigation at a \nlater date including, but not necessarily limited to, anatomical impairment, permanent total disability, \nwage-loss disability, vocational rehabilitation, Section 11-9-505(a) benefits, and any other additional \nbenefit allowed by law. This is a claim for additional compensation, and claimant renews her request \nfor  an  award  of  any  and  all  benefits to which she may be entitled, under the Arkansas Workers’ \nCompensation Act.” \n The respondents contend that “The claimant’s left lower extremity was accepted, and all \nappropriate benefits have been paid. The claimant’s back condition is preexisting  and  there  is  no \nobjective evidence to support a compensable injury to the lower back. The treatment suggested by \nDr. Cutler is for the back and symptoms related to the back. The claimant’s period of disability, if \nthere is one, is related to her back which is not compensable.” \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe her demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n\nLawrence-H204710 \n4 \n \n \n3, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact, as are \nthe stipulations announced at the beginning of the hearing. \n 2. Claimant has met her burden of proving that she suffered a compensable injury to her left \nleg and back on June 16, 2022. \n 3. Respondent is liable for payment of all reasonable and necessary medical treatment provided \nin connection with claimant's compensable injuries. \n 4. Claimant is entitled to temporary total disability benefits beginning March 3, 2023 until a \ndate to be determined.  \n 5. Respondent has controverted claimant's entitlement to all unpaid indemnity benefits. \nFACTUAL BACKGROUND \n As set forth above, the hearing on the motion by respondents for an IME and the claimant's \ncase in chief were combined. The parties were advised that if I determined that an IME was reasonable \nand necessary, no decision would be rendered on the other issues presented. If I decided that the IME \nwas not reasonable and necessary, then a decision on those issues would be rendered.  Neither party \nobjected to this manner of handling this matter.  The Order granting the request for the IME was \nentered on November 30, 2023.  \n Following the receipt of the IME report, I sent an email inquiry to the parties and requested \nbriefs on their respective positions in light of what the IME revealed, as well as what it did not cover. \nThose briefs were excellent and very much appreciated.  That post-hearing exchange is blue backed \nto the record in this case.   \nHEARING TESTIMONY \n \n Claimant was the only witness at the hearing. She gave a detailed vocational history, including \ndescribing  the  physical  requirements  of  the  jobs  that  she  had  worked  following  her  high  school \n\nLawrence-H204710 \n5 \n \n \ngraduation in 1996. She also described the requirements of the job that she was doing with respondent, \nSearcy County, prior  to  her  accident  on  June  16,  2022.  On  June  16,  2022, she  was  performing her \nnormal job of picking up trash. She had gotten out of the F-350 truck to shut the back doors of the \ncage that is built onto the truck. While she was out of the vehicle, another truck pulled behind the one \nthat  she  had  exited  and  honked  its  horn.  The  driver  of  the  vehicle  in  which  she  was  riding  pulled \nforward, hitting her and knocking her in front of the back tire. The wheel of the tire went up on her \nleft foot. Claimant tried to roll away from the vehicle. Claimant testified that she screamed, causing \nthe driver of the vehicle to stop. At that time, the wheel was on her lower back and then the driver \nbacked down her leg again. Because she was afraid that the driver might roll over her again, she got \nout of way of the wheels of the truck. Claimant said she could not put weight on her leg. Because of \nwhere the accident took place, claimant got into the truck and returned to the main road where a call \nwas made to 911 and an ambulance came to her location and aid was administered. Claimant was then \nflown to Springfield, Missouri where she was treated and released to see her family doctor; there were \nno broken bones in her leg.  \n After seeing her family physician, Dr. Jose Abiseid, she was referred to Dr. Justin Cutler, an \northopedist in Harrison, Arkansas. Claimant’s main issue at that point was still with her leg, and she \nwas treated conservatively with medication and physical therapy. Because it is thirty-six miles from \nher  home  to  the  physical  therapist,  claimant  has  not  been  receiving  physical  therapy,  but  has  been \ndoing her exercises at home. Dr. Cutler administered an injection to her back which helped with the \npain. Dr. Cutler also sent claimant for an MRI on her back. Claimant testified that Dr. Cutler wanted \nher to be seen by a pain management specialist and to have a C-brace to improve her walking; these \nhave been denied by the respondent. Dr. Cutler had not released claimant to return to work as of the \ndate of the hearing.  \n\nLawrence-H204710 \n6 \n \n \n Claimant saw Dr. Edward Saer after having been referred by Dr. Cutler. Dr. Saer has treated \nclaimant for her back injuries in the past. Claimant believed that he was not interested in seeing her \nfor her 2022 injury. \n When asked to describe her current symptoms, claimant said she still has swelling. She cannot \nfeel her leg from her knee down and has no control over it. She stated she has numbness up to her \nhip. She has shooting pains and muscle spasms in her back, but a large part of her leg is numb and \nwithout sensation. She uses her walker constantly. She believes her symptoms are getting worse over \ntime. Claimant said she gets relief when she lies down and doesn’t do much to aggravate her condition. \nThe problem with her leg gives her problems sleeping. Claimant admitted that she had had problems \nwith her left leg associated with her prior back problems, but the surgeries alleviated the leg problems. \nShe said the problems with her leg are different now because of the numbness. \n On  cross-examination,  claimant  admitted  that  she  had  degenerative  conditions in her  back \nwhich were diagnosed as early as 2007. Claimant stated that she had been fused on her pelvis up to \nL1 (but later corrected herself to say L-4 was the top of the fusion). \n When asked to relate the events of the injury, claimant said that the bed of the truck struck \nher and pushed her off balance, causing her to fall on her right side. Her left leg was closer to the tire, \nbut she testified that her body was facing the front of the truck, directly in front of the tires, and then \nclarified that it was a dual tire truck. In order to get away from the tires, she tried to roll under the \ntruck but was pinned and could not get away from it. Claimant testified that she had tire tread marks \non  her  back  where  the  driver  stopped.  Claimant  admitted  that  she  had  no  damage  to  her  organs, \nnothing was broken and had no ligament tear. \n While in Springfield, claimant said the emergency room personnel did not focus on her back \nbecause  she  told  them  her  problems  were  with  her  left  leg.  She recognized the  diagram  of  her \n\nLawrence-H204710 \n7 \n \n \ncomplaints and agreed that she told the trauma team “Patient reports her left leg was run over by a \ndump truck. Patient denies any other injury. Isolated left leg injury.” \n Claimant stated when she began seeing Dr. Cutler, he was treating her specifically for her left \nleg issues and believed that the problem with her left leg now is related to her back. The walker she \nwas using on the day of the hearing had been prescribed to her from her surgery in 2016 or 2017. \nWhen asked about Dr. Cutler’s narrative in which he reported that she “reports accident occurring on \nJune 16, where she ended up underneath a garbage truck. Truck ran up her left leg all the way up to \nher thigh. Backed off of it.” She said that narrative was wrong. She did not know why Dr. Cutler did \nnot note that she was using a walker on July 26, 2022, because she was. \n Claimant repeated that she did not like how Dr. Saer was acting during her visits with him but \nknew of no reason why he would not want to help her or had any animosity toward her. She disagreed \nwith Dr. Saer’s opinion that her continued symptoms did not relate to her back injury. Because Dr. \nCutler did not agree with Dr. Saer’s opinion, a third opinion regarding claimant’s back was requested \nby Dr. Cutler. \n On redirect-examination, claimant clarified that she had a fusion from S1-L4, not L1. She was \naware  that  Dr.  Cutler  reviewed  the  MRI  of  her  spine  and  believed  there  was  a  large  lateral  disc \nherniation at L5-S1.  \nREVIEW OF THE EXHIBITS \n \n Claimant submitted  medical  records  of her treatment after  the  June 16, 2022, injury, while \nrespondent submitted records that predated that injury, except for an MRI performed on July 7, 2022, \nand the emergency room records from Cox Health dated June 16, 2022.   \n Claimant began with conservative care for her leg injury with Dr. Cutler on July 19, 2022. She \ndid mention in that initial visit that she was having numbness and tingling with some sharp shooting \n\nLawrence-H204710 \n8 \n \n \npains in her left thigh and left lower extremity.  The emphasis on claimant’s treatment remained with \nher left leg until after Dr. Cutler ordered an MRI and an EMG, which were performed on September \n8, 2022.  Upon seeing the results, Dr. Cutler requested an MRI on her lumbar spine.   \n On October 3, 2022, an MRI was performed at North Arkansas Regional Medical Center.  \nThe impression was:  \n1. Indeterminate intermediate intensity signal material within the left lateral recess \nat  L5/S1  contacting  and  possibly  encasing  the  traversing  left  S1  nerve  root. \nUnable to exclude scar tissue given the prior surgery. Correlate with any left S1 \nradicular symptoms. \n2. Prior  decompression  and  interbody/posterior  fusions  at  L4/L5  and  an  L5/S1. \nMild  adjacent  segment  disease  at  L3/L4  with  grade  1  retrolisthesis  and  mild \nbulging of the disk.  No narrowing at L3/L4.  \n \n Because she had been previously treated by Dr. Saer for back issues—including performing \ntwo spinal surgeries—Dr. Cutler referred claimant to see him again.  She was examined by Dr. Saer \non October 25, 2022, who recorded in his assessment:  \n“She does not have a definite bony injury in her lumbar spine and there is no \ndefinite  nerve  root  compression.  She  certainly  could  have  an  injury  to  the \nperoneal  nerve  or  a  neuropraxia  to  the  femoral  nerve  or  perhaps  even  the \nlumbar  plexus.    I  do  not  see  anything  in  her  spine  now  that  looks  like  she \nneeds further treatment. Continuing therapy is probably her best bet.” \n \n Claimant returned to Dr. Cutler on November 9, 2022, and expressed her dissatisfaction with \nDr. Saer, reporting that Dr. Saer asked her repeatedly about an EMG when she had already told him \nthat she had one.  Dr. Cutler still believed that the EMG and MRI of the lumbar spine are consistent \nwith  new  herniations  from  her  injury.      He  suggested  a  second  spine evaluation  and  performed  an \ninjection into claimant’s left LI joint.   \n Instead of seeing a different neurosurgeon, the next record was another EMG ordered by Dr. \nSaer, this time performed at Ortho Arkansas in Little Rock on December 15, 2022.  The impressions \nfrom this test were:  \n\nLawrence-H204710 \n9 \n \n \n            1.    Abnormal electrodiagnostic study. \n2.  There is electrodiagnostic evidence suggestive of a non-localizable left peroneal \nneuropathy  with  no  focal  slowing  seen  at  the  fibular  head  and  no  active \ndenervation in any peroneal and elevated muscles tested.  In addition, there were \ninconsistencies  seen  between  functional  and  volitional  activity  throughout  the \nstudy  as  patient  seen  doing  activities  such  as  ambulating,  able  to  get  onto  exam \ntable on own accord, rotate on table, extend and flex legs, but volitional activity \nwas minimally seen.  \n3. There  is  no  electrodiagnostic  evidence  of  any  other  focal  nerve  entrapment, \ngeneralized peripheral neuropathy or left lumbar radiculopathy. \n4. Of  note,  EMG  is  not  a  completely  sensitive  study,  and  does  not  evaluate  small \nsensory  pain  fibers.  Thus,  lack  of  active  denervation  on  today's  study  does  not \nexclude  an  active  radiculopathy.  Clinical  correlation  is  needed  to  determine  the \nsignificance of today's electrodiagnostic examination findings. \n \n Dr. Saer reviewed the results of the EMG on December 16, 2022, and again reassured claimant \nthat he saw nothing for which she needed surgery. \n Claimant returned to Dr. Cutler on December 28, 2022; his notes from that date through his \nAugust 16, 2023, office visit repeatedly included a recommendation that claimant be seen by another \nspecialist.  That final visit concluded with the following impression/plan:  \n“Patient is status post being run over by a dump truck with complete loss of \nfunction in the left lower extremity. Is being reported from workers comp that \nshe  had  a  previous  low  back  injury  with  a  nerve  root  impingement.  This  is \nnothing like that type of injury. This is a completely additional ordeal. Patient \nhas no functional use of her left lower extremity. Patient requires substantial \namount  of  assistance  and  cannot  drive  or  even  ambulate  without significant \nhelp.  Patient  would  greatly  benefit  from  a  C brace  to  help  control  her  hip, \nknee, and ankle motions. This will allow her to have more independence with \nactivities of daily living. Even where patient did have a documented previous \nback injury for many years ago, this is an injury that has more than aggravated \nthose problems. In reality, this is a completely new injury causing severe nerve \nfunction dysfunction to her entire left lower extremity.” \n \n An independent medical examination was conducted on December 28, 2023, by Dr. Chelsea \nMatthews, an orthopedic surgeon at UAMS Health Orthopedic and Spine Clinic in North Little \nRock Arkansas.  Dr. Matthews recorded the following under the physical exam section of the report: \n \n\nLawrence-H204710 \n10 \n \n \nMusculoskeletal inspection: examination   of   the   left   lower   extremity \ndemonstrates some atrophy of the subcutaneous fat on the medial aspect of \nthe calf. There is no evidence of this laterally. When resting she maintains the \nfoot in an equinovarus position. There does appear to be some spasm in the \ntibialis anterior. I made a  full to passively reduce to neutral. She exhibits no \nvoluntary motor function in eversion or dorsiflexion.  2/5 in plantar flexion. \nShe  reports  diminished  sensation  throughout  the  entirety  of  the  lower \nextremity.  Does  not  follow  a  distinct  anatomic  distribution. When standing, \nher  foot  naturally  rests on  the  lateral  aspect  of  the  mid  and  forefoot.  When \nambulating this foot drags. The tibialis anterior tendon does appear to be firing \nwhen performing this. She is able to passively correct the foot and maintained \nits position on the ground, however when she lifts the foot it begins to drag \nunderneath her again. Regards to more proximal exam, she is able to perform \nquad extension 2+ out of 5.  \n \n Dr. Matthews ordered an MR enterography “in order to better assess the level of nerve \ninjury and determine if there is still pathology in this area. After the MR enterography I feel we will \nhave the best answer as to whether her foot drop and symptoms are related to the crush injury or to \nher spine pathology.”  \n Dr. Matthews saw claimant again on January 25, 2024 and reviewed the MR enterography of \nclaimant’s left lower extremity.   After reviewing this information with claimant, Dr. Matthews \nrecorded this plan:  \nThere is no radiographic evidence of damage to the nerve at the area of her \nleg crush injury. She does report to me today the vehicle ran over her leg as \nhigh  up  as  her thigh which was  unclear  to  me  prior  to  date  today's  visit. \nNonetheless,  I  do  not  see  any  evidence  of  peroneal  nerve  damage  or \ncompartment damage to the leg to explain her foot contracture and spasticity. \nThis  may  be  explained  by  a  double  hit  phenomenon  to  the  nerve  war \napproximately. This is outside my realm of expertise as a foot ankle orthopedic \nsurgeon.  If  she  would  like  a  more  clear  answer,  she  may  seek  independent \nexamination by someone who specializes in spine and hip pathology.  \nBased on her clinical examination, I do not feel she is capable of carrying out \nwork duties including working a truck. She would be unable to ambulate any \nlong distance over 10 feet. She will be unable to climb ladders, stairs, squat or \ncarry any weighted objects.  \n \n \n \n \n\nLawrence-H204710 \n11 \n \n \nADJUDICATION \n \nBoiled down to its simplest elements, the issue to be decided in this case is whether claimant \ncan prove by a preponderance of the evidence that her foot drop is a result of injuries received when \na truck ran over her left leg on June 16, 2022, during the course of her employment.  In order to prove \na  compensable  injury  as  the  result  of    a  specific  incident  that  is  identifiable  by  time  and  place  of \noccurrence, a claimant must establish by a preponderance of the evidence (1) an injury arising out of \nand in the course of employment; (2) the injury caused internal or external harm to the body which \nrequired medical services or resulted in disability or death; (3) medical evidence supported by objective \nfindings establishing an injury; and (4) the injury was caused by a specific incident identifiable by time \nand  place  of  occurrence. Odd  Jobs  and  More  v.  Reid,  2011  Ark.  App.  450,  384  S.W.  3d  630.  The \n\"preponderance of the evidence\" standard means the evidence having greater weight or convincing \nforce. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415.  \nThe parties stipulated that claimant met the criteria for a compensable injury as far as it related \nto the left leg injury. Thus, it was established there was a specific injury arising out of and in the course \nof  employment  which  caused  physical  harm  that  required  medical  services  and was  supported  by \nmedical  evidence,  and  respondents  accepted  the  claim  for  the  injury  to  the  left  leg.  However, \nrespondents deny that there is objective evidence of a back injury as a result of this incident, and thus \nhave controverted this claim as it relates to a back injury.  \nIn its posttrial brief, respondents took the position that “footdrop is not an objective finding \nbecause it can be controlled by the claimant.”  The Commission has cited reports from physicians that \nsuch a diagnosis is an objective finding (for example, see Copeland v. Ark. Dept. of Corrections  2019 AR \nWrk.  Comp.  LEXIS  33, White  v.  Lonnie  Crowell  Masonry,  Inc.  2017  AR  Wrk. Comp.  LEXIS  617  and \nWebber v. Scott Equipment, 2018 AR Wrk. Comp. LEXIS 54).  Further, while a perfectly healthy person \n\nLawrence-H204710 \n12 \n \n \nmight be able replicate some of the conditions observed by all the physicians that have seen her, Dr. \nCutler and Dr. Matthews noted objective findings following their examinations of claimant.  None of \nthese skilled physicians have suggested that claimant does not have an actual foot drop.  I am therefore \nsatisfied that the diagnosis of foot drop is an objective finding in this matter.  \nThe testimony  in  this  case  was  solely  that  of claimant,  and  I  found  her  to  be  credible. “A \nclaimant's  testimony  is  never  viewed  as  uncontroverted,  but  the  Commission  need  not  reject  the \nclaimant's testimony if it finds that testimony worthy of belief. Ringier America v. Combs, 41 Ark. App. \n47,  849  S.W.2d  1  (1993).  Respondents  pointed  out  that  claimant has  changed  her account  of  the \nevents during the injury, first saying to her physicians that the truck only ran over her calf or thigh, \nbut testified in deposition and at the hearing that it came up as high as her lower back.  While curious,  \nI do not find that to be as significant as respondents urge; whether the wheel that ran over her stopped \nat her calf, thigh or low back is of no significance to me in deciding this matter.    \nWhat  is  significant  is  that  claimant  was  working  without  restrictions  on  June  16,  2022,  and \nsince  she  was struck  by  the  truck,  has  not  been  able  to  work  since  that  date.    Dr.  Cutler  and  Dr. \nMatthews agree on that point; Dr. Saer did not offer an opinion as to her ability to work.\n1\n Further, \nwhile the IME by Dr. Matthews did not directly answer the question regarding a back injury presented \nin this case, she told us that claimant’s problem was either related to the crush injury or to her spine \npathology\n2\n--  then ruled out the leg injury as the source of claimant’s foot drop.  Eliminating the one \nnecessarily includes the other.  This is consistent with what Dr. Cutler has said—claimant’s foot drop \nis caused by an injury to her spine that was not present before the accident.  Therefore, I find claimant \n \n1\n While Dr. Saer did not specifically opine as to claimant’s ability to return to work, his report of December 15, 2022 \nincluded an “Oswestry Disability Index” score of 70, which indicates complete disability. It is not clear if this is based \non  objective  findings  or  subjective  reports  from  claimant. (This  was  not  included  in  my  opinion  of  November  30, \n2023, and is noted here rather than inserted into the previous review of the medical records.)  \n2\n See https://www.mayoclinic.org/diseases-conditions/foot-drop/symptoms-causes/syc-20372628, where there are \nthree groups of causes for foot drop, but only the first of these is relevant to claimant’s condition. \n\nLawrence-H204710 \n13 \n \n \nhas met her burden of proof that her current condition was caused by a back injury she suffered as \nthe result  of  a  specific injury  on  June  16,  2022.  As  such,  I  find  she  is  entitled  to  temporary  total \ndisability payments from March 3, 2023 to a date to be determined.  Claimant is entitled to medical \ncare as directed by Dr. Cutler, including referrals to specialists as he deems necessary to treat claimant’s \ncompensable back injury.  \nORDER \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nAll issues not addressed herein are expressly reserved under the Act. \n IT IS SO ORDERED. \n                                                                                            \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":28139,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204710 ALICE E. LAWRENCE, Employee CLAIMANT SEARCY COUNTY JUDGE, Employer RESPONDENT AAC RISK MANAGEMENT SERVICES, Carrier RESPONDENT OPINION FILED JUNE 20, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Harrison, Boone County, Arkansas. Cl...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["back","knee","hip","lumbar","ankle"],"fetchedAt":"2026-05-19T22:53:03.039Z"},{"id":"full_commission-H107908-2024-06-19","awccNumber":"H107908","decisionDate":"2024-06-19","decisionYear":2024,"opinionType":"full_commission","claimantName":"Jessie Ellis","employerName":"City Of Conway","title":"ELLIS VS. CITY OF CONWAY AWCC# H107908 JUNE 19, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Ellis_Jessie_H107908_20240619.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Ellis_Jessie_H107908_20240619.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H107908 \n \nJESSIE D. ELLIS, \nEMPLOYEE \n \nCLAIMANT \nCITY OF CONWAY,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS MUNICIPAL LEAGUE \nWORKERS’ COMPENSATION TRUST, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 19, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJanuary 2, 2024.  The administrative law judge found that the claimant \n“failed to establish a compensable closed head injury with medical evidence \nsupported by objective findings.”  After reviewing the entire record de novo, \nthe Full Commission reverses the administrative law judge’s opinion.  The \nFull Commission finds that the claimant proved he sustained a \ncompensable closed head injury.  We find that the claimant proved he was \nentitled to reasonably necessary medical treatment provided in connection \nwith the compensable injury.         \n\nELLIS - H107908  2\n  \n \n \nI.  HISTORY \n The record indicates that Jessie Ellis, now age 26, became \nemployed with the respondents, Conway Police Department, in December \n2019.  The parties stipulated that the employment relationship existed on \nJune 17, 2020.  The claimant testified on direct examination: \nQ.  Mr. Ellis, would you briefly explain to us how you got hurt \nworking for the Conway Police Department on June 16, 2020? \nA.  Yeah.  So it started off as a vehicle pursuit drill.  I was \nchasing a suspect, which was another officer, and we went \nthrough, right next to like a store in Conway, right around that \narea, and we proceeded then behind the St. Joseph High \nSchool, like we visited the high school.  And as we stopped \nthe suspect, the officer gets out of the car and starts running.  \nSo I’m giving chase and we’re running as hard as we can go, \nand as I catch up to him, I reached out to catch him, and you \nknow, I’m a big guy.  I’m 6’5”, I was 300 pounds at the time, \nand this officer is probably like 5’6” to 5’8”, and like 150 to \n180.  So I reached out to catch him and I overextend, and so I \nknow I’m going to fall so I let him go, because I didn’t want to \nfall on him, and that led to me hitting my head on the \nsidewalk. \nQ.  Now, when you say you hit your head on the sidewalk, \nsome of the medical records say that you hit your head on the \ncurb.  Did you hit on the sidewalk or on the curb? \nA.  I believe it was the curb.  Yeah, it was the curb.  I hit the \ncorner of my head on the curb of the sidewalk.   \nQ.  What material was that curb made out of? \nA.  I would say concrete.   \n \n The parties stipulated that the claimant “sustained a compensable \nwork-related injury abrasion to his head above the eye, and also his left \nknuckle, and left knee.”   \n\nELLIS - H107908  3\n  \n \n \n According to the record, the claimant received emergency treatment \non June 17, 2020: \nPatient fell while giving chase, landed on pavement, denies \nLOC or neck pain, has abrasion to left brow, abrasion and \nswelling to left hand, abrasion right lower leg.... \nPatient is a police officer; they were doing a pursuit drill \ntonight.  He was running, fell forward striking left hand, right \nleg and the left forehead on the ground.  Denies any loss of \nconsciousness.  Denies any neck pain.  States following was \nslightly sore, some nausea and did have emesis once on \narrival to the emergency room.  He reports his nausea has \nresolved following the emesis.  Denies any significant \nheadache.  No numbness or weakness.  No vision change. \n \n Dr. Robert M. Wycoff’s diagnosis on June 17, 2020 was “Mild closed \nhead injury, initial encounter.  Abrasion of left eyebrow, initial encounter.  \nAbrasion of left hand, initial encounter.  Abrasion of right lower extremity, \ninitial encounter.”   \n An EMT noted on June 20, 2020, “22 male c/o a lot of confusion after \na fall he had on Wednesday.  Pt states that he was seen here on \nWednesday.  Pt states that a few hours after leaving the hospital he started \nto have a dull headache.  Pt states that he worked a shift on Friday and was \nhaving a hard time concentrating and had some confusion throughout the \nshift.”     \n A CT of the claimant’s head was taken on June 20, 2020 with the \nimpression, “No acute intracranial findings.”   \n Dr. Gil E. Johnson examined the claimant on June 22, 2020: \n\nELLIS - H107908  4\n  \n \n \nJessie presents with closed head trauma.  He was injured \nwhen chasing a suspect on 6/16/20 close [to] the St. Joe \nschool here in Conway.  He fell when he lost his balance \nwhen he was apprehending the suspect and fell onto the \nconcrete striking his head – left side above the left eye on the \nfrontal and parietal skull.  He went to the emergency room \nfairly soon after the incident happened he was seen [and] \nreleased.  He was checked he states and then discharged.  \nAfter that he developed symptoms of a headache and \nfogginess and he went back to that same emergency room at \nBMC in Conway the next Saturday 6/20/20.  The event \nhappened on Tuesday 6/16/20.  The CT scan was done and \nhe was released.  He was given head trauma instructions he \nstates and discharge.... \nJessie is alert and oriented time person [and] place.  He has \nhad some recent memory issues since the accident \n[happened] he reports.  He appears to be in no acute distress \nat this time.  There’s a small abrasion and soft tissue swelling \njust above the laptop.  This is quite tender to touch.  I cannot \npalpitate crepitus.  Cranial nerve exam II – XII are intact.  \nFinger nose finger and [heel] knee shin test are within normal \nlimits.  There’s no sign of dysmetria and no tremor.... \nImpression:    \n1.  Closed head trauma with contusion to frontal/parietal skull. \n2.  Posttraumatic headache. \n3.  Nausea and vomiting, related to head trauma. \n4.  Slightly altered mental status related to head trauma, \ncurrently stable.   \n \n Dr. Johnson treated the claimant conservatively, and noted on June \n24, 2020, “Jessie returns for follow-up for head trauma.  He has improved \nfrom the initial visit.  He’s noticed that he is not as groggy and feels better \nalthough he still has some posttraumatic headache....If his condition [gets] \nworse before the recheck I’ve [advised] him to contact me immediately [or] \ngo to the emergency room.”  Dr. Johnson continued to provide follow-up \ntreatment and noted on July 7, 2020, “This was a fairly significant injury.”  \n\nELLIS - H107908  5\n  \n \n \nDr. Johnson reported on July 27, 2020, “He states that his headaches have \nreturned and he’s noticed a change in his memory....I discussed my \nfindings with the radiologist and an MRI is indicated.\"  An MRI of the \nclaimant’s brain was taken on July 30, 2020 with the impression, “Normal \nbrain.”   \n The claimant followed up with Dr. Johnson on July 31, 2020: \nThe MRI procedure was done on 7/30/20.  The results \nshowed no acute abnormality....Interpretation was normal \nbrain.... \nJessie has not reached maximum medical benefit and still is \nexperiencing symptoms most likely related to postconcussive \nsyndrome with posttraumatic headaches.  At this point \nevaluation by a neurologist would be helpful and I’m going to \ncontact the Workmen’s Comp. case manager and get \napproval for referral to a network specialist.... \n \n Dr. Barry D. Baskin evaluated the claimant on September 3, 2020: \nMr. Ellis is a 22-year-old gentleman from Conway who is a \npolice officer for the Conway City Police.  He fell and hit [his] \nleft forehead doing a pursuit training drill.  He reached out to \ngrab another officer by the collar to try to bring him down and \nfell.  He had a left eyebrow laceration that did not require any \nstaples or stitches.  He has had a CT of his head that was \nnormal.  He later saw Dr. Gil Johnson, several visits, and Dr. \nJohnson did an MRI of his brain on 7/30/2020 that was \nnegative.  He has seen Dr. Johnson seven visits.  He has a \nhistory of preexisting Bell’s palsy on the right that never \ncompletely resolved and he has had some mild residual ptosis \non the right.  He has been diagnosed with a questionable post \nconcussive syndrome.  He has been released to light duty and \ncurrently is doing computer work.  He has tried ibuprofen and \nover the counter medications without much benefit with his \nheadaches.  He states that his girlfriend has noted that he just \nseems to be a little foggy.  He states he is slow to respond to \nquestions.  He is fatigued....He states he has some emotional \n\nELLIS - H107908  6\n  \n \n \nlability and a short fuse and he is quick to anger.  He states \nthat was not the case prior.  His records have been reviewed.  \nDr. Gil Johnson’s records are reviewed as are emergency \nmedicine notes from his initial treatment.  CT of the head that \nwas normal.  Next, MRI of the head which was normal.  Mr. \nEllis has had no therapy....He has a small residual scar from \nwhen he had the laceration over his left lateral eyebrow.   \n \n Dr. Baskin referred the claimant to other physicians for additional \nevaluation and diagnostic testing.  Dr. Baskin also returned the claimant to \nrestricted work duty.   \n Dr. Baskin gave the following impression on October 6, 2020:  “Mr. \nEllis has had a mild closed head injury on 6/17/2020.  He has residual \nheadaches, memory loss and some blurring of his vision.  Speech therapy \nhas noted some loss of executive function and memory deficits.  I think he \nshould be seen by a neuropsychologist for formal neuropsych testing.  We \nare going to send him to Dr. Renee Mageira-Planey for a neuropsych \nassessment.  I reviewed his eye evaluation which was negative.  I will see \nhim back after his neuropsych assessment in about 4 weeks.”   \n Dr. Renee Magiera-Planey provided a Neuropsychological \nEvaluation on November 13, 2020 and diagnosed the following: \nMr. Ellis’s medical records, behavioral presentation and best \nresults meet the diagnostic criteria for an acquired Cognitive \ndisorder f09, mild.  Mr. Ellis displayed mild impairments in his \nprogressive language skills and mild impairments in his \ncomprehension.  He displayed mild impairments in his brief \nattention span and mild-to-moderate impairments in sustained \nand divided attention.  There were mild impairments in his \nimmediate visual short-term memory functions and mild \n\nELLIS - H107908  7\n  \n \n \nimpairments in his perceptual reasoning skills for visually \npresented information.   \nMr. Ellis also described changes in his mood and level of \npatience and tolerance after the accident.   \nAt this time, Mr. Ellis’s level of performance indicates he will \nhave difficulty returning to many of his previous duties as a \npolice officer.   \nMr. Ellis is receiving therapies at Baptist Health Rehabilitation \nInstitute to address the residual deficits in his cognitive and \nlanguage functions.   \nA review of those records indicates he is making progress.  It \nis recommended he continue with those therapies.   \nMr. Ellis may be an appropriate candidate for the use of a \nmood stabilizer to help with the reported anxiety and mood \nswings.... \n \n The claimant continued to follow up with Dr. Baskin, who stated in \npart on December 17, 2020, “I still feel that further neuropsych testing \nwould be of value in this case.  Mr. Ellis does not have any objective \nfindings with regards to imaging studies or neurologic pathology....Our plan \nis to pursue a neuropsych assessment with Dr. Zolten.”   \n An occupational therapist noted on January 7, 2021, “Jessie Ellis \ndemonstrated the fitness to operate a vehicle....Mr. Ellis is recommended \nfor approval by physician to resume driving independently.”   \n Dr. Jennifer I. Doyle summarized for Dr. Baskin on January 27, 2021, \n“A 22-year-old male with closed head injury in June of 2020 with \nheadaches, blurred vision and disorientation.  From an ocular standpoint I \ndo not see any permanent damage to the afferent pathway.  His exam is \ncompletely normal today, and I am hoping that with time his symptoms will \n\nELLIS - H107908  8\n  \n \n \nalso improve.  The only suggestion that I have would be to maybe try some \nsunglasses, discuss increasing his dose of Lexapro, complete the sleep \nstudy and see Dr. Zolten.” \n An EEG was done on February 24, 2021 with the impression, “This \nis a normal EEG.”   \n Dr. A.J. Zolten provided a Neuropsychological Evaluation on April 2, \n2021 and gave the following impressions: \n1.  Jessie Ellis is a 23-year-old male with recent history of a \nmild Traumatic Brain Injury (S06.2), with post-concussive \nsymptoms and complaints of neurocognitive deficits.  Current \ntest results were not entirely reliable, with evidence of both \ninconsistent effort, and over-reporting of psychological \nsymptoms.  In general, there are no overt deficits noted in \nJessie’s neurocognitive profile with the exception of poor \nvisual constructions skills and the related incidental visual \nmemory after the visual construction task.  Visual spatial \nrelations have improved when compared to the previous test \nresults as apparently have Jessie’s language skills.  To the \ndegree that Jessie still demonstrates some problems with \nvisual construction, this may reflect some very mild residual \nneurocognitive deficit, but the lack of reliability obscures this.  \nIf present, this mild weakness does not interfere with Jessie’s \noverall adaptive functioning.   \n2.  Jessie’s inconsistent effort is most likely a function of \npsychological overlay.... \n3.  Much more troubling is the clear presence of Post \nTraumatic Stress Disorder, with symptoms of de-\nrealization/de-personalization as part of this clinical picture.  \nThese symptoms are a serious variant of interpersonal \nnumbness often seen with PTSD patients, and indicate a \nloosening or strain on reality testing.  Jessie is in clear need of \ncounseling to help him cope with his PTSD symptoms.  He \ncan be referred to Chenal Family Therapy, which has a \nConway office[.]   \n\nELLIS - H107908  9\n  \n \n \n4.  Jessie’s MMPI-2 results are certainly problematic from the \nstandpoint of his return to full duty as a police officer.  As a \ncurrent picture of psychological functioning, Jessie’s results \nare much too unstable for return to active duty with a side \narm.  I would recommend that he undergo a full course of \nPTSD therapy, and if this is successful in quelling his \nsymptoms, he be re-evaluated for fitness.   \n \n The claimant began treating with Tobi Taylor, LPC on or about May \n10, 2021.  Ms.Taylor noted that the claimant’s treatment plan included \n“cognitive behavioral therapy, mindfulness/meditation, and EMDR to \naddress anxiety, depression, and possible PTSD.”       \nDr. Baskin provided an Impairment Rating on September 14, 2021 \nand reported in part: \nMr. Ellis initially was seen by me 9/3/2020 on referral from Dr. \nJohnson and Stacy Mathis, RN for closed head injury.  He fell \non the job working on pursuit training and hit his head on a \nconcrete curb.  He had residual memory loss, blurred vision, \nirritability, anger, fatigue and generalized weakness.... \nMy overall impression at this point 9/14/2021 is that Mr. Ellis \ndid in fact sustain a closed head injury and to some extent a \ntraumatic brain injury without any significant bleeding or skull \nfracture or objective findings on his CT of the head or MRI of \nthe head.  He clearly has symptoms of PTSD versus \nadjustment disorder.  He is not able to go back to work as a \npolice officer.  All parties involved in his care are in agreement \non that.  I had suggested that we have him see a psychiatrist \nand referred him to Mary Paal for help with medication \nmanagement but Workers’ Comp would not approve that.  He \nstill has intrusive thoughts and dreams and is sleeping poorly \nand tired during the day.   \nUsing the AMA Guides to the Evaluation of Permanent \nImpairment 4\nth\n Edition and turning to the chapter on the \nnervous system on page 142 and reviewing table 2 mental \nstatus impairments and table 3 emotional and behavioral \nimpairments, Jessie presents with mild limitation of some but \n\nELLIS - H107908  10\n  \n \n \nnot all social and interpersonal daily functioning....He would \nhave a 14% whole person impairment which is mild limitation \nof some but not all social and interpersonal daily living \nfunctions....I think he still needs follow up with Tobi Taylor and \nI would recommend continued counseling sessions with her \nfor now.  He needs to see me about every 3-4 months for now \nbut eventually I will probably see him only once or twice a \nyear.  I am hoping that he will continue to improve.  He seems \nfairly dejected about the fact that he is still dealing with issues \nof his head injury....He will still be covered through Workers’ \nComp I hope for his counseling and his visits back to see \nme....He still may need medical management as far as his \ndepression and anxiety medicines and his sleep medicine.... \n \n The respondents terminated the claimant’s employment effective \nSeptember 29, 2021. \n Dr. Baskin corresponded with counsel for the respondents on \nFebruary 5, 2022:   \nI am in receipt of a letter from you dated January 27, 2022 \nrequesting information on Mr. Ellis. \nI have gone back through my records in order the answer the \nquestions you proposed.  First of all, this is a complicated \ncase.  Mr. Ellis sustained a closed head injury on the job as a \nrookie Conway Police Department Officer on June 17, 2020.  \nHe had a closed head injury without any significant \nhemorrhages, skull fracture, or significant objective findings \non his imaging studies.  He was referred to me by Stacy \nMathis, RN, case manager with JMS Consulting, and Dr. Gil \nJohnson, a primary care physician in Conway, on September \n3, 2020.  From the first time I saw Mr. Ellis, I had concerns \nthat he was a bit addled.  He seemed a bit confused and \nunable to think clearly.  I sent him to Michelle Cox, a speech \nand language pathologist at Baptist Health Rehabilitation \nInstitution, for a speech and language evaluation and \ncognitive assessment for problem solving, memory, and \nexecutive function.  Ms. Cox felt like that he had moderate \ncognitive deficits.  I spoke with Ms. Cox about Mr. Ellis in the \nlast 3 days prior to dictating this note to you and reviewed his \n\nELLIS - H107908  11\n  \n \n \ncase, and she feels strongly that he was impaired from his \nclosed head injury.  I referred him to Renee Magiera-Planey, \nPhD, neuropsychologist at Baptist Health Rehabilitation for \nfurther evaluation.  This report was done back in November \n2020.  Dr. Magiera-Planey felt that Mr. Ellis’ diagnosis was \nconsistent with an acquired cognitive disorder that was mild.... \nMr. Ellis remains, as of my last appointment, a little better than \nwhen I first saw him.... \nAs you know, surveillance was undertaken.  I did not really \nrecommend that this be done, but it was suggested through \nWorker’s Compensation, and I approved it.  It did not prove \nanything one way or the other with regards to Mr. Ellis’ \ncondition.   \nIn your letter you have addressed several concerns, and I will \ntry to respond to them at this point.  First, you have addressed \nthat he saw a psychological counselor, Tobi Taylor, in \nConway.  You noted that she cannot state with reasonable \ncertainty whether Mr. Ellis’ diagnosis stems specifically from \nhis accident.  It is noted in his history that he had a step-father \nwho was abusive to Jessie’s mother.  It is clearly speculation \nthat that has anything to do with his current symptoms.  More \nimportantly, it should be noted that Mr. Ellis was never \nreported to have had any problems with memory, problem \nsolving, visuoperceptual deficit, visual problems, driving, etc. \nprior to his date of injury.  I think it is clearly more likely than \nnot that his symptoms stem from his work injury and not from \nsome obscure pre-existing condition growing up.  Dr. Zolten \nfelt like that Mr. Ellis may have gone back to work too soon \nand been threatened by that and developed PTSD symptoms.  \nThe onset of these symptoms, in my opinion, are related to his \nwork injury.   \nYou noted in your letter that his neuro exam was normal.  \nThat is not uncommon with a patient with a traumatic brain \ninjury, postconcussion syndrome, or disorders of \nconsciousness (DOI).  You further indicated his neurologist \nindicated his exam was completely normal and an EEG \nindicated no evidence of seizures or any clearcut \nabnormalities.  We did have him see a neurologist and an \nEEG was done and it was negative for evidence of seizure \ndisorder.... \nYou questioned what objective findings I relied upon in regard \nto his diagnosis of traumatic brain injury or closed head injury.  \n\nELLIS - H107908  12\n  \n \n \nMr. Ellis had a definable work injury in which he hit his head.  \nHe was running and fell and hit his head on the concrete curb.  \nHe was dazed from that.  He has continued to be somewhat \ndazed and mildly confused over the last year and a half, \nalthough he has clearly improved.... \nI believe based on my extensive amount of time with Mr. Ellis \nin the office face-to-face that this gentleman sustained a mild \nclosed head injury with residual cognitive deficits and \nemotional and behavioral deficits.  Based upon my evaluation \nof Mr. Ellis over the last year as well as my training \nexperience, I feel like I have given him a fairly minimal \nimpairment rating using table 3 on page 142 of the AMA \nGuides to the Evaluation of Permanent Impairment 4\nth\n Edition.  \nThis is mild limitation of daily social and interpersonal \nfunctioning.  That rating scale goes from 0% to 14% on the \nmild rating.  I rated him at 9%.   \nYou have further mentioned that I recommend ongoing \ncounseling in addition to additional prescription medication for \nMr. Ellis.  I have felt that Mr. Ellis would benefit from \nprescription medications for his depression and anxiety.  I \nhave also felt that counseling was necessary for his PTSD.  In \nparticular, I felt that he needed cognitive behavioral therapy \n(CBT) or EMDR, which is an eye movement desensitization \ntype therapy for PTSD.  Both of these are currently in vogue \nand are useful for patients with PTSD.  I have not set a stop \ndate on Mr. Ellis’ therapy.  If we can get him in for therapy for \nanother few months I would be pleased.  I believe I have an \nappointment to see Mr. Ellis back in follow-up on March 16, \n2022.  Depending on how he is doing then, we may be able to \ndiscontinue further therapies.... \n \n The claimant’s attorney examined Dr. Baskin during a deposition \ntaken March 9, 2022: \nQ.  Now, there’s some terms that are used throughout the \nmedical records, and I’d like for you to kind of clarify them for \nme if you can.  It talks about closed head injuries, it talks \nabout TBI, traumatic brain injury, and it talks about \nconcussion.  What’s the difference between those three \nthings, or is there a difference between those three things? \n\nELLIS - H107908  13\n  \n \n \nA.  Well, a closed head injury is when somebody’s had trauma \nto their head, usually blunt trauma.  It’s not penetrating \ntrauma, and they have a – they don’t have – you don’t have – \nwith a closed head injury, you don’t have to have loss of \nconsciousness.  You could.  But a closed head injury could be \nme going to sleep and hitting my head on the table and having \nsome pain or headaches or maybe dizziness after that.  A \ntraumatic brain injury is when you have had trauma to the \nhead, and you have findings on the imaging studies where \nyou might see a skull fracture again or a subdural or epidural \nbleed, things like that inside the skull, intracranial pathology.  \nAnd then now they use another term, “disorders of \nconsciousness,” frequently to address people that have had a \nclosed head injury and/or a traumatic brain injury.  It’s all kind \nof – it’s all just terminology for the most part, but a closed \nhead injury is essentially not as bad, typically, as somebody \nwho’s had a traumatic brain injury as far as the findings.   \nQ.  And what about a concussion? \nA.  A concussion would – is essentially when people have had \na blow to their head.  They may have some alteration of their \nlevel of consciousness, they may be knocked out, and they – \ntheir mental status is altered in some way.  Those can be \nrepetitive trauma, like the football players, the, you know, the \nrepetitive head injuries.  People have been hit and hit and hit, \nand they began to have post-concussion syndrome, but in this \ncase, I think he fell – it looked – it sounded like he fell, hit his \nhead, and had a closed head injury without any positive \nfindings on his imaging studies.... \nQ.  What are some of the symptoms that are commonly \nassociated with a closed head injury? \nA.  Well, it – there’s lots of them.  I mean, a closed head injury \ncould cause somebody to have – commonly, we see people \nthat have headaches.  They have – they’ve had a head injury.  \nI see lots of people that have been hurt with a blow to their \nhead, and they have headaches.  Sometimes they do have, \noccasionally, blurred vision.  They have – sometimes they \nhave memory loss.  Sometimes they have loss of \nconcentration, focus, inability to do things that they could do \nbefore any difficulty, having trouble with those now.  Those \nare some of the more common things I see with people that \nhave had a closed head injury.... \n \n\nELLIS - H107908  14\n  \n \n \n On January 25, 2023, the claimant began treating at HonorHealth in \nPeoria, Arizona.  The assessment at that time included “Closed traumatic \nbrain injury, with loss of consciousness of 30 minutes or less, sequela.”   \nA pre-hearing order was filed on April 18, 2023.  The claimant \ncontended, “a.  The Claimant contends that as the result of the \ncompensable trauma to his head he is entitled to additional medical \ntreatment.  b.  The Claimant contends that his authorized treating physician, \nDr. Barry Baskins (sic), recommended additional professional counseling \nand a psychiatric evaluation for the claimant and both of those \nrecommendations have been rejected by the respondents.  c.  The claimant \ncontends that he has sustained some degree of permanent injury regarding \nhis job related accident; however, assessment of the extent of that \npermanent injury is premature and he therefore reserves that issue for \nfuture determination after the recommended medical treatment has been \nconcluded.” \n The respondents contended, “Respondents contend that there are \nno objective findings to support permanent impairment associated with the \nclaimant’s 6/17/20 injury.  Respondents assert that the work-related injury is \nnot the major cause of any permanency the claimant has.  Respondents \nfurther contend that Claimant is at maximum medical improvement and that \nadditional medical and/or psychological treatment is not reasonable and \n\nELLIS - H107908  15\n  \n \n \nnecessary.  Respondents contend that without the permanent impairment, \nwage loss disability is not applicable.  Lastly, Respondents contend they \nare entitled to a credit for overpayment of PPD in the amount of $3,208.00.”   \n The parties agreed to litigate the following issues: \n1.  The claimant’s entitlement to an assessment by a \nvocational rehabilitation professional in order to determine an \nappropriate program of vocational training. \n2.  The claimant’s entitlement to additional medical treatment. \n3.  Compensability of a brain injury.   \n4.  All other issues are reserved.   \n \n Dr. Harpreet Kaur Sandhu examined the claimant at HonorHealth \nNeurology on May 31, 2023: \nPatient has a past history of a head injury associated with \nwork in 2020.  Patient has 260+ pages of records which have \nbeen reviewed.  Patient had a worker’s compensation case in \nregards to this and has undergone extensive workup including \nhead CT, MRI of the brain, EEG and neuropsychological \nevaluation.  Patient’s neuropsychological assessment had \nfindings of an acquired cognitive disorder.  There [were] also \nsome concerns for possible PTSD.  Patient has recently been \nseen by behavioral health and has a history of generalized \nanxiety disorder.... \n25-year-old male past medical history of a head injury in 2020 \nwith a reported history of postconcussion syndrome presents \nto establish care.  Patient has undergone extensive \nneurological workup including a Neuro-Ophthalmology \nevaluation which was reported to be within normal limits.  \nPatient’s neurological workup has been nondiagnostic and \npatient’s chief complaint continues to be his behavioral and \npsychological issues.  Discussed the importance of \nestablishing with behavioral health including Psychology and \nPsychiatry to help with both cognitive therapy and/or \nmedication.  Discussed the option of a repeat \nneuropsychological assessment and patient would like to \ncontinue with repeat testing.  Discussed the importance of \n\nELLIS - H107908  16\n  \n \n \ncontinuing with a healthy diet and exercise regimen, working \non modifiable comorbidities, adequate sleep as well as stress \nmanagement.   \n \n Dr. Sandhu instructed the claimant to “Return after neuropsych \ntesting.”   \n Dr. Danny Rosenbaum, a clinical neuropsychologist, evaluated the \nclaimant on July 21, 2023 and recommended the following: \n1).  Should the patient choose to continue in rehab, cognitive \nretraining activities such as computer and board games \ntargeting processing speed and attention may help the patient \nin those areas of need. \n2).  Given the patient’s admitted significant negative mood, \npsychotherapeutic intervention is recommended. \n3).  Further, monitoring the patient’s psychotropic medication \nis suggested especially since it is a relatively new prescription. \n4).  The patient stated that he has recently suffered from Bell’s \nPalsy with noted hand weakness.  A follow up with a \nneurologist [may] prove beneficial.   \n \n A hearing was held on September 26, 2023.  At that time, the \nclaimant contended that he sustained a closed head injury, and that he was \nentitled to reasonably necessary medical treatment.  All other issues were \nreserved.     \n An administrative law judge filed an opinion on January 2, 2024.  The \nadministrative law judge found, among other things, that the claimant “failed \nto establish a compensable closed head injury.”  The administrative law \njudge found that the claimant was “not entitled to additional medical and \nattorney fees at this time.”  The claimant appeals to the Full Commission. \n\nELLIS - H107908  17\n  \n \n \nII.  ADJUDICATION \n A.  Compensability \nArk. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.]   \n \n A compensable injury must be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n An administrative law judge found in the present matter, “3.  That the \nclaimant has failed to establish a compensable closed head injury with \nmedical evidence supported by objective findings.”  In workers’ \ncompensation cases, the Commission functions as the trier of fact.  Blevins \n\nELLIS - H107908  18\n  \n \n \nv. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988).  The \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony it deems worthy of belief.  Farmers Co-op v. Biles, \n77 Ark. App. 1, 69 S.W.3d 899 (2002).  The Full Commission finds in the \npresent matter that that the claimant was a credible witness, and that the \nclaimant proved by a preponderance of the evidence that he sustained a \ncompensable closed head injury.   \n The claimant became employed as a probationary Patrolman for the \nrespondents in December 2019.  The parties stipulated that the \nemployment relationship existed on June 17, 2020.  The claimant \ncontended that he sustained an accidental injury while performing a training \nexercise with the respondent-employer on June 16, 2020.  The claimant \ntestified that, while giving chase to another officer, he fell and struck his \nhead on a concrete curb.  The parties stipulated that the claimant \n“sustained a compensable work-related injury abrasion to his head above \nthe eye, and also his left knuckle, and left knee.”   \n The evidence demonstrates that the claimant sustained a \ncompensable closed head injury on or about June 16, 2020 as a result of \nthe accidental fall.  The medical records corroborated the claimant’s \ntestimony that he fell and struck his head.  Dr. Wycoff examined the \n\nELLIS - H107908  19\n  \n \n \nclaimant on June 17, 2020 and diagnosed “Mild closed head injury, initial \nencounter.”  Dr. Johnson noted on June 22, 2020, “Jessie presents with \nclosed head trauma.”  Dr. Johnson examined the claimant’s forehead and \nnoted “a small abrasion and soft tissue swelling[.]”  Swelling can be an \nobjective medical finding establishing a compensable injury.  White Cnty. \nMed. Ctr. v. Johnson, 2022 Ark. App. 262, 646 S.W.3d 245.  Dr. Johnson’s \nimpression included “1.  Closed head trauma with contusion to \nfrontal/parietal skull.”  The Full Commission finds that Dr. Johnson’s \nimpression of closed head trauma was supported by objective medical \nfindings, namely “soft tissue swelling” in the claimant’s forehead.  Dr. \nJohnson noted on July 7, 2020, “This was a fairly significant injury.”   \n Dr. Baskin began treating the claimant on September 3, 2020 and \nsubsequently gave the impression, “Mr. Ellis has had a mild closed head \ninjury on 6/17/2020.  He has residual headaches, memory loss and some \nblurring of his vision.”  The claimant thereafter treated with Dr. Magiera-\nPlaney and Dr. Zolten.  Dr. Doyle’s impression on January 27, 2021 was “A \n22-year-old male with closed head injury in June of 2020 with headaches, \nblurred vision and disorientation.”  Dr. Baskin informed counsel for the \nrespondents on February 5, 2022, “I believe based on my extensive amount \nof time with Mr. Ellis in the office face-to-face that this gentleman sustained \na mild closed head injury with residual cognitive deficits and emotional and \n\nELLIS - H107908  20\n  \n \n \nbehavioral deficits.”  During a a deposition taken March 9, 2022, Dr. Baskin \nexpertly testified with regard to the distinction between a “closed head \ninjury” and “traumatic brain injury.”   It is within the Commission’s province \nto weigh all of the medical evidence and to determine what is most credible.  \nMinnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In \nthe present matter, the Full Commission finds that Dr. Baskin’s opinion is \nsupported by the record and is entitled to significant evidentiary weight.  Dr. \nBaskin’s diagnosis of a closed head injury was supported by Dr. Wycoff, Dr. \nJohnson, Dr. Doyle, and Dr. Sandhu. \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a “compensable injury” in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012).  The \nclaimant proved that he sustained an accidental injury causing physical \nharm to the body, viz., a “closed head injury.”  The claimant proved that the \ninjury arose out of and in the course of employment and required medical \nservices.  The injury was caused by a specific incident and was identifiable \nby time and place of occurrence on or about June 16, 2020.  In addition, the \nclaimant established a compensable injury by medical evidence supported \nby objective findings, namely Dr. Johnson’s report of “soft tissue swelling” in \nthe claimant’s forehead.  We find that this objective finding was causally \n\nELLIS - H107908  21\n  \n \n \nrelated to the compensable injury and was not the result of a prior injury or \npre-existing condition.              \n B.  Medical Treatment \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  What \nconstitutes reasonably necessary medical treatment is a question of fact for \nthe Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 \nS.W.2d 750 (1984).   \n In the present matter, the Full Commission has found that the \nclaimant proved he sustained a compensable closed head injury on or \nabout June 16, 2020.  We find that the claimant proved by a preponderance \nof the evidence that the medical treatment of record thereafter was \nreasonably necessary in connection with the compensable injury.  Dr. \nBaskin assigned a 14% permanent impairment rating on September 14, \n2021.  Permanent impairment is any functional or anatomical loss \nremaining after the healing period has been reached.  Johnson v. Gen. \nDynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994).  We therefore find \n\nELLIS - H107908  22\n  \n \n \nthat the claimant reached the end of his healing period for the compensable \ninjury no later than September 14, 2021.  Nevertheless, it is well-settled that \na claimant may be entitled to ongoing medical treatment after the healing \nperiod has ended, if said treatment is geared toward management of the \ncompensable injury.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, \n184 S.W.3d 31 (2004).     \n The Full Commission finds that the treatment of record provided \nfollowing Dr. Baskin’s assessment of permanent anatomical impairment \nwas reasonably necessary in connection with the compensable injury.  We \nfind that the current treatment recommendations of Dr. Sandhu, which \ninclude additional neuropsychological testing, are reasonably necessary. \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved by a preponderance of the evidence that he \nsustained a compensable closed head injury.  The Full Commission finds \nthat the medical treatment of record provided on and after June 17, 2020 \nwas reasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  The claimant proved that Dr. Sandhu’s current \ntreatment recommendations are reasonably necessary in connection with \nthe compensable injury.  For prevailing on appeal to the Full Commission, \nthe claimant’s attorney is entitled to a fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \n\nELLIS - H107908  23\n  \n \n \n  IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved by a preponderance of the evidence that he sustained a \ncompensable closed head injury on or about June 16, 2020, and is entitled \nto medical treatment for said injury. \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\" Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16).  \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  The Commission is not required to believe the \n\nELLIS - H107908  24\n  \n \n \ntestimony of the claimant or any other witness but may accept and translate \ninto findings of fact only those portions of the testimony that it deems worthy \nof belief.  White v. Gregg Agricultural Enterprises, 72 Ark. App. 309, 37 \nS.W.3d 649 (2001). \nTo date, there have been no objective findings that claimant suffered \na closed head brain injury on June 17, 2020, despite numerous evaluations \nand diagnostic testing including a head CT scan on June 20, 2020, a brain \nMRI on July 30, 2020, and an EEG on February 24, 2021.  (Resp. Ex. 1, \nPp. 1-9).  None of these tests or any in-person examinations revealed any \nobjective findings of a traumatic brain injury. \nDr. Barry Baskin, the claimant’s primary treating physician on this \nissue, testified unequivocally at his March 9, 2022 deposition that there \nwere no objective findings on the claimant’s diagnostic studies to prove a \nclosed injury and that his in-person examinations were unimpressive.  In \nfact, Dr. Baskin testified he could not identify any objective evidence \nsupporting the existence of a brain injury or the existence of a mental or \npsychological or emotional disorder.  (Depo. of Dr. Barry Baskin, Pp. 8, 10, \n13, 35, 53-54).  Dr. Baskin opined that there was no objective basis to \nexplain the alleged  complaints, fears, and phobias the claimant developed \nafter his injury, explaining that the claimant had a negative work-up and: \ndidn’t really have any significant \nobjective findings, and his exam \n\nELLIS - H107908  25\n  \n \n \nwas not really particularly \nimpressive either.  I mean, he had \n– I guess he was – his ability to \ngive a history and stay on track \nwas – he was kind of all over the \nplace, and – but again, his neuro \nexam was normal.  He had a \nnormal gait; he had normal \nmovements, and I just felt like we – \nthat based on what I saw, which \nagain, there weren’t a lot of hard \nobjective findings. \n \n(Id. at Pp. 8, 43-44). \n \nWhen asked directly, Dr. Baskin testified that there are, “[n]one – not \nany measurable objective findings” of a traumatic brain or closed-head \ninjury.  (Id. at P. 35). \nThe claimant underwent a battery of neuropsychological tests by Dr. \nA.J. Zolten on April 2, 2021.  (Resp. Ex. 1, Pp. 10-14).  These tests \nrevealed normal to above average cognition and no evidence of \nneurocognitive deficit.  Dr. Zolten noted the claimant’s symptom reporting \nindicated clear over-reporting of symptoms, both psychological and \nsomatic.  There was evidence of inconsistent effort and over-reporting of \npsychological symptoms.  Id.   \nDr. Baskin testified that it was hard for him to know how much of the \nclaimant’s problems were pre-morbid as opposed to post-traumatic.  (Depo. \nof Dr. Barry Baskin, Pp. 44-45) \nAt his deposition, Dr. Baskin had the following exchange: \n\nELLIS - H107908  26\n  \n \n \nQ: (by Mr. Parrish) If someone \ntruly had a traumatic brain \ninjury or closed head injury, \nwould you expect them to \nhave no evidence of any \ndamage to their brain \nacross the spectrum of all \nthose tests and \nexaminations? \n \nA: It would be unusual to have \nsomebody have all those \ntests and evaluations and \nnot have any positive \nobjective findings. Again, I \nhave seen people that had \nno findings on scans, and \nthey were clearly - had had \na head injury and had \nalteration of their level of \nconsciousness, but more \ntimes than not, I would say \nsome of those would be \npositive. You would expect, \nmore times than not, some \nof those things to be \npositive than for all of them \nto be negative.  \n \n(Id. at Pp. 45-46). \n \nIn short, Dr. Baskin could not state within a reasonable degree of \nmedical certainty that there was movement of the claimant’s brain at the \ntime of his fall, that the claimant sustained bruising to his brain, or that the \nclaimant’s emotional or behavioral complaints were related to the accident. \n(Id. at Pp. 60-63). \n\nELLIS - H107908  27\n  \n \n \nAs further evidence of the claimant’s exaggeration or manipulation of \nhis injuries, the sole indication that the claimant may be suffering from an \nongoing “adjustment disorder with mixed anxiety and depressed mood,” \ncomes from the opinion of LPC (Licensed Professional Counselor) Tobi \nTaylor, who was deposed on April 4, 2023.  (see Depo. of Tobi Taylor).  \nThe claimant’s diagnosis of adjustment disorder with mixed anxiety and \ndepressed mood by Tobi Taylor was based entirely on the claimant’s own \nreporting of symptoms.  \nWhen asked if the claimant could manipulate his treatment, Ms. \nTaylor responded, “I mean I guess everything could be manipulated.” \n(Depo. of Tobi Taylor, Pp. 11).  Ms. Taylor testified that she treats a lot of \ntrauma induced conditions, but when asked if there were any type of validity \nprocessing to measure whether somebody is just making this stuff up, she \nresponded that the client was the only source of information for her.  (Id. at \nPp.12-13).  She also stated that she had reviewed some psychological \ntesting on the claimant, and that testing would include validity checks, “[b]ut \nif somebody was telling me, ‘I’m having these symptoms,’ I don’t have a \nway to refute that they’re having those symptoms.”  (Id. at P.14).  \nMs. Taylor went on to testify, the physical manifestations that are \ntypically associated with closed head injuries, again, would be outside of \nher scope.  (Id. at P.16).  Specifically, Ms. Taylor stated she could not give \n\nELLIS - H107908  28\n  \n \n \nan opinion as to whether the fall in question was the triggering event of the \nissues in which she was treating the claimant. She testified she was treating \nwhat -- how [a symptom] shows up in his daily life, “because I am not the \nmedical doctor.”  (Id. at Pp. 17,18).  \nUnder questioning by the respondent’s attorney, Ms. Taylor testified \nthat she was not providing an opinion the claimant had suffered a traumatic \nbrain injury, “because I am not qualified to do so.”  (Id. at P.34).  She further \nstated that her opinions and treatment model for the claimant were based \non the subjective reporting the claimant decided to share with her.  (Id. at \nPp. 50, 51).  She also had no evidence to rebut the statement by Dr. Zolten \nthat the claimant had no cognitive deficits, stating, “I don’t test for a \ncognitive deficit, nor am I qualified to do so.”  She admitted her opinions \nand diagnoses were not based on objective findings, and she does not do \nany testing on her own.  (Id. at Pp. 53-54).  \nThe following exchange is illustrative of Ms. Taylor’s limitations:  \nQ: (by Mr. Parrish) Okay.  This \nadjustment disorder with \ndepression, anxiety, panic \nattacks, you are not \nproviding an opinion that \nthis is causally related to \nhim tripping and falling, with \na reasonable degree of \ncertainty, are you? \n \nA: I can only respond to what \nhe -- the information that he \n\nELLIS - H107908  29\n  \n \n \ngave me and the \ninformation that I have in his \nrecord.  \n \nQ: Okay.  \n \nA: And can say that the time of \nthe intake he met the \ndiagnostic criteria for \nadjustment disorder mixed.  \n \nQ: Okay. But you’re not \nproviding a causation \nopinion as to what has \ncaused --  \n \nA: My only opinion is that he \nreports to me that all of \nthese symptoms were either \nstarted or magnified post-\naccident.  \n \nQ: Okay. And that’s not really \nan opinion; it’s a --  \n \nA: It’s a reporting of what he – \n \nQ: -- repetition of what he said. \nRight? \n  \nA: Yes. Uh-huh. \n \nQ: Okay. So, ultimately he’s in \ncontrol as far as what the \ndiagnosis is based on what \nhe reports to you as a \nclinical professional.  \n \nA: Yeah.  \n  \n(Id. at Pp. 63 - 64). \n\nELLIS - H107908  30\n  \n \n \n Since the testing and opinions of Tobi Taylor are based solely on the \nself-serving, subjective complaints of the claimant and not on any \nmeasurable objective findings, her testimony should be disregarded.  \n The record is clear that Dr. Baskin is the physician best suited to \ndetermine the history and causes of the claimant’s injury.  There is clearly \nnothing in the record that reflects any objective finding of an acute injury to \nthe claimant’s brain.  The claimant underwent a battery of testing to \ndetermine if there is a medical source of his complaints and each revealed \nthat there was no physical injury.  The sole findings that would indicate an \ninjury are based on the claimant’s own reporting which, is clear from the \nrecord, is undisputedly unreliable.  There has been no evidence submitted \nby the claimant to controvert Dr. Baskin’s opinion, and he has therefore \nfailed to meet his burden of proving that he suffered a compensable closed-\nhead injury. \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":49472,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H107908 JESSIE D. ELLIS, EMPLOYEE CLAIMANT CITY OF CONWAY, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE WORKERS’ COMPENSATION TRUST, INSURANCE CARRIER/TPA RESPONDENT","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["knee","neck","back","strain","fracture","tbi","concussion","repetitive"],"fetchedAt":"2026-05-19T22:29:45.331Z"},{"id":"full_commission-H300483-2024-06-19","awccNumber":"H300483","decisionDate":"2024-06-19","decisionYear":2024,"opinionType":"full_commission","claimantName":"Jason Love","employerName":"Reynolds Construction Company, Inc","title":"LOVE VS. REYNOLDS CONSTRUCTION COMPANY, INC. AWCC# H300483 JUNE 19, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Love_Jason_H300483_20240619.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Love_Jason_H300483_20240619.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H300483 \n \nJASON B. LOVE, \nEMPLOYEE \n \nCLAIMANT \nREYNOLDS CONSTRUCTION COMPANY, INC.,  \nEMPLOYER \n \nRESPONDENT \nAMERICAN CASUALTY CO. OF READING PA/ \nGALLAGHER BASSETT, CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 19, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nDecember 15, 2023.  The administrative law judge found that the claimant \ndid not prove he sustained a compensable injury.  The Full Commission \nfinds that the claimant did not prove by a preponderance of the evidence \nthat he sustained a compensable injury.     \nI.  HISTORY \n Jason Love, now age 33, testified that he became employed with the \nrespondents, Reynolds Construction Company, in about April 2022.  Mr. \nLove testified that he initially worked for the respondent-employer on its \n\nLOVE - H300483  2\n  \n \n \n“painting crew” and eventually became a general laborer with the \nrespondents’ “carpenter crew.”  The parties stipulated that the employee-\nemployer-carrier relationship existed on October 23, 2022 and at all other \npertinent times.  The claimant testified on direct examination: \n  Q.  Tell me what happened at work. \nA.  It was a big furniture move.  We had, I believe, it was 15 or \nplus offices or conference rooms, we needed to get all of the \nfurniture taken out, put in to two large connexes....So that way \nwe could have everything moved out of the room to redo the \nfloors, repaint, I believe, new lighting and in the end of it, \nmove everything back to its proper position in the office to \nwhere it was prior to us moving it. \nQ.  Okay.  So you were moving furniture and what happened \nto you? \nA.  I believe I overstrained and hurt myself at some point and \ncontinued working and it just seemed to escalate and move – \nmove past what I thought was comfortability.   \nQ.  What part of your body was hurting? \nA.  My shoulder....My left shoulder in between my shoulder \nblade and my spine.   \nQ.  Okay.  Did you tell your employer that you got hurt moving \nfurniture? \nA.  I made mention that I was having pain in my shoulder.  I \ndidn’t formally tell them as [an] accident report, because at the \ntime, I didn’t feel like there was anything to report.   \nQ.  Okay.  Did you continue to work? \nA.  Yes, ma’am. \nQ.  Okay.  Full duty? \nA.  Yes, ma’am. \nQ.  Okay.  What happened on October 23\nrd\n, 2022? \nA.  I woke up that morning immobile and in severe pain, took \nme extensive time to get out of the bed and prepared for my \nday; and so, I went to Urgent Care, because I knew at that \npoint something had escalated and it was not simply a sore \nmuscle or something of that nature.  It was something more \nsevere it felt.... \nI believe, I told them that I’d hurt it at work and couldn’t tell \nthem exactly what day it was, but it was some time during our \n\nLOVE - H300483  3\n  \n \n \nmove.  As hectic as everything was, it was hard to pinpoint the \ntiming of it, but had mentioned that I was going to the doctor \nto get things figured out, because it seemed like it was much \nmore severe than previously thought.... \nQ.  Now, you mentioned that you woke up with this pain on \nOctober 23\nrd\n, is that correct? \nA.  Yes, ma’am.   \nQ.  Now, that was a Sunday, is that correct? \nA.  Yes, ma’am.   \nQ.  Were you working that Sunday? \nA.  No, ma’am.... \nQ.  So what was the last date that you worked? \nA.  It would be October 21\nst\n.   \nQ.  Okay.  And did you experience any new injuries on \nOctober 21\nst\n? \nA.  No, ma’am.   \nQ.  Okay.  How did you feel when you left work that Friday? \nA.  General soreness, still located pain in my left shoulder, just \ngeneral tense from working through the week and making it to \nthe weekend.   \nQ.  Did you tell Casey on Friday that you needed to go to the \ndoctor? \nA.  No, ma’am.... \n \n The claimant’s testimony indicated that he sent a text message that \nmorning to his supervisor, Casey Harness.  The record contains excerpts of \ntext messages sent by the claimant beginning Saturday, October 23, 2022:  \n“I’m about to go to urgent care my shoulder has been f---ing with me for \nabout 2 or 3 weeks and I woke up this morning and literally could not move \nat all I was in so much pain it took me almost an hour to get dressed....” \nAccording to the record, the claimant treated at Jefferson Regional \nMedical Center on October 23, 2022.  An Urgent Care Note indicated: \n31 y/o male with complaints of 8/10 back pain medial to left \nshoulder blade x 3 weeks – states he has had pleurisy in the \n\nLOVE - H300483  4\n  \n \n \npast and it feels very similar – states he has a catch in his \nbreath because of the pain.  Denies cough, runny nose, sore \nthroat.  He works construction and lifts heavy objects often.  \nHe has tried ibuprofen without improvement.  Denies chest \npain – pain is primarily in the back.   \n \n An x-ray of the claimant’s chest was done with the impression, “No \nacute pulmonary finding.”  The claimant was discharged from Jefferson \nRegional on October 23, 2022 with the diagnosis “1.  Musculoskeletal \nstrain.”  A physician’s note indicated that the claimant could “return to full \nphysical activity as of 10/24/2022.” \n The record contains a portion of another text message sent by the \nclaimant on October 23, 2022:  “They think I may have tore a muscle and \nmy shoulder and if giving me some muscle relaxers and told me to rest it for \na bit and to try not to over do it ....”    \n The respondents’ attorney cross-examined the claimant: \nQ.  Now, when you went to the Urgent Care on Sunday, \nOctober 23\nrd\n, they inquired, “Is this a work-related injury,” \ndidn’t they? \nA.  Yes, ma’am.   \nQ.  And you told them, “No,” didn’t you? \nA.  Yes, ma’am, I believe so.   \nQ.  So on October 23\nrd\n, you’re thinking it’s an over-exertion \nfrom work, “I’ve over-worked – I wouldn’t be here, if I hadn’t \nworked so hard.”  You still told them, “It’s not a workers’ \ncompensation claim,” didn’t you? \nA.  Yes, ma’am.... \nQ.  And your attorney is claiming the stipulations are that you \ninjured yourself on October 23\nrd\n, 2022.  You didn’t injure \nyourself on that day, did you? \nA.  No, ma’am.   \n\nLOVE - H300483  5\n  \n \n \nQ.  And she got the testimony that moving the furniture, you \nthink, you injured yourself moving furniture, right? \nA.  Yes, ma’am.  \nQ.  But you can’t say when, can you? \nA.  No, ma’am.  That was the only –  \nQ.  You can’t say, “I was moving that desk or that file cabinet,” \ncan you? \nA.  No, ma’am.     \n \n The claimant testified on direct examination: \nQ.  Following going to the Urgent Care, did you contact Casey \nor Mr. Harness about this being a workers’ comp claim? \nA.  No, ma’am. \nQ.  Okay.  Why not? \nA.  Whenever I went there, they said there was no signs of \npleurisy and that it was probably just a disturbed muscle from \nover-exertion and to let it rest and give it time to heal and it \nshould work out on its own.... \nQ.  And did you notify your employer, though, that you would \nhave to be off work? \nA.  Yes, ma’am.   \n \n The claimant sent a text message on Monday, October 24, 2022 \nindicating, “Gonna give it another tay (sic) of rest.  And have to pick up \nprescription at pharmacy today.”  The claimant’s supervisor, Casey \nHarness, replied through text, “Thats fine.  But you need to be here \ntomorrow.” \n The respondents’ attorney examined Casey Harness: \n  Q.  What do you do for Reynolds? \nA.  I’m construction superintendent, general construction \nsuperintendent.... \nQ.  Was [the claimant] working for you at the Juvenile Justice \nCenter in September and October of last year? \nA.  Yes, ma’am.... \nQ.  What was he doing? \n\nLOVE - H300483  6\n  \n \n \nA.  At that time, we were moving furniture in and out so that \nthey could repaint and lay flooring.... \nQ.  All right.  And Jason was doing this work with your crew? \nA.  Yes, ma’am.  He was on my crew.... \nQ.  Tell me what you know about him getting hurt? \nA.  What I know about Jason getting hurt is he came in one \nMonday morning and he told me that he had injured himself \nover the weekend.  He said that he thought that he had pulled \nsomething or did something.  He told me that he had been \nhurt previously and he thought that he had just re-pulled \nsomething and he said he wanted to go to the doctor about \nthat.  At that point, I allowed him to stay and work, because \nJason had been there the entire time.... \nQ.  Was this before we know he went to the Urgent Care on \nOctober 23\nrd\n? \nA.  Yes, I believe so.   \nQ.  Okay. \nA.  That was before he had seen anyone about the shoulder. \nQ.  Okay.  So before he went to the doctor, he told you he got \nhurt over the weekend? \nA.  Yes, ma’am.... \nQ.  Did he ever tell you, “I got hurt at work”? \nA.  He told me he did not get hurt at work.   \n \n The claimant’s attorney cross-examined Casey Harness: \nQ.  Now, you mentioned that Mr. Love said that he never got \nhurt at work.  Did you ask him how he got hurt? \nA.  I didn’t, but he told me that he had been helping his \nbrother and they moved some bottles or some tanks.  I’m not \n– I don’t specifically, know what, he just said he was helping \nhis brother over the weekend moving some heavy objects and \nthat he had pulled something.   \n \n The claimant returned to Jefferson Regional Medical Center on \nOctober 31, 2022:  “Patient reports one month hx of left posterior scapula \npain radiating to middle of back with swelling.  Reports this has been going \non for one month.  Reports for the past week he has had numbness and \n\nLOVE - H300483  7\n  \n \n \ntingling extending to left hand and fingers.  Denies fall or injury.”  The \nclaimant was diagnosed with “Musculoskeletal pain” and “Radicular pain.”   \n A CT of the claimant’s thoracic spine was taken on October 31, 2022 \nwith the following findings: \nNo acute fracture or dislocation.  Alignment is normal.  \nVertebral body heights are normal.  Intervertebral disc spaces \nare within normal limits.  No bony spinal canal stenosis.  No \nneural foraminal stenosis.  Mild pleural/parenchymal scarring \nin the lung apices.  Calcified granulomas in the left lung.  Soft \ntissues otherwise within normal limits.   \nIMPRESSION:  No acute abnormality of the thoracic spine.   \n \n The claimant testified that he did not return to work for any employer \nafter October 31, 2022.   \nAn MRI of the claimant’s cervical spine was taken on November 11, \n2022: \nHISTORY:  Neck pain and left upper extremity \nradiculopathy.... \nIMPRESSION:  1.  At C7-T1 there is a left-sided disc \nherniation extending into the region of the foramen.  This \nproduces left foraminal stenosis and appears to impinge upon \nthe left C8 nerve root.   \n2.  At C4-5 there is shallow broad-based central and left \nparacentral disc protrusion.  There is mild left foraminal \nstenosis.   \n3.  At C5-6 there is shallow broad-based diffuse disc \nprotrusion and bony spur.  This effaces the ventral \nsubarachnoid space and produces some mild central canal \nnarrowing.  There is moderate bilateral foraminal stenosis.   \n \nThe record indicates that the claimant signed a Form AR-N, \nEMPLOYEE’S NOTICE OF INJURY, on or about December 16, 2022.  The \n\nLOVE - H300483  8\n  \n \n \nACCIDENT INFORMATION section of the Form AR-N indicated that the \nPlace of Accident was “Gradual onset multiple job sites.”  The claimant \nwrote in the Date of Accident section, “Initial doctor visit 10/23/22.”  The \nTime of Accident was “Gradual Onset,” and the claimant wrote that he \nnotified the employer of the accident on October 23, 2022.  The claimant \nreported on the Form AR-N that he injured his “Left shoulder and neck.”  \nThe claimant wrote regarding the cause of injury, \"Began with massive \nfurniture move at JJC.  No prior issues or pain.  Other job site tasks at other \nlocations include lifting sheet rock panels, overhead demolition, and general \nlifting and labor.  Believed it was simply a sore/pulled muscle until an MRI \nrevealed objective finding and was refered (sic) to a specialist.” \nThe claimant testified on direct examination with regard to the Form \nAR-N: \nQ.  And the date on here is December 16\nth\n, 2022.  Is that the \ndate that you gave it to your employer? \nA.  Yes, ma’am, I believe so. \nQ.  Okay.  Who did you give it to? \nA.  I gave it to Mr. Mike Reynolds.   \nQ.  Okay.  So you gave him notice of a workers’ comp injury in \nDecember, is that fair? \nA.  Yes, ma’am.... \n \n The respondents’ attorney examined Mike Reynolds: \n  Q.  Mr. Reynolds, what do you do for a living? \n  A.  I am president of Reynolds Construction.... \nQ.  Do you remember him coming in to your office with this \nform, this AR-N? \n  A.  Yes, I do.... \n\nLOVE - H300483  9\n  \n \n \nQ.  So after he filed a claim and you became aware that he \nwas saying he got hurt at work, did you have a conversation \nwith him? \nA.  I’m sure I did, but I don’t remember exactly. \nQ.  Okay.  But did he ever tell you he got hurt at work from a \nspecific incident? \nA.  He did say that the strain, he thought, came from moving \nthe furniture, yes.   \nQ.  Okay.  But did he tell you when that happened? \nA.  Not with a specific incident, no.   \nQ.  Did he ever report injuring himself to you or Casey or \nanybody else, before filing this claim in December of last \nyear? \nA.  No, ma’am.  There was no First Report of Injury done.  \nThere was no accident report done.  There was no post-\naccident drug screen performed.   There was nothing – none \nof the procedures that have been laid out in our company \nhandbook followed.... \nQ.  If he had told you, “I got hurt at work,” what would you \nhave done? \nA.  He would have been sent to Healthcare Plus, which is who \nwe use for our – most of our accident stuff, immediately for a \npost-accident drug screen.  There would have been a First \nReport of Injury form filled out as well as an accident report, \nand the workers’ comp claim would have kicked in at that \npoint. \nQ.  All right.  And that did not happen here? \nA.  That did not happen here.   \n \n The claimant signed a Form AR-C, CLAIM FOR COMPENSATION, \non January 20, 2023.  The claimant wrote in the ACCIDENT \nINFORMATION section of the Form AR-C, “Massive furniture move, \noverhead work, and demolition work.  Pain began in left shoulder blade \nleading to doctor visits to discover (by MRI) 2 herniated discs, bone spur, \nand a pinched nerve.  Sent to a specialist at Ortho Arkansas and awaiting \nthe appointment to determine next step in treatment.”   \n\nLOVE - H300483  10\n  \n \n \nDr. Jared Seale examined the claimant on or about February 8, \n2023: \nJason Love is a 31 year old Male who presents to discuss \nconcerns about their Neck pain, OTHER (Shoulder pain and \npinched nerve) that began on 10/23/2022.... \n31-year-old gentleman status post a gradual work related \ninjury when he developed severe left-sided neck pain that \noccasionally radiates down the arm with functional numbness \nand weakness/neurologic deficit. \nHis symptoms started at work 3 months ago.  Since that time \nhe [has] really been fighting a legal issue with Worker’s Comp. \nand been unable to obtain help.... \nAP and lateral x-ray of the cervical spine ordered, obtained, \nand interpreted today reveals mild disc space degenerative \nchanges with spurring at C5-6.  C7-T1 is easily approachable \nanteriorly. \nMRI of the cervical spine reviewed on disc today reveals mild \ndegeneration at C5-6.  Most pertinent finding is acute disc \nprotrusion on the left at C7-T1 that extends into the foramen \ncausing severe impingement of the exiting C8 nerve root.   \n \n Dr. Seale assessed “Disc protrusion, large, left, C7-T1 with functional \nneurologic deficit/numbness/weakness, left C8 with neck pain” and “C5-6 \ndegenerative disc disease, asymptomatic.”  Dr. Seale discussed, “The \npatient has a significant functional neurologic deficit on the left side.  His \nsymptoms have been ongoing for over 3 months.  My recommendation is \nfor decompression to give the nerve root the best chance to improve but the \npatient and his mother understand that decompression does not guarantee \nimprovement of symptoms....The patient’s cervical MRI does showed (sic) \nan acute injury of a disc protrusion on the left at C7-T1 which correlates \nwith the patient’s clinical symptoms.  The patient’s objective signs on the \n\nLOVE - H300483  11\n  \n \n \nMRI correlate perfectly with his subjective complaints of symptoms.  The \npatient’s symptoms began on and after the work injury.  The patient has no \nhistory of pain in the neck pain or pain down the arm prior to the work injury.  \nTherefore it is within a certain degree of medical certainty that at least 51% \nof the patient’s current symptoms are directly related to their work injury.”   \n The Commission received another Form AR-C, CLAIM FOR \nCOMPENSATION, on March 29, 2023.  The ACCIDENT INFORMATION \nsection of this Form AR-C indicated that the Date of Accident was October \n23, 2022:  “The claimant was injured during the course and scope of \nemployment.  The claimant sustained injuries to the neck, left shoulder, left \narm, back and other whole body.”     \nA pre-hearing order was filed on June 6, 2023.  According to the pre-\nhearing order, the parties agreed to litigate the following issues: \n1.  Whether Claimant sustained compensable injuries to his \nneck, back, and left shoulder by specific incident.   \n2.  Whether Claimant is entitled to reasonable and necessary \nmedical treatment. \n3.  Whether Claimant is entitled to temporary total disability \nbenefits from October 24, 2022, to a date yet to be \ndetermined. \n4.  Whether Claimant is entitled to a controverted attorney’s \nfee.  All other issues have been reserved.   \n \n The parties stipulated that the respondents “have controverted this \nclaim in its entirety.”   \n\nLOVE - H300483  12\n  \n \n \n Dr. Seale performed surgery on June 23, 2023:  “1.  Anterior cervical \ndecompression with arthrodesis, C7-T1.  2.  Instrumentation, anterior, C7-\nT1.  3.  Insertion of machined interbody spacer, anterior, C7-T1.”  The pre- \nand post-operative diagnosis was “1.  Disc protrusion, left, foraminal, C7-\nT1.  2.  Degenerative disk disease, C7-T1.  3.  Cervical radiculopathy.”  Dr. \nSeale noted, “Mr. Levin (sic) is a 32-year-old gentleman a chronic, \nprogressive history of neck pain radiating into left arm.  The pain has \nprogressively worsened over time.”   \n A hearing was held on September 14, 2023.  At that time, an \nadministrative law judge read the claimant’s contentions that “on October \nthe 23\nrd\n, 2022, the claimant was moving furniture in the scope and course \nof employment when he felt a strain on his neck, left shoulder, and back.  \nThe claimant continued to work, the pain increased.  Respondents denied \nthe claim in its entirety and the claimant received medical treatment on his \nown.  An MRI revealed a herniation at C7 to T1, and protrusions at C4, C6.  \nThe claimant contends that he sustained a compensable injury and that he \nis entitled to TTD, medical benefits, and his attorney’s fee, and all other \nissues were reserved per that questionnaire response.  The respondents on \nthe other hand contend that the claimant did not sustain a compensable \ninjury at work on the 23\nrd\n of October 2022, that is identifiable by time and \nplace of occurrence or any other time.  Respondents further contend that \n\nLOVE - H300483  13\n  \n \n \nthe claimant’s issues with his back, left shoulder, and neck are pre-existing \nand did not arise out of his employment.  Claimant cannot meet his burden \nof proof that he sustained a compensable injury as defined by the Arkansas \nWorkers’ Compensation Act.” \n An administrative law judge filed an opinion on December 15, 2023 \nand found that the claimant did not prove he sustained a compensable \ninjury.  The administrative law judge therefore denied and dismissed the \nclaim.  The claimant appeals to the Full Commission. \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... \narising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n\nLOVE - H300483  14\n  \n \n \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).   \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The determination of the credibility and weight to be given a \nwitness’s testimony is within the sole province of the Commission.  Murphy \nv. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007).  The \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony it deems worthy of belief.  Farmers Co-op v. Biles, \n77 Ark. App. 1, 69 S.W.3d 899 (2002).   \n The Full Commission reviews an administrative law judge’s decision \nde novo, and it is the duty of the Full Commission to conduct its own fact-\nfinding independent of that done by an administrative law judge.  Crawford \nv. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 (1996).  The Full \nCommission enters its own findings in accordance with the preponderance \nof the evidence.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 \nS.W.2d 348 (1990). \n\nLOVE - H300483  15\n  \n \n \n An administrative law judge found in the present matter, “4.  The \nclaimant has not proven that he suffered a compensable injury on 23 \nOctober 2022.”  The Full Commission finds that the claimant did not prove \nby a preponderance of the evidence that he sustained a compensable injury \nin accordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012). \n The claimant testified that he became employed with the \nrespondents in April 2022.  The claimant testified that he “overstrained and \nhurt myself” while moving heavy furniture for the respondents.  The parties \nstipulated that the employment relationship existed on October 23, 2022, \nwhich date the parties agreed was a Sunday, and that claimant was not \nperforming employment services for the respondent-employer that day.  \nThe claimant testified that he sent a text message to his supervisor, Casey \nHarness.  The record includes a text message sent to Casey Harness in \nwhich the claimant stated he had been suffering from shoulder pain which \nthe claimant did not attribute to work.  The claimant sought treatment at \nUrgent Care on October 23, 2022 and reported that he had been suffering \nfrom left shoulder and back pain for three weeks.  Although it was noted \nthat the claimant “lifts heavy objects often,” the claimant did not attribute his \npain to a work-related incident.  The claimant admitted on cross-\nexamination that he did not inform the medical providers at Urgent Care \nthat he had sustained a work-related injury.  Casey Harness, the claimant’s \n\nLOVE - H300483  16\n  \n \n \nsupervisor and a superintendent for the respondents, testified, “He told me \nhe did not get hurt at work.”  Mr. Harness testified, “[H]e just said he was \nhelping his brother over the weekend moving some heavy objects and that \nhe had pulled something.”  A co-worker, James Tillman, corroborated \nCasey Harness’ testimony that the claimant had reported sustaining an \ninjury while assisting his brother away from the workplace.  Another co-\nworker, Wes Brandon, also testified that the claimant did not report \nsustaining an injury while performing work for the respondents.   \n The claimant sought medical treatment on October 31, 2022 and it \nwas expressly noted at that time, “Denies fall or injury.”  The claimant \nsigned a Form AR-N, EMPLOYEE’S NOTICE OF INJURY, on December \n16, 2022 and alleged that the Place of Accident was “Gradual onset \nmultiple job sites.”  Mike Reynolds, company president, testified that the \nclaimant did not report a work-related specific incident to him.  Dr. Seale \nexamined the claimant on February 8, 2023 and noted an alleged “gradual \nwork related injury.”  Dr. Seale eventually performed surgery.   \n The Full Commission finds in the present matter that the claimant \nwas not a credible witness.  The claimant’s testimony was not corroborated \nby the evidence of record or the testimony of Casey Harness, James \nTillman, Wes Brandon, or Mike Reynolds.  The Full Commission finds that \nthe claimant did not prove he sustained a compensable injury in \n\nLOVE - H300483  17\n  \n \n \naccordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012).  The \nclaimant did not prove that he sustained an accidental injury causing \nphysical harm to the body.  The claimant did not prove that he sustained an \ninjury which arose out of and in the course of employment, required medical \nservices, or resulted in disability.  We attach minimal evidentiary weight to \nDr. Seale’s conclusion that the claimant’s symptoms were “directly related \nto their work injury.”  Nor did the claimant prove that the alleged injury was \ncaused by a specific incident which was identifiable by time and place of \noccurrence.  See Edens v. Superior Marble & Glass, 346 Ark. 487, 58 \nS.W.3d 369 (2001).   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that he \nsustained a compensable injury in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(i)(Repl. 2012).  The claimant does not contend that he sustained \na compensable injury in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(ii)(b)(Repl. 2012).  This claim is respectfully denied and \ndismissed. \n  \n \n \n \n\nLOVE - H300483  18\n  \n \n \nIT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":26855,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H300483 JASON B. LOVE, EMPLOYEE CLAIMANT REYNOLDS CONSTRUCTION COMPANY, INC., EMPLOYER RESPONDENT AMERICAN CASUALTY CO. OF READING PA/ GALLAGHER BASSETT, CARRIER/TPA RESPONDENT OPINION FILED JUNE 19, 2024","outcome":"denied","outcomeKeywords":["dismissed:1","denied:6"],"injuryKeywords":["back","shoulder","strain","thoracic","fracture","cervical","neck","herniated"],"fetchedAt":"2026-05-19T22:29:45.350Z"},{"id":"alj-H201226-2024-06-18","awccNumber":"H201226","decisionDate":"2024-06-18","decisionYear":2024,"opinionType":"alj","claimantName":"Stanley Beck","employerName":null,"title":"BECK VS. CRANFORD CONSTRUCTION COMPANYAWCC# H201226June 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BECK_STANLEY_H201226_20240618.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BECK_STANLEY_H201226_20240618.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H201226 \n \n \nSTANLEY J. BECK, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nCRANFORD CONSTRUCTION COMPANY,   \nEMPLOYER                                                                                                            RESPONDENT     \n \nACIG INSURANCE COMPANY, \nINSURANCE CARRIER                                                                                        RESPONDENT  \n          \nRISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR                                                                    RESPONDENT                  \n \nOPINION FILED JUNE 18, 2024   \n \nA hearing was held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski \nCounty, Arkansas. \n \nClaimant, unrepresented/pro se, failed to appear at the hearing.        \n \nRespondents were represented  by the  Honorable William “Shane” M. Bridgeforth, Attorney  at \nLaw, Pine Bluff, Arkansas. \n \n                                                  STATEMENT OF THE CASE      \n \n A hearing was held on April 10, 2024 , in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702(d), and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nNo testimony was taken. \n The record consists of the transcript of the April 10, 2024, hearing and the documents held \ntherein.  Specifically included in the record is Commission’s Exhibit No. 1 consisting of six (6) \n\nBECK – H201226 \n \n2 \n \npages.   Additionally,  in  order  to  adequately address this  matter  under  Ark.  Code  Ann.  §  119-\n705(a)(1) (Repl. 2012)(Commission must “conduct the hearing  . . . in a manner which best \nascertains the rights of the parties”), and without objection, I have blue-backed to the record, four \ntotaled pages which includes the Form AR-C, pleadings, and correspondence.  In accordance with \nSapp  v.  Tyson  Foods,  Inc.,  2010  Ark.  App.  517,  ___  S.W.3d  ___,  these  documents  have  been \nserved on the parties in conjunction with this opinion. \n                                                                 DISCUSSION \n On October 13, 2022, the Claimant filed a Form AR-C with the Commission alleging that \nhe sustained a compensable injury during the course and in the scope of his employment with the \nrespondent-employer on February 24, 2021.  Specifically, per this document, the Claimant alleged \nhe stepped in a hole and injuries his right knee while performing employment duties on a job site.  \nThe Claimant stated on the Form AR-C that tall grass obstructed his view of the hole.  However, \nthe Claimant requested only additional medical expenses, additional permanent partial disability, \nand that he be evaluated by another a doctor.      \n  The respondent-insurance-carrier filed a Form AR-2, with the Commission on February \n9, 2022, wherein they accepted compensability of the claim.  The Respondents accepted this claim \nfor  a  compensable “right  knee injury.”  It  appears  that the  Respondents  paid benefits  to  and  on \nbehalf of the Claimant for his admittedly compensable right knee injury of February 2021. \nSince the filing of the Form AR-C, there has been no affirmative action taken on the part \nof the Claimant to prosecute this claim, or otherwise pursue benefits.  In fact, the Claimant has not \never filed a request for a hearing in matter.  \nTherefore, on or about February 27, 2024, the Respondents filed a Respondents’ Motion \nto Dismiss, with  the  Commission,  along  with a Certificate  of  Service  to  the Claimant.  Per  this \n\nBECK – H201226 \n \n3 \n \ndocumentation,  the  Respondents  confirmed  that  they  served  a  true  and  correct  copy  of  the \nforegoing pleading upon the Claimant by via first-class mail on that same day.          \n  The Commission sent a Notice to the Claimant on February 28, 2024, informing him of \nthe Respondents’ motion, and a deadline of twenty (20) days, for filing a written response.  This \nnotice was sent via first-class and certified mail via the United States Postal Service.   \nHowever, the United States Postal Service informed the Commission on March 23, 2024, \nthat this item was delivered to the Claimant’s and left with an individual.  The proof of delivery \nappears to bear the Claimant’s signature.  Also, the letter notice sent to the Claimant by first-class \nmail has not been returned to the Commission.  \nNevertheless, there was no response from the Claimant.   \n  Pursuant to a Hearing Notice dated March 12, 2024, the Commission notified the parties \nthat the matter had been set for a hearing on the Respondents’ Motion to Dismiss. Said hearing \nwas  scheduled  for April  10,  2024, at 10:30 a.m., at  the Commission,  in  Little  Rock,  Arkansas.  \nThis notice was sent via first class and certified mail via the United States Postal Service.   \nThe  information  received  from  the  Postal  Service  shows  that  they  were  unable  to  locate \nany delivery information on this item per their tracking system.  However, the letter notice sent to \nthe Claimant by first-class mail has not been returned to the Commission.  \nStill, there was no response from the Claimant.     \n A hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \ndid not appear at the hearing.  However, the Respondents appeared through their attorney.  The \nRespondents’ attorney asserted  that  the Claimant  has  failed  to  prosecute  his claim for workers’ \ncompensation benefits and that it should be dismissed for want of prosecution.  He further noted \nthat the Claimant has not asked for a hearing since the filing of the Form AR-C, which was done \n\nBECK – H201226 \n \n4 \n \nmore  than  six (6)  months  ago.   According to the Respondents’ attorney’s motion,  he  submitted \nthat this claim be dismissed based on the time timing of the events described above and the history \nof the claim. \n                                        Adjudication \nThe statutory provisions and Arkansas Workers’ Compensation Rule applicable in this \nmotion for dismissal of this claim are outlined below:  \n Specifically, Arkansas Code Annotated §11-9-702(d) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution.  (Effective March 1, 1982) \n \n \nA review of the evidence shows that the Claimant has had ample time to pursue his claim \nfor additional workers’ compensation benefits, but  he has  failed  to  do  so.  Specifically,  the \nClaimant has not requested a hearing or otherwise attempted to prosecute his claim for benefits \nsince the filing of the Form AR-C, which was done more than six (6) months ago.  Most notably, \n\nBECK – H201226 \n \n5 \n \nthe  Claimant  has  not  responded  to  the  Notices  of  this  Commission, nor  has  he contested the \ndismissal request or objected to his claim being dismissed.           \nAfter consideration of the evidence before me, I find the Respondents’ Motion to Dismiss \nto be well taken.  Accordingly, pursuant to Ark. Code Ann. §11-9-702 (d), and Commission Rule \n099.13,  this  claim for additional workers’ compensation benefits is  hereby dismissed without \nprejudice to the refiling of it within the limitation period specified within the applicable limitation \nperiod. \n       FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704. \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents  filed  with  the  Commission a Motion to  Dismiss  this   \nclaim, for want of prosecution for which a hearing was held. \n \n3. The Claimant has not requested a hearing since the filing of the Form AR-\nC,  which  was done more  than  six  (6)  months  ago.    Hence,  the evidence \npreponderates  that  the  Claimant  has  failed  to  prosecute  his  claim  for \nworkers’ compensation benefits based upon the relevant provisions of the \nspecified  statute,  Ark.  Code  Ann.  11-9-702,  and  Rule  099.13  of  this \nCommission.       \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion for dismissal of this claim for want of prosecution \nis  hereby  granted, without  prejudice,  per  Ark.  Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \n \n \n \n \n \n\nBECK – H201226 \n \n6 \n \n                                               ORDER \n \n Based upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut  to  dismiss  this  claim  for more workers’ compensation benefits.  This  dismissal is  hereby \nordered pursuant  to  Ark.  Code  Ann.  §11-9-702(d), and Commission  Rule  099.13, without \nprejudice to the refiling of this claim within the limitation period specified under the Act. \n          IT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               ADMINISTRATIVE LAW JUDGE","textLength":10780,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H201226 STANLEY J. BECK, EMPLOYEE CLAIMANT CRANFORD CONSTRUCTION COMPANY, EMPLOYER RESPONDENT ACIG INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 18, 2024 A hearing was hel...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:52:52.651Z"},{"id":"alj-H303793-2024-06-18","awccNumber":"H303793","decisionDate":"2024-06-18","decisionYear":2024,"opinionType":"alj","claimantName":"Shatarica Frazier","employerName":null,"title":"FRAZIER VS. ODYSSEY HEALTHCARE OPERATING LPAWCC# H303793June 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FRAZIER_SHATARICA_H303793_20240618.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FRAZIER_SHATARICA_H303793_20240618.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303793 \n \nSHATARICA FRAZIER, \nEMPLOYEE                                                                                                              CLAIMANT \n \nODYSSEY HEALTHCARE OPERATING LP, \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nFARMINGTON CASUALTY CO., INC./ \nTHE TRAVELERS’ INDEMNITY CO., INC. \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE  \nFILED JUNE 18, 2024 \n \nHearing conducted on Friday, June 14, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Texarkana, \nMiller County, Arkansas. \n \nThe claimant, Ms. Shatarica Frazier, pro se, of Texarkana, Miller County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Friday, June 14, 2024, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark. Code  Ann. §  11-9-702(a)(4)  (2024 Lexis \nReplacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n The respondents filed  a letter motion to  dismiss without  prejudice (MTD) with  the \nCommission on January 2, 2024, requesting this claim be dismissed without prejudice for lack of \nprosecution. The Rainwater, Holt & Sexton law firm (the Rainwater Firm) initially represented the \nclaimant  in  this  matter.  By  order  filed  March  5,  2024,  the  Commission  granted  the  Rainwater \nFirm’s request to withdraw as the claimant’s attorney of record. Thereafter, via  a  letter  to  the \n\nShatarica Frazier, AWCC No. H303793 \n \n2 \n \nCommission  filed  March  14,  2024,  the  respondents  renewed  their  dismissal  request. Consistent \nwith the applicable Arkansas law, the Commission mailed a copy of both the respondents’ MTD \nand the subject hearing notice to the claimant at her last known address of record via the United \nStates  Postal  Service  (USPS),  Certified  Mail,  Return  Receipt  Requested, which  the  claimant \nreceived  on  March  21,  2024. (Commission Exhibit  1). Thereafter,  the  claimant  failed  and/or \nrefused to respond in any way to either the Commission or to the respondents; and she failed and/or \nrefused  to  appear  at  the  subject  hearing.  The  claimant  never  objected  in  any  way  to  the \nrespondents’ MTD. \n The  record  herein  consists  of the  hearing  transcript  and  any  and  all exhibits  contained \ntherein and attached thereto. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the respondents’ \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing and contained in the record conclusively demonstrates the \nclaimant has both failed and/or refused to prosecute her claim, and she has failed and/or refused to \nrequest a hearing within the last six (6) months on her claim. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After the Commission mailed due and legal notice of the respondents’ MTD \n\nShatarica Frazier, AWCC No. H303793 \n \n3 \n \n                  to the claimant she failed and/or refused to respond to the motion in any \n                  way; failed and/or refused to object to the subject MTD; and failed and/or refused \n                  to request a hearing on the merits of her claim. \n \n            3.         The claimant failed and/or refused to appear at the subject hearing and, therefore, \n                        has waived her right to a hearing on the respondents’ MTD. \n \n      4.         The claimant has failed to request a hearing either on the merits, or on any issue \n                  related to her claim within the last six (6) months. \n \n 5. The respondents’ letter MTD without prejudice initially filed with the Commission \n                  on January 2, 2024, and then renewed via a letter filed with the Commission March \n                  14, 2024, should be and hereby is GRANTED. \n      \n      6.         Therefore, this claim hereby is dismissed without prejudice to its refiling \n                  pursuant to the deadlines prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and \n                  Commission Rule 099.13. \n \n This opinion shall not be construed to prohibit the claimant, her attorney, any attorney she \nmay retain in the future, or anyone acting legally and on her behalf from refiling this claim if the \nclaim is refiled  within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The  respondents shall pay the court reporter’s invoice within twenty  (20) days  of their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \n \nMP/mp","textLength":5878,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303793 SHATARICA FRAZIER, EMPLOYEE CLAIMANT ODYSSEY HEALTHCARE OPERATING LP, EMPLOYER RESPONDENT FARMINGTON CASUALTY CO., INC./ THE TRAVELERS’ INDEMNITY CO., INC. INSURANCE CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED JUNE 18, 2024 Hea...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:54.730Z"},{"id":"alj-H305357-2024-06-18","awccNumber":"H305357","decisionDate":"2024-06-18","decisionYear":2024,"opinionType":"alj","claimantName":"Jon Paulovich","employerName":null,"title":"PAULOVICH VS. REYNOLDS MFG’ING, INC.AWCC# H305357June 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PAULOVICH_JON_H305357_20240618.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PAULOVICH_JON_H305357_20240618.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H305357 \n \nJON PAULOVICH, \nEMPLOYEE                                                                                                              CLAIMANT \n \nREYNOLDS MFG’ING, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nSEDGWICK CLAIMS MG’T SERVICES, INC. \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE  \nFILED JUNE 18, 2024 \n \nHearing conducted on Monday, June 18, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant is represented by the Honorable Aaron L. Martin, Martin Law Firm, Fayetteville, \nWashington County, Arkansas, who waived appearance at the hearing. \n \nThe respondents were represented by the Honorable Jason Ryburn, Ryburn Law Firm, Little \nRock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A  hearing was  conducted  on Tuesday,  June  18,  2024, to  determine  whether this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n The respondents filed a motion to dismiss without prejudice (MTD) with the Commission \non April 29, 2024, requesting this claim be dismissed without prejudice for lack of prosecution. \n(Respondents’ Exhibit 2). Consistent with the applicable Arkansas law, the Commission mailed a \ncopy of both the respondents’ MTD and the subject hearing notice to the claimant and his attorney \nvia the United States Postal Service (USPS), Certified Mail, Return Receipt Requested. Thereafter, \n\nJon Paulovich, AWCC No. H305357 \n \n2 \n \nthe  claimant’s attorney advised the Commission via email the claimant had no objection to the \nMTD without prejudice, and waived appearance at the subject hearing.  \n The  record  herein  consists  of the  hearing  transcript  and  any  and  all exhibits  contained \ntherein and attached thereto. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the respondents’ \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing and contained in the record conclusively demonstrates the \nclaimant has both failed and/or refused to prosecute her claim, and she has failed and/or refused to \nrequest a hearing within the last six (6) months on her claim. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After the Commission mailed due and legal notice of the respondents’ MTD \n                  and the subject hearing notice to the claimant and his attorney, the claimant’s  \n                  attorney advised the Commission via email the claimant did not object to the MTD \n                  without prejudice, and waived appearance at the hearing. \n \n      4.         The claimant has failed to request a hearing either on the merits or on any issue \n                  related to his claim within the last six (6) months. \n \n 5. The respondents’ MTD without prejudice filed with the Commission on April 29, \n                  2024, should be and hereby is GRANTED. \n      \n      6.         Therefore, this claim hereby is dismissed without prejudice to its refiling \n                  pursuant to the deadlines prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and \n\nJon Paulovich, AWCC No. H305357 \n \n3 \n \n                  Commission Rule 099.13. \n \n This opinion shall not be construed to prohibit the claimant, his attorney, any attorney he \nmay retain in the future, or anyone acting legally and on his behalf from refiling this claim if the \nclaim is refiled  within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The  respondents shall pay the court reporter’s invoice within twenty  (20) days  of their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5056,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305357 JON PAULOVICH, EMPLOYEE CLAIMANT REYNOLDS MFG’ING, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ SEDGWICK CLAIMS MG’T SERVICES, INC. INSURANCE CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED JUNE 18, 2024 Hearing c...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:56.803Z"},{"id":"alj-H207710-2024-06-18","awccNumber":"H207710","decisionDate":"2024-06-18","decisionYear":2024,"opinionType":"alj","claimantName":"George Shamberger","employerName":null,"title":"SHAMBERGER VS. FED EX FREIGHTAWCC# H207710June 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SHAMBERGER_GEORGE_H207710_20240618.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHAMBERGER_GEORGE_H207710_20240618.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H207710 \n \nGEORGE SHAMBERGER, EMPLOYEE    CLAIMANT \n \nFED EX FREIGHT, EMPLOYER      RESPONDENT \n \nINDEMNITY INSURANCE CO. OF NORTH AMERICA  \nCOMPENSATION CARRIER/TPA     RESPONDENT \n            \n \n \nOPINION FILED JUNE 18, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on June 18, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Jason Ryburn, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on June 18, 2024, in Little Rock, \nArkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArkansas Code Ann. 11-9-702 and Rule 13 of the Workers’ Compensation Act.   The \nclaimant was originally represented by counsel and filed a Form AR-C on October 12, \n\n2023, claiming that he had injured his fingers and hand.   A Form AR- 2 had been \npreviously filed on November 9, 2022, which provided that the date of injury was \nOctober 26, 2022, and that the first day of disability was November 3, 2022.  The \nclaimant was originally represented by Mark Peoples, attorney at law, who was allowed \nto withdraw by an Order from the Full Commission, dated April 10, 2024.    \nA Motion to Dismiss the Claim was filed on April 18, 2024, contending that the \nclaimant had failed to prosecute the claim per the law and rules of the Commission.  \nThe claimant has not requested a hearing to date and more than six months have \npassed since the filing of the original claim.   \n Appropriate notice was provided to the claimant at his last known address \nnotifying him that a hearing on the Motion to Dismiss was set for June 24, 2024, in Little \nRock, Arkansas.  The claimant did not file a response and failed to appear on the \nhearing date.  At the time of the hearing, Jason Ryburn appeared on behalf of the \nRespondents and asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for \nthe Respondent, I find that this matter should be dismissed without prejudice, for failure \nto prosecute pursuant to A.C.A. 11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to \ndismiss this claim in its entirety, without prejudice, for failure to prosecute. \n\n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2630,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207710 GEORGE SHAMBERGER, EMPLOYEE CLAIMANT FED EX FREIGHT, EMPLOYER RESPONDENT INDEMNITY INSURANCE CO. OF NORTH AMERICA COMPENSATION CARRIER/TPA RESPONDENT OPINION FILED JUNE 18, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:58.866Z"},{"id":"alj-H305941-2024-06-14","awccNumber":"H305941","decisionDate":"2024-06-14","decisionYear":2024,"opinionType":"alj","claimantName":"Krista Perry","employerName":null,"title":"PERRY VS. DREW MEMORIAL HOSPITAL, INC.AWCC# H305941June 14, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PERRY_KRISTA_H305941_20240614.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PERRY_KRISTA_H305941_20240614.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NOS. H305941 \n \nKRISTA M. PERRY, \nEMPLOYEE                                                                                                              CLAIMANT \n \nDREW MEMORIAL HOSPITAL, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nARKANSAS HOSPITAL ASS’N WORKERS’  \nCOMPENSATION SELF-INSURED TRUST/ \nRISK MG’T RESOURCES, INC. \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE  \nFILED JUNE 14, 2024 \n \nHearing conducted on Thursday, June 13, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Monticello, \nDrew County, Arkansas. \n \nThe claimant, Ms. Krista M. Perry, pro se, of Lake Village, Chicot County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Jarrod Parrish, Worley, Wood & Parrish, \nP.A., Little Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A hearing was  conducted  on Thursday,  June  13,  2024, to  determine  whether this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 \nLexis Replacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n The respondents filed a motion to dismiss without prejudice (MTD) with the Commission \non March 29, 2024, requesting this claim be dismissed without prejudice for lack of prosecution. \nConsistent with the applicable Arkansas law, by letter dated April 3, 2024, the Commission mailed \na copy of both the respondents’ MTD, and the subject hearing notice via the United States Postal \nService (USPS), Certified Mail, Return Receipt Requested, to the claimant’s last known address \n\nKrista M. Perry, AWCC No. H305941 \n \n2 \n \nof record with the Commission. (Respondents’ Exhibit 1). Thereafter, the claimant failed and/or \nrefused to respond in any way to either the Commission or to the respondents; and she failed and/or \nrefused  to  appear  at  the  subject  hearing.  The  claimant  never  objected  in  any  way  to  the \nrespondents’ MTD. \n The  record  herein  consists  of the  hearing  transcript  and  any  and  all exhibits  contained \ntherein and attached thereto. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the respondents’ \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing and contained in the record conclusively demonstrates the \nclaimant has both failed and/or refused to prosecute her claim, and she has failed and/or refused to \nrequest a hearing within the last six (6) months on her claim. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After the Commission mailed due and legal notice of the respondents’ MTD \n                  filed March 29, 2024, to the claimant’s last known address of record with the \n                  Commission, the claimant failed and/or refused to respond to the motion in any \n                  way; failed and/or refused to object to the subject MTD; and failed and/or refused \n                  to request a hearing on the merits of her claim. \n \n            3.         The claimant failed and/or refused to appear at the subject hearing and, therefore, \n                        has waived her right to a hearing on the respondents’ MTD. \n \n\nKrista M. Perry, AWCC No. H305941 \n \n3 \n \n      4.         The claimant has failed to request a hearing either on the merits, or on any issue \n                  related to her claim within the last six (6) months. \n \n 5. The respondents’ MTD without prejudice filed with the Commission on March 29, \n                  2024, should be and hereby is GRANTED. \n      \n      6.         Therefore, this claim hereby is dismissed without prejudice to its refiling \n                  pursuant to the deadlines prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and \n                  Commission Rule 099.13. \n \n This opinion shall not be construed to prohibit the claimant, her attorney, any attorney she \nmay retain in the future, or anyone acting legally and on her behalf from refiling this claim if the \nclaim is refiled  within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The  respondents shall pay the court reporter’s invoice within twenty  (20) days  of their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5497,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NOS. H305941 KRISTA M. PERRY, EMPLOYEE CLAIMANT DREW MEMORIAL HOSPITAL, INC., EMPLOYER RESPONDENT ARKANSAS HOSPITAL ASS’N WORKERS’ COMPENSATION SELF-INSURED TRUST/ RISK MG’T RESOURCES, INC. INSURANCE CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE F...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:48.530Z"},{"id":"alj-H303519-2024-06-14","awccNumber":"H303519","decisionDate":"2024-06-14","decisionYear":2024,"opinionType":"alj","claimantName":"Willie Thompson","employerName":null,"title":"THOMPSON VS. UNION COMPRESS WHSE. WEST MEMPHIS LLCAWCC# H303519June 14, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Thompson_Willie_H303519_20240614.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Thompson_Willie_H303519_20240614.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303519 \n \n \nWILLIE L. THOMPSON, EMPLOYEE CLAIMANT \n \nUNION COMPRESS WHSE. WEST MEMPHIS LLC, \n EMPLOYER RESPONDENT \n \nBRIDGEFIELD CASUALTY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JUNE 14, 2024 \n \nHearing  before Chief Administrative  Law  Judge  O.  Milton  Fine  II  on June  14, \n2024, in Forrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on June  14,  2024, in \nForrest  City,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted   into   evidence   without   objection   were Commission   Exhibit   1 and \nRespondents’,   forms,   pleadings,   and   correspondence   related   to   this   claim, \nconsisting of twenty-five (25) and seven (7) pages, respectively. \n\nTHOMPSON – H303519 \n2 \n \n The record reveals the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on June  1,  2023,  reflect  that \nClaimant purportedly suffered an injury   in   the   form   of   ulnar   compression \nsyndrome at  work  on or  around  May  19,  2023.   Per  the original  and  amended \nForms AR-2 filed on June 1, 2023, and June 8, 2023, respectively, Respondents \ninitially  accepted  the  claim as  a  medical-only  one  before  also  paying  temporary \ntotal disability benefits pursuant thereto. \n On July  12,  2023,  through  then-counsel Mark  Peoples,  Claimant  filed  a \nForm AR-C, alleging that he was entitled to the full range of additional benefits in \nconnection with the alleged gradual onset injury to his arm.  Peoples in an email \naccompanying  this  filing made  clear  that no hearing  was  being  requested at  that \ntime.   Curiously,  while  the  adjustor  wrote  the  Commission  on  July  17,  2023,  to \nreiterate  that  the  claim  had  been  accepted  and  that  both  medical  and  temporary \ntotal  disability  benefits  were  being  furnished,  just  one  week  later,  in a  second \namended  Form  AR-2 filed  on July  24,  2023, Respondents  reversed  course  and \ncontroverted   the   claim   in   its   entirety.    Respondents’ counsel entered   his \nappearance on July 20, 2023. \n On November 13, 2023, the parties filed a Joint Petition.  The matter was \nassigned  to  me,  and  I  scheduled  a  hearing  thereon  for  December  22,  2023,  in \nMarion,  Arkansas.    However,  the  parties  notified  me  that  the  petition  was  being \nwithdrawn, so I cancelled the hearing.  On January 2, 2024, the file was returned \nto the Commission’s general files. \n\nTHOMPSON – H303519 \n3 \n \n On February 20, 2024, Peoples moved to withdraw from his representation \nof  Claimant.    In  an  Order  entered  on March  20,  2024,  the  Full  Commission \ngranted the Motion to Withdraw under AWCC Advisory 2003-2. \n The record reflects that no further action was taken on the case until March \n22, 2024, when Respondents filed the instant Motion to Dismiss, contending that \ndismissal of the claim was warranted due to Claimant’s failure to prosecute it.  On \nMarch 26,  2024, my  office wrote  Claimant,  requesting  a  response  to  the  motion \nwithin 20 days.   This  correspondence  was  sent  by  both  certified  and  first-class \nmail to the Little Rock address for Claimant listed in the file and on his Form AR-\nC.   Someone  with  an  illegible  signature  signed  for  the  certified  letter on April  1, \n2024; and the  first-class  correspondence  was not returned to  the  Commission.  \nHowever, no response by Claimant to the motion was forthcoming. \n On April  23,  2024, a hearing on Respondents’ motion was scheduled for \nJune 14, 2024, at 10:30 a.m. at the St. Francis County Courthouse in Forrest City.  \nThe Notice of Hearing was sent to Claimant by certified and first-class mail to the \nsame address as used previously.  As before,  the certified letter was claimed by \nsomeone with an illegible signature (by all appearances, the same individual who \nclaimed  the  20-day  letter) on  April  29,  2024;  and  the first-class  letter  was  not \nreturned. \n The  hearing  proceeded  as  scheduled on May  2,  2024.    Claimant  failed  to \nappear  at  the  hearing.    But  Respondents  appeared  through  counsel  and  argued \nfor dismissal under AWCC R. 099.13. \n\nTHOMPSON – H303519 \n4 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute his claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has arguably \ntaken no action in pursuit of his claim since the filing of his Form AR-C on July 12, \n2023.   To  the  extent  that  his  efforts  to  resolve  the  claim  amicably  were \n\nTHOMPSON – H303519 \n5 \n \nprosecutorial, those ended with the withdrawal of the Joint Petition before it was to \nbe  heard  on  December  22,  2023.   Moreover, Claimant failed  to  appear  on  the \nJune  14,  2024, hearing  to  argue  against  dismissal  of  the  claim,  despite  the \nevidence showing that both he and Respondents were provided reasonable notice \nof  the  Motion  to  Dismiss  and  of  the  hearing  thereon.    Thus,  the  evidence \npreponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).   The Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nTHOMPSON – H303519 \n6 \n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7727,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H303519 WILLIE L. THOMPSON, EMPLOYEE CLAIMANT UNION COMPRESS WHSE. WEST MEMPHIS LLC, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INS. CO., CARRIER RESPONDENT OPINION FILED JUNE 14, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on June 14, ...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:50.596Z"},{"id":"full_commission-H300652-2024-06-13","awccNumber":"H300652","decisionDate":"2024-06-13","decisionYear":2024,"opinionType":"full_commission","claimantName":"Lorena Tinajero","employerName":"Tyson Poultry, Inc","title":"TINAJERO VS. TYSON POULTRY, INC. AWCC# H300652 JUNE 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Tinajero_Lorena_H300652_20240613.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Tinajero_Lorena_H300652_20240613.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H300652 \n \nLORENA TRUJILLO-TINAJERO, \nEMPLOYEE \n \nCLAIMANT \nTYSON POULTRY, INC.,  \nEMPLOYER \n \nRESPONDENT \nTYNET CORPORATION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 13, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE R. SCOTT ZUERKER, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nDecember 15, 2023.  The administrative law judge found that the claimant \nproved she sustained a compensable injury to her right shoulder.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant proved she sustained a compensable injury to her right shoulder.     \nI.  HISTORY \n The record indicates that Lorena Tinajero-Trujillo, now age 48, \nbecame employed with the respondent, Tyson Poultry, Inc., in January \n\nTINAJERO - H300652  2\n  \n \n \n2015.  The parties stipulated that the employment relationship existed “on \nor about November 30, 2021.”  The claimant testified on direct examination: \nQ.  And on November 30\nth\n of 2021, what kind of job were you \ndoing? \nA.  At that point I was already in a different department.  DSI, \nsorter it is called.... \n  Q.  And in the sorter job, what do you do? \nA.  When you get the chicken breast, it’s in the shape of a \nheart, you trim the edges and then you put it on a separate \nband....The machine cuts it.  We just grab the part from the \nmiddle and then it lets it go.... \nQ.  And in the days before November 30\nth\n of 2021, had the \nmachine been cutting properly? \nA.  No.  It had been three days since the machine had not \nbeen cutting properly and it was challenging to pull the \nchicken out.... \nQ.  So on November 30\nth\n of 2021, what happened? \nA.  On that day it had been really a tough day.  It was tougher \nthan usual.  And I was pulling on it when I felt something hot \non my shoulder all the way to the elbow.  I told my supervisor \nthat I could no longer pull on that and I was just going to let \nthe chicken go and I told my co-workers the same thing.  But \nwhen they saw that we weren’t doing it, the chicken was just \ngoing by, they fixed the machine.... \nQ.  After you felt that burning, did you report that? \nA.  I told the supervisor that my arm was burning a lot. \n \n According to the record, the claimant sought treatment with Dana \nThompson, LPN on December 8, 2021:  “TM with C/O pain in right elbow.  \nStates was sorting chicken and the right elbow started feeling hot and \nbecame painful.  Started approx. one week ago, but she thought it was just \noverworked that day and was tired.  Slight edema noted to lateral elbow.”     \n Dana Thompson treated the claimant conservatively for her elbow \ncomplaints. \n\nTINAJERO - H300652  3\n  \n \n \n On December 8, 2021, the claimant signed a TEAM MEMBER \nSTATEMENT OF INJURY/ILLNESS.  The STATEMENT indicated that the \nDate of Injury was November 30, 2021, 12:00 p.m.  The Details of \nInjury/Illness indicated, “While sorting chicken started to feel hot on the right \nelbow.”     \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on December 8, 2021.  The Form AR-N indicated that the Date of \nAccident was November 30, 2021 and that the employer was notified of \nsame on December 1, 2021.  The ACCIDENT INFORMATION section of \nthe Form AR-N indicated that the body part injured was “The right elbow.”  \nThe claimant appeared to write that she had begun feeling “pain and hot” in \nher right elbow while working.   \n The record indicates that the claimant began receiving physical \ntherapy on December 10, 2021.  The claimant’s occupation was listed as \n“Sorter Operator Class 3.”  The claimant complained of pain in her “Upper \nExtremity” and the following Description ensued:  “Discomfort and tension \nwith inflammation of lateral epicondyle; December 1\nst\n onset with regular \nwork duties.”  The History and Physical indicated, “Work Related:  Yes.” \n A physical therapist noted on December 20, 2021, “Stated that the \nelbow is doing much better although referral of pain from shoulder to the \nouter arm has gotten worse, due to work duties performed since Friday[.]”   \n\nTINAJERO - H300652  4\n  \n \n \n On December 28, 2021, the claimant signed a TEAM MEMBER \nSTATEMENT OF INJURY/ILLNESS.  The TEAM MEMBER STATEMENT \nindicated that the Date of Injury was November 30, 2021.  The Details of \nInjury indicated, “While sorting chicken started to feel hot on the right \nelbow.”      \n The claimant was examined at Arkansas Occupational Medicine \nServices on January 5, 2022.  Ceth Dawson, PA-C reported at that time: \nMs. Trujillo Tinajero was sortin (sic) chicken and felt like she \noverworked her elbow and shoulder.  Date of injury was on \n12/1/2021.... \nPatient states she gradually started having right elbow pain \nwhile working the factory line 11/30/2021 that has remained \nconstant since. \n \nHISTORY OF PRESENT ILLNESS \nLorena’s primary problem is pain located in the right elbow.  \nShe describes it as throbbing, burning.  She considers it to be \nmedium.  The problem began on 12/1/2021.  Lorena says that \nit seems to be variable – depending on the activity level.  She \nhas noticed that it is made worse by repetitive arm use, \nexertion. \n \nCOMMENTS ON HISTORY OF PRESENT ILLNESS \nAnn (sic) interpreter is present.  Lorena presents with right \nelbow pain that began approximately 1 month ago while \nworking and has gradually gotten worse.  She states that she \ndoes works (sic) on the line doing repetitive arm movements \nwhen she begins having pain in her right elbow that radiates \nup and has occasional tingling in her 4\nth\n and 5\nth\n fingers.  She \nalso reports occasional pain when she wakes up in the \nmorning.  She reports seeing the company nurse and treated \nwith stretching exercises and ibuprofen.  She has been \nrotating through different positions at work but has notice (sic) \nlittle to no improvement.... \nRight Shoulder:  The shoulder examination is normal. \n\nTINAJERO - H300652  5\n  \n \n \nRight Elbow:  Pain to palpation is present over the antecubital \nfossa.  Pain on motion is present over the elbow.... \n \n The diagnosis was “1.  Injury of ulnar nerve at forearm level, right \narm, initial encounter” and “2.  Pain in right elbow.”  Ceth Dawson assessed \n“Signs and symptoms consistent with cubital tunnel syndrome....The cause \nof this problem appears to be related to work activities.”  Mr. Dawson \nreturned the claimant to Regular Duty, follow-up in one week.   \n Ceth Dawson’s diagnosis on January 12, 2022 was “1.  Injury of \nulnar nerve at forearm level, right arm, subsequent encounter.  2.  Lateral \nepicondylitis, right elbow.  3.  Pain in right elbow.”  Mr. Dawson provided the \nclaimant with a “forearm strap,” and he returned her to regular work duty.     \n The claimant informed Dana Thompson on January 26, 2022, \n“States her pain has gotten worse and it is shooting into her shoulder.  6 \nsessions of PT ordered.  Educated on proper use of forearm strap.”   \n The claimant treated at Trinity Rehabilitation, Inc. beginning January \n28, 2022:  “Line worker for Tyson Berry Street plant.  Complains of severe \nRight elbow pain since early December, 2021....Referred for treatment of \nlateral epicondylitis.”  The assessment at that time included, “Therapy exam \nsuggests lateral epicondylitis.  I also suspect improper wear/overly \naggressive tightening/wearing of the counterforce brace resulting in radial \ntunnel syndrome and cubital tunnel syndrome type pain complaints.”     \n\nTINAJERO - H300652  6\n  \n \n \n Dr. Konstantin V. Berestnev completed a Form AR-3, Physician’s \nReport on February 16, 2022:  “Patient states that she gradually started \nhaving right elbow pain while working the factory line 11/30/2021 that has \nremained constant since.  Patient states that her right elbow is doing a little \nbetter, but she is still having a little bit of pain.  Patient has completed 5/6 \nsessions of physical therapy.”  Dr. Berestnev diagnosed “1.  Injury of ulnar \nnerve at forearm.  2.  Lateral epicondylitis, right elbow.  3.  Pain in right \nelbow.”  Dr. Berestnev returned the claimant to work with no restrictions on \nFebruary 16, 2022. \n The claimant was also discharged from Trinity Rehabilitation, Inc. on \nFebruary 16, 2022, at which time it was noted, “Will wear wrist splint until \nabout 2/24/22 before attempting to wean from same to limit chances of \nrecurrent elbow pain.”   \n The claimant returned to Dr. Berestnev on May 20, 2022: \nMs. Trujillo Tinajero was sortin (sic) chicken and felt like she \noverworked her elbow and shoulder.  Date of injury was on \n12/01/2021.... \nPatient states she gradually started having right elbow pain \nwhile working the factory line 11/30/2021 that has remained \nconstant since.... \nLorena’s primary problem is pain located in the right \nelbow....The problem began on 12/01/21....She feels it is \ngetting worse.   \n \n Dr. Berestnev diagnosed “1.  Injury of ulnar nerve at forearm level, \nright arm, subsequent encounter.  2.  Pain in right elbow.”  Dr. Berestnev \n\nTINAJERO - H300652  7\n  \n \n \nassessed, “An interpreter is present.  Lorena presents for recheck of right \nelbow burning in olecranon area....Lorena’s recommended work status is \nRegular Duty.”   \n Dr. Berestnev’s diagnosis on June 3, 2022 was “1.  Injury of ulnar \nnerve at forearm level, right arm, subsequent encounter.  2.  Pain in right \nelbow.”  The claimant informed a nurse practitioner on or about September \n27, 2022 that she was suffering from right arm numbness.  A Neurological \nEvaluation/Electrodiagnostic Report was done on December 13, 2022 with \nthe assessment, “Moderate right carpal tunnel syndrome.”   \n Candise Bostedt, RN reported on January 12, 2023: \nTM reports to OHS this am to report an injury.  Adriana Pena \nassisted TM in filling out paperwork.  Maria Camacho assisted \nin translating initial complaint of injury.  TM states that on \n11/30/21 she was working in DSI as a sorter and the new \nmachine was not making cuts correctly.  She states, “that day \n11/30/2021 the machine was worse because it was too much, \nand I started feel burn and hot on the right elbow and feel the \nsame through the wrist and up to the shoulder.”  TM continued \nby stating, “also felt like pull from inside my arm from the wrist \nto my elbow and same something pull from my shoulder to my \nright elbow.”  TM reports that the issue is from an injury that \noccurred on 11/30/2021.  TM received HMP, PT, and \ntreatment at Conservative Care for this issue.  TM was \ncleared with no further issues mid June.  TM has not reported \nany further issues/injuries/complaints since.   \n \n Candise Bostedt noted on February 8, 2023, “TM stated multiple \ntimes she did not have pain in her wrist.  TM states she has only had pain in \nher elbow and shoulder.”   \n\nTINAJERO - H300652  8\n  \n \n \nDr. Bryan Benafield, Jr. performed a “Right carpal tunnel release” on \nFebruary 17, 2023.  The pre- and post-operative diagnosis was “Right \ncarpal tunnel syndrome.”   \n Dr. Benafield’s assessment on March 1, 2023 was “1.  Carpal tunnel \nsyndrome of right wrist” and “2.  Impingement syndrome of right shoulder \nregion.”   \n Dr. Benafield reported on March 30, 2023: \nPatient seen in follow-up on the right arm.  She has recovered \nwell from her right carpal tunnel release but is still having \nsome shoulder pain despite doing the exercises I gave her \nlast time.  She has pain with abduction forward flexion internal \nrotation pain at night.  We discussed previously doing some x-\nrays and getting an injection done possibly.... \nOn exam her carpal tunnel incision is well-healed she has \ngreat range of motion.  On her shoulder she has pain with \nabduction internal rotation.  She has a positive impingement \nsign positive supersize provocative test positive crossarm.  \nMinimal AC joint tenderness. \nX-rays:  3 views right shoulder show questionable osteophyte \noff the anterior acromion minimal AC joint changes no \nglenohumeral changes.... \nAfter discussion of the risks and benefits, the patient elected \nto proceed with a Depo-Medrol injection into the right \nshoulder(s).  The injection was for treatment of \nimpingement.... \n \n The record indicates that Dr. Benafield performed another right \nshoulder injection on or about April 2, 2023.   \nA pre-hearing order was filed on June 1, 2023.  According to the pre-\nhearing order, the claimant contended, “She injured her right elbow and \nshoulder while pulling chicken apart and is entitled to medical treatment.  \n\nTINAJERO - H300652  9\n  \n \n \nClaimant reserves all other issues.”  The parties stipulated that the \nrespondents “have controverted the claim in its entirety.”  The respondents \ncontended, “Claimant did not sustain a compensable injury as that term is \ndefined by Act 796.”  \n The parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on or \nabout November 30, 2021. \n  2.  Whether claimant is entitled to medical treatment.   \n \n Dr. Benafield reported on or about August 7, 2023: \nPatient seen in follow-up for the right shoulder after the MRI.  \nThis showed low-grade partial-thickness articular surface tear \nof the infraspinatus intrasubstance tear of the distal \nsupraspinatus and some degenerative changes of the AC joint \nand a type II acromion.  In March she had a subacromial \ninjection that only gave her 40% improvement for about 2 \nweeks.... \nAfter discussion of the risks and benefits, the patient elected \nto proceed with a Depo-Medrol injection into the right ac \njoint(s).  The injection was for treatment of arthritis.... \nI have discussed with the patient through an interpreter \nregarding her MRI findings.  There is nothing I see that needs \nsurgery at the present time.  Given the lack of response to the \nprevious injection I think that we should try an AC joint \ninjection.  This was explained to the patient she agreed and \ntolerated it well.  We discussed how this makes most of her \npain go away it is likely that it will take a distal clavicle \nexcision to make the pain go away and stay away.  I will see \nher back in a month to assess how the injection did.   \n \n Dr. Benafield assessed “1.  Impingement syndrome of right shoulder \nregion” and “2.  Arthritis of acromioclavicular joint.”   \n\nTINAJERO - H300652  10\n  \n \n \n Dr. Benafield stated on September 11, 2023, “We will try a month of \nformal physical therapy to the shoulder and if that does not improve then we \nare going to have to have a discussion about surgical intervention.”   \nAfter a hearing, an administrative law judge filed an opinion on \nDecember 15, 2023.  The administrative law judge found, among other \nthings, that the claimant proved she sustained a compensable injury.  The \nrespondents appeal to the Full Commission. \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... \narising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \n\nTINAJERO - H300652  11\n  \n \n \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).   \n An administrative law judge found in the present matter, “3.  \nClaimant has met her burden of proof by a preponderance of the evidence \nthat she sustained a compensable injury to her right shoulder on or about \nNovember 30, 2021, and is entitled to reasonable and necessary medical \ntreatment for that injury as recommended by Dr. Robert Benafield.”  The \nFull Commission finds that the claimant proved by a preponderance of the \nevidence that she sustained a compensable injury.   \n The claimant became employed with the respondents in 2015.  The \nclaimant testified that she was a “Sorter,” processing chickens for the \nrespondent-employer.  The parties stipulated that the employment \nrelationship existed on or about November 30, 2021.  The claimant testified \nthat, while operating a machine for the respondents, she “felt something hot \non my shoulder all the way to the elbow....I told the supervisor that my arm \nwas burning a lot.”  The claimant began treating with a company nurse on \nDecember 8, 2021, who reported only pain in the claimant’s right elbow.  A \nphysical therapist reported on December 10, 2021 that the claimant was \nsuffering with pain in her “Upper Extremity.”  The physical therapist \nexpressly noted on December 20, 2021 that the pain was radiating “from \nshoulder to outer arm.”   \n\nTINAJERO - H300652  12\n  \n \n \n The claimant began treating at Arkansas Occupational Medicine \nServices on January 5, 2022.  At that time, a physician’s assistant reported \nthat that claimant had overworked her elbow “and shoulder” while \nprocessing chicken for the respondents.  The claimant was treated \nconservatively.  The company nurse reported on January 26, 2022 that the \npain was “shooting into her shoulder.”  Beginning January 12, 2023, \nCandise Bostedt, RN noted that the claimant was suffering from pain in her \nright shoulder as the result of an incident occurring November 30, 2021.   \n Dr. Benafield treated the claimant’s right shoulder with injections and \nassessed “Impingement syndrome of right shoulder region.”  On August 7, \n2023, Dr. Benafield reported that an MRI showed “low-grade partial-\nthickness articular surface tear of the infraspinatus intrasubstance tear of \nthe distal supraspinatus and some degenerative changes of the AC joint \nand a type II acromion.”   \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it seems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).   \n\nTINAJERO - H300652  13\n  \n \n \n In the present matter, the Full Commission finds that the claimant \nwas a credible witness.  The claimant has been employed with the \nrespondents since 2015 and continues to work for the respondents.  The \nclaimant testified that she began feeling a burning “on my shoulder all the \nway to my elbow” while performing employment services on or about \nNovember 30, 2021.  When she was allowed to see a physician at \nArkansas Occupational Medical Services on January 5, 2022, a physician’s \nassistant corroborated the claimant’s testimony that she felt a burning in her \nright shoulder as the result of her Sorter duties for the respondents.  The \nclaimant has continued to receive conservative medical treatment as a \nresult of her work-related shoulder complaints.   \n The Full Commission finds that the claimant proved she sustained a \n“compensable injury” in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(i)(Repl. 2012).  The claimant proved that she sustained an \naccidental injury causing physical harm to the body.  The claimant proved \nthat she injury arose out of and in the course of employment and required \nmedical services.  The injury was caused by a specific incident and was \nidentifiable by time and place of occurrence on or about November 30, \n2021.  The claimant also established a compensable injury by medical \nevidence supported by objective findings, namely Dr. Benafield’s report of a \npartial-thickness tear in the claimant’s right shoulder.  We find that this \n\nTINAJERO - H300652  14\n  \n \n \npartial-thickness tear was causally related to the November 30, 2021 \ncompensable injury and was not the result of a prior injury or pre-existing \ncondition.     \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she sustained a compensable injury to her right \nshoulder.  The claimant proved that the medical treatment of record \nprovided in connection with the claimant’s right shoulder injury, including \ntreatment provided by Dr. Benafield, was reasonably necessary in \naccordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  For prevailing \non appeal to the Full Commission, the claimant’s attorney is entitled to a fee \nof five hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-\n715(b)(Repl. 2012).   \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion.  In my de novo review \nof the file, I find that the claimant has failed to prove by a preponderance of \n\nTINAJERO - H300652  15\n  \n \n \nthe evidence that she suffered a compensable right shoulder injury on \nNovember 30, 2021. \nThe claimant in this matter alleges that she suffered an injury to her \nright shoulder when removing a little piece like a nerve from a chicken fillet \nwhile working for the respondent employer on November 30, 2021.  (Hrng. \nTr., P. 8).  When the claimant presented to the nurse’s station and \nsubmitted a Statement of Injury on December 8, 2021, the claimant \nreported a burning, painful sensation in her right elbow.  (Resp. Ex. 2, P. 1). \nWhile the claimant’s native language is Spanish and the form was in \nEnglish, an interpreter assisted the claimant in completing her paperwork. \n(Hrng. Tr., P. 19). \nThe claimant underwent on-site physical therapy before being sent to \nArkansas Occupational Health Center (AOHC) for an evaluation.  (Cl. Ex. 1, \nPp. 12-14).  The claimant was once again assisted by an interpreter and \nstated that her primary problem was pain in her right elbow.  (Resp. Ex. 1, \nP. 4).  PA-C Ceth Dawson fully examined the claimant and noted that her \nright shoulder was normal.  (Resp. Ex. 1, Pp. 4-6).  \nWhen the claimant later complained that the pain had gotten worse, \nPA-C Dawson issued a forearm strap and referred the claimant to physical \ntherapy.  (Resp. Ex. 1, Pp. 9-10).  At this January 12, 2022 appointment, \nPA-C Dawson examined the claimant and once again found that her \n\nTINAJERO - H300652  16\n  \n \n \nshoulder was normal.  (Resp. Ex. 1, P. 8).  The claimant was ultimately \nreleased to return to work on February 16, 2022.  (Resp. Ex. 1, P. 19) \nThe claimant later saw Dr. Robert Benafield at Ozark Orthopaedics \nwhere, in December of 2022, he performed a physical examination and \nconcluded that the claimant had a good range of motion in her right \nshoulder and that she did not exhibit any obvious signs of pain.  (Cl. Ex. 1, \nP. 48).  \nIt was not until March 1, 2023, that Dr. Benafield diagnosed the \nclaimant with impingement syndrome in her right shoulder.  (Cl. Ex. 1, P. \n53).  An MRI revealed a “low-grade partial thickness articular surface tear of \nthe infraspinatus intrasubstance tear of the distal supraspinatus and some \ndegenerative changes of the AC joint and a type II acromion.” (Cl. Ex. 1, P. \n65-66).  Dr. Benafield has opined that the claimant does not need surgery \nto treat her shoulder.  Id.  \nAfter a hearing on September 25, 2023, an administrative law judge \n(ALJ) ruled that the claimant has met her burden of proving that she \nsustained a compensable right shoulder injury on November 30, 2021.  \nArkansas Code Annotated section 11-9-102 (4)(A)(i) provides that a \ncompensable injury includes “[a]n accidental injury causing internal or \nexternal physical harm to the body. . . An injury is ‘accidental’ only if it is \n\nTINAJERO - H300652  17\n  \n \n \ncaused by a specific incident and is identifiable by time and place of \noccurrence.”  \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  This, therefore, requires that a claimant establish by a \npreponderance of the evidence:  (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external \nphysical harm to the body which required medical services or resulted in \ndisability or death; (3) medical evidence supported by objective findings \nestablishing an injury as defined in Ark. Code Ann. §11-9-102(16) and; (4) \nthat the injury was caused by a specific incident identifiable by time and \nplace of occurrence.  Ark. Code Ann. § 11-9-102(4)(A)(i). \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\" Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16).  \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \n\nTINAJERO - H300652  18\n  \n \n \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  \nThe Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony that it deems worthy of belief. \nWhite v. Gregg Agricultural Enterprises, 72 Ark. App. 309, 37 S.W.3d 649 \n(2001). \nIn the present case, the claimant did not report any shoulder \ncomplaints when she presented to the Tyson facility nurse on November \n30, 2021.  (Cl. Ex. 1, P. 1).  At that time, she stated that she was “sorting \nchicken and the right elbow started feeling hot and became painful.  Started \napprox. one week ago, but she thought it was just overworked that day and \nwas tired.”  Id.  \nDespite numerous encounters with Tyson’s nursing staff regarding \nher right arm and wrist beginning on December 8, 2021, the claimant did \nnot mention shoulder pain until January 12, 2023, well over two years after \nthe alleged injury.  (Cl. Ex. 1, Pp. 1-4).  The claimant reported “[d]iscomfort \nand tension with inflammation of lateral epicondyle” in her History and \nPhysical dated December 10, 2021 (Resp. Ex. 1, P. 1).  \nPrior to notifying the respondent employer of her alleged shoulder \ninjury, the claimant visited Ozark Orthopedics on September 27, 2022, \n\nTINAJERO - H300652  19\n  \n \n \nwhere she denied any injuries causing right arm and shoulder pain, stating \nthat her pain only started three days prior to that appointment.  (Cl. Ex. 1, P. \n20).  \nOn the basis of the medical records alone, it is obvious that the \nclaimant did not suffer a compensable right shoulder injury on November \n30, 2021.  There is simply no evidence that this issue was mentioned in the \ndays, weeks, or years following her initial complaints of right elbow pain. \nThe claimant’s claim should be rejected on this basis alone.  However, for \nthe ALJ, this matter came down to a question of the claimant’s credibility. \nIn workers’ compensation cases, a decision often rests solely on the \ncredibility of the claimant as a witness.  A determination of the weight and \ncredibility of a witness' testimony is exclusively within the province of the \nCommission.  Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 \n(1989).  The Commission has the right to believe or disbelieve the \ntestimony of any witness, and the Commission's decision is entitled to the \nweight we give a jury verdict.  Tyson Foods, Inc. v. Disheroon, 26 Ark. App. \n145, 761 S.W.2d 617 (1988).  Importantly, a claimant’s testimony is never \nuncontroverted.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d \n457 (1994). \nIn his order, the ALJ relies on two points in judging the claimant to be \na credible witness:  (1) a note from the claimant’s second physical therapy \n\nTINAJERO - H300652  20\n  \n \n \nsession stating, “nothing was mentioned about her arm and shoulder \ndiscomfort this session”, and (2) the fact that the Statement of Injury form \nwas in English while the claimant’s primary language is Spanish.  (P. 6; see \nalso Resp. Ex. 1, P. 3, Resp. Ex. 2, P. 1).  This determination is flawed from \nthe outset.  \nAlthough Spanish is the claimant’s first language, a translator was \npresent to read the Statement of Injury form to the claimant and to translate \nthat response to nursing staff.  (Hrng. Tr., Pp. 19-23).  Further, the physical \ntherapy report states that there was “nothing stated regarding arm or \nshoulder discomfort” during the claimant’s December 13, 2021 session. \n(Resp. Ex. 1, P. 3).  \nThe ALJ’s findings and assumption that the claimant reported a \nshoulder injury because of an entry noting that nothing was mentioned \nabout her arm and shoulder during a physical therapy treatment is \nunfounded speculation.  The claimant not mentioning shoulder discomfort \nduring physical therapy is not, itself, evidence of a shoulder injury.  There is \nno evidence in the record supporting this assumption, and the ALJ is \nsubstituting his own conjecture for evidence.  Speculation and conjecture \ncannot substitute for credible evidence.  Smith-Blair, Inc. v. Jones, 77 Ark. \nApp. 273, 72 S.W.3d 560 (2002). \n\nTINAJERO - H300652  21\n  \n \n \nThe claimant repeatedly demonstrates that she is not a credible \nwitness.  Not only does her self-serving testimony directly contradict the \nfacts in the record, but she has apparently been untruthful to her treating \npractitioners on multiple occasions.  In her testimony, the claimant states \nthat she repeatedly informed Tyson’s medical staff that she was suffering \nfrom right shoulder pain, and this information never made it into her \nrecords.  (See Hrng. Tr., Pp. 16-23).  This strains credibility.  \nWhile a single incident of an error in medical records is not unheard \nof, it seems unlikely that the same error would occur on numerous \noccasions while speaking with different practitioners and with different \ntranslators.  Further, if the claimant did indeed injure her shoulder on \nNovember 30, 2021, then she did not give a truthful history to Ozark \nOrthopaedics in September of 2022 when she reported that she had \nsuffered no injury and that her pain began three days prior.  (Cl. Ex. 1, P. \n20).  \nThis issue arose again when the claimant informed Tyson nurses \nthat her doctor instructed her to obtain an injection if she was experiencing \npain.  (Cl. Ex. 1., P. 3).  However, after attempting to verify this information \nwith Trinity Rehabilitation and AOHC, Tyson’s medical staff determined that \nthe claimant had received no such direction.  Id.  The claimant is not a \ncredible witness, and we must disregard her testimony. \n\nTINAJERO - H300652  22\n  \n \n \nBecause the claimant’s testimony is unreliable and her statements \ncannot be trusted, we are left to rely only on the facts found in the medical \nrecords in this matter.  Those records reflect that the claimant did not so \nmuch as mention her right shoulder until September of 2022 and did not \ninform her employer of any issues regarding her shoulder until January of \n2023, well over two years from the date of the alleged injury.  The first \nmention of the claimant’s shoulder was to Ozark Orthopaedics, and the \nclaimant stated that her shoulder pain had only begun in September of \n2022.  \nThere is simply no evidence that the claimant suffered a right \nshoulder injury on November 30, 2021. \nAccordingly, for the reasons set forth above, I must dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":32454,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H300652 LORENA TRUJILLO-TINAJERO, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYNET CORPORATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 13, 2024","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","repetitive","wrist","carpal tunnel","back"],"fetchedAt":"2026-05-19T22:29:45.286Z"},{"id":"alj-H305360-2024-06-13","awccNumber":"H305360","decisionDate":"2024-06-13","decisionYear":2024,"opinionType":"alj","claimantName":"Derick Gardner","employerName":null,"title":"GARDNER VS. PRODUCERS RICE MILLAWCC# H305360June 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GARDNER_DERICK_H305360_20240613.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GARDNER_DERICK_H305360_20240613.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H305360 \n \nDERICK A. GARDNER, EMPLOYEE       CLAIMANT \n \nPRODUCERS RICE MILL, EMPLOYER           RESPONDENT \n \nFARMINGTON CASUALTY CO./THE TRAVELERS  \nINDEMNITY COMPANY, CARRIER/TPA               RESPONDENT \n  \n \n \nOPINION FILED 13 JUNE 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 13 June 2024 in Pine Bluff, Arkansas. \n \nThe pro se claimant did not appear. \n \nMr. Guy Wade, Friday, Eldridge & Clark, LLP, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 13 June 2024. This case relates to an alleged workplace injury, \nsustained on or about 11 August 2023. A First Report of Injury was filed on 21 August 2023 \nand a Form 2 was filed the following day, denying the claim on statutory grounds.  \n On 24 January 2024, the respondents requested a dismissal of this matter for failure \nto prosecute the claim. See Exhibit No 1. A letter from the Commission to the claimant \ncommunicating that motion was dated 3 April 2024 and another letter setting a hearing on \nthe motion was dated 26 April 2024. The Commission’s file is absent any responsive \ncorrespondence from the claimant. I noted at the hearing that mailings from the \nCommission to claimants are sent via both First Class and Certified Mail with return \nreceipts requested. Returned mail is regularly appended to the Commission’s file. This \n\nD. GARDNER- H305360 \n2 \n \nclaim file includes only a return of the April 3\nrd\n Certified Letter that indicates its return as \n“unclaimed.”  \nThe respondents appeared on 13 June 2024, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of their \nmotion. And the claimant did not appear at the hearing to resist the dismissal of this claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2722,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H305360 DERICK A. GARDNER, EMPLOYEE CLAIMANT PRODUCERS RICE MILL, EMPLOYER RESPONDENT FARMINGTON CASUALTY CO./THE TRAVELERS INDEMNITY COMPANY, CARRIER/TPA RESPONDENT OPINION FILED 13 JUNE 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC)...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:44.316Z"},{"id":"alj-H202978-2024-06-13","awccNumber":"H202978","decisionDate":"2024-06-13","decisionYear":2024,"opinionType":"alj","claimantName":"Cameron Mccaskill","employerName":null,"title":"McCASKILL VS. DEPARTMENT OF CORRECTIONAWCC# H202978 & H205938June 14, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MCCASKILL_CAMERON_H202978-H205938_20240613.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCCASKILL_CAMERON_H202978-H205938_20240613.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H202978/H205938 \n \nCAMERON McCASKILL, EMPLOYEE       CLAIMANT \n \nDEPARTMENT OF CORRECTION, EMPLOYER          RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, TPA           RESPONDENT \n  \n \n \nOPINION FILED 14 JUNE 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 13 June 2024 in Pine Bluff, Arkansas. \n \nThe pro se claimant did not appear. \n \nMr. Charles McLemore appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 13 June 2024. This case relates to alleged workplace injuries, sustained \non or about 30 March 2022 (H202978) and 28 July 2022 (H205938). Forms for a First \nReport of Injury were filed on 18 April 2022 and 18 August 2022, respectively. A Form AR-2 \nwas filed for each claim on the same day as the First Report of Injury. On 1 June 2022, \nbetween the dates of the first alleged injury and the second, the claimant requested via \nemail to the Commission a hearing on the first claim. See Exhibit No 1. After the claimant \nfailed to provide to the Commission material responsive to a preliminary questionnaire, the \nmatter was returned to the Commission’s general files. A letter to that effect was addressed \nto the claimant and dated 21 November 2022. \n On 2 April 2024, the respondents moved for both matters to be dismissed without \nprejudice for the claimant’s failure to prosecute either claim. A letter from the Commission \n\nC. McCASKILL-H202978/H205938 \n2 \n \nto the claimant communicating that motion was dated 9 April 2024 and another letter \nsetting a hearing on the motion was dated 1 May 2024. The Commission’s file is absent any \nresponsive correspondence from the claimant. I noted at the hearing that mailings from the \nCommission to claimants are sent via both First Class and Certified Mail with return \nreceipts requested. Returned mail is regularly appended to the Commission’s file. This \nclaim file includes only a return of the April 9\nth\n and May 1\nst\n Certified Letters that indicate \nthat they were returned as “unclaimed.”  \nThe respondents appeared on 13 June 2024, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of their \nmotion. And the claimant did not appear at the hearing to resist the dismissal of this claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that these claims \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and these claims are DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3237,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H202978/H205938 CAMERON McCASKILL, EMPLOYEE CLAIMANT DEPARTMENT OF CORRECTION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT OPINION FILED 14 JUNE 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:46.384Z"},{"id":"alj-H306587-2024-06-11","awccNumber":"H306587","decisionDate":"2024-06-11","decisionYear":2024,"opinionType":"alj","claimantName":"Reginald Curtis","employerName":null,"title":"CURTIS VS. BUTTERBALL LLCAWCC# H306587June 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/CURTIS_REGINALD_H306587_20240611.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CURTIS_REGINALD_H306587_20240611.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H306587 \n \nREGINALD L. CURTIS,  Employee                                                        CLAIMANT \n \nBUTTERBALL LLC, Employer                                                                 RESPONDENT                                                        \n \nACE AMERICAN INSURANCE COMPANY                                            RESPONDENT                                                                                         \n \n \n OPINION/ORDER FILED JUNE 11, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by ZACH RYBURN,  Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This  case  comes  on  for  review  following  a  hearing  on respondent’s Motion to \nDismiss. \n On October 9, 2023, claimant filed Form AR-C alleging a compensable injury to \nhis  shoulder  on  August  10,  2023.    Claimant’s  claim  for  compensation  benefits  was \ncontroverted  by  the  respondent.    A  hearing  was  set  on  the  claimant’s  claim,  but  was \nsubsequently canceled.  Thereafter, claimant’s attorney filed a Motion to Withdraw which \nwas granted by Order dated March 5, 2024.  No further action was taken by the claimant \nto prosecute his claim. \nRespondent  filed  a Motion  to Dismiss on April  16,  2024,  and  a hearing  was \nscheduled on the respondent’s motion for June 3, 2024. Notice of the hearing was sent \nto  claimant at  his  last  known  address by  certified  mail and  was returned to  the \n\nCurtis – H306587 \n \n2 \n \nCommission  by  the  Post  Office  as “unclaimed” on  May  16,  2024.  Claimant  has  not \nresponded to the respondent’s motion and did not appear at the hearing. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nMotion to Dismiss should be and hereby is granted.  This dismissal is without prejudice \nand is pursuant to Commission Rule 099.13. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2285,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306587 REGINALD L. CURTIS, Employee CLAIMANT BUTTERBALL LLC, Employer RESPONDENT ACE AMERICAN INSURANCE COMPANY RESPONDENT OPINION/ORDER FILED JUNE 11, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansa...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:52:35.892Z"},{"id":"alj-H304560-2024-06-11","awccNumber":"H304560","decisionDate":"2024-06-11","decisionYear":2024,"opinionType":"alj","claimantName":"Patrick Drake","employerName":"Pig Trail Harley Davidson","title":"DRAKE VS. PIG TRAIL HARLEY DAVIDSON AWCC# H304560 June 11, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DRAKE_PATRICK_H304560_20240611.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DRAKE_PATRICK_H304560_20240611.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H304560 \n \nPATRICK DRAKE, Employee      CLAIMANT \n \nPIG TRAIL HARLEY DAVIDSON, Employer    RESPONDENT \n \nSUMMIT CONSULTING, LLC, Carrier/TPA     RESPONDENT \n \n \n OPINION FILED JUNE 11, 2024  \n \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in Springdale, \nWashington County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn July  19,  2023,  the claimant filed  an  AR-C  requesting  various  compensation  benefits \nin which he alleged injuries to his back on or about October 21, 2022. The claim was denied in \nits entirety.  \nThe  claimant,  through  his  attorney,  Mark  Peoples,  requested  a  hearing  on  September  5, \n2023. A prehearing conference was held on November 6, 2023, and a hearing was scheduled for \nJanuary 30, 2024. On December 4, 2023, Mr. Peoples withdrew the claimant’s hearing request, \nand  filed  a  Motion  to  Withdraw  as  Counsel.  The  Full  Commission  granted  the  motion  on \nDecember 5, 2023. No further action was taken regarding this claim. \n On December  29,  2023,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim  be  dismissed  for  lack  of  prosecution. The  respondents  mailed  the  claimant  a  copy  of  the \n\nDrake – H304560 \n \n-2- \nMotion  to  Dismiss  and  received  no  response  from  the  claimant.  A  hearing  was  scheduled  for \nApril 23,  2024.  Notice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt \nrequested  on March  4,  2024. United  States  Postal  Department  records  indicate  that  claimant \nreceived  and  signed  for  the  notice  on March 6,  2024.  Despite  having  received  notice  of  the \nscheduled  hearing,  the  claimant  failed  to  appear  at  the  hearing  and  has  failed  to  respond  to  the \nmotion in any form or manner. \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2971,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H304560 PATRICK DRAKE, Employee CLAIMANT PIG TRAIL HARLEY DAVIDSON, Employer RESPONDENT SUMMIT CONSULTING, LLC, Carrier/TPA RESPONDENT OPINION FILED JUNE 11, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2","denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:52:38.008Z"},{"id":"alj-H208296-2024-06-11","awccNumber":"H208296","decisionDate":"2024-06-11","decisionYear":2024,"opinionType":"alj","claimantName":"Laura Treadwell","employerName":"Pope County Judge","title":"TREADWELL VS. POPE COUNTY JUDGE AWCC# H208296 June 11, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TREADWELL_LAURA_H208296_20240611.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TREADWELL_LAURA_H208296_20240611.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H208296 \n \nLAURA TREADWELL, Employee CLAIMANT \n \nPOPE COUNTY JUDGE, Employer RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, Carrier RESPONDENT \n \n OPINION FILED JUNE 11, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Russellville, Pope \nCounty, Arkansas. \n \nClaimant represented by DANIEL E. WREN, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by JASON M. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On March  14,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at Russellville, \nArkansas.      A  pre-hearing  conference  was  conducted  on January  22,  2024,  and  a  Pre-hearing \nOrder  was  filed  on January  23,  2024.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on April 15, \n2022. \n 3. The claimant sustained a compensable injury to her back on or about April 15, 2022. \n 4. The claimant’s weekly compensation rates will be determined at a later date.  \n By agreement of the parties the issues to litigate are limited to the following: \n\nTreadwell – H208296 \n \n-2- \n 1. Whether Claimant is entitled to additional medical treatment in the form of an FCE as \nrecommended by Dr. Beavers, or whether Claimant is entitled to referral from Dr. Beavers to Dr. \nBrad Thomas or a similar neurosurgeon. \n The claimant's contentions are as follows: \n“Dr.  Beavers  has  ordered  a  functional  capacity  exam  for  the \nClaimant which the Respondents refuse to approve.” \n \n The respondents’ contentions are as follows: \n“All  appropriate  benefits  have  been  paid. The  claimant  has  been \nreleased  at  MMI  with  a  0%  impairment  rating.  An  FCE  is  not \nmedical  treatment,  nor  is  it  necessary.  The  respondents  have  paid \nfor   all   reasonable   and   necessary   medical   treatment   and   the \nrequested treatment is not reasonable or necessary.” \n \n The  claimant  in  this  matter  is  a 46-year-old  female who  worked  for  the  respondent  on \nApril  15,  2022,  when  she  sustained  a  compensable  back  injury.  At  that  time  the  claimant  was \nemployed  as  a  paramedic  for  the  respondent.  On  direct  examination  the  claimant  described  the \nApril 15, 2022, incident in which she sustained a compensable back injury as follows: \nQ All  right.  But  just  for  a  little  bit  of  background  for  the \nJudge, a two-minute summary of how you got hurt. \n \nA Me and my female partner were on a call in Hector about a \n275-pound   man   with   breathing   problems   that   needed   to   be \ntransported. When we put him on our cot, out cots are manual lift. \nThey  did  not  have  power  cots.  When  we  picked  the  cot  up,  my \npartner did not release the handle on the cot. It did not lock the legs \nin place and when the weight was put back down, the cot slammed \nto the ground and I was still holding it. I bent at the waist. \n \nQ And,  essentially,  you  were  touching  your  toes  with  your \nhands? \n \nA My head was close to my toes. \n \nQ Okay. Did you feel immediate pain? \n \n\nTreadwell – H208296 \n \n-3- \nA Yes, sir. \n \nQ All  right.  Did  you  seek  treatment,  file  a  workers’  comp \nclaim, let your supervisor know and get treatment for that claim? \n \nA Yes, sir. \n \n The  claimant  began  to  see  Dr.  Edward  Saer  at  Ortho  Arkansas  in  Little  Rock  on \nSeptember 9, 2022. Dr.  Saer provided the  claimant with conservative medical treatment for her \ncompensable back injury until November 29, 2022, when he released her at MMI and found no \npermanent  impairment  associated  with  her  compensable  injury.  Following  is  a  portion  of  Dr. \nSaer’s November 29, 2022, medical record: \nAssessment/Plan \n \nMs.  Treadwell  is  back  in  follow-up. She  is  an  EMT  and  had  a \nwork-related injury on April 15, 2022 lifting a patient on a cot. She \nhas  had  pain  in  her  lower  back  as  well  as  tightness  in  the  lower \nthoracic area since then. She continues to complain of the tightness \nin  her  back  especially  if  she  overdoes  things.  She  is  taking  a \nFlexen,  usually  in  the  afternoon,  although  not  every  day.  She  gets \nrelief  if  she  takes  the  Flexeril  and  lies  down  to  rest.  She  has \navoided doing  any heavy lifting and continues to work on a light-\nduty basis. \nShe  continues  to  take  naproxen  twice  daily.  She  is  using  OTC \nnaproxen now. She is continue with some exercising and stretching \nthat she learned in physical therapy. \nExam: \nShe  gets  up  and  down  easily  and  walks  normally.  She  has  good \nforward  pending  and  good  extension  although  extension  is  a  little \nuncomfortable.  Forward  bending is her position of comfort. There \nis no muscle spasm. She has no localized tenderness. \nHer prior imaging did not show any significant focal abnormalities \nno new x-rays were obtained today. \nAssessment: \nI had recommended an FCE but that was not approved. Therefore I \nthink she should continue with light duty level work with a lifting \nlimit  of  25  pounds,  and  no  repetitive  bending  twisting  or  lifting. \nThese restrictions should be considered permanent. \nShe is at MMI. There is no permanent impairment associated with \nthis injury. \n\nTreadwell – H208296 \n \n-4- \n \nDr. Saer also authored a letter to the respondent regarding the claimant’s medical treatment on \nNovember 29, 2022. The body of that letter follows: \nI saw Laura Treadwell in the office today. She has been treated for \nback  pain  following  an  injury  at  work.  As  far  as  I  can  determine \nshe had a lumbar strain or sprain. \n \nTreatment  was  based  on  the  recent  injury,  not  on  pre-existing \nchanges.  There  are  no  objective  findings  to  warrant  permanent \nimpairment  rating.  Work  restrictions  are  based  primarily  on  the \ninjury, not any pre-existing conditions. \n \nAs far as I can tell, this was an acute injury, although I did not see \nher until 3 months after the date of injury. \n \nI do not think any further treatment is needed at this time. \n \n After  being  released  by  Dr.  Saer,  the  claimant  admittedly  began  unauthorized  treatment \nfor  her  compensable  back  injury  with  her  PCP,  Dr.  Homer  Beavers at Millard  Henry  Clinic, \nunder her regular healthcare insurance. Dr. Beavers referred the claimant to Dr. Brad Thomas of \nLittle Rock Neurosurgery. \n On March 15, 2023, the claimant was seen by Dr. Thomas. Following is a portion of that \nvisit note: \nHPI:  This  is  a  45  year  old  female  who  is  being  seen  for  a  chief \ncomplaint  of  chronic  low  back  pain  involving  the  spine.  Context: \nan  injury  at  work  on  4/15/2022.  Details:  She  was  working  as  a \nparamedic.  She  and  her  partner  were  lifting  a  manual  cot  with  a \n275+ pound man on it. She was lifting the head. Her partner started \nto put the legs down but did not release the lock mechanism, so the \ncot  slammed  to  the  ground.  She  was  still  holding  the  cot  and \nbasically folded in half. She had an immediate pain in her low back \nand got sick on the scene. She reported it to her employer who sent \nher to urgent care where she got x-rays. They sent her home with a \nmuscle  relaxer  and  an  anti-inflammatory.  She  was  off  work  until \nshe  could  follow  up  with  occupational  medicine.  When  she  saw \nthem  they  had  her  start  PT.  About  a  week  into  PT  they  started \nadding exercises that made her pain worse and she had to stop PT. \n\nTreadwell – H208296 \n \n-5- \nEventually they ordered an MRI. She saw Dr. Saer who put her on \na  permanent  35  pound  restriction.  He  said  there  was  a  disc \nherniation  and  had  her  continue  PT.  She  felt  like  she  could  not \nhold  herself  up.  She  started  having  weakness  in  her  thighs.  Dr. \nSaer  ordered a  myelogram,  but  work  comp  refused  it.  He  tried  to \norder it again and it was refused again. The patient then found out \nthat  Dr.  Saer  was  a  deacon  and  friends  with  her  boss.  Once  she \nfound that out she felt like things changed. He ordered an FCE, but \nwork comp refused it. In the meantime she was working light duty \nin  the  courthouse.  In  December  she  got  a  letter  from  the  judge \nstating  he  was  terminating  her  position  because  she  was  on  a  35 \npound lift restriction and could no longer perform the duties of her \njob.  Then  she  got  a  letter  from  work  comp  telling  her  she  should \nget representation. She did not have any follow ups scheduled with \nDr. Saer. She got one check from worker’s comp. In January she \nbent over to look at a label on a shelf in CVS and her left leg went \nnumb. She fell into the shelf. She went home and sat down. Later \nthat night she noticed her rumba was not working properly and she \nbent over to check it out. She had the same symptoms again at that \ntime. She contacted her lawyer who told her to see her PCP, so she \nsaw Dr. Beavers and he referred her to us. A week after she started \nhaving   symptoms   in   January   she   had   an   episode   of   urinary \nincontinence.   This   has   happened   several   times,   but   is   not \nconsistent. It seems to happen on days when her back pain is at its \nworst. She has been transferred by the county and is now working \nat the Assessor’s office where she makes significantly less. She \nreports the following pertinent positives: urinary incontinence. \n \n*** \nImpression/Plan: \n1. Low back Pain (new Dx) \n \nLocated on the lumbar spine \nAssociated  diagnoses:  Intervertebral  Disc  Degeneration,  Lumbar, \nLeg Pain, and Numbness \n \nPlan: Other \nShe has been having low back pain since an injury at work in April \nof  2022.  She  started  having  symptoms  again  in  January  that  she \nbelieves  is  related  to  her  work  injury.  She  and  her  lawyer  need  to \nget the notes from Dr. Saer then contact worker’s comp and tell \nthem she wants to re-open her case and change physicians. We are \ngoing to order a new MRI and have her follow up. \n \n\nTreadwell – H208296 \n \n-6- \nThere is a worker’s comp rep present in clinic today, but since this \nis not technically a worker’s comp visit, we did not speak with the \nrep. The rep was not in the room with the patient during the visit. \n \nPlan: Order MRI – Spine \nProtocol – Lumbar – Spine – Lumbar  MRI  WC,  contrast  (CPT: \n72149) \nIndication: Low Back Pain – M54.50, M51.36, M79.605, R20.0 \n \n The claimant was again seen by Dr. Thomas on April 7, 2023. Following is a portion of \nthat visit note: \nHPI:  This  is  a  45  year  old  female  who  is  following  up  for  Low \nBack  Pain  (low  back  pain,  unspecified)  on  the  lumbar  spine.  She \nwas  seen  on  March  15,  2023,  at  which  time  MRI  Interpretation \nLumbar Spine was performed and \n \nShe has been having low back pain since an injury at work in April \nof  2022.  She  started  having  symptoms  again  in  January  that  she \nbelieves  is  related  to  her  work  injury.  She  and  her  lawyer  need  to \nget  the  notes from Dr. Saer then contact worker’s comp and tell \nthem she wants to re-open her case and change physicians. We are \ngoing to order a new MRI and have her follow up. \n \nThere was a worker’s comp rep present in clinic today, but since \nthis is not technically a worker’s comp visit, we did not speak with \nthe  rep.  The  rep  was  not  in  the  room  with  the  patient  during  the \nvisit. \n \nOrder MRI – Spine was performed. \n \nThe patient presents for imaging results and she is doing about the \nsame with back pain, she can manage as long as she doesn’t do any \nreal activity. She is unsure if workers comp has been reopened but \nthis is all going on from work accident in April 2022. \n \n*** \nTests \nMRI Interpretation Lumbar Spine \n \nMRI Data: \nDate: 04/07/2023 MRI L-spine without gadolinium \n \n\nTreadwell – H208296 \n \n-7- \nMRI   of   the   lumbar   spine   was   obtained,   demonstrating   the \nfollowing   findings:   mild   degenerative   changes,   no   sig   canal \nstenosis or impingement. \n \nImpression/Plan: \n1. Low Back Pain \n \nLocated on the lumbar spine \nAssociated  diagnoses:  Intervertebral  Disc  Degeneration,  Lumbar, \nLeg Pain, and Numbness \n \nPlan: Other \nThere  is  no  surgery  recommended  for  her  low  back,  she  does  still \nhave numbness in her left leg with certain positions. She has been \navoiding those positions, we are going to get EMG/NCV of the left \nand f/u after. We did discuss pain management and trying some of \ntheir  treatments  to  help  with  her  pain.  We  will  get  the  EMG  and \nthen can discuss further options. \n \nPlan: Consult \nI  counseled  the  patient  regarding  the  following  need  to  see  the \nspecialist: \nOther Details: Refer to pain management for eval/treat \nWe discussed the need to see another medical specialist to assist in \nthe current diagnosis and treatment. The patient was advised to call \nthe   office   of   the   specialist   to   set   up   an   appointment   for \nconsultation. Delay in this may lead to poor outcomes. \n \n The  claimant  was  again  seen  by  Dr.  Thomas  on June  7,  2023.  Following  is  a  portion  of \nthat visit note: \nHPI:  This  is  a  45  year  old  female  who  is  following  up  for  Low \nBack  Pain  (low  back  pain,  unspecified)  on  the  lumbar  spine.  She \nwas  seen  on  April  27,  2023,  at  which  time  MRI  Interpretation \nLumbar Spine was performed and \n \nThere  is  no  surgery  recommended  for  her  low  back,  she  does  still \nhave numbness in her left leg with certain positions. She has been \navoiding those positions, we are going to get EMC/NCV of the left \nand f/u after. We did discuss pain management and trying some of \ntheir  treatments  to  help  with  her  pain.  We  will  get  the  EMG  and \nthen can discuss further options. \n \nConsult was performed. \n\nTreadwell – H208296 \n \n-8- \n \nOrder EMG/NCV was performed. \n \nThe   patient   presents   for   EMG   results   and   she   has   left   leg \nnumbness.  This  is  related  to  a  work  accident  April  2022  as  a \nparamedic.  Her  symptoms  are  weakness  and  pain  in  the  low  back \nmore on the left, since January she will have incontinence and the \nleft foot/leg numbness with increased activity. \n \n*** \nImpression/Plan: \n1. Low Back Pain \n \nLocated on the lumbar spine \nAssociated  diagnoses:  Intervertebral  Disc  Degenerations,  Lumbar, \nLeg Pain, and Numbness. \n \nPlan: Other \nThere  is  no  surgery  recommended  for  her  low  back  based  on  the \nMRI  and  the  EMG.  She  does  have  some  mild  left  radicular \nneuropathy. She is unable to do her job as a paramedic and is doing \na light duty job. She will continue her current work status. She is a \nyear  out  from  the  work  accident  and  we  do  feel  her  continued \nsymptoms are related to the work accident. We are going to get an \nFCE to evaluate her long term work status. We will order this and \nf/u after to determine her impairment rating. \n \nPlan: Order Tests. \nLabs: \n46634-2 – Functional capacity assessment (RFC) \n \n On  September  13,  2023,  the  claimant  requested  a  change  of  physician  from  the \nCommission  to  Dr.  Beavers.  That  change  of  physician  was  granted  by  the  Commission  on \nSeptember 22, 2023. \nOn  October  5,  2023,  the  claimant  returned  to  see  her  PCP,  Dr.  Beavers.  Following  is  a \nportion of the medical records from that visit: \nHPI \nLaura presents today from the standpoint to address workman’s \ncomp issues. \n\nTreadwell – H208296 \n \n-9- \nShe  was  injured  in  April  of  2022  in  a  lifting  incident  while \nworking  as  an  EMT.  She  presents  in years  previous  with  left  hip \npain, and there was some question of whether her symptoms were \nradicular  or  not.  At that  time  she  did  undergo  an  MRI  and  in  the \nbody  of  the  interpretation  of  that  MRI  was  noted  that  at  L4-5  she \nhad a small right sided disc protrusion. \nThe  ligamentous  pain  that  she  was  experiencing  in  her  left  hip  at \nthat time resolved. \nFrom 2018 to 2022 I have not had any visits with her where there \nwas any complaint of back pain. \n \nAssessment/Plan \n1. Backache \nVariable in intensity of daily...she has daily pain and takes nsaids \ndaily but still has pain related as a 3-6/10...she is no longer able to \ndo  her  prior  job  as  an  EMT  that  was  significantly  physically \ndemanding...she now is  working  in  the  court  house  as  a  clerical \nposition  which  obviously  does  not  pay  as  well  as  her  EMT \nposition...since the injury occurred on the job in her EMT position \nshe is seeing compensation through workmans compensation...she \nneeds  to  have  a  work  physical  capacity  evaluation...M54.9: \nDorsalgia, unspecified. \n \n On March 1, 2024, Dr. Beavers authored a letter regarding the claimant. Following is the \nbody of that letter: \nI  referred  Laura  Treadwell  to  Dr.  Brad  Thomas  on  February  22, \n2023 for an evaluation of ongoing radicular pain into her left lower \nextremity.   Dr.   Brad   Thomas,   a   board   certified   neurosurgeon \nordered  an  EMG  nerve  conduction  velocity  that  revealed  that  she \nhad  left  proximal  sciatic  neuropathy.  Ms.  Treadwell  was  being \nseen  both  by  me  and  Dr.  Thomas  under  her  health  insurance.  Her \nhealth   insurance   would   not   pay   for   her   continued   treatment \nrecommended by Dr. Thomas. I do feel that referral to Dr. Thomas \nfor  a  radicular  type  pain  with  an  abnormal  MRI  was  appropriate. \nFurther  based  upon  EMG  nerve  conduction  results  I  continue  to \nbelieve  that  Ms.  Treadwell  needs  to  be  able  to  continue  her \ntreatment    with    Dr.    Thomas    and/or    an    equally    qualified \nneurosurgeon/orthopedic spine specialist. \n \nThe claimant has asked the Commission to determine whether she is entitled to additional \nmedical  treatment  in  the  form  of  an  FCE  as  recommended  by  Dr.  Beavers,  or  whether  the \n\nTreadwell – H208296 \n \n-10- \nclaimant  is  entitled  to  the  referral  from  Dr.  Beavers  to  Dr.  Brad  Thomas,  or  a  similar \nneurosurgeon. The claimant has the burden of proving the additional medical treatment she has \nrequested  is  reasonable  and  necessary  medical  treatment. Employers  must  promptly  provide \nmedical  services  which  are  reasonably  necessary  in  connection  with  the  compensable  injuries, \nArk.  Code  Ann.  §11-9-508(a).    However,  injured  employees  have  the  burden  of  proving  by  a \npreponderance of the evidence that medical treatment is reasonably necessary.  Patchell v. Wal-\nMart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31  (2004).    What  constitutes  reasonable  and \nnecessary  medical  treatment  is  a  fact  question  for  the  Commission,  and  the  resolution  of  this \nissue  depends  upon  the  sufficiency  of  the  evidence.   Gansky  v.  Hi-Tech  Engineering,  325  Ark. \n163, 924 S.W.2d 790 (1996). \n The claimant in this matter does continue to work for the respondent but works in a light \nduty, desk  type  position.  Given  the  permanent  restrictions  placed  on  her  by  Dr.  Saer  after  the \nrespondent refused to pay for an FCE, she was unable to return to work in her former profession \nas a paramedic. “I had recommended an FCE but that was not approved. Therefore I think she \nshould  continue  with  light  duty  level  work  with  a  lifting  limit  of  25  pounds,  and  no  repetitive \nbending, twisting or lifting. These restrictions should be considered permanent.” From Dr. Saer’s \nmedical records, it is clear that he placed those restrictions himself without the benefit of an FCE \nbecause the respondent denied the FCE that he had recommended. \n The  claimant  is  clearly  frustrated  by  her  inability  to  receive  an  FCE. Her testimony \nduring cross examination by the respondent attorney shows that frustration as follows: \nQ [BY  MR.  RYBURN]:  And  you  were  released,  as  you \ntestified earlier, with permanent restrictions; correct? \n \nA Yes, sir. \n \n\nTreadwell – H208296 \n \n-11- \nQ Do   you   believe   that   you   can   do   more   than   those \nrestrictions? \n \nA No, sir. \n \nQ  Do  you  believe  that  you  can  do – that  those  restrictions \nshould be removed? \n \nA No, sir. \n \nQ What do you think an FCE will accomplish, then? \n \nA My goal is to be compensated for the wage loss that I have \nincurred because of a documented work comp injury. \n \nQ So in fact, you disagree with that 0 percent and the FCE is \nsimply a way to get a different rating? \n \nA Yes, sir. \n \nQ Okay.  You  understand  that  Dr.  Thomas  stated  that  you – \nthat  is  on  Page  33  of  your  Exhibit – suffered  from  intervertebral \ndisc degeneration? \n \nA Sure. \n \nQ Okay. And you did have a prior low back workers’ comp \ninjury before this one; correct? \n \nA Yes, sir. \n \nQ Do you know what degeneration means? \n \nA Yes, sir. \n \nQ  Do you understand that my client accepted your claim as an \naggression of that preexisting condition? \n \nA No, sir. \n \nQ Do you understand what an FCE is? \n \nA Yes, sir. \n \nQ Okay. And you understand that it is not medical treatment? \n\nTreadwell – H208296 \n \n-12- \n \n MR. WREN: Objection. Your Honor. \n \n THE COURT: Sustained. I will decide. \n \nQ [BY MR. RYBURN]: Can you explain your understanding \nof an FCE. \n \nA To see what I am capable of doing. \n \nQ Okay. And you are currently working? \n \nA Yes, sir. \n \nQ And your job falls under your permanent restrictions? \n \nA Yes, sir. \n \nQ And you don’t think that you can do anything above those \nrestrictions? \n \nA Not full time, no, sir. \n \nQ So if you had an FCE and they said that you could do more \nthan those restrictions, would you return to a heavier duty job? \n \nA I can’t make that decision at this moment. \n \nQ Okay.  But  it  is  your  testimony  and  you  told  me  in  your \ndeposition that you don’t think you can do anything above those \nrestrictions; correct? \n \nA There is a lot of things I am not able to do, yes, sir. \n \nQ So  you  agree  with  the  restrictions,  but  not  the  impairment \nrating? \n \nA Yes, sir. \n \nQ And  Dr.  Thomas  has  not  given  you  an  impairment  rating; \ncorrect? \n \nA Not that I am aware of. \n \n It  is  certain  that  the  claimant  has  a  desire  to  seek  financial  compensation  for  her \n\nTreadwell – H208296 \n \n-13- \ncompensable back injury, as I am certain most every injured worker does. That desire, however, \ndoes  not  change  the  fact  that  the  respondent’s  chosen  orthopedic  surgeon,  Dr.  Saer; the \nclaimant’s PCP, Dr. Beaver; and  a  neurosurgeon,  Dr.  Thomas, who  has  treated  the  claimant, \nhave all recommended an FCE that the respondent has refused to authorize. \n In Gansky,  supra, the  Supreme  Court  of  Arkansas  dealt  with  a  very  similar  case.  The \nclaimant in that matter had some pre-existing back issues, but suffered a compensable injury, as \nis  the  case  at  hand.  The  ALJ  had  ordered  the  respondent  to  provide  the  FCE that  was \nrecommended by his treating physician but was reversed by the Full Commission, which found \nthe FCE was not reasonable and necessary medical treatment for the claimant’s compensable \ninjury. The Arkansas Court of Appeals in a 3-3 decision upheld the Full Commission’s decision. \nThe  Supreme  Court  reversed  the  Court  of  Appeals.  In  the Gansky case  the  doctor  ordered  an \nFCE but refrained from releasing him until it was complete. The respondent then refused to pay \nfor the FCE and a final evaluation by the doctor, who was a neurosurgeon, was never made. The \nCourt believed the Full Commission relied upon physical therapist’s reports as opposed to those \nof the doctor. The Court stated, “Under these circumstances when the treating neurosurgeon has \nprescribed  a  functional  capacity  assessment  and  that  was  not  done  because  Hi-Tech  (the \nrespondent) would not pay for it, we cannot agree with the Commission that additional medical \ntreatment was not reasonable, necessary, or that the healing period had ended. We conclude that \nfair-minded persons, viewing the same evidence, could not decide otherwise.” \n In  the  present  case  there  are  no  physical  therapist  reports,  but  Dr.  Saer,  an  orthopedic \nsurgeon,  ordered  an  FCE  that  was  refused  by  the  respondent.  Then  after  that  refusal,  he  placed \nrestrictions and released the claimant at MMI. Dr. Beavers, the claimant’s PCP, ordered an FCE \nafter  the  claimant  was  released  by  Dr.  Saer.  Finally,  on  June  7,  2023,  Dr.  Thomas,  a \n\nTreadwell – H208296 \n \n-14- \nneurosurgeon   who   has   treated   the   claimant,   recommended   an   FCE. Despite   all   three \nrecommendations, the respondent has refused to provide the FCE. In fact, the respondent makes \nclear in this hearing transcript that it does not believe an FCE is even medical treatment.  \nQ Ms.  Treadwell,  so  far  both  neurosurgeons  that  have  seen \nyou have said that you do not need surgery. Isn’t that true? \n \nA Yes, sir. \n \nQ So no one plans to do any surgery or treatment at this time; \nis that correct? \n \nA Not at this time. \n \nQ And you don’t know of any treatment, medical treatment \nthat you need at this time beyond the FCE? \n \nA I am not aware of any. \n \n MR.  RYBURN:  Okay.  And  just  for  the  record,  I  am  not \nconceding that an FCE is medical treatment. \n \nCertainly,  the Court  in Gansky believed  an  FCE  to  be  medical  treatment.  Here  we  have  three \nmedical  providers,  all  doctors,  all  recommending  an  FCE  for  the  claimant;  two  of  which \nspecialize in the type of compensable back injury the claimant has suffered. \n As  previously  stated,  the Gansky case  is  similar  to  this  case  but  admittedly  there  are \ndifferences, as  in  all  cases.  I  find  that  the  claimant  is  able  to  prove  by  a  preponderance  of  the \nevidence  that  the  FCE  ordered  by  Dr.  Saer,  Dr.  Beavers,  and  Dr.  Thomas  is  reasonable  and \nnecessary medical treatment for the claimant’s compensable back injury. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n\nTreadwell – H208296 \n \n-15- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJanuary  22,  2024,  and  contained  in  a  Pre-hearing  Order  filed January  23,  2024,  are  hereby \naccepted as fact. \n 2. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nadditional medical treatment in the form of an FCE. \n ORDER \nThe  respondents  in  this  matter  shall  pay  for  the  costs associated  with  the  FCE  that  has \nbeen recommended by the claimant’s current treating physician through a change of physician, \nDr. Beavers. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":27746,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H208296 LAURA TREADWELL, Employee CLAIMANT POPE COUNTY JUDGE, Employer RESPONDENT AAC RISK MANAGEMENT SERVICES, Carrier RESPONDENT OPINION FILED JUNE 11, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope County, Arkansas. Clai...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","thoracic","repetitive","lumbar","strain","sprain","hip"],"fetchedAt":"2026-05-19T22:52:40.091Z"},{"id":"alj-G306587-2024-06-11","awccNumber":"G306587","decisionDate":"2024-06-11","decisionYear":2024,"opinionType":"alj","claimantName":"Terry Talley","employerName":null,"title":"TALLEY VS. ENTERGY OPERATIONS, INC.AWCC# G306587June 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TALLEY_TERRY_G208012_20240611.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TALLEY_TERRY_G208012_20240611.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G306587 \n \nTERRY TALLEY,  Employee                                                                          CLAIMANT \n \nENTERGY OPERATIONS, INC., Self-Insured Employer                          RESPONDENT                     \n \n                                                                                                                          \n \n OPINION/ORDER FILED JUNE 11, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented  by  LAURA  J.  MCKINNON,  Attorney,  Fayetteville,  Arkansas; \nalthough not present at hearing. \n \nRespondents represented by KAREN H. MCKINNEY,  Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n Claimant   suffered   an   admittedly   compensable   injury   on   July   24,   2012.  \nRespondent  paid  compensation  benefits  including  medical  benefits  and  an  impairment \nrating.  Numerous AR-Cs were filed in this case on July 24, 2014; September 4, 2015; \nand August 1, 2017.  No hearing has been requested with respect to this claim. \n On May 1, 2024, respondent filed a Motion to Dismiss.  A hearing was scheduled \non the respondent’s motion for June 3, 2024.  In response to the respondent’s motion, \nclaimant’s attorney sent an e-mail dated May 14, 2024, stating: \n  We have spoken to this client and he has no objection \n  to the Dismissal and we waive our appearance at a \n  hearing regarding the matter of the Motion to Dismiss. \n\nTalley – G208012 \n \n2 \n \n \n After my review of the respondent’s motion, the claimant’s response thereto, and \nall other matters properly before the Commission, I find that respondent’s motion  to \ndismiss this claim should be and hereby is granted.  This dismissal is without prejudice \nand is pursuant to Commission Rule 099.13. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2088,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G306587 TERRY TALLEY, Employee CLAIMANT ENTERGY OPERATIONS, INC., Self-Insured Employer RESPONDENT OPINION/ORDER FILED JUNE 11, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Claimant represented b...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:52:42.251Z"},{"id":"alj-H306174-2024-06-10","awccNumber":"H306174","decisionDate":"2024-06-10","decisionYear":2024,"opinionType":"alj","claimantName":"Alisha Cotton","employerName":null,"title":"COTTON VS. OUACHITA COUNTY MEDICAL CENTERAWCC# H306174June 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/COTTON_ALISHA_H306174_20240610.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COTTON_ALISHA_H306174_20240610.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H306174 \n \n \nALISHA COTTON, \nEMPLOYEE                                                                                                                 CLAIMANT \n                                                                                                           \nOUACHITA COUNTY MEDICAL CENTER,  \nEMPLOYER                                                                                                            RESPONDENT \n \nAHA WORKERS’ COMPENSATION SIT,   \nINSURANCE CARRIER                                                                                        RESPONDENT     \n  \nRISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR (TPA)                                                          RESPONDENT                                                                                                                             \n                                                                                                                                       \n                    \nOPINION FILED JUNE 10, 2024   \n \nHearing before  Administrative Law Judge Chandra  L.  Black, in El  Dorado, Union County, \nArkansas. \n \nThe Claimant, pro se, did not appear at the hearing.   \n \nRespondents represented by the Honorable Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \n                                                         Statement of the Case      \n \nA  hearing  was  held  on June 5,  2024, in  the  present claim for workers’ compensation \nbenefits pursuant to Dillard v. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d \n287 (2004), to determine whether the above-referenced matter should be dismissed for failure to \nprosecute  under  the  provisions  of  Ark. Code  Ann. §11-9-702 (Repl. 2012), and/or Arkansas \nWorkers’ Compensation Commission Rule 099.13.     \nAppropriate Notice of this hearing was served on all parties to their last known address, in \nthe manner prescribed by law.   \nNo testimony was taken during the dismissal hearing.   \n\nCOTTON – H306174 \n \n2 \n \n The record consists of the transcript of the June 5, 2024, hearing and the documents held \nthere.   Admitted into evidence was Commission’s Exhibit 1 consisting of four (4) pages of forms, \npleadings, and correspondence from the Commission’s file on the claim; and Respondents’ Exhibit \n1 comprising  of pleadings, correspondence,  unexecuted authorizations, discovery  requests, and \nvarious  other forms  related  to  this  claim, consisting  of ten (10) pages.   Moreover,  in  order  to  \nadequately address this matter under Ark. Code Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission \nmust “conduct the hearing  . . . in a manner which best ascertains the rights of the parties”), and \nwithout objection, I have blue-backed to the record, correspondence and accompanying documents \nfrom the Commission’s file on the claim, consisting of four (4) totaled pages.  In accordance with \nSapp  v.  Tyson  Foods,  Inc.,  2010  Ark.  App.  517,  ___  S.W.3d  ___,  these  documents  have  been \nserved on the parties in conjunction with this opinion. \n                                                          Procedural Background \nOn September 21, 2023, the Claimant’s former attorney filed with the Commission a claim \nfor Arkansas workers’ compensation benefits on behalf of the Claimant by way of a Form AR-C.  \nAccording to this document, the Claimant provided the following description of her alleged work-\nrelated accidental injury: “Claimant was injured during the course and scope of her employment.  \nClaimant sustained injuries to her right knee, right elbow, and other whole body.”  Per the Form \nAR-C,  the Claimant requested both initial and  additional workers’ compensation benefits.  The \ndate of the Claimant’s work-related accident happened on July 23, 2023.    \nThe respondent-carrier filed a Form AR-2 with the Commission on September 25, 2023, \nconfirming that they were accepting this matter as a medical only claim.  On that same day, the \nclaims specialist further notified the Commission’s Director Operations/Compliance, among other \nthings,  that  the  Claimant  was  working  her  normal  sedentary  duty.   She  also  informed  the \n\nCOTTON – H306174 \n \n3 \n \nCommission  that  there  were  not  any  known  issues  with  the  claim, and  that  all proper  medical \ntreatment was being paid.   \nSubsequently, there was no action taken on this claim.  \nTherefore, on January  12,  2024,  the Claimant’s attorney filed  with  the  Commission  a \nmotion to withdraw from representing the Claimant in this matter.  There being no objection to the \nmotion for the Claimant’s attorney to withdraw as counsel of record, the Full Commission entered \nan Order on February 8, 2024, granting the motion.      \nAfter this  action,  there  was  no  bona  fide  request  for  a  hearing  made  with  respect  to  this \nclaim.   \nConversely, on March 21, 2024, the Respondents filed a Motion to Dismiss for Failure to \nProsecute.  The Respondents’ attorney certified that a copy of the foregoing pleading was served \non the Claimant via U.S. Mail.  For their motion for dismissal, the Respondents primarily asserted \nthat the Claimant has not sought any type of bona fide hearing before the Workers’ Compensation \nCommission over the last six (6) months.   \nThe Commission sent a letter notice on March 25, 2024, to the Claimant informing her of \nthe Respondents’ motion for  dismissal  of  her  claim.  Said  letter was mailed to  the  Claimant  by \nboth first-class and certified mail.  Per this correspondence, the Claimant was given a deadline of \ntwenty (20) days for filing a written response to the Respondents’ motion to dismiss.  \nInformation received by the Commission from the United States Postal Service shows that \nthey delivered this item to the Claimant.  The electronic return receipt bears the Claimant’s printed \nname, as well as her cursive signature.  Moreover, the letter notice mailed to the Claimant via first-\nclass mail has not been returned to the Commission.  \nYet, there has been no response from the Claimant in this regard.  \n\nCOTTON – H306174 \n \n4 \n \nSubsequently, on April 25, 2024, the Commission sent an Amended Notice of Hearing to \nthe parties letting them know that a dismissal hearing was scheduled to address the Respondents’ \nmotion to  dismiss this  claim  due  to  a  lack  of  prosecution.   The hearing notice  was  sent  to  the \nClaimant via certified and first-class mail.  Said hearing was set for June 5, 2024, at 9:30 a.m., in \nEl Dorado, Arkansas. \nTracking information received by the Commission from the Postal Service shows that as \nof the date of the dismissal hearing, the Post Office was unable to deliver this item to the Claimant.  \nThis item was returned to the Commission.  On the contrary, the notice sent to the Claimant via \nfirst-class mail has not been returned to the Commission.    \nStill, there was no response from the Claimant.    \n On June 5, 2024, a dismissal hearing was in fact conducted on the Respondents’ motion \nfor dismissal of this claim as scheduled.  The Claimant did not appear at the dismissal hearing.  \nHowever, the Respondents appeared through their attorney.  \nCounsel for the Respondents asserted that the Claimant has failed to promptly prosecute \nthis claim for workers’ compensation benefits.  The Respondents’ attorney argued that there has \nbeen no attempt whatsoever on the part of the Claimant to move forward or otherwise prosecute \nthis claim via a bona fide request for a hearing on the merits within the last six (6) months and/or \nsince the  filing  of  the  Form  AR-C.  Therefore,  counsel asserted that  the  Claimant  has  failed  to \nprosecute her claim for  workers’  compensation  benefits.    As  a  result, the attorney  for  the \nRespondents asked  that  the  claim  be  dismissed  due  to  a  failure  to  prosecute, with  or without \nprejudice, because the Claimant has not requested a hearing within the last six (6) months.  The \nRespondents’ attorney moved that the claim be dismissed under Ark. Code Ann. §11-9-702 and \n\nCOTTON – H306174 \n \n5 \n \nCommission Rule 099.13.  Of note, counsel stated that all appropriate benefits have been paid on \nthis claim. \nThe evidence before me proves that the Claimant has failed to promptly prosecute her claim \nfor workers’ compensation benefits.  In that regard, the Claimant has not requested a hearing since \nher former  attorney filed  the  Form  AR-C, which  was done more  than  six (6) months  ago.   Of \nsignificance, the Claimant did not appear at the hearing to object to her claim being dismissed, and \nshe  has  not  responded  to  the  notices  of  this  Commission,  despite  having  received notice  of  the \nmotion  for  dismissal. Under  these circumstances,  I  am  compelled  to  find  that  the  evidence \npreponderates  that  the  Claimant  has failed  to  prosecute  her claim for workers’ compensation \nbenefits.  Therefore, per Ark. Code Ann. §11-9-702 and Rule 099.13 of this Commission, I find \nthat this claim should be and is hereby respectfully dismissed, without prejudice, to the refiling of \nit within the limitation period specified by law.   \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The  Claimant  has  not  requested  a  hearing  since  her former attorney \nrequested filed the Form AR-C, which was more than six (6) months ago.  \nHence, the evidence preponderates that the Claimant has failed to prosecute \nher  claim  for  workers’  compensation  benefits based upon  the relevant \nprovisions  of  the specified  statute,  Ark.  Code  Ann.  11-9-702, and  Rule \n099.13 of this Commission.       \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n\nCOTTON – H306174 \n \n6 \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby  granted, without  prejudice,  per  Ark. Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \nORDER \nIn accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. 11-9-702, and Arkansas Workers’ Compensation \nCommission  Rule 099.13, without  prejudice, to  the  refiling  of it, within  the limitation  period \nspecified by law.  \n \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":10990,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H306174 ALISHA COTTON, EMPLOYEE CLAIMANT OUACHITA COUNTY MEDICAL CENTER, EMPLOYER RESPONDENT AHA WORKERS’ COMPENSATION SIT, INSURANCE CARRIER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FILED JUNE 10, 2024 Heari...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:52:29.691Z"},{"id":"alj-H109094-2024-06-10","awccNumber":"H109094","decisionDate":"2024-06-10","decisionYear":2024,"opinionType":"alj","claimantName":"Brian Merrill","employerName":null,"title":"MERRILL VS. CITY OF JONESBOROAWCC# H109094June 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Merrill_Brian_H109094_20240610.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Merrill_Brian_H109094_20240610.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109094 \n \nBRIAN MERRILL, \nEMPLOYEE                                                                                                              CLAIMANT \n \nCITY OF JONESBORO, \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nARKANSAS MUNICIPAL LEAGUE., \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \nOPINION FILED JUNE 10, 2024 \n \nHearing conducted on Wednesday, May 24, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Mr. Brian Merrill was represented by the Honorable Phillip J. Wells, Jonesboro, \nArkansas.  \n \nThe Respondents were represented by the Honorable Mary K. Edwards, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on May 24, 2024, in Forrest City, Arkansas. No testimony was taken in the \ncase. Claimant’s attorney appeared at the hearing to respond to the motion. \nThe Claimant worked for the Respondent/Employer as a police officer. The Claimant was \nallegedly injured when a third party failed to yield resulting in a traffic collision on November 10, \n2021. Admitted  into  evidence  was Respondent  Exhibit  1, medical  records, consisting  of fifteen \npages. Respondent Exhibit 2, correspondence, and pleadings, consisting of thirteen pages. I have \nalso blue-backed Form AR-1, Form AR-2, and Form AR-C, as discussed infra. \nThe record reflects on January 10, 2022, a Form AR-C was filed with the Commission by \nAttorney Phillip Wells. This form reflects that Claimant, while transporting an inmate to the county \n\nMERRILL, AWCC No. H109094 \n \n2 \n \njail, was struck by another vehicle that ran a red light on November 10, 2021. Claimant allegedly \nsustained a head laceration, face scratches, and an open tibia and fibula fracture to the right leg. \nThese injuries were reported to the Respondent/Employer the same day as the vehicle incident. On \nNovember 15, 2021, a Form AR-1 was filed in this case, reflecting that Claimant was purportedly \ninvolved in a traffic collision. Respondents on November 24, 2021, filed a Form AR-2, that stated \nno grounds for disputing the claim. The Respondents officially accepted the claim via letter dated \nFebruary 11, 2022. Since that time benefits have been paid.  \nOn February 28, 2024, Respondents filed a Motion to Dismiss citing Claimant’s failure to \nprosecute his claim. Thus, in accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of the Motion to Dismiss hearing date at his current address of record \nvia the United States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, \nand regular First-Class Mail. The certified notice was claimed by Claimant on March 21, 2024. \nThe hearing took place on May 24, 2024.  \nClaimant’s counsel, during the hearing, opposed the motion stating that Claimant wants to \nkeep the claim open for future medical. Claimant’s counsel did admit that all required benefits \nhave  been  paid  by  the  Respondents;  and  there  is  no  need  for  a full-hearing. Both  parties  have \nagreed that there are no issues to litigate in this claim. The last date that benefits were paid was on \nJuly 19, 2023.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n\nMERRILL, AWCC No. H109094 \n \n3 \n \n2. The  Claimant and  Respondents  both  had  reasonable  notice of  the May 3,  2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on the Respondents’ Motion to Dismiss. Respondents argued that all benefits \nwere  paid.  The  last  benefit  payment  was  made  on  July  19,  2023.  No  other  benefits  have  been \nrequested by Claimant since that date. Claimant’s counsel did not dispute the payment of benefits \nrather wanted to keep the claim open for future medicals. Claimant counsel agreed that there are \nno disputed issues with this claim. Essentially, Claimant’s counsel wants the claim to be held open \nin perpetuity in the event of future medicals. This position runs counter to AWCC Rule 099.13.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant has filed his Form AR-C on \nJanuary 10, 2022. Since then, Claimant has taken no action in furtherance of the prosecution of \nthis claim. Therefore, I do find the Respondents have proven by the preponderance of the evidence \nthat Claimant has failed to prosecute his claim. And as a result, Respondents’ Motion to Dismiss \nshould be granted. \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted and this claim is hereby dismissed without prejudice. \n\nMERRILL, AWCC No. H109094 \n \n4 \n \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":5998,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H109094 BRIAN MERRILL, EMPLOYEE CLAIMANT CITY OF JONESBORO, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 10, 2024 Hearing conducted on Wednesday, May 24, 2024, before the Arkansas Workers...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:3"],"injuryKeywords":["fracture"],"fetchedAt":"2026-05-19T22:52:31.761Z"},{"id":"alj-H208829-2024-06-10","awccNumber":"H208829","decisionDate":"2024-06-10","decisionYear":2024,"opinionType":"alj","claimantName":"Thomas Sailor","employerName":null,"title":"SAILOR VS. GREENBRIER CO. INC.AWCC# H208829June 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Sailor_Thomas_H208829_20240610.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Sailor_Thomas_H208829_20240610.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208829 \n \nTHOMAS SAILOR, \nEMPLOYEE                                                                                                              CLAIMANT \n \nGREENBRIER CO. INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nSENTRY CASUALTY CO., \nCARRIER/TPA                                                                                                    RESPONDENT \n \nOPINION FILED JUNE 10, 2024 \n \nHearing conducted on Wednesday, May 24, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Mr. Thomas Sailor, was represented by the Honorable Andy Caldwell, Little Rock, \nArkansas.  \n \nThe Respondents  were represented by  the Honorable Carol  Lockard  Worley,  Little  Rock, \nArkansas. Ms. Worley’s law partner Jarrod Parrish argued the motion. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on May 24, 2024, in Jonesboro, Arkansas. No testimony was taken in the \ncase. Claimant’s attorney waived his appearance and did not attend the motion hearing. \nThe Claimant worked for the Respondent/Employer as a welder. Admitted into evidence \nwas Respondent Exhibit 1, correspondence, and pleadings, consisting of twelve pages. I have also \nblue-backed Form AR-1, March 26, 2024, signed Agreed Order and Andy Caldwell email dated \nApril 11, 2024, as discussed infra. \nThe record reflects on December 19, 2022, a Form AR-1 was filed with the Commission.  \nThis form reflects that Claimant allegedly injured his right hand when the hose for a huck gun had \na  hole  in  it  thus  allowing  the  oil  pressure  to  build  and  spray  through  his  glove  causing  a  small \n\nSAILOR, AWCC No. H208829 \n \n2 \n \nwound on November 14, 2022.  This alleged injury was reported to the Respondent/Employer on \nthe same day. On January 6, 2023, Respondents filed a Form AR-2 with no statement of position \nas to whether they were accepting or controverting the claim. Claimant on March 27, 2023, filed \na  Form  AR-C, that further  alleged  that  the  injury  occurred  during  the  course  and  scope  of  his \nemployment. Attorney  Carol  Worley  entered  her  appearance  on  behalf  of  the  Respondents  on \nFebruary 14, 2024.  \nThe parties  have  submitted  an  agreed  order  to  pay  the  Claimant  benefits  along  with  his \nlegal counsel fee on March 26, 2024. The agreed order upon approval includes a stipulation that \nboth parties would agree to a dismissal of the claim without prejudice. I approved and signed the \nagreed order on the same day. On March 29, 2024, Respondents’ counsel emailed me an order to \ndismiss the claim without prejudice. I have interpreted both the request to sign the order and the \ndismissal without prejudice stipulation found in the agreed order as an official request for a motion \nto dismiss hearing.  \nThus, in accordance with applicable Arkansas law, the Claimant was mailed due and proper \nlegal notice of the Motion to Dismiss hearing notice at his current address of record via the United \nStates Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and regular \nFirst-Class Mail. The certified notice was not claimed by the Claimant, but the notice sent regular \nFirst-Class Mail did not come back to the Commission. On April 11, 2024, Claimant’s counsel \nstated, via email, he had no objection to a dismissal without prejudice and stated his client waives \nhis right to a hearing on Motion to Dismiss hearing. The hearing took place on May 24, 2024. The \nmotion was argued by the Honorable Jarrod Parrish. \n \n \n\nSAILOR, AWCC No. H208829 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the May 24, 2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on the Respondents’ Motion to Dismiss. Respondents argued that both parties \nstipulated to a dismissal without prejudice through the agreed order and that Claimant’s counsel’s \nemail again confirmed no objection to a dismissal without prejudice. I interpret these statements \nas Claimant’s refusal to go any further and prosecute his claim beyond the March 26, 2024, agreed \norder. This position runs counter to AWCC Rule 099.13.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant has filed his Form AR-C on \nMarch 27, 2023. Since then, Claimant has consented to an approved agreed order that contained a \nstipulation for the dismissal of his claim without prejudice. Based on the foregoing, I do find the \nRespondents have proven by  the  preponderance  of  the  evidence  that  Claimant  has  failed  to \nprosecute his claim. And as a result, Respondents’ Motion to Dismiss should be granted. \n\nSAILOR, AWCC No. H208829 \n \n4 \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted and this claim is hereby dismissed without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6257,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208829 THOMAS SAILOR, EMPLOYEE CLAIMANT GREENBRIER CO. INC., EMPLOYER RESPONDENT SENTRY CASUALTY CO., CARRIER/TPA RESPONDENT OPINION FILED JUNE 10, 2024 Hearing conducted on Wednesday, May 24, 2024, before the Arkansas Workers’ Compensation Commission (the C...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:52:33.834Z"},{"id":"alj-H304329-2024-06-06","awccNumber":"H304329","decisionDate":"2024-06-06","decisionYear":2024,"opinionType":"alj","claimantName":"Kimberly Mccuien","employerName":null,"title":"McCUIEN VS. AMAZON COM SVCS. LLCAWCC# H304329June 6, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/McCuien_Kimberly_H304329_06062024.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"McCuien_Kimberly_H304329_06062024.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H304329 \n \n \nKIMBERLY D. McCUIEN, EMPLOYEE CLAIMANT \n \nAMAZON COM SVCS. LLC, \nEMPLOYER RESPONDENT \n \nAMER. ZURICH INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED JUNE 6, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on June  6,  2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Rick  Behring,  Jr.,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This    matter    comes    before    the Arkansas  Workers’  Compensation \nCommission (the  “Commission”) on  a Motion  to Dismiss  by  Respondents.  A \nhearing on the motion was conducted on June 6, 2024, in Little Rock, Arkansas.  \nNo testimony was taken in the case.  Claimant failed to appear at the hearing; she \nnotified   the   Commission   that   she   was   waiving   her appearance see   infra).  \nAdmitted into evidence were Commission Exhibit 1 and Respondents’ Exhibit 1—\nforms,  pleadings  and  correspondence  related  to  the  claim—consisting  of 29 and \n24 pages, respectively. \n\nMcCUIEN – H304329 \n \n2 \n \n \n The evidentiary record reflects the following procedural history: \n Per  the Form  AR-C filed on July  7,  2023,  Claimant allegedly injured  her \nright knee at work on June 6, 2023, with she was struck by the tongue of a cart.  \nOn  August  15,  2023,  she  emailed  the  Clerk  of  the  Commission,  requesting  a \nhearing on her claim.  According to the Form AR-2 that was filed on October 24, \n2023, Respondents accepted the claim as a medical-only one. \n The  file  was  assigned  to  the  Legal  Advisor  Division of  the  Commission.  \nHowever, on September 14, 2023,  Claimant was  sent a  letter,  informing  her  that \nbecause she had not returned her Legal Advisor questionnaire response, her file \nwas being returned to the Commission’s general files.  She complied thereafter, \nfiling   a   completed  questionnaire  on   October   12,   2023.      Therein,   Claimant \nrepresented that the value of her claim was in excess of $2,500.00, and that she \nwas not interested in pursuing mediation. \n Because of this, the file was reassigned to my office on October 17, 2023, \nto conduct a full hearing.  Prehearing questionnaires and preliminary notices were \nissued  to  the  parties  on  October  18,  2023.    In  the  meantime,  on  November  2, \n2023,  Claimant  emailed  the  Commission,  requesting  her  one-time  change  of \nphysician.    As  a  result,  I  suspended  the  prehearing  process  and  had  the  file \nreassigned  to  the  Medical  Cost  Containment  Division of  the  Commission to \nprocess  the  request.   That  division  entered  an  order  on  December  18,  2023, \nchanging Claimant’s authorized treating physician from Dr. John Adametz to Dr. \n\nMcCUIEN – H304329 \n \n3 \n \n \nScott  Bowen,  and  scheduling  an  appointment  with  the  latter  for  December  28, \n2023.  The  appointment  took  place,  and  Respondents  accepted  the  treatment \nrecommendations  of  Bowen.  The  doctor released  her  from  treatment  as  of \nFebruary 1, 2024, assigning no permanent restrictions in connection with her knee \ninjury. \n Claimant  made  another  hearing  request  on  April  2,  2024.    The  file  was \nreassigned  to  my  office  on  April  3,  2024.    But  before  prehearing  questionnaires \nwere issued to the parties, Respondents on April 10, 2024, filed the instant Motion \nto Dismiss under Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) and AWCC \nR. 099.13. \n Prehearing  questionnaires  were  issued  to  the  parties  on  April  12,  2024.  \nSince the hearing request came before the motion’s filing, I informed the parties \non  April  15,  2024,  that  I  was  holding  the  motion  in  abeyance.  On  May  1,  2024, \nClaimant  emailed  my  office  that  she  was  withdrawing  her  hearing  request \nbecause Respondents and she were able to resolve the matter amicably.  Based \non this, Respondents’ counsel that same day requested a hearing on the Motion \nto  Dismiss.    The next day,  May 2,  2024,  Claimant  notified my  office  that  she  did \nnot object to the motion being granted, and that she would not be appearing at the \nhearing thereon.  The Notice of Hearing, which scheduled a hearing on the Motion \nto  Dismiss  for  June  6,  2024,  at  9:30  a.m.  at  the  Commission  in  Little  Rock, was \n\nMcCUIEN – H304329 \n \n4 \n \n \nsent to the parties that same day via certified mail.  Claimant signed for her copy \nof the notice on May 9, 2024. \n The  hearing  on  the motion  proceeded  as  scheduled  on June  6,  2024.  \nAgain, Claimant did not appear.  But Respondents appeared through counsel and \nargued for dismissal under the aforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim  is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \n\nMcCUIEN – H304329 \n \n5 \n \n \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nclaim–by  a  preponderance  of  the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue the claim because she has taken no further action in \npursuit  of  it—including  appearing  at  the June  6,  2024,  hearing on  the  Motion  to \nDismiss—since withdrawing her hearing request and communicating that she did \nnot  object  to  dismissal of  the  claim.  Thus,  the  evidence  preponderates  that \ndismissal is warranted under Rule 13.  Because of this finding, it is unnecessary \nto address the applicability of Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012). \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n\nMcCUIEN – H304329 \n \n6 \n \n \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice. \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":8123,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H304329 KIMBERLY D. McCUIEN, EMPLOYEE CLAIMANT AMAZON COM SVCS. LLC, EMPLOYER RESPONDENT AMER. ZURICH INS. CO., CARRIER RESPONDENT OPINION FILED JUNE 6, 2024 Hearing before Administrative Law Judge O. Milton Fine II on June 6, 2024, in Little Rock, Pulaski Co...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:52:27.621Z"},{"id":"alj-H307385-2024-06-05","awccNumber":"H307385","decisionDate":"2024-06-05","decisionYear":2024,"opinionType":"alj","claimantName":"Paul Shelly","employerName":null,"title":"SHELLY VS. R BARTEL, INC.AWCC# H307385June 5, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SHELLY_PAUL_H307385_20240605.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHELLY_PAUL_H307385_20240605.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H307385 \n \nPAUL SHELLY, Employee                                                                              CLAIMANT \n \nR BARTEL, INC., Employer                                                                      RESPONDENT \n \nSTATE AUTO INSURANCE COMPANIES, Carrier                                  RESPONDENT                                                                  \n \n \n \n OPINION FILED JUNE 5, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 13, 2024, the above captioned claim came on for hearing at Fort Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on March  27,  2024 and  a  pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The  employee/employer/carrier  relationship  existed  among  the  parties  on \nNovember 3, 2023. \n 3.   The claimant was earning sufficient wages to entitle him to compensation at \nthe weekly rates of $743.00 for total disability benefits and $557.00 for permanent partial \n\nShelly – H307385 \n \n2 \n \ndisability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.  Compensability of injury to claimant’s left big toe on November 3, 2023. \n2. Related medical benefits. \n3. Temporary total disability benefits from November 4, 2023 through February 2,  \n2024. \n4. Permanent partial disability benefits. \n5. Attorney’s fee. \nThe claimant contends he sustained a compensable injury when he broke his toe \nas a result of a job related incident on November 3, 2023 and that as a result he developed \ncomplications in his left big toe that resulted in the necessity of that toe being amputated.  \nClaimant contends he is entitled to temporary total disability benefits from November 4, \n2023  until  February  2,  2024  and  reasonably  necessary  medical  treatment.    Claimant \ncontends he is entitled to permanent disability benefits because of the amputation of  his \nbig toe.  Claimant contends his attorney is entitled to an appropriate attorney’s fee.  \nThe  respondents  contend  the  claimant  was not  injured  at  work  on  November  3, \n2023.  The claimant had a diabetic ulcer on his left big toe prior to November 3, 2023.  He \nallegedly stumped the left toe at work but there is no proof that an injury occurred due to \nthat  incident.   The  claimant broke  the  same toe  about  one  year  prior  to  the  incident  at \nwork.  The toe was later amputated due to the diabetic foot infection and osteomyelitis.  \nThe claimant also had a right foot pressure injury that was treated at the same time.  The \nright foot was not injured at work.  The major cause of any permanent impairment is not \nthe incident at work.  \n\nShelly – H307385 \n \n3 \n \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non March 27, 2024 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his left great toe on November 3, 2023. \n 3.      Respondent  is  liable  for payment  of all  reasonable  and  necessary  medical \ntreatment  provided  in  connection  with  claimant’s  compensable  left  great  toe  injury.  \nRespondent is not liable for payment of any medical treatment associated with claimant’s \nright foot. \n 4.   Claimant has proven by a preponderance of the evidence that he is entitled to \ntemporary total  disability  benefits  beginning November 4, 2023  and  continuing  through \nFebruary 2, 2024. \n 5.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to permanent partial disability benefits for the loss of the great toe in the \namount of 32 weeks.  A.C.A. §11-9-521(a)(12). \n 6.  Twenty-five percent (25%) of the indemnity benefits payable to claimant are to \nbe withheld and forwarded to the appropriate agency for payment of claimant’s past due \n\nShelly – H307385 \n \n4 \n \nchild support.  A.C.A. §11-9-110(d). \n 7.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant began working for respondent as a fiber technician, installing fiber optic \ncable, on February 22, 2023.  Claimant’s job duties required him to install fiber optic cable.  \nClaimant testified that on November 3, 2023, he was in the process of carrying some fiber \noptic cable to a trailer when his left foot struck an underground concrete vault.  Claimant \ntestified that he paused his work momentarily before regathering himself and continuing \nto work.  Claimant estimated that after this incident he was on his feet for an additional \nsix hours. \n Claimant testified that he did not arrive at home until approximately 10:00 p.m. on \nthe night of November 3, 2023.  It was after arriving at  home that he determined that he \nhad injured his left toe.   \n  Q And how did you determine – how did you first \n  realize that your toe was actually injured? \n \n  A Well, just by feeling, you know.  After it happened, \n  I didn’t take my boot off or nothing.  I continued to work. \n  When I got home that night, I took my boot off and I had \n  seen some swelling in it and it was turning colors.   \n \n   And I just got in the shower and kind of started \n  feeling a little bit feverish and took some ibuprofen and \n  went to bed.  And I got up the next morning and it had \n  swollen even bigger, so that is when I decided to go to \n  the emergency room. \n \n \n Claimant went to the emergency room on November 4, 2023, where he was seen \n\nShelly – H307385 \n \n5 \n \nby Dr. Seiter, a podiatrist who had previously treated claimant for foot issues.  Claimant \nwas diagnosed as having suffered a fractured great left toe with a severe infection.  On \nNovember 5, 2022, claimant underwent surgery which consisted of an amputation of the \nleft great toe and a right foot full thickness wound excision. \n As a result of this injury and surgery, claimant was taken off work by Dr. Seiter.  \nClaimant  testified  that  he  was  released  to  return  to  work  by  Dr.  Seiter  on  February  2, \n2024, and he returned to work for respondent on February 5, 2024.   \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis  left  great  toe  while  working  for  respondent  on  November  3,  2023.    He  requests \npayment  of  temporary  total  disability  benefits,  permanent  partial  disability  benefits, \npayment of medical benefits, and a controverted attorney fee. \n \nADJUDICATION \n Claimant  contends  that  he  suffered  a  compensable  injury  to  his  left  big  toe  on \nNovember 3, 2023, when he struck his left foot against an underground concrete vault.  \nClaimant’s claim is for a specific injury identifiable by time and place of occurrence.  In \norder to prove a compensable injury as the result of a specific incident that is identifiable \nby time and place of occurrence, a claimant must establish by a preponderance of the \nevidence (1) an injury arising out of and in the course of employment; (2) the injury caused \ninternal  or  external  harm  to  the  body  which  required  medical  services  or  resulted  in \ndisability or death; (3) medical evidence supported by objective findings establishing an \ninjury; and (4) the injury was caused by a specific incident identifiable by time and place \nof occurrence.  Odd Jobs and More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n\nShelly – H307385 \n \n6 \n \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  met  his  burden  of  proving  by  a \npreponderance of the evidence that he suffered a compensable injury to his left great toe \non November 3, 2023.   \n First, I find that claimant met his burden of proving that his injury arose out of and \nin  the  course  of  his  employment  and  that  the  injury  was  caused  by  a  specific  incident \nidentifiable by time and place of occurrence.  As previously noted, claimant testified that \non  November  3,  2023,  he  was  working  for  the  respondent  and  was  in  the  process  of \npulling  on  some  fiber  optic  cable  when  he  struck  his  left  foot  against  a  concrete  vault.  \nClaimant testified that he paused for a period of time before continuing his job activities.  \nWhen claimant got home that night and took his boot off he discovered that his left toe \nhad swelling and was turning colors.  The next morning the swelling had increased and \nhe sought medical treatment. \nThe  documentary  evidence  introduced by  the  claimant  contains  an  investigative \nreport performed by Douglas Renard, the Director of Safety and Fleet Operations for the \nrespondent.  Renard’s report basically collaborates claimant’s statements regarding the \naccident.  To that point, there is no indication that claimant was not working for respondent \nat the time this injury occurred or that he was not engaged in employment services.  To \nthe contrary, I find based upon claimant’s testimony as well as the remaining evidence \nthat claimant has met his burden of proving by a preponderance of the evidence that his \ninjury  arose  out  of  and  in  the  course  of his employment and  that  it  was  the  result  of  a \nspecific incident identifiable by time and place of occurrence. \n I also find that claimant has proven that his injury caused internal harm to his body \n\nShelly – H307385 \n \n7 \n \nthat  required  medical  services  or  resulted  in  disability  and  that  he  has  offered  medical \nevidence  supported  by  objective  findings  establishing  an  injury.    With  respect  to  these \nissues, it is important to review claimant’s prior problems with his feet.  The medical \nrecords indicate that on June 6, 2023, claimant presented to the emergency room for right \nfoot  erythema  with  right  foot  diabetic  ulcers.    Claimant  was  subsequently evaluated  by \nDr.  Seiter  on  June  8,  2023 and  he indicated that  claimant  was  having  moderate  pain \noverlying wound sites of the plantar bilateral first metatarsal heads, right greater than left.  \nDr. Seiter’s diagnosis of the claimant’s condition included a pressure ulcer of the right \nfoot, stage 3; pressure injury of toe of left foot, stage 2; pressure ulcer of toe of right foot, \nstage 2; Type 2 diabetes; and left foot pain.   The medical records indicate that claimant \ncontinued to be evaluated by Dr. Seiter for treatment involving both his left and right foot \nover the course of the next few months.   That treatment primarily consisted of cleansing \nthe feet with soap and water and applying antibiotics with protective dressing. \n In the report dated September 9, 2023, Dr. Seiter indicated: \n  Patient additionally demonstrates resolvement of \n  previous ulceration underlying the plantar aspect \n  left hallux.   \n \n \n Dr. Seiter’s diagnosis of the claimant no longer mentioned any pressure injury of \na toe on the claimant’s left foot at that time.  The resolvement of the left hallux issues was \nalso noted by Dr. Seiter in his report of October 17, 2023.  All of this occurred before the \nincident on November 3, 2023.   \n It is also important to note that Dr. Seiter answered various questions proposed to \nhim  in  a  letter  dated  May  1,  2024.    The  first  question  that  Dr.  Seiter  addressed  was \n\nShelly – H307385 \n \n8 \n \nwhether the claimant revealed to him that he had a work-related injury.  In response to \nthat question, Dr. Seiter indicated that claimant did not reveal a work-related injury to him.  \nInstead, he stated that his recollection was that claimant had an infected ulceration of the \nleft great toe and that this was a new finding.  However, a report of a work-related injury \nis reflected in the notes of Nurse McKenzie dated November 4, 2023.  Specifically, Nurse \nMcKenzie stated: \n  Pt presents to ED via POV with c/o L toe pain.  Pt \n  states he stumped his toe yesterday on concrete  \n  and woke up this morning to it being severely swollen, \n  painful, and leaking fluid with sores on L big toe.  Pt \n  states this morning L leg was red and inflamed \n  radiating up the leg to the groin area.   \n \n \n Thus,  claimant  did  report  a  work-related  injury  at  the  time  he  initially  sought \nmedical treatment at the emergency room on November 4, 2023. \n Dr. Seiter also indicated that claimant gave a history of having fractured  his left \ngreat toe over a year ago before November 3, 2023, and that he had never sought medical \nattention.  Claimant testified that he had informed Dr. Seiter that he thought he had broke \nhis toe a year to a year and a half ago, but had been informed that there was nothing that \ncould be done for a broken toe.   \n Regardless of whether claimant had previously suffered a fracture to his left toe, it \nis the opinion of Dr. Seiter that claimant’s amputation of the left big toe resulted from the \ninjury which occurred on November 3, 2023.  In response to questions posed to him, Dr. \nSeiter indicated in his report of May 1, 2024: \n   \n  2.   Did the claimant already have a pre-existing cellulitis/ \n  osteomyelitis condition of the toe? \n\nShelly – H307385 \n \n9 \n \n \n  No, but he had reported swelling ever since a previous fracture. \n \n  3.  The claimant told you he broke the left big toe 1 to \n  1.5 years previously and never went to the doctor.  The  \n  x-rays and MRI showed a broken toe.  Is it likely that the \n  broken toe was due to the previous accident and not the \n  incident on 11/3/2023? \n \n  It is unlikely that the previously noted left great toe fracture \n  was not the cause of infection and ulceration prior to the \n  incident on 11/3/2023 as patient had no history of infection \n  to this area in previous evaluations. \n \n  4.   What is the medical consequences of stumping the  \n  left toe on 11/3/2023? \n \n  In this situation it resulted in an ulcer formation that ultimately \n  led to infection of the bone requiring partial left hallux amputa- \n  tion. \n \n  5.   What is the major cause of the amputation of the left \n  big toe? \n \n  Diabetes?  Secondary contributing factor \n \n  Cellulitis?  Secondary contributing factor \n \n  Osteomyelitis?  Primary contributing factor \n \n  The injury at work?  Primary causative factor \n \n  6.  Is it likely that that osteomyelitis developed overnight \n  between 11/3/2011 (sic) and 11/4/2023. \n \n  Review of chart indicates patient was previously on IV anti- \n  biotics for infection about the right foot.  Given limited informa- \n  tion regarding injury or left great toe and date of injury it is \n  difficult to ascertain as to timeframe for involvement of the \n  osteomyelitis. \n \n \n Thus, according to the opinion of Dr. Seiter, claimant’s injury at work was the \nprimary factor in the claimant’s need for amputation of his left big toe.  I find that Dr. \n\nShelly – H307385 \n \n10 \n \nSeiter’s opinion is entitled to great weight. \n Based upon the opinion of Dr. Seiter as well as the remaining evidence presented \nin  this  case,  I  find  that  claimant  has  proven  that  his  injury  caused  internal  harm  to  the \nbody that required medical services and resulted in disability.  I also find that claimant has \noffered medical  evidence  supported  by objective  findings establishing  an  injury.    Here, \ntesting revealed a fractured toe as well as an infection which resulted in the amputation \nof the left great toe.   \n Based on the foregoing evidence, I find that claimant has met his burden of proving \nby a preponderance of the evidence that he suffered a compensable injury to his left great \ntoe on November 3, 2023.   \n Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injury.  This includes the \nsurgical procedure performed by Dr. Seiter to amputate claimant’s left great toe.  With \nrespect to this issue, I note that in addition to the amputation of claimant’s left great toe, \nDr. Seiter also performed a wound excision on the claimant’s right foot on November 5, \n2023.    Respondent  is  not  liable  for  payment  of  any  medical  benefits  associated  with \nclaimant’s right foot. \n I also find that claimant has proven by a preponderance of the evidence that he is \nentitled to temporary total disability benefits beginning November 4, 2023 and continuing \nthrough February 2, 2024.  The injury to claimant’s left great toe is a scheduled injury.  A \nclaimant  who  suffers  a  scheduled  injury  is  entitled  to  temporary  total  disability  benefits \nduring  their  healing  period  or  until  they  return  to  work.    A.C.A.  §11-9-521(a); Wheeler \nConstruction Company v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).  Here, \n\nShelly – H307385 \n \n11 \n \nclaimant was taken off work by Dr. Seiter beginning on November 4, 2023, and he did not \nrelease  claimant  to  return  to  work  until  February  2,  2024,  according  to  claimant’s \ntestimony.  I find that claimant’s testimony is credible and entitled to great weight and \ntherefore  find  that  claimant  is  entitled  to  temporary  total  disability  benefits  beginning \nNovember 4, 2023 through February 2, 2024.   \n I also find that claimant has proven by a preponderance of the evidence that he is \nentitled to permanent partial disability benefits for the loss of his great toe in the amount \nof 32 weeks.  Claimant’s surgery resulted in the total amputation of his left great toe which \naccording to A.C.A. §11-9-521(a)(12) would entitle him to payment of permanent partial \ndisability benefits in an amount equal to 32 weeks.  With respect to this issue, I find that \nclaimant’s compensable injury was the major cause of his permanent impairment. \n Claimant  testified  at  the  hearing  that  he  owes  back  child  support.    Pursuant  to \nA.C.A.  §11-9-110(d)  up  to  25%  of  weekly  compensation  benefits  may  be  withheld  for \npayment of past due child support.  Accordingly, I find that 25% of the indemnity benefits \npayable  to  claimant  are  to  be  withheld  and  forwarded  to  the  appropriate  agency  for \npayment of claimant’s past due child support. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe suffered a compensable injury to his left great toe on November 3, 2023.  Respondent \nis  liable  for  payment  of  all  reasonable  and  necessary  medical  treatment  provided  in \nconnection with claimant’s compensable left great toe injury.  Respondent is not liable for \npayment of any medical benefits provided for claimant’s right foot.  Claimant is entitled to \n\nShelly – H307385 \n \n12 \n \ntemporary total disability benefits beginning November 4, 2023, and continuing through \nFebruary  2,  2024.    Claimant  is  entitled  to  permanent  partial  disability  benefits  in  an \namount equal to 32 weeks for the amputation of his left great toe.  Twenty-five percent \n(25%) of the indemnity benefits payable to claimant are to be withheld and forwarded to \nthe appropriate agency for payment of claimant’s past due child support. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable  to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $401.95. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":20959,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H307385 PAUL SHELLY, Employee CLAIMANT R BARTEL, INC., Employer RESPONDENT STATE AUTO INSURANCE COMPANIES, Carrier RESPONDENT OPINION FILED JUNE 5, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Cl...","outcome":"granted","outcomeKeywords":["granted:7"],"injuryKeywords":["fracture","back"],"fetchedAt":"2026-05-19T22:52:25.556Z"},{"id":"full_commission-H205903-2024-06-04","awccNumber":"H205903","decisionDate":"2024-06-04","decisionYear":2024,"opinionType":"full_commission","claimantName":"Tracy Decker","employerName":"White River Health System Inc","title":"DECKER VS. WHITE RIVER HEALTH SYSTEM INC. AWCC# H205903 JUNE 4, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Decker_Tracy_H205903_20240604.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Decker_Tracy_H205903_20240604.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H205903 \n \nTRACY D. DECKER, EMPLOYEE    CLAIMANT \n \nWHITE RIVER HEALTH SYSTEM INC.,  \nEMPLOYER                                                                           RESPONDENT \n \nRISK MANAGEMENT RESOURCES \nINSURANCE CARRIER/TPA                                                 RESPONDENT \n \nOPINION FILED JUNE 4, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE KENNETH P. “CASEY” \nCASTLEBERRY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed March 26, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission \nhas jurisdiction over this claim.  \n \n2. That an employer/employee/carrier relationship existed \non November 15th, 2021, and at all relevant times. \n \n3. That the claimant has failed to satisfy the required \nburden of proof to show that she sustained a gradual \n\n \nDecker-H205903    2  \n \n \nonset injury to her right ankle that was related to her \nwork.  \n \n4. That, consequently, all other issues are moot.  \n \n5. If not already paid, the respondents are ordered to pay \nfor the cost of the transcript forthwith. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the March 26, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2486,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H205903 TRACY D. DECKER, EMPLOYEE CLAIMANT WHITE RIVER HEALTH SYSTEM INC., EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 4, 2024 Upon review before the FULL COMMISSION in Lit...","outcome":"affirmed","outcomeKeywords":["affirmed:3"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:29:45.264Z"},{"id":"full_commission-H302799-2024-05-31","awccNumber":"H302799","decisionDate":"2024-05-31","decisionYear":2024,"opinionType":"full_commission","claimantName":"Gisela Gutierrez","employerName":"Tyson Poultry, Inc","title":"GUTIERREZ VS. TYSON POULTRY, INC. AWCC# H302799 MAY 31, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Gutierrez_Gisela_H302799_20240531.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Gutierrez_Gisela_H302799_20240531.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H302799 \n \nGISELA GUTIERREZ, \nEMPLOYEE \n \nCLAIMANT \nTYSON POULTRY, INC.,  \nEMPLOYER \n \nRESPONDENT \nTYNET CORPORATION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 31, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JEREMY SWEARINGEN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nDecember 19, 2023.  The administrative law judge found that the claimant \nfailed to prove she sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant proved \nby a preponderance of the evidence that she sustained a compensable \ninjury.     \nI.  HISTORY \n Gisela Gutierrez de Maldonado, now age 45, testified that she \nbecame employed with the respondent, Tyson, in 2003.  The claimant \n\nGUTIERREZ - H302799  2\n  \n \n \ntestified that she initially performed “deboning” in her work for the \nrespondent-employer.  The parties stipulated that the employment \nrelationship existed on June 15, 2022.  The claimant testified on direct \nexamination: \nQ.  What job were you doing in the spring and summer of \n2022? \nA.  2022, the same thing but they closed the plant in Rogers \nand moved us to Springdale....My wrist started hurting me \nfrom pulling the skin off. \nQ.  And which wrist was that? \nA.  The right one.   \nQ.  Have you ever had any problems with that right wrist \nbefore these symptoms began? \nA.  No.   \nQ.  Now, you said you were pulling the skin.  Can you \ndescribe the job more specifically? \nA.  So the job there is to flip the breast over and then pull the \nskin off of it.... \nQ.  And are you standing in an assembly line when you’re \ndoing this? \nA.  Yes.   \nQ.  Do you know whether there’s a quota for how many \nbreasts you must do per minute? \nA.  Fifty.   \nQ.  When you began having these symptoms in your right \nhand and wrist, did you report those? \nA.  Yes, I told the nurse’s station.   \nQ.  And is that the procedure that you were instructed to use \nwhen you have an injury at Tyson? \nA.  Yes, I mean there’s a lot of different departments at Tyson, \nand it just depends on what area you work in.... \nQ.  So when you reported to the nurse’s station, what did the \nnurse do for you? \nA.  Nothing.... \nQ.  As the days went on, did you begin to have more \nsymptoms? \nA.  Yes....The pain moved up to my elbow.   \nQ.  And is that your right elbow? \n\nGUTIERREZ - H302799  3\n  \n \n \nA.  Yes, the right elbow.   \nQ.  And did you report the problem again? \nA.  Yes, I told Maria, the supervisor.   \nQ.  And about how long was this from the time you first \nreported the nurse’s station? \nA.  About three weeks.... \nQ.  So did the nurse offer you any treatment? \nA.  No, no.  She just told me to take some of the cream that \nthey had and rub that on.   \nQ.  And did you make it clear to the nurse and to Maria that \nyou believed it was your work that was causing your \nproblems? \nA.  Yes, I told Maria and the nurse that.   \nQ.  So when the nurse did not offer you any treatment, did you \ncontinue to work? \nA.  Yes, I did.   \nQ.  And did you seek medical treatment on your own? \nA.  Yes.  I went to my own doctor because I couldn’t take the \npain anymore. \nQ.  And who is your doctor? \nA.  Smiley, John Smiley.   \nQ.  And did Dr. Smiley give you any treatment for your elbow \nand wrist? \nA.  No....He sent me to Dr. Chen.   \n \n According to the record, the claimant treated at Mercy Clinic \nOrthopedics Rogers beginning October 6, 2022.  The claimant reported \n“pain on both arms” and that the pain was worsened by “Work.”  Dr. \nAndreas Chen began treating the claimant on October 6, 2022: \nA 43-year-old right-hand dominant female, who works at \nTyson, who presents today for evaluation of her bilateral \nupper extremities.  She states that her left hand has been \nbothering her especially at the wrist.  She notes that it hurts \nher whenever she uses her left upper extremity.  It has been \ngoing on for the last 3 months.  She notes that her right hand \nhas also been having numbness and tingling as well.  It has \nbeen bothering her.  She has not worn braces on either wrists \n\nGUTIERREZ - H302799  4\n  \n \n \n(sic).  Of note, she is an uncontrolled diabetic with an A1c \ngreater than 12.   \n \n Dr. Chen assessed “A 43-year-old female with uncontrolled diabetes \nwith left TFCC inflammation along with right carpal tunnel syndrome.”  Dr. \nChen planned, “Her diabetes is too out of control for her [to] undergo steroid \ninjection or to undergo surgical intervention.  At this point, I would \nrecommend placing a volar cock-up brace to help with the TFCC and using \ndiclofenac gel.  On the right side, I would like her to use a volar cock-up \nbrace as well.  I would like to see her back in another 6 weeks for repeat \nevaluation to see how she is doing with her diabetes.  If her sugars are \nbetter and her A1c is better, then we can potentially give her a steroid \ninjection or set her up for surgical intervention.”   \n Dr. Miles M. Johnson provided an EMG Report on November 30, \n2022: \nMedian motor distal latencies are prolonged bilaterally, right \nworse than left.  Ulnar motor study is normal bilaterally.  Right \nmedian orthodromic response is nonrecordable.  Ulnar \nresponse is normal.  Left median ulnar orthodromic sensory \nlatency difference is abnormal.  Radial sensory response is \nnormal bilaterally.  EMG examination revealed reduced \nrecruitment in the APB bilaterally.   \nASSESSMENT:  Bilateral carpal tunnel syndrome.  This is \nsevere on the right and moderate on the left.  There is no \nelectrodiagnostic evidence of radiculopathy, plexopathy, \ngeneralized peripheral neuropathy or other peripheral nerve \nentrapment syndromes....Would recommend evaluation for \nbilateral carpal tunnel releases beginning on the right.   \n \n The claimant followed up with Dr. Chen on December 13, 2022: \n\nGUTIERREZ - H302799  5\n  \n \n \nA 44-year-old female, who presents back today for evaluation \nof her right upper extremity....Electrodiagnostic testing from \nDr. Miles Johnson was reviewed from 11/30/2022 revealing \nright carpal tunnel syndrome....She has carpal tunnel \nsyndrome.  It is fairly severe.  At this point, I would \nrecommend an endoscopic carpal tunnel release.  I initially \nwas hesitant to offer her surgical intervention as her sugars \nare not well controlled.  Since they are much better controlled, \nwe can do this....We will do her surgery under IV sedation in \nJanuary.  She will have 3 weeks off her work.  She needs to \nwear her braces in the meantime to help with her tingling and \nto help with her pain in the left wrist.   \n \n On January 5, 2023, Dr. Chen signed a Tyson certification indicating \nthat the claimant could return to regular work with no restrictions on \nFebruary 1, 2023.    \nThe record indicates that Dr. Chen performed a right carpal tunnel \nrelease on January 16, 2023.  The claimant testified that she was off from \nwork for two weeks following surgery.     \nAudrey C. Smith, PA noted on February 2, 2023, “Patient is 2 weeks \npostop right carpal tunnel release performed on 1/16/2023.  She reports \nthat she is doing much better.  She is having some pain in her palm but \nother than that she is happy with the procedure.  Patient is overall  happy \nwith the procedure....Patient is healing well from a right carpal tunnel \nrelease.  She was educated that there may continue to be pain in their palm \nfor up to 4-6 weeks post operatively but this should progressively improve.  \nPatient is released to do what they would like as tolerated with pain.”   \nAudrey C. Smith examined the claimant on April 26, 2023: \n\nGUTIERREZ - H302799  6\n  \n \n \nGisela Gutierrez de Maldonado is a 44 y.o. female who \npresents with right elbow pain.  This has been going on for the \npast 3 months.  She has a lot of pain whenever she is trying to \nmove her hand or her wrist.  She uses her hands a lot at work \nand so she has some issues with that.  The pain is in her \nelbow but does seem to radiate down her arm.  She has not \ntried any conservative management.... \nMUSCULOSKELTAL:  Upon exam of right upper extremity, \npatient has tenderness to palpation over the right lateral \nepicondyle.  No tenderness over the medial epicondyle.  No \ntenderness over the olecranon.  Some tenderness throughout \nthe forearm.  Some tenderness with wrist extension.  No \ndeformities noted.... \nPatient has right lateral epicondylitis.  This is something we \ncan manage conservatively.  What I would recommend is that \nwe give her a tennis elbow strap as well as some numbness \nin her in some anti-inflammatory medication.  I will send her in \nmeloxicam.  She should take it every day for the next 2 weeks \nand as needed thereafter.  [Let’s] see her back in about 6 \nweeks.  I did tell her it takes a while for this to completely \nimprove.  She is a diabetic so this will increase her duration of \nhealing....She is released to full duty. \n \n Ms. Smith assessed “Right lateral epicondylitis.”   \nA pre-hearing order was filed on June 21, 2023.  According to the \npre-hearing order, the claimant contended, “The claimant contends she is \nentitled to payment of medical treatment for her right wrist and elbow, and \nto payment of temporary total disability benefits for two weeks during \nJanuary of 2023.  Claimant reserves all other issues.” \n The parties stipulated that the respondents “controverted this claim \nin its entirety.”  The respondents contended, “The respondents contend that \nclaimant has offered no proof at all that she sustained a compensable right \nwrist or elbow injury.  She has provided no objective medical findings of \n\nGUTIERREZ - H302799  7\n  \n \n \ninjury or any records whatsoever.  Respondent contends that its first notice \nthat the claimant was alleging a compensable right wrist and elbow injuries \n(sic) was the AR-C filed by the claimant’s attorney which was received by \nthe respondent on May 3, 2023.  Thus, even if the claimant (sic) were \nsomehow found to be compensable, respondent would not be liable for any \nbenefits incurred or accrued before the date such notice was received.  The \nclaimant has not specified what temporary total disability benefits she is \nseeking.  The claimant has not specified what medical she is seeking.”   \n The parties agreed to litigate the following issues: \n1.  Compensability of a gradual onset injury to claimant’s right \nwrist and elbow on or about June 15, 2022. \n  2.  Medical expenses. \n  3.  Temporary total disability benefits. \n  4.  Attorney’s fee. \n  5.  Notice.    \n \n The parties deposed Dr. Chen on November 17, 2023.  The \nrespondents’ attorney examined Dr. Chen: \nQ.  Did – you ended up conducting – performing surgery on \nthe right side for carpal tunnel release.  Is that right? \nA.  Correct.... \nQ.  In the October 6\nth\n chart dictation, there’s mention of \nuncontrolled diet.  She’s an uncontrolled diabetic with an A1c \ngreater than 12.  And why is that, in your opinion, relevant to a \ndiscussion of carpal tunnel or upper extremity complaints like \nthis? \nA.  So there are a couple of reasons.  One is that diabetes \ncan increase your symptoms of carpal tunnel syndrome.  \nNumber two is that I would not intervene on any – I would not \nintervene on her care, if her diabetes is uncontrolled, so – \n\nGUTIERREZ - H302799  8\n  \n \n \nbecause the risk of infection goes up significantly, if her – your \nsugars are uncontrolled.... \nQ.  Now, I’ve read some literature that indicates that there’s, \nat least, a belief that diabetes is causative in the formation of \ncarpal tunnel syndrome.  Is that your understanding as well? \nA.  I think there’s a correlation.  I am not convinced of \ncausation.  I think there are people who are – people who are \ndiabetic more likely to develop carpal tunnel syndrome.  We \nhave – we don’t have a causation.   \nQ.  Okay.  Now, and some of the literature I read, just to try to \nfigure out the correlation, there is a theory or, at least, a belief \nthat the glucose in high-glucose-blood-sugar patients \naccumulates around the median nerve and causes \ninflammation within the carpal tunnel.  Is that something that \nyou’ve read? \nA.  It is possible.  Correct.... \nQ.  When you go in, for example, and do the carpal tunnel \nrelease, what you do is, you go in and essentially free up the \nmedian nerve within the carpal tunnel? \nA.  Correct.   \nQ.  And that doesn’t tell you, or does it, when you go in and \nyou look at the median nerve, what is causing inflammation to \nthe nerve? \nA.  I do not.  I cannot tell what’s causing it.... \nQ.  When was the very first time that you heard talk about this \ncondition of her being alleged to be work-related? \nA.  When you sent me a message about a deposition.   \nQ.  Okay.  Before I asked you for your deposition, did you \nhave any opinion at all about whether this condition of hers \nwas or was not work-related? \nA.  I did not have an opinion.... \nQ.  Would it be fair to say that she has, at least, indicated that \nher symptoms she feels are worse when she’s using her \nhands at work? \nA.  Correct.   \nQ.  Would it also be correct to say that there’s a temporal \nproximity between her blood sugars being out of control and \nher presentation for treatment of those symptoms, both in \nterms of coming – showing up, and also reporting severity? \nA.  Correct.   \nQ.  Is there any way to state within a reasonable degree of \nmedical certainty which of these causes or potential causes is \n\nGUTIERREZ - H302799  9\n  \n \n \nthe cause of her carpal tunnel syndrome, as opposed to the \nsymptoms just manifesting at a given time? \nA.  It is not possible to say.   \nQ.  Would it be fair to say that it’s not surprising that she has \nsymptoms of pain and these carpal tunnel symptoms when \nshe’s using her hands a lot? \nA.  It is fair to say that.  Correct.   \nQ.  Because – and then, if she has carpal – underlying carpal \ntunnel syndrome from whatever reason, it would be – would it \nbe expected for her to have those symptoms manifest when \nshe’s using her hands a lot? \nA.  Yes.   \n \n The claimant’s attorney cross-examined Dr. Chen: \nQ.  I represent your patient, Giselda Gutierrez, and I am just \ntrying to figure out a little bit about this.  Because I thought I \nheard you say, at the very beginning of your deposition, that \nyou would not say that diabetes is causative of carpal tunnel \nsyndrome. \nA.  Correct.  I said “correlation,” but not causation.   \nQ.  Okay.  So a person who does rapid and repetitive work – \nwe’re talking about maybe 50 breasts per minute – who has \ndone that for, not only weeks and months, but years, would \nthat be a common cause of carpal tunnel syndrome? \nA.  No.  The literature used to think that repetitive motion \ncaused it.  The newer literature does not support that.  \nUsually, it is repetitive trauma to it, such as, like, \njackhammering for long periods of time.  But repetitive action \nis not – the newer literature shows that actions are not a \ncause, but it can exacerbate the symptoms.  But it is not the \ncause, typically. \nQ.  So the grasping and gripping of items in a quick way, the \nsqueezing of your hands that we’ve thought, for years, was \ncausative of carpal tunnel syndrome, would that be \nconsidered a trauma, repeatedly, over weeks and months? \nA.  No.  No.  They’re very specific on it, where it’s – it’s a \nrepetitive – not grasping, but it is repetitive trauma to the \ncarpal tunnel.... \nQ.  How would there be a correlation between someone that \ndoes this – not just repetitive, but the rapid and repetitive, \n\nGUTIERREZ - H302799  10\n  \n \n \nsame motion, in a rapid way, over and over – how would that \nbe correlated? \nA.  So – to me, carpal tunnel is idiopathic.  The majority of \ncarpal tunnel symptoms are because, hey, you’re getting \nolder.  When you move your wrist around, it causes \ncompression - or it causes the tunnel to become smaller.  So \nif you’re moving your wrist around, it doesn’t cause carpal \ntunnel, but it causes the wrist to be smaller, which is why we \nhave your wear braces.  So when your wrist is straight, it is \nbigger.  So the motion of your wrist, when you move it up and \ndown, makes that tunnel smaller, but it does not cause – \nwhich is the thickening of the transverse carpal ligament \nwhich is what is the – what is – what we think is the cause of \nthe carpal tunnel....Or of carpal tunnel syndrome.... \n \n A hearing was held on November 29, 2023.  The claimant testified \nthat she had returned to work for the respondent-employer, but that she \ncontinued to suffer with pain in her right hand and right elbow.  An \nadministrative law judge filed an opinion on December 19, 2023 and found \nthat the claimant failed to prove she sustained a compensable injury.  The \nclaimant appeals to the Full Commission.   \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(ii)  An injury causing internal or external physical harm to the \nbody and arising out of and in the course of employment if it is \nnot caused by a specific incident and is not identifiable by time \nand place of occurrence, if the injury is: \n(a)  Caused by rapid repetitive motion.  Carpal tunnel \nsyndrome is specifically categorized as a compensable injury \nfalling within this definition[.]   \n \n\nGUTIERREZ - H302799  11\n  \n \n \n Ark. Code Ann. §11-9-102(4)(A)(ii)(Repl. 2012) explicitly provides \nthat carpal tunnel syndrome is both compensable and falls within the \ndefinition of rapid repetitive motion.  Kildow v. Baldwin Piano & Organ, 333 \nArk. 335, 969 S.W.2d 190 (1998).   \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) further provides, in \npertinent part: \n(E)  BURDEN OF PROOF.  The burden of proof of a \ncompensable injury shall be on the employee and shall be as \nfollows: \n(ii)  For injuries falling within the definition of compensable \ninjury under subdivision (4)(A)(ii) of this section, the burden of \nproof shall be by a preponderance of the evidence, and the \nresultant condition is compensable only if the alleged \ncompensable injury is the major cause of the disability or need \nfor treatment.   \n \n Preponderance of the evidence means the evidence having greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 \nArk. App. 269, 101 S.W.3d 252 (2003).  “Major cause” means “more than \nfifty percent (50%) of the cause,” and a finding of major cause shall be \nestablished according to the preponderance of the evidence.  Ark. Code \n\nGUTIERREZ - H302799  12\n  \n \n \nAnn. §11-9-102(14)(Repl. 2012).  The claimant must prove that the alleged \ncompensable injury, not her work, is the major cause of the disability or \nneed for treatment.  Medlin v. Wal-Mart Stores, Inc., 64 Ark. App. 17, 977 \nS.W.2d 239 (1998).     \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable gradual onset injury to her right wrist and elbow on \nor about June 15, 2022.”  The Full Commission does not affirm the \nadministrative law judge’s finding.  The Full Commission finds that the \nclaimant proved she sustained a compensable injury. \n The claimant testified that she became employed with the \nrespondents in 2003, and the parties stipulated that the employment \nrelationship existed on June 15, 2022.  The claimant testified that her right \nwrist began hurting in 2022 as a result of her strenuous work activities for \nthe respondents.  The determination of the credibility and weight to be given \na witness’s testimony is within the sole province of the Commission.  \nMurphy v. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007).  The \nFull Commission finds in the present matter that the claimant was a credible \nwitness.  The claimant credibly described processing chickens for the \nrespondents on an assembly line, which work began in 2003.  The claimant \ntestified that she reported her work-related symptoms to a company nurse \n\nGUTIERREZ - H302799  13\n  \n \n \nand a supervisor beginning in 2022.  The claimant testified that the pain \nradiated from her right wrist to her elbow.  The claimant testified that she \nsought treatment with Dr. Smiley who referred her to Dr. Chen. \n The medical evidence of record corroborated the claimant’s \ntestimony.  Dr. Chen reported beginning in October 2022 that the claimant \nwas suffering from pain in her bilateral extremities but primarily pain in her \nright wrist.  An October 6, 2022 report from Mercy Clinic Orthopedics \nRogers confirmed that the claimant’s pain was worsened by her “Work.”  Dr. \nChen noted that the claimant had been suffering from pain for three \nmonths.  Dr. Chen assessed “uncontrolled diabetes” and “Right carpal \ntunnel syndrome.”  Dr. Johnson performed objective electrodiagnostic \ntesting on November 30, 2022 and assessed “Bilateral carpal tunnel \nsyndrome,” “severe on the right and moderate on the left.”  Dr. Johnson \nrecommended “Bilateral carpal tunnel releases beginning on the right.”  Dr. \nChen performed a right carpal tunnel release on January 16, 2023.   \n The Full Commission finds that the claimant proved she sustained a \ncompensable injury in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(ii)(a)(Repl. 2012).  We recognize Dr. Chen’s deposition testimony \nconcerning his diagnosis of “uncontrolled diabetes” with regard to the \nclaimant’s carpal tunnel syndrome.  Dr. Chen found that it was “not possible \nto say” whether the claimant’s symptoms were related to carpal tunnel \n\nGUTIERREZ - H302799  14\n  \n \n \nsyndrome rather than diabetes.  Dr. Chen opined at deposition that the \nclaimant’s carpal tunnel syndrome was “idiopathic” and was not related to \nrepetitive trauma.  The Commission has the authority to accept or reject \nmedical opinion and the authority to determine its medical soundness and \nprobative force.  Green Bay Packaging v. Bartlett, 67 Ark. App. 332, 999 \nS.W.2d 692 (1999).  It is within the Commission’s province to weigh all of \nthe medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present \nmatter, the Full Commission finds that Dr. Chen’s opinion with regard to \ncausation is entitled to minimal evidentiary weight.  The evidence of record \ndoes not support Dr. Chen’s opinion that the claimant’s carpal tunnel \ncondition was “idiopathic” or was causally related to “uncontrolled diabetes.”          \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that she sustained a compensable injury.  \nThe claimant proved that she sustained a compensable right carpal tunnel \nsyndrome injury which caused physical harm to the body, arose out of and \nin the course of the claimant’s employment with the respondents, and was \nnot identifiable by time and place of occurrence.  The claimant also \nestablished a compensable injury by medical evidence supported by \nobjective findings, namely Dr. Johnson’s assessment of carpal tunnel \nsyndrome based on objective electrodiagnostic testing.  The claimant \n\nGUTIERREZ - H302799  15\n  \n \n \nproved that the compensable injury was the major cause of her disability \nand need for treatment.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she sustained a compensable right carpal tunnel \nsyndrome injury in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(ii)(a)(Repl. 2012).  The claimant proved that she provided timely \nnotice on or about June 15, 2022, when the claimant reported the \ncompensable injury to a company nurse and a supervisor.  The record \ntherefore indicates that the employer had knowledge of the injury in \naccordance with Ark. Code Ann. §11-9-701(b)(1)(A)(Repl. 2012).  The \nevidence of record demonstrates that the assessment of “Right lateral \nepicondylitis” was a natural consequence of the claimant’s compensable \nright carpal tunnel syndrome injury.  See Nichols v. Omaha Sch. Dist., 2010 \nArk. App. 194, 374 S.W.3d 148.  The claimant proved that the medical \ntreatment of record, including surgery performed by Dr. Chen and \nsubsequent treatment provided by Audrey C. Smith, was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nFinally, the evidence demonstrates that the claimant remained within a \nhealing period and did not return to work beginning January 16, 2023 and \ncontinuing until February 1, 2023.  The claimant therefore proved that she \nwas entitled to temporary total disability beginning January 16, 2023 and \n\nGUTIERREZ - H302799  16\n  \n \n \ncontinuing until February 1, 2023.  See Wheeler Constr. Co. v. Armstrong, \n73 Ark. App. 146, 41 S.W.3d 822 (2001). \n The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \non appeal, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012).   \n IT IS SO ORDERED.        \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved by a preponderance of the evidence that she sustained a \ncompensable gradual onset injury to her right wrist. \nIt is undisputed that the claimant was diagnosed with bilateral carpel \ntunnel syndrome in November of 2022 and underwent right carpel tunnel \nrelease in January of 2023.  What is at issue here is the whether the \n\nGUTIERREZ - H302799  17\n  \n \n \nclaimant has established that her work for the respondent employer was the \nmajor cause of her right carpal tunnel syndrome as required by our Rules.  \nIt is well settled that carpal tunnel syndrome (CTS) constitutes a \ngradual onset injury and the claimant is therefore not required to establish \nthat her injury was caused by rapid and repetitive motion.  Kildow v. \nBaldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).  However, \nshe must still prove that (1) her CTS arose out of and in the course and \nscope of her employment; (2) her injury caused internal or external physical \nharm to the body that required medical services or resulted in disability; and \n(3) the injury was the major cause of the disability or need for treatment. \nArk. Code Ann. § 11-9-102(4)(A)(i),(ii), (E)(ii). \nHere, the claimant was diagnosed with Type II Diabetes twelve years \nprior to the onset of her CTS symptoms.  (Hrng.  Tr., P. 12).  At the \nclaimant’s initial visit with Dr. Andreas Chen on October 6, 2022, the \nclaimant was living with uncontrolled diabetes and her A1c was greater than \n12.  (Hrng. Tr., P. 16; Cl. Ex. 1, P. 1).  In his deposition testimony, Dr. Chen \nexplained the relationship between diabetes and CTS symptoms: \nQ: (by Mr. Swearingen) In the \nOctober 6th chart dictation, \nthere’s mention of \nuncontrolled diet.  She’s an \nuncontrolled diabetic with \nan A1C greater than 12. \nAnd why is that, in your \nopinion, relevant to a \n\nGUTIERREZ - H302799  18\n  \n \n \ndiscussion of carpal tunnel \nor upper extremity \ncomplaints like this?  \n \nA: So there are a couple of \nreasons.  One is that \ndiabetes can increase your \nsymptoms of carpal tunnel \nsyndrome. Number two is \nthat I would not intervene on \nany -- I would not intervene \non her care, if her diabetes \nwas uncontrolled, so -- \nbecause the risk of infection \ngoes up significantly, if her -\n- your sugars are \nuncontrolled.  I would -- that \nis my way of saying, hey, I \nwould not operate on her. It \nalso says, hey, I would not \ngive her a steroid injection, \neither. \n \n(Depo. of Dr. Andreas Chen, P. 11). \n Dr. Chen testified that some diabetics are more likely to develop \nCTS, and that the glucose in a diabetic person can accumulate around the \nmedian nerve and cause inflammation in the carpal tunnel which tends to \nproduce symptoms.  (Depo., P. 12).  In fact, resolution of uncontrolled blood \nsugar can decrease or even eliminate the symptoms of CTS.  (Depo., P. \n15).  Dr. Chen stated when he performs surgery and releases the median \nnerve within the carpal tunnel, there is no way to determine what is causing \nthe inflammation, whether it is CTS or diabetes.  In other words, Dr. Chen \ncannot determine whether the CTS is a result of job activities or diabetes.            \n\nGUTIERREZ - H302799  19\n  \n \n \n(Depo., Pp. 13,14).  Dr. Chen testified that he was unwilling to state within a \nreasonable degree of medical certainty that the claimant’s CTS resulted \nfrom her job activities: \nQ: (by Mr. Swearingen) So as \nwe sit here today, with Ms. \nGutierrez specifically, is \nthere any way -- and let me \npreface this by saying, \nwould it be correct to say \nthat Ms. Gutierrez gave you \na history of noticing \nproblems with her hands \nwhen she used them a lot at \nwork? \n \nA: Ask that question again. \n \nQ: Sure.  And I’m going back to \nthe very, very –  \n  \nA: Yes. \n \nQ: -- intake form. She said -- \n“What makes your pain \nworse?” “Work.”  \n \nA: Correct. \n \nQ: And she has a hand-\nintensive job. Would it be \nfair to say that she has, at \nleast, indicated that her \nsymptoms she feels are \nworse when she’s using her \nhands at work?  \n \nA: Correct.  \n \n\nGUTIERREZ - H302799  20\n  \n \n \nQ: Would it also be correct to \nsay that there’s a temporal \nproximity between her blood \nsugars being out of control \nand her presentation for \ntreatment of those \nsymptoms, both in terms of \ncoming -- showing up, and \nalso reporting severity? \n \nA: Correct.  \n \nQ: Is there any way to state \nwithin a reasonable degree \nof medical certainty which of \nthese causes or potential \ncauses is the cause of her \ncarpal tunnel syndrome, as \nopposed to the symptoms \njust manifesting at a given \ntime?  \n \nA: It is not possible to say.  \n \nQ: Would it be fair to say that \nit’s not surprising that she \nhas symptoms of pain and \nthese carpal tunnel \nsymptoms when she’s using \nher hands a lot? \n  \nA: It is fair to say that.  Correct. \n \nQ: Because -- and then, if she \nhas carpal -- underlying \ncarpal tunnel syndrome \nfrom whatever reason, it \nwould be -- would it be \nexpected for her to have \nthose symptoms manifest \nwhen she’s using her hands \na lot? \n\nGUTIERREZ - H302799  21\n  \n \n \n \nA: Yes. \n \nQ: Would it also be expected \nthat -- if her blood sugar \nbecomes more out of \ncontrol, getting into those \nupper levels, like 250, 300, \nwould it also be expected \nfor her to experience \nsymptoms from her carpal \ntunnel syndrome at those \ntimes where her blood \nsugar is way out of control? \n \nA: Yes. \n \nQ: Would it be fair to say that \ncorrelation doesn’t \nnecessarily mean \ncausation? \n \nA: Correct. \n \n(Depo., Pp. 26-28). \nThe Commission has the authority to accept or reject medical \nopinions.  Williams v. Ark. Dept. of Community Corrections, 2016 Ark. App. \n427, 502 S.W. 3d 530 (2016).  Furthermore, it is the Commission's duty to \nuse its experience and expertise in translating the testimony of medical \nexperts into findings of fact and to draw inferences when testimony is open \nto more than a single interpretation.  Schulgen v. Lowe's Home \nImprovement Ctrs., 2022 Ark. App. 166, 644 S.W.3d 433 (2022). \n\nGUTIERREZ - H302799  22\n  \n \n \nDr. Chen’s opinion is entitled to significant weight as the claimant’s \ntreating and operating physician.  In his testimony, Dr. Chen was explicit in \nhis refusal to state within a reasonable degree of medical certainty that the \nclaimant’s work was the cause of her CTS.  This opinion is based on his \nexperience, training, and current medical literature which is widely accepted \nwithin the medical community.  (Depo., P. 38).  \nBased on Dr. Chen’s testimony, the claimant has failed to prove by a \npreponderance of the evidence that her job duties were the major cause of \nher need for medical treatment.  It is undisputed that the claimant presented \nto Dr. Chen with uncontrolled diabetes and an elevated A1c greater than 12 \nat the same time that her complaints of CTS symptoms began.  Dr. Chen \ntestified he cannot state within a reasonable degree of medical certainty the \nclaimant’s CTS issues are related to her work for the respondent employer. \nThe claimant has failed to prove that her work for the respondent employer \nwas the greater cause for her CTS than her uncontrolled blood sugar. \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":33173,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H302799 GISELA GUTIERREZ, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYNET CORPORATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 31, 2024","outcome":"denied","outcomeKeywords":["granted:1","denied:2"],"injuryKeywords":["wrist","carpal tunnel","back","repetitive"],"fetchedAt":"2026-05-19T22:29:45.561Z"},{"id":"full_commission-H202720-2024-05-31","awccNumber":"H202720","decisionDate":"2024-05-31","decisionYear":2024,"opinionType":"full_commission","claimantName":"William Middleton","employerName":"L & L Metal Fabrication, Inc","title":"MIDDLETON VS. L & L METAL FABRICATION, INC. AWCC# H202720 MAY 31, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Middleton_William_H202720_20240531.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Middleton_William_H202720_20240531.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H202720 \n \nWILLIAM L. MIDDLETON, \nEMPLOYEE \n \nCLAIMANT \nL & L METAL FABRICATION, INC.,  \nEMPLOYER \n \nRESPONDENT \nAMERISURE INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 31, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MATTHEW J. KETCHAM, \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \n ORDER \n The respondents in the above-styled matter move the Full \nCommission to strike the claimant’s brief.  The Full Commission grants the \nrespondents’ motion.   \n An administrative law judge filed an opinion on November 30, 2023.  \nThe administrative law judge found that the claimant was “barred from \npursuing this matter because he elected a remedy in civil court and \nresolved that matter via settlement.”  The administrative law judge denied \nand dismissed the claim, and the claimant filed a timely notice of appeal to \nthe Full Commission.   \n\nMIDDLETON - H202720  2\n  \n \n \n The Clerk of the Commission thereafter establishing a briefing \nschedule for the parties.  The claimant subsequently requested a 30-day \nextension to which the respondents did not object.  A Legal Services \nSpecialist informed the parties, “Claimant’s brief will now be due 2/12/24.  \nRespondents’ brief will be due 2/26/24.  Claimant’s reply brief will be due \n3/4/24.”   \n The claimant’s brief was therefore due on Monday, February 12, \n2024.  The claimant did not file a brief until Wednesday, February 14, 2024.  \nThe respondents correctly state that the Clerk of the Commission's briefing \nschedule was “clear and unambiguous” and that the Full Commission \nshould consequently strike the claimant’s brief.   \n Because the claimant’s brief was not timely filed, the Full \nCommission grants the respondents’ motion to strike.  The Full Commission \naccepts the respondents’ brief, which was timely filed on February 26, \n2024.   \n The Full Commission directs the Clerk of the Commission to place \nthis matter on our submission docket, so that we may adjudicate a statutory \nde novo review.  The claimant’s brief filed February 14, 2024 is stricken and \nshall not be considered. \n \n \n\nMIDDLETON - H202720  3\n  \n \n \n IT IS SO ORDERED.    \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2639,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H202720 WILLIAM L. MIDDLETON, EMPLOYEE CLAIMANT L & L METAL FABRICATION, INC., EMPLOYER RESPONDENT AMERISURE INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 31, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.567Z"},{"id":"alj-H307602-2024-05-30","awccNumber":"H307602","decisionDate":"2024-05-30","decisionYear":2024,"opinionType":"alj","claimantName":"Daniel Conradie","employerName":"Driver Farms Partnership","title":"CONRADIE VS. DRIVER FARMS PARTNERSHIP AWCC# H307602 MAY 30, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Conradie_Daniel_H307602_20240530.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Conradie_Daniel_H307602_20240530.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H307602 \n \nDANIEL A. CONRADIE, \nEMPLOYEE                                                                                                              CLAIMANT \n \nDRIVER FARMS PARTNERSHIP, \nEMPLOYER                                                                                                         RESPONDENT  \n \nSTONETRUST COMMERCIAL INS. CO., \nCARRIER/TPA                                                                                                    RESPONDENT \n \nOPINION FILED MAY 30, 2024 \n \nHearing conducted on Wednesday, May 3,  2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant, Mr. Daniel A. Conradie, pro se, of Turrell, Arkansas, did not appear in person at \nthe hearing.  \n \nThe Respondents were represented by the Honorable Michael Ryburn, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on May 3, 2024, in Forrest City, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe Claimant worked for the Respondent/Employer as a laborer. The Claimant allegedly \ninjured several body parts while working for Respondent/Employer on August 19, 2023. Admitted \ninto evidence was Respondent Exhibit 1, Form AR-C and Motion to Dismiss, consisting of two \npages. Commission Exhibit 1, correspondence, and Certified U.S. Mail return receipts, consisting \nof six pages. I have also blue-backed Form AR-1 and Form AR-2, as discussed infra. \nThe record reflects on November 20, 2023, a Form AR-C was filed with the Commission \nby  then-attorney  Mark  Peoples. On December 5, 2023,  a  Form  AR-1  was  filed  in  this  case, \n\nCONRADIE, AWCC No. H307602 \n \n2 \n \nreflecting that Claimant purportedly injured his groin, knee, neck, and shoulder when he slipped \nin a muddy drainage ditch when walking back from the farm fields. Respondents on December 8, \n2023, filed a Form AR-2, representing the denial of the claim. Attorney Michael Ryburn entered \nhis appearance for Respondents on November 29, 2023.  \nOn January 9,  2024, Attorney  Peoples  filed  a  Motion  to  Withdraw  citing  differences  of \nopinion  regarding  the  prosecution  of  the  claim.  The  Full  Commission  granted  the  motion  on \nFebruary  8,  2024. Respondents’ counsel then filed a Motion to Dismiss on February 12,  2024, \nrequesting this claim be dismissed for a lack of prosecution. The Claimant was sent, via certified \nand  regular  U.S.  Mail, notice of  the Motion  to Dismiss to  his last  known  address of  record on \nFebruary 13, 2024. The certified notice was unclaimed, and the notice sent regular U.S. Mail was \nreturned to the Commission. The Claimant did not leave a forwarding address with the U.S. Postal \nService. Nevertheless, in accordance with applicable Arkansas law, the Claimant was mailed due \nand proper legal notice of the Respondents’ Motion to Dismiss hearing notification at his current \naddress of record via the United States Postal Service (USPS), First Class Certified Mail, Return \nReceipt Requested, and regular First-Class Mail on March 8, 2024. The certified notice was again \nunclaimed, and the notice sent regular First-Class mail was returned to the Commission. However, \nthe difference this time was that the certified mail had the word “Refused” on it and was dated \nApril 29, 2024.  Due to a hearing date change, another hearing notification was sent on March 13, \n2024, to the address of record and the First Class Certified Mail, Return Receipt Requested was \nreturned with “Refused” written on it and dated March 15, 20224, and the regular First-Class Mail \nwas returned to the Commission.  The hearing took place on May 3, 2024. As mentioned before, \nthe Claimant did not show up to the hearing. \n \n\nCONRADIE, AWCC No. H307602 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant and  Respondents  both  had  reasonable  notice of  the May 3,  2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on the Respondents’ Motion to Dismiss. Commission Exhibit 1 provides \nmultiple Certified U.S. Mail Return Receipts. No mail was claimed by the Claimant. The notices \nsent to Claimant’s last known address via regular First-Class mail were likewise returned to the \nCommission. It stands to reason that it is the responsibility of both the Claimant and Respondent \nto provide the Commission with their proper and most up to date mailing address. My review of \nthe evidence in the record is clear, the Claimant has failed to do so. Thus, given the circumstances, \nI find by the preponderance of the evidence that reasonable notice was given to the Claimant.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant has filed his Form AR-C on \nNovember 20, 2023. Since then, Claimant has taken no action in furtherance of the prosecution of \nthis claim. Therefore, I do find the Respondent has proven by the preponderance of the evidence \n\nCONRADIE, AWCC No. H307602 \n \n4 \n \nthat Claimant has failed to prosecute his claim. And as a result, Respondents’ Motion to Dismiss \nshould be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted and this claim is hereby dismissed without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6606,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H307602 DANIEL A. CONRADIE, EMPLOYEE CLAIMANT DRIVER FARMS PARTNERSHIP, EMPLOYER RESPONDENT STONETRUST COMMERCIAL INS. CO., CARRIER/TPA RESPONDENT OPINION FILED MAY 30, 2024 Hearing conducted on Wednesday, May 3, 2024, before the Arkansas Workers’ Compensatio...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:3"],"injuryKeywords":["knee","neck","shoulder","back"],"fetchedAt":"2026-05-19T22:54:54.074Z"},{"id":"alj-H206824-2024-05-30","awccNumber":"H206824","decisionDate":"2024-05-30","decisionYear":2024,"opinionType":"alj","claimantName":"Mallory Morrow","employerName":"Baptist Memorial Crittenden","title":"MORROW VS. BAPTIST MEMORIAL CRITTENDEN AWCC# H206824 MAY 30, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Morrow_Mallory_H206824_20240530.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Morrow_Mallory_H206824_20240530.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206824 \n \nMALLORY MORROW, \nEMPLOYEE                                                                                                              CLAIMANT \n \nBAPTIST MEMORIAL CRITTENDEN, \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nBRENTWOOD SERVICES ADMINISTRATORS, INC., \nTHIRD-PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED MAY 30, 2024 \n \nHearing conducted on Wednesday, May 3,  2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant, Ms. Mallory K. Morrow, pro se, of Wynne, Arkansas, did not appear in person at \nthe hearing.  \n \nThe Respondents were represented by the Honorable Jacob Swatley of Memphis, Tennessee. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on May 3, 2024, in Forrest City, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe  Claimant  worked  for  the  Respondent/Employer  as  a registered  nurse. The  Claimant \nallegedly contracted COVID-19 while working in the emergency room for Respondent/Employer \non October  17,  2020. She reported  this  injury  to  Respondent/Employer  on October 3,  2022. \nAdmitted  into  evidence  was  Commission  Exhibit  1,  correspondence,  and  Certified  U.S.  Mail \nreturn  receipts,  consisting  of nine pages. I  have  also  blue-backed Form  AR-1,  Form  AR-2, and \nForm AR-C, as discussed infra. \n \n\nMORROW, AWCC No. H206824 \n \n2 \n \n \nThe record reflects on September 21, 2022, a Form AR-C was filed with the Commission. \nOn October 4, 2022,  a  Form  AR-1  was  filed  in  this  case,  reflecting  that  Claimant  purportedly \ncontracted  COVID-19  while  working  in  the  emergency  room  for  the  Respondent/Employer  on \nOctober 17, 2020. Respondents on October 4, 2022, filed a Form AR-2, representing that Claimant \ndid not contract COVID-19 during the course and scope of her employment. Attorney J. Matthew \nKirby entered his appearance for Respondents, via letter, on October 11, 2022. That entry letter \nfurther stated that Respondent/Employer did not receive timely notice of alleged injury.  \nOn February 14, 2023, the Claimant requested a hearing via email. Both parties agreed to \nmediation  by  conference  call  on  March  8,  2023, but did  not  reach  a  resolution. Respondents’ \ncounsel then filed a Motion to Dismiss on February 26, 2024, requesting this claim be dismissed \nfor a lack of prosecution. The Claimant was sent a certified notice of the Motion to Dismiss to her \nlast known address of record on March 4, 2024. The certified notice was unclaimed.  The same \nnotice  was  also  sent  regular  First-Class  mail  on  the  same  day  and  was likewise returned  to  the \nCommission. Thus, in accordance with applicable Arkansas law, the Claimant was mailed due and \nproper legal notice of the Motion to Dismiss hearing at her current address of record via the United \nStates Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and regular \nFirst-Class  Mail.  The  certified hearing notice was unclaimed  by the Claimant;  and  the  hearing \nnotice sent regular First-Class Mail was return to the Commission. The hearing took place on May \n3, 2024. As mentioned before, the Claimant did not show up to the hearing. \n \n \n \n\nMORROW, AWCC No. H206824 \n \n3 \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant and  Respondents  both  had  reasonable  notice of  the May 3,  2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith  proper  notice, on  the Respondents’ Motion  to Dismiss. Commission  Exhibit  1  provides \nmultiple Certified U.S. Mail Return Receipts. Neither receipt was claimed by the Claimant; and \nall notices sent to Claimant’s last known address via regular First-Class mail were returned to the \nCommission. It is the responsibility of the Claimant to provide the Commission with her proper \naddress along  with  any  updates  thereafter. I  find  the  Claimant  did  not  provide  the  Commission \nwith an updated address. Thus, I find by the preponderance of the evidence, based on my review \nof the Commission’s file, that reasonable notice was given to the Claimant.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant and  Respondents  entered \nmediation  on  March  8,  2023,  with  no  resolution. Since  then,  Claimant has  taken  no  action  in \n\nMORROW, AWCC No. H206824 \n \n4 \n \nfurtherance of the prosecution of this claim. The Claimant has failed to provide the Commission \nwith an updated address. Therefore, I do find by the preponderance of the evidence that Claimant \nhas  failed  to  prosecute  her claim. And  as  a  result, Respondents’ Motion to Dismiss should be \ngranted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted and this claim is hereby dismissed without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6335,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H206824 MALLORY MORROW, EMPLOYEE CLAIMANT BAPTIST MEMORIAL CRITTENDEN, SELF-INSURED EMPLOYER RESPONDENT BRENTWOOD SERVICES ADMINISTRATORS, INC., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED MAY 30, 2024 Hearing conducted on Wednesday, May 3, 2024, befor...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:54:56.143Z"},{"id":"alj-G600552-2024-05-29","awccNumber":"G600552","decisionDate":"2024-05-29","decisionYear":2024,"opinionType":"alj","claimantName":"Tammy Miller","employerName":"Mhm Support Services","title":"MILLER VS. MHM SUPPORT SERVICES AWCC# G600552 MAY 29, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MILLER_TAMMY_G600552_20240529.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MILLER_TAMMY_G600552_20240529.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G600552 \n \nTAMMY L. MILLER, Employee                                                                       CLAIMANT \n \nMHM SUPPORT SERVICES, Employer                                             RESPONDENT  #1                         \n \nMERCY HEALTH, Carrier/TPA                                                            RESPONDENT #1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND             RESPONDENT #2 \n \n \n OPINION FILED MAY 29, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondent #1 represented by RANDY P. MURPHY, Attorney, Little Rock, Arkansas. \n \nRespondent #2 represented by DAVID L. PAKE, Attorney, Little Rock, Arkansas; \nalthough not present at hearing. \n \n \n STATEMENT OF THE CASE \n  \n On May 8, 2024, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on September 27, 2023 and a pre-\nhearing  order  was filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection.  In \naddition, respondent #1’s letter brief dated June 9, 2022 has been blue-blacked and made \na part of the record herein. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n\nMiller – G600552 \n \n2 \n \n 2.    All prior opinions are final. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1.    Claimant’s entitlement to permanent  and  total  disability  benefits,  or,  in  the \nalternative, additional wage loss disability. \n 2.   Attorney fee. \nThe  claimant  contends that  her  condition  has  objectively  and  permanently  \nworsened  since a prior  wage  loss  determination and  that  as  a  result  of  that  worsening \nshe is now permanently and totally disabled. In the alternative, she contends that she is \nentitled  to  wage  loss  disability  in  excess  of  what  has  previously  been  awarded.    The \nclaimant contends her attorney is entitled to an attorney’s fee on all disability benefits not \npreviously paid. \nRespondent  #1  contends that  claimant  is receiving  appropriate  benefits  for  her \ncompensable injury.  Respondents further contend that claimant is not permanently and \ntotally disabled.  Finally, respondent #1 contends that claimant is not entitled to additional \nwage loss disability benefits. \nRespondent #2 defers to the outcome of litigation on the issues of PTD and wage \nloss and waives its appearance at the hearing.  The Trust Fund has not controverted the \nclaim against it. \nFrom a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nMiller – G600552 \n \n3 \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non September  27,  2023 and  contained  in  a  pre-hearing  order  filed that  same  date are \nhereby accepted as fact. \n 2.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she has suffered a permanent physical impairment rating in an amount equal to 30% \nto the body as a whole for her compensable left hip injury. \n 3.   Claimant has met her burden of proving by a preponderance of the evidence \nthat she has suffered a permanent impairment in an amount equal to 5% to the body as \na whole as a result of her compensable pelvic floor dysfunction. \n 4.   Claimant has met her burden of proving by a preponderance of the evidence \nthat she is permanently totally disabled as a result of her compensable injury. \n 5.   Respondent  #1  has  controverted  claimant’s  entitlement  to  permanent  total \ndisability benefits.    \n \n          FACTUAL BACKGROUND \n Claimant is a 51-year-old woman who began working for respondent as an RN on \nMarch 30, 2015.  On January 22, 2016, she was running down a hallway to get a blood \nconsent form when her scissors fell out of her scrub pocket.  Claimant turned to see what \nhad fallen and when she did, she fell to the floor.  As a result of the fall, claimant had pain \nin her knee, hip, and left buttock.   \n Claimant has undergone extensive medical treatment since January 22, 2016, with \n\nMiller – G600552 \n \n4 \n \nmultiple  surgeries.    On  January  5,  2017,  Dr.  Blankenship  performed  a  lumbar  fusion \nprocedure  at  L4-5  and  L5-S1.    He  also  performed  a  revision  with  decompression  and \nposterior lateral fusion on September 13, 2017.  On December 26, 2017, Dr. Blankenship \nperformed a left SI joint fusion and on April 17, 2018, he performed a right SI joint fusion.   \n In addition, on March 7, 2018, Dr. Sites performed an IT band release; periformis \nrelease of the left hip; a greater trochanteric bursectomy of the left hip;  and debridement \nof the gluteus medius tendon with repair of the left hip.  Claimant’s final surgical procedure \nwas performed by Dr. Dougherty on December 21, 2018, which included a gluteus medius \nrepair; periformis resection; and psoas resection.   \n This claim has been the subject of multiple hearings.  Following a hearing on June \n12, 2019, this administrative law judge found, inter alia, that claimant had proven that she \nsuffered a compensable injury to her left hip, left knee, and low back on January 22, 2016.  \nI  also  found  that  claimant  had  failed  to  prove  that her  SI  joint  complaints  were  a \ncompensable consequence of her compensable injury. Claimant was awarded medical \ntreatment for her compensable injury and temporary total disability benefits from January \n23, 2016 through a date yet to be determined. \n That opinion was appealed by both parties and in an opinion filed June 4, 2020 the \nFull Commission affirmed the finding that claimant had proven a compensable injury to \nher left hip, left knee, and low back.  The Full Commission reversed the SI joint finding \nand  held  that claimant had  proven  that  her  SI  joint  complaints  were  related  to  her \ncompensable injury.   \n A  second  hearing  was  conducted  on  January  13,  2021.    In  addition  to  the \nstipulations from the first hearing, the parties also agreed to stipulate that claimant had \n\nMiller – G600552 \n \n5 \n \nreached maximum medical improvement on June 30, 2019, and that she sustained a 14% \nimpairment rating to the body as a whole as a result of the injuries to her back and SI \njoints.  Claimant contended that she was permanently totally disabled as a result of the \ncompensable  injury,  or  alternatively  entitled  to  wage  loss  in  excess  of  her  impairment \nrating.    In  an  opinion  filed  February  25,  2021,  this  administrative  law  judge  found  that \nclaimant was not permanently totally disabled, but instead had suffered a loss in wage \nearning capacity in an amount equal to 60% to the body as a whole.  That opinion was \nappealed  by  the  claimant  and  cross-appealed  by  respondent  #1.    In  an  opinion  filed \nAugust  26,  2021,  the  Full  Commission  affirmed  and  adopted  the  February  25,  2021 \nopinion. \n Subsequent  to  the  second  hearing claimant returned  to  Dr.  Dougherty  for \nincreased pain in her left hip. Dr. Dougherty diagnosed claimant as suffering from pelvic \nfloor dysfunction which had not been addressed but was directly related to her prior injury \nand need for surgery.  He prescribed physical therapy for this condition.  In a report dated \nDecember  6,  2021,  Dr.  Dougherty  also  diagnosed  claimant  as  suffering  from  gluteal \ntendinitis of the left hip and noted that her exam was consistent with a partial thickness \ngluteus tear.  In a report dated January 19, 2022, Dr. Dougherty indicated that claimant \nneeded a diagnostic hip arthroscopy for a possible gluteus repair.  Prior to that procedure, \nhe noted  that claimant’s  lab  results  had been  reviewed and  that  her  ANA  was  positive \nand her vitamin D level was low.  He recommended that claimant see her primary care \nphysician to get those results under control before surgery could proceed.  On March 2, \n2022, Dr. Dougherty completed a work note indicating that claimant should be off work \nindefinitely beginning on November 3, 2022.   \n\nMiller – G600552 \n \n6 \n \n A third hearing was conducted on June 29, 2022 on the issue of whether claimant \nwas entitled to additional temporary total disability benefits beginning November 3, 2021 \nand continuing through a date yet to be determined.  In an opinion filed June 29, 2022, \nthis administrative law judge found that claimant was entitled to the requested temporary \ntotal disability benefits.  That opinion was not appealed. \n Since the time of the last hearing on June 29, 2022, claimant has continued to treat \nwith Dr. Mary Daut, who prescribes medication for chronic pain.  She also receives some \nmedication  from  her  primary  care  physician,  Dr.  DeClerk.    Claimant  did  not  undergo \nsurgery by Dr. Dougherty on her left hip, but continued under his care.  On February 13, \n2023,  Dr.  Dougherty  indicated  that  physical  therapy  had  helped  claimant’s  condition  a \nlittle but she continued to have hip pain.  He diagnosed her condition as complex regional \npain syndrome of the left lower limb; osteoarthritis of the left hip; and pain in the left hip.  \nHe also ordered a bone scan of the left hip to better assess her condition. \n Claimant returned to Dr. Dougherty on April 24, 2023, after the bone scan and he \nnoted that the scan was unremarkable with respect to her hip.  He also confirmed this \nduring his deposition testimony. \n Claimant’s last visit with Dr. Dougherty occurred on July 12, 2023, at which time \nhe noted that her symptoms had not improved since her last visit.  He also stated that she \nhad reached maximum medical improvement; that she had significant limitations in lifting  \nand ambulation; and assigned her an impairment rating in an amount equal to 30% to the \nbody as a whole for her hip. \n Claimant has filed this claim contending that she is permanently totally disabled, \nor alternatively entitled  to additional wage loss benefits. \n\nMiller – G600552 \n \n7 \n \n \nADJUDICATION \n Claimant contends that she is now permanently totally disabled as a result of her \nwork-related  injury.    Permanent  total  disability  is  defined  by  A.C.A.  §11-9-519(e)(1)  as \n“inability, because of compensable injury or occupational disease, to earn any meaningful \nwages  in  the  same  or  other  employment.”  Claimant  has  the  burden  of  proving  by  a \npreponderance of the evidence they are unable to earn any meaningful wage in the same \nor other employment.  A.C.A. §11-9-519(e)(2). \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has proven by preponderance of the evidence \nthat she is permanently totally disabled as a result of her compensable injury. \n At the second hearing in this claim the parties stipulated that claimant had a 14% \nimpairment rating to the body as a whole as a result of the injuries to her back and SI \njoints.    It  was  determined  that  claimant  had  failed  to  prove  that  she  was  permanently \ntotally disabled, but instead that she had suffered a loss in wage earning capacity in an \namount equal to 60% to the body as a whole.  This finding was affirmed and adopted by \nthe Full Commission in an opinion filed August 26, 2021.   \n Since  that  second  hearing  the  claimant  returned  to  Dr.  Dougherty  for  additional \nmedical  treatment  for  increased  hip  pain.    Dr.  Dougherty  testified  that  claimant  suffers \nfrom Greater Trochanteric Pain Syndrome in her left hip. \n \n  Q Okay.  All right.  What is your diagnosis of Ms. \n  Miller’s condition now? \n \n  A She has what’s called Greater Trochanteric \n\nMiller – G600552 \n \n8 \n \n  Pain Syndrome. \n \n  Q Okay. Tell me what that is. \n \n  A It’s just chronic pain about the hip.  It’s not really \n  trochanteric bursitis as an isolated entity.  So when you \n  tear tendons, when you sew them back down, they can \n  develop what’s called neovascularization, which can \n  cause continued pain when there’s an increased sub- \n  stance P, which is associated with pain that comes from \n  the repair site. \n \n \n In  his  report  dated  July  12,  2023,  Dr.  Dougherty  stated  that  claimant  had  an \nimpairment rating of 30% to the body as a whole for her hip injury.  He confirmed this 30% \nrating during his deposition testimony and indicated that the rating was based on the AMA \nGuides, Fourth Edition.   \n Respondent  contends  that  the  30%  rating  is  based  on  subjective  factors,  not \nobjective  findings  as  required  by  A.C.A.  §11-9-102(16).    However,  according  to  Dr. \nDougherty’s  testimony,  the  tendon  inflammation  in  claimant’s  left  hip  is  confirmed  by \nobjective findings and imaging studies.  There is no requirement that medical testimony \nbe based solely on objective findings, only that the record contains supporting objective \nfindings.   Ark.  Dep’t.  of  Corr. v.  Washington,  2024  Ark.  App.  181,  685    S.W.  3d  347; \nSingleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W. 3d 709 (2006).   \n Therefore, I find that the 30% impairment rating assigned by Dr. Dougherty is a \nvalid  rating.  This  rating  is  a  new  rating  assigned  after  the  last  hearing  on  claimant’s \nentitlement to wage loss.  Thus, in addition to the 14% impairment rating to the body as \na  whole  previously  assigned  to  claimant  for  her  back  injury, she  also  has  a  30% \nimpairment rating to the body as a whole for her left hip.   \n\nMiller – G600552 \n \n9 \n \n Claimant also contends that she is entitled to an impairment rating for her pelvic \nfloor dysfunction.  Dr. Dougherty described this dysfunction as follows: \n \nA So any time you have an injury about the hip, the \nmuscles that connect to the hip are actually very close to \nthe pelvic floor.  What we know through research and \npublished studies is, if you have hip pain, you can develop \npelvic floor dysfunction. \n \n So what that means is problems with urination, bladder \nretention, posture, simple things like that.  And so any time \nthat we do hip scopes now, we start - - we started recommend- \ning people do pelvic floor exercises. \n \nQ And did those exercises correct Ms. Miller’s problem, \nor does she still have a problem with control of her bladder? \n \nA She occasionally still has a struggle with it. \n \nQ She has testified in a deposition that she cannot control \nher bladder, and that she sometimes has issues with urgency, \nand she can’t get to the bathroom quick enough.  Is that \nconsistent with what you would expect, based upon your \nmedication evaluation? \n \nA Yes.  She - - the chronic pain leads to the chronic pelvic \nfloor dysfunction. \n \n \n Dr. Dougherty indicated at his deposition that he would not know how to calculate \nan  impairment  rating  for  pelvic  floor  dysfunction.    At  the  hearing,  claimant’s  counsel \nreferred  to  pages  149 and  254  of  the AMA  Guides,  Fourth  Edition,  as  appropriate  for \nconsideration in assessing an impairment rating.  The Commission may assess its own \nimpairment rating rather than rely solely on the determination of a rating assigned by a \nphysician.  Carrick v. Baptist Health, 2022 Ark. App. 134, 643 S.W. 3d 466.  In this case, \nI find that Table 17 on page 149 of the AMA Guides is appropriate as it deals with bladder \n\nMiller – G600552 \n \n10 \n \ndysfunction resulting from spinal cord and central nervous system disorders.  The table \nassigns  a  1-9  percent  to  the  body  as  a  whole  for  a  patient  that  has  some  degree  of \nvoluntary  control  but  is  impaired  by  urgency  or  intermittent  incontinence.    Claimant \ntestified that the more hip pain she has, the harder it is to control her bladder.  She testified \nthat she has bladder leakage and sometimes feels as if she needs to go to the bathroom \nwhen  she  doesn’t.    Dr.  Dougherty  confirmed  that  claimant  occasionally  struggles  with \ncontrol of her bladder. \n Based upon the foregoing evidence, I find that claimant is entitled to an impairment \nrating in an amount equal to 5% to the body as a whole for her bladder dysfunction.   \n As previously noted, it was determined that claimant had suffered a 60% loss in \nwage earning capacity following the second hearing in this claim.  After my review of the \nrelevant wage loss factors, I find that due to her increased impairment ratings as well as \nother relevant wage loss factors, that claimant is now permanently totally disabled as a \nresult of her compensable injury.  In considering claims for permanent disability in excess \nof  the  percentage  of  permanent  physical  impairment,  the  Commission  may  take  into \naccount  in  addition  to  the  percentage  of  permanent  physical  impairment  other  factors \nsuch  as  the  employee’s  age,  education,  work  experience,  and  all  other  matters \nreasonably expected to effect her future earning capacity.  A.C.A. §11-9-522(b)(1).  Here, \nclaimant is 51 years old.  She has an associate’s degree in nursing and has a varied work \nhistory.    From  2000  through  2003  claimant  worked  for  PeoplePlus  as  the  regional \ncoordinator   for   the   State   of   Alabama.      She   testified   that   PeoplePlus   staffed \ndemonstrations at Walmarts and merchandising events.  Thereafter, from 2003 to 2006 \nthe claimant worked as a senior account representative for J.B. Hunt.  Claimant previously \n\nMiller – G600552 \n \n11 \n \ntestified  that  this  job  required  her  to  be  on  the  phone,  sitting  at  a  desk  and  using  a \ncomputer.  Subsequent to J.B. Hunt the claimant sold toner and ink with her sister.  She \ntestified that she primarily worked on the phone from her home and used a computer in \nthe performance of that job which she did for almost three years.  Claimant was employed \nby Motorola from 2009 through 2013.  Claimant testified that she worked in the receiving \ndepartment which would receive approximately 5000 units a week and was in charge of \ngetting those units checked in and making sure proper paperwork was performed for each \nunit  and  getting  the  unit  to  a  technician  for  repair.    These  units  were  devices  such  as \nhandheld devices with scanners used at Walmart. \n After Motorola,  the  claimant  worked  as  a parttime  mechanic  with  her  husband \nplacing  skirts  underneath  trailers  to  make  them  more  aerodynamic.    She  also  testified \nthat she could change a truck tire, change a trailer tire, and perform oil changes.  It was \nduring  this  time  that claimant obtained  her  nursing  degree  and  began  working  for \nrespondent as a floor nurse. \n Much of this history regarding claimant’s prior work history was given by claimant \nat the January 13, 2021 hearing and confirmed at the most recent hearing. \n At  the  time  of  the  January  13,  2021  hearing  claimant  had  also  undergone  a \nfunctional capacities evaluation which revealed full levels of physical effort on claimant’s \nbehalf.  That evaluation determined that claimant was capable of performing work in the \nsedentary  classification  of  work.    All  of  these  factors  were  considered  in  assigning \nclaimant  a  loss  in  wage  earning  capacity in an  amount  equal  to  60%  to the  body  as  a \nwhole. \n Since that time, claimant has continued to have increased pain in her left hip.  This \n\nMiller – G600552 \n \n12 \n \nhas  resulted  in  additional  medical treatment from  Dr.  Dougherty  and  continued  pain \nmedication from Dr. Daut. \n At  his  deposition,  Dr.  Dougherty  indicated  that  claimant  should  not  perform  any \nheavy lifting and no pushing or pulling over 10 pounds.  He indicated that claimant would \nonly  be  capable  of  performing  seated  work.    He  further  noted  that  claimant’s  main \nlimitation was chronic pain in her hip and that increased activity caused additional pain.  \nHe testified that claimant could not sit or stand for prolonged periods of time and that if \nshe were to engage in some work activities she would have to be in a position that would \nallow her  to  alternative  between  sitting  and  standing  at  will.    Specifically,  in his  report \ndated July 12, 2023, Dr. Dougherty stated: \n   \n  Is in fact at MMI.  She has significant limitations in \n  lifting, ambulation and she is  unable to perform any \n  of her prior work capacity and I feel she is unable to \n  work gainfully due to these limitations.  (Emphasis \n  added.) \n \n \n Claimant testified that she currently suffers from burning pain on the top of her left \nthigh; pain in her left hip; groin pain; pelvic pain; pain in her low back; and pain in her right \nbuttock  that  radiates  into  her  right  foot.    In  addition,  with  respect  to  the  pelvic  floor \ndysfunction,  she  testified  that  she  frequently  has  bladder  leakage  and  that  she  has \nfeelings as if she needs to go to the bathroom but is unable to do so.  Because of this \nleakage, claimant is required to wear a diaper or pad on a daily basis.   \n In addition, as a result of the pain and her bladder dysfunction she testified that \nshe  has  difficulty  falling  asleep  and  staying  asleep  due  to  not  being  able  to  get \ncomfortable.  She also testified that she only sleeps two or three hours before waking due \n\nMiller – G600552 \n \n13 \n \nto pain or feeling as if she has to go to the bathroom. \n Finally, as previously noted, claimant has a 14% impairment rating to her low back \nand SI joints as a result of her compensable injury in addition to a 30% impairment rating \nto the body as a whole for her left hip injury and a 5% impairment rating to the body as a \nwhole for her pelvic floor dysfunction. \n After consideration of all of the relevant wage loss factors in this case, I find that \nclaimant has met her burden of proving by a preponderance of the evidence that she is \npermanently totally disabled.  Although the claimant might be able to perform some limited \nsedentary work, I find that claimant has proven that she is unable to earn any meaningful \nwages in the same employment she previously performed or any other employment. \n Finally,  with  respect  to  this  issue,  I  note  that  even  if  claimant  did  not  have  a \npermanent physical  impairment  attributable  to  her  pelvic  floor  dysfunction,  claimant \nnevertheless does suffer from the symptoms of pelvic floor dysfunction and based on the \ntotality  of  the  relevant  wage  loss  factors,  I  would  nonetheless  find  that  claimant  is \npermanently totally disabled even if she did not have a 5% impairment rating to the body \nas a whole as a result of the pelvic floor dysfunction. \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe has suffered a permanent physical impairment in an amount equal to 30% to the body \nas a whole for her left hip and 5% to the body as a whole for her pelvic floor dysfunction.  \nClaimant has also proven by a preponderance of the evidence that she is permanently \ntotally disabled as a result of her compensable injury. \n\nMiller – G600552 \n \n14 \n \n Respondent #1 has controverted claimant’s entitlement to all benefits in excess of \nthose  previously  accepted  or  paid.    Respondent  #2  has  not  controverted  claimant’s \nentitlement to compensation benefits and is therefore not liable for payment of an attorney \nfee.  However, respondent #2 is to withhold claimant’s portion of the attorney fee from \nbenefits it will pay claimant at the appropriate time in the future. \n Respondent #1  is  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $606.00. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n     ______________________________________ \n  GREGORY K. STEWART \n                                                             ADMINISTRATIVE LAW JUDGE","textLength":24532,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G600552 TAMMY L. MILLER, Employee CLAIMANT MHM SUPPORT SERVICES, Employer RESPONDENT #1 MERCY HEALTH, Carrier/TPA RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED MAY 29, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GR...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["hip","knee","lumbar","back"],"fetchedAt":"2026-05-19T22:54:52.003Z"},{"id":"full_commission-H000250-2024-05-28","awccNumber":"H000250","decisionDate":"2024-05-28","decisionYear":2024,"opinionType":"full_commission","claimantName":"Darryl Payne","employerName":"Phillips Community College","title":"PAYNE VS. PHILLIPS COMMUNITY COLLEGE AWCC# H000250 MAY 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Payne_Darryl_H000250_20240528.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Payne_Darryl_H000250_20240528.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H000250  \n \nDARRYL G. PAYNE, \nEMPLOYEE \n \nCLAIMANT \nPHILLIPS COMMUNITY COLLEGE,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 28, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed in part, affirmed in part. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nNovember 14, 2023.  The administrative law judge found that the claimant \nfailed to prove he was entitled to additional medical treatment.  After \nreviewing the entire record de novo, the Full Commission finds that \nadditional medical treatment to be provided to the claimant by Dr. Busby is \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).       \nI.  HISTORY \n\nPAYNE - H000250  2\n  \n \n \n The testimony of Darryl Payne, now age 55, indicated that he \nbecame employed with the respondents, Phillips Community College, in \nabout January 2019.  Mr. Payne testified that he had been employed as a \ncustodian for the respondents.  The parties stipulated that the employee-\nemployer relationship existed on January 7, 2020.  The claimant testified on \ndirect examination: \n  Q.  You got hurt on January the 7\nth\n of 2020? \n  A.  Yes.   \n  Q.  Tell the judge what happened.   \nA.  I was asked to get rid of some computer monitors that was \nout in the hallway.   \n  Q.  These were in boxes, right? \nA.  No, I was putting them in the boxes....They was pretty \nmuch in the way of the doorway of the students going in, so it \nwas probably maybe a hundred monitors....I came down the \nsteps with the box in front of me and that’s when the accident \nhappened.... \nQ.  You fell? \nA.  Yes.   \nQ.  And you injured –  \nA.  My left ribs, quads, tender loin, patella rupture or \nsomething like that.   \n \n The parties stipulated that the claimant “sustained a compensable \nwork-related injury to his left leg” on January 7, 2020.  According to the \nrecord, an x-ray of the claimant’s left knee was taken on January 7, 2020: \n  INDICATION:  Left knee pain with Trauma/injury.... \nFINDINGS:  No acute fracture or dislocation is appreciated.  \nNo significant suprapatellar bursal effusion is identified.  Soft \ntissue irregularity along the medial aspect of the anterior lower \nleg noted.   \nIMPRESSION:  No acute fracture or dislocation is \nappreciated.  No significant suprapatellar bursal effusion is \n\nPAYNE - H000250  3\n  \n \n \nidentified.  Soft tissue irregularity along the medial aspect of \nthe anterior lower leg noted.   \n \n The claimant’s testimony indicated that he underwent surgery by Dr. \nPhillip A. Smith on February 13, 2020.  An MR of the claimant’s lower \nextremity was taken on July 21, 2020 with the impression, “Prior surgical \nrepair of the quadriceps tendon which appears intact.  Focal area of \nchondromalacia involving the medial facet of the patella.”  Dr. Smith \nplanned on or about November 10, 2020, “He has met MMI.  He can return \nto work based on the medium work classifications.  We are going to get him \na knee brace today.  He will follow-up as needed.  I told him he needed to \ncontinue to focus on quad strengthening.  He also needs to focus on low \nimpact exercise and weight loss.” \n Dr. Smith reported on November 29, 2020: \nDarryl Payne underwent a left quad tendon repair on \n2/13/2020 for a work related injury.  He continued to complain \nof pain and was slow to progress with physical therapy.  \nSubsequent MRI and ultrasound showed no evidence of \nretear.  He underwent an FCE which placed him on \npermanent restrictions.  Based on the evaluation of \npermanent impairment, 4\nth\n Edition, he sustained a 5% whole \nperson or a 12% lower impairment rating based on grade 4 \nmuscle weakness to the left knee (Table 38 and 39 page 77).  \nPlease call with any questions or concerns.   \n \n The parties stipulated that “in November 2020, Claimant was \nassigned a twelve percent (12%) impairment rating to the left leg, which \nwas accepted and is currently being paid by Respondents.” \n\nPAYNE - H000250  4\n  \n \n \n Dr. Smith performed a second procedure on February 24, 2021:  “1.  \nOpen exploration and evaluation of left quad tendon.  2.  Repair of \ndiagnostic tenotomy quad tendon.”  The pre- and post-operative diagnosis \nwas “1.  Left knee pain following quad tendon repair.”       \n The parties stipulated that the claimant “reached MMI on or about \nJuly 13, 2021.” \n The claimant participated in a Functional Capacity Evaluation on \nAugust 13, 2021:  “The results of this evaluation indicate that a reliable \neffort was put forth, with 52 of 55 consistency measures within expected \nlimits....Mr. Payne completed functional testing on this date with reliable \nresults.  Overall, Mr. Payne demonstrated the ability to perform work in the \nMEDIUM classification of work[.]”   \n Dr. Smith reported on September 5, 2021: \nDarryl Payne sustained a left quad tendon rupture in [early] \nJanuary of 2020.  He was seen in clinic on 1/28/2021 \napproximately 3 weeks after his injury and determined to have \na left quad tendon rupture.  He underwent repair on \n2/13/2020.  He continued to have pain over the following year \ndespite extensive physical therapy.  He underwent exploration \nof the tendon on 2/24/2021 which showed complete healing.  \nHe was placed back in therapy but continue (sic) to complain \nof pain and weakness.  He reached MMI on 7/13/2021.  He \nwas sent for an FCE which was reliable and placed him in the \nmedium work classification.  Based on the guides to the \nevaluation of permanent impairment, 4\nth\n edition, he sustained \na 20% whole person impairment due to his routine use of a \ncane for ambulation (p. 76, table 36).  Please call with any \nquestions or concerns.   \n \n\nPAYNE - H000250  5\n  \n \n \n The parties stipulated that “in September 2021, Claimant was \nassigned a twenty percent (20%) whole body impairment rating, which was \nnot paid by Respondents.” \n Dr. Smith reported on October 15, 2021: \nDarryl Payne underwent a left quadriceps tendon repair on \nFebruary 13, 2020.  He had difficulty following surgery and \nwas slow to recover.  He underwent an exploration of his \nquadriceps tendon on February 24, 2021 which showed \nhealing of the tendon.  He reached MMI on July 13, 2021.  He \nunderwent a functional capacity exam which placed him at the \nmedium work classification as defined by the US Department \nof Labor.  Based on his range of motion he will have a 4% \nwhole person impairment or a 10% lower extremity \nimpairment (table 41, page 78).  Please call with any \nquestions or concerns. \n \n The parties stipulated that “in October 2021, Claimant was assigned \nan additional ten percent (10%) to the left lower extremity, which is also \ncurrently being paid by Respondents.” \n The claimant treated at Helena Regional Medical Center on October \n28, 2021:   \n52-year-old male with complaint of standing outside his home \nat which time his left leg gave out.  Patient fell backwards \nhitting the back of his head on concrete.  Patient states he \nhad momentary loss of consciousness.  Now with complaint of \nhaving a severe diffuse throbbing headache.  Patient also with \ncomplaint of pain in his left ankle, left hip, and lower left back.  \nPatient states he has had recent tendon surgery on his left \nleg....There is no tenderness or swelling of the left knee.... \n \n\nPAYNE - H000250  6\n  \n \n \n The diagnosis on October 28, 2021 was “Fall on same level, \nunspecified; Laceration without foreign body of scalp; Acute post-traumatic \nheadache; Sprain of ankle; Contusion of left hip.”   \n A pre-hearing order was filed on January 26, 2022.  The claimant \ncontended, “(a)  That he is permanently and totally disabled as a result of \nhis work injuries; (b)  That he is entitled to additional PPD based on 20% \nwhole body impairment; (c)  That the benefits set forth above have been \ncontroverted and thus undersigned counsel is entitled to maximum statutory \nattorney’s fees.  All other issues are reserved.”   \n The respondents contended, “Respondents contend that the \nclaimant has received all reasonable and necessary medical treatment for \ncompensable left knee injury.  After the January 7, 2020 incident the \nclaimant came under the care of Dr. Philip A. Smith.  The claimant \nunderwent a left quadriceps tendon repair on February 13, 2020.  He \nunderwent an exploration of his quadriceps tendon on February 24, 2021 \nand was found to be at MMI on July 13, 2021.  The claimant was assigned \nimpairment ratings of 12% to the lower extremity on 11/29/2020, and an \nadditional 10% to the lower extremity on 10/15/2021.  The claimant is \ncurrently receiving permanent partial disability benefits in payment of the \nassigned impairment ratings.”   \n\nPAYNE - H000250  7\n  \n \n \n The respondents contended, “The claimant sustained a \ncompensable injury to his left lower extremity.  As the claimant contends he \nsustained injuries to his lower extremities, the limitations expressed in Ark. \nCode Ann. §11-9-521(g) are applicable.  The Respondents contend that the \nclaimant is not permanently and totally disabled.  The claimant underwent a \nfunctional capacity examination which placed him at the MEDIUM work \nclassification as defined by the U.S. Department of Labor.  None of the \nclaimant’s physicians have indicated that the claimant is permanently and \ntotally disabled.  The claimant has also been evaluated for vocational \nrehabilitation possibilities by Heather Taylor, MRC, CRC.  The Respondents \ncontend that the claimant is not permanently and totally disabled and that \nhe is receiving and has received all appropriate indemnity benefits relative \nto his compensable scheduled lower extremity injury.”   \n The parties agreed to litigate the following issues: \n  1.  Permanent total disability, or in the alternative, wage loss.   \n2.  PPD based on twenty percent (20%) whole body \nimpairment. \n  3.  Attorney’s fees. \n  4.  All other issues are reserved. \n \n A hearing was held on March 30, 2022.  The claimant testified on \ndirect examination: \nQ.  You told me before the hearing that you wanted the judge \nto see your leg.  Do you want to do that? \nA.  Yes, please....I got on ice, so I got to pull this off.  Okay.  \n(Witness pulling up pants leg to show his knee).  This is where \n\nPAYNE - H000250  8\n  \n \n \nI’m having my problems at...it’s something going on right \nhere.  (Indicating left knee)....And they had stated that my \npatella was something defect (sic) in my records, and I asked \nthe doctor about it and he – that’s when the second surgery \nwas advised to me, but on this leg, you can see the \ndifference.  (Pulled up pants leg to compare both knees).... \nQ.  What’s your physical condition now?  You showed the \njudge your leg, other than the appearance of your leg and the \npain that you’ve described, what’s your physical condition like \nnow? \nA.  Just swelling, throbbing, weakness.  My equilibrium is off, \nbalance.  It’s just my leg is giving me problems.   \n \n An administrative law judge filed an opinion on June 22, 2022.  The \nadministrative law judge found, among other things, that the claimant “failed \nto prove by a preponderance of the evidence that he has been rendered \npermanently and totally disabled as a result of his compensable left lower \nextremity injury.  Alternatively, Claimant has failed to prove that he is \nentitled to wage loss for his scheduled injury to the left lower extremity.”  \nThe administrative law judge found that the claimant “failed to prove by a \npreponderance of the evidence that he is entitled to a twenty percent (20%) \npermanent impairment rating to the body as a whole.”   \n There was no appeal of the administrative law judge’s opinion filed \nJune 22, 2022, and the parties have stipulated, “The previous decision in \nthis matter is binding on this proceeding under the Law of the Case \nDoctrine.”   \n Dr. Charles E. Pearce reported on December 20, 2022: \n\nPAYNE - H000250  9\n  \n \n \nThe patient is a 53-year-old former employee of Phillips \nCounty Community College as a janitor and maintenance \nperson who injured his left knee when he fell down about 7-8 \nsteps while [carrying] computers.  He apparently sustained a \ndirect blow.  He was evaluated locally and subsequently had \nMRI scan of his left knee on January 15, 2020.  By report this \nshowed soft tissue edema in the suprapatellar bursa and \nsuspected partial tear of his quadriceps tendon.  He was then \nseen by Dr. Smith at Ortho Arkansas and had open repair of \nhis quadriceps tendon on February 13, 2020.  The patient had \na relatively uneventful postoperative course initially but was \nunable to return to normal activities because of ongoing pain \nand weakness about his knee leading to a follow-up MRI scan \non July 21, 2020 showing the repaired tendon to be intact.  \nThere was chondromalacia of the patella noted.  Despite time \nand modification activities the patient had continued pain \nleading to a 2\nnd\n surgery on February 24, 2021 by Dr. Smith \nwhich was opened (sic) exploration of the quadriceps tendon \nwhich appeared to be intact.  The most recent MRI scan was \non October 18, 2022 and is here for my review.  There were \nreports of subtle meniscal tears.  However I am not sure that \nthese would amount to any type of need for intervention and I \nam doubtful they are causing his current symptoms.  He was \nfound to have moderate chondromalacia of his patella \nespecially the medial facet.  He was then seen by Dr. Busby \nfor a 2\nnd\n opinion on November 18, 2022 and she opined that a \nknee arthroscopy with chondroplasty and meniscectomy was \nindicated.  She also stated that his major issue is quadriceps \nweakness that was relatively significant.  I agree with that \nstatement.  Currently he is using a cane in his right hand [to] \nambulate he has not been able to return to any type of gainful \nemployment since his injury and reports multiple falls.  This is \nbecause of leg weakness and giving way.  He had been \nemployed at this job for about a year before his injury.  He \ndoes not have a history of prior knee problems.  The patient \ntells me that he has had an FCE performed and in fact this \nhad been ordered.  I do not have those results.  I would like to \nlook at those before I make final recommendations for him.  \nHe does take ibuprofen for pain.  He recently has been given \nhydrocodone as well.... \nleft KNEE:  There is a well-healed midline incision.  The \npatellar and quadriceps tendon by palpation are intact.  He \n\nPAYNE - H000250  10\n  \n \n \nhas the ability to initiate isometric quads but cannot maintain a \nstraight leg raise or against resistance.  He complains of pain \nand crepitation about the knee and he in fact does have \nmoderate patellofemoral crepitation through range of motion.  \nHis motion is 0 to about 100 degrees....There is no collateral \nligament or AP instability of the knee.  Of significance \nmeasuring his thigh circumference 10 centimeters proximal to \nthe superior patellar pole he is 2 centimeters smaller on the \nleft compared to the right.   \nIMAGING:  X-rays ordered and interpreted by me he has \ndisuse atrophy of the patella.  The patellofemoral joints are \nnot well visualized because the patient is unable to flex to the \nappropriate level for those views.   \nIMPRESSION:  Post open left knee quadriceps tendon repair \nwith marked quadriceps weakness.  He has underlying \npatellofemoral chondromalacia most likely as well.  Doubt \nmeniscal pathology as etiology of pain.   \nPLAN:  1.  The patient is not at maximal medical improvement \npending my review of FCE that was completed.  Patient says \nthat he did that test.  We will try to get a copy of the results. \n2.  At most he can do a sitting job only. \n3.  He has previously been given an impairment rating based \non weakness of the leg which appears to be appropriate.   \n4.  There are no other diagnostic tests and/or surgery that I \ncan see that are indicated at this point. \n5.  Once I receive the FCE will make further recommendation \nregarding need for further intervention and care.  These \nstatements are made within a degree of medical certainty. \nThere is an addendum being dictated on December 30, 2022:  \nI have received and reviewed the functional capacity \nevaluations completed by this patient on August 13, 2021 and \nNovember 3, 2021.  The patient gave a valid effort with both \ntests and for both tests he was placed in the medium category \nof work as outlined by the department of labor.  This allows \noccasional lifting from 21-50 lbs, frequent lifting 11-20 lbs and \nconstant lifting 1-10 lbs.  These are his restrictions.  He has \npreviously been given impairment ratings and no additional \nimpairment is indicated.  There is no indication for further \ndiagnostic or treatment modalities for him.  His main deficit is \nrelated to decreased strength in the leg which is fully under \nhis own control in my opinion.  Arthroscopy previously \ndiscussed by another physician would be of little benefit for \n\nPAYNE - H000250  11\n  \n \n \nhim.  These statements are made within a degree of medical \ncertainty.   \n \n Rhonda Murphy, Assistant Claims Determination Manager, Arkansas \nInsurance Department, Public Employee Claims Division, corresponded \nwith Fenter Physical Therapy Center on January 18, 2023:  “I am \nauthorizing the following treatment:  X   Authorizing (3x4 weeks) of physical \ntherapy visits for (Left Quad Strengthening).”   \nA pre-hearing order was filed on May 25, 2023.  According to a \nquestionnaire filed by the claimant on March 30, 2023, the claimant \nappeared to contend that he was entitled to “Medical attention and if I get a \njob or compensation.”   \nThe respondents contended, “Respondents contend that the \nclaimant has received all reasonable and necessary medical treatment for \nhis compensable left lower extremity injury.  After the January 7, 2020 \nincident the claimant came under the care of Dr. Philip A. Smith.  The \nclaimant underwent a left quadriceps tendon repair on February 13, 2020.  \nHe underwent an exploration of his quadriceps tendon on February 24, \n2021 and was found to be at MMI on July 13, 2021.  The claimant was \nassigned impairment ratings of 12% to the lower extremity on 11/29/2020, \nand an additional 10% to the lower extremity on 10/15/2021.  The \nrespondents accepted and have paid PPD benefits relative to the assigned \nimpairment ratings.  A hearing was held in this claim on March 30, 2022 \n\nPAYNE - H000250  12\n  \n \n \nand an Opinion issued on June 22, 2022 by Administrative Law Judge Katie \nAnderson.  After a review of the evidence ALJ Anderson determined that \nthe claimant was not permanently and totally disabled, he was not entitled \nto any wage-loss disability, and he was not entitled to PPD benefits for a \n20% whole body impairment rating.  The issues and findings from that \nhearing are now res judicata and the law of the case.” \nThe respondents contended, “The claimant was granted a Change of \nPhysician to Dr. D’Orsay Bryant on July 18, 2022.  The respondents have \npaid for an evaluation of the claimant by Dr. Bryant.  The claimant has \nrecently undergone physical therapy treatment at the respondents’ \nexpense.  The Respondents contend that the claimant is not permanently \nand totally disabled and that he is receiving all appropriate indemnity \nbenefits relative to his compensable scheduled lower extremity injury.”       \nAccording to the pre-hearing order, the parties agreed to litigate the \nfollowing issues: \n1.  Whether Claimant is entitled to additional treatment of his \nstipulated compensable left lower extremity injury. \n2.  Whether Claimant is entitled to temporary total disability \nbenefits.  All other issues have been reserved.   \n \n The respondents’ attorney examined the pro se claimant at a \ndeposition taken June 20, 2023: \nQ.  I’m looking at a report, Darryl, from December of last year \nwhere you have been to see a Dr. Charles Pearce at UAMS in \nLittle Rock.  Is that right? \n\nPAYNE - H000250  13\n  \n \n \nA.  Yes, sir.... \nQ.  How did that appointment with Dr. Pearce go?  Do you \nremember? \nA.  I guess fine.  I mean, he checked me out.... \nQ.  And Dr. Pearce, at least in December of last year, I think \nhe says here – and I’ll just ask you if you remember this.  He \nsaid, “There are no other diagnostic tests and/or surgery that I \ncan see that are indicated at this point.”  Do you remember \nDr. Pearce telling you that he didn’t think you needed any \nsurgery? \nA.  Yes. \nQ.  Okay.  Is that the only time you’ve seen Dr. Pearce? \nA.  Yes.  And it’s workers’ compensation’s doctor.   \nQ.  Okay.  And so after you saw him – and that was in \nDecember of last year.  So after you saw Dr. Pearce back \nthen in December of last year, Darryl, did you see any other \northopedic doctors? \nA.  Yes. \nQ.  Okay.  Who did you see after Dr. Pearce? \nA.  Susan Busby before Dr. Pearce.   \nQ.  Okay.  Dr. Susan Busby? \nA.  Yes.  She’s in Forrest City, Arkansas. \nQ.  Okay.  And how was it that you ended up going to see Dr. \nBusby? \nA.  From my PCP.   \nQ.  Okay.  And I don’t know if I have any reports from Dr. \nBusby, but can you let me know what did she tell you and \nwhat did she suggest for you?  Do you remember? \nA.  Knee scope. \nQ.  Like, a laparoscopic knee surgery? \nA.  Yes, sir.   \nQ.  Okay.  And what – is that something that – did you talk to \nthe workers’ compensation people about that? \nA.  Yes.   \nQ.  And what did they tell you about the possibility of a knee \nsurgery? \nA.  Well, I contacted Rhonda Murphy, and she said that it \ndoesn’t – my meniscus tears and whatnot don’t fall under \nworkers’ compensation, only my quad.   \nQ.  Okay.  And I guess you’ve not had any kind of knee \nsurgery up until now.  Is that correct? \nA.  No.... \n\nPAYNE - H000250  14\n  \n \n \nQ.  And is it your thinking that you would like to have workers’ \ncompensation pay for that knee surgery? \nA.  Yes. \nQ.  Okay.  So besides Dr. Busby, and we talked about Dr. \nPearce, I know at one point – this was in August of last year.  \nYou saw a Dr. D’Orsay Bryant down in El Dorado.  Is that \ncorrect? \nA.  Yes.  COP, that’s my change of physician.   \nQ.  Right.  And so besides Dr. Pearce, Dr. Bryant, and Dr. \nBusby, have there been any other, let’s say, orthopedic \ndoctors that have seen you for your leg or knee or any of that \nproblem? \nA.  No.... \nQ.  Now, as we’re talking here today, you’ve already \nmentioned that you’re interested in the prospect of some kind \nof a knee surgery.  Is that correct? \nA.  Yes.   \nQ.  So help me understand how that came about, where it \nlooks like the injury was initially to the quadriceps tendon.  \nCorrect? \nA.  Correct.   \nQ.  And now, three-and-a-half years later, we’re talking about \ntrying to get knee surgery on your knee.  Kind of tell me how \nthat injury from the day you got hurt until now, how has that \nprogressed or changed or somehow or another affected your \nknee? \nA.  Well, first of all, if you look at the – it was stated when I \nfirst initially fell, it was a contusion to my hip and my knee.... \nQ.  And so help me – I mean, if I went from there, how does \nthat lead us to today, where you’re asking for surgery on that \nknee? \nA.  Well, I’ve had several falls and meniscus tears.  It’s in \nSusan Busby’s report, and my MRI states it.... \nQ.  What kind of issues, if any, are you having with your knee \nthese days? \nA.  Buckling.... \nQ.  And at the hearing we’ve got scheduled in your case \ncoming up next month, I guess, two issues.  One’s going to be \nwhether or not you’re entitled to additional medical treatment \nfor your left leg injury.  And so you’ve told me this morning \nthat Dr. Busby, I think, has recommended a knee surgery for \nyou.  Is that right? \n\nPAYNE - H000250  15\n  \n \n \nA.  Yes.   \nQ.  Is that the medical treatment that you’re seeking at this \npoint? \nA.  Chronic joint pain in my patella, but she spoke of a few \nthings.   \nQ.  Okay.  Tell me what she spoke of, just so I know. \nA.  Meniscus tears from my MRI, patella – she stated that my \npatella joint wasn’t observed at the time of my surgery.  It’s \nsomething with my patella once again.   \nQ.  Okay.  And so with the meniscus tear issue and then this \npatella issue, is it your understanding that Dr. Busby wants to \ndo – or some doctor would want to do some kind of surgery to \nfix that? \nA.  Yes, sir.... \nQ.  When was the last time you were at Fena Physical \nTherapy for physical therapy?  Do you happen to know? \nA.  Months ago.   \nQ.  Okay.  And how did it come about that physical therapy \nstopped?  Did you decide not to go back? \nA.  Workers’ compensation only paid for six weeks.   \nQ.  Okay.  Did the six weeks that you went to physical therapy \nseem to help your condition? \nA.  Not at all.... \nQ.  I guess I want to make sure, too, that I understand all of \nthis right, Darryl.  Because when we started a little while ago, I \nasked you about this report from Dr. Pearce from December \nof last year, about six months ago, where he says in this \nreport, “There are no other diagnostic tests or surgery that I \ncan see that are indicated at this point.\"  That's what Dr. \nPearce said six months ago.  So is that somehow different \nnow? \nA.  Before Dr. Pearce, once again, it was Ms. Busby.  So I \nwent to Ms. Busby first, then workers’ compensation sent me \nto an independent medical examiner, Dr. Pearce, when I \nstarted calling Rhonda on a daily basis.   \nQ.  Okay. \nA.  She sent me to the IME doctor, Dr. Pearce.   \nQ.  All right. \nA.  Once Dr. Pearce got a note of Ms. Busby’s information – \nfrom Dr. Pearce, I went back to Ms. Busby.  That’s the last \nfollow up.   \nQ.  Okay. \n\nPAYNE - H000250  16\n  \n \n \nA.  Do you mind – can I show you? \nQ.  Show me what? \nA.  Ms. Busby’s report. \nQ.  Sure, please....We took a quick break there, and you \nshowed me what looks to be a portion of a report from Dr. \nBusby, that looks to be dated November 9\nth\n, 2022.  Correct? \nA.  I have the whole report if you want it.   \nQ.  Yeah.  I guess, for purposes of today, we can agree you \nsaw Dr. Busby on November the 9\nth\n? \nA.  Yes, sir. \nQ.  Then workers’ compensation ended up getting you to Dr. \nPearce, who then saw you on December 20\nth\n, 2022, about six \nweeks later.  Correct? \nA.  Correct.   \nQ.  Okay.  So Darryl, let me ask you this.  We’re here today \ntalking about surgery for your knee, which you’ve – as I \nunderstand it, you would like to have that performed.   \nA.  Please.... \nQ.  So that’s one of the issues we’ll talk about, I guess, next \nmonth at the hearing is additional medical treatment for you. \nA.  Yes.... \nQ.  Do you know if Medicaid would pay for a knee surgery for \nyou? \nA.  Well, I let my PCP know, and she’s saying that it’s a \nworkers’ compensation case.  So everywhere I go, I get \ndenied, even when I try to go to any referral.  Nobody wanted \nto take on my workers’ compensation, so that was my whole \nproblem when I addressed Philip Hood.  I contacted him and \ncomplained that I could not get any type of treatment because \nI was on workers’ compensation.  So everybody ignores my \nknee.  But Medicaid pays for everything else. \n \n A hearing was held on August 17, 2023.  At that time, the following \ncolloquy took place: \nMR. MONTGOMERY:  I agree that the employer-employee-\ncarrier relationship existed on or about January 7, 2020, when \nthe claimant sustained a compensation (sic) work-related \ninjury to his left leg.  I have written, and I believe I told Judge \nFine on the phone, and I think we should add a comma and \n\nPAYNE - H000250  17\n  \n \n \nadd the words “specifically a left quadriceps tendon injury,” \nokay?  So that would be one addition I would ask for.... \nJUDGE HOWE:  So, Mr. Payne, do you understand and agree \nwith that? \nCLAIMANT:  That it’s a left quadriceps –  \nJUDGE HOWE:  Quadriceps injury, that that is the injury that \noccurred on that date? \nCLAIMANT:  Yes.   \nJUDGE HOWE:  Okay.  So we can stipulate to that.  The \nrecord will be reflective of that.   \n \n The pro se claimant attempted to introduce into the record the results \nof MRI testing ordered by his primary care physician.  The respondents \nobjected to introduction of the medical evidence, and the administrative law \njudge sustained the objection without allowing the claimant to proffer the \nevidence.     \nAn administrative law judge filed an opinion on November 17, 2023.  \nThe administrative law judge found that the claimant failed to prove he was \nentitled to additional medical treatment or additional indemnity benefits.  \nThe administrative law judge therefore denied and dismissed the claim.  \nThe claimant appeals to the Full Commission.       \nII.  ADJUDICATION \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \n\nPAYNE - H000250  18\n  \n \n \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2002).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).     \n An administrative law judge found in the present matter, “3.  The \nclaimant failed to establish by a preponderance of the evidence that he is \nentitled to additional medical treatment for his compensable injury.  Nor is \nhe entitled to any additional indemnity benefits related thereto.”  The Full \nCommission finds that the claimant proved additional medical treatment \nwas reasonably necessary in connection with the compensable injury \nsustained by the claimant. \n The respondents essentially argue in their brief to the Full \nCommission that the claimant did not sustain a compensable left knee \ninjury.  The Full Commission notes that, at the hearing held August 17, \n2023, the respondents entered a revised stipulation that the claimant \nsustained “specifically a left quadriceps injury.”  Although the pro se \nclaimant tacitly assented to this late change, the Full Commission finds that \nthe respondents’ revised stipulation is not supported by the prior agreed \nstipulations or the evidence of record.     \n\nPAYNE - H000250  19\n  \n \n \n The parties initially stipulated that the employment relationship \nexisted on January 7, 2020, at which time the claimant “sustained a \ncompensable work-related injury to his left leg [emphasis supplied].”  It was \nreported that the claimant was suffering from “left knee pain” following the \ncompensable injury, and “soft tissue irregularity” in the claimant’s left \nanterior lower leg was noted.  Dr. Smith reported in November 2020 that the \nclaimant had sustained 12% permanent anatomical impairment based in \npart on “muscle weakness to the left knee” following the compensable \ninjury.  The respondents accepted this assigned permanent impairment \nrating which involved the claimant’s left knee.  Dr. Smith performed a \nsecond surgical procedure in February 2021 based in part on “Left knee \npain following quad tendon repair.”   \n The claimant contended in a pre-hearing order filed January 26, \n2022 that he was entitled to permanent total disability benefits.  The \nrespondents contended at that time that the claimant had received \nreasonably necessary medical treatment provided in connection with the \nclaimant’s “compensable left knee injury [emphasis supplied].”   The \nrespondents also contended in the January 26, 2022 pre-hearing order that \nthe claimant “sustained a compensable injury to his left lower extremity.”  \nAn administrative law judge filed an opinion on June 22, 2022 and found, \namong other things, that the claimant did not prove he was permanently \n\nPAYNE - H000250  20\n  \n \n \ntotally disabled.  The parties at that time did not adjudicate the claimant’s \nentitlement to additional medical treatment, and the administrative law \njudge did not enter a finding with regard to additional medical treatment.   \n The Arkansas Workers’ Compensation Commission shall make such \ninvestigation or inquiry in a manner as will best ascertain the rights of the \nparties.  Ark. Code Ann. §11-9-705(a)(1)(Repl. 2012); Bronco Industrial \nServices, LLC v. Brooks, 2021 Ark. App. 279, 625 S.W.3d 753.  See also \nClark v. Peabody Testing Service, 265 Ark. 489, 579 S.W.2d 360 (1979).      \n The claimant in the present matter did not sustain only a “left \nquadriceps tendon” injury.  We reiterate the parties’ stipulation that the \nclaimant sustained a compensable injury “to his left leg” on January 7, \n2020.  The claimant was plainly treated for “left knee pain” following the \ncompensable injury, and there were objective findings of “soft tissue \nirregularity” in the claimant’s left leg.  After the second surgery on February \n24, 2021, Dr. Smith noted “Left knee pain following quad tendon repair.”  A \npre-hearing order was filed on January 26, 2022.  The respondents \ncontended that the claimant had received all reasonably necessary medical \ntreatment provided in connection with the “compensable left knee injury.”  \nThe respondents also contended that the claimant had sustained a \ncompensable injury “to his left lower extremity.”     \n\nPAYNE - H000250  21\n  \n \n \n A hearing was held before an administrative law judge on March 30, \n2022.  The claimant informed the administrative law judge that he was \nsuffering from problems in his left knee as a result of the stipulated \ncompensable injury to the claimant’s left lower extremity.  The \nadministrative law judge filed an opinion on June 22, 2022.  The \nadministrative law judge found, among other things, that the claimant “failed \nto prove by a preponderance of the evidence that he has been rendered \npermanently and totally disabled as a result of his compensable left lower \nextremity injury [emphasis supplied].”  The parties have stipulated that the \nadministrative law judge’s June 22, 2022 decision is “the law of the case.”  \nThe administrative law judge’s decision patently states that the claimant \ninjured his left lower extremity, not just the “quadriceps tendon.”  Neither the \nprior agreed stipulations nor the evidence of record supports the \nrespondents’ assertion on appeal that the claimant failed to prove he \nsustained a compensable left knee injury on January 7, 2020. \n It is the Commission’s duty to translate the evidence of record into \nfindings of fact.  Gencorp Polymer Prods. v. Landers, 36 Ark. App. 190, 820 \nS.W.2d 475 (1991).  It is also within the Commission’s province to weigh all \nof the medical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present \nmatter, the evidence demonstrates that the claimant sustained a \n\nPAYNE - H000250  22\n  \n \n \ncompensable injury to his left lower extremity, including his left knee, on \nJanuary 7, 2020.  The claimant has undergone two surgeries but continues \nto suffer with chronic pain and testified that he has difficulty even \nstraightening his left leg.  The evidence of record corroborates the \nclaimant’s testimony that his left leg will occasionally “give out,” causing the \nclaimant to fall.  This corroborating evidence includes the report from \nHelena Regional Medical Center dated October 28, 2021.   \n The claimant proved by a preponderance of the evidence that he is \nentitled to additional medical treatment to be provided by Dr. Busby.  Based \non Dr. Pearce’s December 20, 2022 report, Dr. Busby has explicitly noted \nthat an October 18, 2022 report showed “meniscal tears” in the claimant’s \nleft knee.  Dr. Pearce’s physical examination showed that the circumference \nof the claimant’s left lower extremity is 2 centimeters smaller than the right \nlower extremity.  The Full Commission assigns minimal evidentiary weight \nto Dr. Pearce’s opinion, “There is no indication for further diagnostic or \ntreatment modalities for him.”  \n  After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved he was entitled to additional medical treatment to \nbe provided by Dr. Busby.  The claimant proved that said treatment was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  The parties stipulated that the claimant reached \n\nPAYNE - H000250  23\n  \n \n \nmaximum medical improvement on or about July 13, 2021.  The evidence \ntherefore demonstrates that the claimant reached the end of a healing \nperiod no later than July 13, 2021.  An employee who has suffered a \nscheduled injury, like the claimant, is to receive temporary total disability \nbenefits during his healing period or until he returns to work, whichever \noccurs first.  Ark. Code Ann. §11-9-521(a)(Repl. 2012); Wheeler Constr. \nCo. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001).  Based on the \ncurrent evidence of record, the claimant did not prove that he re-entered a \nhealing period at any time after July 13, 2021.  The claimant therefore did \nnot prove he was entitled to additional temporary total disability benefits.   \n IT IS SO ORDERED.    \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved by a preponderance of the evidence that he is entitled to \nadditional medical treatment. \n\nPAYNE - H000250  24\n  \n \n \nI. The claimant is not entitled to additional medical \ntreatment. \n \nArk. Code Ann. § 11-9-508(a) (Repl. 2012) requires an employer to \nprovide an employee with medical and surgical treatment \"as may be \nreasonably necessary in connection with the injury received by the \nemployee.\"  The claimant has the burden of proving by a preponderance of \nthe evidence that the additional treatment is reasonable and necessary. \nNichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of fact for \nthe Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 S.W.3d \n445 (2023).  In assessing whether a given medical procedure is reasonably \nnecessary for treatment of the compensable injury, the Commission \nanalyzes both the proposed procedure and the condition it sought \nto remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. 153, \n426 S.W.3d 539 (2013). \nIt is within the Commission's province to weigh all the medical \nevidence to determine what is most credible and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  However, the Commission has the authority to accept \nor reject medical opinions.  Williams v. Ark Dept. of Community Corrections, \n\nPAYNE - H000250  25\n  \n \n \n2016 Ark. App. 427, 502 S.W. 3d 530 (2016).  Furthermore, it is the \nCommission's duty to use its experience and expertise in translating the \ntestimony of medical experts into findings of fact and to draw inferences \nwhen testimony is open to more than a single interpretation.  Id. \nHere, the claimant suffered an admittedly compensable injury to his \nleft quadriceps on January 7, 2020.  Dr. Phillip A. Smith performed a left \nquadriceps tendon repair on February 13, 2020.  (Resp. Ex. 1, P. 8).  On \nFebruary 24, 2021, the claimant underwent exploration of the tendon, also \nperformed by Dr. Smith, which showed complete healing.  Id.  The claimant \nreached maximum medical improvement on July 13, 2021 and was sent for \na functional capacity evaluation (FCE) where he performed reliably.  Id. \nUltimately, he was assigned twenty percent (20%) whole person impairment \non September 5, 2021.  Id. \nIn June of 2022, an administrative law judge (ALJ) ruled that the \nclaimant was not permanently and totally disabled or entitled to wage-loss \ndisability benefits.  The claimant subsequently sought a one-time change of \nphysician and was evaluated by Dr. D’Orsay Bryant in El Dorado.  (Hrng. \nTr, Pp. 24-25).  He then treated with Dr. Charles E. Pearce, an orthopedic \nsurgeon, on December 20, 2022.  (Resp. Ex. 1, Pp. 15-17).  Dr. Pearce \nreviewed the claimant’s medical records and conducted a physical \nexamination of the claimant, opining that “[t]here are no other diagnostic \n\nPAYNE - H000250  26\n  \n \n \ntests and/or surgery that I can see that are indicated at this point.”  (Resp. \nEx. 1, P. 16).  Upon receiving and reviewing the claimant’s FCE, Dr. Pearce \nopined: \nHe has previously been given \nimpairment ratings and no \nadditional impairment is indicated. \nThere is no indication for further \ndiagnostic or treatment modalities \nfor him.  His main deficit is related \nto decreased strength in the leg \nwhich is fully under his own control \nin my opinion.  Arthroscopy \npreviously discussed by another \nphysician would be of little benefit \nfor him.  These statements are \nmade within a degree of medical \ncertainty.  Id. \n \nThe claimant has wholly failed to meet his burden of proving that he \nis entitled to any treatment of benefits beyond what has been paid.  Dr. \nPearce opined that the no further treatment would benefit the claimant and \nthat his sole remaining complaint – weakness – is subject to the claimant’s \nown control.  There is no documentary  evidence or testimony supporting \nthe claimant’s contention that he suffers from a condition that requires \ntreatment that is necessary, reasonable, or causally related to his \ncompensable injury. \nII. The agreed stipulation should remain in the record. \n\nPAYNE - H000250  27\n  \n \n \nAt the hearing, the respondent attorney sought to modify the parties’ \npre-hearing stipulations to state that the “claimant sustained a \ncompensation [sic] work-related injury to his left leg . . . ‘specifically a left \nquadriceps tendon injury.’” (Hrng. Tr., P. 10).  In granting this modification, \nthe ALJ had the following exchange with the claimant: \nJUDGE HOWE: So, Mr. Payne, do \nyou understand \nand agree with \nthat? \n \nCLAIMANT: That it’s a left \nquadriceps – \n \nJUDGE HOWE: Quadriceps injury, \nthat that is the \ninjury that \noccurred on that \ndate? \n \nCLAIMANT: Yes. \n \nJUDGE HOWE: Okay.  So we can \nstipulate to that. \nThe record will be \nreflective of that.  \nId. \n \nArkansas Code Annotated § 11-9-705(a)(1) provides that in \nconducting a hearing, \n\nPAYNE - H000250  28\n  \n \n \nthe Commission shall not be bound by \ntechnical or statutory rules of evidence or by \ntechnical or formal rules of procedure, except \nas provided by this chapter, but may make \nsuch investigation or inquiry, or conduct the \nhearing, in a manner as will best ascertain the \nrights of the parties. \n \nOur Court of Appeals has previously agreed with Commission rulings \non this matter.  See Jackson v. Circle T Express, 49 Ark. App. 94, 896 \nS.W.2d 602 (1995).  In Jackson, the employer initially accepted \ncompensability of a claim and later stipulated that the claim was \ncompensable at the prehearing conference.  Id.  This stipulation was \nmemorialized in a pre-hearing order.  Id.  At the hearing, the employer \nsought to withdraw its stipulation regarding compensability.  Id.  The \nCommission found that Circle T was not precluded from challenging the \nappellant's claim as a result of the stipulation or payment of compensation \nbased upon the appellant's failure to prove that he sustained a \ncompensable injury.  Id.  The Commission refused to enforce the stipulation \nbecause it found that such enforcement would be contrary to the basic \nnotions of justice and fair play.  Id.  It concluded that \"to find on one hand \nthat the facts fail to establish a cause of action and on the other to impose \nliability on one of the parties is not logically consistent or compatible with \nthe interests of justice and fair play.\"  Id. \n\nPAYNE - H000250  29\n  \n \n \nFurther, “[p]ro se claimants receive no special consideration of their \nargument and are held to the same standard as a licensed \nattorney.”  Boykin v. Crockett Adjustment Ins., 2013 Ark. App. 157 \n(2013).  “We will not develop an issue for a party at the appellate level.”  Id.   \n Although the Majority contends that the “respondents’ revised \nstipulation is not supported by the prior agreed stipulations or the evidence \nof the record,” and that the claimant only “tacitly” assented to the \nmodification, this is contrary to the facts and the notion of fair play.  (P. 18). \nThe claimant underwent imaging studies on his left knee on the date of the \ninjury which revealed “[n]o acute fracture or dislocation is appreciated.  No \nsignificant suprapatellar bursal effusion is identified.”  (Resp. Ex. 1, P. 1). \nThe records at hand do not reflect any further findings or treatment \nregarding the claimant’s left knee.  \nIt is our duty to ascertain the rights of the parties while ensuring that \nthe notions of justice and fair play are upheld.  The Majority sets aside a \nstipulation that is clearly and knowingly agreed to by the parties while \ndisregarding the evidence that the issue of the claimant’s left knee has not \nbeen litigated in the three years prior to this hearing.  This is unnecessarily \npunitive to the respondent carrier who, once this stipulation was entered \ninto the record, did not have the appropriate opportunity to defend against \nthis claim.  It goes beyond our duties to create and litigate an issue on \n\nPAYNE - H000250  30\n  \n \n \nbehalf of a pro-se claimant and is a violation of our well-settled rules, and \ntherefore this stipulation should remain in the record. \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":46316,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H000250 DARRYL G. PAYNE, EMPLOYEE CLAIMANT PHILLIPS COMMUNITY COLLEGE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 28, 2024","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["knee","fracture","back","ankle","hip","sprain"],"fetchedAt":"2026-05-19T22:29:45.538Z"},{"id":"alj-H306408-2024-05-28","awccNumber":"H306408","decisionDate":"2024-05-28","decisionYear":2024,"opinionType":"alj","claimantName":"Carolea Fletcher","employerName":"Team Staffing, Inc","title":"FLETCHER VS. TEAM STAFFING, INC. AWCC# H306408 MAY 28, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FLETCHER_CAROLEA_H306408_20240528.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FLETCHER_CAROLEA_H306408_20240528.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H306408 \n \nCAROLEA R. FLETCHER,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nTEAM STAFFING, INC., \nEMPLOYER                                                                                                         RESPONDENT \n \nAMFED NAT’L INS. CO./ \nASCOT WORKERS’ COMPENSATION GROUP \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED MAY 28, 2024 \n \nHearing conducted on Tuesday, May 28, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Carolea R. Fletcher, pro se, of Little Rock, Pulaski County, Arkansas, failed \nand/or refused to attend the hearing. \n \nThe respondents were represented by the Honorable R. Scott Zuerker, Ledbetter, Cogbill, Arnold \n& Harrison, LLP, Ft. Smith, Sebastian County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Tuesday, May 28, 2024, pursuant to the respondents’ motion to \ndismiss without prejudice pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 Lexis Replacement) \nand Commission Rule 099.13 (2024 Lexis Repl.). \n        The respondents filed a motion to dismiss without prejudice for lack of prosecution with the \nCommission  on  April  3,  2024.  The  claimant  had  been  represented  by  counsel;  however,  by \nCommission order filed December 19, 2023, the claimant’s counsel was allowed to withdraw as \nher  attorney  of  record.  Consequently,  pursuant  to  the  applicable  law the  Commission  mailed  a \ncopy of the respondents’ motion to dismiss, as well as notice of the subject hearing to the claimant \nat her last known address of record on file with the Commission. The claimant failed and/or refused \n\nCarolea R. Fletcher, AWCC No. H306408 \n2 \n \nto respond to the respondents’ motion to dismiss in any way, and she failed and/or refused to \nappear at the subject hearing.  \n          The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4), as well as our court of appeals’ ruling in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant does not \nwish to proceed with the prosecution of his claim at this time and, therefore, he voluntarily concurs \nwith the respondents’ motion to dismiss the claim at this time, so long as the dismissal is without \nprejudice to its refiling if and when the claim becomes ripe for hearing. \n        Therefore,  after a thorough consideration of  the facts, issues, the applicable law,  and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. The claimant failed and/or refused to respond in any way to the respondents’ motion to \ndismiss without prejudice filed April 3, 2024, and failed an/or refused to appear at the \nsubject hearing. Therefore, she hereby is deemed to have waived her right to a hearing on \nthe respondents’ motion to dismiss.  \n \n3. The respondents’ motion to dismiss without prejudice filed April 3, 2024, should be and \nhereby is GRANTED; and this claim is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed by Ark. Code  Ann. Section  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n\nCarolea R. Fletcher, AWCC No. H306408 \n3 \n \n        This Order shall not be construed to prohibit the claimant, her attorney, any attorney she may \nretain in the future, or anyone acting legally and on her behalf from refiling this claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5037,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306408 CAROLEA R. FLETCHER, EMPLOYEE CLAIMANT TEAM STAFFING, INC., EMPLOYER RESPONDENT AMFED NAT’L INS. CO./ ASCOT WORKERS’ COMPENSATION GROUP CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED MAY 28, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:54:45.609Z"},{"id":"alj-H306149-2024-05-28","awccNumber":"H306149","decisionDate":"2024-05-28","decisionYear":2024,"opinionType":"alj","claimantName":"Garrett Moore","employerName":"Hino Motor Mfg USA Inc","title":"MOORE VS. HINO MOTOR MFG USA INC. AWCC# H306149 MAY 28, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Moore_Garrett_H306149_20240528.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Moore_Garrett_H306149_20240528.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H306149 \n \nGARRETT MOORE, \nEMPLOYEE                                                                                                              CLAIMANT \n \nHINO MOTOR MFG USA INC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nFIRST LIBERTY INSURANCE CORP., \nCARRIER/TPA                                                                                                    RESPONDENT \n \n \nOPINION FILED MAY 28, 2024 \n \nHearing conducted on Wednesday, May 3,  2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant, Mr. Garrett R. Moore, pro se, of Paragould, Arkansas, did not appear in person at \nthe hearing.  \n \nThe Respondents were represented by the Honorable Jason M. Ryburn, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on May 3, 2024, in Forrest City, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe Claimant worked for the Respondent/Employer as a laborer. The Claimant injured his \nleg and knee on July 16, 2023. He reported this injury to his Respondent/Employer on September \n22,  2023. Admitted  into  evidence  was Respondent  Exhibit  1,  Form  AR-C and Respondents’ \nMotion to Dismiss, totaling two pages. Commission Exhibit 1, correspondence, and Certified U.S. \nMail return receipts, consisting of six pages. I have also blue-backed Form AR-1 and Form AR-2, \nas discussed infra. \n\nMOORE, AWCC No. H306149 \n \n2 \n \nThe record reflects on September 21, 2023, a Form AR-C was filed with the Commission \nthrough Claimant’s then-attorney, Mark Peoples. On September 28, 2023, a Form AR-1 was filed \nin this case, reflecting that Claimant purportedly sustained an injury to his leg and knee on July \n16, 2023. The record does not reflect which leg and knee was injured nor does it reflect how the \ninjury occurred. Respondents on September 29, 2023, filed a Form AR-2, representing that there \nwas no evidence to support a work-related injury. Attorney Jason Ryburn entered his appearance \non behalf of the Respondents on November 7, 2023.  \nOn February  5,  2024, Attorney Peoples, filed  a  Motion  to  Withdraw  as  Counsel. There \nPeoples  alleges  the  Claimant  has  failed  or  refused  to  communicate  with  him  for  several  weeks, \ndespite his numerous and repeated attempts. The Motion was granted on February 26, 2024. \nThe Respondents next filed a Motion to Dismiss on March 1, 2024, requesting this claim \nbe dismissed for a lack of prosecution. The Claimant was sent a certified notice of the Motion to \nDismiss to his last known address of record on March 6, 2024. The certified notice was unclaimed.  \nHowever,  the  same  notice  was  also  sent  regular  First-Class  mail  on  the  same  day  and  was  not \nreturned to the Commission. Nevertheless, the Claimant did not respond to the notice in writing. \nThus, in accordance with applicable Arkansas law, the Claimant was mailed due and proper legal \nnotice of both the Respondents’ Motion to Dismiss and the hearing notice at his current address of \nrecord  via  the  United  States  Postal  Service  (USPS),  First  Class  Certified  Mail,  Return  Receipt \nRequested, and regular First-Class Mail. The certified notice was claimed by Claimant on April 1, \n2024. The hearing took place on May 3, 2024. As mentioned before, the Claimant did not show \nup to the hearing. \n \n \n\nMOORE, AWCC No. H306149 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The  Claimant and  Respondents  both  had  reasonable  notice of  the May 3,  2024, \nhearing. \n \n3. Respondents have proven by the preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith  proper  notice, on  the Respondents’ Motion  to Dismiss. Commission  Exhibit  1  provides \nmultiple Certified U.S. Mail Return Receipts. One receipt dated April 1, 2024, was served on the \nClaimant. Despite receiving this notice, the Claimant did not show up to the hearing. The Claimant \nwas initially made aware of the Motion to Dismiss when it was sent to him March 6, 2024, via \ncertified and  regular  First-Class  mail.  He  did  not  claim  the  certified letter.  However,  the notice \nsent  regular  First-Class  U.S.  Mail  was  not  returned  to  the  Commission. Thus,  I  find  by  the \npreponderance of the evidence that reasonable notice was given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution.  The  Claimant  filed  his  Form  AR-C  on \nSeptember 21, 2023, and since then has taken no action in furtherance of this claim. When notice \nof the Motion to Dismiss hearing was received by him on April 1, 2024, he failed to appear or send \n\nMOORE, AWCC No. H306149 \n \n4 \n \nany correspondence objecting to the motion or requesting a hearing. In this regard, the Claimant \nhas  failed  to  do  the  bare  minimum  in  prosecuting  his  claim.  Therefore,  I  do  find  by  the \npreponderance  of  the  evidence  that  Claimant  has  failed  to  prosecute  his  claim. And  as  a  result, \nRespondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted and this claim is hereby dismissed without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6583,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H306149 GARRETT MOORE, EMPLOYEE CLAIMANT HINO MOTOR MFG USA INC, EMPLOYER RESPONDENT FIRST LIBERTY INSURANCE CORP., CARRIER/TPA RESPONDENT OPINION FILED MAY 28, 2024 Hearing conducted on Wednesday, May 3, 2024, before the Arkansas Workers’ Compensation Commis...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:54:47.749Z"},{"id":"alj-H304517-2024-05-28","awccNumber":"H304517","decisionDate":"2024-05-28","decisionYear":2024,"opinionType":"alj","claimantName":"Ana Parker","employerName":"Conway Family Dental","title":"PARKER VS. CONWAY FAMILY DENTAL AWCC# H304517 MAY 28, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PARKER_ANA_H304517_20240528.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PARKER_ANA_H304517_20240528.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H304517 \n \nANA L. PARKER, EMPLOYEE            CLAIMANT \n \nCONWAY FAMILY DENTAL, EMPLOYER    RESPONDENT \n \nMARKEL SERVICE INCORPORATED IS THE  \nSERVICING ENTITY FOR THE WORKERS’  \nCOMPENSATION CARRIER, FIRSTCOMP INSURANCE  RESPONDENT \n            \n \n \nOPINION FILED MAY 28, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on May 21, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Amelia Botteicher, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on May 21, 2024, in Little Rock, \nArkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArkansas Code Ann. 11-9-702 and Rule 13 of the Workers’ Compensation Act.   The \n\nclaimant was Pro Se and originally filed a Form AR-C on August 30, 2023, claiming \ntemporary partial and other benefits.   A Form AR- 2 was filed on or about September \n28, 2023, and also on July 18, 2023, accepting the injury to the right hand and long \nfinger, but denying the claim to the right shoulder.  At the time of the above hearing, the \nclaimant was pro se and failed to appear for the hearing.    \nA Request to Dismiss the Claim and the cover letter provided notice for the filing \ndated March 11, 2024, which requested that the matter be dismissed for lack of \nprosecution.  The claimant has not requested a hearing to date and more than six \nmonths have passed since the filing of the original claim.   \n Appropriate notice was provided to the claimant notifying her that a hearing on \nthe Motion to Dismiss was set for May 21, 2024, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the \nhearing, Amelia Botteicher appeared on behalf of the Respondents and asked that the \nmatter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for \nthe Respondent, I find that this matter should be dismissed without prejudice, for failure \nto prosecute pursuant to A.C.A. 11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to \ndismiss this claim in its entirety, without prejudice, for failure to prosecute. \n\n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2589,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304517 ANA L. PARKER, EMPLOYEE CLAIMANT CONWAY FAMILY DENTAL, EMPLOYER RESPONDENT MARKEL SERVICE INCORPORATED IS THE SERVICING ENTITY FOR THE WORKERS’ COMPENSATION CARRIER, FIRSTCOMP INSURANCE RESPONDENT OPINION FILED MAY 28, 2024 Hearing before Administra...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:54:49.827Z"},{"id":"alj-H305153-2024-05-24","awccNumber":"H305153","decisionDate":"2024-05-24","decisionYear":2024,"opinionType":"alj","claimantName":"Ricky Smith","employerName":"Ark. Dept. Of Transp","title":"SMITH VS. ARK. DEPT. OF TRANSP. AWCC# H305153 MAY 24, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Smith_Ricky_H305153_20240524.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Smith_Ricky_H305153_20240524.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305153 \n \n \nRICKY SMITH, EMPLOYEE CLAIMANT \n \nARK. DEPT. OF TRANSP., \n EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS, \n CARRIER/TPA RESPONDENT \n \n \nOPINION FILED MAY 24, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on April 12, 2024, in Forrest \nCity, St. Francis County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr. Robert  H. Montgomery,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On April  12,  2024,  the  above-captioned  claim  was  heard  in Forrest  City, \nArkansas.   A  prehearing  conference  took  place  on February  5,  2024.   The  Prehearing \nOrder  entered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection \nas  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n The   parties   discussed   the   stipulations   set   forth   in   Commission   Exhibit  1.  \nFollowing an amendment of Stipulation No. 2 to correct a typographical error, they are \nthe following, which I accept: \n\nSMITH – H305153 \n \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The    employee/employer/carrier/third-party     administrator     relationship \nexisted  among  the  parties  on  August  6,  2020,  when  Claimant  was \ninvolved in a motor vehicle accident. \n3. Respondents have controverted this claim in its entirety. \n4. Claimant’s  average  weekly  wage  entitles  him  to  the  maximum \ncompensation rates, $711.00/$533.00. \nIssues \n The  parties  discussed  the  issues  set  forth  in  Commission  Exhibit  1.   The \nfollowing were litigated: \n1. Whether  this  claim  is  barred  by  the  statute  of  limitations;  or  whether \nRespondents are estopped from raising this defense. \n2. Whether  Claimant  sustained  compensable  injuries to  his  neck,  back, \nshoulders, chest, and arms by specific incident. \n3. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of his alleged injuries. \n4. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits from \nAugust 12, 2020, to a date yet to be determined. \n6. Whether Respondents  are  entitled  to  an  offset  concerning  the  short-term \ndisability benefits paid to Claimant in connection with his alleged injuries. \n\nSMITH – H305153 \n \n3 \n \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are as follows: \nClaimant: \n1. Claimant contends that on August 6, 2020, he was rear-ended in a motor \nvehicle  accident.    This  resulted  in compensable injuries  to  his  neck, \nshoulders, chest, arms, and back.  He also suffers from nervousness and \nanxiety,\n1\n and  has  discomfort  when  sleeping  or  when  walking  for  an \nextended period. \n2. Claimant further contends that he is entitled to reasonable and necessary \nmedical treatment, plus temporary total disability benefits. \nRespondents: \n1. Claimant alleged that he sustained injuries as the result of a motor vehicle \naccident on August 6, 2020.  Respondents have controverted this claim in \nits entirety. \n2. Information  currently  available  reflects  that  Claimant  may  have  been \ninvolved in a motor vehicle accident on his way to work on August 6, 2020.  \nHe  had  not  started  work  that  day  and  was  not  performing  employment \n \n \n1\nClaimant did not raise an issue regarding whether his alleged “nervousness and \nanxiety” are compensable.  I am unable to raise issues sua  sponte.    For  that  reason, \nthis  will  not  be  addressed.   But I  nonetheless  note  that  nothing  in  the  medical  records \nbefore  me  show  that  Claimant  has  made  a prima  facie case  that  he  has  sustained  a \ncompensable mental injury under Ark. Code Ann. § 11-9-113 (Repl. 2012). \n\nSMITH – H305153 \n \n4 \n \nservices at the time of the accident as required by Ark. Code Ann. § 11-9-\n102(4)(B)(iii) (Repl. 2012). \n3. Claimant  filed  a  Form  AR-C  dated  September  13,  2023.    The  form \nappears  to  have  been  received  by  the  Commission  on  September  18, \n2023.  It was received by Respondent Public Employee Claims Division on \nSeptember 19, 2023.  Respondents contend that this claim was not timely \nfiled  as  required  by Ark.  Code  Ann. § 11-9-702(a)(1) (Repl.  2012) and  is \ntherefore  barred  by  operation  of  the  statute.    That  provision  states  that \nclaims for compensation shall be barred unless filed with the Commission \nwithin  two  years  from  the  date  of  injury.    This  claim  was  filed  more  than \nthree years after the date of the motor vehicle accident for which Claimant \nnow requests benefits; therefore, it is time-barred. \n4. In  the  event  that  this  claim  is  ultimately  found  to  be  compensable, \nRespondents contend that:  (1) the notice provisions of Ark. Code Ann. § \n11-9-701(a)(1)  (Repl.  2012)  apply  to  the  facts  of  this  claim  and  that \nRespondents  are  thus  not  responsible  for  disability,  medical,  or  other \nbenefits prior to the receipt of Claimant’s report of injury; and (2) they are \nentitled  to  all  applicable  credits and  offsets  related  to  his  receipt  of  other \ndisability and/or indemnity benefits from other sources. \n\nSMITH – H305153 \n \n5 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  deposition \ntestimony,  documents,  and  other  matters  properly  before  the  Commission,  and  having \nhad  an  opportunity  to  hear  the  testimony  of  the  witnesses  and  to  observe  their \ndemeanor,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  the \ninstant  claim  for  initial  benefits  was  timely  filed.    Instead,  the  evidence \npreponderates that it is barred by the statute of limitations set forth in Ark. \nCode Ann. § 11-9-702(a)(1) (Repl. 2012). \n4. Because  of  the  above  finding,  the  remaining  issues–whether  Claimant \nsustained  compensable  injuries  to  his  neck,  back,  shoulders,  chest,  and \narms  by  specific  incident, when  did  he  provide  notice  of  his  alleged \ninjuries,  whether  he  is  entitled  to  reasonable  and  necessary  medical \ntreatment  of  his  alleged  injuries,  whether  he  is  entitled  to  temporary  total \ndisability benefits, and whether Respondents are entitled to an offset–are \nmoot and will not be addressed. \n\nSMITH – H305153 \n \n6 \n \nCASE IN CHIEF \nSummary of Evidence \n The witnesses were Claimant and Lieutenant Lonnie Banks. \n Along  with  the Prehearing Order  discussed  above,  the  exhibits  admitted  into \nevidence in this case consist of the following:  Claimant’s Exhibit 1, a compilation of his \nmedical  records and  related  documentation,  consisting  of 952  numbered pages; \nRespondents’ Exhibit 1, another compilation of Claimant’s medical records, consisting \nof one index  page  and 22 numbered pages thereafter; Respondents’ Exhibit 2, non-\nmedical records, consisting of one index page and 21 numbered pages thereafter; and \nRespondents’ Exhibit 3, the transcript of the deposition of Claimant taken December 11, \n2023, consisting of 79 numbered pages. \nADJUDICATION \nA. Statute of Limitations \n Claimant has alleged herein that he sustained compensable injuries to his neck, \nback,  shoulders,  chest,  and  arms  by  specific  incident  as  a  result  of  a  motor  vehicle \naccident  that  the  parties  have  stipulated  took  place  on  August  6,  2020.   Respondents \nhave  controverted  this  claim  in  its  entirety,  per  another  stipulation.   As  Claimant \nacknowledged  in  his  testimony  and  the  evidence  otherwise  shows,  no  benefits  of  any \ntype  have  been  paid  in  connection  with  this  claim.   Arkansas  Code  Annotated  §  11-9-\n702(a)(1)  (Repl.  2012)  sets  out  the  applicable  statute  of  limitations concerning  a  claim \nfor initial benefits: \n\nSMITH – H305153 \n \n7 \n \nA claim for compensation for disability on account of an injury, other than \nan occupational disease and occupational infection, shall be barred unless \nfiled with the Workers’ Compensation Commission within two (2) years \nfrom  the  date  of  the  compensable  injury.    If  during  the  two-year  period \nfollowing  the  filing  of  the  claim  the  claimant  receives  no  weekly  benefit \ncompensation  and  receives  no  medical  treatment  resulting  from  the \nalleged  injury,  the  claim  shall  be  barred  thereafter.    For  purposes  of  this \nsection, the date of the compensable injury shall be defined as the date an \ninjury is caused by an accident as set forth in § 11-9-102(4). \n \nSee  Wynne  v.  Liberty  Trailer,  2022  Ark.  65,  641  S.W.3d  621.   The  burden  rests  on \nClaimant to prove that his claim was timely filed.  Stewart v. Ark. Glass Container, 2010 \nArk.  198,  366  S.W.3d  358; Kent  v.  Single  Source  Transp.,  103  Ark.  App.  151,  287 \nS.W.3d 619 (2008).  Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), he must do \nso by a preponderance of the evidence.  The standard “preponderance of the evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’s \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n\nSMITH – H305153 \n \n8 \n \n In order to be timely, Claimant’s Form AR-C needed to have been filed within two \nyears  of  the  accident, or  by  August  6,  2022.    However, he did not sign the  claim  form \nuntil over 13 months past this deadline, on September 13, 2023; and it was not filed with \nthe  Commission  until  five  days  thereafter,  on  September  18,  2023.    Consequently, the \nstatute  of  limitations  was  clearly  abridged;  and  Claimant  has  not  met  his  burden  of \nestablishing that it was filed in a timely manner. \n In  an  effort  to  avoid  this  result,  Claimant  has  asserted  that the  doctrine  of \nequitable  estoppel  should  bar  Respondents  from  raising  this  affirmative  defense.    In \nSnow  v.  Alcoa,  15  Ark.  App.  205,  691  S.W.2d  194  (1985),  the  Arkansas  Court  of \nAppeals addressed whether the doctrine of estoppel operates as a bar to the raising by \nrespondents of the statute of limitations in the context of a workers’ compensation claim.  \nThe court wrote: \nEstoppel   is   an   equitable   doctrine which   is   invoked   in   appropriate \ncircumstances  to  prevent  a  party  from  prevailing  on  purely  technical \ngrounds  after  having  acted  in  a  manner  indicating  that  the  opposing \nparty’s strict compliance with the technicality would not be required.  In \nFoote’s Dixie Dandy v. McHenry, Adm.,  270  Ark.  816,  607  S.W.2d  323 \n(1980),  the  Arkansas  Supreme  Court stated  the  necessary  elements  of \nestoppel.  The Court said: \n \n(1)  the  party  to  be  estopped  must  know  the  facts;  (2)  he  must \nintend  that  his  conduct  shall  be  acted  on  or  must  so  act  that  the \nparty asserting the estoppel had a right to believe it is so intended; \n(3) the latter must be ignorant of the true facts; and (4) he must rely \non the former’s conduct to his injury. \n \n In  the  case  at  bar, none of the four elements listed above weigh in Claimant’s \nfavor.  Regarding Element No. 1, Claimant was in his personal vehicle, en route to his \n\nSMITH – H305153 \n \n9 \n \njob as an officer with the State of Arkansas Highway Police, at the time he was struck.  \nHe  contacted  Lieutenant  Banks,  his  supervisor,  to  inform  him  that  as  a  result  of  the \naccident, he was not feeling well and was going home to rest.  By Claimant’s own \nadmission,  at  the  time  of  the  collision,  he  had  not  yet  clocked  in  and  was  not  yet \nperforming  any  of  his  law  enforcement  duties;  he  was  merely  commuting  to  work.  \nCertainly,  Banks  was  not  in  a  position  to  believe  otherwise.    In Hudak-Lee  v.  Baxter \nCounty Reg. Hosp., 2011 Ark. 31, 378 S.W.3d 77, the Arkansas Supreme Court stated: \nIn  order  for  an  accidental  injury  to  be  compensable,  it  must  arise  out  of \nand  in  the  course  of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i) \n(Supp.  2009).    A  compensable  injury  does  not  include  an  injury  that  is \ninflicted upon  the employee at  a  time  when employment  services are  not \nbeing performed. Ark. Code Ann. § 11-9-102(4)(B)(iii) (Supp. 2009).  The \nphrase “in the course of employment” and the term “employment services” \nare not defined in the Workers' Compensation Act.  Texarkana Sch. Dist. \nv. Conner, 373 Ark. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court \nto  define  these  terms  in  a  manner  that  neither  broadens  nor  narrows  the \nscope of the Act.  Id. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \nthe  course  and  scope  of  employment.  Jivan  v.  Econ.  Inn  &  Suites,  370 \nArk. 414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred \nwithin  the  time  and  space  boundaries  of  the  employment,  when  the \nemployee  was  carrying  out  the  employer's  purpose  or  advancing  the \nemployer's interest, directly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 \nS.W.3d  57,  we  stated  that  where  it  was  clear  that  the  injury  occurred \noutside the time and space boundaries of employment, the critical inquiry \nis  whether  the  interests  of  the  employer  were  being  directly  or  indirectly \nadvanced by the employee at the time of the injury.  Moreover, the issue \nof  whether  an  employee  was  performing  employment  services  within  the \ncourse of employment depends on the particular facts and circumstances \nof each case.  Id. \n\nSMITH – H305153 \n \n10 \n \n \nBanks  testified  that  Claimant  never  approached  him  and  indicated  that  he  wanted  to \ninitiate the workers’ compensation process.  Instead, Banks assisted him with applying \nfor leave under the Family Medical Leave Act (“FMLA”).  I credit this. \n Concerning  Element  No.  2,  the  evidence  does  not  show  that  Banks  said  or  did \nanything to dissuade Claimant from filing a workers’ compensation claim earlier than he \ndid.  Claimant eventually filed his Form AR-C on the advice of his physician, Dr. Lloyd \nRobinson.    It  was  Claimant's  testimony  that  as  part  of  his  training  for Respondent \nemployer, “[w]orkman [sic] comp was never mentioned.”  In contrast, Banks’s testimony \nwas  that  Claimant  as  an  Arkansas  Highway  Police  officer  not  only  received  training \nregarding workers’ compensation, but that he was a recipient of emails that were sent \nout  concerning  the  process.    This  includes  a  program  called  Company  Nurse.    The \nfollowing exchange took place while Lieutenant Banks was on the witness stand: \nQ. Have  you  ever,  in  the  course  of  this  action,  did  you  ever  advise \n[Claimant] not to file a workers’ compensation claim? \n \nA. No, sir. \n \nQ. Did you do anything that slowed down or deterred him from filing a \nworkers’ compensation claim? \n \nA. No, sir. \n \nAfter consideration, I credit Banks over Claimant.  In so doing, I note that photographs \nin evidence, which depict the bulletin board at the location where Claimant reported to \nwork, included the contact information for Company Nurse that was to be employed “IN \nCASE OF WORKPLACE INJURY” (emphasis in original). \n\nSMITH – H305153 \n \n11 \n \n As  for  Element  No.  3,  Claimant  was  hardly  ignorant  of  the  true  facts.    As \ndiscussed  above,  he  was  the  one  person  who  had  in  his  possession  all  of  the  facts \nsurrounding  his  motor  vehicle  accident.    Moreover,  he  had  been  instructed  in  the \nprocess of filing a workers’ compensation claim.  That doing so did not occur to him until \nhis conversation with Dr. Robinson does not excuse this. \n Finally,   with   respect   to   Element   No.   4, the   evidence   establishes   that \nRespondents  did  not  engage  any  conduct  on  which  Claimant  relied  to  his  detriment.  \nNeither  Banks  nor  anyone  affiliated  with  Respondents  did  anything  whatsoever  to \nprevent Claimant from filing a claim earlier than he did.  In sum, the doctrine of equitable \nestoppel  does  not  bar  Respondents  from  asserting  their  statute-of-limitations  defense \nhere. \n Claimant cannot, and has not, proven that the instant claim was timely filed under \nArk. Code Ann. § 11-9-702(a)(1).  Instead, the evidence preponderates that it is barred \nby the statute of limitations set forth in Ark. Code Ann. § 11-9-702(a)(1) (Repl. 2012). \nB. Remaining Issues \n Because  this  claim  is  time-barred,  the  remaining  issues–whether  Claimant \nsustained  compensable  injuries  to  his  neck,  back,  shoulders,  chest,  and  arms  by \nspecific  incident,  when  did  he  provide  notice  of  his  alleged  injuries,  whether  he  is \nentitled to reasonable and necessary medical treatment of his alleged injuries, whether \nhe  is  entitled  to  temporary  total  disability  benefits,  and  whether  Respondents  are \nentitled to an offset–are moot and will not be addressed. \n\nSMITH – H305153 \n \n12 \n \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth  above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":18926,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305153 RICKY SMITH, EMPLOYEE CLAIMANT ARK. DEPT. OF TRANSP., EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS, CARRIER/TPA RESPONDENT OPINION FILED MAY 24, 2024 Hearing before Administrative Law Judge O. Milton Fine II on April 12, 2024, in Forrest City, St. Franc...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:2","denied:1"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:54:43.431Z"},{"id":"alj-H203243-2024-05-23","awccNumber":"H203243","decisionDate":"2024-05-23","decisionYear":2024,"opinionType":"alj","claimantName":"Kyle Mckaughan","employerName":"U Of A Division Of Agri","title":"MCKAUGHAN VS. U OF A DIVISION OF AGRI AWCC# H203243 MAY 23, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MCKAUGHAN_KYLE_H303552_20240523.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCKAUGHAN_KYLE_H303552_20240523.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H303552 \n \nKYLE MCKAUGHAN, Employee CLAIMANT \n \nU OF A DIVISION OF AGRI, Employer RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT \n \n \n \n OPINION FILED MAY 23, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents  represented  by ROBERT  H.  MONTGOMERY,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On February  27,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on August  14,  2023,  and  a  Pre-hearing \nOrder  was  filed  on August  18,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on January \n27, 2023. \n 3. The respondents have controverted this claim in its entirety. \n\nMcKaughan – H303552 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $609.00 for temporary total disability benefits and $457.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant suffered a compensable occupational disease in the form of cancer \ndeveloped as a result of his employment with the respondent with a last exposure date of January \n27, 2023. \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for a compensable  occupational \ndisease in the form of cancer as a result of his employment with the respondent. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  January  28, \n2023, to a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n 5. Respondents raise lack of notice as a defense in that the May 26, 2023, AR-C was the \nfirst notice of any alleged work-related injury. \n 6. Whether Claimant is entitled to benefits under A.C.A. §11-9-527. \n The claimant's contentions are as follows: \n“Claimant  contends  he  is  entitled  to  medical  treatment  for  cancer. \nClaimant reserves all other issues.” \n \n The respondents’ contentions are as follows: \n“The  claimant  alleges  he  contracted  cancer  as  a  result  of  his \nemployment with the respondents. The claimant filed a Form AR-\nC on June 1, 2023, and lists the date of injury as January 27, 2023. \n \nThe  respondents  contend  that  the  claimant  did  not  contract  cancer \nas a result of his employment with the University of Arkansas. The \nclaimant filed a Form AR-C dated May 27, 2023 (Copy attached). \nThe  Form  AR-C  appears  to  have  been  received  by  the  Arkansas \n\nMcKaughan – H303552 \n \n-3- \nWorkers’ Compensation Commission on June 1, 2023.The  Form \nAR-C   was   received   by   Respondent   Public   Employee   Claims \nDivision on June 5, 2023. The respondents would contend that the \nnotice provisions of Ark. Code Ann. §11-9-701 (a)(1) apply to the \nfacts  of  this  claim  and  the  respondents  are  not  responsible  for \ndisability,   medical,   or   other   benefits   prior   to   receipt   of   the \nemployee’s report of injury. \n \nThe   respondents   contend   that   the   claimant   did   not   sustain \ncompensable injuries while in their employ. The respondents have \ncontroverted this claim for benefits. \n \nIn  the  alternative,  if  it  is  determined  the  claimant  sustained  a \ncompensable   injury(ies)   and   is   entitled   to   any   benefits,   the \nrespondents  hereby  request  an  offset  for  all  benefits  paid  by  the \nclaimant’s group health carrier, all short-term  disability  benefits \nreceived by the claimant, all long-term disability benefits received \nby  the  claimant,  and  all  unemployment  benefits  received  by  the \nclaimant. Respondents contend that it would be entitled to a credit \npursuant  to  A.C.A.  §11-9-411  against  any  additional  indemnity \nbenefits that may be awarded to the claimant. \n \nThe  Respondents  reserve  the  right  to  offer  additional  contentions, \nor   to   modify   those   stated   here,   pending   the   completion   of \ndiscovery.” \n \n The claimant in this matter is deceased,  having passed away on December 11, 2023. The \nclaimant’s Certificate of  Death found at Claimant’s Exhibit 2, page 28, indicates the following \ncauses  of  death:  cardiac  failure,  protein  calorie,  malnutrition,  and  multiple myeloma.  The \nclaimant  was  employed  by  the  respondent  as  a Safety Officer  as  he  described  in  his  deposition \ntaken  August  29,  2023.  The  claimant  filed  an  AR-C  with  the  Commission  on  June  1,  2023.  In \nthat  AR-C the claimant was asked to “briefly describe the part of the body and the cause of \ninjury.” The claimant responded, “I developed cancer as a result of my work.” The claimant has \nasked  the  Commission  to  determine  if  he  suffered  a  compensable  occupational  disease  in  the \nform of cancer developed as a result of his employment with the respondent with a last exposure \ndate of January 27, 2023. \n\nMcKaughan – H303552 \n \n-4- \n In the claimant’s deposition roughly three months prior to his death, he testified about his \nwork  duties  for  the  respondent  as  a  Safety  Officer.  In  2014  the  claimant  began  to  work  for  the \nrespondent  university  on  what  he  termed  the  “farm.”  This  was  essentially  the  respondent \nagricultural department’s farms and experimental stations. The claimant’s main office was in \nFayetteville,  but  he  would  also  travel  around  the  state  to  eleven  other  respondent  owned \nlocations.  The  claimant  testified  that  once  a  month  he  would  spend  a  couple  of  days  at  the  off-\nsite  stations  performing  safety  training,  inspections, and  picking  up  chemicals  to  bring  back  to \nthe Fayetteville facility.  \n The claimant was asked in his deposition about handling and accounting for chemicals in \nhis job as a safety officer: \nQ Okay.  And  I  guess – and you’ve mentioned a couple of \ntimes  already  having  to  deal  with  some  chemicals.  You  talked \nabout  that  at  the  lab  audits  and  now  working,  doing  these  farm \ninspections.  Describe  for  me,  Kyle,  if  you  could,  what  you  mean \nby handling the chemicals or accounting for these chemicals. What \nall did that require you to do? \n \nA Okay. Well, if there’s some used up chemicals, say at food \nscience – that’s where my office was at – they  would  send  me  an \nemail and say “Kyle, I got, you know, four liters of acid to pick \nup,” and I’d go pick up the acid. Then I’d put it in this storage \nroom that I have there on the farm. And I’d put the used chemicals \nin  that  storage  room,  and  then  once  a  month,  we  had  an  outside \ncompany come pick up the chemicals to haul off, to get rid of. But \nI  would  just  haul  the  chemicals  to  the  storage  room  but – and  go \nfrom there. \n \nQ And  was  there  a  storage  room  on  each  different  farm  or \nexperiment  station?  Or  did  you  have  just  one  storage  room  in \nFayetteville or some place? \n \nA I – I just had one there in Fayetteville. And you know, if I \nhad to pick up chemicals, say, in Stuttgart it was a lot cheaper for \nme to pick them up in Stuttgart and take them back to Fayetteville \n\nMcKaughan – H303552 \n \n-5- \nthan  it  was  for  me  to  have  the  company  come  out  to  Stuttgart  to \npick up the chemicals. So I was just trying to save money that way. \n \nQ And if you had to transport those chemicals from, let’s say \nStuttgart back to the storage room in Fayetteville, how would that \nwork? Did you put them in some sort of container that wouldn’t \nleak  and  put  them  in  the  vehicle  and  drive  them  back  up  to \nFayetteville?  Or  would  you – did  you  have  to  do  special  kind  of \nhandling for those kind of things? \n \nA No, they’d be in a box. I mean, I wouldn’t haul anything \nthat  was  dangerous  as  far  as  flammables,  things  like  that.  I \nwouldn’t haul that. But as far as pesticides, herbicides, no, they \nwere in a box or they were secured. But they were in – I wouldn’t \nhaul  anything  inside  my  cab,  inside  my – especially  herbicides, \npesticides,  and  all  that.  That  gets  smelling  pretty  bad.  But – I \nalways  made  sure  that  instead  of  spending  the  night  somewhere, \nI’d make sure – say I went to Stuttgart. I’d make sure I made it \nback to Fayetteville and not have to spend the night anywhere, you \nknow, a hotel or something like that. I wouldn’t care if someone \ntook the chemicals, but I wouldn’t want to get in trouble either so – \n \nQ I  gotcha.  And  when  you  say  these  chemicals  might  have \nbeen in boxes or whatever and they were secured, kind of explain \nto me, what do you mean by that? \n \nA Well, they would just be put in boxes so they wouldn’t roll \nall over the back of the cab. \n \nQ Okay. Would they be – \n \nA.  Boxes or containers. Yes. \n \nQ Would  they  be  taped  up  or  sealed  up  somehow  or  another \nor – \n \nA.  Yes, sir. \n \nQ Okay. \n \nA Yeah. \n \nQ And  would  you – would  you  be – would  you  have  been \nresponsible  for  taping  up  the  boxes  or  securing  the  boxes,  say,  in \n\nMcKaughan – H303552 \n \n-6- \nStuttgart before you started making your trip back to Fayetteville? \nOr did somebody else do that for you? \n \nA If there was no one else available, I’d do it. But usually, I’d \nwant them to do it. I’d want them to secure the boxes. \n \nQ And  if  they  secured  the  boxes  for  you,  I  guess  that  would \nkind  of  help  reduce  your  having  to  handle  them  and  that  kind  of \nthing? Is that right? \n \nA Correct.   Yeah.   The   less   people   that   handles,   yeah, \nchemicals or anything, sharps containers, anything, so... \n \n At the hearing in this  matter the  claimant’s supervisor, Nathan Van  McKinney, was \ncalled as a witness by the claimant. Mr. McKinney is the respondent’s Associate Vice-President \nfor Agriculture. Mr. McKinney gave a description of the storage shed where the claimant would \ntemporarily store chemicals before an outside/third party entity removed them. He described it as \na cinder block building with five or six rooms and estimated it to be about 1,200 square feet. On \ncross  examination  Mr.  McKinney  explained  that  the  building  is  ventilated  with  a  fan  that \nautomatically  comes  on  when  someone  enters  the  building.  Mr.  McKinney  took  over  the  job \nduties  of  picking  up  chemicals  and  biowaste  for  the  claimant  after  he  became  ill  and  unable  to \nwork. \n In  his  deposition  the  claimant  was  asked  about  exposure  to  chemicals  during  his  job \nduties for the respondent and his use of proper protective equipment (PPE) as follows: \nQ As  you  would  have  to  work  or  handle  these  chemicals  at \nthese  various  locations,  besides – you’ve described for me about \nhow  they  would  be  boxed  up  on  occasion  and  you  would  drive \nthem back to Fayetteville. But besides that exercise of transporting \nthe chemicals, were you somehow or another exposed to chemicals \nin  other  aspects  of  your  job,  like  doing  other  things  where  you \nwould come in, have some exposure to chemicals? \n \nA Well,  yeah.  I  mean,  if  there  was  a  spill  in  one  of  the  labs, \nI’d have to go in and clean it up. You know, clean it up properly. \n\nMcKaughan – H303552 \n \n-7- \nI—I—I’d rather do it than someone else do it because I had all the \nproper  PPE  and  all  that  and  disposed  of  it  properly  too – any \nchemical spills. \n \nQ Okay. That – that’s kind of what I was wondering. If you – \nif you ever had to do anything like that with chemicals, would you \nhave – would  you  wear  a  mask  and  gloves  and  that  kind  of \nequipment? \n \nA Yes, sir. \n \nQ I  guess – I  guess  as  a  safety  officer,  you  would  know  the \nimportance of doing it that way. Correct? \n \nA Yeah.  It  wouldn’t  look  good  if  I  went  in  there  without \nsomething. \n \nQ As far as you can remember, did the – did the university or \nfor that matter yourself, did you – were you always provided with \nthat protective equipment that you needed to do your job? \n \nA Yes, sir. \n \nQ I  guess  I’m  wondering,  did  you  ever  have  an  occasion \nwhere you had to do something around all these chemicals and you \ndidn’t  have  a  mask  or  the  appropriate  equipment?  Do  you \nremember ever – that ever happening? \n \nA No. The only – the only thing, I came in contact with some \n– I don’t know if you know what methyl bromide is. They used to \nuse it – it’s outlawed now, but they used to use it a long time ago \nto kill bugs underneath the ground to grow things. It’s highly – I \nthink  the  Jews  used  to  use it  on  the  Germans  a  long,  long,  long \ntime ago, so it’s pretty dangerous. \n \nQ All right. \n \nA But anyway, there was a bottle – we found about five or six \nbottles there in Fayetteville that was really, really old. And I had to \nget rid of them. Well, one of them was leaking a little bit, had this \nfoam coming out of it. And I didn’t have the proper PPE at the \ntime, but then I went and got the proper PPE to shut off the valve. \nBut  any  other  time,  just – just  walking  in  a  building  that  the  vent \nwasn’t  turned  on  yet,  especially  herbicides,  pesticides.  I  don’t \n\nMcKaughan – H303552 \n \n-8- \nknow if you’ve ever been on a farm, but that stuff can smell pretty \nbad if you don’t have a vent on or something like that so... \n \n On direct examination by the claimant’s attorney Mr. McKinney was asked about his \nobservations of the claimant’s PPE use as follows: \nQ Okay.  So  did  you  observe – I  think  you  said  that  you \nobserved  Kyle  doing  his  work  from  time  to  time  transporting \nchemicals. \n \nA Uh-huh. \n \nQ Did you ever observe him with the chemicals when he was \nnot wearing gloves or a mask? \n \nA Yeah. Yes. \n \nQ  Would you say that was – how much of the time would you \nsay that would be? \n \nA I  am  merely  guessing,  but  I  would  say  about  half  the  time \nhe  was  wearing  all  of  the  appropriate  PPE  and  it  feels  like  about \nhalf the time I saw him he was not. \n \n On  cross  examination  Mr.  McKinney  was  asked  about  the  availability  of  PPE  for  the \nclaimant as follows: \nQ He  told  me  at  his  deposition  that  he  was  provided  by  the \nUniversity  all  of  the  proper  PPE  that  he  needed  to  do  his  job;  is \nthat correct? \n \nA How much do you want me to answer that? I don’t know. I \nsuspect that is the case, but I don’t know. \n \nQ Was there ever a time where Kyle came to you and said he \ndid not have the proper PPE to do his job? \n \nA No, not to me. \n \n On  re-cross  examination  Mr.  McKinney  was  asked  about  the  claimant  being  written  up \nfor not using appropriate PPE as follows: \n\nMcKaughan – H303552 \n \n-9- \nQ During  the  time  that  you  supervised  Mr.  McKaughan,  did \nyou ever have to write him up for not using the appropriate safety \nequipment? \n \nA No, I didn’t \n \nQ Did anybody else that you know of? \n \nA Not that I am aware of. \n \nQ If you knew that Kyle had not been using the proper safety \nequipment, Dr. McKinney, would you have written him up? \n \nA No. \n \nQ Why not? \n \nA I  would  have  given  him  a  reminder  that  he  is  expected  to \nset  a  good  example  and  that  we  need  to  remember  to  wear  our \nmasks and we need to remember to wear our gloves, but I can tell \nyou  for  a  fact  that  you  walk  in  those  labs  and  you  forget,  which  I \ndid  frequently.  You  walk  in  those  labs  and  the  people  who  are \nworking  in  those  labs  are  often  not  using  the  same  protective \nequipment  that  Kyle  would  have  been  expected  to.  So  it’s  just \neasy.  When  you  are  in  a  rush  when  you  are  trying  to  deliver  that \nstuff, it is easy to walk in, pick that stuff up and forget, which I did \nfrequently. \n \n At the hearing in this matter the claimant’s widow, Tonya McKaughan, gave testimony \nthat she had been to the storage shed one time and at that time chemicals were being removed by \na  third  party.  She  testified  at  that  time  that  she  did  not  observe  the  use  of  gloves  or  masks  by \nanyone  present.  The  claimant  testified  in  his  deposition  about  the  onset  of  his  symptoms  as \nfollows: \nQ Okay. So Explain to me, if you can, Kyle, how it was that – \nwhen  did  you  begin  to  notice  any  kind  of  symptoms  or  pain  or \nproblems that led you to go to the doctor to get this diagnosis? And \nkind of describe all that for me. \n \nA Well,  be  honest  with  you,  I  was  at  work  one  day  back – it \nwas  January – it  was  the  end  of  January.  And  I  just  felt  weird  at \n\nMcKaughan – H303552 \n \n-10- \nwork.  So  I  went  up  to  Pat  Walker  there  on  campus  and  took  my \nblood  pressure,  and  it  was  like  220-something  over  100-and- \nsomething. So I went to the emergency room. Luckily, they started \ndoing  blood  tests  and  somehow  I  lost  four  pints  of  blood.  Was \nmissing. You know, wasn’t in my stool; wasn’t in my urine. And \nthey just couldn’t find it. And luckily, there was a lady there that \nknew  a  little  bit  about  multiple  myeloma.  And  they  did  an  MRI \nand they found – my back was bothering me too, and that’s when \nthey  found  that  the  multiple  myeloma  started  eating  way  at  my – \nmy nerves in my back. That – that’s what caused all that – the pain \nin my back. But if it wasn’t for this lady coming by my office and \ntelling me, ‘Kyle, you look like” – sorry my language – “you look \nlike crap,” I probably wouldn’t have went to the doctor. But she \npretty  much  saved – you  know,  could  have  had  a  heart  attack  or \nsomething  like  that.  That  blood  pressure  was  that  high.  So  I  feel \nkind of lucky in some way, but I’m very unlucky in another so..... \n \nQ So that – that day you said sometime at the end of January \nof this year. Right? \n \nA Yes. \n \n The claimant was seen at Mercy Hospital Northwest Arkansas emergency department on \nJanuary  27,  2023,  and  was  admitted  to  the  hospital  at  that  time.  The  claimant  first  saw  Dr. \nPatrick Travis at Highlands Oncology on February 14, 2023. Dr. Travis followed and treated the \nclaimant throughout the remainder of his life. On November 3, 2023, Dr. Travis issued a lengthy \nsummary note detailing the claimant’s multiple myeloma and chronic lymphocytic leukemia, \nwhich  are  exceedingly  rare  conditions  for  one  person  to  simultaneously  have  according  to  Dr. \nTravis. Following is Dr. Travis’ November 3, 2023, summary note: \nMr.  Kyle  McKaughan  was,  at  first  visit,  a  60  y/o  (DOB  3/17/62) \nseen  in  clinic  for  first  time  on  2/14/23  for  initial  evaluation  and \nrecommendations   for   newly   diagnosed   lgG   Lambda   Multiple \nMyeloma  and  CCL,  B-cell  type.  He  was  admitted  directly  from \nMercy  ER  on  1/27  after  presenting  with  uncontrolled  HTN  and \nincidental finding of acute renal insufficiency, hypercalcemia, and \npancytopenia. Of note, he was admitted to NW Medical Center for \nnew-onset  atrial  fibrillation  12/21/22  and  cardioverted  by  Dr. \nSingh  and  placed  on  Eliquis.  TEE  at  that  time  showed  preserved \n\nMcKaughan – H303552 \n \n-11- \nEF  55-60%.  Lab  studies  dated  12/20/22  show  his  hemoglobin  14, \nHCT  42,  Platelet  181K,  Creatinine  0.8  with  BUN  12  and  normal \nelectrolytes.  Subsequently,  labs  on  1/27/23  after  presenting  to  ED \nwith    dizziness,    lightheadedness,    and    hypertension    showed \npancytopenia    (hemoglobin    8.8),    acute    renal    insufficiency \n(creatinine  2.4),  hyponatremia  (sodium  124  likely  secondary  to \npseudohyponatremia),   and   hypercalcemia   (calcium   13)   with \nelevated  total  protein  9.9  and  albumin  2.7.  He  was  transfused \npacked  red  blood  cells  during  hospitalization  for  hemoglobin  6.8. \nHe was given a dose of Zometa on 1/31 for hypercalcemia. Eliquis \nwas  stopped  due  to  thrombocytopenia  with  platelet  in  the  10-20 \nrange.  He  denied  any  signs  of  bleeding.  Workup  included  bone \nmarrow   biopsy   on   1/1/23   (Accession   #10195643)   revealing \nhypercellular marrow (>95%) with CD5+ cell lymphoproliferative \ndisorder,  favoring  CLL,  and  extensive  plasma  cell  involvement \nwith  core  biopsy  >95%  plasma  cells,  lambda  restricted.  Flow \ncytometry  on  plasma  cells  was  negative   for   CD20  but  CLL \npositive for CD20. \n \nFlow  cytometry  for  plasma  cells  also  showed  CD19  negative, \nCD38 detected, CD56 not detected, CD117 (KIT) negative, CD138 \ndetected,  cytogenetics  and  FISH  pending.  US  kidney  and  bladder \non  2/2  was  unremarkable.  Due  to  acute  on  chronic  lumbar  back \npain  he  had  an  XRAY  of  lumbar  spine  on  1/30,  revealing  mild \ncurvature  of  the  mid  lumbar  spine  convex  to  the  left.  Severe \nspondylosis  at  L2-L3  with  mild  changes  were  seen  at  L1-L2  and \nL3-L4.   Subsequently,   he   had   MRI   of   Lumbar   spine   without \ncontrast   showing   large   disc   bulge   with   posterior   spondylitic \nridging  that  impressed  on  anterior  thecal  sac  L2-L3.  Moderate  to \nsevere  narrowing  of  the  thecal  sac  and  crowding  of  cauda  equina. \nHe  was  seen  by  Dr.  Castellvi,  neurosurgery,  who  did  not  think \nsurgical  intervention  indicated.  Denied  any  change  in  bowel  or \nbladder  habits.  Pain  was  controlled  with  oxycodone  5  mg  oral  at \nnight.   Completed   4   days   of   pulsating   dexamethasone.   UPEP \ninpatient  showed  total  protein  of  7513  with  lgG  lambda  band.  A \ncomplete  SPEP  was  not  done  inpatient.  He  was  found  to  be  B12 \ndeficient and started on B12 supplement. \n \nLabs on first visit in clinic showed WBC 10 with ANC 2.4 (likely \nelevated  WBC  due  to  recent  steroids  with  no  signs  of  infection), \nHbg 6.4, HCT 18.5, Pit 20K, Cr 2.3 with NA 132 and Ca 7.3 with \nalb 2.5 (corrected Ca 8.1), TP11, LD 393, and Alk phos 60. \n \nHis  overall  course  was  further  complicated  by  hemolytic  anemia \nsecondary  to  antibody  production  from  his  Chronic  Lymphocytic \n\nMcKaughan – H303552 \n \n-12- \nLeukemia  precipitating  on  his  red  blood  cells.  Because  of  this \nemergent  initial  treatment  was  geared  at  treating  the  Chronic \nLymphocytic  Leukemia.  Starting  with  Cytoxan  and  Rituxan  and \nthen   expanding   his   treatment   to   include   drugs   for   multiple \nmyeloma.  Unfortunately,  although  slowing  his  hemolytic  anemia \nwe were never able to completely squelch the hemolysis. Also, we \nonly  barely  made  headway  on  his  myeloma.  Keeping  in  mind  he \nhad  profound  disease  in  his  marrow  (>95%)  and  extramedullary \nextension to disease involving the nerve roots of the cauda equina. \n \nThe lifetime risk of Multiple Myeloma is 0.76% Correspondingly, \nthe  risk  of  Chronic  Lymphocytic  Leukemia  is  0.39%.  Looking  at \nthese  two  rare  B-cell  malignancies  the  risk  of  developing  both  at \nthe   same   time   would   be   exceedingly   rare.   The   chance   of \ndeveloping  these  malignancies  de-novo   without  environmental \ninfluence would likely be impossible. \nEnvironmental  influence  leading  to  both  Multiple  Myeloma  and \nChronic   Lymphocytic   Leukemia: Agent   Orange   exposure   in \nVietnam, Camp Lejeune water exposure, and Roundup exposure. \n \nDay in and day out Mr. McKaughan transported a variety of toxic \nchemicals,    corrosive    agents,    heavy    metals,    pesticides,    and \nherbicides.   Many   of   the   chemicals   Mr.   McKaughan   handled \nextensively  and  transported  are  carcinogenic.  After  visiting  with \nMr. McKaughan extensively and reviewing the chemical exposures \nhe  has  had,  it  is  clear  that  this  was  secondary  to  work  exposure \nleading  to  his  malignancies.  Mr.  McKaughan  is  at  this  point \ncompletely  and  totally  disabled.  He  has  months  of  recovery  from \nhis  nearly  life-ending  treatment,  a  treatment  required  because  of \nthe  complexity  of  his  dual  malignancies.  These  malignancies  will \ndefine his life for the foreseeable future. \n \n*** \nSubsequent  to  the  first  summary  I  complete  Mr.  McKaughan  was \nhospitalized    with    a    catastrophic    cardiovascular    event    with \ncombination  of  stroke  and  heart  attack.  I  want  to  state  again,  had \nMr. McKaughan not spent such an extensive time exposed to these \ncarcinogenic chemicals this would not have happened. \n \n In  Dr.  Travis’  November  3,  2023,  summary  note  he  also  discusses  belief  that  the \nclaimant’s job duties of handling hazardous waste as described above was the cause of the \nclaimant’s two exceedingly rare and simultaneous cancers. \n\nMcKaughan – H303552 \n \n-13- \n Dr.  Travis  was  deposed  on  January  19,  2024.  That  deposition  has  been  admitted  into \nevidence as Joint Exhibit 1. Dr. Travis has been board certified in oncology but was at the time \nof the deposition board eligible in oncology because of required testing during the COVID time \nperiod that he was unable to perform. Dr. Travis  is a founding member of Highlands Oncology \nand  has  been  a  participating  member for  26  or  27  years.  During  Dr.  Travis’  deposition  he \nextensively  discussed  the  two  types  of  cancer  afflicting  the  claimant  and  both  doing  so  at  the \nsame time being such a rare event.  \nQ Okay.   Explain   to   me   how   that   would   work   for   the \npopulation. \n \nA So, if you – right now, if you did – went to the database and \nyou look to see about patients who have both the diagnosis of CLL \nand multiple myeloma, what you would find is that there are cases, \nbut they’re very, very rare. So, most of the time those are listed as \nwhat’s called case reports. There’s not enough to study a group. \nThere’s single cases that are listed. If you look at those cases, most \nof  those  are  because  the  B-cell  clone,  the  cell  that  went  bad \nbecause  of  malignancy,  it  has  somewhat  waffled  between  chronic \nlymphocytic leukemia and multiple myeloma. The most common – \nI’m going to try not to get too far into the weeds. But the most \ncommon is where you have an AGA secreting CLL, so that’s the \nantibody it makes, the IGA, and then it matures or transforms over \ntime and you also have multiple melanoma, but the cell clone, the \nbad cell, is the same. Kyle was different. He had two independent \ncell  clones  that  developed  a  malignant – malignancies  at,  we \nbelieve,  the  same  time.  The  reason  that  we  believe  that  they \noccurred at about the same time is that because both were causing \ncatastrophic  problems  and  it  would  have  been  unlikely  for  him  to \nsurvive  very  long  with  either  of  them.  So, extrapolating  back,  we \nthink  that  that – they  occurred  at  the  same  time.  Kyle  is  one  of \nmaybe less than 10 case reports of that that I can find ever and that \ngoes back to some things that came out of Chernobyl even. This is \nrare. I don’t think you can extrapolate the statistical chance that \nthis would occur from those independent numbers. \n \n Dr. Travis also testified about the claimant’s use of PPE as follows: \n\nMcKaughan – H303552 \n \n-14- \nQ Did  Kyle  tell  you  he  was  using  the  proper  protective \nequipment when he was handling these compounds? \n \nA He told me that’s what he told you, but he wasn’t. \n \nQ So he told you he was not using it? \n \nA Correct. \n \nDr.  Travis  is  also  of  the  belief,  as  shown  in  his  deposition  testimony,  that  the  claimant  was \nhandling these chemicals extensively as he was asked about in his deposition as follows: \nQ Okay. Now, when you – in your letter, you suggest that he \nhandled  these  chemicals  extensively.  I  guess  I  just  want  to  ask \nwhat – describe  what  you  mean  by  extensively,  if  you    mean \nanything by that. \n \nA I mean that that was a day in and day out that that was his \njob that he described rolling out on taking the family back home on \nholiday  trips  because  he  had  to  run  somewhere  and  pick  some \nchemicals up and transport them and then go back home  and pick \nthe  family.  But  I  think  it  was – I  think  he  handled  them  a  great \ndeal. \n \nQ But daily or weekly or do you know? \n \nA I don’t know. \n \n When  asked  in  his  deposition  about  any specific herbicides  the  claimant  mentioned  Dr. \nTravis stated, “I don’t recall that at all.” Dr. Travis was also asked about any specific chemicals \nmentioned by the claimant as follows: \nQ Okay.  Your  letter,  your  summary  note,  it  doesn’t  really \nmention any specific chemicals that I can see. You just talk about a \nvariety of toxic chemicals, agents and that kind of thing.  \n \nA Yes, sir. \n \nQ So, do you recall from your notes or discussions with Kyle \nany specific kind of chemical or product? \n \n\nMcKaughan – H303552 \n \n-15- \nA You’re asking me to make a big leap. If you have a list of \n30  chemicals,  herbicides,  pesticides  and  there’s  a  significant \nnumber of them carcinogens, I can’t make a leap as to which one \nwas the carcinogen in question. \n \nQ Well,  my  question  is,  did  Kye  ever  relate  any  specific \nproduct or chemical or herbicide to you? \n \nA Just what was on the list. No, sir. \n \nQ Okay.  Did  he  ever  relate  to  you  any  specific  day  or  time \nwhere  he  felt  like  he  was  exposed  to  any  of  those  specific \nchemicals or herbicides? \n \nA No, sir.  \n \n The list referred to by Dr. Travis is found at Claimant’s Exhibit 1, pages 88 and 89. \nApparently,  both  lists  were  marked  and  written  upon  by  Dr.  Travis.  His  marks  were to note \nsubstances that were carcinogens. The claimant’s widow also gave testimony about the list as \nfollows: \nQ All right. And at some point did you take a list of chemicals \nto Dr. Travis? \n \nA I did because the very first thing he asked us, the very first \nthing he asked when we walked into the exam is, “Do you work \nwith chemicals?” \n \nQ And where did you get the list of chemicals? \n \nA From a manifest from the pickups from the HAZMAT team \nthat  comes  out  and – Heritage.  They  always  have  to  sign  a \nmanifest  and  it  is  when  they  pick  up  and  the  weight  of  the \nchemicals and Kyle would have to sign off on it. \n \nQ All right. So on Page 88 of the Claimant’s Medical Exhibit, \nwe have this list signed here by Dr. Travis? \n \nA Uh-huh. \n \nQ Is that the list you gave him? \n \n\nMcKaughan – H303552 \n \n-16- \nA It is. \n \nQ And Page 89, is that also what you gave him? \n \nA Yes. \n \n It  is  certain  from  Dr.  Travis’  summary  note  and  deposition  that  he  believes some \nsubstances the  claimant  was  exposed  to  through  his  work  with  the  respondent  caused  his  two \nexceedingly rare simultaneous cancers.  \nQ Doctor,  in  your  opinion,  are  there  any  other  things  or \ncauses that could have caused Kyle’s cancers? \n \nA I think that having two separate clones, two separate B-cell \nclones  that  likely  become  malignant  in  close  proximity  to each \nother,  that  it  was  some  toxin  exposure  that  led  to  that.  I  think  it \nwould be unlikely to find a cause where you would support that it \nwas just a de-novo occurrence. \n \nQ So,  is  the  answer  to  the  question,  no?  You  don’t  think \nanything else could have caused it? \n \nA I think it was toxin. \n \n The  respondent  in  this  matter  paid  for  and  received  a  medical  opinion  dated  December \n16,  2023,  from  Henry  F.  Simmons,  Jr.,  MD,  Ph.D.,  who  is  a  toxicologist  and  physician  at \nUAMS. Dr. Simmons’ report can be found at Respondent’s Exhibit 1, pages 1-14. Following is a \nportion of Dr. Simmons’ report which includes his disagreement with Dr. Travis’ views on \ncausation as follows: \n4.  At  the  request  of  Mr.  Robert  Montgomery,  an  attorney  for  the \nArkansas    Insurance    Department,    I    reviewed    the    following \nmaterials  related  to  Mr.  Kyle  McKaughan  who  died  of  multiple \nmyeloma and chronic lymphocytic leukemia in 2023: \n a. Medical records of Dr. Patrick Travis \nb.   Depositions   of   Dr.   Patrick   Travis   and   Mr.   Kyle \nMcKaughan \n c. Summary Letter of Dr. Travis dated 11/3/2023 \n d. Email from Mr. Robert Montgomery dated 1/4/2024 \n\nMcKaughan – H303552 \n \n-17- \ne.  Statements  of  coworkers  Lance  Maples  and  Vaughn \nSkinner \n f. U of A SAREC 2023 Pesticides Used in Season (a list) \n \n5. My purpose in so doing was to evaluate toxicological causation \nopinions rendered by Dr. Travis regarding Mr. McKaughan’s death \nfrom my standpoint as a medical toxicologist. In brief, I concluded \nthat the etiology of his concomitant multiple myeloma and chronic \nlymphocytic leukemia is unknown and that to link it to workplace \nchemical  exposure  as  described  in  the  materials  that  I  reviewed  is \nspeculation.  Opinions  that  I  hold  within  a  reasonable  degree  of \nmedical and toxicological probability appear as impressions in the \nparagraphs that follow. However, if more data becomes available, I \nreserve the right to amend my views to the extent it warrants. \n \nBackground \n6.  Mr.  Kyle  McKaughan  was  60  years  old  when  he  began  feeling \nbad  in  January  of  2023  and  was  found  to  have  hypertension, \nelevated  calcium,  hypertension,  renal  dysfunction  and  anemia.  By \n2/14/23  he  had  been  referred  to  an  oncologist,  Dr.  Patrick  Travis, \nwith  a  newly  diagnosed  very  unusual,  dual  lgG  lamda  multiple \nmyeloma   and   B-cell   type   chronic   lymphocytic   leukemia.   A \ncomprehensive  evaluation  was  undertaken  to  identify  existing \ncomplications  and  choose  an  optimal  therapy.  Unfortunately,  his \ndisease was aggressive and he died in December of 2023. \n \n7.  His  past  medical  history  included  no  significant  medical  or \nsurgical  diseases.  He  was  a  nonsmoker,  but  he  had  drunk  some \nalcohol and he had used  smokeless tobacco products for 40 years. \nHis  father  had  had  lung  cancer.  He  had  never  served  in  the \nmilitary.    His    occupational    history    included    predominately \noccupational safety roles since the early 90s excluding a couple of \nyears in the insurance business. In 2011 he began working for the \nUniversity of Arkansas. \n \n8. Based upon his deposition Mr. McKaughan held two positions at \nthe  University  of  Arkansas  related  to  environmental  health  and \nsafety  that  in  part  included  work  in  areas  where  chemicals  were \nstored or used. During the first, from some point in 2011 to 2014, \nhe  monitored  research  laboratories  to  assure  proper  labeling  and \nstorage  of  chemicals  as  well  as  compliance  by  personnel  with  use \nof proper protective equipment (PPE). If a chemical spill occurred \nin  a  laboratory  setting,  he  would  clean  it  up  using  appropriate \ntechnique  and  dispose  of  waste  the  right  way  as  he  ordinarily  had \nall the proper PPE with the exception of one occasion. \n\nMcKaughan – H303552 \n \n-18- \n \n9.  At  that  time,  personnel  discovered  five  or  six  cylinders  of \nmethyl bromide, an outdated soil fumigant. When one was noted to \nbe  leaking,  Mr.  McKaughan,  based  on  his  training  and  expertise, \nrealized that he did not have the proper PPE. However, he acquired \nit, closed the leaking valve, and completed the cleanup. \n \n10. By 2014, Mr. McKaughan, according to his job description had \nbecome     an     Agricultural     Safety     Officer     with complex \nresponsibilities  related  to  training  others  (40%),  compliance  with \nregulations  (40%),  and  on-site  activities  (20%).  The  last  included \ninvestigation    of    work-related    accidents    and    inspection    of \nmachinery  around  the  state.  A  coworker,  Vaughan  Skinner,  who \nworked  with  him  for  years  wrote  that  although  Mr.  McKaughan \nsometimes   transported   stored   pesticides    and   chemicals   for \ndisposal,  he  never  saw  him  handle  them  or  “do  anything \ninappropriate regarding safety.” Another coworker, Lance Maples, \nwho    worked    with    Mr.    McKaughan    for    about    10    years \npredominantly in indoor settings described him as one who “taught \nand followed proper safety procedures in all areas of his job to his \n[own] and others utmost safety.” \n \n11. In his deposition, Mr. McKaughan testified that probably once \nper   month,   he   would   travel   from   his   Fayetteville   office   [as \nAgricultural  Safety  Officer]  to  other  stations  to  do  training  and \nwould  sometimes  transport  unwanted  chemicals  back  to  a  storage \nroom  in  Fayetteville  for  pickup  by  a  disposal  service.  However, \npesticides  and  herbicides  “especially”  were  never hauled  in  the \ncab.  Although  these  agents  were  usually  taped  up  or  sealed  in \nboxes to prevent their rolling in the back of the truck, he would do \nit himself if others were  not available.  It should be noted that Mr. \nMcKaughan did not make these excursions in his own vehicle. \n \n12.  In  a  summary  letter  dated  11/3/2023,  Dr.  Travis  noted  that \n“After visiting with Mr. McKaughan extensively and reviewing the \nchemical  exposures  he  has  had,  it  is  clear  that  [his  diagnosis]  was \nsecondary to work exposure leading to his malignancies.” In the \ndeposition, Dr. Travis strongly emphasized that this condition was \nso rare that it represented only “one of maybe less than ten case \nreports” in presumably the world’s oncology literature extending \nback  to  the  Chernobyl  affair  of  1986!  [17]  [Chernobyl  of  course \nwas  a  radiation  disaster  in  Ukraine  in  1986.]  In  further  support  of \nhis view, he noted in his summary letter that some people exposed \nto  Agent  Orange,  a  herbicide  used  in  Vietnam;  to  water  at  Camp \nLejeune,  a  military  base  in  North  Carolina;  and  to  Roundup,  a \n\nMcKaughan – H303552 \n \n-19- \nherbicide  containing  glyphosate  had  developed  multiple  myeloma \nor chronic lymphocytic leukemia but he did not say simultaneously \nin those cases. \n \nImpressions \n13.  I  have  great  respect  for  Dr.  Travis’  clinic  assessment  and \nmedical   care   of   Mr.   McKaughan.   However,   those   areas   are \nindependent of toxicological causation analysis. In my opinion the \ncause of Mr. McKaughan’s cancer is unknown, particularly given \nthat his case is “one of maybe less than ten case reports” in the \nworld’s oncology literature as referenced by Dr. Travis extending \nback to Chernobyl in 1986 which involved radiation as opposed to \nchemical exposure. \n \n14.  Toxicological  insults  including  cancers  begin  with  exposure. \nHowever,   exposure   is   only   an   opportunity   for   absorption. \nFurthermore,  absorption  or  uptake  must  be  sufficient  to  exceed \nbody defenses and cause irreparable harm. [threshold] In addition, \nexperience  as  reported  in  the  literature  must  sufficiently  support \nthe   conclusion   that   a   strong   connection   exists   between   the \ncompound   and   the   observed   disease.   [literature   support]   The \ndisease  should  also  occur  at  such  a  time  that  the  exposure  is \ntemporally eligible to be its cause. Finally, within reason, it should \nbe  possible  to  exclude  other  potential  causes  of  the  disease. \n[differential diagnosis] \n \nDr.  Travis  cannot  identify  the  “carcinogen  in  question”  or \ndegree of exposure.  \n15a.  Although  Dr.  Travis  once  had  access  to  a  list  of  perhaps  30 \nchemicals,  by  the  time  of  his  deposition  he  was  unable  to  name  a \nsingle one and specifically could not identify the “carcinogen in \nquestion.” [26] He also did not list any specific compounds in his \n11/2/2023  summary  letter.  Even  had  he  been  able  to  name  a \ncompound  or  compounds,  he  would  still  have  been  unable  to  say \nwhen  the  patient  was  exposed  or  for  how  long.  Accordingly,  he \nwould  still  not  know  how  much  of  any  specific  chemical  the \npatient  absorbed,  much  less  if  it  was  enough  to  cause  any  injury. \nThus, from the beginning the answers to questions about exposure, \nabsorption  and  exceeding  thresholds  were  never  answered  by  Dr. \nTravis. \n \n15b. There is certainly no evidence that any of Mr. McKaughan’s \nbody  fluids  or  tissues  were  ever  shown  to  be  contaminated  with \nany   chemical   present   at   any   site   where   the   patient   worked. \nHowever,  it  must  be  noted  that  such  studies  would  not  be  part  of \n\nMcKaughan – H303552 \n \n-20- \nany  routine  clinical  investigation  and  the  time  to  conduct  them \nwould have passed by the time of his diagnosis. \n \n16.  Of  course,  Mr.  McKaughan  did  have  exposures  to  various \nworkplace   chemicals   as   described   in   his   job   description,   his \ndeposition  and  by  his  coworkers,  but  he  had  been  trained  to  deal \nwith them and based upon his testimony he did so in an appropriate \nway  which  would  limit  absorption  and  reduce  the  potential  for \ntoxicity at the job site. \n \n17.  The  use  of  appropriate  personal  protective  equipment  or  PPE \nby  design  limits  the  absorption  of  chemicals  that  occurs  with \nexposure.  Dr.  Travis,  when  asked  if  someone  could  safely  handle \nthe  chemicals  on  the  aforementioned  list  while  wearing  PPE \nanswered, “Likely so.” [23/24] I think it logical that a long-time \nsafety  officer  like  the  patient  should  be  considered  protected.  Dr. \nTravis’  letter  of  11/02/2023,  unlike  his  deposition  [24],  says \nnothing about Mr. McKaughan failing to wear PPE when handling \nchemicals. \n \n18.  Mr.  McKaughan  testified  that  he  not  only  wore  proper  PPE \nwhen necessary but that he would obtain it if he did not have it. As \na  case  in  point,  when  personnel  encountered  an  unusual  material, \nmethyl  bromide,  instead  of  handling  it  unprotected,  he  acquired \nproper PPE first and only then safely shut down the leak. Thus, the \nintensities of any exposure were limited which in turn limited any \nabsorption and any potential effects. \n \n19. Mr. McKaughan’s testimony also does not support Dr. Travis’ \ntestimony  that  his  patient  had  workplace  exposures  to  chemicals \n“day in and day out.” [24] Mr. McKaughan instead testified that he \nmade  trips  to  the  field  probably  on  only  a  monthly  basis  as \nopposed “to day in and day out.” Furthermore, the chemicals he \npicked   for   disposal   during   these   excursions   based   upon   his \ntestimony   were   transported   in   sealed   boxes   in   the   bed   of   a \nuniversity  truck  as  opposed  to  his  private  vehicle.  Once  again, \nreducing   not   only   the   frequency   of   exposures   but   also   their \nmagnitudes in this fashion would be expected to lower his risk. \n \nDr. Travis has insufficient literature to support his assignment \nof causation to Mr. McKaughan’s work. \n20a.  Because  the  case  [near  simultaneous  multiple  myeloma  and \nchronic lymphocytic leukemia] is so “rare” in Dr. Travis’ words, \nrepresenting  perhaps  only  “one  of  maybe  less  than  ten  case \nreports” in the world’s oncology literature dating back to 1986 [38 \n\nMcKaughan – H303552 \n \n-21- \nyears]  its  cause(s)  is  uncertain,  the  time  it  takes  the  disease  to \nappear after an exposure is uncertain, etc. \n \n20b.  For  example,  even  if  Dr.  Travis  had  identified  a  particular \nchemical  which  he  has  not  [26]  and  even  if  he  could  demonstrate \nsignificant  exposure  and  absorption  which  he  cannot,  without \nliterature  establishing  the  casual  connection  between  the  chemical \nand the dual disease he could not make a causal connection.26 \n \n20c.  As  another  example,  even  if  Dr.  Travis  knew  when  the  dual \nmalignancy  developed  which  he  does  not  [19/20]  he  would  still \nhave  to  know  when  the  meaningful  exposure  to  a  toxicant  took \nplace to be sure that it was temporally eligible to be the cause and \nit would take literature to establish that time frame. \n \n20d.  Dr.  Travis  likening  Mr.  McKaughan’s  exposures  as  he \ndescribed  them  to  [32]  unspecified  events  involving  a  defoliant, \nAgent  Orange,  used  in  Vietnam  decades  ago  and  to  contaminants \nin the water supply in Camp Lejeune in North Carolina over many \nyears [32] seems did not resolve any unknowns in my view. \n \nDr. Travis cannot eliminate other causes of Mr. McKaughan’s \ncancer unrelated to his job. \n21a.  Multiple  myeloma  and  chronic  lymphocytic  leukemia  are \nmore  common  with  advancing  age.  [17]  The  patient  was  60  years \nold. \n \n21b. Multiple myeloma and chronic lymphocytic leukemia in some \ncases “clearly” develop without obvious toxin exposure in some \nfashion. [18] \n \n21c. Everyone in the world is exposed to “carcinogens” and it is \n“hard to know what to what degree those things cause cancer.” \n[21,22] \n \n21d. There may be about 36,000 new cases of multiple myeloma in \n2023  [20]  and  in  my  opinion  there  is  little  reason  to  believe  that \nmany had jobs like Mr. McKaughan. \n \n21e.  The  lifetime  risk  of  myeloma  is  0.76%  and  of  chronic \nlymphocytic  leukemia  is  0.39%.  That  is  7.6  and  3.9  people  out  of \n1000  over  a  lifetime  respectively  and  in  a  country  of  300,000,000 \nmillion people that will turn out to be quite a number. \n \n\nMcKaughan – H303552 \n \n-22- \n21f.  How  a  person  actually  “contracts  the  disease”  [multiple \nmyeloma  or  chronic  lymphocytic  leukemia  separately  or  together] \nis unknown. [18] As I interpret this statement, Dr. Travis states that \nthe exact nature of the inciting molecular mechanism of the disease \nremains uncertain. \n \n22. In summary, given the above information, I concluded that Mr. \nMcKaughan’s dual hematologic malignancy cannot be attributed to \nhis    workplace    exposure    within    reasonable    medical    and \ntoxicological  certainty.  A  specific  causal  agent  or  set  of  causal \nagents  cannot  be  identified.  The  steps  Mr.  McKaughan  routinely \ntook  to  protect  himself  as  an  Agricultural  Safety  Officer  appear \nimpressive and effective. The condition as described by Dr. Travis \nis extremely rare. The available literature is insufficient to establish \na causal connection. Alternate causes cannot be excluded. \n \n On February 19, 2024, Dr. Travis authored a letter to “To Whom It May Concern.” \nFollowing is the body of that letter: \nMr.  McKaughan  developed  two  aggressive  B-cell  malignancies. \nThey  were  diagnosed  simultaneously  and  the  speed  with  which \nthey were progressing suggests that they occurred at the same time. \n \nThe  development  of  both  at  the  same  time  makes  an  outside \nexposure  inciting  carcinogenesis  likely.  No  one  else  in  his  family \nor  close  proximity  developed  a  malignant  process.  Therefore,  it \nwould not be an exposure common to the household. \n \nMr.  McKaughan  worked  with  a  series  of  toxic  chemicals  at  the \ntime  of  development  of  these  malignancies.  It  is  my  medical \nopinion   that   these   exposures   led   to   the   development   of   his \nmalignancies. \n \nFor many years there was an ongoing battle over cigarettes being a \ncause for lung carcinoma. The questions were raised as to how you \ncould  prove  that  these  patients,  who  smoked,  did  not  have  other \nexposures. Intuitive reasoning and common sense lead us to realize \nthat cigarettes are directly linked to lung cancer long before it was \naccepted as true. \n \n Here,  the  central  question  is  whether  the  claimant  suffered  a  compensable  occupational \ndisease in the form of cancer developed as a result of his employment with the respondent. Those \n\nMcKaughan – H303552 \n \n-23- \ncancers specifically being simultaneous multiple myeloma and chronic lymphocytic leukemia. It \nis without doubt those conditions led to the claimant’s death on December 11, 2023.  \nIn  defining  this  cause  of  action,  Ark.  Code  Ann.  § 11-9-601(e)(1)(A)  (Repl.  2012) \nprovides: \n(A) “Occupational disease”, as used in this chapter, unless the context otherwise \nrequires, means any disease that results in disability or death and arises out of and \nin  the  course  of  the  occupation  or  employment  of  the  employee  or  naturally \nfollows  or  unavoidably  results  from  an  injury  as  that  term  is  defined  in  this \nchapter. \n \nA  causal  connection  between  Claimant’s  job  and  the  disease  must  be  established  by  a \npreponderance  of  the  evidence.   Id.  §  11-9-601(e)(1)(B).    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206  S.W.2d  442  (1947).    In  setting \nparameters concerning such a claim, the statute further reads: \nAn employer shall not be liable for any compensation for an occupational disease \nunless  .  .  .  [t]he  disease  is  due  to  the  nature  of  an  employment  in  which  the \nhazards of the disease actually exist and are characteristic thereof and peculiar to \nthe  trade,  occupation,  process,  or  employment  and  is  actually  incurred  in  his  or \nher  employment.    This  includes  any  disease  due  to  or  attributable  to  exposure  to \nor contact with any radioactive material by an employee in the course of his or her \nemployment[.] \n \nId.  §  11-9-601(g)(1)(A).    An  occupational  disease  is  characteristic  of  an  occupation,  process  or \nemployment where there is a recognizable link between the nature of the  job performed and an \nincreased risk in contracting the occupational disease in question.  Sanyo Mfg. Corp. v. Leisure, \n12  Ark.  App.  274,  675  S.W.2d  841  (1984).    Such  diseases  are  generally  gradual  rather  than \nsudden in onset.  Hancock v. Modern Indus. Laundry, 46 Ark. App. 186, 878 S.W.2d 416 (1994). \n\nMcKaughan – H303552 \n \n-24- \nIf the claimant fails to establish by a preponderance of the evidence any of the requirements for \nestablishing  compensability,  compensation  must  be  denied.   Mikel  v.  Engineered  Specialty \nPlastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). \n Unfortunately,  the  claimant  in  this  matter  passed  away  prior  to  the  hearing.  His \ndeposition was taken prior his death and I find him to be a credible witness. Both parties in this \nmatter focused on the claimant’s use of PPE and the time spent with substances that cause \ncancer. There were witnesses that I have mentioned throughout this opinion and some that I have \nnot mentioned at all, all of which have some word to say about both the claimant’s use of PPE \nand his time spent with carcinogenic substances. After a review of all the testimony in evidence, \nI find that the claimant used PPE the vast majority of the time when it was required. That was the \nessence  of  his  deposition  testimony.  Others  did  observe  him  not  wearing  PPE, but  there  is  no \nevidence  that  he  was  handling  a  specific  substance  that  required  him  to  do  so  at  that  time.  No \nwitness identified a specific substance that required PPE and stated that the claimant wasn’t \nwearing it while handling that specific substance.  \n Mr. McKinney did testify that he was not wearing all the appropriate PPE about half the \ntime  he  saw  him.  However,  within  that  same  statement  he  says  he  was  merely  guessing.  Mr. \nMcKinney never identifies any specific substance or circumstance that the claimant should have \nhad  a  certain  PPE  and  did  not  while  using  any  certain  substance  or  combination  thereof.  Mr. \nMcKinney engaged in speculation and conjecture in his statements about the claimant’s PPE use. \nAll  claims  for  workers'  compensation  benefits  must  be  based  on  proof.  Speculation  and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dept of Correction v Glover, 35 \nArk. @ 32, 812 S.W. 2\nnd\n 692 (Ark. App. 1991); Deana Constr. Co. v Herndon, 264 Ark 791, 595 \nS.W. 2\nnd\n 155 (1979). \n\nMcKaughan – H303552 \n \n-25- \n As  to  the  claimant’s  time  spent  with  cancer  causing  substances,  he  testified  in  his \ndeposition that it was a few days a month that he did so at the satellite locations. However, I am \ncertain  he  spent  some  fair  amount  of  time  doing  so  at  the  main  Fayetteville  location.  The \nclaimant’s supervisor, who took over his toxic disposal job duties during the claimant’s illness, \ntestified  that  it  took  an  average  of  about  10  hours  per  week  to  deal  with  the  chemicals.  The \nclaimant also spent time in the storage shed doing inventory that Mr. McKinney did not do, but I \nthink  Dr.  Travis’  “day  in  and  day  out”  testimony  and  statement  greatly  overestimates  the \nclaimant’s time spent with toxic chemicals. \n The  claimant  has  never  alleged  any  exposure  to  a  certain  or  specific  chemical  or  a \ncombination of chemicals that he believes to have caused his dual cancers. Instead, the case put \nforward  is  that  there  are  lots  of  toxic substances that  he  was  around  and  that  must  have  caused \nhis  dual  cancers.  Not  even  Dr.  Travis  can  identify  any  specific  or  any  combination  of  specific \nsubstances  that  are  shown  to  cause  such  a  rare  cancer  combination  that  the  claimant  had.  Dr. \nTravis’ causation opinion is based upon speculation and conjecture. There is no proof of any \nsubstance or combination of substances for the claimant’s condition. I find the greater weight of \nevidence is that the cause of the claimant’s dual simultaneous cancers is unknown. Dr. Simmons’ \nreport  in  great  detail  supports  that  position.  I  believe  his  expertise  and  analysis  of  the  facts \ndeserves greater weight than that of Dr. Travis, and as such, I find the claimant is unable to prove \nby  a  preponderance  of  the  evidence  that  he  suffered  a  compensable  occupational  disease  in  the \nform of cancer developed as a result of his employment with the respondent. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \n\nMcKaughan – H303552 \n \n-26- \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  14,  2023,  and  contained  in  a  Pre-hearing  Order  filed August  18,  2023,  are  hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained a \ncompensable occupational disease in the form of cancer developed as a result of his employment \nwith the respondent, with his last exposure date of January 27, 2023. \n 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto  medical  treatment  as  he  was  unable  to  prove  his  occupational  disease  in  the  form  of  cancer \ncompensable. \n 4. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto  temporary  total  disability  benefits  as  he  is  unable  to  prove  his  alleged  occupational  disease \ncompensable. \n 5.  The  claimant  has  failed  to  prove his attorney is entitled to an attorney’s fee in this \nmatter. \n 6. The respondent’s issue of lack of notice as a defense is moot. \n 7. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto  benefits  under  A.C.A §11-9-527  as  the  claimant  is  unable  to  prove  that  he  sustained  a \ncompensable occupational disease. \n ORDER \n Pursuant to the above findings and conclusions, I have no alternative but to deny this \n\nMcKaughan – H303552 \n \n-27- \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":56951,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H303552 KYLE MCKAUGHAN, Employee CLAIMANT U OF A DIVISION OF AGRI, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED MAY 23, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Ark...","outcome":"denied","outcomeKeywords":["granted:1","denied:4"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T22:54:39.207Z"},{"id":"alj-H306911-2024-05-23","awccNumber":"H306911","decisionDate":"2024-05-23","decisionYear":2024,"opinionType":"alj","claimantName":"Anthony Robledo","employerName":"Place Services Inc","title":"ROBLEDO VS. PLACE SERVICES INC. AWCC# H306911 MAY 23, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ROBLEDO_ANTHONY_H306911_20240523.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROBLEDO_ANTHONY_H306911_20240523.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H306911 \n \nANTHONY ROBLEDO, EMPLOYEE   CLAIMANT \n \nPLACE SERVICES INC., EMPLOYER RESPONDENT \n \nAMERISURE INSURANCE COMPANY/.INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MAY 23, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is represented by STEVEN R. MCNEELY, Attorney, Jacksonville, Arkansas. \n \nRespondents are represented by KAREN H. MCKINNEY, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  February 7, 2024, claimant filed Form AR-C, alleging a compensable injury on June 24, \n2021. He was represented at the time by Mr. Steven R. McNeely, who remains his attorney of record.     \nOn February 12, 2024,  Ms. Karen McKinney, attorney for respondent, and claimant’s attorney \nfiled a Joint Motion to Dismiss, alleging that claimant pursued his claim of this injury in the State of \nCalifornia.   A hearing on claimant’s Motion to Dismiss was scheduled for May 2, 2024.  Notice of \nthe  scheduled  hearing  was  sent  to claimant  by  certified  mail  at  the  last known address  in  the \nCommission’s file.  The notice was delivered to claimant on March  23,  2024.  Claimant  did  not \nrespond to respondent’s motion and did not appear in person at the hearing on May 2, 2024; claimant’s \nattorney waived his appearance.   \n In  reviewing  the  exhibits  admitted  at  the  hearing,  I find  that  claimant  pursued  a  claim  for \nbenefits for the same injury in the State of California and reached a settlement in that state for this \ninjury.  After my review of the joint motion, the Claimant’s lack of response and failure to attend the \n\nRobledo-H306911 \n \n2 \n \nhearing for the respondent’s motion, as well as all other matters properly before the Commission, I \nfind that respondent’s Motion to Dismiss this claim should be and hereby is granted.  This dismissal \nis pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2202,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306911 ANTHONY ROBLEDO, EMPLOYEE CLAIMANT PLACE SERVICES INC., EMPLOYER RESPONDENT AMERISURE INSURANCE COMPANY/.INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MAY 23, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington ...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:54:41.275Z"},{"id":"alj-H203243-2024-05-22","awccNumber":"H203243","decisionDate":"2024-05-22","decisionYear":2024,"opinionType":"alj","claimantName":"Faith Lawson","employerName":"United Parcel Service, Inc","title":"LAWSON VS. UNITED PARCEL SERVICE, INC. AWCC# H203243 MAY 22, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/LAWSON_FAITH_H203243_20240522.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LAWSON_FAITH_H203243_20240522.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H203243 \n \n \nFAITH LAWSON, \nEMPLOYEE                                                                                                                 CLAIMANT \n                                                                                                           \nUNITED PARCEL SERVICE, INC.,   \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nLM INSURANCE CORPORATION, \nINSURANCE CARRIER                                                                                        RESPONDENT \n  \n \n \n \nOPINION FILED MAY 22, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Texarkana, Miller County, \nArkansas. \n \nThe Claimant, unrepresented/pro se, did not appear at the hearing.   \n \nThe Respondents represented  by the  Honorable David  C.  Jones, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \nA hearing was held on May 14, 2024, in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (Repl. 2012), and/or Arkansas Workers’ Compensation Commission Rule \n099.13.     \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.  No testimony was taken during the dismissal hearing.   \n The record consists of the transcript of the May 14, 2024, hearing and the documents held \nthere.   Admitted into evidence was Commission’s Exhibit 1 consisting of eight (8) pages of forms, \n\nLAWSON – H203243 \n \n2 \n \npleadings, and correspondence from the Commission’s file on the claim; and Respondents’ Exhibit \n1 comprising  of pleadings, correspondence,  unexecuted authorizations, discovery  requests, and \nvarious other forms related to this claim, consisting of forty-nine (49) pages.   \n                                                                    Background \nOn  June  28,  2023,  the Claimant’s former attorney filed with  the Commission a claim \n(AWCC  Claim  No.  H203243) for Arkansas workers’ compensation benefits on  behalf  of  the \nClaimant by  way  of  a Form  AR-C.   According  to  this document, the Claimant provided  the \nfollowing description of her alleged work-related accidental injury: “Claimant was injured during \nthe course and scope of her employment.  Claimant sustained injuries to her back neck, head, left \nankle, right hand, and other whole body.”  Per the Form AR-C, the Claimant requested both initial \nand additional workers’ compensation benefits.  The date of the Claimant’s work-related accident \nis April 26, 2022.    \nThe  respondent-carrier  filed  a  Form  AR-2  with the  Commission on  May 9,  2022, \nconfirming that they were not challenging the claim.  On July 12, 2023, the Respondents’ attorney \nwrote a letter to the Commission advising, among other things, that they had recently been retained \nby the respondent-carrier to represent them in this proceeding.  Counsel for the Respondents said \nthat Respondents accepted this as a compensable claim for the Claimant’s head and right-hand \ninjuries.  However, it was their position that all appropriate benefits had been paid to date.  \nSubsequently, on September 15, 2023, the Claimant’s former attorney sent an e-mail to the \nCommission to enter her formal appearance on behalf of the Claimant.  At that time, counsel also \nrequested a hearing on the merits.  Additionally, the Claimant’s former attorney asserted that on \nJanuary  17,  2023, the  Claimant  sustained  a  second work-related injury (AWCC  Claim  No. \nH301388),  which  was  to  her  lower back  during  and  in the  course  of  her  employment  while \n\nLAWSON – H203243 \n \n3 \n \ndelivering a heavy box.   Therefore, the Claimant’s former attorney requested a hearing on both \nclaims.  However, currently,  the  only  claim  before  me  for  dismissal  is  the  first  claim,  which  is \nAWCC Claim No. H203243, which has an injury date of April 26, 2022.   \nPreviously, the prehearing process was started on both claims.  On October 4, 2023, the \nRespondents’ attorney wrote a letter to the Commission saying that the Respondents were asking \nthat the first claim, (AWCC Claim No. H203243) be dismissed because all appropriate benefits \nhave been paid on that claim.  Respondents’ counsel advised, in relevant part, that approval for the \nrequested back surgery on the second claim/ AWCC Claim No. H301388 should be forthcoming \nbecause the EMG studies showed objective medical findings. \nOn October 5, 2023, the Claimant’s attorney sent an email to the Commission confirming \nthat the Respondents had authorized and approved the surgery that had been recommended for the \nClaimant’s back.  Therefore, the Claimant’s attorney asked for  cancelation  of the  prehearing \ntelephone  conference  scheduled  for  October  16, 2023, and that  both  cases be  returned  to  the \nCommission’s general files.   With there being no objection from the Respondents, this was done. \nConversely, on  February 20, 2024, the Claimant’s attorney filed with the  Commission a \nmotion to withdraw from representing the Claimant on both claims.  On March 20, 2024, the Full \nCommission entered an Order granting the motion.        \n   A few days later on March 25, 2024, the Respondents filed a Motion to Dismiss With or \nWithout  Prejudice on the  above  referenced claim  (AWCC  Claim  No.  H203243)  with an injury \ndate of April 26, 2022.  The Respondents served a copy of the foregoing pleading on the Claimant \nvia US Mail.  In support of their motion for dismissal, the Respondents specifically noted that there \nhas been no activity on the claim since September 2023.   \n\nLAWSON – H203243 \n \n4 \n \nThe Commission sent a letter notice on March 29, 2024, to the Claimant informing her of \nthe Respondents’ motion for  dismissal  of  her  claim.  Said  letter was mailed to  the  Claimant  by \nboth first-class and certified mail.  Per this correspondence, the Claimant was given a deadline of \ntwenty (20) days for filing a written response to the Respondents’ motion to dismiss.  \nInformation received by the Commission from the United States Postal Service shows that \nthey delivered this item to the Claimant on April 5, 2024.  The electronic return receipt bears the \nClaimant’s printed name, as well as her signature.  Moreover,  the letter notice  mailed  to  the \nClaimant via first-class mail has not been returned to the Commission.  \nYet, there has been no response from the Claimant in this regard.  \nSubsequently, on April 19, 2024, the Commission sent a Notice of Hearing to the parties \nletting them know that a dismissal hearing had been scheduled to address the Respondents’ motion \nto dismiss this claim due to a lack of prosecution.  The hearing notice was sent to the Claimant via \ncertified  and  first-class  mail.   Said hearing  was  scheduled  for May 14,  2024, at 10:00 a.m., in \nTexarkana, Arkansas. \nTracking information received by the Commission from the Postal Service shows that on \nApril 22, 2024, they delivered this item to the Claimant’s home.  The Claimant signed the receipt \nfor proof of delivery of this item.  Similarly, the notice sent to the Claimant via first-class mail has \nnot been returned to the Commission.    \nYet, there was no response from the Claimant.    \n On May 14, 2024, a dismissal hearing was in fact conducted on the Respondents’ motion \nfor dismissal of this claim as scheduled.  The Claimant did not appear at the dismissal hearing.  \nHowever, the Respondents appeared through their attorney.  \n\nLAWSON – H203243 \n \n5 \n \nCounsel for the Respondents asserted that the Claimant has failed to promptly prosecute \nthis claim for workers’ compensation benefits.  The Respondents’ attorney argued, among other \nthings, that there has been no attempt on the part of the Claimant to move forward with a hearing \non this claim since September of 2023.  Therefore, counsel asked that this claim be dismissed due \nto  a  failure  to  prosecute, with  or without prejudice, because the Claimant  has  not  requested  a \nhearing within six months after her last request for a hearing.  Counsel also said that all appropriate \nbenefits  have been paid  on  this  claim.    Of  note,  counsel  for  the  Respondents  indicated  that  the \nClaimant has another ongoing claim that is not part of this current dismissal action.  As previously \nstated, that second claim was for an injury to the Claimant’s back, which occurred on January 17, \n2023.  That claim is of record with the Commission as AWCC Claim No. H301388.   \nThe evidence before me proves that the Claimant has failed to promptly prosecute her claim \nfor workers’ compensation benefits.  In that regard, the Claimant has not requested a hearing since \nher former attorney requested a hearing on September 12, 2023, which was more than six months \nago.   Of significance,  the Claimant did  not  appear  at  the  hearing  to  object  to  her  claim  being \ndismissed, and she has not responded to the notices of this Commission, despite having received \ndelivery of  them.   Under  these  circumstances,  I  am  compelled  to  find  that  the  evidence \npreponderates  that  the  Claimant  has failed  to  prosecute  her claim for workers’ compensation \nbenefits.  Therefore, per Ark. Code Ann. §11-9-702 and Rule 099.13 of this Commission, I find \nthat this claim should be and is hereby respectfully dismissed, without prejudice to the refiling of \nit within the limitation period specified by law.   \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n\nLAWSON – H203243 \n \n6 \n \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The  Claimant  has  not  requested  a  hearing  since  her former attorney \nrequested a hearing in September of 2023, which was more than six months \nago.   Hence,  the evidence  preponderates  that  the  Claimant has  failed  to \nprosecute her claim for workers’ compensation benefits based upon  the \nrelevant provisions of the specified statute and Rule of this Commission.       \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby  granted, without  prejudice,  per  Ark. Code  Ann. §11-9-702,  and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \nORDER \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. 11-9-702, and Arkansas Workers’ Compensation \nCommission  Rule 099.13, without  prejudice, to  the  refiling  of it, within  the limitation  period \nspecified by law.  \n \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":11650,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H203243 FAITH LAWSON, EMPLOYEE CLAIMANT UNITED PARCEL SERVICE, INC., EMPLOYER RESPONDENT LM INSURANCE CORPORATION, INSURANCE CARRIER RESPONDENT OPINION FILED MAY 22, 2024 Hearing held before Administrative Law Judge Chandra L. Black, in Texarkana, Miller C...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":["back","neck","ankle"],"fetchedAt":"2026-05-19T22:54:37.027Z"},{"id":"full_commission-H301211-2024-05-21","awccNumber":"H301211","decisionDate":"2024-05-21","decisionYear":2024,"opinionType":"full_commission","claimantName":"Wesley Givens","employerName":"J.E.L. Enterprises, LLC","title":"GIVENS VS. J.E.L. ENTERPRISES, LLC AWCC# H301211 MAY 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Givens_Wesley_H301211_20240521.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Givens_Wesley_H301211_20240521.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H301211 \n \nWESLEY C. GIVENS, \nEMPLOYEE \n \nCLAIMANT \nJ.E.L. ENTERPRISES, LLC, d/b/a PLANT \nSERVICES OF NORTH LITTLE ROCK, \nEMPLOYER \n \nRESPONDENT \nAUTO OWNERS INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 21, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE RANDY P. MURPHY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJanuary 8, 2024.  The administrative law judge found that the claimant \nfailed to prove he sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission affirms the administrative law \njudge’s finding.  The Full Commission finds that the claimant was not \nperforming employment services at a time when the alleged physical \ninjuries were inflicted.      \nI.  HISTORY \n\nGIVENS - H301211  2\n  \n \n \n Wesley Craig Givens, now age 63, testified that he became \nemployed with the respondents, Plant Services, in 2016.  Mr. Givens \ndescribed his job for the respondent-employer:  “It was to maintain and take \ncare of plants in offices, homes, buildings, help install plants, pull out bad \nplants, unload trucks.”     \nThe record includes a series of Plant Services “Daily Logs” \napparently submitted by the claimant beginning July 20, 2022.  The Daily \nLogs included listings of an Account, Time-In, Time-Out, Start Mileage, and \nEnd Mileage.  The record indicates that the last Daily Log submitted by the \nclaimant was dated December 6, 2022.   \nThe parties stipulated that the employment relationship existed at all \npertinent times, including December 15, 2022.  The claimant testified on \ndirect examination: \n Q.  What was going to be your route on December 15\nth\n, 2022? \nA.  I was starting at Park Plaza doing the plants there, then I \nwas gonna leave Park Plaza and go to Corky’s on Bowman, \nand then I was going to Farm Bureau, and then I was going to \nParker Lexus right around the corner.... \nQ.  Now, where was the first place that you stopped on \nDecember 15\nth\n, 2022. \nA.  Park Plaza....I have a little wagon, and I have a – a \ncontainer, a plastic container that I fill up with water, and I had \nto take it out to the car, unload, put everything away, then I \nhave to come back into the office to sign out because you \nhave – it was the last thing you did.  Then I went out to the \ncar, got into the car, filled out my time at the mall that was on \nmy clipboard, and I pulled out going towards Markham. \nQ.  Okay.  Now, were you in a company car or were you in \nyour own personal vehicle? \n\nGIVENS - H301211  3\n  \n \n \nA.  No, I was in a company car.   \nQ.  Who owns that car? \nA.  JEL Enterprise Plant Service.   \nQ.  And where were you headed? \nA.  I was headed to Corky’s on Bowman. \nQ.  Were you headed to Corky’s to eat lunch or were you \nheaded to Corky’s to take care of their plants? \nA.  To do their plants.  I had to be there – I had to be there \nbefore 10:00 or 10:15 to give me enough time, ‘cause people \nstart coming in at 10:30.   \nQ.  Okay.  What happened on that route? \nA.  I pulled out and made a right turn onto West Markham.  I \ncame up to a red light and I stopped.  I was in the second lane \ngoing west.  The light was red.  A lady pulled up in the turn \nlane, and she rolled down the window and she yelled.  I had to \nopen my window and ask her what she needed, and she said, \n“I’m runnin’ late.  Can I make a turn in front of you?”  I looked \nto the right and I looked to the left and behind me, and there \nwas nobody coming, so I said, “Sure, go ahead.”  So I let her \ngo in front of me.  After she had met the turn, I had just started \nhittin’ the gas and all of a sudden I saw this person coming to \nme from the far left lane, and she had turn – I thought she was \ngoing through and she just all of a sudden swerved her car \nand came right at me....I was facing west, and I got spun \naround and I was then facing east.... \nQ.  What happened to your body on the inside of that vehicle \nwhen the collision occurred? \nA.  I – she hit me on the driver’s door and the back seat doors.  \nI held onto the steering wheel and I hit the passenger door.  I \nslung across – I hit on the console, the stuff that I had on the \nseat, and I hit the door on the other side.... \nQ.  Did anyone other than the paramedics and the police \nofficers come to the scene of the accident that you know of? \nA.  Um, Jane Lanning and Wanda Yarber, they came and \ncleaned out the car.   \nQ.  At the scene of the accident? \nA.  Aft – yes.  After I had been taken to the – to the hospital.   \nQ.  Okay.  How did Jane know that you’d been in an accident? \nA.  I sent – we have a group text between Jane, Teresa and \nmyself, and I sent her a text.   \nQ.  Okay.  What did you have inside that vehicle? \n\nGIVENS - H301211  4\n  \n \n \nA.  I had my water equipment.  I had bought groceries and my \ngroceries were in the car, because the one paramedic brought \nan orange back ‘cause it was my breakfast.   \nQ.  Did you have your paperwork that you would fill out to turn \nin –  \nA.  Yes. \nQ.  – for your –  \nA.  All my – all my daily log paperwork was in the car.  I had \nstuff in the doors, this and that, and stuff got wet. \nQ.  Okay.  So the Daily Log that was in your vehicle that you \nfill out to show where you’ve been –  \nA.  Correct. \nQ.  – was no longer in your possession? \nA.  No.... \nQ.  So you never made it to Corky’s? \nA.  No.   \n    \nA Metro EMS Ambulance Patient Care Record dated December 15, \n2022 indicated that an ambulance was On Scene at approximately 9:58 \na.m.: \n62 y/o m cc of neck pain.  Pt was involved in a two car MVC.  \nPt was a restrained driver of a small SUV.  Pt was struck on \nthe driver side causing moderate damage to the car.  The Pt \nstated that he was driving around 30mph.  Pt stated that his \nneck hurts.  Pt had no other complaints or obvious injuries.  Pt \nhad all SMC’s intact.  A C-collar was placed on the Pt.  The Pt \nwas assisted and secured to the cot.  Treatment and \nassessment times are approx.  Pt was transported to SVI LR.  \nPt care turned over the ER staff.   \n \n An x-ray of the claimant’s left shoulder was taken on December 15, \n2022 with the findings, “No fracture is identified.  No dislocation is identified.  \nNo arthritis is noted.  No suspicious periosteal reaction or unexpected \nforeign body is seen.”  A CT of the claimant’s cervical spine was taken on \nDecember 15, 2022 with the impression, “There is some degenerative \n\nGIVENS - H301211  5\n  \n \n \nchange of the cervical spine but no fracture or subluxation.”  A CT of the \nclaimant’s lumbar spine was taken on December 15, 2022 with the \nimpression, “Advanced degenerative change of the lumbar spine as \ndiscussed above but no fracture or subluxation.”   \nAn emergency physician diagnosed “Cervical sprain” on December \n15, 2022 and it was noted, “The patient presents following motor vehicle \ncollision.  The onset was just prior to arrival.  The Collision was passenger \nside impact.  The patient was the driver....Location:  back.  The degree of \npain is minimal.”  The claimant was discharged to Home and was \nprescribed medication.  The claimant testified that he did not return to work \nfor any employer after the December 15, 2022 motor vehicle accident. \nThe respondents’ attorney cross-examined the claimant: \nQ.  Now you’ve confirmed with your attorney that you never \nreported – formally reported a workers’ compensation claim \nwith Jane Lanning. \nA.  No.   \nQ.  Okay.  And you never asked Jane Lanning or the workers’ \ncomp carrier to provide any type of medical; you did that on \nyour own. \nA.  Correct.   \nQ.  Okay.  Now you, of course, went to the emergency room \nby ambulance after the accident? \nA.  Yes.... \nQ.  Jane and Wanda also came to the emergency room at St. \nVincent’s, correct? \nA.  Yes.... \nQ.  Did you tell Jane and Wanda that you were done for the \nday and you were going home? \nA.  Not that I remember.   \nQ.  Okay.  Could you have said that to them at that time? \n\nGIVENS - H301211  6\n  \n \n \nA.  I might’ve but I cannot remember it. \nQ.  Okay.  You just don’t remember? \nA.  I don’t remember.... \nQ.  Now let’s talk about your route with Park Plaza Mall.  You \nwere there [on] December 15? \nA.  Yes. \nQ.  Okay.  I don’t think anybody’s disputing that you were \nthere at Park Plaza Mall on December 15, just for the record, \nand you had serviced that account and had completed your \nwork there when the accident happened. \nA.  Yes.   \n \n The claimant was transported via ambulance to Baptist Health \nMedical Center on December 19, 2022.  The claimant complained of \nGeneralized Weakness and Abdominal Pain.  Physical examination at that \ntime showed “Right arm diffuse tenderness and swelling.”  An MRI of the \nclaimant’s cervical spine was taken on December 19, 2022: \n1.  There is no acute displaced fracture or gross \nmalalignment.  There is mild endplate stress response across \nthe C5-6 level again without acute displaced fracture. \n2.  There are degenerative changes across the C5-6 level with \nmild canal narrowing but no cord compromise.  There is \nmoderate to severe right foraminal narrowing. \n3.  There is bulging with mild canal narrowing at the C6-7 level \nwithout cord compromise.  There is mild to moderate bilateral \nforaminal narrowing left greater than right.   \n \n A CT of the claimant’s neck was taken on December 19, 2022 and \nthe findings included, “MARROW:  There is no pathologic marrow signal \nintensity.  There is mild endplate stress response and edema across the \nC5-6 level without acute displaced fracture.”  It was reported on December \n19, 2022 that the CT of the claimant’s cervical spine showed “No evidence \n\nGIVENS - H301211  7\n  \n \n \nof acute fracture or subluxation.”  A CT of the claimant’s head showed “No \nacute intracranial abnormality.”  An x-ray of the claimant’s right humerus \nshowed “No fracture.”  The claimant was diagnosed with “Motor vehicle \ncollision, initial encounter.  Strain of right shoulder, initial encounter.”     \nA note was written at Parker Cadillac on January 18, 2023 indicating, \n“We have not seen Wes Givens with The Plant Services for the month of \nDecember, taking care of the plants.” \nAn x-ray of the claimant’s cervical spine was taken at Cabot \nEmergency Hospital on January 26, 2023 with the impression, “Slightly \nlimited exam despite swimmer’s view.  Degenerative disc disease is seen at \nC5-C6.  No definite vertebral body compression fracture.  Straightening of \nnormal cervical lordosis may be secondary to muscle spasm.”   \nAn MRI of the claimant’s right shoulder was also taken on January \n26, 2023, with the following impression: \n 1.  No fracture or dislocation of the right shoulder. \n2.  Osteoarthritis of the acromioclavicular and glenohumeral \njoints noted.   \n \n Additionally, an x-ray of the claimant’s lumbar spine was taken on \nJanuary 26, 2023 with the following impression: \n1.  Minimal superior endplate height loss with slight anterior \nwedging at L1, L2, and L3.  No posterior cortex height loss or \nevidence of any retropulsion. \n2.  Mild posterior disc height loss at L2/L3 and L5/S1 along \nwith L4/L5 and L5/S1 facet hypertrophy. \n3.  Trace levoscoliosis.  No significant listhesis.   \n\nGIVENS - H301211  8\n  \n \n \n \n An MRI of the claimant’s brain was taken on February 3, 2023, with \nthe following impression: \n1.  Multiple T2 and FLAIR hyperintense foci in bilateral frontal, \nparietal, parieto-occipital white matter and pons, suggestive of \nUBOs (unidentified bright object) non-specific lacunes.  \nPeriventricular white matter hyperintensity.  These can be \nseen in patients with chronic small vessel ischemic disease or \ncan be seen in patient with headaches.  Please correlate \nclinically. \n2.  Mild cerebral and cerebellar atrophy. \n3.  Partially empty Sella. \n4.  Mild tortuosity of the cavernous portions of both the \ninternal carotid arteries. \n5.  Incidental note is made of minimal mucosal thickening in \nbilateral mastoid air cells.   \n6.  Mild mucosal thickening in ethmoid air cells and maxillary \nsinuses.   \n \n An MRI of the claimant’s right shoulder was taken on February 3, \n2023: \nHISTORY:  Patient was involved in a motor vehicle accident \non 12/15/2022.... \nIMPRESSION:  1.  Partial tear involving the subscapularis \ntendon. \n  2.  Partial tear involving the supraspinatus tendon. \n3.  Mild to moderate tendinosis involving the rest of the \nsupraspinatus tendon.   \n  4.  Tendinosis of infraspinatus tendon. \n5.  Suspicious tear involving the posterior-superior labrum.  \nHowever, please correlate clinically as lack of significant \ndiffusion limits evaluation of the labrum. \n6.  Mild thickening of the inferior gleno-humeral ligament, with \nhyperintense signal.  This can be due to edema or can be due \nto adhesive capsulitis.  Please correlate clinically. \n7.  Mild fluid in subacromial – subdeltoid and subcoracoid \nbursae and also along the biceps tendon. \n\nGIVENS - H301211  9\n  \n \n \n8.  Hyperintense signal involving the biceps tendon, \nsuggestive of biceps tendinosis. \n9.  Moderate changes of osteoarthritis in the gleno-humeral \njoint. \n10.  Mild synovial effusion. \n11.  Moderate degenerative changes in the acromio-clavicular \njoint, with hypertrophic spurs.   \n12.  Subtle altered marrow signal intensity along the articular \nmargins of the acromio-clavicular joint.  This can represent \ndegenerative or traumatic edema. \n13.  Mild lateral downsloping of the acromion.   \n14.  Subtle hyperintense signal involving the infraspinatus \nmuscle.  This can represent mild contusion/edema.   \n \n An MRI of the claimant’s lumbar spine on February 3, 2023 showed \nabnormalities including a herniation of the L3-4 disc.   \n A physician’s assistant performed a right shoulder steroid injection \non February 3, 2023.   \n The record indicates that Dr. Chandrakanth Boddu performed a \ncervical epidural injection and lumbosacral epidural injection on February \n10, 2023. \n Dr. Boddu informed the claimant on February 13, 2023, “I am writing \nconcerning your care and treatment that has been provided thus far.  It is \nmy belief the injury you sustained was proximately caused by the motor \nvehicle accident occurring on December 15, 2022.”   \n Dr. Boddu performed a “Cervical and lumbar radiofrequency ablation \nof medial branch” on February 23, 2023.   \n\nGIVENS - H301211  10\n  \n \n \n Dr. Boddu performed right shoulder surgery on or about March 31, \n2023:  “1.  Debridement of synovitis.  2.  Debridement of subacromial bursa.  \n3.  Debridement of the cuff tear.  4.  Subacromial decompression.  5.  \nAcromioclavicular joint distal clavicle excision.”  The post-operative \ndiagnosis was “1.  Synovitis.  2.  Subacromial bursitis.  3.  Possible partial-\nthickness cuff tear on the bursal surface.  4.  Impingement syndrome.  5.  \nPosttraumatic acromioclavicular joint injury.”      \nA pre-hearing order was filed on August 2, 2023.  According to the \npre-hearing order, the claimant contended, “The claimant contends that on \nDecember 15, 2022, he was involved in a motor vehicle accident (MVA) \nwithin the course and scope of his employment.  The claimant contends he \nwas driving his employer’s vehicle when the MVA occurred, and he \nsustained injuries to his head, neck/cervical spine, lower back/lumbar spine, \nright shoulder, and right knee as a result of the subject MVA.  The claimant \nfurther contends the respondent-employer, J.E.L. Enterprises (JEL), first \nrefused to file a claim, so the claimant filed a Form AR-C on February 23, \n2023, and thereafter the respondents denied the claim in its entirety.  The \nclaimant contends he was forced to obtain his own medical treatment which \nincluded an MRI of his lumbar spine which revealed disc herniations at L3-\n4, L4-5, L5-S1; an MRI to his right shoulder which revealed tears; an MRI of \nhis brain which revealed a diffuse traumatic brain injury; and an MRI of his \n\nGIVENS - H301211  11\n  \n \n \ncervical spine which revealed a disc herniation at C5-6.  The claimant \ncontends he has undergone a rhizotomy for his cervical spine and his \nlumbar spine injuries; an arthroscopic surgery to his right shoulder; he has \nbeen diagnosed as having post-concussion syndrome; and his doctor has \nrecommended he undergo an anterior cervical discectomy and fusion \n(ACDF) at C5-6, all as a direct result of the subject MVA.  Therefore, the \nclaimant contends he is entitled to payment of his medical and related \nexpenses; to TTD benefits from December 16, 2022, through a date yet to \nbe determined; and that his attorney is entitled to a controverted attorney’s \nfee.  The claimant reserves the right to plead further upon the completion of \nnecessary and appropriate investigation and discovery; and specifically \nreserves any and all other issues for future determination and/or litigation.”   \n The parties stipulated that the respondents “have controverted this \nclaim in its entirety.”  The respondents contended that the claimant “was not \nperforming ‘employment services’ at the time of the subject MVA.  The \nrespondents further contend the claimant cannot meet his burden of proof \npursuant to the Act in demonstrating he sustained any compensable injuries \nwithin the course and scope of his employment with JEL.  The respondents \nreserve the right to plead further upon the completion of necessary and \nappropriate investigation and discovery; and specifically reserve any and all \nother issues for future determination and/or litigation.”   \n\nGIVENS - H301211  12\n  \n \n \n The parties agreed to litigate the following issues: \n1.  Whether the claimant sustained compensable injuries \nwithin the meaning of the Arkansas Workers’ Compensation \nAct (the Act) to his head, neck/cervical spine, lower \nback/lumbar spine, right shoulder, and right knee, on \nDecember 15, 2022.   \n2.  If the claimant’s alleged injuries are deemed compensable, \nto extent to which he is entitled to medical and indemnity \nbenefits. \n3.  Whether the claimant’s attorney is entitled to a \ncontroverted fee on these facts.   \n4.  The parties specifically reserve any and all other issues for \nfuture litigation and/or determination.   \n \n Dr. Boddu performed low back surgery on August 17, 2023:  “L3-4 \nand L4-5 central canal and bilateral lateral recess decompression.”  The \npost-operative diagnosis was “L3-4 and L4-5 stenosis.  MRI shows L3-4 \nmild to moderate bilateral lateral recess stenosis and mild central canal \nstenosis; the L4-5 shows moderate bilateral lateral recess stenosis and \nmoderate central canal stenosis.”   \nA hearing was held on October 10, 2023.  The respondents’ attorney \nexamined the company owner, Jane Ellen Lanning: \nQ.  From a personal standpoint, how would you describe your \nrelationship with Wesley Givens over the past 30 to 35 years? \nA.  We’ve been the best of friends.... \nQ.  Now I want to talk about Mr. Givens’ route.  Are those \nreflected on the Daily Log sheets?   \nA.  Yes, they are.... \nQ.  Did you ever receive any Daily Log sheets after December \n6? \nA.  No.   \nQ.  Did you turn in all of the Daily Log sheets to my law firm \noffice? \n\nGIVENS - H301211  13\n  \n \n \nA.  Yes.... \nQ.  Have you ever seen the Daily Log sheets after December \n6? \nA.  I have not....   \nQ.  Did you have a conversation at the hospital with Mr. \nGivens? \nA.  Yes.... \nQ.  And did Mr. Givens make any statement about where he \nhad been or where he was going or what his activities were? \nA.  He said – he said that he was leaving Park Plaza to go \nhome and out of nowhere boom, this lady just hit him.... \nQ.  You don’t know whether he intended to stop anywhere \nbefore he went home?   \nA.  I have no idea. \nQ.  Okay.  He didn’t say anything about going to work any \nadditional accounts, did he? \nA.  No.   \nQ.  Okay.  Now, you’re familiar with the Daily Logs and the \nroute that Mr. Givens normally did on days when he serviced \nthe mall.  Is that right? \nA.  Yes.   \nQ.  Okay.  And when you looked at these, were you able to \nsee that the West Little Rock accounts were before the mall? \nA.  Yeah.   \n \n An administrative law judge filed an opinion on January 8, 2024.  The \nadministrative law judge found, among other things, that the claimant failed \nto prove he sustained a compensable injury.  The administrative law judge \ntherefore denied the claim.  The claimant appeals to the Full Commission. \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \n\nGIVENS - H301211  14\n  \n \n \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.]... \n(B)  “Compensable injury” does not include: \n(iii)  Injury which was inflicted upon the employee at a time \nwhen employment services were not being performed[.]   \n \n An employee is performing employment services when he is doing \nsomething that is generally required by his employer.  Dairy Farmers of \nAmerica v. Coker, 98 Ark. App. 400, 255 S.W.3d 905 (2007).  The Arkansas \nCourt of Appeals uses the same test to determine whether an employee is \nperforming employment services as it does when determining whether an \nemployee is acting within the course and scope of employment.  Pifer v. \nSingle Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).  The test is \nwhether the injury occurred within the time and space boundaries of the \nemployment, when the employee was carrying out the employer’s purpose \ndirectly or indirectly.  Id.   \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n It is the duty of the Full Commission to enter findings in accordance \nwith the preponderance of the evidence, not whether there is substantial \n\nGIVENS - H301211  15\n  \n \n \nevidence to support an administrative law judge’s findings.  Roberts v. Leo \nLevi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  The Full \nCommission reviews an administrative law judge’s opinion de novo, and it is \nthe duty of the Full Commission to conduct its own fact-finding independent \nof that done by an administrative law judge.  Crawford v. Pace Indus., 55 \nArk. App. 60, 929 S.W.2d 727 (1996).  The Full Commission enters its own \nfindings in accordance with the preponderance of the evidence.  Tyson \nFoods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).  The Full \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony it deems worthy of belief.  Farmers Co-op v. Biles, \n77 Ark. App. 1, 69 S.W.3d 899 (2002).   \n An administrative law judge found in the present matter, “2.  The \nclaimant has failed to meet  his burden of proof in demonstrating he was \nengaged in the performance of employment services at the time of the \nsubject December 15, 2022, MVA.”  The Full Commission finds that the \nalleged physical injuries on December 15, 2022 were inflicted upon the \nclaimant at a time when employment services were not being performed.     \n The claimant testified that he became employed with the \nrespondents, Plant Services, in 2016.  The claimant testified that his job \nbasically entailed maintaining and caring for plants in various locations.  As \n\nGIVENS - H301211  16\n  \n \n \nwe have discussed, the record includes a series of Plant Services “Daily \nLogs” which the claimant apparently compiled for the period beginning July \n20, 2022.  Illustrative of these Daily Logs is an entry dated August 9 where \nthe claimant appeared to have logged that he serviced plants at Corky’s \nRibs & BBQ in West Little Rock for approximately 18 minutes before \ntraveling to Park Plaza Mall for employment duties at that location.  There \nwere no Daily Logs demonstrating that the claimant ever began his work \nduties at Park Plaza Mall before proceeding to Corky’s in West Little Rock.     \n The parties stipulated that the employment relationship existed on \nDecember 15, 2022.  The claimant testified that he was working for the \nrespondents that day at Park Plaza before driving to Corky’s in West Little \nRock.  The claimant testified that he had finished his duties at Park Plaza \nand proceeded to drive on West Markham toward Corky’s restaurant, when \nhis car was struck on the passenger side by another vehicle.  The claimant \ntestified that his Daily Log to corroborate his testimony with regard to \nDecember 15, 2022 was not available because “stuff got wet.”  Based on \nthe evidence before us, the Full Commission finds that the claimant was not \na credible witness.  We instead find credible the testimony of the \nowner/operator for Plant Services, Jane Ellen Lanning.  Ms. Lanning \ntestified that the claimant informed her the December 15, 2022 motor \nvehicle accident occurred while “he was leaving Park Plaza to go home.”  \n\nGIVENS - H301211  17\n  \n \n \nMs. Lanning testified that the claimant was not driving to another work \nlocation such as Corky’s at the time of the accident, and that she never saw \na Daily Log corroborating the claimant’s testimony.  The Full Commission \ndoes not find credible the claimant’s assertion that the December 15, 2022 \nDaily Log was essentially ruined, destroyed, or no longer in his possession \nas a result of the accident. \n We recognize that a claimant may be performing employment \nservices if the employer requires him to travel from jobsite to jobsite as part \nof his work.  See Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d \n877 (2006).  In the present case, however, the evidence does not \ndemonstrate that the employer required or directed the claimant to travel \nfrom Park Plaza to Corky’s or any other location at the time of the accident \non December 15, 2022.  Instead, we again find credible Jane Ellen \nLanning’s testimony that the claimant had finished his work for the day at \nthe time the accident occurred.  The critical inquiry in accordance with Act \n796 is whether the claimant was performing employment services when the \ninjury occurred.  See Parker v. Comcast Cable Corp., 100 Ark. App. 400, \n269 S.W.3d 391 (2007), citing Moncus, supra.  The Commission is bound to \nexamine the activity the claimant was engaged in at the time of the accident \nin determining whether or not he was performing employment services.  Hill \nv. LDA Leasing, 2010 Ark. App. 271, 374 S.W.3d 268 (2010).  In the \n\nGIVENS - H301211  18\n  \n \n \npresent matter, the evidence does not demonstrate that the claimant was \nperforming employment services at the time of the December 15, 2022 \nmotor vehicle accident.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that he \nsustained a compensable injury.  The Full Commission finds that the \nclaimant was not performing employment services at the time of the \nDecember 15, 2022 motor vehicle accident.  This claim is therefore \nrespectfully denied and dismissed. \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite dissents. \nDISSENTING OPINION \n The ALJ found that the Claimant failed to prove, by a preponderance \nof the evidence, that he was engaged in the performance of employment \nservices at a time when the alleged physical injuries were inflicted on \nDecember 15, 2022 and that the Claimant has failed to meet his burden of \nproof in demonstrating he sustained a compensable injury to his lumbar \n\nGIVENS - H301211  19\n  \n \n \nspine, cervical spine, right shoulder and right knee.  I disagree, I would rule \nin favor of the Claimant as having been engaged in performing employment \nservices and sustaining a compensable injury to his right shoulder.  \n An employee is performing employment services when he is doing \nsomething that is generally required by his employer.  Dairy Farmers of \nAmerica v. Coker, 98 Ark. App. 400, 255 S.W.3d 905.  The Arkansas Court \nof Appeals uses the same test to determine whether an employee is \nperforming employment services as it does when determining whether an \nemployee is acting within the course and scope of employment.  Pifer v. \nSingle Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).  The test is \nwhether the injury occurred within the time and space boundaries of the \nemployment when the employee was carrying out the employer’s purpose \ndirectly or indirectly.  Id.  \n For the case at hand, Claimant was assigned to work at Park Plaza \nMall, Corky’s Barbeque, and a line of Parker car dealerships.  Claimant \nadmitted that in the past he has serviced the areas west of Little Rock first \nand then journeyed to Park Plaza Mall.  However, there is nothing in the \nrecord that states Claimant performed employment services in that order on \nthe date of the accident.  Claimant stated in the hearing that he serviced the \nplants at Park Plaza Mall and was journeying to Corkey’s Barbeque when \nthe accident occurred.  Further, a fellow co-worker, Teresa Bailey, testified \n\nGIVENS - H301211  20\n  \n \n \nat the hearing that Claimant would normally go to the Park Plaza Mall and \nthen to Corky’s Barbeque.  The Claimant presented as a credible witness in \nthe hearing and provided credible testimony that his work at Corky’s \nBarbeque was part of his normal job duties and a benefit to the \nRespondent.  \n Therefore, I believe Claimant was performing employment services \nat the time of the accident on December 15, 2022.  \n To establish a compensable injury by a preponderance of the \nevidence the Claimant must prove:  (1) an injury arising out of and in the \ncourse of employment;  (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath;  (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and  (4) that the \ninjury was caused by a specific and identifiable time and place of \noccurrence.  A compensable injury must be established by medical \nevidence supported by objective findings and medical opinions addressing \ncompensability must be stated within a degree of medical certainty.  Smith-\nBlair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002).  \n Claimant sustained a compensable injury to his right shoulder. \nClaimant was in a motor vehicle accident on December 15, 2022 in the \ncourse and scope of his employment.  Claimant was diagnosed with the \n\nGIVENS - H301211  21\n  \n \n \nobjective findings of a shoulder strain, and multiple tears in ligaments of the \nClaimant’s right shoulder as viewed by X-Ray and MRI.  This injury caused \ninternal or external harm to his body which required medical services in the \nform of injections and right rotator cuff tear surgery.  Further, Dr. \nChandrakanth opined that Claimant’s injuries resulted from the December \n15, 2022 motor vehicle accident by letter on February 13, 2023.  The \ncredible evidence supports the conclusion that this injury was caused by the \nmotor vehicle accident on December 15, 2022,  I would rule in favor of the \nClaimant as having sustained a compensable injury to his right shoulder.  \n Therefore, I would rule that the Claimant has proved by a \npreponderance of the evidence that he was performing employment \nservices for Respondent and sustained a compensable injury to his right \nshoulder.  \n For the foregoing reasons, I dissent with the majority opinion. \n \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":32343,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H301211 WESLEY C. GIVENS, EMPLOYEE CLAIMANT J.E.L. ENTERPRISES, LLC, d/b/a PLANT SERVICES OF NORTH LITTLE ROCK, EMPLOYER RESPONDENT AUTO OWNERS INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","neck","shoulder","fracture","cervical","lumbar","sprain","strain"],"fetchedAt":"2026-05-19T22:29:45.456Z"},{"id":"full_commission-G506221-2024-05-21","awccNumber":"G506221","decisionDate":"2024-05-21","decisionYear":2024,"opinionType":"full_commission","claimantName":"Roger Grubbs","employerName":"Southern Personnel Management, Inc./ Cabinet Shop, Inc","title":"GRUBBS VS. SOUTHERN PERSONNEL MANAGEMENT, INC./ CABINET SHOP, INC. AWCC# G506221 MAY 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Grubbs_Roger_G506221_20240521.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Grubbs_Roger_G506221_20240521.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G506221 \n \nROGER GRUBBS, \nEMPLOYEE \n \nCLAIMANT \nSOUTHERN PERSONNEL MANAGEMENT, INC./ \nCABINET SHOP, INC., EMPLOYER \n \nRESPONDENT NO. 1 \nAMTRUST NORTH AMERICA, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \n \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2 \n \n      \nOPINION FILED MAY 21, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE WILLIAM C. FRYE, \nAttorney at Law, North Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID L. PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed.  \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nNovember 29, 2023.  The administrative law judge found that the claimant \nproved he was entitled to additional medical treatment and temporary total \ndisability benefits.  After reviewing the entire record de novo, the Full \nCommission finds that the claimant did not prove surgery recommended by \nDr. Blankenship in accordance with Ark. Code Ann. §11-9-508(a)(Repl. \n\nGRUBBS - G506221  2\n  \n \n \n2012).  We find that the claimant did not prove he was entitled to an award \nof temporary total disability benefits.     \nI.  HISTORY \n Roger Grubbs, now age 70, testified that he began performing \ncabinetry work for the respondent-employer in 1975.  Mr. Grubbs described \nthe physical nature of his work for the respondents:  “It involved lifting heavy \ncabinets, lifting heavy sheets of material, laying them on the saw to cut \nthem up, fabrication, crawling in and out of cabinets, moving heavy stuff, \ndelivery, installation.”       \n It was stipulated that the claimant sustained a compensable injury on \nMarch 4, 2013.  The record indicates that the claimant was involved in a \nmotor vehicle accident on that date.  The claimant testified, “I was at a – \nwaiting at a red light waiting for it to turn green and somebody drove into \nme from behind.”  Dr. Terry Clark diagnosed “1.  Cervical strain” and “2.  \nThoracic strain.”  Dr. Clark treated the claimant conservatively and returned \nhim to restricted work duty.  The claimant participated in a Functional \nCapacity Evaluation on October 3, 2013:  “The results of this evaluation \nindicate that a reliable effort was put forth, with 51 of 51 consistency \nmeasures within expected limits....Mr. Grubbs demonstrated the ability to \nperform work in the MEDIUM classification of work[.]”  Dr. Christopher \n\nGRUBBS - G506221  3\n  \n \n \nCovington stated on June 9, 2015, “He is at maximum medical \nimprovement from a neurosurgical standpoint.”         \nThe parties stipulated that the employment relationship existed on \nAugust 7, 2015.  The claimant testified on direct examination:  \n Q.  Did you have a second accident on August 7 of 2015? \n A.  Yes.   \n Q.  Tell us how that accident happened. \nA.  Light turned green so I proceeded through the intersection.  \nSomeone on my right ran the red light and collided with me \nfrom the side.... \nQ.  Have you done any work at the cabinet shop since that \naccident? \nA.  About three hours.   \nQ.  How did the August 7, 2015, accident affect your \ncondition? \nA.  It made it much worse.   \n \n The parties stipulated that the respondents “initially accepted this \nclaim as compensable and paid some temporary total disability benefits.”   \nAccording to the record, Dr. Gregory M. Loyd examined the claimant \non August 12, 2015: \nAt the request of and authorization by Southern Personnel \nManagement, we are seeing Mr. Roger Grubbs.  The patient \npresents today for evaluation of injuries to his spine that \noccurred in an MVA on 08-07-15.  He apparently was in a \nsmall truck (I can’t recall whether this was a company vehicle \nor not) when he was struck in the passenger side rear \nfender/wheel area when another vehicle ran a red light.  He \napparently was wearing a seat belt but was jostled around in \nhis seat.... \n \n Dr. Loyd assessed “Acute exacerbation of degenerative arthritis of \nthe cervical, thoracic and lumbar spines related to recent MVA....My overall \n\nGRUBBS - G506221  4\n  \n \n \ngeneral impression is that it is likely that this patient’s course will be \nsomewhat prolonged just based on his previous protracted course of care \nfrom first MVA.”    \n Dr. Steven L. Cathey corresponded with the respondent-carrier on \nAugust 31, 2015: \nThank you for the medical records you provided, as well as \nyour introductory letter regarding Mr. Roger Grubbs.  As you \nrecall, he was seen today for the purpose of an independent \nmedical evaluation.  The patient presents with chronic neck, \nthoracic and lower back pain that actually began after an \noriginal occupational injury sustained on March 4, 2013.  \nAccording to the patient, he was working in a cabinet shop \nwhen he was driving a “light truck” that was rear-ended at a \nfour-way intersection.... \nSince the original March 2013 injury the patient has worked a \nlimited amount at the cabinet manufacturing facility where he \nis employed.  He has not worked at all since the most recent \nmotor vehicle accident of August 7, 2015.  He was given \nsome muscle relaxants and meloxicam by a primary care \nphysician in Ft. Smith and also received a parenteral steroid \ninjection.... \nMr. Jackson, in my opinion, the patient’s current diagnosis is \ndegenerative disc disease affecting the cervical, thoracic and \nlumbar spine.  He probably did suffer a thoracic strain \nsuperimposed on these pre-existing conditions.  \nUnfortunately, he is not a candidate for spinal surgery or other \nneurosurgical intervention.  This opinion is, therefore, \nconsistent with the one he received from Dr. Covington earlier \nthis year.  I do not see this problem getting any better long-\nterm. \nThe patient is really not interested in physical therapy for \ntreatment of the thoracic strain.  Moreover, I believe since he \nis almost a month out from this event he is at maximal medical \nimprovement and there is really no indication for additional \ntreatment as it relates to this particular motor vehicle accident.  \nHe could certainly follow-up with Dr. Covington’s \n\nGRUBBS - G506221  5\n  \n \n \nrecommendation and pursue long-term pain management in \nTulsa for those symptoms related to the March 4, 2013, MVA.   \nAs it relates to this most recent motor vehicle accident there is \nno impairment rating in the absence of objective findings \neither clinically or radiographically.   \nAs far as his job is concerned, I believe he can either return to \nwork at regular duty status, find another line of employment \nthat is not so strenuous or file for long-term disability benefits \nthrough Social Security.... \n \n The claimant began treating with Dr. James B. Blankenship on \nNovember 14, 2016:  “The patient’s chief complaint is lower back pain.  He \nhas multifactorial injuries with a motor vehicle accident in March of 2013, \nwhich he never really got better from but then he was also in an MVA in \nAugust of 2015....The patient has done multiple different injections and \nphysical therapy.”  Dr. Blankenship’s impression was “1.  Low back pain,” \n“2.  Fibromyalgia,” “3.  Pain in thoracic spine,” and “4.  Cervicalgia.”   \n An administrative law judge filed an opinion on January 4, 2017.  The \nadministrative law judge found that the claimant proved he was “entitled to \nthe payment of a 5% permanent impairment rating as assessed by Dr. \nHolder in October of 2013.” \nThe claimant followed up with Dr. Blankenship on February 9, 2017.  \nDr. Blankenship stated that new diagnostic testing showed abnormalities in \nthe claimant’s lumbosacral spine, and Dr. Blankenship planned, “I have told \nhim the best thing for us to do is to try another aggressive, active, \nconservative treatment plan.  I have recommended we get him in to see Dr. \n\nGRUBBS - G506221  6\n  \n \n \nDavid Cannon for evaluation and possible ESI.  I have recommended we \nget him started with an aggressive, active physical therapy course with the \nfolks at Summit.”   \n A pre-hearing order was filed on September 13, 2017.  According to \nthe pre-hearing order, the claimant contended that he was “entitled to \ntemporary total disability benefits from February 9, 2017 until a date yet to \nbe determined.  Claimant contends he is entitled to additional treatment by \nor at the direction of Dr. Blankenship, including but not limited to physical \ntherapy and pain management treatment.  Claimant contends that his \nattorney is entitled to an appropriate attorney’s fee.”   \nThe parties stipulated that the respondents “now controverted the \nclaim.”  The respondents contended that the claimant “has not produced \nobjective, measurable findings of a compensable injury pursuant to A.C.A. \n§11-9-102.  Claimant has had chronic back problems in the cervical, \nthoracic, and lumbar areas.  Claimant was involved in a motor vehicle \naccident on March 4, 2013.  Claimant underwent MRIs of all three areas of \nthe back that showed protrusions and degenerative changes.  The claimant \nunderwent a functional capacity evaluation in October 2013 and was \nrestricted to medium duty and was only able to work four hours per day.  He \nwas taking Lyrica and described pain in the neck, mid-back, low back and \ndown the legs.  He also had moderate spasms in his back due to the \n\nGRUBBS - G506221  7\n  \n \n \naccident.  Claimant then went to Dr. Covington in 2014 complaining of back \npain.  Dr. Covington noted a long history of chronic mid-back pain.  The \nclaimant had lost 40% of his work time.  He underwent [an] MRI that \nshowed osteophytes and bulges at L3-4, L4-5, and L5-S1.  He also had a \ndisc protrusion at L4-5.  Claimant returned to the doctor in June of 2015 \nwith the same problems, continuing to have radiculopathy down the leg and \nmoderate spasms.  He was seen by the doctor for those conditions the day \nbefore the incident of August 7, 2015.  He was followed for degenerative \narthritis.  It is the respondents’ position that there are no new objective \nfindings related to the second motor vehicle accident.”   \nThe parties agreed to litigate the following issues: \n1.  Compensability of injury to claimant’s cervical, thoracic, \nand lumbar spine on August 7, 2015. \n2.  Temporary total disability benefits from February 9, 2017 \nthrough a date yet to be determined. \n3.  Medical benefits as directed by Dr. Blankenship. \n4.  Attorney’s fee.   \n \n A hearing was held on January 29, 2018.  At that time, the claimant \ncontended that he was entitled to temporary total disability benefits \nbeginning September 30, 2015 through a date yet to be determined.  The \nclaimant reserved the issue of his entitlement to permanent disability \nbenefits.  An administrative law judge filed an opinion on February 28, \n2018.  The administrative law judge found that the claimant proved he \nsustained a compensable injury on August 7, 2015.  The administrative law \n\nGRUBBS - G506221  8\n  \n \n \njudge found that the claimant proved he was “entitled to additional medical \ntreatment as recommended by Dr. Blankenship.”  The administrative law \njudge awarded temporary total disability benefits.  The respondents \nappealed to the Full Commission and the claimant cross-appealed. \n The Full Commission filed an opinion on October 1, 2018.  The Full \nCommission found that the claimant proved he sustained a compensable \ninjury to his neck and back on August 7, 2015.  The Full Commission found \nthat “the claimant proved Dr. Blankenship’s current treatment \nrecommendations were reasonably necessary in connection with the \nAugust 7, 2015 compensable injury to the claimant’s neck and back.”  The \nFull Commission found, “the claimant proved he was entitled to \nconservative medical treatment as recommended by Dr. Blankenship, said \ntreatment to be provided by the respondents Amtrust North America.  The \nFull Commission finds that the claimant reached the end of the healing \nperiod for his August 7, 2015 compensable injury no later than August 31, \n2015.  The claimant did not prove he was entitled to temporary total \ndisability benefits beginning September 30, 2015 or any time thereafter.” \n There was no appeal of the Full Commission’s opinion filed October \n1, 2018.          \n A pre-hearing order was filed on November 27, 2018.  The claimant \ncontended that, as a result of the March 4, 2013 compensable injury, he \n\nGRUBBS - G506221  9\n  \n \n \nhad sustained wage-loss disability in addition to his impairment rating.  After \na hearing, an administrative law judge filed an opinion on February 13, \n2019.  The administrative law judge found that the claimant had sustained \nwage loss “in an amount equal to a 15% impairment and is in addition to the \n5% assigned for the anatomical impairment rating to the body as a whole.” \n The claimant followed up with Dr. Blankenship on April 4, 2019:  “Mr. \nGrubbs first of all only got one visit approved for physical therapy.  I told him \nthis is a joke....I have recommended that we get him back in to see Dr. \nCannon to inject the upper area where he is hurting....I have also \nrecommended that he get into a comprehensive and active therapeutic \nprogram in Van Buren like we recommended.  If this is not done, I will not \nbe able to see the gentleman.”   \n On April 9, 2020, Dr. Blankenship performed an arthrodesis, disc \nresection, and hemilaminotomies.  The pre- and post-operative diagnosis \nwas “1.  L4-L5 and L5-S1 disc herniations.”  Dr. Blankenship noted on April \n23, 2020, “Overall he is pleased with his surgical outcome so far.”  Dr. \nBlankenship reported on July 16, 2020, “He states his pain he is having \nnow in his low back is a different type of pain.”  The claimant testified that \nhis condition improved following surgery by Dr. Blankenship.   \n Dr. Blankenship reported on October 22, 2020: \nThe patient is in today for follow up from his lumbar fusion.  \nHe is now six months post surgery.  He is doing great with \n\nGRUBBS - G506221  10\n  \n \n \ncomplete resolution of his preoperative pain.  He still has \nsome low back pain mostly midline.  He rates this only about \n20% toward the worst pain imaginable.... \nMr. Grubbs returns to the office today six months postop from \nhis ALIF.  He is doing well and states that he has a marked \nreduction in his preoperative pain.  He has noticed that he is \nstill more prone to flare ups and I told him that is just part of \nthe healing process.  I do think he is at MMI from the \nstandpoint of his surgery.  We have him on no current \nmedications.  The patient is 67 and I have advised him that he \ncannot return to work at what he was doing pre-surgically.  He \nwould have permanent restrictions on him but I told him I \nwould really recommend that he retire.... \n \n Dr. Blankenship assigned the claimant a 12% whole-body \nimpairment rating.  The parties stipulated, “Respondent #1 has accepted \nand is paying the 12% permanent impairment rating to the body as a \nwhole.”  The parties stipulated that the claimant “reached maximum medical \nimprovement on October 22, 2020.” \n The claimant participated in a Functional Capacity Evaluation on \nNovember 11, 2020:  “The results of this evaluation indicate that a reliable \neffort was put forth, with 52 of 52 consistency measures within expected \nlimits....Mr. Grubbs completed functional testing on this date with reliable \nresults.  Overall, Mr. Grubbs demonstrated the ability to perform work in the \nLIGHT classification of work[.]”     \nA pre-hearing order was filed on March 17, 2021.  According to the \npre-hearing order, the claimant contended that he “has sustained \npermanent loss of earning capacity greatly in excess of 12%.”  The \n\nGRUBBS - G506221  11\n  \n \n \nrespondents contended that the claimant “sustained a lumbar injury when \nhe was initially injured on March 4, 2013.  He underwent [an] FCE which \nfound that he could no longer work full time and was restricted to no more \nthan 4-hour work days.  Claimant was working part-time when he was \ninjured on August 7, 2015.  Due to the March 2013 back injury, claimant \nwas assigned a 5% rating to the body as a whole and a 15% wage loss \ndisability.  On August 7, 2015, claimant sustained a compensable injury to \nhis cervical, thoracic and lumbar spine.  He was awarded temporary total \ndisability and medical treatment.  Claimant ultimately had a lumbar fusion \nand was assigned a 12% rating, which respondent #1 accepted and is \ncurrently paying.  A new FCE was done that indicated claimant could return \nto work in the light category.  Respondent #1 has provided vocational \nrehabilitation with Heather Taylor which is ongoing at this time.  \nRespondent No. 1 contends the claimant has sustained no additional wage \nloss disability above the prior 15% he was awarded.” \nThe parties agreed to litigate the following issues: \n 1.  Extent of claimant’s wage loss disability. \n 2.  Attorney’s fee.   \n \n Dr. R. David Cannon performed injection treatment on April 19, \n2021.  Dr. Blankenship reported on May 6, 2021, “He had some trigger \npoint injections with Dr. Cannon that afforded him about two weeks of 50% \nrelief....He has done 12 visits of physical therapy in Alma and this does \n\nGRUBBS - G506221  12\n  \n \n \nseem to help with his pain.  His greatest pain is mid back pain.”  Dr. \nBlankenship recommended additional treatment with Dr. Cannon.   \n After a hearing, an administrative law judge filed an opinion on June \n10, 2021.  The administrative law judge found, \"2.  Claimant has met his \nburden of proving by a preponderance of the evidence that he is entitled to \npermanent partial disability benefits in an amount equal to 30% to the body \nas a whole as a result of his August 7, 2015 compensable injury.” \n The parties have stipulated, “The prior opinions in this matter are \nfinal.” \n The claimant treated with Dr. Cannon on August 2, 2021.  Dr. \nBlankenship noted on August 19, 2021, “He got his SI joint injection.  He \nstates he got 70% relief and still has relief.  He rates his pain anywhere \nfrom 20 to 40% toward the worst pain imaginable.  He is still having some \nlow back pain but overall he states his pain is somewhat less intense.”   \n Dr. Blankenship reported on September 2, 2021: \nThe patient is in today for follow up.  He states that his left low \nback and left buttock pain has gotten significantly worse over \nthe last couple of weeks and he would like to discuss SI joint \nfusion.  He rates his pain now about 80% toward the worst \npain imaginable.... \nI have offered him left SI joint arthrodesis.  After going over \nthe risks and benefits, he wants to proceed on with surgery.  \nNot that there is any question about it, his need for SI joint \narthrodesis is directly related because of his lumbar \nstabilization.  His lumbar stabilization was needed because of \nhis work-related injury.  Therefore it is directly related to his \nwork-related injury.   \n\nGRUBBS - G506221  13\n  \n \n \n \n Dr. Frank J. Tomecek provided an INDEPENDENT MEDICAL \nEXAMINATION on December 1, 2021: \nThis is a pleasant 68-year-old male who on or about August 7, \n2015, while driving a personal vehicle to a job as a cabinet \nbuilder and installer was involved in a motor vehicle accident \nwhen another car ran a stoplight....He has not worked since \nthis accident.  In April of 2020, he underwent an anterior \nlumbar interbody fusion at L4-5 and L5-S1 with posterior \ninstrumentation by Dr. Blankenship.  He states that his \nsurgery relieved a lot of his symptoms.  Currently, he has pain \nin his left buttock and left leg.  He states that when he bends \nover, his pain can be sharp and stabbing.  He feels weak in \nhis bilateral legs, left greater than right.  His left foot and ankle \ngo numb....He has had a few sacroiliac injections, which \nhelped his radicular pain.  He has not had physical therapy \nsince May of 2021, and he feels that this helped him.... \nI have been asked by Exam Works Incorporated if the \npatient’s current treatment is reasonable and necessary.  I \nfeel that the sacroiliac joint injection he has had is reasonable \nand was necessary.  I also feel that the physical therapy he \nhad after surgery is reasonable.  However, I would \nrecommend more physical therapy and at least one more \nsacroiliac joint injection before committing him to another \nmajor operation.   \nIn regard to causation of his current injury, I don’t believe we \nhave definitively established a diagnosis yet.  However, if the \npatient does have left-sided sacroiliac joint pain and sacroiliitis \nas his primary diagnosis, I would feel that the work-related \ninjury is causally related.  The patient reportedly was \nauthorized to have an operation for disk injury at L4-5 and L5-\nS1, and the motor vehicle accident that has been described in \nour report was felt to be the major cause leading to this \nsurgery.  I do not believe there was a direct injury to the \nsacroiliac joint in the motor vehicle accident, but it is not an \nuncommon finding in patients who have had a lumbar fusion \nto develop sacroiliac joint pain due to the increased stress on \nthe sacroiliac joint from a lumbar fusion.  Therefore, if the \npatient does have a final diagnosis of sacroiliitis on the left or \nsacroiliac joint pain, at least indirectly, this diagnosis would be \n\nGRUBBS - G506221  14\n  \n \n \nsecondary to surgery that he had that was related and directly \ncaused by the accident.   \nThe patient has been responding to his current treatment.  He \nhas improved with physical therapy and injections.  \nUnfortunately, he did not get significant improvement with his \nlumbar fusion.  He has had persistent disabling low back pain \nand remains on Celebrex and Tylenol, which do not control \nhis pain enough for him to return to normal function.  Again, I \nfeel further diagnostic testing is necessary, as I have \npreviously described.  I would not recommend any additional \nprescription medications until we have finalized his diagnosis.  \nIf the myelogram CT scan shows that he has a solid fusion \nand no residual neurologic impingement from hardware, \npseudoarthrosis, or adjacent level disk herniation, then I \nwould recommend further physical therapy on his back and \nsacroiliac joint and a second left-sided sacroiliac joint \ninjection.   \nI do not believe the patient has significant co-morbidities or \nprior injuries or pre-existing conditions that have impacted his \ncurrent injury or his current level of function.  The patient does \nnot appear to be displaying any Waddell’s signs, and I do not \nfeel there are significant psychological diagnoses or \npsychological overlay that is contributing to the patient’s \ncomplaint or objective examination findings.... \nAll of my opinions are based on a reasonable degree of \nmedical certainty. \n \n Dr. Tomecek reported on January 17, 2022: \nI saw Dr. Grubbs in follow-up today.  He underwent a \nmyelogram CT scan of the thoracic and lumbar spine.  I \nreviewed all of the films and results with him and his wife, who \naccompanied him.  The myelogram shows no evidence of \nmyelographic block in his lumbar or thoracic spine.  There is \nposterior fusion hardware in place from L4 to the sacrum on \nthe left side only.... \nThe patient had a thoracic myelogram CT scan, which shows \nanterior osteophytes at T7-8, T8-9, T9-10, T10-11, and T11-\n12....There is no cord compression or significant neural \nimpingement. \nHe complains about a lot of pain in his low back.  He \ncomplains of pain over the left sacroiliac joint.  He has had \n\nGRUBBS - G506221  15\n  \n \n \none sacroiliac joint injection, which gave him some relief.  He \ndoes not feel like he has a lot of strength in his legs, \nespecially on the left.  It is hard to go up stairs leading with his \nleft foot, but this has gotten better.  His legs feel heavy when \nhe walks.   \nIMPRESSION/PLAN:  This is a 68-year-old male who has \nundergone a unilateral left-sided L4 to the sacrum \ninstrumented fusion with anterior L4-5 and L5-S1 interbody \nfusion with cages.  He has unilateral hardware with pedicle \nscrews on the left, and again, the anterior cages are at L4-5 \nand L5-S1.  Myelogram CT scan done today suggests there is \nsome erosion around the anterior cages, at least at L5-S1, \nand some erosion around the sacral screws.  There is also \nautofusion of the left sacroiliac joint with a very large \nosteophyte coming off the sacroiliac joint on the left.  It \nappears to be autofused.  I do not agree with Dr. \nBlankenship’s recommendation.  I do not recommend a \nsacroiliac joint fusion on the left, because I believe the patient \nalready has an autofusion there.  He might benefit from a \nsacroiliac joint injection....I believe that his sacroiliac joint \ninjury most likely had a major cause from the accident that \noccurred on and around August 7, 2015.  This is a motor \nvehicle accident, and with the chronic changes around the \nsacroiliac joint, certainly the injury could have occurred over \nsix years ago related to this motor vehicle accident.  If the \nlarge osteophyte is causing some pressure on his inferior \nlumbosacral plexus and thus causing chronic pain, I do not \nfeel capable of doing a reoperation in his retroperitoneal area \nwhen he has had previous surgery with an anterior lumbar \ninterbody fusion.  It would be a very high-risk procedure for \nvascular or other organ injury in the face of previous surgery.  \nI have not done this type of pelvic approach to remove part of \nthe sacroiliac joint.  I would probably have to defer to a \nGeneral Surgeon and an Orthopedic Surgeon.  Again, \nhowever, I would not recommend a sacroiliac joint fusion on \nthe left, because I believe he already is autofused.... \nAll of my opinions are based on a reasonable degree of \nmedical certainty.   \n \n The claimant saw Dr. Blankenship on February 21, 2022: \n\nGRUBBS - G506221  16\n  \n \n \nThe patient is back in today after his IME that he had with Dr. \nTomecek.  He tells me that his SI joint pain is completely \nresolved.  He stretched his leg and when he did, his SI joint \npopped and is no longer hurting.  He did have a new \nmyelogram done for his thoracic and his low back pain but \nthat pain has not changed any.  He says it is something he \ncan live with.  He only rates that pain about 40 to 50% toward \nthe worst pain imaginable.... \nSince I saw Mr. Grubbs his SI joint pain is resolved.  He saw \nDr. Tomecek for an Independent medical evaluation.  I really \ndo not know why worker’s comp carriers continue to send \npatients of mine to Dr. Tomecek.  I have stated this multiple \ntimes.  I will state it again.  Dr. Tomecek testified against me \nin a malpractice lawsuit.  I reported him to the American \nAssociation of Neurological Surgeons where he was \nsanctioned for his testimony.  He obviously in no way can give \na true independent medical evaluation on one of my patients.  \nI would never see one of his patients as a second opinion no \nmatter how certain I would be that I could put all of that as a \nsecondary factor.  It is just inappropriate.  Concerning Mr. \nGrubb’s surgical intervention, I do think he is at surgical \nMMI.... \nI am going to plan on seeing him back in one year for followup \nsince he is going to keep his case open.  We will continue him \non his intermittent Celebrex.  He is going to call us if there are \nany changes. \n \n The respondents’ attorney appeared to state at hearing that the \nrespondent-carrier paid temporary total disability benefits until February 21, \n2022.   \nThe record indicates that Dr. Blankenship arranged for an MRI of the \nclaimant’s lumbar spine, which was taken on August 2, 2022 with the \nfollowing impression: \n1.  Status post L4-L5, L5-S1 anterior arthrodesis with posterior \ndecompression and unilateral pedicular fixation on the left.  \n\nGRUBBS - G506221  17\n  \n \n \nNo residual or retained stenosis is noted.  No gross \ncomplications of the orthopedic implants are noted.   \n2.  Moderate to severe facet arthropathy at L2-L3 and L3-L4 \nunchanged from preoperative MRI. \n3.  Mild kyphosis at L3-L4 with degenerative changes that are \nmild in nature.   \n \n Dr. Blankenship noted on September 12, 2022: \nThe patient is back in today.  He was last seen in February.  \nHe states his pain has gotten significantly worse.  He is \nhaving left-sided low back pain that radiates into the left hip \nand left buttock.  He has left foot numbness.  Flexion, \nreaching, lifting all significantly aggravate his pain.  He has not \ndone any conservative treatment since we last saw him.  He \nrates his pain at 100% toward the worst pain imaginable.... \nMr. Grubbs is back in the office today complaining of left-sided \nlower back pain.  He is also having some paresthesias in his \nleft foot and left leg.  His MRI looked good.  He has well-\ndecompressed neural exit foramina bilaterally with well-placed \nENZA implants that appear stable on his x-rays.  He does \nhave some adjacent segment facet disease at L3-L4 but this \nis much higher than [where] he is hurting.  His SI joint \nexamination did reveal 5 out of 5 positive findings although it \nwas not marked.... \nI have recommended we get him in to see Dr. David Cannon \nfor a left SI joint injection.  I told him that after his SI injection a \nweek later I want him to call Rhonda and tell her or send her a \nscreen shot of his flow sheet.  If he does not get any relief at \nall with his SI joint injections, I want him to have an LESI \nbefore he comes back in to see me.... \n \n Dr. Blankenship noted on September 21, 2022, “Please be advised \nthat the above patient has been a regular patient of this office and has been \ntreated at our office on Sep 12, 2022.  Patient will need to remain off work \nuntil after recommended injections and patient has followed up.\"   \n\nGRUBBS - G506221  18\n  \n \n \n Dr. Cannon performed an injection on or about November 3, 2022.  \nThe claimant testified that Dr. Cannon’s treatment “did me a lot of good.”   \n Dr. Blankenship gave the following impression on December 8, \n2022:   \nThe patient underwent a left SI joint injection.  By the end of \nthe first week he had gotten a 60% relief of his pain.  \nUnfortunately over the past month or little over a month, his \npain is now back to only a 30% relief.  We discussed the \npossibility of getting an LESI but I think this injection coupled \nwith Steve’s examination clinically means his pain generator is \nhis SI joint. \nRecommendations:  I told Roger we could get it injected \nagain but it is unlikely that is going to afford him any long-term \nbenefit.  I have gone over the risks and benefits of SI joint \narthrodesis and after a lengthy discussion he has elected to \ndo the following. \nHe wants to proceed on with left SI joint arthrodesis.  He \nunderstands the risks and benefits of SI joint arthrodesis and \nas soon as we get it authorized, we will get him on the \nschedule.   \n \n A pre-hearing order was filed on March 1, 2023.  According to the \npre-hearing order, the claimant contended, “The claimant contends that his \nauthorized treating physician is recommending additional treatment and has \nopined that as of September 12, 2022 the claimant remained unable to \nwork.  Dr. Blankenship has not released the claimant to return to work \npending the claimant’s receipt of recommended medical treatment.  The \nclaimant contends that the SI joint surgery recommended by Dr. \nBlankenship is reasonably necessary treatment in view of the fact that Dr. \nBlankenship and Dr. Cannon have both utilized conservative modalities that \n\nGRUBBS - G506221  19\n  \n \n \nhave not adequately addressed the claimant’s significant and ongoing \nproblems.  Claimant contends his attorney is entitled to an attorney’s fee on \nall indemnity benefits owed to claimant.”   \n The respondents contended, “Respondent #1 contends that claimant \nis not entitled to any additional benefits.”   \n The parties agreed to litigate the following issues: \n1.  Temporary total disability benefits from September 13, \n2022 through a date yet to be determined. \n2.  Additional medical treatment; including SI joint surgery \nrecommended by Dr. Blankenship. \n3.  Attorney fee.   \n \n The claimant followed up with Dr. Tomecek on May 4, 2023: \nHe presented to clinic today with his wife.  He has persistent \ngnawing pain that waxes and wanes in his left paraspinal \narea, left gluteal crest that runs laterally to his hip and the \nback of his legs.  He describes it as a deep ache and a bone \npain.  He also has numbness in his left foot from his ankle \ndown.... \nThis is a 69-year-old male who continues to complain of left \nparaspinal pain and left hip pain and pain in the back of his \nleft leg....It is my understanding again that Dr. Blankenship \n[has] ordered [an] MRI that was done on August 2, 2022 and \nagain he is recommending a left SI joint fusion to treat this \npatient’s atypical paraspinal pain and leg pain and numbness.  \nI have reviewed the MRI from August 2, 2022.  It basically \nshows that the patient has hardware in place on the left from \nL4 to the sacrum posteriorly and then anterior cages at L4-5 \nand L5-S1.  There is no new herniated disc there is no severe \nneural impingement or foraminal encroachment.  However the \nstatus of the patient’s fusion is impossible to assess on this \nMRI.  There is nothing on this MRI that would change my \nopinion that I made on January 17, 2022.  I am concerned the \npatient has pseudoarthrosis at L5-S1.  He has some \nloosening around the S1 screw and I do not see dense bone \n\nGRUBBS - G506221  20\n  \n \n \ngrowth posterior laterally at L5-S1 on the left and there is no \nbone this has been placed (sic) on the right.... \nI should mention as an aside that Mr. Grubbs was very \nfrustrated with his current condition and his current care.  He \nexpressed extreme doubt in my opinion.  He feels convinced \nthat his SI joint is a problem and it frequently pops so he \nSterets (sic) his SI joint.  I tried to explain to him that his back \ncould pop of (sic) his fusion is not solid and there are other \njoints in the area that could pop that are not his SI joint.  He \nappears to really want to have this operation of an SI joint \nfusion almost whether it helps him or not even though he is \nreally doing well under all the circumstances.  He was very \nargumentative and constantly bringing up Dr. Blankenship’s \nopinion and disagreeing with my diagnoses opinions and \ntreatment recommendations.  This significantly prolonged our \nvisit.  After I went over all the films with him as far as the \nmyelogram CAT scan again and clearly explained that his \njoint was already fused I believe he left the office with a little \nbit better understanding of why I do not agree with Dr. \nBlankenship’s opinion of an SI joint fusion.   \nAll my opinions are based on a reasonable degree of medical \ncertainty.   \n \n Dr. Blankenship stated in part on August 10, 2023, “I find Dr. \nTomecek’s second opinion would be insulting if it were not for the fact that I \nknow Dr. Tomecek.  My opinion as far as what Mr. Grubbs should consider \nis unchanged.  Mr. Grubb’s decision to proceed on with surgical intervention \nis unchanged.  I think it is probably time we get the guy treated.”   \nAfter a hearing, an administrative law judge filed an opinion on \nNovember 29, 2023.  The administrative law judge found that the claimant \nproved he was “entitled to additional medical treatment, including SI joint \nsurgery recommended by Dr. Blankenship.”  The administrative law judge \nfound that the claimant proved he was entitled to temporary total disability \n\nGRUBBS - G506221  21\n  \n \n \nbenefits “beginning September 13, 2022 and continuing through a date yet \nto be determined.”  The respondents appeal to the Full Commission. \nII.  ADJUDICATION \n A.  Medical Treatment \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  What \nconstitutes reasonably necessary medical treatment is a question of fact for \nthe Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 \nS.W.2d 70 (1984).   \n An administrative law judge found in the present matter, “2.  \nClaimant has met his burden of proving by a preponderance of the \nevidence that he is entitled to additional medical treatment, including SI joint \nsurgery recommended by Dr. Blankenship.”  The Full Commission does not \naffirm this finding.  It was stipulated that the claimant initially sustained a \ncompensable injury on March 4, 2013.  The claimant was diagnosed with \ncervical and thoracic strain following a motor vehicle accident.  Dr. \nCovington stated on June 9, 2015, “He is at maximum medical \n\nGRUBBS - G506221  22\n  \n \n \nimprovement from a neurosurgical standpoint.”  An administrative law judge \neventually awarded the claimant a 5% permanent anatomical impairment \nand 15% wage-loss disability as a result of the March 4, 2013 compensable \ninjury.   \n The claimant sustained another compensable injury on August 7, \n2015 as the result of a second motor vehicle accident.  A physician’s \nassessment in August 2015 was “Acute exacerbation of degenerative \narthritis of the cervical, thoracic and lumbar spines related to recent MVA.\"  \nDr. Cathey opined on August 31, 2015, “[T]he patient’s current diagnosis is \ndegenerative disc disease affecting the cervical, thoracic and lumbar spine.  \nHe probably did suffer a thoracic strain superimposed on these pre-existing \nconditions.  Unfortunately, he is not a candidate for spinal surgery or other \nneurosurgical intervention....I believe since he is almost a month out from \nthis event he is at maximal medical improvement and there is really no \nindication for additional treatment as it relates to this particular motor \nvehicle accident.”   \n Nevertheless, the claimant began treating with Dr. Blankenship in \nNovember 2016.  Dr. Blankenship recommended “aggressive” conservative \ntreatment and injections performed by Dr. Cannon.  An administrative law \njudge filed an opinion on February 28, 2018 and found that the claimant \nproved he was “entitled to additional medical treatment as recommended by \n\nGRUBBS - G506221  23\n  \n \n \nDr. Blankenship.”  The respondents appealed to the Full Commission, \nwhich filed an opinion on October 1, 2018.  As we have noted, the Full \nCommission found that “the claimant proved Dr. Blankenship’s current \ntreatment recommendations [emphasis supplied]” were reasonably \nnecessary in connection with the August 7, 2015 compensable injury.  The \nFull Commission found that the claimant proved he was entitled to \n“conservative medical treatment [emphasis supplied]” recommended by Dr. \nBlankenship.   \n Despite the Full Commission’s explicit award of only “conservative \nmedical treatment,” the respondents apparently authorized surgery \nperformed by Dr. Blankenship on April 9, 2020.  Post-surgical improvement \nis a proper consideration in determining whether surgery was reasonably \nnecessary.  Winslow v. D&B Mech. Contrs., 69 Ark. App. 285, 13 S.W.3d \n180 (2000).  In the present matter, the claimant has not consistently \nreported relief from surgery performed by Dr. Blankenship on April 9, 2020.  \nThe claimant has at times reported a decrease in his back pain but has also \nreported continued chronic back pain following surgery.  In any event, the \nrespondents accepted a 12% permanent anatomical impairment rating \nassessed by Dr. Blankenship on October 22, 2020.  The parties also \nstipulated that the claimant “reached maximum medical improvement on \nOctober 22, 2020.”   \n\nGRUBBS - G506221  24\n  \n \n \n The claimant continued to receive occasional injection therapy \nperformed by Dr. Cannon, and the claimant was provided physical therapy.  \nDr. Blankenship reported on September 2, 2021, “I have offered him left SI \njoint arthrodesis.”  Dr. Tomecek provided an Independent Medical \nExamination on December 1, 2021 and opined, “I would recommend more \nphysical therapy and at least one more sacroiliac joint injection before \ncommitting him to another major operation.”  Dr. Tomecek also noted, with \nsupport from the record, that the claimant “did not get significant \nimprovement with his lumbar fusion.  He has had persistent disabling low \nback pain and remains on Celebrex and Tylenol, which do not control his \npain enough for him to return to normal function.”  Dr. Tomecek reported on \nJanuary 17, 2022, “I do not agree with Dr. Blankenship’s recommendation.  \nI do not recommend a sacroiliac joint fusion on the left, because I believe \nthe patient already has an autofusion there.”   \n According to the record, the claimant informed Dr. Blankenship on \nFebruary 21, 2022, “He tells me that his SI joint pain is completely resolved.  \nHe stretched his leg and when he did, his SI joint popped and is no longer \nhurting....Since I saw Mr. Grubbs his SI joint pain is resolved.”   \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The Commission is not required to believe the testimony of the \n\nGRUBBS - G506221  25\n  \n \n \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  The Commission \nalso has the authority to accept or reject medical opinion and the authority \nto determine its medical soundness and probative force.  Green Bay \nPackaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999).  It is within \nthe Commission’s province to weigh all of the medical evidence and to \ndetermine what is most credible.  Minnesota Mining & Mfg. v. Baker, 337 \nArk. 94, 989 S.W.2d 151 (1999).   \n In the present matter, the Full Commission finds that Dr. Tomecek’s \nexpert opinion is credible and is entitled to more evidentiary weight than Dr. \nBlankenship’s opinion.  The claimant did not prove that a sacroiliac joint \nfusion proposed by Dr. Blankenship was reasonably necessary in \nconnection with the compensable injury sustained by the claimant on \nAugust 7, 2015.  The evidence demonstrates that the claimant has not \nexperienced lasting significant improvement in his back pain following \nsurgery performed by Dr. Blankenship on April 9, 2020.  The evidence of \nrecord supports Dr. Tomecek’s opinion that the claimant would benefit from \nconservative modalities such as physical therapy and injection treatment.  \nThis form of conservative medical effective treatment was originally \nawarded by the Full Commission on October 1, 2018.  The Full Commission \n\nGRUBBS - G506221  26\n  \n \n \nhas never found that surgery was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  We therefore find that the \nclaimant proved he was entitled to additional physical therapy and injection \ntreatment performed by Dr. Cannon.         \n B.  Temporary Disability \n Temporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \nHwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing \nperiod” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \ncontinues until the employee is as far restored as the permanent character \nof the injury will permit.  Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 \nS.W.2d 582 (1982).  The determination of when the healing period has \nended is a question of fact for the Commission.  Porter Seed Cleaning, Inc. \nv. Skinner, 1 Ark. App. 235, 615 S.W.2d 380 (1981). \n An administrative law judge found in the present matter, “3.  \nClaimant has met his burden of proving by a preponderance of the \nevidence that he is entitled to temporary total disability benefits beginning \nSeptember 13, 2022 and continuing through a date yet to be determined.”  \nThe Full Commission does not affirm this finding.  The claimant sustained a \ncompensable injury on August 7, 2015.  Dr. Loyd’s assessment was “Acute \n\nGRUBBS - G506221  27\n  \n \n \nexacerbation of degenerative arthritis of the cervical, thoracic and lumbar \nspines related to recent MVA.”  Dr. Cathey opined on August 31, 2015 that \nthe claimant had sustained a “strain” of his thoracic spine.  Dr. Cathey \nopined that the claimant had reached “maximal medical improvement.”  The \nFull Commission found on October 1, 2018 that the claimant “reached the \nend of the healing period for his August 7, 2015 compensable injury no later \nthan August 31, 2015.  The claimant did not prove he was entitled to \ntemporary total disability benefits beginning September 30, 2015 or any \ntime thereafter.”  There was no appeal of the Full Commission’s opinion \nfiled October 1, 2018, and the parties have stipulated, “The prior opinions in \nthis matter are final.”   \n Nevertheless, as we have noted, the respondents apparently \nauthorized a surgical procedure performed by Dr. Blankenship on April 9, \n2020.  The parties thereafter entered into a stipulation that the claimant \n“reached maximum medical improvement on October 22, 2020.”  The \nrespondents accepted and paid a 12% anatomical impairment rating \nassessed by Dr. Blankenship on October 22, 2020.  Permanent impairment \nis any functional or anatomical loss remaining after the healing period has \nbeen reached.  See Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 \nS.W.2d 411 (1994).  In an opinion filed June 10, 2021, an administrative law \njudge found that the claimant had sustained wage-loss disability in the \n\nGRUBBS - G506221  28\n  \n \n \namount of 30% as a result of the August 7, 2015 compensable injury.  \nAlthough the record indicates that the respondents paid temporary total \ndisability benefits until February 21, 2022, the evidence does not \ndemonstrate that the claimant re-entered a healing period at any time after \nOctober 22, 2020.  Dr. Blankenship’s off-work note dated September 21, \n2022 is not probative evidence demonstrating that the claimant re-entered a \nhealing period as a result of the compensable exacerbation or strain \nsustained by the claimant on August 7, 2015.  Temporary total disability \nbenefits cannot be awarded after a claimant’s healing period has ended.  \nMilligan v. West Tree Serv., 57 Ark. App. 14, 946 S.W.2d 697 (1997).         \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove the “SI joint arthrodesis” recommended by \nDr. Blankenship was reasonably necessary in accordance with Ark. Code \nAnn. §11-9-508(a)(Repl. 2012).  The claimant proved he was entitled to \nadditional physical therapy and injection treatment provided by Dr. Cannon.  \nThe Full Commission finds that the claimant did not prove he was entitled to \nan award of temporary total disability benefits.  The Full Commission’s \naward of physical therapy and injection treatment does not extend the \nclaimant’s healing period.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. \nApp. 230, 184 S.W.3d 31 (2004).   \n \n\nGRUBBS - G506221  29\n  \n \n \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion finding that the \nclaimant has proven by a preponderance of the credible evidence that \nadditional medical treatment is reasonable and necessary and that the \nclaimant is totally incapacitated from earning wages and remains in his \nhealing period entitling him to additional temporary total disability benefits.  \nThe claimant was assigned a 12% impairment rating to the body as a \nwhole after an April 9, 2020 surgery performed by Dr. James Blankenship. \nIn an opinion entered on June 10, 2021, the claimant was awarded \nadditional permanent partial disability benefits of 30% to the body as a \nwhole. \n The parties appeared for a third hearing on November 13, 2023, to \ndetermine whether the claimant is entitled to additional medical treatment \nincluding SI joint surgery as recommended by Dr. Blankenship and \nadditional temporary total disability benefits from September 13, 2022, \n\nGRUBBS - G506221  30\n  \n \n \nthrough a date to be determined.  The ALJ ruled that the claimant is entitled \nto the surgery as recommended by Dr. Blankenship and TTD benefits \nbeginning September 13, 2022, and continuing through a date yet to be \ndetermined.  \nArk. Code Ann. § 11-9-508(a) (Repl. 2012) requires an employer to \nprovide an employee with medical and surgical treatment \"as may be \nreasonably necessary in connection with the injury received by the \nemployee.\" The claimant has the burden of proving by a preponderance of \nthe evidence that the additional treatment is reasonable and necessary. \nNichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of fact for \nthe Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 S.W.3d \n445 (2023).  In assessing whether a given medical procedure is reasonably \nnecessary for treatment of the compensable injury, the Commission \nanalyzes both the proposed procedure and the condition it sought \nto remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. 153, \n426 S.W.3d 539 (2013). \nIt is within the Commission's province to weigh all the medical \nevidence to determine what is most credible and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \n\nGRUBBS - G506221  31\n  \n \n \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  However, the Commission has the authority to accept \nor reject medical opinions.  Williams v. Ark Dept. of Community Corrections, \n2016 Ark. App. 427, 502 S.W. 3d 530 (2016).  Furthermore, it is the \nCommission's duty to use its experience and expertise in translating the \ntestimony of medical experts into findings of fact and to draw inferences \nwhen testimony is open to more than a single interpretation.  Id. \nHere, the ALJ favors Dr. Blankenship’s opinion, stating that “[w]hile \nDr. Tomecek has seen the claimant on three different occasions, Dr. \nBlankenship has seen the claimant on multiple occasions, and he \npreviously performed surgery on the claimant’s lumbar spine in 2020.”  \n(Op., P. 7).  However, this disregards the claimant’s history of subjective \ncomplaints arising long after he reported resolution of his preoperative pain \nas the result of his lumbar fusion.  \nAt an October 22, 2020 follow-up appointment with Dr. Blankenship \nafter his lumbar fusion, the claimant reported that six months post-surgery \nhe was “doing great with complete resolution of his preoperative pain.  He \nhas some low back pain, mostly midline.  He rates this only about 20% \ntoward the worst pain imaginable.”  (Cl. Ex. 1, P. 1).   \nSix months later, the claimant began complaining of pain ranging \nfrom a 3/10 to a 9/10 in his lower extremities and presented to Dr. Robert \n\nGRUBBS - G506221  32\n  \n \n \nCannon for treatment.  (Cl. Ex. 1, P. 6).  Dr. Cannon provided a left SI joint \ninjection.  (Cl. Ex. 1, P. 8).  \nIn May 2021, Dr. Blankenship reported that the claimant’s “greatest \npain complaint is mid back pain.”  (Cl. Ex. 1, P. 11).  Dr. Blankenship noted \nthat the thoracic MRI conducted in February 2020 revealed no acute \npathology and opined that although the claimant was positive for post \nlaminectomy syndrome, “[i]t is not uncommon when someone has had \nlumbar arthrodesis, or even before this, to have SI joint pain.  This does not \nneed to be treated.” (Cl. Ex. 1, P. 14).  \nWhen the claimant presented with “significantly worse” pain on \nSeptember 2, 2021, Dr. Blankenship immediately offered the claimant left \nSI joint arthrodesis without conducting any further treatment or diagnostic \nstudies.  (Cl. Ex. 1, Pp. 26-29).  However, the record reflects that the \nclaimant’s issues are primarily degenerative in nature.  \nThe respondents obtained an independent medical examination \n(IME) by Dr. Frank Tomecek on December 1, 2021.  (Resp. Ex. 1, Pp. 1-5). \nIn his report, Dr. Tomecek noted that an “MRI scan performed on \n04/02/2020 showed degenerative disks at L2-3, L3-4, L4-5, and L5-S1.  I \ndid not appreciate any significant disk herniations.  There was no significant \nlumbar spondylosis and stenosis, and no cauda equina compression.” \n(Resp. Ex. 1, P. 3).  When asked whether the claimant’s present diagnosis \n\nGRUBBS - G506221  33\n  \n \n \ncan be attributed to his work-related injury, Dr. Tomecek responded that \n“we do not have a definitive diagnosis,” opining that:  \nThe patient has only had one left-sided \nsacroiliac joint injection.  He has undergone a \nL4 to the sacrum anterior and posterior \ninstrumented fusion and has only had x-rays \ndone post-operatively.  He has chronic low \nback pain in addition to thoracic pain.  He has \nhad a thoracic epidural steroid injection that \nhelped him quite a bit as well.  I feel it is a \nmedical necessity that further diagnostic \ntesting be performed.  I would recommend a \nthoracic and lumbar myelogram CT scan with \nflexion and extension views.  The diagnosis for \nchronic back pain after a lumbar fusion can be \nvery difficult to determine.  Before making a \nfinal diagnosis, I feel that careful diagnostic \ntesting of the fusion is required. (Resp. Ex. 1, \nP. 4). \n \nDr. Tomecek believes it is necessary to undergo further \ntesting, as: \nMalposition of the hardware and \npseudoarthrosis can also cause symptoms \nsimilar to this patient’s symptoms.  In addition, \nit is not uncommon at all for a patient to have \nadjacent level disease and herniated disks at \nlevels next to the fusion.  This patient had \ndegenerative disks on his pre-op MRI at \nbasically every level of his lumbar spine.  He \ncould have an adjacent level herniated disk, \nand this would not be diagnosed on a plain x-\nray, which is all that he has had after his \noperation.  Id. \n \nMore importantly, upon review of the claimant’s records, Dr. \nTomecek found that the claimant “did not get significant improvement with \nthe lumbar fusion,” considering his persistent pain and need for medication. \n\nGRUBBS - G506221  34\n  \n \n \nThis, he opines, warrants further diagnostic testing as well.  (Resp. Ex. 1, P. \n5). \nDr. Tomecek’s opinion is clear that performing additional surgery on \nthe claimant without further diagnostic testing would be premature.  The \nclaimant’s history of extensive pre-existing degenerative disc disease and \nfailure to respond to his previous surgery indicates that there are underlying \nissues that have not been addressed to date.  Further, Dr. Tomecek’s \nreview of the claimant’s medical records bears greater weight than Dr. \nBlankenship’s, as Dr. Tomecek’s findings highlight Dr. Blankenship’s \nongoing failure to properly investigate or treat the underlying cause of the \nclaimant’s concerns prior to recommending an invasive surgery, which itself \nwarrants disregarding Dr. Blankenship’s findings. \nDr. Tomecek is correct: there have been no appropriate diagnostic \ntests that would lead the Commission to the conclusion that the claimant \nshould be entitled to additional surgery without more information.  For this \nreason, I believe the ALJ’s findings should be reversed. \nOur Rules require that to prevail on a request for additional \ntemporary total disability benefits, the claimant must prove by a \npreponderance of the evidence that he is totally incapacitated from earning \nwages and remains in his healing period.  Hickman v. Kellogg, Brown & \nRoot, 372 Ark. 501, 277 S.W.3d 591 (2008).  The healing period ends when \n\nGRUBBS - G506221  35\n  \n \n \nthe employee is as far restored as the permanent nature of his injury will \npermit, and if the underlying condition causing the disability has become \nstable, and if nothing in the way of treatment will improve that condition, the \nhealing period has ended.  Id.  The determination of when the healing \nperiod has ended is a factual determination for the Commission.  Id. \nIn his opinion, the ALJ found that the claimant remains within his \nhealing period based on Dr. Blankenship’s recommendation for surgery and \nDr. Tomecek’s opinion that the claimant would need additional medical \ntreatment.  (Op., P. 8).  However, disregarding Dr. Blankenship’s opinion for \nthe reasons set forth above, there is no indication from Dr. Tomecek that \nthe claimant is wholly incapacitated from earning wages.  Even if the \nclaimant requires additional treatment, there is nothing in Dr. Tomecek’s \nopinion that states that the claimant is unable to work at this juncture.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":57270,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G506221 ROGER GRUBBS, EMPLOYEE CLAIMANT SOUTHERN PERSONNEL MANAGEMENT, INC./ CABINET SHOP, INC., EMPLOYER RESPONDENT NO. 1 AMTRUST NORTH AMERICA, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","outcome":"reversed","outcomeKeywords":["reversed:1","granted:1"],"injuryKeywords":["cervical","strain","thoracic","lumbar","neck","back","ankle","hip"],"fetchedAt":"2026-05-19T22:29:45.503Z"},{"id":"full_commission-H304280-2024-05-21","awccNumber":"H304280","decisionDate":"2024-05-21","decisionYear":2024,"opinionType":"full_commission","claimantName":"Larry Zintel","employerName":"Pulaski County Road & Bridge","title":"ZINTEL VS. PULASKI COUNTY ROAD & BRIDGE AWCC# H304280 MAY 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Zintel_Larry_H304280_20240521.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Zintel_Larry_H304280_20240521.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H304280 \n \nLARRY M. ZINTEL, \nEMPLOYEE \n \nCLAIMANT \nPULASKI COUNTY ROAD & BRIDGE,  \nEMPLOYER \n \nRESPONDENT \nAAC RICK MANAGEMENT SERVICES, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 21, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MARK A. PEOPLES, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \n \n ORDER \n The parties in the above-styled matter have filed a joint MOTION TO \nSTAY PROCEEDINGS/APPEAL.  The Full Commission grants the parties’ \nmotion. \n An administrative law judge filed an opinion on March 5, 2024.  The \nadministrative law judge found, among other things, that the claimant \nproved he sustained a compensable injury.  The administrative law judge \nawarded medical treatment and temporary total disability benefits.  The \nrespondents filed a timely notice of appeal to the Full Commission.   \n The parties have now filed a joint MOTION TO STAY \nPROCEEDINGS/APPEAL and state that they have reached a tentative \n\nZINTEL - H304280  2\n  \n \n \nsettlement agreement.  The parties state, among other things, that an \n“automatic stay” in United States Bankruptcy Court “precludes the workers’ \ncompensation claim from moving forward without permission to do so.”  The \nparties do not cite any supporting authority and have not submitted an order \nfrom United States Bankruptcy Court. \n Nevertheless, the parties jointly pray that the claim be held in \nabeyance for a period of up to six months, and the parties ask that the \npending appeal be reinstated should the claim not be resolved by Joint \nPetition settlement.  The Full Commission therefore grants the parties’ joint \nmotion. \n IT IS SO ORDERED.    \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2121,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H304280 LARRY M. ZINTEL, EMPLOYEE CLAIMANT PULASKI COUNTY ROAD & BRIDGE, EMPLOYER RESPONDENT AAC RICK MANAGEMENT SERVICES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 21, 2024","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.507Z"},{"id":"alj-H302222-2024-05-21","awccNumber":"H302222","decisionDate":"2024-05-21","decisionYear":2024,"opinionType":"alj","claimantName":"John Jaramillo","employerName":"Ghan & Cooper Construction","title":"JARAMILLO VS. GHAN & COOPER CONSTRUCTION AWCC# H302222 MAY 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JARAMILLO_JOHN_H302222_20240521.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JARAMILLO_JOHN_H302222_20240521.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H302222 \n \nJOHN JARAMILLO, Employee      CLAIMANT \n \nGHAN & COOPER CONSTRUCTION, Employer   RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier/TPA     RESPONDENT \n \n \n OPINION FILED MAY 21, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn April 10, 2023, the claimant filed an AR-C requesting various compensation benefits \nin  which he alleged injuries  to  his bilateral  knees on  or  about March  20,  2023. The  claim  was \ndenied in its entirety.  \nThe claimant retained the services of Michael L. Ellig, and a deposition was scheduled at \nMr. Ellig’s office;  however,  the  claimant  did  not  appear,  nor  has  he  made  contact  with  his \nattorney  since  that  time. Mr. Ellig entered  a  Motion  to  Withdraw  as  Counsel.  The  Commission \ngranted the motion on September 26, 2023. No further action was taken in this claim. \n On January 3, 2024, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. A hearing was scheduled for April 25, 2024. Notice of that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on March  4,  2024. \n\nJaramillo – H302222 \n \n-2- \nUnited States Postal Department records indicate that claimant received and signed for the notice \non March 11, 2024. Despite having received notice of the scheduled hearing, the claimant failed \nto appear at the hearing and has failed to respond to the motion in any form or manner. \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2719,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H302222 JOHN JARAMILLO, Employee CLAIMANT GHAN & COOPER CONSTRUCTION, Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier/TPA RESPONDENT OPINION FILED MAY 21, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, A...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:54:32.891Z"},{"id":"alj-H102436-2024-05-21","awccNumber":"H102436","decisionDate":"2024-05-21","decisionYear":2024,"opinionType":"alj","claimantName":"Valerie White","employerName":"Desha County Judge","title":"WHITE VS. DESHA COUNTY JUDGE AWCC# H102436 MAY 21, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WHITE_VALERIE_H102436_20240521.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WHITE_VALERIE_H102436_20240521.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H102436 \n \nVALERIE WHITE, EMPLOYEE         CLAIMANT \n \nDESHA COUNTY JUDGE, EMPLOYER             RESPONDENT \n    \nAAC, CARRIER/TPA                       RESPONDENT \n \n \nOPINION FILED 21 MAY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 22 February 2024 in McGehee, Arkansas. \n \nMr. Mark Peoples appeared for the claimant. \n \nMr. Jason Ryburn, of the Ryburn Law Firm, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 22 February 2024 in McGehee, Arkansas, after \nthe parties participated in a prehearing telephone conference on 12 September 2023. The \nsubsequent Prehearing Order, admitted to the record without objection as Commission’s \nExhibit No 1, was entered on the day following the conference. The Order stated the \nfollowing ISSUES TO BE LITIGATED: \n1.  Compensability of an injury to the claimant’s arm/elbow. \n2.  Medical benefits. \n3.  Whether the statute of limitations bars the claims. \n4.  Attorney’s fees. \nAll other issues are reserved. \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire Responses, \nwere incorporated into the Prehearing Order.  \nThe claimant CONTENDS: \n\nWHITE- H102436 \n2 \n \nThat she sustained an injury to her arm/elbow as a compensable consequence of her \nshoulder injury and that she is entitled to medical treatment related to those injuries. She \nfurther contends that her claim is controverted, entitling her attorney to the maximum \nstatutory fees. \nThe respondents CONTEND: \nThat the claimant had an accepted shoulder injury. She filed an AR-C on 2 January \n2022, was treated, and was released at maximum medical improvement (MMI) on 18 April \n2022. The AR-C was dismissed on 1 May 2023. A subsequent AR-C was then filed on 31 \nJuly 2023 alleging a compensable consequence in an elbow injury. The statute of limitations \nbars any claims related or growing out of a 17 November 2020 injury. They further contend\n1\n \nthat she did not sustain a compensable arm/elbow injury and that all appropriate benefits \nwere paid. \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on or about 17 November 2020, at \nwhich time the claimant sustained a compensable shoulder injury. \n \n3.  The respondents accepted that shoulder injury as compensable. \n \n4.  The respondents have controverted this claim as it relates to the alleged arm/elbow \ninjury. \n \n5.  The parties stipulated that the applicable weekly compensation rates are $354.00 for \nTemporary Total Disability and $266.00 for Permanent Partial Disability.\n2\n \n \nThe claimant was the sole WITNESS testifying at the hearing. \nAdmitted into evidence were Commission’s Exhibit No 1 (the 13 December 2023 \nPrehearing Order), Claimant’s Exhibit No 1 (12 pages of medical records), and Respondent's \n \n1\n See TR at 8. \n2\n See TR at 6. \n\nWHITE- H102436 \n3 \n \nExhibit No 1 (five pages of medical records and seven pages of non-medical records). Both \nparties submitted post-hearing briefs, which I have blue-backed to the record. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witness, \nobserving her demeanor, I make the following findings of fact and conclusions of law under \nACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3.  The claimant failed to prove by a preponderance of the evidence that her alleged \narm/elbow injuries are compensable injuries. \n \n4.  The claimant failed to prove by a preponderance of the evidence that her alleged \narm/elbow injuries are a compensable consequence of her accepted shoulder injury. \n \n5.  Because the claimant failed to prove a compensable claim, whether she met her \nburden in proving that the filing was timely is moot. I am, therefore, declining to \naddress the statute of limitations issue. \n \n6.  Consistent with these findings, the claimant failed to prove by a preponderance of \nthe evidence that she is entitled to the requested benefits and associated attorney’s fee. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \nClaimant Valerie White \nThe claimant is a 61-year-old female who was working at the Desha County \nCourthouse’s Tax Collector’s Office on or about 17 November 2020 when she fell down some \nstairs. She was helped up and taken to the McGehee Family Clinic, where she reported \nbeing seen by Dr. Pierce. According to the claimant, her right shoulder was hurting at the \ntime, and she was having difficulty moving it. She filed a workers’ compensation claim, \nwhich the respondents accepted, and she eventually underwent right shoulder surgery in \nMarch of 2021. [TR at 9-11.] \n\nWHITE- H102436 \n4 \n \nAccording to the claimant, she began having right elbow pain in June or July of 2022. \nShe said that a request for a nerve conduction study was not approved by the respondents. \nA nerve conduction study was eventually performed in January of 2023. [TR at 13-14.] She \ntestified that she had not benefited from any of the prescribed medications and that her \nelbow was still causing her problems at the time of the hearing. The claimant testified \nfurther that she wanted to “get it looked at further,” and that another provider ordered an \nMRI, but she left those records at home. [TR at 15.] “He did an MRI, but he did it on my \nneck, thinking there was some type of, I guess, nerve or whatever deal with the spine or \nwhatever, but like I said, I don’t remember what the results was; but I’m still dealing with \nthis problem.” Id. \nThe claimant stated that she experiences discomfort, numbness, and tingling that \nmostly bothers her while working at a computer. [TR at 16.] \nOn cross examination, the claimant explained that she underwent two shoulder \nprocedures, a rotator cuff repair and a manipulation under anesthesia. She acknowledged a \nphysician released her at MMI with no impairment on 18 April 2022 [Resp. Ex. No 1 at 5] \nbut said that she “didn’t quite understand it” because she still had issues with her shoulder. \nShe also confirmed that she had returned to work at full duty. [TR at 18.] \nThe claimant agreed that her 26 January 2022 Form C only listed a “right shoulder” \ninjury [Resp. Ex. No 1 at 7] but took issue with clinic notes from 20 November 2020 [Resp. \nEx. No 1 at 1] that indicated her reporting some right elbow pain radiating down to her \nwrist in the days just after her fall. [TR at 20-22.] She acknowledged a 2020 X-ray report \nwith a negative finding for her right elbow and testified that “elbow pain [was] going down \n[her] arm, that existed in 2020....” [TR at 24.] \nThat exchange continued: \n\nWHITE- H102436 \n5 \n \nQ:  Okay. And so, it’s—I believe, earlier, you testified that it started in 2022, \nthis right elbow to the arm pain, but now that you’ve reviewed these records, \nit may have started in 2020, is that right? \n \nA:  That’s correct, but what I’m saying—okay, what I’m saying, okay, yes, \nduring 2020 is when I fell. Like I say, I was in so much pain during that time, \nit was that right arm. You call it shoulder, arm, elbow, but it was that right \nside. \n \nId. \n The claimant went on to explain that at the time of the filing of her 31 July 2023 \nForm C [Resp. Ex. No 1 at 11], her elbow was hurting. “... I know in my terms, not medical, \nmy elbow it hurts. It goes down to numb. I go numb three fingers. My right hand three, \nfour, and five, the fingers.” [TR at 26.] She acknowledged a right wrist diagnosis of carpel \ntunnel syndrome but could not say whether her complained-of symptoms were due to the \ncarpel tunnel problems. “I wouldn’t have an idea. I don’t know. I don’t know anything about \nthe carpel tunnel,” she said. Id. \nThe claimant’s cross examination went on with several questions around what the \nclaimant felt in her hand, wrist, and elbow versus what was in the medical notes and what \nwas included in her Workers’ Compensation filings. And she confirmed that the \nrespondents had not been responsible for the billing of her doctors visits for her hands, \nwrist, or elbow. [TR at 27-32.] Her cross examination closed with, “Do you know of—has any \ndoctor found something in your elbow that they can point to and say, “This is what’s wrong \nwith our elbow”? She responded, “No, no. No, not that, no.” [TR at 34.] Her testimony \nconcluded shortly afterwards. \nMedical Evidence \nIn support of her claim, Ms. White submitted some clinic notes and a neurography and \nelectromyography (EMG) report. [Cl. Ex. No 1.] A 16 December 2022 note reflects in the HPI \nsection that she was having some numbness in her hands after “her hands started out being \n\nWHITE- H102436 \n6 \n \ncold then the numbness came on.” The note also states that “ibuprofen doesn’t help her \nhands.” The provided portions of that clinic note do not include an impression, diagnosis, or \nplan. \nThe 5 January 2023 neurography and EMG report notes an onset of right-hand \nnumbness, tingling, and weakness onset in June or July of 2022 and concluded that she has \n“mild carpal tunnel on right side.” \nThe submitted portion of a clinic note from her 20 February 2023 visit does not include \nan impression, diagnosis, or plan, but lists her complaint as follows: \nHas been doing good. Has had surgery twice on her shoulder and is still \nhaving trouble. Has trouble raising her arm. She does exercises at home. She \nworks at the tax collector’s office. Has had NCV EMG bilateral uppers. When \nshe wakes up in the morning her arms hurt. Takes ibuprofen for pain. Says \nthat her right arm aches from the shoulder down to the elbow. Has not had \nan MRI of her neck. Is having lots of pain and she rates it at a 5 or 6. \n \nShe presented to the same clinic again on 4 May 2023, complaining that her fingers \nwere staying cold and hurting worse, with the left hand feeling colder than the right. The \nnote states that she reported still having problems with her shoulder and needing to do \nmore strengthening exercises. The plan from that visit included prescribing Procardia for \nher hand, wearing gloves at work to keep her hands warm, and doing shoulder exercises. \nAmong the records submitted to the record by the respondents were a clinic note from \n20 November 2020 that reflected some arm and elbow pain, but an X-ray report that same \nday showed no remarkable pathology of the right elbow. [Resp. Ex. No 1.] Clinic notes \nsubsequent to her shoulder surgery show that she received an injection in her right \nshoulder on 31 March 2022 and that on 18 April 2022 she was found to be stable and \nreassured that she “had a full recovery with no restrictions.” \nThe respondents also submitted copies of her 26 January 2022 Form AR-C that only \nindicated a right shoulder injury, a 1 May 2023 Order dismissing her claim without \n\nWHITE- H102436 \n7 \n \nprejudice (and noting that she did not oppose that dismissal at the time, according to a 14 \nMarch 2023 email to the Commission), and her 31 July 2023 Form AR-C that indicated \n“elbow problems as a compensable consequence of shoulder injury.” \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the prehearing conference, are outlined above. It \nis settled that the Commission, with the benefit of being in the presence of the witness and \nobserving his or her demeanor, determines a witness’ credibility and the appropriate weight \nto accord their statements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 \nS.W.2d 522 (1999).   \nA.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT HER ALLEGED ARM/ELBOW INJURIES ARE \nCOMPENSABLE INJURIES. \n \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving by a \npreponderance of the evidence that she sustained a compensable injury as the result of a \nspecific incident. Ark. Code Ann. § 11-9-102(4)(E)(i). A compensable injury must be \nestablished by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-\n102(4)(D). Objective medical findings are those findings that cannot come under the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Causation does not \nneed to be established by objective findings when the objective medical evidence establishes \nthat an injury exists and other nonmedical evidence shows that it is more likely than not \nthat the injury was caused by an incident in the workplace. Bean v. Reynolds Consumer \nProds., 2022 Ark. App 276, 646 S.W.3d 655, 2022 Ark. App. LEXIS 276, citing Wal-Mart \nStores, Inc. v. VanWagner, supra. \nThe claimant alleges that her injuries were the result of a specific incident—namely the \n17 November 2020 fall. The claimant must establish four (4) factors by a preponderance of \nthe evidence to prove a specific incident injury: (1) that the injury arose during the course of \n\nWHITE- H102436 \n8 \n \nemployment; (2) that the injury caused an actual harm that required medical attention; (3) \nthat objective findings support the medical evidence; and (4) that the injury was caused by \na particular incident, identifiable in time and place. Cossey v. G. A. Thomas Racing Stable, \n2009 Ark. App. 666,5, 344 S.W.3d 684, 689. A causal relationship may be established \nbetween an employment-related incident and a subsequent physical injury based on the \nevidence that the injury manifested itself within a reasonable period of time following the \nincident, so that the injury is logically attributable to the incident, where there is no other \nreasonable explanation for the injury. Hall v. Pittman Construction Co., 234 Ark. 104, 357 \nS.W.2d 263 (1962). \nThe claimant, however, offers little evidence to support a claim for a compensable injury \nto her elbow or arm. She testified generally that she has “problems” with her elbow and \nthat she experienced some numbness into her fingers. The scant medical notes that she \nprovides in support of her claim date from more than two years after her fall, only mention \nsome arm soreness in passing, and seem to focus on her complaints of her hands feeling \ncold and numb. Indeed, the only note that ultimately addresses a plan for care primarily \nrelates to addressing the concerns about her hands—not her elbow. The EMG report, which \nconcludes mild right side carpel tunnel, states that her hand symptoms did not start until \nJune or July of 2022. The claimant made no effort to link her carpel tunnel diagnosis to the \nfall. And she reports that she experiences trouble with her hand feeling cold and numb \nwhile working on her computer, which would be consistent with carpel tunnel problems. \nThe record lacks credible evidence that would tie her more recent elbow or arm \ncomplaints to her fall back in 2020, and the claimant does not offer other credible testimony \nto support a finding that any arm or elbow problems are attributable to the workplace \nincident in 2020. Accordingly, I do not find that the claimant has proven by a \npreponderance of the evidence that she suffered a compensable injury to her arm or elbow. \n\nWHITE- H102436 \n9 \n \nB.   THE CLAIMANT FAILED TO PROVE BY A PREPONDERANCE OF THE \nEVIDENCE THAT HER ALLEGED ARM/ELBOW INJURIES ARE A \nCOMPENSABLE CONSEQUENCE OF HER ACCEPTED SHOULDER INJURY. \n \nIn affirming the Commission’s finding of a compensable consequence in another case, \nthe Court recently explained: \nArkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires an \nemployer to provide an injured employee such medical services as may be \nreasonably necessary in connection with the injury received by the \nemployee. When the primary injury is shown to have arisen out of and in the \ncourse of employment, the employer is responsible for any natural \nconsequence that flows from that injury. For this rule to apply, the basic test \nis whether there is a causal connection between the injury and the \nconsequences of such. The burden is on the employee to establish the \nnecessary causal connection. Whether a causal connection exists between two \nepisodes is a question of fact for the Commission.  \n \nNucor Yamato Steel Co. v. Echols, 2023 Ark. App. 43, 660 S.W.3d 341, 2023 Ark. App. \nLEXIS 58 (internal citations omitted). \nIn that case, the claimant worked in steel production and claimed that he suffered an \ninjury to his left shoulder as a result of favoring it in the course of his labors after surgical \nrepair of an accepted and surgically repaired rotator cuff tear to his right shoulder. In \naffirming that award, the Court noted credible medical evidence of the claimant’s \n“overusing” his left side and objective findings consistent with that overuse and the \nresultant injury. \nHere, I do not find that the claimant met her burden of proving by a preponderance of \nthe evidence that she suffered arm or elbow injuries as a natural and compensable \nconsequence of her accepted shoulder injury. The facts here are clearly different from those \nconsidered in Nucor. Instead of making a logical connection between an injury related to \nher accepted shoulder injury, the claimant simply suggests that because she fell in 2020 \nand experienced a compensable right shoulder injury, any other problems or symptoms \nwith her right arm must also be connected to that shoulder injury. She fails, however, to \n\nWHITE- H102436 \n10 \n \nadvance credible evidence of a causal connection between the two. Her claim for benefits for \ninjuries alleged as compensable consequences of her accepted shoulder injury must, \ntherefore, fail. \nC.   THE STATUTE OF LIMITATIONS ISSUE IS MOOT. \n \nOn July 31, 2023, the claimant filed her Form C stating that she “developed elbow \nproblems as a compensable consequence of shoulder injury.” The respondents contend, \namong other things, that this filing was not timely. In facing a challenge on the statute of \nlimitations, the claimant must prove that she timely made her filing within the applicable \nperiod for filing a claim for benefits. Wynne v. Liberty Trailer & Death & Permanent Total \nDisability Trust Fund, 2021 Ark. App. 374, 636 S.W.3d 348, 2021 Ark. App. LEXIS 394. \nBecause the claimant failed to prove a compensable injury, I am not addressing whether \nher claim was timely filed. \nD.   BECAUSE NO BENEFITS ARE BEING AWARDED, THE CLAIMANT IS NOT \nENTITLED TO AN ATTORNEY’S FEE. \n \nConsistent with the findings above, the claimant has not met her burden of proving by a \npreponderance of the evidence that she is entitled to benefits that would entitle her to an \naward of an attorney’s fee. \nV.  ORDER \n     Consistent with the above Findings of Fact and Conclusions of Law, this claim is \nDENIED AND DISMISSED.  \nIT IS SO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":18852,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H102436 VALERIE WHITE, EMPLOYEE CLAIMANT DESHA COUNTY JUDGE, EMPLOYER RESPONDENT AAC, CARRIER/TPA RESPONDENT OPINION FILED 21 MAY 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge JayO. Howe on 22 February 2024 i...","outcome":"granted","outcomeKeywords":["affirmed:1","dismissed:1","granted:3","denied:2"],"injuryKeywords":["shoulder","neck","rotator cuff","wrist","carpal tunnel","back"],"fetchedAt":"2026-05-19T22:54:34.960Z"},{"id":"alj-H302869-2024-05-20","awccNumber":"H302869","decisionDate":"2024-05-20","decisionYear":2024,"opinionType":"alj","claimantName":"Barbara Tidwell","employerName":"Landers Toyota Nwa","title":"TIDWELL VS. LANDERS TOYOTA NWA AWCC# H302869 MAY 20, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/TIDWELL_BARBARA_H302869_20240520.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TIDWELL_BARBARA_H302869_20240520.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H302869 \n \nBARBARA TIDWELL,  Employee                                                         CLAIMANT \n \nLANDERS TOYOTA NWA, Employer                                                      RESPONDENT                                                        \n \nLM INSURANCE CORPORATION, Carrier                                              RESPONDENT                                                                                         \n \n \n OPINION/ORDER FILED MAY 20, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by DAVID C. JONES,  Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This  case  comes  on  for  review  following  a  hearing  on respondent’s Motion to \nDismiss. \n On March 1, 2023, claimant suffered a compensable injury as the result of a motor \nvehicle accident.  Respondent accepted the claim and paid some compensation benefits.  \nOn May 3, 2023, a Form AR-C was filed on claimant’s behalf and the parties subsequently \nengaged in the discovery process.  At some point Attorney York filed a Motion to Withdraw \nas Counsel and that motion was granted by the Full Commission in an Order filed October \n24,  2023.    No  further  action  was  taken  until respondent  filed its Motion  to Dismiss on \nFebruary 29, 2024. \nA hearing on the respondent’s motion was scheduled for May 8, 2024 and notice \nof the hearing was sent to claimant by certified mail at her last known address.  The notice \n\nTidwell – H302869 \n \n2 \n \nwas returned to the Commission as “Unclaimed.”  In addition, claimant signed a Waiver \nof Appearance sent to her by the respondent on March 28, 2024, indicating that she was \naware of her right to be heard on the respondent’s Motion to Dismiss and stating that she \nwas  waiving  that  right  as  well  as  her  right  to  appear at  the  hearing.  Claimant  did  not \nappear at the hearing on May 8, 2024. \n After my review of the respondent’s motion, the claimant’s response thereto, and \nall other matters properly before the Commission, I find that respondent’s Motion  to \nDismiss should be and hereby is granted.  This dismissal is pursuant to Commission Rule \n099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2511,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302869 BARBARA TIDWELL, Employee CLAIMANT LANDERS TOYOTA NWA, Employer RESPONDENT LM INSURANCE CORPORATION, Carrier RESPONDENT OPINION/ORDER FILED MAY 20, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Ark...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:54:30.834Z"},{"id":"alj-H201776-2024-05-17","awccNumber":"H201776","decisionDate":"2024-05-17","decisionYear":2024,"opinionType":"alj","claimantName":"James Braudrick","employerName":"Cal Ark International Inc","title":"BRAUDRICK VS. CAL ARK INTERNATIONAL INC. AWCC# H201776 MAY 17, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Braudrick_James_H201776_20240517.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Braudrick_James_H201776_20240517.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H201776 \n \nJAMES BRAUDRICK, \nEMPLOYEE                                                                                                              CLAIMANT \n \nCAL ARK INTERNATIONAL INC., \nSELF-INSURED/EMPLOYER                                                                           RESPONDENT  \n \nCCMSI, \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED MAY 17, 2024 \n \nHearing conducted on Wednesday, April 16, 2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Mr. James Braudrick, pro se, of Comanche, Oklahoma, did not appear in person at \nthe hearing.  \n \nThe Respondents were represented by the Honorable Guy Wade, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on April 16, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nAdmitted  into  evidence  was Respondent  Exhibit  1,  pleadings, correspondence, and  Motion  to \nDismiss   hearing   notice,   consisting   of   nine   pages, Commission   Exhibit   1,   pleadings, \ncorrespondence, and Certified U.S. Mail return receipts, consisting of eight pages. I have also blue-\nbacked Forms AR-1, AR-2, and AR-C, as discussed infra. \nThe record reflects on March 1, 2022, a Form AR-1 was filed in this case, reflecting that \nClaimant  purportedly fell while  walking on  February 15,  2022. Whether  he  was  walking  for  a \nwork-related purpose when he fell or what caused his fall is unclear from the evidentiary record. \n\nBRAUDRICK, AWCC No. H201776 \n \n2 \n \nNevertheless, the  Claimant  reported  his  injuries to  the  Respondent/Employer  the  same  day. \nRespondents filed a Form AR-2 on March 2, 2022, representing that the claim was controverted \nbut they would pay for the authorized Concentra medical bills.  The Claimant filed a Form AR-C \nthrough his then-attorney Mark Peoples on June 23, 2023, setting out his injuries. There he alleged \nhe sustained injuries to multiple body parts including ribs, elbow, knee, neck, and shoulder when \nhe fell. Respondents’ attorney Guy Wade entered his appearance on July 6, 2023. \nAttorney Peoples, on September 5, 2023, filed a Motion for Leave to Withdraw as Counsel, \nciting “differences of opinion regarding the prosecution of the claim” as the reason for the motion. \nThe Motion was granted on September 13, 2023. \nThe Respondents next filed  a Motion to Dismiss on February 14,  2024, requesting  this \nclaim be dismissed for lack of prosecution. The Motion further stated that the “claimant has done \nnothing to pursue this matter and has failed to even request any benefits.” The Claimant was sent \ncertified notice of  the Motion  to Dismiss  from  the  Commission  on February 15,  2024.  The \nClaimant received that notice on February 20, 2024, when it was left with him at his last known \naddress. The Claimant had twenty days to respond to the Motion to Dismiss. The Claimant did not \nrespond  to the Motion  to  Dismiss in  writing. In  accordance  with  applicable  Arkansas  law,  the \nClaimant was mailed due and proper legal notice of both the Respondents’ Motion to Dismiss and \nthe  hearing  notice  at  his current  address  of  record  via  the  United  States  Postal  Service  (USPS), \nFirst Class Certified Mail, Return Receipt Requested, and regular First-Class Mail. The certified \nnotice was returned without being served, but the regular First-Class mail notice was not returned. \nThe hearing took place on April 16, 2024. As previously mentioned, the Claimant did not show up \nto the hearing. \n \n\nBRAUDRICK, AWCC No. H201776 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings of fact and conclusions of law: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the April 16, 2024, \nhearing. \n \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that Claimant  has \nfailed to prosecute his claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted. \n \n5. This claim is hereby dismissed without prejudice.     \n \nDISCUSSION \n Consistent with AWCC Rule 099.13, the Commission scheduled and conducted a hearing, \nwith proper notice, on  the Respondents’ Motion  to Dismiss. Commission  Exhibit  1  provides \nmultiple Certified U.S. Mail Return Receipts. One receipt dated March 28, 2024, was not claimed \nby the Claimant. This receipt would have established that the Motion to Dismiss Hearing notice \nwas served on the Claimant. However, the same notice was also sent to the Claimant’s address of \nrecord by First-Class U.S. Mail on March 13, 2024, and did not return to the Commission. The \nClaimant  is  responsible  for  providing  the  Commission  with  his  current  address. Moreover,  on \nFebruary  20,  2024,  twenty-two  days  before  the  hearing  notice  was  sent  out,  the  Claimant  was \ndirectly served with notice of the Motion to Dismiss. That motion was served at the same address \nof record. Therefore, there is no reason for me to believe the Claimant did not receive the notice \nof  the  Motion  to  Dismiss  hearing  date  via  First-Class  U.S.  Mail. The Respondents’ counsel \n\nBRAUDRICK, AWCC No. H201776 \n \n4 \n \nappeared at the hearing and argued his motion. Thus, I find by the preponderance of the evidence \nthat reasonable notice was given to both parties.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant filed his Form AR-C on June \n23, 2023, and since then has taken no action in furtherance of this claim. When notice of the Motion \nto  Dismiss  was  received  by him on  February  20,  2024,  he  failed  to  respond  to  the  Motion  by \nobjecting and requesting a hearing in writing. In this regard, the Claimant has failed to do the bare \nminimum in prosecuting his claim. Therefore, I do find by the preponderance of the evidence that \nClaimant  has  failed  to  prosecute  his  claim  by  failing  to  request  a  hearing. Thus, Respondents’ \nMotion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":7181,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H201776 JAMES BRAUDRICK, EMPLOYEE CLAIMANT CAL ARK INTERNATIONAL INC., SELF-INSURED/EMPLOYER RESPONDENT CCMSI, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MAY 17, 2024 Hearing conducted on Wednesday, April 16, 2024, before the Arkansas Workers’ Compens...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["knee","neck","shoulder"],"fetchedAt":"2026-05-19T22:54:28.770Z"},{"id":"alj-H109799-2024-05-16","awccNumber":"H109799","decisionDate":"2024-05-16","decisionYear":2024,"opinionType":"alj","claimantName":"Gina Sallee","employerName":"Universal Health Services Inc","title":"SALLEE VS. UNIVERSAL HEALTH SERVICES INC. AWCC# H109799 MAY 16, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SALLEE_GINA_H109799_20240516.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SALLEE_GINA_H109799_20240516.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H109799 \nGINA SALLEE, EMPLOYEE CLAIMANT \n \nUNIVERSAL HEALTH SERVICES INC., EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER RESPONDENT \n \n OPINION FILED MAY 16, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by LAUREN A. SPENCER, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On April 10, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas.  \nA pre-hearing conference was conducted on February 8, 2024, and a pre-hearing order was filed on \nFebruary 15, 2024.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 \nand made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.   The prior opinion of the Full Commission is res judicata. \n            3.   The employee/employer/carrier relationship existed on December 7, 2021.  \nAt the pre-hearing conference the parties agreed to litigate the following issues: \n1.  Whether claimant is entitled to additional treatment for her neck injury. \n2.  Whether claimant is entitled to additional treatment on her left knee. \n\nSallee-H109799 \n2 \n \n3.  Whether claimant is entitled to treatment specifically for a left shoulder injury.\n1\n \nAll other issues are reserved by the parties. \nThe  claimant  contends  that “She is entitled to medical treatment as recommended by Drs. \nDougherty and Blankenship. The claimant reserves all other issues.” \nThe respondents contend that “Claimant is not entitled to additional treatment for her neck \nand left knee and contend the injury to the left shoulder is not compensable and claimant is not entitled \nto treatment. The respondent reserves all other issues.”               \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nFebruary 8, 2024 and contained in a pre-hearing order filed February 15, 2024 are hereby accepted as \nfact. \n 2.     Claimant has proven by a preponderance of the evidence that she is entitled to additional \nmedical treatment for her compensable neck and left knee injury.  \n 3.          Claimant  has  proven  by  a  preponderance  of  the  evidence  that her  left  shoulder  is  a \ncompensable injury, and as such, she is entitled to medical benefits for that injury which occurred on \nDecember 7, 2021. \n \n \n1\n While not expressed in clear terms in the prehearing order, the compensability of the left shoulder issue was litigated; \nrespondents contended that it was not compensable, and claimant sought benefits that could only be awarded if it was \ndetermined she suffered a compensable injury.   \n\nSallee-H109799 \n3 \n \n \n FACTUAL BACKGROUND \n This matter was previously tried before me on September 14, 2022. An opinion was issued on \nNovember 3, 2022, in which I found that claimant failed to prove that she suffered a compensable \ninjury on December 7, 2021, as she did not provide convincing evidence that she was acting in the \ncourse of her employment at the time of the accident. By so finding, I did not have to determine if \nclaimant’s injuries at issue at that hearing--to her neck and left knee--were compensable.   \n On June 9, 2023, the Full Commission reversed that decision, finding claimant did prove by \nthe preponderance of the evidence that she was acting within the course of her employment duties \nwith  the  respondent on  December  7,  2021, when  she  had  an  automobile  accident.  The  Full \nCommission then found that claimant proved she suffered compensable injuries to her neck and left \nknee.  All other issues were reserved.   \n That decision was not appealed to the Arkansas Court of Appeals and therefore is res judicata \non the issue of whether claimant suffered a compensable injury on December 7, 2021.  The parties \nagreed  that  the  transcript  from  the  previous  hearing,  including  the  medical  records, should be \nconsidered as an exhibit to this hearing, and I am treating it as such.  \n At  the  conclusion  of  the  hearing,  I  requested  the  parties  submit  briefs  in  support  of  their \nposition  on  the  issues  that were  being  litigated  in  this  hearing.  Those  briefs were  very  much \nappreciated and are blue backed to the record of this case. \nHEARING TESTIMONY \n \n Claimant was the only witness at the hearing.  Before she began testifying regarding the issues \nfor this hearing, I advised the parties that I remembered the testimony from the previous hearing and \nthat I had no question that claimant was in a severe automobile accident when she collided with a deer \non interstate 40 and as such, she did not need to go into great detail as to the severity of the accident.   \n\nSallee-H109799 \n4 \n \n \n Claimant said she was having pain in her neck, left knee and right shoulder immediately after \nthe accident and went to the emergency room the following day.  After seeing other physicians, she \nwas  eventually  treated  by  Dr.  James  Blankenship  for  her  neck  and  shoulder  and  Dr.  Christopher \nDougherty for her knee and shoulder.  Claimant testified that on March 14, 2024, she had surgery on \nher left shoulder which was performed by Dr. Dougherty.  She is currently receiving physical therapy; \nhowever, she completed a course of physical therapy and is now currently doing home exercises.  Dr. \nDougherty also has recommended surgery on claimant’s left knee but because respondent denied that \nportion of the claim, the surgery has been delayed.  \n Claimant  stated  that  she  was  still treating  with Dr.  Blankenship  for  her  neck.    Epidural \ninjections did not help her, and Dr. Blankenship believes that her alternative is either pain management \nor surgery.  While claimant does not want to have surgery on her cervical spine, she believes that it is \na necessity because she is not getting better.  She has headaches on a daily basis, and pain from her \nneck down from the base of her scull to her shoulders and into her left arm.  She did not complain of \nnumbness in her hands at this time.   \n On cross-examination, claimant repeatedly claimed that she could not remember after having \nimmediate  recall  of  the  question  she  was  asked  on  direct  examination.    However,  many  of  the \nquestions dealt with accidents that claimant had prior to December 7, 2021, and none of the injuries \nfrom those accidents were preventing claimant from working at the time of her compensable injury.   \nDEPOSITION OF DR. JAMES BLANKENSHIP  \n Dr. James Blankenship was deposed on March 25, 2024.  He is a board-certified neurosurgeon \nwho first saw claimant in September 2022.  She presented to his clinic with neck pain, suboccipital \npain, bilateral shoulder, and subscapular pain, as well as lower left extremity pain down to her hand, \nbilateral  numbness  in  both  upper  extremities  and  had  decreased  strength.    Dr.  Blankenship  said \n\nSallee-H109799 \n5 \n \n \nclaimant related this to a motor vehicle accident that happened in December 2021 and his information \nregarding her symptoms came from the claimant.  Dr. Blankenship found objective findings such as \nweakness in the triceps muscles in both arms as well as her hands.  Based on the radiographs, he found \nthat claimant had an anterolisthesis, meaning that she did not have good alinement at C4-C5 and C5-\n6 levels of her cervical spine.  The bilateral hand weakness was attributed to pressure on the spinal \ncord as well.  He clarified that he was unaware that claimant had an automobile accident on April 4, \n2023, and any entry he made on a form that related to that accident was probably due to him talking \ntoo fast and thinking about someone else.  It was his opinion that the accident of December 2021 was \nthe one that caused the malalignment of claimant’s cervical spine and the disc protrusion that he saw.  \n Dr. Blankenship testified that his opinion that was expressed in his December 7, 2023, letter \nto Dr. David Cannon; “I have told her there was not any surgical intervention that is going to help” \nwas  no  longer  his  opinion.    As  claimant  has  failed  multiple  attempts  at  conservative  treatment,  he \nbelieves surgical  intervention  is  now  appropriate  and  recommended a  cervical  fusion  with  titanium \nimplants at C4-5, C5-6, and C6-7.   \n On  cross-examination,  Dr.  Blankenship  said other  than  the  disc  protrusion,  he  had  no \nexplanation why claimant was having paresthesia and the weakness in her upper extremities, but he \ndid believe that surgery would help resolve the pain complaint that she was having.  He agreed that \nthe headaches could be related to the neck issues.   \n On redirect-examination, Dr. Blankenship was asked if a newer and clearer MRI would help \nhim see any changes that happened after the April 2023 accident.  While he was unsatisfied with the \nprevious  MRIs  that  he  had  seen, he  did  not  believe  that  that  was  going  to  change  his offering  of \nsurgery because he was able to see a misalignment in the cervical spine. \n \n\nSallee-H109799 \n6 \n \n \nREVIEW OF THE EXHIBITS \n \n Claimant submitted 150 pages of medical records. However, a detailed review of the records \nfor the neck and left knee injuries is not necessary.  For the former, Dr. Blankenship’s deposition \nexplained what he had done in treating claimant and that his last entry was not his current opinion; \nfor  the  latter,  Dr.  Chris  Dougherty answered  an  inquiry  from respondent, Sedgwick, regarding a \nmedical records review conducted by Dr. Owen Kelly (Cl. X 132), and in his response, clearly outlined \nhis opinion as to claimant’s condition and outlined his recommended course of treatment (Cl. X. 145). \nA further examination of the records relevant to the left knee and left shoulder claims will be addressed \nin the appropriate section of the adjudication. \n Respondent submitted as non-medical exhibits claimant’s deposition which was taken before \nthe September 14, 2022, hearing as well as some other documents which were a part of that record, \nand my opinion of November 3, 2022 (the relevance of which is not apparent, as it was reversed by \nthe Full Commission).  \nADJUDICATION \n \n Compensable  injuries  must  be  established  by  medical  evidence  supported  by  objective \nfindings, Ark. Code Ann. § 11-9-102(4)(D), and objective findings are those that cannot come under \nthe voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Complaints of pain are not \nobjective medical findings. Ark. Sec'y of State v. Young, 2018 Ark. App. 508, at 8, 559 S.W.3d 331, 336. \nHowever, once it has been established that a claimant has sustained a compensable injury, she is not \nrequired to offer objective medical evidence to prove entitlement to additional benefits, Ark. Health \nCtr. v. Burnett, 2018 Ark. App. 427, at 9, 558 S.W.3d 408, 414. The Full Commission found claimant \npresented objective  evidence  to  support  her claim for  neck  and  left  knee  injuries, which makes it \nunnecessary for her to provide new objective findings for the treatment she seeks for those injuries.     \n\nSallee-H109799 \n7 \n \n \nA. The neck injury \n  As summarized above, Dr. Blankenship believes claimant has failed at conservative treatment, \nand Claimant  seeks  additional  medical  treatment  for  her cervical  spine  as recommended  by  Dr. \nBlankenship. Respondents  had Dr.  Blankenship’s records  reviewed  by  Dr.  Owen  Kelly,  an \northopedist, who offered the opinion that “The isolated accident of 12/7/21 is not responsible for \nthe findings of her cervical spine nor is it responsible for her treatment.”  Dr.  Kelly  attributed \nclaimant’s condition to degenerative disease of the cervical spine.   \n In reviewing Dr. Kelly's report, I give more credibility to the doctor that has examined a patient \nthan I do to one that merely reviewed records. Dr. Kelly’s statement regarding any degenerative disc \ndisease he  saw is  irrelevant;  \"a  pre-existing  disease  or  infirmity  does  not  disqualify  a  claim  if  the \nemployment  aggravated,  accelerated,  or  combined  with  the  disease  or  infirmity  to  produce  the \ndisability  for  which  compensation  is  sought.\" Fulton  Cty.  Hosp.  v.  Herring,  2020  Ark.  App.  221,  597 \nS.W.3d 162. A person with degenerative disc disease without symptoms or limitations is not barred \nfrom benefits; the Full Commission’s decision in this case was that claimant was working at her job \nwhen she was injured, and there is no medical evidence she was restricted in any way before that day. \nAs  such,  I  find she  has  proven  by  a  preponderance  of  the  evidence  that  the  medical  treatment  as \nrecommended by Dr. Blankenship is reasonable and necessary. \nB. The left knee injury. \nDr. Dougherty had been treating claimant for some time before he recommended surgery \nfor her compensable knee injury.  Dr. Kelly reviewed the records from Dr. Dougherty and opined \nthat the MRIs that he examined showed:  \n“... finding significant with  cartilage  loss on  the  medial  compartment, \ndegenerative changes, and an  intact ACL.  Also,  two  independent  radiology \nreadings document an intact anterior cruciate ligament. The treating physician \nnotes she would need to undergo ACL construction. There's no evidence of \n\nSallee-H109799 \n8 \n \n \nACL  compromise  or  loss  of  integrity.  The  findings  noted  in  her  knee  are \ntypical of an age-related wear pattern including a degenerative meniscal tear, \nmost specifically on the medial side involving the anterior cartilage.... Ms. Sallee \nsustained  no  identifiable  injury  to  the  left  knee  joint  or  cervical  spine  at  the \ntime  of  the  incident....  The  findings  noted  on  the  previous  imaging  are \nconsistent with non-traumatic findings.”   \n \nDr.  Daugherty responded to Dr. Kelly’s medical records review in a letter  of  February  20, \n2024, wherein he stated:  \n1.   I  have  read  the  opinion  of Dr. Kelly  and  agree with  the  observations  he \nformulated  from  her  imaging  studies. Her clinical  exam  does  not,  however, \ncorrelate  with  her  imaging  studies.  She  has  a  clear Lachman’s and  anterior \ndrawer  on  exam  indicating  an  incompetent  ACL. Her  clinical  exam  is \nconsistent  with  a  Sherman Type-1 ACL  tear  which  is  an  avulsion  of  the \nfemoral side of the ACL without restriction. \n2.  The car accident has relation to the current injury, and it caused the injury \nin question, and this did aggravate the condition of the meniscus tear. \n3.  Without ACL repair, the patient will progress with arthritis and the plan of \nAC repair is not documented to increase the development of arthritis. \n4.  Reasonable treatment is ACL repair with post op PT and pre-op labs for \nsurgery. \n \n Dr. Kelly’s medical record review was of little use on this point; he could not possibly give a \nwell-informed  opinion  on  a  knee  injury  without  conducting  the same physical  examination as her \ntreating physician.  As the existence of a compensable knee injury has already been established as a \nmatter of law, claimant has met her burden of proof that the recommended surgery to her left knee is \nreasonable and necessary.  \nC. The left shoulder injury:    \n The claim for a left shoulder injury was not litigated in the previous hearing, and therefore, it \nmust be established as (1) an injury arising out of and in the course of employment; (2) the injury \ncaused internal or external harm to the body which required medical services or resulted in disability \nor  death;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury  was  caused  by  a  specific  incident  identifiable  by  time  and  place  of  occurrence. Odd  Jobs  and \n\nSallee-H109799 \n9 \n \n \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630.   \n I noted on December 8, 2021, the day after the accident, claimant reported to the Emergency \nDepartment at Mercy Hospital in Fort Smith that she was having pain in her neck, left knee and left \nwrist.  During the course of that visit, she both denied any pain in her left shoulder (“Left shoulder: \nNormal. No swelling or tenderness. Normal range of motion. Normal strength. Normal pulse,”) (Cl. \nX. 21), and complained of it: (“She is tender to the left cervical paraspinal muscles in the left upper \ntrapezius into the left shoulder.”) (Cl. X. 17) Two weeks later, the records from Dr. Thomas Cheyne \nstate that claimant was complaining of left shoulder pain.  He did not do any objective testing during \nthat December 22, 2021, visit, but simply noted that claimant had a “left shoulder contusion.”  (Cl. \nX.  39).    On January 6, 2022, Dr. Cheyne recorded that claimant had a “strain of muscle(s)  and \ntendon(s) in the rotator cuff of left shoulder.”  Claimant  received physical  therapy  on  her  left \nshoulder,  and  when  conservative  care  did  not  provide  her  with  relief, Dr.  Dougherty  performed \nsurgery on that shoulder on March 14, 2024.  (Cl. X. 150).  In his pre-operative note, he stated without \nequivocation “Her injury occurred during a car wreck in December 2021.”   \n I  noted  in  my  opinion  from  the  first  hearing “it is obvious that claimant will engage in \ndeceptive  behavior when she believes it helps her.”  Nothing about her testimony in the second \nhearing changed my mind on that point; she was often evasive in cross-examination and professed \nto have memory problems (although she had no such issues during direct testimony).   However, my \nbelief that claimant will be less than truthful when she thinks it is to her benefit isn’t determinative \nhere; telling the doctors that her left shoulder was injured in the automobile accident and then having \nto undergo  a  surgery  on  that shoulder isn’t particularly beneficial.    With  no  testimony  or  medical \nrecords to the contrary, and with Dr. Dougherty’s conclusion that the accident caused the injury to \nher left shoulder, I find claimant has met her burden of proof that her left shoulder was injured in \n\nSallee-H109799 \n10 \n \n \nthe automobile accident of December 7, 2021. The Full Commission found this accident occurred \nduring the course of claimant’s employment.  As there are objective medical findings that she suffered \ninternal  bodily  harm on  this  portion  of  her  claim,  I  find the  treatment  recommended  by  Dr. \nDaughterty is reasonable and necessary.  \nORDER \n \n Claimant  has  proved  by  a  preponderance  of  the  evidence  that she  is  entitled  to  additional \nmedical treatment for her compensable neck injury as directed by Dr. Blankenship. \n Claimant  has  proved  by  a  preponderance  of  the  evidence  that  she  is  entitled  to  additional \nmedical treatment for her compensable left knee injury as directed by Dr. Dougherty. \n Claimant has proved by a preponderance of the evidence that she sustained a compensable \ninjury to her left shoulder on December 7, 2021, and is entitled to medical treatment for that injury as \ndirected by Dr. Dougherty.  \n Pursuant to A.C.A § 11-9-715(a)(1)(B)(ii), attorneys fees are awarded \"only on the amount of \ncompensation for indemnity benefits controverted and awarded.\" In this case, there was no claim that \nindemnity benefits have been controverted up to the date of the hearing, and as all issues other than \nmedical benefits were reserved, no attorney's fee can be awarded in this matter at this time. Claimant's \nattorney is free to voluntarily contract with medical providers pursuant to A.C.A. § 11-9-715(a)(4). \n Respondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $541.95. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":20573,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109799 GINA SALLEE, EMPLOYEE CLAIMANT UNIVERSAL HEALTH SERVICES INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., CARRIER RESPONDENT OPINION FILED MAY 16, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastia...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["neck","knee","shoulder","cervical","wrist","strain","rotator cuff"],"fetchedAt":"2026-05-19T22:54:26.683Z"},{"id":"alj-H204851-2024-05-15","awccNumber":"H204851","decisionDate":"2024-05-15","decisionYear":2024,"opinionType":"alj","claimantName":"Janet Foster","employerName":null,"title":"FOSTER VS. GOODWILL INDUSTRIES OF ARAWCC# H204851May 15, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/FOSTER_JANET_H204851_20240515.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FOSTER_JANET_H204851_20240515.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H204851 \n \nJANET FOSTER, Employee                                                                           CLAIMANT \n \nGOODWILL INDUSTRIES OF AR, Employer                                          RESPONDENT \n \nATA WORKERS’ COMP SI TRUST/RISK MGT., Carrier/TPA                 RESPONDENT                                                                                           \n \n \n OPINION FILED MAY 15, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On April 22, 2024, the above captioned claim came on for hearing at Fort Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on November  8,  2023 and  an \namended pre-hearing order was filed on February 23, 2024.  A copy of the pre-hearing \norder has been marked as Commission’s Exhibit #1 and made a part of the record without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   Claimant sustained a compensable hernia on June 6, 2022. \n 3.   Claimant was earning an average weekly wage of $717.88 which would entitle \nher  to  compensation  at  the  weekly  rates  of  $479.00  for  total  disability  benefits  and \n\nFoster – H204851 \n \n2 \n \n$359.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Temporary total disability benefits from December 19, 2022 through a date  \nyet to be determined. \n2.   Claimant’s entitlement to additional medical treatment. \n3. Claimant’s entitlement to a weight loss program. \n4. Attorney’s fee. \nAt the time of the hearing the claimant clarified that her request for temporary total \ndisability  benefits  would  end  as  of  March  31,  2023.    Claimant  also  acknowledged  that \nrespondent paid some temporary total disability benefits and would be entitled to a credit \nfor those benefits. \nThe  claimant  contends  she  is  entitled  to  temporary  total  disability  benefits  from \nDecember 19, 2022 until March 31, 2023.  The claimant contends that she is entitled to \nadditional  medical  treatment  since  the  December  19,  2022  surgery  was  done  without \nmesh  and  was  only  temporary  treatment  for  her  compensable  injury.    The  claimant \ncontends she is entitled to a weight loss program to be paid for by the respondents since \nher treating surgeon has recommended that she needs to lose weight before the mesh \ncan be  utilized regarding the surgical repair of the hernia.  The claimant contends that \nshe  has  made  a  good  faith  effort  to  lose  weight  and  unfortunately  has  been  unable  to \naccomplish the objective of losing enough weight to make her a suitable candidate for the \npermanent repair of her compensable hernia.  Claimant contends her attorney is entitled \nto an appropriate attorney’s fee. \nThe respondents contend that all appropriate benefits are being paid with regard \n\nFoster – H204851 \n \n3 \n \nto claimant’s compensable hernia sustained on June 6, 2022.  Temporary total disability \nbenefits were paid after Dr. Shamim’s surgery performed on December 19, 2022 until \nclaimant’s release in January of 2023.  The medical records do not support entitlement to \ntemporary  total  disability  benefits  after  that  timeframe.    Respondents  contend  that  the \nrequested weight loss program is not reasonable and necessary and that claimant’s need \nfor weight loss is preexisting.  Furthermore, it is premature to award a surgery with mesh \nwithout claimant first losing the requisite weight. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non November 8, 2023, and contained in an amended pre-hearing order filed February 23, \n2024, are hereby accepted as fact. \n 2.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she is entitled to additional medical treatment from Dr. Shamim.   \n 3.   Claimant has met her burden of proving by a preponderance of the evidence \nthat the proposed weight loss program at Metabolic Research Center is reasonable and \nnecessary medical treatment for her compensable injury. \n 4.   Claimant has met her burden of proving by a preponderance of the evidence \nthat she is entitled to temporary total disability benefits from December 19, 2022 \n\nFoster – H204851 \n \n4 \n \nthrough January 6, 2023.  Respondent is entitled to a credit for any temporary total \ndisability benefits previously paid. \n 5.   Claimant’s attorney is entitled to the maximum controverted attorney fee on \nany indemnity benefits which were unpaid. \n \n FACTUAL BACKGROUND \n The claimant was employed by the respondent as a career specialist.  Claimant’s \njob  duties  required  her  to  help  people  find  work  by  helping  them  with  their  resume; \nteaching  them  how  to dress  for  an interview;  and how  to  act during  an  interview.   She \nalso  performed  other  duties  such  as  putting  out  clothing  and  removing  old  clothing.  \nClaimant was also responsible for keeping a community room clean, swept, and mopped. \n On June 6, 2022, claimant was in the process of pulling on a table in the community \nroom to move it when she suffered a compensable hernia.   \n Claimant came under the care of Dr. Shamim, who in a report dated November 15, \n2022, noted that claimant had gained some weight since the last time he saw her.  He \nalso noted that claimant was having significant discomfort at the hernia site.  Dr. Shamim \nwent on to state: \n  Patient unfortunately has gained weight and is currently \n  not optimized for hernia repair.  However she is a very \n  symptomatic and my fear is that the patient is [going to] \n  have strangulation of the hernia.  As such I advised the \n  patient that we should most likely go ahead with that \n  hernia repair at this point in time without a mesh which \n  would at least buy a some time for her to lose weight in \n  the future and perform a standard of care hernia repair \n  with mesh at that time.  Patient voices understanding. \n  She does understand that this point in time with hernia \n  repair is just to ensure that she does not have any \n  complications, it is understood that the hernia will \n\nFoster – H204851 \n \n5 \n \n  eventually return especially if she stays at her current \n  weight.  Patient voices understanding.  At this point in \n  time we will post the patient for a hernia repair without \n  mesh. \n \n \n Dr.  Shamim  performed  the  hernia  repair  surgery  on  December  19,  2022 and \nclaimant returned to Dr. Shamim on January 6, 2023, for a follow-up examination.  In his \nreport of that date, Dr. Shamim noted that claimant was doing great with no active issues \nand that she felt essentially normal.  He also noted that claimant needed to proceed with \nweight loss in order to prevent a further occurrence and that if she did not lose weight she \nwould likely have another recurrence in the future. \n Claimant has filed this claim contending that she is entitled to additional medical \ntreatment for her compensable hernia injury.  She also contends that she is entitled to a \nweight loss program and temporary total disability benefits beginning December 19, 2022 \nand continuing through March 31, 2023.   \n \nADJUDICATION \n Claimant  contends  that  she  is  entitled  to  additional  medical  treatment  for  her \ncompensable hernia injury.  Claimant has the burden of proving by a preponderance of \nthe  evidence  that  she  is  entitled  to  additional  medical  treatment  for  her  compensable \nhernia injury.  Dalton v. Allen Engineering Co., 66 Ark. App. 201, 989 S.W. 2d 543 (1999).    \nI find that claimant has met her burden of proof.  As previously noted, Dr. Shamim \nin his report of November 15, 2022, noted that claimant was not optimized for a hernia \nrepair due to her weight.  However, he stated that claimant was very symptomatic and \nbelieved  that  claimant  was  going  to  have  a  strangulation  of  her  hernia;  therefore,  he \n\nFoster – H204851 \n \n6 \n \nrecommended that claimant undergo a hernia repair without mesh which would allow her \nsome  time  to  lose  weight  and  then  undergo  a  hernia  repair  with  mesh.    Dr.  Shamim \nperformed the hernia repair surgery without mesh on December 19, 2022.   \nIn  his follow-up report dated January 6, 2023,  Dr. Shamim noted that claimant \nneeded to proceed with weight loss in order to prevent a recurrence of her hernia.  He \nalso  indicated  that  she  should  follow  up  as  needed  and  that  she  had  been  counseled \nregarding alarm signs and her need to call back.  It is clear from a review of Dr. Shamim’s \nmedical records that he believed claimant would need additional medical treatment in the \nform of hernia repair with mesh when she had lost weight.  \nI find based upon this evidence that claimant has met her burden of proving by a \npreponderance of the evidence that she is entitled to continued medical treatment from \nDr. Shamim for her compensable hernia.   \nI also find that claimant has met her burden of proving by a preponderance of the \nevidence  that  she  is  entitled  to  a  weight  loss  program  at  Metabolic  Research  Center.  \nPursuant  to  A.C.A.  §11-9-508(a),  an  employer  is  required  to  provide  for  an  injured \nemployee such medical services as may be reasonably necessary in connection with the \ninjury  received.    What  constitutes  reasonable  and  necessary  medical  treatment  is  a \nquestion of fact for the Commission.  Shiloh Nursing & Rehab, LLC, v. Lawson, 214 Ark. \nApp. 433, at 3, 439 S.W. 3d 696, 698.  Weight loss treatment has been recognized as a \nmedical benefit which may be awarded if it is determined to be reasonable and necessary \nmedical  treatment  for a  compensable  injury.   Lybyer  v. Springdale  School  District,  219 \nArk. App. 77, 568 S.W. 3d 805.   \n Here, I find that claimant has met her burden of proving by a preponderance \n\nFoster – H204851 \n \n7 \n \nof the evidence that the proposed weight loss program is reasonable and necessary.  As \npreviously noted, Dr. Shamim in his report of November 15, 2022, indicated that claimant \nwas not currently optimized for her hernia repair surgery due to her weight.  However, Dr. \nShamim performed a hernia repair surgery without mesh due to the claimant’s symptoms \nand a fear of strangulation of the hernia.  In his report of January 6, 2023, Dr. Shamim \nindicated that claimant was in danger of a recurrence unless she lost weight.   \nOn  January  9,  2024,  claimant  was  evaluated  by her primary  care  physician,  Dr. \nLance Barton.  In his report of that date, Dr. Barton stated: \n  \nThis is to certify that Janet Foster has a BMI of 48.56 \n and has not been successful in many exercise programs \n and weight loss diets she has tried in the past.  She \n would benefit in the enrollment of Metabolic Research \n Center program for weight loss. \n \n \nBased upon the foregoing, I find that claimant has met her burden of proving by a \npreponderance of the evidence that the weight loss program is reasonable and necessary \nmedical treatment for her compensable hernia injury. \nThe last issue for consideration involves claimant’s request for temporary total \ndisability  benefits  from  December  19,  2022  through  March  31,  2023.    In  order  to  be \nentitled  to  temporary  total  disability  benefits,  claimant  has  the  burden  of  proving  by  a \npreponderance of the evidence that she remains within her healing period and that she \nsuffers a total incapacity to earn wages.  Arkansas State Highway & Transportation Dept. \nv. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).    \n After reviewing the evidence in this case, I find that claimant remained within her \nhealing period and that she suffered a total incapacity to earn wages from December 19, \n\nFoster – H204851 \n \n8 \n \n2022 through January 6, 2023.   \n First,  I  find  that  claimant  has  remained  within  her  healing  period  for  her \ncompensable  hernia  since  the  date  of  the  injury  on  June  6,  2022.    However,  after \nclaimant’s compensable injury she continued working for the respondent until December \n19,  2022,  when she underwent the surgery by Dr. Shammim.  Accordingly, claimant’s \ntotal  incapacity  to  earn  wages  began  on  December  19,  2022.    I  find  that  her  total \nincapacity to earn wages continued until January 6, 2023.  On January 6, 2023, claimant \nhad her follow-up appointment with Dr. Shamim who noted that she was doing great with \nno active issues and that she essentially felt normal.  Dr. Shamim placed limitations on \nthe claimant of a lifting restriction of 10 pounds for twelve weeks and 30 pounds thereafter.  \nDr. Shamim also placed these same restrictions in a “To Whom It May Concern” letter \nalso  dated  January  6,  2023.    While  claimant  testified  that  she  did  not  work  during  this \ntwelve week period of time and did not feel that she was physically capable of working \nduring that twelve week period of time, I note that on January 16, 2023, claimant applied \nfor unemployment compensation benefits.  In doing so, claimant indicated that she could \nbegin  work  immediately;  that  she  could  work  full  time;  and  that  she  did  not  have  any \ndisabilities that limited her ability to perform her normal job duties.  \n With  respect  to  this  issue,  it  should  be  noted  that  claimant  has  job  skills  which \nwould allow her to work at a sedentary type job.  As previously noted, claimant worked \nfor the respondent as a career specialist which included duties of helping individuals with \nresumes and teaching them how to dress and act during work interviews.  Furthermore, \nat the time of her deposition on January 9, 2024, claimant indicated she had been working \nfor a company at home since October 2023.  Claimant was working 40 hours per week, \n\nFoster – H204851 \n \n9 \n \nmaking $17.00 per hour performing a sit down job at her computer.  Thus, claimant clearly \nhad job skills which would allow her to work at a sedentary type job. \n Accordingly, I find that claimant’s total incapacity to earn wages ended as of \nJanuary 6, 2023, the date she was seen by Dr. Shamim.  Therefore, claimant is entitled \nto temporary total disability benefits from December 19, 2022 through January 6, 2023.  \nRespondent  is  entitled  to  a  credit  for  any  benefits  previously  paid during  this  period  of \ntime.  Claimant’s attorney is entitled to the maximum attorney fee on any unpaid indemnity \nbenefits during this period of time.   \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe  is  entitled  to  additional  medical  treatment  from  Dr.  Shamim  for  her  compensable \nhernia injury.  Claimant has also proven by a preponderance of the evidence that she is \nentitled  to  additional  treatment  in  the  form  of  a  weight  loss  program  at  the  Metabolic \nResearch  Center.    Claimant  is  entitled  to  temporary  total  disability  benefits  from \nDecember 19, 2023, and continuing through January 6, 2023.  Respondent is entitled to \na credit for any temporary total disability benefits previously paid. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable  to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \n\nFoster – H204851 \n \n10 \n \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $355.75. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":16750,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204851 JANET FOSTER, Employee CLAIMANT GOODWILL INDUSTRIES OF AR, Employer RESPONDENT ATA WORKERS’ COMP SI TRUST/RISK MGT., Carrier/TPA RESPONDENT OPINION FILED MAY 15, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastia...","outcome":"granted","outcomeKeywords":["granted:6"],"injuryKeywords":["hernia","back"],"fetchedAt":"2026-05-19T22:54:18.430Z"},{"id":"alj-H304705-2024-05-15","awccNumber":"H304705","decisionDate":"2024-05-15","decisionYear":2024,"opinionType":"alj","claimantName":"Bryan King","employerName":null,"title":"KING VS. DARDANELLE HOUSING AUTHORITYAWCC# H304705May 15, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KING_BRYAN_H304705_20240515.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KING_BRYAN_H304705_20240515.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H304705 \n \nBRYAN A. KING,  Employee                                                         CLAIMANT \n \nDARDANELLE HOUSING AUTHORITY, Employer                                RESPONDENT                                                        \n \nARKANSAS MUNICIPAL LEAGUE WCT, Carrier                                   RESPONDENT                                                                                         \n \n \n OPINION/ORDER FILED MAY 15, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents  represented  by MARY  K.  EDWARDS,  Attorney, North  Little  Rock, \nArkansas. \n \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On July 24, 2023, claimant filed Form AR-C alleging a compensable injury to his \nright  shoulder  on  August  10,  2023.    Since  that  time  the  claimant  has  not  requested  a \nhearing or taken any other action to prosecute his claim.  As a result, respondent filed a \nmotion  to dismiss this  claim on February  16,  2024.    A  hearing  was  scheduled  on  the \nrespondent’s motion for May 6, 2024 and notice of the hearing was sent to claimant by \ncertified mail and delivered on March 18, 2024.  Claimant did not appear at the hearing \nand has not responded to the respondent’s motion. \n After my review of the respondent’s motion, the claimant’s failure to appear at the \n\nKing – H304705 \n \n2 \n \nhearing  or  to respond to  the  respondent’s  motion, I find that respondent’s motion  to \ndismiss this  claim should  be  and  hereby  is  granted.    This  dismissal  is  pursuant  to \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":1980,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304705 BRYAN A. KING, Employee CLAIMANT DARDANELLE HOUSING AUTHORITY, Employer RESPONDENT ARKANSAS MUNICIPAL LEAGUE WCT, Carrier RESPONDENT OPINION/ORDER FILED MAY 15, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:54:20.488Z"},{"id":"alj-H304498-2024-05-15","awccNumber":"H304498","decisionDate":"2024-05-15","decisionYear":2024,"opinionType":"alj","claimantName":"Francis Ralston","employerName":null,"title":"RALSTON VS. TWIN RIVERS FOODS, INC.AWCC# H304498May 15, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/RALSTON_FRANCIS_H304498_20240515.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RALSTON_FRANCIS_H304498_20240515.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H304498 \n \nFRANCIS RALSTON,  Employee                                                           CLAIMANT \n \nTWIN RIVERS FOODS, INC., Employer                                                   RESPONDENT                                                        \n \nBRIDGEFIELD CASUALTY/SUMMIT, Carrier/TPA                                   RESPONDENT                                                                                         \n \n \n OPINION/ORDER FILED MAY 15, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by GUY ALTON WADE,  Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n Respondent accepted a compensable injury to claimant’s head on March 30, 2023.  \nAttorney Eddie Walker, on behalf of claimant, filed Form AR-C in August 2023 alleging \nthat in addition to the injury to his head, claimant had also suffered a compensable injury \nto  his  neck  and  shoulder.    Respondent  attempted  to  obtain  discovery  of  the  claimant \nwhich  included  claimant’s  deposition.    Claimant  did  not  appear  at  the  deposition  and \nAttorney Walker subsequently filed a Motion to Withdraw as Counsel.  This motion was \ngranted by Order filed March 6, 2024.   \nRespondent filed a motion to dismiss this claim and a hearing was scheduled on \nthe respondent’s motion for May 6, 2024. Notice of the hearing was sent to claimant by \n\nRalston – H304498 \n \n2 \n \ncertified mail at his last known address.  This notice was returned by the Post Office as \n“unclaimed.”  Claimant  did  not  appear  at  the  hearing  and has  not  responded  to  the \nrespondent’s motion. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2349,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304498 FRANCIS RALSTON, Employee CLAIMANT TWIN RIVERS FOODS, INC., Employer RESPONDENT BRIDGEFIELD CASUALTY/SUMMIT, Carrier/TPA RESPONDENT OPINION/ORDER FILED MAY 15, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian ...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":["neck","shoulder"],"fetchedAt":"2026-05-19T22:54:22.545Z"},{"id":"alj-H202874-2024-05-15","awccNumber":"H202874","decisionDate":"2024-05-15","decisionYear":2024,"opinionType":"alj","claimantName":"Todd Griffin","employerName":"Milbank Mfg. Co","title":"GRIFFIN VS. MILBANK MFG. CO. AWCC# H202874 MAY 15, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GRIFFIN_TODD_H202874_20240515.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRIFFIN_TODD_H202874_20240515.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:54:24.607Z"},{"id":"alj-H006320-2024-05-14","awccNumber":"H006320","decisionDate":"2024-05-14","decisionYear":2024,"opinionType":"alj","claimantName":"Mary Bryan","employerName":null,"title":"BRYAN VS. DES ARC ELEMENTARYAWCC# H006320May 14, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRYAN_MARY_H006320_20240514.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRYAN_MARY_H006320_20240514.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H006320 \n \nMARY R. BRYAN, EMPLOYEE      CLAIMANT \n \nDES ARC ELEMENTARY, EMPLOYER     RESPONDENT \n \nARKANSAS SCHOOL BOARD ASSOC, CARRIER/TPA  RESPONDENT \n            \n \n \nOPINION FILED MAY 14, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on May 14, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Melissa Wood, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on May 14, 2024, in Little Rock, \nArkansas on respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act.  The claimant was originally represented by Shannon Muse Carrol, \nwho was allowed to withdraw as counsel by an Order of the Full Commission dated \n\nAugust 9, 2022.  At the time of the above hearing, the claimant was pro se and failed to \nappear for the hearing.  The Claimant had filed a Form AR – C on June 22, 2021, \ncontending that she slipped and fell while standing in water and that she injured her left \nknee on August 25, 2020.  The First Report of Injury in regard to this claim had been \npreviously filed on September 3, 2020, and provided that the claimant had slipped and \nfell which resulted in a fracture of the left knee.  The Form AR- 2 filed on September 10, \n2020, provided that the date of the first compensation check was September 10, 2020, \nin the amount of $1393.40.   \nA Request to Dismiss the Claim was filed on March 11, 2024, requesting that the \nmatter be dismissed for lack of prosecution.  The claimant has not requested a hearing \nto date and more than six months have passed since the filing of the original claim nor \nis there any record of her contacting the Commission after the date her attorney was \nallowed to withdraw.   \n Appropriate notice was provided to the claimant notifying her that a hearing on \nthe Motion to Dismiss was set for May 14, 2024, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the \nhearing, Melissa Wood appeared on behalf of the Respondents and asked that the \nmatter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for \nthe Respondent, I find that this matter should be dismissed without prejudice, for failure \nto prosecute pursuant to A.C.A. 11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \n\nORDER \n Pursuant to the above statement of the case, there is no alternative but to \ndismiss this claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2946,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H006320 MARY R. BRYAN, EMPLOYEE CLAIMANT DES ARC ELEMENTARY, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARD ASSOC, CARRIER/TPA RESPONDENT OPINION FILED MAY 14, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas on May 14, 2024...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["knee","fracture"],"fetchedAt":"2026-05-19T22:54:10.179Z"},{"id":"alj-H000613-2024-05-14","awccNumber":"H000613","decisionDate":"2024-05-14","decisionYear":2024,"opinionType":"alj","claimantName":"Sabrina Daniels","employerName":null,"title":"DANIELS VS. ARAMARK CAMPUS, INC.AWCC# H000613May 14, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DANIELS_SABRINA_H000613_20240514.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DANIELS_SABRINA_H000613_20240514.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H000613 \n \nSABRINA D. DANIELS,  \nEMPLOYEE CLAIMANT \n \nARAMARK CAMPUS, INC.,  \nEMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nSEDGWICK CLAIMS MG’T. SERVICES, INC.,  \nINSURANCE CARRIER/TPA  RESPONDENT \n \nOPINION FILED MAY 14, 2024 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative Law Judge (ALJ) Mike Pickens, in Monticello, Drew County, Arkansas, on February \n14, 2024. \n \nThe claimant, Ms. Sabrina Daniels, of Monticello, Drew County, Arkansas, appeared in person, and \npro se.  \n \nThe respondents were represented by the Honorable Randy P. Murphy, Anderson, Murphy & \nHopkins, Little Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \n  \n In the  prehearing  order  filed  November  29,  2023,  the  parties agreed  to  the  following \nstipulations, which they affirmed on the record at the hearing: \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has   \n  jurisdiction over this claim. \n \n 2. The employer/employee/carrier-TPA relationship existed at all relevant times  \n  including January 21, 2020, when the claimant sustained an admittedly compensable \n  injury to her left ankle and left foot for which the respondents paid both medical and \n  indemnity benefits. \n  \n 3. The claimant’s average weekly wage (AWW) is $313.00, which is sufficient to  \n  entitle her to weekly compensation rates of $209.00 for temporary total disability  \n  (TTD), and $157.00 for permanent partial disability (PPD) benefits. \n  \n\nSabrina Daniels, AWCC No. H000613 \n \n2 \n \n4. The claimant underwent a functional capacity evaluation (FCE) which concluded she \nsustained a seven percent (7%) permanent anatomical impairment rating to her left \nlower extremity; and that she was able to perform work in the MEDIUM work \ncategory as defined in the United States Department of Labor Guidelines (DOL \nguidelines). \n \n5. The respondents accepted this 7% permanent anatomical impairment rating to the \nclaimant’s left lower extremity, and paid her PPD benefits based on this rating. \n \n6. The claimant last saw a physician for treatment of her compensable injury sometime \nin February 2023. \n \n7. The parties specifically reserve any and all other issues for future determination \nand/or litigation. \n \n(Commission Exhibit 1 at 2; Reporter’s Transcript at 39). Pursuant to the parties’ mutual agreement, \nthe sole issue litigated at the hearing was:  \n \n1. Whether  the  claimant  is  entitled  to  additional  medical  treatment,  specifically \nadditional physical therapy (PT), for alleged continued pain complaints in her left \nankle and left foot. \n \n2. The parties specifically reserve any and all other issues for future determination \nand/or litigation. \n \n(Comms’n Ex. 1 at 2; T. 39).  \n \n            The prehearing order also strongly advised the claimant to call the \n  \nCommission’s Legal Division and to obtain the services of an attorney to represent her in this matter \n \non more than one occasion. (Commsn’n Ex. 1 at 1; T. 1). The hearing record consists of the reporter’s  \n \ntranscript, as well as any and all exhibits attached thereto. \n \n The claimant contends she is entitled to additional medical treatment in the form of PT to \nher left ankle and left foot based on her continued complaints of pain and swelling. She reserves any \nand all other issues for future determination and/or litigation. (Comms’n Ex. 1 at 3; T. 40).  \n\nSabrina Daniels, AWCC No. H000613 \n \n3 \n \n  The respondents contend they have paid the claimant all benefits to which she is entitled. \nThe respondents further contend the claimant is not entitled to any additional medical treatment – \nhere, specifically, the PT – for her alleged subjective complaints of pain and/or swelling. The \nrespondents specifically contend the claimant’s continued subjective complaints of pain and/or \nswelling are neither related to nor reasonably necessary for treatment of her compensable injury \nsince her healing period has long since ended; her permanent impairment rating is minimal and has \nbeen paid in full; her complaints of pain and swelling are subjective in nature and not supported by \nany objective medical evidence reported by any physician; and she has not sought or required any \nmedical treatment in almost one (1) year as of the hearing date. The respondents reserve the right \nto supplement their contentions and to assert any and all other applicable defenses and arguments \nupon the completion of necessary investigation and discovery. The respondents reserve any and all \nother issues for future determination and/or litigation. \n(Comms’n Ex. 1 at 3; T. 40). \n  The record consists of the hearing transcript and any and all exhibits contained therein and \nattached thereto. \nSTATEMENT OF THE CASE \n  The relevant facts are set forth in the parties’ prehearing order stipulations, supra, as well as \nthe claimant’s own hearing testimony. (Comms’n Ex. 1 at 2; T. 40; 7-36). The claimant, Ms. Sabrina \nDaniels, sustained an admittedly compensable injury to her left ankle/left foot on January 21, 2020. \nOn January 21, 2020, the claimant was working with Aramark on the campus of the University of \nArkansas at Monticello (UAM) cooking and serving omelets when she ran out of cooking oil. She \n“hollered’ back into the kitchen asking someone to bring her some more cooking oil, but nobody \nresponded to her request. Consequently, the claimant walked back into the kitchen to retrieve more \n\nSabrina Daniels, AWCC No. H000613 \n \n4 \n \ncooking oil. As she was walking in the kitchen looking around for more cooking oil she slipped, \nheard a “’pop’” in her left ankle, and fell to the floor. When she looked down at her left ankle, it \n“was layin’ flat on the concrete floor.” (T. 8-10).  \n  The claimant was immediately taken to the hospital in Pine Bluff where Dr. Regis Renard, \nan orthopedic surgeon, determined she had broken her ankle in three (3) places. Dr. Renard \nperformed surgery on the injured left ankle, part of which consisted of Dr. Renard placing a rod in \nthe claimant’s left ankle. At that time Dr. Renard did not prescribe any PT for the claimant, but \nadvised her she was to “exercise” her foot to “keep it movin’...and move it around certain parts of \nthe day.” (T. 11-15).  \n  The claimant underwent an FCE which concluded she was entitled to a 7% permanent \nanatomical impairment rating to her left lower extremity (which the respondents’ have paid out); \nand that she was able to perform work in the MEDIUM work category as defined in the United \nStates  Department  of  Labor,  Office  of  Workers’  Compensation  Programs,  Work  Capacity \nEvaluation of Musculoskeletal Conditions Guidelines (OWCP Guidelines). In April 2023, the \nclaimant returned to work “for ESS as a substitute teacher”, and she testified her required job duties \nfor this job were “more sedentary.” (T. 15-16).  \n  The claimant testified the last time she saw a doctor for treatment of her left ankle/left foot \ninjury was some time in February 2023 when she last saw Dr. Renard. On cross-examination the \nclaimant admitted she had requested and obtained a change of physician (COP) (and it appears \nthere were two (2) COP orders issued in this claim), and that at some point in early 2023 a physician \nhad recommended she undergo some PT. And, although the respondents apparently approved and \nreapproved the PT recommendation in early 2023, the claimant admitted she had failed to undergo \nPT at that time. There exist no medical records in the hearing record whatsoever and, specifically, \n\nSabrina Daniels, AWCC No. H000613 \n \n5 \n \nthere exists no medical evidence in the record indicating that any physician has recommended any \nadditional PT for the claimant. (T. 16-36).  \nDISCUSSION \nThe Burden of Proof \n  When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2024 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-9-\n704(c)(3) (2024 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2024 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. App. \n196, 737 S.W.2d 633 (Ark. App. 1987). \n  All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, 35 \nArk. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, 595 \nS.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility of \nthe witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \n\nSabrina Daniels, AWCC No. H000613 \n \n6 \n \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \n  The Commission has the duty to weigh the medical evidence just as it does any other \nevidence, and its resolution of the medical evidence has the force and effect of a jury verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince to weigh the totality of the medical evidence and to determine what evidence is most \ncredible given the totality of the credible evidence of record. Minnesota Mining & Mfg’ing v. Baker, \n337 Ark. 94, 989 S.W.2d 151 (1999). \n  Ark Code Ann. Section 11-9-508 (Lexis Repl. 2024) requires respondents to provide all \nreasonably necessary medical treatment related to a claimant’s compensable injury. The claimant \nhas the burden to prove by a preponderance of the evidence that she is entitled to additional medical \ntreatment. Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (Ark. App. 2003). \nWhat constitutes related, reasonably necessary medical treatment is a question of fact for the \nCommission. Hamilton v. Gregory Trucking, 90 Ark. App. 248, 205 S.W.3d 181 (Ark. App. 2005). \nBased on the total lack of evidence in the record it is impossible for the ALJ to rule in the claimant’s \nfavor on the facts herein. \n The claimant requests the ALJ order the respondents to pay for additional medical treatment \nin the form of PT for her complaints of pain and swelling in her left ankle/left foot; however, she \nhas failed to introduce any documentary evidence whatsoever indicating that any physician has \nrecommended she undergo PT at this time, or that PT is reasonably necessary for treatment of her \ncompensable injury left ankle/left foot injury at this time. There exists no medical evidence in the \nrecord at all – and certainly no physician’s current PT recommendation. Indeed, there exists no \n\nSabrina Daniels, AWCC No. H000613 \n \n7 \n \ncredible  evidence  in  the  record whatsoever the  claimant’s  request  for  PT  at  this  late  date  is \nreasonably necessary for treatment of her admittedly compensable left ankle/left foot injury.  \n The claimant last saw a physician for medical treatment in 2023 February; she has had her \nCOP; and she returned to work in April 2023. Although the respondents apparently had approved \nthe claimant’s request for PT in early 2023 (apparently on two (2) separate occasions), the claimant \nfailed and/or refused to undergo the PT at that time. (T. 28-36). Consequently, she cannot now be \nheard to credibly contend she is entitled to PT at this time – especially in light of the total lack of \nany credible evidence in the record demonstrating the requested PT is related to and reasonably \nnecessary in light of her compensable injury. While the claimant may or may not have benefitted \nfrom the representation of counsel in this matter, although the ALJ advised her on more than one (1) \noccasion to contact the Commission’s Legal Division and to retain the services of an attorney, she \nfailed and/or refused to do so.        \n Therefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed November 29, 2023, which \nthe parties affirmed on the record at the hearing, hereby are accepted as facts. \n \n2. The  claimant  has failed  to  meet  her  burden  of  proof  pursuant  to  the  Act  in \ndemonstrating that her request for additional medical treatment in the form of PT \nis reasonably  necessary  for  treatment  of  her January  21, 2020,  compensable  left \nankle/left foot injury.  \n \n3. There exists no documentary or other sufficient evidence in the record – medical or \notherwise – demonstrating the claimant’s treating physician has recommended any \nadditional medical treatment at this time in the form of PT or otherwise.  \n \n  WHEREFORE,  for  all  the  aforementioned  reasons,  this  claim  hereby  is  denied  and \ndismissed subject to the parties’ statutory appeal rights.  \n\nSabrina Daniels, AWCC No. H000613 \n \n8 \n \n  If they have not already done so, the respondents shall pay the court reporter’s invoice within \n20 days of their receipt of this opinion. \n IT IS SO ORDERED.   \n \n                                              \n \n       Mike Pickens \n       Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":14261,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H000613 SABRINA D. DANIELS, EMPLOYEE CLAIMANT ARAMARK CAMPUS, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ SEDGWICK CLAIMS MG’T. SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 14, 2024 Hearing conducted before the Arkan...","outcome":"affirmed","outcomeKeywords":["affirmed:1","dismissed:1","granted:1","denied:1"],"injuryKeywords":["ankle","back"],"fetchedAt":"2026-05-19T22:54:12.251Z"},{"id":"alj-H004172-2024-05-14","awccNumber":"H004172","decisionDate":"2024-05-14","decisionYear":2024,"opinionType":"alj","claimantName":"Jacob Pringle","employerName":null,"title":"PRINGLE VS. TOTAL PRECISION, INC.AWCC# H004172May 14, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PRINGLE_JACOB_H004172_20240514.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PRINGLE_JACOB_H004172_20240514.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H004172 \n \nJACOB PRINGLE, EMPLOYEE     CLAIMANT \n \nTOTAL PRECISION, INC., EMPLOYER    RESPONDENT \n \nMARKEL SERVICE, servicing entity for \nFIRSTCOMP INSURANCE COMPANY    RESPONDENT \n \n           \n \n \nOPINION FILED MAY 14, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on March 26, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Randy P. Murphy, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on March 26, 2024, in Little Rock, \nArkansas on respondent’s Motion to Dismiss for failure to prosecute pursuant to A.C.A. \n11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  The claimant \n\nwas pro se and failed to appear for the hearing.  The Claimant had filed a Form AR – C \nin March of 2023, through his attorney Daniel Wren, claiming entitlement to additional \nbenefits due to an injury of the small fifth finger of the right hand.  The claim was \naccepted.  An AR – 2 was filed on or about July 7, 2020, that did not provide any reason \nto controvert the claim. The claimant’s attorney, Daniel Wren, was allowed to withdraw \nby an Order of the Full Commission dated May 16, 2023.    \n A Motion to Dismiss was filed on or about January 23, 2024, requesting that the \nmatter be dismissed for failure to prosecute pursuant to A.C.A. 11-9-702(a) (4) and Rule \n099.13.  The claimant has not requested a hearing to date and more than six months \nhave passed since the filing of the original claim nor is there any record of him \ncontacting the Commission.   \n Appropriate notice was provided to the claimant notifying him that a hearing on \nthe Motion to Dismiss was set for March 26, 2024, in Little Rock, Arkansas.  The \nclaimant did not file a response and failed to appear on the hearing date.  At the time of \nthe hearing, Randy P. Murphy, appeared on behalf of the Respondents and asked that \nthe matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for \nthe Respondent, it is found that this matter should be dismissed without prejudice, for \nfailure to prosecute pursuant to A.C.A. 11-9-702 and Rule 099.13 of the Arkansas \nWorkers’ Compensation Act. \n \n\nORDER \n Pursuant to the above statement of the case, there is no alternative but to \ndismiss this claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2706,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H004172 JACOB PRINGLE, EMPLOYEE CLAIMANT TOTAL PRECISION, INC., EMPLOYER RESPONDENT MARKEL SERVICE, servicing entity for FIRSTCOMP INSURANCE COMPANY RESPONDENT OPINION FILED MAY 14, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Roc...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:54:14.324Z"},{"id":"alj-H303802-2024-05-14","awccNumber":"H303802","decisionDate":"2024-05-14","decisionYear":2024,"opinionType":"alj","claimantName":"Andrew Waldrup","employerName":null,"title":"WALDRUP VS. BATSON MACHINE & FABRICATIONAWCC# H303802May 14, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WALDRUP_ANDREW_H303802_20240514.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALDRUP_ANDREW_H303802_20240514.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H303802 \n \nANDREW R. WALDRUP, EMPLOYEE    CLAIMANT \n \nBATSON MACHINE & FABRICATION, EMPLOYER  RESPONDENT \n \nSTONETRUST, TPA/CARRIER     RESPONDENT \n \n           \n \n \nOPINION FILED MAY 14, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas on May 7, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Jason M. Ryburn, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on May 7, 2024, in Little Rock, \nArkansas on respondent’s Motion to Dismiss for failure to prosecute pursuant to A.C.A. \n11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  The claimant \nwas pro se and failed to appear for the hearing.  The claimant had filed a Form AR – C \n\non or about June 14, 2023, contending that he had crushed two fingers in a machine.  A  \nFirst Report of Injury was filed on June 23, 2023, that provided there was a contusion \ninvolving the fingers of the left hand.  An AR – 2 was filed on or about June 28, 2023, \nthat appeared to provide that it was a medical only claim.     \n A Motion to Dismiss was filed on or about December 8, 2023, requesting that the \nmatter be dismissed for failure to prosecute pursuant to A.C.A. 11-9-702(a) (4) and Rule \n099.13.  The claimant has not requested a hearing to date and more than six months \nhave passed since the filing of the original claim nor is there any record of him \ncontacting the Commission.   \n Appropriate notice was provided to the claimant notifying him that a hearing on \nthe Motion to Dismiss was set for May 7, 2024, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the \nhearing, Jason M. Ryburn, appeared on behalf of the Respondents and asked that the \nmatter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for \nthe Respondent, it is found that this matter should be dismissed without prejudice, for \nfailure to prosecute pursuant to A.C.A. 11-9-702 and Rule 099.13 of the Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to \ndismiss this claim in its entirety, without prejudice, for failure to prosecute. \n\n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2580,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303802 ANDREW R. WALDRUP, EMPLOYEE CLAIMANT BATSON MACHINE & FABRICATION, EMPLOYER RESPONDENT STONETRUST, TPA/CARRIER RESPONDENT OPINION FILED MAY 14, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas on May 7, 2024. Cl...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:54:16.389Z"},{"id":"alj-H204976-2024-05-09","awccNumber":"H204976","decisionDate":"2024-05-09","decisionYear":2024,"opinionType":"alj","claimantName":"Lyna Beals","employerName":"Milligan Racing(allen Milligan)","title":"BEALS VS. MILLIGAN RACING(ALLEN MILLIGAN) AWCC# H204976 & H306277 May 9, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BEALS_LYNA_H204976_H306277_20240509.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BEALS_LYNA_H204976_H306277_20240509.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                 CLAIM NOS.: H204976 & H306277 \nLYNA M. BEALS,  \nEMPLOYEE                                                                                                             CLAIMANT \n \nMILLIGAN RACING(ALLEN MILLIGAN),  \nEMPLOYER                                                                                                         RESPONDENT \n \nLIBERTY MUTUAL INSURANCE CORPORATION, \nINSURANCE CARRIER                                                                                    RESPONDENT \n \nLIBERTY MUTUAL GROUP,  \nTHIRD PARTY ADMINSTRATOR (TPA)                                                     RESPONDENT \n \n \n             OPINION FILED MAY 9, 2024     \n        \nHearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK in Hot Springs, \nGarland County, Arkansas. \n \nClaimant represented  by the  Honorable Evelyn  E.  Brooks, Attorney  at  Law, Fayetteville, \nArkansas. \n \nRespondents represented  by the  Honorable Michael  E.  Ryburn, Attorney at  Law,  Little  Rock, \nArkansas. \n \n \nStatement of the Case \nOn February 9, 2024, the above-captioned claims came on for a full hearing in Hot Springs, \nArkansas.  A prehearing telephone conference  was  conducted in  the  above-styled  claims on \nNovember 8, 2023, from which a Prehearing Order was filed on that same day.  A copy of said \norder and the parties’ responsive filings have been marked as Commission’s Exhibit 1 and made a \npart of the record without objection.   \nStipulations \nDuring the prehearing telephone conference, and/or hearing the  parties  agreed  to  the \nfollowing stipulations: \n\nBEALS- H204976 & H306277 \n \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n2. That  the  employee-employer-carrier  relationship  existed  at  all  relevant  times \nincluding on or about April 16, 2022 (when the Claimant alleges to have sustained \nher first compensable injury to her), and on May 11, 2022. \n3. The Claimant’s average weekly  wage  was  $600.00.  Her  compensation  rates  are \n$400.00 and $300.00.  \n4. The Respondents have controverted this claim in its entirety.  \n5. All   issues   not   litigated   herein   are reserved  under  the  Arkansas  Workers’ \nCompensation Act, including but not limited to the Claimant’s alleged injuries to \nher shoulder, right elbow, and right knee.  All matters pertaining to AWCC Claim \nNumber H204976 (relating to the April 16, 2022, neck injury) were resolved in my \nApril 19, 2023, Opinion and are res judicata.     \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether the Claimant sustained a compensable injury to her neck on May 11, 2022.  \n2. Whether the Claimant is entitled to temporary total disability compensation from \nMay 12, 2022,\n1\n through January 12, 2023. \n3. Whether the Claimant is entitled to the medical  benefits of record relating to her \nneck condition; and  future  medical treatment as  recommended  by  her  treating \nphysician, Dr. John Pace.    \n \n1\n There is a clerical error in the Hearing Transcript at page 9 of line 3.  It reads that the Claimant is requesting \ntemporary total compensation beginning on May 12, 2023.  The year in incorrect.  It should that beginning on May \n12, 2022.   \n\nBEALS- H204976 & H306277 \n \n3 \n \n4. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n The respective contentions of the parties are as follows: \nClaimant:  \nClaimant contends that she is entitled to medical treatment for her neck injury, exacerbated \non  May  11,  2022,  whether  she  is  entitled  to  temporary  total  disability  and  temporary  partial \ndisability benefits from date last work full time to a date yet to determined.  Claimant reserves all \nother issues.   \nRespondents: \n The Claimant has suggested that her neck injury was exacerbated by another event on May \n11, 2022.  All matters concerning claim no. H204976 were decided in the April 19, 2023, opinion \nand are res judicata.  If there were a new incident, it should not be adjudicated under H204976.  \nHowever, the Form C filed on June 5, 2023, shows an injury date of April 16, 2022.  The Claimant \nis not entitled to additional treatment to her neck or to TTD per the previous decision that was not \nappealed.   \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear the testimony of the witness and observe her demeanor, I hereby make the following findings \nof fact and conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.      The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n          \nclaim. \n \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n \n\nBEALS- H204976 & H306277 \n \n4 \n \n3.     The Claimant proved by a preponderance of the evidence that she sustained a    \n \n                      compensable injury to her neck on May 11, 2022.  \n           \n          4.        The Claimant proved by a preponderance of the evidence that the medical treatment   \n         of record she received was reasonable and necessary treatment for her compensable \n         May 11, 2022 neck injury.   \n         5.       The Claimant proved her entitlement to temporary total disability from May 12, 2022    \n         until January 12, 2023.  She also proved her entitlement to temporary partial disability \n         from the date she began working part-time and continuing. \n          6.       The parties stipulated that the Respondents have controverted this claim (H30677)  \n \n                    for her May 11, 2022, neck in its entirety.  Therefore, the Claimant is entitled to a  \n \n                    controverted attorney’s fee on all of the indemnity benefits awarded on this claim.    \n  \n           7.     All issues not litigated herein this Opinion are reserved.  \n \nSummary of Evidence \nMrs. Lyna M. Beals (referred to herein as the “Claimant”), was the only witness to testify \nat the hearing.  \n            The record consists of the February 9, 2024 hearing transcript and the following exhibits: \nSpecifically, Commission’s  Exhibit 1 includes  the  Commission’s  Prehearing  Order filed  on \nNovember 8, 2023 and the parties’ responsive filings; Claimant’s Exhibit No. 1 the April 19, 2023 \nOpinion  consisting  of  twenty-eight  (28)  numbered  pages; Claimant’s Medical Evidence  Index \nconsists of fifty-one (51) numbered pages was submitted on January 24, 2024; and Respondents’ \nExhibit 1, contains the Record of the Previous Hearing Transcript of the January 20, 2023. It is \nretained in the Commission’s file. \n                                                          Testimony \n\nBEALS- H204976 & H306277 \n \n5 \n \n At the time of the hearing, the Claimant was fifty-one (51) years of age.  At the previous \nhearing, the Claimant testified that in July 2021, she was hired to work for Mr. Allen Milligan, the \nowner  of  Milligan  Racing,  a  horse  racing  company.  She  testified  that  Mr.  Milligan  is  a  horse \ntrainer, and she worked as a groomer for him.    The Claimant confirmed that she was employed \nby Allen Milligan on May 11, 2022.   \n The  Claimant  now  contends  that  she  sustained  an  injury  to  her  neck  on May  11, 2024, \nwhile performing employment duties for the respondent-employer/Mr. Milligan.  Specifically, the \nexplained: \nQ And what happened on May 11, 2022? \nA On May 11\nth\n, that was at the ended of the meet for Oaklawn and I had to clean a lot \nof the stalls and move a lot of tack and truckloads of things, such as his saddles and, you \nknow, just all of the stuff that comes with moving from meet to meet, and everybody left \nthe State of Arkansas except myself, and so I was there to pretty much clean out everything \nfrom Oaklawn.  We couldn’t leave anything there.  \n \nQ So who was – was your husband there with you cleaning out the stall? \n \nA Yes.  Thomas Beals, my current husband, he helped me.  I asked for his help, as \nwell.          \n \nQ And so what specifically happened on that day? \n \nA We moved about six truckloads worth of things, such as a washing machine and a \nlot of heavy items, and we had to move it from Oaklawn to Royal, to the farm where he \nhas some, you know, storage area. \n \nQ So as you were moving the washing machine, what happened?   \n \nA When  I  was  moving  the washing  machine -- the  washing  machine  and  trying  to \npick it up with my husband, I had felt some significant pain in my right neck area, and I - \n- I just could not lift it and I felt a lot of pain at that time and I knew that there was something \ndefinitely wrong. \n \nShe confirmed that she reported her injury to her employer.  The Claimant testified that at  \n\nBEALS- H204976 & H306277 \n \n6 \n \nthe time of her May 11, 2022, injury, she was already on light duty during this time period due to \nbeing struck by a horse in April 2022.  According to the Claimant, she told Mr. Milligan she was \nin a lot of pain as a result of the washing machine incident on May 11, 2022.  The Claimant testified \nthat she told Mr. Milligan she has tingling up her arm, and no feeling in both hands, and that she \nwas unable to do the work she had been doing the prior ten years at Oaklawn with the horses.  The \nClaimant went on to testify that she cannot groom anymore.  She testified that she had not had any \nproblems whatsoever with her neck prior to her incident with the horse in April of 2022.  According \nto the Claimant, she was strong, could type 75 words per minute, and had feeling and mobility in \nher hands.  Per the Claimant, as of the date of the hearing, she cannot feel her hands and it is to the \npoint that they are constantly numb.  She has difficulties with her hands even when driving. \n The Claimant denied that she had any other accidents or injuries to her neck since the May \n11, 2022, incident with the washing machine.  She denied that numbness and tingling in her hands \nand arms have gone away since May of 2022.  According to the Claimant she had to seek treatment \nfrom Dr. Pace’s office on Adcock Road in Hot Springs.  She was getting injections in her neck to \ntry to alleviate some of the tingling to see if that would help.  However, the Claimant stated that \nnothing alleviated the pain and the tingling, and it is still there.   \nShe  testified  that  she  needs nerve  testing of  her  arms.    On  the  other  hand,  the  Claimant \ntestified that the appointments to get in to see Dr. Kramer are set six months out.  According to the \nClaimant, Dr.  Kramer  is  a  neurologist in  Hot  Springs.    She  testified  that  she  went  there  for  an \nappointment, but she did not have Medicaid and they wanted her to pay $500.00 out-of-pocket that \nshe does not have the resources to pay.  The Claimant confirmed that her last appointment was in \nFebruary of last year at the National Park Medical Center.  She explained that she simply could \nnot afford to get the testing done out-of-pocket.  According to the Claimant, she was referred to \n\nBEALS- H204976 & H306277 \n \n7 \n \nDr.  Kramer  by  Dr.  Pace.    The  Claimant  denied  being  released  by  Dr. Pace.    According  to  the \nClaimant,  once  they  were  told  she  had  stopped  working  for  Mr.  Milligan,  her  treatment  was \ncompletely stopped.  \nThe Claimant denied that the Respondents continued to pay for her medical treatment after \nthe May 11, 2022, incident.  She testified that her current symptoms in her neck and hand includes \ntenderness to touch.  She takes aspirin every day and night, and she puts muscle cream, and Icy \nHot on her neck area to alleviate her neck symptoms.  The Claimant testified that there is something \nsignificantly wrong that was never there prior to this incident.  She specifically testified that not \nhaving feeling in her hands is what is so frustrating. \nOn cross-examination the Claimant verified that she is currently working for Doc Clement.  \nShe testified that it is a full watch center, and basically, she watches the cameras and looks for foal \nand  mares  in  distress.    The  Claimant  testified  that  she  still works  with  horses,  but  the  work  is \nnothing  she  is  used  to  doing,  which  was  grooming.   She  testified  that  she  has  worked  there  for \nabout a month.  The Claimant testified that she was unemployed for quite a while after the incident, \nprimarily  due  to  her  neck.    She  admitted  that  she  testified  during  the  previous  hearing  that  she \nworked doing hot walking until May, when the meet ended.  \nThe  Claimant  denied  having  drawn  unemployment  benefits.    The  Claimant  essentially \ndenied any other sources of income. She testified that she sold various items online trying to make \nends meet.    The Claimant confirmed that when the hot walking job ended in May, she did  not \nwork until January of 2023.  She admitted that she is now on Medicaid.  The Claimant agreed that \nit has been over a year since she saw a doctor.  She testified that when she went to see Dr. Kramer, \nthere  was  a  problem  with  her  Medicaid,  and  that  is  why  they  wanted  her  to  pay  out-of-pocket.  \nAccording to the Claimant, she has been on Medicaid for a couple of weeks. \n\nBEALS- H204976 & H306277 \n \n8 \n \nShe confirmed that during the first hearing, it was over an injury that happened in April of \n2022.  The Claimant agreed that is when the horse reared up and kicked threw.  That was the initial \ninjury to her neck. She specifically testified that she was struck by the horse and thrown onto the \ncement.  The Claimant admitted that the pain never went away.  She denied getting any relief from \nthe pain of either incident.  Instead, the Claimant testified that her pain worsened when she picked \nup all the truckload of items for Mr. Milligan in May.  The Claimant testified that that she was in \npain from lifting the washer, which was in her neck and her lower back.  She admitted that she \nindicated at that prior hearing that she injured her low back due to the May 11, 2022, incident. \nThe Claimant stated that she was not asking for benefits for her low back due to the May \n11 incident because her main pain right now is her neuropathy symptoms.  \nUnder further questioning, the Claimant was asked how she hurt her neck.  She replied,  \n“Are you kidding me?  When you have to lift up a washing machine onto a truck and I’m a female, \nand I’m already injured and in pain and have no feeling in my hands? I mean, I almost dropped \nit.” \n The Claimant testified that when driving she has to literally bang her hands on the steering \nwheel trying to even feel her hands. The Claimant denied having any MRIs besides the one for her \nneck.  In her current job, the Claimant denied using a keyboard.  However, she does use a monitor.  \nThe  Claimant  testified  that  she  would  continue  to  work  at  her  current  job  until  she  can  find \nsomething else.  According to the Claimant, she needed to find work because she was in the middle \nof losing her job. Per the Claimant, she was evicted and had no choice but to return to work.  The \nClaimant,  her  doctor  explained  that  if  she  was  lifting  and  hurt  on  her  right  side,  her  neck  is \ninflamed.   \n\nBEALS- H204976 & H306277 \n \n9 \n \n She verified that she currently works a part-time job.  The Claimant confirmed she works \nabout 30 hours a week.   \n       Medical Evidence \nOn April 18, 2022, the Claimant sought treatment for pain from the Sherwood Urgent Care \nClinic, in  Hot  Springs.    There,  the  Claimant  came  under  the  care  of  Pamela  Speed, NP (nurse \npractitioner).    At  that time, the  Claimant  complained  of  shoulder  and  neck  pain.   The  Claimant \nreported  a  history  of  having  been  injured on  the  Saturday  while  working  with  horses  at  the \nracetrack. Specifically, the Claimant stated that she was pushed over striking her right shoulder \nand her neck was hurting.  The Claimant reported that most of her symptoms were on the right \ncervical  side.  Additionally,  the  Claimant  stated  that  she  had  muscle  aches,  muscle  pain, and \nmuscle  spasms.   On physical  examination, Nurse  Speed  noted  that  the  Claimant  had mild  neck \nspasm, along with anterior neck bilateral pain.  Nurse Speed diagnosed the Claimant with among \nother things, “Cervicalgia, Illness, Acute,” for which she prescribed a medication regime which \nincluded a Medrol Pak 4mg in a dose pack, and Robaxin.  Speed authored an Excuse for Work on \nthat  same  day.  She  released  the  Claimant  to  restricted/accommodated  duty.   Her  restrictions \nincluded  limited  standing,  sitting,  and  walking  along  with  a  ten-pound  lifting  restriction  to  her \nright hand.      \n The Claimant sought follow-up care from Sherwood Urgent Care on April 21, 2022, due \nto pain in her neck, among other bodily parts.  She stated that she was kicked by a horse on the left \nside, but this caused her to fall, and she landed on her right side, striking her head on the ground.  \nThe Claimant reported she “hit her head on a concrete floor” when she fell.  She reported that she \nstarted  having  dizziness,  headache,  and  nausea  after  leaving  the  clinic.  However,  the  Claimant \nspecifically reported that her symptoms were now better.  Her shoulder pain, and right back pain \n\nBEALS- H204976 & H306277 \n \n10 \n \nwere now resolved, and her ROM in her neck was normal.  Although the Claimant reported her \nsymptoms had resolved, a CT of the head was ordered due to a diagnosis of concussion without \nloss of consciousness.  Medical staff instructed the Claimant to return to the clinic for follow-up \ncare after the imaging was completed.      \n Subsequently,  on  June 14, 2022, the  Claimant  returned  to Sherwood Urgent Care  for \nadditional medical care.  The nurse practitioner, Robyn Chreene, wrote that the Claimant had an \ninjury at work on April 18 [sic], 2022 and was seen there at the clinic.  Per these medical notes, \nthe Claimant had a CT of the head performed on April 26, 2022, and received the results on April \n28, 2022.  The nurse practitioner noted that the Claimant was told to come back for clearance to \nreturn  to  work, but  she  never  returned.    At  that  time,  the  Claimant  reported that  her  employer \nrefused to return her to work until she was 100%, but she does not feel 100%.  The Claimant stated \nthat she did not know what to do and wanted to know what she should do given her condition.  She \nreported that she continued to have right-sided neck pain from the initial injury although her X-\nrays of the C-spine were normal.  But the Claimant denied numbness or tingling or any radiation \nof  pain  down  her  arm.  At  that  time,  the Claimant  reported that  she  hurt  her  back  in  a  separate \nincident on May 11, 2022, lifting something.  They ordered physical therapy and noted that they \nwould move forward with an MRI of the neck and shoulder if the Claimant did not improve with \ntherapy.  Although Nurse Chreene continued the Claimant on light duty, she stated that she did not \nfeel  the  Claimant  needed  to  be  placed  completely  off  work.    On  physical  examination,  the \nClaimant’s ROM was noted to be normal in her neck as well as her shoulder with no radiculopathy \nsymptoms.  Specifically, Speed wrote, “Low suspicion for rotator cuff injury or cervical nerve root \nimpingement from work injury.” \n\nBEALS- H204976 & H306277 \n \n11 \n \n On June 28, 2022, the Claimant presented for follow-up care on her neck and back pain \nunder  the  care  of  Robyn  Chreene,  NP.    She  reported  that  she  had  her  first  physical  therapy \nappointment on July 7, 2022.  The Claimant had not returned to work.  She stated that the muscle \nrelaxers caused her to be nauseated.  Therefore, she had been using ice or heat to the affected area.  \nPer  these  clinical notes, Nurse Chreene called the Claimant’s boss to get clarification on the \navailability of light duty work and due to her boss stating she had to be a 100% before returning \nto  work.   Specifically, the  nurse  practitioner wrote, “At the last visit the patient stated  she was \ninjured at work on 5/11 as well as reinjuring her right shoulder and neck. Discussed with patient \nthat her boss states she was no longer employed with them and that she was unsure if this was still \ncovered with workers [sic] comp as she was not an employee.”  The nurse practitioner instructed \nthe  Claimant  to  alternate  ice  and  heat  to  her  shoulder;  continue  with  anti-inflammatory;  attend \nphysical therapy as needed; and to follow-up as needed.         \n The Claimant underwent evaluation for physical therapy on July 7, 2022, at Levi Hospital. \nDalton Steele PT, DPT, Cert. DN authored a Physical Therapy Initial Evaluation physical therapy \nnote.    Physical  Therapist  Steele  noted  that  the  Claimant  presented  to  the  therapy  clinic  with \ncomplaints of right shoulder pain following a work-related accident.  In particular, the Claimant \nreported she was kicked by a horse in mid-April.  She stated that she was kicked on the left side \nand fell onto the concrete on her right side.  Of significance, the Claimant stated that she sought \ntreatment from Sherwood Urgent Care and was told she suffered a concussion.  She reported that \nher concussion symptoms resolved but she has been having a lot of pain and difficulty with her \nright shoulder.  The Claimant stated she believed she needed an MRI for her shoulder due to sharp \nand burning pain in her shoulder that does not seem to go away. \n\nBEALS- H204976 & H306277 \n \n12 \n \n An MRI of the Claimant’s cervical spine was performed on November 16, 2022, with an \nimpression of “At C5-6  there  is  moderate  right  neural  foraminal  stenosis  nerve  impingement.  \nMultilevel degenerative disc and facet changes.” \n William James, CRNA, for Dr. John Pace evaluated the Claimant on December 19, 2022.  \nAt that time, the Claimant reported joint pain, muscle pain, muscle cramps, neck pain, middle back \npain, muscle stiffness and lower back pain.  On physical examination, the Claimant was noted to \nhave cervical spine stiffness and decreased ROM, along with thoracic tenderness among symptoms \nrelated to the lumbar spine.  James performed a right C5-6 epidural steroid injection. \nThe  Claimant  was  seen  in  the  office  of  Dr.  Pace  on January  3,  2023.   At  that  time,  the \nClaimant was evaluated by Dr. Pace’s CRNA,  William  James.    At  that  time,  the  Claimant  was \nassessed with “Radiculopathy, cervical region.”  She continued with the symptoms noted above.  \nHowever, the Claimant reported improvement with paresthesia in her fingers since the right ESI \non the right C5-6, which was performed on December 19, 2022.  \nOn January 31, 2023 the Claimant returned to Dr. Pace’s office for a follow-up visit of the \nC56  ESI,  which  was  performed  on  December  19,  2022.    Although  the  Claimant  had multiple \nailments, her most relevant complaints to this claim being problems with her neck. Specifically, \nthe Claimant’s neck problems included spinal stenosis in the cervical region, neck pain, and \ncervical radiculopathy.  At that time, the Claimant was assessed with “Arthropathy of cervical \nspine  facet joint.”  Per these clinic notes, the  Claimant  did  great  with  the  procedure.    She  had \nimproved  paresthesia  in  bilateral  hands  and  lateral  forearm.    The  Claimant  was  assessed  with \n“Spondylosis  with  myelopathy  or  radiculopathy,  cervical  region,”  for  which  her  current \nmedication regimen was continued.  \n\nBEALS- H204976 & H306277 \n \n13 \n \nThe Claimant returned to Dr. Pace’s office on February 28, 2023.  At that time, the \nClaimant  reported,  among  other  things,  continued  pain in  her  neck along  with  weakness  and \nnumbness and tenderness in both upper extremities.  On physical examination, the Claimant had \ncervical spine tenderness and decreased ROM.  Dr. Pace recommended that the Claimant undergo \nbilateral  upper  extremities  EMG/NCV studies.  He  also  wrote  a  referral  for  the  Claimant  to  be \nevaluated by a neurologist for her cervical spine radiculopathy.                      \nAdjudication \nA. Compensability  \nThe Claimant has asserted a compensable neck injury on May 11, 2022, while working for \nthe respondent-employer/Milligan Racing.  \n \"Compensable  injury\"  means  an accidental  injury  causing  physical  harm  to  the  body, \narising out of and in the course of employment and which requires medical services or results in \ndisability  or  death.    Ark.  Code  Ann.  §11-9-102(4)(A)(i).  A  compensable  injury  must  be \nestablished   by   medical   evidence   supported   by   objective   findings.      Ark.   Code   Ann.   § \n11-9-102(4)(D).   The Claimant must prove by a preponderance of the evidence that she sustained \na compensable injury.  Ark. Code Ann. § 11-9-102(4) (E)(i). \nPreponderance  of  the  evidence  means  the  evidence  having  greater  weight  or  convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).   \n  After  reviewing  the  evidence  in  this  case  impartially,  without giving  the  benefit  of  the \ndoubt to either party, I find that the Claimant proved by a preponderance of the credible that she \nwas sustained  an  accidental  injury  to  her  cervical  spine  arising  out  and  in  the  course  of  her \nemployment on May 11, 2022, while working for Milligan Racing.   \n\nBEALS- H204976 & H306277 \n \n14 \n \nHere, I am persuaded that the Claimant was performing work-related activities when she \nreinjured her neck on May 11, 2022.   Specifically, the Claimant credibly testified that she was \nreinjured on May 11, 2022, while working for Milligan Racing.  Her testimony proves that she \nreinjured her neck on May 11, 2022, while trying to lift a washer onto the back of a truck with her \nhusband.  I  find that the Claimant’s account  of  this  incident to  be  credible.   Her  testimony  was \ncorroborated by her husband’s testimony in this regard when he credibly testified during the first \nhearing  about  the May  11\nth\n incident. The  Claimant’s testimony is  also  corroborated  by the \ncontemporaneous medical documentation of record, namely the clinic notes from June 14, 2022.   \n Hence, the Claimant testified that she reported her injury to Mr. Milligan. Thereafter, the \nClaimant sought initial medical services for her second neck injury of May 11, 2023, from Hot \nSprings - Sherwood Urgent Care Clinic on June 14, 2022.  At that time, the Claimant specifically \nmentions the occurrence of a separate May 11 incident.  \nSubsequently, the  Claimant  underwent  an  MRI  of  the  cervical  spine  on  November  16, \n2022,  which  revealed  that  at  “C5-6  there  is  moderate  right  neural  foraminal  stenosis  nerve \nimpingement.”  I am persuaded that these objective medical findings are causally related to the \nClaimant’s May 11, 2022, work-related injury due to the following reasons.  Specifically, x-rays \ntaken on April 18, 2022 of the Claimant’s cervical spine were normal.  It was not until after the \nMay 11, 2022, work-related incident that the cervical spine abnormalities were revealed.  Here, \nboth the Claimant and her husband credibly testified that she was “reinjured” in May of 2022.  \nMoreover, when the Claimant returned to the Urgent Care Clinic on April 21, she reported \nthat  her  right  shoulder  pain  had  resolved,  and of  significance  the ROM  in  her  neck  was now \nnormal.  At that time, medical staff instructed the Claimant to return for a follow-up visit to the \nUrgent Care Clinic to get clearance to return to work.  However, the Claimant failed to return to \n\nBEALS- H204976 & H306277 \n \n15 \n \nthe clinic as directed to obtain clearance to return to work.  More importantly, the Claimant did \nnot seek further medical treatment/follow-up care until after the May 11 lifting incident.  Thus, the \nClaimant continued working her regular full-time and even more laborious employment duties for \nMilligan  Racing after her  first  neck  injury  of April  16, and  did  not  stop working  until  after her \nsecond work-related  neck  injury  of May 11,  2022, which  is at issue  now.   The  Claimant  also \ntestified that she had no prior problems with her neck, and she denied having sustained any other \ninjuries or accidents after the May 11, 2022 injury. \nIn  light  of  the  above  cited  reasons,  I  find  that  the  abnormalities of the Claimant’s neck \nrevealed on the November 16, 2022 MRI establishes an injury to her neck by medical evidence \nsupported by objective findings.  \nTherefore, based on all of the foregoing, I find that the Claimant has met all of the necessary \nrequirements  for  establishing  a  compensable  injury  to  her cervical  spine  while  performing \nemployment  activities  for  her  employer.    Thus,  I  therefore  find  that  the  Claimant  proved by  a \npreponderance of the evidence that she sustained  a compensable injury to  her neck on May 11, \n2022, during and in the course of her employment with the respondent-employer/Milligan Racing.   \nB. Medical Benefits \nAn employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn. § 11-9-508(a).  The Claimant bears the burden of proving by a preponderance of the evidence \nthat  medical  treatment  is  reasonably  necessary.   Stone  v.  Dollar  General  Stores,  91  Ark.  App. \n260, 209 S.W.3d 445 (2005). \nThe Claimant proved that the treatment of record that she received for her May 11, 2022 \nneck injury beginning on June 14, 2022 and continuing was reasonable and necessary for her neck \n\nBEALS- H204976 & H306277 \n \n16 \n \ninjury.  Her testimony shows that she continues with pain, and numbness and tingling in her hands \nand arms, which has been related to her neck injury of May 2022.  Prior to her work injury, the \nClaimant had not had any problems or complaints of the neck, except for the first injury to her \nneck,  a  few  weeks  earlier  on  April  16.  I thus  find  that the Claimant proved her  entitlement  to \nadditional  medical treatment  for  her  neck  injury,  including  the care recommended  by  Dr. John \nPace in  the  form  of bilateral  upper  extremities EMG/NCV studies, and the  referral  for  further \nevaluation of her cervical spine complaints by a neurologist.   \nC.  Temporary Total Disability and Temporary Partial Compensation  \nHere, the Claimant contends that she is entitled to temporary total disability benefits for \nher neck injury of May 11, 2022, beginning on May 12, and continuing until January 12, 2023.     \nAn  injured  employee  for  an  unscheduled  injury  is  entitled  to receive temporary  total \ndisability compensation  during  the  time  that she  is  within  her healing  period  and  totally \nincapacitated from earning wages.   Arkansas  State  Highway  and  Transportation  Department  v. \nBreshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  The healing period is that period for healing of \nthe injury which continues until the employee is as far restored as the permanent character of the \ninjury will permit.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  If the \nunderlying condition causing the disability has become stable and nothing further in the way of \ntreatment will improve that condition, the healing period has ended. Id.  Temporary total disability \ncannot be awarded after the Claimant’s healing period has ended.  Trader  v.  Single  Source \nTransportation, Workers’ Compensation Commission E507484 (February 12, 1999). \n The Claimant proved her entitlement to any temporary total disability for her compensable \ncervical spine injury  of May  11, 2022, and  continuing  until  January  13,  2023,  because she  was \ntotally incapacitated from earning her regular wages as a groomer and other laborious work during \n\nBEALS- H204976 & H306277 \n \n17 \n \nthis time  limit.  She  has  remained  within  her  healing period since  the  day  of  her injury, and it \ncontinues.  In that regard, Dr. Pace has ordered additional diagnostic testing to determine the extent \nof her injury; and he has referred the Claimant for further evaluation by a specialist/neurologist for \nher continued neck pain and other difficulties, including but not limited to numbness and tingling \nof her both her upper extremities.  Therefore, I find that the Claimant proved her entitlement to \ntemporary total disability from May 12, 2022, until January 12, 2023. \nThe  Claimant  also  contends  she  is  entitled  to  temporary  partial  disability.    Temporary \npartial  disability  is  that  period  within  the  hearing  period  in  which  the  employee  suffers  only  a \ndecrease in her capacity to earn the wages she was receiving at the time of the injury. \n  Here, the Claimant credibly testified that she returned to work part-time performing less \nstrenuous  employment  duties and  continues  to  do  so.   The  evidence  before me shows  that  the \nClaimant’s earning capacity has been diminished since that time and continued through the date \nof the hearing.  The Claimant has remained within her healing since the day of her injury.  The \nClaimant has suffered a decrease in her earning capacity due to her compensable neck injury so as \nto prove her entitlement to temporary partial disability benefits from the time she started working \npart-time until a date yet to be determined.       \nD.  Attorney’s Fee \n  It is undisputed that the Respondents have controverted this claim in its entirety.  Therefore, \nthe Claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity benefits \nawarded herein to the Claimant pursuant to Ark. Code Ann. § 11-9-715. \n                AWARD \nThe Respondents are directed to pay benefits in  accordance with the  findings of fact set \nforth herein this Opinion.   \n\nBEALS- H204976 & H306277 \n \n18 \n \nAll accrued sums shall be paid in lump sum without discount, and this  award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. Pursuant to Ark. Code \nAnn.  §  11-9-715,  the Claimant’s attorney is entitled to a 25% attorney’s fee on the indemnity \nbenefits awarded herein.  This fee is to be paid one-half by the carrier and one-half by the Claimant.  \nAll issues not addressed herein are expressly reserved under the Arkansas Workers’  \nCompensation Act.        \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE","textLength":34980,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NOS.: H204976 & H306277 LYNA M. BEALS, EMPLOYEE CLAIMANT MILLIGAN RACING(ALLEN MILLIGAN), EMPLOYER RESPONDENT LIBERTY MUTUAL INSURANCE CORPORATION, INSURANCE CARRIER RESPONDENT LIBERTY MUTUAL GROUP, THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT OPINION FILED MAY 9,...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["shoulder","knee","neck","back","cervical","concussion","rotator cuff","thoracic"],"fetchedAt":"2026-05-19T22:54:08.108Z"},{"id":"alj-H300880-2024-05-08","awccNumber":"H300880","decisionDate":"2024-05-08","decisionYear":2024,"opinionType":"alj","claimantName":"Truyen Chung","employerName":null,"title":"CHUNG VS. ABB MOTORS & MECHANICALAWCC# H300880May 8, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/CHUNG_TRUYEN_H300880_20240508.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CHUNG_TRUYEN_H300880_20240508.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H300880 \n \nTRUYEN B. CHUNG,  Employee                                                         CLAIMANT \n \nABB MOTORS & MECHANICAL, Employer                                            RESPONDENT                                                        \n \nGALLAGHER BASSETT SERVICES, Carrier/TPA                                  RESPONDENT                                                                                         \n \n \n OPINION/ORDER FILED MAY 8, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by R. SCOTT ZUERKER,  Attorney, Fort Smith, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On March 2, 2023, claimant filed Form AR-C alleging an injury on or about June \n8, 2022.  When no action was taken to prosecute the claim, respondent filed a Motion to \nDismiss on September 26, 2023.  In response to that motion, claimant’s attorney at that \ntime, Andy Caldwell, objected to the respondent’s motion and requested a hearing.  A \nhearing  was  scheduled  on  the  claim  for  January  22,  2024,  but  was  canceled  after  Mr. \nCaldwell filed a Motion to Withdraw.  Mr. Caldwell’s Motion to Withdraw was granted by \nOrder filed January 17, 2024.  Since that time, no further action has been taken by the \nclaimant to prosecute his claim and as a result, respondent filed this second motion to \ndismiss on February 14, 2024. \n\nChung – H300880 \n \n2 \n \nA hearing on Respondent’s Motion to Dismiss was scheduled for April 22, 2024. \nNotice of the hearing was sent to claimant by certified mail and was delivered on March \n14,  2024.    Claimant did  not  appear  at  the  hearing  and has  not  responded  to  the \nrespondent’s motion. \n After my review of the respondent’s motion, the claimant’s failure to appear at the \nhearing or respond to the respondent’s motion, I find that respondent’s motion to dismiss \nthis claim should be and hereby is granted.  This dismissal is pursuant to Commission \nRule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2382,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300880 TRUYEN B. CHUNG, Employee CLAIMANT ABB MOTORS & MECHANICAL, Employer RESPONDENT GALLAGHER BASSETT SERVICES, Carrier/TPA RESPONDENT OPINION/ORDER FILED MAY 8, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Co...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:54:01.868Z"},{"id":"alj-H306052-2024-05-08","awccNumber":"H306052","decisionDate":"2024-05-08","decisionYear":2024,"opinionType":"alj","claimantName":"Kenneth Hooper","employerName":null,"title":"HOOPER VS. BLAN TRACTOR CO., INC.AWCC# H306052May 8, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/HOOPER_KENNETH_H306052_20240508.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOOPER_KENNETH_H306052_20240508.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H306052 \n \nKENNETH J. HOOPER, \nEMPLOYEE                                                                                                              CLAIMANT \n \nBLAN TRACTOR CO., INC., \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nCHEROKEE INS. CO./ \nCHEROKEE INS. CO., \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE  \nFILED MAY 8, 2024 \n \nHearing conducted on Wednesday, May 8, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Kenneth J. Hooper, pro se, of Hampton, Calhoun County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable R. Scott Zuerker, Ledbetter, Cogbill, Arnold \n& Harrison, LLP, Fort Smith, Sebastian County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Wednesday, May 8, 2024, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2024 \nLexis Replacement)  and  Commission Rule  099.13  (2024 Lexis Replacement). The  hearing  was \nscheduled  to  begin  at  11  a.m.  but,  as  is  his  standard  operating  procedure,  the  ALJ  provided  the \nclaimant  additional  time  to  appear  before  he  began  the  hearing.  The  ALJ  sounded  the  hall, \ndetermined the claimant was not present, and he began the hearing.   \n The respondents filed a motion to dismiss without prejudice (MTD) with the Commission \non March 18, 2024, requesting this claim be dismissed without prejudice for lack of prosecution. \nConsistent with the applicable Arkansas law, thereafter the Commission mailed a copy of both the \n\nKenneth J. Hooper, AWCC No. H306052 \n \n2 \n \nrespondents’ MTD and  the  subject  hearing  notice to  the  claimant via  the  United  States  Postal \nService  (USPS),  Certified  Mail,  Return  Receipt  Requested,  to  his last  known  address  of  record \nwith the Commission, which the claimant received in March 2024 and April 2024, respectively. \n(Commission Exhibits 1 and 2). Thereafter, the claimant failed and/or refused to respond in any \nway to either the Commission or to the respondents; and she failed and/or refused to appear at the \nsubject hearing. The claimant never objected in any way to the respondents’ MTD. The claimant \nhad at one time been represented by counsel, but was pro se at the time of the hearing date pursuant \nto the Commission’s order filed January 9, 2024, granting the claimant’s attorney’s motion to \nwithdraw as counsel. (Respondents’ Exhibit 1B; Reporters’ Hearing Transcript) \n The  record  herein  consists  of the  hearing  transcript  and  any  and  all exhibits  contained \ntherein and attached thereto. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2024 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the respondents’ \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing and contained in the record conclusively demonstrates the \nclaimant has both failed and/or refused to prosecute his claim, and he has failed and/or refused to \nrequest a hearing within the last six (6) months. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n\nKenneth J. Hooper, AWCC No. H306052 \n \n3 \n \n \n 2.        After the Commission mailed due and legal notice of both the respondents’ letter  \n                 MTD as well as a copy of the notice for the subject hearing to the claimant’s last \n                 known address of record with the Commission, the claimant failed and/or refused \n                 to respond to the MTD in any way; or to object to the subject MTD; or to request a \n                 hearing on the merits of his claim.  \n \n            3.         Moreover, the claimant failed and/or refused to appear at the subject hearing and, \n                        therefore, has waived his right to a hearing on the MTD. \n \n      4.         The claimant has failed to request a hearing on the merits of his claim within the \n                   last six (6) months. \n \n 5. Therefore, the respondents’ aforementioned MTD filed with the \n                  Commission on March 18, 2024, should be and hereby is GRANTED. \n      \n      6.         This claim is dismissed without prejudice to its refiling pursuant to the deadlines \n                  prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission Rule 099.13. \n \n This opinion  and  order  shall not be  construed  to  prohibit  the claimant, his attorney, any \nattorney he may retain in the future, or anyone acting legally and on his behalf from refiling this \nclaim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The  respondents shall pay the court reporter’s invoice within twenty  (20) days  of their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \nMP/mp","textLength":6031,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H306052 KENNETH J. HOOPER, EMPLOYEE CLAIMANT BLAN TRACTOR CO., INC., EMPLOYER RESPONDENT CHEROKEE INS. CO./ CHEROKEE INS. CO., INSURANCE CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED MAY 8, 2024 Hearing conducted on Wednesday, May 8, 202...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:54:03.940Z"},{"id":"alj-G006442-2024-05-08","awccNumber":"G006442","decisionDate":"2024-05-08","decisionYear":2024,"opinionType":"alj","claimantName":"Eric Mikles","employerName":null,"title":"MIKLES VS. LOGAN COUNTYAWCC# G006442May 8, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/MIKLES_ERIC_G006442_20240508.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MIKLES_ERIC_G006442_20240508.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G006442 \n \nERIC MIKLES, Employee                                                                               CLAIMANT \n \nLOGAN COUNTY, Employer                                                                   RESPONDENT                             \n \nASSOCIATION OF ARKANSAS COUNTIES WCT, Carrier                    RESPONDENT                                                                                \n \n \n OPINION FILED MAY 8, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On April 15, 2024, the above captioned claim came on for hearing at Fort Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on January  31, 2024, and  a  pre-\nhearing order was filed on February 21, 2024.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The prior Opinion of August 5, 2016 is final. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Respondents’ right to have claimant seen by a physician of their choosing \npursuant to A.C.A. §11-9-511(c). \n\nMikles – G006442 \n 2 \n The claimant is not agreeable to undergoing an independent medical evaluation \nby Dr. Roman. \n The respondents contend they are entitled to have claimant seen by Dr. Roman \nfor an independent medical evaluation pursuant to A.C.A. §11-9-511(c). \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non  January 31, 2024 and contained in a pre-hearing order filed February 21, 2024 are \nhereby accepted as fact. \n 2.  An in-person medical examination by Dr. Roman of the claimant is reasonable \nand necessary pursuant to A.C.A. §11-9-511(a). \n \n FACTUAL BACKGROUND \n Claimant  is  a  53-year-old  man  who  suffered  a  compensable  injury  to  his  left \nshoulder  and  neck  in  July  2010.    Claimant  underwent  surgery  by  Dr.  Harp  on  his  left \nshoulder on November 11, 2010, but he has not undergone any surgery on his neck.  In \nan Opinion filed by the Full Commission on June 18, 2012, it was determined that claimant \nsuffered  a  4%  permanent  anatomical  impairment  for  his  compensable  neck  injury  and \nthat he did not sustain any permanent anatomical impairment for his left shoulder.  It was \nalso determined that claimant suffered wage loss disability in an amount equal to 15% to \n\nMikles – G006442 \n \n3 \n \nthe body as a whole. \n Since that time, claimant has primarily continued to receive medical treatment from \nDr. Cannon for pain management.  Claimant is currently being prescribed Hydrocodone, \nHysinga, and Lyrica.  Due to his continued opiate regimen, respondent had claimant’s \nmedical records reviewed by Dr. Carlos Roman who authored a report dated November \n8, 2023, in which he opined that claimant’s opiate regimen should be addressed based \non his belief that claimant is over-medicated.  Since that report, claimant has continued \nto treatment with Dr. Cannon with refills of his pain medication.   \n Respondent has requested that claimant undergo an in-person examination by Dr. \nRoman and claimant has not agreed to such an evaluation.  As a result, respondent has \nfiled  this  claim  contending  that  it  is  entitled  to  have  claimant  evaluated  by  Dr.  Roman \npursuant to A.C.A. §11-9-511(c). \n \nADJUDICATION \n Respondent  has  requested  that  claimant  undergo  an  evaluation  by  Dr.  Roman \npursuant to A.C.A. §11-9-511(c).  That subsection states: \n  Such physician as the employee, employer, or insurance \n  carrier may select and pay for may participate in the \n  examination if the employee, employer, or insurance \n  carrier so requests. \n \n \n In response, claimant contends that §11-9-511(c) does not create an independent \nstand-alone right to have an IME performed by a physician of respondent’s own choosing.  \nInstead,   claimant   contends   that   subsection   (c)   does   not   become   relevant   until \nsubsections (a) and (b) have been complied with. \n\nMikles – G006442 \n \n4 \n \n Subsection (a) of §11-9-511 states: \n  An injured employee claiming to be entitled to compen- \n  sation shall submit to such physical examination and \n  treatment by another qualified physician, designated  \n  or approved by the Workers’ Compensation Commission, \n  as the Commission may require from time to time if \n  reasonable and necessary.”  (Emphasis added.) \n \n \n In  this  case,  respondent  has  requested  that  claimant  undergo  an  in-person \nevaluation by Dr. Carlos Roman.  Regardless of whether A.C.A. §11-9-511(c) creates an \nindependent   stand-alone   right,   I   note   that   subsection   (a) allows the  Workers’ \nCompensation Commission to approve a physical examination if the Commission feels \nthat an examination is reasonable and necessary. \n I find that an examination by Dr. Roman in this case is reasonable and necessary.  \nClaimant suffered a compensable injury to his left shoulder and neck in July 2010 and \nunderwent  surgery  on  his  left  shoulder. Claimant  has  not  undergone  any  surgical \nprocedure on his neck.  Since that time, claimant has undergone extensive treatment in \nthe form of opiate medication.  While Dr. Roman authored a report indicating that it was \nhis belief that claimant was overmedicated, Dr. Roman based that opinion solely upon his \nreview  of  the  medical  records  and  did  not  have  the  benefit  of  actually  examining  the \nclaimant.  Respondent is now requesting such an examination.  I find that this examination \nis reasonable and necessary. \n In  reaching  this  decision,  it  should  be  noted  that  the  only  issue  before  the \nCommission  at  this  time  is  whether  claimant  should  undergo  an  in-person  physical \nexamination   by   Dr.   Roman.      Whether   claimant   should   continue   receiving   the \nrecommended pain medication from Dr. Cannon or undergo treatment by Dr.  Roman to \n\nMikles – G006442 \n \n5 \n \ntaper his use of pain medication is not currently before the Commission.    \n Given the fact that claimant has only been assigned a 4% permanent anatomical \nimpairment rating for an injury that occurred some 14 years ago and continues to receive \nprescriptions  of  opiate  medications,  it  does  not  seem  unreasonable  to  have  claimant \nundergo an in-person evaluation by Dr. Roman. \n Accordingly,   for   the   foregoing   reasons,   I   find   that   an   in-person   physical \nexamination of claimant by Dr. Roman is reasonable and necessary and approve of this \nexamination pursuant to A.C.A. §11-9-511(a).   \n \nORDER \n Pursuant  to  A.C.A.  §11-9-511(a),  claimant  is  to  undergo  an  in-person  physical \nexamination  by  Dr.  Roman.    This  examination  will  be  paid  for  by  the  respondent  and \nclaimant will be provided mileage for his travel to the evaluation. \n Respondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $376.45. \n IT IS SO ORDERED. \n \n     ________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":7954,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G006442 ERIC MIKLES, Employee CLAIMANT LOGAN COUNTY, Employer RESPONDENT ASSOCIATION OF ARKANSAS COUNTIES WCT, Carrier RESPONDENT OPINION FILED MAY 8, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas....","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","neck"],"fetchedAt":"2026-05-19T22:54:06.013Z"},{"id":"full_commission-G506822-2024-05-07","awccNumber":"G506822","decisionDate":"2024-05-07","decisionYear":2024,"opinionType":"full_commission","claimantName":"Sayel Mohammed","employerName":null,"title":"MOHAMMED VS.MAVERICK TRANSPORTATION AWCC# G506822 MAY 7, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Mohammed_Sayel_G506822_20240507.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Mohammed_Sayel_G506822_20240507.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  G506822 \n \nSAYEL MOHAMMED (DEC’D), EMPLOYEE             CLAIMANT \n \nMAVERICK TRANSPORTATION, EMPLOYER RESPONDENT NO. 1 \n \nCORVEL ENTERPISE COMP, INC.,  \nINSURANCE CARRIER/TPA RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL  \nDISABILITY TRUST FUND RESPONDENT NO. 2 \n \nOPINION FILED MAY 7, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little \nRock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE DAVID C. JONES,  \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID L. PAKE,  Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law Judge \nfiled November 14, 2023.  In said order, the Administrative Law Judge made the \nfollowing findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n\n \nMOHAMMED - G506822  2\n  \n \n \n2. That an employer/employee relationship existed on or about \nSeptember 9, 2015, when Sayel Mohammed sustained a \ncompensable injury resulting in his death. \n \n3. At the time of the injury, Sayel Mohammed earned an average \nweekly wage of $1,100.13.  \n \n4. On September 9, 2015, Sayel Mohammed was married to Krystle \nMartish.  \n \n5. On September 24, 2015, the carrier filed an Amended AR-2, \naccepting the compensability of the claim.  \n \n6. On March 28, 2017, Krystle Martish filed an AR-C for widow’s \nbenefits in Arkansas.  \n \n7. The respondent/carrier paid funeral expenses.  \n \n8. On August 4, 2017, Krystle Martish filed a request for voluntary \ndismissal of her claim.  \n9.  \nOn August 8, 2017, the parents of Sayel Mohammed filed an AR-C, \nclaiming rights to parental survivor benefits arising out of the death \nof their son on September 9, 2015.  \n \n10. On November 13, 2017, an Order of Dismissal of the claim filed by \nKrystle Martish was entered. \n \n11. That the parents of the decedent, Yaha I Mohammed and Yursa \nYameen Salama, have failed to satisfy the required burden of proof \nto show that they are entitled to partial dependency death benefits \npursuant to Ark. Code Ann. § 11-9-111 and Ark. Code Ann. §11-9- \n527.  \n \n12. The question of attorney fees is moot.  \n\n \nMOHAMMED - G506822  3\n  \n \n \n13. If not already paid, the respondents are ordered to pay for the cost \nof the transcript forthwith.  \n \n We have carefully conducted a de novo review of the entire record herein \nand it is our opinion that the Administrative Law Judge's November 14, 2023 \ndecision is supported by a preponderance of the credible evidence, correctly \napplies the law, and should be affirmed.  Specifically, we find from a \npreponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by the Full \nCommission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the Full \nCommission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":3516,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G506822 SAYEL MOHAMMED (DEC’D), EMPLOYEE CLAIMANT MAVERICK TRANSPORTATION, EMPLOYER RESPONDENT NO. 1 CORVEL ENTERPISE COMP, INC., INSURANCE CARRIER/TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT ...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.418Z"},{"id":"full_commission-G307065-2024-05-07","awccNumber":"G307065","decisionDate":"2024-05-07","decisionYear":2024,"opinionType":"full_commission","claimantName":"Russell Payne","employerName":"Arkansas Dept. Of Transportation","title":"PAYNE VS. ARKANSAS DEPT. OF TRANSPORTATION AWCC# G307065 MAY 7, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Payne_Russell_G307065_20240507.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Payne_Russell_G307065_20240507.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G307065 \nRUSSELL A.  PAYNE, EMPLOYEE       \n         CLAIMANT \nARKANSAS DEPT. OF TRANSPORTATION,  \nEMPLOYER                          RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER          RESPONDENT \n \n \nOPINION FILED MAY 7, 2024 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant represented by the HONORABLE EDDIE H. WALKER, Attorney, \nFort Smith, Arkansas.  \nRespondents represented by the CHARLES H. McLEMORE, Attorney, Little \nRock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Respondent appeals and Claimant cross-appeals an amended \nopinion and order of the Administrative Law Judge filed December 22, \n2023.  In said order, the Administrative Law Judge made the following \nfindings of fact and conclusions of law:  \n1. The stipulations agreed to by the parties at a \npre-hearing conference conducted on October 4, \n\nPAYNE - G307065 \n2023, and contained in a pre-hearing order filed \nthat same date are hereby accepted as fact. \n \n2. Claimant has failed to prove by a preponderance \nof the evidence that he is entitled to permanently \ntotally disabled as a result of his compensable \ninjury.  Claimant has met his burden of proving \nby a preponderance of the evidence that he has \nsuffered a loss in wage earning capacity in an \namount equal to 50% to the body as a whole. \n \n3. Respondent has controverted claimant’s \nentitlement to all unpaid indemnity benefits. \n \n4. Pursuant to A.C.A. §11-9-411 respondent is \nentitled to an offset in an amount equal to \n$189.06 per week. \n   \nWe have carefully conducted a de  novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s December \n22, 2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the Administrative \nLaw  Judge  are  correct  and  they  are,  therefore,  adopted  by  the  Full \nCommission.  \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \nFor prevailing on this appeal before the Full Commission, Claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \n\nPAYNE - G307065 \nAnn. §11-9-715 (Repl. 2012).  For prevailing on appeal to the Full \nCommission, the Claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b) (Repl. \n2012). \n \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n \n \nCommissioner Mayton concurs, in part, and dissents, in part. \n \n \nCONCURRING AND DISSENTING OPINION \n \nI concur, in part, and dissent, in part, from the majority’s opinion.  \nSpecifically, I concur with the finding that the claimant has not proven by a \npreponderance of the credible evidence that he is permanently and totally \ndisabled as a result of his compensable injury.  However, in my de novo \nreview of the file, I dissent from the finding that the claimant has met his \nburden of proving by a preponderance of the credible evidence that he has \nsuffered a loss in wage earning capacity in an amount equal to 50% of the \nwhole body.   \n \n\nPAYNE - G307065 \n This claim results from an admittedly compensable injury the \nclaimant sustained on May 17, 2013, after the hood of a truck fell on his \nhead and neck area.  In 2017, the claimant received an impairment rating \nof fourteen percent (14%) and later received an additional rating of twelve \npercent (12%) to the body as a whole.  The respondents have accepted \nthese ratings.  \n The claimant is currently receiving disability retirement benefits from \nthe respondent employer and now contends that he is entitled to wage-loss \ndisability benefits.  An administrative law judge issued an opinion awarding \nthe claimant fifty percent (50%) wage-loss disability over and above his \nimpairment ratings but ruled that the claimant is not permanently and \ntotally disabled.  Both parties filed appeals. \n The wage-loss factor is the extent to which a compensable injury has \naffected the claimant's ability to earn a livelihood.  Wal-Mart Stores, Inc. v. \nConnell, 340 Ark. 475, 10 S.W.3d 727 (2000).  To be entitled to any wage-\nloss disability benefit in excess of permanent physical impairment, a \nclaimant must first prove, by a preponderance of the evidence, that he/she \nsustained permanent physical impairment as a result of a compensable \ninjury.  Id.  \nThe Commission must determine disability after consideration of \nmedical evidence and other factors affecting wage-loss such as the \n\nPAYNE - G307065 \nclaimant's age, education, and work experience.  Tempworks Mgmt. Servs. \nv. Jaynes, 2020 Ark. App. 70, 593 S.W.3d 519 (2020).  Motivation, \npostinjury income, credibility, demeanor, and a multitude of other factors \nare matters to be considered in claims for these wage-loss disability \nbenefits in excess of permanent physical impairment.  Id.  These factors \nare considered in Beal v. Fairfield Bay Community Club, Inc., 2011 Ark. \nApp. 136 (2011) where the Court of Appeals stated: \nBeal  further  testified  that  he  had  worked  all  of \nhis  life  but  that  he  has  not  returned  to  work \nbecause \"they are not going to let him back out \nthere,  as  no  doctor  is  going  to  pass  him  on  a \nphysical and drug test and stuff.\" Beal is blind in \nhis  left  eye,  but  admitted  to  having  glaucoma \nbefore his injury.  According to Beal he does not \nfeel that there are any jobs he can perform and \nis now retired. The Commission disagreed and \nconcluded that \"the evidence shows that [Beal] \nis clearly not motivated to return to any form of \ngainful employment\" and noted that Beal's lack \nof motivation is a valid consideration in its denial \nof Beal's wage-loss disability claim.  \n \nCity of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d \n946 (1984). \n \nIn a 2010 case considering wage-loss, the Court of Appeals \naffirmed the Commission’s decision to deny wage-loss to a claimant who \nwas 25 years-old and had not looked for any work outside of her previous \njob as a cake decorator or work within her restrictions.  Morrison v. \nConfectionately Yours, Inc., 2010 Ark. App. 687 (2010).  This claimant \n\nPAYNE - G307065 \nreceived a seven percent (7%) disability rating, but the Court noted that \nthis claimant had not attempted to look for work within her restrictions and \nhad low motivation to return to any work other than her previous job.  Id. \nThe Commission found that the claimant developed skills as a cake \ndecorator that would serve her well in other lines of work.  Id. \nFurther, our rules are clear that:   \nThe employee shall not be required to enter \nany program of vocational rehabilitation against \nhis or her consent; however, no employee who \nwaives rehabilitation or refuses to participate in \nor cooperate for reasonable cause with either \nan offered program of rehabilitation or job \nplacement assistance shall be entitled to \npermanent partial disability benefits in excess \nof the percentage of permanent physical \nimpairment established by objective physical \nfindings.  \n \nArk. Code Ann. § 11-9-505(b)(3).  \nAn  employer  relying  on  this  defense  must  show  that  the  claimant \nrefused   to   participate   in   a   program   of   vocational   rehabilitation,   job-\nplacement assistance, or through some other affirmative action indicated an \nunwillingness  to  cooperate  in  those  endeavors, and  such  refusal  to \ncooperate  was  without  any  reasonable  cause. Tillery  v.  Alma  Sch.  Dist., \n2022 Ark. App. 425 (2022). \n The claimant attended his initial intake with Systemedic on August \n22, 2023. (Resp. Ex. 2, Pp. 4-12).  Ms. Hampton determined that “[b]ased \n\nPAYNE - G307065 \non Mr. Payne’s transferable skills, functional ability, records reviewed of his \ninjury and the past work history, he is capable of working in the Medium \ncategory of physical work demands.” (Resp. Ex. 2, P. 11).  However, Ms. \nHampton’s notes reflect that the claimant “stated he is not interested in \nreturning to work and/or receiving vocational rehabilitation services. He \nreported he experiences too much pain and believes he is not capable of \nperforming duties of a job.  He stated he would like to stay off work to take \ncare of himself.” Id.   \n On October 9, 2023, Systemedic sent a letter to the claimant in an \nattempt to follow-up on his intake appointment providing him with a list of ten  \navailable  jobs  within  a  thirty-to-sixty-mile  radius  of  his  home  for  which  he \nwas qualified and were selected in consideration of the claimant’s education, \nskills, work history, and within the results of his FCE. (Resp. Ex. 2, P. 13).  \nAlthough the claimant would later contact Ms. Hampton stating that \nhe is interested in her services, his actions prove otherwise.  (Resp. Ex. 2, \nPp. 15-16).  At the December 2023 hearing, the claimant had the following \nexchange with the respondents’ attorney regarding the claimant’s work with \nMs. Hampton: \nQ: (by  Mr.  McLemore)  You  thought  you  were \nsaying you didn’t think you were physically able \nto do a job. \n \n\nPAYNE - G307065 \nMr. Walker:  Excuse  me.  He  didn’t  say  he \nthought that. He said that is what \nhe said. \n   \nA: Yes.  That is how I understood it.  She didn’t say \nto  me  about  doing  the  capacity  or  whatever.  \nHer  words  was  not  about  doing – what  is  it \ncalled – the – \n \nQ: (by  Mr.  McLemore)  The  functional  capacity \nevaluation? \n \nA: No.  Her  wanting  to  get  me  back  into  the  job \nworkforce. \n \nQ: Okay. \n \nA: She did not say that. She said about me working \na job.  And I said no, I didn’t think I could. \n \nQ: Okay, so you don’t think you could? \n \nA: No. \n \nQ: Well, I want to ask you what you mean by that? \nYou don’t think you can do the crew leader job \nor you don’t think you can do any job? \n \nA: I don’t – I do not believe that I can hold down a \n40-hour  a  week  job  with  the  medication  I  take \nand the shape that I am in and stuff.  I don’t. \n \n(Hrng. Tr., P. 45). \nWhen asked if he had considered a part-time job, the claimant \ntestified: \nQ: All right.  Did you tell Ms. Hampton that you \nthought you could work a part-time job? \n \nA: Maybe.  I hadn’t tried a part-time job. \n \n\nPAYNE - G307065 \nQ: Have you thought about a part-time job? \n \nA: I  have  thought  about  it.  Like  I  said  with  the \nmedication and the way I am, I don’t know that \nI could. \n \nQ: Okay.  What job have you applied for? \n \nA: I haven’t. \n \nQ: Have you looked for a job somewhere? \n \nA: No. \n \nQ: Okay.  So you are not actively looking for a job? \n \nA: I have not put in for a job anywhere. \n \n(Hrng. Tr., P. 46). \n Upon receiving the list of prospective jobs from Ms. Hampton, the \nclaimant did nothing.  (Hrng. Tr., P. 48).  When asked if he applied for any \nof the ten jobs selected by Ms. Hampton or whether he contacted any of \nthe prospective employers, the claimant testified that he had not, he simply \n“didn’t take it that for me to contact them or put in for them or nothing.” \n(Hrng. Tr., P. 48).  \nWhen questioned directly whether he told Ms. Hampton that he is \nuninterested in vocational rehabilitation, the claimant stated that, “[w]hat I \nunderstood from her question was could I work a full-time job and my \nresponse was, no, I didn’t think I could.” (Hrng. Tr., Pp. 60,61). \n The claimant has an extensive work history and numerous \ntransferrable skills, which Ms. Hampton identified as: paving; structural \n\nPAYNE - G307065 \nfabrication, installation, and repair; casting; crushing and grinding; mixing; \nand protecting.  (Resp. Ex. 2, P. 11).  He was employed with the \nrespondent employer for twenty-five (25) years, where his role included \noffice and computer work as well as physical labor.  (Hrng. Tr., Pp. 35-38).  \nIn fact, during his time with the respondent employer, the claimant was a \ncrew leader and supervisor which allowed him to develop supervisory and \norganizational skills.  (Hrng. Tr., Pp. 34, 36).  There is no doubt that the \nclaimant is a skilled and capable employee with a wide range of \ntransferrable skills. \n The claimant’s testimony reflects that his behavior is entirely self-\nlimiting and, it appears, he is content to collect disability-retirement benefits \nrather than return to the job market.  The results of the claimant’s FCE, which \nwere noted to be reliable with 51 of 53 consistency measures within expected \nlimits, showed that the claimant demonstrated the ability to perform work in \nthe medium classification.  (See Cl. Ex. 1, Pp.39-57).  \nThere is no evidence in the record that any physician has advised the \nclaimant  that  he  is  unable  to  work  a  forty-hour  week  job  at  medium  duty. \nFurther, the only source claiming that the claimant is limited to two to three \ndays a week due to his medication is the claimant himself.  \nThe claimant worked for the respondent employer for years taking the \nsame medication.  He simply does not wish to return to work and has made \nit  clear  that he  will  resist  any  opportunities  for  assistance  in  doing  so.  For \n\nPAYNE - G307065 \nthese reasons, it is clear the claimant has refused to participate in vocational \nrehabilitation or return to the job market without cause and is, therefore, not \nentitled to wage-loss disability. \n The claimant has been released to return to work at medium duty and \nno physician or other provider has limited him to less than forty (40) hours a \nweek  at  medium  duty.  The  only  person  who  has  said  the  claimant  cannot \nwork forty (40) hours a week at medium duty or cannot work because of the \nmedication he is taking is the claimant himself.  \nThe claimant should not be rewarded for his self-limiting behavior \nand his refusal to even look for a job or try to return to work.  To rule \notherwise and award the claimant wage-loss is in direct conflict with Ark. \nCode Ann. § 11-9-505(b)(3). \nAccordingly, for the reasons set forth above, I concur, in part, and \ndissent, in part. \n                                                          _______________________________ \n     MICHAEL R. MAYTON, Commissioner","textLength":14591,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G307065 RUSSELL A. PAYNE, EMPLOYEE CLAIMANT ARKANSAS DEPT. OF TRANSPORTATION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER RESPONDENT OPINION FILED MAY 7, 2024 Upon review before the FULL COMMISSION i...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:29:45.435Z"},{"id":"alj-H304937-2024-05-07","awccNumber":"H304937","decisionDate":"2024-05-07","decisionYear":2024,"opinionType":"alj","claimantName":"Brandon Biddle","employerName":"Sequin Moreau Napa Cooperage","title":"BIDDLE VS. SEQUIN MOREAU NAPA COOPERAGE AWCC# H304937 May 7, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BIDDLE_BRANDON_H304937_20240507.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BIDDLE_BRANDON_H304937_20240507.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H304937 \n \nBRANDON J. BIDDLE, \nEMPLOYEE                                                                                                              CLAIMANT \n \nSEQUIN MOREAU NAPA COOPERAGE, \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nTRAVELERS INDEMNITY CO. OF CONNECTICUT/ \nTHE TRAVELERS CO. \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE  \nFILED MAY 7, 2024 \n \nHearing conducted on Friday, May 3, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Hot Springs, \nGarland County, Arkansas. \n \nThe claimant, Mr. Brandon J. Biddle, pro se, of Malvern, Hot Spring County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Friday, May 3, 2024, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark. Code  Ann. §  11-9-702(a)(4)  (2024 Lexis \nReplacement) and Commission Rule 099.13 (2024 Lexis Replacement). \n The respondents  filed  a letter motion to  dismiss without  prejudice (MTD) with  the \nCommission on both January 3, 2024, and on March 12, 2024, requesting this claim be dismissed \nwithout prejudice for lack of prosecution. Consistent with the applicable Arkansas law, thereafter \nthe Commission mailed a copy of both the respondents’ MTD and the subject hearing notice to the \nclaimant via the United States Postal Service (USPS), Certified Mail, Return Receipt Requested, \nto his last known address of record with the Commission, which the claimant received on March \n\nBrandon J. Biddle, AWCC No. H304937 \n \n2 \n \n14,  2024,  and  March  29,  2024,  respectively. (Commission Exhibit 1; Respondents’ Exhibit 1). \nThereafter, the claimant failed and/or refused to respond in any way to either the Commission or \nto the  respondents; and  she  failed  and/or  refused to  appear  at  the  subject  hearing.  The  claimant \nnever objected in any way to the respondents’ MTD. The claimant had at one time been represented \nby counsel, Ms. Laura Beth York, of the Rainwater, Holt & Sexton law firm, but was pro se at the \ntime of the hearing date. (RX1; Reporters’ Hearing Transcript) \n The  record  herein  consists  of the  hearing  transcript  and  any  and  all exhibits  contained \ntherein and attached thereto. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the respondents’ \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing and contained in the record conclusively demonstrates the \nclaimant has both failed and/or refused to prosecute his claim, and he has failed and/or refused to \nrequest a hearing within the last six (6) months. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2.        After the Commission mailed due and legal notice of both the respondents’ letter  \n                 MTD as well as a copy of the notice for the subject hearing to the claimant’s last \n                 known address of record with the Commission, the claimant failed and/or refused \n                 to respond to the MTD in any way; or to object to the subject MTD; or to request a \n                 hearing on the merits of his claim.  \n\nBrandon J. Biddle, AWCC No. H304937 \n \n3 \n \n \n            3.         Moreover, the claimant failed and/or refused to appear at the subject hearing and, \n                        therefore, has waived his right to a hearing on the MTD. \n \n      4.         The claimant has failed to request a hearing on the merits of his claim within the \n                   last six (6) months. \n \n 5. Therefore, the respondents’ aforementioned letter MTD(s) filed with the \n                  Commission should be and hereby is(are) GRANTED. \n      \n      6.         This claim is dismissed without prejudice to its refiling pursuant to the deadlines \n                  prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission Rule 099.13. \n \n This opinion  and  order  shall not be  construed  to  prohibit  the claimant, his attorney, any \nattorney he may retain in the future, or anyone acting legally and on his behalf from refiling this \nclaim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The  respondents shall pay the court reporter’s invoice within twenty  (20) days  of their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5724,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304937 BRANDON J. BIDDLE, EMPLOYEE CLAIMANT SEQUIN MOREAU NAPA COOPERAGE, EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO. OF CONNECTICUT/ THE TRAVELERS CO. INSURANCE CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED MAY 7, 2024 Hearing conducte...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:53:53.580Z"},{"id":"alj-H005594-2024-05-07","awccNumber":"H005594","decisionDate":"2024-05-07","decisionYear":2024,"opinionType":"alj","claimantName":"Francisco Bonilla","employerName":"Juan Carlos Calderon","title":"BONILLA VS. JUAN CARLOS CALDERON AWCC# H005594 May 7, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BONILLA_FRANCISCO_H005594_20240507.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BONILLA_FRANCISCO_H005594_20240507.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H005594 \n \nFRANCISCO BONILLA, Employee CLAIMANT \n \nJUAN CARLOS CALDERON, Employer RESPONDENT NO. 1 \n \nLIBERTY MUTUAL GROUP, Insurance Carrier/TPA RESPONDENT NO. 1 \n \nPICK-IT CONSTRUCTION, Employer RESPONDENT NO. 2 \n \nEMPLOYERS MUTUAL CASUALTY, Insurance Carrier/TPA RESPONDENT NO. 2 \n \n OPINION FILED MAY 7, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents No. 1 represented by JASON RYBURN, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by DAVID C. JONES, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On February  8,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on November 13, 2023, and a Pre-hearing \nOrder  was  filed  on November  14,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The respondents have controverted the claim in its entirety. \n By agreement of the parties the issues to litigate are limited to the following: \n\nBonilla – H005594 \n \n-2- \n 1. Whether Claimant was an employee of Respondent No. 1 or Respondent No. 2 on July \n14, 2020. \n 2.  Whether  Claimant  sustained  a  compensable  injury  to  his  lumbar  spine  and  right \nshoulder on or about July 14, 2020. \n 3.  Whether  Claimant  is  entitled  to  medical  treatment  for  his  compensable  lumbar  spine \nand right shoulder injuries. \n 4. Whether Claimant is entitled to temporary total disability benefits from July 15, 2020, \nto a date yet to be determined.  \n 5. Compensation rates. \n 6. Whether Claimant’s attorney is entitled to an attorney fee. \n 7. Respondents No. 1 and Respondents No. 2 raise lack of notice as a defense. \n 8. Respondents No. 2 raise statute of limitations defense. \n The claimant's contentions are as follows: \n“1. The above listed proposed stipulations. \n \n2.  The  Claimant  was  injured  on  July  14,  2020  while  he  was \nworking  on  a  roof,  which  he  slipped  and  fell  ten  (10)  feet  from, \nlanding  on  concrete  and  fracturing  the  vertebrae  within  his  back \nand  his  rights  scapula.  The  Claimant  continued  working  for  four \n(4)  more  hours  until  his  wife  picked  him  up  and  took  him  to  a \nhospital. \n \nThe  Claimant  was  seen  the  evening  of  July  14,  2020  in  the \nemergency  department  of  the  Baptist  Hospital  Medical  Center. \nDuring his time there, Claimant was examined, given medications, \nordered  an  MRI,  and  given  CT  scans  of  his  head  and  cervical \nspine.  Following  this,  he  was  provided  an  arm  sling  and  told  to \nfollow  up  for  his  scapula  fracture.  The  medications  administered \nincludes   an   infusion   of   sodium   chloride,   morphine   injection, \niopamidol,   ondansetron,   a   contrast   agent   for   his   MRI.   He \nexperienced  substantial  headache,  pain  to  his  right  shoulder,  pain \nin  his  back,  nausea,  and  pain  within  his  ribs.  Claimant  was  found \n\nBonilla – H005594 \n \n-3- \nto  have  been  traumatically  injured  with  fractures  of  his  spine \nvertebras, L1-L4, and a fracture within his shoulder blade. He was \nprescribed   diazepam   and   oxycodone-acetaminophen.   He   was \nadvised to follow-up as soon as possible \n \nOn  July  17,  2020,  the  Claimant  was  seen  by  Dr.  Jeff  Evans  at \nBaptist  Health  Orthopedics  Clinic  in  Fort  Smtih.  During  this \nappointment,  an  x-ray  was  taken  and  further  confirmed  a  scapular \nbody fracture. It was stated for the Claimant to continue wearing a \nsling  and  follow-up  in  one  week.  Dr.  Evans  noted  that  more \ndetailed evaluation of the CT scan taken prior would be conducted. \nHe  additionally  stated  that  the  Claimant  may  need  an  ORIF,  open \nreduction  and  internal  fixation  surgery,  to  his  right  scapula  in  the \nfuture. \n \nOn July 24, 2020, the Claimant returned to Dr. Evans’ office for a \nfollow-up  appointment  regarding  his  right  scapula.  Dr.  Evans’ \nreading  of  the  x-rays of the Claimant’s injury showed no further \ndisplacement,   and   though   Dr.   Evans   recommended   surgery, \nClaimant preferred not to get surgery unless the fracture displaces. \nHe was advised to continue wearing a sling and to follow-up again \nin ten (10) days. \n \nOn August 4, 2020, the Claimant returned to Dr. Evans’ office for \nhis   follow-up   appointment.   X-rays   showed   that   the   fracture \ncontinued  healing  with  no  further  displacement.  Claimant  was  to \ncontinue wearing an arm sling and return again in two (2) weeks. \n \nOn August 6, 2020, the Claimant called to inquire about the status \nof his medication prescription order, which was approved. \n \nOn  August  18,  2020,  the  Claimant  returned  to  Baptist  Health \nOrthopedics. His x-rays were ready by Dr. Evans and he noted the \nfracture that was continuing to heal. Follow-up in two (2) weeks. \n \nOn September 1, 2020, the Claimant was seen again by Dr. Evans, \nwho reviewed his fracture and confirmed it was continuing to heal. \nAdditionally,   PROM   exercises   were   conducted   to   improve \nClaimant’s  range  of motion.  Claimant  was told  to  continue  not \nworking and to come back in four (4) weeks. \n \nOn October 1, 2020, the Claimant was seen by Dr. Evans where he \nstated  that  the  Claimants  fracture  had  healed  and  there  was  no \nfurther  displacement.  They  continued  ROM  exercises,  refilled  his \n\nBonilla – H005594 \n \n-4- \nprescription  for  Lortab  5  #28,  and  advised  him  to  follow-up  if \nsymptoms worsen or discontinue improvement. \n \n3.  The  Claimant  reserves  the  right  to  amend  and  supplement  his \ncontentions after additional discovery has been completed.” \n \n Respondents No. 1 contentions are as follows: \n“The  claimant  was  allegedly  injured  on  7-14-20.  A  claim  was  not \nfiled  until  6-8-21.  Claimant  was  not  an  employee  of  Juan  Carlos \nCalderon.” \n \n Respondents No. 2 contentions are as follows: \n“1.  Respondents  No.  2  contend  that  the  statute  of  limitations \nshould  bar  any  claimant  against  Respondent  No.  2  based  on  the \nCommission’s prior actions in what was tanamount to a dismissal \nof Respondents No. 2 and the joinder of Respondents No. 1. In that \nregard, the Commission previously investigated the \nemployer/employee relationship, determined that the Claimant was \nnot  an  employee  of  Respondent  No.  2  based  on  the  Compliance \nDivision’s  investigation,  and  allowed  Respondent  No.  2  to  be \ndismissed as a party to the claim. Furthermore, the Claimant failed \nto  properly  prosecute  the  claim  for  benefits  and  failed  to  take  any \naction  against  Respondents  No.  2  in  over  three  years  since  the \ninjury  alleged  herein  and  after  the  Claimant  was  well  aware  that \nRespondents  No.  2  had been  dismissed  as  a  party.  Accordingly,  it \nhas been more than two years since the injury date and no benefits \nwhatsoever  have  been  paid  by  Respondents  No.  2,  any  claim \nagainst  Respondents  No.  2  should  be  barred  by  the  statute  of \nlimitations. Otherwise, Respondents No. 2 contend that no benefits \nshould  be  due  from  Respondents  No.  2  until  they  are  joined  as  a \nparty to litigation on or about November 1, 2023. \n \n2.   Respondents   No.   2   contend   that   there   was   no   direct \nemployer/employee     relationship     or     contractor/subcontractor \nrelationship   between   the   Claimant   and   Respondent   No.   2.   It \nappears  that  Respondent  No.  2  had  the  general  contract  at  the \nlocation of the incident and had a subcontract with Respondent No. \n1, Mr. Calderon, to perform the roofing job. \n \n3. Respondents No. 2 contend that Mr. Calderon (Respondent No. \n1  Employer)  was  probably  the  direct  employer  of  the  Claimant, \nand Mr. Calderon had workers’ compensation coverage and would \ntherefore be liable for benefits. \n\nBonilla – H005594 \n \n-5- \n \n4.  Respondents  No.  2  contend  they  would  be  entitled  to  an  offset \nfor  any  unemployment  benefits  paid  to  the  Claimant  should  the \nClaimant have applied for and received said benefits. \n \n5.  Respondents  No.  2  would  reserve  the  right  to  amend  and \nsupplement   their   contentions   after   the   discovery   has   been \ncompleted.” \n \n The claimant in this matter is a 61-year-old male who was employed as a roofer on July \n14, 2020. On that day, the claimant was working on the roof of  a home  located at 1915 Cherry \nHills Drive, Fayetteville, Arkansas. Respondent No. 2 in this matter was the prime contractor of \nthe  home  located  at  1915  Cherry  Hills  Drive,  Fayetteville,  Arkansas,  on  July  14,  2020. \nRespondent  No.  2  engaged  Respondent  No.  1  as  a  subcontractor  for  the  roof  work  at  the  1915 \nCherry Hills Drive home on July 14, 2020. \n The claimant alleges that he suffered compensable injuries to his lumbar spine and right \nshoulder  on  July  14,  2020,  when  he  fell  from  the  roof  at  the  1915  Cherry  Hills  Drive  home  he \nwas working on. Following is the claimant’s direct examination testimony about the fall and the \nevents shortly thereafter: \nQ What happened on July 14\nth\n of ’20? \n \nA I fell off the house. \n \nQ Can you describe how that happened? \n \n(Witness responds in Spanish) \n \n THE   INTERPRETER:   Interpreter   requests   for   him   to \nrepeat it one more time. \n \n THE WITNESS: Okay. I picked up a bundle. When I took \na step, the paper ripped. I took a second step, the paper ripped there \nand  then  I  fell  back  on  the  gutter  and  with  the  bundle  and \neverything, I fell off the house. \n \n\nBonilla – H005594 \n \n-6- \nQ [BY MR. KETCHAM]: and where did you land? \n \nA On the concrete at the entry of the house. \n \nQ Okay. And did you feel pain? \n \nA At the moment I didn’t feel. I felt dead. \n \nQ Okay. Did you ultimately feel pain? \n \nA I  sat  and  I  stayed  seated.  The  ladies  that  do  housekeeping \ngave me ice and they put ice on there where I fell. \n \nQ The lady that does housekeeping at the house that you were \nroofing? \n \nA Yes. Correct. \n \nQ Okay. Did anyone eyewitness your fall? \n \nA No. \n \nQ Okay.  How  soon  was  it  that  someone  else  on  the  site  had \nrealized that you had fallen from the roof? \n \nA Right at that moment because everyone was up above. \n \nQ On the roof? \n \nA On the roof, yes, above. \n \nQ Okay. Was Mauricio Solis on-site that day? \n \nA Of course he was at the place. \n \nQ Okay. Did he speak with you after your fall? \n \nA No. \n \nQ Okay. did you speak with anyone after your fall? \n \nA No. Just with Mauricio. \n \nQ So you did speak with Mauricio? \n \n\nBonilla – H005594 \n \n-7- \nA Yes, of course, after I fell. \n \nQ Okay. \n \nA He asked me if I was okay and I said, “I am not okay. I \nneed to go to the hospital.” \n \nQ Okay. \n \n The claimant testified on direct examination that he called his “ex”, and  she  came  and \ntook him to the hospital. Medical records were introduced at Claimant’s Exhibit 1, pages 1-7 \nfrom  Baptist  Health  Medical  Center  Emergency  Room  dated  July  14,  2020.  These  records \nindicate  that  the  claimant  was  seen  by  Dr.  James  Russell.  Following  are  portions  of  those \nemergency department provider notes: \nChief Complaint \nPatient presents with fall. \n \nFrancisco Bonilla is a 57 y.o. male complains of injury from a fall \nfrom a 10 foot roof. He states at 11:00 today he was at work on a \nroof  and  fell  off  backwards  onto  concrete  injuring  the  back  of  his \nhead right shoulder and his whole right side. He states initially did \nnot  feel  too  bad  and  his  colleagues  helped  him  get  over  into  the \nshade  of  a  tree.  He  had  no  loss  of  consciousness.  His  wife  was \ncontacted  at  noon  but  he  felt  that  he  would  be  okay.  Then  at  4:00 \nshe  called  back  and  they  advised  that  she  come  get  him  and  she \ndrove an hour to go get him and brought him here. He was able to \ninitially ambulate but since her picking him up he states the pain is \ngetting  worse  and  worse.  He  is  complaining  of  a  substantial \nheadache  with  associated  nausea  but  no  vomiting.  He  does  have \nhead pain, right rib pain and significant lower back pain. He denies \nany  numbness  or  tingling.  His  wife  is  present  with  him  to  assist \nwith translation as he speaks minimal English. The patient does go \non to admit that he has taken some “Panadom” which is an El \nSalvadorian pain medication. \n \n*** \nFinal diagnosis: \nFall from roof, initial encounter \nClosed  fracture  of  transverse  process  of  lumbar  vertebra,  initial \nencounter (HCC). \n\nBonilla – H005594 \n \n-8- \nClosed  nondisplaced  fracture  of  body  of  right  scapula,  initial \nencounter. \nMuscle contusion. \n \n On that same day the claimant underwent an MRI of his lumbar spine at Baptist Health. \nFollowing is a portion of that diagnostic report authored by Dr. Jeffrey Behar: \nSoft tissues: Marked edema and soft tissue hematoma is identified \nin  the  RIGHT  paraspinous  muscle  bodies.  Increased  T2  signal  is \nnoted  in  the  RIGHT  psoas  muscle  consistent  with  psoas  muscle \nstrain or tear. \n \nIMPRESSION: \n1. L3, L4 and L5 RIGHT transverse process fracture. \n2. RIGHT paraspinous muscle body hematoma. \n3. RIGHT psoas muscle hematoma or tear. \n4. Degenerative disc disease at L4-L5 and L5-S1. \n \n On  July  17,  2020,  the  claimant  was  seen  by  Dr.  Jeffrey  Evans  at  Baptist  Health \nOrthopedics Clinic. Following is a portion that medical report: \nChief Complaint \nPatient presents with  \n* Shoulder Pain \nRight Shoulder Pain \n \n57 year old male with right posterior shoulder pain since falling off \na roof and landing on his back 3 days ago. He was noted to have a \ncomminuted  right  scapular  body  fracture,  placed  in  a  sling  and \nreferred. \n \n*** \nAssessment and Plan: \n1. Pain of right scapula (Primary) \n - XR Scapula 2 Vw Bilateral \n2.  Closed  traumatic  minimally  displaced  fracture  of  body  of  right \nscapula, initial encounter \n Assessment & Plan \n Xrays today show comminuted right scapular body fracture \nwhich extends into glenoid. \n Continue Sling. \n Will  get  remainder  of  CT  scan  on  disk  to  fully  evaluate \nfracture. \n\nBonilla – H005594 \n \n-9- \n May need ORIF right scapula soon. \n Follow up one week. \n \n On  July  24,  2020,  the  claimant  was  again  seen  by  Dr.  Evans.  Following  is  a  portion  of \nthat medical report: \nChief Complaint \nPatient presents with \n* Follow-up \nF/U Right Scapula FX \n \nFollow  up  right  ND  scapular  body  fracture  with  extension  into \nglenoid  (transverse  fracture  pattern?  Now  10  days  out,  doing \nbetter. \n \n*** \nAssessment & Plan: \nMy  personal  reading  of  X-rays  of  right  scapula  show  no  further \ndisplacement. \nHe does not want surgery unless the fracture displaces. \nContinue sling. \nFollow up in 10 days with True AP right shoulder and Scap Y. \n \n On August 14, 2020, the claimant was again seen by Dr. Evans. Following is a portion of \nthat medical report: \nChief Complaint \nPatient presents with \n* Follow-up \nF/U Right Scapula FX \n \nFollow up right scapular body fracture with glenoid extension now \n3 weeks out doing better. \n \n*** \nAssessment and Plan: \n1. Closed  traumatic  minimally  displaced  fracture  of  body  of  right \nscapula with routine healing (Primary) \n Assessment & Plan \n My  personal  reading  of  X-rays  of  right  scapula  show \nhealing fracture and no further displacement. \n Continue right arm sling. \n Follow up in 2 weeks with right scapula series. \n\nBonilla – H005594 \n \n-10- \n \n On October 1, 2020, the claimant was again seen by Dr. Evans. Following is a portion of \nthat medical report: \nChief Complaint \nPatient presents with \n* Follow-up \nF/U Right Scapula FX \n \nFollow up right scapular body fracture now 2 ½ months out doing \nbetter. \n \n*** \nAssessment and Plan: \n1. Closed  traumatic  minimally  displaced  fracture  of  body  of  right \nscapula with routine healing (Primary) \n Assessment & Plan \n My  personal  reading  of  X-rays  of  right  scapula  show \nhealed fracture and no further displacement. \n ROM exercises. \n Refill Lortab 5 #28. \n Follow up prn. \n \n The claimant in this matter speaks limited English and used a Spanish interpreter during \nthe  hearing.  The  claimant  testified  about  how  he  was  hired  to  work  on  the  roof  of  the  home  at \n1915 Cherry Hills Drive and how he was paid as follows: \nQ Okay.  On  July  14\nth\n of  2020,  were  you  roofing  a  house  at \n1915 Cherry Hills Drive in Fayetteville? \n \nA Correct. \n \nQ Okay. And how did you get that job? \n \nA Mauricio hired me because Chepe contracted him to. \n \nQ Who is Chepe? \n \nA Chepe Calderon. \n \nQ Is that Juan Calderon? \n \n\nBonilla – H005594 \n \n-11- \nA Uh-huh. \n \nQ Is that a “yes”? \n \nA Yes. His name is Juan Jose Calderon. \n \nQ What was your payment arrangement for roofing the house \nat 1915 Cherry Hills Drive in Fayetteville? \n \nA Daily salary was 160. \n \nQ Okay. And were you hired directly by Mauricio Solis? \n \nA Correct. \n \nQ Okay. Were you paid for that job? \n \nA Yes. They paid me the two days I had done. \n \nQ Okay. And by whom were you paid? \n \nA Solis did it because Calderon would pay Solis. \n \nQ And Solis would pay everybody? \n \nA Of course. Yes. \n \nQ Okay. Were you paid in check or cash? \n \nA Me? Cash? \n \nQ Did Solis pay you himself? \n \nA Yes. Him personally. \n \n The claimant originally filed an AR-C which was received by the Commission on August \n11, 2020. That AR-C named Mauricio Penate Solis as the employer. That document is found at \nRespondent No. 2’s Exhibit 1, page 2. This administrative law judge’s office sent a letter to Mr. \nSolis informing him of the claim against him via certified and regular mail on October 30, 2020. \nThat letter went without answer and is found at Respondent No. 2’s Exhibit 1, page 7. On \n\nBonilla – H005594 \n \n-12- \nDecember 3,  2020,  this  administrative  law  judge’s  office  sent  another  letter  and  prehearing \nconference notice via certified and regular mail to Mr. Solis, which was again unanswered and is \nfound at Respondent No. 2’s Exhibit 1, pages 8-9.  On  March  10,  2021,  this administrative  law \njudge’s office again sent a letter and prehearing conference notice to Mr. Solis by regular mail. \nThat letter and notice is found at Respondent No. 2’s Exhibit 1, pages 10-11.  Again,  that  letter \nand notice went unanswered. \n The  claimant  filed  an  amended  AR-C  in  this  matter  naming  Respondent  No.  2  as  the \nemployer. That AR-C was filed on June 2, 2021, and is found at Respondent No. 2’s Exhibit 1, \npage 13. A final AR-C  was filed by the claimant on June 8, 2021, adding Respondent No. 1 as \nthe employer.  \n The  parties  in  this  matter  made  on-the-record stipulations regarding the Commission’s \ninability to communicate with Mr. Mauricio Solis and that Mauricio Solis did not have workers’ \ncompensation  insurance  coverage  in  the  state  of  Arkansas.  Following  is  that  on-the-record \ndiscussion: \nTHE COURT: In talks prior to going on the record, we had \na discussion. There is an AR-C that is found in Respondent No. 2’s \nExhibit 1 and  that is found at Pages 1 and 2 of Respondent 2’s 1. \nThat  is  an  AR-C  filed  by  the  Claimant  through  his  attorney,  Mr. \nKetcham. Regarding a Mauricio Solis. \n \n I  am  going  to  repeat  a  statement  that  we  discussed  earlier \nand asked all of the parties if they agree to stipulate to this and we \nwill do so just by verbal acknowledgement on the record. \n \n Mr.  Solis  was  noticed  up  originally  by  the  Commission  to \nbegin  the  process  of  going  to  a  hearing  after  the  AR-C  was  filed. \nThe Commission was unsuccessful in ever reaching or having any \ncommunication  with  Mr.  Solis  after  having  attempted  to  do  so \nthrough  my  office  and  also  engaging  the  help  of  one  of  the \nCommission’s investigators to try to find Mr. Solis. \n \n\nBonilla – H005594 \n \n-13- \n Do  you  agree  with  that,  Mr.  Ryburn,  to  that  stipulation  of \nthose as facts? \n \n MR. RYBURN: Yes, Your Honor. \n \n THE COURT:  Mr. Jones? \n \n MR. JONES: Yes, Your Honor. For the record, of course, I \nworked   for   the   Commission   for   years.   That   is   what   the \nCommission  does  as  far  as  the  investigators  go,  they  try  to  find \ncoverage.  I  am  not  testifying  as  an  expert  here,  but  as  far  as  my \nknowledge  internal  with  the  Commission,  that  is  what  they  do. \nApparently Mr. Solis had no coverage no matter what at the end of \nthe day, so we agree. \n \n THE COURT: Well, let’s go ahead and make that – and  I \nmeant to say that a second ago. As far as the Commission’s records \nare concerned, a check was done on Mr. Solis and no workers’ \ncompensation coverage in the state of Arkansas was found. \n \n Do you agree with that, Mr. Ryburn? \n \n MR.  RYBURN:  I  think  for  the  name  Mauricio  Solis.  I \ndon’t know if he has another business or anything else. \n \n THE COURT: Right. For the individual named in the AR-\nC, no insurance coverage was found. \n \n MR. RYBURN: Yes, I can agree to that. \n \n MR. JONES: Respondent 2 can stipulate to that. \n \n THE COURT:  Mr. Ketcham, do you agree with all of those \nstipulations? \n \n MR. KETCHAM: I do agree with those stipulations. \n \n THE   COURT:   I   am   not   going   to   write   that   in   my \nPrehearing  Order,  but  it  is  in  the  beginning  of  our  record  here \ntoday  and  I  will  use  that  as  I  move  through  the  writing  of  the \nopinion process. \n \n Okay. So I am going to admit Commission Exhibit 1 at this \ntime, which is my Prehearing Order, if  I hear no objection.  It will \nbe admitted. \n\nBonilla – H005594 \n \n-14- \n \n Both   Respondent   No.   1,   Juan   Carlos   Calderon,   and   Respondent   No.   2, Pick-It \nConstruction,  had workers’ compensation  insurance  coverage  in  place  on  July  14,  2020,  when \nthe  claimant  alleges  to  have  sustained  compensable  injuries  to  his  right  shoulder  and  lumbar \nspine. Mr. Juan Calderon, Respondent No. 1, was represented by counsel at the hearing but did \nnot  attend  the  hearing  in  this  matter.  Respondent  No.  2  was  also  represented  by  counsel  and \nNathan Ogden, the president/owner of Pick-It Construction, attended the hearing and was called \nas a witness. \n Mr. Ogden was called as a witness by the claimant’s attorney. Mr. Ogden was asked \nabout the 1915 Cherry Hills Drive home and Pick-It Construction’s relationship with Juan Carlos \nCalderon as follows: \nQ Good afternoon. My name is Matt Ketcham and I represent \nMr. Bonilla. We were introduced right as we came in the door and \nI got Ogden. Can I have your full name. \n \nA Nathan Ogden, O-g-d-e-n. \n \nQ Nathan  Ogden.  Thank  you,  Mr.  Ogden.  And  what  is  your \nposition with Pick-It Construction? \n \nA President and owner of Pick-It Construction. \n \nQ Okay. And I am going to get right to the point, okay? \n \n On July 14\nth\n of 2020, did you all have a contract to roof the \nhouse of 1915 Cherry Hills Drive? \n \nA Yes, sir. \n \nQ You  did.  Okay.  And  I  know  from  the  background  of  the \ncase,  Pick-It  Construction  employees  did  not  directly  roof  that \nhouse; is that correct? \n \nA That is correct. \n \n\nBonilla – H005594 \n \n-15- \nQ Okay.  And  my  understanding  is  Pick-It  subcontracted  the \nroof  at  1915  Cherry  Hills  Drive  in  Fayetteville  out  to  Juan  Carlos \nCalderon? \n \nA Yes, sir. \n \nQ Okay.  And  is  there  a  company  name  or  trade  name  or  do \nyou simply hire Juan Carlos Calderon? \n \nA We hire Juan Carlos Calderon. \n \nQ Okay. May I assume that is not the first time you had hired \nJuan Carlos Calderon? \n \nA That is correct. \n \nQ Okay.  to  your  knowledge  and  understanding,  does  Juan \nCarlos  Calderon  roof  houses  with  his  own  employees  or  does  he \nsubcontract that out to other crews? \n \nA I do not know. \n \nQ You have no knowledge of that? \n \nA No, sir. \n \nQ Have you had any discussions with him about who does it? \n \nA No, sir. \n \nQ Okay. In your experience, is that an uncommon practice for \nthe roofer you hire to have people under them that roof houses? \n \nA I  do  not  know.  We  make  sure  who  we  pay  has  insurance \nand a W-9. \n \nQ Okay. So you made sure that Mr. Calderon had workers’ \ncomp insurance and a W-9? \n \nA Yes, sir. \n \nQ Who he hires, if anybody, to do that is unknown to you? \n \nA That is correct. \n \n\nBonilla – H005594 \n \n-16- \n*** \nQ Okay.  But  you  did  have  the  contract  at  1915  Cherry  Hills \nDrive? \n \nA Yes, sir. \n \nQ And you did subcontract that out to Juan Carlos Calderon? \n \nA Subcontracted and paid. \n \nQ And paid. And can I assume you all paid him by check? \n \nA One hundred percent, yes. \n \nQ Okay.  So  that  job  is  bid,  the  entire  amount  is  paid  to  Juan \nCarlos Calderon? \n \nA Yes, sir. \n \nQ And it is up to Juan Carlos Calderon to pay his employees \nor employees of others? \n \nA That is correct. \n \nQ Okay.  And  to  your  knowledge,  on  this  job  on  7/14/20  at \n1915 Cherry Hills Drive, did Mr. Calderon have workers’ comp \ncoverage? \n \nA Yes, sir. \n \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. The claimant in this matter is able to \nprove the  existence of the right shoulder  and lumbar spine injuries he alleges through objective \n\nBonilla – H005594 \n \n-17- \nmedical  findings.  Medical  records  from  Baptist  Health  on  July  14,  2020,  the  day  the  claimant \nalleges to have fallen from the roof, show a “closed nondisplaced fracture of the body of the right \nscapula”, “muscle contusions”, and “L3, L4 and L5 transverse process fractures.”  \nThe claimant gave what I  find to be credible testimony in this matter. The credibility of \nwitnesses and the weight to be given to their testimony are matters solely within the province of \nthe Commission.  Ringier America v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993). It was the \nclaimant’s testimony that on July 14, 2020, he was working on the roof at the 1915 Cherry Hills \nDrive  home  when  he  fell  back  on  the  gutter  and  fell  off  the  house,  hitting  concrete.  The \nclaimant’s testimony is consistent with the medical records from his July 14, 2020, emergency \ndepartment visit where he described a fall from the roof of a house onto concrete. The claimant’s \ninjuries  described  in  the  medical  records  also  appear  to  be  consistent  with  his  testimony.  The \nclaimant’s testimony that he was hired to work on the roof that day and did so until he fell off is \nalso credible. The claimant is able to prove by a preponderance of the evidence that he sustained \ncompensable injuries to his right shoulder and lumbar spine on July 14, 2020.  \n The Commission has been asked to determine whether the claimant was an employee of \nRespondent   No.   1   or   Respondent   No.   2   on   July   14,   2020.   I   will   first   consider the \nemployee/employer  relationship  between  the  claimant  and  Respondent  No.  2.  Mr.  Ogden,  the \npresident/owner of Respondent No. 2, testified that Respondent No. 2 did have a contract to roof \nthe 1915 Cherry Hills Drive home on July 14, 2020. However, Respondent No. 2 subcontracted \nthe  roofing  job  to  Respondent  No.  1,  Juan  Carlos  Calderon.  Mr.  Ogden  further  testified  that  a \nroof  was  placed  on  that  house  and  that  Respondent  No.  1  was  paid  via  check  for  that  job.  Mr. \nOgden testified that the claimant was not an employee of Respondent No. 2. The claimant’s own \ntestimony agrees that he was not an employee of Respondent No. 2. I find that the claimant was \n\nBonilla – H005594 \n \n-18- \nnot  an  employee  of  Respondent  No.  2  but  was  engaged  in  employment while  working on  the \nroof  of  the  1915  Cherry  Hills  Drive  home  which  Respondent  No.  2  subcontracted  and  paid \nRespondent No. 1 to complete. \n As to the issue of whether the claimant is employee of Respondent No. 1, I find that the \nissue  is  moot  as  it  relates  to  liability  for  any  benefits  awarded  to  due  to  the  claimant  for  his \ncompensable  right  shoulder  and  lumbar  spine  injuries  under  the  Arkansas  Workers’ \nCompensation  Act.  The  claimant  testified  that  he  was  hired  directly  by  Mauricio  Solis  to  work \non the roof at the 1915 Cherry Hills Drive home. He also testified that he was paid by Mr. Solis \n$160.00 per  day  for  the  two  days  that  he  had  worked, in  cash.  Following  is  a  portion  of  the \nclaimant’s direct examination testimony about his hiring and payment: \nQ Okay. And how did you get that job? \n \nA Mauricio hired me because Chepe contracted him to. \n \nQ Who is Chepe? \n \nA Chepe Calderon. \n \nQ Is that Juan Calderon? \n \nA Uh-huh. \n \nQ Is that a “yes”? \n \nA Yes. His name is Juan Jose Calderon. \n \nQ What was your payment arrangement for roofing the house \nat 1915 Cherry Hills Drive in Fayetteville? \n \nA Daily salary was 160. \n \nQ Okay. And were you hired directly by Mauricio Solis? \n \nA Correct. \n \n\nBonilla – H005594 \n \n-19- \nQ Okay. Were you paid for that job? \n \nA Yes. They paid me the two days I had done. \n \nQ Okay. And by whom were you paid? \n \nA Solis did it because Calderon would pay Solis. \n \nQ And Solis would pay everybody? \n \nA Of course. Yes. \n \nQ Okay. Were you paid in check or cash? \n \nA Me? Cash. \n \nQ Did Solis pay you himself? \n \nA Yes. Him personally. \n \n Mr. Solis has not communicated nor participated with the Commission in this matter. Mr. \nJuan Carlos Calderon, while insured and represented by counsel, did not appear at the hearing in \nthis matter. Given the limited information available, a determination of whether the claimant was \nan employee of Respondent No. 1 or an employee of a subcontractor of Respondent No. 1 is not \npossible.  However,  as  previously  stated,  I  believe  that  the  issue  is  moot  as  it  relates  to  liability \nfor the claimant’s compensable injuries. In that A.C.A. §11-9-402(a) states: \nWhere  a  subcontractor  fails  to  secure  compensation  required  by \nthis  chapter,  the  prime  contractor  shall  be  liable  for  compensation \nto   the   employees   of   the   subcontractor   unless   there   is   an \nintermediate  subcontractor  who  has  workers’  compensation \ncoverage. \n \n In  the  present  case  we  have  a  prime  contractor,  Respondent  No.  2.  We also have  a \nsubcontractor,  Respondent  No.  1.  If  the  claimant  was  an  employee  of  Respondent  No.  1, \nRespondent  No.  1  would  be  liable  for  payment  of  benefits  to  the  claimant  under  the  Arkansas \nWorkers’ Compensation Act. If, however, the claimant was not an employee of Respondent No. \n\nBonilla – H005594 \n \n-20- \n1  but,  instead, an  employee  of  Mr.  Solis,  who  was  subcontracted  by  Respondent  No.  1  to \ncomplete  the  roof,  then  Respondent  No.  1  would  still  have  liability  for  any  benefits of  the \nclaimant under the Arkansas Workers’ Compensation Act, in that the parties have stipulated that \nMr.  Solis  did  not  have  workers’  compensation  insurance  coverage  in  Arkansas.  Therefore, \nRespondent No. 1 would be an intermediate subcontractor under A.C.A. §11-9-402(a) and would \nstill have liability for any benefits due to the claimant under the Workers’ Compensation Act in \nthat Respondent No. 1 was insured at that time. \n The issue of the claimant’s employment with either Respondent No. 1 or Mr. Solis is \nrelevant   under   A.C.A. §11-9-402(b)(1).   However,   that   issue   is   not   currently   before   the \nCommission.  It  does  not  have  an  affect  on  benefits  due  to  the  claimant,  instead  it  affects  the \nrights between Respondent No. 1 and Mr. Solis. \n Employers  must  promptly  provide  medical  services  which  are  reasonably  necessary  in \nconnection  with  the  compensable  injuries,  Ark.  Code  Ann.  §11-9-508(a).    However,  injured \nemployees have the burden of proving by a preponderance of the evidence that medical treatment \nis  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores,  Inc.,  86  Ark.  App.  230,  184  S.W.3d  31 \n(2004).    What  constitutes  reasonable  and  necessary  medical  treatment  is  a  fact  question  for  the \nCommission,  and  the  resolution  of  this  issue  depends  upon  the  sufficiency  of  the  evidence.  \nGansky  v.  Hi-Tech  Engineering,  325  Ark.  163,  924  S.W.2d  790  (1996). After  a  review  of  the \nmedical records in this matter, I find that the records submitted into evidence are reasonable and \nnecessary medical treatment for the claimant’s compensable injuries and that the claimant is \nentitled to payment for that reasonable and necessary medical treatment including out-of-pocket \nexpenses. \n The claimant has asked the Commission to determine whether he is entitled to temporary \n\nBonilla – H005594 \n \n-21- \ntotal disability benefits from July 15, 2020, to a date yet to be determined.  In  order  to  be  entitled \nto temporary total disability benefits, the claimant has the burden of proving by a preponderance \nof the evidence that he remains within his healing period and that he suffers a total incapacity to \nearn  wages  as  a  result  of  his  compensable  injury. Arkansas  State  Highway  &  Transportation \nDepartment  v.  Breshears, 272  Ark.  244,  613  S.W.  2d  392  (1981). The  claimant  sustained \nsignificant  injuries  to  his  lumbar  spine  and  right  shoulder  in  his  July  14,  2020,  fall.  The \nclaimant’s  medical  treatment  and  records  are  somewhat  limited  in  this  matter.  It  was  the \nclaimant’s testimony that he was unable to afford medical treatment. A medical record dated \nSeptember 1, 2020, and found at Claimant’s Exhibit 1, pages 26-29, states in part: \nAssessment and Plan: \n1. Closed  traumatic  minimally  displaced  fracture  of  body  of  right \nscapula with routine healing (Primary) \n Assessment & Plan: \n My  personal  reading  of  X-rays  of  right  scapula  show \nhealing fracture with no further displacement. \n PROM exercises. \n Follow up 4 weeks. \n Continue off work. \n \nThis is the only reference I find in the medical records regarding the claimant’s work status. That \nrecord references “x-rays of the right scapula showing a healing fracture” and continues the \nclaimant off work. Given that the claimant’s condition was earlier in the healing process prior to \nthis September 1, 2020, medical visit, it is reasonable that the claimant was in his healing period \nsince  his  July  14,  2020,  fall  and  continued  as  of  September  1,  2020,  to  be  incapacitated  from \nwork. On October 1, 2020, the claimant was again seen by Dr. Evans, at which time the record \nstates, “x-rays of right scapula show healed fracture.” The claimant was directed to follow up prn \nat that time. It is on October 1, 2020, that I find the claimant’s healing period to have ended. The \nclaimant is able to prove by a preponderance of the evidence that he is entitled to temporary total \n\nBonilla – H005594 \n \n-22- \ndisability benefits from July 15, 2020, to October 1, 2020. \n The Commission has been asked to determine the claimant’s compensation rates. A.C.A. \n§11-9-518  controls  the  computation  of  the  average  weekly  wage.  In  this  particular  case  I  find \nthat  exceptional  circumstances exist, and that the claimant’s average weekly wage should be \ncomputed under A.C.A. §11-9-518(c), which states: \nIf, because of exceptional circumstances, the average weekly wage \ncannot  be  fairly  and  justly  determined  by  the  above  formulas,  the \ncommission may determine the average weekly wage by a method \nthat is just and fair to all parties concerned. \n \nThe  claimant  testified  on  direct  examination  that  he  had just  begun  work  and  was  paid  for  two \ndays  at  the  rate  of  $160.00 per  day. Neither Mauricio  Solis nor Respondent  No.  1,  Juan  Carlos \nCalderon appeared at the hearing, nor any of the wage records available for consideration by the \nCommission. The claimant was questioned by Respondent No. 1’s attorney about his pay as \nfollows: \nQ You testified that your rate of pay was 160 per day; is that \ncorrect? \n \nA No. 170. \n \nQ Okay.  Regardless,  was  that  ever  written  down  on  paper  of \nany kind? \n \nA No,  because  they  pay  cash  and  didn’t  give  me  any \napplication. \n \nQ Okay. Isn’t it true that you have no documentation of what \nyou were paid or when? \n \nA Because  they  paid  me  cash,  just  the  documents  from  the \nhospital. \n \nQ So that would be a “no”? \n \nA Paid cash. \n\nBonilla – H005594 \n \n-23- \n \nQ Okay. Again, I am asking if you have any documents and is \nthat a “no”? \n \nA No, because they paid cash. \n \nQ Okay. Do you maintain a bank account? \n \nA No. \n \nQ What did you do with this cash when you received it? \n \nA Well what would I do? Help my family. Pay my rent. \n \nQ You would keep it in cash and you pay it out still in cash; is \nthat right? \n \nA Yes.  Of  course.  I  paid  my  rent  and  they  would  give  me  a \nreceipt. And my light bill, my water. \n \nQ Have  you  presented  any  of  those  receipts  today?  Are  they \nin evidence? \n \nA No, because I wasn’t asked for them. \n \nQ Okay.  Do  you  understand  it  is  your  burden  of  proof  as  to \nyour compensation rate? \n \nA I have got receipts that I pay my rent. \n \nQ Okay.  Even  if  you  have  receipts  that  you  paid  your  rent, \nthat would not prove the rate of pay you negotiated with Mr. Solis; \nwould it? \n \nA That doesn’t have anything to do with it. One pays their \nbills. One pays their expenses. \n \nThe claimant was also questioned by Respondent No. 1’s attorney about the duration of his \nemployment as follows: \nQ Okay. Did  you  have  a  discussion  with  Mr.  Solis  as  to  the \nduration of your employment? \n \n\nBonilla – H005594 \n \n-24- \nA My understanding was that the work was going to be steady \nall  through  the  summer  and  I  started  work  at  the  beginning  of \nsummer. \n \nQ Okay.  This  is  your  first  or  second  day  on  this  particular \nhouse, though; wasn’t it? \n \nA Second day. \n \nQ Okay. Were the houses previous to that also done with Mr. \nSolis? \n \nA That house was done on behalf of Maricio. \n \nQ Okay.  I  know  that  house,  but  what  about  the  other  houses \nyou said that you did at the beginning of summer? \n \nA Oh, the other houses Mauricio kept doing because I was in \nbed. \n \nQ Okay. This injury occurred in July; did it not? \n \nA Of course. Yes. \n \nQ And you are counting that as the beginning of summer? \n \nA Well, July is summer. \n \nQ Okay.  My  question  is  the  duration  of  your  employment  as \nyou  negotiated  with  Mr.  Solis,  which  you  have  said  was  for  the \nsummer; is that right? \n \nA Yes. It was going to last the rest of the summer. \n \nQ Okay.  As  far  as  the  summer  is  concerned,  would  that \ninclude  July,  August?  Is  that  it,  July  and  August,  or  would  you \ninclude September? \n \nA They always do houses, too, in the winter – \n \n THE INTERPRETER: I’m sorry the interpreter misspoke. \n \n THE WITNESS: In the cold \n \n\nBonilla – H005594 \n \n-25- \nQ [BY MR. RYBURN]: Okay. And that is not my question as \nto  whether  houses  are  roofed  in  the  cold.  My  question  is  your \nspecific agreement with Mr. Solis as to the duration of the alleged \nemployment agreement, how long were you to work for Mr. Solis? \n \nA Oh, we didn’t have that kind of agreement. It was always \njust as long as I was needed. \n \nQ So as far as you know, it might have been just one house? \n \nA It wasn’t a house. \n \nQ How do you know that? \n \nA Because  I  knew  that  Calderon  had  contracted  him  because \nhe had a lot of work. \n \nQ And you never talked to Mr. Calderon, is that correct? \n \nA No. \n \nQ In  fact,  on  July  14,  2020,  you  had  no  idea  whether  Mr. \nCalderon was involved in this specific job that we are talking about \ntoday; is that right? \n \nA He  was  involved  because  he  handed  off  the  house  to \nMauricio. \n \n On  cross  examination  Respondent  No.  1’s  attorney  questioned  Mr.  Ogden,  the \npresident/owner of Respondent No. 2, about the duration of his agreement for Respondent No. 1 \nto do roofing work as a subcontractor for Respondent No. 2 as follows: \nQ Was  the  contract  reflected  in  your  exhibit  for  one  house \nwith Mr. Calderon? \n \nA No, sir. Basically, we get those subcontract agreements and \nrenew  them  every  year  and  update  any  annual  pricing  that  we  do \nwith  them.  Then  they  have  to  give  us  a  new  W-9  and  current \ninsurance  as  it  expires  because  you  cannot  work  with  us  without \ninsurance and a W-9. \n \nQ Per that agreement, was it for a specific house? \n \n\nBonilla – H005594 \n \n-26- \nA It’s for all of them. Any job they do with us for the duration \nof their relationship with us. \n \nQ They would have a separate contract? \n \nA No, sir. That is not how this world works. We would have a \ncontract with the homeowner. \n \nQ I  am  referring  to  Page  21  of  your  documentary  exhibit. \nPick-It Construction, Inc., General Conditions. \n \n THE COURT: I will provide it. \n \nQ [BY MR. RYBURN]: On that page there is a project name, \nproject number, project address, indicating that this is for a specific \naddress. \n \nA There is none, so, no, it is not specific for an address. \n \nQ Because it’s blank? \n \nA Correct. It’s a blanket agreement for the duration of the \nrelationship. \n \nQ Okay. Sitting here do you know the duration? \n \nA For this? \n \nQ For this contract? \n \nA Yes. As long as he is willing to work for us. \n \n The  only  two  witnesses  to  testify  in  this  matter,  the  claimant  and  Mr.  Ogden,  clearly \nbelieved the work available to last for much longer than just the 1915 Cherry Hills Drive job. It \nis also notable that the claimant has since returned to working as a roofer after he recovered from \nhis injuries. Given the direction of A.C.A. §11-9-518(c),  I find the claimant to have an  average \nweekly wage of $800.00. That number is based off of a five-day work week at $160.00 per day. \nAs such, the claimant’s temporary total disability rate is $533.00 and permanent partial disability \nrate is $400.00. \n\nBonilla – H005594 \n \n-27- \n The Commission has been asked to consider Respondent No. 1 and Respondent No.2’s \nlack of notice defense. Respondent No. 2’s notice  defense is  moot  as  the  claimant  was  not  an \nemployee of Respondent No. 2 nor subject to liability for the claimant’s compensable injuries \nunder A.C.A. §11-9-402. Respondent No. 1’s notice defense fails in that if the claimant was an \nemployee  of  Respondent  No.  1,  notice  was  given  to  Mr.  Solis shortly  after  the  fall.  If  the \nclaimant  is  not  an  employee  of  Respondent  No.  1  but,  instead,  an  employee  of  Mr.  Solis,  who \nwas an uninsured contractor of Respondent No. 1, liability will still exist regardless of notice of \nthe injury to Respondent No. 1, as it was given to Mr. Solis. \n Respondent No. 2 has asked the Commission to consider its statute of limitations defense. \nThat defense is moot as Respondent No. 2 has no liability in this matter.  \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nNovember  13,  2023,  and  contained  in  a  Pre-hearing  Order  filed on November  14,  2023,  are \nhereby accepted as fact. \n 2. The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  was  an \nemployee  of  Respondent  No.  2  on  July  14,  2020.  The  issue  of  whether  the  claimant  was \nemployee of Respondent No. 1 on July 14, 2020, is moot. \n 3.  The  claimant  is  able  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained \ncompensable injuries to his lumbar spine and right shoulder on or about July 14, 2020. \n\nBonilla – H005594 \n \n-28- \n 4. The claimant is able to prove by a preponderance of the evidence that he is entitled to \nmedical treatment for his compensable lumbar spine and right shoulder injuries. \n 5. The claimant is able to prove by a preponderance of the evidence that he is entitled to \ntemporary total disability benefits from July 14, 2020, to October 1, 2020. \n 6. The claimant is able to prove by a preponderance of the evidence under A.C.A. §11-9-\n518(c) that he is entitled to an average weekly wage of $800.00 per week, which computes to a \ntemporary total disability rate of $533.00 and a permanent partial disability rate of $400.00. \n 7.  The  claimant  is  able  to  prove  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney fee in this matter. \n 8. Respondent No. 1 has failed to prove their lack of notice defense. Respondent No. 2’s \nlack of notice defense is moot. \n 9. Respondent No. 2’s statute of limitations defense is moot. \n 10.  Regardless  of  whether  the  claimant  is  the  employee  of  Respondent  No.  1  or  an \nintermediate  subcontractor  under  A.C.A. §11-9-402(a),  Respondent  No.  1  is  still  liable  for \nbenefits  due  to  the  claimant  under  the  Arkansas  Workers’  Compensation  Act  for  his \ncompensable injuries to his right shoulder and lumbar spine he sustained on July 14, 2020, in the \nfall from the roof of the home located at 1915 Cherry Hills Drive, Fayetteville, Arkansas. \n ORDER \nRespondent No. 1 shall provide the claimant reasonable and necessary medical treatment \nfor  his  compensable  lumbar  spine  and  right  shoulder  injuries.  Respondent  No.  1  shall  pay  the \nclaimant temporary total disability benefits from July 15, 2020, to October 1, 2020. Respondent \nNo. 1 shall pay the claimant for any out-of-pocket medical expenses. \n Respondent No. 1 shall pay to the claimant’s attorney the maximum statutory attorney’s \n\nBonilla – H005594 \n \n-29- \nfee  on  the  benefits  awarded  herein,  with  one-half  of said  attorney’s  fee  to  be  paid  by  the \nrespondent in addition to such benefits and one-half of said attorney’s fee to be withheld by the \nrespondent from such benefits pursuant to Ark. Code Ann. §11-9-715. \n All sums herein accrued are payable in a lump sum and without discount and shall earn \ninterest at the legal rate until paid. \n Respondent No. 2 is dismissed from this matter. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":48028,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H005594 FRANCISCO BONILLA, Employee CLAIMANT JUAN CARLOS CALDERON, Employer RESPONDENT NO. 1 LIBERTY MUTUAL GROUP, Insurance Carrier/TPA RESPONDENT NO. 1 PICK-IT CONSTRUCTION, Employer RESPONDENT NO. 2 EMPLOYERS MUTUAL CASUALTY, Insurance Carrier/TPA RESPONDE...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:5","denied:1"],"injuryKeywords":["lumbar","shoulder","back","cervical","fracture","strain"],"fetchedAt":"2026-05-19T22:53:55.665Z"},{"id":"alj-H204703-2024-05-07","awccNumber":"H204703","decisionDate":"2024-05-07","decisionYear":2024,"opinionType":"alj","claimantName":"Clifton Forbes","employerName":null,"title":"FORBES VS. TRINITY RAIL MAINTENANCE SVCSAWCC# H204703May 7, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Forbes_Clifton_H204703_20240507.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Forbes_Clifton_H204703_20240507.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204703 \n \nCLIFTON FORBES, \nEMPLOYEE                                                                                                              CLAIMANT \n \nTRINITY RAIL MAINTENANCE SVCS, \nEMPLOYER                                                                                                         RESPONDENT  \n \nACE AMERICAN INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nESIS, INC., \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED MAY 7, 2024 \n \nHearing conducted on Friday, April 12,  2024,  before  the  Arkansas  Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant, Mr. Clifton Forbes, pro se, of Jonesboro, Arkansas, did not appear in person at the \nhearing.  \n \nThe Respondents  were represented by  the Honorable  Jason  Ryburn;  however,  the  Motion  to \nDismiss was argued by the Honorable Michael Ryburn, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on April 12, 2024, in Jonesboro, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nAdmitted into evidence was Commission Exhibit 1, pleadings, correspondence, and Certified U.S. \nMail return receipts, consisting of nine pages. I have also blue-backed Forms AR-2 and AR-C, as \ndiscussed infra. \nThe record reflects on June 30, 2022, a Form AR-C was filed in this case, reflecting that \nClaimant purportedly sustained injuries to his cervical spine, thoracic spine, and lumbar spine on \n\nFORBES, AWCC No. H204703 \n \n2 \n \nApril 21, 2022. The record does not state how the alleged injury occurred when reviewing Forms \nAR-2 and AR-C; no Form AR-1 was filed in this claim. The Form AR-C was filed by Claimant’s \nthen-lawyer,  Neal  Hart,  who entered  his  appearance on  June 30,  2022.  The  Respondents  were \nrepresented  by  Attorney  Jason  Ryburn. The  Respondents  initially  accepted  the  claim  and \nconfirmed that acceptance in a letter to the Commission dated June 30, 2022. The Claimant filed \nfor a Change of Physician with the Commission on July 5, 2022. The Claimant was being treated \nby  Dr.  John  Brophy  and  requested  to  be  treated  by  Dr.  Dominic  Maggio.  The  Respondents,  in \nanother letter to the Commission dated July 8, 2022, changed their position on compensability and \nnow  denies  the  claim in  its  entirety. Respondents  filed  a  Form  AR-2 on  August  2,  2022, \nrepresenting that the claim had no objective findings. As a result, Claimant was informed by the \nCommission, in a letter dated August 5, 2022, that the request for a change of physician could not \nproceed since the Respondents were controverting the claim in its entirety.   \nAttorney Hart  filed  a  Motion  to  Withdraw  as  Counsel  from  the  claim  on  September  25, \n2023. The Commission granted the motion on October 16, 2023. Respondents then filed a Motion \nto  Dismiss  on  December  6,  2023. Claimant  was  sent  notice of  the Motion  to Dismiss  from  the \nCommission on December 8, 2023, to Claimant’s last known address. He did not respond to the \nmotion, so a hearing was set. In accordance with applicable Arkansas law, the Claimant was mailed \ndue and proper legal notice of both the Respondents’ Motion to Dismiss and the hearing notice at \nhis current  address  of  record  via  the  United  States  Postal  Service  (USPS),  First  Class  Certified \nMail, Return Receipt Requested, and regular First-Class Mail. The certified notice was signed by \nthe Claimant on March  6, 2024, at the address of record and the  regular  First-Class mail notice \nwas not returned. The hearing took place on April 12, 2024. As previously stated, the Claimant \ndid not show up to the hearing. \n\nFORBES, AWCC No. H204703 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the April 12, 2024, \nhearing. \n \n3. The Claimant has failed to prosecute this claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted.     \n \nDISCUSSION \n Consistent  with both Ark.  Code  Ann. §  11-9-702(a)(4) and  AWCC  Rule 099.13, the \nCommission scheduled and conducted a hearing, with proper notice, on the Respondents’ Motion \nto Dismiss. Commission Exhibit 1 provides multiple signed Certified U.S. Mail Return Receipts. \nOne receipt dated January 27, 2024, signed by Janelle Forbes, Claimant’s wife, establishes notice \nof the Motion to Dismiss. The other Certified U.S. Mail Return Receipt was dated March 6, 2024, \nand was signed by the Claimant himself and establishes notice of the Motion to Dismiss hearing \ndate, at which the Claimant did not appear.  \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction pending before it due to a want of prosecution. The Claimant has not filed a request for a \nhearing since the filing of his June 30, 2022, Form AR-C. Even when he received Respondents’ \nMotion to Dismiss on January 27, 2024, he failed to take that opportunity to object and request a \nhearing. Therefore,  I  find  by  the  preponderance  of  the  evidence  that the  Claimant  has violated \nAWCC Rule  099.13 in  failing  to  prosecute  his  claim.  Thus, Respondents’ Motion  to  Dismiss \nshould be granted. \n\nFORBES, AWCC No. H204703 \n \n4 \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, and this claim is hereby dismissed without prejudice. \nIT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6480,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H204703 CLIFTON FORBES, EMPLOYEE CLAIMANT TRINITY RAIL MAINTENANCE SVCS, EMPLOYER RESPONDENT ACE AMERICAN INS. CO., CARRIER RESPONDENT ESIS, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MAY 7, 2024 Hearing conducted on Friday, April 12, 2024, befo...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:3"],"injuryKeywords":["cervical","thoracic","lumbar"],"fetchedAt":"2026-05-19T22:53:57.735Z"},{"id":"alj-H304348-2024-05-07","awccNumber":"H304348","decisionDate":"2024-05-07","decisionYear":2024,"opinionType":"alj","claimantName":"Mark King","employerName":"Recon Group, Inc","title":"KING VS. RECON GROUP, INC. AWCC# H304348 May 7, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/KING_MARK_H304348_20240507.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KING_MARK_H304348_20240507.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H304348 \n \nMARK KING, Employee CLAIMANT \n \nRECON GROUP, INC., Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n AMENDED OPINION FILED MAY 7, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by LAURI THOMAS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On February  6,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on October  30,  2023,  and  a  Pre-hearing \nOrder  was  filed  on October  31,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on June 27, \n2023. \n 3. The respondents have controverted the claim in its entirety. \n\nKing – H304348 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $391.00 for temporary total disability benefits and $293.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to his left knee on or about June 27, \n2023. \n 2. Whether Claimant is entitled to medical treatment for his compensable left knee injury. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  November  1, \n2023, to November 28, 2023.  \n 4. Whether Claimant’s attorney is entitled to an attorney’s fee. \n The claimant's contentions are as follows: \n“Claimant   sustained   a   compensable   injury   while   working   for \nRespondent on or about 6/27/23. At that time, claimant was in the \ncourse and scope of his employment with Respondent when a cart \nhit his shin, causing him to fall onto another cart, twisting his knee \nin the process. \n \nOn  6/30/23  Mr.  King  reported  to  Northwest  Medical  Center  with \ncomplaints of left knee pain that had not subsided since he twisted \nhis knee at work. After performing test and imaging, Dr. Burton at \nNorthwest   Medical   Center   suspected   an   internal   left   lateral \nmeniscal   injury.   She   recommended   that   he   follow   up   with \northopedics. \n \nOn 7/10/23 Mr. King reported to Dr. Maline at the Agility Center \nwith  complaints  of  left  knee  pain.  The  doctor  determined  his \nsymptoms  were  consistent  with  a  meniscal  tear  and  requested  an \nMRI of Claimant’s left knee. \n \nThe Respondents have denied Claimant’s right to further medical \ntreatment. Mr. King was unable to delay treatment any further. On \n9/19/23  Mr.  King  had  an  MRI  of  his  left  knee  which  showed \nlongitudinal  horizontal  type  tear  of  the  medial  meniscus.  After \n\nKing – H304348 \n \n-3- \nreviewing the MRI, Dr. Maline recommended surgery to repair the \ntear.” \n \n The respondents’ contentions are as follows: \n“Respondents   contend   that   the   claimant   did   not   sustain   a \ncompensable    injury    within    the    course    and    scope    of    his \nemployment.” \n \n The  claimant  in  this  matter  is  a 57-year-old  male who  alleges  to  have  sustained  a \ncompensable  injury  to  his  left  knee  on  June  27,  2023.  The  claimant’s  job  duties  for  the \nrespondent included taking products off a line, entering them into a computer system, and putting \nthose  products  away.  On  direct  examination  the  claimant  described  the  incident  in  which  he \nalleges  to  have  suffered  a  compensable  left  knee  injury.  That  incident  occurred  about  10  to  15 \nminutes  prior  to  the  end  of  the  workday.  A  video  has  been  introduced  into  evidence  on  a  flash \ndrive marked as Claimant’s Exhibit 3. The claimant’s testimony regarding that incident follows: \nQ And tell us about that day. \n \nA Okay. Well, the day was almost over and at the  end of the \nday,  we  always  get  a  push  of  product  on  the  line.  I  was  storing \nstuff into the computer. I emptied a bin of product and then I went \nto  get  another  bin  of  product  off  the  line.  Someone  had  placed  a \nflat cart, which stands about this tall (indicating), behind me and I \ndidn’t see it. I turned around, walked right into it hitting my right \nshin  on  it.  Fell  forward.  Used  my  left  leg  to  brace  myself,  almost \nfalling. I did everything I could not to fall. \n \nQ Was it painful? \n \nA Very painful. \n \nQ Did you report it to anyone? \n \nA I reported it to my supervisor, Jamie Deans, immediately. \n \nQ And after you reported it to Ms. Deans, what happened? \n \n\nKing – H304348 \n \n-4- \nA They sat me down over at Jamie’s desk. Put some ice on it. \nSince it was the end of the day, they decided that they would wait \nuntil the next morning to do a report incident on it. \n \nQ Okay.  So  from  the  time  you  got  injured  until  you  clocked \nout, how long was that time frame? \n \nA Ten, maybe 15 minutes. \n \nQ Okay. So when you clocked out, what did you do after this? \n \nA I went straight home. \n \n The  claimant  was  also  asked  about  his  alleged  left  knee  injury  on  cross  examination  as \nfollows:  \nQ Okay. Now, you turned around from entering some product \ninto  the  computer  and  somebody  had  put  this  cart  behind  you;  is \nthat right? \n \nA Correct. \n \nQ Okay. I believe it was a blue cart? \n \nA Correct. \n \nQ Okay.  And  when  you  turned  around,  you  described  that  it \nwas about six inches off the floor? \n \nA Correct. \n \nQ And  you  struck  your  right  shin  on  that  cart  which  would \nhave been six inches above the floor? \n \nA Correct. \n \nQ So right above where your ankle is? \n \nA Right. \n \nQ Right in that shin area? \n \nA Correct. \n \n\nKing – H304348 \n \n-5- \nQ Okay. Now, you didn’t have any pain at that point in your \nleft knee; did you? \n \nA No.  The  pain  was  so  severe  in  my  shin,  that  is  all  I  could \nfeel. \n \nQ Okay. Now, you didn’t have any pain that you knew of in \nyour left leg at all at the time involving your knee; correct? \n \nA No, I had not. Not that I felt. \n \nQ Okay. Hadn’t noticed any issues with your left knee when \nyou left that day; did you? \n \nA No, I did not. \n \nQ Didn’t notice any swelling or bruising or issues with your \nleft knee at all when you left work that day; correct? \n \nA No. \n \nQ Is that correct? \n \nA That is correct. \n \n The  claimant  testified  that  he  immediately  reported  the  incident  to  a  supervisor,  Jamie \nDeans. The claimant was placed at Ms. Deans’ desk and was given ice to apply to his right shin. \nHolly Killbreth, who is the respondent’s safety coordinator, was also present when the claimant \nreceived  the  ice  for  his  right  shin.  Ms.  Killbreth  was  called  as  a  witness  by  the  respondent  and \ngave direct examination testimony about her time with the claimant as follows: \nQ Okay.  So  were  you  called  to  the  location  where  Mr.  King \nand Ms. Deans would have been? \n \nA Correct. \n \nQ What did you do and what did you observe at the time you \nwere called? \n \n\nKing – H304348 \n \n-6- \nA When  we  first  got  there,  we  initially  asked  what  happened \nand  he  had  told  us  that  he  had  hit  his  shin,  so  we  just  observed  a \nscrape towards the bottom part of his shin by his ankle. \n \nQ Okay. \n \nA And it was red. \n \nQ When you said his shin, are you talking about the left or the \nright? \n \nA The right. \n \nQ The  right.  Okay.  Did  he  describe  any  other  complaints  or \nproblems at that time? \n \nA No. \n \n The  claimant  testified  that  he  went  home  after  work  and  took  a  nap  on  his  couch.  The \nclaimant also works part-time as a dance instructor and was scheduled to give a dance class that \nnight. The claimant gave direct examination testimony about his activities after work on June 27, \n2023, as follows: \nQ Okay. So when you clocked out, what did you do after this? \n \nA I went straight home. \n \nQ And what did you do when you went home? \n \nA I laid on the couch and took a nap. \n \nQ You didn’t do any physical activities? \n \nA No, ma’am. I was hurting too much. \n \nQ At  what  point  in  time,  originally  you – what  was  your \noriginal injury when you hit the flat cart? \n \nA I  had  a  contusion  on  my  shin  about  right  here  (indicating) \nand it was – it was a little red. You could tell that it broke the skin, \nbut it didn’t bleed. \n \n\nKing – H304348 \n \n-7- \nQ Okay.  So  at  what  point  in  time  did  you  realize  that  your \nknee was hurting? \n \nA When  I  woke  up  a  couple  of  hours  later  on  the  couch,  my \nknee was sore and it had started to swell. \n \nQ Are you a dance instructor? \n \nA I am. \n \nQ And did you have a dance class that night? \n \nA I did. \n \nQ Did you teach it? \n \nA I tried. \n \nQ Is  there  a  reason  why  you  went  to  the  dance  class  if  your \nknee was swollen? \n \nA I get paid and I need the money. \n \nQ Okay. When you say you tried to teach the class, what did \nyou do? \n \nA I basically got up to try to demonstrate the first move and I \ncouldn’t do that, so I asked Ms. Elsey to help me with the class. \n \nQ And is Ms. Elzey Missy? \n \nA Yes, ma’am. \n \n The claimant called Missy Elzey as a witness in this matter. Ms. Elzey testified on direct \nexamination that she was in the claimant’s dance class on June 27, 2023. She further testified: \nQ Did you notice if there was anything off about that night’s \ndance class? \n \nA Yeah, right away.  I mean we were just sitting and chatting \nand then when he first got up, he kind of winced and did kind one \nof those, you know. And I was like, “Oh, what is wrong?” I first \nthought what is wrong because when you are trying to dance, you \nknow, and he said, “ I hurt myself at work,” so .... \n\nKing – H304348 \n \n-8- \n \nQ Did he describe how he hurt himself? \n \nA Yeah,  because  I  asked  like  what  happened,  so  he  just  said \nhe  tripped – I  always  get  this  all  mixed  up,  but  he  tripped  on \nsomething  and  hit  his  shin.  And  then  in  trying  to  correct  that,  he \nkind of twisted his knee  and the fallout from it, so it just sounded \nlike a mess, you know. \n \nQ So at that night’s class, he said he hurt his shin and hurt his \nknee? \n \nA Uh-huh. \n \nQ And it was your understanding that that happened at work? \n \nA Yes. \n \nQ Was it your understanding it happened that day? \n \nA Uh-huh. Yeah. \n \nQ Were you able to see his knees and his shin? \n \nA He was showing me because I was like, you know, what is \nhappening.  His  knee  looked  swollen.  And  like  the  other,  his  shin \nwhere he had hit it on something was kind of dented, red, bruised. \nThat was just starting since it was that day, so it didn’t look so \ngood, so .... \n \nQ Was he able to teach the class? \n \nA Huh-uh.  No.  He  got  up  and  that  is  when  I  first  noticed \nsomething  was  wrong  because  he  got  up  to  start  and  he  kind  of, \nyou know, was hobbling a little bit. So he just sort of said, “Well, \nif you can do this, I will kind of tell you what to do,” so I had to \nwing it. You know, I can wing it. \n \nQ So you took over the class? \n \nA Yeah. \n \n The  claimant  also  called  Sherri  Swedlund  as  a  witness.  Ms.  Swedlund  was  also  in  the \nclaimant’s dance class on June 27, 2023, and gave the following direct examination testimony: \n\nKing – H304348 \n \n-9- \nQ When  Mr.  King  arrived,  did  you  notice  anything  off  about \nMr. King? \n \nA He came in limping. \n \nQ Okay. Which leg was he limping on? \n \nA Left. \n \nQ Did you notice anything – did he have shorts on? \n \nA Yes. \n \nQ Were you able to see any injury? \n \nA He  had  a  knee  brace  on  his  left  knee  and  then  on  his  right \nleg, he had like a scratch, like some kind of mark or something on \nhis left leg – or right leg. \n \nQ And  when  you  say  knee  brace,  you  mean  like  an  ACE \nbandage? \n \nA No. It was more like a black thing, like a knee – yeah. \n \nQ Okay. Did he complain about being in any pain? \n \nA Yes. \n \nQ And where was he complaining the pain was coming from? \n \n MR.  WADE:  Your  Honor,  I  object.  This  is  hearsay.  It  is \nnot  offered  by  a  party-opponent.  It  is  offered  to  bolster  the \ntestimony of the Claimant and it doesn’t meet the exceptions to the \nhearsay rule. \n \n THE COURT: Overruled. \n \nQ [BY MS. THOMAS]: Did he complain of any pain? \n \nA Yes. \n \nQ And where did he indicate it was? \n \nA On his knee. \n \n\nKing – H304348 \n \n-10- \nQ Did he teach class that night? \n \nA No. \n \nQ Who taught class that night? \n \nA He stood there and he didn’t teach – like  dance.  He  just \nstood there and said, hey, do this and we just kind of followed his \nverbal instruction. \n \nQ And is that normally how he teaches class? \n \nA No. \n \nQ How does he normally teach class? \n \nA He dances with us. Like he will dance with us and show us \neverything. \n \nQ But he could not that night? \n \nA No. \n \n The claimant returned to work the next day and testified that he reported that morning to \nhis supervisor, Jamie Deans, that he had injured his left knee in the incident the day before. Later \nthat day the claimant was provided a Health and Safety Incident Report to sign. That report was \ncompleted  by  Ms.  Killbreth,  the  respondent’s  safety  coordinator.  That  report  is  found  at \nRespondents’ Exhibits 2. The report makes no mention of the claimant’s left knee, only his right \nshin.  However,  on  direct  examination  Ms.  Killbreth  testified  that  all  the  information  in  that \nreport was from the time of the incident on June 27, 2023, not information gained after June 27, \n2023.  Ms.  Killbreth  gave  the  report  to  the  claimant  to  review  and  sign  on  June  28,  2023.  The \nclaimant did sign the report but testified on cross examination as follows:  \nQ Now, were you given the opportunity to review that report \nbefore you signed it? \n \nA I looked it over. I didn’t really read it. I just looked it over. \n\nKing – H304348 \n \n-11- \n \nQ Okay.  so  you  had  the  chance  to  look  at  those  six  pages  of \ndocuments at the time you signed it; correct? \n \nA Yes. \n \nQ Okay. \n \nA I  did  assume  that  it  would  be  added  to,  the  knee  injury, \nbecause  I  did – when  I  got  to  work  that  morning,  I  immediately \ntold  my  supervisor,  Jamie  Deans,  that  my  knee  was  hurting  and  I \nbelieve I hurt it the day before at work. \n \nQ Did  you  make  any  suggestion  to  Ms.  Killbreth  or  indicate \nto  her  any  other  injury  than  the  shin,  which  is  identified  in  that \nreport? \n \nA I  do  believe  I  told  Ms.  Killbreth  that  my  knee  was  hurting \nas well. \n \nAs  made  clear  in  cross  examination,  the  claimant never asked  to  amend  the  report  he \nsigned  on  June  28,  2023.  On  cross  examination  Ms.  Killbreth  was  asked  about  speaking  to  the \nclaimant’s supervisor and protocol for the claimant to report his left knee as follows: \nQ When  he  filled  out – when  you  brought  that  report,  it  was \nalready filled out; correct? \n \nA Correct. We typed it up. \n \nQ Is Ms. Deans’ signature on that paper? \n \nA No, it is not. \n \nQ Had you spoken with Jamie Deans before you gave that to \nMr. King? \n \nA No, I did not. \n \nQ So  if  he  reported  it  to  his  supervisor,  you  would  not  have \nbeen aware of the knee. If you hadn’t spoken to her and she didn’t \nsign the paperwork, the only person he reported it to, you hadn’t \nspoken with? \n \n\nKing – H304348 \n \n-12- \nA I had not spoke to her, no. \n \nQ And  would  it  be  proper  procedure  or  protocol  for  him  to \ntell his supervisor? \n \nA Yes. \n \nQ Okay. He doesn’t work in HR; does he? \n \nA No. \n \nQ So  if  he  reported  it  to  his  supervisor,  would  it  be  safe  for \nhim   to   assume   that   you   would   take   care   of   the   appropriate \npaperwork? \n \nA I can’t answer what he is going to assume. \n \nQ Should you take care of the appropriate paperwork and not \nhim? \n \nA The HR lady would have taken care of it. She would come \nto me when the HR lady is made aware of it. \n \n The  claimant  was  asked  on  direct  examination  about  medical  treatment  for  his  left  knee \nas follows: \nQ At some point in time, did you decide you needed medical \ntreatment? \n \nA Yes. It was two and a half days afterwards, right after lunch \nmy knee was hurting really bad, so I when to my supervisor, Jamie \nDeans, and told her I need to go to the doctor. \n \nQ And what did Ms. Deans tell you? \n \nA She  sent  me  to  Jolene,  our  HR  representative,  and  Jolene \ngave  me  a  list  of  hospitals  or  clinics  that  I  could  go  to  to  be  seen \nabout my injury. \n \nQ Okay. And which one did you go to? \n \nA I went to Northwest Medical Center. \n \nQ And what test did they run? \n\nKing – H304348 \n \n-13- \n \nA They ran an X-ray. \n \nQ Did  they  give  you  any  follow-up  instructions  after  you \nwent home? \n \nA They  wanted  me  to  set  an  appointment  with  an  orthopedic \ndoctor, Dr. Maline. \n \nQ Did they give you any kind of instructions on how to treat \nyour knee? \n \n MR.  WADE:  Your  Honor,  I  am  going  to  object.  That  is \nhearsay. The medical records are in evidence. \n \n THE   COURT:   I   think   he   can   say   if   they   gave   him \ninstructions or not. \n \n MR. WADE: Well, if he describes the instructions. \n \n THE COURT:  Well, I think the question was did they give \nyou any instructions, so I will overrule your objection. \n \n MR. WADE: Thank you, Your Honor. \n \n THE WITNESS: Yes, they did. \n \nQ [BY MS. THOMAS]: Did you have any restrictions placed \non   you   after   you   went   to   Northwest   Medical   Center   about \nworking? \n \nA Yes.  I  had  a  knee  brace  and  I  had  to  be  careful  about  how \nmuch I lift and things that I could do. \n \nQ Okay.  You  said  that  Northwest  Medical  Center  referred \nyou to Dr. Maline? \n \nA Yes, ma’am. \n \n On  June  30,  2023,  the  claimant  was  seen  at  Northwest  Medical  Center  by  PA  Chelsea \nBurton. Following is a portion of that medical record: \nHistory of Present Illness \n\nKing – H304348 \n \n-14- \n56-year-old  male  reported  history  of  meniscal  repair  right  leg \napproximately  5  years  ago  presents  the  emergency  department  for \n3  days  of  progressive  pain  in  his  left  anterior/lateral  and  posterior \nknee  and  his  left  buttock.  Symptoms  began  3  days  ago  after  he \nturned around while at work and someone had put a flat rolling cart \nbehind him and he hit his right shin causing him to stumble and he \njumped on top of the flat cart. At that time he had not noticed that \nhe had injured his left buttock or knee but later than evening while \nteaching  dance  class  he  began  developing  some  pain  in  his  left \nknee. Since then he has difficulty bearing weight on the left lower \nextremity  due  to  pain  at  the  knee  and  buttock  and  unable  to  fully \nstraighten  or  flex  the  left  knee  secondary  to  swelling  posteriorly. \nPatient   reporting   this   feels   similar   to   his   meniscal   injury \npreviously.   He   denies   lower   extremity   numbness,   tingling, \ndiscoloration, back pain. \n \n*** \nDiagnosis \nAcute    pain    of    left    hip    (ICD10-CM    M25.552,    Discharge, \nEmergency medicine, Medical) \nAcute   pain   of   left   knee   (ICD10-CM   M25.562,   Discharge, \nEmergency medicine, Medical) \nAcute  left-sided  back  pain  with  sciatica  (ICD10-CM  M54.42. \nDischarge, Emergency medicine, Medical) \n \n On July 10, 2023, the claimant was seen by DO Michael Maline at Agility Orthopedics. I \nnote that the medical record provides information on its first page about the claimant’s insurance \nprovider and states, “Med Workers’ Comp – Travelers.” Additionally, that medical record states: \nHPI \n*** \nNotes: \nPatient presents to the office today for pain in the left knee. He was \nat work when he went to turn around to grab another item to scan \nin  when  he  tripped  over  a  low  cart  that  some  one  had  left  behind \nhim. Once he turned and tripped on the cart when his right shin, he \nwas going to fall forward he landed with his right foot on the cart, \nthe  cart  then  started  to  move  and  he  tried  to  jump  off  of  the  cart \nand twisted his knee in the process. \n*** \nAssessment/Plan \n\nKing – H304348 \n \n-15- \nHis  outside  images  were  reviewed  independently  and  show  joint \nspace  well  maintained,  no  fracture  noted.  His  exam  is  consistent \nwith meniscal tear. Recommend MRI to evaluate. \n \n On  September  19,  2023,  the  claimant  underwent  an  MRI  of  his  left  knee  at  MANA \nMedical  Associates.  Following  is  a  portion  of  that  diagnostic  report  authored  by  Dr.  Tommy \nHinton: \nImpression: \n1. There   is   a   longitudinal   horizontal-type   tear   involving   the \nposterior horn and body of the medial meniscus. \n2. There is suprapatellar knee joint effusion. \n3. There is infrapatellar subcutaneous edema. \n \n On  October  10,  2023,  the  claimant  is  again  seen  by  DO  Maline.  I  note  the  first  page  of \nthat  medical  report  also  indicates  an  insurance  provider  which  now  states, “Med Primary – \nCIGNA,” a  change  from  DO  Maline’s  July  10,  2023,  medical  record  which  stated,  “Med \nWorkers’ Comp – Travelers.” At that visit DO Maline recommends arthroscopic surgery for a \ntorn medial meniscus in the claimant’s left knee.  \n On November 1, 2023, the claimant underwent surgical intervention at the hands of DO \nMaline. Following is a portion of that operative report: \nPREOPERATIVE   DIAGNOSIS:   Posterior   horn   tear   medial \nmeniscus, left knee. \n \nPREOPERATIVE   DIAGNOSIS:   Posterior   horn   tear   medial \nmeniscus, left knee. \n \nPROCEDURE  PERFORMED:  Left  knee  arthroscopy  with  partial \nmedial meniscectomy.  \n \n The  claimant  has  the  burden  to  prove  his  alleged  left  knee  injury  of  June  27,  2023, \ncompensable. In  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \n\nKing – H304348 \n \n-16- \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n The   claimant   can   clearly   prove   the   existence   of   objective   medical   findings   of \nderangement in the form of a left knee meniscus tear from his left knee MRI dated September 19, \n2023, and DO Maline’s operative report of November 1, 2023. \nThe  credibility  of  witnesses  and  the  weight  to  be  given  to  their  testimony  are  matters \nsolely within the province of the Commission.  Ringier America v. Combs, 41 Ark. App. 47, 849 \nS.W.2d 1 (1993). There were four witnesses in this matter and I believe the credibility of all the \nwitnesses to be high. \n The  claimant’s  testimony  about  how  his  injury  occurred  is  supported  by  the  video \nevidence in this matter. I believe the claimant to be truthful about the timing of his left knee pain \nand swelling occurring after his nap. The claimant’s testimony regarding his left knee problems \nprior  to  his  dance  class  is  supported  by  the  testimony  of  Ms.  Swedlund  and  Ms.  Elzey. I  find \nboth  to be credible  witnesses  in  this  matter.  I  will  note  some  differences  in  their  testimony  that \nwas highlighted on cross examination. However, both testified that his complaints began before \nhe danced and the differences and deficits of their testimony seem reasonable particularly given \nthat this was a random dance class for each of these individuals on June 27, 2023, and they did \nnot testify until February 6, 2024. \n The report compiled by Ms. Killbreth does not mention the claimant’s left knee, only his \nright shin. However, she testified all of that information was gathered before the claimant alleges \n\nKing – H304348 \n \n-17- \nhis pain in the left knee to have begun. Ms. Killbreth did not talk to Ms. Deans, the claimant’s \nsupervisor, on June 28, 2023, when he testified that he first complained of left knee injury before \nshe had the claimant sign the report. The claimant’s testimony that he did report his left knee \ninjury to the respondent is supported in medical evidence. DO Maline’s July 10, 2023, visit with \nthe  claimant  was  clearly billed through  the  respondent’s  workers’  compensation  insurance \npolicy. I believe the claimant’s testimony true that the next day he reported his left knee injury \nand that he was offered or provided medical treatment sometime thereafter. The claimant is able \nto prove a causal connection between his objective medical findings regarding his left knee and \nthe  incident  that  occurred  on  June  27,  2023.  The  claimant  is  able  to  prove  that  he  sustained  a \ncompensable left knee injury on June 27, 2023, as he has alleged. \n The  claimant  has  asked  the  Commission  to  determine  if  he  is  entitled  to  medical \ntreatment  for  his  compensable  left  knee  injury. Employers  must  promptly  provide  medical \nservices which are reasonably necessary in connection with the compensable injuries, Ark. Code \nAnn. §11-9-508(a).  However, injured employees have the burden of proving by a preponderance \nof  the  evidence  that  medical  treatment  is  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores, \nInc.,  86  Ark.  App.  230,  184  S.W.3d  31  (2004).    What  constitutes  reasonable  and  necessary \nmedical treatment is a fact question for the Commission, and the resolution of this issue depends \nupon the sufficiency of the evidence.  Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d \n790 (1996).   \n After  a  review  of  the  medical  records  submitted  into  evidence  in  this  matter,  I  find  that \nthe  medical  treatment  shown  in  those  records  and  provided  to  the  claimant  is  reasonable and \nnecessary medical treatment for his compensable left knee injury and that the respondents shall \n\nKing – H304348 \n \n-18- \nbe responsible for the payment of that treatment, including the claimant’s out-of-pocket medical \ncosts.  \n The claimant has asked the Commission to determine if he is entitled to temporary total \ndisability  benefits  from  November  1,  2023,  to  November  28,  2023. A  claimant  who  suffers  a \nscheduled  injury  is  entitled  to  receive  temporary  total  or  temporary  partial  disability  benefits \nduring  their  healing  period  or  until  they  return  to  work,  regardless  of  whether  there  is  a  total \nincapacity to earn wages. Wheeler Construction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d \n822 (2001). \n A medical record found at Claimant’s Exhibit 1, page 34, indicates that the claimant may \nreturn to work on November 29, 2023. Given that the claimant’s surgical intervention was on \nNovember 1, 2023, and that he was removed from work until November 29, 2023, the claimant \nwas clearly within his healing period due to his compensable injury and taken off work as he was \ntemporarily totally disabled until he was able to return to work per DO Maline’s record on \nNovember  29,  2023.  The  claimant  is  able  to  prove  his  entitlement  to  temporary  total  disability \nbenefits from November 1, 2023, to November 28, 2023. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nOctober  30,  2023,  and  contained  in  a  Pre-hearing  Order  filed October  31,  2023,  are  hereby \naccepted as fact. \n\nKing – H304348 \n \n-19- \n 2. The  claimant  is  able  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained  a \ncompensable injury to his left knee on or about June 27, 2023. \n 3.  The  claimant  is  able  to  prove  by  a  preponderance  of  the  evidence  that is  entitled  to \nmedical  treatment  for  his  compensable  left  knee  injury,  including  any  out-of-pocket  expenses \nincurred by the claimant in this matter. \n 4. The claimant is able to prove by a preponderance of the evidence that he is entitled to \ntemporary total disability benefits from November 1, 2023, to November 28, 2023. \n 5.  The  claimant  is  able  to  prove  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney’s fee in this matter. \n ORDER \nThe  respondents  shall  be  responsible  for  the  costs  associated  with  reasonable and \nnecessary medical treatment regarding the claimant’s left knee injury which occurred on June 27, \n2023, including reimbursement to the claimant for out-of-pocket medical expenses. \nThe  respondents  shall  pay  the  claimant  temporary  disability  benefits  from  November  1, \n2023, to November 28, 2023. \nThe respondents shall pay to the claimant's attorney the maximum statutory attorney's fee \non the benefits awarded herein, with one half of said attorney's fee to be paid by the respondents \nin addition to such benefits and one half of said attorney's fee to be withheld by the respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \n\nKing – H304348 \n \n-20- \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":30682,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H304348 MARK KING, Employee CLAIMANT RECON GROUP, INC., Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT AMENDED OPINION FILED MAY 7, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claim...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["knee","ankle","back","hip","fracture"],"fetchedAt":"2026-05-19T22:53:59.809Z"},{"id":"alj-H301023-2024-05-06","awccNumber":"H301023","decisionDate":"2024-05-06","decisionYear":2024,"opinionType":"alj","claimantName":"Willie Battles","employerName":null,"title":"BATTLES VS. ARKANSAS DEPARTMENT OF CORRRECTIONAWCC# H301023 May 6, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BATTLES_WILLIE_H301023_20240506.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BATTLES_WILLIE_H301023_20240506.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’COMPENSATION COMMISSION \n \nCLAIM NO.: H301023 \n \n \nWILLIE MAE BATTLES, EMPLOYEE                                                               CLAIMANT \n \nARKANSAS DEPARTMENT OF CORRRECTION/ \n(BENTON WORK RELEASE CENTER), EMPLOYER                               RESPONDENT                             \n   \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA                                                                          RESPONDENT    \n                               \n \nOPINION FILED MAY 6, 2024    \n \nA hearing was held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski \nCounty, Arkansas. \n \nClaimant  represented by the  Honorable  William  C.  Frye, Attorney  at  Law, North Little  Rock, \nArkansas.       \n \nRespondents represented by Honorable Robert H. Montgomery, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \nA  hearing  was  held  in  the  above-styled  claim  on February  6, 2024, in Little  Rock, \nArkansas.  A prehearing telephone conference was held on this matter on November 15, 2023.  A \nprehearing order was entered into this matter on that same day.  This prehearing order set forth the \nstipulations offered by the parties, their contentions, and the issues to be litigated.  \nStipulations \nThe parties submitted the following stipulations, either per the prehearing order, or at the \nstart of the hearing.  I hereby accept the following stipulations as fact: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n\nBATTLES – H301023 \n2 \n \n2. The employee-employer-insurance carrier existed on January 29, 2023, when the \nClaimant sustained compensable injuries to her right hand, back, right shoulder and  \nright hip. \n3. That the Claimant’s average weekly wage on January 29 was $1,093.52, yielding \nweekly compensation    rates    of    $729.00    for    temporary    total disability \ncompensation, and $547.00 for permanent partial disability benefits.  \n4. The Respondents have controverted this claim for additional benefits in its entirety. \n \n5. All issues not litigated here are reserved under the Arkansas Workers’ Compensation   \n \nAct. \n \nIssues \n By agreement of the parties, the issues to be litigated at the hearing are as follows:  \n1. Whether the Claimant is entitled to additional medical treatment for her injuries. \n2. Whether the Claimant is entitled to temporary total disability (TTD) compensation \nfrom May 2023 until a date yet to be decided. \n3. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee.   \n \nContentions \n The parties’ respective contentions are outlined below: \nClaimant: \nThe Claimant fell and injured her hand, back, and shoulder.  She was treated by Dr. Thomas \nwho referred the Claimant to Dr. Bowen who took her off work.  Dr. Thomas then referred her to \nDr. Kevin Collins who does not take workers’ compensation patients and the Claimant is going \nback to her authorized treating medical doctor, Dr. Thomas, and will see him on October 25, 2023, \n\nBATTLES – H301023 \n3 \n \nfor her low back and referral for her torn rotator cuff.  The Claimant was terminated on August 13, \n2023, due to her restrictions and inability to do the essential functions of the job.      \nRespondents:  \n The Claimant alleges she injured her right hand, her right shoulder and right hip as a result \nof tripping and falling on or about January 29, 2023.  The Claimant received medical treatment for \nher hand  by  Jenna  Pardoe,  PA-C, at  OrthoArkansas.  The  Claimant  was  seen  for  her  hip  and \nshoulder injuries by Dr. Victor Vargas at OrthoArkansas.  The Claimant was found to be at MMI \nfor her hip and shoulder injuries by Dr. Vargas on April 3, 2023.  The Claimant was found to be \nat MMI for her hand injury on April 10, 2023, by Ms. Pardoe.  The Claimant was released to return \nto full duty work. \n The Claimant received all appropriate medical treatment for her reported injuries.  She was \npaid  TTD  benefits  beyond  her  MMI  date(s), and  the  Respondents  are  entitled  to  a  credit  in  the \namount of $1,353.82.  The Claimant has reached maximum medical improvement for her injuries \nand has received all appropriate benefits to which she might be entitled.    \n If  it  is  determined  that  the  Claimant  is  entitled  to  any  benefits,  the  Respondents  hereby \nrequest an offset for any benefits paid by the Claimant’s group health carrier, any short-term \ndisability  benefits  received  by  the  Claimant,  any  long-term  disability benefits  received  by  the \nClaimant, and any unemployment benefits received by the Claimant.  Respondents contend that it \nwould be entitled to credit pursuant to A.C.A. §11-9-411 against any additional indemnity benefits \nthat may be awarded to the Claimant.  \n The Respondents reserve the right to offer additional contentions, or to modify those stated \nherein, pending the completion of discovery.    \n \n\nBATTLES – H301023 \n4 \n \n             FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear  the  testimony  of  the  witnesses and  observe their demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.    The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n2.     I hereby accept the above-mentioned proposed stipulations as fact. \n \n   3.    The Claimant proved by a preponderance of credible evidence that all the authorized \nmedical  treatment  of  record  by  Dr.  Bowen  and  Rhodes  was  reasonably  necessary  for  her \ncompensable injuries of January 29, 2023.  I also find that the recommended surgery by Dr. Rhodes \nfor her right arm/hand injury is reasonably necessary in connection with the injury received by the \nClaimant in January 2023. \n4.    The Claimant proved her entitled to temporary total disability compensation from May \n2023  until  a  date  yet  to  be decided, such  as until the  pronouncement  of  maximum  medical \nimprovement by Dr. Rhodes following her surgery. \n           5.   The Claimant’s attorney is entitled to a controverted attorney’s fee on the indemnity \nbenefits awarded in this opinion. \n          6.    All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nAct.          \nSummary of Evidence \nMs. Willie Mae Battles (referred to herein as the “Claimant”), was the only witness to \ntestify on her behalf during the hearing.  \n\nBATTLES – H301023 \n5 \n \nMs. Nichole L. Metott was the sole witness to testify on behalf of the Respondents. \n            The record consists of the February 6, 2024 hearing transcript and the following exhibits: \nSpecifically, Commission’s Exhibit 1 comprises the Commission’s Prehearing Order filed on  \nNovember  15,  2023, along  with the  parties’  responsive  filings;  Claimant’s  Medical  Exhibit \nconsisting   of fifty-five (55) pages   was   marked as Claimant’s  Exhibit  1; Respondents’ \nDocumentary Exhibit consisting of twenty-three (23) pages was marked as Respondents’ Exhibit \n1;  Respondents’ Medical  Exhibit  includes thirty-two(32) pages and  it has  been  marked  as \nRespondents’ Exhibit 2; and the Oral Deposition of Willie Mae Battles taken on November 7, 2023 \nhas been marked as Respondents’ Exhibit 3.  It has been blue-backed and made a part of the record. \nProcedural Background \nWillie Mae Battles/the Claimant  \nAt the time of the hearing, Ms. Battles was 63 years old.  She has a 12\nth\n grade education.  \nHer  deposition  testimony  shows  that  she  previously  worked  at  a  nursing  home,  Holiday  Inn, \nKentucky Fried Chicken and then she went to work for Alexander Human Development Center.  \nThe  Claimant  worked  there  from  1985  until  2001,  and  then  she  quit  working  for  a  while.    Ms. \nBattles returned to work for the Arkansas Department of Correction/ADC in 2006 as a correctional \nofficer at the Wrightsville Unit.  The Claimant specifically testified that from 2006 until 2015, she \nworked  as  a  medical security officer at  the  ADC  hospital.  She  left  there  in  2015.    Ms.  Battles \nreturned to work for ADC in July 2021, and began working at the Benton Work Release Center.  \nAccording to Ms. Battles, she worked  for the State of Arkansas for a total of approximately 35 \nyears.    \nRegarding  her employment duties  at  the Benton  Work  Release  Center,  as  a  correctional \nofficer, Ms. Battles explained: \n\nBATTLES – H301023 \n6 \n \nA I did confiscation, looking for contraband, and I used to monitor them and go and \ncheck on ‘em every -- every hour.  I was having to have to climb stairs every hour.  Just \ngoing  to  the  gun  range – well,  we  did  that  once  a  yar,  and  just  pretty  much,  you  know, \neverything that correction officers do and checking the contraband mostly. \nQ  Are you required to be 100% for that job? \nA  I am required to be 100%. \nMs. Battles confirmed that on August 15, 2023, they ended her employment with ADC, as \na correctional officer at the Benton Work Release Center.  The reason given for her termination \namounted to her inability to perform the essential employment duties for her job as a correctional \nofficer.   The Claimant specifically testified that  she  did  not get  proper medical documentation \nsaying that she was able to return to work.   \n Regarding her work-related injury, the Claimant confirmed that the date of her accidental \ninjury  was  January  29,  2023.   Ms.  Battles gave  the following description  of how her  injury \nhappened: “I had clocked in, and I was heading to my post, and I end up tripping over some uneven \nsidewalk and fell on my hand, which I end up rolling over to my right side.” \n Ms. Battles testified that she injured her hands, but the primary injury was to the top of her \nright hand.  She also injured her shoulder, hip and back.  The Claimant testified that she has tingling \nand numbness in her hand and arm.  Ms. Battles also testified that she is unable to raise her arm to \nher ear due to her shoulder.  Per Ms. Battles, she has been told she will have to undergo rotator \ncuff  repair surgery.  According  to  the  Claimant,  her  pain  is  located  around  the  ball  area  of  her \nshoulder.  Her hip hurts on the right side.  Per the Claimant, although she can walk, it takes her \nmuch longer to do everything.  Ms. Battles confirmed that she occasionally uses a cane to walk.  \nThe Claimant testified that if she takes a lot of medicine, she can walk but just slowly.  \n\nBATTLES – H301023 \n7 \n \n As of the date of the hearing, the Claimant stated that she must take Ibuprofen every day \nto be able to “just do.”  She confirmed that she sought medical treatment for her hand from Jenna \nPardoe,  who  is  an  APN.  Pardoe  ordered  physical  therapy,  but  she  ended  up  stopping the \nClaimant’s medical treatment.   Ms.  Battles testified  that  she  has  problems  with  her  day-to-day \nactivities due to her shoulder, arm, back, and hip injuries.  She testified that she is unable to do any \ncooking.  Per the Claimant, her granddaughter must help her with that task.  Ms. Battles confirmed \nthat  she  told  Pardoe  she  had  stiffness in  her hand,  wrist,  and  elbow.    However,  the  Claimant \ntestified that the focus of Pardoe’s medical treatment was geared toward her hand.  Pardoe also \nnoted that the Claimant had a contusion on her hand.   According to the Claimant, she was referred \nto Dr. Vargas for her shoulder.  \n Ms. Battles confirmed that she received physical  therapy at the Markham Injury Center.  \nAccording to the Claimant, Public Employee Claims paid for some of her therapy.  The other part \nof the bill is still outstanding.  She was released by Dr. Vargas after the physical therapy sessions \nended.  The Claimant confirmed that Dr. Vargas recommended that she use a cane due to her hip \nissues.          \n Regarding Ms. Battles’ job  duties,  her attorney asked  if  she could do  her  job  at  the \nDepartment of Correction, given her use of a cane, she replied, “Absolutely not.”  Specifically, the \nClaimant testified: \n Q Tell Judge Black why you cannot do your job with a cane. \n A I had 39 steps to climb every hour and there’s no way.  And the inmates seeing’ me \nwith a cane, it would’ve been difficult for - - you know, they can try to, you know, jump \non me or anything with a cane.  \n Q So you couldn’t do the essential functions of the job.  Is that a fair statement? \n\nBATTLES – H301023 \n8 \n \n A That’s fair. \n Ms. Battles confirmed that she was taken off work on April 12 by Dr. Moore.  Per a work \nnote,  the Claimant  was  taken  off  work  due  to  right  shoulder  pain  and a contusion.  Ms.  Battles \nconfirmed that Dr. Moore had sent her to Dr. Bowen for further evaluation.   \nUnder further questioning, the Claimant confirmed that she underwent evaluation by Dr. \nBowen  on  April  25,  2023.    He  did  x-rays  of the Claimant’s back, shoulder, arm, and hip.  The \nClaimant confirmed that Dr. Bowen reported that she has an antalgic gait.  Dr. Bowen ordered an \nMRI of her right shoulder.  On April 25, 2023, Dr. Bowen gave Ms. Battles a letter saying she \ncould return to work on July 3, 2023.   Her restrictions included sedentary work of no lifting of the \nright  upper  extremity.    However,  the  Claimant denied  that  she  would  be  able  to  work  for  the \nDepartment  of  Correction  with  these  light-duty  restrictions.    The  Claimant  admitted  that  Dr. \nBowen is an orthopedic surgeon.  She confirmed that Dr. Bowen showed that she had a torn rotator \ncuff in her right shoulder.  Although Dr. Bowen referred the Claimant to Dr. Collins, she testified \nthat they told her she was not a candidate.  However, Ms. Battles did not explain this statement.  \nShe confirmed that on May 16, 2023, Dr. Bowen told her to remain off work until her appointment \nwith Dr. Collins.  The Claimant confirmed that Dr. Bowen ordered long-term physical therapy.  \nDr.  Vargas  saw  the  Claimant  on  May  22,  2023.    At  that  time,  Dr.  Vargas  instructed  the \nClaimant to refrain from walking for an extended period.  He also told that the Claimant could not \nclimb up and down ladders.  Dr. Vargas also opined that the Claimant did not have the ability to \nrespond to an emergency or carry an inmate.  She confirmed that on May 25, 2023, Dr. Vargas \nsaid that she could not do all the above things, but changed everything to say she could do those \nthings  the  next  day  after  her  job  called them.    The  Claimant  confirmed  that  there  was  no  new \nphysical examination, and her pain had not changed.  Nor had the Claimant’s overall condition \n\nBATTLES – H301023 \n9 \n \nchanged.  She agreed that Dr. Vargas’s recommendation was contrary to what Dr. Bowen had \nrecommended.             \nThe Claimant saw Dr. Brad Thomas on June 7, 2023, per a change of physician order.  He \nreferred the Claimant to Dr. Bowen for her back.  The Claimant saw Dr. Bowen on June 22, 2023.  \nAt that time, Dr. Bowen noted that he had referred the Claimant to Dr. Collins for her back, but \nthis did not go through because he does not take workers’ compensation patients.  Dr. Bowen also \nsaid in his report that the Claimant had made some progress with her shoulder while taking part in \nphysical therapy.  Dr. Bowen opined on June 22 that the Claimant could not do any of the functions \nof her job.   \nOn  November  2,  2023,  the  Claimant  returned  to  Dr.  Bowen,  and  he  discussed  the \npossibility of her undergoing an injection in her shoulder.  The Claimant confirmed that she had \none injection in her shoulder.  Dr. Bowen wanted to switch her physical therapy to see if it could \nhelp her shoulder, back and hip.  The Claimant was under active medical treatment with Dr. Bowen \nfrom May until November.  Her medical treatment included physical therapy, diagnostic studies, \nand he referred her to Dr. Rhodes, who is in the same clinic.  Dr. Bowen reported that the Claimant \ncontinued to have weakness in her right upper extremity, which had gotten worse over the last two \nmonths.  The Claimant testified that she has a frozen shoulder, and as a result, Dr. Bowen referred \nher  for  surgery  on  her  hand.  Ms.  Battles  denied  having  undergone  this  treatment.    Dr.  Bowen \nspecifically mentions   in   his progress report   that   the   Claimant   has “a   right   ulnar   nerve \ndecompression at the wrist, but it is in fact it is really in her elbow.”   \nThe Claimant confirmed that she started physical therapy again and it helped a little bit.  \nRegarding her current symptoms, the Claimant was asked about her right arm, which is below the \nshoulder on the right side.  Specfifically, Ms. Battles testified that she has numbness, tingling and \n\nBATTLES – H301023 \n10 \n \nburning in her fingers.  The Claimant testified that her shoulder pain is a throbbing-excruciating \npain, and she has difficulties raising her hand up.  Per Ms. Battles, she has throbbing hip pain and \ncan hardly move unless she takes a lot of medicine.  The Claimant admitted that previously, she \nretired from work for six months but did not like just sitting around so she went back to work.  The \nClaimant can drive.    She confirmed  that  she  wants  the  surgery and  to  get  better.    She  is \ncontemplating  surgery  on  her  shoulder  but  has  been  told  to  go  back  in  a  year.    The  Claimant \ntestified that she has been told she will need hip replacement surgery in the future, but no one has \nsaid exactly when.   \nShe denied that prior to falling on January 29, 2023, she had not seen a doctor for her right \nhip.    The  Claimant  denied  that  she  ever  had  problems  with  her  right  shoulder  before  her  fall  at \nwork.  She denied previously seeing a doctor for her right shoulder, elbow, or hand.  The Claimant \nadmitted that some years ago, she injured her left hand.  Prior to January 29, 2023, the Claimant \nconfirmed  that  she  was  able  to  do  all  the  essential  functions  of  her  job  at  the  Department  of \nCorrection. \nOn   cross-examination Ms.   Battles confirmed   having   had   her   deposition   taken   on \nNovember 7, 2023.  She confirmed that her family physician is Dr. Thomas Moore.  The Claimant \nadmitted  that  her  normal  shift  hours  in  January  2023  were  from  6:00  a.m.  until  6:00 p.m.   She \nconfirmed that her fall occurred at the beginning of her shift on January 29, 2023.  The Claimant \nadmitted that after her fall, she still pushed on and finished working her shift that day.  However, \nthe Claimant did report her injury to Sergeant Best. \nThe  Claimant  confirmed  that  she sought  initial medical  treatment on  her  own from Dr. \nMoore  after  her  fall  because  he  is  her  primary  care  physician.   She  testified  that  Sergeant  Best \ncalled the 1-800 number to report her fall/claim.  The Claimant admitted that she was present when \n\nBATTLES – H301023 \n11 \n \nthe call was made.  She further admitted that she talked about her incident and the fact that she \ninjured her right hand and took pictures.  The report also talks about some bruising and numbness \nto the right hand.  Management suggested the Claimant to go to MedExpress and then she was sent \nover to OrthoArkansas for her hand.  She admitted that she saw Ms. Pardoe, who works with Dr. \nJeanine Andersson.  The Claimant denied that she ever saw Dr. Jeanine Andersson.  She admitted \nto seeing Dr. Vargas for her shoulder.  \nDuring  her  deposition,  the  Claimant  admitted  she  testified  that  she  had an  unpleasant \nexperience with Ms. Pardoe because she kept bending/hurting her hand to get her to make a fist.  \nThe Claimant admitted that she had an x-ray done on her hand, and it did not show any kind of \nfracture.    Instead, Ms.  Pardoe assessed  the  Claimant  with  a  hand  contusion,  and released  the \nClaimant back to work at full duty.  She agreed that Dr. Vargas released her from his care and back \nto full duty on May 23, 2023, with no restrictions.  The Claimant admitted that she obtained the \ncane on her own.  She confirmed that on May 25, 2023, Dr. Vargas did another statement saying \nthat she could perform her job duties.   \nShe admitted that she has received physical therapy since May of 2023 for her right hand \nand shoulder.  As of the date of the hearing, she continued to receive physical therapy for her back \nas well.   The Claimant testified that she goes to physical therapy twice a week.  She admitted that \nno surgery is scheduled for her back, but it is a possibility in the future.  The Claimant admitted \nthat she has not tried to get her job back, nor has she looked for other work.  Ms. Battles confirmed \nthat Dr. Rhodes recommended surgery for her right wrist or elbow, following an EMG study. \nOn redirect examination, the Claimant admitted that she had hand surgery scheduled for \nDecember 27, 2023, with Dr. Rhodes.  However, Ms. Battles talked to her family and her daughter \n\nBATTLES – H301023 \n12 \n \nis a nurse, and she suggested the Claimant wait.  She agreed that that she is expecting to go back \nand have the elbow and wrist surgery rescheduled, and have it done. \nNichole L. Metott \nMs.   Metott testified  on  behalf  of  the  Respondents.    She  has  been  the  workers’ \ncompensation and FMLA coordinator at the Department of Correction for ten years.  Ms. Metott \nconfirmed  that  she  has  worked  with  the  Claimant  since  January  2023.   She  was  not  aware  of \nanyone calling the 1-800 number, except the Claimant.   She confirmed that the company nurse’s \nreport of injury talked about the incident and/or the body part that was injured, and it lists the right \nhand.  Ms. Metott confirmed that the Claimant began seeing various doctors.  She admitted that \nshe heard the Claimant’s testimony about Ms. Pardoe and Dr. Vargas.    \nSpecifically, Ms. Metott confirmed that she receives medical records from the doctors as \nthey are treating workers’ compensation patients.  She admitted that she received medical records \nfrom Dr. Vargas  and Ms. Pardoe.   Per  a  return-to-work notice dated May  25, 2023, Dr. Vargas \napproved  for  Ms.  Battles to  return  to  work.   According  to  Ms.  Metott,  upon  receipt  of  this \ndocument, she must obtain from the treating doctor a form of the Essential Job Functions, which \nstates there are no restrictions placed on the employee upon their return to work.  She agreed that \nthe Essential Job Function Questionnaire Forms are given to the employee to give to the doctor.  \nMs. Metott denied having received the form from Dr. Vargas dated May 22, 2023, which listed \nthe Claimant’s physical restrictions.  However, Ms. Metott did  recall  having  received  the  form \ndated  May  25,  2023,  wherein Dr.  Vargas said that  the  Claimant  could  return  to  work  with  no \nrestrictions.  Ms.  Metott testified that the Claimant’s workers’ compensation claims adjuster \nreturned the form to her.              \n\nBATTLES – H301023 \n13 \n \nAccording to Ms. Metott, she contacted their HR department, Cheryl Carroll, who was the \nunit manager at the time that the Claimant had been medically cleared.  According to Ms. Metott, \nthere  were  some  discussions  with  Ms.  Carroll  and  the  Claimant to  which  she  was  not  privy.  \nHowever, Ms. Metott testified that it was disclosed to her that the Claimant did not feel comfortable \nreturning to work, so they tried working out FMLA to protect her job.  She confirmed that they do \nhave  a  light  duty  program  to  bring employees back  to  work  at  less  than  full  duty.    Ms.  Metott \nconfirmed that it was finally decided that the Claimant’s employment was going to be ended.  \nShe testified that they tried to work on ADA accommodations for Ms. Battles.  However, \nMs. Metott further testified that when she requested more documentation for the accommodations,  \nthey received the same restrictions from earlier.  They also needed a note of an estimated time of \nwhen the Claimant could return to work.  Per Ms. Metott, the Claimant was given a deadline for \nturning in this paperwork, but she did not meet the deadline.  Ultimately, Ms. Metott explained \nthat the department had to end the Claimant’s employment.  She confirmed that the Claimant did \nin fact file a grievance to get her job back.  According to Ms. Metott, the Claimant withdrew her \ngrievance  prior  to  the  date  of  her hearing because  she had  been approved  for  Social  Security \nDisability benefits.  Ms. Metott confirmed that prior to January 2023 she had not had any dealings \nwith the Claimant. \nOn cross-examination Ms. Metott testified that she was not aware of the Claimant’s change \nof physician to treat with Dr. Thomas.  Nor was she aware of the fact that Dr. Thomas had sent the \nClaimant  to  an  orthopedic  surgeon.   However, Ms.  Metott was  aware  that  a  nurse  from \nrehabilitation went with Ms. Battles to her appointments.  She verified that she is not asserting that \nthe Claimant in any way “doctored” the medical note on page 33 of Claimant’s Exhibit 1.  \n\nBATTLES – H301023 \n14 \n \nMs. Metott confirmed that the Claimant would not be able to do her job as a correctional \nsecurity officer.  She confirmed that she is aware that on May 25, 2023.  Dr. Bowen Hefley, an \northopedic surgeon, has the Claimant down for being able to perform sedentary work.  Ms. Metott \nconfirmed that with those restrictions, the Claimant would not be able to perform her job duties.  \nShe admitted that they did not offer the Claimant any light duty work based on the off-work-slip.  \nMs.  Metott further admitted  that  Dr.  Bowen  placed  these  restrictions  on  the  Claimant  again  on \nJune 22, 2023.  She admitted that they had not received anything from Dr. Bowen saying that Ms. \nBattles could return to work.  Ms. Metott agreed that if we accept Dr. Bowen’s report, the Claimant \nis off work. \n                                                    Medical Records  \nOn February 27, 2023, Ms. Battles underwent a 3-phase bone scan on her right hand.  The \nClaimant complained of numbness and swelling of the right since her injury.  Dr. Ben J. Bartnicke \nrendered the following impression: “1.  No abnormal blood flow, blood pool activity and delayed \nuptake right or wrist (symptomatic side).  2. Mild arthritic changes left hand wrist as discussed \nabove.”  \n On March 22, 2023, the Claimant underwent evaluation for physical therapy treatment by \nTracy Wilson, OTR, due to a right-hand median nerve contusion.  The Claimant presented to the \nclinic  for  weakness,  abnormal  sensation,  loss  of  dexterity,  stiffness,  and  pain.  Ms.  Battles \ncomplained of numbness, pain, decreased fine motor coordination, decreased strength, and loss of \ndexterity.  The Claimant was treated due to “1.  Contusion of right hand.  2. Pain right hand.  Skin \nsensation disturbance.  4. Stiffness of the joint of right hand.  5. Stiffness of right wrist.  6. Stiffness \nof joint of right elbow.  7. Stiffness of right shoulder.” \n\nBATTLES – H301023 \n15 \n \n On April 12, 2023, Dr. Thomas Moore authored a Return to Work Note.  He indicated that \nthe Claimant’s injury or illness was due to right shoulder pain/contusion.  Dr. Moore directed the \nClaimant to remain off work until she was cleared by the ortho clinic that she was being referred \nfor further evaluation.       \n Ms. Battles underwent evaluation on April 23, 2023, by Dr. W. Scott Bowen.  At that time, \nthe  Claimant  presented  to  Dr.  Bowen  for  the  low  back  pain  and  related  symptoms.   Dr.  Bowen \nordered MRIs of the Claimant’s lumbar spine and right shoulder.  He returned the Claimant to \nsedentary work with no use of her right arm based on her current issues. \n On April 25, 2023, Dr. Bowen authored a letter: “To Whom It May Concern:  Please be \nadvised that Willie M. Battles is/has been under my orthopedic care.  She was seen in the office \nfor  an  appointment  today.    She  may  return  to  work  July  3,  2023.   Her  restrictions included: \n“sedentary work only, no lifting of right upper extremity.”      \n Dr. Bowen saw the Claimant for a follow-up visit on May 16, 2023, of her right hip and \nright shoulder and hand pain and weakness.  He noted that the Claimant was referred by Dr. Moore \nand they were unaware this was workers’ compensation case.  He also noted that the Claimant had \nalready been evaluated at OrthoArkansas by Dr. Vargas and she had gone through some physical \ntherapy and had an EMG and nerve conduction study of her right shoulder and arm.  However, \nthose  results  were  not  available.  Diagnostic  test findings of the MRI of the Claimant’s lumbar \nspine showed some mild canal stenosis from L3 to L4-L5 moderate bilateral foraminal stenosis at \nL4-L5.  The right shoulder MRI shows a low-grade partial tear and tendinitis of the supraspinatus \nand tendinosis of the infraspinatus a small partial tear of the subscapularis and mild glenohumeral \narthrosis without a significant rotator cuff tear.  Per this medical note, earlier x-rays of the pelvis \nrevealed moderate arthritis with cystic changes in the acetabulum.  Dr. Bowen’s impression was \n\nBATTLES – H301023 \n16 \n \n“Traumatic injury from her initial fall producing right shoulder weakness and apparently a nerve \ninjury to her hand.” His  treatment  plan  included  a  referral  to  Dr.  Collins  to  help  manage  her \nworkers’ compensation claim and she was not in need of surgical intervention from his perspective \nat that time.  The Claimant was given an excuse for her office visit.  Dr. Bowen said that he would \nmake a referral to a specialist and contact her with that appointment.  At that time, he also said that \nthe Claimant will remain off work until her appointment with Dr. Kevin Collins.  \n On May 22, 2023, Dr. Vargas returned the Claimant to full duty work with no restrictions.  \nHowever, per the Essential Job Function Questionnaire provided by the Arkansas Department of \nCorrection he checked several functions that the Claimant was restricted from engaging in several \nactivities.   \n However,  just  two  days later May  25, 2023, Dr.  Vargas  completed  the  Essential  Job \nFunction  Questionnaire  provided  by  the  Arkansas  Department  of  Correction.    Dr.  Vargas  note \nchecked all the boxes “Yes” saying the Claimant could perform all the essential job activities. \n On  June  7, 2023, Ms.  Battles presented  to  the  office  of  Dr.  Brad  Thomas  with  a chief \ncomplaint  of  a  work  accident.    Dr.  Thomas  noted  that  the  Claimant  fell  on an  uneven concrete \nsidewalk and rolled over onto her right side.  The Claimant reported having bruised her right hand \nvery badly.  According to this medical report, Ms. Battles originally thought she was going to be \nokay.  A couple of days later the Claimant went to see her PCP/Dr. Thomas Moore.  Dr. Thomas \nsent the Claimant for physical therapy on her right hip and right hand.  Per this clinic note, although \nMs. Battles reported she was unable to make a fist and the physical therapist documented this, the \nClaimant was then released from care.  The Claimant reported to Dr. Thomas she was currently \ndoing therapy at Markham Injury Clinic for her right hand and shoulder with some improvement.  \nThe Claimant was also released to work for her hand and shoulder.  According to this report, Ms. \n\nBATTLES – H301023 \n17 \n \nBattles has been walking with a cane since February due to mobility problems with her back.   Dr. \nThomas assessed the Claimant with “low back pain.”  Although the Claimant had an MRI of her \nback done previously, Dr. Thomas was unable to view the images remotely.  He planned to review \nthe MRI and contact her later with his recommendation.  Dr. Thomas stated that if he did not find \nan issue with her spine, he would refer her back to Dr. Bowen.      \n Ms. Battles presented to the clinic of Bowen Hefley Orthopedics on June 22, 2023, for a \nfollow-up visit.  During that clinic visit, the Claimant underwent reevaluation by Christian Perry, \nPA-C for right shoulder and back pain.  The Claimant reported that she was taking part in physical \ntherapy and had made progress with her shoulder but continued to have discomfort in her spine.   \nPerry’s assessment was “Chronic right shoulder and back pain, for which she continued the \nClaimant’s formalized physical therapy.”  She stated that the Claimant was not a surgical candidate \nand that she believed further conservative care was warranted.  Per this note, Perry instructed the \nClaimant  to  stay  off  work  until Dr.  Kevin  Collins  evaluated  her.   According  to this  medical \ndocumentation, Perry said that they would make a referral to a specialist and contact the Claimant \nwith that appointment. \n Also  on  June  22,  2023,  Dr.  Bowen  completed  the  Arkansas  Department  of  Correction \nEssential  Job  Function  Questionnaire  for  a  Correctional  Officer  I/Corporal.    He  checked all the \nboxes for “No,” saying that the Claimant did not have the ability to perform any of the functions \nwith or without reasonable accommodation.  Dr. Bowen specifically said that the Claimant was \ntemporarily disabled.      \n Dr.  Moore  reevaluated  the  Claimant  in  another  follow-up  visit  for  her  hip  and  shoulder \npain on July 17, 2023.  He also reevaluated the Claimant on August 14, 2023.   \n\nBATTLES – H301023 \n18 \n \n Subsequently on November 2, 2023, Dr. Bowen saw Ms. Battles for evaluation of her right \nshoulder,  lower  back,  right  hip,  and  right-hand  complaints.   Dr.  Bowen  reported  that physical \nexamination of the Claimant’s right shoulder revealed, “Right shoulder she is guarding and today \nand is tender globally but more so over the anterolateral acromial area with assistance, I am able \nto  forward  elevate  to  about  120  degrees  and  abduct  to  90  and there  is  guarding  and  resistance \nbeyond that. She is tender over the lateral acromial area referring to the deltoid.  Mildly positive \nJobe’s and O’Brien sign noted.”  His examination of her right hip revealed “Tenderness in the \nanterior and lateral hip and groin area with rotation of her hip and forward flexion.  Neuro intact.”  \nDr. Bowen planned to change the Claimant’s physical therapy treatment to their location, to see if \nshe is responding to therapy.  He also planned to obtain the results of the EMG nerve conduction \nstudies and refer her to one of their hand specialists to figure out the next step for her hand and \nwrist.  Dr. Bowen said that if the Claimant does not respond to conservative care for her shoulder, \nthen she may be a candidate for arthroscopic surgery later.  He stated that the Claimant’s right hip \nis arthritic and predated her injury and was not caused by her fall but was possibly aggravated by \nthe injury and she will face total hip replacement later in life.  Additionally, Dr. Bowen said he \nwould make a referral to a pain management specialist and contact the Claimant.      \n Dr. David Rhodes evaluated the Claimant right hand on November 30, 2023.  He stated \nthat the nerve conduction study performed on March 8, 2023, was unremarkable.  However, Dr. \nRhodes  stated  that  the  Claimant  was  diagnosed  with  possible  early  carpal  and  cubital  tunnel \nsyndrome.  She treated conservatively with splints and continued to have numbness and tingling \nthat is progressively getting worse.  The Claimant reported that she had also noticed weakness in \nher right upper extremity that has gotten worse over the past two months.  Dr. Rhodes’ impression \nwas  “Right  cubital  tunnel  Syndrome;  and  right-hand  carpal  tunnel  syndrome,”  which  he \n\nBATTLES – H301023 \n19 \n \nrecommended that the Claimant undergo “right median nerve decompression at the wrist and right \nulnar nerve decompression at the elbow.” \n On December 7, 2023, the Claimant returned to Dr Bowen’s office for a follow up visit.  \nShe returned after having started therapy which helped a lit bit.  The injection to her shoulder did \nnot help.  Dr. Bowen’s impression was: “Right shoulder myofascial strain with mild bursitis.  Right \ncarpal tunnel syndrome, lower back spinal arthritis, and mild arthritis right hip.”  As a result, Dr. \nBowen stated, “I believe she needs to be under pain management.”              \n                    ADJUDICATION \nA. Additional Medical Treatment  \nAn  employer  shall  promptly  provide  for  an  injured  employee  such  medical  treatment  as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn.  §11-9-508(a).    The Claimant bears  the  burden  of  proving  that she  is  entitled  to  additional \nmedical treatment.  Dalton v. Allen Eng'g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999).  \n Reasonable  and  necessary  medical  services  may  include  those  necessary  to  accurately \ndiagnose the nature and extent of the compensable injury, to reduce or alleviate symptoms resulting \nfrom  the  compensable  injury,  to  maintain  the  level  of  healing  achieved;  or  to  prevent further \ndeterioration of the damage produced by the compensable injury.  Jordan v. Tyson Foods, Inc., 51 \nArk. App. 100, 911 S.W. 2d 593 (1995).  \n Here, Ms. Battles, sustained admittedly compensable injuries on January 29, 2023, during \nand  in  the  course  of  her  employment  with  the  Department  of  Correction,  while  working  as  a \ncorrectional officer at the Benton Work Release  Center.  She was injured when she tripped and \nfell on over some uneven concrete sidewalk, injuring her right side.  The Claimant’s primary injury \nwas to her hand.  In particular, Ms. Battles sustained compensable injuries to her right hand/arm, \n\nBATTLES – H301023 \n20 \n \nright shoulder,  hip  and  back. The Claimant  has  received  conservative  treatment  for  her \ncompensable injuries.  Most of the Claimant’s initial medical care was done at OrthoArkansas by \nDr. Vargas and Jenna Pardoe, PA-C. The Respondents paid for this treatment.  Dr. Vargas provided \nthe Claimant with treatment for her hip and shoulder injuries.  On April 3, 2023, Dr. Vargas found \nthe  Claimant  to  be  at  maximum  medical  improvement/MMI  for  her  hip  and  shoulder  injuries.  \nPardoe primarily treated the Claimant’s hand and found her to be at MMI for that injury on April \n10,  2023.  However,  these conservative treatment  modalities in  the  form  of  medications  and \nphysical  therapy have provided the Claimant with only minimal  relief from her pain  and  other \nrelated symptomatology resulting from her compensable fall of January 29, 2023.   \nAs a result, the Claimant sought additional medical care for her injuries on her own and \nsome of the medical treatment was not pursuant to a valid referral and was thus unauthorized.  At \nthe beginning of the hearing, the Claimant’s attorney acknowledges that this occurred. Therefore, \nit is Claimant’s position that the Respondents are not liable for the initial treatment the Claimant \nreceived from Dr.  Bowen.    However,  the  Claimant  received  a  change  of  physician  to treat Dr. \nThomas, who in June of 2023 referred the Claimant back to Dr. Bowen after performing diagnostic \nstudies.  (TR. 9)  \nTherefore, at issue it is the medical treatment of record that the Claimant received from Dr. \nBowen beginning in June 2023 when Dr. Thomas referred the Claimant back to Dr. Bowen as part \nof the authorized physician chain of referral.  Also, the Claimant was referred to Dr. Rhodes for \ntreatment of her injuries.    \nDespite  extensive  conservative  medical  treatment, the Claimant  has continued  with \nsignificant pain and other related symptoms since her fall.  However, this treatment modality only \nintensified the Claimant’s symptoms, particular her right hand and arm symptoms.  The Claimant \n\nBATTLES – H301023 \n21 \n \ncredibly testified that prior to her accidental fall at work she was able to perform her job duties as \na correctional officer without any difficulties.  Her testimony proves that she had not had any prior \nproblems with her right hand, hip, shoulder or back.  Nor had the Claimant ever sought any earlier \nmedical treatment for these bodily parts.  No evidence whatsoever has been presented to conflict \nMs. Battles’ testimony in this regard.        \nThe Claimant has also treated conservatively with splints, but she has continued to have  \nnumbness and tingling in her had that is progressively getting worse.  The Claimant reported that \nshe had also noticed weakness in her right upper extremity that has gotten progressively worse.  \nThere is no evidence showing that the Claimant sustained a subsequent accident after her work-\nrelated  fall  in  January  of  2023.  In  November  2023  Dr.  Rhodes  evaluated  the  Claimant.    His \nimpression was “Right cubital tunnel Syndrome; and right-hand carpal tunnel syndrome,” for \nwhich he recommended that the Claimant undergo “right median nerve decompression at the wrist \nand right ulnar nerve decompression at the elbow.” Although the Claimant scheduled to undergo \nthis surgery, she cancelled the surgery.  However, Ms. Battles testified that she is now willing to \nundergo this surgery.  Additionally, Dr. Bowen has recommended that the Claimant undergo pain \nmanagement for her other injuries.   \n  In light of the persistent nature of the Claimant’s symptoms despite various conservative \ntreatment  modalities,  the  lack  of any  of  these symptoms  prior  to her injury,  and  there  being  no \nindependent intervening cause, I find that the Claimant has established by a preponderance of the \ncredible evidence that her work-related incident of January 29, 2023, has resulted in her need for \nadditional  medical  treatment provided  and recommended  by  Dr. Rhodes  to include the above \nsurgical  intervention,  as  well  as  the  recommendation  for  pain  management  as indicated by  Dr.  \nBowen. \n\nBATTLES – H301023 \n22 \n \n  In other words, I this find that all the medical treatment of record made on valid referral \nper the  recommendation  of  Dr.  Thomas  beginning  in  June  of  2023  is reasonable  and  necessary \ntreatment in connection with the Claimant’s compensable fall January 2023.  Hence, I further find \nthat  this  additional  medical  treatment of  record  and  that which  has  been  recommended  by  Dr. \nBowen is reasonably necessary to reduce and/or alleviate the Claimant’s compensable hip, back \nand shoulder injuries, and their resulting symptoms.       \n I realize that Dr. Vargas and Ms. Pardoe have assessed the Claimant to be at MMI for her \nwork injuries, however, minimal weight has been assigned to these assessments based on all of the \nabove cited evidence to contrary.       \nB.  Temporary Total Disability Compensation \nIn the present matter, the Claimant has asserted her entitlement to temporary total disability \ncompensation from  May  2023 to  a  date  yet  to  be decided.   The  Claimant  sustained  both \nunscheduled and scheduled injuries.  However, the Claimant’s most significant injury has been to \nher  right  hand/arm,  which  is  a  scheduled  injury.    Therefore,  for  the  purpose  of  temporary  total \ndisability compensation, the Claimant’s right-hand injury will be addressed in this regard since the \nClaimant is allowed to recover for only one period of temporary total disability.  The Claimant’s \nhand injury is a scheduled injury.  \n     An employee who has suffered a scheduled injury is entitled to compensation for temporary \ntotal disability during her healing period or until the employee returns to work, whichever occurs \nfirst.  Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001).  The healing \nperiod is that period for healing of the injury which continues until the employee is as far restored \nas the permanent character of the injury will permit.  Nix v. Wilson World Hotel, 46 Ark. App. \n303, 879 S.W.2d 457 (1994).  If the underlying condition causing the disability has become more \n\nBATTLES – H301023 \n23 \n \nstable and if nothing further in the way of treatment will improve that condition, the healing period \nhas ended.  Id. Whether an employee's healing period has ended is a factual determination to be \nmade  by  the  Commission.  Ketcher  Roofing  Co.  v.  Johnson,  50  Ark.  App.  63,  901  S.W.2d  25 \n(1995). \nHere, the Claimant sustained a compensable injury to her right hand/arm,” on January 29, \n2023.  Since this time, the Claimant has continued in significant pain, tingling and numbness of \nher  right  hand.    After  the  Claimant  failed  conservative  treatment to her  right  hand,  Dr.  Rhodes \nrecommended surgery, which she is now willing to undergo.  Because of her right-hand injury, the \nClaimant has not returned to work as a correctional officer at least since May of 2023.  \nHence, the Claimant’s testimony and the documentary medical reports support a finding \nthat the Claimant’s healing period for her hand injury has not ended since the date of her injury. \nUnder  these  circumstances,  I  find  that  the Claimant has  remained  in  her healing  period  since \nJanuary 29, 2023, and continuing.   \nTherefore, based on the record, I further find that the Claimant proved by a preponderance \nof  the  evidence  her entitlement  to  temporary  total  disability  from May  of  2023,  and  continuing \nuntil the pronouncement of maximum medical improvement by Dr. Rhodes following her surgery. \nC.  Attorney’s Fee \nThe Respondents have stipulated that they controverted this claim for additional benefits  \nin its entirety.  Therefore, the Claimant’s attorney is entitled to a controverted attorney’s fee on all \nindemnity benefits awarded to the Claimant, pursuant to Ark. Code Ann. § 11-9-715. \n  \nAWARD \n \nThe Respondents are directed to pay benefits in accordance with the findings of fact set \nforth herein this Opinion.   \n\nBATTLES – H301023 \n24 \n \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \n  Per Ark. Code Ann. §11-9-715, the Claimant’s attorney is entitled to a 25% attorney’s fee \non the indemnity benefits awarded herein.  This fee is to be paid one-half by the carrier and one-\nhalf by the Claimant.  \nAll issues not addressed herein are expressly reserved under the Act. \nIT IS SO ORDERED. \n \n \n       __________________________ \n       CHANDRA L. BLACK \n       ADMINISTRATIVE LAW JUDGE","textLength":46720,"preview":"BEFORE THE ARKANSAS WORKERS’COMPENSATION COMMISSION CLAIM NO.: H301023 WILLIE MAE BATTLES, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRRECTION/ (BENTON WORK RELEASE CENTER), EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 6, 2024 A hearing was held before Adminis...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","shoulder","hip","rotator cuff","wrist","fracture","lumbar","strain"],"fetchedAt":"2026-05-19T22:53:51.509Z"},{"id":"full_commission-H108821-2024-05-03","awccNumber":"H108821","decisionDate":"2024-05-03","decisionYear":2024,"opinionType":"full_commission","claimantName":"Wanda Muldrow","employerName":"Department Of Workforce Services","title":"MULDROW VS. DEPARTMENT OF WORKFORCE SERVICES AWCC# H108821 MAY 3, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Muldrow_Wanda_H108821_20240503.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Muldrow_Wanda_H108821_20240503.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H108821 \n \nWANDA MULDROW, EMPLOYEE    CLAIMANT \n \nDEPARTMENT OF WORKFORCE SERVICES, \nEMPLOYER                                                                           RESPONDENT \n \nSTATE OF ARKANSAS/PUBLIC EMPLOYEE  \nCLAIMS DIVISION, INSURANCE CARRIER/TPA                 RESPONDENT \n \nOPINION FILED MAY 3, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed January 19, 2024. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations contained in the prehearing order filed \nSeptember 20, 2023, which the parties modified and \naffirmed on the record at the hearing, hereby are \naccepted as facts. \n  \n2. The claimant has failed to meet her burden of proof in \ndemonstrating she is entitled to TTD benefits from \nMarch 8, 2022, through August 14, 2023. \n \n\n \nMuldrow-H108821    2  \n \n \n3. The claimant’s attorney is not entitled to a fee on these \nfacts. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n Therefore, we affirm and adopt the January 19, 2024 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite concurs. \nCONCURRING OPINION \n After my de novo review of the entire record, I concur with the \nmajority opinion finding that the Claimant failed to prove by a \n\n \nMuldrow-H108821    3  \n \n \npreponderance of the evidence that she is entitled to temporary total \ndisability benefits from March 8, 2022, through August 14, 2023.  I write \nseparately for the benefit of the Claimant.  \n While Claimant did sustain a compensable injury to her left index \nfinger, there does not appear to be any evidence in the record that Claimant \nhas met the requirements of Ark. Code Ann. § 11-9-521(a). There is no \nevidence in the record that Claimant’s authorized physician restricted her \nability to work because of her compensable injury. Thus, I cannot say that \nthe Claimant’s injury to her left index finger entitled Claimant to temporary \ntotal disability benefits from March 8, 2022, through August 14, 2023.  \n For the foregoing reasons, I concur with the majority opinion. \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":3333,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H108821 WANDA MULDROW, EMPLOYEE CLAIMANT DEPARTMENT OF WORKFORCE SERVICES, EMPLOYER RESPONDENT STATE OF ARKANSAS/PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 3, 2024 Upon review before th...","outcome":"affirmed","outcomeKeywords":["affirmed:4","modified:1","granted:3","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.412Z"},{"id":"alj-H302088-2024-05-03","awccNumber":"H302088","decisionDate":"2024-05-03","decisionYear":2024,"opinionType":"alj","claimantName":"David Fulk","employerName":"Shearers Foods LLC","title":"FULK VS. SHEARERS FOODS LLC AWCC# H302088 May 3, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Fulk_David_H302088_20240503.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Fulk_David_H302088_20240503.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H302088 \n \n \nDAVID M. FULK, EMPLOYEE CLAIMANT \n \nSHEARERS FOODS LLC, \nEMPLOYER RESPONDENT \n \nTRAVELERS INDEMN. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MAY 3, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  May  3,  2024,  in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Amy C. Markham, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on May 3,  2024, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  without  objection  was Commission  Exhibit  1,  forms, \npleadings, and correspondence related to this claim, consisting of 25 pages. \n The record reveals the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on March  31,  2023,  reflects that \nClaimant purportedly suffered an injury to his skull as a result of a fall at work on \n\nFULK – H302088 \n2 \n \nFebruary  3,  2023.   Per  the  Form  AR-2  filed  on March  31,  2023,  Respondents \ncontroverted the claim in its entirety. \n On March  29,  2023,  Claimant  filed  a  Form  AR-C,  alleging  that  he  was \nentitled  to  initial and  additional benefits for his  alleged  work-related injuries.  He \nelaborated that his fall at work was due to a seizure, and that although “the cause \nof  the  seizure  is  unknown,  [it]  could  have  been  cause[d]  by  chemicals  in  the \nplant.”  After  an  attempt  to  set  up  a  Legal  Advisor  conference  with  the  parties \nfailed, the file was assigned to me on June 29, 2023, to conduct a hearing on the \nmerits of the claim.  Prehearing questionnaires were issued to the parties on July \n13, 2023.  However, Claimant’s questionnaire was returned because the address \nto  which  it  was  sent  was  incorrect  (despite the  fact that  it was  the  address  he \nlisted  on  his  Form  AR-C).   The  questionnaire  was  re-sent  to  the  new  address \nsupplied  by  him.   Respondents’ counsel entered  her  appearance  on  August  10, \n2023,  and confirmed  that her clients  were still controverting  the  claim  in  its \nentirety.  While  Respondents  filed  a  timely  response  to  the  questionnaire  on \nAugust 17 and September 27, 2023, Claimant failed to do so, despite being given \nan extension until August 14, 2023.  For that reason, the file was returned to the \nCommission’s general files on September 28, 2023. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nFebruary 15,  2024,  when  Respondents  filed  the  instant Motion  to Dismiss, \ncontending that “[t]here  has  been  no  bona  fide  request  for  a  hearing  within  the \npast six months.”  On February 21, 2024, my office wrote Claimant, requesting a \n\nFULK – H302088 \n3 \n \nresponse  to  the  motion  within 20 days.   This  correspondence  was  sent  by  both \ncertified  and  first-class  mail to  the Jonesboro address  for  Claimant that  he \nsupplied  to  my  office.   The  certified  letter was  returned  to  the  Commission, \nundelivered, on March 29,  2024;  but the  first-class  correspondence  was not \nreturned to  the  Commission.  However,  no  response  by  Claimant  to  the  motion \nwas forthcoming. \n On March 14, 2024, a hearing on Respondents’ motion was scheduled for \nMay 3,  2024, at 10:30 a.m.  at  the Craighead  County  Courthouse in Jonesboro.  \nThe Notice of Hearing was sent to Claimant by certified and first-class mail to the \nsame address as  before.  Yet  again,  while  the certified letter  was returned—on \nApril 22, 2024—the first-class letter was not returned. \n The  hearing  proceeded  as  scheduled on May 3,  2024.    Claimant  failed  to \nappear  at  the  hearing.    But  Respondents  appeared  through  counsel  and  argued \nfor  dismissal  under Ark.  Code  Ann § 11-9-702(a)(4)  (Repl.  2012)  and AWCC  R. \n099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n\nFULK – H302088 \n4 \n \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute his claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction in pursuit of his claim since the filing of his Form AR-C on March 29, 2023.  \nMoreover,  he  failed  to  appear  on  the  hearing  to  argue  against  dismissal  of  the \nclaim, despite the evidence showing that both he and Respondents were provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon.  Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.    Because  of \nthis finding, it is unnecessary to address the applicability of Ark. Code Ann. § 11-\n9-702(a)(4) (Repl. 2012). \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \n\nFULK – H302088 \n5 \n \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).   The Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7154,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H302088 DAVID M. FULK, EMPLOYEE CLAIMANT SHEARERS FOODS LLC, EMPLOYER RESPONDENT TRAVELERS INDEMN. CO., CARRIER RESPONDENT OPINION FILED MAY 3, 2024 Hearing before Administrative Law Judge O. Milton Fine II on May 3, 2024, in Jonesboro, Craighead County, Arka...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:53:47.336Z"},{"id":"alj-H303578-2024-05-03","awccNumber":"H303578","decisionDate":"2024-05-03","decisionYear":2024,"opinionType":"alj","claimantName":"Brandon Shackleford","employerName":"Allen Family Enterprises, LLC","title":"SHACKLEFORD VS. ALLEN FAMILY ENTERPRISES, LLC AWCC# H303578 May 3, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/SHACKLEFORD_BRANDON_H303578_20240503.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHACKLEFORD_BRANDON_H303578_20240503.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H303578 \n \nBRANDON G. SHACKLEFORD, EMPLOYEE      CLAIMANT \n \nALLEN FAMILY ENTERPRISES, LLC, (AFE, LLC,)  \nEMPLOYER                        RESPONDENT \n    \nNATIONAL INSURANCE COMPANY/SEDGEWICK \nCLAIMS MANAGEMENT SERCVICES, INC, CARRIER/TPA       RESPONDENT \n \n \n \nOPINION FILED 3 MAY 2024 \n \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 7 February 2024 in Little Rock, Arkansas. \n \nMr. Gary Davis, of the Davis Law Firm, appeared for the claimant. \n \nMr. Jason Ryburn, of the Ryburn Law Firm, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 7 February 2024 in Little Rock, Arkansas, after \nthe  parties participated  in  a pre-hearing  telephone  conference  on 19 September 2023.  The \nsubsequent Prehearing Order, admitted to the record without objection as Commission’s \nExhibit No 1, was entered on the same day that the conference was held. The Order stated \nthe following ISSUES TO BE LITIGATED: \n1.  Compensability. \n2.  Temporary Total Disability (TTD) benefits. \n3.  Medical Benefits. \n4.  Controverted Attorney’s Fee. \nThe parties’ CONTENTIONS, as set forth in their Prehearing Questionnaire Responses, \nwere incorporated into the Prehearing Order. The claimant contends: \n\nSHACKLEFORD- H303578  \n2 \n \n1.  That he sustained compensable injuries on or about 5 May 2023 to his right arm and \nelbow. \n2. That he is entitled to TTD benefits from 15 May 2023\n1\n through a date yet to be \ndetermined. \n3.  That he is entitled to coverage for reasonable and necessary medical expenses. \n4.  That he is entitled to a controverted attorney’s fee. \nThe respondents contend: \n1. That the claimant did not sustain a compensable injury. \n2. That the claimant sought and underwent unauthorized treatment.\n2\n \n3. That to the extent that the claimant may be entitled to TTD benefits, the \nrespondents are entitled to a credit for any unemployment benefits he received during a \nperiod of TTD entitlement.\n3\n \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on or about 5 May 2023, at which \ntime the claimant sustained alleged injuries to his right arm and elbow. \n \n3.  Claimant’s Average Weekly Wage of $771.00 entitles him to compensation rates of \n$514.00/$386.00.\n4\n \n \nThe  following  WITNESSES  testified  at  the  hearing:  the  claimant  testified  on  his  own \nbehalf, Ms. Teresa Tessman testified on behalf of the respondents, and Mr. Chandler Jackson \nBrinkman was called by the respondents for the purpose of rebuttal testimony.\n5\n \n \n1\n See TR at 7-8. \n2\n See FN 1. \n3\n See FN 1.  \n4\n See TR at 5. \n5\n The claimant objected to Mr. Brinkman’s testimony because he was not identified with at \nleast seven days’ notice, per the Prehearing Order. That objection was sustained. His \ntestimony was then proffered as a rebuttal witness.  \n\nSHACKLEFORD- H303578  \n3 \n \nAdmitted  into  evidence  were Commission’s  Exhibit  No  1  (the  Prehearing  Order), \nClaimant’s Exhibit Nos 1 (medical records between 05/15/2023 and 08/03/2023), 2 (medical \nrecords between 09/28/2023 and 01/22/2024), and 3 (a text message dated 05/15/2023); and \nRespondent's Exhibit Nos 1 (miscellaneous records) and 2 (the transcript from the claimant’s \ndeposition). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law under \nACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The claimant proved by a preponderance of the evidence that he suffered a \ncompensable injury to his right arm/elbow by specific incident. \n \n4.  The claimant proved by a preponderance of the evidence that he is entitled to TTD \nbenefits from 15 May 2023 to a date yet to be determined, less the amount of credit the \nrespondents may claim against any unemployment benefits received by the claimant. \n \n5.  The claimant proved by a preponderance of the evidence that all treatment in \nevidence of his compensable right arm/elbow injury was reasonable and necessary. \n \n6.  The claimant proved by a preponderance of the evidence that he is entitled to a \ncontroverted attorney’s fee, under ACA § 11-9-715, on the indemnity benefits awarded \nherein. \n \nIII.  HEARING TESTIMONY & MEDICAL EVIDENCE \nClaimant Brandon Shackleford \nThe claimant is a 38-year-old male with a high school diploma. At the time relevant to \nthis  matter, he  had  been  on  the  job  with  the  respondent-employer for  about  ten  months, \nworking on  a  crew  that performed  parallel drilling and  placed conduit for underground \nutilities. [TR at 17.]  \n\nSHACKLEFORD- H303578  \n4 \n \nAccording to the claimant, he and his crew were working at a residential neighborhood in \nBenton  on  5  May  2023.  They  were  having  trouble  breaking  through  the  ground,  so  the \nclaimant borrowed a rock bar tool from other contractors also on the site. [TR at 18-19.] A \nrock bar, he explained, is a heavy steel pole, about six feet long and weighing thirty-five or \nso  pounds, with  a  sharpened  point  on  one  end  that  can  help  loosen  solid  ground.  Mr. \nShackleford said that when he stabbed the bar into the ground, he felt something in his elbow \nand knew that “[s]omething was not right.” [TR at 20.] He  described  the  pain  as  a  sharp, \nripping  pain,  but  tried  to  keep  working.  The  claimant  stated  that  he later struggled  to \nmanage  a  water  line  issue  by  himself (as  he  normally  would) and  that  others  on  the  crew \nultimately had to join in to help with the fix. [TR at 22.] The claimant testified that Chandler \nJackson Brinkman was with him when he first hurt his arm, that he told his supervisor “B.J.” \nthat his arm was “messed up” from using the rock bar, and  that B.J. did  not  ask him  any \nquestions about it afterwards. [TR at 23.] \nMr. Shackleford testified that the next week everyone knew he had been hurt and that \nhe reported his arm being swollen to “Trevor” (his contact for work scheduling), but that he \nreceived no direction on seeking care. [TR at 25.] He went on, “It came around Sunday and \nI’m still no better and I said, ‘I’ve had enough of it,’ and I ended up contacting the owners of \nthe company.” [TR at 28.] Mr. Shackelford recalled sending a text message: “Look I need to \nget the workers’ compensation information and get something going, ‘cause my arm ain’t no \nbetter.” The text was sent on Sunday, 14 May 2023, to owner Jeremy “Beau” Allen. [TR at \n29.] \nMr. Shackleford stated that the next day he presented to the emergency department at \nSaline  Memorial  Hospital,  following  direction  from  Teresa  Tessman,  a  co-owner  of  the \nrespondent employer. [TR at 30.] The encounter notes from that visit show that the claimant \nreported pain in his elbow and arm after using a heavy metal bar to break up the ground. He \n\nSHACKLEFORD- H303578  \n5 \n \nwas  diagnosed  with  Lateral  Epicondylitis  of  the  elbow.\n6\n [Cl. Ex. No 1 at 2.] The  claimant \ntestified  that  he  followed  up days  later at  a  Concentra  clinic,  again  at  the  direction  of  his \nemployers.  [TR  at  31.]  He  then  went  sometime  without  care because,  according  to  his \ntestimony, he did not have adequate health insurance after separating from his employment. \nThe  claimant  explained  that  he  had  difficulty  arranging  physical  therapy treatments that \nwere recommended because the respondents “ghosted” him. [TR at 33-34.] That led him to \ncontacting counsel and then reengaging in treatment after he received approval for Medicaid \ncoverage. [TR at 35.] \nThe claimant explained that he saw a physician again and began physical therapy. “So, I \ndid the nine weeks of physical therapy, and it did no good. Then, they did an injection, and it \ndid no good either. Then, he referred me to the doctor that I have now, Dr. Norton.” Id. He \ncontinued, “Dr. Norton did everything. He got me a MRI, and then, identified that there was \nsignificant tear damage, and then repaired the damage, and then, I’m ongoing in his medical \ncare right now.” [TR at 36.] He  said  that  his  then-current  treatment  included  physical \ntherapy two times per week. Id. \nAfter reporting the injury, seeking care, obtaining restrictions, and following up with the \nrespondents about returning to work, Mr. Shackleford stated that he was told that light duty \nwas  not  available.  They  offered,  according  to  his  testimony,  to  match  his accrued  and \navailable paid time off (PTO) of five days with another five days of paid time off work.  \nBy then, after they tell me, after my last day of being on PT – or the \nday  that  they  matched  me,  which  was  going  to  be  ten  paid  days \naltogether that, hopefully, by then my workers’ compensation would \nkick  in. On the – my  10\nth\n day of  being  paid this  PTO  that  they was \nmatching, they ended up sending me a letter and it was resigning me \nfrom my job, terminating me.  \n \n \n6\n The diagnosis line on the note mistakenly lists the left arm, while the rest of the note \nconsistently refers to the right arm, which is consistent with the claimant’s testimony and \nthe issues before the Commission. The reference to his left arm is clearly a scrivener’s error. \n\nSHACKLEFORD- H303578  \n6 \n \n[TR at 38.] \nMr. Shackleford eventually applied for unemployment and testified that the respondent-\nemployer objected to his unemployment benefits, so a hearing was scheduled on that matter. \n[TR at 37.] He said that for their argument against benefits being granted, the respondents \ncited excessive  absenteeism.  The  claimant eventually prevailed  and  received  benefits.  He \nrecalled that the amount was around $4,800 or consistent with the amounts reflected in the \nrecords provided by the respondents.\n7\n  \nIn  closing  his  testimony  on  direct  examination,  the  claimant  stated  that  he  did  not \nexperience problems with his right arm prior to the work incident at issue in this claim. [TR \nat 39.] \nOn cross examination, the claimant confirmed that the rock bar he used at the work site \nwas borrowed from another crew on location and that it was bent. Still, the bar was heavy, \nand he hoped it would help break through the hard ground. [TR at 43-44.] Mr. Shackleford \nrecalled stabbing the bar at the ground only once, and then his coworker tried a time or two \nbefore Trevor told them to stop because he thought that a gas leak might have caused the \nground to harden. [TR at 45.] He testified again that he tried to continue working that day, \nbut  that  he  did  not  do  any  more  digging  after  hurting  his  arm.  He also  said that as  he \ncontinued  to  experience  trouble  with  his  arm, he  attempted  to  seek  guidance from  his \nemployer on  obtaining care.  [TR  at  46.] The  claimant  agreed that  he was  paid  through  26 \nMay  2023  and  that  the  last ten days  of his pay  were from earned  PTO combined  with the \nmatching time offered by the respondents. [TR at 51.] \nThe examination then turned to the claimant’s application for unemployment benefits. \nHe  affirmed that  he  supplied the responses  and  information  submitted  on  his  benefits \n \n7\n The total amount paid in benefits, as reflected in Resp. Ex. No 1 at 1, is $4,880.00. \n\nSHACKLEFORD- H303578  \n7 \n \napplication  [Resp.  Ex.  No  1  at  1-30]  and offered that  any  inconsistency  between  the \nstatements in the application and those related to his workers’ compensation claim could be \nattributed to the direction or assistance of the staff to whom he explained his situation and \nwho helped him complete the forms. [TR at 59.] \nHe went on to say that when he returned to work on the Monday after injuring his arm, \n“[e]verybody’s talking to me about my arm,” which was notably swollen at the time. [TR at \n68.] Mr. Shackleford opined that in addition to those discussions that day, everyone on the \ncrew was in contact on the job site via Bluetooth headsets and all would have already known \nabout him getting hurt.  \nWitness Teresa Tessman, co-owner of the respondent-employer \nMs. Tessman testified that she handles “everything” regarding business administration, \n“[e]xcept for operations.” [TR at 75.] She stated that she first became aware of the claimant’s \ninjury on May 14\nth\n after co-owner Beau Allen advised her that the claimant was requesting \ninformation on filing a workers’ compensation claim. Ms. Tessman spoke with the claimant \nand directed him to seek appropriate care. She said that he reported hurting his elbow, but \nthat she did not know when the injury occurred until she was told by other members of the \ncrew. [TR at 76.] Ms. Tessman set the date of injury as 1 May 2023. [TR at 77.] She denied \nthat the claimant ever told her that he was injured on 5 May 2023. [TR at 81.] \nOn cross examination, Ms. Tessman testified that even if the claimant had indicated a \ndate of injury as May 1\nst\n, instead of May 5\nth\n, she still would have denied his claim. [TR at 82.] \nShe then stated that B.J. Coburn, another employee, was not present at the hearing because \nhe  was  out working. She  also said that Trevor,  another  employee  whose  name  appears  on \nsome text messages offered as evidence [Resp. Ex. No 1 at 79-81], was not present as a witness \nfor the same reason. [TR at 84-85.] \n\nSHACKLEFORD- H303578  \n8 \n \nMs.  Tessman  then  offered, under  redirect examination, that  Trevor was  not  present  to \ntestify because he was the company’s only driller, and that “[t]aking him off the job puts us \ncompletely out of production for a day. So in the—what he could testify to versus us losing \nthe money for the day was a decision that was made.” [TR at 88.] \nMedical Evidence \nA Saline  Memorial  Hospital  emergency  department  note  reflects  that  the  claimant \npresented on 15 May 2023, with a complaint of right arm/elbow pain that was worsening over \nthe previous two weeks. The record includes the following: \n37-year-old male presents [to] emergency room for complaints of pain in his \nright elbo[w] extending distally down his right forearm. Patient states that he \nis a line worker and was using a heavy metal bar to break up the ground and \nthe bar twisted and got out of balance causing him to twist his elbow. Onset x2 \nweeks.  States  it  is  just  gradually  getting worse, and  he  is  having  difficulty \nusing his arm. \n \n. . . \n \nSudden onset of symptoms, 2 weeks ago, Symptoms are worsening. \n \n[Cl. Ex. No 1 at 1-11.] X-ray findings were negative, and he was discharged with a diagnosis \nof  Lateral  Epicondylitis  or  tennis  elbow,  a  splint/sling  for  his  arm,  and  prescriptions  for \nMedrol and Ketorolac. \n He followed  up  at  a  Concentra  clinic  on  19  May  2023.  The record from  that  visit \nreflects a diagnosis of Right Elbow Tendonitis, more medication(s) being prescribed, orders \nfor  physical  therapy, and work restrictions of “No lifting more than 10 lbs right arm” and \n“May not grip/squeeze/pinch with right upper extremity.” Id. at 12. \n Mr. Shackleford received a referral for physical therapy from Dr. Michael Weber on 3 \nAugust  2023. Id.  at  13. An  MRI  report  dated  28  August  2023  included  the  following \nimpressions: \nLateral epicondylitis, manifested by high-grade intrasubstance tearing of the \ncommon extensor tendon, on a background of severe tendinosis. \n\nSHACKLEFORD- H303578  \n9 \n \n \nLow-grade lateral ulnar collateral ligament sprain. \n \nMild common flexor tendinosis. \n \nLow-grade sprain anterior band ulnar collateral ligament. \n \nMild distal biceps tendinosis. Mild reactive bicipitoradial edema and/or \nbursitis is noted. \n \nMild elbow osteoarthritis. \n \n[Cl. Ex. No 2 at 1.] \n      He   subsequently   underwent   surgical   repair with   Dr.   Brian   Norton for   lateral \nepicondylitis and common extensor tendon tear of the right arm. The operative note, dated 9 \nOctober  2023,  indicated  that  surgery  was  the  best  option  as  conservative  treatment  had \nfailed. [Cl. Ex. No 2 at 2-3.] The  claimant  followed  post-surgically  with  Dr.  Norton,  who \nrestricted him to off-work status for four weeks in a note dated 22 January 2024. [Cl. Ex. No \n1 at 4.] \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the pre-hearing conference, are outlined above. It \nis settled that the Commission, with the benefit of being in the presence of the witness and \nobserving his or her demeanor, determines a witness’ credibility and the appropriate weight \nto accord their statements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 \nS.W.2d 522 (1999).   \nA.   THE CLAIMANT MET HIS BURDEN IN PROVING THAT HE SUFFERED A \nCOMPENSABLE INJURY. \n \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving by a \npreponderance  of  the  evidence  that  he  sustained  a  compensable  injury  as  the  result  of  a \nspecific incident.  Ark.  Code  Ann.  §  11-9-102(4)(E)(i).  A  compensable  injury  must  be \nestablished  by  medical  evidence  supported  by  objective  findings.  Ark.  Code  Ann.  §  11-9-\n\nSHACKLEFORD- H303578  \n10 \n \n102(4)(D).  Objective  medical  findings  are  those  findings  that  cannot  come  under  the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Causation does not need \nto be established by objective findings when the objective medical evidence establishes that \nan injury exists and other nonmedical evidence shows that it is more likely than not that the \ninjury was caused by an incident in the workplace. Bean v. Reynolds Consumer Prods., 2022 \nArk.  App  276,  646  S.W.3d  655,  2022  Ark.  App.  LEXIS  276, citing Wal-Mart  Stores, Inc.  v. \nVanWagner, supra. \nThe claimant alleges that his injury occurred by specific incident. The claimant must \nestablish  four  (4)  factors  by  a  preponderance  of  the  evidence  to  prove  a  specific  incident \ninjury: (1) that the injury arose during the course of employment; (2) that the injury caused \nan  actual  harm  that  required  medical  attention;  (3)  that  objective  findings  support  the \nmedical evidence; and (4) that the injury was caused by a particular incident, identifiable in \ntime and place. See Cossey v. G. A. Thomas Racing Stable, 2009 Ark. App. 666,5, 344 S.W.3d \n684, 689. \nBased on the credible evidence presented, I find that Mr. Shackelford met his burden of \nestablishing that he sustained a compensable injury. The claimant testified credibly that he \nhurt himself while using a rock bar and trying to dig a hole. He made reports to others about \nhis injury and did not work most of the next week because he continued having trouble with \nhis  arm  or  because  of  rain.  Over  the  course  of  that  week  and  through  the  weekend,  his \ncondition continued to worsen, and he did not receive direction from the respondents about \nseeking  care. Mr. Shackleford eventually contacted the company’s owners,  who  provided \nclaim information and directed him to either emergent or urgent care.   \nThe claimant’s medical notes record his report of injuring his arm and elbow while using \na heavy metal bar at work and that the problem worsened over the two weeks preceding his \npresentation for treatment. The note specifically relays, “Time Course: Sudden onset of \n\nSHACKLEFORD- H303578  \n11 \n \nsymptoms, 2 weeks ago, symptoms are worsening.” This is consistent with Mr. Shackleford’s \nversion  of  the  events.  He  was  initially  diagnosed  with  epicondylitis  or  tendonitis.  That \ndiagnosis was later confirmed via an MRI scan which also found a high-grade tendon tear \nand  a  low-grade  ligament  sprain,  in  addition  to  mild  tendinosis  and  arthritis. A  causal \nrelationship may be established between an employment-related incident and a subsequent \nphysical injury based on the evidence that the injury manifested itself within a reasonable \nperiod of time following the incident, so that the injury is logically attributable to the incident, \nwhere there is no other reasonable explanation for the injury. Hall v. Pittman Construction \nCo., 234 Ark. 104, 357 S.W.2d 263 (1962). Mr. Shackleford testified that he had not previously \nmissed work for an arm injury. \nThe respondents denied this claim altogether. They argued that they do not agree with \nthe claimed date of the injury. Ms. Tessman was asked, “can you tell me as far as your \nunderstanding from your investigation as to what the date of the injury was?” and she \nanswered, “Yes. May 1\nst\n.” She was later asked if the claim would have been denied even if \nthe claimant alleged, consistent with her own investigation’s findings, a date of injury of May \n1\nst\n instead  of  May  5\nth\n. She responded that she would “absolutely” have  denied  it anyway \nbecause, somewhat quizzically, she did not “think it happened.”  \nAs discussed during Ms. Tessman’s examination,\n8\n an earlier scheduled hearing date on \nthis  matter  was  continued,  at  least  in  part,  due  to  the  unexpected  unavailability  of the \nrespondent’s employee/intended witness named Trevor. When asked about Trevor’s absence, \nin light of the earlier continuance requested on that basis, she said that Trevor was working \nand, thus, not made available to testify. She explained that Trevor was the company’s only \ndriller  and that without  him  on the  job, they would  have  lost  money for  the  day. She  also \n \n8\n TR at 87-90. \n\nSHACKLEFORD- H303578  \n12 \n \nsuggested that he was not made available because “he was not there when it happened” \n(emphasis added). The “it” here appears to be the same “it” that she thought did not happen. \nHaving  observed  her  demeanor throughout  her  testimony  and  specifically  regarding \nTrevor’s absence and  considering  her poorly  supported,  if  not  inconsistent,  position  on  the \nclaimant’s injury either happening on a date other than he recalled  or supposedly not \nhappening at all, I find her credibility to be very suspect.  \nStill,  I  will  address  the  possible  discrepancy  regarding  the  actual  date  of  the  injury, \nbecause I do not find some question between whether Mr. Shackleford took up the rock bar \non May  the  1\nst\n or  May  the  5\nth\n to  be  fatal  to  his  claim for  a  compensable  injury  by  specific \nincident.  While  the  respondents  attempted  towards  the  end  of  the  hearing to offer  an \nalternative argument towards the claimant not meeting his burden for the injury occurring \nvia gradual onset, this claim was not brought as a gradual onset injury. In Pulaski County \nSpecial  Sch.  Dist.  V.  Laster,  2015  Ark.  App.  206, *6; 465  S.W.3d  421, 425; 2015  Ark.  App. \nLEXIS 262, ***7 our Court of Appeals helpfully explained: \nThis case was tried as an accidental injury case, not a gradual-onset one. \nSo, [Claimant] had the burden to prove, by a preponderance of the evidence, \nthat he sustained an \"accidental injury . . . arising out of and in the course of \nemployment[.]\" Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012). \"An injury is \n'accidental' only if it is caused by a specific incident and is identifiable by time \nand place of occurrence[.]\" Ark. Code Ann. § 11-9-102(4)(A)(i). In Edens v. \nSuperior Marble & Glass, our supreme court held that \"identifiable by time \nand place\" meant subject to identification and did not require the claimant to \nspecify the exact time of the occurrence. 346 Ark. 487, 492, 58 S.W.3d 369, 373 \n(2001). A claimant's inability to specify the exact date and the precise time of \nthe accidental injury is a credibility issue that the Commission may \nweigh. Pafford Med. Billing Servs., Inc. v. Smith, 2011 Ark. App. 180, 381 \nS.W.3d 921. Still, [Claimant] must show a causal relationship between his \nemployment and the injury. Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. \n167, 72 S.W.3d 889 (2002). Whether the causal connection exists is a fact \nquestion the Commission settles. Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, \n59, 968 S.W.2d 645, 650 (1998). \n \n\nSHACKLEFORD- H303578  \n13 \n \nId. Whether the claimant was working with a rock bar on a Monday or a Friday, I find him \nto be credible in relaying that that is the incident that caused his injury, and he reported the \nsame  to  medical  providers  at  the  time  he  first  sought  treatment  for  his injury.  No  other \npossible intervening incidents were offered into the record as an alternative to the claimant’s \nversion of events, even if his recollection of the particular day may have been off. And the \navailable  medical  evidence  supports  his  report  of  a  workplace  injury  with  a  rock  bar  and \nsubsequent treatment efforts related to the same. His explanation of the cause of his injury \nand  the objective findings  support  resolving  his  claim for  a  compensable  injury by  specific \nincident in  his  favor. In Edens, supra,  the  Arkansas  Supreme  Court  made  clear  that  the \nstatute  only  requires  that  a  claimant  prove  that  the  occurrence  of  the  injury  is  capable  of \nbeing identified. \nB.   THE CLAIMANT MET HIS BURDEN IN PROVING THAT HE IS ENTITLED TO \nTEMPORARY TOTAL DISABILITY BENEFITS. \n \nThe  claimant  has  proven  a  compensable  scheduled  injury  in  this  claim. He  is,  thus, \nentitled  to  temporary  total  disability  (TTD)  benefits  during  his  healing  period  or  until  he \nreturns  to  work,  whichever  happens  first.  Ark.  Code  Ann.  §  11-9-521.  The  claimant  must \nprove his entitlement to TTD benefits by a preponderance of the evidence. Ark. Code Ann. § \n11-9-705(a)(3). \nIt is not disputed that the claimant has not worked since his 15 May 2023 visit to the \nemergency department, the date on which they contend his TTD benefits should begin. He \ncontinued  to  seek  treatment  at  various  times  between  his  initial  presentation  to  the \nemergency department and the hearing on this claim. In fact, at the time of the hearing, the \nclaimant was under a physician’s post-operative order, dated 22 January 2024, to remain off \nwork for four (4) weeks. The preponderance of the evidence establishes that he has not yet \n\nSHACKLEFORD- H303578  \n14 \n \nreached  the  end  of  his  healing  period. Mr.  Shackleford  has,  therefore,  proven  that  he  is \nentitled to TTD benefits from 15 May 2023 to a date yet to be determined.  \nIt  is  also  not  disputed,  however,  that  the  claimant  received  unemployment  benefits \nduring some of this time. “[I]f a claim for temporary total disability is controverted and later \ndetermined  to  be  compensable,  temporary  total  disability  shall  be  payable  to an  injured \nemployee with respect to any week for which the injured employee receives unemployment \nbenefits but only to the extent that the temporary total disability otherwise payable exceeds \nthe unemployment benefits.”  Ark. Code Ann. § 11-9-506(b). The  respondents  are, thus, \nentitled to a credit against the TTD benefit amount owed for those weeks that the claimant \nreceived unemployment benefits in an amount equal to the weekly unemployment benefit he \nreceived. \nC.   THE CLAIMANT IS ENTITLED TO REASONABLE AND NECESSARY MEDICAL \nBENEFITS ASSOCIATED WITH HIS COMPENSABLE INJURY. \n \nEmployers   are   responsible   for   providing medical   services   which   are   reasonably \nnecessary in connection with compensable injuries. Ark. Code Ann. 11-9-508(a). Employees \nhave  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  medical  treatment  is \nreasonably necessary. See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 \n(2004). The  Commission  must  resolve,  at  times,  conflicting  medical  evidence.  See Cedar \nChemical  Co.  v.  Knight,  99  Ark.  App.  162,  258  S.W.3d  394  (2007).  Here,  however,  I  am \npresented only with the medical evidence offered by the claimant which evidences treatment \nfrom 15 May 2023 and on, with an operative noted dated 9 October 2023 that is consistent \nwith  the  diagnosis  reported  in  his  other  medical  notes  and  which  states, “[h]e has failed \nconservative treatment. I felt the best treatment option would be to proceed [with surgical \nrepair].” I  may  not  arbitrarily disregard medical  evidence.  See Patchell,  supra. The  record \n\nSHACKLEFORD- H303578  \n15 \n \ndoes  not  contain  any  evidence  suggesting  that  the  care  sought  by  the  claimant  has  been \nunreasonable or unnecessary.  \nAccordingly,  I  find  that  the  claimant  is  entitled  to  payment  and/or  repayment  for  the \nmedical services provided in the diagnosis and treatment of his compensable injury and for \nthe allowable costs associated with the same. \nD.   THE CLAIMANT IS ENTITLED TO A CONTROVERTED ATTORNEY’S FEE. \n \nThe  respondents  controverted  this  claim  in  its  entirety.  The  claimant  is,  accordingly, \nentitled to a controverted attorney’s fee consistent with the indemnity benefits associated \nwith these findings and Ark. Code Ann. § 11-9-715. \nV.  ORDER \n     The respondents are directed to pay all benefits awarded under these Findings of Fact and \nConclusions of Law. The accrued sums are owed in a lump sum without discount, and this \naward shall earn interest at the legal rate until paid. Ark. Code Ann. § 11-9-809. \n     The claimant’s attorney is entitled to a fee of twenty-five (25%) percent of the indemnity \nbenefits awarded, with one-half (1/2) to be paid by the claimant and one-half (1/2) to be paid \nby the respondents. Ark. Code Ann. § 11-9-715. \nIT IS SO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":29868,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H303578 BRANDON G. SHACKLEFORD, EMPLOYEE CLAIMANT ALLEN FAMILY ENTERPRISES, LLC, (AFE, LLC,) EMPLOYER RESPONDENT NATIONAL INSURANCE COMPANY/SEDGEWICK CLAIMS MANAGEMENT SERCVICES, INC, CARRIER/TPA RESPONDENT OPINION FILED 3 MAY 2024 Heard before Arkansas ...","outcome":"granted","outcomeKeywords":["granted:7"],"injuryKeywords":["sprain"],"fetchedAt":"2026-05-19T22:53:49.418Z"},{"id":"alj-H205230-2024-05-02","awccNumber":"H205230","decisionDate":"2024-05-02","decisionYear":2024,"opinionType":"alj","claimantName":"Samantha Ballard","employerName":null,"title":"BALLARD VS. UNITED PARCEL SERVICE (UPS), INC.AWCC# H205230May 2, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BALLARD_SAMANTHA_H205230_20240502.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BALLARD_SAMANTHA_H205230_20240502.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205230 \n \nSAMANTHA R. BALLARD, \nEMPLOYEE                                                                                                              CLAIMANT \n \nUNITED PARCEL SERVICE (UPS), INC., \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nLIBERTY MUTUAL INS. CORP./ \nLIBERTY MUTUAL GROUP \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER FILED MAY 2, 2024, DENYING RESPONDENTS’ MOTION \nTO DISMISS WITH OR WITHOUT PREJUDICE \nAND \nORDER FILED MAY 2, 2024, AMENDING MARCH 12, 2024, ORDER TO COMPEL \nDISCOVERY TO EXTEND THE DEADLINE BY WHICH THE CLAIMANT SHALL \nRESPOND TO THE RESPONDENTS’ OUTSTANDING DISCOVERY REQUESTS  \n \nHearing conducted on Tuesday, April 30, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Samantha R. Ballard, pro se, Bradford, White County, Arkansas, appeared at \nthe hearing. \n \nThe respondents were represented by the Honorable David C. Jones, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n A  hearing was  conducted  on Tuesday, April  30,  2024, to  determine  whether this  claim \nshould be dismissed without prejudice for lack of prosecution pursuant to Ark. Code Ann. § 11-9-\n702(a)(4)  (2024 Lexis Replacement)  and  Commission Rule  099.13  (2024 Lexis Replacement), \nand/or with prejudice for the claimant’s alleged unjustified refusal to respond to the respondents’ \noutstanding discovery requests. The record herein consists of the reporter’s hearing transcript, as \nwell as any and all exhibits contained therein and attached thereto.  \n\nSamantha R. Ballard, AWCC No. 205230 \n \n2 \n \n As even a cursory review of the record clearly reveals, this claim has been the subject of \nsome confusion as to exactly when the claimant may or may not have been represented by counsel; \nsome apparent “good faith” miscommunication between the claimant and a couple of attorneys \nwith whom she had visited about representing her in this claim; as well as multiple MTDs and, \nfinally, some degree of apparent, understandable misunderstanding on the pro se claimant’s part \nconcerning responding to the respondents’ routine, fair, and reasonable discovery requests, which \nthey had propounded at least as early as on or about August 17, 2022. The alleged date of injury \nis June 8, 2022. (See generally, Respondents’ Exhibit 1; see, more specifically, RX1 at 13-22; 25-\n61). \n The respondents filed their initial thorough, well-written MTD and brief in support thereof \nwith the Commission on July 13, 2023, requesting this claim be dismissed without prejudice for \nlack  of  prosecution (RX1  at  25-38). At  that  time because  of  the  ongoing  issues  concerning \ndiscovery and related matters, the ALJ did not schedule a hearing on the respondents’ initial MTD, \nbut held a  decision  on it in abeyance to provide the parties’ time to clarify and/or resolve the \naforementioned  outstanding  issues.  The  ALJ returned the file back to the Commission’s open \nGeneral Files (RX1).  \n On or about February 14, 2024, the respondents filed a renewed MTD without prejudice, \nmotion to compel discovery, and brief in support of both motions. (RX1 at 43-58). After having \ngiven the parties additional time to respond to one another’s legal and factual arguments, the ALJ \nsigned and filed an order to compel discovery signed March 12, 2024. (RX1 at 59-61; 62-65). By \nthat  time  it  had  become  apparent  the pro  se claimant had  not – at  least as  of that  time period –  \ntaken the appropriate steps to formally and legally retain her attorney, the Honorable Gary Davis, \nof the  Davis Law  Firm,  in Little Rock, Pulaski County, Arkansas. Much to his credit, Attorney \n\nSamantha R. Ballard, AWCC No. 205230 \n \n3 \n \nDavis had been diligently attempting to contact the claimant for some time despite the fact he did \nnot  formally  represent  her. Attorney  Davis  explained during  the  course  of  a  prehearing \nteleconference the  claimant  failed  and/or  refused  to  respond  to  any  and  all  of  his  attempts  to \ncommunicate  with  her.  Of  course,  the  respondents  had  been  forwarding  any  and  all  of  their \ncommunications, discovery requests,  and  other  relevant  documents  to  the  claimant  at  her  last \nknown address on record with the Commission, as well as sending “courtesy copies” of any and \nall such documents to Attorney Davis. (RX1).  \n Following the respondents’ attorneys’ renewed request for a hearing on his MTD, a hearing \nwas scheduled on the respondents’ renewed motion and any and all related issues related thereto, \nwhich hearing was held on Tuesday, April 30, 2024. The Commission mailed the hearing notice \nto  the  claimant  pursuant  to  the  applicable  Arkansas  law,  which  she  received  on  April  8,  2024. \n(Commission Exhibit 1).  \n The Tuesday, April 30, 2024, hearing was scheduled to begin at 11 a.m.; however, as is the \nALJ’s standard practice he waited a period of time after the scheduled time to ensure the claimant \nhad plenty of time to appear at the hearing. At approximately 11:13 a.m., the claimant did in fact \nappear at the hearing. She apologized for being late, explaining she had some difficulty locating \nthe  Commission  offices.  The  ALJ  provided  the  claimant  and  the  respondents’  attorney  an \nadditional period of time to visit prior to hearing arguments and taking testimony at the hearing. \n(Hearing Transcript).  \n Thereafter, at approximately 11:35 a.m., the hearing commenced on the record; the ALJ \nadministered the oath to the claimant; the respondents’ attorney presented his MTD, requesting \nthat the claim be dismissed with or without prejudice for the reasons stated in his motion and brief \nin support thereof, or that the ALJ hold a ruling on the motion in abeyance pending the claimant’s \n\nSamantha R. Ballard, AWCC No. 205230 \n \n4 \n \nfull  compliance  with  the  respondents’  discovery  requests,  and  as  ordered  in  the  ALJ’s \naforementioned  order  to  compel  discovery.  The  respondents’  attorney  further  explained  his \nreasons and rationale for these requests in his oral presentation of the MTD and related matters. \nThe respondents’ attorney further requested that since the claimant still had not complied with the \nALJ’s order to compel, regardless of what decision the ALJ made on the respondents’ MTD, the \nALJ should amend his prior order to compel, and ensure the claimant’s compliance with the order \nby a date certain. (Hearing Transcript). \n The claimant apologized for her lack of understanding of the process. She testified it was \nher  understanding she  was  represented  by  counsel,  but  readily  and  honestly  conceded  she  may \nhave been mistaken in this regard. She testified she believed she had signed and dated a medical \nrecords release and provided it to Attorney Davis’s office, but she was not totally sure about this. \nThe claimant also testified she believed she had provided all relevant medical records to Attorney \nDavis’s office but, again, she freely and candidly admitted she could not be certain about this. The \nclaimant    testified    she    had    not    yet    answered  the  respondents’  written  discovery \nrequests/interrogatories because she had some work-related questions and concerns for which she \nwanted/needed legal advice, and she did not really understand all of the questions, how to respond \nto them, etc. (Hearing Transcript).  \n At the conclusion of the hearing the claimant testified she would like to speak to one of the \nCommission’s legal advisors immediately following the hearing. (She did so immediately after the \nhearing). She also testified she wanted to and intended to retain Attorney Gary Davis as her counsel \nin this matter, and that she intended to meet with him in person at his office immediately following \nher meeting with a Commission legal advisor. (Hearing Transcript). (Later in the day following \nthe  April  30,  2024,  hearing, Mr. Davis advised both the ALJ and the respondents’ attorney via \n\nSamantha R. Ballard, AWCC No. 205230 \n \n5 \n \nemail that he had in fact agreed to represent the claimant; he formally entered his appearance in \nthe claim; and he made a hearing request on specific issues.)       \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the respondents’ \nrenewed MTD with or without prejudice, as well as his oral request at the hearing that the ALJ \namend  the  order  to  compel  discovery  in  order  to  ensure  the  claimant’s  timely  compliance \ntherewith.  \n           Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing, contained in the record, and known to the ALJ reveals the \nclaimant has now hired an attorney and requested a hearing on specific issues. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. The pro  se claimant  appeared  personally  at  the  hearing,  and  provided  reasonable, \ncredible responses to both the respondents’ attorney’s and the ALJ’s questions. She \nexplained  why  and sincerely  apologized  for  having  been  unresponsive  to  both  the \nrespondents and the Commission concerning her claim which, in essence, she attributed \nto her confusion as to whether she was in fact represented by counsel, and her lack of \na total understanding of the workers’ compensation process, and the  protections  for \nclaimants who file claims.  \n \n3. In addition, the claimant expressed the desire to prosecute her claim; has retained an \nattorney to assist her in doing so; and her attorney has requested a hearing on specific \nissues. Therefore, the respondents’ renewed MTD without or with prejudice hereby is \ndenied and dismissed. \n \n\nSamantha R. Ballard, AWCC No. 205230 \n \n6 \n \n4. Despite respondents’ counsel’s diligence, persistence, and patience, the claimant has to \ndate failed and/or refused to timely respond to the respondents’ routine, reasonable \ndiscovery requests. Moreover, while the claimant has credibly explained to the ALJ’s \nsatisfaction her subjective reasons therefore, still, she has to date failed and/or refused \nto comply with the Commission’s order to compel discovery filed March 12, 2024. \n \n5. Therefore, I herein incorporate by reference the ALJ’s March 12, 2024, order to compel \ndiscovery  as  set  forth  word-for-word  herein.  (Please  find  attached  as “Exhibit  A” to \nthis opinion and order a file-marked copy of the previously executed and filed March \n12, 2024, order to compel discovery.) \n \n6. The  immediately  aforementioned  and  attached  order  to  compel  discovery hereby  is \namended only to the extent the claimant has 30 days from the date of the filing of this \nopinion – or until Monday, June 3, 2024 – to provide the respondents’ attorney with a \nsigned medical release, as well as her full and complete responses to the respondents’ \npreviously  propounded  interrogatories  and  requests  for  production  of documents. \nFailure to do so may result in sanctions and/or any and all other appropriate relief to \nwhich  the  respondents’  may  be  entitled  pursuant  to  the  Arkansas  Workers’ \nCompensation Act (the Act).  \n \n7. As  always,  both  parties  shall  cooperate  with  one  another  in  both  the discovery  and \nhearing process in accordance with all applicable Arkansas laws, rules, and regulations. \n \n8. The respondents shall pay the court reporter’s invoice within twenty (20) days of their \nreceipt hereof. \n \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":12723,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205230 SAMANTHA R. BALLARD, EMPLOYEE CLAIMANT UNITED PARCEL SERVICE (UPS), INC., EMPLOYER RESPONDENT LIBERTY MUTUAL INS. CORP./ LIBERTY MUTUAL GROUP INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED MAY 2, 2024, DENYING RESPONDENTS’ MOTION TO DISMIS...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:53:38.894Z"},{"id":"alj-H303915-2024-05-02","awccNumber":"H303915","decisionDate":"2024-05-02","decisionYear":2024,"opinionType":"alj","claimantName":"Joey Davis","employerName":null,"title":"DAVIS VS. ARKANSAS TECH UNIVERSITYAWCC# H303915 & H305142May 2, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DAVIS_JOEY_H303915H305142_20240502.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVIS_JOEY_H303915H305142_20240502.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H303915 & H305142 \nJOEY DAVIS, EMPLOYEE CLAIMANT \n \nARKANSAS TECH UNIVERSITY, EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER RESPONDENT \n \n \n \n OPINION FILED MAY 2, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope \nCounty, Arkansas. \n \nClaimant is not represented and appears pro se. \n \nRespondents represented by CHARLES H. MCLEMORE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On March 20, 2024, the above captioned claim came on for a hearing at Russellville, Arkansas. \nA pre-hearing conference was conducted on February 22, 2024, and a pre-hearing order was filed on \nthat same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.    The employee/employer/carrier relationship existed on June 7, 2023, and July 27, 2023. \n            3.    Claimant’s average weekly wages are $451.97 and $450.07. \n            4.   The respondents have controverted the claim in its entirety. \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n\nDavis-H303915 & H305142 \n2 \n \n            1.     Whether claimant sustained a compensable injury to his right upper extremity on June 7, \n2023. \n            2.     Whether claimant sustained a compensable injury to his left upper extremity on July 27. \n2023. \n            3.     If compensable, whether claimant is entitled to medical treatment. \n             4.    If compensable, whether claimant is entitled to temporary total disability benefits. \n All other issues are reserved by the parties. \n The claimant contends that “On June 7, 2023 [H303915] right hand sore while cleaning stove, \nnext day swollen, pain moved up arm, given braces, moved to shoulder, told carpel tunnel then tendon \nupper arm. On July 7, 2023 [H305142] direct result of brace on right hand sharp pains in left elbow – \ntennis elbow.” \n The respondents contend that “The claimant reported on June 15, 2023, having an injury to \nhis right hand on June 7, 2023 [H303915] and medical treatment was initially provided by respondent \nfor the claimant. The claimant subsequently reported on August 2, 2023, having an injury to his left \nhand  on  July  27,  2023  [H305142]  after  which  respondent  provided  claimant  with  initial  medical \ntreatment. The claimant has been examined by physicians and provided an EMG nerve conduction \nstudy, which was normal. When the claimant was seen by Dr. Mark Tait, orthopedic hand surgeon, \non August 16, 2023, the claimant was released at maximum medical improvement with 0% permanent \nimpairment  and  released  to  full  duty  with  no  restrictions.  Respondent  contends  that  the  claimant \ncannot meet his burden of proving that he sustained a compensable specific incident injury or gradual \nonset injury arising out of and in the course of his employment caused by both rapid and repetitive \nmotion to either hand on either June 7, 2023, or July 27, 2023. Respondent further contends that the \nclaimant cannot establish that his alleged injury is the major cause of disability or need for treatment. \n\nDavis-H303915 & H305142 \n3 \n \nRespondent contends that if the claimant’s claim was compensable, the respondent cannot be \nresponsible for disability, medical, or other benefits prior to receipt of the employee’s report of injury. \nThe respondent reserves the right to raise additional contentions, or to modify those stated herein, \npending the completion of discovery.”  \n From a review of the entire record including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nFebruary 22, 2024 and contained in a pre-hearing order filed that same date are hereby accepted as \nfact. \n 2.   Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  suffered  a \ncompensable injury to his right upper extremity on July 7, 2023. \n 3.    Claimant has failed to prove that he suffered a gradual injury to his left upper extremity \ndue  to  rapid  repetitive  motion  on  or  about  July  27,  2023,  or  as  a natural  consequence  from  a \ncompensable injury to his right upper extremity.  \n \n FACTUAL BACKGROUND \n Claimant maintained he had two separate injuries, one to his right upper extremity which led \nto an injury to his left upper extremity due to overuse. These two cases were consolidated for trial, as \nthere were overlapping factual issues and medical records that mentioned both injuries. The parties \nagreed to this consolidation in the prehearing conference (Commission X 1).   \n\nDavis-H303915 & H305142 \n \n4 \n \n \n There  was  some  testimony  regarding  when  claimant  reported  the  injury;  however, claimant \ndid not seek reimbursement for the one doctor’s visit he had before a report was made,  nor  did \nrespondent raise a delayed report as a defense to this matter. As such, I did not find it necessary to \ndetermine if claimant was entitled to any benefits prior to June 15, 2023, the date of the Employee’s \nReport of Injury Form (R.NMX.5) \nHEARING TESTIMONY \n \n Claimant testified that he first injured his right hand while working as a custodian at Arkansas \nTech. On June 7, 2023, he was cleaning a stove in an apartment, and something did not feel right in \nhis hand. Claimant noticed the next day the hand was swollen, but he already had a doctor’s \nappointment for high blood pressure coming up, so he did not immediately seek medical treatment. \nWhen he went to his regular doctor’s appointment on June 15, 2023, he mentioned his hand and was \ntold that it might be carpal tunnel. When claimant returned to work that day, he told his supervisor, \nStacey  Cox,  that  he  had  hurt  his  hand,  after  which  he  was  referred  to  the Conservative Care \nOccupational Clinic on June 16, 2023. Claimant was seen by APRN Dalana Rice and was given a brace \nto wear on his right hand; claimant stated that he was told to wear the brace constantly except when \nhe was in the shower.  \n Regarding his claim for his left hand on July 27, 2023, claimant said that he was using his left \narm more as he was cleaning the apartments and his elbow and wrist started popping and hurting in \nthat  left  arm.  He  returned  to  see APRN Dalana  Rice  and  was  given  a  brace  for  his  left  arm,  an \nappointment was made for claimant to be evaluated for carpal tunnel, and that test was performed on \nJuly 31, 2023, by Dr. Miles Johnson.  \n Claimant said he was referred to physical therapy but was having to use his “comp time” at \nwork to go to doctor’s visits for physical therapy. He continued to use both arms at work until August \n\nDavis-H303915 & H305142 \n \n5 \n \n \n2, 2023, at  which  time  he  was  placed  on  restrictions. There  was  apparently  a  problem  in \ncommunicating the restrictions to claimant’s supervisor because it was a few days before his lifting \nrestrictions  were  recognized  by  respondent. Claimant  said  he  was  off  work  for  eight  working  days \nbecause there was no light duty for him to do.  Claimant was then seen by Dr. Mark Tait. Following \nthat visit on August 16, 2023, respondent determined it was going to deny the claim as of August 24, \n2023. Claimant  testified  he  had  no additional  medical  treatment  since  the  claim  was  denied by \nrespondent, as he could not afford the physical therapy out of his pocket. Claimant returned to work \nfor respondents until September 15, 2023, at which time the work without restrictions became too \nmuch for him and he left his employment. Claimant requested temporary total disability benefits from \nSeptember 15 through January 1, 2024. \n On cross-examination, claimant said that it was a repetitive injury that happened over a period \nof time, but that he was not having any problems with his right hand before June 7, 2023. He had \npreviously been treated for an infection in that hand and he had an injury to the middle finger of his \nright  hand  when  it  was  stuck  in  a  shackle  while  working  for  Tyson.  Claimant  explained  that  some \nmedical records from 2019 which mentioned bilateral hand swelling was due to blood pressure issues. \nClaimant said his issues were different after June 7, 2023, because he believed that he had soft tissue \ndamage from repetitive  use  at  Arkansas  Tech  and  was  not  properly  trained  on  safety  regarding \nrepetitive motion.  \n Claimant  was  asked  about  the  entry  on  the  June  15, 2023, record  from  Kirkland  Family \nMedical Center (R.X.1 page 14) which stated “patient c/o right hand pain not better, reports he spoke \nto Brittney Calvert, PA about this last visit. He rates the pan 5/10 and states it gets worse with use, he \nis having numbness in that now. Has nerve conduction studies planned with neurologist next month.”  \nClaimant  said  the  previous  complaint  was  about  the  cyst  and  the  nerve  conduction  study  was  for \n\nDavis-H303915 & H305142 \n \n6 \n \n \nneuropathy in his feet. Claimant said that he had a nerve conduction study performed by Dr. Miles \nJohnson in Fort Smith on July 31, 2023, but did not know why it was done on both hands. As he had \ntestified under  direct  examination,  claimant stated that  the  appointment  with  Kirkland  on  June  15, \n2023, was one that was regularly scheduled for his blood pressure, and he asked about his hand while \nhe was there because he thought it was probably just sore. He did not know there was a problem with \nhis hand at that time other than the soreness. After the nerve conduction study, claimant was sent to \nDr.  Mark  Tait. Claimant was not impressed with Dr. Tait’s examination, stating “He did not seem \ninterested in anything. He tried to diagnose a soft tissue pain with an x-ray machine.”   Dr. Tait had \nordered  a  course  of  physical  therapy  for  claimant  after  the  visit with Dr.  Tait,  the  respondent \ndetermined that it was going to controvert this claim, and claimant was not able to continue with his \nphysical therapy treatment because Dr. Tait released claimant with no restrictions on August 16, 2023.  \n After claimant rested, Stacy Cox, who was claimant’s direct supervisor, testified as to claimant’s \njob duties consisting of scrubbing showers, vacuuming, mopping floors, dusting, cleaning glass in the \ndoorways and entrances. She said that there were a variety of different job duties, but they were all \nrelated to cleaning. She recounted how she learned that claimant stated he hurt himself on the job. \nMs. Cox testified to the production of some of the records that were offered by respondents as its \nExhibit 2 at the hearing.  \n On cross-examination, Ms. Cox explained how employees were instructed to make workers’ \ncompensation claims.  Ms. Cox did not recall a luncheon in which claimant had his hand wrapped in \nearly June 2023.  \n Respondents next called Julie Ennis who is the custodial director and the supervisor of Stacy \nCox. She said those cleaning an apartment were expected to do two or three units a day, but if one \nwas not finished at the end of the workday, it would be done the next day. Claimant identified portions \n\nDavis-H303915 & H305142 \n \n7 \n \n \nof Respondent’s Exhibit #2, including one that she filled out when she spoke with claimant on June \n15, 2023. Ms. Ennis testified that June 15, 2023, was the date that she first knew that he was making \na workers’ compensation claim. Ms. Ennis was not positive if she handed the Employer’s Report of \nInjury Form to claimant or if Stacey Cox gave it to him. \n In rebuttal, claimant testified that when he got back from his June 15, 2023, appointment with \nKirkland, he told Stacey Cox that he had carpal tunnel and needed to find out how to file a workers’ \ncompensation  claim. Claimant  denies  that  he  was  handed  the  document  that  Ms.  Ennis  identified, \nstating that he was given one by “the safety guy.”   \n After claimant rested, the court had the following exchange with claimant: \nQ. (By the Court) In your claim, the way that we wrote it up in the prehearing \norder, you were alleging and your testimony was that you were working on a \nstove  on  June 7  and you felt  something  happen  to  your hand,  but  part  of \nyour testimony and the form you filled out on June 15, this is Respondent’s \n2 Document  5,  says  that  it  is  repetitive  work,  repetitive  cleaning  and \nscrubbing. \nYou may not be  aware of this, but there is a significance in workers’ \ncompensation for either a gradual onset injury or a specific incident injury. I \nneed to know what you are claiming. Are you claiming a specific incident or \nare you claiming a gradual onset? \n \nA. (By Mr. Davis) I got that word from the doctor they sent me to. That’s \nhow I know that word. \n \nQ. (The Court) I am just asking you what your claim is. Are you claiming a \nspecific  incident  in  cleaning  the  stove  on  June  7 regarding  your  right  arm \ninjury or are you claiming as it says in the form on page 5 a repetitive injury, \nwhich would be a gradual onset? I am not telling you what your claim is. I \nam asking you what your claim is. \n \nA. (Mr. Davis) I am claiming a specific injury. \n \nQ. (The Court) Okay. That is for the June 7 injury. Now are you claiming – \non your left hand or are you claiming a specific incident or are you claiming \na gradual onset on it? \n \nA. (Mr. Davis) Gradual. \n\nDavis-H303915 & H305142 \n \n8 \n \n \n \nQ. (The Court) Gradual on the left? \nA. (Mr. Davis) Yes. \n \nREVIEW OF THE EXHIBITS \n \n Claimant did not introduce any medical records. Prior to the hearing, he had been advised as \nto the records that respondents’ counsel was going to offer into evidence, and he relied upon those \nduring his testimony. Claimant objected to the first ten pages of the respondents’ medical records as \nbeing irrelevant. I overruled the objection because the records related to the same part of claimant’s \nbody that he maintains is now injured as a result of work-related activity. However, while relevant, I \nfind those records were related to a finger injury from 2011 (R.X.1 pages 1-3) and provide no useful \ninformation for the determination of this claim. \n The records from January 27, 2019, from St. Mary’s Hospital involved pain in claimant’s right \nwrist. The next day, he followed up with his healthcare provider at Kirkland Family Medical Clinic \nwith this entry at the history of present illness: \n“Thirty-year-old  male  presents  unaccompanied  today  for  a  follow  up  after \ngoing  to  the emergency  room  at  SMRMC  on  Saturday  due  to  bilateral  hand \nswelling. He  states  he  woke  up  with  his  hands swelling. Denies  any  recent \ninjuries. Denies any swelling to lower extremities. He was given Naproxen 500 \nmg bid and states his hands are better, reports that swelling has subsided, has \nbetter strength and grip. He was put on light duty but patient is here to get a \nwork  release  so  he  can return  to  work  without  restrictions,  no  other \ncomplaints.”   \n \n There were no other entries regarding this incident (R.X. pages 4-5). \n On January 16, 2023, claimant saw PA Brittany Calvert at Kirkland for “follow up with weight \nloss and knot right hand...has  knot  on  right palm  and  right  hand  locks  up at  times  when  gripping \nthings...”  PA Calvert examined claimant’s right hand, and she reported “no tenderness, no warmth, \nor objective synovitis and trigger finger.”  For the pain in his right hand, claimant received an injection \n\nDavis-H303915 & H305142 \n \n9 \n \n \nof Ketorolac and was told to return for follow up in four weeks, or sooner if the symptoms worsened \nor new symptoms arose. (R.X. pages 6-10).  \n Claimant returned to Kirkland on June 16, 2023, and was seen by APRN Tanna Shockley. He \nsaid that the pain in his right hand was not better, and that he had spoken to Brittany Calvert about \nthis on his last visit (which was in January 2023, as recounted in the above paragraph). Claimant said \nthe  pain  got  worse  with  use  and he was  having  numbness  in  that  hand  now.    There  was  a  nerve \nconduction study planned with a neurologist in July 2023. APRN Shockley concluded that claimant \nwas suffering from carpal tunnel syndrome of the right wrist.  She had claimant wear a splint on his \nright arm and stated he should proceed with the nerve conduction studies with the neurologist next \nmonth. (R.X. pages 11-15) \n Claimant returned to work and reported a work-related injury after seeing APRN Shockley on \nJune 15, 2023; the next day he was sent to Conservative Care Occupational Health, a medical provider \nselected by respondent.   On June 16, 2023, claimant described the accident as follows:  \n“Patient states on 6-7-23 his right hand was sore while cleaning a stove. He \nsaid  the  next  day  it  was  swollen.  He  went  to  see  PCP  yesterday  and  was \ndiagnosed with carpal tunnel. Ordered brace. Has had tingling in hands since. \nTingling is in the last two fingers. Swelling was in base of hand next to wrist. \nUnable to grab anything small. Taking Ibuprofen and wrapped with an Ace \nbandage. Did help with swelling and pain.”   \n \n APRN Dalana Rice did an examination of claimant’s right hand and noted that there was no \nswelling or bruising present, nor an abrasion or erythema. She noted some subjective findings such as \ndecreased grip strength and pincher grasp as well as noting that claimant reported that palpation in \nthe fourth metacarpal nodule was painful. Claimant also reported pain to palpation over the medial \nhand’s dorsal surface as well as pain with motion in his hand.  APRN Rice disagreed that claimant had \ncarpal tunnel syndrome, as the numbness was in his fourth and fifth fingers which would be consistent \n\nDavis-H303915 & H305142 \n \n10 \n \n \nwith cubital tunnel syndrome. She suggested the “usual course of treatment” which is splinting along \nwith ice and NSAIDs. APRN Rice determined that the splint was appropriate for the symptoms, told \nhim to take naproxen every twelve hours, and apply ice for fifteen minutes at least twice a day. There \nwere no work restrictions given at that time, but she did recommend that claimant use his left hand \nfor repetitive motion duties. Claimant was released to regular duty and was told to return in two weeks. \n(R.X. pages 16-22) \n Claimant returned to Conservative Care Occupational Health on June 30, 2023, and again saw \nAPRN Rice. The patient’s description of the accident was copied from the previous medical record, \nand claimant’s complaint was that his right hand was tingling, numb, and sore. APRN Rice  stated, \n(and I believe inaccurately) that the problem began on June 15, 2023. Her entry as to the examination \nof the right hand is largely identical to the previous entry, although she did add that claimant reported \npain with gripping and repeated tingling in the fourth and fifth fingers. She recommended that the \ncurrent treatment measures continue, and that claimant’s recommended work status remain at regular \nduty. (R.X. pages 23-25) \n Claimant returned to Conservative Care Occupational Health on July 7, 2023, this time seeing \nAPRN Cynthia Johnson. Her report did not contain any objective findings, nor did she restrict his \nactivity at work. She referred him for a nerve conduction velocity study. (R.X. pages 28-33) \n Claimant returned to his primary care provider on July 31, 2023, where he saw PA-C Brittney \nCalvert, and at that point he is complaining of problems with his left elbow and thumb. PA-C Calvert \nsuspected  that  the  problem  in  the  left  hand  was  secondary  to  overuse  but  there  were  no  objective \nfindings in her report. She noted that claimant was due for a nerve conduction study on his right wrist \nlater that day (R.X. pages 34-38).  \n Claimant was seen by Dr. Miles Johnson at Northwest Arkansas EMG Clinic on July 31, 2023. \n\nDavis-H303915 & H305142 \n \n11 \n \n \nThe history of the present illness as recorded by Dr. Johnson was that claimant had pain in the right \nmedial elbow and had been noticing problems in the left upper extremities. He had been referred by \nAPRN  Cynthia  Johnson  for  electrodiagnostic  testing  on  the  bilateral  upper  extremities. After \nperforming  some  physical  examinations  including  several  tests  which are  subjective  in  nature,  Dr. \nJohnson performed an EMG/NCS test to determine peripheral nerve involvement. The summary of \nthe test was:  \n“Bilateral  medial  and ulnar motor  studies  are  normal. Bilateral  median ulnar \northodromic sensory latency difference is normal. Radial sensory response is \nnormal  bilaterally. EMG  examination  of  the  bilateral  upper  extremities is \nwithin normal limits.”  His assessment was “normal electrode diagnostic study \nof the bilateral upper extremities. There is no electrodiagnostic evidence of a \nradiculopathy,  plexopathy,  generalized  peripheral  neuropathy  or  peripheral \nnerve entrapment syndrome or injury.”  (R.X. pages 39-43) \n \n Following  the EMG/NCV study,  claimant  returned  to  see  APRN  Delana  Rice  at the \nConservative  Care  Occupational  Health  Clinic  on  August  2,  2023. The  results  of  the  exam  were \nexplained  to  claimant,  which indicated  no carpal  or  cubital  tunnel  syndrome  and  no  radiculopathy. \nAPRN  Rice  believed  that  claimant  would  benefit  from  physical therapy  and referred  him  to River \nValley Therapy for such. APRN Rice restricted claimant to lifting ten pounds or less and no forced \ngripping for more than five seconds or repetitive motion work with either hand. (R.X pages 44-51). \n Claimant returned to Conservative Care Occupational Health on August 9, 2023, and again \nsaw APRN Delana Rice. An x-ray of the left thumb was ordered and was normal in that there were \nno fractures or abnormalities noted. APRN Rice determined that claimant should be referred to an \northopedic  doctor  to  evaluate  and  treat  the  left  thumb  and  elbow. After  this  visit,  claimant  was  to \nreturn to regular duty; however, use of his left hand and elbow were restricted to no lifting over five \npounds, no forced gripping and no repetitive motion work. (R.X 52-56) \n On August 14, 2023, claimant had his initial evaluation for physical therapy. The chart from \n\nDavis-H303915 & H305142 \n \n12 \n \n \nRiver Valley Therapy Sports Medicine was primarily a recitation of claimant’s complaints and I saw \nno  objective  findings  in  the  report by Scott  Bailey,  the  occupational  therapist, who worked  with \nclaimant  (R.X  pages  57-58). On  August  16,  2023, claimant  returned  to  see Mr.  Bailey  and  received \nconservative treatment; it was noted that he had an orthopedic appointment that day and no additional \ntherapy was added to his plan of care.  \n On August 16, 2023 claimant had his initial visit with Dr. Mark Tait, a hand surgeon, at the \nUAMS  Orthro  Clinic.    Dr. Tait  reviewed  the  past  medical  history  that  had  been  recorded  in  the \nelectronic medical records; there is no indication as to how extensive these records were. During the \nphysical examination, claimant showed some mild tenderness over the lateral epicondyle that was very \nmild. There was also some mild tenderness of the CMC joint and thenar muscles. Dr. Tait’s impression \nwas that claimant had bilateral mild lateral epicondylitis.  In the discussion and plan, Dr. Tait recorded:  \n                      “I discussed with the patient today, regarding the non-operative interventions \nmoving forward. I see no indication for operative interventions. At this point \nand  time,  he  will  receive  occupation  therapy  for  two  more  visits  and  will \ntransition him to a home program for treatment of the mild tennis elbow and \nCMC synovitis. I discussed with the patient that he won’t feel some symptoms, \nreassured him I see no signs of pathology that will require surgical intervention. \nHe can proceed with unrestricted lifting and gripping with both hands. He will \nbrace as   needed. I   feel   this   patient   has   reached   maximum   medical \nimprovement.”  \n                      (R.X. pages 60-62)   \n \n Dr. Tait then did a “To Whom it May Concern” as follows: “It is my medical opinion that Mr. \nJoey Davis may return to work without any restrictions regarding right hand.”  \n Between the time that Dr. Tait opined that the claimant needed no further treatment and the \ntime that respondents decided to controvert this claim, claimant returned to River Valley Therapy for \nthree  more  sessions of  physical  therapy  (August  21,  23,  25). These  records  contain  claimant’s \nsubjective reports as to how he is progressing, but there are no objective findings in any of these three \n\nDavis-H303915 & H305142 \n \n13 \n \n \nreports. \n Based on Dr. Tait’s findings, respondents determined on August 24, 2023, that it would no \nlonger recognize this as a compensable claim. \nDOCUMENTARY EVIDENCE \n Respondents  submitted twenty  pages  of  documentary  evidence. Many of these  are not \nparticularly  pertinent  to  the  decision in this  case. Claimant’s Report of Injury Form is referenced \nbelow. On August 24, 2023, that there was a letter to claimant denying his claim and on August 25, \n2023, a request for a change of physicians was denied by the Medical Cost Containment Division of \nthe Arkansas Workers’ Compensation Commission (R.NM. pages 2, 13, 14). On September 1, 2023, \nMr. Robert Montgomery, the Managing Attorney of the Public Employee Claims Division, wrote a \nletter to claimant explaining that his claim was denied due to no objective medical evidence of injury \nto either claimant’s right upper extremity or left upper extremity.  \n \nADJUDICATION \n \n \nA. Claim for a right upper extremity injury. \n Because the Employee’s Report of Injury Form (R. NM. 5) attributed this injury as “repetitive \ncleaning and scrubbing,” I requested that claimant clarify his claim. As recited above, he maintained \nit was a specific injury to his right arm on June 7, 2023, while engaged in employment activity. He \nwas definite that nothing was wrong with his right arm before that date (T. 44).  \n To  prove  a  compensable  injury  for  a  specific  injury,  the  claimant  must  establish  by  a \npreponderance of the evidence: (1) an injury arising out of and in the course of employment; (2) that \nthe injury caused internal or external harm to the body which required medical services or resulted \nin disability or death; (3) medical evidence supported by objective findings, as defined in Ark. Code \n\nDavis-H303915 & H305142 \n \n14 \n \n \nAnn. § 11-9-102(16) establishing the injury; and (4) that the injury was caused by a specific incident \nand  identifiable  by  time  and  place  of  occurrence.  If  the  claimant  fails  to  establish  any  of  the \nrequirements for establishing the compensability of the claim, compensation must be denied. Mikel \nv. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  \n Based on the medical records from Kirkland, I cannot find that claimant met his burden of \nproof that his injury arose from the course of his employment. He complained of an issue with his \nright hand during his examination on January 16, 2023. When he returned to Kirkland on June 15, \n2023,  he  made  no  mention  of  a  specific  incident  the  week  before  at  work,  but  rather  related  the \nproblem back to what he had reported in January 2023. It is also curious that claimant told APRN \nShockley about a  nerve  conduction study that had  already  been  planned  with  a  neurologist  in  July \n2023; were it related to this injury, it would have had to have been scheduled between June 7, 2023, \nand June 15, 2023.  No records from a neurologist—including a verification that an appointment had \nbeen scheduled after June 7, 2023—were submitted. Viewing all the evidence before me, the records \nindicate  this  was  a  problem  that  existed  before  June  7,  2023,  and  was  not  caused  in  the  manner \nclaimant alleged.  \n Further, the medical records do not show an objective finding of an issue with claimant’s right \narm. The EMG/NCV test was normal, as was the x-ray performed by Dr. Tait. Even conceding for \nthe sake of argument that claimant had something wrong in his right arm, there are no medical records \nto support anything other than “bilateral mild lateral epicondylitis” (R.X. 60) and “bilateral mild CMC \nsynovitis (R.X. 61); both of those diagnoses were due to claimant’s report of tenderness, which are \nsubjective findings, not the objective findings required by Ark. Code Ann. § 11-9-102(16).   \n Thus, as claimant complained of issues with his right hand that had nothing to do with his \nemployment in January 2023, did not mention anything about an injury at work when he was seen at \n\nDavis-H303915 & H305142 \n \n15 \n \n \nKirkland on June 15, 2023, and because he failed to provide sufficient medical evidence of an objective \nfinding on his right upper extremity, he has not met his burden of proof on that issue. \n \n B. Claim for a left upper extremity injury. \n After both sides rested, I asked claimant to be specific about what he was claiming as far as \nthe injury to his left arm. The Prehearing Order said simply “On July 27, 2023, direct result of brace \non right hand, sharp pains in left elbow—tennis elbow.”   His testimony clarified that he believed that \nhe suffered a gradual onset injury due to overuse of his left hand because of the restricted use of his \nright arm, and did not attribute the issue with his left arm to be related to a specific incident.  \n  To be awarded benefits for a gradual onset injury, the claimant must prove several things: (1) \nthe  injury  arose  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused  internal  or  external \nphysical harm to the body, which required medical services or resulted in death or disability; (3) the \ninjury was caused by rapid repetitive motion; (4) the injury was the major cause of the disability or \nneed for treatment; and (5) the injury was established by objective medical findings. A.C.A. § 11-9-\n102(4)(D); Malone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W. 2d 644 (1998) and Hapney v. Rheem \nMfg. Co. 342 Ark. 11, 26 S.W.3d 777 (2000). Arkansas courts have set out a two-pronged test for such \ncases  as  the  matter  at  bar.  The  claimant  must  engage  in  tasks  that  are  repetitive  and  the  repetitive \nmotion must be rapid, Malone, supra. \n Claimant’s testimony fails to support that he engaged in rapid repetitive motions during his \ncustodial work. While claimant did not give a recitation of his job duties, during his testimony he told \nof cleaning toilets and stoves, wiping countertops, and scrubbing bathtubs. None of this kind of work \nqualifies as “rapid repetitive motion” activities.  \n However, that finding does not end the examination of the claim for a left arm injury. When \n\nDavis-H303915 & H305142 \n \n16 \n \n \na  worker  sustains  a  compensable  injury,  then  every  natural  consequence  of  that  injury  is  also \ncompensable, Hubley v. Best Western Governor's Inn, 52 Ark. App. 226, 916 S.W.143 (1996). The basic \nissue is whether there is a casual connection between the initial injury and the alleged consequential \ncondition. Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998). It is not hard to \nunderstand how working with restrictions on one hand could cause overuse on the other. However, \nthere is the necessity of proving a compensable injury—in this case, to claimant’s right hand—before  \na subsequent injury may be a natural consequence from that compensable injury. Failing to establish \nthe issues with the right upper extremity was a compensable injury means that his claim for his left \nupper extremity must be denied on that basis as well as the failure to prove a gradual onset injury.   \n \nORDER \n \n For  the reasons  set  out  above,  claimant  has  failed  to  meet  his burden  of  proving  by  a \npreponderance of the evidence that he suffered a compensable injury on June 7, 2023 and has also \nfailed to meet his burden of proof by a preponderance of the evidence that he suffered a compensable \ngradual-onset  injury  on  or  about  July 27,  2023.  Therefore,  his claim  for  compensation  benefits  is \nhereby denied and dismissed. \n Respondent is responsible for paying the court reporter her charges of $858.00 for preparation \nof the hearing transcript. \n \n IT IS SO ORDERED. \n \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":33253,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303915 & H305142 JOEY DAVIS, EMPLOYEE CLAIMANT ARKANSAS TECH UNIVERSITY, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER RESPONDENT OPINION FILED MAY 2, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope County, ...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["shoulder","repetitive","carpal tunnel","wrist","back"],"fetchedAt":"2026-05-19T22:53:41.052Z"},{"id":"alj-H305120-2024-05-02","awccNumber":"H305120","decisionDate":"2024-05-02","decisionYear":2024,"opinionType":"alj","claimantName":"Melvin Ruiz","employerName":"Pedro Lopez","title":"RUIZ VS. PEDRO LOPEZ AWCC# H305120 May 2, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Ruiz_Melvin_H305120_20240502.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Ruiz_Melvin_H305120_20240502.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H305120 \n \n \nMELVIN RUIZ, EMPLOYEE CLAIMANT \n \nPEDRO LOPEZ, EMPLOYER RESPONDENT \n \nTECHNOLOGY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MAY 2, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 2, 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr. William  C.  Frye,  Attorney  at  Law, North Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on May 2, 2024, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    Admitted  into \nevidence  without  objection  was Commission  Exhibit  1,  forms,  pleadings,  and \ncorrespondence related to this claim, consisting of 18 pages. \n The record reveals the following procedural history: \n The First Reports of Injury or Illness, filed on August 28 and September 8, \n2023, reflect that Claimant purportedly suffered injuries to his leg, knee, and ribs \n\nRUIZ – H305120 \n2 \n \nat work on July 25, 2023.  Per the Forms AR-2 filed on August 29 and September \n6,  2023,  Respondents controverted  the  claim  in  its  entirety—initially  because \nClaimant  purportedly  was  not  an  employee  of  Respondent  Lopez,  and  later \npurportedly because of a lack of medical documentation of an injury. \n On August 11, 2023, through then-counsel Mark Peoples, Claimant filed a \nForm  AR-C,  alleging  that  he  was  entitled  to  the  full  range  of  initial  benefits from \nAffordable Residential Roofing and its insurer for his alleged work-related injuries.  \nIn an amended Form AR-C filed on August 29, 2023, Peoples changed the name \nof the alleged employer to Respondent Lopez.  He took pains to represent that his \nclient  was  not  yet  requesting  a  hearing  on  his  claim.   Respondents’ counsel \nconfirmed to the  Commission  on August  29  and  September  14,  2023,  that his \nclients were controverting the claim in its entirety. \n On December 18,    2023, Peoples moved    to    withdraw    from    his \nrepresentation  of  Claimant.    In  an  Order  entered  on January 9,  2024,  the  Full \nCommission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nFebruary 28,  2024,  when  Respondents  filed  the  instant Motion  to Dismiss, \ncontending that “[n]o action has been taken since the AR-C was filed in August of \n2023.”  On March 4, 2024, my office wrote Claimant, requesting a response to the \nmotion within 20 days.  This correspondence was sent by both certified and first-\nclass  mail to  the Little  Rock address  for  Claimant  listed  in  the  file  and  on  his \nForms AR-C.   The  certified  letter was  returned  to  the  Commission,  undelivered, \n\nRUIZ – H305120 \n3 \n \non March 29,  2024;  but the  first-class  correspondence  was not returned to  the \nCommission.  However, no response by Claimant to the motion was forthcoming. \n On March 27, 2024, a hearing on Respondents’ motion was scheduled for \nMay  2,  2024, at 9:30 a.m.  at  the Commission in Little  Rock.    The Notice  of \nHearing was sent to Claimant by certified and first-class mail to the same address \nas  before.  In  this  instance, both the  first-class and  certified letters were \nreturned—on April 1 and 2, 2024, respectively. \n The  hearing  proceeded  as  scheduled on May  2,  2024.    Claimant  failed  to \nappear  at  the  hearing.    But  Respondents  appeared  through  counsel  and  argued \nfor dismissal under AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute his claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \n\nRUIZ – H305120 \n4 \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction in pursuit of his claim since the filing of his amended Form AR-C on August \n29, 2023.  Moreover, he failed to appear on the hearing to argue against dismissal \nof  the  claim,  despite  the  evidence  showing  that  both  he  and  Respondents  were \nprovided  reasonable  notice  of  the  Motion  to Dismiss  and  of  the  hearing  thereon.  \nThus, the evidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).   The Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nRUIZ – H305120 \n5 \n \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":6624,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H305120 MELVIN RUIZ, EMPLOYEE CLAIMANT PEDRO LOPEZ, EMPLOYER RESPONDENT TECHNOLOGY INS. CO., CARRIER RESPONDENT OPINION FILED MAY 2, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 2, 2024, in Little Rock, Pulaski County, Arkansas....","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:53:43.120Z"},{"id":"alj-H307052-2024-05-02","awccNumber":"H307052","decisionDate":"2024-05-02","decisionYear":2024,"opinionType":"alj","claimantName":"Juan Parga","employerName":null,"title":"PARGA VS. FRANK SHARUM LANDSCAPE DESIGN INC.AWCC# H307052May 2, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/PARGA_JUAN_H307052_20240502.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PARGA_JUAN_H307052_20240502.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H307052 \n \nJUAN CARLOS SUSTAITA PARGA, EMPLOYEE  CLAIMANT \n \nFRANK SHARUM LANDSCAPE DESIGN INC., EMPLOYER RESPONDENT \n \nCNA INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MAY 2, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is represented by MARK ALAN PEOPLES, Attorney, Little Rock, Arkansas; however, \nclaimant and his attorney did not appear at the hearing. \n \nRespondents are represented by TODD WOOTEN, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  November 4, 2023, claimant filed Form AR-C, alleging a compensable injury on October \n24, 2023.   Claimant was represented at the time by Mark Alan Peoples.   \nOn January 10, 2024, claimant’s attorney Mr. Mark Alan Peoples filed a Motion to Dismiss, \nalleging that claimant does not wish to pursue this claim and asks that it be withdrawn.    On March \n1, 2024, claimant’s attorney advised the Commission he had no objection to the Motion to Dismiss \nproceeding to a hearing, and that he would not attend the hearing.  A hearing on claimant’s Motion \nto Dismiss was scheduled for April 23, 2024.  Notice of the scheduled hearing was sent to claimant \nby  certified  mail  at  the  last known address in the Commission’s file.  The notice was delivered to \nclaimant on March 6, 2024.    Claimant did not respond to the motion filed by his attorney and did \nnot appear in person at the hearing on April 23, 2024.  Mr. Todd Wooten did appear on behalf of \nrespondents and joined in the Motion to Dismiss.  \n After my review of the claimant’s motion, the claimant’s failure to attend the hearing for his \n\nSustaita-Parga-H307052 \n \n2 \n \nmotion, the respondents’ agreement to claimant’s motion, as well as all other matters properly before \nthe Commission, I find that claimant’s Motion to Dismiss this claim should be and hereby is granted.  \nThis dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2254,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H307052 JUAN CARLOS SUSTAITA PARGA, EMPLOYEE CLAIMANT FRANK SHARUM LANDSCAPE DESIGN INC., EMPLOYER RESPONDENT CNA INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MAY 2, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Spri...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:53:45.263Z"},{"id":"alj-H304906-2024-05-01","awccNumber":"H304906","decisionDate":"2024-05-01","decisionYear":2024,"opinionType":"alj","claimantName":"Luis Roldan","employerName":null,"title":"ROLDAN VS. BRYAN BOWERS, GCB BUILDERS.AWCC# H304906May 1, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Roldan_Luis_H304906_20240501.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Roldan_Luis_H304906_20240501.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H304906 \n \nLUIS ROLDAN (DEC’D), \nEMPLOYEE                                                                                                              CLAIMANT \n \nBRYAN BOWERS, GCB BUILDERS, \nEMPLOYER                                                                                                         RESPONDENT  \n \nTECHNOLOGY INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nAMTRUST NORTH AMERICA, \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED MAY 1, 2024 \n \nHearing conducted on Friday, April 12,  2024,  before  the  Arkansas  Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Jonesboro, \nCraighead County, Arkansas. \n \nThe Claimant’s widow, Mrs. Virginia Martinez-Castillo, is represented by Attorney Phillip Wells, \nof Jonesboro, Arkansas, who did not appear in person at the hearing.  \n \nThe Respondents  were represented by  the Honorable William  C.  Frye, North Little  Rock, \nArkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on April 12, 2024, in Jonesboro, Arkansas. No testimony was taken in the \ncase.  Claimant, who according  to  Commission  records, is deceased, and  his  widow,  Virginia \nMartinez-Castillo, was acting as a pro se Claimant for husband’s estate at the initial filing of the \nmotion. The Respondent/Employer was made aware of his death on July 20, 2023, the same day \nit occurred. Admitted into evidence was Commission Exhibit 1, pleadings, correspondence, and \nCertified  U.S.  Mail  return  receipts,  consisting  of nine pages. I  have  also  blue-backed to  the \n\nROLDAN, AWCC No. H304906 \n \n2 \n \nevidentiary record Claimant’s Forms AR-1, AR-2, and AR-C, plus a letter from Phillip Wells to \nthe Commission dated March 21, 2024, as discussed infra. \nThe record reflects the following procedural history: on August 3, 2023, a Form AR-C was \nfiled in this case, reflecting that Claimant died purportedly of poison inhalation. The form AR-C \nwas filed by the Claimant’s then lawyer, Mark Peoples, who entered his appearance the same day \nas the filing of the Form AR-C. The Respondents were represented by Attorney William C. Frye, \nwho entered an appearance on August 10, 2023. Respondents filed a Form AR-2 on August 14, \n2023, controverting the claim in its entirety on the grounds that Claimant was a sub-contractor and \nnot a direct employee of the insured. The Respondents further codified their controverted position \nvia email dated August 22, 2023, sent to the Commission and Claimant’s attorney.  \nPeoples filed  a  Motion  to  Withdraw  as  Counsel  from  the  claim  on  September 13,  2023. \nThe Commission granted the motion on September 26, 2023. Respondents then filed a Motion to \nDismiss on February 9, 2024. Claimant’s widow was sent notice of the Motion to Dismiss from \nthe Commission on February 12, 2024, to Claimant’s last known address. She did not respond to \nthe Motion; so a hearing was set for April 12, 2024.  \nThus, in accordance with applicable Arkansas law, the Claimant’s widow was mailed due \nand proper legal notice of both the Respondents’ Motion to Dismiss and the hearing notice at her \ncurrent address of record via the United States Postal Service (USPS), First Class Certified Mail, \nReturn  Receipt  Requested, and  regular  First-Class  Mail.  The  certified  notice was  signed  by the \nClaimant’s widow at the address of record and the regular First-Class mail notice was not returned. \nThe Claimant’s widow hired Attorney Phillip Wells on March 21, 2024. He responded  to  the \nMotion to Dismiss on March 29, 2024, indicating that his client did not object to the dismissal of \n\nROLDAN, AWCC No. H304906 \n \n3 \n \nthis claim without prejudice. Attorney Wells then filed another Form AR-C, signed by the widow \nand himself.  \nSince  there  was  not  a  request  for  hearing - rather, a  concession  to  the  dismissal  without \nprejudice - the Motion to Dismiss hearing date was not continued. The hearing took place on April \n12,  2024.  The  Claimant’s widow and her  counsel requested  permission  not  to  show  up  for  the \nhearing since they were conceding to the Motion to Dismiss without prejudice. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and the \nevidentiary record, I hereby make the following findings: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had reasonable notice of the April 12, 2024, \nhearing. \n \n3. The Claimant has failed to prosecute this claim under AWCC Rule 099.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted.     \n \nDISCUSSION \n Consistent  with both Ark.  Code  Ann. §  11-9-702(a)(4) (Repl.  2012) and  AWCC  Rule \n099.13, the  Commission  scheduled  and  conducted  a  hearing,  with  proper  notice, on  the \nRespondents’ Motion to Dismiss. Commission Exhibit 1 provides multiple signed Certified U.S. \nMail Return Receipts. One receipt dated February 14, 2024, signed by Virginia Martinez Castillo, \nthe Claimant’s widow, establishes Claimant’s notice of the Motion to Dismiss. The other Certified \nU.S. Mail Return Receipt dated March 14, 2024, was also signed by the Claimant’s widow, and \nestablishes notice of the Motion to Dismiss hearing date.  \n\nROLDAN, AWCC No. H304906 \n \n4 \n \nAWCC Rule 099.13 allows the Commission, upon meritorious application, to dismiss an \naction  pending  before  it  due  to  a  want  of  prosecution. The Claimant’s widow responded to the \nMotion to Dismiss, albeit late, through her current attorney who did not request a hearing. Rather, \nhe consented to the Motion to Dismiss without prejudice. Since no action has been taken since the \nfiling of the August 3, 2023, Form AR-C, the Respondents’ motion should be granted. Therefore, \nI find by the preponderance of the evidence that the Claimant’s widow has run afoul of AWCC \nRule 099.13 and the Respondents’ Motion to Dismiss should be granted. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is granted, and this claim is hereby dismissed without prejudice. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":6877,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H304906 LUIS ROLDAN (DEC’D), EMPLOYEE CLAIMANT BRYAN BOWERS, GCB BUILDERS, EMPLOYER RESPONDENT TECHNOLOGY INS. CO., CARRIER RESPONDENT AMTRUST NORTH AMERICA, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MAY 1, 2024 Hearing conducted on Friday, April 12,...","outcome":"dismissed","outcomeKeywords":["dismissed:12","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:53:36.692Z"},{"id":"alj-H304348-2024-04-30","awccNumber":"H304348","decisionDate":"2024-04-30","decisionYear":2024,"opinionType":"alj","claimantName":"Mark King","employerName":"Recon Group, Inc","title":"KING VS. RECON GROUP, INC. AWCC# H304348 APRIL 30, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/KING_MARK_H304348_20240430.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KING_MARK_H304348_20240430.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H304348 \n \nMARK KING, Employee CLAIMANT \n \nRECON GROUP, INC., Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED APRIL 30, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by LAURI THOMAS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On February  6,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on October  30,  2023,  and  a  Pre-hearing \nOrder  was  filed  on October  31,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on June 27, \n2023. \n 3. The respondents have controverted the claim in its entirety. \n\nKing – H304348 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $391.00 for temporary total disability benefits and $293.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to his left knee on or about June 27, \n2023. \n 2. Whether Claimant is entitled to medical treatment for his compensable left knee injury. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  November  1, \n2023, to November 28, 2023.  \n 4. Whether Claimant’s attorney is entitled to an attorney’s fee. \n The claimant's contentions are as follows: \n“Claimant   sustained   a   compensable   injury   while   working   for \nRespondent on or about 6/27/23. At that time, claimant was in the \ncourse and scope of his employment with Respondent when a cart \nhit his shin, causing him to fall onto another cart, twisting his knee \nin the process. \n \nOn  6/30/23  Mr.  King  reported  to  Northwest  Medical  Center  with \ncomplaints of left knee pain that had not subsided since he twisted \nhis knee at work. After performing test and imaging, Dr. Burton at \nNorthwest   Medical   Center   suspected   an   internal   left   lateral \nmeniscal   injury.   She   recommended   that   he   follow   up   with \northopedics. \n \nOn 7/10/23 Mr. King reported to Dr. Maline at the Agility Center \nwith  complaints  of  left  knee  pain.  The  doctor  determined  his \nsymptoms  were  consistent  with  a  meniscal  tear  and  requested  an \nMRI of Claimant’s left knee. \n \nThe Respondents have denied Claimant’s right to further medical \ntreatment. Mr. King was unable to delay treatment any further. On \n9/19/23  Mr.  King  had  an  MRI  of  his  left  knee  which  showed \nlongitudinal  horizontal  type  tear  of  the  medial  meniscus.  After \n\nKing – H304348 \n \n-3- \nreviewing the MRI, Dr. Maline recommended surgery to repair the \ntear.” \n \n The respondents’ contentions are as follows: \n“Respondents   contend   that   the   claimant   did   not   sustain   a \ncompensable    injury    within    the    course    and    scope    of    his \nemployment.” \n \n The  claimant  in  this  matter  is  a 57-year-old  male who  alleges  to  have  sustained  a \ncompensable  injury  to  his  left  knee  on  June  27,  2023.  The  claimant’s  job  duties  for  the \nrespondent included taking products off a line, entering them into a computer system, and putting \nthose  products  away.  On  direct  examination  the  claimant  described  the  incident  in  which  he \nalleges  to  have  suffered  a  compensable  left  knee  injury.  That  incident  occurred  about  10  to  15 \nminutes  prior  to  the  end  of  the  workday.  A  video  has  been  introduced  into  evidence  on  a  flash \ndrive marked as Claimant’s Exhibit 3. The claimant’s testimony regarding that incident follows: \nQ And tell us about that day. \n \nA Okay. Well, the day was almost over and at the  end of the \nday,  we  always  get  a  push  of  product  on  the  line.  I  was  storing \nstuff into the computer. I emptied a bin of product and then I went \nto  get  another  bin  of  product  off  the  line.  Someone  had  placed  a \nflat cart, which stands about this tall (indicating), behind me and I \ndidn’t see it. I turned around, walked right into it hitting my right \nshin  on  it.  Fell  forward.  Used  my  left  leg  to  brace  myself,  almost \nfalling. I did everything I could not to fall. \n \nQ Was it painful? \n \nA Very painful. \n \nQ Did you report it to anyone? \n \nA I reported it to my supervisor, Jamie Deans, immediately. \n \nQ And after you reported it to Ms. Deans, what happened? \n \n\nKing – H304348 \n \n-4- \nA They sat me down over at Jamie’s desk. Put some ice on it. \nSince it was the end of the day, they decided that they would wait \nuntil the next morning to do a report incident on it. \n \nQ Okay.  So  from  the  time  you  got  injured  until  you  clocked \nout, how long was that time frame? \n \nA Ten, maybe 15 minutes. \n \nQ Okay. So when you clocked out, what did you do after this? \n \nA I went straight home. \n \n The  claimant  was  also  asked  about  his  alleged  left  knee  injury  on  cross  examination  as \nfollows:  \nQ Okay. Now, you turned around from entering some product \ninto  the  computer  and  somebody  had  put  this  cart  behind  you;  is \nthat right? \n \nA Correct. \n \nQ Okay. I believe it was a blue cart? \n \nA Correct. \n \nQ Okay.  And  when  you  turned  around,  you  described  that  it \nwas about six inches off the floor? \n \nA Correct. \n \nQ And  you  struck  your  right  shin  on  that  cart  which  would \nhave been six inches above the floor? \n \nA Correct. \n \nQ So right above where your ankle is? \n \nA Right. \n \nQ Right in that shin area? \n \nA Correct. \n \n\nKing – H304348 \n \n-5- \nQ Okay. Now, you didn’t have any pain at that point in your \nleft knee; did you? \n \nA No.  The  pain  was  so  severe  in  my  shin,  that  is  all  I  could \nfeel. \n \nQ Okay. Now, you didn’t have any pain that you knew of in \nyour left leg at all at the time involving your knee; correct? \n \nA No, I had not. Not that I felt. \n \nQ Okay. Hadn’t noticed any issues with your left knee when \nyou left that day; did you? \n \nA No, I did not. \n \nQ Didn’t notice any swelling or bruising or issues with your \nleft knee at all when you left work that day; correct? \n \nA No. \n \nQ Is that correct? \n \nA That is correct. \n \n The  claimant  testified  that  he  immediately  reported  the  incident  to  a  supervisor,  Jamie \nDeans. The claimant was placed at Ms. Deans’ desk and was given ice to apply to his right shin. \nHolly Killbreth, who is the respondent’s safety coordinator, was also present when the claimant \nreceived  the  ice  for  his  right  shin.  Ms.  Killbreth  was  called  as  a  witness  by  the  respondent  and \ngave direct examination testimony about her time with the claimant as follows: \nQ Okay.  So  were  you  called  to  the  location  where  Mr.  King \nand Ms. Deans would have been? \n \nA Correct. \n \nQ What did you do and what did you observe at the time you \nwere called? \n \n\nKing – H304348 \n \n-6- \nA When  we  first  got  there,  we  initially  asked  what  happened \nand  he  had  told  us  that  he  had  hit  his  shin,  so  we  just  observed  a \nscrape towards the bottom part of his shin by his ankle. \n \nQ Okay. \n \nA And it was red. \n \nQ When you said his shin, are you talking about the left or the \nright? \n \nA The right. \n \nQ The  right.  Okay.  Did  he  describe  any  other  complaints  or \nproblems at that time? \n \nA No. \n \n The  claimant  testified  that  he  went  home  after  work  and  took  a  nap  on  his  couch.  The \nclaimant also works part-time as a dance instructor and was scheduled to give a dance class that \nnight. The claimant gave direct examination testimony about his activities after work on June 27, \n2023, as follows: \nQ Okay. So when you clocked out, what did you do after this? \n \nA I went straight home. \n \nQ And what did you do when you went home? \n \nA I laid on the couch and took a nap. \n \nQ You didn’t do any physical activities? \n \nA No, ma’am. I was hurting too much. \n \nQ At  what  point  in  time,  originally  you – what  was  your \noriginal injury when you hit the flat cart? \n \nA I  had  a  contusion  on  my  shin  about  right  here  (indicating) \nand it was – it was a little red. You could tell that it broke the skin, \nbut it didn’t bleed. \n \n\nKing – H304348 \n \n-7- \nQ Okay.  So  at  what  point  in  time  did  you  realize  that  your \nknee was hurting? \n \nA When  I  woke  up  a  couple  of  hours  later  on  the  couch,  my \nknee was sore and it had started to swell. \n \nQ Are you a dance instructor? \n \nA I am. \n \nQ And did you have a dance class that night? \n \nA I did. \n \nQ Did you teach it? \n \nA I tried. \n \nQ Is  there  a  reason  why  you  went  to  the  dance  class  if  your \nknee was swollen? \n \nA I get paid and I need the money. \n \nQ Okay. When you say you tried to teach the class, what did \nyou do? \n \nA I basically got up to try to demonstrate the first move and I \ncouldn’t do that, so I asked Ms. Elsey to help me with the class. \n \nQ And is Ms. Elzey Missy? \n \nA Yes, ma’am. \n \n The claimant called Missy Elzey as a witness in this matter. Ms. Elzey testified on direct \nexamination that she was in the claimant’s dance class on June 27, 2023. She further testified: \nQ Did you notice if there was anything off about that night’s \ndance class? \n \nA Yeah, right away.  I mean we were just sitting and chatting \nand then when he first got up, he kind of winced and did kind one \nof those, you know. And I was like, “Oh, what is wrong?” I first \nthought what is wrong because when you are trying to dance, you \nknow, and he said, “ I hurt myself at work,” so .... \n\nKing – H304348 \n \n-8- \n \nQ Did he describe how he hurt himself? \n \nA Yeah,  because  I  asked  like  what  happened,  so  he  just  said \nhe  tripped – I  always  get  this  all  mixed  up,  but  he  tripped  on \nsomething  and  hit  his  shin.  And  then  in  trying  to  correct  that,  he \nkind of twisted his knee  and the fallout from it, so it just sounded \nlike a mess, you know. \n \nQ So at that night’s class, he said he hurt his shin and hurt his \nknee? \n \nA Uh-huh. \n \nQ And it was your understanding that that happened at work? \n \nA Yes. \n \nQ Was it your understanding it happened that day? \n \nA Uh-huh. Yeah. \n \nQ Were you able to see his knees and his shin? \n \nA He was showing me because I was like, you know, what is \nhappening.  His  knee  looked  swollen.  And  like  the  other,  his  shin \nwhere he had hit it on something was kind of dented, red, bruised. \nThat was just starting since it was that day, so it didn’t look so \ngood, so .... \n \nQ Was he able to teach the class? \n \nA Huh-uh.  No.  He  got  up  and  that  is  when  I  first  noticed \nsomething  was  wrong  because  he  got  up  to  start  and  he  kind  of, \nyou know, was hobbling a little bit. So he just sort of said, “Well, \nif you can do this, I will kind of tell you what to do,” so I had to \nwing it. You know, I can wing it. \n \nQ So you took over the class? \n \nA Yeah. \n \n The  claimant  also  called  Sherri  Swedlund  as  a  witness.  Ms.  Swedlund  was  also  in  the \nclaimant’s dance class on June 27, 2023, and gave the following direct examination testimony: \n\nKing – H304348 \n \n-9- \nQ When  Mr.  King  arrived,  did  you  notice  anything  off  about \nMr. King? \n \nA He came in limping. \n \nQ Okay. Which leg was he limping on? \n \nA Left. \n \nQ Did you notice anything – did he have shorts on? \n \nA Yes. \n \nQ Were you able to see any injury? \n \nA He  had  a  knee  brace  on  his  left  knee  and  then  on  his  right \nleg, he had like a scratch, like some kind of mark or something on \nhis left leg – or right leg. \n \nQ And  when  you  say  knee  brace,  you  mean  like  an  ACE \nbandage? \n \nA No. It was more like a black thing, like a knee – yeah. \n \nQ Okay. Did he complain about being in any pain? \n \nA Yes. \n \nQ And where was he complaining the pain was coming from? \n \n MR.  WADE:  Your  Honor,  I  object.  This  is  hearsay.  It  is \nnot  offered  by  a  party-opponent.  It  is  offered  to  bolster  the \ntestimony of the Claimant and it doesn’t meet the exceptions to the \nhearsay rule. \n \n THE COURT: Overruled. \n \nQ [BY MS. THOMAS]: Did he complain of any pain? \n \nA Yes. \n \nQ And where did he indicate it was? \n \nA On his knee. \n \n\nKing – H304348 \n \n-10- \nQ Did he teach class that night? \n \nA No. \n \nQ Who taught class that night? \n \nA He stood there and he didn’t teach – like  dance.  He  just \nstood there and said, hey, do this and we just kind of followed his \nverbal instruction. \n \nQ And is that normally how he teaches class? \n \nA No. \n \nQ How does he normally teach class? \n \nA He dances with us. Like he will dance with us and show us \neverything. \n \nQ But he could not that night? \n \nA No. \n \n The claimant returned to work the next day and testified that he reported that morning to \nhis supervisor, Jamie Deans, that he had injured his left knee in the incident the day before. Later \nthat day the claimant was provided a Health and Safety Incident Report to sign. That report was \ncompleted  by  Ms.  Killbreth,  the  respondent’s  safety  coordinator.  That  report  is  found  at \nRespondents’ Exhibits 2. The report makes no mention of the claimant’s left knee, only his right \nshin.  However,  on  direct  examination  Ms.  Killbreth  testified  that  all  the  information  in  that \nreport was from the time of the incident on June 27, 2023, not information gained after June 27, \n2023.  Ms.  Killbreth  gave  the  report  to  the  claimant  to  review  and  sign  on  June  28,  2023.  The \nclaimant did sign the report but testified on cross examination as follows:  \nQ Now, were you given the opportunity to review that report \nbefore you signed it? \n \nA I looked it over. I didn’t really read it. I just looked it over. \n\nKing – H304348 \n \n-11- \n \nQ Okay.  so  you  had  the  chance  to  look  at  those  six  pages  of \ndocuments at the time you signed it; correct? \n \nA Yes. \n \nQ Okay. \n \nA I  did  assume  that  it  would  be  added  to,  the  knee  injury, \nbecause  I  did – when  I  got  to  work  that  morning,  I  immediately \ntold  my  supervisor,  Jamie  Deans,  that  my  knee  was  hurting  and  I \nbelieve I hurt it the day before at work. \n \nQ Did  you  make  any  suggestion  to  Ms.  Killbreth  or  indicate \nto  her  any  other  injury  than  the  shin,  which  is  identified  in  that \nreport? \n \nA I  do  believe  I  told  Ms.  Killbreth  that  my  knee  was  hurting \nas well. \n \nAs  made  clear  in  cross  examination,  the  claimant never asked  to  amend  the  report  he \nsigned  on  June  28,  2023.  On  cross  examination  Ms.  Killbreth  was  asked  about  speaking  to  the \nclaimant’s supervisor and protocol for the claimant to report his left knee as follows: \nQ When  he  filled  out – when  you  brought  that  report,  it  was \nalready filled out; correct? \n \nA Correct. We typed it up. \n \nQ Is Ms. Deans’ signature on that paper? \n \nA No, it is not. \n \nQ Had you spoken with Jamie Deans before you gave that to \nMr. King? \n \nA No, I did not. \n \nQ So  if  he  reported  it  to  his  supervisor,  you  would  not  have \nbeen aware of the knee. If you hadn’t spoken to her and she didn’t \nsign the paperwork, the only person he reported it to, you hadn’t \nspoken with? \n \n\nKing – H304348 \n \n-12- \nA I had not spoke to her, no. \n \nQ And  would  it  be  proper  procedure  or  protocol  for  him  to \ntell his supervisor? \n \nA Yes. \n \nQ Okay. He doesn’t work in HR; does he? \n \nA No. \n \nQ So  if  he  reported  it  to  his  supervisor,  would  it  be  safe  for \nhim   to   assume   that   you   would   take   care   of   the   appropriate \npaperwork? \n \nA I can’t answer what he is going to assume. \n \nQ Should you take care of the appropriate paperwork and not \nhim? \n \nA The HR lady would have taken care of it. She would come \nto me when the HR lady is made aware of it. \n \n The  claimant  was  asked  on  direct  examination  about  medical  treatment  for  his  left  knee \nas follows: \nQ At some point in time, did you decide you needed medical \ntreatment? \n \nA Yes. It was two and a half days afterwards, right after lunch \nmy knee was hurting really bad, so I when to my supervisor, Jamie \nDeans, and told her I need to go to the doctor. \n \nQ And what did Ms. Deans tell you? \n \nA She  sent  me  to  Jolene,  our  HR  representative,  and  Jolene \ngave  me  a  list  of  hospitals  or  clinics  that  I  could  go  to  to  be  seen \nabout my injury. \n \nQ Okay. And which one did you go to? \n \nA I went to Northwest Medical Center. \n \nQ And what test did they run? \n\nKing – H304348 \n \n-13- \n \nA They ran an X-ray. \n \nQ Did  they  give  you  any  follow-up  instructions  after  you \nwent home? \n \nA They  wanted  me  to  set  an  appointment  with  an  orthopedic \ndoctor, Dr. Maline. \n \nQ Did they give you any kind of instructions on how to treat \nyour knee? \n \n MR.  WADE:  Your  Honor,  I  am  going  to  object.  That  is \nhearsay. The medical records are in evidence. \n \n THE   COURT:   I   think   he   can   say   if   they   gave   him \ninstructions or not. \n \n MR. WADE: Well, if he describes the instructions. \n \n THE COURT:  Well, I think the question was did they give \nyou any instructions, so I will overrule your objection. \n \n MR. WADE: Thank you, Your Honor. \n \n THE WITNESS: Yes, they did. \n \nQ [BY MS. THOMAS]: Did you have any restrictions placed \non   you   after   you   went   to   Northwest   Medical   Center   about \nworking? \n \nA Yes.  I  had  a  knee  brace  and  I  had  to  be  careful  about  how \nmuch I lift and things that I could do. \n \nQ Okay.  You  said  that  Northwest  Medical  Center  referred \nyou to Dr. Maline? \n \nA Yes, ma’am. \n \n On  June  30,  2023,  the  claimant  was  seen  at  Northwest  Medical  Center  by  PA  Chelsea \nBurton. Following is a portion of that medical record: \nHistory of Present Illness \n\nKing – H304348 \n \n-14- \n56-year-old  male  reported  history  of  meniscal  repair  right  leg \napproximately  5  years  ago  presents  the  emergency  department  for \n3  days  of  progressive  pain  in  his  left  anterior/lateral  and  posterior \nknee  and  his  left  buttock.  Symptoms  began  3  days  ago  after  he \nturned around while at work and someone had put a flat rolling cart \nbehind him and he hit his right shin causing him to stumble and he \njumped on top of the flat cart. At that time he had not noticed that \nhe had injured his left buttock or knee but later than evening while \nteaching  dance  class  he  began  developing  some  pain  in  his  left \nknee. Since then he has difficulty bearing weight on the left lower \nextremity  due  to  pain  at  the  knee  and  buttock  and  unable  to  fully \nstraighten  or  flex  the  left  knee  secondary  to  swelling  posteriorly. \nPatient   reporting   this   feels   similar   to   his   meniscal   injury \npreviously.   He   denies   lower   extremity   numbness,   tingling, \ndiscoloration, back pain. \n \n*** \nDiagnosis \nAcute    pain    of    left    hip    (ICD10-CM    M25.552,    Discharge, \nEmergency medicine, Medical) \nAcute   pain   of   left   knee   (ICD10-CM   M25.562,   Discharge, \nEmergency medicine, Medical) \nAcute  left-sided  back  pain  with  sciatica  (ICD10-CM  M54.42. \nDischarge, Emergency medicine, Medical) \n \n On July 10, 2023, the claimant was seen by DO Michael Maline at Agility Orthopedics. I \nnote that the medical record provides information on its first page about the claimant’s insurance \nprovider and states, “Med Workers’ Comp – Travelers.” Additionally, that medical record states: \nHPI \n*** \nNotes: \nPatient presents to the office today for pain in the left knee. He was \nat work when he went to turn around to grab another item to scan \nin  when  he  tripped  over  a  low  cart  that  some  one  had  left  behind \nhim. Once he turned and tripped on the cart when his right shin, he \nwas going to fall forward he landed with his right foot on the cart, \nthe  cart  then  started  to  move  and  he  tried  to  jump  off  of  the  cart \nand twisted his knee in the process. \n*** \nAssessment/Plan \n\nKing – H304348 \n \n-15- \nHis  outside  images  were  reviewed  independently  and  show  joint \nspace  well  maintained,  no  fracture  noted.  His  exam  is  consistent \nwith meniscal tear. Recommend MRI to evaluate. \n \n On  September  19,  2023,  the  claimant  underwent  an  MRI  of  his  left  knee  at  MANA \nMedical  Associates.  Following  is  a  portion  of  that  diagnostic  report  authored  by  Dr.  Tommy \nHinton: \nImpression: \n1. There   is   a   longitudinal   horizontal-type   tear   involving   the \nposterior horn and body of the medial meniscus. \n2. There is suprapatellar knee joint effusion. \n3. There is infrapatellar subcutaneous edema. \n \n On  October  10,  2023,  the  claimant  is  again  seen  by  DO  Maline.  I  note  the  first  page  of \nthat  medical  report  also  indicates  an  insurance  provider  which  now  states, “Med Primary – \nCIGNA,” a  change  from  DO  Maline’s  July  10,  2023,  medical  record  which  stated,  “Med \nWorkers’ Comp – Travelers.” At that visit DO Maline recommends arthroscopic surgery for a \ntorn medial meniscus in the claimant’s left knee.  \n On November 1, 2023, the claimant underwent surgical intervention at the hands of DO \nMaline. Following is a portion of that operative report: \nPREOPERATIVE   DIAGNOSIS:   Posterior   horn   tear   medial \nmeniscus, left knee. \n \nPREOPERATIVE   DIAGNOSIS:   Posterior   horn   tear   medial \nmeniscus, left knee. \n \nPROCEDURE  PERFORMED:  Left  knee  arthroscopy  with  partial \nmedial meniscectomy.  \n \n The  claimant  has  the  burden  to  prove  his  alleged  left  knee  injury  of  June  27,  2023, \ncompensable. In  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \n\nKing – H304348 \n \n-16- \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n The   claimant   can   clearly   prove   the   existence   of   objective   medical   findings   of \nderangement in the form of a left knee meniscus tear from his left knee MRI dated September 19, \n2023, and DO Maline’s operative report of November 1, 2023. \nThe  credibility  of  witnesses  and  the  weight  to  be  given  to  their  testimony  are  matters \nsolely within the province of the Commission.  Ringier America v. Combs, 41 Ark. App. 47, 849 \nS.W.2d 1 (1993). There were four witnesses in this matter and I believe the credibility of all the \nwitnesses to be high. \n The  claimant’s  testimony  about  how  his  injury  occurred  is  supported  by  the  video \nevidence in this matter. I believe the claimant to be truthful about the timing of his left knee pain \nand swelling occurring after his nap. The claimant’s testimony regarding his left knee problems \nprior  to  his  dance  class  is  supported  by  the  testimony  of  Ms.  Swedlund  and  Ms.  Elzey. I  find \nboth  to be credible  witnesses  in  this  matter.  I  will  note  some  differences  in  their  testimony  that \nwas highlighted on cross examination. However, both testified that his complaints began before \nhe danced and the differences and deficits of their testimony seem reasonable particularly given \nthat this was a random dance class for each of these individuals on June 27, 2023, and they did \nnot testify until February 6, 2024. \n The report compiled by Ms. Killbreth does not mention the claimant’s left knee, only his \nright shin. However, she testified all of that information was gathered before the claimant alleges \n\nKing – H304348 \n \n-17- \nhis pain in the left knee to have begun. Ms. Killbreth did not talk to Ms. Deans, the claimant’s \nsupervisor, on June 28, 2023, when he testified that he first complained of left knee injury before \nshe had the claimant sign the report. The claimant’s testimony that he did report his left knee \ninjury to the respondent is supported in medical evidence. DO Maline’s July 10, 2023, visit with \nthe  claimant  was  clearly billed through  the  respondent’s  workers’  compensation  insurance \npolicy. I believe the claimant’s testimony true that the next day he reported his left knee injury \nand that he was offered or provided medical treatment sometime thereafter. The claimant is able \nto prove a causal connection between his objective medical findings regarding his left knee and \nthe  incident  that  occurred  on  June  27,  2023.  The  claimant  is  able  to  prove  that  he  sustained  a \ncompensable left knee injury on June 27, 2023, as he has alleged. \n The  claimant  has  asked  the  Commission  to  determine  if  he  is  entitled  to  medical \ntreatment  for  his  compensable  left  knee  injury. Employers  must  promptly  provide  medical \nservices which are reasonably necessary in connection with the compensable injuries, Ark. Code \nAnn. §11-9-508(a).  However, injured employees have the burden of proving by a preponderance \nof  the  evidence  that  medical  treatment  is  reasonably  necessary.   Patchell  v.  Wal-Mart  Stores, \nInc.,  86  Ark.  App.  230,  184  S.W.3d  31  (2004).    What  constitutes  reasonable  and  necessary \nmedical treatment is a fact question for the Commission, and the resolution of this issue depends \nupon the sufficiency of the evidence.  Gansky v. Hi-Tech Engineering, 325 Ark. 163, 924 S.W.2d \n790  (1996).    Reasonably  necessary  medical  services  may  include  that  necessary  to  accurately \ndiagnose  the  nature  and  extent  of  the  compensable  injury;  to  maintain  the  level  of  healing \nachieved; or to prevent further deterioration of the damage produced by the compensable injury.  \nGreer v. Phillip Mitchell Construction, Full Commission Opinion February 14, 2003 (E906565).  \nIn  assessing  whether  a  given  medical  procedure  is  reasonably  necessary  for  treatment  of  the \n\nKing – H304348 \n \n-18- \ncompensable injury, it is necessary to analyze both the proposed procedure and the condition it is \nsought  to  remedy.   Deborah  Jones  v.  Seba,  Inc., Full Workers’ Compensation Commission, \nDecember 13, 1989 (D511255). \n After  a  review  of  the  medical  records  submitted  into  evidence  in  this  matter,  I  find  that \nthe  medical  treatment  shown  in  those  records  and  provided  to  the  claimant  is  reasonable and \nnecessary medical treatment for his compensable left knee injury and that the respondents shall \nbe responsible for the payment of that treatment, including the claimant’s out-of-pocket medical \ncosts.  \n The claimant has asked the Commission to determine if he is entitled to temporary total \ndisability  benefits  from  November  1,  2023,  to  November  28,  2023. A  claimant  who  suffers  a \nscheduled  injury  is  entitled  to  receive  temporary  total  or  temporary  partial  disability  benefits \nduring  their  healing  period  or  until  they  return  to  work,  regardless  of  whether  there  is  a  total \nincapacity to earn wages. Wheeler Construction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d \n822 (2001). \n A medical record found at Claimant’s Exhibit 1, page 34, indicates that the claimant may \nreturn to work on November 29, 2023. Given that the claimant’s surgical intervention was on \nNovember 1, 2023, and that he was removed from work until November 29, 2023, the claimant \nwas clearly within his healing period due to his compensable injury and taken off work as he was \ntemporarily totally disabled until he was able to return to work per DO Maline’s record on \nNovember  29,  2023.  The  claimant  is  able  to  prove  his  entitlement  to  temporary  total  disability \nbenefits from November 1, 2023, to November 28, 2023. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \n\nKing – H304348 \n \n-19- \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nOctober  30,  2023,  and  contained  in  a  Pre-hearing  Order  filed October  31,  2023,  are  hereby \naccepted as fact. \n 2. The  claimant  is  able  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained  a \ncompensable injury to his left knee on or about June 27, 2023. \n 3.  The  claimant  is  able  to  prove  by  a  preponderance  of  the  evidence  that is  entitled  to \nmedical  treatment  for  his  compensable  left  knee  injury,  including  any  out-of-pocket  expenses \nincurred by the claimant in this matter. \n 4. The claimant is able to prove by a preponderance of the evidence that he is entitled to \ntemporary total disability benefits from November 1, 2023, to November 28, 2023. \n 5.  The  claimant  is  able  to  prove  by  a  preponderance  of  the  evidence  that  his  attorney  is \nentitled to an attorney’s fee in this matter. \n ORDER \nThe  respondents  shall  be  responsible  for  the  costs  associated  with  reasonable and \nnecessary medical treatment regarding the claimant’s left knee injury which occurred on June 27, \n2023, including reimbursement to the claimant for out-of-pocket medical expenses. \nThe  respondents  shall  pay  the  claimant  temporary  disability  benefits  from  November  1, \n2023, to November 28, 2023. \nThe respondents shall pay to the claimant's attorney the maximum statutory attorney's fee \non the benefits awarded herein, with one half of said attorney's fee to be paid by the respondents \n\nKing – H304348 \n \n-20- \nin addition to such benefits and one half of said attorney's fee to be withheld by the respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":31397,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H304348 MARK KING, Employee CLAIMANT RECON GROUP, INC., Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED APRIL 30, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant r...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["knee","ankle","back","hip","fracture"],"fetchedAt":"2026-05-19T22:55:46.737Z"},{"id":"alj-H303635-2024-04-30","awccNumber":"H303635","decisionDate":"2024-04-30","decisionYear":2024,"opinionType":"alj","claimantName":"Paul Ullrich","employerName":null,"title":"ULLRICH VS. DIAMOND STATE TRUCKING, INC.AWCC# H303635April 30, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ULLRICH_PAUL_H303635_20240430.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ULLRICH_PAUL_H303635_20240430.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303635 \n \nPAUL ULLRICH,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nDIAMOND STATE TRUCKING, INC., \nEMPLOYER                                                                                                         RESPONDENT \n \nARKANSAS TRUCKING ASS’N SELF-INSURED FUND/ \nCCMSI \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED APRIL 30, 2024 \n \nHearing conducted on Thursday, April 25, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Texarkana, \nMiller County, Arkansas. \n \nThe claimant was represented by the Honorable Gregory R. Giles, Moore, Giles & Matteson, \nL.L.P., Texarkana, Miller County, Arkansas. \n \nThe respondents were represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Thursday, April 25, 2024, pursuant to the respondents’ motion \nto  dismiss  without  prejudice pursuant  to Ark. Code  Ann. §  11-9-702(a)(4)  (2024 Lexis \nReplacement) and Commission Rule 099.13 (2024 Lexis Repl.), with which the claimant, through \nhis attorney of record, voluntarily concurs. \n       During  the  course  of the parties’ prehearing teleconference  conducted in this matter on \nWednesday, April 9, 2024, both the claimant’s and respondents’ attorneys agreed this claim should \nbe  dismissed  at  this  time  for  the  aforementioned  reasons.  Consequently,  at  that  time  the \nrespondents’ made a motion to dismiss, and the claimant, through his attorney, concurred in the \nrespondents’ motion. Pursuant to the applicable law, the Commission mailed a hearing notice to \n\nPaul Ullrich, AWCC No. H106924 \n2 \n \nthe parties, and both the claimant’s and respondents’ attorneys appeared in person at the scheduled \nhearing. The  record  herein  consists  of the  hearing  transcript and  any  and  all exhibits  contained \ntherein and attached thereto. \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4), as well as our court of appeals’ ruling in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant does not \nwish to proceed with the prosecution of his claim at this time and, therefore, he voluntarily concurs \nwith the respondents’ motion to dismiss the claim at this time, so long as the dismissal is without \nprejudice to its refiling if and when the claim becomes ripe for hearing. \n        Therefore,  after a thorough consideration of  the facts, issues, the applicable law,  and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. The claimant herein voluntarily concurs with the respondents’ motion to dismiss this \nclaim made during the course of the parties’ Tuesday, April 9, 2024, prehearing \nteleconference.  \n \n3. Therefore, the respondents’ motion to dismiss without prejudice with which the claimant \nvoluntarily  concurs should  be and hereby is GRANTED; and this  claim is  dismissed \nwithout  prejudice to  its  refiling  pursuant  to  the  deadlines  prescribed by Ark.  Code  Ann. \nSection 11-9-702(a) and (b), and Commission Rule 099.13. \n \n\nPaul Ullrich, AWCC No. H106924 \n3 \n \n        This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling this claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":4877,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303635 PAUL ULLRICH, EMPLOYEE CLAIMANT DIAMOND STATE TRUCKING, INC., EMPLOYER RESPONDENT ARKANSAS TRUCKING ASS’N SELF-INSURED FUND/ CCMSI CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED APRIL 30, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:48.806Z"},{"id":"alj-H304863-2024-04-26","awccNumber":"H304863","decisionDate":"2024-04-26","decisionYear":2024,"opinionType":"alj","claimantName":"Carl Anderson","employerName":null,"title":"ANDERSON VS. CENTRAL MALONEY, INC.AWCC# H304863April 26, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ANDERSON_CARL_H304863_20240426.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ANDERSON_CARL_H304863_20240426.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H304863 \n \nCARL ANDERSON, EMPLOYEE       CLAIMANT \n \nCENTRAL MALONEY, INC. EMPLOYER           RESPONDENT \n \nCENTRAL MALONEY, INC./ \nRISK MANAGEMENT RESOURCES, CARRIER/TPA        RESPONDENT \n  \n \n \nOPINION FILED 26 APRIL 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe, 24 April 2024, in Little Rock, Arkansas. \n \nThe pro se claimant did not appear. \n \nMr. Guy Wade, Friday, Eldridge & Clark, LLP, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 23 April 2024. This case relates to an alleged workplace injury, \nsustained on or about 19 July 2023, to the claimant’s left eye area. A First Report of Injury \nwas filed on 24 July 2023 and a Form 2 was filed shortly afterwards, on 2 August 2023, \ndenying the claim. A hearing was then requested by the claimant, via email to the \nCommission, on 11 August 2023. See Respondent’s Exhibit No 1. \n On 30 January 2024, the respondents requested a dismissal of this matter for failure \nto prosecute the claim. A letter from the Commission to the claimant communicating that \nmotion was dated 5 February 2024 and another letter setting a hearing on the motion was \ndated 27 March 2024. Copies of those letters are included in Respondent’s Exhibit No 1, and \nthe Commission’s file is absent any response from the claimant. I noted at the hearing that \nmailings from the Commission to claimants are sent via both First Class and Certified Mail \n\nC. Anderson- H304863 \n2 \n \nwith return receipts requested. Returned mail is regularly appended to the Commission’s \nfile. This claim file includes only a return of the February 5\nth\n Certified Letter that indicates \nits return as “unclaimed.”  \nThe respondents appeared on 24 April 2024, presented their motion, and offered \nsupporting evidence into the record. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of their \nmotion. And the claimant did not appear to resist the dismissal of this claim. \n Ark. Code Ann. § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice after six months without a bona fide request for a hearing. Our Rule 99.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2890,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H304863 CARL ANDERSON, EMPLOYEE CLAIMANT CENTRAL MALONEY, INC. EMPLOYER RESPONDENT CENTRAL MALONEY, INC./ RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED 26 APRIL 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:42.521Z"},{"id":"alj-H304677-2024-04-26","awccNumber":"H304677","decisionDate":"2024-04-26","decisionYear":2024,"opinionType":"alj","claimantName":"Marilyn Snow","employerName":null,"title":"SNOW VS. PDC CO.AWCC# H304677April 26, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SNOW_MARILYN_G304677_20240426.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SNOW_MARILYN_G304677_20240426.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:44.648Z"},{"id":"full_commission-G904931-2024-04-23","awccNumber":"G904931","decisionDate":"2024-04-23","decisionYear":2024,"opinionType":"full_commission","claimantName":"Porter Sims","employerName":"Bryant School District","title":"SIMS VS. BRYANT SCHOOL DISTRICT AWCC# G904931 APRIL 23, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Sims_Porter_G904931_20240423.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Sims_Porter_G904931_20240423.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n CLAIM NO. G904931 \n \nPORTER R. SIMS, EMPLOYEE                            CLAIMANT \n \nBRYANT SCHOOL DISTRICT \nSELF-INSURED EMPLOYER                              RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nCARRIER/TPA                                                                      RESPONDENT \n \n \nORDER FILED APRIL 23, 2024 \n \nBefore the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. \n \nClaimant represented by the HONORABLE DANIEL E. WREN, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nORDER \n \n Presently before the Full Commission is Respondents’ Motion to \nDismiss Claimant’s Appeal of an administrative law judge’s opinion dated \nOctober 24, 2023 due to untimely filing of the Notice of Appeal.  \n The claimant’s attorney signed for the Opinion on October 26, 2023, \nwhich would make the notice of appeal due on November 25, 2023. The \nclaimant’s attorney emailed the notice of appeal to the Commission on \nNovember 24, 2023. The Commission offices were closed for the \nThanksgiving Holiday on Thursday, November 23, and Friday, November \n24, 2023.    The claimant’s notice of appeal was timely filed.   Since \n\nSims-G904931           2   \n \nNovember 25, 2013 fell on Saturday, the claimant’s notice of appeal was \nnot due until Monday, November 27, 2023.  \n After consideration of respondents’ motion and all other matters \nproperly before the Commission, we find that the Respondents’ Motion to \nDismiss Claimant’s Appeal should be and is hereby denied. \n  IT IS SO ORDERED. \n \n    ____________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n    ____________________________________          \n    M. SCOTT WILLHITE, Commissioner \n \n \n    _____________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1918,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G904931 PORTER R. SIMS, EMPLOYEE CLAIMANT BRYANT SCHOOL DISTRICT SELF-INSURED EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER/TPA RESPONDENT ORDER FILED APRIL 23, 2024 Before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Clai...","outcome":"dismissed","outcomeKeywords":["dismissed:2","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.811Z"},{"id":"alj-H300312-2024-04-23","awccNumber":"H300312","decisionDate":"2024-04-23","decisionYear":2024,"opinionType":"alj","claimantName":"Tab Ogden","employerName":"Mcdonald’s/buckliew Enterprises","title":"OGDEN VS. MCDONALD’S/BUCKLIEW ENTERPRISES AWCC# H300312 APRIL 23, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/OGDEN_TAB_H300312_20240423.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OGDEN_TAB_H300312_20240423.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H300312 \n \nTAB OGDEN, Employee CLAIMANT \n \nMCDONALD’S/BUCKLIEW ENTERPRISES, Employer RESPONDENT \n \nRISK MANAGEMENT RESOURES, Carrier RESPONDENT \n \n \n \n OPINION FILED APRIL 23, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in Harrison, Boone \nCounty, Arkansas. \n \nClaimant  represented  by FREDERICK  S.  SPENCER,  Attorney  at  Law, Mountain  Home, \nArkansas. \n \nRespondents  represented  by CAROL  LOCKARD  WORLEY,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On January  29,  2024,  the  above  captioned  claim  came  on  for  a  hearing  at Harrison, \nArkansas.      A  pre-hearing  conference  was  conducted  on October  9,  2023,  and  a  Pre-hearing \nOrder  was  filed  on October  10,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The   relationship   of   employee-employer-carrier   existed   between   the   parties on \nNovember 21, 2022. \n 3. The respondents have controverted the claim in its entirety. \n By agreement of the parties the issues to litigate are limited to the following: \n\nOgden – H300312 \n \n-2- \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  his  right  shoulder  on  or  about \nNovember 21, 2022. \n 2. Whether Claimant is  entitled to medical treatment for his compensable right shoulder \ninjury. \n 3.  Respondents  raise  lack  of  notice  as  a  defense  in  that  December  1,  2022,  was  the  first \nnotice of any alleged work-related injury. \n The claimant's contentions are as follows: \n“The   Claimant   sustained   a   compensable   injury   to   his   right \nshoulder.  The  Claimant  contends  that  he  was  attacked  by  another \nemployee  as  he  was  performing  employment  services  for  the \nrespondent employer. The Claimant contends that he did nothing to \ninstigate the attack. \n \nThe  Claimant  contends  that  he  is  entitled  to  reasonable   and \nnecessary medical treatment by Dr. Cutler and Dr. Sidani. \n \nThe Claimant contends he is entitled to past TTD benefits (dates to \nbe determined). \n \nThe  Claimant  contends  that  he  is  entitled  to  an  impairment  rating \nrelated  to  the  surgery  he  had  on  his  right  shoulder.  The  Claimant \ncontends that he is  entitled to permanent partial  disability benefits \nrelated to the rating.” \n \n The respondents’ contentions are as follows: \n“Respondents contend that Claimant did not suffer a compensable \ninjury  on  or  about  11/21/22.  Respondents  contend  they  did  not \nreceive  notice  of  any  claimed  injury  until  12/1/22  and  that  they \nwould not be liable for any benefits prior to receipt of actual notice \nof   injury   in   the   event   compensability   is   found.   Respondents \ncontend  that  Claimant’s  need  for  medical  treatment,  if  any,  is \nassociated  with  preexisting  and  underlying  problems  and  not  any \nacute injury while working for Respondent/Employer.” \n \n The  claimant  in  this  matter  is  a 38-year-old  male who  alleges  to  have  sustained  a \ncompensable  right  shoulder  injury  when  he  was  involved  in  an  altercation  he  alleges  to  have \n\nOgden – H300312 \n \n-3- \noccurred on November 21, 2022, between himself and another employee. The claimant identified \nthe other employee as Nick D’Angelo. Both the claimant and Mr. D’Angelo were working in the \nrespondent’s kitchen on November 21, 2022.  \n On direct examination the claimant described the altercation he alleges as follows: \nQ Okay.   So   sometime   after   that   point   in   time,   what \nhappened? \n \nA Well,  Nick  attacked  me.  He  grabbed  my  arm,  and  he \ntwisted  and  jerked  and  popped  and  he  and – and  he  was – I  think \nhe was drunk, and I’ve never been attacked before at a job and he – \nI didn’t even have a reason why he attacked me. \n \nQ How do you think – why do you think he was drunk? \n \nA Because I could smell alcohol on his breath; that’s why. \n \nQ Did his demeanor indicate he was mad at you or just mad at \n– what caused him to do it? Do you have any idea of why he did it? \n \nA I think just to hurt me. \n \nQ Why? \n \nA I don’t – that’s the reason I don’t know. I don’t know why \npeople  don’t  like  one  person  or  another.  Jealousy,  maybe,  or  I \ndon’t know, you know. I don’t know what causes people to hate \none person. \n \nQ Had  you  ever  had  an  altercation  or  problems  with  this \nemployee before? \n \nA No. In fact, I always liked him. \n \n The  claimant  was  questioned  on  direct  examination  about  his  reporting  of  the  alleged \naltercation as follows: \nQ As a result of that, did you tell your employer immediately \nwhen  it  happened,  or  was  it  later  in  the  day,  or  was  it  later  in  the \nweek, or what? \n \n\nOgden – H300312 \n \n-4- \nA As soon as  I – when  I went to leave that day,  I – we were \nswamped  all  day,  like,  I  don’t  know  why  it  seems  like  when \nsomething  happens  you  get  so  busy  that  you – I  call  it  taking \nbullets, you know, making a thousand burritos and everything else \nthat we do, sandwiches. We got so busy and then at the end of the \nday I told Tonya I said, “Tonya, I’d make a report. Nick attacked \nme this morning.” And she said, “Are you hurt?” And I said, “I \ndon’t even know yet.” But I was in like a different kind of pain \nthen. \n \nQ When  he  attacked  you,  how  do  you  know  that  something \nwas hurt? \n \nA Because something popped and I was going to try toughing \nit out because I’m a tough person. I mean look at my build. I mean \nI’m not a weakling. And... \n \nQ How tall are you? \n \nA I’m five-eleven. \n \nQ How much do you weigh? \n \nA Probably 199 now. \n \nQ And so you felt a pop? \n \nA Yes, sir. \n \nQ And you said, “It was a different pain.” And how was it \ndifferent? \n \nA Like I couldn’t no longer lift my arm up, like I had full \nfunction. Can I demonstrate? \n \nQ Sure. \n \nA I can – when I lift up my arm, I can lift my arm up like this \nnow.  And  I  could  before  he  attacked  me.  After  he  attacked  me,  I \ncould only lift it this high. \n \n While  the  claimant  did  report  the  alleged  altercation  at  the  end  of  the  day  in  which  he \nalleges  it  occurred,  he  did  not  report  an  alleged  injury  from  that  alleged  altercation  until \n\nOgden – H300312 \n \n-5- \nDecember 1 or December 2, 2022. Following is a portion of the claimant’s cross examination \ntestimony: \nQ Okay. And you told the – you told the judge on direct you \nwere at the doctor within a day of the accident. There’s no medical \nrecords in November. You didn’t go to a doctor until after you \nstarted saying you had a work injury on December 1\nst\n, right? \n \nA The work – I was going to the doctor prior for the pain. \n \nQ Okay. I’m talking about between November 21\nst\n and when \nyou  first  reported  an  injury  on  the  1\nst\n of December. There’s no \ndoctor visits in that window of time, right? \n \nA I  did  report  the  attack  and  stuff  to  Tonya  Mosley,  and  the \nvery next day I wrote out a statement and gave it to her. \n \nQ Okay.  Reporting  the  attack  and  reporting  a  work-related \ninjury are two different things. Don’t you agree with that? \n \nA Reporting an incident is the same thing. \n \nQ Okay.  In  the  report  of  an  incident,  you  did  not  report  that \nyou were injured in any way. You’ve already agreed with me on \nthat. \n \nA I told her I wasn’t sure. \n \nQ In  your  deposition  under  oath,  you  told  me  December  1\nst\n \nwas the first time. Are you going back on that testimony? \n \nA The first time that I had when to the doctor over the injury? \n \nQ No,  you  told  me  December  1\nst\n was  the  first  time  you \nreported a work injury to anyone at McDonald’s under oath at your \ndeposition. Are you changing your – \n \nA. Okay. No. \n \nQ Let me finish my question, please. \n \nA Okay. \n \nQ Are you changing your testimony today? \n\nOgden – H300312 \n \n-6- \n \nA No. I think I can stick with that. \n \nQ Okay.   Now   in-between   the   21\nst\n of   November   and \nDecember 1\nst\n when you finally tell Tonya that you were saying you \nwere  hurt,  you  were  working  your  regular  duty,  regular  hours, \nregular shifts, right? \n \nA Yes. \n \n The respondent called Tonya Mosley as a witness. Ms. Mosley is the general manager for \nthe respondent’s facility where the claimant alleges the altercation on November 21, 2022, to \nhave occurred. Following is a portion of Ms. Mosley’s direct examination testimony about the \nclaimant’s reporting of the alleged altercation: \nQ Mr.  Ogden  has  testified  multiple  times  today  that  he  told \nyou he didn’t know if he was hurt on the day of the incident. Did \nhe make any type of statement like that to you? \n \nA No, sir. \n \nQ On the 21\nst\n? \n \nA No, sir. \n \nA Did  he  report  an  incident  of  Nick D’Angelo putting  his \nhands on him? \n \nA Yes. \n \nQ Was  there  any  mention  by  Mr.  Ogden  of  being  hurt  or \nthinking he was hurt – \n \nA No. \n \nQ -- with regard to his right shoulder? \n \nA No. \n \nQ Did you hear anything about him saying he had any injury \nbecause of being touched by Nick D’Angelo before December 1\nst\n, \n2022? \n\nOgden – H300312 \n \n-7- \n \nA No. \n \nQ And  did  you  work  with  Nick  on  a  day-in/day-out  basis  or \non  a  regular  basis  in  that  window  of  time  between  the  21\nst\n and \nDecember 1\nst\n? \n \nA Yes. \n \n A First Report  of Injury  is  found  at  Respondents’  Exhibit  2,  page  6, regarding  the \nclaimant’s allegation of injury to his right shoulder from the November 21, 2022, altercation he \nalleges. That First Report of Injury is marked as received on December 2, 2022.  \n The  first  medical  record  in  evidence  after  November  21,  2022,  is  a  visit  note  from \nArkansas Orthopedics Sports Medicine in Harrison, Arkansas. Following is a portion of that visit \nnote: \nImpression/Plan: \nThis  37-year-old  male  well-known  to  us  after  performing  a  AC \nreconstruction a revision a reconstruction several years ago is here \nwith  chief  complaint  of  right  shoulder  injury.  He  states  he  was \ninvolved  in  an  altercation  a  few  weeks  ago  he  got  his  right \nshoulder  injured. He  had  gone  to  formal  physical  therapy  and  he \nstates  it  helped  a  little  bit  but  is  having  quite  a  bit  of  pain  and \nweakness. \n \nPhysical exam right shoulder shows prominence over the AC joint \nwith  feelings  of  instability.  He  has  positive  supraspinatus  and \nJobes  testing.  Negative  Spurling’s.  He  has  5/5  strength  biceps \ntesting.  He  has  full  range  of  motion.  Forward  flexion  180  degrees \nexternal rotation to 45. \n \nX-rays  3  views  of  the  right  shoulder  today  show  some  superior \nmigration  of  his  clavicle  and  possibly  some  migration  of  his \nretention button. \n \nAssessment  and  plan,  right  shoulder  injury  he  may  have  stretched \nhis donor graft or the repair may have failed possibly has a rotator \ncuff injury due to the altercation he was in. He has been already in \nformal  physical  therapy.  At  this  point  we  have  recommended  an \n\nOgden – H300312 \n \n-8- \nMRI of his right shoulder. We will make further recommendations \npending the studies. \n \n On  December  28,  2022,  the  claimant  underwent  an  MRI  of  the  right  shoulder  at  North \nArkansas  Regional  Medical  Center  in  Harrison,  Arkansas.  Following  is  a  portion  of  that \ndiagnostic report: \nFINDINGS:    Postsurgical    changes    are    seen    of    AC    joint \nreconstruction. The supraspinatus, infraspinatus, and subscapularis \nare intact. The biceps tendon is well seated in the bicipital groove \nand shows appropriate labral attachment. Degenerative changes are \nseen  involving  the  posterior  glenoid  with  likely  labral  tear.  Joint \ncapsule is slightly thickened. \n \nIMPRESSION:   Possible   tear   of   the   posterior   labrum   with \nassociated  degenerative  changes  of  dislocation.  Joint  capsule  is \nthickened raising the possibility of adhesive capsulitis. Postsurgical \nchanges are seen of AC joint reconstruction. \n \n On  December  29,  2022,  the  claimant  was  seen  by  Dr.  Tarik Sidani  of  Arkansas \nOrthopedics and Sports Medicine. Dr. Sidani recommended surgical intervention at that time for \nthe claimant’s right shoulder. Following is portion of that medical record: \nChief Complaint: Right shoulder \n \nHPI:  This  is  a  37  year  old  male  who  is  being  seen  for  a  chief \ncomplaint of Right shoulder, post MRI rt shoulder Dec. 28 @ 4pm \nchkin @ NARMC. \n \nImpression/Plan \nMRI follow-up right shoulder. \n \nPhysical  examination  shows  a  deformity  at  the  AC  joint  gross \ninstability  here  exquisite  tenderness  palpation  over  the  posterior \naspect  of  the  clavicle  prominent  hardware  shoulder  joint  itself \nshows  negative  supraspinatus  sign  negative  biceps  maneuvers  no \ninstability posterior or anteriorly negative labral maneuvers. \n \nMRIs reviewed as well as plain film x-rays shows redislocation of \nthe  AC  joint  with  hardware  pulled  through  the  coracoid  process \nradiologist   reading   this   is   possible   posterior   labral   tear   and \n\nOgden – H300312 \n \n-9- \nunimpressed by this he also has advanced degenerative changes of \nthe distal clavicle. \n \nAssessment  plan  recurrent  AC  separation  at  this  patient’s  age \nactivity level and amount of instability and dislocation at this point \nwill  recommend  revulsion  surgery  risks  benefits  potential  case \npostoperative  course  healing  times  and  restrictions  to  lifting  were \nall  discussed  he  understands  like  proceed  we  will  get  him  on  the \nschedule  for  right  AC  reconstruction  and  distal  clavicle  excision \nutilizing semitendinosus allograft. \n \n On  February  10,  2023,  the  claimant  underwent  surgical  intervention  at  the  hands  of  Dr. \nSidani. Following is a portion of that operative report: \nPREOPERATIVE DIAGNOSIS: \n1. Recurrent AC separation right shoulder \n2. Acromioclavicular arthritis right shoulder \n \nPOSTOPERATIVE DIAGNOSIS: \n1. Recurrent AC separation right shoulder \n2. Acromioclavicular arthritis right shoulder \n \nPROCEDURE: \n1. Revision  reconstruction  right  AC  joint  and  coracoclavicular \nligaments \n2. Distal clavicle excision, open \n \n The   claimant   has   returned   to   work   for   the   respondent   and   was   asked   on   direct \nexamination about his “ability after the surgery.” \nQ Tell  the  judge  in  your  own  words  what  has  happened  in \nterms  of  your  ability  after  the  surgery.  Have  you  been  able  to  go \nback to work at McDonald’s? \n \nA Yes, sir. Your Honor, I was attacked at McDonald’s, and \nthese  are  in  my  own  words.  I  was  attacked  by  Nick D’Angelo.  I \ndidn’t know his last name, but he attacked me. He jerked my left or \nright arm, I don’t even remember this, but the way that he jerked \nme, he popped something and tore my arm off. I mean – and I have \nworked at McDonald’s for two years prior, and I’ve continued to \nwork there afterwards on this. \n \n\nOgden – H300312 \n \n-10- \n The claimant has had serious difficulties with his right shoulder prior to the alleged injury \non  November  21,  2022. On  direct  examination  the  claimant  discussed  his  prior  right  shoulder \ndifficulties as follows: \nQ Now, Tab, one of the things that – one of the questions that \nwe  have  is  that  you  had  had  prior  problems  with  your  right \nshoulder before this injury and you’ve not really denied that, have \nyou? \n \nA No, I don’t deny that at all. In fact, it hurts right now. I \nthink I’m going to have to live with the pain all my life. \n \nQ But  did  you  ever  lose  any  time  or  have  any  problems \nassociated  with  the  shoulder  that  interfered  with  your  ability  to \nwork prior to November 21 of 2022? \n \nA No, sir. \n \nQ But you did have a surgery, did you not, beforehand? \n \nA Yes, I think – I believe two prior surgeries. \n \nQ And to the right shoulder? \n \nA Yes, sir. \n \nQ And  you  worked  there  for  approximately,  what,  two  years \nwhen the injury occurred? \n \nA Two years, I’d say. \n \n On   cross   examination   the   claimant   was   also   questioned   about   his  right   shoulder \ndifficulties before his alleged November 21, 2022, injury as follows: \nQ Mr. Ogden, I want to talk to you in more detail about your \nproblems before November 21\nst\n of 2022. You wrecked a bicycle in \n2018 and had a pretty severe shoulder separation, correct? \n \nA Yes. \n \nQ And you had to have surgery with Dr. Sidani? \n \n\nOgden – H300312 \n \n-11- \nA I believe so. \n \nQ Alright.  And  going  forward  from  there  you  told  me  your \nshoulder hurt all the time, correct? \n \nA Yes. \n \nQ Alright.  It  popped  again  that  same  year  while  you  were  in \njail,   and   your   shoulder   and   neck   started   hurting,   and   they \ndetermined you had another complete separation; correct? \n \nA Yes, sir. \n \nQ You had to have a second operation with Dr. Sidani, right? \n \nA Yes, sir. \n \nQ And coming out of that  second operation you continued to \nhave severe ongoing pain in that right shoulder, right? \n \nA Correct. \n \nQ Alright. You told me it hurt all the time, and it was hurting \nwithin the seven days leading up to November 21\nst\n, 2022, right? \n \nA Yes, sir. \n \nQ And you explained it was a 10 out of 10 on a pain scale for \nat least six months before this accident, right? \n \nA Yes, sir. \n \nQ And if 10 is the max on the pain scale, you can’t get any \nworse than 10 out of 10, can you? \n \nA I don’t think so. \n \nQ Okay.  And  you  confessed  here  on  direct  you  were  already \nseeing  a  pain  specialist  for  the  shoulder  before  November  21\nst\n, \n2022, right? \n \nA Yes. Yes, sir. \n*** \n\nOgden – H300312 \n \n-12- \nQ You’ve  consistently  complained  of severe  right  shoulder \npain  and  neck  pain  from  2018  all  the  way  up  to  this  incident  on \nNovember 21\nst\n, 2022, right? \n \nA Yes, sir. \n \nQ And you explained the pain you have had before November \n21\nst\n,  2022,  was  going  through  the  collar  bone/clavicle  into  the \nshoulder, right? \n \nA What I believe is that, those body parts. \n \n The  respondent  has  also  introduced  several  medical  records  dating  from  September  10, \n2018, through October 20, 2022, that well document the claimant’s long history of right shoulder \ndifficulties. In fact, the claimant was actively treating for his right shoulder about a month before \nthe November 21, 2022, injury he alleges. \n It is the claimant’s burden to prove that he sustained a compensable right shoulder injury \non  November  21,  2022,  during  the  altercation  he  alleges  to  have  occurred  between  himself  and \nMr. D’Angelo.  \nIn  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \nevidence  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;  (3)  medical  evidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n The  respondents  called  Ms.  Adriane Green  as  a  witness  in  this  matter. Ms.  Green  is \ncurrently  a  general  manager  for  the  respondent  but  served  as  a  district  manager  for  the \nrespondent  in  November  of  2022  which  included  the  responsibility  for the facility  the  claimant \n\nOgden – H300312 \n \n-13- \nalleges  the  November  21,  2022,  altercation  and  injury  to  have  occurred.  Ms.  Green  gave  direct \nexamination  testimony  about  her  interaction  with  the  claimant  about  the  alleged  altercation  and \nobtaining video of the alleged altercation as follows: \nQ Had you received any report that Mr. Ogden was saying he \nhad been hurt at work before December 1\nst\n, 2022? \n \nA I don’t believe so. I got a phone call from Tonya, saying \nhey, I need to come up there. I think that was about the first. \n \nQ And these conversations Mr. Ogden is talking about where \nyou – you’re talking about the incident, you’re looking at video, \nyou’re talking about going to doctors, is that after December 1\nst\n, on \nor after December 1\nst\n? \n \nA It  was  on  or  after.  Yeah.  Because  I  had  to  have  him  come \nup there and show me the incident, where it happened. \n \nQ Okay. I’ve introduced a video for the judge to watch and I \nhave it here on my iPad, and we’ll look at it here in a minute. Did \nyou produce or procure that video? \n \nA Yes, I did. \n \nQ And did you share that with Mr. Ogden in the course of the \ninvestigation – \n \nA Yes, I did. \n \nQ -- we were just talking about? Did he look at the video with \nyou? \n \nA Yes. \n \nQ And did he agree that this video that we have was what he \nwas talking about as far as – \n \nA Yes. \n \nQ -- it   being   an   attack   or   an   incident   involving   Nick \nD’Angelo? \n \nA Yes. \n\nOgden – H300312 \n \n-14- \n \n The video was played during the hearing and this administrative law judge has reviewed \nit  multiple  times  in  preparation  for  issuing  a  decision.  Mr. D’Angelo is  in  a  black  shirt  and  the \nclaimant is wearing a blue shirt. At one point in the relatively short video, around the 49 second \nmark, Mr. D’Angelo does appear to very briefly lay a hand on the claimant’s right shoulder, but I \nfind  no  force  being  used.  It  is  certainly  a  better  descriptor  to  say  it  was  a  gentle  touch  than  a \nforceful  touch  of  the  right  shoulder.  At  roughly  the  one-minute  mark,  Mr. D’Angelo does  use \nboth hands to pull downward on the claimant’s left arm. But frankly, it does not appear to have \nmuch force or effect on the claimant. During the remainder of the video, it does not appear that \nthe two men have any physical contact. I also note it does not appear that the claimant is in any \nphysical distress. The only pull or tug to the claimant’s body by Mr. D’Angelo is to his left arm, \nnot his right.  \nThe claimant was asked on cross examination about the video as follows: \nQ Okay. You’ve seen a video of the incident that you have \ndescribed here today with Nick grabbing you, correct? \n \nA Yes, when Adriane showed it to me. I think that’s the only \ntime I’ve seen it prior. \n \nQ So  you  watched  it  with  Adriane who  was  sitting  next  to \nme? \n \nA Yes, sir. \n \nQ And you don’t dispute that what you two guys watched on \nthe video is the incident you are talking about with Nick, right? \n \nA That’s me getting attacked, yes, sir. \n \n The claimant can certainly show objective medical findings regarding this right shoulder, \nparticularly   given   his   history   of   right   shoulder   treatment,   including   two   prior   surgical \n\nOgden – H300312 \n \n-15- \ninterventions.  However,  the  claimant  cannot  prove  a  causal  relationship  between  any  objective \nmedical findings regarding his right shoulder and the November 21, 2022, altercation he alleges. \nIt is not possible for a reasonable person to view the video evidence of the altercation he alleges \non November 21, 2022, and conclude that his right shoulder was injured or even affected in some \nway.  The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained  a \ncompensable  right  shoulder  injury  on  or  about  November  21,  2022.  As  the  claimant  has  been \nunable to prove that he sustained a compensable injury to his right shoulder, he is also unable to \nprove  his  entitlement  to  medical  treatment  for  his  right  shoulder.  The  respondents  have  also \nraised the lack of notice defense in this matter. Given that the claimant failed to prove his alleged \nright shoulder injury compensable, the respondent’s lack of notice defense is moot. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses and  to  observe their demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nOctober  9,  2023,  and  contained  in  a  Pre-hearing  Order  filed October  10,  2023,  are  hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained a \ncompensable injury to his right shoulder on or about November 21, 2022. \n 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto medical treatment for his right shoulder. \n 4. The respondent’s defense of lack of notice is moot. \n\nOgden – H300312 \n \n-16- \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":25729,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H300312 TAB OGDEN, Employee CLAIMANT MCDONALD’S/BUCKLIEW ENTERPRISES, Employer RESPONDENT RISK MANAGEMENT RESOURES, Carrier RESPONDENT OPINION FILED APRIL 23, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Harrison, Boone County, Arkansas. Cl...","outcome":"denied","outcomeKeywords":["denied:3"],"injuryKeywords":["shoulder","back","neck"],"fetchedAt":"2026-05-19T22:55:38.393Z"},{"id":"alj-H305232-2024-04-23","awccNumber":"H305232","decisionDate":"2024-04-23","decisionYear":2024,"opinionType":"alj","claimantName":"James Houston","employerName":"Integrity Foundation Repair LLC","title":"HOUSTON VS. INTEGRITY FOUNDATION REPAIR LLC AWCC# H305232 APRIL 23, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HOUSTON_JAMES_H305232_20240423.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOUSTON_JAMES_H305232_20240423.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H305232 \n \nJAMES HOUSTON, EMPLOYEE   CLAIMANT \n \nINTEGRITY FOUNDATION REPAIR LLC, EMPLOYER RESPONDENT \n \nSTONETRUST INSURANCE /INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED APRIL 25, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith,  Sebastian \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by ZACHARY RYBURN, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  August 15, 2023, claimant filed Form AR-C, alleging a compensable injury on July 18, \n2023.   Claimant was not represented by an attorney when the AR-C was filed, and is still pro se.   \nOn February 16, 2024, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for \nApril  16,  2024.    Notice  of  the  scheduled  hearing  was  sent  to claimant  by  certified  mail  at  the  last \nknown address in the Commission’s file.  The notice was delivered to claimant on February 23, 2024.   \nClaimant did not respond to Respondent’s motion and did not appear in person at the hearing on \nApril 16, 2024.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the respondent’s motion, as well as all other matters \n\nHouston-H305232 \n \n2 \n \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                    \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2080,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305232 JAMES HOUSTON, EMPLOYEE CLAIMANT INTEGRITY FOUNDATION REPAIR LLC, EMPLOYER RESPONDENT STONETRUST INSURANCE /INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED APRIL 25, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebast...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:40.454Z"},{"id":"full_commission-H104889-2024-04-18","awccNumber":"H104889","decisionDate":"2024-04-18","decisionYear":2024,"opinionType":"full_commission","claimantName":"Ruth Escobedo","employerName":"Jake’s Janitorial Services","title":"ESCOBEDO VS. JAKE’S JANITORIAL SERVICES AWCC# H104889 APRIL 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Escobedo_Ruth_H104889_20240418.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Escobedo_Ruth_H104889_20240418.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H104889 \n \nRUTH ESCOBEDO, EMPLOYEE              CLAIMANT \n \nJAKE’S JANITORIAL SERVICES,  \nUNINSURED EMPLOYER RESPONDENT NO. 1 \n \nUNIVERSITY OF ARKANSAS,  \nEMPLOYER RESPONDENT NO. 2 \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nINSURANCE CARRIER/TPA RESPONDENT NO. 2 \n \nABSOLUTE JANITORIAL,  \nUNINSURED EMPLOYER                                                    RESPONDENT NO. 3 \n \nOPINION FILED APRIL 18, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents No. 1 appearing Pro Se. \n \nRespondents No. 2 represented by the HONORABLE ROBERT H. \nMONTGOMERY, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 3 represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed June 5,  \n\n \nESCOBEDO - H104889  2\n  \n \n \n2023.  Respondent No. 2 and Respondent No. 3 cross-appeal.  The \nadministrative law judge entered the following findings of fact and conclusions of \nlaw: \n1. The stipulations agreed to by the parties at the pre-hearing conference \nconducted on April 6, 2022, and contained in a Pre-hearing Order filed \nApril 6, 2022, are hereby accepted as fact. \n \n2. The   claimant   proved   by   a   preponderance   of   the   evidence   that \nRespondent No. 1, Jake’s Janitorial Services, and the claimant had an \nemployee/employer relationship on November 12, 2019.   \n \n3. The  claimant  failed  to  prove  by  a  preponderance  of  the  evidence  that \nRespondent No. 2, the University of Arkansas, and the claimant had an \nemployee/employer relationship. \n \n4. The  claimant  failed  to  prove  by  a  preponderance  of  the  evidence  that \nRespondent   No.   3,   Absolute   Janitorial,   and   the   claimant   had   an \nemployee/employment relationship.   \n \n5. The   claimant   proved   by   a   preponderance   of   the   evidence   that \nRespondent  No.  3,  Absolute  Janitorial,  has  liability  for  any  and  all \ncompensation awarded to the claimant through her employee/employer \nrelationship with Respondent No. 1, Jake’s Janitorial Services,  for  her \nNovember 12, 2019, compensable left knee injury under ACA §11-9-402. \n \n6. The  claimant  proved  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her left knee on November 12, 2019, \nwhile an employee of Respondent No. 1, Jake’s Janitorial Services.   \n \n7. The  claimant proved  by  a  preponderance  of the  evidence  that medical \ntreatment  admitted  into  evidence  by  the  parties  is  reasonable  and \nnecessary medical treatment for the claimant’s compensable left knee \ninjury.    The  claimant  also  proved  by  a  preponderance of  the  evidence \nthat  the  medical  treatment  recommended  by  Dr.  Arnold,  including \nsurgical intervention, is reasonable and necessary treatment. \n \n\n \nESCOBEDO - H104889  3\n  \n \n \n8. The claimant failed to prove by a preponderance of the evidence that she \nis entitled to temporary total disability benefits from January 10, 2021, to \na date yet to be determined. \n \n9. The issue of attorney’s fees and compensation rates are moot. \n \n10. The  defense  of  Notice  raised  by  Respondent  No.  2,  the  University  of \nArkansas, and Respondent No. 3, Absolute Janitorial, are moot.   \n \n After reviewing the entire record de novo, it is our opinion that the \nadministrative law judge’s June 5, 2023 decision is supported by a preponderance \nof the evidence, correctly applies the law, and should be affirmed.  The Full \nCommission notes the correct citation of two cases cited in the administrative law \njudge’s opinion:  Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 \n(1996); and Bailey v. Simmons, 6 Ark. App. 193, 639 S.W.2d 526 (1982).  We \notherwise find that the administrative law judge’s findings of fact and conclusions \nof law are correct and are therefore adopted by the Full Commission.   \n Therefore, we affirm and adopt the decision of the administrative law judge, \nincluding all findings and conclusions therein, as the opinion of the Full \nCommission on appeal.  For prevailing in part on appeal, the claimant’s attorney is \nentitled to a fee of five hundred dollars ($500) in accordance with Ark. Code Ann. \n§11-9-715(b)(1)(Repl. 2012).  Respondent No. 3, Absolute Janitorial, shall be \nliable for said fee.   \n \n \n\n \nESCOBEDO - H104889  4\n  \n \n \nIT IS SO ORDERED.   \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion finding that the claimant has \nproven by a preponderance of the credible evidence that she was performing \nemployment services and suffered a compensable left knee injury resulting from a \nfall outside of her vehicle while working for Jake’s Janitorial Services on \nNovember 12, 2019. \nOur rules define a compensable injury as \"[a]n accidental injury . . . arising \nout of and in the course of employment.\"  Ark. Code Ann. § 11-9-102(4)(A)(i).  A \ncompensable injury does not include an \"[i]njury which was inflicted upon the \nemployee at a time when employment services were not being performed.\"  Ark. \nCode Ann. § 11-9-102(4)(B)(iii).  The Act, however, fails to define the phrase \"in \n\n \nESCOBEDO - H104889  5\n  \n \n \nthe course of employment\" or the term \"employment services.\"  Wood v. Wendy's \nOld Fashioned Hamburgers, 2010 Ark. App. 307, 374 S.W.3d 785 (2010).  \nOur Supreme Court has held that an employee is performing \"employment \nservices\" when he or she \"is doing something that is generally required by his or \nher employer.\"  Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 \n(2008).  \nThe Commission uses the same test to determine whether an employee \nwas performing employment services as we do when determining whether an \nemployee was acting within the course of employment.  Id.  Specifically, it has \nbeen held that the test is whether the injury occurred \"within the time and space \nboundaries of the employment, when the employee [was] carrying out the \nemployer's purpose or advancing the employer's interest directly or indirectly.\"  Id. \nThe critical inquiry is whether the interests of the employer were being directly or \nindirectly advanced by the employee at the time of the injury.  Id.  The issue of \nwhether an employee was performing employment services within the course of \nemployment depends on the particular facts and circumstances of each case.  Id.  \nIn short, an employee is performing employment services when engaged in \nthe primary activity that he or she was hired to perform, or in incidental activities \nthat are inherently necessary for the performance of the primary activity, or when \n\n \nESCOBEDO - H104889  6\n  \n \n \nan employee is performing employment services when he or she is engaging in \nan activity that carries out the employer's purpose or advances the employer's \ninterests.  Olsten Kimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 \n(1997); Hightower v. Newark Pub. Sch. Sys., 57 Ark. App. 159, 943 S.W.2d 608 \n(1997). \nAn employee is generally not said to be acting within the course of \nemployment when he is traveling to or from the workplace, and thus, the \"going \nand coming rule\" ordinarily precludes compensation for injuries sustained while an \nemployee is going to or returning from his place of employment.  Linton v. Ark. \nDep't of Corr., 87 Ark. App. 263,190 S.W.3d 275 (2004).  However, there are \nexceptions to the \"going and coming rule\" where the journey itself is part of the \nemployment service, such as traveling men on a business trip and employees \nwho must travel from job site to job site.  Id.  Whether an employer requires an \nemployee to do something has been dispositive of whether that activity \nconstituted employment services.  Campbell v. Randal Tyler Ford Mercury, Inc., \n70 Ark. App. 35, 13 S.W.3d 916 (2000). \nIn the present case, the claimant’s time sheets in the record reflect that her \nwork began inside the Pike house at 7:00 a.m. and mention nothing about the \nDuncan Street Apartments.  The going and coming rule clearly applies.  (Resp. \nEx. 1, Pp. 2-9; Hrng. Tr., Pp. 40-41).  Although the claimant asserted at the \n\n \nESCOBEDO - H104889  7\n  \n \n \nhearing that “sometimes we went outside to clean or pick up trash,” her \nsupervisor, Lena Phillips, stated, unequivocally, that “[w]e did not do anything \noutside of the building” and that “[w]e do not clean the outside of the buildings at \nall.” (Hrng. Tr, Pp. 35, 51).  Their work was strictly inside of the campus buildings. \n(Hrng. Tr., P. 51).  Regardless, the claimant was not scheduled to do any exterior \nwork.  (Hrng. Tr., P. 35).  \nAt the time of her injury, the claimant was merely getting out of her car \nwhen she fell in the parking lot on her way to begin her work day at 7:00 a.m. \ninside the PKA House.  The tools for her job were inside of the building and all of \nthe work to be done was inside of the building.  The record reflects the claimant \nhad not begun her work day at the Pike House prior to her injury.  For these \nreasons, I find that the claimant was not performing employment services at the \ntime of her injury and, therefore, her claim is not compensable. \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":9766,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H104889 RUTH ESCOBEDO, EMPLOYEE CLAIMANT JAKE’S JANITORIAL SERVICES, UNINSURED EMPLOYER RESPONDENT NO. 1 UNIVERSITY OF ARKANSAS, EMPLOYER RESPONDENT NO. 2 PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT NO. 2...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:29:45.775Z"},{"id":"full_commission-H200936-2024-04-18","awccNumber":"H200936","decisionDate":"2024-04-18","decisionYear":2024,"opinionType":"full_commission","claimantName":"Melvin Thompson","employerName":null,"title":"THOMPSON VS.CITY OF HELENA WEST HELENA AWCC# H200936 APRIL 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Thompson_Melvin_H200936_20240418.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Thompson_Melvin_H200936_20240418.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H200936 \n \nMELVIN THOMPSON, \nEMPLOYEE \n \nCLAIMANT \nCITY OF HELENA WEST HELENA,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS MUNICIPAL LEAGUE WCT, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 18, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE KENNETH A. OLSEN, Attorney \nat Law, Bryant, Arkansas. \n \nRespondents represented by the HONORABLE MARY K. EDWARDS, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nOctober 10, 2023.  The administrative law judge found that the claimant \nfailed to prove he was entitled to additional benefits or medical treatment.  \nAfter reviewing the entire record de novo, the Full Commission finds that \nthe claimant proved by a preponderance of the evidence that he sustained \na compensable injury.  The claimant proved that he was entitled to \nadditional medical treatment and temporary total disability benefits.     \nI.  HISTORY \n\nTHOMPSON - H200936  2\n  \n \n \n Melvin James Thompson, now age 56, testified that he sustained a \nback injury in about 2014 while working for another employer.  The record \nindicates that Mr. Thompson treated at Lee County Cooperative Clinic \nbeginning in May 2014.  The claimant complained of lower back pain.  It \nwas noted, “c/o MVA last AUG and re-injury of back on job but did not have \ninsurance to get it checked out.”  An APRN’s assessment in May 2014 \nincluded “Sciatica.”   \n Dr. Harry Andre Michel’s assessment in June 2014 included “Sprain \nand strain of lumbosacral (joint)(ligament)” and “Lumbago”  Dr. Justin \nSeale’s assessment in July 2014 was “1.  Diffuse degenerative disc \ndisease, worse at L2-3 with axial back pain.  2.  Mild scoliosis.”   \nThe claimant continued to periodically follow up with Dr. Michel for \ncomplaints of low back pain.  Dr. Michel assessed “7.  Spasm of muscle” in \nMarch and April 2015.  Dr. Michel assessed “4.  Spasm of muscle of lower \nback” on July 22, 2019.  Dr. Michel assessed “3.  Muscle spasm” on \nDecember 2, 2019.         \n The claimant testified that he became employed with the \nrespondents, City of Helena/West Helena, in about 2021.  The parties \ninitially stipulated that “an employer/employee relationship existed on \nJanuary 11, 2022, when the claimant sustained a back injury.”  The \nclaimant testified on direct examination: \n\nTHOMPSON - H200936  3\n  \n \n \n Q.  Would you briefly say how and when you got hurt? \nA.  Yes.  On January 11\nth\n, and we’re on garbage detail, and \nwe got to a resident, where the house was under instruction, \nconstruction, and I went to get the can and I couldn’t move it.  \nSo another co-worker came to help with it, and we both \ncouldn’t pull it.  They had like, you know, bricks in there and \nmud and drywall.  So we both had to get it on the wheel and \npull it to the – they have a front-loader with it, like a \ncommercial dumpster that they have at the grocery stores, \nbecause the garbage truck arm didn’t work, the robotic arm.  \nSo we had to do it manually.  So we got in front of the big \ncommercial dumpster, and we tried to lift it and we couldn’t lift \nit....So we got ready to tilt it, and some of it started sliding out \nand he just walked off, and it tilted over and it had me bent \nover it....So the next day, I couldn’t get out of bed, I was in so \nmuch pain.  So I called my supervisor at 5:30, 6:00, and they \ninstructed me to go to the hospital.   \n \n According to the record, the claimant was treated at Helena Regional \nMedical Center on January 12, 2022, at which time the diagnosis was \n“Sprain of ligaments of cervical spine, initial encounter; Sprain of ligaments \nof lumbar spine.”  It was noted, “Patient states:  that he works for the city \nsanitation and he has been having to lift trash cans for the past 2 weeks.  \nReports that his back and neck is hurting.”  Dr. Shakeb Hashmi \ndocumented the following on January 12, 2022: \nThe patient presents with pain that is acute.  The symptoms \nare located in the low back, left neck.  Onset:  The \nsymptoms/episode began/occurred 2 day(s) ago, and became \npersistent just prior to arrival.  The pain radiates down the \npatient’s left lower extremity, to the right trapezius and right \nlow back....The problem was sustained at work....The patient \nhas not recently seen a physician.... \nBack:  pain, that is moderate, ROM is painful, with rotation to \nthe left, normal spinal alignment noted, no deformity, CVA \ntenderness, is absent, vertebral tenderness, is appreciated at \n\nTHOMPSON - H200936  4\n  \n \n \nL3, L4, L5 and sacrum, muscle spasm, is appreciated in the \nright scapular area and right low back.   \n \n The impression from an x-ray of the claimant’s lumbar spine taken \nJanuary 12, 2022 was “No acute lumbar spine abnormality.”  Dr. Hashmi’s \ndiagnosis included “Sprain of ligaments of lumbar spine.”   \n A WORK RELEASE FORM dated January 12, 2022 indicated that \nthe claimant would be able to return to work on January 17, 2022.  The \nclaimant testified that he received temporary total disability benefits for the \nperiod beginning January 12, 2022.   \n The claimant followed up with Dr. Michel on January 14, 2022:  \n“THIS IS THE CASE OF A 54 Y/O BLK MALE WHO PRESENTED FOR A \nFOLLOW UP VISIT HERE TO THE LCCC TODAY 1-14-22 STATUS POST \nRECEIVING TREATMENT AT THE ER OF THE HELENA REGIONAL MED \nCENTER ON 1-12-22 FOR ACUTE NECK PAIN AND LOW LUMBAR \nSPINE PAIN WHICH BEGAN AFTER LIFTING HEAVY TRASH \nCONTAINER WHILE WORKING ON THE SIDE OF A SANITATION \nTRUCK ON 1=12-22.”  Dr. Michel’s assessment included “Lumbar sprain, \nsubsequent encounter.”   \n A CERTIFICATE OF MEDICAL/DENTAL CONSULTATION dated \nJanuary 14, 2022 indicated that the claimant would be able to return to work \non February 1, 2022. \n\nTHOMPSON - H200936  5\n  \n \n \n An ARKANSAS MOTOR VEHICLE CRASH REPORT indicated that \nthe claimant was involved in a motor vehicle accident on January 16, 2022.  \nThe MEDICAL INFORMATION section of the ARKANSAS MOTOR \nVEHICLE CRASH REPORT appeared to indicate that the Injury Status was \n“No apparent injury.”  The following NARRATIVE was prepared: \nOn 01/17/2022 At approx. 5:04 PM I, Officer Dr. Jointer and \nOfficer Henderson was patrolling in the area of Perry Street \nand Hwy 242.  When we came in contact with a 2006 Audi.  \nAfter making contact with the car and the driver Who was later \nidentified as Melvin Thompson, Thompson stated, he was \ntraveling West on Perry St. when a black vehicle cut him off \nthe road.  Mr. Thompson stated, he was in the right lane \napproaching a curve and the black car hit his left driver side \nand front bumper area.  Which cause his car to spin to the \nright and hit a hill Thompson stated, his car was left spinning \nand hit the embankment of the hill for the second time.  \nThompson stated, after hitting the hill and the car came to a \nstop he was facing oncoming traffic back East bound on Perry \nSt.   \n \n The claimant testified on direct examination: \nQ.  Now, just within a week of this injury at work, you had an \nauto accident? \n  A.  Yes.... \n  Q.  And how did that happen? \nA.  I was traveling west on Perry Street, and a vehicle shot \npast me and cut me off, hit my front bumper.... \nQ.  Did you seek medical treatment for any injuries occurring \nin that accident? \nA.  No. \nQ.  Was the condition of your lumbar spine and the symptoms \nfrom it any different following that accident than it was before? \nA.  No. \nQ.  Did you consider yourself to be injured in that accident? \nA.  No.   \n\nTHOMPSON - H200936  6\n  \n \n \nQ.  Was your back condition aggravated in any way as a \nresult of that motor vehicle accident? \nA.  No.   \n \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on January 19, 2022.  The ACCIDENT INFORMATION section of \nthe Form AR-N indicated that the Date of Accident was January 11, 2022 \nand that the employer was notified of same on January 12, 2022.  The \nclaimant reported on the Form AR-N that he injured his “Back” as the result \nof “Lifting can.”   \nAn MRI of the claimant’s lumbar spine was taken on March 2, 2022 \nwith the impression, “Disc desiccation and disc bulge from L2-L3 through \nL5-S1 is unchanged.  No significant spinal canal stenosis is noted with mild \nbilateral neural foraminal stenosis at L4-L5.”   \n The claimant treated at Lee County Cooperative Clinic on March 7, \n2022:  “Patient is here to discuss his MRI results.  Also would like to discuss \nwith Dr. Michel about him being in [an] MVA on 1/16/22.”  Dr. Michel \nassessed “1.  Lumbago due to displacement of intervertebral disc.”   \n The claimant testified that he received temporary total disability \nbenefits through March 8, 2022.   \n Dr. LaVerne R. Lovell saw the claimant on March 31, 2022: \nMr. Melvin Thompson comes in today for evaluation and \ntreatment of his neck and low back pain at the request of \nworkman’s compensation.  He reports that on January 11, \n2022 is when he was injured at work.  The robotic arm on the \n\nTHOMPSON - H200936  7\n  \n \n \ndump truck was out of order, and he and a couple of his crew \nmates were having to lift heavy trashcans into the front loader.  \nHe says that one particularly heavy can required 3 of them, \nand when they were about half way into lifting the trashcan, \nanother person let go of their side, which kind of jolted him up \non his toes.  He reports that additionally that week they had \nbeen lifting up to 130 cans a day for at least a week.  He says \na couple of days after this particular incident, is when he \nstarted to notice neck and back pain.  He has been treated \nwith Skelaxin and tramadol, but has had no other formal \ntreatment.  He has been off of work since the incident.  He \ncontinues to report pain in his neck, upper back, and lower \nback....He does admit to episodic episodes of low back pain \nstarting in 2014.... \n \n Dr. Lovell gave the following impression:  “Mr. Thompson has been \nhaving increased neck and lower back pain since his work incident in \nJanuary.  His new lumbar MRI does have a right side disc bulge that is new \ncompared to his 2020 MRI.  This does correlate with his thigh complaints of \npins and needles.”  Dr. Lovell planned, “He has not had much conservative \ntreatment, so we will order physical therapy 3 x a week for four weeks....We \nwill put him on light duty with restrictions to include no commercial driving, \nand a 10 pound lifting restriction.  We will follow up after the completion of \nhis physical therapy.”   \n Dr. Lovell signed a Work Status/Work Ability form on March 31, 2022 \nindicating that the Date of Injury was January 11, 2022, and that the \ndiagnosis was “LBP/neck pain.”  The Return to Work Date was March 31, \n2022 and the Work Status was “Restricted.”  There was a 10-pound lifting \n\nTHOMPSON - H200936  8\n  \n \n \nlimit with “No commercial driving.”  Dr. Lovell checked a “Yes” box \nindicating, “Physical Therapy Required.”     \n Dr. Michel stated in part on April 1, 2022, “PLEASE [REFER] TO \nFENTER PHYSICAL THERAPY CENTER IN HELENA, ARKANSAS FOR \nPHYSICAL [THERAPY]” as recommended by Dr. Lovell. \n The claimant testified on direct examination: \nQ.  Now, you saw Dr. LaVerne Lovell one time in March of \n2022, correct? \n  A.  Yes. \n  Q.  And were you scheduled to come back and see him? \n  A.  Yes. \n  Q.  Were you able to make the appointment? \n  A.  No.   \n  Q.  Why weren’t you able to go back and see him? \nA.  I was referred to follow up with physical therapy, and I \ncalled them to set up the appointment and they told me that \nthey have to follow up with workman’s comp to see if they \napprove the treatment.... \nQ.  Physical therapist? \nA.  Yes.  If workman’s comp will pay for the treatment and at \nthat point, I believe, a week later, they said that my benefits \nhad been canceled.  So, you know, I won’t be able to get my \ntreatments.   \nQ.  You heard us talking before the hearing that the claim \nwas, initially, accepted and paid, is that correct? \nA.  Yeah, I was told that. \nQ.  And were you notified after that, that your claim was now \nbeing denied? \nA.  Yes.   \n \n On October 28, 2022, the claimant filed a COMPLAINT IN THE \nCIRCUIT COURT OF PHILLIPS COUNTY, ARKANSAS.  The claimant \n\nTHOMPSON - H200936  9\n  \n \n \nstated, among other things, that he suffered from “A.  Chest Pain, Rib Pain \nand Back Pain” as a result of the January 16, 2022 motor vehicle accident.  \n The respondents’ attorney cross-examined the claimant: \nQ.  Now, on January 16\nth\n of 2022, you were involved in a car \naccident.  Correct? \n  A.  Yes. \nQ.  And I don’t want to necessarily get to the specifics of the \ncar accident, but your testimony today is that you did not \ninjure your back in that car accident.  Is that correct? \nA.  Correct.   \nQ.  Okay.  However, you filed a lawsuit claiming that you \nsustained injuries in that car accident.  Correct? \nA.  No.... \nQ.  This was the Complaint that was filed by the attorney on \nyour behalf in the car accident, and actually, if you’ll turn to \npage 17, paragraph 8. A. shows that you sustained chest \npain, rib pain, and back pain....So you’re saying that’s not \naccurate? \nA.  It's accurate.... \nQ.  So you did sustain back pain in that car accident? \nA.  No.   \nQ.  No, you didn’t, but that’s what this paper says. \nA.  Yes. \nQ.  Okay.   \nA.  Chest pain, they really put the back pain down wrong.   \nQ.  Okay.  So speaking of that lawsuit that dealt with the car \naccident, you actually, settled that recently, correct? \nA.  Yes.        \n \n A pre-hearing order was filed on January 18, 2023.  The pre-hearing \norder indicated that the parties agreed to litigate the following issues: \n1.  According to claimant, compensability, entitlement to \nmedical and indemnity benefits, controversion, and attorney’s \nfees.  Respondents reserve all other issues and specifically \nreserve the right to file an amended Response to the \nPrehearing Questionnaire.   \n \n\nTHOMPSON - H200936  10\n  \n \n \n A hearing was held on April 20, 2023.  An administrative law judge \nstated at that time, “The contentions of the claimant are that the claimant \ncontends that he is entitled to medical indemnity benefits and attorney’s \nfees....[T]he respondents contend that the claimant sustained an injury on \nJanuary 11, 2022, while working for the City of Helena/West Helena.  \nRespondents accepted the injury as compensable and starting paying \nrelated benefits; however, the claimant re-injured his back in a motor \nvehicle accident on January 16, 2022, and that injury is not work-related.  \nRespondents contend that any continued problems claimant is currently \nexperiencing or was at the time of the filing are related to that motor vehicle \naccident and not the workplace injury of January 11, 2022.”   \n The claimant contended that he was “entitled to indemnity to a date \nyet to be determined.”  The respondents contended, “So originally, we did \nstipulate that there was a back injury on January 11, 2022; however, that’s \nnot entirely correct....The respondents initially accepted the back injury, but \nthen, later amended a Form 2 filing and denied it in its entirety.  So the \nissues read that they are compensability and indemnity benefits and \nmedical benefits, and attorney’s fees, and that’s correct....Respondents \ncontend that claimant did not sustain a back injury within the course and \nscope of his employment on January 11, 2022.  Claimant injured his back in \na motor vehicle accident on January 16, 2022, and this injury is not work-\n\nTHOMPSON - H200936  11\n  \n \n \nrelated.  Additionally, claimant has an extensive history of back problems.  \nRespondents contend that any back complaints claimant is currently \nexperiencing are related to the pre-existing issues and/or the motor vehicle \naccident and not the incident at work on January 11, 2022.” \n An administrative law judge filed an opinion on October 10, 2023.  \nThe administrative law judge found that the claimant failed to prove he was \nentitled to “any additional benefits or medical treatment.”  The \nadministrative law judge therefore denied and dismissed the claim.  The \nclaimant appeals to the Full Commission. \nII.  ADJUDICATION \n A.  Compensability \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... \narising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n \n A compensable injury must be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012). \n\nTHOMPSON - H200936  12\n  \n \n \n The claimant has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n An administrative law judge determined in the present matter, “On \nthis record the claimant simply cannot prove, by a preponderance of the \nevidence, that he suffered a compensable injury that entitled him to benefits \nand/or treatment beyond what the respondents already provided.”   \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The determination of the credibility and weight to be given a \nwitness’s testimony is within the sole province of the Commission.  Murphy \nv. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007).  The \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony it deems worthy of belief.  Farmers Co-op v. Biles, \n77 Ark. App. 1, 69 S.W.3d 899 (2002).  An administrative law judge’s \nfindings with regard to credibility are not binding on the Full Commission.  \nRoberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  The \nFull Commission has the duty to adjudicate the case de novo and we are \n\nTHOMPSON - H200936  13\n  \n \n \nnot bound by the characterization of evidence adopted by an administrative \nlaw judge.  Tyson Foods, Inc. v. Watkins, 37 Ark. App. 230, 792 S.W.2d \n348 (1990). \n In the present matter, the Full Commission finds that the claimant \nproved by a preponderance of the evidence that he sustained a \ncompensable injury.  As we have discussed, the claimant testified that he \nbecame employed with the respondents, City of Helena/West Helena, in \nabout 2021.  The parties initially stipulated that the claimant “sustained a \nback injury” on January 11, 2022.  The claimant testified that he was \nworking on “garbage detail” for the respondents.  The claimant testified that \nhe injured his back while lifting a large trash receptacle.  The claimant \ntestified that “it tilted over and it had me bent over it....So the next day, I \ncouldn’t get out of bed, I was in so much pain.”  The claimant testified that \nthe respondents directed him to treat at Helena Regional Medical Center, \nwhere the claimant was diagnosed with “Sprain of ligaments of lumbar \nspine” on January 12, 2022.  Dr. Hashmi physically examined the claimant \non January 12, 2022 and reported “muscle spasm” in the claimant’s right \nlow back.  Muscle spasm has been held to be an objective medical finding.  \nSmith v. County Market/Southeast Foods, 73 Ark. App. 333, 44 S.W.3d 737 \n(2001).  We recognize that the claimant had already been assessed with \n“Spasm of muscle” as early as 2015.  However, there were no reports of \n\nTHOMPSON - H200936  14\n  \n \n \nmuscle spasm noted after December 2, 2019.  The Full Commission finds \nthat Dr. Hashmi’s observation of muscle spasm on January 12, 2022 was \ncausally related to the January 11, 2022 accidental injury and was not \ncausally related to a prior injury or pre-existing condition.   \n The claimant in the present matter proved by a preponderance of the \nevidence that he sustained a \"compensable injury\" in accordance with Ark. \nCode Ann. §11-9-102(4)(A)(i)(Repl. 2012) et seq.  The claimant proved that \nhe sustained an accidental injury causing physical harm to the body.  The \nclaimant proved that the injury arose out of and in the course of \nemployment, required medical services, and resulted in disability.  The \nclaimant proved that the injury was caused by a specific incident and was \nidentifiable by time and place of occurrence on or about January 11, 2022.  \nThe claimant also established a compensable injury by medical evidence \nsupported by objective findings, namely, Dr. Hashmi’s observation of \nmuscle spasm on January 12, 2022.  The claimant proved that this \nobjective medical finding was causally related to the January 11, 2022 \ncompensable injury and was not related to a prior injury or pre-existing \ncondition.     \n B.  Medical Treatment \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \n\nTHOMPSON - H200936  15\n  \n \n \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2002).  It is the \nCommission’s duty to translate the evidence of record into findings of fact.  \nGencorp Polymer Prods. v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 \n(1991).  It is also within the Commission’s province to weigh all of the \nmedical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  What \nconstitutes reasonably necessary medical treatment is a question of fact for \nthe Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 \nS.W.2d 750 (1984).   \n An administrative law judge found in the present matter, “2.  The \nclaimant failed to establish, by a preponderance of the evidence, that he is \nentitled to any additional benefits or medical treatment.”  The Full \nCommission does not affirm this finding.  The claimant proved that he \nsustained a compensable injury on January 11, 2022.  Dr. Hashmi \ndiagnosed “Sprain of ligaments of lumbar spine” on January 12, 2022.  The \nrespondents initially accepted compensability of the claim and provided \nmedical treatment.  The claimant alleged that he was involved in a \nnonwork-related motor vehicle accident on January 16, 2022.  The claimant \n\nTHOMPSON - H200936  16\n  \n \n \ninformed the Helena/West Helena Police Department that another car had \nstruck his vehicle.  The respondents assert that the claimant’s back \nproblems are causally related to the alleged January 16, 2022 motor vehicle \naccident instead of the January 11, 2022 compensable injury.  Indeed, the \nclaimant filed a COMPLAINT in Phillips County Circuit Court on October 28, \n2022 and stated that he was suffering from “Back Pain” as the result of the \nJanuary 16, 2022 alleged accident.  This circumstance certainly diminishes \nthe claimant’s overall credibility.  Nevertheless, the probative medical \nevidence before the Commission does not demonstrate that the claimant \ninjured his back on January 16, 2022.  Nor do the respondents expressly \ncontend that the alleged January 16, 2022 accident was a “nonwork-related \nindependent intervening cause” in accordance with Ark. Code Ann. §11-9-\n102(4)(F)(iii)(Repl. 2012).   \n The claimant in the present matter sustained a compensable lumbar \nsprain on January 11, 2022.  The probative medical evidence does not \ndemonstrate that the claimant re-injured his back on January 16, 2022.  Dr. \nLovell examined the claimant on March 31, 2022 and recommended \nphysical therapy.  Dr. Michel stated on April 1, 2022, “PLEASE [REFER] TO \nFENTER PHYSICAL THERAPY CENTER IN HELENA, ARKANSAS FOR \nPHYSICAL [THERAPY]” as recommended by Dr. Lovell.  The Full \nCommission finds that the claimant proved a course of physical therapy, as \n\nTHOMPSON - H200936  17\n  \n \n \nrecommended by Dr. Lovell and Dr. Michel, was reasonably necessary in \naccordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).   \n C.  Temporary Disability \n Finally, temporary total disability is that period within the healing \nperiod in which the employee suffers a total incapacity to earn wages.  Ark. \nState Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  \n“Healing period” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The determination \nof when the healing period has ended is a question of fact for the \nCommission.  Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d \n878 (1996).   \n In the present matter, the claimant proved by a preponderance of the \nevidence that he sustained a compensable injury on January 11, 2022.  Dr. \nHashmi diagnosed “Sprain of ligaments of lumbar spine” on January 12, \n2022.  The claimant testified that he received temporary total disability \nbenefits for the period beginning January 12, 2022 and continuing through \nMarch 8, 2022.  Dr. Lovell examined the claimant on March 31, 2022 and \nreleased the claimant to restricted work.  The evidence therefore \ndemonstrates that the claimant was no longer incapacitated from earning \nwages after March 31, 2022.  The claimant proved that he was entitled to \n\nTHOMPSON - H200936  18\n  \n \n \nadditional temporary total disability benefits beginning March 9, 2022 and \ncontinuing through March 31, 2022.   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved by a preponderance of the evidence that he \nsustained a compensable injury on January 11, 2022.  The claimant proved \nthat physical therapy as recommended by Dr. Lovell and Dr. Michel was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  The claimant proved that he was entitled to additional \ntemporary total disability benefits beginning March 9, 2022 and continuing \nthrough March 31, 2022.  The claimant’s attorney is entitled to fees for legal \nservices in accordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For \nprevailing on appeal, the claimant’s attorney is entitled to an additional fee \nof five hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-\n715(b)(Repl. 2012). \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n\nTHOMPSON - H200936  19\n  \n \n \nDISSENTING OPINION      \n I must respectfully dissent from the Majority’s finding that the \nclaimant has proven that he is entitled to additional medical treatment and \ntemporary total disability benefits. \nArk. Code Ann. § 11-9-508(a) (Repl. 2012) requires an employer to \nprovide an employee with medical and surgical treatment \"as may be \nreasonably necessary in connection with the injury received by the \nemployee.\"  The claimant has the burden of proving by a preponderance of \nthe evidence that the additional medical treatment is reasonable and \nnecessary.  Nichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d \n148 (2010).  \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013). \nIt is within the Commission's province to weigh all the medical \nevidence to determine what is most credible and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \n\nTHOMPSON - H200936  20\n  \n \n \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  However, the Commission has the authority to accept \nor reject medical opinions.  Williams v. Ark. Dept. of Community \nCorrections, 2016 Ark. App. 427, 502 S.W. 3d 530 (2016).  Furthermore, it \nis the Commission's duty to use its experience and expertise in \ntranslating the testimony of medical experts into findings of fact and to draw \ninferences when testimony is open to more than a single interpretation.  Id. \nHere, the claimant has reported ongoing back problems since 2014 \nwhen he sustained two separate low back injuries on January 17 and June \n6, 2014, for which he received “epidurals and block shots” as well as \nrhizotomies.  (Hrng. Tr., Pp. 14, 15; Resp. Ex. 1, Pp. 1-2).  \nThe claimant has received multiple MRIs over the years and was \ndiagnosed with canal and foraminal stenosis and degenerative disc disease \nof L4-L5 on August 20, 2014, and had an epidural injection at Legacy \nNeurology in Little Rock on October 8, 2014.  (Jt. Ex. 1, Pp. 17, 27).  \nA later MRI conducted on May 30, 2017, revealed a generalized disc \nbulge with mild ligamentum flavum/facet hypertrophy at L2-L3 and L4-L5 \nresulting in mild bilateral neural foraminal stenosis.  (Jt. Ex. 1, P. 67).  This \ndiagnosis was confirmed with a third MRI on March 25, 2020.  (Jt. Ex. 1, P. \n113).  \n\nTHOMPSON - H200936  21\n  \n \n \nIn November 2015, the claimant’s primary care physician, Dr. Harry \nMichel, noted that the claimant “wants to be off work due to lower back pain \nthat radiates into the lateral and posterior aspect of his right leg but \nexplained that his lower back pain does not require him to be permanently \noff of work.”  (Jt. Ex. 1, Pp. 44-49). \nWhen the claimant sustained his alleged injury on January 11, 2022, \nhe sought treatment at Helena Regional Medical Center and was released \nto return to work on January 17, 2022.  (Jt. Ex. 1, Pp. 125-132).  Claimant \nthen followed up with Dr. Michel on January 14, 2022, who diagnosed the \nclaimant with a lumbar sprain and took him off of work until February 1, \n2022, and prescribed Viagara.  (Jt. Ex. 1, Pp. 133-136).  Dr. Michel did not \nrecommend any additional medical treatment.  Id.  \nShortly after his visit with Dr. Michel, the claimant was in a motor \nvehicle accident on January 16, 2022.  The claimant returned to Dr. Michel \nto discuss this accident on March 7, 2022, and Dr. Michel explained the \nMRI on March 2, 2022, revealed bulging discs in the claimant’s lumbar \nspine.  (Jt. Ex. 1, Pp. 143,144).  \nThe claimant was examined by Dr. LaVerne Lovell on March 31, \n2022, at the request of the respondents.  (Jt. Ex. 1, Pp. 148-152).  Dr. \nLovell recommended physical therapy and returned the claimant to work on \n\nTHOMPSON - H200936  22\n  \n \n \nlight duty.  Id.  At this juncture, the respondents denied further treatment \nand the claimant did not complete physical therapy. \nAt the hearing on April 20, 2023, the claimant described his back as \nbeing “good,” and stated that he could not recall the last time he took \nmedication for his back.  He testified he is capable of working at regular \nduty and does not need any medical treatment for his back.  (Hrng. Tr., P. \n27). \nThere is no evidence in the record to support the claimant’s petition \nfor additional medical treatment or additional temporary disability benefits. \nThe whole of the claimant’s medical records reflect that his low back pain is \ndegenerative in nature and that he has been receiving treatment for these \nissues for ten years.  In addition, the claimant was involved in a motor \nvehicle accident five (5) days after the accident in question.  As a result of \nthe motor vehicle accident, the claimant filed a civil lawsuit alleging back \ninjuries.  \nIt is clear the any back issues of which the claimant has complained \nare due to his degenerative condition or the motor vehicle accident which \noccurred on January 16, 2022, only five (5) days after the accident in \nquestion.  \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n\nTHOMPSON - H200936  23\n  \n \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":32718,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H200936 MELVIN THOMPSON, EMPLOYEE CLAIMANT CITY OF HELENA WEST HELENA, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE WCT, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 18, 2024","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["back","sprain","strain","cervical","lumbar","neck"],"fetchedAt":"2026-05-19T22:29:45.805Z"},{"id":"alj-H206545-2024-04-18","awccNumber":"H206545","decisionDate":"2024-04-18","decisionYear":2024,"opinionType":"alj","claimantName":"Jamarsae Baker","employerName":null,"title":"BAKER VS. LEXICON HOLDING CO.AWCC# H206545April 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Baker_Jamarsae_H206545_20240418.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Baker_Jamarsae_H206545_20240418.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206545 \n \nJAMARSAE BAKER, \nEMPLOYEE                                                                                                              CLAIMANT \n \nLEXICON HOLDING CO., \nEMPLOYER                                                                                                         RESPONDENT  \n \nACIG INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nRISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED APRIL 18, 2024 \n \nHearing conducted on Wednesday, April 3,  2024, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge (ALJ) Steven  Porch,  in Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Mr. Jamarsae Baker, pro se, of North Little Rock, Arkansas, did not appear in person \nat the hearing.  \n \nThe Respondents were represented by the Honorable Guy Wade, Little Rock, Arkansas. \n \n \nBACKGROUND \n \n  This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  Respondents.  A \nhearing was conducted on April 3, 2024, in Little Rock, Arkansas. No testimony was taken in the \ncase. Claimant, who according to Commission records is pro se, failed to appear at the hearing. \nThe Claimant worked for the Respondent/Employer as  a laborer. The Claimant reported \nhis injury  to  the Respondent/Employer  the  same  day. Admitted  into  evidence  was  Commission \nExhibit  1,  pleadings,  correspondence,  and  Certified  U.S.  Mail return  receipts,  consisting  of \nfourteen  pages. I  have  also  blue-backed the Form  AR-1, the Form  AR-2, and Respondents’ \ncounsel’s September 20, 2023, email. \n\nBAKER, AWCC No. H206545 \n \n2 \n \nThe record reflects the following procedural history: On September 12, 2022, a Form AR-\n1  was  filed  in  this  case,  reflecting  that  Claimant  purportedly  sustained multiple  fractures  to  his \nright  foot  on  August  29,  2022. He  allegedly  fractured  his  right  foot  while  moving  range  pipe \nsaddles when one top heavy saddle fell onto his right foot. The Claimant reported his injury to the \nRespondent/Employer  the  same  day. Respondents  on  September  14,  2022,  filed  a  Form  AR-2, \nrepresenting that the claim was under investigation. The Respondents hired Attorney Guy Wade \nto  represent  them on  September  6,  2023. The  Claimant has  never  filed a Form  AR-C since  the \nalleged injury date or demanded a hearing. \nHowever,  on September  11,  2023, Attorney Marie  A.  Crawford, located  in  Sherwood, \nArkansas, entered  an  appearance on behalf of the Claimant’s minor daughter, with  the  initials \nJ.S.B., to receive temporary total disability benefits pursuant to Ark. Code Ann. § 11-9-812 (a)(1) \n(Repl.   2012).  The   Claimant   was   incarcerated   at   the   time   of   this   filing.   During   email \ncorrespondence between the Commission, Attorney Crawford, and Respondent’s counsel, it was \ndiscovered  that  the Respondents  paid temporary total disability benefits  to  the  Claimant  from \nAugust  30,  2022,  through  March  6,  2023,  at  which  time  he  was  released  to  full  duty. The \nRespondents held the position that the Claimant was paid everything he was entitled to and was \nowed  no  more  benefits. On  October  10,  2023,  Attorney  Crawford  filed  a  Motion  for  Leave  to \nWithdraw as Counsel. The Motion was granted on the same day. \nThe Respondents next filed  a Motion to Dismiss on December  5,  2023, requesting  this \nclaim be dismissed for lack of prosecution. The Claimant was sent notice of the Motion to Dismiss \nfrom the Commission on December 19, 2023, to 1909 Highway 161, Apartment 7, North Little \nRock,  Arkansas  72117,  Claimant’s  last  known  address. After  sending  the  first  notice,  the \nCommission soon learned of a second address for the Claimant at 702 East 49\nth\n Street, North Little \n\nBAKER, AWCC No. H206545 \n \n3 \n \nRock, Arkansas  72117.  A  separate  notice  of  the  Motion  to  Dismiss  was  sent  to  that  address on \nJanuary 26, 2024. The Claimant did not respond to either notice in writing. Thus, in accordance \nwith applicable Arkansas law, the Claimant was  mailed due and proper legal notice of both the \nRespondents’ Motion  to Dismiss  and the  hearing  notice  at  his current  address  of  record  via  the \nUnited States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, and \nregular First-Class Mail. The certified notices were returned to the Commission unclaimed but the \nregular First-Class mail notices were not returned. The hearing took place on April 3, 2024. The \nClaimant did not show up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters  of  record,  including Commission Exhibit  1, pleadings,  correspondence,  and \nCertified U.S. Mail return receipts, consisting of fourteen pages, the blue-backed AR-1, AR-2, and \nRespondents’ counsel’s September 20, 2023, email, I hereby make the following findings: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had notice of the April 3, 2024, hearing. \n \n3. The Claimant has not filed an initial or additional claim for benefits in this matter.  \n \n4. The Respondents’ Motion to Dismiss should be denied.     \n \nDISCUSSION \n Consistent  with both Ark.  Code  Ann. §  11-9-702(a)(4) and  AWCC  Rule 099.13, the \nCommission scheduled and conducted a hearing on the Respondents’ Motion to Dismiss. I do find \nby the preponderance of the evidence that no claim exists when considering Commission’s Exhibit \n1, which contains pleadings, correspondence, and Certified U.S. Mail return receipts, and the blue-\n\nBAKER, AWCC No. H206545 \n \n4 \n \nbacked Forms AR-1, AR-2, and Respondents’ counsel’s September 20, 2023, email, all of which \nare contained in the record. The Claimant has not filed a Form AR-C or submitted a letter claiming \ninitial or additional benefits with the Commission since his alleged injury date of August 29, 2022. \nAn AR-C is the means for filing a formal complaint with the Commission. However, based on an \nemail by Respondent’s counsel on September 20, 2023, which has been blue-backed and made a \npart  of  this  record,  initial  benefits  have  been  paid  to  the  Claimant.  Despite  this,  nothing  in  the \nCommissions’ file show that a formal claim ever existed, not even for additional benefits. Even if \nI  decided  to recognize  that  other  means  exist  to  file  a formal claim  other  than  a Form  AR-C, \nutilizing Cook v. Southwestern Bell Telephone Company, 21 Ark. App. 29, 727 S.W.2d 862 (1987), \nno correspondence fits this court’s holding. The Cook court held that an attorney’s correspondence \nnotifying the Commission that he has been employed to assist a claimant in connection with unpaid \nbenefits is sufficient to state a claim for additional compensation where the correspondence also \nlists the Claimant’s name, the employer’s name and the AWCC  file  number. My  review  of  the \nevidence  discloses  no  such  correspondence that  meets  the  requirements  for  a  formal  claim for \nadditional  benefits in  this  matter. The Cook case  is  a  pre-1993 case,  before  the  Workers’ \nCompensation laws were updated, and has been superseded by statute when it comes to additional \ncompensation. Claims for additional compensation must be stated specifically per Ark. Code Ann. \n§ 11-9-702(c) (Repl. 2012), which reads: \nA claim for additional compensation must specifically state that it \nis  a  claim  for  additional  compensation.  Documents  which  do  not \nspecifically request  additional  benefits  shall  not  be  considered  a \nclaim for additional compensation. \n \n(Emphasis added) See White Cty Judge v. Menser, 2020 Ark. 140, 597 S.W.3d 640 (2020). \n \n While  Forms  AR-1  and  AR-2  were  filed,  and  now  blue  backed  and  made  a  part  of  this \nrecord, they were still insufficient to instigate a claim for additional benefits. Neither document \n\nBAKER, AWCC No. H206545 \n \n5 \n \nspecifically request additional benefits, which is required by the statute. Therefore, I find by the \npreponderance  of  the  evidence  that  no  formal  claim  has  been  filed  in  this  matter.  And  since no \nclaim has been filed, there is no claim subject to dismissal per Respondents’ motion. Thus, \nRespondents’ Motion to Dismiss must fail and is hereby denied. \n \nCONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is denied. \n \n      IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":9197,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H206545 JAMARSAE BAKER, EMPLOYEE CLAIMANT LEXICON HOLDING CO., EMPLOYER RESPONDENT ACIG INS. CO., CARRIER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED APRIL 18, 2024 Hearing conducted on Wednesday, April 3, 2024, be...","outcome":"dismissed","outcomeKeywords":["dismissed:2","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:34.096Z"},{"id":"alj-H302115-2024-04-18","awccNumber":"H302115","decisionDate":"2024-04-18","decisionYear":2024,"opinionType":"alj","claimantName":"Latricia Polk","employerName":"Tokusen USA, Inc","title":"POLK VS. TOKUSEN USA, INC. AWCC# H302115 April 18, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Polk_Latricia_H302115_20240418.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Polk_Latricia_H302115_20240418.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H302115 \n \n \nLATRICIA DENISE POLK, EMPLOYEE CLAIMANT \n \nTOKUSEN USA, INC., \n EMPLOYER RESPONDENT \n \nBRIDGEFIELD CASUALTY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED APRIL 18, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on April 18, 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented by  Mr. Jason  M.  Ryburn, Attorney at Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on January 26,  2024, in \nMarion, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    Admitted  into \nevidence  without  objection  were  the  following:    Commission  Exhibit  1,  forms, \npleadings, and correspondence related to this claim, consisting of 16 pages. \n The record reveals the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on March 31,  2023,  reflects  that \nClaimant purportedly suffered  an injury on March 21,  2023, when  she  fell  at  her \n\nPOLK – H302115 \n2 \n \nworkplace.    Per   the   Forms AR-2   filed   on March 31 and April   6,   2023, \nRespondents accepted a  patellar  injury and  paid  medical  and  indemnity  benefits \npursuant thereto. \n On May  4,  2023,  through  then-counsel  Laura  Beth  York,  Claimant  filed  a \nForm AR-C, alleging that she was entitled to the full range of initial and additional \nbenefits for injuries to her right knee and “other whole body.”  No hearing request \naccompanied this filing.  Respondents informed the Commission on May 9, 2023, \nthat they were now controverting the claim in its entirety.  Their counsel made his \nentry  of  appearance  on  July  13,  2023.    On January  18,  2024,  York  moved  to \nwithdraw from her representation of Claimant.  In an Order entered on February 8, \n2024, the Full Commission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nFebruary  16,  2024,  when  Respondents  filed  the  instant Motion  to Dismiss, \ncontending that “[n]o efforts to prosecute the claim have been made in more than \n[six]  6  months  from  the  date  of  the  Form  [AR-]C.”  On February  21,  2024, my \noffice wrote  Claimant, requesting  a  response  to  the  motion  within 20 days.  This \ncorrespondence  was  sent  by  both  certified  and  first-class  mail to  the Conway \naddress for Claimant listed in the file and on her Form AR-C.  The certified letter \nwas  returned  to  the  Commission,  undelivered, on March  18,  2024;  but the  first-\nclass  correspondence  was not returned to  the  Commission.  However,  no \nresponse by Claimant to the motion was forthcoming. \n\nPOLK – H302115 \n3 \n \n On March 19, 2024, a hearing on Respondents’ motion was scheduled for \nApril  18,  2024, at 9:30 a.m.  at  the Commission in Little  Rock.    The Notice  of \nHearing was sent to Claimant by certified and first-class mail to the same address \nas before.  In this instance, it could not be verified whether Claimant signed for the \ncertified letter; but again, the first-class letter was not returned. \n The hearing proceeded as scheduled on April 18, 2024.  Claimant failed to \nappear  at  the  hearing.    But  Respondents  appeared  through  counsel  and  argued \nfor dismissal under, inter alia, Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute her claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \n\nPOLK – H302115 \n4 \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction  in  pursuit  of  her  claim  since the  filing  of  her  Form  AR-C  on May  4,  2023.  \nMoreover,  she  failed  to  appear  on  the  hearing  to  argue  against  dismissal  of  the \nclaim,  despite  the  evidence  showing  that  both  she  and  Respondents  were \nprovided  reasonable  notice  of  the  Motion  to Dismiss  and  of  the  hearing  thereon.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause of this finding, it is unnecessary to address the applicability of Ark. Code \nAnn. § 11-9-702(d) (Repl. 2012). \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).   The Commission  and  the  Appellate  Courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nPOLK – H302115 \n5 \n \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":6590,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H302115 LATRICIA DENISE POLK, EMPLOYEE CLAIMANT TOKUSEN USA, INC., EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INS. CO., CARRIER RESPONDENT OPINION FILED APRIL 18, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on April 18, 2024, in Little ...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:55:36.278Z"},{"id":"alj-H304019-2024-04-17","awccNumber":"H304019","decisionDate":"2024-04-17","decisionYear":2024,"opinionType":"alj","claimantName":"Raul Castro","employerName":null,"title":"CASTRO VS. DILLMEIER ENTERPRISES, INC.AWCC# H304019 April 17, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/CASTRO_RAUL_H304019_20240417.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CASTRO_RAUL_H304019_20240417.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H304019 \n \nRAUL D. GRANDE CASTRO, Employee                                                       CLAIMANT \n \nDILLMEIER ENTERPRISES, INC., Employer                                         RESPONDENT                                                        \n \nTRAVELERS INDEMNITY CO., Carrier/TPA                                          RESPONDENT                                                                                                    \n \n \n OPINION/ORDER FILED APRIL 17, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by AMY C. MARKHAM, Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On  August  9,  2023,  claimant  filed  Form  AR-C  requesting  various  compensation \nbenefits.  Since that time, claimant has not requested a hearing or taken any further action \nto  prosecute  his  claim.    As a  result, respondent  filed  a motion  to dismiss this  claim on \nJanuary 18, 2024.  A hearing was scheduled on the respondent’s motion for April 8, 2024. \nNotice of the hearing was sent to claimant by certified mail and was delivered on February \n13, 2024.  Claimant has not responded to the respondent’s motion and did not appear at \nthe hearing. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \n\nCastro – H304019 \n \n2 \n \nMotion  to  Dismiss should  be  and  hereby  is  granted.    This  dismissal  is  pursuant  to \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":1966,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304019 RAUL D. GRANDE CASTRO, Employee CLAIMANT DILLMEIER ENTERPRISES, INC., Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier/TPA RESPONDENT OPINION/ORDER FILED APRIL 17, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Se...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:27.899Z"},{"id":"alj-H303200-2024-04-17","awccNumber":"H303200","decisionDate":"2024-04-17","decisionYear":2024,"opinionType":"alj","claimantName":"Malinda Gilbert","employerName":null,"title":"GILBERT VS. NIDEC MOTOR CORPORATIONAWCC# H303200April 17, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GILBERT_MALINDA_H303200_20240417.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GILBERT_MALINDA_H303200_20240417.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H303200 \n \nMALINDA J. GILBERT, Employee                                                                 CLAIMANT \n \nNIDEC MOTOR CORPORATION, Employer                                          RESPONDENT                                                        \n \nTRAVELERS INDEMNITY CO., Carrier/TPA                                          RESPONDENT                                                                                                    \n \n \n OPINION/ORDER FILED APRIL 17, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by AMY C. MARKHAM, Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This  case  comes  on  for  review  following  a  hearing  on respondent’s Motion to \nDismiss. \n On March 22, 2023, claimant filed Form AR-C alleging an injury to his right hand.  \nRespondent  has  denied  this  claim  in  its  entirety.    Claimant  has  taken  no  action  to \nprosecute her claim and as a result respondent filed a Motion to Dismiss on December \n21, 2023.  A hearing was scheduled on the respondent’s motion for April 8, 2024. Notice \nof the hearing was sent to claimant by certified mail at her last known address and was \nreturned by the Post Office as “Unclaimed.”   Claimant did not appear at the hearing and \nhas not responded to the respondent’s motion. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \n\nGilbert – H303200 \n \n2 \n \nthereto, and all other matters properly before the Commission, I find that respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":1996,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303200 MALINDA J. GILBERT, Employee CLAIMANT NIDEC MOTOR CORPORATION, Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier/TPA RESPONDENT OPINION/ORDER FILED APRIL 17, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:29.954Z"},{"id":"alj-H305052-2024-04-17","awccNumber":"H305052","decisionDate":"2024-04-17","decisionYear":2024,"opinionType":"alj","claimantName":"Barbara Mcgraw","employerName":null,"title":"McGRAW VS. LONOKE MIDDLE SCHOOLAWCC# H305052 APRIL 17, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MCGRAW_BARBARA_H305052_20240417.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCGRAW_BARBARA_H305052_20240417.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H305052 \n \n \nBARBARA McGRAW, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nLONOKE MIDDLE SCHOOL,   \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nINSURANCE CARRIER/TPA                                                                                RESPONDENT  \n                       \n \nOPINION FILED APRIL 17, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Pulaski County, Arkansas. \n \nThe Claimant, pro se, did not appear at the hearing.  \n \nThe Respondents represented by the Honorable Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on April 17, 2024 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode  Ann. §11-9-702 (Repl.  2012), and Arkansas Workers’ Compensation Commission  Rule \n099.13.  No testimony was taken at the hearing.   \n The record consists of the transcript of the April 17, 2024, hearing and the documents held \ntherein.  Admitted into evidence was Commission’s Exhibit 1 consisting of thirteen pages, which \nwas marked accordingly, and the Respondents’ Hearing Exhibit consisting of thirteen numbered \npages was marked as Respondents’ Exhibit 1.   \n \n \n\nMcGRAW – H305052 \n \n2 \n \n                                                           Background \n On October  13,  2023, the Claimant’s attorney filed with  the Commission a claim for \nArkansas workers’ compensation benefits by  way  of  a Form  AR-C.   Per  this  document,  the \nClaimant alleged that she sustained injuries to her left arm, left shoulder and other whole body, \nduring  and  in  the  course  and  scope  of  her the  respondent-employer,  on  August 7,  2023.   The \nClaimant’s attorney requested both initial and additional workers’ compensation benefits.  In fact, \nthe attorney checked  all  the  boxes  for  every  conceivable  benefit available  under  the  law in \nconnection with this claim. \n On August 9, 2023, the Respondents filed a Form AR-2 with the Commission to controvert \nthis claim.  Specifically, the Respondents’ grounds for controverting the claim were: “DENIED – \ndid not occur with the course and scope of employment.”  \n Since the  filing  of  the  Form  AR-C, there has  been no  request  for  a  hearing  filed by  the \nClaimant in this matter.   \n The  Claimant’s  attorney filed  with  the  Commission  a  Motion  to  Withdraw from \nrepresenting the Claimant in this matter on January 17, 2024.  The Full Commission entered an \norder granting the Claimant’s attorney motion to withdraw from representing her in this matter on \nFebruary 8, 2024.  The Claimant filed a letter with the Commission on February 14, 2024, saying \nthat she does not object to her attorney withdrawing from the claim.  \n Since this time, there has been no bona fide action whatsoever on the part of the Claimant \nto prosecute her claim for workers’ compensation benefits, or otherwise pursue a resolution in this \nmatter.   \n\nMcGRAW – H305052 \n \n3 \n \nAs  a  result,  on February  16, 2024,  the Respondents  filed with  the Commission a letter \nrequest for dismissal of this claim for a lack of prosecution, with a copy  of this pleading to the \nClaimant being deposited in the mail of the United States Postal Service.    \nThe Commission sent a letter to the Claimant’s last known address with the Commission \non February  20,  2024,  informing  her  of  the  Respondents’  motion  for  dismissal.  Per  this \ncorrespondence, the Claimant was given a deadline of twenty days to file a written response with \nthe Commission to the Respondents’ motion.  Said letter was sent via both first-class and certified \nmail. \nTracking  information  from  the  United States  Postal  Service  shows  that on February  24, \n2024, the above-mentioned certified letter was delivered to the Claimant  when she picked it up \nfrom the Lonoke Post Office.  The Signature and Recipient section of this document shows that \nthe Claimant signed for delivery of this correspondence.  The proof of delivery receipt bears the \nClaimant’s printed name and her signature.  Moreover, the letter sent by first-class mail has not \nbeen returned to the Commission. \n Yet, there was no response from the Claimant.   \nTherefore, pursuant to a Notice of Hearing dated March 12, 2024, the Commission notified \nthe parties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim \ndue  to  a  lack  of  prosecution.   Said dismissal hearing  was  scheduled for April  17,  2024, at 9:00 \na.m., at the Arkansas Workers’ Compensation Commission, in Little Rock, Arkansas. \nThe hearing notice was sent to the Claimant via both first-class and certified mail.  Tracking \ninformation received from the United States Postal Service shows that this item was picked up by \nthe Claimant on March 20, 2024, at the local Post Office in Lonoke.  The proof of delivery receipt \n\nMcGRAW – H305052 \n \n4 \n \nbears the Claimant’s printed name and her signature.  Of note, the hearing  notice  sent  to  the \nClaimant via first-class mail has not been returned to the Commission.  \nStill, there has been no response from the Claimant.  \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nof this claim for a lack of prosecution as scheduled on April 17, 2024.  The Claimant did not appear \nat the dismissal hearing, and she has not responded to the notices of this Commission.  However, \nthe Respondents appeared  through  their  attorney and  argued  for  dismissal  of  this  claim without \nprejudice due to a lack of prosecution.    \nThe Respondents pointed out that there is no record of a hearing ever being requested in \nthis matter.  As a result, the Respondents made the dismissal request.  Therefore, the Respondents \nasked for dismissal of this claim, without prejudice.  \nThe  record  before  me proves  that the  Claimant has failed  to  prosecute  her claim  for \nworkers’ compensation benefits.  The Claimant has not ever requested a hearing since the filing of \nher claim.  She did not appear at the hearing to object to her claim being dismissed and she has not \nresponded to the written notices of this Commission.   \nUnder these circumstances, I am compelled to find that the evidence preponderates that the \nClaimant has abandoned her claim for workers’ compensation benefits.  Therefore, per Ark. Code \nAnn. §11-9-702 and Rule 099.13 of this Commission, I find that this claim should be and is hereby \nrespectfully dismissed, without prejudice to the refiling of it within the limitation period specified \nby law.   \n                             FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n\nMcGRAW – H305052 \n \n5 \n \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim due to a lack of prosecution, for which a hearing was held. \n \n3. The Claimant has not ever requested a hearing since the filing of her claim \nvia  the  Form  AR-C,  and  she  has  objected  to  her  claim  being  dismissed.  \nHence, the evidence preponderates that the Claimant has failed to prosecute \nher claim for workers’ compensation benefits.      \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby granted, without prejudice, per Ark. Code  Ann. §11-9-702, and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \nORDER \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. 11-9-702, and Arkansas Workers’ Compensation \nCommission  Rule 099.13, without  prejudice, to  the  refiling  of it, within the limitation  period \nspecified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":8875,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H305052 BARBARA McGRAW, EMPLOYEE CLAIMANT LONOKE MIDDLE SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 17, 2024 Hearing held before Administrative Law Judge Chandra L. Black, in Pulaski ...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:55:32.022Z"},{"id":"alj-H500016-2024-04-16","awccNumber":"H500016","decisionDate":"2024-04-16","decisionYear":2024,"opinionType":"alj","claimantName":"Antavion White","employerName":"Paper Tigers, Inc","title":"WHITE VS. PAPER TIGERS, INC. AWCC# H500016 April 16, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WHITE_ANTAVION_H500016_20240416.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WHITE_ANTAVION_H500016_20240416.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC FILE No H500016 \n \nANTAVION WHITE, EMPLOYEE        CLAIMANT \n \nPAPER TIGERS, INC., EMPLOYER                      RESPONDENT \n \nSENTINEL INSURANCE CO., LTD./ \nTHE HARTFORD, CARRIER/TPA           RESPONDENT \n  \n \n \nOPINION FILED 16 APRIL 2025 \n \n \nHeard before Arkansas Workers’ Compensation Commission (“the Commission”) \nAdministrative Law Judge JayO. Howe on 10 April 2025 in Pine Bluff, Arkansas. \n \nThe pro se claimant failed to appear. \n \nAnderson, Murphy & Hopkins, LLP, Mr. Randy Murphy, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine \nBluff, Arkansas, on 10 April 2025. This case relates to an alleged workplace injury \noccurring on 15 October 2024. Due to clerical difficulties, no exhibits were offered into the \nrecord at the hearing. The respondents offered to submit exhibits via email after the \nhearing’s conclusion. Instead, I have blue-backed to this opinion the claimant’s Form AR-C \n(dated 31 December 2024), the respondents’ Motion to Dismiss, notice letters from the \nCommission, and one unclaimed Certified Mail envelope. In accordance with Sapp v. Tyson \nFoods, Inc., 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, these documents are being \nserved on the parties in conjunction with this opinion. \nThe claimant filed a Form AR-C on 31 December 2024. According to the respondents’ \nmotion, he later informed the respondents that he did not wish to pursue this claim. On 16 \n\nA. WHITE- H500016 \n2 \n \nJanuary 2025, the respondents filed the immediate motion seeking a dismissal under \nCommission Rule 099.13 (“Rule 13”).  \n Notice of the respondents’ motion was sent to the claimant, consistent with \nCommission practices, via First Class Mail and Certified Mail, on 22 January 2025 to the \naddress provided on the AR-C. After no response or objection was received by my office, a \nnotice of a hearing on that motion was sent in the same fashion on 26 February 2025. When \nmailings are returned to the Commission as not accepted or undeliverable, those mailings \nare appended to the claim’s file. This file only contains a return of the hearing notice letter \nsent via Certified Mail. No other mailings were returned as unaccepted or undeliverable. \nFINDINDGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n 1. The Commission has jurisdiction over this matter. \n2. The parties were provided with reasonable notice of the Motion to Dismiss \nand the hearing on that motion. \n \n3. The evidence preponderates that the claimant has failed to prosecute his \nclaim under Rule 13. \n \n4. The Motion to Dismiss is hereby granted; this claim for additional benefits is \ndismissed without prejudice under Rule 13. \n \nDISCUSSION \nThe respondents appeared on 10 April 2025 and presented their motion. As argued \nby the respondents at the hearing, our Rule 13 provides for a dismissal for failure to \nprosecute an action upon application by either party and reasonable notice. The claimant \ndid not file a response to the motion or appear at the hearing to argue against the dismissal \nof his claim.  \n\nA. WHITE- H500016 \n3 \n \n The respondents relayed in their motion that the claimant did not wish to prosecute \nhis claim. The claimant, in turn, did not file a response or appear to object to the dismissal \nof his claim. His failure to appear is consistent with his apparently-expressed wish that the \nmatter not proceed. A dismissal without prejudice is, therefore, appropriate. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3881,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H500016 ANTAVION WHITE, EMPLOYEE CLAIMANT PAPER TIGERS, INC., EMPLOYER RESPONDENT SENTINEL INSURANCE CO., LTD./ THE HARTFORD, CARRIER/TPA RESPONDENT OPINION FILED 16 APRIL 2025 Heard before Arkansas Workers’ Compensation Commission (“the Commission”) Adm...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:41:44.964Z"},{"id":"alj-H106771-2024-04-16","awccNumber":"H106771","decisionDate":"2024-04-16","decisionYear":2024,"opinionType":"alj","claimantName":"Chelsea Johnson","employerName":null,"title":"JOHNSON VS. OUACHITA COUNTY MEDICAL CENTERAWCC# H106771April 16, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/JOHNSON_CHELSEA_H106771_20240416.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_CHELSEA_H106771_20240416.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H106771 \n \n \nCHELSEA JOHNSON, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nOUACHITA COUNTY MEDICAL CENTER,   \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nAHA WORKERS’ COMPENSATION SIF, \nINSURANCE CARRIER                                                                                        RESPONDENT \n  \nRISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED APRIL 16, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n \nThe Claimant, pro se, did not appear at the hearing.  \n \nThe Respondents represented  by the  Honorable Melissa  Wood, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on February 7, 2024 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode  Ann. §11-9-702 (Repl.  2012), and Arkansas Workers’ Compensation Commission  Rule \n099.13.  No testimony was taken at the hearing.   \n The record consists of the transcript of the February 7, 2024, hearing and the documents \nheld therein.  Admitted into evidence was Commission’s Exhibit 1 consisting of three pages, which \nwas  marked  accordingly, and the Respondents’ Hearing Exhibit consisting of fifteen numbered \npages was marked as Respondents’ Exhibit 1.  Additionally, in order to adequately address this \n\nJOHNSON – H106771 \n \n2 \n \nmatter  under  Ark.  Code  Ann.  §  11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the \nhearing  . . . in a manner which best ascertains the rights of the parties”), and without objection, I \nhave blue-backed  to  the  record,  four  totaled pages which  includes the  Form AR-2 and the  Full \nCommission’s order of July 11, 2023 relieving Claimant’s attorney as counsel of record in this \nmatter from the Commission’s file of this claim.  In accordance with Sapp v. Tyson Foods, Inc., \n2010  Ark.  App.  517,  ___  S.W.3d  ___,  these  documents  have  been  served  on  the  parties  in \nconjunction with this opinion. \n                                                           Background \n On February  17,  2023, the Claimant’s attorney filed with  the Commission a claim for \nArkansas workers’ compensation benefits by way of a Form AR-C.  The Claimant alleged that she \nsustained an injury to her lower back on November 3, 2021, while performing employment duties \nfor the respondent-employer.  Per this document, the Claimant said that her injury occurred while \napplying a wound VAC to a patient’s sacral area (she was adjusting and leaning), and as she turned \na certain way, she felt a sharp pain on her left side.  The Claimant’s attorney requested both initial \nand additional workers’ compensation benefits.  In  fact,  he checked  all  the  boxes  for  every \nconceivable benefit available under the law in connection with this claim. \n On August 23, 2021, the Respondents filed a Form AR-2 with the Commission accepting \nthis claim for a low back injury.  The Respondents have paid both medical and indemnity benefits \nto and on behalf of the Claimant in this matter. \n Since the filing of the Form AR-C, there was no request for a hearing filed by the Claimant \nin this matter.   \n The  Claimant’s  attorney filed  with  the  Commission  a  Motion  to  Withdraw from \nrepresenting the Claimant in this matter on June 29, 2023.  The Full Commission entered an order \n\nJOHNSON – H106771 \n \n3 \n \ngranting the Claimant’s attorney motion to withdraw from representing her in this matter on July \n11, 2023.   \n Since this time, there has been no bona fide action on the part of the Claimant to prosecute \nher claim for workers’ compensation benefits, or otherwise pursue a resolution to this matter.   \nAs  a  result,  on November  29, 2023,  the Respondents  filed with  the Commission a \nRespondents’ Motion to Dismiss for Failure to Prosecute, along with a Certificate of Service.  The \nRespondents notified the Claimant of their motion for dismissal by way of depositing a copy of \nthe pleading thereof in the United States Mail.  \nThe Commission sent a letter to the Claimant’s last known address with the Commission \non November 30, 2023, informing her of the Respondents’ motion for dismissal.  Said letter was \nsent via both first-class  and  certified  mail.  Per  this  correspondence, the  Claimant  was  given a \ndeadline of twenty days to file a written response to the Respondents’ motion. \nTracking information from the United States Postal Service shows that on December 16, \n2023, the above-mentioned certified letter was delivered to the Claimant’s home and left with an \nindividual.  The Signature and Recipient section of this document shows that the Claimant signed \nfor  delivery  of  this correspondence.   The proof  of  delivery receipt bears the Claimant’s printed \nname and her signature.  Moreover, the letter sent by first-class mail has not been returned to the \nCommission. \n Yet, there was no response from the Claimant.   \nTherefore, pursuant to a Notice of Hearing dated January 4, 2024, the Commission notified \nthe parties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim \ndue to a lack of prosecution.  Said dismissal hearing was scheduled for February 7, 2024, at 9:00 \na.m., at the Union County Courthouse in El Dorado, Arkansas. \n\nJOHNSON – H106771 \n \n4 \n \nThe hearing notice was sent to the Claimant via both first-class and certified mail.  Tracking \ninformation received from the United States Postal Service shows that they were unable to find \nany delivery information in their records for this item.  However, the hearing notice sent to the \nClaimant via first-class mail has not been returned to the Commission.  \nStill, there was no response from the Claimant.  \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nof this claim for a lack of prosecution as scheduled.  The Claimant did not appear at the dismissal \nhearing, and she has not responded to the notices of this Commission.  However, the Respondents \nappeared through their attorney and argued for dismissal of this claim due to a lack of prosecution.    \nThe Respondents pointed out that there is no record of a hearing ever being requested in \nthis matter.  As a result, the Respondents made the dismissal request.  Counsel for the Respondents \nalso pointed out that the Claimant has failed to appear at the hearing and has not objected to her \nclaim being dismissed.  Therefore, the Respondents asked for dismissal without prejudice.  \nThe  record  before  me proves  that the  Claimant has failed  to  prosecute  her claim  for \nworkers’ compensation benefits.  The Claimant has not ever requested a hearing since the filing of \nher claim.  She did not appear at the hearing to object to her claim being dismissed and she has not \nresponded to the notices of this Commission.   \nUnder these circumstances, I am compelled to find that the evidence preponderates that the \nClaimant has abandoned her claim for workers’ compensation benefits.  Therefore, per Ark. Code \nAnn. §11-9-702 and Rule 099.13 of this Commission, I find that this claim should be and is hereby \nrespectfully dismissed, without prejudice to the refiling of it with the limitation period specified \nby law.   \n \n\nJOHNSON – H106771 \n \n5 \n \n                              FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim due to a lack of prosecution, for which a hearing was held. \n \n3. The Claimant has not ever requested a hearing since the filing of her claim \nvia  the  Form  AR-C,  and  she  has  objected  to  her  claim  being  dismissed.  \nHence, the evidence preponderates that the Claimant has failed to prosecute \nher claim for workers’ compensation benefits.      \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby granted, without prejudice, per Ark. Code  Ann. §11-9-702, and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \nORDER \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. 11-9-702, and Arkansas Workers’ Compensation \nCommission  Rule 099.13, without  prejudice, to  the  refiling  of it, within the limitation  period \nspecified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":9628,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H106771 CHELSEA JOHNSON, EMPLOYEE CLAIMANT OUACHITA COUNTY MEDICAL CENTER, EMPLOYER RESPONDENT AHA WORKERS’ COMPENSATION SIF, INSURANCE CARRIER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED APRIL 16, 2024 Hearing ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:55:23.588Z"},{"id":"alj-H106924-2024-04-16","awccNumber":"H106924","decisionDate":"2024-04-16","decisionYear":2024,"opinionType":"alj","claimantName":"Terry Sanders","employerName":null,"title":"SANDERS VS. AIRGASS USA, LLCAWCC# H106924April 16, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SANDERS_TERRY_H106924_20240416.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SANDERS_TERRY_H106924_20240416.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H106924 \n \nTERRY SANDERS,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nAIRGASS USA, LLC, \nEMPLOYER                                                                                                         RESPONDENT \n \nAIU INS. CO./ \nGALLAGHER BASSETT SERVICES, INC. \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \n \nOPINION TO DISMISS WITHOUT PREJUDICE \nFILED APRIL 16, 2024 \n \nHearing conducted on Thursday, April 11, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in El Dorado, \nUnion County, Arkansas. \n \nThe claimant, Mr. Terry Sanders, pro se, of El Dorado, Union County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable Rick Behring, Jr., Newkirk & Jones Law \nFirm, Little Rock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n        A hearing was conducted on Thursday, April 11, 2024, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark. Code  Ann. §  11-9-702(a)(4)  (2024 Lexis \nReplacement) and Commission Rule 099.13 (2024 Lexis Repl.). \n        This claim was the subject of a prior hearing based on the respondents’ motion to dismiss for \nlack of prosecution. On August 4, 2023, the respondents filed their first motion to dismiss for lack \nof prosecution and incorporated brief in support thereof (8/24/2023 MTD) with the Commission. \nA hearing was conducted on this motion on October 10, 2023. The claimant appeared in person at \nthe MTD hearing, and advised the ALJ on the record he wished to request a hearing on his claim. \nTherefore, the ALJ denied the respondents’ 8/24/2023 MTD, and his office sent out to the parties \n\nTerry Sanders, AWCC No. H106924 \n2 \n \nthe prehearing questionnaire documents in anticipation of setting a prehearing teleconference, and \nproceeding   to   a   hearing.   (October   10,   2023, Hearing Transcript;   Opinion   Denying   the \nRespondents’ MTD filed October 12, 2023. And see, Respondents’ Exhibit 1 of the April 11, 2024, \nhearing, at 10-13). Thereafter, even after having formally requesting a hearing on the record and \nhaving received the prehearing questionnaire documents, the claimant failed and/or refused to file \na prehearing  response, or to communicate  with the Commission or the respondents in any way. \n(RX1 at 14).  \n       Consequently,  the  respondents’  renewed  their  request  this  claim  be  dismissed  without \nprejudice via email to the ALJ dated January 5, 2024, based on the 8/24/2023 MTD, as well as the \nfact the claimant failed and/or refused to respond to the prehearing questionnaire, and/or take any \nsteps whatsoever to prosecute his claim since the ALJ’s October 12, 2023, opinion denying the \nrespondents’ request for dismissal at that time. (RX1 at 15).  \n       Pursuant  to  the  applicable  law and  in  advance  of  the second hearing on the respondents’ \nrenewed MTD request, the claimant was mailed a copy of the respondents’ second MTD request \nand the subject hearing notice via the United States Postal Service (USPS), Certified Mail, Return \nReceipt Requested, which he received on February 2, 2024. (Commission’s Exhibit 1). Thereafter, \nthe claimant failed and/or refused to object to the respondents’ MTD, or to respond in any way to \neither the Commission or to the respondents; and he failed and/or refused to appear at the subject \nhearing. (4/11/2024 Hearing Transcript; RX1). \n       The record herein consists of the hearing transcript of the first MTD hearing held on October \n10, 2023, and any and all exhibits contained therein and attached thereto; as well as the hearing \ntranscript  and  any  and  all  exhibits  contained  therein  and  attached  thereto  of  the  second  MTD \nhearing conducted on April 11, 2024 (herein incorporated by reference). \n\nTerry Sanders, AWCC No. H106924 \n3 \n \nDISCUSSION \n        Consistent with Ark. Code Ann.§ 11-9-702(a)(4), as well as our court of appeals’ ruling in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim at this time. \n        Therefore,  after a thorough consideration of  the facts, issues, the applicable law,  and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed and received due and legal notice of both the respondents’ current \nMTD and  the  subject  hearing date, time,  and  place, the  claimant neither  inquired \nconcerning nor objected nor responded to the motion in any way, and he did not appear, \nnor  cause  anyone  to  appear  on his behalf, at  the  subject  hearing – the  second  hearing \nconducted  on  the  respondents’  request  this  claim  be  dismissed  without  prejudice. \nTherefore, the claimant is deemed to have waived his right to a hearing on the respondents’ \ncurrent motion to dismiss without prejudice. \n \n3. The claimant has to date failed and/or refused to request a hearing within the last six (6) \nmonths, and he has failed and/or refused to take any action(s) whatsoever to prosecute his \nclaim, including but not limited to his failure and/or refusal to respond to the prehearing \nquestionnaire documents the ALJ’s office forwarded to both parties after the first October \n10, 2023, hearing on the respondents’ 8/24/2023 MTD. \n \n4. Therefore, the respondents’ current motion to dismiss without prejudice renewed by email \ndated January 5, 2024, should be hereby is GRANTED; and this claim is dismissed without \nprejudice to its refiling pursuant to the deadlines prescribed by Ark. Code Ann. Section 11-\n9-702(a) and (b), and Commission Rule 099.13. \n \n\nTerry Sanders, AWCC No. H106924 \n4 \n \n        This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling this claim if it is refiled \nwithin the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n        If they have not already done so, the respondents hereby are ordered to pay the court reporter’s \ninvoice within twenty (20) days of their receipt thereof. \n        IT IS SO ORDERED. \n                                                            \n____________________________                                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":7387,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H106924 TERRY SANDERS, EMPLOYEE CLAIMANT AIRGASS USA, LLC, EMPLOYER RESPONDENT AIU INS. CO./ GALLAGHER BASSETT SERVICES, INC. CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED APRIL 16, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:25.777Z"},{"id":"alj-H205427-2024-04-15","awccNumber":"H205427","decisionDate":"2024-04-15","decisionYear":2024,"opinionType":"alj","claimantName":"Crystal Jackson-Light","employerName":null,"title":"JACKSON-LIGHT VS. GPM INVESTMENTS, LLCAWCC# H205427April 15, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/JACKSON-LIGHT_CRYSTAL_H205427_20240415.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACKSON-LIGHT_CRYSTAL_H205427_20240415.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H205427 \n \n \nCRYSTAL JACKSON-LIGHT, \nEMPLOYEE                                                                                                                 CLAIMANT \n                                                                                                           \nGPM INVESTMENTS, LLC,   \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nACE AMERICAN INSURANCE COMPANY, \nINSURANCE CARRIER                                                                                        RESPONDENT \n  \nHELMSMAN MANAGEMENT SERVICES, LLC, \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED APRIL 15, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in El Dorado, Union County, \nArkansas. \n \nThe Claimant represented by the Honorable F. Matthew Thomas, III, Attorney at Law, El Dorado, \nArkansas.   \n \nThe Respondents represented by the Honorable Rick Behring, Jr., Attorney at Law, Little Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \nA hearing was held on March 6, 2024, in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (Repl. 2012), and/or Arkansas Workers’ Compensation Commission Rule \n099.13.  Of note, only the issue pertaining to the motion for dismissal due to a lack of prosecution \nwas addressed during the hearing.  The Respondents’ Motion to Compel has been held in abeyance \nat this time.  \n\nJACKSON-LIGHT – H205427 \n \n2 \n \nAppropriate Notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.  The Claimant waived her appearance at the hearing.  No testimony \nwas taken during the dismissal hearing.   \n The record consists of the transcript of the March 6, 2024, hearing and the documents held \ntherein.  Admitted  into  evidence  was  Respondents’  Exhibit  1,  pleadings, correspondence, \nunexecuted authorizations, discovery  requests, and various  other forms  related  to  this  claim, \nconsisting  of twenty-seven  numbered pages.   Additionally,  in  order  to  address  adequately  this \nmatter  under  Ark.  Code  Ann.  §  11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the \nhearing  . . . in a manner which best ascertains the rights of the parties”), and without objection, I \nhave blue-backed to the record forms, pleadings, and correspondence from the Commission’s file \non the claim, consisting of twelve totaled pages.  In accordance with Sapp v. Tyson Foods, Inc., \n2010  Ark.  App.  517,  ___  S.W.3d  ___,  these  documents  have  been served  on  the  parties  in \nconjunction with this opinion. \n                                                                    Background \nThe Claimant’s  attorney filed with  the Commission a claim for Arkansas workers’ \ncompensation benefits on behalf of the Claimant by way of a Form AR-C, on October 16, 2023.  \nAccording to this document, the Claimant alleged, among other things, that she sustained injuries \nduring a motor vehicle accident to her whole body on July 21, 2022, while performing employment \nduties  for  the  respondent-employer.   Per  the  Claim  Information  section  of  this document,  the \nClaimant’s requested only initial workers’ compensation benefits.  Also,  there  is  a  handwritten \nnote in this section, which reads, “All benefits due under the color of law.”    \nPreviously, on August  8,  2022,  the  respondent-carrier  filed  a  Form  AR-2  with the \nCommission confirming that they  were challenging the  claim.  Particularly,  the  Respondents’ \n\nJACKSON-LIGHT – H205427 \n \n3 \n \nposition for denying the claim included: “Tested positive for methamphetamines at initial hospital \nintake.  The mere presence of alcohol or drugs creates a rebuttable presumption that the accident \nwas substantially occasioned by the use of the drugs or alcohol.”      \nSubsequently, there was no activity on the claim.         \n As a result, on January 5, 2024, the Respondents filed with the Commission a Respondents’ \nMotion to Compel or Dismiss and  Incorporated Brief in Support, which  was accompanied by a \nCertificate of Service.  Per this pleading, the Respondents served a copy of the foregoing pleadings \non the Claimant’s attorney by e-mailing a copy thereof to his law firm.  \nThe Commission sent a letter notice on January 10, 2024, to the Claimant and her attorney \ninforming them of the Respondents’ motion.  Said letter was mailed to the Claimant by both first-\nclass  and  certified  mail.  Per  this  correspondence, the  Claimant  was  given a  deadline of twenty \ndays for filing a written response to the Respondents’ motion to dismiss.  \nHowever, the United States Postal Service informed the Commission on January 22, 2024, \nthat they were unable to deliver this item to the Claimant.  On the contrary, the letter notice sent \nto the Claimant by first- class mail has not been returned to the Commission.  \nNevertheless, there was no response from the Claimant or her attorney.   \nThe  Commission  sent  a Notice of  Hearing dated February  1,  2024, to the  parties letting \nthem  know  that a dismissal hearing had  been scheduled to address the Respondents’ motion to \ndismiss this claim due to a lack of prosecution.  The notice was sent to the Claimant via certified \nand first-class mail.  Said hearing was scheduled for February 1, 2024, at 10:00 a.m., in El Dorado, \nArkansas. \n\nJACKSON-LIGHT – H205427 \n \n4 \n \nOn February 2, 2024, the Claimant’s attorney submitted a Motion to Withdraw from \nrepresenting the Claimant in this matter.   I entered an order on February 12, 2024\n1\n denying the \nClaimant’s attorney motion for withdrawal.    \nTracking information received by the Commission from the United States Postal Service \nshows that on February 8, 2024, they returned the hearing notice sent to the Claimant by certified \nmail because it was “unclaimed.” However, the notice sent by first-class mail has not been returned \nto the Commission.  \nStill,  there was no  response  from  the Claimant  until  March  5,  2024.  At  that  time,  the \nClaimant sent an email to the Commission saying she had planned to attend the hearing but was \nunable to get transportation from Mississippi to El Dorado.  The Claimant objected to her claim \nbeing dismissed and apologized for not being able to attend the hearing.     \n The following day, on March 6, 2024, a hearing was in fact conducted on the Respondents’ \nmotion for dismissal as scheduled.  As noted above, the Claimant did not appear at the dismissal \nhearing.  However,  the Respondents appeared  through  their  attorney.  The Claimant’s attorney \nalso attended the hearing.   \nCounsel for the Respondents noted that the Claimant has failed to promptly prosecute her \nclaim for workers’ compensation benefits.  The Respondents attorney noted that there has been no \nattempt on the part of the Claimant to move forward with a hearing since the filing of the Form \nAR-C,  which  was  done on October  16,  2023.  Counsel  indicated, among  other  things, that  this \nclaim should be dismissed, without prejudice due to all the afore reasons.  \nIn the  alternative, the Respondents counsel  asked that the Commission enter an order to \ncompel the Claimant to provide complete discovery responses and executed authorizations within \n \n1\n There is a clerical error on my order denying the Claimant’s attorney Motion to Withdraw.  The order \nstates it was entered on January 8, 2024.  Instead, the correct date for the order appears to be February 12, 2024.   \n\nJACKSON-LIGHT – H205427 \n \n5 \n \nan agreed amount of time and sanctions for the cost and expense of having to get her to participate.  \nAs  previously  noted  above,  the  motion  to  compel  has  been  held  in  abeyance  and  will  not  be \naddressed in this opinion. \nDuring the hearing, the Claimant’s attorney noted that the Claimant sent an e-mail to him \non January 25, 2024, saying that she was terminating his services and no longer wanted him to \nrepresent her in this workers’ compensation claim.  This e-mail has been made a part of the record \nbut has been heavily redacted due to the nature of some of the language.  The Claimant’s attorney \nforwarded this e-mail to the Commission after the hearing.  His e-mail was sent on March 6, 2024, \nimmediately following the dismissal hearing.   Counsel for the Claimant asked that he be removed \nas attorney of record in this matter per the Claimant’s request.   The Claimant’s attorney is hereby \nremoved as counsel of record in this matter for the Claimant.    \nRegarding  the  motion  for  dismissal, Respondents  at  the  hearing  asked  for  a  dismissal \nwithout prejudice because the Claimant has not requested a hearing since the filing of the Form \nAR-C,  which  was  filed in October 2023.    However,  the  Claimant authored an  e-mail  as  noted \nabove asking that her claim not be dismissed.  Under these circumstances, based on my review of \nthe documentary evidence, and all other matters before this Commission, I find that the dismissal \nof this claim is not warranted at this time.  Accordingly, the Respondents’ motion to dismiss this \nclaim is hereby respectfully denied. \nA  word  of  caution  to  the  Claimant,  although  Claimant has  indicated  that  she  wishes  to \npursue her claim, if she does not do so in a prompt manner, then the Respondents may renew their \nmotion to dismiss this claim for a lack of prosecution.   \nI hereby ask that this file be reassigned to this office after the filing of the within opinion \nfor the initiation of the prehearing process.        \n\nJACKSON-LIGHT – H205427 \n \n6 \n \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since the filing of the Form AR-\nC in  October  2023.  Later,  the Claimant objected  to  her  claim  being \ndismissed and  indicated  that  she  wishes  to  pursue  her  claim for workers’ \ncompensation benefits.      \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby respectfully denied at this time.  \n \n            6. The Claimant’s attorney is hereby relieved as counsel of record in this \nclaim.  \n \nORDER \nIn accordance with the foregoing findings of fact and conclusions of the law set forth above, \nthe Respondents’ Motion to Dismiss this claim is respectfully denied at this time. \n IT IS SO ORDERED. \n \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":11601,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H205427 CRYSTAL JACKSON-LIGHT, EMPLOYEE CLAIMANT GPM INVESTMENTS, LLC, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT HELMSMAN MANAGEMENT SERVICES, LLC, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED APRIL 15, 2024 Hea...","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:21.440Z"},{"id":"alj-H400938-2024-04-14","awccNumber":"H400938","decisionDate":"2024-04-14","decisionYear":2024,"opinionType":"alj","claimantName":"Jonathan Davis","employerName":"Central Maloney, Inc","title":"DAVIS VS. CENTRAL MALONEY, INC. AWCC# H400938 April 14, 2025","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/DAVIS_JONATHAN_H400938_20240414.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVIS_JONATHAN_H400938_20240414.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM No H400938 \n \nJONATHAN DAVIS, EMPLOYEE       CLAIMANT \n \nvs. \n \nCENTRAL MALONEY, INC., SELF-INSURED EMPLOYER,       RESPONDENT \n                           \n \nRISK MANAGEMENT RESOURCES,  \nTHIRD PARTY ADMINISTRATOR                     RESPONDENT \n \n \n \nOPINION & ORDER FILED 14 APRIL 2025 \n \n \nThis claim was heard before Arkansas Workers’ Compensation Commission Administrative \nLaw Judge JayO. Howe on 29 January 2025 in Little Rock, Arkansas. \n \nThe claimant was represented by Mr. Mark Alan Peoples. \n \nThe respondents were represented by Friday, Eldredge & Clark, LLP, Mr. Guy Alton Wade. \n \nSTATEMENT OF THE CASE \n \n A Prehearing Order was entered on 18 September 2024 and admitted to the hearing \nrecord without objection as Commission’s Exhibit No 1. As outlined in that Order, the \nparties agreed to the following: \nSTIPULATIONS \n \n 1. The Commission has jurisdiction over this claim. \n \n2.  The self-insured employer/employee/third party administrator relationship \nexisted at all relevant times, including on 26 January 2024, when the \nclaimant allegedly sustained a compensable injury. \n  \n3. At the time relevant to this matter, the claimant earned an average weekly \nwage of $1,107.24, which would entitle him to compensation rates of $738 \nand $554 per week for temporary total disability (TTD) benefits and \npermanent partial disability (PPD) benefits, respectively. \n \n 4. The respondents have denied this claim in its entirety. \n\nJ. DAVIS- H400938 \n2 \n \n \nISSUES \n \n1. Whether the claimant suffered a compensable injury to his left lower \nextremity by specific incident. \n \n2. Whether the claimant is entitled to TTD benefits. \n \n3. Whether the claimant is entitled to medical benefits. \n \n 4. Whether the claimant is entitled to an attorney’s fee. \n \n All other issues are reserved. \n \nCONTENTIONS \n \n The parties’ contentions were incorporated by reference into the Prehearing Order \nfrom their prehearing filings. According to those filings, the claimant contends (1) that he \nsustained a work-related injury to his left knee on or about 26 January 2024; (2) that he is \nentitled to TTD from the date of injury until 25 May 2024; (3) that he is entitled to medical \ntreatment related to his work injury; and (4) that he is entitled to an attorney’s fee on \ncontroverted benefits. \n The respondents contend that the claimant did not sustain a compensable work \ninjury within the course and scope of his employment or while performing employment \nservices. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole, including the evidence summarized below, \nand having heard testimony from the witness, observing his demeanor, I make the \nfollowing findings of fact and conclusions of law under A.C.A. § 11-9-704: \n1. The Commission has jurisdiction over this claim. \n2. The stipulations as set forth above are accepted. \n3. The claimant failed to prove by a preponderance of the evidence that he \nsuffered a compensable injury by specific incident to his left lower extremity. \n \n\nJ. DAVIS- H400938 \n3 \n \n4. Because the claimant failed to meet his burden on his claim of a compensable \ninjury, the remaining issues are moot and will not be addressed in this \nopinion. \n \nSUMMARY OF THE EVIDENCE \n \n As noted above, the Prehearing Order was admitted to the record as Commission’s \nExhibit No 1. The claimant was the only witness at the hearing. He submitted an exhibit \nthat consisted of one index page and twenty-one pages of medical records. That exhibit was \nentered into the record without objection as Claimant’s Exhibit No 1. The evidentiary record \nconsists of the claimant’s testimony and these two exhibits. \n Claimant Jonathan Davis \n \n The claimant testified that he has worked for the respondent-employer for 32 years.  \nHe was working as a warehouseman at the time of his injury. According to his testimony, \nhis job duties included loading and unloading trucks and moving inventory and materials \naround the warehouse facilities with a forklift. \n On the day of his injury, the claimant was moving a load of empty boxes from the \nwarehouse to the facility’s box crusher. It was towards the end of his shift on a Friday, and \nhauling discarded boxes out to be crushed was part of the usual cleanup work around that \ntime. He described having to pass through a high-traffic area (with other forklifts coming \nand going) on the way out to the box crusher. Instead of moving on through the area or just \nwaiting for the other forklifts to clear the area, the claimant backed his forklift out of the \nway and parked it in a side area. He then left the vehicle and walked away to ask a \ncoworker, Lisa McFarland, about her plans for the weekend. On the walk back to the \nforklift, he struck his left knee against a metal object and fell. He was subsequently \ndiagnosed with a left quadriceps tendon rupture and underwent surgical repair. \n\nJ. DAVIS- H400938 \n4 \n \n On cross-examination, the claimant confirmed that he was not making a delivery to \nhis coworker’s department, that her department was outside of the warehouse, and that she \ndid not work at the box crusher. He testified: \nQ:  Okay. Now, the conversation you had with Ms. McFarland was not \nrelated to your job as a warehouseman, was it? \n \nA:  Correct. \n \nQ:  It had nothing to do with your job that day, did it? \n \nA:  Correct. \n \nQ:  And after you talked to her, you turned around and walked away, and \nthat’s when you ended up striking your knee, is that right? \n \nA:  Correct. \n \nQ:  You didn’t hurt anything else, did you? \n \nA:  No. \n \nQ:  Now, if you had not gotten off your forklift, you had just sat there and \nwaited for whatever to clear, you wouldn’t have gotten hurt that day, would \nyou? \n \nA:  Possibly not. \n \nQ:  Okay. It only happened whenever you got off and went to visit with Ms. \nMcFarland, correct? \n \nA:  Correct. \n \nQ:  Now, after this event, you’re on your way back, you ended up falling \ndown. You ended up having to get help to get back on your fork truck, \ncorrect? \n \nA:  Correct. \n \nQ:  And instead of driving to the box crusher, you ended up driving back to \nthe warehouse, didn’t you? \n \nA:  Correct. \n \nQ:  So, you didn’t even make the delivery you had intended to make at the \ntime? \n \n\nJ. DAVIS- H400938 \n5 \n \nA:  Correct. \n \n[TR at 24-25.] The claimant also acknowledged that he was not supposed to be off the \nforklift and on the floor of Ms. McFarland’s work area at the time that he hurt himself.  \nAfter returning to the warehouse, the claimant reported his injury and was taken for \nan initial medical evaluation. Shortly thereafter, he learned that his claim was being \ndenied. The claimant continued to seek treatment on his own, utilizing his employee group \nhealth insurance. He seeks TTD benefits from the date of his injury until 25 May 2024. \nADJUDICATION \nA compensable injury is defined, in part, as an accidental injury which arises out of \nand in the course of employment. A.C.A. § 11-9-102(4)(A)(i). However, a compensable injury \ndoes not include an injury “inflicted upon the employee at a time when employment services \nwere not being performed.” Id. §11-9-102(4)(B)(iii). \nIn Haynes v. Ozark Guidance Ctr., Inc., 2011 Ark. App. 396, 384 S.W.3d 570, the \nCourt of Appeals, citing Texarkana Sch. Dist. v. Conner, 373 Ark. 372, 284 S.W.3d 57 \n(2008), explained: \nOur supreme court has held that an employee is performing \"employment \nservices\" when he or she \"is doing something that is generally required by his \nor her employer.\" [...] The critical inquiry is whether the interests of the \nemployer were being directly or indirectly advanced by the employee at the \ntime of the injury. Id. at 377, 284 S.W.3d at 61. Moreover, the issue of \nwhether an employee was performing employment services within the course \nof employment depends on the particular facts and circumstances of each \ncase.  \n The facts in this claim are not in dispute. The question is whether the claimant was \nperforming employment services at the time that he was injured. The Court of Appeals just \nrecently affirmed the denial of benefits in a case where a school district employee had been \ndriving his personal vehicle to and from an out-of-town meeting. He stopped on the side of \nthe highway to render aid at the scene of an accident. A second accident then occurred at \n\nJ. DAVIS- H400938 \n6 \n \nthe same scene, and he was struck and killed by projectile debris. The Court found that “he \nwas not performing any activity inherently necessary for the performance of his job, nor \nwas he directly or indirectly advancing his employer’s interest.” Williams v. Malvern Sch. \nDist. Ark. Sch. Bds. Ass’n., 2025 Ark. App. 208. \n The claimant in the instant claim argues that his injury should be compensable \nbecause he was on the clock at the time of his injury and because his conversation with Ms. \nMcFarland only lasted for about a minute. He suggests that White v. Georgia-Pacific Corp., \n339 Ark. 474, 6 S.Wd.3d 98 (1999) instructs a finding in his favor. In White our Supreme \nCourt found an injury was compensable when an employee was injured during a smoke \nbreak. But even during his break, that employee was required to monitor his work area \ncontinually and to be immediately available as needed. The employer was found to have \nstill benefited from the employee’s attention while he was standing by.  \nThe Court in Haynes distinguished that scenario from a number of others where \nemployees were not found to be performing employment services at the time of their \ninjuries: \nHill v. LDA Leasing, Inc., 2010 Ark. App. 271, 374 S.W.3d 268 (holding that a \ntruck driver, who left his truck at the loading dock and was injured while \noperating a vending machine, was not performing employment services; the \ntruck driver at the time of his fall in the break room was not in a position to \nperform any of the duties required of him by his employer); McKinney v. \nTrane Co., 84 Ark. App. 424, 143 S.W.3d 581 (2004) (affirming the \nCommission's finding that an employee who was injured when he jumped \nover tube-sheet buckets to get a soda on his way to a smoke break was not \nperforming employment services; holding that the employer gleaned no \nbenefit from the employee's activities on break); Smith v. City of Fort Smith, \n84 Ark. App. 430, 143 S.W.3d 593 (2004) (affirming the Commission's finding \nthat a dump-truck driver, who hauled gravel waste, was not performing \nemployment services when, while still on the clock, he injured himself loading \ngravel into his personal dump truck—a permitted activity; we rejected the \nemployee's argument that his actions directly benefited his employer, holding \nthat the activity must also be inherently necessary for the performance of his \nprimary job); and Harding v. City of Texarkana, 62 Ark. App. 137, 970 \nS.W.2d 303 (1998) (holding that a 911 operator, who was injured on her way \n\nJ. DAVIS- H400938 \n7 \n \nto a smoke break when she tripped over a rolled-up carpet, was not \nperforming employment services because the break was not inherently \nnecessary for the performance of the job she was hired to do). \n \n Here, despite the fact that the claimant was injured during the time and space \nboundaries of his employment, I do not find the employer’s interests to have been advanced \nby the claimant’s deviation from his job duties. He testified that he was tasked at the time \nwith delivering a load of boxes from the warehouse out to a box crushing machine. That \ndelivery was not completed, though, because the claimant stopped his forklift near a busy \nintersection, parked it somewhere out of the way and off the route between his warehouse \nand the box crushing machine, and then walked over to another department for a purely \npersonal conversation with a coworker. He was hurt making his way back to the forklift.  \nA lark and a tarry, a frolic and a detour—however one might describe his walking \naway from a job duty to talk with a friend— it was certainly not required work activity. The \nrespondent-employer derived no direct or indirect benefit from the claimant’s off-task \nactivities that resulted in his injury. Accordingly, I find that he has failed to prove by a \npreponderance of the evidence that he was performing employment services at the time of \nhis injury. He, therefore, he has not shown that he suffered a compensable injury. Because \nhe has failed to meet his burden on compensability, his claimed entitlement to associated \nbenefits are moot and will not be addressed in this opinion. \nCONCLUSION \nConsistent with the Findings of Fact and Conclusions of Law set forth above, this \nclaim for initial benefits is DENIED and DISMISSED. \n IT IS SO ORDERED.    \n______________________________________ \n       JayO. Howe \n       Administrative Law Judge","textLength":12840,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM No H400938 JONATHAN DAVIS, EMPLOYEE CLAIMANT vs. CENTRAL MALONEY, INC., SELF-INSURED EMPLOYER, RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION & ORDER FILED 14 APRIL 2025 This claim was heard before Arkansas Workers’ Compensat...","outcome":"denied","outcomeKeywords":["affirmed:2","dismissed:1","denied:3"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T22:41:38.732Z"},{"id":"full_commission-G708582-2024-04-12","awccNumber":"G708582","decisionDate":"2024-04-12","decisionYear":2024,"opinionType":"full_commission","claimantName":"Linda Bradley","employerName":"Pine Bluff School District","title":"BRADLEY VS. PINE BLUFF SCHOOL DISTRICT AWCC# G708582 APRIL 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Bradley_Linda_G708582_20240412.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Bradley_Linda_G708582_20240412.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. G708582 \n \nLINDA K. BRADLEY, EMPLOYEE  CLAIMANT \n \nPINE BLUFF SCHOOL DISTRICT, EMPLOYER        RESPONDENT NO. 1 \n \nAR SCHOOL BOARDS ASSOCIATION WCT              \nINSURANCE CARRIER                                               RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL DISABILITY  \nTRUST FUND                                                              RESPONDENT NO. 2\n   \n \nOPINION FILED APRIL 12, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE MELISSA WOOD, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondent No. 2 represented by the HONORABLE DAVID L. PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n  Claimant appeals an opinion and order of the Administrative \nLaw Judge filed November 17, 2023. In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1.  The AWCC has jurisdiction over this claim. \n \n\n \nBradley-G708582    2  \n \n \n2. The stipulations offered by the parties are accepted as \nfact. \n \n3. The claimant failed to establish, by a preponderance of the \nevidence, that she is entitled to the additional benefits \nsought in connection with her compensable injuries. \n \n4. Accordingly, this claim is dismissed. \n \n  We have carefully conducted a de novo review of the entire \nrecord herein and it is our opinion that the Administrative Law Judge's \ndecision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed. Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n  Therefore, we affirm and adopt the November 17, 2023 \ndecision of the Administrative Law Judge, including all findings and \nconclusions therein, as the decision of the Full Commission on appeal.  \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \nCommissioner Willhite concurs and dissents.                                       \n\n \nBradley-G708582    3  \n \n \n                  CONCURRING AND DISSENTING OPINION \nThe Administrative Law Judge (hereinafter, “ALJ) found that, inter \nalia, the Claimant has failed to prove, by a preponderance of the evidence, \nthat she is permanently and totally disabled or entitled to wage-loss \ndisability benefits as a result of her admittedly compensable shoulder injury \non December 4, 2017 for which she was given a 4% permanent impairment \nrating.  After conducting a thorough review of the record, I would find that \nthe Claimant is entitled to a 10% wage-loss disability benefit for her \ncompensable shoulder injury. \nArk. Code Ann. § 11-9-522 provides in pertinent part:  \n(b)(1) In considering claims for permanent partial disability \nbenefits in excess of the employee’s percentage of permanent \nphysical impairment, the Workers’ Compensation Commission \nmay take into account, in addition to the percentage of \npermanent physical impairment, such factors as the \nemployee’s age, education, work experience, and other \nmatters reasonably expected to affect his or her future earning \ncapacity.  \nWhen a Claimant has been assigned an anatomical impairment \nrating to the body as a whole, the Commission has the authority to increase \n\n \nBradley-G708582    4  \n \n \nthe disability rating, and it can find a Claimant totally and permanently \ndisabled based upon wage loss factors.  Milton v. K-Tops Plastic Mfg. Co., \n2012 Ark. App. 175, 392 S.W.3d 364 (Ark. App. 2012).  The wage loss \nfactor is the extent to which a compensable injury has affected the \nClaimant’s ability to earn a livelihood.  Id.  The Commission is charged with \nthe duty of determining disability based upon a consideration of medical \nevidence and other matters affecting wage loss, such as the Claimant’s \nage, education, and work experience.  Id.  In considering factors that may \naffect an employee’s future earning capacity, the court considers the \nClaimant’s motivation to return to work, since a lack of interest or a negative \nattitude impedes our assessment of the Claimant’s loss of earning capacity. \nId.  A Claimant’s lack of interest, however, is not a complete bar in \nassessing wage loss benefits.  Drake v. Sheridan Sch. Dist., 2013 Ark. App. \n150. \n The record supports a finding that the Claimant is entitled to wage-\nloss benefits.  The Claimant was given a 4% permanent impairment rating \nto the body as a whole by Dr. Charles Pearce on June 9, 2022 for her \ncompensable shoulder injury.  At the time of the hearing, the Claimant was \nsixty-two years old. The Claimant’s education consists of a cosmetology \ndegree obtained in the 1980’s, a bachelor’s degree in psychology obtained \nin 1988, and a secretarial word-processing certificate obtained in 1990 for a \n\n \nBradley-G708582    5  \n \n \ndos computer system.  The Claimant’s work experience prior to working for \nthe Respondent consisted of working as a form editing clerk for the Census \nBureau for a summer while she was in college, a program operations \nassistant at the Pine Bluff Convention Center, and a correctional officer at \nthe Arkansas Department of Corrections in the mid-to-late 1990’s.  \n Since the workplace accident, the Claimant has not been able to earn \nmeaningful  wages  in  the  same  or  other  employment.    The  Claimant  was \nreleased to return to work without restrictions by her treating physician, Dr. \nEric  Gordon.    Claimant  briefly  returned to  work  with  Respondent  but  was \nphysically incapable of performing her job duties both as a secretary and a \nparaprofessional.  Claimant then sought and was granted a one-time right to \nchange  physicians  and  began  treating  under  Dr.  Shahryar  Ahmadi  who \ndiagnosed the Claimant’s condition as subacromial bursitis recommending \nsurgery and further treatment.  The Claimant testified that she suffers from \ndecreased range of motion in her shoulder and must hold her arm at a 90-\ndegree angle to perform basic secretarial work such as typing. Additionally, \nthe  Claimant  provided  credible  testimony  that  she  continues  to  suffer  from \nsevere pain which was corroborated by her use of prescription opioids and \nnerve blocks.  Further she is unable to dress herself fully, wash her hair in \nthe shower, or care for her daughter with Aspergers.  \n\n \nBradley-G708582    6  \n \n \n In order to avoid a wage-loss award, the Respondent has the burden \nof proving the employee received a bona fide offer to be employed at wages \nequal to or greater than her average weekly wage at the time of the accident. \nArk. Code Ann. § 11-9-522(c)(1).  Employers have been held as having failed \nto  make  a  bona  fide  offer  of  employment  when  the  duties  exceeds  the \nemployee’s physical limitations.  Foster v. Gilster Mary Lee Corp., 2011 Ark. \nApp. 735, 387 S.W.3d 212 (2011) and, Wal-Mart Assocs. V. Keys, 2012 Ark. \nApp.  559,  423  S.W.3d  683  (2012).    Following  the  release  by  Dr.  Gordon, \nRespondent gave Claimant a position she was unable to perform and then \nmoved her to her former position as a paraprofessional which she was unable \nto perform.  Based upon these facts, I find that Respondent failed to prove \nthat Claimant received an appropriate, bona fide offer of employment and a \nwage-loss award is warranted.  \n  I further find that the Claimant’s future earning capacity has been \naffected by her compensable injury and that she is entitled to a ten percent \n(10%) wage-loss benefit.  \n For the foregoing reasons, I must dissent. \n \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":8066,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G708582 LINDA K. BRADLEY, EMPLOYEE CLAIMANT PINE BLUFF SCHOOL DISTRICT, EMPLOYER RESPONDENT NO. 1 AR SCHOOL BOARDS ASSOCIATION WCT INSURANCE CARRIER RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO....","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:29:45.759Z"},{"id":"alj-H300134-2024-04-12","awccNumber":"H300134","decisionDate":"2024-04-12","decisionYear":2024,"opinionType":"alj","claimantName":"Angela Wilburn","employerName":null,"title":"WILBURN VS. QUAPAW CARE & REHABILITATION CENTER, LLCAWCC# H300134April 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILBURN_ANGELA_H300134_20240412.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILBURN_ANGELA_H300134_20240412.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H300134 \n \n \nANGELA WILBURN, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nQUAPAW CARE & REHABILITATION  \nCENTER, LLC, A SUBSIDARY OF CENTRAL  \nARKANSAS NURSING CENTER, LLC,   \nEMPLOYER                                                                                                            RESPONDENT                                                                                                       \n \nINDEMNITY INSURANCE COMPANY \nOF NORTH AMERICA (PA),  \nINSURANCE CARRIER                                                                                        RESPONDENT \n  \nESIS, INC., \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED APRIL 12, 2024   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Hot Springs, Garland County, \nArkansas. \n \nThe Claimant, pro se, did not appear for the hearing.  \n \nThe Respondents represented  by the  Honorable Eric  Newkirk, Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on February 9, 2024, in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode  Ann. §11-9-702 (Repl.  2012), and Arkansas Workers’ Compensation Commission  Rule \n099.13.  \nAppropriate Notice of this hearing was tried on all parties to their last known address, in \nthe manner prescribed by law.   \n\nWILBURN – H300134 \n \n2 \n \nThe record consists of the transcript of the February 9, 2024, hearing and the documents \nheld therein.  Specifically, the Respondents’ Hearing Exhibit consisting of twenty totaled pages \nwas marked  as  Respondents’  Exhibit  1;  and  Commission’s  Exhibit  1  consisting  of  sixteen \nnumbered pages.     \n                                                                  Discussion \nOn January 6, 2023, the Claimant’s former attorney filed with the Commission a claim for  \nArkansas workers’ compensation benefits on  behalf  of  the  Claimant by  way  of  a Form  AR-C.  \nAccording  to  this  Form,  the Claimant alleged that she  sustained  injuries  to  her  left  knee/fibula, \nhips, right knee, both shoulders, and other whole body on November 17, 2022, while performing \nemployment duties for the respondent-employer.  Per this document, the Claimant’s then attorney \nrequested both initial and additional workers’ compensation benefits.  In fact, her former attorney \nchecked off all the boxes for every conceivable benefit under the law in connection with this claim.   \nAlso, on January 6, 2023, the attorney sent a letter to the Commission requesting that the \nCommission ask the Respondents to state their position within fifteen days.  Therefore, on January \n10, 2023,  the  respondent-carrier  filed  a  Form  AR-2  with  the  Commission saying that  the  claim \nwas accepted as compensable.   \nSubsequently, there was no activity on the claim.         \n  However, the Claimant’s attorney filed with the Commission a Motion to Withdraw from \nrepresenting the Claimant in this matter on July 14, 2023.  The Full Commission entered an order \non July 25, 2023, granting the Claimant’s attorney motion to withdraw from representing her on \nthis claim.   \nSince this time, the Claimant has remained unpresented/pro se.  Most significantly, there \nhas  been  no bona fide action  on  the  part  of  the Claimant to  prosecute her claim for workers’ \n\nWILBURN – H300134 \n \n3 \n \ncompensation benefits, or otherwise pursue a resolution to this matter since the filing of the Form \nAR-C.   \nAs  a  result,  on December 20, 2023,  the Respondents  filed with  the Commission a \nRespondents’ Motion to Dismiss for a lack of prosecution, along with a Brief in Support of Motion \nto Dismiss.  The Respondents notified the Claimant of their motion for dismissal of this claim by \nway of depositing a copy thereof in the mail with the United States Postal Service.  \nThe Commission sent a letter notice on December 20, 2023, to the Claimant informing her \nof the Respondents’ motion.  Said letter was mailed to the Claimant by both first-class and certified \nmail.  Per  this  correspondence, the  Claimant  was  given a  deadline of twenty days for  filing  a \nwritten response to the Respondents’ motion to dismiss.  \nHowever, the United States Postal Service informed the Commission on January 11, 2024, \nthat  they were  unable  to deliver  this  item  to  the Claimant.    The  postal  service  returned  this   \ncorrespondence to the Commission as “unclaimed.”  The letter notice sent to the Claimant by first- \nclass mail has not been returned to the Commission.  \nNevertheless, there was no response from the Claimant.   \nThe Commission sent a Hearing Notice dated January 9, 2024, to the parties letting them \nknow that a hearing was scheduled to address the Respondents’ motion to dismiss this claim due \nto  a  lack  of  prosecution.   The  notice  was  sent  to  the  Claimant  via  certified  and  first-class  mail.  \nSaid hearing was scheduled for February 9, 2024, at 10:30 a.m., in Hot Springs, Arkansas. \nTracking information received by the Commission from the United States Postal Service \nshows that on January 18, 2018, they returned the certified mail to the Claimant because it was \n“unclaimed.”  However,  the  notice  sent  by  first-class  mail  has  not  been  returned  to  the \nCommission.  \n\nWILBURN – H300134 \n \n4 \n \nStill, there was no response from the Claimant.  \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Claimant failed to appear at the dismissal hearing.  However, the Respondents \nappeared through their attorney.   \nCounsel noted that the Claimant has failed to promptly prosecute her claim for workers’ \ncompensation  benefits.  Counsel further noted that  there  has  been  no  attempt  on  the  part  of the \nClaimant to move forward with a hearing since the filing of the Form AR-C, which was done on \nJanuary  6,  2023.  Counsel  indicated, among  other  things, that  this claim should  be dismissed, \nwithout prejudice due to all the afore reasons. \nThe record before me proves that the Claimant has failed to timely prosecute her claim for \nworkers’ compensation benefits.  The Claimant has not requested a hearing since the filing of the \nForm AR-C in January 2023, which occurred more than a year ago.  Moreover, Claimant the failed \nto appear at the hearing to object to her claim being dismissed, and she has not responded to the \nnotices of this Commission.  Under these circumstances, I am compelled to find that the evidence \npreponderates that the Claimant has abandoned her claim.  Therefore, per Ark. Code Ann. §11-9-\n702 and Rule 099.13 of this Commission, I find that this claim for workers’ compensation benefits \nshould be and is hereby respectfully dismissed, without prejudice to the refiling of it within the \nlimitation period specified by law.   \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n\nWILBURN – H300134 \n \n5 \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since the filing of the Form AR-\nC over a year ago.  Hence, the evidence preponderates that the Claimant has \nfailed to prosecute her claim for workers’ compensation benefits.      \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby granted, without prejudice, per Ark. Code  Ann. §11-9-702, and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \nORDER \n In  accordance  with  the  findings  of  fact  and  conclusions  of the  law set  forth  above,  this \nclaim is hereby dismissed per Ark. Code Ann. §11-9-702, and Commission Rule 099.13, without \nprejudice, to the refiling of it, within the limitation period specified by law.  \n  IT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":8881,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H300134 ANGELA WILBURN, EMPLOYEE CLAIMANT QUAPAW CARE & REHABILITATION CENTER, LLC, A SUBSIDARY OF CENTRAL ARKANSAS NURSING CENTER, LLC, EMPLOYER RESPONDENT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA (PA), INSURANCE CARRIER RESPONDENT ESIS, INC.,","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:55:19.360Z"},{"id":"full_commission-H004171-2024-04-11","awccNumber":"H004171","decisionDate":"2024-04-11","decisionYear":2024,"opinionType":"full_commission","claimantName":"Joshua Shelton","employerName":"Nucor Yamato Steel Company","title":"SHELTON VS. NUCOR YAMATO STEEL COMPANY AWCC# H004171 APRIL 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Shelton_Joshua_H004171_20240411.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Shelton_Joshua_H004171_20240411.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.   H004171 \n \nJOSHUA SHELTON, \nEMPLOYEE \n \nCLAIMANT \nNUCOR YAMATO STEEL COMPANY,  \nEMPLOYER \n \nRESPONDENT \nARCH INSURANCE COMPANY, CARRIER/ \nSEDGWICK CLAIMS MANAGEMENT, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 11, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \n \n ORDER \n In the above-styled matter, the claimant moves the Full Commission \nto modify our opinion filed March 7, 2024.  The claimant requests that the \nFull Commission “award Claimant’s attorney an attorney’s fee for all \nindemnity benefits, including those previously paid by Respondents[.]\"  The \nFull Commission denies the claimant’s motion.     \n The parties stipulated that the claimant “sustained a compensable \ninjury to his back” on June 25, 2020.  The parties stipulated that the \nrespondents “accepted this claim as compensable and paid some benefits.”   \n\nSHELTON - H004171  2\n  \n \n \n A pre-hearing order was filed on May 10, 2023.  The claimant \ncontended, “On or about June 26, 2020, the Claimant was injured in the \ncourse and scope of his employment stepping across a gap into the roll \nline.  Claimant injured his back.  The Respondents initially accepted the \nclaim as compensable and have paid certain medical and indemnity \nbenefits until approximately January 9, 2022.  The Respondents \ncontroverted the Claimant’s entitlement to additional benefits at that time.  \nThe Claimant’s orthopedic doctor, Dr. Riley Jones, released the Claimant to \nlight duty but the Claimant’s pain management doctor, Dr. Jay McDonald \nhas not released the Claimant and he has recommended additional \ntreatment which has not been authorized.  The Claimant contends that he is \nentitled to TTD from the (sic) January 10, 2022 to a date yet to be \ndetermined; reasonable and necessary medical treatment as recommended \nby Dr. McDonald; and attorney’s fees.  All other issues are reserved.”   \n The respondents contended, “The claim was accepted as a \ntemporary aggravation of a pre-existing condition and the claimant was \ndiagnosed with a back strain.  The major cause of the condition is a prior, \nnon-work-related surgery in 2018.  The MRI after the 6-26-20 incident \nshows no new objective medical findings.  Dr. Robert Jones released the \nclaimant to full duty without restrictions on 11-10-20.  The claimant is not \n\nSHELTON - H004171  3\n  \n \n \nentitled to additional TTD and additional medical treatment is not \nreasonable or necessary or related.”   \n The parties agreed to litigate the following issues: \n1.  Whether Claimant is entitled to additional reasonably \nnecessary medical treatment previously denied by \nRespondents.   \n2.  Whether Claimant is entitled to temporary total disability \nbenefits from January 9, 2022, to a date yet to be determined. \n3.  Attorney’s fee.  All other issues are reserved.   \n \n A hearing was held on July 28, 2023.  At that time, the claimant \ncontended, among other things, that he was entitled to temporary total \ndisability benefits from January 11, 2022 to a date yet to be determined.   \n An administrative law judge filed an opinion on August 22, 2023.  \nThe administrative law judge found that the claimant “did sustain a \ncompensable back injury on June 25, 2020.”  The administrative law judge \nfound that the claimant was entitled to “additional medical treatment,” and \nthat the claimant was “entitled to additional temporary total disability \nbenefits from June 25, 2020, through a date to be determined.”  The \nrespondents appealed to the Full Commission and stated in part, “2.  The \nclaimant did not prove that he is entitled to additional TTD.”   \n The Full Commission filed an opinion on March 7, 2024.  A majority \nof the Full Commission found that the claimant proved he sustained a \ncompensable injury and that the medical treatment of record, including \nrecommendation of a spinal cord stimulator, was reasonably necessary in \n\nSHELTON - H004171  4\n  \n \n \naccordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  The Full \nCommission found that the claimant “did not prove he was entitled to \nadditional temporary total disability benefits.”   \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-715(Repl. 2012) provides, in pertinent part: \n(a)(1)(A)  Fees for legal services rendered in respect of a \nclaim shall not be valid unless approved by the Workers’ \nCompensation Commission.   \n(B)  Attorney’s fees shall be twenty-five percent (25%) of \ncompensation for indemnity benefits payable to the injured \nemployee or dependents of a deceased employee.... \n(ii)  The fees shall be allowed only on the amount of \ncompensation for indemnity benefits controverted and \nawarded.   \n(b)(1)  If the claimant prevails on appeal, the attorney for the \nclaimant shall be entitled to an additional fee at the full \ncommission and appellate court levels in addition the fees \nprovided in subdivision (a)(1) of this section, the additional fee \nto be paid equally by the employer or carrier and by the \ninjured employee or dependents of a deceased employee, as \nprovided above and set by the commission or appellate court. \n(2)  The maximum fees allowable pursuant to this subsection \nshall be the sum of five hundred dollars ($500) on appeals to \nthe full commission from a decision of the administrative law \njudge and the sum of one thousand dollars ($1,000) on \nappeals to the Court of Appeals or Supreme Court from a \ndecision of the commission.   \n \n In the present matter, the parties initially stipulated that the claimant \nsustained a compensable injury on June 25, 2020.  The parties stipulated \nthat the respondents “accepted this claim as compensable and paid some \nbenefits.”  A pre-hearing order was filed on May 10, 2023.  The claimant \ncontended that the respondents “paid certain medical and indemnity \n\nSHELTON - H004171  5\n  \n \n \nbenefits until approximately January 9, 2022.”  The claimant contended, \namong other things, that he was “entitled to TTD from the (sic) January 10, \n2022 to a date yet to be determined[.]”  The respondents contended, among \nother things, that the claimant was “not entitled to additional TTD[.].”  The \nparties agreed to litigate the issue, “2.  Whether Claimant is entitled to \ntemporary total disability benefits from January 9, 2022, to a date yet to be \ndetermined.”   \n An administrative law judge filed an opinion on August 22, 2023.  \nThe administrative law judge found, among other things, that the claimant \nwas “entitled to additional temporary total disability benefits from June 25, \n2020, through a date yet to be determined.”  Ark. Code Ann. §11-9-\n715(a)(2)(B)(ii)(Repl. 2012) expressly provides that attorney’s fees shall be \nallowed “only on the amount of compensation for indemnity benefits \ncontroverted and awarded [emphasis supplied].”  See Gant v. First Step, \nInc., 2023 Ark. App. 393; Harvest Foods v. Washam, 52 Ark. App. 72, 914 \nS.W.2d 776 (1996).  In the present matter, the respondents did not \ncontrovert the claimant’s entitlement to temporary total disability benefits \nbeginning June 25, 2020 et seq.  The claimant contended that the \nrespondents paid indemnity benefits “until approximately January 9, 2022.”  \nThe claimant contended that he was entitled to temporary total disability \nbenefits beginning January 10, 2022 until a date yet to be determined.  The \n\nSHELTON - H004171  6\n  \n \n \nrespondents contended that the claimant did not prove he was entitled to \nadditional temporary total disability benefits.  The Full Commission did not \naffirm the administrative law judge’s award of temporary total disability \nbenefits beginning June 25, 2020.  The Full Commission expressly found \nthat the claimant “did not prove he was entitled to additional temporary total \ndisability benefits.”   \n The Full Commission filed an opinion on March 7, 2024 and found, \namong other things, that the recommendation of a spinal cord stimulator \nwas reasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  The Full Commission awarded the claimant’s attorney \na fee of five hundred dollars in accordance with Ark. Code Ann. §11-9-\n715(b)(Repl. 2012).  However, because the claimant did not prove he was \nentitled to an award of temporary total disability benefits, the claimant’s \nattorney did not prove he was entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(2)(B)(ii)(Repl. 2012.  The \nclaimant’s motion is therefore denied. \n IT IS SO ORDERED.  \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":8971,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H004171 JOSHUA SHELTON, EMPLOYEE CLAIMANT NUCOR YAMATO STEEL COMPANY, EMPLOYER RESPONDENT ARCH INSURANCE COMPANY, CARRIER/ SEDGWICK CLAIMS MANAGEMENT, INSURANCE CARRIER/TPA RESPONDENT","outcome":"granted","outcomeKeywords":["affirmed:1","granted:11","denied:6"],"injuryKeywords":["back","strain"],"fetchedAt":"2026-05-19T22:29:45.752Z"},{"id":"alj-H107220-2024-04-11","awccNumber":"H107220","decisionDate":"2024-04-11","decisionYear":2024,"opinionType":"alj","claimantName":"Maggie Huey","employerName":null,"title":"HUEY VS. HOUNDS LOUNGE, LLCAWCC# H107220April 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HUEY_MAGGIE_H107220_20240411.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HUEY_MAGGIE_H107220_20240411.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        AWCC CLAIM NO.: H107220 \n \nMAGGIE HUEY,  \nEMPLOYEE                                                                                                                CLAIMANT                                                    \n \nHOUNDS LOUNGE, LLC,  \nEMPLOYER                                                                                                           RESPONDENT  \n \nFIRSTCOMP INSURANCE COMPANY,              \nINSURANCE CARRIER                                                                                       RESPONDENT \n \nMARKEL SERVICE, INCORPORATED,                                                                                       \nTHIRD PARTY ADMINISTRATOR(TPA)                                                         RESPONDENT \n \n \n OPINION FILED APRIL 11, 2024    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant, pro se, appeared at the hearing. \n \nThe Respondents represented by the Honorable Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis  matter  comes  before  the Arkansas Workers’ Compensation Commission per the \nRenewed Motion to Dismiss filed by the Respondents.  A hearing on the motion was conducted \nbefore this Commission on January 31, 2024, in Little Rock, Arkansas.  Thus, the sole issue for \ndetermination was whether  this initial claim for  workers’  compensation  benefits should  be \ndismissed due to the Claimant’s failure to prosecute it per the provisions provided under Ark. Code \nAnn. §11-9-702 (Repl. 2012), and/or Commission Rule 099.13. \n  The  record  consists  of  the January  31,  2024,  hearing transcript.  Also, admitted  into \nevidence was Respondents’ Exhibit 1, pleadings, correspondence and forms related to this claim, \n\nHUEY-H107220 \n \n2 \n \nconsisting of five numbered pages.  Furthermore, in order to adequately address this matter under \nArk. Code  Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must conduct the hearing  . . . in a \nmanner which best ascertains the rights of the parties”), and without objection, I have blue-backed \nto the record, a choice of forms, pleadings, and correspondence from the Commission’s file on the \nclaim, consisting of twenty-one pages.  Per Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, ___ \nS.W.3d ___, these documents have been served on the parties in conjunction with this opinion. \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by \nlaw.   Therefore,  the  hearing  proceeded  as  scheduled  on  January  31,  2024.   The  Claimant,  Ms. \nMaggie Huey, appeared at the hearing and was unrepresented.  Also, the Respondents appeared \nthrough counsel and argued for dismissal of the claim because the Claimant failed to move this \ncase to a hearing, and due her failure to comply with discovery, for example, her deposition, which \nwas set for November 13, 2023, but she failed to appear. \n FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other  matters  properly \nbefore the Commission, the following findings of fact and conclusions of law are hereby made in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this matter. \n2. The parties were provided reasonable notice of the Renewed Motion to Dismiss and of the \nhearing thereon. \n3. The  evidence  preponderates  that  Claimant has  failed  to  timely  pursue  her  claim  due  to \nunfortunate personal losses.  However, the Claimant is now ready to pursue her claim.  \n\nHUEY-H107220 \n \n3 \n \n4. The Respondents’ Renewed Motion to Dismiss is hereby respectfully denied on this claim \nfor initial workers’ compensation benefits. \n                            Background \nThe record reflects the following procedural history: \n The Claimant asserted her entitlement to Arkansas workers’ compensation benefits due to \nan alleged workplace injury on February 27, 2021.  But the Commission’s file does not reflect the \nClaimant filed a formal claim via a Form AR-C in this case.  That is the means for filing a “formal \nclaim,” a Form AR-C.  While a Form AR-1 was filed in this case, that does not suffice to instigate \na claim.  I recognize, however, that other means exist to file a claim for initial benefits other than \na Form AR-C.   \n In that regard, my review of the Commission’s file shows a document sufficient to be able  \nto constitute a filing of a claim for initial benefits under the factors cited above.  That document is  \nClaimant’s September 16, 2022, hearing request.  At that time, the Claimant wrote a lengthy letter  \nto the Commission making a claim in this matter for her alleged entitlement to Arkansas workers’  \ncompensation benefits.  Hence, this letter serves as a claim for initial benefits. \nTherefore,  on  or  about May 19, 2022, the Respondents filed  a  Form  AR-2  with  the \nCommission controverting liability for this claim.  Specifically,  the  Respondents  stated  the \ngrounds as thus: “Denying, as the accepted body part this claim is the sacrum/coccyx.  There is no \nmedical evidence that she sustained an injury to her sacrum/coccyx on February 27, 2021.” \nAlthough  the  Claimant  notified  her  employer  of  her  alleged  accidental  injury, as  noted \nabove, she did not file a formal claim with the Commission requesting benefits.  Consequently, \nthere was no  request  for  a  hearing  made  by  the  Claimant  with  respect  to  her alleged  accidental \ninjury.  \n\nHUEY-H107220 \n \n4 \n \nTherefore, on August 29, 2022, the Respondents filed a Motion to Dismiss for Failure to \nProsecute  with  the  Commission. On  September  16,  2022,  the  Claimant  wrote a  letter to  the \nCommission objecting to the motion to dismiss her claim, and to request benefits.   \nIt appears that a prehearing telephone conference was held with the parties on January 30, \n2023.  At that time, the Claimant requested additional time to retain legal counsel before moving \nforward on her claim.  This request was granted, and the file was returned to the Commission’s \ngeneral files. \nSubsequently,  the  Claimant  requested  a  hearing  on  the  claim.   A  prehearing  telephone \nconference  was  scheduled  for  July  19,  2023.    The  Respondents’  attorney  appeared for  the \ntelephonic  conference.   However,  I  tried  calling  the  Claimant  several  times,  but  she  was \nunreachable.  Therefore, I returned this claim to the Commission’s general files.  The Claimant \nsent an email to the Commission saying she had the time noted incorrectly on her calendar.  As \nsuch, the Claimant requested that the prehearing telephone conference be rescheduled.  This was \ndone.  The telephone conference was rescheduled for August 9, 2023.  At the time of the telephone \nconference, the Respondents’ attorney indicated that he wished to take the Claimant’s deposition \nand  possibly  explore  settlement  of  the  claim.  Therefore,  the  claim  was  returned  to  the \nCommission’s general files.     \nOn December  1, 2023,  the Respondents  filed  a Renewed  Motion  to Dismiss, with  the \nCommission accompanied by a certificate of service to the Claimant saying that they served a copy \nof the pleading on the Claimant by depositing a copy thereof with the United States Postal Service.  \nThe primary basis for the Respondents’ renewed motion for dismissal of this claim is due to the \nClaimant’s failure to appear for her deposition in November of 2023, and move forward with her \nclaim.   \n\nHUEY-H107220 \n \n5 \n \nNevertheless,  the  Commission  sent  a  letter to the  Claimant informing her of  the \nRespondents’ renewed motion on December 4, 2023.  The letter notice was sent via certified mail \nand first-class mail.  Per this letter, the Claimant was given twenty (20) days from the date of that \nletter to file a response to the motion.  \nThe letter-notice was mailed to the Claimant by first-class mail has not been returned to \nthe  Commission.  On  December  6,  2023,  an  agent  for  the  post  office  left  this  notice  with  an \nindividual at the Claimant’s home.  My review of the record proves that the Claimant signed for \ndelivery of this document.     \nOn January 4, 2024, the Commission mailed a Notice of Hearing to the Claimant stating \nthat a dismissal hearing was scheduled for January 31, 2024, in Little Rock, Arkansas.  The hearing \nnotice mailed to the Claimant by certified mail was delivered by the mail carrier to the Claimant’s \nhome on January 8, 2024, and left with an individual.  My review of the tracking document shows \nthat the Claimant signed for the hearing notice.  Of note, the notice of hearing sent to the Claimant \nvia first-class has not been returned to the Commission.  \nYet, there was no response from the Claimant.   \nConversely,  a hearing  was in  fact conducted on the Respondents’ renewed motion  to \ndismiss as scheduled.  The Respondents’ attorney asked that the claim be dismissed under Ark. \nCode Ann. §11-9-702 and Commission Rule 099.13 due to the Claimant’s failure to prosecute her \nclaim for workers’ compensation benefits.  Specifically, counsel noted that the Claimant did not \nappear at his office to have her deposition taken as arranged.   However, the Claimant objected to \nher  claim  being  dismissed.    She  attributed  her  failure  to  move  forward  with  a resolution  to her \nclaim to fact that she has been dealing with a lot of loss.  The Claimant indicated that she is willing \n\nHUEY-H107220 \n \n6 \n \nto have her deposition taken and work with counsel to possibly come to some type of resolution \nof her claim.         \nGiven these circumstances, I find that the Respondents’ most recent motion to dismiss this \nclaim should be respectfully denied at this time. \n                     Conclusion      \nPer the  foregoing findings  of fact  and conclusions  of law, the Respondents’ Renewed \nMotion to Dismiss this claim is respectfully denied. \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":10509,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H107220 MAGGIE HUEY, EMPLOYEE CLAIMANT HOUNDS LOUNGE, LLC, EMPLOYER RESPONDENT FIRSTCOMP INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT MARKEL SERVICE, INCORPORATED, THIRD PARTY ADMINISTRATOR(TPA) RESPONDENT OPINION FILED APRIL 11, 2024 Hearing held ...","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:17.187Z"},{"id":"alj-H303433-2024-04-10","awccNumber":"H303433","decisionDate":"2024-04-10","decisionYear":2024,"opinionType":"alj","claimantName":"Darrell Jones","employerName":"Arkansas Childrens’ Hospital","title":"JONES VS. ARKANSAS CHILDRENS’ HOSPITAL AWCC# H303433 April 10, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/JONES_DARRELL_H303433_20240410.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JONES_DARRELL_H303433_20240410.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NOS. H303433 \n \nDARRELL JONES (DECEASED), \nEMPLOYEE                                                                                                              CLAIMANT \n \nARKANSAS CHILDRENS’ HOSPITAL (ACH), \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nACH-SELF-INSURED/ \nCENTRAL ADJUSTMENT CO., INC., \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE  \nFILED APRIL 10, 2024 \n \nHearing conducted on Tuesday, April 9, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe deceased claimant’s statutory beneficiary, Ms. Roberta Jones, pro se, of Little Rock, Pulaski \nCounty, Arkansas, failed and/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \n \n \nSTATEMENT OF THE CASE \n \n  A  hearing was  conducted  on Tuesday, April  9,  2024, to  determine  whether this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Replacement). \n The respondents  filed  a letter motion to  dismiss without  prejudice (MTD) with  the \nCommission on February 9, 2024, requesting this claim be dismissed without prejudice for lack of \nprosecution. (Respondents’ Exhibit 1 at 11). Consistent  with  the  applicable  Arkansas  law the \nCommission mailed a copy of both the respondents’ MTD, and the subject hearing notice via the \n\nDarrell Jones (Deceased), AWCC NO. H303433 \n2 \n \nUnited States Postal Service (USPS), Certified Mail, Return Receipt Requested, to the deceased \nclaimant’s representative’s/statutory beneficiary’s, Ms. Roberta Jones’s (Ms. Jones), last known \naddress of record with the Commission, which she received on February 15, 2024. (Commission \nExhibit 1; RX1 at 13; 12). Thereafter, Ms. Jones failed and/or refused to respond in any way to \neither the Commission or to the respondents; and she failed and/or refused to appear at the subject \nhearing. Ms. Jones never responded or objected in any way to the respondents’ letter MTD. \n          The claimant died of a heart attack, and the respondents’ denied and controverted the claim \nin its entirety. (RX1 at 1-2; 6). It should be noted Ms. Jones initially was represented by counsel, \nMs. Laura Beth York of  the Rainwater, Holt & Sexton law firm in Little Rock  at the time this \nclaim  was  filed; however, Ms.  York  requested  to  withdraw  as  counsel,  and  the  Commission \ngranted her request. (RX1 at 1-10; Hearing Transcript). \n The  record  herein  consists  of the  hearing  transcript  and  any  and  all exhibits  contained \ntherein and attached thereto. \n \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the respondents’ \nletter MTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance \nof the evidence introduced at the hearing and contained in the record conclusively demonstrates \nMs. Jones has failed and/or refused to request a hearing within the last six (6) months, or taken \nany other steps to prosecute this claim. By transmittal letter dated June 14, 2023, the respondents \n\nDarrell Jones (Deceased), AWCC NO. H303433 \n3 \n \npropounded discovery to Ms. Jones’s attorney of record at the time, Ms. York, but neither Ms. \nYork or Ms. Jones ever responded to the discovery requests. (RX1 at 5; Tr.)  \n Therefore, after a thorough consideration of the facts, issues, the applicable law, as well as \nthe representations of highly competent and credible counsel, and other relevant matters of record, \nI hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After the Commission mailed due and legal notice of the respondents’ letter MTD \n                  filed February 9, 2024, to Ms. Jones’s last known address of record with the \n                  Commission, Ms. Jones failed and/or refused to respond to the motion in any \n                  way; failed and/or refused to object to the subject MTD; and failed and/or refused \n                  to request a hearing on the subject claim. \n \n            3.         Ms. Jones failed and/or refused to appear at the subject MTD hearing and, therefore, \n                       is deemed to have waived her right to a hearing on the MTD. \n \n      4.         Neither Ms. Jones or any attorney or other person acting legally and on her behalf \n                  has requested a hearing either on the merits, or on any issue related to the subject \n                  claim, within the last six (6) months. \n \n 5. Therefore, I find the respondents’ letter MTD without prejudice filed with the \n                  Commission on February 9, 2024, should be and hereby is GRANTED. \n      \n      6.          The above-styled claim hereby is dismissed without prejudice to its refiling pursuant \n                 to the deadlines prescribed by Ark. Code Ann.  § 11-9-702(a) and (b), and \n                 Commission Rule 099.13. \n \n \n This opinion shall not be construed to prohibit Ms. Jones, her attorney, any attorney she \nmay retain in the future, or anyone acting legally and on her behalf from refiling this claim if the \nclaim is refiled within the applicable time periods/deadlines prescribed by Ark. Code Ann. § 11-\n9-702(a) and (b). \n\nDarrell Jones (Deceased), AWCC NO. H303433 \n4 \n \n The  respondents shall pay the court reporter’s invoice within twenty  (20) days  of their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":6625,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NOS. H303433 DARRELL JONES (DECEASED), EMPLOYEE CLAIMANT ARKANSAS CHILDRENS’ HOSPITAL (ACH), EMPLOYER RESPONDENT ACH-SELF-INSURED/ CENTRAL ADJUSTMENT CO., INC., INSURANCE CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED APRIL 10, 2024 Hearing c...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:15.006Z"},{"id":"full_commission-H205069-2024-04-09","awccNumber":"H205069","decisionDate":"2024-04-09","decisionYear":2024,"opinionType":"full_commission","claimantName":"Erica Bearfield","employerName":"Rock Region Metro","title":"BEARFIELD VS. ROCK REGION METRO AWCC# H205069 & H304225 APRIL 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Bearfield_Erica_H205069-H304225_20240409.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Bearfield_Erica_H205069-H304225_20240409.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NOS.  H205069 & H304225  \n \nERICA BEARFIELD, \nEMPLOYEE \n \nCLAIMANT \nROCK REGION METRO,  \nEMPLOYER \n \nRESPONDENT \nATA WC TRUST, INSURANCE CARRIER/ \nRISK MANAGEMENT RESOURCES/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 9, 2024  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE STEVEN R. McNEELY, \nAttorney at Law, Jacksonville, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe respondents appeal and the claimant cross-appeals an \nadministrative law judge’s opinion filed October 11, 2023.  The \nadministrative law judge found that the claimant proved she sustained a \ncompensable injury on March 15, 2022, but that the claimant did not prove \nshe sustained a compensable injury on September 3, 2021.  The \nadministrative law judge awarded medical treatment and temporary total \ndisability benefits.  After reviewing the entire record de novo, the Full \nCommission finds that the claimant proved she sustained a compensable \ninjury on March 15, 2022.  The claimant proved that the medical treatment \n\nBEARFIELD - H205069 & H304225  2\n  \n \n \nof record provided after March 15, 2022 was reasonably necessary, and \nthat she was entitled to temporary total disability benefits from July 26, 2022 \nthrough January 26, 2023.     \nI.  HISTORY \n Erica Rochelle Bearfield, now age 49, testified that she became \nemployed with the respondents, Rock Region Metro, in 2004.  Ms. Bearfield \ntestified that she drove a bus for the respondents.  The claimant testified \nthat beginning in 2020 she was required to open and close a “COVID \nshield” installed on Rock Region buses.  The claimant’s testimony indicated \nthat she was required to open and close the COVID shield 30-35 times per \nhour over the course of at least an eight-hour work shift driving the bus.  \nThe parties stipulated that the employee-employer relationship existed on \nSeptember 3, 2021.  The claimant testified that her right arm began hurting \napproximately a month before September 2021, and that she suffered from \nswelling in her neck and shoulder.  The claimant contended that she \n“sustained a compensable injury to her right shoulder” on September 3, \n2021.   \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on September 17, 2021.  The ACCIDENT INFORMATION section \nof the Form AR-N indicated that the Place of Accident was “on duty on bus” \nand that the Date of Accident was September 15, 2021.  It was written on \n\nBEARFIELD - H205069 & H304225  3\n  \n \n \nthe Form AR-N that the claimant injured “Right side of neck,” and that the \ncause of injury was “Moving passenger bags on wheelchair to secure the \nchair the bags were heavy.” \n The record includes a Workplace Injury Triage & Reporting “Incident \nReport” describing a right shoulder injury.  The Incident Report indicated \nthat the Mechanism of Injury was “Repetitive Motion.”  Miriam Lawrence, \nN.P. reported on September 17, 2021, “The patient presents today with \nright shoulder, neck and arm pain from repetitive movement pulling on \nshield to board passengers and moving heavy bags.”  Miriam Lawrence \nassessed “1.  Right shoulder pain” and “2.  Sprain of right shoulder.”  An x-\nray of the claimant’s right shoulder was taken on September 17, 2021 with \nthe impression, “No radiographically evident acute abnormalities of the right \nshoulder.”      \n The claimant treated at Concentra Health Centers on September 21, \n2021, at which time the claimant was diagnosed with “Pain in right \nshoulder.”  The claimant was returned to work with no restrictions on \nSeptember 21, 2021.  The record indicates that the claimant returned to \nwork for the respondents.       \n The parties stipulated that the employee-employer relationship \nexisted on March 15, 2022.  The claimant contended that she sustained an \n\nBEARFIELD - H205069 & H304225  4\n  \n \n \n“additional injury or aggravation to her right shoulder” on March 15, 2022.  \nThe claimant testified on direct examination: \n  Q.  What happened in March of 2022? \nA.  I started back doing like a lot of working overtime.  I was \ndoing a lot of work, you know, doing overtime, and – like the \n16-hour days, several days in a row, 16 hours.  And that day, I \nhad a wheelchair, yes.  And when I went back there to do my \nwheelchair, I felt it.  It was hurting real bad that day.  So when \nI went home, I called in the next day, and I told them – I called \nin to dispatch, and I told them that I wanted to call in sick \nbecause my shoulder was hurting.... \nQ.  Can you tell the judge if there was a difference between \nyour problems with your right shoulder in March of ’22 and \nback in September of the year before? \nA.  I wasn’t able to lift my arm to put my shirt on this time.  It \nwas more pain.  It was worse than the first time.   \n \n The respondents’ attorney cross-examined the claimant: \nQ.  You also told me in the deposition that on March 15\nth\n you \nfelt a pop when you were opening a shield to let people in.  Is \nthat right? \nA.  Yes.   \nQ.  You didn’t report it right then because you thought it was \njust a pain, and it would go away.  Is that right? \nA.  Yes.  That’s correct.   \n \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on March 29, 2022.  The ACCIDENT INFORMATION section of \nthe Form AR-N indicated that the Date of Accident was March 15, 2022 and \nthat the employer was notified of same on March 29, 2022.  The claimant \nappeared to write on the Form AR-N that she injured her “Right left \nshoulder” and that the cause of injury was “Swelling and hard to raise up.” \n\nBEARFIELD - H205069 & H304225  5\n  \n \n \n An MRI of the claimant’s right shoulder was taken on March 31, 2022 \nwith the following impression: \n1.  Mild distal supraspinatus tendinosis with questionable tiny \nfocal full-thickness tear of the distal anterior leading edge of \nthe supraspinatus tendon insertion. \n2.  Sublabral foramen versus SLAP tear. \n3.  Small glenohumeral joint effusion.   \n4.  Mild degenerative arthrosis of the acromioclavicular joint. \n5.  Small amount of fluid in the subacromial subdeltoid bursa \nwhich may indicate mild bursitis.   \n \n The impression of Clint Bearden, PA-C on April 5, 2022 was “1.  \nGlenoid labral tear, right initial encounter,” “2.  Right shoulder pain,” and “3.  \nSprain of right shoulder.”   \n An x-ray of the claimant’s right shoulder was taken on April 7, 2022 \nwith the findings and impression, “Irregularity of the greater and lesser \ntuberosities is seen, most likely sequelae of underlying rotator cuff \ndegeneration/tear.  Subacromial spurring is noted.”   \nDr. Lawrence O’Malley reported on June 30, 2022: \nErica Bearfield is a 47 y.o. female patient seen today as a \nfollow up patient for workman’s Comp evaluation of right \nshoulder pain.  She works at Rock region Metro and has been \nthere for the last 17 half years.  She normally drives the city \nbus.  This involves her steering the bus, opening closing \ndoors and packaging wheelchairs for passengers.  She \ninitially began experiencing shoulder pain in September of \n2021.  There is no known injury at that time.  She was having \nlaterally based shoulder pain and some neck pain.  She went \nto Concentra where physical therapy was prescribed and she \nhad an intramuscular steroid injection.  Her pain did improve \nbut never completely went away from that episode.  Then \nstarting Around March 15\nth\n she had [an] increase in her \n\nBEARFIELD - H205069 & H304225  6\n  \n \n \nshoulder pain which was worse than it was back in \nSeptember.  She did well 1 round of physical therapy and saw \na provider at Concentra where an MRI was ordered.  After \nMRI was completed she was placed on light duty with no use \nof the right shoulder [and no bus driving].  Since March her \npain [has] been anterior and laterally based.  [Has] been \nworse with any lifting or overhead activity.... \nPatient states that when she [returned] to work at full duty she \nhad an increase in pain.  It has been difficult to complete her \njob as a driver.... \nIMAGING:  Radiographs right shoulder ordered and \ninterpreted in clinic today:  Overall normal bony alignment.  No \nsignificant abnormalities noted.   \nOutside MRI reviewed and interpreted today:  Shows some \nmild cuff tendinosis but no frank rotator cuff tear.   \n \n Dr. O’Malley gave the following impression:  “Erica Bearfield is a 47 \ny.o. female with right shoulder pain secondary to overuse with biceps and \nrotator cuff tendinitis.  PLAN:  Patient has not had any lasting improvement \nfrom conservative therapy.  We discussed surgical intervention as a \ntreatment option and she wishes to proceed with surgery.”   \n On July 6, 2022, a Claims Specialist corresponded with Rita Vaughn, \nRN, Orthopaedic Workers’ Compensation Liaison, UAMS:  “Can you please \nask Dr. O’Malley to address if the major cause of Erica’s need for treatment \nis work related?”  Dr. O’Malley replied on July 6, 2022, “No I can’t say that \ngreater than 51% of the current issues are due to her work.  Thanks.”   \n Dr. O’Malley performed surgery on July 26, 2022:  “1.  Right shoulder \narthroscopy with arthroscopic biceps tenodesis.  2.  Posterior labral repair.  \n3.  Extensive debridement intra-articularly and also subacromial space.  4.  \n\nBEARFIELD - H205069 & H304225  7\n  \n \n \nSubacromial decompression.”  The post-operative diagnosis was “1.  Right \nshoulder biceps tearing.  2.  Subacromial impingement.  3.  Posterior labral \ntear, superior labral tearing.”   \n The claimant was provided physical therapy following surgery.   \n Dr. O’Malley performed additional surgery on January 11, 2023:  \n“Right shoulder arthroscopy with lysis of adhesions and manipulation.”  The \npost-operative diagnosis was “Right shoulder acromioclavicular joint \narthritis.”   \n The claimant followed up with Dr. O’Malley on January 26, 2023: \nErica Rochelle Bearfield is a 47 y.o. year old female patient \nwho comes in today 2 weeks out from right shoulder \narthroscopy with lysis of adhesions and manipulation under \nanesthesia.  She states she is doing well.  She is doing \nphysical therapy at Harris and Renschaw, she is happy with \nthe progress she has made.  She is not having any pain.  She \nis ready to return to work.  She is a bus driver for the City of \nLittle Rock.... \nWe will give her a return to work note today with no \nrestrictions.... \n \n The claimant testified that she returned to work on or about February \n11, 2023.   \n Dr. O’Malley noted in part on March 13, 2023, “She has made great \nprogress.  She is back at work without any issues....We will see her back \non an as-needed basis.”   \n A pre-hearing order was filed on August 2, 2023.  The parties \nstipulated that the respondents “initially accepted this claim as medical-only \n\nBEARFIELD - H205069 & H304225  8\n  \n \n \nand paid some benefits.  Respondents now deny claims in their entirety.”  \nAccording to the pre-hearing order, the parties agreed to litigate the \nfollowing issues: \n1.  Whether Claimant sustained a compensable injury to her \nright shoulder on 9/3/2021. \n2.  Are there objective findings of an acute injury on 9/3/2021. \n3.  Whether Claimant is entitled to reasonable medical and \nindemnity benefits from the date of onset to a yet \nundetermined date. \n4.  Whether Claimant sustained a compensable injury to her \nright shoulder on 3/15/2022.   \n5.  Are there objective findings of an acute injury on \n3/15/2022. \n6.  Whether Claimant is entitled to reasonable and necessary \nmedical treatment, including two surgeries performed by Dr. \nLawrence O’Malley, including out of pocket expense, mileage \nand reimbursement for private health insurance. \n7.  Whether Claimant is entitled to Temporary Total Disability \n(TTD) following her 3/15/2022 injury for approximately 8 \nmonths, specific dates to be provided. \n8.  Attorney’s fees.  All other issues are reserved.   \n \n   A hearing was held on September 28, 2023.  At that time, the \nclaimant contended that she was entitled to temporary total disability \nbenefits from July 26, 2022 through January 26, 2023.  An administrative \nlaw judge filed an opinion on October 11, 2023.  The administrative law \njudge found that the claimant proved she sustained a compensable injury \non March 15, 2022, but that the claimant did not prove she sustained a \ncompensable injury on September 3, 2021.  The administrative law judge \nawarded medical treatment and temporary total disability benefits.  The \n\nBEARFIELD - H205069 & H304225  9\n  \n \n \nrespondents appeal to the Full Commission and the claimant cross-\nappeals. \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is \"accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.]   \n \n A compensable injury must be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(E)(i)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012). \n The employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).  \n The Commission must strictly construe the provisions of Act 796 of \n1993.  Ark. Code Ann. §11-9-704(c)(3)(Repl. 2012).  Strict construction \n\nBEARFIELD - H205069 & H304225  10\n  \n \n \nrequires that nothing be taken as intended that is not clearly expressed.  \nEdens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001).  \nThe doctrine of strict construction is to use the plain meaning of the \nlanguage employed.  Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, \n41 S.W.3d 822 (2001).  In this regard, there is no expressed intent or \nlanguage in Act 796 which requires an employee to prove that her alleged \ninjury was “acute.”     \n An administrative law judge found in the present matter, “The \nClaimant did not prove a compensable rapid and repetitive injury to her right \nshoulder on September 3, 2021.”  Although she has filed a notice of cross-\nappeal, the claimant asserts in her brief that the Full Commission should \naffirm the administrative law judge’s opinion.  The claimant states in her \nbrief, “If this Commission reverses the ALJ regarding a compensable \nspecific incident injury then claimant argues she alternative (sic) suffered a \ngradual onset injury with worsening of symptoms.”   \n The Full Commission affirms the administrative law judge’s finding \nthat the claimant “did not prove a compensable rapid and repetitive injury to \nher right shoulder on September 3, 2021.”  However, the Full Commission \nalso affirms the administrative law judge’s finding that the claimant \nsustained a compensable injury to her right shoulder on March 15, 2022. \n\nBEARFIELD - H205069 & H304225  11\n  \n \n \n The claimant, who the Commission finds was a credible witness, \ntestified that she became employed as a bus driver for the respondents in \n2004.  The claimant began suffering from pain in her right shoulder in \napproximately September 2021.  The claimant received conservative \nmedical treatment and was released to return to work on September 21, \n2021.  The parties stipulated that the employment relationship existed on \nMarch 15, 2022.  The claimant testified that she right shoulder began \nhurting while she was performing employment services for the respondents.  \nThe claimant agreed on cross-examination that she “felt a pop” in her right \nshoulder while opening the “COVID shield” which the claimant had \ndescribed during direct examination.   \n The record indicates that the claimant reported the injury to the \nrespondents no later than March 29, 2022.  An MRI of the claimant’s right \nshoulder showed abnormalities including a SLAP tear and glenohumeral \njoint effusion.  A physician assistant’s impression on April 5, 2022 was \n“Glenoid labral tear” and “Sprain of right shoulder.”  An x-ray on April 7, \n2022 confirmed a tear in the claimant’s right shoulder.  The claimant began \ntreating with Dr. O’Malley, who corroborated the claimant’s account of a \nwork-related injury.  Dr. O’Malley performed a right shoulder arthroscopy, \nlabral repair, and debridement on July 26, 2022.  Dr. O’Malley’s surgical \n\nBEARFIELD - H205069 & H304225  12\n  \n \n \nreport included “biceps tearing” and “superior labral tearing.”  Dr. O’Malley \nperformed additional surgery on January 11, 2023.   \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that she sustained a compensable injury.  \nThe claimant proved that she sustained an accidental injury causing \nphysical harm to the body.  The claimant proved that the injury arose out of \nand in the course of employment, required medical services, and resulted in \ndisability.  The claimant proved that the injury was caused by a specific \nincident and was identifiable by time and place of occurrence on or about \nMarch 15, 2022.  In addition, the claimant established a compensable injury \nby medical evidence supported by objective findings.  These objective \nfindings include Dr. O’Malley’s surgical report of “right shoulder biceps \ntearing,” “labral tear,” and “superior labral tearing.”  The claimant proved \nthat these objective medical findings were causally related to the March 15, \n2022 accidental injury and were not the result of a pre-existing condition or \nprior injury.   \n The Full Commission finds that the medical treatment of record \nfollowing the March 15, 2022 compensable accidental injury, including \nsurgical treatment provided by Dr. O’Malley, was reasonably necessary in \naccordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  We recognize \nDr. O'Malley’s statement on July 6, 2022, “I can’t say that greater than 51% \n\nBEARFIELD - H205069 & H304225  13\n  \n \n \nof the current issues are due to her work.”  Nevertheless, the claimant was \nnot required to prove “major cause” in this case.  The claimant was only \nrequired to prove that her compensable injury was “a factor” in the need for \nsurgery.  See Williams v. L&W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d \n383 (2004).  The claimant in the present matter indeed proved that the \nMarch 15, 2022 compensable injury was at least “a factor” in her need for \nsurgery and was in fact reasonably necessary in connection with the \ncompensable injury. \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she sustained a compensable injury to her right \nshoulder on March 15, 2022.  The claimant proved that the medical \ntreatment of record following the compensable injury, including surgery \nperformed by Dr. O’Malley, was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  The claimant proved that she \nremained within a healing period and was totally incapacitated from earning \nwages beginning July 26, 2022 and continuing through January 26, 2023.  \nThe claimant therefore proved that she was entitled to temporary total \ndisability benefits beginning July 26, 2022 and continuing through January \n26, 2023.  See Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981).  The respondents are entitled to an appropriate offset in \naccordance with Ark. Code Ann. §11-9-411(Repl. 2012). \n\nBEARFIELD - H205069 & H304225  14\n  \n \n \n The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \non appeal, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(1)(Repl. \n2012). \n IT IS SO ORDERED.    \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION      \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved by a preponderance of the evidence that she sustained a \ncompensable injury on March 15, 2022. \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  This, therefore, requires that a claimant establish by a \npreponderance of the evidence: (1) an injury arising out of and in the course \nof employment; (2) that the injury caused internal or external physical harm \n\nBEARFIELD - H205069 & H304225  15\n  \n \n \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings establishing an \ninjury as defined in Ark. Code Ann. §11-9-102(16) and; (4) that the injury \nwas caused by a specific incident identifiable by time and place of \noccurrence.  Ark. Code Ann. §11-9-102(4)(A)(i). \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\"  Ark. Code Ann. §11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. §11-9-102(16).  There is no requirement that medical \ntestimony be based solely or expressly on objective findings, only that the \nrecord contains supporting objective findings.  Stephens Truck Lines v. \nMillican, 58 Ark. App 275, 950 S.W.2d 472 (1972) and Singleton v. City of \nPine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006).  It is within the \nCommission's province to weigh all the medical evidence, to determine \nwhat is most credible, and to determine its medical soundness and \nprobative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. App. 459, 637 \nS.W.3d 280 (2021).  In weighing the evidence, the Commission may not \narbitrarily disregard medical evidence or the testimony of any witness.  Id. \nThe Commission is not required to believe the testimony of the claimant or \nany other witness but may accept and translate into findings of fact only \n\nBEARFIELD - H205069 & H304225  16\n  \n \n \nthose portions of the testimony that it deems worthy of belief.  White v. \nGregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). \nFrom the outset, the basis of this claim is spurious at best. \nClaimant’s Form N, completed by the claimant and submitted on March 29, \n2022, describes the claimant’s injury as “right left shoulder “[S]welling and \nhard to raise up.”  (Resp. Ex. 2, P. 2).  There is no mention of a popping \nsound or tear to the claimant’s right shoulder at that point.  Id.  In fact, the \nclaimant never mentioned her shoulder popping to her treating physician, \nLawrence O’Malley, during the course of his treatment.  Throughout the \nclaimant’s treatment, Dr. O’Malley was unable to state within a reasonable \ndegree of medical certainty that the claimant’s injury was work related. \n(Resp. Ex. 1, P. 13). \nThe ALJ relies on the claimant’s statement that she heard a popping \nnoise in her shoulder on March 15, 2022 as the entire basis his ruling that \nthe claimant has proven by a preponderance of the evidence that she \nsustained a compensable injury to her shoulder.  This, however, is \ncontradictory to the evidence.  This statement by the claimant that she \nheard a popping noise in her shoulder cannot satisfy the requirement of \nobjective medical findings to support an award to the claimant.  A claimant’s \ntestimony is never uncontroverted.  Nix v. Wilson World Hotel, 46 Ark. App. \n303, 879 S.W.2d 457 (1994).  A claimant’s testimony alone cannot act as \n\nBEARFIELD - H205069 & H304225  17\n  \n \n \nobjective findings when they are clearly refuted by a professional medical \nopinion and the claimant’s own prior statements.  The evidence is clear that \nit cannot be stated within a reasonable degree of medical certainty that the \nclaimant suffered a specific incident injury on March 15, 2022 and the ALJ’s \nfindings should therefore be reversed. \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":24724,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. H205069 & H304225 ERICA BEARFIELD, EMPLOYEE CLAIMANT ROCK REGION METRO, EMPLOYER RESPONDENT ATA WC TRUST, INSURANCE CARRIER/ RISK MANAGEMENT RESOURCES/TPA RESPONDENT OPINION FILED APRIL 9, 2024","outcome":"reversed","outcomeKeywords":["reversed:1"],"injuryKeywords":["neck","shoulder","repetitive","sprain","back","rotator cuff"],"fetchedAt":"2026-05-19T22:29:45.720Z"},{"id":"full_commission-H208370-2024-04-09","awccNumber":"H208370","decisionDate":"2024-04-09","decisionYear":2024,"opinionType":"full_commission","claimantName":"Jason House","employerName":"Penske Logistics, Inc","title":"HOUSE VS. PENSKE LOGISTICS, INC. AWCC# H208370 APRIL 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/House_Jason_H208370_20240409.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"House_Jason_H208370_20240409.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H208370 \n \nJASON HOUSE, \nEMPLOYEE \n \nCLAIMANT \nPENSKE LOGISTICS, INC.,  \nEMPLOYER \n \nRESPONDENT \nOLD REPUBLIC INSURANCE COMANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 9, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MICHAEL L. ELLIG, Attorney at \nLaw, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nOctober 2, 2023.  The administrative law judge found that the claimant \nfailed to prove he was entitled to permanent partial disability benefits.  After \nreviewing the entire record de novo, the Full Commission reverses the \nadministrative law judge’s opinion.  The Full Commission finds that the \nclaimant proved he sustained a permanent anatomical impairment in the \namount of 37% to the right lower extremity.     \nI.  HISTORY \n\nHOUSE - H208370  2\n  \n \n \n Jason Patrick House, now age 51, testified that he was previously \ninvolved in a motor vehicle accident in 1997.  The claimant testified that he \nsustained injuries which included a right kneecap fracture.  Dr. James W. \nLong noted on December 12, 2016: \nThis is the initial office visit in several years for this 44-year-\nold male complaining of pain in his left knee.  This patient has \na significant orthopaedic history.  He was initially injured in \n1997 and treated at University of Arkansas for Medical \nSciences with a fracture of his right acetabulum, treated by \nopen reduction and internal fixation and with plate and \nscrews, plus an intramedullary rod of his right femur and an \narthrotomy of his right knee with repair of the fractures \nextensor mechanism, including the patella.  This occurred as \nthe result of a motor vehicle accident in 1997.  Open reduction \nand internal fixation procedure for the hip, including the \nacetabulum as well as the midthird of the femur with retained \nintramedullary rod and the fracture about the right patella and \nextensor mechanism.  He developed no overt arthritic \nsymptoms in his right hip, fortunately, and his knee is \nsymptomatic, but not severely so....I have not seen him in \nseveral years and he reports that he did well enough with his \nhip replacement on the left and his reconstruction for \nacetabular and femoral fracture as well as the knee \nreconstruction for fracture to the point that he went back to \nwork.  He drives a truck that carries chicken entrails for Bozel.  \nThis requires him to work on a very slick floor as a result of \nspillage of this cargo.   \nOn September 13, 2016, the patient slipped and fell on a \nconcrete floor and injured his left knee as well as his left \nshoulder.... \nIMPRESSION:   \n1.  Subacute fracture of the left patella at the proximal pole \nthat is incomplete with avulsion of a small patellar fragment \nand possible quadriceps tear. \n2.  Posttraumatic arthrosis of the left shoulder with limitation of \nmotion.  No fracture or over structural change. \n3.  Old left total hip replacement with subacute trauma.  No \nfractures or bony lesions, and no loosening. \n\nHOUSE - H208370  3\n  \n \n \n4.  Severe, old, posttraumatic arthrosis of the right hip with \nretained acetabular plate and screws.   \n5.  Healed fracture of the right femur with retained \nintramedullary rod, antegrade. \n6.  Severe posttraumatic arthrosis of the right knee.   \n \nThe patient has significant orthopaedic pathology in his right \nhip and knee secondary to trauma in 1997, with retained \nhardware as recorded above.  He is in today because of the \nleft knee from an apparent tear of the quadriceps tendon that \noccurred during a fall in September of 2016.... \nThe posttraumatic arthrosis that is radiographically quite \nsevere in the left knee and the right hip does not appear to be \ndirectly affected by the fall in September of 2016, in which he \nlanded on his left knee, hip, and shoulder.  The degeneration \nof the right hip and the right knee may eventually require \nreplacement arthroplasty.... \n \n It was noted on May 11, 2022, “Knee bone on bone on the right; Lots \nof pain all the time; Pt is not helpful; walking is hard after 1/2 day; can go \nback out after sitting 2 yrs; Last injection was 7-10 yrs ago; 1 mo benefit.”   \nThe parties stipulated that the claimant “sustained a compensable \ninjury to his right knee” on June 15, 2022.  The claimant testified on direct \nexamination: \nQ.  Would you briefly describe to the judge the accident that \noccurred on June 15, 2022. \nA.  I was pre-tripping my trailer....And I hooked up my truck \nand go to dolly the landing gear up and turned around and \nstepped in a hole that I didn’t see.... \nQ.  When you stepped in that hole, what happened? \nA.  I heard a pop and I twisted it a little bit there....My [right] \nknee swelled up.     \n \n Dr. Trent Johnson noted on July 15, 2022: \n\nHOUSE - H208370  4\n  \n \n \nMr. House is here for evaluation of his right knee.  He reports \na pain in his right knee.  The patient has a history of stepping \nin a trailer rut, sustained twisting injury to his right knee.  \nSince that time, he has had medial-sided knee pain.  The \npatient reports aching and throbbing, worse with \nweightbearing and ambulating.  This pain is mainly about the \nmedial aspect of the knee.  He has history of posttraumatic \narthritis of the knee.... \nIMAGING:  X-rays of the right knee show severe end-stage \ntricompartmental arthritis of his knee.  There is joint space \nnarrowing and varus deformity, osteophyte formation, and \nsubchondral sclerosis.  There is an intramedullary rod present \nin his femur.  He has no acute fractures or dislocations.   \nIMPRESSION/DIAGNOSIS:  50-year-old gentleman with \nexacerbation of his arthritis in his right knee.  Treatment \noptions were discussed at this time and include a steroid \ninjection.   \n \n Dr. Jonathan Creech reported on or about August 30, 2022: \n50-year-old male past med history of hypertension and \nsurgical history of a left total hip arthroplasty with right knee \npain for years.  He had a twisting injury at work on June 15 \nand has exacerbated his chronic knee pain.  His right knee \npain is moderate to severe, sometimes dull, sometimes sharp \npain that is chronic, steady, improved with rest, and worse \nwith activities.  [Has] tried NSAIDs, Tylenol, and a \ncorticosteroid injection the last was on July 15.... \nX-rays of the right knee demonstrate varus alignment with \nbone-on-bone arthritis the medial compartment.  There is a \nprevious antegrade femoral nail with a distal interlocking \nscrew.  There are osteophytes, subchondral sclerosis, and \ncysts.... \nThis is a Worker’s Compensation injury.  His right knee \nosteoarthritis is a degenerative disease over multiple years.  It \nis possible that he has now acute on chronic pain from a \nmeniscal injury or other soft tissue injury on top of his arthritis.   \n \n\nHOUSE - H208370  5\n  \n \n \n Dr. Creech performed surgery on November 16, 2022:  “Right \nRobotic Total Knee Arthroplasty.”  The pre- and post-operative diagnosis \nwas “Right Knee Osteoarthritis.” \n The claimant testified that he benefitted from surgery performed by \nDr. Creech.     \n Dr. Creech assessed and planned the following on or about February \n16, 2023: \nX-rays of the right knee demonstrate total knee arthroplasty \nwith appropriate alignment and positioning.  No complicating \nfeatures. \n50-year-old male with past medical history of hypertension \nnow 3 months out status post right total knee arthroplasty \ndoing well.  His pain is controlled.  He is happy with his \nresults.  He states he is having difficulty bending his knee to \nget into his truck. \nDiscussed returning to work for sedentary duty for 3 weeks \nand then returning to full duty.  Physical therapy ordered to try \nto increase flexion.  He would like to return to clinic in 6 weeks \nfor a recheck.... \n \n An IMPAIRMENT EVALUATION SUMMARY – Lower Extremity was \nperformed at Functional Testing Centers, Inc. on April 19, 2023.  It was \nnoted at that time, “Mr. House reports injury at work when he stepped in a \nhole while at work resulting in the onset of right knee pain.”  An \nOccupational Therapist and a Certified Senior Disability Analyst concluded, \n“The guides recommend using the section that provides the greater \nimpairment.  In Mr. House’s case, the Diagnosis based estimate impairment \nis the greatest impairment and is the most appropriate, applicable \n\nHOUSE - H208370  6\n  \n \n \nimpairment for this patient.  This results in a 15% Whole Person, 37% \nLower Extremity impairment as a result of this work related injury.”   \nThe parties stipulated that the claimant “has been assigned an \nimpairment rating of 37% to his right lower extremity.”   \n A pre-hearing order was filed on June 28, 2023.  According to the \npre-hearing order, the claimant contended that he was “entitled to \npermanent partial disability benefits for his compensable injury and that his \nattorney is entitled to the statutory fees.”   \n The respondents contended that “all appropriate benefits have been \npaid.  The claimant suffered a twisting injury to his right knee resulting in a \nmeniscal tear.  Prior to his injury, he had surgery on his right knee and had \na prior diagnosis of osteoarthritis which was deemed to be bone on bone.  \nDr. Creech’s report of 8/30/22 indicated the claimant has had chronic right \nknee pain for years.  Medical reports, including the surgical report, support \nthe diagnosis of osteoarthritis being the sole need for the total knee \nreplacement.  In light of this, it is respondents’ position that the claimant’s \nwork related meniscal injury is not the major cause of the need for the total \nknee replacement or the permanent rating that has been assigned.  Thus, it \nis respondents’ position that they are not liable for that impairment rating.”   \n The parties agreed to litigate the following issues: \n1.  Claimant’s entitlement to permanent disability benefits in \nan amount equal to 37% to the lower extremity. \n\nHOUSE - H208370  7\n  \n \n \n2.  Attorney’s fee.   \n \n After a hearing, an administrative law judge filed an opinion on \nOctober 2, 2023.  The administrative law judge found that the claimant \nfailed to prove he was entitled to permanent partial disability benefits.  The \nclaimant appeals to the Full Commission. \nII.  ADJUDICATION \n Permanent impairment is any functional or anatomical loss remaining \nafter the healing period has been reached.  Johnson v. Gen. Dynamics, 46 \nArk. App. 188, 878 S.W.2d 411 (1994).  The Commission has adopted the \nAmerican Medical Association Guides to the Evaluation of Permanent \nImpairment (4\nth\n ed. 1993) to be used in assessing anatomical impairment.  \nSee Commission Rule 34; Ark. Code Ann. §11-9-521(g)(Repl. 2012).  It is \nthe Commission’s duty, using the Guides, to determine whether the \nclaimant has proved he is entitled to a permanent anatomical impairment.  \nPolk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).   \n Any determination of the existence or extent of physical impairment \nshall be supported by objective and measurable physical findings.  Ark. \nCode Ann. §11-9-704(c)(1)(Repl. 2012).  Objective findings are those \nfindings which cannot come under the voluntary control of the patient.  Ark. \nCode Ann. §11-9-102(16)(A)(i)(Repl. 2012).  Although it is true that the \nlegislature has required medical evidence supported by objective findings to \n\nHOUSE - H208370  8\n  \n \n \nestablish a compensable injury, it does not follow that such evidence is \nrequired to establish each and every element of compensability.  Stephens \nTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  All that \nis required is that the medical evidence be supported by objective medical \nfindings.  Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 \n(2006).  Medical opinions addressing impairment must be stated within a \nreasonable degree of medical certainty.  Ark. Code Ann. §11-9-\n102(16)(B)(Repl. 2012). \n Permanent benefits shall be awarded only upon a determination that \nthe compensable injury was the major cause of the disability or impairment.  \nArk. Code Ann. §11-9-102(F)(ii)(a)(Repl. 2012).  “Major cause” means \n“more than fifty percent (50%) of the cause,” and a finding of major cause \nmust be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(Repl. 2012).  Preponderance of the evidence \nmeans the evidence having greater weight or convincing force.  \nMetropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d \n252 (2003). \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to meet his burden of proving by a preponderance of \n[the] evidence that he is entitled to permanent partial disability benefits in an \namount equal to 37% to the lower extremity for his compensable injury.”  \n\nHOUSE - H208370  9\n  \n \n \nThe Full Commission finds that the claimant proved he was entitled to a \nrating for permanent anatomical impairment in the amount of 37% to the \nright lower extremity.   \n The claimant sustained injuries which included a right kneecap \nfracture as the result of a motor vehicle accident occurring in 1997.  Dr. \nLong noted in December 2016 that the claimant had undergone an \narthrotomy of the right knee following the 1997 accident.  Dr. Long’s \nimpression in 2016 included “6.  Severe posttraumatic arthrosis of the right \nknee.”  It was noted in May 2022 that the claimant suffered from chronic \npain in his right knee, “Knee bone on bone on the right.”   \n The Full Commission therefore recognizes that the claimant suffered \nfrom a pre-existing arthritic condition in his right knee.  However, the parties \nstipulated that the claimant “sustained a compensable injury to his right \nknee” while employed with the respondents on June 15, 2022.  The \nclaimant testified that the June 15, 2022 compensable injury occurred as \nthe result of a twisting motion after he stepped into a hole.  Dr. Johnson \nexamined the claimant on July 15, 2022 and reported a “varus deformity” in \nthe claimant’s right knee.  The Full Commission finds that the “varus \ndeformity” reported by Dr. Johnson was a supporting objective medical \nfinding.  See Singleton, supra.  Dr. Long had expressly noted in 2016 with \nregard to the claimant’s right knee, “He does not have any angular \n\nHOUSE - H208370  10\n  \n \n \ndeformity.”  The claimant was suffering from an objective varus deformity \nfollowing the June 15, 2022 stipulated compensable injury to the right knee.  \nDr. Johnson’s impression on July 15, 2022 was “exacerbation of his arthritis \nin his right knee.\"   \n Dr. Creech performed a \"Right Robotic Total Knee Arthroplasy” on \nNovember 16, 2022.  The claimant reported benefit from surgery performed \nby Dr. Creech, and post-surgical improvement is evidence demonstrating \nthat surgical treatment was reasonably necessary in connection with the \ncompensable injury.  Hill v. Baptist Med. Ctr., 74 Ark. App. 250, 48 S.W.3d \n544 (2001).   \n As we have discussed, an IMPAIRMENT EVALUATION SUMMARY \n– Lower Extremity was performed at Functional Testing Centers, Inc. on \nApril 19, 2023.  Following the IMPAIRMENT EVALUATION SUMMARY, the \nclaimant was assigned permanent anatomical impairment in the amount of \n“15% Whole Person, 37% Lower Extremity impairment as a result of this \nwork related injury.”  An Occupational Therapist and a Certified Senior \nDisability Analyst concluded in part that the claimant had sustained a \n“Flexion” impairment resulting from “PASSIVE Range of Motion” of the right \nknee.  “Passive” range of motion performed by an examiner is not under the \nclaimant’s voluntary control and can be interpreted as objective medical \nevidence establishing anatomical impairment.  See Hayes v. Wal-Mart \n\nHOUSE - H208370  11\n  \n \n \nStores, 71 Ark. App. 207, 29 S.W.3d 751 (Ark. 2000).  See also Evans v. \nFirestone Bldg. Prods., 2020 Ark. App. 80, 594 S.W.3d 139.  The Full \nCommission finds in the present matter that the 15% whole-person, 37% \nlower extremity impairment was supported by objective medical findings to \ninclude the post-compensable injury “varus deformity” reported by Dr. \nJohnson and the passive range of motion deficit observed by the evaluators \nat Functional Testing Centers, Inc. \n The respondents argue on appeal that the major cause of the \nclaimant’s permanent anatomical impairment was the preexisting arthritic \ncondition in the claimant’s right knee.  The respondents cite as authority \nHickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 S.W.3d 591 (2008).  \nIn Hickman, the Arkansas Supreme Court affirmed the Commission’s \ndecision that the claimant failed to prove his compensable injury was the \nmajor cause of knee-replacement surgery and a resulting anatomical \nimpairment rating.  The Supreme Court’s holding in Hickman is readily \ndistinguishable from the evidence in the present matter.  In Hickman, for \ninstance, a treating physician had testified that pre-existing degenerative \nchanges were the major cause of the claimant’s surgery and impairment.  \nThere was no such testimony in the present matter.  In fact, there were no \nexpert opinions of record contradicting the conclusion that the claimant had \n\nHOUSE - H208370  12\n  \n \n \nsustained permanent anatomical impairment “as a result of this work related \ninjury.”   \n The evidence in the present matter is similar to the evidence \npresented in Ark. Forestry Comm. v. Lindsey, 2021 Ark. App. 497, 638 \nS.W.3d 333, where the Court of Appeals distinguished the Court’s holding \nin Hickman, supra.  The Court in Lindsey affirmed the Commission’s finding \nthat the claimant had sustained a permanent anatomical impairment as a \nresult of his compensable injury.  The claimant in Lindsey proved he was \nentitled to a permanent anatomical impairment despite a pre-existing \ndegenerative condition.   \n The Full Commission finds in the present matter that the claimant \nproved by a preponderance of the evidence that he sustained a 15% whole-\nperson, 37% lower extremity impairment as a result of his compensable \ninjury.  The Full Commission finds that this rating was consistent with the 4\nth\n \nEdition of the Guides at Table 41, p. 3/78.  The permanent rating was \nsupported by objective and measurable physical findings, including a varus \ndeformity and passive range of motion deficit.  The claimant proved that the \nJune 15, 2022 compensable injury was the major cause of his permanent \nanatomical impairment.  The permanent impairment assessed by the \nevaluators at Functional Testing Centers, Inc. was not the result of a prior \ninjury or pre-existing condition.    \n\nHOUSE - H208370  13\n  \n \n \n After reviewing the entire record de novo, the Full Commission \nreverses the administrative law judge’s opinion.  The Full Commission finds \nthat the claimant proved he sustained permanent anatomical impairment in \nthe amount of 37% to the right lower extremity as a result of the \ncompensable injury sustained by the claimant on June 15, 2022.  The \nclaimant’s attorney is entitled to fees for legal services in accordance with \nArk. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing on appeal to the \nFull Commission, the claimant’s attorney is entitled to an additional fee of \nfive hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012). \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION      \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved he sustained a thirty-seven percent (37%) permanent \nanatomical impairment to his lower right extremity. \n\nHOUSE - H208370  14\n  \n \n \n \"Permanent impairment\" has been defined as \"any permanent \nfunctional or anatomical loss remaining after the healing period has \nended.\"  Carrick v. Baptist Health, 2022 Ark. App. 134, 643 S.W.3d 466 \n(2022).  \nAny determination of the existence or extent of physical impairment \nmust be supported by objective and measurable physical or mental \nfindings.  Ark. Code Ann. §11-9-704(c)(1)(B).  \"Objective findings\" are those \nfindings that cannot come under the voluntary control of the patient, and \ncomplaints of pain are not to be considered objective medical findings.  Ark. \nCode Ann. §11-9-102(16)(A); Reed v. First Step, Inc., 2019 Ark. App. 289, \n577 S.W.3d 424 (2019).  \nThe Commission is authorized to decide which portions of the \nmedical evidence to credit and to translate this evidence into a finding \nof permanent impairment using the American Medical Association Guides \nto the Evaluation of Permanent Impairment (4th ed. 1993); thus, the \nCommission may assess its own impairment rating rather than rely solely \non its determination of the validity of ratings assigned by \nphysicians.  Carrick, 2022 Ark. App. 134, 643 S.W.3d 466.  \"Permanent \nbenefits shall be awarded only upon a determination that the compensable \ninjury was the major cause of the disability or impairment.\"  Ark. Code Ann. \n\nHOUSE - H208370  15\n  \n \n \n§11-9-102(4)(F)(ii)(a); Leach v. Cooper Tire & Rubber Co., 2011 Ark. App. \n571 (2011). \n In the present case, the claimant has failed to meet his burden of \nproving that his compensable injury was the major cause of his alleged \npermanent impairment.  Prior to his work-related injury, the claimant was \ndiagnosed with “severe posttraumatic arthrosis of the right knee from a \nfracture of the femur and injury around the patella that occurred in a motor \nvehicle accident in the 1990s.”  (Reps. Ex. 1, P. 9).  \nOn May 11, 2022, just prior to his on-the-job accident, Dr. Terri \nLewelling classified the claimant’s condition as “[k]nee bone bone on the \nright; Lots of pain all the time; Pt is not helpful; walking his hard after 1/2 \nday.” (Resp. Ex. 1, P. 13). \n After the claimant’s compensable injury, Dr. Trent Johnson noted in \nhis report dated July 15, 2022, the claimant’s pre-existing degenerative \ncondition, finding “[s]evere end-state tricompartmental arthritis of his right \nknee.  There is joint space narrowing and varus deformity, osteophyte \nformation, and subchondral sclerosis.”  (Resp. Ex. 1, P. 16).  Post-accident \nx-rays of his right knee revealed “varus alignment with bone-on-bone \narthritis of the medial compartment.  There is a previous antegrade femoral \nnail with a distal interlocking screw.  There are osteophytes, subchondral \nsclerosis, and cysts.”  (Resp. Ex. 1, P. 28).  Dr. Jonathan Creech’s pre-\n\nHOUSE - H208370  16\n  \n \n \noperative findings state that the claimant’s “right knee osteoarthritis is a \ndegenerative disease over multiple years... with right knee pain for years.” \nId. \n Considering the medical records leading up to the claimant’s injury \nand the claimant’s complaints of debilitating pain just thirty-five (35) days \nprior to his work-related injury, it is clear that the major cause of the \nclaimant’s permanent partial impairment is his pre-existing arthrosis and \nosteoarthritis, and the claimant has failed in meeting his burden of proof in \nthis matter. \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":23513,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H208370 JASON HOUSE, EMPLOYEE CLAIMANT PENSKE LOGISTICS, INC., EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE COMANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 9, 2024","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["fracture","knee","hip","back","shoulder"],"fetchedAt":"2026-05-19T22:29:45.737Z"},{"id":"full_commission-H003228-2024-04-09","awccNumber":"H003228","decisionDate":"2024-04-09","decisionYear":2024,"opinionType":"full_commission","claimantName":"Kimberly Parker","employerName":"Nidec Motor Corp","title":"PARKER VS. NIDEC MOTOR CORP. AWCC# H003228 APRIL 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Parker_Kimberly_H003228_20240409.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Parker_Kimberly_H003228_20240409.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H003228 \n \nKIMBERLY PARKER, EMPLOYEE  CLAIMANT \n \nNIDEC MOTOR CORP., EMPLOYER RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY,  RESPONDENT \nINSURANCE CARRIER/TPA  \n \nOPINION FILED APRIL 9, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE DAVID L. SCHNEIDER, \nAttorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed November 7, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at the pre-hearing \nconference conducted on May 8, 2023, and contained in a Pre-\nhearing Order filed May 9, 2023, are hereby accepted as fact. \n \n2. The claimant has failed to prove by a preponderance of the \nevidence that she sustained a compensable injury to her neck on \nor about October 2, 2019.  \n \n\n \nPARKER - H003228  2\n  \n \n \n3. The claimant has failed to prove by a preponderance of the \nevidence her entitlement to medical treatment for her alleged \nneck injury.  \n \n4. The claimant has failed to prove her entitlement to additional \nmedical treatment for her compensable right shoulder injury. \n \n5. The claimant has failed to prove her entitlement to \nreimbursement for out-of-pocket medical expenses regarding \nboth her alleged neck injury and her admittedly compensable \nright shoulder injury. \n \n6. The claimant has failed to prove by a preponderance of the \nevidence that she is entitled to temporary total disability benefits \nfrom March 3, 2021, to a date yet to be determined.  \n \n7. The claimant has failed to prove by a preponderance of the \nevidence  that her attorney is entitled to an attorney’s fee. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's November \n7, 2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n\n \nPARKER - H003228  3\n  \n \n \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite concurs and dissents. \nDISSENTING OPINION \nThe Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant failed to prove by a preponderance of the evidence that she \nsustained a compensable injury to her neck on or about October 2, 2019, nor \ndid the Claimant prove she was entitled to additional medical treatment for \nher alleged neck injury or her compensable right shoulder injury.  Further, the \nALJ found that the Claimant failed to prove her entitlement to reimbursement \nfor  out-of-pocket  medical  expenses  regarding  both  her  alleged  neck  injury \nand compensable right shoulder injury, or temporary total disability benefits \nfrom March 3, 2021 to a date yet to be determined or attorney’s fees.  After \na de novo review, I concur in part and dissent in part.  I would rule in favor of \n\n \nPARKER - H003228  4\n  \n \n \nthe  Claimant  for  her  neck  injury  and  additional  medical  treatment  of  such \ninjury and concur with the rest of the ALJ’s findings.  \nTo establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence.  A \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002). \n An  employer  shall  promptly  provide  for  an  injured  employee  such \nmedical  treatment as may  be  reasonably necessary  in  connection with  the \ninjury received by the employee.  Ark. Code Ann. § 11-9-508(a).  Reasonable \nand necessary medical services may include those necessary to accurately \ndiagnose  the  nature  and  extent  of  the  compensable  injury;  to  reduce  or \nalleviate symptoms resulting from the compensable injury; or to maintain the \nlevel of healing achieved; or to prevent further deterioration of the damage \n\n \nPARKER - H003228  5\n  \n \n \nproduced by the compensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. \nApp. 100, 911 S.W.2d 593 (1995).  \n On October 2, 2019, Claimant was moving four ten-pound coils from \na table in front of her to a table behind her when she felt a pop in her neck \nand   shoulder.   The   parties   stipulated   that   the   Claimant   suffered   a \ncompensable right shoulder injury.  However, medical treatment failed to  fully \nalleviate  the  symptoms.  The  Claimant  contended  that  she  also  sustained \ninjuries  to  her  neck.  The  ALJ  found  that  there  was  a  derangement  in  the \nClaimant’s cervical spine, but that there was insufficient proof of a causal \nconnection to the work accident.  I disagree and find that this conclusion fails \nto fully consider the medical evidence in the record.  \n Claimant testified in the hearing with the ALJ that she told her medical \nproviders about her neck difficulties and there are mentions of neck pain in \nthe Claimant’s medical records along with Claimant’s compensable shoulder \ninjury.  (Hearing Transcript page 35 Line 7, and Cl. Ex. 1 p. 48).  Claimant \nunderwent right shoulder surgery with Dr. Cordell on September 30, 2020 for \nher  compensable  right  shoulder  injury.    (Cl.  Ex.  1  p.  40-41).    Dr.  Cordell \nopined that Claimant’s scapular pain “may be related to c spine pathology.” \n(Cl. Ex. 1 p. 48).  Claimant’s authorized physician, Dr. Timothy Garlow noted \non  May  10,  2021  and  January  16,  2023  that  Claimant  was  suffering  from \n\n \nPARKER - H003228  6\n  \n \n \nperiscapular pain related to underlying cervical issues.  (Cl. Ex. 1. p. 54-56, \n60).  Claimant  underwent  an  MRI  on  February  3,  2023  which  showed \nobjective  medical  findings  in  the  cervical  spine  including  a  disc  protrusion, \nand posterior spurring protrusions.  (Cl. Ex. 1. p. 62).  \n Claimant suffered an admittedly compensable injury to her shoulder \nas a result of her work-related accident on October 2, 2019.  Dr. Cordell \nidentified that Claimant’s scapular pain may be related to cervical spine \npathology placing Claimant at maximum medical improvement with no \nimpairment for her shoulder.  (Cl. Ex. 1, p. 48).  Claimant’s shoulder injury \nhad been fully-treated but no alleviation of the symptoms occurred. \nClaimant was then evaluated by Dr. Garlow who found objective medical \nfindings of an injury in Claimant’s cervical spine.  In consideration of \nClaimant’s consistent complaints of symptoms in the shoulder and cervical \nareas, and the identification of a clearly objective cervical injury, I find that \nthere is sufficient causal connection between the work accident and the \ncervical injury.  Therefore, Claimant’s cervical injury should be deemed a \ncompensable injury for which she should receive additional medical \ntreatment that is reasonable and necessary.  \n  \n\n \nPARKER - H003228  7\n  \n \n \nTherefore,   I   find   that   the   Claimant   proved   she   sustained   a \ncompensable cervical injury for which she is entitled to additional reasonable \nand necessary medical treatment.  Based upon the evidence in the record I \nconcur with the remainder of the ALJ’s findings.  \n For the foregoing reasons, I concur in part and dissent in part. \n \n    ___________________________________ \n  M. SCOTT WILLHITE, Commissioner","textLength":8585,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H003228 KIMBERLY PARKER, EMPLOYEE CLAIMANT NIDEC MOTOR CORP., EMPLOYER RESPONDENT TRAVELERS INDEMNITY COMPANY, RESPONDENT INSURANCE CARRIER/TPA OPINION FILED APRIL 9, 2024 Upon review before the FULL COMMISSION in Little Rock,...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["neck","shoulder","cervical"],"fetchedAt":"2026-05-19T22:29:45.744Z"},{"id":"alj-H205851-2024-04-09","awccNumber":"H205851","decisionDate":"2024-04-09","decisionYear":2024,"opinionType":"alj","claimantName":"Gerard Brucker","employerName":"Dredgit Corporation","title":"BRUCKER VS. DREDGIT CORPORATION AWCC# H205851 April 9, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/BRUCKER_GERARD_H205851_20240409.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRUCKER_GERARD_H205851_20240409.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H205851 \n \nGERALD A. BRUCKER, EMPLOYEE        CLAIMANT \n \nDREDGIT CORPORATION, EMPLOYER           RESPONDENT \n \nCOMMERCE AND INDUSTRY / AIG, \nINSURANCE CARRIER / TPA             RESPONDENT \n           \nOPINION FILED APRIL 9, 2024 \n \nHearing  before  Administrative  Law  Judge  James  D.  Kennedy  in Little  Rock,  Pulaski \nCounty, Arkansas on March 13, 2024. \n \nClaimant is pro se and appeared along with his wife. \n \nRespondents are represented by Mr. Jarrod S. Parrish, Attorney-at-Law of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on March 13, 2024, in Little  Rock, \nArkansas, on respondents’ Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode Annotated §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  \nThe claimant was pro se and appeared along with his wife.  The claimant contended that he \nwas injured in an incident on or about October 8, 2022, and filed a Form AR-C, a little under \na year later, on October 8, 2022.  The respondents filed an AR-2 denying the claim based \nupon the lack of an employment relationship among other things.  The prehearing material \nwas sent to the parties on or about April 11, 2023.  The claimant responded by May 4, 2023, \nstating that he wanted to stop the process and indicating that he did not want to go forward.  \nConsequently, a Motion to Dismiss was filed on June 19, 2023, by the respondents.  Claimant \nthen  wrote  a  letter  on  July  19,  2023,  requesting  a  hearing,  and  at  that  time  the  Motion  to \nDismiss  was  held  in  abeyance.    The Claimant eventually  made  a prehearing  filing  and  a \nprehearing conference was held by phone and a hearing was set for January 16 of 2024.  Six \n\nBRUCKER – H205851 \n \n2 \n \n(6) days prior to the hearing, the claimant wrote indicating that he wanted to drop his claim.  \nDismissal  Interrogatories  were  forwarded  to  the  claimant, which were  never  returned  and \nconsequently this matter was set for a hearing on respondents’ Motion to Dismiss \n The respondents  contend  that twenty-nine  (29) months  have  now  passed  and  the \nclaimant has not gotten the matter to a hearing.  Further, the respondents contend that the \nclaimant worked under a contract with Respondent, Dredgit, which designates the claimant’s \nLLC  as  an  independent  contractor  and  that  payment  to  the claimant  came  from  his  own \npersonal LLC, and that consequently, the matter should be dismissed.   \nThe claimant contended at the time of the hearing to dismiss that he is working with \nthe  IRS  to  make  a  determination  if  he was an  independent  contractor  or  an  employee.  \nFurther, he stated  that  he had  two (2) employees  and  he  needed  to  figure  out  how  to  do \ndepositions.  He also contended that he had spent over one hundred (100) hours talking to \nattorneys in regard to representation about this matter, only to be told they did not want to \nrepresent him. \n The Motion to Dismiss was filed on or about June 19, 2023, requesting that the matter  \nbe  dismissed  for  failure to prosecute pursuant to Arkansas Code Annotated §11-9-702(a)(4) \nand  Rule  099.13.  The  claimant  was  advised  that  under  Arkansas  law,  an  attorney \nrepresenting him in regard to his Workers’ Compensation claim was required to have his fee \napproved.  Further, he was instructed that he could contact the Arkansas Bar Association to \nobtain a list of attorneys that handled workers’ compensation cases.  The claimant was further \nadvised that this matter would be taken under advisement until April 15, 2024, a day easy to \nremember due to it being tax-day, and if he had taken no affirmative action by that time, there \nwas a good chance the matter would be dismissed.  On April 5, 2024, the claimant sent an \nemail which appeared to state that the claimant was still attempting to pursue his claim without \nthe help of counsel, which he is entitled to do. \n\nBRUCKER – H205851 \n \n3 \n \nConsequently,  there  is  no  alternative  but  to  determine  that  the  claimant  has  in  fact \ntaken affirmative steps to pursue his claim.  Consequently, this matter will be promptly set for \na pretrial hearing, and the Motion to Dismiss will again be held in abeyance.  All parties are \nput on notice that no continuances will be granted unless there are exceptional circumstances \npresented to the Commission. \n Consequently, after a review of the record as a whole, to include all evidence properly \nbefore the Commission, and having an opportunity to hear the statements of the attorney for \nthe respondent and  statements  by  the claimant, and  after  the  matter  being  taken  under \nadvisement for thirty (30) days with the claimant now determined to have taken affirmative \nsteps to pursue his claim by the sending of an email on April 4, 2024, there is no alternative \nbut to find that the Motion to Dismiss will again be held in abeyance and this matter will be \nset for a prompt prehearing telephone conference.   \nORDER \n Pursuant to the above statement of the case, there is no alternative but to find that the \nMotion  to  Dismiss  is  again  taken  under  abeyance,  and  the matter  will  be  set  for  a  prompt \nprehearing telephone conference in order to pursue the claimant’s claim for benefits. \nIT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":5508,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205851 GERALD A. BRUCKER, EMPLOYEE CLAIMANT DREDGIT CORPORATION, EMPLOYER RESPONDENT COMMERCE AND INDUSTRY / AIG, INSURANCE CARRIER / TPA RESPONDENT OPINION FILED APRIL 9, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulask...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:06.642Z"},{"id":"alj-H302077-2024-04-09","awccNumber":"H302077","decisionDate":"2024-04-09","decisionYear":2024,"opinionType":"alj","claimantName":"Christopher Brumley","employerName":null,"title":"BRUMLEY VS. ARK. STEEL ASSOCS. LLCAWCC# H302077April 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Brumley_Christopher_H302077_20240409.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brumley_Christopher_H302077_20240409.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H302077 \n \n \nCHRISTOPHER L. BRUMLEY, EMPLOYEE CLAIMANT \n \nARK. STEEL ASSOCS. LLC, \nEMPLOYER RESPONDENT \n \nTRAVELERS CASUALTY & SURETY CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED APRIL 9, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on April  5,  2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Guy  Alton  Wade,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on April  5,  2024, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  were Commission Exhibit  1 and Respondents’ Exhibit 1, \npleadings, correspondence and forms related to this claim, each consisting of 16 \npages. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness dated March  31,  2023,  Claimant \npurportedly suffered an injury to his neck at work on December 17, 2021, when a \n\nBRUMLEY – H302077 \n \n2 \n \nlow-hanging pipe caught his hard hat and jerked his head backwards.  According \nto the  Form  AR-2 that  was filed on March  31,  2023, Respondents denied the \nclaim in its entirety. \n Claimant  filed  a  Form  AR-C  on  or  about  March  27,  2023,  concerning  this \nalleged injury.  Then, on August 29, 2023, through then-counsel Laura Beth York, \nClaimant filed another Form AR-C.  Therein, he alleged that he was entitled to the \nfull range of initial and additional benefits as a result of alleged injuries to his neck, \nright shoulder, and “other whole body.”  No  hearing  request  accompanied  this \nfiling.  Respondents’ counsel entered his appearance by way of letter on April 24, \n2023; and on August 30, 2023, he informed the Commission that his clients were \nstill disputing that Claimant had suffered a compensable injury. \n On November 6, 2023, York moved to withdraw from the case.  In an Order \nentered  on December 1,  2023, the  Full  Commission granted  the  motion  under \nAWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nDecember 29, 2023.   On  that date, Respondents filed the  instant motion, asking \nfor  dismissal  of  the  claim—ostensibly under  AWCC  R.  099.13,  since  it  asserted \n“lack of prosecution” as the basis for dismissal.    My  office wrote  Claimant on \nJanuary  2, 2024,  asking  for  a  response  to  the motion within 20 days.   The  letter \nwas sent by first class and certified mail to the Newport address of Claimant listed \nin the file and his Forms AR-C.  Someone with an illegible signature claimed the \n\nBRUMLEY – H302077 \n \n3 \n \ncertified letter, and the first-class letter was not returned.  However, no response \nfrom Claimant to  the  motion was  forthcoming.   For  that  reason,  on January 24, \n2024,  a  hearing  on  the Motion to Dismiss was  scheduled for March  1,  2024, at \n10:30 p.m.  at  the Craighead County  Courthouse  in Jonesboro.   The  notice  was \nsent  to  Claimant  via  first-class  and  certified mail to the  same  address as  before.  \nThe  evidence  preponderates  that  the  notice  reached  Claimant.    On  February  1, \n2024, his fiancée contacted my office and stated that he was (as of that date) in \nthe Arkansas Department of Correction with a parole date of March 1, 2024.  For \nthat reason, I issued an amended Notice of Hearing on that date, rescheduling the \nhearing on the motion for April 5, 2024, at 10:30 a.m.  Yet again, the notice was \nsent to Claimant at the same address by certified and first-class mail.  But in this \ninstance, while the first-class letter was not returned, the certified letter came back \nto the Commission, unclaimed. \n The hearing on the Motion to Dismiss proceeded as scheduled on April 5, \n2024.    Again,  Claimant  failed  to  appear  at the  hearing.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under the  aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \n\nBRUMLEY – H302077 \n \n4 \n \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for  initial \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \n\nBRUMLEY – H302077 \n \n5 \n \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the April 5, 2024, hearing to argue against its \ndismissal) since the filing of his amended Form AR-C on August 29, 2023.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the appellate courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nBRUMLEY – H302077 \n \n6 \n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7619,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H302077 CHRISTOPHER L. BRUMLEY, EMPLOYEE CLAIMANT ARK. STEEL ASSOCS. LLC, EMPLOYER RESPONDENT TRAVELERS CASUALTY & SURETY CO., CARRIER RESPONDENT OPINION FILED APRIL 9, 2024 Hearing before Administrative Law Judge O. Milton Fine II on April 5, 2024, in Jonesb...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["neck","shoulder","back"],"fetchedAt":"2026-05-19T22:55:08.753Z"},{"id":"alj-H303493-2024-04-09","awccNumber":"H303493","decisionDate":"2024-04-09","decisionYear":2024,"opinionType":"alj","claimantName":"Gabriel Corp","employerName":null,"title":"CORP VS. LEXICON, INC.AWCC# H303493April 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Corp_Gabriel_H303493_20240409.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Corp_Gabriel_H303493_20240409.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303493 \n \n \nGABRIEL B. CORP., EMPLOYEE CLAIMANT \n \nLEXICON, INC., \nEMPLOYER RESPONDENT \n \nACIG INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED APRIL 9, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on April  5,  2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Guy  Alton  Wade,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on April  5,  2024, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  were Commission Exhibit  1 and  Respondents’ Exhibit  1, \npleadings, correspondence and forms related to this claim, consisting of nine and \nseven pages, respectively. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness dated June  9,  2023,  Claimant \npurportedly suffered an injury to his right knee at work on May 22, 2023, while he \n\nCORP – H303493 \n \n2 \n \nwas  welding.  According  to the  Form  AR-2 that  was filed on June  14,  2023, \nRespondents denied the claim in its entirety. \n Claimant  filed  a  Form  AR-C  on  or  about  May  31,  2023,  concerning  this \nalleged injury.  Therein, he requested the full range of initial benefits.  No hearing \nrequest  accompanied  this  filing.   Respondents’ counsel entered his appearance \nby way of letter on June 20, 2023. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nJanuary  9,  2024.    On  that  date, Respondents filed  the  instant  motion,  asking  for \ndismissal of the claim—ostensibly under AWCC R. 099.13, since it asserted “lack \nof  prosecution”  as  the  basis  for  dismissal.   The  file  was  assigned  to  me  on \nFebruary 2, 2024; and on February 5, 2024, my office wrote Claimant, asking for a \nresponse  to  the  motion within  20  days.   The  letter  was  sent  by  first  class and \ncertified mail to the Lake St. Louis, Missouri address of Claimant listed in the file \nand  his  Form  AR-C.   The  United  States  Postal  Service (“USPS”) was  unable  to \nconfirm whether Claimant claimed the certified letter; but the first-class letter was \nnot   returned.    However,   no   response   from Claimant to   the   motion was \nforthcoming.   For  that reason,  on February 29,  2024,  a  hearing on the Motion to \nDismiss was  scheduled for April  5, 2024, at 12:00 p.m. at the Craighead County \nCourthouse  in Jonesboro.   The  notice  was  sent  to  Claimant  via  first-class  and \ncertified  mail  to  the  same  address  as  before.    Once  again,  USPS  could  not \n\nCORP – H303493 \n \n3 \n \nconfirm  that  Claimant  claimed  the  certified  letter;  but  the  one  sent  by  first-class \nmail was not returned to the Commission. \n The hearing on the Motion to Dismiss proceeded as scheduled on April 5, \n2024.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under the  aforementioned \nauthority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for  initial \nbenefits is hereby  dismissed without  prejudice under  AWCC  R. \n099.13. \n\nCORP – H303493 \n \n4 \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the April 5, 2024, hearing to argue against its \ndismissal) since the filing of his Form AR-C on May 31, 2023.  Thus, the evidence \npreponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \n\nCORP – H303493 \n \n5 \n \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the appellate courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":6655,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H303493 GABRIEL B. CORP., EMPLOYEE CLAIMANT LEXICON, INC., EMPLOYER RESPONDENT ACIG INS. CO., CARRIER RESPONDENT OPINION FILED APRIL 9, 2024 Hearing before Administrative Law Judge O. Milton Fine II on April 5, 2024, in Jonesboro, Craighead County, Arkansas. ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:55:10.823Z"},{"id":"alj-H305786-2024-04-09","awccNumber":"H305786","decisionDate":"2024-04-09","decisionYear":2024,"opinionType":"alj","claimantName":"Thomas Maness","employerName":null,"title":"MANESS VS. ULTIMATE FORD, INC.AWCC# H305786April 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MANESS_THOMAS_H305786_20240409.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MANESS_THOMAS_H305786_20240409.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H305786 \n \nTHOMAS A. MANESS, EMPLOYEE        CLAIMANT \n \nULTIMATE FORD, INC., EMPLOYER               RESPONDENT \n \nRISK MANAGEMENT RESOURCES,  \nCARRIER / TPA               RESPONDENT \n            \nOPINION FILED APRIL 9, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on April 9, 2024. \n \nClaimant is represented by Mr. Mark Alan Peoples, Attorney-at-Law of Little Rock, \nArkansas, who waived his right of appearance as long as it was agreed that if the \nmatter was dismissed, it would be dismissed without prejudice. \n \nRespondents  are  represented  by Mr. Jarrod  S.  Parrish, Attorney-at-Law  of Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on April  9, 2024, in Little  Rock, \nArkansas, on  respondents’ Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas  Code  Annotated §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant was represented by Mark Alan Peoples who waived his \nright of appearance as long as it was agreed that if the matter was dismissed, it would be \ndismissed without prejudice.  The claimant had filed a Form AR-C on November 27, 2023, \ncontending  that  he  had  injured his left thumb  and  hand.  The  First  Report  of  Injury in \nregard to this claim had been filed previously on September 1, 2023, stating that the claim \nconsisted of a contusion or strain.  The Form AR- 2 filed on September 15, 2023, provided \nthat the claim occurred on August 31, 2023, and that disability was continuous for the first \neight (8) days.   \n\nMANESS – H305786 \n \n2 \n \nThe claimant was represented by Mark Alan Peoples.   A Motion to Dismiss was \nfiled on March 13, 2024, requesting that the matter be dismissed for failure to prosecute \npursuant to Commission Rule 099.13 and Ark. Code Ann. §11-9-702.  The claimant has \nnot requested a hearing to date and more than six (6) months have passed since the filing \nof the original claim.  The claimant’s attorney waived his appearance if it was agreed that \nthe claim would be dismissed without prejudice.  \n Appropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was set for April 9, 2024, in Little Rock, Arkansas.  At the time of the \nhearing, Jarrod  S.  Parrish appeared  on  behalf  of  the respondents and asked  that  the \nmatter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  Ark. Code Ann. §11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3216,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305786 THOMAS A. MANESS, EMPLOYEE CLAIMANT ULTIMATE FORD, INC., EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, CARRIER / TPA RESPONDENT OPINION FILED APRIL 9, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski County, Ark...","outcome":"dismissed","outcomeKeywords":["dismissed:12"],"injuryKeywords":["strain"],"fetchedAt":"2026-05-19T22:55:12.898Z"},{"id":"full_commission-H301098-2024-04-05","awccNumber":"H301098","decisionDate":"2024-04-05","decisionYear":2024,"opinionType":"full_commission","claimantName":"Steven Carrick","employerName":"Circle K Stores, Inc","title":"CARRICK VS. CIRCLE K STORES, INC. AWCC# H301098 APRIL 5, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Carrick_Steven_H301098_20240405.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Carrick_Steven_H301098_20240405.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H301098 \n \n STEVEN C. CARRICK, EMPLOYEE  CLAIMANT \n \nCIRCLE K STORES, INC., EMPLOYER RESPONDENT \n \nINDEMNITY INSURANCE CO. OF NORTH AMERICA,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED APRIL 5, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents represented by the HONORABLE LEE J. MULDROW, \nAttorney at Law, Litte Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed December 18, 2023.  In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2. The parties were provided reasonable notice of the Motion to \nDismiss and of the hearing thereon.  \n \n3. Claimant has failed to prosecute his claim.  \n \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n \n\n \nCARRICK - H301098  2\n  \n \n \n5. The claim is hereby dismissed without prejudice. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's December \n18, 2023 decision is supported by a preponderance of the credible \nevidence, correctly applies the law, and should be affirmed.  Specifically, \nwe find from a preponderance of the evidence that the findings of fact made \nby the Administrative Law Judge are correct and they are, therefore, \nadopted by the Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2107,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H301098 STEVEN C. CARRICK, EMPLOYEE CLAIMANT CIRCLE K STORES, INC., EMPLOYER RESPONDENT INDEMNITY INSURANCE CO. OF NORTH AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 5, 2024 Upon review before the FULL COMMISS...","outcome":"affirmed","outcomeKeywords":["affirmed:3","dismissed:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.701Z"},{"id":"alj-H303952-2024-04-05","awccNumber":"H303952","decisionDate":"2024-04-05","decisionYear":2024,"opinionType":"alj","claimantName":"Andrew Lopez","employerName":null,"title":"LOPEZ VS. RHODES MACHINE SHOP, INC.AWCC# H303952April 5, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Lopez_Andrew_H303952_20240405.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Lopez_Andrew_H303952_20240405.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H303952 \n \n \nANDREW I. LOPEZ, EMPLOYEE CLAIMANT \n \nRHODES MACHINE SHOP, INC., \nEMPLOYER RESPONDENT \n \nFEDERATED MUTUAL INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED APRIL 5, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on April  5,  2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. Rick  Behring,  Jr.,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes before  the  Commission  on  the  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  April  5,  2024,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  were  Commission  Exhibit  1, email  correspondence  and \nUnited States Postal Service (“USPS”) responses, consisting of four pages;  and \nRespondents’  Exhibit  1,  pleadings,  correspondence  and  forms  related  to  this \nclaim, consisting of 14 numbered pages. \n\nLOPEZ – H303952 \n \n2 \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  July  18,  2023,  Claimant \npurportedly  suffered  an  injury  to  his right  hand/upper  extremity at  work  on June \n16,  2023,  when  a piece  of  pipe  that  he  had  been  welding fell  and  struck  him.  \nAccording  to  the  Form  AR-2  that  was  filed  on June  30,  2023,  Respondents \ncontroverted the claim in its entirety. \n On June 22, 2023, through then-counsel Mark Alan Peoples, Claimant filed \na Form AR-C.  Therein, he alleged that his client was entitled to the full range of \ninitial  benefits  as  a  result  of his  alleged right  hand injury.  No  hearing  request \naccompanied  this  filing.    Respondents’ counsel entered his appearance on July \n18,  2023,  and  thereafter  propounded  discovery  to  Claimant.    Those  discovery \nrequests went unanswered. \n On December 18, 2023, Peoples moved to withdraw from the case.  In an \nOrder ended on January 9, 2024, the Full Commission granted the motion under \nAWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nJanuary 19, 2024.  On that date, Respondents filed the instant motion and brief in \nsupport thereof, asking for dismissal of the claim under AWCC R. 099.13 and Ark. \nCode  Ann. § 11-9-702  (Repl.  2012).    My  office  wrote  Claimant  on January  24, \n2024, asking for a response to the motion within 20 days.  The letter was sent by \nfirst class and certified mail to the Blytheville address of Claimant listed in the file \n\nLOPEZ – H303952 \n \n3 \n \nand his Form AR-C.  USPS could not confirm that Claimant signed for the certified \nletter; but the  first-class  letter  was  not  returned.    Regardless,  no  response  from \nClaimant to the motion was forthcoming.  On February 13, 2024, a hearing on the \nMotion to Dismiss was scheduled for April 5, 2024, at 11:30 a.m. at the Craighead \nCounty Courthouse in Jonesboro.  The notice was sent to Claimant via first-class \nand  certified  mail  to  the  same  address  as  before.   Once  again, USPS  could  not \nconfirm  that Claimant claimed the  certified  letter;  but  the  one  sent  by  first-class \nmail was not returned to the Commission. \n The hearing on the Motion to Dismiss proceeded as scheduled on April 5, \n2024.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n\nLOPEZ – H303952 \n \n4 \n \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial \nbenefits  is  hereby  dismissed  without  prejudice  under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \n\nLOPEZ – H303952 \n \n5 \n \npursuit of it (including appearing at the April 5, 2024, hearing to argue against its \ndismissal) since the filing of his Form AR-C on June 22, 2023.  Thus, the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nit is unnecessary to address the application of § 11-9-702. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.  See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7135,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H303952 ANDREW I. LOPEZ, EMPLOYEE CLAIMANT RHODES MACHINE SHOP, INC., EMPLOYER RESPONDENT FEDERATED MUTUAL INS. CO., CARRIER RESPONDENT OPINION FILED APRIL 5, 2024 Hearing before Administrative Law Judge O. Milton Fine II on April 5, 2024, in Jonesboro, Craig...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:04.527Z"},{"id":"full_commission-H203473-2024-04-04","awccNumber":"H203473","decisionDate":"2024-04-04","decisionYear":2024,"opinionType":"full_commission","claimantName":"Patrick Austen","employerName":"Lowe’s Home Centers LLC","title":"AUSTEN VS. LOWE’S HOME CENTERS LLC AWCC# H203473 APRIL 4, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Austen_Patrick_H203473_20240404.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Austen_Patrick_H203473_20240404.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203473 \nPATRICK AUSTEN, EMPLOYEE      CLAIMANT \nLOWE’S HOME CENTERS LLC,  \nEMPLOYER                          RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT \nSERVICES INC., \nINSURANCE CARRIER          RESPONDENT \n \n \nOPINION FILED APRIL 4, 2024 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney, \nFayetteville, Arkansas.  \nRespondents  represented  by  the  HONORABLE  RANDY  P.  MURPHY, \nAttorney, Little Rock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Respondent appeals an opinion and order of the Administrative Law \nJudge filed August 31, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law:  \n1. The stipulations agreed to by the parties at a pre-\nhearing  conference  conducted  on  August  19, \n2023, and contained in a pre-hearing order filed \n\nAUSTEN - H203473 \nApril 21, 2019, as modified, are hereby accepted \nas fact. \n \n2. Claimant has met his burden of proof by a \npreponderance of the evidence that he is \nentitled to additional medical benefits from Dr. \nJames Blankenship for his compensable back \ninjury.   \nWe have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s August 31, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the Administrative \nLaw  Judge  are  correct  and  they  are,  therefore,  adopted  by  the  Full \nCommission.  \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \nFor prevailing on this appeal before the Full Commission, Claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn.  §11-9-715  (Repl.  2012).  For  prevailing  on  appeal  to  the  Full \nCommission, the Claimant’s attorney is entitled to an additional fee of five \nhundred  dollars  ($500),  pursuant  to Ark.  Code Ann.  §11-9-715(b)  (Repl. \n2012). \n \n \n\nAUSTEN - H203473 \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n \n \nCommissioner Mayton dissents \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion.  After my de novo \nreview of the file, I find that the claimant has failed to prove by a \npreponderance of the credible evidence that he is entitled to additional \nmedical treatment by Dr. James Blankenship for his compensable back \ninjury. \n On July 12, 2019, the claimant suffered an admittedly compensable \ninjury to his low back when loading a refrigerator onto the lift grate of a \ndelivery truck.  The claimant was initially seen at MedExpress in Fayetteville \nand was diagnosed with a muscle strain.  (Resp. Ex. 1, Pp. 1-4).  He was \nreleased to full duty at that time.  (Resp. Ex. 1, P. 4).  After continued \ncomplaints, MedExpress diagnosed the claimant with a unilateral inguinal \nhernia.  (Resp. Ex 1, P. 10).  The claimant was seen by Dr. Robert Petrino \non August 12, 2019, who did not feel the claimant’s pain was related to a \n\nAUSTEN - H203473 \nhernia, but rather to his low back, and referred the claimant to Dr. Luke \nKnox to be reevaluated.  (Resp. Ex. 1, Pp. 14-16). \n At the claimant’s September 16, 2019 visit, Dr. Knox indicated that \nthe claimant’s active problems were: \n1. DDD (degenerative disc disease), lumbar \n2. Lumbar disc herniation \n3. Lumbar foraminal stenosis \n4. Lumbar pain \n5. Lumbar radiculopathy \n6. Sciatica of the right side (Resp. Ex. 1, P. 17). \nUpon physical examination, Dr. Knox found tenderness at “level L1-\nL2 right paraspinal, but not the lumbar spine, not the left paraspinal, not the \nleft sciatic notch and not the right sciatic notch.”  (Resp. Ex. 1, P. 18).  \nDr. Knox ordered an x-ray of the claimant’s lumbar spine as well as \nan MRI of the lumbar spine, noting that the claimant’s pain was consistent \nwith L1-L2 radiculopathy.  (Resp. Ex. 1, P. 19).  Upon reviewing the \nclaimant’s x-ray report, Dr. Knox opined that: \nDegenerative changes are noted at 3-4, 4-5 \nand 5-1, appearing to be worse at 4-5 and 5-1. \nThere is no evidence of overt instability on \nflexion and extension views, no evidence of \nerosive bony abnormality and no evidence of \ncompressive vertebral body abnormality.  \nThere are degenerative changes noted \nthroughout the lower lumbar levels with facet \nsettling.  (Resp. Ex. 1, P. 22). \n \nThe results of the claimant’s MRI showed: \nL4-5: Diffuse disc bulge asymmetric to the right \nand bilateral facet arthropathy results in mild \n\nAUSTEN - H203473 \nbilateral lateral recess narrowing and moderate \nbilateral foraminal narrowing. \n \nL5-S1: Diffuse disc bulge asymmetric to the \nright and bilateral facet arthropathy results in \nsevere right foraminal stenosis and moderate \nleft foraminal narrowing. There could be \nimpingement upon the exiting right L5 nerve \nroot.  (Resp. Ex. 1, P. 23). \n \nImpression: Lower lumbar predominant \nspondylosis, worst at L4-5 and L5-S1 levels. \nThere is severe right sided foraminal stenosis \nat L5-S1 level, which could result in \nimpingement upon the existing L5 nerve root. \n(Resp. Ex. 1, P. 23). \n \nThese results showed, “[n]o canal, lateral recess, or foraminal narrowing” at \nthe L1-L2 level.  Id.  However, upon reviewing the MRI, Dr. Knox \ndetermined that the claimant has a “foramenal disc at L1-2 on the rt will get \nstarted pain management/foraminal selective nerve block L1-2 on right.” \n(Resp. Ex. 1, P. 27).  Dr. Knox referred the claimant to Camp Interventional \nPain Associates and released him to work without limitations, full duty \n(Resp. Ex Pp. 27-31).  \n After his first visit with the claimant on October 22, 2019, Dr. \nNicholas Camp at Camp Interventional Pain Associates noted that “[a]n \nMRI to the lumbar spine performed recently was revealing for disc \nprotrusions, primarily at the right L1-2 level” and reported that he “opened \nthe patient’s MRI today during our visit and discussed, in detail, this \npatient’s underlying pathology and our treatment approaches available to \n\nAUSTEN - H203473 \naddress this pain . . . Will schedule for a right L1/2 selective nerve root \nblock with fluoroscopy.”  (Resp. Ex. 1, Pp. 31-36).  The claimant received \nnerve blocks by Dr. Camp on November 5 and November 19, 2019 (Resp. \nEx. 1 Pp. 37-44).  The claimant followed up with Dr. Knox on December 9, \n2019, reporting 75% improvement.  (Resp. Ex. 1, P. 45.) Dr. Knox’s report \nindicated that there were “[d]egenerative changes noted at L4-L5 and L5-\nS1. Right L1-L2 lateral bulging disc affecting the Right L1 nerve,” and Dr. \nKnox referred the claimant for “evaluation of extreme lateral disc herniation \nat L1-2 on the right.”  (Resp. Ex. 1, P. 47).  \nOn December 18, 2019, the claimant saw Dr. Brandon Evans who \nrecommended that the claimant continue with non-surgical measures due to \nthe improvement he had shown until that point in time.  Dr. Evans stated in \nhis report: \n37-y/o male with history of L1 radiculopathy \nthat is improved with therapies.  He how has \nsymptoms of radiculopathy that suggest a \nlower nerve root compression as it is located in \nlateral thigh.  Overall, his symptoms have \nimproved with the recent injections.  I reviewed \nhis MRI and showed and explained my \nimpression. There is a far lateral disc at L1-2 \nthat was likely the source of his original \nsymptoms. The radicular pain has resolved \nfrom this and he is left with numbness. I \nexplained that this could be permanent but the \nfact it is no longer painful suggests it is no \nlonger being injured from the disc fragment, \nthus surgery would not likely convey any more \nbenefit and only add risk.   Related to his new \nsymptoms, this too appears to be improving \n\nAUSTEN - H203473 \nand more tolerable.  On his MRI there is disc \nprotrusion at L4-5 and L5-S1 that narrows the \nneural foramen.  This MRI was done prior to \nhis new symptoms, so it is limited in this \nregard.  His new symptoms do not extend \nbelow the knee so it is difficult to delineate \nwhich nerve root is symptomatic on clinical \nexam.  However, at this time, I encouraged him \nto continue with the nonsurgical treatments as \nhe has improved and surgery would add \nsignificant long term risk given his age.  I \nrecommend he try to get a selective right L4-5 \nforaminal injection to see his this helps more \nwith his residual symptoms. \n \n On June 2, 2020, the claimant underwent an additional MRI, which \nrevealed:  \n \nL1-L2: There is a diffuse disc bulge asymmetric \nto the right. There is no central canal stenosis. \nThere is no facet osteoarthritis. There is mild \nright neural foraminal stenosis. \n. . .  \nL4-L5: There is diffuse disc bulge. There is no \ncentral canal stenosis. There is moderate \nbilateral facet osteoarthritis.  There is mild-to-\nmoderate left neural foraminal stenosis. \n \nL5-S1: There is diffuse disc bulge. There is no \ncentral canal stenosis. There is mild bilateral \nfacet osteoarthritis. There is moderate bilateral \nneural foraminal stenosis.  The disc bulge also \nminimally impinges on the bilateral S1 nerve \nroots. \n \nImpression: 1. Degenerative disc and joint \ndisease with varying degrees of neural \nforaminal stenosis as described above.  Disc \nbulge at L5-S1 minimally impinges on the \nbilateral S1 nerve roots.  (Resp. Ex. 1, Pp. 174-\n175).  \n \n\nAUSTEN - H203473 \nAfter continuing treatment, the claimant obtained a third MRI on June \n14, 2021, which showed: \nThere is degenerative disc signal throughout \nthe lumbar spine . . . There is multilevel \ndiscogenic and facet degenerative changes \nthat will be discussed on a level by level basis: \n. . .  \n \nL1-L2: No central canal or neural foraminal \nnarrowing. \n. . .  \n \nL4-L5: Mild diffuse disc bulge and early facet \nhypertrophy resulting in mild effacement of the \nthecal sac and mild bilateral neural foraminal \nnarrowing. \n \nL5-S1: Minimal diffuse disc bulge and mild \nfacet hypertrophy resulting in mild effacement \nof the intrathecal sac, moderate right neural \nforaminal narrowing, and mild left \nneuroforaminal narrowing. \n \n \nImpression: \n \n1. Mild  degenerative  changes  of  the  lumbar \nspine worst in the lower lumbar spine. At L5-\nS1,  there  is  minimal  diffuse  disc  bulge  and \nmild   facet   hypertrophy   resulting   in   mild \neffacement   of   the   anterior   thecal   sac, \nmoderate  right  neural  foraminal  narrowing, \nand mild left neuroforaminal narrowing. \n \n2. Mild degenerative disc signal involving all 5 \nintervertebral  discs  of  the  lumbar  spine. \n(Reps. Ex. 1, P. 234). \n \nThe claimant underwent a fourth and final MRI on August 15, 2022, \nwhich showed “[m]ild multilevel spondylosis, as above.  No high-grade \n\nAUSTEN - H203473 \ncanal stenosis at any level” (Resp. Ex. 1, P. 280).  This is noted to being \nsimilar to the claimant’s September 2019 MRI results.  (Resp. Ex. 1, P. \n279). \nThroughout his treatment, two doctors – Dr. Kenneth Tonyman and \nDr. James Blankenship – offered the claimant very invasive surgeries to \nrelieve his symptoms.  Neither appear to indicate the relationship between \nthe claimant’s L4-5/L5-S1 complaints and his work-related injury. \nThe respondents obtained an additional opinion from Dr. Owen Kelly, \na board-certified orthopedic surgeon, regarding the Dr. Blankenship’s \ncontention that an anterior arthrodesis at L4-5/L5-S1 is reasonable and \nnecessary. Dr. Kelly opined that: \nL1-L2: \nMr. Austen’s complaint was localized to the L1-\nL2 level with a documented lateral disc \nherniation affecting L1.  He underwent \ntreatment and management at that level \nincluding selective nerve root blocks.  His \nfindings including the groin pain are consistent \nwith that dermatome distribution.  There did not \nappear to be right hip pathology noted to \nexplain his symptoms.  The L1-L2 pathology \n(lateral disc herniation) appeared to be work \nrelated. \n \nL4-S1: \nMr. Austen has objective findings of \ndegenerative disc disease/ multilevel \nspondylosis at L4-S1 which includes disc \nnarrowing/ desiccation, hypertrophy and \nneuroforaminal narrowing.  These findings are \nconsistent with degeneration not an isolated \nevent. The medical documentation, physical \n\nAUSTEN - H203473 \nexam findings and diagnosis isolate the injury \nat the L1-L2 segment.  The L4-S1 findings do \nnot appear to be related to injury. \n \nTREATMENT: \nThe L1-L2 treatment which included medicinal \ntreatment, injections/ blocks, and the \npreviously mentioned surgical intervention at \nthat level are related. \n \nAlthough there is documented pathology at L4-\nS1, the treatment would be related to the \ndegenerative disc disease. This would include \nthe medicinal treatment, therapy, injections, \nand the arthrodesis/ fusion at L4-S1. This is \nsupported by the provided medical \ndocumentation at Northwest Arkansas \nNeurosurgery clinic and including the MRI \nimaging.  (Resp. Ex. 1., Pp. 295-300). \n \nThe sole question here is whether the claimant is entitled to \nadditional medical treatment related to his compensable low back injury. \nArk. Code Ann. § 11-9-508(a) (Repl. 2012) requires an employer to provide \nan employee with medical and surgical treatment \"as may be reasonably \nnecessary in connection with the injury received by the employee.\"   The \nclaimant has the burden of proving by a preponderance of the evidence that \nthe additional treatment is reasonable and necessary.  Nichols v. Omaha \nSch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010).  \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \n\nAUSTEN - H203473 \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013). \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  However, the Commission has the authority to accept \nor reject medical opinions.  Williams v. Ark Dept. of Community Corrections, \n2016 Ark. App. 427, 502 S.W. 3d 530 (2016).   Furthermore, it is the \nCommission's duty to use its experience and expertise in translating the \ntestimony of medical experts into findings of fact and to draw inferences \nwhen testimony is open to more than a single interpretation.  Id. \n        In the present case, the ALJ disregards the opinions of Dr. Knox, Dr. \nCamp, Dr. Evans, Dr. Boris, and Dr. Kelly in finding in favor of the claimant. \nIn doing so, the ALJ states: \nFrom the records and the testimony, I am \nsatisfied that claimant injured his back at L4-S1 \nin July 2019. It is a bit puzzling how the four \nMRIs claimant has undergone have shown \ndifferent results at his L1-L2 level.  That is, \nhowever, largely irrelevant to the issue of the \nreasonableness of Dr. Blankenship’s \nrecommendations, which is for surgery at the \nL4-S1 level.  Claimant was understandably \n\nAUSTEN - H203473 \nreluctant to undergo a major surgery such as \nhas been suggested to him but has reached \nthe point that it seems to be his only option. \n(Op., P. 10). \n \nThe four MRIs the claimant has undergone all result in the \nconclusion that the claimant’s L4-S1 symptoms are degenerative in nature \nand therefore not work related.  \nThroughout the claimant’s records, there are repeated objective \nfindings of pathology at L1-L2, namely an “extreme lateral disc herniation at \nL1-2 on the right,” which had largely resolved by December 2019.  (Resp. \nEx. 1, P. 47; Cl. Ex. 1, P. 3).  Each MRI the claimant has undergone that \nindicates any findings of a diffuse disc bulge between L4-S1 describes them \nas “mild” or “minimal.”  (Resp. Ex. 1, P. 234).  The “[d]isc bulge at L5-S1 \nminimally impinges on the bilateral S1 nerve roots.”  (Resp. Ex. 1, P. 174).  \nThere are no objective findings to indicate that this diffuse disc bulge \nis the source of the claimant’s pain.  In fact, by the claimant’s own reports, \nnerve blocks at L1-L2 consistently relieved the claimant’s pain between \n75% and 80%.  (Resp. Ex. 1, Pp. 52, 62).  The primary concern throughout \nthe claimant’s treatment was the disc bulge at L1-L2 because no \npractitioner believed L4-S1 to be the source of the claimant’s work-related \npain until the claimant treated with Dr. Blankenship in 2022. The only doctor \nsuggesting that the claimant’s L4-S1 issues are related to his 2019 injury is \nalso the sole doctor seeking to perform surgery—Dr. Blankenship. It is \n\nAUSTEN - H203473 \nunreasonable to presume that only one doctor is correct when no fewer \nthan four others somehow missed the mark with the same level of access to \nthe claimant’s medical records and the claimant himself.  Dr. Kelly’s findings \nsummarize this point clearly: \nThe L1-L2 treatment which included medicinal \ntreatment, injections/ blocks, and the \npreviously mentioned surgical intervention at \nthat level are related. \n \nAlthough there is documented pathology at L4-\nS1, the treatment would be related to the \ndegenerative disc disease. This would include \nthe medicinal treatment, therapy, injections, \nand the arthrodesis/ fusion at L4-S1. This is \nsupported by the provided medical \ndocumentation at Northwest Arkansas \nNeurosurgery clinic and including the MRI \nimaging. (Resp. Ex. 1., P. 300). \n \nAccordingly, for the reasons set forth above, I must dissent. \n                    _______________________________ \n     MICHAEL R. MAYTON, Commissioner","textLength":18289,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203473 PATRICK AUSTEN, EMPLOYEE CLAIMANT LOWE’S HOME CENTERS LLC, EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., INSURANCE CARRIER RESPONDENT OPINION FILED APRIL 4, 2024 Upon review before the FULL COMMISSION i...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","strain","hernia","lumbar","knee","hip"],"fetchedAt":"2026-05-19T22:29:45.614Z"},{"id":"full_commission-G900188-2024-04-04","awccNumber":"G900188","decisionDate":"2024-04-04","decisionYear":2024,"opinionType":"full_commission","claimantName":"Clayton Mcwilliams","employerName":"Arkansas State Police","title":"McWILLIAMS VS. ARKANSAS STATE POLICE AWCC# G900188 APRIL 4, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/McWilliams_Clayton_G900188_20240404.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"McWilliams_Clayton_G900188_20240404.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G900188 \n \nCLAYTON McWILLIAMS, \nEMPLOYEE \n \nCLAIMANT \nARKANSAS STATE POLICE,  \nEMPLOYER \n \nRESPONDENT NO. 1 \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND  \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2 \n  \n      \nOPINION FILED APRIL 4, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE CHARLES H. \nMcLEMORE, JR., Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID L. PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nRespondent No. 1 appeals an administrative law judge’s opinion filed \nJuly 5, 2023.  The administrative law judge found that the claimant proved \nhe was permanently totally disabled.  After reviewing the entire record de \nnovo, the Full Commission reverses the administrative law judge’s finding \nthat the claimant proved he was permanently totally disabled.  The Full \nCommission finds that the claimant proved he sustained wage-loss \n\nMcWILLIAMS – G900188  2\n  \n \n \ndisability in the amount of 40% in excess of his 49% permanent anatomical \nimpairment.     \nI.  HISTORY \n Clayton Hendrix McWilliams, now age 37, testified that he had \nearned an undergraduate degree in criminal justice.  Mr. McWilliams \ntestified that he had volunteered in the area of diesel mechanics while he \nattended college.  The claimant subsequently became employed with the \nrespondents, Arkansas State Police.       \nThe parties stipulated that the employment relationship existed at all \npertinent times, including January 2, 2019.  The claimant testified on direct \nexamination: \nQ.  So let’s go to the date of your accident, January the 3\nrd\n of \n2019, and take us to that day.  As best you can recall, what \nwere the events that led to your accident? \nA.  Okay.  Sure.  So it was raining terribly that day and I left \nthe house, the trailer  house....They called me on my cell \nphone and said they had been trying to get ahold of me, and \ntold me about the wreck....There was [an] overturned log \ntruck that they didn’t have a trooper to work and so I started \nheading that way....I actually turned the entire vehicle \nsideways....and I went into the only tree in somebody’s \nyard.... \nQ.  You ended up getting off the highway and struck a tree? \nA.  Yes, sir....the last thing I remember is bracing for impact.   \n \n The parties stipulated that the claimant “sustained compensable \ninjuries to, among others, his head/brain, pelvis, right femur, right ankle, \n[and] left leg.” \n\nMcWILLIAMS – G900188  3\n  \n \n \n The record indicates that the claimant received inpatient physical \ntherapy at NeuroRestorative Timber Ridge beginning April 11, 2019.   \n The Social Security Administration informed the claimant on June 16, \n2020, “You are entitled to monthly disability benefits beginning July 2019.”   \n Dr. Robert L. Garrison noted on July 24, 2020: \nClayton returns today for followup.  He is now little over a year \nand a half out from pelvic ring injury that underwent repair and \na left segmental femur fracture that underwent open reduction \nwith intramedullary fixation.  He also sustained a right tibia \nfracture that underwent intramedullary nailing, which has gone \non to heal.   \nClayton reports he is starting to jog a little bit and would like to \nstart doing more activities such as weightlifting, things that he \nwas involved with before this accident.... \nASSESSMENT:   \n1.  Status post open reduction and internal fixation of pelvic \nring injury, clinically and radiographically healed. \n2.  Open reduction with intramedullary fixation of left \nsegmental femur fracture, clinically and radiographically \nhealed. \n3.  Radiographically and clinically healed right tibia fracture \nafter intramedullary nailing.   \nPLAN:  I told Clayton and his mom today I think he has met \nmaximum medical improvement from my standpoint.  From \nmy standpoint, impairment rating will need to be done by \nphysician dealing with impairment ratings.  I would defer to \nthem at this time.  He will follow up from my standpoint as \nneeded.  I feel from an orthopaedic standpoint when he can \ntolerate as far as activities, he can proceed doing.  In regard \nto his closed head injury, I will defer that for further evaluation \nas far as impairment rating is concerned.  Again, we will see \nhim back as needed.   \n \n The claimant participated in a Functional Capacity Evaluation at \nFunctional Testing Centers, Inc. on August 28, 2020:  “The results of this \n\nMcWILLIAMS – G900188  4\n  \n \n \nevaluation indicate that a reliable effort was put forth, with 52 of 52 \nconsistency measures within expected limits....Mr. McWilliams completed \nfunctional testing on this date with reliable results.  Overall, Mr. McWilliams \ndemonstrated the ability to perform work in the LIGHT classification of \nwork[.]”  The claimant was also assigned a 19% whole-person impairment \nrating on August 28, 2020.   \nDr. Barry D. Baskin provided an INDEPENDENT MEDICAL \nEVALUATION on October 7, 2020: \nMr. McWilliams is a 34-year-old gentleman from Magnolia, \nArkansas.  He worked as an Arkansas state police officer.  He \nwas involved in a single car accident 1/3/2019.  He was on a \ncall, it was raining heavily, and he hydroplaned and his police \ncruiser hit a tree.  He had extensive pelvic trauma with sacral \nfractures, pelvic fractures, comminuted fracture of the left \nfemur, right tibia, left hip, and ring fractures of the pelvis.  He \nunderwent ORIF of the pelvis, right SI joint screw.  He had a \ntraumatic brain injury with subarachnoid hemorrhage and \nsubdural hematoma.  He was stabilized at St. Michael’s \nMedical Center in Texarkana which was near the accident and \nthen he was transferred to UAMS where he was on a \nventilator x 2 weeks.  He spent 3 weeks at UAMS and then \nwent to Texas Institute of Rehabilitation and Research (TIRR) \nfor 2-1/2 months.  He then went to Timber Ridge \nNeuroRestorative Center in Benton.  He had complications of \nDVT in the left leg.  He is still being treated at Timber Ridge \nas an inpatient.  He is now going 3 days a week and home for \n4 days a week with a long weekend every other weekend.  He \nwas on Eliquis for a few months and now is off.  He has had \nneuropsych evaluation by Dr. Zolten.  He has had a functional \ncapacity evaluation ordered by Dr. Robert Garrison, his \ntrauma orthopaedic surgeon at UAMS.  This was done on \n8/28/2020, and I have that study.  He is now referred to me for \nongoing management.... \n\nMcWILLIAMS – G900188  5\n  \n \n \nReview of the medical records includes a functional capacity \nevaluation by Functional Testing Centers from 8/28/2020.  He \ngave good effort.  He was given a [rating] on his orthopaedic \ninjuries.  He was not rated on his traumatic brain injury.  His \northopaedic injuries were rated on referral from Dr. Garrison \nat 19% whole person impairment using the combined values \nchart on page 322.  I am not asked to see him for his \northopaedic injuries, but instead for his closed head injury.... \nRecords from Timber Ridge are reviewed.  Those records \nindicate that Mr. McWilliams was diagnosed with a closed \nhead injury with subdural and subarachnoid hemorrhage, \nhemorrhagic contusion of the left temporal lobe, closed pelvic \nring fracture, open displaced left femoral shaft fracture, open \nright tibia and fibula fractures, closed nondisplaced anterior \nprocess of the right calcaneous fracture, left chin laceration.  \nHe was treated primarily at UAMS with Dr. Robert \nGarrison....MRI of the brain revealed extensive shear injury \nthroughout the brain most pronounced at the corpus callosum.  \nHe had atrophy at the right cerebral peduncle, \nencephalomalacia was noted within the left side greater than \nright frontal lobes and right medial temporal lobe was noted.  \nInterval development of diffuse cerebral volume loss was also \nnoted.... \nIMPRESSION:  Mr. McWilliams is a nice gentleman referred \nto me by Heather Montgomery, RN, Case Manager with \nSystemedic.  He is a former state trooper involved in a severe \nmotor vehicle accident when he hydroplaned on a rainy night \n1/3/2019 and sustained multiple orthopaedic trauma and a \nclosed head injury.  He had complications of a DVT.  He has \nhad extensive rehabilitation at TIRR and subsequently at \nTimber Ridge.  He is still at Timber Ridge and they are \nweaning him back to an outpatient program.  He has had \nneuropsych evaluation by Dr. Zolten which I do not have....I \nwould like to get Dr. Zolten’s records.  This evaluation is an \nIME to get to know Mr. McWilliams with plans of me following \nhim long term for ongoing traumatic brain injury rehabilitation \nefforts....He has been disabled from his job as an Arkansas \nState Trooper.  I will see him back in follow up in about a \nmonth.   \n \n\nMcWILLIAMS – G900188  6\n  \n \n \n An occupational therapist noted in part on February 4, 2021, “Mr. \nMcWilliams is recommended for approval by physician to resume driving \nindependently.”  The claimant testified that he was physically able to \noperate a motor vehicle, at least for shorter distances.     \nDr. Baskin gave the following impression on March 9, 2021:  “Mr. \nMcWilliams is making good progress after a severe traumatic brain injury \n1/3/2019.  He is now two years post injury....We are going to get a \nvocational rehab evaluation to see what type of work he can do.  He is not \ngoing to be able to go back to work as a state police officer....I am \nrecommending a functional capacity evaluation to find out what Mr. \nMcWilliams can do with regards to return to work.”   \nThe claimant was discharged from Timber Ridge on or about March \n29, 2021.   \nThe claimant participated in another Functional Capacity Evaluation \non May 6, 2021:  “The results of this evaluation indicate that a reliable effort \nwas put forth, with 50 of 50 consistency measures within expected \nlimits....Mr. McWilliams completed functional testing on this date with \nreliable results.  Overall, Mr. McWilliams demonstrated the ability to \nperform work in the LIGHT classification of work[.]”   \n The parties stipulated that the claimant reached maximum medical \nimprovement on May 6, 2021. \n\nMcWILLIAMS – G900188  7\n  \n \n \n Heather Taylor, a Vocational Rehabilitation Consultant, provided a \nVOCATIONAL REHABILITATION INITIAL EVALUATION on May 24, 2021.  \nHeather Taylor reported in part, “before beginning the job search process \nwith Mr. McWilliams, it is my recommendation and opinion that he could \nbenefit from working as a volunteer on a transitional basis as a simulation of \nwork and as a gauge of whether or not he would eventually be capable of \nreturning to competitive employment.  Therefore, I will research the non-\nprofit agencies in his local area that accept volunteers and identify one that \nwould be appropriate for him to participate in.”  \n Heather Taylor opined on June 21, 2021, “Because of his brain injury \ndeficits, he will be unable to return to his previous skilled occupation and, in \nmy opinion, will not be able to return to any other skilled occupation.  If, or \nwhen, he is able to return to competitive employment, because of his brain \ninjury deficits, he will likely only be able to return to an unskilled or semi-\nskilled occupation.”    \n Dr. Baskin provided an IMPAIRMENT RATING on June 21, 2021: \nMr. McWilliams is back in for follow up for his traumatic brain \ninjury.  Overall he is doing fairly well.  He has had a functional \ncapacity evaluation with good reliability.  He still has left \nspasticity and hemiparesis.  He still has difficulty with spasm \nin his left side.  He had multiple fractures.  He has had \nneuropsych evaluation with Dr. Zolten that revealed extensive \n[shearing] injury throughout his brain.  He has had significant \ngross and fine motor defects primarily on the left side.  He has \nhad cognitive deficits.  He has had some impairment of visual \nperceptual skills....He has made significant \n\nMcWILLIAMS – G900188  8\n  \n \n \nimprovement....His recent FCE revealed reliable effort with \n50/50 [consistency] measures with the expected limits.  He \nwas able to work in a light physical demand category.  He is \nmedically retired from the Arkansas State Police Department \nas a trooper.  His functional capacity evaluation was noted to \nbe able to stand better on the right side than the left.... \nUsing the AMA Guides to the Evaluation of Permanent \nImpairment Mr. McWilliams has an impairment due to mental \nstatus changes and cognitive impairment of 25% to the whole \nperson using table 2 on page 142.  Due to his sacroiliac \nfractures and diastasis requiring screw fixation turning to table \n64 on page 85 he has a 3% whole person impairment.  Due to \nhis pelvic diastasis and bilateral pubic rami fracture and \nfixation turning to section 3.4 on page 131 he has a 5% whole \nperson impairment.  Due to his spastic hemiparesis and gait \nabnormality using the station and gait eval [table] 13 on page \n148 he has a 9% whole person impairment.  Due to [his] \nmultiple comminuted femur and hip fracture on the left with \ndecreased external rotation at only 30% he has a 2% whole \nperson impairment using table 40 on page 78.  Due to the lost \nrange of motion in the right ankle associated with his foot and \ncalcaneous fractures using table 42 on page 78 he has a 4% \nwhole person impairment rating.  Due to the lumbar disc \nprotrusions x 2 using table 75 on page 113 he has a 10% \nwhole person impairment rating....Using table 2 on page 280 \nhe has a 3% whole person impairment rating.  Turning to the \ncombined values chart of the 4\nth\n Edition AMA Guides on page \n322 Mr. McWilliams’s impairment ratings as outlined above \nare combined to equal a 47% whole person impairment.  He \nwas previously rated by Functional Testing Centers and not all \nthe ratings that he actually has were included.  Three hours \nwas spent on this evaluation looking through his medical \nrecords and applying them appropriately to the AMA Guides \n4\nth\n Edition in determining his whole person impairment rating \nas a result of his injuries.  Mr. McWilliams is effectively, totally \nand permanently disabled as a result of his motor vehicle \naccident.  Again, his impairment rating of the whole person is \ncalculated at 47%.... \n \n Dr. Baskin informed a case manager on July 14, 2021, “There is one \nitem that needs to be added to my rating that I overlooked.  I did not rate \n\nMcWILLIAMS – G900188  9\n  \n \n \nMr. McWilliams on the calcaneal fracture.  He had lost some range of \nmotion in the right ankle in plantar flexion and equal to 3% whole person \nimpairment and he lost some range of motion in inversion of the right ankle \nequal to 1% whole person....This 4% impairment rating would then be \ncombined with the 47% rating that I calculated to yield a permanent partial \nimpairment rating of 49% to the whole person....I believe the 49% rating is \nthe whole package at this point.”   \n The parties stipulated that Respondent No. 1 paid a 49% permanent \nanatomical impairment rating “which includes/takes into consideration all of \nthe claimant’s compensable injuries.”      \n Heather Taylor provided a VOCATIONAL REHABILITATION \nCLOSURE REPORT on November 3, 2021: \nMr. Clayton McWilliams began his volunteer work program on \n06/08/21.  As of this date, his volunteer schedule has \nremained as follows:  Tuesday and Thursday evenings from \n7:00 p.m. to 9:00 p.m. at Southern Arkansas University (SAU) \ncampus police department and on Wednesdays from 11:00 \na.m. to 1:00 p.m. at the local animal shelter, Columbia County \nAnimal Protection Society (CCAPS).... \nMy vocational recommendation at this time is for Mr. \nMcWilliams to continue to participate in his volunteer work \nprogram for an indefinite period of time.  Both places have \nstated he can continue to volunteer there for as long as he \nwants and, in my opinion, this will be very good for him and \nmay increase his overall independence. \nAfter working with Mr. McWilliams, communicating with both \nvolunteer places, and observing Mr. McWilliams doing his \nvolunteer work, it is my professional opinion that he is not able \nto return to competitive employment at this time....If his \nindependence increases overtime, he may eventually be able \n\nMcWILLIAMS – G900188  10\n  \n \n \nto return to competitive employment, but in my opinion, it \nwould only be to an unskilled occupation.   \nI have communicated my final opinion and my most recent \nonsite observation to Public Employee Claims Division.  At \nthis time, vocational rehabilitation file closure is \nrecommended.  I have also communicated with Mr. \nMcWilliams that I am closing his vocational rehabilitation file.   \nThank you for this referral.  It was a pleasure working with Mr. \nMcWilliams.   \n \n On January 11, 2022, the claimant was re-admitted to \nNeuroRestorative Timber Ridge “for further evaluation and treatment.”  The \nclaimant’s admission was described as an annual “tune up,” and he was \ndischarged on January 31, 2022.   \nA pre-hearing order was filed on February 16, 2022.  According to \nthe text of the pre-hearing order, the parties contended the following:  “The \nclaimant contends he is permanently and totally disabled (PTD) as a result \nof his multiple injuries or, alternatively, is entitled to substantial wage loss \ndisability benefits.  The claimant contends further the claimant contends \n(sic) the Commission should order Respondent No. 1 to pay a controverted \nattorney’s fee on any and all additional PPD benefits he may be awarded. \n First, Respondent No. 1 contends the claimant sustained \ncompensable injuries on January 3, 2019, in a motor vehicle accident \n(MVA), which they accepted as compensable and that they have paid and \ncontinue to pay all appropriate medical and indemnity benefits to date to \nwhich the claimant is entitled.  Respondent No. 1 states they have paid for, \n\nMcWILLIAMS – G900188  11\n  \n \n \namong other treatment and medications, etc., the claimant’s pelvic surgery \nperformed by Dr. Richard Garrison, for physical therapy (PT), in-patient \ntreatment, and for treatment with Dr. Barry Baskin for the claimant’s \ntraumatic head/brain injury. \n Second, Respondent No. 2 contends the claimant performed reliably \nin the Light classification of employment on a Functional Capacity \nEvaluation (FCE) on May 6, 2021, and also on August 28, 2020.  \nRespondent No. 1 continues to provide vocational rehabilitation for the \nclaimant, who performs volunteer work, and collects Social Security \ndisability (SSD) benefits, as well as a separate disability benefit from his \nemployer due to his disability.  Dr. Garrison, who had treated the claimant’s \npelvic injury, released the claimant at maximum medical improvement \n(MMI) on July 24, 2020.  In addition, Dr. Barry Baskin, who treated the \nclaimant for his head/traumatic brain injury, determined the claimant \nreached MMI for his traumatic brain injury injury/mental condition on March \n29, 2021.  Again, Respondent No. 1 notes Dr. Baskin assigned the claimant \nat 49% BAW permanent anatomical impairment rating, which they accepted \nin full which they began paying on or about May 7, 2021, and which they \ncontinue to pay. \n Third, Respondent No. 1 contends the claimant has the burden of \nproving he is in fact PTD or, alternatively, that he is entitled to PPD benefits \n\nMcWILLIAMS – G900188  12\n  \n \n \nin excess of his 49% impairment rating.  Further, Respondent No. 1 \ncontends they are entitled to a dollar-for-dollar offset pursuant to Ark. Code \nAnn. §11-9-411 (2022 Lexis Replacement) for any and all disability benefits \nthe claimant has received or is receiving from any and all third-party payors.  \nFinally, Respondent No. 1 reserves the right to raise additional contentions, \nor to modify those stated herein, pending the completion of discovery, and \nreserves any and all issues not addressed therein for future determination \nand/or litigation.   \n Respondent No. 2 defers to the outcome of the litigation on the \nissues of whether the claimant is PTD or, alternatively, is entitled to wage \nloss disability benefits in excess of his 49% BAW impairment rating.  \nFurthermore, Respondent No. 2 points out and reiterates it has not \ncontroverted any benefits in this claim and, therefore, may not be deemed \nliable for the payment of any of the claimant’s attorney’s fees.  Respondent \nNo. 2 waives its appearance at the aforementioned subject hearing.  \nFinally, Respondent No. 2 specifically reserves any and all other issues for \nfuture determination and/or litigation.” \n The parties agreed to litigate the following issues: \n1.  Whether the claimant is permanently and totally disabled \n(PTD) as a result of the January 3, 2019 compensable \ninjuries; or alternatively, whether he is entitled to wage loss \ndisability benefits in excess of his forty-nine (49%) body-as-a-\nwhole (BAW) impairment rating. \n\nMcWILLIAMS – G900188  13\n  \n \n \n2.  Whether the claimant’s attorney is entitled to a \ncontroverted fee on these facts. \n3.  The parties specifically reserve any and all other issues for \nfuture litigation and/or determination.   \n \n Heather Taylor reported in part on March 21, 2022: \nMy vocational rehabilitation file was closed on 11/03/21, with \nmy overall vocational opinion being that Mr. Clayton \nMcWilliams still needed frequent to constant supervision even \nfor his volunteer work situation.  But with additional time, if his \nindependence increased overtime, he may eventually be able \nto return to competitive employment in an unskilled/semi-\nskilled job. \nOn 02/23/22, Mr. McWilliams’ attorney requested a re-\nassessment of Mr. McWilliams’ vocational/return-to-work \noptions.  Therefore, Verlene Williams with Public Employee \nClaims Division authorized me to re-open this case for a \nfurther review/assessment of his employability. \nFor purposes of vocational re-assessment, I met with Mr. \nMcWilliams again on 03/16/22, talked with his former \nvolunteer supervisor at Southern Arkansas University (SAU) \nwhere he was doing volunteer work, talked with his mother, \nand reviewed all Timber Ridge reports from his recent twenty-\nday stay for therapies in January 2022.  Timber Ridge noted \ncontinued cognitive deficits and ongoing issues.  I discovered \nthat Mr. McWilliams abruptly stopped doing his volunteer work \nat SAU at the beginning of November 2021, with no timely \nnotice to his direct supervisor and has not been doing any \nvolunteer work since that date.... \nThis information has been conveyed to Public Employee \nClaims Division and they have since requested I keep this \ncase open for a while longer to assist Mr. McWilliams in re-\nestablishing a volunteer work situation.... \n \n Heather Taylor reported on April 25, 2022, “In late March 2022, he \nbegan volunteering at the Magnolia Senior Center two days per week....My \nmain recommendation at this time is to continue to monitor him participating \nin this newly re-established volunteer work program for a few months and \n\nMcWILLIAMS – G900188  14\n  \n \n \nthen, once again, re-assess his progress and level of independence in a \nvolunteer situation and make an assessment/determination if he is ready to \ntry and return to the workforce.  I have notified Mr. McWilliams and Rene, \nthe senior center director, of my leaving Systemedic and Public Employee \nClaims Division has also been notified.  In the coming weeks this case will \nbe transitioned to a new vocational rehabilitation staff member at \nSystemedic to continue to provide him with vocational rehabilitation \nservices.”   \nThe claimant began meeting with another Vocational Rehabilitation \nConsultant, Keondra Hampton, on or about May 31, 2022.  Ms. Hampton \nrecommended, “Overall, Mr. McWilliams is doing very well in his volunteer \nexperience.  In my professional opinion, I am not ruling out the possibility of \ncompetitive employment in an unskilled/semiskilled job.  My \nrecommendation at this time is to continue to monitor his participation in his \nvolunteering experience with Magnolia Senior Center.”    \n Keondra Hampton corresponded with the claimant on July 25, 2022: \nPer our telephone conversation, I have scheduled a meeting \nwith representatives from TEEM Academy and your attorney, \nGreg Giles, to discuss the details of the supported \nemployment program with TEEM.  Public Employment Claims \nDivision has approved your participation to move forward with \nsupported employment services.  I reserved a meeting space \nat the Columbia County Library at 2057 N. Jackson, Magnolia, \nArkansas.  Our meeting is scheduled for Thursday, August \n4, 2022, at 1:00 p.m.   \n\nMcWILLIAMS – G900188  15\n  \n \n \nYour attorney and the TEEM Academy Program Director, \nRobert Pierce, will attend the meeting virtually via zoom \nconference.  Please feel free to invite your parents to attend \nthis meeting as well.  If all parties agree to your participation, \nwe will proceed with completing your referral forms for TEEM \nAcademy.... \n \n The record includes a Narrative Report from TEEM Academy dated \nAugust 18, 2022: \nClayton is able to perform everything on his own inside the \nhome and doesn’t need any assistance.  He is able to cook, \nclean and take care of himself.  He does walk with a cane and \nis considered a fall risk.  He has balance issues. \nIf sitting he would need cushion and good back support.  He \nwould prefer not to have a desk job.  He is able to walk \nwithout the cane but prefers not to work in places that might \nrequire quick reactions.... \nClayton drives himself.  He would prefer to work in Magnolia, \nEl Dorado, Camden or in Stamps and Lewisville.  (Lafayette \nCounty).... \nClayton is most comfortable with medium paced jobs.  He \nrelies on a lot [of] post it notes and reminders.  Routine, \npredictable activities are best.... \nHe is interested in looking into surveillance type work at \nWalmart or perhaps a door greeter.  Possibly working with the \npolice department like filing, looking over reports, etc.  \nSomething that is not too strenuous.... \nClayton gets up and eats breakfast around 6, then goes to the \ngym every morning for about 30 minutes or so.  Then he goes \nback home and checks the mailbox.  He enjoys driving but \ndoes not want to be a truck driver.  He also [likes] to travel \nwith his family. \nSummary and Recommendations:   \nClayton Williams has lots of transferrable skills and some \npositive employable characteristics, such as willingness to try \nnew things, friendliness, punctuality, and strong motivation to \nwork.  Clayton has a clean criminal record and has reliable \ntransportation.  He has a preference to part-time work and is \nopen to several positions but is particularly interested in \nworking within the police force in a low stress capacity or as a \n\nMcWILLIAMS – G900188  16\n  \n \n \ngreeter at a store.  Clayton would excel in a low stress \nenvironment where he can work with [any amount of] people, \nbut not super loud people where he can be easily startled.  \nClayton is capable of working independently once he is taught \nhow to do each task.  TEEM recommends a position with any \namount of interaction with others.... \nTEEM is pleased to share that we will enroll Clayton \nMcWilliams into our on-line integrated employment service \nthat will expedite job leads and job searching utilizing a \ncomprehensive infrastructure.  This system includes:  \nIndeed.com, Zip Recruiter.com, and the LWC workforce job \nboard.  These tools will increase the speed of finding, \napplying, and interviewing for appropriate positions.   \n \n The Narrative Report indicated that TEEM would investigate the \npositions “1.  Arkansas State Police – filing, records” and “2.  Walmart – \nGreeter.” \n The claimant also continued to meet with Keondra Hampton, the \nVocational Rehabilitation Consultant.  Ms. Hampton reported that the \nclaimant had applied for several employment positions but had not been \nhired.          \nA hearing was held on April 6, 2023.  The claimant testified on direct \nexamination: \n Q.  Have you been able to return to work? \nA.  No, sir, I have not.  I’ve wanted to but I have not....I’ve \nwent and interviewed at several places and the volunteer jobs \nhave really stuck out.  Like, I first started out at SAU Police \nDepartment, which is just like a quarter mile from my parents’ \nhouse where I was living, and helped those guys twice a \nweek, basically just turning off lights around that \ncampus....Where I’m currently at now, I volunteer as well.   \nQ.  And where is that? \nA.  That’s at the Magnolia Senior Center.... \n\nMcWILLIAMS – G900188  17\n  \n \n \nQ.  Did you submit job applications and try and locate jobs? \nA.  Yes, sir, I did.... \nQ.  And were you successful in getting some job interviews? \nA.  I was successful in getting interviews.  Yes, sir. \nQ.  How many interviews would you say that you had? \nA.  I would say two.   \nQ.  And were you successful in gaining any offers of \nemployment? \nA.  Well, I kinda felt like – I don’t know about gaining any \noffers.  No, sir, I was not.... \nQ.  At this point, as you sit here today, have you had a job \noffer? \nA.  No, sir.... \nQ.  After doing the volunteer work, and seeing where you are, \nand being out there in the volunteer world, what are your \nthoughts at this point in truly being able to return to work on \nan eight-hour-a-day, five-day-a-week basis within a structured \nwork day? \nA.  For that – to have that capability, that’s – no, sir, there’s no \nway. \nQ.  Why do you say that? \nA.  Because I don’t think I could come and stay coherent for \nthe full eight hours.   \nQ.  When you say coherent, what do you mean? \nA.  As far as doing tasks, and I’d have to walk around with a \npad in my hand and make out a task of everything I need to \ndo, or a list of tasks and put a check beside each one as I get \n‘em done.... \nQ.  If you were given the opportunity to do those volunteer \njobs eight hours a day, five days a week, do you think that you \ncould do that? \nA.  No, sir, I don’t.   \n \n The respondents’ attorney cross-examined the claimant: \nQ.  So you think part-time you could do some work or you \ndon’t think you’re able to do any work? \nA.  I don’t think I’m able to do any work.   \n \n Keondra Hampton reported on June 5, 2023: \n\nMcWILLIAMS – G900188  18\n  \n \n \nMr. Clayton McWilliams remains within the first milestone of \nhis supportive employment plan with TEEM Academy.  During \nthis reporting period, Mr. McWilliams was assigned a new job \ncoach to assist with job development and placement, \nhowever, his newly assigned job coach was terminated from \nTEEM Academy within this reporting period.  Mr. McWilliams \nremains working at his volunteer experience with Magnolia \nSenior Center, three days a week.  Mr. McWilliams remained \ncooperative with me throughout this reporting period and is \neager for job placement.... \nMy recommendation for Mr. McWilliams is to continue with \neach milestone within the supported employment program for \non-the-job supports with Mr. Pierce until a new job coach is \nassigned.... \n \n Robert Pierce, TEEM Academy’s Director of Employment Services, \ncorresponded with Public Employee Claims Division on June 21, 2023: \nThis letter contains Mr. McWilliams’ request to pause his \nemployment search. \n“Hey Robert, can you take a break from my job hunt sir?  \nBecause it’s going to be 3-6 months before the judge who \nheard my case will make a decision and people are calling me \nabout applications that have been put in, honestly, I can’t \nhave a paying job right now or it will mess up my case \nbrother.”   \nPlease contact me if you have any questions. \n \n Keondra Hampton corresponded with the claimant’s attorney on July \n3, 2023: \nI contacted Mr. Clayton McWilliams on 06/30/23, and he \nstated he is no longer interested in receiving vocational \nrehabilitation at this time and has requested to close his \nvocational rehabilitation file with Systemedic.  Public \nEmployee Claims Division has been notified of Mr. \nMcWilliams’ request and has agreed to close the vocational \nrehabilitation file if continuation of services is not requested by \nyou.   \n\nMcWILLIAMS – G900188  19\n  \n \n \nCurrently Mr. McWilliams’ file remains open.  However, if \nvocational rehabilitation services are no longer needed and a \nrequest for continued services is not received by 07/24/23, I \nwill proceed to close the file.   \n \n Meanwhile, an administrative law judge filed an opinion on July 5, \n2023.  The administrative law judge found, among other things, “2.  The \nclaimant has met his burden of proof in demonstrating he is PTD within the \nmeaning of the Act and applicable case law.”  Respondent No. 1 filed a \ntimely notice of appeal. \n Keondra Hampton reported on July 25, 2023: \nAt the request of Public Employee Claims Division, vocational \nrehabilitation services were discontinued for Mr. Clayton \nMcWilliams on 07/25/23.  On 06/21/23, I received notification \nfrom Robert Pierce, Director of Employment Services with \nTEEM Academy regarding Mr. McWilliams’ request to pause \nhis employment search.  I contacted Mr. McWilliams on \n06/30/23, and he stated he is no longer interested in receiving \nvocational rehabilitation and requested to close his vocational \nrehabilitation file with Systemedic.... \nA letter of notification for the request of case closure was sent \nto Mr. McWilliams’ attorney, Greg Giles, on 07/03/23.  The \nletter indicated a request of continuation of vocational \nrehabilitation services was due by 07/24/23, in order to keep \nthe vocational rehabilitation file open.  Due to not receiving a \nrequest from Mr. Giles or Mr. McWilliams to keep the \nvocational rehabilitation file open, my file is now closed.  Mr. \nMcWilliams has been notified by letter of vocational \nrehabilitation file closure. \nIt was a pleasure working with Mr. McWilliams.  Thank you for \nthis referral.   \n \n On August 3, 2023, Respondent No. 1 filed a MOTION TO \nINTRODUCE NEWLY DISCOVERED EVIDENCE.  The moving party \n\nMcWILLIAMS – G900188  20\n  \n \n \nstated, among other things, “f)  That the Respondent No. 1 has, subsequent \nto the hearing, received additional reports from Ms. Keondra Hampton and \nthe claimant’s job coach at TEEM Academy regarding the claimant’s efforts \nto return to work, including June 5, 2023 progress report, June 21, 2023 \nletter, and July 25, 2023 closure[.]...Respondent prays that the \naforementioned newly discovered evidence be introduced into the record on \nthis claim or that further hearing for the purpose of introducing additional \nevidence be granted pursuant to Ark. Code Ann. §11-9-705(c)(1)(C).”  The \nFull Commission unanimously granted the respondents’ motion in an \nopinion filed September 20, 2023.  The Full Commission entered into the \nrecord the aforementioned documents authored June 5, 2023, June 21, \n2023, July 3, 2023, and July 25, 2023.   \nII.  ADJUDICATION    \n The wage-loss factor is the extent to which a compensable injury has \naffected the claimant’s ability to earn a livelihood.  Cross v. Crawford \nCounty Mem. Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996).  In \nconsidering claims for permanent partial disability benefits exceeding the \nemployee’s percentage of permanent physical impairment, the Commission \nmay take into account, in addition to the percentage of permanent physical \nimpairment, such factors as the employee’s age, education, work \n\nMcWILLIAMS – G900188  21\n  \n \n \nexperience, and other matters reasonably expected to affect his future \nearning capacity.  Ark. Code Ann. §11-9-522(b)(1)(Repl. 2012). \n Ark. Code Ann. §11-9-519(Repl. 2012) provides, in pertinent part: \n(e)(1)  “Permanent total disability” means inability, because of \ncompensable injury or occupational disease, to earn any \nmeaningful wages in the same or other employment.   \n(2)  The burden of proof shall be on the employee to prove \ninability to earn any meaningful wage in the same or other \nemployment.   \n \n An administrative law judge found in the present matter, “2.  The \nclaimant has met his burden of proof in demonstrating he is PTD within the \nmeaning of the Act and applicable case law.”  The Full Commission does \nnot affirm the administrative law judge’s finding that the claimant proved he \nwas permanently totally disabled.  The claimant is only age 37 and is a \ncollege graduate.  The claimant sustained a traumatic compensable injury \nwhile employed with the respondents, Arkansas State Police, on or about \nJanuary 3, 2019.  The parties stipulated that as a result of his compensable \naccident the claimant sustained a traumatic brain injury as well as injuries to \nhis pelvis, right femur, and left leg.  However, Dr. Garrison noted in July \n2020 that the claimant was physically active.  Dr. Garrison noted that the \nclaimant was able to participate in activities such as running and \nweightlifting.  A Functional Capacity Evaluation in August 2020 indicated \nthat the claimant was able to perform at least light-duty work.   \n\nMcWILLIAMS – G900188  22\n  \n \n \n Dr. Baskin began evaluating the claimant in October 2020.  Dr. \nBaskin opined that the claimant was physically unable to return to his \nprevious occupation of Arkansas State Trooper.  However, an occupational \ntherapist reported in February 2021 that the claimant was able to drive a \nmotor vehicle.  The claimant’s mother, Kay McWilliams, testified that the \nclaimant was physically able to operate a motor vehicle and travel relatively \nlong distances.  It was concluded following another Functional Capacity \nEvaluation on May 6, 2021 that the claimant could perform at least light \nwork.  The parties stipulated that the claimant reached maximum medical \nimprovement on May 6, 2021.   \n Heather Taylor provided Vocational Rehabilitation services to the \nclaimant beginning May 24, 2021.  On July 24, 2021, Dr. Baskin concluded \nthat the claimant had sustained permanent anatomical impairment in the \namount of 49%.  The parties stipulated that the respondents accepted and \npaid the 49% rating.  The record indicates that the claimant was physically \nable to perform part-time volunteer services in venues such as Southern \nArkansas University and the Magnolia Senior Center.  Keondra Hampton, a \nVocational Rehabilitation Consultant, stated on May 31, 2022, \"In my \nprofessional opinion, I am not ruling out the possibility of competitive \nemployment in an unskilled/semiskilled job [emphasis supplied].”  Ms. \nHampton arranged for the claimant to consult with a Vocational Placement \n\nMcWILLIAMS – G900188  23\n  \n \n \nservice, TEEM Academy, beginning August 4, 2022.  It was noted at TEEM \nAcademy on August 18, 2022 that the claimant was struggling with some \nphysical limitations.  However, the claimant was able to perform activities \nsuch as cooking and cleaning and was able to perform “medium paced \njobs.”  The evaluator at TEEM Academy reported that employment \npositions could be available such as record-keeping with the Arkansas \nState Police or retail employment with Walmart.  The claimant testified at a \nhearing held April 6, 2023 that he believed himself unable to return to any \ntype of work.   \n Following the hearing held April 6, 2023, the respondents introduced \ninto the record the report of a letter to the claimant from Robert Pierce, \nDirector of Employment Services at TEEM Academy.  The claimant queried \nMr. Pierce, “Hey Robert can you take a break from my job hunt sir?  \nBecause it’s going to be 3-6 months before the judge who heard my case \nwill make a decision and people are calling me about applications that have \nbeen put in, honestly, I can’t have a paying job right now or it will mess up \nmy case brother [emphasis supplied].”  In addition, Keondra Hampton \nreported on July 25, 2023, “I contacted Mr. McWilliams on 06/30/23, and he \nstated he is no longer interested in receiving vocational rehabilitation \n[emphasis supplied].\"    \n\nMcWILLIAMS – G900188  24\n  \n \n \nIn workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  The Full \nCommission has the duty to adjudicate the case de novo and we are not \nbound by the characterization of evidence adopted by an administrative law \njudge.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 \n(1990).   \nIn the present matter, the respondents do not contend that the \nclaimant is disqualified from receiving additional compensation in \naccordance with Ark. Code Ann. §11-9-505(b)(3)(Repl. 2012).  \nNevertheless, the claimant’s demonstrated lack of interest in returning to \ngainful employment within his permanent physical restrictions impedes an \nassessment of his loss of earning capacity and casts doubt on the \nclaimant’s contention that he is permanently and totally disabled.  Emerson \nElectric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).  See also Oller \nv. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).  \nWith regard to the claimant’s contention that he is physically unable to \nreturn to any gainful employment within his permanent physical restrictions, \n\nMcWILLIAMS – G900188  25\n  \n \n \nthe claimant has not been an entirely credible witness.  The claimant’s \ncommunication with Robert Pierce of TEEM Academy and Keondra \nHampton, the vocational rehabilitation consultant, demonstrate a marked \nlack of motivation to return to appropriate gainful employment.       \nThe Full Commission therefore finds that the claimant did not prove \nhe was permanently and totally disabled.  The Full Commission finds that \nthe claimant sustained wage-loss disability in the amount of 40% in excess \nof the 49% permanent anatomical impairment accepted and paid by the \nrespondents.  The claimant is only 37 years old and is a college graduate.  \nThe claimant sustained a traumatic compensable injury on or about January \n3, 2019 which resulted in 49% permanent anatomical impairment.  The \nclaimant is physically unable to return to his previous occupation of \nArkansas State Trooper.  Nevertheless, the evidence demonstrates that \nthere are gainful employment opportunities available for the claimant within \nhis permanent physical restrictions.  Expert and credible vocational \nrehabilitation consulting has been provided to the claimant by Heather \nTaylor and Keondra Hampton, and additional assistance was provided \nthrough TEEM Academy.  However, again, the evidence demonstrates that \nthe claimant is not motivated to return to work.  As the Full Commission has \nstated supra, the claimant’s lack of interest in returning to appropriate \n\nMcWILLIAMS – G900188  26\n  \n \n \ngainful employment impedes an assessment of his loss of earning capacity.  \nGaston, supra. \nAfter reviewing the entire record de novo, therefore, the Full \nCommission finds that the claimant did not prove he was permanently and \ntotally disabled.  The Full Commission finds that the claimant sustained \nwage-loss disability in the amount of 40% in excess of the 49% permanent \nanatomical impairment accepted and paid by the respondents.  The \nclaimant proved that the compensable injury was the major cause of his \n49% permanent anatomical impairment and 40% wage-loss disability.  The \nrespondents are entitled to an appropriate offset in accordance with Ark. \nCode Ann. §11-9-411(Repl. 2012).  The claimant’s attorney is entitled to \nfees for legal services in accordance with Ark. Code Ann. §11-9-\n715(a)(Repl. 2012).  For prevailing in part on appeal, the claimant’s attorney \nis entitled to an additional fee of five hundred dollars ($500), pursuant to \nArk. Code Ann. §11-9-715(b)(Repl. 2012).   \nIT IS SO ORDERED.  \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n\nMcWILLIAMS – G900188  27\n  \n \n \n \nDISSENTING OPINION \n \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved he is entitled to forty percent (40%) wage-loss disability in \nexcess of his forty-nine percent (49%) permanent anatomical impairment. \nThe claimant is not entitled to wage-loss disability under our Rules \ndue to his wholesale refusal to engage in vocational rehabilitation without \nreasonable cause.  Prior to his hearing with the administrative law judge on \nApril 6, 2023, the claimant contacted his career counselor through TEEM \nAcademy asking to discontinue his job search for the explicit purpose of \nbolstering his permanent and total disability claim.  \nOur rules are clear that:   \nThe employee shall not be required to \nenter any program of vocational \nrehabilitation against his or her consent; \nhowever, no employee who waives \nrehabilitation or refuses to participate in \nor cooperate for reasonable cause with \neither an offered program of rehabilitation \nor job placement assistance shall be \nentitled to permanent partial disability \nbenefits in excess of the percentage of \npermanent physical impairment \nestablished by objective physical \nfindings.  \n \nArk. Code Ann. § 11-9-505(b)(3).  \n \nAn employer relying on this defense must show that the claimant \nrefused to participate in a program of vocational rehabilitation or job-\n\nMcWILLIAMS – G900188  28\n  \n \n \nplacement assistance or, through some other affirmative action, indicated \nan unwillingness to cooperate in those endeavors and that such refusal to \ncooperate was without any reasonable cause.  Tillery v. Alma Sch. Dist., \n2022 Ark. App. 425 (2022). \nFurther, in considering factors that may affect an employee's future \nearning capacity, the Commission considers the claimant's motivation to \nreturn to work, since a lack of interest or a negative attitude impedes the \nassessment of the claimant's loss of earning capacity.  Emerson Electric v. \nGaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).  The Commission may \nalso consider other permanent disability factors such as the claimant's \nage, education, work experience, medical evidence and other matters \nreasonably expected to affect the worker's future earning power.  City of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).  These \nfactors are considered in Beal v. Fairfield Bay Cnty. Club, Inc., 2011 Ark. \nApp. 136 (2011) where the Court of Appeals stated: \nBeal further testified that he had \nworked all of his life but that he \nhas not returned to work because \n\"they are not going to let him back \nout there, as no doctor is going to \npass him on a physical and drug \ntest and stuff.\" Beal is blind in his \nleft eye, but admitted to having \nglaucoma before his \ninjury. According to Beal he does \nnot feel that there are any jobs he \ncan perform and is now retired. \n\nMcWILLIAMS – G900188  29\n  \n \n \nThe Commission disagreed and \nconcluded that \"the evidence \nshows that [Beal] is clearly not \nmotivated to return to any form of \ngainful employment\" and noted \nthat Beal's lack of motivation is a \nvalid consideration in its denial of \nBeal's wage-loss disability \nclaim.  City of Fayetteville v. \nGuess, 10 Ark. App. 313, 663 \nS.W.2d 946 (1984). \n \nIn a 2010 case considering wage-loss, the Court of Appeals affirmed \nthe Commission’s decision to deny wage-loss to a claimant who was 25-\nyears-old and had not looked for any work outside of her previous job as a \ncake decorator or work within her restrictions.  Morrison v. Confectionately \nYours, Inc., 2010 Ark. App. 687 (2010). This claimant received a seven \npercent (7%) disability rating, but the Court noted that this claimant had not \nattempted to look for work within her restrictions and had low motivation to \nreturn to any work other than her previous job.  Id.  The Commission found \nthat the claimant developed skills as a cake decorator that would serve her \nwell in other lines of work.  Id. \n It is undisputed that the claimant underwent vocational rehabilitation \nwith Ms. Keondra Hampton of Systemedic throughout 2022 and 2023 who \nbelieved that the claimant was an excellent candidate to transition into \nemployment with supports in place.  (Resp. Ex. 2, P. 29).  Since his injury, \nthe claimant has written two books and has published and sold them \n\nMcWILLIAMS – G900188  30\n  \n \n \nthrough Amazon.  (Hrng. Tr., Pp. 58-60).  He attends speaking \nengagements where he presents the story of his accident and recovery.  \n(Hrng. Tr., Pp. 160-162, 164).  The claimant attends the gym and uses the \ntreadmill there regularly, walking backwards, forwards, and on an incline.  \n(Hrng. Tr., Pp. 72-73).  He cares for his two children, ages four (4) and eight \n(8) monthly and takes them on various outings alone and is able to drive \nhimself alone for up to three hours, and shops at the grocery store, where \nhe pushes a loaded cart without assistance.  (Hrng. Tr., Pp. 39-40, 52-53, \n88-89).  He is currently drawing retirement from his employer and Social \nSecurity disability benefits.  (Resp. Ex. 2, Pp. 7-11, 22-27). \n The claimant currently volunteers for Magnolia Senior Center where \nhis duties and tasks include “1) assisting with preparing meals for the \nseniors by pressing the seal on the lunch trays, 2) placing labels on the \nmeal trays, and 3) sorting meals to prepare for delivery.”  (Resp. Ex. 2, P. \n16).  During these volunteer shifts, the claimant “mingled with the seniors \nand recited the blessing for the meal,” and supervisors reported that the \nclaimant arrives on time and works well with staff and residents.  Id.  As the \nclaimant’s time with Magnolia Senior Center progressed, his duties did as \nwell and he ultimately assisted the kitchen manager with tasks such as \ninventory, organizing lunch deliveries, and labeling and storing canned \nitems.  (Resp. Ex. 2, Pp. 28, 31).  The claimant’s volunteer hours were \n\nMcWILLIAMS – G900188  31\n  \n \n \nextended by an additional day in August of 2022 and Systemedic began \nlooking for light duty part-time employment for the claimant through Teem \nAcademy.  (Resp. Ex. 2, Pp. 31-32). \n The claimant first met with Teem Academy on August 18, 2022, and \nreported that he “is able to perform everything on his own inside the home \nand doesn’t need assistance.  He is able to cook, clean and take care of \nhimself.”  (Resp. Ex. 2, P. 34).  The claimant “loves reading in depth books \nas opposed to magazines or short stories.  He can learn by reading \ninstructions.”  (Resp. Ex. 2, P. 35).  He has no trouble communicating his \nneeds or asking for help when needed.  Id.  Teem Academy found that the \nclaimant “has lots of transferrable skills and some positive employable \ncharacteristics, such as willingness to try new things, friendliness, \npunctuality, and strong motivation to work” and is capable of working \nindependently.  (Resp. Ex. 2, P. 37).  \n The ALJ opined the claimant is highly motivated and continues to \nmake every effort to find and return to some kind of gainful employment if at \nall possible and is “in this ALJ’s humble opinion, a courageous young man \nwho, despite his occasional bouts with situational depression, is eager and \nhighly motivated to attempt to beat the odds and find gainful employment.” \n(Op., P. 12).  However, despite the assistance with preparing his resume, \ncompleting applications, and preparing for interviews, the evidence \n\nMcWILLIAMS – G900188  32\n  \n \n \nindicates that the claimant has no interest in returning to the workforce. \nThrough his vocational rehabilitation program, the claimant was assigned a \ncareer counselor through TEEM Academy to assist with his job search.  On \nJune 21, 2023, the respondent carrier was notified that the claimant \nvoluntarily discontinued his employment search through TEEM Academy \nstating: \nHey Robert, can you take a break \nfrom my job hunt sir?  Because it’s \ngoing to be 3-6 months before the \njudge who heard my case will \nmake a decision and people are \ncalling me about applications that \nhave been put in, honestly, I can’t \nhave a paying job right now or it \nwill mess up my case brother.  \n(See attachment to Respondent \nNo. 1’s Motion to Introduce Newly \nDiscovered Evidence). \n \nOn June 30, 2023, Ms. Keondra Hampton contacted the claimant \nwho “stated he is no longer interested in receiving vocational rehabilitation \nat this time and has requested to close his vocational rehabilitation file.”  Id. \nThe claimant’s vocational rehabilitation file was closed on July 25, 2023.  Id.  \nNot only has the claimant refused to continue vocational \nrehabilitation, he has done so for the explicit purpose of benefiting his \nworkers’ compensation claim.  This alone renders the claimant ineligible for \nany disability beyond his impairment rating.  The claimant’s lack of \nmotivation and unwillingness to continue with vocational rehabilitation and \n\nMcWILLIAMS – G900188  33\n  \n \n \njob placement impedes the Commission’s ability to assess the full extent of \nthe claimant’s wage-earning capacity. \nThe claimant should not receive any wage loss disability when he \ninstructed his career counselor to take a break from his job hunt because in \nhis own words, “I can’t have a paying job right now or it will mess up my \ncase, brother.”  To rule otherwise allows claimants to waive rehabilitation or \nrefuse to participate in or cooperate with an offered program of \nrehabilitation or job placement without reasonable cause and still receive \nwage loss disability which is in direct conflict with Ark. Code Ann. § 11-9-\n505(b)(3). \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":53978,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G900188 CLAYTON McWILLIAMS, EMPLOYEE CLAIMANT ARKANSAS STATE POLICE, EMPLOYER RESPONDENT NO. 1 PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["ankle","fracture","back","hip","lumbar"],"fetchedAt":"2026-05-19T22:29:45.654Z"},{"id":"full_commission-H109437-2024-04-04","awccNumber":"H109437","decisionDate":"2024-04-04","decisionYear":2024,"opinionType":"full_commission","claimantName":"Lisa Pozner","employerName":"Uams","title":"POZNER VS. UAMS AWCC# H109437 APRIL 4, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Pozner_Lisa_H109437_20240404.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Pozner_Lisa_H109437_20240404.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H109437 \n \nLISA POZNER, \nEMPLOYEE \n \nCLAIMANT \nUAMS,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 4, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MARK A. PEOPLES, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n The respondents appeal and the claimant cross-appeals an \nadministrative law judge’s opinion filed September 6, 2023.  The \nadministrative law judge entered the following findings of fact and \nconclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2. The stipulations set forth above are reasonable and are hereby \naccepted. \n \n3. The Claimant is not entitled to permanent total disability      \nbenefits but is entitled to wage-loss disability in the amount of \n\nPOZNER - H109437  2\n  \n \n \n35% in addition to Claimant’s 7% permanent anatomical \nimpairment. \n \n4.  Claimant is entitled to controverted attorney fees.   \n \n After reviewing the entire record de novo, it is our opinion that the \nadministrative law judge’s decision is supported by a preponderance of the \nevidence, correctly applies the law, and should be affirmed.  Based on a \npreponderance of the evidence of record, we find that the administrative law \njudge’s findings of fact are correct and should be adopted by the Full \nCommission.   \n Therefore, we affirm and adopt the September 6, 2023 decision of \nthe administrative law judge, including all findings and conclusions therein, \nas the decision of the Full Commission on appeal and cross-appeal.  The \nclaimant’s attorney is entitled to fees for legal services in accordance with \nArk. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing in part on appeal \nto the Full Commission, the claimant’s attorney is entitled to an additional \nfee of five hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-\n715(b)(Repl. 2012). \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n\nPOZNER - H109437  3\n  \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority’s opinion finding that the \nclaimant has proven by a preponderance of the credible evidence that she \nis entitled to wage loss disability in the amount of 35% in addition to her 7% \nanatomical impairment rating.  \n The claimant suffered a compensable back injury when she hyper-\nextended her back away from an HIV positive patient after receiving an \naccidental needle stick.  (Hrng. Tr., P. 12).  Dr. Jarna Shah performed a \nkyphoplasty procedure on the claimant on November 2, 2021.  (Cl. Ex. 1, \nPp. 9, 11).  \nThe claimant obtained a Change of Physician order through the \nCommission and began treating with Dr. Ali Raja, who prescribed a back \nbrace.  (Hrng. Tr, P. 64).  Dr. Raja cannot state within a reasonable degree \nof medical certainty that the subsequent fractures found are a result of the \nclaimant’s initial injury.  (Resp. Ex. 1, Pp. 88-89).  The claimant currently \nhas no additional surgeries planned.  (Hrng. Tr, P. 63). \n On December 19, 2022, the claimant underwent a functional \ncapacity evaluation (FCE) and was assigned a seven percent (7%) whole-\nbody impairment rating and received a sedentary work restriction.  (See \n\nPOZNER - H109437  4\n  \n \n \nResp. Ex. 1, Pp. 94-113).  Respondents have accepted and are paying the \nimpairment rating.  \nThe claimant has undergone and refused vocational rehabilitation, \nrequested that her vocational rehabilitation file be closed and, to date, has \nnot returned to work.  (Resp. Ex. 2, Pp. 35-46). \n A hearing was held on August 22, 2022, and the claimant contended \nthat she is entitled to permanent total disability or, alternatively, wage-loss \ndisability in excess of her impairment rating.  An administrative law judge \n(ALJ) ruled that the claimant is not permanently and totally disabled, but \nthat she is entitled to thirty five percent (35%) wage-loss disability in excess \nof her impairment rating.  \nWhen a claimant has been assigned an anatomical impairment \nrating to the body as a whole, the Commission may increase the disability \nrating and find a claimant permanently disabled based on the wage-loss \nfactors.  Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 \n(2005).  The wage-loss factor is the extent to which a compensable injury \nhas affected the claimant's ability to earn a livelihood.  Enterprise Products \nCompany v. Leach, 2009 Ark. App. 148, 316 S.W.3d 253 (2009).  When \ndetermining wage-loss disability, the Commission may take into account, in \naddition to the percentage of permanent physical impairment, such factors \nas the employee’s age, education, work experience, and other matters \n\nPOZNER - H109437  5\n  \n \n \nreasonably expected to affect his or her future earning capacity.  Ark. Code \nAnn. § 11-9-522(b)(1); Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 \n(1961).  Other factors may include—but are not limited to—motivation to \nreturn to work, post-injury earnings, credibility, and demeanor.  Curry v. \nFranklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990).  \nOur courts also consider the claimant’s motivation to return to work \nsince a lack of interest or negative attitude in pursuing employment \nimpedes the assessment of the claimant's loss of earning capacity.  Logan \nCounty v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005).  \nThe Commission may use its own superior knowledge of industrial \ndemands, limitations, and requirements in conjunction with the evidence to \ndetermine wage-loss disability.  Taggart v. Mid Am. Packaging, 2009 Ark. \nApp. 335, 308 S.W.3d 643 (2009). \nThe  claimant  elected  to  discontinue  vocational  rehabilitation  and  job \nplacement  assistance  and  is,  therefore,  barred  from  receiving  wage-loss \nbenefits.  The key question in this matter is what, if any, impact the claimant’s \nrefusal to enter into vocational rehabilitation has on her claim for wage-loss \nbenefits.  Our rules are clear that: \nThe employee shall not be required \nto enter any program of vocational \nrehabilitation against his or her \nconsent; however, no employee \nwho waives rehabilitation or \nrefuses to participate in or \ncooperate for reasonable cause \n\nPOZNER - H109437  6\n  \n \n \nwith either an offered program of \nrehabilitation or job placement \nassistance shall be entitled to \npermanent partial disability benefits \nin excess of the percentage of \npermanent physical impairment \nestablished by objective physical \nfindings.  \n \nArk. Code Ann. § 11-9-505(b)(3).  \nAn employer relying on this defense must show that the claimant \nrefused to participate in a program of vocational rehabilitation or job-\nplacement assistance or, through some other affirmative action, indicated \nan unwillingness to cooperate in those endeavors and that such refusal to \ncooperate was without any reasonable cause.  Tillery v. Alma Sch. Dist., \n2022 Ark. App. 425 (2022). \nHere, the claimant was provided vocational rehabilitation counseling \non February 22, 2023.  After her initial evaluation, Keondra Hampton, the \nclaimant’s vocational rehabilitation consultant, issued an opinion on March \n2, 2023, concluding that “[b]ased on her past work history, education, skills, \nand functional abilities, it is my opinion [claimant] will be able to return to the \nworkforce in the future to a position that is consistent with her physical \nabilities and her skill set.” (Resp. Ex. 2, P. 35).  Ms. Hampton opined that \nthe claimant “is capable of working within the Sedentary category of \nphysical work demands,” and recommended services for drafting a resume, \nproviding interview skills training, seeking training for computer skills, \n\nPOZNER - H109437  7\n  \n \n \nassisting with online job applications, and completing job market research. \n(Resp. Ex. 2, P. 43).  \nMs. Hampton provided the claimant with nine remote-work positions \nby April 6, 2023, but alleging that she was “unable to complete the job \napplications on the computer due to her pain” and that she was “unable to \nwork at a computer for an eight-hour workday,” the claimant voluntarily \ndiscontinued vocational rehabilitation at that time.  (Resp. Ex. 2, Pp. 44-45). \nThe claimant provided various excuses for discontinuing vocational \nrehabilitation; however, none provided reasonable cause as required by our \nrules. First, the claimant contends that she informed Ms. Hampton that she \nwas applying for jobs on her own, informing her:  \n“I don’t think I can work,” because I \nhad already had a lot of rejection.  \n \nA lot of these jobs they said I was \noverqualified for.  They wanted \none year of nursing, two years of \nnursing, but I applied for them \nanyways.  I told her, “At this time, I \ncannot work.”  (Hrng. Tr., Pp. 68-\n69). \n \nThe claimant also asserts at many points that she simply cannot \nwork.  (See Hrng. Tr., P. 69).  This, of course, is contrary to the medical \nevidence, the claimant’s FCE, and Ms. Hampton’s findings.  There is no \nevidence, beyond the claimant’s own self-limiting behaviors, that she is \nunable to reliably work from her own home full-time.  \n\nPOZNER - H109437  8\n  \n \n \nThe claimant has been assigned a sedentary work restriction, and \nMs. Hampton believes that the claimant can return to work, providing her \nnumerous opportunities to do so.  It is clear that the claimant does not wish \nto work despite having the documented physical ability to do so.  She has \nrejected any offer of assistance working on a phone or computer despite \nadmittedly being able to work at home on her laptop.  (See Hrng. Tr, p. 52). \nThere are no plans for any surgery that would improve or change her \ncondition and the claimant acknowledges that she is at maximum \nimprovement.  (Hrng. Tr., Pp. 75-76).  These behaviors are a clear \nindication that the claimant has refused vocational rehabilitation without \ngood cause and is not entitled to wage-loss disability. \nAs stated above, in considering factors that may affect an \nemployee's future earning capacity, the Commission considers the \nclaimant's motivation to return to work, since a lack of interest or a negative \nattitude impedes the assessment of the claimant's loss of earning \ncapacity.  Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 \n(2001).  \nThe Commission may also consider other permanent disability \nfactors such as the claimant's age, education, work experience, medical \nevidence and other matters reasonably expected to affect the worker's \nfuture earning power.  City of Fayetteville v. Guess, 10 Ark. App. 313, 663 \n\nPOZNER - H109437  9\n  \n \n \nS.W.2d 946 (1984).  These factors are considered in Beal v. Fairfield Bay \nCnty. Club, Inc., 2011 Ark. App. 136 (2011) where the Court of Appeals \nstated: \nBeal further testified that he had \nworked all of his life but that he \nhas not returned to work because \n\"they are not going to let him back \nout there, as no doctor is going to \npass him on a physical and drug \ntest and stuff.\"  Beal is blind in his \nleft eye, but admitted to having \nglaucoma before his \ninjury.  According to Beal he does \nnot feel that there are any jobs he \ncan perform and is now retired. \nThe Commission disagreed and \nconcluded that \"the evidence \nshows that [Beal] is clearly not \nmotivated to return to any form of \ngainful employment\" and noted \nthat Beal's lack of motivation is a \nvalid consideration in its denial of \nBeal's wage-loss disability \nclaim.  City of Fayetteville v. \nGuess, 10 Ark. App. 313, 663 \nS.W.2d 946 (1984). \n \nIn a 2010 case considering wage-loss, the Court of Appeals affirmed \nthe Commission’s decision to deny wage-loss to a claimant who was 25-\nyears-old and had not looked for any work outside of her previous job as a \ncake decorator or work within her restrictions.  Morrison v. Confectionately \nYours, Inc., 2010 Ark. App. 687 (2010).  This claimant received a seven \npercent (7%) disability rating, but the Court noted that this claimant had not \nattempted to look for work within her restrictions and had low motivation to \nreturn to any work other than her previous job.  Id.  The Commission found \n\nPOZNER - H109437  10\n  \n \n \nthat the claimant developed skills as a cake decorator that would serve her \nwell in other lines of work.  Id. \nIn the present case, the claimant has a bachelor’s degree in English \nLiterature and Psychology; a Bachelor of Arts in Social Work; a Master of \nArts in Counseling Psychology; a Bachelor of Science in Nursing; and a \nMaster of Science in Nursing.  (Hrng. Tr., Pp. 34-38; Resp. Ex. 2, P. 39). \nThroughout her career, the claimant has been certified as a registered \nnurse, an advanced practice registered nurse, and an adult-gerontology \nprimary care nurse practitioner.  Id.  The claimant has been educated in \nCanada, Israel, and the United States and speaks some Hebrew, French, \nand Yiddish.  (Hrng. Tr., Pp. 36-40; Resp. Ex. 2, P. 39).  Her work history \nincludes work as a counselor, at one point owning her own practice; \nworking in a call-in crisis center; working as a nurse supervisor; and acting \nas a nursing contact tracer over the phone during COVID.  (Hrng. Tr., Pp. \n61, 67; Resp. Ex. 2, P. 40).  She has earned a significant income \nthroughout her career.  (Resp. Ex. 2, P. 70). \nAlthough the claimant contends that she is unable to find work, in \npart due to her medications, she has shown that she is capable of \nfunctioning without them.  (Hrng. Tr., P. 45, 80-84).  At the hearing, she \ntestified that she had not taken her medications that day, nor had she taken \nthem the day that she underwent her FCE and performed reliably.  (Hrng. \n\nPOZNER - H109437  11\n  \n \n \nTr., Pp. 56, 64-65; Resp. Ex. 1, P. 95).  It is clear that these medications are \nanother self-limiting excuse by the claimant. \nAs discussed above, the claimant is limited to sedentary work; \nhowever, work opportunities fitting within her qualifications and restrictions \nhas been offered to her and rejected.  The claimant has the education and \nskills necessary to continue her career in a range of professions, either over \nthe telephone or by computer, as she has done in the past, she simply \nchooses not to do so.  Under our rules, the standard requires that a \nclaimant show at least some motivation to return to the workforce in any \ncapacity to be entitled to wage loss disability and the claimant here has \nrefused to do so in any capacity. \nThe claimant’s refusal to participate in vocational rehabilitation and \njob placement assistance renders her ineligible for wage-loss benefits and, \nas a result, she is limited to seven percent (7%) anatomical impairment \nrating. \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":15211,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H109437 LISA POZNER, EMPLOYEE CLAIMANT UAMS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:45.678Z"},{"id":"full_commission-G808579-2024-04-04","awccNumber":"G808579","decisionDate":"2024-04-04","decisionYear":2024,"opinionType":"full_commission","claimantName":"Jurmicka Puckett","employerName":"Arkansas Dept. Of Corrections","title":"PUCKETT VS. ARKANSAS DEPT. OF CORRECTIONS AWCC# G808579 APRIL 4, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Puckett_Jurmicka_G808579_20240404.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Puckett_Jurmicka_G808579_20240404.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G808579 \nJURMICKA PUCKETT, EMPLOYEE     CLAIMANT \nARKANSAS DEPT. OF CORRECTIONS.,  \nEMPLOYER                          RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS  \nDIVISION, TPA                RESPONDENT \n \n \nOPINION FILED APRIL 4, 2024 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney, \nLittle Rock, Arkansas.  \nRespondents represented by the CHARLES H. McLEMORE, Attorney, Little \nRock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n The Claimant appeals and the respondents cross-appeal an  \nAdministrative Law Judge’s opinion filed October 4, 2023.  In said order, the \nAdministrative Law Judge made the following findings of fact and \nconclusions of law:  \n1. The Arkansas Workers' Compensation \nCommission has jurisdiction over this claim. \n \n\nPUCKETT – G808579 \n \n2. The Claimant is not entitled to additional \npermanent partial disability for RSD/CRPS.  \n \n3. The Claimant has not proven that she is \npermanently and totally disabled. \n \n4. The Claimant has not proven entitlement to \nadditional benefits under Ark. Code Ann. § 11-9-\n505(a)(1).  \n \n5. The Claimant is entitled to additional treatment \nassociated with the referral to UAMS ordered by \nDr. Walker for consideration of a Spinal Cord \nStimulator.  The Respondents, however, are not \nliable for the Claimant’s past treatment from Dr. \nScott.  \n \n6. No attorney’s fee is associated with these \nfindings.  \nWe have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s October 4, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809  (Repl. 2012).  \nFor prevailing on this appeal before the Full Commission, Claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \n\nPUCKETT – G808579 \n \nAnn. §11-9-715 (Repl. 2012).  For prevailing on appeal to the Full \nCommission, the Claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b) (Repl. \n2012). \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner    \n \n \n \nCommissioner Mayton concurs, in part, and dissents, in part. \n \nCONCURRING AND DISSENTING OPINION \n \nI respectfully concur, in part, and dissent, in part from the majority \nopinion.  Specifically, I concur that the claimant has not proven by a \npreponderance of the credible evidence that she is entitled to additional \npermanent partial disability for RSD/CRPS, that she has not met her burden \nof proving that she is permanently and totally disabled and that she has not \nproven entitlement to additional benefits under our Ark. Code Ann. § 11-9-\n505(a)(1).  However, I dissent from the finding that the claimant is entitled to \nadditional treatment by UAMS for consideration for a spinal cord stimulator, \nas she has failed to establish that such treatment is reasonable and \nnecessary. \n\nPUCKETT – G808579 \n \n The claimant suffered a compensable right-hand injury while working \nfor the respondent employer on December 26, 2018, when she fell, \ncatching herself with her right hand.  (Hrng. Tr., Pp. 20-21).  The claimant \nwas examined by a nurse practitioner who assessed a wrist sprain and \nmedian nerve injury at the wrist and hand level and entered a referral for \n\"Neurology*Any.”  (Resp. Ex. 1, P. 4).  \nThe claimant ultimately began treating with Dr. Brian Norton at \nArkansas Specialty Orthopaedics on January 11, 2018.  (Cl. Ex. 1, P. 17). \nDr. Norton ordered an MRI that revealed a ganglion cyst, which he believed \nto be related to the claimant’s work injury.  (Cl. Ex. 1, P. 18).  Dr. Norton \nremoved the cyst on April 29, 2019.  (Cl. Ex. 1, P. 25).  \nAt a follow-up visit, the claimant complained of continued pain, and \nDr. Norton ordered another MRI, which revealed no new issues.  (Cl. Ex. 1, \nPp. 78-87).  Dr. Norton placed the claimant at MMI and released her to \nreturn to work at full duty on September 10, 2019.  (Cl. Ex. 1, P. 86). \n On September 1, 2020, the claimant returned to Dr. Norton, who \nordered another MRI.  (Resp. Ex. 1, P. 24).  After a failed attempt at steroid \ninjections due to blood sugar issues, the claimant elected to proceed with a \nright wrist arthroscopy and partial synovectomy which took place on \nJanuary 4, 2021.  (Resp. Ex. 1, Pp. 29-35).  Dr. Norton performed a surgical \nrevision on May 12, 2021, without complications.  (Resp. Ex. 1, Pp. 50-54). \n\nPUCKETT – G808579 \n \n In August of 2021, the claimant began treating with Dr. Brent Walker, \na pain management specialist also with Arkansas Specialty Orthopaedics. \nDr. Walker assessed the claimant with complex regional pain syndrome \n(CRPS) and ordered a triple-phase bone scan.  (Cl. Ex. 1, Pp. 189-194). \nUpon reviewing the claimant’s August 2021 bone scan, the radiological \nimpression is listed as CRPS, and Dr. Walker began stellate ganglion \nblocks between August 24, 2021, and September 7, 2021.  (Resp. Ex. 1, \nPp. 59-75).  These were later paused due to blood sugar issues, although \nthe claimant did not report significant improvement after receiving these \ninjections.  Id. \n The claimant underwent a functional capacity examination in \nSeptember 2021 and was assigned a medium work restriction.  (Resp. Ex. \n1, Pp. 76-95).  She was ultimately assigned an eleven percent (11%) \nimpairment rating to her right wrist.  (Resp. Ex. 1, P. 101). \n After receiving her impairment rating, the claimant sought a second \nopinion from an additional orthopedic surgeon, Dr. D’Orsay Bryant, who in \nNovember of 2021 opined that “[t]he patient furnished me hundreds of \npages of her past medical record, which I have read over a dozen times. \nThe treatment rendered, by both Dr. Norton and Dr. Walker, is satisfactory \nand medically indicated.”  (Resp. Ex. 1, Pp. 102-104).  Dr. Bryant agreed \nwith Dr. Walker’s assessment of CRPS but stated that “there are simply no \n\nPUCKETT – G808579 \n \nfurther effective treatment recommendations that I can offer, for the \npatient’s right wrist complex regional pain syndrome.”  Id. \n The claimant underwent a nerve conduction study on June 21, 2022, \nand the findings were all within normal limits.  (Resp. Ex. 1, P. 117).  After \nreviewing these results, Dr. Norton ordered an additional triple-phase bone \nscan, which revealed negative results with “no scintigraphic evidence of \ncomplex regional pain syndrome.”  (Resp. Ex. 1, Pp. 127-128).  \nThe claimant later visited Dr. Walker on July 27, 2022, who opined \nthat the claimant’s condition had reached its chronic phase and referred the \nclaimant to UAMS for consideration of a spinal cord stimulator.  (Cl. Ex. 1., \nP. 225). \n Arkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires \nan employer to provide an employee with medical and surgical treatment \n\"as may be reasonably necessary in connection with the injury received by \nthe employee.\"  The claimant has the burden of proving by a \npreponderance of the evidence that the additional treatment is reasonable \nand necessary.  Nichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 \nS.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \n\nPUCKETT – G808579 \n \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy, and the respondent is only responsible for treatment \ncausally related to the compensable injury.  Walker v. United Cerebral \nPalsy of Ark., 2013 Ark. App. 153, 426 S.W.3d 539 (2013).  Treatments to \nreduce or alleviate symptoms resulting from a compensable injury, to \nmaintain the level of healing achieved, or to prevent further deterioration of \nthe damage produced by the compensable injury are considered \nreasonable medical services.  Foster v. Kann Enterprises, 2009 Ark. App. \n746, 350 S.W.2d 796 (2009). \nThe Commission has authority to accept or reject medical opinion \nand to determine its medical soundness and probative force.  Gant v. First \nStep, Inc., 2023 Ark. App. 393, 675 S.W.3d 445 (2023).  Furthermore, it is \nthe Commission's duty to use its experience and expertise in translating the \ntestimony of medical experts into findings of fact and to draw inferences \nwhen testimony is open to more than a single interpretation.  Id. \nThe ALJ’s determination that the claimant is entitled to an \nassessment for a spinal cord stimulator is based on a single opinion by Dr. \nBrent Walker, the claimant’s pain management specialist.  (See Resp. Ex. \n1, P. 140).  On July 27, 2022, Dr. Walker opined that the claimant’s \n“condition is existed for well over a year and a half.  I think she is most likely \nin the chronic phase of this condition.  I do not think any further stellate \nganglion blocks or medications will be of benefit.  I am going to refer her to \n\nPUCKETT – G808579 \n \nUAMS for consideration of spinal cord stimulator.”  Id.  However, as of June \n21, 2022, “[a]ll nerve conductions studies . . . were within normal limits. All \nexamined muscles . . . showed no evidence of electrical instability.”  (Resp. \nEx. 1, P. 117).  The claimant’s nerve conduction study was normal with no \nevidence of right median or ulnar mononeuropathy and no evidence of right \ncervical radiculopathy or electromyography.  Id.  \nA bone scan on June 27, 2022, reflected that “Previously identified \nincreased activity on all three phases with the right hand has resolved... \nNegative study.  There is no scintigraphic evidence of complex regional \npain syndrome.”  (Resp. Ex. 1, P. 127). \nSimply put, at this point there is no basis for ordering an evaluation \nfor a spinal cord stimulator.  The objective evidence reflects that the \nclaimant’s condition has resolved, and there are no radiological reports that \nreflect otherwise.  It is not reasonable or necessary to require the \nrespondents to provide the claimant with treatment in contradiction to the \nfindings of two separate objective tests.  Dr. Walker provided no reasoning \nfor his referral to UAMS, and there is no evidence that this treatment would \nserve to address the claimant’s purported needs.  For these reasons, the \nclaimant has failed to establish her burden of proof.  \n \n \n\nPUCKETT – G808579 \n \nAccordingly, for the reasons set forth above, I concur, in part, and \ndissent, in part. \n      __________________________________                                     \nMICHAEL R. MAYTON, Commissioner","textLength":11319,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G808579 JURMICKA PUCKETT, EMPLOYEE CLAIMANT ARKANSAS DEPT. OF CORRECTIONS., EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT OPINION FILED APRIL 4, 2024 Upon review before the FULL COMMISSION in Little Rock,...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["wrist","sprain","cervical"],"fetchedAt":"2026-05-19T22:29:45.697Z"},{"id":"full_commission-G905793-2024-04-03","awccNumber":"G905793","decisionDate":"2024-04-03","decisionYear":2024,"opinionType":"full_commission","claimantName":"Emery Humphries","employerName":"Fna Group, LLC","title":"HUMPHRIES VS. FNA GROUP, LLC AWCC# G905793 APRIL 3, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Humphries_Emery_G905793_20240403.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Humphries_Emery_G905793_20240403.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G905793 \n \n \nEMERY HUMPHRIES, EMPLOYEE              CLAIMANT    \n \nFNA GROUP, LLC, EMPLOYER                              RESPONDENT\n     \nAMTRUST NORTH AMERICA., CARRIER/TPA       RESPONDENT\n          \n \nOPINION FILED APRIL 3, 2024 \n \nUpon review before the Full Commission, Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE JASON M. HATFIELD, Attorney \nat Law, Fayetteville, Arkansas.  \n \nRespondents represented by the HONORABLE WILLIAM C. FRYE, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Reversed. \n \n \nOPINION AND ORDER \n  \nRespondents appeal the Opinion filed August 18, 2023, by the \nadministrative law judge (“ALJ”) finding that the respondent employer, FNA \nGroup, LLC, has failed to prove by a preponderance of the evidence that it \nwas a dual employer of the claimant and entitled to protection under the \nexclusive remedy provisions of Arkansas Code Annotated § 11-9-105.  \nIn this State, an employer is granted protection from civil liability by \nArkansas Code Annotated § 11-9-105(a), which states in part that: \n(a) The rights and remedies granted to an \nemployee subject to the provisions of this \n\nHUMPHRIES – G905793               2 \n \n \nchapter, on account of injury or death, shall be \nexclusive of all other rights and remedies of the \nemployee, his legal representative, \ndependents, next of kin, or anyone otherwise \nentitled to recover damages from the \nemployer[.] \n \nThe fundamental question as to special employment is whether the \nrelationship of employer and employee existed at the time of the injury. \nRandolph v. Staffmark, 2015 Ark. App. 135, 456 S.W.3d 389 (2015).  \nWhat is at issue before us is the application of the \ndual-employment doctrine. This doctrine was \nexplained by our supreme court in Daniels v. Riley's \nHealth & Fitness Centers, 310 Ark. 756, 840 S.W.2d \n177 (1992), where it held that when a general \nemployer lends an employee to a “special employer,” \nthe special employer becomes liable for workers' \ncompensation only if three factors are satisfied: \n \n(1) the employee has made a contract for hire, \nexpress or implied, with the special employer; \n \n(2) the work being done is essentially that of the \nspecial employer; and \n \n(3) the special employer has the right to control \nthe details of the work. Id. \n \nIt is well settled that although a worker may be the servant of one \nemployer for certain acts and the servant of another for other acts, “[t]he \ncrucial question is which employer had the right to control the particular act \ngiving rise to the injury.” Charles v. Lincoln Construction, 235 Ark. 470, 361 \nS.W.2d 1 (1962).  \nOur courts have consistently held that staffing agencies and \ntemporary agencies such as Labor Solutions are part of today’s \n\nHUMPHRIES – G905793               3 \n \n \nmarketplace and staffing agency-contractor relationships satisfy the dual-\nemployment doctrine. \nWhere there is no express contract between the parties, we must \ndetermine whether there was an implied contract between the claimant and \nFNA. The existence of an implied contract for hire is a fact question to be \ndetermined on the totality of the circumstances surrounding the relationship \nof the claimant and FNA. Randolph v. Staffmark, 2015 Ark. App. 135, 456 \nS.W.3d 389 (2015).  \nAn implied contract is proven by showing the parties intended to \ncontract by circumstances showing the general course of dealing between \nthe parties. K.C. Props. of N.W. Ark., Inc. v. Lowell Inv., LLC, 373 Ark. 14, \n280 S.W.3d 1 (2008). The primary test is which party controls the work \nbeing done. Estate of Bogar v. Welspun Pipes, Inc., 2014 Ark. App. 536, \n444 S.W.3d 405 (2014).  \nThere are “no greater indications of an implied employment contract \nthan the ability to determine a worker’s weekly hours, his rate of pay, his \ndiscipline, and his termination, combined with the right to control the work \nbeing performed.” Id. The question of who writes an employee’s paycheck \nis one of mechanics and not of substance and does not control the analysis. \nDurham V. Prime Indus. Recruiters, Inc., 2014 Ark. App. 494, 442 S.W.3d \n881 (2014).  \n\nHUMPHRIES – G905793               4 \n \n \nWhile the question of whether an employee is paid for his services is \na factor in determining the existence of an implied contract, the courts are \nnot concerned with whether a contractor pays an employee directly or \nthrough reimbursements for a temporary service’s payments for that work, \nbut rather whether there is work done for which an employee is paid. See \nBogar, 2014 Ark. App. 536, 444 S.W.3d 405; Sharp County Sheriff's Office \nv. Ozark Acres Improvement District, 349 Ark. 20, 75 S.W.3d 690 (2002). \nThe Court ruled in Gann v. CK Asphalt, LLC, 2023 Ark. App. 218, \n666 S.W.3d 116 (2023) that even where business operations are \n“combined,” or share the same ownership and compensate each other for \nthe use of tools and materials, there must be evidence that the special \nemployer actually compensated a worker to create a contract. In finding \nthere was no contract for hire between the claimant and BLK since BLK did \nnot pay Mr. Gann, the Court stated: \nAbsent the remuneration required by Sharp County, \nthere can be no implied contract between Gann and \nBLK. The test in Daniels v. Riley's Health & Fitness \nCenters, 310 Ark. 756, 840 S.W.2d 177 (1992), is a \nthree-part conjunctive test. Id. \n \nIn analyzing the issue of dual employment, our courts have looked to \nother states for clarity and relying at times on a Minnesota decision that \nstates: \nSince both employers may each have some control \nthere is nothing logically inconsistent . . . in finding \nthat a given worker is the servant of one employer for  \n  \n\nHUMPHRIES – G905793               5 \n \n \ncertain acts . . .    The crucial question is which \nemployer had the right to control the particular act \ngiving rise to the injury.  \n \nDaniels v. Riley's Health & Fitness Ctrs., 310 Ark. 756, 840 S.W.2d 177 \n(1992) (citing Nepstad v. Lambert, 235 Minn. 1, 50 N.W.2d 614 (1951)).  \nSince the question of liability is always raised \nbecause of some specific act done the important \nquestion is not whether or not he remains the servant \nof the general employer as to matters generally but \nwhether or not as to the act in question, he is acting in \nthe business of and under the direction of one or the \nother. \n \nCharles v. Lincoln Constr. Co., 235 Ark. 470, 361 S.W.2d 1 (1962) (citing \nNepstad, 235 Minn. 1, 50 N.W.2d 614).  \nThe dual-employment doctrine does not require the contract between \nthe parties to be long term or permanent, whether express or implied. \nAlthough the Commission may consider the length of time an employee \nworks for a special employer in its analysis, it is not determinative. Ward v. \nCommerce Construction Co., 2024 Ark. App. 150 (2024). “The crucial \nquestion is which employer had the right to control the particular act giving \nrise to the injury.” Id. \nIn the present case, FNA is in the business of building gasoline \npowered pressure washers and generators. (Hrng. Tr, P. 50). In August of \n2019, FNA was contracted with Labor Solutions, a temporary staffing \nagency, to provide employees for work on their production lines. (Hrng. Tr., \nPp. 50, 52). Labor Solutions maintained an office in the FNA facility with its \n\nHUMPHRIES – G905793               6 \n \n \nown entrance and facilities. (Hrng. Tr, P. 52). Although employees were \nrecruited by Labor Solutions, FNA determined working hours, breaks, pay \nrates, dress code, and who would be line leaders. (Hrng. Tr., Pp. 52-53, \n55). FNA has the ultimate say in whether a worker is entitled to a pay raise. \n(Hrng. Tr, P. 53). FNA’s rights extended to the ability to assign worker tasks \nand FNA maintained the right to fire employees without agreement by Labor \nSolutions. (Hrng. Tr, Pp. 53-55, 80). FNA provided any necessary safety \nequipment such as grinding shields and welding hoods. (Hrng. Tr, P. 56). In \nshort, FNA had total control over all aspects of the work done in their \nfacility, including the quality of the work and how the work was performed. \n(Hrng. Tr, P. 59). Labor Solutions had no control or supervision over the line \nwork or how FNA products were made. (Hrng. Tr, P. 82).  \nJuan Dominguez, who worked for Labor Solutions out of the FNA \nfacility in 2019, testified that FNA was responsible for almost every aspect \nof the job other than getting an employee through the door. Id. “FNA \nassumes control of the employee and designates the assignment and is \nresponsible for the daily oversight, training, management, and productivity \nof that individual associate.” (Hrng. Tr, P. 108). During orientation, Labor \nSolutions makes it clear that an associate works for FNA. (Hrng. Tr., P. 78). \nWhile Labor Solutions may have controlled the administrative \naspects of the claimant’s work with FNA, such as issuing payroll and \nhandling insurance, FNA handled all day-to-day assignments. (Hrng. Tr., \n\nHUMPHRIES – G905793               7 \n \n \nPp. 109-110). And although Labor Solutions delivered the claimant’s pay, \nFNA itself paid Labor Solutions an employee’s hourly rate with an additional \ntwenty-five percent (25%) surcharge for “all of the other day-to-day \nbusiness operations.” (Hrng. Tr, P. 77).  On the date of the claimant’s \ninjury, Labor Solutions had no role in assigning the claimant to the baler. \n(Hrng. Tr, P. 57).  \nIn his hearing testimony, FNA Senior Vice-President Thomas Moffett \nhad the following exchange regarding the agreement between FNA and \nLabor Solutions: \nQ: (by Mr. Frye) Who sets the wage rates? \n \nA: (by Mr. Moffett) FNA does. \n \nQ: Okay. What can Labor Solutions do about the \nhourly rate that is paid to, say, Mr. Humphries? \n \nA: Nothing. \n \nQ: So under this, you have already mentioned \nabout the duties of Labor Solutions. What does \nFNA do? \n \nA: FNA assumes control of the employee and \ndesignates the assignment and is responsible \nfor the daily oversight, training, management, \nand productivity of that individual associate. \n \nQ: So you all control the means and methods of \nthe work? \n \nA: Yes, sir. \n \nQ: So, you heard Rick say that you all set the pay \nrate? \n \n\nHUMPHRIES – G905793               8 \n \n \nA: Correct, that is correct. \n \nQ: The breaks, the overtime? \n \nA: That is correct. \n \nQ: Determine the work assignments and the \nsupervisors? \n \nA: That is correct. \n \nQ: All right. Just a side note, Mr. Hatfield asked \nJuan [Dominguez] about investigation after Mr. \nHumphries was hurt. Did FNA send anybody \ndown to do an investigation? \n \nA: We did. \n \nQ: Who was sent down to do the investigation? \n \nA: We sent immediately our CFO, Rocky Scalzo, \nand our corporate HR manager, Samantha \nCarias, from the Pleasant Prairie, Wisconsin \noffice. \n \nQ: Okay. With the way it was working, who was \nresponsible for controlling and assigning and \nputting people in the work assignments? \n \nA: The local FNA management. \n \nQ: You heard Mr. Hickson say that if he decided \nhe wanted to terminate somebody that he \ncould. Is that how it worked? \n \nA: Yes, he could. \n \nQ: Okay. So Labor Solutions would do the \norientation and get the people in the door; \ncorrect? \n \nA: That is correct. \n \n\nHUMPHRIES – G905793               9 \n \n \nQ: And then it was left up to FNA to move the \nemployees and control the job? \n \nA: That is correct. \n \nQ: Okay. Why was it set up like this? \n \nA: Because we are responsible for the throughput \nand the quality of product that goes out of that \nmanufacturing facility. \n \nQ: Okay. And is this the way that this was done \nbetween FNA and Labor Solutions in 2019? \n \nA: Yes, sir. \n \nQ: Okay. Was there any deviation from that? \n \nA: Not that I’m aware of. \n \nQ: Okay. Well, as senior vice-president, would \nyou be aware of that? \n \nA: Yes. \n \nQ: Okay. So, again, the way this agreement was \nis they hired the people and you managed the \nlabor? \n \nA: That is correct. \n \nQ: Labor Solutions did the recruiting and did \nmanagement of the process of the \nadministrative tasks of payroll and wages; \ncorrect? \n \nA: Correct. \n \nQ: And outside of that, there was a handoff that \nwas made to the local FNA associates and \ntheir managers? \n \nA: That is correct. (Hrng. Tr., Pp. 107-110). \n \n\nHUMPHRIES – G905793               10 \n \n \nMr. Moffett went on to explain: \nSo from an operationally-speaking position, the Labor \nSolutions Group was responsible for the recruiting \nand the staffing, if you may, of temp labor. [FNA] then \nat that point in time took over. And when I say took \nover, the FNA local management would then assume \nresponsibility for the assignments and the training and \nthe development and the promotion and the \nreassignments of those such employees. And we \noperated not only in 2019, but for somewhere around \nI believe 16 years under that premise and both \nowners of the business understood exactly what the \nroles were for each business.  \n \n(Hrng. Tr., P. 111). \n \nFNA was a dual employer of the claimant at the time of his injury. \nNot only did FNA specifically assign the claimant to the baler with no input \nfrom Labor Solutions, but FNA controlled every aspect of the claimant’s \nwork from when he arrived to what he wore on a day-to-day basis. FNA \ndetermined what the claimant would earn and if he was entitled to more pay \nand reimbursed Labor Solutions for the claimant’s pay. The only role Labor \nSolutions had over the claimant’s employment was his initial hiring and \nadministrative duties such as payroll. \nWhile the ALJ focuses on the language of the contract between FNA \nand Labor Solutions, he disregards the fact that Labor Solutions had no say \nin any essential aspect of the claimant’s work with FNA. The parties were \noperating under an implied contract at the time of the claimant’s injury. \nFurther, the claimant’s work for FNA was clearly “essentially that of the \nspecial employer,” as he was working in the FNA facility under its control at \n\nHUMPHRIES – G905793               11 \n \n \nthe time of his injury. And given that FNA was responsible for every aspect \nof the claimant’s work, the claimant was operating under FNA’s control on \nthe date of the accident, August 19, 2019. \nFor these reasons, we find that FNA was a special employer of the \nclaimant at the time of his on-the-job injury and is, therefore, entitled to the \nexclusive remedy doctrine of our Act. Therefore, the Opinion of the ALJ filed \non August 18, 2023 should be and is hereby reversed. \nIT IS SO ORDERED. \n \n    ____________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ____________________________________ \n    MICHAEL R. MAYTON, Commissioner  \n \n \n \n \nCommissioner Willhite dissents. \nDISSENTING OPINION \nThe Administrative Law Judge (hereinafter referred to as “ALJ”) found \nthat the Claimant failed to prove by a preponderance of the evidence that it \nwas a dual employer of the Claimant and is entitled to protection under the \nExclusive Remedy provision of Ark. Code Ann. § 11-9-105. After a thorough \nreview of the record, I would agree with that finding.  \n\nHUMPHRIES – G905793               12 \n \n \nThe dual-employment doctrine provides that when a general \nemployer lends an employee to a special employer, the special employer \nbecomes liable for workers’ compensation only if (a) the employee has \nmade a contract for hire, express or implied, with the special employer; (b) \nthe work being done is essentially that of the special employer; and (c) the \nspecial employer has the right to control the details of the work.   Randolph \nv. Staffmark, 2015 Ark. App. 135, 456 S.W.3d; Daniels v. Riley’s Health & \nFitness Ctrs., 310 Ark. 756, 759, 840 S.W.2d 177, 178 (1992).    When all \nthree of the above conditions are satisfied in relation to both employers, \nboth employers are liable for workers' compensation.   Id.   The solution of \nalmost every such case depends on the answer to the basic, fundamental, \nand bedrock question of whether, as to the special employee, the \nrelationship of employer and employee existed at the time of the injury.   Id. \nIf the facts show such a relationship, then the existence of a general \nemployer should not change or be allowed to confuse the solution of the \nproblem.   Id.  \nAn express contract exists between Respondent and Labor Solutions, \nthe temporary staff agency. The express contract specifically states:  \n 5. Personnel. Labor Solutions, at its cost, shall \nprovide personnel (the “Personnel”) to perform \nthe Services.  Labor Solutions shall be solely \nresponsible for the full payment of all \n\nHUMPHRIES – G905793               13 \n \n \ncompensation due the Personnel, including, \nwithout limitation, all wages, benefits, \nwithholdings, payroll taxes and contributions.  \nNo Personnel of Labor Solutions shall be \ndeemed an employee of Customer for any \npurpose relating to this Agreement, including \nwithout limitation, under any compensation \nof benefit plan of Customer.   \n(Emphasis added).  \nIt appears to be clear from the evidence that the Claimant did not \nhave an express contract with Respondent, but rather Respondent \nexpressly prohibited the Claimant from being recognized as an employee \nthrough Labor Solutions. The next question is whether an implied contract \nof employment could exist between the Claimant and Respondent.    This \nanalysis requires a determination of the intent of the parties.   See City of \nBatesville v. Independence County, 2023 Ark. App. 401, 678 S.W.3d 35.   \nSince the parties have expressly stated their intent to avoid such a finding, \nit would seem inappropriate to consider other evidence. I find that where the \nparties expressly and clearly state their intention to avoid an employment \nrelationship, there can be no implication that a contract of this type exists.   \nAs such, Respondent has failed to prove by a preponderance of the \nevidence that it was a dual employer of the Claimant and therefore entitled \n\nHUMPHRIES – G905793               14 \n \n \nto the Exclusive Remedy protections provided by Ark. Code Ann. § 11-9-\n105.  \n Therefore, for the aforementioned reasons, I find that the Claimant \nwas not a dual employee of Respondent and Labor Solutions and therefore \nRespondent should not be entitled to the Exclusive Remedy protections \nprovided by Ark. Code Ann. § 11-9-105.  \n For the foregoing reasons, I must dissent. \n \n      ________________________ \nM. Scott Willhite, Commissioner","textLength":18506,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G905793 EMERY HUMPHRIES, EMPLOYEE CLAIMANT FNA GROUP, LLC, EMPLOYER RESPONDENT AMTRUST NORTH AMERICA., CARRIER/TPA RESPONDENT OPINION FILED APRIL 3, 2024 Upon review before the Full Commission, Little Rock, Pulaski County, Arkansas. Claimant represented by ...","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.585Z"},{"id":"alj-H004172-2024-04-02","awccNumber":"H004172","decisionDate":"2024-04-02","decisionYear":2024,"opinionType":"alj","claimantName":"Jacob Pringle","employerName":null,"title":"PRINGLE VS. TOTAL PRECISION, INC.AWCC# H004172April 2, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PRINGLE_JACOB_H004172_20240402.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PRINGLE_JACOB_H004172_20240402.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H004172 \n \nJACOB PRINGLE, EMPLOYEE         CLAIMANT \n \nTOTAL PRECISION, INC., EMPLOYER            RESPONDENT \n \nMARKEL SERVICE, Servicing Entity for \nFirstCOMP INSURANCE COMPANY            RESPONDENT \n \nOPINION FILED APRIL 2, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on March 26, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents  are  represented  by Mr. Randy P.  Murphy, Attorney-at-Law  of Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on March 26, 2024, in Little Rock, \nArkansas on  respondents’ Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to  Ark. \nCode Ann. §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  The \nclaimant was pro se and failed to appear for the hearing.  The claimant had filed a Form \nAR-C in  March  of  2020, through  his  attorney  Daniel  Wren,  claiming  entitlement to \nadditional benefits due to an injury of the small, fifth finger of the right hand.  The claim \nwas  accepted.  An  AR-2 was  filed  on  or  about  July  7,  2020,  that  did  not provide any \nreason  to  controvert  the  claim. The claimant’s attorney, Daniel Wren, was allowed to \nwithdraw by an Order of the Full Commission dated May 16, 2023.    \n A Motion to Dismiss was filed on or about January 23, 2024, requesting that the \nmatter be dismissed for failure to prosecute pursuant to A.C.A. §11-9-702(a)(4) and Rule \n099.13.  The claimant has not requested a hearing to date and more than six (6) months \n\nhave passed since the filing of the original claim nor is there any record of him contacting \nthe Commission.   \n Appropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was set for March 26, 2024, in Little Rock, Arkansas.  The claimant did \nnot file a response and failed to appear on the hearing date.  At the time of the hearing, \nRandy P. Murphy, appeared on behalf of the respondents and asked that the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A.  11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2817,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H004172 JACOB PRINGLE, EMPLOYEE CLAIMANT TOTAL PRECISION, INC., EMPLOYER RESPONDENT MARKEL SERVICE, Servicing Entity for FirstCOMP INSURANCE COMPANY RESPONDENT OPINION FILED APRIL 2, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Ro...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:00.377Z"},{"id":"alj-H207289-2024-04-02","awccNumber":"H207289","decisionDate":"2024-04-02","decisionYear":2024,"opinionType":"alj","claimantName":"Maribel Weaver","employerName":null,"title":"WEAVER VS. COMPASS GROUP USA, INC.AWCC# H207289 & H302875April 2, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WEAVER_MARIBEL_H207289-H302875_20240402.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WEAVER_MARIBEL_H207289-H302875_20240402.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H207289 & H302875 \n \nMARIBEL CANDIA-WEAVER, EMPLOYEE       CLAIMANT \n \nCOMPASS GROUP USA, INC., EMPLOYER           RESPONDENT \n \nAIU INSURANCE, COMPANY, INSURANCE CARRIER         RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES, INC., \nTHIRD PARTY ADMINISTRATOR            RESPONDENT \n            \nOPINION DENYING THE MOTION TO DISMISS FILED APRIL 2, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on April 2, 2024. \n \nClaimant is pro se and appeared and an interpreter was provided. \n \nRespondents  are  represented  by Mr. Rick  Behring,  Jr., Attorney-at-Law  of Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on April  2, 2024, in Little  Rock, \nArkansas on respondents’ Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode  Annotated §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct.  The claimant was pro se and appeared for the hearing.  The claimant had sustained \na compensable injury to her hand/wrists while employed by the respondent/employer on \nor about September 4, 2022.  Later, on September 14, 2022, the claimant sustained a \nsecond  compensable injury. The  treating  physician  determined  that  the  claimant  had \nreached MMI on or about June 20, 2023, and the claimant then requested a change of \nphysician on or about September of 2023, which was granted, and the claimant was then \nseen and treated by Dr. Heard.  The claimant, who still works for the respondent, contends \nthat she was to receive additional physical therapy.     \n\nWEAVER – H207289 & H302875 \n \n2 \n \nIt was explained to the claimant that she has the burden of proof in regard to her \nclaim(s) and that it would be in her best interest to again talk to the Legal Advisor Division \nof the Commission and Catherine Richart, who she had talked to in the past.   \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, and statements by the claimant, I find that the Motion to Dismiss should be \ndenied at this time. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to deny \nthe Motion to Dismiss at this time. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2514,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207289 & H302875 MARIBEL CANDIA-WEAVER, EMPLOYEE CLAIMANT COMPASS GROUP USA, INC., EMPLOYER RESPONDENT AIU INSURANCE, COMPANY, INSURANCE CARRIER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION DENYING THE ...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:02.453Z"},{"id":"alj-G801775-2024-04-01","awccNumber":"G801775","decisionDate":"2024-04-01","decisionYear":2024,"opinionType":"alj","claimantName":"Ora Dumas","employerName":null,"title":"DUMAS VS. ARKANSAS DEPT. OF FINANCE & ADMIN.AWCC# April 1, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DUMAS_ORA_G801775_20240401.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DUMAS_ORA_G801775_20240401.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G801775 \n \nORA DUMAS, Employee                                                                    CLAIMANT \n \nARKANSAS DEPT. OF FINANCE & ADMIN.,                                       RESPONDENT                                                        \nEmployer \n \nPUBLIC EMPLOYEE CLAIMS DIV., Carrier/TPA                                     RESPONDENT                                                                                                    \n \n \n \n OPINION/ORDER FILED APRIL 1, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by CHARLES MCLEMORE, Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This  case  comes  on for review following a hearing on respondent’s Motion to \nDismiss. \n Respondent accepted a compensable injury in the form of carpal tunnel syndrome \nand paid some medical benefits to claimant.  In an order filed August 31, 2020, claimant \nwas granted a change of physician to Dr. Stephen Heim.  Claimant was evaluated by Dr. \nHeim  on  September  22,  2020.    Since  that  time,  claimant  has  received  no  additional \nmedical treatment and no further benefits have been requested.  As a result, respondent \nfiled  a  Motion  to  Dismiss  in  October  2023.     A  hearing on  respondent’s  motion  was \nscheduled for March 25, 2024.  Notice of the hearing was sent to claimant by certified \nmail and delivered on February 28, 2024. \n\nDumas – G801775 \n \n2 \n \n Claimant  did  not  appear  at  the  hearing; however, her  attorney  was  present  and \nindicated that he had discussed this claim with the claimant who indicated that she was \nnot interested in any additional surgical treatment and did not object to dismissal of the \nclaim. \n Accordingly, after my review of the respondent’s motion, the claimant’s response \nthereto, and all other matters properly before the Commission, I find that respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2362,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G801775 ORA DUMAS, Employee CLAIMANT ARKANSAS DEPT. OF FINANCE & ADMIN., RESPONDENT Employer PUBLIC EMPLOYEE CLAIMS DIV., Carrier/TPA RESPONDENT OPINION/ORDER FILED APRIL 1, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Seba...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":["carpal tunnel"],"fetchedAt":"2026-05-19T22:54:58.300Z"},{"id":"alj-H206967-2024-03-28","awccNumber":"H206967","decisionDate":"2024-03-28","decisionYear":2024,"opinionType":"alj","claimantName":"Engrid Harris","employerName":"Biomat USA, Inc","title":"HARRIS VS. BIOMAT USA, INC. AWCC# H206967 MARCH 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HARRIS_ENGRID_H206967_20240328.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRIS_ENGRID_H206967_20240328.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H206967 \n \nENGRID HARRIS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nBIOMAT USA, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nFARMINGTON CASUALTY CO./ \nTRAVELERS INDEMNITY CO. \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE  \nFILED MARCH 28, 2024 \n \nHearing conducted on Tuesday, March 26, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Engrid Harris, pro se, of Little Rock, Pulaski County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Tuesday, March 26, 2024, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Replacement). \n The respondents  filed  a letter motion to  dismiss without  prejudice (MTD) with  the \nCommission on November 3, 2023, requesting this claim be dismissed without prejudice for lack \nof prosecution. Consistent with the applicable Arkansas law, thereafter the Commission mailed a \ncopy of both the respondents’ MTD and the subject hearing notice to the claimant via the United \nStates Postal Service (USPS), Certified Mail, Return Receipt Requested, to her last known address \nof record with the Commission. (Commission Exhibit 1; Respondents’ Exhibit 1). Thereafter, the \n\nEngrid Harris, AWCC No. H206967 \n \n2 \n \nclaimant  failed  and/or  refused  to  respond  in  any  way  to  either  the  Commission  or to the \nrespondents; and  she  failed  and/or  refused to  appear  at  the  subject  hearing.  The  claimant  never \nobjected in any way to the respondents’ MTD.  \n           The  claimant  had  at  one  time  been  represented  by  counsel,  Ms.  Laura  Beth  York,  of  the \nRainwater, Holt & Sexton law firm. By letter dated and filed with the Commission on October 6, \n2023, the claimant’s attorney filed a letter motion to be relieved as the claimant’s counsel. The \nFull Commission granted the claimant’s attorney’s request to be relieved as counsel via an order \nfiled October 24, 2023. (RX1).  \n The  record  herein  consists  of the  hearing  transcript  and  any  and  all exhibits  contained \ntherein and attached thereto. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the parties’ joint \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing and contained in the record conclusively demonstrates the \nclaimant has both failed and/or refused to prosecute her claim, and she has failed and/or refused to \nrequest a hearing within the last six (6) months. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After the Commission mailed due and legal notice of both the respondents’ letter  \n\nEngrid Harris, AWCC No. H206967 \n \n3 \n \n                 MTD filed with the Commission on November 3, 2023, as well as a copy of the \n                 notice for the subject hearing to the claimant’s last known address of record with \n                 the Commission, the claimant failed and/or refused to respond to the MTD in any \n                 way; or to object to the subject MTD; or to request a hearing.  \n \n            3.         Moreover, the claimant failed and/or refused to appear at the subject hearing and, \n                        therefore, has waived her right to a hearing on the MTD. \n \n      4.         The claimant has failed to request a hearing on the merits of her claim within the \n                   last six (6) months. \n \n 5. Therefore, the respondents’ letter MTD filed with the Commission on November \n                  3, 2023, should be and hereby is GRANTED. \n      \n      6.         This claim is dismissed without prejudice to its refiling pursuant to the deadlines \n                  prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission Rule 099.13. \n \n This opinion and order shall not be construed to  prohibit the claimant, her attorney, any \nattorney she may retain in the future, or anyone acting legally and on her behalf from refiling this \nclaim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The  respondents shall pay the court reporter’s invoice within twenty  (20) days  of their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \n \n \nMP/mp","textLength":5820,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206967 ENGRID HARRIS, EMPLOYEE CLAIMANT BIOMAT USA, INC., EMPLOYER RESPONDENT FARMINGTON CASUALTY CO./ TRAVELERS INDEMNITY CO. INSURANCE CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED MARCH 28, 2024 Hearing conducted on Tuesday, March 26...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:56:57.758Z"},{"id":"alj-H100782-2024-03-28","awccNumber":"H100782","decisionDate":"2024-03-28","decisionYear":2024,"opinionType":"alj","claimantName":"Susan Webb","employerName":"Arkansas Democrat-Gazette, Inc","title":"WEBB VS. ARKANSAS DEMOCRAT-GAZETTE, INC. AWCC# H100782 MARCH 28, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/WEBB_SUSAN_H100782_20240328.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WEBB_SUSAN_H100782_20240328.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H100782 \n \nSUSAN Y. WEBB, EMPLOYEE        CLAIMANT \n \nARKANSAS DEMOCRAT-GAZETTE, INC., EMPLOYER         RESPONDENT \n \nAMERICAN ZURICH INS. CO./ \nGALLAGHER BASSETT SERVICES, INC., CARRIER/TPA       RESPONDENT \n  \n \n \nOPINION FILED 28 MARCH 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe, 27 March 2024, in Little Rock, Pulaski County, Arkansas. \n \nThe pro se claimant did not appear. \n \nMr. Rick Behring, Jr., Attorney-at-Law of Little Rock, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 27 March 2024. This case relates to a workplace injury sustained on 21 \nOctober 2019, when she was delivering materials for her employer and an elevator door hit \nher right shoulder and upper arm. A First Report of Injury and a Form AR-2 were filed on 2 \nFebruary 2021 accepting the claim. On 28 July 2021, the claimant filed a Form AR-C seeking \nvarious benefits.  \n On 12 April 2022, the respondents filed their initial Motion to Dismiss for failure to \nprosecute the claim. The claimant communicated her objection to a dismissal, and, by way of \na letter dated 3 May 2022, the Commission held that motion in abeyance, anticipating a \nhearing on the matter. After holding a prehearing telephone conference, the matter was \nreturned to the Commission’s General Files, as evidenced by the Commission’s letter dated \n27 July 2022. \n\nS. WEBB- H100782 \n2 \n \n The respondents renewed their Motion to Dismiss for failure to prosecute on 29 \nFebruary 2024. In that Motion, the respondents indicated that the claimant sought, gained \nauthorization for, and successfully recovered from a surgery related to the work injury. They \nfurther stated that the claimant had not sought a hearing on any matter at controversy in \nthe six (6) months preceding that filing.  In an email to the Commission dated 7 March 2024, \nthe claimant noted that her surgery was a success, that she was not experiencing any injury-\nrelated pain, and that she did not object to the dismissal. \nThe  respondents  appeared on  27  March  2024,  presented  their  motion,  and  offered \nsupporting  evidence into  the  record. As  argued by  the  respondents at the  hearing,  the  file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of that \nmotion. The most recent activity from the claimant, instead, being her relaying good news \nabout her surgery and her being agreeable to this matter’s dismissal. \n Arkansas Code  Annotated §11-9-702(a)(4)  states  that  a  matter  may  be  dismissed \nwithout prejudice after six months without a bona fide request for a hearing. Our Rule 099.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter should \nbe dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3331,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H100782 SUSAN Y. WEBB, EMPLOYEE CLAIMANT ARKANSAS DEMOCRAT-GAZETTE, INC., EMPLOYER RESPONDENT AMERICAN ZURICH INS. CO./ GALLAGHER BASSETT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED 28 MARCH 2024 Heard before Arkansas Workers’ Compensation Commi...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:56:59.917Z"},{"id":"alj-H007900-2024-03-28","awccNumber":"H007900","decisionDate":"2024-03-28","decisionYear":2024,"opinionType":"alj","claimantName":"Lawrence Watson","employerName":"Dobbs Peterbilt West Memphis","title":"WATSON VS. DOBBS PETERBILT WEST MEMPHIS AWCC# H007900 MARCH 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Watson_Lawrence_H007900_20240328.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Watson_Lawrence_H007900_20240328.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H007900 \n \n \nLAWRENCE WATSON, EMPLOYEE CLAIMANT \n \nDOBBS PETERBILT WEST MEMPHIS, \nEMPLOYER RESPONDENT \n \nLUBA CASUALTY INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MARCH 28, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on March 28, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant represented  by  Mr. Daniel  E.  Wren,  Attorney  at  Law, Little  Rock, \nArkansas (neither appearing). \n \nRespondents represented  by  Mr. Jarrod  S.  Parrish,  Attorney  at  Law, Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  by \nRespondents.  A  hearing  on  the  motion  was  conducted  on March  28,  2024, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant and  his \ncounsel  waived  their  appearance at  the  hearing.    Admitted  into  evidence  was \nRespondents’ Exhibit 1, pleadings, correspondence, reports, and forms related to \nthis claim, consisting of one index page and 21 numbered pages thereafter. \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed on October 16, 2020, Claimant \npurportedly suffered  an  injury  to  his  right  shoulder  on  October  6,  2020,  when  he \nwas removing an oil pan at work.  According to the Form AR-2 that was filed on \n\nJACKSON – H201641 \n \n2 \n \n \nOctober  20,  2020,  Respondents accepted  the  claim and  paid  medical  and \nindemnity benefits pursuant thereto. \n On February 10,  2023,  Claimant through  counsel filed  a  Form  AR-C, \nrequesting the  full  range  of  initial  and  additional benefits  in  connection  with  his \nalleged shoulder injury.     No    hearing    request    accompanied    this    filing.  \nRespondents’ counsel made their entry of appearance on February 14, 2023. \n The  record  reflects  that  no  further  activity  took  place  on  the  claim  until \nSeptember  28,  2023.    On  that  date,  Respondents  filed  the  instant  Motion  to \nDismiss.  Therein, they asked that the claim be dismissed under AWCC R. 099.13 \nand/or Ark. Code Ann. § 11-9-702 (Repl. 2012) because “Claimant has not sought \nany  type  of  bona fide hearing before the Workers’ Compensation Commission \nover the last six months.”  The file was assigned to me on September 28, 2023; \nand  on  that  same  date,  my  office  wrote  Claimant  and  his  counsel,  requesting  a \nresponse  to  the  motion  within  20  days.    Counsel  did  so  in  a  response  pleading \nfiled  on  October  18,  2023.    Therein,  he  objected  to  dismissal  and  argued  the \nfollowing:  (1) the “parties have been active in negotiations”; and (2) “Claimant \nintends to file [a] Prehearing Questionnaire [response] on Wage Loss in the next \n10 days.”  I interpreted this as a hearing request, and informed the parties on \nOctober  18,  2023,  that  I  would  take  the  motion  under  advisement.    Prehearing \nquestionnaires  were  issued  to  the  parties.    Claimant  filed  a  timely  response \nthereto  on November  8,  2023;  and  Respondents  followed  suit  on November  17, \n\nJACKSON – H201641 \n \n3 \n \n \n2023.    Following  a  prehearing  telephone  conference  on  December  4,  2023,  a \nscheduled  a  hearing  for  February  23,  2024,  at  10:30  a.m.  at  the  Crittenden \nCounty Courthouse in Marion on the following issues: \n1. What was Claimant’s average weekly wage? \n2. Whether  Claimant  is  entitled  to  additional indemnity  benefits  based \nupon earlier payment of them at a lower rate that that established by \nIssue No. 1. \n3. Whether Claimant is entitled to wage loss disability benefits. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \nHearing  preparation  continued.    On  February  16,  2024,  Respondents  filed  the \nindexes  for  their  medical  and  non-medical  exhibits,  which  they  furnished  to \nClaimant.    However,  on February  21,  2024,  Claimant’s  counsel  emailed  the \nfollowing: \nJudge Fine[:] \nDo [sic] to very recent changes in my client’s employment status we \nno  longer  need  a  hearing.    I  apologize  for  the  late  cancellation.    I \nwill pay the court reporter’s fee.  At this time we would ask that the \ncase  be  returned  to  the  general  files.    I  have  discussed  this  with \n[Respondents’ counsel] and he has no objection. \n \nBased on this, the hearing was cancelled. \n Respondents’ counsel on that same date renewed their Motion to Dismiss.  \nThe  hearing  was  initially  scheduled  on  February  26,  2024,  for  April  12,  2024,  at \n12:30 p.m.  in  the St. Francis  County  Courthouse  in  Forrest  City.  However,  after \n\nJACKSON – H201641 \n \n4 \n \n \nthe office of Claimant’s counsel on February 28, 2024, emailed me that both he \nand Claimant “will be waiving their appearance” at the hearing, it  was  reset  for \nMarch  14,  2023,  at  10:00  a.m.  at  the  Commission  in  Little  Rock.   But  after \nRespondents’ counsel developed a conflict with that time, it was reset once more \nfor March 28, 2024, at 9:30 a.m. at the Commission in Little Rock. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on March \n28,   2024.    As   noted   above,   both Claimant and his counsel waived   their \nappearance.   Respondents  appeared  through  counsel  and  argued  for  dismissal \nunder the aforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n\nJACKSON – H201641 \n \n5 \n \n \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim  is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nmatter–by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant  has  failed  to  pursue  this claim.   Thus, the  evidence preponderates  that \ndismissal is warranted under Rule 13.  Because of this finding, it is unnecessary \nto address the application of § 11-9-702. \n\nJACKSON – H201641 \n \n6 \n \n \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at  the  hearing  asked  for  a  dismissal  without prejudice.   Based  on \nthe  foregoing, I agree  and  find  that  the  dismissal  of  these  claims  should  be  and \nhereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8683,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H007900 LAWRENCE WATSON, EMPLOYEE CLAIMANT DOBBS PETERBILT WEST MEMPHIS, EMPLOYER RESPONDENT LUBA CASUALTY INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 28, 2024 Hearing before Administrative Law Judge O. Milton Fine II on March 28, 2024, in Little Rock, P...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:57:02.024Z"},{"id":"alj-H304522-2024-03-27","awccNumber":"H304522","decisionDate":"2024-03-27","decisionYear":2024,"opinionType":"alj","claimantName":"William Holmes","employerName":"Conagra Foods","title":"HOLMES VS. CONAGRA FOODS AWCC# H304522 MARCH 27, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HOLMES_WILLIAM_H304522_20240327.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOLMES_WILLIAM_H304522_20240327.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H304522 \n \nWILLIAM HOLMES, Employee                                                                      CLAIMANT \n \nCONAGRA FOODS,  Employer                                                              RESPONDENT                                                        \n \nSEDGWICK CLAIMS MGT. SERVICES, Carrier/TPA                            RESPONDENT                                                              \n \n \n OPINION/ORDER FILED MARCH 27, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney, Little Rock, Arkansas; although \nnot appearing at hearing. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This  case  comes  on for review following a hearing on respondent’s Motion to \nDismiss. \n In July 2023 claimant filed Form AR-C alleging a compensable injury to his right \nshoulder  on  approximately  June  16,  2023.    Respondent  has  denied  that  claim  in  its \nentirety.  No further action was taken to prosecute the claim; therefore, on January 23, \n2024 respondent filed a motion to dismiss the claim.   \n A hearing on respondent’s Motion to Dismiss was scheduled for March 18, 2024, \nand notice of the hearing was sent to claimant by certified mail.  Notice of the hearing was \ndelivered to claimant on February 20, 2024.  Claimant did not appear at the hearing.  In \nresponse  to  the  respondent’s  motion,  claimant’s  attorney  indicated  by  e-mail  dated \n\nHolmes – H304522 \n \n2 \n \nFebruary 2, 2024 that she had no objection to dismissal of the claim without prejudice. \n Accordingly, after my review of the respondent’s motion, the claimant’s response \nthereto, and all other matters properly before the Commission, I find that respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2180,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304522 WILLIAM HOLMES, Employee CLAIMANT CONAGRA FOODS, Employer RESPONDENT SEDGWICK CLAIMS MGT. SERVICES, Carrier/TPA RESPONDENT OPINION/ORDER FILED MARCH 27, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County,...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1","denied:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:56:55.687Z"},{"id":"alj-H205903-2024-03-26","awccNumber":"H205903","decisionDate":"2024-03-26","decisionYear":2024,"opinionType":"alj","claimantName":"Tracy Decker","employerName":"White River Health System, Inc","title":"DECKER VS. WHITE RIVER HEALTH SYSTEM, INC. AWCC# H205903 MARCH 26, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DECKER_TRACY_H205903_20240326.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DECKER_TRACY_H205903_20240326.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205803 \n \nTRACY D. DECKER, EMPLOYEE        CLAIMANT \n \nVS. \n \nWHITE RIVER HEALTH SYSTEM, INC. EMPLOYER          RESPONDENT \n \nRISK MANAGEMENT RESOURCES,  \nCARRIER, TPA               RESPONDENT \n \nOPINION FILED MARCH 26, 2024 \n \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy, on  the 21\nst\n day  of \nFebruary, 2024, in Mountain Home, Baxter County, Arkansas. \n \nClaimant  is  represented  by Frederick S.  “Rick” Spencer,  Attorney-at-Law, Mountain \nHome, Arkansas. \n \nRespondents are represented by Kenneth P. “Casey” Castleberry, Attorney-at-Law, Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on the 21\nst\n day of February, 2024.  At the time of the \nhearing, the parties  agreed  that  the  issues  were  as  follows: (1)  Compensability  of a \ngradual  onset  injury  to claimant’s right  ankle;    (2) Reasonable  and  necessary  medical \ntreatment for her injury; (3)  Attorney fees.  All other issues were reserved.  \nThe respondents contend the claimant’s current problems, if any, are not related \nto an alleged  injury  of  November  15,  2021,  are  not  compensable,  and  the claimant’s \nalleged  injury  was  not  reported  to  the  employer  until  August  15,  2022.  The  claimant \nself-terminated  on  November  19,  2021,  with  no  notice  and  before  her  shift  was  over.  \nFurther,  the  respondents  contend  that  the  claimant  got  into  an  altercation  with  her \nson-in-law and fell off her porch on or about January 15, 2022.  \n\nDECKER – H205903 \n \n2 \n \nA Prehearing Order dated October 10, 2023, provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission has jurisdiction of the within claim \nand  that  an  employer/employee/carrier relationship  existed  on or  about November  15, \n2021, and all relevant times thereto.         \n The Prehearing Order along with the claimant’s and respondent’s contentions are \nall set out in their respective responses to the Prehearing Questionnaire and made a part \nof the record without objection.  The witnesses were Gabriel Don Decker, the husband of \nthe claimant, and the claimant, Tracy Decker.  From a review of the record as a whole, to \ninclude medical reports and other matters properly before the Commission, and having \nhad an opportunity to hear the testimony and observe the demeanor of the witnesses, the \nfollowing findings of fact and conclusions of law are made in accordance with Arkansas \nCode Annotated §11-9-704. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2. That  an  employer/employee/carrier relationship  existed  on November  15\nth\n, \n2021, and at all relevant times. \n   \n3. That the claimant has failed to satisfy the required burden of proof to show that \nshe sustained a gradual onset injury to her right ankle that was related to her \nwork. \n \n4. That, consequently, all other issues are moot. \n \n5. If not  already  paid,  the  respondents are ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The Prehearing Order, along with the prehearing questionnaires of the parties and \nthe claimant’s amended response to the prehearing questionnaire were admitted into the \n\nDECKER – H205903 \n \n3 \n \nrecord  without  objection.   The  claimant  submitted two (2) exhibits  that  were  admitted \nwithout objection.  The respondents submitted six (6) exhibits that were admitted without \nobjection. \n The husband of the claimant, Gabriel Don Decker, was called as the first witness.  \nHe testified that he had been with the claimant for twenty-two (22) years as of June 31.  \nHe testified that when she injured her foot at work, she would initially come home and \nstay off of it as much as possible.  She slowly had gotten worse and he would catch her \nin the driveway crying, before she would come into the house.  “So, you know, she was \nin  pain,  and  I  knew  something  was  wrong.    Sometimes,  she  tried  to  attribute  it  to  her \nfibromyalgia or other, you know things, just a bad day at work, things of that nature.  Now, \nshe’s – we can’t go to the store for long periods of time because she can’t walk around \nWalmart.  Her ankle swells.  She’s having to stay off of it.  She’s in pain more than her \nmedications help.” (Tr.pp. 7-8)  He went on to state that he’s doing about ninety percent \n(90%) of the housework at this point.  She had told him about twisting her ankle when she \nhad to transfer patients sometimes, and she would have to push them in a wheelchair by \nherself, because there was not enough staff to assist her. (Tr.p. 9)  She would have to \npush them across the street up an incline to the ER, where the patient would be admitted.  \n“She was wheezing so bad and just having problems herself” because the patient was so \nheavy that she was trying to get over there.  This happened on more than one occasion \nwhere she was required to push a two to three hundred (200 – 300) pound patient, one \nhundred (100) plus yards. (Tr.pp. 10-11)  \n Under cross-examination, Mr. Decker admitted that he had not worked at White \nRiver Heath Systems and that he was basing his testimony on what he had been told.  \n\nDECKER – H205903 \n \n4 \n \nHe testified that he had walked up the thirty percent (30%) grade when he had gone to \nhis  doctor.    The  patients  would  go  from  the  outpatient  building  to  the  ER.    He  further \ntestified that there was “not necessarily a specific incident.”  One time she came home \nand was hurting from doing it.  I mean, there’s not, you know, “she didn’t fall per say or \nyou  know,  come home and  state she  twisted  her  ankle  real  hard” or  something  very \nspecific.  There was not a specific single incident in his mind. (Tr.p. 13) \n The claimant, Tracy Decker, was then called.  She testified that she was born on \nMarch 17, 1969, and was fifty-four (54) at the time of the hearing and had been an RN for \ntwenty-four (24) years. (Tr.p. 15)  In regard to her working conditions, she testified that it \nwas normal to push patients in a wheelchair and on stretchers.  “That’s a normal given.  \nHelping from the bed to the wheelchair, whatever.”  She also discussed nurses going \nacross the street to the ER pushing a wheelchair by themselves or if using a stretcher, \nwith the help of another nurse.  She stated that she could not “put down like a specific \ntime” in regard to her injury.  “It was a gradual continual pain that would not go away.  I \nhave a lot of medical conditions, and I’m on a lot of medications, and this pain was still \nnot comforted.”  The pain was different than before going to work at White River.    She \nwent on to testify about the gradual pain in her ankle and “they did say I had a tear which \nI went to physical therapy for it.”  “I went to physical therapy afterwards, because I didn’t \npay attention to myself until I quit work there, and then I’m like, I’ve got to do something \nabout this leg.  It will not stop hurting.  This foot.  This ankle.  And I went to the doctor and \nthey said I had a tear and I went to physical therapy at that time.”  She stated that Doctor \nAgnel told her she had a torn ligament and sent her to physical therapy. (Tr.pp. 16-17)  “It \njust -- it was a gradual thing but there was areas that are not safe in that hospital which \n\nDECKER – H205903 \n \n5 \n \ncontributed to it not healing, or it getting worse you know.”   She talked about a specific \nincident where she had to push a 350 to 400 pound lady from the outpatient building to \nthe ER.  When I got to the ER with that lady, “I was just worn out, I -- my whole body hurt.  \nMy legs were throbbing.  I was wheezing.  So, I mean, if I hadn’t turned, you know, my \nankle had just gotten worse during a period of months.”  She  went  on  to  say  that  she \ndidn’t take care of it until she left the job. (Tr.pp. 18-19)  She thought that an RN was on \nher feet seventy to eighty percent (70% to 80%) of the time. (Tr.p. 21) \n Under  cross-examination,  the  claimant  testified  that  she  began  working  for  the \nrespondent  in  May  of  2019,  and  her  last  day  of  work  was  November  18,  2021.    The \nclaimant also agreed that she filed her Form C reporting her injury on August 9, 2022.  \nShe also admitted she had not reported the right ankle injury prior to her termination and \nthat when her deposition was taken, she had answered that she could not recall a specific \ninjury.    When questioned about  the  specific  incident  she  testified  to  on  the  day  of the \nhearing in regard to pushing the very heavy women and the fact that she did not mention \nit at the time of her deposition, she stated she did not recall it at the time of her deposition.  \nShe then testified that in regard to remembering the incident, she did not know where to \ntalk about it -- “didn’t know where to bring it up.” (Tr.pp. 22-24) \n She also admitted that she saw Dr. Sidiqui, a pain management doctor, and was \nasked  why  she  did  not disclose her  ankle  pain on  her  December 2021,  visit.    She \nresponded that she had so much pain throughout her body and that he didn’t really deal \nwith “orthopedic natures” and he focused on her back and neck. (Tr.p. 24)  She was also \nquestioned about seeing her primary care provider, Bobbi Tosh, an APRN, on October \n15, 2021, prior to leaving the respondent, and about the medical report making no mention \n\nDECKER – H205903 \n \n6 \n \nof  muscle  aches,  no  joint  pain,  no  swelling,  and  no  back  pain.    She admitted  that  the \nreport was read correctly.  She could not recall if she told Ms. Tosh about her ankle pain \nat  that  time.    She  also  agreed  that  a  medical  report  dated  November  8,  2021,  by  Ms. \nTosh, made no mention of muscle aches, joint pain, swelling, or back pain. (Tr.pp. 25-26)  \nShe went on to state that she did not focus on her ankle pain until December after she \nquit work.  “I had just wrote it off to a bad day at work, several times.  And when I finally \nquit work is when I finally turned and looked at myself to see how I could help myself be \nmore healthy.  And the ankle was one thing that was not going away.” (Tr.p. 27) \n The claimant was also questioned about seeing Dr. Boop, a neurologist, and the \nreport mentioned increased neck pain and headaches along with other issues but made \nno mention of an ankle issue.  The claimant thought that she had probably told him about \nthe  ankle  pain  because  she  would  fill  out  a  chart  in  regard  to  pain  when  seeing \nhim.  (Tr.p. 29)    She  was  also  questioned  about  seeing  Chelsey  Howell,  a  physical \ntherapist  who  saw her  for  treatment  of  her  ankle  pain.    The  claimant  admitted  that the \nreport, dated August 10, 2022, provided she was not currently working at the time of the \nreport due to IBS symptoms and this would have been one day after she had filed her \nclaim  for  compensation.   The  claimant  denied the accuracy  of  the report on  August  3, \n2022,  by  Ms.  Howell,  where  it  stated  that  she  could  walk  2  to  3 hours  without \npain. (Tr.pp. 30-31)  The claimant went on and stated “the right ankle does impact my \nability to do many other things.  So, it does -- to the scope of my whole body of being \ndisabled.” (Tr.p. 32) \n\nDECKER – H205903 \n \n7 \n \n On redirect, the claimant stated that Dr. Angel had stated her injury was a gradual \ninjury that would happen because the claimant was a nurse working hard and continually \nnot paying attention to herself. (Tr.p. 34) \n       The  claimant  submitted thirty-three  (33) pages  of  medical  records that  were \nadmitted as claimant’s exhibit one, along with the deposition of Gabriel Don Decker, the \nclaimant’s husband, as claimant’s exhibit two, without  objection.    The  medical  records \nprovided a right ankle radiology report dated December 30, 2021, which provided that no \nacute fracture or dislocation was seen.  An ER note dated January 17, 2022, provided the \nclaimant  presented  with  lower  extremity  pain  and also mentioned  right  hip  pain  while \nwalking.    A  CT  of  the  pelvis  occurred  on  the  same  date which provided  no  fracture  or \ndislocation of the pelvis was seen. (Cl. Ex. 1, PP. 2-7) \n The  claimant  presented  to  Bobbi  Tosh,  APRN, on  February  10,  2022,  and  the \nreport mentioned ankle pain, but stated that the onset of the ankle pain was February 13, \n2022.  The report mentioned a previous cough, and further stated that the pain in her right \nfoot had started a few months prior when standing for a long period of time.  (Cl. Ex. 1, \nPP. 8-12) \n The claimant saw Dr. Jeffery Angel on February 16, 2022, and the medical report \nreferred  to  right  ankle  swelling  and  instability.    The  report  went  on  to  mention  weight \nreduction and stated that the radiology exams were normal.  It also mentioned in regard \nto the right ankle that there was no tenderness to palpation and no swelling and no joint \ninstability.  The assessment provided for chronic pain of the right ankle with posterior tibial \ntendinitis of the right lower extremity. (Cl. Ex. 1, PP. 13-16)  An MRI of the right ankle was \ncompleted  on  February  27,  2022.    Under  impression,  the  report  provided  for a  mild \n\nDECKER – H205903 \n \n8 \n \nmarrow  signal  at  the  neck  of  the  talus  which  could  represent  a  stress  reaction  but  no \nassociated fracture, mild soft tissue edema, a thickening of the superior medical portion \nof  the  spring  ligament  complex  which  could  represent  chronic  sprain,  and  moderate \ntenosynovitis  of  the  peroneal  brevis  and  longus  tendons.  (Cl.  Ex.  1,  PP.  17-18)    The \nclaimant  then  returned  to  Dr.  Angel  on  March  2,  2022.    The  report  provided  that  the \nsymptoms from the last visit had not changed and that the right ankle pain symptoms had \ndeveloped spontaneously.  The pain was gradual in onset and was aggravated walking \nand with strenuous activity.  Under assessment, the report provided for a right contusion \nof the bone and a peroneus brevis sprain on the right. (Cl. Ex. 1, PP. 19-23) \n The claimant then returned to Bobbi Tosh, APRN, on March 28, 2022, and ankle \npain  was  mentioned along  with  the review of other  health  related  issues,  including \nhypertension, acid reflux, asthma, and fibromyalgia, among others. (Cl. Ex. 1. PP. 24-26)  \nThe claimant then returned to Ms. Tosh, APRN, on April 1, 2022, with the report again \nmentioning ankle  pain  with an onset  of  February  13, 2022, but  again mentioning other \nissues. (Cl. Ex. 1, PP. 27-28)  The claimant returned to Ms. Tosh, APRN, on May 3, 2022, \nfor another follow-up.  The report mentioned the assessment of a variety of health-related \nissues, including moderate persistent asthma, ankylosing spondylitis, hypertension, acid \nreflux, seasonal allergic rhinitis, sleep apnea, depressive  disorder, and ankle pain. (Cl. \nEx. 1, PP. 29-33)   \n The  respondents  filed  six (6) exhibits  without  objection.   It was  noted  that  the \nclaimant filed a Form AR- C on August 9, 2022, which stated she was required to be on \nher feet throughout the day to assist the doctor and the patients which caused a gradual \nonset injury. (Resp. Ex. 1)  The First Report of Injury provided that it was prepared on \n\nDECKER – H205903 \n \n9 \n \nAugust 15, 2022, and stated that it was a gradual onset injury that occurred on November \n15, 2021. (Resp. Ex. 2)  The respondents also submitted wage records. (Resp. Ex. 3) \n The respondents provided additional medical records which were made part of the \nrecord without  objection  as  Respondents  Exhibit  4.    The  first  medical  record  dated \nDecember 1, 2022, provided that the claimant was referred to Dr. Meraj Siddiqui with a \nchief  complaint  of  bilateral  shoulder  pain,  chronic  pain,  neck  pain  and  rib  pain.    No \nmention of ankle pain was made. (Resp. Ex. 4, PP. 2-5)  The respondents records also \nprovided that the claimant presented to Ms. Tosh multiple times from October 15, 2021, \nthrough February 10, 2022. (Resp. Ex. 4, PP. 6-32) \n The records also provided that the claimant presented to Dr. Angel on February \n28, 2022.  The MRI of the right ankle provided the joints aligned normally and no fracture \nwas suggested.  The medial ankle tendons were intact without evidence of tendinosis or \ntear.  There was a circumferential fluid signal that surrounded both the peroneus brevis \nand the peroneus longus tendons, which was likely tenosynovitis.  A partial split tear of \nthe peroneus brevis tendon was also noted at the level of the ankle.  The report further \nprovided that a thickening of the superior medial portion of the spring ligament complex \ncould represent chronic sprain. (Resp. Ex. 4, PP.33-34) \n The claimant presented to the Little Rock Diagnostic Clinic on May 24, 2022, for a \nfollow-up  for  neck  pain  and  migraines.    The  diagnostic description  was  for  cervical \nradiculitis and migraine with aura. The ankle was not mentioned in the report. (Resp. Ex. \n4, PP. 35-40) \n The  respondents  also  introduced  into evidence physical  therapy  records  for  the \nclaimant from July 18, 2022, through August 22, 2022.  The records provided Chelsey \n\nDECKER – H205903 \n \n10 \n \nHowell, DPT, provided the therapy as a result of a sprain to claimant’s right ankle due to \nthe claimant’s nursing job.  The claimant had been seen earlier in the year but was unable \nto  finish  the  therapy  due  to  taking  care  of  an  ill  family  member.    The  claimant’s \npresentation was consistent with the diagnosis of a right ankle sprain and chronic ankle \nsprain.  The reports provided that the claimant was making progress with her therapy, but \nthen  the  physical  therapist  missed  a  date due to  an  emergency  and  then  the  claimant \nreported  that  she  was  not feeling  well  and was  unable  to attend  the therapy.    The  last \ntherapy record provided that a therapy session was set up for August 30, 2022, and the \nclaimant failed to appear. (Resp. Ex.  4, PP. 41-71) \n The deposition of the claimant was also entered into the record without objection. \nDuring the deposition, the claimant admitted that she had allowed her license to lapse.  \n(Resp. Ex. 5, P. 13)  She testified that she did not recall when the injury occurred but that \nshe first became aware of the ankle injury in the fall of 2021. Her last day of work for the \nrespondent was November 18, 2021, and she thought that the injury to her right ankle \noccurred approximately two (2) months before.  She did not think that she complained to \nanyone at the respondents in regard to her ankle injury. (Resp. Ex 5, PP. 21-22)  She \nwas unable to remember a specific injury in regard to her right ankle. (Resp. Ex. 5, P. 24)  \nShe also admitted that the physical therapy that was ordered helped her. (Resp. Ex. 5, P. \n28)  The claimant also admitted to a cervical fusion in June of 2019, due to degenerative \ndisc disease, which was not related to work.  She also admitted to an incident in January \nof 2022, that involved her son in law where she was pushed off a three-step high porch \nand injured her hip. (Resp. Ex. 5, PP. 47-48)  \n\nDECKER – H205903 \n \n11 \n \n A copy of the Izard County Sherriff’s report in regard to the incident  was  also \nintroduced into the record without objection which included photographs and mentioned \nan altercation between the claimant and her son-in-law, on January 14, 2022. (Resp. 6) \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving, by a preponderance of the evidence, that she is entitled to compensation benefits \nfor  the  injury  to her right ankle under the Arkansas Workers’ Compensation Law.  In \ndetermining  whether  the  claimant has  sustained her burden  of  proof,  the  Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party.  \nArk. Code Ann. §11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \nHere, the claimant asked the Commission to determine if she suffered a gradual \nonset injury to her right ankle on or about November 15, 2021.  Arkansas Code Annotated \n§11-9-102(4)(A)(ii) states, in relevant part, that injuries that occur over a period of time \nand are not the result of a specific incident occurring at an identifiable time and place are \nnot  compensable  unless  they  are  caused  by  rapid  repetitive  motion.  To  be  awarded \nbenefits for a gradual onset injury, the claimant must prove several things: (1) the injury \narose out of and in the course of employment; (2) the injury caused internal or external \nphysical  harm  to  the  body,  which  required  medical  services  or resulted  in  death  or \ndisability; (3) the injury was caused by rapid repetitive motion; (4) the injury was the major \ncause  of  the  disability  or  need  for  treatment;  and  (5)  the  injury  was  established  by \n\nDECKER – H205903 \n \n12 \n \nobjective  medical  findings.    A.C.A. §11-9-102(4)(D).    Also  see, Malone  v.  Texarkana \nPublic Schools, 333 Ark. 343, 969 S.W. 2d 644 (1998) and Hapney v. Rheem Mfg. Co. \n342 Ark. 11, 26 S.W.3d 777 (2000).  Arkansas courts have set out a two-pronged test for \nsuch cases as the matter at bar.  The claimant must engage in tasks that are repetitive \nand  the  repetitive  motion  must  be  rapid.    See Malone, supra.    Arkansas courts  have \nfurther determined that as a threshold issue, the tasks must be repetitive or the rapidity \nissue is not reached.  Certainly, even repetitive tasks and rapid work, taken alone, will not \nsatisfy the definition.  Repetitive tasks must be completed rapidly. It is also noted that a \ncompensable  injury  must  be  established  by  medical  evidence  supported  by  objective \nfindings. A.C.A. §11-9-102(4)(D).  “Objective findings” are those findings which cannot \ncome under the voluntary control of the patient.  A.C.A. §11-9-102(16)(A)(i)  \nIn the present matter, there is no question that the claimant, while working as a \nnurse,  was  required  to  push  patients  (some  who  were  extremely  heavy)  on  multiple \noccasions up a hill from the outpatient center to the ER when the patient would have to \nbe  admitted due  to  complications.    There  is  no  question  that  this  was  a  difficult  task, \nespecially at times when additional staffing would have assisted the situation.  However, \nthe elements of the claimant’s work, however difficult, do not meet the legal standards set \nforth by the Arkansas courts for a finding that the claimant suffered a gradual onset injury.  \nTasks  that  are  repetitive  must  also  be  completed  rapidly  and  this  did  not  occur  in  the \npresent matter before the Commission.  Further there are no specific objective findings \nthat these activities led to the injury of the right ankle.  It is also important to note that the \nclaimant’s testimony is never considered uncontroverted.  Lambert v.  Gerber  Products \nCo.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  Consequently, there is no alternative but \n\nDECKER – H205903 \n \n13 \n \nto find that the claimant has failed to prove, by a preponderance of the evidence, that she \nsuffered a compensable gradual onset injury to her right ankle on November 15, 2021. \nBased upon the available evidence in the case at bar, without giving the benefit of \nthe doubt to either party, there is no alternative but to find that the claimant has failed to \nsatisfy the required burden of proof to show that the claimed right ankle injury is in fact \nwork  related and compensable  under  the  Arkansas  Workers’  Compensation Act.  \nConsequently, all other issues are moot. If not already paid, the respondents are ordered \nto pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":24258,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205803 TRACY D. DECKER, EMPLOYEE CLAIMANT VS. WHITE RIVER HEALTH SYSTEM, INC. EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, CARRIER, TPA RESPONDENT OPINION FILED MARCH 26, 2024 Hearing before Administrative Law Judge, James D. Kennedy, on the 21 st day of...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["ankle","back","neck","fracture","hip","sprain","shoulder","cervical"],"fetchedAt":"2026-05-19T22:56:51.519Z"},{"id":"alj-H207790-2024-03-26","awccNumber":"H207790","decisionDate":"2024-03-26","decisionYear":2024,"opinionType":"alj","claimantName":"John Omalley","employerName":"Baywood Colony Horizontal Property","title":"O’MALLEY VS. BAYWOOD COLONY HORIZONTAL PROPERTY AWCC# H207790 MARCH 26, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/OMALLEY_JOHN_H207790_20240326.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OMALLEY_JOHN_H207790_20240326.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION  \n \n CLAIM NO. H207790  \n  \n \nJOHN E. O’MALLEY,   \nEMPLOYEE                                                                                                                    CLAIMANT   \n \n                                                                                                           \nBAYWOOD COLONY HORIZONTAL PROPERTY,  \nEMPLOYER                                                                                                              RESPONDENT \n \nFIRSTCOMP INSURANCE COMPANY, \nINSURANCE CARRIER                                                                                          RESPONDENT                                     \n \nMARKEL SERVICE, INC.,  \nTHIRD PARTY ADMINISTRATOR                                                                       RESPONDENT                                                                                            \n  \n \nOPINION FILED MARCH 26, 2024    \n  \n \nA hearing was held before Administrative Law Judge Chandra L. Black, Garland County, Hot \nSpring, Arkansas.  \n  \nClaimant represented by the Honorable Laura Beth York, Attorney at Law, Little Rock, Arkansas.     \n  \nRespondents represented by the Honorable Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas.  \n   \n                                                 STATEMENT OF THE CASE  \n  \nA hearing was held in  the above-styled claim  on October 27, 2023, in Hot Springs, \nArkansas.  A prehearing telephone conference was held in this matter on September 13, 2023.  A \nprehearing order was entered on that same day.  This prehearing order set forth the stipulations \nproposed by the parties, their contentions, and the issues to be litigated.  \n                  STIPULATIONS \nThe parties submitted the following stipulations, either pursuant to the prehearing order, or \nat the hearing.  I hereby accepted the following proposed stipulations as fact:  \n\nO’MALLEY – H207790  \n  \n  \n2  \n  \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n \n2. That the employee-employer-carrier relationship existed at all relevant times including \non or about October 1, 2022, when the Claimant allegedly sustained a compensable \ninjury to  his right  shoulder in  the  course  and  scope  of his  employment  with  the \nrespondent-employer/Baywood Colony Horizontal Property. \n \n3. The Claimant’s average weekly wage on October 1, 2022, was $1,019.23.  His weekly \nrate for temporary total disability (TTD) benefits is $679.00; and his rate for permanent \npartial disability (PPD) compensation is $509.00. \n \n4. The Respondents have controverted this claim in its entirety. \n \n5. All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nAct.  \n     \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing were as follows:  \n1. Whether the Claimant sustained a compensable right shoulder injury in the course and \nscope of his employment with the respondent-employer on October 1, 2022. \n \n2. Whether the Claimant failed to give timely notice of his shoulder injury to his employer \nuntil October 13, 2022. \n \n3. Whether the Claimant is entitled to both current and future reasonable and necessary \nmedical benefits for his shoulder condition pursuant to Ark. Code Ann. §11-9-508 (a). \n \n4. Whether the Claimant is entitled to temporary total disability benefits for his right   \nshoulder condition in the event surgery is awarded for his injury. \n \n5. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n \n  The respective contentions of the parties are as follows:       \n  \nClaimant:  \n  \n  The Claimant contends that on October 1, 2022, he fell while in the scope and course of \nemployment, injuring his right shoulder.  He was sore but tried to ignore it, and he continued to \n\nO’MALLEY – H207790  \n  \n  \n3  \n  \nget worse.  A week later, the Claimant was pulling a cord in the scope and course of employment, \nwhen he experienced excruciating pain in his right shoulder.  The Respondents denied the case in \nits entirety.  An MRI revealed a tear in his right shoulder and surgery was recommended.   \n   The Claimant contends that he sustained a compensable right shoulder injury in the course \nand scope of his employment and that he is entitled to TTD, medical benefits, and that his attorney \nis entitled to an attorney fee. \n   All other issues are reserved.  \nRespondents:  \n  \nRespondents contend that Claimant did sustain any injury within the course and scope of \n \nhis employment. The Respondents further contend that the Claimant did not timely report the \nalleged on the job injury.  The Respondents had the Claimant’s medical records reviewed by Dr. \nOwen L. Kelly who opined that Claimant suffers from pre-existing degenerative condition of the \nright  shoulder.  (See  attached).    The Respondents  contend  that  Claimant’s  right  shoulder \ncomplaints are related to a pre-existing degenerative condition.       \n \n                     FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear the testimony of both witnesses and observe their respective demeanor, I hereby make the \nfollowing findings of fact and conclusions of law in accordance with Ark. Code Ann. §11-9-704 \n(Repl. 2012): \n1.      The Arkansas Workers’ Compensation Commission has jurisdiction over this \n     claim. \n \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n \n\nO’MALLEY – H207790  \n  \n  \n4  \n  \n3.      The Claimant proved by a preponderance of the credible evidence that he sustained                           \n a compensable right shoulder injury October 1, 2022, while in the course and scope   \nof his employment with the Respondent-employer. \n   \n          4.          The Claimant did not give his employer notice of his right shoulder injury until   \n     October 14, 2022.  Therefore, the Respondents are not liable for any benefits that  \n     accrued prior to this time.  \n \n          5.          The Claimant proved by a preponderance of the evidence that all of the medical  \n           treatment of record was reasonable and necessary medical treatment for his right  \n           shoulder injury of October 1, 2022, as well as the rotator cuff repair surgery   \n           recommended by Dr. Micheal Hubbard. \n     \n          6.         The Claimant is entitled to temporary total disability during a reasonable recovery  \n           period after his surgery, for which his attorney will be entitled to a controverted     \n          attorney’s fee.  \n          \nSummary of Evidence \n \nMr. John E. O’Malley (referred to herein as the “Claimant”), and his wife, Mrs. Rita \nO’Malley both testified on behalf of the Claimant during the hearing.  \n            The record consists of the October 27, 2023 hearing transcript and the following exhibits: \nSpecifically, Commission’s Exhibit 1 comprises the Commission’s Prehearing Order filed on \nSeptember 13, 2023 and the parties’ responsive filings; Claimant’s Exhibit 1 includes a Medical \nSummary Report and medical records consisting of nine pages, which were marked accordingly; \nand the Respondents’ Medical Exhibit comprises a letter authored on November 1, 2022 by Dr. \nOwen L. Kelly, consisting of two pages has been marked Respondents’ Exhibit 1. \n                  Procedural History  \nThe Claimant confirmed that he is sixty-nine years of age.  He completed high school.    \nAccording to the Claimant, he has worked in the trades most of his life.  Specifically, the Claimant \ntestified that he has done carpentry work and slowly gotten into making cabinets and various other \nitems.  The Claimant agreed that he has been solidly employed for his entire life.  \n\nO’MALLEY – H207790  \n  \n  \n5  \n  \n  He testified that he started working for Baywood Colony about three weeks before he was  \nsupposed to start, which was sometime in May or June of 2022.  The Claimant testified that his \njob there included a lot of maintenance-type work.  His employment duties included electrical \nwork, rebuilding the pumps on the pool, landscaping, mowing, and everything to keep the property \nrunning properly.  He testified that Baywood Colony is a pretty big complex.  It includes twenty-\neight townhouses and a house.  The Claimant testified that there are a lot of hills on the property.  \nAs part of the Claimant’s package deal with Baywood Colony, he was allowed to live in the house.         \n  Regarding his alleged injury on October 1, 2022, the Claimant explained: \nA  I was in the back behind Jim and Lesley’s and there’s a hill there, and I was \nWeed whacking on the hill, and I lost my footing and came down.  Like I explained \nto Randy the last time I met him, I actually got up, that I can remember, and I went \nto pull the rope ..... I went up on the sidewalk to pull the rope on the weed whacker \nto get it started again, and I went, oh, geez, I couldn’t do it, so I called my wife and \nI said why don’t you come back here, so I didn’t do any more weed whacking after \nthat, but I thought I just got a stinger when I fell.  You know what I mean, it’s a \nbruised shoulder, that’s all.  I mean, people who have played football know what \nstingers are, you know, when you come down on your shoulder and that’s all I \nthought it was.  Am I carrying on too much?     \n \n   The Claimant denied ever having a prior problem with his right shoulder.  He went on to \nexplain that prior to his injury, he hung seventy-two sheets of drywall with his wife on the ceiling.    \nAccording to the Claimant, they flipped a house right before that and they did all the work on it, \nand he never had any issue with his right shoulder.   \n  He admitted that when he fell, he injured his right shoulder.  The Claimant confirmed he is \nright-handed.  The Claimant admitted that when he called his wife, she came over to help him.  \nThe Claimant testified that when he slipped and fell, he slid down the hill, injuring his right \nshoulder.  He denied injuring any other body part. The Claimant admitted that he continued \nworking for the rest of the day, but he just rode the lawnmower.  According to the Claimant, he did \nnot really think much of his shoulder until his daughter came over and suggested he have it looked   \n\nO’MALLEY – H207790  \n  \n  \n6  \n  \nat because it could be something that would not resolve on its own.  At that time, the Claimant, his \ndaughter, Meghan O’Malley, worked for an orthopedic surgeon, Dr. Hubbard.  However, his \ndaughter no longer works for Dr. Hubbard.  Currently, she works in the labor and delivery area at \nthat hospital.  The Claimant confirmed that his daughter holds a Bachelor of Science degree in \nnursing (BSN).  According to the Claimant, his daughter suggested he have his shoulder checked \nout because he told her that he had limited range of motion, and that it was “real sore.”  He testified \nthat if his daughter had not said something, he would have given it a long time to heal because as \nfar as he was concerned, it was a bruise. \n  The Claimant first sought medical treatment for his right shoulder on October 13, 2022.  At \nthat time, he saw Dr. Michael Hubbard.  He reported to Dr. Hubbard that he had fallen on his right \nshoulder about two weeks ago.  At that time, the Claimant complained of right shoulder pain.  X-\nrays were taken of the Claimant’s right shoulder.  The radiographic findings were: “No fracture \nand no dislocation, small bone fragment noted in the subacromial space.”   The Claimant reported \nto  Dr.  Hubbard  that  the  quality  of  his  pain  was  throbbing,  sharp,  constant,  and  worsening.                                    \nDr. Hubbard opined that the Claimant’s right shoulder had signs and symptoms for “a full thickness \nrotator cuff tear.”  Therefore, Dr. Hubbard recommended an MRI of the Claimant’s right shoulder \nand after that he directed the Claimant to see him back in clinic. \n  An MRI was performed of the Claimant’s right shoulder.  The Claimant agreed that the \nMRI revealed a full thickness tear of the rotator cuff.  Also, the Claimant testified that that Dr. \nHubbard mentioned something about tendons retracting, which is not good when they retract.  He \nconfirmed that once the results of the MRI were confirmed, they recommended that he get it taken \ncare of right away because it was not going to get much better and he would be extremely limited.  \nAs a result, Dr. Hubbard scheduled the Claimant for right shoulder rotator cuff repair surgery.       \n\nO’MALLEY – H207790  \n  \n  \n7  \n  \n  Specifically, my review of the medical evidence demonstrates that the Claimant underwent \nan MRI of the right shoulder on October 20, 2022.  The radiologist reading the MRI was Dr. Steven \nWeiner.  His impression was: “1.  Complete full-thickness tear with tear of the supraspinatus \ntendon with retraction of the tendon. 2.  Partial intrasubstance tear of the infraspinatus tendon, with \nmild tendinosis of the subscapularis tendon.  3. Indistinct extra-articular long head of the biceps \ntendon, possibly torn and/or displaced. 4.  probable degeneration of the glenoid labrum.  5. Small \nglenohumeral join effusion.  6.  Moderate to severe arthritic disease of the AC joint.”   \n  The Claimant testified that he discussed his shoulder injury with his employer the next day \nafter seeing Dr. Hubbard on October 13, 2022.  He testified that he called Cindy Feltus on October \n14, 2022, and she was not sure if they had workers’ compensation insurance.  According to the \nClaimant, this went on and on, and he kept calling Cindy, so finally he called a person by the name \nof Gene Adams, who is a lawyer, and he happens to live in a condominium on the property.  The \nClaimant testified that once Mr. Adams got involved then things were done.  According to the \nClaimant, he found out from the bookkeeper, Joy Gray, that they had insurance.   At that point, he  \ncalled  the  insurance  company  himself  after  receiving  the  information  from  Ms.  Gray.  He \nconfirmed that Mr. Adams is also a member of the board.  The Claimant testified that there are \nthree board members, and they hired him.     \n  According to the Claimant, he was scheduled for surgery, a couple of weeks after the MRI \nbut the workers’ compensation carrier denied the surgery.  The Claimant admitted that he was able \nto raise his arm prior to his injury.  Now, he testified that it is very painful when he raises his arm.  \nPer the Claimant, he hung drywall from the ceiling, and screwed in all the sheets.  The Claimant \ntestified that previously he used a hammer and pounded nails in the ceiling.  He is now unable to \ndo that.  The Claimant denied ever seeing Dr. Owen Kelly or speaking with anyone from his office.  \n\nO’MALLEY – H207790  \n  \n  \n8  \n  \nHe specifically denied that Dr. Kelly ever examined him.  The Claimant admitted that a few ago \nyears, Dr. Farbstein, a physician in the Chicago area, told him he had arthritis, but he never gave \nit any thought because he never had an issue, ever.  He denied that he had a general complaint of \npain in his shoulder when he saw the doctor in Chicago.   Instead, at that time, the Claimant testified \nthat he sought treatment from him because he has diabetes.  He admitted that he had some tests \ndone, and then the doctor asked if he knew he had arthritis.  The Claimant admitted that he feels \nstiff every now and then but that is part of growing old.   \n  He specifically denied that he ever had any prior complaints with his right shoulder or \nhaving seen a surgeon for right shoulder complaints.  The Claimant denied that he sought prior \ntreatment for right shoulder pain before his work-related accident.  He also denied ever having any \ntrouble hanging drywall before his work-related accident. \n  The Claimant admitted that Cindy terminated him right before (a couple of days or so) his \nsurgery was supposed to take place.  According to the Claimant, his surgery was supposed to be \naround November 1, 2022, on a Friday.  As a result, the Claimant and his wife moved back into \nthe house that they had been working on for several years.  The Claimant testified that he was \nshocked that Cindy was terminating him.  He further testified that he thought she would have more \ncompassion.  However, she gave him two weeks to get out of the house.  He confirmed that he was \nworking at St. Mary’s Church at the time of his termination.  The Claimant explained he was able \nto work at Baywood because they started real early in the morning and his wife helped him to do \na lot of the work.  He confirmed that he worked at St. Mary’s only one day of the week, depending \non what needed to be done.  The Claimant stopped working there because he realized his shoulder \nwas hurt.  He was unable to climb a ladder and he could only watch to make sure things were being \ndone correctly.  The Claimant testified that he donated a lot of time to St. Mary’s.  According to \n\nO’MALLEY – H207790  \n  \n  \n9  \n  \nthe Claimant, about 50% of the work he did there was as a volunteer.  He could not recall when \nSt. Mary’s started paying him again following his injury.  The Claimant testified that he had been \noff work for a couple of months before he returned to work at St. Mary’s because it was a couple \nof months before he could lift his arm.  He confirmed that he did his own home therapy.  The \nClaimant agreed that it could have been in January 2023 when he returned to work for St. Mary’s.  \nThe Claimant currently works for St. Mary’s and St. John’s.   \n  The Claimant confirmed that he would like to have the surgery done.  He has plans to \ncontinue working until the day he dies.  The Claimant stated that he wants to have the surgery done \nbecause he could lose about fifteen percent of the use of his shoulder, and he does not want to have \na problem with that being an issue.  He testified that he has constant pain when he is trying to do \nsomething.  According to the Claimant, there are certain things that he has to do with his left hand \nnow.  The Claimant confirmed that he is asking for the Commission to approve the recommended \nsurgery.         \n  On October 27, 2022, the Claimant saw Jennifer Jones, APRN, in clinic for follow-up of \nhis right shoulder MRI.  At that time, both conservative and surgical intervention were discussed.  \nThe  Claimant opted  to  proceed with  surgery.  Therefore, Jones  planned “a right shoulder \narthroscopy with subacromial decompression, distal clavicle excision, rotator cuff repair biceps \ntenodesis.”       \n  Basically, on cross-examination the Claimant testified that he could not affirm or deny he \nbegan working for Baywood Colony on August 15, 2022.    He testified that the incident occurred \na couple of weeks prior to his first doctor’s visit, which would put it around October 3 because he \nwas on vacation, and they had to wait for him.  The Claimant confirmed that he renegotiated his \nagreement on October 3, with Cindy.  According to the Claimant, Cindy is the President of the \n\nO’MALLEY – H207790  \n  \n  \n10  \n  \nBoard, and she was the only person he ever spoke to about that.  However, the Claimant admitted \nthat he did not mention anything to her during their renegotiation process.  Per the Claimant, he \ndid not mention his shoulder to Cindy because he was sure he was going to get better.  He \nconfirmed he did not realize he was injured to the extent that he was until he had the x-rays, and \nthe MRI that Dr. Hubbard had ordered and read.  \n  The Claimant was asked about a report authored by Dr. Hubbard on October 13, 2022.  At \nthat time, the Claimant gave a history of having fallen about three years ago, which would have \nrendered an injury date around the latter part of September.  He explained that he was never sure \nof the exact time date of his injury.   \n  Once both diagnostic tests had been performed, the Claimant testified that he told Cindy \nFeltus he had fallen at work and needed surgery.  He confirmed that there are no human resource \npeople, they are property owners who are part of the Board of Director.   The Claimant confirmed \nthat he was scheduled for surgery on November 15, 2022.  He admitted that he had not been taken \noff work by Dr. Hubbard.  The Claimant also admitted that Dr. Hubbard has not placed any \nrestrictions or limitations on his work.            \n  The Claimant testified that after he reported his injury to Cindy Feltus, she spoke with some \nindividuals with workers’ compensation knowledge, including the attorney and they gave him the \ncontact information.  He admitted that he took it upon himself to call the bookkeeper, Joy Gray \nbecause he figured she would know since she pays all the bills.  He admitted that Dr. Hubbard \nsuggested he attempt to have his surgery performed and covered by Medicare.  His response, “Why \nshould Medicare pay when they have insurance?  That’s not their responsibility.  It’s not Medicare’s \nresponsibility.”  He confirmed that he had seen Dr. Hubbard twice, and then he dealt with the nurse \npractitioner. \n\nO’MALLEY – H207790  \n  \n  \n11  \n  \n  Mrs. Rita O’Malley, the Claimant’s wife of forty-six years testified on behalf of her \nhusband.   She confirmed that her husband called her after his fall.  Mrs. O’Malley testified that \nwhen she got there, the Claimant was over by the pool.  He was sitting on the landscape blocks, \nand he had dirt all over his head and down his right side.  Mrs. O’Malley testified that the Claimant \n“was shaken up” a little bit.  She testified that the Claimant tried to start the weed whacker again, \nbut he could not pull the cord at all with his right arm.  Mrs. O’Malley did not recall the date of \nher husband’s accident.  However, she agreed that October 1 was a reasonable date for when this \ninjury occurred.  \n  She denied that the Claimant ever complained of right shoulder pain prior to his injury.  \nMrs. O’Malley further denied that she had observed her husband experiencing any right shoulder \npain prior to that date.  However, she testified that after the Claimant’s injury, he did not do very \nmuch.  He tried mowing the lawn on the day of his injury, but the lawnmower jarred his arm \nbecause it is hilly around that area.  She also testified that he did not do anything the rest of the \nday, because he was sore.  According to Mrs. O’Malley, the Claimant kind of sat and held his arm \na few days and he did not really say anything because he does not complain.  She confirmed that \ntheir daughter came over and suggested he have it looked at.  Mrs. O’Malley did not recall when \nthey moved out of the condominium at Colony, but she recalled it being after Thanksgiving.          \n     On November 1, 2022, Dr. Owen Kelly opined, in relevant part, after reviewing the \nClaimant’s medical records and imaging:    \n  Mr. O’Malley has finding consistent with chronic degenerative tear of the rotator \ncuff.  The tendon is retracted to the mild portion of the humeral head which confers and is \nconsistent with chronicity.  This finding is not typically seen in an acute injury.   \n The acromioclavicular  joint  arthritis  is  definitely  chronic.   The  subscapularis \npathology  along  with  the  associated  biceps  findings  are  nearly  always  found  to  be \nchronic/degenerative.   \nMr. O’Malley’s treating physician has coded the rotator cuff tear as ICD10 code \nM75.121 which is nontraumatic. \n\nO’MALLEY – H207790  \n  \n  \n12  \n  \nAlthough the fall cannot be ruled out as the source of completing an already \ndiseased/torn rotator cuff, the other findings are definitely degenerative.  It is unlikely the \nfall caused these findings.  This is confirmed by the objective imaging.     \n       \n                             ADJUDICATION  \nA. Compensability    \nArkansas  Code  Annotated §11-9-102(4)(A)(i)  defines  compensable  injury  as  “[a]n \naccidental injury causing internal or external physical harm to the body . . . arising out of and in \nthe course of employment and which requires medical services or results in disability or death.  An \ninjury is accidental only if it is caused by a specific incident and is identifiable by time and place \nof occurrence.”   \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2019).  “Objective findings” are those findings \nthat cannot come under the voluntary control of the patient.  Ark. Code Ann. § 11-9-102(16)(A)(i).  \nComplaints of pain are not considered objective medical findings.  Ark. Code Ann. § 11-9-\n102(16)(A)(ii)(a).    \nIf  the  Claimant  does  not  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements for establishing compensability, compensation must be denied.  Id. This standard \nmeans the evidence that has greater weight or convincing force.  Metropolitan Nat ’l Bank v. La \nSher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003) (citing Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947)).    \nA causal relationship may be established between an employment-related incident and a \nsubsequent  physical  injury  based  on  the  evidence  that  the  injury  manifested  itself  within  a \nreasonable period of time following the incident, so that the injury is logically attributable to the \n\nO’MALLEY – H207790  \n  \n  \n13  \n  \nincident,  where  there  is  no  other  reasonable  explanation  for  the  injury.   Hall  v.  Pittman \nConstruction Co., 234 Ark. 104, 357 S.W.2d 263 (1962).   \nA review of the evidence demonstrates that the Claimant  proved by a preponderance of the \nevidence that he sustained a compensable specific incident injury to his right shoulder during and \nin the course of his employment with the respondent-employer on October 1, 2022 and that the \ninjury has caused external physical harm to his body which required medical services and resulted \nin disability.    \nThe Claimant credibly testified he sustained an accidental injury to his right shoulder on \nOctober 1, 2022, while working on landscaping at Baywood Colony.  He credibly testified that he \nwas pulling on the rope of a weed whacker when he slipped on a hill and fell on his right shoulder.  \nThe Claimant testified that he thought he had sustained a stinger/bruise to his right shoulder, and \nit would heal in time.   \nImmediately after his fall, the Claimant called his wife, and she came over and assisted \nhim.   The Claimant’s account of the incident is credible and corroborated by the medical evidence \nof record and his wife’s testimony.  There was no evidence presented by the Respondents to the \ncontrary concerning the Claimant’s account of the mechanism of his accidental injury of October \n1, 2022.  Of note, the Claimant was not sure of the exact date of injury.  However, it is well \nestablished under Arkansas workers’ compensation law that the Claimant does not have to provide \nthe precise date of an injury. \nNevertheless, the Claimant testified that he thought he had a stinger, which would resolve \non its own.  His testimony demonstrates that he continued with problems involving his right \nshoulder.  A few days later, the Claimant told his daughter, who is a nurse, about his shoulder, and \nshe suggested he have it checked out.  On October 13, the Claimant sought treatment from Dr.  \n\nO’MALLEY – H207790  \n  \n  \n14  \n  \nHubbard, and he performed x-rays of the Claimant’s right shoulder, which revealed “a possible \nrotator cuff tear.”   The Claimant essentially testified that he reported the incident to his employer \nthe next day.  His testimony demonstrates that he reported his injury to Cindy Feltus.   \nThe Claimant provided a history to Dr. Hubbard of having injured himself at work as \npreviously described.  Since his work-related injury, the Claimant has consistently complained of \nright shoulder pain and limited range of motion in his upper extremity.  However, prior to his work-\nrelated injury, the Claimant had not complained of any type of symptoms to his right shoulder.  In \nfact, his testimony shows that although the Claimant is almost 70 years old, he was able to hang \ndrywall and perform other laborious activities without any type of problems with his right shoulder.  \nMoreover, the Claimant testified that he had not ever sustained a prior injury to his right shoulder.  \nNor had the Claimant ever previously sought any medical treatment for his right shoulder.  On the \nother hand, since his work-related fall, the Claimant has consistently complained of right shoulder \npain and other related symptoms, which has resulted in limited use of his left arm.   \nUnder  these  circumstances, although  the  Claimant  suffered  pre-existing  degenerative \ndisease, this condition was asymptomatic.  Thus, I am persuaded that the majority of the medically \nobjective measurable physical findings demonstrated on the October 20, 2022, MRI resulted from \nthe Claimant’s work-related fall of October 1, 2022.  As such, the Claimant’s right shoulder injury \nis established by medical evidence supported by objective findings revealed on the MRI of his \nright shoulder, which was taken on October 20, 2022.  Specifically, the MRI of the Claimant’s left \nshoulder included objective and measurable findings of “a complete full-thickness tear with tear \nof the supraspinatus tendon with retraction of the tendon.” \nIt is noteworthy that even Dr. Kelly opined that the Claimant’s work-related fall cannot be \nruled out as the source of completing an already diseased/torn rotator cuff.  However, he went on  \n \n\nO’MALLEY – H207790  \n  \n  \n15  \n  \nto opine that it is unlikely the fall caused these findings.  Hence, due to all of the above reasons, I  \nhave attached minimal weight to Dr. Kelly’s opinion.   \nTherefore, due to all of the foregoing reasons, I find that the Claimant has established by a \npreponderance of the evidence all of the elements necessary to establish a compensable right \nshoulder injury on October 1, 2022.       \nB.  Notice of injury \n                Notice of injury or death per Ark. Code Ann. §11-9-701 reads: \n(a)(1) Unless an injury either renders the employee physically or mentally unable \nto do so, or is made known to the employer immediately after it occurs, the \nemployee shall report the injury to the employer on a form prescribed or approved \nby the Workers’ Compensation Commission and to a person or at a place specified \nby the employer, and the employer shall not be responsible for disability, medical, \nor other benefits prior to receipt of the employee’s report of injury.... \n \n(b)(1) Failure to give the notice shall not bar any claim: \n(A) If the employer had knowledge of the injury or death.  \n(B) If the employee had no knowledge that the condition or disease arose out of and \nin the course of the employment; or \n(C) If the commission excuses the failure on the grounds that for some satisfactory \nreason the notice could not be given. \n  \nThe Respondents contend that they did not receive timely notice of the Claimant’s injury.  \nThe Claimant readily admitted that he did not notify Cindy Feltus, Property Owner’s Association \nBoard, of his injury until the following day after his medical appointment with Dr. Hubbard, after \ndiscovering he had a more severe injury than he thought he had sustained.  Medical records \ndemonstrate that the Claimant first underwent evaluation by Dr. Hubbard on October 13, 2022.  \nThat is  based on  the  testimony  of  the Claimant  and  the date  of  service  on  the medical \ndocumentation of the Claimant’s first evaluation by Dr. Hubbard.  The evidence before me shows \nthat the Claimant provided Baywood Colony notice of his injury on October 14, 2022. \n\nO’MALLEY – H207790  \n  \n  \n16  \n  \nThe record fails to establish the existence of any statutory grounds for excusing notice to \nthe employer prior to that date.  Therefore, the Respondents are not liable for any indemnity or \nmedical benefits on this claim prior to October 14, 2022.  Since the Claimant reported his injury \nafter his medical appointment of October 13, the Respondents are not liable for the medical \nservices received by the Claimant on this date, which occurred with Dr. Hubbard.    \nC. Reasonable and Necessary Medical Treatment \n  An employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn. § 11-9-508(a).   \nOn the basis of the record as a whole, and after reviewing the evidence in this case \nimpartially, without giving the benefit of the doubt to either party, I find that all of the medical \nevidence of record is causally related to the Claimant’s right shoulder compensable injury of \nOctober 1, 2022.  Dr. Hubbard has recommended that the Claimant undergo surgical intervention \nfor repair of his rotator cuff.  This modality of treatment is reasonable and necessary to repair the \nClaimant’s right shoulder rotator cuff tear injury.    \nIn this regard, prior to the Claimant’s accidental work-related injury of October 1, 2022, \nthe Claimant had not had any problems or treatment for his right shoulder injury.  It was not until \nafter the Claimant’s compensable injury that surgery was recommended for his shoulder.  Although \nthe Claimant suffered pre-existing degenerative disease, this condition was asymptomatic.  In fact, \nthe Claimant was able to engage in various laborious activities, including but not limited to \nhanging sheetrock.  I therefore further find that the Claimant has sustained his burden of proving \nby a preponderance of the evidence that all the medical treatment of record is reasonably necessary \n\nO’MALLEY – H207790  \n  \n  \n17  \n  \nin connection with the compensable injury he received on October 1, 2022, namely, to his right \nshoulder. \nThe Respondents are therefore liable for this medical treatment of record.  However, based \non the above finding concerning notice, the respondents are not liable for the medical care that the \nClaimant received on October 1, 2022.  (See above discussion regarding Notice).    \nD. Temporary Total Disability Benefits \nWith respect to the Claimant’s shoulder injury, this is an unscheduled injury.  An injured \nemployee  who  suffers  an  unscheduled  injury  is  entitled  to  temporary  total  disability \ncompensation during the time that he is within his healing period and totally incapacitated to \nearn wages.  Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. \n244, 613 S.W. 2d 392 (1981).  The healing period ends when the underlying condition causing \nthe disability has become stable and nothing further in the way of treatment will improve that \ncondition.  Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W. 2d 582 (1982). \nThe Claimant will be entitled to temporary total disability compensation following his \nsurgery with Dr. Hubbard.  In this regard, the Claimant is entitled to these benefits for a \nreasonable recovery period of time as established by Dr. Hubbard following his right shoulder \nrotator cuff repair surgery.           \n                                  AWARD  \n  \nIn accordance with the findings of fact and conclusions of the law set forth above, the  \n \n \n \n\nO’MALLEY – H207790  \n  \n  \n18  \n  \nRespondents are directed to pay the award on this claim for a right shoulder injury of October 1, \n2022.    \nIT IS SO ORDERED.  \n                            _______________________________  \n              HON. CHANDRA L. BLACK     \n            ADMINISTRATIVE LAW JUDGE","textLength":35740,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207790 JOHN E. O’MALLEY, EMPLOYEE CLAIMANT BAYWOOD COLONY HORIZONTAL PROPERTY, EMPLOYER RESPONDENT FIRSTCOMP INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT MARKEL SERVICE, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MARCH 26, 2024 A hearing w...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["shoulder","rotator cuff","back","fracture"],"fetchedAt":"2026-05-19T22:56:53.627Z"},{"id":"full_commission-H207041-2024-03-25","awccNumber":"H207041","decisionDate":"2024-03-25","decisionYear":2024,"opinionType":"full_commission","claimantName":"Kenneth Williams","employerName":"Malvern School District","title":"WILLIAMS VS. MALVERN SCHOOL DISTRICT AWCC# H207041 MARCH 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Williams_Kenneth_H207041_20240325.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Williams_Kenneth_H207041_20240325.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H207041 \n \nKENNETH WILLIAMS (DEC’D), \nEMPLOYEE \n \nCLAIMANT \nMALVERN SCHOOL DISTRICT,  \nEMPLOYER \n \nRESPONDENT \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 25, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nJune 29, 2023.  The administrative law judge found that the claimant was \nperforming employment services at the time of his fatal accident.  After \nreviewing the entire record de novo, the Full Commission reverses the \nadministrative law judge’s opinion.  The Full Commission finds that the \nclaimant was not performing employment services at the time of the \naccidental injury.   \nI.  HISTORY \n\nWILLIAMS - H207041  2\n  \n \n \n The record shows that Kenneth Wayne Williams (d.o.b. 4-6-62) was \nmarried to Cynthia Cagle in Washington County, Arkansas on August 6, \n1988.  Cynthia Cagle Williams testified that she had remained married to \nKenneth Williams since that time.     \n On April 30, 2021, Ken Williams signed a TEACHER’S CONTRACT \nwith Malvern School District for the YEAR:  2021-2O22.  The period of time \ncovered by the contract was 225 days, from July 19, 2021 through June 23, \n2022.  The TEACHER’S CONTRACT provided that the claimant would \nperform services as follows:  “CLASSROOM TEACHING.”       \nThe parties stipulated that the employee-employer-carrier \nrelationship existed at all pertinent times, including “on or about April 26, \n2022.”  The record indicates that a Region II Spring Meeting was held at \n5:12 p.m. on April 26, 2022.  The meeting location was Goza Middle \nSchool, and Ken Williams participated in business conducted at the \nmeeting. \nJon Stevenson testified that he was employed as band director at \nMalvern Middle School and assistant band director at Malvern High School.  \nJon Stevenson testified that he had regularly worked with Ken Williams in \nband-related activities.  The claimant’s attorney examined Mr. Stevenson: \nQ.  Are you familiar with the Arkansas School Band and \nOrchestra Association? \nA.  Yes....It is an organization that allows other band directors \nand orchestra directors to get together to help our students \n\nWILLIAMS - H207041  3\n  \n \n \nwith performing activities such as All-Region band or concert \nassessment or marching assessments, and it’s a way for us to \nalso collaborate with each other and get together to figure out \nways to, you know, continue to teach our students band and \nmusic in general.... \nQ.  Do you have to be a member of that organization for the \nkids who are in your program to be able to do certain things? \nA.  Yes. \nQ.  What sort of things? \nA.  As I mentioned before, marching assessment is one of the \n– you have to be a member of ASBOA to marching \nassessment (sic), as well as concert assessment or also solo \nand ensemble, which is another performance opportunity for \nour students as well.   \nQ.  For the All-Region and All-State band? \nA.  Yes. \nQ.  So you have to be a member for the students to be eligible \nfor the events? \nA.  Yes. \nQ.  All right.  Do you know if Ken was a member? \nA.  Yes, he was.   \nQ.  And are you aware that there was a meeting that was \nscheduled for April 26, 2022? \nA.  Yes.  I believe I was at that meeting as well.... \nQ.  Do you know what this is? \nA.  [The witness peruses the document].  This is the agenda \nfor our spring meeting of that year. \nQ.  Was that meeting mandatory? \nA.  Yes. \nQ.  If you did not show up for that meeting what would \nhappen? \nA.  Usually what would happen is our Region Chair would \nnotify our principals or the school that we did not attend those \nmeetings.   \nQ.  So it was important that you be there. \nA.  Yes.   \nQ.  And it was required that you be there. \nA.  Yes.   \nQ.  Okay.  And does this appear to be the agenda showing \nthe start time of 5:12? \nA.  Yes.   \n\nWILLIAMS - H207041  4\n  \n \n \nQ.  Okay.  And it shows that it was at Goza Middle School.  \nDo you know where that is? \nA.  That’s in Arkadelphia.... \nQ.  Did you have permission from Ms. Shnaekel to go to that \nmeeting? \nA.  No.... \nQ.  And just to reiterate, this was a mandatory meeting, was it \nnot? \nA.  Yes.   \nQ.  You had to go. \nA.  Yes.   \nQ.  Okay.  And if you didn’t, they were gonna contact the \nadministration and tell  \n‘em you weren’t there. \nA.  Yes.... \nQ.  Do you know where Ken lived? \nA.  I know he lived in Malvern.... \nQ.  Do you know if Ken was going back to Malvern High \nSchool after the meeting? \nA.  I do not know.   \n \n According to the record, an ARKANSAS MOTOR VEHICLE CRASH \nREPORT indicated that three Motor Vehicles and one Non-Motorist were \ninvolved in a crash at 6:10 p.m. on April 26, 2022.  The CRASH LOCATION \nwas Interstate 30, Hot Spring County.  NON-MOTORIST INFORMATION \nindicated that Kenneth Wayne Williams was struck by Motor Vehicle #1 and \nsuffered a Fatal Injury.  A box indicating “No” was checked following the \ninformation, “Going to/from K-12 School.”  Mr. Williams’ location at the time \nof the crash was “Median/crossing island.”  The following NARRATIVE was \nincluded with the ARKANSAS MOTOR VEHICLE CRASH REPORT: \nOn 4/26/2022 at approximately 6:12 pm, I responded to a \nmulti-vehicle accident on I-30 East at the 86 mm.  Upon my \narrival on scene, Fire and Rescue was in the process of chest \n\nWILLIAMS - H207041  5\n  \n \n \ncompressions on a male subject that was struck in the median \nduring the accident.  LifeNet responded and pronounced the \npedestrian deceased on scene.  After speaking with the \nparties involved and looking at the evidence on scene, it was \ndetermined that V1 was traveling in the inside lane when he \napproached the previous accident scene.  V1 rear ended V2 \nwho was stopped in the inside traffic lane just prior to the \nprevious accident.  V2 was pushed into the center median \nbefore coming to rest.  After rear ending V2, V1 continued \neast before rear ending a parked V3 that was involved in a \nprevious accident.  V3 was pushed forward in the inside lane \nand came to rest after being struck by V1.  V1 then veered \ninto the center median where it lost the front passenger side \ntire of the vehicle before coming to rest against the guard wire \non the south side of I-30 West.  The tire V1 lost, continued \neast in the median before striking the male pedestrian who \nwas in the median helping occupants involved in the previous \naccident.   \n \n The parties stipulated that Kenneth Williams “sustained injuries that \nresulted in his death” on or about April 26, 2022.  Cindy Williams testified on \ndirect examination: \n  Q.  Do you know what happened to [Ken] on April 26\nth\n, 2022? \n  A.  I’ve been told, yes. \n  Q.  You weren’t there? \n  A.  No.   \n  Q.  Where were you at the time of the accident? \n  A.  I was traveling back to Malvern from my job in Maumelle.   \n  Q.  Okay.  And where were you working at the time? \n  A.  Maumelle Middle School.... \n  Q.  And how did you learn about his incident to begin with? \nA.  I received a text message, and I don’t really know how this \nworks but apparently, when you have emergency contacts – \nKen had it set up so that when he had emergency contacts in \nhis phone, that when you dial – when he would dial 911, it \nwould alert all the people who were his emergency contacts.  \nSo I got a message on my phone that he had dialed 911.   \nQ.  Okay.  And then, as I understand it, you tried to reach out \nto him? \n\nWILLIAMS - H207041  6\n  \n \n \nA.  Yes, multiple times.   \nQ.  And you briefly spoke to him? \nA.  No, I did not speak to him....There was a text. \nQ.  And what was the content of that text? \nA.  I had asked what’s goin’ on, and he said – he replied, “Not \nsure,” or “I don’t know,” but one of those.   \nQ.  All right.  And did you hear from him again? \nA.  No.   \nQ.  Okay.  Do you recall about what time of day on April 26, \n2022, that was? \nA.  Around 6:00, 5:30 or 6:00, 6:30.  I – it’s hard to remember.  \nIt was still daylight and it was the end of April.   \nQ.  And you didn’t speak to him again? \nA.  No. \nQ.  Okay.  And at the time, did you know where he was? \nA.  I knew he was returning from a meeting in Arkadelphia.  \nHe was returning to Malvern.   \nQ.  And what was your understanding as to what that meeting \nwas for? \nA.  Band.   \nQ.  And what was Ken’s occupation at the time of his \npassing? \nA.  A band director. \nQ.  Was he the high school band director for Malvern High \nSchool? \nA.  Yes, he was. \nQ.  And between your house and Malvern High School, if he \nwere to travel from Malvern High School to your home, would \nhe need to be on I-30? \nA.  Absolutely not.   \nQ.  Do you know where the incident occurred? \nA.  Yes, I do. \nQ.  Where was it? \nA.  It was on I-30.  I can’t remember mile marker but it was \nbetween Friendship and Malvern.   \nQ.  And that’s also between Arkadelphia and Malvern. \nA.  That is correct.... \nQ.  Do you know where Ken was going at the time of his \nincident? \nA.  It’s my knowledge that he was traveling back to Malvern.   \nQ.  Do you know where he was going in Malvern? \nA.  Not directly, no. \n\nWILLIAMS - H207041  7\n  \n \n \nQ.  Okay.  But he had not yet made it to Malvern. \nA.  No.   \n \n The respondents’ attorney cross-examined Ms. Williams: \nQ.  Both of us have introduced today the police report from \nthe accident that happened on April 26\nth\n, and you’ve reviewed \nthat, correct? \nA.  Yes. \nQ.  And you’d stated in your deposition that you read the \nnames of the individuals who were involved in the accident. \nA.  Yes, that is correct. \nQ.  And you did not know any of them? \nA.  No, I do not.   \nQ.  And you had no reason to believe that your husband knew \nany of them.  Is that right? \nA.  No, he did not.   \n \n On April 28, 2022, Gary Burton, Jr. posted a Local News story on \nKARK.com: \nThe Malvern School District family is mourning the loss of \ntheir longtime band director, 60-year-old Kenneth Williams. \nMr. Williams was hit and killed by a car Tuesday afternoon on \ninterstate-30 near mile marker 86 in Hot Springs (sic) county. \nThe Malvern school district tells us that Williams was heading \nback to Malvern from a regional band directors meeting in \nArkadelphia when he stopped to assist the victims involved in \na separate accident.... \nJon Stevenson, Malvern Assistant Band Director says his \nmentor, leader and friend, Mr. William (sic) was “always willing \nto help someone no matter what.”   \nTragically, Williams left this earth by doing just that, helping \nothers. \nAnother man was injured in this accident.  No one is being \ncharged.... \n \n An ARKANSAS DEPARTMENT OF HEALTH Vital Records \nCERTIFICATE OF DEATH was filed on May 3, 2022.  The CERTIFICATE \n\nWILLIAMS - H207041  8\n  \n \n \nOF DEATH indicated that Kenneth Wayne Williams died on April 26, 2022 \nas the result of an ACCIDENT at I-30 Mile Marker, Donaldson, Arkansas:  \n“DECEASED STOPPED TO ASSIST ON A (SIC) ACCIDENT SCENE AND \nWAS STRUCK BY ANOTHER VEHICLE.”    \n A pre-hearing order was filed on December 14, 2022.  The claimant \ncontended, “The Claimant’s AWW will be determined by the contract of hire, \nwage records and Arkansas law.  On April 26, 2022, the Claimant was \ntragically killed while on a school field trip.  The Respondents should be \nresponsible for all medical expenses incurred therewith and death and \nspousal benefits pursuant to the Act.  The Claimant is also entitled to \nreasonable and necessary attorney’s fees.  All other issues are reserved.”   \n The parties stipulated that the claim “has been controverted in its \nentirety.”  The respondents contended, “Respondents contend that \nClaimant did not suffer compensable injuries under the Arkansas Workers’ \nCompensation Act.”   \n The parties agreed to litigate the following issues: \n1.  Whether the Claimant sustained “compensable injury(ies)” \nthat resulted in death at a time when he was performing \nemployment services.   \n2.  If the Claimant’s alleged injury is deemed compensable, \nthe extent to which he is entitled to medical expenses \nincurred, spousal benefits, and funeral expenses. \n3.  Whether the Claimant’s attorney is entitled to a \ncontroverted fee.   \n \n\nWILLIAMS - H207041  9\n  \n \n \n A hearing was held on March 31, 2023.  At that time, the \nrespondents’ attorney examined Jennifer West Shnaekel: \n  Q.  What do you do for a living, Ms. Shnaekel? \n  A.  I’m the high school principal at Malvern School District.... \nQ.  You were the direct supervisor of Ken Williams.  Is that \ncorrect? \n  A.  Yes, for the school day.... \nQ.  Tell us what you would consider Mr. Williams’ job duties to \nhave been as band director there. \nA.  As band director he, of course, arrived early in the morning \nand had his band room open.  Band students always had \nband class first period.  The students would get there early, \nand some would go set up, and some would just visit.  But \nwhen I say early, as early as 7:30 a.m.  He had first period \nband there and then he would go to other campuses based on \nwhat that particular year’s class work looked like.  He \nattended football games.  He did flag line leader, Winter \nGuard, the flags participated in competitions, they would go to \nregional assessments, state assessments, always had two \nband concerts a year, participated in the baccalaureate for \nseniors, graduation, many events.... \nQ.  Did you know that Mr. Williams was going to Arkadelphia \nto attend any type of meeting? \nA.  Not that particular day.  No, ma’am.   \nQ.  Was there any paperwork presented to your office at all for \nthat trip? \nA.  I did not locate it in my file.   \nQ.  Was it mandatory for him to have attended? \nA.  I cannot say that.  Not being a member of ASBOA I’m not \nfamiliar with a mandatory meeting.  The educational events \nthat I’m a member of are not required meetings, but I cannot \nsay if this one was or not - not to my knowledge, but I cannot \ntestify as solid.   \nQ.  Mr. Caldwell took your deposition on January 13\nth\n of this \nyear.  Does that sound correct? \nA.  I do know that we spoke.  I apologize I can’t tell you the \ndate, but yes, it’s been recent.   \nQ.  At that time you testified that you didn’t know what the \nmeeting was about or he met with.  Is that true? \nA.  At that time I did not.   \n\nWILLIAMS - H207041  10\n  \n \n \nQ.  In your opinion, Ms. Shnaekel, did it benefit the school in \nany way for him to have stopped and helped someone on the \nside of the road? \nA.  Did it benefit the school? \nQ.  Correct. \nA.  No, ma’am.   \nQ.  As part of his job as band director, was he also required to \nbe a police officer? \nA.  No, ma’am. \nQ.  Was he required to be a firefighter? \nA.  No, ma’am. \nQ.  What about an EMT? \nA.  No, ma’am.   \n \n The administrative law judge examined Jennifer Shnaekel: \nJUDGE BLACK:  Based on what you know about this \norganization and the testimony that you’ve heard, did it in any \nway benefit the Malvern School District for Mr. Williams to \nattend this meeting? \nMS. SHNAEKEL:  For the planning of students and their \nopportunity to grow and develop, yes, I do believe that the \nplanning and all of the planning for our students to grow \nmusically and academically, it was a benefit to students.   \n \n An administrative law judge filed an opinion on June 29, 2023.  The \nadministrative law judge found that the claimant was performing \nemployment services at the time of his fatal accident.  The administrative \nlaw judge filed an amended opinion on July 27, 2023 which included the \nstipulation that Cindy Williams was “wholly and actually dependent” upon \nKen Williams in the event the Commission found that the accidental injury \nwas compensable.  The respondents appeal both opinions to the Full \nCommission.   \nII.  ADJUDICATION \n\nWILLIAMS - H207041  11\n  \n \n \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.]... \n(B)  “Compensable injury” does not include: \n(iii) Injury which was inflicted upon the employee at a time \nwhen employment services were not being performed or \nbefore the employee was hired or after the employment \nrelationship was terminated[.]   \n \n An employee is performing employment services when he is doing \nsomething that is generally required by his employer.  Dairy Farmers of \nAmerica v. Coker, 98 Ark. App. 400, 255 S.W.3d 905.  The Arkansas Court \nof Appeals uses the same test to determine whether an employee is \nperforming employment services as it does when determining whether an \nemployee is acting within the course and scope of employment.  Pifer v. \nSingle Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002).  The test is \nwhether the injury occurred within the time and space boundaries of the \nemployment, when the employee was carrying out the employer’s purpose \nor advancing the employer’s interest, directly or indirectly.  Id.   \nThe employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \n\nWILLIAMS - H207041  12\n  \n \n \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nAn administrative law judge found in the present matter, “3.  The \nClaimant was performing employment services at the time of his fatal \ndeath.\"  The Full Commission does not affirm this finding.  The record \nindicates that Ken Williams had been employed for approximately 30 years \nas a band director for the respondents, Malvern School District.  On April \n30, 2021, Mr. Williams signed a TEACHER'S CONTRACT with the \nrespondents wherein he agreed to provide the services, “CLASSROOM \nTEACHING.”  The period of time covered by the contract was July 19, 2021 \nthrough June 23, 2022.   \nAs we have discussed, the record shows that a Region II Spring \nMeeting was held at 5:12 p.m. on April 26, 2022 at Goza Middle School in \nArkadelphia, Arkansas.  The Region II Spring Meeting was apparently \naffiliated with the Arkansas School Band and Orchestra Association.  The \nrecord shows that Ken Williams attended the Region II Spring Meeting in \nArkadelphia and participated in the business conducted there.  Jon \nStevenson testified that the Region II Spring Meeting was a “mandatory” \nevent for band directors.  Jennifer Shnaekel, Malvern High School Principal, \ntestified that she was unsure with regard to whether or not the April 26, \n2022 event was indeed mandatory.  Upon questioning by the administrative \n\nWILLIAMS - H207041  13\n  \n \n \nlaw judge, Ms. Shnaekel agreed that the Malvern School District benefitted \nfrom Ken Williams’ attendance and participation in the Region II Spring \nMeeting.       \nAn ARKANSAS MOTOR VEHICLE CRASH REPORT indicates that \nKen Williams tragically suffered a fatal injury at approximately 6:10 p.m. on \nApril 26, 2022.  An Arkansas State Police NARRATIVE showed that Ken \nWilliams had exited his personal vehicle to assist other motorists involved in \na motor vehicle accident on Interstate 30 in Hot Spring County.  Mr. \nWilliams’ location at the time of the pedestrian accident in which he was \ninvolved was Median/crossing island” and a box indicating “No” was \nchecked following the information, “Going to/from K-12 School.”  The \nNARRATIVE stated that Ken Williams was struck by a tire which had been \nlost from a vehicle.     \nThe relevant question in the present matter is not whether the \nrespondents benefitted from Kenneth Williams’ attendance at the Region II \nSpring Meeting on April 26, 2022.  Instead, the critical inquiry in accordance \nwith Act 796 is whether the claimant was performing employment services \nwhen the injury occurred.   See Parker v. Comcast Cable Corp., 100 Ark. \nApp. 400, 269 S.W.3d 391 (2007), citing Moncus v. Billingsley Logging, 366 \nArk. 383, 235 S.W.3d 877 (2006).  The Commission must strictly construe \nthe provisions of Act 796 of 1993.  See Ark. Code Ann. §11-9-\n\nWILLIAMS - H207041  14\n  \n \n \n704(c)(3)(Repl. 2012).  The doctrine of strict construction requires use of \nthe plain meaning of the statutory language.  Edens v. Superior Marble & \nGlass, 346 Ark. 487, 58 S.W.3d 369 (2001).  The Commission is bound to \nexamine the activity the claimant was engaged in at the time of the accident \nin determining whether or not he was performing employment services.  Hill \nv. LDA Leasing, 2010 Ark. App. 271, 374 S.W.3d 268 (2010).  The \npreponderance of evidence in the present matter demonstrates that the \nclaimant was not directly or indirectly benefitting his employer when he \nexited his vehicle and entered the median on Interstate 30 on the evening \nof April 26, 2022.  The Full Commission finds credible Jennifer Shnaekel’s \ntestimony that the claimant’s actions following the motor vehicle accident on \nApril 26, 2022 did not benefit the Malvern School District.  Again, the critical \ninquiry is whether the claimant was performing employment services when \nthe injury occurred.  See Parker, supra.  \nAn employee is performing employment services when he is doing \nsomething that is generally required by his employer.  Coker, supra.  The \nrecord in the present matter shows that Ken Williams was acting nobly and \ngenerously when offered assistance to other individuals following a motor \nvehicle accident on April 26, 2022, while the claimant was returning to \nMalvern from Arkadelphia.  Nevertheless, the evidence does not \n\nWILLIAMS - H207041  15\n  \n \n \ndemonstrate that Mr. Williams was performing employment services at the \ntime of his tragic fatality.  \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant was not performing employment services when he \nsustained a fatal accidental injury on April 26, 2022.  The Full Commission \ntherefore reverses the administrative law judge’s opinion, and this claim is \nrespectfully denied and dismissed. \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite concurs and dissents. \nDISSENTING OPINION \nAfter a de novo review of the record in this claim, I dissent from the \nmajority opinion finding that the Claimant was not performing employment \nservices at the time of his death.                                                                                     \n The Claimant was employed as a band director for the Malvern \nSchool District for approximately 30 years.  On April 26, 2022, Claimant \nattended an Arkansas State Band and Orchestra Association (hereinafter \n“ASBOA”) meeting in Arkadelphia to discuss dates and hosts of regional \n\nWILLIAMS - H207041  16\n  \n \n \nevents for the students of ASBOA.  During the trip home, the Claimant \nencountered an accident on I-30 near the 86-mile marker.  The credible \nproof suggests that the inside eastbound lane of I-30 was blocked and \ntraffic in that lane, including the Claimant’s vehicle, came to a halt.  Before \ntraffic was cleared, another vehicle heading eastbound struck multiple \nvehicles and lost the front passenger-side tire which struck the Claimant \nwho was outside his vehicle assisting accident victims.  The Claimant \nsuccumbed to his injuries and was pronounced deceased on scene.  The \nprimary issue is whether the Claimant was performing employment services \nat the time of his injury and death.                      \n The Arkansas Supreme Court has held that an employee is \nperforming employment services when he or she “is doing something that is \ngenerally required by his or her employer.”  Texarkana Sch. Dist. v. Conner, \n373 Ark. 372, 284 S.W.3d 57 (2008).  Specifically, it has been held that the \ntest is whether the injury occurred “within the time and space boundaries of \nthe employment, when the employee was carrying out the employer’s \npurpose or advancing the employer’s interest directly or indirectly.  Id.  The \ncritical inquiry is whether the interests of the employer were being directly or \nindirectly advanced by the employee at the time of the injury.  Id.  Lastly, \nthe issue of whether an employee is performing employment services within \n\nWILLIAMS - H207041  17\n  \n \n \nthe course of employment depends on the particular facts and \ncircumstances of each case. Id.   \nThe trial testimony indicates that the ASBOA meeting was a work-\nrelated event.  John Stevenson was a co-worker of the Claimant and \ntestified that the ASBOA meeting was mandatory for band directors.  The \nagenda for the ASBOA meeting demonstrates a direct connection to school \nrelated business.  The meeting included discussions relating to electing \nnew officers as well as dates and events for ASBOA.  Mr. Stevenson further \nclarified the direct benefit to the Malvern School District in that it outlined \nevents for the students.  Therefore, the Claimant was performing \nemployment services by attending the ASBOA meeting.  The remaining \nissue is whether the Claimant deviated from the course and scope of his \nemployment on his journey back to Malvern by exiting his vehicle to provide \nassistance to other stranded motorists.        \nAs stated in 2 Larson’s Workers’ Compensation Law, § 17:     \nAn identifiable deviation from a business trip for personal reasons  \ntakes the employee out of the course of employment until the  \nemployee returns to the route of the business trip, unless the  \ndeviation is so small as to be disregarded as insubstantial.                                                        \n At the time of this tragic accident the Claimant was attempting to \nreturn home from a work-related event.  He would not have been in this \n\nWILLIAMS - H207041  18\n  \n \n \nlocation if not for the fact that he attended the ASBOA work-related \nconference.  Up to the time that the Claimant stopped his vehicle in \nresponse to the other traffic which had come to a halt on I-30, there \nappears to be no serious dispute that Claimant was performing employment \nservices.  The record then suggests that the Claimant exited his vehicle to \nassist three occupants of a Nissan Sentra that was stopped in front of his \nvehicle.  During the Claimant’s attempt to provide assistance he was struck \nand killed.  Additionally, there is no credible proof in the record that the \nRespondent prohibited the Claimant from providing such assistance under \nthese circumstances.  It is my opinion that the Claimant’s actions were not a \nsignificant deviation from the course and scope of his employment, and that \nhe was performing employment services for the Respondent at the time of \nthis accident.  The Claimant’s trip back to Malvern was a necessary part of \nhis work-related conference.  The Claimant could have sustained injuries \nwhether he remained in his vehicle or not, and it does not seem reasonable \nto conclude that his attempt to provide assistance to the stranded motorists \nis such a deviation from the course and scope of his employment duties to \nfind the claim is not compensable.      \n Therefore, I dissent from the majority and find that the Claimant was \nperforming employment services at the time of his fatal injury. \n \n\nWILLIAMS - H207041  19\n  \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":27926,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H207041 KENNETH WILLIAMS (DEC’D), EMPLOYEE CLAIMANT MALVERN SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 25, 2024","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:45.909Z"},{"id":"full_commission-H204215-2024-03-21","awccNumber":"H204215","decisionDate":"2024-03-21","decisionYear":2024,"opinionType":"full_commission","claimantName":"Richard Oliver","employerName":"Arkansas Department Of Environmental Quality","title":"OLIVER VS. ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY AWCC# H204215 MARCH 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Oliver_Richard_H204215_20240321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Oliver_Richard_H204215_20240321.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H204215 \n \nRICHARD G. OLIVER, EMPLOYEE  CLAIMANT \n \nARKANSAS DEPARTMENT OF ENVIRONMENTAL \nQUALITY, EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,   \nINSURANCE CARRIER/TPA RESPONDENT \n \n \nOPINION FILED MARCH 21, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MARK A. PEOPLES, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed September 28, 2023.  In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim.  \n \n2. The stipulations set forth above are reasonable and are hereby \naccepted. \n \n3. Claimant has proven by a preponderance of the evidence that he \nis entitled to additional treatment of his compensable back injury \nin the form of a referral to Dr. Kenneth Rosenzweig for the \n\nOLIVER - H204215  2\n  \n \n \npurpose of determining whether he should be assigned a \npermanent impairment rating. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed.  Specifically, we find from a preponderance \nof the evidence that the findings made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(a)(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n \n\nOLIVER - H204215  3\n  \n \n \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion.  After my de novo \nreview of the file, I find that the claimant has failed to prove by a \npreponderance of the credible evidence that he is entitled to additional \ntreatment of his compensable back injury in the form of a referral to Dr. \nRosenzweig for the purpose of determining whether he should be assigned \na permanent impairment rating. \nThe claimant, Richard Oliver, sustained a compensable low back \ninjury while moving cubicles at the Arkansas Department of Environmental \nQuality (ADEQ) offices on May 31, 2022.  The claimant initially treated with \nHealthcare Express on June 1, 2022, where he was assessed with a \nlumbar strain.  (Cl. Ex. 1, Pp. 1-2).  There, PA-C Claire Golden discussed \nmuscle relaxants with the claimant, but claimant declined due to an \nupcoming heart ablation.  Id.  PA-C Golden informed the claimant that if his \npain persisted, she would refer him for physical therapy.  Id. \n\nOLIVER - H204215  4\n  \n \n \n The respondents ultimately referred the claimant to Dr. Michael \nCassat, who began treating the claimant on June 7, 2022.  (Resp. Ex. 1, P. \n1).  Upon physical examination, Dr. Cassat found: \nThe lumbar spine is normal in \nappearance, as well as the \noverlying skin.  There is no bony \npoint tenderness. There is no \ntenderness over the SI joints. \nRange of motion is normal in \nflexion and extension with \nreproduction of pain in flexion. \nSeated SLR is normal.  DTRs are \n2+ at both patella[s S]trength is \nnormal at bilateral hip flexors, \nquads, tibialis anterior, gastric, \nEHL. Ther is no pretibial edema.  \n \nX-Rays today without acute \nprocess.  We will start physical \ntherapy for neutral spine core \nstrengthening and modalities. \nFollow up with me in 4 weeks.  \nHis work restrictions are no lifting, \npushing, pulling greater than 15 \nlb.  (Resp. Ex. 1, Pp. 1-2). \n \n The claimant underwent a physical therapy evaluation on June 22, \n2022, but testified that therapy only helped “[a] little bit.” (Hrng. Tr, P. 10; \nResp. Ex. 1, Pp. 4-8).  On July 28, 2022 the claimant obtained an MRI, \nwhich found, in part: \nL3-4: Mild diffuse disc bulge \nindenting the thecal sac without \nspinal canal stenosis. There is mild \nleft neural foraminal narrowing. \n \n\nOLIVER - H204215  5\n  \n \n \nL4-5: Mild diffuse disc bulge \nindenting the thecal sac without \nspinal canal stenosis. The disc \ncontacts but does not displace the \ntransiting left L5 nerve root in the \nlateral recess. There is mild neural \nforaminal narrowing.  There is mild \nfacet arthrosis. \n \nL5-S1: Mild diffuse disc bulge \nindenting the thecal sac without \nspinal canal stenosis.  A small left \nparacentral posterior annular \nfissure is noted without protrusion \nof disc material.  There is no \nneural foraminal narrowing. There \nis mild facet arthrosis. \n \nIMPRESSION: \nMild lumbar spondylosis at the L3-\n4, L4-5 and L5-S1 levels without \nsignificant spinal canal stenosis or \nneural foraminal narrowing.  Disc \nbulge at L4-5 contacts but does \nnot displace the transiting left L5 \nnerve root in the lateral recess. \n(Resp. Ex. 1, Pp. 9-10). \n \nThe claimant returned to Dr. Cassat on August 9, 2022, who \nreported that: \nHe returns today to review his \nlumbar spine MRI which shows \nsome small disc herniations \nconsiderable central or foraminal \nstenosis.  He has fluid in his facets \nat multiple levels with some \ndegenerative change present.  We \ndiscussed that this could be \nindicative an acute exacerbation \nsome facet pathology.  Given that \n\nOLIVER - H204215  6\n  \n \n \nhe no significant symptoms before \nhis injury this is greater than 50% \nlikely to be causative his \nsymptoms.  We discussed medial \nbranch blocks with rhizotomy. He \nwould like to return to work without \nrestrictions which I think is \nreasonable. (Resp. Ex. 1, P. \n11)(errors in original). \n \n Dr. Cassat released the claimant to full duty with no restrictions, noting \nthat he had not reached maximum medical improvement (MMI). (Resp. Ex. \n1, P. 12). \n The claimant returned to Dr. Cassat on September 27, 2022. (Resp. \nEx. 1, P. 16). Dr. Cassat’s report stated: \nOur discussion today was that [the \nclaimant] continues to have \nsignificant axial pain with activity \nhas failed conservative treatment \nmeasures, cannot tolerate anti-\ninflammatories and is not currently \nable to go off of anticoagulation \neven with bridging for medial \nbranch blocks or a rhizotomy.  At \nthis point have no further treatment \noptions for him, he understands \nthis.  He will continue to work on \nbeing as active, he will follow up \nwith me if he would like to proceed \nwith intervention in the future.  He \nstates that he will never get off of \nanticoagulation secondary to \nstroke risk.  He is at MMI with 0% \npermanent impairment rating.  He \nhas no work restrictions.  He can \nfollow up with me as needed. \n(Resp. Ex. 1, Pp. 16-17). \n\nOLIVER - H204215  7\n  \n \n \n \n The claimant obtained a change of physician order through the \nCommission on December 5, 2022, which was amended on December 9, \n2022, and transferred his care from Dr. Cassat to Dr. Ali Raja of \nNeurosurgery Specialists of Arkansas, who took over the claimant’s care on \nDecember 15, 2022.  (Cl. Ex. 1, Pp. 19-21).  Dr. Raja reviewed the \nclaimant’s radiological studies, stating that “MRI of the lumbar spine without \ncontrast done 7/28/2022 at UAMS showed mild lumbar spondylosis at L3-\nL4, L4-L5, and L5-S1 without significant spinal canal stenosis or \nneuroforaminal stenosis.  There is a disc bulge at L4-L5 that contacts but \ndoes not displace the transiting left L5 nerve root in the lateral recess.” \n(Resp. Ex. 1, P. 20).  The December 15, 2022 report further states: \nI personally reviewed outside \nrecords from the referring \nphysician as well as the patient’s \npast medical, surgical, family, and \nsocial history and current \nmedications in clinic today.  I also \npersonally reviewed the patient’s \nradiological images and imaging \nreports in clinic today and \ncorrelated these with the patient’s \ncurrent symptoms and exam \nfindings to formulate the plan of \ncare. \n \nI had a detailed discussion with the \npatient regarding findings of the \nhistory and physical examination \nand radiological studies.  We \ndiscussed the need for lifestyle \n\nOLIVER - H204215  8\n  \n \n \nmodifications including the need to \nbe careful with no excessive \npushing, pulling, bending, weight \nlifting, strenuous activities and not \nlifting anything more than 5-10 \npounds. \n \nWe also discussed management \noptions and plans including \nsurgical versus nonsurgical \nmeasures. We discussed the \nfinding of multilevel degenerative \nchanges without definite neural \ncompromise or evidence of \nfracture on the patient’s most \nrecent MRI of the lumbar spine \ndone 7/28/22 and my \nrecommendation not to proceed \nwith any neurosurgical intervention \nat this time. \n \nWe discussed the option for \noutpatient physical therapy for \ngentle muscle strengthening \nexercises for 6-8 weeks, but he \nsaid he has already done multiple \nsessions without benefit.  (Cl. Ex. \n1, Pp. 20-21). \n \n Dr. Raja later referred the claimant to Dr. Kenneth Rosenzweig to be \nevaluated for an impairment rating on May 9, 2023.  (Cl. Ex. 1, Pp. 22-23).  \n In an order dated September 28, 2023, an administrative law judge \n(ALJ) ruled that the claimant is entitled to additional medical treatment in \nthe form of a referral to Dr. Rosenzweig for the purposes of determining \nwhether he should be assigned a permanent impairment rating.  \n\nOLIVER - H204215  9\n  \n \n \nThe sole question here is whether the claimant is entitled to \nadditional medical treatment related to his compensable low back injury. \nArkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires an \nemployer to provide an employee with medical and surgical treatment \"as \nmay be reasonably necessary in connection with the injury received by the \nemployee.\"  The claimant has the burden of proving by a preponderance of \nthe evidence that the additional treatment is reasonable and necessary. \nNichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of fact for \nthe Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 S.W.3d \n445 (2023).  In assessing whether a given medical procedure is reasonably \nnecessary for treatment of the compensable injury, the Commission \nanalyzes both the proposed procedure and the condition it sought \nto remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. 153, \n426 S.W.3d 539 (2013). \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness.  Id.  However, the Commission has the authority to accept \n\nOLIVER - H204215  10\n  \n \n \nor reject medical opinions.  Williams v. Ark Dept. of Community Corrections, \n2016 Ark. App. 427, 502 S.W. 3d 530 (2016).  Furthermore, it is the \nCommission's duty to use its experience and expertise in translating the \ntestimony of medical experts into findings of fact and to draw inferences \nwhen testimony is open to more than a single interpretation.  Id. \n In his opinion, the ALJ appears to rely on a single discrepancy in \ndisregarding Dr. Cassat’s impairment rating: one line in the Augst 9, 2022 \nreport that states the claimant “returns today to review his lumbar spine MRI \nwhich shows some small disc herniations” rather than the “[m]ild diffuse \ndisc bulge[s]” found in the claimant’s MRI. (Resp. Ex. 1, Pp. 9-11).  This, \nhowever, ignores the fact that the claimant continued treating with Dr. \nCassat after that date before being released at MMI, and the claimant \nwould later be treated by Dr. Ali Raja, who personally reviewed the \nclaimant’s medical records and noted no issues with this so-called \ndiscrepancy.  The ALJ did not weigh the opinions of Drs. Cassat and Raja \nagainst the facts at hand and arbitrarily rejected Dr. Cassat’s opinion.  Dr. \nCassat treated the patient soon after his initial injury and for a period of \nnearly four months before releasing the claimant at MMI when Dr. Raja \nevaluated the claimant on a single occasion once it was clear that surgical \nintervention was not an option.  \n\nOLIVER - H204215  11\n  \n \n \nFurther, the only difference between Dr. Cassat and Dr. Raja’s \nopinions on the claimant’s treatment is that Dr. Raja, for reasons unknown, \nbelieves that the claimant should undergo an additional evaluation for \npermanent impairment.  The claimant has already undergone this \nevaluation with Dr. Cassat and received a 0% impairment rating.  There \nwere no changes in the record to the claimant’s treatment plan or physical \nsymptoms between the date of Dr. Cassat’s impairment rating and Dr. \nRaja’s referral request.  Dr. Raja did nothing to treat the claimant, as the \nclaimant rejected the available options.  Dr. Raja did not provide any reason \nwhy he believes that an additional evaluation is necessary or relevant. \nAdditionally, the claimant exhausted his change of physician request when \nchanging to Dr. Raja’s care, and it is unreasonable to introduce a third \nphysician to provide information that is already available.  \nThe claimant’s request to be evaluated by Dr. Rosenzweig is both \nunnecessary and unreasonable as it will not provide any greater information \nabout the claimant’s care or treatment. For the reasons set forth above, I \nmust dissent. \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":14688,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204215 RICHARD G. OLIVER, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 21, 2024 Upon review before t...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","lumbar","strain","hip","fracture"],"fetchedAt":"2026-05-19T22:29:45.889Z"},{"id":"alj-H301227-2024-03-21","awccNumber":"H301227","decisionDate":"2024-03-21","decisionYear":2024,"opinionType":"alj","claimantName":"Chavaun Hopkins","employerName":"International, Inc. D/b/a Chili’s Bar & Grill","title":"HOPKINS VS. INTERNATIONAL, INC. d/b/a CHILI’S BAR & GRILL AWCC# H301227 MARCH 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HOPKINS_CHAVAUN_H301227_20240321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOPKINS_CHAVAUN_H301227_20240321.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H301227 \n \nCHAVAUN HOPKINS, EMPLOYEE       CLAIMANT \n \nINTERNATIONAL, INC. d/b/a \nCHILI’S BAR & GRILL, EMPLOYER               RESPONDENT \n \nSAFETY NATIONAL CASUALTY CORP./ \nHELMSMAN MNGMT. CORP., CARRIER/TPA         RESPONDENT \n  \n \n \nOPINION FILED 21 MARCH 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe, 20 March 2024, in Little Rock, Pulaski County, Arkansas. \n \nThe pro se claimant did not appear. \n \nMr. David C. Jones, Attorney-at-Law of Little Rock, Arkansas, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 20 March 2024.  This case relates to an alleged workplace injury \nsustained on 14 February 2023, when she slipped on a lemon wedge.  A First Report of Injury \nwas filed on 22 February 2023.  A Form AR-2 was filed on 28 February 2023 accepting the \nclaim.  On 25 April 2023, a Form AR-C was filed by the claimant’s counsel.  \n On 18 September 2023, claimant’s counsel sought to withdraw from the case, and by \nits Order dated 3 October 2023, the Full Commission granted that request to withdraw. \n The respondents filed their Motion to Dismiss for Failure to Prosecute on 14 December \n2023, stating that the claimant had not sought a hearing on any matter at controversy in the \nsix (6) months preceding that filing.  The claimant did not file an objection to the dismissal \nor  appear  at  the  hearing  to  argue  against  the  respondents’  motion. The  respondents \n\nC. HOPKINS- H301227 \n2 \n \nappeared, presented their motion, and offered supporting evidence into the record. As argued \nby the respondents at the hearing, the file reflects no request for a hearing on a claim in the \nrelevant time preceding the filing of that motion.  \n Arkansas Code  Annotated §11-9-702(a)(4)  states  that  a  matter  may  be  dismissed \nwithout prejudice after six (6)  months without a bona fide request for a hearing.  Commission \nRule 099.13 provides for  a  dismissal  for  failure  to prosecute  an  action upon  application  by \neither  party. Based  on  the  record, the available  evidence, and the  arguments  of  the \nrespondents’ counsel, I find that the respondents’ Motion to Dismiss should be granted and \nthat the matter should be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2618,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H301227 CHAVAUN HOPKINS, EMPLOYEE CLAIMANT INTERNATIONAL, INC. d/b/a CHILI’S BAR & GRILL, EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY CORP./ HELMSMAN MNGMT. CORP., CARRIER/TPA RESPONDENT OPINION FILED 21 MARCH 2024 Heard before Arkansas Workers’ Compens...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:56:47.298Z"},{"id":"alj-H301708-2024-03-21","awccNumber":"H301708","decisionDate":"2024-03-21","decisionYear":2024,"opinionType":"alj","claimantName":"Frederick Williams","employerName":"Hi-Way Paving, Inc","title":"WILLIAMS VS. HI-WAY PAVING, INC. AWCC# H301708 & H301713 MARCH 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILLIAMS_FREDERICK_H301708-H301713_20240321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILLIAMS_FREDERICK_H301708-H301713_20240321.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NOS. H301708 & H301713 \n \nFREDERICK WILLIAMS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nHI-WAY PAVING, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nCINCINNATI CASUALTY CO./ \nCINCINNATI INS. CO. \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION TO DISMISS WITHOUT PREJUDICE  \nFILED MARCH 21, 2024 \n \nHearing conducted on Tuesday, March 19, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Frederick Williams, pro se, of Little Rock, Pulaski County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Karen H. McKinney, Barber Law Firm, \nLittle Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Tuesday, March 19, 2024, to determine whether these two \n(2) separate claims should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-\n9-702(a)(4) (2023 Lexis Replacement) and Commission Rule 099.13 (2023 Lexis Replacement). \n The respondents filed a motion to dismiss without prejudice (MTD) with the Commission \non January  19,  2024, requesting these claims be  dismissed without  prejudice for  lack  of \nprosecution. Consistent with the applicable Arkansas law, the Commission mailed a copy of both \nthe respondents’ MTD, and the subject hearing notice via the United States Postal Service (USPS), \nCertified  Mail,  Return  Receipt  Requested, by  letter  dated February  15,  2024,  to his last  known \n\nFrederick Williams, AWCC No. H301708 & H301713 \n \n2 \n \naddress  of  record  with  the  Commission. (Commission  Exhibit  1;  Respondents’  Exhibit  1). \nThereafter, the claimant failed and/or refused to respond in any way to either the Commission or \nto  the  respondents;  and  he  failed  and/or  refused  to  appear  at  the  subject  hearing.  The  claimant \nnever objected in any way to the respondents’ MTD. \n          It should be noted the claimant was represented by counsel at the time both of these two (2) \nclaims were filed on his behalf; however, by motion filed with the Commission on December 1, \n2023, the claimant’s attorney requested to withdraw as  his  counsel.  By Commission  order  filed \nJanuary 9, 2024, the Full Commission granted the claimant’s attorney’s motion to withdraw as \ncounsel. (RX1 at K). \n            I hereby incorporate the facts stated in the respondents motion to dismiss filed January 9, \n2024, as though they were set forth word-for-word herein. \n The  record  herein  consists  of the  hearing  transcript  and  any  and  all exhibits  contained \ntherein and attached thereto. \n \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the respondents’ \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing and contained in the record conclusively demonstrates the \nclaimant has both failed and/or refused to prosecute his two (2) claims, and he has failed and/or \nrefused to request a hearing within the last six (6) months on the two (2) claims. \n\nFrederick Williams, AWCC No. H301708 & H301713 \n \n3 \n \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After the Commission mailed due and legal notice of the respondents’ MTD \n                  filed January 9, 2024, to the claimant’s last known address of record with the \n                  Commission, the claimant failed and/or refused to respond to the motion in any \n                  way; failed and/or refused to object to the subject MTD; and failed and/or refused \n                  to request a hearing on either or both of the two (2) subject claims. \n \n            3.         The claimant failed and/or refused to appear at the subject hearing and, therefore, \n                        has waived his right to a hearing on the MTD. \n \n      4.         The claimant has failed to request a hearing either on the merits, or on any issue \n                  related to either of these (2) claims within the last six (6) months. \n \n 5. The respondents’ MTD without prejudice filed with the Commission on January \n                  9, 2024, should be and hereby is GRANTED. \n      \n      6.         Therefore, the two (2) aforementioned subject claims hereby are dismissed without \n                  prejudice to their refiling pursuant to the deadlines prescribed by Ark. Code Ann. \n                  § 11-9-702(a) and (b), and Commission Rule 099.13. \n \n This opinion shall not be construed to prohibit the claimant, his attorney, any attorney he \nmay retain in the future, or anyone acting legally and on his behalf from refiling either or both of \nthese two (2) claims if the claim(s) is (are) refiled within the applicable time periods prescribed by \nArk. Code Ann. § 11-9-702(a) and (b). \n The  respondents shall pay the court reporter’s invoice within twenty  (20) days  of their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \nMP/mp","textLength":6194,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NOS. H301708 & H301713 FREDERICK WILLIAMS, EMPLOYEE CLAIMANT HI-WAY PAVING, INC., EMPLOYER RESPONDENT CINCINNATI CASUALTY CO./ CINCINNATI INS. CO. INSURANCE CARRIER/TPA RESPONDENT OPINION TO DISMISS WITHOUT PREJUDICE FILED MARCH 21, 2024 Hearing conducted on Tu...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:56:49.435Z"},{"id":"alj-H205088-2024-03-20","awccNumber":"H205088","decisionDate":"2024-03-20","decisionYear":2024,"opinionType":"alj","claimantName":"Kassandra Hedum","employerName":"Casey’s General Stores, Inc","title":"HEDUM VS. CASEY’S GENERAL STORES, INC. AWCC# H205088 MARCH 20, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HEDUM_KASSANDRA_H205088_20240320.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HEDUM_KASSANDRA_H205088_20240320.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H205088 \n \nKASSANDRA R. HEDUM, Employee                                                             CLAIMANT \n \nCASEY’S GENERAL STORES, INC., Employer                                     RESPONDENT                                                        \n \nACE AMERICAN INS./CCMSI, Carrier/TPA                                            RESPONDENT                                                                                                    \n \n \n OPINION/ORDER FILED MARCH 20, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by ERIC NEWKIRK, Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n Claimant suffered an admittedly compensable injury to her right knee on July 3, \n2022.    On  May  30,  2023,  Form  AR-C  was  filed  on  behalf  of  claimant  by  her  attorney, \nLaura Beth York.  Based upon claimant’s failure to correspond with her, Attorney York \nfiled a Motion to Withdraw as Counsel.  This motion was granted by an order of the Full \nCommission  filed  August  17,  2023.    No  further  action  was  taken  in  this  claim  until \nrespondent filed a Motion to Dismiss on January 5, 2024.  A hearing was scheduled on \nthe  respondent’s  motion  for  March  13,  2024,  and  notice  of  the  hearing  was  sent  to \nclaimant by certified mail.  That notice was returned by the Post Office as “Attempted -  \nNot Known.   Unable to Forward.”   Claimant did not appear at the hearing and has not \n\nHedum – H205088 \n \n2 \n \nresponded to the respondent’s motion. \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nMotion  to  Dismiss should  be  and  hereby  is  granted.    This  dismissal  is  pursuant  to \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2256,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205088 KASSANDRA R. HEDUM, Employee CLAIMANT CASEY’S GENERAL STORES, INC., Employer RESPONDENT ACE AMERICAN INS./CCMSI, Carrier/TPA RESPONDENT OPINION/ORDER FILED MARCH 20, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Wash...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:56:41.108Z"},{"id":"alj-H300491-2024-03-20","awccNumber":"H300491","decisionDate":"2024-03-20","decisionYear":2024,"opinionType":"alj","claimantName":"Brooke Parrish","employerName":"Tyson Foods, Inc","title":"PARRISH VS. TYSON FOODS, INC. AWCC# H300491 MARCH 20, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PARRISH_BROOKE_H300491_20240320.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PARRISH_BROOKE_H300491_20240320.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H300491 \n \nBROOKE PARRISH, Employee                                                                     CLAIMANT \n \nTYSON FOODS, INC., Employer                                                            RESPONDENT                                                        \n \nTYNET CORPORATION, Carrier/TPA                                                    RESPONDENT                                                                                                    \n \n \n OPINION/ORDER FILED MARCH 20, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented  by  EVELYN  E.  BROOKS,  Attorney,  Fayetteville,  Arkansas; \nalthough not appearing at hearing. \n \nRespondents represented by J. MATTHEW MAULDIN, Attorney, Little Rock, Arkansas. \n \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss.    \n On January 24, 2023, claimant filed Form AR-C and a change of physician request.  \nOn March 16, 2023, the Commission granted claimant’s change of physician request to \nDr.  Blankenship  and  set  up  an  appointment  for  claimant  to  be  evaluated  by  Dr. \nBlankenship on April 10, 2023.  Claimant did not attend that appointment. \n On  January  19,  2024,  respondent  filed  a Motion  to Dismiss.    A  hearing  was \nscheduled  on  the  respondent’s  motion for  March  13, 2024.    Notice  of  the hearing  was \nsent  to  claimant  at  her  last  known  address.    On  February  5,  2024,  Attorney  Brooks \nindicated by e-mail that she had been unable to reach her client despite trying several \n\nParrish – H300491 \n \n2 \n \nmethods and that since claimant would not respond she was assuming that claimant no \nlonger wished to pursue her claim.  As a result, Ms. Brooks indicated that she would not \nobject to a dismissal. \n After my review of the respondent’s motion, Ms. Brooks’ response thereto, and the \nclaimant’s failure to respond to  the  respondent’s  motion  or  to  her  attorney, I  find  that \nrespondent’s motion to dismiss this claim should be and hereby is granted.  This dismissal \nis pursuant to Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2403,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300491 BROOKE PARRISH, Employee CLAIMANT TYSON FOODS, INC., Employer RESPONDENT TYNET CORPORATION, Carrier/TPA RESPONDENT OPINION/ORDER FILED MARCH 20, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkans...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:56:43.166Z"},{"id":"alj-H301091-2024-03-20","awccNumber":"H301091","decisionDate":"2024-03-20","decisionYear":2024,"opinionType":"alj","claimantName":"Diana Watkins","employerName":"Smith House, Inc","title":"WATKINS VS. SMITH HOUSE, INC. AWCC# H301091 MARCH 20, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Watkins_Diana_H301091_20240320.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Watkins_Diana_H301091_20240320.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301091 \n \n \nDIANA L. WATKINS, EMPLOYEE CLAIMANT \n \nSMITH HOUSE, INC., EMPLOYER RESPONDENT \n \nTECHNOLOGY INS. CO., CARRIER RESPONDENT \n \n \nOPINION FILED MARCH 20, 2024 \n \nHearing  before  Administrative  Law  O.  Milton  Fine  II  on March  15, 2024, in Jonesboro, \nCraighead County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr. William  C.  Frye,  Attorney  at  Law, North Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On March 15, 2024, the above-captioned claim was heard in Jonesboro, Arkansas.  \nA pre-hearing conference took place on January 23, 2024.  The Prehearing Order entered \non that date pursuant to the conference was admitted without objection as Commission \nExhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations,  issues,  and \nrespective contentions, as amended, were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  Following an amendment of the fourth,\n1\n they read: \n \n1\nStipulation  No.  4 originally read:  “The parties will  stipulate  at  the  hearing  to \nClaimant’s average weekly wage and compensation rates.” \n \n\nWATKINS – H301091 \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The employee/employer/carrier relationship existed on February 22, 2021, \nand at all other relevant times. \n3. Respondents have controverted this claim in its entirety. \n4. Claimant’s average weekly wage of $122.02 entitles her to compensation \nrates of $81.00/$61.00. \nIssues \n At the hearing, the parties discussed the issues set forth in Commission Exhibit 1.  \nThe following were litigated: \n1. Whether Claimant  sustained a compensable left  ankle injury  by specific \nincident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are as follows: \nClaimant: \n1. Claimant contends that she sustained a compensable left ankle injury when \nshe fell on ice in the parking lot of her workplace when she stepped out of \nher  vehicle.  She is  entitled  to medical  and temporary  total  disability \nbenefits. \n\nWATKINS – H301091 \n3 \n \nRespondents: \n1. Respondents contend that Claimant left the premises to go buy cigarettes \nand  failed  to  clock  out.    She  was  returning  to  the  facility  and  fell  in  the \nparking lot.  Claimant was not performing any employment services at the \ntime of her injury. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, and having had an opportunity to hear the \ntestimony of the witnesses and to observe their demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that she \nsustained a compensable injury to her left ankle by specific incident. \n5. Because of Finding of Fact/Conclusion of Law No. 4, supra, the remaining \nissues—whether Claimant is entitled to reasonable and necessary medical \ntreatment and to temporary total disability benefits—are moot and will not \nbe addressed. \nCASE IN CHIEF \nSummary of Evidence \n The witnesses at the hearing were Claimant, Daniel Henry, and Linda Lloyd.  The \nPrehearing Order was the only document admitted into evidence. \n\nWATKINS – H301091 \n4 \n \nAdjudication \nA. Compensability \n In this action, Claimant has alleged that she suffered a compensable injury to her \nleft ankle by specific incident on February 22, 2021, when she slipped on ice and fell onto \nthe  parking  lot  of  her  place  of  employment,  Comfort  Inn.   This  happened,  per  her \ntestimony,  as  she  was  exiting  her  vehicle.    She  had  begun  her  shift that  day for \nRespondent employer, where her job duties included tending the breakfast bar that was \nmade available to the customers of the hotel.  Claimant related that she returned to her \nvehicle that  morning to  retrieve  her  Yeti  cup.   Respondents,  in  turn,  have denied  that \nClaimant suffered a compensable injury of any type.  They have asserted, inter alia, that \nClaimant was not performing employment services at the time of her fall. \n Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injury, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the \nbody . . . arising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An injury \nis  “accidental”  only  if  it  is  caused  by  a  specific  incident  and  is \nidentifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe element “arising out of . . . [the] employment” relates to the causal connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n\nWATKINS – H301091 \n5 \n \n“when a causal connection between work conditions and the injury is apparent to the \nrational mind.”  Id. \n In Hudak-Lee  v.  Baxter  County  Reg.  Hosp.,  2011  Ark.  31,  378  S.W.3d  77,  the \nArkansas Supreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and \nin  the  course of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i)  (Supp. \n2009).  A compensable injury does not include an injury that is inflicted upon \nthe employee at a time when employment services are not being performed. \nArk.  Code  Ann.  §  11-9-102(4)(B)(iii) (Supp. 2009).  The phrase “in the \ncourse of employment” and the term “employment services” are not defined \nin  the Workers'  Compensation Act.  Texarkana Sch.  Dist.  v.  Conner, 373 \nArk. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court to define these \nterms in a manner that neither broadens nor narrows the scope of the Act.  \nId. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \nthe course and scope of employment.  Jivan v. Econ. Inn & Suites, 370 Ark. \n414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred within \nthe time and space boundaries of the employment, when the employee was \ncarrying out the employer's purpose or advancing the employer's interest, \ndirectly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 S.W.3d 57, we stated \nthat where it was clear that the injury occurred outside the time and space \nboundaries of employment, the critical inquiry is whether the interests of the \nemployer were being directly or indirectly advanced by the employee at the \ntime  of  the  injury.    Moreover,  the  issue  of  whether  an  employee was \nperforming employment services within the course of employment depends \non the particular facts and circumstances of each case.  Id. \n \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence any of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \n\nWATKINS – H301091 \n6 \n \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., 72 \nArk.  App.  309,  37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness, but may accept and translate \ninto findings of fact only those portions of the testimony that it deems worthy of belief.  Id. \n No medical  records were  offered into evidence.    Consequently,  the  evidentiary \nrecord is devoid of objective findings of an injury to Claimant’s left ankle.  She thus cannot \nshow that she sustained a compensable injury; her claim must fail at the outset.  Claimant \nhas not proven compensability by a preponderance of the evidence. \nB. Remaining Issues \n Because of the foregoing, the remaining issues—whether Claimant is entitled to \nreasonable and necessary medical treatment and temporary total disability benefits—are \nmoot and will not be addressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":9751,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301091 DIANA L. WATKINS, EMPLOYEE CLAIMANT SMITH HOUSE, INC., EMPLOYER RESPONDENT TECHNOLOGY INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 20, 2024 Hearing before Administrative Law O. Milton Fine II on March 15, 2024, in Jonesboro, Craighead County, Arka...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:2"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:56:45.232Z"},{"id":"alj-H302075-2024-03-19","awccNumber":"H302075","decisionDate":"2024-03-19","decisionYear":2024,"opinionType":"alj","claimantName":"Michael Ener","employerName":"Body Shop Truck & Trailer LLC","title":"ENER VS. BODY SHOP TRUCK & TRAILER LLC AWCC# H302075 MARCH 19, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Ener_Michael_H302075_20240319.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Ener_Michael_H302075_20240319.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H302075 \n \nMICHAEL ENER, \nEMPLOYEE                                                                                                              CLAIMANT \n \nBODY SHOP TRUCK & TRAILER LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nFIRSTCOMP INS. CO., \nCARRIER                                                                                                             RESPONDENT \n \nMARKEL SERVICE, INC., \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \n \nOPINION FILED MARCH 19, 2024 \n \nHearing conducted on Friday, March 15,  2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Steven Porch, in Forrest City, \nSt. Francis County, Arkansas. \n \nThe Claimant,  Mr. Michael  Ener,  pro  se,  of Wynne,  Arkansas, did  not appear in  person at  the \nhearing.  \n \nThe Respondents were represented by the Honorable Brandon Cole, Little Rock, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  The Claimant worked for the Respondent/Employer as an alignment helper. He allegedly \ninjured his  right  shoulder on March  2,  2023, while  turning  a  tie  rod  tube  to  align  a  truck. The \nClaimant reported his injury to the Respondent/Employer the same day. The Claimant then filed a \nForm AR-C on March 29, 2023, through his attorney Laura Beth York. However, Laura Beth York \nsubsequently filed a motion to withdraw with the Commission on July 27, 2023. This motion was \ngranted on August 8, 2023. Since the filing of Claimant’s AR-C on March 29, 2023, the Claimant \nhas not requested a full hearing.  \n\nENER, AWCC No. H302075 \n \n2 \n \nThe Respondents filed a Motion to Dismiss on October 12, 2023, requesting this claim be \ndismissed for lack of prosecution. The Claimant was sent notice of the motion to dismiss from the \nCommission  on  November 7,  2023.  The  Claimant  did  not  respond  to  the  motion  in  writing. In \naccordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice of \nboth the respondents’ motion to dismiss and the hearing notice at his current address of record via \nthe  United  States  Postal  Service  (USPS),  First  Class  Certified  Mail,  Return  Receipt  Requested, \nwhich he received on January 29, 2024. The hearing took place on March 15, 2024. The Claimant \ndid not show up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters  of  record,  including Commission Exhibit  1,  non-medical  records,  consisting  of \nseven pages, I hereby make the following findings: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had notice of the March 15, 2024, hearing. \n \n3. The Claimant has failed to prosecute his claim under AWCC Rule 99.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted.     \n \nDISCUSSION \n Consistent  with both Ark.  Code  Ann. §  11-9-702(a)(4) and  AWCC  Rule 099.13, the \nCommission scheduled and conducted a hearing on the Respondents’ motion to dismiss. I do find \nthat the Respondents have proven by the preponderance of the evidence, introduced at the hearing, \nand contained in the record, that Claimant has not requested a hearing, nor has he taken any action \n\nENER, AWCC No. H302075 \n \n3 \n \nto pursue his claim as of the hearing date. Therefore, I find by the preponderance of the evidence \nthat the Claimant has failed to prosecute his claim under AWCC Rule 99.13.  \n \n     CONCLUSION \n Based  on  the Findings  of Fact  and Conclusions  of Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted, and this claim is hereby dismissed without prejudice. \n \n     IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":4286,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H302075 MICHAEL ENER, EMPLOYEE CLAIMANT BODY SHOP TRUCK & TRAILER LLC, EMPLOYER RESPONDENT FIRSTCOMP INS. CO., CARRIER RESPONDENT MARKEL SERVICE, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MARCH 19, 2024 Hearing conducted on Friday, March 15, 20...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:56:36.931Z"},{"id":"alj-H004773-2024-03-19","awccNumber":"H004773","decisionDate":"2024-03-19","decisionYear":2024,"opinionType":"alj","claimantName":"Donald Hodge","employerName":"Dept. Of Human Services","title":"HODGE VS. DEPT. OF HUMAN SERVICES AWCC# H004773 MARCH 19, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HODGE_DONALD_H004773_20240319.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HODGE_DONALD_H004773_20240319.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H004773 \n \nDONALD P. HODGE, EMPLOYEE       CLAIMANT \n \nDEPT. OF HUMAN SERVICES, EMPLOYER             RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/TPA                          RESPONDENT \n \n \n \nOPINION FILED 19 MARCH 2024 \n \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe on 20 December 2023 in Little Rock, Arkansas. \n \nMr. Gregory R. Giles, of Moore, Giles & Matteson, LLP, appeared for the claimant. \n \nMr. Robert H. Montgomery, of Public Employee Claims Division, appeared for the \nrespondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 20 December 2023 in Little Rock, Arkansas, \nafter the parties participated in a pre-hearing telephone conference on 3 October 2023. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on the same day the conference. The Order stated the following ISSUES TO \nBE LITIGATED: \n1.  Whether the claimant was owed for underpayments of temporary total disability and \npartial disability benefits. \n2.  Whether the claimant was entitled to an impairment rating associated with a \ncervical injury. \n\nHODGE- H004773  \n2 \n \n3.  Whether the claimant was entitled to additional medical treatment.\n1\n \n4.  Whether the claimant is entitled to wage-loss disability benefits. \n5.  Whether the claimant is entitled to an attorney’s fee. \nThe parties’ CONTENTIONS, as set forth in their pre-hearing questionnaire responses, \nwere incorporated into the Pre-hearing Order. The CLAIMANT contends: \n1. That he was initially assessed at maximum medical improvement (MMI) with \nregard to all injuries on 11 August 2021. \n2. That the assessment was premature, and he did not reach MMI until 3 May 2022. \n3. That he was underpaid temporary total disability (TTD) benefits as a result of those \ndifferent assignment dates. \n4. That he was entitled to TTD between 20 May 2021 and 5 December 2021.\n2\n \n5. That his permanent partial disability (PPD) payments should have started on 3 May \n2022 and that he would be entitled to PPD benefits for a five percent (5%) \nimpairment rating to his right shoulder and a ten percent (10%) impairment rating \nto his lower back. \n6. Also, that given the nature of the “posterior disc bulges identified at C5-6 and C6-7 \nwith increased signal associated cervical cord” that he should be awarded a cervical \nimpairment rating of at least five percent (5%). \n7. That he should be awarded wage-loss disability benefits in excess of the anatomical \nimpairment ratings assigned. \n \n1\n At the beginning of the hearing, the entitlement to ongoing treatment issue was \nwithdrawn by the claimant. TR at 13-14. \n2\n The Prehearing Order lists the claim for TTD beginning on 13 May 2021, but at the \nbeginning of the hearing, the claimant stated that 20 May 2021 was the correct date for \nthose claimed benefits to begin. TR at 13. \n\nHODGE- H004773  \n3 \n \n8. That he is currently prescribed pain management medications through his primary \nphysician Dr. Becker, which he contends are reasonable and necessary treatments \nfor his compensable condition(s) for which the respondents should be responsible for \npayment.\n3\n \n9. And that he is entitled to an attorney’s fee. \nThe RESPONDENTS contend: \n1. That the claimant reported lifting a box of blueprints that slid and hit his right foot. \n2. That he reported falling, grabbing a wheeled cart, and sliding into a file cabinet, and \nthat the claim was accepted as compensable with appropriate benefits being paid. \n3. That appropriate TTD and PPD benefits have been paid.  \n4. That the claimant underwent right shoulder arthroscopy on 18 December 2020 with \nDr. Reynolds and was found to be at MMI on 11 May 2021. The claimant was \nassigned a ten percent (10%) whole-body impairment rating by Dr. Reynolds on 7 \nJune 2021, which the respondents accepted and paid. \n5. That Dr. Bruffett treated the claimant for lumbar symptoms and that the medical \nrecords indicate that the claimant did not want any additional surgery, so Dr. \nBruffett found him to be at MMI on 11 May 2021. The claimant’s full-duty work \nstatus was continued on 21 June 2021. \n6. That several months later, on 15 November 2021, the claimant indicated that he was \ninterested in surgery. An L4-5 laminectomy was then performed on 2 December \n2021. \n7. TTD benefits were reinstated after the surgery and paid through 2 May 2022.  \n8. PPD benefits were then initiated and paid through 9 March 2023. \n \n3\n See FN1. \n\nHODGE- H004773  \n4 \n \n9. TTD and PPD benefits were appropriately paid and that the claimant is not entitled \nto TTD benefits between 20 May 2021\n4\n and 5 December 2021, as he declined \nadditional treatment—namely surgery— recommendations from his authorized \nphysician and was found at the time to be at MMI and released to full-duty. He \ncannot now claim entitlement to benefits during that period when he refused \ntreatment. \n10. That not only is the claimant not entitled to any additional TTD or PPD benefits, but \nhe was actually overpaid in the amount of $1,589. \n11. That the claimant is not entitled to wage-loss benefits as he is working in \nconstruction oversight consistent with his experience and currently waiting for a \ndetermination on Social Security benefits. \n12. That the respondents continue to pay reasonably necessary medical expenses, \nincluding those incurred from Dr. Becker.\n5\n \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on 15 June 2020 when the \nclaimant sustained compensable injuries to his back, neck, right foot, right arm/right \nshoulder and right hip. Those injuries were accepted, and benefits were paid. \n3.  The claimant’s average weekly wage was $906.90, entitling him to compensation \nrates of $605.00 for temporary total disability and $454.00 for permanent disability. \n4.  Claimant reached maximum medical improvement with regard to his right foot \ncontusion/fifth toe fractures on 8 October 2020, with no impairment rating (or a rating of \nzero percent 0%). \n \n4\n See FN2. \n5\n See FN1. \n\nHODGE- H004773  \n5 \n \n5.  Claimant reached MMI with regard to his compensable shoulder injuries on 10 May \n2021, with an assigned impairment rating of five percent (5%) to the body as a whole. \n6.  Claimant was initially assessed at MMI with regard to his low back injury on 11 \nAugust 2021, but was later deemed to require surgery that occurred on 2 December 2021, \nwith MMI being found again on 3 May 2022 with a ten percent (10%) impairment rating \nassigned at that time. \nThe claimant was the sole WITNESS testifying at the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law \nunder ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The previously noted stipulations are accepted as fact. \n3.  The claimant has not satisfied his burden for an underpayment on or additional \npayments owed for TTD benefits. \n4.  The claimant has not satisfied his burden for an underpayment of PPD benefits \nunder his contention that “PPD benefits should have started on May 3, 2022.” The records \nreflect that PPD payments began on that date. \n5.  The claimant has not satisfied his burden in showing that he is entitled to an \nimpairment rating for a cervical injury. \n6.  The claimant has not satisfied his burden in showing that he is entitled to wage-loss \ndisability benefits. \n7.  Consistent with these findings, the claimant is not entitled to an attorney’s fee. \nIII.  HEARING TESTIMONY and EVIDENCE \nClaimant Donald P. Hodge \n\nHODGE- H004773  \n6 \n \n At the time of his compensable injury, Mr. Hodge was working as a Training and \nProject Manager at the Department of Human Services’ Life Safety Code Department. He \nexplained that the department was responsible for ensuring that institutional facilities and \nbuilding projects met certain safety standards. The job entailed both reviewing plans and \nblueprints in the office and field work at construction sites. [TR at 17.] \n On the day of his injury, 15 June 2020, the claimant stated that he was carrying a \nbox of blueprints in the office when fell from the box and hit his foot, causing him to fall \ninto a file cabinet. [TR at 19-20.] He was transported by ambulance to the emergency \ndepartment at Baptist Hospital in Little Rock, where he reported right shoulder pain, right \nhip pain, thoracic spine tenderness, lumbar tenderness, and right foot pain. [Cl. Ex. No 1 at \n37.] The ordered X-rays showed no acute fractures, but some degenerative changes. He was \nassessed with a right foot contusion, hip arthralgia, and acute shoulder pain, and he was \ndirected to follow-up with his primary physician. [Id. at 40-42.] \n Mr. Hodge followed up at the Morrilton Medical Clinic the following day, where he \nwas taken off work until the following week and ordered to see physical therapy. He \npresented again to the clinic on 22 June 2020 when it was noted that physical therapy had \nnot yet been approved. Initiating therapy was again ordered, and the claimant was released \nto work at modified duty for approximately two weeks, noting limitations for long periods of \nsitting and limited use of his right upper extremity. [Id. at 76-82.] \n The claimant could not recall exactly when he returned to work, but that it would \nhave only been for a couple of days, as he had already planned to be out on vacation for a \ncouple of weeks at the time following his fall. He testified that he eventually received a call \nwhile leaving a physical therapy appointment and was informed that his employment was \nbeing terminated. [TR at 21-22.] He later received a letter dated 14 July 2020 confirming \nhis termination. [Cl. Ex. No 1 at 83-84.] \n\nHODGE- H004773  \n7 \n \n He continued with physical therapy and was referred for an MRI and further \nspecialty care. Mr. Hodge saw Dr. Robert Martin for his foot pain on 3 August 2020. Dr. \nMartin ordered X-rays that revelaed a fracture to the right fifth toe, but noted it was \nhealing on its own. He ordered light duty and set a follow-up after a month. [TR at 23; Cl. \nEx. No 1 at 91-94]. Mr. Hodge testified that his foot was healed and agreed that “everything \nis good there.” [TR at 24]. \n The claimant saw Trent Tappan, PA-C, at OrthoArkansas on 12 August 2020. Mr. \nHodge recalled Tappan initially recommending a steroid injection for his spine [TR at 24], \nbut the records reflect an initial assessment of low back pain and lumbar spinal stenosis, \nwith a plan for continued physical therapy, following up in one month, and continuing with \nrestricted activities [Cl. Ex. No 1 at 97-99].  \n Mr. Hodge also had an appointment for his shoulder with Dr. Kirk Reynolds that \nsame day. Dr. Reynolds suspected right rotator cuff and labrum injuries and ordered an \nMRI for better evaluation. He recommended modified work with no lifting, pushing, or \npulling, and no work above the shoulder for the right arm. Dr. Reynold also noted that Mr. \nHodge was not at MMI. [Cl. Ex. No 1 at 103].  \n On 9 September 2020, the claimant saw Trent Tappan again and reported \ncontinuing low back pain that radiated down his right leg. The note reflects that physical \ntherapy did not seem to help the pain. A steroid injection was recommended at L4-5 on the \nright side. Tappan noted the spinal stenosis again and that the injection could be more \ndiagnostic in nature than therapeutic, but hoped it would provide some relief. [Cl. Ex. No 1 \nat 108]. \n Mr. Hodge followed up with Dr. Martin the following day and was released to full-\nduty without restrictions on his foot injuries. He was not yet deemed at MMI, however, and \nscheduled to return again in one month for a final check. [Cl. Ex. No 1 at 113.] \n\nHODGE- H004773  \n8 \n \n The claimant then presented to Trent Tappan again on 7 October 2020 for his back \npain. Mr. Tappan noted that Mr. Hodge was doing much better since the injection and \nreleased him to full duty at MMI without any restrictions. [Cl. Ex. No 1 at 121-122.]  \n Mr. Hodge saw Dr. Martin for his foot again the following day, 8 October 2020, and \nwas released related to his foot at MMI with no restrictions and a zero percent (0%) \nimpairment rating. [Cl. Ex. No 1 at 125]. \n On 26 October 2020, the claimant presented to Dr. Reynolds again to review the \nshoulder MRI results and discuss treatment options. They agreed that right should surgery \nwas appropriate, and Dr. Reynolds continued the claimant’s modified work duty status, \nrestricting his right upper extremity use. [Cl. Ex. No 1 at 130.] Mr. Hodge testified that his \nTTD benefits continued at this time. [TR at 24.] The right shoulder arthroscopy was \nperformed on 19 December 2020. [Cl. Ex. No 1 at 131-134.] Part of the tear was irreparable, \nbut the procedure was otherwise completed without issue. The Claimant followed up with \nDr. Reynolds on 28 December 2020, where he was found to be doing well without new \ncomplaints. A return visit was scheduled for one month out. [Cl. Ex. No 1 at 138.] \n The claimant then saw Trent Tappan for back pain again on 13 January 2021. The \nnote reflects that “he seemed to do great with the last injection,” but was experiencing pain \nagain. [Cl. Ex. No 1 at 144.] They discussed surgical and non-surgical treatment options and \ndecided to move forward with another injection. \n Mr. Hodge returned to Dr. Reynolds on 25 January 2021, where he was found to be \nrecovering satisfactorily from the shoulder procedure. A recent MRI study of his cervical \nspine was reviewed, and Dr. Reynolds noted “degenerative disc disease with bulges at C5-\nC6 and C6-C7.” [Cl. Ex. No 1 at 151]. The note reflects that he did not see any surgical \nindications in the cervical process but referred the claimant back to Mr. Tappan for further \n\nHODGE- H004773  \n9 \n \nreview. Mr. Hodge’s modified duty status was continued at that time, with a visit scheduled \nin another six weeks.  \n A second spine injection was performed on 29 January 2021, and the claimant \nfollowed up again with Tappan on 8 February 2021. Tappan noted that the pain on the \nright side of the back had improved, but some chronic pain persisted. He also noted at that \nvisit that, “[h]e seems somewhat down [and] out today because he has not worked in the \npast few months” and “feels like his pain limits him.” [Cl. Ex. No 1 at 157-159.] Mr. Hodge \nalso reported neck pain, and they reviewed the MRI study of his cervical spine. Tappan saw \nsome foraminal stenosis around C6-C7 and possibly at C7-T1 and believed that Mr. Hodge’s \nneck complaints were related to the stenosis. They discussed again the possibility of a \nlumbar decompression procedure if his back pain did not improve, and he was directed to \nreturn as needed. Id. \n At a 9 March 2021 visit with Dr. Reynolds, they discussed his status and progress \nthree months after the right shoulder arthroscopy and that the only “cure” for his \nirreparable tear would be a reverse shoulder arthroplasty. The claimant’s restrictions were \ncontinued, he was found not to be at MMI, and a return visit was set for six weeks out. [Cl. \nEx. No 1 at 163.] \n The claimant then saw Tappan again on 3 May 2021, when he reported a new \ncomplaint of left side back and leg pain. Tappan noted the first back injection provided \ngreat relief, but the second one did not. He described discussing being at a “fork the road” \nand he needed to reconsider surgery or “just leave this alone altogether.” Claimant was \nreferred to Dr. Bruffett for further discussions on surgery, and an updated MRI was \nordered. [Cl. Ex. No 1 at 168.]  \n Mr. Hodge presented again to Dr. Reynolds on 10 May 2021 to review his post-\noperative shoulder condition. They discussed the risks of a reverse arthroplasty and the \n\nHODGE- H004773  \n10 \n \nbenefits of continued strengthening at home. The claimant declined an injection that was \noffered in the clinic, and he was not interested in pursuing arthroplasty. Dr. Reynolds \nplaced the claimant at MMI and referred him for a Functional Capacity Evaluation (FCE) \nfor an assessment of his deficits, noting that he would follow that report with permanent \nrestrictions and any appropriate impairment rating. [Cl Ex. No 1 at 175.] The FCE found \nhim to have an eight percent (8%) impairment rating to the upper extremity which \ntranslated to a five percent (5%) permanent rating to the whole person. [Cl Ex. No 1 at 184.] \nHe was also recommended in the Light Classification of work. [Cl Ex. No 1 at 187.] \n The claimant first saw Dr. Bruffett, after a referral from Tappan, on 26 May 2021. \nThey discussed possible surgical intervention to alleviate his symptoms, but decided that \nspine surgery was be “a last resort.” [Cl. Ex. No 1 at 209.] The note makes no mention of \nwork restrictions. \n On 16 June 2021 the claimant saw Dr. Bruffett again, and after another steroid \ninjection, where they discussed different directions for his course forward. [Cl Ex. No 1 at \n215.] Low back pain and right knee pain were noted as the presenting symptoms. Dr. \nBruffett noted his discomfort with simply prescribing opioids and that the claimant should \n“go get a job,” after which he hoped to release him at MMI. He noted further that Mr. \nHodge should discuss his care and continuing prescription pain medication with his \nprimary physician and that they could “need to have surgery” despite concerns around its \nuncertain outcomes. The note ended with, “[w]e will see how this goes.” [Id.] \n The claimant returned to Dr. Bruffett on 11 August 2021 and was released without \nrestriction and placed at MMI with a seven percent (7%) impairment rating of the whole \nperson. [Cl Ex. No 1 at 220.] They discussed Mr. Hodge’s primary physician prescribing as-\nneeded medication for pain, and the note reflects that those prescriptions “would be under \nMr. Hodge’s regular insurance not Workers’ Comp.” It goes on, “I think he has completed \n\nHODGE- H004773  \n11 \n \nthe healing phase for his work injury. He really does not want to have surgery because I \ncannot guarantee him that it would completely alleviate his pain.” [Id.] \n Mr. Hodge returned, again, to Dr. Bruffett on 8 November 2021, when they \ndiscussed, again, the risks and benefits of spinal surgery against the option to “just leave \nthis alone and live with what he has.” [[Cl Ex. No 1 at 235.] The claimant opted for surgery \nto address the ongoing pain in his lower back. That procedure, bilateral hemilaminotomies \nat L4-L5 with decompression for stenosis, occurred on 2 December 2021. [Cl Ex. No 1 at \n236.] The claimant testified that his TTD payments were reinstated after the back surgery. \n[TR at 33-34.] \n Dr. Bruffett saw the claimant post-surgically on 29 December 2021 and then again \non 9 February 2022. [Cl Ex. No 1 at 243, 248.] During the latter visit, he ordered physical \ntherapy and discussed a return-to-work status and possible FCE, along with anticipating \nplacing him at MMI at the next visit. At the subsequent visit on 11 April 2022, Dr. Bruffett \nordered the FCE, noting, “I will see him back afterwards and then I can calculate his \nimpairment rating and such. There is currently no change in his work status.” [Cl Ex. No 1 \nat 255.] \n The FCE occurred on 25 April 2022, and the report showed that the claimant gave \nreliable effort. Dr. Bruffett reviewed the report with him on 2 May 2022 and adopted its \nrecommendation for a Light Classification of work. The claimant was released at MMI with \npermanent light duty restrictions and a ten percent (10%) whole body impairment. [Cl Ex. \nNo 1 at 281.] The note also reflected a referral to Dr. Becker for pain management. A letter \nfrom the Arkansas Insurance Department to Mr. Hodge, dated 4 May 2022, acknowledged \nDr. Bruffett’s permanent impairment rating and advised of him associated PPD benefits \nbeginning on 3 May 2022. [Cl Ex. No 1 at 284.] \n\nHODGE- H004773  \n12 \n \n The claimant testified that the respondents have covered the costs of his ongoing \ncare under Dr. Becker. [TR at 36.] He also testified, consistent with his Contentions, that \nhe felt that he was entitled to an impairment rating and compensation for pain in his neck, \nagreeing with his attorney that he should be entitled to a rating of at least five percent \n(5%). [TR at 35]. \n Mr. Hodge also testified about his work history and recent coordination with a \nvocational counselor. [TR at 38-46.] He said that he was awaiting a determination on a \nSocial Security Disability application and that he was already receiving some retirement \nbenefits from the state. When asked how long he intended to work, he said until the age of \n67, “but if, you know, working for myself, there’s no retirement. There are no benefits. I \nwould have to work until I just couldn’t work anymore. I would just have to continue to \nwork.” [TR at 50.] He affirmed that he was requesting wage loss beyond the benefits \nalready assigned for his impairment ratings. [TR at 51.] \n On cross examination, Mr. Hodge confirmed various aspects of his work history, \ncertifications, and experience, including work as a Certified Welding Inspector, Certified \nAppraiser, Licensed Home Inspector, Certified Lead Paint Inspector, and Licensed General \nContractor, with knowledge of HUD quality standards, and Life Safety Code(s). He \npreviously owned a home remodeling company and a truck washing and soap \nmanufacturing business. [TR at 57-58.] In his role at DHS, he was a supervisor responsible \nfor four to five other employees. He discussed the intersection of or referencing between Life \nSafety Code and five prevention, electrical, and plumbing codes and that he trained and \noversaw others’ work ensuring compliance with the same. [TR at 60-61.] \n The claimant explained that he recalled discussing surgical options for his back with \nDr. Bruffett, but that he was hesitant given stories he heard from others who had not have \nfavorable post-surgical outcomes. He said that he vaguely remembered being in shock when \n\nHODGE- H004773  \n13 \n \nDr. Bruffett released him at MMI on 11 August 2021, because he was “still having lots of \npain.” [TR at 75.] Mr. Hodge agreed that he began receiving TTD benefits again after \nhaving the back procedure in December of 2022. [TR at 77.] \n Discussing his current happenings, Mr. Hodge testified that he was currently doing \ncontract inspection work, but that he was looking for other work with good benefits. [TR at \n79-80.] He said that he could drive a couple of hours before needing to get out of the car to \ntake a break. When not working, he might go back to bed until the middle of the morning \nafter seeing his wife off to work in the early morning hours. He often spends time on social \nmedia, watching tv, or visiting with family. He likes to fish when he feels up to it or to \nspend time with his grandchildren. [TR at 81-84.]  \n On Redirect examination, the claimant stated that he would love to try going back to \nwork, “if they would allow me accommodations and stuff, you know, everything I need to get \nthrough the day, I would love to give it a shot.” [TR at 87.] He is currently not interested in \nshoulder replacement surgery, but “if I ever get the chance to retire, then, it would be an \noption, then, because I wouldn’t have to work.” [TR at 90.] \n The claimant provided several letters reflecting his vocational rehabilitation \nmeetings with Keondra Hampton. According to her initial report, dated 27 May 2022, the \nclaimant was not interested in returning to work for any state agency. [Resp. Ex. No2 at 15.] \nHe confirmed the same in his testimony, saying that he “did not think it was advantageous \nat all for me to pursue that.” [TR at 86.] In her 1 July 2022 Progress Report, Ms. Hampton \nstated, “Mr. Hodge is an excellent candidate to return to the workforce. He has a stable \nwork history and ahs acquired some skills and transferrable skills from his education, \ntraining, and work experience that he should be able to utilize in returning to a new lighter \ncapacity job in the future.” [Cl. Ex. No 1 at 290.] Her 15 September 2022 Progress Report \nnoted that he declined a home inspection job due to the pay. [Cl. Ex. No 1 at 299.] But that \n\nHODGE- H004773  \n14 \n \nreported went on to note that he remained an “excellent candidate to return to the \nworkforce” and that his work experience “afforded him the opportunity to acquire \nsupervisory and leadership skills, along with other skills.” She noted in a 31 October 2022 \nreport that he again declined a part-time inspector position because he did not believe the \nwork opportunities were consistent enough. [Cl. Ex. No 1 at 304.] A Progress Report from \nJanuary 2023 noted Mr. Hodge disapproving of another job due to a lower wage than he \nrequired. [Cl. Ex. No 1 at at 319.] \n The respondents contend that the claimant was overpaid on his PPD benefits. On 16 \nMarch 2023, Mr. Hodge received a letter from the Arkansas Insurance Department \nadvising that he was “inadvertently overpaid workers’ compensation benefits in the amount \nof $1,859.00 for your PPD payments.” [Cl. Ex. No 1 at 331.] The letter also stated that the \noverpayment would be credited against any future payments and that he would be \nresponsible for reimbursing any remaining balance. The respondents exhibits, however, \nreflect that his last PPD payment was issued on 9 March 2023. [Resp. Ex. No 1 at 6.] \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the pre-hearing conference, are outlined above. It \nis settled that the Commission, with the benefit of being in the presence of the witness and \nobserving his or her demeanor, determines a witness’ credibility and the appropriate weight \nto accord their statements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 \nS.W.2d 522 (1999).   \nA. The Claimant is Not Entitled to Additional Temporary Total Disability Benefits. \n Temporary Total Disability is that period within the healing period in which an \nemployee suffers a total incapacity to earn wages (emphasis added). Arkansas State \nHighway and Transportation Dept. v. Breshears, 272 Ark. App. 244, 613 S.W.32d 392 \n(1981). It is the claimant’s burden to prove that he or she is within the healing period and \n\nHODGE- H004773  \n15 \n \nsuffers a total incapacity to earn wages in the same or other employment. Paalazolo v. \nNelms, 46 Ark. App. 130, 877 S.W.2d 938 (1994). \nThe parties stipulated that the claimant was found to be at MMI for his low back injury \non 11 August 2021. Their disagreement on his entitlement TTD benefits runs, however, \nbetween the dates of 20 May 2021, when the records\n6\n show that they stopped, and 5 \nDecember 2021, when they began again following his back surgery. The records reflect that \nthe claimant was first released by Trent Tappan without restrictions and without an \nimpairment rating for his back on 7 October 2020. He contends that despite that release, he \ncontinued to treat. While the claimant remained off work and received TTD benefits beyond \nthe release from Tappan, his work and benefits status during that time was related to his \nshoulder injury. \n The claimant first saw Dr. Bruffett, to whom he was referred for possible surgical \noptions after release from Tappan, on 26 May 2021. That encounter made no mention of \nwork status or any restrictions. Instead, they discussed possible surgery being agreed as a \n“last resort.” No return appointment was set at that time. \n Mr. Hodge next saw Dr. Bruffett on 16 June 2021. The notes indicate that Dr. \nBruffett lifted “any restrictions” and advised Mr. Bruffett to go get a job—something that is \nclearly inconsistent with the notion of him being totally disabled and unable to work for \nmedical reasons. At the 11 August 2021 visit, stipulated by the parties as the MMI date, \nDr. Bruffett made clear that the claimant had “completed the healing phase” for his back \ninjury. He noted, again, that he did not have any physician-directed restrictions and even \nadvised that future visits with his PCP for pain medication would be “under Mr. Hodge’s \n \n6\n See Resp. Ex. No 1 at 1-3. \n\nHODGE- H004773  \n16 \n \nregular insurance and not Workers’ Comp.” This clearly indicates Dr. Bruffett’s \nanticipation\n7\n that the life of Mr. Hodge’s claim had ended. \n That the claimant ultimately decided to undergo a covered surgical procedure and \nwas then entitled TTD benefits does not impart any entitlement to TTD benefits looking \nback to the time when he was first released, having opted against surgery at the earlier \ntime. The record lacks medical findings or other evidence to support finding that the \nclaimant was incapable of working after May of 2021 (and until his surgery in December of \nthat year). Whether he could have been still considered in a healing period between May \nand the 11 August MMI finding is not dispositive. There is insufficient evidence to find that \nhe was in a healing period and incapable of working between May and December of 2021. \nB.  The Claimant Failed to Prove an Underpayment on Permanent Partial Disability \nBenefits. \n \nIn his Contentions, the claimant stated, “his PPD benefits should have started on May \n3, 2022....” The records introduced by the respondents, however, show that he received PPD \nbenefits for periods between 7 June 2021 and 5 December 2021 and then again between 3 \nMay 2022 and 13 March 2023 (with a terminal check issued for the latter period on 9 March \n2023).\n8\n  \nC.  The Claimant Failed to Prove that he was Entitled to an Impairment Rating for a \nCervical Injury. \n \nThe claimant provided scant testimony on a neck injury. The medical records show little \nreference to any diagnostic or treatment efforts associated with neck pain beyond the MRI \nthat showed some evidence of degenerative disc disease. None of the providers attempted to \n \n7\n Here, I refer to Dr. Bruffett’s practical application of his apparent understanding of the \nbasics of our Workers’ Compensation laws and do not intend to expand his statement \nbeyond that. That is, whether Dr. Bruffett failed to consider or is even aware of a \nrespondent’s potential responsibility for ongoing prescriptions related to a compensable \ninjury after a finding of MMI is not of consequence. \n8\n See Resp. Ex. No 1 at 4-6. \n\nHODGE- H004773  \n17 \n \naddress a cervical injury with regard to it being a focus of treatment or rehabilitative \nefforts. Instead, it seems that the claimant, at times, mentioned that he had neck pain, it \nwas considered and then left alone, either as not rising to the level of further clinical effort \nor as not related to the workplace injury and of a degenerative nature. In either case, I do \nnot find evidence supporting a finding of an impairment rating, especially when no provider \nattempted to offer the same. \nD.  The Claimant Failed to Prove that he was Entitled to Wage-Loss Benefits. \nThe wage-loss factor is the extent to which an injured worker’s compensable injury \nnegatively impacts that person’s ability to earn a livelihood. Rice v. Ga.-Pacific Corp., 72 \nArk. App. 148, 35 S.W.3d 328 (2000). “In considering claims for permanent partial disability \nbenefits in excess of the employee's percentage of permanent physical impairment, the \nWorkers' Compensation Commission may take into account, in addition to the percentage of \npermanent physical impairment, such factors as the employee's age, education, work \nexperience, and other matters reasonably expected to affect his or her future earning \ncapacity.” Ark. Code Ann. § 11-9-522(b)(1). A claimant’s motivation to return to work may \nbe considered also. Rice, supra. If a work-related injury combines with a preexisting disease \nor condition or the natural process of aging to cause or prolong the disability or need for \ntreatment, permanent benefits shall be payable for the resultant condition only if the \ncompensable injury is the major cause of the permanent disability or need for treatment. \nArk. Code Ann. § 11-9-102(4)(F)(ii)(a). Major cause means something that is more than fifty \npercent (50%) of the cause. Ark. Code Ann. § 11-9-102(14)(A). \nI do not find that the claimant met his burden for proving that he is entitled to \nwage-loss benefits in excess of the anatomical ratings assigned by his physicians. At the \ntime of the hearing, the claimant was, in fact, working in a field commensurate with his \narea of knowledge and experience. The records from his vocational rehabilitation showed \n\nHODGE- H004773  \n18 \n \nthat he had other work opportunities that he was not interested in because he hoped for a \nhigher wage. He did not provide sufficient evidence that his difficulty in finding work or \nthat any decrease in his ability to earn was causally connected to his compensable injuries \nor resultant disabilities. Mr. Hodge’s concerns about accommodations do not rise above his \nown speculations as to what he may need to be successful in some future job, not actual \nexperience. He did, however, relay at one point to the vocational consultant that he felt his \ndifficulty in finding a satisfactory position was due to his not having a bachelor’s degree.\n9\n \nOn this claim, his evidence simply fails to meet the burden for an entitlement to additional \nbenefits above the anatomical ratings already assigned. \nE.  Attorney’s Fee \nBased on the findings above, the claimant has not proven that he is entitled to an \nattorney’s fee. \n \nV.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE  \n  \n \n9\n See Cl. Ex. No 1 at 319.","textLength":33890,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H004773 DONALD P. HODGE, EMPLOYEE CLAIMANT DEPT. OF HUMAN SERVICES, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED 19 MARCH 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law J...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:3","denied:2"],"injuryKeywords":["cervical","shoulder","back","lumbar","neck","hip","thoracic","fracture"],"fetchedAt":"2026-05-19T22:56:39.038Z"},{"id":"alj-H203870-2024-03-18","awccNumber":"H203870","decisionDate":"2024-03-18","decisionYear":2024,"opinionType":"alj","claimantName":"Randal Billingsley","employerName":"Coralee’s Memphis-Style Chicken","title":"BILLINGSLEY VS. CORALEE’S MEMPHIS-STYLE CHICKEN AWCC# H203870 MARCH 18, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Billingsley_Randal_H203870_20240318.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Billingsley_Randal_H203870_20240318.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203870 \n \n \nRANDAL L. BILLINGSLEY, EMPLOYEE CLAIMANT \n \nCORALEE’S MEMPHIS-STYLE CHICKEN, \nEMPLOYER RESPONDENT \n \nSECURITY NATL. INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MARCH 18, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on March 15, 2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Mr. William  C.  Frye,  Attorney  at  Law, North Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on March 15,  2024, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.   In \norder  to  address  adequately  this  matter  under  Ark.  Code  Ann. § 11-9-705(a)(1) \n(Repl. 2012)(Commission must “conduct the hearing . . . in a manner which best \nascertains the rights of the parties”), and without objection, I have into the record \nwhat   has   been   marked   as   Commission   Exhibit   1, forms,   pleadings,   and \ncorrespondence from the Commission’s file on the claim, consisting of 27 pages. \n \n\nBILLINGSLEY – H203870 \n \n2 \n \n The record reflects the following procedural history: \n On May 25, 2022, Claimant filed a Form AR-C, alleging that he injured his \nback on April 15, 2022, while unloading a truck at work. No request for a hearing \non the claim accompanied this filing.  However, on July 22, 2022, Claimant wrote \nthe  Committee  to  request a  hearing.    The  file  was  initially  assigned  to  the  Legal \nAdvisor  Division.    Claimant  expressed  a  willingness  to  mediate;  but  he  failed  to \nreturn  his  preliminary notice.    For  that  reason,  the  file  was assigned to  my  office \non  August  23,  2022.    Prehearing  questionnaires  were  issued  to  the  parties  on \nAugust   26,   2022.      While   in   this   instance   Claimant   promptly   returned   the \npreliminary notice, he failed to file a questionnaire response.  For that reason, on \nSeptember 22, 2022, my office returned his file to the Commission’s general files. \n On March 29, 2023, Respondents filed the instant Motion to Dismiss under \nAWCC R. 099.13.  The file was reassigned to me on March 30, 2023; and on April \n5,  2023,  I  wrote  Claimant,  requesting  that  he  respond  to  the  motion  within  20 \ndays.  He did so on April 18, 2023.  In this letter, received by my office on April 24, \n2023, and indicating that its origin was the Craighead County Jail, Claimant wrote:  \n“I Randal Billingsley with the AWCC # of H203870, object to the dismissal of my \ncase.  I plan on working on the case on my end very soon.  Thank you.”  Based \non this, I held the motion in abeyance and sent prehearing questionnaires to the \nparties  on  May  12,  2023.    Claimant  filed  a  timely  response  thereto  on  May  24, \n2023.    Respondents  followed  suit  on June  12,  2023,  representing  that  the  claim \n\nBILLINGSLEY – H203870 \n \n3 \n \nhad   been   controverted   in   its   entirety.    Informed   that   Claimant   was   still \nincarcerated  in  the  Craighead  County  Jail  and  would  be  there  until  October  5, \n2023,  making  it impractical  for  him  to  participate  in  a  prehearing  telephone \nconference  and  a  hearing,  I  informed  the  parties  on  June  22,  2023,  that  I  would \ncontinue  to  hold  the Motion  to  Dismiss in  abeyance  and  return  the  file  to  the \nCommission’s general files until November 2023. \n Respondents  renewed  their  motion  on  November  21,  2023,  emailing  my \noffice.    For  reasons  unknown,  this  did  not  result  in  the  file  getting  reassigned  to \nme  to  hear  the  motion.    In  the  meantime,  on  December  11,  2023,  Claimant \nnotified the Commission that his address had changed to 328 CR 390, Mountain \nHome, Arkansas 72635.  On January 10, 2024, Respondents again renewed their \nMotion to Dismiss.  In this instance, the Clerk of the Commission reassigned the \nfile  to  my  office  on  that  same  date.   My  office  wrote  Claimant  on  January  19, \n2024, requesting another response to the motion within 20 days.  The letter was \nsent  via  first-class  and  certified  mail  to  his  Mountain  Home  address.    Someone \nwith an illegible signature claimed the certified letter on February 1, 2024; and the \nfirst-class letter was not returned.  However, no response from him to the motion \nwas  forthcoming this  time.    On February  9,  2024,  a  hearing  on  the motion to \ndismiss was scheduled for March 15, 2024, at 1:00 p.m. at the Craighead County \nCourthouse in Jonesboro.   The  notice  was  sent  to  Claimant  via  first-class  and \n\nBILLINGSLEY – H203870 \n \n4 \n \ncertified  mail to  the  same  address as  before.   In  this  instance, both  items  were \nreturned to the Commission with the notation: \nRETURN TO SENDER \nNO MAIL RECEPTACLE \nUNABLE TO FORWARD \n \n The  hearing  on  the Motion  to Dismiss  proceeded  as  scheduled  on March \n15,  2024.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared through counsel and argued for dismissal under AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  this claim for  initial  benefits is \nhereby dismissed without prejudice under AWCC R. 099.13. \n \n\nBILLINGSLEY – H203870 \n \n5 \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the March 15, 2024, hearing to argue against \nits dismissal) since the filing of his prehearing questionnaire response on May 24, \n2023.  Thus, the evidence preponderates that dismissal is warranted under Rule \n13. \n\nBILLINGSLEY – H203870 \n \n6 \n \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8692,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H203870 RANDAL L. BILLINGSLEY, EMPLOYEE CLAIMANT CORALEE’S MEMPHIS-STYLE CHICKEN, EMPLOYER RESPONDENT SECURITY NATL. INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 18, 2024 Hearing before Administrative Law Judge O. Milton Fine II on March 15, 2024, in Jone...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:56:34.813Z"},{"id":"alj-H207039-2024-03-15","awccNumber":"H207039","decisionDate":"2024-03-15","decisionYear":2024,"opinionType":"alj","claimantName":"Billy Wright","employerName":"Reynolds Consumer Products","title":"WRIGHT VS. REYNOLDS CONSUMER PRODUCTS AWCC# H207039 MARCH 15, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WRIGHT_BILLY_H207039_20240315.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WRIGHT_BILLY_H207039_20240315.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION  \n \n CLAIM NO. H207039  \n  \n \nBILLY WRIGHT,  \nEMPLOYEE                                                                                                                CLAIMANT   \n \n                                                                                                           \nREYNOLDS CONSUMER PRODUCTS,  \nEMPLOYER                                                                                                            RESPONDENT \n \nSEDGWICK CLAIMS MGMT. SERVICES, INC., \nCARRIER/THIRD PARTY ADMINISTRATOR                                                    RESPONDENT                                                                                            \n  \n \nOPINION FILED MARCH 15, 2024    \n  \n \nA hearing was held before Administrative Law Judge Chandra L. Black, Pulaski County, Little \nRock, Arkansas.  \n  \nClaimant represented by the Honorable Aaron L. Martin, Attorney at Law, Fayetteville, Arkansas.     \n  \nRespondents represented by the Honorable Michael E. Ryburn, Attorney at Law, Little Rock, \nArkansas.  \n   \n                                                 STATEMENT OF THE CASE  \n  \nA hearing was held in the above-styled claim on October 24, 2023, in Little Rock, Arkansas.  \nA prehearing telephone conference was held in this matter on August 30, 2023.  A prehearing order \nwas entered on that same day.  This prehearing order set forth the stipulations proposed by the \nparties, their contentions, and the issues to be litigated.  \n                  STIPULATIONS \nThe parties submitted the following stipulations, either pursuant to the prehearing order, or \nat the start of the hearing.  I hereby accepted the following stipulations as fact:  \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n \n\nWRIGHT – H207039  \n  \n  \n2  \n  \n2. That the employee-employer-carrier relationship existed at all relevant times including \non or about May 20, 2022, when the Claimant allegedly sustained a compensable injury \nto his lower back. \n \n3. The Claimant is entitled to the maximum weekly compensation rates for his alleged \n2020 low back injury if found to be compensable.  His weekly rate for temporary total \ndisability (TTD) benefits is $790.00; and his rate for permanent partial disability (PPD) \ncompensation is $593.00. \n \n4. The Respondents have controverted this claim in its entirety. \n \n5. All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nAct.  \n     \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing were as follows:  \n1. Whether the Claimant sustained a compensable low back injury on May 20, 2022.  \n  \n2. Whether the Claimant is entitled to reasonable and necessary medical benefits for his \nback condition.  \nContentions \n \n  The respective contentions of the parties are as follows:       \n  \nClaimant:  \n  \n  The Claimant contends that he sustained a compensable injury to his lower back on May \n20, 2022.  The Claimant further contends that he is currently entitled to medical treatment for his \nback injury and reserves his rights to all additional benefits.     \nRespondents:  \n  \nRespondents will assert the following defenses: The Claimant has no objective medical  \n \nfindings of an injury due to the May 20, 2020, incident.  Also, his lower back is a pre-existing  \n \ncondition.  The MRI taken before the accident is the same as the MRI taken after the accident.    \n   \n \n\nWRIGHT – H207039  \n  \n  \n3  \n  \n                     FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear the testimony of the witness and observe his demeanor, I hereby make the following findings \nof fact and conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.      The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n          \nclaim. \n \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.      The Claimant failed to establish by medical evidence supported by objective  \n \nfindings that he sustained a compensable injury to his low back on May 20, \n \n 2022, while performing his employment duties for the respondent-employer. \n            \n          4.          The remaining issue pertaining to reasonable and necessary medical treatment has \n    \n                        been rendered moot and not addressed herein this opinion. \n            \n \nSummary of Evidence \nMr. Billy B. Wright (referred to herein as the “Claimant”), was the only witness to testify \nduring the hearing.  \n            The record consists of the October 24, 2023 hearing transcript and the following exhibits: \nSpecifically, Commission’s Exhibit 1 comprises the Commission’s Prehearing Order filed on \nAugust 30, 2023 and the parties’ responsive filings; Claimant’s Medical Exhibit consisting of \nseventy pages was marked Claimant’s Exhibit 1; and Respondents’ Medical Exhibit includes \neleven numbered pages and it has been marked as Respondents’ Exhibit 1. \n\nWRIGHT – H207039  \n  \n  \n4  \n  \n                 Testimony  \n   As of the date of the hearing, the Claimant continued to work for Reynolds Consumer \nProducts, in Malvern.  He has worked for the Respondents for eighteen years.  His current position \nas of late entails employment duties as a roll grinder.  The Claimant testified that he has a lot of \ndifferent job duties, but his main job function is to bring in rolls and operate a machine lathe.  \nAccording to the Claimant, they grind and turn rolls in his department.  Specifically, the Claimant \nexplained: \n   Q Okay.  When you say roll, what do you mean? \n   A I mean a castor roll is probably about eight, nine, ten feet long.  It’s a big shell.  It’s \n36 inches in diameter, and we have to bring those in and take the old metal off after they run ‘em \nout in the plant, and we put a new finish on ‘em and send ‘em back out  - - \n   Q Okay. \n   A  -- to make the product with them.     \n   According to the Claimant he has worked as a roll grinder for sixteen years.  The Claimant \nagreed that he sustained a back injury on May 20, 2022, while picking up a 0-ring plate.  Per the \nClaimant, when he picked it up, he felt his back get stiff, and a pain went down his leg.  He testified \nthat an O-ring is a giant piece of metal, and the entire roll weighs approximately 30,000 pounds.  \nAccording to the Claimant, the rolls are about 36 inches in diameter.  He testified that the roll bolts \non, and it slides over a neck into the roll, and it holds the O-ring in place, which is a piece of rubber.   \nThe Claimant provided the following description of the O-ring: \n   Q Okay.  Describe that for us. \n   A Okay.  It’s probably four or five inches wide around.  It’s – it’s round.  It’s got \nprobably 50 bolt holes on – in it that holds the – which bolts to the caster roll, which holds the O- \nring in place.  It weighs about 140 pounds.         \n\nWRIGHT – H207039  \n  \n  \n5  \n  \n   Q Okay.  And you testified that you were lifting this at the time?  \n   A Yes.  Me and – me and another guy, there were two of us doin’ this.  \n   According to the Claimant, normally they would use a crane to pick this plate up because \nit is very heavy.  He testified that management had them trying something completely new this \nday, they wanted them to put a gasket on the roll.  The Claimant stated that they could not place \nthe gasket on it, so they had to pick it up by hand, and that is when he got hurt. \n   Regarding his symptoms, the Claimant essentially testified that he had an immediate onset \nof symptoms that included tightness in his back and pain going down into his left leg.  He \nconfirmed that he stayed at work until the end of his shift, but he did not continue to work.  The \nClaimant testified that he went and sat in the office of the roll shop department for the remainder \nof the day.  He further testified that his coworker and another guy finished the job that they had \nstarted.   \n   According to the Claimant, he reported his injury within the first hour that it happened.  \nThe Claimant testified that he reported his injury to his supervisor, Iteima Allen.  Per the Claimant, \nhe told his supervisor that he hurt his back picking up the 0-ring plate.  The Claimant also testified \nthat he told Mr. Allen about the pain he felt going down into his left leg. \n   The Claimant first sought medical treatment for his back from CHI St. Vincent.  They \nreferred the Claimant for an MRI and neurosurgical consultation with Dr. Shahim.  He testified \nthat Dr. Shahim ordered some medications, physical therapy, and injections for his back pain and \nrelated symptoms.  The Claimant denied that he got any benefit from either the medications, \nphysical therapy sessions, or the injections.  He confirmed that he must have surgery for his \nsymptoms because they are getting worse, and he must have this fixed. \n   Specifically, the Claimant testified that he currently has the following symptoms associated \nwith his May 20, 2022, work-related accident: \n\nWRIGHT – H207039  \n  \n  \n6  \n  \nQ What are your symptoms? \n \nA. Stiffness in the back.  I have pain from my lower back, I’d call it right above my \nhip, and it goes down into my leg, my hamstring, into my knee, into the calf area of my leg, into \nmy toes.  I have a constant pain - -I have pain all the time, but a lot of the times I’m having sharp, \nshooting pains.  I’m having tingling, pins and needles sensations in my feet and toes.                    \nThe Claimant denied having any symptoms in his right leg.  He agreed that he currently he   \nhas weakness in his leg, and sometimes when he is walking, he drags his leg because he is not able \nto pick it up all the time.  According to the Claimant, he must be careful because he drags his left \nleg, and this causes him to stumble.  The Claimant confirmed that he does not have any work \nrestrictions.  However, the Claimant agreed that his symptoms affect his ability to do his job.  \nSpecifically, the Claimant explained: “How I do my job is that I -- I take it real easy, real slow, \nvery careful.”  The  Claimant confirmed that he told Dr.  Shahim  that  if  he  gave  him work \nrestrictions, they would not allow him to return to work at Reynolds.   \nHe acknowledged that his symptoms also affect his daily activities outside of work.  The \nClaimant has problems with performing his duties as a deacon at his church when serving the \nLord’s Supper.  He must be careful so that he does not trip and fall.  The Claimant stated that he \nhas problems at home when he needs to pick up something heavy.  As a result, his son helps him \nto lift heavy objects and does the weed eating for him.  The Claimant stated that his son also helps \nhim with the mowing of his lawn.  He testified that he has not been able to do any gardening work \nsince his injury happened because it is too hard on his back.   \nRegarding his prior injury to his lower back in 2011 or 2012, the Claimant admitted he \ninjured his back at work taking a water jacket off.  He testified that he had to pry the bar off, and \nit slipped off and fell on the ground and hurt his back.   The Claimant testified that from that injury, \n\nWRIGHT – H207039  \n  \n  \n7  \n  \nhe had symptoms of pain in his back, and left leg down to his knee.  However, the Claimant denied \nthat his pain ever went below his knee, or into his feet.  The Claimant verified that he underwent \nsurgery for his prior 2012 back injury.  He confirmed that he received significant relief from the \nsurgery after a period of recovery time of about a year.  The Claimant testified that this prior \nsurgery resolved all his back problems, and he did not have any more pain or stiffness in his back.  \nHe confirmed that he returned to work after he recovered from his surgery in 2011.  The Claimant \ndid not recall whether he had any physical restrictions or limitations when he returned to work on \nfull duty.   \nThe Claimant was shown a copy of the medical records from Respondents’ Exhibit 1.  This \nexhibit includes an MRI from June of last year (2023), but before that the records go through until \nabout November of 2012.  He maintained that he did not see any doctors for his back from \nNovember of 2012 until his accident on May 20, 2022.  The Claimant denied having any problems \nfor which he did not see a doctor during that time limit.      \nUnder further questioning, the Claimant was asked if he believes that the accident on May \n20, 2022, is the cause of his current symptoms and need for surgery.  He replied, “Definitely, yes.” \nThe Claimant specifically maintained that he has never experienced these symptoms before.  He \nfurther maintained that he never had a similar prior problem with his leg.  The Claimant testified \nthat previously his pain stopped at the knee.  He went on to clarify that what is going on now is \nnumbness and tingling in his knee, calf, and feet. \nOn cross-examination, the Claimant testified that he does not recall if his prior surgery \noccurred in 2011 or 2012.  He confirmed that he has had two previous back surgeries.  One of his \nsurgeries was performed by Dr. Schlesinger and his second surgery was performed by Dr. Mason.  \nHe confirmed that he had back surgery years ago by Dr. Mason because he was having problems \n\nWRIGHT – H207039  \n  \n  \n8  \n  \nwith his back.  The Claimant verified that his surgery by Dr. Mason did not involve a work-related \ninjury.  According to the Claimant, Dr. Schlesinger performed his second surgery. \nThe  Respondents’  attorney  presented  the  Claimant  with  a  report  authored  by  Dr. \nSchlesinger, which is Respondents’ Exhibit at page 4.  The Claimant did not recall having problems \nafter his second surgery.  Although an MRI was ordered of the Claimant’s back following his \nsurgery, the Claimant continued to maintain he did not recall having problems after surgery.  \nDr. Mason\n1\n  reviewed the MRI and said that there was nothing he could do to help the \nClaimant from a surgical standpoint.  As a result, Dr. Schlesinger released the Claimant from \nsurgical care since there was nothing he  could do for the Claimant in terms of a  rating or \nlimitations.   The Claimant admitted that he testified earlier that he got better after back surgery \nand was fine between 2012 and 2022.  \nThe following exchange took place with the Respondents’ attorney and the Claimant:  \nQ But you had been to Dr. Schlesinger just following the surgery to see if something \nelse could be done? \nA I don’t remember that. \nQ Okay.  And then that – that MRI from 2012 that he relied on showed that you had \na post-surgical change at L4-5, disc displacement, and a small annular tear at L5-S1 level.  Is that \n– which of those sites are the site of your surgery?  Do you recall? \n A Oh, I don’t even know what any of that means. \n  Q Okay. \nA I don’t know. \nThe Claimant was questioned about the report on page 10 of the Respondents’ exhibit. \n \n1\n  Although the transcript reads Dr. Mason, this is a clerical error.  Instead, this should read Dr. Schlesinger.  \n\nWRIGHT – H207039  \n  \n  \n9  \n  \nHowever, the Claimant did not recall the radiologist having opined that the MRI in 2022 did not \nreveal an acute fracture and that only degenerative changes were revealed.  The Claimant admitted \nthat he discussed the findings of the MRI with Dr. Shahim.  He maintained that he did not \nunderstand any of what all that stuff means.  The Claimant confirmed that he went to the company \ndoctor, Dr. Larey.  Although Dr. Larey referred the Claimant to Dr. Zachary Mason, he did not see \nhim.  The Claimant was unsure of how he got to see Dr. Shahim.   \n  Under further questioning, the Claimant admitted that his need for surgery is because he is \nhaving problems with the same leg, except the now the problem goes all the way down to his toes.  \nThe Claimant stated that he was not sure if back in 2012 after his surgery, he had the same thing \ngoing on with the same two levels (L4-5 and L5-S1) that he has involved now.  The Claimant \nmaintained that he was not sure of what Dr. Shahim meant when he stated in his medical report \nthe Claimant the radiologist misread the MRI, or his problems are degenerative in nature and \nnothing acute.  However, Dr. Shahim went on to opine that if the MRI was misread by the \nradiologist, then the Claimant already had L5-S1 issues going as reflected in the previous MRI’s. \n The Claimant denied he understood what Dr. Shahim meant when he said the Claimant most likely \nhas a new facet injury.  Dr. Shahim also stated, “He has either a combination of facet cysts from a \nfacet injury and subligamentous disc herniation.”    \nThe Claimant admitted that he has worked the whole time since May 20, 2022.  The \nClaimant admitted that he has not missed any time from work since his alleged back injury.   He \ndid not recall asking Dr. Shahim to tell Reynolds he had no restrictions and could work full duty.  \nThe Claimant admitted that he did tell Dr. Shahim he probably would not be allowed to return to \nwork if he had restrictions.  However, the Claimant denied that his employment duties are heavy \nmanual labor all the time.   \n\nWRIGHT – H207039  \n  \n  \n10  \n  \n  He confirmed that the Reynolds plants that he works at do not make aluminum foil.  The \nClaimant testified that they make “cash metal,” which is turned into aluminum foil somewhere \nelse.  As of the date of the hearing, the Claimant continued to work his scheduled shift at Reynolds.  \nHe confirmed that he plans to work up until his surgery.  The Claimant again denied that his current \nsymptoms are the same as those he experienced previously. \n        Medical Records  \n  A review of the medical records demonstrates that on September 28, 2011, the Claimant \nunderwent an MRI of the lumbar spine without contrast due to lower back pain/lumbar strain, \nauthorizing provider was Dr. Mark Larey.  The reviewing radiologist, Dr. Stephen Penor, rendered \nthe following Result Impression: \n1. There is central disc protrusion with a larger left paracentral disc protrusion at L4-5.  \nThere is moderate to severe left paracentral spinal canal stenosis with mass effect on \nthe left L-5 and sacral nerve roots. \n      2.    There is mild bilateral neural foraminal narrowing at L4-5. \n     3.    There has been a laminectomy at L4-5. \n     4.    Central annular tear at L5-S1.  There is no stenosis that this level. \n \nOn October 4, 2011, the Claimant underwent a lumbar MRI due to low back pain since \nAugust 1, 2011.  The patient has a history of low back surgery in 2003 with pain in the lower left \nextremity.  Dr. Andrew Finkbeiner rendered the following Conclusion: \nNo  enhancing 8mm  left  paracentral  disc  protrusion  at  the  L4-5  level  results  in  mild \ncompression of the descending left L5 nerve.  There is a left-sided hemilaminectomy defect \nwith enhancing granulation tissue in the left lateral recess.  Small soft central protrusion \nwith associated enhancing annular tear at the L5-S1 level. \n \nDr. Scott Schlesinger referred the Claimant for an MRI of the lumbar spine, which was \nperformed on April 2, 2012.  Specifically, the Claimant underwent an MRI of his low back without \ncontrast due to ongoing complaints of low back pain associated with lower left extremity pain with \n\nWRIGHT – H207039  \n  \n  \n11  \n  \na history of low back surgery in October 2011.  Direct comparison was made with preop MRI of \nthe lumbar spine from October 4, 2011.  Accordingly, the radiologist opined, in relevant part: \nFINDINGS: L4-5:  There  is  a  shallow  disc  displacement  most  pronounced  in  the \nbioforaminal positions with enhancement along the left paracentral/foraminal portion of \nthe  disc  with  an  adjacent  left-sided  hemilaminectomy  defect.   There  is  enhancing \ngranulation tissue in the left lateral recess surrounding the descending left L5 nerve.  In \naddition, there is facet hypertrophy at this level contributing to mild to moderate bilateral \nexiting neural foraminal stenosis.  There is metallic artifact seen with the surgical site best \nnoted on image #13 of series #7.   \n \nL5-S1: There is enhancement along the posterior central margin of the disc at this level \npossible representing annular tears along with shallow disc displacement contributes to \nmild to moderate bilateral exiting neural foraminal stenosis with abutment of bilateral \nexiting L5 nerves.       \n  \nCONCLUSIONS: There is interval left-sided hemilaminectomy defect without evidence \nof residual or recurrent soft herniation or protrusion.  Enhancing granulation tissue in the \nleft lateral recess surrounds the descending left the L4-5 nerve.  There also remains shallow \ndisc  displacement  and  associated  facet  hypertrophy contributing  to  mild  to  moderate \nbilateral exiting neural foraminal stenosis and associated facet atrophy contributing to mild \nto  moderate  bilateral  exiting  neural  foraminal  stenosis  without  definite  nerve root \ncompression.  Please see report for level-by-level description. \n \nOn November 13, 2012, Dr. Scott Schlesinger, a neurosurgeon, saw the Claimant in clinic  \nfor  a  consultative  neurosurgical  work-up.   At  that  time,  by  written account Dr.  Schlesinger \nprovided an updated report with details of a development of a management and treatment plan for \nthe Claimant’s continual complaints of chronic lower back pain that radiated down his left leg, to \nthe foot associated with numbness and tingling. \n  History of Present Illness \n This 44-year-old male presents with lower back pain that radiates down the left leg to the \nfoot with numbness and tingling.  He has a history of lumbar surgery done about ten years \nago by Dr. Mason and an additional lumbar surgery done by me in 2011.  He also underwent \na series of post-operative epidural steroid injections in April and May of 2012 with no \nrelief.  He is now here in follow up with a new MRI of the lumbar spine.   \n \n                      *** \n   \n \n\nWRIGHT – H207039  \n  \n  \n12  \n  \nNeurological Surgeries  \n  Lumbar Surgery X 2: \n            L4-5 Lumbar decompression and discectomy done in 2002 by Dr. Zachary Mason. \n  L4-5 Redo lumbar discectomy done on October 11, 2011, by me. \n \n  *** \n \n   \nMedical Decision Making  \n   \n Interpretation of Data: Mr. Wright’s MRI scan of the lumbar shows postoperative changes \nand degenerative changes only. \n \nA decision was made to made to request the medical records pertinent for the current \nproblem.  I have reviewed these records and have incorporated this information into the \nmedical decision making.  \n \nDifferential Diagnosis  \n \nLow Back Pain \nLow back pain has many etiologies.  The back pain may come from facet joint arthritis, \ndegeneration  of  discs,  musculoskeletal  symptoms,  rheumatologic  disorders, \nmusculoskeletal  symptoms,  rheumatologic  disorders,  herniated  discs,  spinal  stenosis, \nfracture, spinal tumors, etc. \n \nDiagnosis:     \nThe patient’s diagnosis is: \nLow Back Pain. \n \nPlan: \nThere is nothing further I can do for him neurosurgical.  I will release him from further \nneurosurgical care.  The only thing I might suggest to him is attempting medication \nmanagement with anti-inflammatory agents such as Celebrex.  There is nothing further to \ngive him in terms of limitation or disability.   \n \nThank you once again for allowing me to provide this neurosurgery consultation for this \npatient. \n \nThe Claimant underwent an MRI of his lumbar spine on November 13, 2012, without \ncontrast, pursuant to recommendation by Dr. Schlesinger.  Specifically, Dr. Andrew A. Finkbeiner \nrendered the following Conclusion: \nNo significant interval changes from the prior examination of April 2, 2012.  Postsurgical \nchanges again were noted at the L4-5 level with a left-sided hemilaminectomy/facetectomy \n\nWRIGHT – H207039  \n  \n  \n13  \n  \ndefect with multiple small metallic artifacts seen with the surgical site.  There is enhancing \ngranulation tissue in the posterior central and left paracentral portion of disc the as well as \nthe  left  lateral  recess  surrounding  the  descending  the  left  L5  nerve.    Shallow  disc \ndisplacement most pronounced in the central position with suggestion of a small posterior \nannular tear at the L5-S1 level. \n \nOn June 2, 2022, the Claimant sought medical treatment for his back condition from CHI  \nSt. Vincent’s Corporate Health, in Hot Springs.  At that time, the Claimant underwent evaluation \nby   Dr. Mark Eugene Larey.  Per these notes, the Claimant began having problems with his back \non June 1, 2022.   Nevertheless, the Claimant reported to Dr. Larey that he injured his back while \nhandling a ring plate with a coworker.  He also reported that he felt a twinge in his left lower back \narea.  The Claimant continued to work and began to have pain/tingling go down the back of his \nleg into the lateral side of his left foot.  Dr. Larey stated that the medical cause of the Claimant’s \nproblem was related to his work activities.  He assessed the Claimant with “Lumbago with sciatica, \nleft side (M54.42).”   XR LUMBAR SPINE 2 or 3 VW taken of the Claimant’s back were \ninterpreted by Dr. Larey as “Normal alignment.  Moderate disc space narrowing L3-4 and marked \nnarrowing of L4-5 with associated facet arthropathy.”       \n  An MRI of the Claimant’s lumbar spine without contrast was performed on June 21, 2022 \n \ndue  to  lumbago  with  sciatica,  left  sided.   Per  this  diagnostic  testing, Dr.  Sorayo  Ong,  the \nradiologist, rendered in applicable part, the following: \n  Findings:  \nL4-5 severe disc bulge, asymmetric towards the right, bilateral arthropathy cause moderate \nneural canal stenosis bilaterally.   \n \nL5-S1, mild disc bulge slightly asymmetric towards the left causes mild right and moderate \nleft neuroforaminal stenoses.  There are lobulated annual stenoses.  There are lobulated \nannular fissures also seen in the posterior midline portion of the disc. \n  \nImpression:  \n1. No acute fracture. \n\nWRIGHT – H207039  \n  \n  \n14  \n  \n2. Degenerative changes.  The worst levels are L4-5 and L5-S1, where there are bilateral \nneuroforaminal stenosis as noted above.  \n \nThe Claimant underwent evaluation by Dr. Reza Shahim on July 28, 2022, due to a chief \ncomplaint of chronic low back pain.  Dr. Shahim opined: “The Claimant has a combination of facet \ninjury and degenerative disc disease.  I think he mostly has a new facet injury of left L4-5 annular \ntear at L5-S1 this is a work-related injury with radicular pain on the left side.  At that time, Dr. \nShahim stated that he would put the Claimant through a course of physical therapy treatment and \nspinal injections.   \nOn September 21, 2022, Dr. Shahim recommended that the Claimant undergo surgical \nintervention  since  physical  therapy and  injection did  not  provide him  with any significant \nimprovement of his back pain and related symptoms.  At that time, Dr. Shahim noted that he \nreviewed the Claimant’s MRI, and he stated that he believes the radiologist stated that the Claimant \nhas either a combination of a facet cyst from a facet injury and a subligamentous disc herniation \nat left L4-5 causing nerve root compression, which failed conservative management.  Therefore, \nDr. Shahim recommended surgical treatment including a redo discectomy or he may require a \nfusion.  Dr. Shahim assessed the Claimant with lumbar radiculopathy which was located on the \nleft L4 left posterior dermatome.  \n  The Claimant returned to Dr. Shahim for a follow-up evaluation on October 12, 2022, for \nreevaluation of his lumbar spine pain.  He recommended surgery for the Claimant since he failed \nconservative treatment.  Per these clinical notes, Dr. Shahim stated that the Claimant’s accident \nwas the cause of his new onset of symptoms, which entailed back, hip, and left leg pain.   At that \ntime, Dr. Shahim stated that the radiologist misread the MRI.  Specifically, Dr. Shahim opined that \nthe Claimant does have a combination of facet hypertrophy disc herniation left L4-5 causing severe \nnerve root compression on the left side contributing to his symptoms.  Dr. Shahim further stated \n\nWRIGHT – H207039  \n  \n  \n15  \n  \nthat he would submit a request to workers’ compensation for authorization of a left L45 redo \ndiscectomy.  The Claimant was scheduled for a follow-up visit with Dr. Shahim after he finished \nhis physical therapy treatment.  He diagnosed the Claimant “Herniated disc, lumbar.  Intervertebral \ndisc disorders with myelopathy, lumbar region (M51.06) Pain intensity was a 7.0 - 7/10.” \n  On January 12, 2023, Dr. Shahim saw the Claimant for follow-up evaluation of his chronic \nback pain and related symptoms.  Dr. Shahim noted that he reviewed the Claimant’s previous MRI \nwith him in detail that shows “spondylosis with stenosis L4-L5.”  Per this medical report, the \nClaimant reported to Dr. Shahim that he was not having any symptoms prior to his work-related \naccident in May of last year.  Dr. Shahim opined in relevant part: \nHe is having radicular pain in the left leg associated with what appears to be either a \nrecurrent disc herniation or a facet cyst associated with inflammation of the joint at L4-5 \non the left side this not read well by radiologist.  I do believe that his injury is directly \nrelated to the workers’ compensation accident are directly related too the pinched nerve at \nleft L4-5 he is already fell more than six months of conservative management including \ninjections which were not effective medical activity modification.  I do not believe he had \na pre-existing condition so I would recommend at this point for the insurance to approve \nredo discectomy left L4-5 if they do not agree with my opinion they can send him for a \nsecond opinion. \n \n  On April 3, 2023, Dr. Shahim authored an amendment to his March 13, 2023, clinic notes.  \nPer this amendment, Dr. Shahim stated that he was releasing the Claimant from care because they \nhad received multiple denial by workers’ comp for his treatments due to the Claimant’s condition \nbeing pre-existing.      \n                        ADJUDICATION  \nCompensability  \n  The Claimant has asserted that he sustained a compensable accidental work-related back \ninjury while performing his employment duties for his employer, Reynolds Consumer Products, \non May 20, 2022.   \n\nWRIGHT – H207039  \n  \n  \n16  \n  \nSpecifically, the Claimant contends that he sustained a back injury in the course and scope \nof his employment at Reynolds while working with a coworker during a lifting incident involving \nan O-ring plate.   \nThe Respondents contend that the Claimant has no objective medical findings of an injury \ndue to the May 20, 2022, incident because his low back condition is a pre-existing condition.  They \nfurther contend that the MRI taken before the accident is the same as the MRI taken after the \naccident.   \nThe burden of proving a specific incident compensable injury is the employee’s and must \nbe proved by a preponderance of the evidence.  Ark. Code Ann. § 11-9-102(4)(E)(i).  If the \nClaimant  fails  to  establish  by  a  preponderance  of the  evidence  any  of  the  requirements  for \nestablishing the compensability of a claim, compensation must be denied.  Mikel v. Engineered \nSpecialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).   \n   \"Compensable injury\" means an accidental injury causing physical harm to the body, \narising out of and in the course of employment and which requires medical services or results in \ndisability or death.  Ark. Code Ann. § 11-9-102(4)(A)(i).  A compensable injury must be established \nby medical evidence supported by objective findings.  Ark. Code Ann. § 11-9-102(4)(D) (Supp. \n2019).  “Objective findings” are those findings that cannot come under the voluntary control of the \npatient.  Ark. Code Ann. § 11-9-102(16)(A)(i).  Complaints of pain are not considered objective \nmedical findings.  Ark. Code Ann. § 11-9-102(16)(A)(ii)(a).    \n   After reviewing the evidence in this case impartially, without giving the benefit of the doubt \nto either party, I find that the Claimant failed to prove by a preponderance of the credible evidence \nthat he sustained a work-related back injury on May 20, 2022.  More specifically, I cannot find the \nexistence of a causal connection between the Claimant’s May 20, 2022, employment related \n\nWRIGHT – H207039  \n  \n  \n17  \n  \nincident/activities, and the medically documented objective findings for his alleged back injury as \ndemonstrated on his June 2022 lumbar MRI.  \n   In the case at bar, the Claimant worked for Reynolds Consumer Products for over eighteen  \nyears.  His most recent employment duties entailed those of a roll grinder.  The claimant has an \nextremely extensive history of significant back problems dating back to 2002.  The Claimant has \nundergone two prior back surgeries at L4-5.  Beginning in 2002, the Claimant underwent lumbar \ndecompression and discectomy at L4-5 by Dr. Zachary Mason.  His testimony demonstrates that \nafter a lengthy recovery time he returned to work with no physical limitations or restrictions.  \nAccording to the Claimant, his back did well until 2011.  At that time, the Claimant sustained a \nsecond injury at the same level.  In October 2011, Dr. Schlesinger performed back surgery at the \nsame level.  The medical records show that Dr. Schlesinger performed “a redo lumbar discectomy \nat L4-5.” \n   Although the Claimant initially maintained he did well after his second back surgery, he \nadmitted that he obtained an MRI of his lumbar spine after his 2011 surgery due to continued \ncomplaints of back pain and related symptoms.  On direct examination, the Claimant further \nmaintained that he complained of back pain and left leg symptoms, but his leg symptoms stopped \nat the knee.  However, on cross-examination, after being presented with a medical exhibit by the \nRespondents’ attorney that showed he previously complained of pain all the way down to his left \nfoot, the Claimant admitted that his prior symptoms extended into his left foot with associated \nnumbness and tingling.  In fact, the Claimant’s back symptoms and leg problems were severe \nenough for him to seek a lumbar MRI in 2012. Although I am convinced that the Claimant is a \ndiligent and valuable employee of Reynolds, I found his testimony to be less than forthcoming \nregarding his prior identical symptoms.    \n\nWRIGHT – H207039  \n  \n  \n18  \n  \n  Nevertheless, I am persuaded that there was a work-related incident on May 20, 2020, \ninvolving the Claimant’s back as he attempted to lift a 140 pound 0-ring with a  coworker.  \nHowever, I am not convinced that the Claimant has met his burden of proof of a compensable back  \ninjury resulting from the May 20 incident by objective medical evidence to establish the existence \nof a work-related injury.  Our case law is clear on this issue.  A compensable injury must be \nestablished by medical evidence supported by objective findings. In that regard, although the \nClaimant complained of pain after his work incident and now attributes his back condition and \nneed for surgery to the May 20 incident, there are no objective findings in support of that \nconclusion- only the maintain sequence of events and the alleged new symptoms.   \nHere, the medical evidence presented by the Claimant from his lumbar MRI of June 2022  \ncontains only pre-existing degenerative changes, in the form of the following:  \nFindings:  \nL4-5 severe disc bulge, asymmetric towards the right, bilateral arthropathy cause moderate \nneural canal stenosis bilaterally.   \n \nL5-S1, mild disc bulge slightly asymmetric towards the left causes mild right and moderate \nleft neuroforaminal stenoses.  There are lobulated annual stenoses.  There are also lobulated \nannular fissures seen in the posterior midline portion of the disc. \n \nImpression: \n3. No acute fracture. \n4. Degenerative changes.  The worst levels are L4-5 and L5-S1, where there are bilateral \nneuroforaminal stenosis as noted above.  \n \nIt is well-established in workers’ compensation law that a pre-existing condition may be \naggravated by a work-related and be found compensable as a new injury.  However, I do not find \nthat to be the case here.  I reached this conclusion based on the following probative evidence. \n  Here, the Claimant’s complaints and related symptoms are identical to those he complained \nof in 2012, which included back pain, and pain and tingling and numbness down into his left leg.  \nThe Claimant’s current complaints of back pain and related symptoms are at the same level that \n\nWRIGHT – H207039  \n  \n  \n19  \n  \nresulted in his prior two back surgeries.  There are no new objective findings of an injury to his \nback.  In fact, the findings on the 2012 lumbar MRI are identical to Claimant’s most recent lumbar \nMRI in 2022, which was performed after this May 20 work-related incident.  Most significantly, \nall of the objective medical findings on the 2022 MRI are degenerative in nature and pre-existed \nhis work incident.        \nUnder  these  circumstances, I  am  convinced it  would  require  sheer  conjecture  and \nspeculation to attribute the Claimant’s back condition to his work activities with this respondent-\nemployer/Reynolds on May 20, 2022.  Conjecture and speculation, however plausible, cannot \nsupply the place of proof.  Dena Construction Co. v. Herndon, 264 Ark. 791, 575 S.W. 2d 155 \n(1979).  Therefore, I must find that the Claimant failed to establish by medical evidence supported \nby objective medical findings that he sustained a compensable back injury in the course and scope \nof his employment within the meaning of the Arkansas Workers’ Compensation Act.  \nI realize that Dr. Shahim opined that the Claimant’s current back complaints are caused by \nhis work-related incident of May 20, 2022.  I have attached minimal weight to this expert opinion \nbecause it was based on an incomplete/inaccurate history of no continual back symptoms by the \nClaimant, namely that his 2011 surgery resolved his problems.  It also appears that Dr. Shahim did \nnot  review  the  Claimant’s  prior  lumbar  MRI  from  2012  and  because  both  MRIs  revealed \nessentially  the identical degenerative changes,  including  the  annular fissures.   Also, when \ncomparing the 2012 lumbar MRI to the lumbar MRI from 2022, I am unable to find the Claimant \nsustained new facet injury or that the radiologist misread the 2022 MRI, considering that the \nrelevant objective medical findings  (all of which are pre-existing degenerative changes) are \npresent on both diagnostic exams.  Most notably, the Claimant has continued working since his \n\nWRIGHT – H207039  \n  \n  \n20  \n  \nMay  20  work-related  incident  without  any  modification  of  his  work  duties  or  any  special \naccommodation being made by his employer.   \nAdditionally, for all of the same aforementioned reasons, minimal weight has been assigned \nto Dr. Larey’s expert opinion stating that the Claimant’s current back symptoms are related to his \nemployment duties on May 20, 2022, primarily because Dr. Larey was provided an inaccurate \nhistory of the Claimant’s  prior ongoing chronic back problems and complaints dating back to  \n2012, which existed at the time of his May 20, 2022 work-related incident.    \n      Having found that the Claimant did not sustain a compensable injury, the issue pertaining \nto medical benefits for this injury is rendered moot and therefore has not been addressed herein \nthis opinion.     \n                               ORDER   \n  \nIn accordance with the findings of fact and conclusions of law set forth above, this claim \nfor a back injury is hereby respectfully denied and dismissed in its entirety.  \nIT IS SO ORDERED.  \n                            _______________________________  \n              CHANDRA L. BLACK       \n           ADMINISTRATIVE LAW JUDGE","textLength":40035,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207039 BILLY WRIGHT, EMPLOYEE CLAIMANT REYNOLDS CONSUMER PRODUCTS, EMPLOYER RESPONDENT SEDGWICK CLAIMS MGMT. SERVICES, INC., CARRIER/THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MARCH 15, 2024 A hearing was held before Administrative Law Judge Chandr...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["back","neck","hip","knee","fracture","lumbar","strain","herniated"],"fetchedAt":"2026-05-19T22:56:32.678Z"},{"id":"alj-H305461-2024-03-14","awccNumber":"H305461","decisionDate":"2024-03-14","decisionYear":2024,"opinionType":"alj","claimantName":"Tommy Shelton","employerName":"City Of Booneville","title":"SHELTON VS. CITY OF BOONEVILLE AWCC# H305461 MARCH 14, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SHELTON_TOMMY_H305461_20240314.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHELTON_TOMMY_H305461_20240314.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H305461 \n \nTOMMY J. SHELTON, EMPLOYEE CLAIMANT \n \nCITY OF BOONEVILLE, EMPLOYER RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, CARRIER RESPONDENT \n \n \n OPINION FILED MARCH 14, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MARY K. EDWARDS, Attorney, North Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January 23, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on November 30, 2023, and a pre-hearing order was filed \non  that  same  date. A  copy  of  the  pre-hearing  order with  modifications has  been  marked  as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.    The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n \n           2.    The employee/employer/carrier relationship existed on August 14, 2023. \n \n           3.    The respondents have controverted the claim in its entirety.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1.  Whether claimant sustained a compensable injury on August 14, 2023. \n\nShelton-H305461 \n2 \n \n2. If compensable, the claimant’s average weekly wage. \n3. If compensable, whether claimant is entitled to temporary total disability benefits. \n4. If compensable, whether claimant is entitled to medical benefits. \n5. Attorney’s fees.  \nAll other issues are reserved by the parties. \nThe  claimant contends  that “On or about August 14, 2023, he  stepped  on  a  wire,  and  it \npunctured his shoe and left foot. This wound subsequently became infected and has resulted in the \nneed for medical treatment and has produced temporary total disability beginning on August 16, 2023, \nand continuing through a date yet to be determined. He further contends that his attorney is entitled \nto the statutory attorney’s fees on appropriate benefits.” \nThe respondents contend that “Claimant cannot prove by a preponderance of the evidence \nthat he sustained a compensable injury on August 14, 2023. Claimant cannot prove that his injury was \ncaused by a specific incident and was identifiable by time and place of occurrence.”  \n From a review of the entire record, including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted on \nNovember 30, 2023 and contained in a pre-hearing order filed that same date are hereby accepted as \nfact, as is the stipulation announced at the hearing of this matter. \n 2.    Claimant has met his burden of proof by a preponderance of evidence that he suffered a \ncompensable injury on August 16, 2023.  \n\nShelton-H305461 \n3 \n \n \n3.  Claimant is entitled to temporary total disability benefits beginning August 16, 2023, and \ncontinuing to a date to be determined. \n4. Claimant is entitled to reasonable and necessary medical benefits for his lower left extremity \ninjury. \nFACTUAL BACKGROUND \n           Before any testimony was taken, the parties stipulated that claimant’s average weekly wage was \n$680.80, which yields a temporary total disability rate of $454.00 per week.  \n          Claimant had failed to provide to respondent a copy of the records he intended to introduce as \nrequired  by  the  scheduling  order,  sending  only  the  index to  both  respondent  and  to  the  court. \nRespondent raised an objection to those records being admitted. After claimant’s counsel conferred \nwith his legal assistant, he advised that the email containing those records did not appear in the “sent” \nfolder at his office, and he did not know if it was human error or mechanical error, but the failure to \nprovide the records was an error on his part. Mr. Ellig advised that those records would be helpful in \ndeciding  the  case. Respondent’s  attorney  was  given  the  option  of continuing  the  hearing  or \nwithdrawing her objection. Ms. Edwards advised that she had seen the records in question and wanted \nto proceed with the hearing. The claimant’s records were then received without objection. I appreciate \nthe candor both attorneys showed to the court in addressing this matter.  \nHEARING TESTIMONY  \n \n Claimant  testified  that  in  August  2023, he  was  working  for  the City  of  Booneville  in  the \nSanitation Department. His job consists of operating an automated truck which picked up the trash \ncan and emptied it into the truck bed. He made two trips a week to the landfill approximately fifty \nmiles away from Booneville. When he was not operating the truck, he would work on maintenance \nfor it. Claimant said there was a trough on the truck that caught small items that fell into it and had to \n\nShelton-H305461 \n4 \n \n \nbe  cleaned  out  manually.  Claimant  testified  that the  debris was on  the  ground  because  there  was \nnowhere else to put it. It was necessary for him to walk across the ground where the material had been \ndumped. Over a five-year period, claimant said he found knives, nails, a saw blade, and all sorts of \nsmall stuff that would not compact. The compactor on the truck shoves everything to the front but \nthere  was a  gap  between the  compactor  and  the  truck  where  the materials fell  into  a  trough.  Over \ntime, after enough materials accumulated on the ground, it was removed using a backhoe. Claimant \nestimated  that  the  cleanup  of  the  ground  took  place  maybe  twice  a year.  Claimant  testified  that  he \nwore tennis shoes at work. \n Claimant has been diagnosed as a diabetic for around five to six years and could not feel the \nbottom of his left foot because of neuropathy. On August 16, 2023, claimant felt sick, and noticed on \nAugust 17, 2023, that his foot was infected. Claimant went to the doctor where the foot was x-rayed \nand a piece of wire was discovered in his foot. On August 19, 2023, claimant had an operation, and \nthe metal was removed. He remained in the hospital for two weeks treating the wound. After claimant \nwas discharged from the hospital, he continued to see his treating physician; after six weeks, claimant’s \nleft foot was amputated due to the infection. \n The claimant and his attorney had this exchange: \nQ. (By Mr. Ellig) How do you think you got that wire in your foot? \nA. I stepped on it at work. \n \nQ. And why do you think that? \nA. Because I didn’t go nowhere. I went home, I went to work, you know, and \nI parked the car on the carport, which is concrete. Now if it needed gas, I go \nget gas, but it is still all on concrete. If I stepped on that on concrete, it never \nwent, you know, in my foot like that so, you know, one hundred percent that \nit happened at work. \n \nQ. Were you around any other kind of trash or wires? \nA. No. No, not beside work. \n \nQ. Do you know exactly when it stuck in your foot? \n\nShelton-H305461 \n5 \n \n \nA. No, I don’t know for sure when it was, but  it  was – it  was  around  that \nAugust 17, sometime before then, but I could not tell you when. \n  \n Q. But the medical records show you gave history that the problem with your \n foot started about a week prior to that time when you went to the doctor on \n the seventeenth, you think that’s somewhere in the area? \n A. I think so.  \n \n On cross-examination, claimant said he typically worked alone, and no one saw him step on \nthat piece of metal at work. He admitted he did not know when or exactly where he stepped on the \npiece of metal. He said he did not feel the piece of metal go into his foot. \n The following exchange took place between respondent’s attorney and claimant: \nQ. (By Ms. Edwards) In fact, you do not know for certain that you stepped \non this piece of metal at work? \nA. It’s the only place that I could have- \n \nQ. I understand. \nA. -then. \n \nQ. I am going to need a yes or no from you. You do not know for certain \nyou stepped on this piece of metal at work? \nA. No. \n Claimant  testified  that  he  did not  see  the  specific  piece  of  metal  that  is  represented  by \nRespondent’s Non-Medical Exhibit page 3. Claimant conceded the first time he saw it was when the \ndoctor showed him a picture of it. Claimant agreed that he wears tennis shoes to places other than \nwork, such as the gas station, the post office, and from his house to get into the truck. \n Claimant related that he had neuropathy of his left foot and had been diagnosed with diabetes \nprior to this incident. As part of his diabetic care, claimant had regular foot examinations.  \n The following exchange then took place between respondent’s counsel and claimant: \nQ. (By Ms. Edwards) And we talked about shoes a little bit. They were tennis \nshoes,  but did you ever notice any wire in any of your shoes? \nA. No. \n \nQ. Did you ever notice any blood on the socks? \n\nShelton-H305461 \n6 \n \n \n A. No. \n \n Q. And you do your own laundry, right? \n A. Yes. \n \n Q.  And  we  talked  about  neuropathy  a  bit,  but  your  left  foot  could  bleed, \n correct? \n A. Yes. \n \n Q. You just didn’t see any blood there? \n A. Right. \n \n Claimant  agreed  that some  of the  medical records mentioned that  his  left  foot  had  been \nbleeding.  Claimant  admitted  that  in  2022,  he  had  an  infection  on  his  left  foot  that  was  treated  by \nwound debridement and then eventually two toe amputations. Claimant agreed that when he went to \nthe doctor in August 2023, he was unaware that he had stepped on the metal object, but he felt the \nsymptoms of infection, was feeling bad, and noticed an odor coming from his left foot.  \n On redirect-examination, claimant said he did not attribute any of his prior difficulties with \nhis left foot to his job. He said he was comfortable in his own mind that the most likely or probable \nplace that he stepped on the piece of wire was at work. He had not seen any other pieces of wire, \ntrash, debris of any kind around his premises or at the gas station or any other place. While claimant \ndid not see the particular piece of wire that he stepped on, he had seen other pieces of wire in the \ndebris he described earlier. \n Claimant’s supervisor, John Slinker, testified that part of claimant’s job was to wash out trash \nand debris from what he called a trough on the back of the truck. The trash goes on the ground and \nthen is to be picked up in a reasonable amount of time. The truck was washed out at the same place \neach day and material fell to the ground in that place. To perform his job, Mr. Slinker said claimant \nhad to walk through the trash that could have been on the ground for months. Mr. Slinker described \nthe material as anything small enough to fit through a quarter or half-inch gap in the compactor of \n\nShelton-H305461 \n7 \n \n \nthe truck, and that he had seen pieces of wire, nails, and the like in that material on the ground. \n On  cross-examination,  Mr.  Slinker  stated  he  did  not  see  the  injury  and  had  no  personal \nknowledge of when it had taken place. He said there was too much stuff to pick out a specific piece \nof trash. Mr. Slinker said that his only personal knowledge was that Mr. Shelton told him he stepped \non a piece of metal at work. \n Claimant’s sister, Judy Schultz, stated that she had not noticed any wire or other metallic \nmaterials laying around his house. She said that he did not go out much other than to the store, and \nthe post office, and things like that.  \n On cross-examination, Ms. Schultz conceded the only personal knowledge that she had about \nwhether claimant stepped on a piece of metal at work was what he told her. \n While Ms. Schultz’s testimony was largely unhelpful on the issues in this matter, I found all \nthe witnesses to be credible on the matters to which they testified.   \nREVIEW OF THE EXHIBITS \n \n The  extent  of  the  injury  in  this  case  is  not  in  dispute,  and  as  such,  a  detailed  review  of  the \nmedical exhibits is unnecessary. The records before August 2023 show that claimant suffered from \ndiabetes for years, and as he testified, two toes had been amputated on his left foot before the injury \nthat gave rise to this claim.  After the foreign object was removed, the treatment for the infection was \nunsuccessful, and claimant’s left foot was amputated.   \n The non-medical  exhibits  included respondent’s First Report  of  Injury,  which  includes  the \nnotation  that  claimant  was  “unsure  when/what  happened;  metal  in  foot.”    There  was  also  a \nphotograph of the piece of metal that was removed from claimant’s foot; it is laid beside a ruler and \nlooks to be about four inches long, although it is bent at nearly a 90-degree angle, almost in an “L” \nshape.  \n\nShelton-H305461 \n8 \n \n \nADJUDICATION \n \nIn order to prove a compensable injury as the result of a specific incident that is identifiable \nby time and place of occurrence, a claimant must establish by a preponderance of the evidence (1) an \ninjury arising out of and in the course of employment; (2) the injury caused internal or external harm \nto  the  body  which  required  medical services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence. Odd Jobs and More v. Reid, 2011 Ark. App. 450, \n384 S.W. 3d 630. The medical records provide objective findings that claimant had a problem with his \nfoot that required medical services to remedy, thus satisfying the second and third elements of proof \nas set out above.  \nClaimant was unsure of the precise date that the alleged injury occurred, but that is not fatal \nto a claim, Edens v. Superior Marble & Glass, 346 Ark. 487, 492, 58 S.W.3d 369, 373 (2001): \"Although \nthe  inability  of  the  claimant  to  identify  the  exact  date  of  an  injury  might  be  considered  by  the \nCommission  in weighing the  credibility  of  the  evidence,  the statute  does  not  require  that  the  exact \ndate be identified in order for the injury to be compensable.\" A person without neuropathy would \nhave felt the piece of metal go into his heel. However, claimant is not such a person; I decline to hold \nhim to an impossible standard in that regard.   \nThat  then  leaves the  question  of  whether  claimant  established  by  a  preponderance  of  the \nevidence that he suffered an injury arising out of and in the course of his employment.  “The burden \nof proof for causation is a preponderance of the evidence, which is more likely than not or more than \n50%  probability.” Wal-Mart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  990  S.W.2d  522  (1999). I  am \nsatisfied from the testimony of both claimant and Mr. Slinker, claimant’s supervisor, that small pieces \nof wire, nails and other debris were on the ground in the area where claimant worked, and that such \n\nShelton-H305461 \n9 \n \n \ndebris  was  left  there  for  extended  periods  of  time after  the  compactor  was  cleared  after  each  use.   \nClaimant testified that he had to walk across that debris daily, and Mr. Slinker confirmed that was part \nof claimant’s job. As such, I am satisfied that it is more likely than not that claimant stepped on the \npiece of metal that was embedded in his foot while working for respondent, City of Booneville, and \ntherefore,  I  find  that  he  has  established  by  a preponderance  of  the  evidence  that  he  is  entitled  to \nworkers’ compensation benefits for the injury to his left foot beginning on August 16, 2023.   \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nAll issues not addressed herein are expressly reserved under the Act. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $579.50. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":16995,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H305461 TOMMY J. SHELTON, EMPLOYEE CLAIMANT CITY OF BOONEVILLE, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, CARRIER RESPONDENT OPINION FILED MARCH 14, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Arkansas. ...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:56:30.563Z"},{"id":"alj-H303422-2024-03-13","awccNumber":"H303422","decisionDate":"2024-03-13","decisionYear":2024,"opinionType":"alj","claimantName":"Lori Brown","employerName":"Casey’s General Stores, Inc","title":"BROWN VS. CASEY’S GENERAL STORES, INC. AWCC# H303422 MARCH 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BROWN_LORI_H303422_20240313.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BROWN_LORI_H303422_20240313.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H303422 \n \nLORI J. BROWN, EMPLOYEE                   CLAIMANT \n \nCASEY’S GENERAL STORES, INC., EMPLOYER                    RESPONDENT \n \nACE AMERICAN INSURANCE COMPANY, \nINSURANCE CARRIER              RESPONDENT \n \nCANNON COCHRAN MANAGEMENT  \nSERVICES,INC. d/b/a CCMSI, TPA                      RESPONDENT \n            \nOPINION FILED MARCH 13, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty,  Arkansas on March 5, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by Mr. Eric Newkirk, Attorney-at-Law of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on March 5, 2024, in Little Rock, \nArkansas on respondent’s Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode Annotated §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct.  The claimant was pro se and failed to appear for the hearing.  The claimant had filed \na Form AR-C on May 26, 2023, contending that she had injured her back/spine injury (left \nside of her back) that allegedly occurred on April 29, 2023.  The First Report of Injury as \nwell as the Form AR-2 timely submitted by the respondents on May 30, 2023, verified that \nthe claim was denied for failure to meet the requirements of compensability pursuant to \nArkansas Law.  Correspondence from the Legal Advisor Division of the Commission on \nMay 30, 2023, informed the claimant of the respondent’s position.   \n\n A Motion to Dismiss was filed on or about December 20, 2023, requesting that the \nmatter be dismissed for failure to prosecute pursuant to A.C.A. §11-9-702(a)(4) and Rule \n099.13.  The claimant has not requested a hearing to date and more than (6) six months \nhave passed since the filing of the original claim nor is there any record of her contacting \nthe Commission.   \n Appropriate notice was provided to the claimant notifying her that a hearing on the \nMotion to Dismiss was set for March 5, 2024, in Little Rock, Arkansas.  The claimant did \nnot file a response and failed to appear on the hearing date.  At the time of the hearing, \nEric  Newkirk appeared  on  behalf  of  the respondents and asked  that  the  matter  be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  Ark. Code Ann. §11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3015,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303422 LORI J. BROWN, EMPLOYEE CLAIMANT CASEY’S GENERAL STORES, INC., EMPLOYER RESPONDENT ACE AMERICAN INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT CANNON COCHRAN MANAGEMENT SERVICES,INC. d/b/a CCMSI, TPA RESPONDENT OPINION FILED MARCH 13, 2024 Hearing ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:56:16.062Z"},{"id":"alj-H302098-2024-03-13","awccNumber":"H302098","decisionDate":"2024-03-13","decisionYear":2024,"opinionType":"alj","claimantName":"Roger Canard","employerName":"Bray Fast Freight, LLC","title":"CANARD VS. BRAY FAST FREIGHT, LLC AWCC# H302098 MARCH 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/CANARD_ROGER_H302098_20240313.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CANARD_ROGER_H302098_20240313.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H302098 \n \nROGER CANARD, EMPLOYEE         CLAIMANT \n \nBRAY FAST FREIGHT, LLC, EMPLOYER           RESPONDENT \n \nARKANSAS TRUCKING ASSOCIATION SI FUND, \nCANNON COCHRAN MANAGEMENT SERVICES,  \nCARRIER/TPA               RESPONDENT \n            \nOPINION FILED MARCH 13, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on March 5, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents  are  represented  by Mr. Guy  Alton  Wade,  Attorney-at-Law  of Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on March 5, 2024, in Little Rock, \nArkansas on respondent’s Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode  Annotated  §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct.  The claimant was pro se and failed to appear for the hearing.  The claimant had filed \na Form AR-C on May 24, 2023, contending that he had injured his head, neck, back, left \nknee, left ankle, left shoulder, chest cavity, right hip, and other whole body.   The First \nReport of Injury in regard to this claim was filed on May 30, 2023, and it provided that the \nclaimant was  in  the  sleeper  bunk  of  a  truck  when  the  co-driver  had  an  accident.   The \nForm AR- 2 which had been previously filed on April 4, 2023, provided that the claim was \naccepted as compensable and all appropriate medical and indemnity benefits were being \npaid.   \n\nThe claimant was originally represented by Laura Beth York who was allowed to \nwithdraw by an Order from the Full Commission dated October 24, 2023, after she had \nmade numerous attempts to get in touch with the claimant.   A Motion to Dismiss by letter \nwas  filed  on or  about December 15,  2023,  requesting  that  the matter  be dismissed for \nfailure to prosecute.  The claimant has not requested a hearing to date and more than six \n(6)  months have passed since the filing of the original claim nor is there any record of \nhim contacting the Commission after the date his attorney was allowed to withdraw.   \n Appropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was set for March 5, 2024, in Little Rock, Arkansas.  The claimant did \nnot file a response and failed to appear on the hearing date.  At the time of the hearing, \nGuy  Alton Wade appeared  on behalf  of  the respondents and asked  that  the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  A.C.A. §11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3217,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302098 ROGER CANARD, EMPLOYEE CLAIMANT BRAY FAST FREIGHT, LLC, EMPLOYER RESPONDENT ARKANSAS TRUCKING ASSOCIATION SI FUND, CANNON COCHRAN MANAGEMENT SERVICES, CARRIER/TPA RESPONDENT OPINION FILED MARCH 13, 2024 Hearing before Administrative Law Judge James ...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["neck","back","knee","ankle","shoulder","hip"],"fetchedAt":"2026-05-19T22:56:18.128Z"},{"id":"alj-H003296-2024-03-13","awccNumber":"H003296","decisionDate":"2024-03-13","decisionYear":2024,"opinionType":"alj","claimantName":"Joseph Duckworth","employerName":"B R Mcginity Mechanical Contractors Co","title":"DUCKWORTH VS. B R MCGINITY MECHANICAL CONTRACTORS CO. AWCC# H003296 MARCH 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DUCKWORTH_JOSEPH_H003296_20240313.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DUCKWORTH_JOSEPH_H003296_20240313.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H003296 \n \nJOSEPH DUCKWORTH, EMPLOYEE        CLAIMANT \n \nB R MCGINITY MECHANICAL CONTRACTORS CO., INC.         RESPONDENT \n \nEMASCO INSURANCE COMPANY, CARRIER / \nEMPLOYERS MUTUAL CASUALTY COMPANY, TPA         RESPONDENT \n            \nOPINION FILED MARCH 13, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on March 5, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by Ms. Karen H. McKinney, Attorney-at-Law of Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on March 5, 2024, in Little Rock, \nArkansas on respondents’ Fourth Motion to Dismiss for failure to prosecute pursuant to \nArkansas  Code  Annotated §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant was pro se and failed to appear for the hearing.  The \nclaim involved  an  alleged  injury  to  the  claimant’s  back,  spine,  and  abdomen,  on \nSeptember 24, 2019.  The respondents had filed an initial Motion to Dismiss on April 1, \n2021, and a supplemental Motion to Dismiss on October 27, 2021.  The Motion to Dismiss \nwas denied.  Another Motion to Dismiss was then later filed on April 28, 2023.  On May \n19, 2023, the claimant’s attorney emailed the Commission requesting that this matter be \nassigned to an administrative law judge.  A Prehearing Order was issued scheduling this \nmatter  for  a  hearing  On  October  3,  2023.    Prior  to  the  scheduled  hearing,  the  parties \nreached  an  amicable  Joint  Petition  settlement,  and  the  hearing  was  removed  from  the \n\ndocket and a Joint Petition hearing was scheduled for September 26, 2023.  Prior to the \nhearing on the Joint Petition, the claimant changed his mind in regard to the settlement \nof the matter by a joint petition.  At this point, the claimant’s attorney filed  a  Motion  to \nWithdraw as Counsel, which was granted by the Full Commission on December 1, 2023.  \nThe claimant has failed to prosecute the claim and has not requested a hearing in the \npast six (6) months.  \nAnother Motion to Dismiss was filed on January 9, 2024, requesting that the matter \nbe dismissed for failure to prosecute pursuant to Commission Rule 099.13 and Ark. Code \nAnn. §11-9-702(a)(4) and Ark. Code Ann. §11-9-702(d).  The claimant has not requested \na hearing to date and more than six (6) months have passed since the filing of the original \nclaim, nor is there any record of him contacting the Commission after the date his attorney \nwas allowed to withdraw.   \n Appropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was set for March 5, 2024, in Little Rock, Arkansas.  The claimant did \nnot file a response and failed to appear on the hearing date.  At the time of the hearing, \nKaren H. McKinney appeared on behalf of the respondents and asked that the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, it is found that this matter should be dismissed without prejudice, for failure \nto prosecute  pursuant to Arkansas Code Annotated §11-9-702  and  Rule  099.13  of  the \nArkansas Workers’ Compensation Act. \nORDER \n\n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3719,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H003296 JOSEPH DUCKWORTH, EMPLOYEE CLAIMANT B R MCGINITY MECHANICAL CONTRACTORS CO., INC. RESPONDENT EMASCO INSURANCE COMPANY, CARRIER / EMPLOYERS MUTUAL CASUALTY COMPANY, TPA RESPONDENT OPINION FILED MARCH 13, 2024 Hearing before Administrative Law Judge J...","outcome":"dismissed","outcomeKeywords":["dismissed:11","granted:1","denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:56:20.201Z"},{"id":"alj-H005743-2024-03-13","awccNumber":"H005743","decisionDate":"2024-03-13","decisionYear":2024,"opinionType":"alj","claimantName":"Joe Kell","employerName":"Nashville Sch. Dist","title":"KELL VS. NASHVILLE SCH. DIST. AWCC# H005743 MARCH 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Kell_Joe_H005743_20240313.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Kell_Joe_H005743_20240313.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H005743 \n \n \nJOE C. KELL, EMPLOYEE CLAIMANT \n \nNASHVILLE SCH. DIST., \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCH. BDS. ASSN., \n THIRD-PARTY ADMR. RESPONDENT \n \n \nOPINION FILED MARCH 13, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on January 10, \n2024, in Little Rock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Mr. Jarrod S. Parrish, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  Respondents’ Motion  to \nDismiss.  A hearing on the motion was conducted on January 10, 2024, in Little \nRock, Arkansas.  Claimant appeared in person and testified.  Respondents were \nrepresented  at  the  hearing  by  Mr. Jarrod  S.  Parrish,  Attorney  at  Law,  of  Little \nRock, Arkansas.  In addition to Claimant’s testimony, the record consists of the \nfollowing exhibits:  Claimant’s Exhibit 1, medical records, consisting of one index \npage  and eight numbered  pages thereafter; Claimant’s Exhibit 2, a handwritten \nlist  of  dates  of  service,  providers, and  charges  therefor,  consisting  of  one  page; \nRespondents’ Exhibit 1, forms,  pleadings,  and  correspondence  related  to this \nclaim, consisting  of two  index  pages  and  46 numbered  pages;  Respondents’ \nExhibit  2,  the  brief  in  support  of  their  Motion  to  Dismiss,  consisting  of  nine \n\nKELL – H005743 \n \n2 \nnumbered  pages.  Also,  in  order  to  address  adequately  this  matter  under  Ark. \nCode Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing \n. . . in a manner which best ascertains the rights of the parties”), and without \nobjection,   I   have   blue-backed   to   the   record correspondence   from   the \nCommission’s file on the claim, along with the post-hearing briefs of the parties, \ntotaling ten pages.    In  accordance  with Sapp  v.  Tyson  Foods,  Inc.,  2010  Ark. \nApp. 517, ___ S.W.3d ___, these documents have been served on the parties in \nconjunction with this opinion. \n Moreover, I have blue-backed to the record the post-hearing briefs of the \nparties,  both  filed  on  January  24,  2024,  consisting  of  three  and  four  numbered \npages,   respectively.    Finally,   and   without   objection,   the   transcript   of   the \nSeptember  7,  2021,  hearing  on  this  claim  has  been  incorporated  herein  in  its \nentirety by reference. \n The  evidence  reflects  that on August  27,  2020,  2020,  Claimant through \ncounsel filed a Form AR-C, alleging that he was entitled to the full range of initial \nand  additional  benefits  for  his alleged  injury  in  the  form  of  his  work-related \ncontraction of a case of COVID-19.  Accompanying this form was a letter from his \nattorney  to  the  Commission,  “request[ing  that]  this  claim  be  referred  to  an \nadministrative law judge for a hearing on the issues of compensability, temporary \ntotal  disability  benefits,  medical  expenses,  thirty-six  percent  (36%)  penalty \npursuant  to  [Ark.  Code  Ann.] § 11-9-802(e), and controversion.”  Following  the \nsubmission   of   prehearing   questionnaire   responses   by   the   parties   and   a \n\nKELL – H005743 \n \n3 \nprehearing  telephone  conference  with  them  on  April  20,  2021,  Administrative \nLaw Judge Chandra Black scheduled a hearing for July 13, 2021, at 10:00 a.m. \nin Texarkana on the following issues: \n1. Whether Claimant’s COVID-19 diagnosis is compensable. \n \n2. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits \nfrom June 11, 2020, to a date yet to be determined. \n \n3. Whether Claimant is entitled to medical benefits. \n \n4. Whether Claimant’s attorney is entitled to a controverted attorney’s \nfee. \n \nAll other issues were reserved.  The hearing was later continued to September 7, \n2021.    Following  that  hearing,  on  November  5,  2021,  Judge  Black  entered  an \nopinion that contains the following Findings of Fact and Conclusions of Law: \n1. The  Arkansas  Workers’  Compensation  Commission  has \njurisdiction over this claim. \n \n2. [The following] stipulations [are hereby accepted] as fact[:] \n \n(a) The  Arkansas  Workers’  Compensation  Commission \nhas jurisdiction of the within claim. \n \n(b) The employee-employer-insurance carrier relationship \nexisted  at  all  relevant  times,  including  on  or  about \nJune 10, 2020. \n \n(c) Claimant  is  entitled  to  the  maximum  compensation \nrates for a 2020 injury. \n \n(d) All   issues   not   litigated   are   reserved   under   the \nArkansas Workers’ Compensation Act. \n \n(e) Respondents   have   controverted   this   claim   in   its \nentirety. \n \n\nKELL – H005743 \n \n4 \n(f) Respondents are entitled to a credit for a period of 90 \ndays  if  Claimant  is  awarded  temporary  total  disability \ncompensation. \n \n3. Claimant proved by a preponderance of the evidence that on \nor about June 10, 2020, he contracted COVID-19 during and \nin the course of his employment while attending a mandatory \nmeeting with Nashville School District administrators. \n \n4. Claimant proved by a preponderance of the evidence that all \nof the medical treatment of record (including Dr. Ferguson’s \nrecommendations   on   August   25,   2020)   is   reasonably \nnecessary  in  connection  with  the  injury  received  by  him.  \nHowever,  there  is  no  documented  recommendation  by  any \nphysician  or  medical  personnel  for  any  further  treatment  for \nClaimant’s  compensable  injury.    Therefore  .  .  .  Claimant \nfailed   to   prove   his   entitlement   to   any   further   medical \ntreatment due to his COVID-19 injury of June 10, 2020. \n \n5. Claimant  proved  his  entitlement  to  temporary  total  disability \n[benefits] from June 13, 2020, until November 25, 2020. \n \n6. Claimant’s attorney  is  entitled  to  a  controverted attorney’s \nfee  on  the  indemnity  [benefits] awarded  pursuant  to  this \nopinion. \n \nOn November 17, 2021, Judge Black entered an order that changed Stipulation \nNo. 6 to read:  “Claimant’s entitlement to temporary total disability [benefits], if \nany, prior to the cessation of his pay on February 28, 2021, is limited to an award \nof 90 days.”  This decision was not appealed.  The earlier opinion is thus binding \non  this  proceeding  under  the  Law  of  the  Case  Doctrine;  and  it  is res  judicata.  \nSee Thurman v. Clarke Industries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). \n The  record  reflects  that  no  further  activity  occurred  on  this  claim  until \nSeptember  22,  2023,  when  Respondents  filed  the  instant  Motion  to  Dismiss \nunder AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 (Repl. 2012).  Therein, \n\nKELL – H005743 \n \n5 \nthey  alleged  that:    (1)  more  than  six  months  had  elapsed  since  the  filing    the \nForm  AR-C; and (2) Claimant had “not sought any type of bona fide hearing” \nbefore  the  Commission  over  the  previous  six-month  period.    The  file  was \nreassigned  to  Judge  Black  on  September  25,  2023;  and that  same  date,  she \nwrote  Claimant  and  his  attorney,  requesting  a  response  to  the  motion  within  20 \ndays.  His counsel responded by way of a prehearing questionnaire response on \nOctober 11,  2023,  contending  that  Claimant’s  “claims  [sic]  should  not  be \ndismissed.”    The only  issue  listed  in  the  response  concerned  the  motion;  no \nbenefits were requested or listed as being in dispute.  Respondents, in turn, filed \ntheir  prehearing  questionnaire  response on  November  28,  2023;  likewise,  they \ndid  not  identify  any  benefits  as  being  at  issue  in  the  claim.    Following  a \nprehearing  telephone  conference  on  November  29,  2023,  Judge  Black  sent  an \nemail to the parties that reads: \nAt  the  time  of  the  [prehearing  telephone  conference]  today  in  the \nabove  claim,  Mr.  Davis  asked  Mr.  Parrish  to  provide  him  with \nconfirmation that the Respondents have paid to or on behalf of the \nClaimant  all  appropriate  benefits/payments  due  him  under  the \nArkansas   Workers'   Compensation   Act.      Should   Mr.   Parrish \naccomplish  this  task  to  Mr.  Davis’s  satisfaction[,]  then  he  will \nwithdraw his objection to the [Motion to Dismiss]. \n \nOn    November    30,    2023,    Respondents    filed    an    amended    prehearing \nquestionnaire  response.    Yet  again,  no  issues  were  identified  for  adjudication \nother  than  whether  the  instant  claim  should  be  dismissed.   On  December  1, \n2023,  a  hearing  on  the  motion  was  scheduled  for  December  1,  2023,  at  12:00 \np.m. at the Commission in Little Rock. \n\nKELL – H005743 \n \n6 \n I advised the parties by email that I would be presiding over the hearing in \nplace  of  Judge  Black.    On  the  day before the hearing, Respondents’ counsel \nwrote me: \nIt  is  my  understanding  that  you  are handling  the  dismissal  hearing \ntomorrow.      Per   the   discussion   at   the   [prehearing   telephone \nconference] reflected in [Judge Black’s November 29, 2023, email], \nMr.   Davis   wanted   confirmation   that all bills   had   been   paid \nassociated with Judge Black’s award of benefits before withdrawing \nthe objection to the Motion to Dismiss.  As part of his exhibit packet, \nMr.  Davis  introduced  a  report  from  a  diagnostic  study  done  at \nBaptist  [Health]  that  did  not  match  any  of  the  payments  on  the \npayment  ledger.    My  client  has  agreed  to  pay  that  bill.    I  have \nattached the “Explanation of Benefits” reflecting application of the \nfee schedule.  The check will be issued tomorrow.  By copy of this \ncorrespondence, I am providing Mr. Davis with confirmation that the \nbill is being paid. \n \nClaimant’s counsel replied to this communication in short order, stating: \nJudge Fine, please be advised of the following:  First, I object to the \nintroduction  of  any evidence  at  this  late  hour.    Second,  I  never\n1\n \nmade any  agreement not  to  oppose  the  motion.   Third,  we  plan  to \nbe present for the hearing 1/10/24. \n \n The  hearing took  place  as  scheduled.    Both  parties  appeared,  and \nClaimant  testified.  Respondents  argued  for  dismissal  under  both  §  11-9-\n702(a)(4) & (d) (Repl. 2012) and Rule 13.  The following exchange took place: \nJUDGE FINE:  Since you’re on the stand, in the event that I do not \ndismiss  your  claim,  are  you  asking  for  a  hearing  on  your  claim?  \nAnd I understand you’re not an attorney, sir, but are you asking for \na hearing at this point on your claim? \n \n \n \n1\nThis statement notwithstanding, nothing in the evidentiary record reflects \nthat Claimant replied to Judge Black’s November 29, 2023, email that purportedly \nsummarized the substance of the prehearing telephone conference, to take issue \nwith her characterization of the understanding reached at the conference. \n\nKELL – H005743 \n \n7 \nTHE WITNESS:  If that’s what it takes to get reimbursed for these \nexpenses, yes. \n \nClaimant’s reference to “these expenses” is a list of medical expenses detailed in \nhis Exhibit 2.  His testimony was that these six items pertains to treatment he has \nallegedly undergone and billed to his health insurance; the amount listed, totaling \n$1,692.19, is the portion for which he is responsible.  The items are: \nJuly 13, 2022..................St. Vincent Heart.........................$121.77 \nNovember 29, 2022.........St. Vincent Heart.........................$403.48 \nJune 21, 2023.................Howard Memorial........................$119.99 \nAugust 22, 2023..............St. Vincent Heart.........................$262.60 \nSeptember 8, 2023..........Howard Memorial..........................$89.35 \nNovember 28, 2023..........Irhythm Technologies...................$695.00 \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including   medical   reports, \ndocuments,  and other matters  properly before  the  Commission,  and  having  had \nan  opportunity  to  hear  the  testimony  of Claimant,  I  hereby  make  the  following \nfindings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n\nKELL – H005743 \n \n8 \n3. Respondents have not proven by a preponderance of the evidence \nthat  Claimant  has  failed  to  prosecute this  claim under AWCC  R. \n099.13. \n4. Respondents have not proven by a preponderance of the evidence \nthat  this  claim  should  be  dismissed  under  Ark.  Code  Ann.  §  11-9-\n702(a)(4) or (d) (Repl. 2012). \n5. Claimant has requested a hearing on the issue of his entitlement to \nadditional medical benefits. \n6. This claim will proceed to a hearing. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  In turn, Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) read: \n(4)   If   within   six   (6)   months   after   the   filing   of   a   claim   for \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing,  be  dismissed  without  prejudice  to  the  refiling  of  the  claim \nwithin  limitation  periods  specified  in  subdivisions  (a)(1)-(3)  of  this \nsection. \n \n. . . \n \n(d) If  within  six  (6)  months  after  the  filing  of  a  claim  for additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \n\nKELL – H005743 \n \n9 \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing, if necessary, be dismissed without prejudice to the refiling \nof  the  claim  within  limitation  periods  specified  in  subsection (b) of \nthis section. \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove \nby  a  preponderance  of  the  evidence  that  dismissal  should  be  granted.    The \nstandard “preponderance of the evidence” means the evidence having greater \nweight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson \nWorld Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37 S.W.3d 649 (2001).  The Commission must sort through conflicting evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n Dismissal  under  either §  11-9-702(a)(4)  or  (d)—regardless  of  which \nprovision  applies—is  not called  for because  Claimant  clearly  complied  with  the \nabove-quoted  language in  these  provisions by  making  a  bona  fide  hearing \nrequest—a request that ultimately led to a hearing on the merits on September 7, \n2021.  This statute must be strictly construed, in accordance with Ark. Code Ann. \n§ 11-9-704(c)(3) (Repl. 2012).  See Duke v. Regis Hairstylists, 55 Ark. App. 327, \n\nKELL – H005743 \n \n10 \n935  S.W.2d  600  (1996).    “Strict  construction  means  narrow  construction  and \nrequires that nothing be taken as intended that is not clearly expressed.”  Hapney \nv. Rheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000). \n The Arkansas Court of Appeals in Johnson, supra, held that a claim could \nbe dismissed for lack of prosecution based on the fact that there is no justiciable \nissue.    The  authority for  doing  so  comes  under  Rule  13,  which  the  Commission \npromulgated  under  Ark.  Code  Ann.  §  11-9-205(a)(1)(A)  (Repl.  2012).    This \nprovision authorizes it “[t]o make such rules and regulations as may be found \nnecessary[.]”  See Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d \n562 (1969); Johnson, supra.  Contra Dillard v. Benton Cty. Sheriff’s Off., 87 Ark. \nApp. 379, 192 S.W.3d 287 (2004)(“Rule 13 . . . allows a dismissal . . . pursuant to \nArk.  Code Ann.  § 11-9-702(b)(4),  the portion  of  the  statute  relating  to additional \nbenefits”).  Certainly, such a claim could be re-filed  if  a  justiciable  issue  arises, \nprovided  that  all  other  prerequisites  for  a  cognizable  claim  are  met.  As  shown \nabove, Claimant  testified  that  he  would  like  a  hearing  on  his  entitlement  to \nreimbursement  for  the  expenses  itemized  above.    I  credit  this.    Consequently, \ndismissal  is  not  called  for  under Johnson, supra,  since  there  are  justiciable \nissues present. \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  Motion  to  Dismiss  hearing \nunder Rule 13, he has not yet abridged that rule.  Based on his hearing request, \n\nKELL – H005743 \n \n11 \nprehearing  questionnaires  will  be  immediately  issued  to  the  parties,  and  this \nmatter will again proceed to a full hearing on the merits. \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby respectfully denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":18114,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H005743 JOE C. KELL, EMPLOYEE CLAIMANT NASHVILLE SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCH. BDS. ASSN., THIRD-PARTY ADMR. RESPONDENT OPINION FILED MARCH 13, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 10, 2024, ...","outcome":"dismissed","outcomeKeywords":["dismissed:3","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:56:22.279Z"},{"id":"alj-H303756-2024-03-13","awccNumber":"H303756","decisionDate":"2024-03-13","decisionYear":2024,"opinionType":"alj","claimantName":"Andrea Mckennon","employerName":"Chambers Health & Rehabilitation","title":"McKENNON VS. CHAMBERS HEALTH & REHABILITATION AWCC# H303756 MARCH 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/McKENNON_ANDREA_H303756_20240313.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"McKENNON_ANDREA_H303756_20240313.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H303756 \n \nANDREA R. McKENNON, EMPLOYEE        CLAIMANT \n \nCHAMBERS HEALTH & REHABILITATION, EMPLOYER           RESPONDENT \n \nARKANSAS SELF-INSURANCE TRUST / CCMSI, \nCARRIER/TPA                 RESPONDENT \n            \nOPINION FILED MARCH 13, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on March 5, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by Ms. Melissa Wood, Attorney-at-Law of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on March 5, 2024, in Little Rock, \nArkansas on respondents’ Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode  Annotated §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct.  The claimant was pro se and failed to appear for the hearing.  The claimant had filed \na Form AR-C on or about June 13, 2023, contending that she had developed COVID from \na work-related incident, which had occurred on April 17, 2023.  The claim was denied in \nits entirety.   The First Report of Injury in regard to this claim was filed on June 21, 2023.  \nThe Form AR-2 was filed on February 12, 2024, which denied the claim in its entirety and \nstated the COVID was due to an outside COVID exposure.   \nA Motion to Dismiss was filed on February 12, 2024, requesting that the matter be \ndismissed for failure to prosecute pursuant to Commission Rule 099.13 and Ark. Code \n\nAnn. §11-9-702.  The claimant has not requested a hearing to date and more than six (6) \nmonths have passed since the filing of the original claim.   \n Appropriate notice was provided to the claimant notifying her that a hearing on the \nMotion to Dismiss was set for March 5, 2024, in Little Rock, Arkansas.  The claimant did \nnot file a response and failed to appear on the hearing date.  At the time of the hearing, \nMelissa  Wood appeared  on  behalf  of  the respondents and asked  that  the  matter  be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, it is found that this matter should be dismissed without prejudice, for failure \nto  prosecute  pursuant  to  Ark. Code Ann. §11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2761,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303756 ANDREA R. McKENNON, EMPLOYEE CLAIMANT CHAMBERS HEALTH & REHABILITATION, EMPLOYER RESPONDENT ARKANSAS SELF-INSURANCE TRUST / CCMSI, CARRIER/TPA RESPONDENT OPINION FILED MARCH 13, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little...","outcome":"dismissed","outcomeKeywords":["dismissed:7","denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:56:24.347Z"},{"id":"alj-H103838-2024-03-13","awccNumber":"H103838","decisionDate":"2024-03-13","decisionYear":2024,"opinionType":"alj","claimantName":"Saul Perez","employerName":"Southern Tire Mart, LLC","title":"PEREZ VS. SOUTHERN TIRE MART, LLC AWCC# H103838 & H304006 MARCH 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PEREZ_SAUL_H103838-H304006_20240313.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PEREZ_SAUL_H103838-H304006_20240313.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H103838 & H304006 \n \nSAUL PEREZ, EMPLOYEE         CLAIMANT \n \nSOUTHERN TIRE MART, LLC EMPLOYER           RESPONDENT \n \nTRAVELERS INDEMNITY CO., CARRIER/TPA          RESPONDENT  \n           \nOPINION FILED MARCH 13, 2024 \n \nHearing  before  Administrative  Law  Judge  James  D.  Kennedy  in Little  Rock,  Pulaski \nCounty, Arkansas on March 5, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by Mr. Guy Alton Wade, Attorney-at-Law of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on March  5, 2024, in Little  Rock, \nArkansas on  respondents’ Motion  to  Dismiss for  failure  to  prosecute  pursuant  to  Arkansas \nCode Annotated §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  \nThe claimant was pro se and failed to appear for the hearing.     \nThe claimant’s claim of H103838 First  Report  of  Injury was  filed on April  28,  2021, \nwhere the claimant alleged he felt a pop in his right shoulder while lifting a tire off of a hook.  \nThe  respondents  filed  an  AR-2 on  May  4,  2021,  that  made  no  statement  in  regard  to  the \nposition of the respondents. The respondents later filed a second AR-2 on August 24, 2022, \naccepting the claim as  a shoulder relocation  in regard to the right shoulder.  An AR-4  was \nalso  filed  by  the  respondents  on  August  24,  2022,  which  was  apparently  rejected  by \nCompliance, based upon the filing marks on the document.     \n The claimant later filed  a  second  claim  and  a  Form  AR-C  in  H304006  on  June  23, \n2023, contending that he had injured his shoulder, elbow, and arm.  The Form AR-2 filed on \nJuly 12, 2023, provided that there was no compensable injury to the left elbow.  The claimant \n\nwas originally represented by Mark Alan Peoples in regard to this claim who was allowed to \nwithdraw by an Order of the Full Commission dated December 19, 2023. \n A  Motion  to  Dismiss by  letter was  filed  on December  29,  2023,  requesting  that  the \nmatter be dismissed for failure to prosecute.  The claimant has not requested a hearing to \ndate and more than six (6) months have passed since the filing of the original claim nor is \nthere any record of the claimant contacting the Commission after the date his attorney was \nallowed to withdraw.   \n Appropriate  notice was  provided  to  the  claimant  notifying  him that  a hearing on  the \nMotion to Dismiss was set for March 5, 2024, in Little Rock, Arkansas.  The claimant did not \nfile a response and failed to appear on the hearing date.  At the time of the hearing, Guy Alton \nWade appeared on behalf of the respondents and asked that the matter be dismissed for lack \nof prosecution. \n After a review  of  the  record  as  a  whole,  to  include  all  evidence  properly  before  the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, it is found that this matter should be dismissed without prejudice, for failure to \nprosecute pursuant to Arkansas Code Annotated §11-9-702 and Rule 099.13 of the Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant  to  the  above  statement  of  the  case, there  is no  alternative  but  to  dismiss \nthese claims in their entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3512,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H103838 & H304006 SAUL PEREZ, EMPLOYEE CLAIMANT SOUTHERN TIRE MART, LLC EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO., CARRIER/TPA RESPONDENT OPINION FILED MARCH 13, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski County,...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:56:26.411Z"},{"id":"alj-H304672-2024-03-13","awccNumber":"H304672","decisionDate":"2024-03-13","decisionYear":2024,"opinionType":"alj","claimantName":"Gregory Roberson","employerName":"Pepper Source Ltd","title":"ROBERSON VS. PEPPER SOURCE LTD AWCC# H304672 MARCH 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ROBERSON_GREGORY_H304672_20240313.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROBERSON_GREGORY_H304672_20240313.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H304672 \n \nGREGORY ROBERSON, Employee                                                              CLAIMANT \n \nPEPPER SOURCE LTD, Employer                                                         RESPONDENT                                                                                             \n \nBRIDGEFIELD CASUALTY INSURANCE CO., Carrier                           RESPONDENT                                                                        \n \n \n OPINION FILED MARCH 13, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by JASON M. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On February  12,  2024,  the  above  captioned  claim  came  on  for  hearing  at Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on December 20, 2023 and \na  pre-hearing  order  was  filed  on  that  same date.   A  copy  of  the  pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The claimant sustained a compensable injury to his right shoulder on July 14, \n2022. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injuries to claimant’s neck and back on July 14, 2022. \n\nRoberson – H304672 \n 2 \nThe claimant contends  he sustained compensable injuries to his neck and back \nas well as his right shoulder.  He contends that the respondents did not dispute liability \nfor the neck and back until after he filed a Petition to Change Physicians.  Claimant is not \nrequesting  any  specific  benefits  at  this  time;  rather,  he  is  requesting  a  determination \nregarding compensability so that he can exercise his one time right to change physicians.  \nThe claimant contends he is entitled to additional compensation in the form of a change \nof physicians; however, he acknowledges that issue cannot be determined at this time \nand therefore reserves his right to exercise his one time change of physicians. \nThe respondents contend the claimant did not sustain a compensable neck or back \ninjury. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non December  20,  2023 and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.    Claimant  has failed  to  prove  by  a  preponderance  of  the  evidence  that  he \nsuffered a compensable injury to his cervical spine on July 14, 2022. \n 3.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his thoracic and lumbar spine on July 14, 2022.  \n\nRoberson – H304672 \n \n3 \n \n FACTUAL BACKGROUND \n The parties have stipulated that claimant suffered a compensable injury to his right \nshoulder while working for respondent on July 14, 2022.  On that date the claimant was \npinned between two totes which weighed 160-200 pounds.  Claimant testified that after \nthis incident he had pain in his mid-back and shoulder area; chest; and his neck.   \n Claimant was taken to Baptist Health where he was noted to have abrasions to his \nright  upper  back  and  bruising  to  his  upper  abdomen.    Claimant  was  diagnosed  with  a \ncrush  injury  to  his  right  arm;  crushed  chest;  abrasion  of  right  side of  back;  injury  of \nabdomen;  and  crushing injury  of  right  hand.    After  his  initial  treatment,  claimant  was \nevaluated  by  Cynthia  Johnson,  APRN.    In  her  report  of  July  27,  2022,  she  diagnosed \nclaimant’s condition as (1) pain in right shoulder; (2) strain of muscles, fascia and tendons \nat shoulder and upper arm level, right arm; (3) abrasion of right back wall of thorax; (4) \nabrasion of right front wall of thorax; (5) contusion of thorax; (6) cervical back pain; (7) \nsprain of ligaments of thoracic spine; and (8) sprain of ligaments of lumbar spine. \n Johnson’s  treatment  included  physical  therapy,  but  when  claimant’s  complaints \ncontinued she ordered MRI scans of claimant’s thoracic and lumbar spines which were \nperformed on August 24, 2022.  Based on the test results which revealed protrusions and \nbulges, Johnson referred claimant for a neurosurgical evaluation with Dr. Tomecek.   \n Claimant’s initial visit with Dr. Tomecek occurred on October 6, 2022, at which time \nhe noted that claimant’s lumbar MRI revealed a small disc herniation at L4-5 and that the \nthoracic MRI showed a disc protrusion at T5-6 and T8-9 with disc bulges at T2-3 and T3-\n4.  Dr. Tomecek stated that claimant would benefit from additional physical therapy and \nan L4-5 injection from Dr. Goodman.   \n\nRoberson – H304672 \n \n4 \n \n Claimant  returned  to  Dr.  Tomecek  on  December  1,  2022,  and  he  noted  that \nclaimant had undergone the injection and therapy and indicated that claimant felt 80-90% \nbetter.  Dr. Tomecek stated: \n  In regards to his low back injury I feel he has reached \n  maximal medical improvement.  On releasing him from \n  active medical care and regards to his thoracic and  \n  lumbar spine today.  He can continue to work at his \n  new regular job without restrictions. \n \n \n At the time he was seeing Dr. Tomecek for his spinal complaints claimant was also \nseeing  Dr.  Smith  for  his  right  shoulder  complaints.    Dr.  Smith  ordered  a  functional \ncapacities  evaluation  which  was  considered  to  be  reliable  and  indicated  that  claimant \ncould perform work in the medium classification.   \n Claimant returned to Dr. Smith on June 28, 2023 for a follow-up visit.  Dr. Smith \nnoted  that  claimant  was  making  complaints  of  additional  pain  during  and  after  the \nfunctional capacities evaluation.  Dr. Smith stated: \n  Right shoulder and upper extremity pain.  This seems to \n  be a little bit different of presentation the last time I saw \n  him.  I am more concerned with cervical radiculopathy \n  given the location and the constellation of symptoms. \n  I am recommending that we get x-rays of his cervical \n  spine.  I would also recommend an EMG nerve conduc- \ntion study of the right upper extremity.  Pending the \nresults of the x-rays of his c-spine, may give considera- \ntion to an MRI of the cervical spine. \n \n \n That same day claimant underwent x-rays of his cervical spine which revealed  \n degenerative changes.   Claimant also underwent an MRI scan of his cervical spine on   \nJuy 11, 2023 with the following impression: \n   \n\nRoberson – H304672 \n \n5 \n \n  C3-C4 Small central disc protrusion without significant \n  indentation subarachnoid space.  Mild foraminal spurring. \n  Diffuse mild disc bulges C5-C6, C6-C7 with foraminal \n  spur.   \n \n \n Subsequent  to  the  cervical  MRI  scan  claimant  returned  to  Dr. Tomecek on \nSeptember  7,  2023.    Dr. Tomecek  noted  the  MRI  findings  and  prescribed  physical \ntherapy.  Following  physical  therapy  claimant  returned  to  Dr.  Tomecek  on  October  5, \n2023, at which time he opined that claimant had reached maximum medical improvement \nand released claimant to return to work with no restrictions. \n As   previously   noted,   the   parties   have stipulated that   claimant   suffered   a \ncompensable injury to his right shoulder on July 14, 2022.  In addition to providing medical \ntreatment  for  the  right  shoulder,  respondent  also  provided  medical  treatment  for \nclaimant’s cervical, thoracic, and lumbar spine complaints.  After claimant was released \nby Dr. Tomecek on September 7, 2023, claimant filed a petition for a change of physician.  \nAt that point, respondent chose to deny compensability of injuries to claimant’s neck and \nback  on  July  14,  2022.    Claimant  has  filed  this  claim  contending  that  he  suffered \ncompensable injuries to his neck and back on July 14, 2022. \n \nADJUDICATION \n Claimant contends that he suffered compensable injuries to his neck and back as \na  result  of  the  accident  on  July  14,  2022.    Claimant’s  claim  is  for  a  specific  incident, \nidentifiable by time and place of occurrence.   In order to prove a compensable injury as \nthe  result  of  a  specific  incident  that  is  identifiable  by  time  and  place  of  occurrence,  a \nclaimant must establish by a preponderance of the evidence (1) an injury arising out of \n\nRoberson – H304672 \n \n6 \n \nand in the course of employment; (2) the injury caused internal or external harm to the \nbody  which  required  medical  services  or  resulted  in  disability  or  death;  (3)  medical \nevidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury was \ncaused by a specific incident identifiable by time and place of occurrence.  Odd Jobs and \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630.    \n First, I note that there is no question that the accident occurred on July 14, 2022 \nsince the parties have stipulated that claimant injured his right shoulder as a result of that \naccident.  Therefore, I find that claimant has proven that his injury arose out of and in the \ncourse of his employment and that the injury was caused by a specific incident identifiable \nby time and place of occurrence. \n I also find that claimant has proven that his injury caused internal or external harm \nto his body that required medical services.  The medical records indicate that claimant \ncomplained  of  pain  in  both  his  neck  and  back  which  resulted  in  him  receiving  medical \ntreatment.  This treatment included physical therapy and a lumbar epidural injection.  In \naddition, because of claimant’s complaints, medical tests in the form of cervical, thoracic, \nand lumbar MRI scans were performed.   \n The primary issue in this claim is whether claimant has satisfied the last element \nof  compensability – medical evidence  supported  by  objective  findings  establishing  the \ninjury.  I find that claimant has met his burden of proof with respect to his thoracic and \nlumbar spines.  I also find that claimant has failed to meet his burden of proof with respect \nto his cervical spine. \n Based on claimant’s complaints of thoracic and lumbar pain, claimant underwent \na thoracic MRI and lumbar MRI on August 24, 2022, approximately seven weeks after his \n\nRoberson – H304672 \n \n7 \n \naccident on July 14.  The MRI reports contain the following impressions: \n  8/24/22 MRI Lumbar Spine: \n  Mild degenerative changes of the lumbar spine as \n  described above.  Small far left lateral protrusion L4-5 \n  with mild left L4-5 foraminal stenosis.  No canal stenosis. \n \n  8/24/22 MRI Thoracic Spine: \n \n  Multilevel degenerative changes as above with left-sided \n  disc bulges at T2-3 T3-4.  Left-sided disc protrusion  \nT5-6 with some left ventral thecal sac compression.  No \ncanal stenosis.  No compression fractures. \n \n \n After  the  MRIs  were  performed,  claimant  was  referred  to  Dr.  Tomecek  for \ntreatment.  In his report of October 6, 2022, he noted that claimant’s lumbar MRI scan \nshowed a small disc herniation at L4-5 and that the thoracic scan showed disc protrusions \nat T5-6 and T8-9 with disc bulges at T2-3 and T3-4.  He diagnosed claimant’s condition \nas  a  lumbar  herniated  disc  at  L4-5  and  a  thoracic  disc  at T5-6.    He  also  prescribed \nphysical therapy and a lumbar epidural injection.   \n While Dr. Tomecek did indicate that the MRI scan revealed degenerative changes, \nhe also noted that there was a lumbar herniated disc and disc bulges present.  These are \nobjective findings and satisfy the remaining element of compensability. \n Accordingly,  based  on  the  foregoing,  I  find  that  claimant  has  met  his  burden  of \nproving by a preponderance of the evidence that he suffered compensable injuries to his \nthoracic and lumbar spine as a result of the accident on July 14, 2022.   \n With respect to the claimant’s cervical spine, I find that he has failed to meet his \nburden of proof.  The medical records do indicate that claimant made complaints of neck \npain immediately after the accident on July 14.  However, unlike the lumbar and thoracic \n\nRoberson – H304672 \n \n8 \n \nMRIs, there was no MRI performed on the claimant’s cervical spine in August 2022.  After \nthose  MRIs  were  performed  and  claimant  began  treating  with  Dr. Tomecek,  claimant’s \ntreatment focused on the thoracic and lumbar spine.  In his report of December 1, 2022, \nDr. Tomecek indicated that he was releasing claimant from his care for his thoracic and \nlumbar spine.  He also indicated that claimant could return to work without restrictions.   \n Claimant  subsequently  underwent  a  functional  capacities  evaluation  and  was \nreleased by Dr. David Dimet, an associate of Dr. Smith who is treating claimant for his \ncompensable shoulder injury.  After this release claimant did not return to see Dr. Smith \nagain until June 28, 2023.  Dr. Smith reported that claimant gave a history of a burning \npain  in  his  upper  trapezial region  as  well  as  numbness  down  into  the  hand  which  he \nnoticed  during  the  FCE  and  afterwards.    Dr.  Smith  noted  that  this presentation  was “a \nlittle bit different of presentation the last time I saw him.”  Dr. Smith was concerned with \ncervical radiculopathy and ordered an EMG nerve conduction study, x-rays, and a cervical \nMRI.   \n The EMG of July 27, 2023 was interpreted as normal.  The x-rays of June 28, 2023 \nwere interpreted as showing multilevel degenerative changes.  The July 11, 2023 cervical \nMRI scan contained the following impression: \n  C3-C4 small central disc protrusion without significant \n  indentation subarachnoid space.  Mild foraminal \n  spurring.  Diffuse mild disc bulges C5-C6, C6-C7  \n  with foraminal spur. \n \n \n A  small  disc  protrusion  would  be  considered  an  objective  finding;  however, \naccording to Dr. Tomecek, the findings on the cervical MRI scan were degenerative in \nnature and not acute.  In his report of September 7, 2023, Dr. Tomecek stated: \n\nRoberson – H304672 \n \n9 \n \n  On objective testing he has a normal EMG of the right \n  upper extremity with no sign of nerve injury.  He has an \n  MRI of the cervical spine that shows no acute injury \n  fractures or subluxations.  This appears to be a soft \n  tissue injury.  (Emphasis added.) \n \n \n Dr. Tomecek reiterated that the MRI scan showed only degenerative changes in \nhis report of October 5, 2023, in which he stated: \n  He has undergone an EMG on 7/27/2023 and this was \n  a normal study with no evidence electrographically of \n  cervical radiculopathy, plexopathy, no evidence of peri- \n  pheral neuropathy or any peripheral nerve entrapment \n  syndrome or injury in the arm.  He has had an MRI on \n  7/11/2023 that I have reviewed that only shows minimal \n  degenerative disc bulges at C3-4 C4-5 C5-6 and C6-7. \n  There is mild degenerative change of the disc and with \n  loss of cervical lordosis.  (Emphasis added.) \n \n \n Thus, according to Dr. Tomecek, the findings on claimant’s cervical MRI scan are \ndegenerative  in  nature.    Based  upon  Dr.  Tomececk’s opinion  that  these  findings  are \ndegenerative  in  nature  and  not  acute,  I  find  that  claimant  has  failed  to  offer  medical \nevidence supported by objective findings establishing an injury to his cervical spine on \nJuly 14, 2022.   \nAWARD \n Claimant has failed to prove by a preponderance of the evidence that he suffered \na compensable injury to his cervical spine on July 14, 2022.  Claimant has proven by a \npreponderance of the evidence that he suffered a compensable injury to his thoracic and \nlumbar spine on July 14, 2022.   \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $393.45. \n\nRoberson – H304672 \n \n10 \n \n IT IS SO ORDERED. \n \n     _______________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":16579,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304672 GREGORY ROBERSON, Employee CLAIMANT PEPPER SOURCE LTD, Employer RESPONDENT BRIDGEFIELD CASUALTY INSURANCE CO., Carrier RESPONDENT OPINION FILED MARCH 13, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["shoulder","neck","back","cervical","thoracic","lumbar","strain","sprain"],"fetchedAt":"2026-05-19T22:56:28.486Z"},{"id":"alj-H208268-2024-03-12","awccNumber":"H208268","decisionDate":"2024-03-12","decisionYear":2024,"opinionType":"alj","claimantName":"Michael Brinsa","employerName":"Labor Source, LLC","title":"BRINSA VS. LABOR SOURCE, LLC AWCC# H208268 MARCH 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BRINSA_MICHAEL_H208268_20240312.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRINSA_MICHAEL_H208268_20240312.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H208268 \n \nMICHAEL C. BRINSA (DEC’D), EMPLOYEE      CLAIMANT \n \nLABOR SOURCE, LLC, EMPLOYER               RESPONDENT \n \nWESCO INS. CO./AMTRUST NORTH AMERICA, \nCARRIER/TPA                           RESPONDENT  \n \n \nOPINION FILED 12 MARCH 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe, 6 March 2024, in Little Rock Pulaski County, Arkansas. \n \nThe pro se claimant did not appear. \n \nMr. William C. Frye, Attorney-at-Law of North Little Rock, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 6 March 2024. This case relates to an alleged workplace injury sustained \non 11 November 2022, when the claimant was found deceased in his personal vehicle at a \nwork-site.  A Form AR-2 was also filed on 28 November 2022, denying the claim as not related \nto the course and scope of employment.  A From AR-C was filed on 1 December 2022. \nAccording to correspondence accompanying the filing of the AR-C, a hearing was not being \nrequested at the time of that filing. \n According to the respondents, the decedent’s widow Tevonia Hall sat for a deposition \nin this matter sometime ago.  On 11 October 2023, the claimant’s counsel filed with the \nCommission, a Motion to Withdraw, and that Motion was granted in an Order dated 24 \nOctober 2023. The respondents filed their Motion to Dismiss for Failure to Prosecute on 13 \nNovember 2023, stating that the claimant had not sought a hearing on any matter at \n\nM. BRINSA (DEC’D)- H208268 \n2 \n \ncontroversy in the six (6) months preceding that filing. The claimant did not file an objection \nto the dismissal or appear at the hearing to argue against the respondents’ Motion. The \nrespondents  appeared,  presented  their Motion,  and  offered  supporting  evidence  into  the \nrecord.  As argued by the respondents at the hearing, the file reflects no request for a hearing \non a claim in the relevant time preceding the filing of that Motion.  \n Arkansas Code  Annotated §11-9-702(a)(4)  states  that  a  matter  may  be  dismissed \nwithout  prejudice  after  six months without  a bona  fide request for  a hearing. Commission \nRule 099.13 provides for  a  dismissal  for  failure  to prosecute  an  action upon  application  by \neither  party. Based  on  the  record, the available  evidence, and the  arguments  of  the \nrespondents’ counsel, I find that the respondents’ Motion to Dismiss should be granted and \nthat the matter should be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2841,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H208268 MICHAEL C. BRINSA (DEC’D), EMPLOYEE CLAIMANT LABOR SOURCE, LLC, EMPLOYER RESPONDENT WESCO INS. CO./AMTRUST NORTH AMERICA, CARRIER/TPA RESPONDENT OPINION FILED 12 MARCH 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrat...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:56:07.717Z"},{"id":"alj-H301278-2024-03-12","awccNumber":"H301278","decisionDate":"2024-03-12","decisionYear":2024,"opinionType":"alj","claimantName":"Michelle Burnett","employerName":"South Side Highschool","title":"BURNETT VS. SOUTH SIDE HIGHSCHOOL AWCC# H301278 & H303725 MARCH 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BURNETT_MICHELLE_H301278H303725_20240312.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BURNETT_MICHELLE_H301278H303725_20240312.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H301278 & H303725 \n \nMICHELLE BURNETT, Employee CLAIMANT \n \nSOUTHSIDE HIGH SCHOOL, Employer RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT \n \n \n OPINION FILED MARCH 12, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On December 14, 2023, the above captioned claim came on for a hearing at Fort Smith, \nArkansas.      A  pre-hearing  conference  was  conducted  on August  21,  2023,  and  a  Pre-hearing \nOrder  was  filed  on August  22,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on January \n18, 2023, and February 24, 2023. \n 3. The claimant sustained a compensable injury to her low back, right knee, and right arm \non or about January 18, 2023. \n\nBurnett – H301278 & H303725 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $835.00  for  temporary  total  disability  benefits  and  $626.00  for  permanent  partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  a  new  compensable  injury  to  her  low  back,  right  knee, \nright arm, and coccyx on or about February 24, 2023, or whether current need for treatment is a \ncontinuance of compensable injuries sustained on January 18, 2023. \n 2. Whether Claimant is entitled to medical treatment in the form of an MRI of the lumbar \nspine. \n 3. Whether Claimant sustained a compensable cervical spine injury on January 18, 2023, \nand/or February 24, 2023. \n 4. Whether Claimant is entitled to medical treatment for her cervical spine injury. \n The claimant's contentions are as follows: \n“a. The Claimant contends that she is in need of additional medical \ntreatment  either  due  to  the  continuing  effects  of  her  admittedly \ncompensation  injury  on January  18,  2023  or  the  effects  of  her  job \nrelated fall that occurred on February 24, 2023. \n \nb.  The  Claimant  contends  that  the  respondents  should  be  held \nliable  for  additional  medical  treatment  regarding  the  claimant’s \nback, including but not necessarily limited to an MRI. \n \nc.  The  Claimant  contends  that  his  attorney  is  entitled  to  an \nappropriate attorney’s fee.” \n \n The respondents’ contentions are as follows: \n“Respondents contend they accepted the January 18, 2023 event as \ncompensable  and  have  paid  the  reasonable,  necessary  and  related \nbenefits. The claimed February 24, 2023 event did not occur within \nthe course and scope of claimant’s employment or while claimant \nwas performing employment services.” \n\nBurnett – H301278 & H303725 \n \n-3- \n \n The claimant in this matter is a 52-year-old female who sustained compensable injuries to \nher low back, right knee, and right arm on January 18, 2023, while employed by the respondent. \nThe claimant additionally alleges to have suffered a compensable cervical spine injury during her \nJanuary 18, 2023, incident. On direct examination the claimant gave testimony about her January \n18, 2023, accident and her symptoms directly after as follows: \nQ Ms.  Burnett,  it  has  been  agreed  upon  that  you  had  an \naccident while working for the Fort Smith Public School system on \nJanuary 18, 2023. Will you explain how that accident happened. \n \nA Yes,  I  was – I  had  entered  the  stairwell,  south  hallway, \nFreshman  Center,  and  lost  my  footing  as  I  was  approaching  the \nsecond floor – second, third floor. When I fell, I hit my knees first \nand then fell backwards. \n \n I  called  for  some  assistance  and  no  one  responded,  so  I \nattempted to assist myself and slipped two more steps, two or three \nmore  steps,  and  then  I  used  my  cellular  device  to  call  Rachel \nFoster who eventually came to assist me. \n \nQ And  what  symptoms  did  you  have  after  that  accident \noccurred? \n \nA My knees were hurting. I had pain in my lower back and I \nhad some shoulder pain. \n \nQ What  would  you  consider  to  have  been  your  primary \nsymptoms at that time? What was hurting you worse? \n \nA My knees were, of course, because I had scraped them and \nthen my lower back was giving me – it was pretty intense. It hurt. \nIt was more of a throbbing sensation. And then my upper arm, my \narm  and  my  shoulder,  the  same  type  of  symptoms,  they  were \nthrobbing. \n \nQ Now,  you  say  your  arm  and  your  shoulder.  Tell  us  a  little \nbit  more  about  that.  What  do  you  mean  your  arm  and  your \nshoulder? \n \n\nBurnett – H301278 & H303725 \n \n-4- \nA Well, my shoulder was more of a sore sensation where my \narm  was  throbbing,  so  it  was  the  intensity  was  a little  bit  more  so \ndown my arm. \n \nQ And were you sent to the doctor the same day? \n \nA Yes, sir. \n \nQ And was that Dr. Ian Cheyne? \n \nA Yes, sir. \n \n The  claimant  was  seen  by  Dr.  Ian  Cheyne  at  Mercy  Occupational  Medicine  Clinic  on \nJanuary 18, 2023. Following is a portion of that medical record: \nCHIEF COMPLAINT \nRight side, left side, and back. \n \nPATIENT DESCRIPTION OF ACCIDENT \nMichelle  was  walking  up  steps  when  she  reached  the  railing  and \nlost  her  footing.  She  states  that  she  landed  on  her  knees  and  fell \nback onto the wall. She then tried to call for help and tried to stand \nup  but  ended  up  slipping  two  more  stairs  injuring  both  her  upper \narms. \n \nHISTORY OF PRESENT ILLNESS \nMichelle’s primary problem is pain located in the lower back. She \ndescribes   it   as   throbbing,   Tender.   The   problem   began   on \n1/18/2023.  Michelle  says  that  it  seems  to  be  constant.  She  has \nnoticed that it is made worse by bending, sitting. Her pain level is \n7. \nMichelle’s secondary problem is pain located in the left upper arm. \nShe  describes  it  as  aching.  The  problem  began on  1/18/2023. \nMichelle  says  that  it  seems  to  be  variable – depending  on  the \nactivity level, intermittent. She has noticed that it is made worse by \nlifting. Her pain level is 4. \nMichelle’s tertiary problem is pain located in the right upper arm. \nShe  describes  it  as  soreness,  Tender.  The  problem  began  on \n1/18/2023.  Michelle  says  it  seems  to  be  variable - depending  on \nactivity level, intermittent. She has noticed that it is made worse by \nlifting. Her pain level is 4. \nMichelle’s fourth problem is pain located in the right knee, left \nknee.  She  describes  it  as  pressure,  sharp,  throbbing.  The  problem \nbegan  on  1/18/2023.  Michelle  says  that  it  seems  to  be  variable – \n\nBurnett – H301278 & H303725 \n \n-5- \ndepending  on  the  activity  level.  She  has  noticed  that  it  is  made \nworse by standing. Her pain level is 6. \nMichelle’s  fifth  problem  is  pain  located  in  the  right  hip.  She \ndescribes  it  as  pressure,  sharp,  throbbing.  The  problem  began  on \n1/18/2023.  Michelle  says  that  it  seems  to  be  variable – depending \non  the  activity  level.  She  has  noticed  that  it  is  made  worse  by \nstanding.  Her  pain  level  is  4.  Additional  History:  patient  sore  in \nseveral  areas as above from fall. Most painful areas seem to be in \nthe knees, right hip and low back. She has noticed an abrasion right \nknee and bruising b/l upper extremities. \n \n*** \nDIAGNOSIS \n1. Fall   (on)   (from)   other   stairs   and   steps,   initial   encounter \n(W10.8XXA). \n2. Contusion of right upper arm, initial encounter (S40.021A). \n3. Contusion of left upper arm, initial encounter (S40.022A). \n4. Contusion of right knee, initial encounter (S80.01XA). \n5. Contusion of left knee, initial encounter (S80.02XA). \n6. Contusion of right hip, initial encounter (S70.01XA). \n7.   Contusion   of   lower   back   and   pelvis,   initial   encounter \n(S30.0XXA). \n \nThe claimant was placed on work restrictions of alternate sit/stand/walk as tolerated, prescribed \npain medication, and told to ice and heat areas of most discomfort. \n The claimant returned to see Dr. Ian Cheyne on January 25, 2023. The History of Present \nIllness portion of that medical report does indicate a lessening of pain in various body parts. The \nreport  also  indicates  soreness  in  her  left  neck  during  a  portion discussing  her  left  upper  arm  as \nfollows: \nMichelle’s secondary problem is pain located in the left upper arm. \nShe  describes  it  as  soreness.  The  problem  began  on  1/18/2023. \nMichelle says that it seems to be not present now. She has noticed \nthat it is made worse by lifting. She feels it is improving. Her pain \nlevel is 0. Patient states she has some soreness on her left neck. \n \n That  same  report  from  January  25,  2023,  includes  an  Examination  section,  which  states \nthe following regarding the claimant’s cervical spine examination: \n\nBurnett – H301278 & H303725 \n \n-6- \nCervical Spine: An abrasion is not present. Bruising is not present. \nErythema  is  not  present.  An  open  wound  is  not  present.  Pain  on \nmotion is not present. Pain to palpation is not present. Swelling is \nnot present. Range of motion is normal. \n \nI note that no diagnosis was included in that medical report referencing the claimant’s neck or \ncervical spine. The claimant was given home exercises and told to follow up in one week. \n The claimant returned to see Dr. Ian Cheyne on February 9, 2023. The History of Present \nIllness section of that report states: \nAdditional History: Patient mainly have right low back pain at this \npoint. Everything else seems to have resolved. She states that there \nare times she has to lean against a wall while she is walking to get \nsome relief. Potential pain radiating right groin. \n \nThe  claimant  was  then  referred  to  physical  therapy  three  times  per  week  for  two  weeks.  It \nappears the claimant was scheduled to begin physical therapy on February 22, 2023, but missed \nher appointment.  \n On February 24, 2023, the claimant alleges to have had a second fall while at work again \ninjuring her low back, right knee, and right arm. She also alleges additional injury to her coccyx \nand cervical spine during the second incident/fall. On direct examination the claimant described \nher second incident as follows: \nQ Now,  tell  us  about  your  second  incident  in  February  of \n2023, on February 24\nth\n. What happened? \n \nA We were asked to arrive early for supervision purposes, so \nI went to my office, gathered my items. My daughter was going to \nbring breakfast because I didn’t have time to eat, especially with \nmedication. \n \n So  she  texted  me  and  she  said  she  was  outside.  I  already \nchecked  in.  I  walked  outside  to  retrieve  the  items  and  speaking \nwith  her  about  the  upcoming  Black  History Month  at  Northside.  I \nwas walking backwards, you know, to hurry up and get back inside \nto help with supervision and fell over the curb. \n\nBurnett – H301278 & H303725 \n \n-7- \n \n*** \nQ Okay. So let’s go back to the fall that occurred on February \n24. \n \nA Uh-huh. \n \nQ Do you feel like you sustained any injury in that fall? \n \nA Yes, I do. \n \nQ And what injury or injuries do you believe you sustained? \n \nA Back  injuries,  lower  back  injuries,  especially.  The  January \none was more of my right side, the leg, the arm, and my shoulder \nwas sore. This area was sore (indicating). \n \nQ And  in  the  February  fall,  did  you  fall  from  a  standing \nposition? \n \nA Yes. \n \nQ And what kind of surface did you land on? \n \nA The asphalt and the concrete and the curb that was there. \n \nQ Had you been released from active treatment regarding the \nJanuary injury when the February injury occurred? \n \nA No, sir. \n \n On  February  24,  2023,  the  claimant  was  seen  at  Mercy  Emergency  Department. \nFollowing is an emergency department note from that visit: \nPt reports that she comes to the ed today for a fall that occurred at \nwork. \n \nPt reports that she was walking backwards towards a curb and she \ntripped on the curb causing her to fall backwards and onto her right \nside hitting her right head and the back of her head on the concrete. \nNo visual abnormalities noted to these areas. Pt reports that she is \nhaving pain of constant all over generalized 9/10. \n \n\nBurnett – H301278 & H303725 \n \n-8- \nPt  is  an  a/ox4  with  breathing  even  and  unlabored.  Call  light  in \nplace. Pt denies any needs at this time. Family at bedside. \n \nThe  claimant  was  instructed  to  take  over-the-counter  Tylenol  and  ibuprofen  for  pain  and  to  ice \nand heat alternating every 20 minutes. \n On March 2, 2023, the claimant was again seen by Dr. Ian Cheyne. The record from that \nvisit, in part, states: \nAdditional History: Patient pain now only in the low back. She had \nanother fall on 2/24 at school. She went to the ED, XR coccyx was \nnegative. She has not started PT yet. \n \n On  March  2,  2023,  the  claimant  also  saw  Dr.  Thomas  Cheyne.  I  note  that  Dr.  Thomas \nCheyne  is  a  different  doctor  than  Dr.  Ian  T.  Cheyne.  Following  is  a  portion  of  Dr.  Thomas \nCheyne’s clinic note: \nSubjective: This patient is a 51-year-old who presents with coccyx \npain as well as mild right lateral hip pain. She is an employee with \nFort Smith public school system and had a fall on 2/24/2023. This \nwas in a parking lot and she fell backward over a curb and landed \non her buttocks on the curb. She had had another fall several weeks \nprior to that and is being treated for low back pain and is going to \nbe  starting  physical  therapy  in  the  near  future.  With  regard  to  the \nfirst  fall  she  has  been  having  radiation  of  pain  from  the  right  hip \ninto  the  anterior  medial  aspect  of  the  right  proximal  thigh  which \nmay well be sciatic in nature. She had x-rays after the more recent \nfall of the lumbar spine and pelvis with no fracture being noted. \n \nObjective:  She  is  quite  tender  over  the  coccyx.  She  is  able  to \nslowly bend to touch her lower legs. She walks on her toes and her \nheels with assistance. She has mild decreased sensation in the right \nanterior  medial  thigh  as  compared  to  the  left.  She  has  good \nstrength  and  muscle  tone  in  her  legs  and  her  DTRs  are  1+  and \nequal  bilaterally.  Straight  leg  raise  is  negative  bilaterally.  She  has \nmild  tenderness  over  the  greater  trochanter  of  the  right  femur  but \nhas good range of motion of her hip. \n \nI  have  received  her  lumbar  spine  and  pelvic  films  and  agree  that \nthere is no definite fracture. \n \n\nBurnett – H301278 & H303725 \n \n-9- \nImpression: Coccydynia. \n \nPlan:  She  will  temporarily  stop  her  diclofenac,  we  will  give  her  a \nMedrol Dosepak and then have her resume the diclofenac. She will \nstay  at  light  activity,  we  will  give  her  some  restrictions  to  be \nallowed  to  sit  or  stand  as  needed  and  to  limit  the  amount  of \nwalking  she  does.  She  will  use  heat  therapy  and  avoid  direct \npressure  on  the  coccyx  as  much  as  possible.  If  this  does  not \nimprove within the next 2 to 3 weeks we may consider getting her \ninto the pain clinic for a coccyx injection. \n \n The claimant again failed to go to her physical therapy appointment that was ordered by \nDr. Ian Cheyne on March 6, 2023. However, the claimant did begin physical therapy on March \n15,  2023,  having  had  two  physical  therapy  sessions  before  again  seeing  Dr.  Ian  Cheyne  on \nMarch 16, 2023. The medical report states, “She feels like it is improving slowly.” \n On  April  4,  2023,  the  claimant  was  again  seen  by  Dr.  Thomas  Cheyne.  Following  is  a \nportion of that clinic note: \nThis  patient  returns  for  follow-up  of  her  coccydynia  as  well  as \nright-sided  sciatica.  She  has been taking  her  diclofenac,  going  to \nphysical  therapy  and  using  her  heat  therapy.  She  has  had  a  little \nimprovement   but   continues   to   be   symptomatic.   She   is   not \ninterested  in  having  injections  in  the  coccyx  at  this  point.  I  would \nrecommend  getting  an  MRI  scan  of  the  lumbar  spine  and  we  will \nsee  her  back  after  the  scan.  She  will  otherwise  continue  her \nconservative treatment for now. \n \n The  claimant  continued  with  the  physical  therapy  ordered  by  Dr.  Ian  Cheyne  after  her \nJanuary 18, 2023, fall. The claimant again saw Dr. Ian Cheyne on April 13, 2023. In that medical \nreport  he  stated,  “Patient  is  continuing  to  show  slow  improvement.”  Dr.  Ian  Cheyne  also \nacknowledged  the  claimant  had  been  seeing  Dr.  Thomas  Cheyne  in  orthopedics,  who  had \nordered  a  lumbar  MRI.  I  note  that  the  claimant  has  not  been  provided  an  MRI  of  her  lumbar \nspine by the respondents at the time of the hearing in this matter. \n\nBurnett – H301278 & H303725 \n \n-10- \n On June 2, 2023, the claimant is seen by her primary care physician, Dr. Jeffrey Hamby. \nThe  claimant  was  assessed  by  Dr.  Hamby  for  a  variety  of  reasons  including  cervicalgia.  A \nportion of the History of Present Illness section of that medical report follows: \nPatient states she is having chronic cervical pain with no injury or \ntrauma  and  started  taking  Tylenol  8 hour,  using  Diclofenac  and \nsome Tramadol she has had on hand to help with the pain. Patient \nis  also  using  a Tens  unit  30  minutes a  day  and  seeing  her \nChiropractor  for  this  as  well.  Most  recent  echo cardiogram  was \nreviewed with the patient: no signs of heart failure. Need more of a \nreport on the echo that was performed so will request more records \non  this.  PT  needs  an  MRI  C-Spine  for  chronic  cervical  pain  with \nbilateral radiculopathy down to her shoulders. Explained to patient \nthat  she  does  not  need  want  her  to  go  to  the  chiropractor  until  the \nMRI is back. Recommended patient go to Fort Smith Wellness for \nmassage therapy. Return in 3 weeks. \n \n On June 6, 2023, the claimant underwent an MRI of the cervical spine at Prime Medical \nImaging. Following is a portion of that diagnostic report: \nNo acute abnormality evident at the craniovertebral junction. \n \nMuch  of  the  bony  spinal  canal  in  the  cervical  spine  is  relatively \nnarrow on a developmental basis. \n \nAt the C2-3 level, no significant disc abnormality or canal stenosis. \n \nAt C3-4, there is mild retrolisthesis by 2 or 3 mm. There is central \ndisc  herniation,  moderately  severe  canal  stenosis,  there  may  be \nmild cord compression. Additionally, moderate bilateral foraminal \nspurring/exit foramina stenosis at this level. \n \nAt the C4-5 level, there is mild broad disc bulging. There is a left \nforaminal  disc  herniation  producing  moderately  severe  stenosis  of \nthe  left  exit  foramen.  Mild  narrowing  right  exit  foramen.  Mild \ncentral canal stenosis. \n \nAt  C5-6  level,  there  is  a  moderately  large  right  paracentral  disc \nherniation impressing upon the cord, producing moderately severe \ncanal stenosis. \n \n\nBurnett – H301278 & H303725 \n \n-11- \nAt  C6-7  level,  there  is  a  small  to  moderate  central  disc  herniation \nproducing at least mild canal stenosis. \n \nFacet arthrosis is present, most severe on the left at C4-5 level. \n \nIMPRESSION: \nMul  multilevel  disc  degenerative  disease  as  outlined  in  greater \ndetail  above.  Moderately  severe  canal  stenosis  results  at  both  the \nC3-4  and  C5-6  levels.  Significant  findings  at  additional  levels  as \ndescribed. \n \n On  August  15,  2023,  the  claimant  is  seen  at  WR  Family  Clinic  Fayetteville  as  a  new \npatient. The record is unclear as to whom the medical provider for the claimant’s visit is at that \ntime. Following is a portion of that record: \nHistory of Present Illness \nPt  referred  by  PCP  for  cervical  spine  evaluation.  She  reports \nprogressive  neck  pain  after  a  fall  at  work  in  January  of  this  year. \nShe describes pain through the right side her neck which extends to \nthe  right  shoulder  but  does  not  typically  radiate  down  the  arms. \nShe  does  note  bilateral  hand  numbness  which  is  intermittent.  She \nalso  reports  worsening  balance  in  the  past  year.  She  has  tried \ntreatment with PT but denies any relief with this. \n \n*** \nAssessment \nAssessed \n1. Cervical spondylosis with myelopathy (721.1) (M47.12) \n2. Cervical stenosis of spine (723.0) (M48.02) \n3. Cervical spinal cord compression (336.9) (G95.20) \n \n*** \nDiscussion/Summary \nPt  with  R>L  neck  pain  associated  with  worsening  balance  in  the \npast  year  as  described  above.  MRI  shows  severe  canal  stenosis  at \nC3-4 d/t large disc-osteophyte complex. This narrows the AP canal \ndiameter  to  6mm  with  compression  and  deformation  of  the  spinal \ncord. There is also at least moderate to severe canal stenosis at C5-\n6 and C6-7. Exam reveals BUE hyperreflexia concerning for early \nmyelopathy.   I   explained   the   findings   and   treatment   options, \ndiscussed that surgery is indicated to decompress the spinal cord as \nthis  degree  of  stenosis  carries  an  increased  risk  of  spinal  cord \n\nBurnett – H301278 & H303725 \n \n-12- \ninjury  if  left  untreated.  Will  arrange  for  follow  up  in  clinic  with \nsurgeon as soon as possible. Pt agrees with plan. \n \n The claimant sustained admittedly compensable injuries to her low back, right knee, and \nright  arm  when  she  fell  on  January  18,  2023.  The  claimant  also  alleges  a  compensable  cervical \nspine  injury  in  that  same  January  18,  2023,  fall.  The  claimant  again  fell  on  February  24,  2023, \nand  alleges  compensable  injuries  to  her  low  back,  right  knee,  right  arm,  coccyx,  and  cervical \nspine from that second fall. The claimant’s allegations of a compensable cervical spine injury \nthat  she  alleges  to  have  occurred  on  January  18,  2023,  and/or  February  24,  2023,  will  be \nconsidered following consideration of her allegations of compensable low back, right knee, right \narm,  and  coccyx  injuries  on  February  24,  2023.  At  the  time  the  claimant  alleges  those  injuries \nshe was backing up and fell, apparently striking the back right side of her body. The emergency \ndepartment record from February 24, 2023, states, “...fall backwards and onto her right side, \nhitting  her  right  head  and  the  back  of  her  head  on  concrete.  No  visual  abnormalities  noted  to \nthese areas. Pt reports that she is having pain of constant all over generalized 9/10.” A coccyx x-\nray  was  done  by  Dr.  Ian  Cheyne  on  March  2,  2023,  which  was  negative.  That  same  day,  the \nclaimant  is  also  seen  by  Dr.  Thomas  Cheyne,  who  reports  tenderness  over  the  coccyx,  but  also \nreviews lumbar spine and pelvic x-rays and agrees that there is no definite fracture.  \nThe claimant has the burden of proving her allegations of compensable injuries to her low \nback, right knee, right arm and coccyx from her February 24, 2023, fall. The claimant’s situation \nis somewhat unusual in that she was still treating for her admittedly compensable low back, right \nknee,  and  right  shoulder  injuries  from  her  first  fall  on  January  18,  2023.  However,  I  find  no \nobjective medical evidence of a new or different injury to her low back, right knee, or right arm \nafter  her  February  24,  2023,  fall.  Nor  do  I  find  any  objective  findings  of  injury  to  her  coccyx. \n\nBurnett – H301278 & H303725 \n \n-13- \nThere  was  tenderness  reported  but  no  bruising  was  reported,  or  derangement  from  x-ray.  The \nclaimant is unable to prove by a preponderance of the evidence that she sustained compensable \ninjuries to her low back, right knee, right arm, or coccyx in her fall on February 24, 2023. \n The claimant did sustain admittedly compensable injuries to her low back, right knee, and \nright arm on January 18, 2023. Dr. Thomas Cheyne has recommended an MRI of the claimant’s \nlumbar spine. In review of the claimant’s medical records including that of Dr. Ian Cheyne and \nDr.  Thomas  Cheyne,  I  do  believe  the  recommended  MRI  to  be  reasonable,  necessary  medical \ntreatment for the claimant’s January 18, 2023, compensable back injury,  as  the  claimant  had \nresponded to conservative treatment in an inordinately slow fashion.  \n The  claimant  also  claims  compensable  cervical  spine  injury  or  injuries  on  January  18, \n2023,  and/or  February  24,  2023. I  have  previously  included portions  of  an  MRI  report of  the \nclaimant’s cervical spine performed on June 6, 2023, after both of her January and February of \n2023  falls.  The  claimant  admits  to  having preexisting  cervical  spine  difficulties  and  underwent \nan  MRI  of  the  cervical  spine on September  9,  2022.  Following  is  a  portion  of  that  diagnostic \nreport: \nFINDINGS: \nThe  cervical  tonsils  in  appropriate  location  cervical  cord  grossly \nnormal signal. \n \nC2-C3: No significant disc bulge. \n \nC3-4:   Broad-based   central   disc   bulge   and   moderate   spurring \nindenting subarachnoid space to 8.3 mm. \n \nC4-5: No significant disc bulge. Facet arthropathy left greater than \nright. Minimal foraminal spurring. \n \nC5-6:  Central,  slightly  right  paracentral  disc  protrusion  indenting \nsubarachnoid space and cord. Narrowing of subarachnoid space to \n7 mm. Mild foraminal spurring. \n\nBurnett – H301278 & H303725 \n \n-14- \n \nC6-7:    Broad-based     central    disc    bulge     mildly    indenting \nsubarachnoid space and cord. Narrowing of subarachnoid space 7.2 \nmm. \n \nC7-T1: No significant disk bulge. \n \nT2-T3: Small central protrusion. \n \nIMPRESSION: \n1. C5-C6   central   right   paracentral   disc   protrusion   indenting \nsubarachnoid space and cord. \nCausing central canal stenosis. \n2.  Broad-based  central  disc  bulge  spurring  C3-4  with  mild  canal \nstenosis.  Prominent  foraminal  spurs.  Three  broad-based  central \ndisc bulge C6-C7: Canal stenosis. \n4. T2-T3 small central disc protrusion. \n \n Medical  records  introduced  into  evidence  clearly  show  significant  pain  and  problems \nrelated to claimant’s cervical spine prior to either of her 2023 falls. The claimant does not \nmention cervical or neck difficulties in her form AR-N signed by her on January 18, 2023. Nor \ndoes  the  claimant  mention  cervical  or  neck  difficulties  in  an  AR-C  signed  by  the  claimant  on \nJune 8, 2023, regarding her second fall. I will note that the claimant’s attorney does assert a \nclaim for cervical injury in a letter dated August 30, 2023. The claimant’s medical records after \nher January  18,  2023, fall  do  begin  on  January  25,  2023,  in  a  record  from  Dr.  Ian  Cheyne to \nconsistently state, “Patient states she has some soreness on her left neck.” However, that appears \nto  be  the  extent  of  her  cervical  or  neck  complaints  until  she  sees  Dr.  Hamby  on  June  2,  2023, \nwhen his report states, “Patient states she is having chronic cervical pain but no injury or trauma \nand started taking Tylenol 8 hour, using Diclofenac and some Tramadol she has had on hand to \nhelp with pain. Patient is also using a Tens unit 30 minutes a day and seeing her Chiropractor for \nthis as well.... Pt needs an MRI C-Spine  for  chronic  cervical  pain  with  bilateral  radiculopathy \ndown  to  her shoulders.”  Dr.  Hamby  does  at  that  time  order  an  MRI  of the  cervical  spine. \n\nBurnett – H301278 & H303725 \n \n-15- \nHowever,  prior  to  that  visit  with  Dr.  Hamby  it  appears  most  of  the  claimant’s  difficulties \nprimarily were located in her lower back.  \n In review of the claimant’s September 9, 2022, cervical spine MRI prior to her two falls \nand  the  June  6,  2023,  cervical  spine  MRI,  they  appear  to  be  essentially  the  same.  The \nImpressions section of the June 6, 2023, MRI states, “Mul multilevel disc degenerative disease \nas outlined in greater detail above.” Any change that might exist appears to be from progression \nof the disc degenerative disease and not from either of the claimant’s falls. The claimant is \nunable  to  prove  that  she  sustained  a  compensable  cervical  spine  injury  from  either  of  her  two \nfalls. Therefore, the claimant is also unable to prove her entitlement to medical treatment for her \ncervical spine. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  21,  2023,  and  contained  in  a  Pre-hearing  Order  filed August  22,  2023,  are  hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \ncompensable injuries to her low back, right knee, right arm, and coccyx on or about February 24, \n2023. \n\nBurnett – H301278 & H303725 \n \n-16- \n3. The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nmedical  treatment  for  her  compensable  low  back  injury  of  January  18,  2023,  in  the  form  of  an \nMRI of the lumbar spine. \n 4. The claimant has failed to prove by a preponderance of the evidence that she sustained \na compensable cervical spine injury on January 18, 2023, and/or February 24, 2023. \n 5. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment for her cervical spine. \n ORDER \nThe  respondents  shall  pay  the  costs  associated  with  reasonable,  necessary  medical \ntreatment for the claimant’s compensable low back injury including an MRI of her lumbar spine \nas ordered by Dr. Thomas Cheyne. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED.   \n \n                                ____________________________                                               \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":30868,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H301278 & H303725 MICHELLE BURNETT, Employee CLAIMANT SOUTHSIDE HIGH SCHOOL, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT OPINION FILED MARCH 12, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian Cou...","outcome":"denied","outcomeKeywords":["denied:3"],"injuryKeywords":["back","knee","lumbar","cervical","shoulder","hip","neck","fracture"],"fetchedAt":"2026-05-19T22:56:09.797Z"},{"id":"alj-H104644-2024-03-12","awccNumber":"H104644","decisionDate":"2024-03-12","decisionYear":2024,"opinionType":"alj","claimantName":"Ruth Hatcher","employerName":"Walmart Associates","title":"HATCHER VS. WALMART ASSOCIATES AWCC# H104644 MARCH 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HATCHER_RUTH_H104644_20240312.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HATCHER_RUTH_H104644_20240312.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H104644 \n \nRUTH HATCHER, Employee      CLAIMANT \n \nWALMART ASSOCIATES, Employer     RESPONDENT \n \nWALMART CLAIMS SERVICES, Carrier/TPA   RESPONDENT \n \n \n OPINION FILED MARCH 12, 2024  \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in Springdale, \nWashington County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing \n \nRespondent represented by RICK BEHRING, JR., Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \nThis case comes on for review following a hearing on respondents’ Motion to Dismiss. \n On April 19, 2023, the claimant filed an AR-C requesting various compensation benefits, \nalleging injuries to her neck. No further action was taken on this claim. On October 23, 2023, the \nrespondents  filed  a  Motion  to  Dismiss  requesting  that  this  claim  be  dismissed  for  lack  of \nprosecution. A hearing was scheduled for January 16, 2024, and notice of the hearing was sent to \nthe claimant at her last known address by certified mail on December 4, 2023. That certified mail \nnotice was returned to the Commission by the Post Office with a notation “Return to Sender. \nVacant. Unable to Forward.” Due to inclement weather, the hearing was rescheduled to February \n20,  2024,  and  notice  of  the  rescheduled  hearing  was  sent  to  the  claimant  at  her  last  known \naddress  by  certified  mail  on  January  18,  2024.  Tracking  information  from  the  United  States \nPostal Service indicate that certified mail was picked up by an individual on February 7, 2024.  \n\nHatcher – H104644 \n \n The  claimant  did  not  attend  the  hearing.  However,  she  did  reach  out  to  my  office  by \nphone at  8:35  on  the  morning  of  the  hearing to  inform  the  Commission  that  she  would  not  be \nable to attend as she had only just recently learned that the hearing was scheduled for that day, \nFebruary  20,  2024.  The  claimant  indicated  she  did  want  to  go  forward  with  her  claim  and  that \nshe  had  unpaid  medical  bills  and  had  been  off  work  for  over  a  year. She  will  complete  the \ndiscovery previously sent to her by the respondents and will then request a hearing. \n From  a  review  of  the  record  as  a  whole,  to  include  all  matters  properly  before  the \nCommission,  and  having  had  an  opportunity  to  hear  the  statements  of  the  claimant  and  the \nrespondents, I find that the respondents’ Motion to Dismiss is denied at this time.  \nORDER \n Pursuant  to  the  above  statement  of  the  case,  I  hereby  deny  respondents’  Motion  to \nDismiss at this time. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED.    \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":3003,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H104644 RUTH HATCHER, Employee CLAIMANT WALMART ASSOCIATES, Employer RESPONDENT WALMART CLAIMS SERVICES, Carrier/TPA RESPONDENT OPINION FILED MARCH 12, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Cl...","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:1"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T22:56:11.856Z"},{"id":"alj-H009892-2024-03-12","awccNumber":"H009892","decisionDate":"2024-03-12","decisionYear":2024,"opinionType":"alj","claimantName":"Joanie Owens","employerName":"Kroger Ltd. Partnership I","title":"OWENS VS. KROGER LTD. PARTNERSHIP I AWCC# H009892 MARCH 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/OWENS_JOANIE_H009892_20240312.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OWENS_JOANIE_H009892_20240312.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H009892 \n \nJOANIE L. OWENS, EMPLOYEE       CLAIMANT \n \nKROGER LTD. PARTNERSHIP I, EMPLOYER              RESPONDENT \n \nKROGER LTD. PARTNERSHIP I/SEDGEWICK, \nCARRIER/TPA                           RESPONDENT  \n \n \nOPINION FILED 12 MARCH 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law \nJudge JayO. Howe, 6 March 2024, in Little Rock, Pulaski County, Arkansas. \n \nThe pro se claimant did not appear. \n \nMs. Karen H. McKinney, Attorney-at-Law of Little Rock, appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 6 March 2024.  This case relates to a workplace injury sustained on or \nabout 20 November 2020, with a Form AR-C filed on 3 December 2020 and a First Report of \nInjury filed the following day.  A Form AR-2 accepting the claim was also filed on 4 December \n2020.  \n According to the respondents, benefits were paid accordingly through the life of this \nclaim.  The claimant’s attorney filed a Motion to Withdraw on 21 February 2023, and the Full \nCommission granted that Motion in an Order dated 3 March 2023.  \n The respondents filed their Motion to Dismiss for Failure to Prosecute on 4 January \n2024, stating that the claimant had not sought a hearing on any matter at controversy in the \nsix (6) months preceding that filing.  The claimant did not file an objection to the dismissal \nor  appear  at  the  hearing  to  argue  against  the  respondents’ Motion. The  respondents \n\nJ. OWENS- H009892 \n2 \n \nappeared, presented their Motion, and offered supporting evidence into the record.  As argued \nby the respondents at the hearing, the file reflects no request for a hearing on a claim in the \nrelevant time preceding the filing of that motion.  \n Arkansas Code  Annotated §11-9-702(a)(4)  states  that  a  matter  may  be  dismissed \nwithout prejudice after six (6) months without a bona fide request for a hearing. Commission \nRule 099.13 provides for  a  dismissal  for  failure  to prosecute  an  action upon  application  by \neither  party. Based  on  the  record, the available  evidence, and the  arguments  of  the \nrespondents’ counsel, I find that the respondents’ Motion to Dismiss should be granted and \nthat the matter should be dismissed without prejudice. \nORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2592,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H009892 JOANIE L. OWENS, EMPLOYEE CLAIMANT KROGER LTD. PARTNERSHIP I, EMPLOYER RESPONDENT KROGER LTD. PARTNERSHIP I/SEDGEWICK, CARRIER/TPA RESPONDENT OPINION FILED 12 MARCH 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:56:13.918Z"},{"id":"alj-H300349-2024-03-11","awccNumber":"H300349","decisionDate":"2024-03-11","decisionYear":2024,"opinionType":"alj","claimantName":"Kathleen Oviedo","employerName":"Safeway Van Lines, LLC","title":"OVIEDO VS. SAFEWAY VAN LINES, LLC AWCC# H300349 MARCH 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/OVIEDO_KATHLEEN_H300349_20240311.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OVIEDO_KATHLEEN_H300349_20240311.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H300349 \n \nKATHLEEN R. OVIEDO, \nEMPLOYEE                                                                                                              CLAIMANT \n \nSAFEWAY VAN LINES, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nWESCO INS. CO./ \nAMTRUST NORTH AMERICA \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE  \nFILED MARCH 12, 2024 \n \nHearing conducted on Friday, March 8, 2024, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Hot Springs, \nGarland County, Arkansas. \n \nThe claimant, Ms. Kathleen R. Oviedo, pro se, of Hot Springs, Garland County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable William C. Frye, Frye Law Firm, North \nLittle Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n  A  hearing was  conducted  on Friday,  March  8,  2024, to  determine  whether  this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Replacement). \n The respondents  filed  a letter motion to  dismiss (MTD) without  prejudice with  the \nCommission on December 21, 2023, requesting this claim be dismissed without prejudice for lack \nof  prosecution. Consistent  with  the  applicable  Arkansas  law,  the Commission mailed  a  copy  of \nboth the respondents’ motion to dismiss and the subject hearing notice via the United States Postal \nService (USPS), Certified Mail, Return Receipt Requested by letter dated January 2, 2024, to her \nlast known address of record with the Commission. Thereafter, the claimant failed and/or refused \n\nKathleen R. Oviedo, AWCC No. H300349 \n \n2 \n \nto respond in any way to either the Commission or the respondents; and she failed and/or refused \nto appear at the subject hearing. The claimant never objected in any way to the respondents’ MTD. \n The  record  herein  consists  of the  hearing  transcript  and  any  and  all exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the parties’ joint \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing and contained in the record conclusively demonstrates the \nclaimant  has  both  failed  and/or  refused  to  prosecute  her  claim,  nor  has  she  requested  a  hearing \nwithin the last six (6) months. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After the Commission mailed due and legal notice of the respondents’ letter MTD \n                  filed December 21, 2023, to the claimant’s last known address of record with the \n                  Commission, the claimant failed and/or refused to object to the subject MTD; to \n                  request a hearing; or to respond to the motion in any way.  \n \n            3.         The claimant failed and/or refused to appear at \n                  the subject hearing and, therefore, has waived her right to a hearing on the MTD. \n \n      4.         The claimant has failed to request a hearing on the merits of her claim within the \n                   last six (6) months. \n \n 5. The respondents’ letter MTD without prejudice filed with the \n                  Commission on December 21, 2023, should be and hereby is GRANTED. \n\nKathleen R. Oviedo, AWCC No. H300349 \n \n3 \n \n      \n      6.         Therefore, this claim is dismissed without prejudice to its refiling pursuant to \n                  the deadlines prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission \n                  Rule 099.13. \n \n This opinion and order shall not be construed to  prohibit the claimant, her attorney, any \nattorney she may retain in the future, or anyone acting legally and on her behalf from refiling this \nclaim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The respondents shall pay the court reporter’s invoice within ten (10) days of their receipt \nthereof. \n IT IS SO ORDERED.                                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                  Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5351,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300349 KATHLEEN R. OVIEDO, EMPLOYEE CLAIMANT SAFEWAY VAN LINES, LLC, EMPLOYER RESPONDENT WESCO INS. CO./ AMTRUST NORTH AMERICA INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED MARCH 12, 2024 Hearing conducted on Friday,...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:56:05.593Z"},{"id":"alj-H302793-2024-03-08","awccNumber":"H302793","decisionDate":"2024-03-08","decisionYear":2024,"opinionType":"alj","claimantName":"Keith Sorrells","employerName":"Lonoke County Judge","title":"SORRELLS VS. LONOKE COUNTY JUDGE AWCC# H302793 & H302794 MARCH 7, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Sorrells_Keith_H302793_20240308.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Sorrells_Keith_H302793_20240308.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NOS. H302793 & H302794 \n \n \nKEITH D. SORRELLS, EMPLOYEE CLAIMANT \n \nLONOKE COUNTY JUDGE, \n SELF-INSURED EMPLOYER RESPONDENT \n \nASSOC. ARK. COUNTIES RISK MGMT. \n SVCS., THIRD-PARTY ADMIN. RESPONDENT \n \n \nOPINION FILED MARCH 8, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on March 7,  2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented  by  Ms. Carol  Lockard  Worley,  Attorney  at  Law, Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This matter  comes  before  the  Commission  on the Motion  to Dismiss  by \nRespondents.  A hearing on the motion was conducted on March 7, 2024, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records is pro  se,  failed  to  appear  at  the  hearing.   Admitted  into \nevidence  was  Respondents’ Exhibit  1,  pleadings,  correspondence  and  forms \nrelated  to  this  claim,  consisting  of one  index  page  and ten numbered pages \nthereafter.  Also, in order to address adequately this matter under Ark. Code Ann. \n§ 11-9-705(a)(1)  (Repl.  2012)(Commission  must “conduct the hearing  .  .  . in  a \nmanner  which  best  ascertains  the  rights  of  the  parties”), and  without  objection, I \nhave  blue-backed  to  the  record documents from the Commission’s file on  the \n\nSORRELLS – H302793 & H302794 \n \n2 \n \nclaim,  consisting  of two pages.  In  accordance  with Sapp  v.  Tyson  Foods,  Inc., \n2010 Ark. App. 517, ___ S.W.3d ___, these documents have been served on the \nparties in conjunction with this opinion. \n The record reflects the following procedural history: \n H302793.   Per  the  First Report  of  Injury  or  Illness  filed on May 3,  2023, \nClaimant  purportedly suffered an injury to his  lower  back at  work  on March  23, \n2023, when he was removing a large storage bin from a shelf.  According to the \nForm AR-2 that was filed on May 4, 2023, Respondents accepted the claim as a \nmedical-only one and paid benefits pursuant thereto. \n On May 1, 2023, Claimant filed a Form AR-C.  Therein, he alleged that he \nwas entitled  to medical benefits  as  a  result  of the compensable  injury that  he \nallegedly sustained.  No hearing request accompanied this filing. \n H302794.   Per  the  First Report  of  Injury  or  Illness  filed on May 3,  2023, \nClaimant purportedly suffered another injury to his lower back at work on April 24, \n2023, when he was escorting an inmate who became disruptive and attempted to \npull  away  from  him.  According  to the  Form  AR-2 that  was also filed on May 3, \n2023, Respondents accepted the  claim as  a  medical-only  one and paid benefits \npursuant thereto. \n On May 1, 2023, Claimant filed a Form AR-C.  Therein, he alleged that he \nwas entitled  to medical treatment.  As  before,  no  hearing  request  accompanied \nthis filing. \n\nSORRELLS – H302793 & H302794 \n \n3 \n \n The  record  reflects  that nothing  further  took  place  on either claim until \nJanuary 9,  2024.   On that  date, Respondents filed  the  instant  motion, asking  for \ndismissal  of the claims under  AWCC  R.  099.13  and  Ark.  Code  Ann. § 11-9-702 \n(Repl.  2012).    My  office wrote  Claimant on January 12,  2024,  asking  for  a \nresponse  to  the  motion within  20  days.   The  letter  was  sent  by first  class and \ncertified mail to the Jacksonville address of Claimant listed in the files and on his \nForms AR-C.  Someone  with  an  illegible  signature  claimed the certified  letter on \nJanuary 18,  2024, and the  first-class  letter  was  not  returned.   Regardless,  no \nresponse from Claimant to the motion was forthcoming.  On February 2, 2024, a \nhearing on the Motion to Dismiss was scheduled for March 7, 2024, at 11:00 a.m. \nat the Commission in Little Rock.  The notice was sent to Claimant via first-class \nand certified  mail to  the  same  address as  before.  In  this  instance,  the certified \nletter was  claimed  by  someone  with  an  illegible  signature  on  February  3,  2024; \nand  as was  the  case  previously, the first-class  letter was not returned  to  the \nCommission. \n The hearing on the Motion to Dismiss proceeded as scheduled on March 7, \n2024.  Again, Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under the  aforementioned \nauthorities. \n\nSORRELLS – H302793 & H302794 \n \n4 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and other \nmatters  properly  before  the  Commission,  the  following Findings  of Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation  Commission  has  jurisdiction \nover this matter. \n2. The  parties were  provided  reasonable notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis two claims under AWCC R. 099.13. \n4. The Motion  to Dismiss  is hereby  granted;  these two claims for \nadditional  benefits are hereby dismissed without  prejudice under \nAWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n\nSORRELLS – H302793 & H302794 \n \n5 \n \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaims—by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant  has  failed  to  pursue his two claims because he  has  taken  no  further \naction  in  pursuit  of them (including  appearing  at  the March  7,  2024, hearing  to \nargue  against its dismissal) since the filing  of  his  Forms AR-C  on May  1,  2023.  \nThus, the evidence preponderates that dismissal of both is warranted under Rule \n13.  Because of this finding, it is unnecessary to address the application of § 11-9-\n702. \n That leaves the question of whether the dismissal of the claims should be \nwith  or  without  prejudice.    The Commission  possesses  the  authority  to dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood Preserving Co., 23  Ark. App. \n137,  744  S.W.2d  402  (1988).   The Commission and  the appellate courts  have \nexpressed  a  preference for  dismissals without prejudice.  See Professional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249, 629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nSORRELLS – H302793 & H302794 \n \n6 \n \nfind  that  the dismissal  of  these claims should  be and  hereby is entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the Findings  of Fact  and Conclusions  of Law set  forth \nabove,  these two claims for  additional  benefits are hereby  dismissed without \nprejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7957,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NOS. H302793 & H302794 KEITH D. SORRELLS, EMPLOYEE CLAIMANT LONOKE COUNTY JUDGE, SELF-INSURED EMPLOYER RESPONDENT ASSOC. ARK. COUNTIES RISK MGMT. SVCS., THIRD-PARTY ADMIN. RESPONDENT OPINION FILED MARCH 8, 2024 Hearing before Administrative Law Judge O. Milton Fi...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:56:03.514Z"},{"id":"full_commission-H107962-2024-03-07","awccNumber":"H107962","decisionDate":"2024-03-07","decisionYear":2024,"opinionType":"full_commission","claimantName":"Charles Axsom","employerName":"Baptist Health","title":"AXSOM VS. BAPTIST HEALTH AWCC# H107962 MARCH 7, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Axsom_Charles_H107962_20240307.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Axsom_Charles_H107962_20240307.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H107962 \n \nCHARLES W. AXSOM, EMPLOYEE  CLAIMANT \n \nBAPTIST HEALTH, EMPLOYER RESPONDENT \n \nCLAIMS ADMINISTRATIVE SERVICES,  RESPONDENT \nINSURANCE CARRIER/TPA  \n \n \n \nOPINION FILED MARCH 7, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed August 29, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim.  \n \n2. That an employer/employee relationship existed on September 4, \n2021, the date  that the claimant suffered a compensable injury to \nhis right knee. \n \n\nAXSOM - H107962  2\n  \n \n \n3. Respondents have accepted and are paying a ten percent (10%) \npermanent partial impairment to the claimant.  \n \n4. The claimant’s prior attorney, Mr. Andy L. Caldwell, has filed a lien \nin this matter.  \n \n5. That the claimant has proven, by a preponderance of the credible \nevidence, that the additional medical treatment, specifically the \ntreatment for complex regional pain syndrome is both causally \nrelated and reasonably necessary for the treatment of the work-\nrelated right knee injury.  \n \n6. If not already paid, the respondents are ordered to pay for the \ncost of the transcript forthwith.  \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed.  Specifically, we find from a preponderance \nof the evidence that the findings made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n\nAXSOM - H107962  3\n  \n \n \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(a)(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion.  After my de novo \nreview of the file, I find that the claimant has failed to prove by a \npreponderance of the credible evidence that the medical treatment \nassociated with complex regional pain syndrome is both causally related \nand reasonably necessary for the treatment of the compensable work-\nrelated right knee injury.  \n The claimant suffered an admittedly compensable injury to his right \nknee on September 4, 2021, when the running board to a work van \n\nAXSOM - H107962  4\n  \n \n \ncollapsed beneath him.  (Hrng. Tr, Pp. 6-7).  Dr. James Tucker performed a \ndiagnostic arthroscopy with medial meniscal repair and partial lateral \nmeniscectomy on November 1, 2021.  (Cl. Ex. 1, P. 28).  The claimant \nasserts that his symptoms changed after surgery, leading to right foot, toe, \nand ankle pain.  (Hrng. Tr, P. 16).  \nAt an appointment with Dr. Tucker on November 17, 2021, the \nclaimant advised Dr. Tucker that earlier that week he twisted his knee and \nfelt a pop when his crutches got twisted up with a dog, and an MRI dated \nNovember 17, 2021, showed findings suspicious of a re-tear involving the \ninferior meniscal surface of the posterior horn.  (Cl. Ex. 1, Pp. 31-33)  \nThe claimant returned to Dr. Tucker on November 23, 2021, for a \nfollow-up after a fall, and Dr. Tucker’s report confirmed a showing of a re-\ntear of his medial and lateral meniscus with a sprain of his MCL.  (Cl. Ex. 1, \nPp. 34-37).  Dr. Tucker performed a second surgery on the claimant’s knee \non December 6, 2021.  (Cl. Ex. 1, Pp. 38-41).  \nThe claimant continued to complain of ongoing pain, and on \nFebruary 8, 2022, reported increasing pain down the L4 \ndermatome/saphenous nerve distribution when something pressed against \nhis posterior thigh.  (Cl. Ex. 1, Pp. 55-58).  Dr. Tucker ordered an EMG \nnerve study.  Id.  \n\nAXSOM - H107962  5\n  \n \n \nDr. Rodrigo Cayme performed a nerve study on February 21, 2022, \nwhich resulted in a report of “1. Normal electrodiagnostic study.  2. There is \nno electrodiagnostic evidence of a focal nerve entrapment, generalized \nperipheral neuropathy, or right lumbar radiculopathy.”  (Cl. Ex. 1, P. 63). \nThis study was later revised to include an electrodiagnostic finding of right \naxonal saphenous neuropathy, but no evidence of CRPS.  (Cl. Ex. 1, P. \n65).  \nOn March 16, 2022, Dr. Tucker reported that the EMG nerve \nconduction study showed no signs of nerve compression and was felt to be \nnormal, but that the claimant continued to have dysesthesias along the \nsaphenous nerve distribution which was aggravated by sitting in a chair. \n(Cl. Ex. 1, Pp. 67-71). \nThe claimant was examined by Dr. Stephen Paulus on May 31, \n2022, who opined that the claimant’s presentation had changed over the \nlast month, with pain now extending into the dorsum of his foot with a new \nonset of vasomotor and sudomotor changes.  He believed that the claimant \nwas developing Type 2 Chronic Regional Pain Syndrome.  (Cl. Ex. 1, Pp. \n98-102).  \nDr. Tucker issued a clinic note of the same date which provided the \nclaimant continued to suffer from saphenous neuropathy and the MRI of his \n\nAXSOM - H107962  6\n  \n \n \nthigh showed no signs of a lesion which would increase his saphenous \nnerve symptoms with sitting.  (Cl. Ex. 1, Pp. 103-106). \n Dr. Paulus referred the claimant to Dr. Brent Walker for possible \nCRPS, and upon examination, Dr. Walker noted that the claimant’s right \nknee was reddened and swollen and there was temperature asymmetry. \n(Cl. Ex. 1, Pp. 107-112).  Dr. Walker ordered a three-phase bone scan, \nwhich revealed “relatively decreased activity on all three phases within the \nright foot, which may be related to disuse of the right leg.”  (Cl. Ex. 1, P. \n113).  The claimant underwent a series of lumbar sympathetic nerve blocks \nfor the treatment of his symptoms, but they offered no relief.  (Hrng. Tr, P. \n19; See Cl. Ex. 1, Pp. 115, 117, 119, 128, 130, 132, 141, 143, 145; Resp. \nEx. 1, P. 29).  Dr. Walker opined that the claimant may be a good candidate \nfor the UAMS CRPS program.  (Cl. Ex. 1, Pp. 147-154).  \nOn November 17, 2022, Dr. Ethan Schock assigned a 12% whole \nperson impairment rating (30% lower extremity permanent partial \nimpairment).  (Cl. 1, P. 168).  \nThe claimant ultimately underwent an evaluation on April 25, 2023 by \nDr. Cale White and Dr. Johnathan Goree who diagnosed the claimant with \nCRPS of the claimant’s foot per Budapest Criteria.  (Cl. Ex. 1, Pp. 190-195).  \nDr. Carlos Roman performed an independent medical examination \non January 30, 2023, and determined: \n\nAXSOM - H107962  7\n  \n \n \nIt is my assessment per Budapest \nCriteria, he does not have \nComplex Regional Pain \nSyndrome...By Budapest Criteria, \nthe tone, color and temperature \nwas not compatible with complex \nregional pain syndrome of the right \nlower extremity. This bone scan, \nagain, indicates the foot, not the \nknee, again an atypical and \nunusual pattern, but not correlative \nwith complex regional pain \nsyndrome and the location of the \npooling was not relative to the \nknee where the pain is. The bone \nscan does not in any way conclude \ncomplex regional pain syndrome. It \nis quite contrary.  Obviously the \nradiologist reading the scan would \nnot be aware if it was a knee or a \nfoot, but the bone scan does not \nindicate complex regional pain \nsyndrome.  (Resp. Ex. 1, Pp. 26-\n30). \n \nThere was no mention of chronic regional pain syndrome (CRPS) \nuntil May 31 of 2022, which was ten (10) months after the claimant’s \naccident.  (Hrng. Tr, Pp. 16-17).  \nThe respondents have accepted and are paying a ten percent (whole \nbody) impairment rating.  An administrative law judge determined that the \nclaimant met his burden of proving that he is entitled to additional medical \ntreatment for CRPS related to his September 2021 compensable injury. \nRespondents appeal. \n\nAXSOM - H107962  8\n  \n \n \nArkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires \nan employer to provide an employee with medical and surgical treatment \n\"as may be reasonably necessary in connection with the injury received by \nthe employee.\"  The claimant has the burden of proving by a \npreponderance of the evidence that the additional treatment is reasonable \nand necessary. Nichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 \nS.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy and the respondent is only responsible for treatment \ncausally related to the compensable injury.  Walker v. United Cerebral \nPalsy of Ark., 2013 Ark. App. 153, 426 S.W.3d 539 (2013).  Treatments to \nreduce or alleviate symptoms resulting from the compensable injury to \nmaintain the level of healing achieved; or to prevent further deterioration of \nthe damage produced by the compensable injury are considered \nreasonable medical services.  Foster v. Kann Enterprises, 2009 Ark. App. \n746, 350 S.W.2d 796 (2009). \n\nAXSOM - H107962  9\n  \n \n \nThe Commission has authority to accept or reject medical opinion \nand to determine its medical soundness and probative force.  Gant v. First \nStep, Inc., 2023 Ark. App. 393, 675 S.W.3d 445 (2023).  Furthermore, it is \nthe Commission's duty to use its experience and expertise in translating the \ntestimony of medical experts into findings of fact and to draw inferences \nwhen testimony is open to more than a single interpretation.  Id. \nThe claimant alleges that he is entitled to additional medical \ntreatment for complex regional pain syndrome (CRPS).  \n Dr. Carlos Roman conducted an IME on January 30, 2023, and \nopined that, “[b]y Budapest Criteria, he does not fit criteria for complex \nregional pain syndrome, again, also been refractory to sympathetic blocks, \nthose are both therapeutic and diagnostic in scope.\"  (Resp. Ex. 1, P. 28). \nDr. Roman’s report included the findings that: \n• Sympathetic tone is normal and \nsymmetric. \n \n• No excess swelling in the right \nleg compared to the left. \n \n• No gross temperature \ndifferential. \n \n• Color is appropriate. \n \n• No skin breakdown issues. \n \n(Resp. Ex. 1, Pp. 26-30).  \n\nAXSOM - H107962  10\n  \n \n \nOn February 21, 2022, the claimant underwent a nerve conduction \nstudy which resulted in a report of “1. Normal electrodiagnostic study.  2. \nThere is no electrodiagnostic evidence of a focal nerve entrapment, \ngeneralized peripheral neuropathy, or right lumbar radiculopathy.”  (Cl. Ex. \n1, P. 63).  This study was later revised to include an electrodiagnostic \nfinding of right axonal saphenous neuropathy, but no evidence of CRPS. \n(Cl. Ex. 1, P. 65).  \nA June 21, 2022, three-phase bone scan revealed “relatively \ndecreased activity on all three phases within the right foot, which may be \nrelated to disuse of the right leg.”  (Cl. Ex. 1, P. 113).  “Typical pattern for \ncomplex regional pain syndrome is going to be increased activity in all three \nphases, the flow, the pool, and the delay.”  (Resp. Ex. 1, P. 29).  Decreased \nactivity as seen in the claimant’s scan would be a “rare atypical pattern.”  Id. \nBy Budapest Criteria, the tone, \ncolor and temperature was not \ncompatible with complex regional \npain syndrome of the right lower \nextremity.  This bone scan, again, \nindicates the foot, not the knee, \nagain an atypical and unusual \npattern, but not correlative with \ncomplex regional pain syndrome \nand the location of the pooling was \nnot relative to the knee where the \npain is.  The bone scan does not in \nany way conclude complex \nregional pain syndrome.  It is quite \ncontrary.  Obviously the radiologist \nreading the scan would not be \n\nAXSOM - H107962  11\n  \n \n \naware if it was a knee or a foot, but \nthe bone scan does not indicate \ncomplex regional pain syndrome. \nId. \n \nThe claimant did not respond to the typical treatments for CRPS. \n(Hrng. Tr, P. 19; See Cl. Ex. 1, Pp. 115, 117, 119, 128, 130, 132, 141, 143, \n145; Resp. Ex. 1, P. 29).  No fewer than nine lumbar block injections which \nprovided no long-term relief.  Id. \nThe medical records are clear that the claimant has failed to prove by \na preponderance of the evidence that he suffers from CRPS.  The claimant’s \nbone scan was negative for any indication of CRPS, and the results of the \nclaimant’s nerve conduction study showed no evidence of CRPS.  \nDr. Ramon was unequivocal in his medical opinion that despite years \nof investigation by OrthoArkansas, there is no evidence of CRPS by the \nBudapest Standard and the claimant is not entitled to additional medical \ntreatment for this claim. \nAccordingly, for the reasons set forth above, I must dissent. \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":14269,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H107962 CHARLES W. AXSOM, EMPLOYEE CLAIMANT BAPTIST HEALTH, EMPLOYER RESPONDENT CLAIMS ADMINISTRATIVE SERVICES, RESPONDENT INSURANCE CARRIER/TPA OPINION FILED MARCH 7, 2024 Upon review before the FULL COMMISSION in Little Rock...","outcome":"denied","outcomeKeywords":["granted:1","denied:2"],"injuryKeywords":["knee","ankle","sprain","lumbar"],"fetchedAt":"2026-05-19T22:29:45.831Z"},{"id":"full_commission-H004171-2024-03-07","awccNumber":"H004171","decisionDate":"2024-03-07","decisionYear":2024,"opinionType":"full_commission","claimantName":"Joshua Shelton","employerName":"Nucor Yamato Steel Co","title":"SHELTON VS. NUCOR YAMATO STEEL CO. AWCC# H004171 MARCH 7, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Shelton_Joshua_H004171_20240307.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Shelton_Joshua_H004171_20240307.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H004171 \n \nJOSHUA SHELTON, \nEMPLOYEE \n \nCLAIMANT \nNUCOR YAMATO STEEL CO.,  \nEMPLOYER \n \nRESPONDENT \nARCH INSURANCE COMPANY, CARRIER/ \nSEDGWICK CLAIMS MANAGEMENT, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 7, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \nOPINION AND ORDER \n \nThe respondents appeal an administrative law judge’s opinion filed \nAugust 22, 2023.  The administrative law judge found that the claimant \nsustained a compensable back injury.  The administrative law judge \nawarded medical treatment and temporary total disability benefits.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant proved he sustained a compensable back injury.  We find that the \nmedical treatment of record, including the recommendation of a spinal cord \nstimulator, was reasonably necessary in accordance with Ark. Code Ann. \n\nSHELTON - H004171  2\n  \n \n \n§11-9-508(a)(Repl. 2012).  The Full Commission finds that the claimant did \nnot prove he was entitled to additional temporary total disability benefits.       \nI.  HISTORY \n The testimony of Joshua Wade Shelton, now age 52, indicated that \nhe became employed with the respondents, Nucor Yamato Steel Company, \nin about 2002.  The parties initially stipulated that Mr. Shelton “sustained a \ncompensable injury to his back” on June 25, 2020.  The claimant testified \nthat he slipped and fell while stepping over a “roll line.”  The claimant \ntestified that he reported the incident to his supervisor, and that the \nrespondent-employer arranged for the claimant to obtain medical treatment.     \nAccording to the record, the claimant treated with Dr. Robert Riley \nJones at OrthoSouth on June 26, 2020: \nThis is a 48 year old male who is being seen for a chief \ncomplaint of Acute Low Back Pain, involving the lumbar spine \nand spine.  This occurs in the context of tripped and fell at \nwork.  DOI 06/25/2020.  The pain has been present for 1 day.  \nThe lumbar spine and spine pain is aggravated by all \nmovement and is constant.... \nPatient presents today with complaint of pain primarily in his \nleft back and buttock.  This gentleman works for Nucor and \nwas injured on 6/25/2020 when he tripped and fell forward.  \nHe hit his right knee but that is doing relatively well right now \nbut about 20 minutes after he fell he began to have pain in his \nleft lower back.  Pain is primarily in the back but over the last \nseveral days it has radiated down into his posterior thigh on \nthe left.  No real numbness but he does have pain he has \ndifficulty with moving around changing positions.  He had \nprevious surgery at L5-S1 [laminectomy] of Semmes Murphy \non December 20, 2018.  He had [an] excellent result from \nthis.... \n\nSHELTON - H004171  3\n  \n \n \nL-Spine inspection:  left and right paraspinal musculature \ntender to palpation[.]... \nX-ray [shows] decreased disc space at L5-S1 and \nhemilaminectomy left.   \n \n Dr. Jones planned, “I am going to put the patient on a Medrol \nDosepak.  He is already taking Flexeril.  We have ordered an MRI of his \nlumbar spine with and without contrast.  He is off work.  Depending on what \nwe see on the MRI we will either do [an] epidural block or have him see a \nspine surgeon.”  Dr. Jones’ impression was “1.  Spondylosis, lumbar.”  Dr. \nJones also stated, “The injured worker is unable to return to work until \nfurther specified.”   \nAn MRI of the claimant’s lumbar spine was taken on June 26, 2020 \nwith the following pertinent findings:   \nL4/5:  No dural sac compression is apparent.  Mild bilateral \nforaminal narrowing is observed. \nL5/S1:  Postsurgical changes on the left are apparent.  \nEnhancing material most consistent with epidural fibrosis \ninvolves the left S1 nerve root.  Mild disc bulge and \nspondylosis is observed and appears chronic in nature.  There \nis no dural sac or S1 root impingement.  Mild bilateral \nforaminal narrowing is observed. \nImpressions:  1.  No disc herniation, dural sac compression or \nnerve root impingement. \n2.  Mild degenerative change at L5-S1.   \n \nThe parties stipulated that the respondents “accepted this claim as \ncompensable and paid some benefits.”   \n The claimant was provided physical therapy visits beginning June \n29, 2020.   \n\nSHELTON - H004171  4\n  \n \n \n Dr. Jones noted on or about July 24, 2020, “This is a 48 year old \nmale who is following up for Lumbar Sprain (Sprain of ligaments of lumbar \nspine, initial encounter) on the lumbar spine....Patient comes in having had \nto see my partner Dr. Ferguson.  He had spasms and Dr. Ferguson \nchanged his medications to Toradol and Robaxin this appeared to help him.  \nHe also kept him off work for a few days and that has helped.  He would like \nto try to go to therapy [as] many days as they will allow him and apparently \nthe therapist is at the plant 4 days a week.  He is having no real spasm this \ntime but he still has difficulty with flexion and extension....Patient has had \nsome mild improvement.  I think we will go let him continue to be off work.  \nWe will continue his present medications and let him go to therapy 4 times \na week for 1 week.”  Dr. Jones’ impression was “1.  Lumbar Sprain.”  Dr. \nJones stated, “The injured worker is unable to return to work until further \nspecified.” \n Dr. Jones noted on or about July 31, 2020, “The injured worker is \nunable to return to work until further specified.  OFF WORK, and he was \nprescribed Robaxin-750 750 mg tablet (1 po hs for muscle spasms)....He is \ndoing exercises and PT 4 days a week.”   \n Dr. Todd E. Fountain examined the claimant at Semmes-Murphey \nClinic on September 24, 2020: \nThe patient is a very pleasant 49-year-old gentleman \npreviously operated on for a left L5-S1 herniated nucleus \n\nSHELTON - H004171  5\n  \n \n \npulposus.  He did very well from that operative intervention in \n2018.  Unfortunately, while at work, he suffered a fall forward \nfrom a standing height, landing onto a metal crate with his \nright knee.  He states he felt pain initially in his right knee, but \nthat subsided, but it was a few hours later he felt a significant \nincrease in pain in the left back.  Unfortunately, that has been \nunrelenting since that initial injury.  He has been seeing \nOrthoSouth who have been treating him with physical therapy \nand medication, but he has not made a significant response, \nhas not been able to return back to work.  This led to MRI \nimaging of his lumbar spine.... \nFortunately, he does not have any new or recurrent disc \nherniations or residuals.  His foramen are patent and nerve \nelements are free.  His canal is widely patent.  There is no \nsignificant compression.  His x-ray imaging also reveals his \nalignment to be preserved with no overt motion changes on \nflexion-extension.  He does have some facet arthropathy at \nthe 4-5 and 5-1 facets.... \nPlan:  Possible facetogenic pain, L4-5/L5-S1.  I discussed \nwith the patient treatment options at this time.  We will have \nhim see one of our pain specialists for evaluation of facet test \nblock followed by ablative treatment as necessary.  As I see \nno overt structural abnormalities, I do not think I have an \noperative intervention that would be amenable to him at this \ntime.  He understands.  We will not change his work status; he \nremains off work.   \n \n Dr. Jones’ impression on November 10, 2020 was “1.  Lumbar \nSprain” and “Sprain of ligaments of lumbar spine, initial encounter.”  Dr. \nJones returned the claimant to full-duty work, “The patient is discharged \nfrom care.  DISCHARGED MMI.”   \n The impression of Dr. Jay McDonald on January 14, 2021 was “1.  \nLumbar spondylosis at L4 to S1 on the left.  2.  History of disc herniation, \nstable, no radiculopathy.”  The record indicates that Dr. McDonald \nperformed “Medial branch nerve blocks of L4-S1” on February 1, 2021.  Dr. \n\nSHELTON - H004171  6\n  \n \n \nMcDonald noted on June 3, 2021, “Mr. Shelton is a 49-year-old male with a \nhistory of low back pain.  He underwent a left L4 to S1 radiofrequency \nablation.  He says he is about 75% better.  He has been able to be more \nactive.  He does have usual typical soreness after a day of being active but \nat this point he thinks he is on the road to recovery and he is happy about \nthat.”   \n Dr. Jones noted on December 22, 2021, “We have had a long \ndiscussion with the patient gone through [his] records with him.  It appears \nthat some of this is still a radiculopathy possibly secondary to scar tissue.  \nThere is nothing really for of (sic) the neurosurgeons to operate on.  I do not \nsee anything from the orthopedic standpoint to be done.  I think it is \nreasonable to proceed with a trial of the spinal cord stimulator and see if \nthis gives him any improvement.  Even with a spinal cord stimulator I doubt \nthat he will return to full duty.”   \n Dr. Jones signed a Form AR-3, PHYSICIAN’S REPORT on or about \nDecember 24, 2021.  Dr. Jones reported that the diagnosis was \n“Spondylosis without myelopathy or radiculopathy, lumbar region.”  Dr. \nJones checked a box indicating, “The claimant has suffered no permanent \nimpairment due to his/her work-related injury.”  Dr. Jones also indicated that \nthe “maximum medical improvement date (end of healing period)” was \nDecember 22, 2021. \n\nSHELTON - H004171  7\n  \n \n \n The claimant testified that he did not receive any workers’ \ncompensation benefits after January 10, 2022.  Dr. Jones’ impression on \nJanuary 11, 2022 was “1.  Lumbar sprain,” “Sprain of ligaments of lumbar \nspine.”  Dr. Jones again returned the claimant to full-duty work, stating, \n“The following work restrictions were determined:  - none.  No functional \nlimitations or restrictions....The patient is discharged from care.  \nDISCHARGED MMI.”        \n Dr. Jones reported on or about January 24, 2022: \nThis is a 50 year old male who is following up for Lumbar \nSprain (Sprain of ligaments of lumbar spine, initial encounter).  \nHe was seen on December 22, 2021, at which time he was \ngiven the following activity guidelines:  “SEDENTARY DUTY-\nLIMITED WALKING.”  Return date:  12/22/2021.... \nPatient comes in today more for a conference than any \ntreatment or examination.  He apparently has been told that \nhe is at his maximum.  They did not allow him to try the spinal \ncord stimulator.  He is questioning me about possibility of \ngetting a repeat bone scan since his original bone scan \nshowed some increased uptake in the lower back.... \nWe have had a long discussion today concerning the fact that \nwe had discharged him in November 2020.  He then had a \nanother (sic) problem and really has been taken care of by Dr. \nMcDonnell who is the one who recommended a spinal cord \nstimulator.  In my last office visit I made a note that I thought \nthat it might be a reasonable thing to do considering his \ncomplaints of pain.  He is here on his private insurance he \nwould like for me to repeat his bone scan to see if anything \nhas changed.  I have no problem with that.  Arrangements will \nbe made for the bone scan under his private insurance.  We \nwill have it done at the same place he had his first bone scan \nso they can compare adequately.   \n \n Dr. McDonald reported on February 28, 2022: \n\nSHELTON - H004171  8\n  \n \n \nMr. Shelton is here for followup.  We had discussed the spinal \ncord stimulator, but apparently, all further medical care has \nbeen denied by Worker’s Comp.  He is looking into that \ncurrently.  In the meantime, he is asking for some medication.  \nHe says the Celebrex does not really cover him very well.  He \nsays this has really affected his whole life, and he is pretty \nupset about it.  He complains of the same pain across his \nback and down the left leg.  It sounds like his further care is \nbeing denied by Worker’s Comp because they feel that this is \nall related to his surgery in 2018 but not from the fall that he \nhad at work in 2020.... \nPlan:  1.  I would like to point out that I think that the pain that \nwe are dealing with currently is related to his fall in 2020.  \nBased on the timeline of his symptoms, I think he would be an \nexcellent candidate for a spinal cord stimulator, so hopefully, \nwe will be able to go down that route.   \n2.  He is telling me that in the meantime, he would need some \nmedication because he is so miserable, and we discussed \nthat we are not a chronic pain clinic, but if he is denied to have \nthe stimulator, then I need to refer him to a chronic pain clinic.  \nIn the meantime, I wrote Norco 7.5 q. 6 h. #60 with no refills, \nand he will follow up with me as needed based on how \neverything goes with Worker’s Comp and the getting the \nstimulator.   \nADDENDUM \nHe wanted me to clarify whether he was under his PCP’s care \nor my care.  I told him that even if he is released at maximum \nmedical improvement by his PCP/orthopedic surgeon, he is \nstill under my care, and I reinforced that the plan was to see if \nwe can get a stimulator trial done, but if not, then we will see \nhow he does with the medication, and if that works well for \nhim, then I would eventually need to refer him out to a chronic \npain clinic.  Also, I am keeping him at sedentary duty for work.   \n \n The record indicates that Dr. McDonald referred the claimant to Dr. \nMoacir Schnapp, who reported on March 28, 2022: \nThis is a 50-year-old white male who comes to us with a \nprimary complaint of bilateral low back and proximal left lower \nextremity pain for the past two years.   \n\nSHELTON - H004171  9\n  \n \n \nThis gentleman had an on-the-job injury in June 2020.  Since \nthen, he has had severe pain across his back and leg.  He \nwas treated at Semmes Murphey Clinic.  The story is, \nhowever, more complicated including:   \n1.  Lumbar laminectomy with an L5 discectomy in 2018, not \nwork-related. \n2.  On-the-job injury June 2020 followed by intensive \ntreatment with blocks, radiofrequency ablation.   \n3.  He has been offered spinal cord stimulator but his carrier \nhas denied it.   \nHe describes pain as being constant, aching, and throbbing \nacross his back but also with a moderate degree of sciatica \nproximal greater than distal.... \nHe has undergone extensive workup including an MRI of the \nlumbar spine and this was reviewed with the patient.  It shows \nepidural fibrosis on the left lateral canal around the left S1 \nnerve.  An EMG and nerve conduction performed by Dr. \nGraham shows a left lumbar radiculopathy.   \nRadiofrequency ablation between L4-S1 has provided partial \nrelief of his low back pain but still insufficiently.  He comes to \nus for evaluation and pain management.   \nSince Worker’s Compensation denied his spinal cord \nstimulator and he was told that he is not covered under \nWorker’s Compensation anymore, so he comes today on his \nregular insurance.   \nHe gets up with stiffness.  He walks with a limp on the left.  \nThere is flattening of the lumbar lordosis.  There is decreased \nrange of motion of the lumbar spine for flexion, extension and \nrotation.  No long tract signs.  No atrophy or fasciculations.... \nPsychologically he is stable without signs of depression or \nanxiety.... \nHe has a well-healed laminectomy scar. \nI reviewed his records, his EMG, surgery, and MRI.  Clearly, \nhe suffers from post laminectomy syndrome and he has failed \nmost other treatments.  It is clear, in my opinion, that a spinal \ncord stimulator is the next option.  We will obtain \npsychological evaluation for spinal cord stimulator.   \nIn the meantime, we need to think outside the box and we will \nallow him to use Marinol as an anti-neurogenic drug and keep \nhim on Percocet after fully advising him as to the potential for \ndependency, addiction, respiratory depression, etc.  We spent \nthe majority of our 50 minutes going over pain, pain \n\nSHELTON - H004171  10\n  \n \n \nmanagement, pathophysiology of the pain and alternatives for \nthe future.  He also understands that we are not primarily a \nmedication management facility. \n \n A pre-hearing order was filed on May 10, 2023.  According to the \npre-hearing order, the parties agreed to litigate the following issues: \n1.  Whether Claimant is entitled to additional reasonably \nnecessary medical treatment previously denied by \nRespondents.   \n2.  Whether Claimant is entitled to temporary total disability \nbenefits from January 9, 2022, to a date yet to be determined. \n3.  Attorney’s fee.   \n \n Dr. McDonald signed a prepared questionnaire on June 27, 2023 \nand indicated, among other things, that the claimant was “not at maximum \nmedical improvement.”   \nA hearing was held on July 28, 2023.  At that time, the claimant \ncontended, among other things, that he sustained “a compensable \naggravation of a pre-existing condition” on or about June 25, 2020.  The \nclaimant contended that a spinal cord stimulator was reasonably necessary.  \nThe claimant contended that he was entitled to temporary total disability \nbenefits “from the date that the respondents terminated benefits.”  The \nclaimant contended that he was entitled to temporary total disability benefits \n“from January 11, 2022 to a date yet to be determined.”   \n The respondents contended, among other things, that there were “no \nobjective medical findings to corroborate the compensable injury.”  The \n\nSHELTON - H004171  11\n  \n \n \nrespondents contended that there was “no proof that’s objective that the \nclaimant sustained a new injury in this case.”  \n An administrative law judge filed an opinion on August 22, 2023.  \nThe administrative law judge found, among other things, that the claimant \nsustained a compensable back injury.  The administrative law judge \nawarded medical treatment and temporary total disability benefits.  The \nrespondents appeal to the Full Commission. \nII.  ADJUDICATION \n A.  Compensability \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... \narising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n\nSHELTON - H004171  12\n  \n \n \n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).  \n An administrative law judge found in the present matter, “5.  \nClaimant did sustain a compensable back injury on June 25, 2020.”  The \nFull Commission affirms this finding.  The claimant’s testimony indicated \nthat he became employed with the respondents in about 2002.  The \nclaimant testified that he was working for the respondents as a Torch \nInspector on June 25, 2020.  The claimant testified that he slipped and fell \nthat day while stepping across a “roll line.”  The claimant testified that he at \nfirst felt pain in his right knee but afterward began suffering from back pain.  \nThe claimant testified that he reported the accidental injury to his \nsupervisor, and that the respondents arranged for him to treat with a \nphysician.  The claimant began treating with Dr. Jones on June 26, 2020, \nand the parties stipulated that the respondents “accepted this claim as \ncompensable and paid some benefits.”   \n Dr. Jones’ diagnosis on July 24, 2020 was “Lumbar Sprain (Sprain of \nligaments of lumbar spine, initial encounter) on the lumbar spine.”  Dr. \nJones noted that Dr. Ferguson had prescribed medications for the claimant \nto treat “spasms” following the accidental injury.  Dr. Jones reported on or \nabout July 31, 2020 that he had prescribed Robaxin “for muscle spasms.”   \n\nSHELTON - H004171  13\n  \n \n \n Muscle spasms can constitute objective medical findings to support \ncompensability.  Estridge v. Waste Management, 343 Ark. 276, 33 S.W.3d \n167 (2000), citing Continental Express, Inc. v. Freeman, 66 Ark. App. 102, \n989 S.W.2d 538 (1999).  In the present matter, Dr. Jones diagnosed \n“Lumbar Sprain” following the accidental injury, and he prescribed Robaxin \n“for muscle spasms.”  The Full Commission finds in the present matter that \nthe treating physician’s diagnosis of “Lumbar Sprain” accompanied by a \nprescribed treatment of medication for “muscle spasms” is sufficient to \nestablish objective findings of a compensable injury.  See Bradford v. \nStracener Bros. Const., 2021 Ark. App. 316, citing Melius v. Chapel Ridge \nNursing Ctr., LLC, 2021 Ark. App. 61, 618 S.W.3d 410.    \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a compensable injury.  \nThe claimant proved that he sustained an accidental injury causing physical \nharm to the body.  The claimant proved that the injury arose out of and in \nthe course of employment, required medical services, and resulted in \ndisability.  The injury was caused by a specific incident and was identifiable \nby time and place of occurrence on June 25, 2020.  The claimant also \nestablished a compensable injury by medical evidence supported by \nobjective findings, namely Dr. Jones’ prescription of medication for muscle \nspasm following the accidental injury.  We find that these objective medical \n\nSHELTON - H004171  14\n  \n \n \nfindings reported by Dr. Jones were causally related to the June 25, 2020 \ncompensable injury and were not caused by a prior injury or pre-existing \ncondition.   \n B.  Medical Treatment \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee must prove by a preponderance of the evidence that he is \nentitled to additional medical treatment.  Wal-Mart Stores, Inc. v. Brown, 82 \nArk. App. 600, 120 S.W.3d 153 (2003).  What constitutes reasonably \nnecessary medical treatment is a question of fact for the Commission.  \nHamilton v. Gregory Trucking, 90 Ark. App. 248, 205 S.W.3d 181 (2005).   \n An administrative law judge found in the present matter, “The \nClaimant is entitled to additional medical treatment for his back injury of \nJune 25, 2020.”  The Full Commission finds that the treatment of record on \nand after June 26, 2020 was reasonably necessary in connection with the \ncompensable injury.  Said reasonably necessary medical treatment \nincludes trial of a spinal stimulator.   \n The claimant proved by a preponderance of the evidence that he \nsustained a compensable injury on June 25, 2020.  Dr. Jones subsequently \ndiagnosed “Lumbar Sprain,” and the claimant was treated conservatively.  \n\nSHELTON - H004171  15\n  \n \n \nThe claimant was provided treatment to include physical therapy, but no \ntreating physician has recommended that the claimant is a candidate for \nsurgery.  Dr. Jones noted in December 2021, “I do not see anything from \nthe orthopedic standpoint to be done.  I think it is reasonable to proceed \nwith a trial of the spinal cord stimulator and see if this gives him any \nimprovement.”  Dr. McDonald stated in February 2022, “Based on the \ntimeline of his symptoms, I think he would be an excellent candidate for a \nspinal cord stimulator, so hopefully, we will be able to go down that route.”  \nDr. Schnapp reported in March 2022, “It is clear, in my opinion, that a spinal \ncord stimulator is the next option.  We will obtain psychological evaluation \nfor a spinal cord stimulator.”  The claimant testified that he had undergone a \npsychological evaluation, as a result of which he was “a prime candidate for \nthe spinal cord stimulator.”   \n It is within the Commission’s province to weigh all of the medical \nevidence and to determine what is most credible.  Minnesota Mining & Mfg. \nv. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present matter, the \nFull Commission finds that, with regard to trial of a spinal cord stimulator, \nthe opinions of treating physicians Dr. Jones, Dr. McDonald, and Dr. \nSchnapp are entitled to significant evidentiary weight.  We therefore find \nthat trial of a spinal cord stimulator is reasonably necessary in accordance \nwith Ark. Code Ann. §11-9-508(a)(Repl. 2012). \n\nSHELTON - H004171  16\n  \n \n \n C.  Temporary Disability \n Finally, temporary total disability is that period within the healing \nperiod in which the employee suffers a total incapacity to earn wages.  Ark. \nState Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  \n“Healing period” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \ncontinues until the employee is as far restored as the permanent character \nof the injury will permit.  Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 \nS.W.2d 582 (1982).  If the underlying condition causing the disability has \nbecome more stable and nothing further in the way of treatment will \nimprove that condition, the healing period has ended.  Id.  The \ndetermination of when the healing period ends is a question of fact for the \nCommission.  K II Constr. Co. v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 \n(2002).   \n An administrative law judge found in the present matter, “4.  The \nClaimant is entitled to additional temporary total disability benefits from \nJune 25, 2020, through a date to be determined.”  The Full Commission \ndoes not affirm this finding.  As we have discussed, the claimant proved \nthat he sustained a compensable back injury on June 25, 2020.  Dr. Jones \nsubsequently diagnosed \"Lumbar Sprain (Sprain of ligaments of lumbar \nspine, initial encounter)” on the lumbar spine.”  The parties stipulated that \n\nSHELTON - H004171  17\n  \n \n \nthe respondents initially accepted the claim as compensable and paid \nbenefits.  The claimant was provided physical therapy and treatment in the \nform of “radiofrequency ablation.”   \n Dr. Jones signed a Form AR-3, PHYSICIAN’S REPORT on or about \nDecember 24, 2021.  Dr. Jones opined, among other things that the \n“maximum medical improvement date (end of healing period)” was \nDecember 22, 2021.  Based on Dr. Jones’ credible report, the Full \nCommission finds that the claimant reached the end of his healing period \nfor the compensable lumbar sprain no later than December 22, 2021.  \nTemporary total disability benefits cannot be awarded after a claimant’s \nhealing period has ended.  Milligan v. West Tree Serv., 57 Ark. App. 14, \n946 S.W.2d 697 (1997).   The claimant on appeal contends that he is \nentitled to temporary total disability benefits beginning January 10, 2022 to \na date yet to be determined.  The Full Commission finds that the claimant \ndid not re-enter a healing period at any time after December 22, 2021; \ntherefore, the claimant did not prove he was entitled to temporary total \ndisability benefits beginning January 10, 2022.  We recognize that Dr. \nMcDonald signed a prepared questionnaire on June 27, 2023 which \nindicated that the claimant was “not at maximum medical improvement.”  \nThe Full Commission finds that the questionnaire on June 27, 2023 is \nentitled to minimal evidentiary weight when compared to Dr. Jones’ \n\nSHELTON - H004171  18\n  \n \n \ndetermination that the claimant reached maximum medical improvement \nand the end of his healing period no later than December 22, 2021.  The \nFull Commission’s award of a spinal cord stimulator trial does not extend \nthe claimant’s healing period.  We find that a spinal cord stimulator in the \npresent matter is geared toward management of the claimant’s injury \nbeyond the end of the healing period.  See Patchell v. Wal-Mart Stores, \nInc., 86 Ark. App. 230, 184 S.W.3d 31 (2004).   \n   After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved he sustained a compensable back injury.  We find \nthat the medical treatment of record following the compensable injury, \nincluding the recommendation of a spinal cord stimulator, was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe Full Commission finds that the claimant did not prove he was entitled to \nadditional temporary total disability benefits.  For prevailing in part on \nappeal, the claimant’s attorney is entitled to a fee of five hundred dollars \n($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \n \n \n \n \n \n\nSHELTON - H004171  19\n  \n \n \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION      \n I must respectfully dissent from the Majority’s finding that the \nclaimant met his burden of proving that he sustained a compensable back \ninjury on June 25, 2020. \nA compensable injury is an accidental injury arising out of the course \nof employment caused by a specific incident identifiable by time and place \nof occurrence.  Ark. Code Ann. § 11-9-102(4)(A)(i).  This requires that a \nclaimant establish by a preponderance of the evidence:  (1) an injury arising \nout of and in the course of employment; (2) that the injury caused internal or \nexternal harm to the body which required medical services or resulted in \ndisability or death; (3) medical evidence supported by objective findings \nestablishing an injury; and (4) that the injury was caused by a specific \nincident identifiable by time and place of occurrence.  Ark. Code Ann. § 11-\n9-102(4)(A)(i) and Ark. Code Ann. § 11-9-102(4)(E)(i).  A compensable \ninjury must be established by medical evidence supported by objective \n\nSHELTON - H004171  20\n  \n \n \nfindings.  Ark. Code Ann. § 11-9-102(4)(D).  \"Objective findings\" are those \nfindings that cannot come under the voluntary control of the patient.  Ark. \nCode Ann. § 11-9-102(16)(A)(i).  When determining physical or anatomical \nimpairment, complaints of pain may not be considered by the physician or \nany other medical provider, an administrative law judge, the Workers' \nCompensation Commission, or the courts. Ark. Code Ann. § 11-9-\n102(16)(A)(ii).  \nHere, the ALJ opines that, under our rules, muscle spasms constitute \nobjective medical findings.  See Kimbrell v. Arkansas Department of Health, \n66 Ark.App. 245, 989 S.W.2d 570 (1999).  This, however, requires that \ncertain elements be met, including the “observation of ‘an involuntary \nmuscular contraction’ or ‘increased muscular tension and shortness which \ncannot be released voluntarily’” to constitute an objective finding. University \nof Arkansas Medical Sciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 \n(1997). \nAt the claimant’s initial visit with OrthoSouth in Germantown, \nTennessee, Dr. Riley Jones reported that the claimant presented with acute \nlow back pain.  (Cl. Ex. 1, P. 1).  There were no complaints or findings of \nmuscle spasms at that time.  (Cl. Ex. 1, Pp. 1-4).  Dr. Jones referred the \nclaimant for an MRI, and there were no radiographic findings beyond mild \ndegenerative changes at L5-S1.  (Cl. Ex. 1, P. 5).  On June 29, 2020, \n\nSHELTON - H004171  21\n  \n \n \nclaimant began physical therapy at the Nucor-Yamato Health Clinic to \naddress non-work-related lumbar spondylosis and was issued a TENS unit \nto address this issue at home.  (Cl. Ex. 1, P. 7).  On July 2, 2020, the \nclaimant presented to physical therapy complaining of “left paraspinal \nmuscle tension and pain,” but there is no indication that the claimant \nmentioned muscle spasms at that point, and there were no findings of \nmuscle spasms.  (Cl. Ex. 1, P. 9).  Claimant reported “achy” pain in his \ncentral lumbar spine on July 6 and July 7, 2020, but did not begin to \ncomplain of “spasms” until July 9, 2020.  (Cl. Ex. 1, Pp. 10-12).  The \nphysical therapist never observed or diagnosed these purported spasms. \nAlthough the claimant informed the physical therapist that his back spasms \nstarted immediately after getting up from his fall at work on June 25, 2020, \nthese spasms were never observed.  (Cl. Ex 1, P. 28).  In fact, Dr. Jones \nreported on July 24, 2020 that claimant “is having no real spasm at this \ntime.”  (Cl. Ex. 1, P. 30).  A thorough examination of the medical records \nreflects that this pattern continues through the claimant reaching maximum \nmedical improvement (MMI) on January 11, 2022.  No practitioner ever \nobserved or felt the claimant’s purported muscle spasms, and any mention \nof muscle spasms in the claimant’s records are based solely upon the \nclaimant’s own statements.  The only diagnoses the claimant ever received \n\nSHELTON - H004171  22\n  \n \n \nwas lumbar spondylosis and post laminectomy syndrome resulting from a \n2018, non-work-related, laminectomy.  (See Resp. Ex. 1, Pp. 62-64). \n“When there was no other evidence introduced to the contrary,” \nfindings of tenderness, prescriptions for muscle spasms, and physical \ntherapy and pain management may constitute objective findings.  Melius v. \nChapel Ridge Nursing Center, 2021 Ark. App. 61, 618 S.W.3d 410 (2021); \nFred’s, Inc. v. Jefferson, 361 Ark. 258, 206 S.W.3d 238 (2005).  These two \ncases rely on a lack of objective testing.  In the case before the \nCommission, there was objective testing.  The claimant had two separate \nnormal MRIs, a normal EMG, and normal x-rays showing no objective \nproblems that were not degenerative in nature.  Coupled with the absence \nof any medical professional either witnessing or diagnosing the claimant’s \nmuscle spasms, this case is distinct from Melius and Fred’s.  There were no \nobjective findings of muscle spasms or, indeed, any work-related injury \nresulting from the claimant’s June 25, 2020 fall. \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":34546,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H004171 JOSHUA SHELTON, EMPLOYEE CLAIMANT NUCOR YAMATO STEEL CO., EMPLOYER RESPONDENT ARCH INSURANCE COMPANY, CARRIER/ SEDGWICK CLAIMS MANAGEMENT, INSURANCE CARRIER/TPA RESPONDENT","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","lumbar","knee","sprain","herniated"],"fetchedAt":"2026-05-19T22:29:45.856Z"},{"id":"full_commission-H104308-2024-03-07","awccNumber":"H104308","decisionDate":"2024-03-07","decisionYear":2024,"opinionType":"full_commission","claimantName":"Keith Smith","employerName":"Rock Dental Arkansas, Pllc","title":"SMITH VS. ROCK DENTAL ARKANSAS, PLLC AWCC# H104308 MARCH 7, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Smith_Keith_H104308_20240307.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Smith_Keith_H104308_20240307.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H104308 \n \nKEITH W. SMITH, \nEMPLOYEE \n \nCLAIMANT \nROCK DENTAL ARKANSAS, PLLC,  \nEMPLOYER \n \nRESPONDENT \nCINCINNATI CASUALTY COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 7, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK and B. \nTANNER THOMAS, Attorneys at Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE GUY ALTON WADE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed July \n27, 2023.  The administrative law judge found that the claimant failed to \nprove he sustained a compensable injury.  After reviewing the entire record \nde novo, the Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that he sustained a compensable injury.     \nI.  HISTORY \n The testimony of Keith Wayne Smith, now age 68, indicated that he \nbecame a dentist in 1984.  Dr. Smith testified that he began working for the \nrespondent-employer, Rock Dental Arkansas, in October 2020.  The \n\nSMITH - H104308   2\n  \n \n \nclaimant testified that he commuted to the respondents’ office in Helena, \nArkansas.  The parties stipulated that the employee-employer relationship \nexisted on April 19, 2021.  The claimant testified on direct examination: \nQ.  Let’s focus in on April 19 of ’21.  Can you tell me what \nhappened that day? \nA.  Having a better memory sometimes than I can realize, one \nof the assistants had been on vacation and had come back \nfrom vacation on that date.  She’d been on a cruise of some \nsort and had returned to work on that Monday, the 19\nth\n.  And \nwe were looking at the schedule, people were being allocated \nto the chairs as usual, and I went to brew some tea.  I \napparently had put it into the microwave to brew, and then \nwhen I went back to retrieve it and make tea or whatever I \nwas going to do – I think I was using iced tea, because it was \nApril, getting warmer, and I stumbled and fell over some \nchairs.  They were kind of like conference chairs for a \nconference table.  And as I have stated prior, it was a very \nlarge table in a fairly constricted space, so the chairs were \nusually not in a neat fashion, they were kind of in a disarray, \nyou might say, and I had to go from the door, which is on one \nend of the room to the back of the room, which is past the \ntable, if you will, and I fell.  And I stumbled and it felt like - I \nmean, I've stumbled before for one reason or another, but it \nfelt different.  I was hurting.  I was able to pull myself up, get in \na chair, but apparently the others heard, you know, a \ncommotion of some nature and came to see what was going \non, and I was white.  I mean, I was in sort of a shock.  I don’t \nreally remember all the details of what was said around me \nand all such as that, but I did pull up in a chair.  If I was sitting \nupright in a chair I could make some sense.  Apparently I had \nstarted a procedure with one of the patients with anesthesia, \nand I did, was able to go back even after the injury and finish \nwhat I had started.... \nQ.  Do you remember how your foot caught the chair? \nA.  No.   \nQ.  And do you remember how you fell? \nA.  Forward.   \n \n The respondents’ attorney cross-examined the claimant: \n\nSMITH - H104308   3\n  \n \n \nQ.  Now, at the time of this particular claim you were working \nfor Rock Dental at their clinic in Helena, correct? \nA.  Yes, sir.... \nQ.  You would arrive at the office at approximately 8 o’clock, \nand this happened some time, as you described, between \n8:00 and 8:30, is that right? \nA.  Yes.   \nQ.  Now, you have told me that you are actually making tea \nand had been brewing it in the microwave, is that right? \nA.  Correct.   \nQ.  Left it in the microwave, went to see a patient, and you \nwere on your way back to get the tea from the microwave? \nA.  Right.   \nQ.  Now the tea in this microwave is in your conference \nroom/breakroom, is that correct? \nA.  Yes.   \nQ.  And you did not actually physically make it to the \nmicrowave and fell on your way to the microwave, correct? \nA.  Yes.   \nQ.  Now, in the deposition I asked you if before the fall \nwhether you had become light-headed or dizzy, and you said \nnot whatsoever, do you remember that? \nA.  Yes, I do.   \nQ.  So you don’t recall actually becoming dizzy or light-\nheaded on the way to the microwave, is that right? \nA.  No.   \nQ.  Now, you also responded that you never reported to \nanyone that you had been light-headed or dizzy before the \nfall, is that correct? \nA.  Yes.   \nQ.  Now, there was nothing on the floor that caused you to \nfall? \nA.  Other than the chairs, no. \nQ.  There wasn’t any bananas or food or liquids or anything \nthat you noticed on the floor, correct? \nA.  No.   \nQ.  So you didn’t slip in anything?  Nobody had just waxed the \nfloor or put any type of objects or materials that would cause \nyou to slip, correct? \nA.  No.   \n\nSMITH - H104308   4\n  \n \n \nQ.  Now, after the fall there were people that came in the \nbreakroom and tried to figure out what the noise was, is that \nright? \nA.  Yes. \nQ.  Now, the office manager actually called an ambulance, \nwhich picked you up and took you to the Helena Regional \nMedical Center? \nA.  That’s correct.   \n \n The record contains a Patient Care Report from Pafford Medical \nServices – Helena dated April 19, 2021: \nD-DISPATCHED PRIORITY 1 CODE 3 TO THE FAMILY \nDENTISTRY OFFICE ON PLAZA FOR A FALL \nC-C/C IS A FALL WITH INJURY. \nH-THE PT HAS A HX OF HTN, OBESITY, DEPRESSION \nA-ASSESSMENT REVEALS A 65 YEAR OLD WHITE MALE, \nFOUND LAYING IN AN EXAM CHAIR IN ONE OF THE \nEXAM ROOMS WHEN WE ARRIVE.  THE PT STATES THAT \nHE FELL IN THE BREAK ROOM AROUND 0830, AND THAT \nHE NOW HAS PAIN IN HIS LOWER BACK.  HE DOES \nSTATES (sic) THAT JUST PRIOR TO FALLING HE FELT \nDIZZY AND LIGHTHEADED.  THE PT’S V/S ARE STABLE \nOTHER THAN HIS HEART RATE, WHICH IS NOTED TO BE \nBRADYCARDIC.... \nT-THE PT WAS TRANSPORTED ROUTINE STATUS TO \nHRMC ER.... \n \n Dr. Jeff Audibert treated the claimant at Helena Regional Medical \nCenter on April 19, 2021:  “This 65-year-old white male dentist stood up & \nfelt dizzy and lightheaded, then fell to the floor.  He does feel slight low back \npain.  No chest pain or shortness of breath.  No headache or neck pain.  He \ndoes not feel sick at this time.  His heart rate is 53.  He is on a beta-blocker.  \nNo other complaints at this time.”  Dr. Audibert diagnosed “Dizziness and \ngiddiness; Sprain of ligaments of lumbar spine.”   \n\nSMITH - H104308   5\n  \n \n \n An x-ray of the claimant’s lumbar spine was taken on April 19, 2021 \nwith the impression, “No significant findings in the LS spine.  Dilated loops \nof jejunum could be related to gastrostomy.”   \n Dr. Christopher R. Blackmon, D.C. examined the claimant on May 7, \n2021:  “Keith sought treatment today, complaining of intermittent sharp and \nthrobbing discomfort in the low back....Assessment:  Keith has a new \ncondition.”  Dr. Blackmon diagnosed “Wedge compression fracture of T11-\nT12 vertebra[.]”   \n Jim Cavanaugh, a claims adjuster with the respondent-carrier, \ntestified that he interviewed the claimant by telephone on May 11, 2021.  \nThe respondents’ attorney examined Mr. Cavanaugh at hearing: \nQ.  Now when you talked to Dr. Smith, did you ask him how \nhe fell or what led to his fall? \nA.  Yes.   \nQ.  What was his response?  What did he tell you? \nA.  He indicated that, you know, he went to the breakroom to \nobtain a drink I think perhaps from the microwave when he \nfainted or lost consciousness in the breakroom.   \nQ.  So he indicated to you that he had actually fainted or \npassed out, which caused the fall? \nA.  Yes.  Based on our conversation, that’s what it was \nindicating, what he was indicating, you know, given any other \nexplanation at that time.... \nQ.  Did you ask him if he tripped or slipped or fell over \nanything? \nA.  I did.  I did. \nQ.  And what was his response? \nA.  He did not think that that was an aspect related to his fall.   \nQ.  That he didn’t trip over a chair or a table or any other \nobject that was in the floor? \nA.  Correct. \n\nSMITH - H104308   6\n  \n \n \n \n An MRI of the claimant’s lumbar spine was taken on May 20, 2021 \nwith the following impression: \n1.  Acute to subacute superior endplate compression fracture \nof T12 with vertebral body height loss of up to 25%. \n2.  Advanced facet arthropathy at L4-5 and L5-S1 with \nmoderate to severe narrowing of the left neural foramen at L4-\n5.   \n \n The claimant testified that the respondents terminated his \nemployment on May 22, 2021.   \nThe claimant underwent “Uncomplicated T11, and T12 \nvertebroplasty procedures” on June 1, 2021.     \n Dr. Blackmon corresponded with the claimant’s attorney on February \n8, 2023: \nPlease allow me to summarize my treatment of Dr. Keith \nSmith. \nDr. Smith presented himself to this office on 5/7/2021 with the \nchief complaint of right upper low back pain, hip pain, and leg \npain.  He stated that he had suffered a back injury at his work \nlocation in Helena, Arkansas on 4/19/2021.  He was initially \ntaken to the emergency room at Helena Regional Medical \nCenter.  He was told that he didn’t have any fractures.  \nHowever, his pain continued with little to no improvement so \nhe sought care at this office. \nOn his initial visit, x-rays were taken and revealed 2 spinal \ncompression fractures in the lower thoracic spine.  He was \nreferred to his primary care physician for treatment of the \nfractures.  An MRI was performed and confirmed the spinal \nfractures.  He was then referred for kyphoplasty to repair the 2 \ncompression fractures.   \nPost surgically, I saw Dr. Smith on 06/10/21 and 6/25/2021.  \nHe explained that he had been convalescing and allowing \nsome down time for healing.  Unfortunately, he stated that he \n\nSMITH - H104308   7\n  \n \n \nneeded to return to work which prevented him from continuing \non the treatment plan. \nRecently, beginning in November of 2022, I have seen Dr. \nSmith for follow up treatment secondary to the \naforementioned kyphoplasty.  He reports protracted soreness, \nand tightness in the affected thoracic region.  He has been \nunder regular chiropractic care from 11/11/2022 to present.  \nAt the 11/11/2022 appointment, secondary x-rays were taken \nand these images revealed the surgical repair (kyphoplasty) of \nthe thoracic vertebrae.  Some residual scar tissue is also \npresent.  The ongoing maintenance therapy is to maintain \ncomfort, especially in light of the patient’s occupation, and \nalso, to keep range of motion at a maximum.  Lastly, this will \nensure long range patient comfort. \nPlease let me know if I can be of further assistance to you or \nyour office.   \n \n A hearing was held on March 8, 2023, at which time an \nadministrative law judge announced the parties’ contentions.  The claimant \ncontended, among other things, that he fell and injured his back in the \ncourse and scope of employment on April 19, 2021, and that he sustained a \ncompensable injury.  The claimant contended that he was entitled to \nmedical treatment, temporary total disability benefits, and fees for legal \nservices.   \n The parties stipulated that the respondents \"have controverted the \nclaim in its entirety.\"  The respondents contended that the claimant did not \nsustain a compensable injury.  The respondents’ attorney stated that there \nwere two defenses to the claim:  “One is course and scope, the other is \nidiopathic, in neither case which would mean it was compensable.” \n\nSMITH - H104308   8\n  \n \n \n An administrative law judge filed an opinion on July 27, 2023.  The \nadministrative law judge found that the claimant did not prove he sustained \na compensable injury.  The administrative law judge therefore denied and \ndismissed the claim.  The claimant appeals to the Full Commission.  \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external physical \nharm to the body ... \narising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.] \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).   \n An idiopathic injury is one whose cause is personal in nature, or \npeculiar to the individual.  Crawford v. Single Source Transp., 87 Ark. App. \n216, 189 S.W.3d 507 (2004), citing Kuhn v. Majestic Hotel, 324 Ark. 21, 918 \n\nSMITH - H104308   9\n  \n \n \nS.W.2d 158 (1996).  Injuries sustained due to an unexplained cause are \ndifferent from injuries where the cause is idiopathic.  ERC Contractor Yard \n& Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).  Where a \nclaimant suffers an unexplained injury at work, it is generally compensable.  \nLittle Rock Convention & Visitors Bur. v. Pack, 60 Ark. App. 82, 959 S.W.2d \n415 (1997).  Because an idiopathic injury is not related to employment, it is \ngenerally not compensable unless conditions related to the employment \ncontribute to the risk.  Id.  Employment conditions can contribute to the risk \nor aggravate the injury by, for example, placing the employee in a position \nwhich increases the dangerous effect of the fall, such as on a height, near \nmachinery or sharp corners, or in a moving vehicle.  Id.  See also \nDelaplaine Farm Center v. Crafton, 2011 Ark. App. 202, 382 S.W.2d 689.   \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  The Full \nCommission reviews an administrative law judge’s opinion de novo, and it is \nthe duty of the Full Commission to conduct its own fact-finding independent \nof that done by an administrative law judge.  Crawford v. Pace Indus., 55 \n\nSMITH - H104308   10\n  \n \n \nArk. App. 60, 929 S.W.2d 727 (1996).  The Full Commission enters its own \nfindings in accordance with the preponderance of the evidence.  Tyson \nFoods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).         \n An administrative law judge found in the present matter, “3.  The \nclaimant failed to prove, by a preponderance of the evidence, that he \nsuffered a work-related injury by specific incident.”  The Full Commission \nfinds that the claimant sustained an idiopathic injury which was not related \nto the claimant’s employment and was not compensable. \n The claimant, a dentist by profession, testified that he became \nemployed with the respondents in October 2020.  The parties stipulated that \nthe employee-employer relationship existed on April 19, 2021.  The \nclaimant testified that he “fell and stumbled over some chairs” that day while \nwalking to a microwave in the respondent-employer’s breakroom.  The \nclaimant testified that he pulled himself up, sat in a chair, and eventually \nreturned to work.  The claimant testified on cross-examination that he had \nnot felt “lightheaded or dizzy” before falling in the breakroom.  The Full \nCommission finds that the claimant was not a credible witness.  Farmers \nCo-op, supra.  The Patient Care Report from Pafford Medical Services, \ndated April 19, 2021, indicated that the claimant indeed “felt dizzy and \nlightheaded” before falling in the breakroom that morning.  Dr. Audibert, an \nexamining physician, corroborated the report from Pafford Medical \n\nSMITH - H104308   11\n  \n \n \nServices.  Dr. Audibert reported on April 19, 2021 that the claimant “stood \nup & felt dizzy and lightheaded, then fell to the floor.”  An x-ray on April 19, \n2021 showed “no significant findings” in the claimant’s lumbar spine.   \n The record shows that the claimant sustained an idiopathic injury on \nApril 19, 2021 which was not related to the claimant’s employment and was \nnot compensable.  The probative medical evidence demonstrates that the \nclaimant became “dizzy and lightheaded,” a personal condition which led to \nthe claimant’s fall in the respondents’ breakroom.  The Full Commission \nfinds that Jim Cavanaugh, a claims adjuster with the respondent-carrier, \nwas a credible witness whose testimony was corroborated by the record.  \nJim Cavanaugh testified that the claimant informed him “he fainted or lost \nconsciousness in the breakroom.”  Mr. Cavanaugh agreed that the claimant \ndid not report a “trip over a chair or a table or any other object” in the \nbreakroom.  There is no probative evidence demonstrating that any \nconditions related to the claimant’s employment contributed to the risk of \nfalling, which fall was caused by an idiopathic event.  The record does not \ncorroborate the claimant’s testimony that he tripped over a chair, and the \nrecord does not show that the claimant was working on a height, near \nmachinery or sharp corners, or in a moving vehicle.  Pack, supra. \n After reviewing the entire record de novo, the Full Commission \naffirms the administrative law judge’s finding that the claimant did not prove \n\nSMITH - H104308   12\n  \n \n \nby a preponderance of the evidence that he sustained a compensable \ninjury.  The evidence demonstrates that the claimant sustained an \nidiopathic injury on April 19, 2021 which was not related to the claimant’s \nemployment and was not compensable.  The claimant did not prove that he \nwas entitled to any medical treatment of record or temporary total disability \nbenefits.  This claim is respectfully denied and dismissed. \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":18605,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H104308 KEITH W. SMITH, EMPLOYEE CLAIMANT ROCK DENTAL ARKANSAS, PLLC, EMPLOYER RESPONDENT CINCINNATI CASUALTY COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 7, 2024","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:1","granted:1","denied:3"],"injuryKeywords":["back","neck","sprain","lumbar","fracture","hip","thoracic"],"fetchedAt":"2026-05-19T22:29:45.869Z"},{"id":"alj-G607980-2024-03-07","awccNumber":"G607980","decisionDate":"2024-03-07","decisionYear":2024,"opinionType":"alj","claimantName":"Eric Holmes","employerName":"Dana Turnage","title":"HOLMES VS. DANA TURNAGE AWCC# G607980 MARCH 7, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/Holmes_Eric_H301677_20240307.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Holmes_Eric_H301677_20240307.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301677 \n \n \nERIC G. HOLMES, EMPLOYEE CLAIMANT \n \nDANA TURNAGE, EMPLOYER RESPONDENT \n \nAMGUARD INS. CO., CARRIER RESPONDENT \n \n \nOPINION FILED MARCH 7, 2024 \n \nHearing before Administrative Law O. Milton Fine II on January 3, 2024, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant represented by Mr. Jacobi P. Malone, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  Mr. Randy  P.  Murphy,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On January  3,  2024,  the  above-captioned  claim  was  heard  in Little  Rock, \nArkansas.    A  pre-hearing  conference  took  place  on October  2,  2023.   The Prehearing \nOrder entered on that date pursuant to the conference was admitted without objection as \nCommission Exhibit 1.  At the hearing, the parties confirmed that the stipulations, issues, \nand respective contentions, as amended, were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  Following a mutually-agreed withdrawal of the fourth,\n1\n they read: \n \n1\nStipulation No. 4 read:  “The parties will stipulate at the hearing to Claimant’s \naverage weekly wage and compensation rates.”  But the  parties at  the  outset  of  the \nhearing advised that that they were unable to arrive at an agreement.  Consequently, this \nstipulation was withdrawn, and the valuation of Claimant’s average weekly wage was \nadded as an issue. \n\nHOLMES – H301677 \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The employee/employer/carrier relationship existed on December 27, 2022, \nand at all other relevant times.\n2\n \n3. Respondents have controverted this claim in its entirety. \nIssues \n At the hearing, the parties discussed the issues set forth in Commission Exhibit 1.  \nAfter  the withdrawal of the stipulation concerning the valuation of Claimant’s average \nweekly wage and its insertion into the issues to be tried, the following were litigated: \n1. Whether Claimant sustained compensable injuries to his neck and back by \nspecific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \n5. What was Claimant’s average weekly wage? \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are as follows: \n  \n \n \n2\nI have overruled Respondents’ motion to withdraw this particular stipulation—\nsee infra. \n\nHOLMES – H301677 \n3 \n \nClaimant: \n1. Claimant contends that he is entitled to payment of temporary total disability \nbenefits from the date of the injury to date.  He was unable to return to work, \nunder the physician’s order.  However, he has brokered small jobs between \nhis labor team and clients. \nRespondents: \n1. Respondents contend  that  Claimant  did  not  sustain  an  injury  during  the \ncourse  and  scope  of  his  employment.   There  is  no  medical  evidence  to \nsupport a work-related injury or disability.  Moreover, Claimant did not timely \nreport the alleged on-the-job injury. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother matters properly before the Commission, and having had an opportunity to hear the \ntestimony of the witnesses and to observe their demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Respondents’ motion to withdraw Stipulation No. 2 is hereby denied. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he \nsustained a compensable injury to his neck by specific incident. \n\nHOLMES – H301677 \n4 \n \n5. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he \nsustained a compensable injury to his back by specific incident. \n6. Because of Findings of Fact/Conclusions of Law Nos. 4 and 5, supra, the \nremaining   issues—whether   Claimant   is   entitled   to   reasonable   and \nnecessary  medical  treatment,  temporary  total  disability  benefits,  and  a \ncontroverted attorney’s fee, and the valuation of his average weekly wage—\nare moot and will not be addressed. \nPRELIMINARY RULING \nMotion to Withdraw Stipulation \n At the hearing, the following colloquy took place: \nJUDGE FINE:  My understanding is that the claimant has no other proposed \nchange to the stipulations, but the respondents do so, and I’ll now hear you \non that, Mr. Murphy. \n \nMR. MURPHY:  Yes, Your Honor.  Based on the information that’s come to \nlight, we’re contending that the claimant was not an employee of Rainproof \nRoofing  at  the  time  of  the  incident.    We  can  stipulate  to  the  carrier \nrelationship, of course, but it’s our position  that  Mr.  Holmes  was  not  an \nemployee of Rainproof Roofing. \n \nJUDGE FINE:  All right, counsel.  When you say this came to light, was this \na result perhaps maybe of a deposition or something of that nature? \n \nMR. MURPHY:  It was primarily the deposition, Your Honor, but also other \ninformation that we have received during the course of our preparation for \nthis hearing. \n \nJUDGE FINE:  Okay.  I have not seen in reviewing my file any notification \nfrom your office that you were changing your approach to this.  Did you send \nsomething that I’m not aware of? \n \nMR. MURPHY:  I did not. \n \nJUDGE  FINE:    Did  you  notify  Mr.  Malone  prior  to  today  of  the  change  in \nposture on it? \n \n\nHOLMES – H301677 \n5 \n \nMR. MURPHY:  No, Your Honor. \n \nJUDGE FINE:  Okay.  Any reasoning as to why you did not do that? \n \nMR. MURPHY:  Well no, other than the fact that it was just an oversight, I \nguess,  on  my  part,  but  it—we’ve challenged the  compensability  and,  you \nknow, I know it’s a separate issue as we’ve talked about off the record, but \nwe—we’re not prepared and would like to hear testimony, believe there will \nbe testimony, anyway, on the quote, alleged employment relationship. \n \nJUDGE FINE:  All right.  Basically, Mr. Malone, Mr. Murphy—and I know we \ndiscussed  this  off  the  record,  but  Mr.  Murphy  is  moving  to  withdraw \nStipulation No. 2, and my understanding is that you are objecting to that, is \nthat correct? \n \nMR. MALONE:  That is correct, Your Honor. \n \nJUDGE FINE:  All right.  Do you want to give [sic] further on that to make \nyour record as to why you’re objecting? \n \nMR. MALONE:  Yes, Your Honor.  I would just object to the untimeliness of \nthe [sic] being informed as to a withdrawal of that stipulation, Your Honor.  \nWe had no time to prepare.  We came with the agreement that it was already \nestablished that Mr. Holmes was an employee of Mr. Turnage’s so it’s just \nkind of last minute. \n \nJUDGE FINE:  All right.  Let me advise the parties on this.  I’m going to go \nahead and take this proposed change to the Stipulation No. 2, the proposed \nwithdrawal of Stipulation No. 2, under advisement.  I’ll rule in my opinion on \nwhether I will allow that. \n \n[R. 4-6] \n “A stipulation is an agreement between attorneys respecting the conduct of the \nlegal proceedings.”  Ark. Dept. of Corr. v. Jackson, 2019 Ark. App. 124, 571 S.W.3d 539 \n(citing Dinwiddie  v.  Syler,  230  Ark.  405,  323  S.W.2d  548  (1959)).    As  a  general  rule, \nparties are bound by their stipulations.  Dempsey v. Merchants Natl. Bank of Fort Smith, \n292 Ark. 207, 729 S.W.2d 150 (1987).  Nonetheless, the Commission may in its discretion \npermit a party to withdraw a stipulation.  Ark. Dept. of Corr., supra; Jackson v. Circle T \nExpress, 49 Ark. App. 94, 896 S.W.2d 602 (1995). \n\nHOLMES – H301677 \n6 \n \n As the Court of Appeals wrote in Sapp v. Tyson Foods, 2010 Ark. App. 517, 2010 \nArk.   App.   LEXIS   549, “elementary  principles  of  fair  play”  apply  in  Commission \nproceedings.   It would  certainly violate  those principles  in  this  instance  to  allow \nRespondents to withdraw this stipulation so belatedly.  As their counsel acknowledged, \nhe was aware of the circumstances that led to the proposed withdrawal well in advance \nof the hearing, yet he did not alert opposing counsel to this at any point before the hearing.  \nThe withdrawal would mean that Claimant would have had to prove the existence of the \nemployer/employee relationship—an element of compensability (see supra)—that he was \nnot  prepared  to  do  because  of  the  stipulation.   Consequently,  the motion  to  withdraw \nStipulation No. 2 must be, and hereby is, denied. \nCASE IN CHIEF \nSummary of Evidence \n The  witnesses  at  the  hearing  were  Claimant;  his  son,  Eevan  Holmes,  and \nRespondent, Dana Turnage. \n In addition to the prehearing order discussed above, admitted into evidence in this \ncase was Respondents’ Exhibit 1, three screen shots of video footage. \nAdjudication \nA. Compensability \n In this action, Claimant has alleged that he suffered compensable injuries to his \nneck and back by specific incident on December 27, 2022, when he was struck by multiple \nbricks while he was working for Respondent Turnage, performing demolition on a building \nas  part  of  a  crew.    Respondents,  in  turn,  have denied  that  Claimant  suffered  a \ncompensable injury of any type. \n\nHOLMES – H301677 \n7 \n \n Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the \nbody . . . arising out of and in the course of employment and which \nrequires medical services or results in disability or death.  An injury \nis  “accidental”  only  if  it  is  caused  by  a  specific  incident  and  is \nidentifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe element “arising out of . . . [the] employment” relates to the causal connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when a causal connection between work conditions and the injury is apparent to the \nrational mind.”  Id. \n In Hudak-Lee  v.  Baxter  County  Reg.  Hosp.,  2011  Ark.  31,  378  S.W.3d  77,  the \nArkansas Supreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and \nin  the  course of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i)  (Supp. \n2009).  A compensable injury does not include an injury that is inflicted upon \nthe employee at a time when employment services are not being performed. \nArk.  Code  Ann.  §  11-9-102(4)(B)(iii) (Supp. 2009).  The phrase “in the \ncourse of employment” and the term “employment services” are not defined \nin  the Workers'  Compensation Act.  Texarkana Sch.  Dist.  v.  Conner, 373 \nArk. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court to define these \nterms in a manner that neither broadens nor narrows the scope of the Act.  \nId. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \n\nHOLMES – H301677 \n8 \n \nthe course and scope of employment.  Jivan v. Econ. Inn & Suites, 370 Ark. \n414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred within \nthe time and space boundaries of the employment, when the employee was \ncarrying out the employer's purpose or advancing the employer's interest, \ndirectly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 S.W.3d 57, we stated \nthat where it was clear that the injury occurred outside the time and space \nboundaries of employment, the critical inquiry is whether the interests of the \nemployer were being directly or indirectly advanced by the employee at the \ntime  of  the  injury.    Moreover,  the  issue  of  whether  an  employee  was \nperforming employment services within the course of employment depends \non the particular facts and circumstances of each case.  Id. \n \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., 72 \nArk.  App.  309,  37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness, but may accept and translate \ninto findings of fact only those portions of the testimony that it deems worthy of belief.  Id. \n No medical  records were  offered into evidence.    Consequently,  the  evidentiary \nrecord is devoid of objective findings of injuries to Claimant’s neck and/or back.  He thus \ncannot  show  that he  sustained a  compensable  injury  to either of  these body  parts;  his \nclaim must fail at the outset.  Claimant has not proven compensability by a preponderance \nof the evidence. \n\nHOLMES – H301677 \n9 \n \nB. Remaining Issues \n Because of the foregoing, the remaining issues—whether Claimant is entitled to \nreasonable  and necessary  medical  treatment,  temporary total  disability  benefits,  and a \ncontroverted attorney’s fee, as well as the valuation of his average weekly wage—are \nmoot and will not be addressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":14882,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301677 ERIC G. HOLMES, EMPLOYEE CLAIMANT DANA TURNAGE, EMPLOYER RESPONDENT AMGUARD INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 7, 2024 Hearing before Administrative Law O. Milton Fine II on January 3, 2024, in Little Rock, Pulaski County, Arkansas. Clai...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:2"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:56:01.398Z"},{"id":"alj-G900272-2024-03-05","awccNumber":"G900272","decisionDate":"2024-03-05","decisionYear":2024,"opinionType":"alj","claimantName":"Glenn Davis","employerName":"Weyerhauser Nr Co","title":"DAVIS VS. WEYERHAUSER NR CO. AWCC# G900272 MARCH 5, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Davis_Glenn_G900272_20240305.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Davis_Glenn_G900272_20240305.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G900272 \n \n \nGLENN D. DAVIS, EMPLOYEE CLAIMANT \n \nWEYERHAUSER NR CO., \n SELF-INUSRED EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MGMT. SVCS., INC., \n THIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED MARCH 5, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on  December 6, 2023, in El \nDorado, Union County, Arkansas. \n \nClaimant represented by Ms. Laura Beth York, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  Mr.  Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On  December  6,  2023,  the  above-captioned  claim  was  heard  in  El  Dorado, \nArkansas.    A  pre-hearing  conference  took  place  on  September 26,   2023.    The \nPrehearing  Order  entered  that  same  day  pursuant  to  the  conference  was admitted \nwithout  objection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that \nthe  stipulations,  issues,  and  respective  contentions,  as  amended,  were  properly  set \nforth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  Following amendments at the hearing, they are the following, which I accept: \n\nDAVIS – G900272 \n \n2 \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The  employee/self-insured  employer/third  party  administrator  relationship \nexisted  at  all  relevant  times,  including  on  or  about  December  17,  2018, \nwhen Claimant sustained a compensable injury to his back. \n3. Claimant  was  assigned  an  impairment  rating  of  twelve  percent  (12%)  to \nthe  body  as  a  whole  in  connection  with  his  compensable  back  injury.  \nRespondents  accepted  and  paid  this  rating,  along  with  an  attorney’s  fee \nthereon. \n4. Claimant’s    average    weekly    wage of    $1,010.00    entitles    him    to \ncompensation rates of $673.00/$505.00. \n5. Respondents have controverted this claim for additional benefits. \nIssues \n The  parties  discussed  the  issues  set  forth  in  Commission  Exhibit  1.    Following \namendments, the following were litigated: \n1. Whether  Claimant  is  entitled  to penalties  and  interest  concerning  the \ncircumstances  surrounding  the  payment  of  permanent  partial  disability \nbenefits in connection with the  twelve percent (12%)  impairment rating to \nthe body as a whole that he was assigned for his stipulated compensable \nback injury. \n2. Whether Claimant is permanently and totally disabled or, in the alternative, \nentitled to wage loss disability benefits. \n\nDAVIS – G900272 \n \n3 \n3. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant contends that on December 17, 2018, he fell from a ladder in the \ncourse  and  scope  of  his  employment,  injuring  his  back.    Respondents \naccepted   the   claim  as   compensable.      On   November   25,  2019,   he \nunderwent   a   lumbar   fusion   surgery   at   L5-S1.      Claimant   received \nconservative   treatment   following   surgery;   but   eventually,   Dr.   Scott \nSchlesinger   recommended   a   left   L3-4   decompression   and   fusion \nprocedure.    Respondents  authorized  the  decompression  but  not  the \nfusion.  Schlesinger  opined  that  he  was  concerned  that  Claimant  would \ndevelop  progressive  collapse  of  the  left  L3-4  neural  foramen  without  a \nsimultaneous  lumbar  fusion.    Respondents  sent  Claimant  to  Dr.  Wayne \nBruffett  for  an  independent  medical  evaluation.    He  opined  that  Claimant \ndid  not  need  another  surgery  and  released  him  at  maximum  medical \nimprovement with a twelve percent (12%) impairment rating to the body as \na  whole  on  August  9,  2021.    Bruffett  also  found  that  Claimant  could  not \nwork  an  eight-hour  day,  and  recommended  that  he  apply  for  Social \nSecurity   Disability   benefits.      At   that   point,   Respondents   cut   off   all \ntreatment and ceased payment of indemnity benefits. \n\nDAVIS – G900272 \n \n4 \n2. Claimant requested a change of physician for ongoing pain management. \n3. Claimant   is   56   years   old   and   had   been   employed   by   Respondent \nemployer  for  23  years  at  the  time  the  accident  in  question  took place.  \nClaimant was terminated by his employer following this accident.. \n4. Claimant  further  contends  that  he  is  entitled  to  payment  of  permanent \npartial  disability  benefits  in  connection  with  his  twelve  percent  (12%) \nimpairment rating, along with interest and penalties. \n5. Claimant  also  contends  that  he  is  permanently  and  totally  disabled  or,  in \nthe  alternative,  entitled  to  wage  loss  disability  benefits,  and  that  his \nattorney is entitled to controverted fee. \n6. Claimant reserves all issues not raised herein. \nRespondents: \n1. Respondents   contend   that   Claimant   is   not   permanently   and   totally \ndisabled or entitled to any wage loss disability benefits. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  Claimant  and  to observe  his  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nDAVIS – G900272 \n \n5 \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to the payment  under Ark. Code  Ann.  § 11-9-802(b) (Repl. 2012) \nof an additional eighteen (18%) percent of the value of his twelve percent \n(12%) impairment rating to the body as a result of Respondents’ failure to \ninitiate payment of permanent partial disability benefits in a timely manner \nunder this provision. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he  is \npermanently and totally disabled. \n5. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  has \nsustained wage loss disability of thirty-five percent (35%), and is entitled to \nadditional permanent partial disability benefits pursuant thereto. \n6. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  his \nattorney, the Hon. Laura Beth York, is entitled to a controverted fee under \nArk.  Code  Ann.  § 11-9-715  (Repl.  2012)  on  the  indemnity  benefits \nawarded herein in Findings/Conclusions Nos. 3 and 5 supra. \nCASE IN CHIEF \nSummary of Evidence \n Claimant  was  the  sole  witness.  He  testified  at  the  hearing  and  via  deposition \n(see infra). \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into  evidence  in \nthis case were the following:  Claimant’s Exhibit 1, a compilation of his medical records, \n\nDAVIS – G900272 \n \n6 \nconsisting   of   five   abstract/index   pages and   120   numbered   pages   thereafter; \nRespondents’ Exhibit 1, the transcript of the deposition\n1\n of Claimant taken October 14, \n2022, consisting of 68 numbered pages; and Joint Exhibit 1, documentation concerning \nthe  payment  of  permanent  partial  disability  benefits  pursuant  to  the  impairment  rating \nand the controverted attorney’s fee thereon, consisting of three pages. \nAdjudication \nA. Penalties and Interest \n Introduction.  As  alluded  to  above,  Claimant  suffered  a  stipulated  compensable \nback  injury.    He  has  argued  that  while,  as  stipulated,  Respondents accepted  and  paid \nthis  rating,  they  did  not  do  so  in  a  timely  fashion.    For  that  reason,  they  are  liable  for \ninterest and penalties.  Respondents deny this. \n Standards.    Under Ark. Code Ann. § 11-9-802 (Repl. 2012): \n(a) The first installment of compensation shall become due on the fifteenth \nday after  the employer has  notice of  the  injury or death, as  provided in  § \n11-9-701, on  which  date  all  compensation  then  accrued  shall be  paid. \nThereafter, compensation shall be paid every two (2) weeks except where \nthe Workers' Compensation Commission directs that installment payments \nbe made at other periods. \n \n(b) If  any  installment of  compensation  payable  without an  award is  not \npaid   within   fifteen   (15)   days   after it   becomes   due, as   provided   in \nsubsection   (a) of   this   section,   there   shall be   added to   the  unpaid \ninstallment an  amount equal  to  eighteen  percent  (18%)  thereof,  which \nshall be paid at the same time as, but in addition to, the installment unless \nnotice of  controversion is  filed or  an  extension is  granted  the  employer \nunder   § 11-9-803   or   unless   such   nonpayment is   excused by   the \ncommission after a showing by the employer that, owing to conditions over \n \n1\nPer Commission policy, this separately-bound transcript has been retained in the \nCommission’s file. \n\nDAVIS – G900272 \n \n7 \nwhich he  or  she  had  no  control,  the  installment  could  not be  paid  within \nthe period prescribed. \n \n. . . \n \n(e) In the event that the commission finds the failure to pay any benefit is \nwillful and  intentional,  the  penalty  shall be  up  to  thirty-six  percent  (36%), \npayable to the claimant. \n \n As the party seeking relief under this provision, Claimant under Ark. Code Ann. § \n11-9-705(a)(3)  (Repl. 2012)  must  prove  his  entitlement  thereto  by  a  preponderance  of \nthe  evidence.    This  standard  means  the  evidence  having  greater  weight  or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n Discussion.    Respondents  sent  Claimant  to  an  independent  medical  evaluation \nby  Dr. Wayne  Bruffett on August 9, 2021.   Dr.  Bruffett  on  that date  assigned  Claimant \nan  impairment  rating  of  twelve  percent  (12%)  to  the  body  as  a  whole.    Based  on \nClaimant’s  stipulated  compensation  rate,  he  should  have  received  permanent  partial \ndisability   benefits   totaling   $27,270.00,   payable   over   the   course   of   54   weeks in \naccordance  with  § 11-9-802(a)-(b).    But  instead  of  initiating  payment  of  installments \nwithin 15 days, as provided by the law, Respondents did not pay him anything thereon \nuntil September 22, 2022.  On that date, as shown by Joint Exhibit 1, they sent Claimant \na  lump-sum  check  in  the  amount  of  $23,861.25—which  consists  of  $27,270.00  minus \nClaimant’s portion of the controverted attorney’s fee under § 11-9-715, or $3,408.75. \n\nDAVIS – G900272 \n \n8 \n At  the  hearing,  Claimant  argued  that  the  lengthy  delay  in  payment—almost  13 \nmonths—is “res ipsa loquitor.”\n  2 \n  Respondents countered that the reason for the delay \nwas  that  the  parties  had  been  working toward  an amicable  resolution  of  the  claim,  but \nultimately just paid the value of the rating in a lump sum.  Once that occurred, a pending \nearlier hearing on this claim was taken off the docket. \n My  review  of  the  evidence  shows  that  Respondents  clearly  did  not  comply  with \nthe  15-day  deadline  for  initiating  payments  under  Subsection  (b).    However,  the \ncircumstances  do  not  warrant  a  finding  that  the  failure  to  pay  in  a  timely  manner  was \n“willful and intentional” under Subsection (e).  Consequently, Claimant has proven by a \npreponderance of the evidence that he is entitled to payment of an additional eighteen \n(18%) percent under § 11-9-802(b). \nB. Permanent and Total Disability \n Introduction.  Claimant has contended that as a result of his compensable injury, \nhe  is  permanently  and  totally  disabled.    In  the  alternative,  he  has  asserted  that  he  is \nentitled to wage loss disability benefits over and above his twelve percent (12%) whole-\nbody impairment rating.  Respondents have argued otherwise. \n Standard.  The accident of December 17, 2018, resulted in a compensable injury \nto Claimant’s back.  This injury is an unscheduled one.  Cf. Ark. Code Ann. § 11-9-521 \n(Repl. 2012).  The term “permanent total disability” is defined in the statute as “inability, \n \n \n2\nThis  is  a  Latin  term  meaning, “The  thing  speaks  for  itself.”    BLACK’S  LAW \nDICTIONARY 678 (abridged 5\nth\n ed. 1983). \n\nDAVIS – G900272 \n \n9 \nbecause of compensable injury or occupational disease, to earn any meaningful wages \nin the same or other employment.”  Id. § 11-9-519(e)(1) (Repl. 2012). \n Claimant’s entitlement to wage loss disability benefits is controlled by Ark. Code \nAnn. § 11-9-522(b)(1) (Repl. 2012), which states: \nIn considering claims for permanent partial disability benefits in excess of \nthe   employee’s   percentage   of   permanent   physical   impairment,   the \nWorkers’ Compensation Commission may take into account, in addition to \nthe  percentage  of  permanent  physical  impairment,  such  factors  as  the \nemployee’s    age,    education,    work    experience,    and   other matters \nreasonably expected to affect his or her future earning capacity. \n \nSee  Curry  v.  Franklin  Elec.,  32  Ark.  App.  168,  798  S.W.2d  130  (1990).    Such  “other \nmatters” include motivation, post-injury income, credibility, demeanor, and a multitude of \nother  factors.   Id.; Glass  v.  Edens,  233  Ark.  786,  346  S.W.2d  685  (1961).    As  the \nArkansas  Court  of  Appeals  noted  in Hixon  v.  Baptist  Health,  2010  Ark.  App.  413,  375 \nS.W.3d 690, “there is no exact formula for determining wage loss . . . .”  Under § 11-9-\n522(b)(1),  when  a  claimant  has  been  assigned  an  impairment  rating  to  the  body  as  a \nwhole, the Commission possesses the authority to increase the rating, and it can find a \nclaimant  totally  and  permanently  disabled  based  upon  wage-loss  factors.   Cross  v. \nCrawford County Memorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). \n To  be  entitled  to  any wage-loss disability  in excess of  an  impairment  rating,  the \nclaimant must prove by a preponderance of the evidence that  he sustained permanent \nphysical  impairment  as  a  result  of  a  compensable  injury.   Wal-Mart  Stores,  Inc.  v. \nConnell,  340  Ark.  475,  10  S.W.3d  727  (2000).    The  wage  loss  factor  is  the  extent  to \nwhich  a  compensable  injury  has  affected  the  claimant’s  ability  to  earn  a  livelihood.  \n\nDAVIS – G900272 \n \n10 \nEmerson  Elec.  v.  Gaston,  75  Ark.  App.  232,  58  S.W.3d 848  (2001).    In  considering \nfactors that may impact a claimant’s future earning capacity, the Commission considers \nhis  motivation  to  return  to  work,  because  a  lack  of  interest  or  a  negative  attitude \nimpedes the assessment of his loss of earning capacity.  Id.  The Commission may use \nits  own  superior  knowledge  of industrial  demands,  limitations,  and  requirements  in \nconjunction  with  the  evidence  to  determine  wage-loss  disability.   Oller  v.  Champion \nParts  Rebuilders,  5 Ark.  App.  307,  635 S.W.2d  276  (1982).     Finally,  Ark.  Code  Ann.  § \n11-9-102(4)(F)(ii) (Repl. 2012) provides: \n(a) Permanent  benefits  shall  be  awarded  only  upon  a  determination \nthat the compensable injury was the major cause of the disability or \nimpairment. \n \n(b) If  any  compensable  injury  combines  with a  preexisting  disease  or \ncondition  or  the  natural  process  of  aging  to  cause  or  prolong \ndisability  or  a  need  for  treatment,  permanent  benefits  shall  be \npayable for the resultant condition only if the compensable injury is \nthe major cause of the permanent disability or need for treatment. \n \n“Major cause” is more than fifty percent (50%) of the cause, and has to  be established \nby  a  preponderance of  the  evidence.    Ark.  Code  Ann.  §  11-9-102(14)  (Repl.  2012).  \n“Disability” is the “incapacity because of compensable injury to earn, in the same or any \nother  employment,  the  wages  which  the  employee  was  receiving  at  the  time  of  the \ncompensable injury.”  Id. § 11-9-102(8). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are  solely up to the Commission.  White v. Gregg Agricultural Ent., \n72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \n\nDAVIS – G900272 \n \n11 \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.  Id. \n Evidence–Testimony.  Claimant, who is 58 years old and a high school graduate, \nattended Southern Arkansas University, where he played football.  He left college for a \nyear;  and  during  that  period,  he  worked  in  shipping  and  pulpwood  hauling.    While  he \nreturned  to  SAU  thereafter,  he  failed  to  complete  his  studies  there,  accumulating \napproximately  100  credit  hours  toward  a  physical  education  degree.    Thereafter,  in \n1989,  he  joined  the  United  States  Army.    There,  he  worked  in  the  burgeoning  word \nprocessing  area,  performing  MS-DOS  and  JS2  commanding.    This  work  required  that \nhe have Top Secret Clearance. \n After  four  years  in  the  Service,  he  received  an  Honorable  Discharge.   Upon  his \nreturn to civilian life, he worked as a traffic agent for a chemical manufacturer for five to \nsix months.  In this job, he used a computer to dispatch trucks and coordinated the bills \nof lading.  He left for a more lucrative position at International Paper, where he worked \ninside the mill.  Claimant testified that this was a physical job, and lasted for four years.  \nThereafter, for approximately one year, he worked for a steel mill.  There, he strapped \nthe ends of T-posts that had been manufactured there.  This, too, was highly physical. \n Claimant’s next place of employment was at Respondent Weyerhauser.  At first, \nhe  was  a  utility  worker,  filling  in  at  various  assignments.   He  became  the  driver  of  a \npiece  of  heavy  equipment  that  loaded  logs.    After  eight  or  nine  years  in  this  position, \nClaimant became a boiler helper at Weyerhauser.  He described this job as follows: \n\nDAVIS – G900272 \n \n12 \nIt’s  your  responsibility  to  make  sure  the  boiler  has  enough  fuel  and \neverything  is  running  right.    It  consists  of  climbing  a  whole  lot  of  stairs, \nturning valves and all that kind of stuff and making sure you’ve got enough \nfuel in the boiler. \n \nThis job entailed use of a computer. \n On the stipulated date of injury, December 17, 2018, the following happened: \nWhat  I did  I  came  in  to  work  at 7:00  that evening,  and  so  we  have  to do \nmaintenance on the machines before  we can operate them, so I took the \nmachine  up  to  the  grease  rack,  and  I  started  doing  maintenance  and \nchecking  everything  to  make  sure  it  was  serviceable,  so  then  on my  way \nback, I was coming back to the boiler, and I noticed that the dry waste bin \nwhere they send the chips off of the plywood, it was running over, so I had \nto get off the Cat to go over there to stop it, so when I was getting off the \nCat, I don’t know if I just lost my balance or slipped or glove or grease or \nwhatever, and I was holding and I fell back. \n \nAs  a  result  of  this  incident,  Claimant  hurt  his  lower  back.    Respondents  accepted the \ninjury as compensable and have paid benefits to him as a result.  He was able to finish \nhis shift at the time of his injury; and he continued working until January 9, 2019. \n In  recounting  the  treatment  he  has  undergone,  Claimant  testified  that  he \nunderwent  six  to  eight  weeks  of  physical  therapy.    Because  this  did  not  help, \nRespondents  sent  him  to  Dr.  Schlesinger.    Initially,  his  treatment  by  Schlesinger \nconsisted  of  injections.    These,  however,  did  not  provide  lasting  relief.    Eventually,  on \nNovember  25,  2019,  he  underwent  a  transforaminal  decompression  and  fusion at  L5-\nS1.  Asked how he fared as a result of these procedures, Claimant responded:  “I had \nsome difficulties and then, after that, I suffer from a whole lot of numbness and pain in \nmy  back.    He  told  me  to  come  back,  so  I  went  back,  and  I  went  on  another  round  of \ninjections in my back.”  Asked whether the injections helped, Claimant’s response was \n\nDAVIS – G900272 \n \n13 \nterse:  “No.”  Claimant related that the surgery did not help, either.  In February of 2021, \nDr.  Schlesinger  recommended  another  operation:    an  L3-4  fusion.    But  Respondents \nrefused to cover it, and instead sent Claimant to Dr. Bruffett for an independent medical \nevaluation.  Although it was Claimant’s testimony that Bruffett never laid his hands upon \nhim to examine him during their ten-minute visit, he later acknowledged that  the doctor \nobserved his gait and asked him to stand and  to bend over.  Dr. Bruffett, as a result of \nthat appointment, found Claimant to be at maximum medical improvement and assigned \nhim an impairment rating of twelve percent (12%) to the body as a whole.  In describing \nhow  he  was  doing  at  the  time  of  this  release,  Claimant  stated:   “About  the  same  as \nwhen  I  went.    I  was  still  having  a  lot  of  pain  in  my  lower  back  and  down  my  hip  and \ndown  my  left  leg.”  Per  Claimant,  Dr.  Schlesinger  did  not  refer  him  elsewhere;  and  he \ndid not return to Schlesinger for additional treatment after going to Bruffett. \n Claimant  requested  and  received  a  change  of  physician  to  Dr.  Krishnappa \nPrasad.    There,  Claimant  underwent  pain  management  in  the  form  of  injections.    He \nunderwent  two  injections  before  being  informed  that  Respondents  would  no  longer \ncover  them.    Asked  whether  the  injections  helped,  Claimant’s  reply  was “[n]ot  really, \nno.”  Since  then,  Claimant  has  been  treating  at  the  Veteran’s  Administration.    This \ntreatment   has   been   comprised   of   prescriptions   of   Gabapentin,   Diclofenac,   and \nCyclobenzaprine.    These  are  taken  three  times  a  day.    An  additional  medication  that \nClaimant  takes  to  address  what  he  termed “severe  pain”  that  occurs  perhaps  twice  a \nweek  is  Hydrocodone,  which  is  prescribed  by  his  primary  care   physician.  His \nmedications make him drowsy.  Regardless, he rates his daily pain as 7/10. \n\nDAVIS – G900272 \n \n14 \n While  Claimant  was  still  treating  for  his  lower  back  injury,  in  2020,  Respondent \nWeyerhauser  terminated  him.    He  had  to  apply  for  leave  under  the  Family  Medical \nLeave  Act;  and  when  that  had  been  exhausted,  he  was  terminated.    Later,  on  cross-\nexamination,   Claimant   added   that he took   early   retirement,   at   age   55,   from \nWeyerhauser  in  May  2022.    He  stated  that  at  the  time  Dr.  Bruffett  released  him  from \ntreatment, he was still unable to perform his old job at Weyerhauser. \n His  testimony  on  direct  examination  was  that  he  has  not  performed  any  work \nsince December 2018.  On cross-examination, however, he agreed that the correct date \nis January 9, 2019.  Claimant successfully applied for Social Security Disability benefits.  \nHe  draws  a  pension  from  Respondent  Weyerhauser.    Claimant  has  not  been offered \nvocational rehabilitation.  While his job in the Army involved computers,  his stint in the \nmilitary  was  long,  long  ago,  and  the  work  primarily  entailed  printing  and  delivering \ndocuments.    He  has  not  kept  up  with  advances  in  technology.    Claimant  did not  use \ncomputers  at  Weyerhauser  other  than  such  tasks  as  entering  his  time.    His  personal \ncomputer is not operational.  He rarely has used email.  But he is able use a laptop for, \ninter alia, performing internet searches and using social media.  Claimant does not think \nthat there is any type of employment that he would be able to do.  He added that if such \na job exists, he is “going to be in pain doing it.”  He admitted that he has not looked for \nwork anywhere since leaving Weyerhauser. \n Notwithstanding   his   assignment   of   a   five-pound   lifting   restriction   by   Dr. \nSchlesinger, it is Claimant’s belief that he is able to lift up to 30 to 40 pounds.  Although \nrecently,  by  necessity,  he  had  to  lift  a  car  battery  in  order  to  place  it  in  the  engine \n\nDAVIS – G900272 \n \n15 \ncompartment of his vehicle, it is not a task that he could do on a daily basis.  Claimant \ncan stand for four to five minutes.  After that point, the pain  in his hip and leg becomes \n“unbearable.”  He  is  able  to  walk  a  quarter  of  mile  before  burning  in  his  legs  and  hip \nprompt him to sit.  Sitting is tolerable for approximately 30 minutes.  Use of a recliner at \nhome helps with this, since it allows him to switch positions, such as leaning to the side \nand  stretching  his  hip.  When  he  attended  the  church  funeral  of  his  sister,  the \nuncomfortable nature of the wooden pews rendered him physically unable to attend the \ngraveside  service  thereafter.    The  furthest  he  has  driven  since  the  accident  is  from \nSouth  Arkansas  to  Little  Rock.    When  making  a  journey  of  this  length,  he  has  to  stop \ntwice  in  order  to  stretch  because  of  back  pain.    In  order  to  ensure  that  he is  lucid \nenough to make this road trip, he has to cease his medications the day prior.  Once he \nhas  returned  home,  however,  he  has  to  take  Hydrocodone  along  with  his  three  other \nmedications  in  order  to  get  his  pain  back  under  control.  His  treatment  with  the  VA \nincludes addressing his hypertension.  However, neither this condition nor his previous \nknee surgery and surgical treatment for prostate cancer forms the basis for his inability \nto return to work; instead, that cause is his back injury. \n Turning  to  the  subject  of  hobbies,  Claimant  related  that  he  likes  gardening  and \ntaking care of his yard.  Unfortunately, due to his condition, this has been impaired.  He \nis unable to garden.  Mowing his half-acre-sized lot on his riding lawn mower takes one \nand one-half  to  two  hours  because  he has  to  take  multiple  breaks.    Even  with  breaks, \nhe  is “laid  up”  for  a  day  or  two  thereafter.    While  he  still  fishes,  he  does  so  less \n\nDAVIS – G900272 \n \n16 \nfrequently than before his back was injured.  Questioned why this is the case, Claimant \nreplied: \nBecause it’s  too  much  pain  and  too  much  trouble  to  get  .  .  .  [u]sually,  I \nhave to try to find somewhere where I can sit down or something like that, \nyou know, or a place where I can just back my truck up to and  sit on the \ntailgate  of my truck or  something,  and  whatever  you do,  you’re  not going \nto do it for long, anyway.  Maybe I might be able to do it for maybe an hour \nor so, not long. \n \nIn describing his daily activities, he stated:  “Really, I’ve been kind of reduced to almost \ndoing nothing.  I piddle around the house.  I hardly ever go anywhere.  I hardly ever do \nanything now.”  He walks for exercise.  Claimant is still able to cook, wash dishes, and \ndo his laundry. \n In  order  to  have  the  boiler  helper  position  at  Weyerhauser,  Claimant  had to \npossess  a  boiler  operator’s  license.    His  license  has  since  lapsed.    Asked  if  he  is \nphysically capable of going back to that line of work, he responded: \nNo . . . [b]ecause the boiler helper job is to keep—you have to keep what \nthey  call  a  fire  box,  that’s  where  you’re  burning  all  of  your  fuel  and  stuff, \nyou,  also,  have  to  keep  that  cleaned  out.    When  you  burn  that  fuel  in \nthere, it’ll build up a big slag on the floor and you have to get this rake that \nweighs  about  a  hundred  pounds and  put  it  in  that  boiler  and  you have to \nbreak—[y]ou’ve  got  to  put  a  fire  suit  on  .  .  .  [a]nd  you  have  to  break, \nphysically  break  that  stuff  up  and  sometimes  if  it  gets  real  bad,  it  could \ntake  you  like  maybe  an  hour  or  so  to  get  it  out  .  .  .  [w]hen  you  monitor \nthem monitors, you still have to run up and down the stairs and go make \nadjustments on those valves and stuff like that, also. \n \n Evidence–Medical  Records.    Claimant’s  Exhibit  1  details  the  treatment  he  has \nundergone in connection with his compensable injury. \n As Claimant outlined in his testimony, he did not first seek treatment for his back \nuntil  approximately  three  weeks  after  the  accident,  on  January  9,  2019.    His initial \n\nDAVIS – G900272 \n \n17 \ntreatment was conservative in nature:  medication and physical therapy.  A lumbar MRI \non March 22, 2019, revealed, per Dr. Elizabeth Sullivan: \nSevere  central  canal  stenosis  at  the  L3-4  from  combination  of  advanced \ndegenerative disc disease with osteophyte as well as epidural lipomatosis.  \nThere  is  swelling  of  the  cauda  equina  proximal  to  this.    Advanced \ndegenerative   disc   disease   with   osteophyte   at   L5-S1   with   bilateral \nforaminal  stenosis.    Moderate  diffuse  disc  bulge  with  acquired  central \ncanal stenosis and epidural lipomatosis at L4-5.  Marrow signal change at \nthe L3 and L4 presumed to be reactive from degenerative disc disease. \n \nSullivan  on  April  17,  2019,  recommended  epidural  steroid  injections  along  with  a \nprescription of Gabapentin. \n When   the   injections   did   not   afford   Claimant   relief,   he   was   seen   by   Dr. \nSchlesinger,  Dr.  Sullivan’s  colleague,  on  June  25,  2019.   Schlesinger’s  report  reads  in \npertinent part: \nMRI \nA[n]  MRI  of  the  Lumbar  Spine  has  been  obtained  prior  to  this  visit.    The \nstudy was performed on 03/22/2019[.] \n \nA decision was made to personally read and interpret the multiple images \nof the studies.  This reading was from the perspective of a Neurosurgeon \nand  not  a  Radiologist.    My  personal  reading  of  the  multiple  individual \nimages  was  very  thorough  and  detailed  and  was  carried  out  with  the \nclinical  knowledge  of  the  patient  and  comparing  to  the  imaging  data.    I \npersonally read and interpreted the study as abnormal with the finding of: \n \nSevere   degenerative   changes   at   L3-S1   there   is   lumbar   epidural \nlipomatosis  which  is  severe  at  L4-5  and  L3-4.    There  is  significant \nclumping of the lumbar nerve roots.  There is significant disc protrusions at \nL3-S1.    There  is  significant  stenosis  at L3-4 L4-5 and moderate at L5-S1 \nthere  is  severe  neural  foramen  stenosis  at  L5-S1  bilaterally  moderate \nneuroforaminal  stenosis  at  L4-5  bilaterally  and  moderate  least  severe  at \nL3-4  bilaterally.    Most  significant  findings  that  seem  to  correlate  with  the \npatient’s  pain  distribution  include  the  L3-4  level  plus  or  minus  L4-5 \nincluding  the  potential  contribution  of  the  L3-4  neural  foramen  stenosis \n\nDAVIS – G900272 \n \n18 \nbilaterally   but   obvious   that   I   am   still   concerned   about   the   L5-S1 \nneuroforaminal stenosis bilaterally. \n \n. . . \n \nDiagnosis: \nI believe the patient’s diagnosis is: \n1. Low Back Pain (M54.5) \n2. Obesity (E66.9) \n3. Pain in leg (M79.606) \n4. Osseous and subluxation stenosis of intervertebral foramina \nof lumbar region (M99.63) \n5. Spinal stenosis (M48.00) \n6. Intervertebral disc degeneration, lumbar region (M51.36) \n7. Lipomatosis (E88) \n \nPlan: \nA  decision  was  made  to  proceed  with  Lumbar  facet  injections—blocks  at \nL3-4, 4-5, and 5-1 on the left. \n \nA  decision  was  made  to  discuss  the  importance  of  obesity  in  their  spinal \ncondition  as  well  as  their  overall  health  and  well-being.    I  feel  that  the \npatient’s  obesity,  BMI  and  body  habitus  are  major  contributing  factors  to \ntheir  spinal  condition.    I  strongly  recommend  that  the  patient  undergo  an \naggressive weight loss program and have advised the patient of this plan. \n \nAlthough  the  accident  or  injury  may  or  may   not  have  caused  any \nradiological changes, I do feel that if the patient history is accurate and the \nsymptoms  all  started  with  the  accident  then  there  is  a  greater  than  51% \nchance  that  the  accident  did  in  fact  cause  the  symptoms  a[nd]  was \ntherefore the cause of the recommended treatment. \n \nWe will have the patient remain off work if there is no light duty available \nuntil after treatment is completed. \n \nSummary: \nThis   54-year-old   male   presents   with   lower   back   pain   is   the   main \ncomplaint.  He does have sciatica involving his L4 nerve root bilaterally left \nworse  than  right  but  the  back  pain  bothers  him  worse.    He  has  multiple \nabnormalities  on  MRI.    I  doubt  any  of  these  were  directly  caused  by the \nwork  injury  but  based on  his  history  the  symptoms  started  so  this  is  very \nlikely an aggravation of an underlying lumbar degenerative process. \n \n\nDAVIS – G900272 \n \n19 \nThis  is  back  pain  is  the  main  problem  we  will  proceed  with  lumbar  facet \nprotocol.  If this fails we will repeat the MRI of the lumbar spine and begin \nserial  selective  nerve  root  block  testing  on  the  left  starting  at  the  L5-S1 \nneuroforamen  but  then  proceeding  to  the  L3-4  neuroforamen  and  then \npossibly  the  L4-5  right  certainly  his  case  is  extremely  complicated.    If \npossible would like to avoid surgery. \n \nClaimant returned to Dr. Sullivan on August 20, 2019, and told her that neither the facet \ninjections  nor  the  Gabapentin  helped.    A  neuroforaminal  block  at  L5-S1,  along  with \nTizanidine  and  continued  Gabapentin,  were  ordered.    The  block,  per  Claimant  on \nOctober  29,  2019,  helped  for  two  days;  but  it  pinpointed  L5-S1  as  the origin  of  his \nproblems.  Dr. Schlesinger recommended an LSO brace and surgery in the forms of a \ndecompression and fusion at L5-S1. \n A  laminectomy,  decompression,  and  fusion  at  this  site  took place  on  November \n25, 2019.  The pre and post-operative diagnoses assigned by Dr. Schlesinger were: \n1.  L5/S1 neuroforaminal stenosis, bilaterally, and spinal cord stenosis \nL5 and S1 \n2.  Segmental instability L5/S1 \n \nClaimant  told  Schlesinger  on  December  19,  2019,  that  while  he  had  experienced \nmoderate  relief  from the  surgery,  he  still  was  having  constant  lower  back pain and  left \nfoot numbness.  An epidural steroid injection at L4-5 was recommended.  He underwent \nanother MRI on February 17, 2020, which showed: \n1. Interval  surgical  intervention  at  the  L5-S1  level  with  left-sided \nhemilaminectomy/facetectomy  defect  and  interbody  fusion.    There \nis retrolisthesis, a broad-based disc displacement, which is mixed in \nthe biforaminal positions and moderate to severe facet hypertrophy \ncontributing  to  the  abutment  of  bilateral  exiting  L5  nerves  with \npossible compression bilaterally. \n\nDAVIS – G900272 \n \n20 \n2. Retrolisthesis,  a  broad-based  disc  displacement  and  moderate \nfacet  hypertrophy  at  the  L4-5  level  contributing  to  the  abutment  of \nbilateral descending L5 nerves. \n3. Disc height loss, a broad-based disc displacement with central and \nright  foraminal  predominance  and  mixed  left  foraminal  protrusion, \nmoderate  facet  hypertrophy  and  epidural  lipomatosis  at  the  L3-4 \nlevel  contributing  to  moderate  canal  stenosis  with  abutment  of \nbilateral exiting L3 nerves and abutment of bilateral descending L4 \nnerves. \n \n Dr.  Schlesinger  saw  Claimant  again  on  February  25,  2020,  and  wrote  that  they \nwould proceed with lumbar medial branch blocks at L3-4 and L4-5 on the left, and then \na rhizotomy.  An EMG was ordered as well to determine the source of lower extremity \nnumbness.  While the nerve conduction study was abnormal, the doctor attributed it to \nmetabolic causes.  The report of June 17, 2020, reads in pertinent part: \nDue to  the  deterioration  of  his  left  leg  pain  that  is  consistent  with  L3-4 \ndistribution,  we  will  obtain  a  new  MRI  of  the  lumbar  spine.    On  the  prior \nstudy,  he  had  moderately  severe  left  sided  neuroforaminal  stenosis.    We \nwill formulate a plan of action after reviewing the new MRI.  If the patient is \nnot  a  surgical  candidate,  he  may  ultimately  need  to  meet  with  pain \nmanagement. \n \nThe MRI took place on July 14, 2020.  It was of poor quality, but reflected unremarkable \nchanges at L5-S1, moderately severe stenosis at  that level and at L3-4, and moderate \nstenosis  at  L4-5.  Because  of  the  COVID-19  pandemic,  the  facet  protocol  never \noccurred.  But Dr. Schlesinger opined that Claimant’s increased left leg pain was due to \nabnormalities at L3-4.  On August 4, 2020, the doctor wrote: \nThe  patient  states  that  he  has  been  terminated  from  work.    If  light  duty \nwere available then he could obtain a new job that he could attempt to do.  \nI  have  no  way  of  giving  a  maximum  medical  improvement  date  until  we \nsee what is the underlying treatment plan. \n \n\nDAVIS – G900272 \n \n21 \nSchlesinger  ordered  root  blocks  at  L3-4  and  L4-5.    The L4-5  block  took  place  on \nSeptember 3, 2020.  He reported a twenty percent (20%) decrease in pain thereafter—\nnot enough, in his opinion, to warrant surgery.  The L3-4 block took place on October 8, \n2020.  Claimant reported to Schlesinger on October 15, 2020, that he received no relief \nfrom the injection.  The doctor wrote: \nWhen  he  underwent  a  left  L4-5  SNRB  [selective  nerve  root  block]  on \n9/3/20, he did  feel  a  reproduction of his  typical  leg  pain  but unfortunately \nonly had about 20% relief.  It is possible that not enough local anesthetic \nwas  used  and  we  will  repeat  this  SNRB  at  L4-5  with  a  higher  amount  of \nbupivacaine.    If  the  SNRB  testing  indicates  that  the  left  L4  nerve  root  is \nsignificantly the problem then we can proceed with decompression of L3-\nL4 on the left hopefully without a fusion. \n \n The revision nerve root block of L4-5 happened on November 12, 2020.   In this \ninstance, Claimant reported having seventy percent (70%) relief following the injection—\nenough,  in  his  opinion,  to  justify  surgery.   Another  lumbar  MRI  on  January  14,  2021.  \nAfter  reviewing  everything  and  visiting  with  Claimant  on  February  10,  2021,  Dr. \nSchlesinger  recommended  that  he  undergo  a  left  L3-4  decompression.    However, \nfollowing  another  appointment  on  February  24,  2021,  the  doctor  also recommended  a \nWenzel fusion at that level. \n As  recounted  in  the  testimony  above,  this  surgery  never  took  place.    Instead, \nClaimant  was  sent  to  Dr.  Bruffett  on  August  9,  2021,  for  an  independent  medical \nevaluation.  Bruffett’s report reads in pertinent part: \nI would like to answer the questions posed for this IME[.  T]he diagnosis is \npost   laminectomy   syndrome   status   post   fusion[.      H]e   has   multiple \ndegenerative  changes  and  epidural  lipomatosis  as  described  above.   I \nbelieve as a consequence of his work injury there was an exacerbation of \nthese  degenerative  changes.    I  would  say  that  his  work  injury  and \n\nDAVIS – G900272 \n \n22 \nsubsequent  surgery  accounted  for  greater  than  51%  of  his  ongoing \nproblems  and  pain  and  so  forth.    Disability  is  a  different  question.    That \nhas  to  do  with  one’s  ability  to  work  in  my  opinion  and  there  are  many \ncomplex  components  of  this  including  job  satisfaction,  and  so  forth.    I  do \nbelieve  he  is  at  maximum  medical  improvement.   I  do  not  feel  that \nfurther  treatment  is  indicated.    He  does  not  need  further  surgery[.]  \n[B]ased   on   the   American   Medical   Association   [G]uides   to   the \n[E]valuation   of   [P]ermanent   [I]mpairment   [F]ourth   [A]ddition[,] I \nwould assign him an impairment rating of 12% of the whole person.  I \nwould not place any restrictions upon him.   However, I am sure that \nhe  has  some  limitations.    He  has  not  worked  in  several  years.    The \nmedical literature would say that his likelihood of returning to gainful \nemployment  now  is  slim  to  none.    We  could  obtain  a  functional \ncapacity  evaluation  to  define  his  capabilities,  but  I  do  not  think  that \nwe will change his long term working status.  He does not feel like he \nis  capable  of  working  an  8-hour  day  in  any  capacity  and  he  has  not \nworked in years so I doubt that he returns to the workforce.  He may \njust  want  to  talk  to  his  attorney  about  whether  he  qualifies  for  [Social \nS]ecurity disability or not. \n \n(Emphasis added) \n On May 16, 2022, Claimant began seeing Dr. Prasad for pain management.  He \nwas  prescribed  Norco  and  Gabapentin,  and  recommended  for  an  epidural  steroid \ninjection  at L4-5.    The  doctor  administered  trigger  point  injections  at  three  sites  during \nthe appointment. \n Discussion.  The evidence at bar shows that Claimant is 58 years old.  He has a \nhigh  school  diploma,  and  completed  approximately  100  credit  hours  toward  a  college \ndegree.    Between  stints  at  Southern  Arkansas  University,  he  had  jobs  in  shipping  and \npulpwood hauling.  After leaving school for good, he entered the U.S. Army and served \nin the word processing area.  He had Top Secret Clearance in order to work in this area.  \nFollowing an Honorable Discharge, Claimant was a traffic agent for a chemical plant.  In \nthis capacity, he utilized a computer to coordinate bills of lading and to dispatch trucks.  \n\nDAVIS – G900272 \n \n23 \nThereafter, he worked in various capacities in a paper mill.  Later, he was employed in a \nsteel  mill,  performing  a  heavily  physical  job.    After  leaving  this  position,  he  joined \nRespondent  Weyerhauser.    He  rotated  through  various  positions  before  becoming the \noperator  of  a  piece  of  heavy  equipment  that  loaded  logs.    Eventually,  he  became  a \nboiler helper.  Not only did this area of work require that he have a boiler’s license, but it \nrequired  physical  activities  such  as  raking  out  a  firebox  and  going  up  and down  steps \nthroughout the shift. \n It  was  in  this  last  job  that  he  sustained  a  stipulated  compensable  injury  to  his \nback  on  December  17,  2018.    For  the  next  11  months,  Claimant  underwent  various \nconservative  measures  to  address  his  symptoms,  from  physical  therapy  to  injections.  \nUltimately,  he  had  to  undergo  surgery  in  the  forms  of  a  laminectomy,  decompression \nand fusion at L5-S1.  Unfortunately, these procedures were only moderately successful.  \nThereafter,  he  continued  to  suffer  from,  inter  alia,  back  pain  and  numbness  in  his  left \nfoot.    After  administering  additional  injections  and  having  Claimant  undergo  other \ndiagnostic  procedures,  his  surgeon,  Dr.  Schlesinger,  recommended  a  decompression \nand  fusion  at  another  level:    L3-4.    However,  Respondents  refused  to  cover this  and \nsent  Claimant  to  Dr.  Bruffett  for  an  independent  medical  evaluation.   Bruffett  assigned \nhim an impairment rating of twelve percent (12%) to the body as a whole. \n While   the   doctor   did   not   give   Claimant   any   permanent   restrictions,   he \nnonetheless  expressed  misgivings  about  whether  he  could  or  at  least  would  return  to \nthe  workforce.    Based  on  the  extended  length  of  time  that  Claimant  had  been  absent \nfrom the working world, Bruffett candidly stated that per “the medical literature \n\nDAVIS – G900272 \n \n24 \n .  .  .  his  likelihood  of  returning  to  gainful  employment  now  is  slim  to  none.”  He  added \nthat  because  of  this,  a  functional  capacity  evaluation  would  not  be  useful,  and \nrecommended  that  Claimant  might  wish  to  pursue  Social  Security  Disability  benefits.  \nDr. Schlesinger, on the other hand, was more optimistic regarding Claimant's prospects.  \nHe wrote in multiple reports that “[i]f light duty were available then he could obtain a new \njob  that  he  could  attempt  to  do.”  Of  course,  this  possibility  was  foreclosed  at \nWeyerhauser when he  was terminated from there.    Regardless of this, Claimant opted \nfor  early  retirement  from  there.  He  acknowledged  that  he  is  able  to  lift  up  to  30  to  40 \npounds, and has demonstrated this by replacing a car battery by himself. \n Claimant’s back condition would keep him from having another job that entailed \nphysical  work  on  a  par  with  what  he  was  performing  at  Weyerhauser  or  any  similar \npositions in his employment history.  He is currently undergoing pain management.  His \nregimen includes medications that make him drowsy.  Despite this protocol, he still has \npain.  Claimant’s condition  requires  him to alternate positions of standing and sitting in \norder to have some level of comfort or tolerance.  He is able to walk some and fish for \nrecreation; and he continues to handle household tasks.  Claimant still operates a riding \nlawn  mower;  but  his  condition  necessitates  more  frequent  breaks.  Claimant’s  less \nphysical jobs have involved the use of a computer.  He is able to operate a laptop. \n I  find,  after  consideration  of  Claimant’s  testimony,  that  he  is  not  motivated  to \nreturn  to  the workforce.    While  he  has  not  met  his  burden  of  proving  that  he  is \npermanently and totally disabled, the preponderance of the evidence does establish that \n\nDAVIS – G900272 \n \n25 \nhe  has  suffered  wage  loss  disability  of  thirty-five  percent  (35%).    Moreover,  his \nstipulated compensable back injury is the major cause of this disability. \nC. Controversion \n Introduction.    Claimant  has  asserted  that  he  is  entitled  to  a  controverted \nattorney’s fee in this matter. \n Standard.    One  of  the  purposes  of  the  attorney's  fee  statute  is  to  put  the \neconomic  burden  of  litigation  on  the  party  who  makes  litigation  necessary.   Brass  v. \nWeller,  23  Ark.  App.  193,  745  S.W.2d  647  (1998).    In  this  case,  the  fee would  be \ntwenty-five  percent  (25%)  of  any  indemnity benefits  awarded  herein,  one-half  of  which \nwould be paid by Claimant and one-half to be paid by Respondents in accordance with \nSee Ark. Code Ann. § 11-9-715 (Repl. 2012).  See Death & Permanent Total Disability \nTrust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have \ncontroverted   Claimant’s   entitlement  to  additional   indemnity   benefits—included the \neighteen  percent  (18%)  amount  awarded  above  due  to  their  failure to  pay  permanent \npartial disability benefits in a timely manner.  Thus, the evidence preponderates that his \ncounsel, the Hon. Laura Beth York, is entitled to the fee as set out above. \nCONCLUSION AND AWARD \n Respondents are directed to furnish/pay benefits in accordance with the findings \nof fact and conclusions of law set forth above.  All accrued sums shall be paid in a lump \nsum  without  discount,  and  this  award  shall  earn  interest  at  the  legal  rate until  paid, \n\nDAVIS – G900272 \n \n26 \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a twenty-five  percent  (25%) attorney’s  fee \nawarded herein, one-half of which is to be paid by Claimant and one-half to be paid by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":48483,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G900272 GLENN D. DAVIS, EMPLOYEE CLAIMANT WEYERHAUSER NR CO., SELF-INUSRED EMPLOYER RESPONDENT SEDGWICK CLAIMS MGMT. SVCS., INC., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED MARCH 5, 2024 Hearing before Administrative Law Judge O. Milton Fine II on Dec...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","lumbar","hip","knee"],"fetchedAt":"2026-05-19T22:55:57.193Z"},{"id":"alj-H304280-2024-03-05","awccNumber":"H304280","decisionDate":"2024-03-05","decisionYear":2024,"opinionType":"alj","claimantName":"Larry Zintel","employerName":"Pulaski County Road & Bridge","title":"ZINTEL VS. PULASKI COUNTY ROAD & BRIDGE AWCC# H304280 MARCH 5, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ZINTEL_LARRY_H304280_20240305.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ZINTEL_LARRY_H304280_20240305.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H304280 \n \nLARRY M. ZINTEL, \nEMPLOYEE                                                       CLAIMANT \n \nPULASKI COUNTY ROAD & BRIDGE, \nEMPLOYER                                                                              RESPONDENT \n \nAAC RISK MG’T SERVICES, \nCARRIER/TPA                                                                                 RESPONDENT \n \n \nOPINION FILED MARCH 5, 2024 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative  Law  Judge  (ALJ)  Mike  Pickens,  on  December  6,  2023, in  Little  Rock,  Pulaski \nCounty, Arkansas. \n \nThe  claimant  was  represented  by  the  Honorable Mark  Alan  Peoples,  Peoples  Law  Firm,  Little \nRock, Pulaski County, Arkansas. \n \nThe  respondents  were  represented  by  the  Honorable  Melissa  Wood,  Worley,  Wood  &  Parrish, \nLittle Rock, Pulaski County, Arkansas.     \n \nINTRODUCTION \n In  the  prehearing  order  filed  October  31,  2024,  the  parties  agreed  to  the  following \nstipulations, which they affirmed on the record at the hearing.  \n1. The Commission has jurisdiction over this claim. \n2. The employee-employer-carrier relationship existed at all relevant times including \non January 18, 2022, when the claimant alleges he sustained a compensable injury \nto his lower back/lumbar spine \n \n 3.    The claimant earned an average weekly wage of $744.40, which entitles him to \n            weekly indemnity rates of $496.00 for temporary total disability (TTD), and \n             $372.00 for permanent partial disability (PPD) if the claim is deemed compensable. \n \n4. The respondents have controverted this claim in its entirety.   \n \n5. The  parties  reserve  any  and  all  other  issues  not  litigated  herein  for  future \ndetermination and/or litigation. \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n2 \n   \n(Commission Exhibit 1 at 2; Reporter’s Transcript at 6; 59). Pursuant to the parties’ mutual \nagreement, the issues litigated at the hearing were: \n1.  Whether the claimant sustained a compensable injury to his lower back/lumbar \n   spine on January 18, 2022. \n \n2.  If the claimant’s alleged lower back/lumbar spine injury is deemed compensable, \n    the extent to which he is entitled to medical benefits, and to TTD benefits beginning \n      on January 19, 2022, and continuing through a date yet to be determined. \n \n3.    Whether the claimant’s attorney is entitled to a controverted attorney’s fee on these \n   facts. \n \n(Comms’n Ex. 1 at 2; T. 6; 59) \n \n The claimant contends that on January 18, 2022, he sustained a compensable injury to his \nlower back/lumbar spine when he was involved in a motor vehicle accident (MVA) while in the \ncourse and scope of his employment. He contends he is entitled to medical treatment, and related \nexpenses; to TTD from the date of the injury through a future date yet to be determined, as well \nas to a controverted attorney’s fee. (See, Claimant’s Prehearing Questionnaire Response  filed \nOctober 9, 2023; and Claimant’s Post-Hearing Response Brief). \n First,  the  respondents  contend  the  claimant  was  not  engaged  in  the  performance  of \n“employment services” at the time of his alleged lower back/lumbar spine injury and, therefore, \nthe  injury  cannot  be  deemed  “compensable”  within  the  Act’s  meaning.  Alternatively,  the \nrespondents contend the claimant did not sustain a compensable injury on January 18, 2022, since \nthere exist no objective findings of any traumatic injury in the relevant medical records. Third, the \nrespondents  contend  that  even  if  his  alleged  lower  back/lumbar  spine  injury  is  deemed \ncompensable, the  claimant’s  treating  physician  opined  he  reached  maximum  medical \nimprovement (MMI) on April 12, 2022, and, therefore, he is not entitled to any TTD benefits after \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n3 \nthis date. (See, Respondents’ Prehearing Questionnaire Response filed September 18, 2023; and \nthe Respondents’ Post-Hearing Brief). \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the parties’ prehearing questionnaire responses cited supra, \nand the parties’ post-hearing briefs and any and all responses and/or replies thereto, all of which \nhave been blue-backed and hereby made a part of the hearing record. The record specifically does \nnot include the PCRB holiday work schedule Internet/website link cited on page 2 of the claimant’s \npost-hearing brief; however, the ALJ does take administrative/judicial notice that the day before \nthe  subject  accident,  Monday,  January  17,  2022,  was  both  a  state  and  federal  holiday,  namely \nMartin Luther King, Jr. Day. \nSTATEMENT OF THE CASE \n The  claimant,  Mr.  Larry  Zintel  (the  claimant),  is  45  years  old.  He  worked  for  Pulaski \nCounty Road & Bridge (PCRB) as a senior operator for about nine (9) years and six (6) months, \nwhich he testified is a position similar to a crew chief. (T. 11-12). In addition to his supervisory \nduties,  the  claimant  described  his  job  as  a  senior  operator  as  physically  demanding  since  it \ninvolved, “shoveling asphalt, raking asphalt and rock, raking what we call  Class  7  SB-2,  jack-\nhammering-out a hole in the road to put asphalt into it, anything from climbing up on equipment \nto run it, to being on top of chip box giving hand signals for a driver to dump chips into it so we \ncan resurface the road with chip.” (T. 11-13; 22-23). His working hours were from 7 a.m. to 5:30 \np.m., Monday through Thursday. The claimant testified that on occasion he would get called into \nwork outside of his scheduled hours at any time of the day or night, for example when there was \ninclement weather, icy roads, storms, and similar incidents in order to sand and clear the roads. (T. \n12-13; 23).          \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n4 \n On the morning of January 18, 2022, the claimant testified he was on his way to work when \nhe was involved in an MVA. He testified under oath he received a call from his supervisor, foreman \nGary Ellis (whose name is actually Gary Ellison), at about 6:20 a.m. instructing him to drive by \nand  pick  up  a  co-worker  named  David  Jones,  who  needed  a  ride  to  work.  (T.  11-14;  24;  38). \nSpecifically, the claimant testified:   \nI was driving in to work, my phone rang. I was it was Forman Gary [Ellison], and \nI went to reach for it and couldn’t reach it, so I had to pull over, get my phone. I \nanswered it and Gary was instructing me I need to go pick up David Jones because \nhis ride was not able to come in to work.   \n \n(T. 13) (Bracketed material added). The claimant testified it was not his understanding Foreman \nEllison was asking him to perform a personal favor. (Id). The claimant testified, “I took it as he \nneeded me to go pick up a fellow employee on my was in to work and bring him to work, which, \nin turn, I’d have to drive past the job, go pick him up and come back.” (Tr. 14). The claimant did \nnot believe he had a choice as to whether he could agree or refuse to pick up Mr. Jones. (Id). \n The claimant further testified he talked to Mr. David Jones that morning to let him know \nhe was on his way to pick him up. (T. 26). The claimant said he took Foreman Jones’s instruction \nto retrieve Mr. Jones and bring him to work as a directive from his supervisor and, again, he did \nnot believe he had a choice as to whether he could make his own decision as to whether to pick up \nMr. Jones. (T.13-14).   \n The claimant explained that in order to pick up Mr. Jones he had to drive past the PCRB \noffice. (T. 25). He was about two (2) miles away from Mr. Jones’s house when he was involved \nin  the  MVA.  (T.  14-15;  26).  The  claimant  testified  under  oath  he  agreed  the  police  report \nintroduced at the hearing accurately reflects how the accident happened and that the Emergency \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n5 \nMedical Services ambulance (EMS, or the ambulance) arrived at the accident scene at 6:44 a.m., \nbut testified the ambulance did not transport him anywhere. (T. 31). He further testified the police \nreport  further  reflects  he  advised  the  officer  he  had  sustained  no  injuries  in  the  MVA,  and  he \nadmitted that is what the told the officer because, “That’s how I felt at the time.” (Claimant’s \nExhibit 2 at 11; T. 31-32).   \n Scott Seymour, the PCBR asphalt superintendent, testified under oath at the hearing on the \nrespondents’ behalf.  He  testified  he  usually  arrives  at  work  at  around  6:25  a.m.  (T.  34).  He \nexplained that on the morning of January 18\nth\n, 2022, he got a call from Mr. Zintel at about 6:35 \na.m. or 6:40 a.m., who told him he had been involved in a bad accident on Roosevelt Road. Mr. \nSeymour testified he did not instruct the claimant to pick up David Jones nor, to his knowledge, \ndid anyone else in management instruct the claimant to do so. (T. 35).  Gary Ellison (whom the \nclaimant referred to in his testimony as “Gary Ellis”) was terminated for calling another employee \na racial slur, and he would consider him to be a “disgruntled” employee. (T. 38). Mr. Ellison did \nnot testify at the hearing. \n David  Jones,  who  is  a  PCRB  construction  worker,  testified  he  usually  had  a  co-worker \nnamed Michael Needham take him to work. (T. 41-42). Mr. Jones testified he was the one who \nasked the claimant to give him a ride to work because Mr. Needham was off work. (T. 42-43). Mr. \nJones went on to explain that the date before the accident (which was Monday, January 17, 2022) \nMr. Needham, who usually gave him a ride to work, was off work, so he asked the claimant “that \nevening” (i.e., Monday, January 17, 2022) if the claimant could give him a ride to work the next \nmorning (i.e., Tuesday, January 18, 2022). (T. 43-44). Mr. Jones said asking a coworker to pick \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n6 \nhim up and take him to work is not something that would require a supervisor’s permission. (T. \n44).   \n       Mr. Jones testified the claimant called him on the day of the MVA, after it had occurred; \nbut  said  he  did  not  talk  to  the  claimant  the  morning  of  the  MVA  (Tuesday,  January  18,  2022) \nbefore the accident occurred. Mr. Jones testified he had only talked to the claimant in person the \nevening before the date of the MVA (Monday, January 17, 2022) when he asked the claimant in \nperson if he could give him a ride to work the next day – January 18, 2022 – which was the day \nthe MVA occurred. (T. 43-44).   \n On cross-examination the claimant’s attorney pressed Mr. Jones, attempting to clarify his \ntestimony:   \n Q. You called Mr. Zintel the night before and asked him to come pick you up the next \n            day. Is that your testimony? \n \n A. I talked to Mr. Zintel that evening. \n Q. At work?   \n A. Yes.   \n Q. On Martin Luther King’s birthday? \n A. Sir, I don’t recollect what it was as far as a birthday. I don’t recollect what it was.  \n \n Q. The County Road and Bridge Department, is it open on Martin Luther King’s  \n  birthday? \n \nA. I can’t recall, sir.  \n \n Q.   Are you still employed with Pulaski County Road and Bridge? \n A. Yes, sir, I am. \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n7 \n Q. Did anybody tell you how to testify here today? \n A. No, sir, they did not. \n Q. All right.   \n(T. 46).   \n        A little bit before Noon on the same day of the 1/18/2022 MVA, the claimant presented \nhimself  to  the  emergency  room  (ER)  complaining  of  neck,  shoulder,  and  hip  pain.  He  was \ndiagnosed with a cervical strain, prescribed narcotic pain medication, and released. (CX1 at 1-5). \nOn  April  7,  2022,  the  claimant  underwent  cervical  and  lumbar  spine  MRIs  at  Baptist  Hospital, \nwhich will be discussed in more detail below. (CX1 at 7-9)   \n       The  claimant  underwent  a  lumbar  MRI  on  April  7,  2022,  which  the  radiologist  Dr. \nRaymond Peeples interpreted as follows: “No evidence of acute lumbar spine injury.  Lower \nlumbar  degenerative  findings  are  present,  superimposed  on  mild  diffuse  narrowing  of  the  bony \nspinal canal secondary to short pedicles, as detailed above.” (CX1 at 7-9; RX1 at 1). Consequently, \nin a note dated April 19, 2022, Dr. Robert Ritchie of Concentra opined the claimant suffered from \n“chronic” neck and back pain and that he reached MMI as of April 12, 2022. (RX1 at 5; 2-5). \n Thereafter,  the  claimant  underwent  physical  therapy  (PT)  and  was  treated  with  pain, \nmuscle  relaxant,  and  anti-inflammatory  medications  including  Tramadol,  Gabepentin,  Robaxin, \nand Dicolfenac, although he did not take the Tramadol while working. (CX1 at 10). Because of \nhis  continued  neck  and  lower  back  pain  complaints,  the  claimant  was  evaluated  by  and  treated \nwith orthopedic specialists at Arkansas Spine and Pain and OrthoArkansas. (CX1 at 10-27). \n The  claimant  eventually  came  under  the  care  of  Dr.  I.U.  Onyekwela  (Dr.  O)  of \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n8 \nOrthoArkansas  in  August  of  2023,  for  his  continuing  complaints  of  lower  back  pain  and \nradiculopathy. Dr. O ordered an MRI. The claimant underwent this MRI on September 18, 2023, \nwhich was not inconsistent with the April 7, 2022, MRI, and was interpreted as follows: “Bilateral \npars defect L5-S1 with grade 1 anterolisthesis. Neural foraminal stenosis worse on the right at L5-\nS1.” (CX1 at 19; RX1 at 6). Believing the L5 pars defect to be the cause of the claimant’s lower \nback  pain,  on  September  26,  2023,  Dr.  O  performed  surgery  on the claimant’s lumbar  spine  to \nalleviate the claimant’s lower back pain. (CX1 at 25-27).   \n        There exists no evidence in the record the claimant suffered from chronic lower back pain \nbefore the subject MVA of January 18, 2022, or that the cause of his continued lower back pain in \nthe days, weeks, and months after the 1/18/2022 MVA and the 9/23/2023 surgery was the result \nof some independent, intervening incident that happened at some point after the MVA. (T. 20-21; \nCX1 at 1-29; RX1 at 1-6). \n The  respondents  requested  that  Dr.  Ryan  Fitzgerald,  an  Arkansas-licensed  radiologist \nassociated  with  Fitzgerald  Medical  Consulting,  LLC,  review  the  original  films/media  of  the \nclaimant’s various diagnostic tests as set of in his written report dated November 28, 2023. (RX1 \nat 7-8). Dr. Fitzgerald concluded his report by stating: \nIn summary, MRI exams obtained in April 2022 and August 2023 showed, on my \npersonal  review,  no  evidence  of  an  acute  traumatic  injury.  Instead,  both  exams \nrevealed multiple potential degenerative pain generators independent of the subject \nevent [i.e., the Tuesday, January 18, 2022, MVA]. \n   \n(RX1 at 8; 7-8) (Bracketed material added). \n \n The claimant testified he has not returned to work since the January 18, 2022, MVA, and \nthat he does not believe he is physically capable of returning to work at this time because he is, \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n9 \n“still recovering and recuperating.” (T. 19). He also testified his, “doctor’s still got me on light-\nduty, and we’ll find out more on January 17.” (T. 19). He further testified he does not believe he \nwill ever be able to perform any type of physical work in the future. (T. 21).   \n The claimant testified that Ambetter and Medicaid paid his medical bills, and he did not \npay anything out-of-pocket, but he no longer had insurance as of the hearing date. He also testified \nhe took off work pursuant to the Family and Medical Leave Act (FMLA) for a period of time after \nthe 1/18/2022 MVA, but that PCRB let him go after his FMLA time expired. (T. 29-31). On re-\ncross  examination –  as  he  had  initially  volunteered  in  his  direct  examination  testimony –  the \nclaimant  admitted  that  on  the  day  of  the  1/18/2022  MVA  an  ambulance  had  been  called  to  the \naccident scene but he did not require it to take him anywhere for medical treatment; and that he \ntold  the  police  officer  at  the  scene  he  was  not  injured.  On  re-cross  he  also  admitted  to  having \ntraveled to Eureka Springs in the Summer of 2023, and that he had attended a Jeff Dunham show \nsince the subject MVA. The claimant has applied for Social Security disability (SSD) benefits, but \nhis claim was denied. (T. 31-32).   \nDISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n\nLarry Zintel, AWCC No. H304280 \n \n \n \n10 \n9-704(c)(3) (2023 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987). \n All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \n The  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n11 \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n Both the claimant’s and respondents’ attorneys are  to  be  commended  for  their  thorough \nresearch as well as their zealous, good faith arguments on behalf of their respective clients. The \nexcellent record they made, as well as their thoughtful, well-written, and well-reasoned briefs – \nboth of which cited specific facts from the record – were most informative and helpful in assisting \nthe ALJ render the opinion herein.   \nThe Act’s “Employment Services” Exception to Compensability \n Of course, Ark. Code Ann. Section 11-9-102(4) (2023 Lexis Replacement), infra, sets forth \nthe elements a claimant must prove by a preponderance of the credible evidence of record in order \nto demonstrate a specific-incident compensable injury. But in this case, before I may even reach \nthe issue of compensability, I must address the threshold issue concerning whether the claimant \nwas performing “employment services” at the time of the subject  Tuesday,  January  18,  2022, \nMVA.   \n Pursuant to Ark. Code Ann. § 11-9-102(4)(B)(iii) (2023 Lexis Replacement) exempts from \nthe Act’s definition of a “compensable injury” any injury that was inflicted upon the employee at \na  time  when  employment  services  were  not  being  performed.  An  employee  is  generally  not \nconsidered to be performing employment services while merely traveling to or from the workplace; \nthus,  what  we  have  referred  to  for  as  long  as  I  can  remember  as  the “going-and-coming  rule” \nordinarily precludes a finding of compensability for injuries sustained while an employee is going \nto or returning from work. Moncus v. Billingsley Logging, 366 Ark. 383, 235 S.W.3d 877 (2006). \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n12 \nThe rationale for this rule is that all persons, including employees, are subject to the recognized \nhazards of travel to and from work in a vehicle (or otherwise). Id.   \n The  Act’s  “employment  services”  exception  has  produced  a  great  deal  of  appellate \nprecedent. The Arkansas Supreme Court has held that the test to determine whether an employee \nwas in fact performing “employment services” at the time of an alleged injury(ies) is the same as \nthe  test  used  to  determine  whether  an  employee  was  acting  within  the  course  and  scope  of \nemployment, specifically: Whether the injury occurred  within the time and space boundaries of \nthe employment when the employee was carrying out the employer’s purpose(s) or advancing the \nemployer’s interest(s), either directly or indirectly. Collins v. Excel Specialty Products, 347 Ark. \n811,  69  S.W.3d  14  (2002); Pifer  v.  Single  Source  Transportation, 347  Ark.  815,  69  S.W.3d 1 \n(2002). \n Concerning the threshold employment services issue, in their brief the respondents cite a \nnumber of cases – both Full Commission and Arkansas appellate court cases – in support of their \ncontention  the  claimant  was not  engaged  in “employment services” at the time of the subject \nTuesday,  January  18,  2022,  MVA.  In  summary,  all  the  cases  the  respondents  cite  in  their  post-\nhearing  brief  deal  with  fact  situations  wherein  the  Commission  and/or  courts  have  deemed  the \nclaimant not to have been performing “employment services” at the time of the  incidents  in \nquestion. (Respondents’ Post-Hearing  Brief  at  3-5).  The  respondents’  contention  in  this  regard \nmay be summarized by the following sentences in their brief: “At the time of Mr. Zintel’s motor \nvehicle accident, he was doing absolutely nothing work-related. While it was generous of him to \npick  up  a  coworker,  he  was  not  in  the  course  and  scope  of  his  employment  at  the  time.” \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n13 \n(Respondents’ Post-Hearing Brief at 5). However, based on the facts of this case as applied to the \napplicable law, I am compelled to find the claimant has met his burden of proof in demonstrating \nhe was engaged in employment services at the time the 1/18/2022 MVA occurred.       \n The preponderance of the credible evidence of record reveals a supervisor – forman Gary \nEllison – called him while he was on his way to work and instructed him to deviate from his normal \nroute to work in order to pick up a co-worker, Mr. David Jones, who was without transportation. \n(Mr. Jones apparently usually rode with another employee, but that employee was not going to be \nat work on Tuesday, 1/18/2022.) As the claimant credibly testified: \nI was driving in to work, my phone rang. I was it was Foreman Gary, and I went to \nreach for it and couldn’t reach it, so I had to pull over, get my phone. I answered it \nand Gary was instructing me I need to go pick up David Jones because his ride was \nnot able to come in to work.   \n \n(T.  13).  The  claimant  did  not  understand  that “Foreman  Gary”  was  asking  him  to  perform  a \npersonal favor. (Id). Quite to the contrary the claimant testified, “I took it as he needed me to go \npick up a fellow employee on my way in to work and bring him to work, which, in turn, I’d have \nto drive past the job, go pick him up and come back.” (T. 14). Indeed, the claimant did not believe \nhe had a choice as to whether he was to pick up the co-worker. (Id). Of course, the claimant did \nnot, however, ever make it to pick up Mr. Jones, as he was involved in the MVA before he arrived \nat Mr. Jones’ house. (Id). The claimant only worked only one (1) day for respondent after the day \nof the accident, 1/18/2022. (T. 17). \n Taken as a whole, the testimony of the respondents’ two (2) witnesses seeking to rebut the \nclaimant’s testimony that a supervisor called him and asked him to pick up Mr. Jones simply is \nnot  persuasive.  The  first  witness,  Mr.  Seymour,  candidly  conceded  he  had  no  knowledge  of \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n14 \nwhether directed to pick up Mr. Jones on the morning of the subject MVA: \n Q. You do not know one way or the other whether Gary Ellison called Larry Zintel on \n  the morning of January the 18\nth\n 2022, do you?   \n \n A. I do not know, sir. \n(T. 40). \n And the record reveals the testimony of the respondents’ other witness, Mr. David Jones, \nis inconsistent and, therefore, lacks credibility. Mr. Jones initially testified: \nOkay. The day before the accident, like, my coworker that I normally ride with, he \nwas off that particular day, so that evening I asked Mr. Zintel could he perhaps give \nme a ride to work? And he agreed that he would pick me up hat particular morning.   \n \n(T. 43). However, Mr. Jones’s testimony is entitled to little or no weight since neither he nor Mr. \nZintel were even at work, “the day before the accident.”   \n        The   day   before   the   accident   was   January   17,   2022.   The   Commission  may   take \nadministrative/judicial  notice  that  January  17,  2022,  was  both  a  state  and  federal  holiday and, \ntherefore, all city, county, state, and federal government offices were closed that day in observance \nof Martin Luther King, Jr.’s (MLK) birthday. There exists no evidence in the record to rebut this \nfact. More specifically, there exists no evidence in the record to demonstrate the PCRB employees \nwere at work on the MLK birthday holiday. \n Consequently,  the  preponderance  of  the  credible  evidence  of  record  reveals  Mr.  Jones \ncould not, and at the very least that it is more likely than not that Mr. Jones did not talk with the \nclaimant at work on the evening of the MLK holiday – Monday, January 17, 2022 – the day before \nthe subject MVA of Tuesday, January 18, 2022. Indeed, the preponderance of the credible evidence \nreveals the claimant, “was instructed to go and pick him [Mr. David Jones] up because his normal \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n15 \nride was having to quarantine out for COVID from his son being positive for COVID.” (T. 53) \n(Bracketed material added). I find the claimant’s testimony to be more credible on these facts than \nthat of the respondents’ witnesses. The preponderance of the credible  evidence leads one to the \nconclusion  the claimant  was  in  fact  advancing  his  employer’s  interest  when  he  followed  a \nsupervisor’s instructions, and deviated from his normal route to work to pick up a coworker who \notherwise would not have had ready transportation to work.     \nThe Act’s Definition of a Specific-Incident Compensable Injury \n The  respondents  second  contention  is  that  the  claimant  has  failed  to  meet  his  burden  of \nproof in demonstrating he sustained a compensable lower back/lumbar spine injury in the subject \nMVA because the medical record fails to reveal any objective findings of an acute traumatic lower \nback/lumbar spine injury. (Respondents’ Brief at 5-6).     \n For  any  specific-incident  injury  to  be  compensable,  the  claimant  must  prove  by  a \npreponderance of the evidence that his injury: (1) arose out of and in course of his employment; \n(2) caused internal or external harm to his body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence. Ark.  Code  Ann.  §  11-9-102(4); \nCossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, 687 (Ark. \nApp.  2009).  Of  course,  the  claimant  bears  the  burden  of  proving  the  compensable  injury  by  a \npreponderance of the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.   \n “Objective findings” are those findings which cannot come under the voluntary control of \nthe patient. Ark. Code Ann. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n16 \nat  80  250  S.W.3d  263,  at  272  (Ark.  App.  2007).  Objective  findings, “specifically exclude such \nsubjective complaints or findings such pain, straight-leg-raising tests, and range-of-motion tests.” \nBurks  v.  RIC,  Inc.,  2010  Ark.  App.  862  (Ark.  App.  2010).  Objective  medical  evidence  is  not \nessential to establish a causal relationship between the work-related accident and the alleged injury \nwhere objective medical evidence exists to prove the existence and extent of the underlying injury, \nand a preponderance of other nonmedical evidence establishes a causal relationship between the \nobjective  injury  and  the  work-related  incident(s)  in  question. Flynn  v.  Southwest  Catering  Co., \n2010  Ark.  App.  766,  379  S.W.3d  670  (Ark.  App.  2010).  Moreover,  the  claimant  must  prove  a \ncausal relationship exists between her employment and the alleged injury. Wal-Mart Stores, Inc., \nv. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. App. 2002) (citing McMillan v. \nU.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (Ark. App. 1997)).   \n Concerning the proof required to demonstrate the aggravation of a preexisting condition, \nour appellate courts have consistently held that since an aggravation is a new injury, a claimant \nmust prove it by new objective evidence of a new injury different than the preexisting condition. \nVaughn  v.  Midland  School  Dist.,  2012  Ark.  App.  344  (Ark.  App.  2012)  (citing Barber  v.  Pork \nGrp., Inc., 2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. \n130, 382 S.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 \n(Ark.  App.  2010)  (Emphases  added.).  Where  the  only  objective  findings  present  are  consistent \nwith prior objective findings or consistent with a long-term degenerative condition rather than an \nacute  injury,  this  does  not  satisfy  the  objective  findings  requirement  for  the  compensable \naggravation  of  a  preexisting  condition  injury. Vaughn,  2012  Ark.  App.  344,  at  6  (holding  that \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n17 \nArkansas courts have interpreted the Act to require “new objective medical findings to establish a \nnew injury when the claimant seeks benefits for the aggravation of a preexisting condition”); \nBarber,  supra (affirming the Commission’s denial of an aggravation of a preexisting condition \nclaim where the MRI findings revealed a degenerative condition, with no evidence of, and which \ncould not be explained by, an acute injury) (Emphases added.). In Mooney, 2010 Ark. App. 600 at \n4-6,  378  S.W.3d  at  165-66  (Ark.  App. 2010), the court affirmed the Commission’s decision \ndenying a back injury claim where the objective evidence of an injury - including muscle spasms, \npositive EMG test results, and spinal stenosis revealed on an MRI - were all present both before \nand after the date of the alleged aggravation injury. (Emphasis added). \n Without a doubt, the record reveals that objective evidence – objective medical evidence – \nexists in this case. Therefore, only real primary point of contention is whether the objective evidence \nin  question – i.e.,  the  various  preexisting  degenerative  conditions  and  the L5-S1  pars  defect  the \nMRIs demonstrated – were or were not the result of the subject 1/18/2022 MVA, or whether the \nMVA aggravated or accelerated these preexisting degenerative conditions of the claimant’s lumbar \nspine.     \n In the present case, the claimant underwent an MRI of his lumbar spine on April 7, 2022. \nThe report from that test reflects, “No evidence of acute lumbar spine injury.” (RX. at 1). An MRI \nof the cervical spine showed, “minimal degenerative changes.” Another MRI of the lumbar spine \nwas performed on August 18, 2023, which revealed, “Bilateral pars defects L5-S1  with  grade  1 \nanterolisthesis.  Neural  foraminal  stenosis  worse  on  the  right  at  L5-S1.”  (RX1  at 6). Dr.  Ryan \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n18 \nFitzgerald, a  radiologist  licensed  to  practice  in  Arkansas  associated  with  Fitzgerald  Medical \nConsulting, LLC, reviewed the claimant’s lumbar MRI films and confirmed they fail to reveal any \nevidence  of  an  acute traumatic  injury  but,  “instead,  both  exams  revealed  multiple  potential \ndegenerative pain generators independent of the subject event.” (RX1 at 7-8). \n Even taking Dr. Fitzgerald’s opinion at face value, the record is completely devoid of any \nevidence the claimant had ever suffered from lower back/lumbar spine-generated pain, undergone \ntreatment  for  any  such  pain,  or  that  any  such  pain  had  prevented  him  from  performing  his \nadmittedly  strenuous  manual  labor  job  at  any  time before  the  1/18/2022  MVA.  Based  on  the \nspecific facts of this case I cannot and do not find Dr. Fitzgerald’s opinion to be as persuasive as \nthe  totality  of  all  the  other  credible,  unrebutted  evidence  of  record.  To  find  otherwise  would \nconstitute sheer speculation and conjecture which, of course, can neither support or disprove a \nclaim for compensation. See, e.g., Deana, supra.   \n       Therefore,  after  examining  the  totality  of  all  the  medical  and  other  relevant,  credible \nevidence of record,  I am compelled to find  the 1/18/2022 work-related MVA more likely than \nnot  either  caused  and/or  aggravated  or  accelerated  the  preexisting  conditions  identified  by  the \npost-1/18/2022 MVA MRIs – and particularly the L5-S1pars defect. Just as surely as the claimant \ndid have preexisting degenerative conditions in his lumbar spine, he also was involved in a rather \nserious,  practically  head-on  collision  that created enough of a collision to deploy his truck’s \nairbags, and to prompt someone to call an ambulance. And while the claimant did not ride in the \nambulance to the ER, later that same day – 1/18/2022 – before Noon he himself was in enough \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n19 \npain he presented himself to the ER. (T. 15; CX 1 at 1). Although his injuries initially appeared \nunremarkable, the claimant’s treating  physician  emphasized  to  him, “that emergent conditions \nmay arise and to return to the ER for new, worsening. Or any persistent conditions.” (CX1 at 5).   \n After  the  1/18/2022  MVA  the  claimant  suffered  chronic  lower  back/lumbar  spine  pain. \n(CX1  at  11-12).  He  was  given  a  work  restriction  as  of  6/2/22.  (CX  1  at  15).  And  again, \nsignificantly, the record is devoid of any evidence revealing the claimant ever had a problem with \nhis lower back before the subject work accident. And the claimant’s unrebutted testimony was that \nhe had no back pain and had never sought treatment for any back pain or discomfort, nor had lower \nback pain ever kept him from working. (C1 1 at 22). Dr. O ultimately diagnosed the claimant with \na “bilateral LA5 pars defect”, a condition well-known to the Commission that is a common cause \nof lower back/lumbar spine-generated pain and radiculopathy. (CX 1 at 22).   \n        Consequently, the preponderance of the aforementioned evidence reveals the claimant’s \nlower back pain/lumbar spine problems shown on the MRIs – including but not limited to the L5-\nS1 pars defect – were at the very least aggravated or accelerated by the subject 1/18/2022 MVA, \ncreating  pain  and  disability,  requiring  him  to  take  narcotic  pain,  anti-inflammatory,  and  other \nmedication (even Gabepentin, a well-known narcotic pain medication used in an attempt to help \nalleviate nerve pain), undergo PT, continuing medical treatment and, ultimately, requiring Dr. O \nto perform surgery in 2023 September. (CX 1 at 23; 25-27). And see, e.g., Lowes’s Home Centers, \nInc., v. Robertson, 2019 Ark. App. 24, 567 S.W.3d 899 (Ark. App. 2019); Fred’s, Inc. v. Jefferson, \n361  Ark.  258,  206  S.W.3d  238  (2005), et  al.  (Of  course, if the  claimant  would  have  had  a   \ndemonstrated,  documented,  or  admitted  history  of  lower  back/lumbar  spine  injury(ies),  pain, \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n20 \nand/or treatment, etc., these facts may very well have demanded a contrary conclusion/decision in \nthis claim.) \n Therefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed October 31, 2023, hereby are \naccepted as facts.  \n \n2. The  claimant  has  met  his  burden  of  proof  in  demonstrating  he  was  engaged  in \n“employment services” at the time the subject January 18, 2022, MVA. \n   \n3. The  claimant  has  met  his  burden  of  proof  in  demonstrating  he  sustained  a \ncompensable lower back injury/lumbar spine specific injury – the bilateral L5-S1 pars \ndefect  and/or  the  aggravation  or  acceleration  of  the  preexisting  degenerative \ncondition(s) of his lumbar spine – as a result of the January 18, 2022, MVA. Based \non the applicable law and the facts of this claim, these conditions constitute “objective \nfindings” sufficient to support a claim for benefits herein.  \n \n4. The  record  is  devoid  of  any  evidence  the  claimant  ever  suffered  from  a  history  of \nlower back injury(ies), or chronic lower back/lumbar spine pain; that he ever required \nor underwent treatment for such pain; that such pain ever resulted in disability that \nrequired  him  to  miss  work  as  a  result  of  any  such  pain  and/or  the  preexisting \ndegenerative  condition(s)  of  his  lower  back/lumbar  spine  at  any  time before  the \nsubject Tuesday, January 18, 2022, MVA. \n \n5. The respondents are responsible for payment of the claimant’s related, reasonably \nnecessary  medical  treatment,  and  other  such  expenses  related  to  his  compensable \nlower back/lumbar spine injury. \n \n6. The  claimant  is  entitled  to  TTD  benefits  from  the  date  of  his  compensable  lower \nback/lumbar spine injury – Tuesday, January 18, 2022 – through the date his treating \northopedic surgeon, Dr. O, opines he reached MMI. Mad Butcher v. Parker, 4 Ark. \nApp. 124, 628 S.W.2d 582 (Ark. App. 1982). \n \n7. The claimant’s attorney is entitled to a controverted fee on these facts. \nAWARD \n \n WHEREFORE, the respondents hereby are directed to pay benefits in accordance with the \n\nLarry Zintel, AWCC No. H304280 \n \n \n \n21 \n“Findings of Fact and Conclusions of Law” set forth above. All accrued sums shall be paid in lump \nsum without discount, and this award shall earn interest at the legal rate until paid pursuant to Ark. \nCode Ann. Section 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 \nS.W.2d 57 (Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 \n(Ark. App. 1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004). \n If they have not already done so, the respondents shall pay the court reporter’s invoice \nwithin twenty (20) days of their receipt of this opinion. \n IT IS SO ORDERED. \n \n                                                                             \n                                               _____________________________                   \n                 Mike Pickens \n               Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":40319,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304280 LARRY M. ZINTEL, EMPLOYEE CLAIMANT PULASKI COUNTY ROAD & BRIDGE, EMPLOYER RESPONDENT AAC RISK MG’T SERVICES, CARRIER/TPA RESPONDENT OPINION FILED MARCH 5, 2024 Hearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), ...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back","lumbar","neck","shoulder","hip","cervical","strain"],"fetchedAt":"2026-05-19T22:55:59.279Z"},{"id":"alj-H304059-2024-03-01","awccNumber":"H304059","decisionDate":"2024-03-01","decisionYear":2024,"opinionType":"alj","claimantName":"Adam Griffin","employerName":"Ppg Industries","title":"GRIFFIN VS. PPG INDUSTRIES. AWCC# H304059 MARCH 1, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Griffin_Adam_H304059_20240301.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Griffin_Adam_H304059_20240301.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H304059 \n \n \nADAM B. GRIFFIN, EMPLOYEE CLAIMANT \n \nPPG INDUSTRIES., \nEMPLOYER RESPONDENT \n \nSENTRY INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED MARCH 1, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 29, 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Jarrod  S.  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on  February 29, 2024, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was  Respondents’  Exhibit  1,  pleadings,  correspondence \nand forms related to this claim, consisting of one index page and eight numbered \npages  thereafter.  Also,  in  order  to  address  adequately  this  matter  under  Ark. \nCode Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing  \n.  .  .  in  a  manner  which  best  ascertains  the  rights  of  the  parties”),  and  without \nobjection, I have blue-backed to the record documents from the Commission’s file \n\nGRIFFIN – H304059 \n \n2 \n \non the claim, consisting of two pages.  In accordance with Sapp v. Tyson Foods, \nInc., 2010 Ark. App. 517, ___ S.W.3d ___, these documents have been served on \nthe parties in conjunction with this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  July  13,  2023,  Claimant \npurportedly  suffered  injuries  to  multiple  body  parts  at  work  on  June  16,  2023, \nwhen  he  was  involved  in  an  incident  involving  a  forklift.  According  to  the  Form \nAR-2 that was also filed on July 13, 2023, Respondents accepted the claim as a \nmedical-only one and paid benefits pursuant thereto. \n On  June  26,  2023,  Claimant  filed  a  Form  AR-C.    Therein, he alleged  that \nhe was entitled to the full range of initial and additional benefits as a result of the \ncompensable   injuries   that   he   allegedly   sustained.  No   hearing   request \naccompanied this filing. \n On  October 25,  2023,  Tanner  Thomas  moved  to  withdraw  from  his \nrepresentation of Claimant.  In an  order entered on  November 17, 2023, the Full \nCommission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nJanuary  3,  2024.   On  that  date,  Respondents  filed  the  instant  motion,  asking  for \ndismissal  of  the  claim  under  AWCC  R.  099.13  and  Ark.  Code  Ann.  § 11-9-702 \n(Repl. 2012).  My office wrote Claimant on January 3, 2024, asking for a response \nto the motion within 20 days.  The letter was sent by first class and certified mail \n\nGRIFFIN – H304059 \n \n3 \n \nto  the  Little  Rock  address  of  Claimant  listed  in  the  file  and on his  Form  AR-C.  \nWhile the certified letter was returned to the Commission, unclaimed, on February \n8,  2024,  the  first-class  letter  was  not  returned.    Regardless,  no  response  from \nClaimant to the motion was forthcoming.  On January 29, 2024, a   hearing on the \nMotion  to  Dismiss  was  scheduled  fo r  February 29,  2024,  at  12:00  p.m.  at  the \nCommission  in  Little  Rock.  The  notice  was  sent  to  Claimant  via  first-class  and \ncertified  mail  to  the  same  address  as  before.  While,  it  could  not  be  verified \nwhether  Claimant  signed  for  the  certified  letter,  the  first-class  letter  was  not \nreturned to the Commission. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary 29,  2024.  Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  the \naforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \n\nGRIFFIN – H304059 \n \n4 \n \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  additional \nbenefits is  hereby  dismissed  without  prejudice  under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nGRIFFIN – H304059 \n \n5 \n \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it  (including  appearing  at  the  February 29,  2024,  hearing  to  argue \nagainst  its dismissal) since the filing of his Form AR-C on  June 26, 2023.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13.  Because \nof this finding, it is unnecessary to address the application of § 11-9-702. \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Pr  ofessional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nGRIFFIN – H304059 \n \n6 \n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7539,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H304059 ADAM B. GRIFFIN, EMPLOYEE CLAIMANT PPG INDUSTRIES., EMPLOYER RESPONDENT SENTRY INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 1, 2024 Hearing before Administrative Law Judge O. Milton Fine II on February 29, 2024, in Little Rock, Pulaski County, Ark...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:55:50.876Z"},{"id":"alj-H200603-2024-03-01","awccNumber":"H200603","decisionDate":"2024-03-01","decisionYear":2024,"opinionType":"alj","claimantName":"Brian Bozza","employerName":"Home Depot USA, Inc","title":"BOZZA VS. HOME DEPOT USA, INC. AWCC# H200603 MARCH 1, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Bozza_Brian_H200603_20240301.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bozza_Brian_H200603_20240301.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H200603 \n \n \nBRIAN BOZZA, EMPLOYEE CLAIMANT \n \nHOME DEPOT USA, INC., \nEMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED MARCH 1, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  March  1,  2024,  in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on March 1, 2024, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    Admitted  into \nevidence  was  Respondents’  Exhibit  1,  pleadings,  correspondence,  reports,  and \nforms  related  to  this  claim,  consisting  of 11  pages.  Also,  in  order  to  address \nadequately   this   matter   under   Ark.   Code   Ann.   §   11-9-705(a)(1)   (Repl. \n2012)(Commission  must “conduct  the  hearing  .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe  record  forms,  pleadings,  and  correspondence from  the  Commission’s  file  on \n\nBOZZA – H200603 \n \n2 \n \nthe claim, consisting of 19 pages.  In accordance with Sapp v. Tyson Foods, Inc., \n2010 Ark. App. 517, ___ S.W.3d ___, these documents have been served on the \nparties in conjunction with this opinion. \n The record reflects the following procedural history: \n On  January  20,  2022,  through  then-counsel  Laura  Beth  York,  Claimant \nfiled  a  Form  AR-C,  alleging  that he injured his  left  shoulder  on August  19,  2021, \nwhile  lifting  a  box  at  work.    The  full  range  of  initial  and  additional  benefits  was \nrequested.  Accompanying  this  filing  was a  request  for  a  hearing  on  the  claim.  \nRespondents’ counsel entered an appearance on January 24, 2022.   Following a \nMarch 21, 2022, prehearing telephone conference, where the parties agreed that \nall   outstanding   issues   had   been   resolved,   the   file   was   returned   to   the \nCommission’s general files. \n Later,   another   hearing   request   was   made.      The   parties   filed   timely \nprehearing  questionnaire  responses.    On  September  19,  2022,  following  the \nconference, I issued a prehearing order that scheduled a full hearing for October \n27,  2022,  on  the  issue  of  whether  Claimant  is  entitled  to  additional  medical \ntreatment  of  his  stipulated  compensable  left  shoulder  injury.  The parties  notified \nme  on  October  18,  2022,  that  all  outstanding  issues  had  once  again  been \nresolved.    For  that  reason,  the  hearing  was  cancelled  that  day,  and  the file  was \nonce more returned to the Commission’s general files. \n \n\nBOZZA – H200603 \n \n3 \n \n On February 14, 2023, York moved to withdraw from her representation of \nClaimant.    In  an  Order  entered  on  February  24,  2023,  the  Full  Commission \ngranted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nJanuary  2,  2024.   On  that  date,  Respondents  filed  the  instant  motion,  asking  for \ndismissal of the claim because “[t]he claimant has failed to prosecute his claim for \nworkers’  compensation  benefits.”  My  office  wrote  Claimant on January  2,  2024, \nasking  for  a  response  to  the  motion  within  20  days.    The  letter  was  sent  by first \nclass and certified mail to the Hensley, Arkansas address of Claimant listed in the \nfile  and  on  the  Form  AR-C.  Claimant  claimed  the  certified  letter  on  January  6, \n2024, and the first-class letter was not returned.  However, no response from him \nto the motion was forthcoming.  On January 24, 2024, a hearing on the Motion to \nDismiss was scheduled fo r February 29, 2024, at 11:30 a.m. at the Commission in \nLittle  Rock.  The  notice  was  sent  to  Claimant  via  first-class  and  certified  mail  to \nthe  same  address  as  before.  In  this  instance,  the  United  States  Postal  Service \nwas  unable  to  verify  whether  Claimant  received  the  certified  letter.    But  the  first-\nclass letter was not returned to the Commission. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary  29,  2024.  Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  AWCC \nR. 099.13. \n\nBOZZA – H200603 \n \n4 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial  benefits is \nhereby dismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n\nBOZZA – H200603 \n \n5 \n \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it  (including  appearing  at  the  February  29,  2024,  hearing  to  argue \nagainst  its  dismissal)  since  the  cancellation  of  the  full  hearing  on  October  18, \n2022.  Thus, the evidence preponderates that dismissal is warranted under Rule \n13. \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Pr  ofessional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nBOZZA – H200603 \n \n6 \n \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8109,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H200603 BRIAN BOZZA, EMPLOYEE CLAIMANT HOME DEPOT USA, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED MARCH 1, 2024 Hearing before Administrative Law Judge O. Milton Fine II on March 1, 2024, in Little Rock, Pulask...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:55:52.936Z"},{"id":"alj-G804863-2024-03-01","awccNumber":"G804863","decisionDate":"2024-03-01","decisionYear":2024,"opinionType":"alj","claimantName":"Crystal Gainey","employerName":"Genoa Central School District","title":"GAINEY VS. GENOA CENTRAL SCHOOL DISTRICT AWCC# G804863 MARCH 1, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GAINEY_CRYSTAL_G804863_20240301.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GAINEY_CRYSTAL_G804863_20240301.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.: G804863 \n \nCRYSTAL GAINEY, EMPLOYEE                                                                        CLAIMANT     \n \nGENOA CENTRAL SCHOOL DISTRICT, \nEMPLOYER                                                                                             RESPONDENT NO.  1              \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, WCT, \nTHIRD PARTY ADMINISTRATOR/TPA                                           RESPONDENT NO.  1 \nDEATH AND PERMANENT TOTAL DISABILITY \nTRUST FUND                                                                                          RESPONDENT NO.  2                                                                        \n \nOPINION FILED MARCH 1, 2024 \n  \nHearing before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK in Texarkana, Miller \nCounty, Arkansas. \n \nClaimant represented by the Honorable Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 1 represented by the Honorable Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \nRespondent  No.  2  represented  by  the  Honorable  Christy  King,  Attorney  at  Law,  Little  Rock, \nArkansas.  Ms. King waived her appearance at the hearing.  \n   \nStatement of the Case \nOn  October  10,  2023,  the  above-captioned  claim  came  on  for  a  hearing  in  Texarkana, \nArkansas.    A  prehearing  telephone  conference  was  conducted  on  July  27,  2023,  from  which  a \nprehearing order was filed that same day.  A copy of the order and the parties’ responsive filings \nhave been marked as Commission’s Exhibit 1 and made a part of the record without objection. \nStipulations \nDuring the prehearing telephone conference, and/or at the hearing, the parties agreed to the \nfollowing stipulations: \n\nGainey – G804863 \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within  \n \nclaim. \n2. That the employee-employer-insurance carrier relationship existed at all relevant  \ntimes, including on July 16, 2018, when the Claimant sustained an admittedly compensable injury \nto her lower back. \n3. The Claimant’s average weekly wage on July 16 was $319.50, which entitles her to  \nweekly compensation rates of $213.00 and $160.00. \n4. On September 20, 2021, the Claimant reached maximum medical improvement/MMI  \nfor her compensable back injury.  Of note, although the parties did not made it a stipulation, per \nRespondents No.1’s prehearing filing, they have accepted and paid the Claimant a 25% impairment \nrating for her back injury of July 2018.   \n5. Respondents No. 1 have controverted this claim for additional benefits.  \n6. All issues not litigated here are reserved under the Arkansas Workers’ Compensation  \nAct. \nIssues \n The parties agreed to litigate limit the issues as follows: \n1. Whether the Claimant has been rendered permanently and totally disabled due to her  \ncompensable back injury of July 16, 2018, or in the alternative, whether the Claimant is entitled \nto wage loss disability benefits. \n2. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee.  \nContentions \nThe parties’ respective contentions are listed below: \n\nGainey – G804863 \n3 \n \nClaimant: \nThe Claimant contends that admittedly compensable injuries were sustained on July.    \n16, 2018 to her low back.  She received an impairment of 25% to the body as a whole.  The \nClaimant  contends  entitlement  to  a  wage  loss  determination.    All  benefits  above  the \nimpairment are controverted for purposes of attorney’s fees. \n Claimant reserves the right to pursue other benefits to which Claimant may become \nentitled to in the future. \n Claimant’s attorney respectfully requests that any attorney’s fees owed  by  the \nClaimant on controverted benefits paid by award or otherwise be deducted from Claimant’s \nbenefits  and  paid  directly  to  Claimant’s  attorney  by  separate  check,  and  that  any \nCommission Order direct the Respondents to make payment of attorney’s fees in this \nmanner.         \nRespondents No. 1:  \nRespondents contend that Claimant is not entitled to wage loss, over and above permanent \npartial disability (PPD) rating. \nRespondent No. 2: \nThe  Death  and  Permanent  Total  Disability  Trust  Fund  defers  to  the  outcome  of \nlitigation on the following issues: \n1) Whether the Claimant has been rendered permanently and totally disabled due to her \ncompensable  back  injury,  or  in  the  alternative,  whether  the  Claimant  is  entitled  to  wage  loss \ndisability benefits. \n2) Whether the Claimant’s attorney is entitled to a controverted attorney’s fee.  \n           \n\nGainey – G804863 \n4 \n \n                     FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear  the  testimony  of  the  witnesses  and  observe  their  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.   The Arkansas Workers’ Compensation Commission has authority over this claim.    \n          \n      2.    I hereby accept the above-mentioned proposed stipulations as fact. \n3.  The Claimant has failed to prove by a preponderance of the evidence that she was rendered \npermanently and totally disabled by her compensable back injury of July 16, 2018.  \n      4.    The  preponderance  of  credible  evidence  does  not  prove  that  the  Claimant  sustained  any \nwage loss disability over and beyond her 25% anatomical impairment, which Respondents No. 1 \naccepted and paid for her compensable back injury. \n 5.   The issue of a controverted attorney’s fee has been rendered moot and not discussed  \nherein this opinion. \nSummary of Evidence \nAt the hearing, Mattie Dianne Watkins (a friend and former employer), the Claimant, and \nher husband, Boyce Thomas Gainey, Jr., testified on behalf of the Claimant.  \nRespondents No. 1 called Debbie Huff, Superintendent of Genoa Central School District, \nand Ci Ci Burns, the Custodial Supervisor for the school district, as their witnesses.  \n            The record consists of the October 10, 2023 hearing transcript, comprising of the following \nexhibits:  Specifically, Commission’s Exhibit 1 includes the Commission’s Prehearing Order of \nJuly 12, 2023 and the parties’ responsive filings; Claimant’s Exhibit 1, which includes a  \n\nGainey – G804863 \n5 \n \nClaimant’s Documentary Evidence Exhibit which consists of medical records of forty-seven (47) \nnumbered  pages;   Claimant’s Exhibit 2  is  a  one-page  medical  report,  which  was  authored  by \nAmelia A. Ray, APRN, CNP on November 19, 2019; Respondents’ Exhibit 1 entails Respondents’ \nMedical Hearing Exhibit consisting of sixteen (16) numbered pages and Respondents’ Exhibit 2 \ncomprising  twenty-one  (21) numbered pages is a Respondents’ Non-medical  Hearing  Exhibit.  \nThese exhibits were admitted into evidence with no objection. \n                                                         Testimony \nMattie Dianne Watkins \n Ms.  Watkins  works  as  a  radiology  clerk.    According  to  Ms.  Watkins,  she  became \nacquainted with the Claimant through their church.  They developed a close friendship and began \nspending a lot of time together.  Ms. Watkins has known the Claimant for more than three decades.   \nShe  testified  that  she  hired  the  Claimant  to  do  work  for  her  in  her  home  after  the  death  of  her \nhusband.    The  Claimant worked  for  Ms.  Watkins  for  ten  years.    Ms.  Watkins  and  the  Claimant \nhave also taken trips together and spent a lot of leisure time together.  Per Ms. Watkins, all these \nactivities took place before the Claimant’s work-related back injury. \n The Claimant performed general household cleaning for Ms. Watkins.  According to Ms. \nWatkins, the Claimant cleaned and scrubbed every “nick and cranny,” of her home.  The Claimant \nalso helped Ms. Watkins to decorate for the holidays.  Specifically, the Claimant     helped Ms. \nWatkins to  bring  in  the  totes  of  decorations,  climb  ladders,  put  decorations  away,  and  about \nwhatever needed to be done at the time. \n However, since the Claimant’s injury, Ms. Watkins essentially testified that the Claimant \nhas not been able to travel or help her with any home cleaning because she is unable to physically \nhold  up  to  do  the  work.    Ms.  Watkins  confirmed  that  she  has  observed  the  Claimant  since  her \n\nGainey – G804863 \n6 \n \ninjury.  According to Ms. Watkins, the Claimant is feeble.  Based on Ms. Watkins dealings with \nthe  Claimant,  she  testified  that  she  found  the  Claimant  to  be  an  honest  and  straightforward \nindividual.    She  also  testified  that  she  found  the  Claimant  to  be  an  extremely  hardworking \nindividual; and prior to her injury, she was extraordinarily strong and robust and could do what \nneeded  to  be  done.      However,  Ms.  Watkins  denied  that  the  Claimant  was  able  to  physically \ncontinue working at her home after her work-related injury.  \n On cross-examination, Ms. Watkins confirmed that she has  never worked for the school \ndistrict.  Nor did  Ms.  Watkins ever have  any involvement with Annett Bassett or  Debbie Huss.  \nHowever, is familiar with Ms. Burns.  She confirmed that she also found Ms. Burns to be a truthful \nperson.  They attend the same church.   \n Ms. Watkins confirmed that she was not involved with the job opportunities, restrictions, \nor limitations, and the work provided to the Claimant by the school district after her injury.  She \nconfirmed that the Claimant worked for the school district a significant period of time after her \ninjury.  Ms. Watkins confirmed that the Claimant worked for the district until February of 2020, \nwhich would have been a year and a half after her injury.   \nShe verified that the Claimant is able to drive, and that she drove herself to Little Rock for \nher deposition.  Ms. Watkins also verified that the Claimant is able to take care of her own personal \nneeds.  She confirmed that she was aware that the school district collaborated with the Claimant \nto modify her job after her injury.                               \nUnder  further  questioning,  Ms.  Watkins  admitted  that she  was  aware  the  Claimant’s \nhusband had undergone surgery due to a heart condition.  She also was aware that the Claimant \nresigned  her  position  shortly  before  his  surgery.    Ms.  Watkins  confirmed  that  based  on  her \n\nGainey – G804863 \n7 \n \nconversations with the Claimant, she was resigning so that she would be able to take care of her \nhusband.   \nBoyce Thomas Gainey, Jr.     \n Mr. Gainey is the Claimant’s husband of forty-five years.  He confirmed that the Claimant \nperformed  physical  labor  prior  to  her  injury.    He  confirmed  that  over  the  years,  he  has  had  the \nopportunity to observe his wife’s work ethic.  According to Mr. Gainey, his wife always put forth \nher best effort into her work.  Per Mr. Gainey, the Claimant’s work required physical labor.  Mr. \nGainey also testified that his wife took care of chores around the house, including the gardening \nand all of the cleaning.  However, he testified that since the Claimant’s injury of July 2018, the \nClaimant is very limited in what she can do around the house.  Per Mr. Gainey, the Claimant has \nnow made a hundred-and eighty-degree turn.  According to Mr. Gainey, he has to make the beds, \nvacuum,  sweep,  and  do  the  dishes  for  his  wife.    Now,  Mr.  Gainey  has  to  go  with  the  Claimant \nwhen she goes grocery shopping because she is unable to lift grocery items.  Mr. Gainey testified \nthat he has to bring all the groceries into the house for his wife.   \n Mr. Gainey confirmed that he was previously employed as a supervisor of a fertilizer plant \nat Miller-Bowie Supply.  He also previously worked for Cooper Tire for over nineteen years.  As \nsuch, Mr. Gainey confirmed he is familiar with the demands of physical labor.  Mr. Gainey further \nconfirmed  that  prior  to  her  injury,  the  Claimant  was  able  to  take  care  of  household  chores  and \nthose sorts of things around the house before she injured her back.  He confirmed that before the \nClaimant hurt her back, they would have the grandkids over, and they did cookouts and other fun \nactivities.  Mr.  Gainey  testified  that  after  the  Claimant  got  hurt,  she  continued  to  work  for  the \nschool  district.    However,  he  testified  among  other  things,  that  at  the  end  of the Claimant’s \nworkday, she would come home crying.                 \n\nGainey – G804863 \n8 \n \n On  cross-examination,  Mr.  Gainey  confirmed  that  he  has  never  been  employed  by  the \nschool district.  He also confirmed the Claimant is able to drive him to his doctor’s appointments.  \nMr. Gainey confirmed that the Claimant drove from Texarkana to Little Rock in May 2022 for her \ndeposition.  However, Mr. Gainey denied that his wife resigned her position with the school district \non February 26, 2020, to take care of him following his heart pump surgery.  He admitted he was \nnot  a  part  of  the  conversation  with  the  Claimant  and  Annett  Bassett,  Debbie  Huff,  or  Ci  Burns \nwhen she resigned her position.  He admitted that he does not know what the Claimant told them.  \nAccording to Mr. Gainey, the Claimant resigned her position with the school district because the \nadministration placed more strenuous job duties on her and as a result, she was physically unable \nto do the work because of her back condition.   \n Nevertheless, Mr. Gainey specifically testified that his heart condition took a dramatic turn \nand practically shut down, and he had to be hospitalized on March 10 to have the heart pump put \nin.  He agreed that this occurred around the time his wife resigned her position.  Mr. Gainey was \nshown a copy of his wife’s letter of resignation. Specifically, the following exchange took place: \n  A I can’t see it. \n  Q Okay.  It says due to unfortunate circumstances, my husband’s health, \nplease accept my resignation from my current position as custodian effective 2/26/2020 and then \nit says Crystal Gainey and she signed it. \n  A Yes, sir. \n  Q That would be around the time that you’re talking about, correct? \n  A Yes, sir. \n Mr. Gainey went on to testify that his treating physician explained to them that after the \nLVAD surgery, he would have to have someone take care of him.  This occurred around the time \n\nGainey – G804863 \n9 \n \nof the COVID-19 pandemic.  Therefore, the Claimant had to basically move into the hospital to \ntake care of her husband.     \nOn  redirect-examination,  Mr.  Gainey  testified  that  he  was  hospitalized  for  sixteen  days \nbefore he was discharged from the hospital.  According to Mr. Gainey, they had to stay three days \nat the hotel, which was next door to the hospital.  After that period of time, they went home.  Mr. \nGainey  confirmed  that  during  this  period,  his  wife  continued  to  have  medical  treatment  for  her \ninjury until recently.  He confirmed that his wife has had ongoing complaints relating to her injury.  \nAccording to Mr. Gainey, the Claimant has problems sitting in a chair for lengthy periods of time.  \nShe also has problems sleeping throughout the night and gets up in the middle of the night.  He \nconfirmed that the Claimant underwent fusion surgery which consisted of placing hardware in her \nback.   \nCrystal Gainey \n The  Claimant  is  62  years  old.    She  confirmed  that  she  completed  that  10\nth\n  grade.    The \nClaimant  quit  school  to  get  married  and  started  working.    She  did  not  obtain  any  additional \neducation beyond that time except training as a nurse’s aide.  The Claimant worked as a certified \nnursing assistant at St. Michael’s Hospital.  According to Mrs. Gainey, she did not ever obtain her \nGED.   \n Regarding her admittedly compensable back injury of July 16, 2018, while employed with \nthe Genoa School District.  Mrs. Gainey testified that she injured her back and other bodily parts \nwhen she slipped and fell on a wet floor that they had been stripping.  Her most severe injury was \nto her back.  The Claimant promptly reported her injury.  The Respondents sent the Claimant to \nHealthcare Express, and they performed some x-rays.  Mrs. Gainey confirmed that she underwent \n\nGainey – G804863 \n10 \n \nsurgery to her back in October of 2019.  The Claimant testified that she worked on light-duty from \nthe time she got hurt until her surgery.  \n The Claimant testified that three weeks after her surgery, her supervisor called her and told \nher she had to return to  work or be  fired.  The Claimant returned to work and worked until the \nlatter part of February 2020.  Mrs. Gainey underwent a functional capacity evaluation in April of \n2020.  She maintained that upon her return to work, they had her picking up trash.  However, the \nmachine the Claimant had to ride on while performing this task jerked and jarred her back.  She \nalso  testified  that  among  other  employment  duties,  she  had  to  do  repetitive  activities,  such  as \nreaching, bending, standing, cleaning windows and furniture and straightening desks.  Mrs. Gainey \nfurther testified that she worked in the cafeteria for a time.  Per the Claimant, this position included \njob activities that were hard and included heavy lifting of boxes of potatoes and various other food \nitems.    Mrs.  Gainey  gave  an  extensive  overview  of  her  overall  job  duties  while  working  in  the \ncafeteria,  which  included  cleaning,  washing,  and  scrubbing  the  floors.    (T.  40)    The  Claimant \nfurther testified that she had to also work guard duty. \n Mrs.  Gainey  confirmed  that  Dr.  Samuel  Clay  Overley  was  her  treating  physician.    She \nmaintained that the work she was being required to perform at the school involved bending and \ntwisting her back.  The Claimant further maintained that her work involved lifting more than ten \npounds.  She denied that any of her care-taking activities for her husband after his heart surgery \ninvolved  lifting,  bending,  pulling,  and/or  pushing.    Specifically,  Mrs.  Gainey  testified  that \nfollowing her husband’s heart surgery, she had to check a monitoring box (which was apparently \nfor his heart) and blood pressure, and she had to change his bandaging every so many days.  The \nClaimant also prepared her husband’s meals per his diet restrictions, but she denied being required \nto lift him for any reason.     \n\nGainey – G804863 \n11 \n \n She admitted that prior to leaving her employment with the school district, she had some \ndiscussions  with  management.    According  to  Mrs.  Gainey,  she  did  not  have  enough  hours  to \nqualify for FMLA because she did not have enough accrued leave.  Per the Claimant she was told \nto return to work or be fired.  The other option was for her to resign, which would potentially allow \nher to be rehired by the school district. \n The Claimant confirmed that she underwent a functional capacity evaluation that resulted \nin some permanent physical work restrictions being placed on her.  She is restricted from lifting \nanything over ten pounds.  When traveling, the Claimant must take a break every thirty to forty \nminutes and walk around before proceeding to drive again.  The Claimant has difficulty walking \non concrete because it causes her to have severe back pain.  She is limited in reaching, stretching, \nand bending, but she can do some stooping.  The Claimant has been directed not to do prolonged \nsitting and standing, and no twisting or turning of her body.  According to the Claimant, she is not \nfamiliar with any job at the Genoa School District that would meet her physical restrictions.  She \ntestified that when she worked on light duty, they had her do heavy lifting, and challenging things, \nwhich included but not limited to lifting the copy paper, walking students back and  forth to the \nrestrooms  and  outside  for  them  to  catch  the  bus.    The  Claimant  further  testified  that  when  the \nteachers  had  holiday  parties,  she  had  to  decorate  their  classrooms.    However,  the  Claimant \nadmitted  that  while  doing  the  arts  and  crafts,  she  could  alternate  standing  and  sitting,  which \npermitted her to work within her physical limitations.  She denied that the school district offered \nher a job of this type.  The Claimant also denied that they offered a job on a permanent basis.      \n Following the Claimant’s April 15, 2020, functional capacity evaluation, she denied having \nany oral and/or written communications with the school district.   Prior to going to work for the \nschool district, the Claimant worked for a daycare center for approximately five years.  She denied \n\nGainey – G804863 \n12 \n \nshe could perform that job because of the lifting, bending, and twisting involved in the essential \nfunctions of taking care of the infants and toddlers.  The Claimant stated that if the school district \nwould allow her to collaborate with the teachers, she could perform those jobs because there would \nbe no strenuous, repetitious, lifting or twisting activities involved.  She could also do work that \ninvolved taking the kids to the restroom and helping the teachers with art projects and things of \nthat nature.  However, the Claimant denied that she would be able to work in the cafeteria or help \nwith the waxing and stripping of floors.      \nPrior to her injury, the Claimant’s employment duties included cleaning the classrooms, \nsweeping, dusting, mopping, wiping down the desks, sinks, and walls. According to the Claimant, \nshe also had to vacuum, move furniture around and help the teachers to do whatever they needed \ndone.    She  confirmed  that  her  employment  duties  were  extremely  arduous  work  and  included \nactivities outside of the restrictions placed on her by Dr. Overley.  \nMrs. Gainey confirmed that since her surgery, she has had some injections therapy to help \nrelieve her back pain and related symptoms.  The Claimant confirmed that a spinal cord stimulator \nhas  been  recommended  for  her  back.    She  denied  being  eligible  for  Social  Security  Disability \nbenefits or having enough quarter in to qualify for these benefits.   \nPer  the  Claimant,  Dr.  Overley  discharged  her  from  his  care  after  he  referred  her  to  Dr. \nSmith for the spinal cord stimulator. \nOn  cross-examination,  the  Claimant  confirmed  that  her  husband  had  a  pacemaker  and \ndefibrillator  put  in  eight  years  ago.    Then,  he  had  heart  pump  placement  surgery  on  March  10, \n2020.  She confirmed her husband has been placed on the heart transplant list since March of 2022.  \nMrs. Gainey testified that she left her employment with the school district in part, to help \ncare for her husband.  She confirmed that she had to be off work for at least three weeks or longer \n\nGainey – G804863 \n13 \n \nfollowing her husband’s surgery.  The Claimant confirmed that she had to either show up for work \nor be fired because she did not qualify for FMLA.  Therefore, Mrs. Gainey decided that it was in \nher best interest to resign her position with the school district.   \nThe Claimant admitted that she did not re-apply  for her position with the school district \nafter her husband’s surgery, nor did she contact them in any way to try and get her job back.  She \nadmitted that after her July 2018 injury, she continued to work except for the few periods of time \nshe  was  receiving  treatment,  and  until  her  resignation  on  February  26,  2020.    The  Claimant \nadmitted that she did not apply for or interview for a job any place else after that time.  According \nto  the  Claimant,  she  was  not  released  from  her  doctor  at  that  time.    She  admitted  that  after \nundergoing the functional capacity evaluation in April 2020, she did not apply or interview for a \njob at that point.  Mrs. Gainey admitted that she has not called Ms. Burns, Ms. Huff, or Ms. Bassett \nsince February 2020.  She confirmed that she never filed for any teacher’s aide job or anything.  \nShe  admitted  that  following  her  July  16,  2018,  injury,  she  returned  to  work  beginning \nAugust of 2018.  The Claimant confirmed she worked modified duty until her surgery.  Then she \nreturned back to work and worked until February of 2020.  Mrs. Gainey admitted that she stayed \nat the hospital with her husband due to the COVID-19 pandemic.  His surgery was on March 10 \nand they returned home from Little Rock to Texarkana on March 24. \nThe Claimant admitted that she does not take any medication for her back.  She testified \nthat she only took medication after her surgery.  Mrs. Gainey admitted that she is able to drive. \nAccording  to  the  Claimant,  she  was  released  from  medical  care  after  she  chose  not  to  undergo \nimplantation  of  the  pain  stimulator.    The  Claimant  testified  that  she  decided  not to  have  the \nstimulator implanted because of long-term health and safety concerns, which would have included \nher  inability  to  undergo  an  MRI.    She  confirmed  that  the  primary  injury  was  to  her  back.    The \n\nGainey – G804863 \n14 \n \nClaimant admitted that she did not injure her arm or shoulder while working at the school district.  \nShe  confirmed  that  she  was  in  a  sling  and  told  them  that  she  had  to  have  a  replacement  and  a \nreversal done on her right arm.  The Claimant is right-handed.  She confirmed that she first started \nhaving  problems  when  her  arm  hurt  last  year.    The  Claimant  admitted  that  she  has  done  some \nwaitressing at a small country restaurant.  There, she cooked, served food, cleaned up and waited \non the customers.  She also worked at a daycare for a church.  She worked as a teacher’s aide in \naddition to the custodial work that she did at the school.        \n   Under further questioning, the Claimant admitted that she had two slipped or ruptured \ndiscs  in  her  back  some  twenty  years  ago.    She  underwent  some  injections.    According  to  the \nClaimant, it took some time for her back to heal, but she never had any more back problems until \nher most recent injury with the school district.   \nRegarding her compensable injury, the Claimant admitted that after she had surgery on her \nback and had significant improvement.  However, the Claimant maintained that she is a long way \nfrom being well and able to do the things she used to do.  The Claimant admitted that she told the \nperson  doing  the  functional  capacity  evaluation  that  she  went  back  to  work  on  light  duty  and \nworked until she resigned due to having to take care of her husband.  According to the Claimant, \nshe wanted to work and keep her job, but she had no choice but to resign or be fired.  She admitted \nthat she had the option to resign and then reapply if she wanted to return to work for the school \ndistrict.   \nMrs. Gainey confirmed that her supervisor, Ms. Burns, communicated to her jobs that were \ngoing to be made available.  She agreed that one of the light duty jobs she worked in included a \nteacher’s aide position, but it did not include teaching.  \n\nGainey – G804863 \n15 \n \nOn redirect examination, the Claimant confirmed that the job that she actually performed \nwhen she returned to work exceeded the restrictions placed on her by Dr. Overley.  Mrs. Gainey \ndenied that she was ever offered a job that did not exceed her restrictions.   \nMrs.  Gainey  admitted  on  recross  examination  that  she  did  not  interview  or  do  anything \nproactively to go after a job with the school district.   \nDebbie Huff   \n Ms. Huff testified on behalf of the Respondents.  She is the superintendent of the Genoa \nCentral  School  District.    She  worked  for  the  school  district  in  July  of  2018  as  the  Director  of \nFederal Programs.  She oversaw Title 1 and Title II federal funding that included distribution of \nmaterial and resources for teachers and students.  \n She confirmed that she was appointed the interim superintendent in February 2020.  Ms. \nHuff admitted to meeting with the Claimant and Ms. Burns to discuss her options surrounding her \nbeing off work with her husband due to his heart surgery.  She confirmed that the Claimant did not \nqualify for FMLA.  Ms. Huff verified that the Claimant decided to resign so she could be with her \nhusband in hopes of trying to come back to the school district at some point.  She denied that there \nwas any discussion about the Claimant being unable to perform any of the job duties that she had \nbeen assigned to work.  Ms. Huff admitted that she typed the Claimant’s letter of resignation on \nher computer, but the Claimant read over it and signed it in her presence.  She denied having any \ncontact with the Claimant after she signed the letter of resignation on February 26, 2020.   \n On  cross-examination,  Ms.  Huff  confirmed  that  the  Claimant  does  not  have  a  college \ndegree.  Ms. Huff was not aware of anyone communicating to Mrs. Gainey regarding a job offer.  \nShe confirmed that back in 2018 she was a state employee administering federal money.  At that \ntime that the Claimant had discussions about taking care of her husband, Ms. Huff served as the \n\nGainey – G804863 \n16 \n \ninterim superintendent for the district.  She admitted that the work activities in the cafeteria could \ninvolve  bending,  twisting,  and  lifting  greater  than  ten  pounds.    Ms.  Huff  verified  that  the \nClaimant’s work in the cafeteria would exceed the restrictions provided by her doctor.   \n She was not aware of a custodial job that did not involve bending, twisting, or lifting no \ngreater than ten pounds.  Ms. Huff confirmed that the school district did not ever communicate to \nher that they had a job available for the Claimant within her restrictions after April 15, 2020.  She \nconfirmed  that  the  Claimant  came  to  her  because  she  was  worried  about  her  husband,  and  she \nwanted to protect her job if possible.  Ms. Huff admitted that she gave the Claimant the option of \nresigning so that it would look better if she decided to return to work for the school district.  She \nconfirmed that she told the Claimant if she did not show up for work, it could lead to disciplinary \nactions  which  could  lead  to  her  termination.    She  admitted  that  the  three  weeks  the  Claimant \nneeded to be with her husband would have exceeded the time she was allotted for taking off work \nto continue her employment with the school district.  \n On redirect examination, Ms. Huff confirmed that the Claimant worked for a year and half \nafter her injury in July 2018.  Specifically, the Claimant continued to work various modified jobs \nfor the school district.  She denied that Mrs. Gainey indicated that there was any ill-will between \nher and the school district.  Ms. Huff confirmed that during her conversation with the Claimant in \nFebruary of 2020, she never indicated to her that there was a problem with Ms. Burns or anyone \nelse.    Moreover,  nor  did  the  Claimant  indicate  to  Ms.  Huff  that  she  was  having  problems \nperforming her job responsibilities.   \n On  recross  examination,  Ms.  Huff  admitted  that  she  did  not  ever  observe  the  Claimant \nperforming her job duties.  She confirmed that the Claimant had restrictions in 2019 that kept her \nfrom sitting or standing longer than thirty minutes.   \n\nGainey – G804863 \n17 \n \nCi Ci Burns      \nMs. Burns is the custodial supervisor at the Genoa Central School District.  She has held \nthis position for twenty-nine years and has been the custodial supervisor for ten years.  According \nto Ms. Burns, the Claimant worked as a custodian under her.  She agreed that she supervised the \nClaimant.  Ms. Burns confirmed that  Mrs. Gainey began working  for the  school district  around \nApril 30, 2018, which would have been the 2018-2019 school year.  She admitted that the Claimant \nworked  extra  hours  during  the  summer  months.    Per  Ms.  Burns,  although  the  Claimant  had  a \ncontract, she was not considered a salaried employee.   \n She testified that the Claimant had light-duty work restrictions on March 25, 2019, placed \non her by Dr. Overley.  Per these restrictions, the Claimant was restricted from twisting, bending, \nand  lifting  no  more  than  fifteen  pounds.    She confirmed that if the Claimant’s restrictions had \nchanged, she would have made a new list of items/duties for her.  Ms.  Burns agreed that if she \ncontacted the Claimant to return to work, it would have been based on a doctor indicating that she \ncould return to work.  She agreed that the Claimant was provided lighter work duties within her \nphysical  limitations  and  restrictions,  which  included  wiping  down  desks  and  disinfecting  the \nclassrooms, which simply entailed spraying a can of Lysol.  According to Ms. Burns, this occurred \nduring the COVID-19 pandemic.  \n Under further questioning, Ms. Burns testified that during the school year 2019-2020, she \nprepared a list of duties for the Claimant.  Said list indicated that the Claimant was responsible for \nmonitoring  the  students  exiting  and  entering  the  campus,  cleaning  windows,  picking  up  trash, \nassisting in the cafeteria (which involved putting food on trays and handing trays to the students).  \nThe Claimant was  required to stand in the serving line and scoop the tray up and slide it to the \nstudents.  She confirmed that the Claimant did not have to lift the trays to give them to the students.   \n\nGainey – G804863 \n18 \n \nInstead,  the  Claimant  only  had  to  push  the  tray  outward  to  the  students,  which  was  within  her \nrestrictions.    Ms.  Burns also  testified  that  there  were  eight  to  ten  other  workers  performing  this \nsame task. \n According  to  Ms.  Burns,  the  Claimant  never  indicated  to  her  that  she  was  unable  to \nphysically perform the job duties that she was assigned to perform at that time.  She agreed that \nhad the Claimant complained to her, she would have modified her job duties.  Ms. Burns denied \nthat she ever indicated to the Claimant she could not return to work for the school district.  She \nspecifically denied that she threatened to fire the Claimant if she did not do certain things.  Ms. \nBurns also denied having reduced the Claimant’s pay when she returned to work after July of 2018.  \nInstead, Ms. Burns testified that the Claimant would have been eligible for a raise.   \n On  cross-examination,  Ms.  Burns  confirmed  that  she  did  not  notify  Mrs.  Gainey  of  any \navailable  jobs  after  February  26,  2020.    Ms.  Burns  testified  that  the  Claimant  was  a  very  good \nworker.   \n Ms. Burns confirmed on redirect examination that the jobs that are posted are available to \nanyone who has either internet connection or social media.  She agreed that this is the way that the \nschool district goes about notifying people of jobs.  \n                             \nMedical Evidence \n The first medical record of evidence following the Claimant’s fall at work is dated July 16, \n2018.  The Claimant sought medical services from HealthCare Express due to a slip and fall on \nstripper wax on the floor at work as she came around the corner.  Mrs. Gainey reported that she \nhit her tailbone and both her hips hard.  The Claimant also complained of a headache in the back \nof the head after hitting it on the floor.    \n\nGainey – G804863 \n19 \n \nThe Claimant sought medical treatment from HealthCare Express on August 20, 2018, for \na follow-up appointment of back and head injuries.  The Claimant was assessed with a contusion \nof the head, and a lumbar contusion.  At that time, an MRI of the lumbar spine was recommended \nto determine if there was any nerve root impingement.   \n An  MRI  of  the Claimant’s lumbar  spine  was  performed  on  August  24,  2018,  with  the \nfollowing impression: \n1. Severe  L4-5  canal  stenosis  secondary  to  spondylolisthesis,  small  broad-based  disc \nbulge and bilateral facet arthropathy. \n2. Small L5-S1 central disc protrusion.    \nThe Claimant underwent an evaluation at UAMS by Dr. Micheal D. Cassat on September   \n27, 2018, due to significant low back pain since a fall at work several weeks ago.  Her back pain \nradiated  bilaterally  to  legs  and  thighs.    However,  there  was  no  associated  sensory  change  or \nweakness.  Dr. Casset performed  x-rays which showed a Grade 1 spondylolisthesis at L4-5, for \nwhich  physical  therapy  strengthening  and an  epidural  steroid  injection  at  L4-5  to  help  with  the \nClaimant’s radicular leg pain.  They also discussed medial branch blocks with possible rhizotomy \nfor her axial back pain.  As a result, the Claimant was placed on restrictions of no lifting, pushing, \nor pulling greater than ten pounds, and no repetitive flexion or extension.  \n On December 10, 2018, the Claimant returned to UAMS for a recheck of her low back pain \nwith radiculopathy.  Dr. Cassat noted that her leg pain was much better after an epidural steroid \ninjection, but she continued to have significant low back pain.  At that time, Dr. Cassat assessed \nthe  Claimant  with  low  back  pain,  which  was  potentially  associated  with  radiculopathy.    His \nrelevant  treatment  recommendations  included  return  to  Interventional  Pain  for  medial  branch \nblocks with rhizotomy, continued physical therapy with core strengthening only, limited extension \n\nGainey – G804863 \n20 \n \nand  rotation,  with  continued  same  work  restrictions,  with  follow-up  in  six  weeks,  or  sooner  if \nneeded.             \n The  Claimant  returned  to  Dr.  Cassat  on  January  28,  2019,  to  discuss  her  low  back \nsymptoms  and  previous radicular  leg  pain.    Dr.  Cassat  reported  that  unfortunately  the  Claimant \ncomplained  of  worsening  pain  after  medial  branch  blocks  with  zero  relief  during  lidocaine \ncomponent.  Her pain continued to be moderate to severe with activity, especially with standing \nextension and rotation.  Dr. Cassat opined: \nAt  this  point  she  has  failed  conservative  treatment  measures  including  physical  therapy, \nmedial branch blocks and epidural steroid injections.  Her radicular leg pain resolved after \nher  epidural  steroid  injection,  but  she  continues  to  have  severe  debilitating  back  pain.    I \nwould like her to see my partner to discuss  further treatment options including potential \noperative treatment. If there is no further appropriate treatment for her work-related injury, \nshe will need a functional capacity evaluation. \n \nOn February 8, 2019, the Claimant presented to Samuel Clay Overley’s clinic for an  \nevaluation  of  her  severe  lower  back  pain  associated  with  some  buttock  pain  and  left  lower \nextremity radiculopathy.  The Claimant reported she had a fall back in July of 2018 when all her \npain started.  She complained of severe pain in the lower back as well as the buttocks and primarily \nthe left lower extremity.  However, after an L4-5 transforaminal injection on the left, her left lower \nextremity pain was better.  The Claimant continued to have severe low back pain.  Although the \nClaimant   had   tried   epidural   steroid   injections,   facet   blocks,   narcotics,   physical   therapy, \nacupuncture, membrane stabilizers, and muscle relaxers without any significant lasting relief.  The \nClaimant  was  referred  to  Dr.  Overley  by  his  colleague,  Dr.  Cassat,  for  evaluation  for  potential \nsurgical intervention.    \n A computed tomography report dated February 25, 2019, demonstrates that the Claimant \nunderwent a CT of her lumbar spine, with the following IMPRESSION: \n\nGainey – G804863 \n21 \n \n1. L4-5 level spinal stenosis and bilateral lateral recess stenosis due to prominent bulging \nof  the  annulus  fibrosis,  facet  arthropathy  and  ligamentous  hypertrophy.    Small  disc \nprotrusion cavity excluded, and MRI of the lumbar spine is recommended for further \nevaluation. \n2. Diffuse lumbar spondylosis as detailed above. \n \nOn March 1, 2019, the Claimant presented to Dr. Overley in clinic for evaluation of  \n \nsevere  low  back  pain  associated  with  left  greater  than  right  buttock  and  left  lower  extremity \nradiculopathy.    At  that  point,  Dr.  Overley  recommended  that  the  Claimant  continue  physical \ntherapy for at least another six months and if after that she was still having severe pain, he would \nconsider offering an L4-5 instrumented fusion.  In the meantime, Dr. Overley put the Claimant on \nlight duty work for the next six months.  \n The Claimant underwent a Functional Capacity Evaluation on April 19, 2020.  The results \nof this evaluation indicate that the Claimant put forth a reliable effort, with 55 of 55 consistency \nmeasures within expected limits.  The examiner stated that further analysis of the data collected \nduring this evaluation indicates that Claimant did put forth a consistent effort and passed all criteria \nfor a reliable effort indicating that a significant degree of effort was put forth.  She was consistent \nwith repeated trial testing, distraction-based testing for which she exhibited appropriate responses \nto material handling and strength testing.  The examiner concluded that the Claimant completed \nthe  functional  testing  on  this  date  with  reliable  results.  Overall,  the  examiner  opined  that  the \nClaimant demonstrated the ability to perform work in the light classification of work as defined \nby the U.S. Dept. of Labor’s guidelines over the course of a normal eight-hour workday within \nlimitations as noted above. \n On December 9, 2020, the Claimant underwent evaluation by Amelia A. Ray, APRN, CNP, \nto discuss her MRI and physical therapy.  The Claimant reported she was prescribed oral steroids, \nand they improved her back pain and leg pain a bit.  Unfortunately, this lasted only about four days \n\nGainey – G804863 \n22 \n \nand then her back pain returned.  At that time, the Claimant’s pain was in her low back diffusely \nand radiated into bilateral legs.  The Claimant also reported pain in her knee and buttocks, hip, and \ndown the back of her left leg.  Per this medical report, the Claimant was ten months status post L4-\nL5 posterior decompression with instrumented fusion, and she did very well postoperatively until \nabout four months ago when she started having feelings of radicular pain again as well as low back \npain.   Imaging was detailed as the following: \nMRI lumbar spine shows no new disc bulge or protrusion or canal stenosis at any level. \n \nEvaluation  of  neural  foramina  limited  at  L4-L5  and  L5-S1,  however  without  any \nsuggestion of significant foraminal narrowing.  Likely mild right foraminal narrowing L5-\nS1 and mild to moderate foraminal narrowing bilaterally at L4-L5. \n \nThe Claimant returned to Nurse Ray on September 15, 2021, for an MME evaluation \nand an impairment rating.  This clinical note shows that the Claimant was one year out status post \nL4-5 posterior decompression and instrumented fusion, but she had done quite well following this \nsurgery.    The  Claimant  still  had  occasional  pain  down  the  left  lower  extremity.    She  also  had \noccasional  back  pain.      At  that  time,  the  Claimant  was  declared  to  be  at  maximum  medical \nimprovement for her back injury.  Her impairment rating based on AMA guidelines 4\nth\n volume \nwas  25%  to  the  whole  person  based  off  of  radiculopathy  and  loss  of  motion  segment  integrity.  \nThey  discussed  the  fact  that  she  continued  with  left  lower  extremity  pain  and  wanted  to  try  an \nepidural steroid injection.    \n       Adjudication \nPermanent and Total Disability, or alternatively, Wage-Loss Disability \n  The  Claimant  has  asserted  that  she  has  been  rendered  permanently  and  totally  disabled \nbecause of her compensable back injury of July 16, 2018, or in the alternative, that she sustained \nwage loss, because of her work-related injury.  \n\nGainey – G804863 \n23 \n \nIn that regard,  Ark. Code Ann. §11-9-519(e)(1) (Repl. 2002) provides: \"Permanent total \ndisability\" means an inability, because of compensable injury or occupational disease, to earn a \nmeaningful wage in the same or other employment.   \nFurthermore, the statute provides that the burden of proof shall be on the injured employee \nto prove their inability to earn any meaningful wage in the same or other employment.  Ark. Code \nAnn. §11-9-519(e)(2) (Repl. 2002). \nThe evidence before me does not show that the Claimant has been rendered permanently \nand totally disabled due to her July 16, 2018, back injury.  \nHere, the Claimant worked as a custodial worker for the school district.  She sustained a \nwork-related  fall  when  she  slipped  and  fell  on  a  floor  that  was  being  stripped  and  waxed  by \ncoworkers.    The  Claimant  promptly  reported  her  injury  to  management,  and  they  provided  her \nappropriate medical care.  After the Claimant failed conservative treatment, she underwent back \nsurgery  by  Dr.  Overley  in  October  2019.    Although  the Claimant’s testimony and the  medical \nrecords mention that Dr. Overley performed a posterior spinal fusion at L4-5 with interbody, the \nsurgical report for this surgery has not been made a part of the record.  Review of the evidence \nleads me to conclude that the Claimant underwent back surgery in October 2019.  \nFollowing the Claimant’s back surgery, on December 18, 2019, she returned to work for \nthe  school  district  and  worked  in  various  positions,  performing  light-duty  work.    The  Claimant \nperformed  light-duty  for  the  district  work  until  February  26,  2020.    At  that  point,  the  Claimant \nresigned  her  position  with  the  school  district  so  that  she  could  care  for  her  husband,  who  was \nscheduled for heart surgery.   \nOn  April  19,  2020,  the  Claimant  underwent  an  FCE.  Per the Claimant’s FCE, she has \npermanent restrictions as noted above in the light duty category.  The Claimant was declared by \n\nGainey – G804863 \n24 \n \nDr. Overley’s clinic to be at MMI for her back injury in September 2021.  At the time, the Claimant \nwas  assessed  with  a  25%  whole  body  anatomical  impairment  for  her  compensable  back  injury.  \nRespondents No. 1 accepted and paid the 25% impairment rating for the Claimant’s back injury.  \nThe Claimant admitted that she can drive and perform her own personal care needs.  Her \ntestimony demonstrates that after her husband’s heart surgery in March 2020, she was able to able \nto prepare his meals and care for him.  The Claimant does not take any medications for her back.  \nNotably, the Claimant ambulates without the use of any assistive technology or adaptive devices.    \nConsidering  all  of  the  above-mentioned  reasons,  particularly  the  fact  that  the  Claimant \nsuccessfully returned to work following her fusion surgery and was able to perform her assigned \nlight-duty employment activities without any documented problems or difficulties performing her \nduties, until she resigned her position with the school district to care for her husband,  and because \nshe is able to perform work in the light duty category, I am unable to find that the Claimant has \nbeen rendered permanently and totally disabled by her compensable back  injury of July 2018.  \n The  wage-loss  factor  is  the  extent  to  which  a  compensable  injury  has  affected  the \nClaimant’s ability to earn a livelihood.  Whitlatch v. Southland Land &Dev., 84 Ark. App. 399, \n141  S.W.  3d  916  (2004).    When  considering  claims  for  permanent  partial  disability  benefits  in \nexcess of the employee's percentage of permanent physical impairment, the Commission may take \ninto account, in addition to the percentage of permanent physical impairment, such factors as the \nemployee's age, education, work experience, and other matters reasonably expected to affect her \nfuture earning capacity.  Ark. Code Ann. § 11-9-522(b)(1) (Repl. 2002).        \nIn considering factors that may affect an employee's future earning capacity, the appellate \ncourt considers the Claimant's motivation to return to work, since a lack of interest or a negative \n\nGainey – G804863 \n25 \n \nattitude impedes an assessment of the Claimant's loss of earning capacity.  Ellison v. Therma Tru, \n71 Ark. App. 410, 30 S.W.3d 769 (2000).  \nHere, the Claimant is 62 years of age.  She is of advanced age and has a limited education.  \nThe Claimant worked for the school district as a custodial worker.  In July 2018, she slipped and \nfell on a wet floor primarily injuring her lumbar spine. Ultimately, the Claimant underwent back \nsurgery for her back. After her October 2019 back surgery, the Claimant returned to work for the \nschool district and performed various jobs in the light-work duty category  until her resignation.  \nFollowing an FCE, the Claimant was given permanent physical restrictions in the light category \nof work.   \nThe  evidence  shows  that  the  Claimant  resigned  her  position  with  the  school  district  in \nFebruary 2020.  Although the Claimant maintained she had problems performing these light duty \nemployment  duties,  she  did  not  make  any  documented  complaints,  written  or  otherwise  to \nmanagement, concerning her alleged difficulties performing her assigned work.  Both Ms. Burns \nand  Ms.  Huff  credibly  testified  that  the  Claimant  did  not  complain  to  either  of  them  about  any \ndifficulties  with  her  assigned  light-duty  work.    More  importantly, the  Claimant’s  letter  of \nresignation states that her sole reason for resigning her position with the school district was to take \ncare  of  her  ailing  husband.    The  testimony  of  these two witnesses and the Claimant’s letter of \nresignation does not establish that the Claimant resigned because she had difficulty performing her \nassigned light-duty work.  Instead, the preponderance of the credible evidence proves the Claimant \nresigned from her job with the school district for the sole purpose of caring for her husband due to \nhis upcoming heart surgery.    \nFurthermore, upon the Claimant’s return to work after her lumbar surgery, the Claimant \nperformed her assigned light duty work, and she made the same or more wages as she was paid \n\nGainey – G804863 \n26 \n \nprior to her injury.   Because the preponderance of the credible evidence shows that the Claimant \nsuccessfully  returned  to  work  for  the  school  district  after  her  back  surgery,  and  had  no  loss  or \ndecrease in her  earning capacity,  I am unable to find that the Claimant sustained any wage loss \ndisability as a result of her compensable back injury of July 16, 2018.   \nThe issue pertaining to a controverted attorney’s fee has been rendered moot and not \ndiscussed in this opinion. \n              ORDER \n This  claim  for  permanent  and  total  disability  benefits  and/or  wage  loss  is  hereby \nrespectfully denied and dismissed.  The issue pertaining to a controverted attorney’s fee has been  \nrendered moot and not addressed herein. \nIT IS SO ORDERED.                \n \n                                                                               \n                                                                                               ____________________________ \n                                                                 Chandra L. Black       \n                                                Administrative Law Judge","textLength":51785,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: G804863 CRYSTAL GAINEY, EMPLOYEE CLAIMANT GENOA CENTRAL SCHOOL DISTRICT, EMPLOYER RESPONDENT NO. 1 ARKANSAS SCHOOL BOARDS ASSOCIATION, WCT, THIRD PARTY ADMINISTRATOR/TPA RESPONDENT NO. 1 DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPIN...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["back","repetitive","shoulder","lumbar","knee","hip"],"fetchedAt":"2026-05-19T22:55:55.109Z"},{"id":"alj-G807164-2024-02-29","awccNumber":"G807164","decisionDate":"2024-02-29","decisionYear":2024,"opinionType":"alj","claimantName":"Kimberly Clardy","employerName":"University Of Arkansas Fayetteville","title":"CLARDY VS. UNIVERSITY OF ARKANSAS FAYETTEVILLE AWCC# G807164 FEBRUARY 29, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/CLARDY_KIMBERLY_G807164_20240229.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CLARDY_KIMBERLY_G807164_20240229.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. G807164 \nKIMBERLY CLARDY, EMPLOYEE CLAIMANT \n \nUNIVERSITY OF ARKANSAS FAYETTEVILLE, EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER RESPONDENT \n \n OPINION FILED FEBRUARY 29, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington  \nCounty, Arkansas. \n \nClaimant represented by Aaron L. Martin, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by Robert H. Montgomery, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January 18, 2024, a prehearing conference was conducted with the attorneys for the parties. \nA prehearing Order was entered that same day. Rather than schedule this matter for a hearing, the \nparties advised that a stipulated record would be submitted on the two issues set forth below, along \nwith a brief from each party setting forth its position on how the law applies to the stipulated facts. \nThe stipulated facts and the briefs of the parties along with portions of the Commission’s file are blue \nbacked and made a part of the record.  \n At the prehearing conference, the parties stipulated as follows:  \n 1.       The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2.       The employee/employer/carrier relationship existed October 3, 2018.  \nThereafter, the parties submitted these Stipulated Facts as follows: \n 1.     That the claimant was working as a temporary employee for the University of Arkansas       \non October 3, 2018; \n\nClardy-G807164 \n2 \n \n 2.      That the claimant alleges an accidental injury to her right shoulder on October 3, 2018; \n 3.        That  the  claimant  called  Company  Nurse  on October  8,  2018  to  report  an  on-the-job \ninjury; \n 4.     That the claimant received medical treatment at Pat Walker Health Center on October 9, \n2018 and the bill related to that treatment was paid by respondents on November 4, 2018; \n 5.        That  no  additional medical  or  indemnity  benefits  were  paid  relative  to  this  claim  after \nNovember 4, 2018; \n 6.    That the claimant filed an AR-C with the Commission for initial and additional benefits \non April 5, 2019; \n 7.      That the respondent filed a Motion to Dismiss (MTD) for failure to prosecute on October \n30, 2023; \n 8.     That the claimant filed her Response in Opposition to the MTD on November 27, 2023, \nand expressed her wish to move forward with a hearing on her claim. \n The issues presented to me on this stipulated record were: \n            1.       Whether respondents’ Motion to Dismiss should be granted. \n2.       Whether this claim is barred by the statute of limitations. \n All other issues are reserved by the parties. \n From  a  review  of  the entire record, including  the  stipulations  of  the  parties, the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1. The stipulations agreed to by the parties at a pre-hearing conference conducted on January \n18, 2024 and contained in a pre-hearing order filed that same date are hereby accepted as fact, as are \nthe stipulated facts submitted on January 23, 2024. \n\nClardy-G807164 \n3 \n \n \n 2.  The claim should be and is hereby dismissed without prejudice pursuant to Ark. Code Ann. \n§11-9-702(a)(4), §11-9-702(d) and AWCC R. 099.13 for want of prosecution. \n 3.   The issue regarding the statute of limitations is moot in light of this dismissal.  \n FACTUAL BACKGROUND \n Prior to the prehearing conference, respondent filed a Motion to Dismiss, alleging there had \nbeen no activity in this matter for over six months. In its prehearing questionnaire, respondents raised \na statute of limitations defense. During the discussion with the parties at the prehearing conference, \nthe parties advised that in lieu of a hearing, they could submit a set of stipulated facts regarding the \ntwo procedural motions, as a ruling for respondent on either would dispose of this matter.     \n After submitting the joint stipulations set forth below, the parties submitted briefs in support \nof their positions. The Employer’s First Report of Injury form, the Intent to Controvert Claim form, \nthe Report  of  Compensation  Paid, the claimant’s AR-C form, respondents’ Motion  to Dismiss, \nclaimant’s response to  that motion, the  prehearing  questionnaires  submitted  by  the  parties, the \nprehearing order, the Joint Stipulations, and the briefs of the parties are blue backed and made a part \nof the record.  \nADJUDICATION \n \n In its Motion to Dismiss, respondents argued that pursuant to both Ark. Code Ann. §11-9-\n702(a)(4) and Ark. Code Ann. §11-9- 702(d), this claim should be dismissed. In its responses to the \nprehearing questionnaire, respondents raised the defense that the statute of limitations had expired, \nand this matter could no longer be pursued. Finding for the respondents on the Motion to Dismiss, I \ndo not need to determine if the statute of limitations has run.   \n In her brief  opposing  the Motion  to Dismiss,  claimant  cited  four  decisions  made  by other \nadministrative law judges to demonstrate that it is discretionary for me to dismiss this case or decline \n\nClardy-G807164 \n4 \n \n \nto do so. I read not only those cases but many other decisions, both at the trial level and on appeal to \nthe Full Commission\n1\n. I agree that the word “may” in Ark. Code Ann. §11-9-702 and Commission \nRule 099.13 gives  me latitude  to deny  the  motion even  though  it  is  stipulated  that more  than  six \nmonths  have  passed  without claimant  making a  request  for a  hearing.    In  this  matter,  however,  I \nbelieve it would be an abuse of discretion to deny the Motion to Dismiss.  \n In  her contentions  set  forth  in her  prehearing  questionnaire,  claimant stated that  “she \nsustained a compensable injury to her right shoulder on October 3, 2018.”  Respondents agreed that \nclaimant reported an injury on that date and paid for her treatment for that injury, which amounted \nto a visit to a physician. (Stipulations 1-5 above.)  Respondents notified the Commission of its intent \nto controvert the claim.  Claimant then filed an AR-C, seeking initial benefits for temporary partial \ndisability,  medical expenses, and  attorney  fees; on  the  same  form,  claimant requested  additional \ntemporary  total  disability  benefits,  additional  medical expenses, and an attorney’s  fees for a right \nshoulder  injury.   The  boxes  that  were perhaps  incorrectly checked are of  no consequence to  my \ndecision as per Dillard v.  Benton County Sheriff's Office, 87 Ark. App. 379, 192  S.W.3d 287 (2004); the \nclaim was submitted six months after the alleged injury.    \n What is of consequence, though, is that nothing happened in this case for four and a half years \nafter  the  AR-C  was  filed.   No additional medical  records  were referenced  in claimant’s prehearing \nquestionnaire except those from Pat Walker Health Center, which the parties stipulated were paid by \nrespondents.    That indicates there  had  been  no  additional  treatment after  the  initial physical \nexamination.  The Intent to Controvert this claim was filed on October 23, 2018, over five years before \nthe Motion to Dismiss was filed.    \n \n1\n In  January  2024,  the  Full  Commission  directed  that  administrative  law  judges should  not  cite  their  opinions  as \nprecedent.   However, that did not prohibit me from reading those opinions for guidance.  \n\nClardy-G807164 \n5 \n \n \n Ark. Code. Ann §11-9-702 provides for initial claims:  \n(a)(4) If within six (6) months after the filing of a claim for compensation no \nbona fide request for a hearing has been made with respect to the claim, the \nclaim may, upon motion and after hearing, be dismissed without prejudice to \nthe  refiling  of  the  claim  within  limitation  periods  specified  in  subdivisions \n(a)(1)-(3) of this section.  \n \n For claims for additional benefits: \n \n(d)  If  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation no bona fide request for a hearing has been made with respect \nto the claim, the claim may, upon motion and after hearing, if necessary, be \ndismissed without prejudice to the refiling of the claim within the limitation \nperiod specified in subsection (b) of this section.  \n \n Thus,  regardless  of  how  this  matter  is  viewed—as  a  claim for  initial  benefits,  additional \nbenefits, or both--I believe it would be an abuse of discretion to deny a motion to dismiss a claim that \nhas sat dormant for so long. As such, I am granting respondents’ motion.  There does not appear to \nbe any circumstances to mandate that this matter be dismissed with prejudice (see Johnson v. Triple T \nFoods, 55 Ark. App. 83, 929 S.W.2d 730 (1996) and Loosey v. Osmose Wood Preserving Co., 23 Ark. App. \n137, 744 S.W.2d 402 (1988) for cases dismissed with prejudice). Therefore, this matter is dismissed \nwithout prejudice.   \nORDER \n \n Because  of  the  dismissal  of  this claim  pursuant  to  Rule  13,  the  other  issue submitted  on \nStipulated Facts for determination will not be addressed.  Respondent's Motion to Dismiss is granted. \nThe instant claim is dismissed without prejudice. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":9465,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G807164 KIMBERLY CLARDY, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FAYETTEVILLE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER RESPONDENT OPINION FILED FEBRUARY 29, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Was...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:57:54.210Z"},{"id":"alj-H202652-2024-02-28","awccNumber":"H202652","decisionDate":"2024-02-28","decisionYear":2024,"opinionType":"alj","claimantName":"Joseph Powell","employerName":"Structurlam Mass Timber U.S., Inc","title":"POWELL VS. STRUCTURLAM MASS TIMBER U.S., INC. AWCC# H202652 FEBRUARY 28, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/POWELL_JOSEPH_H202652_20240228.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"POWELL_JOSEPH_H202652_20240228.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H202652 \n \n     \n \nJOSEPH WAYNE POWELL,   \nEMPLOYEE                                     CLAIMANT \n \nSTRUCTURLAM MASS TIMBER U.S., INC.,   \nEMPLOYER                                                     RESPONDENT \n \nEMPLOYERS INS. CO. OF WAUSAU/ \nLIBERTY MUTUAL INS. CO.,   \nINS. CARRIER/TPA                                         RESPONDENT \n \n \n \nOPINION AND ORDER FILED FEBRUARY 27, 2024, GRANTING RESPONDENTS’ \nMOTION FOR AN INDEPENDENT MEDICAL EVALUATION (IME) \n \nIn lieu of a hearing, and pursuant to the parties’ mutual agreement, the single issue set forth below \nwas  submitted  for  decision  to  the  Arkansas  Workers’  Compensation  Commission  (the \nCommission), Administrative Law Judge (ALJ) Mike Pickens, on the record.     \n \nThe  claimant  is  represented  by  the  Honorable  Gary  Davis,  Gary  Davis  Law  Firm,  Little  Rock, \nPulaski County, Arkansas. \n \nThe respondents are represented by the Honorable David C. Jones, Newkirk & Jones Law Firm, \nLittle Rock, Pulaski County, Arkansas. \n \nINTRODUCTION AND BRIEF FACTUAL BACKGROUND \n \n The ALJ filed an amended prehearing order on February 26, 2024. In lieu of a hearing the \nparties  mutually  agreed  to  submit  the  single  issue  in  dispute  at  this time –  namely,  whether  the \nALJ should grant the respondents’ motion for a second opinion or IME – for decision based on the \nrecord, which is enumerated in more detail, infra.   \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n2 \n \n     In the amended prehearing order filed February 26, 2024, the parties agreed to the following \nstipulations: \n \n 1. The Arkansas Workers' Compensation Commission (the Commission) has \n  jurisdiction over this claim. \n \n2. The employer/employee/carrier-TPA relationship existed with the claimant at all \nrelevant times including February 4, 2022, when the claimant sustained an \nadmittedly compensable injury to his head and his neck/cervical spine for which \nthe respondents paid medical and indemnity benefits, which included payment for \none (1) cervical spine surgical procedure. \n \n3. The claimant’s average weekly wage (AWW) is $744.18 which is sufficient to \nentitle her to weekly compensation rates of $496.00 for temporary total disability \n(TTD) and $372.00 for permanent partial disability (PPD) benefits. \n \n4. The  respondents  have  to  date  controverted  only  the  claimant’s  request  for  the \nsubject second cervical spine surgery Dr. Gallagher has recommended. \n \n5. The parties specifically reserve any and all other issues for future determination \nand/or litigation. \n \n(Commission Exhibit 1 at 2). Pursuant to the parties’ mutual agreement the sole issue to be \ndecided at this time is: \n \n1. Whether  the  respondents  are  entitled  to  an  IME  concerning  whether  the  second \ncervical  spine surgical  procedure the claimant’s  treating physician, Dr. Gallagher, \nhas recommended is related to and reasonably necessary in light of the claimant’s \nFebruary 4, 2022, admittedly compensable head and neck/cervical spine injuries. \n \n2. The  parties  specifically  reserve  any  and  all  other  issues  for  future  determination \nand/or litigation. \n \n(Comms’n Ex. 1 at 2). \n \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n3 \n \n       In their motion for a second opinion or IME formally filed with the Commission on January \n26, 2024 (the motion for an IME, or the subject motion), the respondents contend they are entitled \nto  a  second  opinion  or  IME  concerning  whether  the  second  cervical  surgery  Dr.  Gallagher  has \nrecommended  is  related  to  and  reasonably  necessary  for  treatment  of the  claimant’s admittedly \ncompensable  neck/cervical  spine  injury  of  February  4,  2022. (Comms’n  Ex.  1  at 3;  and see \nrespondents’ motion).   \n     In his response to  the respondents’ motion  (the response, or the claimant’s response) filed \nwith the Commission on February 12, 2024, the claimant contends the respondents are not entitled \nto a second opinion or IME in this case since, prior to initially taking a position controverting the \nsurgery in question, they requested a utilization or peer review from a Dr. Andrew Jackson, a board- \ncertified orthopedic surgeon associated with MediCall. MediCall is associated with Liberty Mutual \nManaged  Care,  LLC,  Utilization  Management  and  is  based  in  Wausau,  Wisconsin.    As  the \nclaimant’s attorney cleverly, humorously, and correctly points out in the claimant’s response to the \nrespondents’ motion, Dr. Andrew Jackson shares his name with the seventh (7\nth\n) President of the \nUnited  States  (POTUS);  however,  Dr.  Andrew  Jackson  is  not  licensed  to  practice  medicine  in \nArkansas. (Comms’n Ex. 1 at  3;  and see Exhibit A to  the claimant’s  response). Dr. Jackson  has \nopined that the cervical surgery Dr. Gallagher has recommended is, “non-certified.” (Id.)   \n     To  date  it  appears  from  the  record,  as  explained  in  more  detail  below,  no  independent, \nobjective, Arkansas-licensed medical doctor who specializes in the diagnosis and treatment of the \ncervical spine has as yet had the opportunity to examine the claimant’s relevant medical records, or \nto visit with and personally examine Dr. Gallagher’s proposed second cervical spine surgery in order \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n4 \n \nto  opine  whether  the  proposed  surgery  is  related  to  or  reasonably  necessary  in  light  of    the \nclaimant’s admittedly compensable February 4, 2022, head and neck/cervical spine injuries. \n     The record herein  consists of the following documents: (1) the amended prehearing order \nfiled  February  26,  2024,  marked  as  Comms’n  Ex. 1;  (2) the  respondents’  motion  for  a  second \nopinion  or  IME,  and  the  medical  records  attached  thereto  as  Respondents  Exhibit  1;  (3)  the \nclaimant’s  response  to the respondents’  motion,  and  the  medical  exhibit  attached  thereto  as \nClaimant’s Exhibit 1A; and the respondents’ reply email dated Tuesday, February 20, 2024.   \nDISCUSSION \n     Ark. Code Ann. §11-9-511(a) (2023 Lexis Replacement) states: \nAn injured employee claiming to be entitled to compensation shall \nsubmit  to  such  physical  examination  and  treatment  by  another \nqualified  physician,  designated  or  approved  by  the  Workers’ \nCompensation  Commission,  as  the  Commission may  require  from \ntime to time if reasonable and necessary. \n \n(Emphasis added). And see, e.g., Diggs v. Cattlemen’s Livestock Mkt., Inc., 2009 Ark. App., 306 \nS.W.3d 20 (2009). Consequently, the Act and relevant precedent make it abundantly clear the ALJ \nhas  the  authority  pursuant  to  the  aforementioned  statute  to  grant  a party’s  – or  the  parties’  –   \nrequest, or requests, for an IME; and/or to order an IME on his own initiative if the ALJ deems the \nIME to be, “reasonable and necessary” under the circumstances of a particular claim.   \n    In  this  case,  I  do  find  that  an  IME  with  an  independent,  objective,  Arkansas-licensed \nphysician is not only reasonable and necessary on these facts, it will serve to provide more details, \nand a helpful if not necessary – additional perspective concerning the proposed surgery in question.     \n     The claimant contends the respondents are not entitled to a second opinion or an IME since \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n5 \n \nDr.  Andrew  Jackson  has  deemed  Dr.  Gallagher’s  proposed  surgery  to  be,  “non-certified.” \nHowever,  while  a  physician  associated  with  the  respondents’  own  utilization  management \ncompany  reviewed  medical  records  and  determined  from  them  that  Dr.  Gallagher’s  proposed \nsecond cervical spine surgery does not meet the respondents’ certification standards may give the \nrespondents’  a  cognizable  reason  to  question  and/or  controvert  the  proposed  surgery,  such  a \nutilization review in and of itself is insufficient on these facts to assist in informing either party or \nthe  Commission –  specifically,  the  ALJ  herein – concerning whether Dr. Gallagher’s proposed \nsecond cervical spine surgical procedure is either related to or reasonably necessary in light of the \nthe claimant’s compensable neck/cervical spine injury.  \n     Indeed, as the respondents’ attorney points out in his email reply of February 20, 2024, it \nappears from the medical records contained in RX1 the claimant has a history of past cervical spine \nand related problems that no independent, clearly objective Arkansas-licensed physician has yet \nhad an opportunity to review and consider in light of Dr. Gallagher’s recommendation for a second \ncervical  spine  surgery.  These  facts  and  the  applicable  law  compel  me  to  find  that  a  new, \nindependent,  objective,  Arkansas-licensed  cervical  spine  specialist’s  review  of  the  claimant’s \nrelevant  medical  records,  as  well  as  a  new  physician  having  the  opportunity  to  visit  with  and \nconduct  an  in-person  examination  of  the  claimant  for  the  purpose  of  providing  an  independent, \nobjective opinion as to whether the second cervical spine surgery the claimant’s chosen physician, \nDr. Gallagher, has recommended is related to and reasonably necessary in light of the claimant’s \nadmittedly  compensable  head  and  neck/cervical  spine  injuries  of  February  4,  2022,  is  not  only \nreasonable and necessary on these facts and the totality of the record herein, it is also in the very \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n6 \n \nbest  interest  of  the  claimant.  And  it  may  very  well  provide  the  respondents  the  additional \ninformation they require to make an informed decision based on the applicable Arkansas workers’ \ncompensation  law –  and  not  a  peer  review/utilization  management  medical  records  review  that \nonly addressed whether the proposed surgery met the respondent’s certification review standards \n–  as  to  whether  the  proposed  surgery  is  related  to  and  reasonably  necessary  in  light  of  the \nclaimant’s admittedly compensable injury. Finally, it will definitely serve to help assist and inform \nthe  Commission  as  to  whether  the  recommended  surgery  complies  with  the  applicable  legal \nstandard and, significantly, whether it is more likely than not to be beneficial to the claimant rather \nthan ineffective – or even harmful to him.   \n     In this claim the ALJ is well within the rather broad discretionary authority the Act provides \nto order an IME in cases such as the one at bar.  Therefore, for all the reasons set forth above, I \nhereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction over this claim. \n2. The stipulations to which the parties agreed are set forth in the amended prehearing order \nfiled February 26, 2024, and hereby are accepted as facts. \n   \n3. The respondents’ motion for an IME is GRANTED pursuant to the Commission’s authority \nto order an IME(s) as set forth in Ark. Code Ann. § 11-9-511. I specifically find an IME to \nbe both reasonable and necessary since it will allow an independent, objective, Arkansas-\nlicensed physician and spine specialist to render what is in essence a second opinion for \nthe edification and benefit of both the claimant and the respondents.   \n \n4. I find Dr. Zachary Mason, a neurosurgeon, to be an  appropriate physician to perform an \nIME  in  this  case.  Therefore,  subject  to  his  agreeing  to  conduct  an  IME  herein  I  hereby \nappoint Dr. Zachary Mason, a neurosurgeon with Neurological Surgery Associates, 5201 \n\nJoseph Wayne Powell, AWCC No. H202652 \n \n7 \n \nNorthshore  Drive,  Suite  100,  North  Little  Rock,  Arkansas  72118  as  the  IME  physician. \nMoreover, I respectfully request Dr. Mason agree to be the IME physician herein, and that \nhe examine any and all relevant medical records including, but not limited to, diagnostic \nfilms, and any other relevant test results relating to the claimant’s cervical spine condition, \nand  to  personally  visit  with, examine, and evaluate the claimant’s  current  cervical  spine \ncondition  in  order  to  determine  whether  the  proposed  second  surgical  procedure  Dr. \nGallagher  has  recommended  is  related  to  and  reasonably  necessary  in  light  of  the \nclaimant’s admittedly compensable injury of February 4, 2022. \n \n5. This  IME  shall  in  all  respects  be  governed  by  and  conducted  in  accordance  with  the \napplicable provisions of Arkansas law set forth above in Paragraph 3 of these “Findings of \nFact and Conclusions of Law”. The parties shall submit a copy of this IME order to Dr. \nMason,  along  with  any  and  all  relevant  medical  records  including  but  not  limited  to  the \noriginal media of any and all relevant diagnostic test results, as well as any and all other \nrelevant  medical  records  or  other  documents,  if  any,  they  want  Dr.  Mason  to  review  in \norder to inform and render his opinion herein. \n \n6. The parties shall in all respects cooperate in scheduling the date and time of the IME with \nDr.  Mason,  and  in  providing  Dr.  Mason  with  copies  of  all  the  records  set  forth  in  the \nimmediately preceding Paragraph 5. \n \n7. If  for  some  reason  Dr.  Mason  is  unavailable  and/or  unwilling  to  conduct  the  IME,  the \nparties  shall  communicate  and  attempt  to  agree  on  an  Arkansas-licensed  orthopedic \nsurgeon or neurosurgeon who specializes in the diagnosis and treatment of cervical spine \nconditions to conduct the IME.   \n \n8. If the parties are unable to agree on a physician, they shall jointly agree on and submit a \nlist containing the names of four (4) physicians who have the qualifications and expertise \nas  set  forth  in  Paragraph  6, supra,  and  the  ALJ  will  choose  an  IME  physician  from  the \nparties’ list.    \n \n \nIT IS SO ORDERED. \n \n \n        Mike Pickens \nAdministrative Law Judge \n \n \n \nMP/mp","textLength":14004,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202652 JOSEPH WAYNE POWELL, EMPLOYEE CLAIMANT STRUCTURLAM MASS TIMBER U.S., INC., EMPLOYER RESPONDENT EMPLOYERS INS. CO. OF WAUSAU/ LIBERTY MUTUAL INS. CO., INS. CARRIER/TPA RESPONDENT OPINION AND ORDER FILED FEBRUARY 27, 2024, GRANTING RESPONDENTS’ MOTI...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["neck","cervical"],"fetchedAt":"2026-05-19T22:57:52.050Z"},{"id":"full_commission-H200157-2024-02-27","awccNumber":"H200157","decisionDate":"2024-02-27","decisionYear":2024,"opinionType":"full_commission","claimantName":"Lindsey Crane","employerName":"Hobby Lobby","title":"CRANE VS. HOBBY LOBBY AWCC# H200157 FEBRUARY 27, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Crane_Lindsey_H200157_20240227.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Crane_Lindsey_H200157_20240227.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H200157 \n \nLINDSEY CRANE,  \nEMPLOYEE \n \nCLAIMANT \nHOBBY LOBBY, EMPLOYER \n \nRESPONDENT \nSEDGWICK CLAIMS MANAGEMENT \nSERVICES, INC., CARRIER/TPA \nRESPONDENT \n \nOPINION FILED FEBRUARY 27, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, Attorney \nat Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE KEVIN J. STATEN, \nAttorney at Law, Little Rock, Arkansas. \n \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n The respondents appeal and the Claimant cross-appeals an opinion \nand order of the Administrative Law Judge filed September 8, 2023.  In said \norder, the Administrative Law Judge made the following findings of fact and \nconclusions of law:  \n1.  The Arkansas Workers' Compensation Commission has \njurisdiction over this claim. \n                \n 2. The stipulations agreed to by the parties at a pre-hearing     \n               Conference conducted on May 18, 2023, and contained in a        \n               pre-hearing order filed on May 26, 2023 are hereby accepted    \nas fact. \n \n\nCRANE- H200157   2\n  \n \n \n3.  Respondent have failed to prove that an IME is both reasonable \n     and necessary in order to make a judgment about this claim,    \n     and that motion is therefore denied. \n \n4. Claimant has met her burden of proof by a preponderance  \n    of evidence that she is entitled to temporary total disability  \n    benefits beginning April 18, 2023 and continuing to a date   \n    to be determined. \n  \n 5. Claimant has met her burden of proof by a preponderance of   \n               evidence that she is entitled to additional medical benefits as \n     directed by Dr. James Blakenship for her lumbar back injury.  \n     .   \n6. Claimant has failed to prove by a preponderance of the evidence  \n    that she is entitled to temporary partial disability benefits from  \n    February 27, 2023, until April 18, 2023. \n \n7. Respondent has controverted claimant’s entitlement to all   \n    indemnity benefits from April 18, 2023, to a date to be  \n    determined.    \n                        \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's September \n8, 2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n\nCRANE- H200157   3\n  \n \n \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents \n \n \n \nDISSENTING OPINION \n \n         I respectfully dissent from the majority finding.  After my de novo \nreview of the file, I find that the respondent’s motion for an independent \nmedical examination is warranted and that the claimant has not proven by a \n\nCRANE- H200157   4\n  \n \n \npreponderance of the credible evidence that she is entitled to additional \nmedical treatment and additional temporary total disability benefits. \n           The claimant was an employee of the respondent employer when \nshe was injured on December 13, 2021, lifting “large pieces of wall decor, \nhaving to take them off the top and carry them down and load them onto a – \nlike a freight cart and then having to push them across the store.” (Hrng. \nTr., P. 25). The claimant initially treated at MedExpress in Fort Smith before \nbeing referred Conservative Spine Clinic in Fayetteville, where treatment \nbegan on January 19, 2022. (Cl. Ex. 1, P. 3).  After a lumbar MRI was \nconducted, the claimant was diagnosed with “[a]nnular fissure with small \ncentral disc protrusion” at L4-L5. (Cl. Ex. 1, P. 12). The claimant then began \ntreating with Dr. David Knox, a neurologist with NWA Neurosurgery Clinic \non March 30, 2022.  (Cl. Ex. 1, P. 17).  \n           A functional capacity evaluation was conducted on June 8, 2022, \nand the examiner noted that the claimant’s efforts were unreliable, noting \nher actual abilities could be higher than that demonstrated during the \nevaluation, ultimately determining that the claimant is capable of working in \nthe light category.  (Resp. Ex. 1, P. 3).  He went on to state the overall \nresults of the examination do not represent a true and accurate \nrepresentation of the claimant’s overall physical capabilities.  Id.  On July \n20, 2022, Dr. Knox concluded that “I do not believe any neurosurgical \n\nCRANE- H200157   5\n  \n \n \navenues would afford any benefit to her complaints,” saying that he would \ncontinue to treat claimant on an as-needed basis as he did “not believe we \nhave anything to offer her.”  (Cl. Ex. 1, P. 23).  Pursuant to the Change of \nPhysician Order, the claimant transferred her care to Dr. James \nBlankenship, who recommended surgery after seeing the claimant only one \ntime and took the claimant off work on February 27, 2023.  (Cl. Ex. 1, Pp. \n24-29). \n           In April 2023, the respondent filed a motion requesting an \nindependent medical examination by Dr. Owen Kelly.  (Hrng. Tr, P. 5).  The \nclaimant objected and the parties agreed to an examination by Dr. Scott \nSchlesinger. Id.  There were difficulties in setting up the examination with \nDr. Schlesinger’s office and the parties were unable to obtain the \nindependent medical examination prior to the hearing.  Id.  The claimant \nultimately objected to an IME citing an alleged delay in temporary total \ndisability benefits that would result from waiting for an exam to be \nscheduled.  The ALJ ultimately agreed and denied the respondent’s motion \nfor an independent medical examination and found the claimant was \nentitled to additional medical treatment and additional TTD benefits.  I \ndisagree.  \n\nCRANE- H200157   6\n  \n \n \nThe threshold question in this appeal is whether the independent \nmedical examination (IME) requested by the respondents is reasonable and \nnecessary as required by our rules, which state that: \n[a]n injured employee claiming to be entitled to compensation shall \nsubmit to such physical examination and treatment by another qualified \nphysician, designated or approved by the Workers' Compensation \nCommission, as the commission may require from time to time if \nreasonable and necessary.  Ark. Code Ann. § 11-9-511(a). \nIn his September 8, 2023 Opinion, the ALJ appears to equate the \nrespondents’ denial of additional temporary total disability (TTD) benefits \nwith the reasonableness of ordering an IME, agreeing with the claimant that \n“delaying the matter was creating a hardship for her.”  (P. 8).  While \nhighlighting that the respondents did not create the delay in scheduling an \nIME, the ALJ, without more, states that he “cannot find it reasonable to \ndelay this matter longer for an IME when claimant is not receiving TTD, \nespecially since I do not believe the IME to be necessary for a decision to \nbe reached in this matter” Id. \nThis approach, however, does not answer the question of whether \nan IME would be reasonable and necessary in this case.  While the ALJ \nholds that Dr. Knox and Dr. Blankenship’s opinions are not “radically \ndifferent,” because each arrived at the conclusion that the claimant has an \n\nCRANE- H200157   7\n  \n \n \nannular fissure at L4-L5, this disregards the way the doctors wish to treat \nthe claimant.  On July 20, 2022, Dr. Knox concluded that “I do not believe \nany neurosurgical avenues would afford any benefit to her complaints,” \nsaying that he would continue to treat claimant on an as-needed basis as \nhe did “not believe we have anything to offer her.”  (Cl. Ex. 1, P. 23).  Dr. \nBlankenship, however, recommended surgery, stating that: \n1. She has failed routine and usual conservative \nmeasures with two different rounds of physical \ntherapy with people I know.  She has had a \nLESI.  None of these things afforded her any \nrelief and she is getting worse. \n \n2. Despite the fact that she has 36 out of 56 \nconsistency measures, I feel very comfortable \nin the fact that this patient wants to get better.  \nI think the inconsistencies had to do with fear \navoidance because she has been hurting as \nlong as she has. \n \n3. The rationale for what I have offered her \nsurgically has more to do with that she has \ngross annular fissuring at L4-L5.  She has a \nposterior disc protrusion but more importantly \nshe has marked movement of the disk space in \nflexion and extension with collapse anteriorly \nand marked splaying posteriorly in flexion, \ncompletely abnormal for a patient her age.  I \nwould recommend a lateral approach since her \niliac crest is low enough with a lateral interbody \narthrodesis at L4-L5 and then posterior \nBridgePoint clamping with facet disruption and \nposterolateral arthrodesis.  (Cl. Ex. 1, P. 28). \n \n \n\nCRANE- H200157   8\n  \n \n \nBecause these opinions vary so greatly in their conclusions \nregarding the claimant’s current state, it is wholly reasonable to require that \nthe claimant undergo an IME to serve as a third opinion when one specialist \nhas opined no surgery is recommended, and the other specialist has \nrecommended a lumbar fusion. It defies logic for the ALJ to find the \nopinions of these two doctors are not “radically different”.  It is hard to \nimagine two more radically different opinions, which makes the reason for \nan independent medical examination even more important in a case such \nas this. \nRegarding the question of whether an IME would be necessary, the \nALJ again emphasizes the delay that obtaining an IME would require.  \nOnce again, this does not answer the call of the questions regarding \nwhether the examination would be reasonable and necessary, specifically \nin a case where the medical opinions could not be more different.  The ALJ \nfocuses, not on the facts of the case at hand, but rather which doctor \ncorrectly evaluated the claimant’s inconsistent effort on her functional \ncapacity evaluation (FCE) and which avenue could “bring claimant some \nrelief.” (Opinion P. 9). \nAt their barest, the facts reflect one medical opinion from the \nclaimant’s primary treating physician, Dr. Luke Knox, stating that there is no \nfurther treatment that would benefit the claimant after reviewing the results \n\nCRANE- H200157   9\n  \n \n \nof her MRI.  Dr. Blankenship, after a single visit and based entirely on his \nown beliefs regarding the FCE, recommended surgery and determined that \nthe claimant is unable to work.  It is clearly necessary to require the \nclaimant to submit to an IME when such wildly different results have arisen \nfrom the same set of facts and for these reasons, it is clearly both \nreasonable and necessary to require an IME under these circumstances. \nArkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires \nan employer to provide an employee with medical and surgical treatment \n\"as may be reasonably necessary in connection with the injury received by \nthe employee.\"  The claimant has the burden of proving by a \npreponderance of the evidence that the additional treatment is reasonable \nand necessary. Nichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 \nS.W.3d 148 (2010). What constitutes reasonably necessary treatment is a \nquestion of fact for the Commission Gant v. First Step, Inc., 2023 Ark. App. \n393, 675 S.W.3d 445 (2023).  \nIn assessing whether a given medical procedure is reasonably \nnecessary for treatment of the compensable injury, the Commission \nanalyzes both the proposed procedure and the condition it sought \nto remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. 153, \n426 S.W.3d 539 (2013). \n\nCRANE- H200157   10\n  \n \n \nThe Commission has authority to accept or reject medical opinion \nand to determine its medical soundness and probative force.  Gant v. First \nStep, Inc., 2023 Ark. App. 393, 675 S.W.3d 445 (2023).  Furthermore, it is \nthe Commission's duty to use its experience and expertise in translating the \ntestimony of medical experts into findings of fact and to draw inferences \nwhen testimony is open to more than a single interpretation.  Id. \nWe are left to consider which provider’s opinion should bear greater \nweight. Although the ALJ relies heavily on Dr. Blankenship’s report, \nbelieving that surgery would bring claimant “relief,” Doctor Knox was the \nclaimant’s treating physician for four months between March 30, 2022 and \nJuly 20, 2022, personally treating and examining the claimant before \nreaching the conclusion that there were no further treatment options for the \nclaimant.  (See Cl. Ex. 1, Pp. 3-23).  Doctor Blankenship, however, within a \nsingle visit on February 27, 2023, determined that the claimant would need \nto undergo surgery, including a fusion,.  (Cl. Ex. 1, Pp. 24-29).  In doing so, \nDr. Blankenship took the claimant off work, disregarding the results of the \nFCE.  Id. \nWhile Dr. Blankenship believes that the claimant cannot work until \nshe undergoes surgery, her FCE examiner stated that the claimant \n“demonstrated the ability to perform work in at least the LIGHT \nclassification,” stating that “[s]ince the results indicate an unreliable effort, \n\nCRANE- H200157   11\n  \n \n \nher actual abilities could be higher than that demonstrated during this \nevaluation.  The overall results of this evaluation do not represent a true \nand accurate representation of this client’s overall physical capabilities.” \n(Resp. Ex. 1, P. 3)(emphasis in original).  Dr. Blankenship, during his initial \nvisit with the claimant and later the ALJ, each hypothesize that the cause of \nthe claimant’s unreliable results on her FCE were due to “self-limiting \nbecause of the problem in her back” and “fear avoidance because she has \nbeen hurting as long as she has.”  (Opinion P. 9; Cl. Ex. 1, P. 28).  In \nproviding rational for why the claimant’s effort was unreliable in her FCE, \nboth Dr. Blankenship and the ALJ engage in spurious conjecture, which is \nwell settled to not be a substitute for credible evidence.  Smith-Blair, Inc. v. \nJones, 77 Ark. App. 273, 72 S.W.3d 560 (2002);.  There is no basis for \nthese assertions and no evidence in the record to support them.  While Dr. \nBlankenship was “comfortable” making this determination, he was not the \nclaimant’s treating physician until well over two years after the date of the \nclaimant’s compensable injury.  Dr. Knox is much better suited to make \nsuch a determination and did so, finding that the claimant’s treatment was \ncomplete. \nIt is unreasonable to rely on Dr. Blankenship’s opinion that the \nproposed surgery in this matter is necessary or reasonable.  This decision \nwas made after a single visit and in contradiction to all previous treatment \n\nCRANE- H200157   12\n  \n \n \nthe claimant received.  When balancing the two medical opinions, as well \nas the results to the claimant’s functional capacity evaluation, it is clear that \nany surgery is unreasonable under the circumstances and the claimant \nfailed to meet her burden of proof.  \nTo prevail on a request for additional temporary total disability \nbenefits, our rules require that the claimant must prove by a preponderance \nof the evidence that he is totally incapacitated from earning wages and \nremains in his healing period.  Hickman v. Kellogg, Brown & Root, 372 Ark. \n501, 277 S.W.3d 591 (2008).  The healing period ends when the employee \nis as far restored as the permanent nature of his injury will permit, and if the \nunderlying condition causing the disability has become stable and if nothing \nin the way of treatment will improve that condition, the healing period has \nended. Id. The determination of when the healing period has ended is a \nfactual determination for the Commission.  Id. \nThe record here is clear that the claimant was neither in her healing \nperiod nor unable to work once released from Dr. Knox’s care on July 20, \n2022.  Dr. Knox, who was best positioned to determine the claimant’s \nmedical needs, determined that the claimant should be released from care. \nThere were no additional treatment options for the claimant.  The FCE \nresults established that even if the claimant was exerting her best effort, \nwhich the examiner doubted, the claimant could work in at least the light \n\nCRANE- H200157   13\n  \n \n \ncategory.  She is not unable to work, and Dr. Blankenship’s opinion to the \ncontrary is unreliable and contrary to the weight of the evidence.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n                                                                               ________________ \n                                    MICHAEL R. MAYTON, Commissioner","textLength":17692,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H200157 LINDSEY CRANE, EMPLOYEE CLAIMANT HOBBY LOBBY, EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 27, 2024","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["lumbar","back"],"fetchedAt":"2026-05-19T22:29:45.989Z"},{"id":"alj-H101867-2024-02-27","awccNumber":"H101867","decisionDate":"2024-02-27","decisionYear":2024,"opinionType":"alj","claimantName":"Thurn Apple","employerName":"White River Area Agency On Aging","title":"APPLE VS. WHITE RIVER AREA AGENCY ON AGING AWCC# H101867 FEBRUARY 27, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/APPLE_THURN_H101867_20240227.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"APPLE_THURN_H101867_20240227.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H101867 \n \nTHURN K. APPLE, EMPLOYEE            CLAIMANT \n \nWHITE RIVER AREA AGENCY ON AGING, EMPLOYER         RESPONDENT \n \nAGING SERVICES FUND/ \nRISK MANAGEMENT SERVICES, CARRIER/TPA          RESPONDENT \n            \nOPINION FILED FEBRUARY 27, 2024 \n \nHearing  before  Administrative  Law  Judge  James  D.  Kennedy  in  Mountain  Home, \nBaxter County, Arkansas, on February 21, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by Mr. Jarrod S. Parrish, Attorney-at-Law of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  February 21,  2024,  in Mountain \nHome, Arkansas, on respondents’ Motion to Dismiss for failure to prosecute pursuant to Rule \n099.13 of the Arkansas Workers’ Compensation Act.  The claimant was pro se and failed to \nappear for the hearing.  The claimant had filed multiple Form AR-Cs on the following dates: \nFebruary 23, 2021; March 1, 2021; January 10, 2023; and June 5, 2023. The employer had \nfiled a First Report of Injury on February 8, 2021, stating that the claimant had slipped and \nfell while going down the steps of a client. The Form AR-N filed on the same date provided \nthat the claimant had injured her “butt, left hip, neck, back, arms, head, and left ankle.”  The \nForm AR-2 filed on February 26, 2021, provided that the respondent was controverting the \nclaim, contending that the claim did not occur within the course and scope of employment.  \nAn Opinion by the Full Commission dated September 20, 2023, adopted the Opinion issued \nby the administrative law judge that held that the claimant had been assigned a five percent \n(5%)  rating  to  the  body  as  a  whole,  which  had  been  accepted  by  the  respondents  with  all \n\nAPPLE – H101867 \n \n2 \n \nappropriate benefits paid, that the claimant was entitled to wage-loss in the amount of  five \npercent (5%) and attorney fees, but was not entitled to permanent and total disability.  The \nclaimant was originally represented by Laura Beth York, who was allowed to withdraw by an \nOrder from the Full Commission dated December 1, 2023.   A Motion to Dismiss was filed on \nOctober 16, 2023, requesting that the matter be dismissed for failure to prosecute pursuant \nto Commission Rule 099.13.  The claimant has not requested an additional hearing to date \nand  there  is  no  record  of  her  contacting  the  Commission  after  the  date  her  attorney  was \nallowed to withdraw.   \n Appropriate  notice  was  provided  to  the  claimant  notifying  her  that  a  hearing  on  the \nMotion to Dismiss was set for February 21, 2024, in Mountain Home, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nJarrod  S.  Parrish  appeared  on  behalf  of  the  respondents and asked  that  the  matter  be \ndismissed for lack of prosecution. \n After  a  review  of  the  record  as  a  whole,  to  include  all  evidence  properly  before  the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent,  I  find  that  this  matter  should  be  dismissed  without  prejudice,  for  failure  to \nprosecute pursuant to Ark. Code Ann. § 11-9-702 and Rule 099.13 of the Arkansas Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss this \nclaim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3658,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H101867 THURN K. APPLE, EMPLOYEE CLAIMANT WHITE RIVER AREA AGENCY ON AGING, EMPLOYER RESPONDENT AGING SERVICES FUND/ RISK MANAGEMENT SERVICES, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 27, 2024 Hearing before Administrative Law Judge James D. Kennedy in...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2","denied:1"],"injuryKeywords":["hip","neck","back","ankle"],"fetchedAt":"2026-05-19T22:57:45.833Z"},{"id":"alj-H201989-2024-02-27","awccNumber":"H201989","decisionDate":"2024-02-27","decisionYear":2024,"opinionType":"alj","claimantName":"Velta Nolan","employerName":"D&p Investments, Inc","title":"NOLAN VS. D&P INVESTMENTS, INC AWCC# H201989 FEBRUARY 27, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/NOLAN_VELTA_H201989_20240227.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NOLAN_VELTA_H201989_20240227.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H201989 \n \nVELTA NOLAN, Employee CLAIMANT \n \nD&P INVESTMENTS, INC., Employer RESPONDENT \n \nMARKEL SERVICE, INC., Carrier RESPONDENT \n \nEQUIAN, LLC, Carrier GROUP HEALTH CARRIER \n \n OPINION FILED FEBRUARY 27, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Russellville,  Pope \nCounty, Arkansas. \n \nClaimant represented by AARON L. MARTIN, Attorney at Law, Fayetteville Arkansas. \n \nRespondents represented by RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This  case  comes  on  for  review  following  a  hearing  on  February  15,  2024,  regarding \nEquian, LLC’s, a group health carrier, right to recover subrogation for medical treatment paid on \nbehalf of the claimant. \n On December 13, 2023, notice was sent to Equian, LLC via certified mail advising that a \nhearing  would  be  conducted  on  February  15,  2024,  beginning  at  10:30 a.m. at the Workers’ \nCompensation  Commission  offices  in  Russellville,  Arkansas.    The  hearing  was  to  address  a \ndetermination  of  any  potential  liens  involving  payment  of  medical  expenses  or  long-term \ndisability  by  any  outside  parties  in  accordance  with  A.C.A.  §11-9-411.    United  States  Postal \nService records indicate that the notice was delivered and picked up by an individual at a United \nStates  Postal  facility  on  December  26,  2023,  at  11:48  a.m.    This  tracking  information  can  be \nfound at Commission’s Exhibit 1, Page 1.  Despite having received notice of the hearing, Equian, \n\nNolan – H201989 \n \n-2- \nLLC failed to respond to the hearing notice in any manner whatsoever and failed to appear at the \ndate and time of said notice.   \n The claimant in this matter is a 54-year-old female who injured her low back on February \n4, 2019. The respondents accepted the claim as compensable and paid all related expenses until \nbenefits  were  stopped  following  an  independent  medical  evaluation.  The  claimant  sought \nadditional treatment, which may have been paid for through her group health insurance carrier. \n The  parties  reached  a  settlement  agreement  and  attempted  to  contact  Equian,  LLC \nregarding  any  potential  liens.  On  November  2,  2023,  the  respondents  filed  a  Motion  to \nExtinguish  Lien,  and  on  November  14,  2023,  the  Commission  sent  a  letter  to  Ms.  Sweatt  with \nEquian,  LLC  asking  for  acknowledgement  of  a  lien.  Both  the  Motion  and  letter  have  gone \nunanswered by Equian, LLC and no such lien has been provided. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  Arkansas  Workers  Compensation  Commission  has  jurisdiction  to  determine  any \npotential  liens  involving  payment  of  medical  expenses  or  long-term  disability  by  any  outside \nparties in accordance with A.C.A. §11-9-411. \n 2. Equian, LLC has failed to prove the existence of any potential lien involving payment \nof medical expenses or long-term disability in accordance with A.C.A. §11-9-411.  \n \n \n\nNolan – H201989 \n \n-3- \n ORDER \n Equian,  LLC  is  not  entitled  to  a  lien  involving  repayment  of  medical  expenses  or  long-\nterm disability benefits paid to the claimant regarding Workers’ Compensation Claim Number \nH201989 which involved a February 4, 2019, back injury. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":3893,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H201989 VELTA NOLAN, Employee CLAIMANT D&P INVESTMENTS, INC., Employer RESPONDENT MARKEL SERVICE, INC., Carrier RESPONDENT EQUIAN, LLC, Carrier GROUP HEALTH CARRIER OPINION FILED FEBRUARY 27, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Rus...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:57:47.893Z"},{"id":"alj-G807060-2024-02-27","awccNumber":"G807060","decisionDate":"2024-02-27","decisionYear":2024,"opinionType":"alj","claimantName":"Tina Melius","employerName":"Chapel Ridge Nursing Ctr","title":"MELIUS VS. CHAPEL RIDGE NURSING CTR. AWCC# G807060 FEBRUARY 27, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MELIUS_TINA_G807060_20240227.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MELIUS_TINA_G807060_20240227.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G807060 \n \nTINA MELIUS, Employee CLAIMANT \n \nCHAPEL RIDGE NURSING CTR., Employer RESPONDENT \n \nAMTRUST NORTH AMERICA, Carrier RESPONDENT \n \n \n \n OPINION FILED FEBRUARY 27, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents   represented   by   WILLIAM   C.   FRYE,   Attorney   at   Law,   North   Little   Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On November 30, 2023, the above captioned claim came on for a hearing at Fort Smith, \nArkansas.   A pre-hearing conference was conducted on September 25, 2023, and a Pre-hearing \nOrder  was  filed  on  October  31,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on July 11, \n2018. \n 3. The claimant sustained a compensable piriformis injury to her buttock and right thigh \non July 11, 2018. \n 4. The compensation rates are the maximum. \n\nMelius – G807060 \n \n-2- \n 5. All prior opinions are res judicata and the law of this case. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  is  entitled  to  additional  medical  treatment  for  her  compensable \npiriformis  and  right  thigh  injuries  that  occurred  on  July  11,  2018,  or  alternatively,  whether \nClaimant sustained a compensable injury to her low back on or about July 11, 2018. \n 2. Whether Claimant is entitled to medical treatment for compensable low back injury. \n 3.  Whether  Claimant  is  entitled  to  temporary  partial  disability  benefits  from  September \n19, 2019, to a date yet to be determined. \n 4. Respondents raise the Statute of Limitations defense. \n 5. Whether Claimant’s attorney is entitled to an attorney fee. \nThe claimant's contentions are as follows: \n“1. The above-listed proposed stipulations. \n \n2. The Claimant was injured on July 11, 2018 while assisting EMS \npersonnel who were moving a patient from a bed to a gurney. The \nClaimant  was  grabbed  by  the  patient  while  lowering  the  patient \nonto  the  gurney  which  caused  the  claimant  to  come  up  onto  her \nright  tiptoes.  The  Claimant  felt  a  pop  in  her  glute  and  a  muscle \nspasm in her thigh and calf. \n \nOn  July  11,  2018,  the  Claimant  was  instructed  to  see  Dr.  Keith \nHolder at Mercy Clinic Occupational Medicine with complaints of \nsharp  pain  in  right  glute.  Dr.  Holder  diagnosed  the  claimant  with \nstrain  of  muscle,  fascia  and  tendon  of  right  hip.  Dr.  Holder  also \nrestricted  the  Claimant  to  light  duty  with  a  follow-up  in  seven  (7) \nto  ten  (10)  days  as  well  as  hip  exercises  and  a  cane  to  ambulate \nwith. \n \nOn  July  19,  2018,  the  Claimant  returned  to  Dr.  Holder  for  a \nfollow-up where she stated that the pain is worse at night as well as \nwith  sitting.  Dr.  Holder  kept  the  Claimant  restricted  to  light  duty \nand referred her for therapy. \n \n\nMelius – G807060 \n \n-3- \nThe   Claimant   continued   to   follow-up   with   Dr.   Holder   who \ncontinued   to   refer   the   Claimant   for   therapy   as   well   as   her \nrestriction to light duty. \n \nOn  August  13,  2018,  the  Claimant  attended  physical  therapy  for \nstrain  of  muscle,  fascia  and  tendon  of  right  hip  where  it  is  noted \nshe has decreased range of motion and strength as well as gait and \npostural deficits. The Claimant was approved for six (6) visits. \n \nOn  August  23,  2018,  the  Claimant  was  seen  by  Dr.  Holder  where \nhe recommended the Claimant to finish therapy and that he would \nrequest  an  MRI  of  the  Claimant’s  lumbar  spine  and  right  thigh \nwhich was denied. \n \nOn  October  2,  2018,  the  Claimant  once  again  seen  by  Dr.  Holder \nwhere  he  referred  the  Claimant  for  steroid  injection  by  pain \nmanagement. Dr. Holder kept the Claimant on light duty. \n \nOn  November  13,  2018,  the  Claimant  was  seen  by  Dr.  Brian \nGoodman  for  pain  management  where  it  he  recommended  the \nClaimant getting trigger point injection in the right  gluteal muscle \nas well as stretching exercises and to follow-up in one (1) month. \n \nThe  Claimant  returned  once  more  to  Dr.  Holder  for  a  follow-up. \nHowever,  any  further  treatment  was  denied  by  the  Respondents. \nWhile the Claimant was going through the workers’ compensation \nprocess,  she  continued  to  seek  treatment  using  her  own  private \nhealth insurance. \n \nOn July 18, 2019, the Claimant present to Dr. Thomas Cheyne for \ncontinued right hip pain. Dr. Cheyne’s diagnosed was chronic right \nhip  pain,  probable  hamstring  tendon  injury.  He  recommended  an \nMRI  of  right  hip  and  pelvis  as  well  as  referred  the  Claimant  for \nphysical therapy. \n \nThe Claimant had an MRI completed which was normal. However, \nDr.  Cheyne  referred  the  Claimant  for  a  second  opinion  to  try  to \nlocate  the  source  of  the  pain.  In  the  meantime,  the  Claimant \ncontinued to attend physical therapy for a right hamstring injury. \n \nOn August 21, 2019, the Claimant was seen by Dr. Greg Jones for \na  second  opinion.  Dr.  Jones  notes  the  Claimant’s  radicular  pain \nsymptoms down the right leg. Dr. Jones states that he believes that \nthe  Claimant  has  suffered  a  low  back  injury  and  has  requested  a \nlumbar MRI. \n\nMelius – G807060 \n \n-4- \n \nThe Claimant returns to Dr. Jones post-MRI on September 4, 2019 \nand  it  was  found  that  the  Claimant  has  lumbar  stenosis,  facet \nhypertrophy and degenerative disc changes at L4-5 and L5-S1 disc \nprotrusion.  Dr.  Jones  changes  the  Claimant’s  physical  therapy  to \nfocus on the Claimant’s lumbar spine but that she is to continue on \nlight duty work restrictions. \n \nThe Claimant continued with physical therapy treatment. \n \nOn  November  23,  2021,  the  Claimant  returned  to  Dr.  Cheyne  for \ncontinued  pain  where  Dr.  Cheyne  opined  his  opinion  that  they \nright  glute  pain  comes  from  the  Claimant’s  low  back  and  referred \nthe Claimant for additional trigger point injections. \n \n3.  Claimant  reserves  the  right  to  supplement  and  amend  her \ncontentions after additional discover has been completed.” \n \n The respondents’ contentions are as follows: \n“Respondents  contend  that  the  Claimant  did  have  a  piriformis \ninjury that the Court of Appeals said was in the right buttocks but \nnot the low back. The Claimant apparently is now having problems \nin the low back. The Claimant testified at the previous hearing that \nher  low  back  was  not  injured  in  July  11,  2018.  The  Court  of \nappeals  found  the  Claimant  sustained  a  piriformis  injury  and  a \nclaim for the low back was not filed until the statute of limitations \nhad  run  on  this  case.  The  Claimant  is  also  contending  that  she  is \nentitled  to  temporary  total  disability  benefits.  The  Commission \nfound   that   the   Claimant   was   entitled   to   Temporary   Partial \nDisability   until   sometime   between   September   of   2018   and \nDecember  of  2018  when  she  began  a  new  position  with  the \nRespondents. The Claimant has not provided any off work slips. In \naddition,   she   voluntarily   quit   working   for   the   Respondent-\nemployer   and   went   to   work   for   another   facility.   Therefore, \nRespondents  are  unaware  of  any  missed  time.  Next,  the  Claimant \nwent   from   2019   to   2021   with   no   medical   treatment.   It   is \nRespondents position that the healing period has long since ended. \n \nClaimant has also requested permanent partial disability and wage \nloss.  Respondents  are  unaware  of  any  impairment  rating  being \nassigned for the piriformis syndrome.” \n \n\nMelius – G807060 \n \n-5- \nThe claimant in this matter is a 53-year-old female who at a hearing before the Workers \nCompensation   Commission   on   April   16,   2019,   brought   a   claim   for   benefits   before   an \nadministrative  law  judge  of  the  Workers  Compensation  Commission.  Following  were  the \nstipulations and issues under consideration: \nStipulations: \n1.  The Arkansas  Workers’  Compensation  Commission  has \njurisdiction of this claim. \n \n2.  The  employee/employer/carrier  relationship  existed  on \nJuly 11, 2018. \n \n3.  The  respondents  have  controverted  the  claim  in  its \nentirety. \n \n4.  The  compensation  rates  are  at  the  maximum  and  the \naverage weekly wage is $1,469.00. \n \nIssues: \n1.  Whether  claimant  suffered  a  compensable  injury  to  her \nbuttocks and thigh on July 11, 2018. \n \n2. Whether claimant is entitled to medical treatment. \n \n3.   Whether   claimant   is   entitled   to   temporary   partial \ndisability  benefits,  from  date  of  injury  to  date  yet  to  be \ndetermined. \n \n4. Attorney fees. \n \n On  June  25,  2019,  that  administrative  law  judge  issued  an  opinion  and  found  the \nfollowing Findings of Fact and Conclusions of Law: \n1.  The  claimant  has  failed  to  prove  by  a  preponderance  of \nthe  evidence  that  she  suffered  a  compensable  injury  to  her \nright buttock and thigh  on July 11, 2018. She has failed to \nprovide evidence in the form of objective medical findings \nto  support  her  contention  that  she  suffered  spasms  related \nto the July 11, 2018, incident and alleged injury. \n \n\nMelius – G807060 \n \n-6- \n2.   The   claimant   is   not   entitled   to   temporary   partial \ndisability or medical benefits. \n \n3. The claimant’s attorney is not entitled to an attorney fee \nbased on the above findings. \n \nThat  opinion  was  appealed  to  the  Full  Arkansas  Workers’  Compensation  Commission  and  on \nDecember  19,  2019,  that  opinion  was  affirmed  and  adopted  by  the  Full  Arkansas  Workers’ \nCompensation Commission.  \n The  Full  Commission’s opinion  was  appealed  to  the  Arkansas  Court  of  Appeals  who \nreversed and remanded the case back to the Full Arkansas Workers’ Compensation Commission \non February 10, 2021. Following is a portion of that decision: \n “Accordingly, we hold that a reasonable inference from the \nchronology  of  events  is  that  the  medications,  physical \ntherapy,   and  pain  management  were  prescribed  to  aid \nMelius  and  to  treat  her  injury,  and  there  was  no  evidence \nintroduced to the contrary.  Any other construction of these \nevents  does  not  withstand  scrutiny  or  pass  the  test  of \nreasonableness.  See   Jefferson,   361   Ark.   at   265,   206 \nS.W.3d  at  243.   Fair-minded  persons  with  the  same  facts \nbefore them could not have reached the conclusions that the \nCommission   did.  The   medical   evidence   presented   by \nMelius  did  contain  objective  medical  findings  in  the  form \nof   the   observations   of   the   doctors   as   to   the   noted \ntenderness,  the  prescribed  treatment  for  muscle  spasms  in \nthe   form   of   medication,   physical   therapy,   and   pain \nmanagement.  Other determinations regarding the \ncompensability  of  the  injury  were  not  addressed  upon  the \nfinding   that   Melius   did   not   present   objective   medical \nfindings.  Therefore, we reinstate Melius’s case and remand \nfor   further   determinations   of   whether   she   suffered   a \ncompensable  injury  to  her  buttock  and  thigh  on  July  11, \n2018,  whether  she  is  entitled  to  medical  treatment,  and \nwhether   she   is   entitled   to   temporary   partial-disability \nbenefits.” \n \n The Full  Commission  then  again  received  the  case  and  issued  an  opinion  on  September \n28,  2021,  in  which  it  remanded  the  case  back  to  the  administrative  law  judge  level.  The  initial \n\nMelius – G807060 \n \n-7- \nadministrative law judge who decided the case was no longer an employee of the  Commission, \nso  the  case  was  randomly  assigned  by  the  Clerk  of  the Commission  to  a  different  judge  in  the \nappropriate  district.  Following  is  a  portion  of  the  Full  Commission’s September  28,  2021, \nremand to the administrative law judge level: \n“Having found proof by a preponderance of the evidence of \na  compensable  injury  as  documented  by  the  Court  of \nAppeals,   the   Commission   remands   this   case   to   the \nadministrative law judge for other determinations regarding \nthe  compensability  for  the  injury  which  was  not  addressed \npreviously  by  the  administrative  law  judge.  Specifically, \nthe    administrative    law    judge    shall    make    further \ndeterminations of whether claimant suffered a compensable \ninjury  to  her  buttock  and  thigh  on  July  11,  2018,  and  to \nwhat  extent  claimant  is  entitled  to  medical  treatment  and \ntemporary partial disability benefits. Therefore, this case is \nremanded  to  the  administrative  law  judge  for  proceedings \nconsistent  with  this  order  and  the  mandate  from  the  Court \nof Appeals.” \n \n On June 15, 2022, a prehearing conference was conducted. At that time the parties agreed \nto resolve the issues of compensability and medical treatment to the date of the original April 16, \n2019,  hearing.  The  only  issues  that  remained  at  that  time  were  the  claimant’s  entitlement  to \ntemporary partial disability and whether the claimant’s attorney was entitled to an attorney’s fee \nfor  that  benefit.  The  hearing  was  conducted  by  this  administrative  law  judge  on  July  21,  2022, \nwith the following stipulations and issues: \nStipulations: \n1.   The   Arkansas   Workers'   Compensation   Commission   has \njurisdiction of this claim. \n \n2.  The  relationship  of  employee-employer-carrier  existed  between \nthe parties on July 11, 2018. \n \n3.  The  claimant  sustained  a  compensable  piriformis  injury  to  the \nbuttock and thigh on July 11, 2018. \n \n\nMelius – G807060 \n \n-8- \n4.  The  respondents  have  agreed  to  pay  for  all  medical  treatment \nfrom July 11, 2018, to  April 16, 2019, regarding  the compensable \npiriformis injury to the buttock and thigh. \n \n5. The compensation rates are the maximum. \n \nIssues: \n1.  Whether  Claimant  is  entitled  to  temporary  partial  disability \nbenefits. \n \n2. Whether Claimant’s attorney is entitled to an attorney’s fee. \n \nThe opinion in that matter was issued on October 18, 2022, which stated the following Findings \nof Fact & Conclusions of Law: \n1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing \nconference  conducted  on  June  15,  2022,  and  contained  in  a  Pre-\nhearing Order filed July 21, 2022, are hereby accepted as fact. \n \n2.   That   the   claimant  has   proven   by   a   preponderance   of   the \nevidence that she is entitled to temporary partial disability benefits \nfrom  July  12,  2018,  until  she  began  her  new  position  with  the \nrespondents  sometime  between  September  of  2018  and  December \nof 2018. \n \n3.   That   the   claimant  has   proven   by   a   preponderance   of   the \nevidence her attorney is entitled to attorney’s fee in this matter. \n \n The claimant has asked the Commission to determine whether she is entitled to additional \nmedical  treatment  for  her  compensable  piriformis  and  right  thigh  injuries  that  occurred  on  July \n11, 2018, or alternatively, whether the claimant sustained a compensable injury to her low back \non  or  about  July  11,  2018.  On  July  31,  2019,  the  claimant  was  seen  by  Dr.  Thomas  Cheyne  at \nMercy Clinic River Valley. Following is the body of his clinic note: \nMs. Melius returns for follow up of her chronic right hip pain. She \nhad  her  MRI  scan  of  her  hip  which  was  essentially  normal  other \nthan  an  incidental  finding  of  a  left  ovarian  cyst.  She  has  a  history \nof  ovarian  polycystic  disease  so  she  is  well aware  of  the  finding \nand is seeing her gynecologist in that regard. I continue to believe \nthat this is not a lower back issue. I also do not believe that this is a \n\nMelius – G807060 \n \n-9- \nright hip joint issue but more likely muscle or tendon injury. Other \nthan  physical  therapy  and  anti-inflammatories  which  have  so  far \nnot helped, I would recommend getting her in to see Dr. Jones just \nfor a second opinion evaluation and get his ideas about the possible \nsource  of  her  pain.  We  will  schedule  that  appointment  as  soon  as \ntime is available. \n \n On  August  21,  2019,  the  claimant  was  seen  by  Dr.  Greg  Jones  at  Mercy  Clinic  River \nValley. Following is the body of his clinic note: \nMs.  Melius  is  a  49-year-old  from  Alma  who  presents at  Dr. \nBishop’s  request  regarding  right  hip  pain  and  back  pain  that  has \nbeen  going  on  since  she  had  a  patient  lifting  incident  on  7/11/18. \nShe apparently has been denied as workman’s comp. She felt a pop \nand has had pain the posterior aspect of her hip, states that she has \nhad  a “knot.”  She  has  been  treated  with  physical  therapy  for \n“piriformis  syndrome.”  She  has  been  told  by  the  therapist  on \nmultiple  occasions  that  they  can  feel  the  lump.  Physical  therapy \nseems  to  have  helped  her  get  some  motion  back  and  she  is  not  as \ntight as she  was but she  comes in  for  complaints  of her continued \nhip pain. \n \nOn  exam,  she  has  mild  to  moderate  greater  trochanteric  bursitis. \nThe  radicular  pain  symptoms  are  down  the  right  leg  and  she  has \nmild straight leg raise. \n \nI  think  that  she  has  hurt  her  back.  This  isn’t  a  piriformis  lesion. \nCertainly that can contribute to sciatic inflammation, but I think we \nneed to find out at this point, a year after the index injury, if there \nis  something  more  serious  in  terms  of  her  back  that  could  be \naddressed.  She  was  at  Chapel  Ridge  Health  &  Rehab  when  this \noccurred. Dr. Bishop is her primary medical physician. They have \nan  MRI  of  the  hip  I  have  reviewed  it  carefully.  There  is  no \nevidence of tendon avulsion, femoral acetabular arthritis, avascular \nnecrosis, or other intrinsic femoral acetabular issues in terms of the \nsource of her present discomfort. On  external rotation, the hip did \nnot reproduce her pain and while palpably she is tender posteriorly \nalong  the  tract  of  the  sciatic  nerve,  I  do  not  feel  an  actual  muscle \navulsion where the “lump” that the therapist has been so prominent \nabout. \n \nWe  will  see  her  back  when  the  lumbar  MRI  is  completed  and \nproceed  with  conservative  care  further.  Previous  lumbar  spine  x-\nrays  from  July  18\nth\n  were  reviewed.  These  are  from  2019.  She  has \n\nMelius – G807060 \n \n-10- \nstraightening  and  loss  of  the  lumbar  lordosis.  There  is  no  obvious \nlisthesis or scoliotic pattern. There is spur-type lipping anteriorly at \n4-5 and at T11-T12. Disc space heights are fairly well maintained \nbut subchondral endplate sclerosis is noted. On the foraminal outlet \nview there  appears to be facet arthropathy, interference at 4-5 and \nat  5-1.  No  fractures  and  no  destructive  lesion  evident.  No  new  x-\nrays  are  made  on  today’s  spine  films.  We  will  see  her  when  the \nMRI  is  completed.  No  additional  x-rays  need  to  be  made  at  that \ntime.  Previous  hip  x-rays  were  reviewed  and  although  she  has \nsome  calcific  density  at  the  abductor  insertion  on  the  right  hip, \nprominent greater trochanter changes, these are not consistent with \nfemoral  acetabular  arthritis.  No  leg  length  inequality  and  these \nagain are hip x-rays made in July and no new files are made. \n \n On August 28, 2019, the claimant underwent an MRI of the lumbar spine. Following is a \nportion of that diagnostic report signed by Dr. Adam Gold: \nIMPRESSION: \n1.  Central/left  paracentral  disc  protrusion  L4-5  level,  along  with \nhypertrophy  the  facets  and  ligamentum  flavum  causing  at  least \nmoderate  central  stenosis  with  probable  mass  effect  left  L5  nerve \nroot lateral recess. \n \n2.   Broad-based   central   protrusion   L5-S1   level   mild   central \nstenosis.  There  may  be  some  mild  mass  effect  left  S1  nerve  root \nlateral recess. \n \n On September 4, 2019, the claimant was again seen by Dr. Jones. Following is the body \nof that clinic note: \nMs. Melius is a  nurse at local Chapel Ridge Health & Rehab. She \nhas been on limited duty pushing a cart. She has not been engaged \nin lifting activities. She comes back for followup of her MRI. She \nhas   lumbar   stenosis,   facet   hypertrophy   and   degenerative   disc \nchanges  at  L4-5  and  L5-S1  with  disc  protrusion.  Her  symptoms \nhave improved considerably with the physiotherapy. I do not think \nshe  has  a  herniated  disc  that  requires  surgery.  We  have  talked \nabout  the  implications  of  this  level  of  back  trouble.  At  age  49  in \nterms of her body habitus, her lifting, etc., I recommended that she \nnot be lifting patients. Physical therapy will be changed to include \nspinal   flexibility   and   strengthening.   I   think   the   piriformis \nsyndrome  is  not  the  answer  but  rather  the  stenotic  phenomenon, \n\nMelius – G807060 \n \n-11- \nand given that she is this much better with therapy, surgery is a last \nresort. Lumbar epidural steroids may be of benefit. \n \nShe  has  asked  that  I  opine  as  to  its  onset.  Certainly,  the  story  she \nprovided   historically   that   she   felt   a   pop,   had   swelling   and \npresented   immediately,   this   represents   an   exacerbation   of   an \nunderlying  degenerative  disc  phenomenon  and  at  least  by  the \nhistorical  information  stated,  she  is  thankfully  better  and  I  do  not \nthink  will  require  any  surgical  intervention at  this  juncture,  but  it \nhas  lifelong  implications  which  we  have  discussed  at  length.  We \nwill  change  physical  therapy.  I  asked  her  to  do  that  twice  daily. \nHer  injury  was  in  July  2018  so  she  is  making  it  pretty  decent.  I \nthink  she  should  remain  with  a  limited  duty  status  in  terms  of \navoidance  of  patient  lifting  and  we  will  leave  her  followup  here \nopen ended. \n \n On November 23, 2021, the claimant again saw Dr. Cheyne. Following is the body of his \nclinic note: \nMs.  Melius  is  seen  back  for  the  first  time  since  I  last  saw  her  in \nJuly  2019  with  right  buttock  pain.  She  eventually  saw  Dr.  Jones \nwho  thought  that  this  was  likely  related  to  her  back.  She  had  an \nMRI  scan  done  and  had  a  left  paracentral  disk  protrusion  at  L4-5 \nand  a  central  disk  protrusion  at  L5-S1.  She  got  better  to  a  point \nwith physical therapy and anti-inflammatory medications. She also \ngot  some  relief  from  a  gluteal  injection  which  was  done  by  Dr. \nGoodman;  however,  she  has  persistent  pain.  I  have  looked  at  her \nMRI  scan  and  still  believe  that  this  is  likely  related  to  her  back, \nalthough  it  is  certainly  possible  since  she  got  relief  from  the \ninjection by  Dr. Goodman. We will get her back in to see him for \nanother  injection  or  2.  If  gluteal  injections  do  not  work,  then  we \nwill consider LESIs. \n \n The  claimant’s  request  for  additional  medical  treatment  for  her  compensable  piriformis \nand right thigh injuries is denied as no doctor has recommended any treatment for her piriformis \nand/or  right  thigh  since  July  31,  2019,  when  Dr.  Cheyne  requested  a  second  opinion  from  Dr. \nJones.  In Dr. Jones’ August 21, 2019, clinic note  he states, “I think she has hurt her back.  This \nisn’t  a  piriformis  lesion.”  The  medical  records  in  evidence  show  no  indication  of  any  medical \n\nMelius – G807060 \n \n-12- \ntreatment for the claimant’s piriformis and/or right thigh. Medical records do, however, indicate \ntreatment for the claimant’s lower back.  \n The claimant has alternatively asked the Commission to determine whether she sustained \na compensable injury to her low back on or about July 11, 2018. The claimant filed an AR-C in \nthis matter on October 16, 2018, which is found at Respondents’ Exhibit 3. The AR-C provides a \nspace  to “Briefly  describe  the  cause  of  the  injury  and  the  part  of  the  body  injured.”  The \nclaimant’s AR-C states, “Was helping lift a patient to move to another facility when felt twinge \nin buttocks. Buttocks and thigh.” \n There is no indication in the October 16, 2018, AR-C of a low back injury that she now \nclaims.  \n On  cross  examination  the  claimant  was  asked  about  her  October  16,  2018,  AR-C  and \nabout her testimony from the original April 16, 2019, hearing in this matter as follows: \nQ Ms.  Melius,  I  am  going  to  hand  you  this.  This  was  filled \nout on October 16, 2018. It is Respondents’ Exhibit No. 3 and it is \nsigned by you; is that correct? \n \nA Yes. \n \nQ And  this  would  have  been  done  after  the  date  of  injury;  is \nthat correct? \n \nA Yes. \n \nQ Okay.  Would  you  tell  me  what  body  parts  you  listed  as \nyour injury? \n \nA By buttocks and thigh. \n \nQ Okay. And you are an RN; is that correct? \n \nA No, sir. \n \nQ You are an LPN? \n\nMelius – G807060 \n \n-13- \n \nA Yes, sir. \n \nQ So  you  know  the  difference  between  low  back  and  the \nbuttocks and the thigh area. Is that a fair statement? \n \nA Yes, sir. \n \nQ Okay. As a matter of fact, at your hearing, the first hearing, \nI asked you on Page 23, “Are you claiming today that you suffered \na back injury?” Do you remember your answer? \n \nA And which date was that, sir? \n \nQ This was the first hearing. \n \nA Yes, sir. I said, “No, sir.” \n \nQ Okay. And this would have been months after the injury; is \nthat correct? \n \nA Yes, sir. \n \n The  claimant,  neither  through  the  original  hearing  in  2019  or  at  any  other  point  in \ntestimony, describes any type of injury to her lower back, only to her piriformis and right thigh; \nthe  buttock  area.  Dr.  Jones  ordered  an  MRI  that  was  performed  on  August  28,  2019,  regarding \nthe  claimant’s  low  back.  That  MRI  does  show  objective  medical  findings  of  low  back \nderangement at both the  L4-5 and L5-S1 levels.  However, the  claimant  must be able to show  a \ncausal  connection  between  those  objective  medical  findings  of  low  back  derangement  and  the \nJuly 11, 2018, incident that she alleges to have caused them.  \n Dr.  Jones  clearly  believes  the  claimant’s  difficulties  are  not  from  her  compensable \npiriformis and right thigh injury, but instead from her low back. In his September 4, 2019, clinic \nnote  he  states, “I  think  the  piriformis  syndrome  is  not  the  answer,  but  rather  the  stenotic \nphenomenon,  and  given  that  she  is  this  much  better  with  therapy,  surgery  is  a  last  resort.” \n\nMelius – G807060 \n \n-14- \nHowever,  the  claimant’s  difficulties  have  always  been  on  her  right  side.  The  MRI  of  the \nclaimant’s lumbar spine does not show any right sided stenosis. The Impressions  section states, \n“moderate central stenosis with probable mass effect left L5 nerve root lateral recess” and “mild \ncentral  stenosis.  There  may  be  some mild  mass  effect  left  S1  nerve  root  lateral  recess.”  The \nclaimant’s  low  back  issues  are  left  sided,  not  right  sided,  where  her  symptoms  have  always \nexisted.  \n Dr.  Jones’  clinic  note  of  September  4,  2019,  also  states, “Certainly,  the  story  she \nprovided historically that she felt a pop, had swelling and presented immediately, this represents \nan  exacerbation  of  an  underlying  degenerative  disc  phenomenon  and  at  least  by  the  historical \ninformation  stated,  she  is  thankfully  better  and  I  do  not  think  will  require  any  surgical \nintervention at this juncture, but it has lifelong implications which we have discussed at length.” \n The claimant’s original hearing testimony about her July 11, 2018, incident was in part as \nfollows: \nSo  I  lowered  the  bed  down  and  I  just  pushed  it  with  my \nhand  and  when  I  went  to  step,  it  was –  it’s  like  you  could  almost \nhear it, but feel it at the  same time, a popping in  my buttocks and \nmy  right  side.  And  when  I  went  to  step,  my  calf  drew  up  and  the \npain shot down my buttocks to behind my knee. \n \nSo  I  stood  there  for  a  second  and  I  rubbed  my  bottom  and \nthen  I reached down and felt my calf  which was  rock hard. And  I \nwas  rubbing  it  and  I  was  rubbing  my  bottom  and  I  thought  my \nGod.  So  then  I  tried  to  step  forward  again  and  my  leg  made  full \ncontact  and  then  it  drew  right  back  up.  So  I  stood  there  a  minute \nand kept rubbing it. Then I – \n \nQ When you say it, are you referring to – \n \nA My buttocks. \n \nQ Your buttocks. \n \n\nMelius – G807060 \n \n-15- \nA Yes. \n \nQ Was your calf muscle still – \n \nA It was drawn up. \n \nQ Spasming? Okay. \n \nA I don’t know if you would call that my calf was spasming, \nbut  it  was  just  rock  hard  from  being  drawn  up,  almost  like  a  leg \ncramp. \n \nQ When   you   mentioned   what   you   described   as   a   pop \nsensation and sound, where exactly was that? \n \nA In my right glute. \n \nAny  pop  or  swelling  heard  or  felt  by  the  claimant  was  only  in  her  piriformis  and  right  thigh  or \nbuttock  area,  certainly  not  in  her  left  lower  extremity  or  lower  back.  I  am  unaware  of  any \ntestimony  or  evidence  that  contradicts  the  claimant’s  original  testimony  about  what  occurred  at \nthe time of the injury. The claimant is unable to prove a causal connection between her July 11, \n2018, incident and the objective medical findings of low back derangement in evidence. As such, \nthe  claimant  has  failed  to  prove  she  sustained  a  compensable  low  back  injury  on  or  about  July \n11, 2018.  \nThe claimant is unable to prove that she is entitled to medical treatment for her low back \nas she is unable to prove a compensable low back injury on July 11, 2018. \n The  claimant  has  asked  the  Commission  to  determine  if  she  is  entitled  to  temporary \npartial disability benefits from September 19, 2019, to a date yet to be determined. The claimant \nis unable to prove her entitlement to temporary partial disability benefits regarding her low back \nas  she  is  unable  to  prove  her  alleged  low  back  injury  compensable.  As  previously  stated, a \nhearing was conducted in this matter on July 21, 2022, with two issues: “1. Whether the claimant \n\nMelius – G807060 \n \n-16- \nis  entitled  to  temporary  partial  disability  benefits;”  and “2.  Whether  the  claimant’s  attorney  is \nentitled to an attorney’s fee” regarding the claimant’s piriformis injury to the thigh and buttock. \nThe  opinion  filed  from  that  hearing  was  filed  on  October  18,  2022,  which  found: “2.  The \nclaimant  has  proven  by  preponderance  of  the  evidence  that  she  is  entitled  to  temporary  partial \ndisability  benefits  from  July  12,  2018,  until  she  began  her  new  position  with  the  respondents \nsometime  between  September  of  2018  and  December  of  2018;”  and “3.  That  the  claimant  has \nproven by a preponderance of the evidence that her attorney is entitled to an attorney’s fee in this \nmatter.”  The  decision  finding  temporary  partial  disability  benefits  regarding  the  claimant’s \npiriformis injury to the thigh or buttocks was not  appealed and has become res judicata and the \nlaw  of  this  case.  There  is  no  indication  in  the  medical  records  placed  into  evidence,  the  most \nrecent  of  which  is  dated  November  23,  2021,  that  the  claimant  remains  in  or  has  reentered  her \nhealing  period  at  any  time  after  July  21,  2022.  In  order  to  receive  partial  disability  benefits  the \nclaimant  must  be  able  to  prove  she  is  in  a  healing  period.  She  cannot  do  so  and,  as  such,  she \ncannot prove entitlement to temporary disability benefits. \n The  respondent  has  raised  the  statute  of  limitation  defense  in  this  matter.  Even  if  the \nclaimant  was  able  to  prove  a  compensable  injury  to  her  low  back  on  July  11,  2018,  the \nclaimant’s claim would be barred by the statute of limitations. The claimant alleges an injury on \nJuly 11, 2018, to her low back. An AR-C was filed regarding her thigh and buttocks on October \n16,  2018,  but  does  not  indicate  any  low  back  injury.  While  medical  records  in  evidence  do \ndiscuss a low back injury in August and September of 2019, the first claim made of a low back \ninjury  by  the  claimant  is  on  June  13,  2022,  when  the  claimant  filed  a  prehearing  questionnaire \nwith the Commission listing compensability of a low back injury on July 11, 2018, as an issue. \nThe statute of limitations would have barred the claimant from bringing such a claim on July 12, \n\nMelius – G807060 \n \n-17- \n2020.  The  claim  was  not  made  until  nearly  two  years  later in  the  June  13,  2022,  filing  of  the \nclaimant’s prehearing questionnaire with the Commission. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nSeptember  25,  2023,  and  contained  in  a  Pre-hearing  Order  filed  October  31,  2023,  are  hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto  additional  medical  treatment  for  her  compensable  piriformis  and  right  thigh  injuries  that \noccurred on July 11, 2018. \n 3. The claimant has failed to prove by a preponderance of the evidence that she sustained \na compensable injury to her low back on or about July 11, 2018.  \n 4. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment for her alleged compensable low back injury. \n 5. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary partial disability benefits from September 19, 2019, to a date yet to be determined. \n 6. The respondents’ defense of the statute of limitations is moot in that the claimant has \nfailed to prove her low back injury compensable. \n 7. The claimant has failed to prove her attorney’s entitlement to an attorney’s fee in this \nmatter. \n\nMelius – G807060 \n \n-18- \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":35629,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G807060 TINA MELIUS, Employee CLAIMANT CHAPEL RIDGE NURSING CTR., Employer RESPONDENT AMTRUST NORTH AMERICA, Carrier RESPONDENT OPINION FILED FEBRUARY 27, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. ...","outcome":"denied","outcomeKeywords":["denied:6"],"injuryKeywords":["back","strain","hip","lumbar","herniated","knee"],"fetchedAt":"2026-05-19T22:57:49.971Z"},{"id":"full_commission-H302270-2024-02-26","awccNumber":"H302270","decisionDate":"2024-02-26","decisionYear":2024,"opinionType":"full_commission","claimantName":"Maritza- Sandoval","employerName":"Tyson Poultry Inc","title":"SANDOVAL VS. TYSON POULTRY INC. AWCC# H302270 FEBRUARY 26, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Sandoval_Maritza-_H302270_20240226.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Sandoval_Maritza-_H302270_20240226.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n CLAIM NO. H302270 \n \nMARITZA SANDOVAL, EMPLOYEE                                CLAIMANT \n \nTYSON POULTRY INC., SELF-INSURED \nEMPLOYER                                   RESPONDENT \n \nTYNET, TPA                                        RESPONDENT \n \n \nORDER FILED FEBRUARY 26, 2024 \n \nBefore the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. \n \nClaimant represented by the HONORABLE EVELYN BROOKS, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JEREMY SWEARINGEN, \nAttorney at Law, Little Rock, Arkansas. \n \nORDER \n \n  Presently before the Full Commission is Respondents’ Motion \nto Stay Appeal and Remand for Consideration of Joint Petition for Final \nSettlement.   \n  Respondents and claimant have reached a proposed \nsettlement agreement of the instant claim and of a companion claim \ninvolving the same claimant, and parties intend to submit a Joint Petition for \nfinal Settlement of both claims to an Administrative Law Judge for \nconsideration. Accordingly, the respondents, without objection from \nclaimant, request that its pending appeal to the full commission in this claim \nbe stayed.   \n\nSandoval-H302270               2 \n \n  Respondents further request, without objection from Claimant, \nthat the instant appeal of this claim would resume should the Joint Petition \nnot be approved, giving parties sufficient time to resume the briefing \nschedule from that point. \n  After consideration of respondents’ motion with no objections \nby the claimant and all other matters properly before the Commission, we \nfind that the respondents’ motion should be granted. Therefore, the appeal \nof the Administrative Law Judge’s Opinion filed January 3, 2024, is stayed \npending approval of a joint petition to be presented to an Administrative \nLaw Judge for approval. Should the joint petition not be granted, the appeal \nof this claim shall resume, and a new briefing schedule be issued.   \n  IT IS SO ORDERED. \n \n    ____________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n    ____________________________________          \n    M. SCOTT WILLHITE, Commissioner \n \n \n    _____________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2270,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302270 MARITZA SANDOVAL, EMPLOYEE CLAIMANT TYSON POULTRY INC., SELF-INSURED EMPLOYER RESPONDENT TYNET, TPA RESPONDENT ORDER FILED FEBRUARY 26, 2024 Before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE E...","outcome":"granted","outcomeKeywords":["remanded:1","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:45.978Z"},{"id":"alj-H109030-2024-02-23","awccNumber":"H109030","decisionDate":"2024-02-23","decisionYear":2024,"opinionType":"alj","claimantName":"Richard Carpenter","employerName":"Nibco, Inc","title":"CARPENTER VS. NIBCO, INC. AWCC# H109030 FEBRUARY 23, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Carpenter_Richard_H109030_20240223.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Carpenter_Richard_H109030_20240223.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109030 \n \n \nRICHARD CARPENTER, EMPLOYEE CLAIMANT \n \nNIBCO, INC., \nEMPLOYER RESPONDENT \n \nLIBERTY INS. CORP., \nCARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 23, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 16, 2024, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Michael  C.  Stiles,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on  February 16, 2024, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was  Respondents’  Exhibit  1,  pleadings,  correspondence \nand forms related to this claim, consisting of 39 numbered pages.  Also, in order \nto  address  adequately  this  matter  under  Ark.  Code  Ann.  § 11-9-705(a)(1)  (Repl. \n2012)(Commission  must “conduct  the  hearing    .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe  record  documents from  the  Commission’s  file  on the  claim,  consisting  of  two \n\nCARPENTER – H109030 \n \n2 \n \npages.   In accordance  with Sapp  v.  Tyson  Foods,  Inc.,  2010  Ark. App.  517, ___ \nS.W.3d  ___,  these  documents  have  been  served  on  the  parties  in  conjunction \nwith this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  November  12,  2021, \nClaimant purportedly suffered an injury to his upper extremity, clavicle, or scapula \nat work on April 29, 2021, when he was pushing a heavy pallet with a co-worker.  \nAccording to the Form AR-2 that was  filed on  November 16, 2021,  Respondents \naccepted the claim and paid medical and indemnity benefits pursuant thereto. \n On April 2, 2023, through then-counsel Daniel Wren, Claimant filed a Form \nAR-C.    Therein, he alleged  that  he  was  entitled  to  the  full  range  of  initial  and \nadditional  benefits  as  a  result  of a  compensable  injury  that  he  sustained  to  his \nshoulder.  No hearing request accompanied this filing.  Respondents propounded \ndiscovery   to   Claimant   on   April   21,   2023.      But   responses   thereto   remain \noutstanding. \n On August 25, 2023, Wren moved to withdraw from the case.  In an Order \nentered  on  September  6,  2023,  the  Full  Commission  granted  the  motion  under \nAWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nDecember 12, 2023.   On  that date,  Respondents  filed the  instant motion, asking \nfor dismissal of the claim under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 \n\nCARPENTER – H109030 \n \n3 \n \n(Repl.  2012).    My  office  wrote  Claimant  on  December 13,  2023,  asking  for  a \nresponse  to  the  motion  within  20  days.    The  letter  was  sent  by  first  class and \ncertified mail to the Blytheville address of Claimant listed in the file and his Form \nAR-C.  While  the  United  States  Postal  Service  was  unable  to  verify  whether \nClaimant  claimed  the  certified  letter,  the  first-class  letter  was  not  returned.  \nRegardless,  no  response  from  Claimant  to  the  motion  was  forthcoming.    On \nJanuary 10, 2024, a hearing on the Motion to Dismiss was scheduled fo r February \n16,  2023,  at  1:30  p.m.  at  the  Craighead  County  Courthouse  in  Jonesboro.  The \nnotice was sent to Claimant via first-class and certified mail to the same address \nas  before.  Once  again,  it  could  not  be  verified  whether  Claimant  signed  for  the \ncertified letter; but the first-class letter was not returned to the Commission. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary 16,  2024.  Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  the \naforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nCARPENTER – H109030 \n \n4 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial \nbenefits is  hereby  dismissed  without  prejudice  under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \n\nCARPENTER – H109030 \n \n5 \n \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it  (including  appearing  at  the  February 16,  2024,  hearing  to  argue \nagainst its dismissal) since the filing of his Form AR-C on April 2, 2023.  Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the application of § 11-9-702. \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Pr  ofessional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nCARPENTER – H109030 \n \n6 \n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7689,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H109030 RICHARD CARPENTER, EMPLOYEE CLAIMANT NIBCO, INC., EMPLOYER RESPONDENT LIBERTY INS. CORP., CARRIER RESPONDENT OPINION FILED FEBRUARY 23, 2024 Hearing before Administrative Law Judge O. Milton Fine II on February 16, 2024, in Jonesboro, Craighead County...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:57:39.387Z"},{"id":"alj-H302266-2024-02-23","awccNumber":"H302266","decisionDate":"2024-02-23","decisionYear":2024,"opinionType":"alj","claimantName":"Jeffrey Elliott","employerName":"Rogers Lumber Company, Inc","title":"ELLIOTT VS. ROGERS LUMBER COMPANY, INC. AWCC# H302266 FEBRUARY 23, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/ELLIOTT_JEFFREY_H302266_20240223.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ELLIOTT_JEFFREY_H302266_20240223.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:57:41.566Z"},{"id":"alj-H303440-2024-02-23","awccNumber":"H303440","decisionDate":"2024-02-23","decisionYear":2024,"opinionType":"alj","claimantName":"Gregory Harris","employerName":"City Of Dermott","title":"HARRIS VS. CITY OF DERMOTT AWCC# H303440 FEBRUARY 23, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HARRIS_GREGORY_H303440_20240223.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRIS_GREGORY_H303440_20240223.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H303440 \n \nGREGORY L. HARRIS, EMPLOYEE       CLAIMANT \n \nCITY OF DERMOTT, EMPLOYER                     RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, CARRIER/TPA                RESPONDENT  \n \n \nOPINION FILED 23 FEBRUARY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe, 22 February 2024, in McGehee, Desha County, Arkansas. \n \nThe pro se claimant did not appear. \n \nMs. Melissa Wood, Attorney-at-Law, Worley, Wood & Parrish, PA, of Little Rock, Arkansas, \nappeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in McGehee, \nArkansas, on 22 February 2024.  This case relates to an alleged workplace injury by way of \na gunshot sustained on or about 8 May 2023, with a Form AR-C eventually filed on the \nclaimant’s behalf by counsel on 26 May 2023.  A Form AR-2 was filed on 7 June 2023 denying \nthe claim as “personal in nature.”  A First Report of Injury form was filed the following day \nnoting “altercation with a non-employee and he got shot.” \n Claimant’s attorney, Mark Peoples, filed with the Commission a Motion to Withdraw \non 9 August 2023, citing “differences of opinion regarding prosecution of the claim,” and the \nFull Commission granted that Motion on 25 August 2023. \n The respondents filed the immediate Motion to Dismiss for Failure to Prosecute on 5 \nDecember 2023, stating that the claimant had not sought a bona fide hearing on any matter \nat controversy in the six (6) months preceding that filing. \n\nG. HARRIS- H303440 \n2 \n \n A hearing was set on the Motion, and the claimant  did  not  file  an  objection  to  the \ndismissal  or  appear  at  the  hearing  to  argue  against  the  respondents’ Motion.  The \nrespondents  appeared,  presented  their Motion,  and  offered  supporting  evidence  into  the \nrecord. As argued by the respondents at the hearing, the file reflects no request for a hearing \non the claim in the relevant time preceding the filing of their Motion.  \n Arkansas Code  Annotated §  11-9-702(a)(4)  states  that  a  matter  may  be  dismissed \nwithout prejudice after six (6) months without a bona fide request for a hearing.  Commission \nRule 099.13 provides for  a  dismissal  for  failure  to prosecute  an  action upon  application  by \neither  party. Based  on  the  record, the available  evidence, and the  arguments  of  the \nrespondents’ counsel, I find that the respondents’ Motion to Dismiss should be granted and \nthat the matter should be dismissed without prejudice. \nVI.  ORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2824,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H303440 GREGORY L. HARRIS, EMPLOYEE CLAIMANT CITY OF DERMOTT, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, CARRIER/TPA RESPONDENT OPINION FILED 23 FEBRUARY 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge JayO...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:57:43.673Z"},{"id":"full_commission-H005060-2024-02-22","awccNumber":"H005060","decisionDate":"2024-02-22","decisionYear":2024,"opinionType":"full_commission","claimantName":"Stanley Cheathem","employerName":"Husqvarna Outdoor Products, Inc","title":"CHEATHEM VS. HUSQVARNA OUTDOOR PRODUCTS, INC. AWCC# H005060 FEBRUARY 22, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Cheathem_Stanley_H005060_20240222.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Cheathem_Stanley_H005060_20240222.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H005060  \n \nSTANLEY R. CHEATHEM, \nEMPLOYEE \n \nCLAIMANT \nHUSQVARNA OUTDOOR PRODUCTS, INC.,  \nEMPLOYER \n \nRESPONDENT \nSAFETY NATIONAL CASUALTY CORP./ \nCORVEL ENTERPRISE COMP., INC., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED FEBRUARY 22, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MALCOLM A. SIMMONS, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE EDWARD W. McCORKLE, \nAttorney at Law, Arkadelphia, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nJuly 12, 2023.  The administrative law judge found, among other things, that \nthe claimant proved he sustained a compensable right wrist injury.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant proved he sustained a compensable injury.     \nI.  HISTORY \n The record indicates that Stanley Cheathem, now age 53, became \nemployed with the respondents, Husqvarna Outdoor Products, Inc, in \nOctober 2016.  The claimant testified on direct examination: \n\nCHEATHEM - H005060      2\n  \n \n \n  Q.  How long did you work for Husqvarna? \nA.  I started my work with them October 17, 2016.  I came in \nand I was assigned to Line 5 under supervisor Parnell Pope \non the carousel in the assembly department.... \nQ.  Tell the Court about your injury. \nA.  Well, eventually – like I said, I started on Line 5.  We \neventually moved to another line, Line 3, and when I got to \nthat line – I believe it was at the end of 2017, around the \nbeginning of 2018.  On that line some of the jobs that I was \ndoing was a lot more strenuous than what I was used to, and \na description of them would be – the first job would have been \nsecond torque, fishing module cables around the side of a \nunit.  My second job was torquing flywheels and placing \nmodules on the unit.  Third job was torquing two screws in a \nmodule and routing a sparkplug wire around the unit and \nputting it on the sparkplug.   \nQ.  What was your daily schedule? \nA.  I came in on that line, on Line 3 specifically is where the \ninjury started, from – we started I believe at 5:30 a.m. and first \nbreak would have been at 9 o’clock.... \nQ.  What were you doing say from 5:30 a.m. until 9:00 a.m.?  \nCan you explain that to the Court what you were doing at that \ntime and your best guess or estimate for the time it took you \nto perform your job and how long you were doing that during \nthat period? \nA.  Yes.  Most of the time we ran units 12 to 15 seconds, you \nknow, per unit and taking the high end, just saying maybe 15 \nseconds, there was going to be about 200 units an hour or \n240 units an hour maybe, and that’s about 2,000 I think a day.  \nIt’s a lot of screwing, using air guns to torque down screws.  \nYou are pulling wires around, twisting – it’s a lot of twisting, a \nlot of rotating, a lot of pushing, fast paced, flipping units, and \nthat particular job was one that had caused a previous injury \nwith the constant torquing, flipping and fishing them wires \naround, trying to push them through a hole and then pulling it \nout.  It’s a lot of wear and tear on you and it’s very fast paced.  \nI’m saying the high end is 15 seconds that you got to do all of \nthis and then the next unit, and this is repetitive, over and over \nand over and over.   \n \n Dr. Brian Norton provided an Initial Evaluation on July 20, 2018: \n\nCHEATHEM - H005060      3\n  \n \n \nThis is a 47 year old right hand dominant male that comes in \ncomplaining of left thumb locking and pain.  He has had the \npain and locking since March 2018.  The patient relates the \nsymptoms to repetitive gripping and pinching activities while at \nwork.  He has received one steroid injection which actually \nmade his symptoms worse.  He describes the pain as a \nthrobbing type pain....Heat and rest improves his symptoms.  \nSymptoms are worse with pinching and gripping type \nactivities.... \nThe patient’s clinical history and physical examination are \nconsistent with stenosing tenosynovitis of the left thumb....I \nrecommend he proceed with a left thumb A1 pulley release.... \n \n The claimant testified that he underwent the left thumb A1 pulley \nrelease recommended by Dr. Norton.   \nThe parties stipulated that the employment relationship existed at all \npertinent times, including December 19, 2019.  The claimant testified with \nregard to his right wrist: \nA.  It was tolerable until December of 2019.  Our line didn’t \nwork – wasn’t scheduled to work so I needed my hours so I \nvolunteered to come in and work wherever.  I was put on lines \n7 and 8, and that particular job that I was doing really had me \n– I’m using my left hand but it was my right, had me bending \nthe wrist a lot and using a stapler and it started hurting worse \nthat it had ever hurt, to the point that it was unbearable.  So I \nasked the supervisor, Yvonne Moreland, if she would take me \nto the nurse’s station to get some rub on it and get it wrapped \nbecause I had never had it hurt quite that bad before.  She \ntook me and I came back to the line and I just noticed that it \nwas just progressively getting more and more intense and I \nwas like what’s going on here....So after that we went on \nabout a three week break for the holidays and we didn’t come \nback.... \nQ.  When did you return to work? \nA.  January – I want to say I actually returned and worked \nJanuary 8\nth\n, came back maybe a few days before then.  Line \n3, which was my line, wasn’t working or didn’t have parts so \n\nCHEATHEM - H005060      4\n  \n \n \nwe went home and when we eventually came back to work \nthey shut that line down and reassigned us and I went to line \n4....Once I started on line 4 is when I really noticed it.  I was \nlike, wow, you know, the way my wrist was hurting before I \nleft, within an hour’s time it was inflamed again and I didn’t \nquite understand why the pain was so intense and why even \nafter being off three weeks, why is my wrist still hurting me like \nthis you know.  And so I think I had went and had it wrapped \nbefore I started work because I was still bothered by it, just \nover the break, but from that point on just throughout the day \nit was just getting bad and I was having to go back to the \nnurse and try to get some wrap on it, some rub on it and have \nit wrapped, and just from that point on it just progressively got \nto the point that any rotating, pinching, pushing and pulling, \nthe pain was far more intense that it had been previously.  So \nwhatever had happened 12/12 really set it off, and from that \npoint on it just progressively got worse to the point where \ngripping became a serious problem.... \n \n A FIRST AID VISIT REPORT dated January 8, 2020 indicated, “Pain \nin right hand and wrist.  Started working on line 4 carousel today.  Waited \nuntil after clocking out to come to first aid.”  The BREIF (sic) DESCRIPTION \nOF EVENT was “lifting.”   \nA FIRST AID VISIT REPORT dated January 23, 2020 indicated, \n“Stated pain started on line 3 when he was using a gun on every job.  Then \nhe was moved to Yinas line doing boxes and this is when it flared up.  On \n1/8/2020.”   \nAccording to the record, a Nurse Note was entered on January 23, \n2020: \nStanley Cheathem presented to first aid with request to wrap \nhis right wrist.  There is no swelling redness lumps bumps or \nbruises.  Stanley [stated] that he has come in first aid a few \n\nCHEATHEM - H005060      5\n  \n \n \ntimes with this pain and he was given a wrap and he returned \nto work.  I saw him on 1/8/2020 as he was going home and \ntreated him he was to return to first aid and placed on the first \naid list and did not return to first aid for at least three days.  \nROM wnl there is no grinding locking or clicking.  He holds his \nwrist tight making movement hard and states that he is having \npain when I did the ROM with his right wrist.  Stanley freely \nmoves the right wrist himself.  Incident form and form N \ncompleted.  Copy form N given to employee.  Hot wax \ntreatment done to right wrist and hand.  Otc menthol pain \npatch applied to the outer right wrist.  He shows me his pain is \nabove the second third and fourth digits of the right wrist.  \n[Restrictions] no use of the right hand or wrist.  May use the \nfinger tips but no weight over one pound with the right hand.  \nRecheck 0530 in AM and as needed today.  Supervisor \ninstructed that safety investigation is required.   \n \n The claimant followed up with the Nurse on January 27, 2020, \nFebruary 3, 2020, and February 6, 2020.  FIRST AID NOTES FOR \nSUPERVISOR on February 6, 2020 indicated, “Return to work with out \nrestriction.”   \n A FIRST AID VISIT REPORT was prepared on July 1, 2020:  “Pain \nin right wrist, increases with certain movement.  He stated repetative (sic) \nmotion....C/O pain in right wrist stated it is the same pain he had in \nDecember and January and he has been hurting ever since.  No swelling or \nredness.  OTC menthol patch applied to the thumb side of the right wrist \nand light wrap of coflex to keep it in place.  Did not return to first aid during \nthe rest of his shift as instructed.” \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on July 3, 2020.  The ACCIDENT INFORMATION section of the \n\nCHEATHEM - H005060      6\n  \n \n \nForm AR-N indicated that the Date of Accident was December 12, 2019, \nand that the employer was notified of same on December 12, 2019.  The \nclaimant appeared to write that the cause of injury was “Repetative (sic) use \nof my right wrist.  Same combinations of twisting & pinching or pushing \ncauses more immediate and severe pain.  It hurts pretty much all of the \ntime and can’t be [unintelligible].”   \n FIRST AID NOTES on July 14, 2020 indicated, “Due to safety \ninvestigation ruling of NWR issue and this being the first time Sandra \nMcWha, from safety department could talk with Stanley, he has missed \nseveral days recently.  Stanley was sent out for a full release from his PCP \nfor his right wrist today.  Stanley did not come to first aid on 7/7/20, 7/8/20, \n7/9/20, 7/10/20 called in 7/11/20 and 7/13/20.  Must bring MD release to \nreturn to work.” \n The claimant testified that he did not work for the respondents after \nJuly 14, 2020.     \n A Human Resources Representative for Husqvarna Group wrote the \nfollowing on July 15, 2020: \n  Dear Medical Provider: \nHusqvarna Group is concerned for the safety and health of all \nemployees.  As such, please note that Stanley Cheathem has \nmade us aware of a personal medical condition that may \ncompromise his safety while performing duties at work.  \nStanley stated that he has been having pain in his right hand \nand forearm since December 2019.  Husqvarna is requesting \nthat you review her ability to safely perform the essential \n\nCHEATHEM - H005060      7\n  \n \n \nfunctions noted in the attached job description and provide \nmedical advice regarding any restrictions prior to their return \nto work.   \nIn addition to the attached job description, the job has general \nrequirements as follows: \n •  Hand eye coordination \n •  Fast paced work environment \n •  Use of hand held power tools \n •  Standing for periods of time up to 10 hours \n •  Lifting up to 40 pounds \n \nHusqvarna is requesting that you document any restrictions or \nlimitations as well.... \n \n On October 9, 2020, the claimant signed an APPLICATION FOR \nUNEMPLOYMENT INSURANCE BENEFITS.  The claimant reported on the \nAPPLICATION that he began working for the respondents, Husqvarna \nOutdoor Products, on October 17, 2016 and that the DATE LAST WORK \nENDED was July 14, 2020.   \n Melanie Hearnsberger McGuire, APRN examined the claimant at \nHope Family Practice Center on October 14, 2020: \nHe presented with wrist pain.  At night wrist locks up and has \nto use other hand to get it unstuck, when he squeezes \nsomething and tries to turn pain radiates up arm.  It is located \non the right.  The symptoms started 1 years ago.  Pt is a 49 \ny/o BM who is new to our clinic.  He complains of chronic wrist \npain.  Reports most of his pain is at night and in the morning.  \nAt times he has to use his opposite hand to manually \n[maneuver] his right wrist because it feels like it locks up.  \nPain is located in the wrist but radiates up his forearm.  States \npain improves after he has moved wrist for a little while.  \nReports after he has been using his wrist a lot, he develops a \nsoft knot on the lateral side of the wrist.  Reports he has had \nthis kind of problem previously prior to his trigger finger \ndevelopment in 2018. \n\nCHEATHEM - H005060      8\n  \n \n \n \n Melanie McGuire noted “ROM – wrist:  crepitus.”  Ms. McGuire \ndiagnosed “Chronic pain of right wrist,” “Osteoarthritis of right wrist, \nunspecified osteoarthritis type,” “Tendonitis of wrist, right,” and “Body mass \nindex (BMI) 25.0-25.9, adult.”     \nMelanie McGuire reported on October 14, 2020: \nStanley Cheatham (sic), DOB 11/11/1970, came to our office \ntoday due to right wrist pain.  He may return to work on \n10/15/2020 with the following restrictions:  no use of hand \nheld power tools with his right hand, no lifting of 5 pounds or \nmore with the right hand, and must wear wrist brace/splint \nwith any activity.  This is the first visit with this gentleman, so \nthe work excuse is for today only.  Thank you.  \n \n Dr. G. Thomas Frazier examined the claimant on November 9, 2020: \nStanley Ray Cheatham (sic) is a 49 y.o. male patient Who \npresents today for evaluation of a 9-10 month history of right \nwrist pain.  His symptoms began in December of  2019.  He \nhe (sic) works at Husqvarna making small engines and \nanother (sic) equipment.  The pain and weakness in his right \nwrist is fairly constant and worse with even light grasping or \nlifting activities.  He denies any history of a remote injury.  He \nhas been wearing a wrist splint and taking ibuprofen 600 mg.  \nHe has also applied some topical ointments without significant \nimprovement.... \nRight hand and wrist \nThere is Mild diffuse swelling over the dorsal aspect of the \nwrist, with tenderness to palpation over the radiocarpal joint, \nmore towards the radial styloid.... \nRadiographic interpretation: \nPA, lateral, and scaphoid views of the right wrist show a \nscapholunate diastasis with dorsal intercalated segment \ninstability.  There are arthritic changes at the radial styloid \nconsistent with a scapholunate advanced collapse deformity, \nstage 1-2.   \n \n\nCHEATHEM - H005060      9\n  \n \n \n Dr. Frazier assessed “Scapholunate advanced collapse deformity the \nright wrist.”  Dr. Frazier treated the claimant conservatively.   \n Dr. Frazier noted on December 7, 2020, “The patient returns for \nfollow-up of his right wrist pain secondary to a scapholunate advanced \ncollapse deformity, stage II.  He reports improvement in his wrist pain \nfollowing intra-articular corticosteroid and local anesthetic injection.  He \ncontinues to wear a carpal strap or soft wrist support....The patient will \ncontinue to wear a carpal strap for support of his wrist when engaging in \nstrenuous activity.  He may increase activities as tolerated....He will return if \nhe has further problems or concerns regarding his right wrist, and otherwise \non a p.r.n. basis.”   \n The claimant returned to Melanie McGuire on December 30, 2020: \n  He presented with wrist pain.   \nF/U right wrist pain.  Stated now having numbness from \nfingers to elbow.  Was seeing Dr. Frazier in Little Rock.... \nPt is a 50 y/o BM who presents for follow up on right wrist \npain.  Pt was seen by Dr. Frazier on 11/9 and diagnosed with \nscapholunate advanced collapse of right wrist.  Pt received \nintra-articular injection of betamethasone and lidocaine.  Was \ninstructed to wear a thumb spica splint x4 weeks.  Pt was \nreleased to prn based visits at f/u visit on 12/7.  On 12/7, pt \nreported improvement in symptoms after injection and \nsplinting.  Pt was advised to wear carpal strap with strenuous \nactivity, increase activity as tolerated, continue OTC pain \nmeds, and to return if problems continued.  Pt requests \nsecond opinion because the injection did not fix the problem \nand he does not want surgery.  States he feels like his \nsymptoms are the direct result of an acute injury at work \ninstead of an injury sustained in his 20’s that has progressed \nto the point where he is now.  Patient denies ever having \n\nCHEATHEM - H005060      10\n  \n \n \nacute injury to wrist.  Patient works at Husqvarna where he \nuses hand tools to build small engines.  Previously had the \nsame symptoms in his left wrist.  Reports he had surgery in \n2018 which fixed the symptoms in his left wrist.... \n \n Ms. McGuire physically examined the claimant’s right wrist and \nreported “swelling mild.”  It was noted that the claimant requested a second \nopinion with Dr. Brian Norton.   \n Dr. Norton examined the claimant at OrthoArkansas on or about \nJanuary 16, 2021: \nStanley Cheathem is a 50 year old Male who presents to \ndiscuss concerns about their Wrist, that began on \n12/19/2019.... \nInjury occurred:  Repetitive gripping, pinching & twisting at a \nfast pace for extended periods of time.  On my job.... \nWork status:  Not working.... \nThis is a 50-year-old male that presents with complaints of \nright wrist pain and swelling.  He looks the pain to the radial \nside of his wrist.  He states that the pain for the past several \nmonths.  He describes the pain as a dull and shooting type \npain.  He cannot recall a specific injury or event that initiated \nsymptoms.  He states pain is worse with use of the wrist as \nwell as wrist extension or flexion.  Pain is improved with \nrest.... \n \n Dr. Norton reported “Mild swelling” in the claimant’s right wrist and \nhand.  X-ray showed “Scapholunate diastases with evidence of advanced \ncollapse.”  Dr. Norton assessed “1.  Right SLAC wrist with chronic pain” and \nplanned, “1.  I discussed with the patient today both surgical and \nnonsurgical treatment options....2.  The patient would like to think about his \n\nCHEATHEM - H005060      11\n  \n \n \ntreatment options and then let me know.  He is recent (sic) received a \nsteroid injection that only provided temporary relief.”   \n The claimant followed up with Dr. Norton on March 10, 2021:  “At this \npoint the patient does continue to have radial sided wrist pain.  I discussed \nwith him once again treatment options.  He still is reluctant about having a \npartial wrist fusion.  He is going to think about this and let me know.  In the \nmeantime I will place him in a removable cast to further immobilize the \nwrist.  He will let me know when he wants to proceed with surgery.”   \nA pre-hearing order was filed on March 1, 2023.  According to the \ntext of the pre-hearing order, the claimant contended, “The claimant \ncontends that on or about December 19, 2019, he was relocated to a new \nposition, line and job that he wasn’t used to performing.  His right wrist had \nbeen irritated for a few weeks before he was moved to the new job, but \nnothing unusual for the type of work he performed.  The claimant contends \nthe newly assigned position caused him to use his right wrist in a more \ndemanding way that really ignited the pain, causing him to request and \nseek medical treatment.  The plant nurse, Yvonne Moorland, wrapped and \nrubbed the claimant’s right wrist.” \n The parties stipulated that the respondents controverted the claim.  \n The respondents contended, “The respondents contend the claimant \ncannot meet his burden of proof pursuant to the Act in demonstrating he \n\nCHEATHEM - H005060      12\n  \n \n \nsustained a gradual onset injury that culminated in disability as of \nDecember 19, 2019.  The respondents contend the claimant did not injure \nhis right wrist within the course and scope of his employment and, \ntherefore, he did not sustain a compensable gradual onset injury to his right \nwrist.  The respondents contend the relevant medical reports indicate the \nclaimant already had a scapholunate advanced collapse of his right wrist as \nwell as osteoarthritis of his right wrist which are non-compensable \nconditions/injuries.”   \n The parties agreed to litigate the following issues: \n1.  Whether the claimant sustained a gradual onset \ncompensable injury within the meaning of the Arkansas’ \nWorkers’ compensation Act (the Act) to his right wrist on \nDecember 19, 2019. \n2.  If the claimant’s alleged injury is deemed compensable, the \nextent to which he is entitled to medical and indemnity \nbenefits. \n3.  Whether the claimant’s attorney is entitled to a \ncontroverted fee on these facts. \n4.  The parties specifically reserve any and all other issues for \nfuture litigation and/or determination.   \n \n After a hearing, an administrative law judge filed an opinion on July \n12, 2023.  The administrative law judge found, among other things, that the \nclaimant was entitled to medical treatment “related to his compensable right \nwrist injury.”  The respondents appeal to the Full Commission. \nII.  ADJUDICATION \n\nCHEATHEM - H005060      13\n  \n \n \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n  (A)  “Compensable injury” means: \n(ii)  An injury causing internal or external physical harm to the \nbody and arising out of and in the course of employment if it is \nnot caused by a specific incident or is not identifiable by time \nand place of occurrence, in the injury is: \n(a)  Caused by rapid repetitive motion.... \n \n In analyzing whether an injury is caused by rapid repetitive motion, \nthe standard is a two-pronged test:  (1)  the tasks must be repetitive, and \n(2)  the repetitive motion must be rapid.  Malone v. Texarkana Public \nSchools, 333 Ark. 343, 969 S.W.2d 644 (1998).   \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) further provides, in \npertinent part: \n(E)  BURDEN OF PROOF.  The burden of proof of a \ncompensable injury shall be on the employee and shall be as \nfollows: \n(ii)  For injuries falling within the definition of compensable \ninjury under subdivision (4)A)(ii) of this section, the burden of \nproof shall be by a preponderance of the evidence, and the \nresultant condition is compensable only if the alleged \ncompensable injury is the major cause of the disability or need \nfor treatment.   \n\nCHEATHEM - H005060      14\n  \n \n \n \n Preponderance of the evidence means the evidence having greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 \nArk. App. 269, 101 S.W.3d 252 (2003).  “Major cause” means “more than \nfifty percent (50%) of the cause,” and a finding of major cause shall be \nestablished according to the preponderance of the evidence.  Ark. Code \nAnn. §11-9-102(14)(A)(Repl. 2012).    \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  The Full \nCommission has the duty to decide the case de novo and we are not bound \nby the characterization of evidence adopted by the administrative law judge.  \nTyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).   \n In the present matter, an administrative law judge found, among \nother things, that the claimant proved his job duties for the respondents \n“constituted rapid repetitive motion.”  The Full Commission finds that the \nclaimant proved by a preponderance of the evidence that he sustained a \ncompensable injury.  The claimant became employed with the respondents \nin 2016.  The claimant described his work on a “carousel” assembly line as \n\nCHEATHEM - H005060      15\n  \n \n \ninvolving rapid repetitive motion with both upper extremities.  The claimant \ntestified regarding his assembly-line work, “Most of the time we ran units 12 \nto 15 seconds, you know, per unit and taking the high end, just saying \nmaybe 15 seconds, there was going to be about 200 units an hour or 240 \nunits an hour maybe, and that’s about 2,000 I think a day.”  The claimant’s \nwork required “torquing down screws” and “pulling wires” at a rapid, \nrepetitive pace over a period of several hours.  Dr. Norton described \n“repetitive gripping and pinching activities” in July 2018 and eventually \nperformed a left thumb A1 pulley release.   \n The claimant’s testimony indicated that he returned to work for the \nrespondents following the surgery to his left upper extremity.  The claimant \ntestified that his physical condition was “tolerable until December of 2019.”  \nThe claimant testified that his job duties were increased and caused more \nstress and bending of his right wrist.  The claimant subsequently began \ntreating with the respondent-employer’s company nurse for increased work-\nrelated symptoms in his right upper extremity.  A First Aid report on July 1, \n2020 described “repetative (sic) motion” in the claimant’s right wrist.  FIRST \nAID NOTES on July 14, 2020 indicated that the claimant “Must bring MD \nrelease to return to work.”  A Human Resources letter on July 15, 2020 \nstated that the claimant’s work included a “Fast paced work environment” \nwith “Use of hand held power tools.”  Melanie McGuire, APRN began \n\nCHEATHEM - H005060      16\n  \n \n \ntreating the claimant in October 2020 and related the claimant’s right wrist \npain to his work for the respondents.  Ms. McGuire reported that the \nclaimant should no longer use hand-held power tools “and must wear wrist \nbrace/splint with any activity.”  The claimant also treated with Dr. Frazier \nand Dr. Norton.     \n Whether or not an employee was performing rapid repetitive motion \nis not a mathematical formula but is a finding of fact based on the \ncircumstances of each particular case.  Hapney v. Rheem Manufacturing \nCo., 67 Ark. App. 8, 992 S.W.2d 151 (1999).  In the present matter, the \nclaimant’s credible testimony indicates that his assembly line work for the \nrespondents was both rapid and repetitive.  The claimant testified that he \nwas assembling 200-240 units per hour over the course of a full day’s work \nshift, and that such work required strenuous use of his left and right hands.  \nThe evidence demonstrates that the claimant’s tasks in the respondents’ \nemployment were repetitive, and that the repetitive motion was rapid.  \nMalone, supra \n The claimant proved by a preponderance of the evidence that he \nsustained a “compensable injury” in accordance with Ark. Code Ann. §11-9-\n102(4)(A)(ii)(a)(Repl. 2012).  The claimant proved that he sustained an \ninjury causing physical harm to the body, that the injury arose out of and in \nthe course of employment, and that the injury was caused by rapid \n\nCHEATHEM - H005060      17\n  \n \n \nrepetitive motion.  The claimant also established a compensable injury by \nmedical evidence supported by objective findings, namely the reports of \n“swelling” in the claimant’s right wrist and hand as observed by Dr. Frazier, \nMs. McGuire, and Dr. Norton.  Swelling can be an objective medical finding \nestablishing a compensable injury.  White County Med. Ctr. v. Johnson, \n2022 Ark. App. 262, 646 S.W.3d 245.  Finally, the claimant proved by a \npreponderance of the evidence that the compensable injury was the major \ncause of his need for treatment.   \n After reviewing the entire record, therefore, the Full Commission \nfinds that the claimant proved he sustained a compensable injury to his \nright wrist and hand, which injury was caused by rapid repetitive motion in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(ii)(a)(Repl. 2012) et seq.  \nThe claimant proved that the medical treatment of record provided on and \nafter December 19, 2019 was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  For prevailing on appeal to the \nFull Commission, the claimant’s attorney is entitled to fees for legal \nservices, pursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \n \n \n \n \n\nCHEATHEM - H005060      18\n  \n \n \n IT IS SO ORDERED.   \n  \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n I must respectfully dissent from the Majority’s finding that the \nclaimant proved he sustained a compensable injury to his right wrist. \nArkansas Code Annotated § 11-9-102 (4)(A)(ii) (Repl. 2002) provides \nthat a compensable injury includes: \n(ii) An injury causing internal or external \nphysical harm to the body and arising out \nof and in the course of employment if it is \nnot caused by a specific incident or is not \nidentifiable by time and place of \noccurrence, if the injury is: \n \n(a) Caused by rapid repetitive motion. \n \nWhen a rapid repetitive motion injury is argued to be an aggravation \nof a pre-existing condition, the claimant must prove by a preponderance of \nthe evidence that the injury: (1) arose out of and in the course of his \nemployment; (2) caused internal or external physical harm to the body \nrequiring medical services; (3) was caused by rapid repetitive motion; (4) \nwas the major cause of the disability or need for treatment; and (5) was \n\nCHEATHEM - H005060      19\n  \n \n \nestablished by medical evidence supported by objective findings.  Parker v. \nAtlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004); See \nalso Ark. Code Ann. § 11-9-102(4)(A) and (E). \nThere is no medical evidence or testimony that supports a finding \nthat the claimant’s right wrist osteoarthritis was a result of his work with the \nrespondent employer.  As an initial matter, the claimant admitted in his \ntestimony that he has never received any kind of permanent disability \ndiagnosis.  (Hrng. Tr, Pp. 54-55).  The only medication the claimant takes \nfor his purported injury is over the counter Ibuprofen “[a]s I need it.  It \nstiffens up sometimes, tightens up, and I take over-the-counter Ibuprofen.” \n(Hrng. Tr, Pp. 49, 58).  The claimant occasionally wears a wrist brace but \nwas not wearing one at the time of the hearing and has not seen a doctor \nfor his right wrist in approximately two years.  (Hrng. Tr, Pp. 50, 56). \nThe claimant first received medical treatment for his right wrist at \nHope Family Practice Center where he complained of chronic right wrist \npain.  (Resp. Ex. 2, P. 3). Claimant was diagnosed with “[o]steoarthritis of \nright wrist, unspecified osteoarthritis type and . . . Chronic pain of right \nwrist.”  (Resp. Ex. 2, P. 4).  He was prescribed ibuprofen at that time.  Id.  \nAt an October 28, 2020 visit with Hope Family Practice Center, APRN \nMelanie Hearnsberger McGuire reviewed an X-ray of the claimant’s wrist \nand found “widening of scapholunate interval and cystlike changes along \n\nCHEATHEM - H005060      20\n  \n \n \nthe radial aspect of the distal scaphoid pole” and diagnosed “[i]njury of the \nright scapholunate ligament with no instability.”  (Resp. Ex. 2, P. 8).  \nAfter a referral from APRN McGuire, the claimant visited Dr. G. \nThomas Frazier, an orthopedic surgeon at UAMS, on November 9, 2020. \n(Resp. Ex. 2, Pp. 10-24).  Dr. Frazier reviewed the claimant’s radiographic \nfindings and observed “scapholunate diastasis with dorsal intercalated \nsegment instability.  There are arthritic changes at the radial styloid \nconsistent with a scapholunate advanced collapse deformity.”  (Resp. Ex. 2, \nP. 13).  The claimant received a steroid injection at that time, and Dr. \nFrazier recommended symptomatic treatment.  (Resp. Ex. 2, P. 19).  Dr. \nFrazier did not take the claimant off work at that time and made no \nconnection between the claimant’s work and his complaints. \nOn December 30, 2020, the claimant obtained a referral for second \nopinion from Dr. Brian Norton who had conducted a previous surgery on the \nclaimant’s left hand.  (Resp. Ex, 2, P. 29).  As of March 10, 2021, Dr. \nNorton’s findings mirrored those of Hope Family Practice and Dr. Frazier: \nradiographic findings showed scapholunate diastases with evidence of \nadvanced collapse, and Dr. Norton diagnosed primary osteoarthritis in the \nright wrist.  (Resp. Ex. 2, Pp. 36-37).  Like Dr. Frazier, Dr. Norton made no \nconnection between the claimant’s work and his condition. \n\nCHEATHEM - H005060      21\n  \n \n \nThe record is clear that the claimant’s right wrist condition is \ndegenerative in nature.  There is no indication that any purported rapid \nrepetitive motion could have resulted in the claimant’s osteoarthritis, nor \ndoes any medial practitioner or orthopedic specialist state that the \nclaimant’s scapholunate diastasis is the result of his working conditions. \nThere is simply no objective evidence that this injury was work related, was \nthe major cause of the claimant’s need for treatment or has been \nestablished by medical evidence supported by any objective findings. \nIn workers’ compensation cases, a decision often rests solely on the \ncredibility of the claimant as a witness.  A determination of the weight and \ncredibility of a witness' testimony is exclusively within the province of the \nCommission.  Wade v. Mr. C. Cavenaugh's, 298 Ark. 363, 768 S.W.2d 521 \n(1989). The Commission has the right to believe or disbelieve the testimony \nof any witness, and the Commission's decision is entitled to the weight we \ngive a jury verdict.  Tyson Foods, Inc. v. Disheroon, 26 Ark. App. 145, 761 \nS.W.2d 617 (1988). \n In the present case, we are unable to rely on the claimant’s \ntestimony regarding the source and nature of his injury, as he has proven \nhimself to be unreliable.  From the outset, the claimant was dishonest on \nhis application for unemployment insurance through the Arkansas \nDepartment of Workforce Services, stating he was unemployed due to \n\nCHEATHEM - H005060      22\n  \n \n \nmedical leave.  (See Resp. Ex. 3).  Further, the respondents obtained an \ninvestigator to observe the claimant, who found that he “is very active with \nhis right hand.”  (Resp. Ex. 1, P. 1).  On October 22, 2020, the investigator \nobserved the claimant walking a dog holding “the leash with his left hand \nand at times with his right hand at other times.  The dog often pulled and \ntugged on the leash.  The subject did not have a brace or any other device \non either wrist or hand.”  (Resp. Ex. 1, P. 1).  This was a consistent pattern \nwith the claimant through October of 2023.  (See Resp. Ex. 1, Pp. 3, 5, 7). \nThe claimant testified that the dogs in question are American Bulldogs that \ncan weigh up to fifty pounds.  (Hrng. Tr, P. 41).  At the time of the hearing, \nthe claimant had six of these dogs in his care. (Hrng. Tr, P. 51). \n From these observations and the claimant’s own responses when \npressed, it is clear that his capabilities far exceed what the claimant asserts. \nWhile the claimant alleges chronic, debilitating pain, he is consistently able \nto continue the daily activities of life and the care of the dogs he hopes to \none day enter the business of selling.  For this reason, any testimony by the \nclaimant regarding the source and nature of his injury must be disregarded. \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":35744,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H005060 STANLEY R. CHEATHEM, EMPLOYEE CLAIMANT HUSQVARNA OUTDOOR PRODUCTS, INC., EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY CORP./ CORVEL ENTERPRISE COMP., INC., INSURANCE CARRIER/TPA RESPONDENT","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["wrist","repetitive","back"],"fetchedAt":"2026-05-19T22:29:45.969Z"},{"id":"alj-H301180-2024-02-22","awccNumber":"H301180","decisionDate":"2024-02-22","decisionYear":2024,"opinionType":"alj","claimantName":"Lucy Glass","employerName":"Gurdon Truck Stop & Travel Center","title":"GLASS VS. GURDON TRUCK STOP & TRAVEL CENTER AWCC# H301180 FEBRUARY 22, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GLASS_LUCY_H301180_20240222.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GLASS_LUCY_H301180_20240222.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        AWCC CLAIM NO.: H301180 \n \nLUCY GLASS,   \nEMPLOYEE                                                                                                                CLAIMANT                                   \n \nGURDON TRUCK STOP & TRAVEL CENTER,  \nEMPLOYER                                                                                                           RESPONDENT  \n \nFIRST COMP. INSURANCE COMPANY,              \nINSURANCE CARRIER                                                                                       RESPONDENT \n \nMARKEL SERVICE, INC., \nTHIRD PARTY ADMINISTRATOR (TPA)                                                        RESPONDENT \n                                                                                                                                                                                  \n                                               \nOPINION FILED FEBRUARY 22, 2024    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant, pro se, did not appear at the hearing. \n \nRespondents represented by the Honorable Amelia Botteicher, Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis  matter  comes  before  the  Commission  pursuant  to  the  Motion  to  Dismiss  filed  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  November  15,  2023,  in  Little  Rock, \nArkansas.  Thus, the sole issue for determination is whether this claim should be dismissed due to \nthe Claimant’s failure  to  prosecute  it  under  Ark.  Code  Ann.  §11-9-702  (Repl.  2012),  and/or \nArkansas Workers’ Compensation Commission Rule 099.13. \n The record consists of the November 15, 2023, hearing transcript.  In order to adequately \naddress  this  matter  under  Ark.  Code  Ann.  §  11-9-705(a)(1)  (Repl.  2012)(Commission  must \n“conduct the hearing  . . . in a manner which best ascertains the rights of the parties”), and without \n\nGlass – H301180 \n \n2 \n \nobjection,  I  have  blue-backed  to  the correspondence from the Commission’s file on this  claim, \nconsisting of nine pages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, ___ \nS.W.3d ___, these documents have been served on the parties in conjunction with this opinion. \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by \nlaw.   \n No testimony was taken at the hearing. \n                            Background \nThe record reflects the following procedural history: \nThe  Claimant  filed  a  Form  AR-C  with  the Commission  on  February  15,  2023,  asserting \nentitlement to workers’ compensation benefits.    Per this  document,  the  Claimant  sustained  an \naccidental work-related injury was January 14, 2023.  According to this document, the Claimant \nsustained injuries to her right hip, right shoulder, and right knee.  The Claimant marked all of the \nboxes for workers’ compensation benefits.  Yet, at that time, there was no request for a hearing \nmade.       \nOn March 13, 2023, the Respondents filed a Form AR-2 with the Commission accepting \nliability of this claim in its entirety.  Specifically, claims assistant stated: “Denying cervical injury \nand ONLY accepting the right hip, right knee and right shoulder injuries.”     \nSince the filing of the Form AR-C, the Claimant has not attempted to pursue or otherwise \nresolve this claim for workers’ compensation benefits. \nOn September 15, 2023, the Respondents filed a Motion to Dismiss with the Commission \naccompanied by a certificate of service to the Claimant indicating that they served a copy of the \npleading on her by depositing a copy thereof in the United States Mail.   \n\nGlass – H301180 \n \n3 \n \nThe  Commission  sent  a  letter  advising  the  Claimant  of the  Respondents’  motion  on \nSeptember 18, 2023. This correspondence was sent both certified mail and first-class mail.  Per \nthis letter, the Claimant was given twenty (20) days from the date of that letter to file a response \nto the motion.  \nThe  letter  mailed  to  the  Claimant  by  first  class  mail  has  not  been  returned  to  the \nCommission.    However,  the  letter  mailed  to  the  Claimant  by  certified  mail  was  left  with  an \nindividual at her last known address listed with the Commission.  The signature of the recipient on \nthe tracking information received from the United States Postal Service is illegible.   \nStill, to date, there has been no response from the Claimant in this regard. \nOn October 12, 2023, the Commission sent a Notice of Hearing to the parties letting them \nknow that a hearing was scheduled for November 15, 2023, on the Respondents’ motion to dismiss. \nSaid notice was mailed to the Claimant both by certified and first-class mail.       \nTracking information received by the Commission from the United States Postal Service \nshows that the hearing notice mailed to the Claimant by certified mail was left with an individual \nat her last known address.  Once again, the signature of the recipient on the tracking information \nreceived from the United States Postal Service is illegible.   \nStill, there was no response from the Claimant.   \nHowever,  a  hearing  was  in  fact  conducted on the Respondents’ motion  to  dismiss  as \nscheduled.  The Claimant failed to appear at the hearing to object to  her claim being dismissed.  \nNevertheless, the Respondents’ attorney moved that the claim be dismissed under Ark. Code Ann. \n§11-9-702 and Commission Rule 099.13 due to the Claimant’s failure to prosecute said claim for \nworkers’ compensation benefits.  \n\nGlass – H301180 \n \n4 \n \nReview of the evidence shows that the Claimant has failed to respond to the written notices \nof  this  Commission  and  did  not  appear  at  the  hearing  to  object  to  the  dismissal  of  her  claim.  \nMoreover, since the filing of the Form AR-C in February 2023, the Claimant has not requested a \nhearing.    Considering  all the  foregoing,  I  am  persuaded  to  conclude  that  the  Claimant  has \nabandoned this claim for workers’ compensation benefits.  \nAccordingly,  based  on  my  review  of  the  documentary  evidence,  and  all  other  matters \nproperly before the Commission, I find that the Respondents’ motion  to  dismiss  this  claim  is \nwarranted under the provisions of Ark. Code Ann. §11-9-702 and Rule 099.13 of this Commission.  \nSaid  dismissal  is without  prejudice,  to  the  refiling  of  this  claim  within  the  limitation  period \nspecified by law. \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. Claimant filed a Form AR-C with the Commission on February 15, 2023, \nin  this  matter  asserting  the  Claimant’s entitlement to workers’ \ncompensation benefits due to an incident occurring at work in January 2023. \n \n3. Since this time, and the filing of the Form AR-C, the Claimant has failed to \nmake a bona fide request for a hearing in this matter.    \n \n4. The Respondents filed a Motion to Dismiss this claim in September 2023. \n \n5.         Reasonable notice of the Motion to Dismiss and hearing was had on all the \nparties. The Claimant has failed to respond to the notices of this Commission and \ndid not appear at the hearing to object to her claim being dismissed.   \n \n6.         The evidence preponderates that the Respondents’ motion for dismissal for   \n            a lack of prosecution is warranted.   \n \n7.        That the Respondents’ motion to dismiss is hereby granted pursuant to Ark.  \n\nGlass – H301180 \n \n5 \n \nCode Ann. §11-9-702 and Rule 099.13 without prejudice, to the refiling of \nthe claim within the specified limitation period.   \n \nORDER \nIn  accordance  with  the  foregoing  findings  of  fact  and  conclusions  of  law,  this  claim  is \nhereby dismissed without prejudice, pursuant to Ark. Code Ann. §11-9-702, and Commission Rule \n099.13 to the refiling of it within the specified limitation period.        \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":8664,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H301180 LUCY GLASS, EMPLOYEE CLAIMANT GURDON TRUCK STOP & TRAVEL CENTER, EMPLOYER RESPONDENT FIRST COMP. INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT MARKEL SERVICE, INC., THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FILED FEBRUARY 22, 2024 H...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["hip","shoulder","knee","cervical"],"fetchedAt":"2026-05-19T22:57:33.159Z"},{"id":"alj-H208461-2024-02-22","awccNumber":"H208461","decisionDate":"2024-02-22","decisionYear":2024,"opinionType":"alj","claimantName":"Hansford Gourley","employerName":"Nevada County","title":"GOURLEY VS. NEVADA COUNTY AWCC# H208461 FEBRUARY 22, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GOURLEY_HANSFORD_H208461_20240222.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GOURLEY_HANSFORD_H208461_20240222.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        AWCC CLAIM NO.: H208461 \n \nHANSFORD GOURLEY (DEC’D)  \nEMPLOYEE                                                                                                                CLAIMANT                                   \n \nNEVADA COUNTY,  \nEMPLOYER                                                                                                           RESPONDENT  \n \nASSOC. OF ARKANSAS COUNTIES, WC TRUST,              \nINSURANCE CARRIER                                                                                       RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, \nTHIRD PARTY ADMINISTRATOR (TPA)                                                        RESPONDENT \n                                                                                                                                                                                  \n                                               \nOPINION FILED FEBRUARY 22, 2024    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant, pro se, did not appear at the hearing. \n \nRespondents represented by the Honorable Jarrod Parrish, Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis  matter  comes  before  the  Commission  pursuant  to  the  Motion  to  Dismiss  filed  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  October  24,  2023,  in  Little  Rock, \nArkansas.  Thus, the sole issue for determination is whether this claim should be dismissed due to \nthe Claimant’s failure  to  prosecute  it  under  Ark.  Code  Ann.  §11-9-702  (Repl.  2012),  and/or \nArkansas Workers’ Compensation Commission Rule 099.13. \n The  Claimant,  per  my  review  of  Commission  records  is  pro  se,  failed  to  appear  at  the \nhearing. The record consists of the October 24, 2023, hearing transcript.  Admitted into evidence \nwas Respondents’ Exhibit 1, pleadings, correspondence and forms related to this claim, consisting \n\nGOURLEY – H208461 \n \n2 \n \nof  seven  numbered  pages.    Additionally,  in  order  to  adequately  address  this  matter  under  Ark. \nCode Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing  . . . in a manner \nwhich best ascertains the rights of the parties”), and without objection, I have blue-backed to the \ncorrespondence from the Commission’s file on this claim, consisting of three pages.  In accordance \nwith Sapp v. Tyson Foods, Inc., 2010 Ark. App. 517, ___ S.W.3d ___, these documents have been \nserved on the parties in conjunction with this opinion. \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by \nlaw.   \n No testimony was taken at the hearing. \n                            Background \nThe record reflects the following procedural history: \nThe deceased Claimant’s widowed representative, Christy Gourley,  filed  a  Form  AR-C \nwith  the  Commission  on  December  15,  2022,  asserting  the Claimant’s entitlement to workers’ \ncompensation benefits.  Per this document, the Claimant’s wife alleged that he sustained a fatal \nheart  attack  while  working  for  the  respondent-employer.    The  date  of  the Claimant’s alleged \naccidental  work-related  injury  was  November  2,  2022.  According  to  this  document,  the \nClaimant’s widow did not mark any of the boxes for workers’ compensation benefits.  Yet, at that \ntime, there was no request for a hearing made.       \nOn or about December 5, 2022, the Respondents filed a Form AR-2 with the Commission \ncontroverting liability of this claim in its entirety.   Specifically, the claims adjuster wrote: “Denied. \nNot a result of a work-related incident.”  \nStill, the Claimant has not attempted to pursue or otherwise resolve this claim for workers’ \ncompensation benefits since the filing of the Form AR-C in December 2022. \n\nGOURLEY – H208461 \n \n3 \n \nOn  August  29,  2023,  the  Respondents  filed  a  Motion  to  Dismiss  with  the  Commission \naccompanied by a certificate of service to the Claimant’s widow indicating that they served a copy \nof the pleading on her by depositing a copy thereof in the United States Mail.   \nThe Commission sent a letter advising the Claimant of the Respondents’ motion on August \n31, 2023, via both certified mail and first-class mail.  Per this letter, the Claimant was given twenty \n(20) days from the date of that letter to file a response to the motion.  \nThe  letter  mailed  to  the  Claimant  by  first  class  mail  has  not  been  returned  to  the \nCommission.    However,  the  letter  mailed  to  the  Claimant  by  certified  mail  was  left  with  an \nindividual at her last known address listed with the Commission.  \nStill, to date, there has been no response from the Claimant in this regard. \nOn  September  20,  2023,  the  Commission  sent  a  Notice  of  Hearing  to  the  parties  letting \nthem  know  that  a  hearing  was  scheduled  for  October  24,  2023, on the Respondents’ motion  to \ndismiss. \nSaid notice was mailed to the Claimant by certified and first-class mail.       \nTracking information received by the Commission from the United States Postal Service \ndid not show any delivery information on this item.  However, the letter mailed to the Claimant \nvia first-class mail has not been returned to the Commission.     \nThere was no response from the Claimant.   \nHowever,  a  hearing  was  in  fact  conducted on the Respondents’ motion  to  dismiss  as \nscheduled.  The Claimant failed to appear at the hearing to object to this workers’ compensation \nclaim  being  dismissed.    Nevertheless,  the  Respondents’  attorney  moved  that  this  claim  be \ndismissed under Ark. Code Ann. §11-9-702 and Commission Rule 099.13 due to the Claimant’s \nspouse failure to prosecute it.  \n\nGOURLEY – H208461 \n \n4 \n \nReview of the evidence shows that the Claimant has failed to respond to the written notices \nof this Commission and did not appear at the hearing to object to the dismissal.  Moreover, since \nthe  filing  of  the  Form  AR-C  in  December  2022,  the  Claimant  has  not  requested  a  hearing.  \nConsidering all the foregoing, I am persuaded to conclude that the Claimant has abandoned this \nclaim for workers’ compensation benefits.  \nAccordingly,  based  on  my  review  of  the  documentary  evidence,  and  all  other  matters \nproperly before the Commission, I find that the Respondents’ motion  to  dismiss  this  claim  is \nwarranted under the provisions of Ark. Code Ann. §11-9-702 and Rule 099.13 of this Commission.  \nSaid  dismissal  is without  prejudice,  to  the  refiling  of  this  claim  within  the  limitation  period \nspecified by law. \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n \n2. Claimant’s widow filed a Form AR-C with the Commission on December \n15,  2022, in this matter asserting the Claimant’s entitlement to workers’ \ncompensation  benefits  due  to  an  incident  occurring  at  work in  November \n2022. \n \n3. Since this time, and the filing of the Form AR-C, the Claimant has failed to \nmake a bona fide request for a hearing in this matter.    \n \n4. The Respondents filed a Motion to Dismiss this claim in September 2023. \n \n5.         Reasonable notice of the Motion to Dismiss and hearing was had on all the \nparties.    The  Claimant  has  failed  to  respond  to  the  notices  of  this \nCommission and did not appear at the hearing to object to this claim being \ndismissed.   \n \n6.         The evidence preponderates that the Respondents’ motion for dismissal is   \n            warranted.   \n\nGOURLEY – H208461 \n \n5 \n \n \n7.        That the Respondents’ motion to dismiss is hereby granted pursuant to Ark.  \nCode Ann. §11-9-702 and Rule 099.13 without prejudice, to the refiling of \nthe claim within the specified limitation period.   \n \nORDER \nIn accordance with the foregoing findings of fact and conclusions of law, this claim is  \nhereby dismissed without prejudice, pursuant to Ark. Code Ann. §11-9-702 and Commission Rule \n099.13, to the refiling of it within the specified limitation period.        \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":8800,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H208461 HANSFORD GOURLEY (DEC’D) EMPLOYEE CLAIMANT NEVADA COUNTY, EMPLOYER RESPONDENT ASSOC. OF ARKANSAS COUNTIES, WC TRUST, INSURANCE CARRIER RESPONDENT AAC RISK MANAGEMENT SERVICES, THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FILED FEBRUARY 2...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:57:35.256Z"},{"id":"alj-H304075-2024-02-22","awccNumber":"H304075","decisionDate":"2024-02-22","decisionYear":2024,"opinionType":"alj","claimantName":"Tony Langston","employerName":"L’oreal USA, Inc","title":"LANGSTON VS. L’OREAL USA, INC. AWCC# H304075 FEBRUARY 22, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Langston_Tony_H304075_20240222.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Langston_Tony_H304075_20240222.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H304075 \n \n \nTONY LEE LANGSTON, EMPLOYEE CLAIMANT \n \nL’OREAL USA, INC., \n EMPLOYER RESPONDENT \n \nXL INS. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 22, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on November 30, 2023, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr.  Lee  J.  Muldrow,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On  November  30,  2023,  the  above-captioned  claim  was  heard  in  Little  Rock, \nArkansas.    A  pre-hearing  conference  took  place  on  September  11,  2023.  The \nPrehearing  Order  entered  that  same  day  pursuant  to  the  conference  was  admitted \nwithout  objection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that \nthe  stipulations,  issues,  and  respective  contentions,  as  amended,  were  properly  set \nforth in that order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in Commission \nExhibit 1.  With an amendment of the fourth, they are the following, which I accept: \n\nLANGSTON – H304075 \n2 \n \n1. The Arkansas  Workers’  Compensation  Commission  has jurisdiction  over \nthis claim. \n2. The  employee/employer/carrier  relationship  existed  on  or  about  April  13, \n2023, and at all other relevant times. \n3. Respondents   initially   accepted   this   claim   as   compensable   and   paid \nmedical  and  temporary  total  disability  benefits  pursuant  thereto;  but  they \nhave since controverted the claim in its entirety. \n4. Claimant’s average weekly wage of $947.82 entitles him to compensation \nrates of $632.00/$474.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.    After  Claimant  elected  to  reserve  the  issue  of  whether  he  is  entitled  to temporary \ntotal disability benefits, the following were litigated: \n1. Whether  Claimant  sustained  a  compensable  injury  to  his  lower  back  by \nspecific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n\nLANGSTON – H304075 \n3 \n \n Claimant: \n1. Claimant  contends  that he sustained a  compensable  injury  to  his  lower \nback by specific incident on or about April 13, 2023, and that he is entitled \nto reasonable and necessary medical treatment therefor. \nRespondents: \n 1. Respondents  dispute  the  injury  account  given  by  Claimant.    There  is  no \nobjective  evidence  of  an  injury.    To  the  extent  that  Claimant  has  health \nissues, they did not arise out of or in the course of his employment. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  deposition \ntranscript, non-medical documents, and other matters properly before the Commission, \nand  having  had  an  opportunity  to  hear  the  testimony  of  the  witnesses  and  to  observe \ntheir  demeanor,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that he \nsustained a compensable injury to his lower back by specific incident. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  reasonable  and  necessary  medical  treatment  of  his  alleged \nlower back injury. \n\nLANGSTON – H304075 \n4 \n \nCASE IN CHIEF \nSummary of Evidence \n The hearing witnesses were Claimant and William Castner. \n In  addition  to  the  prehearing  order  discussed  above,  admitted  into  evidence in \nthis  case  were  the  following:    Commission  Exhibit  2,  an  email  from  Respondents’ \ncounsel  to  Claimant  (copying,  inter  alia,  the  undersigned)  dated  November  21,  2023, \nregarding  exhibits  and  witnesses,  consisting  of  one  page;  Claimant’s  Exhibit  1, a \ncompilation  of  his  medical  records,  consisting  of  37  pages;  Claimant’s  Exhibit  2, \nwork/school  excuse  slips,  consisting  of  two  pages; Respondents’  Exhibit  1,  another \ncompilation of  Claimant’s  medical  records,  consisting  of one  index  page  and 34 \nnumbered  pages  thereafter; Respondents’  Exhibit 2,  a  flash  drive  containing  video \nfootage;  and  Respondents’  Exhibit  3,  a  photograph  of  the  forklift  and  damaged  trailer \nflooring related to the incident at issue. \n Also,  I  have  blue-backed  to  the  record  the  post-hearing  briefs  of Respondent, \nfiled on December 13, 2023, and consisting of four numbered pages. \nAdjudication \nA. Compensability \n Standards.   Arkansas Code  Annotated  § 11-9-102(4)(A)(i)  (Repl.  2012),  which I \nfind   applies   to   the   analysis   of Claimant’s   alleged   lower   back   injury,   defines \n“compensable injury”: \n(i) An  accidental  injury  causing  internal  or  external  physical  harm  to \nthe  body  .  .  .  arising  out  of  and  in  the  course  of  employment  and \nwhich requires medical services or results in disability or death.  An \n\nLANGSTON – H304075 \n5 \n \ninjury is “accidental” only if it is caused by a specific incident and is \nidentifiable by time and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16). \n If  Claimant  fails  to  establish  by  a  preponderance  of  the  evidence any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n Discussion.    Claimant  has  asserted  that  while  working  for  Respondent  L’Oreal \nUSA  (“L’Oreal”)   on April  13,  2023,  he  suffered a  compensable  injury  to  his  lower  back \nwhen a  forklift  that  he  was  driving  fell  through  the  floor  of  a  trailer  in  which  he  was \noperating  the  equipment.  Respondents  do  not  dispute  that  Claimant  was  performing \nemployment  services  at  the  time  of  the  alleged  incident.    Indeed,  the video  footage  of \nthe incident, discussed more fully infra, readily shows this.  Instead, they have asserted \nthat no compensable injury resulted from this. \n Claimant, who is 55 years old and has a graduate equivalency degree, along with \na certification of completion of an automotive program from Arkansas State University-\nSearcy,  testified  that  he  has  been employed at  L’Oreal  since  August  2001.   He began \n\nLANGSTON – H304075 \n6 \n \nworking at the company’s manufacturing facility in North Little Rock as a forklift operator \nin early 2022. \n Asked what happened at work on April 13, 2023, he related: \nWell,  I  was—I  was  working  in  Receiving  and  I  was  unloading  a  trailer, \nand—and so I had already unloaded two trailers or whatever, and—and so \nI was starting on the third trailer but it was about empty.  I mean, it had like \nfive  stacks,  five  stacks  left  on—on—on the  third  trailer,  so  I  left—I  saved \nthat  for  last.    And  when  I  went  in  there  to  start  unloading  the  trailer,  I \nbrought out a stack that was—it was just one stack in the front, but it was \ntwo more stacks behind it, so it was like five stacks just on the trailer.  And \nso the—the—the first stack I brought out was on the right side, and—and \nI—I picked it up and brought it out and put it—put it where it was supposed \nto have been.  So I went back, I went back in to—to grab the other stack.  \nI  was  kind  of  feeling—the floor  was  kind  of  jumping  a  little  bit  but  I  done \nbeen in several trailers like that and—and never had no issues.  But as I \nwas coming back, I—I picked up the—picked up the other stack and was \ncoming  back  out  of  the  trailer  and  I  got—I  got  almost  halfway,  about \nhalfway  in  the  trailer—out  the  trailer  and  was  in  the  middle  of  the  trailer \nand the floor just—the floor, I’m going back like this (demonstrating) and—\nand—and  the  forklift  just  all  of  a  sudden  just  dropped  it,  fell  to the  floor \nwith it . . . [s]o as I’m coming back out the trailer, all of a sudden my forklift \njust  hit  real  hard  through  the  floor  .  .  .  [t]he  forklift—the  floor  gave  in  and \nthe  forklift  went  through—the  back—the  back  tire  went  through  the  floor \nwith it. \n \nClaimant continued: \nThe  head  pain  hit  so hard  or  whatever,  caught me  off  guard  or  whatever \nand kind of terrified me really.  I wasn’t expecting that.  And so, you know, \nI never did—I mean, it wasn’t—at that time—I mean, when it—when it hit \nlike  that  or  whatever,  I  was  so  scared  I—I  felt  like  the  forklift  was  going \nupward  like  that  or  something,  and—and  all  I  could  do  was “Lord—Lord, \nhelp  me,”  like  that.    And  when  I  said  that,  it  seemed  like  everything  just \nwent  white  for  a  second,  and—and  after  that,  I  really—whatever went  on \nin  the  trailer  after  that  right  there,  I  mean,  I  don’t  really  know.    I  mean,  I \nbeen  thinking  about  it  myself,  but  really  don’t  know.    But  I  remember \ngetting  on  the  radio  and  calling  my  supervisor  or  whatever.    I  had  to—I \nhad to use the bathroom.  I don’t know if I used the bathroom on myself at \nthe time.  I was hurting when I—I don’t—I don’t remember getting off the \nforklift or whatever. \n\nLANGSTON – H304075 \n7 \n \n \nI had to—I had to use the bathroom.  I don’t know if I used the bathroom \non  myself  at  the  time.    I  was  hurting  when  I—I  don’t—I  don’t  remember \ngetting  off  the  forklift  or  whatever.    But  after  I  called  my—called  my \nsupervisor,  I  was  letting  him  know  it  was  an  emergency  to  come  to  the \nReceiving, but I’m trying to hurry up and get to the bathroom.  I’m about to \nuse the bathroom on myself.  And so I get to the bathroom and I come out.  \nAfter  I  come  out  of  the  bathroom  and  finally  meet  my  supervisor  or \nwhatever, at first I went back and just—it was burning and I had a burning \nsensation right there, but I—I had to go to the bathroom, and that’s when \neverything just—it hit me, you know what I’m saying, pretty hard and I was \ntrying  to  keep  my  composure ‘cause  I  was  at  work,  didn’t  want  to  see \nnobody seeing me get down bad like that. \n \n In his testimony, Claimant stated that his supervisor, Phillip Kelly, wanted to take \npictures of the trailer floor.  He asked Claimant to drive the forklift and move any pallets \nthat  he  would  move  to  the  back  of  the  trailer  by  way  of  a  pallet  jack.    But  Claimant \ncontinued: \nAfter I tried to get up on my forklift or whatever, I couldn’t and felt like I—\nfelt like my—felt like something in my back has had—flipped—like a bone \nor something flipped, and—and I couldn’t just stand up straight.  And so—I \nmean, all—I mean, it’s kind of hard to describe, but I couldn’t get up on the \nforklift  .  .  .  I  was  in  so  much  pain.    I  was  trying  to  hold  it  in  and  I  was—I \nwas  moaning  and—and  all—I  was  just  tensed  up  tight  the  whole  time \ntrying  to  ease  the  pain  a  little  bit,  but  I—I  couldn’t—I  couldn’t—I  couldn’t \nfinish  my  job.  I  had  to  go  to  Health  Service  and  all—you  know,  so  we \ncould do what we had to do there, and I was—I was trying to get out and \ngo  home  really ‘cause  I  didn’t  want  to  be  at  work  like  that.    I  knew  I \nwouldn’t be able to do nothing. \n \nClaimant  elaborated  that  as  he  was  backing  the  forklift  out  of  the  trailer,  the  left  rear \nwheel  of  the  vehicle  fell  through  the  wooden  floor.    As  a  result,  he  experienced  a \nsudden  onset  of  burning  pain  in  his  lower  back  that  rendered  him  unable to  sit  down.  \nBecause he was upset about what occurred and was in so much discomfort, Claimant \nnever  returned  to  the  trailer  and  visualized  the  hole  in  the  trailer  into  which the  forklift \n\nLANGSTON – H304075 \n8 \n \nwheel  had  fallen.  He  acknowledged  that  he  does  not  remember  whether  or  not  he \ndrove  the  forklift  out  of  the  trailer  after  the  incident  in  question.    He  explained  that he \n“was so terrified at the time . . . it was a scary experience or whatever . . . [i]t hit so hard \n. . . .” \n It was Claimant’s desire at that point simply to go home.  But in order to receive \npermission  to  leave  work  early,  he  first  had  to  go  to  Health  Services  at  the  plant.  \nBecause he was physically unable to drive the forklift there, Claimant was taken by golf \ncart to Health Services.  He stated that his medical records in evidence would detail the \ntreatment  that  he  has  undergone.    While  he  is  contending  only  that  he  suffered  a \ncompensable  injury  to  his  lower  back,  Claimant  related  that  he  also  treated  for \nsymptoms  in  his  chest  that  he  attributed  to  his  ribcage  being  struck  when  the  wheel \nwent  through  the  floor.  The  jarring  motion  was  what  caused  the  burning  pain  in  his \nlower back; the forklift did not strike the side of the trailer. \n After  arriving  at  Health  Services,  Claimant  spoke  by  phone  with  Castner.   He \ninstructed personnel to place a bag of ice on Claimant’s back before he could leave for \nhome,  and  let  Claimant  know  that  he  could  call  him  with  any  questions or  concerns.  \nAfter 15 minutes of this application, Claimant was escorted to his car.  The drive to his \nhouse was difficult, according to him, because of his back condition.  Upon his arrival at \nthe  parking  lot  of  his  apartment  building,  Claimant  experienced  difficulty  exiting  his \nvehicle because of his back condition; he was unable to raise his leg.  He contacted his \nbrother,  who  convinced  him  to  go  to  the  hospital.    They  went  to  the  emergency \ndepartment of Baptist Health. \n\nLANGSTON – H304075 \n9 \n \n On  cross-examination,  Claimant  was  asked  about  the  history  portion  of  the \nemergency room record, which reads in pertinent part: \nTony  L.  Langston,  54  yo  M,  presents  to  ED  for  evaluation  after  a  fall.  \nPatient  states  he  was  operating  a  forklift  for  work  at  around  7PM  today \nwhen the forklift had suddenly fallen through the flooring.  Patient reports \nhe had to climb out of the hole after the incident.  Now reporting of left \nflank, left back, and left chest pain.  Patient states he did not immediately \nfollow up after incident reporting he had gone home. \n \n(Emphasis  added)    Attempting  to  explain  the  discrepancy  between  his  testimony  and \nthe  highlighted  language,  Claimant  stated  that  it  was  his  brother—not he—who  told \ntreating personnel that he had to climb out of the hole.  When questioned further by the \nCommission,  he  added  that  the  timeline  in  the  above  report  is  incorrect  as  well;  the \nalleged  trailer  incident  happened  around  7:30  to  8:00  p.m.    As  a result  of  his  visit  to \nBaptist   Health,   he   was   administered   a   Fentanyl   injection   and   prescribed   three \nmedications.  He could recall the names of two:  Naproxen and Hydrocodone.  Claimant \ndid not remember whether, as reflected in the report of his visit, he was also prescribed \nCyclobenzaprine  (Fentanyl) “as  needed  for  [m]uscle  spasms.”  Later  in  his  testimony, \nhowever,    he    related    that    he    remembered    being    given    a    prescription    for \nCyclobenzaprine. \n Called by Respondents, William Castner testified that he has been employed for \nRespondent  L’Oreal  for  two  and  one-half  years  as  the  manager  in  the  Environmental, \nHealth and Safety department.  Castner stated that he is familiar with Claimant and with \nthe  incident  at  issue.    Claimant  had  been  operating  a  forklift,  which  he  termed “a  sit-\ndown counterbalance lift truck.”  He added: \n\nLANGSTON – H304075 \n10 \n \nTony,  Mr.  Langston,  was  unloading  a  trailer.    We  use  Davis  Trailers  to \ntrans—transport  pallets  from  Davis  Storage  Warehouse  in  town  over  to \nour  facility,  and  he  was  unloading  a  Davis  trailer.    He  was  unloading \npallets, a  double  stack,  and  as he  started  to back  out of  the  trailer, there \nwas  a  weak  spot  in  the  trailer  and  it  created  a  divot,  and  he—the  truck \nstopped.  He got off the truck and called for assistance. \n \n Castner  viewed  the  video  footage—which  was  played  in  open  court—that  is \ncontained on Respondents’ Exhibit 2.  He confirmed that it depicts the incident at issue, \ndescribed above.  The L’Oreal plant has numerous video cameras mounted throughout \nthe facility.  The footage, 241 seconds in length, was recorded and played in real time.  \nWhile  the  footage  does  not  bear  a  time  or  date  stamp,  Castner  testified  that  he \nrequested  that the plant’s  security  team furnish  him  with  footage from  the  camera that \nviewed the trailer in question at the time in question—and that this is what he was given.  \nIt  depicts  Claimant  driving  the  forklift  into  the  trailer  on  the  left  side  of  the screen  (two \ndock  doors  are  shown).    At  1:06,  he  enters  the  trailer  (it  is  at  that  point  that  the  forks \ncross  the  boundary  between  the  dock  and  the  trailer).    The  floor  of  the  trailer  is  wood \nplanking with a metal seam that is in the center and runs from the rear toward the front.  \nThere  is  a  square-shaped  portion  of  the  flooring  that  is  noticeably  lighter  in  color  than \nthe surrounding wood—indicating that it is newer and served as a patch or replacement.  \nThe  forklift,  which  had  disappeared  from  view  as  it  ventured  further  into  the  trailer, \nreappears  at  1:36,  being  driven  in  reverse  by  Claimant.  At  1:44,  the  vehicle  stops \nbacking up; it appears to be stuck.  Slight movement back and forth (as opposed to side \nto side) is visible, indicating that the operator is trying to extricate the forklift.  Finally, at \n2:00,  the  forklift  returns  to  the  front  of  the  trailer,  away  from  the  rear  door.   When  this \n\nLANGSTON – H304075 \n11 \n \noccurs, a dark spot in the lighter portion of the  wood comes into view, just to the left of \nthe metal seam.  The movement of the left rear tire of the forklift exposes this spot; and \nthe footage makes apparent that it was this tire that created the spot.  Per Castner, this \nis a “divot.”  Only a very small portion of the left rear of the vehicle remains in view.  At \n3:17,  Claimant reappears,  apparently  exiting  the  forklift.    He  is  dragging  his  left  foot \nslightly.  However, Claimant does not seem to be in any apparent discomfort. \n The following exchange occurred: \nQ. Now,  you  were  saying  to  me  [Respondents’  counsel]  before  the \nhearing began, Mr. Castner, that there is a device on the equipment \nthat  notifies  the  operator  and  also  sends  an  email  where  there’s \nany type of traumatic—or any type of impact? \n \nA. Yes.    I—I  wouldn’t  say  traumatic,  but  any  type  of—it  prevents \ndamage  to  the  facility  or  damage  to  anything.    It  notifies  us  when \nthe forklift has an incident, if it hits a guardrail, if it hits racking, if it \nhas any type of impact. \n \nQ. Would  that  include an  impact  that  would  be caused  by  the  vehicle \ngoing down into a hole? \n \nA. Horizontal and vertical, yes. \n \nQ. Yes.  And what—what would the alarm sound like? \n \nA. So it’s audible and visual. \n \nQ. All right.  And would that alarm also be obvious to others who were \nnot on the vehicle? \n \nA. Yes. \n \nQ. And how is that—how is that information conveyed? \n \nA. To—to the  leadership team or  the management team,  it  comes by \nemail and then focused in here, it’s again audible and visual to say, \n“Hey, this forklift hit something.” \n\nLANGSTON – H304075 \n12 \n \n \nQ. All right.  Do you have—does the company have record of whether \nor  not  on  this  day  at  this  time  there  was  any  type  of  email \nsuggesting that the alarm system was alerted to an impact? \n \nA.  There was not. \n \n According  to  Castner,  he  was  informed  by  other  personnel  that  Claimant  had \nbeen  involved  in an  incident.    He  called  Claimant  to  find  out  how he  was  feeling.    Per \nCastner,  Claimant  told  him “that  he  was  fine  and  he  was  not  injured  and  that  he  just \nwanted to go home and rest.”  Claimant was given Castner’s number, told to call him if \nhe had any issues, and was  informed that Castner would get him  to see a physician if \nClaimant felt he needed treatment.  However, instead of doing this, Claimant went to the \nhospital  that  same  evening  but  neglected  to  inform  Castner  of  this  until  the  next \nafternoon. \n Shown  Respondents’  Exhibit  3,  Castner  identified  it  as  one  of  the  photographs \ntaken by Claimant’s supervisor, Kelly, at Castner’s request of the scene of the incident \nat issue.  Castner stated that the photograph depicts the right rear tire of the forklift near \nthe “divot.”  His  understanding  from  Kelly  is  that  the  photograph  was  taken  before  the \nforklift was backed out of the trailer.  He elaborated: \nSo they moved it [the forklift] out of the divot, and before they were going \nto back out of the trailer, they got the photo, and that’s why that’s the right \nside of the forklift and not the left side that was involved in the divot. \n \n In  reference  to  the  foot-dragging  by  Claimant  described  above  in  the  security \nfootage, the following exchanges took place: \n\nLANGSTON – H304075 \n13 \n \nQ. When  Mr.  Langston,  on  this  video,  walked  out  of  the  trailer—you \nsaw  that  on  the  video—did  you  see  anything  unusual  about  his \nwalk or his gait? \n \nA. Yeah.  Tony has a—Mr. Langston has a—just an unusual gait when \nhe walks, just—you know, just the normal way that he walked, you \nknow.” \n \nQ. From  the  standpoint  of  what  you  knew  about  the  way  he  walked \nand  the  way  he  was  walking  in  that  video,  did  you  see  anything \ndifferent? \n \nA. Nothing  unusual,  no  .  .  .  [s]o  Tony—I’ve  never  had  an  issue  with \nTony.    Tony  was  actually  one  of  our  first  responders,  so  I  knew \nTony pretty well and I would see Tony almost on a daily basis . . . \n[s]o  I  was  very  familiar  with  Tony,  and  we’d  say  hi,  you  know, \nperiodically, and I would see him as he comes in for second shift as \nhe would walk in the facility and just—he just had like a—I wouldn’t \ncall  it  a  limp  but  he  just—I  don’t  know—it  was  just  a  different  gait, \nlike a different walk, so. \n \n The  medical  records  in  evidence  show  that  approximately  eight  months  before \nthe forklift/trailer incident, on August 4, 2022, Claimant presented to Dr. Shiva Nallur at \nCHI  St.  Vincent  with,  inter  alia,  upper  back  pain  that  had  begun  one  to  two  weeks \nbefore.    He  related  to  Nallur  that  he  drives  a  forklift.    The  doctor  administered a  Depo \nMedrol injection and prescribed both Diclofenac and Cyclobenzaprine. \n On the day of the forklift/trailer incident, April 13, 2023, Claimant presented to the \nemergency department of Baptist Health.  The report reads in pertinent part: \nTony  L.  Langston,  54  yo  M,  presents  to  ED  for  evaluation  after  a  fall.  \nPatient  states  he  was  operating  a  forklift  for  work  at  around  7PM  today \nwhen the forklift had suddenly fallen through the flooring.  Patient reports \nhe  had  to  climb  out  of  the  hole  after  [the]  incident.  Now  reporting  of \nleft  flank,  left  back,  and  left  chest  pain.    Patient  states  he  did  not \nimmediately  follow  up  after  [the]  incident  reporting  he  had  gone  home.  \nPatient does not report LOC and has no other complaints at this time. \n \n\nLANGSTON – H304075 \n14 \n \nThe history is provided by the patient. \n \n. . . \n \nThe  accident  occurred  1  to  2  hours  ago.    Fall  occurred:  Was  operating \nforklift  when  forklift  had  fallen  through  flooring.    Associated  symptoms \ninclude abdominal pain. \n \n. . . \n \n54-year-old male that presents [to the] emergency department after a fall.  \nPatient was reportedly . . . on a forklift when the floor gave way. \n \n(Emphasis added)  Dr. Komi Vovor-Dassu, the attending physician, examined Claimant \nand did not note the presence of any objective findings of an injury.  A CT scan of the \nabdomen  and  pelvis  and  x-rays  of  the  hip  and  chest  were  negative.    Along with \nHydrocodone and Naproxen, Claimant was prescribed Cyclobenzaprine “as needed for \n[m]uscle spasms . . . .” \n Claimant  returned  to  CHI  St.  Vincent  on  April  19,  2023,  and  per  the report \nthereof, “present[ed]  to  [the]  clinic  for  acute  lower  back  pain.   He  reports  he  fell  at \nwork  on  Thursday  and  injured  his  back  .  .  .  .”  (Emphasis  added)    A  Toradol  injection \nwas given to him.  No objective findings from the examination are listed in the notes by \nKatia  Ryburn,  APRN.   In a  follow-up  visit  to the  clinic on April  27, 2023, Claimant  was \nstill representing that he was suffering from lower back pain as a result of “a fall while at \nwork.”  Again,  the  examination  yielded  no  objective  findings  of  an  injury.    He  was \nprescribed  Hydrocodone.    Claimant  returned  to  the  clinic  yet  again  on  May  30,  2023, \nand saw Dr. Kalyan Kancherla.  As before, the record is devoid of objective findings of \nan injury of any type. \n\nLANGSTON – H304075 \n15 \n \n The  compensability element  “arising  out  of  .  .  .  [the]  employment” relates  to the \ncausal connection between the claimant’s injury and his or her employment.  City of El \nDorado  v. Sartor,  21 Ark.  App. 143, 729  S.W.2d  430  (1987).   An injury  arises out  of  a \nclaimant’s  employment  “when  a  causal  connection  between  work  conditions  and  the \ninjury is apparent to the rational mind.”  Id. \n In  this  case,  assuming  only  for  the  sake  of  argument  that  Claimant  has \nestablished  objective  and  measurable  findings  of  a  lower  back  injury  (see  Estridge  v. \nWaste  Mgmt.,  343  Ark.  276,  33  S.W.3d  167  (prescription  of  Flexeril “as  needed  for \nmuscle  spasm”  tantamount  to  objective  finding  of  muscle  spasm); Melius  v.  Chapel \nRidge  Nursing  Ctr.,  2021  Ark.  App.  61,  618  S.W.3d  410),  he  has  not  shown  a  causal \nconnection between such a finding and what occurred on April 13, 2023, in the trailer at \nthe L’Oreal plant.  The account related to treating personnel that evening at the Baptist \nHealth emergency department—that Claimant’s forklift fell into a hole in the trailer floor \nso  deep  that  he  had  to  climb  out  of  it—was,  as  he  admitted  on  the  witness  stand, \nuntrue.    While  Claimant  attributed  this  inaccuracy  to  his  brother  and  not  him  speaking \nwith treating personnel on that occasion, the medical records do not support this.  The \nrecord  is  unambiguous  that  it  was  Claimant  who  furnished  this  history.   Furthermore, \nthis would not explain Claimant’s later history that he relayed to CHI St. Vincent:  that he \nfell. \n The discrepancies do not end there.  Claimant’s testimony concerning the forklift \nincident was that the left tire suddenly fell through the floor, and that this jarring motion \ncaused his injury.  The video footage of the incident, described in detail above, does not \n\nLANGSTON – H304075 \n16 \n \nsupport  this  version,  either.    What  is  clear  is  that,  as  Castner  accurately  described, a \n“divot” or indentation appeared in the trailer floor as that portion of it buckled under the \nweight  of  the  forklift.    But  the  wheel  hardly “fell  through”;  rather,  as  the  video  shows, \nClaimant was able after a few tries to drive the vehicle out of the indentation.  Additional \nsupport for the finding that any impact of the floor giving way was not unduly jarring is \nthe  fact  that,  as  Castner  credibly  testified,  the  impact  alarm  on  the  forklift  was  not \ntriggered in this incident.  Finally, in contrast to his testimony, the video evidence does \nnot depict him as leaving the trailer in any perceptible amount of distress. \n In  sum,  Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he \nsuffered a compensable lower back injury. \nB. Medical Treatment \n Introduction.   Claimant  has  alleged  that  he  is  entitled  to  reasonable  and \nnecessary medical treatment in connection with his alleged lower back injury. \n Standards.    Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012) states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \n\nLANGSTON – H304075 \n17 \n \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.      Because   Claimant   has   not   established   that   he   sustained   a \ncompensable lower back injury, he has not met his burden of proving his entitlement to \nreasonable and necessary treatment of it. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":31733,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H304075 TONY LEE LANGSTON, EMPLOYEE CLAIMANT L’OREAL USA, INC., EMPLOYER RESPONDENT XL INS. AMER., CARRIER RESPONDENT OPINION FILED FEBRUARY 22, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on November 30, 2023, in Little Rock, Pulaski...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["back","hip"],"fetchedAt":"2026-05-19T22:57:37.329Z"},{"id":"alj-H303132-2024-02-21","awccNumber":"H303132","decisionDate":"2024-02-21","decisionYear":2024,"opinionType":"alj","claimantName":"Mikel Miller","employerName":"Spurlock, Inc","title":"MILLER VS. SPURLOCK, INC AWCC# H303132 FEBRUARY 21, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MILLER_MIKEL_H303132_20240221.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MILLER_MIKEL_H303132_20240221.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.  H303132 \n \nMIKEL MILLER, EMPLOYEE                    CLAIMANT \n \nvs. \n \nSPURLOCK, INC,  EMPLOYER                 RESPONDENT  \n \nBITCO GENERAL INSURANCE CORPORATION, \nINSURANCE CARRIER/TPA                        RESPONDENT \n        \nOPINION FILED FEBRUARY 21, 2024 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 9\nTH\n day of January 2024, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant is represented by Mr. Gregory R. Giles, Attorney-at-Law, Texarkana, Arkansas. \n \nRespondents are represented by Mr. Michael E. Ryburn, Attorney-at-Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  conducted  on  the  9\nth\n  day  of  January,  2024,  to  determine  the  issues of \ncompensability for an alleged work-related injury to the claimant’s left wrist; medical benefits and \ntreatment;  temporary  total  disability;  and  attorney  fees,  with  permanent  partial  disability \nreserved.  The parties stipulated at the time of the hearing that the claimant earned an average \nweekly  wage  sufficient  for  a  TTD/PPD  rate  of  $380.00/$285.00,  respectively.    A  copy  of  the \nPrehearing  Order  was  marked  “Commission  Exhibit  1”  and  made  part  of  the  record  without \nobjection.    The  Order  provided  that  the  parties  stipulated  that  the  Arkansas  Workers’ \nCompensation Commission has jurisdiction of the within claim and that an employer/employee \nrelationship existed on May 10, 2023, the date of the claimed injury in question.  There was no \nobjection to these stipulations and the Prehearing Order was admitted.   \n\nMILLER – H303132 \n \n2 \n \n The  claimant  contended  he  sustained  a  compensable  injury  to  his  left  wrist while \nperforming  employment  services  for  the  respondent  employer  and  that  he was  not  under  the \ninfluence of any illegal substance which caused or contributed to the accident.  \n The  respondents  contended  compensability  for  any  injury  the  claimant  may  have \nsustained  was  barred  under  Ark.  Code  Ann.  §11-9-102(B)(iv),  because  the  accident  was \nsubstantially occasioned by the use of illegal drugs.    \n The claimant’s and respondents’ contentions are all set out in their respective responses \nto the prehearing questionnaire and made a part of the record without objection.  The witnesses \nconsisted  of  Mikel  Miller,  the  claimant,  and  Mason  Garner,  who  was  still  employed  by  the \nrespondents at the time of the hearing and also a friend of the claimant.  From a review of the \nrecord as a whole, to include medical reports and other matters properly before the Commission, \nand having  had an opportunity  to  observe  the  testimony  and demeanor  of  the  witnesses,  the \nfollowing findings of fact and conclusions of law are made in accordance with Ark. Code Ann. \n§11-9-704. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.  That  an  employer/employee  relationship  existed  on  May  10, 2023,  the  date  of  the \nclaimed injury.  At the time, the claimant earned an average weekly wage sufficient \nfor a TTD/PPD rate of $380.00/$285.00, respectively, per week. \n \n3.  That  the  claimant has  satisfied  the  burden  of  proof,  by  a  preponderance  of  the \nevidence,  to  overcome  the  rebuttable  presumption  of  Ark.  Code Ann.  §11-9-\n102(4)(B)(iv) and has proven he suffered a compensable left wrist injury on May 10, \n2023.  Additionally, the claimant has satisfied the burden of proof that he is entitled to \nreasonable   and   necessary   medical   treatment,   including   the   reasonable   and \nnecessary medical treatment that has already occurred, plus the unreimbursed travel \nexpenses that were introduced into the record. \n \n\nMILLER – H303132 \n \n3 \n \n4.  That  the  claimant  has  satisfied  the  burden  of  proof,  by  a  preponderance of  the \nevidence, that he is entitled to TTD from the day following his injury through the date \nof July 9, 2023. \n \n5.  The claimant is entitled to attorney’s fees pursuant to Ark. Code Ann. §11-9-715.  This \nAward shall bear interest at the legal rate pursuant to Ark. Code Ann. § 11-9-809. \n \n6.  That all other issues are reserved. \n \n7.  If not already paid, the respondents are ordered to pay for the cost of the transcript \nforthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The  Prehearing  Order,  along  with  the  prehearing  questionnaires  of  the  parties  were \nadmitted    into  the  record  without  objection.    The  claimant  submitted one  exhibit  consisting  of \nfifty-one (51) pages, of medical and documentary evidence, that was admitted without objection.  \nThe respondents submitted two (2) exhibits with exhibit one consisting of a drug testing form, \nalong with the results; and exhibit two consisting of case law and both were admitted without \nobjection. \n The first witness to testify was the claimant, Mikel Miller.  He testified he had dropped out \nof the eleventh grade and attempted to obtain his GED and then went on to work construction.  \nHe felt that he went to work for the respondent around October of 2022, as a general-labor hand.  \nThe respondent employer performed a little bit of pipelining, plumbing, electrical, construction, \nwater irrigation, and some demolition.  On May 10, 2023, his first day at the job site in Cabot, \nthey were demolishing an old strip mall that had a couple of stores in it.  He stated that he would \ndrive from Beebe, where he lived, to Searcy and  they would meet at the shop every morning \nand then leave from the shop around seven and go where instructed.  He rode with Larry Walker \nin his personal vehicle from the Searcy shop to the job site in Cabot where there were four (4) \nworkers  which  included  Larry,  Mason,  Tim,  and  himself.    He  thought  that  Mason  rode  with \n\nMILLER – H303132 \n \n4 \n \nSammy who was the foreman and that they started to work sometime between 7:30 to 8:00. (Tr. \n7-  10) \n They were told to cut down a canvas on the front of the building to tear down the metal \nframing that was holding up the canvas.  To do this, claimant was instructed to get one piece of \nmetal off the slanted metal roof, which was about 13 to 15 feet up, and Larry and the claimant \nused a ladder to get up there.  A lot of the screws were missing off the roof and some spots were \nkind  of  rusty.    An  impact  gun  was  used  to  unscrew  the  metal  and  when he  picked  it  up,  the \nclaimant guessed that it made the metal where he was standing weak, and it folded and he fell \nthrough, falling on debris that had been tore down before. (Tr. 11-14)  He went on to state that \nhe nearly fell on top of Mason, and that after the fall, he was in pain in his left wrist that swelled \nup like a balloon, and also his back.   An ambulance was called which arrived in 25 to 30 minutes.   \nHe was drug tested upon arriving at the hospital and admitted he was concerned about \nthe test because he had in fact smoked marijuana two (2) weeks before at his cousin’s wedding, \nwhere  he  had  taken  a  couple  of  puffs  or  hits,  and  it  consisted  of  a  half  gram  to  a  gram.    He \nadmitted to using marijuana, “probably twice every two months” and further stated that it made \nhim feel calm, relaxed, and that it gets rid of his anxiety.  He denied he was under the influence \nof  marijuana  at  the  time  of  the  work-related  accident  and  denied  using  marijuana  at  anytime \nsince the wedding.  He was not aware of a drug policy at his employer.  He also testified that he \ndid  not  believe  he  was  under  the  influence  of  marijuana  at  the  time  of  the  accident.    No  one \nquestioned his state of mind or asked him if he was under the influence of anything the morning \nof  the  accident  and  there  was  no  discussion  about  who  was  at  fault  or  what  happened  that \ncaused the fall.  He agreed with the hospital medical records which indicated he was oriented to \nperson, place, and time.  He received pain medicine, IV’s, and a splint while at the hospital, and \n\nMILLER – H303132 \n \n5 \n \nwas taken off work at that time.  He also testified that he was left hand dominate.  He was advised \nto  see  Dr.  Ethan  Shock  and  saw  him  on  May  11.    Dr.  Schock  gave  the  claimant  some  pain \nmedications, took him off work, and set him up for surgery. His first post-op visit after the surgery \nwas June 7.  The cast was removed on a follow-up visit on July 5, where the claimant received \na wrist splint. (Tr. 15-21)  After about five or six days, the claimant started looking for work and \nfound employment around July 10 at Hurst Audio and ATV in Lonoke, where he worked as a \nsmall-engine technician.  He went on to state that his wrist has gradually gotten stronger and \nbetter.  He is no longer required to go to a physical therapy location but is currently doing the \nexercises at home. (Tr. 22-24) \nThe claimant testified he felt that the marijuana had nothing to do with his injury, he was \nthere to do his job, was instructed to get on the roof, and he did what he was told to do.  He also \nadmitted knowing his witness Mason Garner outside of work, lived with him at the time of the \naccident, and continued to live with him. (Tr. 26-27) \nUnder cross-examination, the claimant admitted smoking marijuana two (2) weeks prior \nto the accident and further admitted that he was not disputing anything about the drug test.  He \ndenied ever having meetings about the use of drugs on the job and was not aware of a policy in \nregard to drugs by his employer.  He agreed that as a reasonable individual, he knew that it was \nnot a good thing to test positive for drugs after an accident.  He also stated he accepted the test \nwhich occurred at the time of the accident while at the hospital.  He also admitted Medicaid had \npaid all of his bills. (Tr. 29-30)  He also admitted he was aware that if you removed the screws \nfrom one side of a metal roof panel, it would affect another panel because he had worked on \nroofs before.  (Tr. 32)  The claimant also admitted that the witness that he had called was his \nfriend (Tr. 34) \n\nMILLER – H303132 \n \n6 \n \nMr. Mason Garner was then called to testify.  He stated he was a high school graduate, \nwas  currently  employed  by  the  respondent,  and  was  on  the  job  site  on  May  10,  2023.    The \nsupervisor on the job site was Sammy Thacker. He saw the claimant in the middle of his fall and \n“turned around and he was on the floor” landing on insulation and a debris pile. He thought the \nclaimant probably fell fifteen to seventeen feet. (Tr. 38-40)  Mr. Garner thought that he had been \nwith the claimant all day until he got on the roof.  He had not noticed anything unusual about the \nclaimant.  He heard the supervisor say, “I need you to go up there and start taking off the roof.”  \nHe also denied that the claimant was under the influence of marijuana at the time of the accident, \nbased upon his actions and demeanor.  (Tr. 41-42)  He also admitted signing a written statement \nthat provided his coworker was not under the influence of any illegal substance of any kind on \nMay 10, 2023. (Tr. 44)  “He - - he - - Like I said, he acted normal as me and you are right now, \nyou know.  Didn’t seem like he was under any influence of anything, acted normal as anyone \nshould be.” (Tr. 44) \nUnder cross-examination, Mr. Garner admitted he had never seen the claimant under the \ninfluence of drugs.  He also admitted he was not trained to detect if a person was impaired by \ndrugs, and had little medical knowledge.  He also admitted using marijuana before he got out of \nhigh school. (Tr. 45-46)  \n The claimant’s exhibit one consisted of the signed statement which was referred to during \nthe  testimony  of  Mason  Miller.    The  exhibit  also  consisted  of  medical  records.  The  records \nprovided that the claimant was taken by Metro EMS Ambulance on May 10, 2023, from Cabot \nto the ER at Baptist Medical Center in North Little Rock, due to a job-related injury. (Cl.Ex. 1, \nPP. 2-4)   The ER report provided that the date of the injury was May 10, 2023, when the claimant \nfell  through  a  roof  while  working,  falling  approximately  thirteen  (13)  feet.    The  assessment \n\nMILLER – H303132 \n \n7 \n \nprovided that the claimant was in pain, was alert and cooperative, with a brisk pupil reaction and \npupils of equal size.  Splinting of the left arm occurred, and the claimant’s departure condition \nwas good.  The final diagnosis was a closed intra-articular fracture of the distal end of the left \nradius.  Hydrocodone and acetaminophen were prescribed.  The claimant was advised to follow \nup  with  Dr.  Ethan  Schock.  (Cl.Ex.1,  PP.  5-26)  The  medical  records  also  provided  that  the \nclaimant  was  administered  a  drug  test  at  the  time  of  the  hospital  visit  and  tested  positive  for \nmarijuana metabolites. (Cl.Ex.1, PP. 27-28)   \nThe claimant first presented to Dr. Ethan Schock on May 11, 2023.  The report provided \nthe claimant was alert, oriented, and provided appropriate answers to questions.  Unfortunately, \nthe  claimant  was  left-hand  dominant  and  the  x-rays  showed  he  was  suffering  from  left  distal \nradius fracture with loss of radial length and tilt.  The report went on to provide  the claimant was \nto  remain  off  of  work  until  his  first  post-operative  visit.  (Cl.Ex.1,  PP. 29-32)    Surgery  was \nperformed on the claimant’s left wrist on May 22, 2023.  The report provided that the claimant \nshould  return  for  a  follow-up  in  approximately  one  week.  (Cl.Ex.1,    PP. 33-41)  The  claimant \nreturned to Dr. Schock on June 7, 2023, and a short arm cast was applied and the report further \nprovided  the  claimant  should  return  in  three weeks.  (Cl.  Ex.  1,  P. 42,  43)    The  claimant then \nagain returned to Dr. Schock on July 5, 2023, and rehab exercise was instructed.   A cock-up \nwrist splint was applied and the claimant was instructed to wear this at all times except while \nworking on range of motion type activities. (Cl. Ex.1, PP. 44-45)  The claimant then returned to \nDr. Schock for his final visit on August 16, 2023.  The report provided that he lacked about 5 \ndegrees of full flexion about the wrist and was then released. (Cl.Ex.1, PP. 46-47)  \nThe claimant also submitted a record for mileage in regard to his treatment that resulted \nin  a  total  of  $232.44  for  travel.    In  addition  the  ambulance  bill  was  submitted  for  the  sum  of \n\nMILLER – H303132 \n \n8 \n \n$1,661.00,  a  bill  for  $595.00  due  to  Baptist  Health  for  anesthesia/endoscopy,  and  bill  for \n$3,024.00 due to OrthoArkansas in regard to the claimant’s left surgery. (Cl. Ex.1, PP. 48-51) \nThe respondents also submitted the drug test with the results, as well as case law.  (Resp. \nEx.1, PP.1-3)    \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nIn regard to the primary issue of compensability, the claimant has the burden of proving, \nby a preponderance of the evidence, that he is entitled to compensation benefits for the injury of \nhis  left  wrist under  the  Arkansas  Workers’  Compensation  Law.    In  determining  whether  the \nclaimant has sustained his burden of proof, the Commission shall weigh the evidence impartially, \nwithout giving the benefit of the doubt to either party.  Ark. Code Ann. § 11-9-704.  Wade v. Mr. \nCavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989).  Further, the Commission has the duty \nto  translate  evidence  on  all  issues  before  it  into  findings  of  fact.   Weldon  v.  Pierce  Brothers \nConstruction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). \nFrom  the  testimony  and  the  medical  reports,  there  is  little to  no  disagreement  that  the \nclaimant fell thirteen plus (13+)  feet from a roof which partially collapsed when he was instructed \nto get on it by his supervisor during a demolition project.  He suffered injuries to his left wrist, \nwhich required surgery.   \nA compensable injury must be established by medical evidence supported by objective \nfindings and medical opinions addressing compensability and must be stated within a degree of \nmedical  certainty. Smith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).  \nSpeculation and conjecture cannot substitute for credible evidence.  Liaromatis v. Baxter County \nRegional  Hospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).    More  specifically,  to  prove  a \ncompensable injury, the claimant must establish,  by a preponderance of the evidence: (1) an \n\nMILLER – H303132 \n \n9 \n \ninjury  arising  out  of  and  in  the  course  of  employment;  (2)  that  the  injury  caused  internal  or \nexternal harm to the body which required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings, as defined in Ark. Code Ann. §11-9-102(16) \nestablishing the injury; and (4) that the injury was caused by a specific incident and identifiable \nby time and place of occurrence.  If the claimant fails to establish any of the requirements for \nestablishing the compensability of the claim, compensation must be denied.  Mikel v. Engineered \nSpecialty  Plastics,  56  Ark.  App.  126,  938  S.W.2d  876  (1997).  In  the  present  matter,  the \ntestimony of the claimant along with a co-worker who was a friend, as well as the medical records \nfrom  Baptist  Health  in  North  Little  Rock,  and  surgery  records  by  Dr.  Allen  Schock  of  Ortho \nArkansas, satisfy these requirements. \nHowever,  the  ultimate  issue  that  must  be  determined  in  the  present  matter  is  the \napplication of Ark. Code Ann. § 11-9-102(B)(iv), as raised by the respondents.  Ark. Code Ann. \n§11-9-102 provides in pertinent part: \n(B) “Compensable injury” does not include: \n(iv) (a) injury where the accident was substantially occasioned by the use of alcohol, illegal \ndrugs, or prescription drugs used in contravention of physician’s orders. \n \n(b) The presence of alcohol, illegal drugs, or prescription drugs used in contravention of \na physician’s orders shall create a rebuttable presumption that the injury or accident was \nsubstantially occasioned by the use of alcohol, illegal drugs, or prescription drugs used in \ncontravention of physician’s orders. \n \n(c) Every employee is deemed by his or her performance of services to have impliedly \nconsented  to  reasonable  and  responsible  testing  by  properly  trained  medical  or  law \nenforcement personnel for the presence of any of the aforementioned substances in the \nemployee’s body. \n \n(d)    An  employee  shall  not  be  entitled  to  compensation  unless  it  is  proved by  a \npreponderance of the evidence that the alcohol, illegal drugs, or prescription drugs utilized \nin  contravention  of  the  physician’s  order  did  not  substantially  occasion  the  injury  or \naccident.   \n \n\nMILLER – H303132 \n \n10 \n \nArkansas   Code  Annotated   §11-9-102(4)(B)(iv)   governs   the   compensability   of  the \nclaimant’s injury under the facts of this case.  Whether the rebuttable presumption is overcome \nby  the  evidence  is  a  question  of  fact  for  the  Commission  to  determine.   Woodal  v.  Hunnicut \nConstruction,  340  Ark.  377,  12  S.W.3d  630  (2000).  Here,  the  claimant  admitted  to  using \nmarijuana two (2) weeks prior to the accident at a wedding party.  He did not deny that he was \ndrug  tested on the  day  of the  accident  while  at the  hospital and  that  the test  was positive  for \nmarijuana metabolites.  \nIt is noted in Woodall supra, the Arkansas Supreme Court opinion issued by Chief Justice \nDub Arnold, provided in regard to Ark. Code Ann. § 11-9-102(4)(B)(iv), that substantial evidence \nis  such  relevant  evidence  as  a  reasonable  mind  might  support  as  adequate to  support  a \nconclusion.    In Woodall,  the  claimant  admitted  to  smoking  crack  cocaine  the night  before  the \ninjury,  and  the  Arkansas  Supreme  Court  reversed  the  Arkansas  Court  of  Appeals  opinion, \nholding that the claimant had in fact not satisfied the rebuttable presumption as spelled out in \nArk. Code Ann. §11-9-102(4)(B)(iv). \nIn the present matter, the claimant denied being under the influence of marijuana at the \ntime of the accident.  The claimant had driven from his home in Bebee to the respondent’s shop \nin Searcy and then rode with a coworker to the job site in Cabot.  That a claimant’s testimony is \nself-serving  is  not,  for  that  reason  alone,  insufficient  to  support  a  finding in  his  or  her  favor.  \nBrantley  v.  Tyson  Foods,  Inc.,  48  Ark.  App.  27,  31,  887  S.W.  2d  543,  545  (1994).    More \nimportantly,  in the present matter, the claimant’s co-worker and admitted friend, who still was \nemployed by the respondent at the time of the hearing, testified he knew the claimant well and \nthat the claimant did not show by his actions or speech that he was under the influence of illegal \ndrugs, specifically marijuana.  Based upon the claimant’s own testimony, which was unrebutted, \n\nMILLER – H303132 \n \n11 \n \nhe was instructed to get on the roof, and obviously, the job supervisor was not concerned about \nthe claimant’s abilities when he instructed him to crawl on the roof, since other employees were \navailable at the time and there was no comment about his abilities or of any intoxication.  T he \nreport  from  Baptist  Health  in  North  Little  Rock  and  from  EMS  Ambulance  provided that  the \nclaimant  was  alert  and  oriented  with  his  pupils  equal,  round,  and  reactive  to  light.    No  report \nmentioned that the claimant was unresponsive or that he appeared to be intoxicated, an issue \nthat is commonly observed and checked in an emergency room.   \nThe claimant admitted to using marijuana two (2) weeks prior to the work-related accident.  \nMason  Garner,  admittedly  claimant’s  friend  and  with  no  medical  background  but  also  still \nemployed  by  the  respondent  employer  at  the  time  of  the  hearing,  testified and  also  signed  a \nhand-written memo that the claimant was not intoxicated at the time of the injury.  There was no \nrebuttal to this testimony.  Additionally, the ambulance crew and the emergency room personal \nmade no mention of the claimant possibly being intoxicated.  Based upon the above evidence, \nthere is no alternative but to find that the claimant has successfully satisfied the burden of proof \nto  rebut  the  presumption  that  the  work-related  injury  of  April  20,  2020,  was  substantially \noccasioned by the use of illegal drugs.  Consequently, the claimant has satisfied the burden of \nproof, by a preponderance of the evidence, that he suffered a compensable left wrist injury on \nMay 10,  2023,  and is  entitled  to  reasonable  and  necessary  medical  treatment,  including  the \ntreatment that has already occurred, along with reimbursement for the travel admitted into the \nrecord.   \nIn addition, based upon the above finding, the claimant has satisfied the burden of proof \nbeyond a reasonable doubt that he is entitled to TTD from the date following the injury beginning \non May 11, 2023, through July 9, 2023, at the stipulated rate.      \n\nMILLER – H303132 \n \n12 \n \nThe claimant and his attorney are entitled to the appropriate legal fees as spelled out in \nArk. Code Ann. §11-9-715.  \nAfter weighing the evidence impartially, without giving the benefit of the doubt to either \nparty, it is found that the claimant has satisfied his burden of proof that his claim for the injury to \nhis left wrist is compensable, that he is entitled to reasonable and necessary medical including \nthe treatment that has already occurred, reimbursement for the travel submitted, and TTD from \nMay 11, 2023, through July 9, 2023.  The claimant is also entitled to attorney fees as spelled out \nby the Arkansas Workers’ Compensation Act.  This Award shall bear interest at the legal rate \npursuant to Ark. Code Ann. § 11-9-809.  If not already paid, the respondents are ordered to pay \nthe cost of the transcript forthwith.  All other issues are reserved. \nIT IS SO ORDERED. \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":24343,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303132 MIKEL MILLER, EMPLOYEE CLAIMANT vs. SPURLOCK, INC, EMPLOYER RESPONDENT BITCO GENERAL INSURANCE CORPORATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 21, 2024 Hearing before Administrative Law Judge, James D. Kennedy, on the 9 TH day o...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["wrist","back","fracture"],"fetchedAt":"2026-05-19T22:57:31.092Z"},{"id":"full_commission-H104834-2024-02-14","awccNumber":"H104834","decisionDate":"2024-02-14","decisionYear":2024,"opinionType":"full_commission","claimantName":"Kelli Hellums","employerName":"Area Agency On Aging Western Arkansas","title":"HELLUMS VS. AREA AGENCY ON AGING WESTERN ARKANSAS AWCC# H104834 FEBRUARY 14, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Hellums_Kelli_H104834_20240214.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Hellums_Kelli_H104834_20240214.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H104834 \n \nKELLI S. HELLUMS, \nEMPLOYEE \n \nCLAIMANT \nAREA AGENCY ON AGING WESTERN \nARKANSAS, EMPLOYER \n \nRESPONDENT \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED FEBRUARY 14, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MATTHEW J. KETCHAM, \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nApril 6, 2023.  The administrative law judge found that the claimant timely \nfiled a Form AR-C.  After reviewing the entire record de novo, the Full \nCommission affirms the administrative law judge’s opinion.   \nI.  HISTORY \n The parties have stipulated that the claimant “sustained a \ncompensable injury to her lower back” on August 6, 2020.  The parties \nstipulated that the claim “was accepted as a medical-only claim.”  It was \nstipulated that “the parties reached a settlement when Claimant was \n\nHELLUMS - H104834  2\n  \n \n \nunrepresented, and paperwork was submitted to the Commission on June \n10, 2021.  Matt Ketcham notified the adjuster of his representation on June \n11, 2021 and later notified the Commission of his appearance on October \n14, 2021.  A Joint Petition hearing never took place, and the file was \nreturned to general files on January 26, 2022.”   \nThe claimant signed a Form AR-C, CLAIM FOR COMPENSATION, \ndated August 8, 2022.  The ACCIDENT INFORMATION section of the Form \nAR-2 indicated that the Date of Accident was August 6, 2020, “Claimant \nwas at a client’s house and went to put shoes on the client and felt an \nimmediate immense pain in the lumbar spine, mainly on the left side.”  The \nCLAIM INFORMATION section of the Form AR-C indicated that the \nclaimant claimed “initial” benefits and “additional” benefits.  The “additional” \nbenefits included “Additional Temporary Total,” “Additional Temporary \nPartial Disability,” “Additional Permanent Partial,” “Additional Medical \nExpenses,” “Rehabilitation,” “Attorney Fees,” and “Other.” \nThe parties have stipulated that the claimant “filed a Form C with the \nCommission on August 8, 2022, and no previous filings were made before \nthat date.”   \nThe parties stipulated, “Claimant’s counsel was notified by letter \ndated August 8, 2022 that the adjuster was closing her file and was taking \nthe position that the statute of limitations had run.”     \n\nHELLUMS - H104834  3\n  \n \n \nAn administrative law judge filed an opinion on April 6, 2023.  The \nadministrative law judge found: \n1.  The stipulations submitted by the parties are hereby        \naccepted as fact. \n2.  The Form C filed by claimant was timely filed.   \n3.  There is no binding contract to resolve this matter by joint \npetition.   \n \nNeither party appeals the administrative law judge’s finding with \nregard to whether there is a binding contract to resolve the matter by joint \npetition.  The respondents appeal the administrative law judge’s finding that \nthe claimant timely filed the “Form C.”   \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-702(Repl. 2012) provides, in pertinent part: \n  (b)  TIME FOR FILING ADDITIONAL COMPENSATION. \n(1)  In cases in which any compensation, including disability or \nmedical, has been paid on account of injury, a claim for \nadditional compensation shall be barred unless filed with the \ncommission within one (1) year from the date of the last \npayment of compensation or two (2) years from the date of \nthe injury, whichever is greater.   \n \n The burden of filing a claim for additional benefits within the statute \nof limitations is upon the claimant.  St. John v. Arkansas Lime Co., 8 Ark. \nApp. 278, 651 S.W.2d 104 (1983).   \n In the present matter, the parties stipulated that the claimant \nsustained a compensable injury on August 6, 2020.  The respondents state \nthat the last medical benefits were paid in May 2021.  Therefore the \n\nHELLUMS - H104834  4\n  \n \n \n“greater” filing period enumerated in the applicable statute of limitations \nwould be August 6, 2022.  However, August 6, 2022 fell on a Saturday, on \nwhich date Arkansas State offices were closed for business and the Clerk \nof the Commission was not available for filing a claim.  The parties \nstipulated that the claimant filed a Form AR-C, claim for additional \ncompensation, on August 8, 2022.  August 8, 2022 fell on a Monday, the \nnext day Arkansas State offices were open for business following August 6, \n2022, and on which date the Clerk of the Commission was available for \nfiling a claim.      \n The Full Commission finds that the claimant filed a claim for \nadditional compensation within the two-year period set forth in Ark. Code \nAnn. §11-9-702(b)(1)(Repl. 2012).  See Parrish Esso Service Center v. \nAdams, 237 Ark. 560, 374 S.W.2d 468 (560); Ark. Rules of Civil Procedure, \nRule 6(a)(2023).   \n The Full Commission therefore affirms the administrative law judge’s \nfinding, “2.  The Form C filed by claimant was timely filed.”   \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":5477,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H104834 KELLI S. HELLUMS, EMPLOYEE CLAIMANT AREA AGENCY ON AGING WESTERN ARKANSAS, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 14, 2024","outcome":"affirmed","outcomeKeywords":["affirmed:1"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T22:29:45.952Z"},{"id":"alj-H301493-2024-02-14","awccNumber":"H301493","decisionDate":"2024-02-14","decisionYear":2024,"opinionType":"alj","claimantName":"Janice Casey","employerName":"Conway Regional Medical Center","title":"CASEY VS. CONWAY REGIONAL MEDICAL CENTER AWCC# H301493 FEBRUARY 14, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/CASEY_JANICE_H301493_20240214.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CASEY_JANICE_H301493_20240214.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H301493 \n \nJANICE CASEY, Employee                                                                            CLAIMANT \n \nCONWAY REGIONAL MEDICAL CENTER, Employer                            RESPONDENT                         \n \nRISK MANAGEMENT RESOURCES, Carrier                                          RESPONDENT                        \n \n \n \n OPINION FILED FEBRUARY 14, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   GREGORY   K.   STEWART   in \nRussellville, Pope County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents  represented  by  CAROL  LOCKARD  WORLEY,  Attorney,  Little  Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  January  18,  2024,  the  above  captioned  claim  came  on  for  hearing at \nRussellville, Arkansas.  A pre-hearing conference was conducted on October 25, 2023, \nand a pre-hearing order was filed on that same date.  A copy of the pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The  employee/employer/carrier  relationship  existed  among  the  parties  on \nFebruary 21, 2023. \n 3.   The claimant was earning sufficient wages to entitle her to compensation at \n\nCasey – H301493 \n \n2 \n \nthe maximum rates. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injury to claimant’s head and brain on February 21, 2023. \n2.    Temporary total disability benefits from February 22, 2023 through a date yet \nto be determined. \n3.      Attorney’s fee. \nThe  claimant  contends  that as a  result of  her  fall  which occurred  while she  was \nperforming  employment  services  she  sustained  injury  to  her  head  and  brain.   The \nclaimant contends that since the cause of the fall is unexplained, the resulting injuries are \ncompensable.    The  claimant  contends  that  she  is  entitled  to  temporary  total  disability \nbenefits from February 22, 2023 to a date yet to be determined and reasonably necessary \nmedical treatment.  The claimant contends that her attorney is entitled to an appropriate \nattorney’s fee.   \nThe respondents contend that claimant’s injury was idiopathic in nature and, thus, \nnot compensable under the Arkansas Workers’ Compensation Act.  Respondents further \ncontend that in the event compensability is found, the medical documentation does not \nsupport entitlement to indemnity benefits associated with a compensable injury.  \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n\nCasey – H301493 \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non October 25, 2023and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.   Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  she \nsuffered a compensable injury to her head and brain on February 21, 2023. \n \n FACTUAL BACKGROUND \n The claimant worked for respondent in a lab area.  On February 21, 2023, she was \nat work when she had a syncopal episode and fell, injuring her head.  Claimant was taken \nto the emergency room at St. Mary’s in Russellville before being air flighted to Baptist \nHealth in Little Rock.  Claimant has been diagnosed with a skull fracture with hemorrhage. \n After  her  initial  treatment  and  hospitalization,  she  has  treated  with  neurology  at \nBaptist  and  with  her  primary  care  physician,  Jessica  McNeese.    Medical  records  from \nMcNeese  were  introduced  into  the  record,  but  not  the  medical  records  of  Baptist \nNeurology.  Claimant has not returned to work for respondent or for any other employer \nsince the accident.   \n Claimant has filed this claim contending that she suffered a compensable injury to \nher  head  and  brain  as  a  result  of  the  accident  on  February  21,  2023.   She  requests \npayment  of  related  medical,  temporary  total  disability  benefits,  and  a  controverted \nattorney fee. \nADJUDICATION \n Claimant has the burden of proving that her injury was the result of an accident \n\nCasey – H301493 \n \n4 \n \nthat arose in the course of her employment, and that it grew out of, or resulted from the \nemployment.  Moore v. Darling Store Fixtures, 22 Ark. App. 21, 732 S.W. 2d 496 (1987).  \n“Arising out of the employment” refers to the origin or cause of the accident, while “in the \ncourse of the employment” refers to the time, place and circumstances under which the \ninjury occurred.  Little Rock Convention & Visitors Bureau v. Pack, 60 Ark. App. 82, 959 \nS.W. 2d 415 (1997).   \n Respondent contends that claimant’s syncopal episode was idiopathic and not \ncompensable.    Claimant  contends  that  the  syncopal  episode  was  unexplained  and \ncompensable.  An idiopathic injury is one whose cause is personal in nature or peculiar \nto the individual.  Crawford v. Single Source Transportation, 87 Ark. App. 216, 189 S.W. \n3d 507 (2004).  Injuries sustained due to an unexplained cause are different from injuries \nwhere the cause is idiopathic.  Id. at 220-21, 189 S.W. 3d at 510.  When a claimant suffers \nan unexplained injury at work, it is generally compensable.  Id.  at 221, 189 S.W. 3d at \n510.    Because  an  idiopathic  injury  is  not  related  to  employment,  it  is  generally not \ncompensable  unless  conditions  related  to  the  employment  contribute  to  the  risk.   Id.  \nEmployment  conditions  that  may  contribute  to  the  risk  or  aggravate  the  injury  include \nplacing the employee in a position that increases the dangerous effect of a fall, such as \na height, near machinery or sharp corners, or in a moving vehicle.  Id., 189 S.W. 3d at \n510.   \n In  this  case,  the  events  of  the  night  before  (2/20/23)  and  early  morning  hours \n(2/21/23) are relevant.  Testifying at the hearing was William Casey, claimant’s husband \nof five years.  He testified that around midnight he found claimant in the bathroom sitting \non the toilet.  Claimant informed him that she had been constipated but finally had a bowel \n\nCasey – H301493 \n \n5 \n \nmovement.  Claimant also indicated that she was nauseous due to the smell.  According \nto Casey, claimant did not have diarrhea and did not vomit that night.   \n Likewise,  claimant  testified  that  her  stomach  was  cramping  around  midnight  on \nFebruary  21,  2023,  and  that  she  was  constipated.    She  also  testified  that  she  was \nnauseous due to the smell but did not vomit or faint that night.  Claimant further testified \nthat she did not feel sick or ill when she went to work on February 21, 2023, and that she \ndid not vomit after she arrived at work that day.   \n The medical records contain a history significantly different from the testimony of \nclaimant and  her  husband.   The  initial  medical  record  from  the  emergency  room at  St. \nMary contains the following history: \n  Patient was and had episode of fall with hitting her head \n  patient having nausea and vomiting.  Patient complaining \n  of severe headache.  Patient has seizure-like activity after \n  she hit her head.  Husband states patient had episode of \n  nausea and vomiting which happened last night.  And this \n  morning at work patient had nausea vomiting and diarrhea \n  as well.  (Emphasis added.) \n \n \n After  her  initial  treatment  at  the  emergency  room,  claimant  was  air  flighted  to \nBaptist in Little Rock.  The Baptist emergency room record contains the following history: \n  Janice M. Casey is a 57 y.o. female that presents to the \n  ED via transfer from St. Mary’s for evaluation after a fall \n  this morning.  Per EMS and pt records, the patient was \n  at work when she had a syncopal episode.  She fell from \n  standing and hit her head on the hard tile floor with reported \n  seizure like activity after.  The patient was sick with nausea \n  and vomiting last night.  Patient is slightly confused but able \n  to answer questions.  (Emphasis added.) \n \n \n Also on February 21, 2023, claimant was evaluated by Dr. Timothy Burson for a \n\nCasey – H301493 \n \n6 \n \nneurosurgical consult.  His report contains the following history: \n  Pt by report fell at work and struck her head.  Said she \n  had a “stomach virus” the night before with a lot of \n  vomiting.  Felt faint and passed out.  Remembers \n  falling then people standing over her.  Complains \n  of a headache.  Pain at site where she hit her head. \n \n     *** \n  57-year-old female was at work feeling fine stood up \n  had some groin pain nonspecific abdominal pain fell \n  and struck her head.  Transferred from St. Mary’s \n  Hospital after a ground-level fall.  The patient was at \n  work she had a syncopal episode and fell from stand- \n  ing, hit her head on a hard floor.  There was apparently \n  seizure activity afterwards.  Patient slightly confused \n  but able to answer questions.  (Emphasis added.) \n \n \n Both   William   Casey   and   claimant   have   attempted   to   explain   away   these \ninconsistencies.  William Casey testified that claimant’s sister was present when he \narrived at the hospital and he informed her that claimant was constipated the night before.  \nCasey  also testified that he doesn’t recall having any conversations with the medical \nproviders  at  the  hospital,  but  indicated  that  he  never  told  anyone  that  claimant  was \nvomiting.  With respect to the references in the medical records regarding nausea and \nvomiting prior to the fall, he stated: \n  Q Okay.  You realize in the medical records there  \n  is multiple references to claimant being nauseous and \n  vomiting prior to her fall.  Are you aware of that? \n \n  A Somebody assumed that their own self.   \n \n \n However, as previously noted, the initial emergency room report specifically states: \n  Husband states patient had episode of nausea and \n  vomiting which happened last night.  (Emphasis \n  added.) \n\nCasey – H301493 \n \n7 \n \n Claimant  testified  that  she  does  not  remember  anything  that  happened  at  the \nhospital and does not remember talking to the doctors or the nurses.  She did not know \nwhere the information in the medical history came from. \n After having the opportunity to observe the witnesses and consider their testimony, \nI  do  not  find  the  testimony  persuasive  with  regard  to  the  medical  history.    The  initial \nmedical history clearly states that William Casey stated that claimant had an episode of \nnausea and vomiting the night before.  It also indicates that claimant had nausea, vomiting \nand  diarrhea  that  morning at  work.    Likewise,  the emergency  room  report  from Baptist \nindicates that claimant had been sick with nausea and vomiting the night before.  Finally, \nthe report of Dr. Burson who performed a neurosurgical consult specifically stated in his \nhistory: \n  Said she had a “stomach virus” the night before with a lot \n  of vomiting.  Felt faint and passed out. \n \n \n Given the specificity of the reports indicating that William Casey gave a history of \nnausea and vomiting the night before and that claimant gave the history of a “stomach \nvirus” the night before with “a lot of vomiting”, I do not find that these statements are the \nresult of medical providers assuming histories that they were not given or that they were \nsomehow based on misinterpretations.  In short, I see no reason not to give credence to \nthe histories contained in the medical records. \n That history indicates that claimant was suffering from nausea with vomiting and \ndiarrhea the night before February 21, 2023.  It also indicates that claimant had diarrhea \nand vomiting at work that morning.   \n Based  upon  the  evidence  presented,  particularly  the  histories  contained in  the \n\nCasey – H301493 \n \n8 \n \nmedical records, I find that claimant’s syncopal episode was idiopathic in nature and not \nthe  result  of  her  employment  with  respondent.    Claimant  specifically  testified  that  she \nwalked over to her desk to input information into a computer when she simply passed out: \n  Q And then you passed out? \n \n  A Yes. \n \n Claimant  admitted  that  she  did  not  trip  over  anything;  did  not  inhale  or  ingest \nanything that would have made her pass out or faint; and that there was no work-related \ncause that she could identify that made her lose consciousness.  Instead, her testimony \nindicates that something in her body caused her to pass out. \n  Q Something went wrong with your body and it shut \n  down.  Do you agree with that? \n \n  A Correct. \n \n      *** \n  Q So did you experience some odd sensation or \n  feeling coming over your body before you went out? \n \n  A I did. \n \n \n This is also noted in the history contained in Dr. Burson’s neurological consultation \nreport which states: \n  57-year-old female was at work feeling fine stood up had \n  some groin pain nonspecific abdominal pain fell and struck \n  her head. \n \n \n Finally, I note that on March 5, 2023, claimant completed Form AR-N.  When asked \nto briefly discuss the cause of injury  claimant indicated: \n  I had just drew blood from a patient went to my desk, had \n  tinkling feeling from feet to chest and then next thing I \n\nCasey – H301493 \n \n9 \n \n  remember is hearing Cindy and Dr. Walker and in \n  terrible pain from my head where I made contact \n  with the floor.  (Emphasis added.) \n \n \n Based on the totality of the evidence, I find that claimant’s syncopal episode was \nidiopathic in nature.  The medical records indicate a history of diarrhea and vomiting the \nnight before and the morning of the syncopal episode.  Claimant’s testimony indicates \nthat immediately prior to this episode she felt an odd sensation or feeling.  Dr. Burson’s \nmedical report indicates “some groin pain nonspecific abdominal pain”.  And in her Form \nAR-N, claimant described a “tinkling feeling from feet to chest”.  Notably,  there  is  no \nevidence linking the syncopal episode to her job activities with respondent as opposed to \nan idiopathic incident. \n Even  if  a  claimant  suffers  an  idiopathic  injury  it  may  still  be  compensable  if \nemployment  conditions  contribute  to  the  risk  or  aggravate  the  injury  by  placing  the \nemployee in a position that increases the dangerous effect of a fall, such as a height, near \nmachinery  or  sharp  corners,  or  in  a  moving  vehicle.   Crawford  v.  Single  Source \nTransportation, 87 Ark. App. 216, 189 S.W. 3d 507 (2004).   \n Claimant testified that in her addition to her desk, there is a filing cabinet, a chair, \nanother desk, and a refrigerator.  Although there was some question regarding what she \nmay have struck when she fell, claimant admitted that she did not know what happened \nand does not know if she hit her head on anything.   \n  Q Since you are familiar with the lab and the configura- \ntion of the lab and the objects in the lab, have you reached  \na conclusion in regard to what you believe happened? \n \nA No, sir.  I just don’t know what happened to me. \n \n\nCasey – H301493 \n \n10 \n \n    *** \nQ And you told me under oath you could not testify  \nthat you hit your head on anything? \n \nA I don’t recall hitting my head because I was  \npassed out. \n \n \n Accordingly, it would require speculation and conjecture to find that claimant struck \nher  head  against  her  desk  or  any  other  piece  of  furniture  that  day.    Speculation  and \nconjecture  are  not  to  be  substituted  for  credible  evidence  by  the  Commission.   Dena \nConstruction Co. v. Herndon, 264 Ark. 791, 796, 575 S.W.2d 155 (1979).  Therefore, I do \nnot find that claimant’s employment conditions contributed to the risk or aggravated her \ninjury by placing her in a position that increased the effects of a fall. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that she suffered \na compensable injury to her head or brain while employed by respondent on February 21, \n2023.  Therefore, her claim for compensation benefits is hereby denied and dismissed. \n Respondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $611.65. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":16833,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301493 JANICE CASEY, Employee CLAIMANT CONWAY REGIONAL MEDICAL CENTER, Employer RESPONDENT RISK MANAGEMENT RESOURCES, Carrier RESPONDENT OPINION FILED FEBRUARY 14, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Russellville, Pope County...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["fracture"],"fetchedAt":"2026-05-19T22:57:29.030Z"},{"id":"alj-H204763-2024-02-13","awccNumber":"H204763","decisionDate":"2024-02-13","decisionYear":2024,"opinionType":"alj","claimantName":"Kirklin Thompson","employerName":"Den-Tex Central, Inc. D/b/a Denny’s Corporation","title":"THOMPSON VS. DEN-TEX CENTRAL, INC. d/b/a DENNY’S CORPORATION AWCC# H204763 FEBRUARY 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/THOMPSON_KIRKLIN_H204763_20240213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOMPSON_KIRKLIN_H204763_20240213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H204763 \n \nKIRKLIN V. THOMPSON, EMPLOYEE         CLAIMANT \n \nVS. \n \nDEN-TEX CENTRAL, INC. \nd/b/a DENNY’S CORPORATION, EMPLOYER          RESPONDENT  \n \n \nWESCO INSURANCE COMPANY, CARRIER / \nAMTRUST NORTH AMERICA, TPA            RESPONDENT \n       \nOPINION FILED FEBRUARY 13, 2024 \n \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy,  on  the  5\nth\n  day  of \nDecember, 2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant is represented by Beau Duty and Elizabeth Duty, Attorneys-at-Law, Sherwood, \nArkansas. \n \nRespondents are represented by William C. Frye, Attorney-at-Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  conducted  on  the  5\nth\n  day  of  December, 2023,  and  the  parties \nstipulated  that  there  was  an  employee/employer  relationship  that  existed  on  April  30, \n2022, when the claimant sustained a compensable injury to his left middle index finger.  \nAt  the  time  of  the  hearing,  the  respondent  provided  that  the  claimant  had   a  twenty-six \npercent (26%) rating to the finger in question and that a check was being sent.  In addition, \na sum of $4,702.00 had been paid in disability benefits. There was no disagreement as \nto these statements.  After a discussion, the claimant contended at the time of the hearing \nthat  after  the  twelve  (12)  weeks  when  he  received  temporary  total  disability,  he  was \nunable to work a full forty-hour shift and was consequently entitled to temporary partial \ndisability,  which  started  on  or  about  May  1,  2022,  and  ran  up  and  through  the  end  of \n\nTHOMPSON – H204763 \n \n2 \n \nJanuary, and possibly longer, based upon the upcoming testimony of Dr. Williams on the \nday of the hearing.  The parties were unable to agree on the average weekly wage.  The \nclaimant also contended he was still within his healing period, due to the fact his treating \ndoctor  had  refused  to see  him and he was  entitled  to  additional  medical  benefits,  plus \nattorney fees.  A copy of the Prehearing order was marked “Commission Exhibit 1” and \nmade part of the record without objection.  The Order provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission had jurisdiction of the within claim \nand  that  an  employer/employee  relationship  existed  on  April  30,  2022,  the  date  of  the \nadmitted compensable injury to the middle finger.       \n The  claimant’s  and  respondents’  responses  were  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \nobjection.  The witnesses consisted of Dr. Victor Williams, Juan Jose Jackson, and Kirklin \nThompson, the claimant.  In addition, the claimant submitted a post-hearing brief and the \nrespondent submitted a response and these are blue-backed and made part of the record.  \nFrom  a  review  of  the  record  as  a  whole,  to  include  medical  reports  and  other  matters \nproperly before the Commission, and having had an opportunity to observe the testimony \nand demeanor of the witnesses, the following findings of fact and conclusions of law are \nmade in accordance with Arkansas Code Annotated §11-9-704. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That an employer/employee relationship existed on April 30, 2022, the date of \nthe admitted, compensable injury to the claimant’s middle index finger on the \nleft hand. \n\nTHOMPSON – H204763 \n \n3 \n \n3.  The claimant’s  average  weekly  wage  is  found  to  be  $688.06,  sufficient  for  a \ntemporary  total  disability/permanent  partial  disability  weekly  rate  of  $445.00 \nand $334.00, respectively. \n   \n4.  The  claimant  reached MMI on January 10, 2023, and  sustained a  twenty-six \npercent (26%) permanent partial disability rating to the middle finger of the left \nhand. \n \n5.  The  claimant  had  received  a  disability  payment  of  $4,702.00  based  upon  a \nlower  average  weekly  wage.    That  based  upon  an  average  weekly  wage  of \n$688.06,  the  claimant  has  satisfied  the  required  burden  of  proof  that  he is \nentitled to temporary total disability benefits of $5,340.00.00, less what he has \nalready  received and  the  applicable  attorney  fees  as  spelled  out  by  the \nArkansas Workers’ Compensation Act. \n \n6.  That  based  upon  an  average  weekly  wage  of  $688.06,  the  claimant  has \nsatisfied  the  required  burden  of  proof  that  he  is  entitled  to  permanent  partial \ndisability payment benefits of $3,213.08, less what he has already received and \nthe   applicable   attorney   fees   as   spelled  out   by   the  Arkansas   Workers’ \nCompensation Act.   \n \n7.  That the claimant has failed to satisfy the required burden of proof that he is \nentitled to additional medical by the respondent. \n \n8.  The claimant is entitled to attorney fees pursuant to Ark. Code Ann. § 11-9-715 \nand the findings of an additional average weekly wage as spelled out above.  \nThis Award shall bear interest at the legal rate pursuant to Ark. Code Ann. § 11-\n9-  809. \n \n9.   If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the     \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The  Prehearing  Order,  along  with  the  prehearing  questionnaires  of  the parties \nwere admitted into the record without objection.  The claimant submitted two (2) exhibits \nwhich were admitted without objections.  A previous deposition of the claimant was not \nadmitted  since  the  deposition  was  more  involved  with  an  EEOC  claim  filed  by  the \nclaimant, the Commission clearly has no jurisdiction in regard to a EEOC claim, and the \n\nTHOMPSON – H204763 \n \n4 \n \nclaimant  was  available to  testify  in  regard  to  his  workers’  compensation  claim.    The \nrespondents submitted two (2) exhibits that were admitted without objection. \n The initial witness called by the claimant was Dr.  Victor Williams, a general and \nthoracic  surgeon,  licensed  in  the  State  of  Arkansas.    Dr.  Williams  originally  saw  the \nclaimant in December of 2022, after the claimant suffered a fall at Barnhill’s.  In addition \nto treating multiple body parts that were injured related to the fall at Barnhill’s, Dr. Williams \nalso attempted to specifically treat the claimant’s left hand to improve the range of motion.  \nHe opined that he felt the claimant still had some limited range of motion as a result of \nthe injury to his finger that could be improved over time with additional therapy.  He also \nfelt  the  claimant  had  not  reached  maximum  medical  improvement  due  to  a continuing \nlimitation of the range of motion and associated pain,  when he last saw the claimant in \nMarch.  He felt that the claimant needed light-duty due to the type of work he performed \nat the restaurant and his opinion was based upon objective medical evidence.  In regard \nto  the  claimant’s  later  fall that occurred at Barnhill’s, Dr. Williams stated “I thought it \nwas -- more likely than not it was a result of the previous injury that he had to the finger \nand not at – not as of the fall that he had in the restaurant.  I think the fall exacerbated \nthe injury to the finger.” (Tr. 22-26) \n On cross-examination, Dr. Williams admitted that although he had performed some \nsurgeries on fingers, he had not performed the number of surgeries on hands that hand \nsurgeon Dr. Grynwald had performed.  Dr. Williams also admitted that if the claimant had \ncome to him in regard to the deformity he presented with, he would have made a referral \nto  a  hand  surgeon.    He  also  admitted  he  was  aware  that  Dr.  Grynwald  was  a  hand \nsurgeon and had placed the claimant at maximum medical improvement but went on to \n\nTHOMPSON – H204763 \n \n5 \n \nstate the claimant had an issue with finger flexion and extension when he saw him. (Tr. \n27-28)  He also admitted that he would expect some type of limitation rating but that he \nwould always want to improve the limitation if he could. (Tr. 29) \n Dr. Williams was also questioned about seeing the claimant in January when he \nplaced the claimant on light-duty, and that his later medical report of March 2023, when \nhe again saw the claimant, provided that the claimant had spasms in his neck and back \nbut made no mention about the finger.  Dr. Williams  testified he was aware of that, but \nthought that there were physical therapy notes at that time that concentrated on the finger \nas well.  Dr. Williams also admitted that when he was referring to Trigger Point injections \nand the note mentioned starting physical therapy, he was referring to the claimant’s back.  \nHe  agreed  the  assessments  on  March  9  and  again  on  March  28,  as  well  as  the \nassessment on April 6 made no mention of the finger.  He also admitted the April 6 note \nmentioned that the claimant was feeling good with a good range of motion of the cervical \nand lumbar spine and that the claimant, “should slowly return to normal activity over the \nnext few days.  I will see him as needed.”  He agreed this was the last time he saw the \nclaimant and the note made no provision to the finger. (Tr. 30-32)   \n Dr. Williams was then questioned about the claimant’s slip and fall at the restaurant \nand the need for treatment of his finger.  He responded, “You know, I think -- in the fall, I \nthink that -- that he needed treatment for his neck, back, and finger at the same time.”  He \nopined that he felt the treatment sought was related to the slip and fall and the workers’ \ncomp.  “I think the fall exacerbated the previous finger injury that he had.” (Tr. 33) \n\nTHOMPSON – H204763 \n \n6 \n \n On  redirect,  Dr.  Williams  admitted  he  treated  the claimant’s  hand  on  multiple \noccasions with paraffin baths and some sort of needle treatment, with physical therapy. \n(Tr. 34) \n Juan Jose Jackson was then called by the claimant.  Mr. Jackson testified that he \ncurrently worked as a manager with Cracker Barrels Company in Hot Springs and  had \npreviously worked as the District Manager for Denny’s, and the claimant worked at one \nof the seven (7) locations he supervised.  He had several phone calls with the claimant, \nbut  did  not  remember  the  context  of  those  calls.    After  some  discussion,  Mr.  Jackson \nremembered  the  claimant  brought  in  a  note  indicating  that  he  needed  not  to  work \n“because he had an accident somewhere.  And I contacted Human Resources, and they \nsaid, ‘Well, when he gets his full release, tell him he can come back to work,’ and that’s \nwhat I told him.”  He went on to testify he called the claimant and asked if he could return \nto work because they needed him and he never heard back from him.  This conversation \ntook place some time in January.  He thought the claimant brought the doctor’s note in, \naround January 12\nth\n or the 13\nth\n, roughly. (Tr. 35-40)  \n Mr. Jackson was aware that there was additional litigation involving an EEOC claim \nbetween the parties which involved discrimination-based issues.  After a brief discussion \nabout the EEOC claim, Mr. Jackson was asked what his relationship with the claimant \nhad been and he responded as follows: \n“It was very good.  And to answer your question, at many locations, I had to be, if \nyou will a mediator or sit down between a manger and an employee and discuss \nbehavior issues or counseling issues, you know, and so I -- I thought I had a good \nwork relationship with Kirk.  Yes, there were several times we sat down to address \nseveral issues.  I thought Kirk was a good hostess, and I told him that on many \noccasions, and we needed him Thursday, Friday, Saturday, Sunday, and he did a \ngood job. (Tr. 44, 45) \n \n\nTHOMPSON – H204763 \n \n7 \n \n Under cross-examination, Mr. Jackson testified he no longer worked for Den-Tex, \nbut left on good terms.  He admitted having a conversation with the claimant involving the \nfall at the local restaurant, which was not a work-related issue.  Mr. Jackson also testified \nthe claimant was to work as a hostess on Thursdays, Fridays, Saturdays, and Sundays, \nfor ten (10) hours on those days, at the rate of $15.00 an hour.  He admitted he did not \nhave the records of the hours worked in front of him, but the claimant called in and chose \nnot to work. “I was given complete instructions to give 40 hours every week.” (Tr. 46-47) \n Under redirect-examination, Mr. Jackson testified that if the claimant had a therapy \nor doctor’s appointment, he was allowed to go and admitted that he wasn’t aware of the \nday to day coming and going due to the fact he supervised multiple locations. (Tr. 48-49) \n The claimant was then called and testified he had gone to work for Denny’s with \nexperience  as  a  cook,  cut  his  finger  in  April,  and  after  that  it  seemed  his  relationship \ndeteriorated.  He agreed he had worked 32.42 hours the first week due to the fact he was \ntraining  but  he  was  never  trained.    The  records  then  provided  that  his  biweekly  work \nincreased  significantly  with  91.85  hours  and  80.25  hours,  respectively,  after  the  initial \nweek when he was in cook training.  Then his hours decreased significantly per the wage \nrecords.    He  testified, “I  feel  like  once  I  --  you  know,  I  cut  my  finger,  I  felt  like  I  was \nexpendable to them.” (Tr. 50-52)  He admitted falling at Barnhill’s right around the first of \nDecember and that the respondents were aware of the injury.  He stated that he was still \nunder  Dr.  Grynwald’s  care,  but started  seeing  Dr.  Williams,  because  the  treatment  Dr. \nGrynwald provided was not working,  He went to therapy on January 12\nth\n, and received \na note he needed to be off work.  He then talked to Mr. Jackson on January 18\nth\n, where \nhe was told he no longer needed to come work until he talked to Bertha and obtained a \n\nTHOMPSON – H204763 \n \n8 \n \nrelease from the doctor.  He was then never called by Mr. Jackson.  He attempted to call \nBertha in regard to returning to work, but was  told he needed to contact the insurance \ncompany and she didn’t want anything else to do with it. (Tr. 53-54) \n In regard to pay periods, they consisted of two (2) weeks, with the first pay period \nappearing to be from March 24, 2022, to April 6, 2022.  The initial pay period provided \nthe claimant worked 32.42 hours, with no records of the exact start date. (Tr. 56) \nUnder cross-examination, the claimant agreed it sounded about right that his injury \noccurred on April 30.  He was asked about his work records and stated that from April 21 \nthrough May 4, he worked more than forty (40) hours per week.  He agreed that from May \n5  through  May  18,  he worked  forty  (40)  hours  each  week, plus 7.78  hours of overtime \nwhich was after his injury.  He denied being on light-duty at the time.  He stated he went \nto the doctor after that.  He was then moved to the hostess job after the surgery on his \nbirthday which was June 28 and was not out of work for very long.  “They were working \nme  good  even  after  I  cut  that  finger,  they  were,  and   I  just  couldn’t  take  it  no \nmore.” (Tr. 56-57)  The claimant agreed he was off work from June 1 through July 27, \nand  that  was  probably  the  period  when  he  received  TTD  benefits.    He  also  agreed  it \nsounded about right that he worked twenty-eight and one-half (28 ½) hours from August \n3 through August the 10.  He was then questioned about the hours he had worked being \nall  over  the  place,  and  admitted  he  had  his  fall  on  December  6\nth\n,  missing  work  from \nDecember 7\nth\n through December 14\nth\n. (Tr. 58-59)  “I was going through therapy with the \nfinger with Dr. Grynwald plus the injury happened.”  He was asked about therapy on June \n15, April 24, June 28, July 5, 12,13, 18, and 20, August 3, 29, and 30, and admitted the \ntherapy  lasted  between  one  (1)  and  one  and  a  half  hours (1-1/2).    (Tr.  60)_ “If  Dr. \n\nTHOMPSON – H204763 \n \n9 \n \nGrynwald  told me to go to therapy, I worked and I went to therapy.”  Denny’s graciously \nsupplied him a cab to go to and from therapy due to the medications he had been placed \non.  When he was transferred to the host position and light duty, he never received forty \n(40) hours again. (Tr. 61) \nIn regard to the slip and fall, the claimant admitted that he had injured his neck, \nback, shoulder, and finger, due to the fact that he attempted to brace himself when he fell \nand further contended that x-rays showed nothing else was wrong with his finger. (Tr. 62) \nOn  re-direct,  the  claimant  agreed  he  was  working  fewer  hours  while  he  was  on \nlight-duty.  He also agreed that he received the same rate of pay as a hostess  that he \nreceived as a cook. \nThe claimant introduced seventy (70) pages of medical records without objection.  \nThe  claimant  presented  to  Katelyn  Saeler,  OTR,  on  June  15,  2022,  in  regard  to  a \nBoutonniere deformity and a laceration of the left finger tendon, while under the treatment \nof  Dr.  Grynwald.    Therapeutic  exercises  were  performed  to  resolve  decreased  joint \nmobility and joint stability, along with decreased fine motor coordination, dexterity, and \nstrength. (Cl.Ex.1, P.1-4)  The claimant returned to occupational therapy on June 24\nth\n and \nJune 28\nth\n, presenting to William Camden, OTR. (Cl.Ex.1, P. 5-15)   \nThe claimant saw Dr. Grynwald on June 28\nth,\n and the report provided the claimant \nwas  seen  in  orthopedic  urgent  care  three  (3)  weeks  after an  injury  involving  a  tendon.  \nThe finger splint was removed, and the claimant was doing well with no sign of infection.  \nThere was no swelling of the finger or erythema.  A slight hyperextension of the DIP joint \nwas noted with persistence of the boutonniere deformity.  Surgery had occurred on June \n3, 2022.  In regard to work restrictions, the report provided that the splint must be worn, \n\nTHOMPSON – H204763 \n \n10 \n \nbut  there  should  be  no  gripping  or  lifting  with  the  left  hand.    Claimant  should  reach \nmaximum  medical  improvement  approximately  three  (3)  months  after  his  surgery. \n(Cl.Ex.1,P. 25-28)  \nThe claimant continued occupation therapy with William Camden, OTR, on July 5, \n2022, who provided the claimant was right-hand dominant and was still reporting pain in \nthe  left  long  finger.  Exercises  were  performed.  (Cl.Ex.1,P.  20-24)    The  claimant  again \nreported to Dr. Grynwald a few days later, on July 12, 2022.  Dr. Grynwald opined that \ndue to the tightness of the PIP joint, the claimant might require a revision and a possible \nFowler tenotomy.  A left boutonniere deformity was again noted. (Cl.Ex.1, P. 25-28) \nThe claimant continued with occupation therapy on July 12, 13, 18, 20,\n  \nand August \n3,  2022.  (Cl.Ex.1,  P.  29-53)    On  August  29,  2022,  the  claimant  presented  to  Kristen \nRoberson,  COTA,  and  numerous  exercises  regarding  the  left  hand  were  performed. \n(Cl.Ex.1, P. 54-58)  On August 30, 2022, the claimant received a three-phase bone scan \nand the report provided the findings were not typical findings for complex regional pain \nsyndrome.  (Cl.Ex.1,P.59)    The  claimant  then  returned  to  occupational  therapy  the \nfollowing day, August 31, 2022.  The report provided there had been an increase range \nof motion in the left finger and that the patient would achieve a sufficient increase in finger, \nwrist, and forearm range of motion and hand strength to be independent of ADL’s at home \nand in leisure activities within 3-6 months with a functional limitation percentage of zero \npercent (0%). \nA  letter  from  Dr. Williams  dated  December  15,  2022, provided  that  the  claimant \ncould  return  to  work  on  December  19,  2022.    A  second  letter  from  Dr.  Williams  dated \nDecember 29, 2022, provided the claimant was to return to work on January 2, 2023.  A \n\nTHOMPSON – H204763 \n \n11 \n \nthird letter from Dr. Williams dated February 23, 2023, provided that due to an injury of \nthe claimant’s left long finger and left shoulder as a result of a work accident on April 30, \n2022, and due to the symptoms of the claimant, it was necessary to continue treatment \nof the regions to improve range of motion. (Cl.Ex.1, P.65-67)  Finally, a report from Kristen \nWagner, P.A., dated July 29, 2022, provided there was a limit with the left hand.  (Cl.Ex.1, \nP.68) \nThe  claimant  also  submitted  the  respondents’  response  to  the  Request  for \nAdmissions as claimant’s exhibit two and it was admitted without objection \nThe  respondents  introduced  medical  records  without  objection  that  consisted  of \none  hundred  twenty-nine  (129)  pages  plus  an  abstracted  medical  record  index,  which \nresulted in a total of one hundred forty-one (141) pages.  The records provided that the \nclaimant originally presented to Christopher Vinson, NP, on May 23, 2022, in regard to \nleft hand pain in the left long finger from a knife cut.  Swelling and tendon damage were \nnoted with the claimant unable to fully extend the finger at the PIP joint.  The problems \nbegan on April 30, 2022, when the claimant sustained a laceration over the dorsal aspect \nof  the  long  finger  PIP  joint.  (Resp.Ex.1,  P.1-3)    The  claimant  then  presented  to  Dr. \nGrynwald on May 25, 2022.  The report provided a 15mm oblique scar over the PIP joint \nof the left finger was noted as well as a boutonniere deformity.  The plan was to repair \nthe long finger extensor tendon, with a pinning of the PIP joint.  Work restrictions for the \nleft hand were noted as pinch only.  (Resp.Ex.1, P. 4-6)  Dr. Grynwald’s operative note of \nJune  3,  2022,  provided  the  presence  of  an  extensor  tendon  laceration  of  the  left  long \nfinger with a boutonniere deformity of the left long finger.  A repair of the left long finger \n\nTHOMPSON – H204763 \n \n12 \n \nextensor tendon was performed with an extension pinning of the proximal interphalangeal \njoint. (Resp.Ex.1, P. 7-8)    \nThe  claimant  returned  to  see  Kristen  Wagner, P.A., on June 15, 2022, for a \npost-surgery follow-up.  The report provided for work restrictions until the left thumb and \nindex finger could be used to pinch items.  Maximum medical improvement  should take \napproximately three (3) months, being approximately September 3, 2002. (Resp.Ex.1, P. \n9-12)   The  claimant  returned  to  Dr.  Grynwald  on  June 28,  2022,  for  another  follow-up, \nwhere  Dr.Grynwald  continued  the  work  restrictions  and  removed  the  Kirschner  wire. \n(Resp.Ex.1, P.13-18)  The claimant again returned to Dr. Grynwald on July 12, 2022, for \nanother office visit as described in the claimant’s medical. \nThe claimant was seen by William Camden, OTR, on July 25, 2025, in regard to \noccupational  therapy.  (Resp.Ex.1,  P.  23-27)   He  then  presented  to  Kristen  Roberson, \nCOTA, on July 27, 2022, for an improvement of range of motion.  Claimant reported pain \nand hypersensitivity in the DIP joint and manual exercises were limited due to the pain. \n(Resp.Ex.1, P.28-32)  Two (2) days later, the claimant presented to Kristen Wagner, PA.  \nModerate swelling was noted around the dorsum of the PIP joint.  A three-phase bone \nscan was then ordered with work restrictions to the left hand issued where the claimant \nwas  not  to  lift  or  grip  over  five  (5)  pounds.  (Resp.Ex.1,  P.  33-36)  The  claimant  then \nreturned to Kristen Roberson, COTA, on August 1, 2022, and again on August 8, 2022.  \nThe  manual  range  of  motion  was  better  tolerated  and  although  there  was moderate \nswelling, the pain had decreased on the second of the two visits and the second report \nprovided that the work release would be changed. (Resp.Ex.1, P. 37-46)  The claimant \ncontinued to return to various occupational therapists on the dates of August 10, 15, 17 \n\nTHOMPSON – H204763 \n \n13 \n \nand the 22.  The report of August 22, provided that pain was still noted and the functional \nlimitation was at 86.3%. (Resp.Ex.1, P. 47-67)  \nThe next visit to Dr. Grynwald  on August 23, 2022, noted moderate swelling over \nthe PIP joint with hypersensitivity at the dorsum of the PIP joint.  A Fowler tenotomy was \nrecommended.      A   five   (5)   pound   lifting/griping   restriction   of   the   left   hand   was \nrecommended  with  no  pinching  use  of  the  index  finger.  (Resp.Ex.1,  P.68-71)   The \nclaimant then returned to William Camden, OTR, on September 26, 2022, and the therapy \nnote  indicated  finger  soreness,  but  that manual therapy was tolerated. (Resp.Ex.1, P. \n72-76)    The  claimant  then  again  returned  to  Dr.  Grynwald  on  October  3,  2022,  and  a \nprocedure was performed where there was an immediate release of the hyperextension \nof  the  long  finger,  coming  to  rest  at  neutral.    The  skin  was  closed  with  sutures.    A \nboutonniere  deformity  was  again  noted.  (Resp.Ex.1,  P. 77-79)    The  claimant  then \nreturned to Kristen Wanger, PA, on October 7, 2022, for a post-procedure follow-up where \nshe ordered physical therapy.  Active flexion at the PIP and DIP joints was noted.  Work \nrestrictions until October 17, 2022, were still in place. (Resp.Ex.1, P. 80-83)   \nThe claimant returned to Dr. Grynwald  on October 18, 2022, November 1, 2022, \nand again on November 21, 2022.  On the October 18, 2022, visit, there was 20 degrees \nof  active  flexion,  and  later  on  the  November  1,  2022  visit,  with  on-going  occupational \ntherapy and home exercises, active range of motion was from 20 to 65 degrees.    Pain \nwas still noted and there with a two-pound max lift grip extension of the left hand.  On the \nNovember 21, 2022, visit, an active range of motion of the PIP joint of the long finger was \nnoted at 16-80 degrees.  There was no hyperextension of the DIP joint and active flexion \n\nTHOMPSON – H204763 \n \n14 \n \nof the DIP joint of 0 to 35 degrees was noted.  Work restrictions were the same, but with \ngradual increasing limitations likely postoperatively. (Resp.Ex.1, P. 84-95) \nThe claimant returned to Dr. Grynwald on December 5, 2022, the last visit prior to \nthe  fall  at  Barnhill’s.    The  report  provided  that  the  active  range  of  motion  was  much \nimproved with good active flexion and extension and the claimant had the ability to make \na composite fist.  No hyperextension of the DIP Joint was noted.  Two (2) more weeks of \ntherapy  were added.   The  claimant  was told  he  could  return  to  full  activity  with a  work \nrestriction  of  ten  (10)  pound  max  grip  and  lift  restriction  for  two  (2)  weeks  and  then \ngradually increase over eight (8) weeks. (Resp.Ex.1. P. 96-99) \nAfter the claimant’s injury at Barnhill’s, he presented to Christopher Vinson NP, on \nDecember  7,  2022.    The  records  provided  the  claimant  had  slipped  and  fell  hitting  his \nhead, neck, lower back, and jamming the index finger of his left hand.  He was urged to \ngo to the Emergency Room in regard to the head injury.  He was instructed that he could \nreturn to work on December 12, 2022. (Resp.Ex. 1. P. 100-104) \nThe claimant’s visit to Dr. Williams was mentioned in the claimant’s exhibits. The \nx-rays were normal but degenerative changes were observed.  Finger pain was noted in \nthe left index finger and the palm of the left hand.  Decreased range of motion with both \nflexion    and    extension    of    the    left    middle    finger    was    noted    due   to    the    pain. \n(Resp.Ex.1, P. 105-107)   The claimant presented to Meagan Celsor, NP, on December \n21, 2022, with complaints of neck and back pain. (Resp.Ex. 1, P.22)  The records provided \nthat the claimant returned to Dr. Victor Williams on December 29, 2022, with complaints \nof  pain  in  the  left  index  finger  as  well  as  the  cervical  and  lumbar  spine. (Resp. \nEx.1, P.111-113) \n\nTHOMPSON – H204763 \n \n15 \n \nThe claimant then again returned to Dr. Grynwald on January 10, 2023.  The report \nstated  the  surgical  scars  had  healed  and  the  claimant  was  able  to  touch  his  left  long \nfingertip to his palm with good flexion of 40 degrees of the DIP joint and MPJ flexion to \n90  degrees.    The  claimant  was  released at  maximum  medical  improvement  for  a \ncombined rating to the finger of twenty-six percent (26%). \nAfter the last visit to Dr. Grnwald, the claimant returned to Dr. Williams on January \n12, 2023, and on January 23, 2023.  On the first visit, continued pain    of the left long finger \nand hand as well the left shoulder neck and back with spasms of the neck and back were \nnoted.  This report also noted range of motion problems with the DIP joint.  An off-work \nslip  for  January  12,  2023  to  January  15,  2023,  was  issued  with  light-duty  starting  on \nJanuary 16, 2023.  Dr. William’s report of January 23, 2023, provided a treatment letter \nto continue treating the left long finger and shoulder. (Resp.Ex.1, P.119-122) \nThe claimant continued to return to Dr. Williams on the dates of March 9, 2023,  \nMarch 28, 2023, April 6, 2023, and May 1, 2023.  The reports provided that the claimant \nwas suffering from continued neck and back pain and that the claimant received injections \nin the bilateral trapezius and right lumbar paraspinous muscle trigger point with the restart \nof physical therapy.  The claimant’s range of motion had improved as noted in the April \nvisit.  A note to return to work without restrictions was provided on May 1, 2023.  (Resp. \nEx.1, P.123-129) \nThe respondent also introduced the claimant’s wage records and temporary total \ndisability payment history, without objection, which provided that the claimant’s initial pay \nperiod began on March 24, 2022, and ran for a two-week period, with a total of only 32.42 \nhours worked.  Beginning for the pay period starting on April 7, 2022, and running through \n\nTHOMPSON – H204763 \n \n16 \n \nApril 20, 2022, the claimant worked a total of 91.85 hours, which included overtime for \nthe  two-week  period,  and  worked  overtime  until  the  pay  period  running  from  May  19, \n2022, and running through June 1, 2022.  From that date forward, the records provided \nthat the claimant worked less than a forty (40) hour week, with the last pay period being \nfrom  January  12,  2023,  through  January  25,  2023,  with  only  6.10  hours  worked.  \nTemporary total disability payment records were also provided.  (Resp.Ex. 2, P. 1-6)   \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nIn  determining  whether  the  claimant  has  sustained  his  burden  of  proof,  the \nCommission shall weigh the evidence impartially, without giving the benefit of the doubt \nto either party.  Arkansas Code Annotated §11-9-704.  Wade v. Mr. Cavananugh’s, 298 \nArk.  364,  768  S.W. 2d  521  (1989).    Further, the  Commission  has  the  duty to  translate \nevidence  on  all  issues  before  it  into  findings  of  fact.   Weldon  v.  Pierce  Brothers \nConstruction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996).  \nIn regard to the average weekly wage, Ark. Code Ann. §11-9-518(a)(1) provides \nthat  compensation  shall  be  computed  on  the  average  weekly  wage  earned  by  the \nemployee under the contract of hire at the time of the accident and in no case shall it be \ncomputed on less than a full-time work week in the employment.  The Arkansas Court of \nAppeals stated  that even in cases where the claimant’s wage records show that some \nweeks the claimant worked less than a full week under the contract of hire, the average \nweekly  wage  should  still  be  based  upon  on a  full-time  work  week. Johnson  v.  Abilities \nUnlimited, Inc., 2009 Ark. App. 866, 9, 372 S.W.3d 838, 843 (2009).  After reviewing the \npayroll records, it is determined that the initial two (2) weeks of the claimant’s employment \nwhere the claimant worked less than forty (40) hours per week were for training and these \n\nTHOMPSON – H204763 \n \n17 \n \nfindings correspond with the testimony of the claimant.  After that, the claimant worked \novertime during the next two (2) full weeks of employment.   Consequently, the average \nweekly wage is found to be $688.06, making the temporary total disability benefit rate and \nthe permanent partial disability benefit rate  $445.00 and $334.00, respectively.  Based \nupon this finding, the claimant is found to be entitled to a total of $5,340.00 for temporary \ntotal disability, less the benefits already paid and the applicable attorney fees, as spelled \nout by the Arkansas Workers’ Compensation Act.    \nIn regard to the issue of the claimant’s entitlement to temporary partial disability \nbenefits, an employee has the burden of proving, by a preponderance of the evidence, \nthat he remains in his healing period and that he suffers a partial incapacity to earn wages.  \nAmay v. Newberry’s 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008).  The healing \nperiod is that period for healing from an accidental injury that continues until the employee \nis as far restored as the permanent character of his injury will permit and that ends when \nthe underlying condition causing the disability has become stable and nothing in the way \nof new treatment will improve that condition.  Farmers Coop V. Billes, 77 Ark. App. 1, 69 \nS.W.3d 899 (2002).  In the present matter, the primary treating surgeon who performed \nsurgery on the left middle index finger and the follow up, Dr. Grynwald, opined that the \nclaimant reached MMI on January 10, 2023, and that he had suffered a disability rating \nto  the  left  middle  index  finger  of  twenty-six  percent  (26%),  which was  accepted  by  the \nrespondents.  Dr. Grynwald is in fact a hand surgeon.  During the treatment period, the \nclaimant  also  began  seeing  Dr.  Williams,  a  general  and  thoracic  surgeon,  after  the \nclaimant suffered a slip and fall injury at Barnhill’s, injuring his back, shoulder, head, and \nagain  injuring  his  left  middle  index  finger.    There  was  no  allegation  that  the second \n\nTHOMPSON – H204763 \n \n18 \n \naccident was work-related.  Dr. Williams opined that the claimant remained in his healing \nperiod until at least the end of January.  Dr. Williams was clearly a caring and talented \ndoctor who felt that the claimant’s finger could further improve after he started treating \nhim in regard to the slip and fall.  He also agreed Dr. Grynwald was more experienced in \nregard  to  hand  injuries,  and  if  the  claimant had initially presented to him after the \nwork-related  knife  injury  to  his  hand,  he  would  have  referred the  claimant  to  a  hand \nsurgeon.    \nThe Commission has the duty of weighing medical evidence, and the resolution of \nconflicting evidence is a question of fact for the Commission.  It is well settled that the \nCommission has the authority to accept or reject medical opinions and to determine the \nmedical soundness and probative force of the opinions.  Williams v. Ark. Dept. of Cmty \nCorr.  2016  Ark.  App.  427,  502  S.W.3d  530  (2016).    Consequently,  the  opinion  of  Dr. \nGrynwald, the hand surgeon who treated the claimant for an extended period of time, is \nfound to be controlling in regard to the claimant reaching MMI on January 10, 2023, and \nconsequently, no additional temporary partial disability payments are due after that date. \nIn regard to additional temporary partial disability from April 30, 2022, the admitted \ndate  of  the  claimant’s  work-related  injury, to  January  10,  2023,  the  date  the  claimant \nreached MMI as determined by Br. Grynwald,  an office note of July 29, 2022, by Kristen \nWagner, PA, provided that the claimant’s work restrictions to the left hand were limited to \nfive (5) pounds lifting and griping. This would appear to be well within the range of work \na hostess would perform.  Mr. Juan Jose Jackson, who worked as the district manager \nfor Denny’s over seven (7) restaurants at the time of the claimant’s injury, and who is now \nemployed by Cracker Barrel, testified that he was instructed to provide the claimant forty \n\nTHOMPSON – H204763 \n \n19 \n \n(40) hours of work a week as a hostess. This job would result in work for ten (10) hours \na  day,  four  (4)  days a  week.    He  felt that  the  claimant made an excellent  hostess  and \nstated that they needed him.  The pay was the same for both the cook and hostess jobs, \n$15.00  an  hour.    Mr.  Jackson  testified  that  when  he  called  the  claimant  asking  him  to \nreturn because they needed him, he never heard back from him.  During Mr. Jackson’s \ntestimony, it appeared that he genuinely liked the claimant, and his testimony was found \nto be believable.  He no longer works for the respondent and therefore is not influenced \nby the respondent.  It is common knowledge that nearly all restaurants have had a difficult \ntime  obtaining  capable  workers  since  the  start  of  COVID.    The  employment records \nprovide  that  the  claimant  appeared  to  regularly  appear  for  work  after  the work-related \ninjury  on  April  30,  2022,  until  the  date  of  June  1,  2022,  approximately  the  date  of  the \nclaimant’s initial surgery to his middle index finger of the left hand.  It is noted that the \nclaimant’s  hours actually  worked,  decreased  after  the  approximate  time  of  the  initial \nsurgery, and ended after  Dr. Grynwald opined that the claimant had reached MMI and \nafter the slip and fall accident.  However, it is found that work at the same pay rate that \nthe claimant could perform was in fact available during this period.  \nBased  upon  the  above  and  the  wage  rate  of  $699.06  per  week,  the claimant  is \nfound to be entitled to the difference of temporary partial disability benefits in the amount \nof  $3,213.08,  less  what  he  has  already  received  and  the  applicable  attorney  fees  as \nspelled out by the Arkansas Workers’ Compensation Act. \nFinally,  in  regard  to  the  issue  of  additional  medical,  the  law  is  clear  that  the \nemployee has the burden of proving, by a preponderance of the evidence, that medical \ntreatment is reasonably necessary.  Stone v. Dollar General Stores, 91 Ark. App. 260, \n\nTHOMPSON – H204763 \n \n20 \n \n209 S.W.3d 445 (2005).  Dr. Grynwald, who originally treated the claimant for the injury \nof the left middle index finger and performed surgery on it, opined that the claimant had \nreached MMI on January 10, 2023, and suffered a twenty-six (26%) disability rating to the \nfinger.  He  ordered  no  additional  medical  treatment  of  any  type  on claimant’s  last  visit, \nwhich was prior to the unrelated slip and fall at Barnhill’s.  Consequently, it is found that \nthe  claimant  has  failed  to  satisfy  the  burden  of  proof  that  he  is  entitled  to  additional \nmedical treatment by the respondent.    \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither  party,  it  is  found  that  the  claimant  earned  an  average  weekly  wage  of  $688.06, \nwhich would entitle him to a temporary total disability/permanent partial disability rate of \n$445.00/$334.00,  respectively.    He  is  found  to  be  entitled  to  temporary  total  disability \nbenefits of $5,340.00.00, less what he has already received and the applicable attorney \nfees  as  spelled  out  by  the  Arkansas  Workers’  Compensation  Act.    Additionally,  based \nupon the determined average weekly wage, he is also found to be entitled to permanent \npartial disability payment benefits of $3,213.08, less what he has already received  and \nthe applicable attorney fees as spelled out by the Arkansas Workers’ Compensation Act.  \nIt is further found the claimant has failed to satisfy the required burden of proof that he is \nentitled to additional medical treatment. This Award shall bear interest at the legal rate \npursuant to Ark. Code Ann. §11-9-809.   If not already paid, the respondents are ordered \nto pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n  \n \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":40213,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204763 KIRKLIN V. THOMPSON, EMPLOYEE CLAIMANT VS. DEN-TEX CENTRAL, INC. d/b/a DENNY’S CORPORATION, EMPLOYER RESPONDENT WESCO INSURANCE COMPANY, CARRIER / AMTRUST NORTH AMERICA, TPA RESPONDENT OPINION FILED FEBRUARY 13, 2024 Hearing before Administrative La...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["thoracic","neck","back","cervical","lumbar","shoulder","wrist"],"fetchedAt":"2026-05-19T22:57:20.694Z"},{"id":"alj-H302429-2024-02-13","awccNumber":"H302429","decisionDate":"2024-02-13","decisionYear":2024,"opinionType":"alj","claimantName":"Torres Trinidad","employerName":"A.G. Stone","title":"RIVERA VS. A.G. STONE AWCC# H302429 FEBRUARY 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TRINIDAD_TORRES_RIVERA_H302395_20240213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TRINIDAD_TORRES_RIVERA_H302395_20240213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H302395 \n \nTRINIDAD TORRES RIVERA,  \nEMPLOYEE                                                                                                    CLAIMANT \n \nA.G. STONE,  \nEMPLOYER                                                                                                         RESPONDENT \n \nUNINSURED/ARKANSAS WORKERS’ \nCOMPENSATION COMMISSION, \nINSURANCE CARRIER/TPA                                                                      RESPONDENT     \n                           \n                                   \nOPINION FILED FEBRUARY 13, 2024 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative Law Judge (ALJ) Mike Pickens, on November 14, 2023, in Little Rock, Pulaski \nCounty, Arkansas. \n \nThe  claimant  was  represented  by  the  Honorable  Mark  Alan  Peoples,  Peoples  Law  Firm,  Little \nRock, Pulaski County, Arkansas.  \n \nThe respondents were represented by the Honorable Terence C. Jensen, Jensen, Young & Butler, \nPLLC, Benton, Saline County, Arkansas. \n \nINTRODUCTION \n \nIn the prehearing order filed September 21, 2023, the parties agreed to the following \nstipulations, which they affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  claimant  alleges  an  employment  relationship  existed  between  he  and  A.  G. \nStone  on  August  28,  2022;  and  that  he  allegedly  injured  his  lower  back/lumbar \nspine,  and  both  his  right  and  left  legs  within  the  course  and  scope  of  his  alleged \nemployment on that date. \n \n3. The respondents have controverted this claim in its entirety. \n  \n4. The parties specifically reserve any and all other issues for future litigation and/or \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n2 \ndetermination. \n \n(Commission Exhibit 1 at 1-2; Reporter’s Transcript at 6-8; 95-96). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were: \n1. Whether an employment relationship existed between the claimant and A. G. Stone \non August 28, 2022, the date of the claimant’s alleged injuries. \n \n2. If the claimant is deemed to have been an “employee” on August 28, 2022, whether \nhe sustained compensable injuries within the meaning of the Arkansas’ Workers’ \nCompensation Act (the Act) to his lower back/lumbar spine, and both his right and \nleft legs on August 28, 2022. \n \n3. If the claimant’s alleged injuries are deemed compensable, the extent to which he \nis entitled to medical and indemnity benefits. \n \n4. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n5. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. 7-8; 96).                              \n The  claimant  contends  he  was  an  employee  of  the  respondent-employer,  A.G.  Stone \n(Stone)  on  August  28,  2022.  He  contends  he  sustained  a  work  injury  to  his  lower  back/lumbar \nspine, and both his left and right legs on or about August 28, 2022, during the course and scope of \nhis employment with Stone. The claimant contends he is entitled to medical treatment related to \nhis work injury at Stone’s expense. The claimant further contends he is entitled to TTD benefits \nfrom August 28. 2022, the date of injury, through a date yet-to-be-determined. Finally, the claimant \ncontends the respondent has controverted this claim in its entirety and, therefore, his attorney is \nentitled  to  maximum  statutory  attorney’s  fees.  The  claimant  specifically  reserves  the  right  to \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n3 \namend his prehearing questionnaire response upon the completion of  appropriate and necessary \ninvestigation and discovery. In addition, he specifically reserves any and all other issues for future \ndetermination and/or litigation. (Comms’n Ex. 1 at 2; T. 96-97).  \nThe respondents contend the claimant was not Stone’s employee on or about August 28, \n2022, and that he cannot meet his required burden of proof pursuant to the Act. The respondents \nfurther contend the claimant cannot meet his burden of proof in demonstrating he sustained any \ncompensable injuries on August 28, 2022. The respondents reserve the right to file an amended \nresponse to the prehearing questionnaire and/or any and all other appropriate pleading(s), and to \nplead  any  further  affirmative  defense(s)  that  may  be  available  to  them  upon  the  completion  of \nnecessary  and  appropriate  discovery,  which  discovery  is  ongoing  at  this  time.  The  respondents \nspecifically reserve any and all other issues for future determination and/or litigation. (Comms’n \nEx. 1 at 3; T. 97). \nThe  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto. \nSTATEMENT OF THE CASE \nThe claimant, Mr. Trinidad Torres Rivera (the claimant), 58 years old. He testified that as \nof  the  date  of  his  alleged  work-related  injury,  August  220,  2022,  he  had  been  working  for  Mr. \nAdolfo Gomez “A.G.” (A.G.) (hereinafter, A.G. Stone, or Stone, will be deemed to apply to Mr. \nGomez as  an individual, and to the sole proprietorship, “A.G. Stone”),  which  is  owned  by  Mr. \nAdolfo Gomez (thus the name of the business, “A.G.” Stone), for, “more than two (2 ) years.” (T. \n25). Stone apparently acquires, cuts, polishes, and hauls marble, granite, and other similar products \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n4 \nto  both  build/finish-out  and  to  remodel  kitchens  and  bathrooms.  The  claimant  testified  he  had \nsimilar job duties at Stone. He further testified that on August 22, 2022, he was lifting a piece of \nmarble from a pallet over his head when two (2) pieces of the marble (he didn’t know how much \nthey weighed but described them as “heavy”) fell and struck both his right and left lower legs, and \nhe alleges the incident also caused him significant lower back/lumbar spine pain to the point he \nthought his back was, “broken.” (T. 25-28).  \nIn  August  2022,  Ms.  Michaela  Faith  was  working  on  a  part-time basis  as  Stone’s \nbookkeeper/administrator/secretary, and she was present at the time of the incident in question and \nsaw  it  happen.  She  worked  on  a  part-time  basis  at  that  time,  as  did  the  other  four  (4)  people, \nincluding Stone, she described as working with Stone, since there was not enough work to keep \nher, and them, busy 40 hours a week. She said even Stone had more than one (1) job, working as \na handyman for a couple of other companies so he could support his family. Ms. Faith adamantly \ntestified that while the claimant was present on the A.G. Stone work premises from time to time, \nhe was not there every day, and when he was present on the Stone premises he was not there to \nwork with Stone, but was there to work “on his vehicles,” which Stone allowed him to keep behind \nhis shop. Specifically, Ms. Faith testified: “I just saw him working on the cars, kinda just piddling \naround in the back.” She correctly surmised, as the claimant eventually testified under oath, that \nthe cars belong to him. (T. 50-54; T.37-37).  \nWhen asked the question on direct examination, whether the claimant was an employee of \nA.G. Stone, she flatly and succinctly replied, “He was not.” (T. 53).  Ms.  Faith  also  clearly  and \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n5 \nadamantly testified the claimant had absolutely no reason to be in the area doing what he was doing \nat the time the marble fell on him. (T. 64-67; 69-87; 50-63). \n Ms. Faith was only working two (2) days a week when she first started to work with Stone \nin 2022 May, and it was not until around January of 2023 when she started working four (4) days \na week, and then five (5) days a week in July of 2023. She was a part-time worker because she \nwas also working for another company since, again, Stone’s quantity of business was such that his \ncompany could not keep her or the other people with whom she worked busy. (T. 51-52). Ms. Faith \ntestified that as the bookkeeper she paid Stone, herself, and all the other people who worked with \nA.G. Stone as, “1099 employees”, or “1099 subcontractors.” (T. 56-63).    \nAt the time of the claimant’s August 20, 2022, incident, Ms. Faith was only working with \nStone on a part-time basis, as were the other people associated with him, including Stone himself. \nMs. Faith testified that she was the person whose job it was to make payroll, and that she paid the \nemployees by check; and contrary to the claimant’s sworn testimony that he was sometimes paid \nin cash and sometimes paid by cash he believed he had received, “Probably...more than 10...” \nand  “Maybe”  more  than  20  checks  from  Stone.  (T.44).  He  also  testified  under  oath  that  Stone \nalways  withheld  taxes  from  his  checks;  however,  the  claimant  later  admitted  under  cross-\nexamination that he did not file a tax return for either the 2021 or 2022 tax years, and that he was \nnot legally in the United States to work, and he admitted – as he apparently had in his deposition \n– that he had no “legal status” in the United States – which he also added was the same situation \nA.G. Stone was in. (T.45-48). [Concerning the claimant’s legal/ United States citizenship status, \nthe ALJ sustained the claimant’s attorney’s objection as to relevance/irrelevance concerning his \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n6 \nworkers’ compensation claim, but the ALJ did allow the respondents’ attorney’s request to proffer \nthis testimony, as the ALJ did not consider it with respect to any issue relating to compensability, \nbut believed it to be relevant – just as was the claimant’s admission he did not file a tax return for \neither the 2021 or 2022 tax years – to his respect for the law and, more significantly, his credibility \nor lack thereof. (T. 45-48)].  \nMoreover, while the claimant estimated Stone had paid him some 20 times with checks, he \ncould  not  and  did  not  produce  any  documentary  evidence –  such  as  a  cancelled  check,  bank \nrecords,  etc. –  proving  Stone  had  in  fact  paid  him  as  he  alleged.  (T.  45).  Indeed,  the  claimant \nadmitted he had no, “written proof of a single check that he received from A.G. Stone before [his] \naccident of August 28, 2022” when he responded he did not have any such proof, “at this moment \nin time.” (T. 45). This admission, even though he also admitted he knew he was coming to court \non the day of the hearing. The claimant said he had “photos of them [the checks] but I don’t have \nthem with me right now.” (T. 45) (Bracketed material added).  \nAfter  the  subject  August  20,  2022,  incident,  Ms.  Faith  called  an  ambulance  and  the \nclaimant  testified  he  was  taken  to  a  University  of  Arkansas  for  Medical  Sciences  (UAMS) \nfacilities, was in the hospital for a couple of days. When the claimant returned to the hospital for \nfollow up on 8/30/2022 – some eight (8) days after the incident at work, he underwent diagnostic \ntesting after which his physician determined he had broken (a closed fracture) his the distal tibia \nin his lower right leg, a closed fracture of his left lower leg, and a, “Compression fracture of L1 \nvertebra,” which the physician described as. “sequalae” of the subject incident of eight (8) days \nprior. Medical records admitted into evidence that on August 31, 2022, some nine (9) days after \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n7 \nthe  marble-lifting  and  falling  incident,  the  claimant  underwent  an  apparent  out-patient  surgical \nprocedure to repair these conditions, his right leg was splinted, his left leg was wrapped, his left \nankle was put in a boot., and was released from the hospital the same day and advised to come \nback in two (2) weeks for follow-up. (T. 24-24-50; Claimant’s Exhibit 1 at 1-24). \nThe  claimant’s  roommate,  Mr. Serapio  Guerrero,  had  known  and  been  friends  with  the \nclaimant for some 30 years, at which time they had known each other in Mexico. The two (2) had \nseen each other again in the United States some four (4) years after they had arrived here; and Mr. \nGuerrero had lived with the claimant approximately two (2) years before the subject August 20, \n2022,  incident,  and  continued  to  live  with  him  thereafter  until  approximately  May  5,  2023. \nAlthough he obviously had very little, if any significant, personal knowledge concerning whether \nand  if  so  to  what  extent  the  claimant  had  an  employment  relationship  with  H.G.  Stone,  he  had \nvisited  Stone’s  premises  approximately  three  (3)  times  where  he  saw  the  claimant  polishing \nkitchen floor marble. Mr. Guerrero testified he witnessed that after the August 20, 2022, injuries, \nhe observed the claimant using a wheelchair to ambulate for a period of time, and saw him in pain, \nand unable to do some things he had been able to do before the work incident. Mr. Guerrero moved \nout in early May 2023. He did the return to visit or see the claimant a few times thereafter, and \nsaid the claimant still appeared to be in some pain. In August 2023 the claimant went to work with \na friend as a transport/cross-country truck driver. (T. 13-24). \nThe  claimant  testified  he  worked  on  two  (2)  occasions  after  the  8/20/2022  incident, \nbetween  Thanksgiving  of  2022,  and  August  1,  of  2023,  he  helped  his  roommate,  who  is  a \ntransporter, do some work. He testified he helped his roommate drive a truck from Arkansas to \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n8 \nUtah,  and  then  from  Arkansas  to  Pennsylvania.  He  said  his  roommate  paid  him  for  these  jobs, \nwhich  meant  that  the  roommate’s  employer  trucking  company  did  not  pay  him  as  either  an \nindependent contractor or an employee. He further testified this work activity was difficult on him, \nand  caused  him  pain.  (T.  32-33).  The  claimant  authenticated  Claimant’s  Exhibit  2,  which  he \nidentified  as  medical  bills  related  to  the  August  22,  2022,  incident  wherein  he  injured  his  right \nlower extremity. (T. 34-35). \nIn August of 2023 the claimant returned to work driving a truck for Harper Construction, \nwhere  he  still  is  employed.  While  he  said  he  still  was  experiencing  pain  after  the  claimant  was \nreleased in mid-October 2022, according to witnesses – namely, Mr. Gomez, Ms. Faith, and Ms. \nMelissa Phelps – all testified they saw the claimant in October and November of 2022, and even \nthereafter between October 2022 and August 2023, and they witnessed no evidence the claimant \nwas disabled in any way, had trouble performing physical activity, nor did he appear to be in any \npain. Ms. Phelps testified she began working with A.G. Stone in mid-February of 2023, after the \nsubject incident, and after the claimant had been released from medical treatment and to return to \nwork. She said she saw the claimant come to the office some time in February 2023, about one (1) \nweek after she had started work with Stone. She testified under oath the claimant came down to \nthe warehouse and was walking around without a cast, walker, or a cane, and he was not limping \nand did not appear to be favoring either of his legs. In Ms. Phelps own words, he, the claimant, \nwas, “Walking just fine.” Ms. Phelps said he also did not complain of any pain or injuries. (T. 64-\n66).  On  cross-examination  when  she  observed  the  claimant  in  2023  February,  “He  seemed \nperfectly fine”, and capable of performing construction work, heavy work, based on her personal \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n9 \nobservations of him. (T. 66). It was also Ms. Phelps understanding the claimant came down to the \nwarehouse  to  work  on  the  vehicles  he  kept  there.  (T.  67).  In  his  testimony,  the  claimant  had \nadmitted he owned the four (4) cars that were on the Stone premises, and that he planned to repair \nthem  and  to  sell  them.  The  claimant  also  admitted  he  had  not  requested  any  medical  treatment \nsince he had been released in 2022 October, and he had not presented himself for treatment to a \ndoctor. (T. 35-48). \nThe claimant, who also happened to be Stone’s next-door neighbor, was a friend, and was \none (1) of the  few folks  who worked with Stone  who had keys to the A.G. Stone  premises and \ncould access the property whenever he wanted to work on his cars. Stone described the claimant \nas a “handyman” who helped around the premises from time to time (although the record is unclear \nas to what exactly his job duties were), but denied he was a A.G. Stone “employee” ( T. 73-74; 69).   \nFinally,  the  evidence  revealed,  as  the  claimant  admitted,  that after the claimant’s  injury \nStone gave the claimant an amount of money equal to one-half (1/2) the amount Stone paid the \nclaimant when he was performing work duties for A.G. Stone. Moreover, Stone gave the claimant \nat least $600 to help him with his medical bills. (T. 35-48; 75-92).      \nDISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n10 \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n9-704(c)(3) (2023 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act  in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987). \nAll claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \nThe  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n11 \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nThe claimant has failed to meet his threshold burden of proof in demonstrating he was an \n“employee” as defined by the applicable law of A.G. Stone on the date of the subject \nincident, August 28, 2022. \n \nOf course, the primary, and indeed, the threshold issue to be decided in this claim before \nwe even reach the issue of whether the claimant has met his burden of proof in demonstrating he \nsustained a “compensable injury” within the Act’s meaning 0n 8/22/2022, is whether the claimant \nwas an “employee” – i.e., whether an employment relationship existed between the claimant and \nStone pursuant to the applicable law on the day of the work incident, 8/22/2022. A total of five (5) \nwitnesses  including  the  claimant  testified  at  the  subject  hearing.  To  say  the  least  the  various \nwitnesses’ testimony was somewhat conflicting on both the relevant issues litigated at the hearing; \nthat is whether an employment relationship existed between the claimant and Stone on 8/22/2022, \nand whether the claimant’s injury to his left lower leg – essentially, a closed fracture of his left \ntibia – constitutes a compensable injury within the Act’s meaning.  \nThe evidence was most contradictory and confusing concerning whether the claimant was \nan employee of Stone on the day of the incident, 8/22/2022. And while both attorneys are highly \nknowledgeable,  professional,  and  did  an  excellent  job  representing  their  client’s  respective \ninterests, since the  claimant has the burden of proof with respect to both  of the  aforementioned \nissues, in light of the contradictory and confusing nature of the relevant testimony, as well as the \ntotal lack of any documentary evidence demonstrating the claimant was Stone’s employee, I am \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n12 \ncompelled to find the claimant has failed to meet his burden of proof on this threshold employment \nrelationship issue.  \nIn affirming the Full Commission’s decision that the claimant was in fact an independent \ncontractor and not an employee, in Davis v. Ed Hickman, P.A., 2020 Ark. App. 188, 598 S.W.3d \n70  (Ark.  App.  2020),  our  court  of  appeals  referred  to  another  of  its  cases, Curry  v.  Franklin \nElectric, 32 Ark. App. 168, 172, 798 S.W.2d 130, 132 (Ark. App. 1990), for the proposition that, \n“[T]he Arkansas General Assembly and not the courts, declares the state’s public policy, and it \ndoes so through its statutes.” In so doing, the court of appeals cited an Arkansas Supreme Court \ncase, Medical Liability Mutual Ins. Co. v. Alan Curtis Enterprises, Inc., 373 Ark. 525, 529, 285 \nS.W.3d 233, 237 (2008), in support of this fundamental and long-standing tenet of the law.  \nWith respect to how Arkansas employers, our courts, and state agencies are to determine \nan individual’s employment status vis-à-vis an alleged employer, in 2019 the Arkansas General \nAssembly expressly declared the state’s public policy with respect to this issue when it passed Ark. \nCode  Ann.  Section  11-1-201, et  seq.  (LexisNexis  2020),  which  is  entitled  the, “Empower \nIndependent  Contractors  Act  of  2019.” Ark.  Code  Ann.  Section  11-1-203  defines  the  term, \n“employment  status”  as  meaning,  “the  status  of  an  individual  as  an  employee  or  independent \ncontractor for employment purposes, including without limitation wages, taxation, and workers’ \ncompensation issues.”  \nArk.  Code  Ann.  Section  11-1-204 states  that  a  person’s  “employment  status”  shall  be \ndetermined using the well-known “20-Factor Test” the Internal Revenue Service (IRS) set forth in \nI.R.S.  Revenue  Ruling  87-41,  1987-1  C.B.  296. Ark.  Code  Ann.  Section  11-1-204(1)-(20) \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n13 \nspecifically enumerates the 20 factors to be used in determining whether a person is an “employee” \nor an “independent contractor.” In addition, in following this statutory guidance as applied to the \nfacts  of  a  specific  case,  one  may  logically  come  to  the  common-sense  legal  conclusion  that \napplication  of  the  factors  to  an  individual  demonstrates  the  person  in  question  is  neither  an \n“employee”  or  an  “independent  contractor”  based  on  the  facts  of  the  situation.  Based  on  the \naforementioned applicable 20-Factor test, I am compelled to find the claimant has failed to meet \nhis threshold burden of proof in demonstrating he is or was an “employee” of A.G. Stone. \nFirst, I must note this is a rather unusual case. In reviewing the 20 factors set forth in the \n20-Factor Test (the Test) codified at Ark. Code Ann. Section 11-1-204(1) - (20), and much of the \nprecedent it has produced in light of Arkansas law, in general, and Act 796 and Arkansas workers’ \ncompensation law in particular, the Test is rather difficult to apply in a case such as this one where \nthe record is largely devoid of a number of the specific facts/factors that a fact-finder must directly \ncompare to the Test in order to render a decision. Second, much of the workers’ compensation law \nprecedent regarding this issue ultimately involves the Commission in effect deciding whether the \nAct’s exclusive remedy provision is invoked.  \n This case involves the owner of a start-up small business which, at the time of the subject \naccident – August 28, 2022 – was conducting so little business that it appears Stone had no full-\ntime  employees,  only  part-time  ones. According to Ms. Michaela Faith, A.G. Stone’s part-time \nbookkeeper at the time, the business treated everyone as an independent contractor, including the \nowner himself. [It should be noted at this time that while, at various pints in her testimony, Ms. \nFaith   used   the   terms   such   as,  “1099  employees”  (somewhat  of  an  oxymoron),  “1099 \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n14 \nsubcontractors”,  and  “subcontractor  employees”  [?],  the  fact  Ms.  Faith  may  have  been  using \nconfusing  and/or  inaccurate  legal  terms  does  not  make  the  claimant  an  employee  when  the \nremainder  of  the  record  is  otherwise  devoid  of  sufficient  evidence  the  claimant  met  the  Test’s \ndefinition of an employee.  \nIt is significant to note the record is in fact effectively devoid of any facts that would lead \none to a finding that he was an employee of A.G. Stone. In fact, the record contains insufficient \nevidence as to exactly what the claimant’s job duties were; from whom he took his direction; who \nsupplied his working orders, tools, or any of the  other facts that demonstrate the claimant more \nlikely than not was an employee. Indeed, the record leads a reasonable fact-finder to the contrary \nconclusion. \nThe claimant worked part-time. He was paid either by cash or check, he said, yet he could \nproduce no evidence to corroborate that A.G. Stone paid him by check. The claimant appears to \nhave operated his own business on the claimant’s premises, and did as he pleased most of the time. \nThe  A.G.  Stone  owner  referred  to  the  claimant  as  a  “handyman”,  which  does  not  connote  an \nemployee but rather a person the owner called to assist with certain jobs when he had them and \nneeded help. The record in fact connotes that the owner tried to help the claimant by allowing him \nto  operate  a  business  on  his  premises,  and  paid  him  money  from  time  to  time  as  opposed  to  a \nregular salary. The preponderance of the credible evidence of record reveals the claimant had not \nbeen instructed to help in any way – and did not even have any reason to be in the area where and \nwhen the subject incident happened. Even after the incident, the claimant asked Stone for money, \nand  Stone  paid  him  one-half  (1/2)  of  the  amount  he  usually  paid  him  when  he  was  performing \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n15 \nwhat appears to be intermittent work at best, and Stone even gave his “friend” and “neighbor” \nsome $600 to help pay his medical expenses.  \nOn these sparse facts it would constitute sheer speculation and conjecture for me to find \nthe claimant met the statutory 20-Factor Test in proving he was an employee of A.G. Stone and, \nof  course,  speculation  and  conjecture  will  not  and  cannot  support  a  claim  for  benefits. \nConsequently, if the claimant has a legal remedy against Stone, it does not exist pursuant to the \nAct and the Commission. \nTherefore, for the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed September 21, 2023, which \nthe parties affirmed on the record at the hearing, hereby are accepted as facts.  \n \n2. The  claimant  has  failed  to  meet  his  burden  of  proof  in  demonstrating  he  was  an \n“employee” of A.G. Stone – i.e., that an employment relationship existed between \nhim and A.G. Stone – on the day of the subject incident, August 28, 2022. Quite \nsimply,  the  record  is  devoid  of  sufficient  facts  to  determine  exactly  what  the \nclaimant’s actual job duties were, and who controlled his work, etc., much less other \nfacts that meet the applicable law’s 20-Factor test for determining who is and is not \nan employee. \n \n3. Since the claimant was not an “employee” of A.G. Stone on August 28, 2022, the \nday of the incident in question, the issue of compensability is rendered moot.  \n \n4. The claimant’s attorney is not entitled to a fee on these facts.  \n \nWHEREFORE, this claim is denied and dismissed subject to the parties’ statutory appeal \nrights. If they have not already done so, the respondents shall pay the court reporter’s invoice \nwithin ten (10) days of their receipt of this hearing and order.  \n\nTrinidad Torres Rivera, AWCC No. H302395 \n \n \n \n16 \n     IT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":29955,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302395 TRINIDAD TORRES RIVERA, EMPLOYEE CLAIMANT A.G. STONE, EMPLOYER RESPONDENT UNINSURED/ARKANSAS WORKERS’ COMPENSATION COMMISSION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 13, 2024 Hearing conducted before the Arkansas Workers’ Compensati...","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:1","granted:1","denied:2"],"injuryKeywords":["back","lumbar","fracture","ankle"],"fetchedAt":"2026-05-19T22:57:22.840Z"},{"id":"alj-H302925-2024-02-13","awccNumber":"H302925","decisionDate":"2024-02-13","decisionYear":2024,"opinionType":"alj","claimantName":"Tonya Banks","employerName":"B D E Investments, LLC","title":"BANKS VS. B D E INVESTMENTS, LLC AWCC# H302925 & H302926 FEBRUARY 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BANKS_TONYA_H302925_H302926_20240213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BANKS_TONYA_H302925_H302926_20240213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H302925 and H302926 \n \nTONYA BANKS, EMPLOYEE         CLAIMANT \n \nB D E INVESTMENTS, LLC, EMPLOYER           RESPONDENT \n \nACCIDENT FUND GENERAL INS. CO, CARRIER/TPA         RESPONDENT \n            \nOPINION FILED FEBRUARY 13, 2024 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on February 13, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by Ms. Karen H. McKinney, Attorney-at-Law of Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above-styled matter on February 13, 2024, in Little Rock, \nArkansas on respondents’ Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’  Compensation \nAct.  The claimant was pro se and failed to appear for the hearing.  The claimant had filed \nmultiple Form AR-C’s in H302925 with the initial Form AR-C filing marked on or about  on \nMay 5, 2023.  The First Report of Injury in regard to this claim was filed on May 10, 2023, \nproviding that the claimant had been run into and she,  “hit machinery injuring abdomen \nand pelvic  area.”    The  Form  AR-2  filed  on  May  17,  2023,  provided  that  the  claim  was \naccepted as medical only and the claimant did not miss any work.   \nIn regard to the claim filed as H302926, the claimant contended that she injured \nmultiple body parts including her shoulder.  The First Report of Injury was filed on May \n17, 2021, stating that the claimant was injured while driving a vehicle, and the Form AR-\n\n2 filed on the same date, denied the claim. The claimant was originally represented by \nMr. Mark Alan Peoples on both claims and he was allowed to withdraw by an Order from \nthe Full Commission dated August 25, 2023.   A Motion to Dismiss was filed on November \n21,  2023,  requesting  that  the  matter  be  dismissed  for  failure  to  prosecute  pursuant  to \nCommission Rule 099.13 and Ark. Code Ann. § 11-9-702.  The claimant has not requested \na hearing to date and more than six (6) months have passed since the filing of the original \nclaim.   \n Appropriate notice was provided to the claimant notifying her that a hearing on the \nMotion to Dismiss was set for February 13, 2024, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nKaren H. McKinney appeared on behalf of the respondents and asked that the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent,  I  find  that  this  matter  should  be  dismissed  without  prejudice,  for failure  to \nprosecute  pursuant  to  Ark.  Code  Ann.  §  11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthese claims in their entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3275,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302925 and H302926 TONYA BANKS, EMPLOYEE CLAIMANT B D E INVESTMENTS, LLC, EMPLOYER RESPONDENT ACCIDENT FUND GENERAL INS. CO, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 13, 2024 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pul...","outcome":"dismissed","outcomeKeywords":["dismissed:7","denied:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:57:24.905Z"},{"id":"alj-H303023-2024-02-13","awccNumber":"H303023","decisionDate":"2024-02-13","decisionYear":2024,"opinionType":"alj","claimantName":"Kimberly Broughton","employerName":"Conway County Center For Exceptional Children, Inc","title":"BROUGHTON VS. CONWAY COUNTY CENTER FOR EXCEPTIONAL CHILDREN, INC. AWCC# H303023 FEBRUARY 13, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BROUGHTON_KIMBERLY_H303023_20240213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BROUGHTON_KIMBERLY_H303023_20240213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303023 \nKIMBERLY BROUGHTON, EMPLOYEE       CLAIMANT \n \nCONWAY COUNTY CENTER FOR EXCEPTIONAL  \nCHILDREN, INC., EMPLOYER                RESPONDENT \n \nATA WORKERS’ COMP SI TRUST, CARRIER/TPA           RESPONDENT \n            \nOPINION FILED FEBRUARY 13, 2024 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on February 13, 2024. \n \nClaimant is pro se and failed to appear. \n \nRespondents  are  represented  by  Mr.  Jarrod  S.  Parrish,  Attorney-at-Law  of Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above-styled matter on February 13, 2024, in Little Rock, \nArkansas on respondents’ Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’  Compensation \nAct.  The claimant was pro se and failed to appear for the hearing.  The claimant had filed \na Form AR-C on May 10, 2023, contending that she had injured her back, left knee, and \nwhole body   The First Report of Injury in regard to this claim was filed on May 11, 2023, \nproviding  that  the  claimant contended  she  had  been  sitting  on  the  claimant’s  transport \nbus two (2) days earlier assisting clients as a rider and they were hit by another vehicle, \ncausing  the  claimant  to  fall  out  of  her  seat.  The  Form  AR-2  filed  on  May  11,  2023, \nprovided that the claim was a medical only claim and all benefits were being paid.   \nThe claimant was originally represented by Laura Beth York who was allowed to \nwithdraw  by  an  Order  from  the  Full  Commission  dated  May  25,  2023.      A  Motion  to \nDismiss  was  filed  on  November 13,  2023,  requesting  that  the  matter  be  dismissed  for \n\nfailure to prosecute pursuant to Commission Rule 099.13 and Ark. Code Ann. §11-9-702.  \nThe  claimant  has  not  requested  a  hearing  to  date  and  more  than  six  (6)  months  have \npassed since the filing of the original claim nor is there any record of her contacting the \nCommission after the date her attorney was allowed to withdraw.   \n Appropriate notice was provided to the claimant notifying her that a hearing on the \nMotion to Dismiss was set for February 13, 2024, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nJarrod S. Parrish appeared on behalf of the  respondents and asked that the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent,  I  find  that  this  matter  should  be  dismissed  without  prejudice,  for failure  to \nprosecute  pursuant  to  Ark.  Code  Ann.  §  11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3225,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303023 KIMBERLY BROUGHTON, EMPLOYEE CLAIMANT CONWAY COUNTY CENTER FOR EXCEPTIONAL CHILDREN, INC., EMPLOYER RESPONDENT ATA WORKERS’ COMP SI TRUST, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 13, 2024 Hearing before Administrative Law Judge James D. Kenned...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["back","knee"],"fetchedAt":"2026-05-19T22:57:26.968Z"},{"id":"full_commission-H106980-2024-02-12","awccNumber":"H106980","decisionDate":"2024-02-12","decisionYear":2024,"opinionType":"full_commission","claimantName":"Travis Evans","employerName":"Arkansas Department Of Transportation","title":"EVANS VS. ARKANSAS DEPARTMENT OF TRANSPORTATION AWCC# H106980 FEBRUARY 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Evans_Travis_H106980_20240212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Evans_Travis_H106980_20240212.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H106980 \n \nTRAVIS EVANS,  \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF \nTRANSPORTATION, EMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nCARRIER \nRESPONDENT \n \nOPINION FILED FEBRUARY 12, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, Attorney \nat Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. \nMCLEMORE, Attorney at Law, Little Rock, Arkansas. \n \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n The respondents appeal and the Claimant cross-appeals an opinion \nand order of the Administrative Law Judge filed May 31, 2023.  In said \norder, the Administrative Law Judge made the following findings of fact and \nconclusions of law:  \n1.  The stipulations agreed to by the parties at a pre-hearing  \n      conference conducted on March 1, 2023 and contained  \n      in a pre-hearing order filed that same date are hereby  \n      accepted as fact. \n                \n 2. Claimant has met his burden of proving by a preponderance of     \n               the evidence that he suffered a compensable injury to his          \n\nEVANS- H106980   2\n  \n \n \n               lumbar spine on August 18, 2021. Claimant has failed to prove    \nby preponderance of the evidence that he suffered a \ncompensable injury to his pelvis or left hip on August 18, 2021 or \nthat those are compensable consequences of his left leg injury. \n \n3.  Respondent is liable for payment of all reasonable and necessary \n     medical treatment provided in connection with the claimant’s   \n     lumbar spine injury. \n \n4. Claimant has met his burden of proving by a preponderance  \n    of the evidence that he is entitled to temporary total disability  \n    benefits beginning October 12, 2022 and continuing through   \n    March 27, 2023. \n  \n 5. Claimant did not fail to give notice of his injury pursuant to  \n               A.C.A.§11-9-701.   \n \n6. Respondent is entitled to a credit for temporary total disability  \n    benefits claimant was paid subsequent to his return to work on  \n    December 2, 2021. \n \n7. Respondent has controverted claimant’s entitlement to all unpaid  \n    indemnity benefits.    \n                        \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's May 31, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n\nEVANS- H106980   3\n  \n \n \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents \n \n \nDISSENTING OPINION \n \n\nEVANS- H106980   4\n  \n \n \nI respectfully dissent from the Majority’s Opinion.  In my de novo \nreview of the file, I find that the claimant has failed to prove by a \npreponderance of the credible evidence that he sustained a compensable \ninjury to his lumbar spine on August 18, 2021.  Thus, the claimant is not \nentitled to medical treatment or temporary total disability benefits beginning \nOctober 12, 2022, and continuing through March 27, 2023, due to the \nalleged lumbar injury.  I also find the claimant failed to give notice of his \nalleged lumbar injuries pursuant to Ark. Code Ann. §11-9-701. \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  This, therefore, requires that a claimant establish by a \npreponderance of the evidence: (1) an injury arising out of and in the course \nof employment; (2) that the injury caused internal or external physical harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings establishing an \ninjury as defined in Ark. Code Ann. §11-9-102(16) and; (4) that the injury \nwas caused by a specific incident identifiable by time and place of \noccurrence.  Ark. Code Ann. § 11-9-102(4)(A)(i). \nHowever, a compensable injury may also arise as a compensable, or \nnatural, consequence of a prior specific incident injury.  If an injury is \n\nEVANS- H106980   5\n  \n \n \ncompensable, then every natural consequence of that injury is also \ncompensable.  Martin Charcoal, Inc. v. Britt,  102 Ark. App. 252, 284 S.W.3d \n91 (2008).  The basic test is whether there is a causal connection between \nthe two episodes.  Walker v. Fresenius Med. Care Holding, Inc., 2014 Ark. \nApp. 322, 436 S.W.3d 164 (2014). \nAt the May 15, 2023 hearing, the claimant testified that the injuries \nsustained during his August 2021 fall involved his left leg, stating \nI tore the hamstring somewhere up \nin my hip.  It feels like maybe about \nthe center of my backside.  It hurts \nall the way from my belt loop down \ninto the back of my knee and then \nover  the  side  of  my  knee.    (Hrng. \nTr., P. 10). \n \nAt the time, this was diagnosed as a left hamstring strain by Dr. \nChristopher Bell in the emergency room.  (Resp. Ex. 1, Pp. 7-12). Later, Dr. \nBryan Smith, an orthopedic surgeon with Mercy Clinic in Fort Smith, \nobtained an MRI of the claimant’s left lower extremity, and in a report dated \nAugust 26, 2021 opined that the findings were consistent with a complete \ntear of the biceps femoris tendon.  (Resp. Ex. 1, Pp. 16-17).  After returning \nto work, the claimant had a second incident when his left hamstring began \nto hurt and “. . . the back of my knee just felt like it opened up like there \nwasn’t nothing holding it. It got to hurting and popping.”  (Hrng. Tr., Pp. 13-\n14).  The claimant believes this incident was a continuation of his initial \n\nEVANS- H106980   6\n  \n \n \nAugust 2021 injury. Id.  Dr. Smith ordered a repeat MRI on the claimant’s \nleft knee which was performed on May 4, 2022 and showed no evidence of \ninternal derangement.  (Resp. Ex. 1, Pp. 46-51).  After Dr. Smith performed \na left knee arthroscopy, anterior compartment fat pad debridement, \nchondroplasty patella and medial plica excision on May 18, 2022, he \nrecommended that the claimant began treating for his lumbar spine in \nSeptember 2022 in order to “rule out any compressive lesion that may be \ncontributing to this.”  (Cl. Ex. 1, P. 22; Resp. Ex. 1, Pp. 54-56). \nIt is important to note that the claimant did not seek medical \ntreatment for his lumbar spine complaints until September 29, 2022, over a \nyear after his initial injury. An MRI conducted on that date revealed “ 1. \nMild-moderate degenerative change throughout the lumbar spine.  2. Small \nbroad-based disc protrusion eccentric to the right at L5-S1.”  (Resp. Ex. 1, \nP. 66).  In March 2023, Dr. William M. Rambo Jr., a neurologist with Mercy \nClinic in Fort Smith, opined that the claimant “has been thoroughly \nevaluated and treated since his work-related injury in 2021.  I think his pain \nis probably multifactorial including hamstring and knee etiologies.  Arguing \nagainst a radiculopathy is that his pain stops at his knee and his MRI \nfindings are mild and mostly right-sided.”  (Cl. Ex. 1, P. 39). Dr. Rambo \ndiagnosed the claimant with “[s]pondylosis of lumbar region without \nmyelopathy or radiculopathy” and noted that the claimant’s September 2022 \n\nEVANS- H106980   7\n  \n \n \nMRI revealed “mild to moderate degenerative disc changes at L5-S1 with \nright lateral recess stenosis possibly due to a calcified disc protrusion. \nThere is also some lateral recess stenosis which is more mild, at L4-L5 \nspecifically.”  (Cl. Ex. 1, P. 38).  Dr. Rambo was unwilling to provide the \nclaimant with any disability or work restrictions.  (Cl. Ex. 1, P. 39). \nFrom these records and the claimant’s own testimony, it is clear that \nthe claimant’s lumbar spine complaints did not arise as a result of his \nAugust 2021 fall.  The claimant’s only complaints at that point regarded the \narea from his “belt loop down into the back of my knee.”  None of the \nclaimant’s pain led his treating physicians to believe the source could be \nanything other than his knee and hamstring until September 19, 2022 at the \nearliest.  The claimant sought no treatment for his lumbar spine until over a \nyear after his injury.  There is no evidence, objective or otherwise, that \nwould lead to the conclusion that the claimant’s low back symptoms \ndeveloped as a result of the August 2021 event. \nThere is also no evidence that the claimant’s lumbar spine issues \nresulted as a consequence of his August 2021 fall.  The claimant has \ntreated with two physicians, Dr. Smith and Dr. Rambo, regarding his low \nback and neither stated that the claimant’s condition is at all related to his \nleft knee injury within any degree of medical certainty.  In fact, Dr. Rambo \ndetermined that the claimant’s spinal condition trends to the right-hand side, \n\nEVANS- H106980   8\n  \n \n \naway from the location of the claimant’s complaints.  Ultimately, the weight \nof the medical evidence shows that the claimant’s back condition is largely \ndegenerative in nature.  In fact, each of the conditions Dr. Rambo \ndiagnosed the claimant with were chronic in nature, including spondylosis, \nright lateral stenosis, and degenerative disc changes.  The medical \nevidence is clear that the claimant’s condition is chronic and degenerative \nrather than being related to his fall on August 18, 2021.  For these reasons, \nthe claimant is not entitled to benefits related to his lumbar spine condition. \nThe claimant did not provide proper notice of his lumbar spine injury. \nUnder our Rules, a claimant is required to provide timely notice of any injury \nto her employer. Arkansas Code Annotated § 11-9-701(a)(1) provides that: \nUnless an injury either renders the \nemployee physically or mentally \nunable to do so, or is made known \nto the employer immediately after it \noccurs, the employee shall report \nthe injury to the employer on a \nform prescribed or approved by the \nWorkers’ Compensation \nCommission and to a person or at \na place specified by the employer, \nand the employer shall not be \nresponsible for disability, medical, \nor other benefits prior to receipt of \nthe employee's report of injury. \n \nThe  claimant  provided  no  notice  of  having  an  injury  to  his  low  back \nuntil  November  16,  2022.    This  contention  would  later  change  on  May  8, \n2023, when the claimant alleged injuries to his left lower extremity, back, left \n\nEVANS- H106980   9\n  \n \n \nhip, and pelvis. The claimant’s previous reports of injuries only addressed his \nleft lower extremity. At no point was the claimant unable to report an injury, \nas  he  had  done  so  on  two  prior  occasions.  We  cannot  construe  that  the \nrespondents have the burden of guessing what injuries a claimant may ever \nallege. Because the claimant did not give timely notice of these complaints, \nthe  respondents  cannot  be  held  responsible  for  benefits  relating  to  the \nclaimant’s  low  back  prior  to  the  claimant  providing  proper  notice  on \nNovember 16, 2022, even if the back claim is found to be compensable.  \nAccordingly, for the reasons set forth above, I must respectfully \ndissent. \n   _______________________________ \nMICHAEL R. MAYTON, Commissioner","textLength":12475,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H106980 TRAVIS EVANS, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF TRANSPORTATION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER RESPONDENT","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["lumbar","hip","back","knee","strain"],"fetchedAt":"2026-05-19T22:29:45.947Z"},{"id":"alj-H208422-2024-02-12","awccNumber":"H208422","decisionDate":"2024-02-12","decisionYear":2024,"opinionType":"alj","claimantName":"Marlis Scott","employerName":"Core Mark Holding Co., Inc","title":"SCOTT VS. CORE MARK HOLDING CO., INC. AWCC# H208422 FEBRUARY 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Scott_Marlis_H208422_20240212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Scott_Marlis_H208422_20240212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208422 \n \n \nMARLIS M. SCOTT, EMPLOYEE CLAIMANT \n \nCORE MARK HOLDING CO., INC., \nEMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 12, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 9, 2024, in \nForrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Rick  Behring,  Jr.,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  February  9,  2024,  in \nForrest  City,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  was  Respondents’  Exhibit  1,  pleadings,  correspondence \nand forms related to this claim, consisting of  33 numbered pages.  Also, in order \nto  address  adequately  this  matter  under  Ark.  Code  Ann.  § 11-9-705(a)(1)  (Repl. \n2012)(Commission  must “conduct  the  hearing    .  .  .  in  a  manner  which  best \nascertains the rights of the parties”), and without objection, I have blue-backed to \nthe  record  documents from  the  Commission’s  file  on the  claim,  consisting  of  two \n\nSCOTT – H208422 \n \n2 \n \npages.   In accordance  with Sapp  v.  Tyson  Foods,  Inc.,  2010  Ark. App.  517, ___ \nS.W.3d  ___,  these  documents  have  been  served  on  the  parties  in  conjunction \nwith this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  December  14,  2022, \nClaimant purportedly suffered an injury to his lower extremity at work on October \n21, 2022, when a stack of pallets fell over and struck him.  According to the Form \nAR-2  that  was  filed  on March  14,  2023,  Respondents  denied  the  claim  due  to, \ninter alia, the lack of medical evidence. \n On  December  1,  2022,  through  then-counsel  Laura  Beth  York,  Claimant \nfiled  a  Form  AR-C.    Therein, he alleged  that he was  entitled  to  the  full  range  of \ninitial  and  additional  benefits  as  a  result  of  compensable  injuries  that  he  had \nsustained to his lower back, right leg, right ankle, left foot, and “other whole body.”  \nNo hearing request accompanied this filing.   Respondents propounded discovery \nto Claimant on May 11, 2023.  But responses thereto remained outstanding. \n On October 10, 2023, York moved to withdraw from the case.  In an Order \nended  on  October  24,  2023,  the  Full  Commission  granted  the  motion  under \nAWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nNovember 28, 2023.   On  that date,  Respondents  filed the  instant motion, asking \nfor dismissal of the claim under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 \n\nSCOTT – H208422 \n \n3 \n \n(Repl.  2012).    My  office  wrote  Claimant  on  November 28,  2023,  asking  for  a \nresponse  to  the  motion  within  20  days.    The  letter  was  sent  by  first  class and \ncertified  mail  to  the  Marianna  address  of  Claimant  listed  in  the  file  and  his  Form \nAR-C.  Claimant signed for the certified letter on December 2, 2023; and the first-\nclass  letter  was  not  returned.    Regardless,  no  response  from  Claimant  to  the \nmotion  was  forthcoming.    On  December  21,  2023,  a  hearing  on  the  Motion  to \nDismiss  was  scheduled  fo r  February  9,  2023,  at  10:30  a.m.  at  the  St.  Francis \nCounty Courthouse in Forrest City.  The notice was sent to Claimant via first-class \nand certified mail to the same address as before.  As before, Claimant signed for \nthe  certified  letter,  on  December  26,  2023;  and  the  first-class  letter  was not \nreturned to the Commission. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary  9,  2023.  Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  the \naforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nSCOTT – H208422 \n \n4 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial  benefits is \nhereby dismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nSCOTT – H208422 \n \n5 \n \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the February 9, 2023, hearing to argue against \nits dismissal) since the  filing of his Form AR-C on December 1, 2022.   Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the application of § 11-9-702. \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  appellate  courts  have \nexpressed  a  preference  for  dismissals without  prejudice.   See Pr  ofessional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nSCOTT – H208422 \n \n6 \n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7706,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208422 MARLIS M. SCOTT, EMPLOYEE CLAIMANT CORE MARK HOLDING CO., INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED FEBRUARY 12, 2024 Hearing before Administrative Law Judge O. Milton Fine II on February 9, 2024, in F...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["back","ankle"],"fetchedAt":"2026-05-19T22:57:18.565Z"},{"id":"alj-H102239-2024-02-09","awccNumber":"H102239","decisionDate":"2024-02-09","decisionYear":2024,"opinionType":"alj","claimantName":"Sandra Scott","employerName":"Ark. Ent. For The Dev. Disabled","title":"SCOTT VS. ARK. ENT. FOR THE DEV. DISABLED AWCC# H102239 FEBRUARY 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Scott_Sandra_H102239_20240209.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Scott_Sandra_H102239_20240209.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H102239 \n \n \nSANDRA K. SCOTT, EMPLOYEE CLAIMANT \n \nARK. ENT. FOR THE DEV. DISABLED, \n SELF-INSURED EMPLOYER RESPONDENT \n \nRISK MGMT. RESOURCES, \n THIRD-PARTY ADMR. RESPONDENT \n \n \nOPINION FILED FEBUARY 9, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 8, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Ms.  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    The  evidentiary  record  consists  Respondents’  Exhibit  1,  forms, \npleadings, and correspondence related to this claim, consisting of one index page \nand  12  numbered  pages  thereafter.    Also,  in  order  to  address  adequately  this \nmatter  under  Ark.  Code  Ann.  § 11-9-705(a)(1)  (Repl.  2012)(Commission  must \n“conduct  the  hearing    .  .  .  in  a  manner  which  best  ascertains  the  rights  of  the \nparties”),   I   have   blue-backed   to   the   record   certain   documents   from   the \nCommission’s  file  on  the  claim,  consisting  of  three  pages.    In  accordance  with \nSapp v. Tyson Foods, Inc., 2010 Ark. App. 517, ___ S.W.3d ___, this blue-backed \nexhibit has been served on the parties in conjunction with this opinion. \n\nSCOTT – H102239 \n \n2 \n The  record  reflects  the  following  procedural  history:   On  March  3,  2021, \nClaimant  filed  her  first  Form AR-C  in  connection  with  this  matter.    Therein,  she \nalleged that  she injured her left shoulder at work on  January 9, 2020, and asked \nfor the full range of initial benefits.  This was expanded to include the full range of \nadditional  benefits  in  a  second  Form  AR-C,  filed  on  her  behalf  by  her  then-\ncounsel, Laura Beth York, on March 23, 2021. \n The claim was heard before the undersigned on September 23, 2021.  On \nNovember  29,  2021,  an  opinion  was  issued  thereon  that  contained  the  following \nFindings of Fact and Conclusions of Law: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The  stipulations  set  forth  above  are  reasonable  and  are  hereby \naccepted[:] \na.  The   employer/employee/carrier   relationship   existed   at   all \nrelevant  times,  including  January  9,  2020,  when  Claimant \nsustained  a  compensable  injury  to  her  left  shoulder  in  the \nform of a sprain. \nb.  Claimant’s  average  weekly  wage  of  $845.45  entitles  her  to \ncompensation rates of $563.00/$422.00. \nc. In the event that Claimant is found to be entitled to temporary \ntotal  disability  benefits,  the  parties  will  be  able  to  confer  and \n\nSCOTT – H102239 \n \n3 \nagree on the applicable dates for which she would be entitled \nto such benefits. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that \nshe sustained a compensable left shoulder injury by specific incident \nin the form of a rotator cuff tear. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that \nshe  is  entitled  to  reasonable  and  necessary  treatment  of  her  left \nrotator cuff tear. \n5. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that \nshe is entitled to temporary total disability benefits. \n6. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that \nshe is entitled to a controverted attorney’s fee under Ark. Code Ann. \n§ 11-9-715 (Repl. 2012). \nThereafter, on December 9, 2021, York filed a motion to withdraw from the case.  \nIn  an  order  entered  on  December  21,  2021,  the  Full  Commission  granted the \nmotion under AWCC Advisory 2003-2. \n Claimant,  now pro  se,  pressed  on  with  her  appeal  of  the  decision  by  the \nundersigned.    On  August  22,  2022,  the  Full  Commission  entered  an  opinion  in \nwhich it reversed the administrative law judge opinion.  See Scott v. Ark. Ent. for \nthe Dev. Disabled, 2022 AR Wrk. Comp. LEXIS _____, Claim No. H102239 (Full \nCommission  Opinion  filed  August  22,  2022).    This,  in  turn,  was  appealed  to  the \nArkansas Court of Appeals.  On October 25, 2023, the court reversed the ruling of \n\nSCOTT – H102239 \n \n4 \nthe Full Commission.  See Ark. Enters. for the Developmentally Disabled v. Scott, \n2023 Ark. App. 468, 676 S.W.3d 386.  This essentially left Claimant strictly with an \naccepted claim for a left shoulder sprain. \n Respondents  on  November  29,  2023,  moved  for  a  dismissal  of  the  claim \nwithout  prejudice  under  AWCC  R. 099.13  and  Ark.  Code  Ann.  § 11-9-702  (Repl. \n2012)  because  of,  inter  alia,  Claimant’s  alleged  failure  to  make  a  bona  fide \nhearing  request  within  the  previous  six  months.    My  office  wrote  Claimant on \nNovember 30,  2023,  asking  for  a  response  to  the  motion  within 20  days.    The \nletter was sent via first-class and certified mail to the Benton address for Claimant \nlisted in the file and on her Forms AR-C.  Claimant signed for the certified letter on \nDecember 2,  2023;  and  the  first-class mailing  was  not  returned.  Regardless, no \nresponse to the Motion to Dismiss was forthcoming from her. \n On  January  3,  2024,  I  scheduled  a  hearing  on  the  Motion  to  Dismiss  for \nFebruary  8,  2024,  at  9:30  a.m.  at  the  Commission  in  Little  Rock.    The  Notice of \nHearing was sent to the parties by first-class and certified mail.  In this instance, \nthe  certified  letter  went  unclaimed;  but  as  before,  the  first-class  mailing  was  not \nreturned.  Thus, the evidence preponderates that Claimant received notice of the \nhearing. \n The  hearing  on  the  motion  proceeded  as  scheduled.  Again,  Claimant \nfailed to appear at the hearing.  But Respondents appeared through counsel and \nargued for dismissal under the aforementioned authorities. \n\nSCOTT – H102239 \n \n5 \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  her \nclaim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby  dismissed \nwithout prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal  of the \n\nSCOTT – H102239 \n \n6 \nclaim–by  a  preponderance  of  the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin  pursuit  of it  (including  appearing  at  the  February  8,  2024,  hearing  to  argue \nagainst  its  dismissal)  since  the  mandate  issued  from  the  Arkansas  Court  of \nAppeals   on   November   28,   2023.      Thus,   the   evidence   preponderates   that \ndismissal is warranted under Rule 13.  Because of this finding, it is unnecessary \nto address the applicability of Ark. Code Ann. § 11-9-702 (Repl. 2012). \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  Appellate  Courts have \nexpressed  a  preference  for  dismissals without  prejudice.   See Pr  ofessional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \n\nSCOTT – H102239 \n \n7 \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim for additional benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":9477,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H102239 SANDRA K. SCOTT, EMPLOYEE CLAIMANT ARK. ENT. FOR THE DEV. DISABLED, SELF-INSURED EMPLOYER RESPONDENT RISK MGMT. RESOURCES, THIRD-PARTY ADMR. RESPONDENT OPINION FILED FEBUARY 9, 2024 Hearing before Administrative Law Judge O. Milton Fine II on February...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["shoulder","sprain","rotator cuff"],"fetchedAt":"2026-05-19T22:57:16.504Z"},{"id":"full_commission-H206962-2024-02-08","awccNumber":"H206962","decisionDate":"2024-02-08","decisionYear":2024,"opinionType":"full_commission","claimantName":"James Godwin","employerName":"Mid South Milling Company, Inc","title":"GODWIN VS. MID SOUTH MILLING COMPANY, INC. AWCC# H206962 & H206963 FEBRUARY 8, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Godwin_James_H206962-H206963_20240208.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Godwin_James_H206962-H206963_20240208.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NOS.  H206962 & H206963  \n \nJAMES G. GODWIN, \nEMPLOYEE \n \nCLAIMANT \nMID SOUTH MILLING COMPANY, INC.,  \nEMPLOYER \n \nRESPONDENT \nTRAVELERS INDEMNITY COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED FEBRUARY 8, 2024  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE JARID M. KINDER, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed July \n20, 2023.  The administrative law judge found that the claimant failed to \nprove he sustained a compensable injury.  After reviewing the entire record \nde novo, the Full Commission finds that the claimant proved he sustained \ncompensable scheduled injuries on August 5, 2022 and September 2, \n2022.  We find that the claimant proved he was entitled to temporary total \ndisability benefits beginning September 23, 2022 and continuing until \nDecember 8, 2022.   \nI.  HISTORY \n\nGODWIN - H206962 & H206963   2\n  \n \n \n James Godwin, now age 55, testified that he became employed with \nthe respondents, Mid-South Milling Company, in February 2019.  The \nparties stipulated that the employee-employer-carrier relationship existed \non August 5, 2022.  The claimant testified on direct examination: \n Q.  And what all did you do for Mid-South? \nA.  Mixing room operator and for a short time a front end \nloader operator.   \nQ.  Now, for the purpose of why we are here, what job were \nyou doing whenever the injury occurred? \nA.  Mixing room operator.... \nQ.  Well, let’s go to why we are here today, which is actually \nthat injury, and it is my understanding that you had a lower \nextremity injury to the right side on August 5\nth\n.  Is that correct? \nA.  Yes. \nQ.  What happened? \nA.  The equipment had choked down and after we unchoked, I \nbelieve it was a hammer mill, you turn the equipment on \nbackwards to where it starts.  From there after, wherever the \nmaterial is going, one piece of equipment at a time.  I would \nrun back and forth to the door and, you know, make sure \nthere is nothing squealing and everything is running.  And I hit \na switch, turn on the one particular screw and I got to the \ndoor.  The belts are squealing, you know, it was still choked \nup.  So I turn around and, you know, try to get back to the \nswitch as soon as I could, but the first step I took on my right \nfoot, you know, I felt something give.  I fell to the floor and that \nday I found out it was a partial tear to my Achilles tendon.... \nQ.  So were you sitting down before this incident occurred or \nwere you standing? \nA.  I was standing.   \nQ.  Okay.  And you turned to run to shut a piece of machinery \ndown.  Is that my understanding? \nA.  Yes.   \nQ.  Okay.  And how fast were you going whenever you were \ngoing to shut this piece of machinery down? \nA.  It was like the first or second step.  You know, kind of like \nyou are in a hurry.  You’ve got to get there now.  So I pivoted \n\nGODWIN - H206962 & H206963   3\n  \n \n \nand put all of my weight on my right foot and that is when it \nhappened.   \nQ.  Were you in a hurry at this point? \nA.  Yes. \nQ.  Why were you in a hurry? \nA.  To shut the equipment down.... \nQ.  Could you walk at that point? \nA.  No.  It was five to 10 minutes before I could get up.   \nQ.  So after these five to 10 minutes go by, what did you do? \nA.  I went to Ben Smith’s office.  I told him what happened.  \nTold him I was going to the hospital.   \nQ.  Did you immediately go to the hospital that day? \nA.  Yes.    \n \nBenjamin Glen Smith testified that he was the respondent-\nemployer’s Operations and Plant Manager.  The respondents’ attorney \nexamined Ben Smith: \nQ.  Now, you’ve heard his description of some events that he \nclaims happened at work.  Is that correct? \nA.  I have heard them, yes.   \nQ.  Now, were you present on August the 5\nth\n of 2022? \nA.  Yes, I was.... \nQ.  Now, do you remember any conversation with Mr. Godwin \non that particular day about an injury or an event that occurred \nat work? \nA.  I do not.   \nQ.  Okay.  Tell me what you do remember about that \nparticular day.   \nA.  On that first said date, he did not come into the office at all.  \nHe actually went to his vehicle and I assume went to get a \ndoctor’s advice or whatever it was, but he basically tried \ncalling and ended up sending a text message to my assistant \nplant manager stating that he had to leave.   \nQ.  Did he describe what he had to leave? \nA.  At that time, no. \nQ.  Had there been any description to you or to anyone else \nclaiming that he was actually injured at work? \nA.  No.   \n\nGODWIN - H206962 & H206963   4\n  \n \n \nQ.  Okay.  So when he described today in the courtroom \nabout coming to your office and telling you what had \nhappened and then telling you he was going to go to the \nemergency room, did any of that happen on August the 5\nth\n? \nA.  No.... \nQ.  Now, before August the 5\nth\n of 2022, did you observe the \nclaimant? \nA.  I had. \nQ.  Was he having any problems walking at that particular \ntime? \nA.  He’s always had issues walking, but for a few months \nbefore that he was definitely hobbling around.   \nQ.  Okay.  And was he noticeably limping or having difficulty \ngetting from station to station? \nA.  Yes.  He has always had difficulty getting from station to \nstation.... \nQ.  Now, at any point in time on August the 5\nth\n of 2022, did he \never come to you complaining of the problem that occurred at \nwork? \nA.  He had not.   \n \n According to the record, however, the claimant treated at Mercy \nHospital Fort Smith on August 5, 2022.  The claimant complained of an \n“Ankle injury” and “Leg Pain (PT complains of right posterior leg pain that \nbegins at ankle region and extends up his posterior leg.  This began to \nbother him 6 weeks ago.  But significantly worsened.  Pt fell after feeling \nsomething move in his leg give out.  Alert and Oriented x 4).  The diagnosis \nincluded “Partial tear of Achilles tendon, initial encounter.”   \nDr. Seth Bartholomew reported on August 5, 2022: \nJames Godwin is a 54-year-old man who presents emergency \ndepartment today with complaints of right heel and leg pain.  \nPatient states he’s [had] right achilles tendon pain for \napproximately 6 weeks and has seen his primary care \nphysician for this.  Patient was initially referred for an MRI to \n\nGODWIN - H206962 & H206963   5\n  \n \n \nevaluate the extent of his injury but it was denied by his \ninsurance company so he was scheduled to start physical \ntherapy this next week.  Patient states at work today that he \nlunged forward quickly and bore all of his weight on the ball of \nhis right foot.  Patient states that he felt an instant pain \nextending from the heel of his right foot up through the calf \nmuscle and states he feels like something is “moving in there.”  \nPatient states the leg gave way causing him to fall.... \nMusculoskeletal: \nGeneral:  Swelling, tenderness and signs of injury present.  \nNormal range of motion.... \nComments:  Swelling and tenderness with palpation 2-3 \ninches superior to right heel.   \n \n A radiologist’s impression on August 5, 2022 was “Intact but \nthickened and heterogeneous right Achilles tendon at real-time imaging.  \nThis is consistent with tendinopathy and/or partial tear.  No full-thickness \ntear.”  It was noted on August 5, 2022, “Patient is ambulatory here in the \nemergency department and had a negative Thompson’s test.  The \nultrasound results reveal a partial tear of the right achilles tendon.  \nPatient has a pending appointment on Thursday for evaluation and \nassessment by Physical Therapy.”   \n An APRN provided the following Excuse/Letter on August 5, 2022:  \n“James Godwin was seen and treated in our emergency department on \n8/5/2022.  He may return to work on (sic).  No climbing ladders until \nevaluated and cleared by physical therapy to safely perform the task.” \n The claimant’s testimony indicated that he returned to work for the \nrespondents on August 8, 2022.   \n\nGODWIN - H206962 & H206963   6\n  \n \n \n The claimant treated at Mercy Clinic Free Ferry on August 9, 2022.  \nStefanie A. Ellis, APN reported at that time: \nJames has come in for his pain in the rt achilles region x  ̴ 3 \nmonths.  Patient was initially referred for an MRI to evaluate \nthe extent of his injury but it was denied by his insurance \ncompany so he was scheduled to start physical therapy this \nweek.  Last week states while at work lunged forward quickly \nand bore all of his weight on the ball of his right foot.  States \nthat he felt an instant pain extending from the heel of his right \nfoot up through the calf muscle and states he felt like \nsomething was “moving in there.”  Patient states the leg gave \nway causing him to fall.... \nRight ankle:  Swelling present.  Tenderness present.   \nRight Achilles Tendon:  Tenderness present.   \n \n Ms. Ellis assessed the following:  “Negative Thompson’s test.  The \nultrasound results reveal a partial tear of the right achilles tendon.  Patient \nhas a pending appointment on Thursday for evaluation and assessment by \nPhysical Therapy....Walking boot RX will be sent in for patient.  He is \nencouraged to wear it while up, not to drive with it, not to sleep with it on.”   \n The claimant was provided physical therapy visits beginning August \n11, 2022.  A physical therapist recorded the following observations on \nAugust 11, 2022:  “Inspection of the right ankle reveals considerable soft \nswelling of the foot, ankle and lower leg with some redness over lower \nachilles tendon.”     \n The parties stipulated that the employee-employer-carrier \nrelationship existed on September 2, 2022.  The claimant testified on direct \nexamination: \n\nGODWIN - H206962 & H206963   7\n  \n \n \n  Q.  What happened then? \nA.  I was changing a screen in a hammer mill.  I took one out \nand I lifted the other and I had to twist to put it into position \nand it snapped again.... \nQ.  Did you fall? \nA.  Yes. \nQ.  Okay.  And did you report this incident? \nA.  Yes. \nQ.  Okay.  Who did you report this incident to? \nA.  Ben Smith.   \nQ.  And what was his response? \nA.  He said, “Okay.”     \n \n The respondents’ attorney examined Ben Smith: \nQ.  Now, you heard him describe a second event on \nSeptember the 2\nnd\n of 2022.  Is that correct? \nA.  Yes. \nQ.  Did he come to you that day and report an injury to you? \nA.  No.   \nQ.  Did he have any conversation with you claiming that he \nwas injured on September the 2\nnd\n of 2022? \nA.  Not during that time, no.   \n \n According to the record, Dr. Justin Clayton examined the claimant on \nSeptember 7, 2022: \n54-year-old male who had an Achilles injury on the right about \na month ago or a little bit more than that.  He had another \ninjury just about 5 days ago which seems to have completed a \npartially torn Achilles as best he can tell.  In a walking boot.... \nHe has a palpable defect in his Achilles and some tenderness \nto palpation in that location.... \nImaging:  I reviewed the plain radiographs that were done \npreviously are unremarkable.   \nMedical decision making:  54-year-old male with an Achilles \ntendon rupture on the right.  I discussed with him how this \nwould best be treated without surgical intervention.  It is \nimportant that he follows the nonsurgical protocol which we \nhave given him and he can also give a copy to his physical \ntherapist.  We will place a heel lift into his boot today.  He \n\nGODWIN - H206962 & H206963   8\n  \n \n \nshould not be on ladders and should have a 15 pound lifting \nrestriction we will see him in 4 weeks for exam only no \nimaging.   \n \n Dr. Clayton stated on September 7, 2022, “James Godwin was seen \nin my clinic on 9/7/2022.  He may return to work with no use of ladders, and \na 15 lb lifting restriction.”   \n A physical therapist noted on September 13, 2022, “Patient reports \nhe has experienced further injury to right achilles on 9/2/22 when he was \nlifting a heavy screen at work and felt a pop in his right achilles with sudden \nincrease in pain.  Patient has been in to see ortho MD and is now on non-\noperative achilles rupture protocol.  Patient is now wearing a wedge in his \nright cam-walker boot.”   \n The claimant testified on direct examination: \n  Q.  Why is it you no longer work for Mid-South? \nA.  September 23\nrd\n, I asked for some workmen’s comp so I \ncould get some short-term disability, which their insurance did \nnot have, and at the end of the shift that day they let me go.... \nQ.  And it’s your understanding you were terminated.  Is that \ncorrect? \nA.  They said, quote, I was suspended.  About a week later, I \ngot a letter in the mail from my insurance saying my medical \ninsurance had been terminated on September 23\nrd\n.   \nQ.  Do you know the reason you might have been \nsuspended? \nA.  Because I asked for workmen’s comp.... \nQ.  Did you remain off of work between September 23\nrd\n of ’22 \nand December 8\nth\n of 2022? \nA.  Did I remain off work? \nQ.  Yes. \nA.  Yes, I did.   \n \n\nGODWIN - H206962 & H206963   9\n  \n \n \n The respondents’ attorney examined Ben Smith: \nQ.  Now, at some point later, do you recall a conversation with \nMr. Godwin discussing a work-related injury that he was \nclaiming? \nA.  He did come to my office – again, the dates escape me – \nbut he did come to my office one morning and asked if I would \nput him down for two dates for workmen’s comp.   \nQ.  Now, he’s described that on September the 23\nrd\n of 2022 \nthat he was suspended at that point.  Does that sound about \nthe right time? \nA.  Yes.   \nQ.  So about three weeks after this claimed second event on \nSeptember 2\nnd\n is when he had that conversation? \nA.  That is correct. \nQ.  Okay.  Now, at that point, was that the first time you had \nlearned of any claimed work injury? \nA.  That would be correct.   \nQ.  Now, what did you ask him at that point in time? \nA.  I stated, “Do you feel like this is work-related?”  And his \ncomment was, “That doesn’t matter.”   \nQ.  Meaning what? \nA.  I didn’t know.  I basically stated to him, “Well, it does \nmatter.  If you feel like it was work-related, we have ways to \ndeal with it.”  He then walked away and I had conversations \nwith HR and stuff like that.... \nQ.  Now, at some point he was suspended.  Is that correct? \nA.  That is correct. \nQ.  And what was the purpose of the suspension? \nA.  We felt like he was wrongfully trying to claim workers’ \ncomp on something that, again, he never previously stated \nwas.   \nQ.  And that would have been on September the 23\nrd\n, not on \nAugust the 5\nth\n and not on September the 2\nnd\n which he now \nclaims those events occurred.  Is that right? \nA.  Yes, sir.   \nQ.  Did you have any knowledge before September the 23\nrd\n of \nany claimed injury at work? \nA.  I did not. \nQ.  He had never reported anything to you? \nA.  No, sir. \n\nGODWIN - H206962 & H206963   10\n  \n \n \nQ.  Not ever claimed or said anything about being work-\nrelated? \nA.  Not work-related.  He claimed, you know, he had an injury.  \nYou know, again, showed us papers.  We give him the \nopportunity to still do his job, but he couldn’t walk up things \nand lift things.   \n \n The claimant’s attorney cross-examined Ben Smith: \n  Q.  Are you denying that Mr. Godwin fell on 8/5 of ’22? \n  A.  I am not denying that. \nQ.  Are you denying that Mr. Godwin hurt himself on 8/5 of \n’22? \n  A.  I honestly do not know.   \n \nThe claimant filed a Form AR-C, CLAIM FOR COMPENSATION,  on \nSeptember 28, 2022.  The ACCIDENT INFORMATION section of the Form \nAR-C indicated that the Date of Accident was August 5, 2022.  The claimant \nwrote regarding the cause of injury, “Short sprint toward equipment controll \n(sic).  Right achilles tendon tore causing me to fall.”  The CLAIM \nINFORMATION section of the Form AR-C indicated that the claimant \ncontended that he was entitled to “initial benefits,” that is, “Temporary \nPartial Disability.”  The claimant also contended that he was entitled to \n“additional benefits,” namely “Additional Medical Expenses.”   \n The claimant filed a second Form AR-C, CLAIM FOR \nCOMPENSATION, on September 28, 2022.  The ACCIDENT \nINFORMATION section of the Form AR-C indicated that the Date of \nAccident was September 2, 2022.  The claimant wrote regarding the cause \nof injury, “Trying to position screen in Hammer-mill, right achilles tendon \n\nGODWIN - H206962 & H206963   11\n  \n \n \ntore & caused fall.”  The claimant contended that he was entitled to \n“Temporary Partial Disability” and “Additional Medical Expenses.”     \n The claimant followed up with Dr. Clayton on December 7, 2022: \nHPI:  Patient who has been treated nonsurgically for an \nAchilles tendon rupture on the right.  He has been a little more \naggressive that we would like to have seen however he needs \nto be back at work and at this point is not having a significant \namount of pain nor is he having significant dysfunction.   \nExam:  He is ambulatory in the office without assistive devices \nand in regular shoewear.  He does not have complete \ncontinuity of his Achilles but it does appear to be better than it \nwas before.   \nImaging:  No new imaging. \nMDM:  Achilles tendon rupture on the right at this point we can \nlet him use it as tolerated and he can be seen as needed.   \n \n Dr. Clayton stated on December 8, 2022, “James Godwin was seen \nin my office on 12/7/2022.  He may return to work with no restrictions.” \n The claimant testified on direct examination: \nQ.  Now, it looks like you were released to return to work on \n12/8 of ’22.  Is that correct? \nA.  Yes. \nQ.  Why were you returned to work? \nA.  Well, I’ve got bills.  They’ve got to be paid.   \nQ.  Did you request that Dr. Clayton return you to work? \nA.  Yes.   \n \n A pre-hearing order was filed on March 16, 2023.  According to the \ntext of the pre-hearing order, the claimant contended, “He sustained a \ncompensable lower extremity injury on August 8, 2022 while working for \nMidsouth Milling Company in Fort Smith, Arkansas.  Despite objective \nevidence of injury, the respondents denied compensability of the claimant’s \n\nGODWIN - H206962 & H206963   12\n  \n \n \ninjury.  The claimant contends that he is owed medical benefits as well as \ntemporary total disability benefits from September 23, 2022 through a date \nyet to be determined.  Due to the controversion of entitled benefits, the \nrespondents are obliged to pay one half of the claimant’s attorney’s fee.  \nClaimant reserves the right to raise additional contentions at the hearing in \nthis matter.” \n The parties stipulated that the respondents “have controverted the \nclaim in its entirety.”  The respondents contended that the claimant “did not \nsustain a compensable injury on either date.  Claimant’s complaints are the \nresult of a preexisting condition and/or condition which did NOT occur at \nwork.  As a result, the claimant is not entitled to any medical or indemnity \nbenefits.” \n The parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on \nAugust 5, 2022 and September 2, 2022, regarding his right \nlower extremity.   \n2.  Compensation rate. \n3.  If compensable, whether claimant is entitled to medical \nbenefits, and temporary total disability benefits.   \n4.  Attorney’s fees.   \n \n The parties reserved all other issues.   \nAfter a hearing, an administrative law judge filed an opinion on July \n20, 2023.  The administrative law judge found that the claimant failed to \nprove he sustained a compensable injury.  The administrative law judge \n\nGODWIN - H206962 & H206963   13\n  \n \n \ntherefore denied and dismissed the claim.  The claimant appeals to the Full \nCommission.   \nII.  ADJUDICATION  \n A.  Compensability \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012) provides, in pertinent part: \n  (A)  “Compensable injury” means:   \n(i)  An accidental injury causing internal or external physical \nharm to the body ... arising out of and in the course of \nemployment and which requires medical services or results in \ndisability or death.  An injury is “accidental” only if it is caused \nby a specific incident and is identifiable by time and place of \noccurrence[.]   \n \n A compensable injury must be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \n 1.  August 5, 2022   \n\nGODWIN - H206962 & H206963   14\n  \n \n \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable injury to his right Achilles tendon on August 5, \n2022, or on September 2, 2022.”  The Full Commission does not affirm this \nfinding.  We find that the claimant proved he sustained compensable \ninjuries on August 5, 2022 and September 2, 2022.   \n The claimant testified that he became employed with the \nrespondents in 2019.  The parties stipulated that the employment \nrelationship existed on August 5, 2022.  The claimant testified that he was \nworking for the respondents that day as a “Mixing Room Operator.”  The \nclaimant testified that he “felt something give” in his right foot while stepping \ntoward a malfunctioning industrial machine.  The claimant testified that he \nwas “in a hurry” and stated, “I pivoted and put all of my weight on my right \nfoot and that is when it happened.”   \n The claimant testified that he reported the August 5, 2022 accident to \nhis supervisor, Ben Smith.  Ben Smith denied that the claimant reported an \naccidental injury to him.  The administrative law judge determined that Ben \nSmith was a credible witness and that the claimant was not credible.  \nNevertheless, it is the function of the Commission to determine the \ncredibility of the witnesses and the weight to be given their testimony.  \nJohnson v. Hux, 28 Ark. App. 187, 772 S.W.2d 362 (1989).  It is the duty of \n\nGODWIN - H206962 & H206963   15\n  \n \n \nthe Full Commission to enter findings in accordance with the \npreponderance of the evidence; our function is not to determine whether \nthere is substantial evidence to support an administrative law judge’s \nfindings.  Johnson, supra, citing Jones v. Scheduled Skyways, Inc., 1 Ark. \nApp. 44, 612 S.W.2d 333 (1981).  \n The Full Commission finds in the present matter that the claimant \nwas a credible witness.  The medical evidence of record corroborated the \nclaimant’s testimony.  It was noted at Mercy Hospital on August 5, 2022, “Pt \nfell after feeling something move in his leg give out.”  The diagnosis on \nAugust 5, 2022 was “Partial tear of Achilles tendon, initial encounter.”  The \nrecord contains no diagnosis of a partial Achilles tendon tear prior to the \nAugust 5, 2022 accidental injury.  Dr. Bartholomew directly corroborated the \nclaimant’s testimony on August 5, 2022:  “Patient states at work today that \nhe lunged forward quickly and bore all of his weight on the ball of his right \nfoot.  Patient states that he felt an instant pain extending from the heel of \nhis right foot up through the calf muscle and states he feels like something \nis ‘moving in there.’”  Dr. Bartholomew reported “swelling” in the claimant’s \nright lower extremity.  “Swelling” is an objective medical finding establishing \na compensable injury.  See White County Medical Center, LLC v. Johnson, \n2022 Ark. App. 262, 646 S.W.3d 245.  There were no medical reports of \n“swelling” in the claimant’s right lower extremity prior to the August 5, 2022 \n\nGODWIN - H206962 & H206963   16\n  \n \n \naccidental injury.  Nor were any abnormalities shown in the claimant’s right \nAchilles tendon prior to the August 5, 2022 work-related accident.     \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a “compensable injury.”  \nThe claimant proved that he sustained an accidental injury causing physical \nharm to the body.  The claimant proved that the injury arose out of and in \nthe course of employment and required medical services.  The injury was \ncaused by a specific incident and was identifiable by time and place of \noccurrence on August 5, 2022.  The claimant also established a \ncompensable injury by medical evidence supported by objective findings, \nnamely a “Partial tear of the Achilles tendon” and “swelling” in the claimant’s \nright lower extremity.  The Full Commission finds that these objective \nmedical findings were causally related to the August 5, 2022 accidental \ninjury and were not causally related to a prior injury or pre-existing \ncondition.  These objective medical findings include “swelling” physically \nnoted in the claimant’s right ankle on August 9, 2022, in addition to the \nAugust 11, 2022 report of “soft swelling of the foot, ankle and lower leg with \nsome redness over lower Achilles tendon.”  These objective medical \nfindings established a compensable injury to the claimant’s right lower \nextremity.   \n 2.  September 2, 2022 \n\nGODWIN - H206962 & H206963   17\n  \n \n \n The parties stipulated that the employment relationship existed on \nSeptember 2, 2022.  The claimant testified that his right lower leg “snapped” \nwhile changing a screen in the respondent-employer’s hammer mill.  \nAlthough supervisor Ben Smith denied that the claimant reported a work-\nrelated injury that day, the medical evidence again corroborated the \nclaimant’s testimony.  Dr. Clayton reported on September 7, 2022 that the \nclaimant had reported an injury five days earlier:  “He had another injury just \nabout 5 days ago which seems to have completed a partially torn Achilles \nas best he can tell....He has a palpable defect in his Achilles and some \ntenderness to palpation in that location.”  Dr. Clayton diagnosed “Achilles \ntendon rupture on the right.”  The record does not show that the claimant \nsuffered from a complete Achilles tendon rupture prior to the September 2, \n2022 accidental injury. \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a “compensable injury.”  \nThe claimant proved that he sustained an accidental injury causing physical \nharm to the body.  The claimant proved that the injury arose out of and in \nthe course of employment, required medical services, and resulted in \ndisability.  The claimant proved that the injury was caused by a specific \nincident and was identifiable by time and place of occurrence on September \n2, 2022.  The claimant also established a compensable injury by medical \n\nGODWIN - H206962 & H206963   18\n  \n \n \nevidence, namely, the “Achilles tendon rupture on the right” diagnosed by \nDr. Clayton on September 7, 2022.  The claimant proved that this objective \nmedical finding was causally related to the September 2, 2022 accidental \ninjury. \n B.  Temporary Disability \n For scheduled injuries the injured employee is to receive temporary \ntotal disability benefits during his healing period or until he returns to work, \nwhichever occurs first.  Ark. Code Ann. §11-9-521(a)(Repl. 2012); Wheeler \nConstr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 (2001).  The \nhealing period is that period for healing of an injury which continues until the \nemployee is as far restored as the permanent character of the injury will \npermit.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 \n(1994).  If the underlying condition causing the disability has become more \nstable and nothing further in the way of treatment will improve that \ncondition, the healing period has ended.  Id.  Whether an employee’s \nhealing period has ended is a question of fact for the Commission.  Ketcher \nRoofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995).     \n In the present matter, the Full Commission finds that the claimant \nproved he was entitled to temporary total disability benefits beginning \nSeptember 23, 2022 and continuing until December 8, 2022.  The Full \nCommission has determined that the claimant proved he sustained a \n\nGODWIN - H206962 & H206963   19\n  \n \n \ncompensable scheduled injury on August 5, 2022.  The claimant testified \nthat he returned to work for the respondents on August 8, 2022.  We have \nfound that the claimant proved he sustained another compensable \nscheduled injury on September 2, 2022.  Dr. Clayton returned the claimant \nto restricted work beginning September 7, 2022.  The respondents opted to \nterminate the claimant’s employment effective September 23, 2022.  Ben \nSmith testified that the respondents terminated the claimant’s employment, \nessentially asserting that the claimant “was wrongfully trying to claim \nworkers’ comp.”  Nevertheless, the evidence shows no wrongful conduct on \nthe claimant’s part, nor does the record show that the claimant “unjustifiably \nrefused suitable employment.”  See Ark. Code Ann. §11-9-526(Repl. 2012); \nRobertson v. Pork Group, Inc., 2011 Ark. App. 448, 384 S.W.3d 649.   \n The Full Commission therefore finds that the claimant proved he was \nentitled to temporary total disability benefits beginning September 23, 2022, \nthe date the respondents terminated the claimant’s employment.  Dr. \nClayton reported on December 7, 2022 that the claimant was “ambulatory in \nthe office without assistive devices and in regular shoewear.”  Dr. Clayton \nopined that the claimant was able to return to work with no restrictions on \nDecember 8, 2022.  The evidence therefore demonstrates that the claimant \nreached the end of a healing period for his compensable scheduled injury \nno later than December 8, 2022.  Temporary disability benefits cannot be \n\nGODWIN - H206962 & H206963   20\n  \n \n \nawarded after a claimant’s healing period has ended.  Milligan v. West Tree \nServ., 57 Ark. App. 14, 946 S.W.2d 697 (1997).  The Full Commission thus \nfinds that the claimant proved he was entitled to temporary total disability \nbenefits beginning September 23, 2022 until December 8, 2022.  The \nclaimant testified that he earned $15.00 per hour and was working 50 hours \nweekly at the time of his compensable injuries.  The Full Commission finds \nthat the claimant’s average weekly wage was $549.45.  See Ark. Code Ann. \n§11-9-501(Repl. 2012) and Ark. Code Ann. §11-9-518(Repl. 2012).   \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved he sustained compensable scheduled injuries on \nAugust 5, 2022 and September 2, 2022.  The claimant proved he was \nentitled to temporary total disability benefits beginning September 23, 2022 \nand continuing until December 8, 2022.  The claimant proved that the \nmedical treatment of record was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  The claimant’s attorney is \nentitled to fees for legal services in accordance with Ark. Code Ann. §11-9-\n715(a)(Repl. 2012).  For prevailing on appeal, the claimant’s attorney is \nentitled to an additional fee of five hundred dollars ($500), pursuant to Ark. \nCode Ann. §11-9-715(b)(Repl. 2012). \n \n \n\nGODWIN - H206962 & H206963   21\n  \n \n \n IT IS SO ORDERED.    \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s determination that the \nclaimant proved he sustained compensable scheduled injuries on August 5, \n2022, and September 2, 2022, and is entitled to temporary total disability \nbenefits beginning September 23, 2022, and ending December 8, 2022. \nThe claimant contends that his injuries arose from specific, work-\nrelated incidents on August 5, 2022, and September 2, 2022.   A specific \nincident injury is an accidental injury arising out of the course and scope of \nemployment caused by a specific incident identifiable by time and place of \noccurrence.  Ark. Code Ann. § 11-9-102(4)(A)(i).  This statute requires that \na claimant establish by a preponderance of the evidence:  (1) an injury \narising out of and in the course of employment; (2) that the injury caused \ninternal or external harm to the body which required medical services or \nresulted in disability or death; (3) medical evidence supported by objective \nfindings establishing an injury; and (4) that the injury was caused by a \n\nGODWIN - H206962 & H206963   22\n  \n \n \nspecific incident identifiable by time and place of occurrence.  Ark. Code \nAnn. § 11-9-102(4)(A)(i) and Ark. Code Ann. § 11-9-102(D). \"Arising out of \nthe employment\" refers to the origin or cause of the accident, while the \nphrase \"in the course of the employment\" refers to the time, place, and \ncircumstances under which the injury occurred.  White Cnty. Med. Ctr. v. \nJohnson, 2022 Ark. App. 262, 646 S.W.3d 245 (2022). \nThe record is clear that the claimant’s lower extremity pain was \ndocumented and treated long before his alleged injuries on August 5, 2022, \nand September 2, 2022.  In fact, the claimant admitted at the hearing on \nthis matter that he had treated with his primary care physician, APN \nStefanie Ellis, for these complaints prior to August 5, 2022. (Hrng. Tr, P. \n31).  According to the claimant’s medical records, prior to August 5, 2022, \nthe claimant was treated for the same complaints which he alleges occurred \nas the result of an on-the-job injury.  APN Ellis ordered an MRI to evaluate \nhis pain and physical therapy prior to August 5, 2022, but claimant’s \ninsurance denied the request for an MRI.  (Resp. Ex. 1, P. 24).   \nWhen claimant treated at Mercy Hospital in Fort Smith on August 5, \n2022, Dr. Seth Bartholomew reported that the claimant “complains of right \nposterior leg pain that begins at ankle region and extends up the posterior \nleg.  This began to bother him 6 weeks ago.  But significantly worsened.” \n(Resp. Ex. 1, P. 1).  Dr. Bartholomew went on to report, “James G. Godwin \n\nGODWIN - H206962 & H206963   23\n  \n \n \nis a 54-year-old man who presents [sic] emergency department today with \ncomplaints of right heel and leg pain.  Patient states he’s [sic] right Achilles \ntendon pain for approximately 6 weeks and has seen his primary care \nphysician for this.” (Resp. Ex. 1, P. 24) \nWhen the claimant later visited APN Ellis on August 9, 2022, records \nreflect that the claimant’s right Achilles region complaints began three \nmonths prior.  (Resp. Ex. 1, P. 59).  There is simply no evidence beyond the \nclaimant’s own testimony supporting the conclusion that the claimant’s \ninjury arose from the alleged specific incident on August 5, 2022.  The \nclaimant had been receiving treatment for the same complaints prior to his \nalleged injury and admitted to his medical providers he had been suffering \nfrom the pain in his right Achilles region from 6 weeks up to 3 months prior \nto August 5, 2020, the date of the alleged compensable injury.  \nThe question of credibility further shows these claims should be \ndenied.  While it is the function of the Commission to determine the weight \nand credibility of a witness, we should not wholly disregard the findings of \nan Administrative Law Judge who viewed a witness in person and was, \ntherefore, able to consider their disposition and expression in his findings. \nIn this instance, the claimant’s credibility is lost when he alleges at every \nturn on cross examination that he cannot recall conversations held with his \nphysicians.  The claimant baselessly disputed any record that proved that \n\nGODWIN - H206962 & H206963   24\n  \n \n \nhis injury was pre-existing with no supporting evidence, simply insinuating \nthat multiple independent practitioners were either wrong or lying.  For \nexample, respondent’s attorney, Mr. Guy Wade, had the following dialogue \nwith the claimant on cross-examination: \n By Mr. Wade: \nQ: On this day it says, “This began to \nbother him six weeks ago.” That is \nPage 1 of the Respondent’s \nExhibit.  So, the pain you are \ndescribing, “Leg pain: Patient \ncomplains of right posterior leg \npain that begins at ankle region \nand extends at his posterior leg.” \nAnd then they say, “This began to \nbother him six weeks ago.”  So, \nthey are saying that the same pain \nyou are complaining of on August \nthe 5th had been going on for six \nweeks? \n \nA: I do not recall that. \n \nQ: Now, you have already gone to \nyour doctor, Dr. Ellis, with the \nsame complaints, correct? \n \nA: Correct. \n \nQ: Okay.  Because on Page 24 in the \nsame record, the August the 5th, \n2022 Mercy Hospital emergency \nroom record, “Patient states his \nright Achilles tendon pain for \napproximately six weeks and has \nseen his primary care physician for \nthis.  Patient was initially referred \nfor an MRI to evaluate the extent \n\nGODWIN - H206962 & H206963   25\n  \n \n \nof his injury, but it was denied by \nhis insurance company so he was \nscheduled to start physical therapy \nthis next week.”  So, you had seen \nDr. Ellis before August the 5\nth \n.  \nShe had already recommended an \nMRI which was denied, but she \nhad already scheduled you for \nphysical therapy; correct? \n \nA: She had not scheduled me for \nphysical therapy until after the \ntendon tear. \n \nQ: Well, this says she scheduled the \ntherapy because you couldn’t have \nthe MRI.  So is this wrong? \n \nA: The MRI was not scheduled until \nafter the tear. She tried to refer me \nfor it. \n \nQ: Sir, she tried to refer you for an \nMRI before August the 5th of 2022 \nbecause of your Achilles pain you \nwere having six weeks before \nAugust the 5th, correct? \n \nA: That is not correct. \n \nQ: Well, that is the way the record \nreads.  That is what somebody told \nthe emergency room. \n \nA: I’ve never before been referred for \nan MRI for anything before my \ntendon tear. \n \nQ: Did you tear your tendon before \nAugust the 5\nth\n  of 2022 because \nyou are complaining of the same \npain that began in June? \n\nGODWIN - H206962 & H206963   26\n  \n \n \n \nA: No, sir. \n \nQ: So you are saying this medical \nrecord is wrong? \n \nA: I am saying that the dates may be \nmixed up. \n \nQ: Well, sir, let me ask you and I will \nlet you to read [sic] it because I \nwant to make sure I read it \ncorrectly and that you understand. \n \nA: Okay. \n \nQ: Did you read that? \n \nA: I read it.  \n \nQ: This is August the 5th of 2022.  So \nyou are telling us today that all of \nthis happened:  You saw your \nprimary care physician, you had an \nMRI denied, and you have had \nphysical therapy scheduled all on \nthat day? \n \nA: I told her I had pain in my foot \nprior, but I had not been referred \nfor an MRI before the tendon tear. \nAnd my insurance did deny it. \n \nQ: Sir, that didn’t all happen on \nAugust 5th.  That happened before \nAugust 5th because you told them \nthat; correct? \n \nA: Then that is something I don’t \nrecall.  I suppose it did happen, \nthen. \n \n\nGODWIN - H206962 & H206963   27\n  \n \n \nQ: Did anybody go the hospital with \nyou when you were telling the \nemergency room this information? \n \nA: No.  \n \nQ: Was anybody else present to give \nthem the history of the prior \ncomplaints or problems you had \nhad with your right foot? \n \nA: No.  \n \nQ: So you would have been the only \nperson giving them this \ninformation; correct? \n \nA: Correct.  \n \nQ: Okay.  So you already had \nphysical therapy scheduled based \non this as a result of your visit with \nDr. Ellis; correct? \n \nA: After the tear, yes.  \n \nQ: Now, when you say after the tear -- \n \nA: After August 5\nth\n.  \n \nQ: Well, this says you already had \nphysical therapy scheduled \nwhenever you saw Dr. Ellis.  \n \nA: Well, that is wrong.  (Hrng. Tr., Pp. \n31-34)  \n \nLater in his cross-examination, the claimant continued to \nevade direct questions. \n \n\nGODWIN - H206962 & H206963   28\n  \n \n \nQ: When you were in the emergency \nroom on August the 5\nth\n of 2022 \nwhen it says“ Patient states his \nright Achilles tendon pain has been \ngoing on for approximately six \nweeks,” is that reporting what you \ntold them? \n \nA: I don’t remember. \n \nQ: When it says, “He has seen his \nprimary care physician for this,” \nyou didn’t see Dr. Ellis on August \n5\nth\n, did you? \n \nA: No. \n \nQ: Okay.  It says, “Patient was initially \nreferred for an MRI to evaluate the \nextent of his injury, but it was \ndenied by the insurance company \nso he was scheduled to start \nphysical therapy next week.”  That \nwas already in the works because \nyou had seen Dr. Ellis or APN Ellis \nnot on August 5\nth\n of 2022 because \nyou didn’t see her that day; \ncorrect? \n \nA: I didn’t start physical therapy until \nafter the tendon –  \n \nQ: I am not denying that.  What it \nsays is it was already scheduled to \nstart because Dr. Ellis had \nscheduled before August the 5\nth\n of \n2022.  Do you understand?  \nAugust the 25th [sic], the only \nmedical provider you saw was the \nhospital emergency room; correct? \n \nA: On August 5\nth\n.  \n\nGODWIN - H206962 & H206963   29\n  \n \n \n \nQ: Okay.  \n \nA: The next person I seen was my \nprimary. \n \nQ: I understand that.  \n \nA: Then she referred me to physical \ntherapy.  \n \nQ: Well, I understand that is what \nyour mind may tell you, but you \nhad already been scheduled for \nphysical therapy before that; \ncorrect? \n \nA: If that is what she says, then it is \ntrue.  \n \nQ: Listen to my question.  August the \n5\nth\n, the day you claimed you were \ninjured, you went to the emergency \nroom; correct? \n \nA: Yes.   \n \nQ: And that is the only place you went \nthat day? \n \nA: Yes.  \n \nQ: And that day you told the \nemergency room personnel this \nhad been going on for six weeks, \ncorrect, based on this record? \n \nA: I suppose so.  \n \nQ: You also told them that you had \nseen Nurse Ellis or APN Ellis \n\nGODWIN - H206962 & H206963   30\n  \n \n \nbefore August the 5\nth\n of 2022; \ncorrect? \n \nA: Yes. \n \nQ: You also told them that you had \ninitially been referred for an MRI, \nbut that was denied; correct? \n \nA: I suppose.  I don’t recall. \n \nQ: You also told them that you were \nscheduled to start physical therapy \nthe next week based on what Dr. \nEllis did or APN Ellis; correct? \n \nA: I do not remember.  \n \nQ: But you would not have gotten that \ninformation from anywhere else \nbecause you didn’t see Dr. Ellis \nthat day; correct? \n \nA: Correct. \n \nQ: Okay.  Now, when you did see Dr. \nEllis, as the Court has pointed out \non Page 59, that was August the \n9\nth\n of 2022, so it would be four \ndays later; correct? \n \nA: Sounds right. \n \nQ: And at that time she says, “James \nhas come in today for his pain in \nhis right Achilles region times three \nmonths;” that you have been \nhaving this pain in this area for \nthree months.  Do you know where \nshe would have gotten that if she \ndidn’t get that from you? \n \n\nGODWIN - H206962 & H206963   31\n  \n \n \nA: I don’t know.   \n \nQ: And it goes on to say, “Patient was \ninitially referred for an MRI, but it \nwas denied by his insurance \ncompany, so he was scheduled for \nphysical therapy to start this \nweek.”  That is the same thing the \nemergency room record says; isn’t \nit? \n \nA: I don’t know.  I was not scheduled \nfor physical therapy until after the \ntear.  \n \nQ: I understand it didn’t take place \nuntil after the tear, but it was \nscheduled beforehand based on \nthese records; correct? \n \nA: I don’t know.  That has been a \nwhile.  (Hrng. Tr., Pp. 38-41). \n \n   Benjamin Glen Smith was the operations/plant manager for the \nrespondent employer and testified on the date of the alleged accident, \nAugust 5, 2022, the Claimant never came to the office, never described \nwhy he had to leave work or reported he had been injured on the job.  \n(Hrng. Tr. Pp. 47, 48) \n   Mr. Smith testified as follows concerning the claimant’s issues with \nwalking prior to August 5, 2022: \n  By Mr. Wade: \nQ: Now, before August the 5\nth\n of \n2022, did you observe the \nClaimant? \n\nGODWIN - H206962 & H206963   32\n  \n \n \n \nA: I had. \n \nQ: Was he having any problems \nwalking at that particular time? \n \nA: He’s always had issues with \nwalking, but a few months before \nthat he was definitely hobbling \naround.  \n \nQ: Okay. And was he noticeably \nlimping or having difficulty getting \nfrom station to station? \n \nA: Yes.  He has always had difficulty \ngetting from station to station.  \nTypically speaking, when he would \nhave to turn in a sample, which is \npart of his job, he would have to \nwalk probably 200 yards and he \nwould stop at least three to four \ntimes before getting to that and \nthree to four times coming back to \nhis station.  \n \nQ: And this was before August the 5\nth\n \nof 2022? \n \nA: It was. \n \nQ: Now, had this become noticeably \nworse prior to that? \n \nA: Not really, I guess. \n  \nQ: Okay.  Now, at any point in time on \nAugust the 5\nth\n of 2022, did he ever \ncome to you complaining of the \nproblem that occurred at work? \n \nA: He had not. \n\nGODWIN - H206962 & H206963   33\n  \n \n \n  \nQ: Now, he returned to work the next \ntime he was scheduled; is that \ncorrect? \n \nA: That is correct. \n \nQ: And at that point in time, did you \nhave any conversations with him? \n \nA: He mentioned that he was having \nissues and went to a doctor.  \n \nQ: Okay.  \n \nA: But still never claiming it was a \nwork-related issue.  \n  \nQ: Now, did you ask him if something \nhad happened at work? \n \nA: I had not.  \n \nQ: Not at that time? \n \nA: Not at that time.  \n \nQ: Did he report that something had \nhappened at work? \n \nA: Never. \n  \nQ: On August the 5\nth\n? \n \nA: No.         \n \nMr. Smith went on to testify that the claimant did not report a work-\nrelated injury on  the second date of the alleged accident of September 2, \n2022.  It was not until approximately three weeks later that he asked Mr. \n\nGODWIN - H206962 & H206963   34\n  \n \n \nSmith to put him down for two dates for workman’s [sic] compensation.  \nThis was the first time the claimant mentioned any alleged work-related \naccident. (Hrng. R. Pp. 51,52). \nThe record clearly shows that the claimant was evasive at best and \nuntruthful at worst.  For this reason, the only portions of the record that we \ncan rely on are the medical records, which clearly show the claimant was \nhaving the same medical issues he now claims were work-related for up to \nthree months prior to August 5, 2022, and the testimony of Mr. Benjamin \nSmith that the claimant had issues walking and was hobbling around \nmonths before the alleged accident date. The sum total of the reliable \nevidence proves that the claimant suffered from right lower extremity pain \nlong before his alleged injuries on August 5, 2022, and September 2, 2022.    \nFor the reasons set forth above, I respectfully dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":47018,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. H206962 & H206963 JAMES G. GODWIN, EMPLOYEE CLAIMANT MID SOUTH MILLING COMPANY, INC., EMPLOYER RESPONDENT TRAVELERS INDEMNITY COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 8, 2024","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","ankle"],"fetchedAt":"2026-05-19T22:29:45.934Z"},{"id":"full_commission-H204677-2024-02-08","awccNumber":"H204677","decisionDate":"2024-02-08","decisionYear":2024,"opinionType":"full_commission","claimantName":"Natasha Onick","employerName":"Jacksonville North Pulaskischool District","title":"ONICK VS. JACKSONVILLE NORTH PULASKISCHOOL DISTRICT AWCC# H204677 FEBRUARY 8, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Onick_Natasha_H204677_20240208.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Onick_Natasha_H204677_20240208.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H204677\n \n \nNATASHA ONICK, EMPLOYEE  CLAIMANT \n \nJACKSONVILLE NORTH PULASKI \nSCHOOL DISTRICT, EMPLOYER RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSN.,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED FEBRUARY 8, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed August 22, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2.  The stipulations set forth above are reasonable and are hereby \naccepted.  \n \n3.  Claimant has proven by a preponderance of the evidence her \nentitlement to additional treatment of her stipulated compensable \n\n \nONICK - H204677   2\n  \n \n \nlower back injury in the form of her visit to MedExpress Clinic on \nSeptember 24, 2021.  \n \n4.  Claimant has not proven by a preponderance of the evidence her \nentitlement to any other treatment of her stipulated compensable \nlower back injury other than that set out in Stipulation No. 3 and \nFinding of Fact/Conclusion of Law No. 3, supra.  \n \n5.  Claimant has not proven by a preponderance of the evidence her \nentitlement to temporary total disability benefits for any period.  \n \n6.  Claimant has not proven by a preponderance of the evidence that \nher attorney is entitled to a controverted fee under Ark. Code \nAnn. § 11-9-715 (Repl. 2012) because no indemnity benefits \nhave been awarded herein. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's August 22, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n \n\n \nONICK - H204677   3\n  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2851,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204677 NATASHA ONICK, EMPLOYEE CLAIMANT JACKSONVILLE NORTH PULASKI SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 8, 2024 Upon review before the FULL...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:45.939Z"},{"id":"alj-H103121-2024-02-08","awccNumber":"H103121","decisionDate":"2024-02-08","decisionYear":2024,"opinionType":"alj","claimantName":"Jimmy Foreman","employerName":"City Of Haskell","title":"FOREMAN VS. CITY OF HASKELL AWCC# H103121 FEBRUARY 8, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FOREMAN_JIMMY_H302171_20240208.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FOREMAN_JIMMY_H302171_20240208.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H302171 \n \nJIMMY G. FOREMAN, EMPLOYEE       CLAIMANT \n \nCITY OF HASKELL, EMPLOYER                     RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, CARRIER/TPA                RESPONDENT \n  \n \n \nOPINION FILED 8 FEBRUARY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe, 7 February 2024, in Little Rock, Pulaski County, Arkansas. \n \nThe pro se claimant did not appear. \n \nMs.  Mary  K.  Edwards, Attorney-at-Law  of  North  Little  Rock,  Arkansas,  appeared for  the \nrespondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 7 February 2024.  This case relates to a workplace injury sustained on or \nabout 25 May 2022, with a Form AR-C eventually filed on 4 April 2023 and a First Report of \nInjury filed on 17 April 2023.  A Form AR-2, dated 17 April 2023, was then filed indicating \nan initial denial of the claim for lack of supporting medical documentation.  \n In email correspondence with the Commission dated 7 June 2023, the claimant stated \nthat the emergency department bills at issue were being paid by the respondents and that \nhe had no other issues requiring the Commission’s consideration.  The matter was returned \nto the Clerk’s office, accordingly.  \n The respondents filed their Motion to Dismiss for Failure to Prosecute on 7 December \n2023, stating that the claimant had not sought a hearing on any matter at controversy in the \nsix (6) months preceding that filing. \n\nJ. FOREMAN- H302171 \n2 \n \n Notice of the respondents’ motion and then notice of a hearing date for that motion \nwere sent to the claimant via First Class and Certified mail.  The claimant responded to the \nCommission via email on 4 January 2024, asking about the nature of the hearing. According \nto the email correspondence, he was advised that his attendance was not required if he did \nnot object to the matter being dismissed.  \nThe  claimant  did  not  file  an objection  to  the  dismissal  or  appear  at  the  hearing  to \nargue against the respondents’ motion.  The respondents appeared, presented their motion, \nand offered supporting evidence into the record.  As argued by the respondents at the hearing, \nthe file reflects no request for a hearing on a claim in the relevant time preceding the filing \nof that motion.  \n Arkansas Code  Annotated §11-9-702(a)(4)  states  that  a  matter  may  be  dismissed \nwithout prejudice after six (6) months without a bona fide request for a hearing.  Commission \nRule 099.13 provides for  a  dismissal  for  failure  to prosecute  an  action upon  application  by \neither  party.  Based  on  the  record, the available  evidence, and the  arguments  of  the \nrespondents’ counsel, I find that the respondents’ Motion to Dismiss should be granted and \nthat the matter should be dismissed without prejudice. \nVI.  ORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3155,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H302171 JIMMY G. FOREMAN, EMPLOYEE CLAIMANT CITY OF HASKELL, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE, CARRIER/TPA RESPONDENT OPINION FILED 8 FEBRUARY 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge JayO. ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:57:14.436Z"},{"id":"alj-H303153-2024-02-07","awccNumber":"H303153","decisionDate":"2024-02-07","decisionYear":2024,"opinionType":"alj","claimantName":"Floyd Bates","employerName":"Aday Lime & Fertilizer Inc","title":"BATES VS. ADAY LIME & FERTILIZER INC. AWCC# H303153 FEBRUARY 7, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BATES_FLOYD_H303153_20240207.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BATES_FLOYD_H303153_20240207.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H303153 \n \nFLOYD BATES, EMPLOYEE   CLAIMANT \n \nADAY LIME & FERTILIZER INC., EMPLOYER RESPONDENT \n \nSTONETRUST INSURANCEINC.INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED FEBRUARY 7, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope County, \nArkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by ZACHARY F. RYBURN, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  May  26,  2023,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on  May  5, \n2023.   Claimant was represented at the time by Laura Beth York, who filed a Motion to Withdraw on \nSeptember 26, 2023 and was allowed to withdraw on October 16, 2023.  No other attorney entered \nan appearance on claimant’s behalf.    \nOn December 4, 2023, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time. A hearing on  respondent’s Motion to Dismiss was scheduled for \nJanuary 30, 2024.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was returned unclaimed on January  9,  2024.   \nClaimant  did  not  respond  to  Respondent’s motion and did not appear in person at the hearing on \nJanuary 30, 2024.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nBates-H303153 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2205,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303153 FLOYD BATES, EMPLOYEE CLAIMANT ADAY LIME & FERTILIZER INC., EMPLOYER RESPONDENT STONETRUST INSURANCEINC.INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED FEBRUARY 7, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope C...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:57:12.367Z"},{"id":"alj-H103121-2024-02-02","awccNumber":"H103121","decisionDate":"2024-02-02","decisionYear":2024,"opinionType":"alj","claimantName":"Corry Baker","employerName":"Rock Region Metro","title":"BAKER VS. ROCK REGION METRO AWCC# H103121 FEBRUARY 2, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Baker_Corry_H103121_20240202.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Baker_Corry_H103121_20240202.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H103121 \n \nCORRY W. BAKER, EMPLOYEE CLAIMANT \n \nROCK REGION METRO, \nSELF-INSURED EMPLOYER RESPONDENT \n \nRISK MGMT RESOURCES, \nTHIRD-PARTY ADMINISTRATOR RESPONDENT \n \nOPINION FILED FEBRUARY 2, 2024 \n \nHearing  before  Administrative  Law  Judge,  Steven  Porch,  on  January  3,  2024,  in  Little \nRock, Arkansas. \n \nClaimant was represented by Ms. Sheila Campbell, Attorney at Law, North Little Rock, \nArkansas. \n \nRespondents  were  represented  by  Ms.  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on January 3, 2024.  A prehearing telephone \nconference took place on June 7, 2023. A prehearing order was entered on that date and \nsubsequently  entered  into  evidence,  with  amendments  by  the  parties,  as  Commission \nExhibit 1. The parties’ stipulations are set forth. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n \n2. An employee/self-insured employer/third-party administrator \nrelationship  existed  among  the  parties  on  or  about  November  1, \n2020, when Claimant alleges, he sustained a compensable injury to \nhis cervical spine and left shoulder. \n \n3. Respondents have controverted this claim in its entirety. \n \n\nBAKER H103121 \n \n2 \n \n4. Claimant’s  average  weekly  wage  of  $950.47,  entitles  him  to a \ntemporary  total  disability  rate  of  $634.00,  and  a  permanent  partial \ndisability rate of $475.00.\n1\n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether Claimant sustained a compensable injury to his cervical spine and left \nshoulder by specific incident. \n \n2.  Whether Claimant gave proper notice of his injuries to Respondent/Employer.\n2\n \n  \n3.  Whether  Claimant  is  entitled  to  any  reasonable  and  necessary  medical \ntreatment. \n \n4.  Whether   Claimant   is   entitled   to   temporary   total   disability   benefits   from \nNovember 2, 2020, to a date yet to be determined. \n \n5.  Whether  Respondent/Employer,  pursuant  to  Ark.  Code  Ann.  §11-9-411,  is \nentitled to a set-off for all benefits paid by Claimant’s group health carrier, along \nwith  all  short-term  and  long-term  disability  benefit  and  all  unemployment \nbenefits received by him. \n6.  Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s   Contentions:   The   Claimant   contends   that   he   has   sustained   a \ncompensable injury to his cervical spine on or about November 1, 2020. Claimant was \nmaking a left turn onto Scott Hamilton Drive. When he turned his head, something popped \nin his neck and the pain radiated into his shoulder and neck. The pain gradually worsened \nuntil he went to the emergency room on February 5, 2021. Claimant reported the injury \nto  Gwen  Amhurst  in  Human  Resources  and  was  then  sent  to  Concentra.  Claimant \n \n1\n The parties stipulated and the Commission approved Claimant’s average weekly wage, \ntemporary total disability benefits, and permanent partial disability benefits on the hearing date. \n2\n Respondents moved to add the issue of notice of injuries, and it was granted. \n\nBAKER H103121 \n \n3 \n \ncontends that he is a candidate for injections to his neck. Claimant contends he is entitled \nto  permanent  partial  disability,  temporary  partial  disability,  and  wage  loss  benefits. \nClaimant  further  contends  that  he  is  entitled  to  additional  medical  treatment,  including \nmedical expenses, travel, and a controverted attorney’s fee.  \nRespondents’ Contentions: The Claimant did not sustain a compensable injury on \nNovember 1, 2020, or at any other time while working for Respondent/Employer. There \nwas no notice of the alleged injury until February 5, 2021. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  non-medical \ndocuments,  and  other  matters  properly  before  the  Commission,  and  having  the \nopportunity to hear the testimony and observe the demeanor of both the Claimant and \nGwen Amhurst, Director of Human Resources for Respondent/Employer, I hereby make \nthe following Findings of Fact and Conclusions of Law in accordance with Ark. Code Ann. \n§ 11-9-704 (Repl. 2012):   \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  The stipulations set forth above are reasonable and are hereby accepted. \n \n3.  The  Claimant  has  not  proven  by  the  preponderance  of  the  evidence  that  he \nsustained  a  compensable  cervical  spine  and  left  shoulder  injury  by  specific \nincident. \n \n4.  Based  on  my  finding  of  no  compensability,  the  remaining  issues  of  notice, \nreasonable   and   necessary   medical   treatment,   temporary   total   disability \nbenefits,  offsets,  and  a  controverted  attorney’s  fee  are  moot  and  will  not  be \naddressed in this opinion. \n \n \n \n \n \n\nBAKER H103121 \n \n4 \n \nCASE IN CHIEF \nSummary of Evidence \n The record is made up of Claimant’s Exhibit 1, Medical Records, that consists of 5 \npages, Respondents’ Exhibit 1, Medical Records, that consist of 93 pages, Respondents’ \nExhibit 2, Non-Medical Documents, consisting of 35 pages, Commission Exhibit 1, Pre-\nHearing Order, that consists of 5 pages, and Claimant’s and Respondents’ blue-backed \npost-hearing briefs. The Claimant, Corry Baker, and Gwen Amhurst, Director of Human \nResources for Respondent/Employer, were the only two witnesses in the full hearing.  \nClaimant was a bus driver for the Respondent/Employer. He has worked for the \nRespondent/Employer for fourteen years. Based on testimony, on or around November \nand December 2020, Claimant was turning his assigned bus onto Scott Hamilton Drive \nwhen he heard a pop in his neck followed by immediate pain radiating into his shoulder \nand  neck.  Claimant  testified  that  he  believed  this  pain  would  go  away,  but  instead  it \nworsened over time. The pain increased so much that he felt it necessary to report it to \nRespondent/Employer on February 5, 2021. The Claimant went to Respondent/Employer \non  that  date  and  completed  all  the  necessary  paperwork  and  was  immediately  sent  to \nConcentra  for  medical  treatment.  However,  the  source  of  Claimant’s  pain  was  not \nrevealed  until  an  MRI  was  administered  on  July  5,  2022.  The  MRI  report  revealed  the \nsource of his pain as being a “left subarticular disc extrusion at C4-C5 causing moderate \nspinal canal stenosis and slight mass effect on the left and the cord. There is moderate \nto severe right and mild left neural foramen stenosis....” The Claimant also had a “Central \ndisc protrusion at C3-C4 causing moderate spinal canal stenosis and mild mass effect on \nthe ventral cord.” This MRI report was done by Dr. Miles Ritter.  \n\nBAKER H103121 \n \n5 \n \nRespondents argue that Claimant had previously been in several car wrecks and \none as early as ten months before his alleged November and December 2020, cervical \nspine injury. One car wreck of note occurred March 15, 2011, where Claimant was taken, \nby  ambulance,  to  the  Baptist  Health  Medical  Center  located  in  Little  Rock,  Arkansas. \nThere  a  CT  scan  was  administered  which  showed  at  his  “C4-5...moderate  posterior \nspurring of the C5 end-plate with left lateral recess predominance.” The CT report further \nstated, “There is mild left-sided canal stenosis. There is left proximal foraminal stenosis.” \nDr. Scott B. Harter created this radiology report. Respondents feel due to this pre-existing \ncondition  they  are  not  responsible  for  Claimant’s  alleged  work-related  cervical  spine \ninjury. Respondent/Employer is also requesting, pursuant to Ark. Code Ann. §11-9-411, \na set-off for all benefits paid by Claimant’s group health carrier, along with all short-term \nand long-term disability benefit and all unemployment benefits received by him. \nAdjudication \nA. Whether Claimant sustained a compensable cervical spine and left \nshoulder injury by specific incident. \nTo determine compensability, I find Arkansas Code Annotated § 11-9-102(4)(A)(i) \n(Repl.  2012),  applies  to  the  analysis  of  Claimant’s  alleged  injuries,  and it  defines \n“compensable injury” as: \n(i) An accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \nmedical services or results in disability or death.  An injury is “accidental” \nonly if it is caused by a specific incident and is identifiable by time and place \nof occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \n\nBAKER H103121 \n \n6 \n \nThe  element  “arising  out  of  .  .  .  [the]  employment”  relates  to  the  causal  connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when  a  causal  connection  between  work  conditions  and  the  injury  is  apparent  to  the \nrational mind.”  Id. \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.  Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness but may accept and translate into findings of fact only those portions of \nthe testimony that it deems worthy of belief.  Id. \nI find the Claimant has not proven by the preponderance of the evidence that he \nsustained a compensable injury. Though the Claimant has presented objective findings \nin the forms of a C4-C5 disc extrusion and a C3-C4 disc protrusion, he has not proven an \nidentifiable time or date for his alleged cervical injuries. For example, on February 5, 2021, \n\nBAKER H103121 \n \n7 \n \nClaimant went to Concentra and reported that his injury occurred on November 1, 2021. \nSee  Respondents’  Exhibit  1,  page  56.   However,  on  February  4,  2021,  he  stated  in  a \nphysical therapy note that he has been experiencing pain in his shoulder and neck since \nOctober  2020.  See  Respondents’  Exhibit  1,  page  51. The  Commission’s  review  of \nClaimant’s AR-C filed on April 1, 2021, by the Claimant himself shows a date of injury of \nJanuary  21,  2021.  See  Respondents’  Exhibit  2,  page  11.  And  finally,  during  the full \nhearing on January 3, 2024, Claimant testified, more than once, that his injury occurred \naround November and December 2020. See Full-Hearing Transcript, page 12, lines 5-8 \nand page 27, lines 1-5. \nThe Claimant, although sincere in his testimony, does not know the date and time \nof  his  alleged  injuries.  True  the  Arkansas  Supreme  Court  held,  in Edens  v.  Superior \nMarble & Glass, 346 Ark. 487, 58 S.W.3d 369 (2001), that a claimant does not have to \nidentify  the precise  time  and  numerical  date upon  which  an  accidental  injury  occurred. \nInstead, the statute only requires that a claimant show that the occurrence of their injury \nis capable of being identified.  But due to the multiple inconsistencies cited above, I am \nnot able to find that the occurrence of Claimant’s alleged cervical and shoulder injuries is \ncapable of being identified without resulting to speculation and conjecture. Speculation \nand conjecture cannot serve as a substitute for proof. Dena Construction Co. v. Herndon, \n264 Ark. 791, 796, 575 S.W.2d 155 (1979). Consequently, I am unable to find a causal \nconnection between his alleged injuries and his employment. This, coupled with a lack of \nobjective  findings  regarding  his  left  shoulder,  compel  the  conclusion  that  Claimant  has \nnot  satisfied  his  burden  of  establishing  compensability;  and  his  claim  must  fail  for  that \nreason. \n\nBAKER H103121 \n \n8 \n \nB. Miscellaneous Issues. \n \n Based  on  my  previous  finding  of  no  compensability  in  this  opinion,  the  issues \nregarding notice, reasonable and necessary medical treatment, temporary total disability \nbenefits, offsets, and a controverted attorney’s fee are moot and will not be addressed in \nthis opinion.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthe parties shall act consistent with this opinion.  \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","textLength":13668,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H103121 CORRY W. BAKER, EMPLOYEE CLAIMANT ROCK REGION METRO, SELF-INSURED EMPLOYER RESPONDENT RISK MGMT RESOURCES, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED FEBRUARY 2, 2024 Hearing before Administrative Law Judge, Steven Porch, on January 3, 2024, i...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["cervical","shoulder","neck"],"fetchedAt":"2026-05-19T22:57:10.304Z"},{"id":"alj-H206227-2024-02-01","awccNumber":"H206227","decisionDate":"2024-02-01","decisionYear":2024,"opinionType":"alj","claimantName":"Brian Rankin","employerName":"Benton County Road Depatment","title":"RANKIN VS. BENTON COUNTY ROAD DEPATMENT AWCC# H206227 FEBRUARY 1, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/RANKIN_BRIAN_H206227_20240201.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RANKIN_BRIAN_H206227_20240201.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H206227 \n \nBRIAN RANKIN, EMPLOYEE   CLAIMANT \n \nBENTON COUNTY ROAD DEPATMENT, EMPLOYER RESPONDENT \n \nAAC RISK MANAGEMENT SRVICES/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED FEBRUARY 1, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by ZACHARY RYBURN, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  August 30, 2022, claimant filed Form AR-C, alleging a compensable injury on April 19, \n2022.  Claimant  was  represented  at  the  time  by  Jarid  Kinder,  who  filed  a  Motion  to  Withdraw  on \nOctober 25, 203 and was allowed to withdraw on November 14, 2023.  No other attorney entered an \nappearance on claimant’s behalf.     \nOn November 17, 2023, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time.  A hearing on respondent’s Motion to Dismiss was scheduled for \nJanuary 18, 2024.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was  delivered  to  claimant  on  December  15, \n2023.  Claimant did not respond to Respondent’s motion and did not appear in person at the hearing \non January 18, 2024.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nRankin-H206227 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2220,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206227 BRIAN RANKIN, EMPLOYEE CLAIMANT BENTON COUNTY ROAD DEPATMENT, EMPLOYER RESPONDENT AAC RISK MANAGEMENT SRVICES/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED FEBRUARY 1, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Wa...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:57:04.087Z"},{"id":"alj-H204207-2024-02-01","awccNumber":"H204207","decisionDate":"2024-02-01","decisionYear":2024,"opinionType":"alj","claimantName":"Bj Wallace","employerName":"Garland County Habitat For Humanity","title":"WALLACE VS. GARLAND COUNTY HABITAT FOR HUMANITY AWCC# H204207 FEBRUARY 1, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WALLACE_BJ_H204207_20240201.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALLACE_BJ_H204207_20240201.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204207 \n \nB. J. WALLACE,   \nEMPLOYEE                                          CLAIMANT \n \nGARLAND COUNTY \nHABITAT FOR HUMANITY,   \nEMPLOYER                                                RESPONDENT \n \nBANKERS STANDARD INS. CO./ \nESIS, INC.,   \nINS. CARRIER/TPA                                RESPONDENT \n \n \nOPINION FILED FEBRUARY 1, 2024 \n \nHearing  before  the  Arkansas  Workers’  Compensation  Commission  (the  Commission), \nAdministrative Law Judge (ALJ) Mike Pickens, on November 3, 2023, at Hot Springs, Garland \nCounty, Arkansas. \n \nThe claimant was represented by the Honorable Laura Beth York, Rainwater Holt & Sexton, Little \nRock, Pulaski County, Arkansas.   \n \nThe respondents were represented by the Honorable Eric Newkirk, Newkirk & Jones, Little Rock, \nPulaski County, Arkansas. \n \nINTRODUCTION \n     In the prehearing order filed July 26, 2023, the parties agreed to the following stipulations, \nwhich they affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n \n2. The  employer/employee/carrier-TPA  relationship  existed  with  the  claimant  at  all \nrelevant times, including March 8, 2022, when the claimant alleges he sustained a \nwork-related injuries to  his neck/cervical spine,  both his right and left shoulders, \nand his lower back/lumbar spine. \n                                                     \n3.   The claimant’s average weekly wage  (AWW)  is  $378.79,  which  is  sufficient  to \nentitle him to weekly compensation rates of $252.00 for temporary total disability \n(TTD),  and $190.00 for  permanent partial disability (PPD) benefits subject if his \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n2 \nalleged injuries are deemed compensable. \n \n4. The respondents have paid some medical benefits, but they controvert any and all \nadditional  medical  and/or  indemnity  benefits  other  than  those  they  have  paid  to \ndate. \n \n5. All parties specifically reserve any and all other issues for future determination \n            and/or hearing.     \n(Commission Exhibit 1 at 1-2; Reporter’s Transcript at 73-74; 5-6). Pursuant to the parties’ mutual \nagreement, the issues litigated at the hearing were: \n1. Whether the claimant sustained “compensable injuries” within the meaning of the \nArkansas’ Workers’ Compensation Act (the Act) to his neck, both his right and left \nshoulders, and his lower back/lumbar spine on March 8, 2022. \n \n2. If the claimant’s alleged injuries are deemed compensable, the extent to which he \nis entitled to additional medical treatment. \n \n3. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. 74). \n \nThe claimant contends that on March 8, 2022, he was loading a washing machine into a \nvan with a co-worker, when the co-worker dropped his end of the load causing the claimant to \nsustain an injury to his neck, both his right and left shoulders, and his lower back. The respondents \ninitially  accepted  the  claim  as  compensable  and  paid  some  medical  benefits.  The  claimant \ncontends that on March 16, 2022, he received treatment from Dr. Mark Larey, who ordered twelve \n(12) sessions of physical therapy (PT), and placed the claimant on light duty work restrictions. \nOn March 16, 2022, Dr. Larey halted the PT and ordered MRIs of the claimant’s left and right \nshoulders. The claimant contends that June 14, 2022, MRIs revealed evidence of rotator cuff and \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n3 \nlabral pathology, as well as chondromalacia along the glenohumeral joint of both the claimant’s \nleft  and  right  shoulders.  The  claimant  contends  that,  thereafter,  on  June  16,  2022,  Dr.  Larey \nopined he should continue PT, and he ordered  an EMG/NCS study, noting the claimant would \neventually need to be placed on permanent restrictions.  The claimant contends at this point the \nrespondents denied the claim and stopped paying for all medical treatment. Therefore, for all the \nreasons set forth above the claimant contends he sustained compensable injuries as set forth above \nwithin  the  course  and  scope  of  his  employment,  and  that  he  is  entitled  to  additional  medical \ntreatment, and TTD benefits, and that his attorney is entitled to a controverted attorney’s fee. The \nclaimant specifically reserves any and all other issues for future determination and/or litigation. \n(Comms’n Ex. 1 at 2-3; T. 75).   \n The respondents contend the claimant was involved in an admitted work incident/event on \nMarch 8, 2022, while he was assisting another employee load a washing machine into a van. The \nrespondents  contend  they  initially  accepted  the  claim  as  compensable,  and  paid  some  medical \nbenefits; however, relevant medical records and diagnostic studies conducted after the date of the \nalleged injury(ies) failed to reveal any acute or other \"trauma-related\" objective medical findings \nof  any  injury(ies)  as  the  Act  defines a “compensable injury”(ies).  Instead,  the  only  medical \nfindings were degenerative in nature, and not causally connected or related to the work incident. \nConsequently, the respondents contend all the subject conditions were and are clearly preexisting \nand not work-related or “compensable” within the Act’s meaning.  Accordingly, the respondents \ncontend the alleged injuries to the claimant's neck, both his right and his left shoulders, and lower \nback/lumbar spine are not compensable since there are no objective medical findings which are \ncausally  connected  or  related  to  the  subject  March  8,  2022,  work  incident.  Alternatively,  in  the \nevent  the  Commission  deems  this  claim compensable,  the  respondents  contend  the  claimant \nsustained  nothing  more  than  a  temporary  aggravation(s)  of  his  clearly  and  demonstrably \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n4 \npreexisting conditions for which they have paid all appropriate medical benefits, and the claimant \nis entitled to no additional medical treatment or other benefits pursuant to the Act. Furthermore, \nthe  respondents  contend  that  if  the  respondents  have  and  continue  to  employ  the  claimant  on  a \nfull-time  basis, this claim is a “medical only” claim.  Therefore,  if  the  Commission  deems  the \nclaimant is entitled to any additional medical benefits, the respondents contend he is not entitled \nto TTD benefits since he continued to work on a full-time basis without any lost time or wages. \nFinally,  and  alternatively,  the  respondents  contend  that  if  the  Commission  awards  additional \nmedical or indemnity benefits to the claimant, pursuant to Ark. Code Ann. Section 11-9-411 (Lexis \nReplacement 2023) they are entitled to a dollar-for-dollar credit/offset for any such benefits paid \nto the claimant by any and all third-party payor(s), including but not limited to, health insurance, \nshort- and/or long-term disability (STD or LTD) benefits, as well as unemployment benefits. The \nrespondents specifically reserve any and all other issues for future litigation and/or determination. \n(Comms’n Ex. 1 at 3-4; T. 75-76; 67-68). \nAt the beginning of the hearing the parties presented an evidentiary dispute to the ALJ for \nresolution prior to the taking of testimony. The dispute related to certain medical records of CHI \nSt. Vincent (St. Vincent) Hospital. The respondents had received the medical records late due to \nissues with a third-party vendor St. Vincent apparently uses to obtain and transmit medical records \nto  anyone  requesting  them.  Because  the  vendor  was  dilatory  in  obtaining  and/or  providing  the \nmedical records to the respondents, the respondents were unable to and admittedly did not provide \nthe records to the claimant within seven (7) days before the hearing date as the prehearing order \nrequires.  (It  appears  the respondents’  attorney  provided  the  records  to the claimant’s attorney \napproximately  30  minutes  before  the  start  of  the  Friday,  November  3,  2023,  hearing.  (T.  12)). \nConsequently, the ALJ resolved the dispute by sustaining the claimant’s attorney’s objection to \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n5 \nthe introduction of the subject medical records, thereby denying the respondents’ request to \nintroduce  the  medical  records  into  the  hearing  record.  However,  the  respondents’  attorney \nrequested and the ALJ permitted the respondents to proffer the subject St. Vincent medical records \nas Respondents’ Proffered Exhibit 1. (T. 7-16; RPX 1 at 1-55). Also, since the medical records \nrelated to questions respondents’ counsel already had asked the claimant under oath in his sworn \ndeposition,  the  respondents’  attorney  was  allowed  to  utilize  any  such  relevant  information \ncontained in RPX 1 in his cross-examination of the claimant. (T. 12; 15; 36-53; 57-60).   \nConsequently,  the  record  herein  on  which  the  ALJ  based  his  decision  consists  of  the \nhearing transcript and any and all exhibits contained therein and attached thereto, except RPX 1 \nfor the reasons set forth and explained in detail, supra. \n   STATEMENT OF THE CASE \nThe facts of this case are simple, straight-forward, and not subject to reasonable dispute. \nThe  claimant,  Mr.  B.J.  Wallace  (the  claimant),  is  69  years  old  and  a  resident  of  Hot  Springs \nVillage. In his professional career he worked for Weyerhaeuser, and also as a licensed property \nand casualty and life insurance agent. He worked with his wife at her Farmers insurance agency, \nand he also was appointed as an agent with Reliable Life in Little Rock. The claimant has kept his \nArkansas insurance agent’s license active, so he is still licensed to sell insurance in Arkansas. He \nstarted working with Habitat for Humanity (Habitat) around October of 2021, at which time he \nwould have been 68 years old. He testified his job at Habitat entailed him working primarily as a \nrepairman on small appliances, and he now continues working for them performing various other \nunnamed job duties which do not require him to lift anything heavy. (T. 18-19). \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n6 \nOn March 8, 2022, the claimant and two (2) other men were loading a washing machine \ninto a van through the van’s sliding side door. One (1) of the men was in the van, and the claimant \nand another man were lifting the washing machine into the van when the other man lost his grip \nand dropped his end of the washing machine just inside the van, while the claimant maintained his \ngrip on it. The claimant estimated the washing machine weighed approximately 100 pounds. He \ntestified the other man did not drop his end of the washing machine to the ground, but was able to \nget  it  just  inside  the  van  before  he  lost  his  grip,  which  left  the  claimant  holding  one  end  of  the \nwashing machine while the other two (2) men were trying to lift and pull it all the way inside the \nvan. The claimant testified he experienced pain in the area of both his left and right scapula, and \nthe left side of his neck. He said he reported the incident to someone but he could not remember \nhis name. (T. 19-24).   \nThe medical records reveal the claimant did not seek to obtain medical treatment until some \neight  (8)  days  later,  when  on  March  16,  2022,  he  went  to  see  Dr.  Mark  Larey.  At  that  time  the \nclaimant  told  Dr.  Larey  his  chief  complaint  was  bilateral  shoulder  pain  which  had  developed, \n“mostly in the shoulder blade area, burning, stinging and interferes with sleep laying on R shoulder, \ntried  salonpas  [sic], no prior shoulder issues.” (Claimant’s Exhibit 1 at 1; T. 81)  (Bracketed \nmaterial added). The claimant told Dr. Larey his pain had started as a result of the washing machine \nincident on March 8, 2022, and had gotten worse since then. Dr. Larey’s clinic note of 3/16/2022 \nreflects his physical examination of the claimant’s left and right shoulders revealed no evidence of \nswelling, bruising or a wound of any kind, and although X-rays did show  evidence of AC joint \narthritis in both shoulders, and the claimant had limited ROM (range of motion). (CX1 at 1; T. 81). \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n7 \nDr. Larey’s physical examination of the claimant’s cervical spine revealed no evidence of swelling, \nbruising or a wound, and the clinic note states, “No palpable spasm noted.” Dr. Larey diagnosed \nthe claimant with a, “Sprain of other specified parts of” both his left and right shoulder girdle. \n(CX1 at 1; T. 81). Dr. Larey released the claimant to return to light duty work, and the Habitat has \naccommodated and continues to accommodate the claimant with light duty work. (CX1 at 2; T. \n82).  The  claimant  has  not  missed  any  time  from  work,  and  Habitat  has  not  required  him  to  lift \nanything  heavy,  and  has  paid  his  regular  salary  from  March  8,  2022,  through  the  date  of  the \nhearing. (T. 19).   \nThe claimant followed up with Dr. Larey on March 23, 2022, at which time he reported his \nshoulder  condition  had  not  improved.  (CX1  at  6-7;  T.  86-87).  Consequently,  on  6/14/2022,  Dr. \nLarey ordered an MRIs of the claimant’s right and left shoulders which showed, no evidence of a \nrotator  cuff  tear  or  labral  pathology,  and  merely  naturally-occurring,  age-related  degenerative \nchanges. (CX1 at 8-11; T. 88-91). A CT scan of the claimant’s head and cervical spine performed \non 7/4/2022 showed no acute intracranial abnormality; and no traumatic fracture or malalignment \nof the cervical spine. (CX1 at 12-16; T. 92-96). \nOn cross-examination the claimant admitted that in June 19 or 20 of 2019 he was involved \nin  a  motor  vehicle  accident  (MVA)  which  resulted  in  him  having  neck  and  shoulder  pain  and \ndiscomfort, The claimant went on to testify he did not have any neck or shoulder pain before the \n2019 June MVA. Although he had denied any previous issues with his shoulder when he first saw \nDr. Larey on 3/16/2022 (CX1 at 1, 1-5) – some eight (8) days after the washing machine lifting \nincident at Habitat – further cross-examination and testimony revealed the claimant complained of \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n8 \nneck, bilateral shoulder, and lower back pain after the June 2019 MVA. (T. 36-60). Finally, the \nrecord is unclear what outstanding medical bills, if any, the claimant has at this time. (T. 67).         \n      DISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n9-704(c)(3) (2023 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987). \nAll claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n9 \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \nThe  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nThe Act’s Definition of a Specific-Incident Compensable Injury \nFor  any  specific-incident  injury  to  be  compensable,  the  claimant  must  prove  by  a \npreponderance of the evidence that his injury: (1) arose out of and in course of his employment; \n(2) caused internal or external harm to his body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence. Ark.  Code  Ann.  §  11-9-102(4); \nCossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, 687 (Ark. \nApp.  2009).  Of  course,  the  claimant  bears  the  burden  of  proving  the  compensable  injury  by  a \npreponderance of the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.   \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n10 \n“Objective findings” are those findings which cannot come under the voluntary control of \nthe patient. Ark. Code Ann. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, \nat  80  250  S.W.3d  263,  at  272  (Ark.  App.  2007).  Objective  findings, “specifically exclude such \nsubjective complaints or findings such pain, straight-leg-raising tests, and range-of-motion tests.” \nBurks  v.  RIC,  Inc.,  2010  Ark.  App.  862  (Ark.  App.  2010).  Objective  medical  evidence  is  not \nessential to establish a causal relationship between the work-related accident and the alleged injury \nwhere objective medical evidence exists to prove the existence and extent of the underlying injury, \nand a preponderance of other nonmedical evidence establishes a causal relationship between the \nobjective  injury  and  the  work-related  incident(s)  in  question. Flynn  v.  Southwest  Catering  Co., \n2010  Ark.  App.  766,  379  S.W.3d  670  (Ark.  App.  2010).  Moreover,  the  claimant  must  prove  a \ncausal relationship exists between her employment and the alleged injury. Wal-Mart Stores, Inc., \nv. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. App. 2002) (citing McMillan v. \nU.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (Ark. App. 1997)).   \nConcerning the proof required to demonstrate the aggravation of a preexisting condition, \nour appellate courts have consistently held that since an aggravation is a new injury, a claimant \nmust prove it by new objective evidence of a new injury different than the preexisting condition. \nVaughn  v.  Midland  School  Dist.,  2012  Ark.  App.  344  (Ark.  App.  2012)  (citing Barber  v.  Pork \nGrp., Inc., 2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. \n130, 382 S.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 \n(Ark.  App.  2010)  (Emphases  added.).  Where  the  only  objective  findings  present  are  consistent \nwith prior objective findings or consistent with a long-term degenerative condition rather than an \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n11 \nacute  injury,  this  does  not  satisfy  the  objective  findings  requirement  for  the  compensable \naggravation  of  a  preexisting  condition  injury. Vaughn,  2012  Ark.  App.  344,  at  6  (holding  that \nArkansas courts have interpreted the Act to require “new objective medical findings to establish a \nnew injury when the claimant seeks benefits for the aggravation of a preexisting condition”); \nBarber,  supra (affirming the Commission’s denial of an aggravation of a preexisting condition \nclaim where the MRI findings revealed a degenerative condition, with no evidence of, and which \ncould not be explained by, an acute injury) (Emphases added.). In Mooney, 2010 Ark. App. 600 at \n4-6,  378  S.W.3d  at  165-66 (Ark. App. 2010), the court affirmed the Commission’s decision \ndenying a back injury claim where the objective evidence of an injury - including muscle spasms, \npositive EMG test results, and spinal stenosis revealed on an MRI - were all present both before \nand after the date of the alleged aggravation injury. (Emphasis added). \nBased  on  the  aforementioned  law  as  applied  to  the  facts  of  this  case,  I  am  compelled  to \nfind the claimant has failed to meet his burden of proof in demonstrating he has objective evidence \nof an accidental injury related to the relatively minor 3/8/2022 work incident as the Act requires, \nfor the following reasons. (And I refer to the 3/8/2022 work incident as “minor” and/or “relatively \nminor” based not only on the claimant’s description of the work incident, but also on the facts he \ndid not require medical attention until some eight (8) days after the incident, and he has continued \nto work at Habitat and has received his regular salary, since the incident.) \nFirst, the fact the claimant denied to Dr. Larey he ever had any shoulder pain before the \nrelatively minor work incident of March 8, 2022, then admitted on cross-examination he had been \ninvolved in an MVA on June 19 or 20, 2019, after which he complained of and  was treated for \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n12 \nessentially the same pain complaints in his shoulders, neck, and lower back for which he now is \nseeking workers’ compensation benefits,  is  troublesome.  It  is  also  troublesome,  and  somewhat \nrevealing, the claimant apparently never even told Dr. Larey anything about the June 2019 MVA, \nand the pain complaints he had experienced as a result of the MVA. Why would the claimant keep \nthis obviously relevant and significant medical history from Dr. Larey? \nSecond, the June 2019 MVA is at least as likely – if not more likely – to have caused the \nclaimant  continuing  pain  complaints  in  both  his  shoulders,  his  neck,  and  lower  back  than  the \nrelatively minor 3/8/2022 work incident. If anything, the totality of the evidence of record clearly \npreponderates in favor of the conclusion that while the minor 3/8/2022 work incident may have \nexacerbated the claimant’s preexisting pain which apparently first manifested after the 2019 June \nMVA. It most certainly demonstrates there exists no objective evidence whatsoever – or at least \ngrossly insufficient evidence with respect to the Act’s required burden of proof – the claimant the \nclaimant sustained an accidental injury as a result of the minor 3/8/2022 work incident. On these \nfacts, it would constitute clear speculation and conjecture for a fact-finder to find the claimant’s \nalleged  injuries  compensable  in  light  of  the  June  2019  MVA,  and  the  claimant’s  resulting \nsymptoms and pain complaints which, again, are essentially identical to his current subjective and \nself-serving complaints of pain, tingling, and numbness, etc. Of course, it is well-settled Arkansas \nworkers’ compensation law that speculation and conjecture do not support a claim for benefits. \nSee, Deana, supra.   \nWhich brings us squarely to the third and most significant reason the claimant has failed to \nmeet his burden of proof pursuant to the Act: the record is devoid of sufficient objective evidence \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n13 \nthe claimant sustained an accidental work injury as a result of the minor 3/8/2022 work incident at \nHabitat  for  Humanity.  The  aforementioned  X-rays,  MRIs,  and  CT  scan  all  reveal  nothing  more \nthan  evidence  of  degenerative  changes  which  are  the  result  of  the  natural  process  of  aging,  and \nwhich are entirely consistent with a man who is 69 years of age. As the Vaughn, Grothaus, and \nMoody  decisions  cited supra explain  in  detail,  these  type  of  degenerative,  naturally-occurring \nobjective  findings  are  the  result  of  the  aging  process,  and  precisely  the  type  of  findings  the \nlegislature intended to exclude as evidence of an accidental injury that occurred within the course \nand scope of employment when it passed Act 796 of 1993. The claimant’s underlying degenerative \nconditions  simply  do  not  constitute  objective  (medical)  evidence  of  an  accidental  work-related \ninjury and, again, are entirely consistent with someone of his age. Such naturally-occurring, age-\nrelated  conditions  clearly  are  not  the  type  of  conditions  the  workers’ compensation system was \nand is designed to cover, as the Act, and the aforementioned precedents – among others – make   \nabundantly clear. \nTherefore, for the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed July 26, 2023,  which the \nparties affirmed on the record at the hearing, hereby are accepted as facts.   \n \n2. The  claimant  has  failed  to  meet  his  burden  of  proof  pursuant  to  the  Act  in \ndemonstrating he sustained a “compensable injury”(ies) within the Act’s meaning \nto his neck/cervical spine, and/or to both his right and left shoulders, and/or to his \nneck/cervical  spine,  and/or  to  his  lower  back/lumbar  spine  as  a  result  of  the \nrelatively minor March 8, 2022, incident at Habitat for Humanity.   \n \n3. Specifically, the claimant has failed to meet his burden of proof as the Act requires \n\nB.J. Wallace, AWCC No. H204207   \n \n \n \n14 \nin demonstrating he has any objective evidence of an accidental injury to any of the \nsubject body parts set forth above. Indeed, the claimant had no objective medical \nevidence of an accidental injury when he first saw Dr. Larey on March 16, 2022, \nsome  eight  (8)  days  after  the  incident;  and  none  on  the  thorough  and  extensive \ndiagnostic testing conducted thereafter revealed any objective medical evidence of \nan  accidental  injury,  but  merely  showed  objective  findings  that  are  entirely \ndegenerative in nature, consistent with the claimant’s age and the natural aging \nprocess. Therefore, pursuant to the Vaughn, Grothaus, and Moody precedents cited \nsupra, the claimant has failed to meet the burden of proof the Act requires.     \n \n4. The claimant’s attorney is not entitled to a fee on these facts.   \n \nFor all these reasons, this claim is denied and dismissed subject to the parties’ statutory \nappeal rights. \nIT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":27645,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204207 B. J. WALLACE, EMPLOYEE CLAIMANT GARLAND COUNTY HABITAT FOR HUMANITY, EMPLOYER RESPONDENT BANKERS STANDARD INS. CO./ ESIS, INC., INS. CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 1, 2024 Hearing before the Arkansas Workers’ Compensation Commission ...","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:1","granted:1","denied:4"],"injuryKeywords":["neck","cervical","back","lumbar","rotator cuff","shoulder","sprain","fracture"],"fetchedAt":"2026-05-19T22:57:06.168Z"},{"id":"alj-H300811-2024-02-01","awccNumber":"H300811","decisionDate":"2024-02-01","decisionYear":2024,"opinionType":"alj","claimantName":"David Wiser","employerName":"City Of Pea Ridge","title":"WISER VS. CITY OF PEA RIDGE AWCC# H300811 FEBRUARY 1, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WISER_DAVID_H300811_20240201.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WISER_DAVID_H300811_20240201.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H300811 \n \nDAVID A. WISER, EMPLOYEE   CLAIMANT \n \nCITY OF PEA RIDGE, EMPLOYER RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED FEBRUARY 1, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by MARK K. EDWARDS, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  May  1,  2023,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on  January  23, \n2023.   Claimant was represented at the time by Matthew J. Ketcham, who filed a Motion to Withdraw \non August 23, 2023 and was allowed to withdraw on September 6, 2023.  No other attorney entered \nan appearance on claimant’s behalf.   \nOn December 7, 2023, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time. A hearing on  respondent’s Motion to Dismiss was scheduled for \nJanuary 18, 2024.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was returned unclaimed on January  9,  2024.   \nClaimant did not respond to Respondent’s motion and did  not  appear  in  person  at  the  hearing  on \nJanuary 18, 2024.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nWiser-H300811 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2209,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300811 DAVID A. WISER, EMPLOYEE CLAIMANT CITY OF PEA RIDGE, EMPLOYER RESPONDENT ARKANSAS MUNICIPAL LEAGUE/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED FEBRUARY 1, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington Co...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:57:08.239Z"},{"id":"alj-H302429-2024-01-31","awccNumber":"H302429","decisionDate":"2024-01-31","decisionYear":2024,"opinionType":"alj","claimantName":"Mariah Taylor","employerName":"Jonesboro School District","title":"TAYLOR VS. JONESBORO SCHOOL DISTRICT AWCC# H302429 JANUARY 31, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Taylor_Mariah_H302429-_20240131.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Taylor_Mariah_H302429-_20240131.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H302429 \n \nMARIAH TAYLOR, \nEMPLOYEE                                                                                                              CLAIMANT \n \nJONESBORO SCHOOL DISTRICT, \nSELF-INSURED EMPLOYER                                                                           RESPONDENT  \n \nARKANSAS SCHOOL BDS ASSN., \nTHIRD PARTY ADMINISTRATOR                                                                RESPONDENT \n \nOPINION FILED JANUARY 31, 2024 \n \nHearing  conducted  on  Friday,  January  26,  2024, before the Arkansas Workers’  Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ)  Steven  Porch,  in  Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Mariah Taylor, pro se, of Brookland, Arkansas, did not appear in person at the \nhearing.  \n \nThe Respondents were represented by the Honorable Melissa Wood, Little Rock, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  The  Claimant  worked  for  the  Respondent/Employer  as  a  bus  aide.  She  was  injured  on \nMarch  28,  2023,  when  another  vehicle  backed  into  the  bus,  she  was  riding causing Claimant’s \nknees  to  slam  into  the  bar  of  the  seat  in  front  of  her.  The  Claimant  reported  her  injury  to  the \nRespondent/Arkansas  School  Boards  Association  on  March  29,  2023.  The  claim  was  initially \naccepted  by  Respondents  as  medical-only,  but  was  later  denied  on  April  14,  2023,  concluding \nthere was no injury in the course  and scope of employment.   The Claimant then filed her Form \nAR-C  on  April  19,  2023,  through  her  attorney  Mark  Peoples.  However,  Mark  Peoples  filed a \nMotion  to  Withdraw,  and  it  was  granted  on November 14, 2023. Since the filing of Claimant’s \nAR-C on March 29, 2023, this claim has not been pushed to a full hearing.  \n\nTAYLOR, AWCC No. H302429 \n \n2 \n \nThe Respondents filed a Motion to Dismiss on November 17, 2023, requesting this claim \nbe dismissed for lack of prosecution. The Claimant was sent notice of the Motion to Dismiss from \nthe Commission on November 20, 2023. The Claimant did not respond to the motion in writing. \nIn accordance with applicable Arkansas law, the Claimant was mailed due and proper legal notice \nof both the respondents’ motion to dismiss and the hearing notice at her current address of record \nvia the United States Postal Service (USPS), First Class Certified Mail, Return Receipt Requested, \nwhich she received on December 23, 2023. The hearing took place January 24, 2024. The Claimant \ndid not show up to the hearing. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, including Respondents’ Exhibit 1, non-medical records, consisting of \nnine pages and Commission Exhibit 1, Notice of Hearing and supporting documents, consisting of \n6 pages, I hereby make the following findings: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant and Respondents both had notice of the January 26, 2024, hearing. \n \n3. The Claimant has failed to prosecute her claim under AWCC Rule 99.13.  \n \n4. The Respondents’ Motion to Dismiss should be granted.     \n \nDISCUSSION \n Consistent  with  both Ark.  Code  Ann. §  11-9-702(a)(4)  and  AWCC  Rule  99.13,  the \nCommission scheduled and conducted a hearing on the Respondents’ Motion to Dismiss. I do find \nthat the Respondents have proven by the preponderance of the evidence, introduced at the hearing, \nand contained in the record, that Claimant has not requested a hearing, nor has she taken any action \n\nTAYLOR, AWCC No. H302429 \n \n3 \n \nto pursue her claim as of the hearing date. Therefore, I find by the preponderance of the evidence \nthat the Claimant has failed to prosecute her claim under AWCC Rule 99.13.  \n     CONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n \n     IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":4456,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H302429 MARIAH TAYLOR, EMPLOYEE CLAIMANT JONESBORO SCHOOL DISTRICT, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS SCHOOL BDS ASSN., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JANUARY 31, 2024 Hearing conducted on Friday, January 26, 2024, before the Arkan...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:3","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:58:59.088Z"},{"id":"alj-H301373-2024-01-30","awccNumber":"H301373","decisionDate":"2024-01-30","decisionYear":2024,"opinionType":"alj","claimantName":"Taylor Butler","employerName":"Amazon.Com Services, LLC","title":"BUTLER VS. AMAZON.COM SERVICES, LLC AWCC# H301373JANUARY 30, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BUTLER_TAYLOR_H301373_20240130.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BUTLER_TAYLOR_H301373_20240130.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        AWCC CLAIM NO.: H301373 \n \nTAYLOR N. BUTLER,  \nEMPLOYEE                                                                                                                CLAIMANT                                   \n \nAMAZON.COM SERVICES, LLC,  \nEMPLOYER                                                                                                           RESPONDENT  \n \nAMERICAN ZURICH INSURANCE COMPANY,              \nINSURANCE CARRIER                                                                                       RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES, INC., \nTHIRD PARTY ADMINISTRATOR (TPA)                                                        RESPONDENT \n                                                                                                                                                                                  \n                                               \nOPINION FILED JANUARY 30, 2024    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant, pro se, did not appear at the hearing. \n \nRespondents represented by the Honorable Rick Behring, Jr., Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis  matter  comes  before  the  Commission  pursuant  to  the  Motion  to  Dismiss  filed  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  November  15,  2023,  in  Little  Rock, \nArkansas.  Thus, the sole issue for determination is whether this claim should be dismissed due to \nthe Claimant’s failure to prosecute it under Ark. Code Ann. §11-9-702 (a)(4), §11-9-702 (d) (Repl. \n2012), and/or Arkansas Workers’ Compensation Commission Rule 099.13. \n The  Claimant,  per  my  review  of  Commission  records  is  pro  se,  failed  to  appear  at  the \nhearing. The record consists of the November 15, 2023, hearing transcript.  Admitted into evidence \nwas Respondents’ Exhibit 1, pleadings, correspondence and forms related to this claim, consisting \n\nButler – H301373 \n \n2 \n \nof fourteen numbered pages.  Additionally, in order to adequately address this matter under Ark. \nCode Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing  . . . in a manner \nwhich best ascertains the rights of the parties”), and without objection, I have blue-backed to the \nrecord forms, pleadings, and correspondence from the Commission’s file on the claim, consisting \nof  twenty-six  pages.  In  accordance  with Sapp  v.  Tyson  Foods,  Inc.,  2010  Ark.  App.  517,  ___ \nS.W.3d ___, these documents have been served on the parties in conjunction with this opinion. \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by \nlaw.   \n No testimony was taken at the hearing. \n                            Background \nThe record reflects the following procedural history: \nThe Claimant’s former attorney filed a Form AR-C with the Commission on February 28, \n2023, asserting Claimant’s entitlement to workers’ compensation benefits.  Per this document, the \nClaimant’s attorney described the cause of injury as follows: “Claimant was injured in the course \nand scope of employment.  Claimant sustained injuries to the back and other whole body.” The \ndate of the Claimant’s alleged accidental work-related injury was February 13, 2023.  According \nto  this  document,  the Claimant’s counsel  marked  all  the  boxes  for  both  initial  and  additional \nworkers’ compensation benefits.  Yet, at that time, there was no request for a hearing made by the \nClaimant’s attorney.       \nOn  or  about  April  4,  2023,  the  Respondents  filed  a  Form  AR-2  with  the  Commission \naccepting  limited  liability  in  this  claim.   Specifically,  the  claims  adjuster  stated  that  this  was  a \n“medical only” claim. \n\nButler – H301373 \n \n3 \n \nThe  Claimant’s  former  attorney  requested  to  withdraw  as  counsel  of  record for  the \nClaimant in this matter on April 20, 2023.  The Full Commission entered an order on May 2, 2023, \ngranting the Claimant’s attorney motion to withdraw from representing the Claimant in this \nworkers’ compensation claim.   \n Still, the Claimant has not attempted to pursue or otherwise resolve this claim for workers’ \ncompensation benefits since the filing of the Form AR-C in February 2023. \nOn February 11, 2023, the Respondents filed a Motion to Dismiss and Incorporated Brief \nin Support with the Commission accompanied by a certificate of service to the Claimant indicating \nthat they served a copy of the pleading on the Claimant by depositing a copy thereof in the United \nStates Mail.   \nThe  Commission  sent  a  letter  advising  the  Claimant  of the  Respondents’  motion  on \nSeptember 12, 2023, which was certified mail and first-class mail.  Per this letter, the Claimant \nwas given twenty (20) days from the date of that letter to file a response to the motion.  \nThe  letter  mailed  to  the  Claimant  by  first  class  mail  has  not  been  returned  to  the \nCommission.    However,  the  letter  mailed  to  the  Claimant  by  certified  mail  was  returned  to  the \nCommission  marked  as “RETURN TO SENDER –  TEMPORAILY  AWAY –  RETURN  TO \nSENDER.”      \nStill, to date, there has been no response from the Claimant in this regard. \nOn October 9, 2023, the Commission sent a Notice of Hearing to the parties letting them \nknow that a hearing was scheduled for November 15, 2023, on the Respondents’ motion to dismiss. \nSaid notice was mailed to the Claimant by certified and first-class mail.       \nTracking information received by the Commission from the United States Postal Service \ndid not show any delivery information on this item.  On November 13, 2023, the notice sent by \n\nButler – H301373 \n \n4 \n \ncertified mail to the Claimant was returned to the Commission because they were unable to deliver \nit to the Claimant.   However, the letter mailed to the Claimant via first-class mail has not been \nreturned to the Commission.     \nStill, there was no response from the Claimant.   \nHowever,  a  hearing  was  in  fact  conducted on the Respondents’ motion  to  dismiss  as \nscheduled.  The Claimant failed to appear at the hearing to object to  the claim being dismissed.  \nNevertheless, the Respondents’ attorney asked that the claim be dismissed under Ark. Code Ann. \n§11-9-702  (a)(4),  §11-9-702  (d),  and  Commission  Rule  099.13 due to the Claimant’s failure to \nprosecute said claim for workers’ compensation benefits.  \nReview of the evidence shows that the Claimant has failed to respond to the written notices \nof this Commission and did not appear at the hearing to object to the dismissal.  Moreover, since \nthe  filing  of  the  Form  AR-C  in  February  2023,  the  Claimant  has  not  requested  a  hearing.  \nConsidering all the foregoing, I am persuaded to conclude that the Claimant has abandoned this \nclaim for workers’ compensation benefits.  \nAccordingly,  based  on  my  review  of  the  documentary  evidence,  and  all  other  matters \nproperly before the Commission, I find that the Respondents’ motion  to  dismiss  this  claim  is \nwarranted  under  the  provisions  of  Ark.  Code  Ann.  §11-9-702  (a)(4),  §11-9-702  (d),  and  Rule \n099.13 of this Commission.  Said dismissal is without prejudice, to the refiling of this claim within \nthe limitation period specified by law. \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n\nButler – H301373 \n \n5 \n \n \n2. Claimant’s former attorney filed a Form AR-C with the Commission in this \nmatter  asserting  the  Claimant’s entitlement to workers’  compensation \nbenefits due to an incident occurring at work on February 13, 2023. \n \n3. Subsequently, the Claimant’s attorney filed a motion to be relieved as \ncounsel of record, which was granted by the Full Commission.  \n \n4. Since this time, and the filing of the Form AR-C, the Claimant has failed to \nmake a bona fide request for a hearing in this matter.    \n \n5. The Respondents filed a Motion to Dismiss this claim in September 2023. \n \n6.         Reasonable notice of the Motion to Dismiss and hearing was had on all the \nparties.    The  Claimant  has  failed  to  respond  to  the  notices  of  this \nCommission and did not appear at the hearing to object to this claim being \ndismissed.   \n \n7.         The evidence preponderates that the Respondents’ motion for dismissal for   \n            a lack of prosecution is warranted.   \n \n8.        That the Respondents’ motion to dismiss is hereby granted pursuant to Ark.  \nCode  Ann.  §11-9-702  (a)(4),  §11-9-702  (d),  and  Rule  099.13 without \nprejudice, to the refiling of the claim within the specified limitation period.   \n \nORDER \nIn accordance with the foregoing findings of fact and conclusions of law, this claim is  \nhereby dismissed without prejudice, pursuant to Ark. Code Ann. §11-9-702 (a)(4), §11-9-702 (d), \nand Commission Rule 099.13 to the refiling of it within the specified limitation period.        \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":9712,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H301373 TAYLOR N. BUTLER, EMPLOYEE CLAIMANT AMAZON.COM SERVICES, LLC, EMPLOYER RESPONDENT AMERICAN ZURICH INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FIL...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:58:54.963Z"},{"id":"alj-H208803-2024-01-30","awccNumber":"H208803","decisionDate":"2024-01-30","decisionYear":2024,"opinionType":"alj","claimantName":"Deborah Johnson","employerName":"Recovery Centers Of Arkansas","title":"JOHNSON VS. RECOVERY CENTERS OF ARKANSAS AWCC# H208803 JANUARY 30, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/JOHNSON_DEBORAH_H208803_20240130.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_DEBORAH_H208803_20240130.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n  \n                                                        AWCC CLAIM NO.: H208803 \n \nDEBORAH S. JOHNSON,  \nEMPLOYEE                                                                                                                CLAIMANT                                   \n \nRECOVERY CENTERS OF ARKANSAS,  \nEMPLOYER                                                                                                           RESPONDENT  \n \nATA WORKERS’ COMP. SI TRUST,              \nINSURANCE CARRIER                                                                                       RESPONDENT \n \nRISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR (TPA)                                                       RESPONDENT \n                                                                                                                                                                                  \n                                               \nOPINION FILED JANUARY 30, 2024    \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n  \nThe Claimant, pro se, did not appear at the hearing. \n \nThe Respondents represented by the Honorable Melissa Wood, Attorney at Law, Little Rock, \nArkansas. \n \n                                                     STATEMENT OF THE CASE      \n \nThis matter comes before the Commission pursuant to the Motion to Dismiss filed by the \nRespondents.  A hearing on the motion was conducted before this Commission on November 15, \n2023,  in  Little  Rock,  Arkansas.    Thus,  the  sole  issue  for  determination  was  whether  this  claim \nshould be dismissed due to the Claimant’s failure to prosecute it under Ark. Code Ann. §11-9-702  \n(Repl. 2012), and/or Arkansas Workers’ Compensation Commission Rule 099.13. \n The  Claimant,  per  my  review  of  Commission  records  is  pro  se,  failed  to  appear  at  the \nhearing.  The record consists of the  November 15, 2023, hearing transcript.  Also admitted into \nevidence was Respondents’ Exhibit 1, pleadings, correspondence and forms related to this claim, \n\nJohnson – H208803 \n \n2 \n \nconsisting of eight numbered pages.  Furthermore, in order to adequately address this matter under \nArk. Code Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must “conduct the hearing  . . . in a \nmanner which best ascertains the rights of the parties”), and without objection, I have blue-backed \nto  the  record  forms,  pleadings, and correspondence from the Commission’s file on the claim, \nconsisting of twenty-seven pages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. App. \n517, ___ S.W.3d ___, these documents have been served on the parties in conjunction with this \nopinion. \nReasonable notice of the dismissal hearing was had on all the parties in the manner set by \nlaw.   \n No testimony was taken at the hearing. \n                            Background \nThe record reflects the following procedural history: \nThe Claimant’s former attorney filed a Form AR-C with the Commission on December 19, \n2022, asserting Claimant’s entitlement to workers’ compensation benefits.  Per this document, the \nClaimant’s attorney  described  the  cause  of  injury as  follows: “Claimant  was  in  the  course  and \nscope of employment and sustained injuries to her back and other whole body.” The date of the \nClaimant’s alleged  accidental  work-related  injury  is  November  13,  2022.    According  to  this \ndocument,  the Claimant’s counsel  check  marked  all  the  boxes  for  both  initial  and  additional \nworkers’ compensation benefits.  However,  there  was  no  request  for  a  hearing  made  by  the \nClaimant’s attorney at that time.       \nOn or about December 22, 2022, the Respondents filed a Form AR-2 with the Commission \naccepting  limited  liability  in  this  claim.   Specifically,  the  claims  adjuster  stated  that  this  was  a \n“medical only” claim as an aggravation of pre-existing back problems – MMI December 19, 2022.  \n\nJohnson – H208803 \n \n3 \n \nThe Claimant’s former attorney requested to withdraw as counsel of record in this matter \non  August  31,  2023.    The  undersigned  entered  an  order  on  September  13,  2023,  granting  the \nClaimant’s attorney motion to withdraw from representing the Claimant in this claim.   \n Still, the Claimant has not attempted to pursue or otherwise resolve this claim for workers’ \ncompensation benefits since the filing of the Form AR-C in February 2023. \nOn September 18, 2023, the Respondents filed a Motion to Dismiss with the Commission \naccompanied by a certificate of service to the Claimant indicating that they served a copy of the \npleading on the Claimant by depositing a copy thereof in the United States Mail.   \nThe  Commission  sent  a  letter  advising  the  Claimant  of  the Respondents’  motion  on \nSeptember 18, 2023, which was certified mail and first-class mail.  Per this letter, the Claimant \nwas given twenty (20) days from the date of that letter to file a response to the motion.  \nThe  letter  mailed  to  the  Claimant  by  first  class  mail  has  not  been  returned  to  the \nCommission.  However, the letter mailed to the Claimant by certified mail was picked up from a \nlocal Post Office on September 21, 2023, by the Claimant and the return receipt bears her signature.    \nStill, to date, there has been no response from the Claimant in this regard. \nOn October 12, 2023, the Commission sent a Notice of Hearing to the parties letting them \nknow  that  a  hearing  was  scheduled  for  November  15,  2023, on the Respondents’ motion  for \ndismissal. \nSaid notice was mailed to the Claimant by both certified and first-class mail.       \nTracking information received by the Commission from the United States Postal Service \non  October  27,  2023,  shows  that  the  Hearing  Notice  sent  by  certified  mail  to  the  Claimant  was \nreturned to the Commission because they were unable to deliver it to her.   However, the notice of \nhearing sent to the Claimant via first-class has not been returned to the Commission.  \n\nJohnson – H208803 \n \n4 \n \nYet, there was no response from the Claimant.   \nHowever,  a  hearing  was  in  fact  conducted on the Respondents’ motion  to  dismiss  as \nscheduled.  The Claimant failed to appear at the hearing to object to  the claim being dismissed.  \nNevertheless, the Respondents’ attorney asked that the claim be dismissed under Ark. Code Ann. \n§11-9-702 and Commission Rule 099.13 due to the Claimant’s failure to prosecute her claim for \nworkers’ compensation benefits.  \nReview of the evidence shows that the Claimant has failed to respond to the written notices \nof this Commission and did not appear at the hearing to object to the dismissal.  Moreover, since \nthe  filing  of  the  Form  AR-C  in  December  2022,  the  Claimant  has  not  requested  a  hearing.  \nConsidering the foregoing, I am persuaded to conclude that the Claimant has abandoned this claim \nfor workers’ compensation benefits.  \nAccordingly,  based  on  my  review  of  the  documentary  evidence,  and  all  other  matters \nproperly before the Commission, I find that the Respondents’ motion  to  dismiss  this  claim  is \nwarranted under the provisions of Ark. Code Ann. §11-9-702 and Rule 099.13 of this Commission.  \nSaid  dismissal  is without  prejudice,  to  the  refiling  of  this  claim  within  the  limitation  period \nspecified by law. \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on the record, I hereby make the following findings of fact and conclusions of law \nin accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has authority  of  this \nclaim. \n \n2. The Claimant’s former attorney filed a Form AR-C with the Commission in \nthis  matter  in  December  2022 asserting  the  Claimant’s entitlement to \nworkers’ compensation benefits due to an accidental  injury  occurring  at \nwork on November 13, 2022. \n \n\nJohnson – H208803 \n \n5 \n \n3. Subsequently, the Claimant’s attorney filed a motion to be relieved as \ncounsel of record, which the Commission granted.  \n \n4. Since this time, and the filing of the Form AR-C, the Claimant has failed to \nmake a bona fide request for a hearing in this matter.    \n \n5. The Respondents filed a Motion to Dismiss this claim with the Commission \nin September 2023. \n \n6. Reasonable notice of the Motion to Dismiss and hearing thereon was had  \non  all  parties.    The  Claimant  has  failed  to  respond  to  the  notices  of  this \nCommission and did not appear at the hearing to object to her claim being \ndismissed.   \n \n7.         The evidence preponderates that the Respondents’ motion for dismissal due    \n            to a lack of prosecution is warranted.   \n \n8.        That the Respondents’ motion to dismiss is hereby granted pursuant to Ark.  \nCode  Ann.  §11-9-702  and  Commission  Rule  099.13 without  prejudice,  to \nthe refiling of the claim within the specified limitation period.   \n \nORDER \nIn accordance with the foregoing findings of fact and conclusions of law, this claim is  \nhereby dismissed without prejudice, pursuant to Ark. Code Ann. §11-9-702 and Commission Rule \n099.13 to the refiling of it within the time specified under the law.       \nIT IS SO ORDERED. \n   \n                                                                     ________________________________ \n                                                                                     CHANDRA L. BLACK  \n                                                    Administrative Law Judge","textLength":9653,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H208803 DEBORAH S. JOHNSON, EMPLOYEE CLAIMANT RECOVERY CENTERS OF ARKANSAS, EMPLOYER RESPONDENT ATA WORKERS’ COMP. SI TRUST, INSURANCE CARRIER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FILED JANUARY 30, 2...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:58:57.029Z"},{"id":"full_commission-H106661-2024-01-29","awccNumber":"H106661","decisionDate":"2024-01-29","decisionYear":2024,"opinionType":"full_commission","claimantName":"Charles Lawless","employerName":"At&t Technical Services","title":"LAWLESS VS. AT&T TECHNICAL SERVICES AWCC# H106661 JANUARY 29, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Lawless_Charles_H106661_20240129.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Lawless_Charles_H106661_20240129.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H106661\n \n \nCHARLES A. LAWLESS, EMPLOYEE                                         CLAIMANT \n \nAT&T TECHNICAL SERVICES  \nCOMPANY, INC., EMPLOYER                                              RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT  \nSERVICES, INC., INSURANCE CARRIER/TPA                    RESPONDENT \n \nOPINION FILED JANUARY 29, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, Attorney \nat Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE DAVID C. JONES, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n  Claimant appeals an opinion and order of the Administrative \nLaw Judge filed August 16, 2023. In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1.  The stipulations agreed to by the parties at a pre-hearing \nconference conducted on March 16, 2023, and contained \nin a pre-hearing order filed that same date are hereby \naccepted as fact.  \n \n2.  Claimant has failed to prove by a preponderance of the \nevidence that he is entitled to temporary total disability \nand/or temporary partial disability from May 1, 2022, \nthrough May 23, 2023. \n\nLawless-H106661      2  \n \n \n  We have carefully conducted a de novo review of the entire \nrecord herein and it is our opinion that the Administrative Law Judge's \ndecision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed. Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n  Therefore, we affirm and adopt the August 16, 2023 decision \nof the Administrative Law Judge, including all findings and conclusions \ntherein, as the decision of the Full Commission on appeal.  \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite concurs and dissents. \nDISSENTING OPINION \nThe Administrative Law Judge (hereinafter referred to as \n“ALJ”) found that the Claimant failed to prove by a preponderance of the \nevidence that he is entitled to temporary total disability and/or temporary \npartial disability benefits from May 1, 2022 through May 23, 2023. After \n\nLawless-H106661      3  \n \n \nconducting a thorough review of the record, I would find that the Claimant is \nentitled to temporary total disability benefits for the aforementioned period.  \nTemporary total disability benefits are appropriate where the \nemployee remains in the healing period and is totally incapacitated from \nearning wages. Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981). \nClaimant suffered an admittedly compensable injury to his \ncervical spine as a result of a work accident on May 28, 2021. The injury \nrequired surgical intervention in the form of a fusion, and there appears to \nbe little dispute that the Claimant remained in his healing period until at \nleast April 5, 2022, when a return-to-work statement was issued by Amanda \nHawes PA-C on behalf of Ozark Orthopedics.  \nAdditional medical records suggest that Claimant was seen by \na representative of Ozark Orthopedics again on April 21, 2022 and July 21, \n2022 but was never determined to be at maximum medical improvement. \nHowever, the July 21, 2022 medical record does cite “cervical disc disorder \nwith radiculopathy” as the “reason for visit” and determined that additional \nmedical treatment in the form of cervical injections was necessary.  Medical \nrecords also noted that the Claimant would not be at maximum medical \nimprovement for approximately six months after his visit, or January of \n2023. Thereafter, Claimant exercised his one-time right to change \n\nLawless-H106661      4  \n \n \nphysicians and began treating under Dr. Mangles in November of 2022. Dr. \nMangles placed Claimant under a 40-pound lifting restriction, assessed him \nas suffering from dysphoria, or difficulty speaking, as a result of his previous \nsurgical intervention for his compensable injury, and recommended an \nadditional surgical procedure for his compensable injury.   \nAt the time of his work accident, the Claimant worked as a \nSystems Engineer. Claimant’s supervisor testified that Claimant’s job \nrequirements included the ability to lift at least 50-pounds and the ability to \ntalk on the phone. After learning of his release to return to work, Claimant \ncontacted his supervisor to find suitable employment within his restrictions \nbut was told he was removed from his contracted position. Claimant was \nthen instructed to apply for positions on the company job search site. \nClaimant’s supervisor testified that the Respondent never offered the \nClaimant any specific employment opportunities after his release in April of \n2022. In sum, Claimant was never offered a light-duty position, or any \nposition, that was within his work-restrictions following his release. \nConsidering the work restrictions that remained in place, the failure of the \nemployer to offer the employment within his restrictions and the surgical \nrecommendation by Dr. Mangels, I find that the Claimant was unable to \nearn wages, and therefore entitled to temporary total disability benefits from \nMay 1, 2022 through May 23, 2023. See Tyson Poultry, Inc. v. Narvaiz \n\nLawless-H106661      5  \n \n \n2012 Ark. 118, 388 S.W.3d 16, and Superior Indus v. Thomaston, 72. Ark. \nApp. 7, 32 S.W.3d 52 (2000). \nAdditionally, all temporary total disability payments must be \noffset in accordance with Ark. Code Ann. § 11-9-506(b). \nFor the foregoing reasons, I dissent. \n \n                            _____________________________ \n                                                             M. SCOTT WILLHITE, Commissioner","textLength":6108,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H106661 CHARLES A. LAWLESS, EMPLOYEE CLAIMANT AT&T TECHNICAL SERVICES COMPANY, INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 29, 2024 Upon review be...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["cervical"],"fetchedAt":"2026-05-19T22:29:46.083Z"},{"id":"alj-H301714-2024-01-29","awccNumber":"H301714","decisionDate":"2024-01-29","decisionYear":2024,"opinionType":"alj","claimantName":"Sasha Justice","employerName":"O’reilly Automotive, Inc","title":"JUSTICE VS. O’REILLY AUTOMOTIVE, INC. AWCC# H301714 JANUARY 29, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/JUSTICE_SASHA_H301714-20240129.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JUSTICE_SASHA_H301714-20240129.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H301714 \n \nSASHA JUSTICE, Employee CLAIMANT \n \nO’REILLY AUTOMOTIVE, INC., Employer RESPONDENT \n \nGALLAGHER BASSETT SERVICES, INC., Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 29, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL C. STILES, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  November  2,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on  August  30,  2023,  and  a  Pre-hearing \nOrder  was  filed  on  September  6,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on January \n23, 2023. \n 3.  The  claimant  sustained  a  compensable  injury  to  her  right  wrist  and  hand  on  or  about \nJanuary 23, 2023. \n\nJustice – H301714 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $247.00  for  temporary  total  disability  benefits  and  $185.00  for  permanent  partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is  entitled to temporary partial disability benefits from January 24, \n2023, to July 15, 2023, and temporary total disability benefits from July 16, 2023, to a date yet to \nbe determined. \n 2. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“The claimant contends that she has been rendered temporary total \ndisability,  or  partially  disabled  from  January  24,  2023  through a \ndate  yet  to  be  determined  and  that  her  attorney  is  entitled  to  the \nstatutory fee on these benefits.” \n \n The respondents’ contentions are as follows: \n“1.  All  benefits  to  which  the  Claimant  is  entitled  have  been  paid \nand have not been controverted. \n \n2.  The  Respondents  have  paid  (and  are  continuing  to  pay)  the \nrelated medical expenses on the Claimant’s behalf. \n \n3. Following the January 23, 2023 incident, the Claimant continued \nworking for the respondent employer. \n \n4.  The  Claimant  eventually  received  light  duty  work  restrictions, \nwhich the respondent employer could accommodate. Accordingly, \nthe   respondent   employer   offered   light   duty   work   within   the \nClaimant’s restrictions; however, the Claimant declined such offer \nby refusing to appear for work. \n \n5.  Given  the  Claimant’s  refusal  of  employment  suitable  to  her \ncapacity  and  within  her  capabilities,  she  is  not  entitled  to  any \nindemnity  benefits  herein.  See  Arkansas  Code  Annotated  §11-9-\n526. \n \n\nJustice – H301714 \n \n-3- \n6. If it is determined the Claimant is entitled to additional benefits, \nthe Respondents hereby request a setoff for all benefits paid by the \nClaimant’s  group  health  carrier,  all  short  term  disability  benefits \nreceived by the Claimant, all long term disability benefits received \nby  the  Claimant,  and  all  unemployment  benefits  received  by  the \nClaimant. \n \n7.  The  Respondents  reserve  the  right  to  amend  and  supplement \ntheir  contentions  and  position  after  additional  discovery  has  been \ncompleted.” \n \n The  claimant  in  this  matter  is  a  48-year-old  female who  sustained  a  compensable  injury \nto her right wrist and hand on January 23, 2023. The claimant was employed by the respondent, \nwho is primarily in the business of selling auto parts, tools, and supplies. On direct examination, \nthe claimant described how her injury occurred as follows: \nQ Okay.  Now,  would  you  briefly  describe  your  accident  for \nthe judge. \n \nA I was delivering a part and it was a leaf spring for a truck. I \nwent to – and they had me delivering in a car and in order for the \nleaf  spring  to  fit  in  the  car,  the  seat  had  to  be  leaned  down.  And \nwhen I opened the back hatch, I reached down with my right hand \nto  pull  up  the  part  to  get  it  out  and  it  hung  on  something  in  the \nfront of the seat and it slammed down and twisted my wrist. \n \nQ Which wrist was that? \n \nA My right wrist. \n \nQ Okay.  What  symptoms  did  you  experience  immediately \nafter the accident? \n \nA Pain and swelling. \n \n The  claimant  reported  her  injury  to  the  respondent  and  was  seen  at  Conservation  Care \nOccupational  Health  in  Van  Buren,  Arkansas,  on  January  26,  2023,  by  APRN  Jessica  Minton. \nFollowing is a portion of that medical report: \n\nJustice – H301714 \n \n-4- \nEmployer Description of Accident: Sasha dropped a leaf spring on \nher wrist. The injury occurred on 1/23/23. She has not been treated \nat any other facility for this injury. \n \n*** \nCHIEF COMPLAINT \nRight wrist pain. \n \nHISTORY OF PRESENT ILLNESS \nSasha’s primary problem is pain located in the right wrist. She \ndescribes  it  as  aching,  throbbing,  sharp.  She  considers  it  to  be \nmoderate.  The  problem  began  on  1/23/2023.  Sasha  says  that  it \nseems  to  be  constant.  She  has  noticed  that  it  is  made  worse  by \ncertain  positioning  of  right  wrist.  It  is  improved  with  letting  right \nwrist dangle. She feels it is stable. \n \n*** \nDIAGNOSIS \n1. Pain in right wrist (M25.531). \n2. Pain in right forearm (M79.631) \n3. Unspecified sprain of right wrist, initial encounter (S63.501A) \n \nASSESSMENT \nSasha  presents  with  right  hand  swelling,  right  wrist  pain  and \nswelling  and  right  forearm  pain  and  swelling.  Unable  to  perform \nspecial  tests  for  the  wrist  due  to  pain,  decreased  range  of  motion, \nand  decreased  strength.  Pulses  are  two  plus,  sensation  is  normal, \nand capillary refill is less than two seconds. The hand is weak and \nextremely tender with movement or palpation. She was advised to \nRICE  her  injury  and  use  over  the  counter  Tylenol,  ibuprofen,  and \ntopical  pain  modalities.  She  was  placed  in  a  thumb  spica  splint \nwith the metal removed. She will be placed on restrictions for use \nof her right hand and return in two weeks. \nNumber   and   Complexity   of   Problems   Addressed:   1   acute \ncomplicated injury. \nRationale: The injury is extensive. \n \nTREATMENT PLAN \nRest,  ice,  soft  wrist  support,  elevation,  Tylenol,  NSAIDs  and \ntopical pain modalities were discussed. \n \n*** \nRECOMMENDED WORK STATUS \nSasha’s recommended work status is Restricted Duty. \n \n\nJustice – H301714 \n \n-5- \nRECOMMENDED ACTIVITY RESTRICTIONS \nAvoid right handed work, Continuous use of soft wrist support. \n \n The claimant was again seen by APRN Minton on February 9, 2023, with continued and \nincreasing pain. Following is a portion of that medical record: \nASSESSMENT \nSasha  presents  with  right  hand  swelling,  right  wrist  pain  and \nswelling,  and  right  forearm  pain.  Unable  to  perform  all  special \ntests  for  the  wrist  due  to  pain,  decreased  range  of  motion,  and \ndecreased strength. Tinnels and phalens test are positive. Pulses are \ntwo  plus,  sensation  is  normal,  and  capillary  refill  is  less  than  two \nseconds. The hand is weak and extremely tender with movement or \npalpation, particularly the lateral aspect of the thumb and along the \ndistal  radius.  She  also  reports  pain  along  the  distal  ulna  with \nmovement   and   palpation,   grip   strength   and   pincar   grasp   are \nsignificantly decrease. She was advised to continuing RICEing her \ninjury   and   use   over   the   counter   Tylenol   and   topical   pain \nmodalities. She was started on Meloxicam and the rigid support for \nher  thumb  spica  splint  was  replaced.  She  will  be  placed  on \nrestrictions for use of her right hand and be referred for an MRI. \nNumber   and   Complexity   of   Problems   Addressed:   1   acute \ncomplicated injury. \nRationale: The injury is extensive. \n \nTREATMENT PLAN \nRest,    ice,    compression/support,    elevation,    prescription    anti-\ninflammatory,  OC  Tylenol,  and  topical  pain  relief  was  discussed. \nShe will be referred for an MRI of the right wrist and hand for the \nworsening pain, strength, ROM, and sensation changes. \n \n*** \nCONSULTATION/REFERRAL REQUEST \nReferral  for  MRI  Elevate  the  need  for  further  diagnostic  testing. \nElevate the proper diagnosis. Elevate the lack of progress. \n \nThe claimant was continued on one-handed duty with use of “thumb spica splint.” \n On  February  21,  2023,  the  claimant  underwent  an  MRI  of  her  right  wrist  at  Prime \nMedical Imaging. Following are findings and impressions from that diagnostic report: \nFINDINGS: \n\nJustice – H301714 \n \n-6- \nThere is a tear of the triangular fibrocartilage, Joint effusion in the \ndistal  radioulnar  joint  compatible  with  there  being  arthrosis  in  the \ndistal radial ulnar joint. No significant abnormal signal intensity of \nthe marrow spaces of the carpal bones or the distal radius and ulna \nother than a tiny area of marrow edema of the ulnar styloid tip. The \nextensor  and  flexor  tendons  sheaths  appear  unremarkable.  No \nganglion cyst or soft tissue mass about the wrist. \n \nIMPRESSION: \nTear  of  the  triangular  fibrocartilage  and  arthrosis  in  the  distal \nradioulnar joint. \n \n On  February  22,  2023,  the  claimant  was  again  seen  by  APRN  Minton.  The  claimant’s \nwork and activity restrictions were continued, and she was referred to a hand surgeon for further \nevaluation and treatment. \n On March 8, 2023, the claimant was seen by Dr. James Kelly, a hand surgeon. Following \nis  a  letter  authored  by  Dr.  Kelly  regarding  his  assessment,  treatment,  and  restrictions  for  the \nclaimant: \nThank you very much  for referring Sasha Justice  for consultation. \nAs  you  are  aware,  she  is  a  47-year-old  O’Reilly  Auto  Parts \nemployee  who  on  01/23/2023  was  injured  on  the  job.  She  had  a \nleaf  spring  fall  on  her  wrist.  Since  that  time,  she  has  had  severe \nswelling  and  pain  in  the  right  wrist.  Her  pain  is  centered  over  the \nulnar border. She had an MRI which showed a TFCC tear. She has \nonly been immobilized. She has not had any therapy or injections. \nAfter  examining  her  and  looking  at  her  MRI,  I  have  decided  to \ninject  her  wrist  with  steroid  and  start  her  on  ultrasound  and  range \nof  motion  therapy.  We  also  will  place  her  in  a  compression  glove \nto  help  deal  with  the  swelling  in  the  fingers.  Once  we  do  this,  if \nsuccessful,  then  obviously  nothing  else  would  need  to  be  done.  If \nthis were to fail, then we may need to do surgical intervention for \nthe TFCC injury. I am hopeful however that we will not have to do \nthis.  I  will  make  arrangements  for  her  to  get  the  therapy  and \ncompression glove. I injected her wrist today. I want her to stay on \nstrictly  one  hand  duties  at  work.  She  will  be  attending  therapy  3 \ntimes a week. I will be seeing her back in 2 weeks to reassess her \nto  see  her  progress.  I  will  of  course  intervene  as  needed  in  the \ninterim. \n \n\nJustice – H301714 \n \n-7- \n On  March  23,  2023,  the claimant  was  again  seen  by  Dr.  Kelly.  Following  is  a  progress \nnote from that visit: \nMs.  Justice  presents  to  the  office  today  after  having  had  her  right \nTFCC  injected  and  having  therapy.  Swelling  is  less  but  she  is  not \nhaving decrease in pain. With that being said,  I do not think there \nis any benefit in waiting. I think we need to take her to the OR and \ncomplete a TFCC repair. She will need splinting for about 6 weeks \nand then she will require therapy and range of motion. I will make \narrangements to get this done and I will of course be following her \nthroughout the care. \n \n On  May  5,  2023,  the  claimant  underwent  surgical  intervention  on  her  right  wrist  at  the \nhands of Dr. Kelly. Following is a portion of that operative report: \nPREOPERATIVE  DIAGNOSIS:  Right  triangular  fibrocartilage \ncomplex tear with unstable distal radial ulnar joint. \n \nPOSTOPERATIVE  DIAGNOSIS:  Right  triangular  fibrocartilage \ncomplex tear with unstable distal radial ulnar joint. \n \nPROCEDURES: \n1. TFCC repair of the right wrist. \n2. Stabilization of the right DRUJ. \n \nDr. Kelly returned the claimant to work on alternative duty on May 6, 2023, with the following \nrestrictions, “no use of right arm (strictly one-handed duty).” \n On May 18, 2023, Dr. Kelly continued the claimant’s restriction of no right arm use and \nrequired  the  claimant  to  use  a  splint.  At  the  claimant’s  June  7,  2023,  visit  with  Dr.  Kelly,  he \nchanged  her  restrictions  from  no  use  of  right  arm  to “primarily  one-handed  work  using  the \nunaffected  extremity”  and  indicated  that  the  claimant “may  use  injured  hand/arm  to  assist \noccasionally.”  He  also  placed  a  five-pound  lifting  restriction  on  the  claimant’s  right  arm. \nFollowing is a portion of the medical record from that visit: \nMs.  Justice  presents  to  the  office  today  in  follow-up  of  her  right \nTFCC  repair.  We  completed  the  repair  of  May  5,  2023.  She \n\nJustice – H301714 \n \n-8- \npresents today. She stated she hit the back of her hand on a buggy \nat work and states she had pain that radiated up  to the elbow. She \nhas  some  swelling  in  her  fingers.  I  do  not  think  the  swelling  is \nactually  related  to  the  blow  to  the  back  of  the  hand.  I  think  the \nswelling  is  just  from  the  fact  she  has  been  immobilized  after \nhaving wrist surgery for over a month. This is very typical.  She is \nto the point that we can get her out of the splint altogether and get \nher  in  a  compression  glove  and  start  on  range  of  motion  and \nstrengthening exercises. We will keep her on light-duty restrictions \nat work. I want to see her back here in the office in 4 weeks to note \nher progress. \n \n Dr. Kelly again saw the claimant on July 10, 2023. Following is a portion of that progress \nnote: \nMs.  Justice  has  not  been  progressing  well  in  therapy  at  all.  She \ncomplains  of  hypersensitivity  and  discomfort  in  the  forearm.  I \nthink  that  in  order  to  rule  out  the  possibility  of  this  being  a \nsympathetic  dystrophy  picture  we  want  to  do  a  three-phase  bone \nscan  on  her.  I  also  feel  that  if  the  three-phase  bone  scan  comes \nback negative there is really nothing else that I am going to be able \nto  do  for  this  lady  and  we  will  want  to  get  a  rating  completed.  I \nwill order the three-phase bone scan and I will see her back here in \nthe office once this has been completed. \n \nNo changes or comments regarding the claimant’s work or activity restrictions are present in the \nmedical records submitted into evidence after the claimant’s June 7, 2023, restrictions. \n After  the  claimant’s  injury,  she  continued  to  work  for  the  respondent  and  was  provided \nwith one-handed duty as was ordered by APRN Minton on the claimant’s January 26, 2023, visit \nto  Conservative  Care  Occupational  Health  in  Van  Buren.  The  claimant  testified  that  she \ncontinued to have pain and swelling but continued to work with restrictions. The claimant had a \nright wrist MRI on March 3, 2023, and first saw Dr. Kelly on March 8, 2023. The claimant gave \ndirect  testimony  about  her  continuing  to  work  and  symptoms  after  initially  seeing  Dr.  Kelly  as \nfollows:  \nQ Did he continue to release you to work? \n\nJustice – H301714 \n \n-9- \n \nA Yes, sir. Just – \n \nQ And what were the restrictions? \n \nA Not to use my right hand at all. \n \nQ Now, after this treatment, initial treatment by Dr. Kelly, did \nyour symptoms improve? \n \nA No, sir. \n \nQ Did they get worse? \n \nA Yes, sir. \n \nQ And again, you tried to continue working; is that correct? \n \nA Yes, sir. \n \nQ And what problems did this cause? \n \nA By this time the pain and swelling was so bad and I kept – \nthey were supposed to be getting me this glove and they never did \nto try to help with the swelling, but I continued to go to work, even \nthough when my arm is down at work, it’s just – it swells and the \npain. \n \n On May 5, 2023, Dr. Kelly performed surgical intervention on the claimant’s right wrist. \nOn direct examination, the claimant was asked about her work restrictions after her May 5, 2023, \nsurgery and the difficulties she alleges due to her continued work as follows: \nQ And after the surgery, did Dr. Kelly return you to work? \n \nA The day after the surgery, yes, sir. \n \nQ With the same restrictions? \n \nA Yes, sir. \n \nQ Do you recall what those were? \n \n\nJustice – H301714 \n \n-10- \nA They were to not use my right hand and to ice  and elevate \nit. \n \nQ Did you continue to try to work? \n \nA Yes, sir. \n \nQ And what problems did this cause? \n \nA The  day  after  surgery,  I  went  in  like  he  told  me,  I  had  to, \nand I was on heavy narcotic medicine for pain and they told me to \ngo home. \n \nQ And did Dr. Kelly prescribe physical therapy. \n \nA Yes, sir. \n \nQ Did you get that? \n \nA Some of it. \n \nQ Did that help any? \n \nA I didn’t do it long enough to see any improvement. \n \nQ Did  any  of  that  treatment  by  Dr.  Kelly  improve  or  lessen \nyour symptoms? \n \nA No. \n \nQ Did you continue to try to work? \n \nA Yes, sir. \n \nQ And what problems did this cause? \n \nA It  is  continuous  swelling  and  after  the  surgery,  I  started \nhaving  really  bad  muscle  spasms  and  sharp  pains  all  through  my \nhand and arm all the way up to my shoulder and the swelling made \nit worse. \n \nQ Now, at some point in time, did you stop going into work? \n \nA Yes, sir. \n \n\nJustice – H301714 \n \n-11- \nQ Do you recall when that was? \n \nA July 15\nth\n. \n \nQ And why did you stop going into work? \n \nA Because  they  were  supposed  to  accommodate  me  with  ice \nand time to elevate my arm at least twice a day for 20 minutes and \nthey never accommodated that. \n \nQ Did the fact that your arm, hand and wrist hadn’t gotten any \nbetter play a role in that, in your deciding to just not go in and not \ntry to work? \n \nA Right. After I tried and tried. \n \nQ After you quit working, did your symptoms change any? \n \nA Yes.  My  hand  does  not  swell  as  much  and  I  can  keep  it \ncontrolled with pain medication and the ice and elevation. \n \n The  claimant  has  asked  the  Commission  to  determine  if  she  is  entitled  to  temporary \npartial  disability  benefits  from  January  24,  2023,  to  July  15,  2023.  The  claimant  submitted  an \nhours  and  wage  summary  produced  by  the  respondent  for  the  claimant  into  evidence,  which  is \nfound  at  Claimant’s  Exhibit  2.  There  appears  to  be  a  reduction  in  hours  and  corresponding \nreduction  in  wages  after  the  claimant’s  January  23,  2023,  compensable  injury,  up  until  the \nclaimant  quit  working  for  the  respondent  on  July  15,  2023.  The  claimant  was  asked  on  direct \nexamination about her reduction in work after her compensable injury as follows: \nQ Now,  during  the  period  of  time  you  tried  to  work,  did  you \nwork significantly less hours per week? \n \nA Yes, sir. \n \nQ Why was this? \n \nA I couldn’t handle the pain. \n \n\nJustice – H301714 \n \n-12- \n On  cross  examination,  the  claimant  was  asked  about  her  work  with  restrictions  that  the \nrespondent had agreed to accommodate as follows: \nQ In evidence, Respondents’ Documentary Exhibit Pages 1 \nand 2, is an offer of temporary modified  duty dated February 22\nnd\n \nof  this  year.  Did  you  receive  that  offer  of  modified  duty  from \nO’Reilly in late February? \n \nA Is that the one that’s telling me I needed to go back to \nwork? \n \nQ It   is   asking   if   you   can   return   to   work   based   on   the \nrestrictions assigned to you. \n \nA Yes, I did. \n \n MR. STILES: Judge, may I approach? \n \n THE COURT: You may. \n \nQ [BY MR. STILES]: Ms. Justice, I am going to show to you \nthat Respondents’ page, Exhibit 1, and it is the February 22, 2023 \nletter. Does this letter look familiar? \n \nA Yes, sir. \n \nQ And is this your signature there at the bottom? \n \nA Yes. \n \nQ Dated February 23\nrd\n? \n \nA Yes, sir. \n \nQ Okay. And so you are aware that O’Reilly was offering you \nwork within your restrictions; correct? \n \nA Yes, they were. \n \nQ And  through  this  letter,  were  you  aware  that  they  could \neven accommodate such restrictions as avoiding right-hand work? \n \nA Yes, sir. \n \n\nJustice – H301714 \n \n-13- \nQ So is that essentially a  different  way of saying one-handed \nduty,  that  avoid  right-hand  work  you  are  left  to  only  work  with \nyour left hand? \n \nA Yes, sir. \n \nQ Okay. And are you right-hand dominant? \n \nA Yes, sir. \n \nQ So O’Reilly was still willing to work with you when you \ncould  only  use  your  nondominant  hand  for  work  while  on  light \nduty? Is that a fair statement? \n \nA Without    accommodations    from    a    doctor’s \nrecommendations, yes, sir. \n \nQ What  do  you  mean  without  accommodations  from  your \ndoctor? \n \nA My  doctor  asked  for  me  to  be  able  to  have –  to  ice  and \nelevate for 20 minutes twice a day. \n \nQ Are you aware that there is no report in evidence today that \nmakes reference to this ice and elevate? \n \nA It was given to Mr. Jody. \n \nQ But are you aware that from the exhibits you submitted and \nmy  client  submitted,  there  is  no  report  in  there  about  icing  and \nelevating? \n \n MR.  ELLIG:  Judge,  I  don’t  believe  that  is  a  fair \ncharacterization. \n \n THE COURT: Are you objecting to the line of question? \n \n MR. ELLIG: I am. \n \n THE COURT: Okay. \n \n MR. STILES: Based on what? \n \n MR.  ELLIG:  I  think  you  are  misstating  what  the  record \nshows. \n\nJustice – H301714 \n \n-14- \n \n MR. STILES: Well, Your Honor, I have gone through and I \nhave got some examples. \n \n MR. ELLIG: Start with the Occupational Medicine records. \n \n MR.  STILES:  Well,  she  first  mentioned  that  she  went  on \nMarch – was it March 8\nth\n to Dr. Kelly. \n \nQ [BY  MR.  STILES]:  Was  Dr.  Kelly  the  one  that  said  you \nneed to ice and elevate? \n \nA Not at that time. \n \nQ But you just testified when you first saw him on March 8\nth\n \nhe said to ice and elevate. I have got your testimony right here. \n \nA Continue to ice and elevate is what he told me the first time \nI saw him. \n \nI  note  that  after  a  review  of  the  medical  records  submitted  into  evidence,  I  find  no  requirement \nplaced  by  any  medical  provider  to  ice  and  elevate  the  claimant’s  right  wrist  and  hand  for  20 \nminutes. APRN Minton’s records do mention ice and elevation in the “treatment plan” portion of \nher  medical  records,  typically  saying “rest,  ice,  soft  wrist  support,  elevation,  Tylenol,  NSAIDs, \nand topical pain medications were discussed.” There is no scheduling, or a time frame mentioned \nas  to  when  or  how  long  the  claimant  should  ice  and  elevate  her  arm,  and  Dr.  Kelly  made  no \nmention of ice or elevation in his medical records. \n The  claimant  was  asked  about  help  she  received  from  fellow  employees  while  she  was \nworking on restricted duty after her compensable injury as follows: \nQ Okay.  And  while  you  were  working  modified  duty  for \nO’Reilly before your surgery, did you receive assistance in lifting \nitems from, say, co-workers or other employees? \n \nA Before I hurt my hand? \n \nQ No. Before surgery while you were on modified light duty. \n\nJustice – H301714 \n \n-15- \n \nA When they could. When they had time. If not, I had to do it. \n \nQ Well,  in  your  deposition  you  told  me  something  a  little \ndifferent. Do you recall in your deposition me asking, “Were you \nreceiving  any  kind  of  assistance  as  far  as  lifting  items?  Would \nother  co-workers  help  you  lift  or  do  anything  while  working  light \nduty?” \n \n Do you recall that question? \n \nA I recall the question. \n \nQ And do you recall what you told me? \n \nA No. \n \nQ For  the  record  on  Page  32  of  your  deposition,  there  is  my \nquestion.  And  what  is  your  answer  about  co-workers  helping  you \nlift items? What is that word? \n \nA “Yes.” \n \nQ And  while  you  would  work  light  duty  or  modified  duty, \nyour job expectation or job duties changed; correct? \n \nA Yes, sir. \n \nQ You were expected to work the front counter.  Is that a fair \ndescription? \n \nA Yes, sir. \n \nQ And when you are working at the front counter, would you \nwork alone or by yourself up there? \n \nA Sometimes. \n \nQ Okay. How often would you be up there alone working the \nfront counter during light duty? \n \nA Depending  on  how  busy  the  other  associates  were  with \ncustomers. \n \n\nJustice – H301714 \n \n-16- \nQ But  there  were  others  around,  though,  in  the  store?  You \nhave told me it was a small store. \n \nA Some were in the store. Some were outside checking codes \nfor cars. Some were putting up stock. \n \nQ And  prior  to  surgery,  again,  while  you  are  on  modified \nduty, did you ever tell your superiors there at O’Reilly that you \nwere in too much pain to work and that you wanted off work? \n \nA Yes. \n \nQ And  did  you  tell  the  same  thing  to  Dr.  Kelly  before \nsurgery? \n \nA Yes. \n \n The claimant was asked  on cross examination about a period of roughly two weeks that \nshe  did  not  work  despite  being  released  to  return  to  work  by  Dr.  Kelly  with  restrictions  as \nfollows: \nQ We discussed that you had the surgery on May 5\nth\n and then \nDr.  Kelly  issued  that  May  5\nth\n  note  that  we  already  looked  at  on \nPage 31 of the Claimant’s Exhibits. \n \n And,  again,  it  says  no  use  of  right  arm.  Is  that  your \nrecollection as far as that May 5\nth\n return-to-work note? \n \nA Yes, sir. \n \nQ And despite having previously worked on one-handed duty \nbefore  surgery  and  then  receiving  this  May  5\nth\n  note,  you  chose  to \ntake  yourself  off  work  for  about  two  weeks  after  surgery;  is  that \ncorrect? \n \nA No, sir. \n \n MR. STILES: Okay. That’s not what you told me in your \ndeposition. Let’s go to Page 24 of your deposition transcript. And \nJudge, I apologize, do I have a continuing – \n \n THE COURT: You may approach. \n \n\nJustice – H301714 \n \n-17- \n MR. STILES: -- approach request, please? \n \n THE COURT: You may. \n \nQ [BY MR.  STILES]:  I  am  asking  you  here  at  the  bottom  of \nPage 32 about having surgery and Dr. Kelly performs the surgery. \nAnd I said, “How much time did you miss from work following \nthe surgery?” \n \n You said, “I took two weeks off because he released me to \ngo back to work the day after surgery.” \n \n Did I read that correctly? \n \nA Uh-huh. \n \nQ Is that a “yes”? \n \nA Yes. \n \nQ And  then I  said,  “So  you  took  two  weeks  off  yourself \ndespite Dr. Kelly’s release?” \n \n And then you said, “Dr. Kelly didn’t give me a release. He \njust released me to regular – or this here.” \n \n And I said, “To light duty work?” \n \n And then you said, “Not using my right hand.” \n \n And I said, “But he was releasing you saying you can go \nback to work in some form or fashion?” \n \n And you said, “Yes.” \n \n And then I asked you ultimately, “But you decided to take \nthe two weeks off?” \n \n And what is your answer? \n \nA “Yes. There was no way I could work. And they took me \noff.” \n \nQ Right. So you took of – \n \n\nJustice – H301714 \n \n-18- \nA Greg,  the  supervisor,  took  me  off  work.  Told  me  to  go \nhome. I took off the two weeks. \n \nQ But it wasn’t per Dr. Kelly’s orders; correct? \n \nA Well, I couldn’t work under a heavy narcotic around the \nmoney that I had to work around is what the supervisor told me. \n \nQ So you did receive TTD. My clients did oblige and pay you \ntemporary  total  disability  benefits  from  May  5\nth\n  until  May  21\nst\n; \ncorrect? \n \nA Yes. \n \n The claimant also testified on cross examination about returning to work with restrictions \nfollowing the two weeks that she was off work after surgery as follows: \nQ Okay.  So  a  little  over  two  weeks  while  you  were  off  work \nand then you decided to return to work at that time; correct? \n \nA Yes, sir. \n \nQ And  when  you  returned  to  work  after  those  two  weeks  or \napproximately two weeks, did you return to the same front counter \nlight-duty job? \n \nA Yes, sir. \n \nQ And  upon  your  return  to  work  after  surgery,  you  would \nreceive  these  return-to-work  notes  from  your  treating  physician \nand then you would forward them to your manager or supervisor at \nwork; correct? \n \nA Yes, sir. \n \nQ Okay.  And  when  you  hand  these  notes  to  your  superior  at \nO’Reilly, did any manager or supervisor ever look at the note and \nsay,  “Hey,  there  is  no  way  O’Reilly  can  accommodate  these \nrestrictions?” \n \nA No, sir. \n \n\nJustice – H301714 \n \n-19- \n On cross examination, the claimant was asked about icing and elevating her arm and her \nability to do so at work as follows: \nQ All right. And you keep mentioning this ice and elevate. In \nyour  deposition  we  talked  about  the  elevating  requirement  or \nrecommendation.  Can  you  at  least  demonstrate  for  us  today  what \nyou did for me in your deposition? What is your understanding as \nfar as this elevation of your wrist? \n \nA Above my heart (indicating). \n \nQ Okay. And at any point in time, did anyone associated with \nO’Reilly say, “Hey, don’t do that. Don’t elevate your hand above \nyour heart or your head”? \n \nA They never gave me the time to do it. I was working.  \n \nQ My  question  is  did  anyone  ever  reprimand  you  or  say  you \ncannot do that? \n \nA No. \n \nQ Were  you  allowed – at  O’Reilly  after  surgery  while  on \nmodified  duty,  were  you  allowed  to  take  breaks  as  needed  or  as \nnecessary? \n \nA Yes. \n \nQ And  you  were  also  given  a  lunch  hour  as  part  of  your \nregular workday; correct? \n \nA Yes, sir. \n \nQ Now,  while  on  post-surgery  modified  duty,  did  you  ever \nwork  long  enough  during  the  day  to  make  it  to  take  that  lunch \nhour? \n \nA No, sir. \n \nQ Did you ever even ask anyone at O’Reilly to bump up your \nlunch hour to an earlier time during your shift? \n \nA No, sir. \n \n\nJustice – H301714 \n \n-20- \nQ And  is  it  true  that  you  typically  while  on  post-surgery \nmodified  duty,  that  you  typically  worked  only  90  minutes  to  two \nhours before you left for the day? \n \nA Yes, sir. \n \nQ And  I  know  in  your  deposition  we  also  talked  about  that \nyou are a smoker; correct? \n \nA Yes. \n \nQ And tell me if this remains true. In your deposition you told \nme, “We could go smoke if we wanted to.” Is that correct? \n \nA We could go smoke if we had the opportunity to and no one \nwas  in  the  store  and  we  had  someone  to  cover  the  front  desk.  We \ncouldn’t just walk out and smoke, no. \n \nQ That is not what you told me in your deposition; correct? \n \nA Yes, it was. \n \nQ Are you changing your testimony? \n \nA I’m just saying I did not say we could whenever we wanted \nto  because  there  is  stipulations  on  when  you  can  go  smoke  and \nwhen you cannot. \n \nQ And you did say you didn’t go every five minutes smoking, \nbut  you  did  say  you  took  about  three  to  five  smoke  breaks \nthroughout the day; correct? \n \nA On a full day of working, yes. \n \nQ How many were you taking on a modified day? \n \nA One, two. \n \nQ One to two in a 90-minute span? \n \nA Yes. \n \nQ And  during  those  smoke  breaks,  would  you  elevate  or  ice \nyour hand? \n \n\nJustice – H301714 \n \n-21- \nA I wasn’t out there but two minutes. It wasn’t long enough \nfor me to elevate or ice a hand. \n \nQ So  even  in  those  few  minutes,  you  weren’t  icing  or \nelevating. \n \nA I  probably  had  my  hand  up  while  I  was  sitting  there \nsmoking like this (indicating). \n \nQ Probably. \n \nA Yes. \n \n The claimant has asked the Commission to determine if she is entitled to temporary total \ndisability benefits from July 16, 2023, to a date yet to be determined. On direct examination, the \nclaimant was asked about quitting her employment with the respondent when she simply stopped \ngoing to work as follows: \nQ Now, at some point in time, did you stop going into work? \n \nA Yes, sir. \n \nQ Do you recall when that was? \n \nA July 15\nth\n. \n \nQ And why did you stop going into work? \n \nA Because  they  were  supposed  to  accommodate  me  with  ice \nand time to elevate my arm at least twice a day for 20 minutes and \nthey never accommodated that. \n \nQ Did the fact that your arm, hand and wrist hadn’t gotten any \nbetter play a role in that, in your deciding to just not go in and not \ntry to work? \n \nA Right. After I tried and tried. \n \nQ After you quit working, did your symptoms change any? \n \nA Yes.  My  hand  does  not  swell  as  much  and  I  can  keep  it \ncontrolled with pain medication and the ice and elevation. \n\nJustice – H301714 \n \n-22- \n \n On cross examination, the claimant was asked about quitting work for the respondent and \nreceiving a second offer of restricted duty sent to the claimant as follows: \nQ And  since  your  deposition,  it  looks  like  your  last  day  of \nwork for O’Reilly was actually June 29,  2023,  right  before  the \nFourth of July holiday. Does that sound correct? \n \nA As I told Mr. Mike, I couldn’t remember if it was the end \nof June or July. \n \nQ And the reason that that was your last day of work, in your \ndeposition  you  told  me  that  you  took  yourself  off  of  work.  Is  that \nstill  a  true  and  correct  statement;  that  there  was  no  physician \nactually taking you off work? \n \nA That was my true statement, yes. \n \nQ And again, was there a physician taking you completely off \nwork around the end of June? \n \nA No, sir. \n \nQ All right. So we discussed how that June 7, 2023 return-to-\nwork note, which was Claimant’s Exhibit Page 38 as well as the \nlast  page  of  Respondents’ Exhibit, is the last return-to-work  note. \nAnd then you last worked for O’Reilly there around the end of \nJune. \n \n And  when  we  discussed  those  in  your  deposition  I  asked \nyou,  “Have  you  had  any  communication  with  O’Reilly  since \nthen?” And you said, no, other than a letter that you had received. \nDo you recall telling me that? \n \nA Yes, sir. \n \nQ And  was  the  letter  that  you  referred  to  in  your  deposition \nand  then  ultimately  read  to  us,  was  it  the  offer  to  return  to  work \nfrom O’Reilly dated September 6\nth\n of this year? \n \nA Yes, sir. \n \n MR. STILES: Judge, may I approach? \n \n\nJustice – H301714 \n \n-23- \n THE COURT: You may. \n \nQ [BY  MR.  STILES]:  I  am  going  to  show  this  September  6, \n2023 letter and ask you if this was the letter that you – or a copy of \nthe letter that you received from O’Reilly asking you to return to \nwork? \n \nA Yes, sir. \n \nQ Okay. \n \nA That is the wrong hand, but, yes, sir. \n \nQ A typo, but you understand that they were offering to return \nyou to work in compliance with the restrictions assigned to you on \nJune  7\nth\n.  And  that  is  what  they  reference  there  is  the  June  7\nth\n \nrestrictions. \n \nA Yes, sir. \n \nQ Okay. And did you return this communication to or contact \nO’Reily after receiving this? \n \nA No, sir. I contacted my lawyer. \n \nQ And  did  you  make  any  attempt  to  return  to  work  after \nreceiving that? \n \nA Not that one, no, sir. \n \n The  respondent  in  this  matter  called  Jody  Brownfield  as  a  witness.  Mr.  Brownfield  is \nemployed by the respondent as a store manager and had managed the claimant since he began in \nher store in late March of 2023. Mr. Brownfield was questioned on direct examination about the \nclaimant’s ability to take breaks due to her injury. His direct examination testimony follows: \nQ Okay.  And  while  working  alongside  Ms.  Justice  while  she \nwas working modified duty, would you allow her to take breaks as \nneeded due to her injury? \n \nA Yes,  sir.  When  I  first  took  over  and  I  was  briefed  on  the \nsituation,  I  am  a  simple  person.  I  am  not  a,  you  know,  in-depth \nperson. I pulled her aside and I said, “I was told you need breaks. \n\nJustice – H301714 \n \n-24- \nWhenever you need a break, just let me know and you can go take \na break.” \n \n I mean not flowery or lawyer-like but that is how I said it. \n \n Later  in  direct  examination,  Mr.  Brownfield  was  asked  specifically  about  the  claimant \nbeing able to take breaks to ice and elevate her right arm as follows: \nQ And there was a discussion about this icing and elevating of \nMs. Justice’s hand as a result of her injury. Were you here present \nfor that testimony? \n \nA Yes, sir. \n \nQ And  I  know  that  there  was  no  reference  in  the  medical \nreports  about  the  icing  and  elevating,  but  is  that  something  like \nO’Reilly could accommodate? \n \nA If  she  needed  to  elevate,  obviously,  she  needed  to  take  a \nbreak over to the side, but that is not a big deal. I mean usually the \nway  it  works  is  if  someone  needs  to  do  something  like  a  comfort \nbreak or go to the restroom or something like that, it’s just let me \nknow. If you need a break, tell me. \n \nQ And  are  those  types  of  either  comfort  breaks,  are  they \nlimited as far as number per day? \n \nA No, sir. You can’t limit nature. \n \nQ What’s that? \n \nA You can’t limit nature. \n \nQ Okay.  So  would  you  have  any  objection  to  Ms.  Justice \ntaking a 20-minute break to ice or elevate her hand? \n \nA I will go back to what I said the first time and that is what I \ntold her after I got briefed, “If you need a break, come tell me and \nwe will get you a break.” \n \n\nJustice – H301714 \n \n-25- \n The claimant was again called as a witness for rebuttal testimony. On direct rebuttal, the \nclaimant was asked about requesting to take a 20-minute break to ice and elevate her right arm as \nfollows: \nQ Now,  on  these  20-minute  breaks  to  ice  and  elevate  your \nhands, did you ever try to take one of these breaks? \n \nA No. \n \nQ You never even tried to take one? \n \nA No, because I didn’t have time to take them because I was \nonly working two or three hours a day. \n \nQ So you couldn’t take one in the  first two or three hours? \n \nA Not as busy as we were. There wasn’t enough people there \na lot of times. And I wouldn’t have been able to take a lunch with \njust the very few people that were there. \n \n As  to  the  claimant’s  request  for  temporary  partial  disability  benefits  from  January  24, \n2023,  to  July  15,  2023,  the  claimant  was  clearly  in  her  healing  period  and  on  restricted  duty \nduring that time frame. However, the respondent offered work within the claimant’s restrictions \nand  the  claimant  chose  to  only  do  some  of  the  restricted  duty  work  offered.  The  respondent \noffered  more  work  than  the  claimant  believed  she  could  do  because  of  her  pain.  However,  the \nwork was clearly inside her restrictions and medical providers who placed those restrictions were \nwell  aware  of  the  claimant’s  pain  complaints.  The  claimant  made  a  decision  not  to  work  even \nthough  medical  providers  approved  her  restricted  duty  work  and  the  respondent  offered  that \nwork,  respecting  those  restrictions.  The  claimant’s  reduced  work  hours  and  corresponding \nreduced wages are a function of her choice, not of medical restrictions or the respondent’s ability \nand willingness to provide restricted work ordered by medical providers. The claimant is unable \n\nJustice – H301714 \n \n-26- \nto  prove  her  entitlement  to  temporary  partial  disability  benefits  from  January  24,  2023,  to  July \n15, 2023. \n I  will  now  consider  the  claimant’s  request  for  temporary  total  disability  benefits  from \nJuly 16, 2023, to a date yet to be determined.  A.C.A. §11-9-526 states: \nIf any injured employee  refuses employment suitable to his or her \ncapacity  offered  to  or  procured  for  him  or  her,  he  or  she  shall  not \nbe  entitled  to  any  compensation  during  the  continuance  of  the \nrefusal,  unless  in  the  opinion  of  the  Workers’  Compensation \nCommission, the refusal is justifiable. \n \n Again, in July of 2023, at least up until the hearing in this matter, the claimant remained \nin  her  healing  period.  The  claimant  had  been  placed  on  restricted  duty,  and  the  respondents \nagreed, I find in good faith, to provide the claimant with work inside her restrictions. As late as \nSeptember  6,  2023,  the  claimant  acknowledges  receipt  of  an  offer  for  work  within  her \nrestrictions. That offer of work within her restrictions is found at Respondents’ Exhibit 2. It was \nthe  claimant’s  choice  to  stop  working  due  to  her  pain  which  was  understood  by  medical \nproviders when issuing her restrictions.  \n The claimant, throughout testimony, discusses and answers questions about elevating and \nicing her right wrist and hand. She was specifically asked on direct examination, “And why did \nyou stop going to work?” The claimant responded: \nA Because  they  were  supposed  to  accommodate  me  with  ice \nand time to elevate my arm at least twice a day for 20 minutes and \nthey never accommodated that. \n \nIt  is  clear  throughout  the  claimant’s  own  direct  rebuttal  testimony  that  she  never  tried  or  even \nasked to ice or elevate her right arm.  \nQ Now,  on  these  20-minute  breaks  to  ice  and  elevate  your \nhands, did you ever try to take one of these breaks? \n \n\nJustice – H301714 \n \n-27- \nA No. \n \nQ You never even tried to take one? \n \nA No, because I didn’t have time to take them because I was \nonly working two or three hours a day. \n \n Mr.  Brownfield  testified  that  he  would  have  allowed  the  claimant  to  take  a  break  to \nelevate and ice her right arm. The claimant never even tried to do so according to her own direct \nrebuttal  testimony.  The  claimant  stopped  working  because  she  chose  to  do  so,  not  because  of \nmedical  restrictions  or  an  unwillingness  or  ability  of  the  respondent  to  provide  the  restricted \nwork  she  required.  In  fact,  the  claimant  refused  the  work  she  was  offered  and  did  so  for  no \njustifiable  reason.  The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  her \nentitlement  to  temporary  total  disability  benefits  from  July  16,  2023,  to  a  date  yet  to  be \ndetermined. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  30,  2023,  and  contained  in  a  Pre-hearing  Order  filed  September  6,  2023,  are  hereby \naccepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary partial disability benefits from January 24, 2023, to July 15, 2023. \n\nJustice – H301714 \n \n-28- \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability from July 16, 2023, to a date to be determined. \n 4. The claimant has failed to prove that her attorney is entitled to an attorney fee in this \nmatter. \nORDER \nPursuant to the above findings and conclusions, I have no alternative but to deny this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":44355,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H301714 SASHA JUSTICE, Employee CLAIMANT O’REILLY AUTOMOTIVE, INC., Employer RESPONDENT GALLAGHER BASSETT SERVICES, INC., Carrier RESPONDENT OPINION FILED JANUARY 29, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County...","outcome":"denied","outcomeKeywords":["granted:1","denied:3"],"injuryKeywords":["wrist","back","sprain","shoulder"],"fetchedAt":"2026-05-19T22:58:52.899Z"},{"id":"alj-H301748-2024-01-26","awccNumber":"H301748","decisionDate":"2024-01-26","decisionYear":2024,"opinionType":"alj","claimantName":"Melanie Brown","employerName":null,"title":"BROWN VS. HINO MTRS. MFG. USA, INC.AWCC# H301748 JANUARY 26, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Brown_Melanie_H301748_20240126.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brown_Melanie_H301748_20240126.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301748 \n \n \nMELANIE BROWN, EMPLOYEE CLAIMANT \n \nHINO MTRS. MFG. USA, INC., \n EMPLOYER RESPONDENT \n \nFIRST LIBERTY INS. CORP., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 26, 2024 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on January 26, \n2024, in Marion, Crittenden County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  January 26,  2024,  in \nMarion, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    Admitted  into \nevidence  without  objection  were  the  following:    Commission  Exhibit  1 and \nRespondents’  Exhibit  1,  forms,  pleadings,  and  correspondence  related  to  this \nclaim, consisting of 14 and 10 pages, respectively. \n\nBROWN – H 301748 \n2 \n \n The record reveals the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on  March  15,  2023,  reflects  that \nClaimant  purportedly  suffered an injury to her knee on March 5, 2023, when she \nfell down the stairs at her workplace.  Per the Forms AR-2 filed on March 17 and \n21,  2023,  Respondents  accepted  the  claim  and  paid  medical  and  indemnity \nbenefits pursuant thereto. \n On March 22, 2023, through then-counsel Laura Beth York,  Claimant filed \na  Form  AR-C,  alleging  that  she  was  entitled  to  the  full  range  of  initial  and \nadditional benefits for injuries to her knees, legs, neck, chest, face back, head and \n“other  whole  body.”  No  hearing  request  accompanied  this  filing.  Respondents \ninformed the Commission on March 27, 2023, that their position had not changed \nregarding  the  claim.    Later,  on  October  20,  2023,  York  moved  to  withdraw  from \nher  representation  of  Claimant.    In  an  Order  entered  on  November  3,  2023,  the \nFull Commission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nNovember  8,  2023,  when  Respondents  filed  the  instant  Motion  to  Dismiss, \ncontending that “[n]o hearing has been requested and no efforts to prosecute the \nclaim have been made in the past 6 months.”  On November 14, 2023, my office \nwrote  Claimant,  requesting  a  response  to  the  motion  within 20  days.    This \ncorrespondence  was  sent  by  both  certified and first-class mail  to the address for \nClaimant listed in the file and on her Form AR-C.  Claimant signed for the certified \nletter on November 28, 2023, and the first-class correspondence was not returned \n\nBROWN – H 301748 \n3 \n \nto  the  Commission.  However,  no  response  by  Claimant  to  the  motion  was \nforthcoming. \n On  December  6,  2023, a hearing on Respondents’ motion was scheduled \nfor  January 26,  2024,  at 10:3 0  a.m.  at  the  Crittenden  County  Courthouse  in \nMarion.    The  Notice  of  Hearing  was  sent  to  Claimant  by  certified  and  first-class \nmail  to  the  same  address  as  before.    In  this  instance,  it  could  not  be  verified \nwhether Claimant signed for the certified letter; but again, the first-class letter was \nnot returned. \n The hearing proceeded as scheduled on January 26, 2024.  Claimant failed \nto appear at the hearing.  But Respondents appeared through counsel and argued \nfor dismissal under, inter alia, Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the   Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute her claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n\nBROWN – H 301748 \n4 \n \n5. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction in pursuit of her claim since the filing of her Form AR-C on March 22, 2023.  \nMoreover,  she  failed  to  appear  on  the  hearing  to  argue  against  dismissal  of  the \nclaim,  despite  the  evidence  showing  that  both  she  and  Respondents  were \nprovided  reasonable  notice  of  the  Motion  to Dismiss  and  of  the  hearing  thereon.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause of this finding, it is unnecessary to address the applicability of Ark. Code \nAnn. § 11-9-702(d) (Repl. 2012). \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    The  Commission  and  the  Appellate  Courts have \nexpressed  a  preference  for  dismissals without  prejudice.   See Pr  ofessional \nAdjustment   Bureau   v.   Strong,   75   Ark.   249,   629   S.W.2d   284   (1982)).  \n\nBROWN – H 301748 \n5 \n \nRespondents at the hearing asked for a dismissal without prejudice.  I agree and \nfind  that  the  dismissal  of  this  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":6649,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301748 MELANIE BROWN, EMPLOYEE CLAIMANT HINO MTRS. MFG. USA, INC., EMPLOYER RESPONDENT FIRST LIBERTY INS. CORP., CARRIER RESPONDENT OPINION FILED JANUARY 26, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 26, 2024, in Marion,...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["knee","neck","back"],"fetchedAt":"2026-05-19T22:58:50.817Z"},{"id":"alj-H301107-2024-01-25","awccNumber":"H301107","decisionDate":"2024-01-25","decisionYear":2024,"opinionType":"alj","claimantName":"Traci Jackson","employerName":"Carelink","title":"JACKSON VS. CARELINK AWCC# H301107 JANUARY 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/JACKSON_TRACI_H301107_20240125.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACKSON_TRACI_H301107_20240125.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H301107 \n \nTRACI L. JACKSON, EMPLOYEE       CLAIMANT \n \nCARELINK, EMPLOYER                      RESPONDENT \n \nAGING SERVICES FUND/RISK MANAGEMENT RESOURCES, \nCARRIER/TPA                           RESPONDENT  \n \n \nOPINION FILED 25 JANUARY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe, 24 January 2024, in Little Rock, Pulaski County, Arkansas. \n \nThe pro se claimant failed to appear. \n \nMs. Melissa  Wood, Worley,  Wood  &  Parrish, Attorneys-at-Law  of  Little  Rock,  Arkansas, \nappeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 24 January 2024. This case relates to a workplace injury sustained on or \nabout 20 December 2022, with a First Report of Injury filed with the Commission the \nfollowing day indicating that the claimant injured her leg at work. A Form AR-2, dated 1 \nMarch 2023, was then filed noting that the carrier accepted a right knee injury as a \ncompensable, medical-only claim. A Change of Physician was sought and granted (in an \nAmended Order) by the Medical Cost Containment Division on 4 May 2023. \n The respondents filed their Motion to Dismiss for Failure to Prosecute on 22 \nNovember 2023, stating that the claimant had not sought a hearing on any matter at \ncontroversy in the six (6) months preceding that filing. \n Notice of the respondents’ Motion, and then notice of a hearing date for that Motion \nwas sent to the claimant on 28 November 2023 and 22 December 2023, respectively. I will \n\nT. JACKSON- H301107 \n2 \n \nnote that it is the Commission’s practice for mail relating to Motion to Dismiss hearings sent \nto a pro se claimant be sent via USPS First-Class mail and USPS Certified Mail. Returned \nor undeliverable mail is added to the claimant’s file. The First-Class mailings of the above-\nnoted notices were not returned to the Commission, but a notice for Certified Mail being \nundeliverable was returned to the Commission dated 6 January 2024. \nThe  claimant  did  not  file  an  objection  to  the  dismissal  or  appear  at  the  hearing  to \nargue against the respondents’ Motion. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of that \nMotion. Notice  of  that Motion, and  notice  of  the  hearing  on  that Motion  was sent  to  the \naddress provided by the claimant, and the claimant chose not to appear to resist the motion \nto  dismiss this  action.  The  respondents  appeared,  presented their  motion,  and  offered \nsupporting evidence into the record. \n Arkansas Code  Annotated §11-9-702(a)(4)  states  that  a  matter  may  be  dismissed \nwithout prejudice after six (6) months without a bona fide request for a hearing. Commission \nRule 99.13  provides  for  a  dismissal  for  failure  to  prosecute  an  action  upon  application  by \neither  party. Based  on  the  record, the available  evidence, and the  arguments  of  the \nrespondents’ counsel, I find that the respondents’ Motion to Dismiss should be granted and \nthat the matter should be dismissed without prejudice. \nVI.  ORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3472,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H301107 TRACI L. JACKSON, EMPLOYEE CLAIMANT CARELINK, EMPLOYER RESPONDENT AGING SERVICES FUND/RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED 25 JANUARY 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:58:44.549Z"},{"id":"alj-H006644-2024-01-25","awccNumber":"H006644","decisionDate":"2024-01-25","decisionYear":2024,"opinionType":"alj","claimantName":"Phillip Reese","employerName":"Hollowell Industries, LLC","title":"REESE VS. HOLLOWELL INDUSTRIES, LLC AWCC# H006644 JANUARY 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/REESE_PHILLIP_H006644_20240125.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REESE_PHILLIP_H006644_20240125.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H006644 \n \nPHILLIP REESE, EMPLOYEE        CLAIMANT \n \nHOLLOWELL INDUSTRIES, LLC, EMPLOYER             RESPONDENT \n \nTRAVELERS INDEMNITY CO., CARRIER/TPA                RESPONDENT  \n \n \nOPINION FILED 25 JANUARY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe, 24 January 2024, in Little Rock, Pulaski County, Arkansas. \n \nThe pro se claimant failed to appear. \n \nMs.  Amy C. Markham, Attorney-at-Law  of  Little  Rock,  Arkansas, appeared for  the \nrespondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 24 January 2024. This case relates to a workplace injury sustained on 3 \nSeptember 2020. A First Report of Injury was filed with the Commission on 14 September \n2020 indicating that the claimant’s arm was injured when it was caught in machinery. A \nCommission Form AR-2, dated 16 September 2020, was then filed noting that the carrier \naccepted the claim as compensable and was paying benefits. An initial Form C was filed on \nthe claimant’s behalf on 22 September 2020 and then another of the same was filed on 4 \nAugust 2022, noting Ms. Laura Beth York as the claimant’s counsel. \n A Prehearing Telephone Conference was scheduled on this matter for 21 February \n2023, but that was canceled upon the claimant’s request about a month before that \nconference. The matter was returned to the Commission’s General Files at the same time the \nconference was canceled. Then, on 21 June 2023, Ms. York moved to be relieved as counsel. \n\nREESE- H006644 \n2 \n \nIn an Order dated 13 September 2023, the Full Commission granted that Motion. The \nrespondents filed their Motion to Dismiss on 27 November 2023, stating that the claimant \nhad not sought a hearing on any matter at controversy in the six (6) months preceding that \nfiling. \n Notice of the respondents’ Motion, and then notice of a hearing date for that Motion \nwas sent to the claimant on 1 December 2023 and 22 December 2023, respectively. I will note \nthat it is the Commission’s practice for any mail sent to a pro se claimant regarding Motions \nto Dismiss be sent via USPS First-Class mail and USPS Certified Mail. Returned or \nundeliverable mail is added to the claimant’s file. The First-Class mailings of the above-noted \nnotices were not returned to the Commission, but a notice for Certified Mail being \nundeliverable was returned to the Commission dated 6 January 2024..  \nThe  claimant  did  not  file  an  objection  to  the  dismissal  or  appear  at  the  hearing  to \nargue against the respondents’ Motion. As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of that \nmotion. Notice  of  that Motion, and  notice  of  the  hearing  on  that Motion  was sent  to  the \naddress provided by the claimant, and the claimant chose not to appear to resist the motion \nto  dismiss this  action.  The  respondents  appeared,  presented their Motion,  and  offered \nsupporting evidence into the record. \n Arkansas Code  Annotated §11-9-702(a)(4)  states  that  a  matter  may  be  dismissed \nwithout prejudice after six (6) months without a bona fide request for a hearing. Commission \nRule 99.13  provides  for  a  dismissal  for  failure  to  prosecute  an  action  upon  application  by \neither  party. Based  on  the  record, the available  evidence, and the arguments  of  the \nrespondents’ counsel, I find that the respondents’ Motion to Dismiss should be granted and \nthat the matter should be dismissed without prejudice. \nVI.  ORDER \n\nREESE- H006644 \n3 \n \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3919,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H006644 PHILLIP REESE, EMPLOYEE CLAIMANT HOLLOWELL INDUSTRIES, LLC, EMPLOYER RESPONDENT TRAVELERS INDEMNITY CO., CARRIER/TPA RESPONDENT OPINION FILED 25 JANUARY 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge J...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:58:46.609Z"},{"id":"alj-H204285-2024-01-25","awccNumber":"H204285","decisionDate":"2024-01-25","decisionYear":2024,"opinionType":"alj","claimantName":"Norman Swope","employerName":"Baptist Health System","title":"SWOPE VS. BAPTIST HEALTH SYSTEM AWCC# H204285 JANUARY 25, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SWOPE_NORMAN_H204285_20240125.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SWOPE_NORMAN_H204285_20240125.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H204285 \n \nNORMAN R. SWOPE, EMPLOYEE       CLAIMANT \n \nBAPTIST HEALTH SYSTEM, EMPLOYER             RESPONDENT \n \nBAPTIST HEALTH, CARRIER/TPA                 RESPONDENT \n \n \nOPINION FILED 25 JANUARY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe on 1 November 2023 in Little Rock, Pulaski County, Arkansas. \n \nThe claimant appeared pro se. \n \nMr.  Jarrod S. Parrish,  of  Worley,  Wood  &  Parish,  PA, Attorneys-at-Law  of  Little  Rock,  \nappeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 1 November 2023 in Little Rock, Arkansas, after \nthe  parties  participated  in  a  prehearing  telephone  conference  on 5  September 2023.   The \nsubsequent Prehearing Order, admitted to the record without objection as Commission’s \nExhibit No 1, was entered on the day after the conference.  The Order stated the following \nISSUES TO BE LITIGATED: \n1.  Whether the claimant suffered a compensable injury to his right ankle and left knee. \n2.  Whether the respondents received notice of a claimed injury prior to 4 May 2022. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated into the Prehearing Order. The claimant contends: \n1.   That a second injury was not assessed by a doctor, and his claim was denied by the \ncarrier multiple times. \nThe respondents contend: \n\nSWOPE- H204285  \n2 \n \n1. That the claimant did not sustain compensable injuries to his right ankle or left knee\n on or about 31 March 2022. \n \n2. That the medical documentation does not support objective findings or the need for \ntreatment associated with an incident on the alleged date of injury. \n \n3. That  medical  documentation  does  not  support  off-work  status  as  a  result  of  any \nincident. \n \n4. That  they  did  not  receive  notice  of  a  claimed  injury  until  4  May  2022  and  that  if \ncompensability is found, then they should not be liable for benefits prior to receipt of \nactual notice of a claimed injury. \n \nThat Order also set forth the following STIPULATIONS: \n1. The AWCC has jurisdiction over this claim. \n2. An  employee/employer/carrier  relationship  existed  on 31 March  2022, and  the \nclaimant was entitled to the maximum compensation rates at that time\n1\n. \n \n3. The respondents have controverted this claim in its entirety. \nThe  following  WITNESSES  testified  at  the  hearing:  the  claimant  testified  on  his  own \nbehalf, and Ms. Isobel Louise Balch testified on behalf of the respondents. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses \nand observing their demeanor, I make the following findings of fact and conclusions of law \nunder Arkansas Code Annotated § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The previously noted stipulations are accepted as fact. \n3. The  claimant  failed  to  prove  by  a  preponderance  of  evidence  that  he suffered  a \ncompensable injury. \n \n4. His claims for benefits are denied accordingly. \n \n1\n The  Prehearing  Order  stated  that  the  parties  would  be  required  to  stipulate  to  the \napplicable compensation rate.  Prior to the beginning of the hearing, and then again once on \nthe record, the parties agreed that the claimant’s earnings entitled him to the maximum \ncompensation rate. See TR at 6. \n\nSWOPE- H204285  \n3 \n \nIII.  HEARING TESTIMONY  \nClaimant Norman Swope \nThe  claimant testified  that  he  was  working  as  a  nurse  manager  at  the  respondents’ \nhospital in Little Rock at the time he claims his workplace injury occurred.  [TR at 12.]   He \nwas assigned  to  the  Oncology  Unit,  10A,  where  his  duties  included  ensuring  appropriate \nstaffing, medical equipment maintenance, and other general requirements for patient safety. \nOn the morning relevant to his claim, 31 March 2022, a crash code alerted about 6:45 AM. \nStaff initiated their code procedures and found that they did not have the correct supplies at \nhand.  Mr. Swope ran towards another unit to retrieve what was needed.  He said, “When I \nturned  the  first  corner,  my  ankle  collapsed,  which  caused  me  to  slam  my  other  leg  down, \nwhich  in  turn  popped,  lost  my  balance,  hobbled  to  that  unit,  obtained  the  equipment  we \nneeded, returned, passed it off, and went and sat in my office.” [TR  at  13.]   The  claimant \ntestified that he reported the injury to his supervisor that morning. \nMr. Swope said that he later felt his ability to do recovery exercises for an ankle injury \nnot related to this claim was limited by his knee trouble.  [TR at 15.]  So, he began seeking \nattention for his knee around the time he became aware of those limitations.  \nThe  claimant  stated  that  there  were  no  witnesses  to  his  fall  and  concluded  his  direct \ntestimony.  He offered no documentary evidence in support of his claim. \nOn  cross-examination  the  claimant  confirmed  that  he  experienced  a  previous  work-\nrelated injury to his ankle and that he was familiar with the process for lodging a workers’ \ncompensation claim.  [TR at 16.]  He agreed that he did not request treatment from Baptist \nrelated  to  this  claim  until  after  he  stumbled  in  his  driveway  picking  up  debris  after  a  31 \nMarch 2023 tornado hit Little Rock.  [TR at 20.]  The claimant went on to confirm that during \nhis deposition he testified that “the only reason we’re sitting here  is  because  I  need  to  be \ncovered by light-duty to have my knee worked on or I’ll be off until I’m released.”  [TR at 21.] \n\nSWOPE- H204285  \n4 \n \nThe testimony reflected the claimant’s understanding or belief that a light-duty assignment \nwould only be available if treatment for his knee was related to a workplace injury.  [TR at \n21-22.] \nThe claimant testified further, in a general response to the questioning from respondents’ \ncounsel,  that  everyone  at  work  knew  he  had  a  knee  injury  and (acknowledging  his  ankle \ninjury that is separate from this claim) that he did not want to try treating both legs at the \nsame time.    [TR  at  24.]   He  acknowledged  again  that  he  did  not  have  medical  evidence  to \nsupport his claim and “the exacerbation from a tornado and they’re going to use that as an \nexcuse.”  Id.    When  asked  if  he  wished  to  draw  attention  to any  of  the  medical  evidence \noffered into the record as supportive of his claim, he responded, “No, Your Honor.”  [TR at \n25.] \nIsobel Louise Balch \nMs. Balch testified that she is an administrator and case manager for the respondents’ \nEmployee Health Division.  [TR at 26.]  She stated that she worked with the claimant on an \nearlier  workplace  injury  claim  and  that  she  assisted with or  coordinated  doctor  visits, \nprovider notes, work restrictions, and the like.  According to Ms. Balch, she first learned of \nthe  alleged  workplace  injury  related  to  this  claim  via  physician  notes  she  received  in  the \ncourse of managing his other claim.  [TR at 28.]  She received visit notes in May of 2022 from \nan  appointment  a  month  earlier.   She  then  asked  Mr. Swope  via  email  if  he was  claiming \nthat  his  injury  or  reinjury  happened  at  work.   He  responded  in  the  affirmative  and  then \ncompleted an injury report at her request.  \nShe testified that Mr. Swope did not claim to have made an earlier report of an incident \nor  injury  because  he  did  not  need  treatment for  his knee  and  his  ankle was  already  being \ntreated.  [TR at 29.]  Ms. Balch testified that she did not receive a request for treatment or \nany other request for benefits on this claim until about a year later, after she was made aware \n\nSWOPE- H204285  \n5 \n \nof his stumbling outside of his home cleaning up after the tornado.  [TR at 30.]   Her testimony \nconcluded without any questions from the claimant. \nSummations \nMr.  Swope  concluded  the  hearing  by  saying  that  he tried to be “up front” with his \nemployer, that his supervisor was aware of his attempt to make a timely report of an injury, \nand that although she was not there to offer evidence in support of his claim, his supervisor \nhad been his “biggest advocate.”  [TR  at  31.]   He  also  said  that  he  did  the  therapy  and \nrehabilitation work necessary for his previous ankle injury and that he has “done everything \nthey’ve asked and I don’t really want anything from them.   I  just  want  my  protections  in \nplace....”  [TR at 32.]  He went on, “It doesn’t matter if I’m hurt, if I’ve got a job to do, I’ve got \na  job  to  do.   I don’t want their money.   I don’t want them dictating how I get my care or \ntreatment, but it happened at work.  I told my boss.  She’s been aware of it the entire time. \nAgain, unfortunately she’s not here, and as far as testimony from our representative from my \nhospital, she’s entitled to her opinion, as am I.  That’s all I have to say.”  [TR at 33.] \nCounsel for the respondents began his summation by noting that the claimant’s ankle \ninjury  was  listed  in  the  prehearing  questionnaire  as  a  potential  issue  if  the  claimant  was \narguing a new injury tied to the alleged knee injury.  As he did not testify in that regard, he \nstated  that  the  issue  could  be  disregarded.   On  the  claim  of  a  compensable  knee  injury, \ncounsel argued that no objective medical evidence was presented to support such a finding. \nHe also argued that the lapse of time between the alleged injury and the seeking of treatment, \nalong with the yard or driveway stumbling incident, cut against a finding of a compensable \ninjury.  [TR at 34.]  \nIV.  ADJUDICATION \nThe stipulated facts, as agreed during the prehearing conference, are outlined above.  It \nis settled that the Commission, with the benefit of being in the presence of the witness and \n\nSWOPE- H204285  \n6 \n \nobserving his or her demeanor, determines a witness’ credibility and the appropriate weight \nto accord their statements.  See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 \nS.W.2d 522 (1999).   \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving, by a \npreponderance  of  the  evidence, that  he  sustained  a  compensable  injury  as  the  result  of  a \nworkplace  incident.   Ark. Code  Ann.  §11-9-102(4)(E)(i).   A  compensable  injury  must  be \nestablished  by  medical  evidence  supported  by  objective  findings.   Ark.  Code  Ann.  §11-9-\n102(4)(D).   Objective  medical  findings  are  those  findings  that  cannot  come  under  the \nvoluntary  control  of  the  patient.  Ark.  Code  Ann.  §  11-9-102(16)(A)(i).   Causation  does  not \nneed to be established by objective findings when the objective medical evidence establishes \nthat an injury exists and other nonmedical evidence shows that it is more likely than not that \nthe injury was caused by an incident in the workplace.  Bean v. Reynolds Consumer Prods., \n2022 Ark. App 276, 646 S.W.3d 655, 2022 Ark. App. LEXIS 276, citing Wal-Mart Stores, Inc. \nv. VanWagner, supra. \nThe claimant  alleges  that  his  injury  occurred  by a specific  incident.   The  claimant \nmust establish four (4) factors, by a preponderance of the evidence, to prove a specific incident \ninjury: (1) that the injury arouse during the course of employment; (2) that the injury caused \nan  actual  harm  that  required  medical  attention;  (3)  that  objective  findings  support  the \nmedical evidence; and (4) that the injury was caused by a particular incident, identifiable in \ntime and place.  See Cossey v. G. A. Thomas Racing Stable, 2009 Ark. App. 666,5, 344 S.W.3d \n684, 689. \nBased  on  the  evidence  presented,  I  find  that  Mr.  Swope  fails  to  meet  his  burden  for \nestablishing a compensable injury.  Even accepting as true that he fell during the 31 March \n2022 incident, he has not provided sufficient evidence to support his claim with regard to the \n\nSWOPE- H204285  \n7 \n \nother required elements.  To put it plainly, he offered no evidence to link a fall to an actual \ninjury sustained in the workplace. \nAs noted in the testimony above, Mr. Swope provided no documentary evidence or witness \ntestimony in support of his claim.  He conceded that the respondents’ witness was “entitled \nto her opinion” on this matter as to her relaying what he reported  and  when.   He  did  not \nactually dispute her narrative nor did he cross-examine her as to why the claim was denied. \nHe relied, instead, on his insisting that his supervisor was aware of a fall and injury and if \nshe  had  been  present  to  testify,  she  would  have  supported  his  cause.   That  is  simply  not \nenough  to  meet  his  burden  of  proving  that  it  is  more  likely  than  not  that  he  suffered  any \ncompensable injury in this claim. \nVI.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":13179,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H204285 NORMAN R. SWOPE, EMPLOYEE CLAIMANT BAPTIST HEALTH SYSTEM, EMPLOYER RESPONDENT BAPTIST HEALTH, CARRIER/TPA RESPONDENT OPINION FILED 25 JANUARY 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge JayO. Howe o...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["ankle","knee"],"fetchedAt":"2026-05-19T22:58:48.683Z"},{"id":"alj-H009300-2024-01-24","awccNumber":"H009300","decisionDate":"2024-01-24","decisionYear":2024,"opinionType":"alj","claimantName":"Kimberly Taylor","employerName":"Hino Mtrs. Mfg. USA, Inc","title":"TAYLOR VS. HINO MTRS. MFG. USA, INC. AWCC# H009300 JANUARY 24, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Taylor_Kimberly_H009300_20240124.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Taylor_Kimberly_H009300_20240124.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H009300 \n \n \nKIMBERLY TAYLOR, EMPLOYEE CLAIMANT \n \nHINO MTRS. MFG. USA, INC., \n EMPLOYER RESPONDENT \n \nSOMPO AMER. INS. CO., CARRIER RESPONDENT \n \n \nAMENDED OPINION FILED JANUARY 24, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  October  27,  2023,  in \nMarion, Crittenden County, Arkansas. \n \nClaimant represented by Mr. Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Mr. Jason Ryburn, Attorney at Law, Little Rock, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n On October 27, 2023, the above-captioned claim was heard in Marion, Arkansas.  \nA  prehearing  conference  took  place  on  July  24,  2022.    The  Prehearing  Order  entered \non that date pursuant to the conference was admitted without objection as Commission \nExhibit 1. \nStipulations \n The   parties   discussed   the   stipulations   set   forth   in   Commission   Exhibit  1.  \nFollowing  an  additional  one  reached  at  the  hearing—which  pertains  to  the  period  for \nwhich temporary total disability benefits were paid, supplements language in Stipulation \nNo. 3, and thus will be sited there—they are the following, which I accept: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nTAYLOR – H009300 \n \n2 \n2. The  employer/employee/carrier  relationship  existed  on  or  about  October \n21, 2020. \n3. Respondents initially accepted  Claimant’s  alleged  right  shoulder  injury  as \ncompensable   and   paid   medical   and   temporary   total   benefits   (from \nNovember 6, 2020, through May 12, 2022) pursuant thereto; but they have \nnow controverted this claim in its entirety. \n4. Claimant’s  average  weekly  wage entitles  her  to  compensation  rates  of \n$347.00/$260.00. \nIssues \n The  parties  discussed  the  issues  set  forth  in  Commission  Exhibit  1.    The \nfollowing were litigated: \n1. Whether  Claimant  sustained  compensable  injuries  by  specific  incident  to \nher back and right shoulder. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether   Claimant   is   entitled   to   additional   temporary   total   disability \nbenefits. \n4. Whether  Claimant  is  entitled  to  a  controverted  attorney’s  fee,  including  a \nfee on all indemnity benefits previously paid in this claim. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, as amended, read as follows: \n\nTAYLOR – H009300 \n \n3 \n Claimant: \n1. Claimant  contends  that  she  sustained  injuries  to  her  back  and  right \nshoulder  in  the  course  and  scope  of  her  employment  on  October  21, \n2020,  when  she  was  removing  parts  from  a  machine.    Respondents \ninitially  accepted  the  right  shoulder  as  compensable  and  paid  medical \nand  temporary  total  disability  benefits  from  November  6,  2020,  through \nMay  12,  2022.  Respondents  have  now  controverted  the  claim  in  its \nentirety. \n2. Claimant  was under  the  treatment  of  Christopher  Gross,  APN  with  Coast \nto  Coast  Medical,  who  diagnosed  her  with  a  SLAP  tear  of  the  right \nshoulder and low back pain with radiculopathy.  He recommended an MRI \nof the lumbar spine and a referral to an orthopedist.  Claimant was treating \nwith  Dr.  David  Brown  for  her  shoulder.    Dr.  Brown  opined  that  she \nsustained  a  SLAP  tear  of  the  right  shoulder.    He  was  concerned  with \nperforming  surgery  due  to  her  stiffness.    Brown  recommended  a  second \nopinion   with   an   option   to   treat,   and   kept   Claimant   on   light   duty.  \nRespondents   have   denied  the   recommendations   of Drs.   Gross   and \nBrown. \n3. Claimant  contends  that  she  sustained  compensable  injuries  to  her  back \nand right shoulder.  She is entitled to the recommended MRI of the lumbar \nspine,  physical  therapy  and  a  repair  of  her  right  shoulder  SLAP  tear, \npayment/reimbursement   of  medical   and  out-of-pocket   expenses,   and \n\nTAYLOR – H009300 \n \n4 \nadditional temporary total disability benefits from  May 13, 2022, to a date \nyet to be determined. \n4. All other issues are reserved. \nRespondents: \n1. Claimant did not suffer a compensable back injury.  Her right shoulder was \naccepted and all reasonable and necessary benefits were paid.  She gave \nan  unreliable  effort  in  a  functional  capacity  evaluation,  failed  to  attend \nphysical  therapy  appointments,  and  then  was  released  at  maximum \nmedical  improvement  with  zero  percent  (0%)  impairment  by  Dr.  Charles \nPearce on February 28, 2022. \n2. Respondents  have  not  controverted  the  claim  in  its  entirety  and  do  not \nowe attorney’s fees on previous indemnity. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity to  hear  the \ntestimony  of  the witness  and  to  observe her  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann. §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Respondents’ motion to withdraw Stipulation No. 3 is hereby denied. \n\nTAYLOR – H009300 \n \n5 \n4. Respondents’  motion,  made  after  the  close  of  the  evidence,  to  add  both \nan issue and a contention concerning the alleged running of the statute of \nlimitations regarding one of Claimant’s alleged injuries, is hereby denied. \n5. Claimant has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her back by specific incident. \n6. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her right shoulder by specific incident. \n7. Claimant  has not proven  by a  preponderance  of  the evidence  that she  is \nentitled to reasonable and necessary treatment of her alleged back injury. \n8. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is \nentitled    to    reasonable    and    necessary    medical    treatment   of    her \ncompensable  right  shoulder  injury.    Moreover,  she  has  proven  by  a \npreponderance of the evidence that all of her treatment  therefor that is in \nevidence was reasonable and necessary. \n9. Claimant  has  not  proven  by a  preponderance  of  the evidence  that  she  is \nentitled to additional temporary total disability benefits. \n10. Claimant has proven by a preponderance of the evidence that her counsel \nis  entitled  to  a  controverted  attorney’s  fee on  the  indemnity  benefits \npreviously  paid  under  this  claim,  pursuant  to  Stipulation  No.  3  and  Ark. \nCode Ann. § 11-9-715 (Repl. 2012). \n\nTAYLOR – H009300 \n \n6 \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into  evidence  in \nthis  case  were  the  following:   Claimant’s  Exhibit  1, a  compilation\n1\n  of  her  medical \nrecords, consisting of two index pages and 141 numbered pages thereafter; Claimant’s \n \n \n1\nThis  exhibit  includes  two  Forms  AR-3.    Per  Ark.  Code  Ann.  §  11-9-529(a)-(c) \n(Repl. 2012): \n \n(a) Within ten (10) days after the date of receipt of notice or of knowledge \nof injury or death, the employer shall send to the Workers' Compensation \nCommission a report setting forth: \n \n(1) The name, address, and business of the employer; \n(2) The name, address, and occupation of the employee; \n(3) The cause and nature of the injury or death; \n(4) The year, month, day, and hour when, and the particular locality  \n where, the injury or death occurred; and \n(5) Such other information as the commission may require. \n \n(b) Additional reports with respect to the injury and of the condition of the \nemployee  shall  be  sent  by  the  employer  to  the  commission  at  such  time \nand in such manner as the commission may prescribe. \n \n(c)  Any  report  provided  for  in  subsection  (a)  or  (b)  of  this  section \nshall   not   be   evidence   of   any   fact   stated   in   the   report   in   any \nproceeding  with  respect  to  the  injury  or  death  on  account  of  which \nthe report is made. \n \n(Emphasis  added)    Form  AR-3—one  of  the  numerical,  or  administrative,  forms  of  the \nCommission–is  one  of  the  forms  covered  under  this  provision.    Even  though  no  party \nobjected  to  their  admission,  the  above-highlighted  language  prohibits  the  Commission \nfrom  considering  them  for  the  purpose  of  determining,  inter  alia,  whether  Claimant \nsustained a compensable injury. \n \n \n\nTAYLOR – H009300 \n \n7 \nExhibit 2 a letter to her counsel from Delta Rehab dated January 27, 2022, consisting of \none  page;  Claimant’s  Exhibit  3,  an  affidavit  from  Alvin  Sims  dated  October  20,  2023, \nconsisting of one page; and Respondents’ Exhibit 1, medical and non-medical records, \nconsisting of one index page and 38 numbered pages thereafter. \n Also, I have blue-backed to the record the post-hearing briefs of the parties, both \nfiled on November 10, 2023, and consisting of 12 and 49 (including attachments) pages, \nrespectively. \nPRELIMINARY RULINGS \n Withdrawal of Stipulation No. 3 \n As addressed above, a prehearing telephone conference concerning this matter \ntook  place  on  July  24,  2023—over  three  months  before  the  hearing.    The  Prehearing \nOrder  was  issued  the  same  day  as  the  conference  and   included  the  following \nstipulation: \n3. Respondents  initially accepted  Claimant’s  alleged  right  shoulder  injury  as \ncompensable  and  paid  medical  and  temporary  total  benefits  pursuant \nthereto; but they have now controverted this claim in its entirety. \nNot until the October 27, 2023, hearing did Respondents take issue with the stipulation; \nthey made no earlier effort to amend or withdraw it.  But they did move to withdraw it at \nthe  hearing,  explaining  that  it  was “essentially  a  mistake.”  In  their  attempt  to  support \nthis position, their counsel pointed out that the stipulation ran counter to their contention \nthat reads:  “[Claimant’s] right shoulder was accepted and all reasonable and necessary \nbenefits were paid . . . Respondents have not controverted the claim in its entirety and \n\nTAYLOR – H009300 \n \n8 \ndo  not  owe  attorney’s  fees  on  previous  indemnity.”  However,  the  above-quoted \nstipulation  comports  with  Issue  Nos.  1  and  4,  which  seek  a  determination  regarding \nwhether Claimant suffered a compensable injury to her right shoulder and whether she \nis entitled to a controverted attorney’s fee on indemnity benefits already paid. \n “A  stipulation  is  an  agreement  between  attorneys  respecting  the  conduct  of  the \nlegal proceedings.”  Ark. Dept. of Corr. v. Jackson, 2019 Ark. App. 124, 571 S.W.3d 539 \n(citing Dinwiddie  v.  Syler,  230  Ark.  405,  323  S.W.2d  548  (1959)).    As  a  general  rule, \nparties are bound by their stipulations.  Dempsey v. Merchants Natl. Bank of Fort Smith, \n292  Ark.  207,  729  S.W.2d  150  (1987).    Nonetheless,  the  Commission  may  in  its \ndiscretion permit a party to withdraw a stipulation.  Ark. Dept. of Corr., supra; Jackson v. \nCircle T Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995). \n Here,   Respondents  waited   until   the   last   possible   time—the  addressing   of \npreliminary  matters  at  the  hearing  itself—to  seek  to  withdraw  the  stipulation.  As  the \nArkansas  Court  of  Appeals  wrote  in  Sapp  v.  Tyson  Foods,  2010  Ark.  App.  517,  2010 \nArk.   App.   LEXIS   549, “elementary   principles   of   fair   play”   apply   in   Commission \nproceedings.    The  withdrawal  of  the  stipulation  would  change  the  nature  of  what  the \nparties  reasonably  expected  to  litigate  at  the  hearing.   It would  violate  “elementary \nprinciples of fair play” to allow the withdrawal at that juncture. \n In Circle  T  Express, supra,  the  respondents  were  allowed  to  withdraw  a \nstipulation concerning compensability that they had made in the case prior to the joinder \nof the Second Injury Fund (“SIF”).  The stipulation was included in the prehearing order \nfollowing  the  December  16,  1991,  prehearing  conference.    Thereafter,  the  SIF  was \n\nTAYLOR – H009300 \n \n9 \njoined  to  the  claim,  and  it  took  the  position  that  the  claimant  had  not sustained  a \ncompensable injury.  For that reason, the respondent employer and carrier withdrew the \ncompensability stipulation.  The administrative law judge conducted a hearing and ruled \nthat  while  the  respondent  employer  and  carrier  were  precluded  from  contesting \ncompensability, the SIF could do so.  On appeal, the Full Commission reversed, stating \nthat  “[e]nforcing  the  stipulation  under  the  facts  of  this  case  would  be  contrary  to  basic \nnotions  of  justice  and  fair  play.    These  concepts  require  results  which  are  logically \nconsistent  with  the  findings  made  by  the  fact  finder.”   Jackson  v.  Circle  T  Express, \nClaim  No.  E016465  (Full  Commission  Opinion  filed  February  9,  1994), aff’d,  49  Ark. \nApp. 94, 896 S.W.2d 602 (1995).  The Commission pointed out that if it were to find (for \npurposes  of  the  compensability  issue  raised  by  the  SIF)  that  the  claimant  had  not \nproven  compensability,  while  at  the  same  time  holding  the  respondent  employer  and \ncarrier  to  the  stipulation  that  the  claimant  had  in  fact  sustained  a  compensable  injury, \nwould not be “logically consistent or compatible with the interests of justice or fair play.”  \nId.  The Arkansas Court of Appeals affirmed this decision.  Circle T Express, supra.  In a \nsimilar  vein  here,  Stipulation  No.  3  is  logically  consistent  with  Issue Nos.  1  and  4—\nwhich they parties expected to litigate—and in fact did litigate—at the hearing.  It would \nhardly be “compatible with the interests of justice or fair play” to permit the withdrawal of \nthe stipulation at that juncture. \n As  for  Respondents’  position  that  the  stipulation  was “essentially  a  mistake,”  i n \nArk.  Dept.  of  Corr., supra,  the  Arkansas  Court  of  Appeals  held  that  the  respondent \nemployer and carrier were bound to a stipulation to which they had agreed at a previous \n\nTAYLOR – H009300 \n \n10 \nhearing  concerning  the  claimant’s  average  weekly  wage  and  compensation  rates \n($602.00/$452.00),   even   though   a   subsequent   hearing   (in   which   the   Death   & \nPermanent   Total   Disability   Trust   Fund   participated)   showed   them   to   be   lower, \n($505.00/$379.00).    In  finding  that  the  respondent  employer  and  carrier  were  not \nentitled to a credit for an overpayment of indemnity benefits at an inaccurately high rate, \nthe court wrote: \nAt  the  time  of  the  stipulation,  appellants  should  have  been  aware  of \nJackson’s  employment  and  wage  history,  and  we  cannot find  that  the \nCommission   abused   its   discretion   in   failing   to   allow   appellants   to \nretroactively   withdraw   their   stipulation   and   benefit   from   a   mistake \ndiscovered years after the fact. \n \nIn  the  case  at  hand,  Respondents  had  months  to  consider  the  Prehearing  Order  and \ntake steps to correct any perceived mistake therein.  They did not do so. \n In sum, the evidence preponderates that Respondents should  not be allowed to \nwithdraw their assent to Stipulation No. 3.  Their motion to do so is, respectfully, denied. \n Addition of Statute of Limitations Issue and Contention \n At  the  hearing,  after  testimony  concluded  and  the  parties  had  rested,  the \nfollowing motion was made: \nRespondents  would  move  to  amend  their  contentions  due  to  testimony \nelicited at this hearing, that the statute [of limitations] . . . bars at least one \nof  these  injuries  because  they  were—they  occurred  in  two  different \ninstances, one of which was not claimed. \n \n As the Court of Appeals wrote in Sapp, supra, “elementary principles of fair play” \napply  in  Commission proceedings.   See  also  Circle  T  Express, supra.   I  find that  such \nan  amendment  would  change  the  nature  of  what  the  parties  reasonably  expected  to \n\nTAYLOR – H009300 \n \n11 \nlitigate–and did litigate–at the hearing.  Coming after the close of the evidence, it would \nviolate “elementary principles of fair play” to allow such an amendment at that juncture. \n Respondents  waived  it here  because  they  did  not  raise  it  in  a  timely  manner.  \nSee Poff v. Brown, 374 Ark. 453, 288 S.W.3d 620 (2008); Harris v. Otis, 2020 Ark. App. \n375, 605 S.W.3d 538.  After due consideration, Respondents’ motion is hereby denied. \nADJUDICATION \nA. Compensability \n Introduction.  Claimant has argued that she suffered compensable injuries to her \nback  and  right  shoulder  in  a  specific  incident on  October  21,  2020,  while  working  for \nRespondent  Hino  Motors  Manufacturing  USA,  Inc.  (“Hino”).    Respondents  initially \naccepted  the  alleged  right  shoulder  injury  as  compensable,  but  later  controverted  it.  \nSee supra.  They never accepted the alleged back injury. \n Standards.    In  order  to  prove  the  occurrence  of  an  injury  caused  by  a  specific \nincident identifiable by time and place of occurrence, a claimant must show that:  (1) an \ninjury  occurred  that  arose  out  of  and  in  the  course  of  his  employment; (2)  the  injury \ncaused internal or external harm to the body that required medical services or resulted \nin  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence  supported  by \nobjective  findings,  which  are  those  findings  which  cannot  come  under  the  voluntary \ncontrol  of  the  patient;  and  (4)  the  injury  was  caused  by  a  specific  incident and  is \nidentifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, 56 \nArk.   App.  126,  938  S.W.2d   876   (1997).     If  a   claimant  fails  to   establish   by   a \npreponderance  of  the  evidence  any  of  the  above  elements,  compensation  must  be \n\nTAYLOR – H009300 \n \n12 \ndenied.   Id.  This  standard  means  the  evidence  having  greater  weight  or  convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agric. Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The \nCommission must sort through conflicting evidence and determine the true facts.  Id.  In \nso doing, the Commission is not required to believe the testimony of the claimant or any \nother  witness,  but may  accept  and  translate  into  findings  of fact  only  those portions of \nthe testimony that it deems worthy of belief.  Id. \n Discussion.      Per   the   testimony   of   Claimant,   she   had   been   working   for \nRespondent Hino during the time period at issue as a worker in the rear axle assembly \nsection.    Her  job  was  to “[p]ut  the  seals  on  the  axle  and  screw  down  the  bolts.”  After \nbeing employed there just three days, she became injured on the job.  On October 21, \n2020, she was pulling on an axle that was on the conveyor belt in order to dislodge it.  \nAs  a  result,  she  hurt  her  lower  back  and  her  right  shoulder.    Later,  on  cross-\nexamination,  Claimant  elaborated  that  there were  actually  two  incidents on the  date  in \nquestion.    First,  she  felt  a “pinch”  in  her  lower  back  when  reaching  for  an  axle;  and \nsecond, she felt pain in her shoulder when she was pulling a part down in order to align \nthe  bolts.    According  to  the  medical  records  in  evidence,  when  she  presented  for \ntreatment  at  Coast  to  Coast  Medical  that  same  day,  she  informed  treating  personnel \n\nTAYLOR – H009300 \n \n13 \nthat  she “hurt  [her]  lower  [right]  side  back  pulling  on  [a]  part.”  Although  the  record \nreflects that she was administered a Toradol injection, Claimant did not recall this.  She \nwent back to work.  In a follow-up visit on November 6, 2020, Claimant was noted to be \ntender to palpation of her right shoulder, upper back, and lower back.  Physical therapy \nwas recommended.  Motrin, Tramadol and Zanaflex were prescribed.  While the last of \nthose  medications  is  a  muscle  relaxant,  no  spasms  were  noted  in  the  Coast  to  Coast \nrecords. \n The following exchange took place: \nQ. And what were your complaints?  Do you remember what you were \ncomplaining of in terms of body part and—body parts and pain? \n \nA. My lower back, the swelling in my lower back which was aching, \nand  a  sharp  pain  down  my  right  leg,  and  my  right  shoulder,  the \nswelling and aching going down my right arm. \n \nQ. And  just  so  that—for  the  Judge’s  edification,  are  you  still  having \nthose problems? \n \nA. Yes, sir. \n \nQ. Have you continued to have those problems since this injury? \n \nA. Yes, sir. \n \n(Emphasis added)  But lay observations do not constitute “medical evidence supported \nby  objective  findings.”   Overstreet  v.  Pontiac  Coil,  Inc.,  2004  AR  Work.  Comp.  LEXIS \n361,   Claim   No.   F307136   (Full   Commission   Opinion   filed   November   3,   2004).  \nNotwithstanding  the  above,  the  medical  records  in  evidence  are  silent  as  to  any  back \nswelling.  Her  December  1,  2020,  physical  therapy  record  includes  the  following:  \n“Observation:  swelling continues to R upper trap and R anterior deltoid.”  But I note that \n\nTAYLOR – H009300 \n \n14 \nneither  body  part  pertains  to  the  back—and  certainly  not  the  lower  back.    While \nClaimant  on  December  28,  2020,  told  Coast  to  Coast  Medical  that  her  right shoulder \nwas still swollen, no objective findings of such accompanied it in the report. \n On  March  23,  2021,  Claimant  underwent  an  MRI  of  her  right  shoulder.    The \nreport reads in pertinent part:  “Irregularity of the mid to posterior portion of the superior \nlabrum  is  compatible  with  SLAP  tear.”  The  reading  radiologist,  Dr.  Vu  Loi,  diagnosed \nthe presence of a SLAP tear.  The physician at Coast to Coast Medical opined that the \ntear would require surgery.  Claimant was referred to Dr. David Brown.  He saw her on \nMay 6, 2021, for “right shoulder pain . . . [that] began on 10/21/20 after she pulled on a \npiece  of  equipment  at  work  that  strained  her  shoulder.”    The  doctor wrote  that “[h]er \nmedical  records  state  that  she  has  a  possible  SLAP  tear.”  He  prescribed  Diclofenac \nand  withheld  a  more  definitive  diagnosis  pending  his  own  review  of  the  MRI.    When \nBrown saw her again on May 18, 2021, he concurred with the SLAP tear diagnosis, but \nexpressed  concern  with  proceeding  with  surgery  in  light  of  Claimant’s  stiffness.    He \nadministered  a  steroid  injection  and  ordered  physical  therapy.    According  to  Claimant, \nshe  had  difficulty  obtaining  the  therapy.  He  recommended  that  she  obtain  a  second \nopinion  regarding  her  desire  for  surgery  to  address  the  SLAP  tear.    She last  saw  Dr. \nBrown on August 12, 2021.  On that date, he wrote: \nThe  patient  continues  to  complain  of  pain  and  stiffness.    Her  daughter \nrecently  passed  away  with  Covid.    She  has  not  been  able  to  do  physical \ntherapy  secondary  to  her  daughter’s  situation.    I  am  very  hesitant  to \nproceed  with  any  sort  of  surgery  considering  the  amount  of  patient’s \nstiffness  and apprehension  with  range  of motion.   She has  evidence of a \nSLAP  tear  that  occurred  in  October  2020.    I  recommend  the  patient \nundergo  an  independent  medical  exam  with  an  option  to  treat  via  a \nsecond opinion. \n\nTAYLOR – H009300 \n \n15 \n \n On  February  28,  2022,  Claimant  went  to  Dr.  Pearce.    The  report  of  that  visit \nreads in pertinent part: \nCC:  Right shoulder pain \n \nINJURY DATE:  October 19, 2020 \n \nHPI:    The  patient  is  a  40-yar-old  right-handed  employee  of  Hino  Motors \nwho  was  injured  the  1\nst\n  day  of  training/work  when  she  was  instructed  to \npull  an  axle  off  of  a  line.    She  says  she  could  not  pull  the axle  despite \nleaning  over  the  part  and  as  she  did  so  she  felt  a  pinch  and  pull  in her \nright  shoulder.    She  has  been  on  light  duty  restrictions  since.    She  was \nseen  and  evaluated  on  May  6,  2021  by  Dr.  Davis  Brown  who  prescribed \ndiclofenac and ordered an MRI scan of her shoulder.  Additionally she had \na  cortisone  injection.    Prior  to  that  visit  she had  had  a  course of  therapy, \nmodification activities and anti-inflammatories.  She has never had similar \nproblems  in  the  past.    She  complains  of  neck  and  shoulder  pain.    MRI \nscan  was  done  and  by  report  showed  a  SLAP  tear.    Surgery  apparently \nwas  discussed  but  there  was  concern  that  she  had  not  gained  motion \ndespite  the  above  modalities  to  include  the  steroid  injection.    Dr.  Brown \nasked  for  a  2\nnd\n  opinion.    Currently,  she  is  complaining  of  shoulder, \nshoulder girdle, right neck and arm pain to about the elbow. \n \nPHYSICAL EXAM: \n \n[RIGHT]  SHOULDER:    No  obvious  abnormality  to  inspection.    Wide  area \nof tenderness throughout her shoulder girdle and periscapular.  Difficult to \nestablish range of motion is there is much patient resistance secondary to \npain.  She has give-way weakness in all planes tested.  There is no gross \nmotor  or  sensory  loss  distally  include  radial,  median  and  ulnar  nerves.  \nShe complains of pain with range of motion all directions cervical spine. \n \nIMAGING:    X-rays  ordered  and  interpreted  by  me  surgical  spine  and \nright shoulder show no significant acute abnormality.  There may be \nslight  straightening  of  her  lordotic  curve.    MRI  scan  from  March  23, \n2021  is  a  noncontrast  scan  and  shows  some  possible  undercutting \nof her superior labrum that was labile [sic] a slap tear.  However this \ncan be a normal finding as well. \n \nIMPRESSION:  Right  shoulder,  shoulder  girdle,  arm  pain  and  weakness \nnot consistent with MRI finding of slap tear. \n \n\nTAYLOR – H009300 \n \n16 \nPLAN: \n1. I  would  recommend  a functional  capacity  evaluation  prior to \nany further diagnostic testing or treatment. \n \n2. Patient  can  continue  with  light  duties,  anti-inflammatories  in \nthe interim time. \n \n(Emphasis added) \n Straightening  of  the  lordotic  curve  can  be  an  objective  finding.   See  Estridge  v. \nWaste Mgmt., 343 Ark. 276, 33  S.W.3d 67 (2000).  Pearce’s notation that “[t]here may \nbe  slight  straightening”  of  the  curvature,  however,  falls  short  of  the  standard  of \ndefiniteness needed to establish the presence of an objective finding.  The Commission \nis  authorized  to  accept  or  reject  a  medical  opinion  and  is  authorized  to determine  its \nmedical soundness and probative value.  Poulan Weed Eater v. Marshall, 79 Ark. App. \n129, 84 S.W.3d 878 (2002).  But to credit the above as a definitive finding would require \nthat  I  engage  in  speculation  and  conjecture—which  is  impermissible.   See  Dena \nConstruction Co. v. Herndon, 264 Ark. 791, 796, 575 S.W.2d 155 (1979). \n Claimant underwent the recommended  functional capacity evaluation on April 6, \n2022.  According to the report thereof,  she demonstrated the ability to perform work in \nat least the Sedentary classification.  However, this finding was admittedly very suspect \nbecause  evaluation  showed  that  the  effort  that  Claimant  put  forth  was  extremely \nunreliable: \nRELIABILITY AND CONSISTENCY OF EFFORT \nConsistency  of  effort  testing  obtained  during  this  evaluation  indicate \nsignificant  observational  and  evidence  based  inconsistencies  resulting  in \nself-limiting   behavior   and   sub-maximal   effort.      The   results   of   this \nevaluation  indicate  that  an  unreliable  effort  was  put  forth,  with  27  of  52 \nconsistency   measures   within   expected   limits.      Analysis   of   the   data \n\nTAYLOR – H009300 \n \n17 \ncollected  during  this  evaluation  indicates  that  she  did   not  put  forth \nconsistent  effort.    She  produced  low  and  inconsistent  grip  strength  with \neach  hand  with  C.V.’s  that  indicate  great  variance  with  repeated  trial \ntesting.    She  also  demonstrated  significantly  higher  or  lower  force  with \nboth  the  right  and  left  hand  during  rapid  grip  testing,  which  further \nvalidates  that  less  than  full  effort  was  being  put  forth  with  standard  grip \ntesting.  She also failed to produce an appropriate bell shaped curve with \n5  position  testing.    It  is  also  noted  that  she  demonstrated  inconsistent \nmovement   patterns   and   inconsistent   AROM   of   the   shoulder   when \ncomparing  her  formally  measured  AROM  with  that  demonstrated  during \nfunctional  aspects  of  testing.    She  also  failed  to  produce  a  significant \ncardiovascular  response  to  physical  testing  that  would  indicate  that  a \nsignificant  degree  of  effort  was  being  put  forth.    She  also  demonstrated \nindicators of self limiting effort.  For example, her reaching patterns when \nformally tested were slow, yet when performing a similar task during other \naspects of testing were normal and completed without apparent difficulty.  \nShe also demonstrated a bi-manual floor to knuckle lift of 10 lbs., yet later \ndemonstrated the ability to lift and then carry 20 lbs. when lifting from the \nsame plane. \n \n. . . \n \nFUNCTIONAL LIMITATIONS \nAlthough  Ms.  Taylor  reported  and/or  demonstrated  numerous  functional \nlimitations    during    her    evaluation,    she    also    exhibited    numerous \ninconsistencies  which  invalidated  her  entire  evaluation.    Therefore,  her \ncurrent functional status remains unknown at this time due to her failure to \nproduce  sufficient  objective  data  to  substantiate  her  reported  and/or \ndemonstrated limitations. \n \nAfter  Dr.  Pearce  received  the  functional  capacity  evaluation  report,  he  authored  the \nfollowing addendum on April 18, 2022: \nThe patient  completed  a  functional  capacity  evaluation  on  April  6,  2022.  \nShe   gave   an   unreliable   effort   only   meeting   27   of   52   consistency \nmeasures.  She was placed in at least the sedentary classification of work.  \nHowever this is not valid because of her unreliable effort.  The patient has \nreached maximal medical improvement.  The patient can return to regular \nwork duties without restriction.  There is no indication for further diagnostic \ntesting and/or treatment.  The patient has sustained 0% permanent partial \nimpairment  as  it  pertains  to  her  upper  extremity.    The  statements  are \nmade within a degree of medical certainty. \n \n\nTAYLOR – H009300 \n \n18 \n Reflected  in  her  testimony  and  the  medical  records  in  evidence  is  a  gap  in \nClaimant’s  treatment  of  her  shoulder  until  she  saw  Pearce  for  the  aforementioned \nsecond  opinion.    During  that  six-month-plus  period,  she  went  to  her  primary  care \nphysician.  When she saw APRN Denise Purnell  on February 7, 2022, she complained \nof “low back and hip pain for 3-4 days.”  Claimant did not report what she believed to be \nthe  origin  of  the  pain—and certainly  its  relatively  short  duration  did  not  tie  it  to  the \nOctober 2020 incident at Hino.  When she returned to the clinic on March 4, 2022, she \nsaw Dr. Camdin Gray.  Gray wrote:  “Low back pain—referral to PT as suspect muscle \nspasm.  XR as above, with trial [C]yclobenzaprine.”  As the above shows, the doctor did \nnot observe or palpate a spasm.  He made a therapy referral and prescribed a muscle \nrelaxant based solely on what Claimant related to him.  This is not an objective finding.  \nWhen  physical  therapy  did  not  prove  fruitful,  Dr.  Gray  on  April  13,  2022,  referred \nClaimant for pain management. \n Pursuant to the referral, Claimant went to see Dr. Ted Shields at Pain Treatment \nCenters  of  America  on  October  6,  2022.    The  records  in  evidence  show  that  he has \nbeen  treating  her  for  right  shoulder  and  lower  back  pain.    The  pain  management  has \nconsisted  not  only  of  prescription  medications  such  as  Gabapentin,  Oxycodone, and \nCyclobenzaprine,  but  also  more  invasive  procedures  such  as  lumbar  medial  branch \nblocks and lumbar radiofrequency ablation neurotomies for the back, and suprascapular \nand  axillary  nerve  blocks  for  her  shoulder.  The  pain  management  records  lack  any \nobjective findings of an injury to the back.  While, for instance, Claimant reported relief \nfrom the injections and ablations, this—again—is subjective and not objective in nature.  \n\nTAYLOR – H009300 \n \n19 \nSee  Ark.  Code  Ann.  § 11-9-102(16)(A)(i)  (Repl.  2012)(“‘Objective  findings’”  are  those \nfindings which cannot come under the voluntary control of the patient”).  But Shields did \ninclude  objective  findings  of  Claimant’s  shoulder  in  the  form  of  crepitance.    Because \ncrepitance is a condition that can be heard and/or felt—i.e., perceived with one or more \nof  the  five  senses,  per  DORLAND’S ILLUSTRATED MEDICAL DICTIONARY  433  (30\nth\n  ed. \n2003)— and is not voluntary, it can constitute an objective finding. \n On September 13, 2023, Claimant underwent another MRI of her right shoulder.  \nIn  this  instance,  the  radiological  findings,  by  Dr.  Ezekial  Shotts,  were  of  a “[t]iny”  low-\ngrade  partial  interstitial  tear  at  the  greater  tuberosity  footprint  of  the  infraspinatus \ntendon, and an anterior to posterosuperior labral tear.  She related on the witness stand \nthat she has undergone an MRI of her lumbar spine as well.  But such is not reflected in \nher medical records in evidence. \n Claimant  in  her  testimony  denied  having  any  back  or  shoulder  problems  before \nOctober  21,  2020.    In reference  to  her  credibility  as  a  witness,  the  following  exchange \ntook place on cross-examination: \nQ. So  your  earlier  testimony  that  you  did  work  [at  the  home  health \nbusiness] is incorrect, is that right? \n \nA. I am confused.  I’m sorry, ‘cause I take a lot of meds.  I’m confused.  \nBut I know I tried to work there like three weeks. \n \nQ. Can I ask what meds you’re on right now? \n \nA. I take Percocets and muscle relaxer and— \n \nQ. When did you last take a Percocet? \n \nA. Last night. \n \n\nTAYLOR – H009300 \n \n20 \nQ. Are they affecting your cognition now? \n \nA. Well, I don’t know— \n \nQ. Okay. \n \nA. —‘cause  I  take—I  take  quite  a  bit  of  meds,  and  I  also  take \ndepression meds, too. \n \nQ. Okay.    And  you  understand  that  you’re  under  oath  and  that  the \ncredibility of your testimony is an issue at this hearing? \n \nA. Yes. \n \nLater,  when  questioned  by  the  Commission  on  this  matter,  Claimant  stated  that  her \ntestimony is reliable, but that she gets “confused on the dates.” \n In analyzing the elements of compensability vis-à-vis Claimant’s alleged injuries, \nthe evidence is devoid of objective findings of a back injury.  See supra.  Therefore, that \nportion of her claim must fail at the outset. \n As for her alleged right shoulder injury.  I credit the MRI findings as read by Drs. \nBrown, Loi, and Shott—all of whom found that she sustained tears to the shoulder, and \nwith the first two specifically finding that there was a SLAP tear.  I am unable, based on \nmy review of the evidence, to credit Dr. Pearce, who did not concur in this. \n As  to  whether this  shoulder  injury  arose  out  of  and  in  the  course  of  her \nemployment  at  Respondent  Hino,  and was  caused  by  a  specific  incident  that  is \nidentifiable  by  time  and  place  of occurrence,  the  evidence  shows  that  the  injury  was \nsustained by Claimant on October 21, 2020, while she was pulling on a part so that the \nbolts could be brought into line.  A causal relationship may be established between an \nemployment-related  incident  and  a  subsequent  physical  injury  based  on  the  evidence \n\nTAYLOR – H009300 \n \n21 \nthat the injury manifested itself within a reasonable period of time following the incident, \nso  that  the  injury  is  logically  attributable  to  the incident,  where  there  is  no  other \nreasonable  explanation  for  the  injury. Hall  v.  Pittman  Construction Co.,  234  Ark.  104, \n357 S.W.2d 263 (1962).  That is certainly the case here.  Claimant has, consequently, \nproven  by  a  preponderance  of  the  evidence  that  she  suffered  a  compensable right \nshoulder injury by specific incident. \nB. Medical Treatment \n Introduction.   Claimant  has  alleged  that  she  is  entitled  to  reasonable  and \nnecessary medical treatment in connection with her alleged shoulder and back injuries. \n Standards.    Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012) states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n\nTAYLOR – H009300 \n \n22 \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.  I find that Claimant has proven by a preponderance of the evidence \nthat she is entitled to reasonable and necessary medical treatment of her compensable \nright  shoulder injury.    Moreover,  I  have  reviewed  her  treatment  records  that  are  in \nevidence, and I find that she has proven by a preponderance of the evidence that all of \nthe  treatment  of  her  compensable  right  shoulder  injury  reflected  therein—including  her \npain   management   by   Dr.   Shields   and   the   additional   treatment   that   has   been \nrecommended and/or performed in connection with her shoulder—was reasonable and \nnecessary. \n On  the  other  hand,  because  Claimant  has  not  established  that  she  sustained  a \ncompensable  back  injury,  she  has  not  met  her  burden  of  proving  her  entitlement  to \nreasonable and necessary treatment of it. \n\nTAYLOR – H009300 \n \n23 \nC. Temporary Total Disability \n Introduction.    Claimant  has  also  alleged  that  she  is  entitled  to  temporary  total \ndisability  benefits  from  the  date  last  paid—May  12,  2022—to  a  date  yet  to  be \ndetermined.  Respondents disagree with this. \n Standards.  The compensable injury to Claimant’s right shoulder is unscheduled.  \nSee Ark. Code Ann. § 11-9-521 (Repl. 2012).  An employee who suffers a compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \nwithin the healing period in which he has suffered a total incapacity to earn wages.  Ark. \nState  Hwy.  &  Transp. Dept.  v.  Breshears,  272  Ark. 244,  613  S.W.2d  392  (1981).    The \nhealing  period  ends  when  the  underlying  condition  causing  the  disability has  become \nstable  and  nothing  further  in  the  way  of  treatment  will  improve  that  condition.   Mad \nButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant must \ndemonstrate that the disability lasted more than seven days.  Id. § 11-9-501(a)(1). \n Evidence/Discussion.  During the hearing, Claimant testified as follows: \nQ. Have  you  been  back  to  work  for  Hino  at  any  time  since  this \naccident? \n \nA. No, sir. \n \nThis is at odds with her earlier testimony that she initially continued to work after getting \nhurt.    This  is  confirmed  by  Stipulation  No.  3  and  her  contentions,  which  show  that  her \ntemporary total disability benefits did not begin until November 6, 2020; and that she is \nnot seeking them for any period prior to their cessation as of May 13, 2022.  Claimant \nacknowledged  during  her  testimony  that  following  her  release  by  Pearce,  she  worked \nfor three weeks for a home health provider.  She was able to do this because the client \n\nTAYLOR – H009300 \n \n24 \nshe  was  assigned  only  required  care  that  fell  within  her  previously-assigned  light-duty \nrestrictions.  However, she was unable to continue when her assignment changed—and \nthe duties required in order to care for the new client increased. \n Dr.  Pearce,  based  upon  the  functional  capacity  evaluation,  which  showed  that \nClaimant  gave  an  extremely  unreliable  and  inconsistent  effort,  found  that  Claimant \nreached  maximum  medical  improvement  as  of  the  date  of  his  report  addendum,  April \n18, 2022, and released her to full duty.  Claimant’s testimony was that she was unaware \nof this, and would have attempted to go back to a full-duty job had she known. \n Based  upon  my  review  of  the  totality  of  the  credible  evidence,  I  credit  Dr. \nPearce’s opinion on this matter and find that the evidence preponderates that Claimant \nreached  the  end  of  her  healing  period on  April  18,  2022.  To  the  extent  that  Claimant \ncontinued  to  present  with  pain  in  her  right  shoulder  since  then,  I  note  that persistent \npain,  by  itself,  is  not  sufficient  to  extend  the  healing  period.   See  Mad  Butcher,  supra.  \nConsequently, she has not proven her entitlement to additional temporary total disability \nbenefits for any period. \nD. Controversion \n Introduction.    Claimant  has  asserted  that  she  is  entitled  to  a  controverted \nattorney’s fee in this matter. \n Standard.    Arkansas  Code  Annotated  Section  11-9-715  (Repl.  2012)  is  the \nauthority in this matter.  This provision reads in pertinent part: \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased  employee  .  .  . In  all  other  cases  whenever  the  commission \nfinds  that  a  claim  has  been  controverted,  in  whole  or  in  part,  the \n\nTAYLOR – H009300 \n \n25 \ncommission shall direct that fees for legal services be paid to the attorney \nfor  the  claimant  as  follows:    One-half  (½)  by  the  employer  or  carrier  in \naddition  to  compensation  awarded;  and  one-half  (½)  by  the  injured \nemployee  or  dependents  of  a  deceased  employee  out  of  compensation \npayable to them. \n \n (ii) The fees shall be allowed only on the amount of compensation \nfor indemnity benefits controverted and awarded. \n \nId. § 11-9-715(a)(1)(B) & (a)(2)(B)(i)-(ii).  (Emphasis added)  One of the purposes of the \nattorney's fee statute is to put the economic burden of litigation on the party who makes \nlitigation necessary.  Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1998). \n Discussion.    As  Stipulation  No.  3  has  established,  Respondents  ultimately \ncontroverted    Claimant’s    alleged    right    shoulder    injury—herein    proven    to    be \ncompensable—and  by  extension,  the  indemnity  benefits  that  were  paid  pursuant \nthereto.  Thus, the evidence preponderates that her counsel, the Hon. Andy L. Caldwell, \nis entitled to the controverted fee as set out above on the indemnity benefits  that were \npaid in connection therewith. \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance with  the \nFindings  of  Fact  and  Conclusions  of  Law  set  forth  above.    All  accrued  sums  shall  be \npaid in a lump sum without discount, and this award shall earn interest at the legal rate \nuntil  paid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First \nState Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  the  25  percent  (25%)  attorney’s  fee awarded \nherein,  one-half  of  which  is  to  be  paid  by  Claimant  and  one-half  to be  paid  by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n\nTAYLOR – H009300 \n \n26 \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":46240,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H009300 KIMBERLY TAYLOR, EMPLOYEE CLAIMANT HINO MTRS. MFG. USA, INC., EMPLOYER RESPONDENT SOMPO AMER. INS. CO., CARRIER RESPONDENT AMENDED OPINION FILED JANUARY 24, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 27, 2023, in Marion,...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["shoulder","back","lumbar","neck","cervical","hip"],"fetchedAt":"2026-05-19T22:58:42.474Z"},{"id":"alj-H108821-2024-01-23","awccNumber":"H108821","decisionDate":"2024-01-23","decisionYear":2024,"opinionType":"alj","claimantName":"Wanda Muldrow","employerName":"Department Of Workforce Services","title":"MULDROW VS. DEPARTMENT OF WORKFORCE SERVICES AWCC# H108821 JANUARY 22, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MULDROW_WANDA_H108821_NUNC-PRO-TUNC-ORDER_20240123.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MULDROW_WANDA_H108821_NUNC-PRO-TUNC-ORDER_20240123.pdf","fullText":"1 OF 1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H108821 \n \nWANDA MULDROW, \nEMPLOYEE                                                                                                        CLAIMANT \n \nDEPARTMENT OF WORKFORCE SERVICES, \nEMPLOYER                                                                                                  RESPONDENT \n \nSTATE OF ARKANSAS/PUBLIC EMPLOYEE \nCLAIMS DIVISION, INS. CARRIER/TPA                                               RESPONDENT   \n \nNUNC PRO TUNC ORDER FILED JANUARY 22, 2024 \n \n I find a clerical error(s) exist(s) in the opinion entitled, “Opinion Filed January 19, 2024.” \nSpecifically, on page 1, the opinion should correctly be entitled, “Opinion Filed January 22, 2024.”  \n Ark. Code Ann. §11-9-713(d) (2023 Lexis Replacement) authorizes me to correct clerical \nerrors in such circumstances. This is a proper case for the exercise of that authority. Therefore, the \nOpinion   Filed   January   19,   2024,   hereby   is   modified   and   amended only   to   correct   the \naforementioned  inadvertent  clerical  error  on  Page  1,  and  anywhere  else  it  may  appear  in  the \nOpinion  Filed  January  19,  2024. In  all  other  respects –  including  but  not  limited  to  the \n“FINDINGS OF FACT AND CONCLUSIONS OF LAW” section – the Opinion Filed January \n19, 2024, shall remain the same and shall not otherwise be altered, amended, or affected in any \nway. \n IT IS SO ORDERED.  \n                   ______________________________________ \n                                                                                Mike Pickens \n                                                                                Administrative Law Judge \n                                                                                Entered Nunc Pro Tunc: January 23, 2024","textLength":1849,"preview":"1 OF 1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108821 WANDA MULDROW, EMPLOYEE CLAIMANT DEPARTMENT OF WORKFORCE SERVICES, EMPLOYER RESPONDENT STATE OF ARKANSAS/PUBLIC EMPLOYEE CLAIMS DIVISION, INS. CARRIER/TPA RESPONDENT NUNC PRO TUNC ORDER FILED JANUARY 22, 2024 I find a clerical error(s) exist(...","outcome":"modified","outcomeKeywords":["modified:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:58:34.095Z"},{"id":"alj-H302298-2024-01-23","awccNumber":"H302298","decisionDate":"2024-01-23","decisionYear":2024,"opinionType":"alj","claimantName":"Nicholas Long","employerName":"Simmons Prepared Foods","title":"LONG VS. SIMMONS PREPARED FOODS. AWCC# H302298 JANUARY 23, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/LONG_NICHOLAS_H302298_20240123.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LONG_NICHOLAS_H302298_20240123.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H302298 \n \nNICHOLAS LONG, Employee CLAIMANT \n \nSIMMONS PREPARED FOODS, Employer RESPONDENT \n \nSEDWICK CLAIMS MANAGEMENT, Insurance Carrier/TPA RESPONDENT \n \n \n \n OPINION FILED JANUARY 23, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant unrepresented and appearing PRO SE. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney at Law, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  October  26,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on  October  2,  2023,  and  a  Pre-hearing \nOrder  was  filed  on  October  3,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on June 19, \n2022. \n 3. The claimant sustained a compensable injury in the form of a laceration above his left \neye on June 19, 2022. \n \n\nLong – H302298 \n \n-2- \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  is  entitled  to  compensation  for  facial  disfigurement  that  resulted \nfrom a compensable laceration above his left eye under A.C.A. §11-9-524. \n The claimant's contentions are as follows: \n“On  6/19/2022  I  was  sent  inside  the  oven  to  remove  chicken.  I \ncomplained  about  the  frozen  floor  and  approximately  two  hours \nafter  cleaning  out  freezer   I  slipped  on  ice  and  had  a  facial \nlaceration by my left eye. I have a 1.5-inch scar.” \n \n The respondents’ contentions are as follows: \n“Respondents  contend  that  all  appropriate  benefits  have  been  or \nwill be paid.” \n \n The claimant in this matter is a 28-year-old male who sustained a compensable laceration \nabove  his  left  eye  on  June  19,  2022,  while  employed  by  the  respondent.  The  claimant  testified \nthat he was working to remove chickens from a freezer that was not functioning when he slipped \non some ice. The claimant’s face hit a freezer rack causing a compensable laceration to his face. \nThe  respondent’s  on-site  facility  nurse  took  the  claimant  to  an  emergency  department  in  Van \nBuren, Arkansas, and he was treated by Dr. Lee Morgan Johnson.  \n A medical record from that visit dated June 19, 2022, was introduced into evidence and is \ncomprised  of  four  pages  found  at  Claimant’s  Exhibit  1.  Dr.  Johnson  reported  the  claimant’s \ncompensable  laceration  in  the  left  temple  area  to  be  a  1cm  laceration.  A  photograph  of  the \nclaimant’s  laceration  prior  to  it  being  treated  is  found  at  Respondent’s  Exhibit  1,  page  1. The \nclaimant’s laceration was not stitched by Dr. Johnson; however, it was closed using glue.  \n The   claimant   has   asked   the   Commission   to   determine   whether   he   is   entitled   to \ncompensation  for  facial  disfigurement  that  resulted  from  his  June  19,  2022,  compensable \nlaceration above his left eye under A.C.A. §11-9-524. A.C.A. §11-9-524 states:  \n\nLong – H302298 \n \n-3- \n(a) The    Workers’    Compensation    Commission    shall    award \ncompensation    for    serious    and    permanent    facial    or    head \ndisfigurement  in  a  sum  not  to  exceed  three  thousand  five  hundred \ndollars ($3,500). \n \n(b)  No  award  for  disfigurement  shall  be  entered  until  twelve  (12) \nmonths after the injury. \n \nThe  claimant’s  compensable  laceration  occurred  on  June  19,  2022.  The  hearing  in  this \nmatter was conducted on October 26, 2023. More than 12 months have passed as A.C.A. §11-9-\n524(b)   requires.   Section   (a)   of   §11-9-524   states   in   part, “The   Workers’   Compensation \nCommission    shall    award    compensation    for    serious    and    permanent    facial    or    head \ndisfigurement....”  The  claimant  testified  that  the  scar  from  his  compensable  laceration  has \nremained  the  same  since  its  existence.  I  had  the  opportunity  to  view  the  claimant’s  scar  at  the \nhearing and the close-up photograph of the claimant’s scar taken just prior to the hearing in this \nmatter,  found  at  Joint  Exhibit  1,  page  1.  I  do  find  that  the  claimant’s  1cm  scar  is  permanent  as \nrequired by A.C.A. §11-9-524(a). \n The  claimant  must  also  prove  that  the  facial  or  head  disfigurement,  here,  a  scar,  is \n“serious.” I have reviewed case law and was unable to find suitable precedent regarding A.C.A. \n§11-9-524’s  term  of “serious”  facial  or  head  disfigurement.  Black’s  Law  Dictionary  defines \nserious as: \nSERIOUS. Important; weighty; momentous, grave, great, as in the \nphrases “serious bodily harm,” “serious personal injury,” etc. Ward \nv. State, 70 Tex.Cr.R. 393, 159 S.W. 272, 282; McKee v. State, 93 \nTex.Cr.R. 217, 246 S.W. 1035, 1036. \n \n In  my  personal  viewing  of  the  claimant’s  scar  at  the  hearing  in  this  matter,  I  found  it \ndifficult  to  discern  the  presence  of  the  scar,  even  when  I  understood  its  location.  The  close-up \nphotograph  of  the  claimant’s  scar,  found  at  Joint  Exhibit  1,  does  make  the  scar  much  easier  to \n\nLong – H302298 \n \n-4- \ndiscern. However, I do not believe that the scar above the claimant’s left eye rises to the level of \n“serious” even though it is permanent; as such, the claimant is unable to prove his entitlement for \ncompensation for facial or head disfigurement under A.C.A. §11-9-524. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nOctober  2,  2023,  and  contained  in  a  Pre-hearing  Order  filed  October  3,  2023,  are  hereby \naccepted as fact. \n 2. The claimant has failed prove his entitlement to compensation for facial disfigurement \nthat resulted from his compensable laceration above his left eye under A.C.A. §11-9-524. \n ORDER \nPursuant to the above findings and conclusions, I have no alternative but to deny this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":7118,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H302298 NICHOLAS LONG, Employee CLAIMANT SIMMONS PREPARED FOODS, Employer RESPONDENT SEDWICK CLAIMS MANAGEMENT, Insurance Carrier/TPA RESPONDENT OPINION FILED JANUARY 23, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian Co...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:58:36.154Z"},{"id":"alj-H009300-2024-01-23","awccNumber":"H009300","decisionDate":"2024-01-23","decisionYear":2024,"opinionType":"alj","claimantName":"Kimberly Taylor","employerName":"Hino Mtrs. Mfg. USA, Inc","title":"TAYLOR VS. HINO MTRS. MFG. USA, INC. AWCC# H009300 JANUARY 23, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Taylor_Kimberly_H009300_20240123.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Taylor_Kimberly_H009300_20240123.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H009300 \n \n \nKIMBERLY TAYLOR, EMPLOYEE CLAIMANT \n \nHINO MTRS. MFG. USA, INC., \n EMPLOYER RESPONDENT \n \nSOMPO AMER. INS. CO., CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 23, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  October  27,  2023,  in \nMarion, Crittenden County, Arkansas. \n \nClaimant represented by Mr. Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Mr. Jason Ryburn, Attorney at Law, Little Rock, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n On October 27, 2023, the above-captioned claim was heard in Marion, Arkansas.  \nA  prehearing  conference  took  place  on  July  24,  2022.    The  Prehearing  Order  entered \non that date pursuant to the conference was admitted without objection as Commission \nExhibit 1. \nStipulations \n The   parties   discussed   the   stipulations   set   forth   in   Commission   Exhibit  1.  \nFollowing  an  additional  one  reached  at  the  hearing—which  pertains  to  the  period  for \nwhich temporary total disability benefits were paid, supplements language in Stipulation \nNo. 3, and thus will be sited there—they are the following, which I accept: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nTAYLOR – H009300 \n \n2 \n2. The  employer/employee/carrier  relationship  existed  on  or  about  October \n21, 2020. \n3. Respondents initially accepted  Claimant’s  alleged  right  shoulder  injury  as \ncompensable   and   paid   medical   and   temporary   total   benefits   (from \nNovember 6, 2020, through May 12, 2022) pursuant thereto; but they have \nnow controverted this claim in its entirety. \n4. Claimant’s  average  weekly  wage entitles  her  to  compensation  rates  of \n$347.00/$260.00. \nIssues \n The  parties  discussed  the  issues  set  forth  in  Commission  Exhibit  1.    The \nfollowing were litigated: \n1. Whether  Claimant  sustained  compensable  injuries  by  specific  incident  to \nher back and right shoulder. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether   Claimant   is   entitled   to   additional   temporary   total   disability \nbenefits. \n4. Whether  Claimant  is  entitled  to  a  controverted  attorney’s  fee,  including  a \nfee on all indemnity benefits previously paid in this claim. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, as amended, read as follows: \n\nTAYLOR – H009300 \n \n3 \n Claimant: \n1. Claimant  contends  that  she  sustained  injuries  to  her  back  and  right \nshoulder  in  the  course  and  scope  of  her  employment  on  October  21, \n2020,  when  she  was  removing  parts  from  a  machine.    Respondents \ninitially  accepted  the  right  shoulder  as  compensable  and  paid  medical \nand  temporary  total  disability  benefits  from  November  6,  2020,  through \nMay  12,  2022.  Respondents  have  now  controverted  the  claim  in  its \nentirety. \n2. Claimant  was under  the  treatment  of  Christopher  Gross,  APN  with  Coast \nto  Coast  Medical,  who  diagnosed  her  with  a  SLAP  tear  of  the  right \nshoulder and low back pain with radiculopathy.  He recommended an MRI \nof the lumbar spine and a referral to an orthopedist.  Claimant was treating \nwith  Dr.  David  Brown  for  her  shoulder.    Dr.  Brown  opined  that  she \nsustained  a  SLAP  tear  of  the  right  shoulder.    He  was  concerned  with \nperforming  surgery  due  to  her  stiffness.    Brown  recommended  a  second \nopinion   with   an   option   to   treat,   and   kept   Claimant   on   light   duty.  \nRespondents   have   denied  the   recommendations   of   Drs.   Gross   and \nBrown. \n3. Claimant  contends  that  she  sustained  compensable  injuries  to  her  back \nand right shoulder.  She is entitled to the recommended MRI of the lumbar \nspine,  physical  therapy  and  a  repair  of  her  right  shoulder  SLAP  tear, \npayment/reimbursement   of  medical   and  out-of-pocket   expenses,   and \n\nTAYLOR – H009300 \n \n4 \nadditional temporary total disability benefits from  May 13, 2022, to a date \nyet to be determined. \n4. All other issues are reserved. \nRespondents: \n1. Claimant did not suffer a compensable back injury.  Her right shoulder was \naccepted and all reasonable and necessary benefits were paid.  She gave \nan  unreliable  effort  in  a  functional  capacity  evaluation,  failed  to  attend \nphysical  therapy  appointments,  and  then  was  released  at  maximum \nmedical  improvement  with  zero  percent  (0%)  impairment  by  Dr.  Charles \nPearce on February 28, 2022. \n2. Respondents  have  not  controverted  the  claim  in  its  entirety  and  do  not \nowe attorney’s fees on previous indemnity. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity to  hear  the \ntestimony  of  the witness  and  to  observe her  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann. §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Respondents’ motion to withdraw Stipulation No. 3 is hereby denied. \n\nTAYLOR – H009300 \n \n5 \n4. Respondents’  motion,  made  after  the  close  of  the  evidence,  to  add  both \nan issue and a contention concerning the alleged running of the statute of \nlimitations regarding one of Claimant’s alleged injuries, is hereby denied. \n5. Claimant has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her back by specific incident. \n6. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her right shoulder by specific incident. \n7. Claimant  has not proven  by a  preponderance  of  the evidence  that she  is \nentitled to reasonable and necessary treatment of her alleged back injury. \n8. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is \nentitled    to    reasonable    and    necessary    medical    treatment   of    her \ncompensable  right  shoulder  injury.    Moreover,  she  has  proven  by  a \npreponderance of the evidence that all of her treatment  therefor that is in \nevidence was reasonable and necessary. \n9. Claimant  has  not  proven  by a  preponderance  of  the evidence  that  she  is \nentitled to additional temporary total disability benefits. \n10. Claimant has proven by a preponderance of the evidence that her counsel \nis  entitled  to  a  controverted  attorney’s  fee on  the  indemnity  benefits \npreviously  paid  under  this  claim,  pursuant  to  Stipulation  No.  3  and  Ark. \nCode Ann. § 11-9-715 (Repl. 2012). \n\nTAYLOR – H009300 \n \n6 \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into  evidence  in \nthis  case  were  the  following:   Claimant’s  Exhibit  1, a  compilation\n1\n  of  her  medical \nrecords, consisting of two index pages and 141 numbered pages thereafter; Claimant’s \n \n \n1\nThis  exhibit  includes  two  Forms  AR-3.    Per  Ark.  Code  Ann.  §  11-9-529(a)-(c) \n(Repl. 2012): \n \n(a) Within ten (10) days after the date of receipt of notice or of knowledge \nof injury or death, the employer shall send to the Workers' Compensation \nCommission a report setting forth: \n \n(1) The name, address, and business of the employer; \n(2) The name, address, and occupation of the employee; \n(3) The cause and nature of the injury or death; \n(4) The year, month, day, and hour when, and the particular locality  \n where, the injury or death occurred; and \n(5) Such other information as the commission may require. \n \n(b) Additional reports with respect to the injury and of the condition of the \nemployee  shall  be  sent  by  the  employer  to  the  commission  at  such  time \nand in such manner as the commission may prescribe. \n \n(c)  Any  report  provided  for  in  subsection  (a)  or  (b)  of  this  section \nshall   not   be   evidence   of   any   fact   stated   in   the   report   in   any \nproceeding  with  respect  to  the  injury  or  death  on  account  of  which \nthe report is made. \n \n(Emphasis  added)    Form  AR-3—one  of  the  numerical,  or  administrative,  forms  of  the \nCommission–is  one  of  the  forms  covered  under  this  provision.    Even  though  no  party \nobjected  to  their  admission,  the  above-highlighted  language  prohibits  the  Commission \nfrom  considering  them  for  the  purpose  of  determining,  inter  alia,  whether  Claimant \nsustained a compensable injury. \n \n \n\nTAYLOR – H009300 \n \n7 \nExhibit 2 a letter to her counsel from Delta Rehab dated January 27, 2022, consisting of \none  page;  Claimant’s  Exhibit  3,  an  affidavit  from  Alvin  Sims  dated  October  20,  2023, \nconsisting of one page; and Respondents’ Exhibit 1, medical and non-medical records, \nconsisting of one index page and 38 numbered pages thereafter. \n Also, I have blue-backed to the record the post-hearing briefs of the parties, both \nfiled on November 10, 2023, and consisting of 12 and 49 (including attachments) pages, \nrespectively. \nPRELIMINARY RULINGS \n Withdrawal of Stipulation No. 3 \n As addressed above, a prehearing telephone conference concerning this matter \ntook  place  on  July  24,  2023—over  three  months  before  the  hearing.    The  Prehearing \nOrder  was  issued  the  same  day  as  the  conference  and   included  the  following \nstipulation: \n3. Respondents  initially accepted  Claimant’s  alleged  right  shoulder  injury  as \ncompensable  and  paid  medical  and  temporary  total  benefits  pursuant \nthereto; but they have now controverted this claim in its entirety. \nNot until the October 27, 2023, hearing did Respondents take issue with the stipulation; \nthey made no earlier effort to amend or withdraw it.  But they did move to withdraw it at \nthe  hearing,  explaining  that  it  was “essentially  a  mistake.”  In  their  attempt  to  support \nthis position, their counsel pointed out that the stipulation ran counter to their contention \nthat reads:  “[Claimant’s] right shoulder was accepted and all reasonable and necessary \nbenefits were paid . . . Respondents have not controverted the claim in its entirety and \n\nTAYLOR – H009300 \n \n8 \ndo  not  owe  attorney’s  fees  on  previous  indemnity.”  However,  the  above-quoted \nstipulation  comports  with  Issue  Nos.  1  and  4,  which  seek  a  determination  regarding \nwhether Claimant suffered a compensable injury to her right shoulder and whether she \nis entitled to a controverted attorney’s fee on indemnity benefits already paid. \n “A  stipulation  is  an  agreement  between  attorneys  respecting  the  conduct  of  the \nlegal proceedings.”  Ark. Dept. of Corr. v. Jackson, 2019 Ark. App. 124, 571 S.W.3d 539 \n(citing Dinwiddie  v.  Syler,  230  Ark.  405,  323  S.W.2d  548  (1959)).    As  a  general  rule, \nparties are bound by their stipulations.  Dempsey v. Merchants Natl. Bank of Fort Smith, \n292  Ark.  207,  729  S.W.2d  150  (1987).    Nonetheless,  the  Commission  may  in  its \ndiscretion permit a party to withdraw a stipulation.  Ark. Dept. of Corr., supra; Jackson v. \nCircle T Express, 49 Ark. App. 94, 896 S.W.2d 602 (1995). \n In Gillespie  v.  E-Z  Mart,  Inc.,  1997  AWCC  191,  Claim  No.  E516049  (Full \nCommission  Opinion  filed  April  18,  1997),  the  Commission  stated:    “Although  we \nrecognize that a party can withdraw a stipulation, we specifically find that they must do \nso  prior  to  the  matter  being  submitted  for  determination.”   Here,  Respondents  waited \nuntil the last possible time—the addressing of preliminary matters at the hearing itself—\nto seek to withdraw the stipulation.  As the Arkansas Court of Appeals wrote in Sapp v. \nTyson Foods, 2010 Ark. App. 517, 2010 Ark. App. LEXIS 549, “elementary principles of \nfair  play”  apply  in  Commission  proceedings.   The  withdrawal  of  the  stipulation  would \nchange the nature of what the parties reasonably expected to litigate at the hearing.  It \nwould violate “elementary principles of fair play” to allow the withdrawal at that juncture. \n\nTAYLOR – H009300 \n \n9 \n In Circle  T  Express, supra,  the  respondents  were  allowed  to  withdraw  a \nstipulation concerning compensability that they had made in the case prior to the joinder \nof the Second Injury Fund (“SIF”).  The stipulation was included in the prehearing order \nfollowing  the  December  16,  1991,  prehearing  conference.    Thereafter,  the  SIF  was \njoined  to  the  claim,  and  it  took  the  position  that  the  claimant  had  not sustained  a \ncompensable injury.  For that reason, the respondent employer and carrier withdrew the \ncompensability stipulation.  The administrative law judge conducted a hearing and ruled \nthat  while  the  respondent  employer  and  carrier  were  precluded  from  contesting \ncompensability, the SIF could do so.  On appeal, the Full Commission reversed, stating \nthat  “[e]nforcing  the  stipulation  under  the  facts  of  this  case  would  be  contrary  to  basic \nnotions  of  justice  and  fair  play.    These  concepts  require  results  which  are  logically \nconsistent  with  the  findings  made  by  the  fact  finder.”   Jackson  v.  Circle  T  Express, \nClaim  No.  E016465  (Full  Commission  Opinion  filed  February  9,  1994), aff’d,  49  Ark. \nApp. 94, 896 S.W.2d 602 (1995).  The Commission pointed out that if it were to find (for \npurposes  of  the  compensability  issue  raised  by  the  SIF)  that  the  claimant  had  not \nproven  compensability,  while  at  the  same  time  holding  the  respondent  employer  and \ncarrier  to  the  stipulation  that  the  claimant  had  in  fact  sustained  a  compensable  injury, \nwould not be “logically consistent or compatible with the interests of justice or fair play.”  \nId.  The Arkansas Court of Appeals affirmed this decision.  Circle T Express, supra.  In a \nsimilar  vein  here,  Stipulation  No.  3  is  logically  consistent  with  Issue Nos.  1  and  4—\nwhich they parties expected to litigate—and in fact did litigate—at the hearing.  It would \n\nTAYLOR – H009300 \n \n10 \nhardly be “compatible with the interests of justice or fair play” to permit the withdrawal of \nthe stipulation at that juncture. \n As  for  Respondents’  position  that  the  stipulation  was “essentially  a  mistake,”  i n \nArk.  Dept.  of  Corr., supra,  the  Arkansas  Court  of  Appeals  held  that  the  respondent \nemployer and carrier were bound to a stipulation to which they had agreed at a previous \nhearing  concerning  the  claimant’s  average  weekly  wage  and  compensation  rates \n($602.00/$452.00),   even   though   a   subsequent   hearing   (in   which   the   Death   & \nPermanent   Total   Disability   Trust   Fund   participated)   showed   them   to   be   lower, \n($505.00/$379.00).    In  finding  that  the  respondent  employer  and  carrier  were  not \nentitled to a credit for an overpayment of indemnity benefits at an inaccurately high rate, \nthe court wrote: \nAt  the  time  of  the  stipulation,  appellants  should  have  been  aware  of \nJackson’s  employment  and  wage  history,  and  we  cannot find  that  the \nCommission   abused   its   discretion   in   failing   to   allow   appellants   to \nretroactively   withdraw   their   stipulation   and   benefit   from   a   mistake \ndiscovered years after the fact. \n \nIn  the  case  at  hand,  Respondents  had  months  to  consider  the  Prehearing  Order  and \ntake steps to correct any perceived mistake therein.  They did not do so. \n In sum, the evidence preponderates that Respondents should  not be allowed to \nwithdraw their assent to Stipulation No. 3.  Their motion to do so is, respectfully, denied. \n Addition of Statute of Limitations Issue and Contention \n At  the  hearing,  after  testimony  concluded  and  the  parties  had  rested,  the \nfollowing motion was made: \nRespondents  would  move  to  amend  their  contentions  due  to  testimony \nelicited at this hearing, that the statute [of limitations] . . . bars at least one \n\nTAYLOR – H009300 \n \n11 \nof  these  injuries  because  they  were—they  occurred  in  two  different \ninstances, one of which was not claimed. \n \n As the Court of Appeals wrote in Sapp, supra, “elementary principles of fair play” \napply  in  Commission proceedings.   See  also  Circle  T  Express, supra.   I  find that  such \nan  amendment  would  change  the  nature  of  what  the  parties  reasonably  expected  to \nlitigate–and did litigate–at the hearing.  Coming after the close of the evidence, it would \nviolate “elementary principles of fair play” to allow such an amendment at that juncture. \n In  addition,  the  allegation  that  the  statute  of  limitations  has  run is  an  affirmative \ndefense.  See Johnson v. Elkhart Prods. Corp., AWCC No. D303314 (Full Commission \nOpinion filed March 28, 1995).  Respondents waived it here because they did not raise \nit in a timely manner.  See Poff v. Brown, 374 Ark. 453, 288 S.W.3d 620 (2008); Harris \nv.  Otis,  2020  Ark.  App.  375,  605  S.W.3d  538.  After  due  consideration,  Respondents’ \nmotion is hereby denied. \nADJUDICATION \nA. Compensability \n Introduction.  Claimant has argued that she suffered compensable injuries to her \nback  and  right  shoulder  in  a  specific  incident on  October  21,  2020,  while  working  for \nRespondent  Hino  Motors  Manufacturing  USA,  Inc.  (“Hino”).    Respondents  initially \naccepted  the  alleged  right  shoulder  injury  as  compensable,  but  later  controverted  it.  \nSee supra.  They never accepted the alleged back injury. \n Standards.    In  order  to  prove  the  occurrence  of  an  injury  caused  by  a  specific \nincident identifiable by time and place of occurrence, a claimant must show that:  (1) an \ninjury  occurred  that  arose  out  of  and  in  the  course  of  his  employment; (2)  the  injury \n\nTAYLOR – H009300 \n \n12 \ncaused internal or external harm to the body that required medical services or resulted \nin  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence  supported  by \nobjective  findings,  which  are  those  findings  which  cannot  come  under  the  voluntary \ncontrol  of  the  patient;  and  (4)  the  injury  was  caused  by  a  specific  incident and  is \nidentifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, 56 \nArk.   App.  126,  938  S.W.2d   876   (1997).     If  a   claimant  fails  to   establish   by   a \npreponderance  of  the  evidence  any  of  the  above  elements,  compensation  must  be \ndenied.   Id.  This  standard  means  the  evidence  having  greater  weight  or  convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agric. Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The \nCommission must sort through conflicting evidence and determine the true facts.  Id.  In \nso doing, the Commission is not required to believe the testimony of the claimant or any \nother  witness,  but may  accept  and  translate  into  findings  of fact  only  those portions of \nthe testimony that it deems worthy of belief.  Id. \n Discussion.      Per   the   testimony   of   Claimant,   she   had   been   working   for \nRespondent Hino during the time period at issue as a worker in the rear axle assembly \nsection.    Her  job  was  to “[p]ut  the  seals  on  the  axle  and  screw  down  the  bolts.”  After \nbeing employed there just three days, she became injured on the job.  On October 21, \n\nTAYLOR – H009300 \n \n13 \n2020, she was pulling on an axle that was on the conveyor belt in order to dislodge it.  \nAs  a  result,  she  hurt  her  lower  back  and  her  right  shoulder.    Later,  on  cross-\nexamination,  Claimant  elaborated  that  there were  actually  two  incidents on the  date  in \nquestion.    First,  she  felt  a “pinch”  in  her  lower  back  when  reaching  for  an  axle;  and \nsecond, she felt pain in her shoulder when she was pulling a part down in order to align \nthe  bolts.    According  to  the  medical  records  in  evidence,  when  she  presented  for \ntreatment  at  Coast  to  Coast  Medical  that  same  day,  she  informed  treating  personnel \nthat  she “hurt  [her]  lower  [right]  side  back  pulling  on  [a]  part.”  Although  the  record \nreflects that she was administered a Toradol injection, Claimant did not recall this.  She \nwent back to work.  In a follow-up visit on November 6, 2020, Claimant was noted to be \ntender to palpation of her right shoulder, upper back, and lower back.  Physical therapy \nwas recommended.  Motrin, Tramadol and Zanaflex were prescribed.  While the last of \nthose  medications  is  a  muscle  relaxant,  no  spasms  were  noted  in  the  Coast  to  Coast \nrecords. \n The following exchange took place: \nQ. And what were your complaints?  Do you remember what you were \ncomplaining of in terms of body part and—body parts and pain? \n \nA. My lower back, the swelling in my lower back which was aching, \nand  a  sharp  pain  down  my  right  leg,  and  my  right  shoulder,  the \nswelling and aching going down my right arm. \n \nQ. And  just  so  that—for  the  Judge’s  edification,  are  you  still  having \nthose problems? \n \nA. Yes, sir. \n \nQ. Have you continued to have those problems since this injury? \n \n\nTAYLOR – H009300 \n \n14 \nA. Yes, sir. \n \n(Emphasis added)  But lay observations do not constitute “medical evidence supported \nby  objective  findings.”   Overstreet  v.  Pontiac  Coil,  Inc.,  2004  AR  Work.  Comp.  LEXIS \n361,   Claim   No.   F307136   (Full   Commission   Opinion   filed   November   3,   2004).  \nNotwithstanding  the  above,  the  medical  records  in  evidence  are  silent  as  to  any  back \nswelling.  Her  December  1,  2020,  physical  therapy  record  includes  the  following:  \n“Observation:  swelling continues to R upper trap and R anterior deltoid.”  But I note that \nneither  body  part  pertains  to  the  back—and  certainly  not  the  lower  back.    While \nClaimant  on  December  28,  2020,  told  Coast  to  Coast  Medical  that  her  right shoulder \nwas still swollen, no objective findings of such accompanied it in the report. \n On  March  23,  2021,  Claimant  underwent  an  MRI  of  her  right  shoulder.    The \nreport reads in pertinent part:  “Irregularity of the mid to posterior portion of the superior \nlabrum  is  compatible  with  SLAP  tear.”  The  reading  radiologist,  Dr.  Vu  Loi,  diagnosed \nthe presence of a SLAP tear.  The physician at Coast to Coast Medical opined that the \ntear would require surgery.  Claimant was referred to Dr. David Brown.  He saw her on \nMay 6, 2021, for “right shoulder pain . . . [that] began on 10/21/20 after she pulled on a \npiece  of  equipment  at  work  that  strained  her  shoulder.”    The  doctor wrote  that “[h]er \nmedical  records  state  that  she  has  a  possible  SLAP  tear.”  He  prescribed  Diclofenac \nand  withheld  a  more  definitive  diagnosis  pending  his  own  review  of  the  MRI.    When \nBrown saw her again on May 18, 2021, he concurred with the SLAP tear diagnosis, but \nexpressed  concern  with  proceeding  with  surgery  in  light  of  Claimant’s  stiffness.    He \nadministered  a  steroid  injection  and  ordered  physical  therapy.    According  to  Claimant, \n\nTAYLOR – H009300 \n \n15 \nshe  had  difficulty  obtaining  the  therapy.  He  recommended  that  she  obtain  a  second \nopinion  regarding  her  desire  for  surgery  to  address  the  SLAP  tear.    She last  saw  Dr. \nBrown on August 12, 2021.  On that date, he wrote: \nThe  patient  continues  to  complain  of  pain  and  stiffness.    Her  daughter \nrecently  passed  away  with  Covid.    She  has  not  been  able  to  do  physical \ntherapy  secondary  to  her  daughter’s  situation.    I  am  very  hesitant  to \nproceed  with  any  sort  of  surgery  considering  the  amount  of  patient’s \nstiffness  and apprehension  with  range  of motion.   She has  evidence of a \nSLAP  tear  that  occurred  in  October  2020.    I  recommend  the  patient \nundergo  an  independent  medical  exam  with  an  option  to  treat  via  a \nsecond opinion. \n \n On  February  28,  2022,  Claimant  went  to  Dr.  Pearce.    The  report  of  that  visit \nreads in pertinent part: \nCC:  Right shoulder pain \n \nINJURY DATE:  October 19, 2020 \n \nHPI:    The  patient  is  a  40-yar-old  right-handed  employee  of  Hino  Motors \nwho  was  injured  the  1\nst\n  day  of  training/work  when  she  was  instructed  to \npull  an  axle  off  of  a  line.    She  says  she  could  not  pull  the  axle  despite \nleaning  over  the  part  and  as  she  did  so  she  felt  a  pinch  and  pull  in her \nright  shoulder.    She  has  been  on  light  duty  restrictions  since.    She  was \nseen  and  evaluated  on  May  6,  2021  by  Dr.  Davis  Brown  who  prescribed \ndiclofenac and ordered an MRI scan of her shoulder.  Additionally she had \na  cortisone  injection.    Prior  to  that  visit  she had  had  a  course of  therapy, \nmodification activities and anti-inflammatories.  She has never had similar \nproblems  in  the  past.    She  complains  of  neck  and  shoulder  pain.    MRI \nscan  was  done  and  by  report  showed  a  SLAP  tear.    Surgery  apparently \nwas  discussed  but  there  was  concern  that  she  had  not  gained  motion \ndespite  the  above  modalities  to  include  the  steroid  injection.    Dr.  Brown \nasked  for  a  2\nnd\n  opinion.    Currently,  she  is  complaining  of  shoulder, \nshoulder girdle, right neck and arm pain to about the elbow. \n \nPHYSICAL EXAM: \n \n[RIGHT]  SHOULDER:    No  obvious  abnormality  to  inspection.    Wide  area \nof tenderness throughout her shoulder girdle and periscapular.  Difficult to \nestablish range of motion is there is much patient resistance secondary to \n\nTAYLOR – H009300 \n \n16 \npain.  She has give-way weakness in all planes tested.  There is no gross \nmotor  or  sensory  loss  distally  include  radial,  median  and  ulnar  nerves.  \nShe complains of pain with range of motion all directions cervical spine. \n \nIMAGING:    X-rays  ordered  and  interpreted  by  me  surgical  spine  and \nright shoulder show no significant acute abnormality.  There may be \nslight  straightening  of  her  lordotic  curve.    MRI  scan  from  March  23, \n2021  is  a  noncontrast  scan  and  shows  some  possible  undercutting \nof her superior labrum that was labile [sic] a slap tear.  However this \ncan be a normal finding as well. \n \nIMPRESSION:  Right  shoulder,  shoulder  girdle,  arm  pain  and  weakness \nnot consistent with MRI finding of slap tear. \n \nPLAN: \n1. I  would  recommend  a functional  capacity  evaluation  prior to \nany further diagnostic testing or treatment. \n \n2. Patient  can  continue  with  light  duties,  anti-inflammatories  in \nthe interim time. \n \n(Emphasis added) \n Straightening  of  the  lordotic  curve  can  be  an  objective  finding.   See  Estridge  v. \nWaste Mgmt., 343 Ark. 276, 33  S.W.3d 67 (2000).  Pearce’s notation that “[t]here may \nbe  slight  straightening”  of  the  curvature,  however,  falls  short  of  the  standard  of \ndefiniteness needed to establish the presence of an objective finding.  The Commission \nis  authorized  to  accept  or  reject  a  medical  opinion  and  is  authorized  to determine  its \nmedical soundness and probative value.  Poulan Weed Eater v. Marshall, 79 Ark. App. \n129, 84 S.W.3d 878 (2002).  But to credit the above as a definitive finding would require \nthat  I  engage  in  speculation  and  conjecture—which  is  impermissible.   See  Dena \nConstruction Co. v. Herndon, 264 Ark. 791, 796, 575 S.W.2d 155 (1979). \n Claimant underwent the recommended  functional capacity evaluation on April 6, \n2022.  According to the report thereof,  she demonstrated the ability to perform work in \n\nTAYLOR – H009300 \n \n17 \nat least the Sedentary classification.  However, this finding was admittedly very suspect \nbecause  evaluation  showed  that  the  effort  that  Claimant  put  forth  was  extremely \nunreliable: \nRELIABILITY AND CONSISTENCY OF EFFORT \nConsistency  of  effort  testing  obtained  during  this  evaluation  indicate \nsignificant  observational  and  evidence  based  inconsistencies  resulting  in \nself-limiting   behavior   and   sub-maximal   effort.      The   results   of   this \nevaluation  indicate  that  an  unreliable  effort  was  put  forth,  with  27  of  52 \nconsistency   measures   within   expected   limits.      Analysis   of   the   data \ncollected  during  this  evaluation  indicates  that  she  did  not  put  forth \nconsistent  effort.    She  produced  low  and  inconsistent  grip  strength  with \neach  hand  with  C.V.’s  that  indicate  great  variance  with  repeated  trial \ntesting.    She  also  demonstrated  significantly  higher  or  lower  force  with \nboth  the  right  and  left  hand  during  rapid  grip  testing,  which  further \nvalidates  that  less  than  full  effort  was  being  put  forth  with  standard  grip \ntesting.  She also failed to produce an appropriate bell shaped curve with \n5  position  testing.    It  is  also  noted  that  she  demonstrated  inconsistent \nmovement   patterns   and   inconsistent   AROM   of   the   shoulder   when \ncomparing  her  formally  measured  AROM  with  that  demonstrated  during \nfunctional  aspects  of  testing.    She  also  failed  to  produce  a  significant \ncardiovascular  response  to  physical  testing  that  would  indicate  that  a \nsignificant  degree  of  effort  was  being  put  forth.    She  also  demonstrated \nindicators of self limiting effort.  For example, her reaching patterns when \nformally tested were slow, yet when performing a similar task during other \naspects of testing were normal and completed without apparent difficulty.  \nShe also demonstrated a bi-manual floor to knuckle lift of 10 lbs., yet later \ndemonstrated the ability to lift and then carry 20 lbs. when lifting from the \nsame plane. \n \n. . . \n \nFUNCTIONAL LIMITATIONS \nAlthough  Ms.  Taylor  reported  and/or  demonstrated  numerous  functional \nlimitations    during    her    evaluation,    she    also    exhibited    numerous \ninconsistencies  which  invalidated  her  entire  evaluation.    Therefore,  her \ncurrent functional status remains unknown at this time due to her failure to \nproduce  sufficient  objective  data  to  substantiate  her  reported  and/or \ndemonstrated limitations. \n \n\nTAYLOR – H009300 \n \n18 \nAfter  Dr.  Pearce  received  the  functional  capacity  evaluation  report,  he  authored  the \nfollowing addendum on April 18, 2022: \nThe patient  completed  a  functional  capacity  evaluation  on  April  6,  2022.  \nShe   gave   an   unreliable   effort   only   meeting   27   of   52   consistency \nmeasures.  She was placed in at least the sedentary classification of work.  \nHowever this is not valid because of her unreliable effort.  The patient has \nreached maximal medical improvement.  The patient can return to regular \nwork duties without restriction.  There is no indication for further diagnostic \ntesting and/or treatment.  The patient has sustained 0% permanent partial \nimpairment  as  it  pertains  to  her  upper  extremity.    The  statements  are \nmade within a degree of medical certainty. \n \n Reflected  in  her  testimony  and  the  medical  records  in  evidence  is  a  gap  in \nClaimant’s  treatment  of  her  shoulder  until  she  saw  Pearce  for  the  aforementioned \nsecond  opinion.    During  that  six-month-plus  period,  she  went  to  her  primary  care \nphysician.  When she saw APRN Denise Purnell  on February 7, 2022, she complained \nof “low back and hip pain for 3-4 days.”  Claimant did not report what she believed to be \nthe  origin  of  the  pain—and certainly  its  relatively  short  duration  did  not  tie  it  to  the \nOctober 2020 incident at Hino.  When she returned to the clinic on March 4, 2022, she \nsaw Dr. Camdin Gray.  Gray wrote:  “Low back pain—referral to PT as suspect muscle \nspasm.  XR as above, with trial [C]yclobenzaprine.”  As the above shows, the doctor did \nnot observe or palpate a spasm.  He made a therapy referral and prescribed a muscle \nrelaxant based solely on what Claimant related to him.  This is not an objective finding.  \nWhen  physical  therapy  did  not  prove  fruitful,  Dr.  Gray  on  April  13,  2022,  referred \nClaimant for pain management. \n Pursuant to the referral, Claimant went to see Dr. Ted Shields at Pain Treatment \nCenters  of  America  on  October  6,  2022.    The  records  in  evidence  show  that  he has \n\nTAYLOR – H009300 \n \n19 \nbeen  treating  her  for  right  shoulder  and  lower  back  pain.    The  pain  management  has \nconsisted  not  only  of  prescription  medications  such  as  Gabapentin,  Oxycodone, and \nCyclobenzaprine,  but  also  more  invasive  procedures  such  as  lumbar  medial  branch \nblocks and lumbar radiofrequency ablation neurotomies for the back, and suprascapular \nand  axillary  nerve  blocks  for  her  shoulder.  The  pain  management  records  lack  any \nobjective findings of an injury to the back.  While, for instance, Claimant reported relief \nfrom the injections and ablations, this—again—is subjective and not objective in nature.  \nSee  Ark.  Code  Ann.  § 11-9-102(16)(A)(i)  (Repl.  2012)(“‘Objective  findings’”  are  those \nfindings which cannot come under the voluntary control of the patient”).  But Shields did \ninclude  objective  findings  of  Claimant’s  shoulder  in  the  form  of  crepitance.    This  can \nconstitute  an  objective  finding.   See  Greer  v.  Ozark  Opportunities,  2009  AWCC  124, \nClaim No. F704899 (Full Commission Opinion filed July 8, 2009); Goss v. Baker Engr., \n2002 AWCC 127, Claim No. E910877 (Full Commission Opinion filed June 19, 2002). \n On September 13, 2023, Claimant underwent another MRI of her right shoulder.  \nIn  this  instance,  the  radiological  findings,  by  Dr.  Ezekial  Shotts,  were  of  a “[t]iny”  low-\ngrade  partial  interstitial  tear  at  the  greater  tuberosity  footprint  of  the  infraspinatus \ntendon, and an anterior to posterosuperior labral tear.  She related on the witness stand \nthat she has undergone an MRI of her lumbar spine as well.  But such is not reflected in \nher medical records in evidence. \n Claimant  in  her  testimony  denied  having  any  back  or  shoulder  problems  before \nOctober  21,  2020.    In reference  to  her  credibility  as  a  witness,  the  following  exchange \ntook place on cross-examination: \n\nTAYLOR – H009300 \n \n20 \nQ. So  your  earlier  testimony  that  you  did  work  [at  the  home  health \nbusiness] is incorrect, is that right? \n \nA. I am confused.  I’m sorry, ‘cause I take a lot of meds.  I’m confused.  \nBut I know I tried to work there like three weeks. \n \nQ. Can I ask what meds you’re on right now? \n \nA. I take Percocets and muscle relaxer and— \n \nQ. When did you last take a Percocet? \n \nA. Last night. \n \nQ. Are they affecting your cognition now? \n \nA. Well, I don’t know— \n \nQ. Okay. \n \nA. —‘cause  I  take—I  take  quite  a  bit  of  meds,  and  I  also  take \ndepression meds, too. \n \nQ. Okay.    And  you  understand  that  you’re  under  oath  and  that  the \ncredibility of your testimony is an issue at this hearing? \n \nA. Yes. \n \nLater,  when  questioned  by  the  Commission  on  this  matter,  Claimant  stated  that  her \ntestimony is reliable, but that she gets “confused on the dates.” \n In analyzing the elements of compensability vis-à-vis Claimant’s alleged injuries, \nthe evidence is devoid of objective findings of a back injury.  See supra.  Therefore, that \nportion of her claim must fail at the outset. \n As for her alleged right shoulder injury.  I credit the MRI findings as read by Drs. \nBrown, Loi, and Shott—all of whom found that she sustained tears to the shoulder, and \n\nTAYLOR – H009300 \n \n21 \nwith the first two specifically finding that there was a SLAP tear.  I am unable, based on \nmy review of the evidence, to credit Dr. Pearce, who did not concur in this. \n As  to  whether this  shoulder  injury  arose  out  of  and  in  the  course  of  her \nemployment  at  Respondent  Hino,  and was  caused  by  a  specific  incident  that  is \nidentifiable  by  time  and  place  of occurrence,  the  evidence  shows  that  the  injury  was \nsustained by Claimant on October 21, 2020, while she was pulling on a part so that the \nbolts could be brought into line.  A causal relationship may be established between an \nemployment-related  incident  and  a  subsequent  physical  injury  based  on  the  evidence \nthat the injury manifested itself within a reasonable period of time following the incident, \nso  that  the  injury  is  logically  attributable  to  the incident,  where  there  is  no  other \nreasonable  explanation  for  the  injury. Hall  v.  Pittman  Construction Co.,  234  Ark.  104, \n357 S.W.2d 263 (1962).  That is certainly the case here.  Claimant has, consequently, \nproven  by  a  preponderance  of  the  evidence  that  she  suffered  a  compensable right \nshoulder injury by specific incident. \nB. Medical Treatment \n Introduction.   Claimant  has  alleged  that  she  is  entitled  to  reasonable  and \nnecessary medical treatment in connection with her alleged shoulder and back injuries. \n Standards.    Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012) states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment of  the \n\nTAYLOR – H009300 \n \n22 \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.  I find that Claimant has proven by a preponderance of the evidence \nthat she is entitled to reasonable and necessary medical treatment of her compensable \nright  shoulder injury.    Moreover,  I  have  reviewed  her  treatment  records  that  are  in \nevidence, and I find that she has proven by a preponderance of the evidence that all of \nthe  treatment  of  her  compensable  right  shoulder  injury  reflected  therein—including  her \npain   management   by   Dr.   Shields   and   the   additional   treatment   that   has   been \n\nTAYLOR – H009300 \n \n23 \nrecommended and/or performed in connection with her shoulder—was reasonable and \nnecessary. \n On  the  other  hand,  because  Claimant  has  not  established  that  she  sustained  a \ncompensable  back  injury,  she  has  not  met  her  burden  of  proving  her  entitlement  to \nreasonable and necessary treatment of it. \nC. Temporary Total Disability \n Introduction.    Claimant  has  also  alleged  that  she  is  entitled  to  temporary  total \ndisability  benefits  from  the  date  last  paid—May  12,  2022—to  a  date  yet  to  be \ndetermined.  Respondents disagree with this. \n Standards.  The compensable injury to Claimant’s right shoulder is unscheduled.  \nSee Ark. Code Ann. § 11-9-521 (Repl. 2012).  An employee who suffers a compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \nwithin the healing period in which he has suffered a total incapacity to earn wages.  Ark. \nState  Hwy.  &  Transp. Dept.  v.  Breshears,  272  Ark. 244,  613  S.W.2d  392  (1981).    The \nhealing  period  ends  when  the  underlying  condition  causing  the  disability has  become \nstable  and  nothing  further  in  the  way  of  treatment  will  improve  that  condition.   Mad \nButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant must \ndemonstrate that the disability lasted more than seven days.  Id. § 11-9-501(a)(1). \n Evidence/Discussion.  During the hearing, Claimant testified as follows: \nQ. Have  you  been  back  to  work  for  Hino  at  any  time  since  this \naccident? \n \nA. No, sir. \n \n\nTAYLOR – H009300 \n \n24 \nThis is at odds with her earlier testimony that she initially continued to work after getting \nhurt.    This  is  confirmed  by  Stipulation  No.  3  and  her  contentions,  which  show  that  her \ntemporary total disability benefits did not begin until November 6, 2020; and that she is \nnot seeking them for any period prior to their cessation as of May 13, 2022.  Claimant \nacknowledged  during  her  testimony  that  following  her  release  by  Pearce,  she  worked \nfor three weeks for a home health provider.  She was able to do this because the client \nshe  was  assigned  only  required  care  that  fell  within  her  previously-assigned  light-duty \nrestrictions.  However, she was unable to continue when her assignment changed—and \nthe duties required in order to care for the new client increased. \n Dr.  Pearce,  based  upon  the  functional  capacity  evaluation,  which  showed  that \nClaimant  gave  an  extremely  unreliable  and  inconsistent  effort,  found  that  Claimant \nreached  maximum  medical  improvement  as  of  the  date  of  his  report  addendum,  April \n18, 2022, and released her to full duty.  Claimant’s testimony was that she was unaware \nof this, and would have attempted to go back to a full-duty job had she known. \n Based  upon  my  review  of  the  totality  of  the  credible  evidence,  I  credit  Dr. \nPearce’s opinion on this matter and find that the evidence preponderates that Claimant \nreached  the  end  of  her  healing  period on  April  18,  2022.    To  the  extent  that  Claimant \ncontinued  to  present  with  pain  in  her  right  shoulder  since  then,  I  note  that persistent \npain,  by  itself,  is  not  sufficient  to  extend  the  healing  period.   See  Mad  Butcher,  supra.  \nConsequently, she has not proven her entitlement to additional temporary total disability \nbenefits for any period. \n\nTAYLOR – H009300 \n \n25 \nD. Controversion \n Introduction.    Claimant  has  asserted  that  she  is  entitled  to  a  controverted \nattorney’s fee in this matter. \n Standard.    Arkansas  Code  Annotated  Section  11-9-715  (Repl.  2012)  is  the \nauthority in this matter.  This provision reads in pertinent part: \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased  employee  .  .  . In  all  other  cases  whenever  the  commission \nfinds  that  a  claim  has  been  controverted,  in  whole  or  in  part,  the \ncommission shall direct that fees for legal services be paid to the attorney \nfor  the  claimant  as  follows:    One-half  (½)  by  the  employer  or  carrier  in \naddition  to  compensation  awarded;  and  one-half  (½)  by  the  injured \nemployee  or  dependents  of  a  deceased  employee  out  of  compensation \npayable to them. \n \n (ii) The fees shall be allowed only on the amount of compensation \nfor indemnity benefits controverted and awarded. \n \nId. § 11-9-715(a)(1)(B) & (a)(2)(B)(i)-(ii).  (Emphasis added)  One of the purposes of the \nattorney's fee statute is to put the economic burden of litigation on the party who makes \nlitigation necessary.  Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1998). \n Discussion.    As  Stipulation  No.  3  has  established,  Respondents  ultimately \ncontroverted    Claimant’s    alleged    right    shoulder    injury—herein    proven    to    be \ncompensable—and  by  extension,  the  indemnity  benefits  that  were  paid  pursuant \nthereto.  Thus, the evidence preponderates that her counsel, the Hon. Andy L. Caldwell, \nis entitled to the controverted fee as set out above on the indemnity benefits  that were \npaid in connection therewith. \n\nTAYLOR – H009300 \n \n26 \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance with  the \nFindings  of  Fact  and  Conclusions  of  Law  set  forth  above.    All  accrued  sums  shall  be \npaid in a lump sum without discount, and this award shall earn interest at the legal rate \nuntil  paid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First \nState Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  the  25  percent  (25%)  attorney’s  fee awarded \nherein,  one-half  of  which  is  to  be  paid  by  Claimant  and  one-half  to be  paid  by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":46726,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H009300 KIMBERLY TAYLOR, EMPLOYEE CLAIMANT HINO MTRS. MFG. USA, INC., EMPLOYER RESPONDENT SOMPO AMER. INS. CO., CARRIER RESPONDENT OPINION FILED JANUARY 23, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 27, 2023, in Marion, Critten...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["shoulder","back","lumbar","neck","cervical","hip"],"fetchedAt":"2026-05-19T22:58:38.320Z"},{"id":"alj-H303403-2024-01-23","awccNumber":"H303403","decisionDate":"2024-01-23","decisionYear":2024,"opinionType":"alj","claimantName":"Melony Workman","employerName":"Tec, The Employment Co., Inc","title":"WORKMAN VS. TEC, THE EMPLOYMENT CO., INC. AWCC# H303403 JANUARY 23, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WORKMAN_MELONY_H303403_20240123.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WORKMAN_MELONY_H303403_20240123.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H303403 \n \nMELONY WORKMAN, Employee CLAIMANT \n \nTEC, THE EMPLOYMENT CO., INC., Employer RESPONDENT NO. 1 \n \nWHITEROCK CAPITAL ACQ. FUND \nd/b/a FABTECH, Employer RESPONDENT NO. 2 \n \nMIDWEST INS. CO., Insurance Carrier/TPA RESPONDENT NO. 1 \n \nFEDERAL INS. CO., Insurance Carrier/TPA RESPONDENT NO. 2 \n \n \n \n OPINION FILED JANUARY 23, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents  No.  1  represented  by  JAMES  A.  ARNOLD II,  Attorney  at  Law,  Fort  Smith, \nArkansas. \n \nRespondents No. 2 represented by DAVID C. JONES, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  October  26,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on  August  21,  2023,  and  a  Pre-hearing \nOrder  was  filed  on  August  22,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n\nWorkman – H303403 \n \n-2- \n 2.  The  relationship  of  employee-employer-carrier  existed  between  Respondent  No. 1 \nfrom  September  22,  2022,  until  December  18,  2022,  and  between  Respondent  No.  2  from \nDecember 19, 2022, until April 23, 2023. \n 3. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $427.00  for  temporary  total  disability  benefits  and  $321.00  for  permanent  partial \ndisability benefits for Respondent No. 1, and $380.00 for temporary total disability benefits and \n$285.00 for permanent partial disability benefits for Respondent No. 2. \n 4. The respondents have controverted the claim in its entirety. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to her bilateral hands and wrists in \nthe form of Carpal Tunnel Syndrome beginning on or about October 7, 2022, through April 27, \n2023;  and  whether  Claimant  was  an  employee  of  Respondents  No.  1,  Respondents  No.  2,  or \nboth, from October 7, 2022, through April 27, 2023. \n 2. Whether Claimant is entitled to medical treatment for compensable bilateral hand and \nwrist injury. \n 3. Whether Claimant is entitled to temporary total disability benefits from April 28, 2023, \nto a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n 5. Respondents raise lack of notice  as  a defense  in that the June 9, 2023, AR-C was the \nfirst notice of any alleged work-related injury. \n The claimant's contentions are as follows: \n“The   claimant   contends   that   as   a   result   of   her   day   to   day \nemployment  activities,  she  has  sustained  compensable  injuries  to \nher wrist and hands, which is in the form of bilateral carpal tunnel \n\nWorkman – H303403 \n \n-3- \nsyndrome.   She   contends   that   these   injuries   have   reasonably \nrequired  and  will  continue  to  require  medical  services  (including \nsurgical  intervention).  She  also  contends  that  these  injuries  have \ncaused her to be temporarily totally disabled from April 28, 2023, \nthrough a date yet to be determined. Finally, she contends that her \nattorney  is  entitled  to  the  statutory  fee  on  all  appropriate  benefits \nsubsequently awarded.” \n \n Respondents No. 1’s contentions are as follows: \n“TEC disputes at this time that it was the employer of the Claimant \nat  the  time  of  the  of  the  alleged  injury  and  therefore  states  that  it \nhas  no  liability  for  any  compensation  benefits  that  may  be  due  or \nbecome due.” \n \n Respondents No. 2’s contentions are as follows: \n“1.  Respondents  No.  2  contend  that  the  Claimant  was  not  an \nemployee of Respondent No. 2 on October 7, 2022, the date of the \nalleged gradual-onset injury. \n \n2. Respondents No. 2 contend that the Claimant did not technically \nbecome  an  employee  of  Respondent  No.  2  until  December  2022, \nwith  the  specific  date  of  her  hiring  to  be  supplemented  at  a  later \ndate. \n \n3.  Respondents  No.  2  contend  that  the  Claimant  did  not  sustain \ncompensable  carpal  tunnel  syndrome  during  the  course  and  in  the \nscope  of  her  employment  with  Respondent  No.  2.  In  that  regard, \nRespondents   No.   2   contends   that   the “major   cause”   of   the \nClaimant’s  carpal  tunnel  syndrome  was  not  a  result  of  her  work \nactivities for Respondent No. 2. \n \n4. In the alternative, Respondents No. 2 contend that if the claim is \nheld  compensable,  the  Claimant  would  not  be  entitled  to  any \nbenefits until the date of notice, with the date of notice being June \n9, 2023, pursuant to the Form AR-C filing. \n \n5.  Respondents  No.  2  contend  that  they  would  be  entitled  to  an \noffset   for   any   group   health   carrier,   disability   carrier,   and/or \nunemployment  benefits  paid  to  or  on  behalf  of  the  Claimant, \nshould  the  Claimant  have  applied  for   and  received  any  said \nbenefits. \n \n\nWorkman – H303403 \n \n-4- \n6.  Respondents  No.  2  would  reserve  the  right  to  amend  and \nsupplement   their   contentions   after   the   discovery   has   been \ncompleted.” \n \n The  claimant  in  this  matter  is  a  44-year-old  female  who  alleges  to  have  sustained \ncompensable  bilateral  carpal  tunnel  syndrome  in  her  hands  and  wrists  beginning  on  or  about \nOctober  7,  2022,  through  April  27,  2023.  The  claimant  worked  in  a  factory  setting  that \nmanufactured  metal  parts.  This  matter  involves  two  respondents:  Respondent  No.  1,  which  is  a \ntemporary employment agency, and Respondent No. 2, which is in the business of manufacturing \nmetal parts. \n The claimant worked at Respondent No. 2’s manufacturing facility beginning September \n22,  2022,  but  was  an  employee  of  Respondent  No.  1,  a  temporary  employment  agency.  The \nclaimant’s employment with Respondent No. 1 ended on December 18, 2022. On December 19, \n2022,  the  claimant  remained  in  the  same  job  at  Respondent  No.  2’s  facility,  but  also  became \nemployed  by  Respondent  No.  2  at  that  time.  The  claimant  continued  in  the  employment  of \nRespondent No. 2 until April 23, 2023. \n The claimant, while employed by both Respondent No. 1 and Respondent No. 2, had the \nsame work activities. The claimant described those activities on direct examination as follows: \nQ Okay. And would you describe for the Judge what your job \nthere involved. \n \nA Each day we would come in. They have a metal laser cutter \nand  we  would  cut  out  pieces  of  metal,  various  sizes  and  weights \nand  material,  that  we  would  break  out  other  pieces,  large  sheets. \nAnd  there  we  would –  usually  either  we  would  block  them  like  a \ntwo- to five-pound piece of metal. We would block it to knock the \nburs, the metal burs off the fresh cutout metal. \n Then  after  that  we  would  continue  the  process  of  going  to \nbelt sanding each and every piece, both sides. Then we would use a \nDA palm sander and a grinder and this was hundreds to a thousand \n\nWorkman – H303403 \n \n-5- \nparts  sometimes  a  night,  every  day  for  ten  hours.  We  would  belt \nsand and DA every part. \n \nQ And  when  you  are  knocking  the  burs  off,  what  did  that \ninvolve? \n \nA They have a stainless steel block and like I said, it weighed \nbetween two to, you know, three pounds or something like that and \nwe  would  take  it  and  rake  it  across  the  metal  part,  the  steel  part, \nand bust off the little pieces of slag that was still on the metal part. \nAnd you just had to bust it off there with the weight of the block in \nyour  hand  and  then  stack  them  up  and  then  continue  on  with  this \nprocess. \n \nQ Was the metal in a vise or was something holding it? \n \nA No. \n \nQ Or did you hold it by hand? \n \nA We would hold it by hand with one hand and with the other \nwe would block it. \n \nQ Okay.  Were  there  a  number  of  different  pieces  and  shapes \nand things? \n \nA Absolutely, yes. They varied from an inch, by an inch size, \nand in that case there would be buckets with thousands of parts in \nthere  or  at  least  several,  several  hundred  in  a  big  tote.  And  we \nwould  have  to  do  each  and  every  piece  the  same  way.  We  would \nbelt sand it and then grind it and then sand every part. \n \nQ Describe,  if  you  would,  more  in  detail  what  this  involved. \nYou  would  take  the  part  out  a  bucket  or  off  a  pallet  or  a  flat  or \nwhatever? \n \nA Exactly. And then like I said, we would block it if that was \nthe type of metal. If it was aluminum, we didn’t have  to  do  that. \nWe would just belt sand every side of the part and then we would \nstack it back up. \n And  then  after  that,  we  would  either  grind  it  if  it  needed \ngrinding  or –  and  every  part  when  it  was  aluminum,  both  sides \nalways  got  DA  sanded  with  a  palm  sander,  a  vibrating  little  palm \nsander.  And  every  part  if  it  was  aluminum  always  got  sanded  on \nboth sides. \n\nWorkman – H303403 \n \n-6- \n \nQ Do  you  have  any  idea  how  many  parts  you  would  run  a \nday? \n \nA It  varied  from  day-to-day,  but  there  were –  one  part  in \nparticular, I couldn’t know for sure,  we  did  between  1,000  and \n1,200 a night of this one particular steel-like gear-type thing. \n Another  process  that  we  did  to  that  exact  same  part,  we \nwould stack up after, you know, we would do the belt sanding and \nthe grinding and the DA into it, and then there were little holes in it \nand I would have to take a drill tap and I would put the threads in \nthe  holes  and  that  would  consist  of  me  holding  the  button  down, \ndrilling  it  through  and  then  pushing  another  button  to  hold  down \nand  raising  it  back  up  out  of  there.  And  I  had  to  do  that  for  like \nnine holes on each piece, the same amount, like 1,200 pieces, nine \ntimes. \n \nQ And  how  many  hours  would  you  do  this  type  of  work  a \nshift? \n \nA Ten. \n \n On direct examination the claimant was asked about when her symptoms began, and her \ninitial medical treatment as follows: \nQ Now, when did you start having problems with your hands? \n \nA I  mean  it  was –  I  remember  mentioning  it  to  my  doctor \nabout  how  they  were  kind  of  going  numb  pretty  early  in  October \nwhen  I  went  to  the  doctor  for  something  unrelated  to  this.  And  I \nmentioned to her, you know, that I was having some tingling in my \nhands. So early in October, I guess. Middle of October. \n \nQ When these problems started, was it just tingling? \n \nA Yeah, it was tingling and a little bit of numbness. \n \nQ At that time did you know what was causing this problem? \n \nA No, sir. I wasn’t real sure. \n \nQ Did you see a doctor? \n \n\nWorkman – H303403 \n \n-7- \nA I mean I was going to a primary already and I mentioned to \nher what was going on. And the next time I went back later on that \nmonth, I told her it had progressed because it had. It had gotten to \nwhere  it  was  shooting  pains  up  my  arm,  up  my  forearm.  And  she \nprescribed  me  some  prednisone  steroid  of  some  sort  and  a  couple \nother   like   muscle   relaxants –   not   relaxants.   They   were – \nmeloxicam is what it was, I remember, and it was supposed to help \nwith that sort of pain, but none of them did anything for my hands. \n \nQ Before you saw your PCP, did you see a chiropractor? \n \nA Yeah.  I  did  that  out  of  my  own  pocket  just  to – I wasn’t \nsure.  I  was  trying  to  eliminate,  you  know,  things  that  might \npossibly be what was wrong. I wasn’t sure. I thought it might be \nlike  a  pinched  nerve  in  my  back  or  something,  you  know.  So  I \nwent to the chiropractor and told her what my symptoms were and \ncould you help, you know, because the pain had gotten so bad that, \nI mean, I would cry before I would go to work sometimes. I would \ncry when I woke up. \n \n The claimant was seen at UAMS Family Medical  in Fort Smith by Dr. Cassidy Goff on \nOctober 7, 2022, for a variety of complaints including her bilateral hand symptoms. Following is \na portion of the medical record from that visit: \nThe patient is here for an ER follow up. \n \nShe  was  seen  in  the  ED  for  hypertension  in  July.  Her  BP  was \n178/97    in    the    Ed    when    she    went.    She    was    put    on \nhydrochlorothiazide  12.5mg  for  30  days.  She  did  take  her  BP  on \nthat  medication  but  reports  that  it  was  still  in  the  140s  and  150s. \nShe ran out of the meds over a month ago and was unable to get a \nrefill  since  she  did  not  have  a  PCP.  Her  BP  is  124/96  today.  She \nstates that this is the lowest her systolic has been since she started \nchecking it. She reports that it usually runs in the 140s and 150s. \n \nShe also reports numbness and loss of grip strength in both of her \nhands that radiate up her arms. She reports that this happened once \nabout  19  years  ago  but  resolved  on  its  own  quickly.  This  time  it \nhas  not  gone  away  and  continues  to  get  worse.  The  distribution \nappears to be in the C7 area. \n \n\nWorkman – H303403 \n \n-8- \n The claimant continued to be employed by Respondent No. 1 and worked in Respondent \nNo. 2’s facility as she was not restricted in any activities. As seen in Dr. Goff’s October 7, 2022, \nrecord  of  the  claimant’s  visit,  Dr.  Goff  believed  the  claimant’s  symptoms  in  her  hands  to  be \nrelated to her cervical spine and continued to treat those symptoms as such.  \n On  October  25,  2022,  the  claimant  was  again  seen  by  Dr.  Goff,  her  primary  care \nphysician at UAMS Family Medical. Following is a portion of that medical record: \nThe patient is here for a follow up. \n \nShe reports that she is still having the numbness and tingling of her \narms  and  hands.  It  is  now  both  arms  and  it  has  continually  gotten \nworse.  She  did  not  go  to  the  physical  therapy  that  I  ordered \nbecause  she  has  been  too  busy  to  call  them  back.  She  reports  that \nshe  is  unable  to  even  use  a  lighter  at  this  time.  She  feels  that  her \nhands are drawing up. \n \nShe  was  also  started  on  lisinopril  at  her  last  appointment.  She  is \ncurrently  taking  lisinopril  5mg  daily.  She  brought  in  bp  readings \nfrom each day that are averaging 156/95. She is open to increasing \nher medication dosage. \n \n On  December  18,  2022,  the  claimant’s  employment  with  Respondent  No.  1  ended  and \nher  employment  with  Respondent  No.  2  began  on  December  19,  2022.  During  this  time  the \nclaimant continued with the same work activities that she had previously been performing while \nan employee of Respondent No. 1. \n The  claimant’s  complaints  of  difficulties  in  her  hands  continued  and  she  again  saw  Dr. \nGoff on January 6, 2023. Following is a portion of that medical record: \nThe  patient  is  here  for  a  follow  up  on  her  hypertension  and  C7 \nradiculopathy. \n \nShe   states   that   her   BP   has   been   better   since   increasing   her \nlisinopril  to  10mg.  It  is  130/84  today  which  is  down  significantly \nsince  last  visit.  She  denies  any  issues  with  her  BP  or  side  effects \n\nWorkman – H303403 \n \n-9- \nfrom the increase in medication. We will continue at this dose for \nnow. \n \nShe  states  that  her  C7  radiculopathy  has  not  improved.  She  states \nthat when she took the prednisone that she had some pain relief but \nit only lasted as long as she was on the medication. She reports no \nrelief  with  the  Meloxicam.  She  did  go  to  physical  therapy  but \nreports that it only made her hurt worse. However, she has noticed \nsince  physical  therapy  that  the  pain  is  no  longer  at  her  neck  and \nupper  arms,  but  is  only  located  in  her  forearms  and  hands.  She \ndescribes it  as burning and tingling along with numbness and loss \nof  grip  strength.  She  reports  a  tightness  in  the  muscles  of  her \nforearms as well. \n \n On January 18, 2023, a medical record introduced into evidence records a message left by \nthe claimant to Dr. Goff. That message states: \nDr. Goff, \nI don’t think the gabapentin is helping at all. Or I’m just not taking \nenough. Cause my hands are hurting extremely bad. Like the meds \nare not helping any. Can we please do something different soon? \n \n On January 21, 2023, the claimant sends another message to Dr. Goff, which states: \nDr. Goff, \nSomething  has  to  change  with  what  we  are  doing  for  my  hands. \nThey  are  getting  worse.  Starting  to  swell  some.  The  pain  and \nnumbness is pretty much constant. My muscles or tendons in both \nhands feel like they are cramping up. Or drawing up. When I try to \npick any sort of weight up, it feels like a popping of something in \nmy  hands.  It  hurts  extremely  bad.  Please,  can  we  do  something \nsoon.  I  don’t  want  this  to  get  even  worse.  Or  wind  up  having \npermanent results. I’m willing to try anything. The meds I’m on \nare doing nothing at all for me. Nothing. \n \nDr. Goff responds on January 23, 2023, as follows: \nI  have  ordered  a  neck  XR  in  clinic  for  you  to  come  by  and  get \nwhenever you can. I also have ordered a nerve conduction test. The \nXR is necessary in order for us to be able to get an MRI. We will \nstart with the neck since it is b/l pain and we will go from there. As \nsoon as I have XR results I can order the MRI. \n \n\nWorkman – H303403 \n \n-10- \n On  February  19,  2023,  the  claimant  underwent  a  nerve  conduction  study  performed  by \nDr. Miles Johnson at Northwest Arkansas EMG Clinic. Following is a portion of Dr. Johnson’s \nreport from that diagnostic testing: \nCHIEF COMPLAINT: Pain, numbness and tingling in the hands. \n \nHISTORY OF PRESENT ILLNESS: Patient is a 43-year-old right-\nhanded  female  with  a  4-month  history  of  bilateral  hand  pain, \nnumbness,  tingling,  burning,  and  weakness.  Symptoms  are  worse \nwith  gripping  or  when  she  is  sleeping.  Some  improvement  with \nhanging  the  extremities  in  a  dependent  position  or  shaking  them. \nDenies any radiating neck pain. Patient has been seen by Dr. Gills \nand  is  referred  for  electrodiagnostic  testing  of  the  bilateral  upper \nextremities. \n \n*** \nASSESSMENT: Severe bilateral carpal tunnel syndrome. There is \nno   electrodiagnostic   evidence   of   radiculopathy,   plexopathy, \ngeneralized   peripheral   neuropathy   or   other   peripheral   nerve \nentrapment syndromes. \n \nPLAN:  Patient  has  been  counseled  regarding  the  above  findings \nand  has  been  instructed  to  schedule  a  follow  up  appointment  in \nyour office for further evaluation in order to utilize these results on \nthe  treatment/management  of  their  condition.  Would  recommend \nevaluation of  bilateral carpal tunnel releases. \n \n On February 20, 2023, the claimant underwent a CT of the cervical spine without contrast \nat  Baptist  Health  in  Fort  Smith.  Dr.  Ismail  Ihmeidan  issued  a  diagnostic  report  from  the \nclaimant’s cervical CT. The Impression section of that report states: \nImpression: \nRadiographic interpretation and impression: \nDextroscoliosis  of  the  cervical  spine  with  extensive  degenerative \ndisc and facet joint disease causing moderate foraminal narrowing \nmore pronounced on the left at C5-C6 level and on the right at C3-\nC4  level.  No  acute  compression  fractures  are  identified.  Moderate \ncanal stenosis also seen at C5-C6 level. \n \n\nWorkman – H303403 \n \n-11- \n On  February  28,  2023,  Dr.  Goff  leaves  a  message  for  the  claimant  regarding  the \nclaimant’s recent testing. Dr. Goff’s notes of that message state: \nI called and left a message for the patient to go over her MRI and \nnerve  conduction  study  results.  Both  studies  were  abnormal.  The \nnerve  conduction  study  showed  severe  bilateral  carpal  tunnel  and \nthey  recommended  a  carpal  tunnel  release.  Her  MRI  showed \nsevere cervical degeneration and moderate foraminal stenosis. We \nhave already referred her to Neurosurgery for this so she will need \nto set up an appointment. \n \n On March 2, 2023, the claimant returns Dr. Goff’s call and Dr. Goff records notes about \ntheir telephone interaction as follows: \nThe patient called back and I went over the results with her. I told \nher the next course of action was a b/l carpal tunnel release which \ncan be done by neuro or ortho whichever is quickest.  I will check \nwith  referrals  for  this  to  see  who  we  can  get  her  in  with  quicker. \nShe has already been referred to neuro surgery and is waiting on an \nappointment. She will also need to see neuro for her cervical spine. \n \nDr. Goff referred the claimant to Baptist Orthopedics at that time with the following scheduling \ninstructions  found  at  Claimant’s  Exhibit  1,  page  34, “Please  schedule  with  ortho  or  neuro, \nwhoever would be able to get  her in quicker  for  a b/l carpal tunnel release that is a very severe \ncase.” \n On  May  23,  2023,  the  claimant  was  seen  by  Dr.  Kaleb  Smithson,  who  is  an  orthopedic \nsurgeon  that  specializes  in  hands  and  upper  extremities.  Following  is  a  portion  of  that  medical \nreport: \nChief Complaint: Bilateral hand numbness. \n \nHistory  of  Present  Illness:  Melony  A.  Workman  is  a  43  y.o.  right \nhand   dominant   female   patient.   Presents   today   for   severely \nworsening  numbness  and  tingling  involving  her  thumb  index  and \nlong  finger  of  both  hands  on  right  worse  than  left.  This  initially \nbegan  in  November  2023.  She  had  a  physically  demanding  job \nwith vibratory tools which significantly exacerbated her symptoms. \n\nWorkman – H303403 \n \n-12- \nRecently had a NCS/EMG completed and is here today with results \nto discuss. No history of diabetes. Pack per day smoker. \n \n*** \nImpression/Plan: \n1. Bilateral wrist pain (Primary) \n- XR Wrist 3 Vw Bilat \n \n2. Severe carpal tunnel syndrome, right. \n \n3. Severe carpal tunnel syndrome, left \n \nSevere  bilateral  CTS,  right  more  symptomatic.  Discussed  carpal \ntunnel decompression in detail including perioperative \nexpectations   and   postoperative   recovery.   All   questions   were \nanswered and she elected to proceed. \n \nI  have  discussed  with  the  patient  the  relevant  risks,  benefits  and \nalternatives  to  proposed  procedure.  The  risks  include  but  are  not \nlimited   to   anesthesia   complications,   pain,   bleeding,   infection, \ndamaged  structures,  and  the  potential  need  for  additional  surgical \nintervention.   The   patient   expresses   verbal   understanding   and \ndesires to proceed with surgery. \n \n The  claimant  continued  to  work  without  restrictions  until  April  23,  2023, when  she  was \nfired due to her attendance or “no call, no show.” The claimant testified on cross examination by \nRespondent No. 2’s attorney about knowledge of how to report a workplace injury and her lack \nof  reporting  her  bilateral  hand  and  wrist  difficulties  while  employed  by  both  Respondent  No.  1 \nand Respondent No. 2 as follows: \nQ And  you  are  not  disputing  and  I  think  you  told  us  in  your \ndeposition, and you were very upfront about it, that you new how \nand when to report work-related injuries? \n \nA Yes, sir. \n \nQ All right. In fact, you didn’t ever go to –  while  you  may \nhave complained to Bee – and we are going to call him Bee today. \n \nA Yes, sir. \n \n\nWorkman – H303403 \n \n-13- \nQ You may have complained, but you never said, hey, I have \na work-related injury and I want to file a claim? \n \nA No, sir. \n \nQ Okay. And you didn’t file a claim when you worked for \neither TEC or when you worked for Fab-Tech? \n \nA No, sir. \n \nQ Okay. It was after – \n \nA After I got the nerve conduction. \n \nQ -- you were terminated. Essentially, you quit coming in and \nno call, no show as they say? Is that fair to say? \n \nA Yes, sir. \n \nQ And  I  think  you  even  told me in the deposition you didn’t \nknow – you told Bee you didn’t know what was going on with \nyour arms and hands. Is that fair to say? \n \nA Yeah. I couldn’t pin it on one thing in particular. I didn’t \nknow. \n \nQ Right.  And  when  you  were  hired  on  with  actually  Fab-\nTech,  White  Rock,  you  went  through  their  orientation  process  as \nwell; correct? \n \nA. Yes. \n \nRespondent  No.  2  called  Siensavanh  Phothisane,  who  supervised  the  claimant  while  she  was \nemployed by both Respondent No. 1 and Respondent No. 2. Mr. Phothisane is commonly known \nas “Bee” as a witness. Mr. Phothisane confirmed the claimant’s testimony that she did not report \na workplace injury. \n It  is  the  claimant’s  burden  to  prove  that  she  sustained  a  compensable  injury  to  her \nbilateral  hands  and  wrists  in  the  form  of  carpal  tunnel  syndrome.  The  claimant  alleges  a  wide \ntime period from October 7, 2022, through April 27, 2023, for her alleged bilateral carpal tunnel \n\nWorkman – H303403 \n \n-14- \ninjury  to  have  culminated,  that  alleged  period  spanning  the  employment  with  both  Respondent \nNo. 1 and Respondent No. 2. The claimant is able to show objective medical findings of bilateral \ncarpal tunnel syndrome in the results of her February 9, 2023, nerve conduction study performed \nby  Dr.  Johnson.  In fact,  Dr.  Johnson  described “severe  bilateral  carpal  tunnel  syndrome”  in  his \nassessment  of  the  claimant.  The  claimant  is  able  to  prove  the  existence  of  objective  medical \nevidence of bilateral carpal tunnel syndrome.  \n The  claimant  first  reported  difficulties  with  her  hands  to  Dr.  Goff,  her  primary  care \nphysician,  on  October  7,  2022.  The  claimant  reported “numbness  and  loss  of  grip  strength  in \nboth  of  her  hands  that  radiated  up  her  arms.”  The  claimant  also  reported  at  that  visit  a  similar \nissue  with  her  hands  19  years  prior  that  quickly  resolved  on  its  own.  The  claimant’s  bilateral \nsymptoms  continued  to  worsen.  At  her  October  25,  2022,  visit  with  Dr.  Goff,  she  reported  the \nclaimant was “unable to even use a lighter at this time” and “she feels her hands are drawing up.” \nDr.  Goff  appeared  to  treat  her  bilateral  hand  complaints  as  a  result  of  a  cervical  spine  issue. \nHowever, in the claimant’s subsequent visits her bilateral hand complaints continue to worsen. \n The claimant’s work was very hand intensive for both Respondent No. 1 and Respondent \nNo. 2 in that it was the same work activities. The claimant’s testimony was collaborated by Mr. \nPhothisane in his testimony. Given the nature of the claimant’s work activities, medical records \nin  evidence,  and  her  objective  medical  findings,  I  find  the  claimant  sustained  compensable \nbilateral  carpal  tunnel  syndrome.  I  find  that  the  claimant’s  bilateral  carpal  tunnel  syndrome \nculminated by at least October 25, 2022. During that period of time the claimant was employed \nby  Respondent  No.  1.  While  the  claimant’s  condition  continued  during  the  period  of time  she \nwas employed by Respondent No. 2, the culmination of that injury had already occurred as she \nwas  not  an  employee  of  Respondent  No.  2  until  December  19,  2022.  Respondent  No.  2  has  no \n\nWorkman – H303403 \n \n-15- \nliability  in  this  matter  as  the  claimant  is  unable  to  prove  she  sustained  bilateral  carpal  tunnel \nsyndrome  while  employed  by  Respondent  No.  2  as  she  had  already  sustained  bilateral  carpal \nsyndrome while employed by Respondent No. 1 in October 2022. \n The  claimant  has  asked  the  Commission  to  determine  whether  she  is  entitled  to \nreasonable   and   necessary   medical   treatment   for   her   compensable   bilateral   carpal   tunnel \nsyndrome.  The  claimant  is  entitled  to  reasonable  and  necessary  medical  treatment  including \nsurgical  intervention  recommended  by  Dr.  Smithson  at  Baptist  Health  Orthopedics  which  had \nnot performed at the time of the hearing in this matter. \n The  claimant  has  asked  the Commission  to  determine  whether  she  is  entitled  to \ntemporary total disability benefits from April 28, 2023, to a date yet to be determined. I find no \nevidence  in  the  medical  record  of  the  claimant  being  taken  off  work  or  given  restriction  to  her \nphysical activities  by  a  medical  provider.  The  claimant’s  employment  ended  with  Respondent \nNo.  1  on  December  18,  2022,  and  she  began  to  work  for  Respondent  No.  2  on  December  19, \n2022.  Her  employment  with  Respondent  No.  2  ended  on  April  23,  2023,  when  she  was \nterminated  for  being  absent  from  work  without  notifying  Respondent  No.  2.  The  claimant \ntestified on direct examination as follows: \nQ Did you quit Fab-Tech or stop working at Fab-Tech? \n \nA Yes.  I  just  eventually  stopped  going.  I  mean  I  felt  like  it \nwas going to ruin my hands permanently.  \n \nThe claimant may certainly have stopped working because she believed it would “ruin my hands \npermanently”,  but  there  is  no  evidence  of  any  medical  provider  giving  such  an  opinion  or \ninstructions  to  stop  work.  The  claimant  has  failed  to  prove  her  entitlement  to  temporary  total \ndisability benefits. \n\nWorkman – H303403 \n \n-16- \n Both  Respondent  No.  1  and  Respondent  No.  2  have  raised  the  lack  of  notice  defense  in \nthat they allege a June 9, 2023, AR-C was the first notice they received of the claimant alleging a \nwork-related injury. The defense raised by Respondent No. 2 is moot as I have found no liability \nwith  Respondent  No.  2  in  this  matter.  However,  the  claimant’s  own  testimony  confirms  she \nknew  how  to  report  a  work-related  injury  and,  even  so,  never  reported  a  work-related  injury \nrelating to her hands to either respondent while in their employ. It does, from the record, appear \nthat Respondent No. 1 would have first received notice from an AR-C filed on July 5, 2023. That \nAR-C  has  been  blue-backed  and  made  part  of  the  record  herein.  As  such,  the  claimant  is  not \nentitled to any benefit under the Workers’ Compensation Act prior to July 5, 2023. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  21,  2023,  and  contained  in  a  Pre-hearing  Order  filed  August  22,  2023,  are  hereby \naccepted as fact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  sustained  a \ncompensable injury to her bilateral hands and wrists in the form  of carpal tunnel syndrome that \nculminated on October 25, 2022, while she was an employee of Respondent No. 1. \n 3. The claimant has failed to prove by a preponderance of the evidence that she sustained \na  compensable  injury  to  her  bilateral  hands  and  wrists  in  the  form  of  carpal  tunnel  syndrome \n\nWorkman – H303403 \n \n-17- \nbeginning  on  or  about  October  7,  2022,  through  April  27,  2023,  while  she  was  an  employee  of \nRespondent No. 2. \n 4.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she is  entitled  to \nreasonable   and   necessary   medical   treatment   for   her   compensable   bilateral   carpal   tunnel \nsyndrome. \n 5. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits. \n 6. Respondent No. 1 is able to prove their lack of notice defense in that the claimant did \nnot  provide  notice  to  Respondent  No.  1  until  an AR-C filed  on  July  5,  2023.  As  such,  the \nclaimant is not entitled to any benefits under the Workers’ Compensation Act until after July 5, \n2023. \n 7. Respondent No. 2’s lack of notice of defense is moot. \n 8. The claimant’s attorney has  failed to prove his entitlement to an attorney’s fee in this \nmatter as no indemnity benefits have been awarded. \n ORDER \nRespondent No. 1 shall pay for reasonable and necessary medical treatment regarding the \nclaimant’s compensable bilateral carpal tunnel syndrome beginning after July 5, 2023, in that the \nclaimant  is  barred  from  receiving  benefits  prior  to  July  5,  2023,  due  to  her  lack  of  notice  to \nRespondent No. 1 of her allegation of a compensable injury. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \n\nWorkman – H303403 \n \n-18- \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":34020,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H303403 MELONY WORKMAN, Employee CLAIMANT TEC, THE EMPLOYMENT CO., INC., Employer RESPONDENT NO. 1 WHITEROCK CAPITAL ACQ. FUND d/b/a FABTECH, Employer RESPONDENT NO. 2 MIDWEST INS. CO., Insurance Carrier/TPA RESPONDENT NO. 1 FEDERAL INS. CO., Insurance Carrie...","outcome":"granted","outcomeKeywords":["granted:6","denied:4"],"injuryKeywords":["carpal tunnel","wrist","back","cervical","neck"],"fetchedAt":"2026-05-19T22:58:40.392Z"},{"id":"alj-H108821-2024-01-19","awccNumber":"H108821","decisionDate":"2024-01-19","decisionYear":2024,"opinionType":"alj","claimantName":"Wanda Muldrow","employerName":"Dep’t Of Workforce Services","title":"MULDROW VS. DEP’T OF WORKFORCE SERVICES AWCC# H108821 JANUARY 19, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MULDROW_WANDA_H108821_20240119.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MULDROW_WANDA_H108821_20240119.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H108821 \n \n \n \nWANDA S. MULDROW,   \nEMPLOYEE                                                  CLAIMANT \n \nDEP’T OF WORKFORCE SERVICES,   \nEMPLOYER                                                    RESPONDENT \n \nSTATE OF ARKANSAS/PUBLIC EMPLOYEE CLAIMS                                \nDIVISION, \nINSURANCE CARRIER/TPA                                    RESPONDENT     \n     \n                           \nOPINION FILED JANUARY 19, 2024 \n \nHearing  conducted  before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative Law Judge (ALJ) Mike Pickens, on October 23, 2023, in Texarkana, Miller County, \nArkansas.   \n \nThe claimant was  represented by the Honorable  Gregory R. Giles, Moore, Giles & Matteson, LLP, \nTexarkana, Miller County, Arkansas.   \n \nThe respondents were represented by the Honorable Charles H. McLemore, State of Arkansas, Public \nEmployee Claims Division (PECD), Little Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \nIn the prehearing order filed September 20, 2023, the parties agreed to the following \nstipulations, which they clarified and affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The   employer/employee/carrier-TPA   relationship   existed   at   all   relevant   times \nincluding October 4, 2021, when the claimant sustained a compensable injury to her \nleft index finger/hand. The respondents paid medical and indemnity benefits.   \n \n3. The claimant’s average weekly wage (AWW) was  $796.21,  which  is  sufficient  to \nentitle  her  to  weekly  compensation  rates  of  $531.00  for  temporary  total  disability \n(TTD), and $398.00 for permanent partial disability (PPD) benefits.   \n\nWanda S. Muldrow, AWCC No. H108821 \n \n2 \n \n \n4. The claimant requested, and the commission granted, her one (1)-time-only request for \na change of physician (COP) to Dr. D’Orsay Bryant by order dated November 17, 2021. \n \n5. The  respondents  accepted  and  paid  [or  are  in  the  process  of  paying]  Dr.  Jeanine \nAndersson’s 13% to the left hand [63% to the left index finger] permanent anatomical \nimpairment rating. \n \n6. The  respondents  have  controverted  only the  claimant’s subject  request  for  TTD \nbenefits. \n  \n7. The  parties  specifically  reserve  any  and  all  other  issues  for  future  litigation  and/or \ndetermination. \n \n(Commission  Exhibit  1  at  1-2; Reporter’s Transcript at  4-5; Respondents’ Ex. 3 at 9)  (Bracketed \nmaterial added). Pursuant to the parties’ mutual agreement the sole issue litigated at the hearing was: \n1. Whether  the  claimant is  entitled  to  additional  TTD  benefits  from  March  8,  2022, \nthrough the date Dr. Andersson determined she reached maximum medical impairment \n(MMI), which is August 14, 2023. \n \n2. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n3. The  parties  specifically  reserve  any  and  all  other  issues  for  future  litigation  and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. at 4-5). \n \n The claimant contends she is entitled to TTD benefits from on or about March 8, 2023, through \nthe date Dr. Andersson determined she reached MMI, which is August 14, 2023. She further contends \nher  attorney  is  entitled  to  an  attorney’s  fee  based  on  any  and  all  additional  TTD  benefits  the \nCommission  may  award  her.  The  claimant  specifically  reserves  the  right  to  amend  her  prehearing \nquestionnaire response upon the completion of appropriate and necessary investigation and discovery. \nIn addition, she specifically reserves any and all other issues for future determination and/or litigation. \n\nWanda S. Muldrow, AWCC No. H108821 \n \n3 \n \n(Comms’n Ex. 1 at 1-2; T. 4-5). \nThe  respondents  contend they accepted the claimant’s injury and as compensable and have \npaid all appropriate medical and indemnity benefits to date. They contend the claimant cannot meet \nher burden of proof pursuant to the Act in demonstrating she is entitled to additional TTD benefits \nsince  she  voluntarily  retired  and  is  not  entitled  to  TTD  benefits  after  the  date  she  retired.  The \nrespondents reserve the right to file an amended response to the prehearing questionnaire and/or any \nand  all  other  appropriate  pleading(s),  and  to  plead  any  further  affirmative  defense(s)  that  may  be \navailable  to  them  upon  the  completion  of  necessary  and  appropriate  discovery,  which  discovery  is \nongoing  at  this  time.  The  respondents  specifically  reserve  any  and  all  other  issues  for  future \ndetermination and/or litigation. (Comms’n Ex. 1 at 3; T. 4-5). \nThe record herein consists of the reporter’s hearing transcript and any and all exhibits contained \ntherein or attached thereto, as well as the parties’ blue-backed post-hearing briefs.   \n                          STATEMENT OF THE CASE \n       The  claimant,  Ms.  Wanda  Muldrow  (the  claimant)  was  72  years  old  at  the  time  of  the \ncompensable injury to her left index finger on October 4, 2021, and 74 years old as of the hearing date. \nOn October 4, 2021, the date of her compensable left index finger injury, the claimant was working \nwith the Arkansas Department of Workforce Services (Workforce Services) as a case manager. Before \nshe worked as a case manager for Workforce Services, she had worked in another state program, the \nWorkforce  Investment  Act  (WIA)  for  about  ten  (10)  years,  first  in  a  temporary,  then  later  in  a \npermanent, capacity. While she was working with the WIA the claimant took some college courses in \nbusiness, but never actually received her associate degree as she was a few hours short. (T. 7-8; 34-\n37).   \n\nWanda S. Muldrow, AWCC No. H108821 \n \n4 \n \nWhen she was 62 years old, and while she was working at the WIA and going to college some, \nthe claimant filed for and began drawing Social Security retirement benefits. She started to work with \nWorkforce Services in 2007, and continued to work with them as a case manager until she voluntarily \nresigned and fully retired effective December 31, 2021, at the age of 72 years. After she retired the \nclaimant began drawing her full state retirement benefits, and she was drawing those benefits at the \ntime of the subject hearing. (T. 37-38; 48-50; RX3 at 6).       \nOn  October  4,  2021,  the  claimant  was  working  as  a  case  manager  with  Workforce  Services \nand was walking out of her office on the way to a co-worker’s office when the door closed on her left \nindex finger, “smashing” the top part of the finger. The claimant went back into her own office/work \narea and told her supervisor, Ms. Beverly McEntire, she had caught her finger in the door and injured \nit. The incident occurred at the end of the day, so the claimant did not go to see a doctor at that time, \nbut went home where her finger began hurting worse over the course of the evening. (T. 9-13).   \nThe next day the claimant went back to work and told her supervisor she needed to see a doctor, \nand she went to see her own primary care physician, Dr. Dale Goins, at the Wadley Regional Health \nClinic.  (T.  12-13; Claimant’s Exhibit 2 at 1-6).  Dr.  Goins’s clinic note of 10/5/2021 reveals that, \namong a number of other medications, the claimant had been prescribed and taken Gabapentin in the \npast, and that she had a history of, “Hand pain and gout.” (CX2 at 1; 2). Dr. Goins assessed the claimant \nas having a, “Contusion of left hand”, and ordered an X-ray of her left hand, which included all the \nfingers of her left hand, including her left index finger. (CX2 at 3-6).   \nThe X-ray report of 10/5/2021 notes the claimant’s reported, “History of  crush injury to the \nleft index finger...The left fingers demonstrate an erosive process involving the distal interphalangeal \n\nWanda S. Muldrow, AWCC No. H108821 \n \n5 \n \njoints. Rounded densities are seen adjacent to the distal interphalangeal   joints of the left index and \nmiddle  fingers,  with  marginal  erosions  in  the  joint.  There  is  a  joint  space  narrowing  with  mild \nosteophytosis noted. No foreign body is noted. No additional injury is identified.” (CX2 at 5). This X-\nray report concludes under the, “Impression” section of the report, and states as follows: \nImpression:  There  appears  to  be  an  arthropathy  involving  the  distal  interphalangeal \njoints.  The  presence  of  periarticular  rounded  densities  are  suggestive  of  tophi,  with \nregions of well-corticated erosions. This could indicate underlying gout. The presence \nof joint space narrowing and osteophytosis, with the distribution in the interphalangeal \njoints  is  more  suggestive  of  erosive  osteoarthritis.  No  old  films  are  available  for \ncomparison Correlation with the patient’s history and blood work is necessary There is \na history of a crush injury to the claimant’s left index finger. No definite superimposed \nfracture is noted. Soft tissue swelling in the distal left index finger could indicate soft \ntissue injury. Correlation with physical exam is recommended.   \n \n(CX2 at 5).   \n        Dr. Goins splinted the claimant’s left index finger and immediately released her to return to \nher job, which already was essentially light duty work. Likewise, on October 15, 2021, after his review \nof the 10/5/2021 X-ray and examination of the claimant, Dr. Thomas Fox assessed the claimant with \npain  in  her  left  index  finger,  and  an  abrasion  of  her  left  hand.  He  opined  she  likely  had  gout,  and \nconcluded she could work light duty. (CX2, 19-21; 19-23). Dr. Fox also recommended the claimant \nreturn to see her family physician, Dr. Goins. (CX2 at 24-28).   \nThe claimant testified her job at Workforce Services required her to meet with job applicants, \ninterview them, and perform some typing duties related to documenting the meetings. (T. 18-21; 45-\n46). The claimant is right, not left-hand, dominant. She admitted under oath that Workforce Services \naccommodated her and provided her light duty work, which she initially performed; that none of her \ntreating physicians ever opined she was unable to work; and further that although her left index finger \n\nWanda S. Muldrow, AWCC No. H108821 \n \n6 \n \nwas  hurting  especially  when  she  tried  to  type,  she  continued  to  work  until  she  voluntarily  retired \neffective December 31, 2021. The claimant submitted her resignation/retirement letter on November \n3,  2021,  and  her  official  retirement  date  was  December  31,  2021.  Again, the claimant’s treating \nphysicians, including her own personal family physician, Dr. Goins, never opined she was disabled \nfrom engaging in gainful employment; and both Drs. Goins and Fox released her to light duty work \nwhich the respondents made available to her until she retired and voluntarily left their employ. (CX2 \nat 1-33; T. 21-22; 48-50).   \nThe  claimant  requested  and  the  Commission  granted  her  one  (1)-time-only  COP  to  Dr. \nD’Orsay Bryant via an order dated November 17, 2021. (CX2 at 30-31). Dr. Bryant first examined the \nclaimant  on  12/2/2021,  which  was  almost  one  (1)  entire  month  before  the  effective  date  of  her \nvoluntary retirement, 12/31/2021. Again, Dr. Bryant did not take the claimant off work, nor did he \nplace any additional physical limitations or restrictions on her ability to perform light duty work. (CX2 \n32-33). \nDr. Bryant ordered an MRI without contrast which was performed on 2/11/2022, after the date \nthe  claimant  retired  on  12/31/2021.  (CX2  at  32-33;  34).  Dr.  Bryant  diagnosed  the  claimant  with  a \nmallet  finger  avulsion  injury  of  the  second  DIP  joint  of  her  left  index  finger.  (CX2  at  34).  This \ndiagnosis is consistent with both Dr. Goins’s and Dr. Fox’s findings, supra. In a clinic/progress note \ndated 4/28/2022 Dr. Bryant noted the claimant told him, “...that she retired on 12-31-21 to help take \ncare of her husband who was on renal dialysis. She stated she wants to go back to work part time in \nsix months.” (CX2 at 35-36). Dr. Bryant followed and monitored the claimant until 11/1/2022, and \nduring this time period prescribed only conservative treatment such as splinting her left index finger, \n\nWanda S. Muldrow, AWCC No. H108821 \n \n7 \n \nand physical therapy (PT). (CX2 at 35-50). Like Drs. Goins and Fox before him, Dr. Bryant splinted \nthe claimant’s left index finger, treated her conservatively, and never recommended any surgery, nor \ndid he opine she was totally incapacitated from engaging in gainful employment. (CX2 at 1-68).   \nFinally, on May 22, 2023, the claimant was examined by and came under the care and treatment \nof  Dr.  Jeanine  Anderson  of  OrthoArkansas  in  Little  Rock.  Dr.  Andersson  is  an  orthopedic  surgeon \nspecializing in hand treatment and surgery. Dr. Andersson removed the claimant’s splint as she (i.e., \nDr. Andersson) wanted, “her to discontinue full-time immobilization of the [left] index finger”, and \nrecommended  range  of  motion  and  similar  exercises.  (CX2  at  69-72;  69-73)  (Bracketed  material \nadded). Dr. Andersson opined the claimant reached MMI as of August 14, 2023, and – like Drs. Goins, \nFox, and Bryant before her – she did not recommend any surgery on the claimant’s left index finger. \n(CX2  at  74-77;  78).  Finally,  Dr.  Andersson  assigned  the  claimant  a  63%  permanent  anatomical \nimpairment rating to the claimant’s left index finger, which the respondents accepted and have paid, \nor are paying. (CX2 at 79; RX3 at 9).                                          \nDISCUSSION \nThe Burden of Proof \n When  deciding  any  issue,  the  ALJ  and  the  Commission  shall  determine,  on  the  basis  of  the \nrecord as a whole, whether the party having the burden of proof has established it by a preponderance \nof the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The claimant has the \nburden of proving by a preponderance of the evidence  she is entitled to benefits. Stone v. Patel, 26 \nArk. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-9-704(c)(3) (2023 Lexis \nRepl.) states that the ALJ, the Commission, and the courts “shall strictly construe” the Act, which also \n\nWanda S. Muldrow, AWCC No. H108821 \n \n8 \n \nrequires  them  to  read  and  construe  the  Act  in  its  entirety,  and  to  harmonize  its  provisions  when \nnecessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 (Ark. App. 2002). In determining \nwhether the claimant has met her burden of proof, the Commission is required to weigh the evidence \nimpartially without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704(c)(4) \n(2023 Lexis Repl.); Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. \nApp. 1991); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (Ark. App. 1987). \n All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, 35 \nArk. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, 595 \nS.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility of the \nwitnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 S.W.2d \n14  (Ark.  App.  1995).  The  Commission is not required to believe either a claimant’s or any other \nwitness’s testimony, but may accept and translate into findings of fact those portions of the testimony \nit deems believable. McClain v. Texaco,  Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. App. 1989); \nFarmers Coop. v. Biles, supra.  \nThe Commission has the duty to weigh the medical evidence just as it does any other evidence, \nand its resolution of the medical evidence has the force and effect of a jury verdict. Williams v. Pro \nStaff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s province to weigh the \ntotality of the medical evidence and to determine what evidence is most credible given the totality of \nall the credible evidence of record. Minnesota Mining & Mfg’ing v. Baker, 337 Ark. 94, 989 S.W.2d \n151 (1999). \n\nWanda S. Muldrow, AWCC No. H108821 \n \n9 \n \nIn this case both attorneys did an excellent job litigating this claim at the subject hearing, and \nin  writing  their  post-trial  briefs.  As  always,  they  both  made  excellent,  knowledgeable,  articulate \narguments and represented their respective clients well.  However, based  on the applicable statutory \nand case law – which are directly on point on these facts – I am compelled to find the claimant is not \nentitled to any TTD benefits for the reasons set forth below. \nThe  claimant  has  failed  to  meet  her  burden  of proof  in demonstrating  she  is  entitled  to \nTTD  benefits  from  March  8,  2022,  through  the  date  Dr.  Andersson  opined  she  reached \nMMI, August 14, 2023. \n \nPursuant  to  Ark.  Code.  Ann.  §  11-9-521(a)  (2023  Lexis  Replacement)  a  claimant  who  has \nsustained  a  permanent  scheduled  injury  is  entitled  to TTD  or  temporary  partial  disability  (TPD) \nbenefits only during the healing period or until the employee returns to work, whichever occurs first. \n(Emphasis  added).  Moreover, Ark.  Code  Ann.  §  11-9-526  (2023  Lexis  Repl.)  prohibits  a  claimant \nfrom receiving either TTD or TPD benefits if they refused “employment suitable to his or her capacity \noffered to or procured for him or her during the continuance of the refusal, unless in the opinion of the \nWorkers’ Compensation Commission, the refusal is justifiable.”  \nThe claimant herein primarily and cleverly relies on Walker v. Cooper Standard Automotive, \nInc., 104 Ark. App. 175, 289 S.W.3d 184 (Ark. App. 2008), a case her attorney had previously tried \nand  in  which  he  had  ultimately  prevailed.  In Walker  the  claimant,  who  was  still  within  his  healing \nperiod,  was  working  light  duty,  but  the  employer  terminated  the  claimant  of  its  own  initiative, \napparently  due  to  a  desired  or  necessary  workforce  reduction.  Since  the  employer  terminated  the \nclaimant  of  its  own  accord  while  the  claimant  was  capable  of  light  duty  work  but  thereafter  failed \nand/or  refused  to  offer  the  claimant  another  suitable  light  duty  job,  the Walker  court  deemed  the \n\nWanda S. Muldrow, AWCC No. H108821 \n \n10 \n \nprovisions of Ark. Code Ann. Section 11-9-526 had not been triggered and, thus, were inapplicable. \nSee also, Walker v. Cooper Standard Automotive, Inc., 2009 AWCC 96 (AWCC No. F604949, May \n18, 2009), in the same claim on remand from the court of appeals, the Full Commission awarded the \nclaimant TTD benefits consistent with the court’s holding.   \nAlthough not on point in the case at bar, it is interesting and instructive to consider the case of   \nTyson Poultry, Inc. v. Narvaiz, 2012 Ark. 118, 388 S.W.3d 16 (2012). Narvaiz was a claimant who \nhad  sustained  a  work-related  injury,  and  had  returned  to  his  employment  performing  the  light  duty \nwork  his  employer  had  made  available  to  him, “when he called his female  supervisor  an  insulting, \nderogatory, and vulgar name (‘mother-f- - king bitch’).” Narvaiz, 2012 Ark at 2. Not surprisingly, the \nemployer  suspended  the  claimant,  then  terminated  his  employment  for  subordination  and  gross \nmisconduct. The ALJ found the claimant’s misconduct amounted to the claimant’s refusal to accept \nand perform suitable employment. The  Full Commission reversed the ALJ, finding to the contrary. \nOn appeal to the court of appeals, the court reversed the Full Commission. Thereafter, on appeal to \nour supreme  court, the court noted that pursuant  to a specific provision of Act 796 the Act is to be \n“strictly construed.” Consequently, in applying the legislative mandate of strict construction, the \nArkansas  Supreme  Court  held  that  termination  of  employment  for  misconduct  is not  tantamount  to \nrefusing  suitable  employment  and,  therefore,  since  the  claimant  was  still  within  his  healing  period, \nand was able and willing to work when the employer fired him, he was entitled to TTD benefits until \nhe reached MMI.   \nIn the case at bar, the facts are clearly and obviously distinguishable  from both Walker, and \nNarvaiz, supra. In the instant case the employer did not of its own initiative and choice terminate the \n\nWanda S. Muldrow, AWCC No. H108821 \n \n11 \n \nclaimant  for  any  reason  whatsoever,  and  certainly  not  for  purposes  of  workforce  reduction  or \nmisconduct.    The  controlling  precedent  on  the  facts  in  the  instant  claim  are  set  forth  in Lybyer  v. \nSpringdale  School  District,  2019  Ark.  App.  77,  568  S.W.3d  805  (Ark.  App.  2019),  and Turcios  v. \nTyson Foods, Inc., 2016 Ark. App. 471, 504 S.W.3d 622 (Ark. App. 2016). \nIn Lybyer, the ALJ, Full Commission, and court of appeals unanimously agreed the claimant \nhad voluntarily resigned her position and, therefore, was not entitled to a period of TTD benefits after \nshe  voluntarily  left  her  employment.  While  the  court  of  appeals  noted  the  claimant may  have  been \nentitled to benefits if she had been terminated, the court reasoned: \nBy holding that appellant was not entitled to TTD benefits, the Commission determined \nas a matter of law that a voluntary resignation is a refusal of employment, which does \nnot entitle her to TTD benefits under the Act. We agree and affirm the Commission’s \ndenial of TTD benefits under these facts.     \n \nLybyer, 2019 Ark. App. at 76. (Emphasis added). \nSimilarly, in Turcios the claimant had sustained a scheduled injury and had in fact returned to \nwork;  however,  his  employer  terminated  him after  he  refused  to  perform  the  light  duty  work  his \nemployer offered him. The Turcios court held the claimant was not entitled to additional TTD benefits \nbecause, although he had returned to work, he then refused an offer of suitable employment that fit \nwithin  his  physical  limitations  and  restrictions.  Therefore, Ark.  Code  Ann.  §  11-9-526  barred  the \nclaimant from receiving TTD benefits. Turcios, 504 S.W.3d at 624. \n     In so holding, the Turcios court explained: \nWe  hold  that  under  the  same  analysis  utilized  in Robertson, Roark,  and  the  other \npreviously cited cases, Turcios’s entitlement to TTD ended when he was returned to \nwork with his work restrictions accommodated with light-duty tasks. Pursuant to section \n11-9-521, entitlement to TTD is ended upon a claimant’s return to work or the end of \nhis  healing  period,  whichever  comes  first.  Simply  not  having  reached  maximum-\n\nWanda S. Muldrow, AWCC No. H108821 \n \n12 \n \nmedical improvement, in and of itself, is insufficient to entitle Turcios to TTD. He had \nbeen returned to work, which ended his entitlement to TTD. Further, Turcios’s failure \nto  report  to  work  and  to  call  in  as  required  by  the  company  policy  was  a  refusal  of \nsuitable  employment  within  his  capacities,  and  he  is  not  entitled  to  additional  TTD \npursuant to section 11-9-526.   \n \nTurcios, 504 S.W.3d at 624. \n \n       Finally, it is significant to note our court of appeals has followed similar reasoning concerning \nwhether a claimant is entitled to wage loss disability benefits. In Redd v. Blytheville School District, \n2014  Ark.  App.  575,  446  S.W.3d  643  (Ark.  App.  2014),  the  court  of  appeals  affirmed  the  Full \nCommission’s decision finding the claimant was not entitled to wage loss disability benefits after he \nchose  to  retire  even  though  he  admittedly  could  have  returned  to  work  as  his  employer  was  ready, \nwilling,  and  able  to  accommodate  him  by  providing  a  suitable  job  that  fit  within  his  physical \nlimitations and restrictions. Both the Commission and court referred to Ark. Code Ann. § 11-9-522 \n(b)(2)  (2023  Lexis  Repl.)  and  found the claimant’s  employer  had  in  fact  made  a bona  fide  offer  of \nemployment to him.   \nSignificantly – and in fact, dispositively – in this case the overwhelming preponderance of the \nevidence  demonstrates  the  claimant  admittedly  had  a  light  duty  job  where  Workforce  Services  was \naccommodating her with suitable employment duties she had been performing and clearly was capable \nof performing, but she – the claimant herself, of her own initiative and for her own personal reasons \n– chose to retire and end her employment. In this regard, it must be noted the claimant was 72 years \nold, and already had filed for and had been receiving Social Security retirement benefits for some ten \n(10) years. \nMoreover,  after  closing  her  left  hand/index finger in the door, the claimant’s injury  did  not \n\nWanda S. Muldrow, AWCC No. H108821 \n \n13 \n \nrequire surgery, only required her to wear a splint, and to undergo conservative treatment such as some \nPT and at-home exercises. It is also important to note the claimant’s treating physicians – including \nher own family physician, Dr. Goins – never took her off work or opined she was temporarily totally \ndisabled from performing her already light work duties between 10/4/2021 (the date of her injury) and \n12/31/21 (the date of her voluntary retirement).   \nConsequently,  based  on  the  facts  of  this  case,  the Lybyer  and Turcios  appellate  precedents \nrequire me to deny the claimant’s request for TTD benefits. Indeed, the claimant never requested TTD \nbenefits before she voluntarily retired from her light duty job for her own personal reasons; and her \nclaim for TTD benefits did not even begin until some three (3) months after she voluntarily chose to \nretire from a job the clear preponderance of the evidence reveals she was fully capable of performing. \nOr, put another way, there exists no credible – or at least grossly insufficient – evidence the claimant \nwas  incapable  of  performing  her  job  duties – i.e.,  that  she  was  temporarily  totally  disabled  from \nperforming the light duty job duties with which Workforce Services accommodated her in accordance \nand compliance with the applicable law.    \nTherefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed September 20, 2023, which \nthe parties modified and affirmed on the record at the hearing, hereby are accepted as \nfacts. \n \n2. The claimant has failed to meet her burden of proof in demonstrating she is entitled to \nTTD benefits from March 8, 2022, through August 14, 2023.   \n \n 3. The claimant’s attorney is not entitled to a fee on these facts. \n \n\nWanda S. Muldrow, AWCC No. H108821 \n \n14 \n \n      For all the aforementioned reasons, this claim hereby is denied and dismissed, subject to   \nthe parties’ appeal rights. \n      If they have not already done so the respondents shall pay the court reporter’s invoice \n  within ten (10) days of their receipt of this opinion. \n \nIT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":27376,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108821 WANDA S. MULDROW, EMPLOYEE CLAIMANT DEP’T OF WORKFORCE SERVICES, EMPLOYER RESPONDENT STATE OF ARKANSAS/PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 19, 2024 Hearing conducted before the Arkansas Workers’ Co...","outcome":"denied","outcomeKeywords":["affirmed:1","modified:1","dismissed:1","granted:2","denied:3"],"injuryKeywords":["back","fracture"],"fetchedAt":"2026-05-19T22:58:32.027Z"},{"id":"alj-H207830-2024-01-17","awccNumber":"H207830","decisionDate":"2024-01-17","decisionYear":2024,"opinionType":"alj","claimantName":"Anna Nunez","employerName":"Van Buren School District","title":"NUNEZ VS. VAN BUREN SCHOOL DISTRICT AWCC# H207830 JANUARY 17, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/NUNEZ_ANNA_H207830_20240117.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NUNEZ_ANNA_H207830_20240117.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H207830 \n \nANNA NUNEZ, Employee                                                                               CLAIMANT \n \nVAN BUREN SCHOOL DISTRICT, Employer                                         RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, Carrier                       RESPONDENT                          \n \n \n OPINION FILED JANUARY 17, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On December 18, 2023, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on October 16, 2023 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The  claimant  sustained  compensable  injuries  to  her  bilateral  ankles  on \nNovember 1, 2022. \n 3.   The claimant was earning an average weekly wage of $575.34 which would \nentitle her to compensation at the weekly rates of $384.00 for total disability benefits and \n\nNunez – H207830 \n \n$288.00 for permanent partial disability benefits. \n 4.   Respondents accepted and paid a 7% rating to the right lower extremity. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Temporary total disability or temporary partial disability benefits. \n2.     Medical from Dr. Bird. \n3.     Permanent partial disability benefits. \n4.     Attorney’s fee. \nSubsequent to the hearing the parties agreed that the only issue to be decided at  \nthis time is claimant’s entitlement to payment for Dr. Bird’s treatment.  All other issues are \nreserved. \n The claimant contends that the medical treatment she received from Dr. Bird was \nreasonably necessary emergency medical treatment for her compensable ankle injuries \nand should be the liability of the respondents. \n The  respondents  contend  that  the  treatment  with  Dr.  Bird  was  unauthorized.  \nClaimant sought a change of physician to him but obtained treatment before an order was \nentered. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \n\nNunez – H207830 \n \n3 \n \non October 16, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.      Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that \nrespondent  is  liable  for  payment  of  medical  treatment  provided  by  Dr.  Bird.    Dr.  Bird’s \nmedical treatment was unauthorized; therefore, respondent is not liable for payment. \n 3.     All other issues are reserved. \n \n FACTUAL BACKGROUND \n Claimant is a 63-year-old woman who graduated from high school and has some \ncollege credit.  For 17 years she owned and operated a mortuary transport company.  In \nJanuary  2021  she became  employed  by  respondent as a bus  driver.  She  worked  two \nhours in the morning and two hours in the afternoon.  In addition, she also worked extra \nhours driving the bus for field trips, athletic activities, et cetera.  \n On November 1, 2022 claimant was sitting in her bus waiting for school to let out \nwhen she decided to go inside the school to the bathroom.  As she was stepping off the \nbus  she  stepped  on  an  uneven  surface  and  twisted  her  right  ankle.   Claimant  was  in \nextreme pain and was taken to the Mercy emergency room in Fort Smith where she was \ndiagnosed with a right ankle trimalleolar fracture dislocation and left nondisplaced fibular \ntip fracture.  The left ankle was treated conservatively, but she underwent an open right \nankle  reduction  and  internal  fixation  procedure  by  Dr.  Bolyard  on  November  2,  2022.  \nFollowing this procedure claimant was sent to a rehab facility for a period of time before \nshe was released to return home.  Medical records from Dr. Bolyard indicate that claimant \ncontinued to have some complaints of pain involving her right ankle after the surgery.  His \n\nNunez – H207830 \n \n4 \n \ntreatment included physical therapy, the use of a boot, heated socks, and a TENS unit.  \nHe also limited claimant to sedentary work.  In a report dated April 18, 2023, Dr. Bolyard \nindicated that a recent MRI scan revealed no significant findings.  He opined that he had \nnothing further to offer  claimant from an orthopedic standpoint and stated that she had \nreached maximum medical improvement. \n After her release by Dr. Bolyard, claimant and her attorney attempted to obtain a \nchange  of  physician  through  the  Commission.  According  to  e-mails  submitted  into \nevidence several doctors declined to accept claimant as a patient.  While the process of \nfinding a new physician was ongoing, claimant on her own sought medical treatment from \nDr.  Bird.    Dr.  Bird  determined  that  the  orthopedic  hardware  was  causing  claimant’s \ncontinued  complaints  of  pain  and  he  performed  a  surgery  to  remove  that  hardware  in \nJune 2023.   \n Claimant  filed  this  claim  contending  that  she  is  entitled  to  payment  of  Dr.  Bird’s \ntreatment  as  well  as  temporary  total or  temporary  partial  disability  benefits, permanent \npartial disability benefits, and a controverted attorney fee.  As previously noted, the parties \nsubsequent  to  the  hearing  agreed  that  the  only  issue  to  be  determined at  this  time  is \nclaimant’s entitlement to payment for Dr. Bird’s treatment.  All other issues are reserved. \n \nADJUDICATION \n Claimant contends that respondent is liable for payment of the medical treatment \nshe received from Dr. Bird.  An employer shall promptly provide for an injured employee \nsuch  medical  treatment  as  may  be  reasonably  necessary  in  connection  with  the injury \nreceived by the employee.  A.C.A. §11-9-508(a).  The employer has the right to select the \n\nNunez – H207830 \n \n5 \n \ninitial  treating  physician.  A.C.A.  §11-9-514(a)(3)(A)(i).    However,  an  employee  may \nrequest  a  one-time  change  of  physician.    A.C.A.  §11-9-514(a)(2)(A),    (a)(3)(A)(ii),  (iii).  \nWhen  a  claimant  seeks  a  change  of  physician,  she  must  petition  the  Commission  for \napproval.   Stevenson  v.  Tyson  Foods,  Inc.,  70  Ark.  App.  265,  270,  19  S.W.  3d  36,  39 \n(2000).  Treatment or services furnished or prescribed by any physician other than the \none selected according to the change of physician rules, except emergency treatment, \nshall be at the claimant’s expense.  A.C.A. §11-9-514(b).   \n A.C.A. §11-9-514 provides in pertinent part: \n     (c)(1)  After being notified of an injury, the employer or \n  insurance carrier shall deliver to the employee, in person  \n  or by certified or registered mail, return receipt requested, \n  a copy of a  notice, approved or prescribed by the  \n  commission, which explains the employee’s rights and \n  responsibilities concerning change of physician. \n          (2)  If, after notice of injury, the employee is not \n  furnished a copy of the notice, the change of physician \n  rules do not apply. \n           (3)  Any unauthorized medical expense incurred \n  after the employee has received a copy of the notice \n  shall not be the responsibility of the employer. \n \n \n In this case, respondent submitted into evidence a copy of Commission Form AR-\nN dated December 5, 2022, bearing the claimant’s signature.  In addition, the form also \nhas  claimant’s  signature  acknowledging  that  she  was  provided  a  copy  of  the  form  on \nDecember 5, 2022.    Therefore, I find that notice of the change of physician rules was \nprovided  to  claimant  as  required  by  A.C.A. §11-9-514  and  any  unauthorized  medical \nexpenses after that date are not the responsibility of the respondent.   \n As previously noted, claimant filed a request for a change of physician after her \nrelease by Dr. Bolyard.  Apparently, the physicians chosen by the claimant declined to \n\nNunez – H207830 \n \n6 \n \naccept her as a patient.  Instead of finding a physician who would accept her as a workers’ \ncompensation patient the claimant on her own sought medical treatment from Dr. Bird.  \nShe continued to receive treatment from Dr. Bird despite her attorney’s advice to obtain \na change of physician order. \n  Q And did I recommend that you wait until we could get \n  a change of physician to Dr. Bird before you underwent that \n  recommended treatment? \n \n  A Yes, you did.  You recommended it, but I felt since I \n  was already dismissed by the Van Buren School District, it \n  was only a matter of time before I ran out of insurance,  \n  health insurance. \n \n \n In summary, claimant was provided a copy of Form AR-N regarding the change of \nphysician  rules.   Before  that process  could  be  completed,  claimant  on  her own  sought \nmedical  treatment  from  Dr.  Bird  and  a  change  of  physician  was  never  filed  by  the \nCommission.    Under  these  circumstances,  the  medical  treatment  provided  by  Dr.  Bird \nwas  unauthorized  and  it  is  not  the  responsibility  of  the  respondent.    A.C.A.  §11-9-\n514(c)(3). \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that respondent \nis  liable  for  payment  of  medical  treatment  she  received  from  Dr.  Bird.    The  treatment \nreceived by claimant from Dr. Bird was unauthorized; therefore, respondent is not liable \nfor payment of said treatment.  Claimant’s claim for these benefits is hereby denied and \ndismissed. \n Respondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \n\nNunez – H207830 \n \n7 \n \npreparation of the hearing transcript in the amount of $357.45. \n IT IS SO ORDERED. \n \n     _________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":10542,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207830 ANNA NUNEZ, Employee CLAIMANT VAN BUREN SCHOOL DISTRICT, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, Carrier RESPONDENT OPINION FILED JANUARY 17, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Co...","outcome":"dismissed","outcomeKeywords":["dismissed:2","denied:2"],"injuryKeywords":["ankle","fracture"],"fetchedAt":"2026-05-19T22:58:29.859Z"},{"id":"full_commission-G903144-2024-01-12","awccNumber":"G903144","decisionDate":"2024-01-12","decisionYear":2024,"opinionType":"full_commission","claimantName":"Preston Allen","employerName":"Staffmark Investments, LLC","title":"ALLEN VS. STAFFMARK INVESTMENTS, LLC AWCC# G903144 JANUARY 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Allen_Preston_G903144_20240112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Allen_Preston_G903144_20240112.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  G903144\n \n \nPRESTON ALLEN, EMPLOYEE                                           CLAIMANT \n \nSTAFFMARK INVESTMENTS, LLC, EMPLOYER RESPONDENT \n \nACE AMERICAN INSURANCE COMPANY,  \nINSURANCE CARRIER/TPA RESPONDENT NO.  1 \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND RESPONDENT NO.  2 \n         \nOPINION FILED JANUARY 12, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant is pro se. \n \nRespondents No. 1 represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law Judge \nfiled March 28, 2023.  In said order, the Administrative Law Judge made the \nfollowing findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n \n\n \nALLEN - G903144  2\n  \n \n \n2. Claimant’s first issue, whether he is entitled to additional medical \ntreatment of his stipulated compensable right arm, right leg, and lower \nback injuries, have been fully, fairly, and completely litigated under a \nprevious claim filed by Claimant.  Therefore, I find that Res \nJudicata/Law of the Case Doctrine, applies to this issue and it will not \nbe further addressed in this opinion since those issues were previously \nresolved. \n \n3.  The Commission further finds that issues 2-6 are barred by the statute \nof limitations.  As a result, all reserved issues are likewise barred by \nthe statute of limitations and will not be addressed in this opinion.  This \ncase is hereby dismissed. \n \n We have carefully conducted a de novo review of the entire record herein \nand it is our opinion that the Administrative Law Judge's March 28, 2023 decision \nis supported by a preponderance of the credible evidence, correctly applies the \nlaw, and should be affirmed.  Specifically, we find from a preponderance of the \nevidence that the findings of fact made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the Full \nCommission on appeal.  \n \n \n \n \n\n \nALLEN - G903144  3\n  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2783,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G903144 PRESTON ALLEN, EMPLOYEE CLAIMANT STAFFMARK INVESTMENTS, LLC, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPI...","outcome":"affirmed","outcomeKeywords":["affirmed:3","dismissed:1","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:46.077Z"},{"id":"alj-H208220-2024-01-12","awccNumber":"H208220","decisionDate":"2024-01-12","decisionYear":2024,"opinionType":"alj","claimantName":"Gregory Kricher","employerName":"Allied Universal","title":"KRICHER VS. ALLIED UNIVERSAL AWCC# H208220 JANUARY 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Kricher_Gregory_H208220_20240112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Kricher_Gregory_H208220_20240112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208220 \n \n \nGREGORY P. KRICHER, EMPLOYEE CLAIMANT \n \nALLIED UNIVERSAL, \nEMPLOYER RESPONDENT \n \nXL INS. AMERICA, \nCARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 12, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 10, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Eric  Newkirk,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  January  10,  2024,  in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted  into  evidence  were  Commission  Exhibit  1,  certified  mail  receipts, \nconsisting of two pages; and Respondents’ Exhibit 1, pleadings, correspondence \nand forms related to this claim, consisting of 20 numbered pages. \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed November 21, 2022, Claimant \npurportedly  suffered  an  injury  to  his  right  knee on October  17, 2022,  when  he \n\nKRICHER – H208220 \n \n2 \n \nstepped  into  a  pothole  while  coming  off  the  loading  dock  at  work.  According  to \nthe Form AR-2 that was also filed on November 21, 2022, Respondents accepted \nthe  injury  as  compensable  and  paid  medical  and  indemnity  benefits  pursuant \nthereto. \n On  December  19,  2022,  through  then-counsel  Laura  Beth  York,  Claimant  \nfiled  a  Form  AR-C,  alleging  that  he  was  entitled  to  the  full  range  of initial  and \nadditional  benefits  concerning  his  alleged  knee  injury.    No  hearing  request \naccompanied this filing.  Later, on April 5, 2023, York moved to withdraw from her \nrepresentation  of  Claimant.    In  an  Order  entered  on  April  18,  2023,  the Full \nCommission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nNovember 2, 2023.  On that date, Respondents filed the instant motion, asking for \ndismissal  of  the  claim  under  Ark.  Code  Ann.  §  11-9-702(a)(4)\n1\n  (Repl.  2012)  and \nAWCC R. 099.13 because more than six months had elapsed since Claimant took \nany action to prosecute his claim.  The Clerk of the Commission on November 2, \n2023, assigned the motion to Administrative Law Judge Chandra Black. \n \n \n1\nSince Respondents have acknowledge in their motion, and the evidentiary \nrecord  establishes,  that  Respondents  accepted  this  claim  and  paid  benefits \npursuant  thereto  (see supra),  the  appropriate  provision  would  instead  be  §  11-9-\n702(d). \n\nKRICHER – H208220 \n \n3 \n \n On November 3, 2023, Judge Black wrote Claimant, asking for a response \nto the motion within 20 days.  The letter was sent by first class and certified mail \nto  the  Camden,  Arkansas  address  of  Claimant  listed  in  the  file  and  on  his  Form \nAR-C.  Claimant signed for the certified letter on November 6, 2023; and the first-\nclass  letter  was  not  returned.    Regardless,  no  response  from  him  to  the  motion \nwas  forthcoming.    On  November 27,  2023,  a  hearing  on  the  Motion  to  Dismiss \nwas  scheduled  fo r  January  10,  2024,  at  9:30  a.m.  at  the  Commission  in  Little \nRock.  The Notice of Hearing was sent to Claimant via first-class and certified mail \nto  the  same  address  as  before.  In  this  instance, “Carla  Kricher”  signed  for  the \ncertified letter on December 12, 2023; and the first-class letter was not returned to \nthe Commission.  Thus, the evidence preponderates that Claimant received notice \nof the hearing. \n The hearing on the Motion to Dismiss proceeded as scheduled on January \n10,  2024,  before  the  undersigned.  Again,  Claimant  failed  to  appear  at  the \nhearing.    But  Respondents  appeared  through  counsel  and  argued  for dismissal \nunder the aforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n\nKRICHER – H208220 \n \n4 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby  dismissed \nwithout prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal  of the \nclaim–by  a  preponderance  of  the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nKRICHER – H208220 \n \n5 \n \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the January 10, 2024, hearing to argue against \nits dismissal) since the filing of his Form AR-C on December 19, 2022.  Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the applicability of Ark. Code Ann. § 11-\n9-  702 (Repl. 2012). \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).  At  the  hearing,  Respondents  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities,  I  agree  and  find  that the \ndismissal of this claim should be and hereby is entered without prejudice.\n2\n \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nKRICHER – H208220 \n \n6 \n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7841,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208220 GREGORY P. KRICHER, EMPLOYEE CLAIMANT ALLIED UNIVERSAL, EMPLOYER RESPONDENT XL INS. AMERICA, CARRIER RESPONDENT OPINION FILED JANUARY 12, 2024 Hearing before Administrative Law Judge O. Milton Fine II on January 10, 2024, in Little Rock, Pulaski Count...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:58:23.599Z"},{"id":"alj-H301255-2024-01-12","awccNumber":"H301255","decisionDate":"2024-01-12","decisionYear":2024,"opinionType":"alj","claimantName":"Sharice Roddy","employerName":"Core Mark Ami Artic East","title":"RODDY VS. CORE MARK AMI ARTIC EAST AWCC# H301255 JANUARY 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Roddy_Sharice_H301255_20240112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Roddy_Sharice_H301255_20240112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301255 \n \n \nSHARICE RODDY, EMPLOYEE CLAIMANT \n \nCORE MARK AMI ARTIC EAST, \n EMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 12, 2024 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on \nJanuary 12, 2024, in Forrest City, St. Francis County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Rick  Behring,  Jr.,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  January  12,  2024,  in \nForrest  City,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted into evidence without objection were the following:  Commission Exhibit \n1  and Respondents’ Exhibit 1,  forms,  pleadings,  and  correspondence  related  to \nthis claim, consisting of 17 and 27 pages, respectively. \n\nRODDY – H301255 \n2 \n \n The record reveals the following procedural history: \n The First Report of Injury or Illness, filed on February 23, 2023, reflects that \nClaimant  purportedly  suffered  an  injury  to  multiple  body  parts  on  May  26,  2022, \nfrom being pinned between a pallet jack and  a rack.  Per the Form AR-2 filed on \nMarch 14, 2023, Respondents accepted the claim and paid medical and indemnity \nbenefits pursuant thereto. \n On  April  4,  2023,  through  then-counsel  Laura  Beth  York,  Claimant  filed  a \nForm AR-C, alleging that she was entitled to the full range of initial and additional \nbenefits  concerning  her  alleged  injuries.    No  hearing  request  accompanied  this \nfiling.  Later, on August 2, 2023, York moved to withdraw from her representation \nof  Claimant.    In  an  Order  entered  on  August  25,  2023,  the  Full Commission \ngranted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nOctober  23,  2023,  when  Respondents  filed  the  instant  Motion  to  Dismiss  under \nArk. Code Ann. § 11-9-702 (Repl. 2012) and AWCC R. 099.13, along with a brief \nin support thereof.  On October 24, 2023, my office wrote Claimant, requesting a \nresponse  to  the  motion  within 20  days.    This  correspondence  was  sent  by  both \ncertified and first-class mail to the address for Claimant listed in the file and on her \nForm AR-C.  While the United States Postal Service was unable to verify whether \nClaimant   signed   for   the   certified   letter,   the   first-class   correspondence   was \nreturned with the notation “NOT DELIVERABLE AS ADDRESSED.”  Regardless, \nno response by Claimant to the motion was forthcoming. \n\nRODDY – H301255 \n3 \n \n On November 14, 2023, a hearing on Respondents’ motion was scheduled \nfor  January  12,  2024,  at 10:3 0  a.m.  at  the  St.  Francis  County  Courthouse  in \nForrest  City.    The  Notice  of  Hearing  was  sent  to  Claimant  by  certified  and  first-\nclass mail to the same address as before.  Again, it could not be verified whether \nClaimant signed for the certified letter.  But this time, the first-class letter was not \nreturned. \n The hearing proceeded as scheduled on January 12, 2024.  Claimant failed \nto appear at the hearing.  But Respondents appeared through counsel and argued \nfor dismissal under, inter alia, Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the   Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute her claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \n\nRODDY – H301255 \n4 \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction  in  pursuit  of  her  claim  since  the  filing  of  her  Form  AR-C  on  April  4,  2023.  \nMoreover,  she  failed  to  appear  on  the  hearing  to  argue  against  dismissal  of  the \nclaim,  despite  the  evidence  showing  that  both  she  and  Respondents  were \nprovided  reasonable  notice  of  the  Motion  to Dismiss  and  of  the  hearing  thereon.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause of this finding, it is unnecessary to address the applicability of Ark. Code \nAnn. § 11-9-702(a)(4) (Repl. 2012). \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co.,  2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n\nRODDY – H301255 \n5 \n \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).  Respondents  at  the  hearing  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of this claim should be and hereby is entered without prejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":6783,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301255 SHARICE RODDY, EMPLOYEE CLAIMANT CORE MARK AMI ARTIC EAST, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED JANUARY 12, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 12, 2024, in F...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:58:25.727Z"},{"id":"alj-G003461-2024-01-12","awccNumber":"G003461","decisionDate":"2024-01-12","decisionYear":2024,"opinionType":"alj","claimantName":"Spencer Tapp","employerName":"William Harris, Inc","title":"TAPP VS. WILLIAM HARRIS, INC. AWCC# G003461 JANUARY 12, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Tapp_Spencer_G003461_20240112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Tapp_Spencer_G003461_20240112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G003461 \n \n \nSPENCER J. TAPP, EMPLOYEE CLAIMANT \n \nWILLIAM HARRIS, INC., \n EMPLOYER RESPONDENT \n \nACADIA INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 12, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 11, 2024, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Ms.  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    Claimant  gave  testimony  at  the  hearing.    The  evidentiary  record \nconsists  not  only  of  that  testimony,  but  also  of  Commission’s  Exhibit  1,  forms, \npleadings,  and  correspondence  related  to  this  claim,  consisting  of  13  numbered \npages; and Respondents’ Exhibit 1, forms, pleadings, and correspondence related \nto  this  claim,  consisting  of  one  index page    and  11  numbered  pages  thereafter.    \nAlso,  in  order  to  address  adequately  this  matter  under  Ark.  Code  Ann.  § 11-9-\n705(a)(1)  (Repl.  2012)(Commission  must “conduct  the  hearing    .  .  .  in  a  manner \nwhich best ascertains the rights of the parties”), I have blue-backed to the record \ncertain documents  from  the  Commission’s  file  on  the  claim,  consisting  of  21 \n\nTAPP – HG003461 \n \n2 \npages.   In accordance  with Sapp  v.  Tyson  Foods,  Inc.,  2010  Ark. App.  517, ___ \nS.W.3d   ___,   this   blue-backed   exhibit   has   been   served   on   the   parties   in \nconjunction with this opinion. \n The  record  reflects  the  following  procedural  history:   On  September  13, \n2011, Claimant filed his first Form AR-C in connection with this matter.  Therein, \nhe alleged  that  he  injured  his  shoulder  at  work  on  April  22,  2010.    All  he  sought \nwas  additional  treatment  in  the  form  of  a  CT  scan,  along  with  reimbursement  of \nmedical expenses.  This was also the case in the second Form AR-C that he filed \non  March  5,  2012.    However,  in  the  third  Form  AR-C,  which  Claimant  filed  on \nAugust 17, 2012, he requested the full range of initial and additional benefits. \n On October 3, 2012, a hearing on the claim was held before Administrative \nLaw Judge Andrew Blood.  In an opinion issued on October 4, 2012, Judge Blood \nmade the following findings of fact and conclusions of law: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nof this claim. \n2. On April 22, 2010, the employment relationship existed during which \ntime  the  claimant  earned  wages  sufficient  to  entitle  him  to  weekly \ncompensation     benefits     of     $562.00/$422.00,     for     temporary \ntotal/permanent partial disability. \n3. On  April  22,  2010,  the  claimant  sustained  an  injury  to  his  left \nshoulder arising out of and in the course of his employment. \n\nTAPP – HG003461 \n \n3 \n4. The bilateral CT scan of the glenohumeral joint with 3-D and surface \nreconstruction, recommended by Dr. David N. Collins, the claimant’s \ntreating  physician,  is  reasonably  necessary  medical  treatment  in \nconnection  with  the  treatment  of  the  claimant’s  April  22,  2010, \ncompensable injury, pursuant to Ark. Code Ann. § 11-9-508(a). \n5. The  respondents  shall  pay  all  reasonabl[e]  hospital  and  medical \nexpenses arising out of the claimant’s April 22, 2010, compensable \nleft shoulder injury. \n6. The  respondents  have  controverted  the  claimant’s  entitlement  to \nmedical  treatment  as  recommended  by  his  treating  physician,  Dr. \nDavid   N.   Collins,   to   include   the   bilateral   CT   [s]can   of   the \nglenohumeral joint with 3-D and surface reconstruction. \nThis decision was not appealed. \n Mark  Martin,  Claimant’s  counsel  in  that  2012  hearing,  moved  to  withdraw \non  August  21,  2015.    Claimant  notified  the  Commission  by  letter  on  August  31, \n2015, that he did not object to the withdrawal.  In an Order entered on September \n9,  2015,  the  Full  Commission  granted  the  motion  pursuant  to  AWCC  Advisory \n2003-2.  In the ensuing years thereafter,  as documented by  records in evidence, \nRespondents continued to furnish medical and indemnity benefits to Claimant. \n Respondents on September  22,  2023,  moved  for  a  dismissal  of  the  claim \nwithout  prejudice  under  AWCC  R. 099.13  and  Ark.  Code  Ann.  § 11-9-702  (Repl. \n2012)  because  of,  inter  alia,  Claimant’s  alleged  failure  to  make  a  bona  fide \n\nTAPP – HG003461 \n \n4 \nhearing  request  within  the  previous  six  months.    My  office  wrote  Claimant on \nSeptember  25,  2023,  asking  for  a  response  to  the  motion  within 20  days.    The \nletter was sent via first-class and certified mail to the address for Claimant listed in \nthe file.  He responded on September 29, 2023, writing: \nI  am  responding  to  a  Motion  to  Dismiss  dated  9-25-2023,  sent  to \nme via certified mail. \n \nI disagree with this motion to dismiss due to the nature of my injury.  \nMy  surgeons  have  stated  the  need  for  follow-up  care  and  the \npotential  for  additional  medical  interventions  in  the  future.    I  am \ncurrently  scheduled  for  a  follow-up  visit  with  my  surgeon  on  10-5-\n2023 due to increasing pain.  This appointment has been approved \nby  the  insurance  company  that  has  filed  the  Motion  to  Dismiss.    I \nfind it interesting that the Motion to Dismiss was requested on 9-22-\n2023,  the  day  that  my  wife  communicated  with  the  insurance \nadjuster requesting the appointment.  I request a hearing if that is \nnecessary to proceed with my opposition to this motion. \n \n(Emphasis added)  Based on this, I informed the parties on October 9, 2023, that I \nam  taking  the  Motion  to  Dismiss  under  advisement  and  would  be  issuing \nprehearing  questionnaires.    However,  Claimant  notified  me  by  email  on  October \n20, 2023, that he was “not requesting benefits to be paid, but will have the need \nfor additional medical care in the future . . . .”  I interpreted this as a withdrawal of \nthe hearing request, and informed the parties of this that same day. \n On  October  24,  2023,  I  scheduled  a  hearing  on  the  Motion  to Dismiss  for \nDecember  7,  2023,  at  9:30  a.m.  at  the  Commission  in  Little  Rock.    Later,  on \nNovember  13,  2023,  this  was  re-set  for  January  11,  2024,  at  9:30  a.m.    The \nNotice  of Hearing was sent to the parties by first-class and certified mail; and as \nalluded to above, both appeared before me at the appointed time.  As the certified \n\nTAPP – HG003461 \n \n5 \nmail  receipt  reflects, and Claimant  confirmed  in  his  testimony,  he  received  the \nnotice.  Respondents asked for dismissal of the claim without prejudice under Ark. \nCode Ann. § 11-9-702(d) (Repl. 2012) and AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following Findings \nof  Fact  and  Conclusions  of  Law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The parties  were  provided  reasonable  notice  of  the   Motion  to \nDismiss and of the hearing thereon under AWCC R. 099.13. \n3. The Commission is authorized to dismiss claims lacking a justiciable \nissue pursuant to AWCC R. 099.13. \n4. This  claim  should  be,  and  hereby  is,  dismissed without  prejudice \npursuant  to  AWCC  R.  099.13  because  of  the  lack  of  a  justiciable \nissue. \n5. Because  of  the above  finding,  Ark.  Code  Ann. § 11-9-702(d)  (Repl. \n2012) will not be addressed. \nIII.  DISCUSSION \n AWCC R. 099.13 provides in relevant part: \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \n\nTAPP – HG003461 \n \n6 \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n The  Arkansas  Court  of  Appeals  in Johnson  held  that  a  claim  could  be \ndismissed  for  lack  of  prosecution  based  on  the  fact  that  there is  no  justiciable \nissue.    The  authority  for  doing  so  comes  under  Rule  13,  which  the  Commission \npromulgated  under  Ark.  Code  Ann.  §  11-9-205(a)(1)(A)  (Repl.  2012).    This \nprovision  authorizes it  “[t]o  make  such  rules  and  regulations  as  may  be  found \nnecessary[.]”  See Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d \n562  (1969); Johnson, supra.   Contra  Dillard v.  Benton  Cty.  Sheriff’s  Off.,  87 Ark. \nApp. 379, 192 S.W.3d 287 (2004)(“Rule 13 . . . allows a dismissal . . . pursuant to \nArk.  Code  Ann.  §  11-9-702(b)(4),  the  portion  of  the  statute  relating  to  additional \nbenefits”).    Certainly,  such  a  claim  could  be  re-filed  if  a  justiciable  issue  arises, \nprovided that all other prerequisites for a cognizable claim are met. \n At  the  hearing,  Claimant  during  his  testimony  conceded that  there  are  no \njusticiable issues at present regarding this claim.  Any treatment that he has been \nseeking has been  covered by Respondents.   Their counsel assured Claimant on \nthe  record  that  this  would  continue  to  be  the  case.    Claimant  also  testified  that \nbased on the foregoing, he does not object to the dismissal of the claim. \n\nTAPP – HG003461 \n \n7 \n I credit Claimant’s testimony.  Under Johnson, supra, this claim should thus \nbe dismissed under Rule 13 due to the lack of ripeness.  Because of this finding, it \nis unnecessary to address the application of § 11-9-702. \n That, however, leaves the question of whether the dismissal should be with \nor without prejudice.  The Commission possesses the authority to dismiss claims \nwith  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co.,  23  Ark. App.  137,  744 \nS.W.2d  402  (1988).    This  includes  claims  dismissed  under  Rule  13.   Johnson, \nsupra.  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS 5 10, the Commission \nwrote:    “In  numerous  past  decisions,  this  Commission  and  the  Appellate  Courts \nhave   expressed   a   preference   for   dismissals   without   prejudice.”      (citing \nProfessional  Adjustment  Bureau  v.  Strong,  75  Ark. 249, 629  S.W.2d  284  (1982); \nHutchinson  v.  North  Arkansas  Foundry,  Claim  No.  D902143  (Full  Commission \nOpinion  filed  October  23,  1991)).    In  light  of  this  preference,  along  with  facts  of \nthis case and Respondents’ agreement that dismissal should be without prejudice, \nthe dismissal of this claim is hereby entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove,  the  Motion  to  Dismiss  is  hereby  granted,  and  this  claim  is  hereby \ndismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n \n\nTAPP – HG003461 \n \n8 \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":11420,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G003461 SPENCER J. TAPP, EMPLOYEE CLAIMANT WILLIAM HARRIS, INC., EMPLOYER RESPONDENT ACADIA INS. CO., CARRIER RESPONDENT OPINION FILED JANUARY 12, 2024 Hearing before Administrative Law Judge O. Milton Fine II on January 11, 2024, in Little Rock, Pulaski Coun...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:58:27.798Z"},{"id":"full_commission-H207527-2024-01-11","awccNumber":"H207527","decisionDate":"2024-01-11","decisionYear":2024,"opinionType":"full_commission","claimantName":"Michael Jenkins","employerName":"Fence World, Inc","title":"JENKINS VS. FENCE WORLD, INC. AWCC# H207527 JANUARY 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Jenkins_Michael_H207527_20240111.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Jenkins_Michael_H207527_20240111.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H207527\n \n \nMICHAEL K. JENKINS, EMPLOYEE  CLAIMANT \n \nFENCE WORLD, INC., EMPLOYER RESPONDENT \n \nBRIDGEFIELD CASUALTY INSURANCE COMPANY,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED JANUARY 11, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE B. TANNER THOMAS,  \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE JASON M. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed July 11, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2.  That an employer/employee relationship existed on May 11, \n2022, the date of the claimed injuries.  At the time of the claimed \ninjury, the claimant earned an average weekly wage of $676.00, \nsufficient for TTD/PPD rates of $451.00 / $338.00 respectively.  \n \n \n\n \nJENKINS - H207527  2\n  \n \n \n3.  The respondents are estopped from denying the responsibility of \nthe visit to the UAMS ER on May 11, 2022, notwithstanding the \nfact that the injury was not found to be compensable, and that the \nrespondents are consequently responsible for said visit. \nHowever, the respondents are not found to be responsible for the \nreturn visit to the UAMS ER on May 14, 2022.  \n \n4.  That the claimant has failed to satisfy the required burden of \nproof that his claim of an injury which constituted a strain to his \nright lower leg and any remaining claim of an injury to the right \nlower leg and knee is compensable. \n \n5.  That the claimant has failed to satisfy the required burden of \nproof to show that the remaining claims for injuries to various \nbody parts are compensable. \n \n6.  That the question for the medical treatment for the claimed \ninjuries are found to be moot, with the exception of the initial visit \nto the UAMS ER on May 11, 2022. \n \n7.  That the claimant has failed to satisfy the required burden of \nproof to show he is entitled to TTD.  \n \n8.  The question of attorney fees allowed pursuant to Arkansas Code \nAnnotated §11-9-715, is found to be moot.  \n \n9.  If not already paid, the respondents are ordered to pay for the \ncost of the transcript forthwith.  \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's July 11, \n2023 decision is supported by a preponderance of the credible evidence, \n\n \nJENKINS - H207527  3\n  \n \n \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":3473,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H207527 MICHAEL K. JENKINS, EMPLOYEE CLAIMANT FENCE WORLD, INC., EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 11, 2024 Upon review before the FULL COMMISSIO...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1"],"injuryKeywords":["strain","knee"],"fetchedAt":"2026-05-19T22:29:46.074Z"},{"id":"alj-H302634-2024-01-11","awccNumber":"H302634","decisionDate":"2024-01-11","decisionYear":2024,"opinionType":"alj","claimantName":"Marissa Lara","employerName":"J. B. Hunt Transport Inc","title":"LARA VS. J. B. HUNT TRANSPORT INC. AWCC# H302634 JANUARY 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/LARA_MARISSA_H304795_20240111.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LARA_MARISSA_H304795_20240111.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H304795 \n \nMARISSA M. LARA, Employee                                                      CLAIMANT \n \nJ. B. HUNT TRANSPORT INC., Employer                  RESPONDENT \n \nESIS INC., Carrier                    RESPONDENT \n \n \n OPINION FILED JANUARY 11, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JOSEPH H. PURVIS, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On December  7,  2023,  the  above  captioned  claim  came  on  for a hearing  at Springdale, \nArkansas. A pre-hearing conference was conducted on October 12, 2023, and a pre-hearing order was \nfiled on that same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n 2.   The employee/employer/carrier relationship existed on June 26, 2023. \n 3.  Claimant sustained a compensable injury on June 26, 2023.  \n At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Whether claimant is entitled to an attorney’s fee on temporary total disability benefits. \n All other issues are reserved by the parties. \n\nLara-H304795 \n2 \n \n The claimant contends that “The claimant, Marissa Lara, sustained a compensable head injury \non June 26, 2023, while working for J.B. Hunt Transport, Inc. in Gravette, Arkansas when he was hit \nin  the  head  by  falling equipment.  The  claimant  has  been given  the  restriction  by  Nicolas  J.  Daniel, \nMD, of no driving, however, no alternative light duty work has been offered. The claimant contends \nthat  he is owed  temporary  total  disability  benefits  from  June  26, 2023, through  a  date  yet  to  be \ndetermined. Due to the controversion of entitled benefits, the respondents are obligated to pay one \nhalf of the claimant’s attorney’s fees. Claimant reserves the right to raise additional contentions at the \nhearing of this matter.”  \n The respondents contend that “Claimant sustained a compensable incident on or about June \n26, 2023, which  the  respondents  accepted  from  the  outset  as  compensable.  The  respondents  have \npaid and are continuing to pay all sums that are due and owing.”\n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant, \nthe following findings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on October \n12, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.   Claimant's attorney is entitled to an attorney fee on temporary total disability benefits paid \nto claimant as a result of claimant’s compensable head injury. \n \n FACTUAL BACKGROUND \n During the prehearing conference, the parties advised that they believed this matter could be \nsubmitted on a stipulated record. To that end, both submitted briefs before the trial date, which were \n\nDelgado-H010070 \n3 \n \n \nadmitted as evidence by agreement of the parties. In reviewing those submissions, I see no issues of \nmaterial  facts  that  are  in  dispute. However,  respondents  did  not  agree  to  have  the  deposition  of \nclaimant  admitted,  and  as  such,  a  hearing  was  held  on December  7,  2023,  during  which  claimant \ntestified.  \nHEARING TESTIMONY  \n \n Claimant  testified that on  June  26,  2023, he  suffered  a  head  injury  while  working  for \nrespondent, J. B. Hunt as a local CDL truck driver. He was rushed to the emergency room where he \nreceived five staples in his head and testified that he had a concussion. Claimant was given medication \nthat restricted his ability to drive. After the staples were removed at the emergency room on July 8, \n2023, claimant  was  sent  by  respondent  to the Conservative  Care  Occupational  Health  Clinic. \nFollowing a physical examination with Dr. Daniel Nicholas on July 13, 2023, claimant’s work status \nwas limited in that he was not released to drive a truck.  \n Claimant said he sought the service of his attorney on July 31, 2023, because he was having \ntrouble getting in contact with Valerie Wilkerson, the adjuster that was handling his claim. Claimant \ntestified that he made multiple phone calls, left multiple voice mails, and sent emails and never heard \nback from her. He finally received compensation about two weeks after he met with his attorney.  \n On cross-examination, claimant said he reported the injury to his supervisor immediately after \nhe was injured. He did not fill out any paperwork from J. B. Hunt before being taken to the emergency \nroom and was on a leave of absence after the injury. Claimant said he had not been sent any paperwork \nregarding  the  injury.  He  spoke  with  the  claims  adjuster, Valerie  Wilkerson, on  June 28,  2023,  and \nanswered her questions. After that call, claimant said he tried calling the phone number that she gave \nto  him,  but  she  never  returned  his  call.  He  said  he  called  her  the next week  and again about  three \nweeks later. Claimant testified that he had voice mail and had not received any messages nor any email \n\nDelgado-H010070 \n4 \n \n \nfrom Ms. Wilkerson. He said he next heard from Ms. Wilkinson in the middle part of August 2023. \nClaimant agreed that July 31, 2023, was the first formal filing of his workers' compensation claim on \nthe form AR-C, and he heard from the respondents within three days of filing that claim. Claimant \nagreed that his medical bills have been paid, and that the check for his temporary total disability was \nreceived by his attorney.  \n I found claimant’s testimony to be credible and consistent  with  the  documentary  evidence \nsubmitted on his behalf.  \nREVIEW OF THE EXHIBITS \n \n Claimant provided the medical records that related to his injury, including those that restricted \nhim from driving from June 26, 2023, through September 7, 2023. The medical provider selected by \nrespondent, Conservative Care Occupational Health, completed Form AR-3 on both July 13, 2023, \nand July 27, 2023, both of which contain the contact information for respondent ESIS.  \n Claimant’s non-medical records contain the AR-C filed on July 21, 2023, the AR-2 filed by \nrespondent on August 3, 2023, and documents after those dates that have little bearing on the issue \nbefore me.  \n During claimant’s testimony, a question was raised about when respondent was notified about \nhis injury. To clarify the record, I marked as Commission Exhibit #2 the First Report of Injury or \nIllness filed by respondents, stating the employer was notified of the injury on June 26, 2023, and the \nadministrator was notified on June 28, 2023.   \n \nADJUDICATION \n \n  After reviewing the testimony and the evidence, I find the sequence of relevant events \nto be as follows:   \n\nDelgado-H010070 \n5 \n \n \nJune  26,  2023: Claimant  injured his  head while engaged  in  his  duties  for \nrespondents. He was  taken to  Gravette  Hospital by someone  at J.B.  Hunt, \nwhere  he received sutures  in  his  head. The  discharge  instructions  restricted \nclaimant from driving.  \nJune 28,  2023:    Valerie  Wilkerson,  a  senior  claims  specialist  with  ESIS, was \nnotified of the injury. She spoke with claimant on that day. \nLate   June/early   July:      An   appointment   was   made   for   Claimant with \nConservative Care Occupational Health, and communicated to claimant.  \nJuly 8, 2023:  The staples were removed from claimant’s head.  \nJuly 13, 2023:  Claimant had his first visit at Conservative Care Occupational \nHealth, where Physician’s Assistant J. Daniel Nicholas saw him. The restriction \non truck driving was continued due to “dizziness and decreased reaction time.”  \nPA Nicholas reported that the “return to work plan discussed with patient and \ncommunicated to his employer.”  A Form AR-3 was completed on this day, \nwith an estimated time for the duration of treatment to be “several weeks.”  \nJuly 27, 2023:  Claimant again saw PA Nicholas, and he was again restricted \nfrom  truck  driving. The  restriction  was  again  discussed  with  claimant  and \ncommunicated to respondent.  \nJuly 31, 2023:   Claimant filed Form-C requesting Temporary Total Disability \nBenefits. \nAugust 3, 2023- Form 2 filed by Respondents stating first date of Disability is \nJune 27, 2023, with July 4, 2023, being the first day of disability.  \nAugust 7, 2023: ESIS mails check postmarked August 7, 2023, for the past due \n\nDelgado-H010070 \n6 \n \n \ntemporary total disability payments to claimant’s counsel’s office, which was \nreceived on August 15, 2023. \n In its brief, respondents asserted that they “promptly responded within four days of having \nreceived electronic notice and immediately responded they accepted this claim as compensable.”  I \nagree; once an attorney filed the AR-C, respondents did what it should have done much earlier in the \nprocess. However, I disagree with respondent’s contention that “Nothing can be done until the \nclaimant  actually  starts  his  claim;” the  facts  in  the  case show  that  respondents  did  not  wait  for \nsomething to be filed before providing medical benefits as the law requires. Regarding temporary total \ndisability benefits, Arkansas Code Annotated §11-9-501 provides:  \n \n(a)(1) Compensation to the injured employee shall not be allowed for the first \nseven (7) days' disability resulting from injury, excluding the day of injury. \n(2) If a disability extends beyond that period, compensation shall commence \nwith the ninth day of disability. \n(3) If a disability extends for a period of two (2) weeks, compensation shall \nbe allowed beginning the first day of disability, excluding the day of injury.  \n \n Claimant credibly testified that he attempted to contact Valerie Wilkerson on several occasions \nand did not hear back from her. The records in evidence show that ESIS was provided with Form \nAR-3 on July 13, 2023, and July 27, 2023, which continued the claimant’s work restrictions. There was \nnothing  preventing  respondents  from starting  the disability  benefits  as  per A.C.A. §11-9-501  after \nclaimant had been off work for the requisite amount of time.  \n In Cleek v. Great Southern Metals, 335 Ark. 342, 981 S.W.2d 529, (1998) the Arkansas Supreme \nCourt held it “has long recognized that making an employer liable for attorney's fees serves legitimate \nsocial purposes such as discouraging oppressive delay in recognition of liability, deterring arbitrary or \ncapricious denial of claims, and insuring the ability of necessitous claimants to obtain adequate and \ncompetent legal representation.”   In its reply brief, respondent said “Unfortunately, it is a matter of \n\nDelgado-H010070 \n7 \n \n \nfact that once the Respondents receive a claim, they investigate.”  This overlooks that the injury caused \na  readily  apparent  injury  on  June  26,  2023,  that  claimant  was  taken  to  the  emergency  room  by  an \nemployee  of  J.B.  Hunt on  that  day,  that Ms.  Wilkerson knew  of  the  claim  on  June  28,  2023, had \ninterviewed claimant, had scheduled him for his appointment with Conservative Care Health Clinic, \nand had received the AR-3 forms completed by that provider during the month of July.  Ms. Wilkerson \nhad ample time to investigate this matter in the five weeks before claimant felt he needed to retain \ncounsel to  receive  disability  benefits. To find  for respondents,  I would have  to  believe  that  Ms. \nWilkerson was almost ready to  issue  that  first  check  when  she  got  the  notice  that  Mr.  Kinder  was \ninvolved, and his entry into the case had no influence on her decision to issue it. Lacking any evidence \nto  support  that  conclusion, I  find it was Mr. Kinder’s appearance  that  caused  the end  to  the \n“oppressive delay in recognition of liability” for indemnity benefits. The failure to pay those benefits \namounted to controversion; those (in)actions speak louder than the acceptance of the claim on the \nAR-C  filed  by  respondent  on  August  3,  2023. As  such, Mr.  Kinder is due an attorney’s fee as per \nA.C.A §11-9-715.  \nORDER \n \n Claimant's attorney is entitled to an attorney's fee on temporary total disability benefits paid \nto claimant. \nRespondents  are  liable  for  payment  of  the  court  reporter's  charges  for  preparation  of  the \nhearing transcript. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":13040,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304795 MARISSA M. LARA, Employee CLAIMANT J. B. HUNT TRANSPORT INC., Employer RESPONDENT ESIS INC., Carrier RESPONDENT OPINION FILED JANUARY 11, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas. Claiman...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["concussion","back"],"fetchedAt":"2026-05-19T22:58:19.472Z"},{"id":"alj-H102591-2024-01-11","awccNumber":"H102591","decisionDate":"2024-01-11","decisionYear":2024,"opinionType":"alj","claimantName":"Salvador Romero","employerName":"Tyson Poultry, Inc","title":"ROMERO VS. TYSON POULTRY, INC. AWCC# H102591 JANUARY 11, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ROMERO_SALVADOR_H102591_20240111.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROMERO_SALVADOR_H102591_20240111.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H102591 \n \nSALVADOR R. ROMERO, EMPLOYEE      CLAIMANT \n \nTYSON POULTRY, INC., EMPLOYER               RESPONDENT \n \nTYSON POULTRY, INC./TYNET CORP., CARRIER/TPA          RESPONDENT  \n \n \nOPINION FILED 11 JANUARY 2024 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe, 11 January 2024, in Pine Bluff, Jefferson County, Arkansas. \n \nThe pro se claimant failed to appear. \n \nMr. J.  Matthew Mauldin,  Attorney-at-Law  of  Little  Rock,  Arkansas,  appeared for  the \nrespondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Pine Bluff, \nArkansas, on 11 January 2024.  This case relates to a workplace injury sustained on 21 March \n2020.  A Form AR-4, dated 31 March 2021, was first filed with the Commission showing that \na number of benefits were paid to the claimant on his compensable injury/injuries.  A Form \nAR-C, dated 28 April 2022, was eventually filed on the claimant’s behalf by counsel with the \nWren Law Firm. The Wren Law Firm later requested to be relieved as counsel for the \nclaimant, and that request was granted by the Full Commission in an order dated 28 \nFebruary 2023. \n On 23 October 2023 the respondents filed the immediate Motion requesting that this \nmatter be dismissed for lack of prosecution.  Notice of the respondents’ Motion and then \nnotice of a hearing date for that Motion were sent to the claimant on 25 October 2023 and 20 \nNovember 2023, respectively.  I will note that it is the Commission’s practice for any mail \n\nROMERO- H102591 \n2 \n \nrelated to Motions to Dismiss is sent to a pro se claimant via USPS First-Class mail and \nUSPS Certified Mail.  Returned or undeliverable mail is added to the claimant’s file. The \nFirst-Class mailings of the above-noted notices were not returned to the Commission, but the \nCertified copies of those mailings were returned to the Commission as “unclaimed.”  \nThe  claimant  did  not  file  an  objection  to  the  dismissal  or  appear  at  the  hearing  to \nargue against the respondents’ Motion.  As argued by the respondents at the hearing, the file \nreflects no request for a hearing on a claim in the relevant time preceding the filing of that \nmotion.  Notice  of  that  motion  and  notice  of  the  hearing  on  that  motion  were  sent  to  the \naddress provided by the claimant, and the claimant chose not to appear to resist the Motion \nto Dismiss this  action.  The  respondents  appeared,  presented  their Motion,  and  offered \nsupporting evidence into the record. \n Arkansas Code  Annotated §11-9-702(a)(4)  states  that  a  matter  may  be  dismissed \nwithout prejudice after six (6) months without a bona fide request for a hearing.  Our Rule \n99.13 provides for a dismissal for failure to prosecute an action upon application by either \nparty.  Based on the record, the available evidence, and the arguments of the respondents’ \ncounsel, I find that the respondents’ Motion to Dismiss should be granted and that the matter \nshould be dismissed without prejudice. \nVI.  ORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3337,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H102591 SALVADOR R. ROMERO, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYSON POULTRY, INC./TYNET CORP., CARRIER/TPA RESPONDENT OPINION FILED 11 JANUARY 2024 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law ...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:58:21.532Z"},{"id":"full_commission-G409071-2024-01-10","awccNumber":"G409071","decisionDate":"2024-01-10","decisionYear":2024,"opinionType":"full_commission","claimantName":"Ruby Moody","employerName":"Arkansas Department Of Community Corrections","title":"MOODY VS. ARKANSAS DEPARTMENT OF COMMUNITY CORRECTIONS AWCC# G409071 JANUARY 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Moody_Ruby_G409071_20240110.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Moody_Ruby_G409071_20240110.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. G409071 \n \nRUBY MOODY,  \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF COMMUNITY \nCORRECTIONS, EMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nCARRIER \nRESPONDENT \n \nOPINION FILED JANUARY 10, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE WILLIAM C. FRYE, Attorney at \nLaw, North Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. \nMCLEMORE, Attorney at Law, Little Rock, Arkansas. \n \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n The respondents appeal and the Claimant cross-appeals an opinion \nand order of the Administrative Law Judge filed June 23, 2023.  In said \norder, the Administrative Law Judge made the following findings of fact and \nconclusions of law:  \n1. Arkansas Workers’ Compensation Commission has jurisdiction   \nover this claim. \n \n2.  I hereby accept the above-mentioned proposed stipulations as \nfact. \n \n \n\nMOODY- G409071  2\n  \n \n \n3.  The Claimant proved by a preponderance of the evidence that \nshe sustained wage-loss disability benefits in the amount of 24% \nover and above her combined value rating of a 19% impairment \nfor her neck and back injuries of July 19, 2022. \n \n4. The Claimant’s attorney is entitled to a controverted attorney’s \nfee on the indemnity benefits awarded herein.  \n \n5. All issues not litigated are reserved under the Arkansas Workers’ \nCompensation Act. \n \n                         \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's June 23, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n\nMOODY- G409071  3\n  \n \n \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority finding that the claimant has \nproven by a preponderance of the credible evidence that she sustained \nwage loss disability benefits in the amount of 24% over and above her \ncombined value rating of a 19% impairment for her neck and back injuries of \nJuly 19, 2022. \nThe parties stipulated the claimant suffered cervical and lumbar \ninjuries while employed by the respondent employer on October 30, 2014. \n(Resp. Ex. 2, P. 4) Her claim was accepted as compensable, and she \n\nMOODY- G409071  4\n  \n \n \nunderwent a cervical fusion at C6-7 and a partial corpectomy at C5 \nperformed by Dr. Reza Shahim on October 26, 2021. (Resp. Ex. 1, Pp. 15-\n16). On April 11, 2022, Dr. Barry Baskin found the claimant to be at \nmaximum medical improvement (MMI) and assigned a ten percent (10%) \nanatomical impairment rating to the body as a whole as the result of her \ncervical injury.  (Resp. Ex. 1, Pp. 27-28).  \nThe claimant underwent a right L5-S1 lumbar microdiscectomy by \nDr. Shahim on September 6, 2022.  She was released at MMI by Dr. Baskin \nas the result of her lumbar surgery on December 19, 2022.  Dr. Baskin \nassessed a 10% rating to her lumbar spine and when combined with the \n10% rating to her cervical spine entitled her to a total impairment of 19% to \nthe body as a whole.  (Resp. Ex. 1, Pp. 37-38, 47-49). The claimant \nperformed reliably on her Functional Capacity Evaluation (FCE) on January \n10, 2023. (Resp. Ex. 1, Pp. 50-69).  She demonstrated the ability to perform \nwork in the light classification at that time. Id. The respondents provided \nvocational rehabilitation for the claimant beginning in July 2022, but the \nclaimant elected to discontinue vocational rehabilitation services and job \nplacement assistance since she did not believe she was capable of going \nback to work. (Resp. Ex. 2, Pp. 9-16, 22-25). \n\nMOODY- G409071  5\n  \n \n \nAfter a March 29, 2023 hearing, an Administrative Law Judge (ALJ) \nawarded the claimant 24% wage-loss over and above her 19% impairment \nrating. \nThe wage-loss factor is the extent to which a compensable injury has \naffected the claimant's ability to earn a livelihood. Wal-Mart Stores, Inc. v. \nConnell, 340 Ark. 475, 10 S.W.3d 727 (2000).  To be entitled to any wage-\nloss disability benefit in excess of permanent physical impairment, a \nclaimant must first prove, by a preponderance of the evidence, that she \nsustained permanent physical impairment as a result of a compensable \ninjury. Id. The Commission must determine disability after consideration of \nmedical evidence and other factors affecting wage loss, such as the \nclaimant's age, education, and work experience. Tempworks Mgmt. Servs. \nv. Jaynes, 2020 Ark. App. 70, 593 S.W.3d 519 (2020). Motivation, postinjury \nincome, credibility, demeanor, and a multitude of other factors are matters to \nbe considered in claims for these wage-loss disability benefits in excess of \npermanent physical impairment. Id. In considering factors that may affect an \nemployee's future earning capacity, the Commission considers the \nclaimant's motivation to return to work, since a lack of interest or a negative \nattitude impedes the assessment of the claimant's loss of earning \ncapacity.  Emerson Electric v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 \n(2001). In determining wage-loss, the Commission may take into \n\nMOODY- G409071  6\n  \n \n \nconsideration the worker's age, education, work experience, medical \nevidence and other matters reasonably expected to affect the worker's future \nearning power.  A worker may be entitled to additional wage-loss disability \neven though his wages remain the same or increase after the injury. City of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984). \na.  The claimant elected to discontinue vocational \nrehabilitation and job placement assistance and is, \ntherefore, barred from receiving wage-loss benefits. \n  \nThe key question in this matter is what, if any, impact the claimant’s \nrefusal to enter into vocational rehabilitation has on her claim for wage-loss \nbenefits. Our rules are clear that:   \nThe employee shall not be required to enter any program of \nvocational rehabilitation against his or her consent; however, \nno employee who waives rehabilitation or refuses to \nparticipate in or cooperate for reasonable cause with either \nan offered program of rehabilitation or job placement \nassistance shall be entitled to permanent partial disability \nbenefits in excess of the percentage of permanent physical \nimpairment established by objective physical findings.  \n \nArk. Code Ann. § 11-9-505(b)(3).  \nAn employer relying on this defense must show that the claimant \nrefused to participate in a program of vocational rehabilitation or job-\nplacement assistance or, through some other affirmative action, indicated an \nunwillingness to cooperate in those endeavors and that such refusal to \ncooperate was without any reasonable cause.  Tillery v. Alma Sch. Dist., \n2022 Ark. App. 425. \n\nMOODY- G409071  7\n  \n \n \nAt her initial vocational rehabilitation assessment with Keondra \nHampton, MS, CRC on July 19, 2022, the claimant expressed doubts about \nreturning to work.  She informed Ms. Hampton “she was unsure if she was \nready to return to work . . . She stated she is hesitant to perform job duties \nthat require physical demand of light or greater.” (Resp. Ex. 2, P. 15). “Miss \nMoody declined the idea of retraining for another career and stated she is \nclose to retirement and does not wish to retrain and deepen her financial \ndebt.” (Resp. Ex. 2, Pp. 15-16).  \nLater, at a January 18, 2023 meeting with Ms. Hampton, the claimant \nconfirmed that she had no interest in returning to the workforce.  She stated \nshe believes she is not capable of returning to work due to the constant pain \nand discomfort.  She said, “I do not want to waste your time but if you have \nto search for work on my behalf, I will be compliant.”  Ms. Moody reported \nshe is not interested in obtaining employment at a reduced wage of $22.50/ \nhour .  She also reported she does not believe she will be capable of going \nback to work and elects to discontinue vocational rehabilitation services at \nthis time.  (Resp. Ex. 2, P. 23). \nOn March 7, 2023, Ms. Hampton recommended closing the \nclaimant’s vocational rehabilitation file, stating that “[a]although she is \ncapable of working within the Light category of physical work demands, \n\nMOODY- G409071  8\n  \n \n \naccording to her FCE, Ms. Moody has elected to discontinue vocational \nrehabilitation services at this time.” Id. \nWhile it appears that the claimant believes it is sufficient by informing \nMs. Hampton that she would cooperate with vocational rehabilitation, “if \nforced to do so”, it is obvious that the claimant rejected any efforts made by \nMs. Hampton without reasonable cause.  While the claimant contends that \nthe pain resulting from her compensable injury rendered her unable to work \nin any capacity, she informed Keondra Hampton on three separate \noccasions that she was not ready or was not willing to take on new training, \ndespite being released on light duty restrictions after her 2022 Functional \nCapacity Evaluation.  For these reasons, it is clear that the claimant refused \nvocational rehabilitation and job placement assistance and is, therefore, not \nentitled to wage-loss disability benefits pursuant to Ark. Code Ann. § 11-9-\n505(b)(3).  \nb. The claimant’s education and experience show that the \nclaimant is capable of returning to work, but refuses to do \nso. \n \nAs stated above, in considering factors that may affect an employee's \nfuture earning capacity, the Commission considers the claimant's motivation \nto return to work, since a lack of interest or a negative attitude impedes the \nassessment of the claimant's loss of earning capacity.  Emerson Electric v. \nGaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).  The Commission may \n\nMOODY- G409071  9\n  \n \n \nalso consider other permanent disability factors such as the claimant's \nage, education, work experience, medical evidence and other matters \nreasonably expected to affect the worker's future earning power.  City of \nFayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).  These \nfactors are considered in Beal v. Fairfield Bay Cmty. Club, Inc., 2011 Ark. \nApp. 136 (2011) where the Court of Appeals stated: \nBeal further testified that he had worked all of his life but \nthat he has not returned to work because \"they are not \ngoing to let him back out there, as no doctor is going to \npass him on a physical and drug test and stuff.\" Beal is \nblind in his left eye, but admitted to having glaucoma \nbefore his injury.  According to Beal he does not feel that \nthere are any jobs he can perform and is now retired. The \nCommission disagreed and concluded that \"the evidence \nshows that [Beal] is clearly not motivated to return to any \nform of gainful employment\" and noted that Beal's lack of \nmotivation is a valid consideration in its denial of Beal's \nwage-loss disability claim. City of Fayetteville v. Guess, 10 \nArk. App. 313, 663 S.W.2d 946 (1984). \n \nIn a 2010 case considering wage-loss, the Court of Appeals affirmed \nthe Commission’s decision to deny wage-loss to a claimant who was 25 \nyears old and had not looked for any work outside of her previous job as a \ncake decorator or work within her restrictions. Morrison v. Confectionately \nYours, Inc., 2010 Ark. App. 687 (2010).  This claimant received a seven \npercent (7%) disability rating, but the Court noted that this claimant had not \nattempted to look for work within her restrictions and had low motivation to \nreturn to any work other than her previous job. Id.  The Commission found \n\nMOODY- G409071  10\n  \n \n \nthat the claimant developed skills as a cake decorator that would serve her \nwell in other lines of work. Id. \nHere, it has been established through the claimant’s statements to \nKeondra Hampton that she simply lacked the motivation to return to work. \nThis enough is sufficient to preclude her from receiving wage-loss benefits; \nhowever, the claimant has two college degrees, obtained with honors, and \nyears of experience working in an office environment. (Hrng. Tr., Pp. 21-22, \n24-25, 55-57; Resp. Ex. 2, P. 1). The claimant testified that these office \nduties included using a computer eight hours per day, maintaining records, \npreparing documents, and presenting documents to the court system.  \n(Hrng. Tr., Pp. 24-25, 56-59).  While the claimant testified that she has \ndifficulties using a computer due to her neck and pre-existing carpal tunnel \nsyndrome, she never sought a prescription for a standing desk. (Hrng. Tr., \nPp. 62-63).   \nThe facts in this case do not support a finding of wage-loss disability. \nAs has been seen in prior cases before the Commission and our Courts, a \nwell-educated claimant such as the claimant who has two college degrees \nwith an established history of skills that can be easily transferred to another \nfield is not entitled to wage-loss disability.  This is especially true when, in \nthis case, the claimant who is capable of working within the light category of \nphysical work demand pursuant to her FCE elected to discontinue vocational \n\nMOODY- G409071  11\n  \n \n \nrehabilitation services and job placement assistance just because she did \nnot feel she was capable of returning to work and was not interested in \nobtaining employment at a reduced rate of $22.50/ hour and would not be \ninterested in a job that paid less than she was earning before her injury. \n  Since the claimant refused to participate in or cooperate with job \nplacement assistance and elected to discontinue vocational rehabilitation \nservices, her claim for wage-loss disability is barred by Ark. Code Ann. § 11-\n9-515(b)(3). \nAccordingly, for the reasons set forth above, I must dissent from the \nmajority’s opinion. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":15093,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G409071 RUBY MOODY, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF COMMUNITY CORRECTIONS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER RESPONDENT","outcome":"affirmed","outcomeKeywords":["affirmed:1","granted:1","denied:1"],"injuryKeywords":["neck","back","cervical","lumbar","carpal tunnel"],"fetchedAt":"2026-05-19T22:29:46.052Z"},{"id":"full_commission-H101899-2024-01-10","awccNumber":"H101899","decisionDate":"2024-01-10","decisionYear":2024,"opinionType":"full_commission","claimantName":"Felicia Parker","employerName":"Uams","title":"PARKER VS. UAMS AWCC# H101899 JANUARY 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Parker_Felicia_H101899_20240110.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Parker_Felicia_H101899_20240110.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H101899  \n \nFELICIA PARKER, \nEMPLOYEE \n \nCLAIMANT \nUAMS,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JANUARY 10, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE SHEILA F. CAMPBELL, \nAttorney at Law, North Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nJuly 19, 2023.  The administrative law judge found that the claimant proved \nshe was entitled to additional medical treatment and additional temporary \ntotal disability benefits.  After reviewing the entire record de novo, the Full \nCommission reverses the administrative law judge’s opinion.  The Full \nCommission finds that the claimant did not prove she was entitled to \nadditional temporary total disability benefits or medical treatment.     \nI.  HISTORY \n\nPARKER - H101899  2\n  \n \n \n The testimony of Felicia Parker, now age 53, indicated that she \nbecame employed as a Certified Nursing Assistant with the respondents, \nUniversity of Arkansas for Medical Sciences, in about 2021.  The claimant \ntestified that she performed “house calls” for the respondent-employer.  The \nclaimant testified that this employment position required her to carry \nmedical equipment, occasionally climb stairs, and clean motor vehicles.     \nThe parties stipulated that the employee-employer-carrier \nrelationship existed at all pertinent times, including February 4, 2021.  The \nclaimant testified on direct examination: \n Q.  And what was the date of the injury? \n A.  February the 4, 2021, if I’m not mistaken. \n Q.  And can you tell us how the accident happened? \nA.  I was leaving one client’s house and I was on my way to \nthe next client, and I was sitting at a stoplight at, I guess, \nthat’s Percy Machin and Pershing.  I was sitting there – there \nwas a North Little Rock Police officer in front of me and as the \nlight began to change while we were sitting there, I heard a \nscreeching and when I looked to my left, you know, and I – \nand by the time I could look up in the mirror, the young lady \nhad plowed into me while we were sitting still....When she \nplowed into me, it pushed me hard, so my knees hit the – the \npanel of the car and instantly I had a headache and the – my \nneck was hurting.   \n \n The parties stipulated that the claimant “sustained compensable \ninjuries to her head, neck, and back” as a result of the February 4, 2021 \nmotor vehicle accident.  According to the record, the claimant received \nemergency medical treatment on February 4, 2021:  “Patient presents with \n • Motor Vehicle Crash....Injury location:  Head/neck and torso.”   \n\nPARKER - H101899  3\n  \n \n \n An ED Provider noted the following on February 4, 2021: \n50 y/o F with hx of DM, HTN, CKD who presented after a \nMVC with lateral neck and diffuse lower back pain.  Was the \nrestrained driver at a stop when she was rear ended.  Was \nambulatory since accident.  Was well appearing in no acute \ndistress.  Head AT, NC.  Normal phonation.  No obvious neck \ndeformity, swelling or injury.  Normal WOB.  A&O.  Normal \nspeech.  No acute findings on xrays.  Supportive treatment \nwith PCP follow up.   \nImpression: \n1.  MVC (motor vehicle collision), initial encounter Acute. \n2.  Cervical strain, acute, initial encounter Acute. \n3.  Low back strain, initial encounter Acute.   \n \nAn x-ray of the claimant’s lumbar spine on February 4, 2021 showed \n“No acute fracture.  Scoliosis and multilevel degenerative disc disease and \npredominantly lumbar facet arthropathy.”    \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on February 5, 2021.  The ACCIDENT INFORMATION section of \nthe Form AR-N averred that the claimant injured her “Back/neck/R. Knee” in \nan accident occurring February 4, 2021.   \n The respondents contended that they paid temporary total disability \nbenefits beginning February 5, 2021.  A physical therapist noted on \nFebruary 9, 2021, “Per verbal authorization from Tiphanie Nelson, WC \nAdjuster, patient is allowed 6 Physical Therapy visits; additional visits will \nrequire prior authorization.”   \n The claimant saw Dr. William E. Ackerman, III on February 22, 2021:  \n“Pain in the lumbar spine and multiple joints.  She was involved in an MVA \n\nPARKER - H101899  4\n  \n \n \ntwo days ago.  She reports that her vehicle was stopped when another \nvehicle struck her from behind, and she now has pain in the cervical spine.  \nShe is now under the care of an orthopedic surgeon at UAMS....She has \nhad the onset of increased neck and back pain since her MVA and last \nvisit....It is my opinion that the patient has sufficient pathology to warrant \ncontinuation of pharmacologic management....I will refill the patient’s \nhydrocodone as previously prescribed.”   \n Dr. Michael D. Cassat attested on February 23, 2021, “We will get an \nMRI of her thoracic and lumbar spine prior to any additional physical \ntherapy, follow up with me after.  Her work restrictions will be no lifting, \npushing, pulling greater than 10 lb, no flexion/extension.” \n The record indicates that an MRI of the claimant’s thoracic and \nlumbar spine was taken on or about February 24, 2021 with the following \nimpression: \n1.  Multilevel degenerative disc disease throughout the \nthoracic spine with disc protrusion superimposed at T9-10 \nand to a lesser degree T8-9. \n2.  Inferiorly directed left paracentral disc protrusion at L1-2 \nwith abnormal soft tissue in the ventral epidural space with \nsome compression of the left L2 nerve root within the \nlateral recess. \n3.  Advanced disc degeneration changes at L4-5 and L5-S1 \nwith facet arthropathy.  Asymmetric left-sided foraminal \nstenosis at L5-S1.   \n4.  No intrinsic cord abnormality.   \n5.  Incidental hemangioma at T6 vertebra.   \n \n The claimant followed up with Dr. Cassat on March 1, 2021: \n\nPARKER - H101899  5\n  \n \n \nShe returns today to discuss her thoracic and lumbar MRI.  \n[She] continues to have significant cervical spine pain, low \nback pain, some radicular leg pain.  We reviewed her images \nwhich show multilevel degenerative change with multiple \nherniations, areas of central and foraminal stenosis, areas of \nfacet hypertrophy.  We discussed that the acuity of several of \nthese discs is unknown, we will ask Radiology to compare to \nprevious CT.  Certainly she reports a significant symptom free \nperiod since her last period of low back pain.  Her symptoms \nstarted shortly after her motor vehicle accident, from a \ncausation standpoint this is greater than 51% likely to be \ndirectly related.  We will plan on starting physical therapy, we \ndiscussed her existing pathology and different treatment \noptions.  She will follow up with me in 6 weeks, sooner if \nneeded.... \nHer work restrictions will be no lifting, pushing, pulling greater \nthan 10 lb.  She can change positions from seated to standing \nas needed.   \n \n Dr. Cassat assessed “Lumbar strain, initial encounter” and “Cervical \nstrain, acute, initial encounter.”  Dr. Cassat ordered “Ambulatory Referral to \nPhysical Therapy.”   \n The record indicates that the claimant received a series of physical \ntherapy visits beginning March 8, 2021.  The claimant followed up with Dr. \nCassat on March 15, 2021: \nShe returns today to discuss her ongoing neck and back pain.  \nShe has only attended 2 physical therapy visits as of yet.  She \ncontinues to have significant pain in both areas.  She reports \nsignificant limitations in ability to perform activities secondary \nto pain.... \nWe had a long discussion today regarding her pathology and \nreturn to activity.  We discussed that her work restrictions will \nremain the same.  I asked that she increase her physical \ntherapy to 3 times per week.  Try and increase her activity at \nhome as well.  We discussed that if physical therapy fails to \nimprove her symptoms then we will likely arrange for epidural \n\nPARKER - H101899  6\n  \n \n \nsteroid injections and if that fails she may need surgical \nconsultation.  Follow up with me after physical therapy.   \n \n Dr. Cassat reported on March 15, 2021: \nIt is my medical opinion that Ms. Felicia Parker may return to \nwork, light duty with the following restrictions, no lifting, \npushing, pulling greater than 10 lb, no flexion/extension of \nback.  Please allow her to change positions from seated to \nstanding, as needed.   \n \n Tiphanie Nelson, WC Claims Specialist, e-mailed Nancy Hall on \nMarch 16, 2021: \nCan these restrictions be accommodated?  Please send me a \ncopy of her job description so I can send to Dr. Cassat, there’s \nbeen some confusion of her returning to work and I spoke with \nDr. Cassat and he said that Ms. Parker can not go back in the \nfield right now and that if these restrictions can not be \naccommodated, she must remain off work.  Thank you.   \n \n Tiphanie Nelson e-mailed Donna S. Curtis, a case manager for the \nrespondents, on March 22, 2021: \n  Hey Donna –  \nI’m having issues with this.  Usually if the doctor gives the \nclaimant restrictions and they can not be accommodated then \nthe claimant is to remain off work.  Apparently they are telling \nher that after her FMLA is up end of today she has to return \nback to work tomorrow.  I asked if they can accommodate \nthese restrictions and I haven’t received an answer from Mrs. \nDaily.  I spoke with Nancy and she said that they need further \ndetailed restrictions saying what she can and can not do.  Dr. \nCassat called me himself and stated that the (sic) never really \ntakes the patient’s off work they always give them restrictions \nbut there’s no way that she can return to work going out in the \nfield lifting patients and he’s never had to give any further \ndetailed restrictions.  He said that if they can not \naccommodate these restrictions that she’s on that she can not \ndo her regular job.  The claimant seems to think that they can \n\nPARKER - H101899  7\n  \n \n \nfire her if she does not return to work and you know that would \nnot be good if they did that.  That will open up some legal \nproblems.  Can you help me with this.   \n \n Donna S. Curtis corresponded with Tiphanie Nelson and several \nother individuals on March 22, 2021: \n  Hello Everyone, \nI just got off the phone with Melinda regarding Ms. Parker.  \nMelinda is calling Ms. Parker now to tell her that she can \nreturn to work tomorrow at her usual time and in her “home \ndepartment.”  Melinda and I also discussed that, if there is not \nenough for her to do in her deskwork on her home unit that we \ncan share her time with her home department and another \ndepartment, such as the POEM clinic.  (Melissa Vandiver is \noff today so I cannot discuss the possibility of sharing or \nmoving her to POEM during her time of restrictions but I will \ndo that tomorrow when Melissa returns.)   \nSo as of now, Ms. Parker will return to work with her \nrestrictions tomorrow.  I will also call Ms. Parker shortly just to \nreassure her that we will work with her as she works with her \nrestrictions.   \nThanks to everyone for helping out with assisting Ms. Parker \nand Melinda in bringing her back to work.   \n \n The claimant corresponded with her supervisor, Melinda A. Daily, \nand several other individuals on March 22, 2021: \nHello everyone!  Its obvious that a lot of conversations have \nbeen going, but I just want to be open and frank about my \ncurrent situation.  I’m in constant pain everyday on a scale of \n8 out of 10.  I continue to have back pain and spasms, neck \npain, numbness and tingles in my hands, fingers and down \nmy legs.  My anxiety is at an all time high and I’m very \nfrustrated about the whole situation and process... \n \nMelinda, \nI’m fully aware that my FMLA periods end today, but I have \ndecided not to return to work on tomorrow.  There’s no way \nthat I can return tomorrow taking my current meds for pain \n\nPARKER - H101899  8\n  \n \n \nand muscle spasms.  I have reached out to FMLA/Standard \nfor an extension or help with this matter since all my time has \nbeen exhausted.  I apologize for any inconvenience, but my \nfirst priority at this time it to take care of myself with the help of \nPT and medication to control my pain.  Its evident that team \nUAMS is working on its behalf, with no regards to my pain or \nmobility but only the push for me to return to work ASAP.  \nPlease let me know if there’s anything you need from me at \nthis time.   \nI’m not really sure what my options are at this point, but I have \nspoken briefly with Ms Curtis and still awaiting for Ms Hall call \nback. \nHopefully, I will be able to return here in the near future! \n \nDr. Cassat, \nHR stated that they have received everything from you that \nwas needed, but according to your nurse she stated that she \nstill has the paperwork.  She also stated that since I’m on a \npain contract with Dr. William Ackerman he may need to fill \nout the paperwork that Standard will be reaching out to you for \nthe claim I submitted today.  Thanks! \n \nMs Nelson, \nStandard will be reaching out to you as well.  I don’t know how \nWorkmans Comp and Standard works but hopefully you guys \nwill help me with the do’s and dont’s to help advocate on my \nbehalf.  Thanks in advance for your assistance.   \n \n Tiphanie Nelson informed the claimant on March 22, 2021: \nOn the workers comp injury – We have to go by what Dr. \nCassat says.  He has you on restrictions that UAMS are \nwilling to accommodate.  The medication that Dr. Ackerman \nhas you on is not related to the Workers Comp injury and you \nwere obviously on before your work injury.  We can not \ncontinue to pay TTD based on his prescriptions.   \n \n The respondents contended that they paid temporary total disability \nbenefits until March 22, 2021, “when she was released to work with \n\nPARKER - H101899  9\n  \n \n \nrestrictions by her treating physician, which her employer could \naccommodate and the claimant in fact returned to work for her employer.” \n Donna S. Curtis e-mailed the claimant and several other individuals \non March 23, 2021: \n  Good morning everyone, \nI got a call from Melissa yesterday evening, even though she \nwas off for the day.  She did confirm that we are happy to \nhave you, Felicia, work in our POEM clinic while you have \nyour restrictions.  So when things are worked out just let me \nknow and Melissa will be working with us all. \nThank you all,  \nDonna \n \n Deborah Davis, PT noted on March 23, 2021, “lifting restrictions \nincluding no lifting over 10lbs....Hard time the last couple of days.  Back to \nwork light duty this week.  Can’t tell I am making any progress....Advised \nshe try water therapy at our Spine Center to see if buoyancy of water will \nassist her mobility.” \n The claimant testified on direct examination: \n  Q.  And so when did you go back to work? \nA.  It was in April, I believe.  I don’t remember the exact date, \nbut I was in house calls.  I was on light duty.  I couldn’t do \nanything that I normally would do, so it kind of put a strain on \nour department.  So my supervisor talked with Ms. Hutts, and \nthey came up with the position in the Thomas and Lyon \nLongevity Clinic for me to become a phone MA where I would \nsit and do the phone calls – phone calls, refills and \nmedications.  Well, refills – just answer the phones and do the \nrefills – fax refills and everything.  She said that it was a \nposition that I would – that I would go to to help some other \nyoung ladies to work.  But when I got there, they moved \n\nPARKER - H101899  10\n  \n \n \neveryone else out and I was the only one there doing all the \nwork.   \nQ.  And so did that job require you to do a significant amount \nof walking? \nA.  No.  I was stable, but the work was overwhelming, and I \nwas in a lot of pain.... \n \n The respondents’ attorney cross-examined the claimant: \n  Q.  I heard you testify about going back to work.   \n  A.  Yes. \nQ.  You understood that you had been getting some \nrestrictions and your employer was ready to accommodate \nyou.  Was that your understanding? \nA.  Yes.   \nQ.  Okay.  And you did actually go back to work? \nA.  I did.   \n \n The claimant followed up with Dr. Cassat on April 12, 2021: \nShe returns today for recheck.  She reports overall \nimprovement in her neck and low back pain but there is still \npersistent.  She reports that she is able to do more but is not \nable to return to her baseline activities without discomfort.  \nShe reports that physical therapy has been helping but she \nfeels that she has recently plateaued and is willing to \ninvestigate additional treatment options....at this point we \ndiscussed continuing her work restrictions as they have been, \nobtaining a cervical and lumbar spine MRI for possible \nintervention.  She can continue with her physical therapy until \nthat time.  Follow up with me after imaging. \n \n Dr. Cassat diagnosed “Cervical strain, acute, initial encounter” and \n“Lumbar strain, initial encounter.”     \n Amelia R. Ray, APRN and Dr. Samuel Clay Overly saw the claimant \nat UAMS Orthopedic Spine Clinic on July 2, 2021: \nThe patient is a 50 y.o. female who presents to the clinic \ntoday as a new patient for evaluation of neck pain and back \n\nPARKER - H101899  11\n  \n \n \npain.  Her back pain bothers her worse.  This started February \n2021 after she was involved in a motor vehicle accident.  She \nreports that she has low back pain especially with bending, \nwalking or doing dishes....She previously has tried physical \ntherapy and aqua therapy which did help a lot with her \npain....Her neck pain was worse at the time of the accident \nbut has since improved significantly.... \nImaging:  I reviewed all imaging studies myself. \nCervical and lumbar MRI \nIMPRESSION:   \n1.  Degenerative disc disease with spondylosis at C5-6.  Right \nparacentral disc osteophyte is present.  No central canal \nstenosis. \n2.  Multilevel advanced disc degeneration throughout the \nlumbar spine without stenosis.  Neural foraminal stenosis \nleft greater than right at L5-S1. \n3.  No acute fractures demonstrated.   \n \nAssessment/Plan: \n50-year-old female with a BMI of 65 presenting to the clinic for \nchronic low back pain in absence of radiculopathy as well as \ncervical neck pain in absence of radiculopathy or myelopathy.  \nThe patient was involved in a motor vehicle accident February \n21.  The time of that accident, she was having neck pain \nassociated with bilateral shoulder pain.  This was likely due to \nthe disc herniation seen at C5-6.  However, the pain has \ncompletely resolved.  Her main issue is low back pain which is \nlikely mechanical axial low back pain secondary to the \nmultilevel degenerative disc disease seen throughout the \nlumbar spine as well as her weight.  At this point in time, she \nis not a surgical candidate for this reason.  There is no canal \nstenosis seen in the lumbar spine.  There is some foraminal \nstenosis on the left at L5-S1 however she is not presenting \nwith true radicular type symptoms in his leg.  For treatment, \nwe have offered her a radiofrequency ablation of L4-5 were \n(sic) she has quite a bit of joint arthritis.  This will likely help \nwith a lot of her back pain especially when she is bending \nover.  We have recommended physical therapy targeting the \ncervical and lumbar spine.  We will write for naproxen for pain \nrelief.  She will follow up via telemedicine with me in 6 weeks \nto see how the RFA went and how physical therapy is going.  \nThe patient is on board with this plan.   \n\nPARKER - H101899  12\n  \n \n \n \n Dr. Gregory L. Smith performed bilateral lumbar medial nerve branch \nblocks on August 2, 2021 and September 8, 2021.  The claimant testified \nregarding Dr. Smith’s treatment, “I – it wasn’t hurting as bad as it was.  I \nhad a temporary relief – some relief.  But then after a while, it wore off.”   \n The claimant testified on direct examination: \nQ.  When did you stop actually working this phone job as an \nMA? \nA.  That was April the 7\nth\n – no February 7, 2022.  February 7, \n2022.   \nQ.  And what precipitated you leave an employment on \nFebruary 7, 2022.   \nA.  Because I was in a lot of pain, and I just couldn’t – I \ncouldn’t do that job anymore....I was just in a lot of pain.  And \nso that’s the reason why I stopped working and I was off to \nget ready to have my surgery.   \n \n The claimant testified that she underwent bariatric weight-loss \nsurgery on April 1, 2022.     \n The claimant began treating with Dr. Ahmed Ghaleb on April 19, \n2022:  “Pleasant patient presents for the evaluation and management of \nchronic pain.”  Dr. Ghaleb’s assessment included “Lumbosacral spondylosis \nwithout myelopathy” and “Cervical spondylosis without myelopathy.”  Dr. \nGhaleb prescribed Nortriptyline, Tizanidine, and Hydrocodone.   \n Dr. Ghaleb performed “ESC Lumbar Medial Branch Nerves \nNeurotomy” on May 5, 2022.   \n\nPARKER - H101899  13\n  \n \n \n The record contains a Change of Physician Order dated June 11, \n2022:  “A change of physician is hereby approved by the Arkansas \nWorkers’ Compensation Commission for Felicia Parker to change from Dr. \nMichael Cassat to Dr. Ahmed Ghaleb[.]  \n The claimant returned to Dr. Ghaleb on July 19, 2022: \nThe patient complains of pain in the BACK, NECK, KNEES.  \nThe patient has been experiencing this pain for the last \nseveral years.  She reports onset of pain gradually over time.  \nThe patient describes her pain as constant with intermittent \nflare ups.  The pain is cramping, numbing, pressure like, \nsharp and shooting.  The pain radiates to the bilateral lower \nextremity....Pain medication improves quality of life.... \nPatient was advised to maintain normal activities and advised \nto avoid prolonged bed rest and focus on improving the \nactivity of daily living.... \n \n Dr. Ghaleb prescribed Nortriptyline, Methocarbamol, and \nHydrocodone, and instructed the claimant to follow up in one month. \n The claimant’s testimony indicated that the respondent-carrier paid \nfor the claimant’s visit with Dr. Ghaleb occurring July 19, 2022, but that the \nrespondents would not authorize additional visits with Dr. Ghaleb.        \n A pre-hearing order was filed on October 6, 2022.  The claimant \ncontended, “Claimant contends that she sustained a compensable injury to \nher lumbar spine, cervical spine and thoracic spine and knees in the course \nand scope of her employment.  She is entitled to additional TTD from \n3/20/21 through a date yet to be determined.  Claimant further contends \nthat she is entitled to additional medical treatment, a change of physician \n\nPARKER - H101899  14\n  \n \n \nrehabilitation, medical expenses, medical mileage, and attorney’s fees in \nthis claim.”   \n The parties stipulated that the respondents “have controverted the \nadditional benefits sought herein, inclusive of the Claimant’s alleged \nbilateral knee injuries of February 4, 2021.”  The respondents contended, \n“The Respondent contends that the claimant reported having an injury to \nher back neck and right knee occurring February 4, 2021 in a motor vehicle \naccident.  Respondent accepted the head neck and back symptoms as an \naggravation of the claimant’s preexisting condition, and provided benefits to \nthe claimant for this aggravation.” \n The respondents contended, “Respondent has provided medical \ntreatment reasonable and necessary for the compensable injury, including \nconservative treatment with Dr. Michael Cassat.  Dr. Cassat ordered MRI \nstudies of the cervical and lumbar, and referred the claimant for a surgical \nevaluation by Dr. Samuel Overly, who saw her July 2, 2021 noted her \ncervical pain resolved, and did not recommend surgery on her low back.  \nThe claimant was provided bilateral L3 to L5 medial nerve branch blocks to \nL4/L5, L5/S1 facets on August 2, 2021 and September 8, 2021 by Dr. \nGregory Smith.  The claimant used her one time Change of Physician to \nsee Dr. Ghaleb July 19, 2022.  Respondent paid for the visit, and the \nclaimant cannot be entitled to another Change of Physician.  The claimant \n\nPARKER - H101899  15\n  \n \n \nseeks pain management with Dr. Ghaleb, but she was already under a pain \nmanagement contract with Dr. Ackerman at the time of injury for her chronic \nand preexisting conditions.  Respondent contends that the claimant has \npreexisting condition to her spine and knees for which she was receiving \ntreatment including chronic pain management with Dr. Ackerman, and \npreparing for bariatric surgery.  The Respondent contends that the claimant \ncannot establish her need for pain management is reasonable and \nnecessary for or causally related to a work injury occurring February 4, \n2022.  Respondent contends that the claimant cannot establish that her \nneed for treatment of her knee(s) is reasonable and necessary for or \ncausally related to a work injury occurring February 4, 2022.”   \n The respondents contended, “Respondent paid TTD benefits to the \nclaimant while she was in a healing period and unable to work, from \nFebruary 5, 2021 until March 22, 2021 when she was released to work with \nrestrictions by her treating physician, which her employer could \naccommodate and the claimant in fact returned to work for her employer.” \n The respondents contended, “Respondent contends that the \nclaimant has been provided medical treatment reasonable and necessary \nfor and causally related to the work injury, and has been paid the disability \nbenefits she is owed to date.  The Respondents reserve the right to raise \n\nPARKER - H101899  16\n  \n \n \nadditional contentions, or to modify those stated herein, pending the \ncompletion of discovery.” \n The parties agreed to litigate the following issues: \n1.  Whether the Claimant is entitled to additional reasonably \nnecessary medical care in relation to her compensable \nhead, neck, and back injuries of February 4, 2021; \n2.  Whether the Claimant sustained compensable bilateral \nknee injuries on February 4, 2021, and is entitled to \nappropriate benefits associated therewith; \n3.  Whether the Claimant is entitled to additional temporary \ntotal disability benefits from March 23, 2021 through a date \nyet to be determined, in relation to her compensable head, \nneck, and back injuries of February 4, 2021; \n4.  Whether the Claimant provided sufficient notice of her \nalleged left knee injury of February 4, 2021, in accordance \nwith Ark. Code Ann. §11-9-701; and, \n5. Attorney’s fees with respect to controverted indemnity \nbenefits.   \n \nAfter a hearing, an administrative law judge filed an opinion on July \n19, 2023.  The administrative law judge found, among other things, that the \nclaimant “did not sustain a compensable bilateral knee injury on February 4, \n2021.”  The claimant does not appeal that finding.  The administrative law \njudge found that the claimant was “entitled to additional medical treatment \nfor her head, neck, and back injuries of February 4, 2021.”  The \nadministrative law judge also found that the claimant proved she was \nentitled to temporary total disability benefits “from March 23, 2021, through \na date to be determined.”  The respondents appeal those findings to the \nFull Commission.    \n\nPARKER - H101899  17\n  \n \n \nII.  ADJUDICATION \nA.  Temporary Total Disability \nTemporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \nHwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing \nperiod” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \ncontinues until the employee is as far restored as the permanent character \nof the injury will permit, and if the underlying condition causing the disability \nhas become stable and nothing further in the way of treatment will improve \nthat condition, the healing period has ended.  Harvest Foods v. Washam, \n52 Ark. App. 72, 914 S.W.2d 776 (1996).  The claimant has the burden of \nproving, by a preponderance of the evidence, that she remains within a \nhealing period.  Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 \nS.W.3d 591 (2008).  Preponderance of the evidence means the evidence \nhaving greater weight or convincing force.  Metropolitan Nat’l Bank v. La \nSher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).  The determination \nof when the healing period has ended is a question of fact for the \nCommission.  Carroll Gen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d \n878 (1996). \n\nPARKER - H101899  18\n  \n \n \nIn workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The determination of the credibility and weight to be given a \nwitness’s testimony is within the sole province of the Commission.  Murphy \nv. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007).  The \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony it deems worthy of belief.  Farmers Co-op v. Biles, \n77 Ark. App. 1, 69 S.W.3d 899 (2002).  An administrative law judge’s \nfindings with regard to credibility are not binding on the Full Commission.  \nRoberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  The \nFull Commission has the duty to decide the case de novo and we are not \nbound by the characterization of evidence adopted by an administrative law \njudge.  Tyson Foods, Inc. v. Watkins, 37 Ark. App. 230, 792 S.W.2d 348 \n(1990). \nAn administrative law judge found in the present matter, “4.  The \nClaimant is entitled to additional temporary total disability benefits from \nMarch 23, 2021, through a date to be determined.”  The Full Commission \ndoes not affirm this finding.  The parties stipulated that the claimant \n“sustained compensable injuries to her head, neck, and back” as the result \nof a motor vehicle accident occurring February 4, 2021.  An emergency \n\nPARKER - H101899  19\n  \n \n \nphysician’s impression on February 4, 2021 included “Cervical strain” and \n“Low back strain.”  An x-ray on February 4, 2021 showed that the claimant \nsuffered from degenerative disc disease in her lumbar spine.  The \nrespondents paid temporary total disability benefits beginning February 5, \n2021.  The claimant was treated conservatively and was provided physical \ntherapy.  Dr. Cassat assigned work restrictions beginning February 23, \n2021.  An MRI on February 24, 2021 showed degenerative disc disease in \nthe claimant’s thoracic and lumbar spine.     \nDr. Cassat assessed “Lumbar strain” and “Cervical strain” on March \n1, 2021.  As the Full Commission has noted supra, Dr. Cassat reported on \nMarch 15, 2021, “It is my medical opinion that Ms. Felicia Parker may return \nto work, light duty with the following restrictions, no lifting, pushing, pulling \ngreater than 10 lb, no flexion/extension of back.  Please allow her to change \npositions from seated to standing, as needed.”  The subsequent \ncorrespondence of record indicates that the respondent-employer in good \nfaith accommodated the work restrictions assigned by Dr. Cassat.  The \nrespondents allowed the claimant to return to restricted work in compliance \nwith Dr. Cassat’s restrictions.  The respondent-carrier paid temporary total \ndisability benefits until March 22, 2021.  In order to prove that she was \nentitled to additional temporary total disability benefits, the claimant was \nrequired to prove that she was totally incapacitated from earning wages, \n\nPARKER - H101899  20\n  \n \n \nwhile she remained within a healing period.  See Breshears, supra.  The \nevidence of record in the present matter does not demonstrate that the \nclaimant was totally incapacitated from earning wages at any time after \nMarch 22, 2021, following Dr. Cassat’s release to restricted work duty on \nMarch 15, 2021.  The Full Commission therefore finds that the claimant did \nnot prove she was entitled to temporary total disability benefits after March \n22, 2021. \nIn addition, the Full Commission finds that the claimant did not \nremain within a healing period for her compensable cervical strain or lumbar \nstrain beyond July 2, 2021.  Amelia Ray, APRN and Dr. Overly noted on \nJuly 2, 2021 that the claimant suffered with degenerative disc disease in her \ncervical and lumbar spine.  Dr. Overly reported, however, that the \nclaimant’s cervical pain “has completely resolved.”  The record therefore \nshows that the claimant reached the end of the healing period for her \ncervical strain no later than July 2, 2021.  Dr. Overly reported with regard to \nthe claimant’s low back or lumbar spine, “Her main issue is low back pain \nwhich is likely mechanical axial low back pain secondary to the multilevel \ndegenerative disc disease seen throughout the lumbar spine as well as her \nweight.”  Dr. Overly did not opine that the claimant continued to suffer from \nthe effects of a lumbar strain. \n\nPARKER - H101899  21\n  \n \n \nThe evidence demonstrates that the claimant sustained a \ncompensable cervical and lumbar strain resulting from the work-related \nmotor vehicle accident which occurred on February 4, 2021.  The Full \nCommission finds that the claimant reached the end of the healing period \nfor her compensable cervical and lumbar strain no later than July 2, 2021.  \nTemporary total disability benefits cannot be awarded after the healing \nperiod has ended.  Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 \nS.W.2d 661 (1987).  Persistent pain does not extend an employee’s healing \nperiod, provided that the underlying condition has stabilized.  Mad Butcher, \nInc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  The record does \nnot show that the claimant reentered a healing period at any time after July \n2, 2021.  The claimant did not prove that she was entitled to additional \ntemporary total disability benefits after March 22, 2021, because she was \nno longer totally incapacitated from earning wages after that date.   \nB.   Medical Treatment \nThe employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2002).  It is the \n\nPARKER - H101899  22\n  \n \n \nCommission’s duty to translate the evidence of record into findings of fact.  \nGencorp Polymer Prods. v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 \n(1991).  It is also within the Commission’s province to weigh all of the \nmedical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  What \nconstitutes reasonably necessary medical treatment is a question of fact for \nthe Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 \nS.W.2d 750 (1984). \nAn administrative law judge found in the present matter, “3.  The \nclaimant is entitled to additional medical treatment for her head, neck, and \nback injuries of February 4, 2021.”  The Full Commission does not affirm \nthis finding.  As we have discussed at length, the parties stipulated that the \nclaimant “sustained compensable injuries to her head, neck, and back” as \nthe result of a work-related motor vehicle accident occurring February 4, \n2021.  The evidence of record actually does not demonstrate that the \nclaimant sustained a compensable injury to her head, and there are no \ntreatment recommendations of record related to the claimant’s head. \nHowever, the claimant sustained a compensable cervical strain and \nlower back strain as a result of the accidental injury occurring February 4, \n2021.  The claimant was treated conservatively, which treatment included \nphysical therapy and injections.  There are no credible recommendations of \n\nPARKER - H101899  23\n  \n \n \nrecord indicating that the claimant is a candidate for surgery as a result of \nthe February 4, 2021 compensable injury.  The Full Commission has \ndetermined supra that the claimant reached the end of the healing period \nfor her compensable injuries no later than July 2, 2021.  We recognize that \na claimant may be entitled to ongoing medical treatment after the healing \nperiod has ended, if the medical treatment is geared toward management of \nthe claimant’s injury.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, \n184 S.W.3d 31 (2004).  Such services can include diagnosing the nature \nand extent of the compensable injury, reducing or alleviating symptoms \nresulting from the compensable injury, maintaining the level of healing \nachieved, or preventing further deterioration of the damage produced by the \ncompensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 \nS.W.2d 593 (1995).  A claimant is not required to furnish objective medical \nevidence of her continued need for medical treatment.  Castleberry v. Elite \nLamp Co., 69 Ark. App. 359, 13 S.W.3d 211 (2000). \nIn the present matter, however, the evidence does not demonstrate \nthat treatment provided after July 2, 2021 was reasonably necessary in \nconnection with the compensable injury occurring February 4, 2021.  \nInstead, the record shows that such treatment was related to the claimant’s \npre-existing degenerative condition rather than a cervical or lumbar strain.  \nOn June 11, 2022, the claimant received a Change of Physician Order from \n\nPARKER - H101899  24\n  \n \n \nDr. Cassat to Dr. Ghaleb.  When an employee has exercised her absolute, \nstatutory right to a one-time change of physician, the respondents must pay \nfor the initial visit to the new physician in order to fulfill their obligation to \nprovide reasonably necessary medical treatment.  Wal-Mart Stores, Inc. v. \nBrown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  The record indicates that \nthe respondent-carrier, in accordance with Wal-Mart Stores, Inc. v. Brown, \nin fact paid for the claimant’s visit with Dr. Ghaleb which took place on July \n19, 2022 following the Change of Physician Order.   \nThe employee has the burden of proving by a preponderance of the \nevidence that additional medical treatment is reasonably necessary.  Stone, \nsupra.  In the present matter, the Full Commission finds that the claimant \ndid not prove additional medical treatment was reasonably necessary in \nconnection with the compensable injury.  The evidence demonstrates that \nthe claimant suffered from pre-existing degenerative disc disease in her \ncervical and lumbar spine.  The claimant sustained a work-related motor \nvehicle accident on February 4, 2021 which resulted in a cervical strain and \nlumbar strain.  The claimant received physical therapy and injections, and \nshe reached the end of the healing period for her compensable cervical and \nlumbar strain no later than July 2, 2021.  There is no credible medical report \nof record indicating that the claimant is a candidate for surgery as a result of \nthe injury occurring February 4, 2021.  Following the statutory change of \n\nPARKER - H101899  25\n  \n \n \nphysician to Dr. Ghaleb, the respondents fulfilled their obligation in \naccordance with Wal-Mart Stores, Inc., supra.  The evidence does not \ndemonstrate that any additional treatment with Dr. Ghaleb after July 19, \n2022, including his prescriptions of Nortriptyline, Methocarbamol, or \nHydrocodone, are reasonably necessary in connection with the February 4, \n2021 compensable injury.  \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that she \nwas entitled to additional temporary total disability benefits or additional \nmedical treatment.  The Full Commission therefore reverses the \nadministrative law judge’s opinion, and this claim is respectfully denied and \ndismissed.   \nIT IS SO ORDERED. \n       \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \nAfter conducting a de novo review of this claim, I dissent in part and \nconcur in part with the majority.  I dissent as to the finding that Claimant failed \n\nPARKER - H101899  26\n  \n \n \nto prove by a preponderance of the evidence that she is entitled to additional \nmedical treatment for her lower back, but I concur as to the finding that the \nClaimant did not meet her burden of proof that she was entitled to additional \ntemporary total disability and other medical treatment. \nTo  show  entitlement  to  additional  medical  treatment,  Claimant  must \nprove  that  the  treatment  is  reasonably  necessary  in  connection  with  her \ncompensable  injury.  Ark.  Code  Ann.  §11-9-508(a)(1).  What  constitutes \nreasonable and necessary treatment under this section is a question of fact \nfor  the  commission.   Wright  Contracting  Co.  v.  Randall,  12  Ark.  App.  358, \n676 S.W.2d 750. \nThe  parties  stipulated  that  the  Claimant  sustained  a  compensable \ninjury to her head, neck and back as a result of the work-related motor vehicle \naccident that occurred on February 4, 2021.  Approximately six months prior \nto  the  accident,  Claimant  underwent  a  CT  that  showed  “multilevel  facet \narthrosis between L2 and S1 bilaterally.”   After the motor vehicle accident, \nClaimant underwent an MRI at L2-S1 region which showed a “left paracentral \ndisc protrusion” and compression of the nerve root.    This  is  an  identifiable \nchange in Claimant’s condition.    Dr.  Ghaleb  has  recommended  Claimant \nundergo a repeat lumbar radiofrequency ablation as a result of the Claimant’s \ncompensable   injury.  Therefore,   I   find   that   the   recommended  medical \nprocedure of lumbar radiofrequency ablation to be reasonable and necessary \n\nPARKER - H101899  27\n  \n \n \nand  that  Claimant  has  proved  by  a  preponderance  of  the  evidence  to  be \nentitled to additional medical treatment in that form. \nFor the foregoing reasons, I dissent from the majority opinion.  \n \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":42391,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H101899 FELICIA PARKER, EMPLOYEE CLAIMANT UAMS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 10, 2024","outcome":"granted","outcomeKeywords":["reversed:1","dismissed:1","granted:4","denied:2"],"injuryKeywords":["neck","back","cervical","strain","lumbar","fracture","knee","thoracic"],"fetchedAt":"2026-05-19T22:29:46.071Z"},{"id":"alj-H300192-2024-01-10","awccNumber":"H300192","decisionDate":"2024-01-10","decisionYear":2024,"opinionType":"alj","claimantName":"Ronnie Corter","employerName":"Commercial Audio Systems, Inc","title":"CORTER VS. COMMERCIAL AUDIO SYSTEMS, INC. AWCC# H300192 JANUARY 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/CORTER_RONNIE_H300192_20240110.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CORTER_RONNIE_H300192_20240110.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H300192 \n \nRONNIE J. CORTER, Employee                                                                    CLAIMANT \n \nCOMMERCIAL AUDIO SYSTEMS, INC., Employer                                RESPONDENT \n \nSTONETRUST INSURANCE COMPANY, Carrier                                   RESPONDENT                        \n \n \n OPINION FILED JANUARY 10, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JASON RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  December  13,  2023,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on September 6, 2023 \nand a pre-hearing order was filed on that same date.  A copy of the pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The  employee/employer/carrier  relationship  existed  among  the  parties  on \nSeptember 26, 2022. \n 3.   The claimant was earning sufficient wages to entitle him to compensation at \nthe weekly rates of $453.00 for total disability benefits and $340.00 for permanent partial \n\nCorter – H300192 \n2 \n \ndisability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s left shoulder on September 26, 2022. \n2.     Related medical. \n3.     Temporary total disability benefits from September 27, 2022 through a date  \nyet to be determined. \n4.      Attorney’s fee. \n The  claimant  contends  he  sustained  a  compensable  left  shoulder  injury  on \nSeptember 26, 2022, and is entitled to medical treatment and temporary total disability \nbenefits from September 27, 2022 to a date yet to be determined.  Claimant reserves all \nother issues. \n The respondents contend the claimant did not suffer a compensable injury. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non September  6,  2023  and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his left shoulder on September 26, 2022.   \n\nCorter – H300192 \n \n3 \n \n 3.      Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable injury. \n 4.   Claimant has proven by a preponderance of the evidence that he is entitled to \ntemporary total disability benefits beginning September 29, 2022 and continuing through \na date yet to be determined. \n 5.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant is a 35-year-old man who began working for respondent as an installer \nin  May  2021.    Respondent  primarily  designs  and  installs  audio,  video,  and  lighting  for \ncommercial facilities such as courtrooms, churches, and performing arts centers.  As an \ninstaller,  claimant’s  job  duties  included  running  the  lines  for  speakers  and  audio \nequipment; installation of speakers, audio equipment, tvs, et cetera. \n Claimant  has  an  extensive  history  of  prior  injuries  to  his  left  shoulder,  having \nsuffered injuries to both shoulders while serving in the military.  He testified that the first \nsurgery on his left shoulder occurred while he was stationed in South Korea.  His second \nleft shoulder surgery was in 2009 or 2010.  He underwent a third procedure on the left \nshoulder at Fort Bliss which included Bankart and SLAP revision with five anchor screws \nimplanted.  Claimant’s fourth left shoulder surgery was a Latarjet procedure in May 2013.  \nClaimant  believes  that  this  surgery  was  necessitated  by  job  activities  for  another \nemployer, but he did not file a workers’ compensation claim.  On May 23, 2022, claimant \nunderwent a Laterjet revision procedure by Dr. Cox. \n\nCorter – H300192 \n \n4 \n \n All of these prior procedures were paid for by the military or the VA.  Following the \nmost recent surgery in May 2022, Dr. Cox initially gave claimant a lifting restriction of no \nmore  than  two  pounds  with  his  left  arm.    Notably,  claimant  is  left-hand  dominant.    By \nAugust 31, 2022, Dr. Cox had increased claimant’s ability to lift to 20 pounds with an \nadditional restriction of no climbing ladders.   \n Claimant had returned to work for respondent as an installer within his restrictions.  \nClaimant testified that on September 26, 2022, he was in the process of opening the door \nwith his left hand when another employee, Miguel Martinez, who had entered the building \njust before him abruptly closed the door which resulted in a jerking motion on his left arm.  \nClaimant testified that he immediately felt sharp, searing pain radiating into his neck and \nshoulder and believed he had pulled a muscle in his arm. \n Claimant performed his job duties on September 26, 2022, and again for the next \ntwo days.  On September 29, 2022, claimant indicated that he did not want to ride to a \nchurch job site in the same vehicle with Martinez.  Upon arriving at the job site a heated \ndiscussion took place with claimant using some profanity.  Claimant was terminated by \nrespondent at that time.  Claimant testified that later that same day, he was home washing \ndishes when his left shoulder dislocated. \n Claimant  sought  medical  treatment  from  the  emergency  room  where  he  was \ndiagnosed with a shoulder sprain; given a sling to wear; and instructed to return to his \northopedist.  Claimant  returned  to  see  Dr.  Cox  on  November  30,  2022,  who  noted  that \nclaimant had  three  left  shoulder  dislocations since  the  door  incident  on  September  26, \nwith an additional seven to eight times that the shoulder had tried to dislocate. \n Medical  records  from  Dr.  Cox  indicate  that  he  continued  to  treat  claimant \n\nCorter – H300192 \n \n5 \n \nconservatively with an effort to avoid any further surgery.  His treatment consisted of anti-\ninflammatories and an injection.  When claimant’s condition did not improve Dr. Cox \nperformed a total shoulder replacement procedure on August 17, 2023.   \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis  left  shoulder  on  September  26,  2022.    He  requests  payment  of  medical  treatment, \ntemporary total disability benefits, and a controverted attorney fee. \n  \nADJUDICATION \n Claimant  contends  that  he  suffered  a  compensable  injury  to  his  shoulder as  a \nresult  of  the  incident  with  the  door  on  September  26,  2022.    Clearly,  claimant  had \nsignificant  pre-existing  left  shoulder  problems.    In  fact,  claimant  had  just  recently \nundergone  a  Laterjet  revision  procedure  by  Dr.  Cox  on  May  23,  2022,  and was  still \nworking within restrictions given to him by Dr. Cox following that procedure.  However, an \nemployer  takes  the  employee  as  it  finds  him,  and  employment  circumstances that \naggravate pre-existing conditions are compensable.  Heritage Baptist Temple v. Robison, \n82  Ark.  App.  460,  120  S.W.  3d  150  (2003).    An  aggravation  of  a pre-existing  non-\ncompensable  condition  by  a  compensable  injury  is,  itself,  compensable.   Oliver  v. \nGuardsmark,  68  Ark.  App.  24,  3  S.W.  3d  336  (1999).    An  aggravation  is  a  new  injury \nresulting from an independent incident.  Crudup v. Regalware, Inc., 341 Ark. 804, 20 S.W. \n3d 900 (2000).  An aggravation, being a new injury with an independent cause, must meet \nthe  definition  of  a  compensable  injury  in  order  to  establish  compensability  for  the \naggravation.  Farmland Insurance Company v. DuBois, 54 Ark. App. 141, 923 S.W. 2d \n883 (1996); Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W. 2d 5 (1998). \n\nCorter – H300192 \n \n6 \n \n Thus, the fact that claimant had a pre-existing condition to his left shoulder does \nnot  disqualify  him  from  compensation  benefits  if  he  can  prove  that  his  pre-existing \ncondition was aggravated by a work-related injury.  Claimant contends that he suffered \nhis compensable injury as the result of a specific incident which occurred on September \n26,  2022,  when  the  front door of respondent’s place of business was forcefully  shut, \ncausing a jerking sensation on his left arm.  Claimant’s claim is for a specific injury \nidentifiable by time and place of occurrence.     In order to prove a compensable injury as \nthe  result  of  a  specific  incident  that  is  identifiable  by  time  and  place  of  occurrence,  a \nclaimant must establish by a preponderance of the evidence (1) an injury arising out of \nand in the course of employment; (2) the injury caused internal or external harm to the \nbody  which  required  medical  services  or  resulted  in  disability  or  death;  (3)  medical \nevidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was \ncaused by a specific incident identifiable by time and place of occurrence.  Odd Jobs and \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  met  his  burden  of  proving  by a \npreponderance of the evidence that he suffered a compensable injury.  First, I find that \nclaimant’s injury arose out of and in the course of his employment with the respondent.  \nRespondent contends that claimant was not performing “employment services” at the time \nthe accident occurred.  A compensable injury does not include an injury that is inflicted \nupon the employee at a time when employment services are not being performed.  A.C.A. \n§11-9-102(4)(B)(iii).    The  Courts  have  determined  that  an  employee  is  performing \nemployment services when he is doing something that is generally required by his or her \n\nCorter – H300192 \n \n7 \n \nemployer.  Pifer v. Single Source Transportation, 347 Ark. 851, 69 S.W. 3d 1 (2002).  We \nuse the same test to determine whether an employee is performing employment services \nas  is  used  when  determining  whether  an  employee  was  acting  within  the  course and \nscope of employment.  Jivan v. Econ. Inn & Suites, 370 Ark. 414, 260 S.W. 3d 281 (2007).  \nThe  test  is  whether  the  injury  occurred  within  the  time  and  space  boundaries  of  the \nemployment, when the employee was carrying out the employer’s purpose or advancing \nthe employer’s interest, directly or indirectly.  Id.  In Texarkana School District v. Conner, \n373 Ark. 372, 284 S.W. 3d 57 (2008), the Court stated that where it was clear that the \ninjury occurred outside the time and space boundaries of employment, the critical inquiry \nis whether the interests of the employer were being directly or indirectly advanced by the \nemployee at the time of the injury.  In addition, the issue of whether an employee was \nperforming  employment  services  within  the  course  of  employment  depends  upon  the \nparticular facts and circumstances of each case.   \n I   find   based   upon   the   evidence   presented   that   claimant   was   performing \nemployment services at the time of his injury.  Respondent notes that claimant had not \nactually entered the building at the time of the incident and that he had not clocked in and \nwas  not  performing  any  job  duties  at  the  time  the  incident  occurred.    However,  the \nevidence indicates that claimant was in the process of actually clocking in at the time the \naccident occurred.  According to claimant’s testimony, he and other employees used an \napp on their phone to clock in for work.  Claimant testified that he was in the process of \nclocking in when the incident occurred: \n   \n  Q And you were using it [phone] to clock in? \n\nCorter – H300192 \n \n8 \n \n \n  A Yes, sir.  You just tap on the app, it pops up, you \n  tap on it to clock in and you are done and you close that \n  app and put it back in your pocket. \n \n  Q Did you successfully clock in before this incident \n  occurred?   \n \n  A I was in the process of clocking in as it happened. \n \n  Q  Okay.  So had you pressed the button or not? \n \n  A I think I was actually in the process of pressing the \n  button when he pulled on the door which caused me to \n  actually probably miss the button. \n \n  Q Okay.  So if not for that incident - -  \n \n  A I would have been clocked in. \n \n \n Thus, claimant was actually in the process of clocking in at the very moment this \nincident occurred.  In addition, he was also in the process of walking through the front \ndoor to begin his work day at the time the incident occurred.  While respondent contends \nthat there are a number of cases involving injuries which occurred to employees before \nthey enter a building in which a claimant is not performing employment services, I note \nthat those are generally in a parking lot or other areas of the business.  In this particular \ncase, claimant was literally prevented from clocking in and entering the building to begin \nhis job duties by the actions of Martinez.  Therefore, even though claimant’s injury did \noccur outside the time and/or space boundaries of his employment, “The critical inquiry \nis whether the interests of the employer were being directly or indirectly by the employee \nat  the  time  of  the  injury.”  (Emphasis added.)  See Wood v. Wendy’s Old Fashioned \nHamburgers,  2010 Ark. App. 307, 374 S.W. 3d 785.  Claimant was clearly advancing his \n\nCorter – H300192 \n \n9 \n \nemployer’s interest, either directly or indirectly, by clocking in and entering the building at \nthe  time  this  incident  occurred.    Accordingly,  I  find  that  claimant  was  performing \nemployment services at the time of his injury.  Therefore, I find that claimant’s injury arose \nout of and in the course of his employment with respondent. \nI also find that claimant has proven by a preponderance of the evidence that his \ninjury  was  caused  by  a  specific  incident  identifiable  by  time  and  place  of  occurrence.  \nClaimant testified that his injury occurred on September 26, 2022, when he was holding \nthe door handle to open the door to respondent’s business and it was jerked closed, \nresulting  in  pain  in  his  left  shoulder.    Although  there  was  some  initial  question  at  the \nhearing as to whether or not this incident occurred, the co-employee, Miguel Martinez, \ntestified as a witness.  The following testimony occurred: \n   THE COURT:  Mr. Martinez, I have got a question for \n  you.  You said you noticed that Mr. Corter was about two or \n  three steps behind you when you went in the building. \n \n   THE WITNESS:  Well, the door is here.  I am coming \n  from around the building.  He is coming this way.  So like he \n  is coming straight and I am coming from the side. \n \n   THE COURT:  So my question to you is why did you \n  close the door behind you when you knew he was right behind \n  you?   \n \n   THE WITNESS:  It was just one of those deals.  I guess \n  just to mess with him. \n \n   THE COURT:  So you did do it to mess with him? \n \n   THE WITNESS:  I guess so. \n \n   THE COURT:  And you do affirm that he came in and \n  told you immediately after that that you had injured his shoulder \n  as a result of that; is that correct? \n \n\nCorter – H300192 \n \n10 \n \n   THE WITNESS:  He was telling me something about  \n  that he just had surgery on it and that I could have possibly \n  hurt him or something. \n \n \n Martinez had also previously testified that claimant mentioned that the incident had \ninjured his left shoulder immediately after it had occurred.   \n  Q Did Mr. Corter say anything at that time? \n  A Yes.  After that, I proceeded to the breakroom. \n  He talked to me about saying that I messed up his \n  shoulder intentionally.  Something about a surgery that \n  he had.  I told him that it was an accident.  I didn’t mean \n  to harm him in any way and I apologized to him. \n \n \n It  is  clear  from  the  evidence  presented  at  the  hearing  that  there  was  animosity \nbetween  Martinez  and  claimant  at  the  workplace.    However,  claimant’s  claim  for  a \ncompensable  injury  does  not  require  him  to  prove  that  Martinez  intentionally  meant  to \ncause him an injury.  Even if this incident was accidental and the result of Martinez’s effort \nto “mess” with claimant, that is sufficient under Arkansas law.  Accordingly, I find that \nclaimant has proven that his injury was caused by a specific incident identifiable by time \nand place of occurrence. \n I also find that claimant’s injury caused internal or external harm to his body that \nrequired  medical  services  or  resulted  in  disability  and  that  he  has  offered  medical \nevidence supported by objective findings establishing an injury. \n First,  it  should  be  noted  that  on  the  day  of  this  door  incident,  claimant  did  seek \nmedical treatment from an emergency room later that day for complaints of groin pain.  At \nno  time  during  that  examination  did  claimant  make  any  complaints  involving  his  left \nshoulder.  Claimant testified that at that time it was his belief that he had simply pulled a \n\nCorter – H300192 \n \n11 \n \nmuscle in his shoulder and that he would not be provided any treatment at the emergency \nroom other than a recommendation to place ice on the shoulder and use over-the-counter \nmedications.  Two days later after the claimant was terminated and he was home washing \ndishes  his  left  shoulder  dislocated.    Claimant  sought  medical  treatment  from  the \nemergency room that day and the emergency room records contain a history of claimant’s \nleft shoulder pain having begun three days ago as a result of an incident in which claimant \nwas attempting to open the door and an individual on the other side was attempting to \nclose the door causing a pull on his left shoulder.  Subsequent medical records from Dr. \nCox also support a notation of history consistent with claimant’s testimony. \n As previously noted, Dr. Cox initially attempted to treat claimant conservatively and \naccording to Dr. Cox’s report of December 21, 2022, while the incident at work had \ncaused increased pain in the claimant’s left shoulder, his x-rays  were  not  significantly \ndifferent than they were before that incident.  However, claimant continued to complain \nof left shoulder pain and Dr. Cox eventually ordered an MRI scan which revealed a small \ninterstitial  tear  of  the  conjoint/anterior  infraspinatus  tendons.    Thereafter,  Dr.  Cox \nperformed the total shoulder replacement procedure on August 17, 2023.  Dr. Cox’s \noperative report of that date contains the following post-op diagnosis: \n1.   Left shoulder DJD \n2.   Left bicipital tenosynovitis and tearing. \n3.   Left shoulder pain and dysfunction secondary \n to 1 and 2.  (Emphasis added.) \n This  tearing  observed  by  Dr.  Cox  during  his  surgical  procedure  constitutes  an \nobjective finding.   \n Accordingly, based upon the objective finding of tearing noted by Dr. Cox as well \n\nCorter – H300192 \n \n12 \n \nas  the  remaining  medical  records  from  Dr.  Cox,  I  find  that  claimant  has  proven  by  a \npreponderance  of  the  evidence  that  his  injury  caused  internal  harm  to  his  body that \nrequired  medical  services  and  that  he  has  offered  medical  evidence  supported  by \nobjective findings establishing an injury. \n Based upon the foregoing, I find that claimant has met his burden of proving by a \npreponderance of the evidence that he suffered a compensable injury to his left shoulder \non  September  26,  2022.  Respondent  is  liable  for  payment  of  all  reasonable  and \nnecessary medical treatment provided in connection with claimant’s compensable left \nshoulder injury.  This includes the surgical procedure performed by Dr. Cox on August \n17, 2023.   \n Claimant also contends that he is entitled to temporary total disability benefits.  In \norder  to  be  entitled  to  temporary  total  disability  benefits,  claimant  has  the  burden  of \nproving by a preponderance of the evidence that he remains within his healing period and \nthat  he  suffers  a  total  incapacity  to  earn  wages  as  a  result  of  his  compensable  injury.  \nArkansas State Highway & Transportation Department v. Breshears, 272 Ark. 244, 613 \nS.W. 2d 392 (1981).   \n I  find  that  claimant  has  met  his  burden  of  proving  by  a  preponderance  of the \nevidence that he is entitled to temporary total disability benefits beginning September 29, \n2022 and continuing through a date yet to be determined.  First, I find that claimant has \nremained  within  his  healing  period  since  September  29,  2022.    On  that  date,  claimant \nsought  medical  treatment  from  the  Washington  Regional  Medical  Center  emergency \nroom and he was referred back to his orthopedist, Dr. Cox.  Since that time, claimant has \ncontinued to be evaluated and treated by Dr. Cox and that treatment has now included \n\nCorter – H300192 \n \n13 \n \nsurgery  on  August  17,  2023.    As  of  September  15,  2023,  claimant  was  continuing  to \nreceive care from Dr. Cox with no indication that claimant has reached maximum medical \nimprovement.    Accordingly,  I  find  that  claimant  has  remained  within  his  healing  period \nsince September 29, 2022.   \n I also find that claimant has suffered a total incapacity to earn wages since that \ndate.  When claimant sought medical treatment from the emergency room he was given \na  sling  to  wear  on  his  left  arm.    As  previously  noted,  claimant  is  left-hand  dominant.  \nAccordingly, claimant would only be able to perform job duties involving his non-dominant \nhand.  In Farmers Co-Op v. Biles, 77 Ark. App. 1, 69 S.W. 3d 899 (2002), the Arkansas  \nCourt of Appeals stated: \n \n  If, during the period while the body is healing, the employee \n  is unable to perform remunerative labor with reasonable \n  consistency and without pain and discomfort, his temporary \n  disability is deemed is total. \n \n \n Based upon the fact that claimant’s dominant arm was in a sling and that he would \nonly be capable of performing work with his non-dominant arm, I find that claimant has \nproven  by  a  preponderance  of  the  evidence  that  he  suffered  a  total  incapacity to  earn \nwages since September 29, 2022 and continuing through a date yet to be determined.   \nFollowing claimant’s surgery, Dr. Cox placed a two-pound lifting restriction on claimant’s \nability to lift with his left arm.   \n In  summary,  I  find  that  claimant  is  entitled  to  temporary  total  disability  benefits \nbeginning September 29, 2022 and continuing through a date yet to be determined.   \n \n\nCorter – H300192 \n \n14 \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe  suffered  a  compensable  injury  to  his  left  shoulder  on  September  27, 2022.  \nRespondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical  treatment \nprovided in connection with his compensable left shoulder injury.  Claimant is entitled to \ntemporary total disability benefits beginning September 29, 2022 and continuing through \na date yet to be determined.  Pursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney \nis  entitled  to  an  attorney  fee  in  the  amount  of  25%  of  the  compensation for  indemnity \nbenefits payable to the claimant.   Thus, claimant’s attorney is entitled to a 25% attorney \nfee based upon the indemnity benefits awarded.   This fee is to be paid one-half by the \ncarrier  and  one-half  by  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an \nattorney fee is not awarded on medical benefits. \nRespondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $853.95. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n \n      ________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":24911,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300192 RONNIE J. CORTER, Employee CLAIMANT COMMERCIAL AUDIO SYSTEMS, INC., Employer RESPONDENT STONETRUST INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED JANUARY 10, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washing...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["shoulder","neck","sprain","back"],"fetchedAt":"2026-05-19T22:58:15.274Z"},{"id":"alj-H302634-2024-01-10","awccNumber":"H302634","decisionDate":"2024-01-10","decisionYear":2024,"opinionType":"alj","claimantName":"James Martin","employerName":"Pernod Ricard USA LLC","title":"MARTIN VS. PERNOD RICARD USA LLC AWCC# H302634 JANUARY 10, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MARTIN_JAMES_H302634_20240110.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARTIN_JAMES_H302634_20240110.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H302634 \n \n \nJAMES MARTIN (DEC’D.), Employee                                                            CLAIMANT                         \n \nPERNOD RICARD USA LLC, Employer                                                  RESPONDENT                          \n \nLIBERTY MUTUAL INSURANCE CO., Carrier                                        RESPONDENT                          \n \n \n \n OPINION/ORDER FILED JANUARY 10, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant  represented  by  EDDIE  H.  WALKER,  JR.,  Attorney,  Fort  Smith,  Arkansas; \nalthough not appearing at hearing. \n \nRespondents represented by RICK BEHRING, JR., Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This  case  comes  on  for  review  following  a  hearing  on  respondent’s  Motion  to \nDismiss. \n On January 24, 2023, claimant suffered an injury to his back.  On April 24, 2023, \nclaimant filed Form AR-C requesting additional compensation benefits and a change of \nphysician.  Apparently, in June 2023 respondent received notice that claimant had passed \naway from a condition unrelated to his claim.  As a result, respondent filed a motion to \ndismiss this claim on October 23, 2023. \n By letter dated November 29, 2023, Mr. Walker acknowledged the passing of the \nclaimant and indicated that under the circumstances he had no objection to dismissal of \n\nMartin (Dec’d.) – H302634 \n \n2 \n \nthe claim without prejudice. \n Based on my review of the respondent’s motion, the letter from Mr. Walker dated \nNovember  29,  2023,  and  all  other  matters  properly  before  the  Commission,  I  find  that \nrespondent’s motion to dismiss this claim should be and hereby is granted pursuant to \nCommission Rule 099.13.  This dismissal is without prejudice. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2012,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302634 JAMES MARTIN (DEC’D.), Employee CLAIMANT PERNOD RICARD USA LLC, Employer RESPONDENT LIBERTY MUTUAL INSURANCE CO., Carrier RESPONDENT OPINION/ORDER FILED JANUARY 10, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebas...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:58:17.310Z"},{"id":"full_commission-G908137-2024-01-09","awccNumber":"G908137","decisionDate":"2024-01-09","decisionYear":2024,"opinionType":"full_commission","claimantName":"Lexington Arthur","employerName":"Staffmark Investments, LLC","title":"ARTHUR VS. STAFFMARK INVESTMENTS, LLC AWCC# G908137 JANUARY 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Arthur_Lexington_G908137_20240109.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Arthur_Lexington_G908137_20240109.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G908137 \n \nLEXINGTON S. ARTHUR, \nEMPLOYEE \n \nCLAIMANT \nSTAFFMARK INVESTMENTS, LLC,  \nEMPLOYER \n \nRESPONDENT \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nCCMSI, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JANUARY 9, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Vacated. \n \n \n OPINION AND ORDER \nThe claimant appeals an ORDER OF DISMISSAL WITHOUT \nPREJUDICE FILED JULY 12, 2023.  The Full Commission vacates the \nadministrative law judge’s dismissal, and we remand for further \nproceedings.   \nI.  HISTORY \n The record indicates that Lexington Arthur, now age 25, was hired by \nthe respondents, Staffmark Investments, LLC on September 17, 2019.  The \nrecord contains a FIRST REPORT OF INJURY OR ILLNESS prepared \nDecember 16, 2019.  The FIRST REPORT OF INJURY OR ILLNESS \n\nARTHUR - G908137  2\n  \n \n \nindicated that the claimant sustained a “Crushing injury to left forearm” on \nDecember 10, 2019.  The FIRST REPORT indicated, “Left forearm caught \nin auger.”   \n A Form AR-2, EMPLOYER’S INTENT TO ACCEPT OR \nCONTROVERT CLAIM dated December 16, 2019 indicated that the \nrespondents “Accepted Left Forearm Injury.” \n Dr. John W. Bracey reported on June 30, 2021: \nPatient is a 23-year-old returns today for follow-up evaluation \nof severe left upper extremity injury.  This was a bur (sic) \nrelated crush avulsion injury when his upper extremity was \ncaught in an auger.  He underwent multiple surgeries \nincluding revascularization by the vascular surgery team, soft \ntissue coverage, and soft tissue repairs.  His last surgery was \non 12/16/2019.   \nOverall he has done very well.  He reports that he is not really \n[having] any pain.  He continues to have some limitations in \nfunction but the (sic) relatively mild.  He is working without \nrestrictions and not having any difficulty.... \nToday I had a very long discussion with the patient.  We again \ndiscussed that he had a very severe injury.  Despite the \nseverity he has done excellent job of regaining function.  He \nhas been very dedicated with therapy that is (sic) resulted in \ngood overall function.  He still has some limitations particularly \nregards to his loss of strength.  He also has some mild loss of \nrange of motion....I do believe he is at maximal medical \nimprovement.  I do believe he can continue working without \nrestrictions he was given the today (sic).  Will therefore \nproceed with his final rating using the Cassat evaluation of \npermanent impairment, 4\nth\n edition....due to the work related \ninjury there is a 30% impairment to the left upper extremity.   \n \n Dr. Bracey’s impression was “Status post surgical treatment left \nupper extremity crush avulsion injury.”   \n\nARTHUR - G908137  3\n  \n \n \n Dr. Mohammed M. Moursi, Division of Vascular & Endovascular \nSurgery, University of Arkansas for Medical Sciences, stated on July 14, \n2021, “From a Vascular Surgery standpoint, Lexington Arthur is cleared for \nwork with no restrictions.  He should continue vascular lab surveillance for \nlife.”     \n The claimant filed a Form AR-C, CLAIM FOR COMPENSATION on \nJanuary 13, 2022.  The ACCIDENT INFORMATION section of the Form \nAR-C indicated that the Date of Accident was December 10, 2019, and the \ninjury was described:  “Left arm caught in auger causing multiple injuries \nfrom fingers to bicep resulting in surgeries, vascular grafts, and months of \nrehab and therapy returning for visits and ultrasound on the graft.”  The \nCLAIM INFORMATION section of the Form AR-C indicated that the \nclaimant claimed “additional” benefits, specifically “Additional Medical \nExpenses.”   \n The claimant filed another Form AR-C, CLAIM FOR \nCOMPENSATION, on May 17, 2022.  The CLAIM INFORMATION section \nof the Form AR-C indicated that the claimant claimed “additional” benefits, \nspecifically “Additional Medical Expenses.” \n A Senior Claims Examiner with the third-party administrator informed \nan employee with the Commission on May 25, 2022, “We are in receipt of \nyour notice dated May 17, 2022.  The aforementioned claim was accepted \n\nARTHUR - G908137  4\n  \n \n \nas compensable and all appropriate medical and indemnity benefits due \nhave been paid.”  \n On or about November 14, 2022, the respondents served on the \nclaimant a MOTION TO DISMISS FOR FAILURE TO PROSECUTE.  The \nrespondents stated: \n1.  This claim involves an injury which occurred on or about \n12/10/19.  Respondents will stipulate that an Employer-\nEmployee relationship existed on that date.  More than six \nmonths have passed since Claimant filed an AR-C with the \nCommission.  Claimant has not sought any type of bona fide \nhearing before the Workers’ Compensation Commission over \nthe last six months.   \n2.  Rule 099.13 of the Arkansas Workers’ Compensation \nCommission provides that upon application by either party for \na dismissal for failure to prosecute, the Commission may, \nafter reasonable notice to all parties, enter an order \ndismissing the claim. \n3.  Ark. Code Ann. §11-9-702 provides for dismissal if no bona \nfide request for a hearing has been made within six (6) \nmonths of the filing of a claim.   \n4.  In the event Claimant objects to the dismissal but does not \nrequest a hearing on the merits, Respondents request a \nhearing on the Motion to Dismiss.   \n \n An administrative law judge corresponded with the claimant on \nNovember 17, 2022: \nA Motion to Dismiss has been filed for failure to diligently \nprosecute or pursue this claim. \nIf you wish to respond to this Motion or request a hearing, \nplease contact my office, in writing, within twenty (20) days, \nTuesday, December 6, 2022.  Failure to respond may result in \nthe dismissal of this claim.   \n \n\nARTHUR - G908137  5\n  \n \n \n The claimant corresponded with the administrative law judge on \nNovember 29, 2022: \n  Dear Sir: \nEnclosed is the AR-C to request continuance of my workers \ncompensation claim due to additional medical expenses.  The \nemployer is aware that I have a lifetime of medical procedures \nrequired due to my workplace injuries.  It is also noted in my \nmedical records. \nCompliance with completion of AR-C every six months is \ndifficult for me.  I regret if I was late with my November 2022 \nsubmission. \nIt is my desire that the motion to be dismissed be denied on \nmy need for additional medical expenses.      \n \n The claimant filed a third Form AR-C, CLAIM FOR \nCOMPENSATION on November 30, 2022.  The ACCIDENT \nINFORMATION section of the Form AR-C indicated that the Date of \nAccident was in December 2019, and the claimant appeared to write, \n“Auger caught glove and pulled arm in up to shoulder resulting in multiple \nlacerations and artery severing in upper left arm.”  The CLAIM \nINFORMATION section of the Form AR-C indicated that that the claimant \nclaimed entitlement to “additional” benefits, specifically, “Additional Medical \nExpenses.”   \n The respondents’ attorney corresponded with the administrative law \njudge on December 1, 2022: \nI have received a copy of the claimant’s November 29, 2022 \ncorrespondence to you indicating an objection to the dismissal \nrequest that I’ve made in this matter.  Your Honor, medical \nexpenses are continuing to be paid with regard to this claim.  \n\nARTHUR - G908137  6\n  \n \n \nThere are no benefits or issues that are outstanding or that \nwarrant litigation.  A formal hearing has not been requested.  \nIn light of this, Respondents request that a hearing be \nscheduled on the dismissal so that we can close the litigation \naspect of this file.  That will have no bearing on Mr. Arthur’s \ncontinued medical care so long as the same is reasonable \nand necessary.   \n \n The record contains an undated letter from Dr. Moursi: \n  To Whom It May Concern, \nArthur Lexington, date of birth 4/11/98, had a left brachial \nartery repair by Dr. Mohammed Moursi at UAMS in 2019.  He \nis currently a vascular lab surveillance patient, and receives \nan ultrasound yearly. \nIf you have any questions, please call the UAMS Vascular \nSurgery department at (501) 686-6176.   \n \n A hearing was held on January 4, 2023.  The respondents’ attorney \nargued, among other things, “There’s been no prosecution in this case \nsince these multiple Form C filings.  Therefore, Respondents respectfully \nrequest that you dismiss the case, both under §11-9-702 and Rule 13 of the \nCommission’s rules for failure to prosecute.”   \n The claimant stated that he filed Forms AR-C for purposes of the \nstatute of limitations.  The administrative law judge examined the pro se \nclaimant: \nJUDGE PICKENS:  And my understanding is, again, that you \nare objecting to the motion because as far as you’re \nconcerned, there are some outstanding issues that you need \nto address with Mr. Parrish and his client.  Is that correct? \nMR. L. ARTHUR:  That is correct.  And we also do have an \nupcoming appointment with the vascular lab once again, \nso....Dr. Moursi did warn me of that – that I will need to have \n\nARTHUR - G908137  7\n  \n \n \nultrasounds to monitor the artery that they took from my leg \nand put into my, you know, my arm.   \n \n The respondents’ attorney cross-examined the claimant: \nQ.  Mr. Arthur, you mentioned an upcoming vascular lab \nappointment.  When is that appointment? \nA.  That’s Friday the 6\nth\n. \nQ.  Okay.  Can you agree with me that you don’t have any \nevidence of any bills that have been submitted to the Work \nComp adjuster that have been denied in this case?  Is that \nright? \nA.  Uh, I don’t believe anything has been denied.   \nQ.  Okay. \nA.  I just know we have that one outstanding balance. \nQ.  Okay.  And you’re not requesting a hearing here today? \nA.  Uh, not today, no.   \n \n The administrative law judge re-examined the claimant: \nJUDGE PICKENS:  Mr. Parrish asked you if you were \nrequesting a hearing here today, and he didn’t – I wasn’t sure \nif you understood that to mean requesting a hearing on the \nmedical issues today or a hearing at some point in the future. \nMR. L. ARTHUR:  Um, I – I guess we can do it at some point \nin the future.  I’m not sure what –  \nJUDGE PICKENS:  Are you requesting a hearing at some \npoint in the future? \nMR. L. ARTHUR:  Yes.   \n \n The administrative law judge filed an opinion on January 9, 2023 and \nfound in pertinent part: \n2.  The ALJ will hold in abeyance a decision on the \nrespondents’ subject motion to dismiss without prejudice for a \nperiod of 45 days, or until Monday, February 20, 2023 (since \n45 days from the hearing date falls on a Saturday). \n3.  The parties have 45 days from the hearing date, or until \nMonday, February 20, 2023, to obtain any and all additional \ninformation they require and to attempt to resolve any and all \noutstanding issues, if they remain. \n\nARTHUR - G908137  8\n  \n \n \n4.  If, after the expiration of this 45-day time-period the \nclaimant does not request, in writing (with a copy to the \nrespondents’ attorney, or course) a hearing before the \nCommission and advise both the Commission and the \nrespondents exactly what specific issues he believes are ripe \nfor a hearing, the ALJ will grant the respondents’ motion to \ndismiss filed November 14, 2022, without prejudice, and \nwithout the necessity of either the respondents filing another \nmotion, and without holding another hearing on the motion.   \n \n The administrative law judge subsequently entered an ORDER OF \nDISMISSAL WITHOUT PREJUDICE FILED JULY 12, 2023.  The \nadministrative law judge concluded: \nHaving given the parties significantly more time to comply with \nthe terms of the attached order filed January 12, 2023, that \napplied to them, and pursuant to the attached order filed \nJanuary 12, 2023, this claim hereby is dismissed without \nprejudice to its refiling pursuant to the deadlines prescribed by \nArk. Code Ann. §11-9-702(a)(4)(2023 Lexis Replacement), \nand Commission Rule 099.13 (2023 Lexis Repl.). \nThis Order shall not be construed to prohibit the claimant, his \nattorney of record, any attorney he may retain in the future, or \nanyone acting legally and on his behalf from refiling the claim \nif it is refiled within the applicable time periods prescribed by \nArk. Code Ann. §11-9-702(a) and (b).   \n \n The claimant appeals to the Full Commission. \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-702(Repl. 2012) provides, in pertinent part: \n  (b)  TIME FOR FILING ADDITIONAL COMPENSATION.... \n(d)  If within six (6) months after the filing of a claim for \nadditional compensation no bona fide request for a hearing \nhas been made with respect to the claim, the claim may, upon \nmotion and after hearing, if necessary, be dismissed without \nprejudice to the refiling of the claim within the limitation period \nspecified in subsection (b) of this section.   \n\nARTHUR - G908137  9\n  \n \n \n \n Commission Rule 099.13 provides, in pertinent part: \nUpon meritorious application to the Commission from either \nparty in an action pending before the Commission, requesting \nthat the claim be dismissed for want of prosecution, the \nCommission may, upon reasonable notice to the parties, enter \nan order dismissing the claim for want of prosecution.   \n \n In the present matter, the Full Commission vacates the \nadministrative law judge’s dismissal of the claim and we remand for further \nproceedings. \n The record indicates that the claimant became employed with the \nrespondents in September 2019.  The record indicates that the claimant \nsustained a serious work-related injury on December 10, 2019.  The \nclaimant’s left forearm was pulled into an auger.  The Full Commission \nnotes that the respondent-carrier “accepted” the claim for medical \ntreatment, but there has never been a stipulation of compensability.  Dr. \nMoursi at UAMS stated in July 2021, “He should continue vascular lab \nsurveillance for life.”     \n The claimant filed Forms AR-C claiming entitlement to additional \nmedical benefits on January 13, 2022, May 17, 2022, and November 30, \n2022.  The last Form AR-C filing was after the respondents filed a Motion to \nDismiss for Failure to Prosecute.   \n A hearing was held at the respondents’ initiative on January 4, 2023.  \nThe claimant, then pro se, was unsure with to regard to whether or not he \n\nARTHUR - G908137  10\n  \n \n \nrequested a hearing.  Yet the Full Commission reiterates the following \nportion of the administrative law judge’s examination of the claimant:   \nJUDGE PICKENS:  Are you requesting a hearing at some \npoint in the future? \n  MR. L. ARTHUR:  Yes.   \n \n This colloquy of record plainly shows that the claimant timely \nrequested a hearing within six months of his last Form AR-C filing in \naccordance Ark. Code Ann. §11-9-702(b)(d)(Repl. 2012).  The claimant \ntestified on January 4, 2023, well within six (6) months after the Form AR-C \nfiled on November 30, 2022, that he requested a hearing.  The Full \nCommission finds that the claimant made a timely “bona fide request for a \nhearing” in accordance with Ark. Code Ann. §11-9-702(b)(d)(Repl. 2012).     \n The purpose of Commission Rule 099.13 is to permit the claimant to \nresist dismissal of the claim and to show, if he can, why the application for \ndismissal is without merit.  Dura Craft Boats, Inc. v. Daugherty, 247 Ark. \n125, 444 S.W.2d 562 (Ark. 1969).  In the present matter, the respondents \nare asking the Commission to dismiss a claim while they are still \npurportedly paying medical benefits provided in connection with the work-\nrelated injury, for which injury they have not formally stipulated to \ncompensability.  The claimant stated at hearing that at least one of his \nmedical bills has not been paid by the respondent-carrier.  The claimant in \nthe present matter sustained a serious injury at work, apparently underwent \n\nARTHUR - G908137  11\n  \n \n \nmultiple surgeries, and has been assigned a permanent anatomical \nimpairment.  The record does not clearly show whether the respondents \nhave paid a permanent rating.   \n The Full Commission therefore vacates the administrative law \njudge’s dismissal of the claim.  We remand the matter to the administrative \nlaw judge for consideration of the claimant’s entitlement to additional \nmedical treatment, including unpaid medical bills and any other benefits to \nwhich the claimant may be entitled.  The Full Commission strongly advises \nthe claimant to timely submit evidence in accordance with Ark. Code Ann. \n§11-9-705(c)(2)(A)(Repl. 2012).   \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n I must respectfully dissent from the Majority’s finding that the \nAdministrative Law Judge’s dismissal of this claim should be vacated and \nthe matter be remanded to the Administrative Law Judge for consideration \nof the claimant’s entitlement to additional medical treatment including \n\nARTHUR - G908137  12\n  \n \n \nunpaid medical bills and other benefits to which the claimant may be \nentitled. \n \n The Act provides for the dismissal of claims if \n \nwithin six (6) months after the filing of a claim for \nadditional compensation no bona fide request \nfor a hearing has been made with respect to the \nclaim, the claim may, upon motion and after \nhearing, if necessary, be dismissed without \nprejudice to the refiling of the claim within the \nlimitation period specified in subsection (b) of \nthis section. \n \nArk. Code ann. § 11-9-702(d). \n \nThe Commission, therefore, has the authority to \n \n[u]pon meritorious application to the \nCommission from either party in an action \npending before the Commission, \nrequesting that the claim be dismissed for \nwant of prosecution, the Commission \nmay, upon reasonable notice to the \nparties, enter an order dismissing the \nclaim for want of prosecution. \n \nCommission Rule 099.13. \n \nThis matter originated when the claimant sustained a left forearm \ninjury on December 10, 2019.  The respondents accepted this claim as \ncompensable on December 16, 2019, and the claimant filed subsequent \nForms AR-C on January 13 and May 17, 2022.  However, beyond \nsubmitting these forms to the Commission, the claimant took no further \nsteps to pursue this claim, and no hearing request was ever filed.  Due to \n\nARTHUR - G908137  13\n  \n \n \nthis want of prosecution, the respondents filed a Motion to Dismiss on \nNovember 14, 2022.  In response, the claimant filed a third Form C on \nNovember 30, 2022, requesting additional medical benefits.  No hearing \nrequest was made by the claimant. \nA dismissal hearing was held on January 4, 2023,  and the claimant \ntestified that he had not filed for any form of prosecution simply because \n“we believed at that time that everything was paid up to date.  Uh, therefore, \nwe did not pursue any form of a hearing or other legal action followed, \nsimply because of that.”  (Hrng. Tr, P. 11).  The claimant later testified that \nhe believed no bills had been submitted and denied. (Hrng. Tr, P. 24). \nWhen asked directly at the hearing on January 4, 2023 if he was requesting \na hearing, the claimant stated “Uh, not today, no.” (Hrng. Tr, P. 24). \nAfter the dismissal hearing, the ALJ ruled that he would hold his \ndecision in abeyance for 45 days or until Monday, February 20, 2023 (since \n45 days from the date of the hearing falls on a Saturday).  During this \nperiod, the claimant retained Mr. Gary Davis to represent him; however, to \ndate, no hearing request has been submitted.  The Commission has long \nheld that   \nThe fact that the filing of a claim tolls the \nstatute of limitations does not, in itself, \njustify the filing of claims where no \njusticiable controversy exists or justify \nallowing claims to remain open where all \njusticiable controversies have been \n\nARTHUR - G908137  14\n  \n \n \nresolved. To do so would be contrary to \nthe purposes underlying the statute of \nlimitations. \n \nJohnson v. Triple T Foods, 55 Ark. App. 83, 929 S.W.2d 730, 731 (1996). \n \nIn the case at bar, the claimant has failed to identify any justiciable \nissue and has, in fact, agreed that no bona fide request for a hearing has \nbeen made.  By the Majority’s own admission, the claimant has merely \nstated that he may request a hearing at some point in the future.  (Hrng. Tr., \nPp. 26-27).  To date, no request has been made and no controversies have \nbeen identified.  The claimant has wholly failed to provide any justification \nwhy his claim should remain open. \nAccordingly, for the reasons stated above, I respectfully dissent. \n  \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":20846,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G908137 LEXINGTON S. ARTHUR, EMPLOYEE CLAIMANT STAFFMARK INVESTMENTS, LLC, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ CCMSI, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 9, 2024","outcome":"dismissed","outcomeKeywords":["dismissed:3","denied:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:29:46.021Z"},{"id":"full_commission-H203317-2024-01-09","awccNumber":"H203317","decisionDate":"2024-01-09","decisionYear":2024,"opinionType":"full_commission","claimantName":"Mark Ausbrooks","employerName":"Lexicon, Inc","title":"AUSBROOK VS. LEXICON, INC. AWCC# H203317 JANUARY 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Ausbrooks_Mark_H203317_20240109.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Ausbrooks_Mark_H203317_20240109.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H203317 \n \nMARK A. AUSBROOKS, \nEMPLOYEE \n \nCLAIMANT \nLEXICON, INC.,  \nEMPLOYER \n \nRESPONDENT \nTRISTAR CLAIMS MANAGEMENT SERVICES, \nINC., INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JANUARY 9, 2024  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nJune 6, 2023.  The administrative law judge found that the claimant proved \nhe was entitled to temporary total disability benefits and medical treatment.  \nAfter reviewing the entire record de novo, the Full Commission finds that \nthe claimant proved the medical treatment of record was reasonably \nnecessary in connection with the compensable injury.  The claimant proved \nthat he was entitled to temporary total disability benefits beginning April 8, \n2022 until a date yet to be determined.   \nI.  HISTORY \n\nAUSBROOKS - H203317   2\n  \n \n \n The record indicates that Mark Ausbrooks, now age 52, was hired by \nthe respondent-employer, Lexicon, Inc., on January 21, 2020.  Mr. \nAusbrooks testified that he had been employed with the respondents as a \nSheet Metal Mechanic.  The parties stipulated that the employee-employer \nrelationship existed on March 24, 2022, on which date the claimant \n“sustained a compensable injury.”  The claimant testified on direct \nexamination: \n Q.  What was Lexicon Holdings doing?  What’s the job? \nA.  We were puttin’ HVAC ductwork in the UCA Fine Arts \nbuilding....  \n Q.  Tell us what happened. \nA.  I was walkin’ with Joe Minton through the concert hall and \nthere was a board anchored to the floor coverin’ up a \nelectrical place.  I was carryin’ a box of cleats and was walkin’ \nthrough there and my left foot hit it, and when it did, all my \nweight came down on my right foot.  A loud pop occurred.  \nJoe told me to walk it off, and I looked at him and said, “Joe, \nthis is bad.”  He said, “Just walk it off.  You can do it.”   \nQ.  Okay.  Mr. Minton was your supervisor at the time? \nA.  Yes, sir.   \nQ.  Okay.  So this incident resulted in you needing medical \ntreatment.  Is that right? \nA.  Yes, sir.... \nQ.  Now, there’s a company nurse there at Lexicon, right? \nA.  Yes, sir. \nQ.  So you did see the company nurse at Lexicon. \nA.  Yes, sir.... \nQ.  So you went to the nurse and what did the nurse do for \nyou? \nA.  She put me on don’t work for a week, go to the office every \nday and put it on ice[.]... \nQ.  So did you, in fact, go to work and put ice on your foot? \nA.  Yes, sir.  Five days.   \nQ.  Okay.  Now the injury is an Achilles injury, the backside of \nyour right ankle calf area, right? \n\nAUSBROOKS - H203317   3\n  \n \n \nA.  Yes, sir.... \nQ.  You were there for about a week basically doing nothing \nbut icing your leg? \nA.  I just sat in a chair for eight hours and then they released \nme to go.... \n  Q.  So what happened for a work standpoint? \nA.  I went back to my work and there’s no way I could, you \nknow, do my job.   \n  Q.  So how many days did you work after that discussion? \n  A.  I believe it was three 10-hour days. \nQ.  Okay.  And when you were working on those days, what \nwere you doing? \nA.  The first day I was climbin’ up an extension ladder catchin’ \nduct as it came across the safety rail and carryin’ it down a \nhallway, which there was no concrete poured at the time, so it \nwas just raw roof and decking.... \nQ.  And are you carrying items up the ladder? \nA.  We’re not supposed to but yes, sir, I did.... \nQ.  How far do you have to walk?   \nA.  I mean, 50, 75 foot, maybe 100 yards, you know, to the \nfirst piece, and then we stage our way out like I said.   \nQ.  All right.  And so you did that for three days? \nA.  Yes, sir. \nQ.  All right.  How were you doing? \nA.  Not good.... \nQ.  And as far as being on your feet, are you having to be on \nyour feet all day to perform this work? \nA.  10 hours a day.   \n \n According to the record, the claimant treated at Carter Family \nMedicine Clinic on April 5, 2022: \nMark Ausbrooks is a 51 year old male who presents for \ncontinued right leg pain.  Was at work helping supervisor \nmove equipment on March 28, 2022 when he tripped and felt \npop and searing leg pain in his calf.   \nPain worse when he tried to put weight on leg or trying to \ndorsiflex foot.   \nWas seen at company Health Center by Nurse Practitioner \nand cleared to return to light-duty.  There is no light duty \npositions at his company. \n\nAUSBROOKS - H203317   4\n  \n \n \nSince accident his pain is worse, he has to use crutches to \nambulate, calf remains tender.... \nExtremities:  normal except for tenderness to palpate right \ncalf, bruise below right calf, swelling of leg.   \n \n Dr. Inge Carter diagnosed “Calf injury.”  Dr. Carter planned an x-ray \nof the claimant’s right lower leg and referral to an orthopedist.  Dr. Carter \nalso stated, “Continue to use crutches when ambulating.”   \n The claimant testified that his employment was terminated by his \nsupervisor, Joe Minton, on or about April 6, 2022.  Joe Minton testified that \nhe was a Project Manager/Estimator for the respondent-employer, and that \nhe had been the claimant’s main supervisor.  Joe Minton agreed that the \nclaimant’s employment was terminated on or about April 8, 2022.  The \nrespondents’ attorney examined Mr. Minton at hearing: \nQ.  Did Mr. Ausbrooks receive any verbal warnings leading up \nto that termination? \nA.  He had previously, yes.  Several. \nQ.  For what types of things? \nA.  Several verbal warnings.  Verbal warnings about bein’ late, \nabout not comin’ in, about the quality of his work, about doin’ \nthings right, about conflicts on the jobsite, arguin’ with people, \nstirrin’ up trouble on the jobsite[.]... \nQ.  What made you wait until April 8\nth\n to terminate him? \nA.  Because we were – ‘cause we needed help.  We were \nbusy and I kept him until I just got to a point where I – I didn’t \nneed any more help and I couldn’t afford to – to not keep the \nhelp.   \n \n The claimant’s attorney cross-examined Joe Minton: \nQ.  Would you agree he had at least a week where the nurse \nhad him with the ice just being sedentary, not doing anything? \n\nAUSBROOKS - H203317   5\n  \n \n \nA.  I don’t know for sure what she had him doin’, but yeah, it \nwas about a week that I know he was under her care. \nQ.  All right.  So after that, he got released by her and he went \nback to work and worked three days before he got fired, right? \nA.  Yes, I believe that’s about right.   \nQ.  What was he doing on those three days? \nA.  Tryin’ to install ductwork.  Not a lot, to be honest.   \nQ.  Well, was he performing – maybe he wasn’t performing \nvery well, okay?  But to be performing his regular duties, isn’t \nthat what he was supposed to be doing? \nA.  That’s correct. \nQ.  Okay.  So he was not being given light duty, and he was \nnot being given sedentary duty, and he was fired without a \nwritten warning, right? \nA.  That’s correct.   \n \n The record contains a Lexicon Separation Notice indicating that the \nrespondents terminated the claimant’s employment effective April 8, 2022.  \nThe Lexicon Separation Notice indicated that the respondents terminated \nthe claimant because of “Performance” and “Attendance.”  The following \nremarks were written on the Separation Notice:  “Mark has a repeated \nhistory of tardiness and absences, to the point he could no longer be \ncounted on.  Despite being given over two years he still doesn’t have all the \ntools necessary to perform his job and had to borrow from others to be able \nto perform a task.  His production was very slow and his quality was \nunacceptable.  Constant problems with him on the site as well, including \nconflicts with others, parking issues and lack of respect.”  The Separation \nNotice included a Final Employee Evaluation which indicated that the \nfollowing areas were “Unacceptable”:  Quality of Work, Productivity, \n\nAUSBROOKS - H203317   6\n  \n \n \nDependability, Safety, and Initiative.  The claimant’s supervisor, Joe K. \nMinton, Jr., signed the Separation Notice on April 11, 2022. \n A Nurse Practitioner’s diagnosis on April 18, 2022 was “Rupture of \nright Achilles tendon.”     \n Joe Minton corresponded with Danna Gaunt and other individuals via \ne-mail on May 18, 2022: \n1)  Did he complain about anything related to his injury \nbetween the date of the injury and the date of separation? \nMarked (sic) was cleared and returned to the job site on \nMonday, April 4\nth\n.  On Wednesday he told me his leg was \nswollen the night before but he knew it was because he \ndidn’t wear the bandage as instructed and that it was fine \nthat day because he had the bandage on.  On Friday he \ncomes to me and says he knows he has been cleared but \nhis leg still hurt.  Then he stated that he called Mike \nPerkins on Thursday and said his leg was still hurt and \nMike told him to tough it out until Sunday and if it still hurt \nhe could go to the ER.  When I mentioned this to Mike he \nimmediately says that wasn’t true.  When I told Mark that \nMike said it wasn’t true, he just shook his head and walked \noff. \n2)  Did he miss a lot of work and was it documented? \nMark missed a lot of time at work and that was one of the \nprimary reasons for his separation, along with the poor \nquality of his work and lack of production.  I’ve attached \ncopies of his timecard that show 14 tardys, 3 early outs \nand 2 absences since January.  And these didn’t show all \nthe times he was late returning from either our morning \nbreak or our lunch break.   \n3)  Help me justify the reason on the separation for his \nattendance and performance. \nBesides the attendance mentioned above, his production \nand quality were unacceptable.  He would show up one \nday with just a few of the required tools to perform his job \nand then the next day not have any and say oh I left them \nat home.  On the occasions where we let him make small \n\nAUSBROOKS - H203317   7\n  \n \n \ndecisions about the project he was working on, more time \nthan not we would have to go back and redo the work due \nto poor quality and bad decisions.  Mark has over 20 \nyears’ experience and it got to the point were I had two or \nthree year guys leading the projects because Marks work \nwas unacceptable.  Numerous complaints from both the \nmechanical contractor and the general contractor about \nMarks attitude and treatment towards others, and lack of \nrespect for the work of the other trades on the job.  It was \nmentioned more than once that if he kept on that way, he \nwould be asked to leave the job.  As I’ve mentioned to \nSteve and Renee, the only reason I did not terminate him \nsooner was because of our work load and lack of \nmanpower.  We had a spell for about two plus months \nwhere we had all crews working 7 days a week and 10 \nhours a day and I needed as many men on the job as \npossible.  We are just now getting back to our regular 40 \nhour work weeks for the most part although we haven’t \nhad any layoffs in manpower, we did get to a point where I \ncould live without him.   \n \n Dr. Robert Daniel Martin noted on May 26, 2022: \nPatient to follow-up.  States minimal improved since last office \nvisit 2 weeks ago.  He reports he has been ambulating in the \ntall walking boot, however, reports some physical therapy \nstates he has no showed that appointment and showed up to \nanother 1 without his boot on.  He continues to endorse \nsignificant pain from the gastrocnemius muscle down his \nAchilles tendon and cannot push off with his right foot.... \nRight ankle examination demonstrates muscle contracture \nproximally at the myotendinous junction of the gastrocnemius \nwith significant tenderness to palpation, moderate edema, \ntender to palpate the length of the Achilles tendon as well, \npain with resisted plantar flexion, distal neurovascular intact, \npain out of proportion on examination.... \n \n Dr. Martin assessed “51-year-old male partial thickness Achilles \ntendon rupture right side, worker’s compensation, intermittent \nnoncompliance.”  Dr. Martin planned, “Went over ports of continue with the \n\nAUSBROOKS - H203317   8\n  \n \n \nregular physical therapy and tall boot use, we will keep him on sedentary \nwork duty, he is not at MMI currently, follow-up in 1 month.  We will possibly \ntransition him out of the walking boot at that time.”  The diagnosis was \n“Achilles rupture, right[.]”  \n The claimant treated at Baptist Health Therapy Centers on July 19, \n2022, where the claimant was diagnosed with “Strain of right Achilles \ntendon, initial encounter.”  It was also noted at that time, “Pt states he is \nhurting a lot today and states when he got up from a chair on Saturday he \nheard and felt a pop in his Achilles even with his boot on.  Pt states he is \nnot able to do everything today but is icing at home.”    \n Dr. Justin H. Long corresponded with a Medical Case Manager on \nAugust 15, 2022: \n  I have reviewed the MRI of the right ankle dated 4/21/2022. \nThere is no evidence of acute fracture at the right ankle.  \nThere is no mass like abnormal marrow replacement.  There \nis patchy subchondral marrow edema at multiple \ntarsometatarsal articulations.... \nThere is marked thickening of the Achilles tendon extending \nfrom the myotendinous junction distally.... \nI have reviewed the MRI of the right ankle dated 8/1/2022. \nThere is no acute fracture at the ankle.... \nIn my professional opinion, the patient’s partial thickness \nAchilles tendon tear could certainly be acute given the history \nof tripping at work.  However, this undoubtably occurs on a \nbackground of chronic Achilles tendinopathy present previous \nto the acute traumatic event.  On the follow-up MRI in August, \nthe partial thickness Achilles tear has largely healed although \nthe features of Achilles tendinopathy remain.  With regards to \nthe need for surgery, the imaging findings discussed above \ncould support surgical treatment as an option due to \n\nAUSBROOKS - H203317   9\n  \n \n \npersistent, chronic tendinopathy and previous tearing.  This is \nassuming the patient was adherent to the nonoperative \ntreatment regimen/rehabilitation but has failed to improve to a \nsufficient degree clinically.  However, by imaging, the acute \nAchilles tendon partial-thickness intrasubstance and \nmyotendinous tear has undergone significant healing in the \ninterval between the MRI exams suggesting that the surgery \nwould be treating the continued tendinopathy and reducing \nrisk for recurrent tear.  Ultimately, the need for surgery should \nbe largely clinical and related to persistent symptomatology in \nthe setting of chronic Achilles tendinopathy and the resultant \nlifestyle limitations.   \n \n On August 19, 2022, the Medical Case Manager queried Dr. James \nL. Head in part, “After reviewing the second MRI dated 8/1/2022 of M. \nAusbrooks right ankle and Dr. Long’s comparison of the two MRIs; is it still \nyour professional opinion that Mr. Ausbrooks requires surgical intervention \nof the right ankle?  If so, please opine if your recommendation for surgery is \ngreater than 51% directly related to the acute injury from 3/24/2022?”  Dr. \nHead answered with a question mark and commented, “Exacerbation of \npre-existing condition, I can’t put a % on that.”   \n The Medical Case Manager corresponded with Dr. Martin on August \n25, 2022: \nMr. Ausbrooks requested a change of physician.  He saw Dr. \nHead at Conway Orthopedics on two separate occasions.  On \n7/27/2022 Dr. Head requested to proceed with surgical \nintervention, non-insertional Achilles tendinopathy \ndebridement and FHL transfer.  The insurance carrier \nrequested a second MRI which was done on 8/1/2022.  The \ninsurance carrier requested Dr. Justin Long to compare the \ntwo MRIs and then asked Dr. Head’s opinion on relatedness \nof the surgery that he requested. \n\nAUSBROOKS - H203317   10\n  \n \n \nThe insurance has requested your expert opinion as well.  I \nhave attached all the medical records since his last visit with \nyou.  Would you kindly review and provide your opinion if Mr. \nAusbrooks requires surgical intervention of the right ankle?  If \nso, please opine if the surgery is greater than 51% directly \nrelated to the acute injury from 3/24/2022? \n \n Dr. Martin answered “No” and commented, “Pt primary c/o pain and \nIMO this is related to his chronic pre-existing Achilles tendinopathy, his \npartial Achilles tear has healed on his most recent MRI.  The recommended \nsurgery is NOT > 51% directly related to acute 3/24/2022 injury.”   \n The claimant followed up with Dr. Head on October 28, 2022: \nMark presents for his right Achilles.  He reports that he is here \nfor to discuss surgery options.  He is ambulating without \nassistance wearing normal footwear.  He was able to \ntransition from the boot but is still experiencing pain when \nwalking.  The pain usually occurs while weightbearing.  He \nreports that he has pain with walking on uneven ground.  She \nstates that he has not improved in pain since his last visit.... \nMRI on the Right Ankle on 4/21/22:  Tendinosis of the Achilles \ntendon with medium grade intra-substance partial tear.   \n \n Dr. Head’s impression was “Noninsertional Achilles tendinopathy \nw/partial tear/rupture, right foot....I recommended proceeding with the \npreviously discussed surgery.”   \n Dr. Head performed surgery on December 6, 2022:  “Right \ndebridement of the Achilles tendon with secondary repair and flexor hallucis \nlongus tendon transfer to the calcaneus.”  The pre- and post-operative \ndiagnosis was “R Achilles tendinopathy.”  Dr. Head planned following \nsurgery, “Nonweightbearing.  Follow up in two weeks.  Once his wound is \n\nAUSBROOKS - H203317   11\n  \n \n \nhealed, he can begin weightbearing as tolerated in a boot and begin \nphysical therapy.”     \n Dr. Jason G. Stewart corresponded with Integrity Consulting \nServices on January 10, 2023: \nThe following is a narrative report of the medical file review in \nthe specialty of orthopedic surgery regarding Mark Ausbrooks.  \nI have reviewed the attached the statement of accepted facts \nand the following medical records.  I have been asked by the \ninsurer for my opinion on relatedness.... \n1.  Are the objective findings on the imaging related to an \nacute work injury or preexisting chronic issues? \nI reviewed radiologic imaging studies provided on CD, \nincluding MRIs of the right ankle from 4/21/2022 and \n8/1/2022.  Both MRIs depict evidence of chronic Achilles \ntendinosis.  Achilles tendinosis is an often-misunderstood \ndiagnosis.  It is distinct from Achilles tendonitis, insertional \nAchilles tendonitis, Achilles strain and Achilles rupture.  A \npartial tear of the Achilles tendon, also known as a strain, \nis an acute, traumatic injury to the tendon, often caused by \nsudden force or impact.  An acute traumatic partial tear of \nthe Achilles tendon typically presents with immediate pain, \nswelling, and stiffness at the site of the injury, and can \nmake it difficult to walk or stand on the affected foot.   \nOn the other hand, tendinosis is a degenerative condition \nthat develops over time, and it is not caused by a specific \ntraumatic event.  It is usually caused by overuse or aging \nand characterized by pain, weakness and stiffness of the \naffected joint.... \nThe claimant reports that he was “a lot” better with a pain \nlevel of 1/10, which led to release from medical care on \n4/1/2022.  This course of recovery would be appropriate \nand expected considering the mechanism and nature of \ninjury.  The provided records have a 17-day period from \nthe claimant’s recover and release from medical treatment \nto a visit with a new provider, new claims of worsened \nswelling, bruising, pain escalation from 1/10 to 7/10 and \ninability to put weight on the leg and acknowledgement of \nbeing fired from his job.  Typically, the further one is \n\nAUSBROOKS - H203317   12\n  \n \n \ntemporally removed from the traumatic incident the quality \nof pain diminishes as recovery occurs, which is what was \nseen initially.  There was no query by the subsequent \nprovider nor the insurer for an explanation of how and why \nthe recovery reversed course so dramatically.  An MRI had \nnot been done at this point and neither provider (but nurse \npractitioners) was aware of a chronic, underlying condition \nthat should have been considered as part of establishing a \ndifferential diagnosis.   \nThe ability to compare MRI studies from 1 month and 5 \nmonths after the injury is invaluable in this case.  The initial \nMRI findings showing some increased signal intensity of \nthe Achilles tendon which suggested partial tearing \napproximately one month later would be consistent within \nthis time frame of still having evidence of an injury but also \nacknowledging there are significant surrounding changes \nclearly much older than 1 month.  The follow-up MRI \nrepresents an improvement, the changes initially \npresumed to be acute are no longer present, while the \nchronic findings appear to be still present and unchanged \nin nature.  I would interpret this as a recovery to a baseline \nchronic diagnosis with clear evidence of resolution of the \nacute injury. \n2.  Within a medical degree of certainty do you believe the \nrecommended surgery is appropriate and medically \nnecessary for Mr. Ausbrooks’ status as reflected on the \n8/1/2022 MRI related to the work injury? \nI believe withing (sic) a reasonable degree of medical \ncertainty, based on the evidence provided in this medical \nrecord, the surgery was not appropriate or necessary to \ntreat the injury on 3/24/2022.  The surgical procedures Dr. \nHead performed were appropriate for the treatment of a \nchronic condition (Achilles tendinosis).  The record \nindicates an acute aggravation of a chronic problem \nsubjective clinical improvement and objective radiologic \nevidence of improvement.  The progress note immediately \nbefore the surgical procedure does not acknowledge the \nmore recent MRI which shows improvement of the \nappearance of the Achilles tendon.  Dr. Head makes no \nmention of seeing any evidence of an acute or subacute \ninjury, nor the consequence of an injury at the time of \nsurgery.  The initial claim is for a strain or low-grade partial \n\nAUSBROOKS - H203317   13\n  \n \n \ntear of the Achilles tendon, but no mention of tearing \nappears in the operative note.  In fact, the operative note \nindicates the surgeon debrided (surgically removed) nearly \n50% of the Achilles tendon substance.  This procedure \nwhen combined with a flexor hallucis longus (FHL) transfer \nis intended to remove degenerative changes in the \nAchilles tendon, transfer the FHL muscle belly with its rich \nblood supply to the anterior surface of the Achilles tendon \nto improve local blood flow and augment the debrided and \nweakened Achilles tendon.  The surgical treatment for an \nacute Achilles tear is to repair the tear with sutures, not \nremove half the tendon.   \nThe second MRI confirms resolution of the acute injury.  \nThe third medical record from 4/1/2022 indicates an \nimproved and nearly resolved injury.  The claimant’s own \nadmission of a quick recovery and release from medical \ncare only to reappear 3 weeks later at another medical \nclinic with symptoms appearing more severe than upon \ninitial presentation lacks a credible/logical premise.  There \nare records from Dr. Martin indicating the claimant not \nwearing the boot to the visit, which could be interpreted as \neither noncompliance or symptom resolution.  Dr. Martin \nnotes which appeared to be an out-of-proportion pain \nresponse to physical exam at approximately 2 months \nafter the injury.  Again, this would be considered unusual \ngiven the elapsed time from injury and the previous visits \nwhere this was not present.  Pain behavior out-of-\nproportion to expected norms could be interpreted as a \nworsening of the injury process or symptom magnification.  \nThe claimant mentions a reinjury at home getting out of his \nshower with an audible “pop” but there is no evidence of \nconsideration of what role this may have had in leading up \nto a surgical intervention.  These particular medical \nfindings should be examined with a prudent amount of \nprofessional skepticism in order to thoroughly understand \na logical chain of events from injury to treatment.     \n \nA pre-hearing order was filed on March 1, 2023.  According to the \ntext of the pre-hearing order, the claimant contended, “Claimant contends \nthat he sustained compensable injuries to his right leg, ankle, and foot on \n\nAUSBROOKS - H203317   14\n  \n \n \nMarch 24, 2022.  Claimant further contends that he is entitled to payment of \ntemporary total disability (TTD) benefits for the period of March 24, 2022, \nthrough a date yet to be determined.  That payment of these benefits has \nbeen controverted for purposes of attorney’s fees.  Claimant also contends \nthat he is entitled to payment of medical treatment for December 6, 2022, \nsurgery.” \n The respondents contended, “Respondents contend that all \nappropriate benefits are being paid with regard to this matter.  The claimant \nhas been accepted at this time as medical only.  Respondents provided \nlight duty for claimant and would have continued to do so but for his \ntermination on April 8, 2022, for cause.  Respondents further contend that \nthe surgery performed by Dr. Head was not reasonable and necessary \nassociated with the March 24, 2022, injury.”   \n The parties agreed to litigate the following issue:  “1.  Temporary \ntotal disability (TTD).”   \n A hearing was held on May 4, 2023.  Upon examination by an \nadministrative law judge, the claimant testified that he was still “under a \ndoctor’s care” and was not working for any employer.    \n An administrative law judge filed an opinion on June 6, 2023.  The \nadministrative law judge found that the claimant proved he was entitled to \nadditional temporary total disability benefits beginning April 7, 2022 until a \n\nAUSBROOKS - H203317   15\n  \n \n \ndate to be determined.  The administrative law judge found that the surgery \nundergone by the claimant on December 6, 2022 was “directly related” to \nthe compensable injury “and shall be paid by the Respondents.”   \n The respondents appeal to the Full Commission. \nII.  ADJUDICATION \nA.   Medical Treatment \nThe employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).   \nAn administrative law judge found in the present matter, “4.  \nClaimant’s December 6, 2022, ankle surgery is directly related to his March \n24, 2022 injury and shall be paid by the Respondents.”  The Full \nCommission finds that the medical treatment of record following the \n\nAUSBROOKS - H203317   16\n  \n \n \ncompensable injury was reasonably necessary.  Said reasonably necessary \nmedical treatment included surgery performed by Dr. Head on December 6, \n2022. \nThe parties stipulated that the claimant sustained a compensable \ninjury on March 24, 2022.  The claimant’s testimony indicated that he \ntripped and injured his right lower extremity as the result of a work-related \nspecific incident occurring March 24, 2022.  A claimant who has sustained a \ncompensable injury is not required to offer “objective medical evidence” to \nprove he is entitled to additional benefits.  Chamber Door Industries, Inc. v. \nGraham, 59 Ark. App. 224, 956 S.W.2d 196 (1997).  Nevertheless, there \nwere objective medical findings of record following the compensable injury.  \nIt was noted at Carter Family Medicine Clinic on April 5, 2022 that there \nwas a bruise below the claimant’s right calf and swelling of the claimant’s \nleg.  Dr. Carter diagnosed “Calf injury.”  A Nurse Practitioner’s diagnosis on \nApril 18, 2022 was “Rupture of right Achilles tendon.”  The Full Commission \nfinds that the ruptured right Achilles tendon was causally related to the \nMarch 24, 2022 compensable injury and was not the result of a prior injury \nor pre-existing condition.   \nDr. Martin examined the claimant on May 26, 2022 and reported \n“muscle contracture” in the claimant’s right lower extremity as well as \n“moderate edema.”  These were additional objective medical findings.  Dr. \n\nAUSBROOKS - H203317   17\n  \n \n \nMartin also reported that the claimant had sustained a “partial thickness \nAchilles tendon rupture.”  We find that Dr. Martin’s diagnosis of “Achilles \nrupture, right” was causally related to the March 24, 2022 compensable \ninjury and was not the result of a prior injury or pre-existing condition.  It \nwas also noted at Baptist Health Therapy Centers on July 19, 2022 that the \nclaimant had suffered a “Strain of right Achilles tendon, initial encounter.”  \nWe find that the report of a strained right Achilles tendon on July 19, 2022 \nwas causally related to the March 24, 2022 compensable injury and was \nlikewise not the result of a prior injury or pre-existing condition.   \nDr. Long opined on August 15, 2022 that “the partial thickness \nAchilles tear has largely healed although the features of Achilles \ntendinopathy remain.”  Dr. Martin agreed with Dr. Long and opined on \nAugust 25, 2022 that surgery proposed by Dr. Head was not reasonably \nnecessary.  Dr. Stewart stated on January 10, 2023 that surgery \nrecommended by Dr. Head was not reasonably necessary.       \nThe Commission has the authority to accept or reject a medical \nopinion and the authority to determine its probative value.  Poulan Weed \nEater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002).  It is within the \nCommission’s province to weigh all of the medical evidence and to \ndetermine what is most credible.  Minnesota Mining & Mfg. v. Baker, 337 \nArk. 94, 989 S.W.2d 151 (1999).  In the present matter, the Full \n\nAUSBROOKS - H203317   18\n  \n \n \nCommission finds that the opinion stated by treating surgeon Dr. Head was \nmost credible.  Dr. Head opined on August 19, 2022 that the claimant had \nsustained an “Exacerbation of pre-existing condition, I can’t put a % on \nthat.”  The claimant need only prove that the compensable injury was “a \nfactor” in his need for surgery recommended by Dr. Head.  See Williams v. \nL&W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004).  The evidence \nin the present matter demonstrates that the compensable injury was at least \n“a factor” in Dr. Head’s recommendation for surgery.  We find that Dr. \nHead’s treatment recommendations are supported by the record and are \nentitled to more evidentiary weight than the opinions of Dr. Long, Dr. Martin, \nor Dr. Stewart.  The Full Commission therefore finds that the medical \ntreatment of record, including surgery performed by Dr. Head, was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).     \nB.   Temporary Total Disability \nThe parties stipulated that the claimant sustained a compensable \ninjury on March 24, 2022.  The evidence demonstrates that the \ncompensable injury resulted, among other things, in a rupture of the \nclaimant’s right Achilles tendon and was therefore a “scheduled injury” in \naccordance with Ark. Code Ann. §11-9-521(a)(4)(Repl. 2012).  Act 796 of \n\nAUSBROOKS - H203317   19\n  \n \n \n1993, as codified at Ark. Code Ann. §11-9-521(Repl. 2012), provides, in \npertinent part: \n(a) An employee who sustains a permanent compensable \ninjury scheduled in this section shall receive, in addition to \ncompensation for temporary total and temporary partial \ndisability benefits during the healing period or until the \nemployee returns to work, whichever occurs first, weekly \nbenefits in the amount of the permanent partial disability \nrate attributable to the injury[.]    \n \nThe Arkansas General Assembly requires that administrative law \njudges and the Full Commission shall strictly construe the provisions of Act \n796.  See Ark. Code Ann. §11-9-704(c)(3)(Repl. 2012).  The doctrine of \nstrict construction is to use the plain meaning of the language employed.  \nHoladay v. Fraker, 323 Ark. 522, 915 S.W.2d 280 (1996). \nIn the present matter, the administrative law judge decided the case \nin accordance with the appellate standard for adjudicating nonscheduled \ninjuries, viz., Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d \n392 (1981).  The administrative law judge erred as a matter of law.  For \nscheduled injuries the injured employee is to receive compensation for \ntemporary total or temporary partial disability during the healing period or \nuntil the employee returns to work, whichever occurs first.  Ark. Code Ann. \n§11-9-521(a)(Repl. 2012), supra; Wheeler Constr. Co. v. Armstrong, 73 \nArk. App. 146, 41 S.W.3d 822 (2001).  The healing period is that period for \nhealing of the injury which continues until the employee is as far restored as \n\nAUSBROOKS - H203317   20\n  \n \n \nthe permanent character of the injury will permit.  Nix v. Wilson World Hotel, \n46 Ark. App. 303, 879 S.W.2d 457 (1994).  If the underlying condition \ncausing the disability has become more stable and if nothing further in the \nway of treatment will improve that condition, the healing period has ended.  \nId.  Whether an employee’s healing period has ended is a question of fact \nfor the Commission.  Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 \nS.W.2d 25 (1995). \nIn any event, it is the duty of the Full Commission to enter findings in \naccordance with the preponderance of the evidence and not on whether \nthere is substantial evidence to support the administrative law judge’s \nfindings.  Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 \n(1983), citing Jones v. Scheduled Skyways, Inc., 1 Ark. App. 44, 612 \nS.W.2d 333 (1981).  The Full Commission reviews an administrative law \njudge’s decision de novo, and it is the duty of the Full Commission to \nconduct its own fact-finding independent of that done by an administrative \nlaw judge.  Crawford v. Pace Indus., 55 Ark. App. 60, 929 S.W.2d 727 \n(1996).  The Full Commission makes its own findings in accordance with \nthe preponderance of the evidence.  Tyson Foods, Inc. v. Watkins, 31 Ark. \nApp. 230, 792 S.W.2d 348 (1990).  Moreover, the appellate court reviews \nthe decision of the Full Commission and not that of the administrative law \njudge.  Powers v. City of Fayetteville, 97 Ark. App. 251, 254, 248 S.W.3d \n\nAUSBROOKS - H203317   21\n  \n \n \n516, 519 (2007), citing High Capacity Prods. v. Moore, 61 Ark. App. 1, 962 \nS.W.2d 831 (1998).   \nIt is the Commission’s duty to weigh the evidence, to resolve any \nconflicts in the evidence, and to assess each witness’s credibility.  Walker v. \nCooper Standard Auto., 104 Ark. App. 175, 289 S.W.3d 184 (2008).  The \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony it deems worthy of belief.  American Greetings \nCorp. v. Garey, 61 Ark. App. 19, 963 S.W.2d 613 (1998). \nIn the present matter, the Full Commission finds that the claimant \nproved he was entitled to temporary total disability benefits beginning April \n8, 2022 until a date yet to be determined.  The claimant sustained a \ncompensable scheduled injury on March 24, 2022.  The claimant testified \nthat he “iced” his right lower extremity at work, elevating his leg, for \napproximately a week following the compensable scheduled injury.  The \nclaimant testified that he subsequently attempted to return to work but \n“there’s no way I could, you know, do my job.”  We note that Dr. Carter \ninstructed the claimant on April 5, 2022 to “use crutches while ambulating.”  \nThe record does not show that that claimant was able to competently \nperform his job as a Sheet Metal Mechanic while using crutches as advised \nby a treating physician.   \n\nAUSBROOKS - H203317   22\n  \n \n \nThe claimant’s supervisor, Joe Minton, terminated the claimant’s \nemployment effective April 8, 2022.  Mr. Minton asserted on a Separation \nNotice that the claimant was an “Unacceptable” employee.  Yet the \nevidence plainly demonstrates that the claimant remained within a healing \nperiod at the time of his termination on April 8, 2022.  A Nurse Practitioner’s \ndiagnosis on April 18, 2022 was “Rupture of right Achilles tendon.”  If, \nduring the period while the body is healing, the employee is unable to \nperform remunerative labor with reasonable consistency and without pain \nand discomfort, his temporary disability is deemed total.  Farmers \nCooperative v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  Ark. Code \nAnn. §11-9-521(a)(Repl. 2012) was not intended to bar additional \ntemporary total disability benefits following an unsuccessful attempt to \nreturn to the workforce.  Id, citing Roberson v. Waste Management, 58 Ark. \nApp. 11, 944 S.W.2d 858 (1997). \nThe evidence in the present matter does not demonstrate that the \nclaimant could effectively perform his employment duties for the \nrespondents while the claimant remained in a healing period for his \ncompensable scheduled injury.  Along with the diagnosis of a ruptured \nAchilles tendon, which diagnosis was causally related to the compensable \ninjury, Dr. Martin reported on May 26, 2022 that the claimant “cannot push \noff with his right foot....Right ankle examination demonstrates muscle \n\nAUSBROOKS - H203317   23\n  \n \n \ncontracture proximally[.]”  Dr. Martin agreed that the claimant had sustained \nan Achilles tendon rupture.  Dr. Martin assigned sedentary work and \nopined, “he is not at MMI currently, follow-up in 1 month.”  Dr. Head \nperformed reasonably necessary surgery on December 6, 2022.  There is \nno indication of record that Dr. Head has released the claimant to return to \nwork or has opined that the claimant reached the end of the healing period \nfor the compensable injury.   \nThe respondents cite as authority Robertson v. Pork Group, Inc., \n2011 Ark. App. 448, 384 S.W.3d 639 (2011).  In Robertson, the Arkansas \nCourt of Appeals affirmed the Full Commission’s finding that the claimant \ndid not prove she was entitled to temporary total disability benefits after her \nemployment was terminated.  The Court of Appeals agreed that the \nclaimant “unjustifiably refused employment suitable to her capacity and \noffered her by the respondent-employer” in accordance with Ark. Code Ann. \n§11-9-526.  Robertson is inapposite, however, because the respondents do \nnot argue, in accordance with Ark. Code Ann. §11-9-526, that the claimant \nin the present case unjustifiably refused employment suitable to his \ncapacity.  To the contrary, the claimant in the present case was terminated \nwhile he remained within his healing period and was physically unable to \nperform remunerative labor with reasonable consistency.  Farmers \nCooperative, supra.   \n\nAUSBROOKS - H203317   24\n  \n \n \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the medical treatment of record following the compensable injury was \nreasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  Said reasonably necessary medical treatment includes \nsurgery performed by Dr. Head on December 6, 2022.  We find that the \nclaimant proved he was entitled to temporary total disability benefits \nbeginning April 8, 2022 until a date yet to be determined.  In accordance \nwith Ark. Code Ann. §11-9-521(a)(Repl. 2012), the claimant has not \nsuccessfully returned to work and remains within a healing period.  The \nclaimant’s attorney is entitled to fees for legal services in accordance with \nArk. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing on appeal to the \nFull Commission, the claimant’s attorney is entitled to an additional fee of \nfive hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012). \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \n \nCommissioner Mayton dissents. \n \n \n\nAUSBROOKS - H203317   25\n  \n \n \nDISSENTING OPINION \n \n I respectfully dissent from the Majority’s opinion.  In my de novo \nreview, I find that the claimant’s December 6, 2022 surgery was not \nreasonable and necessary or causally related to the claimant’s \ncompensable injury on March 24, 2022.  Thus, the claimant is not entitled to \nadditional temporary disability benefits.  \nOur rules dictate that the respondent must provide any medical \ntreatment \"as may be reasonably necessary in connection with the injury \nreceived by the employee.\" Ark. Code Ann. § 11-9-508(a).  “A claimant may \nbe entitled to additional medical treatment after the healing period has \nended if said treatment is geared toward management of the injury.”  S. Tire \nMart v. Perez, 2022 Ark. App. 179, 644 S.W.3d 439 (2022).  Such services \ncan include diagnosing the nature and extent of the compensable injury; \nreducing or alleviating symptoms resulting from the compensable injury; \nmaintaining the level of healing achieved; or preventing further deterioration \nof the damage produced by the compensable injury.  Univ. of Cent. Ark. v. \nSrite, 2019 Ark. App. 511, 588 S.W.3d 849 (2019).  It is a claimant's \nburden, however, to establish by a preponderance of the evidence that the \ntreatment is reasonable and necessary and bears a causal connection to \nthe work injury.  Cossey v. Pepsi Beverage Co., 2015 Ark. App. 265, 460 \nS.W.3d 814 (2015).  What constitutes reasonably necessary treatment is a \n\nAUSBROOKS - H203317   26\n  \n \n \nquestion of fact for the Commission.  LVL, Inc. v. Ragsdale, 2011 Ark. App. \n144, 381 S.W.3d 869 (2011).  The Commission has authority to accept or \nreject medical opinion and to determine its medical soundness and \nprobative force.  Cent. Moloney, Inc. v. Holmes, 2020 Ark. App. 359, 605 \nS.W.3d 266 (2020).  Furthermore, it is the Commission's duty to use its \nexperience and expertise in translating the testimony of medical experts \ninto findings of fact and to draw inferences when testimony is open to more \nthan a single interpretation.  Id.  \nIn the case at hand, the Achilles tendon surgery performed by Dr. \nJames Head was not related to the claimant’s March 24, 2022 \ncompensable injury.  The claimant visited Monica Williams, FNP-C on \nMarch 28, 2022. (Resp. Ex. 1, P. 13).  FNP-C Williams’ examination \nrevealed that the claimant’s “pain is in the calf and posterior heel . . . Exam \nreveals minimal swelling and no bruising.  Diagnosis: muscle strain.”  Id.   \nBy March 29, 2022, the claimant reported that his pain had improved, and \nFNP-C Williams noted, “swelling decreased, no bruising noted, no pain to \npalpation, and no pain with heel and toe pressure.”  Id.  The claimant was \ninitially released from the clinic by Ms. Williams on April 1, 2022 once he \nreported that his pain was a 1/10.  Ms. Williams went on to state that there \nwas “less swelling and he is very surprised that the pain is gone, and he is \nable to put on shoes and walk normal.”  At that point, she discharged him \n\nAUSBROOKS - H203317   27\n  \n \n \nfrom the clinic for the strain and noted the claimant had significantly \nimproved with no pain.  (Resp. Ex. 1, P. 14).  \nThe claimant returned nearly three weeks later, on April 18, 2022, \ncomplaining of “burning, throbbing and tingling pain of 7/10 for 3 weeks.”  \nId.  Meagan Celsor, NP offered a presumptive diagnosis of a ruptured \nAchilles tendon and recommended an MRI.  Id.  The MRI, conducted on \nApril 21, 2022, revealed:  \nThe Achilles tendon is markedly enlarged with \ndiffuse increased signal intensity and \nheterogeneity of the tendon fibers (severe \ntendinosis of the Achilles tendon.)  There is an \nirregular, intrasubstance intermediate grade \ntear that begins near the level of the distal \nmyotendinous junction and extends caudally to \n4 mm cranial to the insertion.  No full-thickness \ncomponent is appreciated. Surrounding soft \ntissue edema is present.  Low-grade sprains of \nthe anterior talofibular and calcaneofibular \nligaments. Mild degenerative changes of the \nsubtalar joints and joints of the midfoot. Id.  \n  \nAt a June 17, 2022 visit with Dr. Robert Martin, the claimant reported \n“stepping out of the shower and feeling a painful pop and increased \nswelling . . . Pain appears out of proportion on examination.”  (Resp. Ex. 1, \nP. 15).  \nThe claimant requested and was granted a one-time change of \nphysician through the Commission and began treating with Dr. James Head \non July 8, 2022.  (Resp. Ex. 1, P. 15).  The claimant had another MRI on his \n\nAUSBROOKS - H203317   28\n  \n \n \nright ankle on August 1, 2022.  Dr. Justin Long conducted an independent \nreview of the claimant’s April 21, 2022 and August 1, 2022 MRIs and \ndetermined that:  \nThe patient’s partial thickness Achilles tendon \ntear could certainly be acute given the history \nof tripping at work.  However, this undoubtably \noccurs on a background of chronic Achilles \ntendinopathy present previous to the acute \ntraumatic event.  On the follow-up MRI in \nAugust, the partial thickness Achilles tear has \nlargely healed although the features of Achilles \ntendinopathy remain.  With regards to the need \nfor surgery, the imaging findings discussed \nabove could support surgical treatment as an \noption due to persistent, chronic tendinopathy \nand previous tearing . . . However, by imaging, \nthe acute Achilles tendon partial-thickness \nintrasubstance and myotendinous tear has \nundergone significant healing in the interval \nbetween the MRI exams suggesting that the \nsurgery would be treating the continued \ntendinopathy and reducing risk for recurrent \ntear.  Ultimately, the need for surgery should \nbe largely clinical and related to the persistent \nsymptomatology in the setting of chronic \nAchilles tendinopathy and the resultant lifestyle \nlimitations. (Resp. Ex. 1, P. 10)(emphasis \nadded.).  \n  \nUpon review of Dr. Long’s opinion, Dr. Head was asked whether his \nrecommended surgery was greater than 51% related to claimant’s on-the-\njob injury, and Dr. Head responded, “Exacerbation of pre-exiting condition, I \ncan’t put a % on that.”  (Resp. Ex. 1, P. 11).  Dr. Robert Martin, when asked \nthe same question, responded that in his opinion, “this is related to chronic \n\nAUSBROOKS - H203317   29\n  \n \n \npre-existing Achilles tendinopathy, his partial Achille’s tear has healed on \nhis most recent MRI.  The recommended surgery is NOT > 51% related \ndirectly to acute 3/24/2022 injury.”  (Resp. Ex. 1, P. 12).  \nAfter Dr. Head performed a debridement of claimant’s Achille’s \ntendon, the respondents obtained an additional third-party opinion \nregarding the two MRIs from Dr. Jason Stewart, a board-certified orthopedic \nsurgeon specializing in foot and ankle care.  Dr. Stewart determined that \n“the surgery was not appropriate or necessary to treat the injury on 3/24/22. \nThe surgical procedures Dr. Head performed were appropriate for the \ntreatment of a chronic condition (Achilles tendinosis).”  (Resp. Ex. 1, P. \n19)(emphasis in original).  Dr. Stewart further stated:  \nThe ability to compare MRI studies from 1 \nmonth and 5 months after the injury is \ninvaluable in this case.  The initial MRI findings \nshowing some increased signal intensity of the \nAchilles tendon which suggested partial tearing \napproximately one month later would be \nconsistent within this time frame of still having \nevidence of an injury but also acknowledging \nthere are significant surrounding changes \nclearly much older than 1 month.  The follow-\nup MRI represents an improvement, the \nchanges initially presumed to be acute are no \nlonger present, and while the chronic findings \nappear to be still present and unchanged in \nnature.  I would interpret this as a recovery to \nbaseline chronic diagnosis with clear evidence \nof resolution of the acute injury.  Id.  \n  \n\nAUSBROOKS - H203317   30\n  \n \n \nDr. Stewart went on to explain that Dr. Head removed nearly 50% of \nthe Achilles tendon substance, which is treatment for degenerative changes \nand not “evidence of an acute or subacute injury.”  Id.  “The surgical \ntreatment for an acute Achilles tear is to repair the tear with sutures, not \nremove half the tendon.”  (Resp. Ex. 1, P. 20).  Dr. Stewart further noted the \nclaimant’s ongoing non-compliance with medical advice, history of symptom \nmagnification, and the claimant’s admission of re-injury at home.  Id.  \nIt is well settled that the Commission has the authority to accept or \nreject medical opinions, and its resolution of the medical evidence has the \nforce and effect of a jury trial.  See Cossey v. Gary A. Thomas Racing \nStable, 2009 Ark. App. 666, 344 S.W.3d 684; Poulan Weed Eater v. \nMarshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002).  The Commission is to \ndetermine the credibility and weight to be accorded to each witness's \ntestimony.  Arbaugh v. AG Processing, Inc., 360 Ark. 491, 202 S.W.3d 519 \n(2005).  \nIn this case, to find that the debridement performed by Dr. Head was \nreasonable, necessary, or causally related to the claimant’s March 24, 2022 \ninjury is to disregard the independent opinions of Dr. Long, Dr. Martin, and \nDr. Stewart.  Prior to the surgery, Dr. Long and Dr. Martin each confirmed \nthat the claimant’s Achilles tear had healed and that the planned surgery \nwould only address the claimant’s chronic pre-existing tendinopathy.  After \n\nAUSBROOKS - H203317   31\n  \n \n \nthe surgery, Dr. Stewart confirmed the same, and cited Dr. Head’s \noperative report as evidence that no tear was revealed during the surgery. \nAccording to Dr. Stewart, the operative report of Dr. Head made no mention \nof seeing any evidence of an acute or subacute injury, nor the consequence \nof an injury at the time of surgery, and there was no mention of tearing in \nthe operative note.   \nWhile it is true that the treatment provided to the claimant leading up \nto the surgery performed by Dr. Head was reasonable, necessary, and \nrelated to a partial thickness Achilles tendon tear, the weight of the medical \nevidence proves that the surgical debridement was wholly unrelated to the \nclaimant’s work-related injury but rather treated a chronic, pre-existing \ncondition for which the respondents are not responsible.   \nIt is undisputed that the claimant’s injury in this matter falls within the \nprovisions set out in Ark. Code Ann. § 11-9-521.  Section 11-9-521(a) \nprovides that: \nAn employee who sustains a permanent \ncompensable injury scheduled in this section \nshall receive, in addition to compensation \nfor temporary total and temporary partial \nbenefits during the healing period or until the \nemployee returns to work, whichever occurs \nfirst, weekly benefits in the amount of the \npermanent partial disability rate attributable to \nthe injury, for that period of time.  \n  \n\nAUSBROOKS - H203317   32\n  \n \n \nIn the present case, the claimant’s employment was terminated on \nApril 8, 2022.  As discussed above, the reports of the physicians \ninterpreting the results of the MRIs agree that the claimant’s partial-\nthickness Achilles tendon tear had healed by August 1, 2022.  These \nphysicians agree that any ongoing issues were the result of chronic \ntendinosis rather than the acute injury in March 2022.  (See Resp. Ex. 1, \nPp. 10, 19-20).  The claimant’s healing period had therefore ended by \nAugust 1, 2022.  Because the December 2022 surgery performed by Dr. \nHead was not necessary, reasonable, or causally related to the claimant’s \nMarch 24, 2022 injury, and I do not agree with the Majority’s findings that \nthe claimant is entitled to any additional disability benefits arising from that \nsurgery, and any TTD benefits should be limited to the period between \nMarch 24 through August 1, 2022.  \nAccordingly, for the reasons stated above, I respectfully dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":52563,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H203317 MARK A. AUSBROOKS, EMPLOYEE CLAIMANT LEXICON, INC., EMPLOYER RESPONDENT TRISTAR CLAIMS MANAGEMENT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JANUARY 9, 2024","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["ankle","back","strain","fracture"],"fetchedAt":"2026-05-19T22:29:46.044Z"},{"id":"alj-H109609-2024-01-09","awccNumber":"H109609","decisionDate":"2024-01-09","decisionYear":2024,"opinionType":"alj","claimantName":"David Higby","employerName":"Tec, The Employment Co","title":"HIGBY VS. TEC, THE EMPLOYMENT CO. AWCC# H109609 JANUARY 9, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HIGBY_DAVID_H109609_20240109.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HIGBY_DAVID_H109609_20240109.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H109609 \n \nDAVID HIGBY, Employee        CLAIMANT \n \nTEC, THE EMPLOYMENT CO., Employer    RESPONDENT \n \nMIDWEST INS. CO., Carrier/TPA      RESPONDENT \n \n \n OPINION FILED JANUARY 9, 2024  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by MICHAEL C. STILES, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn  November  29,  2021,  the  claimant  filed  an  AR-C requesting  various  compensation \nbenefits  in  which he  alleged  an  injury  to  his  hands  on  September  22,  2021.  The  claim  was \naccepted  as  compensable,  and  benefits  were  paid.  The  claimant,  through  his  attorney,  Michael \nEllig,  requested  a  hearing  on  February  8,  2021.  Both  parties  agreed  to  mediate;  however, \nmediation  attempts  failed  as  Mr.  Ellig  lost  contact  with  the  claimant.  The  hearing  request  was \nwithdrawn on April 28, 2022. \nOn  August  29,  2022,  Mr.  Ellig  filed  a  Motion  to  Withdraw  as  Counsel,  which  the  Full \nCommission granted on September 9, 2022. No further action was taken regarding this claim. \n \n \n\nHigby – H109609 \n \n-2- \n On October 3, 2023, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. The respondents mailed the claimant a copy of the Motion \nto Dismiss and received no response from the claimant. A hearing was scheduled for December \n14,  2023.  Notice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt \nrequested  on  November  13,  2023.  United  States  Postal  Department  records  do  not  verify \nclaimant’s  receipt  of  the  Notice  of  Hearing.  On  December  7,  2023,  an  attempt  to  contact  the \nclaimant by telephone was made but the telephone number listed was no longer valid.  \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2946,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H109609 DAVID HIGBY, Employee CLAIMANT TEC, THE EMPLOYMENT CO., Employer RESPONDENT MIDWEST INS. CO., Carrier/TPA RESPONDENT OPINION FILED JANUARY 9, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. C...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:58:13.193Z"},{"id":"alj-H301211-2024-01-08","awccNumber":"H301211","decisionDate":"2024-01-08","decisionYear":2024,"opinionType":"alj","claimantName":"Wesley Givens","employerName":"J.E.L. Enterprises, LLC","title":"GIVENS VS. J.E.L. ENTERPRISES, LLC AWCC# H301211 January 8, 2024","pdfUrl":"https://www.labor.arkansas.gov/wp-content/uploads/GIVENS_WESLEY__H301211_20240108.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GIVENS_WESLEY__H301211_20240108.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301211 \n \nWESLEY C. GIVENS,  \nEMPLOYEE          CLAIMANT \n \nJ.E.L. ENTERPRISES, LLC,  \nd/b/a PLANT SERVICES OF  \nNORTH LITTLE ROCK,  \nEMPLOYER                 RESPONDENT \n \nAUTO OWNERS INS. CO., \nINS. CARRIER/TPA               RESPONDENT \n \n \nOPINION FILED JANUARY 8, 2024 \n \nHearing   conducted on   October   10,   2023, before  the  Arkansas  Workers’  Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas.  \n \nThe claimant was represented by the Honorable Laura Beth York, Rainwater, Holt & Sexton, Little \nRock, Pulaski County, Arkansas.  \n \nThe  respondents  were represented  by  the  Honorable Randy P. Murphy,  Anderson,  Murphy, \nHopkins, Little Rock, Pulaski County, Arkansas. \n \n \nINTRODUCTION \n \nIn the prehearing order filed August 2, 2023, the parties have agreed to the following \nstipulations, which they modified and affirmed on the record at the hearing:   \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2.  The  employer/employee/carrier-TPA  relationship  existed  with  the  claimant  at  all \nrelevant  times  including  December  15,  2022,  when  the  claimant  alleges  he \nsustained compensable injuries to his head, neck/cervical spine, lower back/lumbar \nspine, right shoulder, and right knee. \n \n3.    The claimant’s average weekly wage (AWW) was $442.45, which corresponds to \n   weekly indemnity rates of $295.00 for temporary total disability (TTD), and $221 \n   per week for permanent partial disability (PPD) rates if the claim is deemed \n   compensable. \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n2 \n \n4. The respondents have controverted this claim in its entirety.  \n \n5. The parties specifically reserve any and all other issues for future determination \n            and/or determination.   \n(Commission Exhibit 1 at 1-2; Reporter’s Transcript at 156-57). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were:                                             \n1. Whether the  claimant sustained  compensable  injuries  within  the  meaning  of  the \nArkansas Workers’ Compensation Act (the Act) to his head, neck/cervical spine, \nlower back/lumbar spine, right shoulder, and right knee, on December 15, 2022. \n \n2. If the claimant’s alleged injuries are deemed compensable, the extent to which he \nis entitled to medical and indemnity benefits. \n \n3. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; RT. 157). \n \n \n The  claimant  contends that  on  December  15,  2022, he  was involved  in  a  motor  vehicle \naccident (MVA) within the course and scope of his employment. The claimant contends he was \ndriving his employer’s vehicle when  the  MVA  occurred,  and  he sustained  injuries  to  his head, \nneck/cervical  spine, lower back/lumbar  spine,  right  shoulder, and  right  knee as  a  result  of  the \nsubject MVA. The claimant further contends the respondent-employer, J.E.L. Enterprises (JEL), \nfirst refused to file a claim, so the claimant filed a Form AR-C on February 23, 2023, and thereafter \nthe respondents denied the claim in its entirety. The claimant contends he was forced to obtain his \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n3 \nown medical treatment which included an MRI of his lumbar spine which revealed disc herniations \nat L3-4, L4-5, L5-S1; an MRI to his right shoulder which revealed tears; an MRI of his brain which \nrevealed a diffuse traumatic brain injury; and an MRI of his cervical spine which revealed a disc \nherniation at C5-6. The claimant contends he has undergone a rhizotomy for his cervical spine and \nhis lumbar spine injuries; an arthroscopic surgery to his right shoulder; he has been diagnosed as \nhaving post-concussion syndrome;  and  his  doctor  has  recommended  he  undergo  an  anterior \ncervical  discectomy  and  fusion  (ACDF)  at C5-6,  all  as  a  direct  result  of  the  subject  MVA. \nTherefore, the claimant contends he is entitled to payment of his medical and related expenses; to \nTTD benefits from December 16, 2022, through a date yet to be determined; and that his attorney \nis entitled to a controverted attorney’s fee. The claimant reserves the right to plead further upon \nthe completion of necessary and appropriate investigation and discovery; and specifically reserves \nany and all other issues for future determination and/or litigation. (Comms’n Ex. 1 at 2-3; RT. 157-\n58). \n The respondents contend the claimant was not performing “employment services” at the \ntime of the subject MVA. The respondents further contend the claimant cannot meet his burden of \nproof pursuant to the Act in demonstrating he sustained any compensable injuries within the course \nand scope of his employment with JEL. The respondents reserve the right to plead further upon \nthe completion of necessary and appropriate investigation and discovery; and specifically reserve \nany and all other issues for future determination and/or litigation. (Comms’n Ex. At 3; RT. 158). \nThe record consists of the hearing transcript and any and all exhibits contained therein or \nattached thereto, as well as the parties’ blue-backed briefs. \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n4 \n   STATEMENT OF THE CASE \nThe  claimant, Mr.  Wesley  C.  Givens  (the  claimant)  is 63  years  old.  He worked  for the \nrespondent-employer, Plant Services, from May 2016, to December 2022. He has worked in the \nplant servicing business for approximately 30 years, and has known Ms. Jane Ellen Lanning, the \nowner  of  Plant  Services, since  they worked  together  at Tipton-Hurst Florists in  the  1990s. The \nclaimant’s job at Plant Services required him to service (examine, water, feed, etc.) plants in the \nLittle Rock area, and he usually worked approximately three (3) days per week, with some days \nrequiring only a few hours of work. Plant Services provided the claimant a list of the customers \nwhose plants he was to service, but the claimant was in control of his daily route and schedule, \nand  the  claimant  used  his  own  vehicle,  which  he  had  purchased  from  Plant  Services,  for  work. \n(RT. 12-20).   \n The claimant testified that on Thursday, December 15, 2022, the day of the subject MVA, \nhe planned to service plants at the Park Plaza Mall, then travel to Corky’s BBQ on Bowman Road \nin West Little Rock, and from there to Parker Lexus which is near Corky’s. He said he had just \ncompleted servicing plants at the Park Plaza Mall when he was involved in a MVA at the corner \nof  West  Markham  and  North  McKinley  streets around  9:30  a.m. Concerning  how  the  MVA \noccurred the claimant testified he had just left the mall and was traveling on N. McKinley towards \nW. Markham. He said he came to a complete stop at the stop sign located at the intersection of N. \nMcKinley and W. Markham, and that as he was turning right onto W. Markham from N. McKinley \nanother car that was traveling west on W. Markham struck his car about midway on the driver’s \nside. The emergency room records from CHI St. Vincent Infirmary indicate the “impact speed was \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n5 \n< 30 mph.” (RT at 20-25; Claimant’s Exhibit 1 at 6; CX2 at 3-5). The claimant was wearing a seat \nbelt with both shoulder and lap restraints, and the collision did not cause his car’s airbag to deploy. \n(RT. 20-26; 88; 91). The claimant testified when the other car hit the driver’s side of his car, his \nbody was thrown to the right across the console and into his passenger seat. (RT 20-26; 88; 91).  \nImmediately after the MVA the claimant sent a group text to Ms. Lanning, the owner of \nPlant  Services,  and  to  his  co-worker,  Ms.  Teresa  Bailey,  notifying  them  of  the  accident.  The \nclaimant said all of the paperwork documenting his work routes and time were inside his car at the \ntime of the collision, and that Ms. Lanning and her partner, Ms. Wanda Yarber, came to the scene \nand retrieved items that were in the car. An ambulance was called and it took the claimant on the \nshort ride from the accident scene to the St. Vincent ER (the ER). Thereafter, Ms. Lanning and \nMs. Yarber went to St. Vincent to see about the claimant. (RT. 27).  \nThe claimant admitted on both direct and cross-examination he never reported a workers’ \ncompensation claim to Ms. Lanning based on the 12/15/2022 MVA. (RT. 58). He further admitted \nhe did not ask Ms. Lanning or her workers’ compensation carrier to provide him any medical \ntreatment, and that he obtained the subject medical treatment on his own. (RT. 58). Ms. Lanning \ntestified the claimant told her he was finished with work after he serviced the plants at Park Plaza \nMall, and he was headed home. The claimant testified he does not remember telling Ms. Lanning \nthis,  but  admitted  he  may  have  done  so.  (RT.  133-34;  RT.  61-63).  Ms.  Lanning  testified  that \nalthough the claimant was supposed to turn-in his route/time log sheets every day, he was not very \ngood at doing so, and it was not unusual for him to accumulate log sheets for a number of days \nbefore turning them in. (RT. 131-32). Ms. Lanning testified she did not recall seeing any log sheets \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n6 \nin the claimant’s car when she and Ms. Yarber retrieved the claimant’s personal items from the \ncar following the 12/15/2022 MVA. (RT. 127-34). The claimant was responsible for completing \nand turning in the log sheets; but the only log sheets introduced into evidence at the hearing stop \nat December 6, 2022, and reveal the claimant often was finished with the route in question by 10 \na.m. (Respondents’ Exhibit 1 at RT. 332-430;  RT.  64-70).  Ms.  Lanning  testified  she  does  not \ndispute the claimant serviced the plants at Park Plaza Mall immediately before the accident; but it \nis her testimony the claimant told her he was finished with work and was headed home at the time \nof the MVA. (RT. 132-33).     \nIn addition to describing the claimant’s pain as “minimal” and noting the absence of any \nbleeding,  the  ER  records of  12/15/2022 reveal  his  chief  complaints  were some  neck,  back,  and \nmuscle pain and tenderness, as well as left shoulder pain. (CX1 at 6-7). The claimant disputed the \naccuracy of the ER records and testified he told the ER personnel he had injured his right and not \nhis  left  shoulder.  (RT.  32).  The  ER  records  of  12/15/2022  also  note  that  examination  of  the \nclaimant’s other body systems were all normal (except for the complaints of pain and tenderness \nmentioned above);  that  the  claimant  was,  “Alert,  no  acute  distress”;  his  head  was, \n“Normocephalic”; his, “Pupils are equal, round, and reactive to light, extraocular movements are \nintact, normal conjunctiva”; and noted his musculoskeletal examination showed, “Normal ROM, \nnormal strength.” (CX1 at 7).  \nA CT test of the claimant’s cervical spine performed on the same day as the accident – \n12/15/2022 – and the CT report states the CT showed, “Normal alignment of the cervical spine”, \nand, “no fracture or subluxation.” (CX1 at 9). The CT report further states, “There is some \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n7 \ndegenerative spurring at C4-5, C5-6 and C6-7. Degenerative facet hypertrophy is present to a mild \ndegree at cervical levels.” (CX1 at 9). The ultimate “Impression” of the CT scan report states: \n“There is some degenerative change of the cervical spine but no fracture or subluxation.” (CX1 at \n9).  \nAlso, on the same day of the MVA – 12/15/2022 – the claimant underwent a CT scan of \nhis lumbar spine, the report of which states: “Normal  alignment  of  the  lumbar  spine  is  present. \nThere  is  some  anterior  degenerative  spurring  at  T11-12  through  L3-4.  Degenerative  facet \nhypertrophy is present at L3-4 through L5-S1. There is no fracture or subluxation.” (CX1 at 10). \nThe  “Impression”  section  concludes  the  lumbar  CT  report,  stating:  “Advanced  degenerative \nchange of the lumbar spine as discussed above but no fracture or subluxation.” (CX1 at 10).  \nOn  cross-examination  the  claimant,  who  has  participated  in  rodeos  through  the  years, \ndenied ever having injured his right shoulder while rodeoing, and he denied he had been taking \nany medication for his right shoulder before the 12/15/2022 MVA. He admitted he did wear a back \nbrace on his lower back even before the subject MVA, but he said he did so, “to help just so I \ndidn’t have an injury.” (RT. 82-83). The claimant also said he sometimes wore a knee brace when \nhe needed to do so. (RT. 83). \nFinally, on the same day as the MVA – 12/15/2022 – the claimant underwent an AP and \nlateral  X-ray  of  his  left,  not  his  right,  shoulder.  The  X-ray  report  states  the  findings  of  this \ndiagnostic test as follows: “No dislocation is identified. No arthritis is noted. No suspicious \nperiosteal  reaction  or  unexpected  opaque  foreign  body  is  seen.”  (CX1  at  11). Although  the \nclaimant testified, he told the ER physician it was his right, and not his left, shoulder which was \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n8 \ninjured, there exists no mention in any of the ER records the claimant objected to the X-ray of his \nleft shoulder, or that he requested the physician examine and take an X-ray or perform any other \ndiagnostic  tests,  on  his  right  shoulder.  (RT.  32;  CX1  at  6-11). An  X-ray  report  from  the  Cabot \nEmergency Hospital of the claimant’s right shoulder performed on 1/28/2023 – over one (1) month \nafter the subject 12/15/2022 MVA found:  \nIMPRESSION: \n1. No fracture or dislocation of the right shoulder.  \n2. Osteoarthritis of the acromioclavicular and glenohumeral joints noted. \n(CX1 at 42).     \nThe  MVA  occurred  at  approximately  9:30  a.m.  on  Thursday,  12/15/2022  and,  after  the \nclaimant  was  examined  and  underwent  the  aforementioned  diagnostic tests, he  was  discharged \nfrom the hospital with no further treatment recommended at 12:02 p.m. the same day as the MVA \n– 12/15/2022. (CX1 at 8; RT. 27). \nThe claimant testified that after his immediate release from the hospital over the course of \nthe next few days is pain worsened. (RT 33-35). He said he began peeing blood and could not eat. \n(RT. 35).  The  following  Monday,  12/19/2022 (after  the  MVA  which  occurred  on  Thursday, \n12/15/2022), the claimant said he was walking down the hallway at home when his legs suddenly \ngave out. He said he was able to drag himself to his front door and open it, as he knew that Jane \nLanning was coming to pick him up soon. When Ms. Lanning arrived, she called an ambulance. \n(RT. 36). This time, the ambulance took the claimant to Baptist Hospital, where he was examined \nand given a catheter and, once again, immediately discharged to return home without any further \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n9 \ntreatment recommended. (RT. 35-38; CX1 at 20-30).  \nOn March 31, 2023, the claimant underwent arthroscopic surgery on his right, not his left, \nshoulder surgery and, according to his testimony, his right shoulder recovered well following the \nsurgery. The claimant testified that he also underwent a lumbar laminectomy on August 17, 2023, \nby Dr. Boddu and is still receiving follow-up treatment. Claimant testified that Dr. Boddu has also \nrecommended  a  cervical  fusion  to  be  performed  after  he  recovers  from  the  lumbar  surgery.   \nAccording to the claimant, while he remains symptomatic, he is reluctant to have another surgery \nand will seek a second opinion. (RT.   \nOn 1/23/2023 – again over one (1) month after the subject MVA – of his own accord the \nclaimant presented himself to Kay Lynn Brunt, PA-C on his own when he was not contacted by a \nworkers’ compensation adjuster. Brunt noted that the claimant presented with post-concussion \nsymptoms, low back, neck, and right shoulder complaints. (CX1 at 31-40; RT. 199-209). An MRI \nof the claimant’s brain at that time revealed:    \n1. Multiple T2 and FLAIR hyperintense foci in bilateral frontal, parietal, parietooccipital \nwhite matter and pons, suggestive of UBOs (unidentified bright object) / non-specific \nlacunes. Periventricular white matter hyperintensity. These can be seen in patients \nwith chronic small vessel ischemic disease or can be seen in patient with headaches. \nPlease correlate clinically.  \n  \n2. Mild cerebral and cerebellar atrophy. \n  \n3. Partially empty Sella. \n  \n4. Mild tortuosity of the cavernous portions of both the internal carotid arteries. \n  \n5. Incidental note is made of minimal mucosal thickening in bilateral mastoid air cells.  \n \n6. Mild mucosal thickening in ethmoid air cells and maxillary sinuses.  \n \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n10 \n(CX1, 45-52; RT; 213-220). \n \nThe claimant testified on cross-examination he had looked for an attorney to represent him \nin a third-party lawsuit against the driver of the other car involved in the 12/15/2022 MVA which \nis the subject of this claim for workers’ compensation benefits, and testified the Rainwater, Holt & \nSexton law firm (the Rainwater Firm) was representing him in the matter and that they already had \nfiled a third-party lawsuit against the other driver on his behalf. The claimant testified that after he \nretained the Rainwater Firm, his lawyer set-up an appointment with a doctor, who had then referred \nhim to other doctors. (RT. 77-78).     \n \nDISCUSSION \n \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n9-704(c)(3) (2023 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n11 \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987). \nAll claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.  \nThe  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible given  the  totality  of  the  credible  evidence  of  record. Minnesota Mining & Mfg’ing v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n \n \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n12 \nEmployment Services \nBefore the issue of compensability is addressed, the threshold issue to be decided in this \nclaim is whether the claimant was engaged in “employment services” at the time of the subject \nMVA. Ark. Code Ann. Section 11-9-102(4)(B)(iii) (2021 Lexis Repl.) specifically excludes from \nthe definition of “compensable injury” an “injury which was inflicted upon the employee at a time \nwhen   employment   services   were   not   being   performed....” An   employee   is   performing \n“employment services” when he or she “is doing something  that  is generally  required  by  her \nemployer.” White v. Georgia-Pacific Corp., 339 Ark. 474,478, 6 S.W.3d 98, 100 (1999) (Emphasis \nadded). The  test our  appellate  courts  have  landed  on  in determining  whether an employee  was \nperforming employment-related services at the time of an injury is, “whether the injury occurred \nwithin the time and space boundaries of the employment, when the employee [was] carrying out \nthe employer’s purpose or advancing the employer’s interest directly or indirectly.” Pifer v. Single \nSource Trans., 347 Ark. 851, 69 S.W.3d 1 (2002) (Bracketed material and emphasis added); and \nCurtis v. Lemna, 2013 Ark. App. 646, 430 S.W.3d 180 (Ark. App. 2013). \nIn summary, Arkansas’s appellate courts have interpreted the term “employment services” \nas performing  a  duty(ies) the  employer  generally  requires,  and  that  benefit  the  employer  in  a \ntangible way. See, Pfifer and Curtis, supra. In other words, our appellate courts use the same test \nto determine whether an employee is engaged in “employment services” at the time of an alleged \nwork incident as they do when determining whether an employee was acting “within the course \nand scope” of  their  employment. Id. The  test  is whether the claimant’s alleged injury occurred \nwithin the time and space boundaries of the employment, when the employee was carrying out the \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n13 \nemployer’s purpose or advancing the employer’s interest directly or indirectly. Id. \nLikewise, Arkansas workers’ compensation law has long held that an employee traveling \nto  and  from  work  is  generally  said not to  be  acting  within  the  course  of  employment. Olsen \nKimberly Quality Care v. Pettey, 328 Ark. 381, 944 S.W.2d 524 (1997). This “going and coming” \nrule ordinarily precludes a claimant from receiving workers’ compensation benefits when he is \ntraveling to or coming from his place of employment. Id. Of course, the rationale behind this rule \nis that an employee is not within the course of employment while traveling to or from his job. Id. \nThe threshold  test  of  whether  or  not  an  injury(ies)  may  be  deemed  work-related is  whether  the \ninjury(ies) occurred, “within the time and space boundaries of employment, when the employee \nwas carrying out the employer’s purpose or advancing the employer’s interest either directly or \nindirectly.” White v. Georgia-Pacific Corp., 339 Ark. 474, 6 S.W.3d at 100 (1999).  \nBased on the applicable law as applied to the relevant facts herein, I find the claimant has \nfailed to meet his burden of proof in demonstrating he was engaged in “employment services” at \nthe time of the subject 12/15/2022 MVA. \n First, the claimant’s own testimony in this regard is revealing. Indeed, the claimant’s own \ntestimony lends support to a finding he was not in fact engaged in employment services at the time \nof the incident. The claimant testified at the hearing he had completed servicing his clients at Park \nPlaza Mall and was traveling in his vehicle when the accident occurred. Significantly, the claimant \nadmitted he “might have” told Jane Lanning at the hospital that he was done working for the day \nand was going home at the time the MVA occurred. Concerning this issue, the claimant testified \nas follows: \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n14 \nQ. Let me state it this way: did you tell Jane and Wanda that you were done for \nthe day and you were going home? \nA. Not that I remember. \nQ. Okay. Could you have said that to them at that time? \nA. I might’ve but I cannot remember it. \n(RT. 59, Line 24; RT. 60, ln. 5). \n \n \n Second,  the  evidence  at  the  hearing  established the  claimant  was  required  to  keep  daily \nlogs documenting his service calls. The daily logs, which were introduced into the hearing record, \nshowed that the last daily log provided by the claimant is dated December 6, 2022. The claimant \ntestified he  kept  the  daily  logs,  along  with  other  items,  in  his  vehicle  before  eventually  turning \nthem into the office. The credible evidence reveals Ms. Lanning and Ms. Yarber cleaned-out the \nclaimant’s car  after  the  MVA, and  that Ms.  Lanning delivered put  the  items  that  were  in  the \nclaimant’s  car in  plastic  containers,  or  totes,  and  delivered  them to  the  claimant’s  address. \nConcerning the issue of the lack of evidence from the log books demonstrating where the claimant \nmay have been going after he left the mall at the tome of the 12/15/2022 MVA, once again the \nclaimant’s own testimony is revealing: \nQ. Okay. I understand. But on this particular date you would have had, in addition \nto the other items that you described, you said groceries and water and snacks, \na clipboard – \n \nA. Right. \n \nQ. -- with your daily logs.  \n \nA. Right. \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n15 \n \nQ. Okay.  And you don’t’ know what happened to those daily logs? \n \nA. No. \n \nQ. All right. Now, while you were at the emergency room or at the hospital, Jane \nand Wanda cleaned out all your personal items from the car, right? \n \nA. Mm-hm. \n \nQ Yes? \n \nA. Yes. \n \nQ. And they were placed in two plastic storage containers. Is that your \n    understanding? \n \nA. Yes. \n \nQ. Did you see those plastic storage containers? \n \nA. Yes. \n \nQ. And  when  Jane  and  Wanda  drove  you  home – this  was  when  you  were  still \nliving with Dr. Richard Jordan, right? \n \nA. Right. \n \nQ. Okay. The carried  those  items,  including  the  plastic  containers,  down  to  the \nbasement and left them there. \n \nA. Yes. \n \nQ. Have you gone back in to look at those plastic containers – \n \nA. Yes, -- \n \nQ. -- to see – \n \nA. -- I have, and the paperwork was not there. \n \nQ. Okay. \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n16 \n \nA. And stuff got water on it and you couldn’t read it because it got ruined from \nthe water that was in the totes. \n \nQ. Were the daily logs in there? \n \nA. It was just white pieces of paper that I couldn’t read. \n \nQ. Okay. All right. Could those have been the daily logs destroyed? \n \nA. It could have been the daily logs. \n \n(RT. 61, Line 12 – RT 63, ln. 5). \n \n \n Third, Ms. Lanning, the owner of Plant Services, testified credibly at the hearing regarding \nthe claimant’s  employment  history,  as  well  as  the events and  conversations  that  occurred \nimmediately after the 12/15/2022 MVA. Ms. Lanning confirmed that the last daily log the claimant \nturned-in turned  in was for  the  work  day  of December  6,  2022. (RT.  132.).  Concerning  her \nconversation  with  the  claimant at  the  ER immediately  following  the  MVA  as  to  where  he  was \ngoing at the time of the accident on 12/15/2022, Ms. Lanning testified as follows: \nQ. And did Mr. Givens make any statement about where he had been or where he \nwas going or what his activities were? \n \nA. He  said – he  said  that  he  was  leaving  Park  Plaza  to  go  home  and  out  of \nnowhere, boom, this lady just hit him. \n \nQ. Okay.    He told you he had been to Park Plaza? \n  \nA. Mm-hm. \n \nQ. Is that right? \n \nA. Yes. \n \nQ. You don’t have any reason to dispute that, do you? \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n17 \n \nA. No. \n \nQ. Okay. \n \nA. They [Park Plaza] have a sign-in log. I’ve – I’ve seen it. \n \nQ. All right. But he [the claimant] told you he was leaving there and going home? \n \nA. Yes. \n \nQ. Okay.    Did he ever say anything else about the accident other than boom and \nthere was an impact? \n \nA. Other than, you know, that his shoulder was sore. \n \nQ. Okay. \n \nA. He complains after the accident where his shoulder was sore? \n \nQ. Yes, his left shoulder. \n \n(RT. 132, ln. 12 – RT 133, ln. 20) (Bracketed material added). \n \n \n The threshold issue in this case is whether the claimant has met his burden of proof \nin  demonstrating  he  was  engaged  in  performing  employment  services  at  the  time  of  the \nsubject 12/15/2022 MVA. This burden is the claimant’s, and the claimant alone. Prior to \nthe passage of Act 796 the tie went to the runner: i.e., the law required the fact finder to \ngive the claimant “the benefit of the doubt” when evidence was unclear and/or ambiguous, \netc. That is not the case under Act 796. \n        In this case, at best the claimant’s testimony concerning the employment services \nissue is unclear and contradictory. See, supra. At worst, the preponderance of the evidence \nreveals the claimant admitted he told, or he “might have” told, Ms. Lanning he had finished \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n18 \nhis work for the day the claimant admitted to Jane Lanning following the accident that he \nhad  completed  work  and  was  going  home  at  the  time  of  the  accident. On  these  facts  it \nwould constitute sheer speculation and conjecture to find the had met his burden of proof \nas  required  by  Act  796  in  demonstrating  he  was  engaged  in  employment  services  at  the \ntime of the 12/15/2022 MVA; and speculation and conjecture cannot and do not support a \nclaim for benefits pursuant to the Act. See, Deana, supra.  \nCompensability \nMoreover, even if the claimant had met his burden of proof on the threshold issue herein, \nthe  preponderance  of  the  evidence reveals  he  has  failed  to  meet  his  burden  of  proof  in \ndemonstrating  any and/or  all of  the  alleged  injury(ies) to  his  neck/cervical  spine,  lower \nback/lumbar spine, and/or his left shoulder were related to the 12/15/2022 MVA. In order to find \nand and/or all of the claimant’s alleged injuries compensable based on these facts a factfinder must \nignore the applicable law and contort the clear medical evidence of record.  \nFor  any  specific-incident  injury  to  be  compensable,  the  claimant  must  prove  by  a \npreponderance of the evidence that his injury: (1) arose out of and in course of his employment; \n(2) caused internal or external harm to his body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence. Ark.  Code  Ann.  §  11-9-102(4); \nCossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, 687 (Ark. \nApp.  2009). Of  course,  the  claimant  bears  the  burden  of  proving  the  compensable  injury  by  a \npreponderance of the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.  \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n19 \n“Objective findings” are those findings which cannot come under the voluntary control of \nthe patient. Ark. Code Ann. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, \nat  80  250  S.W.3d  263,  at  272 (Ark.  App.  2007).  Objective  findings, “specifically exclude such \nsubjective complaints or findings such pain, straight-leg-raising tests, and range-of-motion tests.” \nBurks  v.  RIC,  Inc.,  2010  Ark.  App.  862  (Ark.  App.  2010).  Objective  medical  evidence  is  not \nessential to establish a causal relationship between the work-related accident and the alleged injury \nwhere objective medical evidence exists to prove the existence and extent of the underlying injury, \nand a preponderance of other nonmedical evidence establishes a causal relationship between the \nobjective  injury  and  the  work-related  incident(s) in  question. Flynn  v.  Southwest  Catering  Co., \n2010  Ark.  App.  766,  379  S.W.3d  670  (Ark.  App.  2010). Moreover,  the  claimant  must  prove  a \ncausal relationship exists between her employment and the alleged injury. Wal-Mart Stores, Inc., \nv. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. App. 2002) (citing McMillan v. \nU.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (Ark. App. 1997)).  \nConcerning the proof required to demonstrate the aggravation of a preexisting condition, \nour appellate courts have consistently held that since an aggravation is a new injury, a claimant \nmust prove it by new objective evidence of a new injury different than the preexisting condition. \nVaughn  v.  Midland  School  Dist.,  2012  Ark.  App.  344  (Ark.  App.  2012)  (citing Barber  v.  Pork \nGrp., Inc., 2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. \n130, 382 S.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 \n(Ark.  App.  2010)  (Emphases  added.).  Where  the  only  objective  findings  present  are  consistent \nwith prior objective findings or consistent with a long-term degenerative condition rather than an \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n20 \nacute  injury,  this  does  not  satisfy  the  objective  findings  requirement  for  the  compensable \naggravation  of  a  preexisting  condition  injury. Vaughn,  2012  Ark.  App.  344,  at  6  (holding  that \nArkansas courts have interpreted the Act to require “new objective medical findings to establish a \nnew injury when the claimant seeks benefits for the aggravation of a preexisting condition”); \nBarber,  supra (affirming the Commission’s denial of an aggravation of a preexisting condition \nclaim where the MRI findings revealed a degenerative condition, with no evidence of, and which \ncould not be explained by, an acute injury) (Emphases added.). In Mooney, 2010 Ark. App. 600 at \n4-6,  378  S.W.3d  at  165-66 (Ark. App. 2010), the court affirmed the Commission’s decision \ndenying a back injury claim where the objective evidence of an injury - including muscle spasms, \npositive EMG test results, and spinal stenosis revealed on an MRI - were all present both before \nand after the date of the alleged aggravation injury. (Emphasis added). \n  First,  while  I  found  the  claimant  to  be  an  amiable  person,  based  on  the  entirety  of  his \ndemeanor  on  the  witness  stand;  the  rather  evasive  way  he  answered  seminal  questions; and his \ntendency in his testimony to exaggerate symptoms in such a way that was obviously inconsistent \nwith the clear preponderance of the relevant objective medical evidence of record, I did not find \nthe claimant’s testimony to be credible or reliable.  \nIndeed, the claimant’s allegation he developed symptoms of an alleged brain injury over \none (1) month after the 12/15/2022 MVA, especially as compared to the brain MRI which shows \nno such condition and is within the range of normality for a person of his age, provides just one \n(1) example of how the claimant’s tendency towards shaping his testimony in such a way so as to \nmake it obviously self-serving, inconsistent with the objective medical evidence and, quite simply, \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n21 \nincredible. The claimant did not allege any head trauma; and having initially not thought he had \nlost consciousness after the MVA at some point apparently began to think he had done so. The \nclaimant’s head never struck anything; he never complained of any head trauma; and although his \ncar apparently was “totaled” for insurance purposes (which simply means the cost to repair the \ndamage to the car exceeds the “Blue Book”/fair market value (fmv) of the car), the claimant had \nno evidence of head trauma when he was examined at the St. Vincent ER.      \nEven the claimant’s testimony as to what happened to him/his body when the car struck \nthe driver’s side of his vehicle defies the laws of physics. The claimant testified when the car struck \nthe driver’s side of his car, he was thrown across the console and into the passenger seat of his \nown car. Again, if this were true it would contradict the physical laws of the universe, specifically \nNewton’s laws of motion. Pursuant to the conclusively proved and well-settled scientific laws of \nmotion, when a car strikes another car from the left side – i.e., the driver’s side of the car (at least \nas cars are manufactured in the United States, with the steering wheel being on the left side of our \nvehicles) – anybody inside of a car which was struck on the left side would move to the left, and \nnot to the right. This is not only common sense, it is something we all learned in 9\nth\n grade physics \nclass when we learned about Newton’s Laws of Motion; here, specifically, Newton’s First Law of \nMotion, relating to inertia. (If one requires a source for this common sense, fundamental law of \nnature, See, e.g., The Encylopedia Britannica, https://www.britannica.com, “Newton’s Law’s of \nMotion,” as well as Sir Isaac Newton’s Philosophiae  Naturalis  Principia  Mathematica,  first \npublished by Edmond Halley, of Halley’s Comet fame, at  his  own  cost in  1687;  and  as The \nMathematical Principles of Natural Philosophy, 1729, 3\nrd\n Edition).        \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n22 \nSecond,  and most significantly,  the medical  record  is  grossly  insufficient  of  objective \nevidence which demonstrates any of the claimant’s obviously osteoarthritic, age-related conditions \nwere caused and/or  aggravated by the subject MVA. The  claimant wore  a right knee  and lower \nback brace from time to time even before the MVA; and none of the diagnostic tests the claimant \nunderwent on the day of the accident, Thursday,  12/15/2022 – the CT scans of his cervical and \nlumbar spine, as well as an X-ray of, not his right but his left, shoulder showed no abnormalities \nwhatsoever other than those related to preexisting, age-related osteoarthritis and other age-related \nconditions  which  clearly  are  not  compensable  pursuant  to  the  Act. See,  Vaughan,  Barber, and \nMooney,  supra. None  of  the  aforementioned  and  cited/quoted  objective,  thorough,  appropriate, \nand  relevant  diagnostic  tests  revealed  any  evidence  of  a  new  or  acute  injury  resulting  from  the \nMVA in question. The medical record is devoid of any such objective medical evidence of a new \ninjury/aggravation  which  would  have  necessitated  the  two  (2)  surgeries  the  claimant  has  had  to \ndate (one on his right shoulder and a second – a lumbar laminectomy – on his lumbar spine), nor \nthe apparently recommended cervical surgery for which the claimant said he intends to obtain a \nsecond opinion.  \nFinally, it is noteworthy that on the same day of the accident – Thursday, December 15, \n2022 – after  a  couple  of  hours  undergoing  diagnostic  tests  at  the  hospital  the  claimant  was \ndischarged with no recommendation for any treatment regimen. While the claimant was cognizant \nand aware enough following the accident to send his long-time friend and employer a group text \nadvising her he had been involved in an MVA, he testified under oath he “might have” told her he \nhad finished his work for the day and was on his way home at the time the MVA occurred, and he \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n23 \nnever inquired of her about filing or asked that she file a workers’ compensation claim or otherwise \nassist him in obtaining medical treatment (although the evidence does seem to reflect Ms. Lanning \ntold her insurance agent about the MVA). Instead, he looked into finding an attorney to file a third-\nparty  lawsuit  against  the  other  driver.  In  their  post-hearing brief, the respondents argue  the \nclaimant’s medical treatment in late January 2023 was “directed” by his attorney in the third-party \nlawsuit, was “delayed” and, therefore, not reasonably necessary treatment related to the MVA \n(presuming the MVA and the alleged injuries were “compensable” within the Act’s definition). \n(Respondents’ Brief at 8; and 7).  \nBased  on  the  aforementioned  law  as  applied  to  the  facts  of  this  case,  I  am  compelled  to \nfind that even if the claimant had met his burden of proof with respect to the “employment \nservices”  issue,  he  has failed  to  meet  his burden  of  proof  in  demonstrating he  injured  his \nneck/cervical spine, lower back/lumbar spine, or his right shoulder and/or right knee in the subject \n12/15/2022 MVA. If the claimant has a legal remedy arising out of the 12/15/2022 MVA, it is in \nthe third-party lawsuit he has filed, and not under Act 796 of 1993. \n \n      Therefore, for all the aforementioned reasons I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The stipulations contained in the prehearing order filed August 2, 2023, which the parties \nmodified and affirmed on the record at the hearing, hereby are accepted as facts. \n \n2. The claimant has failed to meet his burden of proof in demonstrating he was engaged in \nthe performance of employment services at the time of the subject December 15, 2022, \nMVA.    \n \n3. The  claimant  has failed  to  meet  his  burden  of  proof  in  demonstrating  he  sustained a \n\nWesley C. Givens, AWCC No. H301211 \n \n \n \n24 \ncompensable injury(ies) to his lower back/lumbar spine, neck/cervical spine, and/or his \nright shoulder and/or his right knee in the 12/15/2022 MVA.     \n \n4. The claimant’s attorney is not entitled to an attorney’s fee on these facts. \n \n     This claim is hereby denied. If they have not done so already the respondents shall pay the \ncourt reporter’s invoice within twenty (20) days of their receipt of this opinion.  \nIT IS SO ORDERED.  \n  \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \nMP/mp","textLength":42229,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301211 WESLEY C. GIVENS, EMPLOYEE CLAIMANT J.E.L. ENTERPRISES, LLC, d/b/a PLANT SERVICES OF NORTH LITTLE ROCK, EMPLOYER RESPONDENT AUTO OWNERS INS. CO., INS. CARRIER/TPA RESPONDENT OPINION FILED JANUARY 8, 2024 Hearing conducted on October 10, 2023, before...","outcome":"denied","outcomeKeywords":["affirmed:1","modified:1","granted:1","denied:3"],"injuryKeywords":["neck","cervical","back","lumbar","shoulder","knee","concussion","fracture"],"fetchedAt":"2026-05-19T22:58:11.095Z"},{"id":"alj-H206949-2024-01-05","awccNumber":"H206949","decisionDate":"2024-01-05","decisionYear":2024,"opinionType":"alj","claimantName":"Glenda Lurry","employerName":"Coca-Cola Consolidated, Inc","title":"LURRY VS. COCA-COLA CONSOLIDATED, INC. AWCC# H206949 JANUARY 5, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Lurry_Glenda_H206949_20240105.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Lurry_Glenda_H206949_20240105.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206949 \n \n \nGLENDA FAY LURRY, EMPLOYEE CLAIMANT \n \nCOCA-COLA CONSOLIDATED, INC., \n EMPLOYER RESPONDENT \n \nINDEMN. INS. CO. OF NO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 5, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  October  27,  2023,  in \nMarion, Crittenden County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr.  Rick  Behring,  Jr.,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On October 27, 2023, the above-captioned claim was heard in Marion, Arkansas.  \nA prehearing conference took place on August 28, 2023.  The Prehearing Order entered \nthat  day  pursuant  to  the  conference  was  admitted  without  objection  as  Commission \nExhibit 1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations,  issues,  and \nrespective contentions were properly set forth in the order. \nStipulations \n At the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  They are the following, which I accept: \n1. The Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nLURRY – H206949 \n \n2 \n2. The  employee/employer/carrier  relationship existed  among  the  parties  on \nJuly 7, 2022, when Claimant sustained a compensable injury to her lower \nback by specific incident. \n3. Respondents accepted this claim as a medical-only one and paid benefits \npursuant thereto. \n4. Claimant’s    average    weekly    wage of    $1,045.64    entitles    her    to \ncompensation rates of $697.00/$523.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether Claimant is entitled to additional medical treatment. \n2. Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from \nOctober 22, 2022, to a date yet to be determined. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant contends that she is entitled to  additional benefits  in connection \nwith her stipulated compensable lower back injury. \n Respondents: \n1. To date, all benefits to which Claimant is entitled have been paid and have \nnot been controverted. \n\nLURRY – H206949 \n \n3 \n2. Respondents accepted this claim as a compensable, medical-only claim. \n3. To date, Respondents have paid for all reasonable and necessary medical \ntreatment.    Dr.  John  Brophy  released  Claimant  at  maximum  medical \nimprovement  with  no  work  restrictions,  no  impairment,  and  an  additional \nrecommended treatment on September 26, 2022. \n4. Respondent   employer   provided   work   within   Claimant’s   restrictions \nthroughout  this  claim.    She  returned  to  work  for  Respondent  employer.  \nClaimant was released to return to work without restrictions on September \n26, 2022.  Respondent employer offered working within these restrictions, \nbut  Claimant  has  failed  and/or  refused  to  return  to  work.    To  date, \nRespondents  are  not  aware  of  any  work  restrictions  after  September  26, \n2022.    Therefore,  they  are  not  responsible  for  any  temporary  disability \nbenefits related to this claim pursuant to Ark. Code Ann. § 11-9-526 (Repl. \n2012). \n5. Claimant   requested   a   change   of   physician   to   Dr.   Jordan   Walters.  \nRespondents authorized the initial visit with Dr. Walters on December 27, \n2022.  They have, however, taken the position that no additional treatment \nis  reasonable  and  necessary  in  relation  to  the  compensable  back  injury \nsustained on July 7, 2022. \n6. In  the  alternative,  if  it  is  determined  that  Claimant  is  entitled  to  any \nadditional indemnity benefits, Respondents hereby request a setoff for all \n\nLURRY – H206949 \n \n4 \nbenefits  paid  by  Claimant’s  group  health  carrier,  as  well  as  all  long  and \nshort-term disability and unemployment benefits received by her. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony of  Claimant  and  to  observe her  demeanor,  I hereby  make  the  following \nfindings  of  fact  and conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  § 11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has not  proven  by a  preponderance  of  the evidence  that she is \nentitled  to  additional  treatment  of  her  stipulated  compensable  lower  back \ninjury. \n4. Claimant  has not  proven  by a  preponderance  of  the evidence  that she is \nentitled  to  temporary  total  disability  benefits  for  any  period  in  connection \nwith her stipulated compensable lower back injury. \nADJUDICATION \nSummary of Evidence \n Claimant  was  the  sole  witness.  Along  with  the  Prehearing  Order  discussed \nabove,  the  exhibits  admitted  into  evidence  were  Respondents’  Exhibit  1, a  compilation \nof  Claimant’s  medical  records,  consisting  of  one  index  page  and  20  numbered  pages \n\nLURRY – H206949 \n \n5 \nthereafter;  Respondents’  Exhibit  2,  non-medical  records,  consisting  of  one  index  page \nand ten  numbered  pages  thereafter;  and  Respondents’  Exhibit  3,  a  DVD  containing \nsurveillance footage of Claimant. \nA. Additional Treatment \n Introduction.  As the parties have stipulated, Claimant sustained a compensable \ninjury  to  her  lower  back  on  July  7,  2022.    In  this  action,  she  is  seeking,  inter  alia, \nadditional treatment of her back.  Respondents dispute that she is entitled to additional \ntreatment of any type. \n Evidence.    Claimant  is 61  years  old  and  has  a  high  school  diploma.    She  has \ncompleted  some  college,  and  finished  a  food  service  course  of  study  at  vocational \nschool.  Her  career  history  has  been  devoted  exclusively  to  physical  labor—hotel \nhousekeeping, manufacturing, and warehouse work. \n Claimant’s  testimony  was  that  she  went  to  work  for  Respondent  Coca-Cola  in \nNovember  2010.    She  was  employed  there  as  a  multi-machine  operat  or.    She \nexplained: \nI was operating like two, three different machines . . . I was running Odmi, \nand the Odmi is where the full bottle of products comes in, and I was just \nwalking  for packaging it  to be  shipped out  to  the  warehouses  .  .  .  I  ran  a \nHigh Cone, and the High Cone . . . [is a] machine where they had the little \nplastic that holds the six-packs and the eight-packs together for six-packs \nand eight-packs. \n \n The following exchange occurred: \nQ. Now back on July 7 of last year, how did you hurt your [back]? \n \n\nLURRY – H206949 \n \n6 \nA. Pushing a big—pushing a big pallet of trays . . . with a hand jack . . \n. a little jack that you—you have to lift—pump it up and get ready to \npush stuff, yeah. \n \n. . . \n \nQ. Okay.  Was it loaded down with Coca Cola products? \n \nA. It was loaded down with a big bale of trays. \n \nQ. A big bale of trays, okay.  Do you have any idea how much the load \nthat was on the jack weighed? \n \nA. They’ll probably weigh about three to five hundred pounds. \n \n. . . \n \nQ. Okay,  all  right.    Now,  you  were  pushing  it,  and  did  you  feel  some \nproblem with your back? \n \nA. I  was  pushing  it,  and  it  got  stuck  on  the  machine  that  was  next  to \nmy  machine.    It  got  stuck.    Somehow—I  know  I’ve  pushed  that \npallet a thousand times, but somehow that day it got stuck on—on \nthe  next  machine  on  the  cone.    And  I  pulled  it  back  and  tried  to \nstraight[en] it up, and when I pushed it forward, it felt like I stepped \non a[n] electrical wire or something. \n \n Per  Claimant,  she  reported  her  injury  to  her  employer  and  was  thereafter  taken \nby  ambulance  to  Baptist  Health  in  Little  Rock.   Later,  she  went  to  Concentra  in \nMemphis, and then to Dr. Brophy. \n The following exchange took place: \nQ. So what kind of treatment have you had on your back? \n \nA. I haven’t had any—the only thing I ever had was I had like a couple \nof—I  guess  they  call  them  steroid  injections,  steroid  shots.    That’s \nall I had really. \n \nQ. All  right.    You’ve  got  some—you’ve  had  some  steroid  injections.  \nDid they help you? \n\nLURRY – H206949 \n \n7 \n \nA. No, no. \n \nShe  has  been  prescribed  muscle  relaxers.    But  Claimant’s  testimony  was  that  they \nafforded  her  no  relief,  either.    When  asked  what  treatment  she  was  seeking  in  this \nproceeding,  she  answered:   “Something  to  just  make  it  better.”  Claimant  received  a \none-time change of physician to Dr. Jordan Walters.  However, Respondents refused to \ncover any treatment that Walters recommended, which included injections, as a result of \nhis single visit with Claimant, which occurred on December 27, 2022.  No treatment has \nbeen covered since then.  Thereafter, she treated with Dr. Mohamad Moughrabieh, her \nprimary  care  physician.    While  Dr.  Moughrabieh  has  made  referrals  in  order  for  her  to \nreceive  additional  treatment  for  her  back,  she  has  been  unable  to  follow  through  on \nthem because she “couldn’t make the co-pay.”  Moughrabieh himself has not prescribed \nher  any  medication  for  her  compensable  injury.    She  has,  however,  been  taking \nGabapentin,  which  she  already  possessed.    Her  testimony  was  that  this  medication \n“helped, but in a way it did sometimes.” \n In describing her present back condition, Claimant related: \nIt’s  basically  the  same.   I  mean,  I  have  some  days  where  it’s  better  than \nothers  but  it’s—it’s  like—my  4  and  5,  it’s  like  it’s  just  something  just—I’m \nbreathing just getting there, and it radiates into my—into my thighs, and I \ndon’t  know  what  it  is.   I’ve  got  burning  and  pinching  and  stabbing  and \ngrabbing and dash all over my body.  It’s just like lightning or something is \nshooting  through my body, all  over my  body—I’m  talking about my  entire \nbody from my head to my feet.  It—I don’t know what it is . . . [m]y hand—\nmy  hands  go  dead.    They  go  numb,  five,  six  times  a  day,  and  just \nshooting,   burning,   throbbing   .   .   .   [m]y   feet,   my—I’m   talking   about \neverywhere. \n \n\nLURRY – H206949 \n \n8 \nClaimant likened the sensation to that caused by a toothache, and elaborated that  it is \npresent from her head to her toes, including all four limbs.  She rated her pain as being \n10/10 at times; at the time of the hearing, it was 8/10.  She did not take any Gabapentin \nbefore the hearing. \n Eventually,  she  ended  up  treating  with  Dr.  Douglas  Cannon  at  Campbell  Clinic.  \nSteroid injections were proposed; but she could not afford them.   From there, she was \nreferred for physical therapy.  But after appointments there in November and December \nof 2022, she ceased going because she could not afford her deductible.  She explained \nthat  she  did  not  ask  Respondents to  cover  this  treatment.    Regardless,  it  was  her \ntestimony that the therapy did not help. \n Claimant saw Dr. Brophy on three occasions:  in August 2022, then for a follow-\nup  visit,  and  finally  on  September  22,  2022,  after  she  underwent  an  MRI.    She \nacknowledged  the  Brophy  reviewed  the  MRI  and  did  not  see  any  herniation  or  nerve \nroot compression.  He was of the opinion that she did not need any other treatment of \nher  lower  back  concerning  the  injury  of  July  7,  2022.  It  was  his  recommendation  that \nthat she use her private insurance to discover whether she was suffering from an “occult \ninflammatory process.”  While she underwent a nerve conduction study of her arms and \nlegs, the results were normal. \n Claimant agreed that her deposition testimony is that she cannot bend at all.  But \nshe admitted  that  the surveillance footage  in  evidence  depicts  her bending over to get \ninto your Nissan Sentra automobile.  She explained: \n\nLURRY – H206949 \n \n9 \nAnd, yeah, you may have a little surveillance on me.  Yeah, I can—I can \nbend, but it’s going to be what I deal with after I bend.  Yeah, I can drive.  I \nmean,  I  don’t  have  no—I  live  alone.    I’ve  got  to  do  what  I  can  do  for \nmyself, then I’m not trying to become no handicap nobody. \n \n In 2001, she suffered a back injury while working for Wonder Bread.  As a result, \nshe  was  on  light  duty  for  approximately  four  months.    She  injured  her  back  again  in \n2019 as a consequence of a motor vehicle accident.  Her initial testimony was that at no \ntime  during  her  employment  for  Respondent  employer  did  she  seek  treatment  for  her \nback  before  the  July  7,  2022,  accident.    But  shown  the  reports of  multiple  visits  to  Dr. \nMoughrabieh,  where  she  presented  with  leg  and  lower  back  pain,  she  agreed  that  the \ntestimony was not correct.  Although those records reflect that the doctor prescribed her \nGabapentin for neuropathy, she denied being informed of this diagnosis. \n The medical records in evidence show that on March 23, 2015, Claimant went to \nDr. Moughrabieh and complained of non-radiating mild back pain.  She  told the doctor \nthat she “works a very strenuous job, lifting very heavy objects,  and constant bending.”  \nHe  assessed  her  as  having  lumbago  and  prescribed  a  Medrol  dose  pack.    Claimant \nreturned to him on May 22, 2018, and presented with worsening back pain that began \nthree  days  before  but  was  not  due  to  any  trauma  or  accident.    He  diagnosed  her  as \nhaving hip pain. \n On September 13, 2022, Claimant saw Dr. Brophy.  The report reads in pertinent \npart: \nHISTORY: \nMs. Lurry returns today for review of her lumbar MRI.  Her chief complaint \nis inferior lumbar pain.  She is a marginal historian, giving multiple different \ndescriptions  of  her  leg  symptoms.    She  does  describe  bilateral  buttock \n\nLURRY – H206949 \n \n10 \npain, left worse than right.  The leg pain seems to extend into the left, right \nand  interior  thigh,  sometimes  involving  the  tibialis  anticus.    As  best  as  I \ncan  tell,  the  back  pain  is  worse  than  the  leg  pain.    The  leg  pain  is \nintermittent  in  varying  distribution  of  her  left  leg  primarily.    Overall,  Ms. \nLurry reports absolutely no improvement in her back pain since her injury \napproximately  10  weeks  ago.    She  has  not  attempted  a  home  exercise \nprogram.  She is using low-dose ibuprofen.  She has remained at work on \na light duty status. Her regular job requires frequent heavy lifting. She has \nnot considered alternative employment. \n \n. . . \n \nPhysical Exam: \nThe patient is a 60-year-old black female who appears frustrated with her \nongoing symptoms.  Lower extremities—psoas, quadriceps, tibialis anticus \nand   gastrocnemius—5/5   with   encouragement.      Sensory—light   touch \nintact,  L3  through  S1.    Deep   tendon  remarnflexes—patellar  absent; \nAchilles absent.  Pulses—dorsalis pedis—2+.  Straight leg raise elicits left \nbuttock  pain  at  45  degrees.    There  is  also  increased  back  pain  with \ninternal   and   external   rotation   of   the   left   hip.      Back—no   pain   with \ncompression  or  rotation;  there  is  mild  tenderness  at  the  inferior  lumbar \nparaspinal muscles; no definite trigger point.  Gait—very slow, short steps. \n \nNeurodiagnostic Assessment[:] \nLumbar    MRI    11    September,    2022    demonstrates    mild    multilevel \nspondylosis  primarily  involving  the  facet  joints.    There  is  no  evidence  of \nHNP  [herniated  nucleus  pulposus]  or  definite  evidence  of  nerve  root \ncompression. \n \nImpression: \nLumbar myofascial pain associated with lumbar spondylosis. \n \nPlan: \nThe  results  of  the  MRI  and  clinical  situation  were  reviewed  in  detail  with \nMs.   Lurry.    In   my   opinion,   there   is   no   indication   for   surgical \nintervention  or  treatment  with  injections  at  this  time.  We  discussed \nthe  option  of  continued  treatment  with  Ibuprofen  up  to  800  mg  t.i.d.    We \ndiscussed   the   option   of   attempting   to   progress   a   home   endurance \nexercise  program.    Based  on  her  lack  of  improvement  over  the  last  two \nmonths, we  discussed  the  importance  of  scheduling  a  complete \nphysical   through   her   personal   insurance   to   rule   out   an   occult \ninflammatory process.  She is cleared to return to work today with a 30 \n\nLURRY – H206949 \n \n11 \npound  lifting  restriction.   She  will  be  cleared  to  return  to  work  at  full \nduty without restriction 26 September. \n \n(Emphasis added) \n Per  the  report  dated  November  21,  2022,  Claimant’s  EMG/NCS  of  her  lower \nlimbs  was “[n]ormal,”  with “[n]o  entrapment  neuropathy  or  peripheral  neuropathy”  and \n“[n]o lumbosacral radiculopathy.”  She underwent a nerve conduction study of her upper \nextremities on November 28, 2022.  The findings were:  “Mild median neuropathy at the \nleft wrist.  No ulnar or radial neuropathy.  No cervical neuropathy.” \n As part of her physical therapy assessment on November 1, 2022, Claimant was \nasked to indicate on anatomy diagrams were her symptoms were located.  She placed \n“X”  marks  all  over  the  diagrams,  representing  that  she  was  experiencing  symptoms \nliterally from her ears down to her feet, including her upper extremities.  Claimant wrote \nthat these problems began on July 7, 2022—the stipulated date of her injury. \n In  a  form  dated  April  13,  2023,  as  part  of  Claimant’s  application  for  short-term \ndisability  benefits,  Dr.  Moughrabieh  was  asked  whether  Claimant’s  condition—lower \nback pain—was work-related.  He answered, “No.” \n Discussion.    Arkansas  Code Annotated Section 11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \n\nLURRY – H206949 \n \n12 \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    The \nstandard “preponderance of the evidence” means the evidence having greater weight or \nconvincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet \nCove   Barium   Corp.,   212   Ark.   491,   206   S.W.2d   442   (1947).    What   constitutes \nreasonable and necessary medical treatment is  a question of fact for the  Commission.  \nWhite  Consolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); \nWackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  In order to prove \nhis entitlement to the requested  treatment, Claimant must also prove that it is causally \nrelated  to  her  compensable  injury.   See  Pulaski  Cty.  Spec.  Sch.  Dist.  v.  Tenner,  2013 \nArk. App. 569, 2013 Ark. App. LEXIS 601. \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled to \nadditional  treatment,  even  after  the  healing  period  has  ended,  if  said  treatment  is \ngeared toward management of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. \nApp.  230,  184  S.W.3d  31 (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App. 200, \n649 S.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing \nthe  nature  and  extent  of  the  compensable  injury;  reducing  or  alleviating  symptoms \nresulting  from  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or \npreventing  further  deterioration  of  the  damage  produced  by  the  compensable  injury.  \nJordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra.  A \nclaimant is not required to furnish objective medical evidence of her continued need for \n\nLURRY – H206949 \n \n13 \nmedical  treatment.   Castleberry  v.  Elite  Lamp  Co.,  69  Ark.  App.  359,  13  S.W.3d  211 \n(2000). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Claimant’s  testimony  is  that  she  is  seeking  additional  treatment  in  the  form  of \ninjections  or  other  measures  to  alleviate  her  pain.    She  attributes  her  problems  to  her \nstipulated work-related injury of July 7, 2022.  But Dr. Brophy, based at least in part on \nher  MRI  findings,  opined  that  neither  injections  nor  surgery  were  indicated.    To  the \ncontrary,  he  wrote:   “PCP  [primary  care  physician]  for  complete  Physical  for  unknown \nsource of pain[.]” \n The  Commission  is  authorized  to  accept  or  reject  a  medical  opinion  and is \nauthorized  to  determine  its  medical  soundness  and  probative  value.   Poulan  Weed \nEater  v.  Marshall,  79  Ark.  App.  129,  84  S.W.3d  878  (2002); Green  Bay  Packing  v. \nBartlett,  67  Ark.  App.  332,  999  S.W.2d  692  (1999).    Based  on  my  assessment of  the \nevidence,  I  credit  Brophy’s  opinions.    His  assessment  is  borne  out  by  her  diagnostic \ntests  results.    Her  lumbar  MRI  showed  no  disc  herniation  or  nerve  root  compression.  \n\nLURRY – H206949 \n \n14 \nMoreover,  her  nerve  conduction  study  was  negative  for  lumbosacral  radiculopathy.    It \nmust  also  be  kept  in  mind  that  she  has  complained  of  pain  throughout  her  body—\nincluding areas that no provider has causally related to her lower back.  In addition, the \nevidence  shows  that  Claimant’s  own  personal  physician,  Dr.  Moughrabieh,  gave  his \nopinion that her lower back problems were not work related.  I credit this as well.  Under \nTenner, supra, Claimant has not shown that her claimed need for treatment is  causally \nrelated to her stipulated compensable lower back injury.  Thus, apart from her ability or \ninability to establish the other elements of this issue, she has not proven her entitlement \nto such by a preponderance of the evidence due to this clear shortcoming. \n In  making  this  finding, I  wish  to  reiterate  that  Claimant  by  all appearances  is  a \nsincere individual.  But any belief, no matter how sincere, is not a substitute for credible \nevidence.  Graham  v. Jenkins Engineering, 2004  AR  Wrk.  Comp. LEXIS  79,  Claim  No. \nF112391 (Full Commission Opinion filed March 12, 2004). \nB. Temporary Total Disability \n Introduction.    Claimant  has  also  alleged  that  she  should  be  awarded  temporary \ntotal  disability  benefits  in  connection  with  her  lower  back  injury.    Respondents  have \ndenied that she is entitled to such benefits for any period of time. \n Evidence.    According  to  Claimant,  she  returned  to  work  on  July  11,  2022,  just \nfour  days  after  the  accident  in  question.    She  continued  to  work  light  duty  until  Dr. \nBrophy released her to full duty as of September 26, 2022.  Later, however, she stated \nthat she missed no work as a result of her back injury until October 18, 2022.  This was \nthe last date she worked for Respondent employer.  She has not worked anywhere for \n\nLURRY – H206949 \n \n15 \npay since that time.  Asked why this was the case, she responded:  “Because my—my \nback hurts  all the  time.”   Her  testimony  was that  Dr.  Moughrabieh has taken her off  of \nwork and that he has issued off-work slips.  Claimant explained: \nThe reason why I haven’t been to work is because Coca-Cola was the one \nthat asked me to go take a leave and find out what was going on with me.  \nAnd  while  I  was  out  on  the  leave,  I—I  wasn’t  getting  no—nothing  had \nchanged, so my doctor kept taking me off, and he kept sending me—kept \ntelling them that I needed to go see the orthopedic doctor. \n \nElaborating,  Claimant  recounted  that  after  Dr.  Brophy  gave  her  a  full-duty  release, \nbecause  her  back  condition  had  made  her  unable  to  perform  her  job  standing  up,  she \nbegan performing it while sitting.  This was not allowed.  After 19 days of doing this, her \nsupervisor, Brandon Gross, questioned her on October 18, 2022, regarding whether she \ncould  still  stand  while  working.    When  she  answered  in  the  negative,  she  was  sent \nhome that day with instructions to find out what was wrong with her condition.  Claimant \nrelated that she told Gross that her problem was with her back and that it was related to \nthe work-related incident of July 7, 2022.  But she also stated that she informed him that \nher  pain  was  throughout  her  body.    She  testified  that  she  was  unable  stand  up for  12 \nhours—the  length  of  her  shift—or  for  even  as  little  as  20  minutes.  Claimant  went  on \nleave as of October 22, 2022.  She has not been paid for any time that she has been off \nof  work  purportedly  in  connection  with  her lower  back  condition.   It  was  her admission \nthat she has not gone back to employer and requested to be returned to work. \n Shown  her  application  for  short-term  disability  benefits  that  Dr.  Moughrabieh \nfilled out on her behalf, which again reflects that he checked “No” when asked whether \nher  condition  was  work-related,  Claimant  stated  that  his  answer “probably  was  a \n\nLURRY – H206949 \n \n16 \nmistake . . . had to be a mistake.”  In testifying that she has applied for Social Security \ndisability  benefits,  Claimant  explained:   “my 4  and 5,  it’s  something  seriously  going  on \nwrong with it . . . [a]nd it’s causing all this stuff going on with my body, sir.  I was fine up \nuntil  that  day  at  Coca-Cola.”  Her  application  referenced “that  throbbing  stuff  [that \nClaimant has] going on everywhere.”  She reiterated:  “All of this stuff comes from that \nday.”  The following exchange occurred: \nQ. Before your hurt your back at Coke on July 7 of last year—and this \nis—that’s  the  date  that  everybody  seems  to agree  you  were  doing \nthis thing with the—with the—the hand jack and it got stuck and you \nsaid you hurt your back—before that date, were you having this all-\nover pain that you described to us today? \n \nA. No, sir. \n \nQ. were you having any paid before that day? \n \nA. No, sir. \n \nQ. No pain at all? \n \nA. No, sir. \n \nQ. You were pain-free? \n \nA. Yes. \n \n Discussion.  Claimant’s stipulated    compensable    lower    back    injury    is \nunscheduled.  See Ark. Code Ann. § 11-9-521 (Repl. 2012).  An employee who suffers \na compensable unscheduled injury is entitled to temporary total disability compensation \nfor  that  period  within  the  healing period  in  which  she  has  suffered a  total  incapacity  to \nearn wages.  Ark. State Hwy. & Transp. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d \n392  (1981).    The  healing  period  ends  when  the  underlying  condition  causing  the \n\nLURRY – H206949 \n \n17 \ndisability  has  become  stable  and  nothing  further  in  the  way  of  treatment  will  improve \nthat  condition.   Mad  Butcher,  Inc.  v.  Parker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  \nAlso, a claimant must demonstrate that the disability lasted more than seven days.  Id. § \n11-9-501(a)(1).    Claimant  must  prove  her  entitlement  to  temporary  total  disability \nbenefits by  a  preponderance  of  the  evidence.   Ark.  Code Ann.  § 11-9-705(a)(3)  (Repl. \n2012). \n Dr.  Brophy  rendered  the  opinion  that  Claimant  could  return  to  work  at  full  duty \nwithout  restriction  as  of  September  26,  2022.    I  credit  this,  and  further  find  that  the \npreponderance  of  the  evidence  establishes  that  Claimant  reached  the  end  of  her \nhealing period as of that date—which is before the beginning of the time period that she \nis  claiming  temporary total  disability  benefits,  October 22, 2022.\n1\n  As  for  her  testimony \nthat  Dr.  Moughrabieh  has  taken  her  off  of  work  since  that  time,  assuming  only  for  the \nsake  of  argument  that  this  is  true,  this  is  irrelevant.    This  is  because  I  have  credited \nMoughrabieh’s  opinion  that  the  ostensible  reason  for  his  doing  this—her  lower  back \nproblem—is  not  work-related.   See  supra.    Consequently,  she  has  not  proven  by  a \npreponderance of the evidence that she is entitled to temporary total disability benefits \nfor any period of time. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for additional benefits is hereby denied and dismissed. \n \n1\nClaimant’s  testimony  made  reference  perhaps  to the  period  beginning  October \n19, 2022.  The result would be the same. \n\nLURRY – H206949 \n \n18 \n IT IS SO ORDERED. \n       ________________________________ \n       Honorable O. Milton Fine II \n       Chief Administrative Law Judge","textLength":30025,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H206949 GLENDA FAY LURRY, EMPLOYEE CLAIMANT COCA-COLA CONSOLIDATED, INC., EMPLOYER RESPONDENT INDEMN. INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED JANUARY 5, 2024 Hearing before Administrative Law Judge O. Milton Fine II on October 27, 2023, in Mar...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:2","denied:1"],"injuryKeywords":["back","hip","lumbar","herniated","wrist","cervical"],"fetchedAt":"2026-05-19T22:58:08.945Z"},{"id":"alj-H204360-2024-01-04","awccNumber":"H204360","decisionDate":"2024-01-04","decisionYear":2024,"opinionType":"alj","claimantName":"Claudell Reed","employerName":"Wendys Old Fashion Hamburger","title":"REED VS. WENDYS OLD FASHION HAMBURGER AWCC# H204360 JANUARY 4, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Reed_Claudell_H204360_20240104.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Reed_Claudell_H204360_20240104.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204360 \n \nCLAUDELL REED, \nEMPLOYEE                                                                                                              CLAIMANT \n \nWENDYS OLD FASHION HAMBURGER, \nEMPLOYER                                                                                                         RESPONDENT  \n \nPHOENIX INSURANCE COMPANY, \nINSURANCE CARRIER                                                                             RESPONDENT \n \nOPINION FILED JANUARY 4, 2024 \n \nHearing  conducted  on Tuesday,  January  3,  2024, before the Arkansas Workers’  Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ)  Steven  Porch,  in  Little  Rock, \nPulaski County, Arkansas. \n \nThe Claimant, Ms. Claudell Reed, pro se, of Jacksonville, Arkansas, did not appear in person at \nthe hearing.  \n \nThe Respondents were represented by the Honorable Guy Alton Wade, Little Rock, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  Today, January 3, 2024, was the second hearing on a motion to dismiss in this matter. The \nfirst hearing was conducted on Wednesday, July 25, 2023, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark.  Code  Ann.  §  11-9-702(a)(4)  (2022  Lexis \nReplacement) and Commission Rule 099.13 (2022 Lexis Repl.). The Respondents filed a motion \nto dismiss with the Commission on March 17, 2023, requesting this claim be dismissed for lack of \nprosecution.  \n           In accordance with applicable Arkansas law, the Claimant was mailed due and proper legal \nnotice of both the respondents’ motion to dismiss and the hearing notice at her current address of \nrecord via the United States Postal Service (USPS), First Class and Certified Mail, Return Receipt \nRequested, which she received on June 17, 2023.  \n\nREED, AWCC No. H204360 \n \n2 \n \n          The  Claimant  appeared  for  the  hearing  and  stated  she  had  an  attorney  and  believed  her \nattorney was handling the matter. Claimant’s attorney, Laura Beth York, withdrew her services, \nvia email, on May 16, 2023. I found, during that hearing, there was a miscommunication between \nClaimant’s attorney and herself about the representation. The Claimant desired to go forward with \nher claim. I advised the Claimant of her right to seek counsel and the benefits of the Commission \nlegal advisors.  I further advised the Claimant that she is held to the same standard as an attorney \nif she represents herself. \n Approximately  6  months  later,  the  Claimant  has  not  availed  herself  of  legal  counsel  or \nanswered  discovery  requests  propounded  by  the  Respondents.  The  Claimant  has  not  submitted \nquestionnaire responses required by the Commission even when she was issued additional time to \ndo  so.  Due  to  the  lack  of  prosecution  of  this  claim,  Respondents  requested  a  motion  to  dismiss \nhearing on October 25, 2023. Notice of this motion to dismiss was sent to the Claimant by First-\nClass and Certified Mail on October 30, 2023, but she did not respond to the motion nor show up \nto the January 3, 2024, hearing.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nTherefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, including Respondents’ Exhibit 1, non-medical records, consisting of \ntwenty-two pages, I hereby make the following findings: \n \n1. The Commission has jurisdiction over this claim. \n \n2. The Claimant has failed to prosecute her claim under Commission Rule 99.13.  \n \n3. The Respondents’ Motion to Dismiss should be granted.    \n \n 4. The Claimant and Respondents both had proper notice of January 3, 2024, hearing.  \n \n\nREED, AWCC No. H204360 \n \n3 \n \n \n \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the Respondents’ motion to dismiss. I do \nfind by the preponderance of the evidence, introduced at the hearing, and contained in the record, \nthat Claimant has not requested a hearing, nor has she taken any action to pursue her claim as of \nthe hearing date. The Claimant has not complied with any discovery requests propounded by the \nRespondents  or  submitted  the  required  questionnaires  to  the  Commission  despite  being  given \nadditional time to do so. Therefore, I find by the preponderance of the evidence that the Claimant \nhas failed to prosecute her claim under Commission Rule 99.13.  \n     CONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above,  Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n \n     IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Steven Porch \n                                                                                               Administrative Law Judge","textLength":5215,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204360 CLAUDELL REED, EMPLOYEE CLAIMANT WENDYS OLD FASHION HAMBURGER, EMPLOYER RESPONDENT PHOENIX INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT OPINION FILED JANUARY 4, 2024 Hearing conducted on Tuesday, January 3, 2024, before the Arkansas Workers’ Comp...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:58:04.722Z"},{"id":"alj-H004886-2024-01-04","awccNumber":"H004886","decisionDate":"2024-01-04","decisionYear":2024,"opinionType":"alj","claimantName":"Lana Rogers","employerName":"United Parcel Svc","title":"ROGERS VS. UNITED PARCEL SVC. AWCC# H004886 & H202191 JANUARY 4, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Rogers_Lana_H004886_20240104.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Rogers_Lana_H004886_20240104.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NOS. H004886 & H202191 \n \n \nLANA ROGERS, EMPLOYEE CLAIMANT \n \nUNITED PARCEL SVC., \n EMPLOYER RESPONDENT \n \nLM INS. CORP., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 4, 2024 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  December \n13, 2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant\n1\n, pro se. \n \nRespondents  represented  by  Mr.  David  C.  Jones,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  Respondents’ Motion  to \nDismiss.    A  hearing  on  the  motion  was  conducted  on  December  13,  2023,  in \nLittle Rock, Arkansas.  Claimant, who is pro se, appeared in person and testified.  \nRespondents were represented at the hearing by Mr. David C. Jones, Attorney at \nLaw,  of  Little  Rock,  Arkansas.    In  addition  to  Claimant’s  testimony,  the  record \nconsists   of   the   following   exhibits,   which   were   admitted   without   objection:  \nCommission’s Exhibit 1—correspondence and notice to this claim—consisting of \nthree  numbered  pages;  and  Respondents’  Exhibit  1—forms,  pleadings,  and \ncorrespondence related to this claim—consisting of 83 numbered pages. \n \n \n1\nClaimant   is   a   hearing-impaired   individual.      The   proceedings   were \ninterpreted to her by Mr. John West, who is a certified sign language interpreter. \n\nROGERS – H004886 & H202191 \n \n2 \n The evidence reflects that  per the First Report of Injury or  Illness filed on \nJuly 21,  2020,  Claimant purportedly  injured her head at work on June 12, 2020, \nwhen a  package  fell  and  struck  her.    This  matter  was  assigned  the  number \nH004886  by  the  Operations  and  Compliance   Division  of  the  Commission.  \nAccording  to  the  Form  AR-2  that  was  filed on August  13,  2020,  Respondents \naccepted  the  claim  as  a  medical-only  one.    However,  in  an  amended  form  filed \non  September  17,  2020,  they  informed  they  Commission  that  they  were  now \npaying  indemnity  benefits  as  well.    On  December 28,  2020,  Claimant  through \nthen-counsel  Laura  Beth  York  filed a  Form AR-C,  alleging  that  she  was  entitled \nto  the  full  range  of  initial  and  additional  benefits  for  her  alleged “injuries  to  her \nhead, neck, back, left arm, left hand and other whole body.”  Thereafter, on April \n17,  2021,  York  moved  to  withdraw  from  her  representation  of  Claimant.    In  an \norder  entered  on  April  30,  2021,  the  Full  Commission  granted  the  motion \npursuant to AWCC Advisory 2003-2. \n Respondents  on  May  16,  2022,  filed  a  Motion  to  Dismiss  and  brief  in \nsupport  thereof  regarding  AWCC  No.  H004886.    In  response  to  the  motion, \nClaimant wrote the Commission, requesting a change of physician.  Because of \nthis,  Administrative  Law  Judge  Chandra  Black,  to  whom  the  file  had  been \nassigned, notified the parties by letter on June 10, 2022, that she was holding the \nmatter “in abeyance until such time a hearing is requested.” \n On  March  16,  2022,  Respondents  filed  a  First  Report  of  Injury  or  Illness \nthat reflected that Claimant purportedly hurt her head at work on March 8, 2022, \n\nROGERS – H004886 & H202191 \n \n3 \nwhen  a  falling  package  struck  her.    The  Operations  and  Compliance  Division \nassigned  this  matter  the  number  H202191.    In  a  Form  AR-2  filed  by  them  on \nMarch 22, 2022, Respondents represented that they were accepting the claim as \na medical-only one. \n Discovery  proceeded  on  both  matters.    Claimant  was  sent  a  records \nrelease  pursuant  to  the  Health  Insurance  Portability  and  Accountability  Act \n(“HIPAA”);  but  instead  of  merely  signing  it,  Claimant  added  language  indicating \nthat she was reserving certain rights under the Uniform Commercial Code.  She \ndid this repeatedly.  Because of this, Respondents were unable to use it.   In the \nmeantime,  Claimant  was  granted  her  one-time  change  of  physician  on  both \nAWCC Nos. H004886 and H202191 to Dr. David Sokolow on February 28, 2023.  \nAn  amended  order  was  issued  on  March  7,  2023;  and  a  third  was  issued  on \nMarch  17,  2023.    A  review  of  the  correspondence  in  evidence  shows  that  the \nparties  were  involved  in  an  ongoing  dispute  not  only  over  Claimant’s  need  to \nprovide an unrestricted  HIPAA  release, but her  insistence that  she  be  furnished \nan in-person sign language interpreter for her medical appointments. \n On October 17, 2023, Respondents filed the instant Motion to Dismiss and \na  Brief  in  Support  thereof.    Therein,  they  argued  that  dismissal  of  both  AWCC \nNos. H004886 and H202191  was warranted under both Ark. Code Ann. § 11-9-\n702  (Repl.  2012)  as  well  as  AWCC  R.  099.13  because “[n]o  hearing  has  been \nrequested in regard to either claim, and no further action has been taken by the \nClaimant in over six (6) months with respect to these claims.”  Judge Black wrote \n\nROGERS – H004886 & H202191 \n \n4 \nClaimant  on  October  20,  2023,  requesting  a  response  to  the  motion  within  20 \ndays.    Claimant  did  so  in  a  letter  received  by  the  Commission  on  November  2, \n2023, that reads: \nTo Whom It May Be [sic] Concern: \n \nThis  is  Lana  Rogers,  AWCC  File  No.  H004886  and  H202191,  I \nwould like to send you a letter as you requested, \n \nI  do  Object  to  the  Motion  for  dismissal,  I  do  have  an  issue  that  I \nwould like to Pursue.  I did not request a Motion to Dismiss.  That’s \n[Respondents’  counsel’s]  decision  after  several  times  requesting \nme to sign a Hippa [sic] for and I’ve signed it and submitted it to him \nas he requested, but my signature wasn’t good enough for him. \n \n On  November  14, 2023,  Judge  Black  scheduled  a  hearing  on  the motion \nfor December 13, 2023.  At the hearing, Claimant testified  that she received the \nNotice of Hearing and that that was why she appeared at the hearing. \n During the hearing, Respondents argued for dismissal under both § 11-9-\n704(d) (Repl. 2012) and Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including   medical   reports, \ndocuments,  and other matters  properly before  the  Commission,  and  having  had \nan  opportunity  to  hear  the  testimony  of  Claimant,  I  hereby  make  the following \nfindings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover AWCC Nos. H004886 and H202191. \n\nROGERS – H004886 & H202191 \n \n5 \n2. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n3. Respondents have not proven by a preponderance of the evidence \nthat  Claimant  has  failed  to  prosecute  AWCC  No.  H004886  under \nAWCC R. 099.13. \n4. Respondents have not proven by a preponderance of the evidence \nthat  AWCC  No.  H004886  should  be  dismissed  under  Ark.  Code \nAnn. § 11-9-702(d) (Repl. 2012). \n5. Respondents’ Motion  to  Dismiss  should  be,  and  hereby  is,  denied \nregarding AWCC No. H004886. \n6.  No  Form  AR-C  has  ever  been  filed  in  connection  with  AWCC  No. \nH202191. \n7. No other document before the Commission in AWCC No. H202191 \nconstitutes a claim for additional benefits. \n8. Respondents’ Motion  to  Dismiss  is  denied  regarding  AWCC  No. \nH202191 because no claim exists to be subject to dismissal. \n9. Claimant  has  requested  a  hearing  on  AWCC  Nos.  H004886  and \nH202191. \n10. AWCC Nos. H004886 and H202191will proceed to a hearing on the \nmerits. \n\nROGERS – H004886 & H202191 \n \n6 \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  In turn, Ark. Code Ann. § 11-9-702(d) (Repl. 2012) reads: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing, if necessary, be dismissed without prejudice to the refiling \nof  the  claim  within  limitation  periods  specified  in  subsection  (b)  of \nthis section. \n \n(Emphasis  added)    Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012), \nRespondents  must  prove  by  a  preponderance  of  the  evidence  that  dismissal \nshould  be  granted.    The  standard  “preponderance  of  the  evidence”  means  the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson \nWorld Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37 S.W.3d 649 (2001).  The Commission must sort through conflicting evidence \n\nROGERS – H004886 & H202191 \n \n7 \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n At  the  hearing,  Claimant  agreed  to  sign  the  HIPAA  authorization  form \nwithout any reservation language—and she did so.  She testified that she objects \nto the dismissal of AWCC Nos. H004886 and H202191 and wants a hearing on \nher entitlement to additional benefits under both matters. \n Concerning  AWCC  No.  H004886,  after  consideration  of  the  evidence,  I \nfind that while both Claimant and  Respondents were given reasonable notice of \nthe Motion to Dismiss hearing under Rule 13, she has not yet abridged that rule.  \nBy  the  same  token,  I  find  that  while  §  11-9-702(d)  provides  that  a  claim  “may” \n(clearly  intending  that  the  administrative  law  judge  has  discretion  in  the  matter) \nbe dismissed for failure to request a hearing within six months of the filing of the \nclaim, dismissal is not yet warranted here.  The Motion to Dismiss is thus denied \nregarding AWCC No. H004886. \n No Form AR-C has been filed in AWCC No. H202191.  That is the means \nfor filing a “formal claim.”  See Yearwood v. Wal-Mart Stores, Inc., 2003 AR Wrk. \nComp.  LEXIS  739,  Claim  No.  F201311 (Full  Commission  Opinion  filed  June  17, \n2003).  See also Sinclair v. Magnolia Hospital, 1998 AR Wrk. Comp. LEXIS 786, \nClaim No. E703502 (Full Commission Opinion filed December 22, 1998)(a claim \n\nROGERS – H004886 & H202191 \n \n8 \nis “typically” filed via a Form AR-C).  While a Form AR-1 was filed, that does not \nsuffice to instigate a claim.  Id. \n Per Ark. Code Ann. § 11-9-702(c) (Repl. 2012): \nA  claim  for  additional  compensation  must specifically  state  that  it \nis  a  claim  for  additional  compensation.    Documents  which  do  not \nspecifically  request  additional  benefits  shall  not  be  considered  a \nclaim for additional compensation. \n \n(Emphasis added)  See White Cty. Judge v. Menser, 2020 Ark. 140, 597 S.W.3d \n640. \n My review of the evidence discloses no document sufficient to constitute a \nfiling of a claim for additional benefits under the standard cited above.  Because \nno claim has been filed, it follows  that there is no claim subject to dismissal per \nRespondents’  motion.    The Motion  to  Dismiss  thus  must  be,  and  hereby  is, \ndenied regarding AWCC No. H202191 for this reason. \n But  based  on  Claimant’s  hearing  request  regarding  both  AWCC  Nos. \nH004886 and H202191, prehearing questionnaires will be immediately issued  to \nthe parties, and these matters will proceed to a full hearing on the merits. \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby respectfully denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":12631,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NOS. H004886 & H202191 LANA ROGERS, EMPLOYEE CLAIMANT UNITED PARCEL SVC., EMPLOYER RESPONDENT LM INS. CORP., CARRIER RESPONDENT OPINION FILED JANUARY 4, 2024 Hearing before Chief Administrative Law Judge O. Milton Fine II on December 13, 2023, in Little Rock, Pul...","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:3"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:58:06.788Z"},{"id":"full_commission-G106990-2024-01-03","awccNumber":"G106990","decisionDate":"2024-01-03","decisionYear":2024,"opinionType":"full_commission","claimantName":"Linda Michael","employerName":"Booneville School District","title":"MICHAEL VS. BOONEVILLE SCHOOL DISTRICT AWCC# G106990 JANUARY 3, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Michael_Linda_G106990_20240103.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Michael_Linda_G106990_20240103.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G106990 \n \n \nLINDA MICHAEL, EMPLOYEE                                      CLAIMANT    \n \nBOONEVILLE SCHOOL DISTRICT,   \nEMPLOYER                                         RESPONDENT NO. 1\n     \nARKANSAS SCHOOL BOARDS   \nASSN., CARRIER                     RESPONDENT NO. 1 \n \nDEATH AND PERMANENT TOTAL \nDISABILITY TRUST FUND         RESPONDENT NO. 2 \n \nOPINION FILED JANUARY 3, 2024 \n \nUpon review before the Full Commission, Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas.   \n \nRespondents No. 1 represented by the HONORABLE MELISSA WOOD, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Reversed. \n \n \nOPINION AND ORDER \n  \nRespondents appeal the Opinion filed April 25, 2023, by the \nadministrative law judge (“ALJ”) finding the following: \n1.  The stipulations agreed to by the parties at the pre-hearing \nconference conducted on November 14, 2022, and contained \nin a Pre-hearing Order filed November 15, 2022, are hereby \naccepted as fact. \n\nMICHAEL – G106990               2 \n \n \n2.  The claimant has proven by a preponderance of the evidence \nthat she is entitled to permanent total disability benefits. \n3.  The claimant has proven by a preponderance of the evidence \nthat her attorney is entitled to an attorney’s fee in this matter. \nIn our de novo review, we find that the claimant has not proven by a \npreponderance of the credible evidence that she is entitled to permanent \ntotal disability benefits.    Accordingly, claimant’s attorney is not entitled to \nan attorney’s fee in this matter.     \nOn September 2, 2014, the parties in this matter entered an Agreed \nOrder finding that the claimant was entitled to a permanent partial \nimpairment rating of 14% with an additional 42% in wage loss disability. \nPursuant to the Order, the claimant waived her right to seek additional \nwage loss disability, but she was not barred from seeking permanent total \ndisability benefits in the event of a change in circumstances. \nPrior to the entry of the Agreed Order, the parties were aware \nclaimant had been terminated by the Booneville School District in June \n2014 as they could not meet her permanent medical restrictions. The \nclaimant was prescribed numerous pain medications as of 2014, including \nmethocarbamol, hydrocodone, narco, morphine ER, and oxycodone. The \nclaimant reported that these prescriptions were doubled by March 2014. By \nMay 2014, Patricia Walz, PhD reported that the claimant cried a lot, stayed \nin bed, had suicidal thoughts, and woke from pain at night and was \naveraging four or five hours of sleep.   \n\nMICHAEL – G106990               3 \n \n \nAfter 30 days of job placement assistance in June 2014, Tanya \nRutherford Owen, PhD identified approximately fifteen potential job leads \nafter assisting the claimant in developing a resume and cover letter. Dr. \nOwen opined that “it is often difficult to place an individual in the labor \nmarket who does not believe that she can work.” In response, the \nclaimant’s Licensed Professional Counselor Loretta Gedosh wrote to Dr. \nOwen on August 1, 2014 stating that she “frankly did [not] understand how \nyou feel these are viable leads,” and that the claimant had been advised by \nher treating physician, Dr. Danny Silver, that while the claimant could \nmanage a few hours of physical labor she would be incapacitated for days \nafterward. Ms. Gedosh believed that the claimant’s mental and physical \ncapacity rendered the claimant unable to work any job recommended by Dr. \nOwen. \nOn October 5, 2017, the claimant presented to Dr. Arthur Johnson \nwith Mercy Clinic Neurosurgery in Fort Smith with complaints of low back \npain. Upon reviewing an x-ray of the claimant’s lumbar spine, Dr. Johnson \nreported that “[t]he hardware is in good alignment and position from all 3 \nlevels with the screws at the inferior level been fractured bilaterally.” An MRI \nof claimant’s lumbar spine revealed: \nMild disc degeneration at the L3 L4 (assuming \nlumbarization of the S1) level with no significant \ncanal  stenosis  or  neuroforaminal  stenosis.  No \nstenosis,  disc  herniations  or  neural  foraminal \nstenosis is evident at any of the fused levels of \nthe lumbar spine. \n\nMICHAEL – G106990               4 \n \n \nAssessment:   \n1.    Hardware  failure  of  the  anterior  column  of \nspine, fractured screws at S1. \n2.    Status  post  lumbar  spinal  fusion  L4-5,  L5-\nS1, S1-S2. \n \nPlan: \nI have discussed the treatment options which I \nbelieve include surgery. \nNo  orders  of  the  defined  types  were  placed  in \nthis encounter. \n \nBased  on  that  discussion  we  are  going  to \nproceed with: \nRemoval  of  hardware  L3-S1.  I’m  very  doubtful \nthat  this  will improve  the  patient’s  clinical  pain \nsyndrome.  She  failed  to  respond  to  a  3  level \nlumbar fusion. She is completely fused at all 3 \nlevels according to CT and therefore not having \nany  movement  around  the  areas  where  the \nfractured screws are at S1. \nNo  orders  of  the  defined  types  were  placed  in \nthis encounter. \n \nI  have  explained  the  surgery  to  the  patient, \nremoval of hardware L3-S1, along with the risk \nand benefits. \n \nDr. Johnson conducted surgical hardware removal on December 5, \n2017, and on May 29, 2018, Dr. Johnson authored a letter opining that the \nclaimant had reached maximum medical improvement, stating: \nThe above captioned patient has been under my \ncare and has been released from Neurosurgery \nas of 5/23/2018. \nThe  patient  has  now  reached  her  Maximum \nMedical Improvement. \nShe   was   given   a   permanent   impairment \ndisability  rating  according  to  the  4th  edition  of \nthe  AMA  guidelines  of  1%  impairment  for  the \nhardware   removal   surgery   that   was   done \n12/5/2017. \n\nMICHAEL – G106990               5 \n \n \n \nThis  is  within  a  reasonable  degree  of  medical \ncertainty. \n \nThe only witnesses at the January 26, 2023 hearing were the claimant \nand her husband, Mr. Phillip Michael. When questioned about any changes \nin  the  claimant’s  condition  between  her  first  lumbar  spine  surgery  in  2013 \nand the 2017 hardware removal, Mr. Michael testified that: \nQ:  (By  Mr.  Walker)  So  after  the  first \nsurgery, what kinds of physical activities \ndo you recall you and your wife engaging \nin? That would have been in 2014, 2015. \n \nA:    I mean that was a long time back, but \nnot  a  whole  bunch,  just  to  be  honest.  I \nmean  she  usually  stayed  at  home  most \nof the time. She got out more than what \nshe  does.  We  would  go  to  Walmart  or \nSam’s, you know. \n \nQ:    So  did  there  come  a  time  when \nwhatever  activities  she  was engaging  in \nbecame more limited? \n \nA:    Yeah, I mean – \n \nQ:    What happened? \n \nA:    She got another bolt snapped in her \nback  and  I  couldn’t  get  her  to  hardly  do \nnothing then. A lot of times she just stood \nup and she may fall. \n \nQ:    So  then  did  she  undergo  a  second \nsurgery by Dr. Johnson? \n \nA:    Yes, sir. \n \nQ:    How did she do after that? \n \n\nMICHAEL – G106990               6 \n \n \nA:    Her  limitations  just  went  downhill \nbad. I can’t get her to hardly do anything. \n \nQ:    Compared  to  her  physical  activities \nafter  the  first  surgery  with  her  physical \nactivities after the second surgery, tell us \nhow you would compare those activities. \n \nA:    After the first one she would at least \ntry  to  take  a  bath  and  clean  herself  up, \nyou know, at least every other day. Now \nI am lucky to get her to take a bath every \nsix  days.  Some  days  it  goes  12  days \nbefore she took a bath. It is just hard to \nget her out of her chair to do anything. \n \nWhen  asked  about  his  testimony  regarding  the  claimant  falling,  Mr. \nMichael explained: \nQ: (By Mr. Walker)  So at what point did \nshe start falling? \n \nA:    I  would  say  whenever  the  second \nscrew busted around 2016. \n \nQ:    And  then he  [Dr.  Johnson]  did  the \nsurgery in 2017? \n \nA:    Correct. \n \nQ:    So after the surgery in 2017, did she \never appear to be as active as she was \nbefore 2017? \n \nA:    No, sir. It just got worse. \n \nQ:    And  when  you  say  got  worse,  what \ndo you mean by that? \n \nA:   She just don’t do nothing. I mean to \nget  her  to  do  anything,  I  mean  even  to \ntake a bath is— \n\nMICHAEL – G106990               7 \n \n \nQ:   Well,  now,  you  said  she  doesn’t  do \nanything.  I  mean  she  has  got  to  do \nsomething  in  order  to  get  through  the \nday.  I  mean  she  is  here  today,  so  she \nobviously  does  some  walking  and  stuff, \nso be more specific when you say – when \nyou are trying to tell us what goes on. \n \nA:    She will get up to go to the restroom. \nI have seen her make her a sandwich or \nsomething that was pretty simple to eat. I \nhave  seen  her  put maybe  a  plate  in  the \ndishwasher. She may throw something in \nthe  washing  machine  if  she  ain’t  got  to \nbend over in a basket to get it out. \n \nQ:    Have you seen her lift anything that \nappeared to weigh more than 10 pounds \nsince 2017? \n \nA:    No, sir. \n \nMr. Michael testified as to what he believed the claimant’s day-to-day \nlife looked like: \nShe will wake up anywhere between 7:30 \nand 9:00. I will get up and I will try to fix \nher  something  to  eat  because  she  is \nhungry.  I  bring  her  food  to  her.  She  will \ntake  her  medicine  and  the  next  thing  I \nknow  she  is  asleep  again  in  her  chair. \nShe  may  wake  up,  you  know,  11:30  or \n12:00  ready  for  lunch.  I  mean  it’s  not \nevery day, but most of the days that is the \nway it goes.   \n \nAnd then if I get her to go anywhere, it is \nusually between 1:00 and 5:00 if I can get \nher out of the house. And other than that, \nshe may go back to bed at 6 o’clock, but \nit’s  sometimes  between  6:00  and  8:30 \nshe  goes  back  to  bed  and  stays  in  bed \nuntil the next morning. \n\nMICHAEL – G106990               8 \n \n \n \nThis serves as a stark contrast to the claimant’s testimony on cross- \nexamination. \nQ:    (By  Ms.  Wood)  Okay.  All  right.  You \ntold  me  in  your  recent  deposition  that  if \nyour  husband  goes  to  the  grocery  store \nor Walmart, you try to go; is that right? \n \nA:   Yes, ma’am. \n \nQ:    And  that  you  do  that  maybe  four \ntimes a week; is that correct? \n \nA:   Yes,  ma’am.  I  just  ride  with  him \nwherever  he  goes.  I  don’t  know  how \nmany exact times. \n \nQ:    Okay.  And  you  also  told  us  in  the \ndeposition that you guys go to the casino \nsometimes; is that right? \n \nA:   Yes, ma’am. \n \nQ:    Choctaw  and  one  other  in  the  local \narea? \n \nA:    Yes. \n \nQ:    You told me that you usually go three \nor four times a week; is that right? \n \nA:   Yes, ma’am. \n \nQ:    Usually if you are hitting, you would \nstay  three  to  four  hours,  but  you  have \nstayed five hours before if you are getting \na lot of money, is that right? \n \nA:   Yes, ma’am. \n \nQ:   Sometimes it’s shorter; is that right? \n \n\nMICHAEL – G106990               9 \n \n \nA:   Yes, ma’am. \n \nQ:    You also told me you stop at garage \nsales  every  once  in  a  while;  is  that \ncorrect? \n \nA:   Yes, ma’am. \n \nQ:    And  at  times  your  eight-year-old \ngranddaughter  comes  to  visit  you  guys, \nis that right? \n \nA:   Yes, ma’am. \n \nQ:    Is  that  the  one  that  lives  down  in \nTexas? \n \nA:   Yes, ma’am. \n \nQ:    Okay. And your husband was telling \nus earlier that you have gone down there \nto visit your family; is that right? \n \nA:    Yes. \n \nQ:    At  the  time  of  your  deposition,  you \ntold us that you had gone down there to \nvisit in August of ’21 when your daughter \ngot married. You went again at Christmas \nand two other times in ’22; is that correct? \n \nA:   I think that’s all. \n \nQ:   You think what? I’m sorry. \n \nA:    I think that is all. \n \nQ:    Okay. And one of the times last year \nwas  your granddaughter’s  birthday  in \nJuly  and  you  said  you  guys  went  to \nWalmart    and    Claire’s    to    get    her \nsomething for her birthday; is that right? \n \nA: Yes. \n\nMICHAEL – G106990               10 \n \n \n \nQ:    You  stayed  about  four  or  five  days \nthat trip? \n \nA:    Yes. \n \nWhen asked what complaints led the claimant to assert that she is \nworse now than in 2014, she replied, ““[m]y legs draw up on me more and \nmy joints and my hips and stuff and my back. And my knees bother me \nmore and my legs and my feet. I sound like popcorn sometimes when I walk \nacross the floor.” Her medical records from 2017 to the date of the hearing \nregularly reported that the claimant’s “chronic pain and related symptoms \nare managed to a functional level with current treatment regimen. . . She is \ncontinuing to work at meeting/ maintaining goals.” \nThe claimant’s contention that she is entitled to permanent total \ndisability fails as the claimant cannot offer proof that she has suffered a \nchange in physical condition since the parties entered into their September \n2014 agreement. The Commission may modify a previous award at any \ntime within six (6) months of termination of the compensation period fixed in \nthe original compensation order or award, upon the commission's own \nmotion or upon the application of any party in interest, on the ground of a \nchange in physical condition or upon proof of erroneous wage rate. Ark. \nCode Ann. § 11-9-713(a)(2).   \nAging    and    the    effects    of    aging    on    a \ncompensable injury are not to be considered in \ndetermining  whether  there  has  been  a  change \nin  physical  condition.  Nor  shall  aging  or  the \n\nMICHAEL – G106990               11 \n \n \neffect  of  aging  on  a  compensable  injury  be \nconsidered  in  determining  permanent  disability \npursuant to this section or any other section in \nthis chapter.   \n \nArk. Code Ann. § 11-9-713(e).   \n \n“‘Permanent total disability’ means inability, because of compensable \ninjury or occupational disease, to earn any meaningful wages in the same \nor other employment.” Ark. Code Ann. § 11-9-519(e)(1). The employee \nbears the burden of proving the inability to earn any meaningful wage. Ark. \nCode Ann. § 11-9-519(e)(2). “In the absence of clear and convincing proof \nto the contrary, the loss of both hands, both arms, both legs, both eyes, or \nof any two (2) thereof shall constitute permanent total disability;” however, \n“[i]n all other cases, permanent total disability shall be determined in \naccordance with the facts.” Ark. Code Ann. § 11-9-519(b)-(c). Permanent \nbenefits may only be awarded if the compensable injury was the major \ncause of the disability or impairment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(a). \nArkansas Code Annotated § 11-9-102(4)(D) provides that a compensable \ninjury must be established by medical evidence supported by \"objective \nfindings.\" An objective finding is defined as a finding that cannot come \nunder the voluntary control of the claimant. Ark. Code Ann. § 11-9-102 (16). \nThe same factors that are considered when analyzing wage loss \ndisability claims are usually considered when analyzing permanent and total \ndisability claims. Maulding v. Price's Util. Contractors, Inc., 2009 Ark. App. \n776, 358 S.W.3d 915 (2009). Those factors include the claimant’s age, \n\nMICHAEL – G106990               12 \n \n \nwork experience, education, motivation, post-injury income, credibility, \ndemeanor, and any other matters reasonably expected to affect her future \nearning capacity. Ark. Code Ann. § 11-9-522(b)(1); St. Vincent Health \nServs. v. Bishop, 2010 Ark. App. 141 (2010).   \nEvery condition alleged by the claimant to have changed since the \nOrder dated September 2, 2014 was known and addressed by the parties \nat the time the parties reached the agreement outlined in the Order. By the \ntime the agreement was reached, the claimant’s permanent restrictions had \nbeen addressed by her treating physician and she had been terminated by \nthe Booneville School District. Even though the claimant has undergone an \nadditional surgery and received an additional rating, an additional rating of \none percent (1%), does not justify an award of permanent and total \ndisability.   \nFurther, prior to the Agreed Order there was some debate regarding \nthe claimant’s ability to work. Tanya Rutherford Owen, PhD identified \napproximately fifteen potential job leads, after which the claimant’s \nLicensed Professional Counselor Loretta Gedosh opined that she “frankly \ndid [not] understand how you feel these are viable leads.” Ms. Gedosh \nbelieved that the claimant’s mental and physical capacity rendered the \nclaimant unable to work any job recommended by Dr. Owen. This \ninformation played a role in determining the claimant’s wage-loss at that \ntime which was agreed to by the parties as evidenced by the Order dated \n\nMICHAEL – G106990               13 \n \n \nSeptember 2, 2014. Since that point, the claimant has failed to prove any \nchange in her physical condition that would warrant a finding of permanent \nand total disability. \nBy the claimant’s own testimony, alongside her husband’s, the \nclaimant’s complaints all result from her own self-limiting behavior. With the \naddition of the 1% permanent impairment rating in May of 2018, the \nclaimant is now rated at 15% to the body as a whole. Claimant’s husband \ndescribes the claimant’s activity as, “[n]ow I am lucky to get her to take a \nbath every six days. Some days it goes 12 days before she took a bath. It is \nhard to get her out of the chair to do anything.” Mr. Michael contends that \nhe brings the claimant food and her medicine in her chair “and the next \nthing I know she is asleep again in the chair. She may wake up, you know, \n11:30 or 12:00 ready for lunch. I mean it’s not every day, but most of the \ndays that is the way it goes.” \nThe claimant’s testimony, however, reflects that the claimant goes to \nthe grocery store with her husband up to four times a week. She and Mr. \nMichael go to the casino three to four times a week where they might stay \nfor five hours if they are winning. The couple occasionally shops at garage \nsales and has visited family in Texas four times since August of 2021 \nstaying four or five days at a time. \n  Dr. Arthur M. Johnson performed hardware removal surgery on the \nclaimant on December 5, 2017, and opined she reached maximum medical \n\nMICHAEL – G106990               14 \n \n \nimprovement on May 23, 2018.    He did not place any additional restrictions \non the claimant’s activities.  \nWithout any evidence of a change in the claimant’s physical \ncondition after the September 2, 2014 Order, we find that the claimant has \nfailed to prove the she is entitled to permanent total disability benefits.   \nAccordingly, the Opinion of the ALJ filed on April 25, 2023, is hereby \nreversed. \nIT IS SO ORDERED. \n \n    ____________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ____________________________________ \n    M. SCOTT WILLHITE, Commissioner   \n \n    ____________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":19213,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G106990 LINDA MICHAEL, EMPLOYEE CLAIMANT BOONEVILLE SCHOOL DISTRICT, EMPLOYER RESPONDENT NO. 1 ARKANSAS SCHOOL BOARDS ASSN., CARRIER RESPONDENT NO. 1 DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED JANUARY 3, 2024 Upon review ...","outcome":"denied","outcomeKeywords":["reversed:1","granted:1","denied:2"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T22:29:46.001Z"},{"id":"full_commission-H202952-2024-01-03","awccNumber":"H202952","decisionDate":"2024-01-03","decisionYear":2024,"opinionType":"full_commission","claimantName":"Riddle","employerName":"Friendship Community Care, Inc","title":"RIDDLE VS. FRIENDSHIP COMMUNITY CARE, INC. AWCC# H202952 JANUARY 3, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Riddle_-Sonja_H202952_20240103.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Riddle_-Sonja_H202952_20240103.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H202952 \n \nSONJA RIDDLE, \nEMPLOYEE \n \nCLAIMANT \nFRIENDSHIP COMMUNITY CARE, INC. \nEMPLOYER \n \nRESPONDENT \nATA WC TRUST/RISK MANAGEMENT \nRESOURCES, CARRIER \n \nRESPONDENT \n \nOPINION FILED JANUARY 3, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondent appeals an opinion and order of the Administrative Law \nJudge filed June 19, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law:  \n1.  The stipulations agreed to by the parties at a pre-hearing \nconference conducted on May 18, 2023, and contained in a pre-\nhearing order filed on May 26, 2023 are hereby accepted as fact. \n \n2.  Claimant has met her burden of proof proving by a \npreponderance of the evidence that her left knee fracture and her \nleft wrist fractures are compensable consequences of her right \nknee injury of April 2, 2021. \n\nRIDDLE- H202952  2\n  \n \n \n3.  Respondent is liable for payment of all reasonable and necessary \nmedical treatment provided in connection with Claimant’s left \nknee and left wrist injuries; this includes surgery performed by Dr. \nNguyen.  \n \n4.  Claimant has proved by a preponderance of the evidence that \nshe is entitled to temporary total disability benefits from October \n13, 2021 and continuing through April 20, 2022.   \n \n5. Respondent has controverted Claimant’s entitlement to all unpaid \nindemnity benefits. \n \n6. Claimant’s request for benefits is not barred by the provisions of \nA.C.A § 11-9-701 regarding notice. \n \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's June 19, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge’s decision in accordance with Ark Code Ann. §   11-9-809 (Repl. \n2012).   \n  \n\nRIDDLE- H202952  3\n  \n \n \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority finding that the claimant’s left knee \nfracture and left wrist fracture are compensable consequences of her right knee \ninjury of April 2, 2021, that Respondents are liable for payment of all reasonable \nand necessary medical treatment provided in connection with Claimant’s left knee \nand  left  wrist  injuries  including  surgery  performed  by  Dr.  Nguyen  and  that  the \nclaimant is entitled to temporary total disability benefits from October 13, 2021 and \ncontinuing through April 20, 2022.   \n\nRIDDLE- H202952  4\n  \n \n \n The claimant in this matter worked as a teacher’s aide for infants and \ntoddlers for Friendship Community Care (“Friendship”) beginning in 2012. (Hrng. \nTr., Pp. 9-10). Her job duties included riding the van that transported children. Id. \nOn April 2, 2021, the claimant was riding the van as it arrived at Friendship when \none of the children vomited on himself. (Hrng. Tr., Pp. 28-29). As the claimant \nwas trying to clean up the sick child and help other students out of the van, she \nlost her balance on the van’s running board and grabbed the door handle. (Hrng. \nTr., Pp. 29-30). She did not fall to the ground, but “[i]t was such a twist that my \nright knee popped.” (Hrng. Tr., P. 30). \n The claimant’s supervisor, Charity Knight, and other employees helped \nthe claimant into the building where the claimant filled out paperwork. Id. At that \ntime, claimant was suffering from pain in her right knee. Id. The claimant was \ntreated at Chambers Memorial the following Monday. (Hrng. Tr., P. 30). \n The claimant’s treating physician, Dr. Jeffrey Stambough obtained an MRI \nof the claimant’s right knee and recommended rest. (Hrng. Tr., P. 31)  Dr. \nStambough released the claimant from his care in June of 2021. Id. At that visit, \nthe claimant informed Dr. Stambaough that her left knee was becoming \nbothersome, but that it was “not related to a work-related injury . . . She would \nlike to be seen for this separately outside of the work comp claim.” (Cl. Ex. 1, P. \n24). The claimant later began treating for her left knee with Dr. Larry Nguyen in \nJuly 2021. (Cl. Ex. 1, Pp. 30-32). Dr. Nguyen conducted a left knee scope with \n\nRIDDLE- H202952  5\n  \n \n \ndebridement, abrasion chandroplasty, subchandroplasty, biomex accufil, and \nhardware removal on October 25, 2021. (Cl. Ex. 1, Pp. 53-57). The claimant later \nfell on October 28, 2021, due to using crutches after her left knee surgery and \ninjured her left wrist. (Hrng. Tr., Pp. 22-23). She now asserts that her left knee \nand left wrist injuries are compensable consequences of her April 2, 2021 fall. \nGenerally, a specific incident injury is an accidental injury arising out of the \ncourse and scope of employment caused by a specific incident identifiable by \ntime and place of an occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i). This, \ntherefore, requires that a claimant establish by a preponderance of the evidence: \n(1) an injury arising out of and in the course of employment; (2) that the injury \ncaused internal or external harm to the body which required medical services or \nresulted in disability or death; (3) medical evidence supported by objective \nfindings establishing an injury; and (4) that the injury was caused by a specific \nincident identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-\n102(4)(A)(i). \nHowever, a compensable injury may also arise as a compensable, or \nnatural, consequence of a prior specific incident injury. If an injury is \ncompensable, then every natural consequence of that injury is also \ncompensable. Martin Charcoal, Inc. v. Britt,  102 Ark. App. 252, 284 S.W.3d 91 \n(2008). The basic test is whether there is a causal connection between the two \n\nRIDDLE- H202952  6\n  \n \n \nepisodes. Walker v. Fresenius Med. Care Holding, Inc., 2014 Ark. App. 322, 436 \nS.W.3d 164 (2014). \nFrom the outset, it is evident that the claimant’s left knee complaints did \nnot arise from her April 2, 2021 accident. At the May 18, 2023 hearing on this \nmatter, the claimant testified that when walking sideways to exit a passenger \nvan, she lost her balance stepping onto the running board and felt a twist and \npop in her right knee. (Hrng. Tr., Pp. 29-30). The injury “was just a twist” to the \nright knee. (Hrng. Tr., P. 35). The claimant was released by Dr. Jeffrey \nSambough on 75% duty on June 17, 2021. (Cl. Ex. 1, Pp. 24-26). At that visit, the \nclaimant informed Dr. Stambaough that her left knee was becoming bothersome, \nbut that it was “not related to a work related injury . . . She would like to be seen \nfor this separately outside of the work comp claim.” (Cl. Ex. 1, P. 24). Dr. \nStambough did not evaluate her knee at that time or as part of this claim. Id. For \nthese reasons, it is clear that the claimant’s left knee complaints cannot be \nattributed to the specific incident on April 2, 2021. \nThe claimant also fails to prove, however, that her left knee injury is a \nnatural consequence of her right knee injury. The medical evidence here is \ncompelling. Dr. Kirk Reynolds reviewed the claimant’s medical records and \ndeposition testimony to determine causation of the claimant’s left knee \ncomplaints and opined that: \nWith regards to her left knee pathology. It is my professional \nmedical opinion that, at most, this represents an acute \n\nRIDDLE- H202952  7\n  \n \n \nexacerbation of a chronic underlying condition. She has \ndocumented evidence of chronic degenerative changes in \nthe knee based upon prior history of recurrent patellar \ndislocations requiring realignment osteotomy, as well as, the \ndescription of her articular cartilage in Dr. Nguyen’s \noperative report dated October 15, 2021. She has an \napproximate 4mm x 4 mm area of subchondral edema in the \nmedial femoral condyle underlying an area of articular \ncartilage wear. It is my professional medical opinion that this \nis a normal appearance of degenerative joint disease on MRI \nscan. Furthermore, it is my professional medical opinion that \nsubchondroplasty in this area was not indicated. \nSubchondroplasty of the femoral condyle has been shown to \nhave inferior results to the tibial plateau. I also see no \nmedical indication for hardware removal from the tibial \ntuberosity as this was never described as being painful. The \ndocumentation is contradictory in that she was described as \nhaving pain primarily laterally and subsequently underwent a \nmedial femoral condyle subchondroplasty. Accordingly, it is \nmy professional medical opinion that her left knee pathology \nand subsequent left knee surgery are less than 51% directly \nor causally related to the twisting injury to her right knee \nwhich occurred on April 21, 2021. \n \n (Resp. Ex. 3). \nThere is every indication that the claimant’s left knee condition is chronic. \nOn May 13, 2021, Dr. Stambough stated that the claimant had a history of a \n“tibial tubercle osteotomy in the left knee for recurrent patellar dislocations.”  After \nx-rays were conducted, Dr. Stambough found “degenerative changes that is \nworse in the patellofemoral compartments.” In fact, a May 27, 2021 x-ray \nrevealed that, “[t]here is no acute fracture or dislocation. No joint effusion. Single \nscrew is seen within the proximal tibia. IMPRESSION: No acute findings. (Resp. \nEx. 1, P. 3). Later, on July 21, 2021, the claimant indicated to Dr. Larry Nguyen \n\nRIDDLE- H202952  8\n  \n \n \nwith Bowen Hefley Orthopedics that her “symptoms gradually began over time.” \nA July 21, 2021 MRI scan ordered by Dr. Nguyen showed “no evidence of acute \nmeniscal tear.” Dr. Kirk Reynolds opined that this MRI showed: \n[s]ignificant degenerative changes seen throughout the \npatellofemoral compartment. Deficiency of the lateral \nretinaculum consistent with lateral retinacular release. \nSignificant metallic artifact seen throughout the tibial  \nplateau secondary to the partially-threaded cannulated \nscrew.  (Resp. Ex. 3, P. 7). \n \nThe ALJ’s findings disregard the weight of this medical evidence and \nrelies entirely on the claimant’s own statements in June 2021 that her left knee \nbegan hurting “because she had to change how she walked,” or later, in July \n2021 that she hurt her knee while attending physical therapy. Importantly, a \nclaimant's testimony is deemed controverted as a matter of law.  Davis v. \nRemington Arms Co., 2018 Ark. App. 390, 557 S.W.3d 894 (2018). \nThe objective medical evidence contradicts those statements. In May of \n2021, there were no objective findings related to the claimant’s left knee, and by \nJuly the claimant’s pain was proved to be degenerative and ongoing since the \n1980’s. Beyond the claimant’s own self-serving statements, there is no proof that \nher left knee pain resulted in any way from her April 2021 injury and she is not \nentitled to benefits for this claim. \nSimilarly, the claimant asserts that she injured her left wrist in a fall in \nOctober 2021 while using crutches for her left knee pain. (Hrng. Tr., Pp. 22-23). \n\nRIDDLE- H202952  9\n  \n \n \nBecause the claimant’s left wrist injury was a consequence of her non-\ncompensable left knee injury, it is not compensable. \nUnder our Rules, a claimant is required to provide timely notice of any \ninjury to her employer. Arkansas Code Annotated § 11-9-701(a)(1) provides that: \nUnless an injury either renders the employee \nphysically or mentally unable to do so, or is made \nknown to the employer immediately after it occurs, the \nemployee shall report the injury to the employer on a \nform prescribed or approved by the Workers' \nCompensation Commission and to a person or at a \nplace specified by the employer, and the employer \nshall not be responsible for disability, medical, or \nother benefits prior to receipt of the employee's report \nof injury. \n \nThe respondent employer in this matter has a specific process by which \nemployees report an injury. According to the claimant’s supervisor, Charity \nKnight, the procedure to report a work-related injury:  \n“is to talk to the supervisor if there is an injury and \nthen fill out the workmen’s comp paperwork, call the \n1-800 phone number that we get. And we also call our \ndirect supervisor . . . and whoever is over workmen’s \ncomp for Friendship to let them know that a claim has \nbeen made. \n \n(Hrng, Tr., Pp. 37-38). \n At the hearing, Ms. Knight testified that she was present on the date of \nclaimant’s accident. Id. When asked if the claimant mentioned anything about her \nleft knee that day, Ms. Knight stated, “Not that I recall, No, not that I recall.” Id. In \n\nRIDDLE- H202952  10\n  \n \n \nfact, Ms. Knight had no notice that the claimant was alleging left knee pain until a \nForm AR-C was filed with the Commission on April 15, 2022. Id. \n The claimant’s failure to provide sufficient notice of her purported left knee \ninjury rendered the respondents unable to exercise their statutory right to direct \nthe claimant’s medical care pursuant to Arkansas Code Annotated § 11-9-514(a).  \nThe respondents were also unable to provide preauthorization for treatment as \nprovided by Rule 099.30.  \nThe claimant was not physically or mentally incapable of providing notice \nat any point during the period from April of 2021 until the AR-C was filed on April \n15, 2022.  She simply chose not to do so. Even if the left knee and/or left wrist \nare found to be compensable, the Respondents are not responsible for any \nbenefits of any kind until April 15, 2022 \nAccordingly, for the reasons set forth above, I must dissent. \n \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":14819,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H202952 SONJA RIDDLE, EMPLOYEE CLAIMANT FRIENDSHIP COMMUNITY CARE, INC. EMPLOYER RESPONDENT ATA WC TRUST/RISK MANAGEMENT RESOURCES, CARRIER RESPONDENT","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["knee","fracture","wrist"],"fetchedAt":"2026-05-19T22:29:46.009Z"},{"id":"alj-H300170-2024-01-03","awccNumber":"H300170","decisionDate":"2024-01-03","decisionYear":2024,"opinionType":"alj","claimantName":"Teresa Kimes","employerName":"Independence At Home","title":"KIMES VS. INDEPENDENCE AT HOME AWCC# H300170 JANUARY 3, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/KIMES_TERESA_H300170_20240103.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KIMES_TERESA_H300170_20240103.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H300170 \n \nTERESA KIMES, Employee CLAIMANT \n \nINDEPENDENCE AT HOME, Employer RESPONDENT \n \nGUARD INS. CO., Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 3, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  October  5,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on August 7, 2023, and a Pre-hearing Order \nwas filed on August 8, 2023.   A copy of the Pre-hearing Order has been marked Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2.   The   relationship   of   employee-employer-carrier   existed   between   the   parties   on \nDecember 4, 2022. \n 3. The respondents have controverted the claim in its entirety. \n\nKimes – H300170 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $144.00  for  both  temporary  total  disability  benefits  and  permanent  partial  disability \nbenefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  her  low  back  on  or  about \nDecember 4, 2022. \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for  her  compensable  low  back \ninjury. \n 3. Whether Claimant is entitled to temporary total disability benefits from December 15, \n2022, to a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“The  claimant  contends  that  she  sustained  compensable  injury  to \nher lower back while attempting to move a patient on December 3 \n[sic],  2022.  She  contends  that  her  injury  has  required  reasonably \nnecessary   medical   services   and   has   rendered   her   temporarily \ntotally  disabled  from  December  5,  2022,  until  a  date  yet  to  be \ndetermined.  She  seeks  the  statutory  attorney’s  fee  for  her  attorney \non all appropriate benefits that might be subsequently awarded.” \n \n The respondents’ contentions are as follows: \n“Respondents   contend   that   the   claimant   cannot   prove   by   a \npreponderance  of  the  evidence  that  she  sustained  a  compensable \ninjury for which she is entitled to medical and indemnity benefits. \nSpecifically,  Respondents  contend  that  the  claimant  suffers  from \npre-existing  degenerative  disc  disease  for  which  she  has  received \ntreatment as far back as 2010 and that the claimant did not report a \nwork related injury occurring on December 3 [sic], 2022, or at any \ntime during her employment.” \n \n\nKimes – H300170 \n \n-3- \n The  claimant  in  this  matter  is  a  61-year-old  female  who  alleges  to  have  sustained  a \ncompensable low back injury on or about December 4, 2022. The claimant was employed by the \nrespondent  as  a  home  health  provider.  On  direct  examination,  the  claimant  provided  testimony \nabout her job duties generally and for the specific client she was servicing on December 4, 2022, \nwhen she alleges she was injured as follows: \nA I was working at Frances’s place as a home health provider. \n \nQ And what does that involve? \n \nA It involves cleaning, doing light housekeeping, and helping \nthem with their personal care and cooking a meal. \n \nQ What all is involved in this personal care? \n \nA Okay.  She  was  bed –  she  could  not  walk  or  nothing,  so  I \nhad  to  change  her  diaper,  her  bedding.  Give  her  a  sponge  bath, \ndress her. I put lotion on her. Comb her hair. \n \nQ Did your job involve moving clients? \n \nA No. I never did use the Hoyer lift. \n \nQ Did it involve that? Were you required to do that at times? \n \nA No, but  I did have to help like turn her in the bed so  that I \ncould make sure that – when you are changing her diaper and stuff, \nyou had to turn her. \n \nQ Okay.  You  didn’t  have  to  get  her  in  and  out  of  bed  or \nanything? \n \nA No, sir. \n \nQ All right. And none of your other clients – you were talking \nabout  one  client,  but  your  job  in  particular  didn’t  involve  getting \nclients in and out of beds, assisting them to go to the bathroom and \nthings like that? \n \nA No, not at all – no. I had very good clients. \n \n\nKimes – H300170 \n \n-4- \n The claimant testified that on December 4, 2022, she was in the process of changing the \nclient’s  undergarments,  here  a  diaper,  when  she  alleges  to  have  been  injured.  The  claimant \ntestified that the client, named Frances, was not being cooperative with her during the changing \nprocess.  Following  is  a  portion  of  the  claimant’s  very  lengthy  description  of  the  undergarment \nchanging: \nShe grabs ahold of the rail and I was trying to start the roll I \ncall it of all her stuff that needs to go under her and she lets go of \nthe rail and she says, “I can’t do this. It hurts.” \n I  said, “Okay,  Frances.”  I  said, “Frances,  you  are  going  to \nhave to help me.” \n So she done it again, so I put my arm up to hold her where \nshe  cannot  roll  back  over  and  I  can  proceed  to  roll  her  diaper  and \nall the items that she needed under her bed, her linens, and she kept \nhollering, “I  can’t  do  it.  It  hurts.  It  hurts.”  So  that  did  take  some \ntime. \n Then I went over on the other side and she has a Hoyer bar \nI guess you would say. I am not familiar with the words. I’ve never \ndone this work before in my life. And you have to straddle it and I \ntold her, “Let’s get this done. You are going to have to help me on \nthis. It is harder.” \n Well, she went to roll back over and she started telling me, \n“I  can’t  do  this,”  blah,  blah.  So  when  I  was  bent  over  and  I  was \nrolling up the unsanitary linens and trying to roll out the other one \nand I was tugging on it and she lets go and just says she can’t do it \nno  more.  When  I  leaned  over,  I  had  a  pain  in  my  back.  I  stopped \nright then. And I told her, “Frances, I have hurt  my back. You are \ngoing to have to help me. I cannot do this.” \n She says, “Well, I can’t, either.” \n Eventually,  I  did  get  it  done,  but  I  did  not  do  everything \nlike it should have been. As soon as I got her where she was able to \nlay  down  on  the  linens  and  all  that –  and  on  one  of  the  diapers,  I \ndid  not  tape  down.  I  said  that  she  needed  to  do  that  and  I  said, \n“I’ve got to sit down.” I sat down for a minute. \n \n The claimant then left the client’s home to go to  a previously scheduled personal  event. \nEn route, the claimant testified that she called “Samantha” at the respondent’s office to report her \nback injury, but no one answered. The claimant testified upon returning from her personal event \n\nKimes – H300170 \n \n-5- \nshe  called  someone  at  the  respondent’s  office  named  Tiffany.  The  following  is  a  portion  of  the \nclaimant’s direct examination testimony: \nSo  I  went  to  church.  Coming  back  from  church,  I  called \nIndependence  and  I  got  Tiffany.  She  told  me  that  she  will  tell  the \ngirls, which the girls was Christy and Carolyn. And she said, “Just \ntake  it  easy  and  just  relax  and  they  will  get  ahold  of  you,”  you \nknow. I said, “Okay.” \n \nThe claimant testified that she returned to the client’s home and took it easy. \n The claimant’s testimony about what occurred over the next few days regarding her work \nand calling in to report her injury is confused. However, at some point in the next few days, she \nclaims  she  called  Carolyn,  a  supervisor  for  the  claimant,  and  told  her “I  can’t  work  because  of \nthe pain in my back.” Carolyn Langley was called as a witness by the respondent in this matter. \nMs. Langley is a scheduling supervisor for the respondent. Ms. Langley was questioned on direct \nexamination about her knowledge of the claimant’s allegation of a low back injury as follows: \nQ Now,  we  are  here  because  Ms.  Kimes  is  claiming  that  she \ninjured her back on December the 4\nth\n, 2022, while working for Ms. \nFrances. Are you aware that is her allegations? \n \nA I’m aware that that is the allegation. \n \nQ Okay.  What  do  you  know,  if  anything,  about  what  Ms. \nKimes claims about what happened on December 4\nth\n? Did she tell \nyou anything? \n \nA No, ma’am. \n \nQ What do you know? \n \nA Nothing other than just the call-ins for needing to go to the \ndoctor for her back hurting and us requesting a doctor’s release to \ncome back to work, as we would with any caregiver. \n \nQ So you are aware that she reported she needed to go to the \ndoctor for back pain? \n \n\nKimes – H300170 \n \n-6- \nA Yes. \n \nQ Was  there  any  discussion  about  why  she  had  back  pain  or \nhow it occurred? \n \nA No, ma’am. \n \nQ Did she ever volunteer to you that she got hurt at work? \n \nA No, ma’am. \n \nQ When did you become aware that she was claiming she got \nhurt at work? \n \nA It had to have been early this year. \n \nQ So January of 2023? \n \nA That sounds correct. \n \nQ And  that  is  when  we  know  she  filed  a  claim  with  the \nWorkers’   Compensation   Commission.   I   believe   it   was   filed \nJanuary  8\nth\n  or  9\nth\n,  somewhere  around  there,  of  2023.  Does  that \nsound like – \n \nA Sounds accurate, yes. \n \n Ms. Langley testified that she was one of the individuals that makes work schedules for \nthe respondent’s employees. She also testified about how schedules are changed and that records \nare  kept  of  the  process.  Following  is  a  portion  of  that  testimony  from  Ms.  Langley  and  the \ntestimony regarding the claimant’s changes of schedule during the time period of her alleged low \nback injury: \nQ And are you one of the people that make the schedule? \n \nA Yes. \n \nQ And if she has to change her schedule for any reason, how \ndoes she go about doing that? \n \nA She would actually call my personal phone often. \n\nKimes – H300170 \n \n-7- \nQ And are you aware of her doing that after  December 4\nth\n of \n2022? \n \nA The call-ins mainly is all she called for. \n \n MS. MCKINNEY: All right. May I approach? \n \n THE COURT: You may. \n \nQ [BY MS. MCKINNEY]: I have some business records. Did \nyou all make note of the call-ins. \n \nA Yes. \n \nQ All right. And I have highlighted December the 3\nrd\n, so this \nwould  have  been  a  Saturday,  is  that  correct,  if  December  4\nth\n  is  a \nSunday? \n \nA Yes. \n \nQ CG, would that be caregiver? \n \nA Caregiver, yes. \n \nQ And that is Teresa Kimes; correct? \n \nA Uh-huh. \n \nQ Is that a “yes”? \n \nA Yes. \n \nQ So was she scheduled to work on December the 3\nrd\n? \n \nA I have access to that. I can pull that up. \n \nQ Okay.  I  have  what  I  purport  to  be  her  December  schedule. \nIs that what you have access to? \n \nA Yes, ma’am. \n \nQ All  right.  It  shows  she  is  not  working  on  December  3\nrd\n; \ndoesn’t it? \n \nA It shows because she was sick and throwing up. \n\nKimes – H300170 \n \n-8- \n \nQ So she was sick – \n \nA So she was pulled from work that day. \n \nQ So she may have been scheduled, but she calls in and calls \nout; correct? \n \nA Correct. \n \nQ She was throwing up on the night before this alleged injury \non December the 4\nth\n? \n \nA Correct. \n \nQ All right. And then we have her working on December the \n4\nth\n.  Are  you  aware  of  any  complaints  of  anything  occurring  with \nMs. Kimes working on December the 4\nth\n? \n \nA The only one that I am aware of is when I received a phone \ncall  on  the  5\nth\n  from  the  client  herself  asking  us  to  remove  Teresa \nand never send her back due to a temperamental situation. \n \nQ Okay. So December the 5\nth\n is the Monday after this? \n \nA Correct. \n \nQ All   right.   Did   you   have   that   conversation   with   Ms. \nFrances? \n \nA I do believe that I did take the phone call myself because I \nam the one who put the caregiver block in for Frances. \n \nQ So  she  was  blocked  from  treating  Frances  after  December \nthe 4\nth\n; is that correct? \n \nA Correct. \n \nQ All right. And then looking at these reports, are you aware \nof any other call-ins after December the 4\nth\n where she called to be \noff work? \n \nA Yes. \n \nQ And when was that? \n\nKimes – H300170 \n \n-9- \n \nA There was one on the 15\nth\n. \n \nQ Okay. Did you take that one? \n \nA I believe so. \n \nQ Okay. And what do you recall from that? \n \nA I believe she was calling in to go to the doctor because her \nback hurt. \n \nQ And  was  there  any  discussion  during  that  conversation \nabout how or why she hurt her back? \n \nA No, ma’am. \n \nQ Did  she  at  any  time  report  to  you  that  she  hurt  her  back \ntaking care of Ms. Frances on December 4\nth\n? \n \nA No, ma’am. \n \n On  cross  examination  the  claimant’s  attorney  asked  Ms.  Langley  about  the  client, \nFrances, blocking the claimant as follows: \nQ Why was she blocked from treating Ms. Frances? \n \nA Why? \n \nQ Yes. \n \nA The allegations were that she was cussing and screaming at \nthe client and threw the client’s phone. \n \nQ Okay. So Ms. Frances didn’t want her out there? \n \nA Correct. She didn’t want her back. \n \nQ Was  that  the  only  day –  was  the  5\nth\n  (sic)  the  only  day  she \nactually treated her? \n \nA No. \n \nQ How many days prior to that had she been treating her? \n\nKimes – H300170 \n \n-10- \n \nA I cannot recall without looking back on the schedule. \n \nQ Could you look back on it and give me an idea? \n \nA Sure. \n \n (Whereupon, the witness is looking on her phone.) \n \n MS. MCKINNEY: Your  Honor,  I  am  approaching  and \nhanding business records to Ms. Langley. \n \n THE COURT: So noted. \n \n THE WITNESS: It looks like one, two, three – \n \n MS. MCKINNEY: If I may ask – I mean the question is \nhow  many  days.  It  may  be  faster  to  indicate  when  did  she  start \nworking with Ms. Frances. \n \n THE WITNESS: She had Ms. Frances  as  a permanent \nmorning client beginning of June of ’22. \n \n THE COURT: Mr. Ellig, is that satisfactory? \n \n MR. ELLIG:   That is satisfactory. \n \nQ [BY MR. ELLIG]: And  apparently  there  was  a  falling \nout  on  the  5\nth\n,  but  everything  went  well  from  June  until  the  5\nth\n  of \nDecember? \n \nA On  the  4\nth\n  there  was  a  falling  out.  The  client  called  on  the \n5\nth\n. \n \nQ The client called on the day we are saying she was hurt. \n \nA No, the next day. \n \n The  claimant  was  asked  on  cross  examination  about  her  testimony  regarding  reporting \nher alleged low back injury and any request for medical treatment as follows: \nQ All  right.  Then  I  am  jumping  to  December  the  4\nth\n.  You \nclaimed this incident at work; right? \n \n\nKimes – H300170 \n \n-11- \nA Yes, ma’am. \n \nQ You claim you called it in and you told everybody at work \nthat you hurt yourself at work. Is that your testimony? \n \nA Yes, ma’am. \n \nQ But you don’t go to the doctor and you don’t ask to be sent \nto the doctor; do you? \n \nA No, ma’am. \n \nQ All  right.  You  claim  that  on  December  the  15\nth\n  you  are  in \npain, so you call in and you get up and you go to the Urgent Care \nClinic; correct? \n \nA Yes, ma’am. \n \n On  December  15,  2022,  the  claimant  was  seen  at  Baptist  Urgent  Care  by  NP  Shelby \nValerie. The medical record from that visit gives a chief complaint of back pain. The history of \npresent illness section states: \nPatient Reports: \nBack pain [Onset: 1 Week(s); Duration: 1 Week(s); Free text: Pt is \nhome health nurse has hurt back working with patients, worsening \nback pain for a week.] \n \nThe claimant underwent x-rays of her lumbar spine and received injections in her right buttocks. \nThe  claimant  was  referred  to  neurosurgery  for  the  following  stated  reason, “Severe  multi-level \ndegenerative change of the spine, Grade 1 anterolisthesis of L-5 on S-1.” \n On December 20, 2022, the claimant was seen at Baptist Health Family Clinic by APRN \nNycole Oliver. Following is a portion of that medical record: \nReason for Visit: \nBack Pain \nTeresa L. Kimes is a 60 y.o. female who has a past medical history \nof   Diabetes   mellitus   (HCC),   Hyperlipidemia,   Hypertension, \nObesity,   RLS   (restless   legs   syndrome),   Shingles,   and   SOB \n(shortness of breath). Patient presents with: \n\nKimes – H300170 \n \n-12- \nBack Pain \nComplains  of  lower  back  pain.  She  went  to  urgent  care  not  long \nago and was told she had spinal enthesopathy and needed to see a \nneurosurgeon. She would like a referral. She states this is going on \nfor  years.  She  has  recently  been  on  a  Medrol  Dosepak  and \ncyclobenzaprine.   She   states   that   she   has   tried   injections   and \nphysical therapy. She does see an orthopedic doctor about this but \nstates  none  of  it  is  helping.  She  declines  chiropractic  referral. \nPlease   note,   this   was   prepared   using   DragonSpeak   dictation \nsoftware. Any typographical errors or other abnormal wording may \nbe related to this dictation system. \n \nAt that time, the claimant was given an ambulatory referral to neurosurgery.  \n On  December  21,  2022,  the  claimant  was  seen  at  the  Baptist  Hospital  Emergency \nDepartment. Following is a portion of that medical report: \nHistory \nChief Complaint \nPatient presents with \n* Back Pain \n \nTeresa  L.  Kimes  is  a  60  y.o.  female  to  the  emergency  department \nwith complaints  of increasing lower back pain. She states that she \nhas been having gradual increase in pain over the past 7 months or \nso  however  the  past  week  she  has  had  much  more  trouble  with  it. \nShe is she does heavy lifting at work as she works in home health \nand was seen last week at urgent care and had imaging done and is \nsubsequently   seen   her   PCP   who   has   sent   a   referral   for \nneurosurgery  evaluation.  She  has  been  on  Medrol  Dosepak  along \nwith  Flexeril  however  this  does  not  seem  to  be  helping  her  pain. \nThe  pain  goes  mostly  into  her  right  hip  and  leg  but  sometimes  on \nthe  left  side  as  well.  No  bowel  or  bladder  incontinence.  No  falls. \nShe has been trying to use a cane to help as well. \n \nThe  claimant  was  diagnosed  with “chronic  right-sided  low  back  pain  with  right-sided  sciatica.” \nThe claimant was also prescribed hydrocodone during her emergency department visit.  \n On  January  6,  2023,  the  claimant  underwent  an  MRI  of  the  lumbar  spine  at  Baptist \nHealth.  The  diagnostic  report  from  that  visit  was  authored  by  Dr.  James  Ireland.  Following  is \nportion of that report: \n\nKimes – H300170 \n \n-13- \nFindings: \nAlignment: Normal. \n \nVertebral bodies: Normal height. \n \nMarrow: No signal abnormality. \n \nIntervertebral discs: Moderate disc space narrowing at L3-4. \n \nSpinal cord: The imaged  cord is normal in size and signal and the \nconus medullaris terminates at a normal level. \n \nCauda equine: Unremarkable. \n \nSoft  tissues:  The  included  soft  tissues  of  the  abdomen  and  pelvis \nare unremarkable. \n \nL1-2: Normal. \n \nL2-3: Normal. \n \nL3-4:  Posterior  disc  protrusion  with  moderate  anal  narrowing  to \n0.6  cm.  Ligament  flavum  and  epidural  fat  hypertrophy  contribute \nto  canal  narrowing.  There  is  severe  left  and  moderate  to  severe \nright foraminal narrowing. \n \nL4-5:  Posterior  disc  protrusion  with  mild  canal  narrowing  to  0.8 \ncm.  Ligament  flavum  and  epidural  fat  hypertrophy  contribute  to \ncanal  narrowing.  There  is  mild  right  and  moderate  left  foraminal \nnarrowing. \n \nL5-S1: Normal. \n \nImpression: \nDegenerative  changes  of  the  lumbar  spine  which  are  described  in \ndetail by level above. \n \n On  February  21,  2023,  the  claimant  was  seen  by  Dr.  Gautam  Gandhi,  a  neurosurgeon. \nFollowing is a portion of that medical report: \nChief Complaint \nPatient presents with \n* Back Pain \n \n\nKimes – H300170 \n \n-14- \nBack Pain \nThis is a chronic problem. The current episode started more than 1 \nyear ago (>10 years). The problem occurs constantly. The problem \nhas  been  gradually  worsening  since  onset.  The  pain  is  present  in \nthe  lumbar  spine.  The  quality  of  the  pain  is  described  as  aching, \nburning, cramping, shooting and stabbing. The pain radiates to the \nright thigh, right foot, right knee, left thigh, left knee and left foot. \nThe pain is at a severity of 9/10. The pain is severe. The symptoms \nare aggravated by bending, position, standing and twisting (ADLs, \nambulation).  Associated  symptoms  include  leg  pain,  numbness, \ntingling and weakness. She has tried bed rest, heat, home exercises, \nNSAIDs  and  muscle  relaxant  for  the  symptoms.  The  treatment \nprovided no relief. \n*** \nAssessment/Plan \nTeresa  L.  Kimes  is  a  60  y.o.  female  initially  evaluated  2/21/2023 \nfor  chronic  neurogenic  claudication  and  progressively  worsening \nmechanical low back pain and symptoms in the last 6 months with \nimaging    showing    multisegmental    lumbar    spondylosis    with \nsignificant   spondylosis   worse   at   L3-4   with   collapse   of   the \ninterspace and severe central canal stenosis at L3-4 and L4-5. Her \nimaging  is  slightly  worse  compared  to  an  MRI  performed  in  May \n2018. Clinically she feels significantly worse in the last 6 months. \nShe has not undergone conservative therapy. I personally reviewed \nthe  clinic  reports  as  well  as  imaging  studies.  Discussed  surgical \nand nonsurgical treatment  options. The patient had an  opportunity \nto  ask  questions  and  their  questions  were  answered  and  they \nendorsed  understanding  and  agreement  with  the  plan  of  care. \nDiscussed  conservative  treatment  including  weight  loss,  physical \ntherapy,  and  aquatic  therapy.  I  personally  reviewed  the  clinic \nreports   as   well   as   imaging   studies.   Discussed   surgical   and \nnonsurgical  treatment  options.  The  patient  had  an  opportunity  to \nask questions and their questions were answered and they endorsed \nunderstanding and agreement with the plan of care. \n \n-Discussed continued conservative treatment and weight loss. \n-Discussed L3-5 posterior fixation with L3 laminectomy and L4-5 \nTLIF. \n-AP and lateral lumbar x-rays. \n-Return to clinic in 6 months. \n \n On  May  4,  2023,  the  claimant  was  seen  by  Dr.  Michael  Wolfe  at  Baptist  Health \nOrthopedics. Following is a portion of that medical record: \n\nKimes – H300170 \n \n-15- \nHPI: \nPatient   is   a   61-year-old   white   female   came   in   today   chief \ncomplaint  of  low  back  pain  she  has  had  treatment  and  known \ndegenerative changes lumbar spine in the past but she was lifting a \npatient is a home health aide on December 4, 2022 felt a pull in her \nlow   back   she   had   progressive   severe   pain   she   was   seen   by \nneurosurgeon  in  Conway  who  recommended  a  fusion  I  am  going \non  this  from  history  I  do  not  have  these  records  available  again \nhistory  is  from  the  patient  she  is  considering  having  surgery  later \nthis year no numbness or weakness. \n*** \nAssessment: \nRadiographs show degenerative changes at L3-4, L4-5, and L5-S1 \nwith  grade  1  spondylolisthesis  at  L5-S1  findings  are  somewhat \nsimilar  to  what  was  noted  3  years  ago  but  she  definitely  has \nprogressive  disc  deterioration  and  joint  space  narrowing  she  is \nhaving mechanical pain  related to her disc  changes and  I do think \nthat  surgical  intervention  could  be  of  help  to  her  because  she  is \nhaving such severe problems she is to follow-up with the physician \nin  Conway  she  will  continue  on  Mobic  at  present  I  will  see  her \nback in clinic on a as needed basis. No follow-ups on file. \n \n The claimant has asked the Commission to determine if she sustained a compensable low \nback injury on or about December 4, 2022. It is the claimant’s burden to prove that she sustained \na  compensable  low  back  injury.  In  order  to  do  so,  she  must  prove  the  existence  of  objective \nmedical findings of the low back injury she alleges. The claimant’s January 6, 2023, MRI of her \nlumbar  spine  certainly  shows  multiple  areas  of  derangement  in  the  claimant’s  lumbar  spine. \nHowever, the claimant also underwent an MRI of the lumbar spine on June 12, 2015, which had \nvery similar findings to her January 6, 2023, MRI. Following is a portion of the claimant’s 2015 \nlumbar spine MRI: \nAt L3-4, there is a posterior disc herniation more prominent to the \nleft  of  midline  with  spinal  and  bilateral  foraminal  stenosis  worse \non the left than the right. \n \nAt  L4-5,  there  is  a  disc  bulge  and  degenerative  facet  change  with \nspinal and bilateral foraminal stenosis. \n \n\nKimes – H300170 \n \n-16- \nAt   L5-S1,   there   is   degenerative   facet   change   with   bilateral \nforaminal stenosis. \n \nAt  L1-2,  there  is  a  mild  disc  bulge  without  spinal  or  foraminal \nstenosis. \n \nThere is degenerative facet change at all levels. \n \nImpression: \n1.  At  L3-4,  there  is  a  posterior  disc  herniation  with  spinal  and \nbilateral foraminal stenosis, worse on the left than the right. \n2. At L4-5, there is a disc bulge and degenerative facet change with \nspinal and bilateral foraminal stenosis. \n3.  At  L5-S1,  there  is  degenerative  facet  change  with  bilateral \nforaminal stenosis. \n4. At L1-2, there is a slight disc bulge without spinal stenosis. \n5. Degenerative facet change at all levels. \n \n Dr. Gandhi,  whom  the  claimant  saw  on  February  21,  2023,  does  not  reference  the \nclaimant’s June 12, 2015, lumbar spine MRI in his medical report, but does reference a May of \n2018  MRI.  That  May  of  2018  MRI  does  not  appear  in  the  records  submitted  into  evidence.  In \nreferring  to  her  January  6,  2023,  MRI,  Dr.  Gandhi  states, “Her  imaging  is  slightly  worse \ncompared to an MRI performed in May 2018.” \n Dr.  Wolfe,  who  saw  the  claimant  on  May  4,  2023,  also  treated  the  claimant  for  her  low \nback pain on three dates prior to her alleged injury; those being April 20, 2022, June 22, 2022, \nand  August  22,  2022.  In  the  May  4,  2023,  medical  record  he  states, “Radiographs  show \ndegenerative changes at L3-4, L4-5, and L5-S1 with grade 1 spondylolisthesis at L5-S1. Findings \nare  somewhat  similar  to  what  was  noted  three  years  ago  but  she  definitely  has  progressive  disc \ndeterioration  and  joint  space  narrowing.  She  is  having  mechanical  pain  related  to  her  disc \nchanges...” \n Medical  records  introduced  into  evidence  by  the  respondent  show  that  the  claimant  has \nbeen treating for low back pain since June 29, 2010. In review of the claimant’s pre-December 4, \n\nKimes – H300170 \n \n-17- \n2022,  medical  records  and  post-December  4,  2022,  medical  records,  I  do  not  find  the  claimant \nable  to  prove  the  existence  of  objective  medical  findings  of  low  back  injury  relating  to  her \nalleged acute incident of December 4, 2022. Here, the evidence shows a continuation of her long, \nchronic  lower  back  issues  and  not  an  acute  incident  as  she  alleges.  The  claimant  is  unable  to \ndemonstrate objective medical evidence of the December 4, 2022, injury she alleges. \n Even  if  the  claimant  were  able  to  prove  the  existence  of  objective  medical  evidence  of \nlow  back  injury  as  she  alleges,  she  would  be  unable  to  prove  the  required  causal  connection \nbetween her 2023 MRI and the December 4, 2022, incident she alleges. \n In direct testimony at the hearing in this matter, the claimant stated, “When I leaned over, \nI had a pain in my back.” In an AR-C form filed with the Commission, the claimant filled out the \nsection which states, “Briefly describe the cause of the injury” as follows: \nWorked  as  a  Home  Health  Provider.  In  June  of  2022,  I  was \nswitched to another client. The client was unable to get out of bed. \nHad  to  bathe  and  change  diaper  and  change  linens.  Moving  her \nwas hurting my back. A lot of lifting and moving client. I told the \nschedulers in the office about that. Lifting heavy person. \n \n In the claimant’s direct examination testimony at the hearing, the claimant was clear that \nshe never lifted clients.  \nQ Did your job involve moving clients? \n \nA No. I never did use the Hoyer lift. \n \nQ Did it involve that? Were you required to do that at times? \n \nA No, but I did have to help like turn her in the bed so that I \ncould make sure that – when you are changing her diaper and stuff, \nyou had to turn her. \n \nQ Okay.  You  didn’t  have  to  get  her  in  and  out  of  bed  or \nanything. \n \n\nKimes – H300170 \n \n-18- \nA No, sir. \n \nQ All  right.  And  none  of  your  clients –  you  were  talking \nabout  one  client,  but  your  job  in  particular  didn’t  involve  getting \nclients in and out of beds, assisting them to go to the bathroom and \nthings like that? \n \nA No, not at that – no. I had very good clients. \n \n However,  she  told  medical  providers  at  the  Baptist  Health  Emergency  Department  on \nDecember 21, 2022, “she is she does heavy lifting at work as she works in home health...” On \nMay  4,  2023,  the  claimant  told  Dr.  Wolfe, “she  was  lifting  a  patient,  is  a  home  health  aide  on \nDecember  4,  2022,  felt  a  pull  in  her  low  back.  She  had  progressive  severe  pain...”  The \nclaimant’s credibility is very low. I simply do not believe that the incident she alleges occurred. \nThe  claimant  says  she  reported  the  incident  to  Ms.  Carolyn  Langley;  Ms.  Langley  denies  that \noccurred. The claimant in this matter is unable to prove by a preponderance of the evidence that \nshe sustained a compensable low back injury on or about December 4, 2022. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust 7, 2023, and contained in a Pre-hearing Order filed August 8, 2023, are hereby accepted \nas fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \na compensable injury to her low back on or about December 4, 2022. \n\nKimes – H300170 \n \n-19- \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment. \n 4. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits from December 15, 2022, to a date yet to be determined. \n 5. The claimant has failed to prove by a preponderance of the evidence that her attorney \nis entitled to an attorney fee in this matter.  \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":31813,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H300170 TERESA KIMES, Employee CLAIMANT INDEPENDENCE AT HOME, Employer RESPONDENT GUARD INS. CO., Carrier RESPONDENT OPINION FILED JANUARY 3, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claimant repr...","outcome":"denied","outcomeKeywords":["granted:1","denied:5"],"injuryKeywords":["back","lumbar","hip","knee"],"fetchedAt":"2026-05-19T22:57:58.382Z"},{"id":"alj-H103741-2024-01-03","awccNumber":"H103741","decisionDate":"2024-01-03","decisionYear":2024,"opinionType":"alj","claimantName":"Tavares Richardson","employerName":"Hino Motors Mfg. USA, Inc","title":"RICHARDSON VS. HINO MOTORS MFG. USA, INC. AWCC# H103741 JANUARY 3, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Richardson_Tavares_H103741_20240103.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Richardson_Tavares_H103741_20240103.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H103741 \n \n \nTAVARES D. RICHARDSON, EMPLOYEE CLAIMANT \n \nHINO MOTORS MFG. USA, INC., \nEMPLOYER RESPONDENT \n \nFIRST LIBERTY INS. CORP., \nCARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 3, 2024 \n \nHearing before Administrative Law Judge O. Milton Fine II on December 22, 2023, \nin Marion, Crittenden County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on December 22, 2023, in \nMarion, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    Admitted  into \nevidence  was  Respondents’  Exhibit  1,  pleadings,  correspondence  and  forms \nrelated to this claim, consisting of six pages.  Also, in order to address adequately \nthis matter under Ark. Code Ann. § 11-9-705(a)(1) (Repl. 2012)(Commission must \n“conduct  the  hearing    .  .  .  in  a  manner  which  best  ascertains  the  rights  of  the \nparties”),   and   without   objection,   I   have   blue-backed   to   the   record   forms, \npleadings,   and   correspondence from   the   Commission’s   file   on   the   claim, \n\nRICHARDSON – H103741 \n \n2 \n \nconsisting of 58 pages.  In accordance with Sapp v. Tyson Foods, Inc., 2010 Ark. \nApp. 517, ___ S.W.3d ___, these documents have been served on the parties in \nconjunction with this opinion. \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  May  7,  2021,  Claimant \npurportedly suffered, inter alia, a fractured nose at work on April 8, 2021, when he \nwas assaulted by a co-worker.  According to the Form AR-2 that was also filed on \nMay 19, 2021, Respondents denied the claim on the basis that the altercation was \nallegedly unrelated to Claimant’s employment.  He filed a form on April 26, 2021, \nin  which  he  represented  that  he  suffered  injuries  to  his  head  and  brain  as  well.  \nClaimant   added:    “Without   continued   employment   and   without   health   care \ncoverage, I cannot receive the vital medical attention needed.” \n On  April  26,  2021,  Claimant  filed  a  Form  AR-C,  alleging  that  he  was \nentitled  to  medical  expenses  and  lost  wages  due  to  his  alleged  work-related \ninjuries.    No  hearing  request  accompanied  this  filing.    Later,  on  June  1,  2021, \nAttorney  Matthew  Ketcham  entered  an  appearance  on  his  behalf  before  the \nCommission and filed another Form AR-C.  In this instance, the full range of initial \nand additional benefits was requested.  As before, no hearing was sought. \n On  February  22,  2022,  Respondents  moved  to  dismiss  the  claim.    In \nresponse to a February 25, 2022, letter from my office, Ketcham on February 28, \n2022,  objected  to  dismissal  and  requested  a  hearing.    I  took  the  motion  under \n\nRICHARDSON – H103741 \n \n3 \n \nadvisement  and  issued  prehearing  questionnaires  to  the  parties  on  March  2, \n2022.    Claimant  filed  a  timely  response  thereto  on  March  23,  2022,  and \nRespondents  followed  suit  on  March  25,  2022.    During  the  May  9,  2022, \nprehearing  telephone  conference,  the  parties  agreed  that  the  file  should  be \nreturned to the Commission’s general files.  It was returned that same day. \n On  February  6,  2023,  Respondents  filed  another  Motion  to  Dismiss.    My \noffice wrote Ketcham on February 15, 2023, requesting a response thereto within \n20 days.  He did so on March 7, 2023, again asking for a hearing on the merits of \nthe claim.  As before, I held the motion in abeyance and scheduled a prehearing \ntelephone conference.   In the meantime, on March 27, 2023, Ketcham moved  to \nwithdraw  from  his  representation  of  Claimant.    In  an  Order  ended  on  May  17, \n2023,  I  granted  the  motion  under  AWCC  Advisory  2003-2  and  scheduled  a \nprehearing  telephone conference  for  June 5,  2023.    Due  to  a miscommunication \non that date, the conference was re-set for June 12, 2023. \n The   prehearing   conference   took   place   as   scheduled,   with   Claimant \nappearing pro se.  Following the conference, I issued a Prehearing Order that set \na hearing for August 25, 2023, on the following issues: \n1. Whether  Claimant  sustained  a  compensable  injury  to  his  face  and \nhead by specific incident. \n2. Whether  Claimant  is  entitled  to  reasonable  and  necessary  medical \ntreatment. \n\nRICHARDSON – H103741 \n \n4 \n \n3. Whether Claimant is entitled to temporary total disability benefits. \nHowever,  on  August  23,  2023,  Claimant  contacted  my  office  and  stated  that  he \nwanted  to  cancel  the  hearing.    I  granted  the  request  and  returned  the  file  to the \nCommission’s general files. \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nSeptember  19,  2023.   On  that  date,  Respondents  filed  the  instant  motion,  again \nasking  for  dismissal  of  the  claim.    My  office  wrote  Claimant  on  September  20, \n2023, asking for a response to the motion within 20 days.  The letter was sent by \nfirst class and certified mail to the West Memphis address of Claimant listed in the \nfile,  the  accuracy  of  which  was  confirmed  during  the  June  12,  2023,  prehearing \ntelephone conference.  It is unknown at present whether  Claimant signed for the \ncertified  letter.    However,  the  first-class  letter  was  not  returned.    Regardless,  no \nresponse from Claimant to the motion was forthcoming.  On October 13, 2023, a \nhearing on the Motion to Dismiss was scheduled fo r December 22, 2023, at 10:30 \na.m.  at  the  Crittenden  County  Courthouse  in  Marion.  The  notice  was  sent  to \nClaimant  via  first-class  and  certified  mail  to  the  same  address  as  before.  A \nperson  with  an  illegible  signature  signed  for  the  certified  letter on October 17, \n2023; and the first-class letter was not returned to the Commission. \n\nRICHARDSON – H103741 \n \n5 \n \n Claimant wrote my office on November 20, 2023: \nRE:  WCC File NO:  H103741 \n \nTo Whom It May Concern: \n \nI  Tavares  Richardson  acknowledge  that  this  letter  is  a  request  to \ncancel/closed   [sic]   my   upcoming   court   hearing   on   Friday, \nDecember   22,   2023 at   the   Crittenden   County   Courthouse   in \nMarion,  Arkansas.    Due to  personal  matters,  I  will  be  out  of  town \nduring that time.  I will no longer pursue this case matter further.  I \napologize for any inconvenience this may have cause[d] and I hope \nthat  you  can  process  this  cancellation  of  this  hearing  and  closed \n[sic]  this  case  as  soon  as  possible.    Thank  you  for  your  time  and \nunderstanding regarding this matter. \n \nHowever,   I   notified   the   parties   by   letter   on   November   20,   2023,   that, \nnotwithstanding  the  above  request,  the  hearing  would  remain  as  scheduled.  \nWhile  it  could  not  be  confirmed  that  Claimant  signed  for  the  certified  letter,  the \nfirst-class one was not returned. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nDecember 22,  2023.  Again,  Claimant  failed  to  appear  at  the  hearing.    But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  AWCC \nR. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n\nRICHARDSON – H103741 \n \n6 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  this  claim  for  initial  benefits is \nhereby dismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of the \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nRICHARDSON – H103741 \n \n7 \n \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it  (including  appearing  at  the  December 22,  2023,  hearing  to  argue \nagainst its dismissal) since the cancellation of the full hearing on August 23, 2023.  \nAs his November 20, 2023, letter makes clear, he has no intention of pursuing this \nclaim any further.   Thus, the evidence preponderates that dismissal is warranted \nunder Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).  At  the  hearing,  Respondents  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities,  I  agree  and  find  that the \ndismissal of this claim should be and hereby is entered without prejudice.\n1\n \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nRICHARDSON – H103741 \n \n8 \n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim for initial benefits is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":11301,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H103741 TAVARES D. RICHARDSON, EMPLOYEE CLAIMANT HINO MOTORS MFG. USA, INC., EMPLOYER RESPONDENT FIRST LIBERTY INS. CORP., CARRIER RESPONDENT OPINION FILED JANUARY 3, 2024 Hearing before Administrative Law Judge O. Milton Fine II on December 22, 2023, in Mari...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:58:00.512Z"},{"id":"alj-H302270-2024-01-03","awccNumber":"H302270","decisionDate":"2024-01-03","decisionYear":2024,"opinionType":"alj","claimantName":"Maritza Sandoval","employerName":"Tyson Foods, Inc","title":"SANDOVAL VS. TYSON FOODS, INC. AWCC# H302270 JANUARY 3, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SANDOVAL_MARITZA_H302270_20240103.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SANDOVAL_MARITZA_H302270_20240103.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H302270 \n \nMARITZA SANDOVAL, Employee CLAIMANT \n \nTYSON FOODS, INC., Employer RESPONDENT \n \nTYNET CORP., Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 3, 2024 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by JEREMY SWEARINGEN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  October  10,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.   A pre-hearing conference was conducted on May 22, 2023, and a Pre-hearing Order \nwas  filed  on  May  23,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2.   The   relationship   of   employee-employer-carrier   existed   between   the   parties   on \nNovember 1, 2022. \n 3. The respondents have controverted the claim in its entirety. \n By agreement of the parties the issues to litigate are limited to the following: \n\nSandoval – H302270 \n \n-2- \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  her  left  knee  on  or  about \nNovember 1, 2022. \n 2. Whether Claimant is entitled to medical treatment for her left knee injury. \n 3. Respondents raise lack of notice as a defense in that the April 6, 2023, AR-C was the \nfirst notice of any alleged work-related injury. \n The claimant's contentions are as follows: \n“Claimant   contends   she   injured   her   left   knee   while   walking \ndownstairs  and  slipping  on  the  bottom  step.  She  contends  she  is \nentitled  to  medical  treatment  for  her  left  knee.  Claimant  reserves \nall other issues.” \n \n The respondents’ contentions are as follows: \n“A. Respondent contends that the Claimant has offered no proof at \nall  that  she  sustained  a  compensable  left  knee  injury.  She  has \nprovided no objective findings of injury. \n \nB.  Respondent  contends  that  its  first  notice  that  the  Claimant  was \nalleging a compensable left knee injury was the AR-C filed by the \nClaimant’s  attorney  on  April  6,  2023,  which  was  received  by  the \nRespondent  on  April  10,  2023.  Thus,  even  if  the  claim  were \nsomehow  found  to  be  compensable,  Respondent  would  not  be \nliable  for  any  benefits  incurred  or  accrued  before  the  date  such \nnotice was received. \n \nC. The Claimant has not specified what medical she is seeking.” \n \n The  claimant  in  this  matter  is  a  53-year-old  female  who  alleges  that  she  sustained  a \ncompensable left knee injury while employed by the respondent. The claimant has asserted that \nshe  does  not  know  the  date  that  she  injured  her  left  knee  but  believed  that  it  occurred  in \nNovember of 2022. The claimant worked for the respondent in a chicken processing facility in a \ndepartment  called “flat  pack.”  On  direct  examination,  the  claimant  described  her  alleged  left \nknee injury as follows: \n\nSandoval – H302270 \n \n-3- \nQ And what happened to cause the injury to your left knee? \n \nA I  was  working  where  I  had  to  go  up  a  ladder  to  check  on \nproduction. \n \nQ And when you say a ladder, can you describe the ladder for \nus. \n \nA It  is  a  fixed  ladder  that  goes  really  high,  but  I  mean  really \nhigh  up. So  when  I  was  coming  down  the  ladder,  I  didn’t  see  one \nor two of the rungs and I slipped. I didn’t fall, I slipped, and that is \nwhen I felt the pain in my leg. \n \nQ So how did you land? \n \nA No.  There  are  things  on  the  side  that  I  grabbed  onto,  so  I \nhad just slid. \n \nQ Okay.  And  so  when  you  slid  down,  how  were  your  legs \nwhen you hit the floor? \n \nA So the right one – the right leg was like out and the left one \nwas pushing in (indicating). \n \n THE COURT: I  noticed  the  Claimant  made  hand  gestures \nduring her testimony. Ms. Brooks, I would ask you to try to get her \nto  be  more  descriptive  of  how  her  legs  actually  were.  As  you  are \nwell aware, we cannot – \n \n MS. BROOKS: See her. \n \n THE COURT: -- see her doing that in her transcript. \n \n MS. BROOKS: Okay. \n \nQ [BY MS. BROOKS]:  So  you  slipped  and  you  did  not  fall; \ncorrect. \n \nA No, I didn’t fall. \n \nQ So what about the slipping hurt your left knee? \n \nA When  I  slipped,  it  did  hurt  me  here  (indicating),  but  it \nwasn’t hurting all that much. \n \n\nSandoval – H302270 \n \n-4- \nQ When you say here, you were gesturing to your left knee; is \nthat correct? \n \nA Yes. \n \nQ Okay.  So  earlier  when  I  asked  you  how  you  contacted  the \nfloor,  you  were  making  gestures  with  your  hands,  which  is  okay, \nbut we also have to have the words to explain what you meant. \n So  you  appeared  to  me  to  have  your  left  arm  out  straight. \nWhat did you mean by that? \n \nA So the force hit my shin, so that is how it hurt my knee was \nthe force against my shin when I slipped down the ladder. \n \nQ Okay.  Now,  when  we  are  talking  about  a  ladder,  is  this  a \nladder  like  you  put  on  the  outside  of  your  house  to  climb  to  your \nroof or is this a ladder like stairs inside your house that you get to \nthe second floor? \n \nA So it is like an inside step stool, but it is a very tall one, so \nit has like 20 steps on it. \n \nQ And why were you climbing that, those stairs? \n \nA I   had  to  be  up  there   for  two  hours  checking  on  the \nproduction  making  sure  that  there   was  no  plastic   or   foreign \nmaterial in it. \n \nQ Okay.  So  was  it  necessary  to  come  back  down  those  stairs \nto get to any other area of the plant? \n \nA Yes. \n \nI  note  that  the  parties  in  this  matter  both  acknowledge  that  the  claimant,  who  is  Spanish \nspeaking, required the use of an interpreter and, as such, there was some difficulty in translation \nof  the  word “stairs”  as  it  appears  to  be “ladders”  at  some  points  in  testimony.  However,  both \nparties agree that the claimant was descending stairs and not a ladder. That discussion is found in \nthe hearing transcript on page 29. \n\nSandoval – H302270 \n \n-5- \n The  claimant  testified  that  she  was  going  down  the  stairs  when  her  left  knee  injury \noccurred  and  had  planned  to  go  on  her  lunch  break;  however,  after  her  injury  she  went  to  the \nnurse’s  office  to  report  her  injury  instead  of  going  on  her  lunch  break.  Following  is  the \nclaimant’s  testimony  about  her  reporting  of  her  injury  to  the  in-house  nurse  at  the  respondent’s \nfacility: \nQ And when you went to the nurses station, what did you do? \n \nA I  told  her  that  I  had  slipped  coming  down  those  steps  and \nthat my knee was hurting, but that it wasn’t a really big deal. \n \nQ And what did she do for you? \n \nA “Come back tomorrow. We will see if you get any worse.” \n \nQ And did you go back the next day? \n \nA Yes, because I was feeling worse. \n \nQ And what happened then? \n \nA She told me, “Well, let’s just give it some time because we \nare already treating your arms.” \n And  I  said, “All  right,”  but  I  didn’t  realize  that  my  knee \nwas going to get worse. \n \nQ Did you ever discuss your knee with the nurse again? \n \nA Yes. I kept going back. \n \nQ Did you ever get any treatment for that left knee? \n \nA No. \n \n I  note  that  the  claimant  was  receiving  treatment  for  her  bilateral  forearms  in  January  of \n2023, according to the respondent’s nursing notes. The claimant contends that she was receiving \ntreatment prior to January 2023 for her forearms as well. \n\nSandoval – H302270 \n \n-6- \n The  claimant  also  testified  that  she  reported  her  injury  to  Mario  Salinas,  her  supervisor, \nand  he  told  her “I  can’t  do  anything  for  you.  Go  to  the  nurse.”  The  claimant  testified  that  she \nwent to the nurse’s station several times and to her supervisor again complaining of her left knee \ninjury. It was the claimant’s testimony that she received no treatment from the respondent for her \nleft knee and was not provided paperwork to fill out regarding her left knee injury. \n On  January  13,  2023,  the  claimant  was  seen  at  River  Valley  Primary  Care  by  APRN \nZachary McBroom. Following is a portion of that medical record: \nHistory of Present Illness \nPt presents to the clinic with c/o right hip pain and left knee pain x \n3 weeks. Pt primarily speaks Spanish; translator assisted in visit. Pt \nreports  stepping  down  off  ladder  3  week  prior  which  is  what \nprecipitated  her  current  sx;  denies  falling  from  ladder  or  stepping \nto  the  ground  in  an  odd  manner.  Denies  any  specific  trauma  to \nareas of concern. Reports she has been taking ibuprofen with mild \nrelief; denies trying any other tx modalities. Reports similar sx x 3 \nyears   prior   which   she   f/u   with   a   chiropractor   for   and   was \nsuccessfully tx, denies going to chiropractor for current sx. Denies \nissues  with  ADLs  or  work;  denies  overt  issues  with  gait.  Denies \nany other sx or complaints. \n*** \nVisit Diagnosis \nPrimary right hip pain \nAcute pain of left knee \n \n The claimant was seen at Elite Chiropractic Center by Jim Schilling, DC, on January 25, \n2023. Following is a portion of that medical report from her visit: \nSubjective Complaint \nMr.  Sandoval  was  examined  today  to  determine  progress  with  the \ncurrent treatment plan. \n \nMaritza reported the following new condition today: \n5. Posterior Left Knee \nConstant  posterior  left  knee  pain.  She  considers  this  complaint  as \nmoderate to severe and rated the pain as an 8 on a scale of 0 to 10 \nwith 10 being the worst. The pain is described as sharp, throbbing, \nshooting  and  deep  and  is  radiating  into  the  left  calf.  The  pain  is \n\nSandoval – H302270 \n \n-7- \nincreased   by   prolonged   standing,   prolonged   walking,   walking \ndownstairs, walking upstairs and weight bearing. \n \nIt  has  been  2  years  since  Ms.  Sandoval’s  last  treatment  visit.  The \npatient  currently  complains  of  acute  left  knee  pain.  Pain  is  well \nlocalized  to  the  posterior  and  lateral  compartments  of  the  knee. \nPatient  reports  of  a  slip/fall  at  workplace.  The  patient  states  that \nshe  slipped  and  missed  two  steps  with  majority  of  the  weight \nlanding on the left leg (fully extended) during the fall. The patient \nstates  that  the  pain  was  immediate.  I  did  observe  significant \namount of edema on the posterolateral portion of the left knee. The \npatient was quite guarded and altered gait was noted due to painful \nrange  of  motion.  The  patient  states  the  pain  is  at  its  worst  with \nweight-bearing  position  and  somewhat  alleviated  when  resting. \nOrthopedic  examination  was  performed.  Positive  findings  include \nMcMurray  test,  Apley’s  grind  test,  the  Thessaly’s  test.  These \nfindings   indicate   the   patient   may   have   meniscus   injury   and \nsubsequent Baker’s cyst of the knee. \n \nThe claimant was provided with chiropractic treatment for her left knee injury during that visit. \nThe  claimant  continued  to  treat  for  her  left  knee  injury  with  Elite  Chiropractic,  which  included \nvisits on January 30, 2023, February 1, 2023, February 3, 2023, February 6, 2023, and February \n7, 2023. \n On  February  8,  2023,  the  claimant  was  seen  by  APRN  Erica  Fowler at  River  Valley \nPrimary Care. Following is a portion of that medical record: \nHPI: \nMaritza  A.  Sandoval  52  year  old  female  with  PMH  that  includes \nprediabetes,   HLP,   GERD,   and   asthma,   who   presents   with \ncomplaints of left knee pain that has been ongoing for the last three \nmonths. She states that she was walking down the stairs and landed \nincorrectly,    which    immediately    provoked    the    pain.    She \nsubsequently started ibuprofen and has been following up with her \nchiropractor.  More  recently,  she  states  that  her  chiropractor  took \nxrays  of  her  left  knee  and  recommended  that  she  have  an  MRI \nconducted.  She  was  seen  by  another  provider  one  month  ago  and \nstarted on Naproxen, along with a Medrol dospak, which provided \nminimal  relief.  She  continues  to  ambulate  with  a  cane  for  support \nand utilizes a knee brace intermittently. \n*** \n\nSandoval – H302270 \n \n-8- \nAssessment/Plan: \n1. Acute pain of left knee \nRefilled Naproxen. Encouraged to rest, ice, and elevate knee when \npossible, and to wear knee brace when ambulating. \n \n-naproxen (NAPROSYN) 500 mg tablet: Take 1 Tablet by mouth 2 \n(two) times daily with a meal. Dispense: 60 Tablet; Refill: 2. \n-Referral to Orthopedic Surgery \n \nThe claimant was referred to an orthopedic surgeon at that time.  \n On  March  8,  2023,  the  claimant  was  seen  at  Mercy  Clinic  River  Valley  by PA  Lauren \nWahlmeier. Following are portions of that medical record: \nHPI: \nPatient is a 52-year-old female here for evaluation of her left knee. \nShe  states  that  she  had  an  injury  a  couple  months  ago  when  she \nwas  going  up  and  down  some  stairs.  She  states  that  this  pain  is \nprimarily at the medial aspect of the knee. This pain is worse when \ngoing from a standing to a sitting position. She states that she feels \na catch in the knee with certain motions. She denies any numbness \nor  tingling  the  leg  or  foot.  No  radicular  neurologic  symptoms.  No \nfever chills or constitutional symptoms. \n*** \nAssessment/Plan: \nPatient  is  here  with  a   left  knee  sprain  with  possible  medial \nmeniscal  tear.  Plan  for  corticosteroid  injection  today  as  well  as  a \nreferral  to  physical  therapy.  Return  to  clinic  in  3  months  for \nfollow-up. \n \nThe claimant received an injection in her left knee at that time. \n On  May  5,  2023,  the  claimant  underwent  an  MRI  of  the  left  knee  at  Prime  Medical \nImaging.  Following  are  the  Impressions  from  the  diagnostic  report  from  that  MRI  by  Dr.  Leo \nDrolshagen. \nImpression: \n1.   Bone   bruises   lateral   femoral   condyle   with   undisplaced \nosteochondral lesions. Cartilaginous loss lateral compartment knee \njoint space. \n \n\nSandoval – H302270 \n \n-9- \n2.  Bone  bruise  distal  femur  at  intercondylar  notch  at  the  anterior \ncruciate ligament insertion. Partial tear anterior cruciate ligament. \n \n3. Knee effusion, with scattered bone bruises as described above. \n \n The claimant in this matter has asked the Commission to determine whether she sustained \na compensable injury to her left knee on or about November 1, 2022. It is the claimant’s burden \nto prove the compensability of her alleged left knee injury. The claimant does not recall the date \nthat the left knee injury she claims occurred, but she does recall the specific incident and the time \nof  day  that  specific  incident  occurred,  doing  so  consistently  in  deposition  testimony,  hearing \ntestimony, and conversations with medical providers.  \n The  claimant  is  able  to  show  objective  medical  findings  regarding  her  alleged  left  knee \ninjury  from  her  MRI  performed  on  May  5,  2023.  The  claimant  must  also  prove  a  causal \nconnection between those objective medical findings and the injury she alleges. The respondents \nhere contend that the claimant did not report a work-related injury to her left knee until she filed \nan  AR-C  form  on  April  6,  2023.  The  claimant  testified,  and  I  find  that  she  did  so  truthfully, \nreporting her injury immediately following the occurrence to her supervisor and then reporting to \nthe  nurse’s  station.  The  respondent  has  introduced  documents  into  evidence  in  the  form  of \nnursing notes from its facility nursing staff. The notes introduced first discuss a “knee condition” \non  March  6,  2023.  That  knee  condition  is  described  in  the  nurse’s  note  as  a “personal”  knee \ncondition. However, a few days later, a nurse’s note from March 10, 2023, states: \nReceived  return  to  work  note  from  TM  with  restrictions  stating, \n“desk  duty  downstairs  preferred.”  No  positions  available  on  the \nfloor, but TM has restrictions set by work comp  doctor where she \ndoesn’t have to go up or down any steps. If this becomes a problem \nTM will be advised to get an updated note regarding her knee from \nthe doctor. \n \n\nSandoval – H302270 \n \n-10- \n In  the  claimant’s  hearing  testimony  and  deposition  testimony,  the  claimant  testified  that \nshe reported her injury to Mario Salinas, her supervisor, and to a nurse at the nurse’s station. In \nfact, the claimant provided a photograph of the  nurse she  reported her left knee injury to at her \ndeposition which was taken on July 27, 2023, and introduced into evidence in this matter, to the \nrespondent’s  attorney.  I  find  the  claimant’s  testimony  to  be  credible  about  her  reporting  of  the \ninjury.  The  only  evidence  that  disputes  that  testimony  is  the absence  of  records  from  the \nrespondent  showing  that  it  occurred,  and  a  nursing  note  about  the  claimant’s  personal  knee \ncondition.  \n The  claimant’s  testimony  was  consistent  to  medical  providers  about  how  her  injury \noccurred,  and  her  left  knee  MRI  certainly  shows  derangement  that  one  would  expect  from  the \nincident she describes. \n The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  sustained a \ncompensable left knee injury in November of 2022 while employed by the respondent. I note that \nthe respondent also contended that the claimant was not performing employment services at the \ntime of her compensable injury. The claimant was going to a lunch break at that time; however, \nthe  claimant’s  job  required  her  to  climb  stairs  to  a  high  point  in  the  facility.  The  claimant  was \ncertainly  performing  employment  services  for  the  respondent  while  she  was  descending  down \nfrom  a  height  her  job  duties  required  her  to  be  at,  as  the  claimant  had  not  even  returned  to  the \nproduction floor level when her injury occurred. \n The  claimant  has  asked  the  Commission  to  determine  if  she  is  entitled  to  medical \ntreatment for her compensable left knee injury. After a review of the medical records submitted \ninto  evidence,  I  find  that  the  treatment  provided  to  the  claimant  in  evidence  is  reasonable \nnecessary   treatment   for   her   compensable   left   knee   injury.   The   claimant   is   entitled   to \n\nSandoval – H302270 \n \n-11- \nreimbursement for any out-of-pocket expenses and to reasonable necessary medical treatment for \nher compensable left knee injury. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe  her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nMay 22, 2023, and contained in a Pre-hearing Order filed May 23, 2023, are hereby accepted as \nfact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  sustained a \ncompensable injury to her left knee on or about November 1, 2022. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nmedical  treatment  for  her  left  knee  injury,  including  reimbursement  for  out-of-pocket  expenses \nfor medical treatment submitted into evidence in this matter regarding her left knee. \n 4. The respondent failed to prove its lack of notice defense in that I find that the claimant \nreported  her  injury  immediately  after  it  occurred  to  her  supervisor  and  then  to  a  nurse  at  the \nrespondent’s nursing facility. \n ORDER \nThe  respondents  shall  pay  for  reasonable  necessary  medical  treatment  regarding  the \nclaimant’s   compensable   left   knee   injury,   including   out-of-pocket   expenses   for   treatment \npreviously provided to the claimant that was introduced into the record in this matter. \n\nSandoval – H302270 \n \n-12- \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":21365,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H302270 MARITZA SANDOVAL, Employee CLAIMANT TYSON FOODS, INC., Employer RESPONDENT TYNET CORP., Carrier RESPONDENT OPINION FILED JANUARY 3, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant repre...","outcome":"granted","outcomeKeywords":["granted:4","denied:1"],"injuryKeywords":["knee","back","hip","sprain"],"fetchedAt":"2026-05-19T22:58:02.657Z"},{"id":"alj-H107908-2024-01-02","awccNumber":"H107908","decisionDate":"2024-01-02","decisionYear":2024,"opinionType":"alj","claimantName":"Jessie Ellis","employerName":"City Of Conway","title":"ELLIS VS. CITY OF CONWAY AWCC# H107908 JANUARY 2, 2024","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ELLIS_JESSIE_H107908_20240102.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ELLIS_JESSIE_H107908_20240102.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H107908 \n \nJESSIE D. ELLIS, EMPLOYEE            CLAIMANT \n \nv. \n \nCITY OF CONWAY, EMPLOYER             RESPONDENT \n \nARKANSAS MUNICPAL LEAGUE, \nWORKERS’ COMPENSATION TRUST             RESPONDENT \n \nOPINION FILED JANUARY 2, 2024 \n \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy,  on  the 26\nTH\n  day  of \nSeptember 2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant  is  represented  by  Mr.  Eddie  H.  Walker,  Jr.,  Attorney-at-Law  of  Fort  Smith, \nArkansas. \n \nRespondents  are  represented by  Mr.  Jarrod S.  Parrish,  Attorney-at-Law  of  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on the 26\nth\n day of September, 2023.  At the time of the \nhearing the issues were clarified to be as follows: (1)  Compensability of the claimant’s \nclaimed  closed  head  injury;  (2)    Medical  in  regard  to  the  closed  head  injury;  and  (3) \nattorney’s  fees.    All  other  issues  were  reserved,  specifically  the  issue  of  TTD.  The \nrespondents contended a work-related injury was not the major cause of any permanent \ninjury,  that  the  claimant  was  at  maximum  medical  improvement  and  that  additional \nmedical  treatment  was  not  reasonable  and  necessary.    The  parties  stipulated  that  the \nArkansas  Workers’  Compensation  Commission  had  jurisdiction  of  the  claim  and  an \nemployer-employee relationship existed on  or about June 17, 2020, when the claimant \nsustained a compensable work-related injury abrasion to his head above his eye, his left \nknuckle, and  his  knee.    At the  time of  the  injury,  the  claimant  was earning  an  average \n\nELLIS – H107908 \n \n2 \n \nwage of $809.95, sufficient for a TTD/PPD rate of $534.00 / $401.00, respectively.  The \nclaimant reached maximum medical improvement on September 14, 2021, based upon \nthe opinion of one physician.  A copy of the Prehearing Order was marked “Commission’s \nExhibit 1” and made part of the record without objection.          \n The  claimant’s  and  respondents’  contentions  were  all  set  out  in  their  responses \nand an amended response to the prehearing questionnaire and made a part of the record \nwithout objection.  Two (2) witnesses testified at the time of the hearing.  \n An issue developed involving the transcript and the representatives of the parties \nwere  contacted  in  an  attempt  to  resolve  the  problems.    A  phone  conference with  the \nparty’s representatives was held on the afternoon of December 20, 2023, making them \naware of the issues.  The parties’ respective representatives worked diligently to resolve \nthe  problems,  while  diligently  representing  their  respective  client  interests  and  the \nadministration of justice, and a copy of the correspondence as well as a corrected index \nof the transcript that was agreed upon by the parties and consequently adopted by the \nadministrative law judge is hereby blue backed and attached to this opinion.   \nFrom  a  review  of  the  record  as  a  whole,  to  include  medical  reports  and  other \nmatters properly before the Commission; and having had an opportunity to observe the \ntestimony and demeanor of the witnesses, the following findings of fact and conclusions \nof law are made in accordance with Arkansas Code Annotated § 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That  an  employer/employee  relationship  existed  on  or  about  June  17,  2020, \nwhen the claimant sustained a compensable work-related injury abrasion to his \nhead above the eye, his left knuckle, and left knee.   At the time, the claimant \n\nELLIS – H107908 \n \n3 \n \nearned an average weekly wage of $800.95 a week, sufficient for a TTD/PPD \nrate of $534.00 / $401.00 per week, respectively. \n \n3.  That the claimant has failed to establish a compensable closed head injury with \nmedical evidence supported by objective findings. \n \n4.  That  consequently,  the  claimant  is  not  entitled  to  additional  medical  and \nattorney fees at this time. \n \n5.  That all other issues are reserved. \n  \n6.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n  \nThe Prehearing Order along with the prehearing questionnaires of the parties and \nthe claimant’s amended response to the prehearing questionnaire were admitted into the \nrecord  without  objection.    The  depositions  of  Dr.  Barry  Baskin;  Tobi  Taylor,  LPC; \nDetective Steven Spurgis; and Chief William Tapley were all made part of the record.  In  \naddition,  the  claimant  and  the  respondents  submitted  medical  records  along  with \nnon-medical  records  that  were  admitted  without  objection.  It  was  also  noted  that  the \nrespondents  reserved  the  right  to  take  the  Chief’s deposition at the beginning  of  the \nhearing. \n The  initial  witness  to  testify  was  Olivia  Whithead  who  testified  she  was  the \nclaimant’s fiance and had known him for about eight (8) years.  In June of 2020, she was \ndating the claimant while he worked for the Conway Police Department.  She described \nhim  at  the  time  as  being, “very social, very popular, kept a lot of friends, very public \npersonality” and was an athlete.   She became aware that he was involved in an accident \nwhile working with the Conway Police Department when he came home with a wound on \nhis  head  and  he  seemed  lethargic  and  dazed.    Prior  to  June  16,  2020,  he  had  not \n\nELLIS – H107908 \n \n4 \n \ncomplained of headaches, nausea, or vomiting, and she had never witnessed him vomit. \n(Tr. 5-7)  Since June 16, 2020, she testified he avoided social situations, interactions, and \nmeeting people, and he had not behaved like that prior to the accident. (Tr. 8)  In regard \nto the accident, she stated that prior to the accident, “he would go out and take off with \nfriends, we would be in places where you had to interact with people more.”  He was an \naccomplished  video  game  player  but  after  the  accident,  his  skill level was “completely \ndifferent.” (Tr. 9) \n Under cross-examination, Ms. Whitehead stated that she worked as a barrista and \nagreed she had never worked in the field of mental health, was not a physician,  and was \nnot qualified to issue any type of medical opinion or diagnosis.  \n The claimant was then called to testify.  He stated he was injured while working at \nthe Conway Police Department performing a “vehicle pursuit drill.”  We were chasing the \nsuspect who was actually another officer involved in the drill, when the so called suspect \nstopped his car and started running and the claimant gave chase.  He described himself \nas a big guy, 6’ 5‘’, and 300 pounds.  While chasing the significantly smaller suspect, he \nreached out to catch him, overextended, and fell, hitting his head on the sidewalk.  He \nthen clarified and stated, “I hit the corner of my head on the curb of the sidewalk.”  He \nstated  that he felt senseless when he hit the curb, seeing black.  “When I was able to \nopen my eyes, it seemed like stars or like TV static almost, and it took me like 10 or 15 \nseconds to even be able to stand up after I hit my head.”  He thought he didn’t actually \npass  out.  (Tr.  11-13)   He  felt  that he  had  scrapped  his  arm  in  an attempt  to  shield  his \nhead.  He also admitted he was an offensive linemen when he played football, and had \nbeen hit but denied being hit “specifically in the head.” (Tr. 14)   \n\nELLIS – H107908 \n \n5 \n \nAfter the incident, he was taken to Baptist Hospital, which was just down the street, \nby his supervisor, Spurgis, and while in the emergency room, he stated he threw up.  He \ncouldn’t remember the last time he threw up prior to the accident and denied throwing up \nwithin the last month prior to the accident.   His supervisor observed him vomiting.  He \nstated that his supervisor agreed in his deposition that he had not observed the claimant \nthrow  up  while  riding around  with  the  claimant  in a patrol  car  prior  to  the  incident.  The \nclaimant  also  admitted  that  he  returned  to  the  hospital  because  he  was  “extremely \ngroggy.”   He  returned  to  the  hospital, “because like obviously I was different.  I knew \nsomething was off.  I was sleeping way too much and I felt sick.  I felt lethargic, and that’s \nwhy I felt there was cause for concern,  and I went back.”  He grew up in Conway and \nknew the city like the back of his hand and after the incident, while patrolling, he would \nget  lost,  so  he  went  to  see  Dr.  Johnson.    He  stated  he  was  getting  a  lot  of  calls  and \neventually his supervisor had to drive. (Tr. 15-18)   \nHe  was  sent  to  Dr.  Johnson  by  the  Conway  Police  Department.    Prior  to  the \naccident, the claimant felt that he did not have any kind of emotional problems and that \nhe was “overtly happy.”  He admitted that he had grown up in a family household where \nthere was some abuse to his mother and he had volunteered this information to determine \nif he was suitable to become a Conway police officer because if he wasn’t mentally ready, \nhe wanted to be forthcoming.  He felt that he did not have any mental problem.  He did \nnot try to hide anything from the Conway Police Department in regard to his psychological \nevaluation.  “I felt like I would be the officer that people wanted to see policing, and not \nthe  jerks  from  wherever,  so  I  felt  like  I  could  be  the  good  guy,  essentially.” (T. 19-21)  \nWhen  it  was  determined  he  was  not  able  to  be  a  police  officer,  he  stated  it  was \n\nELLIS – H107908 \n \n6 \n \n“devastating” and changed everything.  “I mean, just because I was kind of anxious, at \nthe time I was like, you know, when somebody’s following me, but I never had like any \nsolid evidence, so there was like, you know, it was just in the back of my head.”  “And \nthen to find out that it’s real, it led to like what else is also, you know, like it just put crazy \nthoughts  in  my head,  like  it  just  shot  my enzymes  to  new  levels  that  like  I  still  feel the \neffect of today.”  He denied ever being treated for depression or anxiety prior to June 16, \n2020. (Tr. 22-23)  He stated that he felt he needed additional medical treatment because \nhe still had cognitive issues, like handling keys or smaller things and that he didn’t have \nthis problem earlier.  He  now has problems with hand/eye coordination and  with blurry \nvision.  There are times he feels that he can’t leave the house because he’s convinced \nhe is being watched.  He is extremely anxious and depressed at times.  He had none of \nthese problems prior to the head injury.  Prior to the accident, the claimant stated he was \na  well  above  average  video  game  player  and  “pretty  well  ranked  with  almost  any \ncompetitive game” that he played, but his performance level changed for the worse after \nthe  accident.  (Tr.  24-25)  He  currently was  employed  by  Shamrock  Foods  where  he \ndelivers food.       \n Under cross-examination, the claimant stated he was  twenty-five (25) years old, \nand when asked if he had been knocked unconscious in the incident, he responded, “I \ncan’t say for sure.  I can’t do it.  Literally it’s like I see ground coming and then it’s black, \nand then I can’t open my eyes but I’m sitting up.”  The claimant did agree that if he had \nbeen knocked unconscious, it could be assumed that he would have told the ER doctors \nwhen he checked in.  The claimant also admitted that he didn’t require any type of stitches \nor staples or anything above his eyebrow. (Tr. 26-28) \n\nELLIS – H107908 \n \n7 \n \n The claimant admitted he had treated with Dr. Baskin after being treated by Dr. Gil \nJohnson.  He admitted Dr. Baskin was the point man in regard to referring the claimant \nout for tests and evaluations and also agreed that he was open with him about everything \nhe could remember.  He also agreed his girlfriend had attended several visits. (Tr. 29-30)  \nHe admitted to an episode of Bell’s Palsy while in school which caused the right side of \nhis  face  to  droop  and  consequently  one  of  his  eyes  is  a  little  lower.  (Tr.  31)   He  also \nadmitted that he could currently drive and drove a moving truck from Arkansas to Arizona \nwhere he currently lives, a trip of seventeen (17) to eighteen (18) hours.  He also admitted \nvacationing in Hawaii while still treating with Dr. Baskin and to a driving evaluation with \nBaptist   Rehab.      He   did   not   dispute   his   normal   neurological   and   psychological \nexaminations  on  his  initial  ER  visit  and  the  CT  scan  of  his  head  which  showed  no \nabnormalities.  He also agreed the MRI report of his head and brain were normal.  He did \nnot remember a nerve conduction study by Dr. Baskin, but didn’t dispute any medical \nevidence  in  the  packet.   He  also  agreed  Dr.  Baskin  referred  him  to  a  specialist  for a \ndetailed eye examination, and the exam did not find anything wrong with his eyes.  The \nfollowing questioning then occurred: \nQ. So if none of your diagnostic tests show any abnormalities, you will agree \nwith me that we’re left to rely on your statements and your reporting to assess your \nsituation and the condition that you’re alleging?  Do you agree with that? \n \nA. No. \n \nQ.   Well, if there are no objective physical findings on the tests that have been \nrun, then we’re basically stuck with what you’re telling nurses, correct? \n \nA.   Oh, I’m sorry. Yeah. (Tr. 34 - 37) \n \nThe claimant also admitted seeing Dr. Zolten, a neuropsychologist, for a battery of \ntests.  He was not aware that Dr. Zolten had opined that he had displayed inconsistent \n\nELLIS – H107908 \n \n8 \n \neffort and over reporting of psychological symptoms and possible psychological overlay. \n(Tr. 38) \nThe  claimant  admitted  that “on  paper”  he  was  making  more  while  working  for \nShamrock Foods than he was while working as a prospective policeman, and worked the \nday shift.  He also admitted he had returned to the Conway Police Department after the \naccident and worked for a few days on patrol and then moved to the record department, \nwhere he continued until September of 2021.  There were no restrictions in regard to the \nabrasions on his arms or legs and it had healed up in its normal course. (Tr. 39-40) \nOn redirect, claimant responded okay to the question that the emergency room, \nalong  with  additional  medical  records,  referred  to  his  injury  as  a  closed  head  injury  as \nopposed to a brain injury. (Tr. 41)   He also admitted the records referred to a concussion \nand he did not specifically know what was causing his problem.  He also agreed that if \nthe  medical  providers  referred  to  his  condition  as  a  closed  head  injury, that’s what he \nprobably had. (Tr. 42-43) \nThe  deposition  of  Dr.  Barry  Baskin  was  taken  on  March  9,  2022.  Dr.  Baskin \ntestified that he had been working as a physical medicine and rehab doctor in Little Rock \nsince July of 1991.  The first time he saw the claimant was September 3, 2020. (Cl. Ex. \n2,  P.  6-7)  He stated the claimant had a negative work up and “didn’t really have any \nsignificant objective problems, and his exam was not really particularly impressive either.  \nI mean, he had -- I guess he was -- his ability to give a history and to stay on track was -\n- he was kind of all over the place and -- but, again, his neuro exam was normal.  He had \na normal gait; he had normal movements, and I just felt like we -- that based on what I \nsaw, which again, there weren’t a lot of hard objective findings, but he complained of not \n\nELLIS – H107908 \n \n9 \n \nsleeping well, blurred vision, irritability, and so I felt like we needed to work him up a little \nbit further.”  (Cl. Ex. 2, P. 8)  He went on to state that if the claimant had hit the concrete \nin  a  really  direct  way  and  had  a  bleed  or  skull  fracture  or  something  that  was  clearly \nmeasurable,  he  felt  that  you  could  see  it  on  the  initial  scans.    However,  he  felt  the \ncomplaints were “bothersome enough” the claimant needed to be checked out.  He went \non to explain that a closed head injury was when somebody had trauma to their head, \nusually  blunt  trauma,  not  penetrating  trauma,  and  you  don’t  have  to  have loss  of \nconsciousness.  A traumatic brain injury is when there was trauma to the head and you \nhave findings on the imaging studies where you might see a skull fracture or a subdural \nor epidural bleed inside the skull.  A concussion is when people essentially have a blow \nto the head and they have some alteration of their level of consciousness.  They may be \nknocked out and their mental  status  may  be  altered  in  some  way.  He went ahead \nand stated, “I think he fell -- it looked -- it sounded like he fell, hit his head, and  had a \nclosed head injury without any positive findings on his imaging studies.” (Cl. Ex. 2, P. 9-\n10)  Dr. Baskin agreed a scar above the eyebrow as a result of a fall could be considered \nobjective evidence. (Cl. Ex. 2, P.11)  Dr. Baskin also testified there were a lot of symptoms \nassociated  with  a  closed  head  injury  which  could  include  headaches,  blurred  vision, \nmemory  loss,  loss  of  concentration and  focus,  inability  to  do  things  that  they  could  do \nbefore without difficulty, and vomiting. (Cl. Ex. 2, P.12) \nDr. Baskin was then questioned about the brain being shaken, and stated a brain \ncould  float freely  around  in the  skull  which  is  called a  coup-contrecoup  injury,  and  you \nknow it due to a bruise on the brain on the exact opposite point and that was not seen in \nregard to the claimant and there were no measurable findings. (Cl. Ex. 2, P.13) “I would \n\nELLIS – H107908 \n \n10 \n \nthink the more mild the trauma, the less likely the outward objective findings would be.”  \nHe agreed that MRI’s and EEG’s were not 100% accurate. (Cl. Ex. 2, P.15) \nDr. Baskin referred the claimant to Michelle Cox, a speech language pathologist, \nwho  did  find  evidence  of  some  loss  of  executive  function,  so  the  claimant  was  then \nreferred to Dr. Magiera-Planey, a neuropsychologist to further check the claimant out.  He \nalso stated that he used Dr. Zoten the most. (Cl. Ex. 2, P.16 - 17) \nDr. Baskin was questioned about feeling the claimant should not return to police \nwork.  He responded the claimant appeared anxious and depressed at times, and, “Dr. \nZolten felt that the claimant had enough emotional overlay that he didn’t think he was safe \nto go back and be out on patrol carrying a gun.” (Cl. Ex. 2, P.19)  He went on to state the \ntwo (2) neuropsychologists didn’t think that he had really very much if any, cognitive loss, \nand his cognition was pretty good.   The claimant did seem to manifest more emotional \nand behavioral things Dr. Baskin felt was likely to affect him returning to work.  (Cl. Ex. 2, \nP.21)  \nIn  regard  to  objective  evidence,  Dr.  Baskin  testified  he  felt  that  the  objective \nfindings came more from Dr. Magiera-Planey and Dr. Zolten’s evaluations.  He felt the \nclaimant’s behavior was “just a little off plumb.”  He appeared to be “addled.” (Cl. Ex. 2, \nP.23) \nDuring the examination by the respondent’s attorney, Dr. Baskin was questioned \nabout the mention of an adjustment disorder.  He stated that the adjustment disorders he \nfrequently sees with people with a head injury are seen with mixed anxiety or depression.  \nThey are not sleeping well. Their mood can be down a bit. (Cl. Ex. 2, P.31)  He thought \nDr. Zolten said PTSD, but it wasn’t real clear and it alluded to the fact of the claimant’s \n\nELLIS – H107908 \n \n11 \n \nhome life while growing up.  Dr. Magiera-Planey didn’t diagnose that and Ms. Taylor, the \nprofessional counselor, thought he had more of an adjustment disorder and not PTSD. \n(Cl. Ex. 2, P.32) \nDr.  Baskin  was  specifically  asked, “you  are  not  prepared  to  state  within  a \nreasonable  degree  of  medical  certainty  Mr.  Ellis  has  an  adjustment  disorder  related  to \nthis  fall  during  police  training,  are  you.”    He  responded, “I  don’t  --  I can’t  say  with \nreasonable medical certainty what it’s from.”  Dr. Baskin also provided he did not think \nthat the claimant had PTSD at all. (Cl. Ex. 2, P.33)   He was also asked if the neuropsych \ntesting was removed from the equation in the claimant’s case, “is there any objective \nevidence to establish the presence of traumatic brain injury, closed head injury?”  He \nresponded,  “None  -- not  any  measurable  objective  findings.”  (Cl.  Ex.  2,  P.35)   He \ndescribed the claimant as addled, and consequently, that was why he ran this by so many \npeople.  He described addled as when they would have a conversation in his office, “he \nwould sort of bounce -- he would bounce around, bounce all over the place.  He wouldn’t \nstay on track.  He doesn’t -- this is another thing.  I don’t know why he has this, but Jessie \ndoesn’t make eye contact.  You and I, and Mr. Walker and I, can look at each other in the \neye, and we’ve been doing this here for a little while today.  Mr. Ellis never looks you in \nthe eye.  He’s looking around; he doesn’t -- he avoids eye contact.  As a matter of fact, \nhe will go for almost an entire appointment with his eyes shut.”  (Cl.  Ex.  2,  P.36)  Dr. \nBaskin was also questioned about his report where it provided that, “he was on the outside \nlooking in at himself like he was an observer,” which was mentioned several times and \nwas  unusual.    Dr.  Baskin  agreed  there  was  no  objective  basis  to  explain  the  above \nphenomenon.  He agreed it was hard to determine how much of the claimant’s problems \n\nELLIS – H107908 \n \n12 \n \nwere premorbid versus post-traumatic. (Cl. Ex. 2, P.43-44)  He also agreed the CT of the \nclaimant’s head early in the claim was normal, the MRI on July 30, 2020, returned normal \nresults, and there were repeated normal neurological exams by various physicians.  The \neye doctor didn’t find any abnormalities, hemorrhages, a detached retina, or evidence of \ntrauma  in  the  eye.    X-rays  were  normal  on  February  20,  2021,  and  there  was  also  a \nnormal EEG on February 24, 2021.  The following question was then asked: \nQ. If someone truly had a traumatic brain injury or closed head injury, would \nyou  expect  them  to  have  no  evidence  of  any  damage  to  their  brain  across  the \nspectrum of all those tests and examinations? \n \nA. It would be unusual to have somebody have all those tests and evaluations \nand not have any positive objective findings.  Again, I have seen people that had \nno  findings  on  scans,  and  they  were  clearly --  had  had  a  head  injury  and  had \nalteration  of  their  level  of  consciousness,  but  more  times  than  not,  I  would say \nsome of those would be positive.  You would expect, more times than not, some \nof those things to be positive than for all of them to be negative. (Ex. 2, P.45-46) \n \nDr. Baskin stated that Dr. Magiara-Planey didn’t find a lot of things wrong either and he \nagreed that Dr. Zolten’s assessment found no neurocognitive deficits based on his battery \nof  tests and didn’t  find  any  substantial  findings.    Emotionally  and  behaviorally,  t   he \nclaimant did. (Cl. Ex. 2, P.47)  Dr. Baskin also stated that in regard to the neuropsych and \nthe psychological counselor and the speech therapy and the two neuropaths together -- I \nshouldn’t say one but both, those things would lead me to believe that he does have some \nemotional behavioral deficits as a result of this injury, I have essentially labeled him as an \nadjustment  disorder.  “Dr. Zolten labeled him differently, and so  --  but  based  on  the \nquestion you are asking, I would say, yes, the neuropsych reports are probably the thing \nthat  led  me  there  more  than  anything  else.    However,  Dr.  Baskin  again  stated  that  he \ncould  not  say  with  a  reasonable  degree  of  medical  certainty  that  the  adjustment  order \nwas  causally  related  to  his  work  injury,  stating  that  it  was  not  clear  to  him.  (Ex. \n\nELLIS – H107908 \n \n13 \n \n2, P.50-51)  He agreed with the report note of Counselor Taylor of June 23, 2021, which \nprovided she could not say that the PTSD stemmed from the accident.  Dr. Baskin was \nunable to identify any objective evidence supporting the existence of a brain injury or the \nexistence of a mental or psychological or emotional disorder. (Cl. Ex. 2, P.53-54)  \n Dr. Baskin was again questioned by claimant’s attorney and was asked if the \nclaimant hit his head hard enough to have objective evidence of a head injury, would that \nhave  been  sufficient  trauma  to  cause  some  shaking  of  his  brain?   He responded, “It’s \npossible.  It would require speculation on any of our parts, I believe, because we don’t \nhave any objective findings to quantify that.”   In regard to vomiting right after the accident, \nthat,  “further  indicates  that  he  had  a  pretty  significant  trauma  to  the  head.” (Cl.Ex.2, \nP.58-59) \n The respondent’s attorney then questioned Dr. Baskin and asked if he could state \nwithin  a  reasonable  degree  of  medical  certainty  that  there  was  movement  of  the \nclaimant’s brain at the time of the accident, and Dr. Baskin responded he could not.  He \nalso  again  agreed  that  there  was  no  determination  of  bruising of the  brain  and  that he \ncould  not  say  with  a  reasonable  degree  of  medical  certainty  that  the  emotional  or \nbehavioral  injuries  were  related  to  the  accident  and  that  findings  of  such  would  be \nsubjective. (Cl. Ex.2, P.60-63)  \nThe deposition of Tobi Taylor, LPC, taken on April 4, 2023, approximately a little \nover a year after the deposition of Dr. Baskin, was also introduced into the record.  The \ninitial questioning was by the attorney for the claimant.  Ms. Taylor testified she was a \nLicensed  Professional  Counselor  who  does  a  mix  of  therapeutic  approaches  which \ninclude  trauma  therapy  and  cognitive  behavior  therapy  and  she  works  with  a  full  age \n\nELLIS – H107908 \n \n14 \n \nrange of people.  She admitted she had provided therapy to the claimant and believed \nthe  claimant  performed  his  original  testing  at  their  facility  for  the  Conway  Police \nDepartment.  (Cl.  Ex.3,  P.5)    She  understood  he  required  therapy following  a  training \naccident.  Intake information provided he had hit his head on the curb and had headaches, \nvisual disturbances, and aphasia. He reported confusion, loss of his sense of direction, \nfrequent unwarranted mood changes, anger issues, and sleep disturbance issues.   \nBased  upon  the  initial  intake  information,  she  stated  she  gave  the  claimant  a \ndiagnosis of adjustment disorder with mixed anxiety and depressed mood, which was a \nDSM criteria.  She stated an adjustment disorder criteria would be within the last six (6) \nto  twelve  (12)  months  after  he  had  a  life  event  or  an  experience  that  brought  on  the \nchanges  in his mood and  personality.  There were qualifiers to  an adjustment disorder, \nand based upon the information the claimant provided, he was experiencing depressive \nepisodes  and  anxiety  symptoms  which  was why  he  was  given a  mixed  diagnosis.    No \ntesting was given at the time in order to determine or make the diagnosis.  The only testing \nat that time was the original testing for the Conway Police Department.  She also stated \nthat  she  did  a  Post-Traumatic  Stress  Disorder  rule  out  which  means  that  upon  further \nexamination and time spent with him she was going to start looking for trauma-associated \nsymptoms,  stating  she  did  not  have  enough  information  at  the  intake  to  make  that \ndiagnosis.  She thought the diagnosis was still a possibility, but based upon her time with \nhim, she did not go back and change the diagnosis to post-traumatic stress.  She agreed \nDr. Baskin had recommended additional testing and treatment of the claimant which was \nnot approved.  Her last treatment of the claimant was on September 9, 2021, and it was \nher opinion the claimant still needed additional treatment. (Cl. Ex.3, P.6 - 9)  She stated \n\nELLIS – H107908 \n \n15 \n \nshe  performed  EMDR  sessions  which was  a  trauma  therapy  which  stands  for  Eye \nMovement Desensitization and Reprocessing and she thought the claimant would benefit \nfrom  having  additional  sessions.    It  was  evidence  based  and  when  asked  if  he  could \nmanipulate the treatment, she stated, “I mean I guess everything could be manipulated.”  \nShe described that evidence based meant there was evidence to support the efficacy of \nthe treatment and it was objective. (Cl. Ex.3, P.10 -11)  She testified that a CBT session \n(cognitive  behavioral  therapy)  was  a  way  to  change  your  thoughts  and  behavior.    It \nworked by the therapist asking direct questions in an attempt to get to the target issue \nand  to  make  people  think  through  their  behavioral  responses.    It  helped  you  be  more \nmindful on the front end to understand where thoughts and behaviors were coming from.  \nShe admitted she treated a lot of trauma induced conditions, but when asked if there were \nany  type  of  validity  processing,  she  responded  that  the  client was  the  only  source  of \ninformation  typically  for  her.  (Cl. Ex.3,  P.12-13)  She  also  admitted  she  had  reviewed \nsome psychological testing on the claimant and that testing would include validity checks, \nbut if somebody was telling me, “I’m having these symptoms,” then, “I don’t have a way \nto refute that they’re having those symptoms.” (Cl. Ex.3, P.14)   Ms. Taylor stated that in \nregard to physical manifestations in regard to closed head injuries, again they would be \noutside of her scope. (Cl. Ex.3, P.16)  She was specifically asked, “Is it not important for \nyou  to  determine  what  you  believe  is  the  triggering  event  in  order  to  properly  provide \ntherapy?”  She responded, “No, because I’m treating the symptoms.  I’m treating what -- \nhow it shows up in his daily life, because I am not the medical doctor.” (Cl. Ex.3, P.18) \nUnder questioning by the respondent’s attorney, Ms. Taylor testified that she was \nnot providing an opinion the claimant had suffered a traumatic brain injury, “because I am \n\nELLIS – H107908 \n \n16 \n \nnot qualified to do so.” (Cl.  Ex.3,  P.34)   She also  agreed  she  was not opining  that  the \nclaimant had any permanent restrictions or limitations because, “There’s no way I could \nbe.” (Cl. Ex.3, P.45)  She could not say with any degree of medical certainty that he had \na PTSD diagnosis associated with the accident. (Cl. Ex.3, P.48)  She agreed she based \nher opinions and her treatment model for the claimant on what he had told her. (Cl. Ex.3, \nP.50)  She also had no evidence to rebut the statement by Dr. Zolten that the claimant \nhad  no  cognitive  deficits,  stating, “I don’t test for a cognitive deficit.” She performs no \ntesting on her own. (Cl. Ex.3, P.53-54)  What the claimant can or can’t do involving work \nis ultimately based upon what the claimant is telling her. (Cl. Ex.3, P.62 - 63)  She was \nthen asked the following questions: \nQ, Okay.  This adjustment disorder with depression, anxiety, panic attacks, you \nare not providing an opinion that this is causally related to him tripping and falling, \nwith a reasonable degree of certainty, are you?  \n \nA.  I can only respond to what he -- the information that he gave me and the \ninformation that I have in his record. \n \nQ.   Okay. \n \nA.   And  you  say  that  the  time  of  the  intake  he  met  the  diagnostic  criteria  for \nadjustment disorder mixed. \n \nQ.  Okay.  But  you’re   not  providing  a  causation  opinion  as  to  what  has \ncaused --  \n \nA.   My  only opinion  is  that  he  reports to  me that  all of these  symptoms were \neither started or magnified post-accident. \n \nQ.  Okay.  And that’s not really an opinion; it’s a --  \n \nA.   It’s a reporting of what he --   \n \nQ.  -- repetition of what he said.  Right? \n \nA.   Yes.  Uh-huh.   \n \n\nELLIS – H107908 \n \n17 \n \nQ.   Okay.  So, ultimately he’s in control as far as what the diagnosis is based \non what he reports to you as a clinical professional. \n \nA.   Yes.  (Cl. Ex.3, P. 63 - 64) \n \nThe  deposition  of  Detective  Steven  Spurgis  was  also  made  part  of  the  record \nwithout objection.  Detective Spurgis admitted he was the claimant’s training officer and \nrecalled  the  claimant  being  involved  in  an  incident  at  work  on  June  17,  2020, while \nworking  together  that  involved  a  fall.    He  remembered  seeing  an  abrasion  on  the \nclaimant’s head.  He stated the claimant did not appear any different immediately after \nthe  fall,  but  became  nauseous  and  sick  while  at  the  hospital,  where  they waited  to  be \nchecked out.  He agreed the claimant had not complained about being nauseous and sick \nprior to the accident.  He felt that the claimant seemed fine his first couple of shifts after \nthe accident.  He also testified that the claimant was grading poorly prior to the accident \nand that he was concerned about the claimant being able to perform the duties of a patrol \nofficer. (Cl. Ex. 5) \nThe deposition of Chief William Tapley was also entered into the record without \nobjection.  He admitted knowing the claimant but stated he was not the Chief of Police \nwhen the claimant was hired.  The claimant was given a conditional offer when hired and \nhad to take a psychological evaluation and a drug test.  After the injury, the claimant was \ngiven a limited-duty job, which would not have happened unless someone in the Conway \nPolice Department made the determination that he had sustained a job-related injury.  He \nhad no, “idea about his injuries or his diagnosis.”   The Chief agreed that he made the \ndecision to terminate the claimant’s employment.  Based upon the claimant’s file, he felt \nthe claimant would not have been released to patrol on his own.  Chief Tapley testified \nthat  there  was  an  extensive  training  period  which  lasted  about  eight  (8)  months in  the \n\nELLIS – H107908 \n \n18 \n \nprocess of becoming a patrolman and the candidate was constantly being evaluated.  He \nalso  stated  there  was  no  mention  of  physical  limitations  by  the  claimant  during  their \nconversation involving the claimant’s termination. (Cl. Ex. 6)    \nClaimant’s Exhibit  One  which  consisted  primarily  of  medical  records  was  made \npart of the record without objection and consisted of 159 pages plus a four-page index.  \nIt provided that the claimant was seen by Dr. Gil Johnson on December 18, 2019, related \nto  ptosis  of  the  right  eye.  The  claimant  obtained  a  preemployment  psychological \nscreening on December 19, 2019, which provided that the test and interview did not reflect \nemotional or behavioral traits that are associated with psychological disorders or chronic \nemotional or maladjustment, or which would preclude certification as a law enforcement \nofficer. (Cl. Ex. 1, P. 1 – 5)   \nEmergency room medical reports of June 17, 2020, were also part of this exhibit.  \nAn abrasion of the left eyebrow, left hand, and right lower extremity were noted on the \nvisit diagnosis.  The arrival complaint referred to a hand injury. The report provided that \nthe  claimant  arrived  ambulatory  with  a  steady  gait  and  was  cooperative  with  no  acute \ndistress.    His  pupils  were  of  equal  size  and he  responded  briskly.    He  denied  loss  of \nconsciousness.  In regard to the claimant’s emesis, the report provided there had been \nsome nausea but after emesis on arrival to the emergency room, the nausea resolved.  \nThe  claimant  had  denied  any  significant  headache,  and  no  numbness,  weakness, nor \nvision change was noted.  Under neurological, the report provided that the claimant was \noriented to person, place, and time.  The assessment mentioned the abrasions and the \nemesis, but stated there was now no nausea and the claimant was neurologically intact \n\nELLIS – H107908 \n \n19 \n \non exam.  It was also noted that the discharge information provided for multiple types of \nhead wounds and warned about obtaining help if vomiting occurs. (Cl. Ex. 1, P. 6 - 30)     \n    The claimant returned to the Conway ER at Baptist Health a few days later and \nthe report provided he had started to have a dull headache, had worked a shift Friday, \nand was having a hard time concentrating with confusion during his shift and was having \ndifficulty  navigating  around  the  city.    A  closed  head  injury  on  the  initial  encounter  was \nreferred  to.    The  CT  of  the  head  provided  for  no  evidence  of  an  acute  or  subacute \nintracranial hemorrhage. (Cl. Ex. 1, P. 31 – 47) \nOn  June  22,  2020,  the  claimant  presented  to  the  clinic  of  Dr.  Johnson.    Under \nimpression,  the  report  provided  for  closed  head  trauma  with  a  contusion  to  the \nfrontal/parietal skull, posttraumatic headache, nausea and vomiting related to the head \ntrauma, with a slightly altered mental status related to a head trauma, and currently stable.  \nThe claimant returned to work with restrictions. (Cl. Ex.  1, P 47 - 49)  A follow up note \ndated June 24, 2020, provided that the claimant still had some posttraumatic headache. \n(Cl. Ex. 1, P. 50, 51)  The claimant again returned to Dr. Johnson on June 29, 2020, and \nthe report provided that the claimant was not at maximum medical “benefits”, was not \ncomplaining  of  headaches,  and  had  slight  memory  issues.  (Cl.  Ex.  1,  P. 52,  53)    The \nclaimant  again  returned  to  Dr.  Johnson  on  July  7,  2020,  and  the  report  provided for \ncontinued improvement with no headaches and normal gait and speech. (Cl Ex. 1, P 54, \n55)  The claimant made another visit to the office of Dr. Johnson on July 27, 2020, stating \nhis  headaches  had  returned  and  he  had  noticed  a  change  in  his  memory.    The  report \nprovided that an MRI was indicated. (Cl Ex. 1, P. 56, 57)   \n\nELLIS – H107908 \n \n20 \n \nAn MRI was performed on July 30, 2020, which provided that there was a normal \nbrain.  The claimant then returned to Dr. Johnson on July 31, 2020.  The report provided \nthe claimant had not reached MMI and was still suffering symptoms most likely related to \npost concussive syndrome. (Cl. Ex. 1, P. 58 – 62) \nThe claimant was referred by Dr. Johnson to Dr. Barry Baskin on September 3, \n2020, for an evaluation of a closed head injury.  The report provided that the claimant had \na “fairly normal neuro exam.” (Cl. Ex. 1,  P.  63 –  65)    A  report  from  Dr.  Baskin  dated \nSeptember 11, 2020, provided the claimant could return to work with modifications and \nwas suffering from post concussion syndrome with little difficulty thinking, and moderate \ndifficulty with memory.  (Cl. Ex. 1, P. 66 - 72) \nThe claimant again returned to Dr. Baskin on October 1, 2020. (Cl. Ex. 1. P. 73 – \n76)  The evaluation by Dr. Baskin on October 6, 2020, provided the claimant had a mild \nclosed head injury on June 17, 2020.  Speech therapy had noted some loss of executive \nfunction  and  memory  deficits.    The  eye  examination  was  negative.    Right  sided \nclumsiness was noted.  Continued speech therapy with Michelle Cox was recommended.  \n(Cl. Ex. 1, P. 77 – 79) \nA  neuropsychological  exam  dated  November  13,  2020,  by  Renne  Magiera-\nPlanney, Ph. D., provided that the claimant would have difficulty returning to many of his \nprevious  duties  as  a  police  officer.    He  was  suffering  from  mild  impairments  in his \nexpressive  language  skills,  with  mild  impairments  in  his  comprehension.    He  was \ndiagnosed with Acquired Cognitive disorder. (Cl. Ex. 1, P. 80 – 83)  The claimant then \nreturned to Dr. Baskin on December 1, 2020.  Dr. Baskin stated “I have a hard time based \non this gentlemen’s ability to give accurate history knowing what his functional status was \n\nELLIS – H107908 \n \n21 \n \nprior to the injuries.”  (Cl. Ex. 1, P. 84 – 86)  The claimant again returned to Dr. Baskin on \nJanuary 5, 2021, and was seen by a speech-language pathologist on January 7, 2021.  \nThe EEG report of February 25, 2021, was normal. (Cl. Ex. 1, P. 87 – 90)  The claimant \ncontinued to be seen by a speech language pathologist. (Cl. Ex. 1, P. 91 – 96)   \nOn  April  12,  2021,  the  claimant  was  again  evaluated  by  Dr.  Baskin.    He  again \nopined that the claimant was suffering from a closed head injury on June 17, 2020, and \nstated  he  felt  he  was  suffering  from  cognitive  deficits.    He  also  mentioned  unreliable \nactions that reflected on the claimant’s neurocognitive and psychological functioning.   (Cl. \nEx. 1, P. 97 – 98)  The claimant’s last day of speech therapy appeared to be May 3, 2021. \n(Cl.  Ex. 1, P. 100, 101)  He continued to be seen by Dr. Baskin. \nA report by Tobi Taylor, LPC, provided they discussed the claimant’s lack of trust \nin his memory and his continued headaches, visual disturbances, aphasia, and confusion. \n(Cl.  Ex.  1,  P.  106 –  109)    The  claimant  continued  seeing  Dr.  Baskin  with  the  report  of \nJune 23, 2021, providing that his neuro psych in the past was always normal and that Dr. \nZolten had felt that the claimant had given some inconsistent effort and that he had PTSD.  \n(Cl. Ex. 1, P. 110 – 112) \nThe  claimant  returned  to  Dr.  Baskin  on  August  16,  2021,  for  an  evaluation.  A \nvacation  trip  by  the  claimant to  Hawaii  was mentioned.    The  possibility  of  sleep apnea \nwas  also  mentioned due  to  the  claimant’s  large  size.  (Cl.  Ex.  1,  P.  118,  119)    On \nSeptember 14, 2021, Dr. Baskin, using the AMA Guides to the Evaluation of Permanent \nImpairment 4\nth\n Edition, turning to the chapter on the nervous system on page 142 and in \nreviewing   the   mental   status   impairments   and   table   3   emotional   and   behavioral \nimpairments,  felt  that  the  claimant  presented  with  a  mild  limitation  of some  but  not  all \n\nELLIS – H107908 \n \n22 \n \nsocial and interpersonal daily functioning.  He further stated he could only rank him on \none  of  the  tables,  and  he  thought  that  emotional  or  behavioral  impairments  were  the \nbiggest issue and then opined that the claimant was at MMI with a 14% permanent partial \nimpairment   rating,   and   recommended   a   vocational   rehabilitation   evaluation   and \ncounseling. (Cl. Ex.1, P. 123 – 125)  \nThe claimant presented as a new patient to the Tilley Family Clinic on February \n14,  2022.    He  provided  he  had  difficulty  comprehending  what  he  read  and reported \ndepression, along with blurry vision. (Cl. Ex. 1, P. 126 – 135)  On January 25, 2023, the \nclaimant then presented to Bridgette Rene Boyer, PA.  The claimant was attempting to \nestablish  care  in the  state  of  Arizona.   The  report  provided the  claimant  stated he had \ndifficulty  concentrating  with  trouble  falling  a  sleep.    He  mentioned  that  he  was being \ntreated for a workers’ compensation injury but that he had not seen a neurologist.  The \nreport  referred  to  a  closed  traumatic  brain  injury  with  a  loss  of  consciousness  of  thirty \nminutes or less.  (Cl. Ex. 1, P. 136 – 146)  The claimant then presented to Dr. Harpreet \nKaur Sandu on May 31, 2023, for a neurology office visit.   The report referred to a history \nof  a generalized  anxiety  order.   In  addition,  the  report  referred  to  the  claimant  thinking \nthat his psychological issues were contributing to his cognitive issues and referred to a \nhead injury in 2020. (Cl. Ex. 1, P. 147 - 152) \nA  neuropsychological  evaluation  report  by  Danny  Rosenbaum,  PhD  dated,  July \n21,  provided  the  claimant  presented  as  alert,  oriented,  friendly,  forth coming,  and \nmotivated.  The report provided that the claimant’s immediate memory fell in the low \naverage range, his list learning was in the average range, and his story memory was low \naverage.  However, his delayed List and story memory increased to the above average \n\nELLIS – H107908 \n \n23 \n \nrange,  which  suggested  that  the  claimant  was  able  to  retain  as  well  as  increase \ninformation  after  a  delayed  period  of  time.    His  impaired  performance  on  the  attention \nsubtest most likely had some negative affect on other subtests.  The reading test provided \nthat the claimant was at the high school grade level which was appropriate.  His below \naverage visuospatial and language scores were most likely affected by selected slowed \nprocessing, attention, and fatigue. (Cl. Ex. 1, P. 153 – 159)  \nThirty-five  (35)  pages  of  non-medical  evidence  with  a  one  page  index  was \nintroduced by the claimant and admitted without objection and made part of the record. \n(Cl. Ex. 4)  This included the eligibility requirements for the Conway Police department \nand an autobiography of the claimant which provided that the claimant had grown up in \nthe home of his mother and there was not a lot of money to go around.  He had helped \nbuild  three  homes  while  in  high  school  and had  played  football.  (Cl.  Ex.  4,  1-3)      It \nappeared the claimant was a high school graduate with a weighted GPA of 2.49. (Cl. Ex. \n4,  PP.  5-6)  The  background  investigation  for  employment  at  the  Conway  Police \nDepartment by Lt. Glen Cooper provided that the claimant’s character references that \nhad  been  provided  by  the  claimant  plus  one  that  was  not  listed,  all  had  exemplary \ncomments  in  regard  to  the  claimant.    The  report  provided  that  the  claimant  was  big, \nstrong,  nice,  compassionate,  and  level  headed,  with  knee  problems  from  football  and \nbells palsy was also mentioned. (Cl. Ex. 4, PP. 7-31)  A letter from Chief Tapley, dated \nSeptember 29, 2021, provided that the claimant was being released from his employment \nduring his probationary period, consistent with the guidelines and procedures of the City’s \nEmployee Handbook. (Cl. Ex. 4, P. 35)  \n\nELLIS – H107908 \n \n24 \n \nThe  respondents  submitted  fourteen  (14)  pages  of  medical  records  without \nobjection.  A CT scan of the head of the claimant was taken on June 20, 2020, when the \nclaimant  presented  with  the  complaint  of  head  trauma  and  headache.    The report \nprovided  there  was  no  evidence  of  an  acute  or  subacute  intracranial  hemorrhage,  no \nfracture, and no significant abnormality.  The claimant received an MRI on July 30, 2020, \nwhich provided his brain was normal with the report signed by Dr. Gil Johnson. (Resp. \nEx. 1, P. 1-3)  \nAn  evaluation  by  Dr.  Barry  Baskin  dated  December  17,  2020,  provided  that the \nclaimant received a neuropsych evaluation by Dr. Mageira-Planey, who felt that additional \nneuropsych testing would be of value in this case.  In addition, the report provided there \nwere  no  objective  findings  with  regard  to  imaging  studies  or  neurologic  pathology.    It \nfurther provided that they were going to attempt to obtain a neuropsych assessment from \nDr. Zolten. (Resp. Ex. 1, P. 4) \nA progress note from an occupational therapist dated January 7, 2021, provided \nthe claimant demonstrated excellent reaction time with poor depth perception but during \nthe road assessment, his depth perception did not impair his driving and he demonstrated \nthe fitness to operate a vehicle. (Resp. Ex. 1, P. 5)   A report from the Little Rock Eye \nClinic and Dr. Jennifer Doyle dated February 10, 2021, provided the claimant’s optic nerve \nand macula were within normal limits but that he had some changes in his left eye.  The \nreport also referred to a traumatic brain injury/closed head injury but stated, “Fortunately \nI do not see any afferent damage.” The report went on to provide that from an ocular \nstandpoint, she did not see any permanent damage. (Resp. Ex. 1, PP. 6-7)  \n\nELLIS – H107908 \n \n25 \n \nDr. Baskin made an EEG referral on February 1, 2021. (Resp. Ex. 1, P. 8)  A report \nby  Dr.  Krishna  Mylavarapu,  dated  February  25,  2021,  provided  that  the  EEG  of  the \nclaimant was normal. (Resp. Ex. 1, P. 9)  Finally, a report from Dr. Zolten dated April 2, \n2021,  mentioned  that  the  claimant  was  referred  by  Dr.  Baskin  and  provided that  the \nclaimant had stated he continued to have problems dropping items and manipulating his \nhands.   The  claimant  was  administered  various tests  and under  impression, the  report \nstated  the  claimant  had  a  history  of  mild  traumatic  brain  injury  with  post  concussive \nsymptoms.  Current tests results were reported to not be overly reliable due to evidence \nof both inconsistent effort and over-reporting of psychological symptoms.  In general, the \nreport provided there were no overt deficits in the claimant’s neurocognitive profile, with \nthe exception of poor visual construction skills and the related incidental visual memory. \n(Resp. Ex. 1, PP. 10-14)   \nRespondents also submitted one hundred twenty-one (120) pages of non-medical \nrecords  which  included  one  hundred  fifteen  (115)  pages  of  the claimant’s field training \nobservation reports and evaluations where it appeared that the claimant had multiple “not \nacceptable” reviews in multiple areas in regard to daily observation reports, but that he \nwas  improving  his  score  as  time  went  on.  (Resp.  Ex.  2,  PP.  4-119)    An  exit  interview \nprovided the claimant had refused to sign it. (Resp. Ex. 2, P. 120) \nA letter addressed to Carol Worley by Dr. Barry Baskin dated February 5, 2022, \nprovided that the claimant’s case was a complicated one.  It stated the claimant “sustained \na closed head injury on the job as a rookie Conway Police Department officer on June \n17,  2020.”  “He  had  a  closed  head  injury  without  any  significant  hemorrhages,  skull \nfracture, or significant objective findings on the imaging studies.”  Dr. Baskin also stated \n\nELLIS – H107908 \n \n26 \n \nthat a normal neuro exam is not uncommon with a patient with a traumatic brain injury, \npost-concussion syndrome, or disorders of consciousness (DOI).   It was mentioned that \nDr.  Zolten felt the claimant’s results were not entirely reliable  but  felt  that  the  claimant \nmay  have  gone  back  to  work  too  soon  and  developed  PTSD  symptoms.    Dr.  Baskin \nprovided that “the onset of these symptoms, in my opinion, are related to his work injury.”  \n“You question my impairment rating from September 14, 2021.  You noted that  your \nreview of the CT and MRI along with the EEG that was done failed to show any objective \nfindings to support that.  Again, this is not uncommon.  A large number of patients who \nhave sustained a traumatic brain injury have normal objective findings.  Dr. Baskin opined \nthat the claimant had a 9% rating using table 3 on page 142 of the AMA Guides to the \nEvaluation of Permanent Impairment 4\nth\n Edition.  \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nThe  employee  has  the  burden  of  proving  a  compensable  injury.   Carman  V. \nHaworth  Inc.,  74 Ark. App.  55,  45  S.W.  3d 408  (2001)   A  compensable  injury must be \nestablished  by  medical  evidence  supported  by  objective  findings.    Arkansas  Code \nAnnotated  §11-9-102(4)(D).    Objective  findings  are  those  findings  which  cannot  come \nunder  the  voluntary  control  of  the  patient.  Ark.  Code  Ann.  §  11-9-102(16)(A)(I).    In \ndetermining  whether  the  claimant  has  sustained  his  burden  of  proof,  the  Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party. \nArk. Code Ann. §11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \n\nELLIS – H107908 \n \n27 \n \nThe claimant was injured while chasing a “suspect” and fell  while  performing  a \nvehicle pursuit drill.  The claimant suffered a compensable work-related abrasion to his \nhead above the eye, his left knuckle, and left knee.  The claimant testified he hit his head \non a concrete curb during the fall which resulted in a closed head injury, causing him to \nact  differently  after  the  accident.    He  stated  he  was  sleeping  more,  felt  sick,  and  was \nlethargic.  He threw up in the ER.  He had grown up in the city of Conway, knew the city \nwell,  and  now  was  getting  lost.    He  had  developed  cognitive  issues  and  also issues \nhandling  small  items  with  his  hands.    He  no  longer  was  an  accomplished  video  game \nplayer  and  had  times  when  he  was  anxious,  depressed,  or  angry,  unlike  prior to  the \naccident.   \nThe  claimant  was primarily  treated  by  Dr. Baskin,  who  first  saw the  claimant on \nSeptember 3, 2020, and stated the claimant had a negative work up with no measurable \nfindings and with no objective evidence that establish a closed head injury.  The early CT \nof the claimant’s head was normal as was the MRI of July 30, 2020.  There were reported \nnormal neurological exams by various physicians.  The claimant’s eyes were examined \nby a specialist and no abnormalities or hemorrhages were found.  An EEG was normal.  \nDr. Baskin stated that Dr. Magiaro-Planey didn’t find a lot of things wrong and Dr. Zolten \nassessed no neurocognitive deficits.  Dr. Baskin felt that the neuropsych reports led him \nto believe the accident could have caused an adjustment disorder, but he could not say \nwith a reasonable degree of medical certainty that the adjustment disorder was causally \nrelated to the work injury. \nNeuropsychological  testing  standing  alone  is  not  sufficient  evidence  of  a  brain \ninjury.  There must be objective evidence of such an injury.  Watson v. Tayco Inc., 79 Ark. \n\nELLIS – H107908 \n \n28 \n \nApp. 250, 86 S.W.3d 18 (2002).  Although Dr. Baskin agreed that the abrasion over the \neye could be an objective finding, he clearly stated there were no objective findings that \na closed head injury was related to the work incident.  The ER report provided for a chief \ncomplaint of a fall with an initial diagnosis of a closed head injury and with an abrasion of \nthe  left  eyebrow  noted.    Later,  the  same  report  mentioned  the  arrival  complaint  was  a \nhand injury and further stated that the claimant denied losing consciousness. The report \nprovided the claimant was oriented during the initial thirty (30) minute observation in the \nemergency room, with steady gait, no acute distress,  and his pupils were of equal size \nwith a brisk left and right pupil reaction, a favorable sign.  The report did mention vomiting \nbut stated that the nausea had resolved and the claimant was neurologically intact.        \nThe claimant seemed like a very likeable young man and the evidence provided \nhe  had  fought  through  some  obstacles  along  the  way.    It  appeared  Dr.  Baskin,  who \nappeared  to  direct  the  treatment  for  the  claimant,  had  a  genuine  concern  for  him  and \nconsequently made numerous referrals and the claimant was seen by numerous health \ncare  providers.    At  points,  the  medical  reports  were  somewhat  confusing  because  it \nappeared  different  types  of  health  care  providers  used  some  medical  and  legal  terms \nsomewhat differently.  One of the issues that the health care providers seemed to face \nwas that there was no baseline to compare the claimant’s actions before and after the \nwork related incident.  The emergency room report provided that the claimant’s nausea \nresolved itself after the claimant had vomited.  A report of an abrasion over the claimant’s \neye by itself is not a sufficient objective finding to provide for a closed head injury when \ninitial reviews of the claimant’s systems were negative, and even the claimant’s pupil eye \nexam in the emergency room showed an equal brisk response of both eyes instead of a \n\nELLIS – H107908 \n \n29 \n \nslow  response.   Follow-up objective  testing was  negative.   Speculation and  conjecture \ncannot substitute for credible evidence. Liaromatis v. Baxter County Regional Hospital, \n95 Ark. App. 296, 236 S.W.3d 524 (2006).  It is also important to note that the claimant’s \ntestimony is never considered uncontroverted.  Lambert v. Gerber Products Co.  14 Ark. \nApp. 88, 684 S.W.2d 842 (1985).  \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, there is no alternative but to find that the claimant has failed to establish a \ncompensable closed head injury with medical evidence supported by objective findings \nand that, consequently, the claimant is not entitled to additional medical treatment and \nattorney’s fees at this time.  If not already paid, the respondents are ordered to pay the \ncost of the transcript forthwith. \nIT IS SO ORDERED. \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":57304,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H107908 JESSIE D. ELLIS, EMPLOYEE CLAIMANT v. CITY OF CONWAY, EMPLOYER RESPONDENT ARKANSAS MUNICPAL LEAGUE, WORKERS’ COMPENSATION TRUST RESPONDENT OPINION FILED JANUARY 2, 2024 Hearing before Administrative Law Judge, James D. Kennedy, on the 26 TH day of S...","outcome":"denied","outcomeKeywords":["granted:1","denied:2"],"injuryKeywords":["knee","back","concussion","fracture"],"fetchedAt":"2026-05-19T22:57:56.309Z"},{"id":"alj-H104099-2023-12-28","awccNumber":"H104099","decisionDate":"2023-12-28","decisionYear":2023,"opinionType":"alj","claimantName":"Patricia Davis","employerName":"Standing Chapter 13 Trustee","title":"DAVIS VS. STANDING CHAPTER 13 TRUSTEE AWCC# H104099 DECEMBER 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DAVIS_PATRICIA_H104099_20231228.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAVIS_PATRICIA_H104099_20231228.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H104099 \n \nPATRICIA DAVIS, EMPLOYEE        CLAIMANT \n \nSTANDING CHAPTER 13 TRUSTEE, EMPLOYER         RESPONDENT \n \nALL AMERICA FINANCIAL ALLIANCE, CARRIER        RESPONDENT \n \nHANOVER INSURANCE GROUP, TPA          RESPONDENT \n \n \nOPINION FILED 28 DECEMBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe on 4 October 2023 in Little Rock, Pulaski County, Arkansas. \n \nMs. Sheila F. Campbell, Attorney-at-Law of North Little Rock, Arkansas, appeared for the \nclaimant. \n \nMr. James  A.  Arnold,  II, Attorney-at-Law  of  Fort  Smith,  Arkansas, appeared for  the \nrespondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 4 October 2023 in Little Rock, Arkansas, after the \nparties  participated  in  a  prehearing  telephone  conference  on 18  April  2023. A subsequent \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered on that same day. That Order stated the following ISSUES TO BE LITIGATED: \n1. Whether the claimant suffered a compensable injury by way of bilateral carpel tunnel \nsyndrome and cubital tunnel syndrome. \n \n2. Whether  the  claimant  is  entitled  to  temporary  total  disability  (TTD)  from  30  June \n2021 to 31 August 2021. \n \n3. Whether  the  claimant  is  entitled  to reasonable  and  necessary  medical  care  and \nexpenses associated with her claimed compensable injury. \n \n4. Whether the claimant is entitled to a controverted attorney’s fee. \n \n5.   All other issues are reserved. \n\nDAVIS- H104009  \n2 \n \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated into the Prehearing Order. The claimant contends: \n1. That she  sustained  a  compensable  injury  of  bilateral  carpal  tunnel  syndrome  and \ncubital  tunnel  syndrome  in  the  course  and  scope  of  her  employment,  with  those \ngradual onset injuries occurring by 8 March 2021. \n \n2. That she is entitled to TTD between 30 June 2021 and 31 August 2021. \n \n3. That she is entitled to medical benefits in the form of past surgeries, rehabilitation, \nexpenses, and associated mileage. \n \n4. That she is entitled to an attorney’s fee. \n \n5.  That she is entitled to permanent partial disability.\n1\n \n \nThe respondents contend: \n1. That the claimant did not sustain a compensable injury to either upper extremity.  \n \n2. They also contend that if the claimant is found to be entitled to TTD, then they are \nentitled to an offset against the related benefits owed for the payments she received \nunder an employee-sponsored short-term disability plan, but for the first week (which \nwas not covered by the plan) of her being off work for and after her surgeries.\n2\n  \n \nThat Order also set forth the following STIPULATIONS: \n1. The AWCC has jurisdiction over this claim. \n \n2. An employee/employer/carrier relationship existed on 8 March 2021, and the claimant \nwas entitled to the maximum compensation rates at that time. \n \n3.  The respondents have controverted this claim in its entirety. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law under \nACA § 11-9-704: \n \n1\n While  reviewing  the  Prehearing  Order  at  the  beginning  of  the  hearing,  the claimant \nindicated  that  she  wished  to  reserve  any  litigation  on  permanent  disability.  A  finding  on \npermanent disability is, accordingly, not addressed in this Opinion. TR at 7. \n2\n The claimant acknowledged that the respondents would be entitled to an offset in the event \nof a TTD entitlement finding. TR at 8-9. \n\nDAVIS- H104009  \n3 \n \n1. The AWCC has jurisdiction over this claim. \n \n2. The previously noted stipulations are accepted as fact. \n \n3. The  claimant  failed  to  prove  by  a  preponderance  of  evidence  that she  suffered  a \ncompensable injury. \n \n4. The claimant is, therefore, not entitled to the benefits sought in this case. \n \n5. Consistent with the above, the claimant’s attorney is not entitled to a fee. \nIII.  HEARING TESTIMONY \n The claimant testified on her own behalf and was the hearing’s only witness.  \nDirect Examination \nPatricia Davis is a fifty-three-year-old female who worked for the respondents for twenty-\nsix years. She worked as a case manager for the last five years or so of her employment with \nthe respondents. She said that her job duties included communicating with debtors, creditors, \nand  attorneys,  managing  check  processing  and  funds  distribution,  and  coordinating  with \ninsurance  companies.  TR  at  10-11.  She  performed  data  entry,  ran  monthly  reports,  and \nassisted other departments with questions around plan distributions. \n Ms. Davis testified that she began having problems with her hands in November of \n2020, before making any mention of a potential workers’ compensation claim. She became \nconcerned when she noticed a “knot” or “growth” on the back of her right\n3\n hand. TR at 12-13. \nAccording to Ms. Davis, she initiated her claim in March of 2021 after seeing a doctor about \nher hand, and “[i]t’s been happening since then.” TR at 14. \n The claimant said that she followed the respondents’ claim protocol and “immediately” \npresented to Concentra. She testified that she was then referred to an orthopaedic provider \nwhose  name  she  did  not  remember.  TR  at  15.  Ms.  Davis  testified  that  she  received  no \ntreatment from the provider and was returned to work without any restrictions. The claimant \n \n3\n The claimant is right-hand-dominant. See Cl. Ex. No 1 at 11. \n\nDAVIS- H104009  \n4 \n \ndid not produce any clinic notes from those provider visits, but only a Return to Work note \nfrom Dr. Mark Peterson dated 8 March 2021. See Cl. Ex. No 1. \n According to  the  claimant, she  continued  to work  as  usual  and without  restrictions \nuntil  she  took time  off for surgery with  a  physician  she  sought  on  her  own.  TR  at  16. She \ntestified that she underwent surgery on her right wrist with Dr. David Rhodes on 30 June \n2021. See Cl. Ex. No 1 at 2-3. Ms. Davis said that she was off work for two and a half or three \nand a half weeks before returning to work. TR at 17.  \n Ms.  Davis  said  that  she  spoke  with  her  employers  about  accommodations  before \nhaving surgery and that they purchased an ergonomic mouse for her right hand. TR at 18. \nAfter returning to work, she testified that she was having or had been having problems with \nher left hand also. Ms. Davis explained that her left hand problems were noted in her initial \nvisit with Dr. Rhodes, but she could not schedule both surgeries at the same time for lack of \na  caregiver  during post-operative  healing.  So,  she  went  back  to  Dr.  Rhodes  for  the  second \nsurgery on 16 August 2021. TR at 19; see also Cl. Ex. No 1 at 4-5. \n The  claimant  returned  to  work  after  the  second  surgery,  but  she  continued  to \nexperience problems. “So I kept going back and forth to my doctor to ask was it normal and \nhe re-evaluated some more and I, eventually, had to start doing steroid shots.” TR at 19. She \ntestified that the injections were administered in both wrists and that she continued to work \nduring that time. Ms. Davis said that she still experienced nighttime swelling that made it \ndifficult to rest. TR at 20.  \n Ms. Davis stated that she wore compression sleeves or guards at different times before \nand after her surgeries. She did not seek accommodations related to the sleeves, but received \nthe earlier-mentioned ergonomic mouse when she requested the same from her supervisor. \nTR at 23. The claimant testified that she was still experiencing trouble with her hands when \nshe separated from her employment on 11 August 2022. \n\nDAVIS- H104009  \n5 \n \n The claimant continued to experience nighttime swelling after surgery and sometimes \nhad to call in late because the pain medication she was prescribed made her sleepy. TR at 24. \nShe has not worked since leaving the respondent’s employment. Before leaving her job, she \nsaid  that  therapy  assisted  her  ability  to work,  but  that  treatment was  not  paid  for  by  her \nemployer. \n Ms.  Davis  stated  that  she  received  short-term  disability  benefits  through  her \nemployer-sponsored plan from 30 June 2021 to 31 August 2021. That plan’s benefits did not \nbegin until after the first week off work. TR at 25. According to her testimony, the claimant \ncontinues to experience pain and swelling: “If I have too much activity, it swells. So anytime \nyou’re doing anything with your hands, I’m still dealing with the same issues, gonna swell.” \nId. She thought she last saw Dr. Rhodes around the beginning of 2022, but her counsel noted \nthat the records reflect a last visit in July of 2022. TR at 26. Dr. Rhodes prescribed medication \nand offered additional steroid injections as needed. \nCross Examination \n Ms.  Davis  acknowledged  that  she  did  attend  work  for  some  time  between  the  two \nsurgeries. TR at 28. And she confirmed that her employer’s short-term  disability  benefits \ncovered all of her time off, but for the one week of her own leave time required by the policy.  \nThe claimant also acknowledged “significant other medical problems and conditions” beyond \nthe problems noted in the records she submitted as evidence. TR at 29. \n Other  problems  include  cervical  and  low-back  issues,  and  she  did  not  deny  past \ncomplaints of tingling and numbness in her arms. Past diagnostic efforts include more than \none nerve conduction study over the years. TR at 30. \n The claimant confirmed that after working for about twenty years as a Modification \nAnalyst, she did not want to be promoted to the Case Manager role. Ms. Davis took issue with \nher  deposition  testimony  that  indicated  her  previous  role  as  having  more  repetitive  job \n\nDAVIS- H104009  \n6 \n \nfunctions than her most recent. TR at 31. After discussing the notion that Ms. Davis did not \ncomplain  about  discomfort  until  after  receiving  the  promotion  she  did  not  want,  the \nquestioning continued: \nQ:  The job that you did, whether Modification Analyst or Case Manager, did \nit involve the use of both arms equally? \n \nA:  Pretty much you’re on a computer. Yes, I would say computer, calculator, \nback and forth. \n \nQ:  You’re right-handed? \n \nA:  I’m right-handed, yes. \n \nQ:  Okay. Yet, you’ve developed the elbow problem in your non-dominant arm? \n \nA:  I answer the phone with the left hand. \n \nQ:  Okay. And that’s the arm that you, at least according to the medical records, \nhad all the problems with, your left shoulder? \n \nA:  I don’t – like I said, I don’t know what you’re asking. \n \nQ:  Okay. Well, do you have an explanation for why you’ve got the cubital \ntunnel syndrome problem in your left arm and not your right arm, if our job \ninvolved the use of both arms? \n \nA:  I don’t have an explanation for it at all, ‘cause I wasn’t even aware of it. I \ndidn’t know what it was; so I can’t tell you what built up to that, other than my \nday-to-day activities of going to work doing the same job that I was doing. So I \ndon’t know what the difference – you’re saying was more on the right or the \nleft. I can’t answer that for you. \n \nQ:  Okay. \n \nA:  ‘Cause I did the same thing every day; so I’m sorry.  TR at 34-35. \n \n The claimant testified that she was prescribed pain medication for her hands by Dr. \nRhodes  and  that  she  continues  to  be  prescribed  the  same  medication.  TR  at  37.  Her  cross \nexamination  ended  without  any  re-direct,  and  the  claimant  rested  her  case  after  brief \nremarks from both attorneys. \nIV.  MEDICAL EVIDENCE \n\nDAVIS- H104009  \n7 \n \n Claimant’s medical exhibits consisted of an off-work note dated 8 March 2021, records \nfrom Dr. Rhodes for dates of service between 25 May 2021 and 31 August 2021, and some \nphysical therapy notes from between 26 October 2021 and 14 December 2021. See Cl. Ex. No \n1.  The  off-work  note  is  not  accompanied  by  any  clinic  notes,  physician  observations, \ndiagnostic efforts, or treatment plans. The first encounter note from Dr. Rhodes represents a \npreceding two years of numbness and tingling in her left upper extremity and noticing a mass \non  her  right  hand  for  six  months. Id.  at  11.  According  to  the  note,  surgery  for  the  right \nextremity was agreed to and planned that day. That surgery occurred on 30 June 2021. \n According to the notes, Dr. Rhodes performed surgery on her left wrist on 16 August \n2021. Id. at 4. Between those surgeries, she presented to Dr. Rhodes with a new complaint of \nright  thumb  pain  and  noticeable  continued  swelling  over  her  right  operative  site.  He \ndiagnosed primary osteoarthritis and administered a steroid injection. Id. at 7-8. \n  The respondents provided medical notes from between 6 February 2012 and 17 April \n2023. See Resp. Ex. No 1. Those notes represented many different office visits and three nerve \nconduction study reports. \n On 20 April 2021 she saw Dr. David Black for right wrist pain complaints, which the \nnote dates back to 22 December 2019. See Resp. Ex. No 1 at 49-54. Dr. Black assessed right \ncarpel tunnel syndrome and osteoarthritis of the wrist. He referred her for a CT scan of the \nwrist and a nerve conduction study and anticipated her following up after those studies were \ncomplete. He released her back to work without restrictions. Consistent with her testimony, \nhowever, the claimant did not return to Dr. Black’s care. \nV.  Post-hearing Briefing \n The parties timely submitted briefs after the hearing. The claimant notes in her brief \nthat she saw Dr. Peterson for a “work related injury” on 8 March 2021 and then had surgery \nat the end of June and the middle of August that same year. She states that her work included \n\nDAVIS- H104009  \n8 \n \ndata input and “making calculations” and concludes that her claim is compensable and that \nshe is entitled to TTD, medical expenses, and an attorney’s fee. \n The respondents argued in their brief, without conceding that she satisfied her burden \non objective findings, that the claimant failed to prove by a preponderance of the evidence \nthat her work duties were a major cause of her injury. They point to numerous other medical \nconditions  and  complaints  that  relate  to  or  could  relate  to  her  upper  extremity  problems, \nincluding  ongoing  complaints  about  her  upper  extremities  and multiple negative  nerve \nconduction studies. \nV.  ADJUDICATION \n The  stipulations  are  outlined  above  and  accepted  as  facts.  It  is  settled  that  the \nCommission, with the benefit of being in the presence of a witness and observing his or her \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements.  See Wal-Mart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  448,  990  S.W.2d  522 \n(1999). The Commission must sort through conflicting evidence and determine the true facts. \nIn so doing, the Commission is not required to believe the testimony of the claimant or any \nwitness,  but  may  accept  and  translate  into  findings  of  fact  only  those  portions  of  the \ntestimony that it deems worthy of belief. White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37 S.W.3d 649 (2001). It is further settled that a party’s testimony is never considered \nuncontroverted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). \nA. The Claimant Failed to Prove by a Preponderance of the Evidence That She \nSuffered a Compensable Injury. \n \n The claimant contends that she suffered gradual onset injuries to her right and left \nupper extremities. The claimant bears the burden of proving that she suffered a compensable \ninjury. ACA § 11-9-102(4). And she must prove by a preponderance of the evidence that the \n\nDAVIS- H104009  \n9 \n \ncompensable  injury  is  the  major  cause  of  a  disability  or  need  for  treatment.  ACA  §  11-9-\n102(4)(E)(ii). Major cause means more than fifty percent of the cause. ACA. § 11-9-102(14). \n A  gradual  onset  injury  generally  requires  that  the  claimant  meet  her  burden  in \nproving that: (1) the injury arose out of the course and scope of employment; (2) the injury \ncaused  harm  requiring medical  services;  (3)  the  injury  was caused  by  rapid  and repetitive \nmotion; (4) the injury was a major cause of the disability or need for treatment; and (5) the \ninjury  was  established  by  medical  evidence  supported  by  objective  findings. See Pulaski \nCounty Special School District v. Stewart, 2010 Ark. App. 487 (2010). Our Supreme Court, \nhowever, has recognized that carpel tunnel syndrome is a gradual onset injury and a claimant \nneed  not  prove  that  such  an  injury  was  caused  by  rapid  repetitive  motion. See  Kidlow  v. \nBaldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). She must still prove that (1) \nher carpel tunnel syndrome arose out of and in the course of her employment, (2) her injury \ncaused harm that required medical attention or resulted in disability, and (3) the injury was \nthe  major  cause  of  the  disability or  need  for  treatment. The  claimant  must  offer  medical \nevidence supported by objective findings establishing her injury. ACA § 11-9-102(4)(D). In J. \n& G. Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 (1980), the Court explained that \n“arising out of” employment refers to the origin or cause of an accident and “in the course” \nemployment refers to the time, place, and circumstances under which an injury occurred. \n Based on the evidence presented in this case, I cannot find that the claimant met her \nburden  on  proving  that  her  work  duties  were  a  major  cause  of  a  disability  or  need  for \ntreatment  for carpel tunnel syndrome  or  cubital  tunnel syndrome. I  am  not left to wrestle \nwith competing physicians’ reports as to whether this or that work activity was considered \nin  their  opinions,  within  any  degree  of  certainty  or  likelihood,  to  be  a  major  cause  of  her \ninjuries or complaints. She does not present the need for weighing the credibility of differing \nreports on that point. The claimant offered very little by way of medical evidence to support \n\nDAVIS- H104009  \n10 \n \na finding of major cause. In the absence of medical evidence on causation, the claimant fails \nalso  to  offer  compelling  circumstantial  evidence  as  to  the  major  cause  of  her  conditions. \nInstead, she essentially relies on (1) the general notion that her job included data entry and \nrunning  reports, (2) that  a  single  work  slip,  without  any  accompanying  records,  from  a \nphysician included the words “work injury,” and (3) that she eventually had surgery for carpal \ntunnel  and  carpal  cubital  problems  as  her  evidence for  a  finding  of  major  cause. That  is \nsimply not enough to meet her burden on major causation. \n As  noted  by  the respondents  at  the  hearing  an in  their  brief, the  claimant suffered \nfrom  a  number  of  symptoms,  conditions,  and  complaints  that  she  did  not meaningfully \ndiscount  as  attributing or  possibly  attributing to  the  cause  of  her  extremity  injuries. The \nrespondents further argue their point in noting that the claimant continues to make the same \nor similar complaints as she did prior to her surgeries. \n Because I find that the claimant failed to meet her burden on a compensable injury, \nher claims for reasonable and necessary treatment, associated costs, and TTD\n4\n must also fail. \n B.  Attorney’s Fee \n In accordance with the above, the claimant is not entitled to an attorney’s fee. \nVI.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE  \n \n4\n Because she fails to prove a compensable injury, I do not need to further address her claim \nfor TTD benefits. I note, however, that her admission at the hearing that she worked during \nthe time between her surgeries is not consistent with a claim of TTD.","textLength":20331,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H104099 PATRICIA DAVIS, EMPLOYEE CLAIMANT STANDING CHAPTER 13 TRUSTEE, EMPLOYER RESPONDENT ALL AMERICA FINANCIAL ALLIANCE, CARRIER RESPONDENT HANOVER INSURANCE GROUP, TPA RESPONDENT OPINION FILED 28 DECEMBER 2023 Heard before Arkansas Workers’ Compensati...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:3"],"injuryKeywords":["back","wrist","cervical","repetitive","shoulder"],"fetchedAt":"2026-05-19T23:00:04.439Z"},{"id":"alj-G307065-2023-12-22","awccNumber":"G307065","decisionDate":"2023-12-22","decisionYear":2023,"opinionType":"alj","claimantName":"Russell Payne","employerName":"Arkansas Department Of Transportation","title":"PAYNE VS. ARKANSAS DEPARTMENT OF TRANSPORTATION AWCC# G307065 DECEMBER 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PAYNE_RUSSELL_G307065_20231222.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PAYNE_RUSSELL_G307065_20231222.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G307065 \n \nRUSSELL A. PAYNE, Employee                                                                    CLAIMANT \n \nARKANSAS DEPARTMENT OF TRANSPORTATION, Employer          RESPONDENT                          \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier                                   RESPONDENT                          \n \n \n AMENDED OPINION FILED DECEMBER 22, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents   represented   by   CHARLES   H.   MCLEMORE,   Attorney,   Little   Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  December  4,  2023,  the  above  captioned  claim  came  on  for  hearing  at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on  October 4, 2023 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The prior Opinion of March 4, 2019 is final and res judicata. \n 3.   Respondent has accepted and paid or is paying permanent partial disability \nbenefits based upon impairment ratings of 14% and 12% assigned by Dr. Knox. \n 4.   Claimant reached maximum medical improvement on May 24, 2023. \n\nPayne – G307065 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Wage loss disability. \n2.    Attorney’s fee. \n3.    Respondent’s  entitlement to an offset for disability  retirement benefits  \npursuant to A.C.A. §11-9-411. \n The claimant contends that he is entitled to wage loss disability over and above \nhis impairment ratings.  The claimant contends that his attorney is entitled to an attorney’s \nfee in regard to any wage loss disability awarded in this case. \n The  respondent’s  contentions  are  attached  to  the  Commission’s  Pre-Hearing \nOrder included in the hearing transcript as Commission Exhibit #1.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non October 4, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has failed to prove by a preponderance of the evidence that he is \npermanently totally disabled as a result of his compensable injury.  Claimant has met his \nburden of proving by a preponderance of the evidence that he has suffered a loss in wage \nearning capacity in an amount equal to 50% to the body as a whole. \n\nPayne – G307065 \n \n3 \n \n 3.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n 4.   Pursuant to A.C.A. §11-9-411 respondent is entitled to an offset in an amount \nequal to $189.06 per week. \n \n FACTUAL BACKGROUND \n Claimant is a 55-year-old man who suffered a compensable injury to his cervical \nspine when the hood of a truck fell on his head and neck area on May 17, 2013.   After \nsome initial medical treatment, claimant underwent surgery on September 24, 2013 in the \nform of a fusion and discectomy by Dr. Queeney for herniated discs at C5-6 and C6-7.  \nOn October 24, 2013, Dr. Queeney released claimant to return to work with restrictions. \n Claimant  continued  to  have  complaints  involving  his  neck  and  sought  medical \ntreatment from his primary care physician, Dr. Wilson.  By order dated January 27, 2014, \nclaimant was granted a change of physician to Dr. Wilson. Claimant’s treatment at that \ntime  included  cervical  epidural  steroid  injections;  medications;  work  restrictions;  and \nphysical therapy.  When claimant’s condition did not improve, Dr. Wilson referred claimant \nfor a neurosurgical evaluation with Dr. Luke Knox.  After some conservative treatment by \nDr. Knox, claimant was seen by Dr. Knox’s partner, Dr. Armstrong.  On June 22, 2017, \nDr. Armstrong performed surgery at the C3-4 and C4-5 levels.   \n Following   that   surgical   procedure,   Dr.   Knox   opined   that   claimant   had   an \nimpairment rating in an amount equal to 14% to the body as a whole.  10% of that rating \nwas attributable to the first surgery by Dr. Queeney and 4% to the second surgery by Dr. \nArmstrong. \n\nPayne – G307065 \n \n4 \n \n This claim was the subject of a prior hearing on January 28, 2019.  Following that \nhearing,  an  opinion  was  filed  on  March  4,  2019,  finding  that  respondent  had  not \ncontroverted payment of either the 10% or 4% impairment ratings, and that respondent \nwas not liable for payment of a penalty on the 10% impairment rating.  It also found that \nclaimant’s attorney had provided bona fide legal services and was entitled to a fee equal \nto claimant’s portion of the attorney fee in the amount of 12.5%. This opinion was not \nappealed and the parties have stipulated that it is final. \n Since the last hearing on January 28, 2019, claimant has continued to treat with \nDr. Knox and Dr. Armstrong.  In 2022, Dr. Armstrong performed a third surgical procedure \nwhich  consisted  of  a  fusion  from  C5-C7.    Dr.  Knox  has  opined  that  claimant  reached \nmaximum  medical  improvement  as  of  May  24,  2023,  and  he  assigned  claimant an \nadditional  impairment  rating  equal  to  12%  to  the  body  as  a  whole.   The  parties  have \nstipulated  that  respondent  has  accepted  and  paid,  or  is  paying,  permanent partial \ndisability benefits based upon the 14% and 12% ratings assigned by Dr. Knox. \n After his  first  two  surgeries,  claimant  returned  to  work  for  respondent as  a  crew \nleader.  He testified that he essentially continued performing his regular job duties which \nincluded heavy manual labor. Claimant did not return to work for respondent or for any \nother employer after the third surgery.  Claimant did not believe he could continue working \nfor  respondent  and  respondent  indicated  that  it  could  not  accommodate  claimant’s \npermanent work restrictions.  Claimant has filed for and is receiving disability retirement \nbenefits from respondent.   \n Claimant has filed this claim contending that he is entitled to benefits for wage loss \ndisability as a result of his compensable injury. Respondent contends that it is entitled to \n\nPayne – G307065 \n \n5 \n \nan offset for any disability retirement benefits pursuant to A.C.A. §11-9-411.  \n \nADJUDICATION \n Claimant  contends that  he  is  entitled  to  wage  loss  disability  over  and  above his \nimpairment ratings.  Claimant did not specifically contend that he is permanently totally \ndisabled; however, claimant testified that if there was some kind of work he could do he \nwould be doing it and that he does not believe he could hold down a 40 hour per week \njob given his medication and physical limitations.  Permanent total disability is defined in \nA.C.A. §11-9-519(e)(1) as the “inability because of compensable injury or occupational \ndisease, to earn any meaningful wages in the same or other employment.”  Furthermore, \nclaimant has the burden of proving by a preponderance of the evidence that he suffers \nfrom an inability to earn any meaningful wage in the same or other employment.  A.C.A. \n§11-9-519(e)(2). \n I find that claimant has failed to meet his burden of proving by a preponderance of \nthe evidence that he is permanently totally disabled as a result of his compensable injury.  \nInstead, I find based upon the appropriate wage loss factors that claimant has suffered a \nloss  in  wage  earning  capacity  in  an  amount  equal  to  50%  to  the  body  as  a whole.    In \nconsidering  claims  for  permanent  disability  benefits  in  excess  of  the  impairment,  the \nCommission may take into account various factors.  These factors include the percentage \nof  permanent  physical  impairment  as  well  as  the  claimant’s  age,  education,  work \nexperience,  and  all  other  matters  reasonably  expected  to  affect  his  future earning \ncapacity.  A.C.A. §11-9-522(b)(1). \n The  claimant  is  a  55-year-old  high  school  graduate.    He  has  worked  for  the \n\nPayne – G307065 \n \n6 \n \nrespondent for approximately 25 years.  Claimant previously worked a variety of manual \nlabor jobs.  These included work at Nichols Welding Supply; working at a sand plant that \nwas a subsidiary of Chrisman Ready-Mix; working in the melt furnace, melting aluminum \nfor custom wheels at Superior Wheels; and working at Chrisman Ready-Mix operating a \nrock crusher, pit loader, and haul trucks. \n As  previously  noted,  claimant  has  worked  for  the  respondent  for  25  years.  \nClaimant began his employment with respondent as a laborer and worked up to a job as \na crew leader.  As a crew leader, claimant spent some two to three hours in his office per \nday  before  going  out  to  a  job  site.    Claimant  was  responsible  for  tracking  time  of \nemployees, inputting mileage for all equipment, and checking service records.  He also \ntestified  that  he  had  paper  files  to  maintain  such  as  maintenance  records.  Claimant \ntestified that he used a particular computer program to keep track of time and mileage.  \nAfter  performing  his  office  duties,  claimant  would  go  to  the  job  site  where  he  was \nresponsible for supervising a crew.  However, claimant’s job also required him to perform \nmuch of the manual labor performed by the laborers.  This included operating skid steers, \ndozers, track hoes, pavers, rollers, and dump trucks.  Claimant was also required to train \nnew employees, set up jobs, and order asphalt and other materials. \n As previously noted, respondent indicated it could not accommodate claimant’s \npermanent work restrictions and return him to his prior job as a crew leader.   \n At Dr. Knox’s request, claimant underwent a functional capacities evaluation  on \nApril 12, 2023.  The evaluation determined that claimant gave a consistent and reliable \neffort  with  51  of  53  consistency  measures  within  expected  limits.    The  evaluation \ndetermined that claimant had the ability to lift/carry up to 20 pounds on a frequent basis \n\nPayne – G307065 \n \n7 \n \nwith an occasional right upper extremity lift of 30 pounds and a left upper extremity lift of \n20 pounds.  The evaluation determined that claimant demonstrated the ability to perform \nwork in the medium classification of work over the course of a normal eight hour day. \n Following  the  evaluation,  claimant  returned  to  Dr.  Knox  on  May  24,  2023  who \nnoted in his report that he had reviewed claimant’s functional capacity evaluation which \nhad been done appropriately; had consistent findings; and released claimant to return to \nmedium class work.  He further noted that he did not believe claimant should pursue a \njob that would require jarring and vibration nor in the operation of heavy equipment.  Other \nthan  those  limitations,  Dr.  Knox  indicated  the  functional  capacity  evaluation  should  be \nreferred to for complete details on claimant’s limitations.   \n On  September  11,  2023,  claimant  met  with  Keondra  Hampton  for  a  vocational \nrehabilitation  evaluation.    At  that  evaluation  Hampton  obtained  information  regarding \nclaimant’s physical limitations, his work history, his education, and various other factors.  \nHampton indicated that claimant was capable of working within the medium classification \nof work and her report lists various job openings that would be compatible with claimant’s \nskills, physical capabilities, work history and education.  These jobs ranged in wages of \n$16.08 per hour up to $23.75 per hour.   In a subsequent letter from Hampton to claimant \ndated October 9, 2023, Hampton identified various other jobs which ranged in wages of \n$14.70 per hour to $21.84 per hour.   \n Apparently,  there  was  some  miscommunication  and  circumstances  involving \nsickness  and  vacations  which  led  to  claimant  not  specifically  applying  for  any  of  these \njobs.  However, the relevancy of these jobs identified by Hampton is the fact that they are \njobs available within claimant’s physical limitations and skill levels. \n\nPayne – G307065 \n \n8 \n \n It is claimant’s testimony that he does not feel that he is capable of performing a \n40 hour per week job because he is only capable of working two or three days in a row \nbefore he might be unable to work due to pain.  Claimant also indicated that he is currently \ntaking opiate medication in the form of hydrocodone as a result of his work-related injury.  \nNotably, neither the functional capacity evaluation nor Dr. Knox indicated that claimant \nwas limited to working only two to three days per week and Dr. Knox did not indicate that \nclaimant  was  incapable  of  working  while  taking his  hydrocodone.   In  fact, according  to \nclaimant’s testimony, he had been taking hydrocodone and muscle relaxers since 2013 \nand was continuing to work for the respondent. \n \nA The hydrocodone and the muscle relaxers. \n \nQ Have you been taking those consistently since - - \n \nA Since 2013, yes. \n \nQ Okay.  How often did you take those?  Did you  \ntake them four times a day? \n \nA Most of the time. \n \nQ Since 2013? \n \nA On and off.  Like I said, back then it was, you \nknow, you have good days and you have bad days. \nMy second surgery, I took a lot more after the second \nsurgery than I did the first. \n \n Thus, claimant’s use of hydrocodone did not prevent  him from working subsequent \nto 2013 as a crew leader for the respondent. \n Finally, I note that claimant testified that he has not applied for, nor looked for any \njob.  A claimant’s lack of interest in employment is an impediment to the Commission’s \n\nPayne – G307065 \n \n9 \n \nfull assessment of a claimant’s loss and is a factor to be considered in determining wage \nloss.  City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W. 2d 946 (1984); Oller v. \nChampion Parts Rebuilders, 5 Ark. App. 307, 635 S.W. 2d 276 (1982). \n After my review of the relevant wage loss factors presented in this case, I find that \nclaimant has failed to prove by a preponderance of the evidence that he is permanently \ntotally disabled.  Instead, I find that claimant has suffered a loss in wage earning capacity \nin  an  amount  equal  to  50%  to  the  body  as  a  whole.    Claimant  underwent  a  functional \ncapacities  evaluation  which  determined  that  he  was  capable  of  performing  work  in  the \nmedium  classification  of  work.    Dr.  Knox  in  his  report  of  May  24,  2023  noted  that the \nevaluation released claimant to return to work in the medium classification of work and in \naddition  to  the  restrictions  set  forth  in  the  evaluation  stated  that  claimant  should  not \nperform a job which required jarring and vibration or the use of heavy equipment.  The \nclaimant is a 55-year-old high school graduate and a vocational rehabilitation evaluation \nidentified  various  jobs  which  fall  within  claimant’s  limitations  and  skills  according  to \nHampton.    Accordingly,  I  find  that  claimant  is  entitled  to  permanent  partial disability \nbenefits based upon a loss in wage earning capacity in an amount equal to 50% to the \nbody as a whole. \n Respondent  has  controverted  claimant’s  entitlement  to  all  unpaid  indemnity \nbenefits. \n The final issue for consideration involves respondent’s contention that it is entitled \nto an offset for disability retirement benefits pursuant to A.C.A. §11-9-411.  That statute \nstates that any benefits paid to an injured worker shall be reduced in an amount equal to, \ndollar  for  dollar,  the  amount  of  benefits  the  injured  worker  has  received  for  the  same \n\nPayne – G307065 \n \n10 \n \nperiod of disability.  The reduction only applies to that portion paid for by the employer.  \nHere, claimant filed for and received disability retirement benefits from the respondent.  \nRespondent submitted into evidence on Page 19 of Respondent’s Exhibit #2 a worksheet \nsetting out its calculations regarding the amount of this offset.  Based upon the employer’s \ncontribution to claimant’s retirement disability, respondent is entitled to a disability offset \ncredit in the amount of $189.06 per week.  Although there was some initial issue regarding \nthe calculation of this amount, the parties at the hearing agreed that the offset amount of \n$189.06 is accurate. \n Accordingly,  I  find  that  respondent  is  entitled  to  an  offset  for  permanent  partial \ndisability benefits owed in the amount of $189.06 per week. \n \nAWARD \n Claimant has failed to prove by a preponderance of the evidence that he is \npermanently  totally  disabled as  a  result  of  his  compensable  injury.   However,  claimant \nhas proven by a preponderance of the evidence that he is entitled to permanent partial \ndisability benefits in an amount equal to 50% to the body as a whole based upon a loss \nin wage earning capacity.  Respondent has controverted claimant’s entitlement to unpaid \nindemnity benefits.   Pursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled \nto  an  attorney  fee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits \npayable to the claimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based \nupon the indemnity benefits awarded.   This fee is to be paid one-half by the carrier and \none-half by the claimant.    \n \n\nPayne – G307065 \n \n11 \n \n In addition, respondent is entitled to an offset in the amount of $189.06 per week \nfor retirement disability benefits claimant is receiving from respondent pursuant to A.C.A. \n§11-9-411. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $797.45. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n     __________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":18502,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G307065 RUSSELL A. PAYNE, Employee CLAIMANT ARKANSAS DEPARTMENT OF TRANSPORTATION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT AMENDED OPINION FILED DECEMBER 22, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in ...","outcome":"granted","outcomeKeywords":["granted:5","denied:1"],"injuryKeywords":["cervical","neck","herniated","back"],"fetchedAt":"2026-05-19T22:59:59.660Z"},{"id":"alj-H009640-2023-12-22","awccNumber":"H009640","decisionDate":"2023-12-22","decisionYear":2023,"opinionType":"alj","claimantName":"James Washington","employerName":"Evergreen Packaging","title":"WASHINGTON VS. EVERGREEN PACKAGING AWCC# H009640 DECEMBER 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WASHINGTON_JAMES_H009640_20231222.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WASHINGTON_JAMES_H009640_20231222.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H009640 \n \nJAMES WASHINGTON, EMPLOYEE       CLAIMANT \n \nEVERGREEN PACKAGING, EMPLOYER          RESPONDENT \n \nACE AMERICAN INSURANCE Co., CARRIER         RESPONDENT \n \nESIS, Inc., TPA              RESPONDENT \n \n \n \nOPINION FILED 22 DECEMBER 2023 \n \n \nOn  hearing  before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, 20 December 2023, in Little Rock, Pulaski County, Arkansas. \n \nThe  claimant,  represented  by  Mr.  Steven  R.  McNeely, Attorney-at-Law  of  Jacksonville, \nArkansas, did not appear. \n \nMr.  William  C.  Frye,  Attorney-at-Law  of  North  Little  Rock,  Arkansas, appeared for  the \nrespondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 20 December 2023 in Little Rock, Arkansas, after \nthe respondents  filed  a  Motion  to  Dismiss  for  the  claimant’s  failure  to  prosecute  any \njusticiable issues. A full hearing was conducted in this matter on 12 January 2023 in Pine \nBluff,  Arkansas.  An  Opinion  and  Order  dated  4  April  2023  was  entered, finding  that  the \nclaimant failed to meet his burden on his claims and, accordingly, dismissing those claims. \nThat Order was not appealed. \nOn  16  October  2023,  the  respondents  moved  for  a  dismissal  without  prejudice  of  any \nremaining claims based on the claimant’s failure to take any action on the matter since the \n12 January 2023 hearing. The Commission sent Notice of that motion and subsequent notice \nof  the  hearing  set  on  that  motion  to  the  address  maintained  for  the  claimant  in  the \n\nWASHINGTON- H009640  \n2 \n \nCommission’s files, and no response or return on those mailings was received. The claimant \ndid not appear to offer evidence or argument opposing the respondents’ motion. \nArkansas Code Annotated § 11-9-702(a)(4) states that a matter may be dismissed without \nprejudice  after  six (6) months  without  a bona  fide request  for  a  hearing.  Our  Rule 099.13 \nprovides for a dismissal for failure to prosecute an action upon application by either party. \nBased on the record, the available evidence, and the arguments of the respondents’ counsel, \nI find that the respondents’ Motion to Dismiss should be granted and that the matter should \nbe dismissed without prejudice. \nII.  ORDER \n Consistent with the above, this matter should be and hereby is DISMISSED \nWITHOUT PREJUDICE. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2547,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H009640 JAMES WASHINGTON, EMPLOYEE CLAIMANT EVERGREEN PACKAGING, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE Co., CARRIER RESPONDENT ESIS, Inc., TPA RESPONDENT OPINION FILED 22 DECEMBER 2023 On hearing before Arkansas Workers’ Compensation Commission (AWC...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:02.360Z"},{"id":"alj-H302492-2023-12-19","awccNumber":"H302492","decisionDate":"2023-12-19","decisionYear":2023,"opinionType":"alj","claimantName":"Joan Curtis","employerName":"Crossing At Riverside Health","title":"CURTIS VS. CROSSING AT RIVERSIDE HEALTH AWCC# H302492 DECEMBER 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/CURTIS_JOAN_H302492_20231219.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CURTIS_JOAN_H302492_20231219.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H302492 \n \nJOAN M. CURTIS, EMPLOYEE           CLAIMANT \n \nCROSSING AT RIVERSIDE HEALTH, EMPLOYER            RESPONDENT \n \nASIT / CMSI, CARRIER/TPA             RESPONDENT  \n \nOPINION FILED DECEMBER 19, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on December 19, 2023. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Mr. Jarrod S. Parrish, Attorney-at-\nLaw of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A  hearing  was  held  in  the  above-styled  matter  on  December 19,  2023,  in  Little \nRock, Arkansas on respondents’ Motion to Dismiss for failure to prosecute pursuant to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant was pro se and failed to appear for the hearing.  The \nclaimant had filed a Form AR-C on April 4, 2023.  The First Report of Injury was filed on \nApril  26,  2023,  and  it  provided  that  the  injury  did  not  occur  on  the  premises  of  the \nemployer.  The From AR-2 was also filed on April 26, 2023, denying the claim.  A Motion \nto  Dismiss  was  filed  on  October  31,  2023,  requesting  that  the matter  be  dismissed for \nfailure to prosecute pursuant to Commission Rule 099.13 and Ark. Code Ann. § 11-9-702.  \nThe  claimant  has  not  requested  a  hearing  to  date  and  more  than  six  (6)  months  have \npassed since the filing of the original claim.   \n\nCURTIS – H302492 \n \n2 \n \n Appropriate notice was provided to the claimant notifying her that a hearing on the \nMotion to Dismiss was set for December 19, 2023, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nJarrod S. Parrish appeared on behalf of the  respondents and asked that the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent,  I  find  that  this  matter  should  be  dismissed  without  prejudice,  for failure  to \nprosecute  pursuant  to  Ark.  Code  Ann.  §  11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2666,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302492 JOAN M. CURTIS, EMPLOYEE CLAIMANT CROSSING AT RIVERSIDE HEALTH, EMPLOYER RESPONDENT ASIT / CMSI, CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 19, 2023 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski County, Arkansas...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:59:49.185Z"},{"id":"alj-H302799-2023-12-19","awccNumber":"H302799","decisionDate":"2023-12-19","decisionYear":2023,"opinionType":"alj","claimantName":"Gisela Gutierrez","employerName":"Tyson Poultry, Inc","title":"GUTIERREZ VS. TYSON POULTRY, INC. AWCC# H302799 DECEMBER 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GUTIERREZ_GISELA_H302799_20231219.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GUTIERREZ_GISELA_H302799_20231219.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H302799 \n \nGISELA GUTIERREZ, Employee                                                                    CLAIMANT \n \nTYSON POULTRY, INC., Employer                                                         RESPONDENT                        \n \nTYNET CORPORATION, Carrier/TPA                                                     RESPONDENT                          \n \n \n OPINION FILED DECEMBER 19, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JEREMY SWEARINGEN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  November  29,  2023,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on June 21, 2023 and \na  pre-hearing  order  was  filed  on  that  same date.   A  copy  of  the  pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The employee/self-insured employer relationship existed between the parties \non June 15, 2022. \n 3.   Respondent has controverted this claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n\n1.    Compensability of gradual onset injury to claimant’s right wrist and elbow on  \nor about June 15, 2022. \n2.     Medical expenses. \n3.     Temporary total disability benefits. \n4.      Attorney’s fee. \n5.       Notice. \nThe claimant contends she is entitled to payment of medical treatment for her right \nwrist and elbow, and to payment of temporary total disability benefits for two weeks during \nJanuary of 2023.  Claimant reserves all other issues.  \nThe  respondents  contend  that  claimant  has  offered  no  proof  at  all  that  she \nsustained  a  compensable  right  wrist  or  elbow  injury.    She  has  provided  no  objective \nmedical findings of injury or any records whatsoever.  Respondent contends that its first \nnotice  that the claimant was alleging a compensable right wrist and elbow injuries was \nthe AR-C filed by the claimant’s attorney which was received by the respondent on May \n3, 2023.  Thus, even if the claimant were somehow found to be compensable, respondent \nwould not be liable for any benefits incurred or accrued before the date such notice was \nreceived.  The claimant has not specified what temporary total disability benefits she is \nseeking.  The claimant has not specified what medical she is seeking. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nGutierrez – H302799 \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.        The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \nconducted on June 21, 2023 and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n 2.        Claimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable gradual onset injury to her right wrist and elbow on or about \nJune 15, 2022. \n \n FACTUAL BACKGROUND \n Claimant  is  a  45-year-old  woman  who  began  working  in  August  2003  for \nrespondent in deboning in its Rogers’ plant.  At some point in time that plant closed and \nclaimant was transferred to respondent’s plant on Berry Street in Springdale.  Her job \nthere required her to pull the skin off 50 chicken breasts per minute. \n Claimant testified that in mid-June 2022 she began having problems with pain in \nher right wrist.  She stated that she reported the problems to the nurse’s station, but an \ninterpreter was not present so she had to communicate with hand signals and was not \nprovided treatment. \n As she continued to work the pain radiated from her right wrist up to her elbow and \nshe reported these problems to her supervisor, Maria, who took her to the nurse’s station \nand interpreted for her.  Claimant was given cream to apply to her wrist and arm.  When \nclaimant’s complaints continued, she sought medical treatment from her primary care \nphysician, Dr. John Smiley, who referred her to Dr. Andreas Chen, orthopedic surgeon. \n At his initial visit with claimant on October 6, 2022, Dr. Chen prescribed the use of \n\nGutierrez – H302799 \n \n4 \n \nbraces.    Dr.  Chen  noted  that  claimant  suffered  from diabetes  which  was  out of  control \nand he could not consider an injection or surgery at that time.  On November 15, 2022, \nDr. Chen recommended that claimant continue to wear her braces and he also ordered a \nnerve  conduction  study.    That  nerve  conduction  study  was  performed  by  Dr.  Miles \nJohnson on November 30, 2022, and revealed bilateral carpal tunnel syndrome, severe \non the right and moderate on the left. \n After claimant’s diabetes came under control, Dr. Chen performed a carpal tunnel \nrelease on claimant’s right wrist in January 2023.  Claimant was off work for two weeks \nafter her surgery before returning to work for respondent.  Claimant testified that she still \nsuffers from pain in her right wrist and elbow. \n Claimant has filed this claim contending that she suffered a gradual onset injury to \nher  right  wrist  and  elbow  on  or  about  June  15,  2022.    She  seeks  payment  of  medical \nexpenses, temporary total disability benefits, and a controverted attorney fee. \n \nADJUDICATION \n Claimant contends that she suffered a compensable injury in the form of a gradual \nonset injury to her right wrist and elbow in mid-June 2022.   Claimant has been diagnosed \nas  suffering  from  right  carpal  tunnel  syndrome  and underwent  surgery  in  the form  of a \ncarpal tunnel release by Dr. Chen in January 2022.  In Kildow v. Baldwin Piano & Organ, \n333  Ark.  335,  969  S.W.  2d  190  (1998),  the  Arkansas  Supreme  Court  recognized  that \ncarpal  tunnel  syndrome  constitutes  a  gradual  onset  injury.    Therefore,  claimant  is  not \nrequired to prove that her injury was caused by rapid repetitive motion.  However, claimant \nmust still prove (1) that her carpal tunnel syndrome arose out of and in the course of her \n\nGutierrez – H302799 \n \n5 \n \nemployment;  (2)  her  injury  caused  internal  or  physical  harm  to  the  body  that required \nmedical services or resulted in disability;  and (3) the injury  was the major cause of the \ndisability  or  need  for  treatment.    A.C.A.  §11-9-102(4)(A)(ii)(E)(ii).    In  addition,  claimant \nmust  offer  medical  evidence  supported  by  objective  findings  establishing  her  injury.  \nA.C.A. §11-9-102(4)(D). \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to prove by a preponderance of \nthe evidence that her carpal tunnel syndrome is a compensable injury.  As noted above, \nthe third requirement for a compensable injury is that the compensable injury be the major \ncause  of  the  disability  or  need  for  treatment.    A.C.A.  §11-9-102(4)(E)(ii); Medlin  v. \nWalmart Stores, Inc., 64 Ark. App. 17, 977 S.W. 2d 239 (1998).  “Major cause” means \ngreater than fifty percent (50%) of the cause.  §11-9-102(4)(E)ii. \n Here,  the  claimant  has  a  twelve  year  history  of  having  been  diagnosed  with \ndiabetes.  At the time of her initial visit with Dr. Chen on October 6, 2022 her A1C was \ngreater than 12.  In his deposition testimony, Dr. Chen stated the following with respect \nto that reading. \n  Q In the October 6\nth\n chart dictation, there’s mention \n  of uncontrolled diet.  She’s an uncontrolled diabetic with \n  an A1C greater than 12.  And why is that, in your opinion, \n  relevant to a discussion of carpal tunnel or upper extremity \n  complaints like this? \n \n  A So there are a couple of reasons.  One is that  \n  diabetes can increase your symptoms or carpal tunnel \n  syndrome.  Number two is that I would not intervene on \n  any - - I would not intervene on her care, if her diabetes \n  was uncontrolled, so - - because the risk of infection goes \n  up significantly, if her - -  your sugars are uncontrolled. \n           I would - - that is my way of saying, hey, I would \n\nGutierrez – H302799 \n \n6 \n \n  not operate on her.  It also says, hey, I would not give \n  her a steroid injection either. \n \n \n During the course of his deposition Dr. Chen stated that people who are diabetic \nare more likely to develop carpal tunnel syndrome.  He further noted that diabetes can be \nan aggravating factor to the inflammation of the medial nerve in the carpal tunnel.  Most \nsignificantly,  Dr.  Chen  was  unwilling  to  state  within  a  reasonable  degree  of  medical \ncertainty  whether  claimant’s  carpal  tunnel  syndrome  was  the  result  of  job  activities  as \nopposed to diabetes. \n  Q So as we sit here today, with Ms. Gutierrez \n  specifically, is there any way - - and let me preface \n  this by saying, would it be correct to say that Ms. \n  Gutierrez gave you a history of noticing problems \n  with her hands when she used them a lot at work? \n \n  A Ask that question again. \n \n  Q Sure. And I’m going back to the very, very - - \n   \n  A Yes. \n \n  Q - - intake form.  She said - - “What makes your \n  pain worse?”  “Work.” \n \n  A Correct. \n \n  Q And she has a hand-intensive job.  Would it be \n  fair to say that she has, at least, indicated that her \n  symptoms she feels are worse when she’s using her \n  hands at work? \n \n  A Correct. \n \n  Q Would it also be correct to say that there’s a \n  temporal proximity between her blood sugars being  \n  out of control and her presentation for treatment of \n  those symptoms, both in terms of coming - - showing \n  up, and also reporting severity? \n\nGutierrez – H302799 \n \n7 \n \n \n  A Yes. \n \n  Q Is there any way to state within a reasonable \n  degree of medical certainty which of these causes or \n  potential causes is the cause of her carpal tunnel \n  syndrome, as opposed to the symptoms just mani- \n  festing at a given time? \n \nA It is not possible to say. \n \nQ Would it be fair to say that it’s not surprising \nthat she has symptoms of pain and these carpal tunnel \n  symptoms when she’s using her hands a lot? \n \n  A It is fair to say that.  Correct.   \n \n  Q Because - - and then, if she has carpal - -  \n  underlying carpal tunnel syndrome from whatever \n  reason, it would be - - would it be expected for her \n  to have those symptoms manifest when she’s using \n  her hands a lot? \n \n  A Yes. \n \n  Q Would it also be expected that - - if her blood \n  sugar becomes more out of control, getting into those \n  upper levels, like 250, 300, would it also be expected \n  for her to experience symptoms from her carpal tunnel \n  syndrome at those times where her blood sugar is way \n  out of control? \n \n  A Yes. \n \n  Q Would it be fair to say that correlation doesn’t \n  necessarily mean causation? \n \n  A Correct. \n \n  (Emphasis added.) \n \n \n Therefore,  Dr.  Chen  was  unable to  state  within  a  reasonable degree  of  medical \ncertainty whether claimant’s carpal tunnel syndrome was the result of her job activities or \n\nGutierrez – H302799 \n \n8 \n \nher uncontrolled diabetes.  I find that Dr. Chen’s opinion is credible and entitled to great \nweight.    Based  upon  his  testimony,  I  find  that  claimant  has  failed  to  prove  by  a \npreponderance of the evidence that her job activities for the respondent were the “major \ncause” of her disability or need for treatment.  Given Dr. Chen’s testimony, claimant has \nfailed to prove by a preponderance of the evidence that her job duties were greater than \n50% of the cause of her disability or need for medical treatment.  Accordingly, I find that \nclaimant has failed to meet her burden of proving by a preponderance of the evidence \nthat she suffered a compensable in the form of carpal tunnel syndrome. \n I also note that claimant testified that she has complaints of tingling in her pinky \nand ring finger on both hands.  According to Dr. Chen’s testimony, claimant made those \ncomplaints at the time of her October 26, 2023 visit.  He indicated that those complaints \nwould not be related to carpal tunnel, but instead would be related to cubital tunnel.  Even \nif  all  other  elements  of  compensability  were  proven  for  cubital  tunnel  such  as  rapid \nrepetitive motion, I note that claimant has the burden of offering objective medical findings \nestablishing an injury.  No objective findings have been offered establishing cubital tunnel \nsyndrome.  In fact, according to Dr. Chen, the initial nerve conduction study revealed no \nevidence of cubital tunnel at that time.  While Dr. Chen indicated that he might request a \nrepeat  nerve  conduction  study  test,  at  the  time  of  the  hearing there  were  no  objective \nfindings establishing an injury in the form of cubital tunnel. \n Likewise,  claimant  made  complaints  at  the  time  of  her  office  visit  in  April  2023 \ninvolving  her  right  elbow  and  was  diagnosed  with  lateral  epicondylitis.    Claimant’s \ntreatment included observation.  There are no objective findings establishing an injury in \nthe form of lateral epicondylitis in the medical records.   \n\nGutierrez – H302799 \n \n9 \n \n Accordingly, I likewise find that claimant has failed to prove by a preponderance of \nthe evidence that she suffered cubital tunnel syndrome or lateral epicondylitis as a result \nof her job activities with respondent. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that she suffered \na  compensable  gradual  onset  injury  to  her  right  wrist  and  elbow  on  or  about June  15, \n2022.  Claimant has failed to establish that her job activities were the major cause of her \ndisability or need for medical treatment.  In addition, claimant has failed to offer medical \nevidence supported by objective findings establishing cubital tunnel syndrome or lateral \nepicondylitis.    Therefore,  her  claim  for  compensation  benefits  is  hereby  denied  and \ndismissed. \n Respondent  is  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $283.70. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":14763,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302799 GISELA GUTIERREZ, Employee CLAIMANT TYSON POULTRY, INC., Employer RESPONDENT TYNET CORPORATION, Carrier/TPA RESPONDENT OPINION FILED DECEMBER 19, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkan...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:5"],"injuryKeywords":["wrist","carpal tunnel","repetitive","back"],"fetchedAt":"2026-05-19T22:59:51.314Z"},{"id":"alj-H302396-2023-12-19","awccNumber":"H302396","decisionDate":"2023-12-19","decisionYear":2023,"opinionType":"alj","claimantName":"Rebecca Hall","employerName":"Kohl’s Department Stores, Inc","title":"HALL VS. KOHL’S DEPARTMENT STORES, INC. AWCC# H302396 DECEMBER 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HALL_REBECCA_H302396_20231219.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HALL_REBECCA_H302396_20231219.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H302396 \n \nREBECCA R. HALL, EMPLOYEE        CLAIMANT \n \nKOHL’S DEPARTMENT STORES, INC., EMPLOYER         RESPONDENT \n \nSAFETY NATIONAL CASUALTY CORPORATION / \nSEDGWICK CLAIMS MANAGEMENT SERVICES, INC.,  \nCARRIER/TPA                           RESPONDENT \n            \nOPINION FILED DECEMBER 19, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on December 19, 2023. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by  their attorney,  Mr. Michael E. Ryburn, Attorney-\nat-Law of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n A  hearing  was  held  in  the  above-styled  matter  on  December 19,  2023,  in  Little \nRock, Arkansas on respondents’ Motion to Dismiss for failure to prosecute pursuant to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant was pro se and failed to appear for the hearing.  The \nclaimant  had  filed  a  Form AR-C  on  April  13,  2023,  alleging  back  pain  with  the  injury \noccurring November 14, 2022.  A From AR-2 was filed on April 25, 2023, which provided \nthat it was a medical only claim.  The claimant has not requested a hearing, to date, and \nmore than six (6) months have passed since the filing of the original claim.  Respondents \nfiled a Motion to Dismiss on October 17, 2023, requesting that the matter be dismissed \nfor lack of prosecution pursuant to Commission Rule 099.13 and A.C.A. §11-9-702.  \n\nHALL – H302396 \n \n2 \n \n Appropriate notice was provided to the claimant notifying her that a hearing on the \nMotion to Dismiss was set for December 19, 2023, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nMr. Michael E. Ryburn appeared on behalf of the respondents and asked that the matter \nbe dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent,  I  find  that  this  matter  should  be  dismissed  without  prejudice,  for failure  to \nprosecute  pursuant  to  Ark.  Code  Ann.  §  11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2683,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302396 REBECCA R. HALL, EMPLOYEE CLAIMANT KOHL’S DEPARTMENT STORES, INC., EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY CORPORATION / SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 19, 2023 Hearing before Administra...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:59:53.376Z"},{"id":"alj-G307065-2023-12-19","awccNumber":"G307065","decisionDate":"2023-12-19","decisionYear":2023,"opinionType":"alj","claimantName":"Russell Payne","employerName":"Arkansas Department Of Transportation","title":"PAYNE VS. ARKANSAS DEPARTMENT OF TRANSPORTATION AWCC# G307065 DECEMBER 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PAYNE_RUSSELL_G307065_20231219.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PAYNE_RUSSELL_G307065_20231219.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G307065 \n \nRUSSELL A. PAYNE, Employee                                                                    CLAIMANT \n \nARKANSAS DEPARTMENT OF TRANSPORTATION, Employer          RESPONDENT                          \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier                                   RESPONDENT                          \n \n \n OPINION FILED DECEMBER 19, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents   represented   by   CHARLES   H.   MCLEMORE,   Attorney,   Little   Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  December  4,  2023,  the  above  captioned  claim  came  on  for  hearing  at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on  October 4, 2023 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The prior Opinion of March 4, 2019 is final and res judicata. \n 3.   Respondent has accepted and paid or is paying permanent partial disability \nbenefits based upon impairment ratings of 14% and 12% assigned by Dr. Knox. \n 4.   Claimant reached maximum medical improvement on May 24, 2023. \n\nPayne – G307065 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Wage loss disability. \n2.    Attorney’s fee. \n3.    Respondent’s  entitlement to an offset for disability  retirement benefits  \npursuant to A.C.A. §11-9-411. \n The claimant contends that he is entitled to wage loss disability over and above \nhis impairment ratings.  The claimant contends that his attorney is entitled to an attorney’s \nfee in regard to any wage loss disability awarded in this case. \n The  respondent’s  contentions  are  attached  to  the  Commission’s  Pre-Hearing \nOrder included in the hearing transcript as Commission Exhibit #1.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non October 4, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has failed to prove by a preponderance of the evidence that he is \npermanently totally disabled as a result of his compensable injury.  Claimant has met his \nburden of proving by a preponderance of the evidence that he has suffered a loss in wage \nearning capacity in an amount equal to 50% to the body as a whole. \n\nPayne – G307065 \n \n3 \n \n 3.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n 4.   Pursuant to A.C.A. §11-9-411 respondent is entitled to an offset in an amount \nequal to $189.06 per week. \n \n FACTUAL BACKGROUND \n Claimant is a 55-year-old man who suffered a compensable injury to his cervical \nspine when the hood of a truck fell on his head and neck area on May 17, 2013.   After \nsome initial medical treatment, claimant underwent surgery on September 24, 2013 in the \nform of a fusion and discectomy by Dr. Queeney for herniated discs at C5-6 and C6-7.  \nOn October 24, 2013, Dr. Queeney released claimant to return to work with restrictions. \n Claimant  continued  to  have  complaints  involving  his  neck  and  sought  medical \ntreatment from his primary care physician, Dr. Wilson.  By order dated January 27, 2014, \nclaimant was granted a change of physician to Dr. Wilson. Claimant’s treatment at that \ntime  included  cervical  epidural  steroid  injections;  medications;  work  restrictions;  and \nphysical therapy.  When claimant’s condition did not improve, Dr. Wilson referred claimant \nfor a neurosurgical evaluation with Dr. Luke Knox.  After some conservative treatment by \nDr. Knox, claimant was seen by Dr. Knox’s partner, Dr. Armstrong.  On June 22, 2017, \nDr. Armstrong performed surgery at the C3-4 and C4-5 levels.   \n Following   that   surgical   procedure,   Dr.   Knox   opined   that   claimant   had   an \nimpairment rating in an amount equal to 14% to the body as a whole.  10% of that rating \nwas attributable to the first surgery by Dr. Queeney and 4% to the second surgery by Dr. \nArmstrong. \n\nPayne – G307065 \n \n4 \n \n This claim was the subject of a prior hearing on January 28, 2019.  Following that \nhearing,  an  opinion  was  filed  on  March  4,  2019,  finding  that  respondent  had  not \ncontroverted payment of either the 10% or 4% impairment ratings, and that respondent \nwas not liable for payment of a penalty on the 10% impairment rating.  It also found that \nclaimant’s attorney had provided bona fide legal services and was entitled to a fee equal \nto claimant’s portion of the attorney fee in the amount of 12.5%. This opinion was not \nappealed and the parties have stipulated that it is final. \n Since the last hearing on January 28, 2019, claimant has continued to treat with \nDr. Knox and Dr. Armstrong.  In 2022, Dr. Armstrong performed a third surgical procedure \nwhich  consisted  of  a  fusion  from  C5-C7.    Dr.  Knox  has  opined  that  claimant  reached \nmaximum  medical  improvement  as  of  May  24,  2023,  and  he  assigned  claimant an \nadditional  impairment  rating  equal  to  12%  to  the  body  as  a  whole.   The  parties  have \nstipulated  that  respondent  has  accepted  and  paid,  or  is  paying,  permanent partial \ndisability benefits based upon the 14% and 12% ratings assigned by Dr. Knox. \n After his  first  two  surgeries,  claimant  returned  to  work  for  respondent as  a  crew \nleader.  He testified that he essentially continued performing his regular job duties which \nincluded heavy manual labor. Claimant did not return to work for respondent or for any \nother employer after the third surgery.  Claimant did not believe he could continue working \nfor  respondent  and  respondent  indicated  that  it  could  not  accommodate  claimant’s \npermanent work restrictions.  Claimant has filed for and is receiving disability retirement \nbenefits from respondent.   \n Claimant has filed this claim contending that he is entitled to benefits for wage loss \ndisability as a result of his compensable injury. Respondent contends that it is entitled to \n\nPayne – G307065 \n \n5 \n \nan offset for any disability retirement benefits pursuant to A.C.A. §11-9-411.  \n \nADJUDICATION \n Claimant  contends that  he  is  entitled  to  wage  loss  disability  over  and  above his \nimpairment ratings.  Claimant did not specifically contend that he is permanently totally \ndisabled; however, claimant testified that if there was some kind of work he could do he \nwould be doing it and that he does not believe he could hold down a 40 hour per week \njob given his medication and physical limitations.  Permanent total disability is defined in \nA.C.A. §11-9-519(e)(1) as the “inability because of compensable injury or occupational \ndisease, to earn any meaningful wages in the same or other employment.”  Furthermore, \nclaimant has the burden of proving by a preponderance of the evidence that he suffers \nfrom an inability to earn any meaningful wage in the same or other employment.  A.C.A. \n§11-9-519(e)(2). \n I find that claimant has failed to meet his burden of proving by a preponderance of \nthe evidence that he is permanently totally disabled as a result of his compensable injury.  \nInstead, I find based upon the appropriate wage loss factors that claimant has suffered a \nloss  in  wage  earning  capacity  in  an  amount  equal  to  50%  to  the  body  as  a whole.    In \nconsidering  claims  for  permanent  disability  benefits  in  excess  of  the  impairment,  the \nCommission may take into account various factors.  These factors include the percentage \nof  permanent  physical  impairment  as  well  as  the  claimant’s  age,  education,  work \nexperience,  and  all  other  matters  reasonably  expected  to  affect  his  future earning \ncapacity.  A.C.A. §11-9-522(b)(1). \n The  claimant  is  a  55-year-old  high  school  graduate.    He  has  worked  for  the \n\nPayne – G307065 \n \n6 \n \nrespondent for approximately 25 years.  Claimant previously worked a variety of manual \nlabor jobs.  These included work at Nichols Welding Supply; working at a sand plant that \nwas a subsidiary of Chrisman Ready-Mix; working in the melt furnace, melting aluminum \nfor custom wheels at Superior Wheels; and working at Chrisman Ready-Mix operating a \nrock crusher, pit loader, and haul trucks. \n As  previously  noted,  claimant  has  worked  for  the  respondent  for  25  years.  \nClaimant began his employment with respondent as a laborer and worked up to a job as \na crew leader.  As a crew leader, claimant spent some two to three hours in his office per \nday  before  going  out  to  a  job  site.    Claimant  was  responsible  for  tracking  time  of \nemployees, inputting mileage for all equipment, and checking service records.  He also \ntestified  that  he  had  paper  files  to  maintain  such  as  maintenance  records.  Claimant \ntestified that he used a particular computer program to keep track of time and mileage.  \nAfter  performing  his  office  duties,  claimant  would  go  to  the  job  site  where  he  was \nresponsible for supervising a crew.  However, claimant’s job also required him to perform \nmuch of the manual labor performed by the laborers.  This included operating skid steers, \ndozers, track hoes, pavers, rollers, and dump trucks.  Claimant was also required to train \nnew employees, set up jobs, and order asphalt and other materials. \n As previously noted, respondent indicated it could not accommodate claimant’s \npermanent work restrictions and return him to his prior job as a crew leader.   \n At Dr. Knox’s request, claimant underwent a functional capacities evaluation  on \nApril 12, 2023.  The evaluation determined that claimant gave a consistent and reliable \neffort  with  51  of  53  consistency  measures  within  expected  limits.    The  evaluation \ndetermined that claimant had the ability to lift/carry up to 20 pounds on a frequent basis \n\nPayne – G307065 \n \n7 \n \nwith an occasional right upper extremity lift of 30 pounds and a left upper extremity lift of \n20 pounds.  The evaluation determined that claimant demonstrated the ability to perform \nwork in the medium classification of work over the course of a normal eight hour day. \n Following  the  evaluation,  claimant  returned  to  Dr.  Knox  on  May  24,  2023  who \nnoted in his report that he had reviewed claimant’s functional capacity evaluation which \nhad been done appropriately; had consistent findings; and released claimant to return to \nmedium class work.  He further noted that he did not believe claimant should pursue a \njob that would require jarring and vibration nor in the operation of heavy equipment.  Other \nthan  those  limitations,  Dr.  Knox  indicated  the  functional  capacity  evaluation  should be \nreferred to for complete details on claimant’s limitations.   \n On  September  11,  2023,  claimant  met  with  Keondra  Hampton  for  a  vocational \nrehabilitation  evaluation.    At  that  evaluation  Hampton  obtained  information  regarding \nclaimant’s physical limitations, his work history, his education, and various other factors.  \nHampton indicated that claimant was capable of working within the medium classification \nof work and her report lists various job openings that would be compatible with claimant’s \nskills, physical capabilities, work history and education.  These jobs ranged in wages of \n$16.08 per hour up to $23.75 per hour.   In a subsequent letter from Hampton to claimant \ndated October 9, 2023, Hampton identified various other jobs which ranged in wages of \n$14.70 per hour to $21.84 per hour.   \n Apparently,  there  was  some  miscommunication  and  circumstances  involving \nsickness  and  vacations  which  led  to  claimant  not  specifically  applying  for  any  of  these \njobs.  However, the relevancy of these jobs identified by Hampton is the fact that they are \njobs available within claimant’s physical limitations and skill levels. \n\nPayne – G307065 \n \n8 \n \n It is claimant’s testimony that he does not feel that he is capable of performing a \n40 hour per week job because he is only capable of working two or three days in a row \nbefore he might be unable to work due to pain.  Claimant also indicated that he is currently \ntaking opiate medication in the form of hydrocodone as a result of his work-related injury.  \nNotably, neither the functional capacity evaluation nor Dr. Knox indicated that claimant \nwas limited to working only two to three days per week and Dr. Knox did not indicate that \nclaimant  was  incapable  of  working  while  taking his  hydrocodone.   In  fact, according  to \nclaimant’s testimony, he had been taking hydrocodone and muscle relaxers since 2013 \nand was continuing to work for the respondent. \n \nA The hydrocodone and the muscle relaxers. \n \nQ Have you been taking those consistently since - - \n \nA Since 2013, yes. \n \nQ Okay.  How often did you take those?  Did you  \ntake them four times a day? \n \nA Most of the time. \n \nQ Since 2013? \n \nA On and off.  Like I said, back then it was, you \nknow, you have good days and you have bad days. \nMy second surgery, I took a lot more after the second \nsurgery than I did the first. \n \n Thus, claimant’s use of hydrocodone did not prevent  him from working subsequent \nto 2013 as a crew leader for the respondent. \n Finally, I note that claimant testified that he has not applied for, nor looked for any \njob.  A claimant’s lack of interest in employment is an impediment to the Commission’s \n\nPayne – G307065 \n \n9 \n \nfull assessment of a claimant’s loss and is a factor to be considered in determining wage \nloss.  City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W. 2d 946 (1984); Oller v. \nChampion Parts Rebuilders, 5 Ark. App. 307, 635 S.W. 2d 276 (1982). \n After my review of the relevant wage loss factors presented in this case, I find that \nclaimant has failed to prove by a preponderance of the evidence that he is permanently \ntotally disabled.  Instead, I find that claimant has suffered a loss in wage earning capacity \nin  an  amount  equal  to  50%  to  the  body  as  a  whole.    Claimant  underwent  a  functional \ncapacities  evaluation  which  determined  that  he  was  capable  of  performing  work  in  the \nmedium  classification  of  work.    Dr.  Knox  in  his  report  of  May  24,  2023  noted  that the \nevaluation released claimant to return to work in the medium classification of work and in \naddition  to  the  restrictions  set  forth  in  the  evaluation  stated  that  claimant  should  not \nperform a job which required jarring and vibration or the use of heavy equipment.  The \nclaimant is a 55-year-old high school graduate and a vocational rehabilitation evaluation \nidentified  various  jobs  which  fall  within  claimant’s  limitations  and  skills  according  to \nHampton.    Accordingly,  I  find  that  claimant  is  entitled  to  permanent  partial disability \nbenefits based upon a loss in wage earning capacity in an amount equal to 50% to the \nbody as a whole. \n Respondent  has  controverted  claimant’s  entitlement  to  all  unpaid  indemnity \nbenefits. \n The final issue for consideration involves respondent’s contention that it is entitled \nto an offset for disability retirement benefits pursuant to A.C.A. §11-9-411.  That statute \nstates that any benefits paid to an injured worker shall be reduced in an amount equal to, \ndollar  for  dollar,  the  amount  of  benefits  the  injured  worker  has  received  for  the  same \n\nPayne – G307065 \n \n10 \n \nperiod of disability.  The reduction only applies to that portion paid for by the employer.  \nHere, claimant filed for and received disability retirement benefits from the respondent.  \nRespondent submitted into evidence on Page 19 of Respondent’s Exhibit #2 a worksheet \nsetting out its calculations regarding the amount of this offset.  Based upon the employer’s \ncontribution to claimant’s retirement disability, respondent is entitled to a disability offset \ncredit in the amount of $189.06 per week.  Although there was some initial issue regarding \nthe calculation of this amount, the parties at the hearing agreed that the offset amount of \n$189.06 is accurate. \n Accordingly,  I  find  that  respondent  is  entitled  to  an  offset  for  permanent  partial \ndisability benefits owed in the amount of $189.06 per week. \n \nAWARD \n Claimant has failed to prove by a preponderance of the evidence that he is \npermanently  totally  disabled as  a  result  of  his  compensable  injury.   However,  claimant \nhas proven by a preponderance of the evidence that he is entitled to permanent partial \ndisability benefits in an amount equal to 50% to the body as a whole based upon a loss \nin wage earning capacity.  Respondent has controverted claimant’s entitlement to unpaid \nindemnity benefits.   Pursuant to A.C.A. §11-9-715(a)(1)(B)(ii), attorney fees are awarded \n“only on the amount of compensation for indemnity benefits controverted and awarded.”   \nHere, no indemnity benefits were controverted and awarded; therefore, no attorney fee \nhas been awarded.   Instead, claimant’s attorney is free to voluntarily contract with the \nmedical providers pursuant to A.C.A. §11-9-715(a)(4). \n In addition, respondent is entitled to an offset in the amount of $189.06 per week \n\nPayne – G307065 \n \n11 \n \nfor retirement disability benefits claimant is receiving from respondent pursuant to A.C.A. \n§11-9-411. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $797.45. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n     __________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":18498,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G307065 RUSSELL A. PAYNE, Employee CLAIMANT ARKANSAS DEPARTMENT OF TRANSPORTATION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED DECEMBER 19, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smi...","outcome":"granted","outcomeKeywords":["granted:7","denied:1"],"injuryKeywords":["cervical","neck","herniated","back"],"fetchedAt":"2026-05-19T22:59:55.526Z"},{"id":"alj-H303309-2023-12-19","awccNumber":"H303309","decisionDate":"2023-12-19","decisionYear":2023,"opinionType":"alj","claimantName":"Larry Williams","employerName":"Trotter Electric","title":"WILLIAMS VS. TROTTER ELECTRIC AWCC# H303309 DECEMBER 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILLIAMS_LARRY_h303309_20231219.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILLIAMS_LARRY_h303309_20231219.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H303309 \n \nLARRY WILLIAMS, Employee          CLAIMANT \n \nTROTTER ELECTRIC, Employer     RESPONDENT \n \nUNITED FIRE GROUP, Carrier/TPA      RESPONDENT \n \n \n OPINION FILED DECEMBER 19, 2023  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn March 28, 2023, the claimant filed an AR-C requesting various compensation benefits \nin which he alleged an injury to his lower back on December 30, 2022. The claim was denied in \nits entirety. There has been no request for a hearing or additional activity by the claimant since \nthe filing of the Form AR-C. \n On  September  13,  2023,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim  be  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for  December  7,  2023. \nNotice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on \nOctober 25, 2023. That certified mail notice was returned to the Commission by the Post Office \nwith a notation “Return to Sender. Not Deliverable as Addressed. Unable to Forward.” \n\nWilliams – H303309 \n \n-2- \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2335,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H303309 LARRY WILLIAMS, Employee CLAIMANT TROTTER ELECTRIC, Employer RESPONDENT UNITED FIRE GROUP, Carrier/TPA RESPONDENT OPINION FILED DECEMBER 19, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Cl...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1","denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:59:57.595Z"},{"id":"alj-H208665-2023-12-18","awccNumber":"H208665","decisionDate":"2023-12-18","decisionYear":2023,"opinionType":"alj","claimantName":"Alesha Cantrell","employerName":"United Parcel Service, Inc","title":"CANTRELL VS. UNITED PARCEL SERVICE, INC. AWCC# H208665 DECEMBER 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Cantrell_Alesha_H208665_20231218.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Cantrell_Alesha_H208665_20231218.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208665 \n \nALESHA CANTRELL, EMPLOYEE  CLAIMANT \n \nUNITED PARCEL SERVICE, INC., \nEMPLOYER                                                                                               RESPONDENT \n \nLM INSURANCE CORPORATION, \nEMPLOYER                                                                                               RESPONDENT \n \n \nOPINION FILED DECEMBER 18, 2023 \n \nHearing before Administrative Law Judge Steven Porch on December 15, 2023, in Forrest \nCity, St. Francis County, Arkansas. \n \nClaimant represented himself Pro Se. \n \nThe  Respondents  were  represented  by  Mr.  David  Jones,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  motion  to  dismiss  filed  by  the \nRespondent on December 8, 2023. A hearing was set on December 15, 2023, in Forrest \nCity,  Arkansas.  Claimant  alleges  she  has  sustained  compensable  injuries  to  her  right \nshoulder,  right  knee,  right  hip,  and  right  thigh  on  November  3,  2022.  Claimant  was \nrepresented by Ms. Laura Beth York until she filed a motion to withdraw as counsel on \nMay 22, 2023. This motion was granted by the Commission on June 1, 2023. No request \nfor a hearing has been made by the Claimant. A notice for the motion to dismiss hearing \nwas  received at  the home  the  Claimant  listed  as  her address  on September 23,  2023. \nThe  notice  listed  the  Quorum  Courtroom  as  the  location  for  the  hearing but  we  were \nmoved  to  the  upstairs  courtroom.  A  sign  was  placed  on  the  Quorum  Courtroom  door \nlisting the new upstairs location. Respondents counsel, David Jones,  went downstairs to \n\nCANTRELL H208665 \n \n \n2 \nsee if the Claimant could be located. I did my own personal search for Claimant a few \nminutes  after  the  10:30  am  start  time  trying  to  locate  Claimant  with  no success.  The \nhearing began approximately 20 minutes after the official start time when the Claimant \ncould not be located. Respondents then went forward with their motion.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including Respondents’ Exhibit 1, thirty-eight \npages  of  non-medical  records,  Commission  Exhibit  1,  one  page  notice  of  hearing, \nCommission Exhibit 2, one page notice that was placed on the Quorum Courtroom door, \nand the argument of Respondents’ counsel, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \n\nCANTRELL H208665 \n \n \n3 \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n The evidence reflects that Claimant’s injury occurred on November 3, 2022, when \nshe dropped off a package and had to run from a dog that resulted in injuries to her right \nthigh,  right  hip,  right  knee  and  right  shoulder.  Respondents  accepted  this  claim  as \ncompensable and paid benefits. Since Claimant filed his Form C on December 13, 2022, \nand the subsequent withdrawal of Claimant’s formal counsel, Laura Beth York, this claim \nhas been inactive. After considering all of the evidence, I find that Respondents motion \nshould  be  granted under  Rule  13.  Thus,  I  find  that  the  Respondent has  proven  by  the \npreponderance of the evidence that its motion should be granted. \n \n \n\nCANTRELL H208665 \n \n \n4 \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondent’s Motion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5611,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208665 ALESHA CANTRELL, EMPLOYEE CLAIMANT UNITED PARCEL SERVICE, INC., EMPLOYER RESPONDENT LM INSURANCE CORPORATION, EMPLOYER RESPONDENT OPINION FILED DECEMBER 18, 2023 Hearing before Administrative Law Judge Steven Porch on December 15, 2023, in Forrest C...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:5"],"injuryKeywords":["shoulder","knee","hip"],"fetchedAt":"2026-05-19T22:59:42.974Z"},{"id":"alj-H301098-2023-12-18","awccNumber":"H301098","decisionDate":"2023-12-18","decisionYear":2023,"opinionType":"alj","claimantName":"Steven Carrick","employerName":"Circle K Stores, Inc","title":"CARRICK VS. CIRCLE K STORES, INC. AWCC# H301098 DECEMBER 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Carrick_Steven_H301098_20231218.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Carrick_Steven_H301098_20231218.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301098 \n \n \nSTEVEN C. CARRICK, EMPLOYEE CLAIMANT \n \nCIRCLE K STORES, INC., \n EMPLOYER RESPONDENT \n \nINDEMN. INS. CO. OF NO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED DECEMBER 18, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on December 13, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr. Lee  J.  Muldrow,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  Respondents’  Motion  to \nDismiss.    In  addition  to  Claimant’s  testimony,  the  record  consists of  Commission \nExhibit  1,  the  October  9,  2023,  Order  by  Administrative  Law  Judge  Chandra \nBlack,  copies  of  electronic  correspondence,  the  Notice  of  Hearing,  and  proof  of \nservice  thereof,  consisting  of  ten  numbered  pages;  Claimant’s  Exhibit  1,  forms, \npleadings  and  correspondence,  consisting  of  11  pages;  Respondents’  Exhibit  1, \nthe  Order,  consisting  of  three  numbered  pages;  Respondents’  Exhibit  2,  their \nprehearing  questionnaire  response,  consisting  of  four  numbered  pages; and \n\nCARRICK – H301098 \n2 \n \nRespondents’ Exhibit 3, their August 22, 2023, letter to Judge Black, consisting of \ntwo numbered pages. \n In the above-referenced Order, Judge Black wrote: \nAccordingly,   the   Commission   grants   [R]espondents’   motion   to \ncompel.  Claimant is ordered to execute a HIPAA [Health Insurance \nPortability and Accountability Act]-compliant [release] prepared and \nprovided  by  [R]espondents.    Claimant  must  return  the  executed \nrelease  to  [R]espondents’  counsel  no  later  than October  23,  2023.  \nAny  failure  to  abide  by  this  [O]rder  may  subject  [C]laimant  to \nsanctions,  including  without  limitation  contempt  or  dismissal  of  his \nclaim. \n \n On  October 31,  2023,  Respondents  moved  for  dismissal  of  this  claim, \nbased  on  Claimant’s  alleged  failure  to  obey the above directive.    He  was  served \nwith the November 2, 2023, Notice of Hearing on November 3, 2023, via certified \nmail.  At the December 13, 2023, hearing, Claimant in his testimony admitted that \n(1) he received notice of the hearing; (2) despite his understanding that he was to \ncomply with the October 9, 2023, Order—specifically the language therein quoted \nabove—he has failed and refused to do so.  He compounded this non-compliance \nby again declining at the hearing to sign the release in question.  In so doing, he \nraised the same objections that Judge Black had already carefully considered and \nproperly rejected in her Order. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \n\nCARRICK – H301098 \n3 \n \nthe testimony of Claimant, the following Findings of Fact and Conclusions of Law \nare hereby made in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the   Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute his claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of this \nclaim—by a preponderance of the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nCARRICK – H301098 \n4 \n \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  without  good \ncause  has  repeatedly  knowingly  failed  and  refused  to  cooperate  during  the \ndiscovery  phase  of  this  matter  by  executing  a  HIPAA-compliant  medical  release \nas directed by Judge Black.  Thus, the preponderance of the evidence establishes \nthat  he  has  failed  to  prosecute  his  claim.    He  was  duly  warned  that  this  non-\ncompliance could result in dismissal of his claim; and indeed it should.  Dismissal \nis  clearly  warranted  here  under  Rule  13.  Respondents’  Motion  to  Dismiss  is \nhereby granted. \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co.,  2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629 S.W.2d 284 (1982)).  Based on the above authorities, I find that the dismissal \nof this claim should be and hereby is entered without prejudice.\n1\n \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nCARRICK – H301098 \n5 \n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":6302,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301098 STEVEN C. CARRICK, EMPLOYEE CLAIMANT CIRCLE K STORES, INC., EMPLOYER RESPONDENT INDEMN. INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED DECEMBER 18, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on December 13, 2023, in ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:59:45.030Z"},{"id":"alj-H010070-2023-12-18","awccNumber":"H010070","decisionDate":"2023-12-18","decisionYear":2023,"opinionType":"alj","claimantName":"Maria Delgado","employerName":"Clarksville Footwear","title":"DELGADO VS. CLARKSVILLE FOOTWEAR AWCC# H010070 DECEMBER 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DELGADO_MARIA_H010070-20231218.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DELGADO_MARIA_H010070-20231218.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H010070 \n \nMARIA DELGADO, Employee                                                          CLAIMANT \n \nCLARKSVILLE FOOTWEAR, Employer                                                          RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, Carrier                                             RESPONDENT \n \n \n OPINION FILED DECEMBER 18, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope County, \nArkansas. \n \nClaimant represented by ANDY L. CALDWELL, Attorney, Little Rock, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On September  26,  2023,  the  above  captioned  claim  came  on  for a hearing  at Russellville, \nArkansas.  A pre-hearing conference was conducted on May 18, 2023, and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.   The employee/employer/carrier relationship existed on November 6, 2020.  \n            At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Compensability regarding claimant’s jaw, back, and leg injuries. \n            2.  Whether claimant is entitled to additional medical treatment regarding a neurological injury  \n                to the head. \n\nDelgado-H010070 \n2 \n \n \n          3.   Whether claimant is entitled to temporary total disability benefits from November 7, \n            2021, to a date yet to be determined. \n          4.  Compensation rate. \n          5.  Whether claimant is entitled to mileage and out of pocket medical expenses. \n          6.  Attorney’s fees. \nAt the hearing, claimant added an issue regarding the compensability of claimant’s injuries to \nher  eyes  and  ears.    This additional  issue  had  been  raised  in  claimant’s  amended  prehearing \nquestionnaire, and respondent had no objection to this issue being added to those set forth above.  \nAfter the hearing, the parties stipulated claimant had an average weekly wage of $448.80, which \nwould provide a temporary total disability rate of $299. \n All other issues are reserved by the parties. \n The  claimant  contends\n1\n that “claimant’s average weekly wage will be determined by the \ncontract of hire, wage records and Arkansas law. Claimant contends that her average weekly wage was \n$448.80 at the time of her injury. Respondents have paid her at the incorrect rate. Claimant is entitled \nto an underpayment and her attorney is entitled to a fee for same. On or about November 6, 2020, \nthe claimant sustained compensable injuries to her head, eyes, ears, jaw, back, and legs in the course \nand scope of her employment while falling from a ladder. The respondents accepted the claim and \npaid   certain   benefits. Respondents   state   that   they   have   accepted   compensable   head   injury. \nRespondents have controverted the claimant’s entitlement to additional benefits. Respondents paid \ntemporary total disability from the date of injury until November 6, 2021, albeit at the incorrect rate. \nThe claimant contends that she is entitled to an underpayment and attorney’s fees for same. The \n \n1\n These contentions are from the amended pre-hearing questionnaire claimant submitted after the pre-hearing order \nwas entered. (CL.NM.X.2) \n\nDelgado-H010070 \n3 \n \n \nclaimant also contends that she is entitled to temporary total disability from November 7, 2021, to a \ndate yet to be determined. The claimant is also entitled to additional treatment for her compensable \ninjuries or compensable consequences thereof. Dr. Morse has recommended additional treatment for \nthe claimant’s head injury and symptoms, which  have  been  denied.  Dr. Bolding  has  recommended \nadditional  treatment  for  her  TMJ  which  has  been denied.  The  claimant  is  entitled  to  ongoing  pain \nmanagement  for  her  back  injury.  Respondents  accepted  and  paid  for  some  benefits  pertaining  to \nclaimant’s ear and eye injuries. Respondents have not admitted that the claimant sustained admittedly \ncompensable injuries to her eyes and ears. Claimant requests a determination as to compensability and \na  finding  that  all  treatment  for  those  was  reasonable,  necessary,  and  causally  related  to  her \ncompensable  injuries  or  a  compensable  consequence  therefrom.  Upon  information  and  belief,  the \nclaimant’s group health providers have paid some of those benefits. Respondents should be required \nto pay all reasonable and necessary medical expenses for all compensable injuries and compensable \nconsequences; reimburse the group health providers and the claimant for any out-of-pocket expenses \nand  mileage,  where  necessary. The  claimant  contends  her attorney  is  entitled  to attorney’s fees. All \nother issues are reserved.” \n The respondents contend that “they accepted and paid the medical and indemnity benefits \nrelated  to  the  November  6,  2020, event. Claimant’s present complaints are related to preexisting \nconditions/events for which respondents are not responsible.” \n From a review of the entire record, including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n\nDelgado-H010070 \n4 \n \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1. The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on  and \ncontained in a pre-hearing order filed that same date are hereby accepted as fact, as is the stipulation \nby the parties as to the claimant’s average weekly wage of $448.80 per week. \n 2.  Claimant has met her burden of proving that she is entitled to additional medical treatment \nfor her compensable head injury of November 6, 2020.  \n 3.  Claimant has met her burden of proving that she suffered a compensable injury to her right \njaw on November 6, 2020, and is entitled to medical benefits for that injury.  \n 4.   Claimant  failed  to  meet  her  burden  of  proving  that  her  back  and  leg were injured  on \nNovember  6,  2020, or that  the  issues  she  has  with  those  parts  of  her  body  were a  natural  and \ncompensable consequence of the accident that occurred on that day.  \n 5.  Claimant met her burden of proving that she suffered a compensable injury to her right eye \nand the treatment for that injury was reasonable and necessary, but failed to meet that burden for her \nprescription lenses following the accident.  \n 6.  Claimant met her burden of proving she suffered a compensable injury to her right ear that \nresulted in posterior canal Benign Paroxysmal Positional Vertigo (BPPV) on November 6, 2020, and \nthe medical treatment for that injury was reasonable and necessary.  Claimant failed to prove that her \nbilateral hearing loss was a result of her compensable injury.  \n 7.          Claimant  met  her  burden  of  proof  that  she  was  entitled  to  temporary  total  disability \nbenefits until December 27, 2021, but failed to prove she was entitled to additional temporary total \ndisability benefits after that date.  \n 8.   Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical  treatment \nprovided in connection with claimant’s compensable injuries, and for mileage for claimant’s travel to \n\nDelgado-H010070 \n5 \n \n \nall such medical providers.  \n 9.  Respondent has controverted claimant's entitlement to all unpaid indemnity benefits. \n \n FACTUAL BACKGROUND \n As mentioned above, claimant filed an amended prehearing questionnaire on July 10, 2023, \nafter the prehearing order of May 18, 2023, was entered.  A telephone conference between the parties \nand the Court took place shortly thereafter.  Respondents’ attorney advised that he did not need to \nfile an additional prehearing questionnaire in response to the amended prehearing questionnaire, and \nI told the parties that I would simply announce the amended issues at the hearing rather than doing a \nnew order.   \n At  the  hearing,  the  issues  were individually recited,  and  both  parties announced  they  were \nready to proceed at the hearing on those recited issues.     \n Claimant objected to portions of Respondent’s Medical Exhibit (pages 1-7 and 85-88).  The \nobjection was based on when the records were received by claimant.  As these were turned over within \nseven days of the hearing, I admitted both over claimant’s objection.    \n At the conclusion of the hearing, I requested briefs from the parties outlining their position \non  the  various  issues  presented.  The excellent  briefs submitted  by  each  party  were  very  much \nappreciated.  \nHEARING TESTIMONY \n \n Claimant testified that on November 6, 2020, she was working as a cleaner for respondent. \nOn that date, she was on a ladder cleaning a window and fell from the third rung of the ladder. She \nwas  unaware  that  she  had  lost  consciousness  but  was  told  by  Rosa  Torres,  the  HR  person  for \nrespondent, that she had done so. She remembers sitting on a rock outside of the building surrounded \nby  several  employees  of  respondent.  She  was  taken  to  the  hospital  in  Clarksville  and  then  sent  by \n\nDelgado-H010070 \n6 \n \n \nhelicopter to Little Rock. Claimant said that her head hurt, and her neck had been immobilized with \na collar. She related swelling on the right side of her head and testified that her neck “had a little ball \nthat would inflate and then go down and inflate and go down.”  \n After the fall, claimant testified to other problems that she has had that she attributed to the \nfall. These include sensitivity to sound and noise on her left side, jaw pain on the right side of her \nhead, issues with her low back when she is walking, and the pain radiates from her back into her right \nleg. She said because of the pain in her right leg, it can’t hold her weight and it has caused her to fall. \nClaimant said that she has had problems with her vision since the accident, as lights and headlights \nfrom cars affect her at night. Claimant testified that she had headaches that were different from the \nhigh  blood  pressure  headaches  she  had  prior  to  the  accident.  She  also  stated  that  she  had  trouble \nsleeping due to pain and nightmares. \n As of the date of the hearing, claimant said she had not been released to fully return to work. \nShe has been approved for social security disability as of May 2023. She had hearing aids prescribed \nbut wasn’t wearing them on the date of the hearing, as they were being repaired.  \n On cross-examination, claimant related her employment history prior to the date of the fall, \nwhich included working in retail, cutting hair, and working in the plant at Clarksville Footwear in the \nsewing department before she began her position as a cleaner. Claimant said that she had some medical \nconditions  before  this  injury  in  November  2020,  including  high  blood  pressure,  diabetes,  high \ncholesterol, a thyroid issue, and was on medication to protect her liver. She had not had any surgery \neither related to this accident or otherwise, as of the date of the hearing. \n Claimant  said  she  was  working  in  the  cleaning  department because  of  some  issues  she  had \nwith her back before November 6, 2020. \n Since  the  accident,  claimant  testified  that  she  makes  pinatas  and  earns  between  $60.00  and \n\nDelgado-H010070 \n7 \n \n \n$120.00 per month doing that. She can drive to familiar places such as Walmart or church. She can \ncook, clean, and do some laundry but not like she did before the fall. As of the date of the hearing, \nclaimant was not using a cane, a brace, or a walker, nor was she wearing glasses, but she said that was \nbecause she was not reading. \n Claimant said she showed the knot on her head to the doctors in Clarksville and in Little Rock. \nShe was going to physical therapy at the hospital in Clarksville. At the first physical therapy session, it \nwas mentioned to her that she might be referred to a different neurologist but had not been referred \nto an orthopedist or a neurosurgeon for her back complaints. \n On redirect, claimant clarified that she was not contending that she was blind or deaf, but her \neyesight and hearing has become worse since the accident. \n  Claimant’s daughter, Perla Delgado (referred to as “Perla” to eliminate confusion) testified \nthat she is currently living with her mother and has for her entire 29 years of life. She has observed \nher mother’s physical and mental condition before and after the accident and has noticed physical and \nemotional changes. She has seen where her mother has been limited in many ways since the incident \nas  far  as  walking  and  the  amount  of  pain  she  has.  Emotionally, Perla  said her  mother was more \nwithdrawn and  defensive.  Her  interaction  with  her  grandchildren  has  changed.  Claimant is  not  as \npatient as she used to be and seems irritable. Perla had noticed problems with her mother’s memory \nand  had  observed  the  difficulties  that  claimant  had walking  and getting  in  and  out  of  a  truck.  She \nstated that claimant can still do some household chores, but such take her longer than it did before \nthe accident. Perla accompanied her mother on doctor’s visits to serve as an interpreter on occasions \nand observed that her mother had difficulty communicating the complaints that she was having to her \ndoctors.  \n On cross-examination, Perla admitted that she did not see the accident, as she was not working \n\nDelgado-H010070 \n8 \n \n \nat Clarksville Footwear when her mother fell. She said that claimant can drive now because her focus \nis better; immediately after the accident, they didn’t allow her to do so because claimant was confused \nas to where she was. Perla was unaware that the neurologist had determined that claimant had reached \nmaximum medical improvement.  \n On redirect examination, Perla said that she saw her mother in the early morning of the day \nafter  her  accident and  there  were  two  nurses  that  helped  claimant  get  up  to walk  as  she  was  being \ndischarged. Perla saw the throbbing of claimant’s neck and the swelling on claimant’s head on her \nright side above her ear.  \nREVIEW OF THE EXHIBITS \n \n Between them, the parties submitted approximately 500 pages of medical records, making an \noverall review of them somewhat unwieldy. Instead of such a review, the records relevant to each of \nthe individual claims will be addressed in the appropriate section of the adjudication.   \n Claimant’s non-medical exhibits included payment details, forms filed with the Commission, \nand  several  medical  bills. Respondent  submitted  a  wage  audit  report.  Again,  these  records  will  be \ndiscussed in the appropriate section of the adjudication portion of this opinion.      \nADJUDICATION \n \n Claimant seeks  additional  compensation  for  the  admitted head  injury,  and  for  a  finding  of \ncompensability  for  an  additional five separate  injuries—eyes,  ears, jaw, back  and  right  leg.  The \nprehearing order was a bit nebulous as to what specific injuries respondent accepted as related to the \nNovember 6, 2020, event.  In its brief, respondent clarified that it accepted “that claimant sustained a \nconcussion when she fell descending a stepladder,” but maintains claimant reached maximum medical \nimprovement (MMI) for that injury on or about November 20, 2021, and further disputes that the \nother injuries were related to her compensable head injury. These will be addressed individually below.  \n\nDelgado-H010070 \n9 \n \n \n1. Is claimant entitled to additional medical treatment for her compensable head injury?  \nA claimant can continue to receive medical treatment for a compensable injury after she has \nreached maximum medical improvement (MMI): “(A) claimant may be entitled to ongoing medical \ntreatment after the healing period has ended, if the medical treatment is geared toward management \nof the claimant's injury. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). I find \nthat  claimant  is  entitled  to  continued  treatment by  Dr.  Morse for  her  headaches,  as  that  treatment \nappears  to  be  geared  to managing  her  migraines,  which  I  attribute  to  her  compensable  injury  of \nNovember 6, 2020.  In  reviewing Claimant’s Exhibit #2, I do  not see payments for that  treatment \nbeyond January 2022, and those entries were likely for the December 27, 2021, visit with Dr. Morse. \n2.  Was claimant’s TMJ caused by her fall of November 6, 2020, or alternatively, is it a  \n compensable consequence of that fall? \n Claimant contends  that  her  TMJ  was  either  caused  by  the  fall  or  was  a  compensable \nconsequence  of  her  compensable  head  injury.   Respondents counter  that the maxillofacial  CT \nperformed  on  November  6,  2020,  did not reveal  any facial  fractures,  and  an  MRI  performed in \nSeptember 2021 showed only degenerative changes.  \nWhen  she  fell,  claimant landed  with  enough  force  to  produce  an occipital  scalp  hematoma \nwithout laceration on the right side of her head. (R.X. page 34) Many of the records mention that she \nhad a traumatic brain injury.  She first reported she was having pain in her right jaw—the same side \nof her head that was swollen after the fall—within a week of the incident.   Dr. Scotty Bolding did not \nsee claimant until July 26, 2021, on a referral from  One Call Dental (records from which were not \nprovided).  He ordered an MRI, which wasn’t performed until September 24, 2021.  The impression \nwas:  \n1. Degenerative change involving both temporomandibular joints with normal recapture of \nthe disc with closed mouth technique. \n\nDelgado-H010070 \n10 \n \n \n2. Degenerative change involving both discs and partial tears cannot be excluded. \n3. Normal anterior translation of the mandibular and discs relative to the eminence with open \nmouth technique.  \n4. No medial or lateral subluxation of either disc   \n \n \n Dr. Stephen Kirkpatrick reviewed many of the medical records relating to this claim, and wrote \na  report  dated  December  17,  2021.  While he  said  claimant  has  a  temporomandibular  disorder,  he \nopined the TMJ was not related to her fall in November 2020.  Perhaps inadvertently, he provided an \nexplanation why nothing was done to treat claimant’s reported jaw issue from November 12, 2020, \nuntil she  saw  Dr. Bolding:    She  was  being  treated  for “her  chief  complaints of  dizziness  and  other \ncognitive issues,” as well as beginning a course of physical therapy for her complaints of back and leg \npain.  There was no reason for her to tell the neurologist or those treating other parts of her body \nabout the jaw issue, because those providers were focused on other problems.  \n In reviewing decisions by the Court of Appeals and the Full Commission, I find claimant has \nproven by a preponderance of the evidence that she suffered TMJ on her right side because of the \nfall.    That  she  had  degenerative  changes in  her jaw  is  no  bar  to  recovery; \"An  employer  takes  the \nemployee as he finds him, and employment circumstances which aggravate pre-existing conditions are \ncompensable.\" Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 464, 120 S.W.3d 150, 152 (2003) \n(quoting Nashville  Livestock  Comm'n  v.  Cox,  302  Ark.  69,  73,  787  S.W.2d  664,  666  (1990)).  An \naggravation  of  a  preexisting, non-compensable condition  by  a  compensable  injury  is,  itself, \ncompensable. Williams v. L&W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). \n In Convers  v.  Girl  Scouts  of  Northwest  Arkansas, 2011 AR  Wrk.  Comp.  LEXIS  233, the  Full \nCommission reviewed the records and deposition of the same Dr. Bolding that treated claimant in \nthis case.  It quoted his testimony in the adjudication section of its opinion:  \n \nWe reiterate Dr. Bolding's testimony, \"The jaw joint is not - you know, it's \n\nDelgado-H010070 \n11 \n \n \nessentially, a loose bone attached by soft tissues to the skull. So any type of \nsignificant blow that moves the body or the head and neck area where - there \ndoesn't have to be a direct blow on the jaw, but just the - the significant force \nof a - a sudden stop or a sudden jolt a different way can stretch the ligaments \nor stretch the - the tissues within the joint to create the inflammatory process \nthat she, ultimately, developed the symptoms on.\" \n \nBased on our de novo review of the entire record, the Full Commission finds \nthat  the  claimant  proved  her  temporomandibular  joint  dysfunction  was  a \nnatural consequence flowing from the May 8, 2008, compensable injury. The \nFull  Commission  finds  that  there  was  a  causal  connection  between  the \ncompensable injury and Dr. Bolding's treatment recommendations.   \n \n \n  Given no records or testimony of claimant having TMJ issues before November 6, 2020, the \nseverity of the fall she suffered that day, and her mention of jaw pain as early as November 12, 2020, \nthat  has  not  been  treated,  I  find  claimant  is  entitled  to  medical treatment on  her  right  jaw as \nrecommended by Dr. Bolding. \n 3.  Is claimant’s back and leg injury caused by her fall of November 6, 2020, or alternatively, \nis it a compensable consequence of that fall? \n  In her brief, claimant noted that in the medical records from Johnson Regional Medical Center \n(CL.X, page 8), she was prescribed Meloxicam at the hospital on the date of her fall, and “Meloxicam \nis  a  medication  used  to  treat  pain,  swelling  and  stiffness.    A  diagnosis  of  muscle  strain  along  with \nprescribed treatment of medication and pain management is sufficient to establish objective findings \nof a compensable injury.” This  is  a  misreading  of  that  record;  Meloxicam  was  among  the  list  of \nmedicines  that  claimant  was  taking  prior  to  her  fall. If  it  was  for  her  back  and  leg  issues,  those \nconditions  existed  before  November  6,  2020.  Likewise,  the  prednisone prescription  of  January  5, \n2021, was following an examination by Dr. Karthika D. Veerapaneni, and the reason for the visit was \n“dizziness, blurred vision, personality change, sadness, visual color changes, injury of head, sequela, \nabnormal CT scan and memory changes.” (CL.X.69) There was no mention of back or leg problems \n\nDelgado-H010070 \n12 \n \n \nthat would have resulted in a prescription for prednisone as a treatment.   \nRespondent denied claimant can prove the problems claimant has with her back and right leg \nare related to her compensable fall, alleging the first report of issues with her back and leg was January \n26, 2021.  That is partially correct; the note from UAMS on January 5, 2021 (CL.X.68), mentions that \nclaimant has a history of stumbling from her right leg, but there was no reference to her back injury \nuntil January 26, 2021.  Unlike the jaw injury discussed in the previous section of this opinion which \nwas  reported  a  few  days after  the  accident,  it  was  two  months  before  a  problem  with  her  leg  was \nmentioned and three weeks after that before the problem with her back was noted in the records.   \nClaimant did not cite any objective evidence to support her claim that her back and leg were \ninjured because of that accident, and I saw nothing from a medical provider that linked the fall with \nthe back and leg complaints.  \nThe  Arkansas  Supreme  Court  in Wal-Mart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  447,  990 \nS.W.2d 522, 524 (1999) stated: \n\"The plethora of possible causes for work-related injuries includes many that \ncan be established by common-sense observation and deduction. To require \nmedical proof of causation in every case appears out of line with the general \npolicy of economy and efficiency contained within the workers' compensation \nlaw. To  be  sure,  there will  be  circumstances  where  medical  evidence  will  be \nnecessary  to  establish  that  a  particular  injury  resulted  from  a  work-related \nincident but not in every case.\" (Emphasis added).  \n \nGiven claimant was already prescribed Meloxicam, which she cited as support for her back \nand  leg  injury, as  well  as the  delay  in  reporting  the  back  and  leg  injuries, and  the  lack  of  objective \nmedical evidence tying those injuries to the accident, I find claimant has failed to meet her burden of \nproof on this portion of her claim.  \n4.  Did claimant suffer damage to her eyes and ears which were caused by her fall of November \n6, 2020, or alternatively, a compensable consequence of that fall? \n\nDelgado-H010070 \n13 \n \n \nUnlike  the  previous sections, there were records submitted regarding claimant’s vision and \nhearing from before November 6, 2020.  Claimant was seen in 2015 at UAMS for vision problems.  \nThe impression after that examination was “Orbital right optic nerve with enhancement consistent \nwith optic neuritis. There are several scattered areas a deep and superficial areas of abnormal signal in \nthe white matter as well. These are moderately suggestive of multiple sclerosis.”   When seen by Dr. \nJoseph Chacko on February 24,  2021,  he  recorded  that  claimant  had “post-traumatic syndrome  + \nphotophobia. Fell off ladder 11/2020, hit head and had black eye OS\" “OS” is the abbreviation for \n“left  eye  oculus  sinister.”\n2\n  As claimant’s fall was over two and a half months before she saw Dr. \nChacko, I believe this entry is based solely on what he was told by claimant and not what he observed.  \nPhotophobia can be caused by optic neuritis\n3\n, and I believe claimant’s fall aggravated her pre-existing \noptic neuritis condition.  Dr. Chacko’s notes from his visit with claimant on March 9, 2022, repeated \nhis previous chart entries, but added “?R trigeminal neuralgia.”  \nMuch like Dr. Morse’s notes were for his purposes and not mine, I believe Dr. Chacko knows \nexactly what he meant by this entry; my interpretation of it is that he suspects but is not positive that \nclaimant has trigeminal neuralgia in her right eye.  That condition has many causes, one of which is \nfacial trauma.\n4\n  I am satisfied that claimant has shown by a preponderance of the evidence that the \nblow to her head aggravated a pre-existing condition, and that medical treatment for her right eye is \nrelated to her compensable injury and is reasonable and necessary.  I do not find claimant proved by \na preponderance of the evidence any other work-related injury to her eyes; the optical prescription did \nnot  mention  the  blow  to  the  head  being  the  cause,  and I  cannot  say  without  speculation  that  the \ndecreased vision that required corrective lenses was due to the accident.   \n \n2\n https://www.aao.org/young-ophthalmologists/yo-info/article/ophthalmic-abbreviations-101 \n3\n https://my.clevelandclinic.org/health/symptoms/photophobia \n4\n https://www.mayoclinic.org/diseases-conditions/trigeminal-neuralgia/symptoms-causes/syc-20353344 \n\nDelgado-H010070 \n14 \n \n \nAs  for her  claim  for  ear  damage, claimant  was  diagnosed  with posterior  canal  Benign \nParoxysmal Positional Vertigo on April 19, 2021, and she began treatment via canalith repositioning \nmaneuvers on May 4, 2021.  That treatment was successful as per the May 17, 2021, report by Dr. \nHsin Wei Huang.  While BPPV can be idiopathic, it is also associated with a minor or severe blow to \nthe head when such is known to have occurred.\n5\n As such, I find the BVVP is a compensable injury. I \ncannot tell from looking at claimant’s Exhibit #2 if respondent covered this treatment, but I find it \nwas reasonable and necessary and should have been paid.    \nRegarding the request for hearing aids, I note that Dr. Huang found “a mild decrease in hearing \nin the right and a significant decrease in hearing on the left since the last hearing evaluation done at \nwork in September 2020.” (R.X.81) Unlike  the  BVVN,  I  cannot see  a  common-sense  connection \nbetween a concussion and hearing loss that comes to many people in their fifties that never had that \ninjury.    Dr.  Huang  did  not  try  to  connect  the  injury  with  the  diminished  hearing,  and  I  decline  to \nspeculate  that  the  two  are related.   However,  it  appears to  be  a  moot  point,  because  the  records \nindicate that respondent paid for the hearing aids.     \n5.  Was claimant released at MMI on October 26, 2021, for the compensable concussion \ninjury, thus ending her claim for temporary total disability?  \nTo be  entitled  to TTD benefits  for  an  unscheduled  injury,  the  claimant  must  prove  by  a \npreponderance of the evidence that she remains within her healing period in which she suffers a total \nincapacity to earn wages. Arkansas State Highway & Transportation Department v. Breshears, 272 Ark. 244, \n613 S.W. 2d 392 (1981). \nRespondent cites the October 26, 2021, note from Dr. Michael Morse to support its position  \nthat claimant has reached MMI: “Yolanda, I would say that the patient is at MMI at this time.  There \n \n5\n https://www.mayoclinic.org/diseases-conditions/vertigo/symptoms-causes/syc-20370055 \n\nDelgado-H010070 \n15 \n \n \nis no additional evaluation necessary.” (CL.X.201) This was in response to an inquiry from Ms. \nYolonda Reyes at Travelers Insurance, in which she asked “Do you believe she [Ms. Delgado] is close \nto reaching maximum medical improvement? We hope the Botox injections bring her relief and her \nsymptoms improve enough to get her back into the work force in some capacity.” (CL.X.202).   \nClaimant maintains that Dr. Morse placed her at MMI but only for her headaches. That does \nappear to be his emphasis in his course of treatment and continued to be so after he deemed claimant \nto be at MMI.   I note in his records, Dr. Morse restricted claimant from work on September 30, 2021, \nuntil  he  saw  her  again  on  December  27,  2021.  Following  that  visit,  he  did  not  renew  his  work \nrestrictions; the only other mention of claimant’s work was in the July 27, 2022, entry: “She has not \nbeen able to return to work,” but that was in the context of claimant relating the issues she was having \nwith her back.  Dr. Morse did not again restrict claimant from working to earn wages.   \nI recognize that Dr. Morse’s notes are somewhat confusing from a legal perspective; those \nwere prepared for his use, and I am sure they make sense to him.  He was not asked to clarify why he \nplaced claimant at MMI during the time that he had told her to stay off work for 12 weeks.  As such, \nI find that claimant’s TTD period for her head injury should have ended on December 27, 2021, as \nthere is no indication that she had been told by her physician she could return to work before that \ndate.  \n6.  Did any of the other physical injuries that I have determined to be compensable render \nclaimant unable to earn wages?   \nAs for the other physical issues discussed above, I did not find that a physician removed her \nfrom work for her TMJ, or the compensable problems with her eyes or ears.  I therefore cannot find \nshe was temporarily totally disabled from any of those conditions.   \n7. Was claimant underpaid for temporary total disability benefits?  \n\nDelgado-H010070 \n16 \n \n \n At the hearing, the parties contested the compensation rate.  As noted above, an agreement \nwas reached that claimant’s average weekly wage was $448.80,  yielding  a TTD rate  of  $299.00 per \nweek.  Claimant received three checks in the amount of $598.00, representing six weeks of disability \npayments.  Respondent underpaid  the  remainer  of  her TTD payments  by paying  only  $262.00 per \nweek for the remainder of the time it paid those benefits. (CL.NMX.#2, page 1)\n6\n Claimant is entitled \nto the underpayment and as per my ruling earlier in this opinion, the benefits should be calculated to \nDecember 27, 2021. \n 8.  Is claimant entitled to mileage and out of pocket expenses?  \n Claimant submitted several medical bills as part of her Exhibit #2.  Taking them in that order:  \na.  Clarksville Family Eye Clinic from March 11, 2021: There was no mention of what \nthis bill was for, but it came within a few weeks of Dr. Chacko’s prescription  for \neyeglasses (CL.X.1, page 112), and if it relates to eyeglasses, my earlier ruling denied \nthis as a compensable expense.  \nb. St. Mary’s Physicians Services: This relates to a cardiology claim which was not a part \nof the issues to be decided in this case and is therefore reserved.  \nc. Survival Flight, Inc.:  This is for the airlift to UAMS on the date of her accident and is \ncompensable as a reasonable and necessary expense.  \nd. Radiologists of Russellville:  This is for services provided on the date of her accident \nand is compensable as a reasonable and necessary expense.  \ne. Washington Regional:  This statement does not have dates of service included, but if \nit  is  for  services  provided  by  Dr.  Morse  at  any  time for claimant’s concussion,  my \n \n6\n There was an unexplained single payment of $301.00 shown on that exhibit.  Respondent should recalculate the \nentire amount due to claimant and is entitled to credit for all payments made at the incorrect rate for TTD.  \n\nDelgado-H010070 \n17 \n \n \nearlier ruling accepts this as compensable as a reasonable and necessary expense.  \nf. UAMS:  This is for services provided on the date of the accident and is compensable.  \ng. Arkansas Medical Imaging, Inc.  This is for an MRI related to claimant’s TMJ, and my \nearlier ruling accepts this as compensable as a reasonable and necessary expense.  \n  For any travel to a physician that I have found to be a reasonable and necessary expense, she \nis entitled to her mileage expense.  \nORDER \n Respondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \n All accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \n Pursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \n All issues not addressed herein are expressly reserved under the Act. \n Respondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $1,173.65. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":35060,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H010070 MARIA DELGADO, Employee CLAIMANT CLARKSVILLE FOOTWEAR, Employer RESPONDENT TRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT OPINION FILED DECEMBER 18, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope County, Arkansas....","outcome":"granted","outcomeKeywords":["granted:5","denied:1"],"injuryKeywords":["back","neck","concussion","strain"],"fetchedAt":"2026-05-19T22:59:47.118Z"},{"id":"full_commission-H107091-2023-12-15","awccNumber":"H107091","decisionDate":"2023-12-15","decisionYear":2023,"opinionType":"full_commission","claimantName":"Margaret Macon","employerName":"Mineral Springs, Saratoga School District","title":"MACON VS. MINERAL SPRINGS, SARATOGA SCHOOL DISTRICT AWCC# H107091 DECEMBER 15, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Macon_Margaret_H107091_20231215.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Macon_Margaret_H107091_20231215.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H107091 \n \nMARGARET A. MACON, EMPLOYEE  CLAIMANT \n \nMINERAL SPRINGS, SARATOGA SCHOOL \nDISTRICT, EMPLOYER RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION \nWCT, INSURANCE CARRIER/TPA RESPONDENT \n \n \nOPINION FILED DECEMBER 15, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed June 12, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n \n2. I hereby accept the above-mentioned proposed stipulations as fact.  \n \n3. The Claimant proved by a preponderance of the evidence that she \nsustained compensable injuries to her neck and back on October 6, \n\nMACON – H107091  2\n  \n \n \n2020, while leaning against a table that collapsed, causing her to fall \nto the floor landing on her buttocks.  \n \n4. The Claimant proved that all the medical treatment of record was \nreasonably necessary treatment for her compensable back and \nneck injuries. She also proved her entitlement to additional \ntreatment to include the surgery, as proposed by Dr. Rajesh Arakal \nand any other pain management as recommended by her treating \nphysicians.  \n \n5.  All issues not litigated herein are reserved under the Arkansas \nWorkers’ Compensation Act.  \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies the \nlaw, and should be affirmed.  Specifically, we find from a preponderance of \nthe evidence that the findings made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n\nMACON – H107091  3\n  \n \n \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715(a)(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority finding that the claimant has \nproven by a preponderance of the credible evidence that she sustained \ncompensable injuries to her neck and back during her October 6, 2020 fall,  \nthat all the medical treatment of record was reasonably necessary for her \ncompensable back and neck injuries, that she is entitled to additional medical \ntreatment to include surgery as proposed by Dr. Rajesh Arakal and any other \npain management as recommended by her treating physicians. \n\nMACON – H107091  4\n  \n \n \nThe claimant in this matter is a 70-year-old woman who worked as a \nseventh and eighth grade teacher for Mineral Springs School District.  (Hrng. \nTr, P. 20).  It is undisputed that on October 6, 2020, the claimant was \nleaning against a table when the table collapsed beneath her.  (Hrng. Tr, P. \n22).  The claimant fell to the ground, landing on her bottom with her hands \nout.  Id. \nA hearing was held on March 14, 2023, wherein the Administrative \nLaw Judge determined that the claimant sustained compensable injuries to \nher neck and back during her October 6, 2020 fall.  \nGenerally, a specific incident injury is an accidental injury arising out \nof the course and scope of employment caused by a specific incident \nidentifiable by time and place of an occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i).  This, therefore, requires that a claimant establish by a \npreponderance of the evidence: (1) an injury arising out of and in the course \nof employment; (2) that the injury caused internal or external physical harm \nto the body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings establishing an injury \nas defined in Ark. Code Ann.§ 11-9-102(16) and; (4) that the injury was \ncaused by a specific incident identifiable by time and place of occurrence.  \nArk. Code Ann. § 11-9-102(4)(A)(i). \n\nMACON – H107091  5\n  \n \n \nHere, the claimant contends that her injuries are the result of her \nOctober 6, 2020 fall when a table collapsed beneath her.  (Hrng. Tr., P. 22). \nWhen the table collapsed, the claimant landed on her bottom with her legs \nout in front of her and her neck and shoulder were not directly impacted. \n(Hrng. Tr, P. 44).  The claimant testified that after the fall, she only “felt a \nlittle something” and had resulting stiffness in her back and right hip that \nevening.  Id.  At the hearing, Carla Lamb, another teacher for the respondent \nemployer, testified that the claimant said she felt a “twinge” in her lower back \nafter the fall.  (Hrng. Tr, Pp. 13-14).  Ms. Lamb could not recall when the \nclaimant began complaining about her neck.  (See Hrng. Tr, P. 14). \nThere is significant evidence that the herniations in the claimant’s \nneck are pre-existing.  The claimant was hit by an 18-wheeler, resulting in \nneck and shoulder pain in October 2016.  (Resp. Ex. 1, P. 5).  In October \n2016, claimant had a CT scan of her cervical spine, which revealed: \nThe C4-5 level has a right paracentral to posterolateral \ndisc bulge or herniation, potentially causing mild right \nanterior cord impingement.  C6-7 level has a mild \nbroad posterior disc bulge on sagittal images . . . \nSignificant disc bulge or herniation on the right at the \nC4-5 interspace.   \n \n(Resp. Ex. 1, P. 1). \nAn MRI, also conducted in October 2016, showed: \nAt the C4 5 level, there is a right paracentral disc \nherniation deforming the right ventral aspect of the \n\nMACON – H107091  6\n  \n \n \nthecal sac and spinal cord.  Moderate bilateral neural \nforaminal stenosis seen.  At the C5-6 level, there is a \ncentral disc herniation deforming the ventral thecal sac \nand spinal cord.  Moderate bilateral neural foraminal \nstenosis with compression of the existing C6 roots. \n \n(Resp. Ex. 1, P. 3). \n \nThe claimant was later treated for neck pain following a motor vehicle \naccident in May 2017.  (Resp. Ex. 1, P. 24).  Conversely, an MRI conducted \non December 22, 2020 revealed only “[m]ild multilevel degenerative disease” \nof the cervical spine.  (Resp. Ex. 1, P. 42). \nThe record is clear that at the time of the claimant’s 2020 fall, she \nonly felt a “twinge” or a “little something” resulting in low back and hip \nstiffness that evening.  The claimant has been suffering with herniated discs \nin her cervical spine since as early as 2016.  There is, in fact, no medical \nevidence supporting the finding that the claimant’s purported herniated \ncervical discs resulted from her work-related fall, and the claimant cannot \nprove by a preponderance of the evidence that her alleged neck injuries \nresulted from a specific incident.  Any medical treatment related to the \nclaimant’s cervical complaints are the result of her pre-existing cervical \nherniations.  \nThe imaging performed on October 9, 2020, three days after the fall in \nquestion, revealed a normal lumbar spine, no fracture, no scoliosis or \n\nMACON – H107091  7\n  \n \n \nspondylolisthesis with normal alignment (Clmt. Ex. 1, P. 60).  As a result, the \nclaimant has not proven she sustained a compensable injury to her back. \nAccordingly, for the reasons set forth above, I must dissent from the \nmajority’s opinion. \n \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":8630,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H107091 MARGARET A. MACON, EMPLOYEE CLAIMANT MINERAL SPRINGS, SARATOGA SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WCT, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 15, 2023 Upon review b...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["neck","back","shoulder","hip","cervical","herniated","lumbar","fracture"],"fetchedAt":"2026-05-19T22:29:46.089Z"},{"id":"alj-H300483-2023-12-15","awccNumber":"H300483","decisionDate":"2023-12-15","decisionYear":2023,"opinionType":"alj","claimantName":"Jason Love","employerName":null,"title":"LOVE VS. REYNOLDS CONTRUCTION COMPANY, INC.AWCC# H300483 DECEMBER 15, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/LOVE_JASON_H300483_20231215.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOVE_JASON_H300483_20231215.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H300483 \n \nJASON B. LOVE, EMPLOYEE        CLAIMANT \n \nREYNOLDS CONTRUCTION COMPANY, INC.,  \nEMPLOYER                     RESPONDENT \n \nAMERICAN CASUALTY CO. OF READING, P.A.,/ \nGALLAGHER BASSETT, CARRIER/TPA          RESPONDENT \n \n \n \nOPINION FILED 15 DECEMBER 2023 \n \n \nOn  hearing  before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, 14 September 2023, Pine Bluff, Jefferson County, Arkansas. \n \nMs.  Laura  Beth  York, Attorney-at-Law  with Rainwater,  Holt  &  Sexton of  Little  Rock, \nappeared for the claimant. \n \nMs. Karen H. McKinney, Attorney-at-Law with the Barber Law Firm of Little Rock, appeared \nfor the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 14 September 2023 in Pine Bluff, Arkansas, \nafter  the  parties  participated  in  a  prehearing  telephone  conference  on 6  June 2023. A \nPrehearing Order, admitted to the record without objection as Commission’s Exhibit No 1, \nwas entered that same day. The Order stated the following ISSUES TO BE LITIGATED: \n1. Whether  the  claimant sustained  compensable  injuries  to  his  neck,  back,  and  left \nshoulder by specific incident. \n \n2. Whether the claimant is entitled to reasonable and necessary medical treatment. \n \n3. Whether the claimant is entitled to temporary total disability benefits from 24 October \n2022 to a date yet to be determined. \n \n4.   Whether the claimant is entitled to controverted attorney’s fees. \n \nAll other ISSUES were reserved. \n\nJ. LOVE- H300483 \n2 \n \nThe Prehearing Order set forth the following STIPULATIONS: \n1.   The AWCC has jurisdiction over this claim. \n2.   An employee/employer/carrier relationship existed between the parties on 23 October \n2022 and at all other times relevant to this claim. \n \n3.   The respondents have controverted this claim in its entirety. \n \n3.   The claimant’s average weekly wage\n1\n was  $786,  entitling him to  temporary  total \ndisability  and  permanent  partial  disability  in  the  amounts  of  $524 and  $393, \nrespectively. \n \nThe following WITNESSES  testified at  the  hearing:  the  claimant  testified  on  his  own \nbehalf; and Mr. Casey Harness, Mr. James “J.T.” Tillman, Mr. Wes Brandon, and Mr. Ronnie \nMichael Reynolds testified on behalf of the respondents. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated by reference into the Prehearing Order. Essentially, the claimant contends \nthat he suffered a compensable injury on 23 October 2022 and that he is entitled to associated \nbenefits,  while  the  respondents  contend  that  he  did  not  sustain  a  compensable  injury  by \nspecific  incident  and  that  any  back, shoulder, or  neck  issues  the  claimant  experienced  are \npre-existing and not arising out of his employment. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving  reviewed  the  record  as  a  whole  and  having  heard  testimony  from  the  witness, \nobserving her demeanor, I make the following findings of fact and conclusions of law under \nArkansas Code Anotated § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The parties’ stipulations are accepted as fact. \n \n4. The claimant has  not  proven  that  he  suffered  a  compensable  injury  on  23  October \n2022. \n \n \n1\n The 6 June 2023 Order noted that a stipulated Average Weekly Wage would be offered at \nthe time of the hearing. These amounts are reflective of the same. \n\nJ. LOVE- H300483 \n3 \n \n4. In the absence of a compensable injury, the other issues are moot and need not be \nspecifically addressed. \n \n5. Accordingly, the claimant is not entitled to an attorney’s fee. \n \nIII.  EVIDENCE PRESENTED AT THE HEARING  \n The claimant testified on his own behalf as the sole witness called for his case. The \nrespondents then called Mr. Casey Harness, Mr. James “J.T.” Tillman, Mr. Wes Brandon, \nand Mr. Ronnie Michael Reynolds. Their relevant testimony is recounted below. \nA. Claimant on Direct Examination  \nJason  Love is  a  thirty-two (32) year old  high  school  graduate  with  a  history  of \nconstruction and service industry work. (TR at 10-11) He began working for the respondent \nas a painter on 18 April 2022. Towards the end of September of that year, he began working \nas  a  general  laborer  with  the  carpentry  crew.  This  work  still  involved  painting,  but  also \nhelping with ceiling demolition, cleanup, moving furniture, and preparing areas for painting. \n(TR at 12) \nAccording to his testimony, the claimant participated in a “big furniture move” in \nearly October, when he “over-strained and hurt” himself between his left shoulder blade and \nspine, but kept working. (TR at 13) Mr. Love said that he mentioned some pain, but did not \nreport an accident “because at the time, I didn’t feel like there was anything to report.” (TR \nat 14)  \nOn 23 October 2022, however, the claimant “woke up that morning immobile and in \nsevere pain” that felt like “not simply a sore muscle or something of that nature. It was \nsomething more severe it felt.” Id.  Mr.  Love  presented  to  an  urgent  care  clinic,  where  he \nthought  that  he  mentioned  hurting  himself  at  work. According  to  the  clinic  notes,  his \ncomplaints were listed as: \n8/10 back pain medial to left shoulder blade x3 weeks- states he has had \npleurisy in the past and it feels very similar- states he has had a catch in his \n\nJ. LOVE- H300483 \n4 \n \nbreath  because  of  pain.  Denies  cough,  runny  nose,  sore  throat.  He  works \nconstruction  and  lifts  heavy  objects  often.  He  has  tried  ibuprofen  without \nimprovement. Denies chest pain- pain is primarily in the back. \n \nSee, (Cl.Ex. 1   at 1-6) Chest   X-rays   showed   no   findings.   He   was   diagnosed   with \nmusculoskeletal  strain,  prescribed  a  muscle  relaxer,  and  authorized  to  return  to  work \nwithout restrictions the following day. Id. \n The claimant testified that he mentioned his shoulder bothering him while at work, \nbut that it was “not directed as a – as a on-the-job report filed so to speak.” (TR at 15) Mr. \nLove also said that he was able to perform all work duties before 23 October and that while \nthere was some pain, it seemed manageable. He confirmed that while he woke up in pain on \nthe 23\nrd\n, that was a Sunday and that he had not worked since Friday, 21 October 2022. (TR \nat  16) The  claimant  denied  hunting  or  fishing  or  playing  football  over  the  course  of  the \nweekend. He said that working in general labor and construction, one anticipates some aches \nand pains. (TR at 17) The claimant notified his supervisor Casey Harness via text message \nabout  seeking  treatment. (TR  at  18) Some  of  that  and  subsequent  text  exchanges  were \nintroduced into the record as (Claimant’s Exhibit 2) \n Mr. Love presented for treatment again, this time at the emergency department, on \n31 October 2022. See, (Cl. Ex. 1 at 7-13)  He complained again of pain, now for the preceding \nmonth, and that it was getting worse and disrupting his sleep. He reported feeling numbness \nand tingling down his left upper extremity since his previous visit, but denied a fall or injury. \nA thoracic  spine CT report  showed  no  acute  abnormalities.  He  was  diagnosed  with \nmusculoskeletal  pain  and  radicular  pain,  referred  for  orthopaedic  follow-up,  prescribed \nTylenol #3 and Flexeril, and authorized to return to work without restrictions after three (3) \ndays. Id. \n The  claimant  underwent  an  MRI  study  on  11  November  2022 that  revealed  a \nherniated disc and eventually saw Dr. Seale. (TR at 21) Mr. Love stated that he attributed \n\nJ. LOVE- H300483 \n5 \n \nhis pain to “over-exertion at work” from “immense moving, heavy lifting, et cetera, things of \nthat nature that would result in a sore or a disgruntled muscle.” Id. But he denied filing a \nworkers’ compensation claim around that time. (TR at 22)  \nMr. Love stated that he found a Form N online and provided that to his employer on \nor about 16 December 2022, acknowledging that he gave them notice of an alleged workplace \ninjury  at  that  time. See, (Cl.  Ex.  3)  The  claimant  denied asking for  or  about medical care \nfrom the respondents at the time because he “had already gone to the doctor and that was \nalready in motion.” (TR at 23)  According to the claimant he told Mr. Reynolds that he meant \nno ill will in filing the form, but thought it appropriate “with there being a possible surgery \nand  with – to  my knowledge, that the  incident  happening during work, it seemed  like  the \nappropriate next step.” (TR at 24)  \nThe claimant was unsure about his days worked between the two (2) provider visits, \nbut stated that he had not performed any work for the respondent since 31 October 2022. (TR \nat 25)  \nAccording to the claimant, Dr. Seale performed a C7 to T1 spinal procedure on 23 June \n2023. He remained under Dr. Seale’s care at the time of the hearing. He denied applying for \nSocial  Security  Disability  or  unemployment  benefits,  but  discussed  the  latter with  the \nrespondent. (TR at 26)  \nMr. Love testified that he had not experienced the kind of pain he felt in October since \nhis mid-teens. Most work-related pains he had encountered since, he said, could be relieved \nwith  over-the-counter  pain  medication  and  hot  or  cold  compresses.  The  claimant  denied \nseeking medical treatment for pain in the past or having a primary care physician, but stated \nthat he underwent a previous MRI scan for lower back pain in 2016 when he injured himself \nworking at a rock packing plant. (TR at 28-29) He did not pursue a workers’ compensation \n\nJ. LOVE- H300483 \n6 \n \nclaim associated with that injury. Mr. Love began working another job instead of returning \nafter that injury. \nThe claimant testified that the surgery with Dr. Seale provided some relief and that \nphysical  therapy  had  helped,  but  that  his recovery  had  been slow with  some  ongoing  pain \nand discomfort. (TR at 30)  \nB. Claimant on Cross Examination by Ms. McKinney \nMr. Love confirmed that the present matter was his first experience with a workers’ \ncompensation claim. (TR  at  31) He  also  confirmed  that  during  his  deposition  he  explained \nthat his stepfather Mr. Toby Crow is a workers’ compensation insurance adjuster. Mr. Crow, \nhe testified, told him that he needed to file this workers' compensation claim and helped him \nfill out the Form N he provided to the respondents. (TR at 32) \nThe  claimant  said  that  he  had  experienced  muscle  pain  similar  to  what  he  felt  in \nOctober before and that it was from “over-exertion” or “over-working.” (TR at 34)  Reviewing \nhis Form N, he acknowledged that his stepfather helped him in choosing to use the words \n“objective findings.” (TR at 35) \nMr. Love agreed that he was asked at the urgent care clinic whether his injury was \nwork-related  and  responded  that  it  was  not.  “You  still  told  them,  ‘it’s  not  a  workers’ \ncompensation claim,’ didn’t you?” “Yes, ma’am,” he said. (TR at 36-37) He also acknowledged \nthat at the time he mentioned possible “pleurisy,” and that he did not mention a neck or \nshoulder injury. \nHe  said  that  his  supervisor  was  aware  of  some  pain,  but  that  he  told  him  it  was \nsomething he could work through. Mr. Love testified that on the weekend before presenting \nat the emergency department, he “ate and hung out at the house, rested up, in hopes of \nreturning to work on Monday.” (TR at 38) He was staying with his brother at the time and \nhelping  with  his  brother's  six (6) young  children.  He  continued  helping  take  care  of  the \n\nJ. LOVE- H300483 \n7 \n \nchildren through the summer of 2023, saying that others would come to help, too, while he \nwas first recovering from surgery. (TR at 39)  \nRegarding his visit to the emergency department, the claimant acknowledged that the \nreport showed that he denied a fall or injury, but said, “[t]o clarify, that was meant as a – I \ncouldn’t pinpoint when – when it happened as far as, you know, I lifted this at this time on \nthis date.” When asked, “the stipulations are that you injured yourself on October 23\nrd\n, 2022. \nYou didn’t injury yourself on that day, did you?” he answered, “No, ma’am.” (TR at 42)  Mr. \nLove acknowledged that he did not mention hurting himself at work in the text messages he \nsent Casey Harness when he first missed work. (TR at 44) \nThe claimant agreed that his responses to written discovery provided a work history \nof no more than five (5) previous employers, but a more complete work history was discussed \nat his deposition, which accounted for more than twenty (20) jobs in fourteen (14) years of \nworking. (TR at 46) He acknowledged “over-working and aggravating” his back and neck at \nother  jobs  and  working  other  jobs  just  as  physically  demanding  as  his  work  with  the \nrespondent. (TR at 47) Mr. Love said that he mentioned “general groans and moans” about \npain on the jobsite and that Casey Harness told him to “take it easy” after he said that his \narm was bothering him at some point. (TR at 48) \nMr.  Love  recalled  his  deposition  testimony,  where  he  said  that  he  did  not  hurt  his \nback in a particular instance and further testified at the hearing that “there’s no defining \nmoment of injury to my knowledge as far as like I mentioned, for example, I was doing this \ntask on this day at this time.” (TR at 49) That discussion went on: \nQ:  ... we’re talking about your step dad and the conversations you had with your step \ndad and him educating you on what’s going on, and your answer starting with line 2 \n– what was your answer? \n \nA:  “It was probably a couple weeks after the initial injury. He told me that if I – you \nknow, I may end up – it may be long term, maybe it was something worse. It may be \nlong term. Maybe it was something worse. Maybe look into workers’ comp, to which I \n\nJ. LOVE- H300483 \n8 \n \ntold him that I didn’t think that it would be convincible. I didn’t, because there was \nno defining moment. There was no defining injury, and that’s where he informed me \n–\" \n \nQ:  And that’s where he talked about the gradual onset injury, right? \n \nA:  Yes, ma’am. \n \nQ:  But you told me these are your words, “No defining moment. No defining injury.” \nYou read those words correct? \n \nA:  Yes, ma’am. \n \nQ:  Ad you said those words in your deposition, right? \n \nA:  Correct. \n \nQ:  You had that conversation with your stepfather, right? \n \nA:  Correct. \n \nJudge:  And to be clear from the Prehearing Order, gradual onset [injury] is \nnot being argued. \n \n Ms. York:  It’s not. ... \n \nTR at 50-51. The respondents’ cross examination ended shortly thereafter. \n \nC.  Witness Casey Harness \nMr. Harness testified that he had worked for Reynolds Construction for eight (8) years \nand that he was a construction superintendent. (TR at 58) He recalled the claimant working \non a project at the Juvenile Justice Center in September and October of 2022. According to \nMr. Harness: \nWhat  I  know  about  Jason  getting  hurt  is  he  came  in  on  one  Monday \nmorning and told me that he had injured himself over the weekend. He said \nthat  he thought  that  he  had  pulled something  or  did  something. He told  me \nthat  he  had  been  hurt  previously  and  thought  that  he  had  just  re-pulled \nsomething and he said he wanted to go to the doctor about that. At that point, \nI allowed him to stay and work... He had been taking photos of the furniture... \nHe’s good at taking the pictures, going back and locating the pictures to that \nroom and making sure everything gets put back....  (TR at 60) \n \n\nJ. LOVE- H300483 \n9 \n \nHe believed that this was before the claimant went to urgent care and before he had \nbeen  seen  for  his  shoulder  pain. Mr.  Harness  recalled  asking  if  the  claimant  was  hurt  at \nwork, because he knew as the supervisor, that an accident form would need to be completed \nif so, and the claimant responded “no.” (TR at 61) Mr. Harness went on to say that he was \nfamiliar with the process for reporting workplace accidents. \nOn cross examination, Mr. Harness said that he did not specifically ask the claimant \nhow he hurt himself, but recalled Mr. Love saying that he had been helping his brother with \nmoving some tanks or bottles or something heavy of a similar sort. (TR at 62) \n D.  Witness James “J.T.” Tillman \n Mr. Tillman stated that he worked as a laborer for the respondent and that he had \nworked there for eight (8) years. (TR at 64) When asked about what happened to Mr. Love \nand the reason for the day’s proceedings, he said, “I know he was at his brother’s house \nworking, cutting trees and stuff. He come in that Monday or Tuesday and said his back was \nhurting.” (TR at 65-66) “He said, ‘I hurt my back there at my brother’s.’ You know, he come \nin  complaining  that  his  back was  hurting. He was working with  his  brother that weekend \nand stuff.” Mr. Tillman said he remembered the claimant working for a few days afterwards \nbefore not seeing him at work anymore.  \n On brief cross examination, Mr. Tillman testified that the claimant said his back and \nhis shoulder were hurting, but mostly his back. (TR at 67) \n E.  Witness Wes Brandon \n Mr.  Brandon  testified  that at  the  time  of  the  hearing he  had  worked  for  Reynolds \nConstruction for about sixteen (16) months and that while he did “all kinds of stuff,” he was \nclassified as a carpenter. (TR at 68)  He did not observe the claimant injuring himself at work, \nbut called him after Mr. Love had not been at work for some time. “I called him just to razz \nhim and asked him pretty much ‘Did you quit?’ or ‘What’s up?’ And he says, ‘No,’ he just \n\nJ. LOVE- H300483 \n10 \n \ninjured hisself [sic]. I asked him if he injured hisself [sic] while at work, because I was gonna \nmake fun of him because we were working together hanging drywall and he said, ‘No,’ he did \nnot injure hisself [sic] at work.” (TR at 69) \n F.  Respondent Michael Reynolds \n Mr. Reynolds testified that he is the president of Reynolds Construction, and that he \nwas indirectly aware of Mr. Love complaining about pain in late September or early October \nof 2022. Mr. Harness mentioned Mr. Love complaining of pain “in passing” and said “it was \nno big deal.” (TR at 72)  According to Mr. Reynolds, he and the claimant talked several times \nbefore  the  claimant  alleged  a  workplace  injury.  He  recalled,  “I  believe,  I  asked  him, \nspecifically, in my office, you know, ‘Is this a workers’ comp claim?  Do  we  need  to  move \nforward with this?’ And he said ‘No... he didn’t believe himself that he had a workers’ comp \nclaim.’” (TR  at  73) When they eventually spoke about Mr. Love’s claim, he recalled the \nclaimant thought that he experienced a strain from moving furniture. (TR at 74) \n The witness went on to explain that a formal report of an injury did not occur before \nthe Form N was presented, and that if an injury had been reported, company policy would \nhave triggered a First Report of Injury, possible treatment from Healthcare Plus, an accident \nreport form, and a post-accident drug screening. He said that every new hire is made aware \nof the company’s policies and signs a statement to that effect. (TR at 75-76) \n On cross examination, Mr. Reynolds said that he did not offer medical treatment or \npaperwork to the claimant when they first discussed his pain because “he said he didn’t have \na claim.” (TR at 77)  He confirmed receipt of the Form N in December of 2022 and concluded \nhis testimony shortly thereafter. (TR at 78) \nIV.  ADJUDICATION \n The  stipulated  facts are  outlined  above and  accepted  as  fact. It  is  settled  that  the \nCommission, with the benefit of being in the presence of the witnesses and observing their \n\nJ. LOVE- H300483 \n11 \n \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements.  See Wal-Mart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  448,  990  S.W.2d  522 \n(1999).   \nA. The  Claimant  Failed  to  Prove  by  a  Preponderance  of  the  Evidence  that  he \nSustained a Compensable Injury \n \nWhether the claimant suffered a compensable injury is a threshold matter that must \nbe addressed before considering the merits of his various claims of entitlement based upon \nsuch a finding. Under Arkansas’s workers’ compensation laws, a worker has the burden of \nproving, by a preponderance of the evidence, that he sustained a compensable injury as the \nresult of a workplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). A compensable injury must \nbe established by medical evidence supported by objective findings. Ark. Code Ann. § 11-9-\n102(4)(D).  Objective  medical  findings  are  those  findings  that  cannot  come  under  the \nvoluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i). Causation does not need \nto be established by objective findings when the objective medical evidence establishes that \nan injury exists and other nonmedical evidence shows that it is more likely than not that the \ninjury was caused by an incident in the workplace. Bean v. Reynolds Consumer Prods., 2022 \nArk.  App  276,  646  S.W.3d  655,  2022  Ark.  App.  LEXIS  276,  citing Wal-Mart  Stores, Inc.  v. \nVanWagner, supra. \nMr.  Love alleges  a  compensable  injury  occurred  by  specific  incident.  The  claimant \nmust establish four (4) factors by a preponderance of the evidence to prove a specific incident \ninjury: (1) that the injury arouse during the course of employment; (2) that the injury caused \nan  actual  harm  that  required  medical  attention;  (3)  that  objective  findings  support  the \nmedical evidence; and (4) that the injury was caused by a particular incident, identifiable in \ntime and place. See Cossey v. G. A. Thomas Racing Stable, 2009 Ark. App. 666,5, 344 S.W.3d \n684, 689. \n\nJ. LOVE- H300483 \n12 \n \n I find that Mr. Love fails to meet his burden for satisfying these factors. He has not \nshown  that  it  is  more  likely  than  not  that  he  suffered  an  injury  in  the  course  of  his \nemployment, nor has he shown (as he readily admits) that any particular incident caused an \ninjury. There is conflicting evidence, through testimony I have no reason to find not credible, \nas  to  exactly when and  how  Mr.  Love  injured his  neck,  back,  and shoulder. He  appears  to \nhave told others that he hurt himself working with his brother, with whom he was living at \nthe time, over a weekend, and there is testimony of more than one instance where he denied \na workplace injury. His lodging of the Form N and providing notice of his intent to pursue \nthis  claim  seems  to  have  been  at  the  urging  of  his  stepfather,  who  has  knowledge  of  the \nbenefits available through a workers’ compensation claim and who assisted Mr. Love in \ninitiating his claim. The available evidence, however, simply does not support a finding of a \ncompensable injury in this matter. \nB. Other Claims of Entitlement \n Because Mr. Love fails to meet his burden on a compensable injury, his related claims \nof entitlement must also fail. He is not entitled to TTD benefits or reasonable and necessary \nmedical treatment. His claim for an attorney’s fee, accordingly, also fails. \nV.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis DENIED and DISMISSED. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":23605,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H300483 JASON B. LOVE, EMPLOYEE CLAIMANT REYNOLDS CONTRUCTION COMPANY, INC., EMPLOYER RESPONDENT AMERICAN CASUALTY CO. OF READING, P.A.,/ GALLAGHER BASSETT, CARRIER/TPA RESPONDENT OPINION FILED 15 DECEMBER 2023 On hearing before Arkansas Workers’ Compens...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:3"],"injuryKeywords":["neck","back","shoulder","strain","thoracic","herniated"],"fetchedAt":"2026-05-19T22:59:36.681Z"},{"id":"alj-H201453-2023-12-15","awccNumber":"H201453","decisionDate":"2023-12-15","decisionYear":2023,"opinionType":"alj","claimantName":"Eric Settles","employerName":"Performance Food Group, Inc","title":"SETTLES VS. PERFORMANCE FOOD GROUP, INC. AWCC# H201453 DECEMBER 15, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Settles_Eric_H201453_20231215.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Settles_Eric_H201453_20231215.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H201453 \n \n \nERIC SETTLES, EMPLOYEE CLAIMANT \n \nPERFORMANCE FOOD GROUP, INC., \n EMPLOYER RESPONDENT \n \nINDEMN. INS. CO. OF NO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED DECEMBER 15, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on December 14, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  David  C.  Jones,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on December 14, 2023, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted   into   evidence   without   objection   were   Commission   Exhibit   1 and \nRespondents’  Exhibit  1,  forms,  pleadings,  and  correspondence  related  to  this \nclaim, consisting of 6 and 42 numbered pages, respectively. \n\nSETTLES – H201453 \n2 \n \n The record reveals the following procedural history: \n The First Report of Injury or Illness, filed on February 16, 2022, reflects that \nClaimant  purportedly  suffered  an  injury  to  his  left  shoulder  on  October 21,  2021, \nwhen he tripped and fell at work.  Per the Form AR-2 filed on February 23, 2022, \nRespondents  accepted  the  claim  as  a  medical-only  one.  Respondents’  counsel \nentered his appearance on February 17, 2022. \n Through  then-counsel  Laura  Beth  York,  Claimant  filed  a  Form  AR-C  on \nMarch  28,  2022.    Therein, he requested  the  full  range  of  initial  and  additional \nbenefits  in  connection  with  his  alleged  left  shoulder  injury.    No  hearing  request \naccompanied  this  filing.    In  an  amended  Form  AR-2  filed  on  May  11,  2022, \nRespondents  informed  the  Commission  that  they  were  now  paying  indemnity \nbenefits as  well as medical  benefits  in  connection  with  the  claim.    On  November \n16,  2022,  York  moved  to  withdraw  from  her  representation  of  Claimant.    In  an \norder  entered  on  November  29,  2022,  the  Full  Commission  granted  the  motion \nunder AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nOctober 5, 2023, when Respondents filed the instant Motion to Dismiss under Ark. \nCode  Ann.  §  11-9-702  (Repl.  2012)  and  AWCC  R.  099.13,  along  with  a  brief  in \nsupport  thereof.    Therein,  they  alleged  that  Claimant  had  failed  to  prosecute  his \nclaim,  and  more  particularly,  that  he  had  failed  to  make  a  bona  fide  hearing \nrequest for additional benefits within six months of the filing of the Form AR-C, per \n§  11-9-702(d).    On  October 10,  2023,  my  office  wrote  Claimant,  requesting  a \n\nSETTLES – H201453 \n3 \n \nresponse  to  the  motion  within 20  days.    This  correspondence  was  sent  by  both \ncertified and first-class mail to the address for Claimant listed in the file and on his \nForm AR-C.  While the certified letter was returned to the Commission, unclaimed, \nthe first-class mailing was not returned.  Regardless,  no response  from Claimant \nto the motion was forthcoming. \n On November 14, 2023, a hearing on Respondents’ motion was scheduled \nfor December 14, 2023, at 12:00 p.m. at the Commission.  The Notice of Hearing \nwas  sent  to  Claimant  by  certified  and  first-class  mail  to  the  same  address  as \nbefore.  In this instance, both items were returned\n1\n to the Commission.  On each, \nthe  United  States  Postal  Service  wrote  that  Claimant  had  moved  from  that \naddress without having in place a forwarding order. \n The  hearing  proceeded  as  scheduled  on  December  14,  2023.    Claimant \nfailed to appear at the hearing.  But Respondents appeared through counsel and \nargued for dismissal under, inter alia, Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n \n \n1\nAlthough  page  six  of  Commission  Exhibit  1  contains a  photocopy  of  a \nsigned  certified  mail  receipt,  it  is  apparent  that  the  slip  (bearing  the  signature  of \n“Matthew Taylor” and not Claimant) pertains to an unrelated case. \n\nSETTLES – H201453 \n4 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the   Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute his claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction in pursuit of his claim since the filing of his Form AR-C on March 28, 2022.  \nMoreover,  he  failed  to  appear  on  the  hearing  to  argue  against  dismissal  of  the \nclaim, despite being given  reasonable notice of the  Motion to  Dismiss and of the \nhearing  thereon.    Thus,  the  evidence  preponderates  that  dismissal  is  warranted \nunder  Rule  13.  Because  of  this  finding,  it  is  unnecessary  to  address  the \napplicability of Ark. Code Ann. § 11-9-702(d) (Repl. 2012). \n\nSETTLES – H201453 \n5 \n \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co.,  2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629 S.W.2d 284 (1982)).  Respondents at the hearing asked for a dismissal with \nprejudice.    But  based  on  the  above  authorities, I  find  that  the  dismissal  of  this \nclaim should be and hereby is entered without prejudice.\n2\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7417,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H201453 ERIC SETTLES, EMPLOYEE CLAIMANT PERFORMANCE FOOD GROUP, INC., EMPLOYER RESPONDENT INDEMN. INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED DECEMBER 15, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on December 14, 2023, i...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:59:38.738Z"},{"id":"alj-H300652-2023-12-15","awccNumber":"H300652","decisionDate":"2023-12-15","decisionYear":2023,"opinionType":"alj","claimantName":"Lorena Tinajero","employerName":"Tyson Poultry Inc","title":"TINAJERO VS. TYSON POULTRY INC. AWCC# H300652 DECEMBER 15, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TINAJERO_LORENA_H300652_20231215.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TINAJERO_LORENA_H300652_20231215.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H300652 \n \nLORENA TRUJILLO TINAJERO, Employee                                                      CLAIMANT \n \nTYSON POULTRY INC., SELF-INSURED Employer                                  RESPONDENT \n \n \n OPINION FILED DECEMBER 15, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On  September  25,  2023,  the  above  captioned  claim  came  on  for a  hearing  at  Springdale, \nArkansas.  A pre-hearing conference was conducted on June 1, 2023, and a pre-hearing order was filed \non that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 \nand made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on or about November 30, 2021. \n            3.   The respondents have controverted the claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1.  Whether claimant sustained a compensable injury on or about November 30, 2021. \n            2.  Whether claimant is entitled to medical treatment. \n All other issues are reserved by the parties. \n The claimant contends “She injured her right elbow and shoulder while pulling chicken apart \n\nTinajero-H300652 \n2 \n \nand is entitled to medical treatment. Claimant reserves all other issues.”  \n Claimant withdrew her claim regarding the right elbow at the hearing.  \n The respondents contend that “Claimant did not sustain a compensable injury as that term is \ndefined by Act 796.”     \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe  her  demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on June 1, \n2023 and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.  Claimant  has  met  her  burden  of  proof  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her right shoulder on or about November 30, 2021, and is entitled \nto  reasonable  and  necessary  medical  treatment  for  that  injury  as  recommended  by  Dr.  Robert \nBenafield.  \n FACTUAL BACKGROUND \n After  the  entry  of  the  prehearing  order  but  prior  to  the  hearing,  claimant  advised  that  she \nwanted to reserve any issue regarding claimant’s elbow injury.  Respondent was aware that claimant \nwas not going to proceed with that portion of the claim and would present evidence solely regarding \nher alleged right shoulder injury. \nHEARING TESTIMONY \n            Claimant  testified  on  November  30,  2021;  she  was  working  as  a  sorter,  trimming  chicken \nbreasts. She testified that the machine used in doing the trimming had not been working properly for \n\nTinajero-H300652 \n3 \n \n \na few days and she had difficulty pulling the chicken out of the machine. Claimant testified that as she \nwas pulling a piece of chicken, she felt a burning in her right arm. She told her supervisor about it that \nday but took a pill and declined to go to the nurse’s station. When she returned to work on December \n1, she went to the nurse’s station and made a report. Claimant does not speak English and the form \nwas completed by someone other than herself. Claimant was definite that she said the pain was in her \nelbow and shoulder but did not know what was written on the form.  \n Initially, claimant saw a therapist that came to the plant and treated her shoulder and elbow. \nWhen that wasn’t working, she went to the doctor on Wagon Wheel Road. She felt the doctor wasn’t \ndoing anything to help her. Claimant asked for an MRI because her arm was falling asleep a lot, but \nthe doctor said Tyson wouldn’t pay for it. His treatment was limited to anti-inflammatory pills, which \nworked for a short time, but the pain in her shoulder returned when she stopped taking them.  \n After finishing a course of physical therapy, the Wagon Wheel doctor discharged her over her \nobjection. Claimant said she worked at light-duty while seeing the doctor and doing physical therapy \nusing only her left hand. When returned to regular duty, claimant was wearing a brace, and her shoulder \nwas burning as well as part of her elbow. Claimant testified that she reported the problem with the \nburning in her shoulder to the nurse three times, but she was not sent back to the doctor. After the \nthird time she went to her own doctor, which was Dr. Benafield. She has been placed on restrictions \nand  has  not  used  her  right  shoulder  in  two  months.  Because  respondents  did  not  send  her  for \nadditional treatment, claimant has used her husband’s health insurance to pay for her treatment. \n On  cross-examination,  claimant  said  that  the  only  work  she  had  missed  was  when  she  had \ncarpal  tunnel  surgery  in  February  2023.  She  maintained  that  the  carpal  tunnel  and  shoulder  injury \nhappened on the same day. A couple of days after she hurt her shoulder, she said her arm started to \nfall asleep. The carpal tunnel surgery relieved the numbness issue in her arm.  \n\nTinajero-H300652 \n4 \n \n \n Claimant  did  not  remember  drawing  a  circle  around  her  right  elbow  as  reflected  on \nRespondent’s Non-Medical Exhibit #1 and said the handwriting on the form was not hers except for \nthe signature. When shown that the date on the form was December 8, 2021, she was adamant that \nthe injury happened on November 30. She said there were a lot of papers for her to sign, and since \nthey were in English, she didn’t think they would do something bad. She was told that it said she had \ngotten  her  shoulder  and  elbow  hurt.  All  of  her  dealings  with  the  plant  nurse,  Dana  Thompson, \ninvolved a Spanish interpreter. While the form correctly said that she had pain in her right elbow, she \nsaid that she also told Ms. Thompson that she felt a burning in her shoulder. She had no explanation \nwhy the records would not include the report of a shoulder injury because she told them that. \n On  redirect-examination,  claimant  said  that  the  doctor  was  told  that  she  had  an  elbow  and \nshoulder injury, but the doctor told her that she had to go to the plant to let them know. When she \ndid so, she was told that it was too late because the report had already been sent to the corporation. \nShe did not know what papers she signed because they were in English. She did not remember if the \nform was filled out before she signed it. Where there was a diagram on the form, she said there was \nnothing marked on it when she signed it. She also said that she did not fill out Form-N, but she did \nsign it. Claimant was clear that she reported the injury to her supervisor the day that she was hurt but \nthere was a written report the next day. \n On recross-examination, respondent asked claimant about each of the items contained on the \nform  and  claimant  agreed  that  most  of  the  information  was  correct.  She  said  that  the  form  was \nincorrect in  that  it  failed  to  mention  her  shoulder  injury,  the  day  it  was  reported,  and  the  safety \nmeasures that could have prevented the accident.  \n On redirect-examination, claimant said that failing to include the shoulder injury on numbers \none, three, and six of the team member’s statement of injury was incorrect. Claimant said she was not \n\nTinajero-H300652 \n5 \n \n \ngiven a copy of the papers that she signed.  \n Respondent submitted claimant’s deposition which was taken on June 7, 2023. In reviewing it, \nI did not see any pertinent information that differed from the testimony presented at the hearing.  \nREVIEW OF THE EXHIBITS \n The parties submitted few duplicate records in their exhibits.  Many reflect claimant’s elbow \ninjury was the initial focus of her treatment.  Claimant was first treated by ART at the plant; those \nrecords mentioned claimant’s shoulder in the December 13, 2021, entry “...nothing is stated regarding \narm or shoulder discomfort this session.”  That indicates that something was said in the previous \nsession, and remembered by the therapist, but not noted in the December 10, 2021, record.  On the \nDecember 17, 2021, report, there is the following: “(p)reviously shoulder was noted to be a secondary \nissue but may possibly be a referral source for the elbow discomfort; will address both shoulder and \nelbow today.”  \n Claimant was then referred to Arkansas Occupational Medicine Services, which is commonly \nreferred to by its location on Wagon Wheel Road.  She had her first visit there on January 5, 2022.  In \nthe section titled “Employer Description Of Accident,” PA-C Ceth Dawson recorded: “Ms. Trujillo \nTinajero was sorting chicken and felt like she overworked her elbow and shoulder.”  While under the \ncare of Arkansas Occupational Medicine Services, she was treated conservatively, and released to full \nduty on June 3, 2022.\n1\n  Little if anything was done to address the shoulder issues.  \n Claimant then went to her own doctor and had carpal tunnel surgery on February 17, 2023.   \nFollowing that procedure, she had a steroid injection in her shoulder, and when that didn’t bring her \n \n1\n As the issue regarding claimant’s elbow was reserved, I did not summarize the records involving the treatment of \nthat injury.  I do note, however, that claimant underwent surgery for carpal tunnel after she was released from Arkansas \nOccupational  Medicine  Services  with  no  restrictions  on  the  use  of  her  arm.  Claimant  testified  that  that  surgery \neliminated the problem of her arm going to sleep. (TR.18) \n\nTinajero-H300652 \n6 \n \n \nrelief,  an  MRI  was  ordered.    The  results  of  it  were  recorded  in  Dr.  Robert  Benafield’s records of \nAugust  7,  2023,  where  it was  noted “Patient  was seen  in  follow  up  for  the  right  shoulder after  the \nMRI. This showed low- grade partial-thickness articular surface tear of the infraspinatus intrasubstance \nof the distal supraspinatus and some degenerative changes of the AC joint and a type II acromion. In \nMarch she had a subacromial injection that only gave her 40% improvement for about two weeks.”  \nDr. Benafield’s last note of September 11, 2023, reads “We will try a month of formal physical therapy \nto the shoulder and if that does not improve then we are going to have to have a discussion about \nsurgical intervention.”  That visit was two weeks before the hearing.  \nADJUDICATION \n \n At the hearing, respondent’s position was simply that claimant did not sustain a compensable \ninjury as defined in Arkansas law.  After considering all the evidence in this matter, I disagree.  \n A claimant's testimony is never viewed as uncontroverted, but the Commission need not reject \nthe claimant's testimony if it finds that testimony worthy of belief. Ringier America v. Combs, 41 Ark. \nApp. 47, 849 S.W.2d 1 (1993).  I found claimant to be credible in her testimony and supported by the \ndocumentary evidence.   \n During cross-examination, claimant was asked at length about the “Team Member Statement \nof Injury/Illness,” (R.X. 2, page 1), a document in English that she (1) didn’t complete, (2) couldn’t \nread and (3) wasn’t provided a copy to have someone else read to her after she signed it.  I believe \nclaimant did mention that she hurt her shoulder at the same time, because the second entry from the \ntherapist that came to the plant where she worked recorded nothing was mentioned about her “arm \nand  shoulder  discomfort  this  session.”  (Emphasis added).  There’s no reason to say that unless \nsomething  about  the  shoulder  had  been  mentioned  in  the  first  session.    Add  to  that  the  entry  at \nArkansas Occupational Medicine Services that is the employer’s account of the injury that  clearly \n\nTinajero-H300652 \n7 \n \n \nmentions a shoulder issue, and I find sufficient evidence that claimant met her burden of proof that \nshe suffered (1) an injury arising out of and in the course of employment; (2) the injury caused internal \nor  external  harm  to  the  body  which  required  medical  services  or  resulted  in  disability  or  death;  (3) \nmedical evidence supported by objective findings establishing an injury; and (4) the injury was caused \nby a specific incident identifiable by time and place of occurrence. Odd Jobs and More v. Reid, 2011 Ark. \nApp. 450, 384 S.W. 3d 630.  The objective evidence came later because the medical providers were \nnot treating the shoulder, but rather the elbow.  When claimant was released with no restrictions but \nstill  had  pain  in  her  elbow  and  shoulder,  the  doctor  she  selected  diagnosed  the  problem instead  of \nignoring it. The medical treatment recommended for claimant’s right shoulder at Ozark Orthopedics \nis reasonable and necessary to treat the compensable right shoulder injury.  \nORDER \nClaimant has met her burden of proving by a preponderance of the evidence that she is entitled \nto additional medical treatment as recommended by Dr. Benafield.  \nPursuant to A.C.A. § 11-9-715(a)(1)(B)(ii), attorney fees are awarded \"only on the amount of \ncompensation for indemnity benefits controverted and awarded.\" Here, no indemnity benefits were \ncontroverted and awarded; therefore, no attorney fee has been awarded. Instead, claimant's attorney \nis free to voluntarily contract with the medical providers pursuant to A.C.A. § 11-9-715(a)(4). \nRespondent  is  responsible  for  paying  the  court  reporter's  charges  for  preparation  of  the \nhearing transcript. \n IT IS SO ORDERED. \n                                                                                             \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":14344,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300652 LORENA TRUJILLO TINAJERO, Employee CLAIMANT TYSON POULTRY INC., SELF-INSURED Employer RESPONDENT OPINION FILED DECEMBER 15, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas. Claimant represented ...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["shoulder","back","carpal tunnel"],"fetchedAt":"2026-05-19T22:59:40.907Z"},{"id":"alj-H301500-2023-12-14","awccNumber":"H301500","decisionDate":"2023-12-14","decisionYear":2023,"opinionType":"alj","claimantName":"Amber Potts","employerName":"Wal-Mart Associates, Inc","title":"POTTS VS. WAL-MART ASSOCIATES, INC. AWCC# H301500 DECEMBER 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Potts_Amber_H301500_20231214.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Potts_Amber_H301500_20231214.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301500 \n \n \nAMBER POTTS, EMPLOYEE CLAIMANT \n \nWAL-MART ASSOCIATES, INC., \n SELF-INSURED EMPLOYER RESPONDENT \n \nWAL-MART CLAIMS SVCS., \n THIRD PARTY ADMR. RESPONDENT \n \n \nOPINION FILED DECEMBER 14, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on December 13, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Rick  Behring,  Jr.,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on  December 3, 2023, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nAdmitted into evidence without objection were the following:  Commission Exhibit \n1  and Respondents’  Exhibit  1,  forms,  pleadings,  and  correspondence  related  to \nthis claim, consisting of 21 and 27 numbered pages, respectively. \n\nPOTTS – H301500 \n2 \n \n The record reveals the following procedural history: \n The  First  Report  of  Injury  or  Illness,  filed  on  March  6,  2023,  reflects  that \nClaimant  purportedly  suffered  an  injury  to  her  hands  on  October  10,  2022,  from \nlifting  meat  in  a  cooler  at  work.    Per  the  Form  AR-2  filed  on  that  same  day, \nRespondents controverted the claim in its entirety.  Respondents’ counsel entered \nhis appearance on July 25, 2023. \n In correspondence to the Commission received on April 7, 2023,  Claimant \nwrote: \n \nTo whom it may concern: \n \nMay  I  please  request  a  hearing  on  the  denial  of  my  workers[’] \ncompensation.    For  surgery  needed  to  fix  my  hands,  and  the \nhorrible pain.  I appreciate the time and assistance. \n \nSincerely, \n \nAmber Lynn Potts \nClaim # H301500 \n \nThe  matter  was  assigned  to  the  Legal  Advisor  Division.    But  after  no  resolution \nwas  reached  during  the  Legal  Advisor  conference,  the  file  was  returned  to  the \nClerk of the Commission for reassignment to an administrative law judge. \n Upon  assignment  to  Administrative Law  Judge  Chandra Black  on July  28, \n2023,  her  office  issued  prehearing  questionnaires  to  the  parties.    However, \nClaimant failed to file a questionnaire response.  For that reason, Judge Black on \nAugust 18, 2023, returned the file to the Commission’s general files. \n The  record  reflects  that  no  further  action  was  taken  on  the  case  until \nOctober  23,  2023,  when  Respondents  filed  the  instant  Motion  to  Dismiss  under \n\nPOTTS – H301500 \n3 \n \nArk. Code Ann. § 11-9-702 (Repl. 2012) and AWCC R. 099.13, along with a brief \nin support thereof.  On October 25, 2023, Judge Black wrote Claimant, requesting \na response to the motion within 20 days.  This correspondence was sent by both \ncertified and first-class mail, but my review shows that there was a typographical \nerror in the address used; while Claimant’s address in Hope, Arkansas is listed in \nthe  file  and  on  her  return  envelope  containing  the  hearing  request  as “167 \nHempstead  15,”  the  letters  were  mailed to “167  Hempstead  16.”     Unsurprisingly, \nthe United States Postal Service returned both letters with the notation “NO SUCH \nNUMBER”; and no response from Claimant was forthcoming. \n On November 14, 2023, a hearing on Respondents’ motion was scheduled \nfor December 13, 2023, at 10:3 0 a.m. at the Commission.  The Notice of Hearing \nwas sent to Claimant by certified and first-class mail to the correct address in this \ninstance.  Claimant signed for the certified letter on November 28, 2023; and  the \nfirst-class letter was never returned. \n The  hearing  proceeded  as  scheduled  on  December 13,  2023.    Claimant \nfailed to appear at the hearing.  But Respondents appeared through counsel and \nargued for dismissal under, inter alia, Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nPOTTS – H301500 \n4 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the   Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute her claim. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n No  Form AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing  a \n“formal  claim.”   See  Yearwood  v.  Wal-Mart  Stores,  Inc.,  2003  AR Wrk.  Comp. \nLEXIS 739,  Claim  No.  F201311  (Full  Commission  Opinion  filed  June  17,  2003).  \nSee  also Sinclair  v.  Magnolia  Hospital,  1998  AR Wrk.  Comp.  LEXIS 786,  Claim \nNo.  E703502  (Full  Commission  Opinion filed  December  22,  1998)(a  claim  is \n“typically” filed via a Form AR-C).  While a Form AR-1 was filed in this case, that \ndoes not suffice to instigate a claim.  Id. \n\nPOTTS – H301500 \n5 \n \n I  recognize,  however,  that  other  means  exist  to  file  a  claim  for  initial \nbenefits  other  than  a  Form  AR-C.    In Downing  v.  Univ.  of  Ark.,  1999  AR Work. \nComp. LEXIS 979, Claim No. E209360 (Full Commission Opinion filed March 16, \n1999), the Commission stated: \nWhile   it   appears   that   no   court   has   addressed   the   minimum \nrequirements  under  Arkansas  law  to  state  an  adequate “petition for \nreview”, in Cook v. Southwestern Bell Telephone Company, 21 Ark. \nApp.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of  Appeals \ndiscussed the minimum requirements necessary for correspondence \nto the Commission to constitute a claim for additional compensation \nfor  the  purposes  of  tolling  the  applicable  Statute  of  Limitations.    In \nthat case, the Court held that an attorney's correspondence notifying \nthe  Commission  that  he  has  been employed to  assist  a  claimant  in \nconnection  with  unpaid  benefits  is  sufficient  to  state  a  claim  for \nadditional  compensation  where  the  correspondence  also  lists  the \nclaimant's  name,  the  employer's  name  and  the  WCC  file  number. \nId., See also, Garrett v. Sears Roebuck and Company, 43 Ark. App. \n37, 858 S.W.2d 146 (1993).  Moreover, we have interpreted Cook as \nrequiring  that  correspondence  intended  as  a  claim  for  additional \nbenefits  (1)  identify  the  claimant,  (2)  indicate  that  a  compensable \ninjury  has  occurred,  and  (3)  convey  the  idea  that  compensation  is \nexpected. \n \n(Citations omitted) \n My  review  of  the  Commission’s  file  discloses  a  document  sufficient  to \nconstitute a filing of a claim for initial benefits under the factors cited above.  That \ndocument is Claimant’s April 7, 2023, hearing request. \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has  taken  no \naction in pursuit of her claim since making the hearing request over eight months \nago.  Moreover, she failed to appear on the hearing to argue against dismissal of \nthe  claim,  despite  the  evidence  clearly  showing  that  both  she  and  Respondents \n\nPOTTS – H301500 \n6 \n \nwere  provided  reasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing \nthereon.    Thus,  the  evidence  preponderates  that  dismissal  is  warranted  under \nRule 13.  Because of this finding, it is unnecessary to address the applicability of \nArk. Code Ann. § 11-9-702(a)(4) (Repl. 2012). \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co.,  2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).  Respondents  at  the  hearing  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of this claim should be and hereby is entered without prejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nPOTTS – H301500 \n7 \n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":9669,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301500 AMBER POTTS, EMPLOYEE CLAIMANT WAL-MART ASSOCIATES, INC., SELF-INSURED EMPLOYER RESPONDENT WAL-MART CLAIMS SVCS., THIRD PARTY ADMR. RESPONDENT OPINION FILED DECEMBER 14, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on December ...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:59:30.377Z"},{"id":"alj-H208633-2023-12-14","awccNumber":"H208633","decisionDate":"2023-12-14","decisionYear":2023,"opinionType":"alj","claimantName":"Belinda Prichard","employerName":"Shearers Foods LLC,","title":"PRICHARD VS. SHEARERS FOODS LLC, AWCC# H208633 DECEMBER 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Prichard_Belinda_H208633_20231214.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Prichard_Belinda_H208633_20231214.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208633 \n \nBELINDA PRICHARD, EMPLOYEE CLAIMANT \n \nSHEARERS FOODS LLC, \nEMPLOYER RESPONDENT \n \nFARMINGTON CASUALTY CO.,  \nINSURANCE CARRIER                       RESPONDENT \n \n \nOPINION FILED DECEMBER 14, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  October  27,  2023,  in \nJonesboro, Arkansas. \n \nClaimant  was  represented  by  Mr.  Daniel A.  Webb,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nRespondents were represented by Ms. Amy C. Markham, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A full  hearing  was  held  on  this  claim  on  October 27,  2023.    Claimant  was \nrepresented   by   Mr.   Daniel   A.   Webb,   Attorney   at   Law,   Little   Rock,   Arkansas; \nRespondents were represented by  Ms. Amy C. Markham, Attorney at Law, Little Rock, \nArkansas. \nSTIPULATIONS \n By  agreement  of  the  parties,  the  stipulations  applicable  to  this  claim are  as \nfollows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n \n2. An   employer/employee/carrier   relationship   existed   among   the \nparties on December 5, 2022, when Claimant alleges she sustained \na compensable injury to her left shoulder. \n \n\nPRICHARD H208633 \n \n2 \n \n3. Respondents have controverted this claim in its entirety. \n \n4. The  parties  will  stipulate  to  Claimants  average  weekly  wage  and \ncompensation rates on or before the hearing date.\n1\n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether  Claimant  sustained  a  compensable  injury  to  her  left  shoulder  by \nspecific incident. \n  \n2.  Whether  Claimant  is  entitled  to  any  reasonable  and  necessary  medical \ntreatment, including mileage and out-of-pocket expenses. \n \n3.  Whether   Claimant   is   entitled   to   temporary   total   disability   benefits   from \nDecember 6, 2022, to a date yet to be determined. \n \n4.  Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s Contentions:  The  Claimant  injured  her  left  shoulder  on  December  5, \n2022,  while  working  for  Respondent/Employer.  The  Claimant  should  receive  benefits \nrelated  to  the  injury  including  medical  expense  payments,  a  period  of  temporary  total \ndisability benefits, and an attorney’s fee. All other issues are reserved.  \nRespondent’s Contentions:  The  Claimant  did  not  receive  an  injury  per  statutory \ndefinition\n2\n. \n \n \n \n1\n The parties did not stipulate to the average weekly wage by the hearing date. As a \nresult, this stipulation was withdrawn. \n2\n During the full hearing, Respondents’ counsel moved to amend their contentions. \nRespondents now concede that Claimant’s left shoulder rotator cuff injury is an objective \nfinding. I have granted Respondents’ motion. Respondents still assert that Claimant’s injury did \nnot occur by a specific incident during the course and scope of employment. \n\nPRICHARD H208633 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  non-medical \ndocuments,  and  other  matters  properly  before  the  Commission,   and  having  the \nopportunity  to  hear  the  testimony  of  Claimant  and  observe  her  demeanor,  I  hereby \nmake the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012):  The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n1.  The stipulations set forth above are reasonable and are hereby accepted.  \n \n2.  The Claimant has not proven by the preponderance of the evidence that  she \nsustained  a  compensable  left  rotator  cuff  injury,  by  specific  incident,  during \nthe course and scope of employment on December 5, 2022. \n  \n3.  Based on my finding that Claimant did not sustain a compensable injury, the \nremaining issues of whether Claimant is entitled to reasonable and necessary \nmedical  treatment,  temporary  total  disability  benefits,  and  a  controverted \nattorney’s fee are moot and will not be addressed in this opinion. \n \n \nCASE IN CHIEF \nSummary of Evidence \n The  record  consisted  of Claimant’s Exhibit 1,  Medical  Records,  that  consists  of \n43   pages,   Respondents’   Exhibit   1,   Medical   Records,   that   consist   of   16   pages, \nRespondents’ Exhibit 2, Non-Medical Documents, consisting of 255 pages, Commission \nExhibit   1,   Pre-Hearing   Order, that   consists   of   5   pages, and Claimant’s  and \nRespondents’ blue-backed post-hearing briefs. The Claimant, Brenda Prichard, was the \nsole witness in the full hearing.  \nClaimant  was  a  processor  of  chips  for  the  Respondent/Employer.  She  went  to \nwork assigned to line six but was told to move to line two. The sheeter pans on line two \n\nPRICHARD H208633 \n \n4 \n \nwere  not  clean  and  were  full  of  masa.  Claimant  carried  the  pans  of  masa, weighing \napproximately  fifteen  pounds,  to  the  trash.  She  testified  that  she  almost dropped  the \npans  and  had  to  readjust  her  hands,  to  get  a  better  grip  on  the  pans.  Claimant  had \ntaken  about  15  minutes  to  clean  the  masa  pans.  Her  testimony  was  that  she  felt fine \nafter cleaning the masa pans. She added that she felt no strains or pains after cleaning \nthe pans.  \nPhilip  Weiss,  who  oversaw  line  one, asked Claimant to  watch  over  his  line  until \nhe came back from the restroom. The Claimant went to line one, grabbed the radio, and \nclimbed three or four steps that allowed her to watch over the line. After a few minutes, \nshe  walked  down  the  steps,  holding  the  handrail,  when  she  heard  a  pop  in  her  left \nshoulder.  She  had  walked  down  the  stairs  for  the  purpose  of  waiting  on  her  fellow \nemployee, Mr.  Weiss,  who  remained  gone  for  10  to  15  minutes.  The  Claimant  also \nstated  she  had  to  make  sure  line  one  had  corn  while  she  waited  on  her  co-worker. \nWhen her co-worker returned, Claimant then reported her injury to management.  \nAdjudication \nA. Whether Claimant sustained a compensable left shoulder injury. \n \nArkansas  Code  Annotated  §  11-9-102(4)(A)(i)  (Repl.  2012),  which  I  find  applies \nto the analysis of Claimant’s alleged injury, defines “compensable injury”: \n(i)  An  accidental  injury  causing  internal  or  external  physical  harm  to  the \nbody  .  .  .  arising  out  of  and  in  the  course  of  employment  and  which \nrequires  medical  services  or  results  in  disability  or  death.    An  injury  is \n“accidental” only if it is caused by a specific incident and is identifiable by \ntime and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \n\nPRICHARD H208633 \n \n5 \n \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe element “arising out of . . . [the] employment” relates to the causal connection \nbetween the claimant’s injury and his or her employment.  City  of El  Dorado  v.  Sartor, \n21  Ark.  App.  143,  729  S.W.2d  430  (1987).    An  injury  arises  out  of  a  claimant’s \nemployment  “when  a  causal  connection  between  work  conditions  and  the injury  is \napparent to the rational mind.”  Id. \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.  Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \nI  do  find,  as  Respondents  conceded  at  the  hearing,  that  the  Claimant  has \nobjective  findings  of  a  left  shoulder  rotator  cuff  injury.  I  further  find  that  this  shoulder \ninjury  manifested  itself  while  Claimant  was  at  her  place  of  employment  during  working \n\nPRICHARD H208633 \n \n6 \n \nhours.  However,  the  key  inquiry  here  is  whether  this  injury  occurred  by  a  specific \nincident during the course and scope of her employment. This is the Claimant’s burden. \nThe  Claimant  has  not  pointed  to  a  specific  work-related  incident  as  the reason  for her \nleft shoulder injury. Rather, her testimony has been inconsistent as to the cause of her \ninjury.  \nFor example, Claimant initially signed a team member statement on December 5, \n2022,  the date  of  her  injury,  stating that no work-related  condition  caused  the  injury  to \nher  left  shoulder,  nor  could  she  explain  it. See  Respondents’  Exhibit  2,  page  103.  I \ncredit this statement. She maintained that point of view until she was made aware that \nher claim was denied since her injury was not connected to her work. The Claimant later \nmodified her answer and now believes it was the weight of the masa pans from line two \nthat caused her injury.  When further pressed at the hearing about the masa  pans, she \ntestified that she felt fine after dumping the masa in the trash. She later admitted in her \ntestimony  that  she  was  using  deductive  reasoning  as  her  bases  for  believing the  near \ndrop of  the  masa  pans,  due  to  their  weight,  had  caused  her  injury.  The  Claimant  also \ntestified  that  she doesn’t believe walking down the stairs had anything to do with her \ninjury when she heard the pop.  \nIt is the Claimant’s burden to prove she was injured by a specific incident,  and \nshe has not satisfied that burden. I’m left with speculation and conjecture as to whether \nthe  dumping  of  the  masa  pans  was  the  specific  incident  that  caused  her  injury.  But \nspeculation  and  conjecture  cannot  serve  as  a  substitute  for  proof. Dena  Construction \nCo.  v.  Herdon,  264  Ark.  791,  796,  575  S.W.2d  155  (1979).  Thus,  I  find  that  Claimant \nhas  not  proven  by  the  preponderance  of  the  evidence  that  she  has  sustained  a \n\nPRICHARD H208633 \n \n7 \n \ncompensable  left  shoulder  injury,  by  specific  incident,  during  the  course  and  scope  of \nher employment on December 5, 2022. \nB. Remaining Issues  \nDue  to  not  finding  the  left  shoulder  injury  compensable,  I  further  find  the \nremaining  issues  of  whether  Claimant  is  entitled  to  any  reasonable  and  necessary \nmedical treatment, temporary total disability benefits, and a controverted attorney’s fee \nare moot and will not be addressed in this opinion.  \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed.  \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","textLength":11840,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208633 BELINDA PRICHARD, EMPLOYEE CLAIMANT SHEARERS FOODS LLC, EMPLOYER RESPONDENT FARMINGTON CASUALTY CO., INSURANCE CARRIER RESPONDENT OPINION FILED DECEMBER 14, 2023 Hearing before Administrative Law Judge Steven Porch on October 27, 2023, in Jonesboro, A...","outcome":"denied","outcomeKeywords":["modified:1","dismissed:1","denied:2"],"injuryKeywords":["shoulder","rotator cuff","back"],"fetchedAt":"2026-05-19T22:59:32.448Z"},{"id":"alj-H301866-2023-12-14","awccNumber":"H301866","decisionDate":"2023-12-14","decisionYear":2023,"opinionType":"alj","claimantName":"Christopher Stevens","employerName":"Area Agency On Aging, West Center","title":"STEVENS VS. AREA AGENCY ON AGING, WEST CENTER AWCC# H301866 DECEMBER 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/STEVENS_CHRISTOPHER_H301866_20231214.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STEVENS_CHRISTOPHER_H301866_20231214.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301866 \n \nCHRISTOPHER L. STEVENS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nAREA AGENCY ON AGING, WEST CENTER, \nEMPLOYER                                                                                                         RESPONDENT  \n \nAGING SERVICES FUND/ \nRISK MG’T RESOURCES, INC., \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION FILED DECEMBER 14, 2023, \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \nHearing   conducted   on   Wednesday,   December   13,   2023, before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in \nLittle Rock, Pulaski County, Arkansas. \n \nThe  claimant,  Mr.  Christopher  L.  Stevens,  pro  se,  of  Hot  Springs,  Garland  County,  Arkansas, \nfailed and/or refused to appear at the hearing. \n \nThe  respondents  were  represented  by  the  Honorable  Melissa  Wood,  Worley,  Wood  &  Parrish, \nLittle Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on Wednesday, December 13, 2023, to determine whether this \nclaim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) \n(2023 Lexis Replacement) and Commission Rule 099.13 (2023 Lexis Repl.). \n The  respondents  filed  a  motion  to  dismiss  with  the  Commission  on  October  24,  2023, \nrequesting  this  claim  be  dismissed  without  prejudice  for  lack  of  prosecution.  (Respondents’ \nExhibit 1). In accordance with applicable Arkansas law the claimant was mailed due and proper \nlegal notice of the respondents’ motion to dismiss, as well as a copy of the hearing notice at his \naddresses of record via the United States Postal Service (USPS), First Class Certified Mail, Return \nReceipt requested. Thereafter, the claimant never responded to the subject motion to dismiss; he \n\nChristopher L. Stevens, AWCC No. H301866 \n2 \n \ndid not request a hearing, and he did not contact the Commission by any means of communication, \nnor did he cause anyone to respond to the motion on his behalf. Furthermore, the claimant failed \nand/or  refused  to  appear  at  the  subject  hearing,  and  he  failed  and/or  refused  to  cause  anyone  to \nappear on his behalf at the subject hearing.  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and/or attached thereto. (RX 1). \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim as required by the applicable statute and Commission rule.  \n Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law, \nrepresentations of the respondents’ highly credible counsel, and other relevant matters of record, I \nhereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1.   The Commission has jurisdiction of this claim. \n \n2.   After having been mailed due and legal notice of the respondents’ motion \n      to dismiss, as well as due and legal notice of the subject hearing, the \n      claimant neither responded to the motion in any way whatsoever, nor did he \n      cause anyone to respond to the subject motion on his behalf. In addition, the \n      claimant failed and/or refused to appear at the hearing, nor did he cause \n      anyone to appear at the hearing on his behalf. Therefore, he has waived his \n      right to a hearing on the respondents’ motion to dismiss.  \n \n3.   Moreover, the claimant has failed to prosecute his claim in any way \n      whatsoever, as to date he has neither requested a hearing nor has he \n\nChristopher L. Stevens, AWCC No. H301866 \n3 \n \n      taken any action(s) whatsoever to pursue and/or to prosecute his claim. \n   \n4.   Therefore, the respondents’ motion to dismiss without prejudice filed with \n                                    the Commission on October 24, 2023, should be and hereby is GRANTED \n                                    pursuant to both Ark. Code Ann. Section 11-9-702(a)(4) and Commission \n                                    Rule 099.13. \n \n  Nothing in this opinion shall prevent or be  construed to prevent the claimant or anyone \nacting with his authority and on his behalf from re-filing this claim so long as it is re-filed within \nthe applicable deadlines specifically set forth in the Act. \n The  respondents  shall pay  the  court  reporter’s  invoice  within  twenty  (20)  days  of  their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5594,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301866 CHRISTOPHER L. STEVENS, EMPLOYEE CLAIMANT AREA AGENCY ON AGING, WEST CENTER, EMPLOYER RESPONDENT AGING SERVICES FUND/ RISK MG’T RESOURCES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 14, 2023, GRANTING RESPONDENTS’ MOTION TO DISMIS...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:59:34.506Z"},{"id":"alj-H301483-2023-12-13","awccNumber":"H301483","decisionDate":"2023-12-13","decisionYear":2023,"opinionType":"alj","claimantName":"Elias Chavez","employerName":"Thompson Construction Group, Inc","title":"CHAVEZ VS. THOMPSON CONSTRUCTION GROUP, INC. AWCC# H301483DECEMBER 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Chavez_Elias_H301483_20231213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Chavez_Elias_H301483_20231213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301483 \n \nELIAS CHAVEZ, EMPLOYEE CLAIMANT \n \nTHOMPSON CONSTRUCTION GROUP, INC., \nEMPLOYER RESPONDENT \n \nZURICH AMERICAN INSURANCE CO.,  \nCARRIER                       RESPONDENT \n \n \nAMENDED OPINION FILED DECEMBER 13, 2023 \n \nHearing before Administrative Law Judge Steven Porch on October 6, 2023, in Marion, \nArkansas. \n \nClaimant was represented by Mr. Tanner Thomas, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  were  represented  by  Mr.  Jarrod  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A full hearing was held on this claim on October 6, 2023. Claimant was represented \nby  Mr.  Tanner  Thomas,  Attorney  at  Law,  Little  Rock,  Arkansas;  Respondents  were \nrepresented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n \n2. An   employer/employee/carrier   relationship   existed   among   the \nparties on September 9, 2022, when Claimant allegedly sustained a \ncompensable injury to his left hip. \n \n3. Respondents  initially accepted  this  claim  as  medical-only  and  paid \nsome benefits\n1\n.  \n \n1\n Respondents denied compensability of the hip by letter dated September 29, 2023. This \nis in evidence as Respondents’ Exhibit 3. \n\nCHAVEZ H301483 \n \n2 \n \n \n 4.  The parties  will  stipulate  to  Claimant’s  average  weekly  wage  and \ncompensation rates on or before the hearing date.\n2\n \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether Claimant sustained a compensable injury to his left hip. \n  \n2.  Whether  Claimant  is  entitled  to  any  additional  reasonable  and  necessary \nmedical treatment rendered after January of 2023. \n \n3.  Whether  Claimant  is  entitled  to  additional  temporary  total  disability  benefits \nfrom September 10, 2022, to a date yet to be determined. \n \n4.  Whether  Claimant  is  entitled  to  an  impairment  rating  and  permanent  partial \ndisability benefits. \n \n5.  Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s Contentions: On September 9, 2022, Claimant, in the course and scope \nof employment with the respondent-employer, was carrying a rail  when he fell from an \nelevated section of the construction site, sustaining a left hip injury.  \nThe Respondent took two months of the Claimant complaining about pain to send \nhim to a doctor, but initially accepted the injury as compensable. Claimant initially was \nprovided treatment from Dr. Sherita Willis, where his complaints were of left hip and low \nback  pain.  Claimant  was  allowed  to  return  to  Dr.  Willis  in  January  of  2023,  where  she \ncited  that  the  Claimant’s  complaints  of  pain  were  chronic  in  nature.  Respondents  then \n \n2\n The Claimant and the Respondent did not stipulate to the average weekly wage and \ncompensation rates at the full hearing. Both parties verbally assured the Commission that they \ncan stipulate to the compensation rates should an award for indemnity benefits be granted. \n\nCHAVEZ H301483 \n \n3 \n \ndenied his claim. \nClaimant was then forced to treat on his own and went to Dr. Rickey Carson, where \nhe complained of low back and left hip pain and was referred to Dr. John Rocco Rodney. \nClaimant underwent an MRI which revealed tears of his bilateral hamstring tendons, the \nleft gluteus minimus and medius tendons, and at the right insertion of the gluteus medius \ntendons. \nClaimant contends that he suffered a compensable injury at work, that he is entitled \nto temporary total disability and medical benefits, and that his attorney is entitled to an \nattorney’s fee. All other issues are reserved. \nRespondent’s  Contentions:  Respondents  contend  that  they  had  accepted  this \nclaim as medical-only. The claimant continued to work for Respondent/Employer through \nMarch  19,  2023,  when  he  was  terminated,  as  is  evidenced  by  the  attached  wage \ninformation. The medical documentation does not support an off-work status beyond that. \nIn  light  of  this,  it  is  Respondents’  position  Claimant  is  not  entitled  to  temporary  total \ndisability benefits. Additionally, the medical records indicate the claimant does not have \nany acute objective findings to support an injury on September 9, 2022. The claimant has \nreceived unauthorized medical treatment with Drs. Rodney and Carson.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  non-medical \ndocuments,  post hearing briefs from  the  parties,  and  other matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1.  The Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim.  \n\nCHAVEZ H301483 \n \n4 \n \n \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  Claimant has proven by the preponderance of the evidence that he sustained \na compensable injury to his left hip on September 9, 2022.  \n \n4.   Claimant has proven by the preponderance of the evidence that he is entitled \nto  reasonable  and  necessary  medical  treatment  in  connection  with  his \ncompensable left hip injury, however he did not prove that the alleged physical \ntherapy  he  underwent  in  Maryland  was  reasonable  and  necessary.  Thus, all \nmedical treatment under Claimant’s Exhibit 1, with the exception of the alleged \nphysical therapy and any treatment for the June 2, 2023, motor vehicle incident \nis reasonable and necessary. \n \n5.   Claimant has  not  proven  by  the  preponderance  of  the  evidence  that  he  is \nentitled to temporary total disability benefits for any period of time. \n \n6.   Because  the  issue  regarding  whether  Claimant  is  entitled  to  an  impairment \nrating  and  permanent  partial  disability  benefits  is  not  yet  ripe,  it  will  be \nconsidered reserved. \n \n7.  Claimant has not proven by the preponderance of the evidence that his attorney \nis entitled to a controverted attorney’s fee. \n \nCASE IN CHIEF \nSummary of Evidence \n The sole witness at the hearing was the Claimant, Elias Chavez. The witness had \nthe  benefit  of  an  interpreter  to  translate  the  proceedings  from  English  to  Spanish.  In \naddition to admitting the pre-hearing order and Claimant’s and Respondents’ post-hearing \nbriefs that were blue-backed, I also have admitted the following into evidence in this case: \nClaimant’s Exhibit 1, a comprehensive exhibit containing  67 pages of  medical records, \nRespondents’ Exhibit 1, a 51-page compilation of medical records; Respondents’ Exhibit \n2, a 16 page non-medical document; and Respondents’ Exhibit 3, a 1 page letter dated \nSeptember 29, 2023. \n \n\nCHAVEZ H301483 \n \n5 \n \nBackground \nClaimant  was  a  rod  buster  for  Respondent/Employer.  A  rod  buster  is  one  who \nconstructs concrete foundations at construction sites. Claimant slipped on some mud on \nthe ground and fell while carrying rebar, injuring the left side of his hip on September 9, \n2022. This occurred during the course and scope of his employment. Claimant reported \nthis incident the same day and was sent home. He did not receive medical treatment for \nhis injury until November 22, 2022, 74 days after the incident. Dr. Sherita Willis noted that \nClaimant had left hip tenderness and limited range of motion and prescribed him Tylenol \nand  Ibuprofen for his  injury. He  was  later  ordered  an  MRI  by  Dr.  John  Rocco  Rodney. \nClaimant received an MRI on March 27, 2023, in Baltimore, Maryland. The physicians at \nCommunity Radiology Associates found a “...2.) Low-grade partial- thickness tears at the \norigins  of  bilateral  hamstring  tendons,  3.)  Low-  grade  partial-  thickness  tears  at  the \ninsertions  of  the  left  gluteus  minimus  and  medius  tendons,  4.)  Low-grade  partial- \nthickness tears at insertion of the right gluteus medius tendon.”  CL Exhibit 1 pages 19-\n21. \nRespondents  initially  accepted  this  claim  as  a  medical-only  one  and  paid  some \nbenefits. Claimant,    while    receiving    these    benefits,    continued    to    work    for \nRespondent/Employer  until  March  21,  2023. He  performed  light  duty  work  such  as \nworking with equipment that bends rods, cut rods, or manually wrap bands around rods. \nWhen these jobs became difficult, he was allowed to pick up scrap. He continued to get \npaid  his  regular  wage.  Claimant  quit  his  job  on  March  21,  2023,  because  he had \nunbearable  pain. He  moved  to  Silver  Springs,  Maryland,  and  was  not  getting  any \nrehabilitation  treatment  for  his  work-related  hip  injury.  The  reason  for  his  not  getting \n\nCHAVEZ H301483 \n \n6 \n \ncontinued rehab treatment for his hip was a lack of insurance. Claimant was questioned \nas to why he did not request workers’ compensation to pay for his rehabilitation. Claimant \nstated  he  signed  some  papers  and  returned  them  to  Respondent  or  the  Commission. \nSince  then,  he  has  not  heard  anything  from  Respondent  or  the  Commission  about \ncontinued treatment on his hip. Moreover, the Claimant could not state what papers he \nsigned nor when they were sent.  \nOn June 2, 2023, Claimant, while walking, was struck on the left side of his hip by \nan automobile and went to the hospital. Claimant  suffered a left leg femur fracture and \nlater  needed  rehab  for  his  left  hip  resulting  from  the  vehicle  incident.  Claimant  further \ntestified that he received Maryland state health insurance six weeks before the vehicle \nincident. No proof was provided proving that Claimant acquired insurance in Maryland. \nWhen testifying about his rehabilitation, Claimant stated he was getting treatment down \nthe outer side of his left leg for the work-related injury. On the other hand, Claimant stated \nhe  was  getting  rehab  treatment  down  the  front  of  his  left  leg  due  to  the  motor  vehicle \nincident.  He  added  that  he  was getting  rehab  treatment  for  his  hip  a  month and  a  half \nbefore the motor vehicle injury. Claimant testified he was getting rehabilitation treatment \nfor the left hip due to both the work injury and the motor vehicle injury. However, the focus \nof treatment for each incident were allegedly in different areas of the left hip.  \nAdjudication \nA. Whether Claimant sustained a compensable left hip injury. \n \nArkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \n\nCHAVEZ H301483 \n \n7 \n \nmedical services or results in disability or death.  An injury is “accidental” \nonly if it is caused by a specific incident and is identifiable by time and place \nof occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe  element  “arising  out  of  .  .  .  [the]  employment”  relates  to  the  causal  connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when  a  causal  connection  between  work  conditions  and  the  injury  is  apparent  to  the \nrational mind.”  Id. \n If  the  Claimant  fails  to  establish  by a  preponderance  of  the  evidence any  of the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.  Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n Claimant’s  testimony  is  never  considered  uncontroverted.   Nix  v.  Wilson  World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \n\nCHAVEZ H301483 \n \n8 \n \nany other witness but may accept and translate into findings of fact only those portions of \nthe testimony that it deems worthy of belief.  Id. \nClaimant has satisfied his burden with objective findings as to his work-related left \nhip  injury  on  September  9,  2022.  The  Claimant  sustained  internal  harm  to his  body. \nClaimant had an MRI of his left hip in Baltimore, Maryland. The physicians at Community \nRadiology Associates found a “...2.) Low-grade partial- thickness tears at the origins of \nbilateral hamstring tendons, 3.) Low- grade partial- thickness tears at the insertions of the \nleft  gluteus  minimus  and  medius  tendons,  4.)  Low-grade  partial-  thickness  tears  at \ninsertion of the right gluteus medius tendon.” CL Exhibit 1 pages 19-21. I credit the MRI \nreport for Claimant’s March 27, 2023, exam date created by the Community Radiology \nAssociates. This  injury  occurred  by a  specific  incident  during  the  scope  and  course  of \nClaimant’s employment when he slipped on some mud on the ground while carrying rebar \nfor the Respondent/Employer. He also needed medical treatment and received an MRI. \nThus,  I  find  by  the  preponderance  of  the  evidence  that  the  Claimant sustained  a \ncompensable left hip injury during the course and scope of his employment on September \n9, 2022.  \n \nB. Whether Claimant is entitled to any additional reasonable and necessary \nmedical treatment rendered after January of 2023. \n \nArkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states  that  an \nemployer  shall  provide  for  an  injured  employee  such  medical  treatment  as  may be \nnecessary in connection with the injury received by the employee.  Wal-Mart Stores, Inc. \nv. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only for \nsuch treatment and services as are deemed necessary for the treatment of the Claimant’s \n\nCHAVEZ H301483 \n \n9 \n \ninjuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  The Claimant \nmust prove by a preponderance of the evidence that medical treatment is reasonable and \nnecessary for the treatment of a compensable injury.  Brown, supra; Geo Specialty Chem. \nv. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).  What constitutes reasonable and \nnecessary   medical   treatment   is   a  question   of  fact  for   the   Commission.   White \nConsolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As the Arkansas Court of Appeals has held, a claimant may be entitled to additional \ntreatment  even  after  the  healing  period  has  ended,  if  said  treatment  is  geared  toward \nmanagement of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 \n(1983).  Such services can include those for the purpose of diagnosing the nature and \nextent  of  the  compensable  injury;  reducing  or  alleviating  symptoms  resulting  from  the \ncompensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing  further \ndeterioration of the damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \nClaimant  is  entitled  to  reasonable  and  necessary  medical  treatment  for  his \ncompensable  left  hip  injury.  I  find  by  the  preponderance  of  the  evidence that  all  the \nmedical  treatment  paid  for  by  the  Respondents  for  the  treatment  of  Claimant’s  work-\nrelated left hip injury was reasonable and necessary, including the x-rays and an MRI. \nClaimant testified that he received physical rehabilitation services for his work-related left \nhip  injury  in  Maryland  approximately  six  weeks  before his  June  2, 2023,  motor  vehicle \nincident. I don’t credit this testimony. I don’t have any physical therapy records verifying \n\nCHAVEZ H301483 \n \n10 \n \nthe purpose of this treatment or that the treatment had actually taken place. There is no \nreason, and no reason was given why the physical therapy records were not provided to \nthe  Respondents  and  the  Commission  given  this  full  hearing  had  taken  place  months \nafter the alleged treatment. Therefore, I cannot find by the preponderance of the evidence \nthat this particular treatment was reasonable and necessary.  \nClaimant has mentioned no other treatment for his left hip work-related injury. As \nfor any treatment in evidence that arose out of the June 2, 2023, motor vehicle accident, \nthe  preponderance  of  the  evidence  establishes  that  it  was  not  causally  related  to  his \ncompensable injury, and thus is not the responsibility of Respondents. \nC. Whether Claimant is entitled to temporary total benefits from September 10, \n2022, to a date yet to be determined. \n \nTemporary total disability for unscheduled injuries is that period within the healing \nperiod in which the Claimant suffers total incapacity to earn wages. Ark. State Highway \nand Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing \nperiod ends when the underlying condition causing the disability has become stable and \nnothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. \nParker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  Claimant  continued  to  work  for  the \nRespondent/Employer until March 21, 2023. His attorney stated in his post-hearing brief \nthat Claimant quit his job due to unbearable pain. Claimant was on light duty when he quit \nworking for Respondent/Employer and moved to his home state of Maryland. He quit his \njob voluntarily and without a doctor’s orders. I don’t credit Claimant’s reason for quitting \nhis  job  as  being  due  to  unbearable  pain.  This  was  never  brought  out  in  his  sworn \ntestimony. Though I find he did voluntarily quit his job, I find that he did so to move to his \nhome state of Maryland. Claimant has the responsibility of proving that he suffered a total \n\nCHAVEZ H301483 \n \n11 \n \nincapacity to earn wages. No credible evidence was presented showing that the Claimant \nhad indeed suffered a total incapacity to earn wages due to his work-related injury. Thus, \nI find that he did not prove by the preponderance of the evidence that he is entitled to \ntemporary total disability benefits for any period of time. \nD. Whether Claimant is entitled to an impairment rating and permanent partial \ndisability benefits. \nPermanent impairment, generally a medical condition, is any permanent functional \nor anatomical loss remaining after the healing period has been reached.  Ouachita Marine \nv. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969).  Pursuant to Ark. Code Ann. § 11-9-\n522(g) (Repl. 2012), the Commission adopted the Fourth Edition of the AMA Guides as \nan impairment rating guide.  See AWCC R. 099.34.  A determination of the existence or \nextent of physical impairment must be supported by objective and measurable physical \nor mental findings.  Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 2012).  Permanent benefits \nare to be awarded only following a determination that the compensable injury is the major \ncause of the disability or impairment.  Id. § 11-9-102(F)(ii).  “Major cause” is defined as \n“more  than  fifty  percent  (50%)  of  the  cause,”  and  a  finding  of  major  cause  must  be \nestablished by a preponderance of the evidence.  Id. § 11-9-102(14).  Any medical opinion \nmust be stated within a reasonable degree of medical certainty.  Id. § 11-9-102(16). \nThe credible evidence does not establish that Claimant has yet reached the end \nof his healing period regarding his compensable left hip injury. For that reason, the issue \nis not yet ripe. Instead, it will be considered reserved. \nE. Whether Claimant is entitled to a controverted attorney’s fee. \n \nOne of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, \n\nCHAVEZ H301483 \n \n12 \n \n745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat a claim has been controverted, in whole or in part, the commission shall \ndirect that fees for legal services be paid to the attorney for the claimant as \nfollows:  One-half (½) by the employer or carrier in addition to compensation \nawarded;  and  one-half  (½)  by  the  injured  employee  or  dependents  of  a \ndeceased employee out of compensation payable to them. \n \n Discussion.    Based  on  my  previous  findings  in  this  opinion,  the  evidence \npreponderates that Claimant’s counsel is not entitled to an attorney’s fee as set out above. \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to  pay/furnish  benefits  in  accordance  with  the \nFindings of Fact and Conclusions of Law set forth above.  \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","textLength":22297,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301483 ELIAS CHAVEZ, EMPLOYEE CLAIMANT THOMPSON CONSTRUCTION GROUP, INC., EMPLOYER RESPONDENT ZURICH AMERICAN INSURANCE CO., CARRIER RESPONDENT AMENDED OPINION FILED DECEMBER 13, 2023 Hearing before Administrative Law Judge Steven Porch on October 6, 2023, i...","outcome":"granted","outcomeKeywords":["granted:6","denied:1"],"injuryKeywords":["hip","back","fracture"],"fetchedAt":"2026-05-19T22:59:26.172Z"},{"id":"alj-H108896-2023-12-13","awccNumber":"H108896","decisionDate":"2023-12-13","decisionYear":2023,"opinionType":"alj","claimantName":"Randy Turner","employerName":"Hytrol Conveyor Co., Inc","title":"TURNER VS. HYTROL CONVEYOR CO., INC. AWCC# H108896 DECEMBER 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Turner_Randy_H108896_20231213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Turner_Randy_H108896_20231213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H108896 \n \nRANDY TURNER, EMPLOYEE  CLAIMANT \n \nHYTROL CONVEYOR CO., INC., \nEMPLOYER/SELF INSURED                                                                           RESPONDENT \n \n \nOPINION FILED DECEMBER 13, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  December  8,  2023,  in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented himself Pro Se. \n \nThe  Respondents  were  represented  by  Mr.  Randy  Isbell,  Attorney  at  Law,  Jonesboro, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  motion  to  dismiss  filed  by  the \nRespondent on May 2, 2023, on this accepted claim. A hearing was set on  August 25, \n2023,  in  Jonesboro,  Arkansas.  The  Respondent  subsequently  requested  to  have  the \nmotion held in abeyance after learning that Claimant had an issue with the payment of \nsome of his medical bills. The Commission held the motion in abeyance. Respondent has \nnow requested a hearing on its motion to dismiss, five months later, due to Claimant’s \nlack  of  prosecution.  A hearing on  the  motion  was  conducted on  December  8, 2023,  in \nJonesboro, Arkansas. Claimant was present at the hearing when Respondent’s counsel \nargued the motion.   \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including Commission’s Exhibit 1, six pages \nof non-medical records, and the argument of both the pro se Claimant and Respondents’ \n\nTURNER H108896 \n \n \n2 \ncounsel, I hereby make the following findings of fact and conclusions of law in accordance \nwith Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \n\nTURNER H108896 \n \n \n3 \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n The evidence reflects that Claimant’s injury occurred on October 15, 2021, when \nthe plastic chain he was sitting on broke causing him to fall injuring his right leg and hip. \nRespondents accepted this claim as compensable and paid benefits. Since Claimant filed \nhis Form C on September 16, 2022, this claim has been inactive. \n After  considering  all  of  the  evidence,  I  find  that  Respondents  motion  should  be \ngranted  under  Rule  13.  Claimant  stated  during  the  hearing  that  he  concedes  to  the \ndismissal of his claim because he feels he has been paid all of the benefits that he was \nowed. I  have informed  him that he did not have to concede to the dismissal and could \nrequest  a  full-hearing. Claimant  expressed  that  he  did  not  want  a  full-hearing.  I  further \ninformed him that he is entitled to have an attorney present to represent him in this matter. \nHe stated that he did not want an attorney. I also made the Claimant aware that he could \nspeak with a legal advisor who could guide him on his claim. He stated that he did not \nwant to use a legal advisor. He further advised the Commission that he has no desire in \nprosecuting this claim since he  has  received what he believes he is owed. Thus, I find \nthat  the  Respondent has  proven  by  the  preponderance of  the  evidence  that  its motion \nshould be granted. \n \n \n\nTURNER H108896 \n \n \n4 \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondent’s Motion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5372,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108896 RANDY TURNER, EMPLOYEE CLAIMANT HYTROL CONVEYOR CO., INC., EMPLOYER/SELF INSURED RESPONDENT OPINION FILED DECEMBER 13, 2023 Hearing before Administrative Law Judge Steven Porch on December 8, 2023, in Jonesboro, Craighead County, Arkansas. Claimant ...","outcome":"granted","outcomeKeywords":["dismissed:2","granted:5"],"injuryKeywords":["hip"],"fetchedAt":"2026-05-19T22:59:28.231Z"},{"id":"alj-H203296-2023-12-12","awccNumber":"H203296","decisionDate":"2023-12-12","decisionYear":2023,"opinionType":"alj","claimantName":"Dustin Bullock","employerName":"Ndx Green Laboratories","title":"BULLOCK VS. NDX GREEN LABORATORIES AWCC# H203296 DECEMBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BULLOCK_DUSTIN_H203296_20231212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BULLOCK_DUSTIN_H203296_20231212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H203296 \n \nDUSTIN BULLOCK, EMPLOYEE        CLAIMANT \n \nNDX GREEN LABORATORIES, EMPLOYER            RESPONDENT \n \nTRAVELERS, CARRIER                RESPONDENT \n            \nOPINION FILED DECEMBER 12, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on December 5, 2023. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Mr. Guy Alton Wade, Attorney-at-\nLaw of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on December 5, 2023, in Little Rock, \nArkansas  on  respondents’   Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant was pro se and failed to appear for the hearing.  The \nclaimant had filed a letter on May 6, 2022, requesting a hearing.  The First Report of Injury \nprovided that the claimant contended he suffered a strain while cleaning a bench.  The \nrespondent’s filed a Form AR-2 on May 5, 2022, contending that there was no injury per \nstatutory  definition.    An  attempt  to  set  up  a  Legal  Advisor  Conference  had  failed.  The \nclaimant failed to respond to the Prehearing Questionnaire and failed to respond to the \ndiscovery propounded by the respondents.  A Motion to Dismiss was filed on August 8, \n2023, requesting that the matter be dismissed due to the lack of prosecution of the claim.  \n\nBULLOCK – H203296 \n \n2 \n \n Appropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was set for December 5, 2023, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nGuy  Alton Wade appeared  on behalf  of  the  respondents and  asked  that  the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondents, I find that this matter should be dismissed without prejudice, for failure to \nprosecute  pursuant  to  Ark.  Code  Ann.  §  11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2676,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203296 DUSTIN BULLOCK, EMPLOYEE CLAIMANT NDX GREEN LABORATORIES, EMPLOYER RESPONDENT TRAVELERS, CARRIER RESPONDENT OPINION FILED DECEMBER 12, 2023 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski County, Arkansas on December...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["strain"],"fetchedAt":"2026-05-19T22:59:15.761Z"},{"id":"alj-H205886-2023-12-12","awccNumber":"H205886","decisionDate":"2023-12-12","decisionYear":2023,"opinionType":"alj","claimantName":"Jessica Hamilton","employerName":"Home Depot","title":"HAMILTON VS. HOME DEPOT AWCC# H205886 DECEMBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HAMILTON_JESSICA_H205886_20231212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HAMILTON_JESSICA_H205886_20231212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H205886 \n \nJESSICA HAMILTON, EMPLOYEE        CLAIMANT \n \nHOME DEPOT, EMPLOYER             RESPONDENT \n \nLIBERTY MUTUAL INS. CO. CARRIER/TPA             RESPONDENT \n            \nOPINION FILED DECEMBER 12, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on December 5, 2023. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Mr. Jason M. Ryburn, Attorney-at-\nLaw of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above styled matter on December 5, 2023, in Little Rock, \nArkansas on respondent’s Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode Annotated   §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct.   The claimant was pro se and failed to appear for the hearing.  The Claimant had \nalleged an injury date of February 11, 2022, and filed a Form AR-C on August 19, 2022, \ncontending that she suffered a contusion while helping pull out a roll of vinyl.  There was \nno  lost  time  involved  with  this  claim  per  the  Form  AR-C.  The  claimant  was  originally \nrepresented  by  Laura Beth  York  who  was  allowed  to  withdraw  by  an  Order  of  the  Full \nCommission dated September 26, 2023.  The claimant had not requested a hearing or \ntaken the necessary steps to go to a hearing.  A Motion to Dismiss was filed on September \n27, 2023, requesting that the matter be dismissed.  \n\nHAMILTON – H205886 \n \n2 \n \n No hearing request or further action had been taken by the claimant in regard to \nthis matter in over six (6) months.  A Motion to Dismiss was filed by the respondents in \nthis matter on September 27, 2023.  \nAppropriate notice was provided to the claimant notifying her that a hearing on the \nMotion to Dismiss, was set for December 5, 2023, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nMr. Jason M. Ryburn appeared on behalf of the respondents and asked that the matter \nbe dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent,  I  find  that  this  matter  should  be  dismissed  without  prejudice,  for failure  to \nprosecute  pursuant  to  Arkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the \nArkansas Workers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2866,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205886 JESSICA HAMILTON, EMPLOYEE CLAIMANT HOME DEPOT, EMPLOYER RESPONDENT LIBERTY MUTUAL INS. CO. CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 12, 2023 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski County, Arkansas on D...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:59:17.819Z"},{"id":"alj-H200299-2023-12-12","awccNumber":"H200299","decisionDate":"2023-12-12","decisionYear":2023,"opinionType":"alj","claimantName":"Rebecca Neal","employerName":"Care Manor Nursing","title":"NEAL VS. CARE MANOR NURSING AWCC# H200299 DECEMBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/NEAL_REBECCA_H200299_20231212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NEAL_REBECCA_H200299_20231212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H200299 \n \nREBECCA L. NEAL, EMPLOYEE         CLAIMANT \n \nCARE MANOR NURSING, EMPLOYER            RESPONDENT  \n \nARKANSAS SELF-INSURANCE TRUST, COMPANY /  \nCANNON COCHRAN MANAGEMENT SERVICES, INC., TPA        RESPONDENT \n  \nOPINION FILED DECEMBER 12, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas, on December 12, 2023. \n \nClaimant is Pro Se and did not appear. \n \nRespondents are represented by Ms. Melissa Wood, Attorney-at-Law of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  December  12,  2023,  in  Little \nRock, Arkansas, on respondents’ Motion to Dismiss for failure to prosecute pursuant to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant contended that she sustained a work-related injury to \nher left arm near her elbow, which resulted in a fracture, due to her having tripped while \nrapidly walking to find a CNA for assistance with a resident on July 15, 2021.  The claimant \nfiled  a  Form  AR-C  on January  11,  2022,  requesting  benefits.    The  respondents filed a \nForm  AR-2  that  provided  it  was  a  compensable  claim,  medical  only.  The  claimant \nobtained a Change of Physician Order on or about January 31, 2022.  The claimant was \nfound to have reached MMI in August of 2022, with a zero percent (0%) impairment rating.  \nNo bona fide request for a hearing has been made within six (6) months of filing the claim.  \n\nNEAL – H200299 \n \n2 \n \nA Motion to Dismiss for failure to prosecute was filed on or about October 16, 2023, and \nthe claimant failed to respond to the Motion.   \nA hearing was set for December 12, 2023, in regard to the Motion to Dismiss.  The \nclaimant failed to appear at the hearing after proper notice.  At the time of the hearing, \nMelissa  Wood  appeared  on  behalf  of  the  respondents  and  asked  that  the  matter  be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondents’ \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould  be  granted  and  this  matter  should  be  dismissed  without  prejudice  pursuant to \nArkansas  Code  Annotated  §11-9-702  and Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act at this time.   \nIT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2838,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H200299 REBECCA L. NEAL, EMPLOYEE CLAIMANT CARE MANOR NURSING, EMPLOYER RESPONDENT ARKANSAS SELF-INSURANCE TRUST, COMPANY / CANNON COCHRAN MANAGEMENT SERVICES, INC., TPA RESPONDENT OPINION FILED DECEMBER 12, 2023 Hearing before Administrative Law Judge Jame...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":["fracture"],"fetchedAt":"2026-05-19T22:59:19.881Z"},{"id":"alj-H207764-2023-12-12","awccNumber":"H207764","decisionDate":"2023-12-12","decisionYear":2023,"opinionType":"alj","claimantName":"Willard Pennington","employerName":"England Dirt Works & More, LLC","title":"PENNINGTON VS. ENGLAND DIRT WORKS & MORE, LLC AWCC# H207764 DECEMBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PENNINGTON_WILLARD_H207764_20231212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PENNINGTON_WILLARD_H207764_20231212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H207764 \n \nWILLARD J. PENNINGTON, II, EMPLOYEE          CLAIMANT \n \nENGLAND DIRT WORKS & MORE, LLC, EMPLOYER         RESPONDENT \n \nNATIONAL SPECIALTY INSURANCE, CARRIER / \nSTATE NATIONAL INSURANCE CO., TPA                              RESPONDENT \n            \nOPINION FILED DECEMBER 12, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas on December 5, 2023. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Mr. J. Matthew Mauldin, Attorney-\nat-Law of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on December 5, 2023, in Little Rock, \nArkansas on respondent’s Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode Annotated   §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct.  The claimant was pro se and failed to appear for the hearing.  The claimant had filed \na letter on May 6, 2022, requesting a hearing.  A Form AR-C was filed on November 1, \n2022, providing that the claimant had sustained injuries to his right leg, right knee, right \nshin, and whole body, as well as nerve impingement on June 12, 2022.  The First Report \nof Injury filed on February 10, 2023, provided that the claimant had injured himself when \nhe stepped on a manhole cover that flipped up and he hurt his leg.  The claimant initially \nretained Laura Beth York as his attorney but she was allowed to withdraw by an Order of \nthe Full Commission dated August 25, 2023. The claimant has taken no further action to \nprosecute his claim and the respondents filed a Motion to Dismiss on October 2, 2023, \n\nPENNINGTON – H207764 \n \n2 \n \nrequesting that the matter be dismissed for lack of prosecution pursuant to Commission \nRule 099.13 and Ark. Code Ann. § 11-9-702.  \n Appropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was set for December 5, 2023, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nMr. J. Matthew Mauldin appeared on behalf of the respondents and asked that the matter \nbe dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondents, I find that this matter should be dismissed without prejudice, for failure to \nprosecute  pursuant  to  Ark.  Code  Ann.  §  11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2977,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207764 WILLARD J. PENNINGTON, II, EMPLOYEE CLAIMANT ENGLAND DIRT WORKS & MORE, LLC, EMPLOYER RESPONDENT NATIONAL SPECIALTY INSURANCE, CARRIER / STATE NATIONAL INSURANCE CO., TPA RESPONDENT OPINION FILED DECEMBER 12, 2023 Hearing before Administrative Law J...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:59:21.940Z"},{"id":"alj-H300548-2023-12-12","awccNumber":"H300548","decisionDate":"2023-12-12","decisionYear":2023,"opinionType":"alj","claimantName":"Lillian Reichert","employerName":"Saint Jean Industires, Inc","title":"REICHART VS. SAINT JEAN INDUSTIRES, INC. AWCC# H300548 DECEMBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/REICHERT_LILLIAN_H300548_20231212.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REICHERT_LILLIAN_H300548_20231212.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H300548 \n \nLILLIAN J. REICHART, EMPLOYEE         CLAIMANT \n \nv. \n \nSAINT JEAN INDUSTIRES, INC., EMPLOYER                         RESPONDENT \n \nAMERISURE MUTUAL INSURANCE COMPANY \nWORKERS’ COMPENSATION CARRIER                        RESPONDENT \n \nOPINION FILED DECEMBER 12, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 26\nth\n day of September \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant is represented by Mr. Daniel A. Webb, Attorney-at-Law, Little Rock, Arkansas. \n \nRespondent  is  represented  by  Ms.  Karen H.  McKinney,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on the 26\nth\n day of September, 2023, to determine the issues \nof compensability and medical for an injury to the claimant’s left arm, shoulder, and back on \nSeptember  23,  2022.    In  addition,  TTD was  requested  for  two  (2)  separate  time  periods \nrelating to the injury, with the first time period being from November 7, 2022, to April 3, 2023, \nand the second time period being from May 19, 2023, to July 12, 2023, plus attorney fees.  A \nthird  period  of  TTD  from  September  5\nth\n,  2023,  to  a  future  date,  was  reserved.    The \nrespondents contended that the claimant did not sustain a compensable injury on September \n23, 2022, for which she is entitled to benefits.  The parties stipulated that the claimant earned \nan average weekly wage of $728.66 sufficient for a TTD/PPD rate of $486.00 / $365.00 per \nweek, respectively.   A copy of the Prehearing Order was marked  “Commission Exhibit 1” \nand made part of the record without objection.  The Order provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission had  jurisdiction  of  the  within  claim \n\nREICHERT – H300548 \n \n2 \n \nand  that  an  employer/employee  relationship  existed  on  or  about  September 23,  2022,  the \ndate of the claimed injury in question.        \n The claimant’s and respondents’ contentions are set out in their respective responses \nto the prehearing questionnaire and made a part of the record without objection.  The  sole \nwitness was Lillian Reichart, the claimant.  From a review of the record as a whole, to include \nmedical  reports  and  other  matters  properly  before  the  Commission,  and having  had  an \nopportunity to observe the testimony and demeanor of the witness, the following findings of \nfact and conclusions of law are made in accordance with Arkansas Code Annotated §11-9-\n704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1.    The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2.   That an employer/employee relationship existed on September 23, 2022, the date \nof the claimed injury.  At the time, the claimant earned an average weekly wage of \n$728.66 a week, sufficient for a TTD/PPD rate of $486.00 / $365.00, respectively, \nper week. \n \n3.   That  the  claimant  has  satisfied  the  required  burden  of  proof  to  show  that  she \nsustained a compensable work-related on September 23, 2022. \n \n4.   That  the  claimant  is  found  to  be  entitled  to  reasonable  and  necessary  medical \ntreatment for the work-related left shoulder injury which would include the surgery \nto the left shoulder. \n \n5.   The claimant has satisfied the required burden of proof to show that she is entitled \nto TTD for the period beginning  on November  11, 2022, up to and including the \ndate  of  December  11, 2022.    In  addition,  the claimant  has  satisfied  the  required \nburden of proof to show that she is entitled to a second period of TTD beginning \non May 19, 2023, up to and including July 11, 2023. The issue of additional TTD \nfrom September 5\nth\n, 2023, to a future date to be determined was reserved. \n \n6.   The  claimant  is  entitled  to  attorney  fees  pursuant  to  Ark. Code Ann.  § 11-9-715.  \nThis Award shall bear interest at the legal rate pursuant to Ark. Code Ann. § 11-9-\n809. \n \n7.   If not already paid, the respondents are ordered to pay for the cost of the transcript \nforthwith. \n \n\nREICHERT – H300548 \n \n3 \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The  Prehearing  Order,  along  with  the  prehearing  questionnaires  of  the  parties’ \nresponses to the prehearing questionnaire were admitted into the record without objection.   \nThe  claimant  submitted  an  exhibit  of  medical  records  that  consisted  of thirty-seven (37) \npages that were admitted without objection. \n The  claimant,  Lillian  J.  Reichart,  testified  she  had  obtained  her  GED and attended \nsome  college.    She  had  worked  as  a  boat  captain  and  then  obtained  her  Electrical  One \nMechanical  Design  Engineering  Job  License.    She  had  managed  and  owned  a  hotel.    In \nregard to  her work for the respondent, she started there working for a staffing agency  and \nwhen the contract with the staffing agency ran out, she was hired directly by the respondent.  \nShe was trained as a machine operator and could load the machines and check for flaws of \nthe  finished  products,  which  consisted  of  aluminum  automobile parts.    On  September  23, \n2022, she was loading the W-L automated line and checking quality to determine if there were \nany flaws.  (Tr. 6-9) \n She stated she injured herself when she picked up a fifteen (15) pound part to place \nit  up  over  the  spindles  and  down  in  a  tray,  and  in  the  process  heard  a  pop  and  felt \n“excruciating pain” in her left shoulder.  She told her employer and then finished out the day.  \nThe  pain  was  excruciating,  and  she  was  given  ibuprofen.      When  she  got  home,  she  took \nsome additional ibuprofen, mixed her a drink, and slid down in a hot tub to soak her shoulder.  \nShe  testified  she  was  hurting  primarily  in  her  left  shoulder  and  up  her  neck.    In  regard  to \nreturning to work the next day, she responded,  “I certainly did.”  In regard to her working the \nnext day,  she stated, “We decided that if I felt like doing work, I felt like working and I felt like \nmaybe it was just a pulled muscle or something, so I worked, and I worked it.  And I wanted \nto work it out so I could continue to work. I work seven days a week.  I’m good at my job.”  \n\nREICHERT – H300548 \n \n4 \n \n“After a while, it just got to where I couldn’t pick my arm up high enough to get the parts up \nover the spindles and down in the trays to send them to the robot.” (Tr. 10-12) \n The respondents sent her to Dr. Herring on the 7\nth\n of November who told her that the \nfirst  step  was  physical  therapy.    She  received  physical  therapy, but  it  did  not  help.    She \nadmitted receiving an x-ray and MRI and stated she still had the pain in her shoulder.  She \ntestified that the doctor took her off work on November 7, 2022, and she took the letter to HR \nand started physical therapy the following week.  In regard to the physical therapy, she stated \nit was horrible.  “It was -- I had natural childbirth and the same day a total hysterectomy, and \nlet me tell you what, that was a lot easier than what I was experiencing then.”  She remained \noff work and was not paid for being off of work.  She returned to the doctor on February 20, \n2023, with the pain in her shoulder becoming worse.  She was told she needed an orthopedic \nspecialist and went to see Dr. Wallace.  She finally received a shot in her shoulder and more \nphysical therapy. (Tr. 13-16)  She stated  Dr.  Wallace  had  her work eighteen (18) days prior \nto her surgery on May 19. (Tr. 17)  The surgery consisted of three (3) incisions which were \nhealing up really well and she was doing physical therapy twice (2) a day, six (6) days a week.  \nThe shots worked great and she was doing a lot better since the surgery.  She returned to \nwork on July 12, 2023, and was not paid any money for being off work. (Tr. 18) \n The claimant stated her shoulder was doing a lot better, but that it still hurt.  She again \nstated  she  hurt  herself while  loading  parts  on an  automatic line.  (Tr. 20)    She  thought  that \nworkers’ compensation  had paid for her visit to Dr. Herring and for some physical therapy, \nbut had not paid for the surgery by Dr. Wallace. (Tr. 21, 22) \n Under cross-examination, the claimant admitted she did not seek medical treatment \nwhen she told the respondent she was injured.  She also  contended  she went through the \nproper channels with HR in regard to the injury and was sent for medical treatment, paid for \nby  the  workers’  compensation  carrier.    She  admitted  that  physical  therapy  had  been \n\nREICHERT – H300548 \n \n5 \n \nauthorized, when shown an email from Tina Swanson, and in addition, the injury date noted \nwas November 2, 2022.  However, the claimant stated that she had turned in paperwork back \nin September to her boss Wynona Richardson and, “We decided that if I could work, maybe \nit was just a pulled muscle or something, it might work out.  Well, it didn’t.”  The claimant also \nadmitted  she  had  received  the  employee  handbook  which  provided  she  should  report  any \ninjury she had sustained at work and contended that she did report it to her supervisor. (Tr. \n23-26)  The claimant was asked about declining any medical treatment and she responded \nthat it was late at night, she would have been required to go to the emergency room, and she \nwanted to attempt to work it out. (Tr. 27) \n The claimant agreed her medical treatment was originally paid for by the respondents.  \nShe  also  agreed  that  many  times  when  she went  to  the  office  of  Dr.  Herring,  she  would \nactually  see  Justin  Matthew  Sharp,  his  nurse  practitioner.  (Tr.  28)    The  claimant  was \nquestioned  about  a  medical  note  signed  by  Nurse  Sharp  that  provided, “It is my medical \nopinion that Lillian Reichart’s shoulder pain in her left shoulder is from tendonopathy, that it \nis likely related to the repetitive motions at work and the tiny instral tear, not the arthritis noted \non the MRI.” The claimant responded “all right.”  “They quit paying for my medical when Dr. \nHerring said he wanted me to see an orthopedic specialist, whatever day that was.” (Tr. 29)   \nClaimant was also questioned about the Form AR-2  which provided that the, “Carrier denies \nclaim in its entirety” and where Nurse Sharp related the findings to repetitive work for  the \nrespondent.  Claimant responded “That’s  what,  yes,  that’s  what  he  said.   I’ve  done  it  \nfor  many  months  before  that.”  (Tr. 30-31) \n On redirect, the claimant again stated when she injured her shoulder, she reported it \nto her supervisor and was not made aware of anything else that she needed to do at that time \nin regard to her claim. (Tr. 32) \n\nREICHERT – H300548 \n \n6 \n \n On  recross,  the  claimant  admitted  the  physical  therapy  was  ordered after  a  new \nincident  which  occurred  when  she  returned  to  work.    She  stated  she  was  doing  physical \ntherapy when she returned to work in July.  She had been provided physical therapy every \nday between July when she was released to return to work and the new incident that occurred \nin September. (Tr. 33) \n In  regard  to  medical  records,  the  claimant  received  an  MRI  at  Baptist  Health  on \nNovember  11,  2022.      The  report  provided  under  impression  a  finding  of  subscapularis \ntendinopathy with a tiny interstitial tear at the superior margin and a likely tiny bursal sided \nfootplate tear at the lesser tuberosity attachment with no full thickness tear.  There was no \nmeasurable  tear  at  the  supraspinatus  with  infraspinatus  tendinopathy.  Biceps  long  head \ntendinopathy was  found  with a probable  split  tear  at  the  intertubercular  grove  with \ndegeneration   without   a   defined   tear   on   this   non   arthrographic   assessment.      Mild \nacromioclavicular  joint  and  moderate  glenohumeral  arthritis  was  found  along  with  cystic \nchanges and marrow edema regional to the intertubercular grove.  The report was signed by \nDr. Hale. (Cl.Ex.1, PP.1-2) \n Baptist  Health  progress  notes  authored  by  Justin Mathew Sharp, APRN, with e-\nsignature verification by Dr. Justin Long, and the report also mentioning Dr. Herring, with the \ninitial note dated November 7, 2022, provided the claimant complained of left shoulder pain \nafter hearing a pop while at work back in September when lifting fifteen (15) pounds of auto \nparts.  The report provided that the accident occurred at work more than a week earlier.  It \nmentioned a complete tear of the left rotator cuff, and stated under assessment and plan it \nwas unspecified whether it was traumatic.  The report referred to the MRI and the x-rays of \nthe left shoulder and stated the injury method was repetitive motion. (Cl.Ex.1, PP.3-  15)  \nA letter from Dr. Herring, dated February 20,  2023,  referred to a left  shoulder injury \nthat occurred in September and referred to the MRI that showed a partial rotator cuff tear and \n\nREICHERT – H300548 \n \n7 \n \na  partial  bicep  tear  with  significant  pain  to  passive  range  of  motion  of  the  left  shoulder.   It \nfurther provided that the claimant was not able to work at the time of the letter and she should \nbe seen by an orthopedic surgeon.  (Cl.Ex.1, P.16)  \nAdditional medical notes from the Baptist Health Family Clinic also with a visit date of \nFebruary  20,  2023,  stated  under  assessment  that  the  claimant  returned  with  left  shoulder \npain with shoulder biceps tendinitis and a partial tear.  It further provided that the history and \nexamination were reviewed with the claimant and that she had tendinosis on the MRI without \nevidence  of  a  full  thickness  tear  or  rupture  with  no  surgical  intervention  at  the  time  of  the \nreport needed or warranted.   Confusingly and  apparently in conflict with the letter from Dr. \nHerring of the same date, this report provided that the claimant could return to work, and this \nwas signed off by Kyle Cotton, PA. (Cl.Ex.1, PP.17-19)   \nOn May 19, 2023, the operating note by Dr. Wallace, provided under post-operative \nfindings,  rotator  cuff  tendinosis,  partial-thickness  intra-articular  biceps  tear  and  tendinosis, \npartial-thickness rotator cuff tear of the articular surface with an arthroscopic partial thickness \nrotator  cuff  tear  of  the  articular  surface  with  arthroscopic  subacromial  decompression  and \nacromioplasty, and subpectoral biceps tenodesis. (Cl.Ex.1,PP.20-  21)  \nThe claimant then presented to OrthoArkansas for an office visit follow-up on May 25, \n2023,  with  the  report  referring  to  a  partial  thickness  rotator cuff  tear,  with  a  disorder  of  a \ntendon  of  the  biceps,  and  an  impingement  syndrome  of  the  shoulder  region,  all  on  the  left \nside, which was signed by Dr. Henry Wallace. (Cl.Ex.1, PP.22-27) \n A note dated September 5, 2023, provided a lifting tolerance for the claimant while at \nwork.  (Cl.Ex.1,P.28).   A note dated August 10, 2023, provided for no heavy lifting, pushing, \nor pulling.  (Cl.Ex.1,P.29)  An earlier note from OrthoArkansas dated July 11, 2023,  provided  \nthe  claimant  may  return  to  work  full-duty  with no work restrictions.  (Cl.Ex. 1,P.30)  An \nemail  dated  November  29,  2022,  provided  authorization  for  twelve  (12)  visits  of  physical \n\nREICHERT – H300548 \n \n8 \n \ntherapy.    (Cl.Ex.1,P.30)  An  email  dated  July  20,  provided  the  claimant  had  missed  1072 \nhours of work since September 1\nst\n and that she did not start missing work until November 7, \n2022.  It additionally stated that her leave started on November 7, 2022, and went to April 3, \n2023,  with  the  second  period  beginning  on  May  19,  2023,  and  going  until  July  12,  2023. \n(Cl.Ex.1,P.32)    Another  note  provided  the  claimant  was  seen  at  a  Baptist  Health  Clinic  on \nNovember 11, 2022, and that she should be excused from work on that date while she was \nbeing  seen  by  Justin  Mathew  Sharpe,  APRN.  (Cl.Ex.1,P.34)    An  additional  note  dated \nNovember 11, 2022, provided that the claimant should remain off of work until December 12, \n2022, and at that time she would be evaluated to return to work. (Cl.Ex.1, P.35)  Another note \ndated June 8, 2022, provided the claimant should be excused from work on June 8,  2022, \nand June 9, 2022, and finally a note on June 9, 2022, provided that the claimant was seen by \nDr. Herring on June 9,  2022, and she should be able to return to work  on June 14, 2022.  \n(Cl.Ex.1,PP.36-37).      \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nIn  regard  to  the  primary  issue  of  compensability,  the  claimant  has  the  burden  of \nproving, by a preponderance of the evidence, that she is entitled to compensation benefits \nfor  the  injury  to  her  left  shoulder under the  Arkansas Workers’ Compensation  Law.  In \ndetermining whether the claimant has sustained her burden of proof, the Commission shall \nweigh  the  evidence  impartially,  without  giving  the  benefit  of  the  doubt  to  either  party.    Ark. \nCode Ann. §11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 (1989).  \nFurther, the Commission has the duty to translate evidence on all issues before it into findings \nof  fact.   Weldon  v.  Pierce  Brothers  Construction  Co.,  54  Ark.  App.  344,  925  S.W.2d  179 \n(1996). \nThe claimant in this matter was a sixty-eight (68) year old woman at the time of the \nhearing and a former boat captain, whose testimony did show something of an independent \n\nREICHERT – H300548 \n \n9 \n \nstreak, but was also found to be believable.  Her testimony in regard to the injury was basically \nunrebutted.  She testified she injured her left shoulder when she picked up a fifteen-pound \nautomobile part and felt a pop with “excruciating pain” in her left shoulder and up her neck.  \nShe testified that she told her employer about the injury and continued to work on the day of \nthe  injury.    When  she  returned  home  that  night,  she  took some  ibuprofen,  mixed  herself  a \ndrink, and slid down into a hot tub to soak her shoulder and then returned to work the next \nday.  The claimant continued to work until November 7, 2022, when after continued shoulder \nissues, the respondents sent her to a doctor, who took her off work on the date of the visit, \nper the claimant’s testimony.  She testified she brought the note taking her off work to HR.  \nThe claimant started receiving physical therapy and gave a somewhat colorful description of \nthe  pain  involved  in  the  therapy  that  started  the  following week.    She  remained  off  work \nwithout pay.  An email provided she was on leave from November 7, 2022, with a return on \nMay 3, 2023.  The second leave period per the email provided she was off work from May \n19, 2023, with a return on July 12, 2023.  \nShe  returned  to her  treating  physician  on  February  20,  2023,  which  resulted  in a \nreferral  to  Dr.  Wallace.  Under  cross-examination,  the  claimant  admitted  she  did  not  seek \nmedical treatment at the time she initially told the respondent of her injury and admitted that \nthose medical records provided an injury date of November 2, 2022.  She also admitted her \noriginal medical treatment had been paid for by the respondents and that Nurse Sharp related \nthe medical findings in regard to her shoulder problems to a repetitive injury.  She also stated \nDr. Wallace had her work  eighteen  (18) days prior to her surgery. \nThe claimant was provided an MRI on November 11, 2022, shortly after her first doctor \nvisit, which showed a subscapularis with a tiny interstitial tear at the superior margins and a \nlikely tiny bursal sided footplate tear at the lesser tuberosity attachment with no full thickness \ntear and also with a probable split tear along the biceps.  On May 19, 2023, Dr. Wallace’s \n\nREICHERT – H300548 \n \n10 \n \noperating note stated under post-operative findings of post rotator cuff tendinosis, a partial-\nthickness  intra-articular  biceps  tear  tendinosis,  a  partial-thickness  rotator  cuff  tear  of  the \narticular surface with an arthroscopic partial thickness rotator cuff tear.     \nUnder  workers’ compensation  law  in  Arkansas,  a  compensable  injury  must  be \nestablished  by  medical  evidence  supported  by  objective  findings and  medical  opinions \naddressing compensability and must be stated within a degree of medical certainty. Smith-\nBlair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).    Speculation  and  conjecture \ncannot substitute for credible evidence.  Liaromatis v. Baxter County Regional Hospital, 95 \nArk. App. 296, 236 S.W.3d 524 (2006).  More specifically, to prove a compensable injury, the \nclaimant must establish, by a preponderance of the evidence: (1) an injury arising out of and \nin the course of employment; (2) that the injury caused internal or external harm to the body \nwhich  required  medical  services  or  resulted  in  disability  or  death; (3)  medical  evidence \nsupported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) establishing the \ninjury; and (4) that the injury was caused by a specific incident and identifiable by time and \nplace of occurrence.  If the claimant fails to establish any of the requirements for establishing \nthe compensability of the claim, compensation must be denied.  Mikel v. Engineered Specialty \nPlastics, 56 Ark. App. 126, 938 s.W.2d 876 (1997). \nAn  injury  for  which  the  claimant  seeks  benefits  must  be  established  by  medical \nevidence supported by objective findings which are those findings that cannot come under \nthe voluntary control of the patient. Ark. Code Ann. § 11-9-102(16).  It is also important to note \nthat  the  claimant’s  testimony  is  never  considered  uncontroverted.   Lambert  v.  Gerber \nProducts Co.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  \nHere the medical records clearly mentioned many issues that could be attributed to \nthe claimant’s sixty (60) plus year  old shoulder, which would be typical for a person  of her \nage.  However, under Arkansas Workers’ Compensation law, it is also clear that an employer \n\nREICHERT – H300548 \n \n11 \n \ntakes the employee as it finds her and employment circumstances that aggravate preexisting \nconditions are compensable.  Heritage Baptist Temple v. Robinson, 82 Ark. App. 460, 120 \nS.W.3d 150 (2003). \nFurther,  a  claimant  is  not  required  in  every  case  to  establish  the  casual  connection \nbetween  a  work-related  incident and an injury with an expert medical opinion.  See, Wal-\nmart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).  Arkansas courts have \nlong  recognized  that  a  causal  relationship  may  be  established  between  an  employment-\nrelated  incident  and  a  subsequent  physical  injury  based  on  evidence  that  the  injury \nmanifested itself within a reasonable period of time following the incident so that the injury is \nlogically attributable to the incident, where there is no other reasonable explanation for the \ninjury.  Hail v. Pitman Construction Co. 235 Ark. 104, 357 A.W.2d 263 (1962) \nA workers’ compensation claimant bears the burden of proving the  compensable \ninjury, by a preponderance of the evidence. Arkansas Code Annotated §11-9-102(4)(E) (i).  \nA compensable injury is one that was the result of an accident that arose in the course of his \nemployment and that grew out of or resulted from the employment.  See, Moore v. Darling \nStore Fixtures, 22 Ar. App 21, 732 S.W.2d 496 (1987)  In the current matter it is noted that \nthe claimant had received healthcare and off work slips prior to the claimed injury on a couple \nof occasions.  However, based upon the available evidence in the case at bar,  there is no \nalternative  but  to  find  that  the  medical  evidence  clearly  supports  the  finding  of  a  traumatic \ntear of some of the left shoulder muscles and this credible evidence supports a finding that \nthe claimant’s left  shoulder  injury  is  in  fact a  work  related  injury  that  occurred  when  the \nclaimant initially felt the pain  on September 23, 2022, while lifting a fifteen  (15) pound part \nand consequently, it is compensable under the Arkansas Workers’ Compensation Act. \nIn regard to the medical, the Arkansas Compensation Act provides that an employer \nshall promptly provide for an injured employee such medical treatment as may be reasonably \n\nREICHERT – H300548 \n \n12 \n \nnecessary  in  connection  with  the  injury  received  by  the  employee.    Ark.  Code Ann.  § 11-9-\n508(a).  The employee has the burden of proving, by a preponderance of the evidence, that \nmedical  treatment  is  reasonably  necessary.   Stone  v.  Dollar  General  Stores,  91  Ark.  App. \n260, 209 S.W. 3d 445 (2005).  Preponderance of the evidence means the evidence having \ngreater weight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark App. \n263, 101 S.W.3d 252 (2003).  What constitutes reasonably necessary medical treatment is a \nquestion of fact for the Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. 358, \n676 S.W.2d 750 (1984).  The medical treatment that has been provided, including surgery, is \nfound to be reasonable and necessary.   \nTemporary total disability (TTD) is that period within the healing period in which the \nemployee suffers a total incapacity to earn wages.  Ark. State Hwy. Dept. v. Breshears, 272 \nArk. 244, 613 S.W.2d 392 (1981).  “Healing period” means “that period for healing of an injury \nresulting from an accident.”  Ark. Code Ann. § 11-9-102(12).  The determination of when the \nhealing period has ended is a question of fact for the Commission.  Dallas County Hospital v. \nDaniels, 74 Ark. App. 177, 47 S.W.3d 283 (2001) \nHere, the claimant contends that  she is entitled to two  (2) separate periods of TTD, \nwith the first one being from November 7, 2022, and returning to work on April 3, 2023, with \nthe second period running from May 19, 2023, with the claimant returning to work on July 12, \n2023.  An email provided that the claimant was on leave during these two (2) time periods.  \nThe evidence is somewhat confusing at best with at one point a doctor’s report providing that \nthe  claimant  should  remain  off  of  work  and  the  medical  report from  the  same  clinic  on  the \nsame date providing that the claimant could return to work. \nIn regard to the first claimed time period running from November 7, 2022, and returning \nto work on April 3, 2023, the claimant testified that Dr. Herring stated she should not return to \nwork from the date of November 7, 2023.  However, the medical records from that date only \n\nREICHERT – H300548 \n \n13 \n \nprovided the claimant received a note from Justin Sharpe, APRN, that excused her from work \non the day of the actual doctor’s visit, and this report  is found to be controlling.  A second \nnote  from  Nurse  Sharpe  APRN,  dated  November  11,  2022,  provided  the  claimant  should \nremain off work until December 12, 2022.  This would include the date when the claimant had \nto present to Little Rock for an MRI.  There are no other notes of record for the initial time \nperiod in question except for notes providing that the claimant should be allowed off work for \na day of a doctor’s visit, and the confusing letter from the treating doctor stating the claimant \nshould remain off of work on February 20, 2023, with his clinic providing a report on the same \ndate that the claimant could return to work.  Consequently, during the first time period it is \nfound that the claimant is entitled to TTD for the days beginning on November 11 of 2022, \nand up to and including December 11 of 2022. \nIn regard to the second time period running from May 19, 2023, to July 12, 2023, the \nclaimant had surgery on her shoulder performed by Dr. Wallace on May 19, 2023.  A doctor’s \nnote  from  Dr.  Wallace  provided  that  the  claimant  could  return  to  work  full  duty  on  July  12, \n2023.  It is found that the claimant would be entitled to TTD from May 19, 2023, the date of \nher surgery up to and including July 11, 2023.  Temporary total disability is not based on the \nclaimant’s healing period  in  all  cases,  but  is  awarded  where the claimant’s injury-caused \nincapacity prevents him from earning wages he was receiving at the time of the injury.  County \nMkt. v. Thorton, 27 Ark. App. 235, 770 S.W. 2d 156 (1989) \nThe claimant and her attorney are entitled to the appropriate legal fees as spelled out \nin Ark. Code Ann. § 11-9-715.  \nAfter weighing the evidence impartially, without giving the benefit of the doubt to either \nparty, it is found that the claimant has satisfied the burden of proof that her claim for the left \nshoulder  injury is  found  to  be  compensable  and  the  claimant  is  entitled  to reasonable  and \nnecessary  medical  care  for  the  left  shoulder  injury  which  would  include  the  left  shoulder \n\nREICHERT – H300548 \n \n14 \n \nsurgery by Dr. Wallace.  In addition, the claimant has satisfied the required burden of proof \nto  show  that  she  is  entitled  to  TTD  from  a  starting  date  of  November  11,  2022,  up  to and \nincluding the date of December 11, 2022, and also for the period beginning on May 19, 2023, \nup to and including the day of July 11, 2023. \nShe  is  also  entitled  to  attorney  fees  as  spelled  out by  the  Arkansas  Workers’ \nCompensation  Act.    This  Award  shall  bear  interest  at  the  legal  rate  pursuant  to  Arkansas \nCode Annotated §11-9-809. If not already paid, the respondents are ordered to pay the cost \nof the transcript forthwith. \nIT IS SO ORDERED. \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":29868,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300548 LILLIAN J. REICHART, EMPLOYEE CLAIMANT v. SAINT JEAN INDUSTIRES, INC., EMPLOYER RESPONDENT AMERISURE MUTUAL INSURANCE COMPANY WORKERS’ COMPENSATION CARRIER RESPONDENT OPINION FILED DECEMBER 12, 2023 Hearing before Administrative Law Judge, James D. ...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["shoulder","back","neck","repetitive","rotator cuff"],"fetchedAt":"2026-05-19T22:59:24.018Z"},{"id":"alj-H301509-2023-12-11","awccNumber":"H301509","decisionDate":"2023-12-11","decisionYear":2023,"opinionType":"alj","claimantName":"Jerry Reynolds","employerName":"George’s Hvac","title":"REYNOLDS VS. GEORGE’S HVAC AWCC# H301509 DECEMBER 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/REYNOLDS_JERRY_H301509_20231211.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REYNOLDS_JERRY_H301509_20231211.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H301509 \n \n \nJERRY REYNOLDS, Employee                                                                     CLAIMANT                         \n \nGEORGE’S HVAC, Employer                                                                  RESPONDENT                         \n \nBRIDGEFIELD CASUALTY INSURANCE CO., Carrier                           RESPONDENT                          \n \n \n \n OPINION/ORDER FILED DECEMBER 11, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by ZACHARY RYBURN, Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This  case  comes  on  for  review  following  a  hearing  on  respondent’s  Motion  to \nDismiss. \n Claimant filed Form AR-C on March 3, 2023 requesting compensation benefits for \nan  injury  date  of  December  18,  2021.    In  an  Order  filed  September  13,  2023, the  Full \nCommission  granted  claimant’s  attorney’s  Motion  to  Withdraw  as  Counsel.    No  further \naction  was  taken  in this  case  and  as  a  result  respondent  filed  a  motion  to  dismiss this \nclaim  on  September  15,  2023.    A  hearing  on  respondent’s  motion  was  scheduled  for \nNovember 29, 2023. \n Notice of the hearing was sent to claimant by certified mail and was delivered on \nOctober 14, 2023.  Claimant did not appear at the hearing and has not responded to the \n\nReynolds – H301509 \n \n2 \n \nrespondent’s Motion to Dismiss. \n After  my  review  of  the  respondent’s  motion,  the  claimant’s  failure  to  respond \nthereto,  and all  other  matters  properly  before  the  Commission,  I  find  that  respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2066,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301509 JERRY REYNOLDS, Employee CLAIMANT GEORGE’S HVAC, Employer RESPONDENT BRIDGEFIELD CASUALTY INSURANCE CO., Carrier RESPONDENT OPINION/ORDER FILED DECEMBER 11, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington Co...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:59:13.702Z"},{"id":"alj-H202572-2023-12-07","awccNumber":"H202572","decisionDate":"2023-12-07","decisionYear":2023,"opinionType":"alj","claimantName":"Doug Ticson","employerName":"Ozark Ridge Landfill","title":"TICSON VS. OZARK RIDGE LANDFILL AWCC# H202572 DECEMBER 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TICSON_DOUG_H202572_20231207.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TICSON_DOUG_H202572_20231207.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H202572 \n \nDOUG S. TICSON, EMPLOYEE   CLAIMANT \n \nOZARK RIDGE LANDFILL, EMPLOYER RESPONDENT \n \nINDEMNITY INSURANCE COMPANY OF NORTH AMERICA/ \nGALLAGHER BASSETT SERVICES INC. INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED DECEMBER 7, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by MELISSA WOOD, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  October 22, 2022, claimant filed Form AR-C, alleging a compensable injury on March \n14,  2022.     Claimant  was  represented  by  Laura  Beth  York,  who  filed  a  Motion  to  Withdraw  on \nSeptember 15, 2023 and was allowed to withdraw on September 26, 2023.  No other attorney entered \nan appearance on claimant’s behalf.   \nOn  October  2,  2023,  respondent  filed  a  Motion  to  Dismiss,  alleging  that  it  had  been  more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time. A hearing on  respondent’s Motion to Dismiss was scheduled for \nNovember 28, 2023.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was  returned unclaimed on October 28, 2023.                  \nClaimant did not respond to Respondent’s motion and did not appear in person at the hearing on \nNovember 28, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nTicson-H202572 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2277,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202572 DOUG S. TICSON, EMPLOYEE CLAIMANT OZARK RIDGE LANDFILL, EMPLOYER RESPONDENT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA/ GALLAGHER BASSETT SERVICES INC. INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED DECEMBER 7, 2023 Hearing before ADMINISTRATIVE...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:59:11.643Z"},{"id":"alj-H204537-2023-12-06","awccNumber":"H204537","decisionDate":"2023-12-06","decisionYear":2023,"opinionType":"alj","claimantName":"James Booth","employerName":"Weyerhaeuser Nr Co., Inc","title":"BOOTH VS. WEYERHAEUSER NR CO., INC. AWCC# H204537 DECEMBER 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BOOTH_JAMES_H204537_20231206.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOOTH_JAMES_H204537_20231206.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204537 \n \nJAMES E. BOOTH,   \nEMPLOYEE                                                  CLAIMANT \n \nWEYERHAEUSER NR CO., INC.,   \nEMPLOYER                                                    RESPONDENT \n \nWEYERHAEUSER NR CO., INC./SEDGWICK CLAIMS                           \nMG’T.Cindy SERVICES, INC.,     \nINSURANCE CARRIER/TPA                                  RESPONDENT \n                              \n                                    \nOPINION FILED DECEMBER 6, 2023  \n \nHearing   conducted   on   September   7,   2023,   before the  Arkansas  Workers’  Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ)  Mike  Pickens,  in  Texarkana, \nMiller County, Arkansas. \n \nThe  claimant  was  represented  by  the  Honorable  Gregory  R.  Giles,  Moore,  Giles  &  Matteson, \nTexarkana, Miller County, Arkansas. \n \nThe respondents were represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \n       In the prehearing order filed May 16, 2023, the parties agreed to the following \nstipulations, which they modified and affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  at  all  relevant  times \nincluding June 13, 2022, when the claimant alleges he sustained a “compensable \ninjury” to his left ankle.   \n \n3.    The claimant’s average weekly wage (AWW) was $1,196.14, which is sufficient to \n    entitle him to weekly compensation rates of $790.00 for temporary total disability \n    (TTD), and $593.00 for permanent partial disability (PPD) benefits. \n \n4.    The claimant applied for and received short-term disability (STD) benefits from \n     June 14\nth\n, 2022, through October 28\nth\n, 2022, at the rate of $226 for 26 weeks. \n     Therefore, pursuant to Ark. Code Ann. Section 11-9-411 (2023 Lexis \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n2 \n    Replacement) the respondents are entitled to a dollar-for-dollar off-set against any \n    TTD benefits that awarded to the claimant, if any.   \n \n5. The respondents have controverted this claim in its entirety. \n  \n6.    The parties specifically reserve any and all other issues for future litigation and/or \n    determination. \n \n(Commission Exhibit 1 at 1-2; Hearing Transcript at 3-5; 59-60). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were: \n \n1. Whether  the  claimant  sustained  a “compensable  injury”  within  the  meaning  of  the \nArkansas Workers’ Compensation Act (the Act) to his left ankle on June 13, 2022. \n \n2. If  the  claimant’s  alleged  injury  is  deemed  compensable,  the  extent  to  which  he  is \nentitled to medical and indemnity benefits.   \n \n3. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The  parties  specifically  reserve  any  and  all  other  issues  for  future  litigation  and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2, T. 3-5; 60). \nThe claimant contends he sustained a compensable injury to his left ankle on June 13, 2022. \nHe  contends  he  is  entitled  to  TTD  benefits  from  June  14,  2022,  through  November  17,  2022, \nconsistent  with  Stipulation  No.  3, supra.  The  claimant  contends  the  medical  treatment  he  has \nreceived to date for his left ankle has been related to and reasonably necessary for treatment of his \ncompensable injury; therefore, he contends the Commission should order the respondents to pay \nfor this treatment, including but not limited to reimbursement for his out-of-pocket expense(s) and \nmileage  totaling  $991.98,  to  date.  In  addition,  the  claimant  contends  he  is  entitled  to  additional \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n3 \nmedical treatment for his left ankle injury. Specifically, if the Commission deems the claimant’s \nleft ankle injury to be compensable, he intends to request his one (1)-time-only change of physician \n(COP)  for  the  primary  purpose  of  determining  his  permanent  anatomical  impairment,  if  any, \namong other purposes as the COP may deem related to and reasonably necessary in light of his \ninjury.  Finally,  the  claimant  contends  the  Commission  should  order  the  respondents  to  pay a \ncontroverted attorney's fee as provided by law. (Comms’n Ex. 1 at 2-3; T. 55-56). \nThe respondents contend the claimant cannot meet his burden of proof in demonstrating he \nsustained a “compensable injury” within the Act’s meaning. Specifically, the respondents contend \nthe  claimant  did  not  sustain an “accidental injury”,  was  not  within  the  course  and  scope  of  his \nemployment, and/or was not performing employment services at the time of his alleged left ankle \ninjury, which the respondent contend was idiopathic in nature. Therefore, the respondents contend \nthe claimant is not entitled to any medical or indemnity benefits. (Comms’n Ex. 1 at 3; T. 54-55). \n \nSTATEMENT OF THE CASE \n       The claimant, Mr. James Edward Booth (the claimant) is 47 years old. In 2016 he injured \nhis left foot and ankle while working for Tyson when he caught the foot in a drain. He missed no \nwork as a result of this injury, and an MRI of his left ankle performed on March 24, 2016, revealed \nsome mild tendinosis. (Claimant’s Exhibit 1 at 2; 2-3). He was diagnosed with a sprain of his left \nankle and was able to return to full duty work thereafter with no restrictions. The claimant also \nhad a history of lower back problems for which he drew long-term disability (LTD) at one time. \n(T. 16; 8-35; 36-39).   \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n4 \n       The relevant  facts  of  this  claim  concerning  how  the  claimant’s  alleged  left  ankle  injury \noccurred  are  undisputed.  The  claimant  began  his  employment  with  Weyerhaeuser  on  April  26, \n2022. The claimant admitted he had injured his left ankle in 1996 while working for Tysons, but \nsaid he missed no work as a result of this injury, and that he had no more problems with the left \nankle  thereafter.  He  testified  that  before  he  went  to  work  for  Weyerhaeuser  he  was  required  to \nundergo a company physical examination, which he passed. (T. 9-11). \n     Concerning  the  alleged  left  ankle  injury  at  issue  in  this  case,  the  claimant  testified  that  on \nJune 13, 2022, he was walking on the employer’s premises from one building to another, from one \nwork area to another, when he stepped from the grass to the concrete and that his left “ankle rolled” \nresulting in immediate and significant pain he felt radiate up into the area of his groin. (T. 15-19). \nHe reported this injury almost immediately, and on the Form AR-N under the heading “Place of \nAccident” is written, “Slick Deck/Bark Hog Area.” (Claimant’s Exhibit 2 at 1; CX2 at 13-14; T. \n15-19; 39-44).   \n     The  claimant  initially  was  treated  conservatively,  but  his  treating  orthopedic  surgeon,  Dr. \nDwayne  Daniels,  eventually  ordered  an  MRI  which  was  conducted  on  August  8,  2022,  which \nrevealed a, “full thickness tear of the longus tendon” in his left ankle. (CX2 at 30A). Some of Dr. \nDaniels’s clinic notes refer to the tear as having been, “spontaneous.” (e.g., see Dr. Daniels’s clinic \nnote of September 1, 2022). Dr. performed surgery to correct this condition on August 24, 2022, \nand in a report dated November 21, 2022, Dr. Daniels stated the claimant had sustained no – zero \npercent (0%) – permanent anatomical impairment as a result of this left ankle injury. (CX2 at 43). \n    \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n5 \nDISCUSSION \nThe Burden of Proof \n     When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n9-704(c)(3) (2023 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act  in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987).   \n       All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n6 \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.   \n     The  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n       It  is  a  black  letter  principle  of  workers’  compensation  law  that  an  employer  takes  the \nemployee  as  he  finds  him;  and  an  employment-related  incident  that  aggravates  a  preexisting \ncondition(s)  is  (are)  compensable. Heritage  Baptist  Temple  v.  Robison,  82  Ark.  App.  460,  120 \nS.W.3d  150  (Ark.  App.  2003).  Stated  another  way,  a  preexisting  disease  or  infirmity  does  not \ndisqualify  a  claim  if  the  work-related  incident  aggravated,  accelerated,  or  combined  with  the \ndisease  or  infirmity  to  produce  the  disability  for  which  the  claimant  seeks  benefits. Jim  Walter \nHomes  v.  Beard,  82  Ark.  App.  607,  120  S.W.3d  160  (Ark.  App.  2003).  The  aggravation  of  a \npreexisting, otherwise non-compensable condition by a compensable injury is itself compensable. \nOliver v. Guardsmark, 68 Ark. App. 24, 3 S.W.3d 336 (Ark. App. 1999). An aggravation is a new \ninjury  resulting  from  an  independent  incident. Crudup  v.  Regal  Ware,  Inc.,  341  Ark.  804,  20 \nS.W.3d 900 (Ark. App. 2000) (Emphasis added). Of course, since it is a new injury resulting from \nan  independent  cause,  any  alleged  aggravation  of  a  preexisting  condition  must  meet  the  Act’s \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n7 \ndefinition of a “compensable injury” in order for the claimant to prove compensability. Farmland \nIns. Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (Ark. App. 1996). \n      Concerning the proof required to demonstrate the aggravation of a preexisting condition, our \nappellate courts have consistently held that since an aggravation is a new injury, a claimant must \nprove it by new objective evidence of a new injury different than the preexisting condition. Vaughn \nv. Midland School Dist., 2012 Ark. App. 344 (Ark. App. 2012) (citing Barber v. Pork Grp., Inc., \n2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. 130, 382 \nS.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 (Ark. App. \n2010). Where the only objective findings present are consistent with prior objective findings or \nconsistent with a long-term degenerative condition rather than an acute injury, this does not satisfy \nthe  objective  findings  requirement  for  the  compensable  aggravation  of  a  preexisting  condition \ninjury. Vaughn, 2012 Ark. App. 344, at 6 (holding that Arkansas courts have interpreted the Act \nto  require  “new  objective  medical  findings  to  establish  a new  injury  when  the  claimant  seeks \nbenefits  for  the  aggravation  of  a  preexisting  condition”); Barber,   supra   (affirming   the \nCommission’s denial of an aggravation of a preexisting condition claim where the MRI findings \nrevealed a degenerative condition, with no evidence of, and which could not be explained by, an \nacute injury). (Emphasis added). Based on the aforementioned law as applied to the facts of this \ncase,  I am  compelled to  find the  claimant has met his burden of proof in  demonstrating his left \nankle injury of June 13, 2022, constitutes a “compensable injury” within the Act’s definition. \n    The case at bar is both factually and legally similar to White County Medical Center, LLC v. \nJohnson, 2022 Ark. App. 262, 646 S.W.3d 245 (Ark. App. 2022). In White County Med. Ctr., the \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n8 \nclaimant, who was a mental health technician whose job was providing care and support to patients \nundergoing  mental  health  and  substance  abuse  treatment,  was  simply  walking  around  the  unit \nchecking on her patients when she turned a corner to go into a patient’s room, felt a “pop” in her \nright ankle, reported the  incident to her immediate supervisor, then to a co-worker whose job it \nwas to handle workers’ compensation claims. Although she was in pain, the claimant continued to \nwork,  and  about  a  week  later  she felt a second “pop” in  her right  ankle simply  while walking. \nWhite Cty. Med. Ctr., 646 S.W.3d 248. \n     The claimant’s treating physician initially diagnosed her with a sprained ankle, but referred \nthe claimant to an orthopedic surgeon, Dr. Michael Weber, who suspected a ligament tear in the \nclaimant’s  right  ankle.  An  MRI  confirmed  Dr.  Weber’s  suspicion,  so  the  claimant  underwent \nsurgery to repair the torn tendon. White Cty. Med. Ctr., 646 S.W.3d 249.   \n     The  ALJ  issued  an  opinion  finding  the  claimant  had  failed  to  prove  a  compensable  ankle \ninjury, apparently holding the ankle injury was idiopathic in nature. The Full Commission reversed \nthe ALJ, finding that the claimant had in in fact met her burden of proof in demonstrating the right \nankle injury was compensable in that it was “unexplained”, and not “idiopathic”.  \n     On appeal to the court of appeals the court affirmed the Full Commission’s opinion, finding \nthe claimant’s right ankle injury was “accidental” in nature, and “unexplained,” not “idiopathic.” \nThe court goes on to explain their reasoning in some detail , and to distinguish cases the appellant \nrespondents cited in support of their position the claimant’s right ankle injury was not “accidental”, \nnor  was  it  “unexplained”,  but  was  idiopathic  and,  therefore,  not  compensable  within  the  Act’s \nmeaning. White Cty. Med. Ctr., 646 S.W.3d at 250-251. The facts of the White Cty. Med. Ctr. case \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n9 \nare remarkably similar to the case at bar. Therefore, for the same reasons our court of appeals set \nforth  in White  Cty.  Med.  Ctr.,  supra,  I  am  bound  by  this  precedent  and  compelled  to  find  the \nclaimant  herein  has  met  his  burden  of  proof  in  demonstrating  his  right  ankle  injury  was \nunexplained, not idiopathic and, therefore, compensable within the Act’s meaning.   \n    The Act defines “temporary total disability” as the period of time within the healing period \nwhen  the  claimant  is  totally  incapacitated  from  earning  wages. Ark.  Code  Ann. Section  11-9-\n501(b) (2023 Lexis Repl.); Ark. State Highway Dep’t v. Breshears, 272 Ark. 244, 613 S.W.2d 392 \n(1981). The Act defines the “healing period” as, “that period for healing of an injury resulting from \nan accident.” Ark. Code Ann. Section 11-9-102(2) (2023 Lexis Repl.). Whether the healing period \nhas ended is a question of fact for the Commission to determine based on the evidence of record \nin each particular case. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (Ark. \nApp. 1995). An employee who has sustained a compensable injury is not required to offer objective \nmedical evidence in order to prove entitlement to TTD benefits. Ark. Health Ctr. V. Burnett, 2018 \nArk. App. 427, 558 S.W.3d 408 (Ark. App. 2018). Here the claimant has met his burden of proof \nin demonstrating he is entitled to TTD benefits from June 14, 2022 – the day after his compensable \nleft ankle injury – through November 17, 2022, the date his healing period ended and he was able \nto return to work.   \n   Therefore, for the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction of this claim.   \n \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n10 \n2. The stipulations contained in the prehearing order filed May 16, 2023, which the \nparties modified and affirmed on the record at the hearing, hereby are accepted \nas facts.   \n \n \n3. The claimant has met his burden of proof pursuant to the Act in demonstrating \nhe sustained a compensable injury to his left ankle on June 13, 2022. Therefore, \npursuant   to Ark.   Code   Ann.   Section   11-9-508   (2023   Lexis   Repl.),   the \nrespondents  are  responsible  for  payment  of  any  and  all  of  the  claimant’s \nreasonably  necessary  medical  treatment  including  but  not  limited  to  his  out-of \npocket expenses, related to his June 13, 2022, left ankle injury. \n \n4. The claimant has met his burden of proof in demonstrating he is entitled to \nTTD benefits from June 14, 2022, through the end of his healing period, \nNovember 17, 2022. \n \n5. The claimant’s attorney is entitled to a full statutory attorney’s fee based on the \ntotal amount of the controverted TTD benefits.   \n \n6. Pursuant to Ark. Code Ann. Section 11-9-411 (2023 Lexis Repl.), the \nrespondents are entitled to take a dollar-for-dollar credit/off-set based on any \nand all such benefits paid to or on the claimant’s behalf by any third-party \npayor(s).   \n \nAWARD \n \n      The respondents are hereby directed to pay benefits in accordance with the “Findings of Fact \nand Conclusions of Law” set forth above. All accrued sums shall be paid in lump sum without \ndiscount, and this award shall earn interest at the legal rate until paid pursuant to Ark. Code Ann. \nSection 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 \n(Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 (Ark. App. \n1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004), subject only to \nthe parties’ statutory appeal rights. \n\nJames E. Booth, AWCC No. 204537 \n \n \n \n11 \n          IT IS SO ORDERED. \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":19776,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204537 JAMES E. BOOTH, EMPLOYEE CLAIMANT WEYERHAEUSER NR CO., INC., EMPLOYER RESPONDENT WEYERHAEUSER NR CO., INC./SEDGWICK CLAIMS MG’T.Cindy SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 6, 2023 Hearing conducted on September 7, 2...","outcome":"granted","outcomeKeywords":["affirmed:1","modified:1","granted:4"],"injuryKeywords":["ankle","sprain","back"],"fetchedAt":"2026-05-19T22:59:07.423Z"},{"id":"alj-H302135-2023-12-06","awccNumber":"H302135","decisionDate":"2023-12-06","decisionYear":2023,"opinionType":"alj","claimantName":"Sherrie Hansen","employerName":"Tanners Team Sports, Inc","title":"HANSEN VS. TANNERS TEAM SPORTS, INC. AWCC# H302135 DECEMBER 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HANSEN_SHERRIE_H302135_20231206.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HANSEN_SHERRIE_H302135_20231206.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H302135 \n \nSHERRIE L. HANSEN, \nEMPLOYEE                                                                                                              CLAIMANT \n \nTANNERS TEAM SPORTS, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nRETAILERS CASUALTY INS. CO./ \nSUMMIT CONSULTING, LLC \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION FILED DECEMBER 6, 2023, \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \nHearing   conducted   on   Wednesday,   December   6,   2023, before  the  Arkansas  Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in \nLittle Rock, Pulaski County, Arkansas. \n \nThe  claimant,  Ms.  Sherrie  L.  Hansen,  pro  se,  of  Jessieville,  Garland  County,  Arkansas,  failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Michael E. Ryburn, The Ryburn Law Firm, \nLittle Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  conducted  on  Wednesday,  December  6,  2023,  to  determine  whether  this \nclaim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) \n(2023 Lexis Replacement) and Commission Rule 099.13 (2023 Lexis Repl.). \n The  respondents  filed  a  motion  to  dismiss  with  the  Commission  on  October  3,  2023, \nrequesting this claim be dismissed without prejudice for lack of prosecution. (Commission Exhibit \n1 at 7). In accordance with applicable Arkansas law the claimant was mailed due and proper legal \nnotice of the respondents’ motion to dismiss, as well as a copy of the hearing notice at her addresses \nof record via the United States Postal Service (USPS), First Class Certified Mail, Return Receipt \nrequested. Thereafter, the claimant never responded to the subject motion to dismiss; she did not \n\nSherrie E. Hansen, AWCC No. H302135 \n2 \n \nrequest  a  hearing,  nor  did  she  contact  and/or  try  to  contact  the  Commission  by  any  means  of \ncommunication; nor did she appear or cause anyone to appear on her behalf at the subject hearing.  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and/or attached thereto. (Comms’n Ex. 1). \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute her claim as required by the applicable statute and Commission rule.  \n Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law, \nrepresentations of the respondents’ highly credible counsel, and other relevant matters of record, I \nhereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1.   The Commission has jurisdiction of this claim. \n \n2.   After having received due and legal notice of the respondents’ motion to  \n   dismiss, as well as due and legal notice of the subject hearing, the claimant \n      neither responded to the motion in any way whatsoever, nor did she cause \n      anyone to respond to the subject motion on her behalf. In addition, the \n      claimant did not appear at the hearing, nor did she cause anyone to appear \n      at the hearing on her behalf. Therefore, she has waived her right to a hearing \n      on the respondents’ motion to dismiss.  \n \n3.   Moreover, the claimant has failed to prosecute her claim in any way \n      whatsoever, as to date she has neither requested a hearing nor has \n      she taken any action(s) whatsoever to pursue and/or to prosecute her claim. \n   \n4.   Therefore, the respondents’ motion to dismiss without prejudice filed with \n \n\nSherrie E. Hansen, AWCC No. H302135 \n3 \n \n the Commission on October 3, 2023, should be and hereby is GRANTED \n pursuant to both Ark. Code Ann. Section 11-9-702(a)(4) and Commission Rule \n 099.13 \n \n  Nothing in this opinion and order shall prevent or be construed to prevent the claimant or \nanyone acting with her authority and on her behalf from re-filing this claim so long as it is re-filed \nwithin the applicable deadlines specifically set forth in the Act. \n The  respondents  shall pay  the  court  reporter’s  invoice  within  twenty  (20)  days  of  their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5324,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302135 SHERRIE L. HANSEN, EMPLOYEE CLAIMANT TANNERS TEAM SPORTS, INC., EMPLOYER RESPONDENT RETAILERS CASUALTY INS. CO./ SUMMIT CONSULTING, LLC INSURANCE CARRIER/TPA RESPONDENT OPINION FILED DECEMBER 6, 2023, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT ...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:59:09.581Z"},{"id":"alj-H302325-2023-12-05","awccNumber":"H302325","decisionDate":"2023-12-05","decisionYear":2023,"opinionType":"alj","claimantName":"Alisha Berry","employerName":"Home Helpers Of Nwa","title":"BERRY VS. HOME HELPERS OF NWA AWCC# H302325 DECEMBER 5, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/BERRY_ALISHA_H302325_20231205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BERRY_ALISHA_H302325_20231205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H302325 \n \nALISHA BERRY, Employee CLAIMANT \n \nHOME HELPERS OF NWA, Employer RESPONDENT \n \nAMTRUST NORTH AMERICA, Carrier RESPONDENT \n \n \n \n OPINION FILED DECEMBER 5, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents   represented   by   WILLIAM   C.   FRYE,   Attorney   at   Law,   North   Little   Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On  September  7,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on June 19, 2023, and a Pre-hearing Order \nwas  filed  on  June  20,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on March 7, \n2023. \n 3. The claimant sustained a compensable injury to her right knee on March 7, 2023. \n By agreement of the parties the issues to litigate are limited to the following: \n\nBerry – H302325 \n \n-2- \n 1.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  March  10, \n2023, to June 4, 2023. \n 2.   Whether   Claimant   is   entitled   to   additional   medical   treatment   in   the   form   of \nprescription medication and physical therapy. \n 3. The Claimant’s weekly compensation rates. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n Claimant’s contentions are: \n“The claimant contends that she is entitled to temporary partial disability benefits \nfrom  March  8,  2023  through  March  15,  2023  and  temporary  total  disability \nbenefits from March 16, 2023 through a date yet to be determined. The  claimant \nfurther contends that her attorney is entitled to the statutory fee for such benefits.” \n \n Respondents’ contentions are: \n \n“The  Respondents  contend  that  work  was  made  available  to  the  claimant  from \nMarch  8,  2023  to  June  5,  2023.  At  that  time  Dr.  Coker  took  the  claimant  off \npending an evaluation by Dr. Miedema.” \n \n The claimant in this matter is a 43-year-old female who was employed by the respondent \non  March  7,  2023,  as  a  home  health  or  help  aid  when  she  sustained  a  compensable  right  knee \ninjury. In direct examination testimony the claimant described her general job duties as follows: \nQ What  were  you  doing  for  Home  Helpers?  What  was  your \njob assignment? \n \nA I  went  into  clients’  homes  and  if  they  needed  a  bath,  I \nhelped them with a bath. If they needed help to the toilet, I helped \nthem to the toilet. I folded their clothes, swept their floors, mopped \ntheir floors. \n The  last  client  that  I  had,  I  was  walking  with  him  through \nhis  house  for  daily  exercise.  I  hooked  up  his  oxygen  machine.  I \nlaid out food. Well, he had a feeding tube, so we would put liquid, \nhis medicine into it, and I brought it to him and his wife fed that to \nhim. \n Changed their sheets, dishes. \n \n\nBerry – H302325 \n \n-3- \nQ All right. \n \nA I mean that is just some of the stuff. \n \n The claimant would go and work in different respondent-client’s homes over the time she \nworked for the respondent. The claimant described her job assignment on March 7, 2023, and her \ncompensable right knee injury on direct examination as follows: \nQ And what assignment did you have on March 7\nth\n of 2023? \n \nA I  went  into  a  client’s  home  who  had  a  feeding  tube,  a \ntrachea. He couldn’t walk other than with a walker and his body \nhad been really weak. He didn’t have much strength. I would help \ntake  all  of  his  food  over  to  where  he  sat  and  ate  at.  And  I  would \nbring all of the – I think there was like five different cups of water \nfor him to brush his teeth and put his dentures in and stuff to fix his \nhair or comb it or whatever. He had a lot of different things. They \nwere  very  particular  on  what  all  he  needed  and  in  order  and \neverything was done in a timeline. \n \nQ Did  you  also  do  things  around  the  house,  housekeeping \ntype things? \n \nA Yes. I folded the laundry, swept the floor, steamed the floor \nevery day as well. I filled up their humidifiers. I opened their mini \nblinds so they would have light in the house. I did their dishes. \n \nQ All  right.  Would  you  briefly  describe  the  accident  that \noccurred on March 7\nth\n of 2023. \n \nA I was walking and slid on a mat. My right leg went forward \nand turned to the left and my left leg went up underneath me. \n \nQ What physical difficulties did you experience at that time? \n \nA It hurt and it was painful. \n \nQ What hurt? \n \nA I am sorry. My right knee. Sorry. \n \n\nBerry – H302325 \n \n-4- \n The  claimant  reported  her  injury  on  March  11,  2023,  and  was  seen  at  Baptist  Health \nWalk-In Clinic that same day. Following is a portion of that medical record: \nReason for Visit: \nKnee Pain (right) \nPatient’s had right knee pain worsening as the week goes on. She \nslipped and clients house a few days ago and fell in the kitchen. Its \nbeen getting worse in the mornings and much worse this morning. \nHurts to walk. Hurts to bend it. Feels swollen. She works in home \nhealth. \n \n*** \nAssessment/Plan \n1. Internal derangement of right knee (Primary) \n-   MRI   Knee   Right   WO   Contrast;   Future;   Expected   date: \n03/18/2023 \n- Ambulatory referral to Orthopedic Surgery \n \n2. Acute pain of right knee \n- XR Knee 3 Vw Right \n \n3. Effusion of bursa of right knee \n \n4. Fall on same level, initial encounter \n \nI  read  x-ray  and  discussed  with  patient.  I  am  concerned  about \ninternal  derangement  of  the  meniscus  and  the  medial  collateral \nligament   especially.   She   is   having   quite   a   bit   of   pain   with \nextension and flexion and walking. We will place her on crutches. \nDiscussed use. Do not want to immobilize in a has that will make it \nmore  stiff  and  swollen.  However  she  needs  to  avoid  bearing \nweight.  Needs  an  MRI  and  orthopedic  Surgeon.  She  will  inform \nher work. \n \n One March 22, 2023, the claimant underwent an MRI of her right knee at Baptist Health. \nFollowing is a portion of that diagnostic report signed by Dr. Jennifer Wood. \n1. Partial ACL tear or high-grade sprain \n2. Horizontal tearing of the posterior horn of the medial meniscus \n3.   Abnormal   appearance   of   the   posterior   horn   of   the   lateral \nmeniscus extending to the inferior articular cartilage (best seen on \nimage 21 of series 4) is also concerning for a tear. \n \n\nBerry – H302325 \n \n-5- \n On  March  28,  2023,  the  claimant  was  seen  at  Baptist  Health  by  orthopedic  surgeon  Dr. \nJeffrey Evans. Following is a portion of that medical record: \nChief Complaint \n- Knee Pain (Right Knee Pain) \n \n*** \nAssessment and Plan: \n1. Acute pain of right knee (Primary) \n- XR Knee 1 Vw Right \n \n2.   Sprain   of   anterior   cruciate   ligament   of   right   knee,   initial \nencounter \nAssessment & Plan \nMy  personal  reading  of  X-rays  of  right  knee  are  normal  and  MRI \nright  knee  shows  an  anterior  cruciate  ligament  tear  and  posterior \nhorn medical meniscus rear. \nContinue NWB on right leg with crutches. \nShe will file work comp claim. \nShe will need right knee arthroscopy for anterior cruciate ligament \nreconstruction and partial meniscectomy soon. \n \n3. Complex tear of medial meniscus of right knee as current injury, \ninitial encounter \nAssessment & Plan \nSee above. \n \n On  April  30,  2023,  the  claimant  went  to  the  emergency  department  at  Mercy  Hospital \nwhere the claimant continued to complain of pain and difficulties with her right knee. A portion \nof that emergency department record follows: \nMedical Decision Making \nDifferential   diagnosis   includes:   Cellulitis,   contact   dermatitis, \nhematoma, effusion, DVT, other \n \nThe  patient  is  a  42-year-old  female  with  history  of  recent  right \nknee  injury  resulting  in  a  medial  meniscus  tear  and  ACL  tear  that \npresents to the  emergency department  for evaluation of right knee \npain with overlying skin color changes. The patient’s examination \ndemonstrates  patient  has  rash  that  is  consistent  with  cellulitis \noverlying  the  right  knee  with  a  prepatellar  effusion,  no  additional \nacute significant abnormalities. Laboratory evaluation \n\nBerry – H302325 \n \n-6- \ndemonstrates  benign  laboratory  evaluation.  Imaging  studies  show \nknee  x-ray  shows  some  mild  soft  tissue  swelling  without  acute \nadditional   abnormal   findings   per   my   interpretation.   Doppler \nultrasound    right    lower    extremity    demonstrates    no    acute \nabnormality.    EKG    shows    not    performed.    Interventions    in \nemergency  department  included  patient  received  Toradol  for  pain \ncontrol  with  no  relief.  She  received  Dilaudid  and  Benadryl.  The \npatient  had  mild  improvement.  She  received  her  first  dose  of \nantibiotic  in  the  emergency  department.  Patient  was  discharged \nwith  oral  pain  pill  tablets  and  next  dose  of  Bactrim  as  she  cannot \nget her medications until the afternoon. The patient was prescribed \ncourse of Bactrim and additional pain medication. She was referred \nback  to  our  orthopedic  surgery  group  as  she  is  having  some \ndifficulty navigating the Workmen’s Comp follow-up  instructions \ndue  to  miscommunication.  The  patient  understands  close  return \nprecautions and is agreeable with outpatient management. \n \n The  claimant  then  began  to  treat  with  Dr.  Tom  Coker  at  Ozark  Orthopedics  on  May  5, \n2023. On May 5, 2023, Dr. Coker  examined the  claimant and reviewed her previous diagnostic \nresults regarding her right knee. \nHPI \n42-year-old  white  female  who  got  hurt  at  work  on  March  7  she \nslipped. She has a job that does not have sitdown duty apparently. \nShe  went  to  a  med  a  quick  type  facility  had  x-rays  which  I \nreviewed  look  normal  the  reports  normal.  Has  not  worked  since \nthat incident maybe about a week later she was sent elsewhere had \nother  x-rays  again.  I  have  some  x-rays  dated  that  look  like  what \nshe is talking about and they look normal and she has crutches she \nhas  been  almost  nonweightbearing  since  this  happened  because  it \nhurts is her pain is mostly medial with the initial  injury she is not \nreal  sure  the  mechanism  of  injury  but  could  have  been  a  twist  it \nwas  not  a  direct  blow  she  is  not  sure  but  did  not  hear  a  pop \nswelling  occurred  but  not  immediately  but  there  is  pain  with \nweightbearing pain with motion and now the pain is more diffuse. \nShe  had  an  MRI  done  which  I  reviewed  the  initial  report  says \nnormal MRI and there is an addendum to it where they state there \nmay be a torn lateral meniscus and a partial tear of the ACL. I have \nreviewed the MRI in my opinion the MRI is normal or  correct on \nthe first viewing but not the second. Her menisci do not have tears \nI believe they have some intrameniscal signal. The ACL is intact it \ncould  have  been  sprained  but  I  do  not  see  a  surgical  torn  ACL  in \nher. She is now 6 or 7 weeks out from her injury and is still unable \n\nBerry – H302325 \n \n-7- \nto  bear  weight  as  she  was  placed  in  a  knee  immobilizer  after  the \nMRI  I  believe  she  saw  an  orthopedic  surgeon  and  discussed  ACL \nreconstruction etc. After being placed in her knee immobilizer she \ndeveloped  a  cellulitis  when  to  the  ER  this  past  Sunday  and  was \nplaced  on  antibiotics  she  had  redness  swelling  medially  and  she \npartially  blames  it  on  that  knee  immobilizer  rubbing  it  I  am  not \nsure  but  it  does  not  sound  like  there  is  a  hematoma  from  the  first \ninjury  that  got  infected  and  it  may  have  just  been  a  superficial \ncellulitis.  She  has  not  been  treated  with  antibiotics  for  for  5  days \nand is resolving. \n \n The  claimant  underwent  a  second  MRI  of  the  right  knee  at  the  recommendation  of  Dr. \nCoker on May 22, 2023. The impression section states, “There is a bone contusion in the anterior \nmedial femoral condyle.” \n Dr. Coker again saw the claimant on June 5, 2023, with the benefit of having been able to \nreview her second right knee MRI. Following is a portion of his report: \nHPI \n42  Y  female  here  for  MRI  results  MRI  shows  normal  menisci \nnormal  ligaments  a  bone  contusion  medial  femoral  condyle.  She \nworks in healthcare take care of people she fell 3 months ago down \nin  Fort  Smith  she  was  seen  by  Fort  Smith  Dr.  And  a  second \nopinion  was  wanted  because  he  was  discussing  surgery  for  torn \nACL torn meniscus.  I  reviewed her old MRI did  not see that kind \nof  pathology  and  we  have  repeated  her  MRI  to  confirm  that  her \nmenisci are fine her ACL is intact she does not need surgery. What \nshe  has  now  are  mottled  skin  and  shiny  skin  hypersensitivity  to \ntough  numbness  to  the  toes  but  good  capillary  refill  and  signs \nconsistent  with  reflex  sympathetic  dystrophy.  We  discussed  the \nfact  that  she  has  no  surgical  problems  with  her  knee  but  her \ncontusion at work is because this RSD type of picture. Therefore I \nam going to recommend that she see a physical medicine and rehab \nphysician  we  have  1  or  2  in  our  group  with  Dr. Miedema  and  Dr. \nBJ Diana. He could all but so she could be followed up by whoever \nWorker’s Comp. wants her to see if there have a PMNR doctor in \nmind or a neurologist. This point was already started PT Sorg and \ncontinue  PT  until  they  can  be  further  evaluated  we  discussed  the \nfact  I  want  full  range  of  motion  full  weightbearing  and  offered \ncrutches.  Discussed  the  fact  that  this  is  RSD  the  treatment  is  a \nphysical therapy to regain mobility and then beyond that there may \nbe other treatments that  a physical medicine rehab her neurologist \n\nBerry – H302325 \n \n-8- \nmight  recommend.  This  is  not  an  orthopedic  surgical  problem  at \nthis  point  if  this  was  a  simple  fall  and  contusion  she  would  have \nalready  returned  to  work  but  we  have  this  other  diagnosis  that  I \nbelieve  is  work-related.  So  we  will  continue.  So  we  will  continue \nPT  until  she  has  had  a  change  to  make  arrangements  to  see  other \nmedical specialist thank you. \n \n*** \nAssessment/Plan \nAssessment  of  her  diagnosis  of  contusion  right  knee  she  may  be \nfull weightbearing full range of motion \n \n1. Body mass index 25-29 – overweight \nZ68.25; Body mass index (BMI) 25.0-25.9, adult \nBODY MASS INDEX: CARE INSTRUCTIONS \n \n2. Contusion of right knee \nS80.01XA: Contusion of right knee, initial encounter \nPHYSICAL    THERAPIST    REFERRAL –    Schedule    Within: \nprovider’s discretion. Note to Provider: Contusion w/RSD on right \nknee, full ROM, full strengthening, full weightbearing \n \n3. Complex regional pain syndrome type 1 \nReflex sympathetic dystrophy of right knee \nG90.521: Complex regional pain syndrome 1 of right lower limb \n \n On  the  recommendation  of  Dr.  Coker,  the  claimant  was  seen  by  Dr.  Mark  Miedema  at \nOzark  Orthopedics  on  June  14,  2023.  Dr.  Miedema  examined  the  claimant  and  provided  an \nassessment and plan as follows: \nAssessment/Plan \nODI 37 Completely disabled \n \n1. Pain of right knee joint \nMs.  Berry  presents  for  evaluation  of  About  3  months  right  knee \npain.  She  had  an  injury  at  work  in  March  which  precipitated  her \nsymptoms. She had a fall while at  work. She was not having pain \nprior to this injury. She saw Dr. Coker. She had a recent MRI. She \nhas been having to use crutches to get around. She has been going \nto PT. \n \n\nBerry – H302325 \n \n-9- \nShe  had  an  MRI  of  the  right  knee  at  Ozark  on  5/22/2023  which \nshowed a contusion of the anterior medial tibial condyle. M25.561: \nPain in right knee. \n \n2. Complex regional pain syndrome type 1 \nRight  lower  extremity  CRPS  type  1  after  a  fall  and  subsequent \nbony  contusion.  This  patient  qualifies  for  diagnosis  of  Complex \nRegional  Pain  Syndrome  (CRPS)  Type  1  based  on  the  Budapest \ncriteria  presenting  symptoms  of  allodynia  &  hyperalgesia,  with \nassociated  vasomotor/sudomotor  changes.  She  saw  Dr.  Coker  and \nthere is no surgical indication at this time. She has been doing PT \nwith   significant   ongoing   pain   and   functional   limitations.   She \ncannot bear weight on her right leg and has been ambulating using \ncrutches. \n \nI    would    like    her    to    continue    with    physical    therapy    for \ndesensitization,  strengthening  and  range  of  motion.  I  would  like \nher to stop gabapentin and I would recommend starting Lyrica for \nneuropathic  pain  50  mg  twice  a  day.  Would  also  recommend  she \nstart  Celebrex  200  mg  twice  a  day.  Vitamin  C  supplementation \ncould also be helpful. \n \nGiven the severity of the patient’s pain and functional limitation \nand no relief or inability to tolerate conservative measures, we will \nproceed  with  right  lumbar  sympathetic  block  for  diagnostic  and \ntherapeutic purposes. \n \nI  do  not  think  she  has  reached  maximum  medical  improvement.  I \ndo not think she can return to work at this time. \n \n The claimant was seen by PA Wesley McGehee on July 26, 2023, at Ozark Orthopedics. \nFollowing is a portion of that medical report: \nAssessment/Plan \nODI 37 Completely disabled \n \n1. Pain of right knee joint \nMrs.  Berry  presents  for  follow  up  evaluation  of  about  a  4  month \nhistory  of  right  knee  pain.  She  had  an  injury  at  work  in  March  of \n2023  which  precipitated  her  symptoms.  She  had  a  fall  while  at \nwork.  She  was  not  having  pain  prior  to  this  injury.  She  saw  Dr. \nCoker. She had a recent MRI. She has been having to use crutches \nto get around. Since her last visit with Dr. Miedema on 6/14/2023 \nshe has been taking the prescribed gabapentin pregabalin, Celebrex \n\nBerry – H302325 \n \n-10- \nand baclofen. She has also continued with the physical therapy for \ndesensitizing   techniques   and   attempts   of   improving   range   of \nmotion. She presents today to review her progress from her recent \nprocedure. \n \nShe  had  an  MRI  of  the  right  knee  at  Ozark  on  5/22/2023  which \nshowed a contusion of the anterior medial tibial condyle. \n \nOn my review of her 4 view lumbar radiographs taken at Ozark on \n7/26/2023   this   reveals   evidence   of   5   nonrib-bearing   lumbar \nvertebral  bodies.  Normal  osseous  alignment  is  noted.  There  is \nminimal evidence of degenerative disc height loss at L5-S1 slightly \nmore  progressed  at  L5-S1  comparatively.  No  listhesis  identified. \nNo acute fractures noted. M25.561: Pain in right knee. \n \n2. Complex regional pain syndrome type 1 \nRight  lower  extremity  CRPS  type  1  after  a  fall  and  subsequent \nbony  contusion.  This  patient  qualifies  for  diagnosis  of  Complex \nRegional  Pain  Syndrome  (CRPS)  Type  1  based  on  the  Budapest \ncriteria  presenting  symptoms  of  allodynia  &  hyperalgesia,  with \nassociated  vasomotor/sudomotor  changes.  She  saw  Dr.  Coker  and \nthere is no surgical indication at this time. She has been doing PT \nwith   significant   ongoing   pain   and   functional   limitations.   She \ncannot bear weight on her right leg and has been ambulating using \ncrutches. \n \nShe is s/p lumbar sympathetic nerve block on 7/3/23 with roughly \n40%  pain  relief  and  functional  improvement  But  for  only  a  short \ntime after this injection. \n \nShe  does  state  the  mottling  associated/skin  color  changes  in  her \nright  leg  did  improve  after  this  injection.  However,  she  still \ncontinues  with  significant  pain  and  functional  limitations.  Despite \nthe   continued   efforts   with   physical   therapy   and   taking   the \npregabalin  now  up  to  100  mg  twice  per  day.  Celebrex  200  mg \ntwice per day and baclofen 10 mg 3 times per day a needed. \n \nI  would  like  for  her  to  continue  this  medication  regimen  for  now. \nShe    should    also    continue    with    the    physical    therapy    for \ndesensitizing  techniques.  And  attempting  to  improve  her  rage  of \nmotion as much as tolerated. \n \nConsidering  she  did  have  some  improvement  especially  with  the \nskin changes in her right leg after the previous lumbar sympathetic \n\nBerry – H302325 \n \n-11- \nnerve  block  my  recommendation  is  that  we  proceed  to  repeat  this \nin hopes of more sustained relief. \n \nI  do  not  think  she  has  reached  maximum  medical  improvement.  I \ndo not think she can return to work at this time. We will extend her \nwork  excuse  out  until  she  follows  up  with  us  after  this  repeat \nlumbar sympathetic nerve block. \n \nWe  also  discussed  today  that  neuromodulation  could  be  a  good \ntreatment modality for her in the future. \n \nAdditionally,  I  did  obtain  lumbar  radiographs  today  to  assess  for \nany  significant  evidence  of  lumbar  spondylosis.  We  may  obtain  a \nlumbar MRI in the future depending on her response to the lumbar \nsympathetic nerve block. \n \nI  will  plan  to  follow-up  with  the  patient  after  this  procedure  to \nreassess their progress.  \nG90.521: Complex regional pain syndrome 1 of right lower limb. \nNERVE BLOCK, LUMBAR SYMPATHETIC (PROC) – Note to \nProvider: Right lumbar sympathetic nerve block 64520 \n \n3. Low back pain \nM54.50: Low back pain, unspecified \nL-SPINE 4 OR 5 VIEWS \n \n The final medical record introduced into evidence in this matter is a report by PA Wesley \nMcGehee from the claimant’s August 17, 2023, visit. A portion follows: \nAssessment/Plan \n1. Pain of right knee joint \nMrs.  Berry  presents  for  follow-up  evaluation  of  about  a  5  month \nhistory  of  right  knee  pain.  She  had  an  injury  at  work  in  March  of \n2023  which  precipitated  her  symptoms.  She  had  a  fall  while  at \nwork.  She  was  not  having  pain  prior  to  this  injury.  She  saw  Dr. \nCoker.  She  had  a  recent  MRI  of  the  right  knee.  She  has  been \nhaving  to  use  crutches  to  get  around.  Since  her  last  visit  with  Dr. \nMiedema   on   6/14/2023   she   has   been   taking   the   prescribed \npregabalin, Celebrex and baclofen. She has also continued with the \nphysical  therapy  for  desensitizing  techniques  and  attempts  of \nimproving  range  of  motion  as  well  as  exercises  for  her  lumbar \nspine.  She  presents  today  to  review  her  progress  from  her  recent \nprocedure and to discuss additional treatment options. \n \n\nBerry – H302325 \n \n-12- \nShe  had  an  MRI  of  the  right  knee  at  Ozark  on  5/22/2023  which \nshowed a contusion of the anterior medial tibial condyle. \n \nOn my review of her 4 view lumbar radiographs taken at Ozark on \n7/26/2023   this   reveals   evidence   of   5   nonrib-bearing   lumbar \nvertebral  bodies.  Normal  osseous  alignment  is  noted.  There  is \nminimal   evidence   of   degenerative   disc   height   loss   at   L5-S1 \notherwise  disc  space  heights  are  relatively  well-maintained.  Mild \nevidence  of  facet  arthropathy  noted  at  L4-5  and  L5-S1,  M25.561: \nPain in right knee. \n \n2. Complex regional pain syndrome type 1 \nRight lower extremity CRPS type 1 after fall and subsequent bony \ncontusion.   This   patient   qualifies   for   diagnosis   of   Complex \nRegional  Pain  Syndrome  (CRPS)  Type  1  based  on  the  Budapest \ncriteria  presenting  symptoms  of  allodynia  &  hyperalgesia,  with \nassociated  vasomotor/sudomotor  changes.  She  saw  Dr.  Coker  and \nthere is no surgical indication at this time. She has been doing PT \nwith   significant   ongoing   pain   and   functional   limitations.   She \ncannot bear weight on her right leg and has been ambulating using \ncrutches. \n \nShe is s/p lumbar sympathetic nerve block on 7/3/23 with roughly \n40% pain relief  and functional improvement but  only a short time \nafter this injection. \n \nShe  reported  during  her  follow  up  appointment  on  7/26/2023  that \nher skin mottling associated/skin color changes in her right leg did \nimprove after the initial injection. \n \nWe  therefore  proceeded  to  repeat  the  left  lumbar  sympathetic \nnerve block which was done on 8/3/2023 with a report of 40% pain \nrelief  but  for  only  4  days  after  the  injection.  She  states  the  repeat \ninjection  did  cause  numbness  surrounding  the  area  of  her  right \nknee. However, she states the injection did cause a flare in pain in \nher right hip progressing across her pelvis to her left side. \n \nShe  has  continued  working  with  physical  therapy  for  improving \nrange of motion and desensitization techniques. She also has been \nincorporating   exercises   for   her   lumbar   spine   as   previously \ninstructed. \n \nShe continues to utilize pregabalin 100 mg twice per day, Celebrex \n200  mg  once  per  day,  and  baclofen  10  mg  3  times  per  day  as \n\nBerry – H302325 \n \n-13- \nneeded.  She  request  refills  of  these  medications  which  I  will \nprovide. \n \nAt this point, I would recommend electrodiagnostic examination of \nthe   right   lower   extremity   to   further   elucidate   pathology   and \nevaluate  for  a  radiculopathy  verses  peripheral  nerve  entrapment \nversus peripheral neuropathy. \n \nShe is to continue to contemplate the option of neuromodulation. \n \nI do not yet think she has reached maximal medical improvement. I \ndo not think she can return to work at this time. We will extend her \nwork excuse out until she follows up with us to review the results \nof her electrodiagnostic study and the MRI of the lumbar spine.  \nG90.521: Complex regional pain syndrome 1 of right lower limb. \nELECTROMYOGRAM   +   NERVE   CONDUCTION   STUDY. \nNote  to  Imaging  Facility:  EMG/NCS  right  lower  extremity,  eval \nfor  peripheral  neuropathy,  peripheral  nerve  entrapment  vs.  lumbar \nradiculopathy. \nPregabalin  100  mg  capsule –  Take  1  capsule(s)  every  day  by  oral \nroute for 30 days. Qty: (30) capsule. Refill: 2. \nCelcoxib  200  mg  capsule –  Take  1  capsule(s)  every  day  by  oral \nroute for 30 days. Qty: (30) capsule. Refill: 2. \nBaclofen  10  mg  tablet –  Take  1  tablet(s)  3  times  a  day  by  oral \nroute as needed for 30 days. Qty: (90) tablet. Refill: 2. \nPharmacy: Hudson Pharmacy \n \n3. Lumbosacral radiculopathy \nWe  reviewed  the  minimal  to  mild  evidence  of  Mild  evidence  of \ndegenerative  disc  change  and  facet  arthropathy  identified  on  her \nlumbar radiographs obtained during her last visit. \n \nShe  has  been  working  with  physical  therapy.  She  has  significant \npain   and   functional   limitations.   She   has   not   improved   with \nconservative treatment measures thus far. \n \nIn  an  effort  to  rule  out  the  presence  of  any  significant  amount  of \ncentral  canal  stenosis  or  neuroforaminal  narrowing  I  do  think  it  is \nappropriate to proceed with obtaining an MRI of the lumbar spine. \nThe  results  of  this  advanced  imaging  could  help  further  tailor  our \ntreatment plan depending on what pathology this may reveal. \n \nI  will  plan  to  see  the  patient  back  to  review  the  results  of  the \nlumbar  MRI  and  her  electrodiagnostic  study  once  they  have  been \nperformed. \n\nBerry – H302325 \n \n-14- \nM54.17: Radiculopathy, lumbosacral region \nRADIOLOGIST  REFERRAL.  Schedule  Within:  provider’s \ndiscretion.   Note   to   Provider:   MRI   of   lumbar   spine   without \ncontrast. \n \n The claimant has asked the Commission to determine whether she is entitled to additional \nmedical treatment in the form of prescription medications and physical therapy. In review of the \nmedical  evidence  submitted  at  the  hearing  and  provided  to  the  claimant  by  multiple  physicians \nand  a  physician’s  assistant,  I  find  that  all  of  the  medical  treatment  regarding  prescription \nmedications  and  physical  therapy  for  the  claimant’s  compensable  right  knee  injury  to  be \nreasonable, necessary treatment for her compensable right knee injury. \n The  claimant  has  asked  the  Commission  to  determine  whether  she  is  entitled  to \ntemporary  total  disability  benefits  from  March  10,  2023,  to  June  4,  2023.  It  is  clear  from  the \nmedical records that the claimant was placed on crutches and to avoid bearing weight on March \n11, 2023, at her initial visit to Baptist Health Walk-In Clinic. The same restrictions continued on \nthe  claimant  through  different  medical  providers  well  past  the  claimant’s  June  4,  2023, \ntemporary total disability requested  end date. During the timeframe of March 10, 2023, to June \n4,  2023,  the  claimant  was  within  her  healing  period  and  placed  on  restrictions  of  no  weight \nbearing and was required to use crutches. \n The  respondent  called  Kimberly  Coffey  as  a  witness  in  this  matter.  Ms. Coffey  recently \nchanged her last name from Davison to Coffey due to marriage. Ms. Coffey is a hiring manager \nfor  the  respondent  and  managed  the  claimant’s  assignments  for  the  respondent.  It  is  the \nrespondent’s contention that the claimant had work made available to her for March 10, 2023, to \nJune 4, 2023, within her restrictions. Following is a portion of Ms. Coffey’s direct examination \ntestimony: \n\nBerry – H302325 \n \n-15- \nQ Okay.  Now,  after  she  was  hurt  and  you  all  got  the  light-\nduty slip, did you visit with her about coming back to work? \n \nA Yes, sir. \n \nQ Would you tell Judge Wells about that. \n \nA I  asked  her  if  she  could  come  back  to  work  on  a  limited \nbasis. \n \n*** \n THE WITNESS: Yes. She was asked to do some light duty, \nwhether or not she could go in and do the peri-care. She was asked \nif  she  could  take  him  his  toothbrush,  his  stuff  to  clean  up  with  in \nthe morning, to shave, to fix his hair, brush his teeth. Just general \nhygiene stuff. \n \nQ [BY  MR.  FRYE]  Okay.  Now,  she  had  a  sit-down.  Were \nthese things that she could do sitting down? \n \nA Yes, sir. She could sit down and do those. \n \nQ Okay. Now, let’s be clear. There were other people in the \nhouse, were there not, that could help with any other patient care? \n \nA Uh-huh. \n \nQ And who were those people? \n \nA It was Mr. Nguyen’s wife, which she did a lot of the care \nfor him, like his feeding tubes and everything. And Mr. Nguyen’s \ndaughter, who worked from home. I asked – \n \nQ Go ahead. \n \nA I did ask Ms. Berry if she would be able to do it just sitting \nin  a  chair  beside  his  bed  encouraging  him  to  do  his  exercise.  She \nsaid  that  she  was  unable.  I  asked  her –  because  she  said  she \ncouldn’t carry a cup, so I asked her, “Well, maybe Ms. Nguyen can \ncarry the cups for you or you could carry one cup at a time and set \nwith him while he does his morning routine.” \n \nQ Okay. \n \nA And she said that she was not able to do it. \n\nBerry – H302325 \n \n-16- \n \nQ All right. About how many – I know this started in March. \nAbout  how  many  times  did  you  contact  her  about  maybe  coming \nback to work? \n \nA I contacted her several times. \n \nQ And then after the deposition, did you also again reach out \nto her? \n \nA I did. \n \nQ Tell me about that situation. \n \nA We  had  a  client  that  he  was  a  younger  man,  all  he  wanted \nto  do  was  sit  at  his  table  and  play  games,  talk  to  someone,  just \nwanted  companionship.  It  was  more  of  a  respite  type  situation  so \nthat  his  mother  would  have  a  little  bit  of  time  to  herself  to  do \nwhatever she needed to do. \n It wasn’t my knowledge, but when I called her and asked \nthe  mother  if  it  was  okay,  that  she  come  out,  the  mother  told  me \nthat he had just had surgery on his arm and that he could be a fall \nrisk  and  that  she  would  prefer  someone  who  was  more  stable  on \ntheir feet. \n \nQ Okay. Did you make an offer of another job at that time? \n \nA I  asked  her  if  she  would  like  to  go  back  to  Mr. Nguyen  or \nsomeone  else  where  she  was  basically  sitting  down,  where  there \nwere other people in the house, and she did decline. \n \n Ms.  Coffey  was  cross  examined  by  the  claimant’s  attorney  about  the  offers  of  light  or \nrestricted duty work the respondent alleges they made to the claimant as follows: \nQ Okay.  Now,  this  job  that  you  could  do  just  sitting  down, \nwould  that  entail  or  having  her  to  get  in  the  car  and  drive  to  the \nplace? \n \nA Yes, sir. \n \nQ And would it require to walk from the car to the place? \n \nA Yes, sir. \n \n\nBerry – H302325 \n \n-17- \nQ And would it require her to walk in the house? \n \nA Yes, sir. \n \nQ So  she  wasn’t  just  sitting  there.  She  wouldn’t  just  be \nautomatically sitting there at a table and giving him a cup. There is \nother  things  that  would  involve  moving  around  and  movement \ninvolved; is that correct? \n \nA Once  she  got  to  the  house,  her  limitation  would  be –  her \nmovement would be very limited. \n \nQ Well,   it   might   be   limited,   but   there   would   be   some \nmovement? \n \nA Of course. \n \nQ The  fact  that  she  is  using  crutches  to  move  around,  would \nthat interfere with doing some of this stuff? \n \nA Not in my opinion. I have been on crutches several times. I \ntore my knees before so I have been on crutches and I know what it \nfeels like and I know what I did. I know what I was able to do. \n \nQ So you are just saying just gut it out and do what you’ve \ngot to do? \n \nA Well, if you are on crutches, you are not putting any weight \non your knee. \n \nQ But you are just saying do what you’ve go to do? \n \nA If you are wanting a paycheck, you have to do some – \n \nQ If the doctor says you need to just do certain things, not do \ncertain things, you have got to decide whether you want to get paid \nor whether you want to not do those things; is that right? \n \nA Of course. But just like  you would be  at home,  you would \nbe getting up, going to the restroom, getting yourself something to \ndrink. \n \nQ Sure.  Well,  you  might  be.  You  might  be  lucky  enough  to \nhave someone at least bring you something to drink. \n \n\nBerry – H302325 \n \n-18- \nA If you are very lucky, yes. \n \nQ Okay.  Now,  this  other  job  that  you  offered  her  or  these \nfrequent jobs that you offered her, she just flat turned them down? \n \nA Yes, sir. \n \nQ And you thought they were within her limitations? \n \nA Yes, sir. \n \nQ Did she tell you she turned them down because she didn’t \nthink they were? \n \nA She did. \n \n On direct examination, the claimant testified about an offer of light duty  work extended \nto her by the respondent as follows: \nQ Now, during your period of treatment, did the Respondents \never offer to return you to light duty? \n \nA Can you repeat the question? \n \nQ Did  they  ever  offer  to  provide  you  a  job  within  your \nmedical restrictions? \n \nA Has work offered to do that? \n \nQ Yes. \n \nA The only time work offered to do that was the day after the \ndeposition, I got a call. \n \nQ All right. And did you – what happened with that? \n \nA So I got a call and I think I was told – I don’t know if it was \nfour  or  four  and  a  half  hours,  three  days  a  week  for  a  gentleman \nand all I would have to do is board games and puzzles because his \nmom takes care of everything else. \n  \n Within that same hour, I got a call back from Ms. Kim over \nhere  telling  me  that  he  had  to  have  arm  surgery  and  he  needed \nmore assistance like using the bathroom and taking a shower. And \n\nBerry – H302325 \n \n-19- \nI asked her how  I was supposed to do that when I am on crutches \nand it says light duty and she goes, “I don’t know. You can’t.” \nThat is what happened. \n \nQ Did  they  offer  you  another  job  after  that,  something  after \nthat? \n \nA No.  I  have  never  heard  back  from  them  about  doing  any \nother job. But then after that, I was taken completely off of work at \nsome point. \n \nQ Okay.  During  this  period  of  time,  how  has  your  condition \nchanged  or  been?  Has  it  gotten  any  better,  gotten  any  worse  or \nstayed the same? \n \nA My condition has gotten worse. \n \n Here,  the  respondent  witness,  Ms.  Coffey,  in  her  direct  examination  testimony  states, \n“She was asked if she could take him his toothbrush, his stuff to clean up with in the morning, to \nshave,  to  fix  his  hair,  brush  his  teeth.  Just  general  hygiene  stuff.”  Ms.  Coffey  testified  that  she \ncould  perform  these  duties  sitting  down.  However,  I  find  it  unreasonable  to  say  a  job  could  be \ndone in a seated position when you are taking hygiene products to someone. Ms. Coffey further \ntestified that other people were in the home and could help with other patient care. This included \nthe  client’s  wife  and  daughter,  whom  to  my  knowledge  are  not  employees  of  the  respondent. I \nfind it unreasonable to expect the claimant to perform job duties in a physically restricted manner \nby  relying  upon  the  charity  of  others  who  are  not  employed  by  the  respondent.  The  respondent \ndid not provide work within the claimant’s restrictions during the period of time from March 10, \n2023, to June 4, 2023. \n The  claimant’s  restrictions  were  placed  upon  her  on  March  11,  2023,  regarding  her \ncompensable  right  knee  injury  and  she  continued  in  her  healing  period  beyond  June  4,  2023. \nDuring  that  period  work  within  her  restrictions  was  not  made  available  to  her.  As  such,  she  is \n\nBerry – H302325 \n \n-20- \nentitled  to  temporary  total  disability  benefits  from  March  11,  2023,  until  June  4,  2023,  for  her \ncompensable right knee injury. \n The parties were unable to agree on the claimant’s compensation rates and have asked the \nCommission  to  determine  those  rates  for  them.  Respondent  Exhibit  1  is  a  collection  of  payroll \nrecords  beginning  March  5,  2022,  and  going  to  March  3,  2023;  from  and  including  Saturday \nMarch  5,  2022,  to  and  including  Friday  March  3,  2023,  there  are  364  days  or  52  weeks.  Each \npayroll record indicates gross earnings for that given period. As such, all gross earnings for that \ntime  period  were  added  together  for  a  total  of  $22,476.61.  That  number  was  divided  by  52 \nweeks,  making  an  average  weekly  wage  of  $432.24.  As  to  the  claimant’s  temporary  total \ndisability  rate,  it  is  set  at  $288.00  as  $288.15  is  66-2/3%  of  $432.24,  the  claimant’s  average \nweekly wage. As to the claimant’s permanent and partial disability rate, it is set at $216.00, as it \nis 75% of the claimant’s $288.00 temporary total disability rate. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJune 19, 2023, and contained in a Pre-hearing Order filed June 20, 2023, are hereby accepted as \nfact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \ntemporary total disability benefits from March 11, 2023, to June 4, 2023.  \n\nBerry – H302325 \n \n-21- \n3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nadditional medical treatment in the form of prescription medications and physical therapy for her \ncompensable right knee  injury ordered by medical providers contained in the records submitted \ninto evidence in this matter.  \n4. The claimant has proven by a preponderance of the evidence that her average weekly \nwage  is  $432.24,  her  temporary total  disability  rate  is  $288.00,  and  her  permanent  partial \ndisability rate is $216.00. \n5.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  her  attorney  is \nentitled to an attorney’s fee in this matter.  \n ORDER \nThe  respondents  shall  pay  for  medical  treatment  regarding  prescription  medications  and \nphysical therapy for the  claimant’s compensable  right knee injury, including reimbursement  for \nany out-of-pocket expenses.  \nThe  respondents  shall  pay  the  claimant  temporary  total  disability  from  March  11,  2023, \nto June 4, 2023, at the temporary total disability rate of $288.00.  \nThe respondents shall pay to the claimant's attorney the maximum statutory attorney's fee \non the benefits awarded herein, with one half of said attorney's fee to be paid by the respondents \nin addition to such benefits and one half of said attorney's fee to be withheld by the respondents \nfrom such benefits pursuant to Ark. Code Ann. §11-9-715. \n All  benefits  herein  awarded  which  have  heretofore  accrued  are  payable  in  a  lump  sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \n\nBerry – H302325 \n \n-22- \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":42005,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H302325 ALISHA BERRY, Employee CLAIMANT HOME HELPERS OF NWA, Employer RESPONDENT AMTRUST NORTH AMERICA, Carrier RESPONDENT OPINION FILED DECEMBER 5, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claima...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["knee","sprain","back","lumbar","hip"],"fetchedAt":"2026-05-19T22:59:03.278Z"},{"id":"alj-G901020-2023-12-05","awccNumber":"G901020","decisionDate":"2023-12-05","decisionYear":2023,"opinionType":"alj","claimantName":"Cheryl Rentner","employerName":"United Parcel Service, Inc","title":"RENTNER VS. UNITED PARCEL SERVICE, INC. AWCC# G901020 DECEMBER 5, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/RENTNER_CHERYL_G901020_20231205.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RENTNER_CHERYL_G901020_20231205.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G901020 \n \nCHERYL RENTNER, Employee        CLAIMANT \n \nUNITED PARCEL SERVICE, INC., Employer      RESPONDENT \n \nLIBERTY MUTUAL GROUP, Carrier/TPA    RESPONDENT \n \n \n OPINION FILED DECEMBER 5, 2023  \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n       \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondent represented by DAVID C. JONES, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \n On April 22, 2019, the claimant’s attorney, Evelyn E. Brooks, filed an AR-C requesting \nvarious  compensation  benefits,  alleging  injuries  to  her  right  upper  extremity  and  wrist  on  or \nabout  February  11,  2019.  The  claim  was  accepted  as  compensable,  and  the  claimant  began  to \nreceive treatment. \n On or about April 20, 2021, the claimant underwent carpal tunnel surgery at the direction \nof  Dr.  James  Kelly.  The  claimant  was  released  to  return  to  work  by  Dr.  Kelly  as  of  June  15, \n2021, in a regular-duty capacity with no restrictions, and was assigned a 10% impairment rating, \nwhich was paid out as of January 13, 2022. \n In   June   2022,   defense   counsel   and   the   claimant’s   counsel   exchanged   various \ncorrespondence  concerning  the  claimant’s  work  status  and  potential  dismissal  issues  on  the \nclaim.  In  early  August  2022,  the  parties  reached  settlement  terms  to  try  and  amicably  close  out \n\nRentner – G901020 \n \nthe claim. A joint petition settlement was scheduled on this claim for August 30, 2022, but was \ncancelled  based  on  the  claimant  not  wishing  to  proceed  with  settlement  because  of  collateral \nissues.  Throughout  the  fall  of  2022  and  spring  of  2023,  defense  counsel  and  the claimant’s \ncounsel continued to discuss the issues and options for potential litigation. However, the parties \nwere unable to resolve the issues based on collateral factors unrelated to the current claim. \n No hearing or further action has been taken in regard to this claim. \n On August 18, 2023, the respondents filed a Motion to Dismiss requesting that this claim \nbe  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for  October  3,  2023.  Notice  of \nthat  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on  August  30, \n2023.  United  States  Postal  Department  records  indicate  that  claimant  received  the  notice  on \nSeptember  21,  2023.  Despite  having  received  notice  of  the  hearing,  as  well  as  engaging  in  an \nextensive  conversation  with  Ms.  Brooks  urging  her  to  attend  the  hearing,  the  claimant  did  not \nappear, nor did she contact the Commission in any manner.  \nAfter  a  review of  the  respondents’  Motion  to  Dismiss,  the  claimant’s lack  of  response \nthereto,  and  her  failure  to  appear  at  the  scheduled  hearing,  as  well  as  all  other  matters  properly \nbefore  the  Commission,  I  find  that  the  respondents’  Motion  to  Dismiss  should  and  hereby  is \ngranted pursuant to Commission Rule 099.13. This dismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n  \n\nRentner – G901020 \n \n IT IS SO ORDERED.    \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":3900,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G901020 CHERYL RENTNER, Employee CLAIMANT UNITED PARCEL SERVICE, INC., Employer RESPONDENT LIBERTY MUTUAL GROUP, Carrier/TPA RESPONDENT OPINION FILED DECEMBER 5, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["wrist","carpal tunnel"],"fetchedAt":"2026-05-19T22:59:05.355Z"},{"id":"alj-H205999-2023-12-04","awccNumber":"H205999","decisionDate":"2023-12-04","decisionYear":2023,"opinionType":"alj","claimantName":"Helen Peaster","employerName":"City Of Little Rock","title":"PEASTER VS. CITY OF LITTLE ROCK AWCC# H205999 DECEMBER 4, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Peaster_Helen_H205999_20231204.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Peaster_Helen_H205999_20231204.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H205999 \n \n \nHELEN D. PEASTER, EMPLOYEE CLAIMANT \n \nCITY OF LITTLE ROCK, \n SELF-INSURED EMPLOYER RESPONDENT \n \nRISK MGMT. RESOURCES, \n THIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED DECEMBER 4, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on November 29, 2023, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Ms.  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    Claimant  gave  testimony  at  the  hearing.    The  evidentiary  record \nconsists  not  only  of  that  testimony,  but  also  of  Commission’s  Exhibit  1,  forms, \npleadings,  and  correspondence  related  to  this  claim,  consisting  of  12  numbered \npages; and Respondents’ Exhibit 1, forms, pleadings, and correspondence related \nto this claim, consisting of one index page and 16 numbered pages thereafter. \n The record reflects the following procedural history:  Per the First Report of \nInjury or Illness filed on  August 25, 2022, Claimant  suffered  an injury  to her right \nelbow  on  April  13,  2022,  while  using  a  sledgehammer  at  work.    As  they \nacknowledged at the hearing, Respondents accepted the claim as a medical-only \n\nPEASTER – H205999 \n \n2 \none  and  paid  benefits  pursuant  thereto.   On  August  22,  2022,  Claimant  filed  a \nForm AR-C  in  connection  with  this  matter.    Therein,  she  requested  temporary \npartial,  temporary  total,  and  permanent  partial  disability  benefits,  along  with \npayment of medical expenses. \n Also  on  August  22,  2022,  Claimant  requested  a  one-time  change  of \nphysician  to  Dr.  Brian  Norton.    In  an  order  entered  on  September  26,  2022,  the \nMedical Cost Containment Division granted the request and scheduled her for an \nappointment with Norton for October 5, 2022. \n Respondents on September  20,  2023,  moved  for  a  dismissal  of  the  claim \nwithout  prejudice  under  AWCC  R. 099.13  and  Ark.  Code  Ann.  § 11-9-702  (Repl. \n2012)  because  of,  inter  alia,  Claimant’s  alleged  failure  to  make  a  bona  fide \nhearing  request  within  the  previous  six  months.    My  office  wrote  Claimant on \nSeptember  21,  2023,  asking  for  a  response  to  the  motion  within 20  days.    The \nletter was sent via first-class and certified mail to the address for Claimant listed in \nthe  file.    Someone  with  an  illegible  signature  signed  for  the  letter  on  September \n26,  2023;  and  the  first-class  letter  was  not  returned.    Nonetheless,  no  response \nfrom Claimant was forthcoming. \n On  October  12,  2023,  I  scheduled  a  hearing  on  the  Motion  to  Dismiss  for \nNovember 29, 2023, at 11:00 a.m. at the Commission in Little Rock.  The Notice \nof Hearing was sent to the parties by first-class and certified mail; and as alluded \nto above, both appeared before me at the appointed time.  I note that the certified \nmail  receipt  for  Claimant,  dated  October  17,  2023,  bears  a  similar  illegible \n\nPEASTER – H205999 \n \n3 \nsignature to the one for the 20-day letter; and she confirmed receipt of the hearing \nnotice.  Respondents asked for dismissal of the claim without prejudice under Ark. \nCode Ann. § 11-9-702(d) (Repl. 2012) and AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The parties  were  provided  reasonable  notice  of  the   Motion  to \nDismiss and of the hearing thereon under AWCC R. 099.13. \n3. The Commission is authorized to dismiss claims lacking a justiciable \nissue pursuant to AWCC R. 099.13. \n4. This  claim  should  be,  and  hereby  is,  dismissed without  prejudice \npursuant  to  AWCC  R.  099.13  because  of  the  lack  of  a  justiciable \nissue. \n5. Because of  the above  finding,  Ark.  Code  Ann. § 11-9-702(d)  (Repl. \n2012) will not be addressed. \nIII.  DISCUSSION \n Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: \n \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation,  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \n\nPEASTER – H205999 \n \n4 \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof the claim within the limitation period specified in subsection (b) of \nthis section. \n \nIn addition, AWCC R. 099.13 provides in relevant part: \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n The  Arkansas  Court  of  Appeals  in Johnson  held  that  a  claim  could  be \ndismissed  for  lack  of  prosecution  based  on  the  fact  that  there  is  no  justiciable \nissue.    The  authority  for  doing  so  comes  under  Rule  13,  which  the  Commission \npromulgated  under  Ark.  Code  Ann.  §  11-9-205(a)(1)(A)  (Repl.  2012).    This \nprovision  authorizes it  “[t]o  make  such  rules  and  regulations  as  may  be  found \nnecessary[.]”  See Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d \n562  (1969); Johnson, supra.   Contra  Dillard v.  Benton  Cty.  Sheriff’s  Off.,  87 Ark. \nApp. 379, 192 S.W.3d 287 (2004)(“Rule 13 . . . allows a dismissal . . . pursuant to \nArk.  Code  Ann.  §  11-9-702(b)(4),  the  portion  of  the  statute  relating  to  additional \nbenefits”).    Certainly,  such  a  claim  could  be  re-filed  if  a  justiciable  issue  arises, \nprovided that all other prerequisites for a cognizable claim are met. \n At  the  hearing,  Claimant  during  her  testimony  conceded  that  there  are  no \njusticiable  issues at  present  regarding  this  claim.    More  importantly,  she  testified \n\nPEASTER – H205999 \n \n5 \nthat she has received all benefits that she was seeking under the claim and does \nnot object to its dismissal. \n I credit Claimant’s testimony.  Under Johnson, supra, this claim should thus \nbe dismissed under Rule 13 due to the lack of ripeness.  Because of this finding, it \nis unnecessary to address the application of § 11-9-702(d). \n That, however, leaves the question of whether the dismissal should be with \nor without prejudice.  The Commission possesses the authority to dismiss claims \nwith  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co.,  23  Ark. App.  137,  744 \nS.W.2d  402  (1988).    This  includes  claims  dismissed  under  Rule  13.   Johnson, \nsupra.  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS 5 10, the Commission \nwrote:    “In  numerous  past  decisions,  this  Commission  and  the  Appellate  Courts \nhave   expressed   a   preference   for   dismissals   without   prejudice.”      (citing \nProfessional  Adjustment  Bureau  v.  Strong,  75  Ark. 249, 629  S.W.2d  284  (1982); \nHutchinson  v.  North  Arkansas  Foundry,  Claim  No.  D902143  (Full  Commission \nOpinion  filed  October  23,  1991)).    In  light  of  this  preference,  along  with  facts  of \nthis case and Respondents’ agreement that dismissal should be without prejudice, \nthe dismissal of this claim is hereby without prejudice.\n1\n \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n \n\nPEASTER – H205999 \n \n6 \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove,  the  Motion  to  Dismiss  is  hereby  granted,  and  this  claim  is  hereby \ndismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":8295,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H205999 HELEN D. PEASTER, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, SELF-INSURED EMPLOYER RESPONDENT RISK MGMT. RESOURCES, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED DECEMBER 4, 2023 Hearing before Administrative Law Judge O. Milton Fine II on November 2...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:59:01.171Z"},{"id":"alj-H304175-2023-11-30","awccNumber":"H304175","decisionDate":"2023-11-30","decisionYear":2023,"opinionType":"alj","claimantName":"Redis Bonds","employerName":"Laidlaw, Inc","title":"BONDS VS. LAIDLAW, INC. AWCC# H304175 NOVEMBER 30, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BONDS_REDIS_H304175_20231130.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BONDS_REDIS_H304175_20231130.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H304175 \n \nREDIS D. BONDS, EMPLOYEE        CLAIMANT \n \nLAIDLAW, INC., EMPLOYER                RESPONDENT \n \nBRIDGEFIELD CASUALTY INS. CO.,/ \nSUMMIT CONSULTING, LLC., CARRIER/TPA           RESPONDENT \n \n \nOPINION FILED 30 NOVEMBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe, 29 November 2023, Little Rock, Pulaski County, Arkansas. \n \nThe pro se claimant waived appearing. \n \nMr.  Guy Alton Wade,  Attorney-at-Law  of  Little  Rock,  Arkansas,  appeared for  the \nrespondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 29 November 2023. This case relates to a workplace injury sustained on \n8 September 2022. A Form AR-C was first filed with the Commission on 30 June 2023 \nclaiming eye injuries associated with glass cleaner splashing in the claimant’s eye. A Form \nAR-2 was filed with the Commission on 25 July 2023, accepting the medical-only claim. \n On 5 October 2023 the Commission received a letter motion from the respondents, \noriginally dated 1 August 2023, requesting that this matter be dismissed. The claimant sent \na letter, dated 10 October 2023, to the Commission in response to notice of that Motion \nindicating that she did not object to the dismissal and that she was not requesting a hearing \non any issues relating to her claim. A copy of that letter was included in the documents \npresented by the respondents at the hearing on their immediate motion. As argued by the \nrespondents,  the  file  reflects  no  request  for  a  hearing  on a claim  in  the  relevant  time \n\nR. BONDS- H304175 \n2 \n \npreceding the filing of that Motion. Notice of that motion and notice of the hearing on that \nMotion  were  sent  to  the  address  provided  by  the  claimant, and  the claimant chose  not to \nappear  to  resist  the Motion  to Dismiss this  action. (The  claimant  did,  however,  express \nthanks  to  the  respondents  in  her  letter  for  assisting  her  in  seeking  treatment  for  her  eye \ntroubles.) The  respondents  appeared,  presented  their Motion,  and  offered  supporting \nevidence into the record. \n Arkansas Code  Annotated §  11-9-702(a)(4)  states  that  a  matter  may  be  dismissed \nwithout prejudice after six (6) months without a bona fide request for a hearing. Commission \nRule 099.13 provides for  a  dismissal  for  failure  to prosecute  an  action upon  application  by \neither  party. Based on the record, available evidence, the arguments of the respondents’ \ncounsel, and  the  notice  from  the  claimant  of  her  not  objecting  to  the  dismissal  without \nprejudice, I  find  that  the respondents’ Motion  to  Dismiss  should  be  granted  and  that  the \nmatter should be dismissed without prejudice. \nVI.  ORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3082,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H304175 REDIS D. BONDS, EMPLOYEE CLAIMANT LAIDLAW, INC., EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INS. CO.,/ SUMMIT CONSULTING, LLC., CARRIER/TPA RESPONDENT OPINION FILED 30 NOVEMBER 2023 Heard before Arkansas Workers’ Compensation Commission (AWCC) Admi...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:58.963Z"},{"id":"alj-H204710-2023-11-30","awccNumber":"H204710","decisionDate":"2023-11-30","decisionYear":2023,"opinionType":"alj","claimantName":"Alice Lawrence","employerName":"Searcy County Judge","title":"LAWRENCE VS. SEARCY COUNTY JUDGE AWCC# H204710 NOVEMBER 30, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//LAWRENCE_ALICE_H204710_20231130.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LAWRENCE_ALICE_H204710_20231130.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H204710 \n \nALICE E. LAWRENCE, Employee                                                     CLAIMANT \n \nSEARCY COUNTY JUDGE, Employer            RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, Carrier                                              RESPONDENT \n \n \n OPINION FILED NOVEMBER 30, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Harrison, Boone County, \nArkansas. \n \nClaimant represented by NEAL L. HART, Attorney, Little Rock, Arkansas. \n \nRespondents represented by JASON M. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On October 26, 2023, the above captioned claim came on for a hearing in Harrison, Arkansas.  \nA pre-hearing conference was conducted on August 3, 2023, and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.  The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.  The employee/employer/carrier relationship existed on June 16, 2022. \n            3.  The  compensation  rates  are  $413.00  for  temporary  total  disability  and  $310.00 for \npermanent partial disability.   \n Before testimony began at the hearing, the parties also announced two additional stipulations: \n 4.    An accident occurred on June 16, 2022, and respondents have accepted a left leg injury. \n\nLawrence-H204710 \n2 \n \n 5.      Temporary total disability payments were paid through March 2, 2023, and there have \nbeen no temporary total disability payments since that date.  \n            At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Compensability regarding claimant’s back injury. \n            2.  If compensable, whether claimant is entitled to medical treatment. \n            3.  Whether claimant is entitled to temporary total disability benefits. \n            4.  Attorney’s fees. \n The parties requested that the third issue be modified to read “whether claimant is entitled to \nadditional temporary total disability benefits for a back injury, a leg injury, or both.   \n All other issues are reserved by the parties. \n The claimant contends that “She suffered a compensable injury to her left lower extremity, \nlow back, and other body parts after she was run over by a garbage truck at work. The low back was \nand  is,  at  the  very  least,  an  aggravation  of  a  preexisting  condition, and is, therefore, respondents’ \ncontinued responsibility, for medical care purposes, payment of indemnity benefits, and for any and \nall other benefits related thereto and allowed by the Act. The workers’ compensation doctor is Justin \nCutler,  D.O.,  a  Harrison orthopedic surgeon. While respondents continue to pay for Dr. Cutler’s \nmedical care, they have denied at least two of his treatment recommendations, namely a C-brace for \nclaimant’s leg and a referral to pain management for left lower extremity pain.  This  constitutes \nreasonable,  necessary,  and  related  medical  care,  and  respondents  should  be  required  to  provide  it. \nClaimant continues to treat with Dr. Cutler at respondent’s expense; she remains in a healing period \nand in an “off work” capacity secondary to her various injuries; at least one of her injuries is scheduled; \nand she has not returned to work. She is, therefore, entitled to an award of additional temporary total \ndisability  benefits  from  the  date  last  paid  (approximately  May  10,  2023)  through a  date  to  be \n\nLawrence-H204710 \n3 \n \ndetermined. Claimant’s counsel is entitled to payment of a statutory attorney’s fee on all controverted \nindemnity benefits. Claimant respectfully reserves the right to amend and/or otherwise alter the above \ncontentions as discovery progresses. All other potential issues are expressly reserved for litigation at a \nlater date including, but not necessarily limited to, anatomical impairment, permanent total disability, \nwage-loss disability, vocational rehabilitation, Section 11-9-505(a) benefits, and any other additional \nbenefit allowed by law. This is a claim for additional compensation, and claimant renews her request \nfor  an  award  of  any  and  all  benefits to which she may be entitled, under the Arkansas Workers’ \nCompensation Act.” \n The respondents contend that “The claimant’s left lower extremity was accepted, and all \nappropriate benefits have been paid. The claimant’s back condition is preexisting and there is no \nobjective evidence to support a compensable injury to the lower back. The treatment suggested by \nDr. Cutler is for the back and symptoms related to the back. The claimant’s period of disability, if \nthere is one, is related to her back which is not compensable.” \n After the entry of the prehearing order, respondents filed a motion for an independent medical \nexamination (IME), said motion being filed on September 28, 2023.  Claimant objected on September \n29, 2023.  \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe her demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n3, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact, as are \n\nLawrence-H204710 \n4 \n \n \nthe stipulations announced at the beginning of the hearing. \n 2.  Respondents’ motion for an independent medical examination is granted. \n 3.   This matter will be held in suspense pending the completion of the independent medical \nexamination. \n FACTUAL BACKGROUND \n As set forth above, the hearing on the motion by respondents for an IME and the claimant's \ncase in chief were combined. The parties were advised that if I determined that an IME was reasonable \nand necessary, no decision would be rendered on the other issues presented. If I decided that the IME \nwas not reasonable and necessary, then a decision on those issues would be rendered.  Neither party \nobjected to this manner of handling this matter.   \nHEARING TESTIMONY \n \n Claimant was the only witness at the hearing. She gave a detailed vocational history, including \ndescribing  the  physical  requirements  of  the  jobs  that  she  had  worked  following  her  high  school \ngraduation in 1996. She also described the requirements of the job that she was doing with respondent, \nSearcy County, prior  to  her  accident  on  June  16,  2022.  On  June  16,  2022, she  was  performing her \nnormal job of picking up trash. She had gotten out of the F-350 truck to shut the back doors of the \ncage that is built onto the truck. As she was out of the vehicle, another truck pulled behind the one \nthat  she  had  exited  and  honked  its  horn.  The  driver  of  the  vehicle  in  which  she  was  riding  pulled \nforward, hitting her and knocking her in front of the back tire. The wheel of the tire went up on her \nleft foot. Claimant tried to roll away from the vehicle. Claimant testified that she screamed, causing \nthe driver of the vehicle to stop. At that time, the wheel was on her lower back and then the driver \nbacked down her leg again. Because she was afraid that the driver might roll over her again, she got \nout of way of the wheels of the truck. Claimant said she could not put weight on her leg. Because of \n\nLawrence-H204710 \n5 \n \n \nwhere the accident took place, claimant got into the truck and returned to the main road where a call \nwas made to 911 and an ambulance came to where aid was administered. Claimant was then flown to \nSpringfield, Missouri where she was treated and released to see her family doctor; there were no broken \nbones in her leg.  \n After seeing her family physician, Dr. Jose Abiseid, she was referred to Dr. Justin Cutler, an \northopedist in Harrison, Arkansas. Claimant’s main issue at that point was still with her leg, and she \nwas treated conservatively with medication and physical therapy. Because it is thirty-six miles from \nher  home  to  the  physical  therapist,  claimant  has  not  been  receiving  physical  therapy,  but  has  been \ndoing her exercises at home. Dr. Cutler administered an injection to her back which helped with the \npain. Dr. Cutler also sent claimant for an MRI on her back. Claimant testified that Dr. Cutler wanted \nher to be seen by a pain management specialist and to have a C-brace to improve her walking; these \nhave been denied by the respondent. Dr. Cutler had not released claimant to return to work as of the \ndate of the hearing.  \n Claimant saw Dr. Edward Saer after having been referred by Dr. Cutler. Dr. Saer has treated \nclaimant for her back injuries in the past. Claimant believed that he was not interested in seeing her \nfor her 2022 injury. \n When asked to describe her current symptoms, claimant said she still has swelling. She cannot \nfeel her leg from her knee down and has no control over it. She stated she has numbness up to her \nhip. She has shooting pains and muscle spasms in her back, but a large part of her leg is numb and \nwithout sensation. She uses her walker constantly. She believes her symptoms are getting worse over \ntime. Claimant said she gets relief when she lies down and doesn’t do much to aggravate her condition. \nThe problem with her leg gives her problems sleeping. Claimant admitted that she had had problems \nwith her left leg associated with her prior back problems, but the surgeries alleviated the leg problems. \n\nLawrence-H204710 \n6 \n \n \nShe said the problems with her leg are different now because of the numbness. \n On  cross-examination,  claimant  admitted  that  she  had  degenerative  conditions in her  back \nwhich were diagnosed as early as 2007. Claimant stated that she had been fused on her pelvis up to \nL1 (but later corrected herself to say L-4 was the top of the fusion). \n When asked to relate the events of the injury, claimant said that the bed of the truck struck \nher and pushed her off balance, causing her to fall on her right side. Her left leg was closer to the tire, \nbut she testified that her body was facing the front of the truck, directly in front of the tires, and then \nclarified that it was a dual tire truck. In order to get away from the tires, she tried to roll under the \ntruck but was pinned and could not get away from it. Claimant testified that she had tire tread on her \nback where the driver stopped. Claimant admitted that she had no damage to her organs, nothing was \nbroken and had no ligament tear. \n While in Springfield, claimant said the emergency room personnel did not focus on her back \nbecause  she  told  them  her  problems  were  with  her  left  leg.  She recognized the  diagram  of  her \ncomplaints and agreed that she told the trauma team “Patient reports her left leg was run over by a \ndump truck. Patient denies any other injury. Isolated left leg injury.” \n Claimant stated when she began seeing Dr. Cutler, he was treating her specifically for her left \nleg issues and believed that the problem with her left leg now is related to her back. The walker she \nwas using on the day of the hearing had been prescribed to her from her surgery in 2016 or 2017. \nWhen asked about Dr. Cutler’s narrative in which he reported that she “reports accident occurring on \nJune 16, where she ended up underneath a garbage truck. Truck ran up her left leg all the way up to \nher thigh. Backed off of it.” She said that narrative was wrong. She did not know why Dr. Cutler did \nnot note that she was using a walker on July 26, 2022, because she was. \n Claimant repeated that she did not like how Dr. Saer was acting during her visits with him but \n\nLawrence-H204710 \n7 \n \n \nknew of no reason why he would not want to help her or had any animosity toward her. She disagreed \nwith Dr. Saer’s opinion that her continued symptoms did not relate to her back injury. Because Dr. \nCutler did not agree with Dr. Saer’s opinion, a third opinion regarding claimant’s back was requested \nby Dr. Cutler. \n On redirect-examination, claimant clarified that she had a fusion from S1-L4, not L1. She was \naware  that  Dr.  Cutler  reviewed  the  MRI  of  her  spine  and  believed  there  was  a  large  lateral  disc \nherniation at L5-S1.  \nREVIEW OF THE EXHIBITS \n \n In addition to the motion for an independent medical examination and claimant’s response to \nthat motion, claimant submitted medical records of her treatment after the June 16, 2022, injury, while \nrespondent submitted records that predated that injury, except for an MRI performed on July 7, 2022, \nand the emergency room records from Cox Health dated June 16, 2022.   \n Claimant began with conservative care for her leg injury with Dr. Cutler on July 19, 2022. She \ndid mention in that initial visit that she was having numbness and tingling with some sharp shooting \npains in her left thigh and left lower extremity.  The emphasis on claimant’s treatment remained with \nher left leg until after Dr. Cutler ordered an MRI and an EMG, which were performed on September \n8, 2022.  Upon seeing the results, Dr. Cutler requested an MRI on her lumbar spine.   \n On October 3, 2022, an MRI was performed at North Arkansas Regional Medical Center.  \nThe impression was:  \n1. Indeterminate intermediate intensity signal material within the left lateral recess \nat  L5/S1  contacting  and  possibly  encasing  the  traversing  left  S1  nerve  root. \nUnable to exclude scar tissue given the prior surgery. Correlate with any left S1 \nradicular symptoms. \n2. Prior  decompression  and  interbody/posterior  fusions  at  L4/L5  and  an  L5/S1. \nMild  adjacent  segment  disease  at  L3/L4  with  grade  1  retrolisthesis  and  mild \nbulging of the disk.  No narrowing at L3/L4.  \n \n\nLawrence-H204710 \n8 \n \n \n Because she had been previously treated by Dr. Saer for back issues—including performing \ntwo spinal surgeries—Dr. Cutler referred claimant to see him again.  She was examined by Dr. Saer \non October 25, 2022, who recorded in his assessment:  \n“She does not have a definite bony injury in her lumbar spine and there is no \ndefinite  nerve  root  compression.  She  certainly  could  have  an  injury  to  the \nperoneal  nerve  or  a  neuropraxia  to  the  femoral  nerve  or  perhaps  even  the \nlumbar  plexus.    I  do  not  see  anything  in  her  spine  now  that  looks  like  she \nneeds further treatment. Continuing therapy is probably her best bet.” \n \n Claimant returned to Dr. Cutler on November 9, 2022, and expressed her dissatisfaction with \nDr. Saer, reporting that Dr. Saer asked her repeatedly about an EMG when she had already told him \nthat she had one.  Dr. Cutler still believed that the EMG and MRI of the lumbar spine are consistent \nwith  new  herniations  from  her  injury.      He  suggested  a  second  spine evaluation  and  performed  an \ninjection into claimant’s left LI joint.   \n Instead of seeing a different neurosurgeon, the next record was another EMG ordered by Dr. \nSaer, this time performed at Ortho Arkansas in Little Rock on December 15, 2022.  The impressions \nfrom this test were:  \n            1.    Abnormal electrodiagnostic study. \n2.  There is electrodiagnostic evidence suggestive of a non-localizable left peroneal \nneuropathy  with  no  focal  slowing  seen  at  the  fibular  head  and  no  active \ndenervation in any peroneal and elevated muscles tested.  In addition, there were \ninconsistencies  seen  between  functional  and  volitional  activity  throughout  the \nstudy  as  patient  seen  doing  activities  such  as  ambulating,  able  to  get  onto  exam \ntable on own accord, rotate on table, extend and flex legs, but volitional activity \nwas minimally seen.  \n3. There  is  no  electrodiagnostic  evidence  of  any  other  focal  nerve  entrapment, \ngeneralized peripheral neuropathy or left lumbar radiculopathy. \n4. Of  note,  EMG  is  not  a  completely  sensitive  study,  and  does  not  evaluate  small \nsensory  pain  fibers.  Thus,  lack  of  active  denervation  on  today's  study  does  not \nexclude  an  active  radiculopathy.  Clinical  correlation  is  needed  to  determine  the \nsignificance of today's electrodiagnostic examination findings. \n \n \n\nLawrence-H204710 \n9 \n \n \n Dr. Saer reviewed the results of the EMG on December 16, 2022 and again reassured claimant \nthat he saw nothing for which she needed surgery. \n Claimant  returned  to  Dr.  Cutler  on  February  6,  2023; his  notes from  that  date through  his \nAugust 16, 2023, office visit repeatedly included a recommendation that claimant be seen by another \nspecialist.  That final visit concluded with the following impression/plan:  \n“Patient is status post being run over by a dump truck with complete loss of \nfunction in the left lower extremity. Is being reported from workers comp that \nshe  had  a  previous  low  back  injury  with  a  nerve  root  impingement.  This  is \nnothing like that type of injury. This is a completely additional ordeal. Patient \nhas no functional use of her left lower extremity. Patient requires substantial \namount  of  assistance  and  cannot  drive  or  even  ambulate  without significant \nhelp.  Patient  would  greatly  benefit  from  a  C brace  to  help  control  her  hip, \nknee, and ankle motions. This will allow her to have more independence with \nactivities of daily living. Even where patient did have a documented previous \nback injury for many years ago, this is an injury that has more than aggravated \nthose problems. In reality, this is a completely new injury causing severe nerve \nfunction dysfunction to her entire left lower extremity.” \n  \nADJUDICATION \n \nAs  set  forth  above,  the  first  question to  be  decided is whether  an  independent  medical \nexamination is reasonable and necessary in this matter.  \nArkansas Code Annotated section 11-9-511(a) provides, in relevant part: \n \nAn injured employee claiming to be entitled to compensation shall submit to \nsuch  physical  examination  and  treatment  by  another  qualified  physician, \ndesignated  or  approved  by  the  Workers'  Compensation  Commission,  as  the \nCommission may require from time to time if reasonable and necessary. The \nthreshold  question  is  whether  the  examination  is  reasonable  and  necessary.  \n(Emphasis added.) \n \nRule 30 (1) of the Arkansas Workers' Compensation Commission provides: \n \nAn independent medical examination shall include a study of previous history and Medical \nCare information, diagnostic studies, diagnostic x-rays, and laboratory studies, \nas  well  as  an  examination  and  evaluation. This  service  may  be  necessary  in \norder  to  make  a  judgment  regarding  the  current  status  of  the  injured  or  ill \nworker, or to determine the need for further health care. (Emphasis added.) \n\nLawrence-H204710 \n10 \n \n \n \nWhen  viewing  the  medical  evidence considering the  standards  set  forth  above,  I believe \nrespondents  have  shown  that an  IME  is  reasonable and  that it  would  be  necessary  to  make  an \ninformed judgment in this case about claimant's need for further health care that is attributable to her \ncompensable injury.  \nAs  I  outlined  in the  review  of  the  medical  records,  there is  a  sharp  difference  of  opinion \nbetween Dr. Cutler and Dr. Saer about the cause of claimant’s continued left leg pain.  Claimant \nbelieved that Dr. Saer was uninterested in helping her; respondents maintain that Dr. Cutler is actively \nadvocating for claimant. I do not care to ascribe motives to either doctor that affect their opinions.  I \nrecognize  that  a conflict  in  the  opinions  of  the  doctors  is  no  reason, in  and  of  itself, to  order  a \n\"tiebreaker\" IME. The Commission has authority to accept or reject medical opinion and to determine \nits  medical  soundness  and  probative  force. Oak  Grove  Lumber  Co.  v.  Highfill,  62  Ark.  App.  42,  968 \nS.W.2d 637 (1998).   \nHowever, with all that said, I am concerned about the equivocal nature of the impressions on \nthe lumbar MRI of October 3, 2022, and the EMG test performed on December 15, 2022.  It may \nwell be that claimant could undergo another dozen such tests and no one could be any more definite \nthan were the two radiologists that recorded their impressions. Still, I believe the results of these tests \nare  at  the  root  of  the disagreement  between  Drs.  Cutler  and  Saer.    As  such,  I  find  the  request by \nrespondents for  an  IME to  be  reasonable—as  does Dr.  Cutler,  as  witnessed  by  his  repeated \nrecommendation for another evaluation—and necessary for me to make an accurate assessment as to \nclaimant’s need for additional medical care.   \nBecause I am granting the motion for an IME, this matter will be held in suspense pending \nthe receipt of the report from the physician conducting the IME.  This matter will be referred to the \nMedical Cost Containment Division of the Commission to select that physician. \n\nLawrence-H204710 \n11 \n \n \nORDER \n \n Respondents’ motion for an IME is granted.   The cost of said examination is to be borne by \nrespondents, including mileage for claimant’s travel.  Further, the parties should provide the physician \nselected  by the  Medical  Cost  Containment  Division the  medical  records,  including  any  diagnostic \ntesting  previously  performed  in  order for  that  physician  to  have  a  complete  record  of  what  has \ntranspired  to  this point. If the  physician  selected  believes  additional  diagnostic  procedures  are \nnecessary to properly evaluate the claimant, such should be promptly authorized by respondent.  \nIt is further ordered that the issues raised by claimant are held in suspense, pending receipt of \na narrative from the specialist selected.    \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":22311,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204710 ALICE E. LAWRENCE, Employee CLAIMANT SEARCY COUNTY JUDGE, Employer RESPONDENT AAC RISK MANAGEMENT SERVICES, Carrier RESPONDENT OPINION FILED NOVEMBER 30, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Harrison, Boone County, Arkansas...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back","knee","hip","lumbar","ankle"],"fetchedAt":"2026-05-19T23:01:01.108Z"},{"id":"alj-H207073-2023-11-30","awccNumber":"H207073","decisionDate":"2023-11-30","decisionYear":2023,"opinionType":"alj","claimantName":"Brandon Lognion","employerName":"Good Day Farms, LLC","title":"LOGNION VS. GOOD DAY FARMS, LLC AWCC# H207073 NOVEMBER 30, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//LOGNION_BRANDON_H207073_20231130.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOGNION_BRANDON_H207073_20231130.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H207073 \n \nBRANDON E. LOGNION, EMPLOYEE       CLAIMANT \n \nGOOD DAY FARMS, LLC, EMPLOYER              RESPONDENT \n \nCLEAR SPRING PROPERTY & CASUALTY CO./ \nCCMSI, CARRIER/TPA                     RESPONDENT  \n \n \nOPINION FILED 30 NOVEMBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe, 29 November 2023, Little Rock, Pulaski County, Arkansas. \n \nThe pro se claimant failed to appear. \n \nMr.  Guy Alton Wade,  Attorney-at-Law  of  Little  Rock,  Arkansas,  appeared for  the \nrespondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 29 November 2023. This case relates to a workplace injury sustained on \n16 May 2022. A Form AR-C, dated 16 May 2022, was first filed with the Commission on 30 \nSeptember 2022 claiming a lower back injury. A Form AR-2 was filed with the Commission \non 27 October 2022, accepting the medical-only claim. \n On 23 June 2023 and again on 23 August 2023, the Clerk of the Commission filed \nletter Motions from the respondents, originally dated 20 June 2023, requesting that this \nmatter be dismissed for lack of prosecution. Notice of the respondents’ Motion and then notice \nof a hearing date for that Motion were sent to the claimant on 24 August 2023 and 13 October \n2023, respectively. I will note that it is the Commission’s practice for any mail sent to a \nclaimant and returned as undeliverable to affix those mailings in the Commission’s file. As \nmentioned at the hearing, no returned mailings are included in this file. \n\nLOGNION- H207073 \n2 \n \nBefore the hearing began, counsel for the respondents called into the waiting area at \nthe Commission for the claimant, but no one answered or asked to be heard on the claimant’s \nbehalf. As argued by the respondents at the hearing, the file reflects no request for a hearing \non a claim in the relevant time preceding the filing of that Motion. Notice of that Motion and \nnotice of the hearing on that Motion were sent to the address provided by the claimant, and \nthe claimant chose not to appear to resist the Motion to Dismiss this action. The respondents \nappeared, presented their Motion, and offered supporting evidence into the record. \n Arkansas Code  Annotated §  11-9-702(a)(4)  states  that  a  matter  may  be  dismissed \nwithout prejudice after six (6) months without a bona fide request for a hearing.  Commission \nRule 099.13 provides for  a  dismissal  for  failure  to prosecute  an  action upon  application  by \neither  party. Based  on  the  record, the available  evidence, and the  arguments  of  the \nrespondents’ counsel, I find that the respondents’ Motion to Dismiss should be granted and \nthat the matter should be dismissed without prejudice. \nVI.  ORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3065,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H207073 BRANDON E. LOGNION, EMPLOYEE CLAIMANT GOOD DAY FARMS, LLC, EMPLOYER RESPONDENT CLEAR SPRING PROPERTY & CASUALTY CO./ CCMSI, CARRIER/TPA RESPONDENT OPINION FILED 30 NOVEMBER 2023 Heard before Arkansas Workers’ Compensation Commission (AWCC) Admini...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:01:03.240Z"},{"id":"alj-H205900-2023-11-30","awccNumber":"H205900","decisionDate":"2023-11-30","decisionYear":2023,"opinionType":"alj","claimantName":"Jason Marshall","employerName":"Tyson Poultry Inc","title":"MARSHALL VS. TYSON POULTRY INC. AWCC# H205900 NOVEMBER 30, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MARSHALL_JASON_H205900_20231130.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARSHALL_JASON_H205900_20231130.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H205900 \n \nJASON L. MARSHALL, Employee                                                CLAIMANT \n \nTYSON POULTRY INC., Self-Insured Employer                                    RESPONDENT \n \n \n \n OPINION FILED NOVEMBER 30, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by B. TANNER THOMAS, Attorney, Little Rock, Arkansas. \n \nRespondents represented by JEREMY SWEARINGEN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On November  16,  2023,  the  above  captioned  claim  came  on  for a hearing  at Springdale, \nArkansas.  A pre-hearing conference was conducted on August 31, 2023, and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.   The employee/employer/carrier relationship existed on May 16, 2022. \n            3.  Claimant sustained a compensable injury on May 16, 2022. \n            4.  The compensation rates are the maximum.  \n            At the pre-hearing conference the parties agreed to litigate the following issues: \n            1. Whether claimant is entitled to temporary total disability benefits. \n            2. Whether claimant is entitled to medical benefits. \n\nMarshall-H205900 \n2 \n \n            3.  Attorney fees. \n All other issues are reserved by the parties. \n  However, at the hearing, claimant announced that he was reserving his claim for temporary \ntotal disability benefits.  As a result, there was also no claim for attorney’s fees being pursued at the \nhearing.  \n The claimant contends that “On 5/16/2022 he was using damaged equipment and he had to \ncrank hard at a lever to open a feed bin on his truck. He heard his right shoulder pop, and the pain \nwas immediate and worsened throughout the day. Claimant was diagnosed with a right shoulder labral \ntear after an arthroscopy and debridement. Claimant had continuing problems with his right shoulder \nand had to take off work again. Claimant was released and filed a COP with Dr. Cox, but this was not \nin respondents’ network. Because of this, claimant has treated with Dr. Cox on his own. Claimant is \nnow scheduled for another surgery. Claimant contends that he is entitled to additional treatment and \nthat his attorney is entitled to an attorney’s fee. All other issues are reserved.” \n The respondents contend that “They  are  not  responsible  for  medical  expenses  which  the \nclaimant incurred on his own outside the authorized chain of referrals. The claimant had requested a \nchange of physicians to Dr. Cox but then abandoned efforts to pursue a change to another doctor \nwhen Dr.  Cox  could  not  receive  the  change  request.  The  claimant  then  admittedly  sought \nunauthorized treatment with Dr. Cox. The claimant has requested attorney’s fees on medical benefits, \nwhich  are  not  permitted  at  law.  Respondent  reserves  the  right  to  supplement  or  amend  these \nstipulations at a later date.” \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the witness \nand  to  observe his demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \n\nMarshall-H205900 \n3 \n \n \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n31, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.    Claimant failed to prove that his treatment by Dr. Wesley Cox was authorized, nor was it \nemergency treatment, and therefore, the expenses of such are not the responsibility of respondent.  \n \n FACTUAL BACKGROUND \n After discussing the matter with the attorneys before testimony began, it was made clear that \nthe only issue for me to decide was whether claimant’s treatment by Dr. Cox was authorized.  As such, \nthe summary of the hearing testimony and the exhibits will focus on the evidence that pertains to that \nsingle issue.  \n Mr.  Tanner  Thomas  represented  claimant  at  this  hearing;  during  the  discussions  about  the \nchange of physicians, Ms. Laura Beth York was his attorney.  \nHEARING TESTIMONY \n \n Claimant was  the  only  witness  to  testify.  He  related  how  he  hurt  his  right shoulder  in June \n2022 and explained that he underwent an arthroscopic labral repair in August 2022 performed by his \nauthorized treating physician, Jason Stewart. Despite reporting to Dr. Stewart that he was still having \nproblems  with  his  shoulder  and  that  it  was  more  painful  after  the  surgery  than  it  was  before,  Dr. \nStewart released claimant to return to work at full duty with no restrictions on December 9, 2022. \n Claimant requested a change of physicians, but due to some issues beyond his control, no such \nchange of physicians was authorized. In May 2023 claimant started seeing Dr. Wesley Cox, who began \nwith conservative  treatment  including  an  injection  into  his  right  shoulder.  That  injection  provided \n\nMarshall-H205900 \n4 \n \n \nsome relief  for  a  short  period  of  time  but  as  of  the  date  of  the  hearing,  claimant  believed  that  he \nneeded additional arthroscopic surgery on his shoulder. \n \nREVIEW OF THE EXHIBITS \n \n Claimant provided the medical records from Drs. Stewart and Cox, both of which coincided \nwith his testimony. There was an MRI performed on February 21, 2023, which was ordered by Dr. \nThomas Knox and shows Dr. Donald Franklin as the admitting physician for that examination.  The \nfinal  record  was  from  Dr.  Cox  on  July  25, 2023, in  which  the  doctor  had  scheduled  claimant  for \nshoulder surgery on August 21, 2023. Claimant had not had that surgery as of the date of the hearing, \nas he wanted to be sure that the expense of that procedure would be covered as part of his workers' \ncompensation claim. \nREVIEW OF NON-MEDICAL EXHIBITS \n While neither party submitted the letter or e-mail that requested a change of physicians, it was \ncommon ground between the parties at the hearing that such had occurred sometime before January \n9, 2023 as that was the earliest date in a series of e-mails between claimant’s attorney, respondent’s \nattorney, and Ms. Susan Isaac at the Workers’ Compensation Commission Medical Cost Containment \nDivision. \nADJUDICATION \n \n \n The  employer  has  the  right  to  select  the  initial  treating  physician.  Ark.  Code  Ann.  §  11-9-\n514(a)(3)(A)(i). However, an employee may request a one-time change of physician. Ark. Code Ann. \n§ 11-9-514(a)(2)(A). When a claimant seeks a change of physician, he must petition the Commission \nfor approval. Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 270, 19 S.W.3d 36, 39 (2000). Treatment \nor  services  furnished  or  prescribed  by  any  physician  other  than  the  ones  selected  according  to  the \n\nMarshall-H205900 \n5 \n \n \nchange-of physician rules, except emergency treatment, shall be at the claimant's expense. Ark. Code \nAnn. § 11-9-514(b). \n \n  Under Ark. Code Ann. § 11-9-514(b)-(c): \n \n(b) Treatment or services furnished or prescribed by any physician other than \nthe  ones  selected according  to  the  foregoing  [the  choice  and  change-of-\nphysician rules in Subsection (a)], except emergency treatment, shall be at the \nclaimant's expense. \n \n(c)(1) After being notified of an injury, the employer or insurance carrier shall \ndeliver  to  the  employee,  in  person  or  by  certified  or  registered  mail,  return \nreceipt  requested,  a  copy  of  a  notice,  approved  or  prescribed  by  the \ncommission,   which   explains the   employee's   rights   and   responsibilities \nconcerning change of physician. \n \n(2) If, after notice of injury, the employee is not furnished a copy of the notice, \nthe change of physician rules do not apply. \n \n(3)  Any  unauthorized  medical  expense  incurred  after  the  employee  has \nreceived a copy of the notice shall not be the responsibility of the employer.  \n \nRespondent  introduced  the  Employee’s  Notice  of  Injury  form  (AR-N)  as  well  as  the \nAcknowledgement of Managed Care Notice (R. X. 1-3), satisfying the requirement that claimant was \nfurnished  a  copy  of  the  rules  regarding  changing  his  treating  physician.  Neither  party  introduced \nclaimant’s petition to the Commission for approval to change physicians, but both parties referred to \nthat request in the contentions in the prehearing order, and the exhibits that were submitted discussed \nit.  I accept that a request was made.   However, I was not provided with any proof that the change of \nphysicians was approved by the Commission.  \n A chronological review of the emails that were submitted will show what happened--and what \ndid not happen. For ease of reading, claimant’s attorney in this exchange is Ms. Laura Beth York and \nher case manager is Amanda Faulkner (collectively referred to as “York”), respondent’s counsel is \nJeremy Swearingen, (“Swearingen”), and the Commission’s Medical Cost Containment representative \n\nMarshall-H205900 \n6 \n \n \nis Susan Isaac (“Isaac”): \n \n \n1. 1/9/23: Swearingen advised York that the adjuster was getting claimant’s appointment with \nDr. Knox set up.   Reference is made to it being “his initial COP” (“change of physicians”) \nand scheduling an arthrogram before that appointment. \n \n2. 1/17/23:  York asked Swearingen about the status of the arthrogram; Swearingen replied the \nsame day that the adjuster had authorized it and was trying to schedule it.  \n \n3. 1/18/23:  Isaac emailed York, copy to Swearingen, advising that Dr. Franklin, who practices \nwith Dr. Knox, was not in the MCO (Managed Care Organization) for this claim.  Isaac asked, \n“Is there another physician you would like to use for the COP?”   \n \n4. 1/23/23: Swearingen asked Isaac if she had heard anything regarding her 1/18/23 email.  Issac \nreplied that she had not.  York was copied on both. \n \n5. 1/24/23:  York responded that anyone at Knox Ortho would be suitable. Isaac replied that all \nthe other providers at Knox Ortho were in the MCO.   \n \n6. 1/25/23  Isaac  said  she  sent  the  records  to  Dr.  Franklin  because  he  specialized  in \nshoulders.   Swearingen asked York if there was another doctor at the clinic that she wanted \nfor the change of physicians.  \n \n7. 1/30/23  Isaac told York and Swearingen that Dr. Franklin was the only doctor at Knox that \nwould accept claimant as a patient, but since he was not in the MCO, Isaac could not approve \nthe COP to him.  “Ms. York, you will need to choose another physician for the COP.”  York \nasked about the arthrogram, Swearingen said it was approved because Dr. Franklin required it \nbefore seeing claimant, but it wasn’t scheduled because Dr. Franklin wasn’t appointed to \nassume claimant’s care.  York said claimant had been notified of an appointment for an MRI, \nand asked if he should keep that appointment.   \n \n8. 2/8/23  Isaac asked York if she had picked another physician for the COP.   York responded \nthat she had been very ill and would get back with Isaac when she returned.  \n \n9. 2/16/23 Isaac to York, “Just following up on this one.”  York to Isaac “Return to General \nFiles, please.” \n \nThe  parties  are  to  be  commended  at  how  much  communication  and  cooperation  they  showed \nthrough this email exchange. However, it does not appear in this record that a change of physicians \nwas  authorized  by  Ms.  Isaac;  she  asked  Ms.  York  about  choosing  a  doctor  that  was  in  the  MCO, \nbecause she could not name Dr. Franklin as claimant’s new physician, and no one else at Knox Ortho \n\nMarshall-H205900 \n7 \n \n \nwould accept him as a patient.  Without an order authorizing a change of physicians, respondent is \nnot responsible for the medical expenses related to the treatment by Dr. Cox. As respondent conceded \nat the hearing, claimant is still entitled to request such a change from the Commission’s Medical Cost \nContainment Division and is encouraged to do so.  \nORDER \n \n Claimant’s request for reimbursement for medical expenses incurred after February 21, 2023, \nand for continued treatment with Dr. Cox must be denied as it was unauthorized.  \n Respondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \nhearing transcript in the amount of $540.45. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":12946,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205900 JASON L. MARSHALL, Employee CLAIMANT TYSON POULTRY INC., Self-Insured Employer RESPONDENT OPINION FILED NOVEMBER 30, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas. Claimant represented by B. T...","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["shoulder","back"],"fetchedAt":"2026-05-19T23:01:05.329Z"},{"id":"alj-H202720-2023-11-30","awccNumber":"H202720","decisionDate":"2023-11-30","decisionYear":2023,"opinionType":"alj","claimantName":"William Middleton","employerName":"L & L Metal Fabrication","title":"MIDDLETON VS. L & L METAL FABRICATION AWCC# H202720 NOVEMBER 30, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MIDDLETON_WILLIAM_H202720_20231130.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MIDDLETON_WILLIAM_H202720_20231130.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H202720 \n \nWILLIAM L. MIDDLETON, Employee                        CLAIMANT \n \nL & L METAL FABRICATION, Employer             RESPONDENT \n \nAMERISURE INSURANCE COMPANY, Carrier             RESPONDENT \n \n \n OPINION FILED NOVEMBER 30, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On September 28, 2023, the above captioned claim was scheduled for a hearing in Springdale, \nArkansas.  A pre-hearing conference was conducted on April 13, 2023 and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. Prior to the date of the hearing, the parties agreed \nto submit this matter on a stipulated record and briefs.  \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n            2.   The employee/employer/carrier relationship existed on July 3, 2021.\n1\n \n            3.    The respondents have controverted the claim in its entirety. \n \n1\n I note a discrepancy between the stipulation as to the date of injury and the contention of claimant.  The evidence \nshowed that claimant was working a shift that began on July 3, 2021, and continued into July 4, 2021. The different \ndates in the issues and the contentions are of no consequence.  \n\nMiddleton-H202720 \n2 \n \nThe parties later submitted joint stipulations that will be discussed below. \n            At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.   Whether claimant sustained a compensable injury on July 3, 2021. \n            2.   If compensable, whether claimant is entitled to medical benefits past and future. \n            3.   Whether claimant is entitled to temporary total disability benefits. \n            4.   Whether claimant is entitled to mileage. \n            5.   Attorney’s fees. \n All other issues are reserved by the parties. \n The claimant contends that “He was injured on July 4, 2021, when he was struck on top of his \nhard hat by another employee causing an injury to his neck and head which has ultimately led to a \ntraumatic  brain  injury.  The  claimant  was  seen  two  (2)  days  later  at  Arkansas  Occupational  Health \nClinic  for  continued  complaints  of  head  injury  with  neck  pain.  Imaging  was  performed  and  the \nclaimant was released to regular duty with instructions to return in one (1) week for follow up. On \nJuly 13, 2021, the claimant returned to Arkansas Occupational Health Clinic for continued neck pain \nwherein  he  received  a  steroid  injection  and  to  return  in  one  (1)  week  for  follow  up.  The  claimant \nreturned to Arkansas Occupational Health Clinic on July 20, 2021, for continued head and neck pain. \nThe PA-C referred the claimant to physical therapy and to return in three (3) weeks. On August 18, \n2021, the claimant returned to Arkansas Occupational Health Clinic for worsening pain in his neck. \nThe claimant had not been able to start physical therapy. On September 29, 2021, the claimant was \ntreated  by  Arkansas  Occupational  Health  Clinic  for  continued  worsening  neck  pain.  The  PA-C \nreferred the claimant for a neurology consultation as well as an MRI or CT of his neck. The claimant \nhad  an  MRI  of  his  cervical  spine  performed  on  October  5, 2021,  at  Mana  Medical  Associates.  On \nOctober  18, 2021,  claimant  followed  up  at  Arkansas  Occupational  Health  Clinic  for  continued \n\nMiddleton-H202720 \n3 \n \nworsening neck pain. The MRI imaging was reviewed, and the claimant was to be referred for possible \nESI. On November 8, 2021, the claimant was seen by Dr. Luke Knox for continued neck pain. Dr. \nKnox suggested that the claimant receive epidural steroid injections prior to surgical intervention. The \nclaimant followed up with Dr. Luke Knox approximately two (2) months later and has continued to \nhave neck and head pain. The claimant reserves the right to amend and supplement his contentions \nafter additional discovery has been completed.”  \n The respondents contend that “The claimant did not sustain a compensable injury to his head \nor neck. Respondents further contend that the claimant has filed a civil action in Circuit Court against \nL & L Metal Fabrication, Inc., Brandon White, and John Does #1-10 for this exact same injury. The \nclaimant had previously undergone a cervical fusion and any issues with his cervical spine was pre-\nexisting. Moreover, Ark. Code. Ann 11-9-102(4)(A)(i) defines a compensable injury as an “accidental \ninjury.” If the injury  was  an  intentional  injury  as  alleged  by  the  claimant  in  his  civil  complaint,  the \nclaimant did not sustain a compensable injury.”  \n From a review of the entire record, to include medical reports, documents, and other matters \nproperly before the Commission, the following findings of fact and conclusions of law are made in \naccordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on April \n13, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.  Claimant is barred from pursuing this matter because he elected a remedy in civil court \nand resolved that matter via a settlement.  \n \n \n\nMiddleton-H202720 \n4 \n \n \n FACTUAL BACKGROUND \n On  the  day  before  the  scheduled  hearing,  the  parties  contacted  me  and  advised  they  could \nsubmit this matter on a stipulated record.   The hearing was cancelled, and after a delay in getting the \njoint stipulation executed, it was received on November 13, 2023.   The joint stipulation specifically \nreferenced seven records as joint exhibits.  Respondent submitted its brief and attached 32 pages of \nnon-medical records in support of its position on October 13, 2023.  Claimant submitted his brief and \n71 pages of non-medical records in support of his position.   Because the supporting documents from \nthe parties were not part of the joint stipulation agreement, I inquired of the parties if either had an \nobjection to the documents submitted by the other party.  Both advised they had no objection to the \nrecords attached to the brief of the opposing party.  The email exchange between the parties and the \ncourt is blue backed to the record in this case.  As such, all the documents provided by the parties are \nproperly before me to be considered in this opinion. \nTHE JOINT STIPULATIONS \n The parties submitted these joint stipulations, which are hereby accepted as fact: \n1.       The parties agreed to submit this claim on a stipulated record to consist of the stipulated facts \nand: \na. The Claimant’s Prehearing Questionnaire Responses filed February 10, 2023. \nb. Respondents Prehearing Questionnaire Responses filed April 12, 2023, with attached exhibits. \nc. Respondents Supplemental Responses filed May 31, 2023, with attached exhibits. \nd. The Prehearing Order filed April 13, 2023. \ne. The Claimant’s Medical Records filed September 21, 2023. \nf. Brandon White’s deposition taken on August 10, 2023 \ng. The AR-N. \n\nMiddleton-H202720 \n5 \n \n \n2.        The  Employee/Employer/Carrier  relationship  existed  between  the  parties  on  July  3  and  4, \n2021. \n3.        The  claimant  earned  a  sufficient  average  weekly  wage  to  be  entitled  to  the  maximum \ncompensation  rates  of  $736.00  per  week  for  temporary  total  disability  and  $552.00  per  week  for \npermanent partial disability. \n4.        The Respondents have controverted this claim in its entirety. \n5.        The claimant was employed by L & L Fabrication, Inc. as a job supervisor. \n6.        Brandon White, owner of Respondent Employer, struck the claimant on the top of his head \nwith his hard hat in the early morning hours of July 4, 2021. \n7.        The claimant completed an AR-N on July 6, 2021, alleging an injury to his head and neck when \n“the owner of L & L Brandon White hit me in the top head very hard with a hard hat.”  \n8.        Mr. White provided deposition testimony regarding this incident. \n9.        The  claimant  filed  a  civil  complaint  in  the  Circuit  Court  of  Washington  County,  Arkansas \nrelated to this injury in the early morning hours of July 4, 2021. \n10.      In a Second Amended Complaint filed on July 22, 2022, the claimant dropped all allegations of \nnegligence  and  alleged  that  he  was  battered  by  Brandon  White  when  White  “deliberately  and \nintentionally  took  his  hard  hat  and  hit  Plaintiff  over  the  head  with  it  after  becoming  angry  with \nPlaintiff.” \n11.      The claimant further alleged in his Second Amended Complaint, “Defendant White’s anger \nand conduct towards Plaintiff evinces an apparent intent to injure Plaintiff.”  \n12.      In response to a Motion to Dismiss of the claimant’s Second Amended Complaint due to the \nexclusive remedy being workers’ compensation, claimant contended that all allegations in the Second \nAmended  Complaint  were  outside  the  exclusive  jurisdiction  of  the  Workers’  Compensation \n\nMiddleton-H202720 \n6 \n \n \nCommission pursuant to the “intentional-tort exception.” \n13.  Prior to receiving a ruling on the  Motion to Dismiss, the parties in that civil suit reached a \nSettlement Agreement with a Full and Final Release of Claims. \nREVIEW OF THE EXHIBITS \n \n In  addition  to  the  documents  referenced  in  #1  of  the  joint  stipulation,  claimant  submitted \ndocuments from the above-referenced civil litigation in Washington County.   Respondent duplicated \nmany  of  those  documents,  and  included  the  confidential  settlement  agreement  which  ended  the \nWashington County lawsuit between claimant and respondent L & L Metal Fabrication, Inc.  \nADJUDICATION \n \n Boiled down to its simplest elements, the issue before me is whether a claimant can bring a \nlawsuit  against  a  respondent  in  state  court,  pleading  an  intentional  tort to  overcome  the  exclusive \nremedy provision of the Arkansas Workers' Compensation Act, and then maintain a claim for workers’ \ncompensation  benefits  after  settling  the  case  in  circuit  court.    After  reviewing  the  stipulations  and \nexhibits and applying the law to these stipulated facts, I find the answer to that question is “no.” \n To begin with, it is the Commission that has the exclusive jurisdiction to determine whether \nit has jurisdiction over a claim.  The Arkansas Supreme Court made that clear in VanWagoner v. Beverly \nEnters., 334 Ark. 12, 970 S.W.2d 810 (1998):   \n“We hold that the exclusive remedy of an employee or her representative on \naccount of injury or death arising out of and in the course of her employment \nis  a  claim  for  compensation  under  § 11-9-105, and  that  the commission  has \nexclusive, original jurisdiction to determine the facts that establish jurisdiction, \nunless the facts are so one-sided that the issue is no longer one of fact but one \nof law, such as an intentional tort. See Angle v. Alexander, 328 Ark. 714, 719, \n945  S.W.2d  933  (1997)  (citing Miller  v.   Ensco,  Inc.,  286  Ark.  458,  461,  692 \nS.W.2d 615 (1985) (explaining that, before an employee is free to bring a tort \naction for damages against an employer, the facts must show that the employer \nhad  a  \"desire\"  to  bring  about  the  consequences  of  the  acts,  or  that  the  acts \nwere premeditated with the specific intent to injure the employee)”   \n \n\nMiddleton-H202720 \n7 \n \n \n Claimant  first  had  sought  damages  for  his  injuries  under  two  theories,  negligence  and  the \nintentional  tort  of  battery.    When  the  defense  raised  that  a  negligence  cause  of  action  against  the \nemployer  could  only  be  brought  in  a  workers’ compensation claim, claimant filed  an  amended \npleading, eliminating the negligence claim, leaving only the intentional tort theory of recovery.  Thus, \nclaimant did what he could to avoid a claim before the Commission.  \n The Arkansas Supreme Court dealt with a similar issue in  Western Waste Indus. v. Purifoy, \n326 Ark. 256, 930 S.W.2d 348 (1996), although the order of events was reversed.  Purifoy first settled \na worker’s compensation claim against Western Waste, and then filed a civil lawsuit against that \ncompany.   In granting a writ of prohibition, the Court held:  \n“This court has held that the general rule is that an injured employee's right \nto   recover   for   job-related   injuries   is   exclusively   under   the   Workers' \nCompensation  Act,  but  when  the  employee  is  able to  show  actual,  specific \nand  deliberate  intent  by  the  employer  to  injure  him,  he  may  avoid  the \nexclusive  remedy  under  the  Act  and  proceed  in  a common-law  tort  action. \nSontag v. Orbit Valve Co., 283 Ark. 191, 672 S.W.2d 50 (1984). In other words, \nthe employee has the option to pursue his or her claim for damages either in \ntort or under the Workers' Compensation Act. However, once the employee \nmakes that election, the employee may not later avail himself or herself of the \nremedy not chosen.” (Emphasis added) \n \n The Court concluded by observing that “in determining whether a trial court has jurisdiction \nin prohibition matters, this court is limited to the parties' pleadings.”  \n  In  the  Washington  Circuit  Court  action  filed  by  claimant,  the  defendants  abandoned  their \nexclusive-remedy defense after claimant filed his Second Amended Complaint. (Cl. X. 32-33) In that \npleading, claimant had removed all references to negligence from his initial complaint, and specifically \nalleged that  defendant’s  conduct  brought  “Defendant’s  conduct  within  the  “intentional-tort \nexception” to the exclusivity provision of the Arkansas Workers’ Compensation Act, codified at Ark. \nCode Ann. §11-9-105(a).” (Cl. X, p. 50, paragraph 2) Based on that pleading, the Circuit Court could \nnot have referred the case to the Workers’ Compensation Commission, because claimant had clearly \n\nMiddleton-H202720 \n8 \n \n \nand intentionally placed himself out of the jurisdiction of the Commission.   \n In a similar fashion, the Full Commission reversed a ruling by an administrative law judge that \nthe claimant was not an employee of a company at the time of his alleged injury.   The claimant had \npreviously filed a lawsuit which he alleged that at the relevant time, he was employed by Webb Wheel.   \nIn the workers’ compensation case, he maintained he was not so employed.   The relevant passage \nfrom that opinion:  \n“Moreover,  the  claimant  filed  a  complaint  in  The  Circuit  Court  of  Benton \nCounty,  Arkansas  on  April  12,  2018,  and  expressly  stated  that  he  \"was \nemployed at Webb-Wheel Products, Inc. (\"Webb-Wheel\") in Siloam Springs, \nArkansas.  Mr.  Bunch  was  employed  at  Webb-Wheel  from  approximately \nAugust  of  1998  through August  of  1999....\"  A  party  litigant  is  bound  by  his \npleadings  and  cannot  maintain  a  position  inconsistent  with  his  pleadings. \nInternational Harvester v. Burks Motors, 252 Ark. 816, 481 S.W.2d 351 (1972). The \ndoctrine against inconsistent positions is a form of estoppel that prevents an \nindividual  from  asserting  claims  that  are  inconsistent  with  the  individual's \nprevious positions. Jackson v. Smiley Sawmill, 2019 Ark. App. 235, 576 S.W.3d \n43.  The  Full  Commission  finds  that  the  doctrine  of  inconsistent  positions \napplies  in  the  present  matter.  We  find  that  the  claimant  should  be estopped \nfrom  asserting  that  that  he  was  not  employed  with  the  respondent  Webb \nWheel Products while working there in 1999.”  Bunch v. Gates Corporation and \nWebb Wheel. 2020 AR WRK. COMP. LEXIS 340.  (Emphasis added) \n \n The pleadings in the Washington County Circuit Court case could not be any clearer.  Claimant \nspecifically framed his cause of action to circumvent the Commission’s jurisdiction.  Having done so, \nand then having resolved that case by way of a settlement agreement, claimant is estopped from now \nbringing a workers’ compensation case.\n2\n    \n \n \n2\n I note that in the confidential settlement agreement, claimant released L and L Fabrication, Inc. of “all manners \nactions, suits, claims and demands whatsoever, whether known or unknown, plaintiff now has, or may hereafter \nhave, or by reason of any cause, matter or thing whatsoever for negligence, personal injuries, pain and suffering, \npast medical expenses, future medical expenses, hospital expenses, mental anguish, disfigurement, disability, \ndegradation, emotional distress, general and special damages, punitive damages attorney’s fees, or any other losses \nor expenses, both present, past and future, arising out of, connected with, or in any way resulting from the claims or \nthe litigation which existed as of the date this release was executed.”     Because I believe the case law against \ninconsistent positions and election of remedies resolves this matter, I do not have to decide if that agreement would \nbe effective in a workers’ compensation case.     \n\nMiddleton-H202720 \n9 \n \n \nORDER \n  \n Claimant did not suffer a compensable injury on July 3 or 4, 2021, because he elected a civil \nremedy instead of pursuing a claim for benefits under the Arkansas Workers' Compensation Act.  \nThis matter is therefore denied and dismissed.  \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":17903,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202720 WILLIAM L. MIDDLETON, Employee CLAIMANT L & L METAL FABRICATION, Employer RESPONDENT AMERISURE INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED NOVEMBER 30, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington Cou...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["neck","cervical"],"fetchedAt":"2026-05-19T23:01:07.489Z"},{"id":"alj-H301768-2023-11-29","awccNumber":"H301768","decisionDate":"2023-11-29","decisionYear":2023,"opinionType":"alj","claimantName":"Joseph Baxter","employerName":"Overhead Door Of Little Rock","title":"BAXTER VS. OVERHEAD DOOR OF LITTLE ROCK AWCC# H301768 NOVEMBER 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BAXTER_JOSEPH_H301768_20231129.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAXTER_JOSEPH_H301768_20231129.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301768 \n \nJOSEPH A. BAXTER, EMPLOYEE  CLAIMANT \n \nOVERHEAD DOOR OF LITTLE ROCK, \nEMPLOYER                                                                                                RESPONDENT \n \nBRIDGEFIELD CASUALTY INSURANCE CO. \nINSURANCE COMPANY                                                                          RESPONDENT  \n \n \nOPINION FILED NOVEMBER 29, 2023 \n \nHearing before Administrative Law Judge Steven Porch on November 28, 2023, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented himself Pro Se. \n \nThe Respondents were represented by Mr. Jason Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents on November 28,  2023.  A  hearing  on  the  motion  was  conducted  on \nNovember 28, 2023, in Little Rock, Arkansas. The Claimant himself was not present at \nthe  hearing.  Respondents  were  represented  at  the  hearing  by  Mr.  Jason  Ryburn  who \nargued the motion.   \n The evidence reflects that Claimant’s injury occurred on October 18, 2022, where \nhe  injured  his  ribs  and  other  whole  body in  a  car  collision.  This  incident  allegedly  has \nsome connection to his employment. Since filing his Form C on March 16, 2023, this case \nhas been inactive until Respondents filed a Motion to Dismiss, on September 26, 2023, \ndue to the lack of prosecution. The Claimant was served through both certified and first \n\nBAXTER H301768 \n \n \n2 \nclass mail. Commissions’ file shows that the Claimant was served through certified mail \non October 26, 2023.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole including Commission Exhibit 1, non-medical \ndocuments, 5 pages and Commission Exhibit 2, the Notice of Hearing, and other matters \nproperly  before  the  Commission,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \n\nBAXTER H301768 \n \n \n3 \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice for the Motion to  Dismiss hearing under Rule 13. I further find \nthat Claimant has abridged this rule.  The Claimant has not prosecuted this claim since \nthe filing of his Form C on March 16, 2023, over eight months ago. Moreover, the Claimant \ndid not show up for the  Motion to Dismiss hearing after receiving ample notice. Thus,  I \nfind by the preponderance of the evidence that Respondents’ motion should be granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4878,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301768 JOSEPH A. BAXTER, EMPLOYEE CLAIMANT OVERHEAD DOOR OF LITTLE ROCK, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INSURANCE CO. INSURANCE COMPANY RESPONDENT OPINION FILED NOVEMBER 29, 2023 Hearing before Administrative Law Judge Steven Porch on November 28...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:52.685Z"},{"id":"alj-H301483-2023-11-29","awccNumber":"H301483","decisionDate":"2023-11-29","decisionYear":2023,"opinionType":"alj","claimantName":"Elias Chavez","employerName":"Thompson Construction Group, Inc","title":"CHAVEZ VS. THOMPSON CONSTRUCTION GROUP, INC. AWCC# H301483 NOVEMBER 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Chavez_Elias_H301483_20231129.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Chavez_Elias_H301483_20231129.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301483 \n \nELIAS CHAVEZ, EMPLOYEE CLAIMANT \n \nTHOMPSON CONSTRUCTION GROUP, INC., \nEMPLOYER RESPONDENT \n \nZURICH AMERICAN INSURANCE CO.,  \nCARRIER                       RESPONDENT \n \n \nOPINION FILED NOVEMBER 29, 2023 \n \nHearing before Administrative Law Judge Steven Porch on October 6, 2023, in Marion, \nArkansas. \n \nClaimant was represented by Mr. Tanner Thomas, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  were  represented  by  Mr.  Jarrod  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A full  hearing  was  held  on  this  claim  on  October  6,  2023.    Claimant  was \nrepresented by Mr. Tanner Thomas, Attorney at Law, Little Rock, Arkansas; Respondents \nwere represented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n \n2. An   employer/employee/carrier   relationship   existed   among   the \nparties on September  9,  2022,  when  Claimant  allegedly  sustained \ncompensable injuries to his left hip. \n \n3. Respondents  initially accepted  this  claim  as  medical-only  and  paid \nsome benefits\n1\n.  \n \n1\n Respondents denied compensability of the hip by letter dated September 29, 2023. This \nis  in evidence as Respondents Exhibit 3. \n\nCHAVEZ H301483 \n \n2 \n \n \n 4.  The parties  will  stipulate  to  Claimant’s  average  weekly  wage  and \ncompensation rates on or before the hearing date.\n2\n \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether Claimant sustained a compensable injury to his left hip. \n  \n2.  Whether  Claimant  is  entitled  to  any  additional  reasonable  and  necessary \nmedical treatment rendered after January of 2023. \n \n3.  Whether  Claimant  is  entitled  to  additional  temporary  total  disability  benefits \nfrom September 9, 2022, to a date yet to be determined. \n \n4.  Whether  Claimant  is  entitled  to  an  impairment  rating  and  permanent  partial \ndisability benefits. \n \n5.  Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s Contentions: On September 9, 2022, Claimant, in the course and scope \nof employment with the respondent-employer, was carrying a rail  when he fell from an \nelevated section of the construction site, sustaining a left hip injury.  \nThe Respondent took two months of the Claimant complaining about pain to send \nhim to a doctor, but initially accepted the injury as compensable. Claimant initially was \nprovided treatment from Dr. Sherita Willis, where his complaints were of left hip and low \nback  pain.  Claimant  was  allowed  to  return  to  Dr.  Willis  in  January  of  2023,  where  she \ncited  that  the  Claimant’s  complaints  of  pain  were  chronic  in  nature.  Respondents  then \n \n2\n The Claimant and the Respondent did not stipulate to the average weekly wage and \ncompensation rates at the full hearing. Both parties verbally assured the Commission that they \ncan stipulate to the compensation rates should an award for indemnity benefits be granted. \n\nCHAVEZ H301483 \n \n3 \n \ndenied his claim. \nClaimant was then forced to treat on his own and went to Dr. Rickey Carson, where \nhe complained of low back and left hip pain and was referred to Dr. John Rocco Rodney. \nClaimant underwent an MRI which revealed tears of his bilateral hamstring tendons, the \nleft gluteus minimus and medius tendons, and at the right insertion of the gluteus medius \ntendons. \nClaimant contends that he suffered a compensable injury at work, that he is entitled \nto temporary total disability and medical benefits, and that his attorney is entitled to an \nattorney’s fee. All other issues are reserved. \nRespondent’s  Contentions:  Respondents  contend  that  they  had  accepted  this \nclaim as medical-only. The Claimant continued to work for Respondent/Employer through \nMarch  19,  2023,  when  he  was  terminated,  as  is  evidenced  by  the  attached  wage \ninformation. The medical documentation does not support an off-work status beyond that. \nIn  light  of  this,  it  is  Respondents’  position  Claimant  is  not  entitled  to  temporary  total \ndisability benefits. Additionally, the medical records indicate the Claimant does not have \nany acute objective findings to support an injury on September 9, 2022. The Claimant has \nreceived unauthorized medical treatment with Drs. Rodney and Carson.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  non-medical \ndocuments,  post hearing briefs from  the  parties,  and  other matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012):   \n1.  The Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim.  \n\nCHAVEZ H301483 \n \n4 \n \n \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The  Claimant  has  proven  by  the  preponderance  of  the  evidence  that he \nsustained a compensable injury to his left hip on September 9, 2022.  \n \n4.   The  Claimant has  proven  by  the  preponderance  of  the  evidence  that  he  is \nentitled to additional reasonable and necessary medical treatment. \n \n5.   The Claimant has not proven by the preponderance of the evidence that he is \nentitled to temporary total disability benefits following his September 9, 2022, \ninjury. \n \n6.   The Claimant has not proven by the preponderance of the evidence that he is \nentitled to an impairment rating and permanent partial disability benefits. \n \n7.  Claimant has not proven by the preponderance of the evidence that his attorney \nis entitled to a controverted attorney’s fee. \n \nCASE IN CHIEF \nSummary of Evidence \n The sole witness at the hearing was the Claimant, Elias Chavez. The witness had \nthe  benefit  of  an  interpreter  to  translate  the  proceedings  from  English  to  Spanish.  In \naddition to admitting the pre-hearing order and Claimant’s and Respondents’ post-hearing \nbriefs regarding this matter, I also have admitted the following into evidence in this case: \nClaimant’s Exhibit 1, a comprehensive exhibit containing  67 pages of  medical records, \nRespondents’ Exhibit 1, a 51-page compilation of medical records; Respondents’ Exhibit \n2, a 16 page non-medical document; and Respondents’ Exhibit 3, a 1 page letter dated \nSeptember 29, 2023. \nClaimant was a rod buster for the Respondent/Employer. A rod buster is one who \nconstructs concrete foundations at construction sites. Claimant slipped on some mud on \nthe ground and fell while carrying rebar, injuring the left side of his hip on September 9, \n2022.  This  occurred  during  the  course  and  scope  of  his  employment.  The  Claimant \n\nCHAVEZ H301483 \n \n5 \n \nreported  this  incident  the  same day  and  was  sent home.  The  Claimant did not  receive \nmedical treatment for his injury until November 22, 2022, 74 days after the incident.  Dr. \nSherita  Willis  noted  that  the  Claimant  had  left  hip  tenderness,  limited  range  of  motion, \nand prescribed him Tylenol and Ibuprofen for his injury. The Claimant was later ordered \nan MRI by Dr. John Rocco Rodney. The Claimant received an MRI on March 27, 2023, \nin  Baltimore,  Maryland.  The  physicians  at  Community  Radiology  Associates  found  a \n“...2.) Low-grade partial- thickness tears at the origins of bilateral hamstring tendons, 3.) \nLow- grade partial- thickness tears at the insertions of the left gluteus minimus and medius \ntendons,  4.)  Low-grade  partial-  thickness  tears  at  insertion  of  the  right  gluteus  medius \ntendon.” CL Post Hearing Brief Ex. 4.  \nThe Respondents initially accepted this claim as a medical-only one and paid some \nbenefits.  The  Claimant,  while  receiving  these  benefits,  continued  to  work  for  the \nRespondent/Employer until March 21, 2023. Claimant performed light duty work such as \nworking with equipment that bends rods, cut rods, or manually wrap bands around rods. \nWhen  these  jobs  became  difficult  the  Claimant  was  allowed  to  pick  up  scrap.  The \nClaimant continued to get paid his regular wage. The Claimant quit his job on March 21, \n2023, because he had unbearable pain. The Claimant moved to Silver Springs, Maryland \nand was not getting any rehabilitation treatment for his work-related hip injury. The reason \nfor not getting continued rehab treatment for his hip was a lack of insurance. The Claimant \nwas  questioned  as  to  why  he  did  not  request  workers  compensation  to  pay  for  his \nrehabilitation.  Claimant  stated  he  signed  some  papers  and  returned  them  to  the \nRespondent or Commission. Since then, he has not heard anything from the Respondent \n\nCHAVEZ H301483 \n \n6 \n \nor the Commission about continued treatment on his hip. Moreover, the Claimant could \nnot state what papers he signed nor when they were sent.  \nOn June 2, 2023, the Claimant, while walking, was struck on the left side of his hip \nby an automobile and went to the hospital. Claimant suffered a left leg femur fracture and \nlater  needed  rehab  for  his  left  hip  resulting  from  the  vehicle  incident.  Claimant  further \ntestified that he received Maryland state health insurance six weeks before the vehicle \nincident. No proof was provided proving that Claimant acquired insurance in Maryland. \nWhen testifying about his rehabilitation  Claimant stated he was getting treatment down \nthe outer side of his left leg for the work-related injury. On the other hand, Claimant stated \nhe  was  getting  rehab  treatment  down  the  front  of  his  left  leg  due  to  the  motor  vehicle \nincident. The Claimant testified that he was getting rehab treatment for his hip a month \nand  a  half  before  the  motor  vehicle  injury.  The  Claimant  testified  he  was  getting \nrehabilitation treatment for the left hip due to both the work injury and the motor vehicle \ninjury. However, the focus of treatment for each incident were allegedly in different areas \nof the left hip.  \nAdjudication \nA. Whether Claimant sustained a compensable left hip injury. \n \nArkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \nmedical services or results in disability or death.  An injury is “accidental” \nonly if it is caused by a specific incident and is identifiable by time and place \nof occurrence[.] \n \n\nCHAVEZ H301483 \n \n7 \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe  element  “arising  out  of  .  .  .  [the]  employment”  relates  to  the  causal  connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when  a  causal  connection  between  work  conditions  and  the  injury  is  apparent  to  the \nrational mind.”  Id. \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.  Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness but may accept and translate into findings of fact only those portions of \nthe testimony that it deems worthy of belief.  Id. \n\nCHAVEZ H301483 \n \n8 \n \nThe Claimant has satisfied his burden with objective findings as to his work-related \nleft hip injury on September 9, 2022. The Claimant sustained internal harm to his body. \nClaimant had an MRI of his left hip in Baltimore, Maryland. The physicians at Community \nRadiology Associates found a “...2.) Low-grade partial- thickness tears at the origins of \nbilateral hamstring tendons, 3.) Low- grade partial- thickness tears at the insertions of the \nleft  gluteus  minimus  and  medius  tendons,  4.)  Low-grade  partial-  thickness  tears  at \ninsertion of the right gluteus medius tendon.” CL Post Hearing Brief Ex. 4. I credit the MRI \nreport for Claimant’s March 27, 2023, exam date created by the Community Radiology \nAssociates. This  injury  occurred  by  specific  incident  during  the  scope  and  course  of \nClaimant’s employment when he slipped on some mud on the ground while carrying rebar \nfor the Respondent/Employer. The Claimant also needed medical treatment and received \nan MRI. Thus, I find by the preponderance of the evidence that the Claimant sustained a \ncompensable left hip injury during the course and scope of his employment on September \n9, 2022.  \n \nB. Whether Claimant is entitled to any additional reasonable and necessary \nmedical treatment rendered after January of 2023. \n \nArkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states  that  an \nemployer  shall  provide  for  an  injured  employee  such  medical  treatment  as  may be \nnecessary in connection with the injury received by the employee.  Wal-Mart Stores, Inc. \nv. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only for \nsuch treatment and services as are deemed necessary for the treatment of the claimant’s \ninjuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  The claimant \nmust prove by a preponderance of the evidence that medical treatment is reasonable and \n\nCHAVEZ H301483 \n \n9 \n \nnecessary for the treatment of a compensable injury.  Brown, supra; Geo Specialty Chem. \nv. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).  What constitutes reasonable and \nnecessary   medical   treatment   is   a  question   of  fact  for   the   Commission.   White \nConsolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As the Arkansas Court of Appeals has held, a claimant may be entitled to additional \ntreatment  even  after  the  healing  period  has  ended,  if  said  treatment  is  geared  toward \nmanagement of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 \n(1983).  Such services can include those for the purpose of diagnosing the nature and \nextent  of  the  compensable  injury;  reducing  or  alleviating  symptoms  resulting  from  the \ncompensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing  further \ndeterioration of the damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \nThe  Claimant  is  entitled  to  reasonable  and  necessary  medical  treatment  for  his \ncompensable  left  hip  injury.  No  evidence  was  presented that  shows  that  Claimant  had \ncompleted  his  healing  period.  I  find  by  the  preponderance  of  the  evidence  that  all  the \nmedical  treatment  paid  for  by  the  Respondents  for  the  treatment  of  Claimant’s  work-\nrelated left hip injury were reasonable and necessary, including the x-rays and an MRI. \nClaimant testified that he received physical rehabilitation services for his work-related left \nhip  injury  in  Maryland  approximately  six  weeks  before his  June  2, 2023,  motor  vehicle \nincident. I don’t credit this testimony. I don’t have any physical therapy records verifying \nthe purpose of this treatment or that the treatment had actually taken place. There is no \n\nCHAVEZ H301483 \n \n10 \n \nreason, and no reason was given why the physical therapy records were not provided to \nthe  Respondents  and  the  Commission  given  this  full  hearing  had  taken  place  months \nafter the alleged treatment. Therefore, I cannot find by the preponderance of the evidence \nthat this treatment was reasonable and necessary. The Claimant has mentioned no other \ntreatment for his left hip work-related injury. \nHowever,  regarding  additional  medical  treatment,  Respondents  have  taken  the \nposition  that  Claimant  was  injured  in  a  subsequent  non-work-related  motor  vehicle \nincident  that  occurred  on  June  2,  2023,  and  that  incident  constituted  an  independent \nintervening cause, relieving Respondents from further responsibility for the September 9, \n2022, incident.  In this regard, the pertinent section of the Act provides: \nUnder this subdivision (4)(F), benefits shall not be payable for a condition \nwhich   results   for   a   nonwork-related   independent   intervening   cause \nfollowing  a  compensable  injury  which  causes  or  prolongs  disability  or  a \nneed for treatment.  A nonwork-related independent intervening cause does \nnot require negligence or recklessness on the part of a claimant. \n \nArk. Code Ann. § 11-9-102(f)(F)(iii) (Supp. 2011).  The test for determining if a subsequent \nepisode  is  an  aggravation  or  a  recurrence  is  whether  the  subsequent  episode was \nprecipitated by an independent intervening cause or was a natural and probable result of \nthe first injury.  Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 167-68, 969 S.W.2d \n677  (1998).    The  initial  question  is  whether  a  causal  connection  between the  primary \ninjury and the subsequent disability exists; and provided such a connection is established, \nthere is no independent intervening cause unless the subsequent disability is triggered \nby activity by the claimant that is unreasonable under the circumstances.  Guidry v. J&R \nEads Const. Co., 11 Ark. App. 219, 223, 669 S.W.2d 483 (1984).  Respondents bear the \nburden of proving an independent intervening cause by a preponderance of the evidence \n\nCHAVEZ H301483 \n \n11 \n \nunder Ark. Code Ann. § 11-9-705(a)(3) (Supp. 2011). \n As previously stated, a claimant’s testimony is never considered uncontroverted.  \nNix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination \nof  a  witness’  credibility  and  how  much  weight  to  accord  to  that  person’s  testimony are \nsolely  up  to  the  Commission.   White  v.  Gregg  Agricultural  Ent.,  72  Ark.  App.  309,  37 \nS.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting  evidence  and \ndetermine the true facts.  Id.  In so doing, the Commission is not required to believe the \ntestimony of the claimant or any other witness but may accept and translate into findings \nof fact only those portions of the testimony that it deems worthy of belief.  Id. \nThe Claimant’s motor vehicle incident was unrelated to his work. The motor vehicle \nincident took place a few months after Claimant had  voluntarily ended  his employment \nwith  Respondent/Employer.  The  motor  vehicle  incident  also  occurred  in  a  completely \ndifferent  state,  Maryland,  than  where  his  work-related  injury  occurred,  Arkansas.  The \nevidence preponderates that Claimant was crossing the street in Maryland and a motorist \nstruck him on the left side of his hip where he previously sustained his compensable left \nhip  work-related  injury. This  incident  resulted  in  a  fracture  to  Claimant’s  left  femur.  It’s \nclear  there  is  no causal  connection  between  the  Claimant’s  work  injury  and  the \nsubsequent  motor  vehicle  incident.  Thus,  I  find  Claimant’s  June  2,  2023,  automobile \nincident as wholly independent of his work-related injury. Based on this finding, I further \nfind  by  the  preponderance  of  the  evidence  that  the  Respondents  have proven  an \nindependent  intervening  cause  and  are  no  longer  responsible for  the  Claimant’s \ncompensable left hip injury after June 2, 2023. \n \n\nCHAVEZ H301483 \n \n12 \n \nC. Whether Claimant is entitled to temporary total benefits from September 9, \n2022, to a date yet to be determined. \n \nTemporary total disability for unscheduled injuries is that period within the healing \nperiod in which the Claimant suffers total incapacity to earn wages. Ark. State Highway \nand Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing \nperiod ends when the underlying condition causing the disability has become stable and \nnothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. \nParker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). The Claimant continued to work for the \nRespondent/Employer until March 21, 2023. The Claimant’s attorney stated in his post-\nhearing brief that Claimant quit his job due to unbearable pain. The Claimant was on light \nduty when he quit working for the Respondent/Employer and moved to his home state of \nMaryland. Claimant  quit  his  job  voluntarily  and  without  a  doctor’s  orders.  I  don’t  credit \nClaimant’s reason for quitting his job due to unbearable pain. This was never brought out \nin his sworn testimony. Though I find he did voluntarily quit his job, I find that he did so to \nmove to his home state of Maryland.  Claimant has the responsibility of proving that he \nsuffered a total incapacity to earn wages. No credible evidence was presented showing \nthat the Claimant had indeed suffered a total incapacity to earn wages due to his work-\nrelated injury. Thus, I find that the Claimant did not prove by the preponderance of the \nevidence that he is entitled to temporary total disability benefits. \nD. Whether Claimant is entitled to an impairment rating and permanent partial \ndisability benefits. \nI  find  the  same  for  Claimant’s  request  for  permanent  partial  disability  benefits. \nPermanent  impairment,  generally  a  medical  condition,  is  any  permanent functional  or \nanatomical loss remaining after the healing period has been reached.  Ouachita Marine  \n  \n\nCHAVEZ H301483 \n \n13 \n \nv. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969).  Pursuant to Ark. Code Ann. § 11-9-\n522(g) (Repl. 2002), the Commission adopted the Fourth Edition of the AMA Guides as \nan impairment rating guide.  See AWCC R. 099.34.  A determination of the existence or \nextent of physical impairment must be supported by objective and measurable physical \nor mental findings.  Ark. Code Ann. § 11-9-704(c)(1)(B) (Repl. 2012).  Permanent benefits \nare to be awarded only following a determination that the compensable injury is the major \ncause of the disability or impairment.  Id. § 11-9-102(F)(ii).  “Major cause” is defined as \n“more  than  fifty  percent  (50%)  of  the  cause,”  and  a  finding  of  major  cause  must  be \nestablished by a preponderance of the evidence.  Id. § 11-9-102(14).  Any medical opinion \nmust be stated within a reasonable degree of medical certainty.  Id. § 11-9-102(16). \nClaimant  has  the  responsibility  to  present  to  the  Commission  evidence  that \nClaimant has reached the end  of his healing period on his compensable left hip injury. \nThe Claimant has not presented any evidence that Claimant has reached the end of his \nhealing  period.  Moreover,  the  Claimant  must  further  present objective  and  measurable \nevidence  of  any  permanent  functional  or  anatomical  loss  remaining  after  the  healing \nperiod has been reached. The Claimant has presented no such evidence concerning his \nleft  hip  compensable  injury.  Thus,  I  find  that  the  Claimant  did  not  prove  by  the \npreponderance of the evidence that he is entitled to permanent partial disability benefits. \nBased  on  the  findings  of  this opinion,  I am not awarding  any  indemnity  benefits  in this \nmatter thus rendering the issue of an attorney’s fee moot. \n \n \n \n\nCHAVEZ H301483 \n \n14 \n \n \n \nCONCLUSION AND AWARD \n Respondents are hereby directed to act in accordance with the findings of fact and \nconclusions of law set forth above.  \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","textLength":25144,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301483 ELIAS CHAVEZ, EMPLOYEE CLAIMANT THOMPSON CONSTRUCTION GROUP, INC., EMPLOYER RESPONDENT ZURICH AMERICAN INSURANCE CO., CARRIER RESPONDENT OPINION FILED NOVEMBER 29, 2023 Hearing before Administrative Law Judge Steven Porch on October 6, 2023, in Marion...","outcome":"granted","outcomeKeywords":["granted:4","denied:1"],"injuryKeywords":["hip","back","fracture"],"fetchedAt":"2026-05-19T23:00:54.759Z"},{"id":"alj-G506221-2023-11-29","awccNumber":"G506221","decisionDate":"2023-11-29","decisionYear":2023,"opinionType":"alj","claimantName":"Roger Grubbs","employerName":null,"title":"GRUBBS VS.SOUTHERN PERSONNEL MANAGEMENT, INC. AWCC# G506221 NOVEMBER 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GRUBBS_ROGER_G506221_20231129.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRUBBS_ROGER_G506221_20231129.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G506221 \n \nROGER GRUBBS, Employee                                                                          CLAIMANT \n \nSOUTHERN PERSONNEL MANAGEMENT, INC.,                             RESPONDENT #1 \nDBA CABINET SHOP \n \nAMTRUST NORTH AMERICA Carrier/TPA                                         RESPONDENT #1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND              RESPONDENT #2 \n                                                                                                  \n \n \n OPINION FILED NOVEMBER 29, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by WILLIAM C. FRYE, Attorney, Little Rock, Arkansas. \n \nRespondent #2 represented by DAVID L. PAKE, Attorney, Little Rock, Arkansas; \nalthough not participating in hearing. \n \n \n STATEMENT OF THE CASE \n  \n On November 13, 2023, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on March 1, 2023 and a pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The prior opinions in this matter are final. \n\nGrubbs – G506221 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Temporary total disability benefits from September 13, 2022 through a date  \nyet to be determined. \n2.     Additional medical treatment, including SI joint surgery recommended by Dr.  \nBlankenship. \n3.  Attorney fee. \nThe  claimant  contends  that  his  authorized  treating  physician  is  recommending \nadditional treatment and has opined that as of September 12, 2022 the claimant remained \nunable to work.  Dr. Blankenship has not released the claimant to return to work pending \nthe claimant’s receipt of recommended medical treatment.  The claimant contends that \nthe SI joint surgery recommended by Dr. Blankenship is reasonably necessary treatment \nin view of the fact that Dr. Blankenship and Dr. Cannon have both utilized conservative \nmodalities that have not adequately addressed the claimant’s significant and ongoing \nproblems.  Claimant contends his attorney is entitled to an attorney’s fee on all indemnity \nbenefits owed to claimant. \nRespondent #1 contends that claimant is not entitled to any additional benefits. \nRespondent #2 defers to the outcome of litigation and waives its right to attend the \nhearing. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nGrubbs – G506221 \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non March 1, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to additional medical treatment, including SI joint surgery recommended \nby Dr. Blankenship.     \n 3.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to temporary total disability benefits beginning September 13, 2022 and \ncontinuing through a date yet to be determined. \n 4.      Respondent  has  controverted  claimant’s  entitlement  to  all  unpaid  indemnity \nbenefits. \n \n \n FACTUAL BACKGROUND \n The  claimant  has  worked  for  the  owners  of  the  Cabinet  Shop  since  1975, \nperforming  carpentry  work.    While  working  for  respondent  claimant  suffered  two \ncompensable injuries as a result of motor vehicle accidents.  The second motor vehicle \naccident occurred on August 7, 2015, and is the subject of this particular claim. \n Following  a  hearing  on  January  29,  2018,  an  opinion  was  filed  on  February  28, \n2018  by  this  administrative  law  judge  finding  that  claimant  had  proven  a  compensable \ninjury  to  his  cervical,  thoracic  and  lumbar  spine  on  August  7,  2015.    In  that  opinion \nclaimant was awarded additional medical treatment recommended by Dr. Blankenship.  \nThat decision was appealed to the Full Commission which in an opinion filed August 1, \n\nGrubbs – G506221 \n \n4 \n \n2018  affirmed  the  finding  of  compensability  and  award of  medical  treatment  by  Dr. \nBlankenship.    Dr.  Blankenship performed  surgery  in  the  form of  a  fusion  on  claimant’s \nlumbar spine on April 9, 2020 and assigned claimant an impairment rating in an amount \nequal to 12% to the body as a whole as a result of that injury. \n A second hearing on this claim was conducted on May 3, 2021, and in an opinion \nfiled  June  10,  2021  this  administrative  law  judge  found  that  claimant  was  entitled  to \nadditional permanent partial disability benefits in an amount equal to 30% to the body as \na result of his August 7, 2015 compensable injury.  That opinion was not appealed and \nthe parties have stipulated that all prior opinions are final. \n Since  the  time  of  the  last  hearing  claimant  has  continued  to  treat  with  Dr. \nBlankenship for spinal complaints.  In a report dated May 6, 2021, Dr. Blankenship noted \nthat claimant was having some low back pain on his lefthand side.  He stated that an SI \njoint examination was positive in all five testings.  Dr. Blankenship further stated that it \nwas not uncommon for someone who had undergone lumbar arthrodesis to have SI joint \npain.    It  was  his  opinion  that  claimant  needed  additional  medical  treatment  for  this \ncondition and he referred claimant to Dr. Cannon for a left SI joint injection. \n Claimant returned on August 19, 2021 to Dr. Blankenship following the injection.  \nDr.  Blankenship’s  report  indicated  that  claimant  achieved  70%  relief  as  a  result  of  the \ninjection and he recommended that claimant continue home exercises and return in eight \nweeks.   \n Claimant  returned  to  Dr.  Blankenship  on  September  2,  2021,  indicating  that  his \nlow back and left buttock pain had gotten significantly worse over the last couple of weeks.  \nBased upon claimant’s failure to respond to exercise and the injection, Dr. Blankenship  \n\nGrubbs – G506221 \n \n5 \n \nrecommended a left SI joint arthrodesis.  Dr. Blankenship indicated that the arthrodesis \nwas  directly  related  to  claimant’s  lumbar  stabilization  which  was  necessitated  by \nclaimant’s work-related injury. \n Respondent  did  not  approve  the  surgical  procedure  by  Dr.  Blankenship,  but \ninstead sent claimant for an evaluation by Dr. Tomecek.  Dr. Tomecek in a report dated \nDecember 1, 2021 recommended further diagnostic testing in the form of a thoracic and \nlumbar myelogram CT scan.  He also indicated that if claimant did have SI joint pathology, \nhe would recommend more physical therapy and an additional injection before surgery.  \nHowever,  it  was  his  opinion  that  absent  additional  diagnostic  testing  there  was  no \ndefinitive diagnosis. \n Claimant underwent the myelogram CT scan of his thoracic and lumbar spine and \nreturned to Dr. Tomecek on January 17, 2022.  Dr. Tomecek noted that there was some \nerosion around the anterior cages and around the sacral screws.  It was also his opinion \nthat claimant had an autofusion of the left sacroiliac joint with a large osteophyte on the \nsacroiliac joint.  Accordingly, he did not agree with Dr. Blankenship’s recommendation, \nbut instead recommended non-operative treatment which would include an injection and \nreferral to surgery for removal of the large osteophyte. \n Shortly  after  this  evaluation  by  Dr.  Tomecek,  claimant  again  returned  to  Dr. \nBlankenship.  Claimant testified that prior to this visit he stretched his left leg, it popped \nand as a result, his SI joint pain resolved.  Dr. Blankenship’s report of February 21, 2022 \nindicates that claimant informed him that  his SI joint pain had completely resolved and \nwas no longer hurting.  As a result, Dr. Blankenship no longer recommended surgery but \ninstead indicated that claimant had reached surgical MMI.   \n\nGrubbs – G506221 \n \n6 \n \n Claimant returned to Dr. Blankenship on September 12, 2022 indicating that his \npain  had  significantly  worsened.    Dr.  Blankenship’s  report  of  that  date    indicates  that \nclaimant rated his pain as 100% of the worst pain imaginable.  Dr. Blankenship indicated \nthat his SI joint exam again revealed 5 of 5 positive findings and he again sent claimant \nto Dr. Cannon for a left SI joint injection.   \n This injection was performed by Dr. Cannon on November 14, 2022, and claimant \nreturned  to  Dr.  Blankenship  on  December  8,  2022.    Dr.  Blankenship  indicated  that \nclaimant  obtained  some  relief  from  the  injection,  but  it  was  temporary  in  nature.    Dr. \nBlankenship opined that another injection was unlikely to provide any long term benefits \nand as a result, he recommended that claimant proceed with a left SI joint arthrodesis. \n Claimant was again seen by Dr. Tomecek on May 4, 2023, and again Dr. Tomecek \ndisagreed  with  the  surgical  procedure  recommended  by  Dr.  Blankenship.    Finally,  in  a \nreport dated August 10, 2023, Dr. Blankenship again noted that claimant’s SI joint exam \nwas positive and stated that there was no question that claimant had SI pathology that \nwas causing his pain and he again recommended the SI joint arthrodesis. \n Claimant  has  filed  this  claim  contending  that  the  surgery  proposed  by  Dr. \nBlankenship is reasonable and necessary medical treatment for his compensable injury.  \nHe  also  seeks payment of temporary  total disability  benefits  from September 13, 2022 \nthrough a date yet to be determined. \n  \nADJUDICATION \n Claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  that \nmedical treatment is reasonably necessary.  Stone v. Dollar General Stores, 91 Ark. App. \n\nGrubbs – G506221 \n \n7 \n \n260, 209 S.W. 3d 445 (2005).  What constitutes reasonably necessary medical treatment \nis a question of fact for the Commission.  Wright Contracting Company v. Randall, 12 Ark. \nApp. 358, 676 S.W. 2d 750 (1984). \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  met  his  burden  of  proving  by a \npreponderance  of  the  evidence  that  he  is  entitled  to  additional  medical  treatment, \nincluding SI joint surgery as recommended by Dr. Blankenship. \n It is clear from a review of the reports from Dr. Blankenship and Dr. Tomecek that \nthey  have  totally  different  views  of  the  source  of  claimant’s  complaints  as  well  as  the \nrecommended  treatment.    Dr.  Blankenship’s  opinion  is  based  upon  his  physical \nexamination of the claimant as well as claimant’s response to injections provided by Dr. \nCannon.  On the other hand, Dr. Tomecek’s opinion is primarily based upon a myelogram \nCT  scan  which  he  ordered  and  reviewed.    Based  upon  his  reading  of  that  test,  Dr. \nTomecek is of the opinion that claimant already has an autofusion of his SI joint; therefore, \nsurgery on the SI joint is not recommended. \n I  find  that  the  opinion  of  Dr.  Blankenship  is  entitled  to  greater  weight  than  the \nopinion  of  Dr.  Tomecek  under  the  circumstances.  While  Dr.  Tomecek  has  seen  the \nclaimant on three different occasions, Dr. Blankenship has seen the claimant on multiple \noccasions  and  he  previously  performed  surgery  on  claimant’s  lumbar  spine  in  2020.   \nSince that time, he has continued to treat claimant for various spinal ailments and he has \nnow recommended an SI joint fusion.  Under these circumstances, I find that the opinion \nof  Dr.  Blankenship  is  entitled  to  greater  weight  and  based  upon  his  opinion  I  find  that \nclaimant has met his burden of proving by a preponderance of the evidence that he is \n\nGrubbs – G506221 \n \n8 \n \nentitled  to  additional  medical  treatment  for  his  compensable  injury.    This  treatment \nincludes the SI joint surgery recommended by Dr. Blankenship. \n In  reaching  this  decision,  I  note  that  Dr.  Blankenship  has  opined  that  Dr. \nTomecek’s opinion regarding any of Dr. Blankenship’s patients are invalid because Dr. \nTomecek previously testified in a malpractice claim against Dr. Blankenship.  According \nto  Dr.  Blankenship,  Dr.  Tomecek  was  subsequently  censored  by  a  neurological \nassociation for that testimony.  I do not find any of these accusations to be controlling in \nthis particular case.  Instead, my decision regarding Dr. Blankenship’s opinion is based \nupon  the  fact  that  he has been  claimant’s  treating physician  for  several  years  and  has \npreviously performed surgery on claimant’s lumbar spine.   \n I also find that claimant has met his burden of proving by a preponderance of the \nevidence  that  he  is  entitled  to  additional  temporary  total  disability  benefits  beginning \nSeptember 13, 2022 and continuing through a date yet to be determined.  In order to be \nentitled  to  temporary  total  disability  benefits,  claimant  has  the  burden  of  proving  by  a \npreponderance  of  the  evidence  that  he  remains  within  his  healing  period  and  that  he \nsuffers a total incapacity to earn wages.  Arkansas State Highway & Transportation Dept. \nv. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).  \n Based  upon  Dr.  Blankenship’s  opinion,  I  note  that  claimant  remains  within  his \nhealing  period  based  upon  his  recommendation  for  surgery.    In  fact, even  though  Dr. \nTomecek  disagrees  with  Dr.  Blankenship’s  recommendation  for  surgery,  Dr.  Tomecek \nalso indicated that claimant was in need of additional medical treatment.  Accordingly, I \nfind that claimant has remained within his healing period. \n I also find that claimant has suffered a total incapacity to earn wages.  Claimant \n\nGrubbs – G506221 \n \n9 \n \nwas  seen  by  Dr.  Blankenship  on  September  12,  2022,  at  which  time  Dr.  Blankenship \nrecommended that claimant return to Dr. Cannon for a left SI joint injection.  In a work \nnote dated September 21, 2022, Dr. Blankenship noted that claimant had been treated \non September 12, 2022 and stated: \n  Patient will need to remain off work until after recommended \n  injections and patient has followed up. \n \n \n Claimant did undergo the injection which provided only temporary relief and as a \nresult  Dr.  Blankenship has  now  recommended  the  SI  joint  fusion.    Based  upon  this \nevidence, I find that claimant has suffered a total incapacity to earn wages since the day \nafter his evaluation by Dr. Blankenship on September 12, 2022. \n Accordingly,  I  find  that  claimant  is  entitled  to  temporary  total  disability  benefits \nbeginning September 13, 2022 and continuing through a date yet to be determined.  I do \nnote that at the hearing there was some discussion that respondent paid some additional \ntemporary  total  disability  benefits  subsequent  to  September  13,  2022.    Obviously, \nrespondent  would be entitled  to  a  credit  for any  temporary  total  disability  benefits  paid \nafter that date. \n      \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe is entitled to additional medical treatment for his compensable injury.  This includes \nthe  recommended  surgery  by  Dr.  Blankenship.    Claimant  is  also  entitled  to  temporary \ntotal disability benefits beginning September 13, 2022 and continuing through a date yet \nto  be  determined.    Respondent  is  entitled  to  a  credit  for  any  temporary total  disability \n\nGrubbs – G506221 \n \n10 \n \nbenefits   paid   subsequent   to   that   date.   Respondent   has   controverted   claimant’s \nentitlement to any unpaid indemnity benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \nRespondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $335.80. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n    _______________________________________ \n     GREGORY K. STEWART \n     ADMINISTRATIVE LAW JUDGE","textLength":17262,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G506221 ROGER GRUBBS, Employee CLAIMANT SOUTHERN PERSONNEL MANAGEMENT, INC., RESPONDENT #1 DBA CABINET SHOP AMTRUST NORTH AMERICA Carrier/TPA RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED NOVEMBER 29, 2023 Hearing b...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["cervical","thoracic","lumbar","back"],"fetchedAt":"2026-05-19T23:00:56.825Z"},{"id":"alj-G701936-2023-11-27","awccNumber":"G701936","decisionDate":"2023-11-27","decisionYear":2023,"opinionType":"alj","claimantName":"Federico Montelongo","employerName":"Tyson Poultry, Inc","title":"MONTELONGO VS. TYSON POULTRY, INC. AWCC# G701936 NOVEMBER 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MONTELONGO_FEDERICO_G701936_20231127.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MONTELONGO_FEDERICO_G701936_20231127.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G701936 \n \nFEDERICO MONTELONGO, Employee                                                         CLAIMANT \n \nTYSON POULTRY, INC., Employer                                                     RESPONDENT #1 \n \nTYNET CORPORATION, Carrier/TPA                                                 RESPONDENT #1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND              RESPONDENT #2 \n                                                                                                  \n \n \n OPINION FILED NOVEMBER 27, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \nRespondent #2 represented by CHRISTY L. KING, Attorney, Little Rock, Arkansas; \nalthough not participating in hearing. \n \n \n STATEMENT OF THE CASE \n  \n On November 13, 2023, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on September 27, 2023 and \na  pre-hearing  order  was  filed  on  that  same date.   A  copy  of  the  pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   All prior opinions are final. \n\nMontelongo – G701936 \n \n2 \n \n 3.      Respondent  #1  has  accepted  and  paid  permanent  partial  disability benefits \nbased upon a 37% rating to the leg below the hip. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Claimant’s entitlement to additional medical treatment for his compensable \nright knee injury. \n2.     Statute of limitations. \n The   claimant   contends   he   requires   additional   medical   treatment   for   his \ncompensable right knee injury. \n Respondent   #1   contends   that   all   appropriate   benefits   have   been   paid.  \nRespondent #1 raises the statute of limitations as a defense. \n Respondent #2 did not participate in the conference and waived its right to appear \nat the hearing. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non September  27,  2023  and  contained  in  a  pre-hearing  order  filed that  same  date  are \nhereby accepted as fact. \n 2.    Claimant’s claim for additional medical treatment is barred by the statute of \nlimitations. \n\nMontelongo – G701936 \n \n3 \n \n FACTUAL BACKGROUND \n The claimant is a 63-year-old man who suffered a compensable injury to his right \nknee in September 2016.  Claimant’s primary medical provider for his right knee has been \nDr. Sidani whose treatment included a right total knee arthroplasty in 2020.   \n On June 10, 2021, claimant was evaluated by Dr. Sidani and his report indicates \nthat this evaluation was one and a half years after claimant’s right knee arthroplasty and \nthat although claimant was having some pain and weakness in his knee he was much \nbetter  than before  surgery.    His examination  showed  no obvious  effusion;  full  range of \nmotion;  slight  laxity  at  mid  flexion,  but  no  instability;  balanced  ligaments;  and  normal \ntracking  of  the  patella.    Dr.  Sidani  also  noted  that  claimant’s  x-rays  showed  a  good \nposition and alignment of his right knee prosthesis.  There were no signs of loosening or \nfailure. Dr. Sidani noted that claimant was doing well and had very little, if any, instability.  \nDr. Sidani indicated that he and claimant discussed the possibility of the use of a brace, \nbut claimant stated that his knee did not bother him enough to wear a brace.  Dr. Sidani \nrecommended continued observation, full duty work and follow up as needed.   \n Claimant returned to Dr. Sidani on November 16, 2021 with right knee pain.  Dr. \nSidani noted that over the last two weeks claimant began having some stabbing pain in \nthe  medial  side  of  his  knee.    Dr.  Sidani  diagnosed  claimant  with  an  MCL  sprain and \nrecommended  a  home  exercise  program  and  the  use  of  a  knee  brace  while working.  \nClaimant  returned  to  Dr.  Sidani  on  December  20,  2021,  and  stated  that  his knee  was \nmuch better.  Dr. Sidani’s examination showed a full range of motion without effusion.  Dr. \nSidani stated: \n   \n\nMontelongo – G701936 \n \n4 \n \n  Right MCL sprain, status post total knee arthroplasty. \n  I feel it is healed.  It shows no instability.  Good strength, \n  full range of motion.  We will release from our care today \n  and for this injury according the AMA Guidelines qualifies \n  for 0% additional disability for his right total knee arthro- \n  plasty. \n \n \n Claimant did not return to Dr. Sidani for any right knee problems until August 15, \n2023, when he was evaluated for right knee pain.  Dr. Sidani gave claimant an injection \non that date and prescribed anti-inflammatories and physical therapy. \n Respondent has not accepted liability for the additional medical treatment provided \nby Dr. Sidani on August 15, 2023.  As a result, claimant has filed this claim contending \nthat he is entitled to additional medical treatment for his compensable right knee injury. \n \nADJUDICATION \n Claimant  contends  that  he  is  entitled  to  additional  medical  treatment  for  his \ncompensable right knee injury.  Respondent contends that claimant’s claim for additional \nmedical treatment is barred by the statute of limitations. \n The time limitation for requesting additional compensation benefits is codified at \nA.C.A. §11-9-702(b)(1) which states: \n  In cases in which any compensation, including disability or \n  medical, has been paid on account of injury, a claim for \n  additional compensation shall be barred unless filed with \n  the commission within one (1) year from the date of the \n  last payment of compensation or two (2) years from the \n  date of the injury, whichever is greater. \n \n \n Claimant has the burden of proving by a preponderance of the evidence that he \nacted within the time allowed for filing a claim for additional compensation.  Kent v. Single \n\nMontelongo – G701936 \n \n5 \n \nSource Transp., Inc., 103 Ark. App. 151, 287 S.W. 3d 619 (2008).   \n It is the furnishing of medical services, not the payment therefor, which constitutes \npayment of compensation.  Heflin v. Pepsi Cola Bottling Company, 244 Ark. 195, 198, \n424 S.W. 2d 365, 367 (1968).  Claimant is “compensated” by the furnishing of medical \nservices and not by the payment of the charges therefore.  Id.; see also Plante v. Tyson \nFoods, Inc., 319 Ark. 126, 129, 890 S.W. 2d 253, 255 (1994).   \n In this particular case, respondent submitted payment records indicating that it last \npaid  compensation  for  the  medical  treatment  claimant  received  from  Dr.  Sidani  on \nDecember 20, 2021.  Therefore, claimant had one year from December 20, 2021, to file \na claim for additional compensation benefits.  The parties have agreed that claimant did \nnot file an AR-C requesting additional compensation benefits but that claimant requested \na  hearing  for  additional  benefits  by  letter  dated  August  23,  2023.   Clearly,  this  letter \nrequesting additional compensation benefits was more than one year from the date of last \npayment  of  compensation  on  December  20,  2021.    Therefore,    more than  one  year \npassed from the last payment of compensation on December 20, 2021 until the request \nfor additional compensation benefits on August 23, 2023 and pursuant to A.C.A. §11-9-\n702(b)(1), this claim for additional compensation benefits is barred.   \n In  reaching  this  decision,  I  note  that  the  documentary  evidence  does  contain \nnumerous medical records from Dr. Sidani regarding his treatment for parts of his body \nwhich did not include his right knee.  Claimant has acknowledged that during those visits \nDr. Sidani did not treat his right knee.  Accordingly, there is no question that claimant did \nnot seek any additional medical treatment for his right knee from December 20, 2021 until \nAugust 15, 2023.   \n\nMontelongo – G701936 \n \n6 \n \nORDER \n Claimant’s claim for additional compensation benefits is barred by the statute of \nlimitations.  Claimant’s request for additional compensation was not filed until August 23, \n2023.  This was more than one year from the date of last payment of compensation which \noccurred  on  December  20,  2021,  for  medical  treatment  provided  by  Dr.  Sidani.  \nAccordingly, claimant’s claim for additional compensation benefits is hereby denied and \ndismissed. \n Respondent  is  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $224.30. \n IT IS SO ORDERED. \n \n     _________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":9404,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G701936 FEDERICO MONTELONGO, Employee CLAIMANT TYSON POULTRY, INC., Employer RESPONDENT #1 TYNET CORPORATION, Carrier/TPA RESPONDENT #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED NOVEMBER 27, 2023 Hearing before ADMINISTRATIVE...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["hip","knee","sprain"],"fetchedAt":"2026-05-19T23:00:50.558Z"},{"id":"alj-H003073-2023-11-22","awccNumber":"H003073","decisionDate":"2023-11-22","decisionYear":2023,"opinionType":"alj","claimantName":"Kenneth Brewton","employerName":"May Avenue Plumbing, Inc","title":"BREWTON VS. MAY AVENUE PLUMBING, INC. AWCC# H003073 NOVEMBER 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BREWTON_KENNETH_H003073_20231122.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BREWTON_KENNETH_H003073_20231122.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H003073 \n \nKENNETH BREWTON, Employee                                                                  CLAIMANT \n \nMAY AVENUE PLUMBING, INC., Employer                                            RESPONDENT \n \nUNITED FIRE & CASUALTY COMPANY, Carrier                                    RESPONDENT                         \n \n \n OPINION FILED NOVEMBER 22, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n \n STATEMENT OF THE CASE \n  \n On November 13, 2023, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on August 2, 2023 and a pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   Claimant sustained compensable injuries to his left shoulder and low back on \nJanuary 7, 2020. \n 3.   Claimant was earning an average weekly wage of $840.00 which would entitle \nhim  to  compensation  at  the  weekly  rates  of  $560.00  for  total  disability  benefits  and \n\nBrewton – H003073 \n \n2 \n \n$420.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability  of injury to claimant’s cervical spine on January 7, 2020. \n2.     Related medical. \nThe claimant contends that he sustained a compensable injury to his cervical spine \nas  a  result  of  his  January  7,  2020  job  related  accident  and  that  he  is  entitled  to \ncompensation in the form of medical benefits as needed and any additional compensation \nto which he may become entitled. \nThe  respondents  contend  the  claimant  did  not  sustain  a  compensable  cervical \nspine injury on January 7, 2020.  While some medical was paid associated with an alleged \ncervical  spine  injury,  claimant’s  issues  are  degenerative  in  nature.    Alternatively, \nrespondents contend that additional medical treatment is not reasonable and necessary. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non August 2, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his cervical spine on January 7, 2020. \n\nBrewton – H003073 \n \n3 \n \n 3.   Respondent is liable for payment of all reasonable and necessary medical \ntreatment provided in connection with claimant’s compensable cervical spine injury \nthrough July 30, 2021.    \n \n \n FACTUAL BACKGROUND \n The claimant began working for respondent in 2010 or 2011.  On January 7, the \nclaimant was sitting at a stoplight when he was rearended by another vehicle.  Although \nclaimant  initially  denied  having  been  injured  in  that  accident,  later  that  day  he  sought \nmedical treatment from the emergency room for complaints of neck and back pain. \n After   the   initial   emergency   room   treatment,   claimant   was   treated   at   Elite \nChiropractic and those notes indicate that claimant was treated for cervical and lumbar \nspine sprains.  At some point claimant’s left shoulder became his primary concern and \nclaimant was referred to Dr. Greg Jones for further evaluation.  In a report dated April 3, \n2020,  Dr.  Jones  indicated  that  an  MRI  scan  and  his  examination  had  confirmed  that \nclaimant  suffered  a  rotator  cuff  tear.    Dr.  Jones  performed  surgery  on  claimant’s  left \nshoulder on May 26, 2020.   \n Dr. Jones’ medical reports also indicate that he evaluated claimant for his cervical \nspine complaints and provided treatment in the form of a  Medrol Dosepak and physical \ntherapy.  Dr.  Jones  subsequently  released  claimant from  his  care  for  the  cervical  spine \ninjury. \nClaimant continued to have complaints involving his left shoulder, and as a result \nDr. Jones performed a second surgical procedure on January 21, 2021.  \nMost recently, claimant has been evaluated by Dr. Saer and Dr. Blankenship for \n\nBrewton – H003073 \n \n4 \n \ncontinued complaints involving his low back injury. \nThe respondent accepted as compensable injuries to claimant’s left shoulder and \nlow back as a result of the accident on January 7, 2020.  The respondent apparently also \npaid some benefits for claimant’s cervical spine complaints, but have now controverted \ncompensability of an injury to claimant’s cervical spine.  Accordingly, claimant has filed \nthis  claim  contending  that  he  suffered  a  compensable  injury to  his  cervical  spine  on \nJanuary 7, 2020.  He seeks payment of medical related to that compensable injury. \n \nADJUDICATION \n Claimant contends that he suffered a compensable injury to his cervical spine as \na result of the motor vehicle accident on January 7, 2020.  Claimant’s claim is for a specific \ninjury identifiable by time and place of occurrence.  In order to prove a compensable injury \nas the result of a specific incident that is identifiable by time and place of occurrence, a \nclaimant must establish by a preponderance of the evidence (1) an injury arising out of \nand in the course of employment; (2) the injury caused internal or external harm to the \nbody  which  required  medical  services  or  resulted  in  disability  or  death;  (3)  medical \nevidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was \ncaused by a specific incident identifiable by time and place of occurrence.  Odd Jobs and \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  met  his  burden  of  proving  by a \npreponderance of the evidence that he suffered a compensable injury to his cervical spine \non January 7, 2020.  First, I find that claimant’s injury arose out of and in the course of \n\nBrewton – H003073 \n \n5 \n \nhis employment and that the injury was caused by a specific incident identifiable by time \nand place of occurrence. As previously noted, the parties have stipulated that  claimant \nsuffered compensable injuries to his left shoulder and low back as a result of the motor \nvehicle accident which occurred on January 7, 2020.  Accordingly, there is no question \nthat at the time of the injury claimant was in the course and scope of his employment and \nthat he was involved in a specific incident identifiable by time and place of occurrence. \n I  also  find  that  claimant’s  injury  caused  internal  harm  to  the  body  that  required \nmedical  services  and  that  he  has  offered  medical  evidence  supported  by  objective \nfindings  establishing  an  injury.    Here,  as  previously  noted,  claimant  sought  medical \ntreatment  on  the  day  of  the  accident  from  the  emergency  room  where  his  complaints \nincluded both neck and low back pain.  Shortly thereafter, claimant came under the care \nof Elite Chiropractic on January 31, 2020.  In the medical notes from that date, Dr. Carroll \nstated: \n  Hypertonicity is palpable in the left cervical region, left \n  trapezius, left scalenus and left SCM.   \n \n \n In Walker v. Fort Smith Rim & Bow, Full Commission Opinion filed November 14, \n2006  (F206791), the Full Commission  found that hypertonicity or muscle spasms were \nconsidered  objective  findings  for  purposes  of  permanent  impairment.    Accordingly, \nhypertonicity would be considered an objective finding for purposes of compensability as \nwell.    In  addition,  I  note  that  in  Dr.  Jones’  report  of  September  9, 2020,  he  stated  that \nclaimant had a lot of cervical spasm.  Spasms are considered objective findings. \n As a result of claimant’s cervical complaints, he has received medical treatment in \nthe form of chiropractic treatment and evaluations by Dr. Jones. \n\nBrewton – H003073 \n \n6 \n \n Based  upon  the  foregoing  evidence,  I  find  that  claimant’s  cervical  spine  injury \ncaused internal or external harm to his body that required medical services and that he \nhas offered medical evidence supported by objective findings establishing an injury.  \n Accordingly, I find that claimant has met his burden of proving by a preponderance \nof the evidence that he suffered a compensable injury to his cervical spine on January 7, \n2020. \n Claimant contends that he is entitled to payment of related medical  treatment for \nhis  compensable  cervical  spine  injury.    Respondent  acknowledges  that  it  paid  some \nmedical  treatment  associated  with  claimant’s  cervical  spine  complaints.    I  find  that \nclaimant has met his burden of proving by a preponderance of the evidence that he is \nentitled  to payment  for  medical  treatment provided  for  his  cervical  spine  injury  through \nJuly 30, 2021. \n As previously noted, following the emergency room evaluation claimant received \nchiropractic care for his cervical spine based upon a cervical sprain diagnosis.  Medical \nreports  from  Elite  Chiropractic  dated  April  30,  2020  and  June  30,  2020  indicate  that \nclaimant at that point in time stated that he was experiencing no pain in his neck. \n On May 26, 2020, claimant underwent the first surgery on his left shoulder by Dr. \nJones.  In a report dated September 9, 2020, Dr. Jones stated that he was seeing claimant \nfor an evaluation of pain in his neck with a crick.  He also stated that claimant was suffering \nfrom  cervical  spasm.    Dr.  Jones  indicated  that  he  was  going  to  get  an MRI  scan  of \nclaimant’s  cervical  spine,  place  claimant  on  a  Medrol  Dosepak,  and  send  claimant  to \nphysical therapy for his cervical spine complaints.  \n Claimant began physical therapy for his cervical spine on September 17, 2020 and \n\nBrewton – H003073 \n \n7 \n \nreturned to see Dr. Jones on September 30, 2020.  In his report of that date, Dr. Jones \nindicated that claimant’s neck pain had resolved.   \n   \nWe had seen him at the last visit in early September.  He \n  had a tremendous crick in his neck and head [sic] terrible  \n  radicular pain. I put him on a Medrol Dosepak and a \n  category one cervical spine program and he has responded \n  beautifully.  He has full range of motion of his neck today. \n  He states the pain is gone and in fact he states he wants \n  to go back to work. \n \n  PLAN:  I think he had a spell.  He is over it.  We are going \n  to release him at this point.  No permanent disability is \n  assigned and he is to return to his regular duty status and \n  a note is added to the chart. \n \n \n Thereafter, claimant returned to Dr. Jones with increased shoulder pain as a result \nof his work activities and Dr. Jones eventually performed a second surgery on claimant’s \nleft shoulder on January 21, 2021.   \n In that interim period of time between the release by Dr. Jones on September 30, \n2020  and  the  second  surgical  procedure  on  his  left  shoulder  on  January 21,  2021, \nclaimant had returned to Elite Chiropractic.  In a report dated December 14, 2020, Elite \nstated that claimant denied the presence of pain in his neck. \n Subsequent medical records from Elite do mention claimant’s cervical region but \ndo  not  indicate  that  claimant  received  any  treatment  to  his  cervical  spine  during those \nvisits.    In  addition,  claimant  returned  to  Dr.  Jones  on  January  6,  2021  for complaints \ninvolving his left shoulder.  However, Dr. Jones also stated: \n  \n  His cervical spine we worked up.  He has some degenerative \n  disc disease.  He has asked why can we not “fix that”.  In the \n  spirit of a plumber, in the idea of fixing things, it makes sense, \n\nBrewton – H003073 \n \n8 \n \n  and we have spent some time today counseling that \n  that’s not quite how the neck works and that, unless \n  he is having specific radicular or more straight axial \n  pain, I don’t think that surgery in his neck will be of \n  benefit in terms of his improvement for return to work. \n \n \n There is no indication that Dr. Jones provided any additional medical treatment for \nclaimant’s cervical spine after that date.  The medical reports also indicate that claimant \nwas evaluated by Dr. Saer on July 30, 2021.  Dr. Saer indicated that he had seen claimant \nin  June  for  problems  with  his  neck  and  that  a  cervical  MRI  scan  was  not “terribly \nimpressive.” As a  result, Dr. Saer ordered an EMG/NCV study to explain numbness in \nclaimant’s left arm and hand.  According to Dr. Saer, the study was performed on July 19, \n2021  and  was  basically  normal.    There  is  no  indication  that  claimant  received any \nadditional treatment by Dr. Saer for any cervical spine complaints subsequent to that date.  \nLikewise,  claimant  has  since  came  under  the  care  of  Dr.  Blankenship  for  complaints \ninvolving  his  low  back  injury.  Dr.  Blankenship’s  medical  reports  do  not  indicate  any \ntreatment regarding claimant’s cervical spine. \n Claimant has the burden of proving by a preponderance of the evidence that he is \nentitled to additional medical treatment for his cervical spine complaints.  While I find that \nclaimant has proven that he suffered a compensable injury to his cervical spine, I find that \nclaimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he is  entitled  to \nmedical treatment for his cervical spine injury subsequent to July 30, 2021, when he was \nevaluated by Dr. Saer. \n In  reaching  this  decision,  I  note  that  according  to  claimant’s  testimony  the \nrespondent  went  out  of  business  and  as  a  result  claimant  decided  to  obtain  his  own \n\nBrewton – H003073 \n \n9 \n \nmaster  plumber’s  license.    Claimant  obtained  that  license  in  2021  and  according  to \ndocuments  from  the  Arkansas  Secretary  of  State  the  claimant  incorporated  Brewton \nPlumbing Service on March 1, 2022. \n Accordingly,  as  of  September  30,  2020,  Dr.  Jones  indicated  that  claimant  had \nresponded to treatment for his cervical spine and that he had full range of motion and that \nhis pain had gone.  In addition, claimant indicated that he wanted to return to work.   In \nfact, claimant acknowledged that he had no pain as of that date and wanted to return to \nwork. \n  Q You indicated to Dr. Jones on that date that you had \n  no pain and wanted to return to work; is that right? \n \n  A I believe so, right. \n \n \n Although Dr. Jones mentioned claimant’s cervical spine in his report of January 6, \n2021,  he  had  no  additional  treatment  to  offer  claimant  as  of  that  date  but instead \ncontinued  to  treat  claimant’s  left  shoulder  including  a  second  surgery  on  January  21, \n2021.  After that date, claimant became a master plumber and began performing work for \nhis own plumbing business.  Subsequently, Dr. Saer ordered an MRI scan that was not \nimpressive and he provided no further treatment to claimant’s cervical spine. \n Based upon the foregoing evidence, I find that respondent is liable for payment of \nall reasonable and necessary medical treatment provided in connection with claimant’s \ncervical spine injury through July 30, 2021.  I find that claimant has failed to prove by a \npreponderance  of  the  evidence  that  any  subsequent  cervical  complaints  after July  30, \n2021 are causally related to his original compensable injury.  On September 30, 2020, \nclaimant informed Dr. Jones that he was not having any neck pain and he had full range \n\nBrewton – H003073 \n \n10 \n \nof motion.  Thereafter, claimant began performing work as a plumber for his own plumbing \nbusiness. \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe suffered a compensable injury to his cervical spine on January 7, 2021.  Respondent \nis liable for all reasonable and necessary medical treatment provided in connection with \nclaimant’s cervical spine injury through July 30, 2021. Claimant has failed to prove by a \npreponderance of the evidence that he is entitled to additional medical treatment for his \ncervical spine injury subsequent to that date. \nPursuant to A.C.A. §11-9-715(a)(1)(B)(ii), attorney fees are awarded “only on the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no \nindemnity benefits were controverted and awarded; therefore, no attorney fee has been \nawarded.   Instead, claimant’s attorney is free to voluntarily contract with the medical \nproviders pursuant to A.C.A. §11-9-715(a)(4). \n Respondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $453.80. \n IT IS SO ORDERED. \n \n     _________________________________________ \n      GREGORY K. STEWART    \n      ADMINISTRATIVE LAW JUDGE","textLength":17630,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H003073 KENNETH BREWTON, Employee CLAIMANT MAY AVENUE PLUMBING, INC., Employer RESPONDENT UNITED FIRE & CASUALTY COMPANY, Carrier RESPONDENT OPINION FILED NOVEMBER 22, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian ...","outcome":"granted","outcomeKeywords":["granted:5","denied:2"],"injuryKeywords":["shoulder","back","cervical","neck","lumbar","sprain"],"fetchedAt":"2026-05-19T23:00:48.494Z"},{"id":"alj-H301904-2023-11-21","awccNumber":"H301904","decisionDate":"2023-11-21","decisionYear":2023,"opinionType":"alj","claimantName":"Jace Gentry","employerName":"Emery Sapp & Sons","title":"GENTRY VS. EMERY SAPP & SONS AWCC# H301904 NOVEMBER 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GENTRY_JACE_H301904_20231121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GENTRY_JACE_H301904_20231121.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H301904 \n \nJACE GENTRY, Employee       CLAIMANT \n \nEMERY SAPP & SONS, Employer     RESPONDENT \n \nGALLAGHER BASSETT SERVICES, INC., Carrier/TPA   RESPONDENT \n \n \n OPINION FILED NOVEMBER 21, 2023  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by LEE MULDROW, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn March 22, 2023, the claimant filed an AR-C requesting various compensation benefits \nin  which  he  alleged  a  heat-related  cardiac  injury  on  or  about  March  6,  2023.  The  claim  was \ndenied  in  its  entirety.  There  has  been  no  request  for  a  hearing  or  additional  activity  by  the \nclaimant since the filing of the Form AR-C. \n On July 20, 2023, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed for lack of prosecution. A hearing was scheduled for October 24, 2023. Notice of that \nhearing was sent to the claimant by certified mail, return receipt requested on September 6, 2023. \nUnited States Postal Department records indicate that claimant received and signed for the notice \non  September  8,  2023.  Despite  having  received  notice  of  the  scheduled  hearing,  the  claimant \nfailed to appear at the hearing and has failed to respond to the motion in any form or manner. \n\nGentry – H301904 \n \n-2- \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2469,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H301904 JACE GENTRY, Employee CLAIMANT EMERY SAPP & SONS, Employer RESPONDENT GALLAGHER BASSETT SERVICES, INC., Carrier/TPA RESPONDENT OPINION FILED NOVEMBER 21, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County,...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:40.227Z"},{"id":"alj-H208861-2023-11-21","awccNumber":"H208861","decisionDate":"2023-11-21","decisionYear":2023,"opinionType":"alj","claimantName":"Delilar Harris","employerName":"Custom Craft Poultry, Inc","title":"HARRIS VS. CUSTOM CRAFT POULTRY, INC AWCC# H208861 NOVEMBER 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HARRIS_DELILAR_H208861_20231121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRIS_DELILAR_H208861_20231121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.  H208861 \n \nDELILAR HARRIS, EMPLOYEE           CLAIMANT \n \nCUSTOM CRAFT POULTRY, INC., EMPLOYER          RESPONDENT  \n \nOWNERS INSURANCE COMPANY/  \nCARRIER/TPA               RESPONDENT  \n \nOPINION FILED NOVEMBER 21, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas, on November 21, 2023. \n \nClaimant is pro se and did not appear. \n \nRespondents are represented by Mr. Zachary F. Ryburn, Attorney-at-Law of Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  November  21,  2023,  in  Little \nRock, Arkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation  Act.    The  claimant  contended  that  she  sustained an  injury  to  her  right \nshoulder on or about November 3, 2022, and filed a Form AR-C on December 22, 2022.    \nThe claim was accepted and all appropriate benefits were paid.  On February 8, 2023, \nclaimant was released to full-duty.  An Order was obtained from the Full Commission on \nAugust 25, 2023, that allowed the claimant’s attorney, Mr. B. Tanner Thomas, to withdraw \nfrom this matter.  The claimant has not requested a hearing and no action has been taken \nby the claimant in over six (6) months.  A Motion to Dismiss for failure to prosecute was \nfiled on August 29, 2023, and the claimant failed to respond to the motion.   \n\nHARRIS – H208861 \n \n2 \n \nA hearing was set for November 21, 2023, in regard to the Motion to Dismiss.  The \nclaimant failed to appear at the hearing after proper notice.  At the time of the hearing, \nMr. Zachary F. Ryburn appeared on behalf of the respondents and asked that the matter \nbe dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould  be  granted  and  this  matter  should  be  dismissed  without  prejudice  pursuant to \nArkansas  Code  Annotated  §11-9-702  and Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act at this time.   \nIT IS SO ORDERED: \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2641,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208861 DELILAR HARRIS, EMPLOYEE CLAIMANT CUSTOM CRAFT POULTRY, INC., EMPLOYER RESPONDENT OWNERS INSURANCE COMPANY/ CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 21, 2023 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski Count...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:00:42.297Z"},{"id":"alj-H206410-2023-11-21","awccNumber":"H206410","decisionDate":"2023-11-21","decisionYear":2023,"opinionType":"alj","claimantName":"Stephen Mcdaniel","employerName":"Sonic Drive-In Of Bald Knob, LLC","title":"MCDANIEL VS. SONIC DRIVE-IN OF BALD KNOB, LLC AWCC# H206410 NOVEMBER 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/McDANIEL_STEPHEN_H206410_20231121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"McDANIEL_STEPHEN_H206410_20231121.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H206410 \n \nSTEPHEN P. MCDANIEL, EMPLOYEE          CLAIMANT \n \nSONIC DRIVE-IN OF BALD KNOB, LLC, EMPLOYER         RESPONDENT  \n \nMILLFORD CASUALTY INSURANCE COMPANY/  \nGALLAGHER BASSETT SERVICES INC., \nCARRIER/TPA               RESPONDENT \n \nOPINION FILED NOVEMBER 21, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas, on November 21\nst\n,  2023. \n \nClaimant is pro se and did not appear. \n \nRespondents  are  represented  by  Mr.  Rick  Behring,  Jr.  Attorney-at-Law  of  Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  November  21,  2023,  in  Little \nRock, Arkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArkansas  Code  Annotated 11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation  Act.    The  claimant  contended  that  he  sustained  injuries  to  his  right \nshoulder and stomach while working for the Sonic in Bald Knob on August 21, 2022.  A \nForm AR-2 was filed by the respondents and the claim was controverted in its entirety.   \nOn or about November 22, 2022, the claimant through his former attorney filed a Form \nAR-C  requesting  initial  and  additional  benefits  as  a  result  of  the  alleged  claim.    The \nrespondent’s  attorney  propounded  Interrogatories  and  Requests  for  the  Production  of \nDocuments  on  or  about  October  17,  2022,  and  the  claimant  has  failed  or  refused  to \nrespond to the discovery.  On May 23, 2023, the claimant’s former attorney, Laura Beth \n\nMcDANIEL – H206410 \n \n2 \n \nYork,  obtained  an  Order  from  the  Full  Commission  allowing  her  to  withdraw  from  this \nmatter.  It is found that the claimant has not taken any action or made a bonafide request \nfor a hearing in more than six (6) months.  A Motion to Dismiss for failure to prosecute \nwas filed on August 11, 2023, and the claimant failed to respond to the motion.   \nA hearing was set for November 21, 2023, in regard to the Motion to Dismiss.  The \nclaimant failed to appear at the hearing after proper notice.  At the time of the hearing, \nRick  Behring  appeared  on  behalf  of  the  respondents  and  asked  that  the  matter  be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould  be  granted  and  this  matter  should  be  dismissed  without  prejudice  pursuant to \nArkansas  Code  Annotated  §11-9-702  and Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act at this time.   \nIT IS SO ORDERED: \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3102,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206410 STEPHEN P. MCDANIEL, EMPLOYEE CLAIMANT SONIC DRIVE-IN OF BALD KNOB, LLC, EMPLOYER RESPONDENT MILLFORD CASUALTY INSURANCE COMPANY/ GALLAGHER BASSETT SERVICES INC., CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 21, 2023 Hearing before Administrative L...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:00:44.360Z"},{"id":"alj-H202472-2023-11-21","awccNumber":"H202472","decisionDate":"2023-11-21","decisionYear":2023,"opinionType":"alj","claimantName":"Shane Ogrady","employerName":"City Of Bull Shoals","title":"O’GRADY VS. CITY OF BULL SHOALS AWCC# H202472 NOVEMBER 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/OGRADY_SHANE_H202472_20231121.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OGRADY_SHANE_H202472_20231121.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H202472 \n \nSHANE O’GRADY, Employee      CLAIMANT \n \nCITY OF BULL SHOALS, Employer     RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, Carrier/TPA    RESPONDENT \n \n \n OPINION FILED NOVEMBER 21, 2023  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent  represented  by  MARY  K.  EDWARDS,  Attorney  at  Law,  North  Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn June 15, 2022, the claimant’s attorney, Gary Davis, filed an AR-C requesting various \ncompensation  benefits  in  which he  alleged  injuries  to  his  head,  neck  and  left  shoulder  on  or \nabout  March  15,  2022.  The  claim  was  accepted  as  compensable,  and  all  related  benefits  were \npaid.  \nThe claimant, through his attorney, requested a hearing on October 25, 2022, on the issue \nof  additional  medical  treatment.  A  hearing  was  scheduled  for  March  21,  2023.  Mr.  Davis \nwithdrew the claimant’s hearing request on March 2, 2023, and entered a Motion to Withdraw as \nCounsel. The Commission granted the motion on March 30, 2023. No further action was taken in \nthis claim. \n\nO’Grady – H202472 \n \n-2- \n On August 11, 2023, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. A hearing was scheduled for November 7, 2023. Notice of \nthat hearing was sent to the claimant by certified mail, return receipt requested on September 25, \n2023. United States Postal Department records indicate that claimant received and signed for the \nnotice  on  September  28,  2023.  Despite  having  received  notice  of  the  scheduled  hearing,  the \nclaimant  failed  to  appear  at  the  hearing  and  has  failed  to  respond  to  the  motion  in  any  form  or \nmanner. \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2865,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H202472 SHANE O’GRADY, Employee CLAIMANT CITY OF BULL SHOALS, Employer RESPONDENT ARKANSAS MUNICIPAL LEAGUE, Carrier/TPA RESPONDENT OPINION FILED NOVEMBER 21, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["neck","shoulder"],"fetchedAt":"2026-05-19T23:00:46.427Z"},{"id":"alj-H202322-2023-11-20","awccNumber":"H202322","decisionDate":"2023-11-20","decisionYear":2023,"opinionType":"alj","claimantName":"Jowendean Blackwell","employerName":"L & R Distributors","title":"BLACKWELL VS. L & R DISTRIBUTORS AWCC# H202322 NOVEMBER 20, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BLACKWELL_JOWENDEAN_H202322_20231120.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BLACKWELL_JOWENDEAN_H202322_20231120.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H202322 \n \nJOWENDEAN M. BLACKWELL, EMPLOYEE     CLAIMANT \n \nL & R DISTRIBUTORS, EMPLOYER           RESPONDENT \n \nFIRST LIBERTY INSURANCE CORP./ \nLIBERTY MUTUAL GROUP, CARRIER/TPA          RESPONDENT \n \n \nOPINION FILED 20 NOVEMBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe, 15 November 2023, Little Rock, Arkansas. \n \nMs. Jowendean M. Blackwell appeared pro se. \n \nMr.  Zachary  M. Ryburn,  Attorney-at-Law  of  Little  Rock,  Arkansas, appeared for  the \nrespondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 15 November 2023.  The Commission’s file was incorporated by reference \nat the hearing.  \nThis case relates to a workplace injury from 18 January 2022.  A First Report of Injury \nwas filed with the Commission on 21 March 2022, listing an injury to the claimant’s hand.  A \nForm AR-C was later filed on 20 May 2022, claiming that the employee sustained a gradual \nonset injury to her right hand and thumb.  In an email sent to the Commission that same \nday, claimant’s counsel, Mr. Mark Alan Peoples, asserted that the date provided on the Form \nAR-C was an approximate date for the gradual onset injury and that a precise date of onset \nwas uncertain. \n The parties proceeded in litigating this claim, and a prehearing telephone conference \nwas conducted on 6 December 2023.  A Prehearing Order was subsequently issued with a \n\nBLACKWELL- H202322 \n2 \n \nhearing date set for 9 February 2023.  By way of a 30 January 2023 email from counsel, the \nclaimant sought to withdraw her request for a hearing.  That request was granted and the \nmatter was returned to the Clerk’s Office. \n A Joint Petition was later proposed and set for consideration on 5 April 2023.  The \nCommission received a request to remove the hearing from the docket and confirmed the \nsame action via letter on 13 March 2023.  On 26 May 2023 the respondents filed a Motion to \nDismiss under Arkansas  Code  Annotated § 11-9-702  and/or Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act for the claimant’s failure to prosecute this claim. Another Joint \nPetition  was submitted but  then  pulled  back  from  the  docket.  Mr.  Peoples  requested  to \nwithdraw his representation, and that request was granted in a 13 September 2023 Order \nfrom the Full Commission. \n The  respondents  renewed  their Motion  to Dismiss  on  15  September  2023,  and  the \nmatter  was  set  for  a  hearing  on 15  November  2023.  The  claimant  appeared  to  resist  the \nmotion to dismiss, urged that the case be allowed to proceed, and requested a full hearing on \nher claim.  She stated that she spoke with the Legal Advisors Division about opposing the \nmotion and decided to appear in person for that purpose rather than risk some defect in a \nfiling  to  that  end.  The  current  procedural  posture,  relevant  rules  and  procedures,  and \npossible next  steps  were  discussed  with  the  parties  from  the  bench.  The  claimant  was \nreminded  of  her  right  to  counsel  and  the  availability  of  the  Legal  Advisors  Division  as  a \npotential  resource  should  she  continue  proceeding pro  se.  I  advised  the  claimant  that  the \nMotion would be held in abeyance pending efforts by the parties to move towards a hearing.  \nAround the  time  relevant  to  the  rules  applying  to  a Motion  to Dismiss  an  action, \nattempts were made to bring this claim to resolution through a Joint Petition. Based on the \nrecord, the available evidence, and the arguments and discussion presented at the hearing, I \n\nBLACKWELL- H202322 \n3 \n \nfind that the respondents’ Motion to Dismiss should held in abeyance pending the claimant’s \npursuit of prosecuting her claim.   \nORDER \n A ruling on the respondents’ Motion is hereby held in abeyance pending further action \non the claim. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":4089,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H202322 JOWENDEAN M. BLACKWELL, EMPLOYEE CLAIMANT L & R DISTRIBUTORS, EMPLOYER RESPONDENT FIRST LIBERTY INSURANCE CORP./ LIBERTY MUTUAL GROUP, CARRIER/TPA RESPONDENT OPINION FILED 20 NOVEMBER 2023 Heard before Arkansas Workers’ Compensation Commission (A...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:00:38.170Z"},{"id":"alj-G708582-2023-11-17","awccNumber":"G708582","decisionDate":"2023-11-17","decisionYear":2023,"opinionType":"alj","claimantName":"Linda Bradley","employerName":"Pine Bluff School District","title":"BRADLEY VS. PINE BLUFF SCHOOL DISTRICT AWCC# G708582 NOVEMBER 17, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BRADLEY_LINDA_G708582_20231117.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRADLEY_LINDA_G708582_20231117.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G708582 \n \nLINDA K. BRADLEY, EMPLOYEE       CLAIMANT \n \nPINE BLUFF SCHOOL DISTRICT, EMPLOYER             RESPONDENT No 1 \n \nAR SCHOOL BOARDS ASSOC.-WCT, CARRIER/TPA                RESPONDENT No 1 \n \nDEATH & PERMANENT TOTAL DISABILITY \nTRUST FUND                 RESPONDENT No 2  \n \n \n \nOPINION FILED 17 NOVEMBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe on 10 August 2023 in Pine Bluff, Jefferson County, Arkansas. \n \nMs. Laura Beth York, Attorney-at-Law in Little Rock, Arkansas, appeared for the claimant. \n \nMs.  Melissa  Wood, Attorney-at-Law  in  Little  Rock,  Arkansas,  appeared  for  Respondent \nNo 1. \n \nMr. David L. Pake, Attorney-at-Law in Little Rock, Arkansas, waived appearing on behalf of \nRespondent No 2. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 10 August 2023 in Pine Bluff, Arkansas, after \nthe parties participated in a prehearing telephone conference on 18 April 2023. A Prehearing \nOrder, admitted to the record without objection as Commission’s Exhibit No 1, was entered \non the same day. The Order stated that the ISSUES TO BE LITIGATED were the claimant’s \nentitlement to permanent total disability or wage-loss disability benefits. All other ISSUES \nwere reserved. \nThe Prehearing Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n\nL. BRADLEY- G708582  \n2 \n \n2.  An employee/employer/carrier relationship existed between the parties on 4 December \n2017, when the claimant sustained compensable injuries to her neck and right shoulder. \n \n3.  Claimant’s average weekly wage (AWW) was $416.37, which entitled her to temporary \ntotal disability and permanent partial disability benefits at a rate of $278/$209 per week, \nrespectively. \n \nThe claimant was the sole WITNESS providing testimony at the hearing. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated by reference into the Prehearing Order and were as follows: \nThe  claimant  CONTENTDS that she  is  permanently  and  totally  disabled  or,  in  the \nalternative, that she has wage-loss as a result of the 4 December 2017 work injury and that \nher attorney is entitled to an attorney’s fee.  \nRespondent No 1 CONTENDS that all appropriate benefits have been paid with regard to \nthe claimant’s compensable injuries sustained on 4 December 2017. Further, the four percent \n(4%)  impairment  rating  assigned  by  Dr.  Pearce  was  accepted  and  paid. No  additional \ntreatment  has  been  recommended for the claimant’s neck injury. Dr. Pearce released the \nclaimant to full duty. Lastly, the claimant is not entitled to permanent disability benefits in \nexcess of the four percent (4%) rating. \nRespondent No 2 CONTENDS that it  defers  to  litigation  on  the  issue  of  the  extent  of \ndisability. It intends to waive its attendance if it is in agreement with Respondent No 1’s \ncontentions.\n1\n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving  reviewed  the  record  as  a  whole  and  having  heard  testimony  from  the  witness, \nobserving her demeanor, I make the following findings of fact and conclusions of law under \nACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n \n1\n As noted above, Respondent No 2 waived its appearance, as reflected in its statement on Contentions. \n\nL. BRADLEY- G708582  \n3 \n \n2. The stipulations offered by the parties are accepted as fact. \n \n3. The  claimant failed  to  establish, by  a  preponderance  of  the  evidence, that she  is \nentitled to the additional benefits sought in connection with her compensable injuries. \n \n4.  Accordingly, this claim is dismissed. \n \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE    \nA. Claimant on Direct-Examination  \nClaimant, Linda  Bradley, is  a sixty-two-year-old female with a bachelor’s degree in \npsychology.  She worked  briefly  under  a  cosmetology  license while  earning  her  degree. Ms. \nBradley also earned a certificate in secretarial word processing around 1990. [TR at 9-11.] \nHer  past  employment  includes  stints  with  the  Census  Bureau  as  a  form  editing  clerk  and \nworking as a program operations assistant at the Pine Bluff Convention Center. [TR at 12.] \nShe worked for a period of time as a para-professional with the local school district \nbefore taking a break from employment to help with family matters. She then began working \nas a correctional officer for the Arkansas Department of Corrections in the mid- to late-90s. \nThat work consisted of a broad array of duties, from booking new detainees to supervising \ninmate’s daily routines. [TR at 13-14.] At some point in that job, she injured her ankle during \nthe course of her employment. Ms. Bradley made a workers’ compensation claim related to \nthat injury and received some benefits, including medical treatment. She explained that her \nankle injury left her with some permanent restrictions in the correctional officer’s role and \nthat she ultimately left that job. [TR at 16.] \nThe claimant then began working as an administrative assistant at Kids First in Pine \nBluff. Ms. Bradley continued in that role for some time before beginning work around 2016 \nfor the respondent-employer, Pine Bluff School District, where she was a para-professional \nassisting disabled students. [TR at 17-18.] She was primarily assigned to a one-on-one role \nwith  a  student  whom  she  assisted  throughout  the  day.  The  claimant  also  assisted  with \n\nL. BRADLEY- G708582  \n4 \n \nanother student in the same classroom at different times during the day. [TR at 19.] She was \nassisting the second student when she was injured. \nOn 4 December 2017, the claimant was outside with the second child, waiting on her \nprimary  student  to  arrive,  when  he  suddenly  ran  into  the  building  unaccompanied.  Ms. \nBradley went after him and tripped as she was entering the building. [TR at 19.] She fell on \nor  toward  her  right  side,  injuring  her  right  arm  and  neck. [TR  at  20.] The  respondents \naccepted her claim as compensable, and she sought treatment. After an MRI revealed a tear \nor tears in her right shoulder, Dr. Gordon performed surgery on 19 April 2018. [TR at 21.] \nAccording to the claimant, the surgery did not improve her pain. \nMs. Bradley said that Dr. Gordon discussed another potential surgical procedure with \nher and suspected adhesive capsulitis, but she did not want another operation. [TR at 22.] \nShe  then  sought  another  opinion  from  Dr.  Reynolds,  who  ordered  an  MRI  of  her  cervical \nspine. That scan revealed some remarkable findings, and she was referred to Dr. McCarthy, \na  spine  specialist,  for  further  evaluation. [TR  at  23.] Dr.  McCarthy  did  not  feel  surgical \nintervention was appropriate, so she returned to Dr. Gordon, who performed a right-shoulder \naspiration in April of 2019. According to the claimant, that procedure did not provide relief \nfor her shoulder pain. [TR at 24.] \nThe claimant did not recall Dr. Gordon then referring her for pain management, but \nremembered seeing Dr. Ahmadi at UAMS after obtaining a Change of Physician order. Ms. \nBradley  confirmed  that  the  medical  records  reflected  Dr.  Ahmadi  recommending  an \narthroscopic  debridement  procedure  at the  end  of  September  of  2020  and  that  she  was \nhesitant to agree to another surgery. Id. When asked why, she responded, “The first surgery \ndidn’t help at all. It hurt, so I was cautious and I just was iffy about it. I don’t know. It wasn’t \ngoing to help me, that’s what my mind was telling me if, you know, you [are] dealing with \nthis pain, what if that pain is worse [after surgery].” [TR at 24-25.] \n\nL. BRADLEY- G708582  \n5 \n \nAfter Dr. Ahmadi left UAMS, the claimant followed up with Dr. Pearce, who ordered \nanother MRI in July of 2021. She stated that she didn’t recall Dr. Pearce discussing the MRI \nfindings or surgery with her, but that he released her from care. Dr. Pearce assessed a four \npercent (4%) impairment rating to the body as a whole. When he released her in 2022, she \ndid not feel that any of the treatment she received improved her condition. [TR at 25-26.] \nFollowing Dr. Pearce’s release, Ms. Bradley sought care from her PCP, Dr. Firmatura, \nwho “wrote a letter that [she was] permanently disabled as a result of that rotator cuff tear.” \nDr. Firmatura ordered nerve block treatment and referred her to Pain Treatment Centers of \nAmerica. [TR at 26.] She received some temporary pain relief, “but it went back to hurting.” \n[TR  at  27.]  The  claimant  testified  that  because  of  the  injury,  she  was  prescribed \nHydrocodone, Tizanidine, and Gabapentin.  She takes Hydrocodone and Tizanidine on a daily \nbasis, but does not take the Gabapentin “’cause it doesn’t help.” Id. According to the claimant, \nshe takes the medication about three (3) times a day and it can make her feel “drowsy, sleepy, \ndisoriented.” [TR at 28.]  \nMs. Bradley said that she returned to the respondent’s employment in a different job. \nThey “had me to do secretarial things, which hurt. Is – I  was,  like,  updating  schedules  or \nupdating process of special needs children coming tin to that program and every day it was, \nlike, typing; so it was a bunch of typing; so.” [TR at 29.] She indicated that being in a seated \nposition to type hurt her shoulder, and said that she could not perform her duties for eight \n(8) hours per day. [TR at 30.] The claimant testified that she was put back into a classroom \nwhere she graded papers, moved boxes, filed papers, and helped students; but she also had \nto intervene if children began fighting. Id. \nContinuing  her  testimony,  the  claimant  stated  that  after  helping  to  stop  one  fight \namongst students, her pain became worse. She was then asked, “what happened with your \nemployment?” and answered, “[m]y doctor took me off from work, because I was still hurting \n\nL. BRADLEY- G708582  \n6 \n \nand they fired me.” [TR at 34.] Ms. Bradley appealed her termination via a letter to the school \ndistrict. Id. As for her plans for returning to work, she said: \nFor me to heal, to get well, and to be able to, maybe, return, because I \ndidn’t know – I didn’t know that the – you know, I would still be hurting. So to \nme, that was unfair, because I had plans to go back to work, if I could, if the \nhealing process was feasible that I could, actually do what I needed to do at my \njob. I don’t want to be there and couldn’t do what I needed to do.  [TR at 35.] \n  \n The claimant testified that at some point after her termination, she applied for and \nwas approved for Social Security Disability. [TR at 36.] She did not believe that any of the \nconditions listed in her application previously prevented her from working. She was “almost \nsure” that she listed the rotator cuff injury, but  told  them  that  was  the  reason  for  her \napplication. The claimant previously applied for and was denied for Social Security Disability \nwhen she injured her ankle working for the Department of Correction. [TR at 39.] She stated \nthat  her  ankle  still  gives  her  trouble,  but  that  she  did  not  list  that  on  her  most  recent \napplication. When asked, “[d]o you think there’s any type of employment that you could do?” \nshe answered, “I don’t know. I don’t think so. Something that doesn’t require my right arm \nor ankle.” Id.  \n Reviewing again with counsel the jobs she’d worked in the past, the claimant stated \nthat she could not perform again in any of those jobs. [TR at 40-41.] Ms. Bradley said that \nher daily life activities have also been impacted by her pain. [TR at 42.] Her adult son and \ndaughter help her around the house. The claimant stated that she loves to read but cannot \nread like she used to, “[b]ecause I like cuddling with a book on my right side, but it’s so \npainful, I can’t.” [TR at 45.] She described her pain on the day of the hearing at eight (8) to \nnine (9) on a scale of one (1) to ten (10). [TR at 46.] \n B.  Claimant on Cross-Examination and Redirect \n Ms.  Bradley  began  her  cross-examination  by  disagreeing  to  some  extent  with  her \ndeposition  testimony  about  the  physicality  of  her  job  with  the  Department  of  Corrections, \n\nL. BRADLEY- G708582  \n7 \n \nwhich she had earlier described as “kind of” physical. She agreed that she described the job \nas “very physical” at the hearing. [TR  at  47.] As for  the difference  in  her descriptions,  she \noffered “I don’t know why I said that [referring to the deposition testimony]. Maybe I was \nscared.” [TR at 48.]  \n The claimant went on to agree that her treatment, except for with her family doctor \nand Pain Treatment Centers, was paid for through workers’ compensation. [TR at 50.] She \nstated that she began receiving Social Security Disability around April of 2021. Ms. Bradley \ntestified that she was working as a classroom para-professional at the end of the 2018 to 2019 \nschool year when she says her family doctor took her off work. [TR at 51-52.] She agreed that \nshe was terminated because her employer needed to fill the position that she could not work \nin. \n The  claimant  recalled  being  asked  at  her  deposition  whether  she  had  any \nphysician-ordered restrictions. Her response was, “[n]o, I don’t know. I haven’t asked. I just \nknow I am restricting myself, because it hurts to do it.” [TR at 52.] Ms. Bradley answered \nsome questions about past providers and agreed with a medical note showing that Dr. Pearce \noffered  and  she  declined  physical  therapy. [TR  at  54.] She  explained  that  past  physical \ntherapy had hurt and agreed that was the same time that she was released to regular work \nduties without restrictions. \n Ms. Bradley concluded her testimony on cross examination saying that she tries to go \nto the gym once or twice a week, but that she cannot do anything with her arm when she’s \nthere. [TR at 56.] \n During a brief redirect, the claimant stated that she began seeing Dr. Firmatura in \n2021, that he saw her for a number of conditions, and that he wrote a letter referring her to \npain management. [TR at 57-58.] She explained that a liver condition kept her from taking \npain medication for some time, but that the condition resolved, which allowed her to begin \n\nL. BRADLEY- G708582  \n8 \n \ntaking pain medication again. Ms. Bradley went on to state that even lifting a can of soup \nwith  her  right  arm  hurts  and  that  such  a  physical  restriction  is  a  result  of  the  workplace \naccident. [TR at 60.]  \nC.  Medical Evidence \nMs. Bradley sought some treatment for her shoulder injury before presenting on 19 \nApril 2018 for arthroscopic repair of her right rotator cuff tear with Dr. Gordon.\n2\n  See, [Cl. \nEx. No 1 at 31-41.] Use of her right arm was restricted and a return to work date of 2 May \n2018  was  authorized. [Id.  at  42.] She  followed up  in  clinic  on  1  May  2018, when  she  was \nordered to start physical therapy and continued off work until her pain was better controlled. \n[Id. at 43.] The claimant was next seen by Dr. Gordon on 29 May 2018, when his clinic note \nordered continued physical  therapy  and work restrictions of  no lifting,  pushing,  or  pulling \nover 5 pounds and no overhead use. He also provided a work letter limiting use of her right \narm until re-evaluating on 27 June 2018. [Id. at 47-49.] \nAt  her visit  in  the  end  of  June,  Dr.  Gordon  noted  slow  improvement  and  that  the \nclaimant  was  not  working  over  the  summer.  He  delayed  continuing  physical  therapy \nfor two-and-a-half weeks due to her complaints of pain. [Id. at 50.] Ms. Bradley next saw Dr. \nGordon on 1 August 2018, and he ordered an MRI because of her continued pain, stiffness, \nand weakness. [Id. at 55.] They reviewed the imaging on 7 August 2018, which revealed the \nrepair  to  be  structurally  intact.  Dr.  Gordon  suspected  her  pain  could  be  associated  with \nadhesive  capsulitis.  He  encouraged  continued  therapy  and  stretching and  a  follow-up  in \nanother month. [Id. at 57-58.]  \nThe  claimant  saw  Dr.  Gordon  again  on  5  September  2018,  when  she  continued  to \nreport pain and limited motion. She was reluctant to consider additional intervention, so Dr. \n \n2\n The OrthoArkansas website shows that Dr. Eric  Gordon is an  orthopaedic surgeon specializing in \nsports medicine, knees, and shoulders. \n\nL. BRADLEY- G708582  \n9 \n \nGordon referred her to Dr. Reynolds for another opinion. [Id. at 62.] Dr. Reynolds assessed \npossible postoperative adhesive capsulitis and cervical radiculopathy and recommended an \nMRI of the cervical spine to evaluate for radiculopathy. [Id at 67.] His review of the cervical \nMRI noted some degenerative changes and recommended further evaluation of the cervical \nspine, but did not recommend any further surgery for her right shoulder. [Id. at 73-74.] \nDr.  Kathryn  McCarthy next  saw  the  claimant on  23  October  2018 and  assessed  no \nintervention for the cervical MRI findings and did not correlate the claimant’s shoulder pain \nto the MRI findings. She noted that the “rotator cuff repair in her right shoulder has healed \nbased on MRI findings” and deferred to Dr. Gordon for further management. [Id. at 78.] \nMs. Bradley saw Dr. Gordon again on 23 January 2019. At nine (9) months out from \nsurgery, he noted her progress had been slow. He believed she would benefit from additional \nphysical therapy and suggested placing her at MMI if she did not make progress in the next \nsix  weeks. [Id.  at  80.] He  saw  her  again  on 6  March  2019.  They  discussed  that  additional \ninterventions beyond symptom management included diagnostic arthroscopy and aspiration \nto further evaluate for an infection, although the MRI did not show signs of an infection. She \ndid not wish to proceed surgically, but would consider the aspiration procedure. Regular work \nduties were to continue. [Id. at 84-85.] The aspiration was performed on 12 April 2019. [Id. \nat 88.] Dr. Gordon saw her again on 21 May 2019. She reported little change in her pain. The \nlab  results  from  the  aspiration  showed  no  signs  of infection.  Dr.  Gordon  recommended \nadditional physical therapy to improve her limited shoulder motion, but stated that he was \nnot sure what else to offer her at the time. [Id. at 92-93.] He returned her to regular work \nduty. \nThe claimant presented to Dr. Gordon’s office again on 2 July 2019 with complaints of \nongoing pain and limited motion. He noted: \n\nL. BRADLEY- G708582  \n10 \n \nI discussed with her that I am not certain what else can be done to help \nher symptoms. She has had adequate time to recover from her prior surgery. \nPostoperative   MRI   showed   her   repair   healing   appropriately.   We   saw \nadditional opinion  with  Dr.  Reynolds  and  even  worked  up  her cervical  spine \nwith  DR.  McCarthy,  that  did  not  really  give  a  cause  for  her  persistent  pain \nsymptoms. She is frustrated by this but I believe we have done about all I can \ndo for her. Discussed possible referral for evaluation by Dr. Paulus or Cayme \nas Physical Medicine and Rehabilitation specialists since things seemed to be \nstructurally  intact. Unfortunately there is  no  further  surgical  intervention  I \ncould confidently offer to provide pain relief. Follow up with me as needed.  [Id. \nat 99.]  \n \nHe provided a note returning her to regular duty work and for follow up with PMR. \nShe then saw Dr. Paulus on 18 July 2019. After reviewing her history and examining her, \nDr. Paulus could not offer any additional treatment options. [Id. at 104.] He returned her to \nwork without any restrictions. [Id. at 106.] \n Ms.  Bradley saw  Dr. Ahmadi  at  UAMS  on  3  September  2019. His  review  of  the \nimaging revealed no bony injury or malalignment and a healed, intact rotator cuff area. She \nreceived  a  lidocaine  injection  to  help  manage  her  pain and  they  discussed  non-operative \nmanagement  versus possible  arthroscopic  debridement  in  the  future.  He  noted  that  her \nactivity was not limited and released her without any restrictions. [Id. at 111-112, 114.] \n The claimant presented to Dr. Ahmadi’s clinic again on 26 May 2020 complaining of \npain. She was advised to “continue to use the right shoulder as much as possible,” and \nadditional physical therapy was recommended. [Id. at 119.] Ms. Bradley returned to the clinic \non 30 September 2020 when it was noted that she stopped physical therapy because of pain. \n[Id. at 120.] The note states that she would think about possible surgical options to address \nthe pain and return accordingly. [Id. at 124.] \n On  22  June  2021, Ms.  Bradley  returned  to  UAMS  where,  because  Dr.  Ahmadi  had \nmoved to another practice, she saw Dr. Pearce. He limited her to left arm duty pending an \nMRI. She returned after the MRI scan, and Dr. Pearce placed her at MMI on 27 July 2021. \nHe noted that she declined further physical therapy and returned her to regular duty without \n\nL. BRADLEY- G708582  \n11 \n \nrestrictions. [Id.  at  131.] Dr.  Pearce  then  provided  a  letter  dated  31  August  2021 to  the \nclaimant’s attorneys affirming that she reached MMI with no impairment rating, that she \nhad no restrictions, and that his opinion was within a reasonable degree of medical certainty. \n[Id. at 134.] \n The claimant’s medical records next include a letter from her PCP Dr. Firmatura,\n3\n \ndated 21 October 2021, which states in full: \n We are seeing this patient for all of her medical conditions. She is on \npermanent disability for right rotator cuff pathology. She had a right rotator \ncuff repair done April 2018 with minimal relief. We are no [sic] referring her \nto  pain  management  to  manage  her  pain.  If  you  have  any  questions  please \ncontact out [sic] office.  [Id. at 135.] \n  \nThe record  from  the  office  visit  apparently  associated  with  that  letter  notes  her \nemployment status as “Disabled, Disability started fell and hurt shoulder.” [Id. at 137.] \n Following Dr. Firmatura’s referral, she began treating at Pain Treatment Centers of \nAmerica on 18 November 2021. [Id. at 142-167, 169-186.] \n On 9 June 2022, Dr. Pearce dictated an addendum to his 27 June 2021 record, noting \na six percent (6%) PPI to the upper extremity, which translated to a four percent (4%) rating \nof the person as a whole according to the AMA 4\nth\n Edition guide. [Id. at 168.] \n The respondents  provided some additional  medical  records  not  included  in  the \nclaimant’s exhibits. See, [Resp. Ex. No 1.] Those records include a 26 January 2021 note from \na visit with Dr. Dill.\n4\n Right shoulder pain was among her complaints for that visit, and her \nemployment status at the time was listed as “Disabled.” [Id. at 18.] A note from another visit \nwith Dr. Dill states that she fell five months earlier onto her outstretched hands. [Id. at 22.] \n \n3\n It appears from the note that Dr. Firmatura is a provider at Family Health Associates of Southeast \nArkansas. \n4\n It  appears  from  the  note  that  Dr.  Dill  is  a  provider  at  Family  Health  Associates  of  Southeast \nArkansas. \n\nL. BRADLEY- G708582  \n12 \n \n It appears that her first visit with Dr. Firmatura was on 14 September 2021, when \nthe chief  complaint  is  listed  as establishing  care. [Id.  at  33.]  Similar to  the  note from  her \nvisit  with  Dr.  Firmatura  the  next  month, her employment status was listed as “Disabled, \nDisability started fell and hurt shoulder.”  [Id. at 34.] \nIV.  ADJUDICATION \n The  stipulations are  outlined  above and  accepted  as  facts. It  is  settled  that  the \nCommission, with the benefit of being in the presence of a witness and observing his or her \ndemeanor, determines a witness’ credibility and the appropriate weight to accord their \nstatements.  See, Wal-Mart  Stores,  Inc.  v.  VanWagner,  337  Ark.  443,  448,  990  S.W.2d  522 \n(1999). The Commission must sort through conflicting evidence and determine the true facts. \nIn so doing, the Commission is not required to believe the testimony of the claimant or any \nwitness,  but  may  accept  and  translate  into  findings  of  fact  only  those  portions  of  the \ntestimony that it deems worthy of belief. White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37  S.W.3d  649  (2001). It is further settled that a party’s testimony is never considered \nuncontroverted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). \nA.  The Claimant Failed to Prove by a Preponderance of the Evidence that she is \nEntitled to Permanent Total Disability.  \n \nArkansas law defines “Permanent Total Disability” as the inability, because of a \ncompensable  injury,  to  earn  any  meaningful  wages.  And  the  employee  has  the  burden  of \nproving  that  inability  to  earn  wages.  ACA.  §§  11-9-519(e)(1-2). A  permanent  impairment \nrating is not required to consider the effects of a compensable injury in a claim for permanent \ntotal disability. Rutherford v. Mid-Delta Community Services, Inc., 102 Ark. App. 317, 285 \nS.W.3d 248 (2008). \nHere, the claimant suffered a compensable injury to her right shoulder in December \nof 2017.  She  underwent  surgical  repair in  April  of  2018 and  began  physical  therapy. Her \n\nL. BRADLEY- G708582  \n13 \n \nrecovery was slow with ongoing reports of pain and stiffness. Ms. Bradley later underwent \nan aspiration to rule out a possible infection in the shoulder joint as a source of her otherwise \nunexplained pain. She reported that physical therapy caused her more pain and eventually \nstopped therapy altogether. Dr. Pearce placed Ms. Bradley at MMI and returned her to full \nduty without restrictions. He later assigned her a four percent (4%) impairment rating to the \nbody as a whole, which the respondents accepted and paid. \nThe record shows that Ms. Bradley was advised of her termination from the Pine Bluff \nSchool District  by way of  a  6  September  2019 letter indicating  her dismissal  for  failure  to \nreport to work for the 2019-2020 school year (noting eighteen consecutive days of absence on \nthe date of the letter). Her refusal to return to work as in spite of the many return to work \nauthorizations in the records. Explaining why she was not working or her possible plan for \nreturning to work, she said that she had plans to go back if “the healing process was feasible,” \nbut that she didn’t want to work if she couldn’t do what she needed to do. See, [TR at 35.] \nThe claimant states that she began receiving Social Security Disability around April \nof 2021, which would be consistent with her PCP’s letter from October 2021 referring her for \npain management and stating that she was “on permanent disability.” Findings of permanent \ndisability for the purposes of Social Security are different, however, from permanent and total \ndisability under Arkansas’s Workers’ Compensation laws. See Martin v. Jensen Construction \nCo., 2010 Ark. App. 294, 374 S.W.3d 774. Ms. Bradley recalled not being under any physician-\nordered restrictions, and only offered that she was restricting herself from working or even \nattempting to work because she was afraid of hurting herself. \nThe  claimant  failed  to  prove, by  a  preponderance  of  the  evidence, that  she  is \npermanently and totally disabled. Ms. Bradley did not offer persuasive testimony that she \nwas  totally  unable  to  earn  any  wages. Her  own  testimony  that  she  could  not  perform  any \nkind of work is not supported by the medical evidence. She did not describe attempts to find \n\nL. BRADLEY- G708582  \n14 \n \nwork or any  difficulties  associated  with  actually  attempting  any  work  duties.  Instead  she \nonly  suggested  generally  that  any  sort  of  work  she  was  familiar  with  would  be  impossible \nbecause of the physical requirements or because pain medication makes her feel tired. I find \nthe records consistent with Dr. Pearce’s release to be credible.  I  find  her  letter  from  Dr. \nFirmatura to be of little evidentiary value as it seems to be relating to her Social Security \nDisability determination and as she was self-reporting a “disability” status to his clinic from \nthe outset of her care with him.  \nAccordingly, I find that the claimant failed to prove by a preponderance of the evidence \nthat her compensable shoulder injury rendered her permanently and totally disabled. \nB. The Claimant Failed to Prove by a Preponderance of the Evidence that she is \nEntitled to Wage-loss Benefits. \n \nThe  wage-loss  factor is the extent to which an injured worker’s compensable  injury \nnegatively impacts that person’s ability to earn a livelihood. Rice v. Ga.-Pacific Corp., 72 Ark. \nApp.  148,  35  S.W.3d  328  (2000). “In considering claims for permanent partial disability \nbenefits in excess of the employee's percentage of permanent physical impairment, the \nWorkers' Compensation Commission may take into account, in addition to the percentage of \npermanent physical impairment, such factors as the employee's age, education, work \nexperience, and other matters reasonably expected to affect his or her future earning \ncapacity.” Ark. Code Ann. § 11-9-522(b)(1). A claimant’s motivation to return to work may be \nconsidered also. Rice, supra. If a work-related injury combines with a preexisting disease or \ncondition or the natural process of aging to cause or prolong the disability or need for \ntreatment, permanent benefits shall be payable for the resultant condition only if the \ncompensable injury is the major cause of the permanent disability or need for treatment. Ark. \nCode Ann. § 11-9-102(4)(F)(ii)(a). Major cause means something that is more than fifty \npercent (50%) of the cause. Ark. Code Ann. § 11-9-102(14)(A). \n\nL. BRADLEY- G708582  \n15 \n \nMs. Bradley chose not to return to her job despite several work release authorizations \nprovided by  her  physicians  through  the  course  of  her  treatment.  She  did  not  provide \ntestimony  about  how  she  now  earns wages  less  than  she  did  previously,  attributing  that \ndecrease in earnings to her compensable injury; nor did she testify that she attempted or was \nattempting to return to work. I do not find her motivated to return to work, and she testified \nto  as  much. Upon  her  presentation  to  establish  care  with  Dr.  Firmatura,  her  problem  list \nincluded:    (1)    diabetes    mellitus    with    diabetic    neuropathy,    (2)    hypertension,    (3) \nhyperlipidemia,  (4)  non-occlusive  coronary  artery  disease,  (5)  gastroesophageal  reflux \ndisease, (6) constipation, (7) morbid obesity, (8) lumbar radiculopathy, (9) sleep apnea, and \n(10) a Vitamin D deficiency. [Resp. Ex. No 1 at 37-38.] \nThe  claimant  is  over sixty  (60) years  old,  with a bachelor’s degree and secretarial \ncertification,  and  she  has ample experience  in  administrative duties from her corrections \nexperience and her work in education. Aside from general concern about hurting, she did not \nprovide persuasive evidence as to any loss in her ability to perform those functions or others \nfor  which  she  may  be  qualified.  Moreso,  she  did  not  provide persuasive  testimony  that \ndifficulty  in  the  workplace  would be  attributed  by  at  least  fifty percent (50%) to  her \ncompensable injury and not to any of the litany of other conditions with which she has been \ndiagnosed. \nThe claimant has no physician-ordered work restrictions, and the rating assigned by \nDr.  Pearce was  accepted  and  paid. I do  not find that  she prove, by  a preponderance  of  the \nevidence, that she is entitled to wage-loss disability. \nC. Attorney’s Fee \nConsistent  with  the  above,  the  claimant  fails  to  establish  that  he  is  entitled  to  an \nattorney’s fee. \nV.  ORDER \n\nL. BRADLEY- G708582  \n16 \n \n Consistent with the Findings of Fact and Conclusions of Law set forth above, this \nclaim is DENIED AND DISMISSED. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":32137,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G708582 LINDA K. BRADLEY, EMPLOYEE CLAIMANT PINE BLUFF SCHOOL DISTRICT, EMPLOYER RESPONDENT No 1 AR SCHOOL BOARDS ASSOC.-WCT, CARRIER/TPA RESPONDENT No 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT No 2 OPINION FILED 17 NOVEMBER 2023 Heard b...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1","denied:1"],"injuryKeywords":["neck","shoulder","ankle","cervical","rotator cuff","back","lumbar"],"fetchedAt":"2026-05-19T23:00:36.129Z"},{"id":"full_commission-H110044-2023-11-16","awccNumber":"H110044","decisionDate":"2023-11-16","decisionYear":2023,"opinionType":"full_commission","claimantName":"Scott Metzger","employerName":"Winsupply, Inc","title":"METZGER VS. WINSUPPLY, INC. AWCC# H110044 NOVEMBER 16, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Metzger_Scott_H110044_20231116.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Metzger_Scott_H110044_20231116.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H110044\n \n \nSCOTT METZGER, EMPLOYEE  CLAIMANT \n \nWINSUPPLY, INC., EMPLOYER RESPONDENT \n \nSENTRY CASUALTY INSURANCE COMPANY,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED NOVEMBER 16, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed July 18, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim. \n \n2.  That an employer/employee relationship existed on November 4, \n2020, the date that the claimant suffered a compensable injury, \nincluding but not limited to his neck and back. \n \n \n\n \nMETZGER - H110044  2\n  \n \n \n3. That the claimant’s average weekly wage was $1080.00, which \nentitled him to temporary total disability and permanent partial \ndisability in the amount of $711.00 / $533.00, respectively. \n \n4.  That the claimant has failed to satisfy the required burden of \nproof, by a preponderance of the credible evidence, to prove that \nthe medical treatment recommended by Dr. Frankowski is \ncausally related to and reasonably necessary for his work-related \ninjuries. \n \n5.  If not already paid, the respondents are ordered to pay for the \ncost of the transcript forthwith. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's July 18, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n \n \n \n\n \nMETZGER - H110044  3\n  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite concurs and dissents. \n \nDISSENTING OPINION \nThe Administrative Law Judge found that the Claimant failed to \nprove, by a preponderance of credible evidence, that he is entitled to \nmedical treatment recommended by Dr. Frankowski as causally related to \nand reasonably necessary for his work-related injuries.  I disagree, I would \nrule in favor of the Claimant receiving additional medical treatment by Dr. \nFrankowski as it is reasonably necessary for his work-related injuries.                                          \n An employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving entitlement to additional medical \ntreatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 \n(1999).  What constitutes reasonable and necessary medical treatment is a \nquestion of fact for the Commission.  White Consolidated Indus. v. \n\n \nMETZGER - H110044  4\n  \n \n \nGalloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut Corp. v. \nJones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).      \n The Arkansas Court of Appeals has held a claimant may be entitled \nto additional medical treatment even after the healing period has ended, if \nsaid treatment is geared toward management of the injury.  See Patchell v. \nWal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004); Artex \nHydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 (1983).  \nSuch services can include those for the purpose of diagnosing the nature \nand extent of the compensable injury; reducing or alleviating symptoms \nresulting from the compensable injury; maintaining the level of healing \nachieved; or preventing further deterioration of the damage produced by the \ncompensable injury.  Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 \nS.W.2d 593 (1995); Artex, supra.       \n In the present case, the Claimant has received two separate L4-L5 \ndiagnostic medial branch blocks.  After each procedure both Dr. Frankowski \nand Dr. Paulus advocated for further treatment in the form of a \nradiofrequency neurotomy at Claimant’s L4-5.  Dr. Frankowski opined “we \nfeel like he would still benefit ultimately from an RFN [Medical abbreviation \nof “Radiofrequency neurotomy”] treatment but would need documentation \nthat the medial branch diagnostic block was enough of a benefit,” and \n\n \nMETZGER - H110044  5\n  \n \n \nadvocated for a second diagnostic medial branch block so further \ndocumentation would show the benefits of this procedure to the Claimant.  \nDr. Paulus stated “Given [Claimant’s] appropriate benefit from a diagnostic \nmedial branch block, I discussed with the patient proceeding with \nradiofrequency neurotomy targeting bilateral L4-5 facet joints with the \nexpectation of more sustained relief.”  Claimant confirmed the success of \nthe diagnostic procedure at the hearing stating “it worked great” and he was \nexperiencing “tremendous relief.”  Claimant was a successful candidate for \nthe radiofrequency neurotomy of the L4-L5 to reduce his overall pain level \nwhich he received as a result of his admittedly compensable injury from his \nwork-related accident.               \n Therefore, I would rule that the Claimant has proved by a \npreponderance of the evidence that he is entitled to additional medical \ntreatment in the form of a bilateral radiofrequency neurotomy of the L4-L5 \nas recommended by Dr. Frankowski .       \n For the reasons stated above, I respectfully dissent. \n \n    ___________________________________ \n  M. SCOTT WILLHITE, Commissioner","textLength":6259,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H110044 SCOTT METZGER, EMPLOYEE CLAIMANT WINSUPPLY, INC., EMPLOYER RESPONDENT SENTRY CASUALTY INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 16, 2023 Upon review before the FULL COMMISSION in Little...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T22:29:46.094Z"},{"id":"alj-H103552-2023-11-16","awccNumber":"H103552","decisionDate":"2023-11-16","decisionYear":2023,"opinionType":"alj","claimantName":"Woodrow Jackson","employerName":"Rj Ii, Inc","title":"JACKSON VS. RJ II, INC AWCC# H103552 NOVEMBER 16, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JACKSON_WOODROW_H103552_20231116.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACKSON_WOODROW_H103552_20231116.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H103552 \n \nWOODROW JACKSON, JR., EMPLOYEE        CLAIMANT \n \nRJ II, INC. EMPLOYER                    RESPONDENT  \n \nSAGAMORE INS./PROTECTIVE INS., CARRIER/TPA                    RESPONDENT \n \n \nOPINION FILED 16 NOVEMBER 2023 \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on 15 November 2023. \n \nClaimant, Woodrow Jackson, Jr., pro se, did not appear. \n \nMs.  Karen  H.  McKinney,  Attorney-at-Law  for  the  Barber  Law Firm,  appeared  on \nbehalf of the respondents. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above-styled matter on 15 November 2023, in Little Rock, \nArkansas, on the respondents’ Renewed Motion to Dismiss for failure to prosecute pursuant \nto  Arkansas  Code  Annotated §  11-9-702  and/or Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claim involves an alleged workplace injury occurring on 20 March \n2021.  The respondents initially moved to dismiss this action for failure to prosecute by way \nof a Motion filed 12 June 2023.  After the claimant requested a hearing on the matter, that \nMotion was held in abeyance, by way of a letter to the parties dated 29 June 2023, pending \nprogress towards a hearing on the matter. \n A prehearing telephone conference was scheduled, but canceled upon a request for the \nsame from the claimant’s counsel, who subsequently moved to withdraw her representation \nby way of a letter to the Clerk of the Commission dated 24 August 2023.  The Full Commission \ngranted  the  withdrawal  as  counsel  in  a  6  September  2023  Order.  Then,  on  11  September \n\nW. JACKSON- H103552 \n2 \n \n2023,  the  respondents  renewed  their  Motion  for  a  Dismissal  Without  Prejudice.    Notice  of \nthat Motion and then for a hearing on the Motion was sent accordingly. \n The claimant did not respond to the respondents’ Motion or the Commission’s letter \nto lodge an objection to the dismissal, and he did not appear before the Commission for the \nscheduled hearing on the respondents’ Motion. \n Based on the record, argument by counsel, and evidence before me, I am compelled to \nfind that the Motion to Dismiss should be granted due to the claimant’s lack of prosecution \nand the matter should be dismissed without prejudice.  \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice at this time.   \nSO ORDERED. \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2619,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H103552 WOODROW JACKSON, JR., EMPLOYEE CLAIMANT RJ II, INC. EMPLOYER RESPONDENT SAGAMORE INS./PROTECTIVE INS., CARRIER/TPA RESPONDENT OPINION FILED 16 NOVEMBER 2023 Hearing before Administrative Law Judge JayO. Howe in Little Rock, Pulaski County, Arkansas,...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:31.819Z"},{"id":"alj-H205357-2023-11-16","awccNumber":"H205357","decisionDate":"2023-11-16","decisionYear":2023,"opinionType":"alj","claimantName":"H Nicholas-Madden","employerName":"Lennox Industries, Inc","title":"NICHOLAS-MADDEN VS. LENNOX INDUSTRIES, INC AWCC# H205357 NOVEMBER 16, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/NICHOLAS-MADDEN_H2205357_20231116.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NICHOLAS-MADDEN_H2205357_20231116.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H205357 \n \nMELANIE P. NICHOLAS-MADDEN, EMPLOYEE        CLAIMANT \n \nLENNOX INDUSTRIES, INC., EMPLOYER                  RESPONDENT  \n \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nCORVEL HEALTHCARE CORP., CARRIER/TPA                         RESPONDENT \n \n \nOPINION FILED 16 NOVEMBER 2023 \n \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on 15 November 2023. \n \nClaimant, Melanie Nicholas-Madden, pro se, failed to appear. \n \nMr. Eric Newkirk, Attorney-at-Law of Little Rock, Arkansas, appeared on behalf of \nthe respondents. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above-styled matter on 15 November 2023, in Little Rock, \nArkansas,  on the  respondents’ Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas  Code  Annotated § 11-9-702  and/or Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The Commission’s file was incorporated by reference at the beginning of \nthe hearing.  \nThe claim involves an alleged workplace injury occurring on  12 July 2022.  A Form \nAR-C was filed by the claimant on 27 July 2022, claiming that she was exposed to a large \namount  of  insulation  and  fiber  glass  particles  and  experienced  sinus  issues,  respiratory \ncomplications, and nausea as a result. The respondents filed a Form AR-2 on 4 October 2022, \nstating that the claim was not compensable.  Another Form AR-2 appears in the file dated 19 \nOctober 2022 stating the same. \n\nNICHOLAS-MADDEN—H205357 \n2 \n \n The file was assigned to the Legal Advisor Division for an attempt at mediation. After \nsome  correspondence  a  mediation  date  was  set  and  the  parties  attempted  to  mediate  a \nresolution  on  20  December  2022.    An  Agreement  form  dated  that  same  day  indicates  that \nafter meeting at the Arkansas County Courthouse, a resolution was not reached on the merits \nof the claim. A Form AR-R, Report of Mediation, dated 21 December 2022 notes the same.  A \nmemorandum  from  the  Legal  Advisor  Division  indicates  that  the  file  was  returned  to  the \nClerk’s office on 21 December 2022.   The file evidences no further action until the filing of \nthe respondents’ 14 August 2023, file-marked Motion for a Dismissal Without Prejudice.  \n The claimant did not respond to the respondents’ Motion or the Commission’s letters \nproviding  notice  of  the  Motion  and  notice  of  the  hearing.  She  did  not  appear  before  the \nCommission  for  the  scheduled hearing  on  the  respondents’ Motion  to  argue  against  the \nrequested dismissal without prejudice. \n Indeed, no evidence of a request for a hearing on a justiciable issue appears in the file \nin the time relevant to the respondents’ Motion.  Based on the record, argument by counsel, \nand evidence before me, I am compelled to find that the Motion to Dismiss should be granted \ndue  to  the  claimant’s  lack  of  prosecution and  the  matter  should  be  dismissed  without \nprejudice.  \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice at this time.   \nSO ORDERED. \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3326,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205357 MELANIE P. NICHOLAS-MADDEN, EMPLOYEE CLAIMANT LENNOX INDUSTRIES, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ CORVEL HEALTHCARE CORP., CARRIER/TPA RESPONDENT OPINION FILED 16 NOVEMBER 2023 Hearing before Administrative Law Judge Ja...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:33.958Z"},{"id":"alj-G907485-2023-11-15","awccNumber":"G907485","decisionDate":"2023-11-15","decisionYear":2023,"opinionType":"alj","claimantName":"Kenneth Evans","employerName":"Forest Heights Stem Academy","title":"EVANS VS. FOREST HEIGHTS STEM ACADEMY AWCC# G907485 NOVEMBER 15, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/EVANS_KENNETH_G907485_20231115.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EVANS_KENNETH_G907485_20231115.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G907485 \n \nKENNETH EVANS, EMPLOYEE       CLAIMANT \n \nFOREST HEIGHTS STEM ACADEMY, EMPLOYER        RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION,            \nCARRIER/TPA                   RESPONDENT \n \n \nOPINION FILED 15 NOVEMBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe, 15 November 2023, Little Rock, Pulaski County, Arkansas. \n \nThe pro se claimant failed to appear. \n \nMs. Melissa Wood, Attorney-at-Law of Little Rock, Arkansas,  appeared for the respondents. \n \nSTATEMENT OF THE CASE \n \n A hearing on the respondents’ Motion to Dismiss was held on this matter in Little \nRock, Arkansas, on 15 November 2023. This case relates to a workplace injury from 9 October \n2019.  Multiple Form AR-Cs have been filed with the Commission over the years, as reflected \nin the Commission’s file and the respondents’ documents supplied in support of their motion. \nSee Commission’s Exhibit No 1.  On 8 February 2023,  a hearing was conducted and an opinion \nwas issued on 7 August 2023 dispensing with several issues. \n The Full Commission entered an Order relieving the claimant’s counsel of record on 6 \nSeptember 2023. On 12 September 2023, the respondents filed the immediate Motion to \nDismiss for the claimant’s failure to prosecute any remaining claims associated with his \nworkplace injury. As argued in the respondents’ motion, the file reflects no request for a \nhearing  on a claim  in  the  relevant  time  preceding  the  filing  of  that  motion. Notice  of  that \nMotion  and  notice  of the  hearing  on  that Motion were sent  to  the  address  provided  by  the \n\nK. EVANS- G907485  \n2 \n \nclaimant, but the Commission received no response. The claimant failed to appear to resist \nthe Motion  to Dismiss  any  claims  remaining  in  this  matter.  The  respondents  appeared, \npresented their Motion, and offered supporting evidence into the record. \n Our  Rule 099.13  provides  for  a  dismissal  for  failure  to  prosecute  an  action  upon \napplication by either party. Based on the record, available evidence, and the arguments of \nthe respondents’ counsel, I find that the respondents’ Motion to Dismiss should be granted \nand that the matter should be dismissed without prejudice. \nII.  ORDER \n The Motion to Dismiss is GRANTED, and this matter is DISMISSED WITHOUT \nPREJUDICE. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2535,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G907485 KENNETH EVANS, EMPLOYEE CLAIMANT FOREST HEIGHTS STEM ACADEMY, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER/TPA RESPONDENT OPINION FILED 15 NOVEMBER 2023 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrati...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:29.674Z"},{"id":"alj-H108607-2023-11-14","awccNumber":"H108607","decisionDate":"2023-11-14","decisionYear":2023,"opinionType":"alj","claimantName":"Jason Blake","employerName":"Hot Springs Village Property Homeowners Association","title":"BLAKE VS. HOT SPRINGS VILLAGE PROPERTY HOMEOWNERS ASSOCIATION AWCC# H108607 NOVEMBER 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BLAKE_JASON_H108607_20231114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BLAKE_JASON_H108607_20231114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.: H108607 \n \nJASON A. BLAKE, EMPLOYEE                                                                            CLAIMANT \n \nHOT SPRINGS VILLAGE PROPERTY HOMEOWNERS \nASSOCIATION, EMPLOYER                                                                           RESPONDENT                \n \nCENTRAL ADJUSTMENT COMPANY, INC., \nTHIRD PARTY ADMINISTRATOR/TPA                                                       RESPONDENT                                                                      \n \nOPINION FILED NOVEMBER 14, 2023 \n  \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  CHANDRA  L.  BLACK  in  Hot  Springs, \nGarland County, Arkansas. \n \nThe Claimant, pro se, appeared at the hearing. \n \nRespondents  represented  by  the  Honorable  Michael  E.  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nStatement of the Case \nOn  August  25,  2023,  the  above-captioned  claim  came  on  for  a  hearing  in  Hot  Springs, \nArkansas.  A pre-hearing telephone conference was conducted on July 12, 2023, from which a pre-\nhearing order was filed that same day.  A copy of that order and the parties’ responsive filings have \nbeen marked as Commission’s Exhibit 1 and made a part of the record without objection. \nStipulations \nDuring the pre-hearing telephone conference, and/or at the hearing, the parties agreed to \nthe following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within  \n \nclaim. \n \n\nBlake – H108607 \n2 \n \n2. That the employee-employer-insurance carrier relationship existed at all relevant times, \nincluding on or about October 12, 2021. \n3. The Claimant’s average weekly wage on October 12 was $882.00, which entitles him \nto weekly compensation rates of $588.00 and $441.00. \n4. At the beginning of the hearing, the parties agreed to stipulate that the Respondents are \nentitled  to  receive  a  credit/offset  for  any  indemnity  benefits  awarded  herein  for  the \nweeks during which the Claimant received unemployment benefits.  \n5. All issues not litigated here are reserved under the Arkansas Workers’ Compensation \nAct. \nIssues \nBy agreement of the parties, the issues litigated at the hearing were as follows: \n1.   Whether the Claimant sustained a compensable low back injury on October 12. \n2. Whether the Claimant is entitled to reasonable and necessary medical treatment, to  \ninclude additional steroid injections.  \n3. Whether the Claimant is entitled to temporary total disability benefits from October  \n \n13, 2021 through to a date yet to be decided. \n4. Whether the Respondents wrongfully terminated the Claimant.  \n   \nContentions \nThe respective contentions of the parties are as follows: \nClaimant:  \n The Claimant contends that he sustained a compensable low back injury while working for  \n\nBlake – H108607 \n3 \n \nthe respondent-employer on October 12, 2021.   He also contends that he is entitled to reasonable  \nand necessary medical treatment for his alleged low back injury, and temporary total disability   \ncompensation from October 14, 2021, to a date yet to be decided.  The Claimant has also alleged  \nthat the respondent-employer wrongfully terminated his employment.       \nRespondents:  \nRespondents  contend  that  Claimant  did  not  suffer a  compensable  low  back  injury  on \nOctober 21, 2021.  He has no new objective medical findings of a low back injury.  The Claimant   \nhad a pre-existing cervical fusion and no new findings of a cervical injury.  Dr. Wayne Bruffett \nstated, “There is no evidence of objective injury related to the work injury of October 12, 2021.” \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear  the  testimony  of  the  witnesses  and  observe  their  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.  The Arkansas Workers’ Compensation Commission has authority over this claim.    \n          \n      2.   I hereby accept the above-mentioned proposed stipulations as fact. \n3.  The Claimant has failed to prove by a preponderance of the evidence that he sustained a   \ncompensable injury to his back on October 12, 2021.  Specifically, there are no objective \nmedical findings of record establishing an injury to the Claimant’s back.  \n      4.  The remaining issues of temporary total disability compensation and additional medical  \nbenefits have been rendered moot by the above findings.  Accordingly, these issues have \nnot been addressed in this Opinion. \n\nBlake – H108607 \n4 \n \n5.  The Claimant failed to offer any evidence to support a finding that the respondent-employer  \n     terminated his employment due to any cognizable remedy that falls under the Arkansas  \n          Workers’ Compensation Act.  \nSummary of Evidence \nAt the hearing, the Claimant and his former supervisor, Mr. Wesley Carpenter, were the \nonly two witnesses.  \n            The record consists of the August 25, 2023 hearing transcript, comprising of the following \nexhibits, in addition to Commission’s Exhibit 1: Claimant’s Exhibit 1 included a Medical Exhibit;  \nClaimant’s Exhibit 2 is a Non-Medical Exhibit consisting of one page; and Respondents’ Exhibit \n1  includes  a  cover  sheet and  Respondents’  Medical  Exhibit  consisting  of  seven  (7)  numbered \npages.  Additionally, the Claimant’s deposition taken on May 25, 2022,  was made a part of the \nrecord by the Respondents.  It has been marked as Respondents’ Exhibit 2. \n                                                         Testimony \nJason Blake \n The Claimant has a high school diploma.  According to the Claimant, approximately ten \nyears later he attended vocational school and became a master electrician.  On April 4, 2018, the \nClaimant  began  working  for  the  respondent-employer,  Hot  Springs  Village  Property  Owners \nAssociation.  The Claimant has alleged that he sustained an injury to his low back on October 12, \n2021.  At that time, the Claimant worked as an electrician for the respondent-employer.  \n He described his job duties as follows: “I serviced grinders and sewer tanks, which have a \nsewage  pump  in  them.    Every  house  in  the  Village  just  about  has  one,  and  maintenance  on  the \npanels on the sides of the houses... Plus we did construction and everything else.  We were a do-\nit- all team.” \n\nBlake – H108607 \n5 \n \n The  Claimant  testified  that  he  injured  his  back  on  October  12,  2021.    Per  the  Claimant, \nthere was one witness to his accidental fall, a coworker, Seth Davis.  He refused to say why Mr. \nDavis did not appear for his hearing.  The Claimant replied, “I don’t’ want to talk about it.  I don’t \nwant to get nobody in trouble.” According to the Claimant, on the afternoon of October 12, he was \n“called out” to a house after hours for repair work to a sewer tank.  He was wearing cowboy boots, \nand they were slippery.  As the Claimant walked around the house to the sewer tank, he could see \nit was full and had water coming out of it.  The Claimant slipped and fell and landed on top of the \nsewer tank.  According to the Claimant, he sat there for five or six minutes, and then he got up and \nfinished the job.   \n Shortly thereafter, the Claimant reported his injury to Jason Temple, and Wesley Carpenter, \nwho  was  his  supervisor.    The  Claimant  was  taken  to  a  local  clinic,  at  CHI  in  Hot  Springs.  \nAccording to the Claimant, they took a statement and gave him a drug test.  The Claimant testified \nthat he was in a lot of pain, so they gave him a pain shot.  The Claimant described his pain as being \na “real stabbing, sharp pain in the middle of his back,” which caused him not to be able to bend \nover or do anything at that time.  The Claimant went on to explain he was able to finish the job \nbecause the only thing Seth Davis had to do was open the door and flip the switch to the power for \nthe sewer tank to work.    \n The next day, on October 13, the Claimant went to the doctor.  The Claimant testified that \nthey scheduled him for a lumbar MRI, and after that he saw Dr. Wayne Bruffett.  According to the \nClaimant, Dr. Bruffett compared the MRI against the x-rays he took at his office.  The Claimant \nspecifically  testified  that  he  disliked  the  care  he  received  from  Dr.  Bruffett.    As  a  result,  he \ncontacted the insurance carrier to request another doctor.  They referred him to Dr. Reza Shahim \nat the Arkansas Surgical Medical Center.  The Claimant testified that he underwent a “three-facet \n\nBlake – H108607 \n6 \n \ninjection”  on  his  back  while  under  the  care  of  Dr.  Shahim.    Per  the  Claimant,  they  went  from \ntreating his back to treating his neck.  He testified he was given verbal orders directing him off \nwork.  The Claimant could not remember if any doctor took him off due to his alleged back injury.  \nHe confirmed he has not returned to work since October 2021, except for the light-duty work he \nperformed for the respondent-employer.  \n Next,  the  Claimant  testified  that  he  worked  on  light  duty  after  being  placed  on  these \nrestrictions by Dr. Mark Larey and Dr. Reza Shahim.  The Respondents’ attorney confirmed that \nthe Claimant got a change of physician before the Respondents controverted the claim. \n According to the Claimant, during his last visit with Dr. Shahim, he was accompanied by \na representative with the insurance carrier.   Specifically, the Claimant testified: \nQ What did he do at that last visit? \nA The work workman’s comp people, I think, her name was Kathy, she was there, \nand he said does your back feel better, and I was like, yes, sir.  He goes well, then you don’t \nneed surgery, yet, but your neck......  And then he started explaining about my neck. \n \nThe Claimant verified that he received some payments for temporary total disability from  \nthe day of injury until November 17.  Although the Claimant has not received any more treatment \nfrom Dr. Shahim, he has received treatment from Dr. John Pace.  According to the Claimant, Dr. \nPace has performed steroid shots on his back about six or seven times.   The Claimant testified that \nDr. Pace has also prescribed medications for his back. \n He confirmed that the Respondents last paid for  his  medical treatment when he saw Dr. \nShahim for a one-time change of physician.  The Claimant verified that he is asking for the medical \ntreatment of record, which he received after his visit with Dr. Shahim.  He is also seeking additional \ntreatment from Dr. Pace, in the form of steroid injections for his back.   \n\nBlake – H108607 \n7 \n \n Regarding medical treatment and injuries to his back prior to October 2021, the Claimant \nadmitted that he had “some messed-up vertebrae.”  He testified that he told every doctor he had \nsome  pre-existing  conditions.    The  Claimant  maintained  that  he  fell “many  times”  at  work  and \nvarious other places.  Per the Claimant, Dr. Bill James performed an injection in his lower back.  \nThe Claimant confirmed that he received unemployment benefits.  According to the Claimant, he \nstopped these benefits because he was going to have neck surgery. \n The Claimant testified that his symptoms from the October 12, 2021, work incident include \nnumbness in his pinkie toe and ankles, and hips  hurt.  According to the Claimant, his knees are \nnow  starting  to  hurt.    He  walks  with  a  cane  that  his  given  to  him  by  his  father.    The  Claimant \nconfirmed that prior to his October 2021 incident, he had back pain for which he was under pain \nmanagement.  However, Claimant’s pain doctor moved to  Georgia, and he has not seen anyone \nother than Dr. Pace for his back condition.  He admitted that he received one treatment in the form \nof  an  injection  from  Dr.  Pace  prior  to  October  2021.    The  Claimant  confirmed  that  prior  to  his \nwork incident, he was prescribed pain pills for his back while under the care of Dr. Matt Huskey.  \n However, the Claimant maintained that all his prior back problems were at L6-L7; yet he \nstated that now his problems are at L4-L5.  The Claimant admitted that he previously underwent \nan  MRI  of  his  back.    He  also  admitted  that  he  was  in  a  car  wreck  four  years  prior  to  his  work \nincident,  for  which  he  received  a  settlement  of  $4,000.00  to  replace  his  vehicle.    The  Claimant \ndenied that he sustained any physical injuries during that accident.  According to the Claimant, he \ngot rear-ended in Hot Springs Village as a result of a minor car accident.  He was driving a 1996 \nMercury Mountaineer.  The Claimant also had another previous accident involving a four-wheeler \nin 2007 during Memorial Day weekend.  He further explained that he was riding as a passenger \n\nBlake – H108607 \n8 \n \nwhen they hit a tree.  He confirmed that he sustained a laceration down his right leg.  The Claimant \ndenied being thrown from the ATV.   \n The  Claimant  maintained  he  was  wrongfully  terminated  because  after  he  went  back  to \nwork.    At  that  time,  he  was  told  that  they  did  not  have  any  full-time  light  duty  work  available.  \nAccording to the Claimant, management told him he needed to get the paperwork changed by Dr. \nShahim so he could get on FMLA, but he refused to sign it.  The Claimant denied that he could \nperform  his  regular  duties  as  an  electrician  because  he  is  not  able  to  climb  a  ladder  or  carry \nanything over twenty pounds.  \n On   cross-examination,   the   Claimant   admitted   he   had   several   pre-existing   medical \nconditions before October 12, 2021.  He confirmed that he has undergone a cervical fusion.    The \nClaimant had his first neck fusion in 2007.  He maintained he does not know what caused him to \nhave a cervical fusion.  At the time of his surgery, the Claimant had group health insurance and \nused it to pay for his surgery.   \n The Claimant also admitted that he had low back problems before October 2021 that were \nsevere enough to cause him to undergo an MRI.   He verified that during his deposition, he testified \nthat  he  had  a “bad  disc”  in  his  back.    However,  the  Claimant  denied  that  anyone  suggested  he \nundergo back surgery at that time.  Instead, the Claimant testified that he has been on Hydrocodone \nfor years.  The Claimant’s pain management care before October 12 was under Dr. Petrov, but he \nmoved to Georgia.  He admitted that after Dr. Petrov left town, he tried to continue to treat at the \nPain Clinic Centers of America, but they discharged him from medical care because he failed a \ndrug test.  \n    He admitted that he had an MRI of his neck six days prior to October 12, 2021, because \nhis neck was swollen.  The Claimant maintained that he pinched his neck at a job site, but he did \n\nBlake – H108607 \n9 \n \nnot report it.  According to the Claimant, the MRI showed that some of the ligaments connecting \nto his shoulder had detached.  He confirmed that the fusion surgery for his neck fixed everything.   \n The Claimant confirmed that after the  October 12, 2021, incident, he had an MRI  about \nnine days later.  He agreed that the MRI showed that at L4-L5, there was moderate canal stenosis \nand  disc  desiccation,  along  with  multi-level  degenerative  facet  arthropathy.    In  that  regard,  the \nClaimant attempted to explain: \nA Where is the disc that you had back in 2019? \nQ I don’t know. \nA It’s not on here.  Why didn’t it show up on this MRI? \nQ I don’t know. \nHe admitted that Dr. Bruffett released him from care of his low back injury on November  \n17, 2021.  The Claimant confirmed that initially Dr. Shahim treated his back, but then he started \ntreating  his  neck  instead.    He  admitted  that  Dr.  Huskey  referred  him  to  Dr.  Pace,  who  is  a \nneurosurgeon.  The Claimant testified that he underwent neck surgery by Dr. Pace on November \n4, 2022.  He gave conflicting and confusing testimony about having been released from his neck \nsurgery.  (T 42)  However, the Claimant admitted that his neck surgery entailed additional fusion \nat  another  level  and  was  not  a  re-do  of  the earlier  fusion.    The  Claimant  admitted  that  his  neck \nsurgery keeps him from doing his career work.   \n Under  further  questioning,  the  Claimant  testified  that  he  returned  to  work  for  the \nrespondent-employer on light duty and worked until May 23 or 28, 2022.  He admitted that he told \nthe workers at the unemployment office,  “he was ready, willing, and able to work” when he signed \nup for benefits.  The Claimant confirmed that during his deposition, which was taken on May 25, \n2022, he testified he was looking for work at an electrical supply store.  \n\nBlake – H108607 \n10 \n \n According to the Claimant, he was told to wait until after his neck outcome before he did \nanything with his back condition.  He maintained that surgery has now been recommended for his \nback.  However, the Claimant admitted that he testified during his deposition that surgery had not \nbeen recommended for his back; but now he does need back surgery because a new MRI shows \nthat his condition has gotten worse since the October 22, 2021, MRI.   \nOn redirect examination, The Claimant confirmed that he had another MRI in January of \n2023 and Dr. Pace has recommended surgery on his back, but he is afraid to have it done.  Instead, \nthe Claimant testified that he wants to have “electroshock nerve therapy” for his back condition. \nWesley Carpenter \n Mr. Carpenter testified that he was the Claimant’s immediate supervisor on October 12, \n2021.  However, he confirmed that he has retired from the company as of a year ago in June.  Mr. \nCarpenter verified that the Claimant reported his October 2021 injury to him.   \n Specifically,  Mr.  Carpenter  provided the following explanation of the Claimant’s work-\nrelated fall: \n A Him and another guy was going down there...... James Wallace was going on a  \nsewer tank call at a residence for the Village, and it was a steep incline, and it had been raining, \nand as they were going down, he slipped and he fell and he landed on the lid of the tank, and when \nthey finished with their call, he came back and reported it to me, and we filled out the paperwork \non it then. \n  Mr. Carpenter confirmed the Claimant’s testimony that he took the Claimant to the after-\nhours clinic.  He verified that the Claimant was in pain.  Mr.  Carpenter confirmed that the Claimant \ncame to work after his injury and worked light duty.  However, he testified that the Claimant was \nin pain.        \n\nBlake – H108607 \n11 \n \n                                                       Adjudication \nThe primary issue in the case at bar involves an alleged injury to the Claimant’s back.   \nSpecifically, the Claimant contends that he sustained a compensable injury to his lower back on \nthe  evening  of  October  12,  2021,  when  he  slipped  and  fell  while  working  for  the  respondent-\nemployer.  \nIn  order  to  prove  the  occurrence  of  an  injury  caused  by  a  specific  incident  or  incidents \nidentifiable by time and place of occurrence, the Claimant must show by a preponderance of the \nevidence that: (1) an injury occurred that arose out of and in the course of his employment; (2) the \ninjury caused internal or external harm to the body that required medical services or resulted in \ndisability  or  death;  (3)  the  injury  is  established  by  medical  evidence  supported  by  objective \nfindings, which are those findings which cannot come under the voluntary control of the patient; \nand  (4)  the  injury  was  caused  by  a  specific  incident  and  is  identifiable  by  time  and  place  of \noccurrence.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  \nThe Claimant’s burden of proof shall be a preponderance of the evidence.  Ark. Code Ann. §11-\n9-102 (4) (E) (i).  This standard means the evidence  having greater weight or convincing force.  \nMetropolitan Nat ’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003), citing \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).  If the Claimant does \nnot  prove  by  a  preponderance  of  the  evidence  any  of  the  above  requirements  for  proving \ncompensability, compensation must be denied.   \nThe  Respondents  initially  accepted  this  claim  and  paid  medical  and  indemnity  benefits \nthrough  November  15,  2021,  the  day  of  the  Claimant’s  independent  medical  evaluation  by \nBruffett.  However, they have now controverted the claim in its entirety.   \n\nBlake – H108607 \n12 \n \n Here,  it  is  undisputed  that  the  Claimant  incurred  a  work-related  fall  on  the  evening  of \nOctober  12,  2021,  when  he  accidentally  slipped  and  fell  in  the  driveway  area  of  a  homeowner \nwhile working for the respondent-employer.  The Claimant promptly reported the incident to his \nsupervisor,  Mr.  Carpenter.    They  completed  the  proper  paperwork  for  the  incident  and  Mr. \nCarpenter transported the Claimant to a nearby walk-in clinic due to complaints of back and neck \npain. Although this report was not made  a part of the record, the Claimant testified that he was \ngiven a shot for pain and discharged home. \nYet, the first medical report of record following the Claimant’s October 12, 2021, work-\nrelated  fall  is  an  MRI  of  his  lumbar  spine,  which  was  performed  on  October  22.    Dr.  Devon \nHolder’s impression was: “At L-4-5, there is moderate canal stenosis.  Disc desiccation noted at \nL4-5 and L5-S1.  Multilevel degenerative facet arthropathy.” \n The next medical report of record after the Claimant’s alleged low back injury was authored \nby  Dr.  Wayne  Bruffett  on  November  15,  2021.    At  that  point,  the  Claimant  underwent  an \nindependent medical evaluation by Dr. Bruffett.  Specifically, the Claimant presented to discuss \nconcerns about his low back pain, mid back pain, and neck pain that began on October 12, 2021.  \nThe Claimant reported to Dr. Bruffett a medical history of prior chronic neck and low back pain.    \nHowever, the Claimant’s neck condition is not a part of this claim.      \nNevertheless,  Dr.  Bruffett  stated  that  x-rays  of  the  Claimant’s  lumbar  spine  showed \nevidence of “multilevel disc degeneration.”  The Claimant reported to Dr. Bruffett that as part of \nhis work-up for his work injury, he underwent an MRI of his  back on October 22.  Dr. Bruffett \nreviewed the MRI of his lumbar spine.     \nIn this regard, Dr. Bruffett opined that the October lumbar MRI also showed “multilevel \ndisc degeneration disc bulging, but no significant disc herniation.”  Dr. Bruffett explicitly opined \n\nBlake – H108607 \n13 \n \nthat the MRI of the Claimant’s lumbar spine showed no evidence of an objective injury related to \nhis work-related injury of October 12, 2021.  Dr. Bruffett opined that 100% of the pathology that \nis  noted  there  would  be  considered  pre-existing.    There  are  no  expert  opinions  or  probative \nevidence  to  the  contrary;  and  this  expert  opinion  is  consistent  with Dr. Holder’s  review  of  the \nlumbar  MRI,  wherein  he  cited  an  impression  of  only  degenerative  changes.    Per  these  medical \nnotes, Dr. Bruffett told the Claimant that any further medical treatment for his back would be for \nhis pre-existing condition and unrelated to his work injury.   Hence, Dr. Bruffett pronounced the \nClaimant  to  be  at  maximum  medical  improvement  for  his  work-related  injury  and  released  him \nfrom  care  for  his  back  condition.   Dr.  Bruffett’s clinical  notes  do  not  reflect  or  cite  any  other \nobjective  medical  findings  establishing  an  injury to  the  Claimant’s  back,  such  as a  spasm, \ncontusion, abrasions, or swelling.           \nDuring the hearing, the Claimant credibly testified to having had  prior chronic problems \nwith his back.  He also reported a prior history of pre-existing back-related issues to Dr. Bruffett.  \nThe Claimant readily admitted that at the time of his work-related fall, he was taking Hydrocodone \nfor back pain.    The Claimant also testified that he had been previously told by medical providers \nthat he had a “bad disc,” in his back, but he maintained that it was at a different level.  However, I \ndid not find the Claimant’s testimony to be credible in this regard because his  testimony  is  not \ncorroborated  by  the  medical  evidence  of  record,  namely  the  MRI.    Moreover,  although  the \nClaimant  has  offered  testimony  of  complaints  of  back  pain,  it  is  well-established  in  workers’ \ncompensation law that complaints of pain are not recognized as an objective medical finding.  \n Quite notably, the Claimant did not present any medical records from his initial clinic visit \nor  any   contemporaneous  medical  records   establishing  an  objective   medical  finding  of a \ncompensable back injury to his low back.  Thus, I recognize that it is well-established in Arkansas \n\nBlake – H108607 \n14 \n \nworkers’  compensation  law  that pre-existing  conditions  may  be  compensable  if  they  are \naggravated by a work-related injury.  However, I do not find such circumstances to exist in this \ncase.  \n Therefore, based on all the foregoing, I have attached significant weight to Dr. Bruffett’s \nexpert opinion.  Specifically, I am unable to find any objective medical evidence establishing an \ninjury to the Claimant’s back because  of  his  work-related  fall  of  October  12,  2021.    Absent  an \nobjective medical finding establishing an injury, the Claimant cannot meet his burden of proving \nby  a  preponderance  of  the  evidence  that  he  suffered  a  compensable  back  injury  on  October  12.   \nBecause there is not an objective medical finding proving a compensable injury to the Claimant’s \nlumbar spine, his claim for a work-related injury to his back must be denied. \n It is noteworthy to point out that the other medical records submitted are too remote in time \nto be causally connected to the Claimant’s work-related fall of October 12, 2021. \n Consequently,  the  remaining  issues  of  temporary  total  disability  and  reasonable  and \nnecessary medical treatment have been rendered moot and not discussed in this opinion.  \n Additionally, the Claimant has alleged that the Respondents wrongfully discharged him.  \nHowever,  the  Claimant  failed  to  provide  any  proof  that  the  respondent-employer  wrongfully \nterminated  his  employment  due  to  any  cognizable  remedy  under  the  Arkansas  Workers’ \nCompensation Act.  \n                                                 ORDER \nThe  Claimant  did  not  prove  by  a  preponderance  of  credible  evidence  that  he  sustained  a \ncompensable  back  injury  on  October  12,  2021,  in  the  course  of  his  employment  with  the \nrespondent-employer.    Therefore,  this  claim  for  a  back  injury  is  hereby  respectfully  denied  and \ndismissed  in  its  entirety.    The  remaining  issues  of  temporary  total  disability  compensation  and \n\nBlake – H108607 \n15 \n \nadditional reasonable and necessary medical treatment have been rendered moot and not discussed \nherein.    There  is  insufficient  evidence  to  support  a  finding  that  the  respondent-employer \nwrongfully terminated the Claimant’s employment due to any cognizable remedy under the Act.  \nIT IS SO ORDERED.       \n                    \n                                        \n__________________________                                                            \n                           CHANDRA L. BLACK \n                       Administrative Law Judge","textLength":27952,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H108607 JASON A. BLAKE, EMPLOYEE CLAIMANT HOT SPRINGS VILLAGE PROPERTY HOMEOWNERS ASSOCIATION, EMPLOYER RESPONDENT CENTRAL ADJUSTMENT COMPANY, INC., THIRD PARTY ADMINISTRATOR/TPA RESPONDENT OPINION FILED NOVEMBER 14, 2023 Hearing before ADMINISTRATIVE LAW ...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["back","cervical","lumbar","neck","shoulder"],"fetchedAt":"2026-05-19T23:00:23.328Z"},{"id":"alj-G506822-2023-11-14","awccNumber":"G506822","decisionDate":"2023-11-14","decisionYear":2023,"opinionType":"alj","claimantName":"Sayel Mohammed","employerName":null,"title":"MOHAMMED VS. MAVERICK TRANSPORTATIONAWCC# G506822 NOVEMBER 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MOHAMMED_SAYEL_G506822_20231114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOHAMMED_SAYEL_G506822_20231114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G506822 \nSAYEL MOHAMMED (DECEASED), EMPLOYEE    CLAIMANT \nv. \nMAVERICK TRANSPORTATION, LLC, EMPLOYER     RESPONDENT #1 \nCORVEL ENTERPRISES COMPANY, INC., \nINSURANCE CARRIER/TPA      RESPONDENT #1 \n \nDEATH AND PERMANENT DISABILITY \nTRUST FUND        RESPONDENT #2 \n       \nOPINION FILED NOVEMBER 14, 2023 \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy,  on  the 26\nTH\n  day  of \nSeptember, 2023, in Little Rock, Pulaski County, Arkansas. \nClaimant is represented by Mr. Gary Davis, Attorney-at-Law, Little Rock, Arkansas. \nRespondent  #1  is  represented  by  Mr.  David C.  Jones,  Attorney-at-Law,  Little  Rock, \nArkansas. \nRespondent  #  2  is  represented  by  Mr.  David L.  Pake,  Attorney-at-Law,  Little  Rock, \nArkansas. \nSTATEMENT OF THE CASE \nA hearing was conducted on the 26\nth\n day of September, 2023, to determine the \nissues of whether the parents of the decedent, Yaha I Mohammed and Yusra Yameen \nSalama,  are  entitled  to  partial  dependency  death  benefits  pursuant  to  Arkansas  Code \nAnnotated  §11-9-111  and  Arkansas  Code  Annotated  §11-9  527,  and  attorney  fees.  A \ncopy of the Prehearing Order was marked “Commission Exhibit 1” and made part of the \nrecord without objection.  The Order provided that the parties stipulated that the Arkansas \nWorkers’  Compensation  Commission  has  jurisdiction  of  the  within  claim  and  that  an \nemployer/employee  relationship  existed  on  or  about  September  9,  2015,  when  the \nclaimant sustained a compensable injury resulting in his death.  At the time of the injury, \nthe claimant’s average weekly wage was $1,100.13.  On September 9, 2015, the claimant \n\nMOHAMMED (Dec’d) – G506822 \n \n2 \n \nwas married to Krystle Martish.  On September 24, 2015, the carrier filed an Amended \nAR-4, accepting the compensability of the claim.  On March 28, 2017, Krystle Marsh filed \nan AR-C for widow’s benefits in Arkansas.  The respondent/carrier paid funeral expenses. \nOn  August  4,  2017,  Krystle  Martish  requested  a  voluntary  dismissal  of  her  claim.    On \nAugust 8, 2017, the parents of Sayel Mohammed filed an AR-C claiming rights to parental \nsurvivor  benefits  arising  out  of  the  death  of  their  son  on  September  9,  2015.    On \nNovember  13,  2017,  an  Order  of  Dismissal  on  the  claim  filed  by  Krystle  Martish  was \nentered.  There  was  no  objection  to  these  stipulations  with  the  exception  that  the \ndocument that was named an AR-4 in the Prehearing Order was actually an AR-2 and \nafter this correction, the Prehearing Order was admitted into the record.      \n The claimant’s, respondent’s, and the trust fund’s contentions were are all set out \nin  their  respective  responses  to  the  prehearing  questionnaire  and  made  a  part  of  the \nrecord without objection.  In addition, simultaneous briefs were requested thirty (30) days \nfrom the date of the hearing, with instructions that no brief was to be longer than ten (10) \npages.  The briefs have been blue-backed and attached to this Opinion.  The sole witness \nto testify at the time of the hearing was Yaha Mohammed.  From a review of the record \nas a whole, to include medical reports and other matters properly before the Commission \nand having had an opportunity to observe the testimony and demeanor of the witness, \nthe  following findings of  fact  and  conclusions  of  law are made  in accordance  with Ark. \nCode Ann. §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n\nMOHAMMED (Dec’d) – G506822 \n \n3 \n \n2.  That  an  employer/employee  relationship  existed  on  or  about  September  9, \n2015, when Sayel Mohammed sustained a compensable injury resulting in his \ndeath. \n \n3.  At the time of the injury, Sayel Mohammed earned an average weekly wage of \n$1,100.13. \n \n4.  On September 9, 2015, Sayel Mohammed was married to Krystle Martish. \n \n5.  On  September  24,  2015,  the  carrier  filed  an  Amended  AR-2,  accepting  the \ncompensability of the claim. \n \n6.  On  March  28,  2017,  Krystle  Martish  filed  an  AR-C  for  widow’s  benefits  in \nArkansas. \n \n7.  The respondent/carrier paid funeral expenses. \n \n8.  On August 4, 2017, Krystle Martish filed a request for voluntary dismissal of her \nclaim. \n \n9.  On August 8, 2017, the parents of Sayel Mohammed filed an AR-C, claiming \nrights  to  parental  survivor  benefits  arising  out  of  the  death  of  their  son on \nSeptember 9, 2015. \n \n10.  On  November  13,  2017,  an  Order  of  Dismissal  of  the  claim  filed  by  Krystle \nMartish was entered. \n \n11. That  the  parents  of  the  decedent,  Yaha  I  Mohammed  and  Yursa Yameen \nSalama, have failed to  satisfy the required burden of proof  to show that they \nare  entitled to partial dependency death benefits pursuant to Ark. Code Ann. \n§   11-9-111 and Ark. Code Ann. §11-9- 527. \n \n12. The question of attorney fees is moot. \n \n13. If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n The Prehearing Order along with the prehearing questionnaires of the parties were \nadmitted into the record without objection.  The claimant submitted one exhibit consisting \nof thirty-two (32) pages.  Respondents submitted multiple exhibits:  “Exhibit A” consisting \nof ten (10) pages of incoming transactions;  “Exhibit One” consisting of correspondence \n\nMOHAMMED (Dec’d) – G506822 \n \n4 \n \nand a prehearing questionnaire; and “Exhibit Two” consisting of the deceased marriage \nlicense  and  correspondence; “Respondent  Two’s  Exhibit  One”,  consisting  of  fifty  (50) \npages  of  forms  and  correspondence.    The  parties  also  submitted “Joint  Exhibit  One” \nwhich  consisted  of  the  Deposition  of  Yaha  Mohammed;  an  exhibit  called “Claimant’s \nExhibit One” that consisted of forty-one (41) pages of miscellaneous documentation; and \nan exhibit entitled “Respondents Exhibit A”.   \n Yahya Mohammed was the only witness to testify at the time of the hearing.  He \nwas born on January 10, 1954, and was married to Yahay Amin Mohammed Salama in \n1981, and their marriage produced four (4) girls and five (5) boys.  The deceased, their \noldest  son  Sayal,  was  killed  in an  accident  while  driving  for  Maverick  Transport  in \nSeptember  of  2015.    Upon  questioning,  Mr.  Mohammed  responded  that  they  were \ndependent on Sayel’s income and would receive money from him stating, “because we’re \none family.  He would help us and his siblings.”  “In Palestine and the Islamic World in \ngeneral, the father would take care of the kids and they would spend money on them and \nthey  would  help  them  get  married  and  settled,  but  when  he  gets  older  we  don’t  have \npensions and retirements like other places, it’s the kid’s responsibility to take care of their \nparents when they get older.”  He went on to state that he had worked all of his life taking \ncare of his family, “but now that I am much older, I can’t work anymore.”  “My wife never \nworked.”    “She  was  a  housewife.”    When  Sayel  was  working  for  the  respondent,  Mr. \nMohammed testified that he and his wife still had children at home. (Tr. 10-14) \n Under cross-examination by Respondent #1’s attorney, Mr. Mohammed admitted \nthat  he  was  indeed  working  while  Sayel  was  working  for  respondent  #1.    He  admitted \nworking  for  about two  (2)  years  after his  son’s  death but  stated  that this  work  was  not \n\nMOHAMMED (Dec’d) – G506822 \n \n5 \n \navailable every day.  He also admitted he was able to make his car payment and support \nhis family after Sayel’s death. He had used some of the money from Sayel to expand their \nhome from two (2) to four (4) rooms, hoping that Sayel would return and stay with them \nsome day.  He admitted that he had stated in his deposition that Sayel had wanted him \nto rest and that he would support him. (Tr. 16-18)   Mr. Mohammed also admitted receiving \nmoney from his brother, Hassan, or his brother, Ibraham, every once in a while.  (Tr. 20) \n Under cross-examination by Respondent #2’s attorney, Mr. Mohammed admitted \nhe had worked as a blacksmith even before his marriage and that was enough to help \nraise his children when he was young and capable of working hard.  “I had my workshop \nand it was enough to take care of the kids when they were young.”  He also admitted that \none of his children suffered from a hearing disability.  In regard to children at home, he \nstated that his daughters were married but he still had two (2) sons at home, Hanser and \nMohammed,  along  with  his  son,  Issac,  who  suffered  from  the  hearing  issue.    Hanser \nworks and Mr. Mohammed was attempting to get the other son a job.  He went on to say \nthat while he worked as a blacksmith, he also took care of his elderly parents. (Tr. 21-23)  \nHe also admitted that when Sayel left for the United States, he had a thousand dollars on \nhim and that he did not provide any additional money to him because he was able to live \nwith his uncles. (Tr. 25)  In regard to Sayel’s marriage to Krystle Martish on May 3, 2010, \nMr. Mohammed testified he was not aware of the marriage until Sayel’s death.  He also \nadmitted that at some point through his brother Ibraham, he became aware that Krystle \nMartish  and  his  brother  Ibraham  went  to  a  hearing  in  Kentucky  that  was  continued. \n(Tr. 26-27) \n\nMOHAMMED (Dec’d) – G506822 \n \n6 \n \n In  regard  to  the  pertinent  documentary  evidence  by  the  claimant, a  marriage \nlicense between Mr. Mohammed and his wife was made part of the record, along with the \nbirth certificate for the birth of Sayel in 1984.  In addition, Sayel granted a general power \nof attorney to his father. (Cl.Ex. 1, PP. 1, 4, 5, 6)  The death certificate for Sayel was also \nmade part of the record. (Cl.Ex. 1, P. 7)  In addition, documents were admitted into the \nrecord which appeared to show multiple significant wire transactions from sender, Sayel \nMohammed,  to  Yahya  Issacs  Younes  Mohammed  in  Palestine  from  2011 through  the \nmiddle of 2014. (Cl. Ex. 1, P. 20-32) \n Respondent #1 submitted  documents  into  the  record  without  objection  which \nconsisted of a Kentucky marriage license between Sayel Yahay Mohammed and Krystle \nAnne Martish dated May 3, 2010, as well as a letter from attorney Greg Giles requesting \na voluntary dismissal of Krystle Martish’s request for survival benefits involving the death \nof Sayel Mohammed, deceased.  The request provided she no longer wanted to pursue \nher claim but, “would prefer to see his parents receive any benefits that would be available \nas a result of Mr. Mohammed’s death.” (Resp. #1, Ex. 2) \n The transcript of  the workers’ compensation claim hearing in Kentucky involving \nIbrahim  Mohammed,  the  administrator  of  the  estate  of  Sayel  Mohammed  and  Krystle \nMartish, the widow of Sayel Mohammed, was also made part of the record and it provided \nthat Sayel’s parents lived on the West Bank of Palestine.  Ibrahim Mohammed admitted \nthat he would receive money from Sayel and send it to his brother, Sayel’s father.  The \nmoney  sent  list  provided  that  Sayel  had  sent  a  total  of  $50,700.00,  with  the  transfers \nstarting on October 28, 2000, and continuing until October 28, 2015.  Ibrahim Mohammed \nadmitted  that  he  would  sometimes  combine  the  money  from  Sayel  with  money he \n\nMOHAMMED (Dec’d) – G506822 \n \n7 \n \npersonally sent. (Resp. #2, Ex.1, PP. 10, 11, & 13)  The hearing in Kentucky was held \nbefore Judge Davis who stated, “that Mr. Ibrahim Mohammed’s first hand knowledge of \nthe situation is sufficient for me to find dependency by the relatives in Palestine.”  (Resp. \n#2, Ex. 1. PP. 16, 17)  Mr. Ibrahim Mohammed also testified that Sayel was living with \nhim in his home during September of 2015, and that Krystle only came by his house one \nnight.  He thought that Krystle and Sayel had been married for about six (6) years. (Resp. \n#2, Ex. 1, P. 26)  Krystle Martish also testified during the Kentucky hearing.  She stated \nthat she was married to Sayel but separated at the time of his death and that the two (2) \nof them had no children. (Resp. #1, Ex. 2, P. 37)  There was no formal notice of separation \nfiled with the Kentucky Court. (Resp. Ex. 2, P. 40) \n Krystle  Martish  filed  a  Form  AR-C  on  March  28,  2017,  and  then  filed  a  formal \nrequest for a voluntary dismissal of her application for benefits with the Arkansas Workers’ \nCompensation Commission, and an Order was entered granting the Order of Dismissal \nConcerning Krystle Martish on November 13, 2017. (Resp. #2, Ex. 1, PP. 46, 47, 49, 50)  \nIt is also noted that Ibrahin Mohammed filed a Form AR-C on August 8, 2017. (Resp. #2, \nEx. 1, P. 48) \n The  deposition  of  Yahya  Mohammed  was  also  admitted  as  a  joint  exhibit.    He \ntestified he was the father of Sayel and his brother Ibrahim Mohammed lived in the United \nStates. (Jt. Ex. 1. P. 7)  He admitted not having a bank account and that he would receive \nthe  money  that  he  was  sent  and  spend  it.    He  would  receive  the  money  from  various \nplaces  and  sometimes  when  Sayel  was  busy,  he  would  send  the  money  through  Mr. \nMohammed’s  brother  or  his  wife,  Sayel’s  wife,  and  sometimes even Mr.  Mohammed’s \nbrother’s son or daughter. (Jt. Ex. 1, PP. 10-12, 15, 17, 18)  Mr. Mohammed testified that \n\nMOHAMMED (Dec’d) – G506822 \n \n8 \n \nwhen he lost Sayel, he had to return to work. (Jt. Ex. 1, P. 22)  Sayel was his oldest son \nand there were two (2) older daughters. (Jt. Ex. 1, P. 38) \n Sayel’s Death Certificate provided that he died in Indiana on September 9, 2015, \nand his birth certificate provided that he was born on March 1, 1984. (Cl. Ex. 1).  \nDISCUSSION AND ADJUDICATION OF ISSUES \nThe facts in this matter are basically undisputed.  Sayel Mohammed, the deceased \nemployee, was born in Palestine and came to the United States where he was working \nfor the respondent when sadly, he lost his life.  The death was accepted as work-related \nby the respondents who paid for his funeral expenses.  At the time of his untimely demise, \nhe was married to Krystle Martish, with the couple marrying on May 3, 2010.  However, \nat the time of his death, he and his wife were living separate and apart while Sayel lived \nand stayed  with  his  uncle.    There  were  no  children  born  of  the  marriage.    His  uncle, \nIbrahim  Mohammed,  was  apparently  named  the  administrator  of  the  estate  of  Sayel \nMohammed  and  Krystle  Anne  Martish,  the  widow  of  Sayel  Mohammed,  in  regard  to  a \nclaim filed in Kentucky.  Per the evidence, a hearing was commenced  in regard to this \nmatter in the Commonwealth of Kentucky’s Department of Workers’ Claims on July 26, \n2016.  Krystle Martish later filed a Form AR-C in Arkansas on March 28, 2017, and then \nrequested a voluntary dismissal of her claim and an Order was obtained dismissing her \nclaim  on  November  13,  2017.    Ibrahin  Mohammed  (the  uncle)  filed  a  Form  AR–C  on \nAugust 8, 2017, on behalf of his brother and wife.  There also appears to be no doubt that \nSayel sent money home to his parents in significant amounts over a period of time for \ntheir assistance and support, although there appears to be some disagreement on when \n\nMOHAMMED (Dec’d) – G506822 \n \n9 \n \nand how.  In any case, it also appears that Yahya Mohammed, the father of Sayel, worked \nduring this period of time and continued working for two (2) years after Sayel’s death. \nThe primary issue before the Commission in this matter is the dependency death \nbenefits pursuant  to  the  Arkansas  Workers’  Compensation  Act.   Arkansas  Code \nAnnotated  §11-9-527(c) provides that compensation for the death of an employee shall \nbe  paid  to  those  persons  who  are  wholly  and  actually  dependent  upon  the  deceased \nemployee in the following percentage of the average weekly wage of the employee and \nin the following order of preference: (emphasis added) \n(1) (A) (i) To the widow if there is no child, thirty five (35%) and the compensation \nshall  be  paid  until  her  death  or  remarriage.    (ii)  However,  the  widow  shall \nestablish, in fact some dependency upon the deceased employee before she \nwill be entitled to benefits as provided in this section. \n \nArk. Code Ann. § 11-9-527 goes on to specifically state how compensation is to be made \nif  there  are  one  or  more  children.    If  there  are  no  children  and  no  widow,  the  statute \nprovides under (4) that twenty-five percent (25%) is to be paid to each parent. \n It is also noted that Ark. Code Ann. §11-9-111 provides that compensation to alien, \nnon-residents of the United States or Canada shall be the same in amount as provided \nfor residents, except that alien, non-resident dependents in any foreign country shall be \nlimited to the surviving wife or children, or if there is no surviving wife or children, to the \nsurviving father or mother who the employee has supported either wholly or in part, for \nthe period of (1) one year prior to the date of the injury. \n In White Oake Construction v. Oliver, 2011 Ark. App. 682, 386 S.W.3d 616 (2011), \nit was determined that Ark. Code Ann. §11-9-527 and Ark. Code Ann. §11-9-11, “must be \nread together to understand the Arkansas legislatures intent.  Even when statutes are to \nbe  strictly  construed,  they  must  be  read  in  their  entirety  harmonizing  each  subsection \n\nMOHAMMED (Dec’d) – G506822 \n \n10 \n \nwhere possible.”  It is clear Arkansas law gives preference to the claim of the widow.  It \nis  also  clear  that  the  surviving  widow  has  the  burden  to  establish  facts  showing \ndependency on her husband before being entitled to benefits. Royal v. Bypass Diesel & \nWrecker,  Inc.,  2014  Ark.  App.  90,  432  S.W.3d  139  (2014)    Here,  the  widow  made  the \ninitial  claim  for  benefits,  but  then  requested  that  her  claim  be  dismissed  and  even \ncontended that the benefits should be paid to Sayel’s parents.  There was absolutely no \nevidence that the widow had any expectations of support from her husband at the time of \nhis death and further, that no child was born of the marriage.  A later claim was made by \nthe parents of Sayel through his uncle.  Mr. Mohammed, Sayer’s father, testified, and it \nis found to be believable, that in the culture that the deceased was raised in, the children \nare responsible for the care of their aging parents, a clearly excellent method for a society \nto meet the health and well being needs of aging parents in the opinion of this weathered \nand worn Administrative Law Judge, who also cannot imagine the pain of losing a loyal \nson.  However, culture and beliefs do not control the payment of workers’ compensation \nbenefits  in  the  state  of  Arkansas.    The  statutes  do.    Here,  the  surviving  widow  was \nreceiving no benefits or support from the deceased, and consequently, based upon the \nworkers’ compensation law of Arkansas, the surviving widow who has priority for benefits \nis  not  entitled  to  receive  benefits  under  the  Arkansas  Workers’  Compensation Act  and \nconsequently  the  parents  of  the  decedent  are  also  not  entitled  to  partial  dependency \nbenefits pursuant to Ark. Code Ann. § 11-9-111 and Ark. Code Ann. §11-9- 527, due to \nthe  fact  that  the  widow  has  survived  and  Arkansas  law  does  not  provide  that  family \nmembers can choose who receives the benefits. \n\nMOHAMMED (Dec’d) – G506822 \n \n11 \n \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, it is found that the parents of the decedent, Yaha I. Mohammed and Yusra \nYameen Salama, have failed to satisfy the required burden of proof to show that they are \nentitled to partial dependency benefits pursuant to Arkansas Code Annotated § 11-9-111 \nand Arkansas Code Annotated § 11-9-527.  Consequently, the question of attorney fees \nis moot.  If not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \nIT IS SO ORDERED. \n  \n       ___________________________ \n        JAMES D. KENNEDY \n         Administrative Law Judge","textLength":20351,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G506822 SAYEL MOHAMMED (DECEASED), EMPLOYEE CLAIMANT v. MAVERICK TRANSPORTATION, LLC, EMPLOYER RESPONDENT #1 CORVEL ENTERPRISES COMPANY, INC., INSURANCE CARRIER/TPA RESPONDENT #1 DEATH AND PERMANENT DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED NOVEMBER...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:25.400Z"},{"id":"alj-H000250-2023-11-14","awccNumber":"H000250","decisionDate":"2023-11-14","decisionYear":2023,"opinionType":"alj","claimantName":"Darryl Payne","employerName":"Phillips Community College","title":"PAYNE VS. PHILLIPS COMMUNITY COLLEGE AWCC# H000250 NOVEMBER 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PAYNE_DARRYL_H000250_20231114.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PAYNE_DARRYL_H000250_20231114.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H000250 \n \nDARRYL G. PAYNE, EMPLOYEE      CLAIMANT \n \nPHILLIPS COMMUNITY COLLEGE, EMPLOYER       RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/TPA                       RESPONDENT \n \n \nOPINION FILED 14 NOVEMBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe on 17 August 2023 in Helena/West Helena, Phillips County, \nArkansas. \n \nThe claimant appeared pro se. \n \nMr. Robert H. Montgomery, Attorney-at-Law of Little Rock, Arkansas, appeared for \nthe respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe  above-captioned  case is  before  the  Commission  again  related  to  a \ncompensable  injury  that  the  claimant  sustained  on  7  January  2020. The present \nmatter was  heard  on 17 August 2023 in Helena/West  Helena,  Arkansas,  after  the \nparties  participated  in  a  prehearing  telephone  conference  on 23 May 2023. A \nPrehearing Order, admitted to the record without objection as “Commission’s Exhibit \nNo 1”,  was  entered  on that  same  day. The  Order  stated that the ISSUE  TO  BE \n\nD. Payne- H000250 \n2 \n \nLITIGATED was whether the claimant was entitled to additional treatment for his \ncompensable left quadriceps\n1\n injury. All other ISSUES were reserved. \nThe Prehearing Order set forth the following STIPULATION: \nThe  previous  decision  in  the  matter is  binding  precedent  under  the  Law  of  the \nCase Doctrine.\n2\n  \n \nThe claimant was the sole WITNESS at the hearing. \nThe  parties’ CONTENTIONS,  as  set  forth  in  their  prehearing  questionnaire \nresponses, were incorporated by reference into the Prehearing Order and were listed \nas follows: \nThe  claimant  CONTENDS  he  is  entitled  to additional medical treatment and \nassociated benefits.  \nThe  respondents  CONTEND,  generally,  that  the  claimant  has  received  all \nreasonable and necessary medical treatment for his compensable injury and that all \nappropriately related indemnity benefits have been paid accordingly. The additional \nspecifics of the contentions were read into the record in their entirety. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving  reviewed  the  record  as  a  whole  and  having  heard  testimony  from  the \nwitness, observing his demeanor, I make the following findings of fact and conclusions \nof law under ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n \n1\n The Prehearing Order stated a “compensable left lower extremity injury,” but as an alleged knee \ninjury  and  potentially  associated  treatment  was  at  issue  in  the  hearing,  the  parties  agreed  on  the \nrecord that stipulating to a compensable injury to the left quadriceps was appropriate. See TR at 10. \n2\n That decision dated 22 June 2022 and authored by Administrative Law Judge Katie Anderson was \nentered into this record without objection as Commission’s Exhibit No 2. \n\nD. Payne- H000250 \n3 \n \n2. The previous ALJ decision is binding under the Law of the Case Doctrine. \n \n3. The claimant failed to establish by a preponderance of the evidence that he is \nentitled to any additional medical treatment for his compensable injury. Nor is he \nentitled to any additional indemnity benefits related thereto. \n \n4. This matter should be dismissed accordingly. \n \nIII.  HEARING TESTIMONY and EVIDENCE    \nMr. Darryl Payne testified on his own behalf as the sole witness at the hearing. \nHe  appeared  for  the  hearing  with  some  records  or  copies  of  records  that  were  not \nprovided   to   the   Commission   or   opposing   counsel   before   the   hearing   and   in \nconformance  with  ACA  §  11-9-705(c)(2)(A).  Respondents’  counsel  appropriately \nobjected  to  those  records being  admitted  to  the  record.  The  nature  of  the  objection \nwas explained to the claimant, and the objection was sustained. [TR at 13-17] \nAfter some additional discussion about evidence and records, the Commission \nasked the pro se claimant to explain, “what exactly are you asking for today?” [TR at \n17]   He responded that he wanted the respondents to fix his knee. While the claimant \nreviewed  some  of  the  records  admitted  into  evidence  without  objection,  including \n“Respondent’s Exhibit No 1,” which included a report from Dr.  Charles Pearce, Mr. \nMontgomery began asking some questions of the claimant. [TR at 21] \nThe  claimant  was injured  on  7 January  2020 when  he  fell down  some  stairs \nwhile carrying computer equipment. [TR at 22] Under the care of Dr. Phillip Smith, \nhe was diagnosed with and treated for a left quadriceps tendon injury. A July 2020 \nMRI report read that the claimant’s meniscus was normal. [TR at 23] \n\nD. Payne- H000250 \n4 \n \nMr. Payne stated that his care with Dr. Smith ended after he (the claimant) \ncame to believe that he had a knee problem that Dr. Smith was not addressing. [TR \nat 24] The claimant mentioned seeing Dr. D’Orsay Bryant via a Change of Physician \nOrder and also saw, at some point, Drs. Martin and Busby. He was eventually seen \nat UAMS by Dr. Charles Pearce, who he testified had the benefit of accessing all of \nhis previous medical reports. [TR at 25] The claimant recalled Dr. Pearce indicating \nthat  he  reviewed  previous  reports and  that  Dr.  Pearce  did  not  believe  that  any \nadditional impairment ratings were appropriate for the left leg. [TR at 26] The doctor \nfurther  indicated  that  he  did  not  believe  any  additional  diagnostic  or  treatment \nmodalities were appropriate. Discussing Dr. Pearce’s report further, the claimant \nrecalled Dr. Pearce stating that his main deficit was related to decreased leg strength \nwhich  was  under  the  claimant's  control.  The  claimant  made  clear  that  while  he \nrecalled that opinion, he disagreed with it. He also disagreed with Dr. Pearce’s \nopinion that there would be little benefit from some arthroscopic procedure that the \nclaimant had discussed with some other provider. [TR at 27] \nThe claimant acknowledged that despite Dr. Pearce’s opinion against any \nadditional  treatment  being  indicated,  the  respondents  approved  an  additional  four \nweeks of physical therapy for his left leg. [TR at 27, Respondent’s Ex. No 2 at 47] He \nfurther agreed that it was settled in previous litigation that he reached MMI on 13 \nJuly 2021, but that he is now asking for additional surgery on his knee. [TR at 28] \nMr.  Payne  went  on  to  state  that  he believes  that  he is  entitled to  additional \nTTD benefits, but he appeared to relate that back to his previous position that he was \n\nD. Payne- H000250 \n5 \n \nentitled  to  a twenty  percent  (20%) impairment  rating  to  the  whole  body—a  rating \nthat Judge Anderson already found he was not entitled to. [TR at 29] He then said \nthat he should receive some additional TTD benefits because he never healed, despite \nthe earlier finding of MMI. [TR at 30] \nThe claimant testified that he was looking for work and thought that he could \nperform a sit-down job. [TR at 31]  He recalled testifying at his deposition that he has \nconcerns about arthritis and that he would like additional treatment on his left leg to \nevaluate for potential arthritis. [TR at 33]  His recent application for Social Security \nbenefits  was  denied,  but  he  acknowledged  experience  or  skills  in  many  areas  of \nbusiness operations. Mr. Payne recalled a vocational rehabilitation counselor saying \nthat he needed to “step up” his efforts to find a  job  and  stated  that  he  felt  he  had \nfollowed through on that. [TR at 35]  Mr. Payne further recalled the FCE placing him \nin  a medium  job  classification.  He  denied  continuing  leg  exercises  previously \nperformed at home to improve his strength. [TR at 36] \nThe parties discussed some evidentiary and procedural aspects of the case and \nclosed the record. [TR at 45] \nDr. Pearce’s report was discussed multiple times by the parties. That note \ninitially indicated that a final opinion would be offered once he was able to review the \nFCE report. His addendum to that note, dated 30 December 2020 states: \nI have received and reviewed the functional capacity evaluations \ncompleted  by  this  patient  on  August  13,  2021  and  November  3,  2021. \nThe patient gave valid effort with both tests and for both tests he was \nplaced in the medium category of work as outlined by the department of \nlabor. This allows occasional lifting from 21-50 lbs, frequent lifting 11-\n20 lbs and constant lifting 1-10 lbs. These are his restrictions. He has \n\nD. Payne- H000250 \n6 \n \npreviously been given impairment ratings and no additional impairment \nis indicated. There is no indication for further diagnostic or treatment \nmodalities for him. His main deficit is related to decreased strength in \nthe leg which is fully under his own control in my opinion. Arthroscopy \npreviously discussed by another physician would be of little benefit for \nhim. These statements are made within a degree of medical certainty.  \n[See Resp. Ex. No 1 at 15-17]  \n \nThe diagnosis for the visit with Dr. Pearce stated only “weakness of left  \n \nlower extremity.” \n \nIV.  ADJUDICATION \n The stipulated facts are outlined above. It is settled that the Commission, with \nthe benefit of being in the presence of the witness and observing his or her demeanor, \ndetermines  a  witness’  credibility  and  the  appropriate  weight  to  accord  their \nstatements. See Wal-Mart Stores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d \n522 (1999).   \nA.  The Claimant Failed to Prove by a Preponderance of the Evidence that he is \nEntitled to Any Additional Benefits. \n \nThe parties previously stipulated to a compensable injury to the claimant’s left \nlower extremity, specifically his quadriceps, and treatment and related benefits were \nprovided.  The  question  now  is  whether  he  is  entitled  to  additional  treatment  and \nbenefits for an alleged problem with his left knee that he claims is causally related to \nthe compensable injury. Arkansas law requires an employer to promptly provide for \nmedical treatment and surgical services that are reasonably necessary and related to \ninjuries sustained by an employee. ACA § 11-9-508(a). A claimant must prove, by a \npreponderance of the evidence, that medical treatment is reasonable and necessary. \nWal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.2d 153 (2003). Reasonable \n\nD. Payne- H000250 \n7 \n \nand necessary medical services may include those necessary to, among other things, \nreduce or alleviate symptoms resulting from the compensable injury. Jordan v. Tyson \nFoods, Inc., 51 Ark. App. 100, 911 S.W.2d 953, 1995 Ark. App. LEXIS 589. A claimant \nis not required to provide objective medical proof of his need for continued treatment. \nArk. Health Ctr. V. Burnett, 2018 Ark. App. 427, 558 S.W.3d 408. But the claimant \nbears the burden of establishing by a preponderance of the evidence that treatment \nis reasonable and necessary and that it bears a causal connection to the work injury. \nCossey v. Pepsi Beverage Co., 2015 Ark. App. 265, 460 S.W.3d 814. \nThe claimant failed to meet his burden on the claim that he is entitled to any \ntreatment or benefits beyond what he already received. The respondents provided a \nreport from Dr. Pearce that found no issue with the restrictions previously placed on \nthe  claimant  and  assessed  him only with  weakness  in  his  leg,  attributing  that \nweakness  to  the  claimant’s  own  control.  Dr.  Pearce  opined  that  any  additional \ndiagnostics or  treatment  would  be  of  little  benefit  and  specifically  opined  against \nsome  sort  of  arthroscopic procedure  that  the  claimant  discussed  with  another \nprovider at some point. Mr. Payne provided no documentary evidence in support of \nhis claims and  he  provided  no  testimony  to  persuade  me  that  a  present  condition \nrequires treatment and is causally related to his compensable injury. \nOn this record the claimant simply failed to prove by a preponderance of the \nevidence that he is entitled any additional treatment or associated benefits beyond \nwhat the respondents have already provided. \nV.  ORDER \n\nD. Payne- H000250 \n8 \n \n Consistent with the Findings of Fact and Conclusions of Law set forth above, \nthis claim is DENIED AND DISMISSED. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":12437,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H000250 DARRYL G. PAYNE, EMPLOYEE CLAIMANT PHILLIPS COMMUNITY COLLEGE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED 14 NOVEMBER 2023 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:2","denied:4"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T23:00:27.546Z"},{"id":"alj-H206370-2023-11-13","awccNumber":"H206370","decisionDate":"2023-11-13","decisionYear":2023,"opinionType":"alj","claimantName":"Kytryk Robinson","employerName":"Pods LLC","title":"ROBINSON VS. PODS LLC AWCC# H206370 NOVEMBER 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Robinson_Kytryk_H206730_20231113.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Robinson_Kytryk_H206730_20231113.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206730 \n \n \nKYTRYK L. ROBINSON, EMPLOYEE CLAIMANT \n \nPODS LLC, EMPLOYER RESPONDENT \n \nLM INS. CORP., \n CARRIER RESPONDENT \n \n \nOPINION FILED NOVEMBER 13, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on November 9, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  David  C.  Jones,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on  November 9, 2023, in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro se,  failed  to  appear  at  the  hearing.  \nWithout  objection,  the  Commission’s  file  on  the  claim  has  been  incorporated \nherein  in  its  entirety  by  reference.    In  addition,  Respondents’  Exhibit  1, forms, \npleadings  and  correspondence  related  to  the  claim,  consisting  of 33  numbered \npages, was admitted into evidence. \n\nROBINSON – H206730 \n2 \n \n The record reflects the following procedural history: \n The  First  Report  of  Injury  or  Illness  filed  on  September  19,  2022,  reflects \nthat  Claimant  purportedly  injured  his  lower  back  in  a  motor  vehicle  accident  on \nSeptember  8,  2022.    Per  the  Form  AR-2  that  was  also  filed  on  September 21, \n2022,  Respondents  accepted  the  claim  and  paid  medical  and  temporary  total \ndisability benefits pursuant thereto. \n Through  then-counsel  Laura  Beth  York,  Claimant  filed  a  Form  AR-C  on \nNovember  1,  2022.    Therein,  he  requested  the  full  range  of  initial  and  additional \nbenefits   in   connection   with   his   alleged   back   injury.      No   hearing   request \naccompanied this filing.  On February 27, 2023, York moved to withdraw from her \nrepresentation  of  Claimant.    In  an  order  entered  on  March  9,  2023,  the  Full \nCommission granted the motion under AWCC Advisory 2003-2. \n The  record  reflects  that  no  further  activity  occurred  on  the  claim  until \nSeptember  11,  2023,  when  Respondents  filed  the  instant  motion,  asking  for \ndismissal of it under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702(a)(4) & (d) \n(Repl.  2012).    On  September  14,  2023,  my  office  wrote  Claimant,  asking  for  a \nresponse  to  the  motion  within 20  days.    The  letter  was  sent  by  first-class  and \ncertified mail to the address listed for Claimant in the file and matching that on his \nForm  AR-C.    Someone  with  an  illegible  signature  claimed  the  certified  letter  on \nSeptember 16,  2023; and  the first-class  correspondence  was  not  returned to  the \nCommission.  Regardless, no response from him was forthcoming.  On October 9, \n2023,  I  scheduled  a  hearing  on  Respondents’  motion  for November  9,  2023,  at \n\nROBINSON – H206730 \n3 \n \n11:00 a.m. at the Commission in Little Rock.  Notice of this was sent to Claimant \nby  certified  and  first-class  mail  at  the  same  address  as  before.    In  this  instance, \nthe  United  States Postal  Service  was  unable  to  verify  whether or  not he  claimed \nthe  certified  letter.    But  the  record  reflects  that  neither  it  nor  the  first-class \ncorrespondence   was   returned   to   the   Commission.      Thus,   the   evidence \npreponderates that he received the Notice of Hearing. \n The   hearing   on   the   Motion   to   Dismiss  proceeded  as   scheduled   on \nNovember  9,  2023.    Again,  Claimant  failed  to  appear  at  the  hearing.   But \nRespondents  appeared  through  counsel  and  argued  for  dismissal  under  the \naforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission has  jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute his claim. \n4. Dismissal of this claim is thus warranted under AWCC R. 099.13. \n\nROBINSON – H206730 \n4 \n \n5. The  application  of  Ark.  Code  Ann.  §  11-9-702(d)  (Repl.  2012)  is \nmoot and will not be addressed. \n6. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof the claim within limitation period specified in subsection (b) of this \nsection. \n \nIn turn, AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing  the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nclaim–by  a  preponderance  of  the  evidence.  This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nROBINSON – H206730 \n5 \n \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon; and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of  it  (including  appearing  at  the  November  9,  2023,  hearing  to  argue \nagainst  its  dismissal)  since  the  filing  of  the  Form  AR-C on November  1,  2022.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause  of  this  finding,  the  application  of  §  11-9-702(d)  is  moot  and  will  not  be \naddressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional Adjustment  Bureau  v.  Strong,  75 Ark.  249, \n629  S.W.2d  284  (1982)).  At  the  hearing,  Respondents  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities,  I  agree  and  find  that  the \ndismissal of this claim should be and hereby is entered without prejudice.\n1\n \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nROBINSON – H206730 \n6 \n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":8032,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H206730 KYTRYK L. ROBINSON, EMPLOYEE CLAIMANT PODS LLC, EMPLOYER RESPONDENT LM INS. CORP., CARRIER RESPONDENT OPINION FILED NOVEMBER 13, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on November 9, 2023, in Little Rock, Pulaski County, ...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:00:21.248Z"},{"id":"alj-H300775-2023-11-09","awccNumber":"H300775","decisionDate":"2023-11-09","decisionYear":2023,"opinionType":"alj","claimantName":"John Cox","employerName":"Aramark Uniform & Career Apparel","title":"COX VS. ARAMARK UNIFORM & CAREER APPAREL AWCC# H300775 NOVEMBER 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//COX_JOHN_H300775_20231109.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COX_JOHN_H300775_20231109.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H300775 \n \nJOHN COX, EMPLOYEE   CLAIMANT \n \nARAMARK UNIFORM & CAREER APPAREL, EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED NOVEMBER 9, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by RANDY P. MURPHY, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  February 3, 2023, claimant filed Form AR-C, alleging a compensable injury on December \n2, 20222.   Claimant was represented at the time by Laura Beth York,  who filed a Motion to Withdraw \non August 23, 2023 and was allowed to withdraw on September 6, 2023.  No other attorney entered \nan appearance on claimant’s behalf.     \nOn September 18, 2023, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time. A hearing on  respondent’s Motion to Dismiss was scheduled for \nNovember 2, 2023.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address in the Commission’s file.  The notice was delivered to claimant on September 22, 2023.   \nClaimant  did  not  respond  to  respondent’s motion  and  did  not  appear  in  person  at  the  hearing  on \nNovember 2, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nCox-H300775 \n \n2 \n \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2237,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300775 JOHN COX, EMPLOYEE CLAIMANT ARAMARK UNIFORM & CAREER APPAREL, EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED NOVEMBER 9, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in S...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:19.182Z"},{"id":"alj-H207642-2023-11-08","awccNumber":"H207642","decisionDate":"2023-11-08","decisionYear":2023,"opinionType":"alj","claimantName":"Quinton Thomas","employerName":"Hino Motors Mfg USA Inc","title":"THOMAS VS. HINO MOTORS MFG USA INC. AWCC# H207642 NOVEMBER 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Thomas_Quinton_H207642_20231108.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Thomas_Quinton_H207642_20231108.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H207642 \n \nQUINTON D. THOMAS, EMPLOYEE CLAIMANT \n \nHINO MOTORS MFG USA INC., \nEMPLOYER RESPONDENT \n \nFIRST LIBERTY INSURANCE CORP.,  \nINSURANCE CARRIER                       RESPONDENT \n \n \nOPINION FILED NOVEMBER 8, 2023 \n \nHearing before Administrative Law Judge Steven Porch on October 6, 2023, in Marion, \nArkansas. \n \nClaimant was represented by Mr. Tanner Thomas, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  were  represented  by  Mr.  Michael  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A full  hearing  was  held  on  this  claim  on  October  6,  2023.    Claimant  was \nrepresented by Mr. Tanner Thomas, Attorney at Law, Little Rock, Arkansas; Respondents \nwere represented by Mr. Michael Ryburn, Attorney at Law, Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n \n2. An   employer/employee/carrier   relationship   existed   among   the \nparties on October 18, 2022, when Claimant sustained compensable \ninjury to his lower back. \n \n3. The  parties  will  stipulate  to Claimant’s  average  weekly  wage  and \ncompensation rates on or before the hearing date. \n \n \n \n\nTHOMAS H207642 \n \n2 \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether Claimant sustained compensable injuries to his groin, left testicle, left \nhip, and left leg by specific incident. \n \n2.  In the alternative, whether Claimant’s alleged injuries to his groin, left testicle, \nleft hip, and left leg are a compensable consequence of the lower back injury.\n1\n  \n \n3.  Whether Claimant is entitled to reasonable and  necessary medical treatment \nof his lower back and alleged groin, left testicle, left hip, and left leg injuries. \n \n4.  Whether Claimant is entitled to temporary total disability benefits for his alleged \ngroin, left testicle, left hip, and left leg injuries from October 18, 2022, to a date \nyet to be determined. \n \n5.  Whether Claimant is entitled to additional reasonable and necessary medical \ntreatment for his lower back injury. \n \n6.  Whether Claimant is entitled to additional temporary total disability benefits for \nhis compensable lower back injury. \n \n7.  Whether Claimant is entitled to a controverted attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nA.  Claimant Contentions. \n \nClaimant contends that on October 18, 2022, he was in the scope and course of \nemployment, unloading a cart of brakes, when the cart was knocked into him, causing \nhim pain in his back, groin, left hip and left leg. Claimant reported the injury immediately \nand filled out an accident report. \nAn  MRI of  the  Claimant’s  low  back  revealed  a  disc  extrusion  at  L5-S1;  but  the \nClaimant  has  also  been  referred  for  an  MRI  to  the  left  hip,  injections  for  the  low  back \n \n1\n This was argued briefly at the full-hearing and later argued by post-hearing brief by the \nClaimant. \n\nTHOMAS H207642 \n \n3 \n \ninjury,  and  to  a  urologist  for  the  pain  in  his  groin.  Respondents  have  denied  all  of  this \ntreatment. \nAdditionally, the Claimant’s employer cannot accommodate light duty restrictions, \nbut the Respondents refuse to pay temporary total disability. \nClaimant  contends that  he  is  entitled  to  additional  medical  treatment,  temporary \ntotal disability benefits, and that his attorney is entitled to an attorney’s fee.  \nB.  Respondent Contentions. \nThe Claimant was paid temporary total disability benefits up to February 21, 2023, \nwhen he was released to return to duty.   \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  non-medical \ndocuments,  and  other  matters  properly  before  the  Commission,  I  hereby  make  the \nfollowing findings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-\n9-704 (Repl. 2012): \n1.  The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The  Claimant  has  not  proven  by  the  preponderance  of  the  evidence  that  he \nsustained a compensable injury to his groin, left leg, left hip and left testicle on \nOctober 18, 2022. \n  \n4.  The Claimant did not prove by a preponderance of the evidence that his alleged \ngroin, left leg, left hip, and left testicle injuries are a compensable consequence \nof the lower back injury. \n \n5.  The  Claimant  has  proven  by  the  preponderance  of  the  evidence  that he  is \nentitled  to  reasonable  and  necessary  medical  treatment  for  his  lower  back, \nincluding injections and a L5-S1 decompression and fusion. \n \n\nTHOMAS H207642 \n \n4 \n \n6.  Claimant has proven by the preponderance of the evidence that he is entitled \nto additional TTD following his October 18, 2022, low back injury. \n \n7.  Claimant has proven by the preponderance of the evidence that his attorney is \nentitled to a controverted attorney’s fees. \n \nCASE IN CHIEF \nSummary of Evidence \n The record consisted of Claimant’s Exhibit 1 Medical Records, that consists of 32 \npages,  Commission  Exhibit  1,  Pre-Hearing  Order,  that  consists  of  5  pages, Claimant’s \nand Respondent’s post-hearing briefs. I also had the opportunity to hear the testimony \nand observe the demeanor of the Claimant, Quinton Thomas, who was the sole witness \nin the full hearing.  \nThe Claimant suffered an alleged compensable injury to his lower back, groin, left \ntesticle,  left  leg,  and  left  hip  during  the  course  and  scope  of  his  employment  with \nRespondent.  Claimant  worked  as  an  equipment  unloader  for  the  Respondent.  While \nunloading brakes, another employee hit a table where Claimant was working and pinned \nhim between the table and a cart of brakes. The Claimant was pinned between the table \nand  cart  of  brakes  by  his  hips.  The  force caused  Claimant’s  hips  to  squeeze  together \nallegedly  impacting Claimant’s lower  back,  groin,  left  testicle,  left  leg,  and  left  hip. \nClaimant stated that the squeezing produced a painful knot to the left  side of his groin. \nClaimant told the doctors about this knot, but the doctors did not see a need to treat or \nexamine  it.  However,  Claimant  did  suffer  a  small  left  disc  protrusion  which  abuts  the \nexiting left L4 nerve root within the left foraminal zone. \nThe Claimant was placed on light duty in February of 2023, but Respondents did \nnot provide any light duty work. Claimant alleges that he can only do an hour of activity \n\nTHOMAS H207642 \n \n5 \n \nthen he would have to sit down. Dr. John Brophy treated Claimant and recommended a \nnerve block but this treatment for his back was denied by Respondent. Dr. Brophy didn’t \ntreat  the  groin  and  testicular  pain  because  it  was  pre-existing  and  felt  that  private \ninsurance should be used. Essentially, the groin and testicular pain were different issues.  \nAdjudication \n A. Compensability of Groin, Left Testicle, Left Hip, and Left Leg. \n Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i)   An accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \nmedical services or results in disability or death.  An injury is “accidental” \nonly if it is caused by a specific incident and is identifiable by time and place \nof occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe  element  “arising  out  of  .  .  .  [the]  employment”  relates  to  the  causal  connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when  a  causal  connection  between  work  conditions  and  the  injury  is  apparent  to  the \nrational mind.”  Id. \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.  Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \n\nTHOMAS H207642 \n \n6 \n \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness but may accept and translate into findings of fact only those portions of \nthe testimony that it deems worthy of belief.  Id. \nThe Claimant has not produced any medical objective findings for Claimant’s left \nhip,  left  leg,  groin,  and  left  testicle.  For  that  reason,  Claimant  cannot  prove  that  he \nsustained  a  compensable  injury  to  these  body  parts  by  specific  incident.  However, \nClaimant  has  pled  in  the  alternative  that  these  alleged  injuries  are  compensable \nconsequences.  \nB. Are Claimant’s Injuries to His Left Testicle, Left Hip, and Left Leg the result of \na Compensable Consequence. \n \nIf  an  injury  is  compensable, every  natural  consequence of  that  injury  is  likewise \ncompensable.   Air  Compressor  Equip.  Co.  v.  Sword,  69  Ark.  App.  162,  11  S.W.3d  1 \n(2000); Hubley v. Best West. Governor’s Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996).  \nThe test is whether a causal connection between the two episodes exists.  Sword, supra; \nJeter  v.  McGinty  Mech.,  62  Ark. App.  53, 968  S.W.2d  645  (1998).   The existence  of  a \ncausal  connection  is  a  question  of  fact  for  the  Commission.   Koster  v.  Custom  Pak  & \nTrissel,  2009  Ark.  App.  780,  2009  Ark.  App.  LEXIS  947.    It  is  generally  a  matter  of \n\nTHOMAS H207642 \n \n7 \n \ninference,  and  possibilities  may  play  a  proper  and  important  role  in  establishing  that \nrelationship.   Osmose  Wood  Preserving  v.  Jones,  40  Ark.  App.  190,  843  S.W.2d  875 \n(1992).  A finding of causation need not be expressed in terms of a reasonable medical \ncertainty where supplemental evidence supports the causal connection.  Koster, supra; \nHeptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, 137 S.W.3d 421 (2003). \n Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), a claimant has the burden of \nestablishing  the  existence  of  a  compensable  consequence  by  a  preponderance  of  the \nevidence.  This standard means the evidence having greater weight or convincing force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., \n212 Ark. 491, 206 S.W.2d 442 (1947). \n As stated earlier, the determination of a witness’ credibility and how much weight \nto accord to that person’s testimony are solely up to the Commission.  White v. Gregg \nAgricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort \nthrough  conflicting  evidence  and  determine  the  true  facts.   Id.    In  so  doing,  the \nCommission is not required to believe the testimony of the claimant or any other witness \nbut may accept and translate into findings of fact only those portions of the testimony that \nit deems worthy of belief.  Id. \nThe  compensable  injury  here  is  to  the  lower  back.  No  evidence  was  presented \nshowing a causal connection between Claimant’s compensable low back injury and the \nalleged injuries to his left hip, left leg, groin, and left testicle. Thus, I find the Claimant has \nnot proven by the preponderance of the evidence that he sustained injuries to his left hip, \nleft leg, groin, and left testicle as a compensable consequence of his low back injury. Due \n\nTHOMAS H207642 \n \n8 \n \nto this finding, I further find that temporary total disability benefits and medical treatment \nfor these alleged injuries are moot. \nC.  Whether  Claimant  is  entitled  to  any  additional  reasonable  and  necessary \nmedical treatment for low back injury. \n \nArkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states  that  an \nemployer  shall  provide  for  an  injured  employee  such  medical  treatment  as  may be \nnecessary in connection with the injury received by the employee.  Wal-Mart Stores, Inc. \nv. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only for \nsuch treatment and services as are deemed necessary for the treatment of the claimant’s \ninjuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  The claimant \nmust prove by a preponderance of the evidence that medical treatment is reasonable and \nnecessary for the treatment of a compensable injury.  Brown, supra; Geo Specialty Chem. \nv. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).  What constitutes reasonable and \nnecessary   medical   treatment   is   a  question   of  fact  for   the   Commission.   White \nConsolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As the Arkansas Court of Appeals has held, a claimant may be entitled to additional \ntreatment  even  after  the  healing  period  has  ended,  if  said  treatment  is  geared  toward \nmanagement of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 \n(1983).  Such services can include those for the purpose of diagnosing the nature and \nextent  of  the  compensable  injury;  reducing  or  alleviating  symptoms  resulting  from  the \ncompensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing  further \ndeterioration of the damage produced by the compensable injury.  Jordan v. Tyson Foods, \n\nTHOMAS H207642 \n \n9 \n \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \nDr. John Brophy recommends an injection for the lower back injury or the option \nof surgical intervention to include an L5-S1 decompression and fusion. Claimant Exhibit \n1,  p.  23.  The  purpose  of  these  treatments  is  to  alleviate  symptoms  of  the  Claimant’s \ncompensable  low  back  injury. I  hereby  credit  Dr.  John  Brophy’s  opinion  concerning \nClaimant’s treatment of his lower back injury. Thus, I find by the preponderance of the \nevidence  that  Claimant  is  entitled  to  reasonable  and  necessary  medical  treatment, \nincluding injections to his lower back and the L5-S1 decompression and fusion.  \nD.  Whether Claimant is entitled to additional temporary total disability benefits to \na date yet to be determined. \n \nClaimant’s compensable lower back injury is an unscheduled one. See Ark. Code \nAnn. § 11-9-521. An employee who suffers a compensable unscheduled injury is entitled \nto temporary total disability compensation for that period within the healing period in which \nhe suffered a total incapacity to earn wages. Ark. State Highway and Transportation Dept. \nv. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period ends when the \nunderlying condition causing the disability has become stable and nothing further in the \nway of treatment will improve that condition. Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, \n628 S.W.2d 582 (1982). Also, a claimant must demonstrate that the disability lasted more \nthan  seven  days.  Id.,  A.C.A. §  11-9-501(a)(1).  Claimant  must  prove  his  entitlement  to \ntemporary total disability benefits by a preponderance of the evidence. Ark. Code Ann. § \n11-9-705(a)(3) (Repl. 2002). This standard means the evidence having greater weight or \nconvincing  force. Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; Smith  v.  Magnet \nCove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947).  \n\nTHOMAS H207642 \n \n10 \n \nThe  Claimant  was  released  to  light  duty;  however,  he  was  never  given  the \nopportunity to work. The Claimant expressed that he had a great deal of pain in his lower \nback  and  could  move  about  for  an  hour  where  he  then  would  have  to sit  down.  The \nCommission  was  not  presented  with  any  credible  evidence  that  demonstrated  that  the \nClaimant’s  healing  period  for  his  back  has  ended. The  Claimant  testified  that  he  was \nunsure whether he could perform light duty work. Nevertheless, despite his many phone \ncalls to the Respondent/Employer to acquire light duty work, the Respondent/Employer \ndid not accommodate this light duty work restriction. The Claimant, whose work history \ninvolved mainly manual labor, remained off from work. Thus, the evidence is insufficient \nto determine whether he did suffer a total incapacity to earn wages.  \nNonetheless,  a  claimant  who  has  been  released  to  light  duty  work  but  has  not \nreturned to work may be entitled to temporary total disability benefits where insufficient \nevidence  exists  that  the  claimant  has  the  capacity  to  earn  the  same  or  any part of  the \nwages  he  was  receiving  at  the  time  of  the  injury. Ark.  State  Hwy  &  Transp.  Dept.  v. \nBreshears, 272 Ark. 244, 613 S.W.2d 392 (1981); Sanyo Mfg. Corp. v. Leisure, 12 Ark. \nApp. 274, 675 S.W.2d 841 (1984). I credit Claimant’s testimony that he has made many \nefforts  to  return  to  work  with  restrictions  but  was  not  given  that  opportunity  by  the \nRespondent/Employer. I credit Claimant’s testimony that he wants to try to work. By the \nRespondent/Employer’s refusal to allow the Claimant to return to work with restrictions, \nit’s clear that Claimant did not have the capacity to earn wages. Moreover, no evidence \nwas  presented  pertaining  to  his  ability  to  earn  wages.  Therefore,  I  find  by  the \npreponderance  of  the  evidence  that  Claimant  has  proven  his  entitlement  to  additional \ntemporary total disability benefits from February 2, 2023, to a date to be determined.  \n\nTHOMAS H207642 \n \n11 \n \nATTORNEY FEES \nOne of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, \n745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat a claim has been controverted, in whole or in part, the commission shall \ndirect that fees for legal services be paid to the attorney for the claimant as \nfollows:  One-half (½) by the employer or carrier in addition to compensation \nawarded;  and  one-half  (½)  by  the  injured  employee  or  dependents  of  a \ndeceased employee out of compensation payable to them. \n \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have \ncontroverted Claimant’s entitlement to additional indemnity benefits.  Thus, the evidence \npreponderates that his counsel, the Hon. Tanner Thomas, is entitled to the fee as set out \nabove. \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above. All accrued sums, minus any lawful \noffsets, shall be paid in a lump sum without discount, and this award shall earn interest \nat  the  legal  rate  until  paid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2002).   See \nCouch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","textLength":20638,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H207642 QUINTON D. THOMAS, EMPLOYEE CLAIMANT HINO MOTORS MFG USA INC., EMPLOYER RESPONDENT FIRST LIBERTY INSURANCE CORP., INSURANCE CARRIER RESPONDENT OPINION FILED NOVEMBER 8, 2023 Hearing before Administrative Law Judge Steven Porch on October 6, 2023, in M...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["back","hip"],"fetchedAt":"2026-05-19T23:00:17.046Z"},{"id":"alj-H003228-2023-11-07","awccNumber":"H003228","decisionDate":"2023-11-07","decisionYear":2023,"opinionType":"alj","claimantName":"Kimberly Parker","employerName":"Nidec Motor Corp","title":"PARKER VS. NIDEC MOTOR CORP. AWCC# H003228 NOVEMBER 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PARKER_KIMBERLY_H003228_20231107.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PARKER_KIMBERLY_H003228_20231107.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H003228 \n \nKIMBERLY PARKER, Employee CLAIMANT \n \nNIDEC MOTOR CORP., Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED NOVEMBER 7, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by DAVID L. SCHNEIDER, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  August  10,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on  May  8,  2023,  and  a  Pre-hearing  Order \nwas  filed  on  May  9,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on October \n2, 2019. \n 3.  The  claimant  sustained  a  compensable  right  shoulder  injury  on  or  about  October  2, \n2019. \n 4.  The  respondents  have  controverted  the  claimant’s  alleged  neck  injury  on  or  about \nOctober 2, 2019. \n\nParker – H003228 \n \n-2- \n 5. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $571.00  for  temporary  total  disability  benefits  and  $428.00  for  permanent  partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to her neck on or about October 2, \n2019. \n 2. Whether Claimant is entitled to medical treatment for her neck injury as recommended \nby Dr. Garlow. \n 3. Whether Claimant is entitled to additional medical treatment for her shoulder injury. \n 4.  Whether  Claimant  is  entitled  to  reimbursement  for  out-of-pocket  medical  expenses \nregarding both her neck and right shoulder injuries. \n 5.  Whether  Claimant  is  entitled  for  temporary  total  disability  benefits  from  March  3, \n2021, to a date yet to be determined. \n 6. Whether Claimant’s attorney is entitled to an attorney fee. \n Claimant’s contentions are: \n“Claimant sustained an admittedly compensable injury to her right \nshoulder while working for Respondent on or about 10/02/19 while \nlifting a heavy coil. At the time of the injury, Claimant was acting \nin  the  course  and  scope  of  her  employment  with  respondent.  The \nClaimant   also   contends   that   in   the   same   lifting   accident   on \n10/02/19  when  she  sustained  her  right  shoulder  injury,  she  also \nsuffered   an   injury   to   her   neck.   Respondents   have   provided \nClaimant  certain  medical  benefits,  including  injections,  therapy, \nmedications,  and  surgery.  Because  Claimant  continued  to  suffer \npain  in  her  right  shoulder  and  neck,  she  requested  an  obtained  a \nchange of physician to Dr. Garlow on 5/10/21. When the Claimant \nsaw Dr. Garlow pursuant to that change, he performed an injection \ninto her right shoulder. Dr. Garlow also indicated some of her pain \nand  related  symptoms  were  coming  from  her  neck.  An  MRI  and \nphysical  therapy  for  her  neck  was  recommended  by  Dr.  Garlow, \n\nParker – H003228 \n \n-3- \nbut was denied by the Respondents. Dr. Fortner, another physician \nseen by the Claimant, issued work restrictions on March 3, 2021. \n \nSince  that  time,  Respondents  have  not  offered  the  Claimant  a \nreturn  to  work  or  tendered  TTD  benefits.  Claimant  recently  saw \nDr.  Garlow  at  her  own  expense.  He  directed  her  to  undergo  a \ncervical   MRI   and   referred   her   to   physical   therapy   and   a \nneurosurgical  consult.  The  respondents  should  be  found  liable  for \nall medical  expenses  arising from Dr. Garlow and his referrals, as \nwell  as  any  other  medical  care  she  had  received  from  other \nauthorized physicians.” \n \n Respondents’ contentions are: \n \n“Respondents   contend   that   the   claimant   did   not   sustain   a \ncompensable   injury   to   her   neck   in   the   course   and   scope   of \nemployment.  Claimant  was  provided  work  within  any  restrictions \nrelated   to   her   compensable   shoulder   injury.   Claimant’s   neck \ncomplaints are not work related and instead are the result of a pre-\nexisting    condition(s)    for    which    the    respondents    are    not \nresponsible.” \n \n The  claimant  in  this  matter  is  a  51-year-old  female  who  sustained  an  admittedly \ncompensable  right  shoulder  injury  on  October  2,  2019.  The  claimant  was  employed  by  the \nrespondent to test electrical coils and then while seated, move the electrical coils from a testing \narea  in  front  of  her  to  a  table  behind  her.  In  her  direct  examination  testimony,  the claimant \ndescribes  her  work  on  October  2,  2019,  when  she  suffered  an  admittedly  compensable  right \nshoulder injury as follows: \nQ On that particular day, what kind of coils were you working \nwith? \n \nA The  large  ten-pound  coils.  I  would  test  like  four  and  then \npick  those  four  up,  which  would  be  about  40  pounds,  and  move \nthem  to  the  table  behind  me  which  would  go  over  my  head  or  to \nthe table to the left if they were bad. \n \nQ Did you remain seated the entire time? \n \nA Yes, sir. \n \n\nParker – H003228 \n \n-4- \nQ So what movement did you make? \n \nA You  pick  them  up,  raise  them  above  your  head,  slightly \nturn and set them down. \n \nQ And  were  these  coils  on  some  kind  of  a  tray  or  a  crate  or \nsomething when you pick them up? \n \nA A  table  like  you  are  sitting  in  front  of.  There  was  a  table \nthere, a table to the left, and a table behind. \n \nQ So there is a table – \n \nA To the left. \n \nQ --   that   is   roughly   about   like   four   feet   by   three   feet, \nsomething like that, five feet? \n \nA Yes, sir. \n \nQ And what kind of container were the coils in? \n \nA They were just laying on top of the table. \n \nQ Okay. \n \nA They  just  sat  on  the  table.  You  hooked  them  up  with \nelectrical, electrodes,  and then you would pick them up and move \nthem to the tables. \n \nQ So  you  said  you  were  moving  four.  How  did  you  pick  up \nfour coils? \n \nA I grab them with my hand and pick them up and go like this \nbehind  me  (indicating),  and  they  were  40  pounds  and  they  went \nover.  And  that  is  how  I  got  hurt.  It  popped  my  neck  and  my \nshoulder. \n \nQ And when you picked them up and moved them, what kind \nof motion did you make? Did your chair rotate? \n \nA Yes. Like I am sitting in now, I pick them up. I slightly turn \nto put them behind me (indicating). \n \nQ Now,  you  are  showing  us  a  reaching  motion  across  your \nbody? \n\nParker – H003228 \n \n-5- \n \nA Yes. You pick them up and over. \n \nQ So  you  had  your  hands  in  front  of  you.  You  picked  them \nup. \n \nA Pick them up. \n \nQ You swivel slightly. \n \nA And then you go over. \n \nQ Is that a motion in your shoulder? \n \nA To the table behind you, yes. \n \nQ So  you  picked  the  coils  up,  you  would  move  them  across \nyour body, and reach and set them on the table behind you? \n \nA Yes, sir. \n \n The  claimant  currently  alleges  that  she  also  sustained  a  compensable  neck  injury  at  the \ntime of her admittedly compensable right shoulder injury. The claimant gave direct examination \ntestimony about how she alleges her neck injury to have occurred as follows: \nQ Describe what happened. \n \nA I  reached  the  coils –  the  four  coils  in  front  were  ripe.  I \npicked  them  up.  I  slightly  turned.  I  went  to  put  them  over  behind \nme. They were heavier and they went past. They went past me and \npopped my shoulder and my neck (indicating). \n \nQ When  you  said  went  past  you,  you  are  showing  a  motion \nwhere you are reaching over your shoulder? \n \nA Yes. When I turned to put them on the table, they just kept \ngoing. \n \nQ What happened next? \n \nA I  got  ahold  of  my  supervisor.  He  came  over.  I  got  an  ice \npack. I got medicine. \n \nQ Let me back up just a little bit. \n\nParker – H003228 \n \n-6- \n \n When you put these particular coils over on this table, what \nsensations did you have? \n \nA I  had  a  burning,  a  numbing,  and  a  radiating  pain  down  to \nmy fingers. \n \nQ Did you hear any popping or cracking? \n \nA The pop of my neck and my shoulder, yes, sir. \n \nQ What physical sensations did you have at that time? \n \nA Like I said, there was a burning. There was a numbing. The \nradiating  pain  that  went  down  my  hand  from  my  elbow  to  my \nfingers. I had sharp, stabbing pains that would shoot from my neck \ndown to my shoulder to my elbow, just all the way down. \n \nQ What did you do after that? \n \nA I got ahold of my supervisor. \n \n It  was  the  claimant’s  testimony  that  she  was  provided  an  ice  pack  and  moved  to  a \nposition where she did not have to move or lift the electrical coils, only test them. The claimant \ndid not seek or request any medical treatment at that time. In fact, the claimant continued to work \nfor the respondent.  \n The  claimant  first  sought  medical  treatment  on  May  12,  2020,  some  223  days  after  the \nincident  she  described  in  direct  testimony.  The  claimant  was  seen  at  Mena  Regional  Health \nSystem by APRN Stacy Scott at that time. Following is a portion of that medical record: \nHPI: \nNew/Follow-up Patient Consult: \nJoint pain \nThe  joint  pain  Since  last  October.  Pt  was  at  work  and  lifted  coils \nthat was heavy and has had problems since. Pain getting worse. \nThe severity of the joint pain is variable \nThe character of the pain is sharp \nAggravating  factors  include  increased  exertion,  overuse,  recent \ninjury \nAlleviating factors include aleve, ibuprofen \n\nParker – H003228 \n \n-7- \nAssociated factors include joint pain, joint stiffness, muscle pain \n \nPt states she recalls moving a heavy coil on October 2\nnd\n and feeling \nimmediate  pain  in  her  right  shoulder.  She  states  it  has  hurt  since \nthat  time.  She  has  not  seen  anyone  for  this  injury.  She  states  she \nwas  off  work  for  2  weeks  due  to  COVID-19  precautions  and  she \ndidn’t have any shoulder pain during that time. Now that she has \nreturned to work, the pain has returned and is worsening. \n \nThe claimant was assessed with acute pain of the right shoulder and prescribed Meloxicam. \nThere  is  no  mention  in  the  medical  record  of  the  claimant’s  allegation  or  complaints  of  neck \ndifficulties. \n The  claimant  continued  to  treat  for  her  admittedly  compensable  right  shoulder  injury \nwithout mention of her alleged neck injury. On May 27, 2020, the claimant underwent an MRI of \nthe right shoulder. Following is a portion of that diagnostic report: \nIMPRESSION: \n1. Acromioclavicular joint degenerative joint disease as above with \nintraarticular  and  periarticular  inflammatory  changes  as  well  as \nsubarticular bone marrow edema. \n2.   Inferior   prominence   of   the   acromioclavicular   joint   which \ndeforms  the  superior  contour  of  the  distal  supraspinatus  tendon. \nCorrelate for possible impingement symptoms. \n \n After the claimant’s MRI of the right shoulder, she began to treat with Dr. Carl Cordell at \nCHI  St.  Vincent’s  in  Hot  Springs  on  June  11,  2020.  Following  is  a  portion  of  the  claimant’s \nmedical record from her June 11, 2020, visit: \nChief Complaint: \nPatient presents with \nShoulder pain – right \n \nHistory  of  Present  Illness:  Kimberly  F.  Parker  is  a  48  y.o.  right \nhand  dominant  female  here  for  evaluation  of  her  right  shoulder \npain.  The  patient  reports  pain  in  the  right  shoulder  for  9  months. \nThis  was  the  result  of  an  injury.  The  date  of  injury  was  10-2-19 \nwhile  lifting  coils  at  work  and  felt  shoulder  pop.  She  works  at \nNIDEC. The patient has not had previous surgery on the shoulder. \nThe pain is in the superior, anterior, lateral and posterior aspect of \n\nParker – H003228 \n \n-8- \nthe   shoulder.   The   patient   reports   pain   at   night.   The   pain   is \ndescribed  as  constant,  sharp,  aching,  stabbing  and  throbbing.  The \nintensity is 10/10. The patient does have weakness. The patient has \nswelling,  popping,  catching,  stiffness  and  instability.  The  patient \nhas not had physical therapy. The patient has taken medication for \nthe shoulder; ibuprofen, Mobic and Norco. The patient has not had \na steroid injection into the shoulder. The patient reports neck pain. \nThe  patient  reports  numbness  in  the  upper  extremity;  it  is  in  the \nright hand. The patient has had an MRI of the shoulder. The patient \ndoes have pain with ADLs. Pain is increased or provoked by using \narm. Pain is alleviated by not using arm. She is wearing a sling. \n \n*** \nNeck: Normal appearance/symmetry. \nCervical motion normal. \nSpurling’s test negative. \n \nFrom that record it is clear the claimant told Dr. Cordell about the incident on October 2, 2019, \nwhere  she “felt  shoulder  pop.”  There  is  only  silence  in  the  record  regarding  the  neck  pop  she \ntestified to have also occurred at the hearing in this matter.  \n The  claimant  continued  to  treat  conservatively  for  her  right  shoulder  with  Dr.  Cordell \nuntil  September  30,  2020,  when  she  underwent  surgical  intervention.  Following  is  a  portion  of \nDr. Cordell’s operative report: \nPre-operative Diagnosis: \n1. Right shoulder pain \n2. Right partial rotator cuff tear \n3. Right impingement syndrome \n4. Right RTC syndrome \n \nPost-operative Diagnosis: \n1. Right shoulder pain \n2. Right small partial rotator cuff tear \n3. Right impingement syndrome \n4. Right RTC tendinosis \n5. Right degenerative labral tear \n \nProcedure Performed: \n1. Right arthroscopic sub-acromial decompression \n2. Right debridement of the glenohumeral joint, extensive \n \n\nParker – H003228 \n \n-9- \n On  February  23,  2021,  the  claimant  had  her  final  postoperative  visit  with  Dr.  Cordell. \nFollowing is a portion of that medical record: \nCHIEF  COMPLAINT:  The  patient  is  here  for  the  final  post-op \nvisit  after  a  right  SAD  and  debridement.  The  date  of  surgery  was \n9-30-2020. \n \nSUBJECTIVE: Kimberly F. Parker is here for a final postoperative \nvisit  for  a  right  SAD  and  debridement.  The  patient  has  pain \nposteriorly  and  around  the  scapula.  The  patient  has  completed \nphase  III therapy. She has intermittent pain. This is medial border \nof scapula. \n \n*** \nASSESSMENT: \n1. Right shoulder pain \n2. Right small partial rotator cuff tear \n3. Right impingement syndrome \n4. Right RTC tendinosis \n5. Right degenerative labral tear \n \nTREATMENT   AND   PLAN:   The   patient   will   continue   home \nstrengthening  exercises.  Her  scapular  pain  may  be  related  to  c \nspine  pathology.  If  she  has  any  problems  or  concerns  with  her \nshoulder, she may return. She is at MMI with no impairment. \n \n On  March  3,  2021,  the  claimant  is  seen  by  APRN  Lori  Fortner  at  Mena  Medical \nAssociates. Following is a portion of that medical record: \nHistory of Present Illness \nNew/Follow-up Patient Consult: \nJoint pain \nThe joint pain October 2019 \nThe  joint  pain  is  located  in  the  right  side  of  the  neck,  in  the  right \nshoulder \nThe severity of the joint pain is severe \nThe character of the pain is sharp and numbness sensation \nAggravating  factors  include  increased  exertion,  overuse,  recent \ninjury recent surgery \nAlleviating factors include None \nAssociated factors include joint pain, joint stiffness, muscle pain \nMedication(s) for joint pain include narco Meloxicam, Oxycodone \nOverall condition is worsening \nWhere did injury occur work \n\nParker – H003228 \n \n-10- \n \nMs.  Parker  is  here  today  for  a  f/u  on  right  shoulder  pain.  She \ninitially  hurt  her  right  shoulder  at  work  by  trying  to  move  a  coil. \nShe was given Hydrocodone and Meloxicam for the pain. She was \nreferred  to  Dr.  Cordell  and  was  given  Oxycodone  10-325  #60  for \n15  days  and  was  last  filled  10/01/2020.  Hydrocodone  was  last \nfilled  05/28/2020  and  was  given  #28  for  7  days.  Ms.  Parker  had \nsurgery on the right shoulder on 09/2020 and was told that the pain \nmight be more in the neck that is radiating down into the shoulder. \nShe  went  to  PT  and  was  told  that  it  would  take  time  but  she  had \nnot had any improvement. \n \n*** \nAssessments \n1. Acute pain of right shoulder – M25.511 (Primary) \n2. Cervical pain (neck) – M54.2 \n3. Radicular pain in right arm – M79.2 \n \nTreatment \n1. Acute pain of right shoulder \nStart Meloxicam Tablet, 15 MG, Orally, Once a day, 30 day(s), 30, \nRefills 5 \nStart  Hydrocodone-Acetaminophen  Tablet,  7.5-325  MG,  1  tablet \nas needed, Orally, every 6 hrs prn severe pain, 7 days, 28 Tablets, \nRefills 0 \nStart Gabapentin Capsule, 100 MG, 1 capsule, Orally, Once a day, \n30 day(s), 90, Refills 5 \nIMAGING: MRI SHOULDER RIGHT \nNotes: \npmp reviewed \ner/urgent care prn \nfailure  to  improve  with  trigger  point  injection,  shoulder  surgery, \nnsaids, and physical therapy \nrecommend further radiographic diagnostics \nconsider EMG/NCS for nerve symptoms \nrtc in 2 weeks or sooner prn new/worsening symptoms \n \n2. Cervical pain (neck) \nIMAGING: SPINE/CERVICAL W FEX/EXT \nIMAGING: SPINE/CERVICAL AP & LAT \n \nThere is mention of neck pain in this medical report. However, the record still fails to reflect the \npop associated with her neck the claimant claims to have occurred on October 2, 2019. Just a few \ndays prior to the claimant’s March 3, 2021, visit  with APRN Fortner, the  claimant completed a \n\nParker – H003228 \n \n-11- \nForm  AR-N,  which  is  found  at  Respondent’s  Exhibit  2,  page  1.  That  AR-N  is  signed  by  the \nclaimant  and  dated  February  26,  2021.  That  form  only  indicates  a  right  shoulder  injury  on \nOctober  2,  2019.  This  form,  filled  out  and  signed  by  the  claimant  513  days  removed  from  her \nalleged neck injury, does not include any reference to claimant’s neck. \n On March 22, 2021, the claimant underwent a second MRI of the right shoulder at Mena \nRegional Health Systems. Following is a portion of that diagnostic report: \nIMPRESSION: \n1.    Acromioclavicular    joint    degenerative    joint    disease    with \nintraarticular inflammatory changes. \n2. Evidence of bursitis. \n \n The claimant saw Dr. Timothy Garlow at Mercy Clinic Orthopedic in Fort Smith on May \n10, 2021. Following is a portion of that clinic note: \nHISTORY  OF  PRESENT  ILLNESS:  The  patient  is  a  49-year-old \nfemale,  in  to  see  me  today  for  her  right  shoulder.  There  had  been \nan injury at work, for which she was treated by  Carl Cordell, MD \nin  Hot  Springs.  She  reports  that  she  failed  physical  therapy,  she \nfailed  injections.  She  had  an  MRI  showing  just  AC  joint  changes. \nShe  underwent  an  arthroscopic  procedure.  I  do  not  have  the  op \nnote,  though  it  sounds  like  she  had  a  SAD  and  a  DCR.  She  says \nsince that time, her motions maybe gotten better, though her pain is \nreally  the  same.  She  reports  a  lot  of  pain  into  the  trapezlua \nmuscuiature  in  between  the  shoulder  blades.  She  has  periodic \nnumbness  and  tingling  down  the  arm.  She  says  that  she  has \nnumbness  across  where  her  bra  strap  should  be  in  the  back.  She \nhas had an MRI after her surgery. \n \nThe  patient’s  past  medical,  surgical  history,  as  well  as  current \nmedications,  allergies,  family  history,  social  history,  review  of \nsystems, all reviewed and up-to-date in the patient questionnaire. \n \n*** \nASSESSMENT  AND  PLAN:  A  49-year-old  female,  failed  right \nshoulder  treatments  including  surgery,  injections,  therapy,  and \nanti-inflammatories. I think a lot of this is periscapular pain related \nto  her  underlying  cervical  issues.  We  are  going  to  work  this  up \nwith an MRI of her neck. I am going to start her on some physical \ntherapy  for  her  neck  as  well.  There  is  a  component  of  this,  has \n\nParker – H003228 \n \n-12- \nsome bursitis type symptoms. We are going to try an injection into \nthe shoulder. She consents to this under sterile conditions that right \nshoulder  injected  with  3  mL  of  lidocaine  and  10  mg  of  Kenalog \nand she tolerated that well. We will see her back. \n \n The claimant was again seen by Dr. Garlow on January 16, 2023. Following is a portion \nof that medical report: \nHISTORY  OF  PRESENT  ILLNESS:  Ms.  Parker  is  a  patient, \nwhom  I  have  not  seen  since  May  of  2021.  She  had  an  injury  at \nwork,  treated  in  Hot  Springs  with  Dr.  Carl  Cordell.  She  had  a \nscope procedure, sounds like this is a SAD and DCR. When I saw \nher  in  clinic,  I  had  seen  that  she  is  having  a  lot  of  cervical-type \nissues. We had tried to get an MRI of her neck, at that time we can \nget  her  started  on  some  therapy,  though  she  says  because  of  work \ncomp issues none of that ever happened. She is still having quite a \nbit of pain. Let us see what else can be done. \n \n*** \nIMAGING:  Updated  x-rays  of  the  cervical  spine  obtained  and \nreviewed  today.  She  has  phyte  formation  around  C5-C6  and  even \nsome  calcifications,  that  look  like  immature  bridging  osteophyte \nthere. I do not appreciate any fractures, acute or remote. No lesions \nin the soft tissue or bone. \n \nASSESSMENT   AND   PLAN:   A   50-year-old   female,   chronic \ncervical  pain  with  radiculopathy.  I  discussed  all  this  with  her  as \nwell  as  treatment  options.  I  think  she  would  benefit  from  some \nphysical  therapy  on  the  neck.  I  think  that  given  the  chronicity  of \nher  symptoms  now  the  development  of  radicular-type  symptoms \nthat  an  MRI  of  the  cervical  spine  also  makes  sense.  I  discussed \nwith her that ultimately I am not a spine surgeon, we may have to \nhand her off to somebody who handles neck injuries. \n \n On  February  3,  2023,  the  claimant  underwent  an  MRI  of  the  cervical  spine  at  Mercy \nHospital  Fort  Smith.  Following  is  a  portion  of  that  diagnostic  report  authored  by  Dr.  David \nDiment: \nIMPRESSION: \nMultilevel  mild  degenerative  change  as  above  with  small  left \nlateral  disc  protrusion  C5-6  with  left  foraminal  stenosis,  some \nposterior  lateral  uncinate  spurring  and  bulge  or  small  protrusions \n\nParker – H003228 \n \n-13- \nC6-7 slightly more then left with some foraminal stenosis more on \nthe left. No large disc herniation or canal stenosis. \n \n It is the claimant’s burden to prove that she sustained a compensable injury to her neck or \ncervical  spine  on  or  about  October  2,  2019.  The  claimant  can  establish  objective  medical \nfindings of derangement in her cervical spine through her February 3, 2023, cervical spine MRI. \nHowever,  the  claimant  must  also  prove  a  causal  connection  between  those  objective  medical \nfindings  and  the  October  2,  2019,  incident  when  she  alleges  her  neck “pop.”  The  claimant \ntestified  that  she  told  medical  providers  about  her  neck  difficulties  and  there  are  some  minimal \nmentions of neck pain, but as late as February 26, 2021, when the claimant completed and signed \na  Form  AR-N,  she  only  alleged  a  right  shoulder  injury.  The  remoteness  in  time  some  513  days \nafter  her  alleged  injury  and  still  the  claimant  does  not  claim  a  neck  injury  on  an “Employee \nNotice of Injury” form is remarkable. The claimant’s medical records never once make mention \nof the pop in her neck she testified at the hearing to have experienced on  October 2, 2019, even \nthough  medical  records  do  reference  the  pop  in  her  right  shoulder  on  October  2,  2019.  The \nclaimant  is  unable  to  prove  a  causal  connection  between  her  alleged  October  2,  2019,  neck \nincident and her objective findings of derangement in her cervical spine. As such, the claimant is \nunable to prove that she sustained a compensable neck injury on or about October 2, 2019. \n The  claimant  has  asked  the  Commission  to  determine  if  she  is  entitled  to  medical \ntreatment  for  her  neck.  As  the  claimant  has  failed  to  prove  her  neck  injury  compensable,  the \nclaimant is not entitled to medical treatment regarding her neck. \n The  claimant  has  asked  the  Commission  to  determine  if  she  is  entitled  to  additional \nmedical treatment for her compensable right shoulder injury. The  claimant last saw Dr.  Garlow \non  January  16,  2023.  At  that  time,  Dr.  Garlow  did  not  recommend  any  treatment  for  the \nclaimant’s right shoulder, but instead, he directed treatment for her neck. As Dr. Garlow did not \n\nParker – H003228 \n \n-14- \nrecommend any right shoulder treatment, the claimant is unable to prove her entitlement to any \nadditional right shoulder treatment. \n The  claimant  has  asked  the  Commission  to  determine  whether  she  is  entitled  to \nreimbursement  for  out-of-pocket  medical  expenses  regarding  her  neck  and  right  shoulder \ninjuries.  The  claimant  has  failed  to  prove  her  neck  injury  compensable.  As  such,  she  is  not \nentitled  to  any  medical  expenses.  It  appears  that  Dr.  Garlow’s  treatment  was  in  regard  to  the \nclaimant’s  neck,  not  particularly  her  right  shoulder.  It  is  the  claimant’s  burden  to  prove  her \nentitlement  to  any  reimbursement  for  medical  expenses  and  she  has  failed  to  do  so.  The \nclaimant’s last visit with Dr. Garlow recommended no treatment for her right shoulder, only her \nneck. \n The claimant has asked the Commission to determine if she is entitled to temporary total \ndisability benefits from March 3, 2021, to a date yet to be determined. On March 3, 2021, APRN \nFortner, who is not a medical doctor as  set out in the claimant’s contentions and testimony, did \nremove  the  claimant  from  full  duty  by  restricting  use  of  the  claimant’s  right  arm.  In  that \nrestricted  duty  note,  found  at  Claimant’s  Exhibit  1,  page  52,  under  the  Diagnosis  section,  it \nstates:  \nRight  shoulder  pain/radicular  pain  RUE  neck  vs  shoulder  pending \nreview  of  neck  x-ray  and  shoulder  MRI  to  determine  further \nlimitations. \n \nThe  claimant  then  had  a  right  shoulder  MRI  on  March  22,  2021,  of  which  the  results  did  not \nshow  the  claimant  to  have  reentered  a  healing  period  from  her  release  by  Dr.  Cordell  on \nFebruary  23,  2021.  In  fact,  treatment  then  begins  to  move to  the  claimant’s  neck,  which  she \nfailed  to  prove  to  be  compensable.  In  Dr.  Garlow’s  last  visit  with  the  claimant  on  January  16, \n2023,  he  does  not  recommend  any  treatment  for  the  claimant’s  compensable  right  shoulder \n\nParker – H003228 \n \n-15- \ninjury.  Instead,  he  recommends  treatment  for  the  claimant’s  neck  difficulties.  The  claimant  is \nunable  to  prove  her  entitlement  to  temporary  total  disability  benefits  from  March  3,  2021,  to  a \ndate  yet  to  be  determined,  as  the  claimant  was  not  in,  nor  did  she  reenter  her  healing  period  in \nregards to her compensable right shoulder injury. \n The  claimant  has  asked  the  Commission  to  determine  if  her  attorney  is  entitled  to  an \nattorney’s  fee  in  this  matter.  As  the  claimant  has  not  proven  her  entitlement  to  any  indemnity \nbenefits, the claimant’s attorney is not entitled to any attorney fee. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nMay  8,  2023,  and  contained  in  a  Pre-hearing  Order  filed  May  9,  2023,  are  hereby  accepted  as \nfact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \na compensable injury to her neck on or about October 2, 2019. \n 3. The claimant has failed to prove by a preponderance of the evidence her entitlement to \nmedical treatment for her alleged neck injury. \n 4. The claimant has failed to prove her entitlement to additional medical treatment for her \ncompensable right shoulder injury. \n\nParker – H003228 \n \n-16- \n 5.  The  claimant  has  failed  to  prove  her  entitlement to  reimbursement  for  out-of-pocket \nmedical  expenses  regarding  both  her  alleged  neck  injury  and  her  admittedly  compensable  right \nshoulder injury. \n 6. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits from March 3, 2021, to a date yet to be determined. \n 7. The claimant has failed to prove by a preponderance of the evidence that her attorney \nis entitled to an attorney’s fee. \n ORDER \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIT IS SO ORDERED. \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":29997,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H003228 KIMBERLY PARKER, Employee CLAIMANT NIDEC MOTOR CORP., Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED NOVEMBER 7, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Cla...","outcome":"denied","outcomeKeywords":["granted:2","denied:6"],"injuryKeywords":["shoulder","neck","cervical","back","rotator cuff"],"fetchedAt":"2026-05-19T23:00:12.909Z"},{"id":"alj-H001670-2023-11-07","awccNumber":"H001670","decisionDate":"2023-11-07","decisionYear":2023,"opinionType":"alj","claimantName":"Ashley Perryman","employerName":null,"title":"PERRYMAN VS.ARKANSAS DEPT. OF VETERANS AFFAIRS AWCC# H001670 & H010040 NOVEMBER 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PERRYMAN_ASHLEY_H001670_H010040_20231107.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PERRYMAN_ASHLEY_H001670_H010040_20231107.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H 001670 & H 010040 \nASHLEY PERRYMAN, EMPLOYEE      CLAIMANT \n \nARKANSAS DEPT. OF VETERANS AFFAIRS,  \nEMPLOYER           RESPONDENT  \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/TPA        RESPONDENT  \n  \nOPINION FILED NOVEMBER 7\nth\n, 2023 \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, \nArkansas, on November 7, 2023. \nClaimant is represented by George Bailey of Little Rock, Arkansas. \nRespondents are represented by Charles McLemore of Little Rock, Arkansas. \nSTATEMENT OF THE CASE \n A hearing was held in the above styled matter on November 7, 2023, in Little \nRock, Arkansas, on respondent’s Motion to Dismiss for failure to prosecute.  The \nclaimant had waived her right to a hearing in regard to the Motion to Dismiss and had \nsigned and approved an Order to Dismiss her claims without prejudice. The orders were \nalso approved by her attorney but had not been returned to the Commission at the time \nof the hearing. George Bailey, the attorney for the claimant, appeared on her behalf and \nstated that he had been given permission by the claimant to dismiss the claims without \nprejudice.  Charles McLemore appeared on behalf of the respondents in regard to the \nMotion to Dismiss.  Based upon the statements of the attorneys, it appears that the \nparties are in agreement the above styled claim should be dismissed without prejudice.    \nThe hearing was held on November 7\nth, \nafter proper notice.  After a review of the \nrecord as a whole to include all evidence properly before the Commission and having \nhad an opportunity to hear the statements of the both the claimant’s and respondent’s \n\nPERRYMAN – H001670 & H010040 \n \n2 \n \nattorney, the Motion to Dismiss is granted at this time, without prejudice, pursuant to \nA.C.A. 11-9-702 (a) (4) and 11- 9- 702 (d). \nORDER \n Pursuant to the above, the Motion to Dismiss is granted without prejudice in \nregard to the above styled claims.   \nIT IS SO ORDERED: \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2103,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H 001670 & H 010040 ASHLEY PERRYMAN, EMPLOYEE CLAIMANT ARKANSAS DEPT. OF VETERANS AFFAIRS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED NOVEMBER 7 th , 2023 Hearing before Administrative Law Judge James D. Kenned...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:14.973Z"},{"id":"alj-H205106-2023-11-06","awccNumber":"H205106","decisionDate":"2023-11-06","decisionYear":2023,"opinionType":"alj","claimantName":"Juan Acevedo","employerName":"Portillos Constr., Inc","title":"ACEVEDO VS. PORTILLOS CONSTR., INC. AWCC# H205106 NOVEMBER 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//ACEVEDO_JUAN_H205106_20231106.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ACEVEDO_JUAN_H205106_20231106.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205106 \n \nJUAN D. RUIZ ACEVEDO, \nEMPLOYEE                                                       CLAIMANT \n \nPORTILLOS CONSTR., INC., \nEMPLOYER                                                    RESPONDENT \n \nOHIO SECURITY INS. CO./ \nLIBERTY MUTUAL INS. GRP., \nINSURANCE CARRIER/TPA                                                                          RESPONDENT   \n \n \nOPINION AND ORDER FILED NOVEMBER 6, 2023 \n \nSingle issue presented for decision based on the parties’ written briefs and designated record before \nthe Arkansas Workers’ Compensation Commission (the Commission), Administrative Law Judge \nMike Pickens, submitted on August 21, 2023. \n \nThe claimant is represented by the Honorable Mark Alan Peoples, Peoples Law Firm, Little Rock, \nPulaski County, Arkansas.   \n \nThe  respondents  are  represented  by  the  Honorable  Zachary  Ryburn,  Ryburn  Law  Firm,  Little \nRock, Pulaski County, Arkansas.   \n \nINTRODUCTION \n In lieu of a hearing and pursuant to the parties’ mutual agreement made during the course \nof the aforementioned prehearing teleconference memorialized in the Amended Prehearing Order \nfiled  July  21,  2023,  the  parties  waive  their  right  to  a  hearing  on  the  subject  issues.  Instead,  the \nparties’ have agreed the ALJ may render an opinion and order based on the record designated by \nand agreed to by the parties as set forth below. \nPursuant to the Prehearing Order filed July 21, 2023, the parties have agreed to the \nfollowing relevant stipulations: \n1. The   Arkansas   Workers’   Compensation   Commission   (the   Commission)   has \njurisdiction over this claim and the issue herein – specifically, enforcement of the \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n2 \nJoint Petition Order (JP Order) filed June 2, 2023. \n \n2. Both the claimant and respondents waive their right to a hearing on this issue. In \nlieu of a hearing, and pursuant to the parties’ mutual agreement, they will submit \nthis matter to be decided based on their respective briefs and the record as described \nabove. \n \n3. The JP Order was approved and filed with the Commission on June 2, 2023. As of \nthe date of the parties’ July 19, 2023, prehearing telephone conference – some 47 \ndays  after  approval  and  filing  of  the  June  2,  2023,  Joint  Petition  Order –  the \nclaimant  still  had  not  received  the  $5,000.00  settlement  check  awarded  in  the \nsubject order. \n \n(Commission Exhibit 1 at 2). Again, pursuant to the parties’ mutual agreement the sole issue to \nbe litigated based on the parties’ blue-backed briefs and designated and mutually agreed record \nis: \n 1. Whether, and if so to what extent, the respondents are subject to a late payment   \n  penalty based on the amount of the sum approved and awarded to the claimant in   \n  the Joint Petition Order approved and filed June 2, 2023. \n \n(Comms’n Ex. 1 at 2).   \nThe claimant contends he is entitled to a late payment penalty pursuant to Ark. Code Ann. \n§ 11-9-802 (2023 Lexis Replacement) based on the total amount of his joint petition settlement \naward of $5,000.00. (Comms’n Ex. 1 at 2). \n The  respondents  contend  they  are  not  subject  to  the  payment  of  any  such  late  payment \npenalty. Moreover, the respondents contend the claimant should be held in contempt for filing a \nfrivolous  motion  and,  therefore,  the  claimant  should  be  deemed  liable  for  payment  of  their \nattorney’s fees and costs in responding to the motion. (Comms’n Ex. 1 at 3). \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n3 \n \n The record herein consists of the blue-backed documents attached hereto as Commission \nExhibit 1 (the Amended Prehearing Order Filed July 21, 2023); Joint Exhibit 1, pages 1-57; Joint \nExhibit 2, pages 1-17; the parties’ respective blue-backed briefs; any and all other relevant, agreed \ndocuments, if any, they may have attached to their respective briefs; as well as the Commission’s \nentire file by reference including but not limited to the digital recording of the June 2, 2023, JP \nhearing. \nSTATEMENT OF THE CASE \n The relevant facts of this case are not in dispute. The issue to be decided is a matter of law, \nas  stated supra:  Whether,  and  if  so,  to  what  extent,  if  any,  the  respondents  are  subject  to  a  late \npayment penalty pursuant to Ark. Code Ann. Section 11-9-802 (2023 Lexis Repl.) related a joint \npetition settlement hearing (JP hearing) that was held on June 2, 2023. A prehearing order filed \nMarch 17, 2023, scheduled a hearing on the merits for Friday, June 2, 2023. The parties settled the \nclaim before the hearing date, and the claimant requested the June 2, 2023, hearing date and time \nbe used for the JP hearing. The respondents agreed to this request, as did the ALJ.   \n      The claimant knew the respondents would not and did not have the two (2) settlement checks \nin their possession at the hearing, but had previously agreed this was acceptable and he wished to \nproceed  with the JP hearing with the understanding he would receive his settlement check after \nthe JP hearing. The ALJ found the settlement was in the both the claimant’s and respondents’ best \ninterests, approved the settlement, and signed and filed the JP Order dated June 2, 2023. \n On June 16, 2023 – 15 days after the date the JP Order was signed (which was on a Friday) \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n4 \n–  the  respondents  delivered  the  $5,000  settlement  check  to  the  claimant.  The  check  was  made \npayable to both the claimant and his attorney. The claimant’s attorney advised the respondents’ \nattorney the claimant was unable to cash the check since it was made payable to both him and his \nattorney. Consequently, the claimant’s attorney requested  the  respondents  issue  a  second  check \nmade payable only to the claimant. It appears the claimant’s attorney made this request on June \n16, 2023. While the first settlement check could have been cashed soon after the claimant received \nit if both the claimant and his attorney signed it, the record is devoid of evidence demonstrating \nany effort  was  made  to  obtain  the  claimant’s  attorney’s(s’)   signature(s)   on   the   check. \nConsequently,  the  respondents  agreed  to  send  a  new  check  listing  only the claimant’s  name  as \npayee.  Of  course,  pursuant  to  the  terms  of  the JP  settlement  agreement, the claimant’s attorney \nreceived his fee via a separate check made payable solely to him. \n The  claimant  and/or  his  attorney  returned  the  first  settlement  check  to  the  respondent’s \nattorney, who received it and sent it back to Liberty Mutual, the respondent-carrier. Liberty Mutual   \nissued a stop payment on the first JP settlement check so a new, second check could be sent before \nthey –  Liberty  Mutual – actually  received  the  claimant’s  first,  returned  settlement  check, \npurportedly in an attempt to expedite the claimant’s receipt of the second check. The new/second \ncheck was mailed to the claimant’s attorney, returned to sender, and subsequently sent directly to \nthe claimant. The claimant received the second, newly-issued settlement check on or about July \n31, 2023, some 59 days after the date the JP order was signed and thereafter filed of record with \nthe Commission. \n     Finally, it should be noted – as the claimant’s attorney accurately explained in his brief – the \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n5 \nclaimant and his attorney made numerous efforts to obtain receipt of the second settlement check, \nand  exercised  a  demonstrable  degree  of  patience  before  the  claimant  finally  felt  compelled and \nbelieved  it  necessary  to  file  his  motion  for  a  late  payment  penalty  pursuant  to Ark.  Code  Ann. \nSection 11-9-802. \n      On June 15, 2023, claimant received a check in the mail from Liberty Mutual, however, \nthe  check  was  made  payable  to  “Mark  Peoples  PLC  and  Ruiz  Acevedo  Juan.”  The  claimant \nattempted  to  negotiate  the  check  without  success.  On  June  16,  2023,  the  claimant  informed  his \nattorney he had been unable to cash the JP settlement check. Immediately thereafter, on the same \nday the  claimant’s  attorney informed  the  respondents’ attorney of this  issue,  and  requested  the \nrespondents issue a new check to the claimant as soon as possible.   \nThereafter, on Thursday, June 22, 2023, the claimant’s attorney informed the respondents’ \nattorney the claimant still had not received his settlement check. On Monday, June 26, 2023, the \nclaimant’s  attorney  once  again informed  the  respondents’  attorney the  claimant  still  had  not \nreceived his check. On Wednesday, June 28, 2023, the claimant’s attorney once again informed \nthe respondents’ attorney the claimant still had not received his JP settlement check. At this time \nthe claimant’s attorney placed the respondents’ attorney on notice that if the check did not arrive \non or before close of business on Monday July 3, 2023, the claimant would seek a penalty for late \npayment pursuant to Ark. Code Ann. Section 11-9-802(c) (2023 Lexis Repl.). \n       In  an  email  dated  Friday,  July  7,  2023,  the  claimant’s  attorney  asked  the  respondents’ \nattorney for voluntary compliance: “Today marks 5 weeks since the JP hearing. Claimant has still \nnot been paid. Please ask Liberty to send him an additional $1,000 as late payment penalty. Let \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n6 \nme know by Wednesday whether they will agree to pay the penalty.  If they voluntarily agree to \npay penalty, I will forego any fee associated therewith.   If they do not agree,  I will move for a \n36%  penalty  for  willful  late  payment  and  an  associated  atty  fee. Thanks  much.” (Italics added; \nunderlining in original). In an email to the claimant’s attorney dated Monday, July 10, 2023, the \nrespondents’  attorney  advised  that  no  late  payment  penalty  was  applicable  to  the  alleged  late \npayment of a JP settlement check.   \n Consequently, since the claimant still had not received his JP settlement check, on July 10, \n2023,  the claimant’s  attorney  filed  a  motion  for  penalties  with  the  Commission,  requesting  the \nCommission issue an order requiring the respondents to pay claimant the sum of $6,800, which \nsum represents the $5,000 JP settlement amount, plus an additional $1,800, which the claimant’s \nattorney advised represented a 36% penalty based on Ark. Code Ann. Section 11-9-802(e) (2023 \nLexis  Repl.).  Alternatively,  the  claimant’s  attorney  requested  the  Commission  issue  an  order \nrequiring the respondents to pay the claimant an additional $1,000 as a 20% penalty pursuant to \nArk. Code Ann. Section11-9-802(c), as well as a maximum statutory attorney’s fee based on the \namount of any penalty awarded. Again, the claimant received the second settlement check on July \n31, 2023, some 59 days after the date the ALJ signed the JP Order on June 2, 2023. In response to \nthe claimant’s motion, the respondents filed  a motion for sanctions,  requesting the Commission \norder the claimant to pay their attorney’s fees and costs as they argued the claimant’s motion for a \nlate payment penalty on these facts was, “baseless and frivolous.”   \nDISCUSSION \n       While both claimant’s and respondents’ attorneys arguments were well and clearly made, \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n7 \nbased on the applicable law as applied to the facts of this case, I am compelled to find that both \nthe claimant’s and the respondents’ motions should be, and hereby are, denied for the following \nreasons.   \n       First, while Ark. Code Ann. Section 11-9-805 (2023 Lexis Repl.) does in fact characterize \nthe  Commission’s approval  of  either  a  partial  or  full  and  final  settlement  of  a  claim  to  be  an \n“award”  (see,  e.g.,  11-9-805  (a)(2)(A)  and  (B), et  seq.) Ark.  Code  Ann.  Section  11-9-802  is \nentitled, “INSTALLMENTS”, and all the provisions of Ark. Code Ann. Section 11-9-802 quite \nspecifically and clearly apply to the late payment of an, “installment of compensation.” See, Ark. \nCode Ann. Section 11-9-802(a), (b), and (c). All of these provisions specifically refer and apply \nto “installment” payments of compensation benefits, and not to a JP settlement “award” which is \nnot  made  in  installment  payments,  but  is  in  fact  and  of  course  made  in  a  lump  sum  payment. \nNowhere in Ark. Code Ann. Section 11-9-802 does there exist a penalty provision that purports to \napply  to  a  JP  settlement  agreement,  whether  the  JP  settlement  is  a  partial  settlement  of  all  but \nmedical benefits, or a full and final settlement of the entire claim, both including both medical and \nindemnity benefits.   \n       Second, as applicable in this case, pursuant to Ark. Code Ann. Section 11-9-805 (b)(1)(B): \n“After the Commission enters an order with regard to any full settlement, the commission does not \nhave jurisdiction over any claim for the same injury or any results arising from it. Ark. Code Ann. \nSection 11-9-805 does not contain any penalty for the late payment of a JP settlement award. While \nit is both egregious and unacceptable for it to take some 59 days for the respondents to deliver the \nclaimant’s settlement check to him, there exists no provision in the Act giving the Commission the \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n8 \nstatutory authority to levy a penalty against a respondent who fails to timely deliver a claimant’s \nsettlement check to him or her, much less a statute that provides the Commission with any guidance \nconcerning how any such penalty – if one did in fact exist – shall be determined. Moreover, if their \nexisted  any  case  law  providing  the  Commission  the  authority  to  levy  a  penalty  against  the \nrespondents on these facts, I am reasonably certain the claimant’s most capable and experienced \nattorney would not only be aware of it, but he would have cited it in his brief. Therefore, without \nany statutory or other mandatory authority allowing the Commission to levy a penalty in a case \nsuch as this one, it has no such authority. \n       Third, while it is well-settled the Commission retains jurisdiction to enforce the terms and \nprovisions of the JP settlement agreement to ensure – for example in a case like this one – that a \nclaimant receives his settlement check, in this case the claimant did receive his settlement check, \nalbeit  in  a  highly  untimely  manner.  Arguably,  if  there  were  a  provision  in  either  or  both  the  JP \nsettlement agreement and/or order specifically stating the respondents must deliver the claimant’s \nsettlement check to him on or before a date certain or they would be subject to some specifically \nagreed  penalty  (similar  to,  for  example,  a  liquidated  damages  provision  in  a  contract),  the \nCommission would in fact have the authority to enforce this JP settlement agreed penalty provision \njust  as  it  undoubtedly  now  has  to  enforce  any  and  all  of  the  terms  and  provisions  of  the  JP \nsettlement agreement. However, no such provision exists in this particular JP settlement agreement \nor  order,  nor  in  any  other  of  the  standard  JP  settlement  agreements  and  orders  which  the \nCommission approves and/or signs and files of record. It is unlikely either party would ever want \nto include such a provision, as such language would almost certainly prove to be a disincentive to \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n9 \na  JP  settlement  agreement  for  one  or  both  parties.  Therefore,  if  the  claimant  has  any  remedy \nwhatsoever under the Act on these facts, it does not and cannot arise out of any of the provisions \nof Ark. Code Ann. Section 11-9-802. \n Likewise, concerning the respondents’ motion for sanctions in the form of attorney’s fees \nand  costs  for  having  to  respond  to  the claimant’s motion,  I find the  respondents’ motion  to  be \nwithout  either  precedent,  or  merit.  It  is  somewhat  difficult  for  this  ALJ  to  understand  how  the \nrespondents’  can  reasonably  expect me  to  award  sanctions  against  either/or  a  claimant  or  his   \nattorney when both the claimant and his attorney in good faith agree to proceed with a JP settlement \nhearing with the undeniably reasonable expectation that both the claimant and his attorney would \nreceive their checks in a timely manner. Indeed, any reasonable claimant and his attorney would \nexpect the claimant would receive his settlement check soon after the signing, entry, and issuance \nof the JP Order. Most certainly a claimant should expect to receive his settlement check well before \n59 days after the signing, entry, and issuance of the subject JP Order.   \n       While the record does not contain specific facts as to why and how the first check apparently \ninaccurately listed the claimant’s name, and in addition listed his attorney’s name, as a payee on \nthe  first  check  issued  some  15  days  after  the  JP  Order  was  signed;  or  whether  the claimant’s \nattorney could simply have signed the check so a bank may have cashed it (but if the claimant’s \nname  was  incorrectly/inaccurately  listed  as  the  payee  on  the  check,  would  a,  or  any,  bank  cash \nsuch a check?), the record also is devoid of any evidence why it should take the respondents an \nadditional  44  some-odd  days –  almost  one  and  one-half  (1  ½)  months –  to  issue  and  deliver  a \nsecond settlement check to the claimant. Regardless of the reason(s), the evidence in the record \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n10 \ndoes not sufficiently explain why it took the respondents such a long time to get the claimant a \nsecond check that listed the correct payee, and accurately stated his name. Most respectfully, but \nalso most sincerely, rather than file a motion for sanctions against the claimant and/or his attorney \non  these  facts,  the  respondents  should  be  thankful  the  claimant  and  his  attorney  did  not  file  a \nmotion for contempt and/or sanctions against them. The respondents motion for sanctions in the \nform of attorney’s fees and costs is hereby respectfully denied on these facts or, more accurately \nstated, the lack of facts/evidence justifying the granting of such a motion.   \n       These and all other respondents may also want to consider that if a claimant cannot expect \nto receive a JP settlement check  before the expiration almost 60 days – some two (2) months – \nafter the date of the JP Order (and more likely than not long after the respondents have filed the \nnecessary form(s) with the Commission to close the claimant’s claim) both a claimant and/or his \nattorney may very well understandably be less willing to settle a case and proceed with a JP hearing \nwithout the respondents’  attorney  being  able  to  have  the  settlement  checks  in  hand  and  able  to \npresent  them  on  the  record  at  the  time  of  the  hearing.  And  this  could  result  in  the  delay  of  JP \nsettlement agreements and hearing dates, which would not be a good situation for either claimants \nor respondents.                       \n Therefore, for all the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. When the ALJ found the subject joint petition settlement agreement to be \nin the parties’ best interests; and the ALJ signed, and caused the JP Order \nto be entered of record, and issued, the Commission lost jurisdiction over \nall aspects of this claim except for its jurisdiction and ability to enforce \nthe  specific  terms  and  provisions  of  the  settlement  agreement.  There \nexists no evidence herein that either party failed to abide by the specific \n\nJuan D. Ruiz Acevedo, AWCC No. H205106 \n \n \n \n11 \nterms and provisions of the subject joint petition settlement agreement.   \n \n2. Ark.  Code  Ann.  Section  11-9-802  does  not  apply  to  the  alleged  late \npayment  of  an  award  made pursuant  to  the  ALJ’s  approval  of  a  joint \npetition settlement agreement. Consequently, the respondents cannot be \ndeemed liable for the alleged late payment of a joint petition settlement \naward pursuant to Ark. Code Ann. Section 11-9-802.   \n \n3. The  respondents  have  failed  to  meet  their  burden  of  proof  that  the \nclaimant and/or his attorney should be subject to sanctions in the form of \nattorney’s  fees  and  costs.  On  these facts,  I  cannot  find  the  claimant’s \nand/or his attorney’s motion to be either “baseless” or “frivolous”. \n   \n      \n     IT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":20853,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205106 JUAN D. RUIZ ACEVEDO, EMPLOYEE CLAIMANT PORTILLOS CONSTR., INC., EMPLOYER RESPONDENT OHIO SECURITY INS. CO./ LIBERTY MUTUAL INS. GRP., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED NOVEMBER 6, 2023 Single issue presented for decision base...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:00:10.723Z"},{"id":"alj-H204902-2023-11-02","awccNumber":"H204902","decisionDate":"2023-11-02","decisionYear":2023,"opinionType":"alj","claimantName":"Dustin Blocker","employerName":"Clay Cole Construction Corporation","title":"BLOCKER VS. CLAY COLE CONSTRUCTION CORPORATION AWCC# H204902 NOVEMBER 2, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BLOCKER_DUSTIN_H204902_20231102.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BLOCKER_DUSTIN_H204902_20231102.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H204902 \n \nDUSTIN L. BLOCKER, EMPLOYEE   CLAIMANT \n \nCLAY COLE CONSTRUCTION CORPORATION, EMPLOYER RESPONDENT \n \nSTATE AUTO INSURANCE COMPANIES/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED NOVEMBER 2, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope County, \nArkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by WILLIAM ROY SANDERS, Attorney, Little Rock, Arkansas. \n \nOPINION/ORDER \n \n On  August 26, 2022, claimant filed Form AR-C, alleging a compensable injury on June 29, \n2022. Claimant was represented at the time by Daniel E. Wren, who filed a Motion to Withdraw on \nJune 27, 2023 and was allowed to withdraw on July 7, 2023.  No other attorney entered an appearance \non claimant’s behalf.     \nOn September 1, 2023, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time. A hearing on  respondent’s Motion to Dismiss was scheduled for \nOctober 23, 2023.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address in the Commission’s file. The notice was delivered to that address on September 14, \n2023    Claimant did not respond to Respondent’s motion and did not appear in person at the hearing \non October 23, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nBlocker-H204902 \n \n2 \n \nhearing has been made in this file.  After my review of the Respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the Respondent’s motion, as well as all other matters \nproperly before the Commission, I find that Respondent’s Motion to Dismiss this claim should be \nand hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2214,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204902 DUSTIN L. BLOCKER, EMPLOYEE CLAIMANT CLAY COLE CONSTRUCTION CORPORATION, EMPLOYER RESPONDENT STATE AUTO INSURANCE COMPANIES/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED NOVEMBER 2, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in ...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:06.495Z"},{"id":"alj-H207488-2023-11-02","awccNumber":"H207488","decisionDate":"2023-11-02","decisionYear":2023,"opinionType":"alj","claimantName":"Jesse Boothe","employerName":"South Ark. Oil Co., Inc","title":"BOOTHE VS. SOUTH ARK. OIL CO., INC. AWCC# H207488 NOVEMBER 2, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BOOTHE_JESSE_H207488_20231102.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOOTHE_JESSE_H207488_20231102.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207488 \n \nJESSE E. BOOTHE, \nEMPLOYEE                                                                                                              CLAIMANT \n \nSOUTH ARK. OIL CO., INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nEMPLOYERS PREFERRED INS. CO./ \nEMPLOYERS PREFERRED INS. CO., \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER FILED NOVEMBER 2, 2023, \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \nHearing conducted on Wednesday, November 1, 2023, before the Arkansas Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, \nin Little Rock, Pulaski County, Arkansas. \n \nThe claimant, Ms. Jesse E. Boothe, pro se, of Magnolia, Columbia County, Arkansas, did not \nappear at the hearing. \n \nThe respondents were represented by the Honorable James A. Arnold II, of Ledbetter, Cogbill, \nArnold, Harrison, LLP, Fort Smith, Sebastian County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  conducted  on  Wednesday,  November  1,  2023,  to  determine  whether  this \nclaim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) \n(2023 Lexis Replacement) and Commission Rule 099.13 (2023 Lexis Repl.). \n The  respondents  filed  a  motion  to  dismiss  with  the  Commission  on  September  5,  2023, \nrequesting this claim be dismissed without prejudice for lack of prosecution. In accordance with \napplicable Arkansas law, the claimant was mailed due and proper legal notice of the respondents’ \nmotion to dismiss, as well as a copy of the hearing notice at her addresses of record via the United \nStates Postal Service (USPS), First Class Certified Mail, Return Receipt requested. Thereafter, the \nclaimant never responded to the subject motion to dismiss; she did not request a hearing, or contact \n\nJesse E. Boothe, AWCC No. H207488 \n2 \n \nand/or try to contact the Commission by any means of communication; nor did she appear or cause \nanyone to appear on her behalf at the subject hearing.  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and/or attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute her claim as required by the applicable statute and Commission rule.  \n Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law, \nrepresentations of the respondents’ highly credible counsel, and other relevant matters of record, I \nhereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1.   The Commission has jurisdiction of this claim. \n \n2.   After having received due and legal notice of the respondents’ motion to  \n   dismiss as well as due and legal notice of the subject hearing, the claimant \n      neither responded to the motion in any way whatsoever, nor did she cause \n      anyone to respond to the subject motion on her behalf. In addition, the \n      claimant did not appear at the hearing, nor did she cause anyone to appear \n      at the hearing on her behalf. Therefore, she has waived her right to a hearing \n      on the respondents’ motion to dismiss.  \n \n3.   Moreover, the claimant has failed to prosecute her claim in any way \n      whatsoever, as to date she has neither requested a hearing nor has \n      she taken any action(s) whatsoever to pursue and/or to prosecute her claim. \n   \n4.   Therefore, the respondents’ motion to dismiss without prejudice filed with \n \n\nJesse E. Boothe, AWCC No. H207488 \n3 \n \n the Commission on September 5, 2023, should be and hereby is GRANTED \n pursuant to both Ark. Code Ann. Section 11-9-702(a)(4) and Commission Rule \n 099.13 \n \n  Nothing in this opinion and order shall prevent or be construed to prevent the claimant or \nanyone acting with her authority and on her behalf from re-filing this claim so long as it is re-filed \nwithin the applicable deadlines specifically set forth in the Act. \n The  respondents  shall pay  the  court  reporter’s  invoice  within  twenty  (20)  days  of  their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5302,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207488 JESSE E. BOOTHE, EMPLOYEE CLAIMANT SOUTH ARK. OIL CO., INC., EMPLOYER RESPONDENT EMPLOYERS PREFERRED INS. CO./ EMPLOYERS PREFERRED INS. CO., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED NOVEMBER 2, 2023, GRANTING RESPONDENTS’ MOTION TO D...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:00:08.568Z"},{"id":"alj-H300839-2023-10-31","awccNumber":"H300839","decisionDate":"2023-10-31","decisionYear":2023,"opinionType":"alj","claimantName":"Heaven Alcorn","employerName":"City Of Jonesboro","title":"ALCORN VS. CITY OF JONESBORO AWCC# H300839 OCTOBER 31, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Alcorn_Heaven_H300839_20231031.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Alcorn_Heaven_H300839_20231031.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H300839 \n \nHEAVEN L. ALCORN, EMPLOYEE  CLAIMANT \n \nCITY OF JONESBORO, \nEMPLOYER                                                                                                RESPONDENT \n \nMUNICIPAL LEAGUE WC PROGRAM. \nINSURANCE COMPANY/TPA                                                                          RESPONDENT  \n \n \nOPINION FILED OCTOBER 31, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  October  27,  2023,  in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented herself Pro Se. \n \nThe  Respondents  were  represented  by  Ms.  Mary  K.  Edwards,  Attorney  at  Law,  North \nLittle Rock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents on August 11, 2023.  A hearing on the motion was conducted on October \n27, 2023, in Jonesboro, Arkansas. The Claimant herself was not present at the hearing. \nRespondents were represented at the hearing by Ms. Mary K. Edwards who argued the \nmotion.    In  addition  to  Respondent’s argument,  the  record  consists  of Respondent’s \nExhibit   1,   non-medical   documents,   and the   Commission’s   file–which   has   been \nincorporated herein in its entirety by reference. \n The evidence reflects that Claimant’s injury occurred on July 1, 2021, where she \ninjured herself while exercising. Claimant developed a hernia. This incident allegedly has \nsome connection to her employment. Since filing her Form C on February 7, 2023, this \ncase  has  been  inactive  until  Respondents  filed  a  Motion  to  Dismiss  due  to  the  lack  of \n\nALCORN H300839 \n \n \n2 \nprosecution.  A  hearing  was  held  on  October  27,  2023,  in  Jonesboro,  Arkansas  on  the \nMotion to Dismiss.  As previously stated, the Claimant was not present for the hearing. \nThe  Claimant  was  served  through  both  certified  and  first  class  mail. Commissions’  file \nshows that the first class letter was sent to Claimant’s last known address on  September \n19, 2023, and was not returned.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \n\nALCORN H300839 \n \n \n3 \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice for the Motion to  Dismiss hearing under Rule 13. I further find \nthat Claimant has abridged this rule. Thus, I find Respondent’s Motion should be granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4939,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300839 HEAVEN L. ALCORN, EMPLOYEE CLAIMANT CITY OF JONESBORO, EMPLOYER RESPONDENT MUNICIPAL LEAGUE WC PROGRAM. INSURANCE COMPANY/TPA RESPONDENT OPINION FILED OCTOBER 31, 2023 Hearing before Administrative Law Judge Steven Porch on October 27, 2023, in Jone...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:4"],"injuryKeywords":["hernia"],"fetchedAt":"2026-05-19T23:02:22.933Z"},{"id":"alj-H301443-2023-10-31","awccNumber":"H301443","decisionDate":"2023-10-31","decisionYear":2023,"opinionType":"alj","claimantName":"Adam Conrad","employerName":"M R Utilities Inc","title":"CONRAD VS. M R UTILITIES INC. AWCC# H301443 OCTOBER 31, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Conrad_Adam_H301443_20231031.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Conrad_Adam_H301443_20231031.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H301443 \n \n \nADAM J. CONRAD, EMPLOYEE  CLAIMANT \n \nM R UTILITIES INC., \nEMPLOYER                                                                                                RESPONDENT \n \nSTONETRUST COMMERCIAL \nINSURANCE  COMPANY, CARRIER/TPA            RESPONDENT  \n \n \nOPINION FILED OCTOBER 31, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  October  27,  2023,  in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented himself Pro Se. \n \nThe  Respondents  were  represented  by  Mr.  Zack  Ryburn, Attorney  at  Law,  Little  Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents on August 28, 2023.  A hearing on the motion was conducted on October \n27, 2023, in Jonesboro, Arkansas. The Claimant himself was not present at the hearing. \nRespondents  were  represented  at  the  hearing  by  Mr.  Zack  Ryburn  who  argued  the \nmotion.  In addition to Respondent’s argument, the record consists of the Commission’s \nfile–which has been incorporated herein in its entirety by reference. \n The evidence reflects that Claimant’s injury occurred on January 27, 2023, where \nhe allegedly injured himself while walking into his home. Claimant’s exact injury is unclear. \nThis incident allegedly has some connection to his employment. Since filing h is Form C \non February  28, 2023, this  case  has  been  inactive  until  Respondents  filed  a  Motion to \nDismiss due to the lack of prosecution. A hearing was held on October 27, 2023, in  \n\nCONRAD H301443 \n \n \n2 \n \nJonesboro, Arkansas on the Motion to Dismiss. As previously stated, the Claimant was \nnot present for the hearing. The Claimant was served through both certified and first class \nmail. Commissions’ file shows that the certified letter was signed for at the address of the \nClaimant on September 28, 2023.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \n\nCONRAD H301443 \n \n \n3 \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice for the Motion to  Dismiss hearing under Rule 13. I further find \nthat Claimant has abridged this rule. Thus, I find Respondent’s Motion should be granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4786,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301443 ADAM J. CONRAD, EMPLOYEE CLAIMANT M R UTILITIES INC., EMPLOYER RESPONDENT STONETRUST COMMERCIAL INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 31, 2023 Hearing before Administrative Law Judge Steven Porch on October 27, 2023, in Jon...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:02:24.995Z"},{"id":"alj-G708180-2023-10-27","awccNumber":"G708180","decisionDate":"2023-10-27","decisionYear":2023,"opinionType":"alj","claimantName":"Clint Vick","employerName":"Mcgehee Housing Authority","title":"VICK VS. McGEHEE HOUSING AUTHORITY AWCC# G708180 OCTOBER 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/VICK_CLINT_G708180_20231027.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"VICK_CLINT_G708180_20231027.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G708180 \n \nCLINT A. VICK, EMPLOYEE        CLAIMANT \n \nMcGEHEE HOUSING AUTHORITY, EMPLOYER             RESPONDENT No 1 \n \nAR MUNICIPAL LEAGUE-WCT, TPA                   RESPONDENT No 1 \n \nDEATH & PERMANENT TOTAL DISABILITY \nTRUST FUND                 RESPONDENT No 2  \n \n \nOPINION FILED 27 OCTOBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe on 27 April 2023 in McGehee, Desha County, Arkansas. \n \nMr. Daniel A. Webb, Attorney-at-Law, in Little Rock, Arkansas, appeared for the claimant. \n \nMs. Mary K. Edwards, Attorney-at-Law, in North Little Rock, Arkansas,  appeared for the \nrespondents #1. \n \nMs. Christy L. King, Attorney-at-Law, in Little Rock, Arkansas, appeared for respondent #2. \n \nI.  STATEMENT OF THE CASE \n \nThe  above-captioned case was  heard  on 27 April 2023 in McGehee,  Arkansas,  after \nthe  parties  participated  in  a  prehearing  telephone  conference  on 27 December 2022. A \nPrehearing Order, admitted to the record without objection as “Commission’s Exhibit No 1,” \nwas  entered  on 28 December 2022. The  Order  stated that the ISSUE  TO  BE  LITIGATED \nwas compensability. All other ISSUES were reserved. \nThe Prehearing Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed between the parties on 11 October \n2017, when the claimant was involved in a motor vehicle accident. \n \n\nC. VICK- G708180  \n2 \n \nThe following WITNESSES  testified at  the  hearing:  the  claimant  and  Mr.  James \nValentine, the claimant’s supervisor. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated by reference into the Prehearing Order and were as follows: \nThe  claimant  CONTENTDS that  he  suffered  compensable  injuries  on  11  October  2017 \nand that he is entitled to associated benefits.  \nRespondent No 1 CONTENDS that the claimant was not performing employment services \nat the time of the motor vehicle accident. Prior to the presentation of evidence at the hearing \non this matter, Respondent No 1 added that they contend, in the alternative, that the claimant \ncannot prove objective medical findings to support finding a compensable injury associated \nwith the October 2017 motor vehicle accident. \nRespondent No 2 CONTENDS that if the claimant is found to be permanently and totally \ndisabled, it will comply with ACA § 11-9-502. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law under \nACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The  claimant failed  to  establish  by  a  preponderance  of  the  evidence  that  he was \nperforming employment services at the time of the motor vehicle accident. \n \n3.  Accordingly, his claim is dismissed. \n \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE    \nA. Claimant on Direct Examination  \nMr.  Clint  Vick  testified  that  he  was  forty-two  years  old  and  that  he  had  lived  in \nMcGehee for his entire life. He worked for the McGehee Housing Authority (Respondent No \n\nC. VICK- G708180  \n3 \n \n1)  at  the  time  relevant  to  this  matter.  [TR  at  11.] The  claimant  worked  on-and-off  for  the \nrespondents prior to this incident. [TR at 12.\n1\n] He appeared to state that his primary role was \nreplacing subflooring at properties owned by the Housing Authority [TR at 13], but went on \nto say that he did “just any and all things possible that you – you could possibly imagine... \nand I would do some plumbing work, you know.” [TR at 14.]  \nIt is not disputed that the claimant left the job site on 11 October 2017 and was in an \naccident  on the roadway  near  the  job  site on the way  back. When pressed on the “point of \nleaving” that day, the claimant offered: \nA:    Because  they  don’t  have  tools.  They  don’t  have  tools.  It’s  an \nimpoverished part  of  our  community  and  everything  is  locked  up  and \nwhat’s locked up isn’t much, so I had—I have to bring my own tools to \nwork and – \n \nQ:  So what were you going to get when you left the job site? \n \nA:    I  was  going  to  get  my  plumbing  bag,  because  they  had  so  many \nroaches that you can’t leave that like in your house or anything. I have \nto leave it outside by a shed and I won’t bring it in my home. And the \ngentleman I was working with that I was told to keep a eye on and make \nsure he had material, he had came to me and told me that he needed – \n \n. . .  \n \nWell,  we  were  going  to  pick  up  the  sheetrock  material  and  plumbing \ntools basically. \n \nQ:  Okay. What did you need the materials for? \n \nA:  A basin – a basin wrench, it’s about this big, and it’s only good for \none thing and that’s taking the bottom of a sink, the big basket. It’s a \nspecialty tool.  [TR at 17-18.] \n \n1\n Claimant’s counsel stopped the claimant early in his examination to admonish that he should, “[j]ust \nanswer my questions and then move onto the next one, okay?” He soon interjected again, stating, “I’m \nsorry, Your Honor... I don’t want to interrupt, but he—he doesn’t have a... Clint, you’ve got to stop \nafter you answer the questions [or we will] end up with a record that just goes on forever.” See TR at \n15. \n\nC. VICK- G708180  \n4 \n \n According to the claimant, who stated that his memory was refreshed by reviewing \nthe police report from the crash, he left sometime around 1:00 PM that day. [TR at 19.] When \nasked if he was directed by the foreman to leave, he answered: \n A:  That morning – and please tell me if this is hearsay – each morning that we worked \ntogether, he and I delegate what jobs, who’s going to do what, and before I leave the premises, \nI’d call him and tell him where I’m going to be, if an emplolyee a coworker is going with me \nto pick up material or tools where they’re going to be, and then we’ll confirm if he needs to \nget  the material  and  if I  need  to  go  get the  tools,  then we meet right back  up  at the  same \ntime. That way we’re not missing a beat. \nQ:  So – so you left the job site in your vehicle to get the wrench. Was \nthere anything else you were going to get? \n \nA:  Yeah. My entire tool bag that’s sitting outside because I didn’t want \nroaches. \n \nQ:    Okay.  And  do  you  remember  what  was  in  the  tool  bag  that  you \nneeded besides the wrench? \n \nA:  The terminology for it would be flux, but layman’s terms is pipe dope, \nand it seals off things like that.  [TR at 19.] \n  \nThe claimant went on to explain that his tool bag was at a shed at his mother’s house \nand that “I didn’t even get out of the vehicle. I had my coworker go grab that up and put it \nback in the truck and went back to work.” [TR at 20.] The claimant denied buying lunch or \nmaking other stops while away from the job site. \n When  asked  if  the  work  crews  took  regular  lunch  breaks,  the  claimant  began \nanswering with, “In truth, they hire people. I don’t want to hearsay, but--.” His counsel \nadmonished, “Answer the question. Had you been taking lunch breaks on a regular basis?” \nIn response, Mr. Vick explained, “I’d been paying for everybody’s lunch, and since the time \nI’ve been there, I’ve been paying for every single person’s lunch, every single lunch... No, we \n\nC. VICK- G708180  \n5 \n \nhad  not  took  lunch,  and  it  was—I  went—I  was  losing  more  money  on  this  job  than  I  was \nmaking.” [TR at 21.] \n Inconsistent with his  earlier  statement  about  a  coworker  getting  the  tool  bag  and \nputting it in the truck before returning to work, Mr. Vick then said that nobody else was in \nhis vehicle when the accident occurred: \nQ:    All  right.  So  you  go  the  materials,  the – the  pipe  dope  and  the \nwrench. Was there anybody else in your car with you? \n \n A:  No, sir. \n \n Q:  Okay. And then were you headed back to the job? \n \n A:  Yes, sir.  \n \n Q:  And did – and did you get in a car accident? \n \n A:  Yes. Would you like me to... \n \n Q:  Well, you did. You said “yes.” That’s what I asked you. \n \n A: Yes, sir. \n \nQ:  Okay. That’s all I needed—You know, just answer the question.  [TR \nat 21-22.]  \n \nThe claimant stated that his vehicle was struck from behind while waiting to make a \nturn towards the job site. [TR at 22.] \n According to the claimant, he exited the vehicle after the collision and passed out. [TR \nat 24.] He said that the wreck hurt his back and groin. [TR at 25.] Mr. Vick was transported \nto the local emergency department via ambulance. [TR at 26.] After discharge, he eventually \nfollowed up with his primary care provider and then another provider who ordered an MRI \non 2 November 2017. [TR at 28.] \n Mr. Vick went on to describe ongoing pain in his  back and shoulder and his groin and \nhip. [TR at 29-32.] He stated that he presented for physical therapy, but was advised against \ntreatment  there.  [TR  at  33.]  He  explained  that  he  saw  several  different  providers, \n\nC. VICK- G708180  \n6 \n \nexperienced ongoing hip and back, that he can “bend over and tie a shoe about once, twice a \nweek without pain,” and that he eventually had surgery with Dr. O’Malley on  his  hip  and \nlower torso. [TR at 36-37]. When asked to “keep this simple” and tell what he injured in the \n11 October 2017 accident, he responded: \n Okay. It was the lower right – It was more or less the lower right side \nof my back initially... And on over—after a wreck, you know, you expect to be \na little bit sore the following day, but it didn’t dissipate like previous. My \nshoulder,  I  felt – Well,  I  had  a  torn  rotator  cuff  in  my  shoulder  and  I  had  a \npreexisting injury in my shoulder, but it wasn’t like this. I can’t have surgery \nuntil they said I get a letter from a judge stating that I have a workman’s comp \nclaim. They won’t even touch me. So my groin still to – the rest of my life, that’s \nnot ever – If it was going to get better, it would have been better by now, and I \nknow that, and that is – and speaking in a – I don’t know how to say this in a \n– in a nice way – it affects the way I walk. I wear my shoes out a certain way \nlike the – everything. I walk differently. I can’t sleep. You can’t lay on your – \nyou’ll toss and turn, insomnia. I went from wheelchair, crutches, to urinating \non myself for – trying to get to the restroom for months and fighting with this.  \n[TR at 38-39.] \n \n The  claimant  described  other  previous  injuries  or  conditions  and  frustration  with \navailable treatment options, stating, with regard to his pain, that “a pain clinic masks what’s \ngoing on, and sometimes you need to know what’s going on.” [TR at 42.] Before  his  direct \nexamination closed, the claimant stated that the accident also caused worsening pain in his \nleft hip, which was already giving him trouble from previous, unrelated injuries. [TR at 43.]  \n B.  Claimant on Cross Examination by Ms. Edwards \n Mr.  Vick  corrected  an  earlier  misstatement  and  confirmed  that  Daniel  Garner, \nanother employee, was in his vehicle at the time of the accident. [TR at 46-47.] According to \nthe claimant, Mr. Garner needed some sheetrock and some trowels or a trowel to complete \nsomething he was working on at the job site. The claimant went on to explain that he kept a \n\nC. VICK- G708180  \n7 \n \nsecond timecard while working for the respondents “because they’d cheat us out of our hours \nevery two weeks.” [TR at 48.]\n2\n  \n The  claimant  confusingly  testified  back-and-forth again on  whether  the  employees \ntook  lunch  breaks,  seeming  to  settle  his  position  on  the  workers  not  taking  lunch  breaks \nbecause he could not personally afford to buy lunch for everyone every day. [TR at 50.] When \nasked by the respondents’ counsel about the “L” notation and time deduction on the time \ncards admitted into the record (see Resp. Ex. No 2 at 1-4), the claimant attacked the credibility \nof the evidence, saying that he and his son were not paid for working past midnight because \n“Human Resources left at 5:00.” [TR at 51.] “We never seen the time card ‘til the next—the \nfollowing morning,” he said. [TR at 52.] \n Mr. Vick confirmed that he did not return to work for the respondents and that he had \nnot undertaken any substantial work since the accident. [TR at 53.] He stated that he had \nnot looked for or applied for any work. The claimant stated that he was unable to drive and \nthat his supervisor Mr. Valentine, who had hired him to work for the respondents, had driven \nhim to a previous hearing on this matter in Little Rock. [TR at 54.] \n After  a  series  of  questions  and responses  about whether  or  how  employees  could or \nshould  go  about  getting  tools  and  materials  from the  local  lumber  store,  the  claimant  said \nthat he had Mr. Valentine’s permission to get whatever tools or materials he and/or Dan \nGarner needed. [TR at 66.] He said that he drove his vehicle because he was not allowed to \ndrive the employer’s work truck. The claimant also said that they “had already finished \npicking up the tools by the time that [they] were in the auto accident.” [TR at 66-67.] \n The claimant reviewed with counsel some of his past health complaints and medical \nrecords and discussed his past pain management treatment. [TR at 73.] He acknowledged a \n \n2\n It is difficult to ascertain from the record, but during cross examination, the claimant produced what \nhe purported to be his duplicate timecard during the questioning. It was not offered into evidence. \n\nC. VICK- G708180  \n8 \n \npositive drug test result, but disagreed that he was discharged from care. [TR at 74.] He then \nrecalled  being  released  by  the  providers  from  one  program  and  withdrawing  himself  from \nanother. Mr. Vick offered that he was not treating at the time of the hearing. [TR at 75.]  \nC.  Examination of James Valentine \nMr. Valentine stated that he had known the claimant for “twenty-some years.” [TR at \n77.] He was in his second year of employment with the Housing Authority at the time relevant \nto this claim. [TR at 78.] The witness recalled being the claimant’s supervisor on the day of \nthe accident and thought that Mr. Vick was working on some plumbing that day. He testified \nthat Mr. Vick could leave the job site and that it was common for people to use their own tools \non the job. [TR at 79.] According to Mr. Valentine, he did not know of the claimant’s plans, if \nany, for lunch on the day of the accident. [TR at 80-81.] It was not uncommon for the claimant \nto leave for materials in his vehicle. [TR at 82.]  \nThe witness recalled the scene of the accident and thought that the claimant had been \nworking for the respondent for a couple of months around that time. [TR at 84.] He also said \nthat Mr. Vick was a good worker. [TR at 85.] \nOn cross-examination, Mr. Valentine explained the organization structure at the work \nsite, with Kenny Gober being the “overseer of everything” and Melissa Gober working as the \naccountant who “also helped with some other things.” Recalling some others on the job, Mr. \nValentine had trouble remembering someone’s name. The witness and the claimant were \ninstructed  not  to  communicate  while  the  examination  was  underway.\n3\n [TR  at  86.] Mr. \n \n3\n The interaction is captured on the record, but without clear indication of to whom I was speaking. \n“Don’t look at him” was directed to the witness, while “[you] don’t look at him and don’t respond [in \nthe] affirmative” was directed to the claimant, who was attempting to communicate from counsel’s \ntable. I admonished, “he had to sit outside. You can’t let him know if he’s saying something right.” See \nTR at 86. Still, the claimant continued, “may I add, I have worked with him several times on and off, \nso.” \n\nC. VICK- G708180  \n9 \n \nValentine confirmed that the two touched base most mornings so that each knew what the \nother would be working on. [TR at 87.] \nMr. Valentine said that he asked the claimant to get whatever he needed for that day’s \nwork. When the respondents’ counsel brought up a note from 2017 that stated otherwise, he \nsaid that getting tools “was discussed.” [TR at 88.] When pressed further on whether he told \nthe claimant “I need you to do this,” he was uncertain, asking counsel, “It’s kind of understood \nif we discussed it, right?” She disagreed, and the witness responded, “I’m not sure how to \nanswer this.” He said that he believed that he told the claimant to go get the tools. \nQ:  So this happened six years ago, right? And I just noticed that you \nlooked at him. So this happened six years ago, right? \n \nJudge:  Don’t [look for an answer from the claimant]—talk to her [Ms. \nEdwards]. \n \nA:  Ma’am, this happened six years ago. \n \nQ:  Okay. That’s what I’m asking. Okay. So is it possible that you don’t \nremember the context, the entire context of the conversation that y’all \nhad? Is it possible? \n \nA:  Yes, ma’am, it could be possible. \n \nQ:  Okay. So I also have a note that back in 2017, that you stated that \nMr. Vick was on lunch at that time, and you’re saying that’s not true? \n \nA:  Yes, ma’am. I—He was not on lunch, no, ma’am. \n \nQ:  Okay. \n \nA:  May—can I – May I see this statement that I—  [TR at 89.] \n  \nThe witness went on to affirm that he and Mr. Vick had known each other for 20 years \nand that he had asked Mr. Vick to come work at the Housing Authority. [TR at 90.] \n After some questions about materials and getting tools to the job site, Ms. Edwards \nasked if in the past, Mr. Valentine recalled asking Mr. Vick to bring his tools to the job site. \nHe  said  that  he  did  not  recall.  [TR  at  94.] When  asked about  the  company  truck, Mr. \n\nC. VICK- G708180  \n10 \n \nValentine said he wasn’t sure whether Mr. Vick was allowed to drive it.\n4\n If Mr. Vick provided \ntransportation  for  other  employees  to  and  from  work,  that  would  have  been  of  his  own \nchoosing, as “it was their responsibility to get there.” [TR at 96.] \n At the conclusion of Mr. Valentine’s testimony, all  parties  indicated  the  close  of \nevidence. No  additional  witnesses  were  called.  I  reminded  Mr.  Webb  that  his  objection  to \nRespondents’ Exhibit No 2 at 16, a letter from Brooke Cingolani, was noted and that that my \nopinion would address the issue. He did not add to his earlier objection based on any other \nthe testimony or other evidence on the record. Mr. Vick attempted to go on as his attorney \nleft: \nClaimant: May I just say that y’all— \n \nJudge:  No. That’s—your’e— \n \nClaimant: — y’all—I mean, I’m just going to tell you, y’all—that was—\nI mean, that was—I’ve never been in— \n \nJudge:  All right. Well, I don’t know if your lawyer wants you to provide \nany narration. \n \nClaimant:  I’m just saying, y’all—well, I mean— \n \nJudge:  ... you’re not called as a witness at the moment, so let’s cut that \nout. I’m sure he’ll thank you for—whatever.  With  that,  the  case  is \nsubmitted, so we’re off the record.  [TR  at  98-99.]  There,  the  record \nended. \n \nIV.  ADJUDICATION \n The  stipulated facts are  outlined  above. It  is settled that  the  Commission, with the \nbenefit of being in the presence of a witness and observing his or her demeanor, determines \na witness’ credibility and the appropriate weight to accord their statements. See Wal-Mart \nStores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999). The Commission must \n \n4\n Mr. Vick was reminded again from the bench to avoid attempting to coach an answer: “Try not to be \nresponsive. You were kind of shaking your head a little bit. Don’t do that.” See TR at 94. \n\nC. VICK- G708180  \n11 \n \nsort through conflicting evidence and determine the true facts. In so doing, the Commission \nis not required to believe the testimony of the claimant or any witness, but may accept and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001). It is further \nsettled that a party’s testimony is never considered uncontroverted. Nix  v.  Wilson  World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). \nA.  The Claimant Failed to Prove by a Preponderance of the Evidence that he Suffered \na Compensable Injury. \n \nUnder Arkansas’s Workers’ Compensation laws, a worker has the burden of proving \nby a preponderance of the evidence that he sustained a compensable injury as the result of a \nworkplace incident. Ark. Code Ann. § 11-9-102(4)(E)(i). In order for an accidental injury to be \ncompensable, it must arise out of and in the course of employment. Ark. Code Ann. § 11-9-\n102(4)(A)(i). A  compensable  injury  does  not  include  an  injury  that  is  inflicted  upon  the \nemployee at a time when employment services are not being performed. Ark. Code Ann. § 11-\n9-102(4)(B)(iii). Neither “in the course of employment” nor “employment services” are clearly \ndefined in the Workers’ Compensation Act, so it has fallen on the courts to frame those terms \nin  a  way  that  neither  broadens  nor  narrows  the  scope  of  the  Act. Texarkana  Sch.  Dist.  V. \nConner, 373 Ark. 372, 284 S.W.3d 57 (2008). \nEmployment services are generally considered those things that an employer requires \nof its employees. Pfifer v. Single Source Transp., 3247 Ark. 851, 69 S.W.3d 1 (2002). The test \nfor  whether  an  employee  is  acting  within  the  course  and  scope  of  his  or  her  employment \nusually  involves  considering  whether  an  employee  is  directly  or  indirectly  advancing  an \nemployer’s interest at the time a thing is being done. Jivan v. Econ. Inn & Suites, 370 Ark. \n414, 260 S.W.3d 281 (2007). \n\nC. VICK- G708180  \n12 \n \nThis  case  turns  primarily  on  whether  the  claimant  was  acting  in  the  course  of \nemployment or performing employment services at the time of the car accident. I find it more \nlikely than not that he was acting outside of the course of his employment at the time of the \naccident and that he, thus, cannot prove a compensable injury related thereto. \n My  finding  is  not  tied  to  any particular previously  litigated pattern  of  behavior \nreviewed by and then found by our courts to be or not be, for the purposes of the Arkansas \nWorkers’ Compensation Act, working behavior. I am mindful, though, that many past cases \noffer guidance. See, e.g., Shelton v. Qualserv & Am. Cas. Co., 2013 Ark. App. 469, 2013 Ark. \nApp. LEXIS 492 (noting several other holdings around working behavior). Rather it rests on \nthe credibility—or  a  lack  thereof,  of  the  testimony  now  attacking  the  contemporaneously \ndocumented version of the events. \n  The  claimant  was  not  a  credible  witness.  The transcript reflects  at  times, and  the \nfootnotes above do as well (to some extent), that the claimant’s demeanor on the stand was \ndifficult towards those asking questions of him. He was evasive and often more inclined to \ntell a story around a question’s answer than simply answering a question. Mr. Vick was \ninconsistent on whether he or others took lunch breaks—an important part of the issue at \nhand.  In  one  instance  there  were  no  lunch  breaks,  while  in  another  he personally  bought \nlunch for everyone he worked with until he grew tired of paying for everyone’s lunch. He \nstated that his job duties included “picking every single employee up,” while Mr. Valentine \nsaid that it was each employee’s responsibility to get to and from work and that if or when \nsomeone rode with Mr. Vick, it was probably just because they happened to ask Mr. Vick for \na ride. \n Mr. Vick disputed the veracity of his time cards, which were marked to indicate time \noff for lunch. While he acknowledged that the cards were hand-marked with time deductions \nand an “L” for time off the clock while away on lunch, he claimed that those cards were not \n\nC. VICK- G708180  \n13 \n \naccurate because they were taken by HR when they left every day at 5:00 pm. Those cards, \nhowever, clearly indicate that his testimony was not true in that regard. See Resp. No 1 Ex. \nNo 2 at 1-4. His time card for 28 August to 1 September, for example, shows that he punched \nout at the clock at 6:08, 7:14, 6:24, 8:16, and 8:19 on each of those days. These records stand \nin plain contrast to his claims that “they clocked us out when they wanted to” so they could \n“cheat us out of our hours.” [TR at 48.] \n Mr. Vick’s claim was denied by the respondents from the outset because they asserted \nthat he was out and returning from lunch at the time of the accident. Their records reflect \nthe same. See Resp. No 1 Ex. No 2. \n The claimant objected, on the basis of hearsay and a supposed violation of the Sixth \nAmendment [TR at 8-9], to the admission of a letter from the respondents authored by Brook \nCingolani and dated 5 December 2022. See Resp. No 1 Ex. No 2 at 16. First, I do not find that \nthe Sixth Amendment\n5\n is at all implicated here. Second, the Commission “shall not bound by \ntechnical rules of evidence.” Ark. Ann. § 11-9-705(a)(1). It is not clear if Ms. Cingolani was \nthe  intended  witness  noted  in  Respondent No 1’s Prehearing Questionnaire Response as a \n“Representative  of  the  McGehee Housing  Authority.” Respondent No  1 argued,  without \nfurther explanation as to why, that Ms. Cingolani was not available to testify at the time of \nthe  hearing. Still, I  find  the  record  admissible,  but  not  of  much  value  beyond  that  it  was \nprepared by the respondents in the course of this litigation and apparently for the purpose of \nthis litigation (it is dated more than three weeks prior to the date of the prehearing telephone \n \n5\n In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, \nby an impartial jury of the State and district wherein the crime shall have been committed, \nwhich district shall have been previously ascertained by law, and to be informed of the nature \nand  cause  of  the  accusation;  to  be  confronted  with  the  witnesses  against  him;  to  have \ncompulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel \nfor his defense. U.S. Const. amend. VI. \n\nC. VICK- G708180  \n14 \n \nconference) and that it is consistent with the respondents’ position on this matter since the \ntime around the accident.  \n As to Mr. Valentine’s testimony, I find it of little evidentiary weight. He acknowledged \nthat  he  hired  the  claimant  to  work  for  the  Housing  Authority,  that  they  had  known  each \nother for two decades, and that Mr. Vick “went through a lot since the accident.” [TR at 83.] \nMr. Valentine even drove Mr. Vick to Little Rock for a previous hearing on a motion to dismiss \nthis case. [TR  at  90.] Mr.  Valentine  could  not  recall  generally  telling  the  claimant  that  he \nwas to bring any specific tools to work. [TR at 94.] When pushed, he conceded that he could \nnot recall  exactly the context of that morning’s conversations and whether  he  directed  the \nclaimant  to  leave  the  site  to  retrieve  some  tools  or  whether  he  was  only  aware  that  the \nclaimant would leave at some point during the day (which his time cards reflect he regularly \ndid). When he stated that Mr. Vick was not on lunch at the time of the accident, he did not \nrecall an earlier statement, in a note from 2017, to the contrary. Despite Mr. Vick’s urging \nfrom across the room, as he was admonished against more than once, Mr. Valentine did not \nprovide sufficient credible testimony to refute the respondents’ position that Mr. Vick was \nnot performing work services at the time of the accident. At best, I believe that Mr. Valentine \nwrestled with his responsibility to tell the truth, his faded actual memory of that day’s events, \nand the “version” that he knew Mr. Vick was urging he remember on the stand. \n I would be remiss to not make note of what was not mentioned in Mr. Vick’s testimony \nin-line with his purported version of that day’s events. He said that Mr. Garner left with him \nso  that  they could  get sheetrock supplies  and trowels  that Mr.  Garner  needed for what  he \nwas working on that day. There is, however, no mention of those materials in relaying their \ntrip to Mr. Vick’s mother’s shed for Mr. Vick’s plumbing bag and their returning to the job \nsite. If, call it, “half” of the reason for the trip was getting tools and supplies for Mr. Garner, \nwhy not include the what’s and where’s of accomplishing that in the story about leaving and \n\nC. VICK- G708180  \n15 \n \nheading back to work? That gap in Mr. Vick’s story is certainly not dispositive, but it is \nanother  reason  I  call  into  question  his  version  of  the  events  and  his  stated  purposes  for \nleaving the job site that day. \n As  I  do  not  find it  more  likely  than  not that  the  accident  occurred  during  the \nperformance or work duties or within the course of Mr. Vick’s employment, I decline to reach \nthe  merits  of  the  defense  that  he  cannot  prove  a  compensable  injury  for  lack  of  objective \nmedical findings associated with the accident. That issue is moot.  \nB.  Attorney’s Fee \nConsistent  with  the  above,  the  claimant  fails  to  establish  that  he  is  entitled  to  an \nattorney’s fee. \nV.  ORDER \n Consistent with the Findings of Fact and Conclusions of Law set forth above, this \nclaim is DENIED AND DISMISSED. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":29650,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G708180 CLINT A. VICK, EMPLOYEE CLAIMANT McGEHEE HOUSING AUTHORITY, EMPLOYER RESPONDENT No 1 AR MUNICIPAL LEAGUE-WCT, TPA RESPONDENT No 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT No 2 OPINION FILED 27 OCTOBER 2023 Heard before Arkansas Wo...","outcome":"dismissed","outcomeKeywords":["dismissed:2","denied:1"],"injuryKeywords":["back","shoulder","hip"],"fetchedAt":"2026-05-19T23:02:20.868Z"},{"id":"alj-H202188-2023-10-26","awccNumber":"H202188","decisionDate":"2023-10-26","decisionYear":2023,"opinionType":"alj","claimantName":"Mary Cummins","employerName":"Accurate Healthcare Inc","title":"CUMMINS VS. ACCURATE HEALTHCARE INC. AWCC# H202188 OCTOBER 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CUMMINS_MARY_H202188_20231026.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CUMMINS_MARY_H202188_20231026.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H202188 \n \nMARY CUMMINS, Employee                                                                         CLAIMANT \n \nACCURATE HEALTHCARE INC., Employer                                         RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, Carrier                                   RESPONDENT \n \n OPINION FILED OCTOBER 26, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by DAVID L. SCHNEIDER, Attorney, Springdale, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On August 24, 2023, the above captioned claim came on for a hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on June 22, 2023 and a pre-hearing order \nwas  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been  marked  as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n            2.   The employee/employer/carrier relationship existed on February 23, 2022. \n            3.   The claimant sustained a compensable injury on February 23, 2022. \n            4.  The compensation rate is $635.00 for temporary total disability, and $476.00 for      \n       permanent partial disability.   \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1.  Whether claimant is entitled to additional medical treatment regarding her back \n injury. \n\nCummins-H202188 \n2 \n \n \n            2.  Whether claimant is entitled to temporary total disability benefits. \n            3.   Attorney’s fees. \n All other issues are reserved by the parties. \n The claimant contends that “She sustained a compensable injury while working for \nrespondent on or about 02/23/22. At that time, claimant was in the course and scope of her \nemployment  with  respondent  when  claimant  injured  her  back  while  delivering  medical \nsupplies.  Claimant  has  been  treating  conservatively  with  Dr.  Randolph  in  the  form  of \ninjections, physical therapy, and surgery. Dr. Randolph has now recommended the claimant \nundergo a L4-5 lateral lumbar interbody fusion and has further stated she should be off work \nfrom 04/18/23 to a date to be determined. Respondents have controverted this surgery and \ntemporary total disability benefits.”  \n The respondents contend that “The surgical recommendation is not reasonable, \nnecessary, or related to the work injury and is not the responsibility of the respondents. It \nwas reviewed as required by Commission Rule 30 and denied.” \n          From a review of the entire record, including medical reports, documents, and other \nmatters  properly  before  the Commission,  and  having  had  an  opportunity  to  hear  the \ntestimony of the claimant and to observe her demeanor, the following findings of fact and \nconclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non June  22,  2023, and  contained  in  a  pre-hearing  order  filed  that  same  date  are  hereby \naccepted as fact. \n 2.   Claimant has met her burden of proof by a preponderance of the evidence that \n\nCummins-H202188 \n3 \n \n \nshe is entitled to additional medical benefits from Dr. Gannon Randolph for her back injury. \n3.   Claimant has failed to prove by a preponderance of the evidence that she is \nentitled to temporary total disability benefits up to the date of the hearing. \n \nFACTUAL BACKGROUND \n In  her  contentions  listed above,  claimant sought  temporary  total  disability  benefits \nfrom April 18, 2023, until a date to be determined.  Before the testimony began at the hearing, \nclaimant withdrew that claim, advising that Dr. Randolph had released claimant to return to \nwork and had not said she was back in a period of disability since that release.  As such, there \ncan be no award of temporary total disability benefits.  Claimant asked that those indemnity \nbenefits begin when Dr. Randolph finds she is again disabled.   \nHEARING TESTIMONY \n \n Claimant  testified  that  on  February  23,  2022, she  was  unloading  a  bed  from her \ndelivery truck and injured her back while doing so. She developed lower back pain which was \nradiating  on  her  left  side.  After  having  difficulties  finding  a  physician,  she  was  eventually \nreferred  to  Dr.  Gannon  Randolph.  Dr.  Randolph  did  decompression  surgery  on  June  29, \n2022, which improved her condition somewhat, but claimant still had excruciating pain in her \nlower back. Following the surgery, she was able to sit whereas before the surgery, sitting was \npainful.  \n As of the date of the hearing, claimant said the pain in her lower back was getting \nworse. She said certain movements caused her back to feel as though someone was stabbing \nit with a knife. She has fallen a few times and was using a cane as of the date of the hearing. \nWhile claimant is scared to have the surgery Dr. Randolph is now suggesting, she believes it \nis necessary for her to improve where she can walk and engage in everyday activities.  \n\nCummins-H202188 \n4 \n \n \n Claimant was asked about Respondent’s Exhibit #2 and said that she had never been \nexamined by Dr. Robert Pick, nor had she had any correspondence with him regarding the \nstatus of her case.  \n On  cross-examination,  claimant  testified  that  she  had  previously  worked  for \nrespondent Accurate Healthcare but had to stop working due to fibromyalgia in her arms and \nshoulders.  \n Claimant  was  asked  about  an  EMG  nerve  conduction  study that  was done  by  Dr. \nMark Miedema in June 2022 and recalled that test but did not remember having another one \nin  April  2023.  She  did  not  know  that  the  second  EMG  was  normal  and  “Her  left \ndecompression  has  removed  all  the right sided radicular symptoms she is having.” She \nunderstood the records reflected that she discussed that EMG with Dr. Randolph, but she \ndid  not  recall  it.  She  had  discussed  an  intrabody  fusion  at  L4-L5  that  Dr.  Randolph  was \nrecommending.  \n On re-direct examination, claimant clarified that she was originally having left sided \nradicular pain but is now having right sided radicular pain. She said that even before surgery, \nshe was having some right sided radicular pain, but it wasn’t as bad as the left side until after \nthe surgery. She testified that the right-side radicular pain and the lower back pain is getting \nworse.  \nREVIEW OF THE EXHIBITS \n \n Both  claimant  and  respondents  submitted  records that  predated claimant’s back \nsurgery of June 29, 2022. Little in those records is relevant to the issue in this case because \nthe focus of that treatment and surgery was the radicular component of claimant’s back injury \nas it affected the left side of her lower extremity. The nerve conduction test performed by \n\nCummins-H202188 \n5 \n \n \nDr. Mark Miedema (R.X.1, pages 36-38) was specifically targeted to the left side of her body. \nThere were no “motor left/right comparison done in that study.” \n Claimant was asked on cross-examination about a second EMG that occurred after \nher surgery. There is no report from a post-surgical EMG, but rather a reference to it in Dr. \nRandolph’s notes. There was an intraoperative neurophysiology test done during the surgery \non June 29, 2022. (R.X.1,pages 54,55) While nothing in that report specifies that the left side \nof claimant’s body was being tested, I note that the report says, “Please see tech notes for \ndetails of stimulation and recording,” but those notes were not submitted as exhibits to show \nwhich side of claimant’s body was being tested during the surgery; because the surgery was \nto relieve pain on her left side, it would have been unusual for her right side to have been \ntested during that procedure.  \n Following the surgery, claimant did very well on her left side but within six weeks of \nthe surgery, she developed right S1 radiculopathy. She was seen by physician’s assistant \nAmanda  Haas  on  August  18,  2022, and  was  given  a Medrol  dosepak  and  was  prescribed \nphysical therapy. Claimant had an MRI on her lumbar spine on October 11, 2022, which was \ncompared  to  the  March  24,  2022, MRI  by  Dr.  Signe  Rebolledo.  His  report  included  the \nfollowing: \n“The interval left laminectomy at L4 has improved canal stenosis at \nthe  L4-5  level.  Residual  central  disc extrusion and  ligamentum \nflavum thickening contribute to mild persistent canal stenosis at L4-\n5.  There  was  moderate  left  and  mild  right  foraminal  narrowing, \nwhich appears mildly improved on the left.” \n \n Claimant  returned  to  Dr.  Miedema on  August  25,  2022, and  was  recertified  for \nphysical  therapy.  It  is  mentioned  that  she  was  having  right  S1 radiculopathy.  It  does  not \nappear that Dr. Miedema released her after that visit. (R.X.1, pages 64-69)  \n\nCummins-H202188 \n6 \n \n \n There  were  no  additional  records  from Dr.  Randolph;  however,  on November  8, \n2022, he issued a return to work note that said: “Patient was seen in my office on October \n27, 2022.  As  of  October  27,  2022, patient may return to work with no restrictions.” It is \nunclear that Dr. Randolph saw claimant on that date. She was back in his office on February \n2, 2023, complaining of continued symptoms of lumbopelvic junction pain radiating down \ninto her right buttock. Dr. Randolph noted that claimant had a “Palpable spasm just inferior \nmedial to  the  PSIS  on  the  right  side  which  reproduces  some  of  her  pain.  Dr.  Randolph \nadministered a GBR-trigger point injection. It is in this report that it is noted there was an \nEMG of the lower extremity conducted on January 18, 2023 which was normal. Dr. Randolph \nconcluded his report with:  \n“Patient is doing relatively well from a radicular standpoint. Still \nhaving low back pain. Really my only option for that is an L4-5 lateral \nlumbar intrabody fusion. She does have a spinal enthesopathy and I \nwill inject that with trigger point injection today. We will see how she \ndoes with this. She can call if she gets about fifty percent relief, we \ncould reinject in two weeks. I will see her back in three months.” \n \nHer next appointment was scheduled for May 25, 2023; however, claimant did not \nwait until the scheduled appointment to see Dr. Randolph. She was in his office on April 18, \n2023; at the conclusion of that examination, Dr. Randolph recorded: \n“Mary has continued low back pain radiating down into the right leg and \nbuttock almost down to the knee but not below the knee. We did an EMG \nwhich  was normal, and  her  left  decompression has  removed  all  of  the  left \nsided radicular symptoms she was having. Likely her remaining symptoms are \nfrom  her  facet  joint  on  the  right.  Really  my  only  good  answer  for  that  is  a \nlateral lumbar interbody fusion at L5-4. With MIS Psif. Patient is interested \nin proceeding with surgical treatment.” \n \n Respondents  submitted a physician’s advisory report from Dr. Robert Pick who is \nlicensed  to  practice  orthopedic  surgery  in  Maryland,  Massachusetts,  New  York,  and \nTennessee. Dr. Pick did not examine claimant but reviewed thirty-one pages of records, the \n\nCummins-H202188 \n7 \n \n \nbulk  of  which  came  from  Dr.  Randolph.  Reviewing  the  records  and  applying  the Official \nDisability Guidelines to those records that he reviewed, Dr. Pick concluded that the surgery \nrecommended by Dr. Randolph was not necessary. \nADJUDICATION \n  \n The only issue to be decided in this matter is whether claimant is entitled to additional \nmedical  treatment  for  her  compensable  injury of February  23,  2022.  Once  it  has  been \nestablished that a claimant has sustained a compensable injury—which was a stipulation--she \nis not required to offer objective medical evidence to prove entitlement to additional benefits, \nArk. Health Ctr. v. Burnett, 2018 Ark. App. 427, at 9, 558 S.W.3d 408, 414. \n The evidence on this point boils down to whether the testimony of the claimant and \nthe opinion of her treating physician is more persuasive than the report of a doctor who only \nreviewed records provided to him.  I found claimant to be a credible witness as to her current \ncondition.  I further find Dr. Randolph's recommendation is more credible than the opinion \nof Dr.  Pick which  denied that  recommendation; both  Dr.  Randolph and  Dr.  Miedema \nattempted conservative care, and it failed to alleviate claimant’s medical issues.  Therefore, \nclaimant's proof is sufficient to support her request for continued medical treatment for her \ncompensable injury. \n The  final  issue  for  consideration  involves claimant’s request for temporary  total \ndisability  benefits if  she  has  the  recommended  surgery.  As  stated  above, claimant \nacknowledged at  the  hearing that  there  were  no  unpaid  temporary  total  disability  benefits; \ninstead, claimant is simply requesting temporary total disability benefits with respect to the \nsurgery   recommended   by   Dr. Randolph. A claimant   who   suffers   a   non-scheduled \ncompensable injury  is  entitled  to temporary  total  disability  benefits so  long  as she remains \n\nCummins-H202188 \n8 \n \n \nwithin  their  healing  period  and has a  total  incapacity  to  earn  wages.  While  claimant  may \nbecome totally incapacitated at some point in the future, as of the time of the hearing she was \nnot totally incapacitated from earning wages and it would be speculative to award temporary \ntotal disability benefits at this time. Any ruling on future temporary total disability benefits \nwould be speculative and not based upon the evidence of record. Therefore, no temporary \ntotal disability benefits can be ordered at the present time. \n \nORDER \n \nClaimant has met her burden of proving by a preponderance of the evidence that she \nis  entitled  to  additional  medical  treatment  in  the  form  of  surgery  as  recommended  by  Dr. \nRandolph. Claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits as of the date of the hearing. \nPursuant  to  A.C.A.  §  11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  \"only  on  the \namount  of  compensation  for  indemnity  benefits  controverted  and  awarded.\"  Here,  no \nindemnity  benefits  were  controverted  and  awarded;  therefore,  no  attorney  fee  has  been \nawarded. Instead, claimant's attorney is free to voluntarily contract with the medical providers \npursuant to A.C.A. § 11-9-715(a)(4). \nRespondent is responsible for paying the court reporter's charges for preparation of \nthe hearing transcript. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n           JOSEPH C. SELF \n          ADMINISTRATIVE LAW JUDGE","textLength":15185,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202188 MARY CUMMINS, Employee CLAIMANT ACCURATE HEALTHCARE INC., Employer RESPONDENT TRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT OPINION FILED OCTOBER 26, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Ark...","outcome":"granted","outcomeKeywords":["granted:4","denied:2"],"injuryKeywords":["back","lumbar","knee"],"fetchedAt":"2026-05-19T23:02:08.344Z"},{"id":"alj-G307750-2023-10-26","awccNumber":"G307750","decisionDate":"2023-10-26","decisionYear":2023,"opinionType":"alj","claimantName":"Julie Dunevant","employerName":"St. Bernard Med. Ctr","title":"DUNEVANT VS. ST. BERNARD MED. CTR. AWCC# G307750 OCTOBER 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Dunevant_Julie_G307750_20231026.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Dunevant_Julie_G307750_20231026.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G307750 \n \n \nJULIE DUNEVANT, EMPLOYEE CLAIMANT \n \nST. BERNARD MED. CTR., \n SELF-INSURED EMPLOYER RESPONDENT NO. 1 \n \nRISK MGMT. RESOURCES, \n THIRD-PARTY ADM’R RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL \n DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n \nOPINION FILED OCTOBER 26, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on  October 20, \n2023, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  No.  1  represented  by  Mr.  S.  Shane  Baker,  Attorney  at  Law, \nJonesboro, Arkansas. \n \nRespondent  No.  2,  represented  by  Ms.  Christy  L.  King,  Attorney  at  Law,  Little \nRock, Arkansas, excused from participation. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on  the Motion to Dismiss filed \nby Respondents No. 1.  A hearing on the motion was conducted on  October 20, \n2023,  in  Jonesboro,  Arkansas.    Claimant,  who  is pro  se,  failed  to  appear.  \nRespondents  No.  1  were  represented  at  the  hearing  by  Mr.  S.  Shane  Baker, \nAttorney  at  Law,  of  Jonesboro,  Arkansas.    Respondent  No.  2,  represented  by \nMs.  Christy  L.  King,  Attorney-at-Law,  Little  Rock,  Arkansas,  was  excused  from \n\nDUNEVANT – G307750 \n \n2 \nparticipation.    The  record  consists  of  the  Commission’s  file,  which  without \nobjection has been incorporated herein in its entirety by reference. \n The evidence reflects that  per the First Report of Injury or Illness filed on \nSeptember 30, 2013, Claimant purportedly suffered an injury to her back at work \non September 22, 2013, when she was helping a patient out of bed.  According \nto  the  Form AR-2 that  was  filed  on  October  4,  2013,  Respondents  No.  1 \naccepted the claim and paid medical and indemnity benefits pursuant thereto. \n On  January  16,  2014,  through  then-counsel  M.  Scott  Willhite,  Claimant \nfiled  a  Form  AR-C,  requesting  initial  benefits.  He  followed  this  up  on  February \n20,  2014,  with  a  hearing  request.    The  file  was  assigned  to  then-Administrative \nLaw Judge Andrew L. Blood.  The parties stipulated that Claimant’s lumbar injury \nwas  compensable,  that  she  was  assigned  an  impairment  rating  of  ten  percent \n(10%)  to  the  body  as  a  whole,  and  that  she  reached  maximum  medical \nimprovement on February 14, 2014.  In a prehearing order entered on March 31, \n2014,  Judge  Blood  scheduled  a  hearing  for  June  6,  2014,  on  the issues  of \nClaimant’s   entitlement   to   wage   loss   disability   benefits  and  a   controverted \nattorney’s  fee.    In  the  meantime,  Claimant  requested  a  change  of  physician.  \nJudge Blood had the file temporarily reassigned to the Medical Cost Containment \nDivision to process the request, but kept the hearing on his docket.  However, he \nlater  granted  Claimant’s  continuance motion on  May  29, 2014,  returning  the  file \nto  the  Commission’s  general  files.    Thereafter,  on  June  19,  2014,  a  change-of-\n\nDUNEVANT – G307750 \n \n3 \nphysician  order  was  entered,  changing  Claimant’s  authorized  treating  physician \nto Dr. William Ackerman. \n Through  her  then-attorney,  Claimant  made  a  new  hearing  request  on \nDecember  2,  2014.    Following  another  prehearing  telephone  conference,  Judge \nBlood on December 15, 2014, reset the hearing for March 6, 2015, and added an \nissue  concerning  whether  Claimant was  entitled  to  additional  temporary  total \ndisability  benefits.    But  on  February  25,  2015,  Claimant  again  requested  a \ncontinuance from Judge Blood, representing that a tentative settlement had been \nreached.  Based on this, the judge canceled the hearing. \n The  file,  however,  reflects  that  the  settlement  did  not  proceed  to  a  joint \npetition.    On  June  19,  2015,  her  then-attorney  made  a  third  hearing  request  to \nthe  Commission.    Judge  Blood  conducted  a  prehearing  telephone  conference \nwith the parties on July 6, 2015; and thereafter,  he reset the hearing for August \n21,  2015.    But  on  August  12,  2015,  based  on  a  change  in  Claimant’s  physical \ncondition that necessitated a surgical consult, she again sought a continuance of \nher   hearing.      This  was   granted,  and  the   file   was   again   returned   to   the \nCommission’s general files. \n On  February  28,  2017,  Claimant  through  her  counsel  made  another \nhearing   request.      Judge   Blood,   following   another   prehearing   telephone \nconference  on  March  13,  2017,  issued  a  prehearing  order  that  scheduled  a \nhearing (on the same issues as raised previously) for June 2, 2017.  The copy of \nthe  order  that  was  sent  to  Claimant  by  certified  mail  was  returned,  unclaimed.  \n\nDUNEVANT – G307750 \n \n4 \nShortly thereafter, on March 20, 2017, Respondent No. 2 accepted joinder to the \nclaim.    But  the  Fund  informed  Judge  Blood  on  May  19,  2017,  that  they  were \ndeferring  to  the  outcome  of  litigation  and  were  waiving  their  appearance  at  the \nhearing.  On May 26, 2017, Respondents No. 1 requested a continuance, based \non  new  medical  evidence  and  the  probability  that  the  matter  could  be  settled.  \nJudge  Blood,  however,  denied  the  continuance  request.    Despite  this,  he \nreversed  course  on  May  30,  2017,  and  continued  the  hearing  for  two weeks  so \nthat  the  parties  could  pursue  an  amicable  resolution.    After  being  informed on \nJune  15,  2017,  that  the  parties  had  reached  a  compromise  on  Claimant’s \nentitlement  to  additional  indemnity  benefits  and  would  be  preparing  an  agreed \norder  for  his  approval,  Judge  Blood  again  canceled  the  hearing.  On  June  30, \n2017,  he  entered  an  agreed  order  that  provided  for  the  payment  to  Claimant  of \n$70,000.00 in wage loss disability benefits and a controverted fee to her counsel. \n No further action on the claim took place until July 21, 2023.  On that date, \ncurrent  counsel  for  Respondents  No.  1  entered  his  appearance  and  filed  the \ninstant  Motion  to  Dismiss.    Therein,  it  was  argued  that  dismissal  was  warranted \nunder  AWCC  R.  099.13 and  Ark.  Code  Ann.  § 11-9-702  (Repl.  2012)  because \nthere has been no activity on the file “in quite some time.”  On July 31, 2023, my \noffice wrote  Claimant, asking for a response to the motion  within 20 days.  This \ncorrespondence was sent to her by first-class and certified mail to the address for \nher listed in the file and on her Form AR-C.  However, both of these items were \nreturned to the Commission, unclaimed/undelivered. \n\nDUNEVANT – G307750 \n \n5 \n A  hearing  on  the  Motion  to  Dismiss  was  scheduled on  August  24,  2023, \nfor  October  20,  2023,  at  1:00  p.m.  at  the  Craighead  County  Courthouse  in \nJonesboro.    The  Notice  of  Hearing  was  sent  to  Claimant  (using  the  same \naddress  as  before)  by  certified  and  first-class  mail.    As  before,  both  items  were \nreturned, unclaimed/undelivered. \n The hearing on the Motion to Dismiss proceeded as scheduled on October \n20,  2023.    Again,  Claimant  failed  to  appear.    Respondents  No.  1  appeared \nthrough counsel and argued for dismissal of the action under the aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n3. Respondents   No.  1  have  proven  by  a  preponderance  of  the \nevidence  that  Claimant  has  failed  to  prosecute  her  claim  under \nAWCC R. 099.13. \n4. Respondents’ Motion to Dismiss should be, and hereby is, granted. \n5. This claim is hereby dismissed without prejudice. \n\nDUNEVANT – G307750 \n \n6 \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  (Emphasis added) \n As  the  moving  party,  Respondents  No.  1  under  Ark.  Code  Ann.  §  11-9-\n705(a)(3)  (Repl.  2012)  must  prove  their  entitlement  to  the  relief  requested–\ndismissal  of  this  claim–by  a  preponderance  of  the  evidence.    This  standard \nmeans  the  evidence  having  greater  weight  or  convincing  force.   Barre  v. \nHoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., \n212 Ark. 491, 206 S.W.2d 442 (1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin  pursuit  of it—including appearing  at  the  October 20,  2023,  hearing  to  argue \nagainst  its  dismissal—since  the  July  3,  2017,  entry  of  the  agreed  order.    Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13.  Because \nof this finding, it is unnecessary to address the applicability of  Ark. Code Ann. § \n11-9-702 (Repl. 2012). \n\nDUNEVANT – G307750 \n \n7 \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer  Co.,  2005  AR Wrk.  Comp. \nLEXIS  510,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”    (Emphasis  added)(citing Professional  Adjustment  Bureau  v.  Strong, \n75 Ark. 249, 629 S.W.2d 284 (1982)).  Respondents No. 1 at the hearing asked \nfor a dismissal with prejudice.  But based on the above authorities, I find that the \ndismissal of the claim should be and hereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":11053,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G307750 JULIE DUNEVANT, EMPLOYEE CLAIMANT ST. BERNARD MED. CTR., SELF-INSURED EMPLOYER RESPONDENT NO. 1 RISK MGMT. RESOURCES, THIRD-PARTY ADM’R RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED OCTOBER 26, 2023 Hear...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T23:02:10.412Z"},{"id":"alj-H108590-2023-10-26","awccNumber":"H108590","decisionDate":"2023-10-26","decisionYear":2023,"opinionType":"alj","claimantName":"Katrina Edwards","employerName":"Dermott City Nursing Home","title":"EDWARDS VS. DERMOTT CITY NURSING HOME AWCC# H108590 OCTOBER 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/EDWARDS_KATRINA_H108590_20231026.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EDWARDS_KATRINA_H108590_20231026.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H108590 \n \nKATRINA A. EDWARDS, EMPLOYEE                  CLAIMANT \n \nDERMOTT CITY NURSING HOME, EMPLOYER             RESPONDENT \n \nMUNICIPAL LEAGUE WORKERS’ COMPENSATION \nPROGRAM, CARRIER/TPA                       RESPONDENT \n \n \nOPINION FILED 26 OCTOBER 2023 \n \n \nHearing before Administrative Law Judge JayO. Howe in McGehee, Desha County, \nArkansas, on Wednesday, 26 October 2023. \n \nPro se claimant, Katrina A. Edwards, failed to appear. \n \nMs. Mary K. Edwards, Attorney-at-Law of North Little Rock, Arkansas, appeared \non behalf of respondents. \n \nSTATEMENT OF THE CASE \n A  hearing  was  held  in  the  above-styled  matter  on  26  October 2023,  in  McGehee, \nArkansas,  on  Respondents’ Motion to Dismiss  this matter.   This claim  involves  an  alleged \nworkplace injury occurring on 26 August 2021.  \n A Form AR-C was filed with the Commission on 20 October 2021. On 5 August 2022, \nthe  respondents  moved  for  a  dismissal  without  prejudice  for  the  claimant’s  failure  to \nprosecute this claim. The claimant opposed that Motion by way of an email sent to the Clerk \nof the Commission on 31 August 2022.  In a letter dated 2 September 2022, the Commission \nstated that the Motion would be held in abeyance and issued Prehearing Questionnaires. \n A brief prehearing telephone conference was noted in an email to the parties dated 8 \nNovember 2022. That email recapitulated the claimant’s expressed intention to hire an \nattorney and set a follow-up conference on 13 December 2022. A subsequent email, dated 13 \n\nK. EDWARDS- H108590 \n2 \n \nDecember 2022, notes that the claimant failed to participate in the call. The respondents then \nrenewed their Motion to Dismiss on 11 August 2023. \nThe respondents appeared today to present their Motion to Dismiss, arguing that the \nclaimant  failed  to  prosecute  her  claim.  The  claimant  did  not  appear  to  argue  against \ndismissal. Based on the record, available evidence, and argument of counsel, I find that the \nMotion  to  Dismiss  should  be  granted  and  that  the  matter  should  be  dismissed  without \nprejudice.  \nORDER \n Pursuant to the above, I find that the Motion to Dismiss should be granted and that \nthis matter should be dismissed without prejudice at this time.   \nSO ORDERED. \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2421,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108590 KATRINA A. EDWARDS, EMPLOYEE CLAIMANT DERMOTT CITY NURSING HOME, EMPLOYER RESPONDENT MUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM, CARRIER/TPA RESPONDENT OPINION FILED 26 OCTOBER 2023 Hearing before Administrative Law Judge JayO. Howe in McGehee, ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:02:12.483Z"},{"id":"alj-H302982-2023-10-26","awccNumber":"H302982","decisionDate":"2023-10-26","decisionYear":2023,"opinionType":"alj","claimantName":"Laura Gaylin","employerName":"Knight Transportation Inc","title":"GAYLIN VS. KNIGHT TRANSPORTATION INC. AWCC# H302982 OCTOBER 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GAYLIN_LAURA_H302982_20231026.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GAYLIN_LAURA_H302982_20231026.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H302982 \n \nLAURA A. GAYLIN, EMPLOYEE   CLAIMANT \n \nKNIGHT TRANSPORTATION INC., EMPLOYER RESPONDENT \n \nSEDWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED OCTOBER 26, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas; although not \nappearing at the hearing. \n \nRespondents are represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas \n \nOPINION/ORDER \n \n On  May  8,  2023,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on  April  26, \n2023.   Claimant was represented at the time by Jarid M. Kinder, who remains her attorney of record.     \nOn June 27, 2023, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed her Form AR-C with the Commission, but she had not made a request \nfor a hearing in that time.  Claimant’s attorney advised the Commission he had no objection to the \nMotion to Dismiss and would not attend the hearing.  A hearing on respondent’s Motion to Dismiss \nwas scheduled for October 3, 2023.  Notice of the scheduled hearing was sent to claimant by certified \nmail  at  the  last  known address in the Commission’s file. The notice was  delivered  to  claimant  on \nAugust 17, 2023.  Claimant did not respond to Respondent’s motion and did not appear in person at \nthe hearing on October 3, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the respondent’s motion, the Claimant’s lack \n\nGaylin-H302982 \n \n2 \n \nof response and failure to attend the hearing for the Respondent’s motion, as well as all other matters \nproperly before the Commission, I find that Respondent’s Motion to Dismiss this claim should be \nand hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2275,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302982 LAURA A. GAYLIN, EMPLOYEE CLAIMANT KNIGHT TRANSPORTATION INC., EMPLOYER RESPONDENT SEDWICK CLAIMS MANAGEMENT SERVICES INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED OCTOBER 26, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in F...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:02:14.539Z"},{"id":"alj-H207557-2023-10-26","awccNumber":"H207557","decisionDate":"2023-10-26","decisionYear":2023,"opinionType":"alj","claimantName":"Kari Mogensen","employerName":"Southern Glazers Wine & Spirit","title":"MOGENSEN VS. SOUTHERN GLAZERS WINE & SPIRIT AWCC# H207557 OCTOBER 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Mogensen_Kari_H207557_20231026.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Mogensen_Kari_H207557_20231026.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207557 \n \nKARI MOGENSEN, EMPLOYEE  CLAIMANT \n \nSOUTHERN GLAZERS WINE & SPIRIT, \nEMPLOYER                                                                                                RESPONDENT \n \nTRUMBULL INSURANCE CO. \nINSURANCE COMPANY                                                                          RESPONDENT  \n \nTHE HARTFORD \nTHIRD PARTY ADMINISTRATOR                                                                          RESPONDENT \n \n \nOPINION FILED OCTOBER 26, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  October  25,  2023,  in  Little \nRock, Pulaski County, Arkansas. \n \nClaimant  was  represented  by  Ms.  Laura  Beth  York,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nThe Respondents were represented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents on August 14, 2023.  A hearing on the motion was conducted on October \n25, 2023, in Little Rock, Arkansas.  Claimant was represented by Ms. Laura Beth York \nwho waived her appearance and did not object to the dismissal without prejudice. The \nClaimant   herself   was   not   personally   present   at   the   hearing.   Respondents   were \nrepresented at the hearing by Mr. Jarrod Parrish who argued the motion.  In addition to \nRespondent’s argument,   the   record   consists   of Respondent’s   Exhibit  1   and the \nCommission’s file–which has been incorporated herein in its entirety by reference. \n\nMOGENSEN H207557 \n \n \n2 \n The  evidence  reflects  that Claimant’s  injury  occurred  on August  5,  2022,  where \nshe  injured  her  right  knee  and  back  while  carrying  dehumidifier  buckets. This  incident \nallegedly occurred during the course and scope of her employment. Since filing her Form \nC on October 21, 2022, this case has been inactive until Respondents filed a Motion to \nDismiss due to the lack of prosecution. A hearing was held on October 25, 2023, in Little \nRock, Arkansas on the Motion to Dismiss. As previously stated, the Claimant’s attorney, \nLaura Beth York, waived her appearance and was not present for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \n\nMOGENSEN H207557 \n \n \n3 \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice for the Motion to  Dismiss hearing under Rule 13. I further find \nthat Claimant has abridged this rule. Thus I find Respondent’s Motion should be granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5093,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207557 KARI MOGENSEN, EMPLOYEE CLAIMANT SOUTHERN GLAZERS WINE & SPIRIT, EMPLOYER RESPONDENT TRUMBULL INSURANCE CO. INSURANCE COMPANY RESPONDENT THE HARTFORD THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED OCTOBER 26, 2023 Hearing before Administrative L...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T23:02:16.666Z"},{"id":"alj-H105648-2023-10-26","awccNumber":"H105648","decisionDate":"2023-10-26","decisionYear":2023,"opinionType":"alj","claimantName":"Lashawn Rose","employerName":"Desha County","title":"ROSE VS. DESHA COUNTY AWCC# H105648 OCTOBER 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ROSE_LaSHAWN_H105648_20231026.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROSE_LaSHAWN_H105648_20231026.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H105648 \n \nLaSHAWN R. ROSE, EMPLOYEE                  CLAIMANT \n \nDESHA COUNTY, EMPLOYER             RESPONDENT \n \nASSOCIATION OF ARKANSAS COUNTIES – WCT,  \nCARRIER / AAC RISK MANAGEMENT SERVICES, TPA          RESPONDENT \n \n \nOPINION FILED 26 OCTOBER 2023 \n \n \n \nHearing before Administrative Law Judge JayO. Howe in McGehee, Desha County, \nArkansas, on Wednesday, 26 October 2023. \n \nMr. Mark Alan Peoples, Attorney-at-Law in Little Rock, Arkansas, represents the \nclaimant and waived his appearance. \n \nMr.  Mickael  E.  Ryburn,  Attorney-at-Law  in  Little  Rock,  Arkansas,  appeared  on \nbehalf of respondents. \n \nSTATEMENT OF THE CASE \n A  hearing  was  held  in  the  above-styled  matter  on  26  October 2023,  in  McGehee, \nArkansas,  on  respondents’ Motion  to  Dismiss  this  matter.   This  claim  involves  an  alleged \nworkplace injury occurring on 28 June 2021. A First Report of Injury form was filed with the \nCommission on 14 July 2021. \n The  Commission  received  a  Form AR-C  on 11  January 2022.  Subsequently,  the \nclaimant  received  treatment  for  the  injury  and  was  eventually  released  to  full-duty.  An \nimpairment rating was assigned and paid accordingly by the respondents.  \nOn 30 August 2023, the respondents moved for a dismissal without prejudice for the \nclaimant’s  failure  to  prosecute this  claim. As  argued  in  the  respondents’ Motion,  the  file \nreflects no request for a hearing on the claim in the relevant time preceding the filing of that \nMotion.  Appropriate notice of the Motion was sent to the claimant, and on 8 September 2023 \n\nL. ROSE- H10564 \n2 \n \nshe communicated, through counsel, that she did not intend to resist the Motion so long as \nthe dismissal was without prejudice. After the hearing on the Motion was set and notice was \nsent,  the  claimant  communicated  on  5  October  2023,  again  through  counsel,  that  she \nintended to waive her appearance at the hearing.  \nThe respondents appeared today to present their unopposed Motion to Dismiss. Based \non the record, available evidence, and argument of counsel, I find that the Motion to Dismiss \nshould be granted and that the matter should be dismissed without prejudice.  \nORDER \n Pursuant to the above, I find that the Motion to Dismiss should be granted and that \nthis matter should be dismissed without prejudice at this time.   \nSO ORDERED. \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2534,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H105648 LaSHAWN R. ROSE, EMPLOYEE CLAIMANT DESHA COUNTY, EMPLOYER RESPONDENT ASSOCIATION OF ARKANSAS COUNTIES – WCT, CARRIER / AAC RISK MANAGEMENT SERVICES, TPA RESPONDENT OPINION FILED 26 OCTOBER 2023 Hearing before Administrative Law Judge JayO. Howe in M...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:02:18.723Z"},{"id":"alj-H207326-2023-10-25","awccNumber":"H207326","decisionDate":"2023-10-25","decisionYear":2023,"opinionType":"alj","claimantName":"Charity Coles","employerName":null,"title":"COLES VS.FAMILY VIOLENCE PREVENTION AWCC# H207326 OCTOBER 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//COLES_CHARITY_H207326_20231025.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COLES_CHARITY_H207326_20231025.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H207326 \n \nCHARITY D. COLES, EMPLOYEE           CLAIMANT \n \nFAMILY VIOLENCE PREVENTION, EMPLOYER          RESPONDENT \n \nFIRSTCOMP INSURANCE COMPANY \nMARKEL SEVICE, INC, CARRIER/TPA            RESPONDENT \n            \nOPINION FILED OCTOBER 25, 2023 \n \nHearing  before  Administrative  Law  Judge  James  D.  Kennedy  in   Batesville, \nIndependence County, Arkansas. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Mr. Randy P. Murphy, Attorney-at-\nLaw of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on October 25, 2023, in Batesville, \nArkansas, on  respondent’s  Motion  to Dismiss  for  failure  to  prosecute  pursuant  to  Ark. \nCode Ann. §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  The \nclaimant was pro se and failed to appear for the hearing.  Claimant had been originally \nrepresented by Laura Beth York, who had been allowed to withdraw by an Order of the \nFull Commission, dated December 1, 2022.  The claimant had alleged she had sustained \na work-related injury entitling her to rehabilitation, medical expenses, and pay from lost \ntime at work.  The claimant has failed to take any action since requesting a hearing back \non  or  about  December  15,  2022,  and  apparently    talking  to  a  legal  advisor  with  the \nCommission.  \nAppropriate notice was provided to the claimant notifying her that a hearing on the \nMotion to Dismiss was set for October 25, 2023, in Batesville, Arkansas.  The claimant \n\nCOLES – H207326 \n \n2 \n \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nRandy P. Murphy appeared on behalf of the respondents and asked that the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent,  I  find  that  this  matter  should  be  dismissed  without  prejudice,  for failure  to \nprosecute  pursuant  to  Ark.  Code  Ann.  §  11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2547,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207326 CHARITY D. COLES, EMPLOYEE CLAIMANT FAMILY VIOLENCE PREVENTION, EMPLOYER RESPONDENT FIRSTCOMP INSURANCE COMPANY MARKEL SEVICE, INC, CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 25, 2023 Hearing before Administrative Law Judge James D. Kennedy in Bat...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:02:02.001Z"},{"id":"alj-H207959-2023-10-25","awccNumber":"H207959","decisionDate":"2023-10-25","decisionYear":2023,"opinionType":"alj","claimantName":"Jonathan Gregory","employerName":"White Hall School District","title":"GREGORY VS. WHITE HALL SCHOOL DISTRICT AWCC# H207959 OCTOBER 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GREGORY_JONATHAN_H207959_20231025.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GREGORY_JONATHAN_H207959_20231025.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H207959 \n \nJONATHON GREGORY, EMPLOYEE                   CLAIMANT \n \nWHITE HALL SCHOOL DISTRICT, EMPLOYER             RESPONDENT \n \nAR SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA              RESPONDENT \n \n \nOPINION FILED 25 OCTOBER 2023 \n \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on Wednesday, 25 October 2023. \n \nMr. Mark Alan Peoples, Attorney-at-Law of Little Rock, Arkansas, represents the \nclaimant and waived his appearance. \n \nMs. Melissa Wood, Attorney-at-Law of Little Rock, Arkansas, appeared on behalf of \nrespondents. \n \nSTATEMENT OF THE CASE \n A  hearing  was  held  in  the  above-styled  claim  on  25  October 2023,  in  Little  Rock, \nArkansas,  on  respondents’ Motion  to  Dismiss  this  matter.   This  claim  involves  an  alleged \nworkplace injury occurring on 25 August 2022.  \n A Form AR-C was filed with the Commission on 9 November 2022 by the claimant’s \ncounsel  Mr.  Mark  Alan  Peoples.    A Form AR-2  was  filed  with  the  Commission  on 10 \nNovember 2022 accepting the medical-only claim.  \nIn January of 2023, the claimant requested a hearing before an Administrative Law \nJudge.  That request was withdrawn via an email from Mr. Peoples on 21 February 2023.  A \nChange  of  Physician was  granted  by  the  Medical  Cost  Containment Division  on  10  March \n2023. \nOn 15 August 2023, the respondents moved for a dismissal without prejudice for the \nclaimant’s  failure  to  prosecute  his  claim. As  argued  in  the  respondents’ Motion,  the  file \n\nJ. GREGORY- H207959 \n2 \n \nreflects no request for a hearing on the claim in the relevant time preceding the filing of that \nMotion.  Appropriate notice of the Motion was sent to the claimant, and on 16 August 2023 \nhe communicated, through counsel, that he did not intend to resist the Motion so long as the \ndismissal was without prejudice.    After  the  hearing  on the  Motion was set  and  notice was \nsent,  the  claimant  communicated  on  19  September  2023,  again  through  counsel,  that  he \nintended to waive his appearance at the hearing.  \nThe respondents appeared today to present their unopposed Motion to Dismiss. Based \non the record, available evidence, and argument of counsel, I find that the Motion to Dismiss \nshould be granted and that the matter should be dismissed without prejudice.  \nORDER \n Pursuant to the above, I find that the Motion to Dismiss should be granted and that \nthis matter should be dismissed without prejudice at this time.   \nSO ORDERED. \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2688,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207959 JONATHON GREGORY, EMPLOYEE CLAIMANT WHITE HALL SCHOOL DISTRICT, EMPLOYER RESPONDENT AR SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA RESPONDENT OPINION FILED 25 OCTOBER 2023 Hearing before Administrative Law Judge JayO. Howe in Little Rock, Pulaski County, ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:02:04.150Z"},{"id":"alj-H208593-2023-10-25","awccNumber":"H208593","decisionDate":"2023-10-25","decisionYear":2023,"opinionType":"alj","claimantName":"Miller Wright","employerName":"Tractor Supply Co","title":"WRIGHT VS. TRACTOR SUPPLY CO. AWCC# H208593 OCTOBER 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Wright_Miller_H208593_20231025.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Wright_Miller_H208593_20231025.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208593 \n \nMILLER D. WRIGHT, EMPLOYEE  CLAIMANT \n \nTRACTOR SUPPLY CO., \nEMPLOYER                                                                                                RESPONDENT \n \nSTARR SPECIALTY INSURANCE CO. \nINSURANCE COMPANY                                                                          RESPONDENT  \n \nSTARR SPECIALTY INSURANCE CO. \nTHIRD PARTY ADMINISTRATOR                                                                          RESPONDENT \n \n \nOPINION FILED OCTOBER 25, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  October 24,  2023  in  Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented himself, Pro Se. \n \nThe  Respondents  were  represented  by  Mr.  Eric  Newkirk,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents on August 3, 2023.  A hearing on the motion was conducted on October 24, \n2023,  in  Little  Rock,  Arkansas.    Claimant  represented  himself,  Pro  Se.  However,  the \nClaimant was not present at the hearing. Respondents were represented at the hearing \nby  Mr.  Eric  Newkirk,  Attorney  at  Law,  of  Little  Rock,  Arkansas.    In  addition  to \nRespondent’s argument,   the   record   consists   of Respondent’s   Exhibit  1   and the \nCommission’s file–which has been incorporated herein in its entirety by reference. \n The  evidence  reflects  that Claimant’s  injury  occurred  on December  20,  2021, \nwhere he tried to retrieve a cat that got out of a kennel. The cat bit and scratched his right \npointer  finger,  right  thumb,  and  right  wrist. This  incident  allegedly  occurred  during  the \n\nMILLER H208593 \n \n \n2 \ncourse and scope of his employment. Since filing his Form C on December 9, 2022, this \ncase  has  been  inactive  until  Respondents  filed  a  Motion  to  Dismiss  due  to  the  lack  of \nprosecution.  A hearing  was  held  on  October 24,  2023,  in  Little  Rock,  Arkansas  on  the \nMotion to Dismiss. As previously stated, the Claimant was not present for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n\nMILLER H208593 \n \n \n3 \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice for the Motion to  Dismiss hearing under Rule 13. I further find \nthat Claimant has abridged this rule. Thus I find Respondent’s Motion to Dismiss should \nbe granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5018,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208593 MILLER D. WRIGHT, EMPLOYEE CLAIMANT TRACTOR SUPPLY CO., EMPLOYER RESPONDENT STARR SPECIALTY INSURANCE CO. INSURANCE COMPANY RESPONDENT STARR SPECIALTY INSURANCE CO. THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED OCTOBER 25, 2023 Hearing before A...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:4"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T23:02:06.272Z"},{"id":"alj-H205173-2023-10-24","awccNumber":"H205173","decisionDate":"2023-10-24","decisionYear":2023,"opinionType":"alj","claimantName":"Mable Bealer","employerName":"Bridge 2 Success","title":"BEALER VS. BRIDGE 2 SUCCESS AWCC# H205173 OCTOBER 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Bealer_Mable_H205173_20231024.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bealer_Mable_H205173_20231024.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H205173 \n \nMABLE J. BEALER, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nBRIDGE 2 SUCCESS,   \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nCHURCH MUTUAL INSURANCE COMPANY,  \nINSURANCE CARRIER                                                                                        RESPONDENT \n  \nESIS, INC., \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED OCTOBER 24, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, failed to appear at the hearing.  \n \nRespondents represented by the Honorable Eric Newkirk, Attorney at Law, Little Rock, Arkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on October 17, 2023 in the above-captioned case pursuant to Dillard \nv. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), for a determination \nof whether this claim for Arkansas workers’ compensation benefits should be dismissed due to the \nClaimant’s failure to prosecute it timely under the provisions of Ark. Code Ann. §11-9-702 (Repl. \n2012) and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was attempted on all parties to their last known address, \nin the manner prescribed by law.   \nThe record consists of the transcript of the October 17, 2023, hearing and the documents \ncontained therein.  In addition, the entire Commission’s file has been made a part of the record.  It \n\nBealer – H 205173 \n \n2 \n \nis hereby incorporated herein by reference.  The Respondents introduced into evidence an exhibit \nconsisting of thirty-four numbered pages, which has been marked accordingly.    \n                                                                    Discussion \n On September 9, 2022, the Claimant’s attorney filed a Form AR-C with the Commission \nasserting the Claimant’s entitlement to Arkansas workers’ compensation benefits.  He alleged that \nthe Claimant sustained compensable injuries to her right knee, back, and other body parts on June \n23, 2022, while working for the respondent-employer.  The Claimant’s attorney asserted that she \nwas entitled to both initial and additional workers’ compensation benefits.  Specifically, counsel \nchecked  off  all  the  boxes  for  every  conceivable  benefit  allowed  by  law  in  connection  with  this \nclaim. \n The respondent-insurance carrier filed a Form AR-2 with the Commission on October 11, \n2022,  controverting  the  within  claim.    Specifically,  the  claims  adjuster  explicitly  wrote  on  this \ndocument, the  following:  “Denied  as  there  is  no  evidence  of  injury.    Claim  does  not  meet  the \nrequirements for compensability under AR law.”     \nAs a result, the prehearing process was started in this matter.  On November 16, 2022, a \nprehearing telephone conference was held on this claim, and on that same day a Prehearing Order \nwas entered wherein the claim for scheduled for a full hearing.  The parties agreed to litigate this \nclaim on January 24, 2023. \nHowever, on January 11, 2023, the Claimant’s attorney sent an e-mail to the Commission, \nasking to be relieved as counsel record for the Claimant in this matter.  On January 24, 2023, the \nClaimant’s attorney was allowed to withdraw from representing the Claimant.  Also, per counsel’s \ncorrespondence of January 11, he asked that the hearing be removed from the docket, which was \ndone.  Hence, the case file was returned to the Commission’s general files.    \n\nBealer – H 205173 \n \n3 \n \nSince this time, the Claimant has taken no action whatsoever to pursue her claim.     \nTherefore, on August 14, 2023, the Respondents filed a Respondents’ Motion to Dismiss \nthe  within  claim  due  to  a  lack  of  prosecution  under  Ark.  Code  Ann.  11-9-702  (a)(4)  and  Rule \n099.13  of  this  Commission.    The  Respondents’  pleading  was  accompanied  by a  certificate  of \nservice to the Claimant, which showed they mailed it to her.   \nThe  Commission  sent  a  letter to  the  Claimant  giving  her  twenty  days  to  file  a  written \nresponse to the Respondents’ motion for dismissal.  This letter-notice was sent to the Claimant by \nboth certified and first-class mail.  The information received from the United States Postal Service \nshows that this item has not been claimed by the Claimant.   However, the notice sent by first-class \nmail has not been returned to the Commission.            \n  Pursuant to a Hearing Notice dated August 31, 2023, the Commission notified the parties \nthat a hearing was scheduled to address the Respondents’ motion to dismiss this claim due to a \nlack  of  prosecution.    Said  hearing  was  scheduled  for  October  17,  2023,  in Little  Rock at  the \nArkansas Workers’ Compensation Commission.  The notice was sent to the Claimant via certified \nand first-class mail.   \nThe information received by the Commission from the Postal Service shows that they were \nunable to find any delivery information in their records for the notice of hearing, which was mailed \nto the Claimant.  However, the notice sent to the Claimant by regular mail has not been returned \nto  the  Commission.  Based  on  the  foregoing,  the  Claimant  was  provided  proper  notice  of  the \ndismissal hearing.   \nStill, there has been no response from the Claimant.  Subsequently, a hearing was in fact \nconducted  on  the  Respondents’  motion  as  scheduled.  The  Claimant  failed  to  appear  at  the \ndismissal hearing.  However, the Respondents appeared through their attorney.   \n\nBealer – H 205173 \n \n4 \n \nCounsel explicitly noted that the Claimant has failed to promptly prosecute her claim for \nworkers’ compensation benefits since her attorney was allowed to withdraw from representing her \nin this matter, which was done in January 2023.  Counsel also noted that he took the Claimant’s \ndeposition,  but  she  refused  to  answer  questions  about  her  medical  providers.    Although  the \nClaimant has not responded to the notices of this Commission, she contacted the Respondents’ \nattorney upon receipt of  the motion for dismissal of the claim.  However, the Claimant has still \nfailed to object to the dismissal of her claim.  Therefore, the Respondents’ counsel asked that the \nclaim be dismissed due to a lack of prosecution based on all the foregoing, and reasons stated in \nhis motion and brief.  \nThe record before me proves that the Claimant has failed to promptly prosecute her claim \nfor workers’ compensation benefits.  Moreover, the Claimant did not appear at the hearing to object \nto her claim being dismissed, and she has not responded to the notices of this Commission.  Under \nthese circumstances, I am compelled to find that the evidence preponderates that the Claimant has \nabandoned  her  claim.  Accordingly,  per  Ark.  Code  Ann.  §11-9-702  and  Rule  099.13  of  this \nCommission, I find that this claim should be and is hereby respectfully dismissed without prejudice \nto the refiling of it within the limitation period specified by law.   \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim due to a lack of prosecution, for which a hearing was held. \n \n3. The Claimant has not made a request for a hearing since her attorney was \nallowed  to  withdraw  from  representing  her,  which  was  done  more  than \n\nBealer – H 205173 \n \n5 \n \nsome six months ago.  Hence, the evidence preponderates that the Claimant \nfailed to prosecute her claim for workers’ compensation benefits.     \n  \n4. Appropriate Notice of the dismissal hearing was tried on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ Motion to Dismiss this claim for a lack of prosecution is \nhereby granted, without prejudice, pursuant to Ark. Code Ann. §11-9-702 \nand  Commission  Rule  099.13,  to  the  refiling  of  it  within  the  limitation \nperiod specified by law.  \n \nORDER \nIn accordance with the findings set forth above, this claim is hereby dismissed pursuant to \nArk.  Code  Ann.  §11-9-702  and  Arkansas Workers’  Compensation  Commission  Rule  099.13, \nwithout prejudice, to the refiling of it, within the limitation period specified by law.  \nIT IS SO ORDERED. \n \n  \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":9132,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H205173 MABLE J. BEALER, EMPLOYEE CLAIMANT BRIDGE 2 SUCCESS, EMPLOYER RESPONDENT CHURCH MUTUAL INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT ESIS, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED OCTOBER 24, 2023 Hearing held before Administrativ...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T23:01:53.638Z"},{"id":"alj-H203108-2023-10-24","awccNumber":"H203108","decisionDate":"2023-10-24","decisionYear":2023,"opinionType":"alj","claimantName":"Bonnie Ray","employerName":"Central Arkansas Nursing","title":"RAY VS. CENTRAL ARKANSAS NURSING AWCC# H203108 OCTOBER 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/RAY_BONNIE_H203108_20231024.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RAY_BONNIE_H203108_20231024.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H203108 \n \nBONNIE RAY, Employee          CLAIMANT \n \nCENTRAL ARKANSAS NURSING, Employer      RESPONDENT \n \nINDEMNITY INS. OF NORTH AMERICA, Carrier/TPA  RESPONDENT \n \n \n OPINION FILED OCTOBER 24, 2023  \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at the hearing. \n \nRespondent represented by ERIC NEWKIRK, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn April 22, 2022, the claimant filed an AR-C requesting various compensation benefits \nin  which  she  alleged  an  injury  to  her  head,  right  elbow,  tailbone,  right  hip,  ribs,  and  right  foot. \nThe  claim  was  accepted  as  medical  only.  There  has  been  no  request  for  a  hearing  or  additional \nactivity by the claimant since the filing of the Form AR-C.  \nOn July 11, 2023, the respondents filed a Motion to Dismiss requesting that this claim be \ndismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for September  26,  2023.  Notice  of \nthat  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on  August  23, \n2023. United States Postal Department records indicate that claimant received and signed for the \nnotice on August 29, 2023. Despite having received notice of the scheduled hearing, the claimant \nfailed to appear at the hearing and has failed to respond to the motion in any form or manner. \n\nRay – H203108 \n \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED.    \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2518,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H203108 BONNIE RAY, Employee CLAIMANT CENTRAL ARKANSAS NURSING, Employer RESPONDENT INDEMNITY INS. OF NORTH AMERICA, Carrier/TPA RESPONDENT OPINION FILED OCTOBER 24, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["hip"],"fetchedAt":"2026-05-19T23:01:55.690Z"},{"id":"alj-H301025-2023-10-24","awccNumber":"H301025","decisionDate":"2023-10-24","decisionYear":2023,"opinionType":"alj","claimantName":"Daniel See","employerName":null,"title":"SEE VS.SAINT JEAN INDUSTRIES INC. AWCC# H301025 OCTOBER 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SEE_DANIEL_H301025_20231024.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SEE_DANIEL_H301025_20231024.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H301025 \n \nDANIEL SEE, EMPLOYEE            CLAIMANT \n \nSAINT JEAN INDUSTRIES INC., EMPLOYER           RESPONDENT \n \nAMERISURE MUTUAL, CARRIER/TPA            RESPONDENT \n            \nOPINION FILED OCTOBER 24, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Ms. Karen H. McKinney, Attorney-\nat-Law of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on October 24, 2023, in Little Rock, \nArkansas,  on  respondents’  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to  Ark. \nCode Ann. §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  The \nclaimant was pro se and failed to appear for the hearing.  The  claimant had alleged he \nhad  sustained  an  injury  of  right-hand  numbness  that  was  related  to  his  work  on \nSeptember 23, 2022.     Respondents  filed  a  First  Report  of Injury and later  filed an \nAR-  2  on  or  about  February  15,  2023,  denying  the  claim.  The  claimant  contacted  the \nLegal Advisor Division of the Arkansas Workers’ Compensation Commission on February \n17, 2023, and requested a hearing for additional benefits.  Respondents then propounded \nwritten discovery to the claimant on March 9, 2023, and the claimant has failed to file a \nresponse to the discovery as of the date of the hearing.  A Prehearing Questionnaire was \nsent  to  the  parties  on  March  31,  2023,  and  the  respondents  filed  a  response,  but  the \n\nSEE – H301025 \n \n2 \n \nclaimant failed to file a response to the questionnaire.  The claimant has failed to take any \naction since requesting a hearing back on February 17, 2023.  A Motion to Dismiss was \nfiled by the respondents in this matter on August 22, 2023.  \nAppropriate notice was provided to the claimant notifying him that a hearing on the \nMotion to Dismiss was set for October 24, 2023, in Little Rock, Arkansas.  The claimant \ndid not file a response and failed to appear on the hearing date.  At the time of the hearing, \nKaren H. McKinney appeared on behalf of the respondents and asked that the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent,  I  find  that  this  matter  should  be  dismissed  without  prejudice,  for failure  to \nprosecute  pursuant  to  Ark.  Code  Ann.  §  11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3019,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H301025 DANIEL SEE, EMPLOYEE CLAIMANT SAINT JEAN INDUSTRIES INC., EMPLOYER RESPONDENT AMERISURE MUTUAL, CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 24, 2023 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski County, Arkansas. ...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:01:57.755Z"},{"id":"alj-G904931-2023-10-24","awccNumber":"G904931","decisionDate":"2023-10-24","decisionYear":2023,"opinionType":"alj","claimantName":"Porter Sims","employerName":"Bryant School District","title":"SIMS VS. BRYANT SCHOOL DISTRICT AWCC# G904931 OCTOBER 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SIMS_PORTER_G904931_20231024.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SIMS_PORTER_G904931_20231024.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G904931 \n \n \nPORTER R. SIMS,  \nEMPLOYEE                                                   CLAIMANT \n \nBRYANT SCHOOL DISTRICT,  \nEMPLOYER                                                     RESPONDENT \n            \nARK. SCHOOL BOARD ASS’N  \nWORKERS’ COMPENSATION TRUST/ \nARK. SCHOOL BOARD ASS’N,                                        RESPONDENT              \nINSURANCE CARRIER/TPA                                                                                                                      \n                                   \nOPINION AND ORDER FILED OCTOBER 24, 2023 \n \nHearing conducted on July 26, 2023, before the Arkansas Workers’ Compensation Commission \n(the Commission), Administrative Law Judge (ALJ) Mike Pickens in Little Rock, Pulaski County, \nArkansas.  \n \nThe  claimant was  represented  by  the  Honorable Daniel  E.  Wren,  Wren  Law  Firm,  Little  Rock, \nPulaski County, Arkansas.  \n \nThe respondents were represented by the Honorable Karen H. McKinney, Barber Law Firm, Little \nRock, Pulaski County, Arkansas. \n \nINTRODUCTION \n \nIn the prehearing order filed June 1, 2023, the parties have agreed to the following \nstipulations, which they affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed at  all  relevant  times \nincluding December   20,   2018,   when   the   claimant sustained   an   admittedly \ncompensable injury to his left shoulder for which the respondents paid medical and \nindemnity benefits. \n \n3. The claimant’s average weekly wage (AWW) was $871.00, which is sufficient to \nentitle him to weekly compensation rates of $581.00 for temporary total disability \n(TTD), and $436.00 for permanent partial disability (PPD) benefits. \n \n  \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n2 \n4. The  respondents controvert  the  payment  of  any  additional  medical  or  indemnity \nbenefits other than those they have already paid to date. \n  \n5. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Commission Exhibit 1 at 1-2; Reporter’s Transcript at 141-42). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were: \n  \n 1. Whether the claimant is entitled to additional medical and TTD benefits.  \n \n 2. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n 3. The parties specifically reserve any and all other issues for future litigation and/or \n  determination. \n \n(Comms’n Ex. 1 at 2; RT 142). \n \n The claimant contends he is entitled to TTD benefits from August 31, 2022, to a date yet \nto be determined. He contends that on or about December 20, 2018, he sustained an admittedly \ncompensable injury to his left shoulder when he tripped and fell while working on air conditioning \n(AC) units. The claimant has undergone three (3) surgeries between July 24, 2019, through March \n10, 2022, and has attended multiple visits for conservative treatment. The claimant contends that \non August  16,  2022, he  saw  Dr.  Smith,  who continued  his off-work status  until  September  27, \n2022. The claimant contends that on August 31, 2022, without a physician visit/examination, and \nwithout any consultation with the claimant, he received a random electronically signed note from \na licensed practical nurse (LPN) purporting to change his work status to sedentary with no use of \nhis left  arm.  At  this  point,  the  adjuster for  the  Arkansas  School  Board  Association Workers’ \nCompensation Trust, Ms. Misty Thompson, discontinued PPD benefits to the claimant. Thereafter, \non September 27, 2022, the claimant returned for his scheduled visit with Dr. Smith. The claimant \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n3 \ncontends he informed Dr. Smith he had felt a “pop” in his left shoulder while holding a wrench \nwhich caused an increase in his left shoulder pain. The claimant contends that Dr. Smith, without \nany reference to the aforementioned LPN’s August 31, 2022, note, continued to keep the claimant \non off-work status until he returned to Dr. Smith for review of an MRI Dr. Smith ordered at the \nSeptember  27,  2022,  visit.  The  claimant  contends  the respondents  have  failed  and/or refused  to \npay for any medical treatment past September 27, 2022, and have failed to pay him any additional \nTTD benefits since they terminated them on August 31, 2022. Therefore, the claimant contends he \nis entitled to payment of the subject and ongoing additional medical care, as well as TTD benefits \nfrom  the  date  the  respondents  terminated  them  on  August  31,  2022,  through  a  date  yet  to  be \ndetermined. (Comms’n Ex. 1 at 2-3; RT 142-43; RT 132-33). \n The respondents contend the claimant has received all benefits to which he is entitled. The \nclaimant was released to sedentary duty as of August 31, 2022, which the respondent-employer, \nthe Bryant School District (the school district) offered and made readily available to the claimant; \nhowever,  the  claimant  refused  this  offer  of  light  duty  employment  and  failed  and/or  refused  to \neven attempt to return to work. Consequently, the respondents contend the claimant is not entitled \nto any  additional TTD benefits since the  employer  has  work that  comports with the claimant’s \nphysical limitations and restrictions, they offered this work and made it available to him, but he \nfailed and/or refused to accept this offer and did not even attempt to perform the light duty job. In \naddition, the respondents contend that any additional medical treatment the claimant may require \nafter August 31, 2022, is not causally related to his compensable injury, but is the result of a new \ninjury and/or independent intervening cause that occurred as the result of the claimant working at \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n4 \nhome and lifting the wrench. (Comms’n Ex. 1 at 3-4; RT at 143-44; RT 129-32). \n     The  record  herein  consists  of  the  hearing  transcript  and  all  the  exhibits  therein  and/or \nattached thereto, as well as the parties’ blue-backed post-hearing briefs. \nSTATEMENT OF THE CASE \n       The claimant called two (2) witnesses at the hearing in support of his contentions: Mr. Terry \nHarper, the Facilities Maintenance Director (the maintenance director) for the school district (Mr. \nHarper), and the claimant himself, Porter R. Sims. Due to Mr. Harper’s schedule, the parties agreed \nthe claimant would call Mr. Harper as the first witness so he could be excused to attend a prior \ncommitment. (RT 18-22; 31-32). \nMr. Harper testified he became the maintenance director for the school district on July 1, \n2022, which  was after the claimant had retired, so he never personally supervised the claimant. \nBut Mr. Harper had previously held other positions within the school district and was familiar with \nthe claimant. Mr. Harper testified it is and was the school district’s practice to return all employees \nout  on  workers’ compensation  to light  duty work  that  fit within  the physical  limitations  and \nrestrictions  the workers’ doctor  placed  upon  him.  Mr.  Harper  testified he  currently has  several \nemployees working on light or sedentary duty and that he “never said no to anyone” [regarding a \ndoctor’s light duty work release of an employee who had been injured on the job]. (RT 29; 22-29) \n(Bracketed material added).  \nMr. Harper specifically testified he knew of no reason the claimant would not have been \nreturned  to  work  based  on  the  August  31,  2022  sedentary/light  duty work  release.  He  testified \nfurther he knew of no reason the claimant would not have been rehired by the district to return to \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n5 \nwork on light duty. (RT 27-32). \nThe claimant was the next witness called to the stand. The claimant is 68 years old, and he \nworked as a facilities/maintenance employee with the school district. He testified Dr. Joel Smith \nsaw him on August 16, 2022, at which time Dr. Smith’s office notes stated the claimant was to \nremain off work until seen back in the clinic. According to the claimant he did not return to the \nclinic until late September 2022 and he was unaware the facts and circumstances as to how the \nAugust 31, 2022 light duty release came about. (RT 32-43; Respondents’ Exhibit 2 at 20; RX1 at \n1-2). RX1 is a brief letter/note entitled “RTW”, and addressed, “To Whom It Mat Concern” signed \nby Dr. Joel Smith, the claimant’s treating orthopedic surgeon, which states: “Mr. Sims may return \nto work at a sedentary position only with no use of his left arm.” (RX2 at 20). The claimant testified \nhe did in fact see Dr. Smith on August 31, 2022. (RT 41; 34-41). Clinic notes after the date of the \nAugust 31, 2022, doctor’s visit and light duty work release reveal the claimant continued  to \nexperience  pain  during  PT; a  9/15/22 clinic note states  the  claimant  said  he had  experienced  a \n“pop” in his shoulder when he had rolled over in bed; and a 9/27/2022 clinic note written by Dr. \nSmith recommends the claimant, “remain off work until seen back in clinic for MRI result follow-\nup.” (RT 35-45; Claimant’s Exhibit 1 at 19; 32; 19-33). This off work status note was issued after \nthe claimant had experienced the “pop” in his shoulder rolling over in bed, and when he handed \nhis son a wrench while helping him work on a lawn mower carburetor. (RT 45-60). The claimant \nadmitted he had retired as of June 30, 2022, for his own personal reasons. (RT 117-129).     \nThe claimant testified the school district had previously returned him to work with similar \none (1)-arm work restrictions. The claimant testified the school district did not really have light \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n6 \nduty work, but he had always been returned to work and was allowed to work within his restriction \neven if that meant all he did was drive around in a truck with another employee all day. He further \ntestified  that  when  working  light  or  sedentary  duty,  the school district  abided  by  any  and  all \nphysical limitations and restrictions his doctor had placed on him. The claimant testified that he \ndid  not  have  an  issue  with  not  receiving  temporary  total  disability  benefits  as  of  his  light  duty \nrelease on August 31, 2022. The claimant testified if he was still employed with the district, he \ncould have returned to work on that release, but he retired from the district as of June 30, 2022. \n(RT 45-65). \nRegarding  the alleged “new  injury” noted  in  the PT records,  the  claimant  read  from  the \nSeptember 27, 2022, PT record that stated in pertinent part: “...and was helping his son change a \ncarburetor  on  Saturday,  holding  a  wrench,  and  felt  a  pop – pain has increased since then.” (RT \nCX1  at 32-33;  RX2  at  21-23). The  claimant  admitted he  reported  this injury to  his  physical \ntherapist and that what he told the physical therapist was true. The claimant identified a picture of \na  wrench  he  claimed  to  be  the  wrench  he  was  holding  while  helping  his  son  to  change  that \ncarburetor. Said wrench was as long as a dollar bill and very shiny. The claimant even brought that \nwrench  to  the  hearing  for  display. The  claimant  described  the  wrench  as  being  lighter  than  the \nthree-pound (3-lb.) weights used in PT. Concerning his comment that he felt a pop in his shoulder, \nthe claimant testified he had felt pops in his shoulder at other times as well such as when he was \nrolling over in bed. (RT 43-73). \n    On  cross-examination  the  claimant admitted he  would  not  have  told  the  physical  therapist \nthat he was “helping his son change a carburetor, holding a wrench, and felt a pop” if it was not \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n7 \nimportant for the doctor to know what he was doing and what caused the shoulder to pop and start \nhurting. He agreed with respondents’ counsel he told his physical therapist that he was “helping” \nhis son change a carburetor, not that he was “watching” his son change a carburetor. He admitted \nhe never said he was not doing anything but holding the wrench when the pop and pain occurred. \nRegarding his other references to his shoulder popping such as the one when he rolled over in bed, \nthe claimant acknowledged the paid after these incidents had eventually had lessened with time; \nhowever, concerning the wrench episode the claimant reported the pop caused an increase in and \na different type of pain that did not go away. (RT at 53-76). \nConcerning his experience with his previous light duty work releases at the school district \nthe claimant testified that following his first surgery, he was released to light duty work with the \nrestriction of no use of his left arm, and the school district accommodated him, and had provided \nhim work that fit within this restriction. The claimant agreed with Terry Harper’s testimony that \nthe school district had a demonstrated practice of allowing employees who had sustained work-\nrelated injuries and are released to light/sedentary duty to return to work, and to provide them work \nthat fit within their restrictions. The claimant admitted that each time he was released to work with \nno use of his left arm or no overhead duty, he was brought back to work and worked under those \nrestrictions. He testified he continued to work with restrictions until he was taken off work by Dr. \nJoel Smith for his third shoulder surgery. (RT 53-96).   \nOn  cross-examination  the  claimant also reviewed Dr. Joel Smith’s August  31,  2022, \nlight/sedentary duty work  release and  testified – initially over his attorney’s objection that was \nlater withdrawn – the light duty work release was valid. He further agreed the August 31, 2022, \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n8 \nlight duty release was electronically signed by the same person or persons that prepared and signed \nthe March 15, 2022 off work slip that was honored by the school district. (RT 58-64). \nAlso, on cross-examination the claimant admitted he had a 2000-square-feet shop on his \nproperty and that he and his son often worked there restoring a truck. The claimant recalled a June \n10, 2022, note from Carson Physical Therapy where he reported to the physical therapist, he had \nworked on his truck for three (3) hours the day before his PT appointment without any increase in \npain. He admitted  this  report  and  work  on  his  truck  occurred  after  his  third  surgery. When \nrespondents’ counsel confronted him with his deposition in which he had testified the last time he \nworked on his truck was January or February of 2021, or before his third left shoulder surgery, the \nclaimant admitted this was not in fact true. Likewise, the claimant denied he ever raked any leaves \nafter his third surgery in March 2022, but when shown a PT report from July 25, 2022, that stated \nhe had in fact raked leaves over the weekend, he admitted this, as well. (RT 65-65-82   \nFinally, concerning his knowledge of the August 31, 2022 light duty work release which \nwas  given  him  after  the  date  he  retired  for  his  own  personal  reasons,  the  claimant  admitted on \ncross-examination he had testified in his deposition that Misty Thompson, the respondents’ claims \nadjuster,  reached  out  to  him  and  told  him  Dr.  Smith  had  released  him  to  light  duty  work. He \nadmitted  he  knew  the  school  district  had  always  previously  returned  him  to  work  within  the \nrestrictions placed upon him by his doctors. He testified that after learning of this release from Ms. \nThompson, he said “that was fine” and he “had no arguments” with it, the release. On redirect-\nexamination the claimant testified that when he spoke with Misty Thompson, she said, “if I was \ngoing back to work, did they have a place for me, and she said ‘yes.’ That’s all I was told.” He \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n9 \ntestified, “All she told me is the school said they had a place for me if I was going back to work.” \n(RT 85-109). The claimant testified on re-direct examination that his left shoulder was still hurting, \nthat he was in pain at the time of the hearing, and the pain limited his activities, the things he was \nable to do. (RT 51-52).   \nDISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n9-704(c)(3) (2023 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987).  \n \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n10 \n All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Dena Constr. Co. v. Herndon, 264 Ark. \n791, 595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the \ncredibility of the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. \nApp. 116, 912 S.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a \nclaimant’s or any other witness’s testimony, but may accept and translate into findings of fact \nthose portions of the testimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, \n780 S.W.2d 34 (Ark. App. 1989); Farmers Coop. v. Biles, supra.  \n The Commission has the duty to weigh the medical evidence just as it does any other \nevidence, and its resolution of the medical evidence has the force and effect of a jury verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince to weigh the totality of the medical evidence and to determine what evidence is most \ncredible given the totality of the credible evidence of record. Minnesota Mining & Mfg’ing v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n As  always,  both  attorneys  did  an  excellent  job  zealously  representing  their  respective \nclients and presenting their respective cases at the subject hearing – both of which resulted in a \ncomplete  record  that  was  most  helpful  to  this  ALJ  in  examining  the  relevant  evidence  and \nrendering  the  opinion  herein.  Consequently,  based  on  the  aforementioned  law  as  applied  to  the \nfacts  of  this  case,  and  the  totality  of  the  credible  evidence  of  record – both  testimonial  and \ndocumentary – I  am  compelled  to  find  the  claimant  has  failed  to  meet  his  burden  of  proof  in \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n11 \ndemonstrating he is entitled to additional TTD benefits from August 31, 2022, through a date yet \nto be determined; and he failed to prove he is entitled to additional medical treatment for his left \nshoulder at the respondents’ expense for the reasons set forth in more detail, infra. \n1. The claimant has failed to meet his burden of proof that he remained with his healing \nperiod and was totally incapacitated from earning wages after August 31, 2022, the \ndate his treating orthopedic surgeon, Dr. Smith, released him to return to light duty \nwork, which the respondents made available to him. \n \nIn Lybyer v. Springdale School District, 2019 Ark. App. 77, 568 S.W.3d 805 (Ark. App. \n2019), the Arkansas Court of Appeals held that a voluntary resignation is tantamount to a refusal \nof employment. The claimant in Lybyer sustained a compensable injury on June 22, 2015. Lybyer \nwas returned to work on “very light duty.” After being called to the office for leaving early and \ntaking long breaks, the claimant was caught on camera attempting to cover a surveillance camera \nwith  tape. Thereafter,  the Lybyer claimant  voluntarily  resigned  her  employment. Since she  was \nstill within her healing period, the claimant in Lybyer made a claim for additional TTD benefits.   \nThe school district denied this request for additional TTD benefits pursuant to Ark. Code Ann. § \n11-9-526 based  on  the  fact  the claimant  chose  to  voluntarily  resign  rather  than  face  firing  or \ntermination. The  court of  appeals in Lybyer noted  that  termination  of  employment  based  upon \nmisconduct  is  not  a  refusal  to  return  to  work  under Ark.  Code  Ann. §  11-9-526  such  that  an \nemployee is disqualified from benefits. See, Tyson Poultry, Inc. v. Narvaiz, 2012 Ark. App. 118, \n388  S.W.3d  16 (Ark.  App. 2012).  The  court  then  found  as  a  matter  of  law that a  voluntary \nresignation  is  a  refusal  of  employment which  bars  a  claimant  from  receiving additional  TTD \nbenefits. \n    \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n12 \nIn  the  case  at  bar, it  is  undisputed  the  claimant  voluntarily  retired  because  of  personal \nreasons on June 30, 2022. Moreover, the evidence demonstrates the school district had a practice \nof accommodating the claimant (and others) by providing them light/sedentary work each time he \nwas released  to  work  light  duty. The  claimant  admitted Ms. Misty  Thompson  advised  him the \nschool district had work available within his restriction when she reached out to tell him about the \nAugust 31, 2022, light/sedentary work release, the claimant already had voluntarily chosen to retire \nand begin drawing retirement benefits. This voluntary retirement is a declaration of the claimant’s \nrefusal  to  return  to suitable  employment  within  his work  restrictions. Therefore,  as in Lybyer,  \nsupra, the claimant cannot now credibly claim the respondents did not make him a bona fide offer \nof employment wherein he would be able to draw the entire amount of his salary. Consequently, \nthe preponderance of the evidence proves the claimant is not entitled to additional TTD benefits \nfrom  August  31,  2022,  through  a  date  yet  to  be  determined. Indeed,  the  claimant  admitted  he \nunderstood  Ms.  Misty  Thompson  was  offering  him  the  opportunity  to  come  back  to  work  if  he \nchose to do so; however, he had already retired his employment – voluntarily left his job – on June \n30, 2022. \nLikewise  in Redd  v.  Blytheville  School  District,  2014  Ark.  App.  575,  446  W.W.3d  643 \n(Ark. App. 2014), the evidence revealed that had the claimant not retired at age 62, the respondents \nhad work within the claimant’s physical restrictions that was made and remained available to the \nclaimant. Just as in Redd, here the claimant testified the school district had allowed him to return \nto  light duty work  in  the  past, and  made what  he  referred  to  as, “make work” available to him \nwithin his restrictions which allowed him to draw the full amount of his salary. Moreover, as in \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n13 \nRedd,  the  evidence  reveals the  claimant herein was  always  provided  job  duties  within  his light \nduty restrictions which were made available to him, but he had already voluntarily chosen to retire \nat the age of 67 for personal reasons and begin drawing his retirement benefits. Therefore, pursuant \nto  both Lybyer and Redd,  supra, the claimant’s voluntary retirement prevents  him  from  any \nentitlement  to  additional  TTD benefits. It  is  abundantly  clear  from  the  evidence  of  record  the \nclaimant was not totally incapacitated from working when he was released to light duty work on \nAugust 31, 2022.    \n2. The claimant sustained an independent intervening cause injury to his left shoulder \nin September  of  2022.  Therefore,  he has  failed  to  meet  his  burden  of  proof  in \ndemonstrating he is entitled to additional medical treatment at the respondents’ \nexpense after the date of this independent intervening cause injury. \n \nIn  a  workers’  compensation  case,  the  claimant  has  the  burden  of  proving  by  a \npreponderance of the evidence that his claim is compensable, ie., that his injury was the result of \nan accident that arose in the course of his employment and that it grew out of or resulted from the \nemployment. Ringier  American  v.  Combs,  41  Ark.  App.  47,  849  S.W.2d  1  (Ark.  App. 1993); \nCarman v. Haworth, Inc., 74 Ark. App. 55, 455  S.W.3d 408 (Ark.  App. 2001). In addition, the \nclaimant  must  prove  a  causal  connection  between  the  work-related  accident and  his  alleged \ndisability. Bates v. Frost Logging Co., 38 Ark. App. 36, 827 S.W.2d 664 (Ark. App. 1992). Plainly \nstated,  the claimant  must demonstrate  by  a  preponderance  of  the  evidence  there  exists a  causal \nrelationship between his current condition and his employment. Harris Cattle Co. V. Parker, 256 \nArk. 166, 506 S.W.2d 118 (1974). \n \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n14 \nAs the respondents note in their post-hearing brief, there exists no presumption an injury \nis compensable. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979). The party \nhaving the burden of proof on the issue must establish it by a preponderance of the evidence. Ark. \nCode  Ann..  § 11-9-704©(2)(2023  Lexis Replacement). In  determining  whether  a  claimant  has \nsustained his or her burden of proof, the Commission shall weigh the evidence impartially, without \ngiving  the  benefit  of  the  doubt  to  either  party. Ark.  Code  Ann. §  11-9-704; Wade  v.  Mr.  C. \nCavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); and Fowler v. McHenry, 22 Ark. App. 196, \n737 S.W.2d 663 (Ark. App. 1987). \nIn Maverick Transp. v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (Ark. App. 2000), our \ncourt of appeals discussed the difference between an “aggravation” and a “recurrence”: \nAn aggravation is a new injury resulting from an independent incident. Farmland \nIns. Co. v. DuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). A recurrence is not \na new injury but merely another period of incapacitation resulting from a previous \ninjury. Atkins Nursing Home v. Gray, 54 Ark. App. 125, 923 S.W.2d 897 (1996).   \nA  recurrence  exists  when  the  second  complication  is  a  natural  and  probable \nconsequence of a prior injury. Weldon v. Pierce Bros. Constr., 54 Ark. App. 344, \n925 S.W.2d 179 (1996). Only where it is found that a second episode has resulted \nfrom an independent intervening cause is liability imposed upon the second carrier. \n \nThe  test  to  determine  whether  a separate  incident  that  occurs  after  the  work  injury is  a \nrecurrence or an aggravation is whether the subsequent incident was a natural and probable result \nof the first injury, or if it was precipitated by an independent intervening cause. Bearden Lumber \nCo. v. Bond, 7 Ark. App. 65, 644 S.W.2d 321 (Ark. App. 1983). Even if there is a causal connection \nbetween the initial incident/injury and disability, there is no independent intervening cause unless \nthe subsequent disability is triggered by activity on the part of the claimant which is unreasonable \nunder the circumstances. Davis v. Old Dominion Freight Line, Inc. 341 Ark. 751, 20 S.W.3d 326 \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n15 \n(Ark. App. 2000); Georgia-Pacific Corp. v. Carter, 62 Ark. App. 162, 969 S.W.2d 677 (Ark. App. \n1998); Guidry v. J & R Eads Const. Co., 11 Ark. App. 219, 669 S.W.2d 483 (1984). \nConcerning  the  proof  required  to  demonstrate  a  new  injury  or  aggravation  our  appellate \ncourts have consistently held that since an aggravation is a new injury, it must be proved by new \nobjective  evidence  of  a  new  injury  different  than  the  preexisting  condition. Vaughn  v.  Midland \nSchool Dist., 2012 Ark. App. 344, at 2-3 (Ark. App. 2012) (citing Barber v. Pork Grp., Inc., 2012 \nArk. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. 130, 382 S.W.3d \n1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 (Ark. App. 2010). \nWhere the only objective findings present are consistent with prior objective findings or consistent \nwith  a  long-term  degenerative  condition  rather  than  an  acute  injury,  this  does  not  satisfy  the \nobjective findings requirement for  a compensable aggravation of  a preexisting condition injury. \nVaughn, 2012 Ark. App. 344, at 6 (holding that Arkansas courts have interpreted the Act to require \n“new objective medical findings to establish a new injury when the claimant seeks benefits for the \naggravation of a preexisting condition”); Barber v. Pork Grp., Inc., 2012 Ark. App. 138, at 6 (Ark. \nApp. 2012) (affirming the Commission’s denial of an aggravation of a preexisting condition claim \nwhere the MRI findings revealed a degenerative condition, with no evidence of, and which could \nnot be explained by, an acute injury). In Mooney, 2010 Ark. App. 600 at 4-6, 378 S.W.3d at 165-\n66 (Ark. App. 2010), the court affirmed the Commission’s decision denying a back injury claim \nwhere the objective evidence of an injury - including muscle spasms, positive EMG test results, \nand  spinal  stenosis  revealed  on  an  MRI - were  all  present  both  before  and  after  the  date  of  the \nalleged aggravation injury.  \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n16 \nConsequently, in this case the claimant must prove a causal relationship exists between his \nemployment and his compensable injury, and his condition after the September 2022 carburetor \nincident. Wal-Mart Stores, Inc. v. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. \nApp. 2002) (citing McMillan v. U.S. Motors, 59 Ark. App. 85, 90, 953 S.w.2d 907, 909 (Ark. App. \n1997)). Objective medical evidence is not essential to establish a causal relationship between the \nwork-related accident and the injury where objective medical evidence establishes the existence \nand extent of the injury, and a preponderance of other nonmedical evidence establishes a causal \nrelationship  between  the  objective  injury  and  the  work-related  incident. Flynn  v.  Southwest \nCatering Co., 2010 Ark. App. 766, 379 S.W.3d 670 (Ark. App. 2010). “Objective findings” are \nthose findings which cannot come under the voluntary control of the patient. Ark. Code Ann. § \n11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, at 80 250 S.W.3d 263, at 272 \n(Ark. App. 2007). Objective findings “specifically exclude pain, straight-leg-raising  tests,  and \nrange-of-motion tests.” Burks v. RIC, Inc., 2010 Ark. App. 862, at 3 (Ark. App. 2010). \nThe respondents acknowledge that the claimant sustained a compensable injury to his left \nshoulder in 2019 for which they paid medical and indemnity benefits; however, the contend herein \nthat the claimant sustained a new injury to his left shoulder, or an aggravation of his preexisting \nleft shoulder condition in September 2022 after Dr. Joel Smith released him to return to light duty \nwork duty on August 31, 2022. At the August 31, 2022, examination Dr. Smith noted the following \nfindings in the claimant’s left shoulder: \nForward Flexion 180 degrees \nAbduction   110 degrees \nExternal Rotation  65 degrees \nInternal Rotation PSIS \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n17 \n \nThe claimant has undergone two (2) prior surgeries on his left shoulder. After each of those \nprocedures, his first light duty restrictions always consisted of no use of the left arm. Consequently, \nit is now disingenuous of the claimant to now contend he did not know the full extent of the light \nduty restrictions placed upon him by Dr. Smith as of August 31, 2022, he was aware that following \nhis  previous  surgeries  these  restrictions  always  included  no  use  of  the  left  arm.  Despite  being \nadvised  that  he  was  released  to  light  duty,  the  claimant  proceeded  to  help  his  son  change  a \ncarburetor on the Saturday prior to his follow up appointment with Dr. Smith on September 27, \n2022. The claimant advised Dr. Smith at that visit that while helping his son change a carburetor \nand while holding a wrench, his left shoulder popped, and “pain has increased since then.”   \nUnlike any previously reported incident of his left shoulder popping, this time whatever activity \nthe claimant was performing was unlike any other activity that caused his shoulder to pop as this \ntime, unlike the previous times, the pain from the pop never went away but continued to increase \never since. Accordingly, there is a clear specific incident on that Saturday that caused a new and \nprolonged increase in the claimant’s left shoulder pain.    At that office visit, Dr. Smith noted  a \ndecrease in the claimant’s active range of motion. Specifically, Dr. Smith noted: \nForward Flexion: with pain and 170 degrees \nAbduction:  with pain and 100 degrees \nExternal Rotation: with pain and 60 degrees \nInternal Rotation: with pain and buttocks \n \nAs the respondents acknowledge in their post-hearing brief, active range of motion (ROM) \nis a subjective finding of new pain and symptoms in the claimant’s left shoulder. \n  \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n18 \nBut, significantly, in addition to these subjective findings Dr. Theodore Hronas, a board \ncertified radiologist with the American Board of Radiology who the respondents’ asked to review \nthe claimant’s 3/10/2022 surgical record/operative report, as well as two (2) objective diagnostic \nMRI arthrograms, one (1) of which was performed on 12/23/2021, before the alleged September \n2022 new injury, and the most recent of which was performed on 11/23/2022, after the alleged \nSeptember 2022 new injury. In his written report dated March 15, 2023, Dr. Hronas explained in \nsome  detail the  differences  between these  two  (2)  objectives diagnostic  tests.  (RX2  at  26-27). \nConcerning the 12/23/2021 MRI arthrogram, Dr. Hronas noted:  \n...susceptibility artifact within the humeral head related to metallic bone anchors \nsecondary to prior rotator cuff tear. There is a small 2 mm region of contrast signal \ninvolving the undersurface of the supraspinatus tendon characteristic of a grade II \narticular  surface  tear.  The  infraspinatus  and  teres  minor  muscles  and  tendons  are \nnormal.   There   is   abnormal   contrast   traversing   the   superior   margin   of   the \nsubscapularis  characteristic  of  a  full  thickness  tear  creating  a  defect  within  the \nadjacent  rotator  cuff  interval,  with  contrast  from  the  joint  space  communicating \ndirectly  with  the  subacrominal/subdeltoid  bursa.  There  is  glenohumeral  joint \narthritis. The long head of the biceps tendon is not seen within the bicipital groove. \n \n(RX2 at 26).   \n \n Dr.  Hronas further noted the  claimant  underwent  surgery on  3/10/2022 following  the \naforementioned   12/23/2021 diagnostic   test   which   included   an   arthroscopic   repair   of   the \nsubscapularis, a mini open biceps tenodesis, and a humeral head chondroplasty with glenoid and \nlabral debridement.  \n     In  describing  the  MRI  arthrogram  findings  from 11/23/2022 – performed  some  nine  (9) \nmonths after the March 2022 surgery, and only three (3) months after the occurrence of and the \nclaimant’s report to his doctor concerning September 24, 2022, alleged new injury, Dr.  Hronas \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n19 \nnoted the November 2022 objective diagnostic study (which he mistakenly refers to as having been \nperformed on “12/23/2022”) revealed: \n...susceptibility  artifact  to  bone  anchors  used  in  repair oo  the  supraspinatus  and \nsubscapularis  tendons.  A  previously  seen  small  articular  surface  tear  of  the \nsupraspinatus has resolved. There is extensive high grade partial articular surface \ntear  of  the  midsubstance  of  the  subscapularis  tendon  with  abnormal  contrast \noccupying  the  rotator  interval  characteristic  of  complete  tear  of  the  superior \nglenohumeral ligament and rotator interval capsule. The coracohumeral ligament \nis intact. The infraspinatus and teres minor muscles and tendons are normal. The \nlong head of the biceps tendon is not visualized consistent with tenodesis. There is \nagain circumferential labral tearing and detachment.  \n \n(RX2 at 26) (Emphasis added). \n \n       Dr. Hronas went on to summarize and explain the significance of the differences between \nthese  two  (2)  objectives diagnostic  test  results.  He  stated the most  recent 11/23/2022 MRI \narthrogram showed findings of a successful repair of the supraspinatus tendon. However, he further \nnoted  that  this same  11/23/2022 MRI  arthrogram, “shows a progressive high grade articular \nsurface tear of the subscapularis tendon with a complete tear of the adjacent rotator interval capsule \nand likely the superior glenohumeral ligament.” (RX2 at 27). He goes on to point out that these \nfindings  were not  present  in  the 12/23/2021 MRI  arthrogram, nor did the claimant’s treating \northopedic  surgeon, Dr.  Joel  Smith,  note  them  in  his  3/10/2022 operative  report  from  the \nclaimant’s third left shoulder surgery. The obvious differences Dr. Hronas identifies and explains \nabove  provide significant  objective  medical  evidence  of  a  new  injury  to  the  claimant’s  left \nshoulder,  or at  least the aggravation of the claimant’s preexisting left shoulder condition as it \nexisted after the date of both his compensable injury in 2021, and his third surgery in March of \n2022. Since  the  claimant  had  not  worked  after  his  March  2022  third  left  shoulder  surgery,  it  is \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n20 \nhighly likely and more probable than not that the condition of the claimant’s left shoulder as seen \nin  the  11/23/2022  MRI  arthrogram  was  caused  by  the  independent  intervening  incident  the \nclaimant sustained  and  reported to Dr. Smith in September 2022 – after  his healing period had \nended and Dr. Smith had released him to light duty work on  August 31,  2022. In  addition, as  a \nboard-certified radiologist of the American Board of Radiology Dr. Hronas’s report – especially \nin the total absence of any evidence, medical or otherwise, rebutting or contradicting Dr. Hronas’s \nfindings – are entitled to significant weight based on the facts of this case. \nThe  credible  evidence  of  record demonstrates  the  presence  of  new  objective  medical \nfindings  resulting  from  the  carburetor-repair incident  in  September  2022  after  the  claimant  had \nbeen released to light duty of no use of his left arm. The claimant tries to downplay this incident \nby claiming he did not do anything but hold a wrench. However, again as the respondents’ point \nout in their post-hearing brief, the claimant’s testimony is considered disputed as a matter of law. \nUncorroborated testimony of an interested party is always considered to be controverted. This rule \nof  law also  applies  to  a  non-party  witness  whose  testimony  might  be  biased. Burnett  v. \nPhiladelphia Life Insurance Co., 81 Ark. App. 300, 101 S.W.3d 843 (Ark. App. 2003). It is not \narbitrary for a fact finder to discredit and disregard such testimony. Id.; see also, Sykes v. Carmack, \n211 Ark. 828, 202 S.W.2d 761 (1947). The testimony of an interested party is taken as disputed as \na  matter  of  law  whether  offered  on  his  own  behalf  or  on  the  behalf  of  another  interested  party. \nKnoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989).  \nThe claimant denied in his deposition having worked on his truck since his third surgery in \nMarch 2022; however, when presented with the physical therapy notes indicating he worked on \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n21 \nhis truck for three hours in June of 2022, he could no longer continue to deny having worked on \nhis  truck  after his most  recent  shoulder  surgery.  Likewise,  at  the  hearing  the  claimant  denied \nhaving  raked  his  yard  after  his  third  surgery.  But  again,  the  physical  therapy  records  show  he \nreported  pain  in  his  shoulder  from  raking  leaves  in  July  2022. It  is  patently  clear the  claimant \ndenied performing any work which might injury or harm his left shoulder such as working on his \ntruck or raking leaves when other evidence directly contradicted the claimant’s testimony in this \nregard.  Similarly,  there exists no credible evidence to support the claimant’s own  self-serving, \nuncorroborated testimony  that  he  did  not  sustain  a  new  injury  or  aggravation  while  performing \nwork on the carburetor in September 2022. \nThe preponderance  of  the medical  evidence  reveals  that  prior  to  the  new  injury  or  aggravation \nfrom changing  a carburetor the claimant had a successful  repair of the supraspinatus tendon. After this \nincident, the MRI arthrogram revealed “a progressive high grade articular surface tear of the subscapularis \ntendon with a complete tear of the adjacent rotator interval capsule and likely the superior glenohumeral \nligament.” (RX2 at 26-27). This is a new objective finding that supports respondent’s contention that the \nclaimant  sustained  a  new  injury  or  aggravation  in  September  of  2022.  There  is grossly  insufficient \nevidence these new findings are the natural and probable result of the compensable injury. Indeed, these \nnew objective findings provide  unrebutted  objective  medical  evidence  the  new  findings  are  in  fact not \ncausally related to the claimant’s original compensable injury. These objective findings were not present \nin the first MRI arthrogram nor were they noted in Dr. Smith’s operative report. (Moreover, it is interesting \nto note the claimant’s own subjective reports of increased severity of pain, a different type of pain, and \ndecreased active ROM support the new objective findings Dr. Hronas mentions in his report.) \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n22 \nAccordingly,  the  only reasonable conclusion a  fair-minded  fact-finder  can  draw  from the \npreponderance of the credible evidence of record is that the claimant sustained a new injury or aggravation \nin  September  2022 that  is  not  causally  related  to  his  original  left  shoulder  injury  from  2019. To  find \notherwise would constitute sheer speculation and conjecture, which cannot support a claim for benefits \npursuant  to  the  Act. See,  Dena,  supra. This  new  injury  or  aggravation  is  supported  by  new  objective \nmedical findings, again, as Dr. Hronas credibly explains without rebuttal or contradiction. Consequently, \nfor all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction over this claim. \n \n2. The claimant has failed to meet his burden of proof in demonstrating he is entitled \nto  any  additional  TTD  benefits  after  August  31,  2022 – the  date  his  treating \northopedic surgeon, Dr. Smith, released him to light duty – through a date yet to be \ndetermined since:  (a) The  preponderance  of  the evidence reveals the claimant’s \nhealing period ended as of August 31, 2022, when Dr. Smith released him to light \nduty  work since  the  claimant  clearly  was  not  totally incapacitated  from  earning \nwages; (b)  The preponderance  of  the  evidence  reveals  the respondents  made the \nclaimant a bona fide job offer after Dr. Smith released him to light duty work as of \nAugust  31,  2022, that  fit  within  his single  physical restriction, but  the  claimant \nadmittedly refused the job offer, never attempted to perform the light duty job, and \nhad in fact voluntarily retired as of June 30, 2022.  \n \n3. The preponderance  of  the  evidence  demonstrates  the  claimant  sustained  a new \ninjury  or  aggravation  supported  by  new  objective  medical  findings in  September \n2022; therefore, he has failed to meet his burden of proof in demonstrating he is \nentitled to additional medical treatment at the respondents’ expense after the date \nthey last paid his medical expenses in late September 2022. \n \n4. The claimant’s attorney is not entitled to a fee on these facts. \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n23 \n      Therefore, for all the aforementioned reasons, this claim is hereby respectfully denied and \ndismissed subject, of course, to the claimant’s statutory appeal rights. \n      IT IS SO ORDERED. \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nPorter R. Sims, AWCC No. G904931 \n \n \n \n24","textLength":45404,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G904931 PORTER R. SIMS, EMPLOYEE CLAIMANT BRYANT SCHOOL DISTRICT, EMPLOYER RESPONDENT ARK. SCHOOL BOARD ASS’N WORKERS’ COMPENSATION TRUST/ ARK. SCHOOL BOARD ASS’N, RESPONDENT INSURANCE CARRIER/TPA OPINION AND ORDER FILED OCTOBER 24, 2023 Hearing conducted o...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:2","denied:4"],"injuryKeywords":["shoulder","back","rotator cuff"],"fetchedAt":"2026-05-19T23:01:59.937Z"},{"id":"alj-H006189-2023-10-18","awccNumber":"H006189","decisionDate":"2023-10-18","decisionYear":2023,"opinionType":"alj","claimantName":"Karen Bailey","employerName":"Fordyce School Dist","title":"BAILEY VS. FORDYCE SCHOOL DIST. AWCC# H006189 OCTOBER 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BAILEY_KAREN_H006189_20231018.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAILEY_KAREN_H006189_20231018.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H006189 \n \nKAREN L. BAILEY, \nEMPLOYEE                                                                                                              CLAIMANT \n \nFORDYCE SCHOOL DIST., \nEMPLOYER                                                                                                         RESPONDENT  \n \nARK. SCHOOL BOARDS ASS’N  \nWORKERS’ COMPENSATION TRUST,/ \nARK. SCHOOL BOARDS ASS’N, \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \nOPINION AND ORDER FILED OCTOBER 18, 2023, \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \nHearing conducted on Tuesday, October 17, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant was represented by the Honorable Tiffany Parker Nutt, of Fordyce, Dallas County, \nArkansas, who waived her appearance at the hearing. \n \nThe respondents were represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on Tuesday, October 17, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Repl.). \n The respondents filed a letter motion to dismiss with the Commission on August 28, 2023, \nrequesting this claim be dismissed without prejudice for lack of prosecution. In accordance with \napplicable Arkansas law, the ALJ’s office mailed both the claimant and her attorney due and proper \nlegal notice of the respondents’ motion to dismiss, as well as a copy of the hearing notice at her \naddresses of record via the United States Postal Service (USPS), First Class Certified Mail, Return \nReceipt requested. Thereafter, the claimant’s attorney sent an email to the respondents’ attorney \n\nKaren L. Bailey, AWCC No. H006189 \n2 \n \ndated October 3, 2023, advising on her client’s behalf that she had no objection to the ALJ granting \nthe respondents’ motion to dismiss, and further advising she was waiving appearance at the subject \nhearing. (Respondents’ Exhibit 1, Comms’n’s file). \n  A hearing was held on February 2, 2022, concerning whether the claimant’s lumbar spine \ncondition was compensable, and whether she was entitled to surgery at the respondents’ expense. \nThe respondents asserted a valiant “employment services” defense; however, though a close case \nbased on the particular facts of this claim, the ALJ rendered a decision in the claimant’s favor. The \nrespondents did not appeal the ALJ’s decision, and paid for the claimant’s lumbar spine surgery. \nThe claimant eventually returned to her teaching job on campus, as opposed to her work teaching \nher students via television which she had done soon after her work injury, which injury occurred \nhad occurred during the COVID-19 pandemic which necessitated remote teaching and learning. \nThe claimant has not pursued any additional claim for benefits since the hearing and her lumbar \nspine surgery and the recovery period that followed it. \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and/or attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has not had \na need to further prosecute her claim.  \n\nKaren L. Bailey, AWCC No. H006189 \n3 \n \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1.   The Commission has jurisdiction of this claim. \n \n2.   After having received due and legal notice of the respondents’ motion to  \n   dismiss as well as due and legal notice of the subject hearing, the claimant’s \n      attorney advised on the claimant’s behalf she had no objection to the ALJ \n      dismissing the claim without prejudice at this time, and she waived her \n      appearance at the subject hearing. \n \n3.   Moreover, the claimant has not felt the need to pursue her claim further after \n      her lumbar spine surgery, and to date she has not requested a hearing on any \n      issue(s).  \n \n4.   Therefore, the respondents’ letter motion to dismiss without prejudice filed \n      with the Commission on August 28, 2023, should be and hereby is \n      GRANTED pursuant to both Ark. Code Ann. Section 11-9-702(a)(4) and \n      Commission Rule 099.13. \n \n Nothing in this opinion and order shall be construed to prevent the claimant, her current \nattorney of record, or any other attorney she may hire to represent her, or any person acting with \nher permission and on her behalf from refiling this claim, if the claim is refiled within the deadlines \nset forth in Ark. Code Ann. Section 11-9-402.  \n The  respondents  shall pay  the  court  reporter’s  invoice  within  twenty  (20)  days  of  their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \nMP/mp","textLength":6036,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H006189 KAREN L. BAILEY, EMPLOYEE CLAIMANT FORDYCE SCHOOL DIST., EMPLOYER RESPONDENT ARK. SCHOOL BOARDS ASS’N WORKERS’ COMPENSATION TRUST,/ ARK. SCHOOL BOARDS ASS’N, INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED OCTOBER 18, 2023, GRANTING RESPOND...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":["lumbar"],"fetchedAt":"2026-05-19T23:01:47.363Z"},{"id":"alj-H303365-2023-10-18","awccNumber":"H303365","decisionDate":"2023-10-18","decisionYear":2023,"opinionType":"alj","claimantName":"Rebecca Dorris","employerName":"Lake Hamilton Middle School","title":"DORRIS VS. LAKE HAMILTON MIDDLE SCHOOL AWCC# H303365 OCTOBER 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DORRIS_REBECCA_H303365_20231018.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DORRIS_REBECCA_H303365_20231018.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H303365 \n \nREBECCA ANN DORRIS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nLAKE HAMILTON MIDDLE SCHOOL, \nEMPLOYER                                                                                                         RESPONDENT  \n \nARK. SCHOOL BOARDS ASS’N  \nWORKERS’ COMPENSATION TRUST/ \nARK. SCHOOL BOARDS ASS’N, \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \nOPINION AND ORDER FILED OCTOBER 18, 2023, \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \nHearing conducted on Tuesday, October 17, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Rebecca Ann Dorris, pro se, of Hot Springs, Garland County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Melissa Wood, Worley, Wood & Parrish, \nP.A., Little Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on Tuesday, October 17, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Repl.). \n The respondents filed a motion to dismiss with the Commission on September 18, 2023, \nrequesting this claim be dismissed for lack of prosecution. In accordance with applicable Arkansas \nlaw, the claimant was mailed due and proper legal notice of the respondents’ motion to dismiss, \nas  well  as  a  copy  of  the  hearing  notice  at  her  addresses  of  record  via  the  United  States  Postal \nService (USPS), First Class Certified Mail, Return Receipt requested.  \n\nRebecca Ann Dorris, AWCC No. H303365 \n2 \n \n          The claimant responded to the respondents’ motion to dismiss in an email to the ALJ dated \nSeptember  26,  2023,  cc:’ing  Ms.  Trese  Martin  of  the  respondents’  law  firm.  In  this  email  the \nclaimant  clearly  and  directly  she  did  not  wish  to  pursue  this  claim  and  did  not  object  to  its \ndismissal; and she specifically waived her right to appear at the hearing. (Respondents’ Exhibit 1; \nand Comms’n’s file). True to the facts and sentiments she expressed in her email, the  claimant \nfailed and/or refused to appear at the subject hearing.  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and/or attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute her claim. In fact, the claimant articulately, directly, and specifically \nstated in the aforementioned September 26, 2023, email that she did not wish to pursue this claim; \nshe did not object to its dismissal; and she waived her right to a hearing. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1.   The Commission has jurisdiction of this claim. \n \n2.   After having received due and legal notice of the respondents’ motion to  \n   dismiss, as well as due and legal notice of the subject hearing, the claimant \n   failed and/or refused to appear at the hearing.  \n \n\nRebecca Ann Dorris, AWCC No. H303365 \n3 \n \n3.   In fact, in her email to the ALJ and opposing counsel’s office dated \n      September 26, 2023, she did not want to pursue the claim, did not object to \n      its dismissal, and she waived her right to a hearing.   \n \n4.   The claimant has in fact waived her right to a hearing on the respondents’ \n      subject motion to dismiss, and has failed to prosecute – in fact, she has \n      specifically stated in writing she does not want to prosecute – her claim. \n \n5.   Therefore, the respondents’ motion to dismiss without prejudice filed with \n   the Commission on September 18, 2023, should be and hereby is  \n      GRANTED pursuant to both Ark. Code Ann. Section 11-9-702(a)(4) and \n      Commission Rule 099.13. \n \n Nothing in this opinion and order shall be construed to prevent the claimant, any attorney \nshe may hire in the future, nor any person acting legally and on her behalf from refiling this claim, \nif the claim is refiled within the deadlines set forth in Ark. Code Ann. Section 11-9-402.  \n The  respondents  shall pay  the  court  reporter’s  invoice  within  twenty  (20)  days  of  their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5652,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303365 REBECCA ANN DORRIS, EMPLOYEE CLAIMANT LAKE HAMILTON MIDDLE SCHOOL, EMPLOYER RESPONDENT ARK. SCHOOL BOARDS ASS’N WORKERS’ COMPENSATION TRUST/ ARK. SCHOOL BOARDS ASS’N, INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED OCTOBER 18, 2023, GRANTIN...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:01:49.436Z"},{"id":"alj-H205431-2023-10-18","awccNumber":"H205431","decisionDate":"2023-10-18","decisionYear":2023,"opinionType":"alj","claimantName":"Sarah Loge","employerName":"Dollar General Store","title":"LOGE VS. DOLLAR GENERAL STORE AWCC# H205431 OCTOBER 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//LOGE_SARAH_H205431_20231018.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LOGE_SARAH_H205431_20231018.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205431 \n \nSARAH LOGE, \nEMPLOYEE                                                                                                              CLAIMANT \n \nDOLLAR GENERAL STORE, \nEMPLOYER                                                                                                         RESPONDENT  \n \nDOLGENCORP, LLC, d/b/a DOLLAR GENERAL/ \nSEDGWICK CLAIMS MG’T, INC., \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER FILED OCTOBER 18, 2023, \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITH PREJUDICE \n \nHearing conducted on Tuesday, October 17, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Sarah Loge, pro se, of Conway, Faulkner County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable David C. Jones, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on Tuesday, October 17, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Repl.). \n The respondents filed a motion to dismiss and brief in support thereof with the Commission \non August 7, 2023, requesting this claim be dismissed either with or without prejudice for lack of \nprosecution. In accordance with applicable Arkansas law, the claimant was mailed due and proper \nlegal notice of the respondents’ motion to dismiss, as well as a copy of the hearing notice at his \naddresses of record via the United States Postal Service (USPS), First Class Certified Mail, Return \nReceipt requested. Thereafter, the claimant never responded to the subject motion to dismiss, nor \n\nSarah Loge, AWCC No. H205431 \n2 \n \ndid  she  request  a  hearing,  or  contact  and/or  try  to  contact  the  Commission  by  any  means  of \ncommunication.  The  last  time  the  claimant  corresponded  with  the  Commission  was  by  a  type-\nwritten letter dated August 17, 2022, some 14 months ago, wherein she requested to “appeal’ the \nrespondents’  denial  of  her  claim,  and  she  requested  a  hearing. (Respondents’  Exhibit  1,  and \nComms’n’s file). However, thereafter, the claimant never made any effort whatsoever to pursue \nand/or  prosecute  her  claim.  Moreover,  she  failed  and/or  refused  to  cooperate  in  the  discovery \nprocess or to provide the respondents’ attorney with responses to the respondents’ interrogatories \nand requests for production of documents, and she failed and/or refused to provide the respondents \na signed medical release. \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and/or attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute her claim as required by the applicable statute and Commission rule. \nMoreover, and significantly, since the alleged date of injury of August 4, 2021, the respondents \ncontroverted  this  claim  in  its  entirety  and  never  paid  any  medical  and/or  indemnity  benefits. \nConsequently, the applicable statute of limitations (S/L) expired on August 4, 2023, and therefore, \nthe plain language of the Arkansas Workers’ Compensation Act (the Act) compels me to dismiss \nthis  claim  with  prejudice. The  ALJ  also  notes  the  respondents’  well-reasoned  and  well-written \n\nSarah Loge, AWCC No. H205431 \n3 \n \nmotion to dismiss and brief in support thereof filed with the Commission on August 7, 2023 – as \nwell  as  the  preponderance  of  the  evidence  of  record  conclusively  demonstrating  that  more  than \ntwo (2) years have passed since the alleged injury date of August 4, 2021, and the claimant has not \nreceived any medical and/or indemnity and/or any other benefits, and certainly has not received \nany benefits whatsoever within the last one (1) year – sets forth more than sufficient facts and legal \nprecedent to warrant a dismissal with prejudice in this particular claim. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1.   The Commission has jurisdiction of this claim. \n \n2.   After having received due and legal notice of the respondents’ motion to  \n   dismiss, as well as due and legal notice of the subject hearing, the claimant \n   failed and/or refused to respond to the motion in any way whatsoever, and \n      she failed and/or refused to appear at the subject hearing. Therefore, she has \n      waived her right to a hearing on the respondents’ motion to dismiss.  \n \n3.   Moreover, the claimant has failed to prosecute her claim in any way \n      whatsoever, and has to date failed and/or refused to cooperate in the \n      discovery process, including but not limited to failing and/or refusing to \n      respond to the respondents’ routine and reasonable interrogatories and \n      requests for production of documents, and she has failed and/or refused to \n      provide the respondents’ a signed medical authorization.  \n   \n4.   Therefore, since the alleged date of injury is August 4, 2021; and the \n      respondents denied this claim in its entirety and have not paid any medical \n      and/or indemnity benefits; as well as for all the reasons set forth above in \n      the “Discussion” section of this opinion and order, and the respondents’ \n      motion to dismiss with or without prejudice and brief in support thereof, the \n      Act compels me to GRANT the respondents’ motion to dismiss filed with \n      the Commission on August 7, 2023, with prejudice based on the specific \n      facts and applicable law, pursuant to both Ark. Code Ann. Section 11-9- \n     702(a)(4) and Commission Rule 099.13. \n \n\nSarah Loge, AWCC No. H205431 \n4 \n \n  Of course, the claimant may appeal the decision set forth in this opinion and order within \nthe  applicable  deadline.  The  ALJ  strongly  encourages  the  claimant  to  retain  the  services  of  an \nattorney should she wish to do so.  \n The  respondents  shall  pay  the  court  reporter’s  invoice  within  twenty  (20)  days  of  their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":7503,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205431 SARAH LOGE, EMPLOYEE CLAIMANT DOLLAR GENERAL STORE, EMPLOYER RESPONDENT DOLGENCORP, LLC, d/b/a DOLLAR GENERAL/ SEDGWICK CLAIMS MG’T, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED OCTOBER 18, 2023, GRANTING RESPONDENTS’ MOTION TO DIS...","outcome":"dismissed","outcomeKeywords":["dismissed:4","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:01:51.508Z"},{"id":"alj-H202795-2023-10-16","awccNumber":"H202795","decisionDate":"2023-10-16","decisionYear":2023,"opinionType":"alj","claimantName":"Jessie Kirk","employerName":"Van Buren Water & Sewer Dept","title":"KIRK VS. VAN BUREN WATER & SEWER DEPT. AWCC# H202795 OCTOBER 16, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//KIRK_JESSIE_H202795_20231016.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KIRK_JESSIE_H202795_20231016.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H202795 \n \nJESSIE L. KIRK, Employee                                                                              CLAIMANT \n \nVAN BUREN WATER & SEWER DEPT., Employer                                 RESPONDENT                         \n \nARKANSAS MUNICIPAL LEAGUE, Carrier                                              RESPONDENT                        \n \n \n \n OPINION FILED OCTOBER 16, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MARY K. EDWARDS, Attorney, No. Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On September 18, 2023, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on June 21, 2023 and a pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The  claimant  sustained  a  compensable  injury  to  his  back,  head,  and  right \nshoulder on March 30, 2022. \n 3.   The claimant was earning an average weekly wage of $965.04 which would \nentitle him to compensation at the weekly rates of $643.00 for total disability benefits and \n\nKirk – H202795 \n2 \n \n$482.00 for permanent partial disability benefits. \n 4.   The respondent accepted and paid permanent partial disability benefits based \non a 2% rating to the body as a whole. \n 5.   Respondent previously paid claimant permanent partial disability benefits for a \n10% impairment rating in a previous claim. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.     Claimant’s entitlement to benefits pursuant to A.C.A. §11-9-505(a)(1). \n2.     Wage loss disability. \n3.      Attorney’s fee. \n The   claimant   contends   that   since   the   respondents   were   able   to   provide \nemployment for the claimant after the surgery for which they are claiming a 10% to the \nwhole person reduction in his current impairment rating, they should be able to allow him \nto return to work following his most recent surgery.  Unless they can present good cause \nfor  not  allowing  the  claimant  to  return  to  work,  payments  pursuant  to  A.C.A.  §11-9-\n505(a)(1)  are  appropriate.    Claimant  contends  that  if  the  respondent/employer  is  not \nallowing him to return to work at wages equal to or greater than the wages that he was \nearing at the time of his injury, he is entitled to wage loss disability.  Claimant contends \nhis attorney is entitled to an appropriate attorney’s fee in regard to any benefits awarded \npursuant to A.C.A. §11-9-505(a)(1) and as a result of an award of wage loss disability. \nThe  respondents  contend  claimant  cannot  prove  that  he  is  entitled  to benefits \npursuant to A.C.A. §11-9-505(a)(1).  Suitable work was not available with the employer.  \nRegarding  wage  loss,  respondents  pursued  vocational  rehabilitation  and  recently \nreceived the report.  Respondents are in the process of determining its position regarding \n\nKirk – H202795 \n3 \n \nwage loss. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non June 21, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has failed to prove by a preponderance of the evidence that he is \nentitled to benefits pursuant to A.C.A. §11-9-505(a)(1). \n 3.    Claimant has proven by a preponderance of the evidence that he is entitled to \npermanent partial disability benefits in an amount equal to 35% to the body as a whole \nas a result of his compensable injury for loss in wage earning capacity. \n 4.   Respondents have controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant is a 48-year-old high school graduate who worked for respondent as a \nWastewater Plant Operator Class III.  He has a prior history of injuries to his low back.  \nClaimant was involved in a motor vehicle accident in 2000 which resulted in surgery at \nthe L5-S1 level.  Thereafter, while employed by respondent, claimant suffered a second \ninjury to his low back in 2009 when he and another employee were digging a sewer line \n\nKirk – H202795 \n \n4 \n \nand the ditch collapsed. As a result of that injury, claimant underwent surgery on August \n12,  2010,  which  was  performed  by  Dr.  Arthur  Johnson.    Following  that  surgery,  Dr. \nJohnson assigned claimant an impairment rating in an amount equal to 10% to the body \nas a whole.   \n After the surgery in 2010, claimant returned to work for respondent and continued \nto  perform  his  regular  job  duties  until  March  30,  2022.    On  March  30,  2022,  claimant \nsuffered an admittedly compensable injury to his back, head, and right shoulder when he \nwas struck from behind by another employee driving a vehicle.   \n Claimant was treated for his back injury by Dr. Frank Tomecek, neurosurgeon, who \nperformed an L5-S1 decompression and fusion procedure on August 24, 2022.  Medical \nrecords from Dr. Tomecek reflect that although claimant’s condition improved after the \nsurgery, he still continued to have some complaints of low back pain with post-surgical \ntreatment including physical therapy and two S1 joint injections.   \n Dr. Tomecek ordered a functional capacities evaluation which was performed on \nApril 19, 2023, and determined that claimant demonstrated the ability to perform work in \nthe  Medium  classification  of  work  with  the  ability  to  occasionally  lift  up  to  50  pounds.  \nFollowing  the  functional  capacities  evaluation,  claimant  returned  to  Dr.  Tomecek  who \nagreed  with  the  evaluation  restrictions  with  additions  of  no  pushing  or  pulling  over  70 \npounds; no crawling; no repetitive squatting or bending; and limited climbing of stairs or \nladders  to  a  few  minutes  per  day.    Dr.  Tomecek  indicated  that  claimant  had  reached \nmaximum  medical  improvement  and  he  also  assigned  claimant  an  additional 2% \nimpairment rating to the body as a whole.  This rating has been accepted and paid by \nrespondent. \n\nKirk – H202795 \n \n5 \n \n Following claimant’s release by Dr. Tomecek, he was not permitted to return to his \nprior position by respondent; instead, his employment was terminated.   On July 3, 2023, \nclaimant  became  employed  by  the  City  of  Fort  Smith  as  a  Wastewater  Plant Operator \nearning $15.54 per hour or $32,323.20 per year.   \n Claimant has filed this claim contending that he is entitled to benefits pursuant to \nA.C.A. §11-9-505(a)(1) due to respondent’s failure to return him to his prior job.  He also \nrequests benefits for wage loss disability resulting from his compensable injury. \n \nADJUDICATION \n Claimant contends that he is entitled to benefits pursuant to A.C.A. §11-9-505(a)(1) \nfor respondent’s refusal to return him to his prior job.  In order to receive benefits pursuant \nto A.C.A. §11-9-505(a)(1), claimant has the burden of proving by a preponderance of the \nevidence  that  (1)  he  sustained  a  compensable  injury;  (2)  there  is suitable employment \nwithin his physical and mental limitations available with the employer; (3) the employer \nrefused to return him to work; and (4) the employer’s refusal to return him to work was \nwithout reasonable cause.  Torrey v. City of Fort Smith, 55 Ark. App. 226, 230, 934 S.W. \n2d 237, 239 (1996); Nat’l. Cmty. Coll. v. Castaneda, 2018 Ark. App. 458, 588 S.W. 3d \n911.   \n I find that claimant has failed to meet his burden of proof.  Specifically, I find that \nclaimant has failed to satisfy elements (2) and (4).  The job description of a Water and \nWastewater  Operator  III requires  the  ability  to  lift  manhole  covers  weighing  up  to  50 \npounds.  Claimant contends that after his 2009 injury he was given a lifting restriction of \n40 pounds and that he continued to perform his job duties until the time of his March 30, \n\nKirk – H202795 \n \n6 \n \n2022 injury.  Therefore, since his restriction is now 50 pounds, he should be permitted to \nreturn to work for respondent at his prior job. \nEven  though  claimant  worked  at  his  job  performing  lifting  which  may  have \nexceeded his limitations after the 2009 injury, that is not determinative of this issue given \nthe remaining evidence presented.  Although claimant’s contention that he could return \nto work and lift up to 50 pounds is the primary basis for his claim, the evidence does not \nsupport this contention.  The medical records contain numerous statements from claimant \nto his treating physicians that he did not believe he could return to his prior employment.   \n  March 2, 2023 – Dr. Tomecek \n \n  His employer is Van Buren water and sewer.  He does \n  not feel he can return to that job because it is too much \n  manual labor.  He cannot work on his flower beds he \n  tries walking and it is difficult he cannot rake or do \n  other yard work.  It is hard for him to drive more than \n  short distances. \n \n \n  April 6, 2023 – Dr. Tomecek \n \n  His job involves sometimes lifting up to 200 and more \n  pounds at a time.  He has to lift 50 pound bags of Lyme \n  all day he has to mow and weed eat throughout the day. \n  He does not feel he can return to this type of work.   \n       \n     *** \n  He states that with the requirements of his job for the \n  state that he does not believe he can return to a job \n  with this degree of manual labor. \n \n \n  April 19, 2023 – Functional Capacity Evaluation \n \n  He reports that he had to climb stairs daily and ladders \n  only occasionally.  He had to regularly lift 50 lb bags of \n  lime and 5 gallon buckets of water samples.  Mr. Kirk \n  reports that he is not sure if he is able to perform those \n\nKirk – H202795 \n \n7 \n \n  job duties at this time due to his back condition. \n \n \n  May 4, 2023 – Dr. Tomecek \n \n  At that job he had to lift 50 pound bags of Lyme \n  several times a day.  He also had to do other \n  maintenance mowing and weed eating and many \n  other activities.  In addition, there were times he \n  had to lift up to 200 pounds at this job.  \n \n  (Emphasis added.) \n \n \n Notably, as late as the functional capacity evaluation on April 19, 2023, claimant \ninformed the individuals at the evaluation that he did not think he could perform the job \nduties  due  to  his  back  condition.    I  also  note  that  the  functional  capacity  evaluation \nindicated that claimant could occasionally lift up to 50 pounds.  According to the FCE, he \nhad to regularly lift 50-pound bags of lime and according to Dr. Tomecek claimant lifted \nthose 50-pound bags several times per day.  In addition, despite the job description which \nindicates lifting up to 50 pounds, claimant informed Dr. Tomecek in his reports of April 6, \n2023 and May 4, 2023 that he had to lift up to 200 pounds at his job. \n Furthermore, although claimant contends that he is capable of performing his prior \njob  which  would  require  lifting  of  at  least  50  pounds,  he  has  not  tried  to  lift  that  much \nbecause he is afraid to try. \n  Q Now, your medical records indicate that the doctor \n  has placed a 50-pound restriction on you.  Do you believe \n  that is about right or not? \n \n  A I haven’t tried it.  I have not tried lifting anything that \n  heavy yet.  I am afraid to. \n \n \n Given claimant’s testimony that he has not lifted anything weighing 50 pounds \n\nKirk – H202795 \n \n8 \n \nbecause he is afraid to would be an indication that respondent’s refusal to return claimant \nto a job requiring lifting 50 pounds was not unreasonable.   To the contrary, one could \nargue that it would be irresponsible for respondent to place claimant in a position of lifting \nmore weight than he feels comfortable lifting.   \n I  also  note  that  in  addition  to  the  weight  limitation,  Dr.  Tomesek  indicated  that \nclaimant is limited to climbing stairs and ladders to only a few minutes per day and that \nhe was restricting from pushing/pulling more than 70 pounds. \n Testifying at the hearing on behalf of respondent was Steve Dufresne, Director of \nUtilities for respondent since September 1, 2012.  Prior to serving as director, Dufresne \nperformed various other jobs for respondent since 1992, including the job performed by \nclaimant. Dufresne testified that because respondent is a small utility, individuals in one \ndivision have to help perform duties in other divisions.  This would include helping repair \nwater and sewer leaks and maintenance of water meters.  These duties may include using \nshovels to dig up water lines; maintaining and repair of meters weighing 300-400 pounds; \nand climbing out of pits and vaults that may be four to twelve foot deep.  Dufresne testified: \n  Q So what specifically of the job duties when you made \n  that decision was giving you pause or you felt like maybe he \n  could not do? \n \n  A Specifically, all of them.  Opening and closing valves \n  is a pushing and pulling.  Climbing in and out of pits, climbing \n  on ladders, climbing on water tanks.  Pulling pumps.  Working \n  on pulling manholes.  Just all of the general - - everything we \n  do requires the bending, squatting, crawling so on a continual \n  basis. \n \n \n Finally,  I  note  that  when  he  was  not  allowed  to  return  to  respondent,  claimant \nobtained  employment  at  the  City  of  Fort  Smith  as  a  Class  III  Wastewater Operator. \n\nKirk – H202795 \n \n9 \n \nAlthough this title is the same as the claimant held with respondent, the fact that claimant \nhas  the  same  job  title  with  Fort  Smith  does  not  serve  as  proof  that  he  could  have \ncontinued performing the job with respondent.  For instance, it is unknown whether the \njob  with  the  City  of  Fort  Smith  requires  lifting  up  to  50  pounds.    If  it  does, claimant \napparently  has  not  performed  that  duty  because  he  testified  that  he  had  not  lifted  50 \npounds because he was afraid to do so.  In addition, according to statements he made to \nDr.  Tomecek  he  had  to  lift  up  to  200  pounds  with  respondent.    There is  no  evidence \nclaimant is lifting that much weight with the City of Fort Smith.  Accordingly, I do not find \nthat  the  evidence  establishes  that  claimant  is  performing  the  same  job  with  Fort Smith \nwith the same job duties such as would serve as evidence that he could perform his prior \njob with respondent. \n In  summary,  I  find  that  claimant  has  failed  to  meet  his  burden  of  proving  by a \npreponderance of the evidence that there was suitable employment within his physical \nrestrictions and that respondent’s refusal to return him to work was without reasonable \ncause.  Claimant was assigned a lifting restriction of 50 pounds occasionally, but indicated \nto Dr. Tomecek that he had to lift up to 200 pounds at his job.  He also indicated that he \nhad  to  regularly  lift  50-pound  bags  of  lime  each  day.    Claimant  indicated  to  both  Dr. \nTomecek  and  at  the  functional  capacities  evaluation  that  he  did  not  believe  he  could \nperform his job duties with respondent.  Finally, according to claimant’s own testimony, \nhe  has  not  even  attempted  to  lift  50  pounds  because  he  is  afraid  to  try.    Under  these \ncircumstances, it was not unreasonable for respondent not to return claimant to a job that \nrequired lifting up to 50 pounds.  Accordingly, I find that claimant has failed to meet his \nburden  of  proving  by  a  preponderance  of  the  evidence  that  he  is  entitled  to  benefits \n\nKirk – H202795 \n \n10 \n \npursuant to A.C.A. §11-9-505(a)(1). \n Claimant also contends that he is entitled to permanent partial disability benefits \nfor a loss in wage earning capacity resulting from his compensable injury.  Pursuant to \nA.C.A. §11-9-522(b)(1), in considering claims for permanent disability benefits in excess \nof  the  percentage  of  permanent  physical  impairment,  the  Commission  may take  into \naccount  various factors  including  the percentage of  permanent  physical  impairment as \nwell as the claimant’s age, education, work experience, and other matters reasonably \nexpected to affect his future earning capacity. \n After consideration of the relevant wage loss factors in this case, I find that claimant \nhas suffered a loss in wage earning capacity in an amount equal to 35% to the body as a \nwhole.   \n The claimant is 48 years old and he is a  high school graduate.  Claimant admitted \nthat  he  struggles  with  the  use  of  computers.    Claimant  testified  that  he  has  several \nlicenses.    These  include  Water  Distribution  License  Grade  III;  Wasterwater  Treatment \nGrade III; Backflow Tester and Repair; Masters in Solid Waste; Plumbing Inspector’s \nLicense; and a Class A CDL.   \n Claimant’s prior jobs have included work for a water and sewer contractor; working \nfor Stilwell Industries, and working as a wildland firefighter for the U.S. Forestry Service.  \nAccording  to  claimant’s  testimony,  none  of  his  prior  jobs  were  any  less  physically \ndemanding than the job he performed with respondent. \n As previously noted, claimant has a total impairment rating in an amount equal to \n12% to the body as a whole (10% from 2010 and 2% from 2023).   He has been given \nrestrictions from a functional capacities evaluation which allows him to occasionally lift up \n\nKirk – H202795 \n \n11 \n \nto 50 pounds and carry up to 20 pounds on a frequent basis.  Claimant was also limited \nto occasional stooping, crouching and kneeling.  The evaluation determined that claimant \nwas  capable  of  performing  work  in  the  Medium  classification  of  work.    Following  that \nevaluation  claimant  returned  to  Dr.  Tomecek  who  indicated  that  in  addition  to  the \nrestrictions placed upon claimant at the functional capacities evaluation, claimant should \nnot push or pull over 70 pounds and he should not crawl or repetitively squat or repetitively \nbend.    In addition,  he should  limit  climbing  of  stairs  and  ladders  to  only  a  few minutes \neach day.  \n For reasons previously discussed, claimant was not capable of returning  to work \nfor the respondent.  Claimant underwent a vocational evaluation with the highest paying \njob identified as a Watershed Tender at an average salary of $30,020.00.  Fortunately, \nclaimant  was  able  to  obtain  employment  at  the  City  of  Fort  Smith  as  a  Class  III \nWastewater Operator.  Documentary evidence indicates that claimant earns $15.54 per \nhour for a total of $32,323.20 per year for this City of Fort Smith.  Based on the parties’ \nstipulations, the claimant earned an average weekly wage of $965.04 while working for \nrespondent which would total $50,182.08 per year. Thus, claimant has clearly suffered a \nloss in his ability to earn wages. \n Based on the foregoing evidence, I find that claimant has met his burden of proving \nby a preponderance of the evidence that he has suffered a loss in wage earning capacity \nin  an  amount  equal  to  35%  to  the  body  as  a  whole.    While  claimant  is capable  of \nperforming work in the Medium classification of work according to the functional capacity \nevaluation, his  ability  to  lift  has  been  severely  limited  by his  most  recent  compensable \ninjury.  In fact, that inability led to claimant no longer being able to perform his job with the \n\nKirk – H202795 \n \n12 \n \nrespondent.  Claimant underwent a vocational evaluation in which the highest paying job \nwas  identified  as  Watershed  Tender  at  an  average  salary  of  $30,020.00.    Fortunately, \nclaimant  was  able  to  obtain  employment  with  the  City  of  Fort  Smith  as  a  Wastewater \nOperator Class III at a salary of $32,323.20.  Thus, I find that claimant has suffered a loss \nin wage earning capacity in an amount equal to 35% to the body as a whole as a result \nof his compensable injury. \n \nAWARD \n Claimant has failed to prove by a preponderance of the evidence that he is entitled \nto benefits pursuant to A.C.A. §11-9-505(a)(1).  Claimant has proven by a preponderance \nof the evidence that he has suffered a loss in wage earning capacity in an amount equal \nto 35% to the body as a whole.  Accordingly, claimant is entitled to payment of permanent \npartial disability benefits in an amount equal to 35% to the body as a whole.  Respondent \nhas controverted claimant’s entitlement to all unpaid indemnity benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby the claimant.    \nRespondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $608.45. \nAll sums herein accrued are payable in a lump sum and without discount. \n \n\nKirk – H202795 \n \n13 \n \n IT IS SO ORDERED. \n \n       ________________________________  \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":21912,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202795 JESSIE L. KIRK, Employee CLAIMANT VAN BUREN WATER & SEWER DEPT., Employer RESPONDENT ARKANSAS MUNICIPAL LEAGUE, Carrier RESPONDENT OPINION FILED OCTOBER 16, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Cou...","outcome":"granted","outcomeKeywords":["granted:4","denied:1"],"injuryKeywords":["back","shoulder","repetitive"],"fetchedAt":"2026-05-19T23:01:45.298Z"},{"id":"full_commission-G506453-2023-10-12","awccNumber":"G506453","decisionDate":"2023-10-12","decisionYear":2023,"opinionType":"full_commission","claimantName":"Kenneth Johnson","employerName":"Land O’frost, Inc","title":"JOHNSON VS. LAND O’FROST, INC. AWCC# G506453 OCTOBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Johnson_Kenneth_G506453_20231012.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Johnson_Kenneth_G506453_20231012.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  G506453\n \n \nKENNETH A. JOHNSON, EMPLOYEE  CLAIMANT \n \nLAND O’FROST, INC., EMPLOYER RESPONDENT \n \nPMA MANAGEMENT, CORP.,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED OCTOBER 12, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE GUY A. WADE, Attorney at \nLaw, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed June 20, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The  Arkansas  Workers’  Compensation  Commission  has \njurisdiction over this claim.  \n \n2.  That  an  employer/employee  relationship  existed  on  August  21, \n2015,  the  date  of  the  claimed  injuries.    At  the  time,  the  claimant \nearned an average weekly wage sufficient for TTD / PPD rates of \n$629.00 / $427.00, respectively, per week. \n \n\n \nJOHNSON - G506453  2\n  \n \n \n3.  That  the  claimant  sustained  a  compensable  right  hip  and  neck \ninjury   on   August   21,   2015,   which   was   accepted   by   the \nrespondents.  \n \n4.  The claimant received an eleven percent (11%) disability rating to \nthe body as a whole in regard to his neck injury, which has been \npaid in full. \n \n5.  That the claimant has failed to satisfy the required burden of proof \nto show that he sustained a compensable work-related injury to his \nback and head on August 21, 2015, and consequently the claims \nfor medical, as well as PPD in regard to the back injury, are moot.  \n \n6.  The claimant has failed to satisfy the required burden of proof that \nhe  is  entitled  to  permanent  and  total  disability  and,  in  the \nalternative, has also failed to satisfy the required burden of proof \nfor wage-loss.  \n \n7.  The issue of attorney fees is moot.  \n \n8.  That all other issues are reserved.  \n \n9.  If not already paid, the respondents are ordered to pay for the cost \nof the transcript forthwith.  \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's June 20, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \n\n \nJOHNSON - G506453  3\n  \n \n \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \nCommissioner Willhite concurs and dissents. \nDISSENTING OPINION \nThe Administrative Law Judge (hereinafter referred to as “ALJ”) \nfound that an employer/employee relationship existed at the time on August \n21, 2015, the date of the claimed injuries, that the Claimant sustained \ncompensable right hip and neck injuries on August 21, 2015, which were \naccepted by the Respondents, and that the Claimant received an eleven \npercent (11%) disability rating to the body as a whole in regard to his neck \ninjury, which has been paid in full.       \n  The ALJ then found that Claimant has failed to prove by a \n\n \nJOHNSON - G506453  4\n  \n \n \npreponderance of the evidence that he sustained a compensable work-\nrelated injury to his back and head on August 21, 2015, and consequently \nthe claims for medical as well as permanent partial disability were denied. \nLastly, the ALJ held that the Claimant has failed to satisfy the required \nburden of proof that he is entitled to permanent and total disability benefits \nand, in the alternative, has also failed to satisfy the required burden of proof \nfor wage-loss.  I concur in part and dissent in part.  I would rule in favor of \nthe Claimant for his compensable lower back injury and additional medical \ntreatment of such injury and defer the issue of wage-loss until the Claimant \nhas reached the end of the healing period for his compensable lower back \ninjury.           \n 1. Claimant has suffered a compensable work-related injury to his \nlower back and his claims for medical treatment should be awarded. \n To establish a compensable injury by a preponderance of the \nevidence the Claimant must prove: (1) an injury arising out of and in the \ncourse of employment; (2) that the injury caused internal or external harm \nto the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in \nArk. Code Ann. §11-9-102(16), establishing the injury; and (4) that the injury \nwas caused by a specific and identifiable time and place of occurrence.  A \n\n \nJOHNSON - G506453  5\n  \n \n \ncompensable injury must be established by medical evidence supported by \nobjective findings and medical opinions addressing compensability must be \nstated within a degree of medical certainty.  Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002).         \n The employer takes the employee as he finds him.  Conway \nConvalescent Center v. Murphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. \nApp. 1979).  A pre-existing disease or infirmity does not disqualify a claim if \nthe employment aggravated, accelerated, or combined with the disease or \ninfirmity to produce the disability for which compensation is sought. See, \nNashville Livestock Commission v. Cox, 302 Ark. 69, 787 S.W.2d 664 \n(1990); Conway Convalescent Center v. Murphree, 266 Ark. 985, 585 \nS.W.2d 462 (Ark. App. 1979); St. Vincent Medical Center v. Brown, 53 Ark. \nApp. 30, 917 S.W.2d 550 (1996).  An increase in symptoms of a pre-\nexisting degenerative condition is sufficient to establish a compensable \ninjury.  Parker v. Atlantic Research Corp., 87 Ark. App. 145, 189 S.W.3d \n449 (2004).           \n An employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. § 11-9-508(a). \nReasonable and necessary medical services may include those necessary \n\n \nJOHNSON - G506453  6\n  \n \n \nto accurately diagnose the nature and extent of the compensable injury; to \nreduce or alleviate symptoms resulting from the compensable injury; or to \nmaintain the level of healing achieved; or to prevent further deterioration of \nthe damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).     \n On August 21, 2015, Claimant fell from the top of his semi-truck \ninjuring his head, neck, back and hip.  The parties stipulated that the \nClaimant suffered compensable neck and hip injuries.  The Claimant \ncontended that he also sustained additional injuries, including his lower \nback, but the ALJ found that the Claimant’s back injury was not \ncompensable primarily due to the perception that the treating physicians, \nDr. Wornock and Dr. Seale, failed to provide sufficient testimony regarding \ncausal connection to the work accident.  However, I find that this conclusion \nfails to fully consider the medical evidence.      \n  Claimant began complaining of lower back pain to Dr. Wornock two-\nmonths after the date of the work accident.  (CL Ex. 4, p. 11).  Dr. Wornock \nprescribed Claimant medication for pain management and referred \nClaimant to physical therapy for Claimant’s lower back and neck pain.  (CL \nEx. 4, p. 12).  Claimant continued to complain to Dr. Wornock of lower back \npain on several visits.               \n\n \nJOHNSON - G506453  7\n  \n \n \n A doctor is not required to be absolute in an opinion nor are the \nmagic words “within a reasonable degree of medical certainty” even \nrequired to be used by the doctor for an injury to be related to the work \naccident.  Freeman v. Con-Agra Frozen Foods, 344 Ark. 296 (2001). \nRather, the medical opinion must simply be more than speculation. Id.  If a \ndoctor renders an opinion about causation of a workers’ compensation \ninjury with language that goes beyond possibilities and establishes that \nwork was the reasonable cause of the injury, this should pass muster. Id. \nHere, the Claimant underwent physical therapy at the referral of Dr. \nWornock for treatment of his neck and back and further states that Claimant \nneeds to be evaluated for chronic pain of the neck and back after the work-\nrelated accident.              \n  Dr. Wornock referred Claimant to Dr. Seale where Claimant \nunderwent an x-ray which showed “C5-6 degenerative disc disease with \nleft-sided neck pain to the shoulder” and “L5-S1 severe degenerative disc \ndisease back pain and bilateral leg pain.”  (CL. Ex., p. 26).      \n Although Claimant clearly had degenerative issues in his lower back \nprior to the work accident, there is no evidence that he suffered from any \nsymptoms of such condition until after the accident.  The Courts have held \nin several cases that an increase in symptoms following a work-related \n\n \nJOHNSON - G506453  8\n  \n \n \naccident is sufficient proof to establish compensability.  Parker v. Atlantic \nResearch Corp., 87 Ark. App. 145, 189 S.W.3d 449 (2004).  In the present \nclaim, the Claimant sustained a specific-incident injury which only requires \nhim to establish a causal connection between the injury and his symptoms. \nThere was change in the condition of Claimant’s lower back after the \nAugust 15, 2015 work accident as Dr. Seale provided the following opinion \nregarding Claimant’s neck and back condition following his evaluation on \nOctober 18, 2017:           \n The patient’s symptoms began on and after the work injury.  The \npatient has no history of pain in the low back or down the leg prior to the \nwork injury.  Therefore, it is within a certain degree of medical certainty that \nat least 51% of the patient’s current symptoms and need for surgery are \ndirectly related to their work injury.  [emphasis added].    \n  After giving due consideration to the Claimant’s lack of lower back \nsymptoms prior to the work accident, consistent complaints of pain following \nthe accident, and the statements relating to causal connections of his \ntreating physicians, the only reasonable conclusion I can reach is that the \nClaimant sustained a compensable injury to his lower back as the result of \nthe work accident on August 21, 2015.       \n Therefore, I would rule that the Claimant has proved by a \n\n \nJOHNSON - G506453  9\n  \n \n \npreponderance of the evidence that he sustained a compensable injury of \nhis low back.  Further, Claimant continues to actively seek medical \ntreatment for his low back and is entitled to such medical treatment as may \nbe reasonably necessary for this compensable injury.  Additionally, I would \ndefer the issue of wage-loss until the Claimant has reached the end of the \nhealing period for his compensable lower back injury.     \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":11401,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G506453 KENNETH A. JOHNSON, EMPLOYEE CLAIMANT LAND O’FROST, INC., EMPLOYER RESPONDENT PMA MANAGEMENT, CORP., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 12, 2023 Upon review before the FULL COMMISSION in Little Rock...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["hip","neck","back","shoulder"],"fetchedAt":"2026-05-19T22:29:46.112Z"},{"id":"alj-H007376-2023-10-12","awccNumber":"H007376","decisionDate":"2023-10-12","decisionYear":2023,"opinionType":"alj","claimantName":"Kimberly Morehead","employerName":"O. K. Foods Inc","title":"MOREHEAD VS. O. K. FOODS INC. AWCC# H007376 OCTOBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MOREHEAD_KIMBERLY_H007376_20231012.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOREHEAD_KIMBERLY_H007376_20231012.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H007376 \n \nKIMBERLY MOREHEAD, Employee                                                                       CLAIMANT \n \nO. K. FOODS INC., Self-Insured Employer                                                           RESPONDENT \n \n \n \n OPINION FILED OCTOBER 12, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by TANNER THOMAS, Attorney, Little Rock, Arkansas. \n \nRespondent represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 1, 2023, the above captioned claim came on for a hearing at Fort Smith, Arkansas.  \nA pre-hearing conference was conducted on June 1, 2023 and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on August 19, 2020. \n 3.   The respondent has controverted the claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on August 19, 2020. \n2.  If compensable, compensation rate. \n3.  If  compensable,  whether  claimant  is  entitled  to  medical  benefits  and  temporary  total          \n\nMorehead-H007376 \n2 \n \n disability benefits. \n4. Attorney’s fees. \nHowever, at the beginning of the hearing, the parties stipulated that the claimant’s average \nweekly wage was $529.80, which yields a temporary total disability rate of $353.00.  \nAll other issues are reserved by the parties. \nThe claimant contends that “On August 19, 2020, claimant was in the scope and course of \nemployment when she slipped and fell, sustaining injury to her mid and low back. Respondent denied \nthe claim in its entirety and claimant sought treatment on her own. An MRI revealed a disk protrusion \nat  T12-L1  and  L4-5.  Claimant  contends  that  she  sustained  a  compensable  injury  in  the  scope  and \ncourse of employment and that she is entitled to temporary total disability, medical benefits, and that \nher attorney is entitled to an attorney’s fee. All other issues are reserved.” \nThe respondent contends that “Claimant did not sustain a compensable injury as that term is \ndefined by Act 796.”   \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe  her  demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on June 1, \n2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.    Claimant has met her burden of proving that she suffered a compensable injury to her \nback and hip on August 28, 2020.  However, this injury was not reported before September 15, 2020.  \n \n\nMorehead-H007376 \n3 \n \n \n3. Respondent is liable for payment of all reasonable and necessary medical treatment provided \nin connection with claimant's compensable injuries after September 15, 2020. \n4.  Claimant  is  entitled  to  temporary  total  disability  benefits  beginning  September  15,  2020, \nthrough November 23, 2020. \n5. Respondent has controverted claimant's entitlement to all unpaid indemnity benefits. \n FACTUAL BACKGROUND \n At the beginning of the hearing, the parties stipulated that the claimant’s average weekly wage \nwas $529.80, which yields a temporary total disability rate of $353.00.  That stipulation was accepted, \nand that issue was removed from my consideration in this opinion. \nHEARING TESTIMONY \n \n       Claimant was the only witness at this hearing. She testified that she was working at O.K. Foods \nin August 2020 when she injured her back while working as a manifester. That job entails working \nwith a scale, weighing packaged products, and printing the ticket to go on the side of the product. The \nscale claimant was working with was a floor scale, and she estimated that it was six feet by six feet. On \nAugust 19, 2020, claimant testified that she slid on some metal that was around the scale. It was wet \nand became slick, causing her to fall forward onto her hands and knees. She described it as “like a \nbaby crawling.” At the time, she felt a tweak in her back; it didn’t hurt, but she felt something was not \nright.  The  person  that  put  the  product  on  the  scale  tried  to  assist  her,  but  claimant  declined  his \nassistance at first.  He eventually did help claimant to her feet, and she then went to the nurse to report \nthe  incident.  At  the  time,  claimant  was  not  in  pain,  but  believed  it  needed  to  be  reported  in  case \nsomething happened later.  \n Claimant  testified  that  the  incident  happened  on  Wednesday,  August  19,  2020.  Claimant \ncontinued to work that week as well as the next week until August 28, when her hip was hurting so \n\nMorehead-H007376 \n4 \n \n \nmuch, she told her boss that she was going to go home and rest. However, resting over the weekend \ndid not make her hip any better. She testified that when she got out of bed on that morning, she could \nhardly walk to the bathroom and believed something was “really bad wrong with my hip.”  Claimant \nwent to the emergency room on August 31, 2020. She testified that the examination consisted of the \ndoctor pushing a finger into her side. The record from the emergency room reflected that she had a \ndiagnosis of trochanteric bursitis of the left hip. \n Claimant  testified  that  she  went  to  get  the  medication  that  the  emergency  room  doctor \nprescribed for her, and she was in great pain as she walked into the Walmart pharmacy to pick up her \nprescription. When she learned that the prescription wasn’t ready, she returned to her car to wait to \nbe called when the medication was ready because she couldn’t stand there to wait for it. She then had \na tele-health conference with Dr. Terri Lewelling and an in-office visit was scheduled for September \n3,  2020.  Dr.  Lewelling  took  claimant  off  work  until  at  least  September  8,  2020,  but  Dr.  Lewelling \nextended that until claimant returned to work on November 23, 2020. During the time claimant was \ntreated by Dr. Lewelling, she had a CT scan and an MRI.  Claimant was not sure if she went to the \nnurse’s station at work and made a report of an injury after the CT scan or the MRI.\n1\n Claimant said \nthat  the  person  she  talked  to  denied  the  claim.  Following  that  denial,  claimant  stayed  with  Dr. \nLewelling and underwent a course of physical therapy. Claimant said that the physical therapy worked \nvery well, causing her pain to subside. Although surgery had been suggested, claimant determined that \nshe did not want to go through with it. As of the date of the hearing, she said that she felt better, as \nthe pain was not that bad. Claimant said she still has a little bit of pain in her left side and numbness \n \n1\n Claimant’s testimony when asked if she reported this before or after the MRI to someone named Carol, who was \nover the workers’ compensation claims, was “I don’t know for sure.  I’m going to say it was probably after, but I am \nnot really sure.  It had to have been probably after the CAT [sic] scan, but before the MRI, maybe.  I don’t really know \nfor sure.  I am sorry.” \n\nMorehead-H007376 \n5 \n \n \nin her leg, but it has gotten better as she does the physical therapy at home. \n On cross-examination, claimant said that she was working six days a week, Monday through \nSaturday. She related an injury that she had on May 10, 2021, which was also a back injury, but it was \naccepted  by  O.K.  Foods  as  compensable.  Claimant  explained  that  Dr.  Lewelling  did  not  properly \nrecord what she said about walking into Walmart and being in pain, because that is not when her pain \nstarted. She admitted that when she reported the incident on August 19, 2020, to the plant nurse, she \ndenied needing any medical care because she wasn’t hurting. The next time she told anyone at O.K. \nFoods that she had hurt her back at work was after the MRI. Claimant said she didn’t realize that the \nfall on August 19, 2020, had anything to do with her hip hurting. When asked if she reported this as a \nworkers’ compensation claim because of the bill that she was going to receive from the MRI, claimant \nthought her health insurance would pay for it. For an unexplained reason, it did not pay for any of her \ntreatment related to her fall, even after workers’ compensation denied the claim;  however,  Dr. \nLewelling is free for the people that work at O.K. Foods.  \n The following exchange took place between claimant and respondent’s counsel: \nQ. (by Mr. Zuerker) But roughly in that time period, the 24th, okay up until \nthe time you went to talk to Carol, after either the CT or the MRI, did you \ntell anybody that you were missing work because of a job-related injury? \nA (by claimant) No, I didn’t realize that it was a job-related injury. \n \nQ.  Okay.  And  using  those  same  dates,  either  the  MRI  or  CT,  somewhere \naround September 24, up until the point you had that conversation with Carol \nin  September,  did  you  ask  anyone  at  O.K.  Foods  to  provide  you  medical \ntreatment for a job-related injury? \nA. No. Not that I know of. \n \nQ. In fact, when you reported it the day it happened the nurse asked you if \nyou needed medical care, didn’t she? \nA. Yes. She asked if I needed Tylenol or Ibuprofen. \n \nQ. And you told her no? \nA. I said no, that I wasn’t in a lot of pain. \n  \n\nMorehead-H007376 \n6 \n \n \n On redirect-examination, claimant said the pain got gradually worse each day after she fell. On \nAugust 28, 2020, the day that she left work early, she said the pain was probably nine out of ten and \nthen it would have been ten out of ten the following Monday when she went to the emergency room. \nClaimant thought the hours that she was working contributed to some of her issues.  \nREVIEW OF THE EXHIBITS \n \n Claimant  first  went  to  the  emergency  room  on  August  31, 2020,  and  was  diagnosed  with \ntrochanteric bursitis of her left hip. There was no mention of any x-ray or other radiographic testing. \nThe history recorded by Dr. James Russell stated “This is a new problem. The current episode started \ntwo days ago. The problem occurs constantly. The problem has not changed since onset. Pertinent \nnegatives include no chest pain, no abdominal pain, and no headaches. The symptoms are aggravated \nby  walking.  The  symptoms  are  relieved  by  heat  and  lying  down”.  Claimant  was  given  some \nprescriptions and then consulted with her primary care provider, Dr. Terri Lewelling. This was a tele-\nhealth visit and Dr. Lewelling conducted no physical examination of claimant.  \n On  September  3, 2020, claimant went to Dr. Lewelling’s office and was examined. Dr. \nLewelling mentioned the trochanteric bursitis diagnosis from the emergency room but added that she \nbelieved the claimant had lumbar radiculopathy. I do not see that Dr. Lewelling arrived at the diagnosis \nof bursitis on her own during that visit. \n Claimant  had  a  tele-medicine  visit  on  September  10, 2020,  with  Dr.  Lewelling  in  which \nclaimant reported that her hip pain was not better and was radiating down her left leg. Dr. Lewelling \nadded gabapentin to her list of medications.  \n On  September  14, 2020,  there  was  yet  another  tele-medicine  visit,  and  it  appears  that  the \nmention of trochanteric bursitis is only made in reference to the emergency room visit of August 31, \n2020. Due to the deteriorating nature of claimant’s condition, Dr. Lewelling ordered a CT scan of \n\nMorehead-H007376 \n7 \n \n \nclaimant’s lumbar spine. \n The CT scan was conducted on September 15, 2020, with the following impression: \n1. Central  left  lateral  protrusion  at  L4-5  with  facet  hypertrophy,  left  foraminal \nstenosis, and mild canal stenosis. \n2. Calcified  spur/disc  protrusion  at  T12-L1  with  mild  to  moderate  thecal  sac \ncompression. \n3. Additional findings as above. \n \nThe  above  findings  would  include  L5-S1,  central  bulge,  probably  small  central  protrusion \nslightly abutting the ventral thecal sac and S1 nerve roots.   \nDr. Lewelling had a tele-medicine conference with claimant on September 16, 2020, and after \nhaving reviewed the CT scan results, Dr. Lewelling believed that she might need a referral to a surgeon. \nIn this note, Dr. Lewelling recorded the following: “possible accident or event leading to this pain; fell \nat work nine days before she had sx; reports that were not classified as workers’ comp per patient have \nbeen denied. She landed forward on knees and palms; she fell forward, and reports hurt lower part of \nher back and reported it to the night nurse.” Claimant was referred to physical therapy and there was \na referral to spine surgery which included an MRI, which was  performed September 24, 2020. The \nimpression was: \n1. Mild element hypertrophy L4-5 with central to left sicec disc protrusion narrowing \nthe left lateral recess and foramen. \n2. Central disc protrusion T12-L1 with mild canal stenosis. \nAfter  the  MRI,  claimant  again  had  a  tele-health  conference  with  Dr.  Lewelling.  After  Dr. \nLewelling received the results of the MRI, she called claimant to give her the results of the MRI and \nnoted that claimant was already referred to a surgeon for evaluation.  \nDr. Lewelling had another tele-medicine visit with claimant on October 5,  2020, which was \nprimarily to take claimant off work for another week, as was the tele-medicine visit on October 12, \n2020. On October 21, 2020, Dr. Lewellen reported that claimant had been doing physical therapy for \n\nMorehead-H007376 \n8 \n \n \ntwo weeks and felt like it was helping. \nOn  November  4,  2020,  claimant  had  yet  another  tele-medicine  appointment  with  Dr. \nLewelling and reported that she was having no pain currently but still some numbness in the left lower \nextremity.  She  was  to  follow  up  in  two  weeks  to  be  evaluated  to  return  to  work.  During  the  tele-\nmedicine visit of November 18, 2020, claimant was given a note to return to work on November 23, \n2020. She was released to follow up with Dr. Lewelling as needed. \nDEPOSITION TESTIMONY \n Respondent submitted the claimant’s deposition, which was taken on June 27, 2023.  Little in \nit differed from claimant’s testimony at the hearing.  She did, however, explain in more detail how she \ncame to realize that the fall she thought was nothing more than a “tweak” in her back was the source \nof her hip pain:   \nQ. (by Mr. Zuerker) Did you go to work the next day (R. Ex. 2, page 24) \nA. (by claimant) No. They had me off three days with the medication I was \ntaking, but it did not-- it didn't do nothing for me. That's when I went down \nto the O.K. Foods Clinic. \n \nQ.  After three days? \n A.  After three days.  I believe it was three days.  \n \nQ. What did they do for you at the clinic? \nA.  I told her about me going to the emergency room and he told me it was \nbursitis and the medicine wasn't working. When she asked me to explain to \nher the symptoms I was having and when I told her that, you know, this leg \nwas feeling kind of numb, my left leg was feeling numb, she said I think you \nhave a pinched nerve. So, she referred me to get a CAT scan and an MRI. \n \nQ. Okay. \nA.  And when that came back, she said-- I mean she told me that it came back \nI had a pinched nerve. \n \nQ. Up to that point, had you talked to anyone at O.K.  about this being related \nto your fall? \nA.  No, because I wasn't thinking it had anything to do with the  fall. That's \nwhen she said to me you must have fell or something. and I said, oh my God, \nI did like almost two weeks ago. I fell at work and she says I then--- I may not \n\nMorehead-H007376 \n9 \n \n \nbe able to see you if that's the case.\n2\n (R. X. 2, page 25)       \n \nADJUDICATION \n \nTo  prove  a  compensable  injury,  the  claimant  must  establish  by  a  preponderance  of  the \nevidence:  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  that  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) \nestablishing the injury; and (4) that the injury was caused by a specific incident and identifiable by time \nand place of occurrence. If the claimant fails to establish any of the requirements for establishing the \ncompensability of the claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. \nApp. 126, 938 S.W.2d 876 (1997).  \nThe question in this case is whether claimant injured herself at work on August 19, 2020, when \nshe  fell  forward  onto  her  hands  and  knees.  The  other  three  factors  were  amply  established  by  the \nevidence.  The medical records show that there was a disc protrusion in her spine at L-4-5; that is an \nobjective  finding  of  internal  harm  to  her  body.    Claimant  identified  the  time  and  place  of  the \noccurrence, even reporting the incident to the nurse on duty as a twinge in her back, but she did not \nthink it was anything serious.   \nThat leaves the question as to whether the injury arose from the course of her employment, \nand if so, at what point did it become compensable. In order to prove a compensable injury a claimant \nmust  prove,  among  other  things,  a  causal  relationship  between  the  injury  and  the  employment. \nMcMillan  v.  U.S.  Motors,  59  Ark.  App.  85,  953  S.W.2d  907  (1997).  Objective  medical  evidence  is \nnecessary  to  establish  the  existence and  extent  of  an  injury  but  not  essential to  establish  the causal \n \n2\n By way of  context, claimant explained at the hearing that the employees of  O.K.  Foods could see Dr. Lewelling as a \nbenefit of working there.    \n\nMorehead-H007376 \n10 \n \n \nrelationship  between  the  injury  and a  work-related accident. Wal-Mart  Stores, Inc.  v.  VanWagner,  337 \nArk. 443, 990 S.W.2d 522 (1999). Objective medical evidence is not essential to establish the causal \nrelationship  between  the  injury  and  a  work-related  accident  where  objective  medical  evidence \nestablishes the existence and extent of the injury, and a preponderance of other nonmedical evidence \nestablishes a causal relation to a work-related incident. Wal-Mart Stores, Inc. v. Van Wagner, supra; Wal-\nMart Stores, Inc. v. Leach, 74 Ark. App. 231, 48 S.W.3d 540 (2001). While a claimant's testimony is never \nviewed as  uncontroverted,  the  Commission  need  not  reject  the  claimant's  testimony  if  it  finds  that \ntestimony worthy of belief. Ringier America v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993).   \n I found claimant to be credible in all aspects of her testimony.  She did not think at first that \nshe  had  injured  herself  when  she  fell  but did feel something she called a “tweak” in her back \nimmediately.  Over  the  next  nine  days,  however,  her  condition  continued  to  gradually  worsen;  she \nattributed such to the long hours she was working.   In addition to finding the claimant’s testimony at \nthe hearing to be credible, I noted her testimony in her deposition did not materially vary from that \nwhich she presented at the hearing.  Had anything she said in the deposition been inaccurate or even \ndisputed, I would have expected to have heard such at the hearing.  She told of the co-worker that \nhelped her back on her feet when she fell, the nurse to whom she reported the fall, and the woman \ncalled only “Carol” who made the decision to deny the claim were all mentioned in the deposition; \nnone of them refuted what claimant testified to in that deposition or in the hearing.   \n I believe claimant continued to perform her regular job duties through August 28, 2020, while \nthe symptoms attributable to the August 19, 2020, injury did not resolve but rather grew progressively \nworse  until  she  sought  treatment.   The  day  she  tried  to  walk  into Walmart  to  get  the  prescriptions \nfilled was the culmination of what had been building for days, especially after she left work early on \nAugust 28, 2020. Because she did not yet appreciate the full extent of her August 19, 2020, injury, she \n\nMorehead-H007376 \n11 \n \n \ndid not tell the doctor in the ER about it.  As she related in her deposition, it wasn’t until Dr. Lewelling \nindicated that her symptoms were consistent with a fall that claimant made the connection between \nthat incident and the pain in her hip.  Based on her credible testimony and the lack of any proof to \nthe contrary, I find claimant has met her burden of proving that she suffered an injury on August 19, \n2020.  However, an injury does not become compensable until the claimant first learns the extent of \nher injuries and is off work for a period that would entitle her to benefits for a compensable injury. \nCalion Lumber Co. v. Goff, 14 Ark. App. 18, 684 S.W.2d 272 (1985).  That date would be August 28, \n2020, when claimant left work early due to the pain in her hip.  \nHowever, that does not end my analysis of this matter, as respondent raised a defense that  \nclaimant did not report her injury until September 24, 2020.   \nArkansas Code Annotated §11-9-701 (a)(1) provides:  \n(a)(1)  Unless  an  injury  either  renders  the  employee  physically  or  mentally \nunable  to  do  so,  or  is  made  known  to  the  employer  immediately  after  it \noccurs,  the  employee  shall  report  the  injury  to  the  employer  on  a  form \nprescribed or approved by the Workers' Compensation Commission and to a \nperson or at a place specified by the employer, and the employer shall not be \nresponsible  for  disability,  medical,  or  other  benefits  prior  to  receipt  of  the \nemployee's report of injury. \n \n Respondent did not present any additional proof on this issue, relying on claimant’s testimony \nas to when this injury was reported as a work-related injury.  Claimant herself conceded that it was \nnot reported as such until after either she had the CT scan, which was performed on September 15, \n2020, or the MRI on September 24, 2020—but she wasn’t sure which of the two it was.   Since no \nrepresentative  of  respondent  testified  as  to  when  the  report  was  made,  it  failed  to  prove  by  a \npreponderance  of  the  evidence  that  no  claim  was  made  before  September  24,  2020;  claimant  was \nequivocal on the date she made her report.  However, respondent did prove by a preponderance of \nthe evidence that no claim was made before September 15, 2020, as claimant conceded that there was \n\nMorehead-H007376 \n12 \n \n \nnothing reported about a work-related injury before the CT scan.  \n Having decided in claimant’s favor on the issue of compensability and in respondent’s favor \non the lack of notice before September 15, 2020, I turn now to the medical and indemnity benefits \naward.  I  am  convinced  that  all  of  claimant's  medical  treatment  after  September  15,  2020,  was \nreasonable and necessary.  She is entitled to reimbursement for any out-of-pocket medical expenses \nshe incurred. I further find that claimant was not able to work between September 15, 2020, until she \nwas released to return to full duty by Dr. Lewelling on November 23, 2020, and is entitled to temporary \ntotal disability during that period.  \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nAll issues not addressed herein are expressly reserved under the Act. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $559.45. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":24838,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H007376 KIMBERLY MOREHEAD, Employee CLAIMANT O. K. FOODS INC., Self-Insured Employer RESPONDENT OPINION FILED OCTOBER 12, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Arkansas. Claimant represented by TANNER T...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","hip","lumbar"],"fetchedAt":"2026-05-19T23:01:34.818Z"},{"id":"alj-H300188-2023-10-12","awccNumber":"H300188","decisionDate":"2023-10-12","decisionYear":2023,"opinionType":"alj","claimantName":"Jayne Phillips","employerName":"Khkw Logistics LLC","title":"PHILLIPS VS. KHKW LOGISTICS LLC AWCC# H300188 OCTOBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Phillips_Jayne_H300188_20231012.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Phillips_Jayne_H300188_20231012.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H300188 \n \n \nJAYNE PHILLIPS, EMPLOYEE CLAIMANT \n \nKHKW LOGISTICS LLC, \n EMPLOYER RESPONDENT \n \nBRIDGEFIELD CASUALTY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 12, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on October  12, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  October 12,  2023,  in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nWithout  objection,  the  Commission’s  file  on  the  claim  has  been  incorporated \nherein in its entirety by reference. \n The record reveals the following procedural history: \n Claimant,  through  then-counsel  Laura  Beth  York,  filed  a  Form  AR-C on \nJanuary  18,  2023,  asking  for  the  full  range  of  initial  and  additional  benefits  and \n\nPHILLIPS – H300188 \n2 \n \nalleging  that  Claimant  suffered  compensable  injuries  to  her  neck,  back,  left \nshoulder,  right  shoulder  and  other  whole  body on December  29,  2022.    Per  the \nForms AR-2  that  were  filed  on  January  10  and 26,  2023,  Respondents  initially \naccepted the claim as compensable before electing to controvert it in its entirety. \n On February 15, 2023, York moved to withdraw from the case.  In an order \nentered on February 28,  2023,  the  Full  Commission  granted  the  motion  under \nAWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  took  place  on  this  claim  until \nAugust 3, 2023, when Respondents filed the instant Motion to Dismiss.  Therein, \nthey argued that dismissal of the claim was warranted because “[n]o further efforts \nto  prosecute  the  claim  have  been  made”  since  the  filing  of  the  Form  AR-C.    On \nAugust  8,  2023,  my  office  wrote  Claimant,  asking  for  a  response  to  the  motion \nwithin 20  days.    This  certified  letter  was  claimed  by  someone  with  an  illegible \nsignature  on  August  11,  2023;  and  the  first-class  letter  containing  the  same \ncorrespondence,  sent  to  the  address  supplied  to  the  Commission  by  Claimant, \nwas  not  returned.    Nonetheless,  no  response  from  her  was  forthcoming.    On \nAugust  30,  2023,  a  hearing  on  Respondents’  motion  was  scheduled  for October \n12, 2023, at 9:30 a.m. at the Commission in Little Rock, Arkansas.  The Notice of \nHearing was sent to Claimant by certified and first-class mail to the same address \nas before.  In this instance, the United States Postal Service was unable to verify \nwhether  Claimant  had  claimed  the  certified  letter.    But  the  first-class  letter  was \n\nPHILLIPS – H300188 \n3 \n \nnever  returned.    Thus,  the  evidence  preponderates  that  the  notice  reached  its \nproper destination. \n The  hearing  proceeded  as  scheduled  on  October  12,  2023.    Again, \nClaimant  failed  to  appear  at  the  hearing.    But  Respondents  appeared through \ncounsel and argued for dismissal under AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The  Arkansas Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The parties were provided reasonable notice of the  Motion to Dismiss and \nof the hearing thereon. \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that \nClaimant has failed to prosecute her claim. \n4. Respondents  have  proven  by  a  preponderance  of  the  evidence  that  this \nclaim should be dismissed under AWCC R. 099.13. \n5. The Motion to Dismiss is hereby granted. \n6. This claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \n\nPHILLIPS – H300188 \n4 \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove  by  a  preponderance  of  the  evidence  that  this  claim  should  be  dismissed.  \nThis  standard  means  the  evidence  having  greater  weight  or  convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because he has taken no further action in \npursuit of it (including appearing at the October 12, 2023, hearing to argue against \nits  dismissal)  since  the  filing  of her  Form  AR-C  on  January  18,  2023.    Thus, \ndismissal  is  warranted  under  Rule  13.    Respondents  have  met  their  burden  of \nproof in this matter. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \n\nPHILLIPS – H300188 \n5 \n \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).  At  the  hearing,  Respondents  requested  a  dismissal \nwithout prejudice.   Based on the  foregoing, I agree and  find that the dismissal of \nthis claim should be and hereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7064,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H300188 JAYNE PHILLIPS, EMPLOYEE CLAIMANT KHKW LOGISTICS LLC, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INS. CO., CARRIER RESPONDENT OPINION FILED OCTOBER 12, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on October 12, 2023, in Little R...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":["neck","back","shoulder"],"fetchedAt":"2026-05-19T23:01:36.961Z"},{"id":"alj-H106924-2023-10-12","awccNumber":"H106924","decisionDate":"2023-10-12","decisionYear":2023,"opinionType":"alj","claimantName":"Terry Sanders","employerName":"Airgas USA, LLC","title":"SANDERS VS. AIRGAS USA, LLC AWCC# H106924 OCTOBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SANDERS_TERRY_H106924_20231012.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SANDERS_TERRY_H106924_20231012.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H106924 \n \nTERRY SANDERS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nAIRGAS USA, LLC \nEMPLOYER                                                                                                         RESPONDENT  \n \nAIU INS. CO./GALLAGHER BASSETT SERVICES, INC. \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \nOPINION AND ORDER FILED OCTOBER 12, 2023, \nDENYING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \nHearing conducted on Tuesday, October 10, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Terry Sanders, pro se, of El Dorado, Ouachita County, Arkansas, appeared in \nperson at the hearing. \n \nThe respondents were represented by the Honorable Rick Behring, Jr., Newkirk & Jones Law \nFirm, PLLC, Little Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on Tuesday, October 10, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Repl.). \n The respondents filed a motion to dismiss and brief in support thereof with the Commission \non August 4, 2023, requesting this claim be dismissed without prejudice for lack of prosecution. \nIn accordance with applicable Arkansas law, the claimant was mailed due and proper legal notice \nof the respondents’ motion to dismiss, as well as a copy of the hearing notice at his addresses of \nrecord  via  the  United  States  Postal  Service  (USPS),  First  Class  Certified  Mail,  Return  Receipt \nrequested. Thereafter, the claimant appeared in person on his own behalf at the subject hearing. \n\nTerry Sanders, AWCC No. H106924 \n2 \n \n The claimant and the respondents’ attorney had a chance to visit immediately prior to the \nsubject hearing. The claimant requested the respondents allow him to see a physician for his left \nshoulder, and the respondents agreed with this request. The claimant also contends he sustained a \ncompensable  injury  to  his  lower  back,  which  claim  the  respondents  deny  in  its  entirety.  The \nclaimant testified he returned to work at his regular job duties over a year ago, and he has been \nworking ever since as a forklift driver. He testified he has been able to “adapt” and to perform all \nhis required job duties.  \n At  the  subject  hearing,  the  claimant  requested  a  hearing  on  the  merits  of  his  claim  and, \nspecifically,  whether  his  alleged  lower  back  problems  are  compensable.  Thereafter,  the  ALJ \nstrongly encouraged the claimant to retain the services of a workers’ compensation attorney. The \nALJ also gave the claimant the toll-free telephone number to the Commission’s Legal Advisors’ \nDivision. \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and/or attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute her claim at this time. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n\nTerry Sanders, AWCC No. H106924 \n3 \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1.   The Commission has jurisdiction of this claim. \n \n 2.   After  having received due and legal notice of the respondents’ motion to \n dismiss, as well as due and legal notice of the subject hearing, the claimant \n appeared pro se at the hearing. \n \n      3.   The claimant specifically requested a hearing on the merits of his claim at \n            the hearing. \n \n                              4.  Therefore, the respondents’ motion to dismiss without prejudice filed \n                         with the Commission on August 4, 2023, should be and hereby is DENIED. \n \n                              5.  The ALJ’s office will mail the parties the prehearing questionnaire and other \n                         related documents, and this claim will be scheduled for a prehearing \n    conference in due course.  \n \n AGAIN,  THE  CLAIMANT  IS  STRONGLY  ENCOURAGED  TO  RETAIN  THE \nSERVICES  OF  AN  ATTORNEY  OF  HIS  OWN  CHOOSING  TO  REPRESENT  HIM  IN \nTHIS MATTER. \n The  respondents  shall pay  the  court  reporter’s  invoice  within  twenty  (20)  days  of  their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5610,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H106924 TERRY SANDERS, EMPLOYEE CLAIMANT AIRGAS USA, LLC EMPLOYER RESPONDENT AIU INS. CO./GALLAGHER BASSETT SERVICES, INC. INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED OCTOBER 12, 2023, DENYING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE He...","outcome":"dismissed","outcomeKeywords":["dismissed:3","denied:1"],"injuryKeywords":["shoulder","back"],"fetchedAt":"2026-05-19T23:01:39.021Z"},{"id":"alj-H300887-2023-10-12","awccNumber":"H300887","decisionDate":"2023-10-12","decisionYear":2023,"opinionType":"alj","claimantName":"Torrence Shelton","employerName":"Diamond Constr. Co., Inc","title":"SHELTON VS. DIAMOND CONSTR. CO., INC. AWCC# H300887 OCTOBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SHELTON_TORRENCE_H300887_20231012.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHELTON_TORRENCE_H300887_20231012.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H300887 \n \nTORRENCE L. SHELTON, \nEMPLOYEE                                                                                                              CLAIMANT \n \nDIAMOND CONSTR. CO., INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nACCIDENT FUND INS. CO. OF AMERICA, \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \nOPINION AND ORDER FILED OCTOBER 12, 2023, \nGRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE \n \nHearing conducted on Tuesday, October 10, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Torrence L. Shelton, pro se, of North Little Rock, Pulaski County, Arkansas, \nfailed and/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Carol Lockard Worley, Worley, Wood & \nParrish, P.A., Little Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on Tuesday, October 10, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Repl.). \n The respondents filed a  (second) motion to dismiss with the Commission on August 15, \n2023,  requesting  this  claim  be  dismissed  without  prejudice  for  lack  of  prosecution.  (The \nrespondents previously had filed a motion to dismiss with the Commission on August, 10, 2023.)  \nIn accordance with applicable Arkansas law, the claimant was mailed due and proper legal notice \nof the respondents’ motion to dismiss, as well as a copy of the hearing notice at his addresses of \nrecord  via  the  United  States  Postal  Service  (USPS),  First  Class  Certified  Mail,  Return  Receipt \nrequested. The Rainwater, Holt & Sexton law firm initially had represented the claimant in this \n\nTorrence L. Shelton, AWCC No. H300887 \n2 \n \nmatter;  however,  the  claimant  apparently  became  unhappy  with  their  representation,  which  he \nexpressed in a handwritten letter to the ALJ dated August 28, 2023. This letter stated the claimant \nwas, “...requesting  a  hearing  for  reason  I  am  not  being  properly  represented  in  my  case  on  the \nmatter.” (See, Commission’s file, herein incorporated by reference into the record; see, infra.). But \nsignificantly, the claimant did not request a hearing on the merits of his claim, nor did he nor has \nhe ever stated what specific benefits he is seeking.  \n  Also  significantly,  the  claimant  failed  and/or  refused  to  appear  at  the  subject  hearing  to \nexplain  his  letter,  and/or  to  request  a  hearing.  While  apparently  the  claimant  did  appear  at  the \nCommission on the day of the hearing, he decided to leave the Commission premises before the \nhearing was held. In addition, the respondents’ highly credible and well-respected counsel advised \non  the  record  the  claimant  refused her attempt to lead him to the Commission’s Legal Advisor \nDivision  where  he  could  have  visited  with  a  legal  advisor.  Instead,  the  claimant  simply  left  the \nbuilding and, ultimately, failed and/or refused to appear at the subject hearing.   \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and/or attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim and, apparently, has chosen to abandon his claim at this time. \n\nTorrence L. Shelton, AWCC No. H300887 \n3 \n \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1.   The Commission has jurisdiction of this claim. \n \n2.   After having received due and legal notice of the respondents’ motion to  \n   dismiss, as well as due and legal notice of the subject hearing, the claimant \n   failed and/or refused to appear at the hearing. Therefore, the \n      claimant has waived his right to a hearing on the respondents’ motion to  \n   dismiss.  \n \n3.   The claimant has failed to prosecute his claim and, moreover, to date has  \n failed to request a hearing on the merits of his claim. The Commission does  \n not have jurisdiction over the claimant’s current complaint that his counsel  \n allegedly did not “properly represent” him in this matter.  \n \n4.   Therefore, the respondents’ motion to dismiss without prejudice filed with \n   the Commission on August 15, 2023, should be and hereby is GRANTED \n   pursuant to both Ark. Code Ann. Section 11-9-702(a)(4) and Commission  \n   Rule 099.13. \n \n Nothing in this opinion and order shall be construed to prevent the claimant, any attorney \nhe may hire to represent him, or  any person  acting  on his behalf  from  refiling this claim, if the \nclaim is refiled within the deadlines set forth in Ark. Code Ann. Section 11-9-402.  \n The  respondents  shall pay  the  court  reporter’s  invoice  within  twenty  (20)  days  of  their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \nMP/mp","textLength":6277,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300887 TORRENCE L. SHELTON, EMPLOYEE CLAIMANT DIAMOND CONSTR. CO., INC., EMPLOYER RESPONDENT ACCIDENT FUND INS. CO. OF AMERICA, INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED OCTOBER 12, 2023, GRANTING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJU...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:01:41.153Z"},{"id":"alj-H301091-2023-10-12","awccNumber":"H301091","decisionDate":"2023-10-12","decisionYear":2023,"opinionType":"alj","claimantName":"Diana Watkins","employerName":"Smith House, Inc","title":"WATKINS VS. SMITH HOUSE, INC. AWCC# H301091 OCTOBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Watkins_Diana_H301091_20231012.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Watkins_Diana_H301091_20231012.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H301091 \n \n \nDIANA L. WATKINS, EMPLOYEE CLAIMANT \n \nSMITH HOUSE, INC., EMPLOYER RESPONDENT \n \nTECHNOLOGY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 12, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  October  6, \n2023, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se. \n \nRespondents  represented  by  Mr.  William  C.  Frye,  Attorney  at  Law,  North  Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the Commission  on  Respondents’ Motion  to \nDismiss.    A  hearing  on  the  motion  was  conducted  on  October  6,  2023,  in \nJonesboro, Arkansas.  Claimant, who is pro se, appeared in person and testified.  \nRespondents were represented at the hearing by Mr. William C. Frye, Attorney at \nLaw,  of  North Little  Rock,  Arkansas.    In  addition  to  Claimant’s  testimony,  the \nrecord  consists  of  (1) the  Commission’s  file–which,  without  objection,  has  been \nincorporated herein  in its  entirety  by  reference;  and  Respondents’ Exhibit 1,  the \ncomplaint filed on January 6, 2023, in Diana Watkins v. Houseworth Hotels, d/b/a \nComfort Inn of Blytheville and Smith-House, Inc., d/b/a Comfort Inn of Blytheville, \nMississippi  County  Circuit  Court  No.  4BCV-23-4,  consisting  of  five  numbered \npages. \n\nWATKINS – H301091 \n \n2 \n The evidence reflects that  per the First Report of Injury or  Illness filed on \nFebruary  21,  2023  ,  Claimant  purportedly  sustained  injuries  to  her  left  foot  and \nankle on February 19, 2022, when she fell on a snow and ice-covered parking lot \nat  work.    According  to  the  Form  AR-2  that  was  filed  on  February  22,  2023, \nRespondents  controverted  the  claim  in  its  entirety.    On February 16,  2023  , \nClaimant  (through then-counsel  Kevin Graham)  filed a Form AR-C.  Therein, he \nclarified  that  the  date  of  the  injury  was  February  22,  2021,  and  alleged  the \nfollowing: \nDiana Watkins was on the Comfort Inn Parking lot and had gone to \nher  vehicle  to  retrieve  a  personal  item.    There  had  been  three  (3) \nrecord snow and ice storms.  As she exited her vehicle, she took a \nstep  on  her  left  foot  and  she fell  due  to  the  snow  and  ice.  \nEmployee sustained a left ankle fracture requiring surgery. \n \nNo  hearing  request  accompanied  this  filing.    Respondents’  counsel  made  his \nentry  of  appearance  before  the  Commission  on  February  23,  2023;  and  in  an \nemail  on  March  8,  2023,  reiterated  that  the  claim  was  being  controverted  in  its \nentirety. \n This alleged fall was also the subject of a civil action.  On January 6, 2023, \nClaimant  through  Graham  filed  a  lawsuit  against  Respondent  employee  and \nother  parties  in  Mississippi  County  Circuit  Court.    Claimant  later  dismissed  this \naction  and  terminated  Graham’s  services.    Following  this,  on  May  1,  2023,  he \nmoved to withdraw from his representation of her in the instant claim as well.  In \nan  order  entered  on  May  11,  2023,  the  Full  Commission  granted  the  motion \nunder AWCC Advisory 2003-2. \n\nWATKINS – H301091 \n \n3 \n The  record  reflects  that  no  further  action  took  place  on  the  claim  until \nAugust 9, 2023, when Respondents filed the instant Motion to Dismiss.  Therein, \nthey  argued  that  dismissal  was  warranted  under  AWCC  R.  099.13 because “no \naction has been taken in this matter since the Claimant filed the AR-C . . . .”  The \nfile  was  assigned  to  me  on  August  10,  2023;  and  on  that  same  day,  my  office \nwrote  Claimant,  asking  her  to  respond  to  the  motion  within  20  days.    The  letter \nwas sent to her by first-class and certified mail.  Claimant signed for the certified \nletter on August 15, 2023; and the first-class letter was not returned.  Regardless, \nno response was forthcoming. \n On  August  31,  2023,  I  scheduled  this  hearing  for  October  6,  2023,  at \n10:30  a.m.  at  the  Craighead  County  Courthouse  in  Jonesboro.  The  certified \nmailing to Claimant was claimed on September 2, 2023; and the first-class letter \nwas  not  returned.    During  the  hearing,  Respondents argued for  dismissal  under \nRule 13.  Claimant opposed this. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including   medical   reports, \ndocuments,  and other matters  properly before  the  Commission,  and  having  had \nan  opportunity  to  hear  the  testimony  of  Claimant,  I  hereby  make  the following \nFindings  of  Fact  and  Conclusions  of  Law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nWATKINS – H301091 \n \n4 \n2. All  parties  received  notice  of  the  Motion  to  Dismiss  and  the  hearing \nthereon pursuant to AWCC R. 099.13. \n3. Respondents  have  not  proven  by  a  preponderance  of  the  evidence  that \nClaimant has failed to prosecute th is claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, denied without prejudice. \n5. Claimant has requested a hearing on this claim. \n6. This claim will proceed to a hearing on the merits. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Respondents must \nprove by a preponderance of the evidence that dismissal should be granted.  The \nstandard  “preponderance  of  the  evidence”  means  the  evidence  having  greater \nweight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson \nWorld Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n\nWATKINS – H301091 \n \n5 \n37 S.W.3d 649 (2001).  The Commission must sort through conflicting evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it deems \nworthy of belief.  Id. \n At the hearing, Claimant admitted that she received the Notice of Hearing.  \nAsked to explain why she did not respond to the 20-day letter, she testified: \nI  was  going  to  write  you  a  letter,  but  my  husband  went  in  the \nhospital and I—and  when he got out  [of] the hospital he went right \nback  and  my  20  days  was  up.    When  I  go[t]  home  from  that  last \nhospital visit, I was going to write you a letter and that’s when I got \nthe letter about the hearing today from y’all. \n \nShe  acknowledged  that  she  did  not  seek  an  extension  of  time  from  my  office \nwithin  which  to  respond.    Claimant  also  stated  that  she  has  been  preoccupied \nwith the aftermath of a motor vehicle accident in which she was involved earlier \nin 2023. \n The following exchange took place: \nQ. What,  if  anything,  have  you  done  since  [Graham]  withdrew \nfrom the case? \n \nA. Nothing. \n \nShe has not treated for any of her alleged work-related injuries in over two years.  \nIt  was  her  testimony  that  she  missed  eight  months  of  work  due  to  her  alleged \ninjuries. \n\nWATKINS – H301091 \n \n6 \n Claimant  objected  to  dismissal  of  her  claim, asked for  a  hearing  thereon, \nand explained that her lack of pursuit of the matter thus far had been due to her \nbeing  overwhelmed  by  events  in  her  personal  life,  including  her  husband’s \nhospitalization. \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  hearing  on  the  Motion  to \nDismiss  under  Rule 13,  Claimant has not  yet  abridged  that  rule.    The  Motion  to \nDismiss  is  thus  denied  without  prejudice.  Prehearing  questionnaires  will  be \nimmediately issued to the parties, and this matter will proceed to a full hearing on \nthe merits. \nCONCLUSION \n Based  on  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth  above, \nRespondents’ Motion to Dismiss is hereby denied without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":9019,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H301091 DIANA L. WATKINS, EMPLOYEE CLAIMANT SMITH HOUSE, INC., EMPLOYER RESPONDENT TECHNOLOGY INS. CO., CARRIER RESPONDENT OPINION FILED OCTOBER 12, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on October 6, 2023, in Jonesboro, Craighe...","outcome":"dismissed","outcomeKeywords":["dismissed:3","denied:2"],"injuryKeywords":["ankle","fracture","back"],"fetchedAt":"2026-05-19T23:01:43.229Z"},{"id":"alj-H205069-2023-10-11","awccNumber":"H205069","decisionDate":"2023-10-11","decisionYear":2023,"opinionType":"alj","claimantName":"Erica Bearfield","employerName":"Rock Region Metro","title":"BEARFIELD VS. ROCK REGION METRO AWCC# H205069 & H304225 OCTOBER 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Bearfield_Erica_H205069_H304225_20231011.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bearfield_Erica_H205069_H304225_20231011.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H205069 & H304225 \n \nERICA BEARFIELD, EMPLOYEE CLAIMANT \n \nROCK REGION METRO, \nEMPLOYER RESPONDENT \n \nATA WC TRUST,  \nCARRIER/TPA                       RESPONDENT \n \nOPINION FILED OCTOBER 11, 2023 \n \nHearing before Administrative Law Judge Steven Porch on September 28, 2023, in Little \nRock, Arkansas. \n \nClaimant  represented  by  Mr.  Steven  R.  McNeely,  Attorney  at  Law,  Jacksonville, \nArkansas. \n \nRespondents  were  represented  by  Ms.  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A full  hearing  was  held  on  this  claim  on  September 28,  2023.    Claimant  was \nrepresented  by  Mr.  Steven  R.  McNeely,  Attorney  at  Law,  Jacksonville,  Arkansas; \nRespondents  were  represented  by  Ms.  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n \n2. An employer/employee relationship existed on 9/3/21 when Claimant \nalleges to have sustained a compensable injury to her right shoulder \nand   on   3/15/2022   when   Claimant   allegedly   sustained   and \naggravation to her right shoulder. \n \n3. Respondents  initially  accepted  the  claim  as  medical  only  and  paid \nsome benefits. Respondents now deny claims in their entirety. \n\nBEARFIELD H205069 & H304225 \n \n2 \n \n \n 4.  The parties  will  stipulate  to  Claimant’s  average  weekly  wage  and \ncompensation rates on or before the hearing date. \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether  Claimant  sustained  a  compensable  injury  to  her  right  shoulder  on \n9/3/2021. \n \n2.  Are there objective findings of an acute injury on 9/3/2021. \n \n3.  Whether Claimant is entitled to reasonable medical and indemnity benefits from \nthe date onset to a yet undetermined date. \n \n4.  Whether  Claimant  sustained  a  compensable  injury  to  her  right  shoulder  on \n3/15/2022. \n \n5.  Are there objective findings of an acute injury on 3/15/2022. \n \n6.  Whether Claimant is entitled to reasonable and necessary medical treatment, \nincluding two surgeries performed by Dr. Lawrence O’Malley, including out of \npocket expense, mileage and reimbursement for private health insurance. \n \n7.  Whether Claimant is entitled to Temporary Total Disability (TTD) following her \n3/15/2022 injury for approximately 8 months, specific dates to be provided. \n \n8.  Attorney’s fees.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s  and  Respondents’  contentions  are  set  out  in  their  responses  to  the \nPrehearing Questionnaire.  Said contentions are hereby incorporated by reference.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \nClaimant and Respondents’ post hearing briefs that are blue-backed and made a part of \n\nBEARFIELD H205069 & H304225 \n \n3 \n \nthis  record  and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity to hear the testimony of the Claimant, Erica Bearfield, the sole witness in this \nclaim,  and  observe  her  demeanor,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1.  The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The  Claimant  has  proven  by  the  preponderance  of  the  evidence  that  she \nsustained  a  compensable  injury  to  her  right  shoulder  during  the  course  and \nscope  of  employment  on  March  15,  2022.  The  Claimant  did  not  prove  a \ncompensable rapid and repetitive injury to her right shoulder on September 3, \n2021. \n4.   The  Claimant  is  entitled  to  reasonable  and  necessary  medical  treatment, \nincluding two surgeries performed by Dr. Lawrence O’Malley, including out of \npocket expense, mileage and reimbursement for private health insurance. \n5.   Claimant is entitled to TTD following her March 15, 2022, injury. \n6.  Claimant has proven by the preponderance of the evidence that her attorney is \nentitled to controverted attorney fees. \nCASE IN CHIEF \nSummary of Evidence \n The  sole  witness  at  the  hearing  was  the  Claimant.  In addition  to the  prehearing \norder discussed above, I also have admitted into evidence Claimant’s and Respondent’s \nexhibits  that  were  properly  admitted  before  the  Commission.  Claimant  suffered  a \n\nBEARFIELD H205069 & H304225 \n \n4 \n \ncompensable injury to her right shoulder during the course and scope of her employment \nwith  Respondent.  Claimant  is  a 48-year-old  city  bus  driver.  Claimant  has  worked  for \nRespondent as a city bus driver for over 17 years. September 3, 2021, during the Covid \npandemic,  was  the  first  time  the  Claimant  felt  pain  in  her  right  shoulder.  Respondent \nplaced sneeze shields on the buses to protect their employees. The shield separated the \npassengers  from  the  driver.  When  passengers  boarded  the  front  of  the bus  where  the \ndriver  sat,  the driver  manually  opened  the shield  to  a position  that  would  separate  her \nfrom the passengers boarding the bus. This maneuver also allowed the passengers to \nfind a seat on the bus. When all passengers were on the bus and behind the yellow safety \nline,  the  driver  would  then  close  the  shield  separating  her  again  from  the rest  of  the \npassengers.  \nThe Claimant’s job involved working an 8-hour shift. Claimant, within one hour of \nwork, opens and closes the shield 30 to 35 times, lowers the bus 30 to 35 times, process \npasses 20 to 35 times, accept money in a slot 10 to 15 times. All these activities involve \nthe extension and retraction of Claimant’s right shoulder. Claimant testified that she uses \nher  right  arm  and  shoulder  90%  of  the  time  while  on  the  job.  The  shoulder  pain  on \nSeptember 3, 2021, was accepted by Respondent as medical-only. Claimant received a \nsteroid  shot  to  her  right  shoulder.  However, Claimant’s  attorney  has  acknowledged, \nduring  the  hearing,  that  there  were  no  objective  findings  for  the  alleged  September  3, \n2021, right shoulder injury.  \nHowever, regarding the March 15, 2022, injury, according to Claimant’s testimony, \nwhile working an 8-hour shift, continuing to do all of the same things as mentioned above, \nClaimant’s shoulder popped while opening the shield on her bus. That same day while \n\nBEARFIELD H205069 & H304225 \n \n5 \n \nsecuring a wheelchair her shoulder was hurting “real bad”. This pain was worse than the \nSeptember 3, 2021, pain. Claimant went home and woke up the next day and was unable \nto  raise  her  right  arm  above  her  head  to  put  on  her  shirt.  Claimant  made  Respondent \naware that she could not go to work due to her injury. Claimant testified that there were \nno intervening activities, outside of work, that would have contributed to the pop of her \nright shoulder. Claimant’s right shoulder was operated upon by Dr. Lawrence O’Malley \nwho repaired tears in the right shoulder. Since Claimant’s attorney admitted to the lack of \nobjective findings for the September 3, 2021, alleged injury, the focus of this opinion will \nbe on the March 15, 2022, alleged injury.  \nAdjudication \nA.  Whether Claimant is entitled to reasonable and necessary medical treatment, \nincluding two surgeries performed by Dr. Lawrence O’Malley, including out of \npocket expense, mileage and reimbursement for private health insurance. \n \n Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \nmedical services or results in disability or death.  An injury is “accidental” \nonly if it is caused by a specific incident and is identifiable by time and place \nof occurrence[.] \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe  element  “arising  out  of  .  .  .  [the]  employment”  relates  to  the  causal  connection \n\nBEARFIELD H205069 & H304225 \n \n6 \n \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when  a  causal  connection  between  work  conditions  and  the  injury  is  apparent  to  the \nrational mind.”  Id. \n In Hudak-Lee  v.  Baxter  County  Reg.  Hosp.,  2011  Ark.  31,  378  S.W.3d  77,  the \nArkansas Supreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and \nin  the  course of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i)  (Supp. \n2009).  A compensable injury does not include an injury that is inflicted upon \nthe employee at a time when employment services are not being performed. \nArk.  Code  Ann.  §  11-9-102(4)(B)(iii)  (Supp.  2009).    The  phrase  “in  the \ncourse of employment” and the term “employment services” are not defined \nin  the Workers'  Compensation Act.   Texarkana Sch.  Dist.  v.  Conner,  373 \nArk. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court to define these \nterms in a manner that neither broadens nor narrows the scope of the Act.  \nId. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \nthe course and scope of employment.  Jivan v. Econ. Inn & Suites, 370 Ark. \n414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred within \nthe time and space boundaries of the employment, when the employee was \ncarrying out the employer's purpose or advancing the employer's interest, \ndirectly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 S.W.3d 57, we stated \nthat where it was clear that the injury occurred outside the time and space \nboundaries of employment, the critical inquiry is whether the interests of the \nemployer were being directly or indirectly advanced by the employee at the \ntime  of  the  injury.    Moreover,  the  issue  of  whether  an  employee  was \nperforming employment services within the course of employment depends \non the particular facts and circumstances of each case.  Id. \n \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.  Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \n\nBEARFIELD H205069 & H304225 \n \n7 \n \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness but may accept and translate into findings of fact only those portions of \nthe testimony that it deems worthy of belief.  Id. \nThe  Claimant  has  satisfied  her  burden  with  objective  findings  as  to her  work-\nrelated  right  shoulder  injury.  The  Claimant  acknowledged  she  heard  a  pop  in  her  right \nshoulder and felt greater pain while securing a wheelchair on the bus than she did with \nthe  September  3,  2021,  alleged  injury  to  the  same  shoulder. I  find  the  Claimant’s \ntestimony   credible.   These   things   occurred   during   the   course   and   scope   of   her \nemployment.  The  Claimant  sustained  right  shoulder  biceps  tearing  per  Dr. Lawrence \nO’Malley. I credit Dr. O’Malley’s medical opinion since he has seen the tears and repaired \nthem.  Thus,  I  find  by  the  preponderance  of  the  evidence  that  Claimant  did  meet  her \nburden and her right shoulder claim is granted as to the March 15, 2022, injury. However, \ndoes this entitle Claimant to reasonable and necessary medical treatment? \n \n \n\nBEARFIELD H205069 & H304225 \n \n8 \n \nB.  Whether Claimant is entitled to reasonable and necessary medical treatment, \nincluding two surgeries performed by Dr. Lawrence O’Malley, including out of \npocket expense, mileage and reimbursement for private health insurance. \n \nArkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states  that  an \nemployer  shall  provide  for  an  injured  employee  such  medical  treatment  as  may be \nnecessary in connection with the injury received by the employee.  Wal-Mart Stores, Inc. \nv. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only for \nsuch treatment and services as are deemed necessary for the treatment of the claimant’s \ninjuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  The claimant \nmust prove by a preponderance of the evidence that medical treatment is reasonable and \nnecessary for the treatment of a compensable injury.  Brown, supra; Geo Specialty Chem. \nv. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).  What constitutes reasonable and \nnecessary   medical   treatment   is   a  question   of  fact  for   the   Commission.   White \nConsolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As the Arkansas Court of Appeals has held, a claimant may be entitled to additional \ntreatment  even  after  the  healing  period  has  ended,  if  said  treatment  is  geared  toward \nmanagement of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 \n(1983).  Such services can include those for the purpose of diagnosing the nature and \nextent  of  the  compensable  injury;  reducing  or  alleviating  symptoms  resulting  from  the \ncompensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing  further \ndeterioration of the damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n\nBEARFIELD H205069 & H304225 \n \n9 \n \nClaimant needed surgery to repair the tears in her right shoulder. Otherwise, she \nwould  not  be  able  to  get  her  hand  and  arm  above  her  shoulder.  Thus,  I  find  by  the \npreponderance  of  the  evidence  that  Claimant  is  entitled  to  reasonable  and  necessary \nmedical  treatment,  including  the  two  surgeries  performed  by  Dr. Lawrence  O’Malley, \npocket expenses, mileage, and reimbursement of private health insurance. I also find that \nRespondents are entitled to an offset consistent with Arkansas law. \nThe final issue involves whether Claimant is entitled to Temporary Total Disability \nbenefits.  Temporary  Total  Disability  for  unscheduled  injuries  is  that  period  within  the \nhealing  period  in  which  the  Claimant  suffers  total  incapacity  to  earn  wages. Ark.  State \nHighway and Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). \nThe healing period ends when the underlying condition causing the disability has become \nstable and nothing further in the way of treatment will improve that condition. Mad Butcher, \nInc.  v.  Parker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  Claimant  has  missed  large \namounts  of  work  due to  her  injury.  Thus, I  find  by the preponderance  of  evidence that \nClaimant is entitled to temporary total disability following her March 15, 2022, injury to a \ndate to be determined when she is stable or has reached maximum medical recovery. \nATTORNEY FEES \nOne of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, \n745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat a claim has been controverted, in whole or in part, the commission shall \ndirect that fees for legal services be paid to the attorney for the claimant as \nfollows:  One-half (½) by the employer or carrier in addition to compensation \n\nBEARFIELD H205069 & H304225 \n \n10 \n \nawarded;  and  one-half  (½)  by  the  injured  employee  or  dependents  of  a \ndeceased employee out of compensation payable to them. \n \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have \ncontroverted Claimant’s entitlement to additional indemnity benefits.  Thus, the evidence \npreponderates that her counsel, the Hon. Steven McNeely, is entitled to the fee as set out \nabove. \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above. All accrued sums, minus any lawful \noffsets, shall be paid in a lump sum without discount, and this award shall earn interest \nat  the  legal  rate  until  paid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2002).   See \nCouch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","textLength":18597,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H205069 & H304225 ERICA BEARFIELD, EMPLOYEE CLAIMANT ROCK REGION METRO, EMPLOYER RESPONDENT ATA WC TRUST, CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 11, 2023 Hearing before Administrative Law Judge Steven Porch on September 28, 2023, in Little Rock, Arkansa...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["shoulder","repetitive"],"fetchedAt":"2026-05-19T23:01:30.464Z"},{"id":"alj-H207895-2023-10-11","awccNumber":"H207895","decisionDate":"2023-10-11","decisionYear":2023,"opinionType":"alj","claimantName":"Carolyn Mosley","employerName":"Best Beverage Of West Memphis LLC","title":"MOSLEY VS. BEST BEVERAGE OF WEST MEMPHIS LLC AWCC# H207895 OCTOBER 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Mosley_Carolyn_H207895_20231011.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Mosley_Carolyn_H207895_20231011.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H207895 \n \n \nCAROLYN JEAN MOSLEY, EMPLOYEE CLAIMANT \n \nBEST BEVERAGE OF WEST MEMPHIS LLC, \n EMPLOYER RESPONDENT \n \nAUTO OWNERS INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 11,  2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  August  11,  2023,  in \nMarion, Crittenden County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr.  Rick  Behring,  Jr.,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On August 11, 2023, the above-captioned claim was heard in Marion, Arkansas.  \nA  prehearing  conference  took place  on  April  10,  2023.    The Prehearing  Order  entered \nthat  day  pursuant  to  the  conference  was  admitted  without  objection  as  Commission \nExhibit 1.  At  the  hearing,  the  parties  confirmed  that  the  stipulations,  issues,  and \nrespective contentions, as amended, were properly set forth in the order. \nStipulations \n At the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  Following amendment at the hearing, they are the following, which I accept: \n 1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nMOSLEY – H207895 \n \n2 \n2. The employee/employer/carrier relationship existed on the alleged date of \ninjury, October 25, 2022, and at all other relevant times. \n3.  Respondents have controverted this claim in its entirety. \n4.  Claimant’s average weekly wage of $540.00\n1\n entitles her to compensation \nrates of $360.00/$270.00. \nIssues \n At the hearing, the parties discussed the issues set forth in “Commission Exhibit \n1.”  The following were litigated: \n1. Whether Claimant sustained a compensable injury to her left foot and left \nsmall toe by specific incident. \n2. Whether  Claimant  sustained a  compensable  consequence  in  the  form  of \ncellulitis. \n3. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n4. Whether Claimant is entitled to temporary total disability benefits. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n \n \n1\nIt  bears  noting  that  this  stipulation  was  reached  by  the  parties  at  the  outset of \nthe hearing after Claimant rejected the offer of Respondents’ counsel to stipulate to an \naverage weekly wage of $580.00.  Even after it was explained to her that it would be to \nher benefit to agree to the higher amount, she declined, stating that she (having already \nbeen sworn) was “supposed to tell the truth under oath . . . .” \n\nMOSLEY – H207895 \n \n3 \n Claimant: \n1. Claimant  contends that  she  suffered  compensable  injuries  to  her  left  foot \nand small toe and that she is entitled to benefits therefor. \n Respondents: \n1.  This claim has been denied and controverted in its entirety. \n2. Claimant did not sustain a compensable left foot/small left toe injury while \nemployed by Respondent employer on or about October 25, 2021 [sic]\n2\n. \n3. Claimant  cannot  meet  her  burden  of  proving  her  left  foot/small  left  toe \ncondition  resulted  from  a  specific  incident  on  or  about  October  25,  2021 \n[sic]. \n4. Claimant  failed  to  timely  report  the  alleged  incident  on  October  25,  2021 \n[sic]. \n5. Claimant is not entitled to any benefits, as her need for medical treatment, \nif any, is unrelated to her employment for Respondent employer.  Instead, \nher physical problems and need for treatment, if any, are related to a pre-\nexisting  and/or  degenerative  condition  and  not  the  result  of  her  work  for \nRespondent employer. \n6. In  the  alternative,  if  it  is  determined  that  the  claimant  sustained  a \ncompensable injury to her left foot and/or left small toe as the result of the \nincident  on  October  25,  2021  [sic],  the  respondents  contend  that  she \n \n \n2\nAs reflected in Stipulation No. 2, supra, the alleged date of injury is on or about \nOctober 25, 2022. \n\nMOSLEY – H207895 \n \n4 \nmerely sustained a temporary aggravation of her pre-existing condition for \nwhich she previously resumed her baseline condition. \n7. In  the  alternative,  if  it  is  determined  that   the  claimant  sustained  a \ncompensable injury and is entitled to any benefits, the respondents hereby \nrequest  a  setoff  for  all  benefits  paid  by  her  group  health  carrier,  and  all \nshort  and  long-term  disability  and/or  unemployment  benefits  received  by \nher. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  the witnesses  and  to  observe  their  demeanor,  I hereby  make  the \nfollowing  findings  of  fact and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that she \nsustained a compensable injury to her left foot by specific incident. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury to her left small toe by specific incident. \n5. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that she \nsustained a compensable consequence in the form of cellulitis. \n\nMOSLEY – H207895 \n \n5 \n6. Because of Findings of Fact/Conclusions of Law 3-5, supra, the remaining \nissues  in  this  matter—whether  Claimant  is  entitled  to  reasonable  and \nnecessary medical treatment of her alleged injuries and to temporary total \ndisability benefits—are moot and will not be addressed. \nADJUDICATION \nSummary of Evidence \n The witnesses\n3\n at the hearing were Claimant and Kendall Brawner. \n Along  with  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence were Claimant’s Exhibit 1, a compilation of her medical records, consisting of \n68 numbered pages; Respondents’ Exhibit 1, another compilation of Claimant’s medical \nrecords,  consisting  of one  index  page  and  nine  numbered  pages  thereafter;  and \nRespondents’  Exhibit  2,  non-medical  records,  consisting  of  one  index  page  and  five \nnumbered pages thereafter. \nA. Compensability \n Introduction.  Claimant has alleged that she suffered compensable injuries to her \nleft  foot  and  small  toe  as  a  result  of  a  specific  incident  while  working  for  Respondent \nBest Beverage of West Memphis LLC (“Best Beverage”) on or about October 25, 2022.  \nRespondents dispute that she suffered a compensable injury of any type. \n \n \n3\nClaimant also sought to call Patricia Johnson as a witness.  Because Claimant \ndid  not  disclose  Johnson  as  a  potential  witness  to  Respondents  at  least  seven  days \nbefore  the  hearing,  per  the  Prehearing  Order,  I  sustained  their  objection  to  her \ntestifying.  However, I allowed Claimant to proffer said testimony. \n\nMOSLEY – H207895 \n \n6 \n Evidence.  Claimant is 59 years old and has obtained her graduate  equivalency \ndegree.    When  asked  when  she  began  working  for Best  Beverage,  she  responded:  \n“[m]aybe  in  March  .  .  .  [o]f  2022,  sir.”  The  company  distributes  alcoholic  beverages.  \nHer  job  throughout  her  tenure  there  was  in  what  she  termed “rework.”  She  described \nher duties as follows:  “Rework is to repair damaged products that came in . . . I would \nget  the  products  and  clean  them,  the  ones  that’s  not  damaged,  and  put  them  on  the \nshelf where we pack stuff.” \n Asked how she injured her toe and foot, Claimant related: \nIt  was  a  damaged  case  of 25-ounce,  you  know,  the  tall  cans  of  beer,  sir, \nand  it  had  been  damaged,  and  the—the  liquid  on  the  containers  of  the \nproducts  soaked  to  the  bottom  of  the  cardboard  box.    And  I  picked  it up \nproperly, and the rest of the cans that was filled broke through the bottom \nand  fell through  the bottom of  the damaged,  corroded  box,  you know, up \nunder—it  couldn’t  hold  the  weight  of  it  when  it—as  long  as  it  was  on  the \nfloor it was fine, but when I picked it up, the remains of the product broke \nthrough. \n \nAccording to Claimant, more than one full aluminum can struck her foot.  At the time this \noccurred, she was wearing sneakers. \n Claimant  stated  that  October  25,  2022,  was  not  the  date  when  this  happened.  \nInstead,  that  was  the  date  (as  corroborated  by  the  medical  records  in  evidence—see \nsupra)  that  her  supervisor,  Kendall  Brawner,  took  her  to  the  emergency  room.  It  was \nher testimony that he witnessed the incident in question.  He asked her if she was okay, \nand  she told him, yes, “because it really wasn’t nothing at that point.”  In any case, he \ndid not write an injury report about it.  Had he done so, according to her, the exact date \n\nMOSLEY – H207895 \n \n7 \nand  time  of  her  injury  could  be  known.  Claimant  has  no  recollection  concerning  what \ntime of day the cans struck her foot.  The following exchange took place: \nQ. And all I’m simply asking you, and again, I’m not asking you if you \nlooked at your watch right then and know the exact time, but do you \nremember  even  the  time  of  day?    Had  you  just  started  [at]  work?  \nWas it almost the end of the day? \n \nA. I  would  say  the  midway  of  the  day,  sir.    Maybe  after  lunch  or \nsomething like that. \n \nQ. Do you know that for a fact, or are you just guessing? \n \nA. No,  sir,  I  don’t  know  it  for  a  fact,  but  I  know  it  happened  that  day, \nyou know.  Just I know it—what happened, sir. \n \nQ. But you’re testifying— \n \nA. But it’s been a long time. \n \nQ. Well, you just now said you think it was midday.  Do you know at all \nor are you just guessing? \n \nA. Well, you put me in a situation.  I can’t remember this, sir. \n \nQ. Okay.  All right. \n \nA. And I’m being honest. \n \n She was not much better in narrowing down the date, first stating that “[i]t had to \nbe a few days or weeks before” the emergency room visit.  When asked by me whether, \nfor  example,  it  occurred  five  days  or  perhaps  three  weeks  prior  to  her  first medical \ntreatment, she initially seized on this and responded:  “I would say in between—I would \nsay five days.  Five days or maybe less.”  But then she acknowledged:  “I don’t know.”  \nReturning  to  the matter,  she  testified that  it would have  been  three  to  five  days  before \nthe trip to the October 25, 2022, trip to the emergency room.  When I informed her that I \n\nMOSLEY – H207895 \n \n8 \ncould  take  judicial  notice\n4\n  that  October  25,  2022,  fell  on  Tuesday,  and  asked  her  if, \nbased  on  her  timeline,  her  foot  and  toe  were  hurt  between  Wednesday,  October  19, \n2022, and Friday, October 21, 2022, she believed that was correct. \n Returning to the incident  at issue, Claimant testified that when she removed her \nleft shoe right after it occurred, all she saw was “a little bitty puncture . . . just like a little \nbruise” on her left small toe.  She related that following this examination, she resumed \nher duties.  Claimant worked the following day as well.  It was her admission that Best \nBeverage  has  a  policy  that  all  injuries,  no  matter  how  small,  should  be  reported \nimmediately. \n Questioned  concerning  what  happened  next,  she  stated  that “probably  a  few \ndays after this,” her toe “started tingling, you know, and kind of throbbing like, sir, like it \nwas—like it was on fire or something, you know, heat, and the worser [sic] I worked on \nit, the worser it got—to the point that I couldn’t work anymore.”  It was at this point that \nshe sought treatment.  Later, she elaborated that  the onset of her symptoms were two \nto three days before the emergency room visit.  The day of the visit, per Claimant, she \nperformed  her  regular  duties  at  work  until “it  started  really,  really,  to  the  point  that  I \ncouldn’t take it no more and I went to [Brawner].”  He did online research concerning her \nfoot  condition  and  thereafter  transported  her  to  the  emergency  room.  Claimant’s \ntestimony  was  that  her  medical  records  in  evidence  would  reflect  the  treatment  she \nreceived.    After  being  seen  in  the  emergency  room,  Claimant  was  referred  to  a \nphysician in Memphis.  He prescribed antibiotics. \n \n \n4\nSee Buxton v. City of Nashville, 132 Ark. 511, 201 S.W. 512 (1918). \n\nMOSLEY – H207895 \n \n9 \n The following exchange took place on cross-examination: \nQ. It [the emergency room record] says that you had toe pain for over \ntwo weeks.  Do you understand that, that that’s what your medical \nrecords said? \n \nA. Okay. \n \n. . . \n \nQ. And in that report it says that you denied hitting your foot or hitting \nyour toe to cause any pain? \n \nA. I  do  deny  it,  because I  didn’t hit  my feet.    It was  something  fell  on \nmy feet, sir. \n \n. . . \n \nQ. Ms. Mosley, I’m going to show you page 37 of your exhibit, which is \nfrom Baptist Hospital on October 25\nth\n of 2022. \n \nA. Yes, sir. \n \nQ. All right.  Do you see this? \n \nA. Uh-huh. \n \nQ. Yeah.  Is this your handwriting? \n \nA. Yes, sir, it is. \n \nQ. It is.  Okay.  I thought so.  There is a question on here and it says, \n“Did  you  injure  yourself  at  work?”  And  it’s  checkmarked, “No.”  \nThat’s your checkmark, correct? \n \nA. Okay.  But see— \n \nQ. Is that your checkmark, Ms. Mosley? \n \nA. That’s my checkmark. \n \n. . . \n \n\nMOSLEY – H207895 \n \n10 \nQ. You  went  to  the  hospital  the  following  day  at  St.  Francis,  is  that \ncorrect? \n \nA. Yes, sir. \n \nQ. All right.  And then in that St. Francis report as well, that’s page 1 of \nthe  Respondents’  No.  1  exhibit,  it  says  that,  again, “Patient  states \npain  had  been  occurring  for  approximately  two  weeks.”  Do  you \nunderstand that’s what your medical records report says? \n \nA. Yes, sir. \n \nQ. Okay.    And  then  on  page  4  of  my  exhibit  it  says, “Was  the  visit a \nresult  of  an  injury?”  And  it  indicates “No.”  That’s  page  4  of  my \nexhibit.  Do you understand that that’s the next day? \n \nA. Uh-huh. \n \nQ. Okay.    You  understand  that,  Ms.  Mosley,  that  there’s  no  medical \nrecord today that Judge Fine and the Commission are going to look \nat that shows any indication that you had any sort of injury at work.  \nYou understand that? \n \nA. That don’t mean it don’t happen, sir.  It happened. \n \nQ. Do  you  understand  that  there’s  no—there  is  nothing  in  any  of  the \nreports that says you got hurt at work.  You understand that? \n \nA. Yeah, I understand, but I don’t believe that. \n \n Asked about references in the medical records to her having a bunion on the toe \nin  question,  Claimant  admitted  that  she  had  this  condition  before  the  cans  fell  on  her \nfoot.    But  she  hastened  to  add:   “the  incident  caused  it  to  be  infected.    I  never  had  a \nproblem  with  this,  even  if  I  did  have  a  bunion  or  a  corn,  I  never  needed  [to]  go  to  the \nhospital.  It never got infected.  I swear, sir.”  She maintained that the cellulitis that she \ndeveloped was the result of the falling cans. \n\nMOSLEY – H207895 \n \n11 \n Claimant initially denied having another pre-existing condition in her left small toe \nin the form of nail fungus.  But shown that diagnosis in the records, she conceded this to \nbe the case.  She agreed that she underwent treatment on three dates, October 25 and \n26, 2022; and November  3, 2022.  Asked whether she had worn any footwear to work \nother than a sneaker following the alleged incident, Claimant answered in the negative, \nand specifically denied ever wearing a houseshoe. \n Called by Respondents, Brawner testified that he is the Operations Manager for \nRespondent  Best  Beverage.    At  the  time  of  the  alleged  incident,  he  was  Warehouse \nManager.    In  that  latter  capacity,  he  was  Claimant’s  supervisor.    He  stated  that \nClaimant’s start date with the company was actually August 1, 2022, approximately five \nmonths later than that represented in her testimony.  Also in contrast to her testimony, \nshe did not begin there in the rework area.  Per Brawner, she was hired to be an order-\npuller in the warehouse. \n The following exchange took place: \nQ. Now,  Ms.  Mosley  testified  that  somewhere  between  October  19\nth\n \nand  October 21\nst\n  she  had  an  incident  in  which  she  dropped  some \ncans on her foot, do you recall that testimony? \n \nA. Yes, sir. \n \nQ. You were here when she testified? \n \nA. Yes, sir. \n \nQ. Did you see this happen? \n \nA. No, sir. \n \nQ. Did you speak with her after it happened? \n\nMOSLEY – H207895 \n \n12 \n \nA. No, sir. \n \nQ. She  had  indicated  that  you  had  some  something  like, “Are  you \nokay?”  Did that ever happen? \n \nA. No, sir. \n \nQ. All  right.    Were  you  aware  of  any  sort  of  work  incident  happening \nbetween October 17\nth\n and October 19\nth\n, during that period of time? \n \nA. No, sir, not exactly, no. \n \nBrawner  confirmed  that  company  policy  is  that  all  injuries  on  the  job,  no  matter  how \ninsignificant,  must  be  reported  as  soon  as  possible.  Shown  page  3  of  Respondents’ \nExhibit 2, he confirmed that this is the policy, and that it had been provided to Claimant. \n It was Brawner’s testimony that he first became aware that something was wrong \nwith Claimant’s foot when he noticed that she had it wrapped in a grocery sack and was \nwearing a houseshoe on it.  He inquired about it, since this was a violation of company \npolicy,  and  was  informed  that  her  foot  was  bothering  her.    Approximately  one  week \nlater, he took her to the emergency room at Baptist Hospital in Memphis. \n Based  upon  his  above  answer  of “not  exactly,”  the  following  lengthy  exchange \ntook place under examination by the Commission: \nQ. What  were  you  aware  of  with  regard  to  this  lady’s  foot  during  the \nperiod of October 17 through 19\nth\n of last year? \n \nA. So  that  is  actually  when  we  found  her  in  the  warehouse  with  the \nthing wrapped around her foot.  That’s when she had told me that a \nweek or two prior to that she had dropped something on her foot. \n \nQ. Okay. \n \n\nMOSLEY – H207895 \n \n13 \nA. And then after a week of—after, you know, we told her about that, \nshe said that it was hurting.  She then worked the rest of the week, \nthat  Monday,  and  then  on  that  Tuesday  she  came  in  with  her \nhouseshoe on again and that’s when I took her to the hospital. \n \n. . . \n \nQ. So around October 17\nth\n through 19\nth\n— \n \nA. That was Wednesday. \n \nQ. —she  would  have  come  in  wearing  a  bag  on  her  foot  and  a \nhouseshoe. \n \nA. Yes, sir. \n \nQ. and that’s when she said she had dropped something on her foot in \nthe warehouse? \n \nA. Yes, sir, a couple weeks prior to that. \n \nQ. Well, you said several, but I thought you said earlier two weeks? \n \nA. One or two yes, sir, something like that. \n \nQ. Okay.  Now, you’ve testified, if I’m understanding you correctly now, \nthat  this—would  this  conversation  have  happened  somewhere \nbetween October 17\nth\n and 19\nth\n of last year? \n \nA. Yes, sir. \n \nQ. Okay.    Now,  did  I  understand  in  her  testimony,  which  you  were \npresent  for,  and  I  think  you’ve  confirmed  this  today,  that  you  took \nMs. Mosley to the ER on October 25\nth\n? \n \nA. Yes, sir. \n \nQ. Which would have been the following week? \n \nA. Yes, sir. \n \nQ. Okay.    What,  if  anything,  happened  between  the  time  you  were \naware  that  she  had  a  problem  with  her  foot  back  sometime \n\nMOSLEY – H207895 \n \n14 \nbetween the  17\nth\n  and  19\nth\n,  when  she—you  testified  she  was \nwearing a bag on her foot inside a houseshoe?  Between that time \nand the time you took her to the ER, what changed that led you to \ntake her to the ER? \n \nA. The  fact that  I  looked  on  the  internet  about  how  long  a  bruise \nshould be.  Like I just looked up how long a bruise typically sticks, \nand is it any time that a bruise sticks around longer than two weeks, \nthat  there  could  be  a  serious  underlying  situation.    And  I  told  her \nthat I felt like something might, you know, be wrong with your foot. \n \nQ. Okay.  Was it at your suggestion that y’all went to the ER or at her \nrequest? \n \nA. My suggestion. \n \nQ. All  right.    And  did  you  feel  like—were  you  aware  at  that  time  that \nshe, and I think you’ve said this but I want to understand this, were \nyou  aware  that  whatever  this  bruise  was,  that  it  was  due  to \nsomething that she had dropped on her foot at the warehouse? \n \nA. That’s what she had claimed it was. \n \nQ. All right.  Did you all fill out workers’ comp paperwork? \n \nA. No, sir. \n \nQ. Why not? \n \nA. Because  she  said  it  was  two  weeks  before  whenever  I  had  found \nher  in  the  wrapped-up  foot  with  the  grocery  bag.  She  said  it  was \ntwo weeks before— \n \nQ. Okay. \n \nA. —that something had happened to her. \n \nQ. Did she tell you what happened to her foot? \n \nA. She said she had dropped her case, yes, sir. \n \nQ. Okay.    Why  did  that  not  trigger  you  filling  out  workers’  com- \npensation paperwork? \n\nMOSLEY – H207895 \n \n15 \n \nA. I’m not sure. \n \nQ. Because she gave you— \n \nA. I  guess  because  there  wasn’t  a  specific  time  and  she  didn’t  do  it \ninstantly. \n \nQ. So it was based upon the fact that she couldn’t—she had told you \nthat  she’d  done  something  at  work  that  injured  her  foot.    Did  you \nverify—did you ever look at her foot? \n \nA. Not until the day I took her to the hospital. \n \nQ. Okay.  What did you see when you looked at the foot? \n \nA. It was just bruised. \n \nQ. Okay.  Where was the bruise located? \n \nA. It was all in her very small toe. \n \nQ. On which foot? \n \nA. Left foot. \n \nQ. Left foot, okay.  So based upon that, based upon you were able to \nobserve  an  injury  on  her  foot,  based  upon  her  relating  to  you  that \nthere  actually  was  an  incident  at  work  that  caused  it,  and  she \nrelated  to  you  that  it  happened,  what,  two  weeks  before,  that  did \nnot lead you to fill out an incident report? \n \nA. No, sir. \n \nQ. And  your  testimony,  if  I  understood  it,  you  don’t  know  why  you \ndidn’t  do  it,  based  upon  being  given  that  knowledge?    Is  that  your \ntestimony? \n \nA. I guess because it was—she didn’t report it instantly, and so I took \nit upon myself just to watch after her. \n \n\nMOSLEY – H207895 \n \n16 \nQ. But you never filled out an incident report? \n \nA. No, sir. \n \n In  follow-up  questioning  by  Respondents,  Brawner  stated  that  Claimant  did  not \ninform him the time of the can-dropping incident happened or other details, such as the \nsize of the cans.  He confirmed that he has no medical training that would enable him to \ndifferentiate  a  bruise  from  another  condition.   All  he  could  state  was  that  her  left  small \ntoe was darker than her surrounding pigmentation.  But it was not swollen. \n The medical  records  in  evidence  show  that  Claimant  on  October  25,  2022, \npresented  to  the  emergency  department  of  Baptist  Memorial  Hospital  West  Memphis \nwith pain in her left small toe that she described as “swollen and becoming black.”  The \npain  had  been  present  for  two  weeks.    The  history  portion  of  the  report  also  contains \nthis notation:  “Pt denies hitting it or hurting her toe to cause pain, but is also unsure and \ndoesn’t  remember  if  she  ever  hit  her  toe.”  She  also  related  that  she  was  having \n“warmth . . . coming from her toe and spreading to the dorsal left foot.”  Examination of \nthe left foot showed “[d]ecreased capillary refill . . . [s]welling and tenderness present.”  \nThe  examination  notes  also  read:   “There  is  TTP  to  left  pinky  toe.    Left  pinky  toe  is \nswollen  and  it  is  dark in  color,  cap  refil[l]  [greater  than] 3.   No  cuts,  lesions  or  sores \nnoted.”  (Emphasis  added)    Dr.  Antonio  Martinez  wrote  that  per  her  x-ray,  Claimant \n“probably  has  osteomyletis.”  She  was  prescribed  antibiotics  and  referred  for  vascular \nsurgery.  However, she refused to be transported by ambulance and was discharged to \ntransport herself. \n\nMOSLEY – H207895 \n \n17 \n The  next  day,  October  26,  2022,  Claimant  went  to  Saint  Francis  Hospital  in \nMemphis.  Per the report of the visit, she told treating personnel that her left small toe \nhad been hurting for approximately two weeks.  An x-ray of the left foot showed “[s]oft \ntissue  swelling,  lateral  foot,  can  be  seen  with  soft  tissue  trauma,  cellulitis.”  She  was \ndiagnosed by Dr. Dewight Cowley as having “cellulitis of toe of left foot” and prescribed, \ninter alia, antibiotics. \n Claimant  returned  to Baptist  Hospital  on  November  3, 2022,  to  get  clearance  to \nreturn to work.  The record states in pertinent part: \n[Claimant]  states  that  the  toe  is  looking  a  lot  better  and  all  of  her \npain  is  gone.    She  states  her  color  is  coming  back  to  the  toe.  \nApparently  the  patient  had  a  bunion  on  the  top  of  the  5\nth\n  digit  that \nturned into cellulitis.  The toenail is discolored and very thick, there \nis obvious fungus in the nail bed . . . There is no cellulitis noted in \nthe foot the patient is taking clindamycin as prescribed [and] the toe \nhas no swelling or edema or drainage noted. \n \n Discussion.    In  order  to  prove  the  occurrence  of  an  injury  caused  by  a specific \nincident or incidents identifiable by time and place of occurrence, a claimant must show \nthat:  (1) an injury occurred that arose out of and in the course of her employment; (2) \nthe injury caused internal or external harm to the body that required medical services or \nresulted  in  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence \nsupported  by  objective  findings,  which  are  those  findings  that  cannot  come  under  the \nvoluntary control of the patient; and (4) the injury was caused by a specific incident and \nis identifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, \n56  Ark.  App.  126,  938  S.W.2d  876  (1997).    If  a  claimant  fails  to  establish by  a \npreponderance  of  the  evidence  any  of  the  above  elements,  compensation  must  be \n\nMOSLEY – H207895 \n \n18 \ndenied.  Id.  The standard “preponderance of the evidence” means the evidence having \ngreater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415 \n(citing Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947)). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., \n72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.  Id.  Based on my observation of Claimant, I find her to be a sincere person.  This \nis  perhaps  best  illustrated  by  her  refusal  to  stipulate  to  a  higher  average  weekly  wage \nthan she believed she earned.  See supra Note 1.  But a conscious effort at veracity is \nonly part of a witness’s credibility.  Another component is the ability to recall times and \ndetails with accuracy. \n It is on this point that Claimant falls short.  With respect to the time of the alleged \ninjury, she was wholly unable to narrow down what time of day the box of cans fell and \nstruck her foot.  As for the date, her testimony was wildly inconsistent.  Eventually, she \nsettled  on  an  estimate  that  three  to  five  days  elapsed  between  the  purported  accident \nand  her  visit  to  the  emergency  room.    But  her  medical  records  show  that  she \nrepresented that the pain in her toe that began two weeks prior. \n Her  testimony  is  questionable  in  other  respects.    In  describing  the  wound  she \npurportedly suffered when the cans landed on her foot, she stated that she sustained “a \n\nMOSLEY – H207895 \n \n19 \nlittle  bitty  puncture  .  .  .  .”  However,  the  Baptist  Memorial  Hospital  report  discussed \nabove disputes this:  “No cuts, lesions or sores noted.” \n Even more problematic is the discrepancy between the testimony she gave at the \nhearing  and  what  she apparently  told  emergency  room  personnel.    While  she  related \nfrom  the  witness  stand  that  she  had  picked  up  a  damaged  box  containing  25-ounce \ncans  of  beer  and  the  soaked  box  broke,  causing  multiple  cans  to  hit  her  foot,  she \ninformed Baptist Memorial Hospital:  “Pt denies hitting it or hurting her toe to cause pain, \nbut is also unsure and doesn’t remember if she ever hit her toe.”  Attempting to explain \nthis at the hearing, Claimant testified that she made this statement to medical personnel \nbecause the cans hit her foot; she did not hit them.  Frankly, this is a distinction without \na difference.  What matters is that at a point much, much closer to the alleged incident \nat Best Beverage, Claimant denied knowing the cause of the condition of her left small \ntoe.  This  inconsistency  arises  again  in  the  questionnaire  she  filled  out  at  Baptist \nMemorial Hospital.  There, she answered “no” when asked:  “Did you injure yourself at \nwork?” \n Unquestionably, Claimant has objective findings.  As documented in her records, \nshe had,  inter  alia,  swelling  in  her  foot  and  toe.    Furthermore,  she  required  medical \nservices to treat these body parts.  But because of the discrepancies recounted above, I \nam  unable  to  find  that  Claimant  is  a  credible  witness.    The  preponderance  of  the \nevidence  does  not  show  that  her  left  toe  and  foot  conditions  arose  out of  and  in  the \ncourse of her employment in Best Beverage; nor does it show that they were caused by \n\nMOSLEY – H207895 \n \n20 \na  specific  incident  identifiable  by  time  and  place  of  occurrence.  In  sum,  Claimant  has \nnot met her burden of proof that she suffered a compensable injury. \n In  making  this  finding, I  wish  to  reiterate  that  Claimant  by  all appearances  is  a \nsincere individual.  But any belief, no matter how sincere, is not a substitute for credible \nevidence.  Graham  v. Jenkins Engineering, 2004  AR  Wrk.  Comp. LEXIS  79,  Claim  No. \nF112391 (Full Commission Opinion filed March 12, 2004). \nB. Compensable Consequence \n Introduction.    Claimant  has  also  alleged  that  she  sustained  a  compensable \nconsequence  in  the  form  of  cellulitis.    Respondents  have  denied  responsibility  for  this \ncondition. \n Discussion.  If an injury is compensable, every natural consequence of that injury \nis  likewise  compensable.   Air  Compressor  Equip.  Co.  v.  Sword,  69  Ark.  App.  162,  11 \nS.W.3d 1  (2000); Hubley  v.  Best  West.  Governor’s  Inn,  52  Ark. App. 226,  916  S.W.2d \n143  (1996).    The  test  is  whether  a  causal  connection  between  the  two  (2)  episodes \nexists.  Sword, supra; Jeter v. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998).  \nThe existence of a causal connection is a question of fact for the Commission.  Koster \nv. Custom Pak & Trissel, 2009 Ark. App. 780, 2009 Ark. App. LEXIS 947.  It is generally \na  matter  of  inference,  and  possibilities  may  play  a  proper  and  important  role  in \nestablishing  that  relationship.  Osmose  Wood  Preserving  v.  Jones,  40  Ark.  App.  190, \n843  S.W.2d  875  (1992).    A  finding  of  causation  need  not  be  expressed  in  terms  of  a \nreasonable   medical   certainty   where   supplemental evidence   supports   the   causal \n\nMOSLEY – H207895 \n \n21 \nconnection.  Koster, supra; Heptinstall v.  Asplundh Tree Expert Co., 84 Ark. App. 215, \n137 S.W.3d 421 (2003). \n Claimant  has  not  shown  that  she  sustained  a  compensable  injury  either  to her \nleft  foot  or  to  her  left  small  toe.    Hence,  she  cannot  prove  that  her  cellulitis—which  is \ndocumented  in  her  medical  records  in  evidence—is  a  compensable  consequence \nthereof. \nC. Remaining Issues \n As  part  of  her  claim  for  initial  benefits,  Claimant  has  also  alleged  that  she is \nentitled  to  treatment  of  her  alleged  injuries,  and  to  temporary  total  disability  benefits.  \nBut because she has not met her burden of proving that she sustained a compensable \ninjury, these issues are moot and will not be addressed. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Honorable O. Milton Fine II \n       Chief Administrative Law Judge","textLength":33271,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H207895 CAROLYN JEAN MOSLEY, EMPLOYEE CLAIMANT BEST BEVERAGE OF WEST MEMPHIS LLC, EMPLOYER RESPONDENT AUTO OWNERS INS. CO., CARRIER RESPONDENT OPINION FILED OCTOBER 11, 2023 Hearing before Administrative Law Judge O. Milton Fine II on August 11, 2023, in Mari...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:01:32.656Z"},{"id":"alj-H109611-2023-10-10","awccNumber":"H109611","decisionDate":"2023-10-10","decisionYear":2023,"opinionType":"alj","claimantName":"Steven Dawson","employerName":"National Lift Truck","title":"DAWSON VS. NATIONAL LIFT TRUCK AWCC# H109611 OCTOBER 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DAWSON_STEVEN_H109611_20231010.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAWSON_STEVEN_H109611_20231010.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H109611 \n \nSTEVEN DAWSON, Employee CLAIMANT \n \nNATIONAL LIFT TRUCK, Employer RESPONDENT \n \nLIBERTY MUTUAL GROUP, Carrier RESPONDENT \n \n \n \n OPINION FILED OCTOBER 10, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  July  13,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on April 24, 2023, and a Pre-hearing Order \nwas filed on April 25, 2023.   A copy of the Pre-hearing Order has been  marked Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2.   The   relationship   of   employee-employer-carrier   existed   between   the   parties   on \nDecember 3, 2021. \n 3. The respondents have controverted the claim in its entirety. \n\nDawson – H109611 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $667.00 for temporary total disability benefits and $500.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a  compensable injury to his left upper  extremity and left \nshoulder on or about December 3, 2021. \n 2. Whether Claimant is entitled to medical treatment for his left upper extremity and left \nshoulder injury. \n 3.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  December  4, \n2021, to a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n Claimant’s contentions are: \n“1. The above listed proposed stipulations. \n \n2. The Claimant was injured on December 3, 2021, when he was at \na  place  of  business,  Whitt  Truck  Repair,  to  deliver  materials  on \nbehalf  of  Separate  Respondent,  National  Lift  Truck,  where  an \naltercation ensued between the Claimant and D. Joshua Whitt, son \nof the business owner,  wherein the Claimant received an injury to \nhis left upper extremity and shoulder. \n \nThe  Claimant  was  treated  the  same  day  at  Mercy  Hospital  Fort \nSmith wherein he complained of left shoulder and facial pain. The \nClaimant  was  treated  with  a  left  shoulder  dislocation  which  was \nsuccessfully reduced into place in the emergency room and he was \nreferred to an orthopedic surgeon for additional follow-up. \n \nOn  December  13,  2021,  the  Claimant  followed  up  with  Patrick \nWalton,   PA,   at   Mercy   Clinic   Orthopedics   for   continued   left \nshoulder pain. Dr. Walton referred the Claimant for an MRI of his \nleft  shoulder  and  was  instructed  to  return  upon  completion  of \nsame. \n \n\nDawson – H109611 \n \n-3- \nOn   January   11,   2022,   after   the   Claimant’s   MRI   had   been \nperformed,  he  followed  up  with  Dr.  Walton  wherein  the  results \nwere discussed and a rotator cuff repair surgery was scheduled. \n \nOn  February  7,  2022,  the  Claimant  underwent  a  left  shoulder \nscoped with  rotator  cuff  repair, subacromial decompression at AC \njoint  repair  performed  by  Dr.  Steven  Smith  at  Mercy  Orthopedic \nHospital. \n \nOn February 9, 2022, the Claimant started physical therapy for his \nleft shoulder at Mercy Therapy Services. \n \nThe  Claimant  continued  to  follow-up  with  Dr.  Walton  and  Mercy \nTherapy Services until he reached MMI. \n \n3.  The  Claimant  reserves  the  right  to  amend  and  supplement  his \ncontentions after additional discovery has been completed.” \n \n Respondents’ contentions are: \n \n“The claimant was not performing employment services at the time \nof   the   injury.   The   claimant   was   an   active   participant   in   an \naltercation.” \n \n The  claimant  in  this  matter  is a  62-year-old  male  who  has  alleged  to  have  sustained \ncompensable  injuries  to  his  left  shoulder  and  upper  left  extremity  on  December  3,  2021.  The \nclaimant  was  employed  by  the  respondent  on  December  3,  2021,  but  was  not  engaged  in  his \nnormal  job  duties  that  particular  day.  The  respondent-employer  is  in  the  business  of “trucking” \nor  moving  large  equipment  and  renting  out  forklifts.  The  claimant  normally  worked  for  the \nrespondent-employer hauling equipment with a semi-truck and trailer. However, on December 3, \n2021,  the  claimant  was  unable  to  perform  his  normal  job  duties  because  the  semi-truck  he \noperated  was  being  repaired.  The  claimant  testified  that  at  times  previously  when  the  truck  he \noperated was unavailable to him, he would make sales calls  for the respondent-employer in the \nFort  Smith  area.  On  December  3,  2021,  the  claimant  was  performing  those  sales  call  duties  for \n\nDawson – H109611 \n \n-4- \nthe respondent-employer. The claimant gave direct examination testimony about his day making \nsales calls on December 3, 2021, as follows: \nQ Okay. And what was wrong with it? Do you recall? \n \nA The  air  conditioner  was  broken  and  there  was  just –  no \nmajor issues other than the air conditioner. \n \nQ Do you remember about when the truck went down? \n \nA It  would  probably  be –  I  think  I  went  about  five  days \nwithout an air conditioner. \n \nQ Okay.  So  it  was  at  the  Peterbilt  dealership  being  repaired \non the day that this incident occurred? \n \nA Yes, sir. \n \nQ Okay.  Were  you,  in  fact,  doing  that  portion  of  your  job \nwhich  called  for  you  to  cold  call  businesses  and  try  to  drum  up \nbusiness? \n \nA Yes, sir. \n \nQ Okay. Do you remember where you had been that day prior \nto the location upon which you were injured? \n \nA I had a blue legal pad that every place I stopped I would get \na business card as I was instructed and then I would staple it to the \nlegal  pad  and  write  a  little  note  of  what  I  talked  about.  And  I \nstarted  up  in  Greenwood  and  made  a  loop  down  71  Highway  and \nthen  down  by  the  river  down  Wheeler  is  where  I  went  and  just \nmaking –  I  was  instructed  to  make  ten  calls  a  day.  Then  I  would \ntake my iPhone and take pictures of it, photos for the file deal, and \nI would email them to the Little Rock office as instructed. \n \nQ Who was your supervisor, if you had one? \n \nA Mike Vickers. \n \nQ Is that who you reported to? \n \nA Yes. \n \n\nDawson – H109611 \n \n-5- \nQ Okay. Was that your sole authority was Mike Vickers? \n \nA Yes. \n \nQ Was that the only person you ever dealt with? \n \nA Yes. \n \nQ Okay. Where was Mike located? \n \nA Little Rock, Arkansas. \n \nQ The Little Rock office? \n \nA Yes, sir. \n \nQ And  they  actually  had  a  brick-and-mortar  building  down \nthere? \n \nA Yes, sir. They have about five trucks. \n \nQ Okay.   And   was   it   Mike   Vickers   that   gave   you   this \nassignment  to  make  contacts  and  sales  calls  on  the  day  that  the \ntruck was not in operation? \n \nA Yes, sir. \n \nQ Okay. Is he the one that came up with the number ten? \n \nA Yes, sir. \n \nQ Okay.  What  about  the  business  card  and  the  proof,  whose \nidea was that? \n \nA His idea. \n \nQ Okay.  And  do  you  know  why  you  were  required  to  keep \ndetailed logs like that? \n \nA I   think   he   passed   it   onto   a   salesman.   I   was   like   an \nicebreaker and then he actually had a salesman in the area and then \nthey would follow up. \n \nQ Okay. Whose idea was it to bring a business card from each \ncall you made? \n\nDawson – H109611 \n \n-6- \n \nA Mr. Vickers. \n \nQ Okay. And you were instructed to do that? \n \nA Yes, sir. \n \nQ So on December 3\nrd\n, this was not the first day that you had \ngone out and made sales calls? \n \nA No, sir. \n \n During the claimant’s sales calls on December  3, 2021, he decided to stop at a business \nnamed “Whitt  Truck  Repair”  located  on  Wheeler  Street  in  Fort  Smith.  The  claimant  was  asked \non  direct  examination  about  why  he  decided  to  make  a  sales  call  to  Whitt  Truck  Repair  as \nfollows: \nQ Okay.  All  right.  So  what  led  you  to  stop  at  Whitt  Truck \nRepair? \n \nA I had known David and  he had done  work on my personal \ntrucks in the past and he was on my trail and I thought, well, I will \ngo  ahead  and  talk  to  David.  They  use  some  forklifts  because  they \ndo heavy truck repair. \n \nQ Okay. So David Whitt is the owner of Whitt Truck Repair? \n \nA Yes, sir. \n \nQ Okay. And you had a prior business relationship with him? \n \nA Yes, I did. \n \nQ Okay. So do you stop in there? \n \nA I did that day, yes. \n \n The claimant, prior to  and at least through the time of the hearing in this matter, owned \nhis own business by the name of “Town & Country Contractors” in addition to his employment \nwith   the   respondent-employer.   The   claimant   testified   that   he   started   Town   &   Country \n\nDawson – H109611 \n \n-7- \nContractors  roughly  25  years  before  his  employment  with  the  respondent-employer.  That \ncompany  performs  services  including  tree  cutting  and  earth  moving  with  a  bobcat  and  dump \ntruck.  The  company  also  grades  lots  and  can  dig  swimming  pools.  The  claimant  testified  that \nwhile  working  for  the  respondent-employer  he  performed  jobs  through  Town  &  Country \nContractors on the weekends.  \n The claimant described his personal business relationship with David Whitt, the owner of \nWhitt Truck Repair, on direct examination as follows: \nQ Okay.  So  getting  back  to  the  original  point,  your  Town  & \nCountry business is how you knew David Whitt prior to 12/3? \n \nA Yes, sir. \n \nQ Okay. Was it payment or did you all swap services, barter? \n \nA Sometimes  I  would  just  pay  him  if  he  wanted  to  get  paid, \nbut  if  he  needed  tree  work,  I  would  do  tree  work  for  him.  He  had \nmultiple rentals. It was a real casual thing. \n \nQ Okay.  And  how  long  had  that  been  going  on  between  you \nand David Whitt? \n \nA Probably seven years, six or seven years. \n \n On  December  3,  2021,  the  claimant  entered  Whitt  Truck  Repair  to  make  a  sales  call  to \nDavid Whitt, the owner of Whitt Truck Repair. The claimant gave direct examination testimony \nabout the events that followed: \nQ Okay.  So  you  are  in  your  own  truck.  You  stop  by  Whitt \nTruck Repair? \n \nA Yes, sir. \n \nQ Can you take us through what happened next. \n \nA Well, I stopped in to Whitt and I had previously called him \nto see if he could fix the air conditioner on the truck. \n\nDawson – H109611 \n \n-8- \n \nQ The one that was out at Peterbilt? \n \nA Yes, sir. \n \nQ Oh, okay. \n \nA And it was about three weeks before and he recommended I \ntake it to Jody’s, which is down the street, a repair place, because \nhe didn’t have time to mess  with  it  because  he  does  a  lot  of,  I \nguess, big stuff. That was small potatoes to him. \n \nQ Okay. \n \nA So I said okay. \n \nQ So  you  actually  talked  to  him  about  your  actual  truck  that \nwas sitting out at Peterbilt. \n \nA Yes, I did. \n \nQ So do you go in? \n \nA I  go  in.  I  walked  in  and  I  know  where  his  desk  is  and  I \nwalked around the corner and say hi and told him I had a pamphlet \nand  a  business  card  from  National  Lift.  And  I  told  him  that  I  was \nshaking  the  bushes  to  see  if  I  could  interest  him  in  any  forklift \nparts or just trying to break the ice. \n \nQ Okay. \n \nA And do what I was instructed to do, one of my ten calls for \nthe day. \n \nQ All right. And did he recognize you? \n \nA I don’t know if he did or not. I don’t know. \n \nQ Okay. \n \nA I  recognized  him.  I  have  had  multiple  dealings  with  him. \nHe would do mobile truck repair for my trucks and my trucks have \nbeen in his shop many times. \n \n*** \n\nDawson – H109611 \n \n-9- \nQ Okay.  So  you  indicated  that  you  had  gone  in  and  handed \nhim a pamphlet, a business card. By whom were those supplied to \nyou? \n \nA From National Lift of Arkansas. \n \nQ So those came from Little Rock? \n \nA Yes. \n \nQ And business card, was that a business card for you or just \nthe company in general? \n \nA It had the salesman’s name on it that was for the Fort Smith \nsalesman. \n \nQ Okay. \n \nA His name was – I can’t remember. \n \nQ Okay.  So  how  far  into  this  sale  call  did  you  all  talk  about \nthe services that National Lift provides? \n \nA Well,  for  several  minutes  we  did  and  I  was  at  his  desk. \nThen  he  brought  up  that  I  owed  him  some  tree  work  is  what  he \nsaid. I didn’t do a job that I was supposed to do. \n \nQ Okay. Had he likewise exchanged business cards? Did you \nhave one of his business cards? \n \nA Yes. \n \nQ Okay.  And  what  was  your  intent  on  having  that  business \ncard? \n \nA To staple it to the legal pad and be able to take a picture of \nit that night like I was instructed. \n \nQ Okay.   And   that   you   had   done   on   five   or   six   other \noccasions? \n \nA I think that was six or seven for the day. \n \nQ Okay.  That  day,  you  are  saying  that  was  the  sixth  or \nseventh call that day? \n\nDawson – H109611 \n \n-10- \n \nA Yes. \n \nQ But I mean on other occasions prior to December 3\nrd\n? \n \nA Oh, yes. \n \nQ Okay. So you have his card and he has your brochures and \nsales card from National Lift? \n \nA Yes, sir. \n \nQ Tell me what happened then. \n \nA At the point that he said I owed him, I said, “Well, David, \nlook up in the computer and show me what you’ve got,” and it was \nas  friendly  as  it  could  be  and  he  was  right  there,  you  know, \nbecause I couldn’t remember. It wasn’t that big of deal because \nwhat I had on the truck fixed was so minor. If I remember the last \ntime he worked on my truck, it was an adjustment of the valve on a \nboom truck where it couldn’t go all the way down, like the scissors \ndidn’t go all the way down. \n \nQ So admittedly, the conversation did turn from National Lift \nbusiness to your prior engagements with him as the owner of Town \n& Country? \n \nA Yes, sir. \n \nQ Okay. And tell me what you all discussed about this debt he \nfelt you owed him. \n \nA Well,  he  showed  me  on  a  computer.  He  said,  It’s  right \nhere.” \n \n And I said, “Okay.” Well, that is fair enough.” \n \n I said, “Well, David, there is two options we’ve got here.” I \nsaid, “I will write you a check or I’ve got some tree work to do,” \nbecause I had no idea he would be upset over anything like that. \n \nQ Okay. \n \nA And then I asked him, I said, “David, see Town & Country \nright  there,  see  the  phone  number?  I  have  had  that  phone  number \n\nDawson – H109611 \n \n-11- \nfor 20 years. If you had any issues with me, why didn’t you give \nme a call?” \n \n You  know,  like  it  was –  if  I  am  correct,  it  was  a  valve \nadjustment  on  a  truck  so  I  am  thinking,  well,  maybe  a  couple  of \nhours, 100 bucks an hour, 200 bucks. It was peanuts. \n \nQ Did you try to pay him? \n \nA Yes, I did. \n \nQ And? \n \nA And he said, “No. We are done.” \n \n And I said, “Okay. Fair enough.” \n \n And  he  started  getting  hostile  and  I  just  got  nervous  and  I \nthought I am getting out of here. \n \nQ Okay. And then what did you do? \n \nA I attempted to leave. I turned around and walked out as the \nvideo shows. I was just walking out like this and I had his card and \nhe grabbed me from behind. And then he spun me around and then \nwe kind of like (indicating) played patty-cake for a minute like this \n(indicating) because I guess he was attacking me over the business \ncard.  And  I  was  halfway  out  of  the  office  and  then  another  guy \ncome  up  from  behind  and  grabbed  me  from  behind  and  slammed \nme on the ground. \n \nQ Okay. Had you ever talked to that other person? \n \nA No. \n \nQ Who had it turned out that person was? \n \nA His son. \n \nQ Okay. Adult son? \n \nA (The witness nods his head up and down.) \n \nQ Okay. When you hit, what part of your body hit the floor? \n \n\nDawson – H109611 \n \n-12- \nA My left shoulder. \n \nQ Okay. Carpet, concrete? \n \nA Concrete. \n \nQ Concrete.  Okay.  Did  you  feel  pain  as  soon  as  you  it  the \nfloor? \n \nA I couldn’t move. \n \n The claimant was also questioned on cross examination  about the events at  Whitt Truck \nRepair on December 3, 2021, as follows: \nQ Whitt  Truck  Repair.  You  go  in  there  on  a  cold  call  as \ndirected by your employer; is that right? \n \nA That is correct. \n \nQ But you knew Mr. Whitt? \n \nA Yes, sir. \n \nQ But why did you say you don’t know if he knew you or \nnot? \n \nA Because  he  acted –  when  he  said,  “Well,  you  owe  me \nmoney.” It happened all at once. He might have just been pulling \nsomething, but he might have known me. I don’t know. I can’t \nanswer for him. \n \nQ How could he say that you owe him money if he didn’t \nknow you? \n \nA It’s when –  when  I  went  up  there –  I  will  start  from  the \nbeginning.  I  gave  him  the  card  and  brochure  from  National  Lift \nand we talked about that for a couple of minutes. And then he went \nin, “Well, you owe me money.” But we had a civil conversation \nfor several minutes about National Lift. \n \nQ Okay. \n \nA And  I  had  no  idea  that  he  would  be  hostile  towards  me  or \nviolent; otherwise, I wouldn’t have went in there. \n\nDawson – H109611 \n \n-13- \n \nQ Now,  you  said  you  were  shocked  that  he  said  you  owed \nhim money, that you didn’t realize you did owe him money; is that \nright? \n \nA That  is  correct  because  we  went  back  and  forth  multiple \ntimes over the years. He owed me. Sometimes I owed him. So if I \ndid tree work, I didn’t go and call him and say, “You owe me \nmoney  for  tree  work.”  I  just  waited  until  I  needed  some  truck \nrepair and then we would barter it. \n \nQ And  that  is  in  your  capacity  as  the  owner  of  Town  & \nCountry? \n \nA I  went  in  there  in  the  capacity  of  National  Lift  and  we \ntalked about that money for a period of time before we went back \nto in the capacity of National Lift with the business card. He spun \nme  around  mad  because  he  wanted  his  business  card  back  and  he \nshoved the pamphlets at me of his. So at that point I was just trying \nto  exit,  as  an  employee  of  National  Lift  exit  the  building.  And  I \ndon’t know if you have seen the video, but I was hunched over just \na little bit and I was headed out the door and he grabbed me like a \nbear. He is about 6 foot 6 and he is a professional bicycle rider and \nI am an old man. That’s when he spun me around wanting that card \nback  and  I  needed  that  card  because  I  was  instructed  by  my \ncompany  to  get  the  card  for  proof  that  I  made  these  stops  and  to \ntransfer that information over to the full-time salesman. \n \nQ But  the  money  that  was  owed  to  Whitt  Service  Company \nwas  owed  to  them  by  Town  &  Country?  This  money  that  he  said \nthat  you  owed  him  is  because  you  had  some  of  your  equipment \nfrom Town & Country worked on? \n \nA That is correct, a bucket truck. \n \nQ Okay. So that is all Town & Country’s debt that was owed \nthat wasn’t paid? \n \nA That’s what he claimed. \n \nQ Okay.  And  then  as  he  pulls  this  up,  you  said  you  made \nsome comments? \n \nA I made a comment. \n \n\nDawson – H109611 \n \n-14- \nQ That might have made him angry? \n \nA Maybe  so,  but  it  was  truth.  Right  next  to  my  name  is  my \nphone number and I said, “David, why didn’t you call me?” And I \ngot  it  still  to  this  day  in  my  phone  all  of  his  information.  And  it \nwasn’t because I had put it in there. It’s because he sent it to me. \n \nQ Okay. \n \nA Why he acted like an animal, I don’t know. \n \nQ So  he  grabbed  you  following  this  conversation  about  the \nmoney that Town & Country owed him; correct? \n \nA I don’t know why he grabbed me. He grabbed me because \nhe  wanted  his  business  card  back  that  I  needed  for  National  Lift. \nHe didn’t grab me because –  the  money  thing  was  over.  He  said, \n“We’re done.” That chapter was closed per David Whitt. \n \nQ Okay. \n \nA Now  I  am  leaving,  okay,  with  my  business  card  that  says \nDavid Whitt that is going to go on – as my employer instructed me \nto do. We were done with that conversation. And then he snatches \nme, this monster snatches me and spins me around and we do this \n(indicating).  And  then  another  monster  impales  me  to  the  ground \nand it changed my life. \n \n The  claimant  was  seen  at  Mercy  Hospital  Emergency  Department  in  Fort  Smith, \nArkansas,  after  his  altercation  at  Whitt  Truck  Repair.  Following  is  a  portion  of  the emergency \ndepartment record from that visit: \nHISTORY OF PRESENT ILLNESS \nSteven P. Dawson, a 60 y.o. male presents to the ED \n \nSteven P. Dawson is a 60 y.o. that presents with left shoulder pain \nsecondary  to  an  assault,  onset  unclear.  Patient  states  that  a  guy \nthrew him on the ground resulting in pain to the facial area and left \nshoulder that radiates downward to the forearm. Patient reports that \nthe pain improves when he props his arm on the counter. He denies \nLOC. He denies any other injuries at the time. \n \n\nDawson – H109611 \n \n-15- \n On  December  29,  2021,  the  claimant  underwent  an  MRI  of  his  left  shoulder.  Following \nwe find the  Impressions  section of that  MRI report performed  at Mercy Hospital and signed by \nDr. Leo Drolshagen. \nIMPRESSION: \n1.  Fracture  of  the  inferior  bony  glenoid  and  tear  of  anterior \ncartilaginous labrum. Also could be correlated with CT findings. \n2.   Fracture   of   the   humeral   head/greater   tuberosity   without \ndisplacement. \n3. Tear of supraspinatus tendon. \n4. High-grade partial tear subscapularis tendon. \n5.    Hypertrophy    acromioclavicular    joint.    Moderate    shoulder \neffusion. Extensive edema in proximal humeral marrow. \n \n On February 7, 2022, the claimant underwent surgical intervention at Mercy Orthopedic \nHospital at the hands of Dr. Steven Smith. Following is a portion of that operative report: \nPREOPERATIVE DIAGNOSES: \n1. Rotator cuff tear, left shoulder \n2. Biceps tendinopathy \n3. Acromioclavicular arthropathy. \n \nPOSTOPERATIVE DIAGNOSES: \n1. Rotator cuff tear, left shoulder. \n2. Biceps tendinopathy. \n3. Acromioclavicular arthropathy. \n \nPROCEDURE: \n1. Left shoulder arthroscopy. \n2. Arthroscopic rotator cuff repair. \n3. Arthroscopic biceps tenotomy. \n4. Arthroscopic acromioplasty with subacromial bursectomy. \n5.  Arthroscopic  distal  clavicle  resection  with  resection  AC  joint \nmeniscus. \n \n The  claimant  introduced  a  CD  into  evidence  that  contains  two  videos,  seemingly  the \nsame  events  from  two  different  views.  In  the  video  the  claimant  is  seen  entering  a  room  where \nDavid  Whitt  is  seated.  They  briefly  talk  and  exchange  objects,  presumably  David  Whitt’s \nbusiness  card  for  the  respondent-employer  sales  information  given  by  the  claimant.  The  men \n\nDawson – H109611 \n \n-16- \ncontinue  to  talk  until  eventually  the  claimant  begins  to  leave.  Mr.  Whitt  gives  chase  and  grabs \nthe  claimant  by  his  arm.  Brief  shoving  between  the  two  occurs  until  a  man  described  by  the \nclaimant  in  testimony  as  David  Whitt’s  son  intervenes.  The  son  puts  his  arms  around  the \nclaimant  and  releases  him  towards  the  ground.  The  claimant  hits  the  ground  and  remains  there \nfor  some  time.  I  note  that  the  video  provides  no  audio  recording  and  is  very  grainy  in \nappearance. It appears from the video evidence that the claimant’s injuries were sustained when \nhe hit the floor at the end of the altercation.  \n It is the claimant’s burden to prove by a preponderance of the evidence that he sustained \ncompensable injuries to his left upper extremity and left shoulder on or about December 3, 2021. \nIn  review  of  the  medical  evidence  submitted  into  the  record,  the  claimant  is  able  to  prove  the \nexistence of objective medical evidence to support his claim  on an upper left extremity and left \nshoulder  injury.  Both  the  MRI  and  operative  reports  support  the  occurrence  of  such  injuries. \nHowever, the claimant must also prove by a preponderance of the evidence that the injury arose \nout of and in the course of employment. Deffenbaugh Indus. v. Angus, 313 Ark. 100, 852 S.W.2d \n804 (1993). The claimant in this matter was certainly in the time, place and circumstance of his \nemployment given his duties to make sales calls on December 3, 2021, which would give rise to \na finding that the claimant was in the course of his employment at the time that he was injured. \nThe  claimant’s  burden,  however,  is  more  in  depth  than  merely  being  in  the  course   of \nemployment. He must also prove that his injuries arose out of that said employment. “Arising out \nof  employment”  refers  to  the  origin  or  cause  of  the  accident/incident,  while “in  the  course  of \nemployment” refers to the time, place circumstance under which the injury occurred. Little Rock \nConvention and Visitor Bureau v. Pack, 60 Ark. App. 8959 S.W.2d 415 (1997).  \n\nDawson – H109611 \n \n-17- \n After  a  review  of  the  claimant’s  testimony  and  the  video  evidence  submitted  into  the \nrecord, I find the origin or cause of the claimant’s incident to be that of a personal dispute over \nmoney Mr. Whitt believed the claimant owed him. The claimant was not involved in a physical \naltercation  by  chance,  random  act,  or  Mr.  Whitt’s  dislike  of  the  respondent-employer.  Instead, \nthe altercation occurred  because Mr. Whitt, rightfully or not, believed  the claimant owed him  a \npersonal debt arising from his personal business, Town & Country Contractors. This altercation \nthat caused the claimant’s injuries had nothing to do with his employment with the respondent-\nemployer and is solely based on his personal business issues. \n The  claimant  might  argue  the  positional-risk  doctrine,  which  stands  for  compensability \nwhen “conditions  related  to  employment  contribute  to  the  risk  by  placing  the  employee  in  a \nposition  that  increases  the  dangerous  effects  of  the  incident.”  This  is  stated  through  a  defense \ndiscussion of idiopathic falls in ERC Contractors Yard and Sales v. Robertson, 335 Ark. 63, 977 \nS.W.2d  212  (1998).  However,  here  there  is  no  positional  risk.  The  claimant  was  not  in  the \nprocess  of  performing  some  activity  that  was  inherently  risky,  such  as  driving  a  semi-tractor \ntrailer or being at a great height while working. Instead, the claimant walked into a business and \nwas involved in an altercation, not because of his work for the respondent-employer, but because \nof  what  Mr.  Whitt  believed  was  a  debt  owed  to  him  personally  by  the  claimant.  That  belief  by \nMr.  Whitt  is  the  origin  or  cause  of  the  claimant’s  injuries,  not  his  employment  with  the \nrespondent. This case is supported by the outcome of Kendrick v. Peel, Eddy and Gibbons Law \nFirm, 32 Ark. App. 29,  795 S.W.2d 365  (1990),  in which the Court of  Appeals cited 1 Larson, \nthe Law of Workers’ Compensation 6l.50 (3/90, as follows:  \nAn important and growing number of courts are accepting the full \nimplications  of  the  positional-risk  test:  An  injury  arises  out  of \nemployment if it would not have occurred but for the fact that the \n\nDawson – H109611 \n \n-18- \nconditions  and  obligations  of  the  employment  placed  claimant  in \nthe   position   where   he   was   injured....   This   theory   supports \ncompensation,   for   example,   in   cases   of   stray   bullets,   roving \nlunatics,  and  other  situations  in  which  the  only  connection  of  the \nemployment  with  the  injury  is  that  its  obligations  placed  the \nemployee in the particular place at the particular time when he was \ninjured   by   some   neutral   force,   meaning   by “neutral”   neither \npersonal   to   the   claimant   nor   distinctly   associated   with   the \nemployment. \n \n The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained \ncompensable injuries to his upper left extremity and left shoulder on or about December 3, 2021.  \n The  respondent  made  a  motion  to  supplement  the  record  with  the  claimant’s  deposition \ntranscript  in  an  email  to  the  Commission  on  August  18,  2023.  The  respondent’s  motion  to \nsupplement is denied. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 24, 2023, and contained in a Pre-hearing Order filed April 25, 2023, are hereby accepted as \nfact. \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained \ncompensable injuries to his left upper extremity and left shoulder on or about December 3, 2021.   \n 3.  The  claimant  has  failed  to  prove  that  he  is  entitled  to  medical  treatment  for  those \nalleged injuries. \n 4. The claimant has failed to prove his entitlement to temporary total disability benefits. \n\nDawson – H109611 \n \n-19- \n 5. The claimant has failed to prove that his attorney is entitled to an attorney’s fee in this \nmatter.  \n ORDER \n Pursuant to the above findings and conclusions, I have no alternative but to deny this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":30372,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H109611 STEVEN DAWSON, Employee CLAIMANT NATIONAL LIFT TRUCK, Employer RESPONDENT LIBERTY MUTUAL GROUP, Carrier RESPONDENT OPINION FILED OCTOBER 10, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claima...","outcome":"denied","outcomeKeywords":["granted:1","denied:4"],"injuryKeywords":["shoulder","rotator cuff","back","fracture"],"fetchedAt":"2026-05-19T23:01:20.026Z"},{"id":"alj-H201641-2023-10-10","awccNumber":"H201641","decisionDate":"2023-10-10","decisionYear":2023,"opinionType":"alj","claimantName":"Charles Jackson","employerName":"Friedman Indus., Inc","title":"JACKSON VS. FRIEDMAN INDUS., INC. AWCC# H201641 OCTOBER 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Jackson_Charles_H201641_20231010.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jackson_Charles_H201641_20231010.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H201641 \n \n \nCHARLES W. JACKSON, EMPLOYEE CLAIMANT \n \nFRIEDMAN INDUS., INC., \nEMPLOYER RESPONDENT \n \nARGONAUT MIDWEST INS. CO., \nCARRIER RESPONDENT \n \n \nOPINION FILED OCTOBER 10, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 6, 2023, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant  represented  by  Mr.  Bill  E.  Bracey,  Jr.,  Attorney  at  Law,  Blytheville, \nArkansas (neither appearing). \n \nRespondents  represented  by  Mr.  William  C.  Frye,  Attorney  at  Law,  North  Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.  A  hearing  on  the  motion  was  conducted  on  October  6,  2023,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant  and  his \ncounsel   waived   their   appearance   at   the   hearing.  Without   objection,   the \nCommission’s  file  on  the  claim has  been  incorporated  herein  in  its entirety  by \nreference. \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed on February 23, 2022, Claimant \npurportedly suffered a contusion to his head when he was struck by a steel coil at \nwork.    According  to  the  Form AR-2  that  was  filed  on  February  28,  2022, \n\nJACKSON – H201641 \n \n2 \n \n \nRespondents  accepted   the   claim   and   paid  medical   and   indemnity   benefits \npursuant thereto. \n On August 10, 2022, Claimant filed a Form AR-C, requesting certain initial \nbenefits  in  connection  with  his  alleged  injury.    Therein,  he  claimed  that  being \nstruck  by  the  coil  resulted  in  his  suffering  from  headaches,  vertigo,  and  loss  of \nsense  of  smell.    Respondents’  counsel  made  his  entry of  appearance on  August \n17, 2022; and on August 26, 2022, he notified the Commission that his clients had \npaid  all  appropriate  benefits  in  connection  with  the  claim,  including  permanent \npartial  disability  benefits  in  accordance  with  a  three  percent  (3%)  impairment \nrating to the body as a whole that Claimant had been assigned. \n Claimant requested a hearing.  The file was assigned to me on August 31, \n2022;  and  on  September  2,  2022,  my  office  issued  prehearing  questionnaires  to \nthe  parties.    However,  on  September  22,  2022,  Claimant’s  counsel  withdrew  the \nhearing  request  because  he  was  being  scheduled  for  emergency  back  surgery.  \nFor that reason, that file was returned to the Commission’s general files. \n On  November  14,  2022,  he  made  another  hearing  request.    The  file  was \nre-assigned  to  me  on  November  16,  2022;  and  my  office  issued prehearing \nquestionnaires  on  November  17, 2022.    Claimant  filed  a timely  response  thereto \non December 13, 2022; and Respondents followed suit on December 27, 2022. A \nprehearing  telephone  conference  was  scheduled  for  February  13,  2023.    During \nthat  conference,  Claimant’s  counsel  stated that  his  client  was going  to  request  a \n\nJACKSON – H201641 \n \n3 \n \n \none-time  change  of  physician  from  the  Commission.    For  that  reason,  by \nagreement  of  the  parties,  the  file  was  returned to  the  Commission’s  general  files \non  that  day.  However,  review  of  the  file  reflects  that  Claimant  did  not  follow \nthrough by making a change-of-physician request. \n The  record  reflects  that  no  further  activity  occurred  until  August  10,  2023, \nwhen Respondents filed the instant motion.  Therein, they requested dismissal of \nthe  claim  under  AWCC  R.  099.13 “[b]ased  on  the  fact  that  no  action  has  been \ntaken in this matter since the Claimant filed the AR-C . . . .”  On August 10, 2023, \nmy  office  wrote  Claimant  and  his  attorney,  requesting  a  response  to  the  motion \nwithin 20 days.  However, no response to the Motion to Dismiss was forthcoming. \n On September 5, 2023, I scheduled a hearing on the motion for October 6, \n2023,  at  11:00  a.m.  at  the  Craighead  County  Courthouse  in  Jonesboro.  The \nNotice  of  Hearing  was  sent  to  the  parties  by  certified  and  first-class  mail.    The \nUnited  States  Postal  Service  cannot  confirm  whether  Claimant  claimed  the \ncertified  letter;  but  the  first-class  mail  was  not  returned.    Moreover,  his  attorney \nreceived it, writing me on September 28, 2023: \nDear Judge: \n \nAs per our recent conversation, Mr. Jackson has received payment \nfor  his  rating,  is  employed  at  a  higher  wage  and  does  not  wish  to \ncontinue to pursue this claim, so that it may be dismissed. \n \nThe evidence thus preponderates that Claimant received notice of the hearing. \n\nJACKSON – H201641 \n \n4 \n \n \n The hearing on the Motion to Dismiss proceeded as scheduled on October \n6,  2023.  Both  Claimant  and  his  counsel  waived  their  appearance.    But,  again, \ncounsel  has  indicated  no  objection  to  a  dismissal  of  this  claim.    Respondents \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \n\nJACKSON – H201641 \n \n5 \n \n \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nmatter–by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue this claim because he has taken no further action in \npursuit of it—including appearing at the October 6, 2023, hearing on the Motion to \nDismiss—since  the  prehearing  telephone  conference  on  February  13,  2023.  \nThus, the evidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \n\nJACKSON – H201641 \n \n6 \n \n \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Professional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of the claim should be and hereby is entered without prejudice. \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":8534,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H201641 CHARLES W. JACKSON, EMPLOYEE CLAIMANT FRIEDMAN INDUS., INC., EMPLOYER RESPONDENT ARGONAUT MIDWEST INS. CO., CARRIER RESPONDENT OPINION FILED OCTOBER 10, 2023 Hearing before Administrative Law Judge O. Milton Fine II on October 6, 2023, in Jonesboro, C...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:01:22.091Z"},{"id":"alj-H108753-2023-10-10","awccNumber":"H108753","decisionDate":"2023-10-10","decisionYear":2023,"opinionType":"alj","claimantName":"Harold James","employerName":"Eutaw Construction Inc","title":"HAROLD VS. EUTAW CONSTRUCTION INC. AWCC# H108753 OCTOBER 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/James_Harold_H108753_20231010.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"James_Harold_H108753_20231010.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H108753 \n \nHAROLD L. JAMES, EMPLOYEE  CLAIMANT \n \nEUTAW CONSTRUCTION INC., \nEMPLOYER                                                                                                RESPONDENT \n \nZURICH AMERICAN INSURANCE CO. \nINSURANCE COMPANY/TPA                                                                          RESPONDENT  \n \n \nOPINION FILED OCTOBER 10, 2023 \n \nHearing before Administrative Law Judge Steven Porch on October 6, 2023 in Marion, \nCrittenden County, Arkansas. \n \nClaimant was  represented  by  Mr.  Scott  Hunter,  Jr.,  Attorney  at  Law, Jonesboro, \nArkansas. \n \nThe Respondents were represented by Mr. Michael Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on October 6, 2023, in Marion, \nArkansas.    Claimant, was  represented  by Mr.  Scott  Hunter,  Jr.,  Attorney  at  Law, \nJonesboro,  Arkansas.  However, neither Claimant nor  his attorney  were present  at  the \nhearing. Respondents were represented at the hearing by Mr. Michael Ryburn, Attorney \nat  Law,  of Little  Rock,  Arkansas.    In  addition  to Respondent’s argument,  the  record \nconsists   of all   exhibits   properly   admitted   before   the   Commission   including the \nCommission’s file–which has been incorporated herein in its entirety by reference. \n The evidence reflects that Claimant’s injury occurred on July 20, 2020, where he \npurportedly fractured his L4 vertebrae while pulling rebar. This incident allegedly occurred \nduring the course and scope of his employment. Since filing his Form C on October 17, \n\nJAMES H108753 \n \n 2 \n2022, this case has been inactive until Respondents filed a Motion to Dismiss due to the \nlack of prosecution. A hearing was held on October 6, 2023, in Marion, Arkansas on the \nMotion to Dismiss. As previously stated, neither the Claimant’s attorney nor the Claimant \nwere present for the hearing. The Claimant’s attorney waived his appearance. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents did prove  by  a  preponderance  of  the  evidence  that  Claimant  has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted. The  standard \n\nJAMES H108753 \n \n 3 \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice for the Motion to Dismiss hearing under Rule 13. I further find \nthat Claimant has abridged this rule. Thus I find Respondent’s Motion to Dismiss should \nbe granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4950,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108753 HAROLD L. JAMES, EMPLOYEE CLAIMANT EUTAW CONSTRUCTION INC., EMPLOYER RESPONDENT ZURICH AMERICAN INSURANCE CO. INSURANCE COMPANY/TPA RESPONDENT OPINION FILED OCTOBER 10, 2023 Hearing before Administrative Law Judge Steven Porch on October 6, 2023 in ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:01:24.128Z"},{"id":"alj-H205510-2023-10-10","awccNumber":"H205510","decisionDate":"2023-10-10","decisionYear":2023,"opinionType":"alj","claimantName":"Dale Taylor","employerName":null,"title":"TAYLOR VS.BAD BOY MOWERS, LLC AWCC# H205510 OCTOBER 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TAYLOR_DALE_H205510_20231010.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TAYLOR_DALE_H205510_20231010.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H205510 \n \nDALE H. TAYLOR, EMPLOYEE           CLAIMANT \n \nBAD BOY MOWERS, LLC, EMPLOYER           RESPONDENT  \n \nCHUBB INDEMNITY INS. CO.  \nCARRIER/TPA               RESPONDENT \n  \nOPINION FILED OCTOBER 10, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty Arkansas, on October 10, 2023. \n \nClaimant is pro se and did not appear. \n \nRespondents  are  represented  by  Mr.  Rick  Behring,  Jr.,  Attorney-at-Law  of  Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on October 10, 2023, in Little Rock, \nArkansas,  on  respondents’  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation  Act.    The  claimant  was  originally  represented  by  Laura  Beth  York,  who \nwas allowed to withdraw by an Order of the Full Commission dated June 28, 2023.  The \nrespondents filed a Motion to Dismiss on August 1, 2023.       \nA hearing was set for October 10, 2023, in regard to the Motion to Dismiss.  The \nclaimant failed to appear at the time of the hearing after proper notice.  At the time of the \nhearing, Rick Behring appeared on behalf of the respondents and asked that the matter \nbe dismissed for lack of prosecution.   \nThe claimant had originally filed a Form C on November 15, 2022,contending that \nhe had injured his lumbar spine and “other whole body.”   The respondents filed an AR-2 \n\non  August  3,  2022,  and  the  claim  was  disputed  in  its  entirety.    The  respondents  had \npropounded  discovery  to  the  claimant  who  had  elected  not  to  participate  in  discovery \nfailed to execute discovery authorization. \nAfter a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondents’ \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice pursuant to Ark. \nCode Ann. §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act at \nthis time.   \nIT IS SO ORDERED:  \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2537,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205510 DALE H. TAYLOR, EMPLOYEE CLAIMANT BAD BOY MOWERS, LLC, EMPLOYER RESPONDENT CHUBB INDEMNITY INS. CO. CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 10, 2023 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski County Arkansa...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":["lumbar"],"fetchedAt":"2026-05-19T23:01:26.190Z"},{"id":"alj-H200936-2023-10-10","awccNumber":"H200936","decisionDate":"2023-10-10","decisionYear":2023,"opinionType":"alj","claimantName":"Melvin Thompson","employerName":"City Of Helena/west Helena","title":"THOMPSON VS. CITY OF HELENA/WEST HELENA AWCC# H200936 OCTOBER 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/THOMPSON_MELVIN_H200936_20231010.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOMPSON_MELVIN_H200936_20231010.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H200936 \n \nMELVIN THOMPSON, EMPLOYEE       CLAIMANT \n \nCITY OF HELENA/WEST HELENA, EMPLOYER          RESPONDENT \n \nAR MUNICIPAL LEAGUE-WCT, TPA                RESPONDENT \n \n \n \nOPINION FILED 10 OCTOBER 2023 \n \n \nHeard before Arkansas Workers’ Compensation Commission (AWCC) Administrative  Law \nJudge JayO. Howe on 20 April 2023 in Helena/West Helena, Phillips County, Arkansas. \n \nMr. Kenneth A. Olsen, Attorney-at-Law of Bryant, Arkansas, appeared for the claimant. \n \nMs.  Mary  K.  Edwards,  Attorney-at-Law  of  North  Little  Rock,  Arkansas, appeared for  the \nrespondents. \n \nI.  STATEMENT OF THE CASE \n \nThe  above-captioned  case  was  heard  on 20 April 2023 in Helena/West  Helena, \nArkansas, after the parties participated in a prehearing telephone conference on 17 January \n2023.  A Prehearing Order, admitted to the record without objection as “Commission’s Exhibit \nNo 1”,  was  entered  on 18 January  2023. The  Order  stated that the ISSUES  TO  BE \nLITIGATED included  compensability; entitlement  to  medical  and  indemnity  benefits; \ncontroversion; and attorney’s fees. All other ISSUES were reserved. \nThe Prehearing Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed between the parties on 11 January \n2022 when the claimant sustained a back injury. \n \nThe claimant was the sole WITNESS at the hearing. \n\nTHOMPSON – H200936 \n \n2 \n \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated by reference into the Prehearing Order and were listed as follows: \nThe  claimant  CONTENTDS  he  is  entitled  to  medical  and  indemnity  benefits  and \nattorney’s fees.  \nThe respondents CONTEND that the claimant sustained an injury on 11 January 2022 \nwhile working for the City of Helena/West Helena.  His claim was accepted and benefits were \npaid accordingly.  Claimant, however, reinjured his back in a motor vehicle accident on 16 \nJanuary  2022,  and  that  injury  was  not  work-related.  They  further  contend  that  any \ncontinued problems are or were related to the motor vehicle accident and not the 11 January \n2022  work  incident.  The  respondents  reserved the  right  to  amend  their  responses  or \npleadings. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving  reviewed  the  record  as  a  whole  and  having  heard  testimony  from  the  witness, \nobserving his demeanor, I make the following findings of fact and conclusions of law under \nArk. Code Ann. § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The claimant failed to establish, by a preponderance of the evidence, that he is entitled \nto any additional benefits or medical treatment. \n \n3. The claimant, accordingly, failed to establish that he is entitled to any attorney’s fee. \n \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE    \nA. Claimant on Direct-Examination  \nMelvin  Thompson  is  a fifty-five (55) year  old  male who was working for  the  City of \nHelena/West Helena in January of 2022. He testified that on January 11\nth\n, the robotic arm \nof the city’s  garbage  truck was  not  working  properly, so  he  and  others were  dumping \nresidential  garbage  containers  by  hand.  [TR  at  12.]  He  offered  that  he  hurt  his  back \n\nTHOMPSON – H200936 \n \n3 \n \nstruggling  with  one  particularly  heavy  container. Mr. Thompson said, “the next  day, I \ncouldn’t get up out of the bed, I was in so much pain.  So I called my supervisor at 5:30, 6:00 \n[in the morning], and they instructed me to go to [Helena Regional Medical Center (HRMC)].” \n[TR at 13.] The claimant said that the hospital performed various imaging. [TR at 14.] \nMr.  Thompson  stated  that  this  was  not  his  first  back  injury.  He  worked  in \nconstruction  most  of  his  life  and  specifically  had  back  trouble  in  2014. Past  procedures \nperformed included “epidurals and block shots” and rhizotomies, but he denied any “invasive \nback surgery.”  [TR  at 15.] Multiple  MRIs were performed  over  the  years,  and  he  was \ndiagnosed with disc bulge as far back as 2014.  More disc bulges were seen via MRI in 2017. \n[TR at 16.] \nHe experienced some muscle spasms in 2018 and went for another MRI in 2020 when \nbulging discs were seen again, along with an annular fissure. [TR at 17.] He stated that he \ndid  not  return  to  work  after  the  11  January  2022  incident. At  the  end  of  March, Mr. \nThompson saw a provider in Memphis who recommended physical therapy for his back pain. \n[TR at 18.]  A 2022 MRI revealed an additional disc bulge. He associated that bulge with new \npain, including numbness and tingling. [TR at 19.] \nWithin  a  week  of  his  reported  work  injury,  Mr.  Thompson  was  in  a  motor  vehicle \naccident, when “a vehicle shot past me and cut me off, hit my front bumper.” [TR at 20.]  He \ndeclined ambulance transportation and immediate medical treatment after the accident. [TR \nat 21.] \nAccording to the claimant, he did not complete physical therapy because coverage was \ndenied. That was around the time that he learned his claim was being denied going forward. \n[TR  at  22.]  Mr.  Thompson  testified  that  he  already  received  some  temporary  disability \nbenefits  on  the claim  and that  those started  the  day  he reported  an injury.  Benefits were \npaid from January into March. [TR at 23.]  \n\nTHOMPSON – H200936 \n \n4 \n \nThe claimant testified that he has not been able to return to work since the 11 January \nincident and he claimed that neither Dr. Lovell [the provider in Memphis] nor Dr. Michel [his \nPCP] released him to return to work. [TR at 24.] Mr. Thompson said that Medicaid covers his \ntreatment with Dr. Michel when he does not have other insurance coverage. The claimant \nstated  that  he  continues  seeing  Dr.  Michel  for  back  pain,  muscle  spasms,  and  other \nmedications. [TR at 25.] He denied taking medication for his back prior to the 11 January \n2022 incident. [TR at 26.] He also described his back as “good” for the seven to eight years \nprior to that date. When asked, “How is your back as we sit here today?” his response was \nthe same—“good.” [TR at 27.] He could not remember the last time he took Gabapentin for \nmuscle spasms. \nMr. Thompson concluded his direct-examination saying that he felt he could go back \nto work, that he did not need additional medical treatment, that he did not need a referral to \na specialist, and that his current work status is without restrictions. [TR at 28.] \n B.  Claimant on Cross-Examination by Ms. Edwards \n The claimant stated that he was discharged home from HRMC after imaging studies \nand being assessed with lumbar and cervical sprains. [TR at 29.] He then followed up with \nhis PCP Dr. Michel, whom he has seen for seven (7) or eight (8) years. [TR at 30.] \n Mr. Thompson denied any injury in the car accident a few days after his work incident \nand denied seeking damages for injuries in the lawsuit he filed subsequent to that accident. \nWhen asked, “You didn’t claim any sort of back injury in that, correct?” he answered, \n“Correct.” Id. Reviewing the lawsuit’s complaint, he acknowledged that chest pain, rib pain, \nand back pain were listed among the sustained injuries. [TR at 31.] Somewhat confusingly, \nhe stated that the complaint was accurate but that “they put the back pain down wrong.” [TR \nat 32.] The claimant also acknowledged that he recently settled the lawsuit.   \n\nTHOMPSON – H200936 \n \n5 \n \n Mr.  Thompson  confirmed  that  he  had  not  returned  to  work  since  the  date  of  the \nincident.  He  acknowledged  HRMC  authorized  his  return to work. When asked, “But you \ndidn’t want to go back to work, correct?” he answered, “I didn’t. They wouldn’t let me.” [TR \nat 34.] He further acknowledged that Dr. Michel authorized his return to work and that Dr. \nLovell eventually returned him to work, also. The claimant confirmed again, though, that he \nnever returned to work after 11 January 2022.  \n The claimant acknowledged his past workers’ compensation claims for back injuries \nand that Dr. Michel prescribed him medication over the years for his back symptoms. [TR at \n35.] Mr. Thompson then testified about some of his past back issues and treatment history, \nincluding an imaging note from 2014 stating “degenerative findings normal for age.” [TR at \n36-40.]  In  a  24  November  2015  note  the  same  physician  reported, “he is not a surgical \ncandidate” and “he  wants  to  be  off  work,  but  explained  that  his  lower-back  pain  does  not \nrequire him to be permanently off work.” The claimant said he was aware of that report. [TR \nat  41.]  His  cross-examination  concluded  with confirmation  that  another  provider also \nauthorized his return to work without restrictions in January of 2023. [TR at 42.] \nD.  Claimant on Additional Examination \nOn redirect examination, the claimant stated that he did not tell Dr. Lovell about his \nauto accident when he saw him in March of 2022. He also stated that an attorney drafted \nand filed his personal injury lawsuit without his review. [TR at 43.] \nBefore closing the record, the respondents’ counsel stated that the claim was denied \nafter they learned of Mr. Thompson’s auto accident, but she made clear that they were not \nseeking repayment for any of the benefits already paid to Mr. Thompson or on his behalf.  \n E.  Medical Evidence \n An extensive set of medical records was offered and admitted to the record as “Joint \nExhibit No 1.”  Most of those records, 124 of the 166 pages, related to the claimant’s various \n\nTHOMPSON – H200936 \n \n6 \n \noffice  visits  and  treatments  for  back  problems  pre-dating  the  11  January  2022  injury. \nConsistent with his testimony around a history of back problems, the records reflect ongoing \ncomplaints of pain and imaging reports showing various levels of spinal disc derangement. \n Specific  to  this  claim, Mr.  Thompson  was  seen  at  HRMC  a  little  after  2:00  in  the \nafternoon of 12 January 2022, where he reported pain in his back and neck. See J. Ex. No 1 \nat   125-132. X-Rays   were   ordered   and   IM   Ketorolac   and PO   Cyclobenzaprine   were \nadministered.  The  imaging  showed  no  acute  abnormalities.  According  to  his  discharge \nsummary, he was diagnosed with a cervical and lumbar sprains, prescribed 12 tablets each \nof Skelaxin and Ultracet, and given a Return to Work form. The summary listed his problem \nas ongoing. His work form initially authorized a return two (2)  days later,\n1\n but that form was \nrevised to authorize his return on 17 January 2022.\n2\n \n The claimant then presented to Dr. Michel at the Lee County Cooperative Clinic on \n14 January 2022. Id. at 133-136. He was noted without any acute distress and without any \noutward  signs  of  pain.  He  received  refills  for  several  medications  not  related  to  his  back \ncomplaints and does not appear to have received any prescriptions or treatments related to \nhis  back  pain.  Still,  he  was  given  a  note  excusing  him  from  work  through  the  end  of  the \nmonth.  \n Mr. Thompson’s next clinic presentation was on 21 February 2022. Id. at 137-138. He \nreported continuing pain and sought another prescription refill not related to his workplace \ninjury. An MRI was ordered. The cervical imaging showed some disc bulge and hypertrophy. \nId.  at  139-140.  The  lumbar spine  imaging was  compared  to  a  25 March  2020  study. Id.  at \n141-142.  Disc  desiccation  and  bulge  were  noted  as  unchanged,  with  an  overall  impression \n \n1\n Which a review of the calendar shows would have fallen on a Friday. \n2\n 17 January 2022 would have been the Monday following his visit. \n\nTHOMPSON – H200936 \n \n7 \n \nstating, “Disc desiccation and disc bulge from L2-L3 through L5-S1 unchanged. No significant \nspinal canal stenosis is noted with mild bilateral neural foraminal stenosis at L4-L5.” Id. \n The MRI results were discussed at a follow-up clinic visit on 7 March 2022. Id. at 143-\n144. The HPI in the visit note stated, “This is the case of a 54 Y/O Black male with history of \nchronic pain and involvement in motor vehicle accident. Presented to discuss MRI report of \nthe cervical spine.” An osteoporosis screening  was  ordered,  and  that  scan  resulted  normal \nbone density findings on 11 March 2022. Id. at 145. \n Mr. Thompson returned to the clinic again on 16 March 2022. Id. at 146-147. He was \nreferred to UAMS for evaluation, noting “chronic neck pain and lumbar spine  pain  with \nmuscle  spasm  long  standing  and  is  status  post  recently  of  a  MVA...  MRI  revealed \ndegenerative cervical and lumbar disc disease.” Id. \n The claimant then presented to the Semmes-Murphey Clinic in Memphis, Tennessee, \non  31  March  2022. Id.  at  148-152. According to the note, he was there “at the request of \nworker’s compensation.” Reviewing the imaging from 2017, 2020, and 2022, the clinic noted \n“there does appear to be a new disc bulge on the right at L4-5.  Otherwise  the  study  is \nsomewhat  unremarkable,  other  than  some  degenerative  changes.”  He  was  prescribed \nSkelaxin  and  Gabapentin,  with  light-duty  restrictions  and  no  commercial  driving,  and \nphysical therapy was ordered. The Return to Work note authorized his return that same day. \n The claimant presented again to the Lee County clinic the following day, 1 April 2022, \ncomplaining that he could not get his prescriptions. Id. at 153-155. The clinic note represents \nthat he reported a PT recommendation and “no return to work until further evaluation and \ncompletion of physical therapy.” Mr. Thompson was directed to Fenter Physical Therapy for \ntreatment.  \n Additional provider notes appear from the Lee County Cooperative Clinic appear in \nthe record from pages 156 to 166 of Joint Exhibit No 1. Mr. Thompson reported to the clinic \n\nTHOMPSON – H200936 \n \n8 \n \non 18 May 2022 that the workers’ compensation carrier was no longer covering the cost of \nGabapentin. Id. at 161. \nIV.  ADJUDICATION \n The  stipulated facts are  outlined  above. It  is settled that  the  Commission, with the \nbenefit of being in the presence of the witness and observing his or her demeanor, determines \na witness’ credibility and the appropriate weight to accord their statements. See Wal-Mart \nStores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999).   \nA.   The Claimant Failed  to  Prove, by  a  Preponderance  of  the  Evidence, that  he  is \nEntitled to Any Additional Benefits. \n \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving, \nby a preponderance of the evidence, that he sustained a compensable injury as the result of \na  workplace  incident.  Ark.  Code  Ann.  §  11-9-102(4)(E)(i).  A  compensable  injury  must  be \nestablished  by  medical  evidence  supported  by  objective  findings.  Ark.  Code  Ann.  §  11-9-\n102(4)(D).  Objective  medical  findings  are  those  findings  that  cannot  come  under  the \nvoluntary  control  of  the  patient.  Ark.  Code  Ann.  §  11-9-102(16)(A)(i).  Causation  does  not \nneed to be established by objective findings when the objective medical evidence establishes \nthat an injury exists and other nonmedical evidence shows that it is more likely than not that \nthe injury was caused by an incident in the workplace. Bean v. Reynolds Consumer Prods., \n2022 Ark. App 276, 646 S.W.3d 655, 2022 Ark. App. LEXIS 276, citing Wal-Mart Stores, Inc. \nv. VanWagner, supra. \nArkansas  law  requires  an  employer  to  promptly  provide  for  medical  treatment  and \nsurgical  services  that  are  reasonably  necessary  and  related  to  injuries  sustained  by  an \nemployee. Ark. Code Ann. § 11-9-508(a). A claimant must prove, by a preponderance of the \nevidence,  that  medical  treatment  is  reasonable  and  necessary. Wal-Mart  Stores,  Inc.  v. \nBrown, 82 Ark. App. 600, 120 S.W.2d 153 (2003).  Reasonable and necessary medical services \n\nTHOMPSON – H200936 \n \n9 \n \nmay include those necessary to, among other things, reduce or alleviate symptoms resulting \nfrom the compensable injury. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 953, \n1995 Ark. App. LEXIS 589. \nThe claimant failed to meet his burden on the claim that he is entitled to any beyond \nwhat  he  already  received.  Mr.  Thompson  does  not  deny  a  significant  history  of  back \nproblems.  The record shows that he called in early in the morning to report an injury after \nlifting a trash container the day before.  He presented to the emergency later that afternoon \nand was found to have no acute abnormality on imaging and no appreciable change compared \nagainst  available  imaging  from  2017.  The  emergency  department  providers  ordered  some \npain and anti-inflammatory medications and authorized a return to work in a few days (with \nan original return date for that Friday changed to the following Monday).  His problems were \nnoted  on  the  discharge  summary  as  ongoing,  and  he  was  to  return  to  work  without  any \nrestrictions. \nMr. Thompson then followed up with his PCP who extended his off-work status for an \nadditional  two (2) weeks without  stating why he  was  extending  that  status  and  without \nprescribing any treatment or medication for the claimant’s back. Two (2) days after that visit, \nthe claimant experienced a motor vehicle accident (MVA). \nDespite the expiration of his off-duty status, Mr. Thompson failed to return to work. \nThere  is  no  record  of  any  attempt  around  the  time  of  his  intended  return  to  work  to  seek \ntreatment, an extension of his off-work status, or some level of work restrictions to support \nany  ongoing  healing  efforts. Five (5) weeks after last presenting to his PCP’s clinic, the \nclaimant returned with more complaints of chronic pain and without reporting being involved \nin  an  MVA  just  days  after  his  last  visit.  Eventual  imaging  studies  revealed  findings \nconsistent with past studies and possibly an additional bulge at one disc area. \n\nTHOMPSON – H200936 \n \n10 \n \nMr. Thompson’s chronic pain, disc problems, and degenerative findings are noted \nthroughout  the  medical  records.  Additionally,  he  caused  a civil  complaint  to  be  filed \nsubsequent to that MVA where he alleged injuries to, among other things, his chest, ribs, and \nback which required medical treatment and which would continue to require the same. The \nclaimant  can  point  to  no  medical  evidence directly  relating  any  objective  finding  to  the  11 \nJanuary work incident, and he certainly cannot do so to the exclusion of the involvement of \nhis   days-later   MVA.   And   the   record   lacks   any   relevant   non-medical   evidence   that \npreponderates a finding that any ongoing back troubles are or were caused by the workplace \nincident claimed on 11 January 2022.  \nOn this record the claimant simply cannot prove, by a preponderance of the evidence, \nthat he suffered a compensable injury that entitled him to benefits and/or treatment beyond \nwhat the respondents already provided. \nB.  Attorney’s Fee \nConsistent  with  the  above,  the  claimant  fails  to  establish  that  he  is  entitled  to  an \nattorney’s fee. \nV.  ORDER \n Consistent with the Findings of Fact and Conclusions of Law set forth above, this \nclaim is DENIED AND DISMISSED. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":19551,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H200936 MELVIN THOMPSON, EMPLOYEE CLAIMANT CITY OF HELENA/WEST HELENA, EMPLOYER RESPONDENT AR MUNICIPAL LEAGUE-WCT, TPA RESPONDENT OPINION FILED 10 OCTOBER 2023 Heard before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law Judge JayO. ...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["back","lumbar","cervical","neck"],"fetchedAt":"2026-05-19T23:01:28.322Z"},{"id":"full_commission-H000742-2023-10-04","awccNumber":"H000742","decisionDate":"2023-10-04","decisionYear":2023,"opinionType":"full_commission","claimantName":"Daniel Kinne","employerName":"Central States Mfg., Inc","title":"KINNE VS. CENTRAL STATES MFG., INC. AWCC# H000742 OCTOBER 4, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Kinne_Daniel_H000742_20231004.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Kinne_Daniel_H000742_20231004.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H000742 \n \nDANIEL R. KINNE, \nEMPLOYEE \n \nCLAIMANT \nCENTRAL STATES MFG., INC.,  \nEMPLOYER \n \nRESPONDENT \nSENTRY INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED OCTOBER 4, 2023  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \n OPINION AND ORDER \nRespondent appeals an opinion and order of the Administrative Law \nJudge filed May 11, 2023.  In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law:  \n1.  The   stipulations   agreed   to   by   the   parties   at   a   pre-hearing \nconference  conducted  on  February  22,  2023  and  contained  in  a \npre-hearing order filed that same date are hereby accepted as fact.  \n \n2.  Claimant has met his burden of proving by a preponderance of the \nevidence that he is entitled to additional medical treatment in the \nform   of   surgery   to   his   low   back   as   recommended   by   Dr. \nBlankenship.  \n \n \n\nKINNE – H000742   2\n  \n \n \n3. Claimant’s attorney is entitled to attorney’s fees on temporary total \ndisability  benefits  previously  paid  to  Claimant  as  a  result  of  his \ncervical surgery.  \n \nWe  have  carefully  conducted  a de  novo review  of  the  entire  record \nherein and it is our opinion that the Administrative Law Judge’s May 11, 2023 \ndecision is supported by a preponderance of the credible evidence, correctly \napplies  the  law,  and  should  be  affirmed.  Specifically,  we  find  from  a \npreponderance of the evidence that the findings made by the Administrative \nLaw  Judge  are  correct  and  they  are,  therefore,  adopted  by  the  Full \nCommission.  \nWe  therefore  affirm  the  decision  of  the  Administrative  Law  Judge, \nincluding  all  findings  of  fact  and  conclusions  of  law  therein,  and  adopt  the \nopinion as the decision of the Full Commission on appeal.  \nAll accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \nFor prevailing on this appeal before the Full Commission, Claimant’s \nattorney  is  entitled  to  fees  for  legal  services in  accordance  with  Ark.  Code \nAnn.   §11-9-715   (Repl.   2012).   For   prevailing   on   appeal   to   the   Full \nCommission, the Claimant’s attorney is entitled to an additional fee of five \nhundred  dollars  ($500),  pursuant  to  Ark.  Code  Ann.  §11-9-715(b)(Repl. \n2012).  \n\nKINNE – H000742   3\n  \n \n \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \n \nCommissioner Mayton dissents \n \nDISSENTING OPINION \n \n      I respectfully dissent from the majority’s opinion.  In my de novo \nreview of the file in its entirety, I find that the claimant has not proven by a \npreponderance of the credible evidence that he is entitled to additional \nmedical treatment in the form of surgery to his low back as recommended \nby Dr. Blankenship.  I also find that Claimant’s attorney is not entitled to \nattorney’s fees on temporary total disability benefits previously paid to \nclaimant as a result of his cervical surgery.  \n           Claimant is a 50-year-old over the road truck driver for the \nrespondent employer.  On October 6, 2019, he suffered an admittedly \ncompensable injury to his neck and low back.  Claimant testified that on that \ndate he was walking on an uneven load, putting a tarp over the load, when \nhe slipped and fell, getting caught up in and hung from a rope, due to rain \nthat was falling. (Hrng. Tr., P. 6).  After the accident, claimant initially came \nunder the care of Dr. Berestnev who diagnosed claimant with a cervical and \n\nKINNE – H000742   4\n  \n \n \nlumbar strain.  (Cl. Ex. 1, Pp. 3-5).  He treated claimant with an injection of \nDepoMedrol. Id.  On a change of physician order, claimant began treating \nwith Dr. James Blankenship on June 22, 2020.  (Cl. Ex. 1, Pp. 47-52).  \n      The claimant requested a hearing on his entitlement to cervical spine \nsurgery as recommended by Dr. Blankenship and a pre-hearing conference \nwas held.  Prior to the hearing, respondents accepted liability for the \ncervical surgery.  (Resp. Ex. 2, P. 3).  Dr. Blankenship performed the \ncervical surgery on October 6, 2021, and according to Dr. Blankenship’s \nreports, the surgery was successful.  (Cl. Ex. 1, Pp. 76-79).  \n      After surgery, claimant continued to complain of low back pain.  In \nhis report of December 2, 2021, Dr. Blankenship indicated that claimant did \nnot want to consider surgery at that time but instead wanted to return to \nwork.  (Cl. Ex. 1, Pp. 89-93).  Claimant’s low back pain continued, and Dr. \nBlankenship ordered a new lumbar scan.  In his report of June 23, 2022, Dr. \nBlankenship stated that he discussed lumbar surgery with the claimant but \nbefore proceeding, recommended one last aggressive conservative \ntreatment trial consisting of a lumbar epidural steroid injection and an \naggressive physical therapy program.  (Cl. Ex. 1, Pp. 103-108).  In his \nreport of August 4, 2022, Dr. Blankenship indicated that the physical \ntherapy had aggravated claimant’s low back pain and stated that \nmedication had provided minimal relief.  He recommended a multilevel \n\nKINNE – H000742   5\n  \n \n \narthrodesis at L3-4, L4-5, and L5-S1.  (Cl. Ex.1, Pp. 110-114).  Conversely, \nin an IME report dated May 12, 2021, Dr. Frank J. Tomecek, stated that \nclaimant’s lumbar myelogram CT scan “showed minimal facet arthropathy \nat L4-5 and L5-S1. There were no fractures, no disk herniations, no neural \nimpingement, and no central or foraminal stenosis.  It was essentially a \nnormal myelogram for a 48-year-old male.” (Resp. Ex. 1, P. 16).  Dr. \nTomacek’s findings indicated that the claimant “has facet arthropathy that is \nmild . . . I do not believe that lumbar rhizotomy is reasonable or necessary \nin this patient . . . I definitely would not recommend this type of surgery on \nthis patient... I see no indication for surgery on his back.” (Resp. Ex. 1, P. \n17).  Accordingly, the respondents denied the claimant’s request for lumbar \nspine surgery. \n      It is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force.  Sheridan Sch. Dist. v. Wise, 2021 Ark. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness. Id.  However, the Commission has the authority to accept or \nreject medical opinions.  Williams v. Ark Dept. of Community Corrections, \n2016 Ark. App. 427, 502 S.W. 3d 530 (2016).  It is well settled in this State \nthat a medical opinion based on an unreliable history provided by a \n\nKINNE – H000742   6\n  \n \n \nclaimant should be disregarded.  Roberts v. Leo Levi Hospital, 8 Ark. App. \n184, 649 S.W.2d 402 (1983); see e.g.,Towery v. Hi-Speed Electrical Co., 75 \nArk. App. 167, 56 S.W.3d 391 (2001). \n      The claimant began treating with Dr. James Blankenship on June 22, \n2020 after a change of physician request was approved by the \nCommission.  (Cl. Ex. 1, Pp. 47-52).  At each visit, the claimant was given \nthe opportunity to report on his medical history.  Each visit, that history is \nlisted as “unremarkable.  Prior surgeries include bilateral carpal tunnel \nrelease, orthopedic surgery (knee) and lymphoid surgery” until the claimant \nunderwent surgery on his cervical spine with Dr. Blankenship on October 6, \n2021.  (Cl. Ex. 1, Pp. 48, 58, 67, 76).  Dr. Blankenship never reports any \nknowledge of the claimant’s relevant history of low back pain.  (Cl. Ex. 1, \nPp. 48, 58, 67, 76, 85, 90, 97, 104, 111).  At the April 12, 2023 hearing, \nclaimant testified that he never told Dr. Blankenship about his history of \nback problems. (Hrng. Tr., Pp. 15-16). \nQ (by Mr. Parrish):   You will agree with me \nunder medical history as far as what you \ndid or didn’t tell Dr. Blankenship, there is \nabsolutely no mention or documentation of \nyou ever having low back problems that \nrequired a TENS unit or any low back \nproblems that stopped you from working? \nA:   No, sir. \nQ:   So, every time we look at Dr. \nBlankenship’s medical history, there is \ngoing to be nothing there talking about any \nprior low back problems that he was aware \nof. Agree? \nA:   Yes. \n\nKINNE – H000742   7\n  \n \n \nQ:   And Dr. Blankenship operated under the \nunderstanding that you have never had \nany low back pain or radiating pain into \nyour right leg before.  Based on what we \nknow now, you will agree he would be \noperating with inaccurate or incomplete \ninformation; correct? \nA:   Yes. Id. \n \n      For this reason alone, we must disregard Dr. Blankenship’s \nrecommendation for lumbar surgery.  At the time Dr. Blankenship provided \nhis recommendation that the claimant undergo back surgery, he was not \narmed with the relevant facts concerning the claimant’s October 16, 2019 \ninjury and the claimant’s low back pain.  Because Dr. Blankenship’s opinion \nis unreliable, we can therefore only rely on the opinion of Dr. Frank \nTomecek who found that regarding the claimant’s lumbar spine, “he has \nfacet arthropathy that is mild . . . I do not believe that lumbar rhizotomy is \nreasonable or necessary in this patient . . . I definitely would not \nrecommend this type of surgery on this patient...I see no indication for \nsurgery on his back.” (Resp. Ex. 1, P. 17). \n      Arkansas Code Annotated § 11-9-508(a) states that an employer \nshall provide \"such medical . . . services . . . as may be reasonably \nnecessary in connection with the injury received by the employee. \" What \nconstitutes reasonable and necessary treatment under this section is a \nquestion of fact for the Commission.  Georgia Pacific Corp. v. Dickens, 58 \nArk. App. 266, 950 S.W.2d 463 (1997).  It is within the Commission's \n\nKINNE – H000742   8\n  \n \n \nprovince to weigh all the medical evidence, to determine what is most \ncredible, and to determine its medical soundness and probative force. \nSheridan Sch. Dist. v. Wise, 2021 Ark. App. 459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily disregard \nmedical evidence or the testimony of any witness.  Id.  However, the \nCommission has the authority to accept or reject medical opinions.  \nWilliams v. Ark Dept. of Community Corrections, 2016 Ark. App. 427, 502 \nS.W. 3d 520 (2016). \n      The claimant’s credibility as a witness is the key issue in determining \nwhether the lumbar surgery proposed by Dr. Blankenship is reasonable, \nnecessary, and causally related to the claimant’s October 16, 2019 injury. \nImportantly, a claimant’s testimony is never uncontroverted as a matter of \nlaw.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  \nIt is within the exclusive province of the Commission to determine the \ncredibility of a witness and the weight to be given to his testimony.  Wade v. \nMr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). \n      As seen above, the claimant has a history of omitting important facts \nor being outright untruthful in regard to the nature of his claim.  This can be \nseen throughout his medical records as well as his testimony at his \ndeposition which was inconsistent.  In November 2015, the claimant sought \ntreatment at Mercy Clinic in Rogers for complaints of low back pain \n\nKINNE – H000742   9\n  \n \n \nradiating into his right hip. (Resp. Ex. 1, P. 4).  At that time, Melanie Martin, \nAPRN opined that the claimant’s complaints likely originated “from heavy \nlifting and overuse,” and noted that the claimant requested a follow-up with \nneurology for imaging. Id.  In September 2016, the claimant again treated at \nMercy Clinic for complaints of right lumbar pain radiating to his right hip and \nfoot.  (Resp. Ex. 1, P. 7).  The claimant reported that this pain had begun \ntwo to three months prior and that he had tried a TENS unit at home with \nsome relief. Id. \n      Despite this history, when asked at his deposition whether, prior to \nthe work-related injury on October 6, 2019, he had a history of back pain, \nright lower lumbar pain radiating distal to his right foot...which caused him \nto stop driving and use a TENS unit to relieve the pain, the claimant \nresponded, “No, sir, I didn’t recall.” (Hrng.Tr. P. 14).  At the hearing, the \nclaimant testified: \nQ (by Mr. Parrish):   Mr. Kinne, you told me at \nyour deposition that you never had any \ninjury, problem, symptom or condition in \nyour low back before October 6, 2019. \nYou admit that; right? \nA:     Yes. \nQ:    And it was true testimony? \nA:     Yes, at the time, I thought, you know, I \ndidn’t remember anything before then. \nQ:    Okay. There are other instances in the \ndeposition where you give me that \nanswer. You tell me you don’t remember \nsomething, or you don’t recall. You’ll \nagree with that, right? \nA:     Yes. \n\nKINNE – H000742   10\n  \n \n \nQ:    That is not what you did when I asked you \nthis specific question about a specific \nbody part that is, in fact, in litigation here \nwhether you had any prior problems with \nyour low back before October 6, 2019. \nYou specifically answered me “no”; right? \nA:     I guess. \nQ:    And you remember me at the beginning of \nthe deposition telling you if you didn’t \nunderstand a question or you needed \nclarification on a question that you were to \nstop me and let me know? \nA:     Yes. \nQ: And you didn’t indicate any confusion or \nhesitancy or equivocate at all in telling me \nflatly, “no;” did you? \nA:     No. \nQ:    So, if I walked out of that deposition and \ndidn’t do my homework and get your \nmedical records and I based what I \nbelieved on what you told me, my \nunderstanding would be that there was no \nmedical history of any back problems \nbefore this accident; wouldn’t it? \nA:     Yes.  (Hrng. Tr, Pp. 12-14). \n \nOnce again, the claimant’s lack of credibility leads us to rely on the \nmedical evidence alone.  AN MRI conducted on September 18, 2020 \nrevealed: \n(1) Lumbosacral disk protrusion with annular \nfissuring with midline disk bulging with marked \nfacet arthropathy.  (2) Milder changes at the \nL4-5 level with significant arthropathy.  (3) \nBilateral lateral recess stenosis with midline \ndisk bulging at L3-4.  (4) Multilevel facet \narthropathy as described in the narrative.  (Cl. \nEx. 1, Pp. 55-56). \n \n      A later MRI of the claimant’s lumbar spine conducted on May 20, \n2022 reflected additional changes, including “a right foraminal disk bulge \neffaces, without displacing, the foraminal aspect of the exiting right L3 nerve \n\nKINNE – H000742   11\n  \n \n \nroot” and a “tiny central disk protrusion.” (Cl. Ex. 1, P. 102).  Mild disk \nbulging and facet joint arthropathy at L4-L5 and L5-S1 mildly narrow the left \nneural foramen at L4-L5 and mildly to moderately narrow the right neural \nforamen at L5-S1.” Id. Dr. Blankenship would later characterize these \nresults as \nRight-greater-than-left foraminal stenosis at the \nlumbosacrum with severe facet arthropathy.  \nHe has significant arthropathy with mild \nbilateral stenosis at L4-L5 and has an extreme \nlateral disc herniation on the right hand side at \nL3-L4. (Cl. Ex. 1, P. 106). \n \n  In contrast, upon reviewing the claimant’s records from Dr. Frank J. \nTomecek, a lumbar myelogram CT scan from May 2021 showed \n“minimal facet arthropathy at L4-5 and L5-S1. \nThere were no fractures, no disk herniations, \nno neural impingement, and no central or \nforaminal stenosis. It was essentially a normal \nmyelogram for a 48-year-old male.”  (Resp. \nEx. 1, P. 16). \n \n      Although it has been previously established that Dr. Blankenship’s \nrecords should be disregarded due to the claimant’s untruthful medical \nhistory, it is also important to note the vast distinction between Dr. \nBlankenship’s 2022 MRI findings and Dr. Tomecek’s 2021 report.  The 2022 \nMRI findings indicate significant changes from the earlier MRI in 2020.  Dr. \nBlankenship indicates “severe herniation” at L3-L4 that was not noted \npreviously with additional disk protrusions and annular fissuring.  (See Cl. \nEx. 1, Pp. 55-56, 102, 106).  These findings completely differ from Dr. \n\nKINNE – H000742   12\n  \n \n \nTomecek’s findings that the myelogram CT of claimant’s lumbar spine was \n“essentially normal.”  Dr. Blankenship makes no effort to explain these \nextreme changes over the course of two years and how they may be related \nto the claimant’s 2019 injury, and this alone indicates that his findings are \nunreliable.  Without more, it is not possible to attribute changes that appear \nthree years after an injury to that injury, and there is no medical opinion that \neven attempts to do so.  Without more, we are left to rely on the claimant’s \nown testimony regarding the source and extent of his pain.  Given the \nnature of claimant’s unreliable testimony, we are simply unable to say that \nhe has established by the preponderance of the evidence that his low back \npain was caused by the 2019 injury, exacerbated by it, or that any related \ntreatment is reasonable and necessary in relation to that injury. \n      Arkansas Code Annotated §11-9-715 provides that attorney’s fees \n“shall be allowed only on the amount of compensation for indemnity benefits \ncontroverted and awarded.”  In this matter, the question of fees specifically \nregards whether the cervical spine surgery conducted by Dr. Blankenship \nwas controverted.  There have been two pre-hearing orders issued in this \nmatter, the first of which listed the sole issue for litigation as “Claimant’s \nentitlement to surgery as recommended by Dr. Blankenship.” There was no \nmention of disability benefits or attorney’s fees in that order. \n\nKINNE – H000742   13\n  \n \n \n      While the ALJ contends that the respondent employer initially denied \nthe surgery leading the claimant to request a hearing, it is clear that any \ndelay in approving this surgery was in the course of investigating the \nclaimant’s original claim.  The respondents coordinated with Dr. Frank \nTomecek for an IME which took place on May 12, 2021. (Resp. Ex, 1, Pp. \n1-18). The respondents received Dr. Tomecek’s report on May 20, 2021 \nand approved the claimant’s surgery on May 25, 2021. (Resp. Ex. 2, P. 3). \nSubsequently, the ALJ cancelled the hearing on this issue.  Once surgery \ntook place, the respondents did not deny claimant’s entitlement to \ntemporary total disability benefits and paid them accordingly, and the issue \nof disability benefits was never litigated. \n      There is simply no statutory rational for granting the claimant \nattorney’s fees for an issue in which neither controverted nor litigated.  The \nrespondents investigated the nature of claimant’s allegations and acted \nswiftly to pay appropriate benefits once their investigation was completed \nand the claimant is, therefore, not entitled to attorney’s fees on the disability \nbenefit paid as a result of the cervical surgery.  Accordingly, for the reasons \nset forth above, I respectfully dissent. \n \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":19590,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H000742 DANIEL R. KINNE, EMPLOYEE CLAIMANT CENTRAL STATES MFG., INC., EMPLOYER RESPONDENT SENTRY INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 4, 2023","outcome":"granted","outcomeKeywords":["granted:2","denied:2"],"injuryKeywords":["back","cervical","neck","lumbar","strain","carpal tunnel","knee","hip"],"fetchedAt":"2026-05-19T22:29:46.105Z"},{"id":"alj-H301142-2023-10-04","awccNumber":"H301142","decisionDate":"2023-10-04","decisionYear":2023,"opinionType":"alj","claimantName":"Eden Ballew","employerName":"Natural Relief Dispensary","title":"BALLEW VS. NATURAL RELIEF DISPENSARY AWCC# H301142 OCTOBER 4, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BALLEW_EDEN_H301142_20231004.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BALLEW_EDEN_H301142_20231004.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H301142 \n \n \nEDEN BALLEW, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nNATURAL RELIEF DISPENSARY,   \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nBENCHMARK INSURANCE COMPANY, \nINSURANCE COMPANY                                                                                      RESPONDENT  \n \nGRAND RIVER SERVICES, \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED OCTOBER 4, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, did not attend the hearing.  \n \nRespondents  represented  by  the  Honorable  Karen  H.  McKinney,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A  hearing  was  held  on  September  20,  2023  in  the  present  matter  pursuant  to  Dillard  v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), for a determination \nof  whether  the  above-referenced  case  should  be  dismissed  for  failure  to  prosecute  under  the \nprovisions of Ark. Code Ann. §11-9-702 (Repl. 2012) and/or Arkansas Workers’ Compensation \nCommission Rule 099.13.  \nAppropriate Notice of this hearing was provided to all parties to their last known address, \nin the manner prescribed by law.   \nThe record consists of the transcript of the September 20, 2023, hearing and the documents \nretained  therein.  The  entire Commission’s file was  also  made  a  part  of  the  record.    It  is  hereby \n\nBallew – H301142 \n \n2 \n \nincorporated  into  the  hearing  transcript  by  reference.    Moreover,  the  Respondents  offered  one   \nexhibit into evidence, consisting of five pages.  It has been marked as Respondents’ Exhibit 1.   \nProcedural History \n On  February  20,  2023,  the  Claimant  filed  with  the  Commission  a  claim  for  Arkansas \nworkers’ compensation benefits by way of a Form AR-C.  The Claimant asserted that she sustained \ncompensable  injuries  on  January  14,  2022,  while  performing  her  employment  duties  for  the \nrespondent-employer.  She asked for both initial and additional workers’ compensation benefits.  \nIn fact, the Claimant checked all the boxes for every benefit allowed under the law in connection \nwith this claim.  Per the Form AR-C, the Claimant’s accidental injury occurred as follows: “After \nfainting  and  losing  consciousness  at  work,  I  was  transported  to  a  local  hospital  ER  for  medical \nattention to be examined for injury.  I received a diagnosis of syncope and received medications \nfor it.”  \n The claims adjuster filed a  Form AR-2  with the  Commission on  February 28, 2023.  At \nthat time, the carrier denied the claim.  Per this document, the adjuster’s statement of position for \ncontroverting the claim included the following grounds: “Claim has been denied.  The Claimant \nwas standing at a meeting when she passed out due to an idiopathic condition.  She was caught by \nanother employee and lowered to the ground.”     \n Subsequently, there was no action taken by the Claimant to resolve her claim, and nor did \nshe request a hearing.   \nTherefore, the Respondents filed a Respondents’ Motion to Dismiss with the Commission \non  August  1,  2023.   The Respondents’  motion  for  dismissal  included  a  certificate  of  service   \nconfirming that they provided a copy of the above pleading to the Claimant by mailing a copy of \nit to her.  \n\nBallew – H301142 \n \n3 \n \nOn  August  2,  2023,  the  Commission  sent  a  letter-notice to  the Claimant’s last  known \naddress  via  first-class  and  certified  mail.  Per  this  correspondence,  the  Commission  gave  the \nClaimant a deadline of twenty days, for filing a written response to the Respondents’ motion. \nThere was no response from the Claimant.  However, information received from the United \nStates Postal Service shows that the notice was delivered to the Claimant’s residence and left with \nan individual on August 4, 2023.  The return receipt bears the Claimant’s signature.     \nYet, there was no response from the Claimant.  \nTherefore, pursuant to a Notice of Hearing mailed on August 22, 2023, the Commission \nnotified the parties that a hearing had been scheduled in this matter to address the Respondents’ \nmotion for dismissal of this claim for failure to prosecute it.  The notice was mailed to the Claimant \nvia  first-class  and  certified  mail.    Said  hearing  was  scheduled  for  September  20,  2023,  at  the \nCommission in Little Rock.  \nThe hearing notice that the Commission  sent to the Claimant via first-class mail has not \nbeen  returned  to  the  Commission.    However,  the  copy  of  the  notice  sent  via  certified  mail  was \nreturned to the Commission marked “Return to Sender ‘Unclaimed’ Unable to Forward.”  Based \non the foregoing, I am convinced the Claimant received proper notice of the dismissal hearing.        \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nof  this  claim  due  to  a  lack  of  prosecution  as  scheduled.  Yet,  the  Claimant  did  not  attend  the \nhearing.  However, the Respondents appeared through their attorney.   \nThe Respondents’ attorney noted that it has been more than six months since the filing of \nthe  Form  AR-C,  but  the  Claimant  has  not  requested  a  hearing.    Therefore,  counsel  essentially \nmoved  that  pursuant  to  Ark.  Code  Ann.  §11-9-702  and/or  Rule  099.13  the  claim  be  dismissed \nwithout prejudice for failure to prosecute it. \n\nBallew – H301142 \n \n4 \n \n        Discussion \nThe Claimant has not requested a hearing since the filing of the Form AR-C in February \n2023.  Hence, more than six months have passed since the filing of this claim for compensation \nand no bona fide request for a hearing has been  made  with respect to it.  The record before me \nproves  that  the  Claimant  has  failed  to  promptly  prosecute  her claim for workers’ compensation \nbenefits.  More importantly, the Claimant did not appear at the hearing to object to her claim being \ndismissed.    Hence,  the  evidence  before  me  preponderates  that  the  Claimant  has  abandoned  her \nclaim for workers’ compensation benefits.  \nTherefore, pursuant to Ark. Code Ann. §11-9-702 and Rule 099.13, I find that this claim \nshould be and is hereby respectfully dismissed, without prejudice, to the refiling of it within the \nlimitation period specified by law.   \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim due to a lack of prosecution of it by the Claimant, for which a hearing \nwas held. \n \n3. The Claimant has not requested a hearing since the filing of her Form AR-\nC  in  February  2023,  which  was  more  than  six  months  ago.  Hence,  the \nevidence preponderates that the Claimant has failed to prosecute her claim \nfor workers’ compensation benefits.      \n \n4. Appropriate notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion for dismissal of this claim for failure to prosecute \nit is hereby granted, without prejudice, per Arkansas Code Ann. §11-9-702 \n\nBallew – H301142 \n \n5 \n \nand Rule 099.13, to the refiling of it within the limitation period specified \nby law.  \n \nORDER \nFollowing the findings of fact and conclusions of law set forth above, this claim is hereby \ndismissed per Arkansas Code Ann. §11-9-702 and Rule 099.13, without prejudice, to the refiling \nof it, within the limitation period specified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":8448,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H301142 EDEN BALLEW, EMPLOYEE CLAIMANT NATURAL RELIEF DISPENSARY, EMPLOYER RESPONDENT BENCHMARK INSURANCE COMPANY, INSURANCE COMPANY RESPONDENT GRAND RIVER SERVICES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED OCTOBER 4, 2023 Hearing held before Adm...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:01:13.789Z"},{"id":"alj-G808579-2023-10-04","awccNumber":"G808579","decisionDate":"2023-10-04","decisionYear":2023,"opinionType":"alj","claimantName":"Jurmicka Puckett","employerName":"Ar. Dept. Of Corrections","title":"PUCKETT VS. AR. DEPT. OF CORRECTIONS AWCC# G808579 OCTOBER 4, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PUCKETT_JURMICKA_G808579_20231004.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PUCKETT_JURMICKA_G808579_20231004.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G808579 \n \nJURMICKA PUCKETT, EMPLOYEE       CLAIMANT \n \nAR. DEPT. OF CORRECTIONS, EMPLOYER          RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, TPA         RESPONDENT \n \n \nOPINION FILED 4 OCTOBER 2023 \n \n \nOn  hearing  before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, 13 April 2023, Pine Bluff, Jefferson County, Arkansas. \n \nMr. Andy L. Caldwell, Attorney-at-Law of Little Rock, appeared for the claimant. \n \nMr. Charles H. McLemore, Attorney-at-Law of Little Rock, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 13 April 2023 in Pine Bluff, Arkansas, after \nthe  parties  participated  in  a  prehearing  telephone  conference  on 24 January 2023. A \nPrehearing Order, admitted to the record without objection as “Commission’s Exhibit No 1,” \nwas  entered  on 25  January  2023. The  Order  stated  the  following ISSUES  TO  BE \nLITIGATED: \n1.    Whether   the   claimant is   entitled   to   additional medical   treatment and   pain \nmanagement. \n \n2. Whether the claimant is permanently and totally disabled. \n \n3. Whether, in the event that the claimant is not entitled to permanent and total disability \nbenefits, the  claimant  is otherwise entitled  to  benefits  under  Ark.  Code  Ann.  §11-9-\n505(a)(1). \n \n4.  Whether the claimant is entitled to corresponding attorney’s fees. \n \nAll other ISSUES were reserved. \n\nPUCKETT – G808579 \n \n2 \n \nOn  the  day  of  the  hearing,  the  parties  discussed  (as  noted  below  in  Section  III)  an \nAmended Prehearing Questionnaire Response that the claimant attempted to provide for the \npurpose  of  narrowing  the  issues before  the  Commission, better  reflecting  the  remaining \nissues since  the  filing  of  her  initial  Prehearing  Questionnaire  Responses. That  Amended \nResponse was admitted to the record as “Claimant’s Exhibit No 3”. The respondents sought \nand  were  granted  leave  to  file  an  updated Response in light of the claimant’s Amended \nResponse.  That  Response  was  tendered  on  13  April  2023  and  appears  in  the  record  as \n“Respondents’ Exhibit No 3.”  \nI found that it was in the best interest of the parties to proceed with the hearing in \nthe framing of the Amended Questionnaire Responses. Thus, the ISSUES addressed at the \nhearing, which were not inconsistent with the language of the Prehearing Order, but rather \nan extension of the issues presented therein, were: \n1. Whether the claimant was entitled to additional PPD for RSD/CRPS. \n2. Whether the claimant is permanently and totally disabled. \n3. In  the  event  that  the  claimant  is  not  entitled  to Permanent  and Total Disability \nbenefits, whether the claimant is otherwise entitled to benefits under Ark. Code Ann. §11-9-\n505(a)(1). \n4. Whether the claimant is entitled to additional medical treatment, specifically related \nto ongoing  care  from  her  PCP  Dr.  Robert  Scott,  a  neurology  consult,  and  a  referral  by  Dr. \nBrent Walker to UAMS for consideration of a Spinal Cord Stimulator. \n5. Whether the claimant is entitled to attorney’s fees. \nAll other ISSUES were, again, reserved. \nThe Prehearing Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n\nPUCKETT – G808579 \n \n3 \n \n2.    An  employee/employer/carrier  relationship  existed between  the  parties  on  26 \nDecember  2018  when  the  claimant  sustained  an  injury  to  her  right  hand,  which  the \nrespondents accepted as compensable. \n \n3.    The claimant’s average weekly wage was $828.67, entitling her to temporary total \ndisability  and  permanent  partial  disability  in  the amounts  of  $552.00 and  $414.00, \nrespectively. \n \nThe claimant was the sole WITNESS at the hearing. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated by reference into the Prehearing Order.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving  reviewed  the  record  as  a  whole  and  having  heard  testimony  from  the  witness, \nobserving her demeanor, I make the following findings of fact and conclusions of law under \nArk. Code Ann. §11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The claimant is not entitled to additional PPD for RSD/CRPS. \n \n3. The claimant has not proven that she is permanently and totally disabled. \n \n4. The claimant has not proven entitlement to additional benefits under Ark. Code Ann. \n§11-9-505(a)(1). \n \n5. The claimant is entitled to additional treatment associated with the referral to UAMS \nordered by Dr. Walker for consideration of a Spinal Cord Stimulator. The respondents, \nhowever, are not liable for the claimant’s past treatment from Dr. Scott. \n \n6. No attorney’s fee is associated with these findings. \n \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE   \n Before the claimant testified on her own behalf, the parties discussed on the record an \namendment to the claimant’s prehearing questionnaire response  that  was  represented  as \nsent on 24 January 2023, the day of the phone conference, but not received by the Commission \nor by the  respondents’  counsel.  That amended response was  entered  on  the  record as \n“Claimant’s Exhibit No 3” and, essentially, clarified the relief sought by the claimant. [TR at \n\nPUCKETT – G808579 \n \n4 \n \n5-9].  After a short break off the record, during which the parties checked correspondence for \nthe  amended  responses,  the  proceedings  continued.  An equipment malfunction  resulted  in \npart of that back-on-the-record discussion not being captured for transcription. [TR at 9.] The \nparties  were  unaware  of  this  at  the  time,  and  the  transcript  reflects  the  end  of  that \npre-testimony  discussion  on  the  framing  of  the  issues,  relief  sought,  and  anticipated \ntestimony and argument. [TR at 9-12.] After the parties’ exhibits were marked and admitted \non the record, the claimant was sworn and her testimony began without further incident. [TR \nat 16.]                                                                                                      \nA. Claimant on Direct-Examination  \nJurmicka Puckett is a 40-year-old high school graduate with some college credit from \nthe University of Arkansas at Pine Bluff. [TR at 18.] Her employment history includes line \nwork  at  a  fish  market  and  at  Tyson.  She  began  working  for  the  Arkansas  Department  of \nCorrection (ADC) in 2004 as an entry-level corrections officer or CO I. [TR at 19.] She later \npromoted to the rank of CO II or corporal. [TR at 20.] \nExplaining her 26 December 2018 injury, she stated that another officer’s rolling chair \nmoved  out  from  under  or  around  her,  causing  her  to  fall  and  catch  herself  with  her  right \nhand.  [TR at 20-21.]  She  immediately  reported  the  injury  and  sought  treatment  at  \nMed-Express, per her employer’s direction. A  nurse  practitioner  saw  her,  assessed  a  wrist \nsprain and median nerve injury at the wrist and hand level, and entered a referral for “Any \nNeurology.” [Resp. Ex. No 1 at 4.] The claimant was eventually scheduled at OrthoArkansas, \nwhere Dr. Brian Norton saw her. [TR at 21.]  \nAccording to the claimant, she underwent X-ray and MRI scans in the next several \nweeks, with the ganglion cyst believed to be the cause of her unresolved pain. [TR at 22.] Her \npain persisted after an initial surgery on 29 April 2019. [TR at 23.] She stated that she was \nreleased  back  to  work  in  August  of  2019,  but  that  she  voluntarily  demoted  to  an \n\nPUCKETT – G808579 \n \n5 \n \nAdministrative Specialist role, consistent with a Demotion Acknowledgement form dated 11 \nJuly 2019, prior to actually returning to the workplace. [TR at 24; Cl. Ex. No 2 at 18.] The \nclaimant continued working until 3 January 2021. [TR at 25.] She stated that she quit work \nbecause, “I was still having issues with my wrist and I was dropping things....” Id. \nThe claimant testified that she presented for a second surgery on 4 January 2021, the \nday after her last day worked at ADC. She has not worked there since. Id. Nor has she worked \nelsewhere. [TR at 26.] She said that the second surgery left her in more pain than the first \none. Physical therapy was ordered, and she stated that a third surgery was planned because \nshe could not achieve strengthening in therapy because her wrist was “still in pain, and it \nwas stiff and swollen.” Id.  \nA third surgery occurred on 12 May 2021, and when asked if that procedure helped, \nshe responded, that it did not. Per her understanding of Dr. Brent Walker’s impression, she \nnow  has  complex  regional  pain  syndrome  or  CRPS  in  her  wrist.  [TR  at  27.] The  claimant \nstated  that  Dr.  Norton  referred  her  to  Dr.  Walker  and  sent  her  for  a  Functional  Capacity \nEvaluation (FCE). Id. She testified about performing her best effort at the FCE, but that she \nsought Dr. Norton’s care again immediately after the testing because of pain and swelling in \nher  hand.  She  appeared  to  claim  that  around  that  time  she  also  experienced  or  began \nexperiencing “aching that goes up the arm.” Id. Dr. Norton, she said, referred her back to Dr. \nWalker, whom she last saw in July of 2022. [TR at 28.] \nAccording to the claimant, Dr. Walker advised that a spinal cord stimulator was the \n“only other option... because it was at its chronic state.” Id. The respondents did not authorize \nimplantation of the stimulator. Nor did they authorize additional treatment from that point. \nShe stated, however, that her pain and problems with her right hand persist and that she \npresents at various times to her neighborhood clinic for ice packs. Id. \n\nPUCKETT – G808579 \n \n6 \n \nSince Dr. Walker’s care ended, she has seen and continues seeing her PCP, Dr. Robert \nScott at  the  Daughters of  Charity clinic.  [TR  at  29.] She said that Dr.  Scott  is prescribing \nGabapentin tablets and Diclofenac ointment for her wrist and hand. [TR at 30.] The claimant \nsaid she avoids taking Gabapentin if she knows she is going to be driving; it makes her dizzy \nand drowsy. Otherwise, she takes it three (3) times daily. According to the claimant, Dr. Scott \nhas restricted her from working with her right hand. Id. \nMs. Puckett applied for unemployment benefits, but that was denied. [TR at 32.] She \nalso applied for Social Security Disability (SSD) and listed an arm injury, diabetes, high blood \npressure, and high cholesterol as her disabling conditions. That application was also denied, \nbut she stated that she is appealing that denial and adding vertigo to her list of conditions. \nId.  She stated that she would like to return to work, but that she “can’t do the job essential \nfunctions that I require.” [TR at 33.] Explaining further, she said: \nJust any kind of motioning of the hand, any kind of rotating, pulling, \nany kind of—even trying to write with the right hand, it’s just, I no longer can \njust do it. I’m learning to write with the left hand... any kind of rotating the \nwrist causes pain up the arm.  Id. \n  \n She  wears  a  brace  or  splint  with  a  cushion  that  extends  up  her  forearm  that  was \nprescribed  by  Dr.  Norton.  [TR  at  34-35.]  When  she  experiences  discomfort  or  pain,  the \nclaimant  applies  cold  or  heat,  tries  massage  and  more  Gabapentin,  or  she  presents  to  the \nclinic where they apply cold packs and wrapping from the wrist up her arm. She opined that \nshe cannot do any of the jobs she previously worked because she cannot write or type, pick \nup boxes or books, or push buggies. [TR at 36.] She also believes that she could not perform \nwork while taking Gabapentin because of the drowsiness she experiences with it. [TR at 37.] \nMs. Puckett stated that she can drive to Dr. Scott’s clinic because it is not far away from her \nhouse. Still, she tries to avoid the medication if she will be driving. [TR at 38.] If she presents \n\nPUCKETT – G808579 \n \n7 \n \nto the clinic in pain and not having already taken Gabapentin, she may receive a Tramadol \ninjection that Medicaid pays for. [TR at 38.] \n B.  Transcription Issue \n At the conclusion of Ms. Puckett’s testimony on direct-examination, the parties briefly \nwent off the record. [TR at 39.] During the break the Court Reporter found an earlier problem \nwith the recording equipment left part of the pre-testimony discussion out of the record. See \nabove. The narrative around that issue and the parties’ opportunity to relay information or \nargument related thereto appear in the Transcript between pages 39 and 43. As noted above, \nthe parties were discussing claims and positions, but no witness testimony or evidence was \nlost. The actual presentation of the witness’ evidence was not impacted, and neither party \nmoved for any dispositive action based on the malfunction. \nC.  Claimant on Cross-Examination by Mr. McLemore \nIn response to a question by counsel, the claimant explained that she chose to wear a \ncushion around her waist to help keep her splint and wrist propped up and that the cushion \nwas not prescribed by a physician. [TR at 43.] \nThe claimant agreed that the records reflected that while she was out on FMLA, she \ninterviewed for and received a promotion from Mail Room Services Coordinator to Mail Room \nSupervisor. [TR at 46; Cl. Ex. No 2 at 9-13.] She stated that she, however, did not return to \nwork as the mail room’s supervisor [TR at 46.] Ms. Puckett also acknowledged that she signed \nfor a Form AR-N after reporting her injury. [TR at 47.] \nThe claimant acknowledged that the Nerve Conduction Study performed in June of \n2022 was reported by Dr. Rodrigo Cayme as “within normal limits, with no evidence of right \nmedian or ulner mononeuropathy.” [TR at 49.] She discussed her other, pre-existing health \nconditions  and  some  complications  related  to  managing  or  treating  those  conditions. \n\nPUCKETT – G808579 \n \n8 \n \nAccording  to  the  claimant,  she intends\n1\n for  a  neurologist  to  see her about  headaches  she \nattributes to her wrist or hand pain and for the vertigo she was experiencing. [TR at 52-53.] \nMs.  Puckett  denied  any  relief  from  any  surgery  or  from  Dr.  Walker’s intervention: \n“I’ve gotten no relief.” [TR at 54.] And she stated that she cannot write with her right hand. \nId. Despite her discomfort, she offered that she performed her best at the FCE. [TR at 55.] \nDiscussing the  various medications she  had  been  prescribed  or  tried  at  one  time  or \nanother, the claimant said that she told Dr. Walker that Gabapentin made her sleepy and \ndizzy. [TR at 59.] She disagreed with Dr. Walker’s 15 September 2021 note stating that she \nreported not being able to take Gabapentin due to severe nausea and vomiting. See Resp. Ex. \nNo 1 at 73. She testified, instead, that Amitriptyline made her sick, not Gabapentin. [TR at \n59.] \nThe  claimant  denied  seeing  Dr. Norton  again after  the  FCE,  but  she  did  see  Dr. \nWalker, who ordered stellate ganglion blocks. Dr. Walker then released her on 28 October \n2021. [TR at 62-63.] She said that her employment terminated on 29 October 2021. She said \nthat  she  continues  seeking  treatment  for  resolution  of her symptoms. Dr. D’Orsay Bryant \nsaw  her  and  ordered  an  X-ray,  but  did  not recommend  surgery  at  the  time.  At  some  point \nthereafter, she saw Dr. Baskin on her own. [TR at 64.] She denied being ready to go back to \nwork at or around that time because she had not been released by her PCP, Dr. Scott, whom \nshe  said  she  saw immediately  after  her  injury  occurred.  The  claimant  testified  that  she \ncontinued  seeing  Dr.  Scott  for  her  injury  at  the  same  time  she  was  seeing  Drs.  Norton, \nWalker, and Bryant. [TR at 65.] \nRegarding  her  returning  to  work,  Ms.  Puckett  said  that  she  called  someone  after \ncompleting the FCE to ask about jobs within her restrictions. [TR at 66.] “I asked her, ‘Did \n \n1\n At the time of the hearing, the claimant indicated a neurology appointment was already scheduled \nfor 11 June 2023. [TR at 53.] \n\nPUCKETT – G808579 \n \n9 \n \nthey find any job that was within my restrictions?’ and she said, ‘No.’ The only thing that she \nsaying was, ’25 pounds,’ but they already terminated my position.” Id.  She  acknowledged \nreceiving  a  letter  from  Rebecca  Thomas  dated  14  January  2022,  but  denied  (as  was \napparently offered to her in the letter) meeting with Ms. Thomas to discuss returning to work. \n[TR at 67.] She was asked again and verified that she did not meet or contact her employer \nabout returning to work around that time or after the 14 January 2022 letter. \nThe  claimant  testified  that  she  wanted  to  go  back  to  work  in  October  of  2021,  but \n“could not go back” when ADC was seeking to bring her back in January. \nQ:  But January the 14\nth\n of 2022, you did not want to go back? \n \nA:    I  could  not  go  back,  due  to  I  had  went  to  the  doctor  to  get – \nunderstand things had progressed, things had changed, and I had been going \nto Dr. Robert Scott. My doctor had been following up with me versus the other \ndoctors  really  not  following  up,  basically, saying that I met MMI. There’s \nnothing else they could do for me. From a surgical standpoint, I was as good as \nI was going to get. So I followed up with my doctor, Robert Scott, because I’m \nstill  having  the  same  issues,  still  having  the  same  problems.  And  once  he \nevaluated me and seen the issues or whatever, to seeing whatever records that \nhe has; so it won’t be hearsay, he advised that I was not to return to work. \n \nQ:  So between October and January, what changes is your advice from \nyour family doctor not to work? \n \nA:  Not to work. That’s according to Robert Scott. \n \nQ:  Okay. Who you’ve been seeing all along, while you had seen Dr. \nNorton, Dr. Walker, and Dr. Bryant? \n \nA:  Yes, because I hadn’t received any medical treatment prior to – I \nmean, after the accident.  [TR at 68-69.] \n \n The claimant went on to say that she is not seeking any employment, although she \napplied for  a  job  at Dollar General,  as  part  of her  unemployment  application  process,  that \nshe admits was outside of her physical abilities. [TR at 69.] Her unemployment application \nwas denied, and she filed for Social Security Disability sometime in January of 2022. [TR at \n70.] \n\nPUCKETT – G808579 \n \n10 \n \n According to the claimant, she saw Dr. Norton again in May of 2022, after seeing Dr. \nBaskin.  Dr.  Norton,  she  said,  referred  her  back  to  Dr.  Walker. Id.  She  recalled  the  nerve \nconduction study performed in June of 2022 and following up with Dr. Norton afterwards. \nDr.  Norton  also  ordered  a  bone  scan,  after  which  he  saw  her  one  more  time  without \nrecommending further treatment or intervention. [TR at 71.] She then saw Dr. Walker again, \nand he did not prescribe any medication. The claimant said that “the only other option I had \nwas to have a stimulator,” which “should be able to help with the pain.” [TR at 72.] She has \nnot  seen  Dr.  Walker  since  that  visit.  Dr.  Scott  is  the  only  physician  who  has  followed  her \nsince then.  \n Ms.   Puckett   confirmed   that   she   is   not   currently   looking   for   work   at   the \nrecommendation of Dr. Scott, because her wrist is “at its fracturing point” and “can be easily \nfractured just getting a little bump.” So she mostly spends her time at home. [TR at 75.] \nD.  Claimant on Additional-Examination \nThe  claimant  addressed  additional  questions  again  about  prescription  medications \nand  treatments  that  she  found  unhelpful.  She  said  that her  PCP, Dr.  Scott, continues  to \nprescribe her Gabapentin and that he thinks she should see a neurologist. [TR at 82.] \n E.  Medical Evidence \n Ms. Puckett first sought treatment on for her wrist 26 December 2018, the day she \nwas  injured. See, [Cl. Ex. No 1 at 1-6.] The  provider  assessed  an  unspecified  sprain  with \nnegative X-ray findings. She was taken off work with a follow-up scheduled for a few days \nlater. The claimant presented again on 28 December 2018, complaining of throbbing pain. Id. \n[at 7-10.] She was assessed with a median nerve injury at the wrist, continued off work, and \nreferred to a specialist. \n\nPUCKETT – G808579 \n \n11 \n \n The claimant then presented to Dr. Brian Norton\n2\n on 11 January 2019. He assessed \nher pain as possibly due to a ligament or tendon injury versus a contusion and ordered an \nMRI. Id. [at 17.] She saw Dr. Norton again, and his 8 February 2019 encounter note states \nthat  the  MRI  revealed  a  ganglion  cyst,  which  he believed  was  likely  related  to  her  work \ninjury. Excision was discussed and scheduled. Id. [at 18.] The MRI did not reveal any acute \nor suspicious findings in the claimant’s hand. Id. [at 22-23.] \n Dr. Norton removed the cyst on 29 April 2019 without complication. Id. [at 25.] She \nfollowed up with him on 15 May 2019, when he ordered the initiation of occupational therapy \nand  authorized  her  return  to  work  that  day  with  a  five-pound  pushing/pulling/lifting \nrestriction  for  her  right  hand. Id. [at  27-33.] Due  to  some apparent  confusion  about \nscheduling, she did not begin a regular course of therapy appointments until 10 June 2019. \nId. [at 34.[ Ms. Puckett followed up with Dr. Norton’s physician assistant Jenna Pardoe on \n19 Juley 2019. Id. [at 69-74.]  The encounter note indicates she was improving, should follow \nup  again  in  a  month,  and was  to  return  to  work  with  a  15-pound  pushing/pulling/lifting \nrestriction for her right hand.  \n Ms.  Puckett  saw  Dr.  Norton  again  on  6  August  2019,  when  she  complained  of \ncontinuing pain and popping in her wrist. He ordered another MRI for further evaluation of \nthe  wrist  and  placed  her  on  a  20-pound  restriction. Id. [at  78-83.] The  claimant  was  seen \nagain on 10 September 2019. Id. [at 84-87.]  The MRI revealed no new abnormality. The note \nindicates  no  significant  pain,  but referenced additional  treatment  options should  the  need \narise. The note further reflects “no impairment per exam today.” She was placed at MMI and \nreleased to work without restrictions at full duty, with follow up on an as-needed basis. Id. \n[at 85.] \n \n2\n According to the OrthoArkansas website, Dr. Norton is an orthopaedic surgeon specializing in hand \nand upper extremity surgery. See https://www.orthoarkansas.com/briandnortonmd. \n\nPUCKETT – G808579 \n \n12 \n \n After about a year, Ms. Puckett presented to Dr. Norton’s clinic again on 1 September \n2020 with continued complaints of pain and popping in her right wrist. See,  [Resp. Ex. No 1 \nat 22.] An MRI was ordered, and her work status was continued at full duty. Id. [at 24.] The \n7 October 2020 MRI revealed no ganglion recurrence, but some synovitis. Id. [at 25-28.] Dr. \nNorton consulted with her on treatment options and performed a steroid injection that day. \nShe was instructed to monitor her blood sugar and to follow up on 18 November 2020. \n The   claimant   returned   for   the   November   appointment   and   reported some \nimprovement  with  her  pain,  but  that  her  blood  sugar  levels  became  significantly  elevated \nafter  the  steroid  injection. Id. [at  29-31.] The  record  notes she  “has  failed  nonsurgical \ntreatment and is unable to proceed with repeat injection. The patient has elected to proceed \nforth with a right wrist arthroscopy and partial synovectomy....” That procedure (a right \nwrist   arthroscopy   with   triangular   fibrocartilage   complex (TFCC) repair   and   partial \nsynovectomy) occurred without complication on 4 January 2021. Id. [at 32-35.] \n She followed up with Dr. Norton’s office on 7 April 2021, when some pain and clicking \nwere   still   noted. Id. [at   41-44.] She   was   authorized   to   return   to   work   without \npushing/pulling/lifting with her right hand. A repeat MRI was ordered and performed on 27 \nApril 2021. Id. [at 45.] The claimant saw Dr. Norton again 27 April 2021. See,  [Cl. Ex. No. 1 \nat 91-94.] His note for that visit reflects: \nMRI showed findings consistent with the postoperative TFCC repair changes. \n. . . \nPatient has intact flexion extension of wrist, however this is limited secondary \nto pain. \nThere is palpable clicking noted along the dorsal and ulnar aspect of the wrist \nspecifically  with  wrist  flexion,  radial  deviation  as  well  as  supination  and \npronation. \nFull motion in the fingers. \n. . .  \nThe patient continues to have significant pain and clicking in the wrist. I do \nnot believe there is anything else I can really offer her other than a revision \narthroscopy to see if there is any other derangement within the wrist that has \ndeveloped.  If  the  wrist  arthroscopy  is  relatively  normal  [then]  I  would \n\nPUCKETT – G808579 \n \n13 \n \nrecommend  proceeding  forth  with  a  functional  capacity  evaluation.  The  risk \nand benefits of surgery were explained to the patient. Risks include but are not \nlimited   to   bleeding,   infection,   damage   to   nerves   or   vessels,   need   for \nreoperation,  stiffness,  continued  pain,  and  the  development  of  CRPS/RSD. \nThey voiced understanding of these risks and elected to proceed with surgery. \nWe will keep her on the same work restriction.  Id. \n   \n The revision was performed on 12 May 2021 without complication. Id. [at 96-97.] The \nTFCC repair appeared healed, but significant synovitis was observed again and addressed \nvia partial synovectomy. Additional OT began on 25 May 2021. Id. [at 98-102.] \n At a follow-up with Jenna Pardoe in Dr. Norton’s office on 22 June 2021, some range \nof  motion  improvement  was  noted  along  with  mild  wrist  pain. Id. [at  125-128.] Her  anti-\ninflammatory   medication   was   changed   and   her   work   restriction   was   placed   at   no \npushing/pulling/lifting with the right hand of more than five (5) pounds. Ms. Puckett saw Dr. \nNorton again on 3 August 2021, and his note from that visit reflects: \nShe continues to have significant pain in the wrist as well as stiffness in the \nhand. She is also complaining of pain in the forearm. \n. . .  \nSome mild wrist pain with range of motion. She also complains of some vague \nforearm pain. \n. . .  \nAt this point the patient does continue to have pain and stiffness in the hand \nas  well  as  in  the  forearm.  Not  sure  there  is  anything  I  can  offer  her  from  a \nsurgical   standpoint.   I   would   recommend   getting   a   functional   capacity \nevaluation   for   permanent   restrictions. In   the   meantime   I   would   also \nrecommend a referral to either Dr. Walker or Frankowski for evaluation. We \nwill  await  their  evaluation  and  the  FCE  to  determine  further  treatment \noptions.  Id. [at 185-188.] \n \n Ms. Puckett then saw Dr. Norton’s practice partner Dr. Brent Walker\n3\n on 13 August \n2021. Id. [at  189-194.] His  initial  assessment  included  Complex  Regional  Pain  Syndrome \nType 1 meeting Budapest criteria upper extremity. He ordered a triple phase bone scan and \nbeginning a series of Stellate Ganglion Blocks (SGBs). The bone scan was performed on 23 \n \n3\n According  to  the  OrthoArkansas  website,  Dr.  Walker  is  an  anesthesiologist  specializing  in \ninterventional pain management. See https://www.orthoarkansas.com/brent-walker-md-1. \n\nPUCKETT – G808579 \n \n14 \n \nAugust  2021,  and  the  radiologist’s  impression  was  listed  as  Complex  Regional  Pain \nSyndrome. Id. [at 195.] The SGB injections were performed between 24 August 2021 and 7 \nSeptember 2021. Id. [at 196-198.] \n Her next office follow-up with Dr. Walker was on 15 September 2021. Id. [at 199-203.] \nAccording to that note: \n She has not noticed much improvement following these injections. She \nhas been dealing with this pain for 9 months now. I am somewhat concerned \nthat  we  may  have  missed  her  window  of  opportunity  with  stellate  ganglion \nblocks. She still has focalized pain along the ulnar aspect of her palm. She has \nan  area  of  point  tenderness  she  can  press  on  causes  severe  pain  around  her \nthumb. Her right hand is still slightly swollen as compared to her left. She has \ntrouble gripping items and especially turning doorknobs. She is unable to take \nthe gabapentin due to severe nausea and vomiting. She is taking amitriptyline \nand clonidine. [Claimant disagrees with Dr. Walker’s comment here about her \nnot  tolerating  Gabapentin  and  discussing the other  medications she  was \ncontinuing.] \n. . . \nComplicating matters since we began the injections her blood sugars have been \nin the 400s. I do not have a good explanation for this other than stress reaction. \nThe injections do not contain any steroid which would be a possible reason for \nthese elevated blood sugars. Her primary care doctor has suggested we pause \nthe SGBs until she gets her blood sugar under control. \n. . . \n[CPRS] is a chronic condition which varies from person to person. And some \nsigns and symptoms go into spontaneous remission. It is possible for CPRS to \nreactivate months or even years after the initial insult. \n. . . \nWe will pause the [SGBs] until she gets her blood sugar under control. \n. . . \n \n The following week, Ms. Puckett presented for the FCE ordered by Dr. Norton. See, \n[Resp. Ex. No 1 at 76-95.]  According  to the report,  her effort was  reliable.  Her  limitations \nwere listed as “bi-manual lift/carry of up to 45 pounds,” maximal RUE unilateral lift of 20 \npounds  versus  25  pounds  with  the  LUE,  a  5-pound  limit  while  occasionally  reaching,  and \nmildly decreased grip strength in her right hand. “She performed all other activities at a level \nconsistent with that of an average worker.” The report concluded that, as defined by the US \n\nPUCKETT – G808579 \n \n15 \n \nDepartment of Labor’s guidelines, she was able to perform in the medium  classification  of \nwork. \n The claimant saw Dr. Walker again on 14 October 2021. See, [Cl. Ex. No 1 at 211-215.] \nShe stated that her blood sugars were better controlled, but that she was continuing to have \ntrouble with pain since stopping the SGBs and that she was experiencing notable sleepiness \nbecause of her medications. Dr. Walker ordered the SGB injections to begin again. \n On 28 October 2021, Dr. Norton authored a letter assigning Ms. Puckett a permanent \nimpairment  rating. Id. [at  216.] He  placed  her  at  MMI  and  adopted  the  work  limitations \nnoted in the FCE. Based on the AMA Guides to the Evaluation of Permanent Impairment, \n4\nth\n Ed., he assigned an impairment rating of the right wrist of eleven percent (11%) and of \nthe whole person at seven percent (7%). That rating was made with a reasonable degree of \nmedical certainty. \n The claimant then sought the opinion of Dr. D’Orsay Bryant, another orthopaedic \nsurgeon. Id. [at 217-219.] According  to  his 24  November  2021 exam note, “[t]he patient \nfurnished me hundreds of pages of her past medical record, which I have read over a dozen \ntimes.  The  treatment  rendered,  by  both  Dr.  Norton  and  Dr.  Walker,  is  satisfactory  and \nmedically indicated.” He found that the “patient does have a complex regional pain syndrome \nthat is extraordinarily difficult to treat” and agreed with Dr. Walker’s assessment  of  the \nchronicity of her condition. Dr. D’Orsay went on to state that “there are simply no further \neffective  treatment  recommendations that I can offer for the patient’s right wrist complex \nregional  pain  syndrome. The  patient  does  have  a  painful  right  wrist  disorder,  and  in  the \nfuture, a pain management program may be a treatment protocol consideration to address \nthe complex regional pain syndrome.” Id. \n\nPUCKETT – G808579 \n \n16 \n \n There is a gap in the medical records offered by the claimant between Dr. D’Orsay’s \nNovember 2021 exam and a visit with Dr. Walker in July of 2022. The respondents, however, \nprovide additional records for that time. \n On  24  January  2022,  ADC  sent  an  Essential  Job  Function  Questionnaire  to  Dr. \nD’Orsay.  He  faxed  a  response  that  same  day  stating,  “I  declined  to  recommend  any \northopaedic treatment, so I do not know her work status/restrictions.” See, [Resp. Ex. No 1 at \n105-106.] \n She  saw  Dr.  Norton  again  on  10  May  2022. Id. [at  107-111.] She  presented  with  a \nwalker,  stating  that  she  had  seen  Dr.  Barry  Baskin  and  that  he  recommended  a  nerve \nconduction study. Dr. Norton noted her history and continued symptoms. He ordered a nerve \nconduction  study/EMG and that she  remain  on  the same  work restrictions  as  noted  in the \nFCE. \n The claimant saw Dr. Rodrigo Cayme\n4\n on 21 June 2022 for the nerve conduction study. \nId. [at  112-119.] The  findings  were  all  within  normal  limits,  with  no  evidence  of  electrical \ninstability. \n Ms.  Puckett  returned  to  Dr.  Norton  again  on  21  June  2022. Id. [at  120-126.] He \nreviewed  the  normal  study  results  with  her  and  opined  that  he  had  little  to  offer  from  a \nsurgical standpoint. Another triple phase bone scan was ordered. That scan was conducted \non 27 June 2022 and returned a negative study with “no scintographic evidence of complex \nregional pain syndrome.” Id. [at 127-128.] \n On  7  July  2022,  Dr.  Norton  responded  to  a  case  management  letter  regarding  Ms. \nPuckett’s course. He confirmed she reached MMI on 21 August 2021, that her impairment \n \n4\n According  to  the  OrthoArkansas  website,  Dr.  Cayme  is  a  Physical  Medicine  and  Rehabilitation \nspecialist with a fellowship in interventional spine medicine. See \nhttps://www.orthoarkansas.com/rodrigocaymemd. \n\nPUCKETT – G808579 \n \n17 \n \nrating was unchanged, and that her work status (as previously authorized by him) had not \nchanged. Id. [at 129-131.] She then returned to Dr. Norton’s office on 25 July 2022, when he \nnoted the recent negative bone scan and that he was unsure of the etiology of the pain. He \nreferred her to Dr. Walker again. Id. [at 132-136.] \n Dr. Walker then saw her on 27 July 2022. See,  [Cl Ex. No 1 at 222-228.] He noted her \nhand  was  stiff,  painful,  and  looked  “terrible.”  He  recounted  her  course and  continued \ndifficulty, concluding, “[a]t this month her condition [has] existed for well over a year and a \nhalf. I think she is most likely in the chronic phase of this condition. I do not think any further \nstellate ganglion blocks or medications will be of benefit. I am going to refer her to UAMS for \nconsideration of a spinal cord stimulator.” Id. at 225. Dr. Walker referred her to Dr. Erika \nPeterson at UAMS. Id. at 220. \n The claimant appears to have presented to the JRMC Emergency Department on 16 \nAugust 2022, as evidenced by a radiology report provided in her medical exhibit. See, [Cl. Ex. \nNo 1 at 230.] The exhibit is a photo of a record indicating it is page three of three. The first \ntwo pages of the report and any associated clinic notes are not included. The impressions for \nwhat appear to be X-Ray imaging of the humerus and right hand are negative but for some \nmild  periarticular  osteopenia  in  the  right  hand.  A  nuclear  medicine  bone  scan  on  27  June \n2022 and CRPS are listed, respectively, for comparison and indication. Id.   \n After Dr. Walker’s referral to UAMS, Dr. Norton appears to have been provided with \nan Essential Job Function Questionnaire from the respondents. He completed that form on 3 \nOctober 2022, indicating no restrictions or limitations. Id. at 144. Neither the claimant nor \nthe respondents provided a progress note or record from an office visit associated with the \nquestionnaire. \n\nPUCKETT – G808579 \n \n18 \n \n The claimant provides several additional records from her PCP’s clinic. Id. [at  233-\n258.] She acknowledged at the hearing that this treatment was not authorized. Those records \ninclude  a  work  note  from  her  PCP  Dr.  Robert  Scott,  dated  5  January  2023,  that  does  not \nappear to correspond to any particular office visit. Id. [at 238.] The note states that she cannot \nwork due to her inability to use her right hand and that she was seeking further treatment. \nIV.  ADJUDICATION \n The  stipulated facts are  outlined  above. It  is settled that  the  Commission, with the \nbenefit of being in the presence of the witness and observing his or her demeanor, determines \na witness’ credibility and the appropriate weight to accord their statements. See, Wal-Mart \nStores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999).   \nA.  The Claimant is Not Entitled to Additional PPD for RSD/CRPS. \n \nThe claimant seeks additional PPD related to her RSD/CRPS diagnosis. The claimant, \nhowever, failed to meet her burden on refuting the appropriateness impairment rating issued \nby  Dr.  Norton  on  28  October  2021.  Nor  did  she  present  evidence  that  the  PPD  benefits \nassociated  with  that  rating  have  not  been  paid  accordingly.  The  claimant,  thus,  failed  to \nprove, by  a  preponderance  of  the  evidence, that  she  is  entitled  to  additional  PPD  benefits \nassociated with her wrist specific to the RSD/CRPS diagnosis and separate and beyond the \nrating already stated within a reasonable degree of medical certainty. \nPermanent  impairment  is  any  permanent  functional  or  anatomical  loss  remaining \nafter the healing period has ended.  Any determination of the existence or extent of physical \nimpairment  must  be  supported  by  objective,  measurable  medical  evidence. See, Walker  v. \nFresenius  Med.  Care  Holding,  Inc.,  2014  Ark.  App.  322, *12; 436  S.W.3d  164,  **171;  2014 \nArk.  App.  LEXIS  426, ***17  (citations cleaned  up).  Permanent  benefits  are  to  be  awarded \nonly  following  a  determination  that  the  compensable  injury  is  the  major  cause of  the \ndisability or impairment, with a “major cause” being established, by a preponderance of the \n\nPUCKETT – G808579 \n \n19 \n \nevidence, as to meeting more than fifty percent (50%) of the cause. Ark. Code Ann. §§ 11-9-\n102(F)(ii),  11-9-102(14).  Any  medical  opinion  offered  must  be  stated  within  a  reasonable \ndegree of medical certainty. Ark. Code Ann. § 11-9-102(16). \nHere,  we  have  a  claimant  who  received  a  permanent  impairment  rating  and  no \nevidence that benefits were not paid according to that rating. I do not find a preponderance \nof evidence to support a finding that Dr. Norton’s 28 October 2021 is insufficient or requires \nadjustment.  His  rating  assignment  contemplated  the  FCE,  which  put  her  in  the  Medium \nwork classification, and he found her to be at MMI. There is no evidence that this rating was \nnot  based  on  any  of  his  own  treatment  or  the  other  relevant  records  available  to  him, \nincluding her earlier visit with Dr. Walker, who saw her upon referral from Dr. Norton and \nwho assessed CRPS and noted that condition’s tendency to go into remission and reactivate. \nDr. Norton’s rating was made within a reasonable degree of medical certainty. \nFurther,  Dr.  Norton  responded in  July  of  the  following  year to  a  case  management \nletter regarding  Ms.  Puckett’s  course.  He  confirmed that  she  reached  MMI,  that  her \nimpairment rating was unchanged, and that her work status had not changed. There is no \nevidence that the notes and reports from claimant’s additional treatment with Dr. Walker \nwere not  available  to  Dr.  Norton  for  his  drafting  of  that  letter.  I  do  not  find  the \nunaccompanied (by  way  of  no  associated  office  visit  notes) and  unsupported (by  way  of  no \nreference to any previous provider notes, imaging studies, or FCE report) note from Dr. Scott \nto be persuasive in justifying any adjustment in the claimant’s rating or permanent benefits \nowed. \nAccordingly, the claimant fails to prove, by a preponderance of the evidence, that she \nis entitled to additional PPD benefits for CRPS/RSD. \nB.  The Claimant Has Not Provent that she is Permanently and Totally Disabled. \n \n\nPUCKETT – G808579 \n \n20 \n \nArkansas law defines “Permanent Total Disability” as the inability,  because  of  a \ncompensable  injury,  to  earn  any  meaningful  wages. And  the  employee  has  the  burden  of \nproving that inability to earn wages. Ark. Code Ann. §§ 11-9-519(e)(1-2). \nThe claimant said that she would like to return to work, “but I just know that I can’t \ndo the essential job functions....” [TR at 33.] What  essential  functions  of  what  job  has she \nshown she cannot perform? The FCE, which found her effort reliable, placed her at a medium \nclassification.  She  refused  to  attempt  to  return  to  her  job  with  the  respondents since  her \nsecond surgery and refused to cooperate in finding some other job with the defendants. By \nher own admission, the only job she applied for was one at Dollar General. “I know I couldn’t \ndo the job,” but to get the unemployment benefits she was seeking, she said, “you have to \napply for it, because – try to apply for a job, and that’s what I did.” [TR at 69-70.] \nOn taking Gabapentin (apparently for years now), Ms. Puckett stated “it’s gonna put \nme to sleep,” but “that’s just what I’ve been taking.” [TR at 37.] To the extent that she may \nassert  that  Gabapentin  essentially  disables  her,  she  produced  little  evidence  of  any \ncoordinated effort to better manage her medication or its effects. The claimant discredits Dr. \nWalker’s note about reporting Gabapentin making her sick. She cites Dr. Scott, whose \nunauthorized  treatment  went  on  outside  the  coordination  of  Dr.  Walker and  Norton’s \ncollaborative efforts, as her prescribing physician for Gabapentin. Even if Gabapentin were \nthe  only  medication  available  to  provide  her  with  relief,  she  produced  no  evidence  of  any \neffort  to  perform  in  the workplace only to  find  it  difficult.  Nor did she  produce evidence of \nworking with Dr. Scott working with her to find a different medication or dosing schedule to \nmitigate her concern about drowsiness. \nThe claimant is forty (40) years old with years of knowledge of prison operations and \nwith administrative knowledge and experience. I do not find her motivated to return to any \n\nPUCKETT – G808579 \n \n21 \n \nwork, and I give credit to the records reflecting her ability to work with restrictions over Dr. \nScott’s assertion that she cannot work at all because of difficulty with her right hand. \nBased on the record before me, I cannot find that Ms. Puckett is completely unable to \nparticipate  in  the  workforce. Accordingly,  I  do  not  find  that  she  has  proven, by  a \npreponderance  of  the  evidence, that  she  is  totally  and  permanently  unable  to  earn  wages. \nHer claim for Permanent and Total Disability Benefits is, therefore, denied. \nC.  The Claimant Has Not Proven Entitlement to Additional Benefits Under Ark. \nCode Ann. § 11-9-505(a)(1). \n \nUnder Arkansas law, an employer “shall be liable to pay to the employee the difference \nbetween benefits received and the average weekly wages lost” when an employer refuses to \nreturn an injured employee to work when employment is available within the employee’s \nwork limitations.  Ark. Code Ann. § 11-9-505(a)(1). The claimant seeks benefits under this \nstatute in the event that she is not found permanently and totally disabled. The respondents \nargue,  in  part,  that  this  claim  is  inconsistent with  her position  that she  is  unable  to work \naltogether. They also argue that the claimant refused to return to work and even refused to \nengage in an interactive process to discuss returning to work when the respondents sought \nthe same. \nThe  claimant  fails  to  prove she  is entitled  to  any  benefits  on  this  claim.  Working \nthrough the argued inconsistency of the two positions is not necessary. By the claimant’s own \ntestimony, she refused to cooperate with the respondents to discuss her returning to work. \nDespite  her  release  to work from Dr. Norton, she says she relied, instead, on Dr. Scott’s \nopinion that she should not work altogether. The record includes no persuasive evidence that \nshe was actually inclined to return to work for the respondents, but somehow thwarted by \ntheir refusal to permit or coordinate that. Her claim for these benefits fails accordingly. \nD.  The Claimant Is Entitled to Additional Reasonable and Necessary Medical \nTreatment and/or Pain Management. \n\nPUCKETT – G808579 \n \n22 \n \nArkansas  law  requires  an  employer  to  promptly  provide  for  medical  treatment  and \nsurgical  services  that  are  reasonably  necessary  and  related  to  injuries  sustained  by  an \nemployee. Ark. Code Ann. § 11-9-508(a). A claimant must prove, by a preponderance of the \nevidence,  that  medical  treatment  is  reasonable  and  necessary. Wal-Mart  Stores,  Inc.  v. \nBrown, 82 Ark. App. 600, 120 S.W.2d 153 (2003). Reasonable and necessary medical services \nmay include those necessary to, among other things, reduce or alleviate symptoms resulting \nfrom the compensable injury. Jordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 953, \n1995 Ark. App. LEXIS 589. \nThe claimant initially sought surgical intervention from Dr. Norton. Despite multiple \nefforts, he was unable to resolve her wrist problems and ultimately referred Ms. Puckett to \nDr. Walker for more treatment options. Dr. Walker assessed CRPS and attempted to improve \nher  symptoms,  but  without  much  success.  Dr.  Walker  recommended  referral  to  UAMS  for \nfurther evaluation and consideration of a Spinal Cord Simulator. \nThe  claimant  seeks  an  Order  from  the  Commission  finding  that  that  referral  is \nreasonable and necessary, as well as the treatments, prescriptions, and referral(s) from her \nPCP, Dr. Scott.  \nThe respondents argue against additional medical treatment. \nIn his continued efforts to resolve Ms. Puckett’s wrist problems, Dr. Norton noted in \nhis 27 April 2021 informed consent discussion [see Cl. Ex. No 1 at 94] that developing \nCRPS/RSD  was  a  risk  associated  with  revision  surgery.  That procedure  was  performed \nwithout  the  desired  result,  and  the  claimant  was  later  assessed  with  CRPS.  I  do  not  find \npersuasive  evidence  that  the  CRPS  and  eventual  referral  for  evaluation  for  a  Spinal  Cord \nStimulator are not related to the initial compensable injury; and I do find, accordingly, that \nthe Dr. Walker’s referral is a reasonable and necessary continuation of the treatment and/or \nmanagement of Ms. Puckett’s wrist problems. \n\nPUCKETT – G808579 \n \n23 \n \nThe claimant has seen and continues to see Dr. Scott for a number of health issues, \nincluding her compensable injury. To the extent that he has or continues to see Ms. Puckett \nfor care related to her wrist, that treatment was and is unauthorized. The respondents are \nnot liable for treatments, prescriptions, and referrals related thereto. \nE.  Attorney’s Fee \nArkansas law generally does not provide for an attorney’s fee to be awarded relating \nto  medical  services.  ACA  §  11-9-715.  While  the  claimant  has  proven  her  burden  as  to  the \nright to additional treatment for her compensable injury, attorney’s fees do not attach to her \nprevailing on that point. She has not proven her burden on the other issues litigated in this \nmatter. \nV.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, the \nrespondents are responsible for the reasonable and necessary care associated with Dr. \nWalker’s treatment and referral for consideration of additional treatment, including \nevaluation for a Spinal Cord Stimulator. Ms. Puckett’s other claims are denied. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":47935,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G808579 JURMICKA PUCKETT, EMPLOYEE CLAIMANT AR. DEPT. OF CORRECTIONS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, TPA RESPONDENT OPINION FILED 4 OCTOBER 2023 On hearing before Arkansas Workers’ Compensation Commission (AWCC) Administrative Law J...","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["back","wrist","sprain"],"fetchedAt":"2026-05-19T23:01:15.886Z"},{"id":"alj-H208097-2023-10-04","awccNumber":"H208097","decisionDate":"2023-10-04","decisionYear":2023,"opinionType":"alj","claimantName":"Lencola Robertson","employerName":"Courtyard Gardens Healthrehab","title":"ROBERTSON VS. COURTYARD GARDENS HEALTHREHAB AWCC# H208097 OCTOBER 4, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ROBERTSON_LENCOLA_H208097_20231004.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROBERTSON_LENCOLA_H208097_20231004.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208097 \n \nLENCOLA ROBERTSON, \nEMPLOYEE                                                                                                              CLAIMANT \n \nCOURTYARD GARDENS HEALTHREHAB, \nEMPLOYER                                                                                                         RESPONDENT  \n \nWESCO INS. CO./AMTRUST NORTH AMERICA \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED OCTOBER 4, 2023 \n \nHearing conducted on Tuesday, October 3, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Lencola Robertson, pro se, of Gurdon, Clark County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable William C. (Bill) Frye, Frye Law Firm, \nP.A., North Little Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Tuesday, October 3, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Repl.). \n The respondents filed a letter motion to dismiss with the Commission on August 9, 2023, \nrequesting this claim be dismissed without prejudice for lack of prosecution. In accordance with \napplicable Arkansas law, the claimant was mailed due and proper legal notice of the respondents’ \nmotion to dismiss, as well as a copy of the hearing notice at her current addresses of record via the \nUnited  States  Postal  Service  (USPS),  First  Class  Certified  Mail,  Return  Receipt  requested. \nThereafter, the claimant failed and/or refused to respond to the respondents’ motion in any way, \n\nLencola Robertson, AWCC No. H208097 \n2 \n \nor to cause anyone to do so on her behalf. Moreover, the claimant failed and/or refused to appear \nat the scheduled hearing, or to cause anyone to do so on her behalf.  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and/or attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute her claim at this time. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After having received due and legal notice of the respondents’ motion to dismiss, \n                  as well as due and legal notice of the subject hearing, the claimant failed and/or \n                  refused to respond to the motion in any way. Moreover, the claimant failed and/or \n                  refused to appear at the hearing, or to cause anyone to appear on her behalf.  \n                  Therefore, she is deemed to have waived her appearance at the hearing, and to have \n                  waived objection to the respondents’ motion to dismiss without prejudice. \n \n 3. The claimant has to date failed and/or refused to prosecute her claim. In addition, \n                   the claimant has failed and/or refused to request a hearing within the last six (6) \n                   months.  \n \n 4. Therefore, the respondents’ letter motion to dismiss without prejudice filed with \n                  the Commission on August 9, 2023, should be and hereby is GRANTED; and    \n\nLencola Robertson, AWCC No. H208097 \n3 \n \n                  this claim is dismissed without prejudice to its refiling pursuant to the deadlines  \n  prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission Rule  \n  099.13. \n \n This opinion and order shall not be construed to  prohibit the  claimant, her attorney,  any \nattorney she may retain in the future, or anyone else acting legally and on her behalf from refiling \nthe claim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-\n702(a) and (b). \n The  respondents  shall pay  the  court  reporter’s  invoice  within  twenty  (20)  days  of  their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5336,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208097 LENCOLA ROBERTSON, EMPLOYEE CLAIMANT COURTYARD GARDENS HEALTHREHAB, EMPLOYER RESPONDENT WESCO INS. CO./AMTRUST NORTH AMERICA INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED OCTOBER 4, 2023 Hearing conducted on T...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:01:17.949Z"},{"id":"alj-H300889-2023-10-02","awccNumber":"H300889","decisionDate":"2023-10-02","decisionYear":2023,"opinionType":"alj","claimantName":"Laura Bennett","employerName":"Arkansas Enterprises For Dev. Disabilities","title":"BENNETT VS. ARKANSAS ENTERPRISES FOR DEV. DISABILITIES AWCC# H300889 OCTOBER 2, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BENNETT_LAURA_H300889_20231002.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BENNETT_LAURA_H300889_20231002.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H300889 \n \n \nLAURA BENNETT, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nARKANSAS ENTERPRISES FOR DEV. DISABILITIES,   \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nRISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED OCTOBER 2, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, did not attend the hearing.  \n \nRespondents represented by the Honorable Carol Lockard Worley, Attorney at Law, Little Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A  hearing  was  held  on  September  20,  2023  in  the  present  matter  pursuant  to  Dillard  v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), for a determination \nof  whether  the  above-referenced  case  should  be  dismissed  for  failure  to  prosecute  under  the \nprovisions of Ark. Code Ann. §11-9-702 (Repl. 2012) and/or Arkansas Workers’ Compensation \nCommission Rule 099.13.  \nAppropriate Notice of this hearing was provided to all parties to their last known address, \nin the manner prescribed by law.   \nThe record consists of the transcript of the September 20, 2023, hearing and the documents \nheld therein.  Respondents’ Exhibit 1 consists of eight numbered pages, excluding the cover page.  \n\nBennett – H300889 \n \n2 \n \nAdditionally,  the  entire Commission’s file has been made a part of the record.    It  is  hereby \nincorporated into the hearing transcript by reference.    \nProcedural History \n On  February  9,  2023,  the  Claimant  filed  with  the  Commission  a  claim  for  Arkansas \nworkers’ compensation benefits by way of a Form AR-C.  Per this document, the Claimant alleged \nan  accidental  injury  on  May  3,  2021,  in  the  course  and  scope  of  her  employment  with  the \nrespondent-employer.  The Claimant described the cause of her injury and the part of body injured: \n“I was hit on my driver’s  side  and  my  passenger’s  side  which  caused  my  neck  and  back  to  be \ninjured.”  She  asked  for workers’ compensation benefits in the form of only  initial  medical \nexpenses.   \n The claims adjuster filed Form AR-2 with the Commission on February 20, 2023, accepting \nthe above referenced matter as a medical only claim.   \n Subsequently, there was no action taken by the Claimant to resolve her claim, and nor did \nshe request a hearing.   \nTherefore, the Respondents filed a Motion to Dismiss with the Commission on August 10, \n2023.   The  Respondents’  pleading  included  a  certificate  of  service  affirming  that  they  had \nforwarded a copy of the motion directly to the Claimant via certified mail through the United States \nPostal Service.  \nThe  Commission  sent  a  letter-notice  on  August  11,  2023, to  the Claimant’s  last  known \naddress  via  first-class  and  certified  mail.  Per  this  correspondence,  the  Commission  gave  the \nClaimant a deadline of twenty  days  for filing a  written response to the Respondents’ Motion to \nDismiss. \n\nBennett – H300889 \n \n3 \n \nOn  August  30,  2023,  the  Claimant  wrote  a  letter  to  the  Commission  saying, “I  Laura \nBennett give permission to dismiss my claim...”  \nThe Commission set the claim for a hearing pursuant to a Notice of Hearing mailed to the \nparties on August 29, 2023.  The notice was mailed to the Claimant via first-class and  certified \nmail.  Said hearing was scheduled for September 20, 2023, at the Commission in Little Rock.  \nThe notice that the Commission sent to the Claimant via first-class and certified mail has \nnot been returned to the Commission.   \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas  scheduled.  The  Claimant  did  not  attend  the  dismissal  hearing.    However,  the  Respondents \nappeared through their attorney.   \nThe Respondents’ attorney noted that it has been more than six months since the filing of \nthe Form AR-C, and the Claimant has not requested a hearing.  Therefore, counsel moved that this \nclaim be dismissed under Ark. Code Ann. §11-9-702 for a lack of prosecution of the case by the \nClaimant. \n        Discussion \nThe record before me proves that the Claimant has failed to promptly prosecute her claim \nfor workers’ compensation benefits.  The Claimant has not requested a hearing since the filing of \nthe Form AR-C in February 2023.  More importantly, the Claimant did not appear at the hearing \nto object to her  claim being dismissed and has said in writing that she is in agreement with her \nclaim being dismissed.   \nUnder these circumstances, I am compelled to find that the evidence preponderates that the \nClaimant has failed to prosecute her claim for workers’ compensation benefits in the manner set \nforth under the law.  Hence, the Claimant does not object to her claim being dismissed.  Therefore, \n\nBennett – H300889 \n \n4 \n \nper  Ark.  Code  Ann.  §11-9-702,  I  find  that  this  claim  should  be  and  is  hereby  respectfully \ndismissed, without prejudice, to the refiling of it within the limitation period specified by law.   \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion for dismissal of this \nclaim due to a lack of prosecution by the Claimant, for which a hearing was \nheld. \n \n3. The Claimant has not requested a hearing since the filing of her Form AR-\nC, which was done in February 2023.  Hence, the evidence preponderates \nthat   the   Claimant   has failed  to  prosecute  her  claim  for  workers’ \ncompensation  benefits.    The  Claimant  does  not  object  to  her  claim  being \ndismissed.      \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ Motion to Dismiss this claim due to a lack of prosecution \nis hereby granted, without prejudice, per Arkansas Code Ann. §11-9-702, \nto the refiling of it within the limitation period specified by law.  \n \nORDER \nFollowing the findings of fact and conclusions of law set forth above, this claim is hereby \ndismissed per Arkansas Code Ann. §11-9-702, without prejudice, to the refiling of it, within the  \nlimitation period specified by law.  \nIT IS SO ORDERED. \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":7118,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H300889 LAURA BENNETT, EMPLOYEE CLAIMANT ARKANSAS ENTERPRISES FOR DEV. DISABILITIES, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED OCTOBER 2, 2023 Hearing held before Administrative Law Judge Chandra L. B...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T23:01:09.647Z"},{"id":"alj-H208370-2023-10-02","awccNumber":"H208370","decisionDate":"2023-10-02","decisionYear":2023,"opinionType":"alj","claimantName":"Jason House","employerName":"Penske Logistics, Inc","title":"HOUSE VS. PENSKE LOGISTICS, INC. AWCC# H208370 OCTOBER 2, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HOUSE_JASON_H208370_20231002.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOUSE_JASON_H208370_20231002.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H208370 \n \nJASON HOUSE, Employee                                                                              CLAIMANT \n \nPENSKE LOGISTICS, INC., Employer                                                      RESPONDENT                       \n \nOLD REPUBLIC INSURANCE CO., Carrier/TPA                                      RESPONDENT                       \n \n \n \n OPINION FILED OCTOBER 2, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 28, 2023, the above captioned claim came on for hearing at Fort Smith, \nArkansas.  A pre-hearing conference was conducted on June 28, 2023 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     Claimant sustained a compensable injury to his right knee on June 15, 2022. \n 3.      The claimant was earning an average weekly wage of $1,100.00 which would \nentitle him to compensation at the weekly rates of $733.00 for total disability benefits and \n\nHouse – H208370 \n \n2 \n \n$558.00.00 for permanent partial disability benefits. \n 4.    Claimant has been assigned an impairment rating of 37% to his right lower \nextremity. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.     Claimant’s entitlement to permanent disability benefits in an amount equal to  \n37% to the lower extremity. \n2.      Attorney fee. \nThe claimant contends he is entitled to permanent partial disability benefits for his \ncompensable injury and that his attorney is entitled to the statutory fees.   \nThe  respondents  contend  that  all  appropriate  benefits  have  been  paid.   The \nclaimant suffered a twisting injury to his right knee resulting in a meniscal tear.  Prior to \nhis  injury,  he  had  surgery  on  his  right  knee  and  had  a  prior  diagnosis  of  osteoarthritis \nwhich  was  deemed  to be bone on bone.  Dr. Creech’s report of 8/30/22 indicated the \nclaimant has had chronic right knee pain for years.  Medical reports, including the surgical \nreport,  support  the  diagnosis  of  osteoarthritis  being  the  sole  need  for  the  total  knee \nreplacement.  In light of this, it is respondents’ position that the claimant’s work related \nmeniscal injury is not the major cause of the need for the total knee replacement or the \npermanent impairment that has been assigned.  Thus, it is respondents’ position that they \nare not liable for that impairment rating. \nFrom a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n\nHouse – H208370 \n \n3 \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.        The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \nconducted on June 28, 2023 and contained in a pre-hearing order filed  that same date \nare hereby accepted as fact. \n 2.        Claimant has failed to meet his burden of proving by a preponderance of \nthew  evidence  that  he  is  entitled  to  permanent  partial  disability  benefits  in an  amount \nequal to 37% to the lower extremity for his compensable injury. \n \n FACTUAL BACKGROUND \n Claimant is a 51-year-old high school graduate who has primarily been employed \nas a truck driver for the last twenty-five years.  He was involved in a motor vehicle accident \nin 1997 in which he injured his right hip and fractured his right femur and kneecap.  This \nresulted in surgery on both his right hip and his right knee.   \n On June 15, 2022, claimant was working for respondent driving a truck hauling live \nturkeys from a farm to a processing plant.  As he was pre-tripping his trailer by dollying \nup the landing gear, he stepped in a hole, causing his right knee to twist and pop.   \n After  some  initial  treatment  at  MedExpress,  claimant  was  referred  to  Dr.  Trent \nJohnson,  orthopedic  surgeon,  for  treatment  on  July  15,  2022.    Dr.  Johnson  noted  that \nclaimant  had  a  history  of  post-traumatic  arthritis  of  the  right  knee  and  diagnosed  his \ncurrent  condition  as  an  exacerbation  of  the  arthritis  in  the  right  knee.    Dr. Johnson \nprescribed physical therapy and gave claimant an injection. \n In his report of August 12, 2022, Dr. Johnson noted that the injection had provided \nclaimant only a few days of relief and that claimant’s knee pain had gotten to the point \n\nHouse – H208370 \n \n4 \n \nthat it was no longer tolerable.  Dr. Johnson referred claimant to Dr. Kramer for a total \nknee  arthroplasty  evaluation.    Instead  of  seeing  Dr.  Kramer,  claimant  was  sent  by \nrespondent for an evaluation with Dr. Jonathan Creech, orthopedic surgeon.   \n In a report dated August 30, 2022, Dr. Creech noted that claimant had a twisting \ninjury at work that exacerbated his chronic right knee pain.  Dr. Creech performed a right \nrobotic  total  knee  arthroplasty  on  November  16,  2022.    Medical  records  following  the \nsurgery indicate that claimant had a good result from the procedure. \n Dr. Creech sent claimant for a functional capacities evaluation and an impairment \nrating  evaluation  which  were  performed  on  April  19,  2023.    The  functional  capacity \nevaluation determined that claimant gave a reliable effort with all consistency measures \nwithin expected limits.  In addition, the impairment evaluation determined that claimant \nhad an impairment rating of 15% to the body as a whole or 37% to the lower extremity. \n Respondent  has  not  accepted  liability  for  the  impairment  rating  and  as  a result, \nclaimant has filed this claim contending that he is entitled to payment of permanent partial \ndisability benefits based on the 37% impairment rating to the lower extremity. \n \nADJUDICATION \n Claimant  contends  that  he  is  entitled  to  payment  of  permanent  partial  disability \nbenefits based on the 37% impairment rating assigned to him following his surgery.  The \nrelevant statutory law is codified at A.C.A. §11-9-102(4)(F)(ii) which states: \n \n(a)   Permanent benefits shall be awarded only upon a \ndetermination that the compensable injury was the major \ncause of the disability or impairment.  \n(b)   If any compensable injury combines with a pre- \n\nHouse – H208370 \n \n5 \n \nexisting disease or condition or the natural process of \naging to cause or prolong disability or a need for \ntreatment, permanent benefits shall be payable for \nthe resultant condition only if the compensable injury \nis the major cause of the permanent disability or need \nfor treatment. \n \n \n A.C.A. §11-9-102(14)(A) defines “major cause” as more than fifty percent (50%) of \nthe cause. \n This  statute  was  addressed  by  the  Arkansas  Supreme  Court  in Hickman  v. \nKellogg, Brown & Root, 372 Ark. 501, 277 S.W. 3d 591 (2008).  In that case, Hickman \nslipped and fell hitting his right knee against a platform on April 26, 2002.  An injury to \nHickman’s right knee was accepted as  compensable  by  Kellogg.    (There  was  also  an \ninjury to Hickman’s back at that time, but issues involving the back are not relevant to this \ndiscussion.)    An  x-ray  of  Hickman’s  right  knee  showed  severe,  multi-compartmental \nosteoarthritis with no findings of acute traumatic injury.  An MRI of Hickman’s right knee \ndated August 15, 2022 showed a small joint effusion and degenerative arthritic changes \nin the right knee.   \n Hickman  eventually  underwent  a  total  knee  replacement  surgery  on  September \n29,  2004,  and  this  surgery was accepted and paid for by Kellogg.  Hickman’s treating \nphysician assigned an impairment rating of 30% to the lower extremity for the surgery.  \nKellog  did  not  accept  liability  for  the  impairment  rating  and  a  hearing  was conducted.  \nFollowing decisions by an administrative law judge and the Full Commission, the Court \nof  Appeals  reversed  and  found  that  since  Kellog  had  stipulated  that  the  knee  was \ncompensable, it could not avoid responsibility for surgery and the impairment rating.  An \nappeal to the Arkansas Supreme Court followed. \n\nHouse – H208370 \n \n6 \n \n The Court first noted the requirements of A.C.A. §11-9-102(4)(D) and (16).  It then \nnoted that in order for Hickman to be entitled to permanent benefits, he was required to \nshow (1) he sustained an injury arising out of and  in the course of his employment; (2) \nthat  the  injury  was  caused  by  a  specific  incident;  (3)  that  the  injury  caused  internal  or \nexternal physical harm to his body; (4) that the injury is supported by objective findings; \nand (5) that the injury was the major cause of the disability or need for medical treatment.  \nThe Court noted that the first four factors were supported by the evidence and the parties’ \nstipulations.  The Court stated: \n   \n  With regard to the fifth factor, the key issue is whether, \n  pursuant to Ark. Code Ann. §11-9-102(4)(F)(ii)(a), \n  Hickman’s compensable knee injury, stemming from \n  his work-related April 26, 2002 accident, was the \n  “major cause” of his resultant impairment rating. \n \n \n The Court went on to find that Hickman failed to prove that his work injury was the \nmajor  cause  of  his  total  knee  replacement  surgery  and  resulting  impairment  rating.    In \nreaching its decision, the Court noted Hickman’s pre-existing degenerative knee condition \nwhich had been described as significant as well as the diagnostic test showing severe \npost-traumatic degenerative arthritis with no acute findings of traumatic injury.  Hickman’s \ntreating physician noted that these findings existed prior to the April 26, 2002 injury. \n The Court also noted that medical records indicated that all physical evidence from \nHickman’s work-related  injury  had  resolved  itself  by  the  time  of  his  knee  replacement \nsurgery.  And finally, the Court noted that Hickman’s surgeon had opined that the severe \npre-existing degenerative changes in his right knee were the major cause of the surgery \nand impairment rating.   \n\nHouse – H208370 \n \n7 \n \n In making its finding that Hickman had failed to prove that his injury was the major \ncause of the total knee replacement surgery and resulting impairment, the Court noted: \n  Further, there is no evidence that the need for Hickman’s \n  knee-replacement surgery and the resulting impairment \n  would not have occurred but for the work-related injury. \n \n \n In a footnote to that statement, the Court noted: \n  We note that when a compensable injury combines with \n  a pre-existing condition to cause the need for treatment, \n  such as knee surgery, permanent benefits are payable \n  for the resulting impairment only if the injury is the major \n  cause of the permanent disability or need for treatment. \n  Ark. Code Ann. §11-9-102(4)(F)(ii)(b) (Supp. 2007) \n  (emphasis added).  Thus, the evidence of a causal \n  connection between the  employment-related injury  \n  and the need for surgery, which was sufficient for \n  purposes of determining the compensability of the \n  knee injury and the knee surgery, did not automatically \n  resolve the key issue in determining entitlement to \n  permanent benefits:  whether the compensable knee \n  injury was the major cause of Hickman’s eventual \n  need for a total knee replacement. \n   \n \n In other words, while a causal connection is sufficient  to   prove   a   compensable \ninjury and liability for surgery, it does not automatically resolve the issue of permanent \nbenefits  which  requires  a  showing  that  the  injury  was  the  major  cause  of  the  need  for \ntreatment and the resulting impairment. \n In this case, claimant also had a significant history of a pre-existing degenerative \ncondition.  In 1997 claimant was involved in a motor vehicle accident which resulted in a \nfracture of the right femur and kneecap.  Claimant underwent surgery on his right knee \nas a result of this prior motor vehicle accident.  Although claimant testified that after he \nrecovered  from  that  injury  and  the  resulting  surgery  he  did  not  have  any  additional \n\nHouse – H208370 \n \n8 \n \nproblems with his right knee until after the June 15, 2022 injury, the medical records reflect \notherwise.   \n On December 12, 2016, claimant was evaluated by Dr. James Long for complaints \ninvolving his left knee.  Although the focus was on the left knee, Dr. Long’s medical report \nindicates  that  an  x-ray was also taken of claimant’s right knee which showed diffuse \narthrosis, particularly in the medial compartment and changes in the patellofemoral joint \nconsistent with “significant posttraumatic degenerative change.”  Dr. Long’s diagnosis \nfrom that evaluation included:  Severe posttraumatic arthrosis of the right knee.  In that \nsame report, Dr. Long also stated: \n  The degeneration of the right hip and the right knee \n  may eventually require replacement arthroplasty. \n  (Emphasis added.) \n \n \n Claimant returned to Dr. Long on March 6, 2017 for a second injection in his left \nknee.  Dr. Long again stated the following with respect to the right knee: \n  He has severe posttraumatic arthrosis of the right  \n  knee from fracture of the femur and injury around \n  the patella that occurred in a motor vehicle accident \n  in the 1990s.   \n \n \n Furthermore, in an office note dated June 29, 2021, Dr. Terri Lewelling stated: \n  History left hip replacement, has been told that he \n  needs both knees replaced, shoulders hurt from \n  previous injury.  States he is not ready to see ortho. \n  When it gets too bad, he will consider it. \n  (Emphasis added.) \n \n \n Finally, approximately one month before the June 15, 2022 accident, claimant was \nseen by Dr. Lewelling for hypertension on May 11, 2022.  Dr. Lewelling’s note of that date \n\nHouse – H208370 \n \n9 \n \ncontains the following notation: \n  Knee bone bone on the right; Lots of pain all the time; \n  Pt is not helpful; walking is hard after ½ day; can go \n  back out after sitting 2 yrs [sic]; Last injection was \n  7-10 yrs ago; 1 mo benefit. \n \n \n These complaints regarding claimant’s right knee pain were noted only one month \nbefore his compensable injury. \n As claimant correctly notes in his post-trial brief, his treating physicians opined that \nhis work-related injury exacerbated the pre-existing arthritis in his right knee.  However, \nas  the  Court  in Hickman  noted,  evidence  of  a  causal  connection  may  be  sufficient  for \nproving compensability of the knee injury and liability for the knee surgery; however, the \nkey issue in determining entitlement to permanent benefits is whether the knee injury was \nthe major cause of the need for the total knee replacement.   \n I find that claimant has failed to prove by a preponderance of the evidence that his \ncompensable  injury  was  the  major  cause  of  the  permanent  disability  or  need  for \ntreatment.    Claimant’s  pre-existing  condition  was  described  as  severe  posttraumatic \narthrosis of the right knee.  According to Dr. Lewelling’s report of June 29, 2021, claimant \nhad been told that he needed both of his knees replaced and that when “it gets too bad, \nhe will consider it.”  Thereafter, in his report of May 11, 2022, Dr. Lewelling indicated that \nclaimant’s right knee was bone on bone and that claimant was having lots of pain.  He \nalso noted that claimant stated that walking was hard after one-half a day and that he had \nto sit for a period of time before returning to work. \n While Dr. Creech suspected that claimant might have a meniscal injury or some \nother  soft  tissue  injury  on  top  of his  arthritis,  this  was  not  established  according  to  the \n\nHouse – H208370 \n \n10 \n \nNovember  16,  2022  operative  report.    Instead,  the  operative  report  indicates  a \npreoperative diagnosis of right knee osteoarthritis with a postoperative diagnosis as the \nsame osteoarthritis. \n Thus, while claimant’s pre-existing arthritic condition was aggravated by the injury \non  June  15,  2022,  resulting  in  payment  of  compensation  of  benefits  and  medical \ntreatment, the injury was not the major cause of the permanent impairment or the need \nfor  treatment.    Therefore,  pursuant  to  A.C.A.  §11-9-102(4)(F)(ii)(a)  and  (b), and  the \ndecision  in Hickman, I  find  that  claimant has  failed  to meet  his burden  of  proving  by  a \npreponderance  of  the  evidence  that  he  is  entitled  to  payment  of  permanent  disability \nbenefits in an amount equal to 37% to the lower extremity. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that he is entitled \nto permanent partial disability benefits in an amount equal to 37% to the body as a whole.  \nTherefore, his claim for compensation benefits is hereby denied and dismissed. \n Respondents  are  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $356.45. \n IT IS SO ORDERED. \n \n      ____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":17695,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208370 JASON HOUSE, Employee CLAIMANT PENSKE LOGISTICS, INC., Employer RESPONDENT OLD REPUBLIC INSURANCE CO., Carrier/TPA RESPONDENT OPINION FILED OCTOBER 2, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, A...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["knee","hip","back","fracture"],"fetchedAt":"2026-05-19T23:01:11.720Z"},{"id":"alj-H205677-2023-09-29","awccNumber":"H205677","decisionDate":"2023-09-29","decisionYear":2023,"opinionType":"alj","claimantName":"Julius Brown","employerName":"J B Hunt Transport Inc","title":"BROWN VS. J B HUNT TRANSPORT INC. AWCC# H205677 SEPTEMBER 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BROWN_JULIUS_H205677_20230929.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BROWN_JULIUS_H205677_20230929.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H205677 \n \nJULIUS BROWN, EMPLOYEE   CLAIMANT \n \nJ B HUNT TRANSPORT INC., EMPLOYER RESPONDENT \n \nESIS INC./INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED SEPTEMBER 29, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by JOSEPH H. PURVIS, Attorney, Little Rock, Arkansas. \n \nOPINION/ORDER \n \nOn July 11, 2023, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since this claim was established based on the filing of the AR-1 form by the respondent.  \nThis filing occurred on August 9, 2022, and related to an injury on July 8, 2022.  A review of the file \ndid not reveal an AR-C form submitted by claimant. Claimant has not made a request for a hearing in \nthis  matter.  A  hearing  on  respondent’s Motion to Dismiss was scheduled for September  21,  2023. \nAppropriate notice of this hearing was attempted on the claimant in the manner prescribed by law via \nthe United States Postal Service, and the item could not be delivered due to the Postal Service being \nunable to locate any delivery  information in its records. Claimant did not respond to Respondent’s \nmotion and did not appear in person at the hearing on September 21, 2023.  \nIn  support  of  its  Motion  to  Dismiss,  respondent provided a copy of a “Stipulation and \nAgreement” which was entered in the State of Georgia that is similar to a joint petition agreement in \n\nBrown-H205677 \n \n2 \n \nArkansas. The settlement for the injury was a total of $70,000.00.  It therefore appears that claimant \nelected to prosecute his claim in the State of Georgia.  \n I find it has been more than six months since prior to this  hearing that the First Report of \nInjury was filed.  To date, claimant has not filed anything in the State of Arkansas to commence a \nclaim here.  To the extent that it is necessary to dismiss this claim, Respondent’s Motion to Dismiss \nshould be and hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without \nprejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2404,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205677 JULIUS BROWN, EMPLOYEE CLAIMANT J B HUNT TRANSPORT INC., EMPLOYER RESPONDENT ESIS INC./INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED SEPTEMBER 29, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington County, Arka...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:03:19.359Z"},{"id":"alj-H207576-2023-09-29","awccNumber":"H207576","decisionDate":"2023-09-29","decisionYear":2023,"opinionType":"alj","claimantName":"Willie Hinton","employerName":"B H I Energy Inc","title":"HINTON VS. B H I ENERGY INC. AWCC# H207576 SEPTEMBER 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HINTON_WILLIE_H207576_20230929.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HINTON_WILLIE_H207576_20230929.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H207576 \n \nWILLIE HINTON, Employee                                                                                    CLAIMANT \n \nB H I ENERGY INC., Employer                                                                         RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier           RESPONDENT \n \n \n OPINION FILED SEPTEMBER 29, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope \nCounty, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On June 1, 2023, the above captioned claim came on for hearing at Russellville, Arkansas.  A \npre-hearing conference was conducted on June 1, 2023 and a pre-hearing order was filed on that same \ndate.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made a part \nof the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on or about October 11, 2022. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Whether claimant sustained a compensable injury on or about October 11, 2022. \n2. Compensation rate. \n            3.   Whether claimant is entitled to temporary total disability benefits. \n            4.   Whether claimant is entitled to medical benefits. \n\nHinton-H207576 \n2 \n \n All other issues are reserved by the parties. \n The claimant contends that “Worked night shift 10/10/22 6pm-6am. Was off loading/staging \ncamera/communication equipment was near end of shift. Felt a pull-on right hand. Completed shift. \nTold  coworker  (James  Patrick)  what  happened,  left  work.  Woke  1  ½  hours  later  with  swollen \narm/wrist/fingers. Called Bob Dow and reported accident at that time.” \n The respondents contend that “Claimant does not have a compensable injury. All tests \nrevealed no new objective medical findings. Strains are not compensable.” \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.  The stipulations agreed to by the parties at a pre-hearing conference conducted on June 1, \n2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.  The stipulations set forth above, as well as the one announced at the hearing, are reasonable, \nand are hereby accepted. \n3.  Claimant has met his burden of proof by a preponderance of evidence that he is entitled to \ntemporary total disability benefits beginning October 11, 2022, and continuing through February 22, \n2023. \n4.  Claimant has met his burden of proof by a preponderance of the evidence that he is entitled \nto reasonable and necessary medical benefits for his right upper extremity injury. \nFACTUAL BACKGROUND \n During the hearing, the parties stipulated that claimant was earning wages sufficient to entitle \n\nHinton-H207576 \n3 \n \n \nhim to the maximum rate for temporary total disability benefits.  That issue was removed from those \nrecited in the prehearing order.  \nHEARING TESTIMONY \n \n Claimant was  the  only  witness at  the  hearing.  He stated  that  on  October  10,  2022,\n1\n  he  was \nworking for respondent B H I Energy at Arkansas Nuclear One power station in Russellville, moving \nvarious equipment, hoses, and things of that nature. He had felt a pop in his hand and notified his co-\nworker, James Patrick, of the injury. He finished the shift and went to the hotel to sleep before his \nnext shift. He awoke with his fingers, hand, and arm swollen and hurting, at which time he contacted \nhis direct supervisor, Robert Dow. Because he is a veteran, he went to the VA Hospital in Little Rock, \nArkansas where he was x-rayed but no broken bones were found. Claimant took off that night and \nthe following night. When he went back to work, his condition was not any better, so he went back \nto the hospital for more treatment. Around this time, there was a small break in the job, and he was \nallowed to go home. He went to the VA again and sought treatment. He was contacted by his employer \nand sent to a doctor that had been provided to him by the workers’ compensation carrier. After he \nhad  gone  two  times,  he  was  informed  that  the  claim  had  been  denied.  Claimant  then  went  to  his \nprimary care doctor and was treated for his injury. There was an MRI performed, and after the results \nof the MRI, he received a cortisone shot.  \n Claimant  explained  that  he  was  off  work  from  October  11,  2022,  until  February  22,  2023, \nbecause  of  the  injury  that  he  sustained,  for  a  total  of  eighteen  weeks.  He  requested  that  he  be \nreimbursed for his time off work and for any medical expenses that he submitted. \n On cross-examination, claimant was asked if he knew how he injured his right wrist and he \n \n1\n As noted in claimant’s contentions, his shift began on October 10, 2022, but his injury occurred in the morning \nhours of October 11, 2022.  \n\nHinton-H207576 \n4 \n \n \nresponded that he did so while he was lifting camera equipment. He was asked about Respondent’s \nExhibit #1, which was a handwritten letter that included, “I contacted Bob Dow and informed him I \nhad  injured  myself  at  work  but  did  not  know  the  exact  [sic]  it  happen during the shift.” (Claimant \napparently omitted the word “time” in this sentence.) When asked to explain when he was injured and \nhow  it  happened,  claimant  said  that  he  was  lifting  camera  equipment  and  denied  that  it  happened \ngradually; he knew it was toward the end of his shift when he hurt his wrist. Claimant was shown a \nletter that he had written several days after the injury, and which was admitted as Respondent’s Exhibit \n#1. He testified that he knew all along when he was injured. Claimant was asked about the Employer’s \nFirst Report of Injury but had not seen it and did not know where the information came from that \nwas included in that document. Claimant agreed that he had not noticed that his hand was swollen \nuntil after he left work and got up the next morning. When asked how he associated the swelling with \npacking some equipment the night before, claimant said he had informed James Patrick that he had \nhurt it that night. He hurt himself at the end of the shift, then went to the hotel to rest up a bit and \nwoke up to see the swelling. Claimant denied that he hurt himself anywhere other than at work.  \n Claimant was asked about the third impression on the MRI that said, “There is degeneration \nand a possible tear.” Asked if he had been treated for a tear, claimant responded that he  had been \nwearing a splint.  He said initially he was given pills, and the injury wasn’t treated as a tear. As of the \ndate of the hearing, claimant had not had surgery. Claimant did not know why the initial medical report \nsaid there was no trauma because the swelling shown in the pictures indicates that there was trauma. \nClaimant said there weren’t many minutes left in his shift and he finished it, and called in the next \nnight when he went to the hospital. He was scheduled to be off the following night, which gave him \ntwo days to recover and return to work on the third night. He was put on light duty status on that day. \nHe did not go back to work at Nuclear One after one day of light duty. He testified he did not work \n\nHinton-H207576 \n5 \n \n \nagain until February 26, 2023, when he returned to work for respondent BHI. When claimant is not \nworking for BHI, he can work for other companies but did not because he was injured, nor did he \ndraw unemployment.  \n When asked what was wrong with his right hand as of the date of the hearing, he said it is not \nas strong as it was before October 11, 2022, and remains painful. Claimant denied that he had injured \nhis wrist before that injury.  \n \nREVIEW OF THE EXHIBITS \n \n Claimant was first seen in the emergency room at the Central Arkansas Veterans Healthcare \nSystem in Little Rock on October 11, 2022. The diagnosis was that he had soft tissue swelling in his \nright wrist. He was excused from work for one day.  \n Consistent with his testimony, claimant was next seen on October 19, 2022, by a physician’s \nassistant (whose signature is illegible) at an occupational medicine facility called I & O Medical Centers. \nThe diagnosis from that visit was that claimant had a right-hand strain and a right flexor sprain. His \nphysical restrictions were no lifting or pulling more than five pounds, no overhead work with his right \nhand, no climbing, no operation of hazardous machinery or power tools, no commercial driving, no \nworking heights, and no tight gripping with his right hand. He returned to I & O Medical Center on \nOctober 21, 2022. The attending physician or assistant (signature again is illegible) made a referral to \nphysical therapy and continued to restrict claimant’s activities to no lifting or pulling more than ten \npounds,  no  operation  of  hazardous  machinery  or  power  tools,  no  commercial  driving,  no  working \nheights. He was scheduled to return to this provider on November 1, 2022, but according to claimant’s \ntestimony the workers’ compensation carrier refused to continue to pay for his treatment. As such, he \nwas  next  seen  at  the  Department  of  Veterans  Affairs  in  Hampton,  Virginia  by  Dr.  John  Wing. \nClaimant first saw Dr. Wing on October 26, 2022, and Dr. Wing ordered an MRI and initiated therapy \n\nHinton-H207576 \n6 \n \n \nfor his wrist. Dr. Wing also recorded “For the foreseeable future he is not able to work. It is unclear \nwhen he will be released to return to work.”  \n An MRI was performed on November 13, 2022, with the following impressions: \n 1. MRI of right wrist demonstrates moderate diffuse synovitis. \n 2. Diffuse mild tenosynovitis of the flexor tendons of the carpal tunnel, and \n mild tenosynovitis of the fourth extensor compartment. \n 3.  Degeneration  and  possible  tear  of  the  volar  band  of  the  scapholunate \n ligament. \n 4. Degeneration and likely full-thickness perforation of the central disc of the \n TFCC.  \n \n Claimant next saw Dr. Wing on January 12, 2023. Dr. Wing recorded the following: \n“The patient was discovered to have marked synovitis of his right wrist along \nwith a possible tear of one of the ligaments. Patient was seen by a specialist \nand is currently undergoing a rest cure. Patient continues to be disabled from \nthe wrist.”  \n \n The final entry from Dr. Wing is dated June 28, 2023. It appears that Dr. Wing saw claimant \non February 22, 2023, because his note of June 28, 2023, stated that claimant had been released to \nreturn to work on February 22, 2023. Claimant’s treatment was rest along with a cortisone shot. Dr. \nWing also recorded “Patient continues to have right hand pain and stiffness treatment is pending \northopedic reevaluation.”  \n NON-MEDICAL EXHIBITS \n \n            Claimant  submitted  two  photographs  from  October  11,  2022,  of  his  right  wrist  positioned \nalongside his left arm; the swelling in the right arm is evident. The remaining non-medical records that \nclaimant submitted included a bill for services performed at Hampton Roads Ortho Spine and Sports \nMedicine in Newport News, Virginia for the MRI on November 13, 2022, and services rendered at \nthat facility from a subsequent visit on December 13, 2022. It appears the total charges were $2,063.00 \nbut  there  were  adjustments  and  refunds  in  the  amount  of  $1,498.62  and  an  insurance  balance  of \n$290.00. Payments in the amount of $274.38 were made, but the source of the payment is not clear; \n\nHinton-H207576 \n7 \n \n \nthere are references to “commercial payment”. Claimant also submitted pay records to establish his \ncompensation rate. \n Respondents submitted only the handwritten letter referred to in claimant’s testimony. \nADJUDICATION \n \nTo  prove  a  compensable  injury,  the  claimant  must  establish  by  a  preponderance  of  the \nevidence:  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  that  the  injury  caused \ninternal or external  harm to the body which required medical services or resulted in disability or death; \n(3) medical evidence supported by objective findings, as defined in Ark. Code Ann. § 11-9-102(16) \nestablishing the injury; and (4) that the injury was caused by a specific incident and identifiable by time \nand place of occurrence. If the claimant fails to establish any of the requirements for establishing the \ncompensability of the claim, compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 Ark. \nApp. 126, 938 S.W.2d 876 (1997).  A claimant's testimony is never viewed as uncontroverted, but the \nCommission need not reject the claimant's testimony if it finds that testimony worthy of belief. Ringier \nAmerica v. Combs, 41 Ark. App. 47, 849 S.W.2d 1 (1993).  \nHaving had the benefit of seeing claimant testify, I found him to be credible in all aspects of \nhis  testimony.    As  such,  I  believe  he  suffered  an  injury  to  his  right  wrist  in  the  course  of  his \nemployment, and that it was a specific incident that caused it. Contrary to respondent’s contention, \nthe  medical  records  and  the  photographs  of  his  swollen  wrist  provided  objective  evidence  that \nclaimant  had  internal  harm  to  his  body.      Therefore,  claimant  met  his  burden  of  proof  by  a \npreponderance of the evidence on all four elements that he suffered a compensable injury on October \n11, 2022.     \nClaimant  requested  18  weeks  of  temporary  total  disability,  from  October  11, 2022,  until \nFebruary 22, 2023.   A claimant who suffers a scheduled injury is entitled to temporary total disability \n\nHinton-H207576 \n8 \n \n \nbenefits until they reach the end of their healing period or until they return to work, whichever occurs \nfirst. Wheeler Construction Co. v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).  Dr. Wing’s records \nsupport the contention that claimant had not reached the end of his healing period until February 22, \n2023, and I am satisfied that it began on October 11, 2022.    \nRegarding past medical expenses, there was no bill from the VA for services it rendered to \nclaimant  for  this  injury.  The  I&O  Medical  Clinic  bills  were  paid  by  respondents.  The  only  bill \nsubmitted  by  claimant  is  the  one  from  Hampton  Road  Ortho  Spine  and  Sports  Med.    Claimant  is \nentitled to be reimbursed for any payments he made toward treatment of his compensable injury, and \nfor any future treatment as may be reasonable and necessary.\n2\n      \n \nORDER \n \n Respondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809.  \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $471.5 0. \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE \n \n \n2\n Neither the VA nor any private health insurance company was a party to this action.  Nothing about this order is to \nbe understood to absolve respondents from any responsibility it may have to make a reimbursement to either; I simply \ndon’t have the necessary information before me, and as such, that issue is among those that are reserved.","textLength":16086,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207576 WILLIE HINTON, Employee CLAIMANT B H I ENERGY INC., Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier RESPONDENT OPINION FILED SEPTEMBER 29, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Russellville, Pope County...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["wrist","back","strain","sprain","carpal tunnel"],"fetchedAt":"2026-05-19T23:03:21.427Z"},{"id":"alj-H107765-2023-09-29","awccNumber":"H107765","decisionDate":"2023-09-29","decisionYear":2023,"opinionType":"alj","claimantName":"Fred Jonte","employerName":"Distribution Solutions Inc","title":"JONTE VS. DISTRIBUTION SOLUTIONS INC. AWCC# H107765 SEPTEMBER 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JONTE_FRED_H107765_20230929.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JONTE_FRED_H107765_20230929.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H107765 \n \nFRED JONTE, EMPLOYEE   CLAIMANT \n \nDISTRIBUTION SOLUTIONS INC., EMPLOYER RESPONDENT \n \nCCMSI/INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED SEPTEMBER 29, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is represented by DANIEL E. WREN, Attorney, Little Rock, Arkansas, although not \nappearing. \n \nRespondents are represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n A hearing was conducted on September 21, 2023, to determine whether this claim should be \ndismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) and Commission Rule \n099.13. \nOn June 26, 2023, respondent submitted a letter to serve as a Motion to Dismiss, as claimant \ndied from causes unrelated to the subject claim. Claimant’s attorney responded by letter on July 31, \n2023, that he did not object to the matter being dismissed and provided a copy of the death certificate \ndemonstrating  that  claimant  died  on  March  5,  2023.    These  letters  and  the  death  certificate  were \nintroduced into the record.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the Respondent’s motion, the response  by \nclaimant’s  attorney  and  the  death  certificate, as  well  as  all  other  matters  properly  before  the \nCommission, I find that Respondent’s Motion to Dismiss this claim should be and hereby is granted.  \n\nJonte-H107765 \n \n2 \n \nThis dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":1907,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H107765 FRED JONTE, EMPLOYEE CLAIMANT DISTRIBUTION SOLUTIONS INC., EMPLOYER RESPONDENT CCMSI/INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED SEPTEMBER 29, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington County, Arkans...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:03:23.554Z"},{"id":"full_commission-H201972-2023-09-28","awccNumber":"H201972","decisionDate":"2023-09-28","decisionYear":2023,"opinionType":"full_commission","claimantName":"James Beauchamp","employerName":"Conagra Foods Packaged Foods, LLC","title":"BEAUCHAMP VS. CONAGRA FOODS PACKAGED FOODS, LLC AWCC# H201972 SEPTEMBER 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Beauchamp_James_H201972_20230928.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Beauchamp_James_H201972_20230928.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H201972 \n \nJAMES BEAUCHAMP, \nEMPLOYEE \n \nCLAIMANT \nCONAGRA FOODS PACKAGED FOODS, LLC,  \nEMPLOYER \n \nRESPONDENT \nBROADSPIRE SERVICES, INC., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 28, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \n \n ORDER \n The respondents in the above-styled matter have filed a MOTION \nFOR RECONSIDERATION AND REQUEST FOR DETERMINATION ON \nCONSTITUTIONALITY IN THE ALTERNATIVE.  The Full Commission \ndenies the respondents’ motion for reconsideration, and we find that the \nrespondents have not suffered a violation of their constitutional rights. \n The parties stipulated that the employee-employer-carrier \nrelationship existed on January 4, 2022.  The claimant testified that he fell \non his left knee and hip that day at work.  A pre-hearing order was filed on \nSeptember 15, 2022.  The claimant contended, among other things, that he \nwas “entitled to medical treatment for his right hip, and pelvic fractures in \n\nBEAUCHAMP - H201972   2\n  \n \n \naddition to treatment respondents are providing for his left hip.”  The \nrespondents contended that the claimant “did not suffer a right hip injury on \nor about January 4, 2022.”  The parties agreed to litigate issues including, \n“1.  Whether claimant sustained a compensable injury on January 4, 2022, \nregarding his right hip and pelvis.”  After a hearing, an administrative law \njudge filed an opinion on January 23, 2023.  The administrative law judge \nfound that the claimant proved he “suffered a compensable injury to his \nright hip and pelvis on January 5, 2022.”   \n The respondents appealed to the Full Commission.  The Full \nCommission filed an opinion on July 13, 2023 and found that the claimant \ndid not prove he sustained a compensable injury to his right hip or pelvis on \nJanuary 4, 2022.  However, we found that “the claimant’s right hip and \npelvis difficulties were a natural consequence of the January 4, 2022 \ncompensable injury to the claimant’s left hip.”  The Full Commission \nawarded temporary total disability benefits beginning February 15, 2022 \nuntil a date yet to be determined. \n In their motion for reconsideration, the respondents state that the Full \nCommission determined sua sponte that the claimant’s right hip and pelvis \ninjury was a natural consequence of the compensable left hip injury.  The \nrespondents assert that the Full Commission “interjected another \nissue/contention to justify awarding Claimant benefits.”  However, the \n\nBEAUCHAMP - H201972   3\n  \n \n \nArkansas Court of Appeals has held that Arkansas Workers’ Compensation \nRule 25, which defines the scope of review from the administrative law \njudge to the Full Commission, does not preclude the Commission from \nreviewing issues not appealed from or not raised at the administrative law \njudge level if it so chooses.  See CHI St. Vincent Infirmary v. McCauley, \n2023 Ark. App. 126, citing Pharmerica v. Seratt, 103 Ark. App. 9, 285 \nS.W.3d 699 (2008).  The Full Commission has the authority, and the duty, \nto render anew findings relevant to the claim before it.  Id. \n Moreover, we reiterate the claimant’s pre-hearing contention that he \nwas “entitled to medical treatment for his right hip, and pelvic fractures in \naddition to treatment respondents are providing for his left hip.”  The \nrespondents expressly argued in their brief on appeal to the Full \nCommission, “A.  CLAIMANT DID NOT ESTABLISH A CAUSAL LINK \nBETWEEN HIS ALLEGED RIGHT HIP INJURY AND THE \nCOMPENSABLE INJURY TO HIS LEFT HIP.”  In arguing that there was \nno “causal link” between the claimant’s alleged right hip injury and the \ncompensable injury to the claimant’s left hip, the respondents plainly and \nmanifestly raised to the Full Commission the pertinent issue of whether the \nclaimant’s right hip injury was a “natural consequence” of the compensable \nleft hip injury.  Stated another way, the issue of whether there was \"a causal \nconnection” between the compensable left hip injury and alleged right hip \n\nBEAUCHAMP - H201972   4\n  \n \n \ninjury was squarely and properly before the Full Commission.  The Full \nCommission recognized that the burden was on the claimant to establish \nthe necessary causal connection.  See Nichols v. Omaha Sch. Dist., 2010 \nArk. App. 194, 374 S.W.3d 178. \n The Full Commission therefore denies the respondents’ motion for \nreconsideration.  The respondents do not identify which section of the \nConstitution of the United States or Constitution of Arkansas have \npurportedly been violated by the Full Commission’s award of benefits in the \npresent matter.  Nevertheless, there is no evidence of record demonstrating \nthat the Full Commission has denied the respondents’ federal or state \nconstitutional rights.   \n IT IS SO ORDERED.     \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton concurs, in part, and dissent, in part. \n \nCONCURRING AND DISSENTING OPINION \n  I concur, in part, and dissent, in part, with the majority’s opinion.  \nSpecifically, I concur with the majority’s denial of the respondents’ motion \n\nBEAUCHAMP - H201972   5\n  \n \n \nfor reconsideration and finding that the respondents have not suffered a \nviolation of their constitutional rights.  \n  It is well settled that Arkansas Workers' Compensation Commission \nRule 25, defining the scope of review from the ALJ to the Commission, \ndoes not preclude the Commission from reviewing issues not appealed \nfrom or not raised at the ALJ level if it so chooses.  Pharmerica v. Seratt, \n103 Ark. App. 9, 285 S.W.3d 699 (2008).  The Commission reviews cases \nappealed to it de novo, and the duty of the Commission is not to determine \nwhether there was substantial evidence to support the ALJ's findings; \nrather, it must make its own findings in accordance with a preponderance of \nthe evidence.  Id.  (citing Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, \n792 S.W.2d 348 (1990).  Hence, the Commission has authority, and the \nduty, to render anew findings relevant to the claim before it.  Id. \nOur Rules and case law are clear that the Commission is \nempowered to raise relevant issues sua sponte on appeal.  CHI St. Vincent \nInfirmary Med Ctr. v. McCauley, 2023 Ark App. 126, 663 S.W.3d 411 \n(2023). \n However, I respectfully dissent from the finding of the majority that \nthe respondents “expressly argued in their brief on appeal to the Full \nCommission, ‘A. CLAIMANT DID NOT ESTABLISH A CAUSAL LINK \nBETWEEN HIS ALLEGED RIGHT HIP INJURY AND THE \n\nBEAUCHAMP - H201972   6\n  \n \n \nCOMPENSABLE INJURY TO HIS LEFT HIP,’” therefore “plainly and \nmanifestly” raising the issue of whether the claimant’s right hip injury was a \nnatural consequence of his compensable injury.  (P. 3).  This finding is not \nrelevant to the issue before the Commission and fails to address the \nrespondents’ position that “[t]he main thrust of the arguments made by \nClaimant seems to be that he injured his right hip in the initial incident but \ndid not discover that fact until a later date.”  The respondents did not raise \nor argue the issue of whether the claimant’s right hip injury was a natural \nconsequence of his compensable left hip injury.  \nFor the reasons stated above, I concur, in part, and dissent, in part, \nfrom the majority’s opinion. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":7758,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H201972 JAMES BEAUCHAMP, EMPLOYEE CLAIMANT CONAGRA FOODS PACKAGED FOODS, LLC, EMPLOYER RESPONDENT BROADSPIRE SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 28, 2023","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["knee","hip"],"fetchedAt":"2026-05-19T22:29:46.155Z"},{"id":"alj-H107092-2023-09-28","awccNumber":"H107092","decisionDate":"2023-09-28","decisionYear":2023,"opinionType":"alj","claimantName":"Rebecca Dorris","employerName":"Lake Hamilton Middle School","title":"DORRIS VS. LAKE HAMILTON MIDDLE SCHOOL AWCC# H107092 SEPTEMBER 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DORRIS_REBECCA_H107092_20230928.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DORRIS_REBECCA_H107092_20230928.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \nCLAIM NO. H107092 \nREBECCA A. DORRIS, EMPLOYEE          CLAIMANT \nLAKE HAMILTON MIDDLE SCHOOL, \nEMPLOYER \n \nRESPONDENT \nAR SCHOOL BOARDS ASSOC, INC., \nTHIRD PARTY ADMINISTRATOR \n \n \n    RESPONDENT \n  \nOPINION FILED SEPTEMBER 28, 2023 \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \nClaimant, pro se, not appearing. \nRespondents represented by Honorable Carol Lockard Worley, Attorney at Law, Little Rock, \nArkansas. \n Statement of the Case            \n  A hearing was held on September 20, 2023, in the present matter pursuant to Dillard v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 SW. 3d 287 (2004), for a determination \nof whether the above-referenced case should be dismissed for failure to prosecute under the \nprovisions of Ark. Code Ann, S 11-9-702 (Repl. 2012) and Arkansas Workers' Compensation \nCommission Rule 099.13. \n  Appropriate Notice of this hearing was provided to all parties to their last known address, \nin the manner prescribed by law. \n  The record consists of the transcript of the September 20, 2023, hearing and the documents \nheld therein. The Respondents introduced one exhibit, a Respondents' Hearing Exhibit, consisting \nof nine numbered pages, which has been marked as Respondents' Exhibit l. Additionally, the \n\nDorris - H107902 \n2 \nentire Commission's file has been made a part of the record. It is hereby incorporated into the \nhearing transcript by reference. \nProcedural History \nOn September 28, 2021, the Claimant filed with the Commission a claim for Arkansas \nworkers' compensation benefits by way of a Form AR-C. The Claimant alleged that she sustained \na compensable injury to her knee in April 2019 while working for the respondent-employer. The \nClaimant asked for both initial and additional workers' compensation benefits in the form of \nmedical expenses and additional medical expenses. \nThe claims adjuster filed a Form AR-2 with the Commission on September 28, 2021, \naccepting this as a compensable medical only claim. \nOn  that  same  day,  the  Claimant  wrote  to  the  Commission  requesting  a  change  of \nphysician from Dr. Christopher Young to Dr. Micheal Hubbard. A Change of Physician Order \nwas entered by the Commission's Medical Cost Containment Administrator on October 7, 2021. \nSubsequently, there was no action taken by the Claimant to resolve her claim, and nor \ndid she request a hearing. \nTherefore, the Respondents filed a Motion to Dismiss with the Commission on July 5, \n2023. The Respondents' pleading included a certificate of service to the Claimant affirming that \nthey sent a copy of the above motion to the Claimant via certified mail through the United States \nPostal Service. \nThe Commission sent a letter-notice on July 7, 2023, to the Claimant by mailing it to her \nlast known address via first-class and certified mail. Per this correspondence, the Commission \ngave the Claimant a deadline of twenty days to file a written response to the Respondents' \nmotion. \n\nDorris - H107902 \n3 \nOn July 10, 2023, the above letter was delivered to the Claimant. The return receipt bears \nthe Claimant's signature, which included only her last name. \n         Yet, there has been no response from the Claimant. \nTherefore, pursuant to a Notice of Hearing dated August 14, 2023, the Commission \nnotified the parties that a hearing was scheduled to address the Respondents' Motion to Dismiss. \nThe notice was sent to the Claimant via first-class and certified mail to the same address as \nbefore. Said hearing was scheduled for September 20, 2023, at the Commission in Little Rock. \nThe hearing notice that the Commission sent to the Claimant via first-class mail has not \nbeen returned to the Commission. In this instance, the certified Notice of Hearing letter was \nclaimed by the Claimant on August 16, 2023; and as before the first-class notice was not returned \nto the Commission. The evidence preponderate that the Claimant received notice of the hearing. \nStill, there has been no response from the Claimant. \nSubsequently, a hearing was in fact conducted on the Respondents' motion for dismissal \nas scheduled. Yet, the Claimant did not attend the dismissal hearing despite having received \nproper notice of the hearing. However, the Respondents appeared through their attorney. \nCounsel noted that it has been more than six months since the filing of the claim, and a \nhearing has not been• requested by the Claimant. The Respondents' attorney also noted that the \nClaimant has not made any effort to move forward with this claim. Therefore, counsel moved \nthat  this  claim  be  dismissed  under  Ark.  Code  Ann.  511-9-702  or  Arkansas  Workers' \nCompensation Commission Rule 099.13, due to a lack of prosecution of the case by the Claimant. \nDiscussion \nThe record before me proves that the Claimant has failed to promptly prosecute her claim \nfor workers' compensation benefits. The Claimant has not requested a hearing since the filing of \n\nDorris - H107902 \n4 \nthe Form AR-C in September 2021. More importantly, the Claimant did not appear at the hearing \nto object to her claim being dismissed. \nHence, the evidence proves that the Claimant has failed to request a hearing on her claim. \nUnder these circumstances, I am compelled to find that the evidence preponderates that the \nClaimant has failed to prosecute her claim for workers' compensation benefits in the proper \nmanner set forth under the law. Of note, I am persuaded that the evidence before me proves that \nthe Claimant has abandoned her claim for workers' compensation benefits. \nTherefore, per Ark. Code Ann. 51 1-9-702 and Rule 099.13 of this Commission, I find \nthat this claim should be and is hereby respectfully dismissed, without prejudice to the refiling \nof it within the limitation period specified by law. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn the basis of the record as a whole, I hereby make the following findings of fact and \nconclusions of law in accordance with Ark. Code Ann. 511-9-704 (Repl. 2012): \n    1. The Arkansas Workers' Compensation Commission has jurisdiction of this \n    claim. \n \n2. The Respondents filed with the Commission, a motion for dismissal of \n   this claim due to a lack of prosecution, for which a hearing was held. \n \n 3.  The Claimant has not requested a hearing since the filing of her Form \n   ARC, which was done in in September 2021. Hence, the evidence  \n   preponderates that the Claimant has failed to timely prosecute her claim. \n 4. Appropriate Notice of the dismissal hearing was had on all parties to their \n   last known address, in the manner prescribed by law.  \n 5. The Respondents' Motion to Dismiss this claim for a lack of prosecution \n   is hereby granted, without prejudice, per Arkansas Code Ann. 51 1-9-702 \n   and Commission Rule 099.13, to the refiling of it within the limitation \n   period specified by law. \n\nDorris - H107902 \n \n5 \nORDER  \nFollowing the findings of fact and conclusions of law set forth above, this claim is \nhereby dismissed per Ark. Code Ann. 511-9-702 and Rule 099.13, without prejudice, to the \nrefiling of it, within the limitation period specified by law. \nIT IS SO ORDERED: \n \n                                                                                                                                      \n                                                          ____________________________________ \n                                                              CHANDRA L. BLACK \n                                                              ADMINISTRATIVE LAW JUDGE","textLength":7655,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H107092 REBECCA A. DORRIS, EMPLOYEE CLAIMANT LAKE HAMILTON MIDDLE SCHOOL, EMPLOYER RESPONDENT AR SCHOOL BOARDS ASSOC, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 28, 2023 Hearing held before Administrative Law Judge Chandra L. Black, ...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:03:13.078Z"},{"id":"alj-H204215-2023-09-28","awccNumber":"H204215","decisionDate":"2023-09-28","decisionYear":2023,"opinionType":"alj","claimantName":"Richard Oliver","employerName":"Ark. Dept. Of Envir. Quality","title":"OLIVER VS. ARK. DEPT. OF ENVIR. QUALITY AWCC# H204215 SEPTEMBER 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Oliver_Richard_H204215_20230928.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Oliver_Richard_H204215_20230928.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204215 \n \n \nRICHARD G. OLIVER, EMPLOYEE CLAIMANT \n \nARK. DEPT. OF ENVIR. QUALITY, \n EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIV., \n CARRIER/THIRD-PARTY ADMIN. RESPONDENT \n \n \nOPINION FILED SEPTEMBER 28, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on August 24, 2023, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant   represented   by   Mr.   Mark   Alan   Peoples,   Attorney   at   Law,   Little   Rock, \nArkansas. \n \nRespondents  represented  by  Mr.  Charles  H.  McLemore,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On  August  24,  2023,  the  above-captioned  claim  was  heard  in  Little  Rock, \nArkansas.  A prehearing conference took place on July 31, 2023  .  The Prehearing Order \nentered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection  as \nCommission Exhibit 1.  At the hearing, the parties confirmed that the stipulations, issue, \nand respective contentions, as amended, were properly set forth in the order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  With two additional ones reached at the hearing, they are the following, which \nI accept: \n\nOLIVER – H204215 \n \n2 \n \n1. The  Arkansas  Workers’  Compensation  Commission  (the “Commission”) \nhas jurisdiction over this claim. \n2. The  employee/employer/carrier/third-party  administrator  relationship  was \nin place on May 31, 2022, when Claimant sustained a compensable injury \nto his back. \n3. Respondents  accepted  this  claim  as  compensable  and  paid  medical  and \nindemnity benefits pursuant thereto. \n4. Claimant’s  average  weekly  wage  entitles  him  to  compensation  rates  of \n$408.00/$306.00. \n5. The change-of-physician rules apply in this matter. \nIssue \n At the hearing, the parties discussed the issue set forth in Commission Exhibit 1.  \nThe following was litigated: \n1. Whether  Claimant  is  entitled  to  additional  treatment  of  his  stipulated \ncompensable   back   injury   in   the   form   of   a   referral   to   Dr.   Kenneth \nRosenzweig for the purpose of assignment of an impairment rating. \n All other issues have been reserved. \nContentions \n The  respective  contentions  of  the  parties,  following  amendment  at  the  hearing, \nread as follows: \n\nOLIVER – H204215 \n \n3 \n \n Claimant: \n 1. Claimant  contends  that  he  is  entitled  to  medical  treatment  relative  to  his \nwork injuries.  This is in the form of a referral to Dr. Kenneth Rosenzweig \nfor the purpose of assigning an impairment rating.  Claimant’s authorized \ntreating physician, Dr. Ali Raja, was the one who made this referral. \n Respondents: \n1. Respondents  contend  that  Claimant  reported  having  an  injury  to  his  low \nback   occurring   on  May   31,   2022,   which   Respondents   accepted  as \ncompensable  and  provided  medical  treatment  that  was  reasonable  and \nnecessary for that injury. \n2. Claimant    was    provided    treatment    with    Dr.    Michael    Cassat    by \nRespondents.  This treatment was conservative in nature and included an \nMRI and physical therapy, which Claimant denied gave him relief.  He had \na stroke prior to the date of injury, and was thus unable to undergo medial \nbranch block injections and a rhizotomy because he was unable to come \noff  of  this  anti-coagulation  medication  prescribed  for  his  atrial  fibrillation \nand  cerebral  vascular  accident.    Claimant  was  released  at  maximum \nmedical  improvement  on  September  27,  2022,  by  Cassat  with  zero \npercent (0%) impairment and no work restrictions. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \n\nOLIVER – H204215 \n \n4 \n \nthe  testimony  of  Claimant  and  to  observe  his  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to additional treatment of his compensable back injury in the form \nof a  referral  to  Dr.  Kenneth  Rosenzweig  for  the  purpose  of  determining \nwhether he should be assigned a permanent impairment rating. \nADJUDICATION \nSummary of Evidence \n Claimant was the sole hearing witness. \n In  addition  to  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence  in this  case  were  Claimant’s  Exhibit  1,  a  compilation  of  his  medical  records, \nconsisting  of one  (1)  index  page  and  twenty-three  (23)  numbered  pages  thereafter; \nRespondents’ Exhibit  1,  another  compilation of  Claimant’s  medical  records, likewise \nconsisting of one (1) index page and twenty-three (23) numbered pages thereafter; and \nRespondents’ Exhibit 2, forms, correspondence, and other documentation related to this \nclaim, consisting of one (1) index page and nineteen (19) numbered pages thereafter. \n\nOLIVER – H204215 \n \n5 \n \nAdjudication \n Introduction.    As  the  parties  have  stipulated—and  I  have  accepted—Claimant \nsustained a compensable injury to his back on May 31, 2022.  In this proceeding, he is \nseeking  additional  treatment.    This  would  come  in  the  form  of  an  evaluation  by  Dr. \nRosenzweig  for  the  purpose  of  determining  whether  and  to  what  extent  he  has \nsustained permanent impairment to his back.  Claimant was referred to Rosenzweig by \nDr.  Raja,  his  current  authorized  treating  physician.    He  began  treating  with  Raja  via a \none-time  change  of  physician.    Respondents  have  denied  that  Claimant is  entitled  to \nthis evaluation by Dr. Rosenzweig. \n Evidence.   In  the  following  exchange,  Claimant  related  how  his  compensable \ninjury occurred: \nQ. You were working for the Department of Environmental [Quality], is \nthat right? \n \nA. Yes, sir. \n \nQ. What was your job there? \n \nA. I was a maintenance technician. \n \nQ. Describe,  and  you  don’t  need  to  go  into  a  whole  lot  of  depth,  but \nbasically what did you do? \n \nA. Lights and plumbing, moving stuff. \n \nQ. Moving furniture and things like that? \n \nA. Yes, sir. \n \nQ. Okay.  And you were performing that job May 31 of 2002, correct? \n \nA. Yes, sir. \n\nOLIVER – H204215 \n \n6 \n \n \nQ. You got hurt.  What happened? \n \nA. We were moving an entire floor of cubicles downstairs and out the \ndoors and I hurt my back. \n \nQ. It would be because you were into the process of moving one of the \ncubicles? \n \nA. Yes, and they’re big cubicles.  There’s big filing cabinets, big pieces \nof cubicles, the big heavy things.  They countertops. \n \nQ. You hurt your low back? \n \nA. Yes, sir. \n \nQ. Okay.  And nobody tried to say you didn’t get hurt on the job? \n \nA. No, sir. \n \n Initially,  Claimant  was  sent  to  Healthcare  Express.    The  record  of  his  June  1, \n2022, visit to that clinic shows that he was lifting heavy boxes at work the previous day.  \nHe  awoke the morning  of his  visit  with  sharp,  severe  pain  in  his  lower  back.    Because \nhe   had   a   cardiac   ablation   scheduled,   he   could   not   be   given   non-steroid   anti-\ninflammatory medication.  Claimant declined to undergo x-rays or physical therapy.  On \na form supplied by Respondents to the clinic and dated June 1, 2022, treating personnel \nstated    that    spasms    of    the    paraspinal    muscles    of    the    lumbar    spine    were \nobserved/palpated. \n When  Claimant  first  went  to  Dr.  Cassat  on  June  7,  2022,  he  reported  that  the \nback pain began in the middle of the night after he had “lift[ed] multiple heavy objects.”  \nX-rays  were  negative  for  any  acute  process.    The  doctor  assessed  him  as  having \n“[c]hronic  low  back  pain  without  sciatica,”  and  gave  him  a  15-pound  lifting  restriction.  \n\nOLIVER – H204215 \n \n7 \n \nClaimant underwent a physical therapy evaluation on June 22, 2022.  He was noted to \nhave tenderness to palpation in the right paraspinals.  The physical only helped “[a] little \nbit,” per Claimant. \n On  July  28,  2022,  Claimant  underwent  a  lumbar  MRI.    The  report  reads  in \npertinent part: \nFINDINGS: \n \n. . . \n \nL3-4:  Mild diffuse disc bulge indenting the thecal sac without spinal canal \nstenosis.  There is mild left neural foraminal narrowing. \n \nL4-5:  Mild diffuse disc bulge indenting the thecal sac without spinal canal \nstenosis.    The  disc  contacts  but  does  not  displace  the  transiting  left  L5 \nnerve root in the lateral recess.  There is mild neural foraminal narrowing.  \nThere is mild facet arthrosis. \n \nL5-S1:    Mild  diffuse  disc  bulge  indenting  the  thecal  sac  without  spinal \ncanal  stenosis.    A  small  [illegible  word]  paracentral  posterior  annular \nfissure  is  noted  without  protrusion  of  disc  material.    There  is  no  neural \nforaminal narrowing.  There is mild facet arthrosis. \n \n. . . \n \nIMPRESSION: \nMild  lumbar  spondylosis  at  the  L3-4,  L4-5  and L5-S1  levels  without \nsignificant spinal canal stenosis or neural foraminal narrowing.  Disc bulge \nat  L4-5  contacts  but  does  not  displace  the  transiting  left  L5  nerve  root  in \nthe lateral recess. \n \nCassat’s report of his August 9, 2022, visit with Claimant reads: \nHe returns today to review his lumbar spine MRI which shows some small \ndisc  herniations  [and]  considerable  foraminal  stenosis.  He  has  fluid  in \nhis facets at multiple levels with some degenerative change present.  \nWe discussed that this could be indicative [of] an acute exacerbation \n[of]   some   facet   pathology.  Given   that   he   [had]   no   significant \nsymptoms  before  his  injury  this  is  greater  than  50%  likely  to  be \n\nOLIVER – H204215 \n \n8 \n \ncausative [of] his symptoms.  We discussed medial branch blocks with \nrhizotomy.  He would like to return to work without restrictions which I think \nis reasonable. \n \n(Emphasis added)  The doctor gave him a full-duty release that same day. \n Claimant admitted that he sought a release.  He testified that he only returned to \nwork  because  he  was  threatened  with  termination.    However,  he  went  on  what  he \ntermed “very  limited  duty”  when  he  went  back  to  his  job  for  the  Department  of \nEnvironmental Quality: \nQ. What kind of work were you doing? \n \nA. Sitting there.   I  didn’t  really  do  a  lot.    Just  things  that,  you  had  the \nability  you  could  go  around  they’d  make  people  report  when \nsomething needs to be maintained in the building.  I would check it \nand go do it. \n \nSince  that  time,  he  has  left  employment  with  the  State  of  Arkansas.    Claimant  sought \nemployment thereafter through a temp agency, but was unsuccessful.  He has filed for \nSocial   Security   disability   benefits,   based   upon   his   pre-existing   cerebrovascular \ncondition. \n On September 27, 2022, Dr. Cassat wrote: \nOur discussion today was that he continues to have significant axial back \npain with activity [and] has failed conservative treatment measures, cannot \ntolerate   anti-inflammatories   and   is   not   currently   able   to   go   off   of \nanticoagulation  [medication]  even  with  bridging  for  medial  branch  blocks \nor a rhizotomy.  At this point [I] have no further treatment options for him, \nhe  understands  this.    He  will  continue  to  work  on  being as  active, he  will \nfollow up with me if he would like to proceed with intervention in the future.  \nHe   states   that   he  never   will   get   off  of  anticoagulation   [medication] \nsecondary  to  stroke  risk.    He  is  at  MMI  with  0%  permanent  impairment \nrating.  He has no work restrictions.  He can follow up with me as needed. \n \n\nOLIVER – H204215 \n \n9 \n \n Claimant   obtained   from   the   Medical   Cost   Containment   Division   of   the \nCommission on December 9, 2022, an order changing his authorized treating physician \nfrom  Dr.  Cassat  to  Dr.  Raja.    After  Raja’s  examination  of  Claimant  on  December  15, \n2022, he stated in pertinent part: \nAssessments \n1. Low back pain, unspecified – M54.50 (Primary) \n2. Other intervertebral disc displacement, lumbar region – M51.26 \n3. Spondylosis  without  myelopathy  or  radiculopathy,  lumbar  region – \nM47.816 \n \nReview of Radiological Studies: \nMRI  of  the  lumbar  spine  without  contrast  done  7/28/2022  at  UAMS \nshowed  mild  lumbar  spondylosis  at  L3-L4,  L4-L5,  and  L5-S1  without \nsignificant  spinal  canal  stenosis  or  neuroforaminal  stenosis.    There  is  a \ndisc  bulge  at  L4-L5  that  contacts  but  does  not  displace  the  transiting  left \nL5 nerve root in the lateral recess. \n \n \nTreatment \n1. Low back pain, unspecified \nClinical  notes:    I  personally  reviewed  outside  records  from  the \nreferring  physician  as  well  as  the  patient’s  past  medical,  surgical, \nfamily,  family,  and  social  history  and  current  medications  in  clinic \ntoday.  I also personally reviewed the  patient's radiological images \nand  imaging  reports  in  clinic  today  and  correlated  these  with  the \npatient’s current symptoms and exam findings to formulate the plan \nof care. \n \nI had a detailed discussion with the patient regarding findings of the \nhistory  and  physical  examination  and  radiological  studies.    We \ndiscussed the need for  lifestyle modifications including the need to \nbe  careful  with  no  excessive  pushing,  pulling,  bending,  weight \nlifting,  strenuous  activities  and  not  lifting  anything  more  than  5-10 \npounds. \n \nWe   also   discussed   management   options   and   plans   including \nsurgical versus nonsurgical measures.  We discussed the finding of \nmultilevel degenerative changes without definite neural \ncompromise or  evidence  of  a  fracture  on  the  patient’s  most  recent \n\nOLIVER – H204215 \n \n10 \n \nMRI of the lumbar spine done 7/28/22 and my recommendation not \nto proceed with any neurosurgical intervention at this time. \n \n Dr. Raja on May 9, 2023, referred Claimant to Dr. Rosenzweig.  The reason that \nhe listed for the referral was “[i]mpairment rating.” \n According  to  Claimant,  his  back  condition  is  so  severe  at  present  that  he  is \nincapable of putting on his pants.  He is unable to run.  While he can walk, sometimes \nfor  distances  of  up  to two  miles,  doing  so  results  in his  experiencing a  lot  of  pain.    He \nswims  as  well.   Per  Claimant,  he  is  attempting  to  exercise  in  or  to  keep  trim.    The \nfollowing exchange occurred on cross-examination: \nQ. Well, you don’t look very fat; you look pretty thin. \n \nA. I’m gaining a lot of weight in the last year. \n \nQ. How much do you weigh? \n \nA. About 152 pounds. \n \n As alluded to  in the medical records, he takes  an anti-coagulant, Eliquis, due to \nhis  afebrile  condition.    Because  of  this,  he  is  unable  to  undergo  pain  management \nprocedures such as rhizotomies.  He fears having a stroke. \n Discussion.  Claimant’s testimony is that he wishes to see Dr. Rosenzweig—the \nphysician to whom his authorized treating physician, Dr. Raja, made a referral.  I credit \nthis.   A  claimant’s  testimony  is  never  considered  uncontroverted.   Nix  v.  Wilson  World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \n\nOLIVER – H204215 \n \n11 \n \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only those \nportions of the testimony that it deems worthy of belief.  Id. \n Arkansas  Code  Annotated  Section 11-9-508(a)  (Repl.  2012)  states  that  an \nemployer shall provide for an injured employee “such medical . . . services . . . as may \nbe reasonably necessary in connection with the injury received by the employee.”  See \nWal-Mart  Stores,  Inc.  v.  Brown,  82  Ark.  App.  600,  120  S.W.3d  153  (2003).    The \nclaimant  must  prove  by  a  preponderance  of  the  evidence  that  the  subject  medical \ntreatment  is  reasonable  and  necessary.   Id.; Geo  Specialty  Chem.  v.  Clingan,  69  Ark. \nApp.  369,  13  S.W.3d  218  (2000).   The  standard  “preponderance  of  the  evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk.  373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947).  What constitutes reasonable and necessary medical treatment is a \nquestion  of  fact  for  the  Commission.   White  Consolidated  Indus.  v.  Galloway,  74  Ark. \nApp.  13,  45  S.W.3d  396  (2001); Wackenhut  Corp.  v.  Jones,  73  Ark.  App.  158,  40 \nS.W.3d  333  (2001).  In  order  to  prove  his  entitlement  to  the  requested  treatment, \nClaimant must also prove that it is causally related to his  stipulated compensable back \ninjury  of  May  31,  2022.   See  Pulaski  Cty.  Spec.  Sch.  Dist.  v.  Tenner,  2013  Ark.  App. \n569, 2013 Ark. App. LEXIS 601.  Dr. Rosenzweig has not been asked to merely conduct \na  records  review;  it  has  clearly  been  evinced  that  he  will  physically  examine  Claimant, \nwith   the   results  of  said   examination   forming   at   least  part   of   the   basis   for   his \n\nOLIVER – H204215 \n \n12 \n \ndetermination  of  whether,  and  to  what  extent,  Claimant  has  sustained  permanent \nimpairment.   Such examination  is  clearly a “medical  service,”  falling  within  the purview \nof  § 11-9-508(a).  Reasonable  and  necessary  medical  treatment  includes,  inter  alia, \nservices employed to diagnose the “nature and extent” of a compensable injury.  See, \ne.g.,  Ingle  v.  Hazen  Sch.  Dist.,  2023  AR  Wrk.  Comp.  LEXIS  174,  Claim  No.  H204037 \n(Full Commission Opinion filed May 24, 2023)(emphasis added). \n The  Commission  is  authorized  to  accept  or  reject  a  medical  opinion  and  is \nauthorized  to  determine  its  medical  soundness  and  probative  value.   Poulan  Weed \nEater  v.  Marshall,  79  Ark.  App.  129,  84  S.W.3d  878  (2002); Green  Bay  Packing  v. \nBartlett,  67  Ark.  App.  332,  999  S.W.2d  692  (1999).    Dr.  Cassat  has  opined  that \nClaimant’s impairment rating concerning his stipulated compensable back injury should \nbe zero percent (0%).  But I note that while the radiologist who signed off on the lumbar \nMRI  report,  Dr.  Prashanth  Damalcheruvu,  identified  the  findings  at  L3-S1  to  be “[m]ild \ndiffuse  disc  bulge[s],”  Cassat  termed  them “small  disc  herniations  .  .  .  .”  (Emphasis \nadded)  In light of this apparent discrepancy, and in view of Dr. Cassat’s opinion—which \nI  credit—that  Claimant’s  work-related  injury  is  the  cause  of  his  spinal  symptoms,  an \nevaluation  by  Dr.  Rosenzweig  to  determine  whether  Cassat’s  rating  assessment  was \nappropriate is warranted.  I credit Claimant’s testimony as outlined above concerning his \npain  and  physical  problems  caused  by  the  back  injury.    The  preponderance  of  the \nevidence establishes that the referral of Claimant to Dr. Rosenzweig for this  purpose is \nreasonable and necessary. \n\nOLIVER – H204215 \n \n13 \n \nCONCLUSION AND AWARD \n Respondents are directed to pay/furnish benefits in accordance with the findings \nof fact and conclusions of law set forth above.  All accrued sums shall be paid in a lump \nsum  without  discount,  and  this  award  shall  earn  interest  at  the  legal  rate until  paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2002).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":20416,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H204215 RICHARD G. OLIVER, EMPLOYEE CLAIMANT ARK. DEPT. OF ENVIR. QUALITY, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIV., CARRIER/THIRD-PARTY ADMIN. RESPONDENT OPINION FILED SEPTEMBER 28, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II ...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","lumbar","fracture"],"fetchedAt":"2026-05-19T23:03:15.147Z"},{"id":"alj-H202251-2023-09-28","awccNumber":"H202251","decisionDate":"2023-09-28","decisionYear":2023,"opinionType":"alj","claimantName":"Larry Rodebaugh","employerName":"Ark. Industrial Machinery, Inc","title":"RODEBAUGH VS. ARK. INDUSTRIAL MACHINERY, INC. AWCC# H202251 SEPTEMBER 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Rodebaugh_Larry_H202251_20230928.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Rodebaugh_Larry_H202251_20230928.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H202251 \n \nLARRY RODEBAUGH (DEC’D), EMPLOYEE CLAIMANT \n \nARK. INDUSTRIAL MACHINERY, INC., \nEMPLOYER RESPONDENT \n \nACCIDENT FUND INSURANCE CO. AMERICA,  \nCARRIER/TPA                       RESPONDENT \n \nOPINION FILED SEPTEMBER 28, 2023 \n \nHearing before Administrative Law Judge Steven Porch on September 13, 2023, in Little \nRock, Arkansas. \n \nClaimant represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents were represented by Ms. Karen H. McKinney, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A full  hearing  was  held  on  this  claim  on  September  13,  2023.    Claimant  was \nrepresented  by  Mr.  Gary  Davis,  Attorney  at  Law,  Little  Rock,  Arkansas;  Respondents \nwere represented by Ms. Karen McKinney, Attorney at Law, Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n \n2. An  employer/employee  relationship  existed  on  December  7,  2021, \nwhen Claimant sustained a compensable injury to his left elbow and \narm. \n \n3. Respondents  accepted  the  claim  as  compensable  and  paid  all \nbenefits through date of Claimant’s death on March 13, 2022. \n \n 4.  The parties  will  stipulate  to  Claimant’s  average  weekly  wage  and \ncompensation rates on or before the hearing date. \n \n\nRODEBAUGH H202251 \n \n2 \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether  the  Claimant’s  death  resulted  from  a  stroke  on  3/13/22  associated \nwith surgery performed 3/11/2022. \n \n2.  Whether  Claimant’s  wife,  Brenda  Young,  is  entitled  to  dependency  death \nbenefits. \n \n3.  Whether Claimant’s funeral expenses should be paid by Respondents. \n \n4.  Attorney’s fees.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s  and  Respondents’  contentions  are  set  out  in  their  responses  to  the \nPrehearing Questionnaire.  Said contentions are hereby incorporated by reference.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \nClaimant and Respondents’ post hearing briefs that are blue-backed and made a part of \nthis  record  and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity  to  hear  the  testimony  of  the  Claimant’s  widow,  Brenda  Young,  the  sole \nwitness in this claim, and observe her demeanor, I hereby make the following findings of \nfact and conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1.  The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n\nRODEBAUGH H202251 \n \n3 \n \n3.  The Claimant’s estate has proven by the preponderance of the evidence that \nthe  cause  of  Claimant’s  death  was  multiple  cerebral  infarctions  occurring  on \nMarch 13, 2022, approximately 3 days after elbow surgery. \n4.   The  Claimant’s  estate  has proven  beyond  a  preponderance  of  the  evidence \nthat  his  death  on  March  13,  2022,  from  multiple  cerebral  infarctions  was  a \ncompensable  consequence  of  his  compensable  December  7,  2021,  injury  to \nhis left elbow and arm. \n5.   Claimant’s  estate  has  proven  by  the  preponderance  of  the  evidence  that \nBrenda  Young,  wife  and  now  widower  of  Claimant,  is  entitled  to  benefits  in \naccordance with A.C.A. §11-9-715 (Repl. 2002). \n6.  Claimant’s  estate  has  proven  by  the  preponderance  of  the  evidence  that  its \nattorney is entitled to controverted attorney fees. \nCASE IN CHIEF \nSummary of Evidence \n The  sole  witness  at  the  hearing  was  the  Claimant’s  widow,  Brenda  Young.  In \naddition  to  the  prehearing  order  discussed  above, I  also  have  admitted  into  evidence \nClaimant’s   and   Respondent’s exhibits   that   were   properly   admitted   before   the \nCommission. Claimant suffered a compensable injury to his left elbow and arm during the \ncourse and scope of his employment with Respondent. Claimant needed surgery to repair \nthe tendons in his left arm. The Claimant had surgery on March 11, 2022, at the Arkansas \nSurgery Center. The Claimant, according to his widow, appeared to be having a stroke. \nThe left side of his face was drooping, and his words were slurred. Dr. Joshua Smith, an \nanesthesiologist,  evaluated  claimant  and  stated  that  it  was  not  a  stroke  but Horner’s \n\nRODEBAUGH H202251 \n \n4 \n \nSyndrome from the nerve block in the left clavicle area. Claimant was discharged, with \nobjections, by the patient’s wife and now widow. The symptoms appeared to have cleared \nup by the time of discharge.  \nThe  next  morning  the  Claimant  was  transported  by  ambulance  to  the  Arkansas \nHeart Hospital in Bryant, Arkansas. He was again showing symptoms of what appeared \nto be a stroke such as left facial droop, weakness in his left leg, and some slurred speech. \nThe Claimant remained at the Bryant Heart Hospital for approximately 1 to 1.5 hours and \nwas  transported  by  ambulance  to  CHI  Saint  Vincent  Hospital  in  North  Little  Rock, \nArkansas. The Claimant died approximately one day after being admitted into CHI Saint \nVincent Hospital. The Claimant’s cause of death was determined to be multiple cerebral \ninfarctions which all parties did not dispute as the cause of death.  \nThe Respondents argue that the stroke like symptoms or Horner’s Syndrome   had \nresolved. Respondents further argue that Claimant had a CPAP machine but didn’t use it \nwhile he was in the hospital.  The Respondents’ strongest argument was that the multiple \ncerebral infarctions were not a complication of Claimant’s recent repair of his left triceps \nsurgery. The Respondents rely on Dr. Adedamola Adepoju, Neurosurgeon, report, dated \nMarch 22, 2022, that denies a connection between Claimant’s recent left triceps surgery \nand his death. The Respondents also used Dr. Barry D. Baskins report stating that “within \na reasonable medical certainty that Mr. Rodebaugh [Claimant] died as a result of a stroke \nrelated to atherosclerotic cardiovascular disease as outlined in his autopsy.” Dr. Baskins \ncontinued,  “There  was  no  clear  indication,  based  on  my  review  of  the  records  and \nautopsy, that Mr. Rodebaugh’s death was the result of surgical complication or the result \nof his work injury.” Dr. Baskins based his opinion on the Claimant’s extensive records, \n\nRODEBAUGH H202251 \n \n5 \n \noperative note, and his autopsy report. The autopsy was performed by Dr. Frank Paretti, \nForensic  Pathologist.  Claimant’s  estate  lawyer  counters  with  signed  releases  warning \nClaimant that strokes are a risk that can occur from his left triceps surgery.  \nAdjudication \n A. Compensable Consequence \n Claimant’s  estate  has  contended  that  on  March 11,  2021,  immediately  after \nundergoing surgery that had been prescribed by his authorized treating physician for his \ncompensable  left  elbow  and  arm  injury,  Claimant  experienced  what  appeared to  be  a \nstroke and was later officially diagnosed as multiple cerebral infarctions that resulted in \nhis death.  The estate has argued that his multiple cerebral infarctions and resulting death \nwere compensable consequences of his compensable injury. \n If  an  injury  is  compensable, every  natural  consequence of  that  injury  is  likewise \ncompensable.   Air  Compressor  Equip.  Co.  v.  Sword,  69  Ark.  App.  162,  11  S.W.3d  1 \n(2000); Hubley v. Best West. Governor’s Inn, 52 Ark. App. 226, 916 S.W.2d 143 (1996).  \nThe test is whether a causal connection between the two episodes exists.  Sword, supra; \nJeter  v.  McGinty  Mech.,  62  Ark. App.  53, 968  S.W.2d  645  (1998).   The existence  of  a \ncausal  connection  is  a  question  of  fact  for  the  Commission.   Koster  v.  Custom  Pak  & \nTrissel, 2009 Ark. App. 780 (2009).  It is generally a matter of inference, and possibilities \nmay  play  a  proper  and  important  role  in  establishing  that  relationship.   Osmose  Wood \nPreserving v. Jones, 40 Ark. App. 190, 843 S.W.2d 875 (1992).  A finding of causation \nneed not be expressed in terms of a reasonable medical certainty where supplemental \nevidence  supports  the  causal  connection.   Koster,  supra; Heptinstall  v.  Asplundh  Tree \nExpert Co., 84 Ark. App. 215, 137 S.W.3d 421 (2003). \n\nRODEBAUGH H202251 \n \n6 \n \n Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2002), a claimant has the burden of \nestablishing  the  existence  of  a  compensable  consequence  by  a  preponderance  of  the \nevidence.  This standard means the evidence having greater weight or convincing force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415 (2009) (citing Smith v. Magnet Cove \nBarium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947)). \n A  compensable  consequence  must  be  established  utilizing  all  the  statutory \nelements  of  compensability.   Burkett  v.  Tiger  Mart,  Inc., 2009  AWCC  70,  Claim  No. \nF608022 (Full Commission Opinion filed May 4, 2009), aff’d in part and rev’d in part on \nother grounds, 2009 Ark. App. 93, 304 S.W.3d 2; Jones v. B.A.E. Sys., 2004 AWCC 81, \nClaim  Nos.  F001696  &  F212243  (Full  Commission  Opinion  filed  May  6,  2004).    This \nincludes the requirement that there be medical evidence of an injury support by objective \nfindings.   Malone  v.  Mid-South  Mfg.,  Inc.,  2003  AWCC  82,  Claim  No.  F100223  (Full \nCommission Opinion filed April 28, 2003). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., 72 \nArk.  App.  309,  37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness but may accept and translate \ninto findings of fact only those portions of the testimony that it deems worthy of belief.  Id. \n Claimant’s  medical  records  contain  objective  findings  that  he  suffered  a  serious \ninjury to his left elbow and arm that required surgery. There is no need to go into the finite \ndetails of such injury since both parties have stipulated that the Claimant had sustained \na  compensable  injury  to  his  left  elbow  and  arm.  The  Commission  has  accepted  this \n\nRODEBAUGH H202251 \n \n7 \n \nstipulation and finds by the preponderance of the evidence that Claimant’s injury to his \nleft  elbow  and  arm  are  compensable.  Thus,  compensability  has  been  fully  established \nand will not be further addressed. The issue now to be addressed is whether Claimant’s \ndeath is a compensable consequence of his compensable injury. \n The  Commission  is  authorized  to  accept  or  reject  a  medical  opinion  and  is \nauthorized to determine its medical soundness and probative value.  Poulan Weed Eater \nv. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); Green Bay Packing v. Bartlett, 67 \nArk. App. 332, 999 S.W.2d 692 (1999).  Based upon my review of the medical evidence, \nI credit the opinion of Dr. Frank Peretti, Forensic Pathologist, stating in his autopsy report \nthat Claimant “died of multiple cerebral infarctions with the contributory factors of status \npost left triceps tendon repair and hypertensive arteriosclerotic cardiovascular disease.” \nDr. Peretti’s medical training and primary job function is determining the cause of death \nin people. Dr. Peretti’s opinion is based on an actual external and internal examination of \nClaimant’s  body  to  determine  the  contributing  factors  of  his  death. Thus,  I  credit  his \nopinion over the opinions of Dr. Adedamola Adepoju and Dr. Barry Baskins.  Therefore, \nClaimant’s estate has proven by a preponderance of the evidence that Claimant’s death \nwas  the  result  of  a  compensable  consequence  stemming  from  the  compensable  left \nelbow and arm injury. More specifically, the repair of the compensable injury by way of \nleft triceps tendon surgery. \n In Cooper  v.  Textron,  2005  AWCC  31,  Claim  No.  F213354  (Full  Commission \nOpinion  filed  February  14,  2005),  the  Commission  addressed  the  standard  when \nexamination medical opinions concerning causation: \nMedical  evidence  is  not  ordinarily  required  to  prove  causation, i.e.,  a \nconnection between an injury and the claimant's employment, Wal-Mart v. \n\nRODEBAUGH H202251 \n \n8 \n \nVan Wagner, 337 Ark. 443, 990 S.W.2d 522 (1999), but if a medical opinion \nis  offered  on  causation,  the  opinion  must  be  stated  within  a  reasonable \ndegree of medical certainty.  This medical opinion must do more than state \nthat the causal relationship between the work and the injury is a possibility. \nDoctors' medical opinions need not be absolute.  The Supreme Court has \nnever  required  that  a  doctor  be  absolute  in  an  opinion  or  that  the  magic \nwords \"within a reasonable degree of medical certainty\" even be used by \nthe  doctor;  rather,  the  Supreme  Court  has  simply  held  that  the  medical \nopinion  be  more  than  speculation;  if  the  doctor  renders  an  opinion  about \ncausation with language that goes beyond possibilities and establishes that \nwork  was  the  reasonable  cause  of  the  injury,  this  evidence  should  pass \nmuster.  See, Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d \n760 (2001).  However, where the only evidence of a causal connection is a \nspeculative  and  indefinite  medical  opinion,  it  is  insufficient  to  meet  the \nclaimant's burden of proving causation.  Crudup v. Regal Ware, Inc., 341, \nArk. 804, 20 S.W.3d 900 (2000); KII Construction Company v. Crabtree, 78 \nArk. App. 222, 79 S.W.3d 414 (2002). \n \nDr.  Peretti’s  opinion  was  clear  and  concise  that  Claimant’s  left  triceps  surgery  was  a \ncontributing  factor  to  his death.  Respondents  would  like  to  focus  on  Claimant’s  other \ncontributory  ailments  towards  his  stroke.  Nevertheless,  you  find  the  Claimant  how  you \nfind   the   Claimant –   Thin   Skull   Rule/Eggshell   Rule. Claimant’s   surgery   for   his \ncompensable injury was a contributing factor.     \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above. All accrued sums shall be paid in \na lump sum without discount, and this award shall earn interest at the legal rate until paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2002).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","textLength":15047,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H202251 LARRY RODEBAUGH (DEC’D), EMPLOYEE CLAIMANT ARK. INDUSTRIAL MACHINERY, INC., EMPLOYER RESPONDENT ACCIDENT FUND INSURANCE CO. AMERICA, CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 28, 2023 Hearing before Administrative Law Judge Steven Porch on Septem...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:03:17.210Z"},{"id":"alj-H205426-2023-09-26","awccNumber":"H205426","decisionDate":"2023-09-26","decisionYear":2023,"opinionType":"alj","claimantName":"Dana Cason","employerName":"Dolgen Corp LLC D/b/a/dollar General","title":"CASON VS. DOLGEN CORP LLC D/B/A/DOLLAR GENERAL AWCC# H205426 SEPTEMBER 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CASON_DANA_H205426_20230926.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CASON_DANA_H205426_20230926.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H205426 \n \nDANA CASON, EMPLOYEE            CLAIMANT \n \nDOLGENCORP, LLC D/B/A/        \nDOLLAR GENERAL, EMPLOYER            RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT \nSERVICES, INC./TPA              RESPONDENT \n            \nOPINION FILED SEPTEMBER 26, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Mountain Home, \nBaxter County, Arkansas. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Mr. David C. Jones, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on September 20, 2023, in Mountain \nHome, Arkansas on respondents’ Motion to Dismiss for failure to prosecute pursuant to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant was pro se and failed to appear for the hearing.  The \nclaimant had alleged that she had sustained work injuries in the course and scope of her \nemployment on July 24, 2022, including injuries to her head, neck, left hip, and left lower \nextremity.  A Form AR-1 was filed with the Arkansas Workers’ Compensation Commission \non  July  29,  2022.    A  Form  AR-2  was  filed  with  the  Arkansas  Workers’  Compensation \nCommission  on August  4,  2022,  denying  the  claim.    The  Legal  Advisor  Division  of the \nCommission sent a letter to the claimant notifying her that her claim had been denied and \n\nCASON – H205426 \n \n2 \n \nadvised her of her rights to prosecute her claim.  On August 26, 2022, the claimant filed \na letter with the Commission requesting a hearing based upon the denial of her claim.  \n On October 10, 2022, a Prehearing Questionnaire was sent to the claimant and \nthe  claimant  failed  to  respond  to  the  questionnaire.  On  October  26,  2022,  the \nrespondents  propounded  interrogatories  and  a  medical  authorization  to  the  claimant \nwhich the claimant failed to respond to.   No hearing request or further action has been \ntaken by the claimant in regard to this matter in over six (6) months.  A Motion to Dismiss \nwas filed by the respondents in this matter on June 29, 2023.  \nAppropriate notice was provided to the claimant notifying her that a hearing on the \nMotion to Dismiss, was set for September 20, 2023, in Mountain Home, Arkansas.  The \nclaimant did not file a response and failed to appear on the hearing date.  At the time of \nthe hearing, David C. Jones appeared on behalf of the respondents and asked that the \nmatter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent,  I  find  that  this  matter  should  be  dismissed  without  prejudice,  for failure  to \nprosecute  pursuant  to  Ark.  Code  Ann.  §11-9-702  and  Rule  099.13  of  the  Arkansas \nWorkers’ Compensation Act. \nORDER \n \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3269,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205426 DANA CASON, EMPLOYEE CLAIMANT DOLGENCORP, LLC D/B/A/ DOLLAR GENERAL, EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC./TPA RESPONDENT OPINION FILED SEPTEMBER 26, 2023 Hearing before Administrative Law Judge James D. Kennedy in Mountain H...","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:1"],"injuryKeywords":["neck","hip"],"fetchedAt":"2026-05-19T23:03:11.015Z"},{"id":"alj-H207528-2023-09-25","awccNumber":"H207528","decisionDate":"2023-09-25","decisionYear":2023,"opinionType":"alj","claimantName":"Rusty Risner","employerName":"Rite Of Passage Inc","title":"RISNER VS. RITE OF PASSAGE INC. AWCC# H207528 SEPTEMBER 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/RISNER_RUSTY_H207528_20230925.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RISNER_RUSTY_H207528_20230925.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H207528 \n \nRUSTY L. RISNER, EMPLOYEE   CLAIMANT \n \nRITE OF PASSAGE INC., EMPLOYER RESPONDENT \n \nESIS INC./.INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED SEPTEMBER 25, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by ERIC NEWKIRK, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  November 28, 2022, claimant filed Form AR-C, alleging a compensable injury on  July \n26, 2022.   Claimant was represented at the time by Laura Beth York , who filed a Motion to Withdraw \non February 9, 2023 and was allowed to withdraw on February 21, 2023.  No other attorney entered \nan appearance on claimant’s behalf.    \nOn August 2, 2023, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time. A hearing on respondent’s Motion to Dismiss was scheduled for September \n19, 2023.  Notice of the scheduled hearing was sent to  claimant by certified mail at the last  known \naddress in the Commission’s file. The notice was returned unclaimed on September 8, 2023.  Claimant \ndid not respond to Respondent’s motion and did not appear in person at the hearing on September \n19, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nRisner-H207528 \n \n2 \n \nhearing has been made in this file.  After my review of the Respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the Respondent’s motion, as well as all other matters \nproperly before the Commission, I find that Respondent’s Motion to Dismiss this claim should be \nand hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2181,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207528 RUSTY L. RISNER, EMPLOYEE CLAIMANT RITE OF PASSAGE INC., EMPLOYER RESPONDENT ESIS INC./.INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED SEPTEMBER 25, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian County, Arka...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:03:06.809Z"},{"id":"alj-H208734-2023-09-22","awccNumber":"H208734","decisionDate":"2023-09-22","decisionYear":2023,"opinionType":"alj","claimantName":"Misty Sanders","employerName":"Pulaski Co. Sheriff’s Office","title":"SANDERS VS. PULASKI CO. SHERIFF’S OFFICE AWCC# H208734 & H300195 & H300372 SEPTEMBER 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Sanders_Misty_H208734_H300195_H300372_20230922.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Sanders_Misty_H208734_H300195_H300372_20230922.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NOS. H208734, H300195 & H300472 \n \n \nMISTY D. SANDERS, EMPLOYEE CLAIMANT \n \nPULASKI CO. SHERIFF’S OFFICE, \n EMPLOYER RESPONDENT \n \nASSOC. OF ARK. COUNTIES RISK \nMGMT. SVCS., THIRD-PARTY \nADMINISTRATOR RESPONDENT \n \n \nOPINION FILED SEPTEMBER 22, 2022 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  August  24, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents represented by Mr. Jarrod S. Parrish, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on  the Motion to Dismiss filed \nby Respondents.  A hearing on the motion was conducted on August 24, 2023, in \nLittle Rock, Arkansas.  Claimant was pro se.  Respondents were represented at \nthe  hearing  by  Mr.  Jarrod  S.  Parrish,  Attorney  at  Law,  of  Little  Rock,  Arkansas.  \nAdmitted  into  evidence  were  the  following:    Respondents’  Exhibit  1,  forms  and \ncorrespondence related to Claim No. H208734, consisting of one index page and \nseven   numbered   pages   thereafter;   Respondents’   Exhibit   2, forms   and \ncorrespondence related to Claim No. H300195, consisting of one index page and \nseven  numbered  pages  thereafter;  and  Respondents’  Exhibit  3,  forms  and \ncorrespondence  related  to  Claim  No.  H300472,  consisting  of  two index  pages \n\nSANDERS – H208734, H300195 & H300472 \n \n2 \n \nand twelve numbered pages thereafter.  Without objection, the Commission’s file \nhas been incorporated herein in its entirety by reference. \n H208734  The  evidence  reflects  that  per  the  First  Report  of  Injury  or \nIllness  filed  on December  15,  2022,  Claimant  purportedly  injured  her  right \nAchilles  tendon  on  or  around  March  1,  2021,  as  a  result  of  repeated  running  to \nrespond to work-related emergencies.  According to the Form AR-2 that was filed \nthat same day, Respondents denied the claim.  No Form AR-C was ever filed. \n H300195  According to the First Report of Injury or Illness filed on January \n13,  2023,  Claimant  hurt  her  right  Achilles  tendon  on  October  14,  2022,  when \n“[r]esponding to emergency codes called to ensure safety of staff members.”  In \nthis instance, per the Form AR-2 filed that same day, Respondents accepted the \nclaim  as  a  medical-only  one.    In  a  Form  AR-C  filed  on  January  10,  2023, \nClaimant   requested   temporary   partial   disability   benefits,   rehabilitation,   and \npayment  of  medical  expenses  for  a  right  ankle  injury.    She  also  sought  on \nJanuary 10, 2023, a one-time change of physician.  This was granted on January \n24, 2023, and changed her authorized treating physician from Dr. Eric Gordon to \nDr. Jesse Burks. \n H300472.    With  respect  to  this  particular  claim,  the evidence  shows  that, \nper  the  First  Report  of  Injury  or  Illness  filed  on  December  15,  2022,  Claimant \ninjured  her  right  Achilles  tendon  on  March  2,  2021,  by  repetitive  running  to \nrespond to emergency codes.  The Form AR-2 that was likewise filed on January \n\nSANDERS – H208734, H300195 & H300472 \n \n3 \n \n24, 2023,  Respondents denied  the  claim.   Claimant  did  not  file a  Form  AR-C  in \nconnection  with  this  particular  file.    But  on  January  26,  2023,  she  wrote  the \nCommission  in  regard  to  it:   “I,  Misty  D.  Sanders  am  requesting  a  Hearing  in \nreference  to  my  Workers’  Compensation  claim  stated  above.”  When  efforts  to \nschedule a legal advisor or mediation conference failed, the file was assigned to \nme  on  March  13,  2023.    On  March  23,  2023,  prehearing  questionnaires  were \nissued  to  the  parties.    Respondents  filed  a  timely  response  thereto  on  April  11, \n2023.    But  because  Claimant  failed  to  respond,  the  file  was  returned  to  the \nCommission’s general files on April 28, 2023. \n Nothing  further  took  place  on  these  three  files  until  May  16,  2023,  when \nRespondents  filed  the  instant  Motion  to  Dismiss.    Therein,  they  argued  that \ndismissal  of  all  three  claims  was  warranted  under  Ark.  Code  Ann.  § 11-9-702 \n(Repl. 2012) and AWCC R. 099.13 because of Claimant’s failure to pursue them, \nincluding requesting a hearing thereon within the previous six months.  The Clerk \nof the Commission reassigned the files to me on May 31, 2023; and on June 15, \n2023, my office wrote Claimant, asking her to respond to the motion within twenty \n(20)  days.    The  letter  was  sent  to  her  by  first-class  and  certified  mail  at  the \naddress  for  her  listed  in  the  files  and  on  the  Form  AR-C.  She  signed  for  the \ncertified  letter  on  June  20,  2023;  and  the  first-class  letter  was  not  returned.  \nClaimant  testified  that  she  prepared  and  emailed  a  response  to  my  office.    My \n\nSANDERS – H208734, H300195 & H300472 \n \n4 \n \nreview  of  the  three  files  reveals  that  on  July  5,  2023,  she  emailed  my  former \nassistant, Natalie Craig (and copying Respondents’ co-counsel Melissa Wood): \nDear Mrs. [sic] Natalie Craig and whom it may concern, \n \nMy name is Misty Sanders.  I am writing in response to paperwork \nreceived  from  your  office.    I  will  first  state  how  confused  I  am  with \neverything going on in my case.  I received double correspondence \nfrom  your  office  and  a  law  firm  stating  to  complete  and  return,  in \nwhich  I  did.    Several  weeks  later  I  received  more  correspondence \nstating  paperwork  was  never  received  and  their  office  is  filing  for \n[d]ismissal.    I  do  have  documentation.    I  feel  that  AWCC  is  and \nhave been been delibritely [sic] misinforming me on weather [sic] or \nnot  I  needed  legal  representation,  but  at  this  point  I’m  almost \ncertain  I  do.    Upon  my  second  injury  it  was  determined  by  my \nsurgeon,  and  seconded  by  the  AWCC  doctor  that  my  injuries  (first \nand  second)  were  work  related,  something  I  never  suspected.   I \nwas unaware that I needed legal representation, because doing the \nright thing does not require it and I could not afford it.  So, I followed \nall  orders  given  to  me.    I  was  never  compensated  for  missed  time \noff  for  the  injury  that  to  [sic]  Pulaski  County  took  full  responsibility \nfor, because documentation was received on the wrong foot, never \nrequesting correct foot knowing that it was two of the same injuries \non file. \n \nHowever, I am requesting a  [h]earing in writing to you via this \nemail,   because   someone   should   hear   my   story.  If   any \nquestions  or  concerns  please  contact  me  at  501-960-2543  or  via \nemail[.] \n \n(Emphasis added) \n On July 11, 2023, a hearing on the motion was scheduled for  August 24, \n2023, at 9:30 a.m. at the Commission in Little Rock.  The notice thereof was sent \nto Claimant by first-class and certified mail using the same address as before.  In \nthis instance, both the first-class and certified letters were returned, undelivered, \nto the Commission on July 17 and 25, 2023, respectively.  Regardless, Claimant \n\nSANDERS – H208734, H300195 & H300472 \n \n5 \n \ntestified  that  she  received  notice  of  the  hearing  via  email—illustrated  by  her \nappearance there. \n The hearing on the Motion to Dismiss proceeded as scheduled on August \n24,  2023.    Again,  Claimant  appeared pro  se  and  testified.  Respondents \nappeared  through  counsel  and  argued  for  dismissal  of  the  three  files  under  the \naforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this matter. \n2. No Form AR-C has ever been filed in connection with  AWCC Nos. \nH208734 and H300472.  While nothing constitutes a claim for initial \nbenefits   concerning   H208734,   Claimant’s   January   26,   2023, \nhearing  request  regarding  H300472  suffices  to  constitute  a  claim \nfor initial benefits. \n3. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n\nSANDERS – H208734, H300195 & H300472 \n \n6 \n \n4. Because  nothing  in  the  file  constitutes  an  initial  claim  for  benefits \nregarding  H208734,  there  is  no  claim  to  dismiss;  the  Motion  to \nDismiss is hereby denied regarding this particular file. \n5. Respondents have not proven by a preponderance of the evidence \nthat Claimant has failed to prosecute H300195 and H300472 under \nAWCC R. 099.13. \n6. Respondents have not proven by a preponderance of the evidence \nthat dismissals of H300472 and H300195 are warranted under Ark. \nCode Ann. § 11-9-702(a)(4) & (d) (Repl. 2012), respectively. \n7. The  Motion  to  Dismiss  should  be,  and  hereby  is,  denied  without \nprejudice. \n8. Claimant has requested a hearing on her claims. \n9. This matter will proceed to a hearing on the merits. \nIII.  DISCUSSION \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl.  2012)  must  prove  their  entitlement  to  the  relief  requested–dismissal  of \nthese  matters–by  a  preponderance  of  the  evidence.    This  standard  means  the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n\nSANDERS – H208734, H300195 & H300472 \n \n7 \n \n As  noted  above,  no  Form AR-C  has  been  filed  in  connection  with \nH208734  and  H300472.    That  is  the  means  for  filing  a  “formal  claim.”   See \nYearwood  v.  Wal-Mart  Stores,  Inc.,  2003  AR  Wrk.  Comp.  LEXIS  739,  Claim  No. \nF201311  (Full  Commission  Opinion  filed  June  17,  2003).   See  also Sinclair  v. \nMagnolia  Hospital,  1998  AR Wrk.  Comp.  LEXIS  786,  Claim  No.  E703502  (Full \nCommission  Opinion filed  December  22,  1998)(a  claim is  “typically”  filed via  a \nForm  AR-C).  While  a  Forms AR-1  were  filed,  they  do  not  suffice  to  instigate  a \nclaim.  Id. \n I  recognize,  however,  that  other  means  exist  to  file  a  claim  for  initial \nbenefits  other  than  a  Form  AR-C.    In Downing  v.  Univ.  of  Ark.,  1999  AR Wrk. \nComp. LEXIS 979, Claim No. E209360 (Full Commission Opinion filed March 16, \n1999), the Commission stated: \nWhile   it   appears   that   no   court   has   addressed   the   minimum \nrequirements under Arkansas law to state an adequate “petition for \nreview”, in Cook v. Southwestern Bell Telephone Company, 21 Ark. \nApp.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of  Appeals \ndiscussed the minimum requirements necessary for \ncorrespondence   to   the   Commission   to   constitute   a   claim   for \nadditional  compensation  for  the  purposes  of  tolling  the  applicable \nStatute  of  Limitations.     In  that  case,   the  Court  held  that  an \nattorney's  correspondence  notifying  the  Commission  that  he  has \nbeen  employed  to  assist  a  claimant  in  connection  with  unpaid \nbenefits  is  sufficient  to  state  a  claim  for  additional  compensation \nwhere  the  correspondence  also  lists  the  claimant's  name,  the \nemployer's name and the WCC file number. Id., See also, Garrett v. \nSears  Roebuck  and  Company,  43  Ark.  App.  37,  858  S.W.2d  146 \n(1993).    Moreover,  we  have  interpreted Cook  as  requiring  that \ncorrespondence  intended  as  a  claim  for  additional  benefits  (1) \nidentify  the  claimant,  (2)  indicate  that  a  compensable  injury  has \noccurred, and (3) convey the idea that compensation is expected. \n\nSANDERS – H208734, H300195 & H300472 \n \n8 \n \n \n(Citations omitted) \n My  review  of  the  Commission’s  file  discloses no  document  sufficient  to \nconstitute  a  filing  of  a  claim  for  initial  benefits  under  the  factors  cited  above \nregarding H208734.  Because there is no claim, it follows that there is nothing to \ndismiss.  The Motion to Dismiss is thus denied vis-à-vis H208734. \n As for H300472, I find that  Claimant’s  January 26, 2023,  hearing request \naddressed  to  the  Commission  suffices  to  constitute  a  claim  for  initial  benefits \nunder the above standard. \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  In turn, Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) read: \n(4)   If   within   six   (6)   months   after   the   filing   of   a   claim   for \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing,  be  dismissed  without  prejudice  to  the  refiling  of  the  claim \nwithin  limitation  period  specified  in  subdivisions  (a)(1)-(3)  of  this \nsection. \n \n. . . \n \n(d)  If  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim may,  upon  motion  and  after \nhearing, if necessary, be dismissed without prejudice to the refiling \n\nSANDERS – H208734, H300195 & H300472 \n \n9 \n \nof  the  claim  within  limitation  period  specified  in  subsection  (b)  of \nthis section. \n \n(Emphasis  added)    Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012), \nRespondents  must  prove  by  a  preponderance  of  the  evidence  that  dismissal \nshould  be  granted.    The  standard  “preponderance  of  the  evidence”  means  the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson \nWorld Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a \nwitness’ credibility and how much weight to accord to that person’s testimony are \nsolely up to the Commission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, \n37 S.W.3d 649 (2001).  The Commission must sort through conflicting evidence \nand determine the true facts.  Id.  In so doing, the Commission is not required to \nbelieve  the  testimony  of  the  claimant  or any  other  witness,  but  may  accept  and \ntranslate  into  findings  of  fact  only  those  portions  of  the  testimony  that  it  deems \nworthy of belief.  Id. \n At  the  hearing,  Claimant  initially  testified  that  despite  my  review  of \nH300472   indicating   otherwise,   she   prepared   a   prehearing   questionnaire \nresponse and faxed it to my office.  However, further questioning revealed that at \nbest, she sent it only to the office of Respondents’ counsel; and even then, what \nshe  sent  the firm may  not have  been  a  response to  the questionnaire  my office \n\nSANDERS – H208734, H300195 & H300472 \n \n10 \n \nmailed her.  Claimant could not confirm whether or not she received the April 28, \n2023, letter from my office informing her that H300472 was being returned to the \nCommission’s   general   files   because   of   her   failure   to   file   a   questionnaire \nresponse.    The  file  does  not  reflect  any  follow-up  by  her  in  response  to  the \ncommunication.    Her  testimony  readily  reflects  that  she  became  confused \nregarding the  identities of the various actors in these matters:  the Commission, \nRespondents, and Respondents’ counsel. \n Throughout the proceeding, she stated that she became confused not only \nby  the  legal  intricacies  involved,  but  by  there  being  three  separate  files  opened \nwith respect to her alleged injuries.  She further explained that she only has two \ninjuries:  one with an alleged injury date of April 11, 2022, and involving her  left \nAchilles  tendon,  and  the  other  with  an  alleged  injury  date  of  October  14,  2022, \nand involving her right Achilles tendon.  My review of the three files discloses that \nthe  April  11,  2022,  date  corresponds  to  H300472,  while  October  14,  2022, \ncorresponds  to  H300195.  In  her  testimony,  relating  back  to  her  confusion  over \nthe  process,  Claimant  stated  that  with  respect  to  her  hearing  request  on \nH300195, it was her belief that she was asking for a hearing on both injuries; i.e., \nshe wanted a hearing on both H300195 and H300472. \n Claimant  objected  to  a  dismissal,  and  requested  a  hearing  on  both \nH300195 and H300472, in the event that they are not dismissed. \n\nSANDERS – H208734, H300195 & H300472 \n \n11 \n \n After  consideration  of  the  evidence,  I  find  that  while  both  Claimant  and \nRespondents  were  given  reasonable  notice  of  the  hearing  on  the  Motion  to \nDismiss under Rule 13, Claimant has not yet abridged that rule.  Moreover, I do \nnot find that dismissal is warranted under § 11-9-702(a)(4) or (d).  The Motion to \nDismiss  is  thus  denied  without  prejudice  with  regard  to  H300472  and  H300195, \nrespectively.  Prehearing  questionnaires\n1\n  will  be  immediately  issued  to  the \nparties, and these claims will proceed to a full hearing on the merits. \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, the Motion to Dismiss is hereby denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\nOut of an abundance of caution, one will be sent out on H208734 as well.","textLength":17976,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NOS. H208734, H300195 & H300472 MISTY D. SANDERS, EMPLOYEE CLAIMANT PULASKI CO. SHERIFF’S OFFICE, EMPLOYER RESPONDENT ASSOC. OF ARK. COUNTIES RISK MGMT. SVCS., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 22, 2022 Hearing before Chief Administrati...","outcome":"dismissed","outcomeKeywords":["dismissed:4","denied:2"],"injuryKeywords":["ankle","repetitive","back"],"fetchedAt":"2026-05-19T23:03:02.688Z"},{"id":"alj-H207274-2023-09-22","awccNumber":"H207274","decisionDate":"2023-09-22","decisionYear":2023,"opinionType":"alj","claimantName":"Carolyn Norris","employerName":null,"title":"NORRIS VS.KAGOME INC. AWCC# H207274 SEPTEMBER 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Norris_Carolyn_H207274_20230922.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Norris_Carolyn_H207274_20230922.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207274 \n \nCAROLYN NORRIS, EMPLOYEE  CLAIMANT \n \nKAGOME INC., \nEMPLOYER                                                                                                RESPONDENT \n \nSOMPO AMERICA FIRE AND MARINE \nINSURANCE COMPANY/TPA                                                                          RESPONDENT  \n \n \nOPINION FILED SEPTEMBER 25, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch on September 22,  2023  in \nJonesboro, Craighead County, Arkansas. \n \nClaimant  was  represented  by  Ms.  Laura  Beth  York,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nThe Respondents were represented by Mr. David C. Jones, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  September 22,  2023,  in \nJonesboro, Arkansas.  Claimant, was represented by Ms. Laura Beth York, Attorney at \nLaw.   However,   Claimant   herself   nor   her   attorney   were   present   at   the   hearing. \nRespondents were represented at the hearing by Mr. David C. Jones, Attorney at Law, of \nLittle Rock, Arkansas.  In addition to Respondent’s argument, the record consists of all \nexhibits properly admitted before the Commission including the Commission’s file–which \nhas been incorporated herein in its entirety by reference. \n The evidence reflects that Claimant’s injury occurred on September 9, 2022, where \nshe purportedly injured her low back, right elbow, and other whole body when she slipped \non an oily substance on the floor. This incident allegedly occurred during the course and \n\nNORRIS H207274 \n \n \n2 \nscope of her employment. Since filing her Form C on December 13, 2022,  this case has \nbeen inactive until Respondents filed a Motion to Dismiss due to the lack of prosecution. \nA  hearing  was  held on  September 22,  2023,  in  Jonesboro,  Arkansas  on  the  Motion  to \nDismiss.  As  previously  stated,  neither  the  Claimant’s  attorney nor  the  Claimant  was \npresent for the hearing. The Claimant’s attorney waived her appearance. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \n\nNORRIS H207274 \n \n \n3 \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice for the Motion to  Dismiss hearing under Rule 13. I further find \nthat Claimant has abridged this rule. Thus I find Respondent’s Motion to Dismiss should \nbe granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5034,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207274 CAROLYN NORRIS, EMPLOYEE CLAIMANT KAGOME INC., EMPLOYER RESPONDENT SOMPO AMERICA FIRE AND MARINE INSURANCE COMPANY/TPA RESPONDENT OPINION FILED SEPTEMBER 25, 2023 Hearing before Administrative Law Judge Steven Porch on September 22, 2023 in Jonesbor...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:03:04.749Z"},{"id":"alj-H300753-2023-09-21","awccNumber":"H300753","decisionDate":"2023-09-21","decisionYear":2023,"opinionType":"alj","claimantName":"Laurene Kelley","employerName":null,"title":"KELLEY VS. DENTAL HEALTH ASSOCIATES OF ARKANSAS P.A.AWCC# H300753 SEPTEMBER 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//KELLEY_LAURENE_H300753_20230921.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KELLEY_LAURENE_H300753_20230921.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H300753 \n \nLAUREN E. KELLEY, Employee                                                                                CLAIMANT \n \nDENTAL HEALTH ASSOCIATES OF ARKANSAS P.A., Employer                  RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, Carrier                                                RESPONDENT \n    \n \n OPINION FILED SEPTEMBER 21, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by AMY C. MARKHAM, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 29, 2023, the above captioned claim came on for a hearing at Fort Smith, Arkansas.  \nA pre-hearing conference was conducted on April 27, 2023, and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n  2.   The employee/employer/carrier relationship existed on February 1, 2023. \n             3.  The respondents have controverted the claim in its entirety.    \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on February 1, 2023. \n2.  If compensable, compensation rate.  \n \n\nKelley-H300753 \n2 \n \n 3. If compensable, whether claimant is entitled to medical benefits and temporary total   \n                disability benefits. \n4.  Attorney’s fees. \nAll other issues are reserved by the parties. \nThe claimant contends that “on February 1, 2023, while following directions of her employer, \nshe fell and sustained injury to her back and buttocks. The claimant contends that she is entitled to \ntemporary  total  disability benefits  from  February  2, 2023, through  March  19, 2023, and  reasonably \nnecessary medical treatment. The claimant contends that she has sustained a fracture in her thoracic \nspine; however, since she has not reached maximum medical improvement, she reserves the right to \nlitigate entitlement to permanent disability benefits. The claimant contends that her attorney is entitled \nto an appropriate attorney’s fee.” \nThe respondents contend that “Claimant was not in the course and scope of her employment \nwhen the accident occurred. Claimant was coming and going when she sustained the alleged injury.”   \n From a review of the entire record, including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on April \n27, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2. Claimant has failed to prove by a preponderance of the evidence that she suffered a \ncompensable injury on February 1, 2023. \n \n\nKelley-H300753 \n3 \n \n \nHEARING TESTIMONY   \n \n Claimant  testified  that  on  February  1, 2023, she  was  employed  at  Pointer Family  Dental  in \nVan  Buren,  Arkansas.  On  that  date,  she  was  involved  in  an  accident  when  she  was  going  into the \nbuilding where she works and slipped on ice on the stairs leading into the building.  The weather that \nmorning was cold, icy, and wet; her manager had sent a text message to the employees that the office \nwould  open  late.  When  she  arrived,  the  parking  lot  appeared  to  be  dry,  but  the  stairs  looked  wet.  \nClaimant did not realize it was ice on them until after she fell. She said both of her feet came out from \nunder her, and she slipped all the way down to the bottom of the stairs.  \nClaimant stated she was going to the employee entrance at the back of the building, as that is \nthe normal entrance for employees. She had never used the front door of the business when reporting \nto work because when she started working there, she was told by a previous manager to use the back \ndoor.  Her attorney then asked this question: \nQuestion (By Mr. Eddie H. Walker) Did you have any reason to be on those \nstairs other than following the directions of your employer as far as how you \nwere  supposed  to  enter  the  building?  In  other  words,  if  you  had  not  been \ninstructed to go into that back entrance, would you have been on that stairwell. \nAnswer (By Claimant) No. \n \nQ: And did you have any reason to be there other than that? \nA: No. \n \n Claimant said she suffered a compressed fracture at T8 in her back and was off work from \nFebruary 1 through March 18, 2023. As of the date of the hearing, claimant said she has been released \nfrom active treatment and did not have any pain in her back at that point. \n On  cross-examination,  claimant  was  asked  to  read  the  text  that  she  had  received  on  the \nmorning of February 1, 2023, which was as follows: \n“Plan was to open this morning at 11:00. Take your time to leave your house \nin plenty of time to make your way to the office. Some bridges may still have \nsome ice on them, so just be very careful driving in and be very cautious. I \n\nKelley-H300753 \n4 \n \n \nwill see everyone in a little while.” \n \n Claimant admitted that nowhere in the text message did the manager at Pointer Family Dental, \nP.  J.  Sharp,  instruct  her  to  use  the  back  entrance  when  she  came  to  work.  Claimant  said  she  was \nmistaken in her answer during her deposition that she had been told to use the employee entrance \nwhen coming in.  \n Claimant agreed that when she fell, she had not begun her workday, but rather had just exited \nher  car  and  was  on  her  way  to  enter  the  building.  She  said  that  she  clocked  in inside  the  building \nthrough  a  computer;  on  the  morning  of  the  fall,  she  did  not  clock  in.  She  agreed  that  she  had  not \nperformed any work duties before she fell. \n On redirect-examination, claimant said she used the steps to the back entrance because she \nhad been directed to do so. She did not have any reason to believe the steps were icy. Claimant stated \nthat she was not using the back entrance on her own discretion and had never entered the building by \nany entrance other than the back entrance.  \n On recross-examination, claimant did not believe she would have been reprimanded if she had \nused the front entrance. The day before the fall and the morning of the fall, claimant conceded she \nhad not been told to use the back entrance. \n On redirect-examination, claimant said that she would not have been in violation of company \npolicy if she had used any entrance other than the back entrance. When questioned further, she agreed \nthat if someone in a managerial position tells her to do something, she is supposed to do it, but she \nwas not aware of any consequences if she acted in violation of what the supervisor told her to do. \n After claimant rested, respondent called Patsy Jeannette Sharp, who goes by the initials P.J. \nShe is the practicing manager at Pointer Family Dental and had been since September 19, 2022. She \nknew claimant from being an employee at the clinic.  \n\nKelley-H300753 \n5 \n \n \n On the morning of February 1, 2023, Ms. Sharp said that she arrived at work about 9:00 a.m., \nand the clinic was to open at 11:00 a.m. She had notified the employees via a text message about the \ndelayed opening. After Ms. Kelley fell, she sent another text message that instructed employees to not \ncome down the stairs to the back but rather go around because claimant had fallen and was still on \nthe steps while awaiting the ambulance. Ms. Sharp said that she had not discussed in any fashion with \nclaimant of how to enter the building and that there will be no repercussions or disciplinary actions \ntaken against an employee if they opted to come through the front door on February 1, 2023, rather \nthan the back door. She had never instructed any employee that it was required to use the back door \nto enter the building.  \n After claimant fell, she called Ms. Sharp who came to claimant’s assistance and called 911. Ms. \nSharp was unaware if claimant had entered the building before she had fallen but believed that she \nwould have known who had arrived and who hadn’t. Claimant was  required  to  clock  in  at  the \nbeginning of her workday and had not yet done so before her fall. Ms. Sharp said that claimant had \nnot begun any work as a dental assistant on February 1, 2023, before she fell.  \n On cross-examination, Ms. Sharp said that a person could walk across the lawn to enter the \nemployee’s entrance rather than using the stairs. Ms. Sharp conceded that she had no way of knowing \nwhat  claimant  had  been  told  regarding  the  use  of  the  employee  entrance before  she became the \nmanager. Ms. Sharp had used the stairs when she came into the building, and she was not aware of \nany ice on them. She knew there was some ice on the sidewalk because the EMT’s slipped on it when \nthey were coming to help her. She said the steps were not treated until after claimant fell.  There was \nno warning or notice of any kind that the sidewalks might be icy. \n When asked about the text that said “Do not come down the stairs to the back. Go around” \nMs. Sharp said that was sent to let others know to go around because the ambulance had not arrived. \n\nKelley-H300753 \n6 \n \n \nWithout that text, she expected others to come down the same stairs because that’s the way the \nemployees always enter. \n In questioning from the Court, Ms. Sharp said that the sign on the back door was to tell the \npublic not to use that door.  \n I found both witnesses to be credible.  Claimant corrected herself on a couple of points that \nshe attributed  to  nervousness,  and  I  do not believe that  she  was trying  to  be  deceptive when  she \nmisspoke.   \nREVIEW OF THE MEDICAL RECORDS  \n \n As the issue in this case is the compensability of claimant’s injury rather than the existence of \nit, an exhaustive review of the medical records is unnecessary. The records from the February 1, 2023, \nvisit  to  Mercy  Hospital  in  Fort  Smith  provide  objective  evidence  of  an  injury  consistent with  what \nclaimant said in her testimony; she suffered a fracture at T8 vertebral body. Claimant also provided \nample documentation  to  support  her  claim  that  she  would  be  entitled  to  temporary  total  disability \nbenefits from February 1 through March 16, 2023, if I determined she suffered a compensable injury. \nNON-MEDICAL DOCUMENTS REVIEW  \n Both  claimant  and  respondents submitted  the  text  messages  from Ms. P.  J.  Sharp  on  the \nmorning  of  February  1, 2023, regarding  first  the  delayed  opening  of  the  dental  office and  then  the \nwarning to employees to not to come down the stairs to the back door. Claimant also submitted the \nEMS bill in the total amount of $1,246.42, less Blue Cross of Arkansas payments of $830.90, leaving \nher with a bill in the amount of $415.52. \n Respondents submitted excerpts from claimant’s deposition, none of which are germane to \nthe issue of compensability. Respondents also submitted a transcript of a recorded statement claimant \ngave on February 22, 2023, but again, nothing of value to the issue of compensability was contained \n\nKelley-H300753 \n7 \n \n \ntherein.  The  remaining  non-medical  exhibits  were a  photograph  of  the  building  which  showed  the \nsteps and the parking lot, wage records and the previously mentioned texts from Ms. Sharp to claimant \nand other employees on February 1, 2023. \nADJUDICATION \n \nIn order to prove a compensable injury as the result of a specific incident that is identifiable \nby time and place of occurrence, a claimant must establish by a preponderance of the evidence (1) an \ninjury arising out of and in the course of employment; (2) the injury caused internal or external harm \nto  the  body  which  required  medical services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence. Odd Jobs and More v. Reid, 2011 Ark. App. 450, \n384 S.W. 3d 630. After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  failed  to  meet  her burden  of  proving  by  a \npreponderance of the evidence that she suffered a compensable injury on February 1, 2023.  \n The material facts as  they  relate  to  the slip  and  fall  are  not  in  dispute.  On  a  day when the \nrespondent employer opened late due to icy road conditions, claimant slipped on the steps leading to \nthe employee’s entrance to the dental office where she worked.  Respondent’s witness attended  to \nclaimant as she laid on the cold steps/sidewalk until the ambulance arrived. The medical records from \nthe facility where claimant was taken after the fall amply provide objective proof of an injury from \nthat fall.  The only question for me to decide is if claimant was engaged in employment activity at the \ntime of her fall.   I find she failed to prove that she was so engaged.  \n I find the facts of this matter are indistinguishable from Webster v. Ark. Dep't of Corr., 2017 Ark. \nApp.  558,  537  S.W.3d  731.    In  that  case,  Webster  appealed  an  adverse  decision  from  the  Full \nCommission that she had failed to prove entitlement to workers’ compensation benefits as the result \n\nKelley-H300753 \n8 \n \n \nof  falling on “black ice” in  the  parking  lot  of  her  employer;  at  the  time  of  the  fall,  she  was  not \nperforming any work-related duties.  In the case at bar, claimant slipped before she had entered the \nbuilding where she works, and thus had not clocked in or begun providing employment services to \nher employer at the time of her fall.   \n In closing remarks, claimant urged that she could collect benefits under the “positional risk” \ndoctrine, a theory of recovery not advanced in Webster.   However, I disagree that doctrine would allow \nclaimant to collect under these facts. The back entrance was marked “for employees only,” but that \nsign  was  to  prevent  the  public  from  using  that  door.    Claimant  conceded  that  she would  not  have \nviolated company policy had she entered some way other than the back door to the building; it was \napparent from the testimony and the photograph of the building that using that entry was simply more \nconvenient for the employees than going around to the front door.  \n As claimant failed to prove by a preponderance of the evidence that her injury arose out of \nand in the course of her employment, the other issues raised in this matter are moot.    \nORDER \n \n Claimant has failed to meet her burden of proving by a preponderance of the evidence that \nshe suffered a compensable injury to her thoracic spine on or about February 1, 2023. Therefore, her \nclaim for compensation benefits is hereby denied and dismissed. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \nhearing transcript. \n IT IS SO ORDERED. \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":15731,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300753 LAUREN E. KELLEY, Employee CLAIMANT DENTAL HEALTH ASSOCIATES OF ARKANSAS P.A., Employer RESPONDENT TRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT OPINION FILED SEPTEMBER 21, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith,...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:5"],"injuryKeywords":["back","fracture","thoracic"],"fetchedAt":"2026-05-19T23:03:00.613Z"},{"id":"full_commission-H101867-2023-09-20","awccNumber":"H101867","decisionDate":"2023-09-20","decisionYear":2023,"opinionType":"full_commission","claimantName":"Thurn Apple","employerName":"White River Agency On Aging, Inc","title":"APPLE VS. WHITE RIVER AGENCY ON AGING, INC. AWCC# H101867 SEPTEMBER 20, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Apple_Thurn_H101867_20230920.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Apple_Thurn_H101867_20230920.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H101867\n \n \nTHURN K. APPLE, EMPLOYEE  CLAIMANT \n \nWHITE RIVER AGENCY ON AGING, INC., \nEMPLOYER RESPONDENT \n \nAGING SERVICES FUND/ \nRISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT \n \nOPINION FILED SEPTEMBER 20, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n The claimant appeals and the respondents cross-appeal an opinion \nand order of the Administrative Law Judge filed May 2, 2023.  In said order, \nthe Administrative Law Judge made the following findings of fact and \nconclusions of law: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n \n2.  An employer / employee relationship existed on or about February 8, \n2021,  and  at  all  relevant  times,  when  the  claimant  sustained  a \ncompensable injury in the form of a fractured sacrum.  \n\n \nAPPLE - H101867   2\n  \n \n \n3.  The  claimant  earned  an  average  weekly  wage  of  $398.40  with  a \ntemporary total disability / permanent partial disability rates of $216.00 \n/ $200.00, respectively. \n \n4.  That the claimant has been assigned a five percent (5%) rating to the \nbody as a whole, which has been accepted by the respondents. \n \n5.  That the claimant has failed to satisfy the required burden of proof that \nshe is entitled to permanent and total disability but, in the alternative, \nhas satisfied the required burden of proof, by a preponderance of the \nevidence, that she is entitled to an Award of wage-loss in the amount \nof five percent (5%).  \n \n6. The claimant is entitled to attorney’s fees pursuant to Ark. Code Ann. \n§11-9-715. This Award shall bear interest at the legal rate pursuant to \nArk. Code Ann. §11-9-809. \n \n7.  If not already paid, the respondents are ordered to pay for the cost of \nthe transcript forthwith. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's May 2, 2023 \ndecision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n\n \nAPPLE - H101867   3\n  \n \n \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \nI must respectfully dissent from the Majority’s determination that the \nclaimant is entitled to a five percent (5%) award for wage loss. \nDisability is defined under Arkansas law as the \"incapacity because \nof compensable injury to earn, in the same or other employment, the wages \nwhich the employee was receiving at the time of the injury.\"  Ark. Code Ann. \n§ 11-9-102(5).  The wage-loss factor is the extent to which a compensable \ninjury affects a person's ability to earn a livelihood.  Rice v. Ga.-Pacific \nCorp., 72 Ark. App. 148, 35 S.W.3d 328 (2000).  Wage-loss disability is to \nbe determined from a consideration of the medical evidence, together with \n\n \nAPPLE - H101867   4\n  \n \n \nthe other elements such as the injured worker's age, education, experience, \nand other matters affecting wage loss, including the claimant's motivation to \nreturn to work.  Id.  If a work-related injury combines with a preexisting \ndisease or condition or the natural process of aging to cause or prolong the \ndisability or need for treatment, permanent benefits shall be payable for the \nresultant condition only if the compensable injury is the major cause of the \npermanent disability or need for treatment.  Ark. Code Ann. § 11-9-\n102(4)(F)(ii)(a).  Major cause means more than fifty percent (50%) of the \ncause.  Ark. Code Ann. § 11-9-102(14)(A). \nIn the present case, the claimant is a sixty-eight (68) year-old woman \nwith an eleventh-grade education prior to obtaining her GED.  (Hrng. Tr., P. \n6).  The claimant had over twenty years of experience working on the \nassembly line at a shirt factory in Mountain View prior to purchasing and \noperating a grocery store with her husband for ten years before ultimately \nselling and returning to the assembly line.  (Hrng. Tr., Pp. 7-8).  At one \npoint, the claimant was working four jobs simultaneously, ultimately quitting \none to have time for sleep.  (Hrng. Tr. P. 11).  After an on-the-job fall with \none employer in 2005, the claimant had surgery on her back.  (Hrng. Tr., \nPp. 11-12, 15).  Bolts and screws from this surgery remain in place and the \nclaim was ultimately settled for $30,000.00.  (Hrng. Tr., Pp. 38-39).  The \n\n \nAPPLE - H101867   5\n  \n \n \nclaimant began working for the respondent employer in 2013 until she \nsuffered an admittedly compensable fractured sacrum on February 8, 2021. \n(Hrng. Tr, Pp. 13-14). \nThe claimant has multiple pre-existing conditions contributing to her \nallegations that she is unable to work.  Prior to her work-related injury, the \nclaimant treated for multiple conditions, including left hip pain, type 2 \ndiabetes with diabetic polyneuropathy, chronic kidney disease, piriformis \nsyndrome of the left side, chronic pain syndrome, hip osteoarthritis, hand \nosteoarthritis, fibromyalgia, cervical degenerative disc disease, right \nshoulder arthropathy, hypertension, right shoulder rotator cuff tear or \nrupture, pain in left shoulder, arthritis of the knee, and bilateral sacroiliitis \namong many other medical issues and complaints.  (Resp. Ex. 1, Pp. 23-\n28).  On July 20, 2020, the claimant was treated for left knee and hip pain \nby her family physician, Dr. Eric Spann.  (Resp. Ex 1, P. 32).  Later, on July \n22, 2020, a note from Fletcher Chiropractic reflects that the claimant treated \nfor left-side low back pain with no accident or injury reported.  (Resp. Ex. 1, \nP. 35).  Dr. Spann ultimately referred the claimant to physical therapy for \nhip and low back pain after a September 21, 2020 visit.  (Resp. Ex. 1, Pp. \n36-37).  According to Dr. Charles Varela in his report dated February 8, \n2021, the claimant was evaluated by John Hilvert, physical therapist, on \n\n \nAPPLE - H101867   6\n  \n \n \nSeptember 28, 2020 for left-sided low back pain which she had for \napproximately five months prior to her work injury.  Dr. Varela went on to \nstate that at the time the claimant was seen by the physical therapist she \nhad complained of paresthesia of the left lower extremity, transient \nweakness, and significant limitations secondary to pain.  She complained of \nthese issues when she saw Dr. Varela.  (Resp. Ex. 1, P. 43). \nImportantly, the claimant’s compensable sacral fracture had resolved \nby June 2022.  The claimant was seen by Dr. Varela on June 27, 2022, who \nopined that his impression of claimant’s condition was “1. Status post \nprobably S3 sacral fracture, acute, work related, resolved.  2. Chronic \nmechanical low back pain with symptoms not justified by objective findings, \nnot related to work injury.”  (Resp. Ex. 1, Pp. 43-45).  In fact, Dr. Varela was \nof the opinion that: \n[b]ased on physical examination and \nreview of records, it appears that the \npatient sustained a fracture of the sacrum \nat the L4-5 level. Based on examination \ntoday and because the patient does not \nhave tenderness over the area of the \nsacral fracture, this fracture has resolved \nand there is no evidence that this would \nbe a continuing source of the patient’s \npain. Therefore, this injury has reached \nmaximum medical improvement (MMI), \nand the patient is released without \nimpairment or restriction from this injury. \n\n \nAPPLE - H101867   7\n  \n \n \nIn addition, the patient has chronic low \nback pain.  She has a long previous \nhistory of low back pain which is not \nrelated to her work injury.  This is best \ndocumented on a note by the physical \ntherapist John Hilvert on 9/28/2020, as \nwell as 10/5/2020, where she is noted to \nhave essentially the same symptoms of \nleft-sided low back pain with lower \nextremity numbness and weakness as \nshe complains of after her work injury. \n \nIt is because of her chronic low back pain, \nas well as this patient’s age, and general \nphysical conditioning, that I would place \nwork restrictions on this patient.  The \npatient can return to work with 25-lb \nweight restriction.  If she cannot tolerate \nthis type of work without restriction, the \npatient may need to consider other types \nof employment that are physically less \ndemanding.  However, again, this would \nbe secondary to non-work-injury related \nfactors.  Id. \n \n After obtaining a change of physician order through the Commission, \nDr. Luke Knox evaluated the claimant on September 15, 2022, finding that: \nI do not believe that there are any further \nmedical treatment and/or additional \ndiagnostic tests directly recommended \nand/or necessary associated with the \nsacral fracture and/or low back injury and \ncomplaints. \n \n\n \nAPPLE - H101867   8\n  \n \n \nSecondly, I agree with Dr. Varela that Ms. \nApple is at maximum medical \nimprovement. I do not believe there are \nany other treatment options available. \n(Resp. Ex. 1, P. 53).  \n \nDr. Knox assigned a 5% permanent impairment rating to the claimant’s \nbody as a whole but did not provide any work restrictions.  Id. \n As to the question of whether there was work available for the \nclaimant within her restrictions, it is clear that both the respondent employer \nand other area employers could provide ample work for the claimant.  Prior \nto being released to full duty, office coordinator Misty Glenn testified that \nthe respondent was offered light duty, but that the claimant stated she could \nnot complete them and “pretty much dusted and answered the phone.” \n(Hrng. Tr., Pp. 47-48, 51).  The claimant was transferred to another area \nafter telling coworkers that she “just basically gets paid to do nothing.” \n(Hrng. Tr., P. 48).  Further, a report from vocational counselor, Keondra \nHampton, identifies multiple job openings in the claimant’s area making at \nleast her average weekly wage of $398.40.  (See Resp. Ex. 2).  Although \nthe ALJ determined that the claimant had made some effort and “at least \nlooked for available work,” it is clear that the claimant waited three months \nto do so until just prior to the hearing.  (Op., Pp. 17-18; Hrng. Tr., Pp. 43-\n44). \n\n \nAPPLE - H101867   9\n  \n \n \n Based on the facts at hand, the claimant is unable to meet the \nrequirements to be entitled to wage loss disability.  The claimant has a long \nhistory of chronic pain unrelated to her work-related injury on February 8, \n2021, and her providers agree that she has no ongoing issues resulting \nfrom this injury that would impact her ability to gain meaningful employment. \nIn fact, the record reflects a disinterest in doing so.  The only restrictions on \nthe claimant’s ability to work are all related to her long-standing pre-existing \nproblems which are unrelated her on-the-job injury.  None of the claimant’s \ntreating physicians have placed any restrictions on her work activities \nrelated to her compensable injury on February 8, 2021.  The claimant has \nfailed to meet her burden of proving by a preponderance of the evidence \nthat she is entitled to a 5% wage loss award above her 5% anatomical \nrating. \nFor the reasons stated above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":11997,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H101867 THURN K. APPLE, EMPLOYEE CLAIMANT WHITE RIVER AGENCY ON AGING, INC., EMPLOYER RESPONDENT AGING SERVICES FUND/ RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 20, 2023 Upon review before the FU...","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":["back","hip","cervical","shoulder","rotator cuff","knee","fracture"],"fetchedAt":"2026-05-19T22:29:46.143Z"},{"id":"full_commission-G900188-2023-09-20","awccNumber":"G900188","decisionDate":"2023-09-20","decisionYear":2023,"opinionType":"full_commission","claimantName":"Clayton Mcwilliams","employerName":"Arkansas State Police","title":"MCWILLIAMS VS. ARKANSAS STATE POLICE AWCC# G900188 SEPTEMBER 20, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/McWilliams_Clayton_G900188_20230920.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"McWilliams_Clayton_G900188_20230920.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G900188 \n \nCLAYTON McWILLIAMS, \nEMPLOYEE \n \nCLAIMANT \nARKANSAS STATE POLICE,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2 \n \n  \n      \nOPINION FILED SEPTEMBER 20, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE CHARLES H. \nMcLEMORE, JR., Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID L. PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \n \n ORDER \nThis matter comes before the Full Commission on the Respondent’s \nMotion to Introduce Newly Discovered Evidence. The Respondent seeks to \nsupplement the record with vocational rehabilitation reports from Systemedic \nand  TEEM  Academy.  After  considering  the  Respondent’s  motion,  the \nClaimant’s  response  thereto,  and  all  other  matters  properly  before  the \nCommission, we find that the Respondent’s motion should be granted.  \n\nMcWILLIAMS - G900188   2\n  \n \n \n Ark.  Code  Ann. §  11-9-705(c)(1)  provides that  all  evidence  must be \nsubmitted at the initial hearing on the claim.  In order to submit new evidence, \nthe  movant  must  show  that  the  new  evidence  is  relevant;  that  is  not \ncumulative; that it would change the result of the case; and that the movant \nwas diligent in presenting the evidence to the Commission.  Fred’s Stores of \nTennessee, Inc. v. Melvin Ely, 2012 Ark. App. 238.  \n In  the  present  case,  the  Respondent  argues  that  the  evidence  is \nrelevant  as  it  speaks  to  the  Claimant’s  willingness  to  return  to  work.  A \nclaimant’s lack of interest in pursuing employment with his employer, and \nnegative  attitude  in  looking  for  work  are  impediments to the Commission’s \nability  to  assess  wage  loss  disability. Logan  County  v.  McDonald,  90  Ark. \nApp.  409,  206  S.W.3d  258  (Ark.  App.  2005).  Therefore,  the  evidence  is \nrelevant to the issue at hand.  \n This evidence is not cumulative as it may present new insight on the \nClaimant’s  attitudes  towards  working  that  differ  from  those  opined  on \npreviously.  \n Additionally,  the  evidence  may  change  the  result  of  the  case.    As \nstated above, a claimant’s lack of interest in pursuing employment with his \nemployer, and negative attitude in looking for work are impediments to the \nCommission’s  ability  to  assess  wage  loss  disability. Logan  County  v. \nMcDonald, 90 Ark. App. 409, 206 S.W.3d 258 (Ark. App. 2005).  A claimant’s \n\nMcWILLIAMS - G900188   3\n  \n \n \nlack of interest, however, is not a complete bar.  Drake v. Sheridan Sch. Dist., \n2013 Ark. App. 150, 2013 Ark. App. LEXIS 154.  This evidence may change \nthe case at hand, as the ALJ opined directly on Claimant’s willingness to re-\nenter the workforce after a traumatic brain injury.  \n The  Respondent  was  diligent  in  presenting  the  evidence  to  the \nCommission. The additional evidence was not available to the Respondent \nat the time of the hearing with the ALJ.  The Respondent then filed the motion \nat hand in an attempt to rectify this issue.  \nTherefore, after considering the Respondent’s motion, the Claimant’s \nresponses thereto, and all other matters properly before the Commission, we \ngrant the Respondent’s motion to Introduce Newly Discovered Evidence and \nwill  assess  the  proper  weight  of  such  evidence  during  review  of  the \nsubstantive issues of the case.  \nIT IS SO ORDERED.  \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":3959,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G900188 CLAYTON McWILLIAMS, EMPLOYEE CLAIMANT ARKANSAS STATE POLICE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.148Z"},{"id":"alj-G807158-2023-09-20","awccNumber":"G807158","decisionDate":"2023-09-20","decisionYear":2023,"opinionType":"alj","claimantName":"Thomas Boyette","employerName":"Roach Mfg. Corp","title":"BOYETTE VS. ROACH MFG. CORP. AWCC# G807158 SEPTEMBER 20, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Boyette_Thomas_G807158_20230920.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Boyette_Thomas_G807158_20230920.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G807158 \n \n \nTHOMAS L. BOYETTE, EMPLOYEE CLAIMANT \n \nROACH MFG. CORP., \n SELF-INSURED EMPLOYER RESPONDENT NO. 1 \n \nTRAVELERS INDEMN. CO., \n CARRIER RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL \n DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n \nOPINION FILED SEPTEMBER 20, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  September \n15, 2023, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  No. 1  represented  by  Mr.  Guy  Alton Wade,  Attorney  at  Law,  Little \nRock, Arkansas. \n \nRespondent  No.  2,  represented  by  Ms.  Christy  L.  King,  Attorney  at  Law,  Little \nRock, Arkansas, excused from participation. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on  the Motion to Dismiss filed \nby  Respondents  No.  1.    A  hearing  on  the motion  was  conducted  on  September \n15,  2023,  in  Jonesboro,  Arkansas.    Claimant,  who  is pro  se,  failed  to  appear.  \nRespondents  No.  1  were  represented  at  the hearing  by  Mr.  Guy  Alton  Wade, \nAttorney  at  Law,  of  Little  Rock,  Arkansas.    Respondent  No.  2,  represented  by \nMs.  Christy  L.  King,  Attorney-at-Law,  Little  Rock,  Arkansas,  was  excused  from \nparticipation.    The  record  consists  of  Respondents’  Exhibit  1,  pleadings,  forms \n\nBOYETTE – G807158 \n \n2 \nand  correspondence  related  to  the  claim,  consisting  of  five  pages.  In  addition, \nwithout  objection,  the  Commission’s  file  has  been  incorporated  herein  in  its \nentirety by reference. \n The evidence reflects that  per the First Report of Injury or Illness filed on \nOctober 23, 2018, Claimant purportedly suffered an injury to his left hand at work \non October  22,  2018,   when his  hand  got  caught  in  a  falling  scissor  lift  table.  \nAccording  to  the  Form AR-2  that  was  filed  on  November  2,  2018,  Respondents \nNo.  1  accepted  the  claim  and  paid  medical  and  indemnity  benefits  pursuant \nthereto. \n On  May  16,  2019,   through  then-counsel  Rainwater,  Holt  &  Sexton, \nClaimant filed a Form AR-C, requesting a range of initial and additional benefits, \nand  stated  that  the  alleged  accident  resulted  in  injuries  to “his  right  arm,  hand, \nand   other   whole   body.”  No   hearing   request   accompanied   this   filing.  \nRespondents  No.  1  on  May  17,  2019,  informed  the  Commission  that  their \nposition  had  not  changed.    Attorney  Tod  Bassett  entered  an  appearance  on \nbehalf of Respondents No. 1 on May 20, 2019. \n On  March  12,  2020,  Respondents  No.  1  filed  a  joint  petition  with  the \nCommission  and  requested  a  hearing  thereon.    The  hearing  was  scheduled  on \nMarch  16,  2020,  for  April  3,  2020,  at  9:45  a.m.  at  the  Craighead  County \nCourthouse  in  Jonesboro.    However,  because  of  the  COVID-19  pandemic,  the \nhearing was cancelled. \n\nBOYETTE – G807158 \n \n3 \n Claimant’s  then-counsel  filed  an  identical  copy  of  the  earlier  Form  AR-C \non  September  21,  2020.    They  did  this  yet  again  on  March  1,  2021,  for  no \ndiscernible  reason;  while  in  both  instances  they  wrote  that  they  were  doing  this \n“for statute [of limitations] purposes,” the first Form AR-C remained in effect and \noperated  to  toll  the  running  of  the  limitations  period.    Bassett  retired  from  the \npractice of law as of December 31, 2020; and his partner, James Graves, moved \nto  be  substituted  as  counsel  for  Respondents.    On  May  21,  2021,  Gary  Davis \nentered  his  appearance  as  co-counsel  to  Claimant.    To  further  compound  the \nconfusion in this matter, attorney Daniel Wren on November 24, 2021, informed \nthe  Commission  by  letter  that  Claimant  had  now  hired  him  to  prosecute this \nclaim. \n No  further  action  on  the  claim  took  place  until  June  30,  2023.    On  that \ndate,  current  counsel  for  Respondents  No.  1  entered  his  appearance  and  filed \nth e instant  Motion  to  Dismiss.    Therein,  it  was  argued  that  dismissal  was \nwarranted under  AWCC R. 099.13 because “Claimant has not done anything to \npursue  this  matter  or  requested  a  hearing.”  On  July  5,  2023,  my  office  wrote \nWren  and  Claimant,  asking  for  a  response  to  the  motion  within 20  days.    This \ncorrespondence  was  sent  to  Claimant  by  first-class  and  certified  mail  to  the \naddress for him listed in the file and on his Forms AR-C.  However, both of these \nitems were returned to the Commission, undelivered. \n Meanwhile,   on   June   29,   2023,   Wren   filed   with   the   Clerk   of   the \nCommission  a  motion  to  withdraw  from  the  case.    On  July  11,  2023,  the  Full \n\nBOYETTE – G807158 \n \n4 \nCommission entered an order granting the motion under AWCC Advisory 2003-2.  \nNot  surprisingly,  no  response  to  the  Motion  to  Dismiss  was  forthcoming  from \neither Claimant or his now-former counsel. \n A  hearing  on  the  Motion  to  Dismiss  was  scheduled on  July  28,  2023,  for \nSeptember  15,  2023,  at  11:00  a.m.  at  the  Craighead  County  Courthouse  in \nJonesboro.    The  Notice  of  Hearing  was  sent  to  the  now-pro  se  Claimant  (using \nthe same address as before) by certified and first-class mail.  In this instance, the \nU.S. Postal Service could not confirm delivery of the certified letter; but neither it \nnor the first-class letter was returned.  The evidence thus preponderates that he \nreceived notice of the hearing. \n The  hearing  on  the  Motion  to  Dismiss  proceeded  as  scheduled  on \nSeptember  15,  2023.    Again,  Claimant  failed  to  appear.    Respondents  No.  1 \nappeared  through  counsel  and  argued  for  dismissal  of  the  action  under the \naforementioned authority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. All parties received notice of the Motion to Dismiss and the hearing \nthereon pursuant to AWCC R. 099.13. \n\nBOYETTE – G807158 \n \n5 \n3. Respondents   No.  1  have  proven  by  a  preponderance  of  the \nevidence  that  Claimant  has  failed  to  prosecute  his  claim  under \nAWCC R. 099.13. \n4. Respondents’ Motion to Dismiss should be, and hereby is, granted. \n5. This claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  (Emphasis added) \n As  the  moving  party,  Respondents  No.  1  under  Ark.  Code  Ann.  §  11-9-\n705(a)(3)  (Repl.  2012)  must  prove  their  entitlement  to  the  relief  requested–\ndismissal  of  this  claim–by  a  preponderance  of  the  evidence.    This  standard \nmeans  the  evidence  having  greater  weight  or  convincing  force.   Barre  v. \nHoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., \n212 Ark. 491, 206 S.W.2d 442 (1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it—including appearing  at  the  September  15,  2023,  hearing  to  argue \n\nBOYETTE – G807158 \n \n6 \nagainst its dismissal—since the March 1, 2021, re-filing of his Form AR-C.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer  Co.,  2005  AR Wrk.  Comp. \nLEXIS  510,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”    (Emphasis  added)(citing Professional  Adjustment  Bureau  v.  Strong, \n75 Ark. 249, 629 S.W.2d 284 (1982)).  Respondents No. 1 at the hearing asked \nfor  a  dismissal  without  prejudice.    Based  on  the  above  authorities, I  agree  and \nfind  that  the  dismissal  of  the  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":9441,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G807158 THOMAS L. BOYETTE, EMPLOYEE CLAIMANT ROACH MFG. CORP., SELF-INSURED EMPLOYER RESPONDENT NO. 1 TRAVELERS INDEMN. CO., CARRIER RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED SEPTEMBER 20, 2023 Hearing befor...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:02:56.463Z"},{"id":"alj-H300411-2023-09-20","awccNumber":"H300411","decisionDate":"2023-09-20","decisionYear":2023,"opinionType":"alj","claimantName":"Shyatta Summons","employerName":"Sun Rise Lodging/best Western Plus Jfk Inn & Suites","title":"SUMMONS VS. SUN RISE LODGING/BEST WESTERN PLUS JFK INN & SUITES AWCC# H300411 SEPTEMBER 20, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SUMMONS_SHYATTA_H300411_20230920.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SUMMONS_SHYATTA_H300411_20230920.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H300411 \n \nSHYATTA SUMMONS, EMPLOYEE                  CLAIMANT \n \nSUN RISE LODGING/BEST WESTERN PLUS \nJFK INN & SUITES, EMPLOYER                 RESPONDENT \n \nEMPLOYERS INSURANCE CO., CARRIER                       RESPONDENT \n \n \nOPINION FILED 20 SEPTEMBER 2023 \n \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on Wednesday, 20 September 2023. \n \nClaimant Shyatta Summons, pro se,  did not appear. \n \nMr.  James  A.  Arnold,  II,  Attorney-at-Law  of  Fort  Smith,  Arkansas,  appeared  on \nbehalf of Respondents. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above-styled matter on 20 September 2023, in Little Rock, \nArkansas,  on  respondents’ Motion  to  Dismiss.   This  claim  involves  an  alleged  workplace \ninjury occurring on 7 December 2022.  \n A Form AR-C was filed with the Commission on 20 January 2023 by the claimant’s \ncounsel at the time, Laura Beth York of Rainwater, Holt & Sexton.  A Form 2 was initially \nfiled with the Commission on 6 February 2023 accepting a claim for left hip, left thigh, and \nright arm injuries.  \nClaimant’s  counsel  filed  a  request  for  withdrawal  of  her  representation  on 6  April \n2023, and that request was granted by the Full Commission by way of an Order filed on 18 \nApril 2023.  \nOn  24  July  2023,  the  respondents  moved  for  a  dismissal  without  prejudice  for  the \nclaimant’s failure to prosecute his claim. The file, which was incorporated by reference at the \n\n SUMMONS- H300411 \n2 \n \nhearing,  reflects  no  request  for  a  hearing  on  the  claim  in  the  relevant  time  preceding  the \nrespondents’ motion. Appropriate notice was sent out, but the claimant failed to respond to \nthe Commission or appear to resist dismissal of the claim.  \n Based  on  the  record,  available  evidence,  and  argument  of  counsel,  I  am  inclined  to \nfind  that  the  Motion  to  Dismiss  should  be  granted  and  the  matter  should  be  dismissed \nwithout prejudice.  \nORDER \n Pursuant to the above, I find that the Motion to Dismiss should be granted and this \nmatter should be dismissed without prejudice at this time.   \nSO ORDERED. \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2327,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300411 SHYATTA SUMMONS, EMPLOYEE CLAIMANT SUN RISE LODGING/BEST WESTERN PLUS JFK INN & SUITES, EMPLOYER RESPONDENT EMPLOYERS INSURANCE CO., CARRIER RESPONDENT OPINION FILED 20 SEPTEMBER 2023 Hearing before Administrative Law Judge JayO. Howe in Little Rock...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:3"],"injuryKeywords":["hip"],"fetchedAt":"2026-05-19T23:02:58.526Z"},{"id":"alj-H010337-2023-09-15","awccNumber":"H010337","decisionDate":"2023-09-15","decisionYear":2023,"opinionType":"alj","claimantName":"Cynthia Vinson","employerName":"North Little Rock School District’s Transportation Department","title":"VINSON VS. NORTH LITTLE ROCK SCHOOL DISTRICT’S TRANSPORTATION DEPARTMENT AWCC# H010337 SEPTEMBER 15, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/VINSON_CYNTHIA_H010337_20230915.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"VINSON_CYNTHIA_H010337_20230915.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H010337 \n \n \nCYNTHIA VINSON, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nNORTH LITTLE ROCK SCHOOL DISTRICT’S \nTRANSPORTATION DEPARTMENT,   \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED SEPTEMBER 15, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, did not attend the dismissal hearing.  \n \nRespondents  represented  by  the  Honorable  Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on September 13, 2023 in the above-referenced case pursuant to Dillard \nv. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), for a determination \nof  whether  this  claim  should  be  dismissed  for  failure  to  prosecute  under  the  provisions  of  Ark. \nCode  Ann.  §11-9-702  (Repl.  2012)  and Arkansas Workers’ Compensation  Commission  Rule \n099.13.  \nAppropriate Notice of this hearing was provided to all parties to their last known address, \nin the manner prescribed by law.   \nThe record consists of the transcript of the September 13, 2023, hearing and the documents \nheld  therein.    Specifically,  the  Respondents  offered  one  exhibit  into  evidence,  consisting  of \nnineteen (19) numbered pages.  It was marked Respondents’ Exhibit 1.  Also, the Commission’s \n\nVinson – H010337 \n \n2 \n \nfile has been made a part of the record.  It is hereby incorporated into the September 13, hearing \ntranscript by reference.    \nProcedural History \n On January 6, 2021, the Claimant wrote a letter to the Commission requesting a hearing in \nthe  above-captioned  claim for workers’ compensation benefits.    At  that  time,  the  Claimant  was \nunrepresented.  Therefore, Clerk of the Commission transferred the claim to the Legal Advisors’ \nDivision for a mediation conference.  However, the Claimant failed to participate in the mediation \nprocess.  Therefore, the legal advisor returned the claim to  the Clerk of the Commission for the \nclaim to be assigned to an Administrative Law Judge, which was done. \n Subsequently, the Claimant retained an attorney to represent her in this matter.  Hence, the \nhearing process was started.  On April 28, 2021, a prehearing telephone conference was conducted \nin this case.  At that time, the claim was scheduled for a hearing on the merits for June 30, 2021.   \nHowever, on June 9, 2021, the Claimant’s attorney wrote to the Commission to request that the \nJune 20 hearing be rescheduled due a to personal conflict.  As a result, another full hearing was \nscheduled for July 20, 2021.  The Claimant’s attorney sent an email to the Commission the day \nprior to the hearing stating that there was a discovery issue regarding his client’s average weekly \nwage.  Therefore,  the  Claimant’s  attorney  asked  that  the  July  19  hearing  be  canceled.    Per \nagreement  of  the  parties,  I  canceled  the  full  hearing  and  returned the case to the Commission’s \ngeneral files.   \n Yet, for almost two years, there was no action whatsoever taken on the part of the Claimant \nto  pursue  her  claim for  workers’  compensation  benefits.  However,  on June  28,  2023,  the \nClaimant’s attorney filed a motion to withdraw from  representing  her  in  this  claim.    The  Full \n\nVinson – H010337 \n \n3 \n \nCommission entered an Order on July 11, 2023, granting the motion for the Claimant’s attorney \nto withdraw as her counsel of record in this matter.  \n   Still,  there  was  no  action  taken  by  the  Claimant  to  resolve  her  claim,  and  nor  did  she \nrequest a hearing.   \nTherefore, the Respondents filed a letter-motion with the Commission on July 14, 2023, \nrequesting that the claim be dismissed due to a lack of prosecution.  The Respondents provided \nthe Claimant with a copy of the motion via mail through the United States Postal Service.  \nThe Commission sent a letter to the Claimant on July 20, 2023, giving her a deadline of \ntwenty (20) days to file a written response to the motion with the Commission.  Said letter was \nmailed to the Claimant’s last known address via first-class and certified mail.   \nPer information obtained from the Postal Service, the Claimant picked this correspondence \nup from the Post Office on July 24, 2023.  The return receipt request for proof of delivery bears \nthe Claimant’s signature. \nYet, there has been no response from the Claimant.   \nTherefore, per a Hearing Notice mailed on August 10, 2023, the Commission notified the \nparties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim due \nto  a  lack  of  prosecution.    The  notice  was  sent  to  the  Claimant  via  first-class  and  certified  mail.  \nSaid hearing was scheduled for September 13, 2023, at the Commission in Little Rock, Arkansas.  \nThe  notice  that  the  Commission  sent  to  the  Claimant  via  first-class  mail  has  not  been \nreturned  to  Commission.    Per  delivery  information  received  from  the  Postal  Service  by  the \nCommission on August 14, 2023, the Claimant picked up the notice of hearing from the local Post \nOffice, in North Little Rock that same day.  Thus, my review of the proof of delivery demonstrates \nthat the Claimant signed for the hearing notice.  Hence, it bears her signature.    \n\nVinson – H010337 \n \n4 \n \nNevertheless, there has been no response from the Claimant.  \nSubsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  Yet, the Claimant did not attend the dismissal hearing.  However, the Respondents \nappeared through their attorney.   \nCounsel  stated  the  that the  Claimant  has  had  reasonable  time  to  move  forward  with  this \nclaim, but she has failed to do so.  Therefore, counsel moved that this claim be dismissed due to a \nlack of prosecution. \n        Discussion \nThe record before me proves that the Claimant has failed to promptly prosecute her claim \nfor workers’ compensation benefits.  The Claimant has not requested a hearing since July 2021, \nwhich is more than two (2) years ago.  More importantly, the Claimant did not appear at the hearing \nto object to her claim being dismissed and she has not responded to the notices of this Commission.   \nUnder these circumstances, I am persuaded that the Claimant has abandoned her claim for \nworkers’ compensation benefits.  Accordingly,  I  find  that  the  evidence  preponderates  that  the \nClaimant  has  failed  to  prosecute  her  claim for workers’ compensation benefits in  the  proper \nmanner set forth under the law.  Consequently, per Ark. Code Ann. §11-9-702 and Rule 099.13 of \nthis  Commission,  I  find  that  this  claim  should  be  and  is  hereby  respectfully  dismissed, without \nprejudice, to the refiling of it, within the limitation period specified by law.   \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law per Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n\nVinson – H010337 \n \n5 \n \n2. The Respondents filed with the Commission, a motion for dismissal of this \nclaim due to a lack of prosecution, for which a hearing was held.  \n \n3.  The Claimant did not appear at the hearing.  Moreover, she has not objected \nto her claim being dismissed.    \n \n4. The  Claimant  has  not  requested  a  hearing  since  July  2021.  Hence,  the \nevidence preponderates that the Claimant has failed to timely prosecute her \nclaim for workers’ compensation benefits.      \n \n5. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast  known  address,  in  the  manner  prescribed  by  law.    However,  the \nClaimant did not attend the hearing, and she has not objected to the motion \nto dismiss her claim.   \n \n            6. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby respectfully granted, without prejudice, per Ark. Code Ann. §11-9-\n702 and Commission Rule 099.13, to the refiling of it, within the limitation \nperiod specified by law.  \nORDER \nFollowing the findings of fact and conclusions of law set forth above, this claim is hereby \nrespectfully  dismissed  per  Ark.  Code  Ann.  §11-9-702  and  Commission  Rule  099.13, without \nprejudice, to the refiling of it, within the limitation period specified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":9160,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H010337 CYNTHIA VINSON, EMPLOYEE CLAIMANT NORTH LITTLE ROCK SCHOOL DISTRICT’S TRANSPORTATION DEPARTMENT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 15, 2023 Hearing held before Admin...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:02:54.394Z"},{"id":"alj-H208062-2023-09-14","awccNumber":"H208062","decisionDate":"2023-09-14","decisionYear":2023,"opinionType":"alj","claimantName":"Donovan Warren","employerName":"Agerton Timber, LLC","title":"WARREN VS. AGERTON TIMBER, LLC AWCC# H208062 SEPTEMBER 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WARREN_DONOVAN_H208062_20230914.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WARREN_DONOVAN_H208062_20230914.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208062 \n \n \nDONOVAN WARREN, \nEMPLOYEE                                                                                                              CLAIMANT \n \nAGERTON TIMBER, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nPRAETORIAN INS. CO./SEDGWICK CLAIMS MG’T  \nSERVICES, INC. \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER FILED SEPTEMBER 14, 2023, \nHOLDING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE IN \nABEYANCE FOR 45 DAYS \n \nHearing conducted on Thursday, September 7, 2023, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ)  Mike  Pickens,  in  El  Dorado, \nUnion County, Arkansas. \n \nThe  claimant,  Mr.  Warren  Donovan,  pro  se,  of  Strong,  Union  County,  Arkansas,  appeared  in \nperson at the hearing.  \n \nThe  respondents  were  represented  by  the  Honorable  Randy  P.  Murphy,  Anderson,  Murphy  & \nHopkins, Little Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A  hearing  was  conducted  on  Thursday,  September  7,  2023,  to  determine  whether  this \nclaim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) \n(2022)  Lexis  Replacement)  and  Commission  Rule  099.13  (2022  Lexis  Repl.).  The  respondents \nfiled a motion to dismiss (MTD) with the Commission on June 28, 2023, requesting this claim be \ndismissed without prejudice for lack of prosecution.  \n\nDonovan Warren, AWCC No. H208062 \n \n2 \n \n           In accordance with applicable Arkansas law, the claimant was mailed due and proper legal \nnotice of both the respondents’ MTD as well as a copy of the hearing notice at his current addresses \nof record via the United States Postal Service (USPS), First Class Certified Mail,  \nReturn Receipt Requested, which he received, as evidenced by the fact he appeared in person at \nthe hearing. At the hearing, the claimant respectfully objected to the respondents’ MTD without \nprejudice.  \n          The claimant and the respondents’ attorney had an opportunity to visit in person before the \nhearing commenced. On the record at the hearing the parties mutually agreed to request the ALJ \nhold a ruling on the respondents’ MTD in abeyance for a period of 45 days  –  which  would  be \nSunday, October 22, 2023, thereby making the 45-day deadline Monday, October 23, 2023, since \nthe actual deadline falls on a weekend  – in order to allow the respondents sufficient time for the \nclaimant  to  sign  and  provide  the  respondents  an  updated  Health  Insurance  Portability  and \nAccountability (HIPAA)-compliant medical release; to obtain any and all outstanding medical bills \nand records; and for the parties to attempt to amicably resolve any and all outstanding issues, if \nany. The parties also advised the ALJ there was a good chance the claim may be resolved via a \njoint petition settlement agreement once the claimant provided the respondents with the required \nmedical  release  so  they  may  obtain  any  and  all  relevant  medical  records  and  other  necessary \ndocumentation, if any. The ALJ strongly encouraged the claimant to retain the services of a \nworkers’ compensation attorney to represent him in this matter. \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein  and  attached  thereto,  as  well  as  the  Commission’s  entire claim  file  in  this  matter  by \nreference. \n \n\nDonovan Warren, AWCC No. H208062 \n \n3 \n \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ MTD. Rather than recite \na detailed analysis of the record, the preponderance of the evidence adduced at the hearing revealed \nthe parties mutually agreed the ALJ hold a decision on the respondents’ subject MTD in abeyance \nfor a period of 45 days for the reasons set forth above. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, and as I advised the parties on the record at the hearing, I hereby make \nthe following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. The ALJ strongly encourages the claimant to retain the services of a workers’ \n                  compensation attorney to represent him in this matter.  \n \n      3.         The ALJ will hold in abeyance a decision on the respondents’ subject MTD without \n                 prejudice for a period of 45 days, or until Monday, October 23, 2023, since 45 days \n                 from the hearing date falls on Sunday, October 22, 2023. \n \n      4.         The parties have 45 days from the hearing date, or until Monday, October 23, \n                  2023, to obtain any and all additional information they require and to attempt to  \n                  resolve any and all outstanding issues, if any remain, and/or to settle this claim via \n                  a joint petition settlement agreement.  \n \n      5.         If the parties are unable to resolve any and all outstanding issues; and/or within \n                  five (5) days after the expiration of this 45-day time-period the claimant fails and/or \n                  refuses to request, in writing (with a copy to the respondents’ attorney, of course), \n                  a hearing before the Commission and to advise both the Commission and the  \n                  respondents exactly what specific issue(s) he believes are ripe for a hearing, the \n                  ALJ shall grant the respondents’ MTD without prejudice filed June 28, 2023, \n                  without the necessity of either the respondents filing another motion, and without \n                  holding another hearing on the subject motion. \n \n \n\nDonovan Warren, AWCC No. H208062 \n \n4 \n \n          If they have not already done so, the respondents shall pay the court reporter’s invoice within \n \n twenty (20) days of the filing of this opinion and order. \n \n          IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Mike Pickens \n                                                                                               Administrative Law Judge \n \n \n \n \nMP/mp","textLength":6752,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208062 DONOVAN WARREN, EMPLOYEE CLAIMANT AGERTON TIMBER, LLC, EMPLOYER RESPONDENT PRAETORIAN INS. CO./SEDGWICK CLAIMS MG’T SERVICES, INC. INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED SEPTEMBER 14, 2023, HOLDING RESPONDENTS’ MOTION TO DISMISS WI...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:02:52.326Z"},{"id":"full_commission-G605091-2023-09-13","awccNumber":"G605091","decisionDate":"2023-09-13","decisionYear":2023,"opinionType":"full_commission","claimantName":"Patricia Kizzire","employerName":"Petrus Stuttgart, Inc","title":"KIZZIRE VS. PETRUS STUTTGART, INC. AWCC# G605091 SEPTEMBER 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Kizzire_Patricia_G605091_20230913.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Kizzire_Patricia_G605091_20230913.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G605091 \n \nPATRICIA G. KIZZIRE, \nEMPLOYEE \n \nCLAIMANT \nPETRUS STUTTGART, INC.,  \nEMPLOYER \n \nRESPONDENT NO. 1 \nCENTRAL ARKANSAS AUTO DEALERS SIF/ \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1 \n \n \n \nRESPONDENT NO. 2 \n  \n      \nOPINION FILED SEPTEMBER 13, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE KAREN H. \nMcKINNEY, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Vacated & Remanded. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nFebruary 22, 2023.  The administrative law judge granted the respondents’ \nmotion to dismiss.  After reviewing the entire record de novo, the Full \nCommission vacates the administrative law judge’s order dismissing the \nclaim.  We remand the matter to the administrative law judge for \nconsideration of whether the respondents have paid for reasonably \n\nKIZZIRE - G605091   2\n  \n \n \nnecessary medical treatment provided in connection with the compensable \ninjury to the claimant’s right knee.     \nI.  HISTORY \n The record indicates that Pat Kizzire, now age 78, became employed \nwith the respondents, Petrus Stuttgart, Inc. in January 1998.  The parties \nstipulated that the claimant “sustained a compensable scheduled injury to \nthe right knee” on December 21, 2015.     \nAccording to the record, the claimant treated at Baptist Health \nStuttgart Medical Clinic beginning December 22, 2015 where the claimant \nwas assessed with “Right knee pain.”  The claimant underwent a “Right \nknee arthroscopic partial lateral meniscectomy and tricompartmental \nchondroplasty” on July 18, 2016.  The pre- and post-operative diagnosis \nwas “Right knee lateral meniscus tear and osteoarthritis.”  The claimant \ntestified that she underwent a right knee replacement in July 2017. \nThe claimant filed a Form AR-C, CLAIM FOR COMPENSATION, on \nNovember 28, 2017.  The CLAIM INFORMATION section of the Form AR-C \nindicated that the claimant was claiming “additional benefits” to include \nAdditional Temporary Total, Additional Temporary Partial Disability, \nAdditional Permanent Partial, Additional Medical Expenses, Rehabilitation, \nand Attorney Fees.       \n\nKIZZIRE - G605091   3\n  \n \n \nThe record indicates that the respondents paid temporary total \ndisability benefits through February 25, 2018.  On September 19, 2018, Dr. \nD. Gordon Newbern assigned the claimant a “right lower extremity \nimpairment of 50%.”  The parties stipulated that the respondents accepted \na 37% permanent anatomical impairment rating.   \n A pre-hearing order was filed on January 30, 2019.  The claimant \ncontended, “Claimant contends that admitted compensable injuries were \nsustained to both knees 12/21/15.  Claimant has had a knee replacement \non the right side, for which she was given an impairment rating of 50%.  \nRespondents have indicated they are only accepting 37%.  The different \n(sic) is controverted.  Claimant is also in need of treatment for her left \nknee/leg.  Respondents are denying claim.  Claimant reserves the right to \npursue other benefits to which claimant may become entitled in the future.  \nClaimant’s attorney respectfully requests that any attorney’s fees \nowed by claimant on controverted benefits paid by award or otherwise \nbe deducted from claimant’s benefits and paid directly to claimant’s \nattorney by separate check, and that any Commission Order direct the \nrespondent to make payment of attorney’s fees in this manner.”   \n The respondents contended, “Respondents contend that they \naccepted an injury to the claimant’s right lower extremity.  Respondents \nfurther contend that the claimant did not sustain an injury to her left lower \n\nKIZZIRE - G605091   4\n  \n \n \nextremity that is supported by objective medical findings.  Finally, \nRespondents contend that the 50% rating assessed by Dr. Newbern on \nSeptember 19, 2018 specifically uses portions of the Guides that use pain \nas a basis for impairment in contravention of Ark. Code Ann. §11-9-522(g) \nwhich provides that the Commission shall adopt an impairment rating guide \nto be used in the assessment of anatomical impairment and that the guide \nshall not include pain as a basis for impairment....”   \n The parties agreed to litigate the following issues:  “compensability \n(left leg pursuant to Ark. Code Ann. §11-9-102; medical treatment; \nadditional thirteen percent (13%) in anatomical impairment; and \nattorney’s fees.  All other issues are reserved.”   \n A hearing was held on July 25, 2019.  The claimant testified on direct \nexamination: \nQ.  You are still undergoing active medical treatment and still \nunder active care for your right knee in particular; correct? \nA.  Yes. \n \n An administrative law judge filed an opinion on October 9, 2019.  The \nadministrative law judge found, among other things, that the claimant \nproved “she sustained a left knee injury on December 21, 2015, that \nremains untreated.”  The administrative law judge directed the respondents \n“to pay an additional thirteen percent (13%) in anatomical impairment for \nthe claimant’s right knee.”  The administrative law judge found, “4.  The \n\nKIZZIRE - G605091   5\n  \n \n \nrespondents are directed to pay all reasonable and necessary medical \nexpenses for both knees within thirty (30) days of receipt, pursuant to Rule \n30.”   \n The respondents appealed to the Full Commission.  In an opinion \nfiled August 14, 2020, the Full Commission reversed the administrative law \njudge’s October 9, 2019 decision with regard to the claimant’s left knee.  \nThe Full Commission found that the claimant did not prove she sustained a \ncompensable injury to her left knee.  The Full Commission also found that \nthe claimant did not prove she sustained permanent anatomical impairment \ngreater than the 37% rating accepted and paid by the respondents. \n On May 19, 2021, the Full Commission granted a motion by Gary \nDavis to withdraw as the claimant’s attorney. \n The record contains a RESPONDENTS’ MOTION TO DISMISS with \na CERTIFICATE OF SERVICE dated October 12, 2022.  The respondents \nstated in part: \n1.  Claim number G605091 involves an injury on December \n21, 2015, when the claimant sustained a compensable \ninjury to her right knee.   \n2.  Respondents filed the First Report of Injury on July 19, \n2016, and the AR-2 on July 27, 2016, accepting this as a \ncompensable injury to the right knee.... \n3.  Claimant filed an AR-C on November 28, 2017, requesting \nboth initial and additional benefits.... \n4.  Issues arose in this claim regarding whether the claimant \nalso sustained a compensable injury to her left knee, \nclaimant’s entitlement to additional medical treatment, and \nthe claimant’s permanent impairment rating. \n\nKIZZIRE - G605091   6\n  \n \n \n5.  Following a hearing and appeal to the Full Commission, \nthe Full Commission found that the respondents had paid \nthe correct impairment rating and that the claimant did not \nprove she sustained a compensable injury to her left \nknee.... \n6. The Full Commission’s August 14, 2000, opinion was not \nappealed and is now res judicata. \n7. Claimant’s attorney filed a Motion to Withdraw as Counsel \non April 27, 2021, which was granted by the Full \nCommission in an order dated May 19, 2021.... \n8.  All justiciable issues have been resolved by the hearing \nand Full Commission opinion. \n9.  Claimant has not requested a hearing on this claim in the \nlast six months. \n                    10.  Pursuant to A.C.A. §11-9-702(a)(4), 11-9-702(d) and/or  \nCommission Rule 099.13 Respondents move that claim \nG605091 be dismissed without prejudice for failure to \nprosecute this claim.        \n \nAfter a hearing, an administrative law judge filed an opinion on \nFebruary 22, 2023.  The administrative law judge ordered, “there is no \nalternative but to find that the Motion to Dismiss should be granted and this \nmatter should be dismissed without prejudice at this time.”   \nThe claimant filed a notice of appeal to the Full Commission. \nOn May 12, 2023, the respondents filed a MOTION TO ADMIT \nADDITIONAL EVIDENCE ON APPEAL TO THE FULL COMMISSION.  \nThe respondents moved to introduce into the record “a Conditional \nPayment Search from CMS to determine if Medicare has paid for any \nmedical treatment that had been authorized by Respondents for claimant’s \ncompensable right knee injury.”   \n\nKIZZIRE - G605091   7\n  \n \n \nThe Full Commission filed a unanimous ORDER on June 23, 2023:  \n“After consideration of Respondents’ motion with no objection by the \nClaimant to the motion and all other matters properly before the \nCommission, we find that the Respondents’ Motion To Admit Additional \nEvidence On Appeal To The Full Commission should be and hereby is \ngranted.” \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-702(Repl. 2012) provides, in pertinent part: \n  (b)  TIME FOR FILING ADDITIONAL COMPENSATION.... \n(d)  If within six (6) months after the filing of a claim for \nadditional compensation no bona fide request for a hearing \nhas been made with respect to the claim, the claim may, upon \nmotion and after hearing, if necessary, be dismissed without \nprejudice to the refiling of the claim within the limitation period \nspecified in subsection (b) of this section.   \n \n An administrative law judge determined in the present matter, “I am \ncompelled to find that the Motion to Dismiss should be granted due to the \nclaimant’s lack of prosecution and the matter should be dismissed without \nprejudice.”  The Full Commission does not affirm this finding.     \n The parties stipulated that the claimant sustained a compensable \ninjury to her right knee on December 21, 2015.  The claimant treated with \nvarious medical providers including Baptist Health Stuttgart Medical Clinic.  \nThe claimant filed a Form AR-C, CLAIM FOR COMPENSATION, on \nNovember 28, 2017.  The claimant contended, among other things, that she \n\nKIZZIRE - G605091   8\n  \n \n \nwas entitled to “Additional Medical Expenses.”  A pre-hearing order was \nfiled on January 30, 2019 wherein the claimant contended that was entitled \nto an anatomical impairment rating greater than that accepted by the \nrespondents.  The claimant also contended, “Claimant reserves the right to \npursue other benefits to which claimant may become entitled in the future.”  \nThe parties agreed to litigate issues including “medical treatment.”   \n A hearing was held on July 25, 2019.  The claimant testified on direct \nexamination that she was “still under active care” for her right knee.  An \nadministrative law judge filed an opinion on October 9, 2019.  The \nadministrative law judge found that the claimant sustained a compensable \ninjury to her left knee in addition to the stipulated compensable injury to the \nclaimant’s right knee.  The administrative law judge ordered the \nrespondents to pay an increased anatomical impairment rating.  The \nadministrative law judge also found, “4.  The respondents are directed to \npay all reasonable and necessary medical expenses for both knees within \nthirty (30) days of receipt, pursuant to Rule 30.”  The respondents appealed \nto the Full Commission.   \n The Full Commission reversed the administrative law judge’s finding \nthat the claimant proved she sustained a compensable injury to her left \nknee, and we reversed the administrative law judge’s finding that the \nclaimant was entitled to an increased impairment rating.  However, the Full \n\nKIZZIRE - G605091   9\n  \n \n \nCommission did not disturb the administrative law judge’s implicit finding \nthat directed the respondents to pay for reasonably necessary medical \ntreatment provided in connection with the claimant’s compensable right \nknee injury. \n The respondents now seek to dismiss the claim without prejudice.  \nThe respondents assert that the claimant has “failed to prosecute this \nclaim.”  The record does not support this assertion.  The Full Commission \nfinds that the claimant has been diligent in prosecuting her claim.  The \nparties stipulated that the claimant sustained a compensable injury to her \nright knee on December 21, 2015.  The Full Commission did not modify or \nreverse the administrative law judge’s October 9, 2019 opinion which \ndirected the respondents to pay for all reasonably necessary medical \ntreatment provided in connection with the compensable injury.  There has \nnot been a “want of prosecution” in the present claim, and the evidence \ndemonstrates that the claimant has been diligent in requesting appropriate \nbenefits.   \n The respondents have introduced into the record documentation of \nbilling from various medical providers including the original medical \nprovider, Baptist Health Medical Center Stuttgart.  The Full Commission \ntherefore vacates the administrative law judge’s dismissal of this claim.  We \nremand the matter to the administrative law judge for consideration of the \n\nKIZZIRE - G605091   10\n  \n \n \nclaimant’s contention that the respondents have failed to pay for reasonably \nnecessary medical treatment provided in connection with the compensable \ninjury to the claimant’s right knee.   \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \nI must respectfully dissent from the Majority’s determination that this \nmatter should be remanded to the administrative law judge for \nconsideration of whether the respondents have paid for reasonably \nnecessary medical treatment provided for the claimant’s 2015 right knee \ninjury. \nThe facts in this matter are not in dispute.  Prior to the respondent’s \nOctober 12, 2022 Motion to Dismiss, the last filing was a May 19, 2021 \norder by the Full Commission granting a motion by Gary Davis to withdraw \nas the claimant’s attorney.  The claimant testified for the first time at the \nJanuary 10, 2023 motion to dismiss hearing that after obtaining authorized \nmedical treatment in 2020 which was paid for by the respondent carrier, the \n\nKIZZIRE - G605091   11\n  \n \n \nclaimant sought additional treatment on her right knee that was billed to and \npaid for by Medicare.  (Hrng. Tr., P. 9).  Concurrent with a May 12, 2023 \nmotion to admit additional evidence on appeal, which was ultimately \ngranted by the Commission, the respondents submitted a payment \nsummary form from Centers for Medicare and Medicaid Services \nConditional Payment Search reflecting its diligence in determining if \nMedicare has paid for any authorized treatment of the claimant’s right knee. \nThis summary shows that no payments have been made by Medicare since \n2019.  Thus, Medicare has not paid for any treatment of Claimant’s \ncompensable right knee injury after she last sought treatment in 2020 which \nwas paid by the respondents.  No hearing was ever requested by the \nclaimant on this issue. \nOur rules provide that “If within six (6) months after the filing of a \nclaim for additional compensation no bona fide request for a hearing has \nbeen made with respect to the claim, the claim may, upon motion and after \nhearing, if necessary, be dismissed without prejudice.”  Ark. Code Ann. § \n11-9-702(d).  Further, Commission Rule 99.13 states “[u]pon meritorious \napplication to the Commission from either party in an action pending before \nthe Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, \nenter an order dismissing the claim for want of prosecution.”  \n\nKIZZIRE - G605091   12\n  \n \n \nWhile the Majority finds that the claimant’s ongoing medical \ntreatment satisfies the Commission’s requirement that a claim be diligently \nprosecuted, it is clear that without prompting by the motion to dismiss filed \nby the respondents, the claimant would not have addressed her nearly four-\nyear-old concerns regarding Medicare billing.  Further, there are no \noutstanding issues to litigate in this matter, nor has any hearing request \nbeen made on any issues since 2019.  Those issues are res judicata.  For \nthese reasons, this matter should be dismissed without prejudice. \nFor the reasons stated above, I respectfully dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":16659,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G605091 PATRICIA G. KIZZIRE, EMPLOYEE CLAIMANT PETRUS STUTTGART, INC., EMPLOYER RESPONDENT NO. 1 CENTRAL ARKANSAS AUTO DEALERS SIF/ RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL","outcome":"dismissed","outcomeKeywords":["remanded:1","dismissed:7","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T22:29:46.124Z"},{"id":"full_commission-H205844-2023-09-13","awccNumber":"H205844","decisionDate":"2023-09-13","decisionYear":2023,"opinionType":"full_commission","claimantName":"Robert Scott","employerName":"Correct Craft Holdings, LLC & Basscat,","title":"SCOTT VS. CORRECT CRAFT HOLDINGS, LLC & BASSCAT, AWCC# H205844 SEPTEMBER 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Scott_Robert_H205844_20230913.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Scott_Robert_H205844_20230913.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H205844 \n \nROBERT W. SCOTT, \nEMPLOYEE \n \nCLAIMANT \nCORRECT CRAFT HOLDINGS, LLC & \nBASSCAT, EMPLOYER \n \nRESPONDENT \nZENITH INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED SEPTEMBER 13, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents represented by the HONORABLE JAMES A. ARNOLD, II, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJune 6, 2023.  The administrative law judge found that the claimant failed to \nprove he sustained a compensable hernia.  After reviewing the entire record \nde novo, the Full Commission finds that the claimant proved he sustained a \ncompensable hernia.  The Full Commission finds that the medical treatment \nof record was reasonably necessary, and that the claimant proved he was \nentitled to a period of temporary total disability benefits.   \nI.  HISTORY \n Robert W. Scott, now age 52, testified on direct examination: \n\nSCOTT - H205844  2\n  \n \n \nQ.  Now you have had pre-existing problems with your \nhernias, is that right? \n  A.  There was a bulge or whatever. \n  Q.  Did you ever have surgery for the hernia? \n  A.  No, sir.   \nQ.  So you never really knew anything other than this little \nbulge, is that correct? \n  A.  Yes, sir. \n \n Mr. Scott testified that he became employed with the respondents in \nFebruary 2022.  The claimant testified on direct examination: \n  Q.  And you worked for Basscat and Vinway, is that right? \n  A.  Yes. \nQ.  Just for the record, because some people might not know \nwhat Basscat does, what is Basscat producing? \nA.  They make high end fishing boats.   \n \n The parties stipulated that the employee-employer-carrier \nrelationship existed on or about August 3, 2022.  The claimant testified on \ndirect examination: \nQ.  And it’s my understanding that you were laying fiberglass \nin the bow of one of those big high-end boats, and you were \nbending over laying that fiberglass and felt an immediate pain, \nis that correct? \nA.  Yes....I went to the supervisor and asked what can I help \nwith, and he was laying fiberglass in a boat, and the man that \ndoes it there as well, he needed help because they had three \nto get done that day....I mixed up some residue and went over \nthere and started doing that boat.  I bent over, and you lay a \npiece of fiberglass about that long in there after you’ve soaked \nit, and I didn’t like the way it laid, it wasn’t smooth and nice \nand it didn’t look very nice, so I pulled it back up.  I raised up, \nand it was close to being finished, time for lunch.  When I \nraised up I felt a sharp pain, and I thought, “That was weird.”   \nMy jug of resin was almost gone, depleted, because I knew it \nwas close to lunchtime, so as I went to go dump the excess \namount of resin it was an odd, it wasn’t like your heart pumps, \n\nSCOTT - H205844  3\n  \n \n \nyou know how you hit your finger with a hammer, you heart \npumps and you feel pain?  Well, this was sporadic and it \nwasn’t normal, and it kept getting worse, so I went and spoke \nto my supervisor, Jessie, and told  him, I said, “Something’s \nwrong.”   \n \n The respondents’ attorney cross-examined the claimant: \nQ.  At the time you felt pain on August 3\nrd\n you were not lifting \nanything? \n  A.  No, I was not. \nQ.  Okay.  What you did was you had been bending over the \nboat, and when you raised, when you straightened up is when \nyou felt pain? \nA.  Yeah.   \n \n The claimant testified that he “clocked out” from work following the \nincident and drove himself to a hospital.   \n The medical evidence corroborated the claimant’s testimony.  \nAccording to the record, the claimant received emergency treatment at \nBaxter Regional Medical Center on August 3, 2022: \n51 yo M pt presents for abd. pain.  He has a hernia at his belly \nbutton that he feels he has gotten worse today.  He felt a \nmoderate to severe tearing pain.... \nAbdomen is soft and nontender, no hepatosplenomegaly.  \nThere is a have a (sic) buccal hernia present easily reduced. \n \n A physician diagnosed “1.  Umbilical hernia, 08/03/2022.”  A CT of \nthe claimant’s abdomen and pelvis was taken on August 3, 2022 with the \nimpression, “Ventral hernia with a loop of bowel in this with the opening of \nthe hernia measuring 3.1 cm.” \n\nSCOTT - H205844  4\n  \n \n \n The record contains a Work/School Release Form dated August 3, \n2022.  The Work/School Release Form indicated, “He/she may return to \nwork/school after this date:  8/15.”  The claimant was restricted to “No \nheavy lifting over 15 lbs....Restrictions apply through this date:  8/15 or \ncleared by Surgeon.”     \n Dr. Lance R. Lincoln reported on August 4, 2022: \nWrks at Bass Cat.  Yesterday working on a boat bent over \nfiberglassing.  New job for him.  Leaning over the boat and \nwhen he raised up got a sharp pain in abdomen.  Was sharp.  \nRated at 8/10.  Since he has a bulge in his navel.  The pain \nhas steadily declined but the lump is really tender.  Went to \nER and [did] CT.  Showed the hernia and it was tender.  Made \na referral to surgery on the 15\nth\n.  Only seeing me due to \nprotocol.... \nABDOMEN:  normal, bowel sounds present, soft, 3 cm \numbilical hernia, and very tender.  Easily reduces, \nnondistended.   \n \n Dr. Lincoln assessed “1.  Umbilical hernia without obstruction and \nwithout gangrene.”  Dr. Lincoln assigned “Light duty, no lifting.”   \n Dr. John A. Carlisle examined the claimant on August 15, 2022: \nPatient words:  I was doing fiberglass bent over the side of a \nboat.  I had done it several times that day when all of a \nsudden I felt a tear after standing up. \nThe patient is a 51 year old male who presents with an \numbilical hernia.  This hernia is thought to be acquired.  \nSymptoms include bulge in the paraumbilical area (just \nsuperior to umbilicus) and abdominal pain.  The pain is \nlocated in the lower abdomen.  There is no radiation.  The \npatient describes the pain as dull and aching.  Onset was \nsudden 12 day(s) ago.  Onset followed bending (“bending \nover into the side of a boat working fiberglass, stood up and it \nstung”).  The symptoms occur constantly.  The patient \n\nSCOTT - H205844  5\n  \n \n \ndescribes this as moderate in severity and unchanged.  \nSymptoms are exacerbated by bending (& twisting).  \nSymptoms are relieved by recumbency.... \nThe injury is currently under review for a worker’s comp claim.  \nClaim # unavailable at this time as they are “investigating” the \ncause of the injury.... \nToday’s Impression:  08/15/22 – JAC – Patient seen today \nfor hernia related concerns.  He does not remember when he \nfirst noticed it but possibly a year or more.  He reports the \nother day at work he bent over wrong and it “popped out and \nwas very painful”.  He was evaluated in the ER shortly after \nthat where a CT scan was completed.  I reviewed his results \nwhich revealed a ventral hernia with a loop of bowel in the \nopening approximately 3.1 cm in size.  On exam, he has a \nreducible 1cm umbilical hernia which is tender on exam.  I \nwould recommend a robotic repair of his hernia[.]   \n \n The claimant testified that he returned to light-duty work for the \nrespondents on or about August 15, 2022.  The claimant testified that he \nperformed light-duty work for approximately one week:  “I worked the whole \nweek until Friday, and then I was brought into one of the offices and said \nthey no longer needed my services.”   \nDr. Carlisle performed surgery on September 16, 2022:  “DA VINCI \nGEN XI VENTRAL HERNIA, robot assist laparoscopic umbilical hernia \nrepair with mesh.”  The pre- and post-operative diagnosis was “Umbilical \nhernia.”   \n Dr. Carlisle noted on October 3, 2022, “Post op visit s/p RA umbilical \nhernia repair.  He is doing well.  His surgical incisions are healing well.  I \nadvised to continue to limit heavy lifting for 2 additional weeks and then he \ncan return to normal activity.  He may f/up with me as normal.”           \n\nSCOTT - H205844  6\n  \n \n \n A pre-hearing order was filed on March 14, 2023.  The claimant \ncontended, “The Claimant contends that he sustained a compensable \nhernia while performing employment services for the respondent employer.  \nHis injury was sudden and his need for surgery was directly related to him \nbending over a boat while laying fiberglass and exerting himself for \nemployer requiring immediate medical intervention.  The Claimant contends \nthat he is entitled to payment of the medical expenses related to his \ntreatment for the Hernia.  The Claimant contends that he is entitled to TTD \n(dates to be determined).”   \n The respondents contended, “Respondents contend that the \nClaimant is not entitled to Arkansas Workers’ Compensation benefits for his \nhernia.”   \n The text of the pre-hearing order indicated that the parties agreed to \nlitigate the following issues: \n1.  Compensability of work-related hernia injury. \n2. Claimant’s entitlement to medical and reimbursement for \nmedical bills related to his hernia claim. \n3.  Entitlement to past due temporary total disability benefits, \nthe dates to be determined.   \n4. Controverted attorney’s fee. \n5.  All issues are reserved.   \n \n   A hearing was held on April 19, 2023.  The claimant testified on re-\ndirect examination: \nQ.  Help the judge understand what you meant by bending.  \nI’ve been there, I’ve seen the livewells and those kinds of \n\nSCOTT - H205844  7\n  \n \n \nthings, but you’re going to have to kind of explain what do you \nmean by “bending over”?  Can you kind of demonstrate that \nfor the judge? \nA.  I can.  I’ll use the bannister if that’s okay....I was right on \nthe bow in a hole where, I think that’s where they put the logs \nin.  It’s an elongated hole about that wide (demonstrating).  I \nbent over like this (demonstrating) and way up inside there, I \nhad to move my nose or my mouth when I’m up underneath \nthere trying to pump this fiberglass in there laying flat like this \npaint is here on this black line.... \nQ.  So for the record, we don’t have a video here, but for the \nrecord, you’re leaning way over, almost down to where you’re \ntouching your toes? \nA.  Yeah.  I was actually – my head was hidden.  You can hit \nyour head on that bottom of the boat.  That’s how far into the \nboat I was.   \nQ.  Okay.  And you’re in this, would you say this is an \nexaggerated bend over? \nA.  Yes, sir.  I was bearing down like this (demonstrating).  I \nwas almost on my tippy toes, yes.   \nQ.  All right.  So when you raised back up, you felt something \ntear? \nA.  Yeah.  There was a really sharp pain, and I thought “What \nwas that?”  And I probably, from here to that door you walk, \nthere’s a doorway right there, maybe five feet from where I \nwas at....it was like somebody was kicking me on the inside of \nmy stomach with boots on.  That’s what it felt like....I told my \nsupervisor, Jessie, clocked out, and I drove myself to the \nhospital.   \n \n An administrative law judge filed an opinion on June 6, 2023.  The \nadministrative law judge found that the claimant failed to prove he sustained \na compensable injury.  The claimant appeals to the Full Commission.   \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-523(Repl. 2012) provides, in pertinent part: \n(a)  In all cases of claims for hernia, it shall be shown to the \nsatisfaction of the Workers’ Compensation Commission: \n\nSCOTT - H205844  8\n  \n \n \n(1) That the occurrence of the hernia immediately followed as \nthe result of sudden effort, severe strain, or the application \nof force directly to the abdominal wall; \n(2) That there was severe pain in the hernial region; \n(3) That the pain caused the employee to cease work \nimmediately; \n(4) That notice of the occurrence was given to the employer \nwithin forty-eight hours thereafter; and \n(5) That the physical distress following the occurrence of the \nhernia was such as to require the attendance of a licensed \nphysician within seventy-two (72) hours after the \noccurrence. \n(b)(1)  In every case of hernia, it shall be the duty of the \nemployer forthwith to provide the necessary and proper \nmedical, surgical, and hospital care and attention to effectuate \na cure by radical operation of the hernia, to pay all reasonable \nexpenses in connection therewith, and, in addition, to pay \ncompensation not exceeding a period of twenty-six (26) \nweeks.     \n \nAn administrative law judge found in the present matter, “3.  That the \nclaimant has failed to satisfy the required burden of proof to show that he \nsustained a compensable, work-related hernia on August 3, 2022.”  The \nFull Commission does not affirm this finding.   \nThe claimant, who the Full Commission finds was a credible witness, \ntestified that he suffered from a pre-existing “bulge” in his abdomen.  There \nis no indication of record, however, that the claimant required medical \ntreatment for a hernia prior to the work-related incident in the present \nmatter.  The claimant became employed with the respondents in February \n2022, and the parties stipulated that the employment relationship existed on \nAugust 3, 2022.  The claimant testified that he was “bending over” the bow \n\nSCOTT - H205844  9\n  \n \n \nof a boat during the course of his employment with the respondents, \ninstalling fiberglass.  The claimant agreed on re-direct examination that he \nwas “leaning way over” into a boat to the extent that he was nearly touching \nhis toes.  The claimant testified, “When I raised up I felt a sharp pain....it \nwas like somebody was kicking me on the inside of my stomach with boots \non.”  As the Full Commission has discussed supra, the medical evidence of \nrecord corroborated the claimant’s testimony.  It was noted at Baxter \nRegional Medical Center on August 3, 2022 that the claimant “felt a \nmoderate to severe tearing pain.”  Dr. Lincoln noted on August 4, 2022, \n“Leaning over the boat and when he raised up he got a sharp pain in \nabdomen.  Was sharp.”  Dr. Carlisle noted the claimant’s credible history on \nAugust 15, 2022, “I felt a tear after standing up.”   \nThe Full Commission finds in the present matter that occurrence of \nthe hernia (1)  immediately followed as the result of “sudden effort.”  The \nclaimant testified that he felt a sharp pain after leaning over, nearly touching \nhis toes, and raising up.  The Arkansas Court of Appeals has held that an \nemployee sustained a compensable hernia after “bending over and \nstraightening up.”  See Price v. Little Rock Packaging Co., 42 Ark. App. \n238, 856 S.W.2d 317 (1993).  The Full Commission likewise finds in the \npresent matter that the claimant’s hernia occurred immediately following his \n“bending and straightening” at work on August 3, 2022. \n\nSCOTT - H205844  10\n  \n \n \nThe Full Commission also finds that there was (2) severe pain in the \nhernial region following the incident.  The claimant credibly testified that he \nfelt a “sharp pain” in his abdomen, “like somebody was kicking me on the \ninside of my stomach with boots on.”  The evidence demonstrates that the \nclaimant (3) ceased work immediately.  The claimant testified that he \n“clocked out” immediately following occurrence of the hernia in order to \nseek medical treatment.  The claimant proved (4) that notice of the \noccurrence was given to the employer within forty-eight (48) hours \nthereafter.  The claimant testified that he informed his supervisor of the \noccurrence immediately following the accident.  Finally, the evidence \ndemonstrates that (5) the attendance of a licensed physician was required \nwithin seventy-two (72) hours after the occurrence.  The Full Commission \nthus finds that the claimant proved he sustained a compensable hernia in \naccordance with each applicable element of Ark. Code Ann. §11-9-\n523(a)(Repl. 2012).      \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved he sustained a compensable hernia in accordance \nwith Ark. Code Ann. §11-9-523(a)(Repl. 2012).  We find that the medical \ntreatment of record was reasonably necessary in accordance with Ark. \nCode Ann. §11-9-523(b)(1)(Repl. 2012) and Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  The evidence demonstrates that the claimant \n\nSCOTT - H205844  11\n  \n \n \nremained within a healing period and was totally incapacitated from earning \nwages from August 3, 2022 through August 15, 2022.  The claimant \nreturned to work at light duty from August 15, 2022 until the respondents \nterminated the claimant’s employment effective August 22, 2022.  The \nclaimant proved he was again totally incapacitated from earning wages and \nremained within his healing period beginning August 23, 2022 and \ncontinuing until October 17, 2022 in accordance with Dr. Carlisle’s October \n3, 2022 report.  The claimant therefore proved he was entitled to temporary \ntotal disability benefits from August 3, 2022 through August 15, 2022, and \nfrom August 23, 2022 until October 17, 2022.  See Ark. Code Ann. §11-9-\n523(b)(1)(Repl. 2012);  Ark. State Hwy. Dept. v. Breshears, 272 Ark. 244, \n613 S.W.2d 392 (1981).   \nThe claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \non appeal, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012). \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n\nSCOTT - H205844  12\n  \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \nI must respectfully dissent from the Majority’s determination that the \nclaimant has proved by a preponderance of the evidence that he suffered a \ncompensable hernia. \nAs highlighted above, Ark. Code Ann. § 11-9-523(a) requires that \nfive criteria be met for a hernia to be compensable: \n(1)  That the occurrence of the hernia \nimmediately followed as the result of sudden \neffort, severe strain, or the application of \nforce directly to the abdominal wall; \n(2)  That there was severe pain in the hernial \nregion; \n(3)  That the pain caused the employee to cease \nwork immediately; \n(4)  That notice of the occurrence was given to \nthe employer within forty-eight (48) hours \nthereafter; and \n(5)  That the physical distress following the \noccurrence of the hernia was such as to \nrequire the attendance of a licensed \nphysician within seventy-two (72) hours \nafter the occurrence. \n \n“The policy underlying these rather strict requirements is designed to \nmake the award of compensation for a hernia depending on the manner in \nwhich a hernia occurred and not on its mere existence.”  King v. Puryear \nWood Products, 254 Ark. 452, 494 S.W.3d 123 (1973).  This is meant to \n\nSCOTT - H205844  13\n  \n \n \nseparate congenital or pre-existing hernias from those resulting from \ntrauma or effort at work.  Id.  Simply put: \nThe people have seen fit to make, and the \nlegislature has seen fit to leave, a compensable \nhernia a rather dramatic occurrence under the \nstatute, with little or no room left for question or \ndoubt that it did occur with in the course of \nemployment as an immediate result of sudden \neffort, severe strain or force applied to the \nabdominal wall.  Harkleroad v. Cotter, 248 Ark. \n810, 454 S.W.3d 76 (1970). \n  \nAt issue here is the question of whether, in this instance, “the \noccurrence of the hernia immediately followed as the result of a sudden \neffort, severe strain, or the application of force directly to the abdominal \nwall.” The Majority relies on the language of Price v. Little Rock Packaging \nCo. to support its contention that “bending over and standing up” is \nsufficient to meet this standard.  42 Ark. App. 238, 856 S.W.2d 317 (1993). \nHowever, this ignores the additional testimony from Mr. Price that “when he \nwas lifting loads of paper, he felt an ‘awful pain’ in his side, in the groin \narea.”  Id.  Mr. Price was not simply stooping and standing, but rather he \nwas lifting loads of paper, which would satisfy the requirement of a “sudden \neffort, severe strain, or the application of force directly to the abdominal \nwall.”  Bending over and standing up by itself clearly does not meet this \ndefinition and there is no precedent in this State that supports a finding that \na claimant suffers a compensable injury when the extent of his sudden \n\nSCOTT - H205844  14\n  \n \n \neffort or severe strain is simply bending over and then standing.  And in \nfact, the court in Price did not hold that merely bending over and \nstraightening satisfied the criteria of Ark. Code Ann. § 11-9-523(a).  In that \ncase, Mr. Price was bending and straightening over an industrial knife and \nfelt an awful pain in his side, in the groin area, when lifting loads of paper. \nThere is no such proof in the case at hand, and Mr. Scott testified that at \nthe moment he felt a sudden pain, he was not lifting anything, but rather \nwas bending over and felt pain upon standing.\n \nBy the claimant’s own admission, he was not lifting anything at the \ntime of his alleged injury: \nQ:  At the time you felt pain on August 3rd you \nwere not lifting anything? \nA:  No, I was not. \nQ:  Okay. What you did was you had been \nbending over the boat, and when you raised, \nwhen you straightened up is when you felt \npain? \nA:  Yeah. (Hrng. Tr., P. 16). \n \nThis fact was later confirmed by Dr. Lance R. Lincoln on August 4, \n2022, who recorded that the claimant was “[l]eaning over the boat and \nwhen raised up got a sharp pain in abdomen.” (Resp. Ex. 1, Pp. 10-11).  On \nAugust 15, 2022, Dr. John A. Carlisle quotes the claimant as stating that “I \nwas doing fiberglass bent over the side of a boat.  I had done it several \ntimes that day when all of a sudden I felt a tear after standing up.”  (Resp. \nEx. 1, Pp. 15-17). \n\nSCOTT - H205844  15\n  \n \n \nNone of the claimant’s treating physicians opined the hernia was \ncaused by an acute, work-related accident.  It does not necessarily follow \nthat merely bending over and straightening up results in a hernia.  More \nimportantly, the claimant had a preexisting hernia for a year prior to \nbeginning work for the respondent employer and admitted such at the \nhearing: \nQ:  Now you have had pre-existing problems \nwith your hernias, is that right? \nA:  There was a bulge or whatever. \nQ:  Did you ever have surgery for the hernia? \nA:  No, sir. \nQ:  So you never really knew anything other than \nthis little bulge, is that correct? \nA:  Yes, sir.  (Hrng. Tr, P. 10). \n \n On the date of the alleged accident, the claimant treated with Dr. \nCaleb Pingel at Baxter Regional Medical Center, who reported that the \nclaimant “has had a hernia at his belly button that he feels he has gotten \nworse today.”  (Cl. Ex. 1, P. 2).  In his August 15, 2022 report, Dr. Carlisle \nnoted that the claimant “does not remember when he first noticed it but \npossibly a year or more.”  (Cl. Ex. 1, P. 7).  None of the claimant’s treating \nphysicians have opined that the alleged August 3, 2022 injury was an \naggravation of the admitted pre-existing hernia.  The claimant’s allegations \nfail on this point alone when taking into consideration the public policy laid \nout in Harkleroad and Puryear above as this is the exact type of hernia \nclaim our Rules are intended to prohibit. \n\nSCOTT - H205844  16\n  \n \n \n The claimant has wholly failed to prove by a preponderance of the \nevidence that his alleged work-related hernia was the result of a sudden \neffort, severe strain, or the application of force directly to the abdominal \nwall.  There is no precedent in this jurisdiction supporting any contention \nthat simply standing up, by itself, is sufficient to meet the claimant’s burden \nof proof, and for this reason the ALJ’s findings should be affirmed. \nFor the reasons stated above, I respectfully dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":24119,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H205844 ROBERT W. SCOTT, EMPLOYEE CLAIMANT CORRECT CRAFT HOLDINGS, LLC & BASSCAT, EMPLOYER RESPONDENT ZENITH INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED SEPTEMBER 13, 2023","outcome":"affirmed","outcomeKeywords":["affirmed:1","denied:1"],"injuryKeywords":["hernia","back","strain"],"fetchedAt":"2026-05-19T22:29:46.137Z"},{"id":"alj-H204111-2023-09-13","awccNumber":"H204111","decisionDate":"2023-09-13","decisionYear":2023,"opinionType":"alj","claimantName":"Peggy Clemons","employerName":"South County School District","title":"CLEMONS VS. SOUTH COUNTY SCHOOL DISTRICT AWCC# H204111 SEPTEMBER 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CLEMONS_PEGGY_H204111_20230913.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CLEMONS_PEGGY_H204111_20230913.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H204111 \n \nPEGGY CLEMONS, EMPLOYEE      CLAIMANT \n \nSOUTH COUNTY SCHOOL DISTRICT,  \nEMPLOYER              RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION         RESPONDENT \n \nOPINION AND ORDER FILED SEPTEMBER 13, 2023 \nThe Original Hearing before Administrative Law Judge James D. Kennedy in \nLittle Rock, Arkansas was held on June 27, 2023.  Two previous Orders have \nbeen entered in regard to this matter. \nClaimant is pro se and appeared on her own behalf at the time of the hearing. \nRespondents are represented by Carol Lockard Worley, Attorney-at-Law of \nLittle Rock, Arkansas. \nSTATEMENT OF THE CASE \n A hearing was held in the above-styled matter on June 27th, 2023, in Little Rock, \nArkansas,  on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas   Code   Annotated   §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant filed an AR-C on or about June 6, 2022, contending she \nhad been injured on February 9, 2022, while loading car riders into their cars at the end \nof  a  school  day,  slipping  on  ice,  and  injuring her “foot, ears,  loudly  ringing,  with  upper \nand lower back pain.”   The respondents filed an AR-2 dated June 7, 2022, which provided \nthat  the  claim  was  medical  only.    The  claimant’s  retained  counsel,  Evelyn  Brooks,  of \nFayetteville,  Arkansas,  withdrew  as  the  attorney-of-record  on  August  8,  2022,  after \nobtaining an Order from the Full Commission. \n On or about April 12, 2023, the respondents filed a Motion to Dismiss for Failure \nto Prosecute, contending that the claimant had not sought any type of bona fide hearing \nbefore the Arkansas Workers’ Compensation Commission over the last six (6) months and \n\nCLEMMONS – H204111 \n \n2 \n \nconsequently  the  matter  should  be  dismissed  for  failure  to  prosecute  pursuant  to Rule \n099.13    of   the Arkansas Workers’ Compensation and also pursuant to Ark.  Code  Ann. \n§11-9-702.  There was no record of the claimant filing a response to the Motion to Dismiss \nand the hearing was set for June 27, 2023. \n A  hearing  was  held  on  June  27,  2023,  as  spelled  out  in  a  previous  Order  and \nOpinion dated August 9, 2023.  The claimant appeared pro se at the time of the hearing \nand  the  Motion  to  Dismiss  was  held  in  abeyance  and  the  claimant  was  instructed  to \nappropriately  respond  to  the  Prehearing  Questionnaire  and  any  outstanding  discovery \nwithin twenty (20) days of this Order.  Further, the claimant was instructed to take the \nsteps  as  required  by  the  Arkansas  Workers’  Compensation  Act  that  she  deemed \nappropriate to pursue her claim, which might include obtaining counsel.  Failure to do so \ncould result in a request to renew the Motion to Dismiss and would leave no alternative \nbut to take the appropriate action as spelled out in the Arkansas Workers’ Compensation \nAct. \n In  a  previous  review  of  the  file,  it  appeared  that  the  claimant had  failed  to  file a \nresponse to the Prehearing Questionnaire,  but filed a Preliminary Notice on or about July \n11, 2023.  The claimant has also submitted a number of documents which were assumed \nto  be  evidence  of  her  claim.    These  documents  were  submitted  with  comments and \nhighlights in violation of Commission Rules on admissibility and the claimant was placed \non  notice  that  the  failure  to  submit these  documents  without  comments  and  highlights \nwill  render  these  documents  inadmissible  at  the  time  of  a  hearing.    Additionally,  the \nclaimant  had  withdrawn  her  authorization  for  the  respondents  to  obtain  her  medical \nrecords, as required by the rules of the Commission.  It also appeared that the claimant \n\nCLEMMONS – H204111 \n \n3 \n \nhad been unable or unwilling to obtain representation in this matter in order to assist her \nin pursuing her claim.    \n After a second review of the record, an Interim Order was entered on August 30, \n2023, and the claimant was ordered to submit a medical authorization not limited by time \nand  additionally  file  an  answered  Prehearing  Questionnaire  within  ten  (10)  days  of  the \ndate of this Order and Opinion.  The Order on August 30, 2023, provided that failure to \ntake these actions as required by the Arkansas Workers Compensation Commission could \nresult in this matter being dismissed without prejudice without any further action by the \nrespondents., and the claimant was further instructed that if she intended to pursue her \nclaim to a hearing, she is required to submit any documentary evidence that she intended \nto have admitted into evidence at the time of the hearing without comments or highlights.  \nFailure to take the above action would result in the documents being inadmissible. \n After   the   Interim   Order,   the   claimant   filed   a   Response   to   the   Prehearing \nQuestionnaire  with  the  attached  documents  again  containing  comments  and  highlights \nand filed a medical authorization that was limited by time to only three (3) months.   \nORDER \n Pursuant  to  the  above  statement  of  the  case,  and  the  previous  issues  that  have \narose  in  this  matter  along  with  the  previous  Order  and  Interim  Order,  it  is  found  that \nthere is no alternative but to grant the Motion to Dismiss without prejudice. \nIT IS SO ORDERED. \n                \n      ____________________________ \n                JAMES D. KENNEDY \n               ADMINISTRATIVE LAW JUDGE     \n   \n\nCLEMMONS – H204111 \n \n4","textLength":5615,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204111 PEGGY CLEMONS, EMPLOYEE CLAIMANT SOUTH COUNTY SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION RESPONDENT OPINION AND ORDER FILED SEPTEMBER 13, 2023 The Original Hearing before Administrative Law Judge James D. Kennedy in Litt...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:02:45.889Z"},{"id":"alj-G904652-2023-09-13","awccNumber":"G904652","decisionDate":"2023-09-13","decisionYear":2023,"opinionType":"alj","claimantName":"Nela Jikatake","employerName":"Cargill Meat Products,","title":"JIKATAKE VS. CARGILL MEAT PRODUCTS, AWCC# G904652 SEPTEMBER 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JIKATAKE_NELA_G904652_20230913.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JIKATAKE_NELA_G904652_20230913.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G904652 \n \nNELA JIKATAKE, Employee                                                                            CLAIMANT \n \nCARGILL MEAT PRODUCTS, Employer                                                  RESPONDENT                        \n \nSEDGWICK CLAIMS MANAGEMENT, Carrier/TPA                                 RESPONDENT                       \n \n \n \n OPINION FILED SEPTEMBER 13, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 23, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on June 21, 2023, and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The prior Opinion of November 30, 2022 is final. \n 3.      The claimant was earning sufficient wages to entitle her to compensation at \nthe weekly rates of $333.00 for total disability benefits and $250.00 for permanent partial \ndisability benefits. \n\nJikatake – G904652 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.     Temporary total disability benefits from June 21, 2022 through a date yet to  \nbe determined. \n2.      Attorney fee. \nThe claimant contends she is entitled to  temporary total disability from June 21, \n2022 to a date yet to be determined.  Claimant reserves all other issues.   \n The   respondents   contend   that   all   appropriate   benefits   have   been   paid.  \nRespondents  further  contend  that  light duty would have  been  available but for the  fact \nthat claimant voluntarily terminated her employment with respondent employer resulting \nin claimant not being entitled to additional temporary total disability benefits.  \nFrom a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.        The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \nconducted on June 21, 2023 and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n 2.        Claimant has failed to meet her burden of proving by a preponderance of \nthe evidence that she is entitled to temporary total disability benefits from June 21, 2022 \nthrough a date yet to be determined.  Claimant has proven by a preponderance of the \nevidence  that  she  is  entitled  to  temporary  total  disability  benefits  from  April  13, 2023, \n\nJikatake – G904652 \n \n3 \n \nthrough April 19, 2023.   \n 3.      Respondent  has  controverted  claimant’s  entitlement  to  all  unpaid  indemnity \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant is a 53-year-old woman who began working for respondent in October \n2015  deboning  chicken.    She  suffered  an  admittedly  compensable  injury  to  her  left \nshoulder when she tripped on a pallet on June 11, 2019.   \n Claimant  was  treated  for  her  left  shoulder  injury  by  Dr.  Heim  who  diagnosed \nclaimant’s condition as adhesive capsulitis and he performed surgery on claimant’s left \nshoulder on September 23, 2019.  On October 30, 2019, Dr. Heim stated that claimant \nhad reached maximum medical improvement and he assigned her an impairment rating \nin an amount equal to 4% to the body as a whole. \n Claimant filed for and received a change of physician to Dr. Arnold who diagnosed \nclaimant   with   a   probable   rotator   cuff   tear   and   adhesive   capsulitis.      Dr.   Arnold \nrecommended  a  second  surgical  procedure  and  in  response  Dr.  Heim  opined that \nclaimant  was  not  in  need  of  any  further  treatment  or  diagnostic  studies.    Accordingly, \nrespondent  denied  liability  for  additional  medical  treatment  and  claimant  filed  a  claim \nrequesting approval  for  the  surgery  that had been  recommended  by  Dr.  Arnold.    In  an \nOpinion filed May 26, 2021, this Administrative Law Judge found that claimant had failed \nto meet her burden of proving by a preponderance of the evidence that she was entitled \nto the additional medical treatment recommended by Dr. Arnold.  Claimant appealed that \ndecision to the Full Commission, which in an Opinion filed October 14, 2021 reversed and \n\nJikatake – G904652 \n \n4 \n \nfound that claimant had proven by a preponderance of the evidence that she was entitled \nto additional medical treatment, including the surgery as recommended by Dr. Arnold. \n Following the Full Commission Opinion of October 14, 2021, Dr. Arnold chose not \nto treat the claimant in the workers’ compensation system.  As a result, claimant sought \nadditional medical treatment from Dr. Dougherty, who also recommended an arthroscopic \nprocedure;  albeit,  a  different  procedure  than  the  one  recommended  by  Dr.  Arnold  and \npreviously  approved.    Because  a  different  procedure  was  being  recommended  by  Dr. \nDougherty, respondent denied liability for the new procedure and a second hearing was \nconducted  on  November  9,  2022.    In  an Opinion  filed  November  30,  2022,  this \nAdministrative  Law  Judge  found  that  claimant  had  met  her  burden  of  proving by  a \npreponderance that she was entitled to the surgery as recommended by Dr. Dougherty.  \nThis Opinion was not appealed, and the parties have stipulated that it is final. \n Following  the  November  30,  2022  Opinion,  claimant  underwent  surgery  by  Dr. \nDougherty  on  April  13,  2023.    She  has  filed  this  current  claim  contending  that  she  is \nentitled  to  temporary  total  disability  benefits  beginning  June  21,  2022  and  continuing \nthrough a date yet to be determined.   \n \nADJUDICATION \n Claimant  contends  that  she  is  entitled  to  temporary  total  disability  benefits \nbeginning June 21, 2022 and continuing through a date yet to be determined.  In order to \nbe entitled to temporary total disability benefits, claimant has the burden of proving by a \npreponderance of the evidence that she remained within her healing period and that she \nsuffered  a  total  incapacity  to  earn  wages.   Arkansas  State  Highway  &  Transportation \n\nJikatake – G904652 \n \n5 \n \nDept. v. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).  \n After reviewing the evidence impartially, without giving the benefit of the doubt to \neither  party,  I  find  that  claimant  has  failed  to  meet  her  burden  of  proving  by  a \npreponderance of the evidence that she is entitled to temporary total disability benefits \nfrom June 21, 2022 through a date yet to be determined.  However, I do find that claimant \nhas  met  her  burden  of  proving  that  she  is  entitled  to  temporary  total  disability  benefits \nfrom April 13, 2023 through April 19, 2023.   \n As  previously  noted,  the  claimant  worked  on  the  respondent’s  deboning  line \nwashing chicken at the time of her left shoulder injury on June 11, 2019.  Following that \ninjury, the claimant continued to work for the respondent for a short period of time until \nshe voluntarily terminated her employment due to complaints of pain.  Claimant testified \nat her deposition as follows: \n  Q Your termination date at Cargill is July 19\nth\n of \n  2019.  Do you know why you were terminated on \n  July 19\nth\n of 2019? \n \n  A They did not stop me.  I stopped myself because \n  I couldn’t tolerate the pain. \n \n  Q And my question to you is when you got terminated, \n  you just quit going to work because of the pain; correct? \n \n  A Yes. \n \n  Q And when you stopped going, did you call them \n  and tell them you were not going? \n \n  A I didn’t call them.  I told them that I wanted to \n  resign, so they gave me two weeks to resign.  I was \n  the one that approached them because I couldn’t \n  handle the pain.  I wanted to resign. \n \n \n\nJikatake – G904652 \n \n6 \n \n Thereafter, claimant came under the care of Dr. Heim and he performed surgery \non the claimant’s left shoulder before giving her a full release.  Claimant has testified that \nsome  time  in  2021  she  went  to  work  for  George’s  for  two  weeks,  but  again  quit  her \nemployment due to pain.  Claimant acknowledged at her deposition that she did not have \nany restrictions at the time she went to work for George’s. \n  Q When you went to work for the two weeks at \n  George’s, did you have any restrictions. \n \n  A None. \n \n \n As previously noted, claimant filed for and received a  change of physician to Dr. \nArnold who recommended a second surgical procedure on the claimant’s left shoulder.  \nEven though Dr. Arnold had recommended a surgical procedure, Dr. Arnold nevertheless \nindicated that claimant could continue working with restrictions.  This is reflected in Dr. \nArnold’s reports of January 21, 2020; a work note dated February 4, 2020; a work note \ndated March 3, 2020; and Dr. Arnold’s report dated April 7, 2020. \n As  also  previously  noted,  after  the  surgery  recommended  by  Dr.  Arnold  was \nawarded by the Full Commission, Dr. Arnold chose not to continue his treatment of the \nclaimant.  As a result, claimant came under the care of Dr. Dougherty and her initial visit \nwith Dr. Dougherty occurred on June 20, 2022.  Claimant is requesting temporary total \ndisability benefits beginning the day after that initial visit with Dr. Dougherty.  In his report \nof June 20, 2022, Dr. Dougherty discussed surgery on the claimant’s left shoulder and \nindicated that claimant’s MRI scan showed a split tear in her biceps tendon.  He indicated \nthat  her  examination  was  consistent  with  left  biceps  tendinitis  and  adhesive  capsulitis.  \nSignificantly, Dr. Dougherty did not indicate that claimant was incapable of working, either \n\nJikatake – G904652 \n \n7 \n \nwith or without restrictions.  Claimant acknowledged that Dr. Dougherty did not give her \nany restrictions during the November 9, 2022 hearing. \n  Q How about when you saw Dr. Dougherty, did he \n  give you any restrictions? \n \n  A No.  He didn’t tell me anything about that.  He just \n  said we should do a surgery to make it better. \n \n \n In  her  deposition  of  August  10,  2023,  claimant  confirmed  that  Dr.  Dougherty \nindicated that she could work with restrictions. \n  Q Up until you saw Dr. Dougherty, did any doctor \n  have you on any kind of restrictions? \n \n  A What kind of restrictions? \n \n  Q Don’t work or do certain things at work.   \n \n  A No, no one said that.  Only he said that I could \n  work. \n \n  Q Did Dr. Dougherty tell you you should work? \n \n  A Yes, he said that I could work, but I shouldn’t \n  carry anything more than five pounds and that I should \n  use my right hand more than my injured hand. \n \n  Q After he told you that, did you look for any work? \n \n  A No, I didn’t.  (Emphasis added.) \n \n \n In order to be entitled to temporary total disability benefits, claimant must not only \nprove  that  she  remained  within  her  healing  period  but  also  that  she  suffered  a  total \nincapacity to earn wages.  Here, claimant may have remained within her healing period \nbut I do not find that claimant has proven by a preponderance of the evidence that she \nsuffered a total incapacity to earn wages beginning June 21, 2022, the day after her initial \n\nJikatake – G904652 \n \n8 \n \nvisit  with  Dr.  Dougherty,  and  continuing  through  a  date  yet  to  be  determined.    Dr. \nDougherty in his report of June 20, 2022 did not mention any restrictions placed upon the \nclaimant’s ability to work.  Furthermore, according to claimant’s deposition testimony, Dr. \nDougherty specifically told claimant that she could work with restrictions of no carrying \nmore than five pounds and using her right hand more than her injured hand.  Claimant \nacknowledged  that  despite  Dr.  Dougherty’s  indication  that  she  could  work,  she  did not \nlook for any employment. \n Based  upon  this  evidence,  I  find  that  claimant  has  failed  to  meet  her  burden  of \nproving by a preponderance of the evidence that she suffered a total incapacity to earn \nwages  beginning  June  21,  2022  and  continuing  through  a  date  yet  to be  determined.  \nTherefore, she is not entitled to temporary total disability benefits for that period of time. \n However,  I  do  find  that  claimant  is  entitled  to  temporary  total  disability  benefits \nbeginning  April  13,  2023  and  continuing  through  April  19,  2023.    I find  that  claimant \nsuffered a total incapacity to earn wages beginning on the date she underwent surgery \nby Dr.  Dougherty which was April 13, 2023.  In a return to work note dated April 17, 2023, \nDr.  Dougherty  indicated  that  claimant  could  return  to  work  as  of  April  20, 2023,  with  a \nwork  limitation  of  a  ten-pound  lifting  restriction.  Dr.  Dougherty  again  indicated  that \nclaimant  could  return  to  work  with  restrictions  in  reports  dated April  26, 2023;  May 24, \n2023; and July 12, 2023.  Based upon this evidence, I find that claimant remained within \nher healing period and that she suffered a total incapacity to earn wages beginning April \n13, 2023, the date of her surgery, and continuing until April 19, 2023.  \n Accordingly,  I  find  that  claimant  is  entitled  to  temporary  total  disability  benefits \nbeginning April 13, 2023 and continuing through April 19, 2023. \n\nJikatake – G904652 \n \n9 \n \nAWARD \n Claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits beginning June 21, 2022 and continuing through a \ndate yet to be determined.  Claimant has proven by a preponderance of the evidence that \nshe  is  entitled  to  temporary  total  disability  benefits  beginning  April  13,  2023  and \ncontinuing through April 19, 2023.  Respondent has controverted claimant’s entitlement \nto all unpaid indemnity benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby the claimant.    \nThe  respondent  is  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $414.50. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n      ________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":15255,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G904652 NELA JIKATAKE, Employee CLAIMANT CARGILL MEAT PRODUCTS, Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT, Carrier/TPA RESPONDENT OPINION FILED SEPTEMBER 13, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington Coun...","outcome":"granted","outcomeKeywords":["granted:4","denied:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:02:48.031Z"},{"id":"alj-H206201-2023-09-13","awccNumber":"H206201","decisionDate":"2023-09-13","decisionYear":2023,"opinionType":"alj","claimantName":"Charles Mackey","employerName":"Dragon Woodland Sawmill Corp","title":"MACKEY VS. DRAGON WOODLAND SAWMILL CORP. AWCC# H206201 SEPTEMBER 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MACKEY_CHARLES_H206201_20230913.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MACKEY_CHARLES_H206201_20230913.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206201 \n \n \nCHARLES E. MACKEY, EMPLOYEE CLAIMANT \n \nDRAGON WOODLAND SAWMILL CORP., \n EMPLOYER RESPONDENT \n \nTRAVELERS PROP. & CASUALTY CORP., \n CARRIER RESPONDENT \n \n \nOPINION FILED SEPTEMBER 13, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on  July 28, 2023, in Marion, \nCrittenden County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr.  Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On July 28, 2023, the above-captioned claim was heard in Marion, Arkansas.  A \nprehearing conference took place on May 22, 2023.  The Prehearing Order entered that \nsame day  pursuant  to  the  conference  was  admitted  without  objection  as  Commission \nExhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations,  issues,  and \nrespective contentions, as amended, were properly set forth in the order. \nStipulations \n The parties discussed the stipulations set forth in Commission Exhibit 1.  After an \namendment at the hearing, they read as follows: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nMACKEY – H 206201 \n \n2 \n2. The  employee/employer/carrier/third-party  administrator  relationship  exis- \nted among the parties on November 30, 2021, when Claimant sustained a \ncompensable injury to his left knee by specific incident. \n3. Respondents accepted this claim as a medical-only one and paid benefits \npursuant thereto. \n4. Claimant’s average weekly wage of $411.90 entitles him to compensation \nrates of $275.00/$206.00. \nIssue \n At the hearing, the following was litigated: \n1. Whether Claimant is entitled to temporary total disability benefits. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are as follows: \n Claimant: \n1. Claimant  contends that he is  entitled  to  temporary  total  disability  benefits \nin connection with his stipulated compensable left knee injury. \nRespondents: \n1. Respondents  contend  that  they  accepted  and  have  paid  reasonable, \nnecessary  and  related  medical  treatment  in  connection  with  Claimant’s \ncompensable   injury      His   Form   AR-C   and   prehearing   questionnaire \nresponse note two different dates of injury to which Respondents have no \nknowledge or notice as none was reported on either date.  IF Claimant is \n\nMACKEY – H 206201 \n \n3 \ncontending  any  injury  on  the  January  10,  2021,  date,  the  statute  of \nlimitations  has  run.    IF  Claimant  is  contending  an  injury  on  January  5, \n2022,  this  is  the  first  notice  received  by  Respondents,  and  they  are  not \nresponsible for any related medical treatment. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  Claimant  and  to  observe  his  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann. §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’ Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant   has   not   proven   by   a   preponderance   of   the   evidence   his \nentitlement to temporary total disability benefits for any period. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n Along  with  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case  were  Claimant’s  Exhibit  1,  a  compilation  of  his  medical  records, \nconsisting  of  seven  numbered  pages;  Respondents’  Exhibit  1,  another  compilation  of \nClaimant’s  medical  records, consisting  of  one  index  page  and 18  numbered  pages \n\nMACKEY – H 206201 \n \n4 \nthereafter; Respondents’ Exhibit 2, Claimant’s Form AR-C and prehearing questionnaire \nresponse, consisting of one index page and four numbered pages thereafter; and Joint \nExhibit 1, copies of the Form AR-W for this claim, consisting of two pages. \nAdjudication \n As  the  parties  stipulated supra,  Claimant  was  an  employee  of  Respondent \nDragon  Woodland  Sawmill  Corporation  (“Dragon”)  on November 30,  2021,  when  he \nsuffered a compensable injury to his left knee in a specific incident.  They accepted this \nas  a  medical-only  claim  and  furnished  benefits  in  connection  with  it.    In  this  action, \nClaimant has asserted that Respondents should also pay him temporary total disability \nbenefits.  They dispute this. \n Claimant’s stipulated  compensable  injury  is  a  scheduled  one.   See Ark.  Code \nAnn.  §  11-9-521(a)(4)  (Repl.  2012).    An  employee  who  has  sustained a  compensable \nscheduled injury is entitled to temporary total disability compensation “during the healing \nperiod  or  until  the  employee  returns  to  work,  whichever  occurs  first  .  .  .  .”  Id.  §  11-9-\n521(a).   See  Wheeler  Const.  Co.  v.  Armstrong,  73  Ark.  App.  146,  41  S.W.3d  822 \n(2001).    The  healing  period  ends  when  the  underlying  condition  causing  the  disability \nhas  become  stable  and  nothing  further  in  the  way  of  treatment  will  improve  that \ncondition.  Mad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982). \n Claimant  must  prove  his  entitlement  to  temporary  total  disability  benefits  by  a \npreponderance  of  the  evidence.    Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012).    This \nstandard  means  the  evidence  having  greater  weight  or  convincing  force.   Barre  v. \n\nMACKEY – H 206201 \n \n5 \nHoffman,  2009  Ark.  373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212 \nArk. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Claimant, who is 45 years old and attended two years of college, testified that his \njob  at  Dragon,  a  timber-cutting  business,  was  to  use  a  chainsaw  to  remove  all  of  the \nlimbs from trees that had been felled.  Asked how he injured his knee on November 30, \n2021, he responded: \nDuring   November   we   was—I   can’t   remember   the   time,   but   I   was \napproaching a tree.  I was cutting up a big tree.  It was a big tree, a limb \noff  the  tree.    And  I  was  cutting,  although  the  saw  was  dull,  but  I  was \nholding the tree cutting it, cutting it, cutting, it, and while I was going down, \nit kicked back.  So I went underneath the tree, started cutting at the bottom \nof the tree, and then I went back on top to finish . . . [s]o during the time I \nwent  back  on  top  of  the  tree,  when  I’d  keep—it  was—I  was  cutting  the \ntree, the limb, and it kicked back, so I held it—I held it down like this right \nhere so I could put force on it to keep at it.  And during the process when I \nwas cutting it, when it kicked back, I pushed it back down to hold it to keep \nit from coming back, and I went down on my  left knee.  I cut my left knee \ntrying to hold it, the chainsaw, down in the wood so I could finish cutting it. \n \n\nMACKEY – H 206201 \n \n6 \n According to Claimant, the contact with the chainsaw left more than a superficial \nwound: \n“Whew, it was—ooee.  I ain’t never seen a bone before inside of a human \nbody until I seen my own, but I cut it right across at an angle, and I cut the \ntop of it and the gristle.  It was cut pretty deep . . . you could see the bone \nit it . . . [i]t was like a filet. \n \n Following the accident, Claimant was transported to Forrest City Medical Center, \nwhere  he  was  seen  in  the  emergency  room.    The  records  of  that  visit  show  that  he \npresented with multiple left knee lacerations that measured from 2.6 to 7.5 cm long and \nwere  no  longer  bleeding.    Following  x-rays,  he  was  diagnosed  as  having,  inter alia,  a \nfractured  left patella.   The cuts  were  closed with  eight “simple  sutures.”  Claimant  was \nonly off work for one day—December 1, 2021—due to his knee.  On December 2, 2021, \nhe went back to work at Dragon. \n The  records  of  Claimant’s  emergency  room  visit—the  sole  treatment  he  has \nundergone in connection with his knee injury—do not reflect that he was taken off work.  \nThe following exchange occurred: \nQ. So  far  as  you  know,  there’s  not  a  doctor  that’s  taken  you  out  of \nwork, correct? \n \nA. Correct. \n \nHowever,  he  also  testified  that  emergency  room  personnel  advised  that  he  take  some \ntime off work.  He did this—staying away from his job a single day.  His records also do \nnot  show  that  he  was  assigned  light  duty  by  a  physician.    But  Claimant disagreed, \nstating that that this occurred and, based on this, his duties at Dragon were modified for \nroughly  three  weeks.    They  consisted  of  his  sitting  on  the  tailgate  of  a  pickup  truck, \n\nMACKEY – H 206201 \n \n7 \nsharpening and servicing the chainsaws.  Claimant explained why he could not resume \nhis regular limb-cutting tasks at that point: \nI wasn’t eligible to do any walking . . . [w]asn’t able to put no pressure.  A \nchainsaw weighs 20 pounds.\n1\n  I couldn’t put no pressure on my leg, and I \ncouldn’t do no walking.  I was going through mud and sticks, because we \nwas in the woods. \n \n According to Claimant, after this period of light duty, he went home to Mississippi \nfor  Christmas.    In  early  January  2022,  when  the  timber-cutting  project  in  Arkansas \nresumed, he was returned to his former job because the timber crew was short-handed.  \nHis  supervisor,  Joe,  made  this  determination  and  informed  him.    Claimant’s  testimony \non this matter was inconsistent.  He first said that he was only able to trim “two to three \ntrees.”  Later, he stated that he successfully resumed his regular duties for two or three \ndays  but  was  unable  to  continue  at  some  point  on  the  last  day.    Asked  what  was \nhappening while he was doing this, he replied:  “My knee was like—it was stiffening up.  \nIt  was  getting  sore.    It  was  stiffening  up  and  I  just  couldn’t  bear  the  pain.”  Claimant \ndescribed having trouble  walking, steadying himself in the mud, and applying  pressure \nto cut the limbs.  He stated that once he began cutting a second tree, he had to cease \nworking because his leg was “tingling . . . and it was just too stiff to bear it.”  Claimant \nreturned to the work truck, and his fellow crew members brought the trees to him there \nto strip.\n2\n  While their work day normally ended at 5:00 p.m., Claimant had to stop using \nthe  chainsaw  that  day  at  3:00  p.m.  because  he  felt  he  could  not  continue.    From  that \n \n \n1\nShortly thereafter, Claimant related that he was “carrying a 15-pound chainsaw,” \nand offered no explanation for the weight discrepancy. \n \n2\nClaimant  did  not  make  clear  on  which  day  this  impromptu  modification  took \nplace. \n\nMACKEY – H 206201 \n \n8 \npoint until quitting time, he simply gathered trash for burial.  Joe approved of this.   The \ntestimony of Claimant was that he did not request to go back to the chainsaw-servicing \njob. \n Later  that  evening,  per  Claimant,  he  informed  Joe  that  he  would  not  be  able  to \nfinish the job.  Joe responded that he understood, and that Claimant had to do whatever \nhe  had  to  do.    The  next  day,  Joe  drove  him  from  the  Arkansas  jobsite  back  to \nMississippi. \n The following exchange took place on direct examination: \nQ. Were you—did you ever go back to work for Dragon? \n \nA. No, sir. \n \nQ. Okay.  Did anybody from Dragon ever tell you don’t come back, or \nfire you or anything? \n \nA. No, sir. \n \nQ. Okay.    As  of  sitting  here  today,  do  you  know  if  you’re  still  an \nemployee of Dragon? \n \nA. No, sir. \n \nQ. You don’t know whether or not you are? \n \nA. I know I’m not. \n \nQ. Why do you know that? \n \nA. (No audible response) \n \nQ. Did anybody ever tell you you were fired? \n \nA. No, sir. \n \nQ. Did you tell Joe you were quitting? \n\nMACKEY – H 206201 \n \n9 \n \nA. I did told him I couldn’t handle it. \n \nQ. I mean, did you resign your job? \n \nA. Yes,  sir.    Yes,  sir.    Well,  to  my  knowledge,  I  heard  they  wasn’t  in \nbusiness no more or something. \n \nQ. Okay.  But I was trying to find out on this— \n \nA. Okay. \n \nQ. —you basically told your supervisor that you were quitting your job? \n \nA. Yes, sir. \n \nQ. Okay.  And he took you home to Mississippi? \n \nA. Yes, sir. \n \nThe subject arose again on cross-examination: \nQ. Now, you were not fired from Dragon, were you? \n \nA. No, sir. \n \nQ. All right.  You decided you just couldn't do the job and so you took \nyourself out of work? \n \nA. Yes, sir. \n \nQ. And you told Joe, “I’m not coming back.” \n \nA. Yes, sir. \n \nQ. Now,  you’ve  not  been  back  to  Dragon  to  work  at  any  point  after \nthat? \n \nA. No, sir. \n \n\nMACKEY – H 206201 \n \n10 \n After his resignation, Claimant did not go back to work anywhere  for about three \nand  one-half  months.   He  asked  that he be awarded  temporary  total  disability benefits \nfor this period  In describing his condition during this time, he related: \n[T]here  where  [sic]  the  months  I  was  out,  I  just  couldn’t  do  it.    I  couldn’t \nperform, I couldn’t move it.  I couldn’t, you know, my leg would stiffen up . . \n. it’s like stiff, like I told—like it was hard to bend it.  It was hard to bend my \nknees, and it was feeling like, when I put weight on it, it didn’t feel like—it \ndidn’t feel like I had a knee.  Didn’t feel like I had a leg. \n \n Asked about his stitches, Claimant testified that approximately three weeks after \nhe  received  them, “[t]hey  rotted  out.”  He  later\n3\n  stated  that  this  occurred  in  January \n2022.    The  only  treatment  he  ever  received  on  his  left  knee  was  the  November  30, \n2021,  emergency  room  visit.    While  he  later  attempted  to  see  a  doctor, he  was \nunsuccessful. \n The  foregoing  evidence  shows  that  prior  to  the  day  in  January  2022  that \nClaimant quit his job at Dragon, he had missed  only one day of work due to his injury:  \nDecember  1,  2021.  But  a  claimant  must  demonstrate  that  his  disability  lasted  more \nthan  seven  days.    Ark.  Code  Ann.  §  11-9-501(a)(1)  (Repl.  2012).    Thus,  he  cannot \nestablish his entitlement to temporary total disability benefits unless he can extend this \nperiod by six more days. \n But Claimant has been unable to do this.  Again, his unequivocal testimony was \nthat  the  last  day  he  was  on  the  timber-cutting  job  in  Arkansas,  he  resigned.   The \nArkansas  Court of  Appeals  in Lybyer  v.  Springdale  Sch.  Dist., 2019  Ark.  App.  77, 568 \n \n \n3\nEven  later,  Claimant  acknowledged  that  he  does  not  know  when  the  stitches \ndissolved. \n\nMACKEY – H 206201 \n \n11 \nS.W.3d  805,  held  that “a  voluntary  resignation  is  a  refusal  to  return  to  work  [per  Ark. \nCode Ann. § 11-9-526 (Repl. 2012)]\n4\n, which does not entitle [a claimant] to TTD benefits \nunder the Act.”  Because of this, Claimant has not proven his entitlement to temporary \ntotal disability benefits. \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth above, \nthis claim for additional benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge \n \n \n4\nThis provision reads: \n \nIf any injured employee refuses employment suitable to his or her capacity \noffered to or procured for him or her, he or she shall not be entitled to any \ncompensation during the continuance of the refusal, unless in the opinion \nof the Workers’ Compensation Commission, the refusal is justifiable.","textLength":16540,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H206201 CHARLES E. MACKEY, EMPLOYEE CLAIMANT DRAGON WOODLAND SAWMILL CORP., EMPLOYER RESPONDENT TRAVELERS PROP. & CASUALTY CORP., CARRIER RESPONDENT OPINION FILED SEPTEMBER 13, 2023 Hearing before Administrative Law Judge O. Milton Fine II on July 28, 2023, i...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:2","denied:1"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T23:02:50.164Z"},{"id":"alj-H207786-2023-09-12","awccNumber":"H207786","decisionDate":"2023-09-12","decisionYear":2023,"opinionType":"alj","claimantName":"Clarence Elliott","employerName":"City Of Little Rock (self-Insured)","title":"ELLIOTT VS. CITY OF LITTLE ROCK (SELF-INSURED) AWCC# H207786 SEPTEMBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ELLIOTT_CLARENCE_H207786_20230912.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ELLIOTT_CLARENCE_H207786_20230912.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.: H207786 \n \nCLARENCE ELLIOTT, EMPLOYEE                                                                   CLAIMANT \n \nCITY OF LITTLE ROCK (SELF-INSURED),                \nRESPONDENT                                                                                                         EMPLOYER   \n \nRISK MANAGEMENT RESOURCES/ THIRD PARTY  \nADMINISTRATOR/TPA                                                                                    RESPONDENT \n \nOPINION FILED SEPTEMBER 12, 2023 \n  \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Little Rock, \nPulaski County, Arkansas. \n \nClaimant  represented  by  the  Honorable B.  Norman  Williamson,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nRespondents  represented  by  the  Honorable  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nStatement of the Case \nOn  June  14,  2023,  the  above-captioned  claim  came  on  for  a  hearing  in  Little  Rock, \nArkansas.  A pre-hearing telephone conference was conducted on March 15, 2023, from which a \npre-hearing order was filed that same day.  A copy of the said order and the parties’ responsive \nfilings have been marked as Commission’s Exhibit No. 1 and made a part of the record without \nobjection. \nStipulations \nDuring the pre-hearing telephone conference, and/or during the hearing the parties agreed \nto the following stipulations: \n 1.  The Arkansas Workers’ Compensation Commission has jurisdiction of the within claim. \n \n2. That the employee-employer-carrier relationship existed at all relevant times including \non or about September 7, 2022. \n\nElliott – H207786 \n2 \n \n3. The Claimant’s average weekly wage was $1,146.48,  which  entitles  the  Claimant  to \nweekly compensation rates of $764.00 and $573.00. \n4. All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nAct. \n5. The Respondents have controverted this claim in its entirety. \nBy agreement of the parties, the issues litigated at the hearing were as follows: \n1.   Whether the Claimant sustained a compensable hernia injury.\n1\n \n2. Whether the Claimant is entitled to reasonable and necessary medical treatment.  \n3.    Whether the Claimant is entitled to temporary total disability benefits for two and    \n       a half months.  \nContentions \n \nThe respective contentions of the parties are as follows: \nClaimant: The Claimant contends that he sustained a hernia injury while working for the \nrespondent-employer on September 7, 2022.   He also contends that he is entitled to reasonable \nand necessary medical treatment for his hernia repair surgy and two and a half months of temporary \ntotal disability compensation.       \nRespondents:  \nRespondents contend that Claimant did not suffer a compensable injury hernia injury under \nthe Arkansas Workers' Compensation Act.  There was no notice of an alleged injury until October \n5, 2022. \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \n \n1\n The medical records show that the Claimant suffered bilateral inguinal hernias.  \n\nElliott – H207786 \n3 \n \nhear  the  testimony  of  the  witnesses  and  observe  their  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n \n           claim. \n \n      2.   I hereby accept the above-mentioned proposed stipulations as fact. \n3.  The Claimant has failed to prove by a preponderance of the evidence that he sustained work-  \n     related hernias on September 7, 2022, while performing his employment duties for the City \n           of Little Rock Fleet Services.  \n     4.  The remaining issues have been rendered moot by the above finding.  Therefore, said issues   \n          are not addressed in this Opinion.   \nSummary of Evidence \nThe following witnesses testified: Mr. Clarence Elliott (the Claimant), Mr. Tony Lee Allen, \nJr. (Claimant’s coworker), and Mr. Douglas Meiggs (the Claimant’s supervisor).      \n           The  record  consists  of  the  June  14,  2023  hearing  transcript,  comprising  of  the  following \nexhibits:  Specifically, Commission’s Exhibit 1 includes the Commission’s Prehearing Order of \nMarch 15, 2023 and the parties’ responsive filings; Claimant’s Exhibit 1 is a Medical Exhibit and \nencompasses  thirty-six  (36)  numbered pages;  Claimant’s  Exhibit 2  is  Non-Medical  Exhibit \nconsisting of one page;  and Respondents’ Exhibit 1 is a Medical Exhibit,  consisting of  ten (10) \nnumbered pages; and Respondents’ Exhibit 2 is a Non-Medical Exhibit encompassing eight (8) \ntotaled numbered pages.  \n \n \n \n \n\nElliott – H207786 \n4 \n \n                                                                     Testimony \nMr. Clarence Elliott  \n \n The Claimant, age 56, testified that he works as an occupation technician II, for the City  \nof Little Rock Fleet Services.  He testified that he was at work, and he and Mr. Allen (a coworker) \nwere  doing  a  brake  job  on  a  truck  when  he  sustained  a  hernia  injury.    The  Claimant  gave  the \nfollowing account of the incident: \n A:  ... I was on one side - - I was doing one side and he was doing the other side.  \nAnd now, as we were doing the brake job, I got to – we got the tire off.  As I went to take \nthe drum off, I felt something like a pull or something.  So when I pulled, I dropped it – I \nended up -- I dropped the drum because it – because of the pain.  And once I drop the drum, \nI can’t -- Mr. Allen came over, like “Hey, what’s going on?   \n        \n            *** \n A: Okay.  After I dropped the drum, I set back – I sat down for a while because -- \nbecause of the pain.  My supervisor was happening to be coming through at the time, and \nI told -- him, I said, “Man, I think I hurt -- I think I pulled something.”  He made a joking \nremark, which we always doin, “Oh it’s just old age.” \n \n The Claimant’s supervisor at that time was Douglas Meiggs.  According to the Claimant, \nhe told his supervisor he strained or pulled something, but it should be  all right.  The Claimant \ncontinued working that day.  Per the Claimant, he completed his shift that day but could hardly lift \nanything.   The Claimant testified that the drum weighed roughly 70-80 pounds.  He denied that at \nthe time of his alleged injury, management provided equipment assistance to lift heavy objects. \nHowever, now they provide equipment to help with lifting heavy objects.   \nOn further direct examination, the Claimant confirmed that at the point of being engaged \nin pulling on the drum, the pain hit him instantly and he dropped it.  The Claimant testified he did \nnot start the steps to file a claim because he thought it was just a strain.  He further testified that \nthe pain became unbearable.  So, the left work on October 4, and went to the emergency room.  \n\nElliott – H207786 \n5 \n \nThe  Claimant  sought  medical  treatment  from  the  Emergency  Department  of  the  VA  Hospital.  \nThere, they examined the Claimant and did x-rays and a CT scan.   \nThe Claimant denied having ever sustained a prior hernia from lifting heavy objects.  He \nalso denied ever having a hernia.  According to the Claimant, after lifting the wheel he felt a sharp, \npulling pain on his testicles.  He further described the pain, among other things, as being the most \nexcruciating, and nothing like what he had dealt with before.  The Claimant confirmed that after \nthe  incident,  the  pain  caused  him  to  immediately  stop  working.    According  to  the  Claimant,  he \ndropped everything and sat down.   Per the Claimant, he had pain throughout the day, but he kept \nmoving although it limited his work, particularly his ability to lift.  The Claimant testified that he \ntried to make it day by day, but after the third week, the pain was just too much to bear.  Between \nthe time of the incident and filing his workers’ compensation claim, the Claimant went home every \nevening after work and soaked in Epsom Salts.  He denied having engaged in any sort of activities \noutside of work that required heavy lifting or strenuous effort prior to his indent at work.   \nRegarding the medical treatment he has sought for his hernia condition since the filing of \nhis workers’ compensation claim, the Claimant testified he sought medical treatment from the VA \nin Little Rock.  His first medical visit was around October 4 or 5.  Next, the Claimant had a follow-\nup visit, and then they scheduled the surgery for two weeks later because he did not have a bulge.  \nHowever, according to the Claimant, they ended up bringing him in a week later because the hernia \nbegan to open.   \nThe Claimant confirmed that he sought treatment at Concentra because the night after he \nhad gone to the ER, he was telling his supervisor, Doug Meiggs, about it and he had him fill out \nthe paperwork for a workers’ compensation claim.  He confirmed that company policy mandated \nthat  he  go  to  Concentra  because  he  had  allegedly  sustained  a  workplace  injury.    The  Claimant \n\nElliott – H207786 \n6 \n \nagreed  that  he  is  familiar  with  the  medical  records.    His  attention  was  directed  to  page  33  of a \nmedical  record  from  October  12,  2022.    Per this  medical  record  of  October  12,  the  Claimant \nprovided the doctor with a statement under the section of History of Present Illness, that reflected \nhe started having symptoms on September 7, 2022.   The Claimant admitted that he only told the \ndoctor about his surgery being scheduled but did not tell him about his workplace incident.      \nHowever,  at  page  26  of  the  medical  records,  the  Claimant  denied  telling  the  doctor  his \nsymptoms had been going on for three to four months.  Instead, the Claimant maintained that he \nreported that his symptoms and pain had been going on for only three or four weeks.   \nThe  Claimant  testified  that  his  injury  affected  his  ability  to  work.    According  to  the \nClaimant, he was limited in his ability to lift tools, such as the impact guns, which weigh around \n30  to  40  pounds.    The  Claimant  confirmed  that  he  experienced  these  problems  until  his  hernia \nsurgery was performed.  \n He admitted that he has returned to work and is able to perform majority of his job duties.  \nThe Claimant testified that now he uses the safety equipment to lift heavy objects.  Following his \nincident with the drum, and prior to his surgery, the Claimant received help from his co-workers.  \nAccording to the Claimant, Lucas Bruner helped him a lot with lifting heavy objects.  He testified \nthat Tony Allen, or just anyone also helped him to lift heavy tools. \n The  Claimant  stated  that  the  main  detail  to  his  claim  is  that  he  has  worked  for “these \npeople,” and never lied to them.  He has also been a minister over the last twenty (20) years.    \n On cross-examination, the Claimant confirmed his deposition was taken on March 7, 2023. \nHe began working for the City of Little Rock in May 2012.  The Claimant admitted he has had a \nfew injuries while working for the city.  He confirmed that he stated in his deposition that he had \nan  injury  when  something  fell  into  his  eye.    The  Claimant  agreed  that  his  deposition  testimony \n\nElliott – H207786 \n7 \n \nshows that he has previously gotten something in his eye two or three times.  He confirmed that \neach time, management sent him to Concentra for medical treatment. \n Regarding  his   employment  with  the   city,  the  Claimant  started  in   the  automotive \ndepartment.    After  two  or  three  years,  he  moved  to  the  heavy  trucks  department,  where  he  has \nremained since then.   His job duties on the heavy trucks side entail lead tech, which include but \nis not limited to the training of the newly hired technicians and diagnostic-type work on the brakes.  \nThe Claimant also performs work as a second roll call guy, which means he goes out to repair the \ntrucks on the side of the road.  He confirmed that he testified during his deposition that he saw his \nsupervisor, Doug Meiggs, in the shop on a regular basis.  His office is near the shop.  He went on \nto explain that he acts as a lead person and others treat him that way, but he is not paid for these \nduties. \n The  Claimant  testified  during  his  deposition  that  his  injury  occurred  about  three  weeks \nbefore  Thanksgiving  2022.    However,  the  Claimant  also  testified  during  his  deposition  that  he \nreported his injury on October 13, but it happened on September 8 or so.  The Claimant further \nadmitted that he had a calendar with him at his deposition.  Per the Claimant, he testified that he \nreported his injury to Doug that day.  He also testified that he worked at least three to four weeks \nbefore he went to the doctor.  The Claimant confirmed that Tony Allen is a technician II as well \nas Lucas Bruner, but at that time he was a technician I. \n He  confirmed  that  he  was  doing  a  brake  job  on  a  truck  when  his  injury  occurred.    The \nClaimant explained that he had taken  off the tire, slack adjuster, and lugs because it was a dual \ntire.  After that, he had to pull off the drum and it was during this process that the Claimant was \ninjured.  He confirmed he was on one side and  Mr. Allen was on the other side.  The Claimant \ntestified during his deposition that the drum weighs 100 to 110 pounds, as opposed to his earlier \n\nElliott – H207786 \n8 \n \ntestimony.  He confirmed that when replacing the brakes, he follows the same procedure in reverse \nto put everything back on.  The Claimant testified that the brake shoes weigh about 20-30 pounds.  \nHe confirmed that he had to lift two drums back on the truck to complete the job.   \n According to the Claimant, it takes an hour for them to complete a brake job.  He admitted \nthat it  took  them  another  hour  to  complete  the  brake  job  after  his  injury.    The  Claimant  also \nadmitted  that  his  injury  occurred  somewhere  around  lunchtime.    However,  per  his  deposition \ntestimony, he testified his injury occurred that morning.   \n During  his  deposition,  the  Claimant  testified  he  probably  needed  treatment  the  day  the \nincident occurred but just figured it was a little strain and would just pass.  He admitted that he did \nnot say anything to Doug (Meiggs) about needing treatment that day.  The Claimant explained the \nprocedure for reporting an injury.  He admitted he has known the procedure for a long time.  Per \nthe Claimant, he has this knowledge from being the union president for the last eight years.  He \nadmitted that he testified during his  deposition that Doug did not know he had gone to the VA.  \nThe Claimant also went to the ER on his own and no one knew he was going.  \n Under  further  questioning,  the  Claimant  admitted  that  he  has  no  symptoms  whatsoever \nsince the surgery.  He returned to work for the city on January 3, 2023.  The Claimant confirmed \nhe received the same pay while he was off due to his surgery.  He admitted that his treatment at \nthe VA did not cost him anything.  His only out-of-pocket expenses have been for his medications. \n The Claimant confirmed that he did not receive any treatment until October 4, which was \nthe ER visit.  During this visit, the Claimant reported that he noticed swelling in his groin area one \nweek ago, along with some pain.  The Claimant also confirmed that he had worsening pain for a \nlong time and needed to have it addressed.  He confirmed that initially it was painful with only \ncertain maneuvers, but it became painful all the time.   \n\nElliott – H207786 \n9 \n \nDefense  counsel  asked  the  Claimant  about  his  relationship  with  his  coworkers.    Per  the \nClaimant, he is a friendly person and is friends with Doug Meiggs, Tony Allen, and Lucas Bruner. \nMr. Tony Allen, Jr. \n \n Tony Lee Allen, Jr., testified on behalf of the Claimant.  Mr. Allen admitted that he is one \nof the Claimant’s coworkers.    He  confirmed  that  he  worked  with  the  Claimant  on  or  around \nSeptember 7.   Mr. Allen testified that the Claimant strained himself taking of the rotors from a \ntruck.  He explained that the rotors are hard to remove because they sometimes have salt around \nthem from the winter months and they get stuck.       \n Mr. Allen testified that a drum weighs around 80 pounds.  He confirmed that he observed \nthe  Claimant  after  the  incident,  and  he  appeared  to  be  fatigue.    According  to  Mr.  Allen,  the \nClaimant told him he might have pulled something.  He gave inconsistent and confusing answers \nconcerning  the  Claimant  having  reported  the  incident.    While  testifying  at  one  point  in  his \ntestimony,  Mr.  Allen said  the  Claimant  reported  the  incident  that  day.    At  another  point  in  his \ntestimony, he was not sure the Claimant talked to a supervisor soon after the completed the task.  \n(Tr. 057-058) \n On cross-examination, Mr. Allen confirmed that he testified earlier about an incident with \nthe rotors.  He admitted that the Claimant got injured trying to take the rotors off the truck.  Mr. \nAllen  said  the  incident  occurred  around  9:00  a.m.  or  10:00  a.m.  he  admitted  that  the  Claimant \ncompleted  the  brake  job  and  put  everything  back  together.    Mr.  Allen  also  confirmed  that  the \nClaimant  continued  to  work  several  weeks  after  the  incident.    He  confirmed  that  he  and  the \nClaimant are friends. \nMr. Douglass Meiggs \n Mr. Meiggs was called as a witness for the Respondents.  He testified that he works for the \n\nElliott – H207786 \n10 \n \nCity  of  Little  Rock.    He  confirmed  that  he  has  been  with  the  city  for  eleven  (11)  years.    His \nemployment duties involve the heavy equipment, the dump trucks, backhoes, dozers, salt dozers, \nand equipment of that nature.  According to Mr. Meiggs, he is responsible for maintaining and the \nrepair  work  on  these  machines.    He  confirmed  that  he  is  the  Claimant’s direct supervisor.    Mr. \nMeiggs gave an overview of the process for an employee to report an injury.  (Tr.  077) \n He was shown a copy of the Forn AR-N for this claim, which is dated October 5,2022.  Mr. \nMeiggs stated that prior to that date, he did not have any idea that the Claimant was claiming an \ninjury.  The first Mr. Meiggs heard of a hernia injury was one morning while standing around the \nclock, when the Claimant came in and said he was going to have to fill out a sheet because he had \na doctor’s appointment.  Per Mr. Meiggs, the Claimant said he had a hernia, and that was all he \nsaid.  However, he denied that the Claimant said anything about it being a work injury.  Per Mr. \nMeiggs, the Claimant did not say anything about it being a work injury or anything of that nature.   \n Mr. Meiggs denied that he was aware of an alleged injury before October 5.  He confirmed \nhearing the Claimant’s testimony about an injury having been reported on September 7.  Mr. \nMeiggs did not recall walking by and seeing the Claimant sitting down as he claims.  According \nto Mr. Meiggs, Tony Allen was assigned repairs on that truck, and he was not aware the Claimant \nwas assisting him with the repair. \n He confirmed that he was aware they had an older model dolly in the shop to help with \nlifting heavy equipment.  Mr. Meiggs confirmed that after the Claimant reported this incident, their \nfleet manager bought a newer dolly.   \n Mr. Meiggs confirmed that from September 7, 2022, until when the Claimant went to the \nemergency room, he performed his regular duties.  According to Mr. Meiggs, he was not aware of \nanything going on.  Mr. Meiggs agreed he saw the Claimant on a regular basis.  He testified that \n\nElliott – H207786 \n11 \n \nif he had just blown the Claimant off as he alleges, the Claimant should have gone to his supervisor, \nthe fleet manager.  However, this did not happen.  Per Mr. Meiggs, neither Lucas Bruner or Tony \nAllen is the Claimant’s supervisor, they are just coworkers and friends. \n On cross-examination, Mr. Meiggs denied that the Claimant reported any sort of strain or \ndiscomfort prior to reporting his alleged workers’ compensation claim.  Nor did he recall the \nClaimant  having  engaged  in  a  conversation  about  an  injury  or  lack  of  equipment.    Mr.  Meiggs \ntestified  that  although at the time of the Claimant’s workplace injury they had a drum dolly \nmachine  to  help  with  the  lifting  of  drums,  it  did not  malfunction  because  it  was  a  two-wheeled \nmachine.  It was an older machine, but there was nothing that was malfunctioning or not usable \nabout it.  \n Under further questioning, Mr. Meiggs explained: \n Q: Do you know the reason that you -- you guys replaced it was with -- with a \nnew one if it was completely adequate to do the job? \n A: Well, it is my understanding after the – the incident was brought up, they \nsaid that the -- I guess they felt the one we had was not sufficient. \n Upon  being  questioned  by  the  Commission,  Mr.  Meiggs  was  asked  if  he  had  any \nknowledge of any activities that the Claimant could have been engaged in that would have caused \nhim to have a hernia injury.  He answered: “You know, when I see the guy on or about that time \nwith a motor on the back of his truck, it makes you wonder but...”      \n On redirect examination, Mr. Meiggs said that the Claimant had the motor in the back of \nhis personal vehicle.  He confirmed that he had heard the Claimant had his own business called \nPhase One Auto.  This business was something outside of the Claimant’s work for the city.   \n\nElliott – H207786 \n12 \n \n Upon recross examination, Mr. Meiggs testified that he does not have a clue as whether \nthe Claimant is engaging in any heavy lifting or strenuous activities with Phase One Auto.    \n        Medical Evidence \n  \n On  October  4,  2022,  the  Claimant  sought  medical  treatment  from  the  Emergency \nDepartment/ED, at the Central Arkansas Veterans Health Care System.  He reported shooting pain \nfrom his groin to his shoulder.  Initially his pain was only with certain movements, but now painful \nall the time.  At that time, the Claimant reported that the pain had been worsening for “a long time” \nand needed to be addressed.  The Claimant underwent a COMPLETE CT OF THE ABDOBMEN \nAND  PELVIS  WITH  CONTRAST  due  to  right  lower  quadrant  abdominal  pain.    Dr.  Robert \nJimmerson II, was the referring physician.  A Preliminary Report with full report to follow was \ninitially generated.  The following findings were provided to the care team:  \nRight  sided  moderate  sized  fat  containing  inguinal  hernia  with  fat  stranding,  fluid  and \nthickening of the hernia sac. Correlate for clinical signs of irreducibility due to concern for \nstrangulation.  Uncomplicated left fat containing inquial hernia.   \n \nA final report was provided which showed comparison of a CT of the ABDOMEN done \n12/7/2019;  ABDOMEN  6/19/2019.    The  primary  interpreting  radiologist  was  Dr.  Thomas  N. \nDavis.  His final impression was: “Bilateral fat-containing inguinal hernias, potential associated \ninflammation  on  the  right  as  noted  in  the  preliminary  report.”  No  indication  for  acute  surgical \nintervention was indicated at that time.   \nNext, the Claimant underwent evaluation at Concentra Health Center, on October 5, 2022, \ndue to continued abdominal pain.  The Claimant reported that he had been seen at the VA and a \nCT scan confirmed bilateral inguinal hernias.  He stated that he had an appointment with a surgeon \nscheduled, which he planned to attend. Clinton Bearden, PA, evaluated the Claimant and assessed \n\nElliott – H207786 \n13 \n \nhim  with  bilateral  inguinal  hernias,  for  which  he  prescribed  medications  and  placed  physical \nrestrictions on him.  \n On  November  9,  2022,  the  Claimant  underwent  his  first  postoperative  visit  with  Dr. \nKimberly Jackman at the VA’s General Surgery  Center.  The Claimant  said that he was having \nsome pain and discomfort in his scrotum and his lower abdomen with movement.  Per this post-\nsurgery note, Dr. Jackman discussed with the Claimant that this was normal postoperative course \nand that it would resolve over time.  However, the Claimant said that he was improving daily.    \n The  Claimant  underwent  a  follow-up  evaluation  on  December  14,  2022,  at  the  VA \nfollowing  his  surgery.    Per  this  surgery  note,  the  Claimant  underwent  robotic  repair  of  bilateral \nhernias on October 27, 2022.  The Claimant reported that he was feeling better than he was duirng \nthe last visit.  At that time, his swelling and pain had improved.  He continued to have pain “here \nand there,” and around the testicles.  The Claimant described his pain as a pinching pain, which \nwas relieved by him making certain manual adjustments.  On physical examination the Claimant’s \nsmall mass was palpated  by Dr. Jackman but no  noticeable inguinal hernias demonstrated.   His \npain remained the same since surgery with slow and mild improvements.  The Claimant’s FMLA \nwas extended to January 3, 2023.  His restrictions were continued which included no lifting of any \nheavy objects until he was cleared to go back to work. \n                    Adjudication \n \nCompensability \n \nHere, the Claimant has essentially asserted that he sustained hernia injuries during and in \nthe scope of his employment with this respondent-employer on September 7, 2022.  A CT scan \nperformed on October 4, 2022, at the VA demonstrates that the Claimant suffered “Bilateral fat-\n\nElliott – H207786 \n14 \n \ncontaining inguinal hernias.” The burden rests on the claimant to prove all the elements necessary \nto establish his alleged bilateral inguinal hernias injuries.   \nThe requirements for the compensability of this injury are set forth in Ark. Code Ann. §11-\n9-523(a).  Specifically, this subsection provides:  \nIn all cases of claims for hernia, it shall be shown to the satisfaction of the Workers’ \nCompensation Commission:  \n(1) that the occurrence of the hernia immediately followed as the result of sudden \neffort, severe strain, or the application of force directly to the abdominal wall; \n(2) that there was severe pain in the hernial region;  \n(3) that the pain caused the employee to cease work immediately;  \n(4) that notice of the occurrence was given to the employer within forty-eight (48) \nhours thereafter; and  \n(5) that the physical distress following the occurrence of the hernia was such as to \nrequire  the  attendance  of  a  licensed  physician  within  seventy-two  (72)  hours  after  the \noccurrence.  \n The  record  shows  that  the  Claimant  sustained  bilateral  inguinal  hernias.    Therefore,  the \nrequirements of the foregoing hernia statute will apply. \nAfter considering all the evidence presented, I am persuaded that the Claimant’s testimony \nconcerning the sequence of events surrounding his alleged work-related incident of a workplace \ninjury on September 7, 2022, is not credible and does not set forth an accurate account of these \nevents.  I have reached this conclusion because among other things, the Claimant’s testimony is \nnot corroborated by the medical evidence of record, or his own witness, Mr. Allen’s narration of \nthe sequence of the events nor by Mr. Meiggs’ testimony.  \nHere, the Claimant alleges he had a work-related accident on September  7,  2022, which \nresulted in bilateral hernia injuries.  However, he did not seek medical attention until some twenty-\nseven (27) days later, which was on October 4, 2022.  Clearly, any workplace activity the Claimant \nwas  involved  in  on  September  7,  did  not  require  the  attendance  of  a  licensed  physician  with \n\nElliott – H207786 \n15 \n \nseventy-two (72) hours as mandated by the statute.  To the contrary, medical report dated October \n4 shows that the Claimant had been experiencing problems for three to four months before seeking \nmedical attention.  Although the Claimant maintained that this medical record is not accurate and  \nshould have reflected three to four weeks, instead of three to four months, I am not persuaded that \nthis is not a clerical error considering further down in this report, there is a notation of the Claimant \nreported that the problem had been worsening for a long time and needed to be addressed.   \nWhile  the  Claimant  maintained  he  was  removing  a  drum  from  a  wheel  when  his  injury \noccurred,  Mr.  Allen  testified  that  they  had  been  taking  turns  hammering  to  remove  a  rotor.    Of \ngreat  significance,  is  the  fact  that  the  Claimant  continued  working  from  September  7  until  his \nsurgery in late October.  No probative evidence was presented showing that the Claimant’s hernias \nresulted from a sudden effort, severe strain, direct application of force to the adnominal wall, or \nthat he ceased working due to pain.  Mr. Allen’s testimony proves that they were simply fatigued \nfrom hammering to remove the rotor, which was difficult to remove due to an accumulate of salt \nand other residue.  As a result, they both rested and resumed working on the truck.  The Claimant \nwas able to complete the brake job and his shift, and as noted above he continued several weeks \nthereafter.   There is no documentation whatsoever showing that the Claimant made a request to \nmanagement  for  any  type  of  accommodations  in  performing  his  employment  duties,  which \nrequired heavy lifting and very strenuous work activities.        \nThe instant Claimant is a highly intelligent and well-read individual.  He has worked for \nthe city since 2012 and served as president of the union for the last eight (8) years.  The Claimant \nhas had more than a couple of workplace injuries with the city.  He also acts and is recognized as \na team leader among his colleagues.  Although for these reasons I found the Claimant to be very \nknowledgeable and familiar with the procedure for filing a workers’ compensation claim, in this \n\nElliott – H207786 \n16 \n \ninstance I am persuaded he did not meet the 48-hour notice requirement for reporting the injury to \nhis employer, and nor did he follow the process. In fact, Mr. Allen gave conflicting and confusing \ntestimony in this regard.  As such, I did not find him to be credible about the Claimant reporting \nof the alleged injury to his supervisor, Mr. Meiggs.  He [Mr. Allen] and the Claimant are also good \nfriends.   Nevertheless, I found Mr. Meiggs to be a credible witness.  Mr. Meiggs credibly testified \nthat the Claimant did not report an injury to him until October 5, which is significantly more than \nforty-eight hours after the alleged workplace activity.  In addition to this, Mr. Meiggs testified that \nthe Claimant was not assigned to perform the repairs on the vehicle that he allegedly got injured \non.  There was evidence proving that the Claimant was engaged in heavy lifting activities outside \nof his work with the city, which  entailed  work  for  his own personal automotive repair  business \naround the same time that he sustained the hernia injuries.  However, the denied having engaged \nin any strenuous activities outside of work.  \nI think it is noteworthy that the surgical report was not made a part of the record.  Moreover, \nno history of a workplace injury was reported by the Claimant in any the initial medical notes.   \nIn  my  opinion,  that  it  would  require  sheer  speculation  and  conjecture  to  attribute  the \nClaimant’s hernias to his employment  duties.    Conjecture  and  speculation,  however,  plausible, \ncannot be allowed to supply the place of proof.  Dena Construction Company v. Hearndon, 264 \nArk. 791, 575 S.W. 2d 155 (1979); Arkansas Methodist Hospital v. Adams, 43 Ark. App. 1, 858 \nS.W.  2d  125  (1993).    Obviously,  the  Claimant  honestly  believes  his  hernias  are  related  to  his \nemployment.  However, no matter how sincere a Claimant’s belief that  a  medical  problem  is \nrelated  to  a  compensable  workplace  injury,  such  belief  is  not  sufficient  to  meet the Claimant’s \nburden  of  proof.   Killingberger v.  Big  “D” Liquor,  AWCC  E408248  and  E408249,  Full \nCommission Opinion August 29, 1995.                     \n\nElliott – H207786 \n17 \n \nTo summarize, the Claimant has failed to prove by a preponderance of the evidence that \nhe  suffered  compensable  bilateral  inguinal  hernias  while  performing  his  employment  duties  for \nthe city on September 7, 2022.   \nAdditionally, the remaining issues of medical treatment, temporary total disability and a \ncontroverted attorney’s fee have been rendered moot and not addressed in this Opinion.   \n                      Order \n Based on the foregoing findings of fact and  conclusions of law,  I find that the Claimant \nfailed to meet his burden of proof that he sustained workplace hernias while working on September \n7, 2022.  Therefore, this claim is hereby respectfully denied and dismissed in its entirety.       \nIT IS SO ORDERED. \n \n \n          ______________________________ \n          HON. CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE","textLength":33481,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H207786 CLARENCE ELLIOTT, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK (SELF-INSURED), RESPONDENT EMPLOYER RISK MANAGEMENT RESOURCES/ THIRD PARTY ADMINISTRATOR/TPA RESPONDENT OPINION FILED SEPTEMBER 12, 2023 Hearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:4"],"injuryKeywords":["hernia","back","strain","shoulder"],"fetchedAt":"2026-05-19T23:02:41.755Z"},{"id":"alj-G500916-2023-09-12","awccNumber":"G500916","decisionDate":"2023-09-12","decisionYear":2023,"opinionType":"alj","claimantName":"Laquita Ferris","employerName":"Baxter County Regional Hospital","title":"FERRIS VS. BAXTER COUNTY REGIONAL HOSPITAL AWCC# G500916 SEPTEMBER 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FERRIS_LAQUITA_G500916_20230912.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FERRIS_LAQUITA_G500916_20230912.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G500916 \n \nLAQUITA I. FERRIS, EMPLOYEE        CLAIMANT \n \nvs. \n \nBAXTER COUNTY REGIONAL HOSPITAL,  \nSELF-INSURED EMPLOYER          RESPONDENT #1 \n \nRISK MANAGEMENT RESOURCES,TPA         RESPONDENT   #1 \n \nDEATH & PERMANENT DISABILILTY  \nTRUST FUND        RESPONDENT #2 \n \nOPINION FILED SEPTEMBER 12, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the  19\nth\n day of July, \n2023, in Mountain Home, Baxter County, Arkansas. \n \nClaimant  is  represented  by Mr.  Frederick  S.  “Rick”  Spencer,  Attorney-at-Law,  of  \nMountain Home, Arkansas. \n \nRespondents #1 are represented by Mr. Walter A. Murray, Attorney-at-Law, of Little Rock, \nArkansas. \n \nRespondent  #2  is  represented  by  Ms.  Christy L.  King,  Attorney-at-Law, of  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n  \n A hearing was conducted on the 19th day of July, 2023, to determine the claimant’s \nentitlement to additional  medical treatment under the direction of Dr. Chris Arnold,  and \nadditionally,  whether  the  claimant  is  entitled  to  permanent  and  total  disability,  plus \nattorney fees.  Respondent #2 waived its right of appearance.  A copy of the Prehearing \nOrder dated February 14, 2023, was marked “Commission Exhibit 1” and made part of \nthe  record  without  objection.    The  Order  provided  that  the  parties  stipulated  that  the \nArkansas  Workers’  Compensation has  jurisdiction  of  the  case and  that  there  was  an \nemployer/employee relationship which existed on February 1, 2015, when the claimant \n\nFERRIS – G500916 \n \n2 \n \nsustained  a  compensable  injury  to  her  left  knee  arising  out  of  her  employment.    The \nclaimant earned an average weekly wage of $398.36, entitling her to compensation rates \nof $266.00 for temporary total disability and $200.00 for permanent partial disability per \nweek.  Further, the Court of Appeals decision dated December 12, 2018, was the law of \nthe case.  Both parties’ response to the prehearing questionnaire were made a part of the \nrecord without objection.  The  initial witness to testify was the claimant,  Laquita Ferris.  \nHer  friend,  Cheryl  Edwards,  also  testified.  The  claimant  submitted  one  exhibit  which \nconsisted of thirty-one (31) pages of medical reports with an index which was admitted \nwithout objection.  From a review of the record as a whole, to include medical reports and \nother matters properly before the Commission, and having had an opportunity to observe \nthe  testimony  and  demeanor  of  the  witnesses,  the  following  findings  of  fact  and \nconclusions of law are made in accordance with Ark. Code Ann. §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n \n2.  That an employer/employee  relationship existed on  February  1,  2015, \nwhen the claimant sustained a compensable injury to her right knee. \n  \n3.  Claimant  earned  an  average  weekly  wage  of  $398.36,  entitling  her  to \ncompensation rates of $266.00 for temporary total disability and $200.00 \nfor permanent partial disability. \n \n4.  That  the  claimant  has  proven,  by  a  preponderance  of  the  credible \nevidence,  that  she  is  entitled  to  additional  reasonable  and  necessary \nmedical    treatment    consisting    of    conservative    treatment    and \nmanagement   under   the   direction   of   Dr.   Chris   Arnold and   the \nconservative   treatment   and   management is   causally   related   and \nreasonably  necessary  for  the  treatment  of  the  work-related  left  knee \ninjury. \n \n5.  The  claimant  has  failed  to  satisfy  the  burden  of  proof  that  she  is \npermanently and totally disabled. \n\nFERRIS – G500916 \n \n3 \n \n \n   \n6.  All other issues are moot. \n  \n7.  I  f not already paid, the respondents  are ordered to pay for the cost of \nthe transcript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The  claimant,  testified  that  she  was  sixty-one  (61)  years  old  at  the  time  of  the \nhearing and was born on March 12, 1962.  She graduated the eleventh grade, obtained \nher GED, and then obtained her CNA certification.  She worked for the respondent for \napproximately thirteen (13) years and was working there when she was hurt on February \n1, 2015.  She was originally treated by Dr. Rauls, an orthopedic surgeon in Mt. Home, \nwho performed a scope on her left knee, and who then performed a reconstruction of the \nknee.    Neither  was  successful.   She  testified  she  then  obtained a change of  physician \nand was treated by Dr. Chris Arnold, who performed a total knee replacement on February \n27, 2020, and that procedure was unsuccessful.  Approximately three  (3) months after \nthe knee replacement, a manipulation was performed to break up the scar tissue and this \nwas the  last  procedure  performed  by  Dr.  Arnold.    “Since  my  total  knee  replacement,  I \nhave not been able to do basically pretty much anything long term.  Hiking, I used to love \nhiking.    That’s  pretty  much  out  of  the  question.    Riding  bikes,  gardening,  pretty  much \nanything that I used to enjoy is pretty much gone.” (Tr. 7-10)  “I do not have a day that I \nam not in pain.”  \nIn  regard  to  her  use  of  a cane,  she  stated  “My  knee  is  very  weak.    I  would  fall \nwithout it.  My knee locks up.  When I’m walking, it’s not unusual for my knee to lock up \nand for me to fall.  Short distances, I would probably be okay just walking a short distance \nwithout it, but I don’t take a chance.” (Tr. 11)   She also stated that she wore a knee brace \n\nFERRIS – G500916 \n \n4 \n \nninety-five percent (95%) of the time.  The claimant then took her knee brace off to show \nhow the left knee had atrophied. (Tr. 12-13)  She went on to say that she spends most of \nthe day in bed due to excruciating pain.  (Tr. 14)   “Laying down is where I get most of my \nrelief, with it propped up.”   \nI  take  Hydrocodone,  10  milligrams,  three  (3)  times  a  day and  admitted  that  she \nsuffered no side effects from the medication. (Tr. 15)   She also stated that she takes over \nthe counter Tylenol and also Flexeril and suffers from leg cramps.  The injury has led to \ndepression and she’s taking 50 milligrams of Lexapro, once a day, along with Lorazepam \nat night.  She admitted to driving, but not long distances.  She calls her groceries in to \nWalmart and they load it.  “I cannot go walk around the store and do my grocery shopping \nany longer.”  (Tr. 16-17) \n In regard to sleep, she testified her sleep habits were terrible and she wakes up \nmultiple  times  a  night.    The  nerves  on  the  right  side  of  her  knee  where  Dr.  Rauls \nperformed the surgery were damaged.  On a good night, she stated she could get six (6) \nhours of sleep and there were ten (10)  or eleven (11) good nights a month.  On a bad \nnight she would only get three (3) or four (4) hours of sleep. (Tr. 18-19)  She went on to \ntestify that she never feels rested in the morning.  (Tr. 31) \n Under cross-examination, the claimant testified that she was in bed off and on all \nday, and admitted that although she did not get eight (8) hours of sleep a night, she would \nget some sleep during the day.  “I might sleep an hour or so and I might be awake.  And \nI might be awake a couple of hours or so and then I might be asleep again.” (Tr. 24)  She \nadmitted that she did not wear the knee brace all of the time.  She also admitted that she \nhad ridden a motorcycle with her fiance two (2) years ago, but stated they had sold the \n\nFERRIS – G500916 \n \n5 \n \nmotorcycle.   She denied a trip to Sturgis or Little Rock on the motorcycle and stated her \nlongest trip on it was only about eight (8) miles. (Tr. 26-27)  In regard to household chores, \nthe claimant testified that she did the dishes but did not vacuum and  that she does the \nlaundry, if she feels like it. (Tr. 31) \n Cheryl Edwards was called as a witness and testified that she sees the claimant \n“probably weekly, every other week.”  She stated she works as a travel nurse so she is \nnot home as much.  “But when I do see her, it’s, I go to her house and she’s either like \nsitting in her recliner with her leg up or sitting on her patio.  She has came to some of the \nsoftball games, but she’s you know, with her cane.  It scares me to death;  I’m afraid she’s \ngonna fall.  But you can tell she’s in pain.  She’s grimacing, she’s hurting.”  “She doesn’t \nget out and do things with us like she used to also.” (Tr. 34-35)  Ms. Edwards went on to \nstate that as an ICU nurse, she will go on facial looks and the claimant is not one who will \nsay I am hurting but with her grimaces and such, I would rate her flat score a ten (10), for \nsevere pain.  She also felt that there was severe atrophy of the left knee. (Tr. 36-37) \n Under  cross-examination,  Ms.  Edwards  was  asked  about  muscle  tension  and \ncould it be faked.  She responded that it could be faked but she did not see “why they  \nwould.”  (Tr. 39) \n In regard to the medical that was admitted without objection, a report dated July 6, \n2015,  a  follow-up  report  by  Dr.  Rauls,  provided  for  an  assessment  of  left  knee  pain \nfollowing a patellofemoral ligament reconstruction on May 5 and recommended beginning \nphysical  therapy  and  to  remain  off  work  with  no  duty  for  another  four  (4)  weeks. \n(Cl. Ex. 1, P. 1) \n\nFERRIS – G500916 \n \n6 \n \n The next medical report dated October 15, 2015, was provided by Dr. Arnold and \nstated that in regard to the left knee pain, following MPFL reconstruction, he observed \ntwo (2) issues, severe arthrofibrosis and would recommend injections, and if not better in \na month, he would recommend lysis of adhesions, arthroscopically, and in addition felt \nthat she had a neuroma about the media condyle.  If she was not better in a month, he \nrecommended lysis of the adhesions and manipulation. The medical report referred to a \nprior procedure in 1982 and a previous tibial tubercleplasty in 2005 and that she did well \nuntil the recent work-related injury.  He also stated that he wanted her to only perform a \nsit down job. (Cl. Ex. 1, P. 2-4)  The claimant returned to Dr. Arnold November 19, 2015, \nwith  left  knee  pain  and  with  severe arthrofibrosis.    The  plan provided that  the  claimant \nhad  a  very  fibrotic  knee.    He  opined  that  the  next  step  would  be  a  scope  with  lysis of \nadhesions and again recommended a sit down job only. (Cl. Ex. 1, P. 5-6).   \nSurgery was then performed by Dr. Arnold on December 3, 2015, and the report \nprovided under findings that there was an exuberant amount of fibrotic tissue about the \nsuprapatellar space along with a grade 3 chondral defect patella. The lateral meniscus \nrevealed some calcification. The knee was manipulated after the lysis of adhesions.  He \nopined that if she experienced persistent symptoms, he would recommend exploration of \nthe medial condyle, but he thought that was unlikely. (Cl. Ex. 1, P. 7-9)   An AP of the \nlateral  left  knee  dated  December  3,  2015,  provided  for  calcification  about  the  medial \nlateral meniscus. (Cl. Ex. 1, P. 10) \n The claimant returned for a follow-up with Dr. Arnold on December 17, 2015, and \nthe  report  provided  she  was  better  than  before  the  surgery  and  that  she  had  to  get \naggressive  with  the  range  of  motion.   He  again  recommended  a  sit  down  job  only. \n\nFERRIS – G500916 \n \n7 \n \n(Cl. Ex. 1, P. 11)  The claimant then again returned to Dr. Arnold on January 14, 2016, \nand  the  report  provided  her  quads  were  weak  with  a  trace  of  effusion,  and she  had \nimproved mobility but still had significant pain.  He felt that she was improving and that \nthey needed to get aggressive with strengthening and she needed to perform a sit down \njob.  (Cl. Ex. 1, P. 12) \n The claimant presented to Dr. Mark A. Powell on February 3, 2016, with the chief \ncomplaint being left knee swelling.  The report provided her left knee was hyper-sensitive \nto the touch but not warm, and  she was able to perform a straight leg raise without an \nextensor leg.  He recommended that she continue to follow Dr. Arnolds’ protocol and gave \nher  an  off  work  note.  (Cl.  Ex.  1,  P.  13)    The  claimant  then  returned  to  Dr.  Arnold  on \nFebruary 11, 2016, and the report provided that her motion was improving, and that there \nwas a little inflammation. He recommended a cortisone shot and she agreed.  He again \nrecommended a sit down job. (Cl. Ex. 1, P. 14)  The claimant returned to Dr. Arnold again \non  March  10,  2016,  and  the  report  provided  that  she  was  “doing  great”  and he \nrecommended viscosupplementation into the left knee and if it was not better, a cartilage \nrestoration  procedure  such  as  an  osteoarticular  autograft  and  in  regard  to  work,  again \nrecommended a sit down job. (Cl. Ex. 1, P. 15)  The claimant continued to return to Dr. \nArnold with the next visit on April 7, 2016.  The report provided for weak quads of the left \nknee  and  a  recommendation  of  gel  shots  and  if  she  did  not  get  better,  a  cartilage \nrestoration procedure of the patella. (Cl. Ex. 1, P.16)   \n A  report  by  Dr.  Terry  J.  Sites  on  April  22,  27,  2016,  provided  that  the  claimant \nreturned for a second left knee Supartz injection which was tolerated well  and that she \nsuffered  from  osteoarthritis  of  the  left  knee  (Cl.  Ex.  1,  P.17)    However  the  claimant \n\nFERRIS – G500916 \n \n8 \n \npresented to Dr. Powell on April 27, 2016, for a third Supartz injection, and stated that the \nlast injection caused a rash and fluid built up in a knot.  The claimant wanted to continue \nwith  the  injections.    She  then  presented  to  Dr.  Arnold  on  May  5,  2016,  and  the  report \nprovided there was left knee pain secondary to a grade 3 chondral defect and opined that \nher  current  symptomatology  was  related  to  wear  behind  the  patella.   He  opined \nthat   he   thought     the     next    step   would    be    to   scope   the   knee   and   perform   a  \ncartilage restoration  procedure  of  the  patella  and  recommended  an  osteoarticular  \nautograft-patella.  (Cl. Ex. 1, P. 19-20) \n A  Functional  Capacity  Impairment  Evaluation  was  performed  on  November  5, \n2020, and the claimant was rated with a  fifteen percent (15%) impairment rating to the \nbody as a whole and thirty-seven percent (37%) lower extremity impairment as a result \nof  a  work-related  injury  and  the  report  stated  that  the  findings  were  the  result  of \nobjective  findings.   Dr.  Arnold  signed  off  and  agreed  with  the  impairment  evaluation. \n(Cl.  Ex.  1,  P.  21-25)    Another  follow-up  occurred  on  August  3,  2021,  with  Advanced \nOrthopedic Specialists and Dr. Arnold, and the plan provided that the claimant had some \ntendinitis and recommended Mobic home exercises and if no better in six (6) months a \nfurther work up.  The report provided that the knee was better than before the surgery. \n(Cl. Ex. 1, P. 26-28)  The claimant returned on August 18, 2022, the last report of record, \nand the report by Dr. Arnold provided that after counseling with the patient, we decided \non  conservative  management  and  observation.  An  x-ray  of  the  left  knee  provided  for \ngood positioning of the components. (Cl. Ex. 1, P. 29-30) \n      DISCUSSION AND ADJUDICATION OF ISSUES \n \n\nFERRIS – G500916 \n \n9 \n \nIn  the  present  matter,  the  parties  stipulated  that  the  claimant  sustained  a \ncompensable injury to her left knee on February 1, 2015.  The claimant is therefore not \nrequired to establish “objective medical findings” in order to prove that she is entitled to \nadditional benefits. Chamber Door Indus., Inc. v Graham, 59 Ark. App. 224, 956 S.W.2d \n196 (1997) \nHowever, when assessing whether medical treatment is reasonably necessary for \nthe treatment of a compensable injury, we must analyze the proposed procedure and the \ncondition  that  it  is  sought  to  remedy.   Deborah  Jones  v.  Seba,  Inc., Full  Workers’ \nCompensation filed December 13, 1989. (Claim No. D512553).  The respondent is only \nresponsible  for  medical  services  which  are  causally  related  to  the  compensable  injury.  \nTreatments  to  reduce  or  alleviate  symptoms  resulting  from  a  compensable  injury,  to \nmaintain the level of healing achieved, or to prevent further deterioration of the damage \nproduced by the compensable injury are considered reasonable medical services.  Foster \nv. Kann Enterprises, 2009 Ark. App. 746, 350 S.W.2d 796 (2009).  Liability for additional \nmedical  treatment  may  extend  beyond  the  treatment  healing  period as  long  as  the \ntreatment is geared toward management of the compensable injury.  Patchell v. Wal-Mart \nStores, Inc., 86 Ark. App. 230, 180 S.W.3d 31 (2004). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe   Arkansas   Workers’   Compensation   Act   and   must   sustain   that   burden,   by   a \npreponderance of the evidence.  Dalton v. Allen Engineering Co., 66 Ark. App 260, 635 \nS.W.2d 543.  Injured employees have the burden of proving, by a preponderance of the \nevidence,  that  the  medical  treatment  is  reasonably  necessary  for  the  treatment  of the \ncompensable injury.  Owens Plating Co. v. Graham, 102 Ark. App 299, 284 S.W. 3d 537 \n\nFERRIS – G500916 \n \n10 \n \n(2008).  What constitutes reasonable and necessary treatment is a question of fact for \nthe  Commission.   Anaya v. Newberry’s 3N Mill,  102  Ark.  App.  119,  282  S.W.3d  269 \n(2008).  \nThe  claimant  injured  her  left  knee  in  a  work-related  injury  on  February  1,  2015.  \nThe injury was accepted as compensable and surgery was performed on her left knee by \nDr.  Rauls.    The  claimant  was  not  satisfied  with  the  results  of  her  knee  surgery  and \nobtained a change of physician to Dr. Arnold, who has treated her since the change of \nphysician order was obtained.   Dr. Arnold performed a second surgery on December 3, \n2015, where the knee was manipulated after the lysis of adhesions.   \nOn  March  10,  2016,  Dr.  Arnold  recommended  visocupplementaion  into  the  left \nknee  and  if  the  claimant  did  not  improve,  a  cartilage  restoration  procedure  through  an \nosteoarticular autograft.   Since  that  date,  the  claimant  has been treated  with  injections \nalong with other conservative treatments.  On the claimant’s last visit of record with Dr. \nArnold on August 18, 2022, conservative treatment management was recommended. \nIn workers’ compensation law, the employer takes the employee as he finds him \nand employment circumstances that aggravate pre-existing conditions are compensable. \nHeritage Baptist Temple v. Robinson, 82 Ark. App. 460, 120 S.W. 3d 150 (2003).  Here, \nthe claimant had no doubt suffered from some previous issues involving her left knee.  It \nis well settled that the Commission has the authority to accept or reject medical opinions \nand  the  authority  to  determine  their  medical  soundness  and  probative  force.    In  the \npresent  matter  there  appears  to  be  no  release  for  the  claimant  from  Dr.  Arnold  and \nalthough  he  had  previously  recommended  other  more  aggressive  treatments,  his final \nreport of record on August 18, 2022, provided that the claimant should be treated with \n\nFERRIS – G500916 \n \n11 \n \nconservative  treatment  and  management.    After  reviewing  all  of  the  evidence,  without \ngiving the benefit of the doubt to either party, there is no alternative but to find that the \nclaimant has satisfied her burden of proof to prove, by a preponderance of the credible \nevidence,   that   she   is   entitled   to   conservative   treatment   and   management   as \nrecommended by Dr. Arnold. \nIn regard to permanent and total disability, it is noted that the claimant is not entitled \nto wage loss disability for a scheduled injury.  Ark. Code Ann. §11-9-521.  Moser v. Ark. \nLime  Co.,  40  Ark.  App  113,  896  S.W.2d  188  (1993).    Specifically,  with  respect  to \npermanent and total disability benefits, Ark. Code Ann. § 11-9-519 (e) provides as follows: \n(1)  “Permanent  total  disability”  means  inability  to  earn  any  meaningful \nwage in the same or other employment. \n \n(2) The burden of proof shall be on the employee to prove inability to earn \nany meaning wage in the same or other employment. \n \nArkansas   Code   Annotated   § 11-9-102(4)(F)(ii)(a)   requires   further   that:   (a) \nPermanent benefits shall be awarded only upon a determination that the compensable \ninjury  was  the  major  cause  of  the  disability  or  impairment,  and;    (b)  If  any  pre-existing \ndisease or  condition or  the  natural process of  aging  to  cause  or prolong  disability or  a \nneed for treatment, permanent benefits shall be payable for the resultant condition only if \nthe  compensable  injury  is  the  major  cause  of  the  permanent  disability  or  need  of \ntreatment.  Permanent impairment is any functional or anatomical loss after the healing \nperiod  has  been reached.  Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 S.W.2d \n411 (1994).  Any  determination  of  the  existence  or  extent  of  a  physical  impairment  \nshall be supported  by  objective  and  measurable  physical  findings.  Ark. Code Ann. \n§11-9-704(c)(1).  Objective  findings  are  those  that  cannot  come  under  the  voluntary \n\nFERRIS – G500916 \n \n12 \n \ncontrol of the claimant. Ark. Code Ann. §11-9-102(16)(A)(i).  Medical opinions addressing \nimpairment must be stated within a reasonable degree of medical certainty.  In the present \nmatter, Dr. Arnold has never opined that the claimant was unable to work but has stated \nthat the claimant has gotten better after the surgeries and treatments and opined as early \nas the year 2016, that the claimant could perform sit down jobs, which he continued to \nrecommend.  He has never issued an opinion that provided the claimant  was unable to \nwork.  He agreed with the impairment evaluation provided by Functional Testing Centers, \nInc., of a fifteen percent (15%) whole person rating and a thirty-seven percent (37%) lower \nextremity rating as a result of the work-related injury.  \n It  is  also  noted  that  the  claimant  testified  she  could  drive  short  distances  and \nperform certain household chores, but could not perform them over an extended period \nof time due to pain, and further that the claimant’s friend who was a nurse testified that \nthe  claimant  grimaced  when  performing  certain  actions.    However,  the  friend  agreed \nunder cross-examination that “muscle tension” could be faked, stating “I mean, I guess \nthey could, but I don’t know why they would.”  Based upon the available evidence and the \napplicable law, there is no alternative but to find that the claimant has failed to satisfy her \nburden of proof to prove, by a preponderance of the evidence, that she is permanently \nand totally disabled. \n After reviewing all of the evidence without giving the benefit of the doubt to either \nparty, there is no alternative but to find that the claimant has satisfied her burden of proof \nto prove, by a preponderance of the evidence, that she is entitled to additional reasonable \nand necessary medical treatment consisting of conservative treatment and management \nunder  the  direction  of  Dr.  Chris  Arnold  and  that  the  conservative  treatment  and \n\nFERRIS – G500916 \n \n13 \n \nmanagement  is  causally  related  and  reasonably  necessary  for  the  treatment  of  the \nwork-related  left  knee injury.  The  claimant  has  failed  to  satisfy  the  required  burden of \nproof to prove, by a preponderance of the evidence, that she is permanently and totally \ndisabled.  All other issues are moot.  If not already paid, the respondents are ordered to \npay the cost of the transcript forthwith.  \n IT IS SO ORDERED.     \n      ___________________________ \n        JAMES D. KENNEDY  \n      Administrative Law Judge","textLength":24144,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G500916 LAQUITA I. FERRIS, EMPLOYEE CLAIMANT vs. BAXTER COUNTY REGIONAL HOSPITAL, SELF-INSURED EMPLOYER RESPONDENT #1 RISK MANAGEMENT RESOURCES,TPA RESPONDENT #1 DEATH & PERMANENT DISABILILTY TRUST FUND RESPONDENT #2 OPINION FILED SEPTEMBER 12, 2023 Hearing...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:02:43.826Z"},{"id":"alj-H204175-2023-09-11","awccNumber":"H204175","decisionDate":"2023-09-11","decisionYear":2023,"opinionType":"alj","claimantName":"Opal Russell","employerName":"St. Bernard Hospital Inc","title":"RUSSELL VS. ST. BERNARD HOSPITAL INC. AWCC# H204175 SEPTEMBER 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Russell_Opal_H204175_20230911.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Russell_Opal_H204175_20230911.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204175 \n \nOPAL M. RUSSELL, EMPLOYEE  CLAIMANT \n \nST. BERNARD HOSPITAL INC., \nEMPLOYER/ INSURANCE CARRIER                                                                        RESPONDENT  \n \nRISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR                                   RESPONDENT  \n \n \n \nOPINION FILED SEPTEMBER 11, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  September  8,  2023 in \nJonesboro, Craighead County, Arkansas. \n \nClaimant was represented by Mr. Jim R. Burton, Attorney at Law, Jonesboro, Arkansas. \n \nThe Respondents were represented by Mr. S. Shane Baker, Attorney at Law, Jonesboro, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  September  8,  2023,  in \nJonesboro, Arkansas.  Claimant, was represented by Mr. Jim R. Burton, Attorney at Law. \nHowever,   Claimant   herself   was   not   present   at   the   hearing.   Respondents   were \nrepresented  at  the  hearing  by  Mr.  S.  Shane  Baker,  Attorney  at  Law,  of  Jonesboro, \nArkansas.      In   addition   to   Respondent’s argument,   the   record   consists   of   the \nCommission’s file which has been incorporated herein in its entirety by reference. \n The evidence reflects that Claimant’s injury occurred on February 8, 2022, where \nshe  purportedly  injured  her  right  knee  picking  up  a  resident  off  the  floor  after  having \nseveral falls back to back. This incident allegedly occurred during the course and scope \nof her employment. Claimant has not contacted her attorney with any updates or statuses \n\nRUSSELL H204175 \n \n \n2 \nconcerning her claim. Claimants expressed his desire to file a motion for withdrawal for \nthe lack of communication. Since filing the Form C on June 8, 2022, this case has been \ninactive  until  Respondents  filed  a  Motion  to  Dismiss  due  to  the  lack  of  prosecution.  A \nhearing  was  held  on  September  8,  2023,  in  Jonesboro,  Arkansas on  the  Motion  to \nDismiss. As previously stated, the Claimant’s attorney appeared but the Claimant herself \ndid not appear for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \n\nRUSSELL H204175 \n \n \n3 \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46 Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice for the Motion to  Dismiss hearing under Rule 13. I further find \nthat Claimant has abridged this rule. Thus, I find Respondent’s Motion to Dismiss should \nbe granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5096,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204175 OPAL M. RUSSELL, EMPLOYEE CLAIMANT ST. BERNARD HOSPITAL INC., EMPLOYER/ INSURANCE CARRIER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 11, 2023 Hearing before Administrative Law Judge Steven Porc...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:4"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T23:02:39.680Z"},{"id":"alj-H200157-2023-09-08","awccNumber":"H200157","decisionDate":"2023-09-08","decisionYear":2023,"opinionType":"alj","claimantName":"Lindsey Crane","employerName":null,"title":"CRANE VS.HOBBY LOBBY STORES INC. AWCC# H200157 SEPTEMBER 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CRANE_LINDSEY_H200157_20230908.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CRANE_LINDSEY_H200157_20230908.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H200157 \n \nLINDSEY CRANE, Employee                                                                                   CLAIMANT \n \nHOBBY LOBBY STORES INC., Employer                                                        RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier                  RESPONDENT \n \n OPINION FILED SEPTEMBER 8, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by KEVIN J. STATEN, Attorney, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On July 26, 2023, the above captioned claim came on for hearing at Fort Smith, Arkansas.  A \npre-hearing conference was conducted on May 18, 2023, and a pre-hearing order was filed on May 26, \n2023.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made a part \nof the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n            2.   The employee/employer/carrier relationship existed on December 13, 2021. \n3.  Claimant  sustained  a  compensable  injury  on  December  13,  2021,  but  respondent  has \ncontroverted additional temporary total disability benefits, and additional medical benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1. Whether claimant is entitled to additional medical benefits and additional temporary total \ndisability benefits. \n 2. Attorney fees. \n\nCrane-H200157 \n2 \n \nAt the prehearing conference, the claimant contended that “She is entitled to temporary partial \ndisability benefits from February 27, 2023, until April 18, 2023, and temporary total disability benefits \nfrom April 18, 2023, until a date yet to be determined. The claimant contends that she exercised her \none  time  right  to  change  physicians  and  that  her  now  authorized  treating  physician,  Dr.  James \nBlankenship,  has  recommended  surgery;  however,  the  respondents  have  refused  to  authorize  that \nsurgery.  Accordingly,  the  claimant  contends  that  she  is  entitled  to  additional  treatment  by  Dr. \nBlankenship,  including  the  recommended  surgery. The  respondents  have  been  requested  to  initiate \npayment  of  temporary  disability  benefits  and  have  refused  to  do  so.  Accordingly,  the  claimant \ncontends  that  any  disability  benefits  not  previously  paid  for  which  the  respondents  do  not  accept \nliability  by  the  date  of  May 18, 2023,  prehearing  conference  have  been  controverted  and  that  the \nclaimant’s attorney is entitled to an appropriate attorney’s fee in regard to such benefits.” \nThe respondents contended that “The claimant reached the end of her healing period when \nreleased  by  neurosurgeon  Dr.  Luke  Knox  with  a  5%  permanent  partial  disability  rating  on  July  20, \n2022.  The  respondents  further  contend  that  since  Dr.  Luke  Knox  opined  that  no  additional \nneurosurgical avenues  would  afford  any  benefit  to  the  claimant’s  complaints,  that  the  surgery \nrecommended by Dr. James Blankenship is not reasonable, necessary, and related to her compensable \ninjury of December 13, 2021. Also, since she has reached the end of the healing period, she is not \nentitled to any additional temporary total disability.”  \nHowever, there was another issue raised by respondents prior to the prehearing conference.  \nA  motion  for  an  independent  medical  examination  (IME)  was  filed  on  April  7,  2023.    Claimant \nobjected to the physician suggested by respondents in that motion.   During the prehearing conference, \nthe attorneys agreed that Dr. Scott Schlesinger would be acceptable to each party to perform the IME; \nbecause of that agreement, that issue was removed from the list of matters to be considered at the \n\nCrane-H200157 \n3 \n \nhearing.  Unfortunately, Dr. Schlesinger failed to cooperate with respondents in scheduling the IME, \nand on July 14, 2023, respondents renewed their request for an IME to be conducted.  Rather than \ncontinue the case, the motion for an IME as well as the issues outlined in the prehearing order were \nheard on July 26, 2023\n From a review of the entire record, including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1. The Arkansas Workers' Compensation Commission has jurisdiction over this claim. \n2. The stipulations agreed to by the parties at a pre-hearing conference conducted on May 18, \n2023, and contained in a pre-hearing order filed on May 26, 2023 are hereby accepted as fact.   \n3.  Respondents have failed to prove that an IME is both reasonable and necessary in order \nto make a judgment about this claim, and that motion is therefore denied.  \n4. Claimant has met her burden of proof by a preponderance of evidence that she is entitled \nto  temporary  total  disability  benefits  beginning  April  18,  2023,  and  continuing  to  a  date  to  be \ndetermined. \n 5. Claimant has met her burden of proof by a preponderance of the evidence that she is entitled \nto additional medical benefits as directed by Dr. James Blankenship for her lumbar back injury. \n6.    Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \ntemporary partial disability benefits from February 27, 2023, until April 18, 2023. \n7.  Respondent has controverted claimant's entitlement to all indemnity benefits from April \n18, 2023, to a date to be determined.  \n\nCrane-H200157 \n4 \n \n \n \n FACTUAL BACKGROUND \n As set forth above, the hearing on the motion by respondents for an IME and the claimant’s \ncase in chief were combined.  The parties understood that if I determined that an IME was reasonable \nand  necessary,  no  decision  would  be  rendered  on  the  other  issues  presented.    If  I  decided  that  the \nIME was not reasonable and necessary, then a decision on those issues would be rendered.  \n To make the record complete, the following documents are blue backed to the record:  \n1. April 7, 2023: Respondents’ Motion for an Independent Medical Examination \n2. April 20, 2023: Claimant’s Response to said Motion. \n3. April 21, 2023: Respondent’s Reply. \n4. April 21, 2023: Email from the Court to the parties.  \n5. July 14, 2023: Letter from Mr. Staten on behalf of respondents \n6. July 18, 2023: Email from the Court to the parties.\n1\n \n \nHEARING TESTIMONY \n \n Paul Crane, claimant’s father, testified that claimant was athletic  before  her  injury,  and  had \nplayed as many as four sports while in high school.  Since the injury and after claimant was released \nto return to work, he observed that she was limited in her ability to sit, stand, walk, lie down, and pick \nup things.  He was unaware that Dr. Knox told claimant to return to see him if she had difficulty after \nhe released her from his care. \n Because this was accepted as a compensable injury, a detailed discussion of how claimant was \ninjured is not necessary; she said she was unloading a delivery truck when she hurt her back. Claimant \nwas treated by Michael Valentine, PA-C, in Dr. Knox’s office before she saw Dr. Knox. She testified \nthat after she was released from Dr. Knox’s care, she attempted to return to work, but could not do \nher previous job and was working only 12 hours a week in a different position with Hobby Lobby.   \nhe did not know Dr. Knox was willing to see her again after he released her.  Dr. Blankenship took \n \n1\n Mr. Walker’s letter of July 17, 2023, was admitted as part of his non-medical exhibits.  \n\nCrane-H200157 \n5 \n \n \nher  off  work  on  April  18,  2023.    Activities  such  as  grocery  shopping,  riding  in  a  car  and  menial \nhousework caused claimant pain.  She felt like she is in the same or worse condition as when she last \nsaw Dr. Knox.   \n On  cross-examination,  claimant  said  she  did  not  know  that  the  results  of  her  Functional \nCapacity Evaluation  were  unreliable.   Claimant stated  that  Hobby  Lobby  tried  to  work with  her  to \ngive her jobs she could physically perform.  \nREVIEW OF THE EXHIBITS \n \nA. Medical exhibits. \n \nAfter seeing some nurse practitioners and PA-C Valentine, claimant was then treated by Dr. \nLuke Knox.  His record of July 20, 2022, summarized what treatment he offered to claimant while \nunder his care: physical therapy, an MRI, and a lumbar epidural injection.  The MRI was performed \non March 24, 2022, and showed “multilevel facet arthropathy which is considered to be mild at each \nlevel.  There is a midline bulging disc at L4-L5 with disc degeneration showing an annular tear.  No \nsignificant foraminal stenosis noted.” Dr.  Knox  then  made  a  referral  for  a  Functional  Capacity \nEvaluation on May 22, 2022; when he got the results, his record stated: “close case unreliable results \non FCE.”  In the clinic note of July 20, 2022, Dr. Knox concluded by saying “Unfortunately, I do not \nbelieve any neurosurgical avenues would afford any benefit to her complaints,” and he would follow \nher on a p.r.n. basis.   \nClaimant  began  seeing  Dr.  Blankenship  on  February  27,  2023.    His  impression  was  that \nclaimant:   \n“has a posterior disc herniation and annular fissure at L4-L5. Of greater importance \nshe has marked hypersplaying of the posterior disc space in flexion which is grossly \nabnormal for somebody as young as she is.  I told her there is no doubt the disruption \nof her annulus and the posterior disc herniation have led to significant instability at the \nL4-L5 level.”  \n \n\nCrane-H200157 \n6 \n \n \nDr. Blankenship was also concerned about claimant’s elevated blood pressure, which he attributed \nto being in pain for over a year. In recommending surgery, Dr. Blankenship recorded the following:  \n “The medical rationale for the procedure I have offered is: \n  1. She has failed routine and usual conservative measures with two different \n  rounds of physical therapy with people I know. She has had a LESI. None \n  of these things afforded her any relief and she is getting worse. \n                2. Despite the fact that she has 36 out of 50 consistency measures, I feel very \n comfortable  in  the  fact  that  this  patient  wants  to  get  better.  I  think  the \n inconsistencies had to do with fear avoidance because she has been hurting                                  \n as long as she has. \n  3. The rationale for what I have offered her surgically has more to do with \n  that  she  has  gross  annular  fissuring  at  L4-L5.  She  has  a  posterior  disc \n  protrusion but more importantly she has marked movement of the disk space \n  in  flexion  and  extension  with  collapse  anteriorly  and  marked  splaying \n  posteriorly  in  flexion,  completely  abnormal  for  a  patient  her  age.  I  would \n  recommend a lateral approach since her iliac crest is low enough with a lateral \n  interbody arthrodesis at l4-l5 and then posterior BridgePoint clamping with \n  facet disruption and posterolateral arthrodesis.”  \n \nOn  April  18,  2023,  Dr.  Blankenship  took  claimant  off  work  until  after  she  had  the \nrecommended  surgery.\n2\n    He  ordered  another  MRI  prior  to  surgery  to  ensure  nothing  had  changed \nsince  the  one  done  in  2022.    Claimant  was  seen  again  on  May  8,  2023,  and  Dr.  Blankenship  was \nawaiting authorization from the workers’ compensation carrier to operate on claimant.  \n B:  Non-Medical Exhibits \n Claimant submitted  her June 15, 2023, Request for Accommodation in which she specified \nwhat tasks she could not perform.  She also provided the letter her attorney sent to  this Court and \nrespondent’s counsel on July 18, 2023, in which she objected to this matter being continued  for an \nIME, which included three requests for mileage reimbursement and two inquiries about the status of \nthe IME.    \n Respondent submitted a Record of Communication with Dr. Schlesinger that documented the \n \n2\n There was no medical record submitted for an office visit of April 18, 2023.   \n\nCrane-H200157 \n7 \n \n \nattempts to get the IME scheduled, and the FCE that was done on June 8, 2022.  As mentioned by \nDr. Blankenship, the examiner at the FCE said claimant provided an unreliable effort, with 36 of 50 \nconsistency measures within the expected limits. The conclusion of the FCE was that claimant could \nwork in at least the light classification, but because the examiner deemed that she gave an unreliable \neffort, her actual capability could be higher than the light classification. \nADJUDICATION \n \nAs  reflected  in  my  email  of  July  18,  2023,  I  determined  not  to  grant  a  continuance  of  the \nhearing on the merits but would first hear arguments for and against the IME, and then claimant could \npresent her case as outlined in the prehearing order.  After the parties argued the motion for an IME, \nI announced that the evidence presented in claimant’s case in chief would be considered in ruling on \nthat motion. If I found the IME was reasonable and necessary, the case would be held in suspense \nuntil the results of the IME were made available to the parties; if I found the IME was not reasonable \nand necessary, I would deny the motion and issue an Opinion on the evidence presented.  \nTherefore, the first question for me to decide is whether an independent medical examination \nis reasonable and necessary in this matter?  \n           Arkansas Code Annotated section 11-9-511(a) provides, in relevant part: \nAn injured employee claiming to be entitled to compensation shall submit to \nsuch  physical  examination  and  treatment  by  another  qualified  physician, \ndesignated  or  approved  by  the  Workers'  Compensation  Commission,  as  the \nCommission may require from time to time if reasonable and necessary. The \nthreshold  question  is  whether  the  examination  is  reasonable  and  necessary. \n(Emphasis Added) \n \n Rule 30 (1) of the Arkansas Workers’ Compensation Commission provides:  \n \nAn independent medical examination shall include a study of previous history \nand  Medical  Care  information,  diagnostic  studies,  diagnostic  x-rays,  and \nlaboratory studies, as well as an examination and evaluation. This service may \nbe necessary in order to make a judgment regarding the current status of the \ninjured  or  ill  worker,  or  to  determine  the  need  for  further  health  care. \n\nCrane-H200157 \n8 \n \n \n(Emphasis added.)  \n \nIn  reviewing  the  medical  records,  I  do  not  agree  with  respondent’s  characterization  of  the \nopinions of Dr. Knox and Dr. Blankenship as being “radically different.” Those doctors arrived at the \nsame conclusion—claimant has an annular fissure at L4-L5. Dr. Knox concluded no more treatment \nwas required while Dr. Blankenship recommends surgery is necessary for claimant’s condition.  \nAs  emphasized  above,  the  standard  is  whether  an IME  is  reasonable  and  necessary,  or  if  it \nwould be necessary to make a judgment in a case about a claimant’s current status.  I find respondents \nmet neither criterion.  \nA.  Is it reasonable to order an IME?  \nI have reviewed the pleadings and correspondence in this matter and note that claimant was \nwilling to cooperate and allow an independent medical evaluation so long as it was performed by a \nneurosurgeon. However, that was in April 2023.  Respondents have not restarted claimant’s temporary \ntotal disability (TTD) payments despite her authorized physician, Dr. Blankenship, removing her from \nwork.  When Dr. Schlesinger did not cooperate in getting the IME scheduled before the hearing of \nthis matter, claimant’s objection was that respondent was not diligent in alerting this Court that there \nwas an issue with Dr. Schlesinger and that delaying the matter was creating a hardship for her.   I agree \nwith  claimant  on  this  point.    Respondents  did  not  cause  the  delay  in  getting  the  IME  scheduled;  I \naccept as accurate respondents’ exhibit showing how frequently Dr. Schlesinger was contacted about \nscheduling the IME.   Still, I cannot find it reasonable to delay this matter longer for an IME when \nclaimant is not receiving TTD, especially since I do not believe the IME to be necessary for a decision \nto be reached in this matter.  \nB.  Is it necessary to order an IME? \n While  it  is  true  that  Drs.  Knox  and  Blankenship  have  recommended  a  different  course  of \n\nCrane-H200157 \n9 \n \n \ntreatment, it is obvious from the records of Dr. Blankenship, as well as the testimony of claimant and \nher father, that the conservative course of treatment provided by Dr. Knox did not solve her issues.  \nA conflict in the opinions of the doctors is no reason in and of itself to order a “tiebreaker” IME.  \nThe  Commission  has  authority  to  accept  or  reject  medical  opinion  and  to  determine  its  medical \nsoundness  and  probative  force. Oak  Grove  Lumber  Co.  v.  Highfill,  62  Ark.  App.  42,  968  S.W.2d  637 \n(1998).  I agree with Dr. Blankenship’s assessment that the inconsistent result on the FCE was due to \ncaution  by  claimant  during  the  evaluation.    It  appears  that  Dr.  Knox  discharged  her  based  on  the \ndetermination that she didn’t give her best effort (“close case unreliable results on FCE”),  without \ntaking into consideration that claimant was self-limiting because of the problem in her back.   \n Therefore, because I don’t believe an additional delay would be reasonable and because the \nopinions of the doctors are not different on the cause of claimant’s problem, it is not necessary that \nan IME be performed; conservative care did not work, and Dr. Blankenship is offering an option that \ncould bring claimant some relief.   Respondents’ Motion for an IME is denied.  \n Turning now to the issues raised in the prehearing order, claimant has requested  additional \nmedical benefits as recommended by Dr. Blankenship, TTD, and temporary partial disability (TPD) \nbenefits as well as an attorney’s fee.   I will address these separately. \n A:  Is claimant entitled to additional medical benefits?  \n      The parties stipulated, and I accept as fact, that claimant sustained a compensable injury on \nDecember 13, 2021. On this point, then, the question is whether claimant proved by a preponderance \nof  the  evidence  entitlement  to  the  medical  treatment  recommended  by  Dr.  Blankenship  for  that \ncompensable  injury, Johnson  Controls,  Inc.  v.  Miller,  2023  Ark.App.  235.  I  find  that  she  has  done so. \nAlthough a claimant's testimony is never viewed as uncontroverted, the Commission need not reject \nthe claimant's testimony if it finds that testimony worthy of belief. Ringier America v. Combs, 41 Ark. \n\nCrane-H200157 \n10 \n \n \nApp. 47, 849 S.W.2d 1 (1993). Having had the benefit of seeing claimant testify, I found  her to be \ncredible that her back continues to hurt despite all the conservative treatment she had received up to \nthe date of the hearing.  Even considering the natural bias that I would expect a father to have for his \ndaughter, I found the testimony of Paul Crane to be credible on the issues to which he spoke.   For \nthese reasons, as well as those expressed in denying the motion for an IME, I find claimant has met \nher  burden  of  proof  that  additional  medical  treatment  as  recommended  by  Dr.  Blankenship  is \nwarranted.  \n B:   Is claimant entitled to TPD benefits from February 27, 2023, until April 18, 2023? \n An award of temporary partial-disability benefits is appropriate during the healing period in \nwhich an employee suffers a partial incapacity to earn wages. Amaya v. Newberry's 3N Mill, 102 Ark. \nApp. 119, 282 S.W.3d 269 (2008). The claimant has the burden of showing by a preponderance of the \nevidence that she remains in the healing period. Hickman v. Kellogg, Brown & Root, 372 Ark. 501, 277 \nS.W.3d 591 (2008). \n Claimant  was  released  to  perform  light  duty  work  by  Dr.  Knox  on  July  20,  2022,  but  her \nemployer  did  not  have  full  time  light  duty work  for  her.  From  the  first  time  Dr.  Blankenship saw \nclaimant on February 27, 2023, he did not believe she was out of her healing period.  Unfortunately, \nhis record of that date did not specifically address claimant’s ability to earn wages; claimant has not \nattempted to work at other employment that were within the light classification placed upon her by \nDr. Knox.  While it may have been an oversight on the part of Dr. Blankenship, I cannot speculate \non what he intended before he clearly stated that claimant was to be off work completely, and therefore \nclaimant has failed to prove she is entitled to TPD benefits from February 27 until April 18, 2023. \nC. Is claimant entitled to TTD benefits from April 18, 2023, until a date to be determined?  \n To  be  entitled  to  TTD  benefits  for  an  unscheduled  injury,  a  claimant  must  prove  by  a \n\nCrane-H200157 \n11 \n \n \npreponderance of the evidence that she remains within her healing period and suffers a total incapacity \nto earn wages. Allen Canning Co. v. Woodruff, 92 Ark. App. 237, 212 S.W.3d 25 (2005).  On   April   18, \n2023, and again on May 8, 2023, Dr. Blankenship clearly removed claimant from all work activities.  \nThe evidence in this case amply supports that claimant is either again in a healing period or perhaps \nwas never out of one. Therefore, claimant has met her burden of proof that she is entitled to TTD \nbenefits from April 18, 2023, until a date to be determined.  \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $448.95. \n IT IS SO ORDERED. \n \n \n                                                                                              \n_______     \n JOSEPH C. SELF \n ADMINISTRATIVE LAW JUDGE","textLength":22796,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H200157 LINDSEY CRANE, Employee CLAIMANT HOBBY LOBBY STORES INC., Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier RESPONDENT OPINION FILED SEPTEMBER 8, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastia...","outcome":"granted","outcomeKeywords":["granted:6","denied:1"],"injuryKeywords":["lumbar","back"],"fetchedAt":"2026-05-19T23:02:37.618Z"},{"id":"alj-G904164-2023-09-07","awccNumber":"G904164","decisionDate":"2023-09-07","decisionYear":2023,"opinionType":"alj","claimantName":"Richmond Boyce","employerName":null,"title":"BOYCE VS.CITY OF LITTLE ROCK AWCC# G904164 SEPTEMBER 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BOYCE_RICHMOND_G904164_20230907.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOYCE_RICHMOND_G904164_20230907.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G904164 \n \nRICHMOND C. BOYCE, EMPLOYEE          CLAIMANT \n \nCITY OF LITTLE ROCK, EMPLOYER           RESPONDENT \n \nCITY OF LITTLE ROCK/RISK MANAGEMENT RESOURCES,  \nCARRIER/TPA                                    RESPONDENT \n \n \nOPINION FILED 7 SEPTEMBER 2023 \n \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on Wednesday, 6 September 2023. \n \nClaimant Richmond C. Boyce, pro se, did not appear. \n \nMs. Melissa Wood, Attorney-at-Law, of Little Rock, Arkansas, appeared on behalf \nof respondents. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above-styled matter on 6 September 2023, in Little Rock, \nArkansas,  on  respondents’ Motion  to  Dismiss.   This  claim  involves  an  alleged  workplace \ninjury occurring on 4 April 2019.  \n A  Form AR-C  was  filed  with  the  Commission  on  17  June  2019.    A  First  Report  of \nInjury was dated 8 April 2019 and it was filed, along with a Form 2, accepting a medical-only \nclaim for a right shoulder injury, on 3 July 2019.  The Medical Cost Containment Division \nentered a Change of Physician Order on 21 November 2019. \nThe  record  reflects  no  correspondence  or  action  thereafter  prior  to  the  respondents \nmoving for  a  dismissal of  this matter  for want  of prosecution.    That Motion was filed on  6 \nJuly 2023, and appropriate notice was sent accordingly.  The file, which was incorporated by \nreference at the hearing, reflects  a call received by the Legal Advisors Division on 14 July \n\n BOYCE- G904164 \n2 \n \n2023  during which the claimant  relayed  that no  additional  relief  was  being  sought  in  this \nmatter.  He did not lodge any formal objection to the dismissal or appear at the hearing.  \n Based  on  the  record,  available  evidence,  and  argument  of  counsel,  I  am  inclined  to \nfind  that  the  Motion  to  Dismiss  should  be  granted  and  the  matter  should  be  dismissed \nwithout prejudice.  \nORDER \n Pursuant to the above, I find that the Motion to Dismiss should be granted and this \nmatter should be dismissed without prejudice at this time.   \nSO ORDERED. \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2279,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G904164 RICHMOND C. BOYCE, EMPLOYEE CLAIMANT CITY OF LITTLE ROCK, EMPLOYER RESPONDENT CITY OF LITTLE ROCK/RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED 7 SEPTEMBER 2023 Hearing before Administrative Law Judge JayO. Howe in Little Rock, Pul...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:02:31.265Z"},{"id":"alj-H300002-2023-09-07","awccNumber":"H300002","decisionDate":"2023-09-07","decisionYear":2023,"opinionType":"alj","claimantName":"Christopher Edmond","employerName":null,"title":"EDMOND VS.TYSON POULTRY, INC. AWCC# H300002 SEPTEMBER 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/EDMOND_CHRISTOPHER_H300002_20230907.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EDMOND_CHRISTOPHER_H300002_20230907.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H300002 \n \nCHRISTOPHER EDMOND, EMPLOYEE        CLAIMANT \n \nTYSON POULTRY, INC. EMPLOYER                 RESPONDENT  \n \nTYSON POULTRY/TYNET CORP., CARRIER/TPA                    RESPONDENTS \n \n \nOPINION FILED 7 SEPTEMBER 2023 \n \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on 6 September 2023. \n \nClaimant Christopher Edmond, pro se, failed to appear. \n \nMr.  Jeremy  Swearingen,  Attorney-at-Law,  of  Little  Rock,  Arkansas,  appeared  on \nbehalf of the respondents. \n \nSTATEMENT OF THE CASE \n A hearing was held in the above-styled matter on 6 September 2023, in Little Rock, \nArkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode Annotated § 11-9-702 and/or Rule 099.13 of the Arkansas Workers’ Compensation Act.  \nThe claim involves an alleged workplace injury occurring on or about 23 November 2022. A \nForm AR-C was filed on the claimant’s behalf by Laura Beth York of Rainwater Holt & Sexton \non 28 December 2022. The respondents filed their Form AR-2 on 2 January 2023, accepting \na compensable medical-only back injury claim. \n On  21  April  2023  Ms.  York  requested  that  she  be  allowed  to  withdraw  her \nrepresentation of the claimant.  By way of an Order dated 2 May 2023, the Full Commission \ngranted  that  request.    The  respondents  moved  for  dismissal  for  want  of  prosecution  on 29 \nJune  2023,  stating  that  no  benefits  were  in  dispute  and  that  the  claimant  had  made  no \n\nEdmond- H300002 \n2 \n \nrequest  for  a  hearing  on  that  or  any  other  issue.  The  Commission  provided  notice  of  that \nmotion and an opportunity to respond to the claimant by way of a 12 July 2023 letter. \nThe claimant did not respond to the respondents’ motion or the Commission’s letter \nto lodge an objection to the dismissal, and he failed to appear before the Commission for the \nhearing scheduled on the respondents’ motion. \n Based on the record, argument by counsel, and evidence before me, I am compelled to \nfind that the Motion to Dismiss should be granted due to the claimant’s lack of prosecution \nand the matter should be dismissed without prejudice.  \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice at this time.   \nSO ORDERED. \n \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2553,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300002 CHRISTOPHER EDMOND, EMPLOYEE CLAIMANT TYSON POULTRY, INC. EMPLOYER RESPONDENT TYSON POULTRY/TYNET CORP., CARRIER/TPA RESPONDENTS OPINION FILED 7 SEPTEMBER 2023 Hearing before Administrative Law Judge JayO. Howe in Little Rock, Pulaski County, Arkans...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:02:33.406Z"},{"id":"alj-H202787-2023-09-07","awccNumber":"H202787","decisionDate":"2023-09-07","decisionYear":2023,"opinionType":"alj","claimantName":"Michael Stroud","employerName":null,"title":"STROUD VS.LITTLE ROCK WATER RESTORATION AUTHORITY AWCC# H202787 NUNC PRO TUNC FILED SEPTEMBER 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/STROUD_MICHAEL_H202787_20230907.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STROUD_MICHAEL_H202787_20230907.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H202787 \n \nMICHAEL STROUD, EMPLOYEE                                                              CLAIMANT \nLITTLE ROCK WATER RESTORATION AUTHORITY,                                           \nEMPLOYER                                                                                                        RESPONDENT \nARKANSAS SCHOOL BOARDS’ ASS’N                                                                          \nWORKERS’ COMPENSATION TRUST,                                                                                                            \nSELF-INSURED, CARRIER/TPA                                                                    RESPONDENT \n \n \nNUNC PRO TUNC ORDER FILED SEPTEMBER 7, 2023 \n \n I  find  a  clerical  error(s)  exist(s)  in  the  Opinion  and  Order  Filed  August  21,  2023,  in  the \nabove-styled claim. On Page 3, Paragraph 2, Line 3, under the heading, “STATEMENT OF THE \nCASE”  (and  possibly  elsewhere)  of  the  Opinion  and  Order  Filed  August  21,  2023,  I  wrote  the \nclaimant testified he had received, “...a dishonorable discharge after his second stint of service for \nbeing absent without leave (AWOL).” The term “dishonorable discharge” is incorrect, and shall \nbe corrected to the term, “other-than-honorable discharge.” Therefore, the aforementioned phrase \nshould properly read, “...an other-than-honorable  discharge  after  his  second  stint  of  service  for \nbeing absent without leave (AWOL).” \n Ark. Code Ann. §11-9-713(d) (2020 Lexis Replacement) authorizes me to correct clerical \nerrors in such circumstances. This is a proper case for the exercise of that authority. Therefore, the \nOpinion  and  Order  Filed  August  21,  2023,  hereby  is  modified  and  amended only  to  correct  the \naforementioned inadvertent clerical error on Page 3, Paragraph 2, Line 3, and anywhere else it may \nappear in the Opinion and Order Filed August 21, 2023.  \n\nMichael Stroud, AWCC No. H202787 \n \n           In  all  other  respects – including  but  not  limited  to  the  “FINDINGS  OF  FACT  AND \nCONCLUSIONS  OF  LAW” section –  the  Opinion  and  Order  filed  October  August  21,  2023, \nshall remain the same and shall not otherwise be altered, amended, or affected in any way. \n IT IS SO ORDERED.  \n                   ______________________________________ \n                                                                                Mike Pickens \n                                                                                Administrative Law Judge \n                                                                                Entered Nunc Pro Tunc: September 7, 2023","textLength":2707,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202787 MICHAEL STROUD, EMPLOYEE CLAIMANT LITTLE ROCK WATER RESTORATION AUTHORITY, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS’ ASS’N WORKERS’ COMPENSATION TRUST, SELF-INSURED, CARRIER/TPA RESPONDENT NUNC PRO TUNC ORDER FILED SEPTEMBER 7, 2023 I find a cleri...","outcome":"modified","outcomeKeywords":["modified:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:02:35.544Z"},{"id":"full_commission-H206756-2023-09-06","awccNumber":"H206756","decisionDate":"2023-09-06","decisionYear":2023,"opinionType":"full_commission","claimantName":"Jeremy Grigg","employerName":"Intergrated Stair Systems D/b/a Complete Access","title":"GRIGG VS. INTERGRATED STAIR SYSTEMS d/b/a COMPLETE ACCESS AWCC# H206756 SEPTEMBER 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Grigg_Jeremy_H206756_20230906.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Grigg_Jeremy_H206756_20230906.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.114Z"},{"id":"full_commission-G903696-2023-09-06","awccNumber":"G903696","decisionDate":"2023-09-06","decisionYear":2023,"opinionType":"full_commission","claimantName":"Donna Hassell","employerName":"Wal-Mart Associates, Inc","title":"HASSELL VS. WAL-MART ASSOCIATES, INC. AWCC# G903696 SEPTEMBER 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Hassell_Donna_G903696_20230906.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Hassell_Donna_G903696_20230906.pdf","fullText":"","textLength":0,"preview":"","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.115Z"},{"id":"alj-H109437-2023-09-06","awccNumber":"H109437","decisionDate":"2023-09-06","decisionYear":2023,"opinionType":"alj","claimantName":"Lisa Pozner","employerName":"University Of Arkansas For Medical Science,","title":"PONZER VS. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCE, AWCC# H109437 SEPTEMBER 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Pozner_Lisa_H109437_20230906.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Pozner_Lisa_H109437_20230906.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109437 \n \nLISA POZNER, EMPLOYEE CLAIMANT \n \nUNIVERSITY OF ARKANSAS FOR \nMEDICAL SCIENCE, EMPLOYER RESPONDENT \n \nSTATE OF ARKANSAS,  \nCARRIER                                                                                                  RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nTHIRD PARTY ADMINISTRATOR                                                           RESPONDENT \n \nOPINION FILED SEPTEMBER 6, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  August  22,  2023,  in  Little \nRock, Arkansas. \n \nClaimant  is  represented  by  Mr.  Mark  Alan  Peoples,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nRespondents are represented by Mr. Charles H. McLemore, Attorney at Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held on this claim on August 22, 2023.  Claimant was represented \nby Mr. Mark Alan Peoples, Attorney at Law of Little Rock, Arkansas; Respondents were \nrepresented by Mr. Charles H. McLemore, Attorney at Law of Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n \n2. An employer/employee relationship existed on  September 9, 2021, \nwhen  Claimant  sustained  a  compensable  acute  L1  spinal  fracture \ninjury. \n \n\nPOZNER H109437 \n \n2 \n \n3. Respondents accepted this claim as compensable and paid medical \nbenefits and permanent partial disability (PPD) based on 7% whole \nbody impairment. \n \n4. The  parties  will  stipulate  to  Claimant’s  average  weekly  wage  and \ncompensation rates on or before the hearing date. \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether the Claimant is entitled to permanent total disability benefits (PTD). \n \n2.  Alternatively,  whether  Claimant  is  entitled  to  additional  permanent  partial \ndisability (PPD) based on wage loss in an amount to be determined. \n \n3. Attorney’s fees with respect to controverted indemnity benefits.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s  and  Respondents’  contentions  are  set  out  in  their  responses  to  the \nPrehearing Questionnaire.  Said contentions are hereby incorporated by reference.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \nClaimant and Respondents’ post hearing briefs that are blue-backed and made a part of \nthis  record  and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity  to  hear  the  testimony  of  the  Claimant,  the  sole  witness,  and  observe  her \ndemeanor,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1.  The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n\nPOZNER H109437 \n \n3 \n \n3.  The Claimant is not entitled to permanent total disability benefits but is entitled \nto  wage-loss  disability  in  the  amount  of 35%  in addition  to  Claimant’s  7% \npermanent anatomical impairment. \n \n4.  Claimant is entitled to controverted attorney fees. \nCASE IN CHIEF \nSummary of Evidence \n The Claimant was the sole witness during the hearing. In addition to admitting the \nCommission’s   file   by   reference,   I also   admitted   into   evidence Claimant’s and \nRespondent’s exhibits  that  were  properly  admitted  before  the  Commission.  Claimant \nsuffered a compensable back injury, during the course and scope of her employment with \nthe University of Arkansas for Medical Sciences (“UAMS”), as a Nurse Practitioner, when \nshe hyper-extended  her  back  when  she  jerked  backwards  after  accidentally  pricking \nherself  with  a  used  needle  from  an  HIV  infected  patient.  Claimant  sustained an  acute \ncompression fracture to her L-1 spine. The Claimant underwent Kyphoplasty, a medical \nprocedure, that was performed by Dr. Jarna Shah, on November 2, 2021, that resulted in \ntwo  additional  fractures  to  her  spine  located  at  T-12  and  L-2.  Dr.  Michael  Cassatt,  the \nworkers’ compensation medical provider, ordered that procedure. Claimant did not have \nOsteoporosis when these fractures occurred. \nThe Claimant was prescribed a back brace, Tramadol and Flexeril. Claimant stated \nduring the hearing that her back pain has been so debilitating that it has prevented her \nfrom gaining meaningful employment. Claimants back pain even resulted in the ultimate \nloss of her job with UAMS where she was placed on restricted duty. Since then, Claimant \nhas  been  seeking  other  meaningful  employment  but  due  to  her  high level  of  pain \nwhenever  she  sits  or  stands  for  any  appreciable  time  the  search  has  been  difficult. \n\nPOZNER H109437 \n \n4 \n \nClaimant was offered one job opportunity that she declined due to the amount of sitting \nthe job required.  \nAdjudication \nA.  Whether Claimant is entitled to permanent total disability benefits (PTD). \n As the parties stipulated and the record reflects, the work incident of September 9, \n2021, resulted in a compensable injury to Claimant’s back.  This injury is an unscheduled \none.  Cf. Ark. Code Ann. § 11-9-521 (Repl. 2012).  The term “permanent total disability” \nis  defined  in  the  statute  as  “inability,  because  of  compensable  injury  or  occupational \ndisease, to earn any meaningful wages in the same or other employment.”  Ark. Code \nAnn. § 11-9-519(e)(1) (Repl. 2012). \n Claimant’s  entitlement  to  wage  loss  disability  benefits  is  controlled  by  §  11-9-\n522(b)(1) (Repl. 2012), which states: \nIn considering claims for permanent partial disability benefits in excess of \nthe employee’s percentage of permanent physical impairment, the Workers’ \nCompensation  Commission  may  take  into  account,  in  addition  to  the \npercentage   of   permanent   physical   impairment,   such   factors   as   the \nemployee’s age, education, work experience, and other matters reasonably \nexpected to affect his or her future earning capacity. \n \nSee  Curry  v.  Franklin  Elec.,  32  Ark.  App.  168,  798  S.W.2d  130  (1990).    Such  “other \nmatters” include motivation, post-injury income, credibility, demeanor, and a multitude of \nother factors.  Id.; Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961).  As the Arkansas \nCourt of Appeals noted in Hixon v. Baptist Health, 2010 Ark. App. 413, 375 S.W.3d 690, \n“there is no exact formula for determining wage loss . . . .”  Pursuant to § 11-9-522(b)(1), \nwhen  a  claimant  has  been  assigned  an  impairment  rating  to  the  body  as  a  whole,  the \nCommission  possesses  the  authority  to  increase  the  rating,  and  it  can  find  a  claimant \n\nPOZNER H109437 \n \n5 \n \ntotally  and  permanently  disabled  based  upon  wage-loss  factors.   Cross  v.  Crawford \nCounty Memorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). \n To  be  entitled  to  any wage-loss disability  in excess of  an  impairment  rating,  the \nclaimant must prove by a preponderance of the evidence that he sustained permanent \nphysical impairment as a result of a compensable injury.  Wal-Mart Stores, Inc. v. Connell, \n340  Ark.  475,  10  S.W.3d  727  (2000).    The  standard  “preponderance  of  the evidence” \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415 (citing Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 \nS.W.2d 442 (1947)).  The wage loss factor is the extent to which a compensable injury \nhas affected the claimant’s ability to earn a livelihood.  Emerson Elec. v. Gaston, 75 Ark. \nApp.  232,  58  S.W.3d  848  (2001).    In considering  factors  that  may  impact  a  claimant’s \nfuture  earning  capacity,  the  Commission  considers  her  motivation  to  return  to  work, \nbecause a lack of interest or a negative attitude impedes the assessment of her loss of \nearning capacity.  Id.  The Commission may use its own superior knowledge of industrial \ndemands,  limitations,  and  requirements  in  conjunction  with  the  evidence to  determine \nwage-loss disability.  Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d \n276 (1982).  Finally, Ark. Code Ann. § 11-9-102(4)(F)(ii) (Repl. 2012) provides: \n(a) Permanent benefits shall be awarded only upon a determination that the \ncompensable injury was the major cause of the disability or impairment. \n \n(b)  If  any  compensable  injury  combines  with  a  preexisting  disease  or \ncondition or the natural process of aging to cause or prolong disability or a \nneed  for  treatment,  permanent  benefits  shall  be  payable  for  the  resultant \ncondition only if the compensable injury is the major cause of the permanent \ndisability or need for treatment. \n \n“Major cause” is more than fifty percent (50%) of the cause and has to be established by \na  preponderance of  the  evidence.    Ark.  Code  Ann.  §  11-9-102(14)  (Repl.  2012).  \n\nPOZNER H109437 \n \n6 \n \n“Disability” is the “incapacity because of compensable injury to earn, in the same or any \nother  employment,  the  wages  which  the  employee  was  receiving  at  the  time  of  the \ncompensable injury.”  Id. § 11-9-102(8). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., 72 \nArk.  App.  309,  37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness but may accept and translate \ninto findings of fact only those portions of the testimony that it deems worthy of belief.  Id.  \nClaimant  has  suffered a compensable  injury,  by  specific  incident,  to  her  back  on \nSeptember  9,  2021,  when  she  hyper  extended  her  back  as  a  result  from  being \naccidentally pricked by a needle from an HIV infected patient. The injury occurred during \nthe course and scope of her employment with Respondents. The essential issue in this \nmatter  is  whether the  Claimant  is  entitled  to  only  the  7%  impairment  rating  or  benefits \nbeyond the impairment rating.  \nThe  Claimant  is  64  years  old  with  a bachelor’s  degree  in  english,  psychology, \nsocial work, and nursing. The Claimant also has a master’s in counseling psychology and \nnursing. The Claimant is a licensed nurse practitioner. Claimant has worked as a distress \ncounselor, registered nurse and nurse practitioner. Claimant is having difficulty sitting or \nstanding  for  any  reasonable  period  which  was  evident  with  her  constant  standing  and \nsitting  during  her  testimony. I  don’t  believe  this  was  staged  behavior. Claimant  has \nprofessed a strong desire to continue working. The Claimant has manifested this desire \nby maintaining  her  nurse  practitioner’s  license  from her  home  -  online  computer \n\nPOZNER H109437 \n \n7 \n \nrecertification courses - while lying in bed due to severe back pain. Claimant has applied \nfor multiple jobs and was offered full-time work but declined due to the long-term sitting \nrequirement.  Though  her  application  for  jobs  appears  to  be  an  act  of  futility,  given  her \nstruggles with intense pain from sitting or standing too long, she testifies that she applies \nfor these jobs in the event she feels better and can accept a suitable position. She admits \nthere  currently  are  no  jobs  that  she  can  take  due  to  her  intense  pain  from  her \ncompensable work injury. I do agree that intense back pain can create great difficulties \nfor finding suitable employment. Thus, I find the Claimant’s testimony credible. I further \nfind the Claimant can obtain suitable part-time work with her credentials. \nNevertheless,  no credible  evidence  has  been  presented  to  me  justifying  an \nincrease in the 7%  anatomical  impairment rating. Thus, I find by the preponderance of \nthe  evidence  that  Claimant  did  not  prove  she  was  permanently  and  totally disabled. \nHowever,  I  do  find by  the  preponderance  of  the  evidence  that  Claimant  proved  she \nsustained  wage-loss  disability  in  the  amount  of 35%  in  addition  to  the  Claimant’s  7% \nanatomical  impairment.  I  further  find  by  the  preponderance  of  the  evidence  that \nClaimant’s September 9, 2021, compensable work injury was the major cause of her 7% \nanatomical impairment and 35% wage-loss disability.  \nATTORNEY FEES \nOne of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, \n745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat a claim has been controverted, in whole or in part, the commission shall \n\nPOZNER H109437 \n \n8 \n \ndirect that fees for legal services be paid to the attorney for the claimant as \nfollows:  One-half (½) by the employer or carrier in addition to compensation \nawarded;  and  one-half  (½)  by  the  injured  employee  or  dependents  of  a \ndeceased employee out of compensation payable to them. \n \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have \ncontroverted Claimant’s entitlement to additional indemnity benefits.  Thus, the evidence \npreponderates that her counsel, the Hon. Andy Caldwell, is entitled to the fee as set out \nabove for all indemnity benefits that should have been paid consistent with this opinion \nand in compliance with the Arkansas Workers’ Compensation Act. \nCONCLUSION \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid in \na lump sum without discount, and this award shall earn interest at the legal rate until paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","textLength":14684,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H109437 LISA POZNER, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCE, EMPLOYER RESPONDENT STATE OF ARKANSAS, CARRIER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED SEPTEMBER 6, 2023 Hearing before A...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["fracture","back"],"fetchedAt":"2026-05-19T23:02:27.061Z"},{"id":"alj-H205408-2023-09-06","awccNumber":"H205408","decisionDate":"2023-09-06","decisionYear":2023,"opinionType":"alj","claimantName":"Dominic Russell","employerName":"Simmons Prepared Foods, Inc","title":"RUSSELL VS. SIMMONS PREPARED FOODS, INC. AWCC# H205408 SEPTEMBER 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/RUSSELL_DOMINIC_H205408_20230906.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RUSSELL_DOMINIC_H205408_20230906.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H205408 \n \nDOMINIC T. RUSSELL, Employee                                                                 CLAIMANT \n \nSIMMONS PREPARED FOODS, INC., Employer                                    RESPONDENT                        \n \nSEDGWICK CLAIMS MANAGEMENT, Carrier                                        RESPONDENT                        \n \n \n \n OPINION FILED SEPTEMBER 6, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 16, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on June 21, 2023 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The employee/employer/carrier  relationship  existed among  the  parties at all \nrelevant times. \n 3.   The claimant was earning an average weekly wage of $495.52 which would \nentitle him to compensation at the weekly rates of $331.00 for total disability benefits and \n\nRussell – H205408 \n2 \n \n$248.00 for permanent partial disability benefits. \n 4.   Respondents have controverted this claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s low back on December 27, 2021. \n2.    Medical. \n3.    Temporary total disability benefits. \n4.     Attorney fee. \nAt the time of the hearing claimant clarified that temporary total disability benefits \nare being requested from November 14, 2022 through a date yet to be determined. \n The  claimant  contends  he  suffered  a  compensable  injury  to  his  low  back on \nDecember  27,  2021.    He  contends  he  is  entitled  to  additional  medical  treatment  as \nrecommended by Dr. Blankenship.  He contends he is entitled to temporary total disability \nbenefits  from  the  date  last  paid  to  a  date  yet  to  be  determined.    Claimant  reserves  all \nother issues. \n The respondents contend that claimant did not suffer a compensable injury to his \nlow back. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference \n\nRussell – H205408 \n \n3 \n \nconducted on June 21, 2023 and contained in a pre-hearing order filed that same date \nare hereby accepted as fact. \n 2. Claimant has failed to meet his burden of proving by a preponderance of \nthe evidence that he suffered a compensable injury to his low back while working for \nrespondent on December 27, 2021. \n \n FACTUAL BACKGROUND \n Claimant is a 48-year-old man who began working for respondent on its production \nline in November 2021.  One of his job responsibilities was to “catch” boxes of chicken at \nthe end of the production line and place the box on a pallet.  These boxes could weigh \n30,  40,  or  50  pounds,  depending  on  the  customer  for  which  the  line  was  running  at  a \nparticular time.  Claimant testified that he injured his low back while moving these boxes \non December 27, 2021.  At his deposition, he described the accident as follows: \n  Q So in that process,  Dominic, how did you get hurt? \n \n  A On the back of the line, grabbing the box, turning \n  around and dropping it on the pallet stack, seven to seven, \n  seven wide and seven high, and my back - - on one of them \n  I just turned and set it down and my back had popped and I \n  felt a warm sensation.  I straightened back up and I tried to \n  stretch it out and then it was about lunch.  It was pretty much \n  lunch after that point.  And I went out to the car.  I ate lunch. \n  And then my leg started tingling and I went in and seen - - \n  I went straight to medical at that time.  I went to medical. \n \n \n At the hearing, claimant admitted that he did not report his injury to the nurse’s \nstation on the day of the accident, but instead reported it three days later on December \n30, 2021.  After claimant reported the injury he was sent to Dr. Berestnev who diagnosed \nclaimant  with  a  lumbar  sprain;  prescribed  medication;  and  placed  work  restrictions  on \n\nRussell – H205408 \n \n4 \n \nclaimant.  Claimant testified that he returned to work for respondent and that at times he \nwas placed at the end of the line catching boxes again.  He testified that after working a \nfew days his back was hurting so bad he could not get up from his bed.  \n Claimant  missed  his  follow-up  appointment  with  Dr.  Berestnev  on  January  12, \n2022, and testified he was essentially in bed for six months because of pain in his back.  \nClaimant  did  not  seek  any  additional  medical  treatment  for  his  low  back  until  May  26, \n2022,  when  he  was  evaluated  at  the  emergency  room  by  Shawn  Hall,  APRN,  for \ncomplaints  of  back  pain  after  falling  down  a  flight  of  stairs.    Claimant  was  offered \nmedication   but   he   refused   and   was   instructed   to   use   ice   and   over-the-counter \nmedications and to receive follow-up care from his primary care physician.   \n On June 2, 2022, claimant was seen by his primary provider, Sandi Casey, APRN, \nat NeoHealth.  At the time claimant was requesting a referral to a dermatologist for a mole \nremoval and to Dr. Anagnost, an orthopedic specialist, for back pain.  Casey made the \nreferral to Dr. Anagnost and claimant was seen by him on August 15, 2022.  Dr. Anagnost \nnoted claimant’s history of an injury at work, but also indicated that claimant’s low back \npain “has been an issue for several years.”  Dr. Anagnost ordered an MRI scan, x-rays, \nphysical therapy, and activity modification. \n Claimant  underwent  the  MRI  scan  on  September  12,  2022,  which  was  read  as \nfollows: \n  L4-5:  Broad-based disc bulge along with cystic changes \n  creating mild to moderate bilateral neural foramen narrowing, \n  left worse than the right.  The central canal is intact. \n \n  L5-S1:  Central disc protrusion protrusion seen on image \n  18/22.  Mild impression on the anterior thecal sac. \n  Bilateral neural foramens are patent. \n\nRussell – H205408 \n \n5 \n \n \n     *** \n  IMPRESSION: \n \n1.    Small central disc protrusion seen at L5-S1 level \ncreating mild impression of the anterior thecal sac. \nHowever, bilateral neural foramens are patent. \n2.   Mild epidural lipomatosis. \n3.   Early degenerative changes of the disc material \nat the L4-L5 level. \n \n \n Following  the  MRI  scan  claimant  returned  to  Dr.  Anagnost  on  October  3,  2022, \nwho noted that claimant’s prior treatment had not improved his condition and stated that \nsurgery was a possible option.  At this point claimant obtained legal representation and \nrespondent  sent  claimant  back  to  Dr.  Berestnev  on  October  6,  2022.    At  that  visit  Dr. \nBerestnev again diagnosed a sprain and he referred claimant to physical therapy twice a \nweek for three weeks. \n Claimant returned to Dr. Anagnost on November 4, 2022, and he recommended \nan injection and work restrictions.  As of claimant’s next  visit  with  Dr.  Anagnost  on \nNovember 14, 2022, he had not undergone the injection. \n On December 12, 2022, claimant was discharged from physical therapy for non-\ncompliance.  The discharge report indicates that claimant attended two visits with three \ncancelations and one no show. \n On April 10, 2023, claimant was evaluated by Dr. Blankenship who recommended \nmedication,  a  referral  to  Dr.  Cannon  for  a  possible  injection,  and  additional physical \ntherapy before determining whether to proceed with surgery.  Claimant was seen by Dr. \nCannon on May 3, 2023, and he recommended an injection. \n Although respondent paid for medical treatment from Dr. Berestnev, respondent \n\nRussell – H205408 \n \n6 \n \nsubsequently  controverted  this  claim  in  its  entirety.   As  a  result,  claimant  has  filed  this \nclaim contending that he suffered a compensable injury to his low back while working for \nrespondent on December 27, 2021.  He requests payment of medical benefits, temporary \ntotal disability benefits, and an attorney fee. \n \nADJUDICATION \n Claimant  contends  that  he  suffered  a  compensable  injury  to  his  low  back  while \nmoving boxes of chicken for respondent on December 27, 2021.  Claimant’s claim is for \na  specific  incident,  identifiable  by  time  and  place  of  occurrence.    In  order  to  prove  a \ncompensable injury as the result of a specific incident that is identifiable by time and place \nof occurrence, a claimant must establish by a preponderance of the evidence (1) an injury \narising out of and in the course of employment; (2) the injury caused internal or external \nharm to the body which required medical services or resulted in disability or death; (3) \nmedical evidence supported by objective findings establishing an injury; and (4) the injury \nwas caused by a specific incident identifiable by time and place of occurrence.  Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet his burden of proof by a \npreponderance of the evidence. \n A  review  of  the  evidence  reveals  a  number  of  inconsistencies  in  claimant’s \ntestimony.  First, claimant testified at his deposition that prior to the incident on December \n27, 2021, he had not had any problems with his back. \n  Q Well, let me ask you this:  Prior to this happening \n\nRussell – H205408 \n \n7 \n \n  in December of ’21, had you ever had any problems with \n  your back? \n \n  A No.  Not - - no. \n \n  Q So prior to December 27\nth\n of ’21, you had not had \n  any back problems? \n \n  A No. \n \n      *** \n  Q And I think I asked you before, prior to December 27\nth\n \n  of 2021, you never had any problems with your back; correct? \n \n  A No. \n \n \n However, the medical records indicate that claimant underwent an MRI scan of the \nlumbar spine on February 10, 2014, which revealed disc protrusions at L4-5 and L5-S1, \nthe  same  levels  for  which  claimant  is  currently  receiving  treatment.    At  the  hearing, \nclaimant  acknowledged  having  been  a  passenger  in  a  car  that  was  rear-ended  in  a \nparking lot in February 2014.  Claimant stated that he did not injure his back at that time, \nbut instead suffered an injury to his shoulder.  It seems unlikely that claimant would have \nundergone a lumbar MRI scan in 2014 if there were no complaints of low back pain and \nthe MRI scan does reflect disc protrusions at L4-5 and L5-S1. \n Second, at his deposition, claimant testified that his injury occurred shortly before \nlunch and that he did not finish his 30 minute lunch but instead went to the nurse’s station \nwhere he reported the injury and was sent for medical treatment. \n  Q So you finished lunch.  Did you have 30 minutes \n  for lunch? \n \n  A Yes.  And, no, I didn’t finish lunch. \n \n  Q Okay.  So before your lunch break was up, you \n\nRussell – H205408 \n \n8 \n \n  went to medical? \n \n  A Yes. \n \n  Q And by medical, do they have a nurse’s station \n  out there? \n \n  A Yes. \n \n  Q Who did you see there? \n \n  A One of the nurses.  I don’t know her name. \n \n  Q What did the nurse do for you? \n \n  A Drug test me.   Then said that they was going to \n  take me up to see their doctor.   \n \n  Q Okay.  And you went to see a doctor at Occupational \n  Health? \n \n  A Yes. \n \n  Q Was it that day? \n \n  A Yes. \n \n  Q Dr. Berestnev? \n \n  A Yes. \n \n \n At the hearing claimant admitted that he did not report the incident on December \n27, 2021.  In fact, claimant did not report an injury to the nurse’s station until three days \nlater on December 30, 2021.   \n I also note that after claimant reported an injury he was sent to Dr. Berestnev who \nplaced work restrictions on claimant.  Claimant testified that after working for a few days \nhis back was hurting so bad he could not get up out of bed and that this condition lasted \nfor six months. \n\nRussell – H205408 \n \n9 \n \n  Q Okay.  Well, you actually told me you couldn’t get \n  out of bed for six months.  Is that accurate? \n \n  A Yes. \n \n  Q Okay. \n  \n  A And I couldn’t get out of bed, but like I said, I had \n  to get up and go to the bathroom.  I had help on a lot of \n  stuff that I had to do.  Now, when I say I am bedridden,  \n  I am sorry.  I don’t know if you misunderstood, but if I \n  physically can’t do it myself, I am bedridden. \n \n  Q Okay.  So up until June,  you were unable to walk  \n  by yourself; correct? \n \n  A Not walk by myself.  I could get to small places, \n  distance. \n \n  Q Like to go to the bathroom? \n \n  A Bathroom.  If I had to go to the kitchen and whatnot, \n  but I also had help. \n \n \n Likewise, claimant at his deposition also testified that he was essentially \nbedridden for six months. \n  Q Did Dr. B schedule a follow-up visit? \n \n  A Yes. \n \n  Q You were supposed to see him in a week? \n \n  A Yes. \n \n  Q Did you ever go to that appointment? \n \n  A No. \n \n  Q Why not? \n \n  A When I went back to work, I was supposed to be \n  on light duty and they kept me on the back of the line \n\nRussell – H205408 \n \n10 \n \n  and when I went home, I could no longer move after I \n  got back home.  I was stuck in bed when I woke up the \n  next day. \n \n  Q So what did you do? \n \n  A Laid in bed in pain and my wife and her mother, \n  my mother-in-law, took care of me. \n \n  Q Okay.  How long did you stay in bed? \n \n  A I was in bed about six months. \n \n      *** \n  Q So, basically, what I am trying to figure out is \n  from January of ’22 until June of ’22, are you telling \n  me you were just at home in bed? \n \n  A I was in bed - - I am trying to think did they - - \n  because my mother-in-law and my wife would try to \n  get me to go to the hospital, but I didn’t have insurance. \n  I don’t have insurance.  I can’t.  They ain’t going to do \n  nothing for me.  Sandi Casey, though, did my referral. \n \n  Q Okay.  And I see that, to Dr. Anagnost? \n \n  A Yes. \n \n  Q So from January of ’22 to June, how were you \n  doing physically? \n \n  A Physically, I mean them parts, I couldn’t move. \n  I could move, but I really couldn’t move.  My legs would \n  go out from underneath me.  I laid in bed. They tried to \n  rotate me from the bed to the chair. That’s pretty much \n  it.  I was just in the house. \n \n  Q Were you able to walk? \n \n  A Depending on how far.  It was - - it depends on  \n  how far.  Like to the bathroom, yes, my wife would help \n  me get there to the bathroom. \n \n  Q So to walk from the bed to the bathroom, you had \n  to have help from  your wife? \n\nRussell – H205408 \n \n11 \n \n \n  A Yes. \n \n  Q For that period of January of ’22 to June of ’22? \n \n  A Let’s see.  Probably right around the end of April \n  to May-ish is when I could go probably by myself because \n  I would lock up on the toilet bowl. \n \n  Q Until April or May? \n \n  A Yes. \n \n  Q And so around April or May, you got to the point \n  where you were able to walk from the bedroom to the \n  bathroom my yourself? \n \n  A About that point I was starting to get around by  \n  myself a little bit. \n \n \n Despite  this  testimony  that  claimant  could  barely  get  out  of  bed  for  six  months \nwithout  help  and  that  he  could  not  get  medical  treatment  because  he did  not  have \ninsurance, the medical records indicate that claimant was seen on January 31, 2022, at \nNeoHealth  Tahlequah  Family  Practice.    The  one-page  report  does  not  mention  why \nclaimant  was  seen  that  day,  but  it  is  significant  because  this  was  during  the  period \nclaimant  testified  that  he  could  not  get  out  of  bed  to  return  to  Dr.  Berestnev  and  was \nunable to obtain medical treatment because he had no insurance.   \n More significantly, claimant was seen by his primary provider, Sandi Casey, APRN, \non  April  18, 2022.    Her  report  indicates that claimant  was  there to have a mole on his \ninner thigh examined.  Despite claimant’s testimony that at this time he could barely move \nfrom  his  bed  to  the  bathroom  without  help,  Casey  in  her  exam  notes under  General \nAppearance noted that claimant was “Well-nourished, well-developed male  in no acute \n\nRussell – H205408 \n \n12 \n \ndistress.”  She also noted under her Musculoskeletal notes:  “Gait is described as normal.”  \nThis report makes no mention of back pain, much less any indication that claimant had \nbeen bedridden for four months. \n As  previously  noted,  claimant  was  evaluated  by  Dr.  Steven  Anagnost,  an \northopedic specialist, on August 15, 2022.  Dr. Anagnost’s medical record does not \nspecifically state that claimant injured himself while working for respondent, but instead \nmerely states:  “He was in Simmons chicken plant in Gentry, Arkansas.”  Significantly, Dr. \nAnagnost’s medical report also contains the following notation: \n  He presents with a chief complaint of low back pain, \n  which has been an issue for several years.  (Emphasis \n  added.) \n \n \n Dr. Anagnost’s medical report also goes on to indicate that claimant had not been \nseen in the emergency room within the last year when in reality the claimant had been \nseen in the emergency room on May 26, 2022, about two and a half months earlier after \nfalling down a flight of stairs.   \n On April 10, 2023, claimant was evaluated by Dr. Blankenship.  Dr. Blankenship’s \nmedical report indicates that claimant gave a history of no prior back problems.  Again, \nthis  is  contradicted  by  the  2014  lumbar  MRI  scan  as  well  as  the  history  noted  in  Dr. \nAnagnost’s medical records. \n Finally, I note that fourteen days after claimant was evaluated by Dr. Blankenship, \nclaimant went to the emergency room and was placed in observation/evaluated for chest \npains which began while he was building hog pens. \n In short, claimant has the burden of proving by a preponderance of the evidence \n\nRussell – H205408 \n \n13 \n \nthat he suffered a compensable injury to his low back while working for respondent on \nDecember 27, 2021.  In this case, a finding that claimant suffered a compensable injury \non that date is dependent in large part upon the claimant’s credibility as a witness that the \ninjury occurred as he testified.  For reasons previously set forth, there are a number of \ninconsistencies present in this case.  Claimant denied prior back problems; however, he \nunderwent a lumbar MRI scan in 2014 which revealed disc protrusions at L4-5 and L5-\nS1, the same levels for which he is currently receiving medical treatment.  In addition, in \nDr. Anagnost’s history he notes that claimant had had an issue of complaints of low back \npain for several years.   Claimant testified at his deposition that he reported his injury on \nthe same day it occurred to a nurse in respondent’s nurse’s station.  In fact, claimant did \nnot  report  a  work-related  injury  until  three  days  later.    Claimant  testified  that  he  was \nessentially  bedridden  for  almost  six  months  beginning  in  January  2022.  According  to \nclaimant  he  could  barely  get  up  from  bed  without  help  to  even  go  to  the  bathroom.  \nHowever, claimant was seen by his own primary provider, Sandi Casey, on April 18, 2021, \nand her report makes no mention of back pain.  Her report does not indicate that claimant \nhad been bedridden for four months, but instead indicates that claimant was in no acute \ndistress and she described his gait as normal.   \n Based upon these inconsistencies, I simply find that claimant has failed to meet \nhis burden of proving by a preponderance of the evidence that he suffered a compensable \ninjury to his low back on December 27, 2021, while working for respondent. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that he suffered \n\nRussell – H205408 \n \n14 \n \na  compensable  injury  to  his  low  back  while  working  for  respondent  on  December  27, \n2021,  Therefore, his claim for compensation benefits is hereby denied and dismissed. \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $415.00. \n IT IS SO ORDERED. \n \n     ________________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":21027,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205408 DOMINIC T. RUSSELL, Employee CLAIMANT SIMMONS PREPARED FOODS, INC., Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT, Carrier RESPONDENT OPINION FILED SEPTEMBER 6, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washingt...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:4"],"injuryKeywords":["back","lumbar","sprain","shoulder"],"fetchedAt":"2026-05-19T23:02:29.201Z"},{"id":"alj-H203473-2023-08-31","awccNumber":"H203473","decisionDate":"2023-08-31","decisionYear":2023,"opinionType":"alj","claimantName":"Patrickj Austen","employerName":"Lowe’s Home Centers LLC","title":"AUSTEN VS. LOWE’S HOME CENTERS LLC AWCC# H203473 AUGUST 31, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//AUSTEN_PATRICKJ_H203473_20230831.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"AUSTEN_PATRICKJ_H203473_20230831.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H203473 \n \nPATRICK J. AUSTEN, Employee                                                                               CLAIMANT \n \nLOWE’S HOME CENTERS LLC, Employer                                                        RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier                    RESPONDENT \n \n OPINION FILED AUGUST 31, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by RANDY P. MURPHY, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On July 6, 2023, the above captioned claim came on for a hearing at Springdale, Arkansas.  A \npre-hearing conference was conducted on April 19, 2023, and a pre-hearing order was filed on April \n21,  2023.    A  copy  of  the pre-hearing order with modifications has been marked as Commission’s \nExhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on July 12, 2019. \n 3.   Claimant sustained a compensable injury on July 12, 2019.  \n At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Whether claimant is entitled to medical treatment as recommended by Dr. Blankenship.  \n All other issues are reserved by the parties. \n The claimant contends that “he is entitled to surgery as recommended by Dr. Blankenship.”  \n\nAusten-H203473 \n2 \n \n The respondents contend that “The proposed surgery is not reasonable, necessary, and related \nto the compensable injury.” \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe  his demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n19, 2023, and contained in a pre-hearing order filed April 21, 2019, as modified, are hereby accepted \nas fact. \n 2. Claimant has met his burden of proof by a preponderance of the evidence that he is entitled \nto additional medical benefits from Dr. James Blankenship for his compensable back injury. \n FACTUAL BACKGROUND \n Before the hearing began, there were a couple of changes to the Prehearing Order.  As the \nonly matter to be tried was the claimant’s entitlement to additional medical benefits, the issue regarding \nclaimant’s compensation rate was reserved.  Also, claimant had  included  in his  contentions that  he \nwas entitled to the “medical treatment as recommended by Dr. Tonymon and Dr. Blankenship,” but \namended that contention at the hearing to delete the recommendation by Dr. Tonymon.   \n Respondent had contended in the Prehearing Order that it would “likely have an independent \nmedical  examination conducted  to  obtain  a  second  opinion regarding  the  proposed  surgery.”  \nRespondents  submitted  a  review  of  the  records by  Dr.  Owen  Kelly  as that second  opinion,  and \ntherefore that contention was not pursued at the hearing.  \n \n\nAusten-H203473 \n3 \n \n \nHEARING TESTIMONY  \n \n Claimant was the only witness called by either party. He testified that he had worked at Lowe’s \nsince June 2017 as an assistant to the delivery driver. On July 12, 2019, he had loaded a refrigerator \non the lift gate of the truck; when he jumped in the truck to go to the next stop, he felt a pain in his \nright side, which he also felt in his groin, hip, and lower back. Although he finished the day working, \nthe pain intensified throughout the night and the next morning he reported it to his supervisor. He \nwas first treated at MedExpress for what was believed to be a groin tear, and then a hernia before he \nwas referred to Dr. Luke Knox. Dr. Knox then referred claimant to Camp Interventional Pain, where \nhe was treated by both Dr. Nicholas Camp and Dr. Nicholas Boris. During the time he was being \ntreated at Camp Interventional Pain, he said his condition remained constant throughout, with some \nbenefit from the treatment from Dr. Boris. During that time, he continued to work in the delivery \ndepartment at Lowe’s, but his job duties changed to where he was transitioned from in-home delivery \nto a coordinator’s role, which was primarily a desk job. Claimant was able to do the in-home delivery \njob  without restrictions  while  he  was  going  to  the  chiropractor.  If  he  had  an  especially  rough  day, \nclaimant would take the medicine prescribed by Dr. Camp. \n Claimant discovered that the desk job brought on more issues for his back because he had \ntrouble sitting for an extended period. As of the date of the hearing, claimant said he had not had any \nnew injuries since July 2019, and that the pain is constant. “I am almost always in some kind of pain, \nbut the location has moved around a little bit, but it is always concentrated in my lower back, my hip, \nor kind of in my groin area.” Claimant believes that his condition is gradually getting worse and that \nhe had done the conservative treatment route but was still having an issue with his back. He hoped to \nhave it fixed once and for all. \n Claimant voluntarily left Lowe’s because the desk job was harder on him, and he didn’t enjoy \n\nAusten-H203473 \n4 \n \n \nthe  work  as  much  as  doing  deliveries.  He then worked  at  Fresh  Market  in Rogers  in  receiving and \nstocking shelves, which was lighter work than appliance delivery.  \n Claimant  testified  that  he  had  not  had  problems  with  his lower back  before  July  2019,  but \naffirmed he had been seen by Dr. Knox in January 2019 for an upper back issue that resulted from a \nnon-work-related injury. Claimant said he was released in May 2019 and had been working his regular \nduty at Lowe’s between the time he was released and July 12, 2019. He believed the injury in July 2019 \nwas in a different part of his back than the one from earlier in the year.  \n On cross-examination, claimant explained that in January 2019 he was lifting a dresser for a \nfriend and felt some pinching and burning in his back. Dr. Knox referred him to physical therapy and \nrecommended claimant purchase an inversion table. Claimant said staying upside down was difficult. \nClaimant was not aware that the injections he received after the July 2019 incident were at the L1-L2 \nlevel, which was the same area treated after he injured himself in January 2019. \n Claimant was asked about a statement he gave on July 13, 2019, in which he said, “I am not \nsure what exactly happened or when it happened.” He went on to say, “Like I said, yeah, I went to \nwork that morning feeling fine and somewhere after the stuff that I had mentioned before when I \njumped into truck, that’s when everything started.” Claimant agreed that the pain that he felt when he \nwas first seen at MedExpress was in the lower right quadrant in the abdomen and down into the right \ntesticle. He did not recall saying there was no back pain. Claimant said he left employment at Lowe’s \nin May 2022 and began working at Fresh Market.  As of about two weeks before the hearing claimant \nwas only working weekends for Fresh Market, because he had accepted employment with a company \ncalled Tesseract, working in the shipping and receiving department. Claimant admitted that he does \nsome lifting in active duty for Tesseract. Claimant said he did not remember having any symptoms in \nhis mid-back after the incident at Lowe’s, as the issues have been primarily in his hip, lower back, and \n\nAusten-H203473 \n5 \n \n \ngroin area. \n Claimant understood the surgery proposed by Dr. Blankenship was for L4-L5, the lower back. \nHe did not recall any conversation with Dr. Knox following the January 2019 incident about needing \nsurgery  in  the  future.  Claimant said  the  nerve  blocks  he  received  after  the  July  2019 injury helped \nsome, but he did not recall ever being pain free. \n On redirect-examination, claimant recalled that he had a jet ski accident which for several days \nupped the pain but then it “Probably went back to where it was before the accident.” Regarding Page \n4 of Claimant’s Non-Medical Exhibit, which was the initial injury report to Lowe’s, claimant said that \nit wasn’t done in his handwriting. The manager on duty recorded “Patrick came to me explaining he \nhad pain in the groin area. He is unsure where it happened but started around 12:30 to 1:00 the area \nstarted to cause pain.” When the form requested claimant describe the injury in detail, it was recorded \n“Pain in the area stated to occur after working for a while. Unsure of cause other than lifting product.”  \n On recross-examination, claimant did not remember telling Dr. Blankenship, “Dr. Knox told \nhim he would probably wind up having to have surgery.” Claimant did recall Dr. Blankenship talking \nto him about an instability in his back. The cross-examination concluded with this exchange: \nQuestion (by Mr. Murphy): Dr. Blankenship wrote “Again the rationale for \noffering  an  arthrodesis  in  this  patient  is  to  correct  his  flat  back  along  with \ncorrecting his retrolisthesis and his segmental instability.” You understand he \ntalked to you about some instability in your back? \nAnswer (by the claimant): Yes. \n \nQ: Ok, and by the time you got to see Dr. Blankenship and he went over the \nMRI’s, including one that I think was done in 2022, you were having problems \nat L4-5. You believe you had those all along since July 2019; is that right? \nA: That is correct. \n \nREVIEW OF THE EXHIBITS \n \n The parties submitted over three hundred pages of medical records with very little duplication. \nThis review will attempt to summarize those records in chronological order.  \n\nAusten-H203473 \n6 \n \n \n Consistent with claimant’s testimony, he was first seen at MedExpress for three visits in July \n2019 and then was referred to Dr. Robert Petrino. Dr. Petrino determined that claimant did not have \na  hernia  and  referred  him  to  Dr.  Luke  Knox.  (R.X.1-16)  Following  his  first  visit  with  Dr.  Knox, \nclaimant was placed on a fifteen-pound lifting restriction for one month and was to be reevaluated \nafter an MRI.  Dr. Knox’s records of September 16, 2019, included his entries for April 12, 2019, and \nMay 14, 2019, which were from the treatment of the January, 2019 injury. Claimant was released to \nfull duty on May 14, 2019. (R.X.19) The x-ray report noted degenerative changes at L3-4, L4-5, and \nL5-S1. (R.X.22) \n An MRI was performed on September 30, 2019, and the impression was:  \n“Lower lumbar  predominant  spondylosis, worse  at  L4-5  and  L5-S1  levels. \nThere is severe right sided foraminal stenosis at L5-S1 level which could result \nin impingement on the existing right L5 nerve root.” (R.X.23 & 24) \n \nThere was no mention of any issues at L1-L2 in the MRI report.  \n \nDr. Knox saw claimant again on October 8, 2019.  His record referred to the MRI as “Noted \nto have foraminal disc at L1-L2 on the right.’ Dr. Knox referred claimant to Camp Interventional Pain \nfor a selective nerve block at L1-2 on the right. Claimant was released to work without limitations.  \n Claimant began his treatment with Dr. Nicholas Camp on October 22, 2019, who noted: “An \nMRI to the lumbar spine performed recently was revealed disc protrusions, primarily at the right L1-\n2 level.” Also, Dr. Camp recorded:  \n“I opened the patient’s MRI today during our visit and discussed in detail this \npatient's  underlying  pathology  and/or  treatment  approaches  available  to \naddress this pain... Will schedule a right L1-2 selective nerve root block with \nfluoroscopy.” \n \n Claimant  had  the  nerve  block  and  returned  to  see  Dr.  Knox  on December  9,  2019,  who \nrecorded in the plan that claimant was to be referred for a neurosurgical consultation of the extreme \nlateral disc herniation at L1-2 on the right. On December 10, 2019, claimant returned to Dr. Camp to \n\nAusten-H203473 \n7 \n \n \ncontinue pain management while he was waiting for approval for surgery. \nOn December 18, 2019, claimant saw Dr. Brandon Evans at NWA Neuroscience Institute, \nthe aforementioned referral by Dr. Knox. Dr. Evans recommended that claimant continue with non-\nsurgical treatments due to the improvement he had shown at that point. \n On January 14, 2020, claimant returned to Dr. Camp for epidural injections at the L4-L5 and \nL5-S1. In the next six months, claimant continued treatment with Dr. Camp or Dr. Nicholas Boris, a \nchiropractor associated with Dr. Camp. On June 2, 2020, claimant underwent another MRI; there was \ndiffuse disc bulging from L1 down to S1 and the impression was “Degenerative disc and joint disease \nwith varying degrees of neuroforaminal stenosis as described above. Disc bulge at L5-S1 minimally \nimpinges on the bilateral S1 nerve root.” (R.X.177) \n Claimant  continued  with  Dr.  Camp  and  Dr.  Boris  the  next  year  and  another  MRI  was \nperformed  on  June  14,  2021.  There  was  no  essential  canal  or  neuroforaminal  narrowing  from  T12 \nthrough L4. The impression of that MRI was: \n 1.Mild degenerative changes of the lumbar spine, worse in the lower lumbar \nspine.  At  L5-S1  there  is  a  minimal  diffused  disc  bulge  and  mild facet \nhypertrophy resulting in mild effacement of the anterior thecal sac, moderate \nright neuroforaminal narrowing and mild left neuroforaminal narrowing.  \n2.  Mild  degenerative  disc  signal  involving  all  five  intervertebral  discs  of  the \nlumbar spine. \n \n On July 26, 2021, claimant saw Dr. Charles Jones. The reason for the visit was:  \n“This is a workmen’s compensation related incident. He has been through \nchiropractic adjustments which helped some. Has not had any lumbar surgery \nbefore. He has had previous epidurals from Dr. Camp, these used to help but \nnot so much anymore. I thought about surgery, but he wanted to keep pressing \non  with  non-operative  treatments  which  is  fine.  He  tells  me  that workers’ \ncompensation  is  pushing for  him  to  get  a  second opinion  from  someone  in \nSpringdale that does lumbar disc replacements.” \n \n After reviewing the recent MRI, Dr. Jones was of the impression that an L4-S1 double TLIF \nwould be an option for his condition. Dr. Jones was very candid and advised claimant that he should \n\nAusten-H203473 \n8 \n \n \ntalk with the other surgeons to see what could be offered other than the double TLIF. \n Claimant had his first of three visits with Dr. Kenneth Tonymon on July 27, 2021. The plan \nfollowing that visit was for claimant to return to Dr. Camp for a right L5-S1 transforaminal ESI, after \nwhich a discectomy at that level would be considered. Following the ESI, claimant returned to see Dr. \nTonymon on September 21, 2021, and reported that he received a great deal of relief from the pain \nthat he had at the L5-S1 level. Claimant reported that he was no longer able to see the chiropractor \nand that his different job required that he sit for longer periods of time, which was painful. It appears \nthat  claimant  returned  to  Dr.  Camp  for  one  additional  epidural  injection  on  April  6,  2022, before \nexercising his right to change physicians.  \n A  little  over  three  years  from  the  date  of  his  injury,  claimant had his fourth  MRI.   The \nimpression of the one performed at Imaging Associates of Northwest Arkansas on August 15, 2022, \nwas “Mild  multilevel  spondylosis,  as  above.  No  high-grade  canal  stenosis  at  any  level.  Moderate \nbilateral neuroforaminal narrowing at L4-5 and L5-S1.”  \nClaimant then saw Dr. James Blankenship at the Neurosurgery Spine Center. Although Dr. \nBlankenship  did  not  believe  physical  therapy  was  going  to  offer  him  any  relief,  he  nonetheless \nprescribed  it  for  a  few  weeks; if claimant did  not  improve,  then  Dr.  Blankenship  was  going  to \nrecommend an arthrodesis at the L4-L5 and L5-S1 level. Claimant agreed with this, as he wanted to \ncontinue a conservative treatment plan.  \n When claimant returned on October 31, 2022, Dr. Blankenship recorded that the workers’ \ncompensation carrier would not approve physical therapy and as a result, claimant’s pain was getting \nsomewhat  more  intense.  Dr.  Blankenship  expressed  his  ire  at  the  denial  of  the  physical  therapy \nrecommendation and again recommended eight weeks of aggressive physical therapy. This time, the \nphysical therapy was approved, but other than relief by using traction, it did not alleviate his symptoms. \n\nAusten-H203473 \n9 \n \n \nDr. Blankenship consulted with the physical therapist and learned claimant was diligent during that \ncourse of treatment. Dr. Blankenship again discussed surgery, an anterior lumbar interbody arthrodesis \nat L4-L5 and L5-S1 with posterior decompression and extreme lateral decompressions at both L4-L5 \nand L5-S1. Claimant requested time to consider this option. Dr. Blankenship told him to let him know \nif  he  decided  to  go  through  with  the  surgery  so the precertification process with the workers’ \ncompensation carrier would begin. While there was no subsequent record from Dr. Blankenship, the \ntestimony from the claimant was clear that he wants to proceed with the surgery. \n The final record submitted was a review of the records performed by Dr. Owen Kelly, a board- \ncertified orthopedic surgeon, who prepared his report on June 28, 2023. The first four pages of the \nreport  is  a  summary  of  the  record,  after  which Dr.  Kelly  opined: “The medical documentation, \nphysical exam findings and diagnosis isolate the injury at the L1-L2 segment. The L4-S1 findings do \nnot appear to be related to the injury.” Dr. Kelly found there was a documented pathology at L4-S1 \nwhich would be related to a degenerative disc disease. He said that it would include the treatment to \nthat point as well as the arthrodesis fusion at L4-S1.     \nADJUDICATION \n  \n The parties stipulated, and I accept as fact, that claimant sustained a compensable injury on \nJuly 12, 2019. Consequently, the only issue properly before this court is the Commission's finding that \nclaimant proved  by  a  preponderance  of  the  evidence  entitlement  to  the medical  treatment \nrecommended by Dr. Blankenship for that compensable injury, Johnson Controls, Inc. v. Miller, 2023 Ark. \nApp. 235. \n While the parties were not specific as to the nature of this compensable injury, the testimony \nand  medical  records make  it  clear  that the injury was to claimant’s low back.  Dr.  Knox  had  seen \nclaimant earlier in 2019 for an injury to his back at the L1-L2 level, and in his records in September \n\nAusten-H203473 \n10 \n \n \n2019, mentioned that prior treatment. However, claimant was released in May 2019 to return to full \nduty after being treated for that non-work-related injury and was working at full duty on July 12, 2019.  \nThe MRI performed on September 30, 2019, did not show any issues at the L1-L2 level but did reveal \nsome  significant bulges at  L4-S1  levels.    For  reasons  not explained  in  the  records,  Drs. Knox  and \nCamp did not begin treatment at L4-L5 or L5-S1, but rather concentrated on L1-L2 during the first \nfew months claimant was treated by them.  In the records of his consultation examination requested \nby Dr.  Knox, Dr.  Evans  mentioned  the  L4-S1  disc  protrusion in  December  2019,  and Dr.  Camp \nadded addressing the issues at L4-S1 to claimant’s treatment plan in January 2020.   \n From the records and the testimony, I am satisfied that claimant injured his back at L4-S1 in \nJuly 2019.  It is a bit puzzling how the four MRIs claimant has undergone have shown different results \nat his L1-L2 level.  That is,  however, largely  irrelevant  to  the issue of  the  reasonableness  of  Dr. \nBlankenship’s recommendations, which is for surgery at the L4-S1 level. Claimant was understandably \nreluctant to undergo a major surgery such as has been suggested to him but has reached the point that \nit seems to be his only option.   \n In reviewing Dr. Kelly’s report, I give more  credibility  to the doctor  that  has examined a \npatient than I do to one that merely reviewed records. His statement “Although there is documented \npathology at L4-S1, the treatment would be related to degenerative disc disease” is irrelevant; “a pre-\nexisting disease or infirmity does not disqualify a claim if the employment aggravated, accelerated, or \ncombined with the disease or infirmity to produce the disability for which compensation is sought.” \nFulton  Cty.  Hosp.  v.  Herring,  2020 Ark.  App. 221,  597  S.W.3d  162.    A  person with  degenerative  disc \ndisease without symptoms or limitations is not barred from benefits; claimant was working at his job \nwithout restrictions when he was injured.  As such, I find he has proven by a preponderance of the \nevidence that the medical treatment as recommended by Dr. Blankenship is reasonable and necessary.  \n\nAusten-H203473 \n11 \n \n \nORDER \n \n Claimant has met his burden of proving by a preponderance of the evidence that he is entitled \nto  additional  medical  treatment as  recommended  by  Dr.  Blankenship for the  injury  to his  injury. \n Respondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":21859,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203473 PATRICK J. AUSTEN, Employee CLAIMANT LOWE’S HOME CENTERS LLC, Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier RESPONDENT OPINION FILED AUGUST 31, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washin...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","hip","hernia","lumbar"],"fetchedAt":"2026-05-19T23:04:43.385Z"},{"id":"alj-H204854-2023-08-31","awccNumber":"H204854","decisionDate":"2023-08-31","decisionYear":2023,"opinionType":"alj","claimantName":"Brandonl Petty","employerName":"A M C Rehab","title":"PETTY VS. A M C REHAB AWCC# H204854 AUGUST 31, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PETTY_BRANDONL_H006565_20230831.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PETTY_BRANDONL_H006565_20230831.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H006565 \n \nBRANDON L. PETTY, Employee                                                                           CLAIMANT \n \nA M C REHAB, Employer                                                                                 RESPONDENT \n \nGUARD INSURANCE COMPANIES, Carrier                                                RESPONDENT \n \n \n OPINION FILED AUGUST 31, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On August 8, 2023, the above captioned claim came on for a hearing at Fort Smith, Arkansas.  \nA pre-hearing conference was conducted on May 18, 2023, and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The respondents have controverted the claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Whether the employee/employer/carrier relationship existed on May 18, 2020.  \n2. If relationship existed, whether claimant sustained a compensable injury on May 18, 2020. \n3. Compensation rate. \n4. If compensable, whether claimant is entitled to medical benefits, temporary total disability  \n\nPetty-H006565 \n2 \n \n \nbenefits, permanent partial disability benefits, wage loss benefits, and mileage benefits. \n 5. Attorney’s fees. \nAll other issues are reserved by the parties. \n The claimant contends that “He was injured on May 18, 2020, when operating a table saw, \nwithout a guard on it, and amputated his second and third digits, partial amputation of thumb and \nlaceration of fourth digit on left hand. On May 18, 2020, the claimant presented to Mercy Hospital \nemergency room with complaints of a hand injury with traumatic amputation to left index and middle \nfingers. However, due to the claimant’s injuries, he was transferred to UAMS in Little Rock via Mercy \nLifeline. The claimant attended UAMS in Little Rock for a traumatic amputation of multiple fingers. \nHe received complete amputations at the left index and middle fingers as well as lacerations to his left \nthumb,   ring,   and   pinky   finger.   The   claimant   was   scheduled   for   surgery   that   night   to \nreplant/revascularization of hand, pinning of fractured digit and repair nerve in finger. Claimant was \nreleased  on  May  20,  2020,  from  UAMS  with  no  follow  up  visits  scheduled.  On  May  22,  2020,  the \nclaimant attended an appointment with his primary care physician, Dr. Jeffrey Medlock, for continued \npain  in  his  left  hand.  On  June  15,  2020,  the  claimant  was  seen  and  treated  by  Dr.  Eric  Heim,  an \northopedic  surgeon,  for  continued  left  hand  pain.  Dr.  Heim  placed  an  order  for  hand  therapy  and \nscheduled a follow-up appointment for pin removal. The claimant returned to Dr. Heim’s office for \nthe  pin  removal  as  well  as  a  follow-up  where  he  was  advised  to  continue  the  hand  therapy  and  to \nreturn in four (4) weeks for a follow-up. The claimant reserves the right to amend and supplement his \ncontentions after additional discovery have been completed.” \nThe respondents contend that “There  is  no  employment  relationship  between  the  parties. \n\nPetty-H006565 \n3 \n \nRespondents specifically contend that AMC Rehab\n1\n was not in operation until June 2020, and did not \nhave  any  contracts  to  perform  construction  prior  to  June  2020.  As  such,  AMC  Rehab  was  not \nclaimant’s direct or indirect employer under A.C.A. §11-9-402.”    \n From a review of the entire record, including medical reports, documents, the depositions of \nclaimant and Alex Harris, the following findings of fact and conclusions of law are made in accordance \nwith A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on May \n18, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.    The stipulations agreed to by the parties at the hearing of this matter are hereby accepted \nas fact, except I do not find who employed claimant on the day of the injury, but rather which company \ndid not.  \n 3.    Claimant has failed to prove by a preponderance of the evidence that he was employed \nby AMC Rehab on the date of his injury.  \n \n FACTUAL BACKGROUND \n When this matter convened for a hearing, the parties advised that they did not believe there \nwere any factual issues to be resolved.  The  depositions of the claimant and Alex Harris, owner of \nAsset Management Construction LLC, d/b/a AMC Rehab were submitted, and will be discussed as \nif they had testified live at the hearing.   \n The stipulations were given orally by respondent’s counsel, and claimant’s counsel was given \n \n1\n The parties used “AMC Rehab” to refer to respondent Asset Management Construction d/b/a AMC Rehab.  Those \ntwo names refer to the same company and are used interchangeably in this opinion.   \n\nPetty-H006565 \n4 \n \n \nan  opportunity  to  object  to  that  recitation.    No  refutation  was  given,  but  an  additional  stipulation \noffered by claimant was agreed upon.  The stipulations were as follows:  \n 1.  In May 2020, claimant was hired to work for Bill Jones.  At the time, Mr. Jones was working \non a piece of property owned by a company called Arkstone that is on Chismville Road in Greenwood, \nArkansas.  Arkstone was in the business of buying houses and then selling them, a practice commonly \ncalled “flipping.” Arkstone is an entity owned at least in part by Alex Harris. \n 2.    Rod Colquitt was an independent contractor for Arkstone.  On May 13, 2020, Mr. Colquitt \nrequested that claimant send him information for a W-9 tax form.  \n 3.     On May 18, 2020, while working on the property on Chismville Road in Greenwood, \nArkansas, claimant sustained an injury to his left hand, severing more than half his thumb, and all his \nindex and middle finger, as well as causing damage to his ring finger.  \n 4.      Claimant was hospitalized for his injury, and after he left the hospital, he went to Bill \nJones’ home to retrieve his vehicle.  During that visit, Mr. Jones gave claimant $500.00, paying him \nfor five days of work, although claimant had only worked four days at the time of his accident.  \n 5.     Respondent Asset Management Construction d/b/a AMC Rehab was formed to be a \nconstruction company to do rehabilitation work on properties owned by Arkstone and other entities \nowned by Mr. Harris.   Asset Management Construction d/b/a AMC Rehab began operating on June \n15, 2022  \n 6.       Bill Jones did not have the authority to hire anyone on behalf of Rod Colquitt or any of \nthe entities owned in whole or in part by Alex Harris.   \nHEARING TESTIMONY \n \n Claimant’s testimony at his deposition described his horrific injury.  When asked who hired \nhim to work, he said he understood he was working for Bill Jones, who was doing business as Total \n\nPetty-H006565 \n5 \n \n \nHome Remodeling.  Claimant was friends with Bruce Jones, son of Bill Jones, which is how claimant \nwas  made  aware  there  was  a  position  available  to  work  for  Bill  Jones.    Claimant  unsuccessfully \nattempted to negotiate a higher hourly rate with Bill Jones.  He never met Rod Colquitt, but did sign \na W-9 tax form for Mr. Colquitt as requested by Bill Jones.  Claimant believed the money he received \nfrom Bill Jones for the work he did before he was injured came from Rod Colquitt.  He was of the \nimpression that Bill Jones was the manager, but Mr. Colquitt was “the money man.”  Claimant knew \nnothing about Asset Management Construction at the time of his injury.   \n During his deposition, Alex Harris identified the companies he owned or was associated with, \nincluding Asset Management Construction d/b/a AMC Rehab.  While this company was incorporated \non September 9, 2019, it was stipulated that it did not begin operations until after claimant was injured \non May 18, 2020.  Rod Colquitt was not employed by AMC Rehab until July 3, 2020.  Mr. Harris was \ncertain that claimant was not employed by AMC Rehab at the time of his injury; he believed claimant \nwas working for Bill Jones.  \n \nREVIEW OF THE EXHIBITS \n \n A detailed review of the medical records is unnecessary for a determination of the issue in this \nmatter,  as  it  is  stipulated claimant  suffered  a  partial  amputation  of  his  thumb,  complete  loss  of  his \nforefinger and middle finger, and damage to his ring finger.   \n The  non-medical  exhibits  include  the  incorporation  document  for  Asset  Management \nConstruction  d/b/a  AMC  Rehab,  as  well  as  financial  records  from  Arkstone  that  show  payments \nmade to Bill Jones in the months prior to claimant’s accident.   \nADJUDICATION \n \n The threshold issue in this case is whether claimant was working for AMC Rehab on the day \nhe was injured.  The answer to that question, as per the stipulations announced at the hearing, is “no.”  \n\nPetty-H006565 \n6 \n \n \nThe parties stipulated claimant was working for Bill Jones.\n2\n While claimant believed Rod Colquitt was \n“the money man,” the records show that Bill Jones was being paid by Arkstone, and Rod Colquitt was \nnot employed by Arkstone on May 18, 2020. As per the stipulations at the hearing, Bill Jones lacked \nthe authority to hire claimant on behalf of Rod Colquitt, or any of the businesses owned in whole or \nin  part  by  Alex  Harris,  including  respondent  Asset  Management  Construction  d/b/a  AMC  Rehab. \nWhile it is curious why Rod Colquitt was asking for information from claimant to complete a W-9 tax \nform, nothing about that request makes claimant the employee of AMC Rehab, a company that existed \nbut was not operating on May 18, 2020.   \n  I therefore find that claimant has failed to meet his burden of proof that he was employed by \nrespondent Asset Management Construction d/b/a/ AMC Rehab on May 18, 2020, and as such, all \nother  issues  regarding  his  entitlement  to  indemnity  or  medical  benefits are decided in respondent’s \nfavor as well.   \nORDER \n \nClaimant has failed to meet his burden of proving by a preponderance of the evidence that he \nwas employed by Asset Management Construction d/b/a/ AMC Rehab on May 18, 2020. Therefore, \nhis claim for those indemnity and medical benefits is hereby denied and dismissed. \nRespondent is responsible for the court reporter charge of $493.45. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE \n \n2\n As stated above, I am not finding that claimant worked for Bill Jones, as Mr. Jones was not before me to defend such \na claim.   My order is limited to the question posed in the issues to be decided:  Was claimant an employee of AMC \nRehab at the time of his injury?","textLength":11346,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H006565 BRANDON L. PETTY, Employee CLAIMANT A M C REHAB, Employer RESPONDENT GUARD INSURANCE COMPANIES, Carrier RESPONDENT OPINION FILED AUGUST 31, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Arkansas. Claima...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:04:49.574Z"},{"id":"alj-H010885-2023-08-31","awccNumber":"H010885","decisionDate":"2023-08-31","decisionYear":2023,"opinionType":"alj","claimantName":"Connie Guild","employerName":"Walmart Inc","title":"GUILD VS. WALMART INC. AWCC# H010885AUGUST 31, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GUILD_CONNIE_H010885_20230831.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GUILD_CONNIE_H010885_20230831.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H010885 \n \n \nCONNIE GUILD, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nWALMART INC.,   \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nWALMART CLAIMS SERVICES, INC., \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED AUGUST 31, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, did not attend the hearing.  \n \nRespondents  represented  by  the  Honorable  R.  Scott  Zuerker,  Attorney  at  Law,  Fort  Smith, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on August 30, 2023 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), for a determination of whether \nthe above-referenced case should be dismissed for failure to prosecute under the provisions of Ark. \nCode  Ann.  §11-9-702  (Repl.  2012)  and Arkansas Workers’ Compensation  Commission  Rule \n099.13.  \nAppropriate Notice of this hearing was provided to all parties to their last known address, \nin the manner prescribed by law.   \nThe record consists of the transcript of the August 30, 2023, hearing and the documents \nheld therein.  Additionally, the entire Commission’s file has been made a part of the record.  It is \nhereby incorporated into the hearing transcript by reference.    \n\nGuild – H010885 \n \n2 \n \nProcedural History \n On January 12, 2022, the Claimant’s then attorney filed with the Commission a claim for \nArkansas workers’ compensation benefits  by  way  of  a  Form  AR-C.    Counsel  alleged  that  the \nClaimant sustained compensable injuries on February 1, 2020, while performing her employment \nduties  for  the  respondent-employer.  Counsel  asked  for  both  initial  and  additional workers’ \ncompensation benefits on behalf of the Claimant.  In fact, her attorney checked all the boxes for \nevery  benefit  allowed  under  the  law  in  connection  with  this  claim.    Per  the  Form AR-C,  the \nClaimant’s accidental injury occurred as follows: “Fell back off a ladder and landed on a cart, and \nthen fell on the floor while getting something off the top shelf in the freezer.  She sustained injuries \nto the back, hip, and other whole body.”  \n The  claims  adjuster  filed  a  Form  AR-2  with  the  Commission  on  December  28,  2020, \naccepting  this  as  a  compensable  claim  for  an injury to the Claimant’s left  hip  in  the  form  of  a \nclosed fracture.  \n On November 14, 2022, the Claimant’s attorney filed a motion to withdraw as her counsel.  \nThe  Full  Commission  entered  an  Order  on  November  29,  2022,  granting  the  motion  for  the \nClaimant’s attorney to withdraw from representing her in this claim.  \n   Subsequently, there was no action taken by the Claimant to resolve her claim, and nor did \nshe request a hearing.   \nTherefore, the Respondents filed a Motion to Dismiss with the Commission on  May 22, \n2023.  The Respondents’ pleading included a certificate of service to the Claimant affirming that \nthey sent a copy of the above motion to the Claimant via certified mail through the United States \nPostal Service.  \n\nGuild – H010885 \n \n3 \n \nThe Commission sent a letter-notice on May 24, 2023, to the Claimant by mailing it to her \nlast  known  address  via  first-class  and  certified  mail.  Per  this  correspondence,  the  Commission \ngave  the  Claimant  a  deadline  of  twenty  days,  for  filing  a  written  response to the Respondents’ \nmotion. \nOn  May  25,  2023,  the  Claimant  sent  an  email  to  the  Commission  objecting  to  the \nRespondents’ motion.  Specifically, the Claimant said that she was is in the process of retaining \nlegal counsel.  She also said that her medical doctor could send records showing that her injury is \npermanent and will continue to worsen and eventually cause her to be disabled. \nAs  a  result,  the Respondents’ motion  was  held  in  abeyance  for  thirty  days  so  that  the \nClaimant could retain legal counsel and start the hearing process.    \nOn  June  21,  2023,  the  Claimant  wrote  to  the  Commission  saying  she  had  retained an \nattorney and was waiting for her paperwork from her previous attorney’s law firm.  However, to \ndate,  the  attorney  named  in  this  correspondence  has  not  entered  an  appearance  with  the \nCommission on behalf of the Claimant in this claim.     \nTherefore, pursuant to a Hearing Notice dated July 18, 2023, the Commission notified the \nparties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim due \nto a lack of prosecution of it by the Claimant.  The notice was mailed to the Claimant via first-\nclass and certified mail.  Said hearing was scheduled for August 30, 2023, at the Commission in \nLittle Rock, Arkansas.  \nThe  notice  that  the  Commission  sent  to  the  Claimant  via  first-class  mail  has  not  been \nreturned  to  the  Commission.    Although  the  postal  service  notified  the  Commission,  they  were \nunable to locate any delivery information in their records regarding the above item, a notation in \nthe Commission’s file was authored by the manager of our Legal Advisors Division, which shows \n\nGuild – H010885 \n \n4 \n \nthat on July 18, the Claimant contacted his office about the dismissal hearing.   At that time, the \nClaimant indicated among other things, that she would be attend the hearing.       \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled. Yet, the Claimant did not attend the dismissal hearing.  However, the Respondents \nappeared through their attorney.   \nCounsel noted that it has been more than six months since the filing of the claim, and a \nhearing  has  not  been  requested  by  the  Claimant.    He  also  noted  that  the  Claimant  has  had \nreasonable time to move forward with this claim but has failed to do so.  Therefore, counsel moved \nthat   this   claim   be   dismissed   under   Ark.   Code   Ann.   §11-9-702   and Arkansas  Workers’ \nCompensation Commission Rule 099.13, without prejudice due to a lack of prosecution of the case \nby the Claimant. \n        Discussion \nThe record before me proves that the Claimant has failed to promptly prosecute her claim \nfor workers’ compensation benefits.  The Claimant has not requested a hearing since the filing of \nthe Form AR-C in January 2022.  More importantly, the Claimant did not appear at the hearing to \nobject to her claim being dismissed.   \nUnder these circumstances, I am compelled to find that the evidence preponderates that the \nClaimant  has  failed  to  prosecute  her  claim for workers’ compensation benefits in  the  proper \nmanner set forth under the law.  Hence, the evidence proves that the Claimant has failed to make \na sincere effort to pursue her claim.  \nTherefore, per Ark. Code Ann. §11-9-702 and Rule 099.13 of this Commission, I find that \nthis claim should be and is hereby respectfully dismissed, without prejudice to the refiling of it \nwithin the limitation period specified by law.   \n\nGuild – H010885 \n \n5 \n \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission, a motion for dismissal of this \nclaim due to a lack of prosecution by the Claimant, for which a hearing was \nheld. \n \n3. The Claimant has not requested a hearing since the filing of her Form AR-\nC,  which  was  done  in  January  2022.  Hence,  the  evidence  preponderates \nthat   the   Claimant   has failed  to  prosecute  her  claim  for  workers’ \ncompensation benefits.      \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby granted, without prejudice, per Arkansas Code Ann. §11-9-702 and \nCommission Rule 099.13, to the refiling of it within the limitation period \nspecified by law.  \n \nORDER \nFollowing the findings of fact and conclusions of law set forth above, this claim is hereby \ndismissed per Arkansas Code Ann. 11-9-702 and Arkansas Workers’ Compensation Commission \nRule 099.13, without prejudice, to the refiling of it, within the limitation period specified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":9115,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H010885 CONNIE GUILD, EMPLOYEE CLAIMANT WALMART INC., EMPLOYER RESPONDENT WALMART CLAIMS SERVICES, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 31, 2023 Hearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulas...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["back","hip","fracture"],"fetchedAt":"2026-05-19T23:04:47.508Z"},{"id":"alj-H207215-2023-08-30","awccNumber":"H207215","decisionDate":"2023-08-30","decisionYear":2023,"opinionType":"alj","claimantName":"Columbus Kinley","employerName":"Black, Inc./blue Seal Petroleum (stuttgart)","title":"KINLEY VS. BLACK, INC./BLUE SEAL PETROLEUM (STUTTGART) AWCC# H207215AUGUST 30, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//KINLEY_COLUMBUS_H207215_20230830.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KINLEY_COLUMBUS_H207215_20230830.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H207215 \n \nCOLUMBUS F. KINLEY, EMPLOYEE         CLAIMANT \n \nBLACK, INC./BLUE SEAL PETROLEUM (STUTTGART), \nEMPLOYER                           RESPONDENT \n \nFARMINGTON CASUALTY CO., CARRIER/TPA                     RESPONDENT \n \n \nOPINION FILED 30 AUGUST 2023 \n \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on Wednesday, 30 August 2023. \n \nClaimant, Columbus F. Kinley, did not appear. \n \nMr.  Guy  Alton  Wade,  Attorney-at-Law  of  Little  Rock,  appeared  on  behalf  of \nrespondents. \n \nSTATEMENT OF THE CASE \n A  hearing  was  held  in  the  above-styled  matter  on 30  August 2023,  in  Little  Rock, \nArkansas,  on  respondents’ Motion  to  Dismiss.   This  claim  involves  an  alleged  workplace \ninjury  that  was  denied  as  compensable  by  the  respondents,  who  claimed  that  any  injury \noccurred outside of the course and scope of employment.  \n The  claimant  was  initially  represented  by  counsel  who  filed  an  AR-C  with  the \nCommission   on   6   January   2023.  Discovery   commenced   and   a  prehearing  telephone \nconference was set for 13 June 2023, but the claimant passed away unexpectedly, and from \napparently  unrelated  causes,  on  8  May  2023.   Claimant’s counsel communicated with the \ndecedent’s spouse  on  the  pendency  of  this  claim  and  subsequently  moved  to  withdraw  as \ncounsel.  That motion was granted by the Full Commission on 15 June 2023.  \nThe record reflects that the respondents then moved for a dismissal on 22 June 2023. \nNotice was sent on the motion’s hearing, and no response was received from anyone acting \n\nKINLEY- H207215 \n2 \n \non the claimant’s behalf.  At the time of the hearing, Mr. Wade represented that he had not \nbeen made aware of any attempt to substitute an administrator for an estate in this action \nor any other efforts along those lines by someone resisting the dismissal of this matter.     A \ncopy of the claimant’s death certificate and  other  relevant  records  were  admitted  without \nobjection as “Respondents’ Exhibit No 1” at the hearing. \n Based  on  the  record,  available  evidence,  and  argument  of  counsel,  I  am  inclined  to \nfind  that  the  Motion  to  Dismiss  should  be  granted  and  the  matter  should  be  dismissed \nwithout prejudice.  \nORDER \n Pursuant to the above, I find that the Motion to Dismiss should be granted and this \nmatter should be dismissed without prejudice at this time.   \nSO ORDERED. \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2646,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207215 COLUMBUS F. KINLEY, EMPLOYEE CLAIMANT BLACK, INC./BLUE SEAL PETROLEUM (STUTTGART), EMPLOYER RESPONDENT FARMINGTON CASUALTY CO., CARRIER/TPA RESPONDENT OPINION FILED 30 AUGUST 2023 Hearing before Administrative Law Judge JayO. Howe in Little Rock, Pu...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:3","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:04:35.035Z"},{"id":"alj-H100273-2023-08-30","awccNumber":"H100273","decisionDate":"2023-08-30","decisionYear":2023,"opinionType":"alj","claimantName":"Timothy Needles","employerName":"Tyson Poultry Inc","title":"NEEDLES VS. TYSON POULTRY INC. AWCC# H100273 AUGUST 30, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/NEEDLES_TIMOTHY_H100273_20230830.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NEEDLES_TIMOTHY_H100273_20230830.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H100273 \n \n \nTIMOTHY NEEDLES, Employee                                                                   CLAIMANT                  \n \nTYSON POULTRY, INC., Self-Insured Employer                                   RESPONDENT \n \nTYNET CORPORATION, Carrier/TPA                                                    RESPONDENT                           \n \n \n \n OPINION/ORDER FILED AUGUST 30, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by J. MATTHEW MAULDIN,  Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On March 30, 2022, an AR-C was filed by Attorney Laura Beth York on behalf of \nclaimant requesting compensation benefits for an injury on April 14, 2020.  On May 31, \n2023, Attorney York filed a Motion to Withdraw as Counsel.  That motion was granted by \na  Full  Commission  Order  filed  June  13,  2023.    No  action  has  been  taken  to  request  a \nhearing  in this claim, and as a result respondent filed a  motion to dismiss on June 26, \n2023.   \n A hearing on respondent’s motion was scheduled for August 23, 2023, and notice \nof  that  hearing  was  sent  to  claimant  by  certified  mail  and  delivered  on  July  20,  2023.  \n\nNeedles – H100273 \n \n2 \n \nClaimant did not appear at the hearing and has not responded to the respondent’s motion. \n After my  review of  the  respondent’s motion,  the  claimant’s failure  to  respond \nthereto,  and all  other  matters  properly  before  the  Commission, I find that respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2048,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H100273 TIMOTHY NEEDLES, Employee CLAIMANT TYSON POULTRY, INC., Self-Insured Employer RESPONDENT TYNET CORPORATION, Carrier/TPA RESPONDENT OPINION/ORDER FILED AUGUST 30, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washingt...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:04:37.100Z"},{"id":"alj-H207412-2023-08-30","awccNumber":"H207412","decisionDate":"2023-08-30","decisionYear":2023,"opinionType":"alj","claimantName":"Marty Thorne","employerName":"Midland Industrial Service","title":"THORNE VS. MIDLAND INDUSTRIAL SERVICE AWCC# H207412 AUGUST 30, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/THORNE_MARTY_H106654_20230830.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THORNE_MARTY_H106654_20230830.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H106654 \n \n \nMARTY THORNE, Employee                                                                        CLAIMANT                          \n \nMIDLAND INDUSTRIAL SERVICE, Employer                                        RESPONDENT                          \n \nLIBERTY MUTUAL GROUP, Carrier/TPA                                               RESPONDENT                         \n \n \n \n OPINION/ORDER FILED AUGUST 30, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by DAVID C. JONES,  Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This  case  comes  on  for  review  following  a  hearing  on  respondent’s  Motion  to \nDismiss. \n On  December  28,  2021,  Form  AR-C  was  filed  by  Attorney  Wesley  Cottrell  on \nbehalf of the claimant alleging an injury on June 6, 2021, and requesting compensation \nbenefits.    Some  discovery  was  completed  before  Attorney  Cottrell  filed  a  Motion to \nWithdraw as Counsel.  That motion was granted by Full Commission order filed August \n30, 2022.  Since the filing of that order, no further action has been taken by the claimant \nto  pursue  his  claim.    Respondent  filed  a  motion  to  dismiss  this  claim  for  failure  to \nprosecute on June 14, 2023.  A hearing was scheduled on respondent’s motion for August \n16, 2023, and notice of that hearing was sent to claimant by certified mail at the claimant’s \n\nThorne – H106654 \n \n2 \n \nlast known address.  The certified mail was returned to the Commission as “Unclaimed.”  \nClaimant did not appear at the hearing and has not responded to the respondent’s Motion \nto Dismiss. \n After  my  review  of  the  respondent’s  motion,  the  claimant’s  failure  to  respond \nthereto,  and all  other  matters  properly  before  the  Commission,  I  find  that  respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission’s  Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2287,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H106654 MARTY THORNE, Employee CLAIMANT MIDLAND INDUSTRIAL SERVICE, Employer RESPONDENT LIBERTY MUTUAL GROUP, Carrier/TPA RESPONDENT OPINION/ORDER FILED AUGUST 30, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington Cou...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:04:41.223Z"},{"id":"full_commission-H206753-2023-08-29","awccNumber":"H206753","decisionDate":"2023-08-29","decisionYear":2023,"opinionType":"full_commission","claimantName":"Daniela Grana","employerName":"Rockline Industries, Inc","title":"GRANA VS. ROCKLINE INDUSTRIES, INC. AWCC# H206753 AUGUST 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Grana_Daniela_H206753_20230829.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Grana_Daniela_H206753_20230829.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H206753  \n \nDANIELA GRANA, \nEMPLOYEE \n \nCLAIMANT \nROCKLINE INDUSTRIES, INC.,  \nEMPLOYER \n \nRESPONDENT \nCNA INSURNACE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED AUGUST 29, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE KAREN H. McKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nMarch 13, 2023.  The administrative law judge found that the claimant failed \nto prove she sustained a compensable injury.  After reviewing the entire \nrecord de novo, the Full Commission finds that the claimant proved she \nsustained a compensable bilateral carpal tunnel syndrome injury.  The \nclaimant proved that she was entitled to reasonably necessary medical \ntreatment and a period of temporary total disability benefits.     \nI.  HISTORY \n\nGRANA - H206753  2\n  \n \n \n Daniela Grana, now age 27, testified that she became employed with \nthe respondents as an Auxiliary Machine Operator in 2019.  The claimant \ntestified on direct examination: \nQ.  And as an Auxiliary Machine Operator, what were your \nduties? \nA.  They consist of fixing down machinery, working on the line \nwith packages, putting them into a box, and palletizing them.   \nQ.  Okay.  So fixing down machinery, what did you do in that \nwork? \nA.  If the machinery is jammed up, we go open it up, fix it, get \nit back up to running for the line so the line won’t stop.... \nQ.  So the work that you were doing at Rockline before April \nof 2022, was that all line work? \nA.  Yes.   \nQ.  And was it on a line that was moving as you were working \non it? \nA.  Yes.  The line is always moving.   \nQ.  Okay.  And these different duties that you would do \nthroughout the day, were there ever any duties that did not \nrequire the constant use of your hands? \nA.  No.   \n \n The claimant agreed on cross-examination that she also worked for \nother employers other than the respondents, including Walmart Optical \nLabs and Famous Footwear.  The claimant agreed that she operated a \ncash register and occasionally counted money while employed with \nFamous Footwear.  Additionally, the claimant agreed that she owned her \nown business, MB Creations, where she customized T-shirts and cups.     \nThe parties stipulated that the employee-employer-carrier \nrelationship existed on April 6, 2022.  The claimant testified on direct \nexamination: \n\nGRANA - H206753  3\n  \n \n \n  Q.  Now, in April of 2022, what symptoms did you develop? \n  A.  Pain, numbness, loss of strength. \n  Q.  In what area of my body? \n  A.  Of my wrists....The right one first.   \n  Q.  Okay.  And did you report that? \n  A.  Yes. \n  Q.  Who did you report it to? \n  A.  My supervisor.... \nQ.  Do you recall about how long it was after you reported it \nthat you were sent to a doctor? \nA.  I want to say two weeks.   \n \n The record corroborated the claimant’s testimony.  The claimant \nreceived treatment visits at Conservative Care Occupational Health \nbeginning April 20, 2022.  Dr. Konstantin V. Berestnev reported at that time: \nDaniela Grana is a 26 year-old female, and employee of \nRockline Industries Springdale.... \nEmployer Description of Accident:  Ms. Grana states that she \nhas been having on going pain to her right wrist since April 06, \n2022 but did not report it until April 11, 2022.... \nPatient states that she was turning over packages and \ngradually developed pain in her right wrist.  Patient states that \nshe was seen by a chiropractor.   \nHISTORY OF PRESENT ILLNESS \nDaniela’s primary problem is pain located in the right wrist.  \nShe describes it as aching.  She considers it to be medium.  \nThe problem began on 4/6/2022.  Daniela says that it seems \nto be intermittent.  She has noticed that it is made worse by \ntwisting, lifting.  It is improved with muscle cream, ibuprofen.  \nShe is currently receiving chiropractic therapy which she finds \nhelpful.... \nShe is working full time on regular duty. \nTime with current employer:  2 years.   \n \n Dr. Berestnev assessed “Right wrist extensor tendinitis.  Repetitive \nuse disorder.”  Dr. Berestnev’s Treatment Plan was “Discussed ergonomic \nmodifications with the patient and the company representative.  Best to \n\nGRANA - H206753  4\n  \n \n \nmodify her workplace with engineering solutions to prevent the need to \nmanually flip boxes to attach a label to the opposite side.”  Dr. Berestnev \nstated, “The cause of this problem appears to be related to work \nactivities....Daniela’s recommended Work Status is Regular Duty.”   \n Dr. Berestnev signed a Form AR-3, PHYSICIAN’S REPORT on April \n20, 2022 and diagnosed “Right wrist tendinitis.”  Dr. Berestnev planned \nconservative treatment and he returned the claimant to unrestricted work. \n Dr. Berestnev noted on April 27, 2022, “Patient states that her right \nwrist is about the same, she is still having pain.  Patient states that her left \nwrist is starting to hurt due to over compensating.”  Dr. Berestnev assessed \n“Right wrist extensor tendinitis.  Repetitive use disorder.  Now left wrist \nhurts after she was scraping glue with her left hand....The cause of this \nproblem appears to be related to work activities....Daniela’s recommended \nwork status is Regular Duty.”   \n The claimant followed up with Dr. Berestnev on May 18, 2022:  \n“Patient states that her wrists are about the same, she is still having pain.  \nPatient has been to 6 sessions of physical therapy.”  Dr. Berestnev \nassessed “Symptoms of median neuropathy....Referral for nerve \nconduction velocity study....The cause of this problem appears to be \nrelated to work activities.”     \n The claimant followed up with Dr. Berestnev on May 27, 2022: \n\nGRANA - H206753  5\n  \n \n \nDaniela Grana is a 26 year-old Female, and employee of \nRockline Industries Springdale.... \nMs. Grana states that she has been having on going pain to \nher right wrist since April 06, 2022 but did not report it until \nApril 11, 2022.  She has been seeing her Chiropractor.... \nPatient states that she was turning over packages and \ngradually developed pain in her right wrist.... \nPatient states that she feels like both wrists are hurting a little \nmore.  Patient states that she does not feel like physical \ntherapy helped.... \nDaniela’s primary problem is pain located in the both wrist \n(sic)....The problem began on 4/6/2022.  Daniela says that it \nseems to be constant.  She has noticed that it is made worse \nby using them.  She feels it is not improving.  She is here to \nreview her laboratory studies.... \nASSESSMENT \nLabwork shows elevated ESR and anti-ANA suggestive of \nlupus. \nNumber and Complexity of Problems Addressed:  1 \nundiagnosed new problem with uncertain prognosis. \nTREATMENT PLAN \nNeeds to see PCP. \nMEDICAL CAUSATION \nThe cause of this problem does not appear to be related to \nwork activities. \nRECOMMENDED WORK STATUS \nDaniela’s recommended work status is Regular Duty....The \npatient has been released.   \n \n Dr. Berestnev diagnosed “1.  Other specified disorders of tendon, \nright wrist” and “2.  Other lesions of median nerve, unspecified upper limb.”   \n Dr. Berestnev signed a Form AR-3, PHYSICIAN’S REPORT on May \n27, 2022 and diagnosed “Lupus – not work-related....Needs to see her \nPCP.” \n\nGRANA - H206753  6\n  \n \n \n The claimant’s testimony on cross-examination indicated that she \nwas off work after May 27, 2022.  The claimant testified that she sought \nmedical treatment on her own following Dr. Berestnev’s release.     \n Rachel Hudman, APN noted on May 31, 2022, “Pt was diagnosis \n(sic) with lupus from work after running blood test on Friday.  Pt here to \ndiscuss diagnosis, wrist pain and headaches.”  Ms. Hudman assessed “1.  \nBilateral wrist pain,” “2.  Anti-nuclear factor positive,” and “3.  Fatigue.”   \n Dr. Miles M. Johnson provided a Neurological \nEvaluation/Electrodiagnostic Report on June 23, 2022: \nPatient is a 26-year-old right-handed female with a 2 months \nhistory of bilateral hand pain, numbness, tingling, and \nweakness.  Symptoms are worse at night or with repetitive \nactivity.  Some improvement with braces.  Denies any neck \npain.  Patient has been seen by Dr. Hurtado and is referred \nfor electrodiagnostic testing of the bilateral upper \nextremities.... \nSUMMARY:  Bilateral median and ulnar motor studies are \nnormal.  Right and left median ulnar orthodromic latency \ndifference is mildly abnormal.  Radial sensory response is \nnormal bilaterally.  EMG examination of the bilateral upper \nextremities is within normal limits.   \nASSESSMENT:  Mild bilateral carpal tunnel syndrome.  There \nis no electrodiagnostic evidence of radiculopathy, plexopathy, \ngeneralized peripheral neuropathy or other peripheral nerve \nentrapment syndromes.   \n \n Dr. Johnson recommended “conservative management with wrist \ncock-up splints, nonsteroidals, possibly intracarpal corticosteroids.”   \n Dr. Mark Allard began treating the claimant on July 7, 2022: \n\nGRANA - H206753  7\n  \n \n \n26-year-old right-hand-dominant young lady works at a \nrepetitive manufacturing job comes in with a 3-month history \nof bilateral radial hand numbness and pain.  Dr. Hurtado has \nbeen seeing her and has her in wrist splints which help a little \nbit.  He sent her to therapy which helped a little bit.  It does \nnot wake her up much at night, but consistently bothers her at \nwork.  She occasionally takes an Advil which helps.  It is \nalways her thumb, index and long fingers.  She has as much \nproblem with pain as she does with numbness.  She got nerve \nconduction studies with Miles Johnson that showed mild \nchanges.  I reviewed that report.   \n \n Dr. Allard assessed “Bilateral carpal tunnel syndrome.  Her \nsymptoms are certainly worse than her nerve conduction studies would \nimply.  Cervical spine films look normal.  We will start with scheduled anti-\ninflammatory medicine along with her splints.”   \n Dr. Song Zang noted on August 16, 2022, “Pt was referred for +ANA.  \nIn concern of lupus.”  Dr. Zang assessed “1.  ANA positive” and noted, \n“Clinically not typical for lupus.  Will do some labs to confirm....The fatigue \nis more stress related.  RTC as needed.”   \n Dr. Allard performed a Right Carpal Tunnel Release on August 24, \n2022.  The pre- and post-operative diagnosis was “Right carpal tunnel \nsyndrome.”   \n Dr. Allard’s assessment on or about September 9, 2022 was \n“Bilateral carpal tunnel syndrome, status post right carpal tunnel release.  \nSutures removed today.  She can increase her activity as pain allows.  I do \nnot think she needs any therapy.  She will let us know when she is ready to \n\nGRANA - H206753  8\n  \n \n \ngo back to work and we can write her a note.  I will plan on seeing her here \n4 weeks from now for repeat clinical exam.  She is leaning toward left \ncarpal tunnel release later in the year.”   \n Dr. Allard noted on October 6, 2022, “Pt here today 4 wk f/u Rt CTR.  \nPt states she is doing good, but did notice the pain she was having returned \nafter she went back to work....Surgery date was 08/24/2022.”  Dr. Allard \nassessed “Bilateral carpal tunnel syndrome, status post right carpal tunnel \nrelease.  She has had some radial wrist pain as she has tried to go back to \nher repetitive labor job.  I thought we might build to get her through this \nwithout any therapy, but I will bet occupational therapy helps her get back to \nwork and get her strength back.  We will get her in therapy now and I will \nsee her back in 6 weeks for repeat clinical exam.  She is still considering \nleft carpal tunnel release later this year.”  Dr. Allard provided a WORK \nSTATUS REPORT:  “Daniela had an increase in pain following her right \nhand surgery and missed work Sunday, Monday and Tuesday, October 2-4.  \nShe can return without restrictions.”   \n The claimant received Occupational Therapy visits beginning \nOctober 13, 2022. \n The claimant testified on direct examination: \nQ.  And at some point after surgery, did you return to \nRockline? \n  A.  Yes. \n  Q.  And do you recall about when that was? \n\nGRANA - H206753  9\n  \n \n \n  A.  October, like the 20 – the 25\nth\n, I think. \nQ.  Okay.  Now, when you returned to Rockline, what job did \nyou return to? \n  A.  My same position as Auxiliary. \nQ.  And is the actual work that you’ve been doing since you \nreturned to Rockline the same as what you were doing before \nor is it different? \nA.  It was the same.   \nQ.  And how did you hand react once you returned to work? \nA.  They started bothering me again.   \nQ.  Do you feel like your right hand is better than it was before \nsurgery even though you are working again? \nA.  It is better, but not how I felt before the surgery – or before \nthe hurting or anything.   \nQ.  Okay.  Do you intend to have surgery on your left hand at \nsome point? \nA.  Yes.   \n \n A pre-hearing order was filed on November 2, 2022.  The claimant \ncontended, “The claimant contends she sustained a compensable injury to \nher bilateral hands and wrists.  She contends she is entitled to medical \ntreatment and temporary total disability benefits from May 26, 2022 to a \ndate yet to be determined as a result of her bilateral wrist and hand injuries.  \nClaimant reserves all other issues.”   \n The respondents contended, “The respondents contend that the \nclaimant did not sustain a compensable injury.  After seeking treatment for \nbilateral wrist pain and undergoing conservative treatment, Dr. Berestnev \nopined in his May 27, 2022 report that the claimant has elevated ESR and \nanti-ANA titer suggestive of Lupus and that her current wrist complaints are \nnot work related but the result of her underlying pre-existing condition.”   \n\nGRANA - H206753  10\n  \n \n \n The parties agreed to litigate the following issues: \n1.  Compensability of bilateral injuries to hands and wrists. \n2.  Medical.   \n3.  Temporary total disability benefits from May 26, 2022 \nthrough a date yet to be determined.   \n4.  Attorney fee.   \n \nAfter a hearing, an administrative law judge filed an opinion on \nMarch 13, 2023.  The administrative law judge found that the claimant failed \nto prove she sustained a compensable injury.  The administrative law judge \ntherefore denied and dismissed the claim.  The claimant appeals to the Full \nCommission.  \nII.  ADJUDICATION \nA.   Compensability \nAct 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n(A)  “Compensable injury” means: \n(ii)  An injury causing internal or external physical harm to \nthe body and arising out of and in the course of \nemployment if it is not caused by a specific incident or is \nnot identifiable by time and place of employment, if the \ninjury is: \n(a) Caused by rapid repetitive motion.  Carpal tunnel \nsyndrome is specifically categorized as a compensable \ninjury falling within this definition[.]     \n \nThe Arkansas Supreme Court has recognized that carpal tunnel \nsyndrome is a gradual-onset injury; hence, it is not necessary that the \nemployee prove her injury was caused by rapid repetitive motion.  Freeman \n\nGRANA - H206753  11\n  \n \n \nv. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001), citing \nKildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998).   \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \nArk. Code Ann. §11-9-102(4)(Repl. 2012) additionally provides in \npertinent part: \n(E)  BURDEN OF PROOF.  The burden of proof of a \ncompensable injury shall be on the employee and shall be as \nfollows: \n(ii)  For injuries falling within the definition of compensable \ninjury under subdivision (4)(A)(ii) of this section, the burden of \nproof shall be by a preponderance of the evidence, and the \nresultant condition is compensable only if the alleged \ncompensable injury is the major cause of the disability or need \nfor treatment.    \n \n  Preponderance of the evidence means the evidence having greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 \nArk. App. 269, 101 S.W.3d 252 (2003).  “Major cause” means more than \nfifty percent of the cause, and a finding of major cause shall be established \naccording to the preponderance of the evidence.  Ark. Code Ann. §11-9-\n102(14)(Repl. 2012). \n\nGRANA - H206753  12\n  \n \n \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to meet her burden of proving by a preponderance of \nthe evidence that she suffered a compensable injury to her bilateral hands \nand wrists.”  The Full Commission does not affirm this finding. \n The claimant testified that she became employed as an Auxiliary \nMachine Operator for the respondents in 2019.  The claimant described her \nwork duties as including “fixing down machinery, working on the line with \npackages, putting them into a box, and palletizing them.”  The claimant \ntestified that her work for the respondents required “constant use” of her \nhands.  The claimant testified that she began suffering from pain, \nnumbness, and weakness in her right hand initially beginning in April 2022.  \nThe company physician, Dr. Berestnev, began treating the claimant on April \n20, 2022 and reported, “Patient states that she was turning over packages \nand gradually developed pain in her right wrist.”  Dr. Berestnev assessed \n“Repetitive use disorder....The cause of this problem appears to be related \nto work activities.”  Dr. Berestnev returned the claimant to regular duty.   \n Dr. Berestnev noted during an April 27, 2022 follow-up appointment, \n“Repetitive use disorder.  Now left wrist hurts after she was scraping glue \nwith her left hand....The cause of this problem appears to be related to \nwork activities.”  Dr. Berestnev again returned the claimant to regular duty, \n\nGRANA - H206753  13\n  \n \n \nand he again noted on May 18, 2022, “The cause of this problem appears \nto be related to work activities.”   \n However, Dr. Berestnev stated on May 27, 2022 that diagnostic \nstudies purportedly showed “elevated ESR and anti-ANA suggestive of \nlupus.”  Dr. Berestnev diagnosed “Lupus – not work-related....The cause of \nthis problem does not appear to be related to work activities.”  It is within \nthe Commission’s province to weigh all of the medical evidence and to \ndetermine what is most credible.  Minnesota Mining & Mfg. v. Baker, 337 \nArk. 94, 989 S.W.2d 151 (1999).  In the present matter, the Full \nCommission attaches minimal evidentiary weight to Dr. Berestnev’s \nmodified opinion beginning May 27, 2022 that the claimant’s symptoms \nwere the result of “Lupus.”  In this regard, we note Dr. Zang’s opinion on \nAugust 16, 2022 that the claimant’s symptoms were “Clinically not typical \nfor lupus.”       \n It is within the Commission’s sole discretion to determine the \ncredibility of each witness and the weight to be given to their testimony.  \nGeneral Electric Railcar Repair Servs. v. Hardin, 62 Ark. App. 120, 929 \nS.W.2d 667 (1998).  An administrative law judge’s findings with regard to \ncredibility are not binding upon the Full Commission.  Roberts v. Leo Levi \nHosp., 8 Ark. App. 184, 649 S.W.2d 402 (1983).  In the present matter, the \nFull Commission finds that the claimant was a credible witness.  We find \n\nGRANA - H206753  14\n  \n \n \nthat the claimant’s symptoms were the causal result of her hand-intensive \nwork for the respondents and were not related to the claimant’s other retail \nor clerical employment.  Nor does the probative evidence demonstrate that \nnonwork-related “Lupus” was the cause of the claimant’s problems in her \nbilateral upper extremities beginning in April 2022.   \n Dr. Johnson performed objective electrodiagnostic testing on June \n23, 2022 and reported, “Right and left median ulnar orthodromic latency \ndifference is mildly abnormal.”  Dr. Johnson assessed “Mild bilateral carpal \ntunnel syndrome.”  Dr. Allard reported on July 7, 2022 that the claimant \ncomplained of bilateral hand numbness and pain which resulted from a \n“repetitive manufacturing job.”  Dr. Allard assessed “Bilateral carpal tunnel \nsyndrome.”  Dr. Allard performed a Right Carpal Tunnel Release on August \n24, 2022.   \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that she sustained a “Compensable injury” \nin accordance with Ark. Code Ann. §11-9-102(4)(A)(ii)(a)(Repl. 2012).  The \nclaimant proved that she sustained an injury causing physical harm to the \nbody and arising out of and in the course of employment, which was not \nidentifiable by time and place of occurrence, but was caused by bilateral \ncarpal tunnel syndrome.  The claimant established a compensable injury by \nmedical evidence supported by objective findings, namely the \n\nGRANA - H206753  15\n  \n \n \nelectrodiagnostic testing performed by Dr. Johnson.  The claimant proved \nthat the compensable injury was the major cause of her disability and need \nfor treatment.  The evidence does not demonstrate that the claimant’s \ncarpal tunnel syndrome was caused by Lupus or that her symptoms were \nthe result of employment outside of the claimant’s work for the respondents. \nB.   Medical Treatment \nThe employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  What \nconstitutes reasonably necessary medical treatment is a question of fact for \nthe Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. 358, 676 \nS.W.2d 750 (1984).   \nIn the present matter, the claimant proved that she sustained a \ncompensable bilateral carpal tunnel syndrome injury.  The claimant proved \nthat the medical treatment of record was reasonably necessary in \nconnection with the compensable injury.  Dr. Allard performed a Right \nCarpal Tunnel Release on August 24, 2022.  The claimant testified that, \nalthough she continued to complain of symptoms, surgery performed by Dr. \n\nGRANA - H206753  16\n  \n \n \nAllard had somewhat reduced the level of pain in her right upper extremity.  \nPost-surgical improvement is a relevant consideration in determining \nwhether surgery was reasonably necessary.  Hill v. Baptist Medical Center, \n74 Ark. App. 250, 48 S.W.3d 544 (2001).  The Full Commission finds that \nsurgery performed by Dr. Allard on August 24, 2022 was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nWe recognize that the claimant anticipates undergoing a left carpal tunnel \nrelease in the future.  However, there is not currently a recommendation in \nthe record for such a procedure.   \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she sustained a compensable bilateral carpal \ntunnel syndrome injury.  The claimant proved that the medical treatment of \nrecord was reasonably necessary in accordance with Ark. Code Ann. §11-\n9-508(a)(Repl. 2012).  The claimant’s testimony indicated that she was off \nwork beginning May 28, 2022 and continuing until October 25, 2022.  An \nemployee who has suffered a scheduled injury is entitled to receive \ntemporary disability benefits during her healing period or until she returns to \nwork.  Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 \n(2001).  Dr. Allard provided a WORK STATUS REPORT on October 6, \n2022 and stated, “She can return without restrictions.”  The Full \nCommission finds that the claimant reached the end of her healing period \n\nGRANA - H206753  17\n  \n \n \nno later than October 6, 2022.  Temporary total disability benefits cannot be \nawarded after a claimant’s healing period has ended.  Milligan v. West Tree \nServ., 57 Ark. App. 14, 946 S.W.2d 697 (1997).  We therefore find that the \nclaimant proved she was entitled to temporary total disability benefits from \nMay 28, 2022 through October 6, 2022.  The respondents are entitled to \nany appropriate offset in accordance with Ark. Code Ann. §11-9-411(Repl. \n2012).   \nThe claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \non appeal, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012).   \nIT IS SO ORDERED.        \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \nI must respectfully dissent from the Majority’s determination that the \nclaimant has proved she sustained a compensable bilateral carpal tunnel \nsyndrome injury. \n\nGRANA - H206753  18\n  \n \n \nTo establish a compensable gradual-onset injury, a claimant must \nprove by a preponderance of the evidence that (1) the injury arose out of \nand in the course of his employment; (2) the injury caused internal or \nexternal physical harm to the body that required medical services or \nresulted in disability or death; (3) the injury was caused by rapid repetitive \nmotion; (4) the injury was a major cause of the disability or need for \ntreatment.  Lay v. United Parcel Service, 58 Ark. App. 35, 944 S.W.2d 867 \n(1997); Ark. Code Ann. § 11-9-102(4) (Repl. 2002).  “Carpal tunnel \nsyndrome is specifically categorized as a compensable injury” falling within \nthe definition of rapid repetitive motion. Ark. Code Ann. § 11-9-\n102(4)(A)(ii)(a). \nThe claimant has not proved by a preponderance of the evidence \nthat her carpal tunnel injury arose out of the course and scope of her \nemployment with Rockline Industries.  Most importantly, after multiple \nexaminations of the claimant’s wrist and lab work indicating elevated ESR \nand anti-ANA titer suggestive of lupus, Dr. Konstantin Berestnev attributed \nthe claimant’s ongoing wrist pain to “Lupus – not work-related” and referred \nclaimant to her primary care physician on May 18, 2022, releasing the \nclaimant from his care.  (See Resp. Ex. 1). \nIt is impossible for the Commission to attribute the claimant’s carpal \ntunnel syndrome to a single employer when the claimant was working for \n\nGRANA - H206753  19\n  \n \n \nmultiple employers, and owned her own business, at the time of her injury. \nThe claimant worked for the respondent employer from 2019 through April \nof 2022 with no complaints of wrist pain.  (See Hrng. Tr, Pp. 6-8, 25). \nDuring this time, the claimant worked various other jobs with duties that \ninvolved wrist-intensive activities such as typing or machine work.  (Hrng. \nTr., Pp 12-15).  These included working at Lindsey Management, C&W \nProperties, and Staffmark where she regularly operated a computer and \nlater at Tyson as a machine operator and at Walmart Optical monitoring \nmachinery. Id.  The claimant testified that her work with Walmart involved \n“monitoring the screens,” but “when the machine jams up.  Yes.  I would go \nin and take out the jam.” (Hrng. Tr., P. 13).  In December 2021, the claimant \nbecame employed as a manager at Famous Footwear where she was \nresponsible for opening boxes and rotating and examining shoes when \npurchased; operating the cash register; operating a computer; and counting \nmoney.  (Hrng. Tr., Pp. 13-14, 35).  She was employed with both Famous \nFootwear and Rockline Industries when her complaints of wrist pain began. \n(Hrng. Tr., P. 15).  Finally, at the beginning of 2022, the claimant became \nself-employed at MB Creations, where the claimant would personalize items \nfor customers such as t-shirts and cups.  (Hrng. Tr., P. 16, 35).  There is no \nindication in the record that any of the claimant’s treating physicians were \never notified of the claimant’s concurrent employment. \n\nGRANA - H206753  20\n  \n \n \nThe record is clear that the claimant has failed to prove by a \npreponderance of the evidence that her condition arose out of the course \nand scope of her employment with Rockline Industries.  Throughout her \nemployment with Rockline, the claimant worked multiple jobs concurrently, \nwith each requiring extensive use of her hands and wrists.  At the time her \ncomplaints of wrist pain began, the claimant had been working for a new \nemployer, Famous Footwear, for nearly six months using her hands and \nwrists twenty hours per week.  In the months before her injury arose, \nclaimant began her own business holding, rotating, and manipulating \nobjects.  There is no way to attribute the claimant’s injury to one single \ncause or to any one employer and for this reason the claimant has failed to \nmeet her burden of proving by the preponderance of the evidence that her \nwork with the respondent employer led to her injury. \nFor the reasons stated above, I respectfully dissent. \n  \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":29389,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H206753 DANIELA GRANA, EMPLOYEE CLAIMANT ROCKLINE INDUSTRIES, INC., EMPLOYER RESPONDENT CNA INSURNACE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 29, 2023","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["carpal tunnel","back","wrist","repetitive","neck","cervical"],"fetchedAt":"2026-05-19T22:29:46.202Z"},{"id":"full_commission-H008920-2023-08-29","awccNumber":"H008920","decisionDate":"2023-08-29","decisionYear":2023,"opinionType":"full_commission","claimantName":"John Kunkel","employerName":"Leaffilter North LLC","title":"KUNKEL VS. LEAFFILTER NORTH LLC AWCC# H008920 AUGUST 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Kunkel_John_H008920_20230829.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Kunkel_John_H008920_20230829.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H008920 \n \nJOHN KUNKEL, \nEMPLOYEE \n \nCLAIMANT \nLEAFFILTER NORTH LLC,  \nEMPLOYER \n \nRESPONDENT \nARCH INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED AUGUST 29, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE ANDY L. CALDWELL, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE LEE J. MULDROW, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s order filed May \n17, 2023.  The administrative law judge found that the claimant “should be \ncompelled” to undergo a Functional Capacity Evaluation.  After reviewing \nthe entire record de novo, the Full Commission reverses and vacates the \nadministrative law judge’s opinion.     \nI.  HISTORY \n The parties stipulated that the claimant “sustained a compensable \ninjury to his left lower extremity” on November 2, 2020.  The parties \n\nKUNKEL - H008920  2\n  \n \n \nstipulated that the respondents “have accepted this claim as compensable, \nand paid both medical and some indemnity benefits.”  \n The record indicates that Dr. Gregory Ardoin examined the claimant \nat OrthoArkansas on November 14, 2022: \nLeft foot and ankle exam reveal intact skin.  Mild edema \nnoted.  There is no ecchymosis or erythema....He is able to \nperform single-leg heel raise bilaterally.  He has good range of \nmotion of the ankle and hindfoot.  He has some tenderness \nand swelling of the anterior ankle. \nAssessment/Plan \nImaging:  Three-view standing left ankle x-ray was ordered, \nobtained and interpreted findings include interval joint space \nof 1.8 mm with mild degenerative changes noted.   \nImpression:  Left ankle work-related injury with resulted pain \nand developing arthritis.   \nPlan:  At this point I think he is at MMI.  He will need to be \nseen once or twice a year.  At some point he may require an \nankle fusion or total ankle replacement.  He has arthritis in the \nankle.  I recommend anti-inflammatories.   \nHis work restrictions will include avoid uneven ground, no \nstooping or squatting and avoid ladder climbing.   \nPatient deserves impairment according to the Guides to the \nEvaluation of Permanent Impairment, fourth edition page 83 \ntable 62 for ankle joint space narrowing of 1.8 mm, 8% whole \nperson, 20% left lower extremity and 28% left foot.   \nFollow-up in 6 months.   \n \n Dr. Ardoin diagnosed “1.  Pain of left ankle joint” and “2.  Traumatic \narthropathy-ankle.”   \n Dr. Ardoin signed a Return to Work/School note on November 14, \n2022:  “Please excuse John for 11/14/2022.  John may return to \nwork/school on 11/14/2022.  Activity is restricted as follows:  no working on \n\nKUNKEL - H008920  3\n  \n \n \nuneven ground, stooping, ladder climbing, crawling.  No pushing, pulling, or \nlifting more than 15 pounds.”   \nOn April 12, 2023, the respondents e-mailed a MOTION TO \nCOMPEL FUNCTIONAL CAPACITY EVALUATION.  The MOTION stated \nin part: \n3.  The claim was initially accepted and both medical and TTD \nbenefits were paid.  Orthopedic surgeon, Dr. Phillip Smith, \ntreated claimant between November 2020 and March 2, 2021, \nat which time he ordered a functional capacity evaluation. \n4.  A functional capacity evaluation was done on March 12, \n2021, and was determined to be unreliable.  Thereupon, on \nApril 6, 2021, Dr. Smith released the patient as having \nreached MMI.   \n5.  Pursuant to a change of physician request claimant’s care \nwas assumed by Dr. Gregory Ardoin who ultimately performed \narthroscopic surgery on February 1, 2022.   \n6.  Continuing care included cortisone injections followed with \nDr. Ardoin releasing the patient at MMI on November 14, \n2022.  Dr. Ardoin outlined activity restrictions. \n7.  Claimant is requesting benefits under §505.   \n8.  Respondents have repeatedly requested that claimant \nmake himself available for a functional capacity evaluation to \nobjectively assess and validate recommended physical \nrestrictions.   \n9.  Claimant has adamantly refused respondents’ request for \na post-surgery functional capacity evaluation.   \n \n The respondents moved “for an order compelling a functional \ncapacity evaluation at respondents’ expense.”   \n The claimant responded on April 14, 2023 and stated in part: \n2.  Respondents have failed to cite any rule, case or other law \nin support of their Motion. \n3.  Respondents’ Motion is not supported by facts or law. \n\nKUNKEL - H008920  4\n  \n \n \n4.  The Requested Functional Capacity Evaluation has not \nbeen recommended by the Claimant’s authorized treating \nphysician, Dr. Troy Ardoin.... \n6.  The Respondents are requesting a functional capacity \nevaluation.  Again, Respondents have cited no legal or factual \nbasis for same.  The undersigned is not aware of any specific \nstatutory authority or rule allowing for the Respondents to \nobtain such an evaluation.  Ark. Code Ann. §11-9-511 allows \nfor an examination by a physician but only if it is reasonable \nand necessary.  Respondents are not requesting an \nIndependent Medical Examination.   \n7.  There has been no request for an FCE by the Claimant’s \nauthorized treating physician.... \n \n The claimant requested “that the Respondents’ Motion to Compel \nFunctional Capacity Evaluation be denied and for any and all other relief to \nwhich he may be entitled, including attorney’s fees.”      \n A pre-hearing order was filed on April 18, 2023.  According to the \npre-hearing order, the parties agreed to litigate the following issues: \n1.  Whether the claimant must submit himself for and undergo \na Functional Capacity Evaluation (FCE) at the \nrespondents’ request for the purposes of determining his \nphysical limitations and restrictions, if any; the extent of his \npermanent anatomical impairment, if any, and any and all \nother issue(s) relevant to this claim which fall within the \nexpertise of the FCE examiner/evaluator. \n2.  The parties specifically reserve any and all other issues for \nfuture litigation and/or determination.   \n \nThe case was submitted on the record.  An administrative law judge \nfiled an OPINION AND ORDER GRANTING RESPONDENTS’ MOTION \nTO COMPEL FUNCTIONAL CAPACITY EVALUATION (FCE) FILED MAY \n17, 2023.  The administrative law judge found: \n\nKUNKEL - H008920  5\n  \n \n \n1. The parties’ stipulations contained in the prehearing order \nfiled April 18, 2023, hereby are accepted as facts. \n2. The respondents’ motion requesting the claimant should \nbe compelled to submit himself for a current FCE at the \nrespondents’ expense should be and hereby is \nGRANTED. \n3. The claimant’s and respondents’ attorneys shall confer \nand cooperate in scheduling and ensuring that the \nclaimant attends an FCE with Mr. Rick Byrd, of Functional \nTesting Centers, Inc., at their earliest possible \nconvenience.   \n \nThe claimant appeals to the Full Commission.  \nII.  ADJUDICATION \n The parties stipulated that the claimant sustained a compensable \ninjury to his left lower extremity on November 2, 2020.  The parties \nstipulated that the respondents provided medical treatment and some \nindemnity benefits.  Dr. Ardoin opined on November 14, 2022 that the \nclaimant had reached maximum medical improvement.  Dr. Ardoin assigned \nan 8% whole-person  impairment rating and released the claimant to \nrestricted work.   \n On April 12, 2023, the respondents e-mailed a motion to “compel” \nthe claimant to participate in a Functional Capacity Evaluation.  The \nrespondents stated that they “have repeatedly requested that claimant \nmake himself available for a functional capacity evaluation to objectively \nassess and validate recommended physical restrictions.”  However, the Full \nCommission notes that the treating physician of record, Dr. Ardoin, has not \n\nKUNKEL - H008920  6\n  \n \n \nrecommended that the claimant undergo a Functional Capacity Evaluation.  \nWe also note that there is limited medical evidence before the Commission \nand there has been no testimony of record.  In addition, there has not been \nan adjudication of record, award, or denial of benefits by an administrative \nlaw judge or the Full Commission.  There are no pleadings from either party \nother than the two opposing motions.  Nor has the claimant filed a request \nfor additional medical treatment or indemnity benefits.  Neither case cited \nby the administrative law judge, North Hills Surgery Center v. Otis, 2021 \nArk. App. 468, 638 S.W.3d 323, and Eldridge v. Pace Industries, LLC, 2021 \nArk. App. 245, 625 S.W.3d 734, can be interpreted as appellate authority \nsupporting a finding that the claimant in the present matter should be \ncoerced into undergoing a Functional Capacity Evaluation. \n Based on the current record before us, the Full Commission reverses \nand vacates the administrative law judge’s order compelling the claimant to \nparticipate in a Functional Capacity Evaluation at Functional Testing \nCenters, Inc.   \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n\nKUNKEL - H008920  7\n  \n \n \nDISSENTING OPINION \nI must respectfully dissent from the Majority’s determination that the \nclaimant should not be compelled to undergo a Functional Capacity \nEvaluation. \nThe Act provides and “[a]n injured employee claiming to be entitled \nto compensation shall submit to such physical examination and treatment \nby another qualified physician, designated or approved by the Workers’ \nCompensation Commission, as the commission may require from time to \ntime if reasonable and necessary.”  Ark. Code Ann. §11-9-511(a).  “Such \nphysician as the employee, employer or insurance carrier may select and \npay for may participate in the examination if the employee, employer, or \ninsurance carrier so requests.”  Ark. Code Ann. §11-9-511(c).  It is well \nsettled under our rules that a Functional Capacity Exam (FCE) constitutes \n“treatment” under the Act.  Gansky v. Hi-Tech Eng’g, 325 Ark. 163, 924 \nS.W.2d 790 (1966); Sanders v. Backus Paint & Body Shop, 2006 Ark. App. \nLEXIS 783 (2006).  This is especially relevant for questions of “additional \ntesting, physical therapy, work hardening, and/or a change to the \nimpairment rating.”  S. Tel. Const. Co. v Harris, No. CA06-921, 2007 Ark. \nApp. LEXIS 228 (2007). \nIn the present case, the respondent has made it clear that its \npurpose for compelling an FCE is to assist the Commission in determining \n\nKUNKEL - H008920  8\n  \n \n \nthe relevancy of vocational rehabilitation and the full extent of the claimant’s \nimpairment.  These purposes are strictly within the purview of the \nCommission, and the Commission, therefore, has the authority to direct the \nclaimant to submit to an FCE at the respondents’ expense.  I, therefore, \nagree with the ALJ’s findings that the claimant should be compelled to \nundergo a Functional Capacity Evaluation.  \nFor the reasons stated above, I respectfully dissent.     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":11213,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H008920 JOHN KUNKEL, EMPLOYEE CLAIMANT LEAFFILTER NORTH LLC, EMPLOYER RESPONDENT ARCH INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 29, 2023","outcome":"reversed","outcomeKeywords":["reversed:1","vacated:1"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T22:29:46.210Z"},{"id":"alj-H107962-2023-08-29","awccNumber":"H107962","decisionDate":"2023-08-29","decisionYear":2023,"opinionType":"alj","claimantName":"Charles Axsom","employerName":"Baptist Health Systems","title":"AXSOM VS. BAPTIST HEALTH SYSTEMS AWCC# H107962 AUGUST 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//AXSOM_CHARLES_H107962_20230829.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"AXSOM_CHARLES_H107962_20230829.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H107962 \n \nCHARLES W. AXSOM, EMPLOYEE        CLAIMANT \n \nv. \n \nBAPTIST HEALTH SYSTEMS,               \nSELF-INSURED EMPLOYER               RESPONDENT \n \nCLAIMS ADMINISTRATIVE SERVICES, TPA            RESPONDNET \n \nOPINION FILED AUGUST 29, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the  18\nth\n day of July, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant   is   represented   by   Ms.   Evelyn E.   Brooks,   Attorney-at-Law,   Fayetteville, \nArkansas. \n \nRespondents  are  represented  by  Mr.  Jarrod  S.  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n  \n A  hearing  was  conducted  on  the  18th  day  of  July, 2023,  to  determine  the  \nclaimant’s  entitlement  to  additional  benefits,  specifically  additional  medical  treatment \nassociated with complex regional pain syndrome as a result of a right knee injury.  A copy \nof the Prehearing Order which was dated May 9, 2023, was marked “Commission Exhibit \n1” and made part  of  the  record  without  objection.    The  Order  provided  that the parties \nstipulated that the Arkansas Workers’ Compensation has jurisdiction of the case and that \nthere  was  an  employer/employee  relationship  which existed  on  or about  September 4, \n2021, when the claimant suffered a compensable, work-related injury to his right knee.   \nThe  respondents  accepted  the  claim  as  compensable  and  were  paying  a  ten  percent \n(10%)  permanent  partial  impairment  to  the  claimant  at  the  time  of  the  hearing.  \n\nAXSOM – H107962 \n \n2 \n \nAdditionally, it was stipulated that claimant’s prior attorney, Mr. Andy Caldwell had a lien \nin regard to this claim.  \n The  claimant’s  and  respondent’s  contentions  are  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire and  made  a  part  of  the  record  without \nobjection.  The sole witness to testify was the claimant, Charles M. Axsom.  The claimant \nsubmitted two (2) exhibits.  “Claimant’s Exhibit One” consisted of 198 pages of medical \nreports with an index that was admitted without objection.  “Claimant’s Exhibit Two” was \nfound to not be admissible due to the fact it was furnished to the respondents within the \nseven-day  cutoff  period  prior  to  the  hearing.    The  exhibit  was  allowed  to  be  proffered.  \nThe respondents submitted two (2) exhibits without objection, with “Respondents’ Exhibit \nOne”   consisting  of  medical   records   consisting   of 32   pages   with   an   index,   and \n“Respondents’ Exhibit Two” consisting of 5 pages of forms and correspondence with an \nindex.    From  a  review  of  the  record  as  a  whole,  to  include  medical  reports  and  other \nmatters properly before the Commission, and having had an opportunity to observe the \ntestimony and demeanor of the witness, the following findings of fact and conclusions of \nlaw are made in accordance with Ark. Code Ann. §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The  Arkansas  Workers’  Compensation Commission  has  jurisdiction \nover this claim. \n \n2.  That an employer/employee relationship existed on September 4, 2021, \nthe  date  that  the  claimant  suffered  a  compensable  injury  to  his  right \nknee. \n  \n3.  Respondents  have  accepted  and  are  paying  a  ten  percent  (10%) \npermanent partial impairment to the claimant. \n \n4. The claimant’s prior attorney,  Mr.  Andy  L.  Caldwell,  has  filed  a  lien  in \nthis matter. \n\nAXSOM – H107962 \n \n3 \n \n  \n5.  That  the  claimant  has  proven,  by  a  preponderance  of  the  credible \nevidence,   that   the   additional   medical   treatment,   specifically   the \ntreatment for complex regional pain syndrome is both causally related \nand  reasonably  necessary  for  the  treatment  of  the  work-related  right \nknee injury. \n    \n6.  If not already paid, the respondents  are ordered to pay for the cost of \nthe transcript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The claimant, Charles Axsom, testified he would turn fifty-nine (59) years old on \nAugust 17 and had been working for the respondent since February of 2020 as a painter \nand  also  worked  on  wall-paper,  flooring,  sheet  rocking,  and  fire  proofing.    He  had  no \nproblem performing his work prior to September 4, 2021.  On that date, he went out “fixing \nto  head out for lunch, go back to the main hospital.  That’s where we clocked in and \nclocked out.”     “When I went in to get into the van, I put in, they were standing at the \ndoor and we’ve got that running board on the step side, and when I went up to get on it, \nwhen I put my foot on it, the running board fell.”  (Tr. 6, 7)  He went on to state when he \nfell,  his  right  knee  popped  and  that  he  reported  his  injury.    He  returned  to  work  that \nTuesday and continued to climb a ladder.  After the accident, he continued to work light \nduty from September 13\nth\n through October 19\nth\n, and then had surgery by Dr. Tucker at \nOrthoArkansas.  He suffered from “mild pain” in his right inner knee. (Tr. 8, 9)  He walked \non crutches for about eight (8) months which started before the surgery.  After the surgery, \nhe testified that his symptoms changed and that “my ankle started hurting, my blood in \nmy  foot,  it  started  out  at  my  big  toe  and  it  progressed.    It  went  from there  to,  and  you \nknow, it surged, you know, it just comes up my knee.  I can’t, it just does different things.  \nBut I mean, but it got worse by swelling.  It got worse by the pain.  It was horrible to deal \n\nAXSOM – H107962 \n \n4 \n \nwith.”  He hurt in regard to his right leg, his foot, calf, ankle, and from the bottom  of his \nfoot  to  his  knee  and  sometimes to his thigh.  When he sits down, it “aggravates that \nnerve.”  These symptoms have been present since the surgery.  He also admitted that he \nhad hurt his back in 2018, but he had not filed a workers’ compensation claim in regard \nto the injury, and was not having any back trouble.  He had received physical therapy and \ncurrently  was  seeing  Doctor  Christine  Wagner  and  Doctor  Robin.    He ended  his  direct \ntestimony by saying that he wanted to return to work and that sometimes the pain goes \naway for thirty (30) minutes to an hour but returns. (Tr. 10-13)    \n  Under  cross-examination,  the  claimant  was  questioned  about  testifying  in  his \ndeposition that he had never had any problem with his right knee and his response was \n“I tell you, sir, I didn’t remember any of that.”  He admitted that at the time of the deposition \nhe provided he never had any diagnostic studies of his right knee, but since that time, his \nlawyer had shown him “some stuff” that he did not remember.  He admitted seeing his \nmedical records and being shown an MRI for his knee.  The following questioning then \noccurred: \n Q:    You  had  pain  radiating  down  your  knee  in  2018  at  a  9  on  a  10  point \nscale? \n \n A:  Sir, I don’t remember, but if that’s what it says, yes, sir. \n \nQ:  The judge is going to see if it’s right knee pain requiring an MRI on page \n13 of your medical packet.  You’ve seen that with your lawyer, right? \n \n A:  Yes sir. \n \nQ:  So when you told me at your deposition that you’d never had any right \nknee  problems  or  never  had  any  diagnostic  tests,  that  wasn’t  a  true \nstatement, was it? \n \nA:  Sir, I didn’t remember it.  I did have a mask (sic) on it, but it wasn’t like \nthis right here.  I don’t remember. (Tr. 14) \n\nAXSOM – H107962 \n \n5 \n \nQ:    Okay.    And  we  know,  even  from  your  description  here  today,  the \naccident only involved your right knee, right?  You said you stepped on the \nrunning board you had a twisting and popping sensation with the right knee \nonly, right? \n \nA:  Right. \n \nQ:  There was no involvement involving you toes, your feet or your ankle or \nanything like that, is that right? \n \nA:  I still stepped on my foot, but what I actually injured was my knee. \n \nQ:  Yes sir.  So you had no injury or symptoms in your toes or your ankle \nright after the accident, right? \n \nA:  Right. \n \nQ:    I  went  through  your  medical  exhibits and I don’t see mention of the \nwords, foot, ankle, or toes or any of that until April of 2022.  Did you speak \nthat? \n \nA:  Yes, sir.  2022. \n  \nThe  claimant  also  agreed  there  was  no  mention  of  chronic  regional  pain  syndrome, \n(CRPS), until May 31 of 2022, which was nine (9) months after the accident. (Tr. 16, 17)  \nHe admitted his right foot was not injured in the accident and that he had no reason to \ndispute the records that Dr. Tucker placed him at MMI and released him for his right knee. \n(Tr. 18, 19)    \n On re-direct, the claimant testified that in his deposition he did not recall an MRI of \nhis right knee.  He did recall volunteering he had an injury while working for Century.  In \nregard  to  his  surgeries,  his  first  one  was  November  1\nst\n,  and  the  second  one  was \nDecember 6\nth\n. (Tr. 24, 25) \n “Claimant’s Exhibit Ones” initial medical consisted of a clinic note dated September \n7, 2021, which provided the claimant presented to discuss concerns about his right knee \nwhich  had  begun  on  September  4,  2021.    An  x-ray  provided  for  no  fractures  or \n\nAXSOM – H107962 \n \n6 \n \ndislocations with mild degenerative changes.  The assessment provided for a decreased \nrange of motion and mentioned that  an MRI was going to be ordered.  It also provided \nthat  the  claimant  could  return  to  work  the  following  day on  light  duty.    Crutches  were \nprescribed. (Cl. Ex. 1, PP. 1-7)   \n Claimant  presented  to  Dr.  James  Tucker  on  September  21,  2021.   The  report \nprovided  the  claimant  was  to  stay  on  crutches  and  that  the  MRI  provided  for  a  medial \nmeniscal    radial    type    tear,    and  a   Velcro   hinged   knee   brace   for    the    MCL    was \nordered.  (Cl. Ex. 1, PP. 8-16)   A  return  to  work  slip  for  sedentary  duty  was  provided. \n(Cl. Ex. 1, P. 17)  The claimant returned to OrthoArkansas on September 26, 2021, and \nsurgery was later performed by Dr. Tucker on November 2, 2021, for repair of the medial \nmeniscus. (Cl. Ex. 1, PP. 18-31)  An MRI dated November 17, 2021, provided for findings \nsuspicious of a re-tear involving the inferior meniscal surface. (Cl. Ex. 1, PP. 32-33)  The \nclaimant then returned to Dr. Tucker on November 23, 2021, for a follow-up after a fall \ndue  to  his  crutches  and  the  report  confirmed  a  showing  of  a  re-tear  of  his medial  and \nlateral meniscus with a sprain of his MCL. (Cl. Ex. 1, PP. 34-37) \n A  second  surgery  involving the claimant’s  right  knee  occurred  on  December  6, \n2021. (Cl. Ex. 1, PP. 38-41)  The claimant then returned to Dr. Tucker for a follow-up on \nDecember 22, 2021, after an initial physical therapy treatment. The report provided that \nthe claimant was doing okay but had an increase in pain since surgery.  A new knee brace \nwas  ordered.  (Cl.  Ex.  1,  PP.  44-50)    The  claimant  continued  to  present  for  multiple \nphysical  therapy  sessions  and  returned  to  Dr.  Tucker  on  February  8,  2022.  The  major \ncomplaint  at  the  time  of  the  visit  was  continued  and  increasing  pain  down  the  L4 \ndermatome/saphenous nerve distribution and the claimant indicated this comes on when \n\nAXSOM – H107962 \n \n7 \n \nhe  had  something  press  against  his  posterior  thigh.    An  EMG  nerve  study  was \nrecommended, as well as continued therapy. (Cl. Ex. 1, PP. 55-58) \n The claimant continued to receive physical therapy and presented to Dr. Cayme \nat  OrthoArkansas  on  February 21, 2022, for  a  nerve  conduction  study.  The  initial \nstudy  provided  for  a  normal  study  with  no  electrodiagnostic  evidence  of  a  focal \nnerve  entrapment,  generalized  peripheral  neuropathy,  or  right  lumbar  radiculopathy. \n(Cl.  Ex.  1,  PP.  60-64)    However,  a  revised  report  of  the  same  date  provided  for  an \nabnormal  electrodiagnostic  study  with  electrodiagnostic  evidence  of  a  right  axonal \nsaphenous  neuropathy.    There  was  no  electrodiagnostic  evidence  of  a  generalized \nperipheral  neuropathy,  other  focal  nerve  entrapment, or right lumbar radiculopathy. \n(Cl. Ex. 1, PP. 65-66) \n The claimant returned to Dr. Tucker on February 23, 2022, and also on March 16, \n2022,  after  physical  therapy.  The  report  from  March  16,  2022,  provided  that  the EMG \nnerve conduction study provided no signs of nerve compression and was felt to be normal, \nbut  that  the  claimant  continued  to  have  dysesthesias  along  the  saphenous  nerve \ndistribution which was aggravated by sitting in a chair. (Cl. Ex. 1, PP. 67-71) \n Physical  therapy  regarding  the  right  knee  continued  and  the  claimant  was \ninstructed to remain off work until further notice. (Cl. Ex. 1, PP. 74-75)  The claimant was \nthen referred to Dr. Paulus on March 28, 2022.  Dr. Paulus agreed with Dr. Tucker that \nmuch of the radiating leg symptoms of the medial knee to the medial ankle fit with the \nsaphenous  nerve  distribution,  but  by  continuing  to  the  dorsum  of  the  foot,  it   was \natypical  for  saphenous  neuropathy  and  could  represent  an  L5  radicular  pattern.  \n(Cl. Ex. 1, PP. 76-81)  \n\nAXSOM – H107962 \n \n8 \n \n After additional physical therapy, the claimant returned to Dr. Tucker on April 12, \n2022.    The  report  provided  the  claimant had  a  saphenous  nerve  injury  with  a  positive \nTinel’s, with pressure against the posterior.  An MRI was recommended and the claimant \nwas again instructed to remain off of work. (Cl. Ex. 1, PP. 83-87)  Two weeks later, the \nclaimant returned to Dr. Paulus.  The report provided that the claimant had presented with \nthree (3) months of “dull, aching, throbbing” low back pain with “sharp, shooting, stabbing, \ntingling, numb” referral into the right leg that began after a knee surgery.  The bilateral \nsaphenous  nerve  conduction  studies  performed  on  March  28,  2022,  revealed a \nsignificantly  lower  right-sided nerve  amplitude  in  comparison to  the  left  and  Dr. Paulus \nopined  that  this  was  “confirmatory  for  saphenous  neuropathy,”  axonal  in  nature. \n(Cl. Ex. 1, PP. 88-92)  A clinic note from Dr. Tucker on the same date of April 26, 2022, \nprovided the claimant had marked quad atrophy and was going to be placed back into \ntherapy.  (Cl.  Ex.  1,  PP.  93-96)    An  MRI  of  the  right  lower  extremity  provided  for  an \nunremarkable evaluation of the right thigh and showed no abnormality that could cause \nsaphenous nerve compression. (Cl. Ex. 1, P. 97) \n The claimant returned to Dr. Paulus on May 31, 2022, who opined the claimant’s \npresentation had changed over the last month, with pain now extending into the dorsum \nof his foot with a new onset of vasomotor and sudomotor changes.  He opined that the \nclaimant had developed Type 2 Chronic Regional Pain Syndrome. (Cl. Ex. 1, PP. 98-102)  \nDr.  Tucker  also  issued  a  clinic  note  of  the  same  date  which  provided  the  claimant \ncontinued to suffer from saphenous neuropathy. (Cl. Ex. 1, PP. 103-106)  \n On June 15, 2022, the claimant was  referred by Dr. Paulus to Dr. Brent Walker, \nfor  possible  complex  regional  pain  syndrome  of  his  lower  extremity.    Dr.  Walker  noted \n\nAXSOM – H107962 \n \n9 \n \nthat the claimant’s right knee was reddened and swollen and that there was a temperature \nasymmetry and consequently, he ordered a triple phase bone scan in regard to possible \ncomplex regional pain syndrome of the right lower extremity. (Cl. Ex. 1, PP. 107-112)  The \nbone scan was performed on June 21, 2022, and it provided that there was decreased \nactivity on all three (3) phases within the right foot which could be related to the disuse of \nthe right leg.  It also noted that although rare, this pattern had also been described with \ncomplex  regional  pain  syndrome.  (Cl.  Ex.  1,  PP.  113-114)    The  claimant received  a \nsympathetic nerve block administered by Dr. Walker on June 28, 2022, on July 5, 2022, \nand also on July 12, 2022. (Cl. Ex. 1, PP. 115-120)  Claimant then returned to Dr. Walker \non July 15, 2022,  who assessed him  with complex regional pain syndrome of the right \nlower  extremity.    Complex  regional  pain  syndrome  has  an  uncertain  progress  and  can \npossibly reactivate months and even years after the initial insult. (Cl. Ex. 1, PP. 121-127)  \nThe claimant received additional right lumbar sympathetic blocks by Dr. Walker, based \nupon the diagnosis of complex regional pain syndrome of the lower extremity on August \n4, 9, and the 16, of 2022. (Cl. Ex. 1, PP. 128-133)  Dr. Walker issued a clinical note on \nAugust  25,  2022,  which  provided  the  claimant was  returning  after  six  (6)  lumbar \nsympathetic  nerve  blocks  and  was  seeing  an  improvement  over  the  last  three  (3) \ninjections and no longer had a generalized pain, but had a more specific pain into the web \nof  his  toes  and  dorsum  of  his  foot,  with  continued  pain  in  his  right  knee  and  with a \ndecreased range of motion. (Cl. Ex. 1, PP. 134-140) \n The  claimant  returned  for  additional  sympathetic  nerve  blocks  on  August  30, \nSeptember 6 and the 13, of 2022.  (Cl. Ex. 1, P. 141-146)  On September 23, 2022, Dr. \nWalker  issued  an  additional  clinic  note  which  provided  the  claimant  might  be  a  good \n\nAXSOM – H107962 \n \n10 \n \ncandidate  for  a  referral  to  UAMS  and  their  CRPS  program.    He  opined  that  it  was  his \nopinion that the claimant would not respond to any additional sympathetic nerve blocks.   \n(Cl. Ex. 1, PP. 147-154)  Another clinic note was issued by Dr. Walker on October 21, \n2022, which again provided under assessment for the diagnosis of complex regional pain \nsyndrome of the right lower extremity. (Cl. Ex. 1, PP. 155-163) \n The claimant was then seen by Dr. Ethan Schock on November 17, 2022, with a \nclinic addendum issued on February 27, 2023, which provided that the opinion he issued \nwas limited to the orthopedic related issues of the right knee and the neurologic/complex \nregional pain syndrome involving the right knee and the lower extremity diagnosis.  He \nopined the claimant had reached MMI with respect to his right knee work-related injury \nand  found  a  twelve  percent  (12%)  whole  person  permanent  partial  impairment.    On \nFebruary 27, 2023, Dr. Schock issued an addendum which provided he saw no way to \nmodify  his November  17,  2022,  assessment  based  upon  the  question  of  “chronic \nchondromalacia.” (Cl. Ex. 1, PP. 163a-168) \n On  December  15,  2022,  Dr.  Wagner  issued  a  clinic  note  which  provided  the \nclaimant  was  seen  for  management  of  his  right  lower  extremity  complex  regional  pain \nsyndrome.    Unfortunately,  he was  in  the  chronic  phase.    Symptoms were  starting  to \nradiate to the mid-thigh level and he had not heard about a second opinion with UAMS.  \nHe had been assessed with complex regional pain syndrome of the right lower extremity \nand  his  work  restrictions  were  continued.  (Cl.  Ex.  1,  PP.  169-180)    An  OrthoArkansas \nclinic note dated December 15, 2022, again made an assessment of complex regional \npain syndrome of the right lower extremity. (Cl. Ex. 1, PP. 181-189) \n\nAXSOM – H107962 \n \n11 \n \n Finally, claimant was seen by Dr. Cale White and Dr. Jonathan Goree on April 25, \n2023.  The report provided that the right lower extremity pain was consistent with complex \nregional  pain  syndrome  and  the  plan  called  for  a  DRG stimulator assessment, a \npre-operative  neuropsych  evaluation,  a  preoperative  MRI,  and  counseling  on  smoking \ncessation. (Cl. Ex. 1, PP. 190-195) \n The respondents submitted  two (2) exhibits which were admitted into the record \nwithout objection.  The first exhibit consisted of 32 pages of medical reports with an index. \nAn MRI of the lumbar spine dated June 21, 2012, provided the claimant had narrowed \ndisc spaces at the L3-4 and at the L4-5 disc space with a right paracentral disc herniation \nslightly indenting the thecal sac and abutting the right S1 nerve root. (Resp. Ex. 1, P. 1)  \nA second lumbar spine MRI was taken on April 9, 2014, which provided for development \nof disc degeneration with left paracentral disc protrusion at the L2-3, with no change of \nthe left disc protrusion at L3-4.  Additionally, there was no change in the right paracentral \ndisc protrusion at L5-S1 with minimal mass affect on the right S1 nerve root.  There was \nno  change  in  the  right  posterolateral  annual  tear  with  a  small  protrusion   at   L4-5.  \n(Resp. Ex. 1, PP. 2-3) \n A  chart  note  dated  April  21,  2014, by  Dr  Regan  Gallaher  provided  for  right  hip \narthropathy and lumbar radiculopathy. (Resp. Ex. 1, P. 4)  A myelogram dated June 6, \n2014,  provided  for  a  L2-3  left  subarticular  disc  protrusion  contracting  and  posterior \ndeviating  the  descending  left  L3  nerve  roots.   An L2-3  left  foraminal  disc  protrusion \ncontacted the exiting left L3 nerve roots with mild left neural foraminal narrowing.  L3-4 \nforaminal  disc  protrusions  contacted  the  exiting  left  L3  nerve  roots  without  neural \nforaminal narrowing. (Resp. Ex. 1, PP. 5-7) \n\nAXSOM – H107962 \n \n12 \n \n The records also provided that on December 31, 2014, the claimant presented to \nthe ER at Baptist Medical Center for alcohol detoxification and had presented to the ER \nintoxicated with elevated liver enzymes and back pain. (Resp. Ex. 1, PP. 8-10).  A report \nby  Dr.  Jacob  Abraham  dated  August  18,  2015,  provided  the  claimant  had  lumbar \nspondylosis, lumbosacral and thoracic radiculitis, and lumbar disc disruption.  In addition, \na  letter  from  Dr.  Jack  Cates  addressed  to  Dr.  Timothy  English  dated  October  1, \n2015,  provided  the  claimant  suffered  from  a  right  hand  that  was  dry  and  flakey.  \n(Resp. Ex. 1, P. 12) \n An MRI of the claimant’s right knee dated May 12, 2016, provided for mild medical \nosteoarthritis with no evidence of acute internal derangement. (Resp. Ex. 1, P. 13)  The \nrespondents also provided a chart note from Dr. Joshua Garner dated November 7, 2018.  \nThe note provided for vertebral subluxation complex. (Resp. Ex. 1, PP. 14-18)  An EMG \nnerve  conduction  study  dated  February  21,  2022,  was  previously  reviewed  in  the \nclaimant’s documentary evidence. (Resp. Ex. 1, PP. 19-20) \n An Impairment Evaluation Summary dated January 11, 2023, was also made part \nof the record which provided the claimant had a “4% Whole Person, 10% Lower Extremity \nimpairment due to a loss of motion and also a 4% Whole Person, 10% Lower Extremity \nimpairment when rated using a diagnosis based impairment approach.”  The report also \nprovided  that  the  claimant  had  a  documented  surgical  and/or  medical  history  which \nindicated a diagnosis-based impairment was applicable. (Resp. 1, PP. 21-25) \n Finally,  an  IME  from  Dr.  Carlos  Roman  discussed  the  various  treatments  and \ndiagnoses  the  claimant  received  from  multiple  doctors,  as  well  as  his  past  history  of \nneuropathy and general and severe osteoarthritis.  He opined that the claimant did not fit \n\nAXSOM – H107962 \n \n13 \n \nthe criteria for complex regional pain syndrome. (Resp. Ex. 1, PP. 26-28)  Additionally, in \na clinic note for the claimant dated April 5. 2023, Dr.  Roman opined that the bone scan \nwould not in any way conclude complex regional pain syndrome.  He also opined that the \nIovera procedure for the right knee pain was indicated for severe osteoarthritic patients \ncontemplating a right total knee arthroplasty and/or post arthroplasty surgeries and the \nclaimant did not fit the criteria for an Iovera knee procedure. (Resp. Ex. 1, PP. 29-30)     \n The respondents second exhibit consisted of an AR-C Form filed on September \n30, 2021, which provided the claimant had suffered injuries to his right knee and other \nbody  parts.  (Resp.  Ex.  2,  P.  1)    The  AR-2  form  filed  by  the  respondents  provided  the \nrespondents had accepted the compensability of the right knee and that all benefits due \nhad been or were in the process of being paid. (Resp. Ex. 2, P. 2)  Additionally, attorney \nAndy  Caldwell,  claimant’s  previous  attorney,  asserted  a  lien  pursuant  to  Ark. Code \nAnn.  §  16-22-304  after  the  claimant  informed  him  he  no  long  wanted  Mr.  Caldwell  to \nrepresent him.  (Resp. Ex. 2, P. 3)  Finally, the respondents provided a list of available \njobs that were forwarded to the claimant.  (Resp. 2, P. 4)          \n      DISCUSSION AND ADJUDICATION OF ISSUES \nIn the present matter, the parties stipulated the claimant sustained a compensable \ninjury on September 4, 2021.  The claimant is therefore not required to establish “objective \nmedical findings” in order to prove that he is entitled to additional benefits. Chamber Door \nIndus., Inc. v Graham, 59 Ark. App. 224, 956 S.W.2d 196 (1997) \nHowever, when assessing whether medical treatment is reasonably necessary for \nthe treatment of a compensable injury, we must analyze the proposed procedure and the \ncondition  that  it  is  sought  to  remedy.   Deborah  Jones  v.  Seba,  Inc., Full  Workers’ \n\nAXSOM – H107962 \n \n14 \n \nCompensation filed December 13, 1989. (Claim No. D512553).  The respondent is only \nresponsible  for  medical  services  which  are  causally  related  to  the  compensable  injury.  \nTreatments  to  reduce  or  alleviate  symptoms  resulting  from  a  compensable  injury,  to \nmaintain the level of healing achieved, or to prevent further deterioration of the damage \nproduced by the compensable injury are considered reasonable medical services.  Foster \nv. Kann Enterprises, 2009 Ark. App. 746, 350 S.W.2d 796 (2009).  Liability for additional \nmedical  treatment  may  extend  beyond  the  treatment  healing  period as  long  as  the \ntreatment is geared toward management of the compensable injury. Patchell v. Wal-Mart \nStores, Inc., 86 Ark. App. 230, 180 S.W.3d 31 (2004). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe  Arkansas  Workers’  Compensation  Act   and   must   sustain   that   burden   by   a \npreponderance of the evidence.  Dalton v. Allen Engineering Co., 66 Ark. App 260, 635 \nS.W.2d 543.  Injured employees have the burden of proving by a preponderance of the \nevidence  that  the  medical  treatment  is  reasonably  necessary  for  the  treatment  of  the \ncompensable injury. Owens Plating Co. v. Graham, 102 Ark. App 299, 284 S.W. 3d 537 \n(2008).  What constitutes reasonable and necessary treatment is a question of fact for \nthe Commission. Anaya v. Newberry’s 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008).  \nThe claimant was injured when he stepped on the running board of a vehicle and \nthe  running  board  collapsed.    The  testimony  provided  he  worked  the  remainder of \nSeptember 4, 2021, and worked light duty from September 13 through October 19, 2021. \nThe claimant was treated by Dr. James Tucker who ordered an MRI and who diagnosed \na  medial  meniscal  radial  tear  and  performed  the  initial  surgery  to  repair  the medial \nmeniscal  tear  on  November  2,  2021.    After  the  surgery,  the  claimant  was  placed  on \n\nAXSOM – H107962 \n \n15 \n \ncrutches and fell due to the crutches, which caused a reinjury of his medial meniscus and \nlateral meniscus and also a sprain of his MCL.  Dr. Tucker performed a second surgery \nto  repair  the  additional  injuries  on  December  6,  2021.    The  follow-up  by  Dr. Tucker \nprovided  that  the  claimant  was  doing “okay”  but  was  having  increased  pain  after  the \nsurgery, with increased pain down the L4 dermatome/saphenous nerve distribution, and \nthe claimant indicated that the pain came on if something pressed on his exterior thigh.  \nAn  EMG  nerve  study by  Dr.  Cayme  provided  in  a  revised  report  an  abnormal \nelectrodiagnostic  study  with  electrodiagnostic  evidence  of  a  generalized  peripheral \nneuropathy, other focal nerve entrapment, or right lumbar radiculopathy.  The claimant \ncontinued  with  physical  therapy  and  continued  with  dysesthesias along  the saphenous \nnerve distribution, which was aggravated by sitting in a chair. \nThe claimant continued to complain and was eventually referred to Dr. Paulus who \nagreed with Dr. Tucker that much of the radiating leg symptoms of the medial knee to the \nmedial ankle fit with the saphenous nerve distribution, but by continuing to the dorsum of \nthe foot was atypical for saphenous neuropathy.  A bilateral saphenous nerve conduction \nwas performed on March 28, 2022, which revealed a significantly lower right-sided nerve \namplitude in comparison to the left and Dr. Paulus opined that this was “confirmatory for \nsaphenous neuropathy.”  He also noted quad atrophy.  On May 31, 2022, Dr. Paulus \nopined that the claimant had developed Type 2 Chronic Regional Pain Syndrome.  Dr. \nTucker  also  issued  a  clinic  note  on  the  same  date  which  provided  that  the claimant \ncontinued to suffer from saphenous neuropathy. \nDr.  Paulus  then  referred  the  claimant  to  Dr.  Brent  Walker,  who  noted  that  the \nclaimant’s right knee was reddened  and  swollen  and  who ordered  a  triple  phase  bone \n\nAXSOM – H107962 \n \n16 \n \nscan in regard to possible complex regional pain syndrome of the right lower extremity.  \nOn July 15, 2022, Dr. Walker assessed the claimant with complex regional pain syndrome \nof  the  right  lower  extremity.    The  report  also  provided  that  complex  regional  pain \nsyndrome had an uncertain progress and could reactivate months and even years after \nthe  initial  insult.    Dr.  Walker  recommended  that  the  claimant  was  a  candidate  for  the \nUAMS program for chronic regional pain syndrome. \nThe claimant was also seen by Dr. Cale White and Dr. Jonathan Gores on April \n25, 2023, and their report also provided that the right lower extremity pain was consistent \nwith  complex  regional  pain  syndrome  and  their  plan  called  for  a  DRG  stimulator \nassessment.  \nAn IME by Dr. Carlos Roman discussed the various treatments and diagnoses that \nhad  been  provided  by  the  above  doctors  and  he  opined  that  the  claimant  had  a  past \nhistory of neuropathy with general and severe osteoarthritis and  the claimant did not fit \nthe criteria for complex regional pain syndrome and further, the bone scan would not in \nany way conclude complex regional pain syndrome.  He also opined that the claimant did \nnot fit the criteria for the initial right knee surgery. (Iovera procedure per Dr. Roman)       \nQuestions  concerning  the  credibility  of  witnesses  and  the  weight  to  be  given  to \ntheir testimony are within the exclusive province of the Commission.  Powers v. City of \nFayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007).  Where there are contradictions \nin the evidence, it is within the Commissions’ province to reconcile conflicting evidence \nand to determine the true facts.  Cedar Chem. Co. v. Knight, 99 Ark. App. 162, 258 S.W.3d \n394 (2007).  The Commission has authority to accept or reject a medical opinion and to \ndetermine its medical soundness and probative force.  Oak Grove Lumber Co. v. Highfill, \n\nAXSOM – H107962 \n \n17 \n \n62 Ark. App. 42, 968 S.W.2d 637 (1998).  However, the Commission may not arbitrarily \ndisregard the testimony of any witness.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. \n230, 184 S.W.3d 31 (2004). \nIn workers’ compensation law, the employer takes the employee as he finds him \nand employment circumstances that aggravate pre-existing conditions are compensable. \nHeritage Baptist Temple v. Robinson, 82 Ark. App. 460, 120 S.W. 3d 150 (2003).  The \nparties  agreed  the  claimant  suffered   a compensable  injury  to  his  right  knee  from \na work-related injury.  The claimant clearly suffered from some arthritic issues prior to the \nwork-related accident, as do most people who are approximately fifty-five (55) years of \nage.    It is also noted that the testimony of the claimant had various discrepancies between \nstatements during his deposition and later testimony.  However, with that said, there were \nvarious  objective  findings  regarding  the  right  knee,  which  included  a  nerve  conduction \nstudy that provided electrodiagnostic evidence of right saphenous neuropathy, a positive \nTinel’s,  quad  atrophy,  findings  of  a  reddened  and  swollen  right  knee  with  temperature \nasymmetry, and a triple phased bone scan that provided for decreased activity in all three \nphases of the right foot which could be caused by lack of use but also by a rare pattern \nof complex regional pain syndrome. \nHere  it  is  clear  that  the  medical  opinions by  treating  physicians  Dr.  Paulus,  Dr. \nWalker, Dr. White, and Dr. Gore, and the referral to complex regional pain syndrome by \nDr. Schock and Dr. Wagner, are in direct opposition to the opinion issued by Dr. Roman.  \nIt is also noted that Dr. Roman’s opinion is apparently  also  in  direct  opposition  to  Dr. \nTucker’s original treatment  of  the  claimant  in  regard  to  his  surgeries.  It  is  within  the \nCommission’s province to reconcile conflicting evidence, including the medical evidence.  \n\nAXSOM – H107962 \n \n18 \n \nWilliams v. Ark. Dept. of Community Corrections, 2016 Ark. App. 427, 502 S.W.3d 534.  \nThe  Commission  has  the  duty  of  weighing  medical  evidence,  and  the  resolution  of \nconflicting evidence  is  a  question of  fact for the  commission.    It  is  well  settled  that  the \nCommission has the authority to accept or reject medical opinions and the authority to \ndetermine their medical soundness and probative force.  Considering the Commission’s \nfact-finding  authority,  and  weighing  the  findings  of  multiple  doctors,  many  who  are \nspecialized in their area of practice, there is no alternative but to find that the opinions of \nDr. Paulus, Dr. Walker, Dr. White, and Dr. Goree are found to be controlling.    \nAfter reviewing all of the evidence, without giving the benefit of the doubt to either \nparty, there is no alternative but to find that the claimant has satisfied his burden of proof \nto  prove,  by  a  preponderance  of  the  credible  evidence,  that  the  medical  treatment he \nrequested, specifically treatment associated with complex regional pain syndrome is both \ncausally related and reasonably necessary for the treatment of the compensable work-\nrelated right knee injury and that he is entitled to the same. \n IT IS SO ORDERED. \n     \n      ___________________________ \n      JAMES D. KENNEDY  \n      Administrative Law Judge","textLength":34810,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H107962 CHARLES W. AXSOM, EMPLOYEE CLAIMANT v. BAPTIST HEALTH SYSTEMS, SELF-INSURED EMPLOYER RESPONDENT CLAIMS ADMINISTRATIVE SERVICES, TPA RESPONDNET OPINION FILED AUGUST 29, 2023 Hearing before Administrative Law Judge, James D. Kennedy, on the 18 th day ...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["knee","back","ankle","sprain","lumbar","hip","thoracic"],"fetchedAt":"2026-05-19T23:04:24.392Z"},{"id":"alj-H207687-2023-08-29","awccNumber":"H207687","decisionDate":"2023-08-29","decisionYear":2023,"opinionType":"alj","claimantName":"Scott Jackman","employerName":"Gnc Holdings,","title":"JACKMAN VS. GNC HOLDINGS, AWCC# H207687 AUGUST 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JACKMAN_SCOTT_H207687_20230829.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACKMAN_SCOTT_H207687_20230829.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H207687 \n \nSCOTT JACKMAN, Employee CLAIMANT \n \nGNC HOLDINGS, Employer RESPONDENT \n \nSENTRY INS., Carrier RESPONDENT \n \n \n \n OPINION FILED AUGUST 29, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant unrepresented and appearing PRO SE. \n \nRespondents represented by JARROD S. PARRISH, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  June  8,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on April 17, 2023, and a Pre-hearing Order \nwas filed on April 18, 2023.   A copy of the Pre-hearing Order has been  marked Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on October \n17, 2022. \n 3. The respondents have controverted the claim in its entirety. \n\nJackman – H207687 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $600.00 for temporary total disability benefits and $450.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to his back on or about October 17, \n2022. \n 2.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  October  18, \n2022, to March 6, 2023. \n Claimant’s contentions are: \n“I  was  denied  for  the  claim  I  submitted  and  I  was  hurt  while \nworking.” \n \n Respondents’ contentions are: \n \n“Respondents have not been presented with evidence establishing a \ncompensable injury to any part of Claimant’s back.” \n \n The  claimant  in  this  matter  is  a  45-year-old  male  who  alleges  to  have  sustained  a \ncompensable injury to his back on or about October 17, 2022. The claimant  gave the following \ntestimony about his alleged injury on direct examination: \nMR. JACKMAN: So on October 17\nth\n, I was at work. I reached \nup  over  our  cash  wrap  wall  to  grab  something  for  a  customer,  a \nVitapak, and when I did, I twisted and went to grab it. When I did, \nI felt a sharp pain in my back, my middle back. It hurt really bad, \nkind  of  made  me  hunch  over.  The  rest  of  the  day  I  was  feeling \nawful from it. \n \nThat  night  I  went  home.  I  had  a  hard  time  sleeping.  Called  my \ndistrict manager in the morning and told him what had happened. I \ntold him that I was going to my doctor. I went to my doctor and my \ndoctor had taken me out of work. He told me to come back and see \nhim within  I think it was  three days. He made an  appointment for \n\nJackman – H207687 \n \n-3- \nme to go back. I went back. It was still hurting. He did some x-rays \nand looked at my back and said I had –  \n \nMR. PARRISH: Your Honor, I am going to object to hearsay. \n \nTHE COURT:  You can’t tell us what the doctor said. \n \nMR. JACKMAN: Okay. \n \nTHE COURT:  You  can  tell  us  what  the  doctor  did,  what \nyou experienced, but you can’t tell us what the doctor said. \n \nMR. JACKMAN: Okay. Can I say the doctor diagnosed me? \n \nTHE COURT:  I will allow you to tell me what you say the \ndoctor diagnosed you with. \n \nMR. JACKMAN: The  doctor  diagnosed  me  with  a  slipped \ndisc,  bulging  disk,  and  he  referred  me  that  I  could  not  go  back  to \nwork until I completed the physical therapy. \n \nMR. PARRISH: And Your Honor, I object to that as hearsay \nfor the record as well. \n \nTHE COURT:  Thank you. Go ahead. \n \nMR. JACKMAN: So  he  said  that  I couldn’t  go  back  to  work \nuntil I did physical therapy. He scheduled me for physical therapy. \nI waited about two and a half weeks before I was finally able to get \ninto physical therapy. I went through physical therapy for about 12 \nweeks. \n \nUpon   completion,   I   went   back   to   my   doctor.   He   evaluated \neverything from the physical therapist, asked me how I was doing, \nand allowed me to come back to work. And that was on the 21\nst\n. \n \nThen  I  called  my  district  manager  and  I  kept  him  in  the  loop  the \nwhole  time  of  what  was  going  on.  Then  I  called  him  on  the  21\nst\n \nand  let  him  know  that  I  was  now  released.  Sent  him  the  work \nrelease  and  he  said  he  would  get  me  back  to  work  as  soon  as \npossible. He had me start back on March 6\nth\n. \n \n  In  order  to  prove  a  compensable  injury  as  the  result  of  a  specific  incident  that  is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance of the \n\nJackman – H207687 \n \n-4- \nevidence:  (1)  an  injury  arising  out  of  and  in  the  course  of  employment;  (2)  the  injury  caused \ninternal or external harm to the body which required medical services or resulted in disability or \ndeath;   (3) medical evidence supported by objective findings establishing an injury;   and (4) the \ninjury was caused by a specific incident identifiable by time and place of occurrence. Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n The claimant must prove the existence of objective medical findings regarding his alleged \nback  injury.  The  claimant  submitted  five  pages  of  documentary  evidence,  all  of  which  were \nadmitted into the record. The  respondents submitted six pages of medical records  and 10 pages \nof  non-medical  records,  all  of  which  were  submitted  into  the  record.  Upon  review  of  all  the \nevidence submitted, including testimony of the claimant, I find no objective medical evidence to \nsupport  the  claimant’s  allegation  of  a  compensable  back  injury  on  or  about  October  17,  2022. \nAfter a review of the medical evidence, it is clear the claimant was taken off work for a period of \ntime;  however,  objective  medical  evidence  of  a  back  injury  on  about  October  17,  2022,  or  any \nother date, simply does not exist inside the record in this matter. As such, the claimant has failed \nto prove by a preponderance of the evidence that he sustained a compensable back injury on or \nabout October 17, 2022. \n The  claimant  has  also  asked  the  Commission  to  consider  whether  he  is  entitled  to \ntemporary  total  disability  benefits  from  October  18,  2022, to  March  6,  2023.  The  claimant  has \nnot been able to prove by a preponderance of the evidence the existence of a compensable back \ninjury as he has alleged. As such, he is unable to prove entitlement to temporary total disability \nbenefits for that alleged injury. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \n\nJackman – H207687 \n \n-5- \nthe  witness  and  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 17, 2023, and contained in a Pre-hearing Order filed April 18, 2023, are hereby accepted as \nfact. \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained a \ncompensable injury to his back on or about October 17, 2022. \n 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto temporary total disability benefits from October 18, 2022, to March 6, 2023. \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":8315,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H207687 SCOTT JACKMAN, Employee CLAIMANT GNC HOLDINGS, Employer RESPONDENT SENTRY INS., Carrier RESPONDENT OPINION FILED AUGUST 29, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claimant unrepresented ...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:04:26.783Z"},{"id":"alj-H109307-2023-08-29","awccNumber":"H109307","decisionDate":"2023-08-29","decisionYear":2023,"opinionType":"alj","claimantName":"Carlos Martin","employerName":"Bekaert Corp","title":"MARTIN VS. BEKAERT CORP. AWCC# H109307 NUNC PRO TUNC FILED AUGUST 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MARTIN_CARLOS_H109307_20230829.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARTIN_CARLOS_H109307_20230829.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H109307 \n \nCARLOS MARTIN, Employee CLAIMANT \n \nBEKAERT CORP., Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED AUGUST 29, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by DAVID C. JONES, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  June  1,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on April 10, 2023, and a Pre-hearing Order \nwas filed on April 11, 2023.   A copy of the Pre-hearing Order has been  marked Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2.   The   relationship   of   employee-employer-carrier   existed   between   the   parties   on \nSeptember 13, 2020. \n 3. The claimant sustained a compensable injury to his right shoulder and neck on or about \nSeptember 13, 2020. \n\nMartin – H109307 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $711.00 for temporary total disability benefits and $533.00 for permanent partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is entitled to additional medical treatment for his compensable neck \ninjury, including injections by Dr. Maryanov. \n 2.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  October  31, \n2022, to a date yet to be determined. \n 3. Whether Claimant’s attorney is entitled to attorney fee. \n Claimant’s contentions are: \n“a. The Claimant contends that since he returned to active medical \ntreatment as of October 31, 2022, and is currently not working, he \nis  entitled  to  temporary  total  disability  benefits  from  October  31, \n2022, until a date yet to be determined.  \n \nb.  The  Claimant  contends  that  Dr.  Maryanov  is  his  authorized \ntreating   physician   and   that   therefore   treatment   by   or   at   the \ndirection  of  Dr.  Maryanov  is  reasonably  necessary  treatment  and \nshould be the liability of the respondents. Said treatment includes, \nbut is not necessarily limited to, injections. \n \nc.   The   Claimant   contends   that   Dr.   Maryanov   recommended \nsurgery   on   May   3,   2022;   however,   respondents   refused   to \nauthorize   said   surgery   and   instead   sent   the   claimant   to   Dr. \nRandolph Gannon, who eventually performed surgery. \n \nd.  The  Claimant  contends  that  there  is  no  evidence  to  support  a \nconclusion  that  he  would  have  ever  been  able  to  get  surgery \nauthorized if he had not hired an attorney and his attorney filed Pre \nHearing    Questionnaire,    all    disability    benefits    have    been \ncontroverted and an appropriate attorney’s fee should be awarded.” \n \n Respondents’ contentions are: \n \n\nMartin – H109307 \n \n-3- \n“1.  The  Respondents  contend  that  they  previously  accepted  the \nClaimant’s  shoulder  and  neck  injuries  as  compensable,  and  all \nappropriate  benefits  have  been  paid  to  date.  In  that  regard,  the \nRespondents  provided  the  Claimant  with  light-duty  work  until  he \nunderwent  surgery  at  the  direction  of  Dr.  Gannon  on  February  2, \n2022. \n \n2. The Respondents contend that the Claimant was paid temporary \ntotal disability benefits until he was released to return to work in a \nlight-duty capacity. \n \n3.  The  Respondents  contend  that  the  Claimant  was  released  to \nreturn to work in a regular-duty capacity without any restrictions as \nof June 2, 2022. \n \n4.  The  Respondents  would  note  that  the  Claimant’s  employment \nwith  the  Respondent/Employer  ended  on or  about  July  29,  2022, \nfor reasons unrelated to the claim filed herein. \n \n5.  The  Respondents  contend  that  the  Claimant  was  placed  at \nmaximum  improvement  as  of  on  or  about  August  25,  2022,  and \nsubsequently  assigned  an  8%  permanent  impairment  rating  to  the \nbody as a whole, which has been accepted and is being paid out at \nthis point. \n \n6.  The  Respondents  would  note  that the  Claimant  underwent  a \nFunctional  Capacity  Evaluation  on  September  28,  2022,  which \nindicated    that    the    Claimant    had    permanent    medium-duty \nrestrictions. \n \n7. The Respondents contend that the Claimant is not entitled to any \nadditional  temporary  total  disability  benefits  as  he  was  originally \nreleased  to  return  to  work  in  a  regular-duty  capacity  on  June  2, \n2022, and was once again placed at maximum improvement on or \nabout  August  25,  2022,  and  his  permanent  restrictions  have  been \nassigned.  Accordingly,  the  Claimant  has  reached  the  end  of  his \n‘healing  period’  and  is  not  entitled  to  any  additional  temporary \ntotal disability benefits. \n \n8.  The  Respondents  contend  that,  as  the  Claimant  has  reached \nMMI,  his  impairment  rating  has  been  assigned  and  his  permanent \nrestrictions  have  been  assigned,  the  claim  is  ripe  for  wage-loss \nconsideration  if  the  Claimant  contends  he  is  entitled  to  wage  loss \ndisability benefits. \n \n\nMartin – H109307 \n \n-4- \n9.  The  Respondents  contend  that  they  would  be  entitled  to  a \nstatutory  offset  for  the  unemployment  benefits  previously  paid  to \nthe  Claimant.  Furthermore,  the  Respondents  contend  that  they \nwould  be  entitled  to  an  offset  for  any  other  types  of  group  health \ncarrier,  disability  carrier  or  other  collateral  benefits  paid  to  or  on \nbehalf of the Claimant. \n \n10.   The   Respondents   would   reserve   the   right   to   amend   and \nsupplement  their  contentions  after  the  supplemental  discovery  has \nbeen completed.” \n \n The claimant in this matter is a 34-year-old male who sustained compensable injuries to \nhis  right  shoulder  and  neck  on  September  13,  2020.  On  direct  examination,  the  claimant \ndescribed the incident in which he sustained compensable injuries to his right shoulder and neck \nas follows: \nQ Mr.  Martin,  it  has  been  agreed  upon  that  you  sustained \ninjuries while in the employment of Bekaert back in September of \n2020, but I would like for you  just to briefly explain how you  got \ninjured. \n \nA So I was running a machine and I pushed out a reel that had \nbroke  and  strung  it  back  up  and  I  was  rolling  the  bobbins  back \ninside and I reached up from my crane, I had a pop in my neck and \nthe pain that shot down my arm. \n \nQ And did you report that? \n \nA Yes, sir. \n \nQ Were you sent somewhere to receive medical treatment? \n \nA Yes, sir. \n \n In the present matter the claimant has asked the Commission to determine if he is entitled \nto  additional  medical  treatment  for  his  compensable  neck  injury.  The  claimant  was  initially \ntreated  with  conservative  care  for  both  his  right  shoulder  and  neck.  The  conservative  treatment \nprovided to the claimant did not alleviate the claimant’s symptoms. \n\nMartin – H109307 \n \n-5- \n On December 29, 2020, the claimant underwent an MRI without contrast of the cervical \nspine. That diagnostic report was authored by Dr. Leo Drolshagen.  Following is the impression \nsection of that report: \nIMPRESSION \n1. Moderate right paracentral lateral disc protrusion C6-7 indenting \nthe subarachnoid space and cord. \n2. Small to moderate central protrusion and spurring at C3-4. \n3. Facet arthropathy as described. \n \n On  May  3,  2021,  the  claimant  was  seen  by  Dr.  Maryanov.  During  that  visit,  Dr. \nMaryanov  recommended  surgical  intervention  for  the  claimant’s  cervical  spine.  Following  is  a \nportion of that medical record: \nWe administered Neck Disability Index to evaluate the impact that \npatient’s  neck  and  upper  extremity  dysfunction  has   on   their \nfunctional   abilities.   Patient   scored   22,   with   all   10   questions \nanswered,  thus  indicating  44%  functional  disability  due  to  neck \nand upper extremity dysfunction. We will use this score as baseline \nto evaluate efficacy of subsequent treatments. Patient reports worse \npain  since  last  visit  post  Yoga  session.  As  we  have  exhausted  all \nother less invasive treatments, we will schedule patient for cervical \ndisc  replacement  with  Mobi-c  device  on  the  June  surgery  day  at \nPTCOA/ISC.  We  will  order  Flex/EX  cervical  XR  upon  approval \nfor procedure to be performed here in the clinic at the preoperative \nvisit.  I  think  this  is  appropriate  treatment  for  patient  as  we  have \nexhausted conservative care for this problem for him with physical \ntherapy  exercise  regimen,  behavioral  therapy,  anti-inflammatory \nmedications   and   interventional   procedures.   I   explained   the \ndifference  between  the  cervical  disc  replacement  and  acdf  fusion, \nwith disc replacement being favorable profile long term with much \nless risk of developing adjacent level disease and shorter recovery \nand come back to work quicker. \n \n The  claimant  underwent  another  MRI  at  MANA  Imaging  Associates  of  NWA  on \nNovember  11,  2021.  Following  are  the  impressions  from  that  MRI  as  recorded  by  Dr.  Vanessa \nBrunch: \nIMPRESSION: \n\nMartin – H109307 \n \n-6- \nMultilevel  cervical  spondylosis,  worst  at  the  C6-7  level  where \nthere  is  moderate  canal  stenosis  and  severe  bilateral  foraminal \nstenosis. \n \n On  December  7,  2021,  the  claimant  was  seen  by  Dr.  Gannon  Randolph  at  Ozark \nOrthopedics.  Dr.  Randolph  also  recommended  surgical  intervention  for  the  claimant’s  cervical \nspine.  However,  Dr.  Randolph  recommended  a  different  form  of  surgical  intervention  than  Dr. \nMaryanov. Following is a portion of the claimant’s medical record from that visit: \nCarlos  is  a  pleasant  33-year-old  he  had  an  on-the-job  injury \n9/13/2020 he works for Bekaert. He thinks he was either moving a \ngiant 3 ton spool of wire around or loading it in his machine when \nhe  felt  a  pop  in  his  neck  and  has  had  subsequently  right  C7 \nradicular features since that time. He has been through a full gamut \nof   conservative   measures   including   epidural   steroid   injection, \nphysical therapy, time, NSAIDs. \n \n*** \nAssessment/Plan \nAP  lateral  and  open-mouth  odontoid  views  of  the  cervical  spine \ntaken  for  surgical  evaluation  12/7/2021  demonstrate  moderate \ndegenerative  disc  disease  at  the  C6-7  level.  Otherwise  normal \nalignment of the spine. \n \nMRI at Manna dated 11/11/2021 demonstrates C6-7 HNP with by \nforaminal  right  greater  than  left  C7  compression.  No  high-grade \ncentral  canal  stenosis  or  cord  signal  change.  There  is  some  slight \nprogression of these from his previous MRI 12/29/2020. \n \nAssessment plan: \nIn my hands Carlos being a very active young person with a highly \nphysical job I think a ACDF C6-7 makes better sense that for him \nthan a TDA the procedure alternatives risk potential complications \nwere explained patient in detail today. He really has exhausted his \noptions conservatively. He is going to mull it over and decide what \nhe wants to do. I am happy to have him call and schedule this if he \nwants to. \n \n On February 2, 2022, the claimant underwent the surgical intervention as recommended \nby  and  performed  at  the  hands  of  Dr.  Randolph.  The  surgery  included  an  anterior  cervical \n\nMartin – H109307 \n \n-7- \ndiscectomy and fusion, decompression of the spinal cord and bilateral neural elements. Also, an \nanterior  plate  fixation,  C6-C7,  with  interbody  cage  placement  at  C6-C7  and  interoperative \nneuromonitoring.  \n On   May   27,   2022,   the   claimant   underwent   a   nerve   conduction   study   at   Ozark \nOrthopedics  performed  by  Dr.  Mark  Miedema  at  the  recommendation  of  Dr.  Randolph. \nFollowing is a portion from that diagnostic testing report. \nNCV FINDINGS: \n*  All  nerve  conduction  studies  (as  indicated  in  the  preceding \ntables) were within normal limits. \n* All left vs. right side differences were within normal limits. \n \nEMG FINDINGS: \n*  All  examined  muscle  (as  indicated  in  the  preceding  table) \nshowed no evidence of electrical instability. \n \n1. Normal electrodiagnostic examination. \n2.   There   is   no   electrodiagnostic   evidence   of   carpal   tunnel \nsyndrome,  cubital  tunnel  syndrome  or  a  generalized  peripheral \nneuropathy  in  the  right  or  left  upper  limb  of  the  nerves  that  were \ntested. \n3. There is no electrodiagnostic evidence of a right or left cervical \nradiculopathy   of   the   muscles   that   were   tested,   including   the \ncervical paraspinals. \n4. Of note, EMG is not a sensitive study and also does not evaluate \nsmall  sensory  pain  fibers.  Thus  a  lack  of  active  denervation  does \nnot exclude an active radiculopathy. Clinical correlation is needed \nto determine the significance of the findings on the EMG and NCS \nwith  today’s  study.  I  encourage  him  to  follow-up   with   Dr. \nRandolph. \n \n On  June  2,  2022,  the  claimant  again  saw  Dr.  Randolph.  At  that  time,  the  claimant \nremained under the care of Dr. Randolph but was released to full duty. Following is a portion of \nthat medical record: \nAssessment/Plan \nEMG  dated  5/24/2022  demonstrated  normal  EMG  bilateral  upper \nextremities. \n\nMartin – H109307 \n \n-8- \n \nAssessment plan: \nThere  is  no  clinically  evident  process  why  Carlos  still  having \nsymptomology  he  has  excellent  looking  radiographic  studies.  He \nhas a normal EMG. I have recommended work hardening program \nand return to full duty without restrictions. I will see him back in 3 \nmonths. \n \n On  August  25,  2022,  the  claimant  was  again  seen  by  Dr.  Randolph  who  released  the \nclaimant  to  be seen  on  an  as  needed  basis  and  found  the  claimant  at  maximum  medical \nimprovement. The  claimant was also  recommended  to undergo  a functional capacity evaluation \n(FCE). Following is a portion of that medical record: \nAssessment/Plan \nAP   lateral   cervical   spine   series   taken   clinic   today   8/25/2022 \ndemonstrate   excellent   bony   consolidation   through   the   ACDF \nconstruct.  No  evidence  of  adjacent  segment  degeneration.  Normal \nalignment of the spine. \n \nAssessment plan: \nHealed C6-7 ACDF. Patient still is having some symptomatology. \nWe  evaluated  with  EMG  and  MRI  scan  both  of  which  were \nnegative. Therefore I think he is at MMI and recommend FCE and \nimpairment rating. I will see him back on a as needed basis.  \n \n Approximately two weeks after being released by Dr. Randolph and placed at MMI, the \nclaimant filed a request with the Commission on September 9, 2022, for a Change of Physician. \nIt should be understood that the medical records  continue to report the claimant’s assertion that \nhe continued to have neck pain.  \n On September 28, 2022, the claimant underwent a functional capacity evaluation and also \nan  anatomical  impairment  rating  with  Functional  Testing  Centers,  Inc.  According  to  the  FCE \nreport,  the  claimant’s “evaluation  indicated  that  a  reliable  effort  was  put  forth,  with  50  of  53 \nconsistency  measures  within  expected  limits.”  Following  are  portions  of  the  claimant’s  FCE \nreport which found him to have the ability to work in the medium classification. \n\nMartin – H109307 \n \n-9- \nFUNCTIONAL ABILITIES \nMr.  Martin  demonstrated  the  ability  to  perform  material  handling \nat  the  following  levels  during  this  functional  capacity  evaluation. \nMr.  Martin  demonstrated  an  occasional  bi-manual  lift/carry  of  up \nto   40   Lbs.   He   also   demonstrated   the   ability   to   perform \nlifting/carrying  of  up  to  20  Lbs.  on  a  Frequent  basis.  Mr.  Martin \nalso demonstrated an occasional RUE lift of 25 lbs. and a LUE lift \nof 20 lbs. when lifting unilaterally from knuckle to shoulder level. \n \n*** \nFUNCTIONAL LIMITATIONS \nMr.    Martin    demonstrated    functional    limitations    during    his \nevaluation  in  the  area  of  material  handling  as  he  exhibited  the \nability to perform on an Occasional bi-manual lift/carry of up to 40 \nlbs.  He  also  demonstrated  limitations  with  unilateral  lifting  as  he \nexhibited  a  maximal  RUE  lift  of  25  lbs.  as  compared  to  20  lbs. \nwith the LUE when lifting unilaterally from floor to shoulder level. \nHe   demonstrated   poor   tolerance   to   repetitive   and   sustained \nstooping   and   performed   these   activities   at   the   Occasional \nfrequency   level.   He   performed   all   other   activities   at   a   level \nconsistent with that of an average worker. \n \nCONCLUSIONS \nMr.  Martin  completed  functional  testing  on  this  date  with  reliable \nresults. \n \nOverall,  Mr.  Martin  demonstrated  the  ability  to  perform  work  in \nthe MEDIUM classification of work as defined by the US Dept. of \nLabor’s  guidelines  over  the  course  of  a  normal  8 hour  workday \nwith limitations as noted above. \n \n The claimant’s testing on September 28, 2022, also included evaluation for a permanent \nimpairment   rating   regarding   his   cervical   spine.   It   was   determined   by   Casey   Garretson, \noccupational  therapist  with  Functional  Testing  Centers,  Inc.,  that  the  claimant’s  cervical  spine \ninjury provided an 8% impairment rating to the body as a whole. Following is a portion of that \nreport: \nImpairment Rating Report \nUsing  the  AMA  Guidelines  Fourth  Edition,  Table  75  (p.  113), \nWhole-person    Impairment    Percents    Due    to    Specific    Spine \n\nMartin – H109307 \n \n-10- \nDisorders:  In  Mr.  Martin’s  case,  he  does  qualify  for  impairment \nbased on the following: \n \nUsing   the   AMA   Guidelines   Fourth   Edition,   Whole-person \nImpairment  Percents  Due  to  Specific  Spine  Disorders,  Page  113, \nTable  75,  Mr.  Martin  would  have  an  impairment  to  the  cervical \nspine based on: \n \nSection   IV.   D.   Single   level   spinal   fusion   with   or   without \ndecompression without residual signs or symptoms. This correlates \nto his documented cervical fusion surgery at C6-C7, which results \nin an 8% Whole Person Impairment. \n \n Sometime  after  the  claimant’s  FCE  and  impairment  evaluation  at  Functional  Testing \nCenters,  Inc.,  Dr.  Randolph  issued  an  addendum  to  the  claimant’s  August  25,  2022,  medical \nrecord. That amendment follows: \nThis  is  an  addendum  to  the  patient’s  previous  visit  8/25/2022.  I \nreceived  FCE  dated  9/28/2022  reviewed  these  documents  the \nphysical    demand    characteristics    of    work    for    Mr.    Martin \ndemonstrate the ability to work in a medium classification work as \ndefined  by  the  US  Department  of  Labor’s  guidelines  over  the \ncourse of a normal 8-hour workday per the AMA guidelines fourth \nedition patient’s whole person impairment is 8%. \n \n On October 21, 2022, the Commission issued a Change of Physician Order in response to \nthe  claimant’s  September  9,  2022,  request  for  a  Change  of  Physician.  That  order  changed  the \nclaimant’s physician from Dr. Randolph to Dr. Maryanov, whom the claimant had seen prior to \nDr. Randolph. \n On  October  31,  2022,  the  claimant,  who  continued  to  complain  of  cervical  pain  and \ndifficulties, was again seen by Dr. Maryanov. Following is a portion of that medical record. \nWe administered Neck Disability Index to evaluate the impact that \npatient’s  neck  and  upper  extremity  dysfunction  has  on  their \nfunctional   abilities.   Patient   scored   24,   with   all   10   questions \nanswered,  thus  indicating  48%  functional  disability  due  to  neck \nand upper extremity dysfunction. We will use this score as baseline \nto  evaluate  efficacy  of  subsequent  treatments.  Patient  had  ACDF \n\nMartin – H109307 \n \n-11- \nsurgery  in  February  2022.  This  resolved  problems  on  right  side \nhowever,  during  Work  Hardening  PT,  he  begain  having  pain  on \nleft  side.  We  performed  sudomotor  testing  due  to  inability  to \ncompletely  understand  and  explain  patient’s  multiple  sensory \ndysesthesias, in presence of elevated blood pressure, with concern \nfor  peripheral  neuropathy,  autonomic  dysfunction,  and  vascular \ninsufficiency. \n \n*** \nWe  performed  cervical  spine  Xray,  see  report.  My  impression  is \nthat  patient  is  having  problems  with  neuritis  or  left  c6  nerve  root, \nrelated  to  physical  activity  exacerbation  in  setting  of  exceeding \nposteriorly  placed  interbody  device.  I  suggested  to  help  with  left \ncervical 6/7 transforaminal epidural steroid injections to help. He is \nalso  having  neck  pain  radiating  up  into  the  occiput.  This  is  likely \nrelated  to  increased  spondylosis  at  c3/4  level  I  suspect  with  these \nnew xrays. This may be due to adjacent level disease due to fusion \nsurgery he had. I recommend evaluating further with MRI cervical \nspine.  I  recommended  activity  restriction  no  lifting  over  20  lbs. \nFollow up in two weeks for procedure. \n \n On November 22, 2022, the claimant was again seen by Dr. Maryanov. At that time, and \nat least up until the time of the hearing in this matter, the claimant had not received the epidural \nsteroid injections recommended by Dr. Maryanov during the claimant’s October 31, 2022, visit. \nFollowing is a portion of the claimant’s November 22, 2022, visit with Dr. Maryanov: \nAssessment: \nPatient  is  32  y/o  mail  referred  to  our  clinic  for  evaluation  and \ntreatment  of  bilateral  shoulder  pain  and  bilateral  upper  extremity \npain  subsequent  to  a  work-related  incident,  when  in  2020  he \nreached  up  to  grab  a  controller  of  the  crane  right  after  pushing  a \nheavy  metal  reel  weighing  over  multiple  hundreds  of  kilograms. \nPatient  had  a  repeat  injury  in  July  2022  when  put  into  a  work \nhardening  program  and  exposed  to  lifting  weights  over  100  lbs. \nwhich  is  significantly  higher  than  his  disability  rating  of  no  more \nthan 40 lbs. \n \n*** \nWe administered Neck Disability Index to evaluate the impact that \npatient’s  neck  and  upper  extremity  dysfunction  has  on  their \nfunctional   abilities.   Patient   scored   25,   with   all   10   questions \nanswered,  thus  indicating  a  50%  functional  disability  due  to  neck \n\nMartin – H109307 \n \n-12- \nand upper extremity dysfunction. We will use this score as baseline \nto evaluate efficacy of subsequent treatments. We discussed patient \ndisability  index  that  was  determined  by  his  surgeon  which  is  8% \nwith  40  lb.  lifting  restriction.  In  my  opinion  this  is  an  appropriate \ndetermination.  We  advised  patient  he  needs  to  evaluate  his  life \nmoving  forward  and  what  he  wants  to  do.  We  will  continue  to \nwork with adjuster to get procedure approved. \n \n The first question before the Commission is whether the claimant is entitled to additional \nmedical  treatment  for  his  compensable  neck  injury,  including  injections  by  Dr.  Maryanov.  It  is \nclear  from  the  medical  records  introduced  into  evidence  that  the  claimant  still  reported  neck \ndifficulties after his surgical intervention. In the claimant’s August 25, 2022, medical record with \nDr. Randolph the claimant complained of pain at the level of seven out of 10, with 10 being the \nworst pain. During that visit Dr. Randolph found the claimant at maximum medical improvement \nand  ordered  an  FCE.  The  claimant  quickly  thereafter  requested  a  Change  of  Physician  on \nSeptember 9, 2022.  \n Dr. Maryanov, who saw the claimant on October 31, 2022, ten days after the Commission \nordered the Change of Physician, gave a detailed explanation of why he believed the claimant’s \npain  continued  and  recommended  epidural  steroid  injections  and  a  new  MRI  as  treatment  and \ndiagnostics, stating “My impression is that patient is having problems with neuritis of the left C6 \nnerve  root,  related  to  physical  activity  exacerbation  in  setting  of  exceeding  posterior  placed \ninterbody  device.  I  suggest  to  help  with  left  cervical  6-7  transforaminal  epidural  steroid \ninjections  to  help.  He  is  also  having  pain  radiating  up  into  the  occiput.  This  is  likely  related  to \nincreased spondylosis at C3-4 level I suspect with these new xrays. This may be due to adjacent \nlevel  disease  due  to  fusion  surgery  he  had.  I  recommend  evaluating  further  with  MRI  cervical \nspine.  I  recommend  activity  restrictions  no  lifting  over  20  lbs.  Follow  up  in  two  weeks  for \nprocedure.”  \n\nMartin – H109307 \n \n-13- \n Both Dr. Maryanov  and  Dr. Randolph offered the  claimant surgery, but each  a different \nmethod of surgery regarding his cervical spine difficulties. The claimant chose Dr. Randolph. Dr. \nMaryanov  believes  that  positioning  of  the  interbody  device  from  that  surgery  by  Dr.  Randolph \ncontinues  to  cause  the  claimant  difficulties.  It  appears  Dr.  Maryanov  believes  that  the  epidural \nsteroid injections will provide the claimant relief. The treatment recommended by Dr. Maryanov \nin  both  his  October  31,  2022,  and  November  22,  2022,  reports  of  the  claimant’s  visits  are \nreasonably necessary treatment for the claimant’s compensable neck injury, but do appear to be \nin  the  form  of  maintenance  to  relieve  symptoms  as  a  result  of  his  injury  and  the  surgery  he \nunderwent.  They  do  not  appear  to  be  necessarily  corrective  in  nature.  Put  more  clearly,  they \nappear  to  be  treatment  to  bring  the  claimant’s  symptoms  closer  to  a  baseline  of  his  pre-injury \nstatus  than  to  correct  the  underlying  problem.  However,  Dr.  Maryanov’s  recommendations  are \nreasonably necessary treatment for the claimant’s compensable neck injury. \n The claimant has asked the Commission to determine whether he is entitled to temporary \ntotal disability benefits from October 31, 2022, to a date yet to be determined. The claimant was \nfound  at  maximum  medical  improvement  by  Dr.  Randolph  on  August  25,  2022,  after  having \nbeen released to full duty without restrictions by Dr. Randolph on June 2, 2022. The claimant did \nbegin  work  at  that  time.  However,  the  claimant’s  employment  with  the  respondent  ended \nsometime after he was released to return to work at full duty by Dr. Randolph on June 2, 2022. \nThe claimant was still under care from Dr. Randolph when his employment ended. Apparently, a \nconfidentiality  agreement  was  reached  between  the  claimant  and  the  respondent.  As  such,  the \nCommission  has  little  to  no  information  about  the  claimant’s  end  of  employment  with  the \nrespondent.  \n\nMartin – H109307 \n \n-14- \n I find that the claimant was at maximum medical improvement on August 25, 2022, when \nDr.   Randolph   declared   as   much.   However,   I   believe   the   claimant   was   still   in   need   of \nmaintenance  type  treatment  for  his  long-term  symptoms  that  are  a  result  of  his  8%  whole  body \nimpairment  rating  determined  by  Functional  Testing  Centers,  Inc.  and  agreed  with  by  both  Dr. \nRandolph  and  Dr.  Maryanov.  Since  the  claimant  reached  maximum  medical  improvement  on \nAugust  25,  2022,  he  must  reenter  his  healing  period  to  be  entitled  to  temporary  total  disability \nbenefits  and  he  has  not  done  so.  I  recognize  that at  the  claimant’s  October  31,  2022,  visit  with \nDr. Maryanov, the claimant was placed on activity restrictions of “no lifting over 20 lbs.,” which \nis a greater restriction than the 40 lb. restriction placed on the claimant by his FCE and agreed to \nby  Dr.  Randolph.  However,  the  40  lb.  restriction  was  placed  on  the  claimant  at  his  FCE  on \nSeptember  28,  2022,  before  Dr.  Maryanov’s  20  lb.  restriction.  In  the  report  following  the \nclaimant’s  November  22,  2022,  visit  with  Dr.  Maryanov,  it  is  stated, “We  discussed  patient \ndisability index that was determined by his surgeon which is 8% with 40 lb. lifting restriction. In \nmy opinion this is an appropriate determination. We advised patient he needs to evaluate his life \nmoving  forward  and  what  he  wants  to  do.  We  will  continue  to  work  with  adjuster  to  get \nprocedure approved.”  The claimant has  failed  to  prove by a preponderance of the evidence that \nhe  is  entitled  to  temporary  total  disability  benefits  from  October  31,  2022,  to  a  date  yet  to \ndetermined. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n \n\nMartin – H109307 \n \n-15- \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 10, 2023, and contained in a Pre-hearing Order filed April 11, 2023, are hereby accepted as \nfact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he is  entitled  to \nadditional  medical  treatment  for  his  compensable  neck  injury,  including  injections  by  Dr. \nMaryanov  and  treatment  as  recommended  by  Dr.  Maryanov  set  forth  in  the  claimant’s  October \n31, 2022, and November 22, 2022, visits. \n 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto temporary total disability benefits from October 31, 2022, to a date yet to be determined. \n 4. The claimant has failed to prove that his attorney is entitled to an attorney’s fee in this \nmatter. \n ORDER \nThe respondents shall be responsible for the payment of the reasonably necessary medical \ntreatment including injections and treatment as recommended by Dr. Maryanov in the claimant’s \nOctober 31, 2022, and November 22, 2022, visits. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":30978,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H109307 CARLOS MARTIN, Employee CLAIMANT BEKAERT CORP., Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED AUGUST 29, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claimant r...","outcome":"denied","outcomeKeywords":["granted:1","denied:2"],"injuryKeywords":["shoulder","neck","back","cervical","repetitive"],"fetchedAt":"2026-05-19T23:04:28.851Z"},{"id":"alj-G802013-2023-08-29","awccNumber":"G802013","decisionDate":"2023-08-29","decisionYear":2023,"opinionType":"alj","claimantName":"Brian Ward","employerName":"Cj Mahan Construction Company LLC","title":"WARD VS. CJ MAHAN CONSTRUCTION COMPANY LLC AWCC# G802013 AUGUST 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WARD_BRIAN_G802013_20230829.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WARD_BRIAN_G802013_20230829.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G802013 \n \nBRIAN C. WARD, EMPLOYEE                 CLAIMANT \n \nCJ MAHAN CONSTRUCTION COMPANY LLC, \nEMPLOYER              RESPONDENT  \n \nTRAVELERS INSURANCE COMPANY, \nINSURANCE CARRIER              RESPONDENTS  #1 \n \nDEATH & PERMANENT TOTAL  \nDISABILITY TRUST FUND                    RESPONDENT #2 \n \nOPINION FILED AUGUST 29, 2023 \n \nHearing  before  Administrative  Law  Judge  James  D.  Kennedy  on  July  25, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant is pro se and appeared on his own behalf. \n \nRespondents  are  represented  by  Mr.  Guy  Alton  Wade,  Attorney-at-Law  of \nLittle Rock, Arkansas. \n \nThe Trust Fund, represented by Ms. Christy L. King, Attorney-at-Law of Little \nRock, waived its appearance on the Motion to Dismiss. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  July  25,  2023,  in  Little  Rock, \nArkansas,  on  Respondent #1’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas   Code   Annotated   §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant filed an AR-C on or about April 5, 2018, contending that \nhe had injured his left knee and body while getting down off a bridge on November 30, \n2017, while working on a bridge building project. \n On  or  about  January  12,  2023,  respondent’s  #1  filed  a  Motion  to  Dismiss  For \nFailure  to  Prosecute  by  letter  and  contended  that  the  claimant  had  taken  no  action  to \nrequest a bona fide hearing or to pursue his claim, that all benefits that the claimant was \n\nWARD – G802013 \n \n2 \n \nentitled to had been paid, and consequently the matter should be dismissed.  There was \nno record of the claimant filing a response to the Motion to Dismiss after and the hearing \nwas set for July 25, 2023, after proper notice. \n On the date of the hearing, the respondents were represented by Guy Alton Wade, \nwho provided the claim had been accepted as compensable and that appropriate benefits \nhad  been  paid.    The  claimant  appeared pro  se.    The  representative  for  the  respondents \nprovided that no action had been taken in this matter since September of 2021, when the \nrating was paid out.  While under oath, the claimant admitted that he had previously had \nan attorney who had withdrawn, that he saw Dr. Edwards twice last year, and that he was \nalso seeing Dr. Roman who had been prescribing his medications.   The claimant testified \nthat he was currently on social security disability and was receiving $1600.00 a month, \nthat his wife was taking care of him, and she was able to draw benefits from social security \noff him.  Under cross-examination, the  claimant admitted that he received a functional \ncapacity examination and that he had been placed on “total light duty.”  He also admitted \nthat he had not applied for work.   \n After claimant’s testimony, the claimant was instructed that the matter would be \ntaken under advisement for thirty (30) days and that he needed to take affirmative steps \nto pursue this matter and that he could contact the Legal Advisor Division or obtain an \nattorney.  Further  the  claimant  was  advised  that  workers’  compensation  required \naffirmative steps on his part and if he failed to take any affirmative action, the claim would \nbe treated as if he had quit.  The claimant’s father, who was in the  courtroom and who \nhad not been sworn, volunteered that the claimant would need a knee replacement every \nfifteen (15) years.    \n\nWARD – G802013 \n \n3 \n \n The claimant testified that he had originally had the Rainwater Firm representing \nhim  and  that  he  had  contacted  the  Hart  Firm  and  other  attorneys  in  regard  to \nrepresentation but had not retained an attorney at the time of the hearing.  \n   After a review of the record as a whole, which includes all evidence properly before \nthe Commission, and having an opportunity to hear the statements of the attorney for the \nrespondents,  as  well  as  the  claimant’s  statements,  and  after  taking  the  matter  under \nadvisement for thirty (30) plus days and the claimant taking no affirmative steps during \nthat  period  of  time  to  pursue  his  claim,  there  is  no  alternative  but  to  find  that  that  the \nMotion to Dismiss should be granted pursuant to Rule 099.13 of the Arkansas Workers’ \nCompensation Act and Arkansas Code Annotated § 11-9-702. \nIT IS SO ORDERED. \n                \n      ____________________________ \n                  JAMES D. KENNEDY \n                 ADMINISTRATIVE LAW JUDGE","textLength":4619,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G802013 BRIAN C. WARD, EMPLOYEE CLAIMANT CJ MAHAN CONSTRUCTION COMPANY LLC, EMPLOYER RESPONDENT TRAVELERS INSURANCE COMPANY, INSURANCE CARRIER RESPONDENTS #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED AUGUST 29, 2023 Hearing b...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:04:30.916Z"},{"id":"alj-H008478-2023-08-29","awccNumber":"H008478","decisionDate":"2023-08-29","decisionYear":2023,"opinionType":"alj","claimantName":"Gayesandra Thompson","employerName":"First Security Bancorp","title":"THOMPSON VS. FIRST SECURITY BANCORP AWCC# H008478 & H009740 AUGUST 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/THOMPSON_GAYESANDRA_H008478_H009740_20230829.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOMPSON_GAYESANDRA_H008478_H009740_20230829.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H008378 & H009740 \n \nGAYESANDRA THOMPSON (Dec’d),  EMPLOYEE        CLAIMANT \n \nFIRST SECURITY BANCORP, EMPLOYER                RESPONDENT  \n \nTRAVELERS INDEMNITY COMPANY OF AMERICA,  \nCARRIER/TPA                  RESPONDENT  \n       \nOPINION FILED AUGUST 29, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas, on August  29, 2023. \n \nClaimant is deceased and Pro Se. \n \nRespondents  are  represented  by  Mr.  Guy  Alton  Wade,  Attorney-at-Law,  of  Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on August 29, 2023, in Little Rock, \nArkansas,  on  respondents’  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation  Act,  and  further  that  it  had  been  determined  that  the  claimant  was \ndeceased.    The  claimant  lost  her  life  in  a  matter  not  related  to  her claimed  workers’ \ncompensation  injury.  The  claimant  had  originally  filed  two  (2)  separate  claims  and \ncontended she sustained a work-related injury to her neck, left shoulder and whole body \non August 4, 2020, filing a Form C on or about November 30, 2020, and also claimed a \nwork-related  bilateral  carpal  tunnel.    The  claimant  was  originally  represented  by  the \nRainwater Firm which was allowed to withdraw by an Order of the Full Commission dated \nJune 20, 2023.  The respondents filed a Motion to Dismiss by letter dated June 22, 2023, \n\nTHOMPSON – H008378 & H009740 \n \n2 \n \ncontending that the matter should be dismissed for lack of prosecution, and no response \nwas filed.     \nA hearing was set for August 29, 2023, in regard to the Motion to Dismiss.  No one \nappeared on behalf of the claimant after proper notice.  At the time of the hearing, Guy \nWade appeared on behalf of the respondents and asked that the matter be dismissed for \nlack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondents’ \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice pursuant to Ark. \nCode Ann. § 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act at \nthis time.   \nIT IS SO ORDERED: \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2783,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H008378 & H009740 GAYESANDRA THOMPSON (Dec’d), EMPLOYEE CLAIMANT FIRST SECURITY BANCORP, EMPLOYER RESPONDENT TRAVELERS INDEMNITY COMPANY OF AMERICA, CARRIER/TPA RESPONDENT OPINION FILED AUGUST 29, 2023 Hearing before Administrative Law Judge James D. Kenned...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:2"],"injuryKeywords":["neck","shoulder"],"fetchedAt":"2026-05-19T23:04:32.978Z"},{"id":"full_commission-G902784-2023-08-28","awccNumber":"G902784","decisionDate":"2023-08-28","decisionYear":2023,"opinionType":"full_commission","claimantName":"Betty Lewis","employerName":"Wal-Mart Associates, Inc","title":"LEWIS VS. WAL-MART ASSOCIATES, INC. AWCC# G902784 AUGUST 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Lewis_Betty_G902784_20230828.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Lewis_Betty_G902784_20230828.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. G902784\n \n \nBETTY A. LEWIS, EMPLOYEE    CLAIMANT \n \nWAL-MART ASSOCIATES, INC., EMPLOYER           RESPONDENT NO. 1 \n \nWAL-MART CLAIMS SERVICES \nINSURANCE CARRIER/TPA                                       RESPONDENT NO. 1  \n \nDEATH & PERMANENT TOTAL DISABILITY  \nTRUST FUND                                                              RESPONDENT NO. 2 \n \n \nOPINION FILED AUGUST 28, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE R. SCOTT \nZUERKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondent No. 2 represented by the HONORABLE DAVID L. PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed February 28, 2023. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission \nhas jurisdiction over this claim.  \n \n\nLewis-G902784     2  \n \n \n2.  That an employer/employee relationship existed on \nApril 16, 2019, and all relevant times.  \n \n3.  The claimant earned an average weekly wage of \n$733.08, sufficient for temporary total disability and \npermanent partial disability rates of $489.00/$368.00, \nrespectively.  \n \n4.  That the claimant proved, by a preponderance of the \nevidence, that she suffered a compensable left hip/leg \nand low back injury and is entitled to reasonable and \nnecessary medical for the treatment, which includes \nthe payment of any reasonable and necessary, out-of-\npocket medical expenses paid by the claimant.  \n \n5.  The claimant is entitled to attorney fees pursuant to \nArk. Code Ann. §11-9-715. This Award shall bear \ninterest at the legal rate pursuant to Ark. Code Ann. \n§11-9-809.  \n \n6.  If not already paid, the respondents are ordered to pay \nfor the cost of the transcript forthwith. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \n\nLewis-G902784     3  \n \n \nLaw Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715 (Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012).   \n Therefore, we affirm and adopt the February 28, 2023 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n  \n\nLewis-G902784     4  \n \n \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s determination that the \nclaimant has proved by a preponderance of the evidence that she suffered \na compensable left hip, leg, and low back injury for the following reasons: \nI. The Majority’s findings do not comport with the medical \nevidence \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force. Sheridan Sch. Dist. v. Wise, 2021 Ark. App. \n459, 637 S.W.3d 280 (2021). In weighing the evidence, the Commission \nmay not arbitrarily disregard medical evidence or the testimony of any \nwitness. Id. However, the Commission has the authority to accept or reject \nmedical opinions. Williams v. Ark Dept. of Community Corrections, 2016 \nArk. App. 427, 502 S.W. 3d 520 (2016). This, however, is not a case of \nconflicting medical opinions requiring that we determine the weight and \ncredibility of each practitioner’s experience and opinions, but rather the \nMajority’s findings are based on Dr. Lon Burba’s testimony alone.  \nDr. Burba began treating the claimant on August 30, 2019 and \nrecommended an MRI be conducted. (Cl. Ex. 1, Pp.7-8). The results of the \nclaimant’s September 25, 2019 pelvic MRI showed that the “sacrum, iliac \nwings, and sacroiliac joint spaces are unremarkable. The pubic bones and \n\nLewis-G902784     5  \n \n \npubic symphysis appear within normal limits. No stress-related marrow \nedema, fracture, or vascular necrosis.” (Cl. Ex. 1, P. 9). There were no \nfindings of any tears, cartilage loss, bursitis, or fracture. Id. In an attempt to \nlocate the source of the claimant’s pain, Dr. Lon Burba ordered an EMG \nand found “bilateral tarsal tunnel syndrome, a right C-4 radiculitis and a left \nL-4 radiculitis.” (Cl. Ex. 1, P. 21). He also reviewed an MRI of the lumbar \nspine which “revealed degenerative changes at multiple levels with \nforaminal stenosis mild at L-4 . . . An MRI of the hip revealed left \nintertrochanteric bursitis which was mild without significant gluteal \ntendinopathy or tendon tear.” Id. In short, Dr. Burba did “not really see a \nsurgical target” for treating the claimant’s subjective complaints. (Cl. Ex. 1, \nP. 24). After years of treating the claimant, Dr. Burba’s diagnosis boiled \ndown to “degenerative disc disease . . . a low-grade neuropathy . . . some \nbulges and some arthritis of the spine” as well as mild gluteal tendinosis \nwith no tear. (Cl. Ex. 2, P. 14). As discussed in greater detail below, Dr. \nBurba never uncovered the ultimate source of the claimant’s complaints. \nAt his June 8, 2022 deposition, Dr. Burba explained that to cause the \ndegree of inflammation alleged in the claimant’s hip, “there must have been \na lot of energy transfer.” (Cl. Ex. 2, P. 19). \nA. I don’t know – you know, in my mind, you \nknow, a cart bumping against a hip, you \nknow, to cause this kind of thing, I just \ncan’t conceive of – of why this continues to \n\nLewis-G902784     6  \n \n \ngo on, unless that cart was really moving \nor that cart was really heavy or – or had a \nmassive unexpected blow where she was \nunprotected. You know, there must have \nbeen a lot of energy transfer to cause this \ndegree of inflammation in that joint. \nQ. (by Mr. Zuerker) And that’s the assumption \nthat you’re working on, is that this was a \nviolent collision between her and – and I \nnoticed in one of your medical records, I \nthink she showed you a picture of the cart? \nA. You know, I don’t even remember that, if \nshe did. \nQ.   But the assumption – based on the degree \nof problems you’re seeing, the assumption \nyou’re making is that this was a rather \nviolent collision, correct? \nA.   Yes, it—with a lot of energy transfer. Id. \n \nDr. Burba further explained that it would be required that the claimant \nbe “wedged between something that kept her from moving, you know, if \nshe, in other words, had, like, a crush injury; or if – you know, if she was in \na very fragile position, like reaching and stretching on one foot, you know, \nand leaving her unable to protect herself.” (Cl. Ex. 2, P. 31). Dr. Burba \nnever reviewed the video of the accident and in fact cannot himself \nconceive of how this injury would occur “unless that cart was really moving \nor that cart was really heavy or – or had a massive unexpected blow that \nwas unexpected. You know, there must have been a lot of energy transfer \nto cause this degree of inflammation in that joint.” (Cl. Ex. 2, P. 19). \nThroughout his deposition, Dr. Burba emphasized that “a big part of [the \n\nLewis-G902784     7  \n \n \nquestion] is how heavy the cart was . . . [a]nd then even more, even more \nimportant is the velocity, how fast it was going.” (Cl. Ex. 2, P. 29-30). \nIn his February 28, 2023 Opinion, however, the ALJ characterized \nthe claimant’s accident as a “light and glancing blow” to the claimant’s left \nside on three separate occasions. (Op., Pp. 19, 20, 22). This fact is \nsubstantiated by the video submitted by the parties. (Resp. Ex. 3 at 11:52). \nRather than relying on the weight of Dr. Burba’s sworn statements, the ALJ \nand the Majority seemingly hinge their findings on a letter drafted by \ncounsel for the claimant and signed by Dr. Burba on October 29, 2021 \nstating that his objective findings regarding the claimant’s injury were an \nabnormal EMG/ NCV, positive Lasegue’s sign, and an MRI of the \nlumbosacral spine. (Cl. Ex. 1, P. 63; Cl. Ex. 2, Pp. 10-11). These findings, \nhowever, do not comport with Dr. Burba’s later testimony regarding \nobjective findings. \nBecause the Majority’s characterization of the April 16, 2019 \naccident upon reviewing the video as a light and glancing blow directly \nconflicts with Dr. Burba’s expert opinion that it would require a massive \nunexpected blow where the claimant was unprotected to cause the injuries \nsustained, there can be no doubt that the Majority erred in finding in the \nclaimant’s favor and I must dissent on this point. \nII. There are no objective findings showing that the claimant \nsuffered a compensable injury \n\nLewis-G902784     8  \n \n \n \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\" Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16). There is no requirement that medical \ntestimony be based solely or expressly on objective findings, only that the \nrecord contain supporting objective findings. Singleton v. City of Pine Bluff, \n97 Ark. App. 59, 244 S.W.3d 709 (2006). \nThroughout the course of her treatment, no physician pointed to any \nobjective findings as to the true nature of the claimant’s injury. At her first \nappointment with Dr. Kevin Falwell on May 7, 2019, there was no indication \nof any misalignment or defect in the claimant’s left hip and she presented \nwith a full range of motion. (Cl. Ex. 1, P. 2). Upon review of her April 16, \n2019 x-rays, Dr. Falwell noted that the results were “reportedly normal.” (Cl. \nEx. 1, P. 1).  \nAs discussed above, an MRI ordered by Dr. Lon Burba showed that \nthe “sacrum, iliac wings, and sacroiliac joint spaces are unremarkable. The \npubic bones and pubic symphysis appear within normal limits. No stress-\nrelated marrow edema, fracture, or vascular necrosis.” (Cl. Ex. 1, P. 9). \nThere were no findings of any tears, cartilage loss, bursitis, or fracture. Id. \nPA-C Kenneth Weaver found no “swelling, ecchymosis, or deformity” \nupon examining the claimant on October 11, 2019, and reported that the \n\nLewis-G902784     9  \n \n \nclaimant’s MRI was “essentially negative.” (Cl. Ex. 1, P. 11). Ultimately, PA-\nC Weaver found “[n]o evidence of pathology on physical exam or other \nmodalities of evaluation.” (Cl. Ex. 1, P. 18). In fact, PA-C Weaver informed \nthe claimant he did “not believe the hip is the source of her discomfort today \nthrough any of the studies or treatment I provided.” (Resp. Ex. 1, P. 14). As \nof May 19, 2020, Dr. Burba noted that PA-C Weaver did not feel the \nclaimant’s left hip bursitis was playing any role in her pain. (Cl. Ex. 1, P. 23). \nThe “MRI of the pelvis revealed some fibroids, but the OB/GYN doctor did \nnot think the fibroids were playing a role in her pain. The MRI of the lumbar \nspine revealed some multilevel lumbar degenerative change at L4-5 with \nbilateral foraminal stenosis and this basically results from hypertrophic facet \nosteoarthritis which the radiologist feels causes mild bilateral \nneuroforaminal stenosis.” Id. Dr. Burba ultimately opined that “An MRI of \nthe lumbosacral spine revealed loss of disc height, circumferential annular \nbulge, moderate hypertrophic facet osteoarthritis at L4-5. The EMG \nrevealed mild reduction in the right and left tibial nerves; denervation of the \nC-4 root and the left L-4 root which is actually chronic denervation \nrenervation.” (Cl. Ex. 1, P. 27) (emphasis added). Dr. Burba believed that \nthe source of the claimant’s pain was primarily the L-4 root and \nosteoarthritis. (Cl. Ex. 1, P. 28). \n\nLewis-G902784     10  \n \n \nDr. Carlos Roman with Proper Pain Solutions agreed that there were \nno objective medical findings, opining on June 16, 2020 that claimant’s \n“lumbar spine maintains normal alignment. . . She ambulates without \nassistive device. Muscle tone is appropriate and symmetric” and that the \nclaimant’s complaints were not related to any sciatic nerve distribution. (Cl. \nEx. 1, P. 25). As of November 20, 2020, Dr. Burba determined that the \nclaimant had “evidence of chronic denervation at multiple sites in the LS \nspine which usually relates to deg disc disease.” (Resp. Ex. 1, P. 17-19). In \nhis report dated December 11, 2020, Dr. Burba noted an isotopic bone scan \nof the claimant’s body entirely was normal and a CT angiogram of the \nabdomen and pelvis revealed normal blood flow through to her back and \nlumbosacral plexus. (Cl. Ex. 1, P. 47). “Her EMG done on 11/11/20 \nrevealed a possible early demyelinating motor and sensory polyneuropathy \nwith a mononeuritis multiplex type distribution in the legs and there was \nalso chronic denervation renervation seen at L4, L5, and S1 especially on \nthe left side.” (Cl. Ex. 1, P. 48). \nDr. Jimmy Tucker stated in his report dated April 6, 2021 that the \nclaimant’s MRI did not show any “pathological features that would be \ncausing this pain.” (Resp. Ex. 1, P. 25-28). Dr. Tucker saw the claimant \nagain on July 2, 2021 and reviewed an additional MRI of the claimant’s left \nhip and stated that “[t]he MRI showed no signs of bursitis or inflammation of \n\nLewis-G902784     11  \n \n \nthe greater trochanteric area. . . At this point we have treated her \naggressively for greater trochanteric bursitis and she has been \nnonresponsive her MRI also shows no signs of inflammation or fluid.” \n(Resp. Ex. 1, P. 35). \nWhen asked at his June 8, 2022 deposition what, if any, objective \nfindings he found during his treatment of the claimant, Dr. Burba described \n“unresolving intertrochanteric bursitis of the left hip.” (Cl. Ex. 2, P. 11). This \nwas evidenced by the claimant’s MRIs and “heat in that intertrochanteric \nbursa . . . I can feel fluctuation or sort of an edematous or swollen feeling \nthere, and there’s crepitus in the joint when you move the leg around.” (Cl. \nEx. 2, Pp. 11-12). This statement, however, directly contradicts Dr. Burba’s \nprior statements and PA-C Weaver’s repeated findings. Until Dr. Burba’s \ndeposition, each of the claimant’s treating physicians agreed that bursitis \nwas not the source of the claimant’s ongoing pain. (See Cl. Ex. 1, P. 23). In \nfact, Dr. Burba previously opined that the source of her pain was \ndegenerative disc disease and osteoarthritis specifically. (Cl. Ex. 1, P. 28). \nThere was no evidence of the edema or crepitus that Dr. Burba describes \nwhen the claimant was examined by other physicians. (Resp. Ex. 1, P. 35). \nIn fact, Dr. Tucker reported on July 2, 2021 that the claimant’s most recent \nMRI “showed no signs of bursitis or inflammation of the greater trochanteric \narea. There are some mild effusion in both hips consistent with mild DJD. At \n\nLewis-G902784     12  \n \n \nthis point we have treated her aggressively for greater trochanteric bursitis \nand she has been nonresponsive her MRI also shows no signs of \ninflammation or fluid.” Id. Dr. Burba further describes the claimant’s \nadditional issues as “degenerative disc disease . . . a low-grade neuropathy \n. . . some bulges and some arthritis of the spine” as well as mild gluteal \ntendinosis with no tear. (Cl. Ex. 2, P. 14). These issues are definitively not \nrelated to the claimant’s April 16, 2019 injury. (Cl. Ex. 2, P. 16).  \nIn short, Dr. Burba’s diagnosis changed from “mild bursitis” to \nevidently unresolving and severe just prior to his deposition taking place. \nThe basis for this opinion seems to be not the results of medical testing by \nDr. Burba or any other experts, but rather the feeling of “heat” coming from \nthe claimant’s hip. This simply does not meet the standard of objectivity \nrequired by the Act as Dr. Burba cannot measure heat or crepitus within a \nreasonable degree of medical certainty. The treating physicians in this \nmatter have been addressing subjective concerns and complaints of pain \nfrom the claimant for over four years with no objective findings showing that \nher complaints are work-related. \nIII. The claimant’s testimony is unreliable \nA related issue in this matter is the ALJ’s acceptance of the \nclaimant’s statements as fact where her testimony contradicts the record. A \nclaimant’s testimony is never uncontroverted as a matter of law. Nix v. \n\nLewis-G902784     13  \n \n \nWilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). It is within \nthe exclusive province of the Commission to determine the credibility of a \nwitness and the weight to be given to her testimony. Wade v. Mr. C. \nCavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). \nAt the hearing, claimant’s husband testified that “no issues right at \nthat time” with her back, hip, or while walking prior to her injury at Walmart. \n(Hrng. Tr., P. 8). Mr. Lewis further stated that she did not make complaints \nabout her back and neck “like she did after the injury.” (Hrng. Tr., P. 10). At \nher deposition on December 5, 2019, the claimant denied any previous \nneck pain, and contended that any previous treatment for her back was for \na fall as a teenager. (Cl. Depo., Pp. 53-54). However, one year prior to the \nWalmart accident, the claimant slipped in her bathroom and required \nmedical treatment for a left knee injury. (Joint Ex. 1, P. 1; Resp. Ex. 1, P. 1). \nThe claimant sought treatment for this injury with Dr. Jeffery Angel on April \n16, 2018 and an MRI and x-ray were performed. (Joint Ex. 1, P. 1; Hrng. \nTr., P. 48). Dr. Angel’s findings showed lumbosacral spine-left paraspinal \ntenderness. (Joint Ex. 1, P. 1). \nThe claimant later visited Sherwood Urgent Care in Batesville on \nJune 11, 2018 complaining of back pain and tightness. (Resp. Ex. 1, Pp. 2-\n4). At that time, she was diagnosed with a lumbar sprain and received a \nsteroid injection. Id. The claimant’s testimony disregards this history as \n\nLewis-G902784     14  \n \n \ndoes the Majority. Because the nature of this claim hinges on the reliability \nof the claimant’s testimony, I believe the Majority erred in relying on her \nwholly controverted testimony alone. \nFor the reasons stated above, I respectfully dissent. \n  \n \n                                                           ______________________________                                  \n                                                MICHAEL R. MAYTON, Commissioner","textLength":19385,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G902784 BETTY A. LEWIS, EMPLOYEE CLAIMANT WAL-MART ASSOCIATES, INC., EMPLOYER RESPONDENT NO. 1 WAL-MART CLAIMS SERVICES INSURANCE CARRIER/TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPIN...","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["hip","back","fracture","lumbar","neck","knee","sprain"],"fetchedAt":"2026-05-19T22:29:46.189Z"},{"id":"alj-H202631-2023-08-28","awccNumber":"H202631","decisionDate":"2023-08-28","decisionYear":2023,"opinionType":"alj","claimantName":"Abraham Kassees","employerName":"Best Park, LLC","title":"KASSEES VS. BEST PARK, LLC AWCC# H202631 AUGUST 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//KASSEES_ABRAHAM_H202631_20230828.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KASSEES_ABRAHAM_H202631_20230828.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H202631 \n \n \nABRAHAM KASSEES, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nBEST PARK, LLC,   \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nBRIDGEFIELD CASUALTY INSURANCE COMPANY,  \nINSURANCE CARRIER                                                                                        RESPONDENT \n  \nSUMMIT CONSULTING, LLC, \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED AUGUST 28, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, failed to appear at the hearing.  \n \nRespondents  represented  by  the  Honorable  Zachary  F.  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A  hearing  was  held  on  July  12,  2023  in  the  above-captioned  case  pursuant  to  Dillard  v. \nBenton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), for a determination \nof  whether  this  claim for  workers’  compensation  benefits  should  be  dismissed  due  to  the \nClaimant’s failure to prosecute it under the provisions of Ark. Code Ann. §11-9-702 (Repl. 2012) \nand Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was attempted on all parties to their last known address, \nin the manner prescribed by law.   \n\nKassees – H202631 \n \n2 \n \nThe  record  consists  of  the  transcript  of  the  July  12,  2023,  hearing  and  the  documents \ncontained therein. Additionally, the entire Commission’s file has been made a part of the record.  \nIt is hereby incorporated herein by reference.    \n                                                                    Discussion \n On  April  27,  2022,  the Claimant’s attorney  filed  a  Form  AR-C  with  the  Commission \nasserting  his  entitlement  to  Arkansas workers’  compensation  benefits.  He  alleged  that  the \nClaimant sustained compensable injuries to his back, left side, left knee, and groin on March 17, \n2022, while performing his employment duties for the respondent-employer.  Counsel asserted the \nClaimant’s entitlement to only additional workers’ compensation benefits.  Specifically, counsel    \nrequested  additional workers’ compensation benefits  for  the  Claimant,  namely  in  the  form  of \ntemporary  total  disability,  temporary partial disability, rehabilitation and an attorney’s  fee  in \nconnection with this claim. \n The respondent-insurance carrier filed a Form AR-2 with the Commission on April 4, 2022, \naccepting  this  as  a  medical  only  claim.    Further,  the  adjuster  explicitly  stated  on  this  form  the \nfollowing: “Partial Denial/The  employer/carrier  is  denying  indemnity  in  whole.    Compensable \nmedical benefits.  Light duty work is available with the employer.”    \n On May 10, 2022, the  claims specialist for the  carrier wrote a letter to the Commission.  \nSpecifically,  the  specialist  wrote: “In  response  to  the  Form  AR-C  filed  in  this  matter,  the \nRespondents have controverted the above referenced claim its entirety.”   \nAs a result, the prehearing process was started by the Commission.  On October 26, 2022, \na Prehearing Order was entered in this matter setting the claim for a full hearing on November 30, \n2022.  However, on November 18, 2022, the parties notified the Commission that they had reached \na settlement agreement in this matter and asked that the full hearing be removed from the docket,  \n\nKassees – H202631 \n \n3 \n \nwhich  was  done.  At  that  time,  the  parties  filed  with  the  Commission  a  proposed  Joint \nPetition for Final Settlement and a Joint Petition Hearing was scheduled in lieu of the full hearing.  \nThe Respondents filed with the Commission a revised settlement agreement changing some of the \nlanguage regarding the previous medical expenses. \nOn November 28, 2022, the Claimant’s attorney notified the Commission via email that \nthe  Claimant  was  having  second  thoughts  about  the  settlement  and  that  he  needed  a  little  more \ntime  to  think  about  it.    Therefore,  the  settlement  hearing  was  removed  from  the  docket  and  the \nclaim was forwarded to the Clerk’s Office for the case to be returned to the Commission’s general \nfiles. \n On  December  22,  2022,  the  Claimant’s  attorney filed  a  motion  to  withdraw  from \nrepresenting the Claimant in his claim for workers’ compensation benefits.  The Full Commission \ngranted the motion for the Claimant’s attorney to withdraw from representing the Claimant in this \nmatter on January 5, 2023.  \n The Respondents filed a motion to dismiss the case on January 6, 2023, with a certificate \nof  service  to  the  Claimant, as  a  copy  of  the  above  pleading  was  mailed  to  the  Claimant.    The \nClaimant requested a hearing on February 10, 2023, and he also asked for more time to prepare.  \nHence,  the  prehearing  process  was  started  all  over  again  on  February  13,  2023.    However,  the \nClaimant notified the Commission on March 1 that he needed more time to get well and finish his \nongoing medical tests.  Therefore, on March 6, 2023, the Claimant was given an additional ninety \n(90) days to recuperate and prosecute his claim.  As a result, the Respondents’ motion for dismissal \nof this claim was held in abeyance.   \nYet, during this three-month period of time, the Claimant did not take any action to resolve \nhis claim and he failed to request a hearing.  \n\nKassees – H202631 \n \n4 \n \nTherefore, on June 6,  2023, the Respondents’ attorney sent  an  email to the Commission \nrequesting a ruling on their motion because he had not heard from the Claimant.          \n  Pursuant  to  a  Hearing  Notice  dated June  13,  2023,  the  Commission  notified  the  parties \nthat a hearing was scheduled to address the Respondents’ motion to dismiss this claim due to a \nlack of prosecution.  The notice was sent to the Claimant via certified and first-class mail.  Said \nhearing was scheduled for July 12, 2023, at 1:00 p.m. in Little Rock, Arkansas at the Commission.  \nThe hearing notice was returned to the Commission marked unable to locate any delivery \ninformation.  \nStill, there has been no response from the Claimant.  \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Claimant failed to appear at the dismissal hearing.  However, the Respondents \nappeared through their attorney.   \nCounsel explicitly noted that the Claimant has failed to promptly prosecute his claim for \nworkers’ compensation benefits  since  the  filing  of  the  Form  AR-C  in  April  2022.    Therefore, \ncounsel  moved  that  this  claim  be  dismissed  under  Ark.  Code  Ann.  §11-9-702  and  Arkansas \nWorkers’ Compensation Commission Rule 099.13, without prejudice due to a lack of prosecution.  \nThe record before me proves that the Claimant has failed to timely prosecute his claim for \nworkers’ compensation benefits.  The Claimant failed to appear at the hearing to object to his claim \nbeing dismissed and he has not responded to the hearing notice of this Commission.  Under these \ncircumstances,  I  am  compelled  to  find  that  the  evidence  preponderates  that  the  Claimant  has \nabandoned  his  claim.  Accordingly,  per  Ark.  Code  Ann.  §11-9-702  and  Rule  099.13  of  this \nCommission,  I  find  that  this  claim  should  be  and  is  hereby  respectfully  dismissed, without \nprejudice to the refiling of it with the limitation period specified by law.   \n\nKassees – H202631 \n \n5 \n \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission, a motion for dismissal of this \nclaim due to a lack of prosecution of by the Claimant, for which a hearing \nwas held. \n \n3. The  Claimant  has  not  made  a  bona  fide  request  for  a  hearing  since  his \nattorney  was  allowed  to  withdraw  from  representing  him  in  this  matter, \nwhich was some eight months ago.  Hence, the evidence preponderates that \nthe  Claimant  failed  to  prosecute  his claim  for  workers’  compensation \nbenefits.      \n \n4. Appropriate Notice of the dismissal hearing was tried on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby granted, without prejudice, pursuant to Ark. Code Ann. §11-9-702 \nand  Commission  Rule  099.13,  to  the  refiling  of  it  within  the  limitation \nperiod specified by law.  \n \nORDER \n In accordance with the findings set forth above, this claim is hereby dismissed pursuant to \nArk.  Code  Ann.  §11-9-702  and  Arkansas Workers’ Compensation Commission Rule  099.13, \nwithout prejudice, to the refiling of it, within the limitation period specified by law.  \nIT IS SO ORDERED. \n \n  \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":9651,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H202631 ABRAHAM KASSEES, EMPLOYEE CLAIMANT BEST PARK, LLC, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT SUMMIT CONSULTING, LLC, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 28, 2023 Hearing held befo...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["back","knee"],"fetchedAt":"2026-05-19T23:04:20.177Z"},{"id":"alj-H206747-2023-08-28","awccNumber":"H206747","decisionDate":"2023-08-28","decisionYear":2023,"opinionType":"alj","claimantName":"Susan Williams","employerName":"Trumann Sch. Dist","title":"WILLIAMS VS. TRUMANN SCH. DIST. AWCC# H206747 AUGUST 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Williams_Susan_H206747_20230828.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Williams_Susan_H206747_20230828.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206747 \n \n \nSUSAN G. WILLIAMS, EMPLOYEE CLAIMANT \n \nTRUMANN SCH. DIST., \nSELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCH. BDS. ASSN., \nTHIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED AUGUST 28, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on August 18, 2023, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant   represented   by   Mr.   Jim   R.   Burton,   Attorney   at   Law,   Jonesboro, \nArkansas (neither appearing). \n \nRespondents  represented  by  Ms.  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.  A  hearing  on  the  motion  was  conducted  on  August  18,  2023,  in \nJonesboro, Arkansas.  No testimony was taken in the case.  Neither Claimant nor \nher counsel appeared at the hearing.  Without objection, the Commission’s file on \nthe claim has been incorporated herein in its entirety by reference.  Admitted into \nevidence  was  Respondents’  Exhibit  1—forms,  pleadings  and  correspondence \nrelated to the claim—consisting of one (1) index page and thirteen (13) numbered \npages thereafter. \n\nWILLIAMS – H206747 \n \n2 \n \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on September  20,  2022, \nClaimant  purportedly  injured  her  left  foot  at  work  on  September  16,  2022.  \nAccording to the Form AR-2 that was filed on September 29, 2022, Respondents \naccepted  the  injury  as  compensable  and  paid  medical  and  temporary  total \ndisability benefits pursuant thereto.   \n Claimant has not filed a Form AR-C in this matter.  However, on November \n8, 2022, she (at that time pro se) emailed the Commission: \nMy  name  is  Susan  Grace  Williams.    I  am  requesting  a  hearing  for \nadditional  workman’s  compensation  benefits.    The  claim  is  over \n$2,500 and I am willing to go to mediation. \n \nThis communication is legally sufficient to constitute a claim for additional benefits \nunder Ark. Code Ann. § 11-9-702(c) (Repl. 2012), which reads: \nA claim for additional compensation must specifically state that it is a \nclaim   for   additional   compensation.      Documents   which   do   not \nspecifically  request  additional  benefits  shall  not  be  considered  a \nclaim for additional compensation. \n \nSee  White  Cty.  Judge  v. Menser,  2020  Ark.  140,  597  S.W.3d  640.  She  later \nwithdrew  her  hearing  request  that  same  day.    But  just  two  days  later,  on \nNovember 10, 2022, she renewed the request. \n Respondents’  counsel  entered  her  appearance  on  their  behalf  before  the \nCommission  on  November 16,  2022.    Claimant’s  counsel  followed  suit  on \nNovember  28,  2022.  On  November  18,  2022,  Respondents  indicated  that  they \nwere willing to mediate the matter.  After months of unsuccessful efforts to set up \n\nWILLIAMS – H206747 \n \n3 \n \n \na mediation conference, the file was returned to the Commission’s general files on \nFebruary 20, 2023. \n No  further  activity  occurred  on  this  claim  until  May  10,  2023,  when \nRespondents  filed  the  instant  Motion  to  Dismiss.    Therein,  they  alleged  that \ndismissal of the claim was called for under AWCC R. 099.13 and Ark. Code Ann. \n§   11-9-702  because  Claimant had  not  sought  a  hearing  before  the  Commission \nover  the  previous  six  months.  On  May  30,  2023,  my  office  wrote  both  Claimant \nand  her  attorney,  giving  them  20  days  to  respond  to  the  motion.    However, no \nresponse to the motion was forthcoming. \n On  June  27,  2023,  I  scheduled  a  hearing  on  the  Motion  to  Dismiss  for \nAugust 18,   2023,   at   11:30   a.m.   at   the   Craighead   County   Courthouse   in \nJonesboro.  The hearing notice was sent not only to the attorneys of record, but to \nClaimant at  the  address  for  her  listed  in  the  file.    She  or  someone  on  her  behalf \nsigned  for  the  certified  mail  on  June  29,  2023;  and  the  first-class  mail  was  not \nreturned. \n The  hearing  on  the  Motion to  Dismiss  proceeded  as  scheduled  on August \n18, 2023.  Neither Claimant nor her attorney made an appearance.  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthorities. \n\nWILLIAMS – H206747 \n \n4 \n \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n\nWILLIAMS – H206747 \n \n5 \n \n \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nclaim–by  a  preponderance  of  the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue the claim because she has taken no further action in \npursuit of it—including appearing at the August 18, 2023, hearing to argue against \nits dismissal—since the November 10, 2022, hearing request.  Thus, the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nit  is  unnecessary  to  address the  applicability  of  Ark.  Code  Ann.  § 11-9-702(d) \n(Repl. 2012). \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n\nWILLIAMS – H206747 \n \n6 \n \n \n(Emphasis  added)(citing Professional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of the claim should be and hereby is entered without prejudice. \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7939,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H206747 SUSAN G. WILLIAMS, EMPLOYEE CLAIMANT TRUMANN SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCH. BDS. ASSN., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 28, 2023 Hearing before Administrative Law Judge O. Milton Fine II on August 18, ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:04:22.241Z"},{"id":"alj-H006469-2023-08-25","awccNumber":"H006469","decisionDate":"2023-08-25","decisionYear":2023,"opinionType":"alj","claimantName":"James Brown","employerName":"L & R Distributors, Inc","title":"BROWN VS. L & R DISTRIBUTORS, INC. AWCC# H006469 AUGUST 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BROWN_JAMES_H006469_20230825.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BROWN_JAMES_H006469_20230825.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H006469 \n \nJAMES W. BROWN, EMPLOYEE       CLAIMANT \n \nL & R DISTRIBUTORS, INC., EMPLOYER          RESPONDENT \n \nLIBERTY MUTUAL FIRE INSURANCE COMPANY,           \nCARRIER/TPA                   RESPONDENT \n \n \nOPINION FILED 25 AUGUST 2023 \n \n \nOn  hearing  before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, 9 March 2023, Pine Bluff, Jefferson County, Arkansas. \n \nMr.  Steven R. McNeely,  Attorney-at-Law,  of  Jacksonville,  Arkansas, appeared for  the \nclaimant. \n \nMr. Jason M. Ryburn,  Attorney-at-Law,  of  Little  Rock,  Arkansas, appeared for  the \nrespondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 9 March 2023 in Pine Bluff, Arkansas, after the \nparties participated in a prehearing telephone conference on 24 January 2023.  A Prehearing \nOrder, admitted to the record without objection as Commission’s Exhibit No 1, was entered \non 25 January 2023. The Order stated the following ISSUES TO BE LITIGATED: \n1.   Whether  the  claimant is  entitled  to  additional  indemnity  benefits  and  medical \ntreatment. \n \n2.  Whether the claimant is entitled to any attorney’s fee. \nAll other ISSUES were reserved. \nThat Order set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n\nJ. Brown- H006469  \n2 \n \n2.    An  employee/employer/carrier  relationship  existed  on  24  August  2020 when  he \nsustained a compensable injury to his back.\n1\n \n \n3.  The respondents accepted the back injury and paid accompanying benefits, including \npayment for a back surgery. \n \n4.  The respondents denied an injury to the claimant’s right foot \n5. The parties would stipulate to the applicable compensation rates. \nThe claimant was the sole WITNESS at the hearing. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere  incorporated by  reference  into  the  Prehearing  Order. Those  responses  were  also \nadmitted to the record as Commission’s Exhibit Nos 2 (for the claimant) and 3 (for the \nrespondents). The CLAIMANT CONTENDS: \n1.  That he is entitled to additional TTD for his back injury through his return to work on \n21 December 2020. \n \n2.  That he is entitled to reimbursement for purchasing a power lift recliner, an adjustable \nbed, and a Teeter inversion table. \n \n3.  That he is entitled to additional mileage. \n \n4.  That he is entitled to medical treatment, to include a surgical procedure, and additional \nTTD for his right foot. \n \nThe RESPONDENTS CONTEND: \n1.  That all appropriate benefits have been paid and that the statute of limitations bar \nportions of the additional claims sought. \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1\n The  Order  correctly  notes  that  the  claimant  sustained  a  compensable  injury  to  his  back.  It \nerroneously states, at Stipulations Paragraph 2, that he also sustained an injury to his right foot. As \nnoted  in  Stipulations  Paragraph  4,  and  consistent  with  the  respondents’  actual  position,  the \nrespondents denied a compensable injury to the claimant’s right foot. This was addressed on the record \nbefore any testimony was offered. See TR at 8. \n\nJ. Brown- H006469  \n3 \n \nHaving  reviewed  the  record  as  a  whole  and  having  heard  testimony  from  the  witness, \nobserving his demeanor, I make the following findings of fact and conclusions of law under \nArk. Code Ann. § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n \n2. The  previously  noted  stipulations  are  accepted,  specifically  that  a  back  injury  was \naccepted as compensable, but not the claimant’s foot injury. \n \n3. The  claimant produced  a  preponderance  of  evidence  that  his  TTD  benefits  were \nunderpaid due to a mathematical error on the Form W and is entitled to the balance owed \nfor the underpaid TTD benefits. \n \n4.  The claimant failed to prove, by a preponderance of the evidence, that he was entitled \nto TTD benefits between the last posted payment and his return to work on 21 December \n2020. \n \n5. The claimant failed to prove, by a preponderance of the evidence, that he suffered a \ncompensable foot injury, that he is entitled to additional TTD benefits related to his foot, \nand that he is entitled to additional treatment related to treatment for his foot. \n \n6.  The claimant failed to prove, by a preponderance of the evidence, that the purchase of \nan adjustable bed, power recliner, and Teeter device were reasonable and necessary for \nthe treatment of any health condition. \n \n7.  The claimant is entitled to mileage associated with approved care for his back injury. \n \n8. The claimant’s attorney is entitled to a fee in an amount consistent with the indemnity \nbenefits noted above. \n \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE                                                                                                        \nA. Claimant on Direct Examination  \nJames Wesley Brown is a fifty-three (53) year old man who began working for L & R \nDistributors in 2009 and remained employed there at the time(s) relevant to this case. [TR \nat 13]  He was working as a warehouse supervisor in August of 2020 and was responsible for \nensuring  merchandise  moved  from  one  area  of  the  warehouse  to  another.  [TR  17-18]  Mr. \nBrown stated that he injured his back on 24 August 2020 while operating a stand-up forklift. \n[TR at 19]   He felt a “tweak” when the forklift bumped over a crack in the floor. \n\nJ. Brown- H006469  \n4 \n \nThe claimant felt increasing pain through that night and reported the injury the next \nday. [TR at 20] He was sent to Healthcare Works and was initially taken off work pending \nfurther diagnosis  and  treatment.  He ultimately  did  not  return  to work  until  21  December \n2020. [TR at 28] \nMr. Brown stated that he did not experience any specific incident or injury to his foot, \nseparate from the incident that he claimed injured his back. [TR at 29] He said that he was \npaid  TTD  beginning  in  August  and  through  October.  He  acknowledged  the  payments \nreflected on the respondents’ payment printout [see Cl. Ex. No 2 at 18-19], but denies receipt \nof the last payment listed, which would have covered 26 October to 8 November 2020. [TR at \n30] The claimant stated that he returned to work at light duty on 21 December 2020. [TR at \n31] \nThe claimant said that he did not care much for Dr. Paulus, who was treating him at \nthe end of 2020 and who returned him to work without any restrictions. [TR at 32-33] When \nan adjuster explained that his benefits stopped, he sought a Change of Physician.  Mr. Brown \nalso took issue with his mileage payments stopping after Dr. Paulas released him to work. \n[TR at 33-34] \nMr. Jones was later seen by Dr. Samuel Overly at UAMS, who eventually performed \na spinal decompression and fusion surgery on 15 November 2021. [TR at 36, Cl. Ex. No 1 at \n76-83]  The claimant said  that the surgery  helped  his  back pain.  About  a year\n2\n before the \nsurgery, he bought an adjustable bed, which he claims he “had to get.” [TR  at  38] He  also \nbought a power lift recliner and Teeter Hang Up inversion table. [TR at 39-40] He does not \n \n2\n Claimant  erroneously  testified  that  he  purchased  the  bed  about  a  month before  the  surgery.  The \nrecords,  however,  reveal  that  the  surgery  was  in  November  of  2021  and  the  bed  was  purchased  in \nOctober of 2020. \n\nJ. Brown- H006469  \n5 \n \ntake issue with his TTD benefits paid between his surgery in November and his subsequent \nreturn to work in February. [TR at 41] \nWhile Dr. Overly was seeing the claimant for his back, he referred Mr. Brown to Dr. \nChelsea Matthews for the ongoing nerve issue in his foot. [TR at 42]  The claimant is seeking \npayment for surgery to address the nerve issue in his foot. [TR at 43]  He said that he began \nreporting  trouble  with  his  foot  when  he  was  seeing  providers  for  his  back  problem.  He \nsuffered no injury or trauma to his foot. [TR at 44]  \nAfter  returning  to  work  at  L  &  R,  the  claimant  continued  until  his  position  was \neliminated after a management change. [TR at 45] He signed a separation agreement and \nreceived $8,034.00 in severance under the terms of the agreement. \nApart  from  his  employment  with  the  respondents,  the  claimant  also  worked  for \nHoliday Inn, beginning around August of 2021.  In November of 2022, after separating from \nL  &  R,  the  claimant  filed  for  unemployment.  [TR  at  47]  His  unemployment  claim  was \naccepted, and he began receiving benefits accordingly. [TR at 48] \nThe claimant closed his direct examination by explaining that he hopes to find new \nwork and reiterating his request for reimbursement for the bed, recliner, and Teeter device. \n[TR at 49]  On brief examination from the Commission, he did not dispute that Dr. Matthews \nnoted in February of 2022 that he had no work restrictions. [TR at 50]  \nB. Claimant on Cross Examination by Mr. Ryburn \nMr.   Brown   stated   again   that   he   denied   receiving   TTD   payments   for   the \nOctober/November   period in   2020.   [TR at   51] Mr.   Ryburn   noted   the respondents’ \ndocumentation showed the check being issued, but did not have any record proving that it \nwas actually deposited by the claimant. [TR at 52] \nThe claimant confirmed that he was let go from his employment, along with several \nothers, as part of a restructuring. Id. On the issue of whether his foot problem was related to \n\nJ. Brown- H006469  \n6 \n \nhis back injury, counsel asked, “it turned out to be a Morton’s neuroma, and not radicular \npain referred from your back?” [TR at 55] Claimant answered, “Well, that’s what they called \nit. I don’t know. But that’s what, you know, they called it when I started complaining to them \nabout it.” Id. \nMr. Brown acknowledged a previous injury to his foot that he failed to report to his \nproviders when seeking treatment relevant to this case. [TR at 56]  He said that was “because \nI didn’t feel it at the time.” Id.  He also agreed that he did not list a foot injury on his Form \nAR-C in this case was dated October of 2022. [TR at 57]  Nor did he list his foot on the Form \nAR-N, Employee’s Notice of Injury, dated September of 2020. [TR at 58] \nAfter  surgery,  Dr.  Overly charted  that the claimant “had complete resolution of \nradicular issues.  He is still having pain the right foot that is likely a Morton’s neuroma.  I’m \nreferring him to see my partner, Dr. Matthews, for this.” [TR at 59]  Dr. Matthews listed the \nMorton’s neuroma as a chronic problem. [TR at 58]  On  the  distinction  between  his  back \ninjury  and  the  foot  issue, respondents’ counsel asked, “in your mind,  the  fact  that  the \nradicular pain was going down your right leg and you have a Morton’s neuroma in your right \nfoot, that those things must be tied together?”  The claimant answered, “Yes, sir, for me it is. \nYes, sir.” [TR at 61] He then reaffirmed that he suffered no specific injury to his foot around \nthe time that he began complaining about it to the providers.  When asked, “can you point \nout an instance in Dr. Overly’s reports where he said a Morton’s neuroma is caused by a back \ninjury?” he admitted, “I can’t point that out... but anything can happen to the body.” [TR at \n62] \nMr. Brown went on to agree that his severance was paid out by the respondents as \nagreed and that it was paid out as “salary continuation.” [TR at 65]  \nHe acknowledged that when applying for unemployment benefits he said that he was \nwilling and able to work. [TR at 66] “Yes, sir, I did do that, because I was wanting my check.” \n\nJ. Brown- H006469  \n7 \n \nRegarding the conflict between that statement and his present claim for TTD related to the \nfoot issue, he admitted that he was “willing to state on that unemployment application that \n[he was] not temporarily and totally disabled by saying that [he] could work.” [TR at 67] He \nwent on to say, “I don’t think I ever lied.” [TR at 70] \nQ:  But you did to the Department of Workforce Services. \n \nA:  About when they said was I was able to work? \n \nQ:  Correct. \n \nA:  Well, that wasn’t intentionally. Like I said, I did it based upon to get my \ncheck... I was looking to receive my check, cause I’ve got bills to pay. \n \nQ:  And you’re looking to receive a check now, are you not, from this workers’ \ncomp claim? \n \nA:  Yes, sir.   Id. \n  \n Regarding the medical bed, recliner,  and  Teeter  device, the  claimant acknowledged \nthat they do not appear mentioned in the medical records until more than two (2) years after \nthe purchase of the bed, when Dr. Overly noted that he was seeking reimbursement through \nWorkers’ Compensation for those purchases. [TR at 72] On examination by the Commission, \nthe claimant acknowledged that he could not point to any place in the medical record prior \nto  purchasing  any  of  the  devices  where  they  were  ordered  or  recommended  by  a  treating \nphysician. [TR at 75] He nonetheless maintained that someone told him at some point in his \ntreatments that he should buy them. [TR at 75-76] \nC.  Claimant on Redirect and Recross \n The claimant offered brief testimony around the TTD payment he claims he did not \nreceive, with counsel noting that the coding on the payment sheet [Cl. Ex. No 2 at 18-19] was \ndifferent  for the  October/November check  versus  those  issued  before  it.  No  party  from  the \nrespondent was present to explain the payment coding.  \n\nJ. Brown- H006469  \n8 \n \n The  entire  file  was  incorporated  by  reference  and,  pending  receipt of post-hearing \nbriefs, the case was submitted. \n D.  Post-hearing Briefing \n Upon conclusion of the testimony, post-hearing briefing was discussed. By agreement, \nthose briefs were due by Friday, 7 April 2023. Both parties offered timely submitted filings. \n In  his  brief,  the  claimant  urged that  he  was  entitled  to:  (1) a  correction  in  the \ncompensation rates paid for the TTD benefits he received; (2) benefits for the foot issues; (3) \nadditional  TTD benefits  between  the  last  Respondent-noted  payment  and  his self-reported \nreturn  to  work  on or  about 20  December  2020; (4) reimbursement  for  the  medical  bed, \nrecliner, and Teeter device; (5) additional mileage; (6) denial of any respondent credit for the \nseverance payments; and (7) attorney’s fees.  [See, generally, Cl. Brief] \n In its simultaneously submitted brief, the respondents argued: (1) that the claimant \ndid not sustain a compensable foot injury; (2) that he was not a credible witness; (3) that the \nseverance payments foreclosed any right to TTD during the time relevant to those payments; \nand  (4)  that  he  was  not  entitled to  any  reimbursement  for  the  medical  devices.  [See, \ngenerally, Resp. Brief] \nIV.  ADJUDICATION \n The  stipulated facts are  outlined  above. It  is settled that  the  Commission, with the \nbenefit of being in the presence of the witness and observing his or her demeanor, determines \na witness’ credibility and the appropriate weight to accord their statements. See Wal-Mart \nStores, Inc. v. VanWagner, 337 Ark. 443, 448, 990 S.W.2d 522 (1999).   \nA.  The Claimant is Entitled to Additional Monies for Underpaid TTD Benefits for  his \nBack Injury.  \n \nThe   claimant   notes   a   discrepancy   in   the   wage   information   provided   by   the \nrespondents and the information provided to the Commission from which his TTD payments \n\nJ. Brown- H006469  \n9 \n \nwere  calculated.  The  respondents  offer  no  explanation  for  why  the  total  wage  amount  of \n$32,509.08  [Cl. Ex. No 2 at 24]  is  not used  for  the gross  wage calculations  appearing on \nForm W [Cl. Ex. No 2 at 26]. The $32,468.90 and $31,993.88 totals appearing on the Form W \nappear  to  be  entered  on  the  form  in  error.  The  TTD  benefit  payments  should  be  adjusted \naccordingly, with the claimant being entitled to the balance owed against the miscalculated \namounts.  \nAdditionally,  the  claimant  asserts  that  he  did  not  receive  the  terminal  payment  on \n2020  TTD  benefits  for  the  period  listed  as  26  October  2020  to  8  November  2020.  At  the \nhearing,  the  respondents  offered  no  proof  of  receipt  or  deposit  by  the  claimant  on  that \npayment. Absent presentation of proof of the claimant’s actual receipt of those funds, he is \nentitled to a reissue of that payment in the adjusted amount noted above. \nB.  The Claimant Failed to Prove that he was Entitled to Additional TTD in 2020 on \nhis Back Injury.  \n \nTemporary total disability (TTD) is that period within the healing period in which the \nemployee  suffers  a  total  incapacity  to  earn wages. See Ark.  State Hwy. Dept.  v.  Breshears, \n272 Ark. 244, 613 S.W.2d 392 (1981). Gaps appear in the claimant’s medical documentation \nsupporting  his time  off work. Here,  the medical  evidence  shows  that  the  claimant  was  \nfirst taken  off  work  until  31 August 2020  after  his  initial  presentation  to  a  provider  \non  25 August 2020.  [See Cl. Ex. No 1 at 2, 6]  At  the  next  appointment,  he  was  kept  off  \nwork  until 7 September 2020. Id. at 11. Another note shows him ordered off work until 6 \nOctober 2022. Id. at 16. \nMr. Brown then saw Dr. Paulus for the first time on 20 October 2020. Id. at 17. Dr. \nPaulus noted, “I’m not sure the chronic pathology noted by the radiologist on MRI fits with \nthis mechanism  of injury, but again I’d like to  review the MRI myself.” Id. at  20.  He \nprescribed  physical  therapy  and  Gabapentin,  but  did  not  order  the  claimant  off  work. Id. \n\nJ. Brown- H006469  \n10 \n \nTestifying about having to return to work, the claimant stated, “if I wouldn’t have came [sic] \nback, then they was going to terminate me. And I was trying to get, what led me there was \nthe note that the nurse sent to [the insurance adjuster] Ms. Dianne Day saying I could come \nback full duty with no restrictions. And that was my first meeting with their doctor, Stephen \nPaulus.” [TR at 32] That return-to-work note does not appear in the record.  \nThe claimant testified at the hearing: \nQ: ... And explain to the judge why you think you were disabled during \nthat period of time, the problems you were having. \n \nA:  Oh, why they didn’t pay me? \n \nQ:  No, why you weren’t working. \n \nA:  Oh, because I couldn’t work, I mean, because of my, like I said, my \nback and what I do at the job, so I couldn’t at the time. \n \nQ:  All right.   [TR at 31] \n \nDr. Paulus next saw the claimant on 5 November 2020  stating again that, “[g]iven \nthe nature of his degenerative changes noted on imaging, I’m not sure the chronic pathology \nfits with this mechanism of injury.” Id. at 23. They discussed possible injections for his back \npain, but no work restrictions were ordered. \nThat visit appears to correlate with the time that the TTD payments stopped and with \nthe time that the claimant explains he was told by the adjuster that the respondents were \n“not going to pay you anymore because they said you had no restrictions.” [TR at 33] He \nobjected and was told the “only way I [the respondents] can start paying you back again is \nfor you to go back and have them to overrule that return to work notice.” Id.  \nAfter returning to work on 21 December 2020, the claimant presented to Dr. Paulus \nfor the last time. The 31 December 2020 physician’s note states: \nI had a lengthy conversation with Mr. Brown, his wife, and our WCC \nliaison Zorian about the pathophysiology of his symptoms, physician-directed \nwork restrictions vs self-imposed limitations, work safety, and the causality (or \n\nJ. Brown- H006469  \n11 \n \nin this case, I believe the lack thereof) between the work accident he described \nand the chronic pathology revealed by his advanced imaging. I offered for him \nto seek a second opinion, as he’s clearly displeased that (A) I have continued \nhis  work  status  and  (B)  that  I  cannot  causally  link  his  injury  to  the  MRI \nfindings, and he will contact his worker’s compensation adjuster with his \ndecision...  [See Cl. Ex. No 1 at 27] (emphasis added).  \n \nDr.  Paulus  provided  a  work  notice  on  the  day  of  that  visit  making  clear that  the \nclaimant had no physician-directed work restrictions. Id. at 28. \n Even absent the availability of the actual return-to-work form noted earlier, there is \nclear evidence that the claimant chose, of his own accord, not to return to work.\n3\n The claimant \noffers little beyond his own belief to advance his (otherwise unsupported) claim for additional \nTTD benefits before returning to work in December. The record does not indicate a finding \nthat he was both within a healing period and totally incapacitated from earning wages during \nthe relevant times. See, e.g., Davis v. Remington Arms Co., 2018 Ark. App. 390, 557 S.W.3d \n894. He is, therefore, not entitled to the additional TTD benefits sought for his back injury in \n2020. \nC.  The Claimant Failed to Prove by a Preponderance of the Evidence that he Suffered \na Compensable Foot Injury. \n \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving, \nby a preponderance of the evidence, that he sustained a compensable injury. Ark. Code Ann. \n§ 11-9-102(4)(E)(i).  A compensable injury must be established by medical evidence supported \nby objective findings. Ark. Code Ann. § 11-9-102(4)(D). The parties stipulated to an accepted \nback injury, but they do not agree on whether the claimant also suffered a compensable work \ninjury to his foot while driving a forklift. He is not clear as to whether the foot problem arose \nas  gradual  onset  or  by  specific  incident,  though  the  specific  incident  of  driving  the  forklift \n \n3\n The claimant makes no allegation that he was threatened with termination for absenteeism during \nany period of time off work actually ordered by a physician or provider. Instead, it appears his refusal \nto return to work because he disagreed with Dr. Paulus led to the threat of termination for the same. \n\nJ. Brown- H006469  \n12 \n \nover  the  cracked floor  seems  most  likely  from  his  testimony. Regardless,  his claim  for  a \ncompensable foot injury fails either way. \nTo prove a specific incident injury, the claimant must establish four (4) factors, by a \npreponderance of the evidence: (1) that the injury arouse during the course of employment; \n(2) that the injury caused an actual harm that required medical attention; (3) that objective \nfindings  support  the  medical  evidence;  and  (4)  that  the  injury  was  caused  by  a  particular \nincident, identifiable in time and place. See Cossey v. G. A. Thomas Racing Stable, 2009 Ark. \nApp. 666,5, 344 S.W.3d 684, 689. \nTo prevail on that claim for a gradual onset injury, he must prove, by a preponderance \nof the evidence that: (1) the injury arose from his employment; (2) the injury caused actual \nharm that required medical attention; and (3) the injury was a major cause of the need for \ntreatment.  The  existence  and  extent  of  the  injury  must  be  proven  by  objective  medical \nevidence. See Wal-Mart Stores, Inc., supra at 446; Ark. Code Ann. 11-9-102(4)(E)(ii). For an \ninjury to be considered a “major cause” for a need for treatment, it must be more than fifty \npercent  (50%) of  the  cause  and  it  must  be  established, by  a  preponderance of  the  medical \nevidence. Ark. Code Ann. §11-9-102(14)(A-B). \nThe claimant failed to prove, by a preponderance of the evidence, that he sustained a \ncompensable foot injury under either theory. While his foot complaints appear regularly in \nthe medical records, he cannot show a causal link between his driving a forklift in August of \n2020  or  some  other  workplace  conditions  creating  a  causal  link  between  his  work  and  his \nMorton’s neuroma. At best, he can rely on a June 2021 note that states “the pain in his foot, \nwhich he seems most concerned about, is not a classic dermatomal manifestation of L5 pain, \nthough it certainly can be.” [See Cl. Ex. No 1 at 61] His  foot  pain  was  addressed  again, \nhowever, in a December 2021 post-surgical follow-up note with Dr. Overly. “He is happy to \nreport that his radicular complaints have resolved, though he still does feel like he has a rock \n\nJ. Brown- H006469  \n13 \n \n[under his foot] an issue which I told him initially was likely a Morton’s neuroma.” [See Cl. \nEx. No 1 at 84] (emphasis added).  The note continues, “[h]e has had complete resolution of \nhis radicular issues. He is still having the pain in the right foot that is likely a Morton’s \nneuroma. I am referring him to see my partner Dr. Matthews for this.” Id. \nThe claimant then saw Dr. Matthews in January of 2022, who noted, “[h]is radicular \ncomplaints have resolved but he still has lingering forefoot pain.” [See Cl. Ex. No 1 at 87] \nConfirming Dr. Overly’s earlier thoughts, Dr. Matthews assessed “right foot 2\nnd\n and  3\nrd\n \nwebspace Morton’s neuromas,” and described it as a “chronic problem.” [See Cl. Ex. No 1 at \n90]  Again in February it was noted that “he has had complete resolution of his back pain \nand radicular issues. He is still having the pain/numbness in the right foot that is likely a \nMorton’s neuroma rather than a persistent radiculopathy presenting itself.”  [See Cl. Ex. No \n1 at 94] \nThe neuroma is clearly a separate, chronic condition, not related to his back injury, \nand  without  any  evidence  supporting  a causal  relationship  with  his  work  environment  or \nworkplace  activities.  And  as  noted  above,  the  claimant  admitted  on  examination  that  he \ncannot  point  to  any  medical  opinion  linking  the  neuroma  to  his  back  injury or  any  work-\nrelated  activity.  Having  failed  to  prove  by  a preponderance  of  the  evidence  that  his  foot \ncondition is a compensable injury, his claims for benefits related thereto must fail. \nD.    The  Claimant  is  Not  Entitled  to  Reimbursement  for  the  Devices  he  Purchased \nWithout a Physician’s Order. \n \n Arkansas  law  provides  that  an  “employer shall  promptly  provide  for  an  injured \nemployee  such  medical,  surgical,  hospital,  chiropractic,  optometric,  podiatric,  and  nursing \nservices  and  medicine,  crutches,  ambulatory  devices,  artificial  limbs,  eyeglasses,  contact \nlenses, hearing aids, and other apparatus as may be reasonably necessary in connection with \nthe injury received by the employee.” Ark. Code Ann. § 11-9-508(a)(1). The claimant urges \n\nJ. Brown- H006469  \n14 \n \nthat the bed, recliner, and Teeter device were reasonable and necessary purchases for which \nhe should be reimbursed. I disagree. \n Claimant admits that no contemporaneous documentation orders or prescribes any of \nthe purchases, which occurred in October (the bed) and December (the Teeter device) of 2020, \nlong before his back surgery, and then on the day he discharged after surgery in November \nof  2021 (the recliner). [See Cl. Ex. No 2 at 1-3.]  Instead,  he  represents  only  that  someone \nalong the course of his many doctor’s appointments told him he should buy these things. The \nclaimant’s testimony in this regard is not credible.\n4\n “Where there are contradictions in the \nevidence,  it  is  within  the  Commission’s  province  to  reconcile  conflicting  evidence  and \ndetermine true facts. [It] is not required to believe the testimony of the claimant or any other \nwitness... [m]oreover, a claimant’s testimony is deemed controverted as a matter of law.” \nDavis, 2018 Ark. App. 390, 398, 557 S.W.3d 894, 900 (cleaned up).  \n The only mention of the devices in the records relied upon by the claimant appears to \nbe from his final visit with Dr. Overly, which notes in the history section what the claimant \nrelayed, “[h]e says that [the bed and recliner are] very helpful for him. He is having to have \nreimbursement for these 2 medical necessities.” [See Cl. Ex. No 1 at 136] That visit occurred \non 16 November 2022, several weeks after he filed his 7 October 2022 request for a hearing \non this matter was filed with the Commission. I do not find that any of the devices purchased \nwere  reasonable  or  necessary  and,  thus,  fall  outside  of the respondents’ responsibility for \npayment. \nE.  The Claimant is Entitled to Medical Mileage. \n \n \n4\n The respondents remind the Commission in their brief that the claimant admitted being untruthful, \nor  at  least  plainly  inconsistent,  in  his  unemployment  application.  There,  he  certified  that  he  was \nwilling and able to work while, at the same time, claiming here that he was entitlement to TTD benefits \nrelated to his foot problems. \n\nJ. Brown- H006469  \n15 \n \nThe claimant produced evidence for mileage he incurred while seeking treatment and \nfor which he claimed no payment was remitted. See Cl. Ex. No 2 at 27-32, TR at 33-34, Cl. \nBrief  at  10. Besides mention during a brief discussion on the record before the claimant’s \ntestimony  [TR  at  9-10.],  the  respondents  offered  no  evidence  or  argument  objecting  to  the \nappropriateness of payment on those mileage submissions. To the extent that any properly \nsubmitted mileage remains unpaid, the respondents are to remit payment accordingly. See \nAWCC Advisory 89-2, Revised May 2022. \n   F.  Attorney’s Fee \n Arkansas law provides for an attorney’s fee of twenty-five percent (25%) on indemnity \nbenefits payable to the claimant. Ark. Code Ann. § 11-9-715(a)(1)(B). While the respondents \naccepted the claimant’s back injury and paid for most benefits related thereto, the applicable \ncompensation rate on those TTD benefits was not resolved prior to the hearing, despite \nindications that it would be or that it might be addressed between the date of the hearing \nand the submission of the post-hearing briefs. The record, however, reflects no resolution on \nthe TTD underpayments or the unreceived payment. Accordingly, the claimant’s attorney is \nentitled to a fee associated with the amounts awarded on those unpaid benefits. \nV.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, the \nrespondents are to remit to the claimant and his attorney all amounts owed, consistent with \nthis Order. This claim is otherwise denied and dismissed. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":30426,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H006469 JAMES W. BROWN, EMPLOYEE CLAIMANT L & R DISTRIBUTORS, INC., EMPLOYER RESPONDENT LIBERTY MUTUAL FIRE INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED 25 AUGUST 2023 On hearing before Arkansas Workers’ Compensation Commission (AWCC) Administ...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:3","denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:04:18.035Z"},{"id":"full_commission-G906072-2023-08-24","awccNumber":"G906072","decisionDate":"2023-08-24","decisionYear":2023,"opinionType":"full_commission","claimantName":"Jacen Gann","employerName":"Ck Asphalt, LLC/bobby Kennedy Construction Co","title":"GANN VS. CK ASPHALT, LLC/BOBBY KENNEDY CONSTRUCTION CO. AWCC# G906072 AUGUST 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Gann_Jacen_G906072_20230824.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Gann_Jacen_G906072_20230824.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G906072 \n \nJACEN GANN, \nEMPLOYEE \n \nCLAIMANT \nCK ASPHALT, LLC,  \nEMPLOYER \n \n  RESPONDENT NO. 1 \nFARMINGTON CASUALTY CO./ \nTRAVELERS, INS. CO., CARRIER/TPA \n \nBOBBY KENNEDY CONSTRUCTION CO., \nEMPLOYER \n \nFARMINGTON CASUALTY CO./, \nTRAVELERS INS. CO., CARRIER/TPA \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2 \n \n \nRESPONDENT NO. 2 \n  \n      \nOPINION FILED AUGUST 24, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE AMY C. MARKHAM, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID M.  \nDONOVAN, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n ORDER \n The Arkansas Court of Appeals has reversed the Commission in the \nabove-styled matter and has remanded for an order consistent with the \nCourt’s opinion.  Jacen Gann v. CK Asphalt, 2023 Ark. App. 218.   \n The parties stipulated that the claimant “was injured while working on \nthe job” on September 12, 2019.  The parties stipulated that the Circuit \nCourt of Van Buren County, Arkansas, Civil Division – 1\nst\n transferred the \n\nGANN - G906072    2\n  \n \n \ncase to the Arkansas Workers’ Compensation Commission for the limited \npurpose of determining the employment relationship between the \ndefendants Michael Dorton and Bobby Kennedy Construction Company.   \n The parties subsequently agreed to litigate the following issue before \nthe Commission:  “1.  The sole issue before the Arkansas Workers’ \nCompensation Commission at this time is the determination of the \nemployment relationship between Jacen Gann, the plaintiff/claimant, and \nBobby Kennedy Construction, the defendant/respondent.”   \n After a hearing, an administrative law judge filed an opinion on \nSeptember 9, 2021.  The administrative law judge found, among other \nthings, that the claimant “was a dual or special employee of Bobby Kennedy \nConstruction Company, Inc. as well as CK Asphalt, LLC, at the time of the \nwork-related accident.  Consequently, Bobby Kennedy Construction, Inc. is \nentitled to the exclusive remedy provisions of the Arkansas Workers’ \nCompensation law, specifically Ark. Code Ann. §11-9-105.”  A majority of \nthe Full Commission affirmed and adopted the administrative law judge’s \ndecision in an opinion filed February 1, 2022.   \n The Arkansas Court of Appeals has held that the Commission erred \nin concluding that an employment relationship existed between the claimant \nand Bobby Kennedy Construction Company.  The Court of Appeals has \nexpressly held that because the record “does not support the finding that \n\nGANN - G906072    3\n  \n \n \nGann has made a contract for hire, express or implied, with BKC for \npurposes of the exclusive-remedy provision of Arkansas Code Annotated \nsection 11-9-105(Repl. 2012), we reverse and remand for an order \nconsistent with this opinion.”   \n Pursuant to the mandate from the Arkansas Court of Appeals, the \nFull Commission reverses the administrative law judge’s finding that the \ndefendant Bobby Kennedy Construction, Inc. is entitled to the exclusive \nremedy provisions of Ark. Code Ann. §11-9-105(Repl. 2012).  We find that \nthe claimant did not make a contract for hire, express or implied, with Bobby \nKennedy Construction for purposes of the exclusive remedy provision of \nArk. Code Ann. §11-9-105(Repl. 2012). \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":3814,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G906072 JACEN GANN, EMPLOYEE CLAIMANT CK ASPHALT, LLC, EMPLOYER RESPONDENT NO. 1 FARMINGTON CASUALTY CO./ TRAVELERS, INS. CO., CARRIER/TPA BOBBY KENNEDY CONSTRUCTION CO., EMPLOYER","outcome":"reversed","outcomeKeywords":["affirmed:1","reversed:3","remanded:2","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.177Z"},{"id":"alj-H207041-2023-08-23","awccNumber":"H207041","decisionDate":"2023-08-23","decisionYear":2023,"opinionType":"alj","claimantName":"Karen Wiggins","employerName":"Dardanelle Regional LLC","title":"WIGGINS VS. DARDANELLE REGIONAL LLC AWCC# H207041 AUGUST 23, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WIGGINS_KAREN_H208225_20230823.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WIGGINS_KAREN_H208225_20230823.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H208225 \n \n \nKAREN WIGGINS, Employee                                                                        CLAIMANT                          \n \nDARDANELLE REGIONAL LLC, Employer                                            RESPONDENT                          \n \nARK. HOSPITAL ASSOC./RISK MGT. RESOURCES,                           RESPONDENT                          \nCarrier/TPA \n \n \n OPINION/ORDER FILED AUGUST 23, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by JARROD PARRISH,  Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This  case  comes  on  for  review  following  a  hearing  on  respondent’s  Motion  to \nDismiss. \n On November 2, 2022, claimant filed Form AR-C requesting payment of additional \nmedical benefits for an injury which occurred on August 31, 2022.  No further action was \ntaken on that claim and on June 13, 2023, respondent filed a Motion to Dismiss for Failure \nto  Prosecute.    A  hearing  on  respondent’s  motion  was  scheduled  for  August  14,  2023.  \nNotice of the hearing was sent to claimant by certified mail and delivered on July 5, 2023.  \nClaimant did not appear at the hearing. \n After  my  review  of  the  respondent’s  motion,  the  claimant’s  lack  of  response \nthereto,  and all  other  matters  properly  before  the  Commission,  I  find  that  respondent’s \n\nWiggins – H208225 \n \n2 \n \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":1857,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208225 KAREN WIGGINS, Employee CLAIMANT DARDANELLE REGIONAL LLC, Employer RESPONDENT ARK. HOSPITAL ASSOC./RISK MGT. RESOURCES, RESPONDENT Carrier/TPA OPINION/ORDER FILED AUGUST 23, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smi...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:04:15.875Z"},{"id":"alj-H204677-2023-08-22","awccNumber":"H204677","decisionDate":"2023-08-22","decisionYear":2023,"opinionType":"alj","claimantName":"Natasha Onick","employerName":"Jacksonville N. Pulaski Sch. Dist","title":"ONICK VS. JACKSONVILLE N. PULASKI SCH. DIST. AWCC# H204677 AUGUST 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Onick_Natasha_H204677_20230822.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Onick_Natasha_H204677_20230822.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204677 \n \n \nNaTASHA ONICK, EMPLOYEE CLAIMANT \n \nJACKSONVILLE N. PULASKI SCH. DIST., \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. SCHOOL BDS. ASSN., \n THIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED AUGUST 22, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  May 24,  2023,  in  Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents   represented   by   Ms.   Melissa   Wood,   Attorney   at   Law,   Little   Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On May 24, 2023, the above-captioned claim was heard in Little Rock, Arkansas.  \nA prehearing conference took place on March 28, 2023.  The Prehearing Order entered \nthat   same day   pursuant   to   the   conference   was   admitted   without   objection   as \nCommission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n The  parties  discussed  the  stipulations  set  forth  in  Commission  Exhibit  1.    After \namendments at the hearing, they read as follows: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nONICK – H204677 \n \n2 \n2. The  employee/self-insured  employer/third-party  administrator  relationship \nexisted  on  or  about  September  24,  2021,  when  Claimant  sustained  a \ncompensable injury to her lower back. \n3. Respondents accepted Claimant’s lower back injury as compensable and \npaid for her treatment at Concentra Health Centers. \n4. Claimant’s average weekly wage of $279.71 entitles her to compensation \nrates of $187.00/$154.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.   After  the  withdrawal  of  the  compensability  issue  in  light  of  Stipulation  No.  2, supra, \nthe following were litigated: \n1. Whether  Claimant  is  entitled  to  additional  treatment  of  her  stipulated \ncompensable lower back injury. \n2. Whether Claimant is entitled to temporary total disability benefits. \n3. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, following  amendments at the hearing, \nare as follows: \n Claimant: \n1. Claimant  contends  that  she  sustained  admitted,  compensable  injuries  to \nher back on September 24, 2021. \n\nONICK – H204677 \n \n3 \n2. She  further  contends  that  she  is  entitled  to  payment  of  temporary total \ndisability benefits for the periods of September 25, 2021, to November 30, \n2021;  and  from  April  2,  2022,  through  a  date  yet  to  be  determined,  less \nand except a two-week period therein that she worked for Shutter Health. \n3. Claimant’s attorney respectfully requests that any attorney’s fees owed by \nClaimant  on  controverted  indemnity  benefits  paid  by  award  or  otherwise \nbe  deducted  from  her  benefits  and  paid  directly  to  counsel  by  separate \ncheck;  and  that  any  Commission  order  direct  Respondents  to  make \npayment of attorney’s fees in this manner. \nRespondents: \n1. Respondents  contend  that  any  reasonable,  necessary,  and  authorized \nmedical  treatment  has  been  paid  associated  with  this  claim.    Indemnity \nbenefits  were  paid  while  Claimant  was  in  an  off-work  status.    They \nrespectfully request a credit for any such benefits already paid. \n2. It  is  Respondents’  position  that  the  authorized  medical  care  does  not \nindicate entitlement to additional indemnity benefits.  Claimant has sought \nunauthorized medical care for which Respondents are not liable. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  the  witnesses  and  to  observe  their  demeanor,  I  hereby  make  the \n\nONICK – H204677 \n \n4 \nfollowing  findings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’ Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant has proven  by a preponderance of the evidence  her entitlement \nto additional treatment of her stipulated compensable lower back injury  in \nthe form of her visit to MedExpress Clinic on September 24, 2021. \n4. Claimant   has   not   proven  by   a  preponderance   of   the   evidence   her \nentitlement  to  any  other  treatment  of  her  stipulated  compensable  lower \nback  injury  other  than  that  set  out  in  Stipulation  No.  3  and  Finding of \nFact/Conclusion of Law No. 3, supra. \n5. Claimant   has   not   proven  by   a  preponderance   of   the   evidence   her \nentitlement to temporary total disability benefits for any period. \n6. Claimant  has not  proven  by  a  preponderance  of  the  evidence  that  her \nattorney is entitled to a controverted fee under Ark. Code Ann. § 11-9-715 \n(Repl. 2012) because no indemnity benefits have been awarded herein. \nCASE IN CHIEF \nSummary of Evidence \n The witnesses were Claimant and Erica Logan. \n Along  with  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case  were  Claimant’s  Exhibit  1,  a  compilation  of  her  medical  records, \n\nONICK – H204677 \n \n5 \nconsisting of one index page and 65 numbered pages thereafter; Respondents’ Exhibit \n1, another compilation of Claimant’s medical records, consisting of two index pages and \n86  numbered  pages  thereafter;  and  Respondents’  Exhibit  2,  non-medical  records, \nconsisting of one index page and 15 numbered pages thereafter. \nAdjudication \nA. Additional Treatment \n As the parties stipulated supra, the only treatment that Claimant has undergone \non   her   lower   back—which,   again,   the   parties   have   agreed   she sustained   a \ncompensable  injury  thereto—was  her  visit  to  Concentra  Health  Centers.    The  medical \nrecords in evidence, however, show that since she suffered this injury on September 24, \n2021,   she   has   undergone   extensive   additional   treatment.      Respondents   deny \nresponsibility  for  all  of  this.    They  have  argued  not  only  that  this  treatment  was  not \nreasonable and necessary, but that it was unauthorized as well. \n Arkansas  Code  Annotated  Section 11-9-508(a)  (Repl.  2012)  states  that  an \nemployer  shall  provide  for  an  injured  employee  such medical  treatment  as  may  be \nnecessary  in  connection  with  the  injury  received  by  the  employee.   Wal-Mart  Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    The \n\nONICK – H204677 \n \n6 \nstandard “preponderance of the evidence” means the evidence having greater weight or \nconvincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet \nCove   Barium   Corp.,   212   Ark.   491,   206   S.W.2d   442   (1947).    What   constitutes \nreasonable and necessary medical treatment is a question of fact for the  Commission.  \nWhite  Consolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); \nWackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  In order to prove \nhis entitlement to the requested  treatment, Claimant must also prove that it is causally \nrelated to her compensable injury of September 24, 2021.  See Pulaski Cty. Spec. Sch. \nDist. v. Tenner, 2013 Ark. App. 569, 2013 Ark. App. LEXIS 601. \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled to \nadditional  treatment,  even  after  the  healing  period  has  ended,  if  said  treatment  is \ngeared toward management of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. \nApp.  230,  184  S.W.3d  31 (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App. 200, \n649 S.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing \nthe  nature  and  extent  of  the  compensable  injury;  reducing  or  alleviating  symptoms \nresulting  from  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or \npreventing  further  deterioration  of  the  damage  produced  by  the  compensable  injury.  \nJordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra.  A \nclaimant is not required to furnish objective medical evidence of her continued need for \nmedical  treatment.   Castleberry  v.  Elite  Lamp  Co.,  69  Ark.  App.  359,  13  S.W.3d  211 \n(2000). \n\nONICK – H204677 \n \n7 \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Claimant is a high school graduate.  During the time period relevant to this cause \nof action, she was employed by Respondent Jacksonville North Pulaski School District.  \nShe described her position there as follows:  “It was just considered a bus aide, where I \njust supervised special-needs kids on the bus, just keeping them in their seats and quiet \nso  the  bus  driver  could  do  her  job,  drive.”  It  was  her  opinion  that  that  the  job  had \nphysical requirements because it entailed the aide intervening if a fight broke out on the \nbus  or  if  a  student  there  otherwise  became  disruptive.  In  addition,  she  assisted  a \nwheelchair-bound individual on and off the bus.  Claimant participated in three morning \nand  three  afternoon  bus  runs—one  each  for  elementary,  middle  school,  and  high \nschool. \n In  relating  how  she  injured  her  lower  back  on  September  24,  2021,  Claimant \ntestified: \nWell,  my  driver,  Ms.  Norman,  it  was  about  6:00,  6:15ish  to  6:30,  roughly \naround that time.  We was on our route.  We left the bus pound, we were \non  our  route,  and  right  before  we  got  to  our  first  stop  to  pick  up  our  first \n\nONICK – H204677 \n \n8 \nstudent  it  was  dark,  and  she  tried  the  curve,  made  a  right-hand  on  the \ncurve and hit the ditch . . . [w]e went in the ditch.  She hit it, I flew from the \nright  side,  because  I always  sit  in  the  back  .  .  .  [a]nd  that,  like  I  say,  the \nnext thing you know, I was—hit my head on the window and got throwed \nall the way over to the right-hand side—well, the left-hand side of the bus. \n \nAfter this  happened,  Claimant  and  the  bus  driver  were  able  to  complete  the route.\n Initially,  Claimant  was  seen  at  MedExpress.  When  asked  why  she  went  there, \nshe stated that the secretary at the school district’s bus barn, Nicole Hyman, instructed \nher to do so.  Hyman worked under Coach Barry Hickingbotham, who at that time was \nover the barn and bus operations for the  school district.  Claimant testified that Hyman \ngave her a form that had MedExpress on it, and that was why she went there.  The form \nis not in evidence, however. \n Thereafter, she went to Concentra.  This, too, was at the behest of Respondents.  \nClaimant explained that while she was off work after the MedExpress visit, she was not \nbeing paid temporary total disability benefits.  She first contacted Tammy Knowlton, who \nwas  the  human  resources  person  for  the  district  then;  and  from  there,  she  consulted \nwith Melody Tipton, the adjustor on the claim. \n Asked  how  she  was  feeling  during  the  period  after  the  October  4,  2021, \nConcentra appointment, Claimant replied:  “Oh, oh, I was, I was bad.  I couldn’t move.  I \nwas still, I had numbness, yes . . . [d]own my right side . . . [into] my legs, because due \nto the pain I had in the back.” \n Later,  Claimant  went  to  her  primary  care  physician,  Dr.  Vivian  Suarez,  at  the \nUniversity of Arkansas for Medical  Sciences.  She  admitted that she  also  sees Suarez \n\nONICK – H204677 \n \n9 \nfor  pre-existing  issues  that  include  diabetes  and  hypertension.    Claimant  testified  that \nshe went to her doctor “just trying to see what was going on” with her back. \n Claimant   has   also   been   undergoing   pain   management  at   Pain   Treatment \nCenters  of  America.  She  acknowledged  that,  as  reflected  in  the  records  in  evidence, \nshe had treated there for approximately one year prior to September 24, 2021.  But she \nexplained  that  those  visits  were  primarily  for  her  neck,  and  that  her  back  was  not a \nmajor  issue  until  the  bus  accident.    This  is,  however,  at  odds  with  her  deposition \ntestimony that she had no back treatment before the work-related incident in question. \n It   was   her   testimony   on   direct   examination   that   her   prescriptions   for \nHydrocodone,  Meloxicam,  Tizanidine,  and  Gabapentin  are  related  to  her  stipulated \nlower  back  injury.    But  this  conflicts  somewhat  with  her  deposition  testimony  that  she \nwas taking Hydrocodone and Gabapentin for her neck problem before the bus accident.  \nClaimant has also undergone injections for her back, along with an MRI. \n The following exchange occurred: \nQ. Did  you  talk  with  Ms.  Tipton  or  anyone  else  associated  with  the \nschool district about what you were supposed to do with respect to \nseeing  a  doctor?    And  I  know  that  you  told  us  about  beforehand, \nbut I’m talking about after you had gone to Concentra, did you talk \nwith  someone  about  what  you  were  supposed  to  do  in  the  way  of \ngetting medical treatment? \n \nA. Well, I reached out to [Knowlton] . . . [w]ell, reached out to her, but I \ngot  no  response,  no,  no—they  wasn’t—she  wasn’t  answering  the \nphone call.  I left messages, got emails, tried to get hold [sic] to her, \nand  in  the  process,  like  I  said  .  .  .  Ms.  Melody,  pretty  much  after  I \nhad  got  released  from  Concentra,  I  didn’t  hear  back  from  her.    I \ndidn’t  hear,  you  know,  she  didn’t  return  phone  calls  or  nothing  to \nthat nature. \n \n\nONICK – H204677 \n \n10 \nQ. Did you want to talk with her about what you were supposed to do \nin the way of getting medical treatment? \n \nA. Correct. \n \nQ. Okay. \n \nA. I  mean,  because  like  I  said,  once  she  sent  me  to  Concentra,  they \nhad—I  went  there  twice  whatever,  and then they  released me,  but \nyeah,  I  didn’t  see—I  didn’t  hear  anything  back  from  anybody  .  .  . \n[f]rom Jacksonville, nor Pulaski. \n \nQ. But were you trying to communicate? \n \nA. I was trying to communicate with them to see what I needed to do, \nand so in the process of that, that’s why I just continued to go to my \nPC[P] and Pain Centers. \n \nClaimant acknowledged that the emails she purportedly sent  that are referenced in the \nabove passage were not offered into evidence. \n Respondents  have  argued  that  any  treatment  Claimant  has  undergone  with \nregard  to  her  back  after  the  Concentra appointment  was unauthorized.    In Tempworks \nMgmt.  Servs.  v.  Jaynes,  2023  Ark.  App.  147,  662  S.W.3d  280,  the  Arkansas  Court  of \nAppeals wrote: \nBriefly,   Ark.   Code   Ann.   § 11-9-514(c)(1)   requires   an   employer   or \ninsurance   carrier   to   deliver   a   Commission-approved   notice   to   the \nemployee “which   explains   the   employee’s   rights   and   responsibilities \nconcerning   change   of   physician.”  Unauthorized   medical   expenses \nincurred after the employee has received the notice are not the employer’s \nresponsibility.  Id. §   11-9-514(c)(3).  But if the employee is not furnished a \ncopy of the notice, the change-of-physician rules don’t apply. \n \nThe  change-of-physician  rules  do  not  apply  absent  proof  that  the  claimant  received  a \ncopy  of  the  rules  from  the  respondent  either  in  person  or  by  certified  registered mail.  \n\nONICK – H204677 \n \n11 \nArk. Code Ann. § 11-9-514(c)(1)-(2) (Repl. 2012).  See also Jaynes, supra; Stephenson \nv. Tyson Foods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000). \n A  preponderance  of  the  evidence  establishes  that  Claimant  received  a  copy  of \nthese rules.  She admitted at the hearing that she was given the two-sided Form AR-N, \na copy of which is in evidence.  The following exchange on cross-examination confirms \nthis: \nQ. Ms.   Onick,   I’m   going   to   show   you   what’s   been   marked   as \nRespondents’ Exhibit 2. \n \nA. Okay. \n \nQ. And we’re going to look at page 4. \n \nA. Uh-huh. \n \nQ. Is  that  the  document  that  you  filled  out  when  you  got  back  to  the \nbus pound? \n \nA. Yes.  Yeah, it looks like it.  Yes, uh-huh. \n \nQ. Okay.  So this is all your writing on the form? \n \nA. That’s mine, except this right here (indicating on form). \n \nQ. Okay.  Someone else wrote the supervisor’s name? \n \nA. In Jacksonville, and this.  That was Ms. Nicole. \n \nQ. So that would be the cursive writing? \n \nA. Yes, ma’am, uh-huh, that would be Ms. Nicole. \n \nQ. All right.  But in the middle section here it says, “What part of your \nbody  was  injured?”  It  says, “Lower  back,  neck,  and  left  side,”  is \nthat correct? \n \nA. Correct, uh-huh. \n\nONICK – H204677 \n \n12 \n \nQ. And it also shows that you got a copy of the front and the back side \nof that form, is that correct? \n \nA. Yes. \n \nQ. This is your signature and phone number? \n \nA. Yeah, that’s me, uh-huh, yes. \n \nQ. And you did, in fact, receive a copy, correct? \n \nA. I’m not sure. \n \nQ. Did you? \n \nA. I’m not sure.  I don’t remember receiving it.  If I did, I— \n \nQ. You testified in your deposition that they did give you a copy? \n \nA. She gave me a copy, okay? \n \n While Logan testified that school district employees with minor injuries are sent to \nJacksonville  Medical  Care,  and  major  injuries  are  referred  either  to  either  an  Urgent \nCare or an emergency room, I note that her tenure as the human resources director for \nthe  district  began  after  the  events  in  question,  when  Knowlton  retired.    However,  her \ntestimony establishes that  beginning in September 2021, she became familiar with the \npolicy  of  the  school  district  regarding  this  when  Knowlton  trained  her  in, inter  alia, \nworkers’ compensation so that she could function in this area when Knowlton was out  .  \nAs  confirmed  by  the excerpt  of  the  new  employee  orientation  manual  that  was  in \nevidence,  Claimant  was  to  be  seen  at  Jacksonville  Medical  Clinic  in  the  event  she \nneeded non-emergency treatment, or at the Baptist Medical Center emergency room at \n\nONICK – H204677 \n \n13 \nSpringhill  if  emergency  treatment  was  required.    MedExpress  was  not  on  the  list  of \napproved treatment destinations, per Logan. \n The record of Claimant’s September 24, 2021, visit to MedExpress contains the \nfollowing notation: \nARKANSAS SCHOOL BOARD ASSOCIATION \nP.O. BOX 165460 \nLITTLE ROCK, AR  72216-5460 \nPolicy Holder:  OC-JACKSONVILLE NORTH P \n \nThis, coupled with Claimant’s credible testimony on this point, leads me to find that the \npreponderance  of  the  evidence  establishes  that  Hyman—the  school  district  employee \nwho  furnished  her  the  workers’  compensation  paperwork  in  the  aftermath  of  the  bus \naccident, also gave her paperwork that at least tacitly instructed Claimant to go there to \nbe  seen  in  connection  with  her  stipulated  compensable  back  injury.    Regardless  of \nwhether  MedExpress was  on  the  list  given  in  orientation,  or  whether  Hyman  consulted \nwith Knowlton or others before giving Claimant this instruction, Claimant was entitled to \nrely  on  it.   See  Foote’s  Dixie  Dandy,  Inc.,  v.  McHenry,  270  Ark.  816,  607  S.W.2d  323 \n(1980).  Thus, Claimant has proven that this treatment was authorized. \n The  treatment  that  Claimant  underwent  after  the  October  4,  2021,  visit  to \nConcentra, however, is a different matter.  The evidence shows that no one purporting \nto  be  acting  on  behalf  of  Respondents  authorized  Claimant  to  treat  with  Dr.  Suarez  or \nPain Treatment Centers of America.  Claimant has sought to justify this by saying that \nshe  first  attempted  to  seek  approval  from  Knowlton  and  Tipton  before  going  to  these \nplaces, but could not get a response from either.  Nothing before me corroborates this.  \n\nONICK – H204677 \n \n14 \nMoreover,  Claimant’s  medical  records  show  that in  her  first  three  visits  to  Pain \nTreatment  Centers  of America  after  the  bus accident—on November  8,  2021,  January \n13,  2022,  and  February  17,  2022—she  did  not  even  mention  the  accident.    For \ninstance,  she  presented  on  November  8,  2021,  with “neck  and  low  back  pain”  (which \nwas  cited  in  pre-accident  treatment  records  there)  that “has  not  changed  significantly \nsince [the] last visit . . . .”  This is repeated in the January 13, 2022, report.  It stands to \nreason  that  if  Claimant  were  seeking  authorization  from  Respondents  to  go  to  Pain \nTreatment  Centers  of  America  for  her  back  injury,  the  subject  of  the  accident  would \nhave  appeared  in  those  records  prior  to  when  it  actually  does—on March  28,  2022, \nwhich  is  approximately  six  months  after  the  bus  went  into  the  ditch.  In  that  instance, \nshe reported that she “had [a] lumbar injury prior to [the] last  visit,” which would date it \nbefore the February 17, 2022, appointment. \n A similar situation exists with regard to Dr. Suarez.  Claimant did not see her until \nMay 9, 2022, per the records in evidence.  Even then, that particular record is silent to \nan event at work. \n If  a  preponderance  of  the  evidence  establishes  that  Claimant’s  authorized \ntreating  physicians  refuse  to  see her again, and  Respondents  refuse  to  provide a  new \nphysician, then the change-of-physician rules do not apply after the claimant has been \ndenied  additional  authorized  medical  treatment.   See  Sanyo  Mfg.  Corp.  v.  Farrell,  16 \nArk. App. 59, 696 S.W.2d 779 (1985).  The October 7, 2021, treatment record by Clint \nBearden,  P.A.,  of  Concentra,  states  that  Claimant  could  come  back “as  needed.”  \nRegardless,  the  evidence  before  me  simply  does  not  preponderate  that  Respondents \n\nONICK – H204677 \n \n15 \nrefused  to  provide  Claimant  a  new  physician  after  her  discharge  from  Concentra on \nOctober 7, 2021.  Therefore, she has not proven her entitlement to the treatment by Dr. \nSuarez and Pain Treatment Centers of America. \nB. Temporary Total Disability \n In  this  proceeding,  Claimant  has  also  claimed  entitlement  to  temporary  total \ndisability benefits for the following dates:  September 25, 2021, to November 30, 2021; \nand from  April  2,  2022,  through  a  date  yet  to  be  determined,  less  and except  a  two-\nweek  period  therein  that  she  worked  for  Shutter  Health.    Respondents  at  the hearing \nacknowledged  that  they  did  pay  some  benefits  of  this  type  under  the  claim—but were \nnot prepared to offer a stipulation to specify the exact\n1\n period.  But they maintained that \nshe was not entitled to any additional temporary total disability benefits. \n Claimant’s stipulated  compensable  lower  back  injury  is  unscheduled.   See Ark. \nCode  Ann.  §  11-9-521  (Repl. 2012).    An  employee  who  suffers  a  compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \nwithin  the  healing  period  in  which  she  has  suffered  a  total  incapacity  to  earn  wages.  \nArk.  State  Hwy.  &  Transp.  Dept.  v.  Breshears,  272  Ark.  244,  613  S.W.2d  392  (1981).  \nThe  healing  period  ends  when  the  underlying  condition  causing  the  disability  has \nbecome  stable  and  nothing  further  in  the  way  of  treatment  will  improve  that condition.  \nMad Butcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant \nmust demonstrate that the disability lasted more than seven days.  Id. § 11-9-501(a)(1).  \n \n \n1\nBecause  nothing  before  me  reflects  what  period,  if  any,  Claimant  was  paid \ntemporary total disability benefits, I am left with no choice but to address the issue as if \nnone had been paid. \n\nONICK – H204677 \n \n16 \nClaimant   must   prove   her   entitlement   to   temporary   total   disability   benefits   by   a \npreponderance of the evidence.  Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012). \n Claimant’s medical history includes two strokes—with the second one ending her \nemployment as a school bus driver.  The following exchange took place: \nQ. And  according  to  your  deposition  testimony,  the  stroke  affected \nyour  right  side  causing  some  weakness,  and  you  have  problems \nsitting and standing too long because of that stroke, is that right? \n \nA. Well,  but  I  don’t—I  can’t  stand  and  sit  long,  yeah.    That[‘s]  just \n[be]cause of my back, my back, from back pain. \n \nQ. You didn’t testify that you have weakness because of the stroke? \n \nA. Yeah, I did, yes. \n \n According  to  Claimant,  she  began  having  difficulty  performing  her  job  after \nsustaining the back injury.  Her testimony was that she was no longer able to handle the \nstudents  on  the  bus:   “I’d  bring  a  pillow  just  to  try  to  get  on  with  it.”  Although  she \nattempted  to  come  back  to  work,  this  effort  was  not  successful:  “It  didn’t  do  good.   I \nthink at that point I just felt like, like I said I couldn’t perform the job, best of my ability, \nyou know, due to the accident.” \n Claimant quit her bus aide position on October 15, 2021, per the resignation form \nthat  is  in  evidence.    The  form  reflects  that  the  effective  date  of  the  resignation  was \nOctober 10, 2021, and that the last day she worked was October 7, 2021.  On the form, \nClaimant merely wrote “personal reasons” as the basis for her resignation.  In an email \nto her supervisor, Coach Hickingbotham, on October 7, 2021, she shed no further light \non this.  Instead, the email from her simply reads: \n\nONICK – H204677 \n \n17 \nHello coach sadly [sic] to inform you that I will not be continuing work with \nyou  guy’s  [sic]  Thank  you  and  Ms.  Nicole  for  all  you  did  for  me.    Sorry  it \ndidn’t work out [sic] Oct 10, 2021 \n \nWhile  Claimant  testified  that  she  informed  Hickingbotham  in  the  email  that  the  back \ninjury was the reason for her quitting, the text quoted above does not bear this out. \n The following exchange took place on direct examination: \nQ. What were the personal reasons? \n \nA. Just me not being able to perform that job anymore. \n \nQ. Why did you think you were not able to perform the job? \n \nA. Just  trying,  just  let  alone  trying  to  get  at up and—up and  down  on \nthe bus, trying  to sit there, and you  know, you hitting potholes and \nthings like that. \n \n Eventually after leaving the school district, on December 1, 2021, Claimant went \nback  to  work  for  another  employer.    At  Home  Again,  she  worked  as  a  personal  care \nassistant,  looking  after  elderly  clients in  their  homes.    She  stayed  there  until  April  1, \n2022,  doing,  among  other  things,  cooking  and  providing  companionship.    Asked  why \nshe left that position, Claimant responded: \nWell,  I  had  to  stop  that  because  they  had  gave  me  a  client  that  I wasn’t \nable  to  take  care  of  because  she  was  strictly  bedridden  and  you  had  to \nuse a lift to lift her up and just, you know, clean her, wipe or whatever, so \nmy body and my back would not let me do that. \n \n Even  though  Claimant  told  Dr.  Suarez  on  May  4,  2022,  that  she  could not  find \nanother  job  because  of  her  Hydrocodone  use,  this  proved  not  to  be  the  case.    From \nAugust 22,  2022,  through  September 12,  2022,  Claimant  worked for  a  business  called \nShutter Health.  This entailed working from her home, answering calls from patients and \n\nONICK – H204677 \n \n18 \nscheduling  their  appointments.   Asked  why  she  quit,  Claimant  stated:   “I  couldn’t  sit \nthere for  eight hours, sit  in  a  seat,  so  I had to  let  it  go.”  She  has not applied  for  work \nanywhere since then. \n This and the personal care aide jobs have been the only two she has held since \nresigning  from  the  school  district.  Describing  how  she  is  doing  at  present,  Claimant \nstated: \nGood  day,  I  make  it  to  get  up,  actually  get  up  and  probably  walk,  you \nknow, to the restroom, and that’s pretty much it.  But my day, the majority \nof my days just consist of I be [sic] in the bed.  I’ll take my medication and \nI just—because, like I say, I’ve got either having back problems, you know, \nto where I can’t move.  Everything is hurting on me. \n \n The evidence shows that when Claimant was seen at MedExpress on September \n24, 2021, she was not given any restrictions.   When Bearden saw her at Concentra on \nOctober  4,  2021.    He  did  not  assign  her  any  restrictions,  but  wrote:   “PT  [physical \ntherapy]  is  medically  necessary  to  address  objective  impairment/functional  loss  and  to \nexpediate  return  to  full  activity.”    Bearden  recommended  six  therapy  sessions  spread \nover two weeks.  Just three days later, however, he examined her again and wrote: \nMusculoskeletal:    Normal  gait.    No  tenderness  or  swelling  of  extremities.  \nRange of motion is within normal limits.  Normal muscle strength and tone.  \nOverall  subjective  pain  complaints  exceed  objective  findings  from  Ms. \nOnick[‘s] exam.  Es[s]entially normal. \n \nHe  added  that  she  was “at  functional  goal,  not  at  end  of  healing,”  but  could “return  to \nwork  with  no  restrictions”  as  of  October  7,  2021.  Claimant  confirmed  in her  testimony \nthat  she  is  unaware  of  being  taken  off  work  by  any  medical  provider  since  then.  She \nhas previously applied for Social Security disability benefits—both times unsuccessfully. \n\nONICK – H204677 \n \n19 \n Based  on  the  above  evidence,  I  cannot  find  that  Claimant  has  proven  by a \npreponderance  of  the  evidence  that  she  suffered  a  total  incapacity  to  earn  wages  for \nany period in connection with her stipulated compensable lower back injury.  In addition, \nwith respect to her entitlement to temporary total disability benefits after her resignation, \nthe  effective  date  of  which  was  October  10,  2021,  the  Arkansas  Court  of  Appeals  in \nLybyer  v.  Springdale  Sch.  Dist.,  2019  Ark.  App.  77,  568  S.W.3d  805,  held  that “a \nvoluntary resignation is a refusal to return to work [per Ark. Code Ann. § 11-9-526 (Repl. \n2012)]\n2\n,  which does  not  entitle  [a  claimant]  to  TTD  benefits  under  the  Act.”  In  sum, \nClaimant has not proven her entitlement to temporary total disability benefits. \nC. Attorney’s Fee \n Claimant has asserted that she is entitled to a controverted attorney’s fee in this \nmatter.  However, because she has not shown  her entitlement to indemnity benefits in \nany amount in connection with this claim, a controverted fee cannot be awarded under \nArk. Code Ann. § 11-9-715 (Repl. 2012). \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid \nin a lump sum without discount, and this award shall earn interest at the legal rate until \n \n \n2\nThis provision reads: \n \nIf any injured employee refuses employment suitable to his or her capacity \noffered to or procured for him or her, he or she shall not be entitled to any \ncompensation during the continuance of the refusal, unless in the opinion \nof the Workers’ Compensation Commission, the refusal is justifiable. \n \n\nONICK – H204677 \n \n20 \npaid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First  State \nBank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":33249,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H204677 NaTASHA ONICK, EMPLOYEE CLAIMANT JACKSONVILLE N. PULASKI SCH. DIST., SELF-INSURED EMPLOYER RESPONDENT ARK. SCHOOL BDS. ASSN., THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 22, 2023 Hearing before Administrative Law Judge O. Milton Fine II ...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["back","neck","lumbar"],"fetchedAt":"2026-05-19T23:04:11.739Z"},{"id":"alj-H004171-2023-08-22","awccNumber":"H004171","decisionDate":"2023-08-22","decisionYear":2023,"opinionType":"alj","claimantName":"Joshua Shelton","employerName":"Nucor Yamato Steel Co","title":"SHELTON VS. NUCOR YAMATO STEEL CO. AWCC# H004171 AUGUST 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Shelton_Joshua_H004171_20230822.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Shelton_Joshua_H004171_20230822.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H004171 \n \nJOSHUA SHELTON, EMPLOYEE CLAIMANT \n \nNUCOR YAMATO STEEL CO., \nEMPLOYER RESPONDENT \n \nARCH INSURANCE COMPANY,  \nCARRIER                                                                                                  RESPONDENT \n \nARCH INSURANCE COMPANY,  \nTHIRD PARTY ADMINISTRATOR                                                           RESPONDENT \n \nOPINION FILED AUGUST 21, 2023 \n \nHearing before Administrative Law Judge Steven Porch on July 28, 2023, in Little Rock, \nArkansas. \n \nClaimant is represented by Mr. Andy Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents are represented  by  Mr. Michael  E.  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held on this claim on July 28, 2023.  Claimant was represented by \nMr.  Andy  Caldwell,  Attorney  at  Law  of Little  Rock,  Arkansas;  Respondents  were \nrepresented by Mr. Michael E. Ryburn, Attorney at Law of Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof this claim. \n \n2. An employer/employee relationship existed on June 25, 2020, when \nClaimant sustained an injury to his back. \n \n3. The Claimant’s average weekly wage on June 25, 2020, was sufficient to \nentitle  him to  compensation  rates  of  $711.00  and  $533.00  for  temporary \ntotal and permanent partial disability benefits, respectively; and, \n \n4.       The Respondents have controverted the additional benefits sought herein. \n\nSHELTON H004171 \n \n2 \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1. Whether the Claimant is entitled to additional reasonably necessary medical \ntreatment previously denied by Respondents. \n \n2. Whether Claimant sustained a compensable back injury on June 25, 2020, \nand is entitled to appropriate benefits associated therewith. \n \n3. Whether Claimant is entitled to temporary total disability benefits from June \n25, 2020, through a date yet to be determined.  \n \n4. Attorney’s fees with respect to controverted indemnity benefits.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s and Respondents’ contentions are set out in their responses to the \nPrehearing Questionnaire.  Said contentions are hereby incorporated by reference.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \nClaimant and Respondents’ post hearing briefs that are blue-backed and made a part of \nthis  record and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity to hear the testimony of the Claimant, including other witnesses, and observe \ntheir demeanor,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1.  The Arkansas Workers’ Compensation Commission  has  jurisdiction  over  this \nclaim. \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The  Claimant  is  entitled  to  additional  medical  treatment for his back  injury of \nJune 25, 2020. \n\nSHELTON H004171 \n \n3 \n \n4.   The  Claimant  is  entitled  to  additional  temporary  total  disability  benefits  from \nJune 25, 2020, through a date to be determined. \n5.   Claimant did sustain a compensable back injury on June 25, 2020. \n6.  Claimant is entitled to controverted attorney fees. \nCASE IN CHIEF \nSummary of Evidence \n The witnesses at the hearing were the Claimant, Winford Parker, Josh Raper, and \nGina Taylor. In addition to admitting the prehearing order into evidence, I also admitted \ninto evidence Claimant’s and Respondent’s exhibits that were properly admitted before \nthe Commission. Claimant suffered an alleged injury, during the course and scope of his \nemployment with Nucor Yamato Steel Company, as a Caster Inspector, when he tripped \nover  a  roll  line  injuring  his  back. Claimant previously sustained  a  preexisting  non-work \nrelated back injury and underwent back surgery December of 2018. Claimant was healed \nand symptom free by the time of Claimant’s work related back injury on June 25, 2020. \nDr. Riley Jones, of OrthoSouth, as it relates to the current claim, treated Claimant and \nordered him off work and prescribed him a Medrol dose pack. The Claimant next went to \nthe Nucor-Yamato Health Clinic on June 29, 2020, for physical therapy and TENS unit. \nThe Claimant reported to the physical therapist that he fell at work, and he had immediate \nback  pain  and  spasms.  Dr.  Jones  diagnosed  Claimant  with  a  lumbar  sprain  and \nprescribed Flexeril on July 10, 2020.  \nThe  Claimant was subsequently placed  on  restricted  duty  while  continuing  his \nphysical therapy. The Claimant returned to OrthoSouth on July 20, 2020, due to his back \npain and was treated by Dr. Christopher Ferguson. Dr. Ferguson took the Claimant back \n\nSHELTON H004171 \n \n4 \n \noff  work  and  changed  his  medication to  Toradol  and  Robaxin.  Dr.  Ferguson  also \nrecommended  additional  physical  therapy. On  July  31,  2020,  the  Claimant  returned  to \nsee Dr. Jones and reported a bad episode of muscle spasms. Claimant was kept off work \nand prescribed Robaxin specifically for muscle spasms. The Claimant saw Dr. Jones at \nOrthoSouth again on August 14, 2020, and he was kept on Robaxin for muscle spasms \nand was kept off work due to his injury.  \nThe  Claimant  next  saw  Dr.  Todd  Fountain  with  Semmes  Murphey  Clinic  on \nOctober 1, 2020. Dr. Fountain kept the Claimant off work and recommended a facet test \nblock followed by radiofrequency ablation. Dr. Fountain referred the Claimant to Dr. Jay \nMcDonald. The Claimant’s pain management doctor, Dr. Jay McDonald, has treated \nClaimant with a medial branch block on February 1, 2021, a L5-S1 transforaminal epidural \nsteroid injection on March 1, 2021, a medial branch blocks for his L4-S1 on March 23, \n2021, and a  radiofrequency  ablation  procedure  on  May  11,  2021.  Dr.  McDonald \nrecommended work restrictions and released to full-time work on September 13, 2021. \nThe  Claimant  returned  to  the  clinic  on  September  30,  2021,  complaining  about \naggravating  his  back  injury  again  at  work. Dr.  McDonald  then  placed Claimant on \nsedentary duty. Claimant also received a lumbar epidural steroid injection on November \n11,  2021.  Dr.  McDonald  recommended  a  psychological  evaluation  and  spinal  cord \nstimulator  on  December  7,  2021.  This  recommendation  was  denied  by  Respondents \nincluding all other requests for additional treatment.  \nDr. McDonald, signed a document on June 27, 2023, stating conclusively that he \nwas treating claimant for muscle spasms and an aggravation of epidural fibrosis because \nof  a  work  injury. Dr. McDonald  requested  a  second  opinion  from  Dr. Moacir Schnapp, \n\nSHELTON H004171 \n \n5 \n \nPain Clinic Associates, concerning a spinal cord stimulator. Dr. Schnapp opined that the \nspinal cord stimulator is the next step for Claimant. Moreover, during Claimant’s efforts to \nget approved treatment, the Respondents did not offer Claimant any sedentary work.  \nAdjudication \nA. Whether Claimant has sustained compensable back injury on June 25, 2020, \nand is entitled to appropriate benefits associated therewith? \n In  this  action,  Claimant  has  alleged  that  he  suffered a compensable  injury, by \nspecific incident, to his back on June 25, 2020, as he was attempting to jump over a roll \nline and landing on his back. The alleged injury occurred during the course and scope of \nhis employment  with Respondents.  Respondents  argue  that Claimant’s injury was not \ncompensable due to the lack of medical objective findings. \n Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injury, defines “compensable injury”: \n(i) An accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \nmedical services or results in disability or death.  An injury is “accidental” \nonly if it is caused by a specific incident and is identifiable by time and place \nof occurrence[.] \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe element “arising out of . . . [the] employment” relates to the causal connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \n\nSHELTON H004171 \n \n6 \n \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when a causal connection between work conditions and the injury is apparent to the \nrational mind.”  Id. \n In Hudak-Lee  v.  Baxter  County  Reg.  Hosp.,  2011  Ark.  31,  378  S.W.3d  77,  the \nArkansas Supreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and \nin  the  course of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i)  (Supp. \n2009).  A compensable injury does not include an injury that is inflicted upon \nthe employee at a time when employment services are not being performed. \nArk.  Code  Ann.  §  11-9-102(4)(B)(iii) (Supp. 2009).  The phrase “in the \ncourse of employment” and the term “employment services” are not defined \nin  the Workers'  Compensation Act.  Texarkana Sch.  Dist.  v.  Conner,  373 \nArk. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court to define these \nterms in a manner that neither broadens nor narrows the scope of the Act.  \nId. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \nthe course and scope of employment.  Jivan v. Econ. Inn & Suites, 370 Ark. \n414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred within \nthe time and space boundaries of the employment, when the employee was \ncarrying out the employer's purpose or advancing the employer's interest, \ndirectly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 S.W.3d 57, we stated \nthat where it was clear that the injury occurred outside the time and space \nboundaries of employment, the critical inquiry is whether the interests of the \nemployer were being directly or indirectly advanced by the employee at the \ntime  of  the  injury.    Moreover,  the  issue  of  whether  an  employee  was \nperforming employment services within the course of employment depends \non the particular facts and circumstances of each case.  Id. \n \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \n\nSHELTON H004171 \n \n7 \n \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n The Respondents  contends  that  there  were  no  objective  findings  of  an  injury. \nHowever, in a recent case from the Arkansas Court of Appeals, Melius v. Chapel Ridge \nNursing Center, LLC, 2021 Ark. App. 61, 618 S.W.3d 410, the Court found appellant’s \ndiagnosis  of  muscle  strain  along  with  prescribed  treatment  of  medications,  physical \ntherapy, and pain management was sufficient to establish objective findings. Specifically, \nin Melius the Court of Appeals stated: \nAppellant was diagnosed with a strain of muscle, fascia, and tendon of right \nhip,  received  medication,  and  subsequently  was  referred  to  physical \ntherapy and a pain specialist for relief. What is disputed is whether appellant \npresented proof of objective medical evidence and whether the injury was \nwork  related.  Following  our  Supreme  Court  precedent,  we  agree  with \nappellant’s  argument  that  her  diagnosis  of  muscle  strain  along with \nprescribed treatment    of    medications,    physical    therapy,    and    pain \nmanagement  is  sufficient  to  establish objective  findings. See Fred’s, Inc., \n361  Ark.  258,  206  S.W.3d  238.  In Fred’s, Inc.,  no  physician,  or  physical \ntherapist reported witnessing or feeling Jefferson’s muscle spasms. Id. At \n262, 206 S.W.3d at 241. The doctor noted Jefferson’s work-related injury \n(falling off a ladder) in the medical record; diagnosed a muscle strain; and \nprescribed  Flexeril,  a muscle  relaxer,  pain  medication,  and  physical \ntherapy. Id. at 263, 206 S.W.3d at 242. Jefferson was also placed on limited \nwork duties and ordered not to engage in lifting more than ten pounds. Id. \nJefferson’s doctor did not indicate what the medications were for or state \nspecifically why he prescribed physical therapy. The Supreme Court held \nthat  it  was  reasonable  to  infer  from  the  chronology  of  events  that  the \nmedication  and  physical  therapy  were  prescribed  to  aid  Jefferson  and  to \ntreat  her  injury  and  that  medical  evidence  was  supported  by objective \nfindings. Id. \n \nThe instant case is similar to the Melius and Fred’s, Inc. cases. The Claimant was \ndiagnosed  with  strain  of  the  lumbar  region  for  which  medication  was  prescribed \nspecifically for muscle spasms. Moreover, as in the Fred’s case, the physicians  and \nphysical therapist in the instant claim noted Claimant’s work-related injury in the medical \n\nSHELTON H004171 \n \n8 \n \nrecords. The Claimant in the Fred’s Inc. case was also placed on limited work duties and \nordered not to lift more than ten pounds. The Claimant here was placed on restricted duty \nthen sedentary duty. Despite this, Respondents argue that Claimant’s back spasms must \neither  be  seen  on  an  x-ray  or  physically  felt  by  the  treating  medical  professional. \nRespondents, however,  have  not  acknowledged the  precedent  that  states there  is  no \nrequirement  under  Arkansas  law  that  a  doctor,  physical  therapist, or  other  medical \nprovider observe a patient having a muscle spasm before an employee’s injury can be \ncompensable. Melius,  2021  Ark.  App.  61,  618  S.W.3d  410  (citing Estridge  v.  Waste \nMgmt., 343 Ark. 276, 33 S.W.3d 167 (2000)).  \nTherefore, in keeping with the precedent from both the Arkansas Supreme Court \nand the Arkansas Court of Appeals, I find by the preponderance of evidence a diagnosis \nof  muscle  strain,  along  with  prescribed  medication for  pain  and  muscle  spasms, are \nsufficient   to   establish   objective   findings thereby  making  Claimant’s  back  injury \ncompensable. Considering this,  I  further  find  conclusively  that  Claimant  did  sustain  a \ncompensable injury to his back on June 25, 2020. I also find that a reasonable inference \nfrom  the  chronology  of  events in  this  matter,  i.e.  the  prescribed medications,  physical \ntherapy, and pain management were to aid Claimant and to treat his injury, including back \nspasms, and there was no evidence to the contrary. The Claimant testified to his back \nspasms, and I find by the preponderance of the evidence that his testimony was the most \ncredible. Finally, I do find by the preponderance of the evidence that Dr. Jay McDonald’s \nJune 27, 2023, signed letter stating that he has been treating Claimant for back spasms \nsince his work injury is credible. The next issue is whether Claimant is entitled to benefits.  \n\nSHELTON H004171 \n \n9 \n \nB. Whether Claimant is entitled to reasonably necessary medical care in relation \nto his compensable back injury of June 25, 2020? \n Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states  that  an \nemployer  shall  provide  for  an  injured  employee  such  medical  treatment  as  may  be \nnecessary in connection with the injury received by the employee.  Wal-Mart Stores, Inc. \nv. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only for \nsuch treatment and services as are deemed necessary for the treatment of the claimant’s \ninjuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  The claimant \nmust prove by a preponderance of the evidence that medical treatment is reasonable and \nnecessary for the treatment of a compensable injury.  Brown, supra; Geo Specialty Chem. \nv. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).  What constitutes reasonable and \nnecessary   medical   treatment   is   a  question   of  fact  for   the   Commission.   White \nConsolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As the Arkansas Court of Appeals has held, a claimant may be entitled to additional \ntreatment  even  after  the  healing  period  has  ended,  if  said  treatment  is  geared  toward \nmanagement of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 \n(1983).  Such services can include those for the purpose of diagnosing the nature and \nextent  of  the  compensable  injury;  reducing  or  alleviating  symptoms  resulting  from  the \ncompensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing  further \ndeterioration of the damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n\nSHELTON H004171 \n \n10 \n \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a witness’s \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness but may accept and translate into findings of fact only those portions of \nthe testimony that it deems worthy of belief.  Id. \nThere is no evidence that has been presented to show that any of the Claimant’s \ntreatments  were  unnecessary or  unreasonable,  including  the  recommendation  for  a \npsychological   evaluation   and   spinal   cord   stimulator.   Therefore,   I   find   by   the \npreponderance  of  the  evidence  that  all  of  Claimant’s  previously  denied  medical \nrecommendations were reasonable and necessary to treat his work related back injury, \nincluding the psychological evaluation and spinal cord stimulator. The Respondents shall \npay for these necessary and reasonable treatments.  \nC. Whether Claimant has sustained compensable back injury on June 25, 2020, \nand is entitled to appropriate benefits associated therewith? \nTemporary total disability for unscheduled injuries is that period within the healing \nperiod in which the Claimant suffers total incapacity to earn wages. Ark. State Highway \nand Transportation Dept. v. Brehears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing \nperiod ends when the underlying condition causing the disability has become stable and \nnothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. \nParker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982). Claimant  continues  to  go  through \n\nSHELTON H004171 \n \n11 \n \ntreatment for his back to improve his final condition. No evidence has been presented to \nshow that these efforts will not improve Claimant’s final condition. Claimant has missed \nlarge  amounts  of  work  since  his June 25,  2020, back injury. Thus, I  find  by  the \npreponderance of evidence that Claimant is entitled to temporary total disability from June \n25, 2020, to a date to be determined when he is stable or has reached maximum medical \nrecovery. This excludes any benefit amounts voluntarily paid by Respondents before the \nfiling date of this opinion. \nATTORNEY FEES \nOne of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, \n745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat a claim has been controverted, in whole or in part, the commission shall \ndirect that fees for legal services be paid to the attorney for the claimant as \nfollows:  One-half (½) by the employer or carrier in addition to compensation \nawarded;  and  one-half  (½)  by  the  injured  employee  or  dependents  of  a \ndeceased employee out of compensation payable to them. \n \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have \ncontroverted Claimant’s entitlement to additional indemnity benefits.  Thus, the evidence \npreponderates that his counsel, the Hon. Andy Caldwell, is entitled to the fee as set out \nabove for all indemnity benefits that should have been paid consistent with this opinion \nand in compliance with the Arkansas Workers’ Compensation Act. \nCONCLUSION \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid in \n\nSHELTON H004171 \n \n12 \n \na lump sum without discount, and this award shall earn interest at the legal rate until paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","textLength":22482,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H004171 JOSHUA SHELTON, EMPLOYEE CLAIMANT NUCOR YAMATO STEEL CO., EMPLOYER RESPONDENT ARCH INSURANCE COMPANY, CARRIER RESPONDENT ARCH INSURANCE COMPANY, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 21, 2023 Hearing before Administrative Law Judge...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["back","lumbar","sprain","strain","hip"],"fetchedAt":"2026-05-19T23:04:13.822Z"},{"id":"alj-H207262-2023-08-21","awccNumber":"H207262","decisionDate":"2023-08-21","decisionYear":2023,"opinionType":"alj","claimantName":"Marilyn Compton","employerName":"St. Vincent Medical Center North","title":"COMPTON VS. ST. VINCENT MEDICAL CENTER NORTH AWCC# H207262 NUNC PRO TUNC ORDER FILED AUGUST 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//COMPTON_MARILYN_H207262_20230821.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COMPTON_MARILYN_H207262_20230821.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n CLAIM No. H207262 \nMARILYN COMPTON, \nEMPLOYEE                                                                                                    CLAIMANT \n \nST. VINCENT MEDICAL CENTER NORTH, \nEMPLOYER                                                                                               RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA] \nSEDGWICK MG'T CLAIMS SERVICES, INC., \nINSURANCE CARRIER/TPA                                                                 RESPONDENT \n \nNUNC PRO TUNC ORDER FILED AUGUST 21, 2023 \n  I find a single clerical error exists in the Opinion and Order of Dismissal Without Prejudice \nFiled July 19, 2023, in the above-styled claim in that the July 19, 2023, order contains the incorrect \nclaim number. The correct claim number for this claim is H207262. \n Ark. Code Ann. S 11-9-713(d) (2020 Lexis Replacement) authorizes me to correct clerical \nerrors in such circumstances. This is a proper case for the exercise of that authority. Therefore, the \nOpinion and Order of Dismissal Without Prejudice Filed July 19, 2023, hereby is modified and \namended only to correct the aforementioned inadvertent clerical error in the style of the case on \nPage 1, and the header on Pages 2 and 3. In all other respects — including but not limited to the \n\"FINDINGS OF FACT AND CONCLUSIONS OF LAW\" section - the Opinion and Order \nFiled July 19, 2023, shall remain the same and shall not otherwise be altered, amended, or affected \nin any way. \n  IT IS SO ORDERED. \n \n                                                                   _________________________________ \n                                                                         Mike Pickens \n                                                                         Administrative Law Judge","textLength":1835,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM No. H207262 MARILYN COMPTON, EMPLOYEE CLAIMANT ST. VINCENT MEDICAL CENTER NORTH, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA] SEDGWICK MG'T CLAIMS SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT NUNC PRO TUNC ORDER FILED AUGUST 21, 2023 I find a si...","outcome":"modified","outcomeKeywords":["modified:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:04:07.592Z"},{"id":"alj-H202787-2023-08-21","awccNumber":"H202787","decisionDate":"2023-08-21","decisionYear":2023,"opinionType":"alj","claimantName":"Michael Stroud","employerName":"Little Rock Water Reclamation Authority","title":"STROUD VS. LITTLE ROCK WATER RECLAMATION AUTHORITY AWCC# H202787 AUGUST 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/STROUD_MICHAEL_H202787_20230821.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STROUD_MICHAEL_H202787_20230821.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H202787 \n \nMICHAEL STROUD,   \nEMPLOYEE                                                    CLAIMANT \n \nLITTLE ROCK WATER RECLAMATION AUTHORITY,   \nEMPLOYER                                                      RESPONDENT \n \nLITTLE ROCK WATER RECLAMATION AUTHORITY,                                 \nCENTRAL ADJUSTMENT CO. \nINSURANCE CARRIER/TPA                                          RESPONDENT \n \n \nOPINION AND ORDER FILED AUGUST 21, 2023 \n \nHearing  conducted  on May  2,  2023,  before  the Arkansas Workers’ Compensation  Commission \n(the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, Pulaski County, \nArkansas.   \n \nThe claimant was represented by the Honorable Tanner Thomas, Rainwater, Holt & Sexton, Little \nRock, Pulaski County, Arkansas.   \n \nThe respondents were represented by the Honorable Karen H. McKinney, The Barber Law Firm, \nLittle Rock, Pulaski County, Arkansas. \n       \nINTRODUCTION \nIn the prehearing order filed March 17, 2022, the parties agreed to the following \nstipulations, which they affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  at  all  relevant  times \nincluding  October  4,  2021,  when  the  claimant  alleges  he  tripped  at  work  and \nsustained an injury to his lower back/lumbar spine. \n \n3. The  parties  shall  exchange  wage  records  and  confer  as  soon  as  possible  and  be \nprepared  to  stipulate  to  the  claimant’s  average  weekly  wage  (AWW)  and  the \ncorresponding indemnity benefit rates preferably before or at the hearing. \n \n4. The respondents have controverted this claim in its entirety. \n  \n\nMichael Stroud, AWCC No. H202787 \n \n2 \n \n5. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Commission Exhibit 1 at 1-2; Hearing Transcript at 5). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were:   \n1. Whether the claimant sustained a compensable injury within the meaning of the Arkansas \nWorkers’ Compensation Act (the Act) to his lower back/lumbar spine on October 4, \n2021. \n \n2. If the claimant’s alleged injury is deemed compensable, the extent to which he/she is \nentitled to medical and indemnity benefits.   \n \n3. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n(Commission Exhibit 1 at 2; T. 5). \nThe claimant contends that on October 4, 2021, he tripped and fell on concrete in the course \nand scope of his employment and injured his lower back/lumbar spine. The claimant underwent \nan MRI which revealed disc protrusions with extrusions at L3-4 and L4-5, and he has undergone \nconservative treatment to date. The claimant contends he sustained a compensable injury to his \nlower  back/lumbar  spine  within  the  course  and  scope  of  his  employment,  and  he  is  entitled  to \nmedical treatment, and TTD benefits, and his attorney is entitled to a controverted attorney’s fee. \nThe claimant  reserves  any  and all other issues  for future determination or  litigation. (Comms’n \nEx. 1 at 2-3; T. 5). \nThe respondents contend the claimant has received all benefits to which he is entitled, and \nhe cannot meet the Act’s burden of proof in demonstrating he sustained a lower back/lumbar spine \n\nMichael Stroud, AWCC No. H202787 \n \n3 \n \ninjury on October 4, 2021. The respondents accepted this as a medical only claim. They contend \nthe claimant initially reported his fall as a minor scrape of the elbow and did not request medical \ntreatment until November 2, 2021. The claimant did not report any lower back pain related to the \nsubject fall at work on October 4, 2021. When the claimant finally requested medical treatment \nfrom respondents, he was sent to Concentra on November 2, 2021, where he reported an onset of \nlower  back  pain  that  started  on  a  Saturday,  just  two  (2)  days  before  the  November  2,  2021, \nappointment with Concentra, and he had taken tramadol and hydrocodone pills for this pain. The \nclaimant did not report  any acute injury at  work  or otherwise that prompted this onset of lower \nback pain when he presented himself for medical treatment at Concentra on November 2, 2021. \nThe  claimant  was  diagnosed  with  chronic  lower  back  pain  and  advised  to  follow  up  with  his \ntreating  physician. The  claimant’s treating  physician  opined  he  reached  maximum  medical \nimprovement (MMI), and released him to return to work with no restrictions, and no/zero percent \n(0%)  permanent  anatomical  impairment,  as  a  result  of  the  October  4,  2021,  work  incident. \n(Comms’n Ex. 1 at 3; T. 5).   \nSTATEMENT OF THE CASE \n       The claimant, Mr. Michael Stroud (the claimant), is 62 years old. After serving twice in the \nmilitary  and  having  received  an  honorable  discharge  after  his  first  stint  of  service,  then  a \ndishonorable discharge after his second stint of service for being absent without leave (AWOL), \nthe  claimant  worked  as  a  drywaller,  but  he  testified  the  vast  majority  of  his  work  experience – \nsome  30  years –  has  been  in  the  wastewater  treatment  field.  He  began  working  for  Little  Rock \nWastewater in May of 2013. Little Rock Wastewater is now known as the Little Rock Wastewater \n\nMichael Stroud, AWCC No. H202787 \n \n4 \n \nReclamation Authority (LR Wastewater). (T. 11-14). \n       The claimant testified that in 2014 he was working the night shift in the wintertime and he \nslipped on some ice which had accumulated on the railing on which he was walking, causing him \nto fall and slide three (3) to four (4) feet down some stairs and land on a concrete sidewalk. He \nsaid he turned in an incident report following this slip-and-fall, and took some Tylenol. He testified \nthat  between  the  time  of  this  2014  incident  until  2021  he  had  treated  with  his  personal  care \nphysician (PCP) and she gave him a cortisone shot in, “the affected area” (apparently his lower \nback), and he treated some with his chiropractor, but that was all the treatment he had, “During \nthat time frame.” (T. 16; 15-16).   \n       The work incident that prompted the subject claim occurred on October 4, 2021, when the \nclaimant was working the night shift early in the morning, apparently was alone at the time, and \nwas walking when he tripped over a piece of one of the clamps used to hold down some tubing \nthat was “sticking up” through the concrete walkway. The claimant testified that when he tripped \nhe fell on his right side and hit his back and right arm, scraping his right arm. He said he reported \nthe incident to his supervisor when the supervisor arrived at work a little time later, and that he – \nthe claimant – completed an incident report. The claimant testified when he fell on his right side \nhe felt pain in the area of his lower back which went down into the area of his right buttock. (T. \n16-20; Claimant’s Exhibit 2). \n       The claimant testified he did not immediately go see a doctor after this October 4, 2021, \ntrip-and-fall, but agreed with his attorney he did have an MRI at the White River Health System \non  October  21,  2021.  (T.  20).  The  written  report/interpretation  of  this  MRI  appears  in  the \n\nMichael Stroud, AWCC No. H202787 \n \n5 \n \nclaimant’s medical  exhibit  and  is  self-explanatory. (Claimant’s Exhibit 1 at 1-2).  The  claimant \ntestified  he  never  took  off  work,  but  his  medical  exhibit  reveals  he  did  see  various  medical \nproviders between October 27, 2021 and November 4, 2021. (T. 21-29; CX1 at 3-37). A”Return \nto Work / School” slip dated 11/04/2021 from OrthoArkansas states the claimant may return to \nfull  duty  work  on  11/11/2021,  with  no  restrictions.  (CX1  at  86).  The  claimant  testified  the \ntreatment he has had to  date  has not helped his lower back pain, and it is his understanding the \nnext step in his treatment is surgery, but he does not want to undergo surgery. He explained that \nthe way he understood it, if he underwent surgery at this time he eventually would need to have \nsurgery again at some point in the future. (T. 26; 21-29). The claimant testified his work schedule \nis 12 hours a day for seven (7) days, then he is off work for seven (7) days. He testified he has not \nhad to miss any work, that his back pain limits his ability to engage in personal activities. (T. 28-\n29).      \nDISCUSSION \nThe  claimant  has  failed  to  meet  his  burden  of  proof  in  demonstrating  he  sustained  a \n“compensable injury” within the Act’s meaning to his lower back/lumbar spine as a result \nof the October 4, 2021, work incident. \n \nThe Burden of Proof \n \n     For   any   specific-incident   injury   to   be   compensable   the   claimant   must   prove   by   a \npreponderance of the evidence that his injury: (1) arose out of and in course of his employment; \n(2) caused internal or external harm to his body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific incident identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4) (2022 \n\nMichael Stroud, AWCC No. H202787 \n \n6 \n \nLexis  Replacement); Cossey  v.  Gary  A.  Thomas  Racing  Stable,  2009  Ark.  App.  666,  at  5,  344 \nS.W.3d  684,  687  (Ark.  App.  2009).  Of  course,  the  claimant  bears  the  burden  of  proving  the \ncompensable  injury  by  a  preponderance  of  the  credible  evidence. Ark.  Code  Ann.  §  11-9-\n102(4)(E)(i) (2022 Lexis Repl.); and Cossey, supra.   \n     “Objective findings” are those findings which cannot come under the voluntary control of the \npatient. Ark. Code Ann. § 11-9-102(16)(A) (2022 Lexis Repl.); Long v. Wal-Mart Stores, Inc., 98 \nArk. App. 70, at 80 250 S.W.3d 263, at 272 (Ark. App. 2007). Objective findings, “specifically \nexclude such subjective complaints or findings such pain, straight-leg-raising tests, and range-of-\nmotion tests.” Burks  v.  RIC,  Inc.,  2010  Ark.  App.  862  (Ark.  App.  2010).  Objective  medical \nevidence is not essential to establish a causal relationship between the work-related accident and \nthe alleged injury where objective medical evidence exists to prove the existence and extent of the \nunderlying  injury,  and  a  preponderance  of  other  nonmedical  evidence  establishes  a  causal \nrelationship  between  the  objective  injury  and  the  work-related  incident(s)  in  question. Flynn  v. \nSouthwest Catering Co., 2010 Ark. App. 766, 379 S.W.3d 670 (Ark. App. 2010). Moreover, the \nclaimant must prove a causal relationship exists between her employment and the alleged injury. \nWal-Mart Stores, Inc., v. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. App. 2002) \n(citing McMillan v. U.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (Ark. App. 1997)).   \n     Concerning the proof required to demonstrate the aggravation of a preexisting condition, our \nappellate courts have consistently held that since an aggravation is a new injury, a claimant must \nprove it by new objective evidence of a new injury different than the preexisting condition. Vaughn \nv. Midland School Dist., 2012 Ark. App. 344 (Ark. App. 2012) (citing Barber v. Pork Grp., Inc., \n\nMichael Stroud, AWCC No. H202787 \n \n7 \n \n2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. 130, 382 \nS.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 (Ark. App. \n2010)  (Emphases  added).  Where  the  only  objective  findings  present  are  consistent  with  prior \nobjective  findings or  consistent  with  a  long-term  degenerative  condition  rather  than  an  acute \ninjury, this does not satisfy the objective findings requirement for the compensable aggravation of \na preexisting condition injury. Vaughn, 2012 Ark. App. 344, at 6 (holding that Arkansas courts \nhave interpreted the Act to require “new objective medical findings to establish a new injury when \nthe  claimant seeks  benefits  for  the  aggravation  of  a  preexisting  condition”); Barber,  supra \n(affirming the Commission’s denial of an aggravation of a preexisting condition claim where the \nMRI  findings  revealed  a  degenerative  condition,  with  no  evidence  of,  and  which  could  not  be \nexplained  by,  an  acute  injury)  (Emphases  added.).  In Mooney,  2010  Ark.  App.  600  at  4-6,  378 \nS.W.3d at 165-66 (Ark. App. 2010), the court affirmed the Commission’s decision denying a back \ninjury claim where the objective evidence of an injury - including muscle spasms, positive EMG \ntest results, and spinal stenosis revealed on an MRI  - were  all present both before and after the \ndate of the alleged aggravation injury. (Emphasis added). \n      Both  attorneys  did  an  excellent  job  presenting  their  respective  client’s  positions  and \ninterests. However, based on the aforementioned law as applied to the facts of this case, and the \ntotality of the credible evidence of record – both in the form of the claimant’s own testimony and \nthe medical records – I am compelled to find the claimant has failed to meet his burden of proof \nin demonstrating he sustained a lower back/lumbar spine injury as a result of the March 4, 2021, \nwork incident. Indeed, the preponderance of both the claimant’s own testimony and the relevant \n\nMichael Stroud, AWCC No. H202787 \n \n8 \n \nmedical evidence conclusively demonstrate the claimant’s lower back pain/lumbar spine condition \nwas degenerative in nature, and was both preexisting and symptomatic long before the October 4, \n2021, work incident.   \n       As  the  record  readily  reveals,  the  respondents’  attorney’s  cross-examination  of  the \nclaimant proved to be quite effective and, especially when read in conjunction with the relevant \nmedical records, conclusively demonstrates the claimant’s lower back pain/lumbar spine condition \nwas  clearly  degenerative  in  nature  and  not  the  result  of  any  injury,  was  preexisting,  and  was \npatently symptomatic – and apparently fairly painful – long before the subject October 4, 2021, \nwork incident. The following evidence of record supports my opinion in this regard.    \n        First,  on  cross-examination  the  claimant  admitted  that  when  he  himself  completed,  in \nhis own handwriting, the initial incident report a couple of hours after the October 4, 2021, subject \ntrip-and-fall, he stated only that he, “scraped right arm at elbow landed on right side”; but he never \nmentioned having injured his lower back. (CX1 at 1; T. 29-32). Indeed, even a cursory review of \nthe report reveals that while he certainly had an opportunity to state he had injured his lower back \nin the fall since he himself was the one who completed the report, signed it, and dated it in his own \nhandwriting,  he  never  even  mentions  his  lower  back,  nor  having  injured  it  as  a  result  of  the \nincident.   \n       Second, concerning the 2014 slip-and-fall – which, of course, occurred some seven  (7) \nyears  before  the  subject  October  4,  2021,  incident,  and  for  which  the  claimant  never  filed  a \nworkers’ compensation claim – the claimant admitted no incident report existed for this incident, \nalthough he said he completed one. The claimant also admitted he had not received any medical \n\nMichael Stroud, AWCC No. H202787 \n \n9 \n \ntreatment following the 2014 incident, nor did he file a workers’ compensation claim alleging a \ncompensable work injury. (T. 32-33). \n       Third,  the  respondents’  medical  exhibit  contains  medical  records  from  April  27,  2020, \nthrough  September  14,  2021  (and  this  latter  date  was  some  three  (3)  weeks  before  the  subject \nOctober 4, 2021, incident) contains numerous medical records where the claimant has presented \nhimself  to  healthcare  providers  for  evaluation  and  treatment  of  leg,  knee,  and  right-sided  lower \nback pain radiating into the area of his right buttock. (Respondents’ Exhibit 1 at 1-29).  The \nclaimant admitted on cross-examination he had presented himself to his own PCP for evaluation \nand treatment of  right-sided lower back pain that the claimant described as seven (7) out of ten \n(10), and nine (9) out of ten (10) on a pain scale of one (1) to ten (10). The claimant admitted he \nhad received steroid injections in the area of his lumbar spine, and chiropractic adjustments by two \n(2) different chiropractors (apparently a mother and a daughter, both of whom were chiropractors) \nin the area of both his lumbar and cervical spine. (T. 34-37).   \n       Medical and chiropractic reports during the aforementioned time period from April 2020 \nthrough September 2021contain numerous references to lower back pain, neck pain, right-sided \nlower back pain radiating into the claimant’s right leg, and list an onset date of “02/14/2016” for \nthe “low back pain.” (RX1 at 1-29; 3). A clinic note dated May 28, 2020, states, “No injury”; notes \nthe location of the claimant’s pain to be his, “lower back; lower back and leg pain; chronic knee \npain bilateral; leg pain bilateral.” (RX1 at 4). Among the medications the claimant was prescribed \nand  taking  in  April  of  2020  were  meloxicam  (an  anti-inflammatory  often  prescribed  for \ndegenerative  and  arthritic  conditions),  and  tizanidine  (a  muscle  relaxant  used  to  treat  muscle \n\nMichael Stroud, AWCC No. H202787 \n \n10 \n \nspasms, and even muscle spasms related to multiple sclerosis). (RX1 at 2).   \n       Significantly, and perhaps most revealing, are the medical and chiropractic records from \nMarch 3, 2021, through September 14, 2021, which, again, conclusively demonstrate the claimant \nreceived steroid injections for what he described as significant lower back pain, which the claimant \nadmitted. For example, the March 3, 2021, chiropractic report of Tonya Holt states the onset of \nthe claimant’s “lumbar,  right  lumbar,  right  sacroiliac,  sacral,  right  pelvic,  right  buttock  right \nposterior leg and right posterior knee” discomfort and began “years ago after he fell and landed on \nhis rt side...then it came back about 3 weeks ago. (RX1 at 6; 6-29; T. 34-37). Indeed, and once \nagain, the respondents’ medical exhibit is replete with  such  references  to  both  the  location  and \nseverity of the claimant’s right-sided, radiating lower back pain and treatment which existed long \nbefore the subject October 4, 2021, work incident. The claimant himself admitted these facts when \nconfronted with them on cross-examination. (RX1 at 1-29; T. 30-47). Moreover, a medical record \nfrom the White River Health System dated October 27, 2021 – which was over three (3) weeks \nafter the date of the subject alleged lower back/lumbar spine injury – as being “10/02/2017”. Of \ncourse, this is almost four (4) years before the date of the subject October 4, 2021, alleged lower \nback/lumbar spine injury. (RX1 at 38; 36-42). \n       Fourth, and finally, there exists no physician’s opinion stated within a reasonable degree \nof medical certainty. In fact, the MRI results of October 21, 2021, reveal no evidence of an acute, \nspecific-incident injury, but reveal only degenerative changes in the claimant’s lumbar spine which \nare  consistent  with  his  longstanding  symptoms  of  lower  back  pain  which  radiated  into  the \nclaimant’s right buttock and right leg that existed well before the date of the subject October 4, \n\nMichael Stroud, AWCC No. H202787 \n \n11 \n \n2021,  work  incident.  In  addition,  on  these  facts  and  in  this  case,  the  narrative  report  of  Dr. \nTheodore Hronas, a radiologist certified by the American Board of Radiology, is instructive. (RX1 \nat 68-69). In his fully-informed, well-written narrative report, Dr. Hronas accurately summarizes \nthe claimant’s entire relevant medical history and opines within a reasonable degree of medical \ncertainty that the claimant’s October 21, 2021, MRI  reveals  merely  degenerative  changes  not \nunusual for a man of his age and that, “there are no objective findings of either a remote or recent \ninjury... .” (RX1 at 69). This is a health insurance claim, not a workers’ compensation claim, and \nthe claimant has submitted his related medical bills to his health insurance carrier which has paid \nfor his treatment.   \n          Therefore, for all the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The  stipulations  contained  in  the  prehearing  order  filed  March  27,  2022, \nwhich the parties affirmed on the record at the hearing, hereby are accepted \nas facts. \n \n2. The  claimant  has  failed  to  meet  his  burden  of  proof  in  demonstrating  he \nsustained a “compensable injury” within the Act’s definition to his lower \nback pain/lumbar spine on October 4, 2021.   \n \n3. The preponderance of the evidence – including the relevant medical records \nand his own admissions on cross-examination – conclusively demonstrate \nthe claimant’s lower back pain/lumbar  spine  condition is  degenerative  in \nnature,  was  longstanding,  and  admittedly  symptomatic well  prior  to  the \nsubject  work  incident  of  October  4,  2021.  In  summary,  there  exists  no \nobjective medical evidence of any specific-incident injury to the claimant’s \nlower  back/lumbar  spine  occurring  on  October  4,  2021,  as  the  claimant \ncontends.   \n \n \n4. The claimant’s attorney is not entitled to a fee on these facts.  \n\nMichael Stroud, AWCC No. H202787 \n \n12 \n \n       WHEREFORE,  for  all  the  aforementioned  reasons,  I  hereby  am  compelled  to  deny  and \ndismiss this claim. If the respondents have not already done so, they shall pay the court reporter’s \ninvoice within twenty (20) days of their receipt of this opinion and order.     \nIT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":22267,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202787 MICHAEL STROUD, EMPLOYEE CLAIMANT LITTLE ROCK WATER RECLAMATION AUTHORITY, EMPLOYER RESPONDENT LITTLE ROCK WATER RECLAMATION AUTHORITY, CENTRAL ADJUSTMENT CO. INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED AUGUST 21, 2023 Hearing conducted...","outcome":"affirmed","outcomeKeywords":["affirmed:1","dismissed:1","granted:1","denied:1"],"injuryKeywords":["back","lumbar","knee","cervical","neck"],"fetchedAt":"2026-05-19T23:04:09.662Z"},{"id":"alj-G905793-2023-08-18","awccNumber":"G905793","decisionDate":"2023-08-18","decisionYear":2023,"opinionType":"alj","claimantName":"Emery Humphries","employerName":"Fna Group, LLC","title":"HUMPHRIES VS. FNA GROUP, LLC AWCC# G905793 AUGUST 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HUMPHRIES_EMERY_G905793_20230818.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HUMPHRIES_EMERY_G905793_20230818.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G905793 \n \nEMERY HUMPHRIES, Employee CLAIMANT \n \nFNA GROUP, LLC, Employer RESPONDENT \n \nAMTRUST NORTH AMERICA, Carrier RESPONDENT \n \n \n OPINION FILED AUGUST 18, 2023 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by JASON M. HATFIELD, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents   represented   by   WILLIAM   C.   FRYE,   Attorney   at   Law,   North   Little   Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On  May  23,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.   A pre-hearing conference was conducted on November 14, 2022, and a Pre-hearing \nOrder  was  filed  on  November  15,  2022.  A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.  The  Arkansas  Workers'  Compensation Commission  has  jurisdiction  to  determine \nwhether Respondent No. 2, FNA Group, LLC, was a dual employer of Claimant. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  or  not  FNA  Group,  LLC  was  a  dual  employer  of  the  claimant  and  therefore \nprotected under Exclusive Remedy provisions of Arkansas Code Annotated §11-9-105. \n Claimant’s contentions are: \n\nHumphries – G905793 \n \n-2- \n“On    or    about    August    19,    2019,    Claimant    EMERY    R. \nHUMPHRIES,  was  an  employee  with  LABOR  SOLUTIONS. \nClaimant  was  hired  and  paid  by  LABOR  SOLUTIONS.  Claimant \nwas injured while working at the FNA GROUP, INC., facility. \n \nAn  express  contract  exists  between  LABOR  SOLUTIONS  and \nFNA GROUP INC., wherein Claimant is a third-party beneficiary. \nThe  contract  clearly  and  unambiguously  states Claimant  is  not  to \nbe  considered  an   employee  of   FNA   GROUP,  INC.,  for   any \npurpose  and  specifically  states that  LABOR  SOLUTIONS  is  an \nindependent contractor. \n \nFNA HOLDING CO alleges they are a dual employer of Claimant, \ndespite  clear  unambiguous  contract  language  FNA  Group,  INC., \ndrafted  which  states: No  Personnel  of  Labor  Solutions  shall  be \ndeemed  an  employee  of  Customer  for  any  purpose  related  to \nthe   Agreement,   including,   without   limitations,   under   any \ncompensation or benefit plan of the Customer. \n \nThe  three  essential  elements  of  dual  employment  relied  on  under \nthe Arkansas Workers’ Compensation rules are: \nWhen   a   general   employer   lends   an   employee   to   a   special \nemployer,  the  special  employer  becomes  liable  for  workmen’s \ncompensation only if: \n(a) The employee has made a contract for hire, express or implied, \nwith the special employer; \n(b) The work being done is essentially that of the special employer; \nand \n(c) The special  employer has the right to control  the details of the \nwork. \n \nIt  is  clear  that  the  express  contract  in  this  case  unambiguously \nstates  Claimant  is  never  to  be  considered  an  employee  of  FNA \nGROUP, INC., for any purpose. The inquiry stops there. The parol \nevidence   rule   prevents   introduction   of   additional   evidence   in \nattempt to modify or amend the contract. \n \nRespondent   FNA   GROUP,   INC.,   cannot   escape   the   express \ncontract   which   clearly   and   unambiguously   establishes   that \nClaimant   EMERY   R.   HUMPHRIES   is   not   an   employee   of \nRespondent  FNA  GROUP,  INC.,  but  is  instead  an  independent \ncontractor.” \n \n Respondents’ contentions are: \n\nHumphries – G905793 \n \n-3- \n“FNA   entered   into   a   contract   for   Respondent   No.   1,   Labor \nSolutions  of  Arkansas,  LLC,  to  provide  employees  to  work  in \nFNA’s  plant.  The  Claimant  came  to  work  for  FNA  under  said \ncontract. FNA was a special employer in this matter.  \n \nFirst,  there  is  an  implied  contract  of  hire  since  the  Claimant  was \nallowed  to  come  to  work  at  the  FNA  plant  under  this  contract. \nSecondly,  the  work  being  performed  was  essentially  that  of  the \nspecial  employer,  FNA.  Third,  FNA  had  the  right  to  control  the \ndetails  of  the  work.  Therefore,  FNA  is  a  special  employer  and  is \nafforded protection under the provisions of AR. Code Ann. §11-9-\n105.” \n \n The claimant in this matter is a 24-year-old male who suffered a compensable amputation \nof  the  lower  left  extremity  on  August  19,  2019,  while  operating  a  cardboard  crusher.  The \nclaimant  was  employed  by  Labor  Solutions,  a  temporary  employment  service,  at  that  time \nworking  inside  of  an  FNA  Group,  the  respondent,  production  facility.  The  question  before  the \nCommission is  to  determine  the  employment  status  of  the  claimant  as  it  relates  to  FNA  Group. \nOn September 13, 2022, Judge Xollie Duncan in the Circuit Court of Benton County, Arkansas, \nCivil  Division,  signed  an  order  found  at  Joint  Exhibit  1,  referring  this  matter  to  the  Arkansas \nWorkers’  Compensation  Commission  for  determination  of  the  claimant’s  employment  status \nwith FNA Group. \n The  sole  issue  before  the  Commission  is  whether  the  claimant  was  a  dual  employee  of \nLabor  Solutions  and  FNA  Group  on  August  19,  2019,  when  he  sustained  an  amputation  of  the \nleft  lower  extremity  between  the  knee  and  ankle.    The  claimant  contends  he  was  not  a  dual \nemployee  in  that  he  was  an  employee  of  Labor  Solutions,  but  not  an  employee  of  FNA  Group.  \nThe  respondent  contends  that  the  claimant  was  both  an  employee  of  Labor  Solutions  and  FNA \nGroup and thus a dual employee which would provide FNA Group Exclusive Remedy protection \nfrom tort liability under the Arkansas Workers’ Compensation Act. \n\nHumphries – G905793 \n \n-4- \n In Randolph v. Staffmark, 2015 Ark. App. 135, the Arkansas Court of Appeals considers \nthe issue of dual employment and uses the Supreme Court’s decision in Daniels v. Riley’s Health \nand  Fitness  Centers, 310 Ark. 756 (1992) to do so.  The Court of Appeals stated, “...where it \nheld  that  when  a  general  employer  lends  an  employee  to  the  special  employer,  the  special \nemployer becomes liable for workers’ compensation only if three facts are satisfied:  (1) the \nemployee  has  made  a  contract  for  hire,  express  or  implied,  with  the  special  employer;  (2)    the \nwork being done is essentially that of the special employer;  and (3)  the special employer has the \nright to control the details of the work.” \n The first of three facts that must be satisfied in Daniels, supra, is whether “the employee \nmade  a  contract  for  hire,  express  or  implied,  with  the  special  employer.”  Here,  the  claimant \nbeing the employee and FNA Group, the special employer. It is undisputed that the claimant was \nhired  by  Labor  Solutions  as  an  employee  in  July  of  2019  and  began  work  in  the  FNA  Group \nfacility  that  same  month.  Documentation  of  his  application  to  be  employed  by  Labor  Solutions \nand  work  in  an  FNA  Group  facility is  found  at  Claimant’s  Exhibit  2,  pages  8-20,  including  a \ndocument entitled “Mini Facts” found specifically at Claimant’s Exhibit 2, pages 16-20, which, \namong  other  requirements,  assigns  the  claimant  to  work  for  Labor  Solutions  at  an  FNA  Group \nfacility. There is, however, no express contract for hire between the claimant and FNA Group as \nthere  appears  to  be  no  dispute  as  to  the existence  of  an  express  contract.  Therefore,  in  order  to \nmeet the first “fact” that must be proven to establish dual employment of the claimant between \nLabor  Solutions  and  FNA  Group,  an  implied  contract  for  hire  must  exist  between  FNA  Group \nand the claimant. \n\nHumphries – G905793 \n \n-5- \n Both the claimant and respondent filed post hearing briefs in this matter. Both parties put \nforth  legal  precedent  and  argument  about  Arkansas  law  regarding  implied  contract.  The \nrespondent, in part, stated: \nThe  test  on  implied  contract  of  hire is “control of the employee.” \nIn  fact,  there  have  been  numerous  cases  on  implied  contracts  of \nhire  in  special  employer  cases.  In  the  case  of  Estate  of  Bogar  v. \nWelspun  Pipes,  Inc.,  2014  Ark.  App.  536,  444  S.W.3d  405, \nWelspun   was   determined   to   be   the   special   employer   by   the \nArkansas Workers’ Compensation Commission. In determining the \nimplied   contract,   the   court   said   you   look   at   the   totality   of \ncircumstances surrounding the relationship. They noted as follows: \n \nThe undisputed testimony in this case indicates that \nElite   Services   recruits   employees   for   Welspun. \nHowever,  once  the  employees  go  to  work  at  the \nWelspun  facility,  Welspun  dictates  the  hours  they \nwork,  sets  their  rate  of  pay,  can  discipline  the \nindividuals and can terminate the individuals. Once \nElite  Services  hires  and  supplies  an  employee  to \nWelspun,  Elite  Services’  primary  function  is  to \nprocess payroll.... This examiner can think of no \ngreater   indications   of   an   implied   employment \ncontract  than  the  ability  to  determine  a  worker’s \nweekly hours, his rate of pay, his discipline, and his \ntermination, combined  with  the  right  to  control  the \nwork being performed. \n \nEst.  of  Bogar  v.  Welspun  Pipes,  Inc.,  2014  Ark.  App.  536,  3,  444 \nS.W.3d 405, 407 (2014) (emphasis in original). \n \nThe  Court  went  on  to  say  that  it  is  important  to  look  at  the \nrelationship  between  general  and  special  employer.  Randolph  v. \nStaffmark, 2015 Ark. App. 135, 456 S.W.3d 389. \n \nThe claimant, in part, stated: \nThe only remaining argument for FNA is that there was an implied \ncontract  of  employment  between  FNA  and  Humphries.  Arkansas \nlaw on implied contracts teaches: \n \nThere  are  two  classes  of  implied  contracts,  i.e., \nthose  properly  called  implied  contracts,  where  the \n\nHumphries – G905793 \n \n-6- \ncontract is inferred from the acts of the parties, and \nthose   which   are   more   properly   called   quasi-\ncontracts  or  constructive  contracts,  where  the  law \nimplies  an  obligation. Caldwell  v.  Missouri  State \nLife  Insurance  Co.,  148  Ark.  474,  230  S.W.  566. \nThe  first  type  of  implied  contract  is  sometimes \ncalled a contract implied in fact and it  derives from \nthe “presumed” intention of the parties as indicated \nby  their  conduct. Martin  v.  Campanaro,  156  F.2d \n127 (2d Cir., 1946). See also, Gray v. Kirkland, 550 \nS.W.2d   410   (Tex.Civ.App.,   1977); Johnson   v. \nWhitman,  supra; United  States  v.  O.  Frank  Heinz \nConstruction Co., 300 F.Supp. 396 (S.D.III., 1969). \nIn determining whether a “tacit” but actual contract \nexists,  the  prior  course  of  dealing  between  the \nparties  is  to  be  considered. Jones  v.  Donovan,  255 \nArk.  474,  426  S.W.2d  390.  An  implied  contract  is \nproven   by   circumstances   showing   the   parties \nintended  to  contract  or  by  circumstances  showing \nthe general course of dealing between the parties. \n \nBoth parties provided relevant, legal precedent regarding implied contract. The respondent points \nout the need to consider the totality of the circumstances surrounding the relationship while also \npointing  out  the  importance of  looking  at  the  relationship  between  the  general  and  special \nemployer.  Here,  the  general  employer  being  Labor  Solutions  and  the  special  employer  being \nFNA Group.  \n FNA  Group  and  Labor  Solutions entered  into  an  express  contract  on  July  2,  2019.  That \nagreement was titled “Agreement for Temporary Personnel.” It was signed by the Vice President \nof  Operations  for  Labor  Solutions  and  Senior  Vice  President  of  FNA  Group,  Thomas  Moffett, \nwho testified at the hearing in this matter. That document can be found at Claimant’s Exhibit 2, \npages 1-4. That document references an Exhibit A titled “Statement of Work” which is found at \nClaimant’s  Exhibit  2,  pages  5-6.  It  is  undisputed  that  this  is  the  express  contract  that  was  in \neffect  on  August  19,  2019,  when  the  claimant’s  compensable  lower  left  extremity  amputation \n\nHumphries – G905793 \n \n-7- \noccurred, between Labor Solutions, the general employer, and FNA Group, the special employer. \nIt should be noted that FNA Group is termed “customer” in this agreement. \n In   review   of   the “Agreement   for   Temporary   Personnel,”   I   find   section   5   titled \n“Personnel,” which states as follows: \n5. Personnel.  Labor  Solutions,  at  its  cost,  shall  provide  personnel \n(the “Personnel”) to perform the Services. Labor Solutions shall be \nsolely responsible for the full payment of all compensation due the \nPersonnel,   including,   without   limitation,   all   wages,   benefits, \nwithholdings,  payroll  taxes  and  contributions. No  Personnel  of \nLabor Solutions shall be deemed an employee of Customer for \nany  purpose  relating  to  this  Agreement,  including,  without \nlimitation,   under   any   compensation   of   benefit   plan   of \nCustomer. (Emphasis added) \n \n The  existence  of  an  implied  contract  between  a  claimant  and  a  special  employer  relies \nheavily  on  the  amount  of  control  the  special  employer  has  over  the  general  employer’s \nemployee.  Testimony  and  evidence  from  both  parties  varies  in  an  effort  to  show  a  high  or  low \nlevel of control over the claimant. However, in this particular case, I do not believe the level of \ncontrol  over  the  claimant  is  the  primary  issue.  The  special  employer,  FNA  Group,  contracted \naway their ability to engage in an express or implied contract for hire with the claimant on July \n2,  2019,  when  they  entered  into  the “Agreement  for  Temporary  Personnel”  as  it  states: “No \nPersonnel of Labor Solutions shall be deemed an employee of Customer for any purpose relating \nto  this  Agreement,  including,  without  limitation,  under  any  compensation  of  benefit  plan  of \nCustomer.”  While  that  contract  is  not  between  the  claimant  and FNA Group,  it  is  between  the \nclaimant’s  general  employer,  Labor  Solutions,  and  FNA  Group  and  that  agreement  affected  the \nclaimant   when   he   became   an   employee   of   Labor   Solutions   during   the “Agreement   for \nTemporary Personnel” contract period. Even if the claimant and FNA Group had wanted to enter \ninto an express or implied contract for hire during that period they would contractually have not \n\nHumphries – G905793 \n \n-8- \nbeen  able  to  do  so  under  the “Agreement  for  Temporary  Personnel”  with  Labor  Solutions.  It  is \ncontractually  impossible  for  a  Labor  Solutions  employee,  here  the  claimant,  to  be “deemed  an \nemployee  of  customer  (FNA  Group)  for  any  purpose  relating  to  this  agreement,  including, \nwithout limitation,  under any compensation or benefit plan of customer.”  Thus, it is impossible \nfor  the  first  of  the  three “facts”  that  must  be  satisfied  to  prove  dual  employment  and  provide \nFNA  Group  protection  under  the  Exclusive  Remedy  of  Workers’  Compensation  Act  to  exist. \nThat “fact”  states, “The  employee  has  made  a  contract  for  hire,  express  or  implied,  with  the \nspecial employer.” \n Thomas Moffett, the Senior Vice President of FNA Group, was called as a witness by the \nrespondent  in  this  matter.  It  was  Mr.  Moffett  who  signed  the “Agreement  for  Temporary \nPersonnel” for  FNA Group. On cross-examination, Mr. Moffett was  asked about the  agreement \nand the status of the claimant under different scenarios as follows: \nQ I asked you some questions and I don’t think you knew the \nanswer, but if Emery  were to say, hey,  I am an  employee of FNA \nand I want to make a sexual harassment claim against FNA, would \nyou guys accept him as your employee? \n \nA We  would  accept  and  investigate  the  allegation,  but  we \nwould do it jointly with Labor Solutions. \n \nQ You  would  reserve  your  right  to  allege  he  is  not  our \nemployee, he is an independent contractor; right? \n \nA We  would  not  necessarily  technically  say  that.  We  would \njust   say,   hey,   look,   there   is   an   allegation   and   our   two   HR \ndepartments  for  both  companies  would interact. I don’t think we \nwould ever think for a moment that we’re making a declaration in \nterms of their employment status, but rather investigate the claim. \n \nQ Other than the declaration you made in the contract of what \nthe employment status is? \n \nA That is fair, yes. \n\nHumphries – G905793 \n \n-9- \n \nQ Okay. And I could ask you about the whole slew of things: \nAlleged  discrimination,  FMLA  violations,  EEOC,  ADA,  ERISA, \nall of those you would reserve your right to say he can’t make that \nclaim against us because he is not our employee; correct? \n \nA That is correct. \n \nQ Based on the contract you signed? \n \nA Yes, sir. \n \nQ And you agree that FNA did not provide workers’ comp for \nEmery Humphries? \n \nA That is correct. \n \nQ And   FNA   did   not   even   list   Emery   Humphries   as   an \nemployee when you were applying for workers’ comp insurance? \n \nA I was not involved in the intricacies with that. I don’t know \nwhat was involved with that. \n \nQ But during your monthly trips to Arkansas, if they were to \nask you, would you say, no, do not list the Labor Solutions’ 140 \nemployees as people that we have to pay workers’ comp premiums \non? \n \nA In that example, correct, yes, sir. \n \nQ You  guys  didn’t  offer  any  type  of  health  benefits  or \nretirement benefits, anything like that? \n \nA Not that I am aware of. \n \nQ You did not pay his Social Security or Medicare taxes? \n \nA No, sir. \n \nQ You did not withhold any taxes? \n \nA No, sir. \n \n\nHumphries – G905793 \n \n-10- \nQ Your contract that you signed provides no evidence of what \nyou  negotiated  with  Labor  Solutions  in  terms  of  pay;  is  that \ncorrect? \n \nA In terms of the wages? \n \nQ Correct. \n \nA No. \n \n It is clear that FNA Group had no desire or belief that the claimant would be an employee \nof  FNA  Group  until  such  time  as  his  employment  might  grant  civil  liability  protection.  Here, \nFNA Group wants to have its cake and eat it too. \n The  parties  in  this  matter  have  apparently  done  voluminous  research  but  have  not \nprovided the Commission with a case to consider where a  contract  between a general employer \nand a special employer forbids the general employer’s employee, here the claimant,  from being \nconsidered  an  employee  of  the  special employer “for  any  purpose.”  I,  too,  have  failed  to  find \nsuch  a  case  on  which  to  rely.  However,  in  considering  the  relationship  between  the  general \nemployer and the special employer, along with the totality of the circumstances, I find that FNA \nGroup has contracted away its ability to meet the first of the three “facts” that must be satisfied \nin Randolph v. Staffmark, 2015 Ark. App. 135, which relied upon the Supreme Court’s decision \nin Daniels v. Riley’s Health and Fitness Centers,  310  Ark.  756  (1992).  The  respondent,  FNA \nGroup, has failed to prove that the claimant was a dual employee of the general employer, Labor \nSolutions, and the respondent, FNA Group. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n\nHumphries – G905793 \n \n-11- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nNovember 14, 2022, and contained in a Pre-hearing Order filed November 15, 2022, are hereby \naccepted as fact. \n 2. FNA Group, LLC has failed to prove by a preponderance of the evidence that it was a \ndual employer of the claimant and entitled to protection under the Exclusive Remedy provisions \nof Arkansas Code Annotated §11-9-105. \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  find  that  the  respondent  has  failed  to \nprove  by  a  preponderance  of  the  evidence  that  it  was  a  dual  employer  of  the  claimant  and  is, \ntherefore,  not  entitled  to  protection  under  the  Exclusive  Remedy  provisions  of  Arkansas  Code \nAnnotated §11-9-105. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                    \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":21227,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G905793 EMERY HUMPHRIES, Employee CLAIMANT FNA GROUP, LLC, Employer RESPONDENT AMTRUST NORTH AMERICA, Carrier RESPONDENT OPINION FILED AUGUST 18, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant...","outcome":"denied","outcomeKeywords":["granted:1","denied:2"],"injuryKeywords":["knee","ankle"],"fetchedAt":"2026-05-19T23:04:03.390Z"},{"id":"alj-H202784-2023-08-18","awccNumber":"H202784","decisionDate":"2023-08-18","decisionYear":2023,"opinionType":"alj","claimantName":"Laroy Rogers","employerName":"Resolute Forest Products Us, Inc","title":"ROGERS VS. RESOLUTE FOREST PRODUCTS US, INC. AWCC# H202784 AUGUST 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ROGERS_LAROY_H202784_20230818.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROGERS_LAROY_H202784_20230818.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H202784 \n \nLAROY ROGERS,   \nEMPLOYEE                                                   CLAIMANT \n \nRESOLUTE FOREST PRODUCTS US, INC.,   \nEMPLOYER                                                   RESPONDENT \n \n                                                      \nAMERICAN ZURICH INS. CO./ \nZURICH INS. CO., \nINSURANCE CARRIER/TPA                                             RESPONDENT                \n                                    \nOPINION AND ORDER FILED AUGUST 18, 2023 \n \nHearing conducted on May 16, 2023, before the Arkansas Workers’ Compensation Commission \n(the Commission), Administrative Law Judge (ALJ) Mike Pickens, in El Dorado, Union County, \nArkansas.   \n \nThe claimant was represented by the Honorable Mark Alan Peoples, The Peoples Law Firm, Little \nRock, Pulaski County, Arkansas.   \n \nThe respondents were represented by the Honorable Michael C. Stiles, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas. The parties submitted their respective responses to the prehearing \nquestionnaire prior to the conference. \n \nINTRODUCTION \n In the prehearing order filed May 16, 2023, the parties agreed to the following stipulations \nwhich they affirmed on the record at the hearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  at  all  relevant  times \nincluding March 18, 2022, when the claimant sustained a compensable injury to his \nright foot and ankle for which the respondents paid medical and indemnity benefits.   \n \n3. The  claimant’s  average  weekly  wage  (AWW)  is  $863.71,  which  is  sufficient  to \nentitle him to weekly compensation rates of $576.00 for temporary total disability \n(TTD), and $432.00 for permanent partial disability (PPD) benefits. \n \n4. At this time, the respondents have controverted only the claimant’s request for additional \nmedical treatment after October 27, 2022. \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n2 \n  \n5. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Commission Exhibit 1 at 1-2; Reporter’s Transcript at 4). \n1. Whether the claimant is entitled to the additional medical treatment Dr. D’Orsay Bryant \nhas  recommended  at  this  time:  namely,  physical  therapy  (PT)  for  his  admittedly \ncompensable March 18, 2022, right foot and ankle injuries. \n \n2. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n3. The  parties  specifically  reserve  any  and  all  other  issues  for  future  litigation  and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; RT. 4). \n \n The claimant contends he is entitled to the medical treatment – at this time namely, PT – \nthe  claimant’s   one   (1)-time-only   change   of   physician   (COP),  Dr.  D’Orsay  Bryant,  has \nrecommended  for  the  claimant’s  admittedly compensable  right  foot  and  ankle  injuries.  The \nclaimant  hereby  specifically  reserves  any  and  all  other  issues  for  suture  determination  and/or \nlitigation. (Comms’n Ex. 1 at 2; RT. 4). \n The respondents contend they have paid the claimant all medical, indemnity, and any and \nall other benefits to which he is entitled pursuant to the Arkansas Workers’ Compensation Act (the \nAct),  and  that  to  date  they  have  not  controverted  the  payment  of  any  benefits  whatsoever.  The \nrespondents  contend  they  have  paid  all  related  medical  expenses  on the claimant’s  behalf. The \nrespondents  contend  they  have  paid  all TTD  benefits  to  which  the  claimant  is  entitled  while  he \nwas off work as a result of the March 18, 2022, compensable incident. The respondents contend \nthat on May 10, 2022, the claimant’s original treating physician, Dr. Robert A. Watson II, released \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n3 \nhim  to  full  duty  work  without  any  physical  limitations  or  restrictions.  Thereafter,  the  claimant \nexercised his COP right to Dr. Bryant, who has at this time has recommended the claimant undergo \nadditional medical treatment in the form of PT. The respondents have not yet agreed to pay for Dr. \nBryant’s PT recommendation. Finally, the respondents contend that pursuant to Ark. Code Ann. \nSection  11-9-411  (2023  Lexis  Replacement),  if  the  Commission  awards  the  claimant  any \nadditional benefits they are entitled to a dollar-for-dollar set-off/credit for all benefits paid by the \nclaimant’s  group  health  carrier,  as  well  as  any  and  all  short-term  disability  (STD),  long-term \ndisability (LTD), and unemployment benefits paid to the claimant by any third-party. (Comms’n \nEx. 1 at 2-3; RT. 4). \n                        STATEMENT OF THE CASE \n The claimant, Laroy Rogers (the  claimant), is 57 years old. On March 18, 2022, he was \nworking  with  Resolute  Forest  Products  (Resolute)  running  a  stick  machine  when  the  cart  at  the \nend of the conveyor belt began to move as he was stepping on it in order to facilitate the sticks \nmoving forward on the belt where they would then fall into the loading cart and a forklift would \nhaul them to another location for disposal. When the cart moved this caused the claimant to catch \nhis  right  foot  in  between  a  railing  and  the  cart,  and  he  injured  his  right  foot  and  ankle.  The \nrespondents accepted these injuries as compensable and paid medical and indemnity benefits. (RT. \n7-9; Comms’n Ex. 1 at 2). \n On  March  19,  2022,  the  claimant  presented  himself  for  evaluation  and  treatment  at  the \nMedical Center of Central Arkansas. Diagnostic imaging revealed the claimant had sustained a, \n“Minimally displaced fracture of the third metatarsal”, as well as “Possible nondisplaced fractures \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n4 \nat the base of the third and fourth proximal phalanges.” (Respondents’ Exhibit 1 at 1). The claimant \nattended a follow-up visit with Dr. Robert Watson, a physician with the Family Medical Care clinic \nin El Dorado. Dr. Watson’s clinic notes the claimant stated, “overall he is a lot better”, but he was \nstill having “soreness and struggles with bending toes.” (RX1 at 2). Dr. Watson’s impression at \nthat time was that the claimant’s right metatarsal fracture was healing, and he had right food pain, \ncellulitis,  and  a  bunion.  (Id.).  Two  (2)  weeks  later,  on  May  10,  2022,  the  claimant  followed-up \nwith Dr. Watson. Dr. Watson’s clinic note for this visit indicates the claimant told him, “his right \nfoot is feeling a lot better.” (RX1 at 3). Dr. Watson’s impression of the claimant’s condition at that \ntime was that he had a metatarsal fracture, foot pain, and cellulitis. (Id.). The claimant testified he \nwas  released  to  return  to  full  duty  work  around  May  22  or  23,  2022,  but  that  he  was  unable  to \nperform full duty work because he was still wearing an ankle/foot stabilizing boot and, in essence, \nhe was still healing, and his right foot and ankle were swollen and still hurting. (RT. 9-11).   \n Because he was still experiencing swelling and pain in his right foot and ankle, on May 4, \n2023,  the  claimant  presented  himself  for  evaluation  and  treatment  to  Dr.  D’Orsay  Bryant,  an \northopedic  surgeon  associated  with  the  Tri-State  Orthopedic  and  Sports  Medicine  Center  in  El \nDorado. Dr. Bryant’s clinic note for this visit noted the claimant had, “tenderness at the hallux and \nfirst and second metatarsal”; “pain on flexion and extension of the great toe MTP joint/hallux”; \n“difficulty with flexion and extension of the toes of the right foot with decreased sensation along \nthe  dorsal  and  plantar  aspects.”  (Claimant’s  Exhibit  1  at  1).  Dr.  Bryant’s  impression  of  the \nclaimant’s right foot and ankle condition at that time was, “Right foot third metarsal fracture by \nhistory with healed laceration.” (Id.). Dr. Bryant concluded the claimant:   \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n5 \n ...[I]s a suitable candidate for the conservative treatment program recommended \nin  the  initial  office  visit.  Physical  therapy  three  times  a  week  for  six  weeks  with \nrange  of  motion  and  strengthening  exercises  is  recommended.  He  is  a  suitable \ncandidate  for  physical  therapy,  right  foot  range  of  motion  and  strengthening \nexercises three times a week for six weeks.     \n \nCX1 at 2). Dr. Bryant also prescribed the claimant Gabapentin, medication designed to treat nerve \npain. (Id.). The respondents did not approve Dr. Bryant’s aforementioned conservative treatment \nrecommendations. (Comms’n Ex. 1 at 2-3; RT. 10-15) (Bracketed material added).   \n The claimant  returned to see  Dr. Bryant on June  1, 2023. Dr. Bryant noted the claimant \nhad continued to work, and that the PT he had PT he had recommended was not approved [by the \nrespondents]. (CX1 at 1 at 3, RT. 37). In his clinic note of this 6/1/2023 visit Dr. Bryant went on \nto describe his impression the claimant’s right foot/ankle condition as, “Persistent foot pain with \nun-rehabilitated  foot.”  (  Id.).  Dr.  Bryant  also  reiterated  his  5/4/2023  PT,  etc.,  recommendation, \nspecifically  noting  the  claimant  had,  “not  had  any  substantial  treatment  since  his  injury  on \n03/18/2022 for over a year.” (Id.). He ended his clinic note by clearly and bluntly stating: “Physical \ntherapy is mandatory for long-lasting effective result. Follow up in six weeks.” (CX1 at 4, RT. 38).   \n At the hearing the claimant testified his right foot/ankle were swollen and still hurt. He also \nagreed to allow the ALJ and both attorneys to visibly see the obvious swelling in the area of his \nright foot and ankle. He further testified he was self-treating by rubbing and soaking his foot every \nevening after he had worked 12-hour days. (RT. 12-25). \n \n \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n6 \nDISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-9-\n704(c)(3) (2023 Lexis Repl.) states that the  ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires them to read and construe the Act  in its entirety, and to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987).   \n All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Dena Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n7 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.   \n The  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999).  \nThe  claimant  has  met  his  burden  of  proof  in  demonstrating  he  is  entitled  to  additional \nmedical  treatment –  specifically,  the  PT and  strengthening  exercises –  Dr.  Bryant  has \nrecommended. \n Ark. Code Ann. Section 11–9–508(a) (2022 Lexis Supp.) requires  employers to provide \nmedical  services  that  are  reasonably  necessary  in  connection  with  a  compensable  injury.  A \nclaimant may be entitled to additional medical treatment after his healing period has ended if the \nproposed treatment is geared toward management of symptoms associated with his compensable \ninjury. Santillan v. Tyson Sales & Distribution, 2011 Ark. App. 634, 386 S.W.3d 566 (Ark. App. \n2011); Cossey v. Pepsi Beverage Co., 2015 Ark. App. 265, 3, 460 S.W.3d 814,  817 (Ark. App. \n2015).  Of  course,  significantly,  in  addition  to  being  reasonably  necessary  for  treatment  of  her \ncompensable  injury,  the  requested  additional  medical  treatment  must  be causally  related  to  the \ncompensable injury.     \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n8 \n \n In applying the applicable law to the facts of this case, I am compelled to find the claimant \nhas met his burden of proof in demonstrating the PT and strengthening exercises Dr. Bryant has \nrecommended for the claimant are both causally related to and reasonably necessary in light of his \nadmittedly compensable right foot and ankle injuries of March 18, 2022.   \n Indeed,  not  only  the  law,  but  common  sense,  life  experience,  and  the  Commission’s \nsuperior  knowledge,  experience,  and  issues  within  its  jurisdiction  and  purview,  support  the \nclaimant’s contention he is entitled to the  conservative  treatment  Dr.  Bryant  has  recommended. \nJust as a juror is not required to set aside his common knowledge (and common sense), likewise \nan  ALJ  as  a  finder  of  fact  may  consider  all  relevant  evidence  in  light  of  his  or  her,  “own \nobservations  and  experiences  in  the  affairs  of  life.” Ark.  Model  Jury  Instr., Civil,  104.  Both \ncommon  sense  and  life  experience,  as  well  as  the  Commission’s  knowledge  and  experience  in \nhearing and rendering opinions, demonstrate that oftentimes foot and/or ankle injuries often result \nin swelling and/or pain for extended periods of time – especially when an employee is working on \ntheir feet for long periods of time.   \n In  summary,  I  found  the  claimant  to  be  a  credible  witness,  and  the  additional  medical \ntreatment  he  is  requesting  to  be  eminently  reasonably  necessary  and  related  to  his  admittedly \ncompensable injury. See, Santillan, and Cossey, supra. To quote Dr. Bryant: “Physical therapy is \nmandatory  for  [a]  long  lasting  effective  result”  in  the  claimant’s  case.  (CX1  at  4;  RT.  38) \n(Bracketed material added). \n \n\nLaroy Rogers, AWCC No. H202784 \n \n \n \n9 \n     Therefore, for all the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n  1. The stipulations contained in the prehearing order filed May 23, 2023, which the   \n   parties affirmed on the record at the hearing, hereby are accepted as facts. \n \n  2. The claimant has met his burden of proof in demonstrating he is entitled to the   \n   additional medical treatment, specifically, the PT and strengthening exercises Dr. \n   Bryant has recommended. \n \n  3. Since the only issue litigated at the subject hearing was the claimant’s entitlement \n   to additional medical care, the he claimant’s attorney, of course, is not entitled to   \n   a fee on these facts.   \n \n If  they  have  not  already  done  so  the  respondents  hereby  are  ordered  to  pay  the  court \nreporter’s invoice within twenty (20) days of their receipt of this opinion and order. \n       IT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \n                                          Administrative Law Judge \n \n \n \nMP/mp","textLength":16585,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202784 LAROY ROGERS, EMPLOYEE CLAIMANT RESOLUTE FOREST PRODUCTS US, INC., EMPLOYER RESPONDENT AMERICAN ZURICH INS. CO./ ZURICH INS. CO., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED AUGUST 18, 2023 Hearing conducted on May 16, 2023, before the ...","outcome":"granted","outcomeKeywords":["affirmed:1","granted:3","denied:1"],"injuryKeywords":["ankle","fracture"],"fetchedAt":"2026-05-19T23:04:05.469Z"},{"id":"alj-H106661-2023-08-16","awccNumber":"H106661","decisionDate":"2023-08-16","decisionYear":2023,"opinionType":"alj","claimantName":"Charlesa Lawless","employerName":"At&t Technical Services Company Inc","title":"LAWLESS VS. AT&T TECHNICAL SERVICES COMPANY INC. AWCC# H106661 AUGUST 16, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//LAWLESS_CHARLESA_H106661_20230816.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LAWLESS_CHARLESA_H106661_20230816.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H106661 \n \nCHARLES A. LAWLESS, Employee                                                                            CLAIMANT \n \nAT&T TECHNICAL SERVICES COMPANY INC., Employer                           RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier                    RESPONDENT \n \n \n OPINION FILED AUGUST 16, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by DAVID C. JONES, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 23, 2023, the above captioned claim came on for hearing at Fort Smith, Arkansas.  A \npre-hearing conference was conducted on March 16, 2023, and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on May 28, 2021. \n            3.   Claimant sustained a compensable injury on May 28, 2021. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.  Whether claimant is entitled to additional temporary total disability benefits and/or        \n       temporary partial disability benefits, and medical benefits. \n2.   Attorney’s fees. \n\nLawless-H106661 \n2 \n \nAll other issues are reserved by the parties. \nThe claimant contends that “He has never reached maximum medical improvement regarding \nhis  May  28,  2021, injury, and  that  although  his  then  authorized  treating  physician  opined  that  the \nclaimant could return to work in April 2022, the respondent/employer did not allow the claimant to \nreturn  to  work  and  the  claimant  was  unable  to  find  work  elsewhere.  Accordingly,  the  claimant \ncontends  that  he  is entitled  to  temporary  disability  benefits  from  when they  were  last  paid  in  2022 \nthrough a date yet to be determined. Claimant acknowledges that during the period that he received \nunemployment benefits he would only be entitled to temporary partial disability benefits. The claimant \ncontends that he is entitled to additional medical benefits including a vocal cord evaluation and motion \nx-rays recommended by the now authorized treating physician, Dr. Mangels. The claimant contends \nthat his attorney is entitled to an appropriate attorney’s fee. The claimant contends that at some point \nin the future he will be entitled to permanent disability benefits; however, that issue is not ripe for \nadjudication at this time.” \nThe respondents contend that: \n“1.  The respondents contend that all appropriate benefits have been paid to date in regard to \nthe claimant’s neck injury. In that regard, the respondents accepted the claimant’s neck injury of May \n28, 2021, and initiated temporary total disability benefits when the claimant entered his healing period. \nThe  respondents  contend  that  all  appropriate  temporary  total  disability  benefits  have  been  paid  to \ndate.  In  that  regard,  the  respondents  paid  the  claimant  temporary  total  disability  benefits  while  he \nremained  within  his  healing  period  and  suspended  temporary  total  disability  benefits  when  the \nclaimant was released to return to work in a regular duty capacity as of April 5, 2022. \n2.  The respondents contend that all appropriate medical benefits have been paid to date. It \nappears  that  there  were  some  delays  in  approval  of  the  new cervical  MRI,  which  has  subsequently \n\nLawless-H106661 \n3 \n \ntaken  place  since  the  prior  hearing  request.  It  also appears  that  there  was  a delay  in scheduling  the \nvocal  cord  testing,  which  is  also  being  addressed  with  the  authorized  provider  at  this  point.  Dr. \nMangels previously made the referral, the TPA has approved the testing, but the provider to perform \nthe testing has not scheduled the same as of yet. \n3.    The  respondents  contend  that  as  the  claimant  was  previously  placed  at  maximum \nimprovement on April 5, 2022, this claim should be ripe for litigation on any type of wage loss claim. \nIn that regard, it does not appear that an anatomical impairment rating has been assigned as of yet. \nHowever,  once  the  anatomical  impairment  rating  is  assigned,  it  appears  that  the  parties  should be \nlitigating the wage loss dispute based upon the claimant’s prior release to return to work in a full-duty \ncapacity, he would not be entitled to wage loss benefits. \n4.   The respondents contend that they would be entitled to an offset for any group health \ncarrier, group disability carrier, and/or unemployment benefits paid to or on behalf of the claimant. \nIt appears that the claimant did indeed receive both short-term disability benefits and possibly long-\nterm disability benefits, as well as unemployment benefits, for which the respondents would be entitled \nto  an  offset.  The  claimant  applied  for  unemployment  benefits  on  or  about  May  17,  2022, and  was \nreceiving $406.00 per week. The respondents are seeking updated unemployment records at this point. \n5.  The respondents would reserve the right to amend and supplement their contentions after \nthe supplemental discovery has been completed.”  \n From  a  review  of  the record  as  a  whole,  to  include  medical  reports,  documents,  and  other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n\nLawless-H106661 \n4 \n \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on \nMarch 16, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as \nfact. \n 2.   Claimant has failed to prove by a preponderance of the evidence that he is entitled to \ntemporary total disability and/or temporary partial disability from May 1, 2022, through May 23, \n2023.  \n FACTUAL BACKGROUND \n Prior to taking any testimony, claimant withdrew his claim for medical benefits, as the parties \nhad reached an agreement as to this portion of his claim.  As such, this matter proceeded solely on \nthe question of claimant’s entitlement to temporary total disability benefits (TTD) or temporary partial \ndisability benefits (TPD) from May 1, 2022, to the date of the hearing, and to an award of attorney’s \nfees on any such indemnity benefits awarded.  All other issues were reserved. \n Also, before the testimony began, respondents objected to several letters written by claimant’s \nattorney that related solely to claimant’s request for medical treatment prior to the hearing.  As that \nissue was reserved by the claimant, I found certain documents offered by claimant had no relevance \nto this hearing and granted respondents’ objection.  Claimant then proffered his non-medical exhibits \n#7,  #14  and  #15. These  were  included  in  the  record  after Claimant’s  Exhibit  3,  and  before \nrespondents’ exhibits, but were not considered in rendering this opinion.  \nHEARING TESTIMONY \n \n Claimant testified that he was injured on May 28, 2021, when he was trying to hold a door \nopen  with  his  right  arm  and  carry  eight  laptops  into  a  building.  He  said  he  felt  something  like  an \nelectric shock that went down his shoulder into his arm. He finished the task he had been assigned \n\nLawless-H106661 \n5 \n \n \nand then went home trying to fix the problem himself. He eventually saw Dr. Gannon Randolph, an \northopedic doctor, who performed surgery on his neck on January 5, 2022. Amanda Hawes, PA-C, \nwho is in Dr. Randolph’s office, released claimant on February 28, 2022, to return to light duty work \nand then on April 5, 2022, released him to full duty. However, claimant did not see PA-C Hawes in \nDr. Randolph’s office on  either  of  those  days.  He  next  saw  Dr.  Randolph  on  April  25,  2022, and \nfollowing that visit, claimant was scheduled to return to Dr. Randolph in three months. When he was \naware that he was released to return to work, he contacted his employer and was told that he had been \nremoved from the contract. Claimant was instructed to go to the AT&T job search site, but there were \nno jobs listed on that site for which claimant was qualified. Claimant testified he drew unemployment \nfor three months and conceded that there might be a week that he did not check with as many possible \nemployment opportunities as he was supposed to. Claimant believes he is limited in what he can do \nbecause his voice was affected by the surgery. His job with AT&T required him to talk frequently with \ncustomers, other contract companies, and with team members.  \n On July 21, 2022, Dr. Randolph issued a report that claimant would be at maximum medical \nimprovement (MMI) in six months; however, claimant did not return to be examined by Dr. Randolph \nafter six months because he had requested a change of physicians. He first saw Dr. Kyle Mangels on \nNovember 21, 2022. During this visit, Dr. Mangels placed a 40-pound lifting restriction on claimant \nand had not released claimant from treatment as of the date of the hearing. \n Claimant  received  short-term  and  long-term  disability  benefits,  and  he  paid  extra  on  the \ninsurance that the company provided to receive a higher benefit.  \n Claimant stated that as of the date of the hearing, the effects that he is having as a result of \ninjury and/or the surgery included a diminished range of motion in looking up or turning side to side. \nHis voice had changed, and he was experiencing pain and discomfort at night to the point that he was \n\nLawless-H106661 \n6 \n \n \nnot sleeping. He did not believe that he could perform the job that he had at the time of the accident \nin his current physical condition, because it involved watching computer screens, talking, and sitting \nat  a  keyboard, all  of  which  was  either  painful  or  difficult.  Claimant  testified  that  he  had  not  had \nproblems with his neck before the accident happened, although the medical records show that he had \nsome injections in his neck in 2016. Claimant believes those injections were for a headache rather than \nfor a neck injury. He noted that the injections were at the base of the skull, at C1, whereas his current \nproblem is at C5-6.   \n On cross-examination, claimant was unaware that he had a disc protrusion at C6-7 in 2016. \nClaimant  conceded  that  he  received  $736.00 from respondent Sedgwick in  addition  to  receiving \n$506.52 from his disability plan at the same time. Claimant was unaware of what he received by way \nof long-term disability benefits but did not dispute what the records that were introduced showed. \n Claimant  agreed  that  the  numbness  and  radicular  symptoms  in  his  arm  resolved  after  the \nsurgery. During his July 21, 2022, visit with Dr. Randolph, claimant inquired about his restrictions and \nunderstood that he was free to return to work at that time. Claimant disputed an entry in Dr. Mangels’ \nrecords that said he was retired and asserted that he was still looking for a job. \n Claimant clarified that while working for AT&T, it was part of a sub-contract for the federal \ngovernment. The company that had the contract was Inserso. Claimant was not aware that the contract \nwas renewed every five years or so but did understand that his job had moved to a Little Rock location. \nHe assumed he was the only person that had this job in the state of Arkansas. Claimant spoke with \nMr. Carlos Colon about going back to work in August 2021, but he had not been released from care \nat that point. After Dr. Randolph said he could return to work in April 2022, claimant testified that \nhe contacted Mr. Colon after learning that the contract was being sent to Little Rock. Claimant was a \nSystems Engineer II; he ran network security, migrated the entire system onto the cloud, worked for \n\nLawless-H106661 \n7 \n \n \nHomeland Security with a DOD top-secret clearance, worked with computers, printers, and scanners. \nWhile  some  of  that  did  not  require  claimant  to  talk,  he  said  there  were  times  when  he  was  doing \nremote work when he was on someone else’s computer and speaking with them at the same time. He \nsaid he was pretty much on the phone all day. His job did not require heavy lifting except when he \nhad to move a printer or computer to a work bench.  \n While claimant had testified at the hearing that he could not do the job he had with AT&T, in \nhis deposition he said that he could do his job at that point. He had located some jobs out of state \nand thought at the time of his deposition that he had several prospects for jobs. He did not remember \nsaying in his deposition that there were positions available in Cincinnati and Washington D.C., but \nconceded he didn’t want to move to D.C.  \n Claimant  said  that  he  applied  for  unemployment  on  May  17,  2022, and  received  $406.00  a \nweek  of  unemployment.  When  he  filed  for  unemployment,  he  said  that  he  had  been  let  go  from \nAT&T. He conceded that at the time he filed for unemployment that he had VA disabilities but as far \nas his physical abilities to work, he had no disabilities, and could start work immediately. There was \nthen this exchange: \n \nQuestion by Mr. Jones:  So needless to say, you weren’t totally incapacitated \nfrom earning wages since last year; is that correct? \nAnswer by claimant: What was that? \n \nQ: You weren’t totally incapacitated from earning wages; you were—you had \njob prospects,  you were drawing unemployment benefits?  \nA:  Sure. \n \n On redirect-examination, claimant reaffirmed that he was released to go back to work by Dr. \nRandolph but had not been released from care. He said that it was not a routine requirement in his \njob that he did heavy lifting, but there were times that he had to lift servers, uninterruptable power \nsupplies, and printers. \n\nLawless-H106661 \n8 \n \n \n On  recross-examination,  claimant  agreed  that  he  was  not  required  to  lift  heavy  servers  or \nprinters by himself, as help was available. Typically, a laptop was the heaviest item he had to lift.  \n After claimant rested his case, respondents called Mr. Carlos Colon who was claimant’s direct \nsupervisor at AT&T. He explained how AT&T was a sub-contractor with Inserso, as it was Inserso \nthat had a contract with the federal government. He said claimant’s position was moved from Fort \nSmith to Little Rock toward the end of the summer of 2021. While claimant was unable to work due \nto his medical treatment, the position in Little Rock had to be filled. Mr. Colon did not recall having \ncontact with claimant in 2022 about him returning to work. He said that while claimant had to talk on \nthe telephone some of his working day, it was not something he expected claimant to do constantly. \nClaimant was required to travel a lot and was not expected to be talking on the phone while he was \ndriving.  \n On cross-examination, Mr. Colon said that claimant had not been offered employment in a \nparticular position since he was released to return to work. He did not know if anyone had notified \nhim  that  claimant  had  been  released  to  return  to  work.  He  said  during  his  last  conversation  with \nclaimant, it was his impression that claimant was not interested in continuing to work but recognized \nthat  conversation  took  place  in  the  summer  of  2021  when  claimant  was  still  under  active  medical \ntreatment. He agreed that AT&T had not offered claimant any employment opportunities since he \nwas  released  to  return  to  work  in  April  2022.  Mr.  Colon  said  the  lifting  requirements  of  the  job \nclaimant performed was up to fifty pounds and that it was an essential function of the job.  \n On  re-direct  examination  Mr.  Colon  said  that  there  were  thousands  of  job  openings  with \nAT&T but as far as he knew, claimant did not contact him or AT&T about going back to work. Mr. \nColon said that claimant was aware that the contract had moved to Little Rock months before he had \nbeen released to full duty in April 2022.  \n\nLawless-H106661 \n9 \n \n \nFollowing Mr. Colon’s testimony, claimant was called in rebuttal and stated that in July 2022 \nhe  contacted AT&T and indicated  he  had  been  released to  go  back  to work  but was  not  offered a \nposition. \n \nREVIEW OF THE MEDICAL EXHIBITS  \n  \n Most of the pertinent information in the medical records were brought out during claimant’s \ntestimony. Respondents did not controvert that claimant had a compensable injury on or about May \n28, 2021, nor did it dispute the surgery performed by Dr. Randolph on June 5, 2022, was reasonable \nand necessary. As the issue in this case centers on claimant’s entitlement to temporary total disability \nor temporary partial disability benefits from May 1, 2022, until the date of the hearing, the records \nfrom April 2022 until April 2023 are the most relevant.  \n On April 21, 2022, claimant returned to see Dr. Randolph, which was three months since he \nhad  undergone  cervical  surgery.  At  that  time,  claimant  reported  that  his  radicular symptoms  had \ncompletely resolved  but  he  was  still  having  some  pain  on  the  left  side  of  his  neck  and  was  having \ndysphagia.  That  report  did  not  mention  any  restrictions on claimant’s physical activity. Although \nclaimant  testified  that  he did  not  see  Dr. Randolph  on  July  21,  2022, the  records  submitted  by  the \nparties showed  there  was  a  visit  in  which  claimant  received a  trigger  point  injection.  Dr.  Randolph \nanticipated that claimant would be at maximum medical improvement in six months and mentioned \nat  that  time  a  functional capacity  evaluation  and  an  impairment  rating  would  be  considered.  Dr. \nRandolph also included this sentence: \n“I did discuss with the patient that with a level one ACDF I would let him go \nback to play in the NFL, so I really do not have any restrictions for him.” \n \n Claimant exercised his right to have a change of physician and next saw Dr. Kyle Mangels on \nNovember 21, 2022. At that time, claimant was reporting that he had pain on the left side of his neck. \n\nLawless-H106661 \n10 \n \n \nDr. Mangels wanted a new cervical MRI and at that time imposed a forty-pound lifting restriction. He \ndid not opine on claimant’s ability to work, perhaps because he was under the impression claimant \nwas not going to be employed: “He is retired now and not working.”  Even so, Dr. Mangels completed \na Physician’s Recommendation Report at that time, stating that claimant had not reached maximum \nmedical improvement but was not temporarily totally disabled.  \nClaimant returned to see Dr. Mangels on March 8, and at that time, Dr. Mangels said:  \n“I think the patient is going to need another neck surgery interiorly, but we \nneed to see what the ear, nose, and throat doctor thinks about a vocal cord \ncheck later next month. This is scheduled for April 25, 2023.”  \n \n Dr. Mangels also recorded:  \n \n“He can lift up to 40 pounds and alternate sitting and standing as required \nby the patient, and these restrictions are temporary, still effective today and \nthese are the same as before.”  \n \n On April 25, 2023, claimant underwent a laryngoscopy, which was performed by Dr. Michael \nGwartney. Dr. Gwartney’s impression was “dysphonia post interior approach for cervical fusion on \nthe right side. The right cord appears to be moving well. He could have some superior laryngeal nerve \nissues which would go along with his history of occasionally choking.” \nREVIEW OF NON-MEDICAL EXHIBITS \n Claimant  submitted  two  letters  from his attorney to respondents’ counsel, both dated July \n2022 asking that claimant either be provided employment or that temporary total disability benefits \nbe reinstated.  \n Respondents’ exhibits included an e-mail from Edwin Anderson of Inserso Corporation dated \nMay  4,  2021, which  stated  that  there  was  going  to  be  a  move  from  Fort  Smith,  Arkansas  to  Little \nRock.  I  note  that claimant  was not  included  on  that email.  There were also  documents  regarding \nclaimant’s job description with AT&T to  fill  the  Inserso position,  a  letter  to  claimant  regarding \n\nLawless-H106661 \n11 \n \n \nclaimant's application for short-term disability benefits, an e-mail regarding short-term disability and \nlong-term disability benefits, records of what was paid to claimant pursuant to his short-term disability \nand  long-term  disability  insurance  and  several  pages  from  the  Arkansas  Division  of  Workforce \nServices regarding claimant’s application for unemployment benefits. Of most interest regarding the \nclaim for temporary total disability benefits is the application for unemployment insurance benefits in \nwhich claimant stated on May 18, 2022, that he could begin work immediately, could work full time, \nand had no disabilities that would limit his ability to perform his normal job duties. Claimant drew 16 \nweeks of unemployment benefits between May 28, 2022, and September 12, 2022.   \nADJUDICATION \n \n As set out above, the only issue that was adjudicated at the hearing was claimant’s entitlement \nto TTD or TPD benefits from  May 1, 2022, until a date to be determined.  Respondents accepted \nclaimant’s cervical spine injury and paid TTD benefits until May 1, 2022.  As a cervical spine injury is \nan unscheduled injury, claimant must prove by a preponderance of the evidence that he remains within \nhis healing period and suffers a total incapacity to earn wages in order to receive TTD or TPD benefits, \nAllen Canning Co. v. Woodruff, 92 Ark. App. 237, 212 S.W.3d 25 (2005).  As set out above, claimant’s \ncontention is that he had not reached MMI when he was released to return to full duty, and because \nAT&T did not allow him to return to work, he is entitled to TTD or TPD benefits.\n1\n  After reviewing \nall the documentary evidence and considering the testimony, I agree with claimant that he had not \nreached  MMI  when  he  was  released  to  full  duty,  but I disagree that  he  is  entitled  to TTD  or TPD \nfrom May 1, 2022, through May 23, 2023.  \n Taking the second part of claimant’s argument first, the job claimant had in Fort Smith with \n \n1\n While claimant did not specifically plead that he was entitled to additional TTD/TPD benefits pursuant to \nA.C.A.§11-9-505(a)(1), that is the essence of his argument on this point.  \n\nLawless-H106661 \n12 \n \n \nAT&T no longer exists.  I found Mr. Colon to be a credible witness on this point; claimant did not \ndispute  that  the  position he  held  in  Fort  Smith had  moved  to  Little  Rock.      As  both  witnesses \nexplained, AT&T was a subcontractor with Inserso, who in turn had a contract with the United States \nDepartment  of  Homeland  Security.   On  May  4,  2021, 24 days before claimant’s injury, there  was \nalready a plan in place to shift claimant’s position to Little Rock.  That move was done in August 2021, \nbefore claimant had been released to return to work in any capacity.   Because of the contract with \nInserso, AT&T  hired  another Systems  Engineer while claimant was under doctor’s restrictions.  I \ncannot find that AT&T lacked reasonable cause in refusing to return claimant to his previous position, \nas that position had been filled as per the requirements of its contract with Inserso.    \n As for the failure to reach MMI, from the period of May 1, 2022, until he saw Dr. Mangels on \nNovember 21, 2022, there are no medical records to support claimant’s contention that he was unable \nto work.  On the contrary, Dr. Randolph explained in his July 21, 2022, report that claimant was under \nno  restrictions,  and  tacitly  adopted  the  release forms  completed  by  PA-C  Hawes  for  light  duty  on \nFebruary  28,  2022,  and  full  duty  on  April  5,  2022, as being consistent  with  his normal protocol.  \nClaimant testified on direct examination that he didn’t think he could do the job he had at the time of \nthe  accident and  on cross-examination,  said that  he did  not  believe he  was totally incapacitated. \nAdditionally,  claimant  was  actively  seeking  employment  as  required  by  the  Arkansas  Division  of \nWorkplace Services to draw unemployment benefits, demonstrating that he believed he was able to \nreturn to work in some capacity.  \n At claimant’s first visit with him, Dr.  Mangels  imposed  a  40-pound  lifting  restriction  on \nclaimant on November 21, 2022, and stated in his March 8, 2023, report that claimant would need to \nalternate sitting and standing as required.  Perhaps because claimant wasn’t working or maybe because \nhe  thought  claimant was retired, Dr.  Mangels did not  complete a  recommendation  report after  the \n\nLawless-H106661 \n13 \n \n \nMarch 2023 visit as he did in November 2022; however, he stated that claimant’s restrictions “are the \nsame as before.”  At that time, Dr. Mangels still believed claimant had not yet reached MMI but was \nnot temporarily totally disabled.   \nBecause TTD  benefits  do  not,  in  all  cases,  correspond  to  the  healing  period, Cnty.  Mkt.  v. \nThornton, 27 Ark. App. 235, 770 S.W.2d 156 (1989), claimant cannot solely rely on the statement by \nDr.  Randolph  in  July  2022  that  he  would  be  at  MMI  in  six  months to support  his  TTD  claim.  \n“Temporary-total disability is that period within the healing period in which the employee suffers a \ntotal incapacity to earn wages,” Arkansas State Highway Department v. Breshears, 272 Ark. 244, 613 S.W.2d \n392 (1981).  I see nothing in the medical records that supports a conclusion that claimant had a total \nincapacity to earn wages after he was released to full duty in April 2022, especially when I consider \nnot only the medical evidence but also “his age, education, experience, and other matters reasonably \nexpected to affect the claimant’s earning power.” Breshears, Id. Further, claimant himself denied he had \na total incapacity to earn wages (TR. 45); he only testified he could not do his position with AT&T \n(TR.21)   \nBecause I do not believe AT&T acted unreasonably in filling claimant’s position and because \nthe evidence does not support claimant’s contention that he was totally incapacitated due  to his \nunscheduled injury from May 1, 2022, until the date of the hearing of this matter, I find that claimant \nhas failed to meet his burden of proving entitlement to TTD or TPD during the period from May 1, \n2022, through May 23, 2023. \nORDER \n \nClaimant has failed to meet his burden of proving by a preponderance of the evidence that he \nwas temporarily totally disabled and/or temporarily partially disabled between May 1, 2022, and May \n23, 2023, as a result of his compensable injury. Therefore, his claim for those indemnity benefits is \n\nLawless-H106661 \n14 \n \n \nhereby denied and dismissed. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \nhearing transcript.  \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":27619,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H106661 CHARLES A. LAWLESS, Employee CLAIMANT AT&T TECHNICAL SERVICES COMPANY INC., Employer RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., Carrier RESPONDENT OPINION FILED AUGUST 16, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:4"],"injuryKeywords":["neck","cervical","shoulder","back"],"fetchedAt":"2026-05-19T23:03:57.188Z"},{"id":"alj-H207568-2023-08-16","awccNumber":"H207568","decisionDate":"2023-08-16","decisionYear":2023,"opinionType":"alj","claimantName":"Jimmy Martinez","employerName":"Tyson Poultry, Inc","title":"MARTINEZ VS. TYSON POULTRY, INC. AWCC# H207568 AUGUST 16, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MARTINEZ_JIMMY_H207568_20230816.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARTINEZ_JIMMY_H207568_20230816.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207568 \n \nJIMMY MARTINEZ,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nTYSON POULTRY, INC., \nEMPLOYER                                                                                                         RESPONDENT \n \nTYSON POULTRY, INC./ \nTYNET CORP. \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED AUGUST 16, 2023 \n \nHearing conducted on Tuesday, August 15, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Jimmy Martinez, pro se, of Hope, Hempstead County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable J. Matthew Mauldin, Roberts Law Firm, \nLittle Rock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n     A hearing was conducted on Tuesday, August 15, 2023, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark.  Code  Ann.  §  11-9-702(a)(4)  (2023  Lexis \nReplacement) and Commission Rule 099.13 (2023 Lexis Repl.). \n     On  June  19,  2023,  the  respondents  filed  with  the  Commission  a  motion  to  dismiss  without \nprejudice (MTD) and brief in support thereof requesting that this claim be dismissed for lack of \nprosecution. Thereafter, pursuant to the applicable law and in advance of the hearing the claimant \nwas mailed a copy of the respondents’ MTD and the subject hearing notice via the United States \nPostal Service (USPS), Certified Mail, Return Receipt Requested, which he received on July 21, \n2023. (Commission’s Exhibit  1).  Thereafter,  the  claimant  failed  and/or  refused  to  object  to  the \n\nJimmy Martinez, AWCC No. H207578 \n2 \n \nrespondents’ MTD, or to respond in any way to either the Commission or the respondents; and he \nfailed  and/or  refused  to  appear  at  the  subject  hearing. According  to  respondents’  counsel,  who \ncontacted and visited with the pro se claimant by telephone on June 23, 2023, his file notes reflect \nthe  claimant  advised  him  he  no  longer  wished  to  pursue  his  claim,  and  he  requested  the \nrespondents’ attorney to not contact him any further about the matter. \n     The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n     Consistent  with Ark.  Code  Ann.§  11-9-702(a)(4),  as  well  as  our  court  of  appeals’  ruling  in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim at this time. \n     Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed and received due and legal notice of both the respondents’ MTD \nand the subject hearing date, time, and place, the claimant neither inquired concerning nor \nobjected nor responded to the motion in any way, and he did not appear, nor cause anyone \nto appear on his behalf, at the subject hearing. Therefore, the claimant is deemed to have \nwaived his right to a hearing on the respondents’ motion to dismiss without prejudice. \n \n3. The claimant has to date failed and/or refused to request a hearing within the last six (6) \nmonths, and he has failed and/or refused to take any action(s) to prosecute his claim. \n \n\nJimmy Martinez, AWCC No. H207578 \n3 \n \n4. Therefore, the  respondents’  motion  to  dismiss  without  prejudice  filed  June  19,  2023, is \nhereby  GRANTED;  and  this  claim  hereby  is  dismissed  without  prejudice  to  its  refiling \npursuant to the deadlines prescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and \nCommission Rule 099.13. \n \n     This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n     If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n     IT IS SO ORDERED. \n                                                            \n____________________________                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5518,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207568 JIMMY MARTINEZ, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYSON POULTRY, INC./ TYNET CORP. CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED AUGUST 16, 2023","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:03:59.245Z"},{"id":"alj-H207267-2023-08-16","awccNumber":"H207267","decisionDate":"2023-08-16","decisionYear":2023,"opinionType":"alj","claimantName":"Cecily Williams","employerName":"Custom Craft Poultry, LLC","title":"WILLIAMS VS. CUSTOM CRAFT POULTRY, LLC AWCC# H207267 AUGUST 16, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILLIAMS_CECILY_H207267_20230816.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILLIAMS_CECILY_H207267_20230816.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207267 \n \nCECILY WILLIAMS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nCUSTOM CRAFT POULTRY, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nOHIO SECURITY INS. CO./ \nLIBERTY MUTUAL GROUP \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE  \nFILED AUGUST 16, 2023 \n \nHearing conducted on Tuesday, August 14, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Ms. Cecily Williams, pro se, of Little Rock, Pulaski County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Jason Ryburn, Ryburn Law Firm, Little \nRock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Tuesday, August 14, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Replacement). \n The respondents filed a motion to dismiss (MTD) without prejudice with the Commission \non  or  about  June  5,  2023,  requesting  this  claim  be  dismissed  without  prejudice  for  lack  of \nprosecution. Consistent with the applicable Arkansas law, the Commission mailed a copy of both \nthe  respondents’  motion  to  dismiss  and  the  subject  hearing  notice  via  the  United  States  Postal \nService (USPS), Certified Mail, Return Receipt Requested by letter dated July 14, 2023, to her last \nknown address of record with the Commission. Thereafter, the claimant failed and/or refused to \n\nCecily Williams, AWCC No.: H207267 \n \n2 \n \nrespond in any way to either the Commission or the respondents; and she failed and/or refused to \nappear at the subject hearing. The claimant never objected in any way to the respondents’ MTD. \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the parties’ joint \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing and contained in the record conclusively demonstrates the \nclaimant  has  both  failed  and/or  refused  to  prosecute  her  claim,  nor  has  she  requested  a  hearing \nwithin the last six (6) months. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After the Commission mailed due and legal notice of the respondents’ MTD filed \n                  June 5, 2023, to her last known address of record with the Commission, the claimant  \n                  failed and/or refused to object to the subject MTD; to request a hearing; or to \n                  respond to the motion in any way.  \n \n            3.         Moreover, the claimant failed and/or refused to appear at \n                  the subject hearing and, therefore, has waived her right to a hearing. \n \n 4. Therefore, the respondents’ MTD without prejudice filed June 5, 2023, should be \n                  and hereby is GRANTED. \n      \n      5.         Consequently, this claim is dismissed without prejudice to its refiling pursuant to \n                  the deadlines prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission \n\nCecily Williams, AWCC No.: H207267 \n \n3 \n \n                  Rule 099.13. \n \n This opinion and order shall not be construed to  prohibit the  claimant, her attorney,  any \nattorney she may retain in the future, or anyone acting legally and on her behalf from refiling this \nclaim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The respondents shall pay the court reporter’s invoice within ten (10) days of their receipt \nthereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5156,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207267 CECILY WILLIAMS, EMPLOYEE CLAIMANT CUSTOM CRAFT POULTRY, LLC, EMPLOYER RESPONDENT OHIO SECURITY INS. CO./ LIBERTY MUTUAL GROUP INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED AUGUST 16, 2023 Hearing conducted on...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:04:01.311Z"},{"id":"alj-G509436-2023-08-15","awccNumber":"G509436","decisionDate":"2023-08-15","decisionYear":2023,"opinionType":"alj","claimantName":"Gerline Charles","employerName":"University Of Arkansas For Medical Sciences (uams)","title":"CHARLES VS. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES (UAMS) AWCC# G509436 AUGUST 15, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CHARLES_GERLINE_G509436_20230815.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CHARLES_GERLINE_G509436_20230815.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: G509436 \nGERLINE CHARLES,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nUNIVERSITY OF ARKANSAS FOR MEDICAL \nSCIENCES (UAMS), EMPLOYER                                                        RESPONDENT NO. 1   \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/THIRD PARTY ADMINSTRATOR (TPA)                       RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL DISABILTY TRUST  \nFUND                                                                                                         RESPONDENT NO. 1 \n \n \n         OPINION FILED AUGUST 15, 2023      \n        \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Little Rock, \nPulaski County, Arkansas. \n \nClaimant appeared pro se/unrepresented. \n \nRespondents No. 1 represented by the Honorable Charles H. McLemore, Attorney at Law, Little \nRock, Arkansas. \n \nRespondent No. 2 represented by the Honorable Christy L. King, Attorney at Law, Little Rock, \nArkansas.  Ms. King waived her appearance at the hearing.   \n \n \nStatement of the Case \nOn  May  17,  2023,  the  above-captioned  claim  came  on  for  a  hearing in  Little  Rock, \nArkansas.  A pre-hearing telephone conference was conducted on March 29, 2023, from which a \nPre-hearing Order was filed that same day.  A copy of this order and the parties’ responsive filings \nhave been marked as Commission’s Exhibit 1 and made a part of the record without objection. \nStipulations \nDuring the pre-hearing telephone conference, and/or during the hearing the parties agreed \nto the following stipulations: \n\nCharles-H509436 \n \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n \n2. That  on  or  about  June  9,  2010  the  Claimant  sustained  a  compensable “medical \nonly” lumbar spine injury.  (Tr. 9) \n \n3. That  the  Claimant's  average  weekly  wage  (AWW)  on  the  date  of  her  accidental \ninjury was $684.07, with weekly corresponding compensation rates of $456.00 for \ntemporary total disability (TTD) compensation and $342.00 for permanent partial \ndisability (PPD) benefits, respectively. \n4. Respondents No. 1 have controverted this claim for additional medical benefits.  \n5. All   issues   not   litigated   herein   are   reserved under  the  Arkansas  Workers’ \nCompensation Act. \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether this claim is barred by the statute of limitations.  \n2. Whether the Claimant is entitled to additional medical treatment for her back injury. \nContentions \n The respective contentions of the parties are as follows: \nClaimant:  The  Claimant  contends  that  on  June  9,  2010  she  was  injured  while  returning \nsterile  instrument  cases  to  the  storage  shelves  for  the  One-Day  Surgery  Department.    Claimant \ncontends that when she reached to place an ACL tray on the shelf, she caught a kink across her \nlower back and right buttock.  She was unable to move until the spasm released.  The Claimant is \nrequesting to be reinstated and reimbursed for medical bills that she paid and additional ongoing \nmedical treatment for her low back.    \nRespondents No. 1: \nRespondents No. 1 contend that the Claimant reported having an injury to her back on June \n25, 2009, which Respondents No. 1 accepted as medical only, providing initial treatment, and the \n\nCharles-H509436 \n \n3 \n \nClaimant did not miss sufficient work to be entitled to temporary disability benefits.  The last visit \nRespondents No. 1 are  aware of was September 22, 2009 for this date of injury.  The Claimant \nreported having a lumbar injury on June 9, 2010 which was accepted by the Respondents No. 1 as \nmedical only and medical benefits have been paid to or on behalf of the Claimant by Respondents \nNo. I on this claim.  Medical treatment has been conservative, Claimant treated sporadically, and \nthe  last  visit  Respondents  No.  l  are  aware  of  was  February  5,  2018.    After  the  Claimant's \nemployment with Respondents No. 1 ended April 8, 2011, the Claimant  collected unemployment \nbenefits, then admittedly found new employment elsewhere where she worked without restriction \nuntil her employment ended there as well. \n               The Claimant filed a form AR-C on December 18, 2015 claiming initial and additional \nbenefits for an injury to her low back and right buttock occurring June 25, 2009, but did not request \na hearing for any benefits. The Claimant indicated in a March 30, 2020 email to the Commission  \nthat  she  desired  a  hearing  on  this  claim,  but  did  not  pursue  a  hearing  for  any  benefits,  so \nRespondents  No.  1  filed  its  Motion  to  Dismiss  for  Want  of  Prosecution  on  December  20,  2021\nwhich the Claimant objected to. The Claimant demanded a hearing, but at the Claimant's request, \nno  hearing  was  set,  and  the  file  returned  to  the  Commission's  general  files  May  24,  2022.\nRespondents No. 1 again filed a motion to dismiss the Claimant's claim for lack of prosecution on \nJanuary 11, 2023, which Claimant has objected to. \nRespondents  No.  1  contend  that  the  Claimant  cannot  meet  her  burden  of  proving  that \nshe timely filed a claim for benefits, as the statute of limitations now bars the Claimant from \npursuing benefits on her claim(s).  Respondents No. 1 further contend that the Claimant cannot \nmeet  her  burden  of  proving  that  she  is  entitled  to  additional  medical  treatment  related  to  a \ncompensable  injury  occurring  either  June  25,  2009  or  June  9,  2010.  The  Claimant  cannot \n\nCharles-H509436 \n \n4 \n \nestablish  that  she  is  in  or  has  been  in  a  healing  period  and  entitled  to  TTD  benefits  for  a \ncompensable  injury(ies).    Respondents  No.  1  contend  that  the  Claimant  cannot  be  entitled  to \nTTD benefits for time periods she was admittedly working, or receiving unemployment benefits \npursuant to Ark. Code Ann. §11-9-506, furthermore, the Claimant cannot establish she was in \na healing period and unable to work when she admittedly did work.  \nRespondents No. 1 reserve the right to raise additional contentions, or to modify those \nstated herein, pending the completion of discovery \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear the testimony of the witness and observe her demeanor, I hereby make the following findings \nof fact and conclusions of law in accordance with Ark. Code Ann. §11-9-704: \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.      I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.     This claim for additional medical benefits for the Claimant’s low back injury, which  \noccurred June 9, 2010 is barred by the statute of limitations under Ark. Code Ann. \n§11-9-702  (b)  (1)  because  she  failed  to  timely  file  a  claim  for  additional  medical \nbenefits by March 25, 2019, and there is no document of record that can be relied on \nto support a finding that it contains the specific language required by section 11-9-\n702 (c). \n               \n          4.         Therefore, the remaining issue relating to additional medical treatment has been  \n                      rendered moot and not discussed in this Opinion.     \n            \nSummary of Evidence \nDuring the hearing, the only witness to testify was Ms. Gerline Charles/the Claimant.  \n            The  record  consists  of  the  May  17,  2023  hearing  transcript  and  the  following  exhibits: \nSpecifically, Commission’s Exhibit No. 1 includes the Commission’s Prehearing Order filed on \n\nCharles-H509436 \n \n5 \n \nMarch  29,  2023 and  the  parties’ responsive  filings; Claimant’s  Exhibit 1  consists  of  Medical \nRecords with Index, which is made up of fifty-one pages; and Respondents No. 1, Exhibit 1 is a \nMedical Evidence with Index, which comprises eighty numbered pages; and they also offered into \nevidence a second exhibit of  Documentary Evidence with Index consisting of eighty pages, which \nhas been marked as Exhibit 2. \n                                                  Testimony \n  \n The  Claimant,  age  65,  began  working  for  UAMS  in  1990.    She  initially  worked  as  a \nsterilization processing technician.  In this position, the Claimant’s employment duties included \nbut  was  not  limited  to  the  handling  and  processing  of  surgical  instruments.    She  specifically \ntestified  that  she  was  responsible  for  the  cleaning  and  decontaminating  heavy  trays  of  surgical \ninstruments.  The Claimant also set the instruments up  that were to be used by the doctors who \nperformed surgical procedures.   \nOn June 9, 2010, the Claimant’s job title was Core Technician.  According to the Claimant, \nin that position, she worked back and forth between sterilization processing and one-day surgery \narea.    The  Claimant  verified  that  she  injured  her  back  on  June  9,  2010,  while  performing  her \nemployment duties.  She confirmed that the respondent-carrier accepted her low back injury as a \nmedical only claim.  \nShe gave the following description of her back injury of June 9, 2010: \nQ When you sustained an injury to your back.  Briefly, what happened?  \n \nA I was – We have to put instruments back on the – back on the shelves once \nthe cases have been sterilized and processed, and I had a ACL tray, which it was \ngetting close to time  -- well, it was closing  -- and I was cleaning up - - \nI  picked  up  the  ACL  tray,  which  weighs  about  anywhere  from  40  to  50 \npounds. \n                                                       \n  ***** \n\nCharles-H509436 \n \n6 \n \nAnd when I reached to pick it up, when I got ready to turn to put it on the \nshelf, I caught a real back kink in my back, my right hip, and it went down my leg, \nand I  -- and it stayed there for a while.  And then I kind of eased -- Finally it let go. \nAnd  I  didn’t  think  a  lot  about  because,  you  know,  I  had  hurted  myself \nseveral times before but I didn’t realize how badly I had injured my back.    \n       \n The Claimant verified that she reported her injury to management.  She testified that she \nreceived medical treatment for her back injury at the Spine Center in the form of physical therapy \nand medications.  The Claimant also treated at OrthoArkansas under the care of Dr. Steven Paulus.  \nAccording to the Claimant, she underwent steroid injections to her back, which was performed by \nDr. Paulus, and he prescribed more medications.   \n As of the date of the hearing, the Claimant was not working.  She confirmed that she last \nworked for UAMS in 2011.  According to the Claimant, she was fired due to tardiness.  Although \nthe Claimant maintained that she last received treatment for her back in 2023, she was unable to \nprovide a medical record or any other evidence of record demonstrating that she received treatment \nfor her back during this period of time.   \n The Claimant initially maintained that she filed a Form AR-C with the Commission for her \nJune  2010  back  injury,  which  had  been  made  part  of  the  evidentiary  record.    However,  the \nClaimant finally admitted that her filing of a claim for additional benefits in this matter was made \nwhen she filed her prehearing questionnaire documents in 2023.  She verified that she made this \nfiling on February 17, 2023.  \n On  cross-examination,  the  Claimant  verified  that  her  deposition  was  taken  on  May  11, \n2022.  She  admitted that no doctor has  ever recommended surgery for her back.   The Claimant \nessentially admitted that she previously injured her back on June 25, 2009.  She admitted that she \ngave her employer/UAMS notice of her June 2009 back injury, and they provided her with medical \ntreatment for her injury.   \n\nCharles-H509436 \n \n7 \n \nThe Claimant verified that she injured her back again in 2010, while lifting a heavy tray of \nACL surgical instruments.  According to the Claimant, the tray consisted of instruments used for \nreconstruction  of  a  knee,  including  tools  such  as  wire  cutters,  wire  pliers,  wrenches,  and  drills.  \nThe Claimant admitted that she injured her back while removing instrument trays from a cart.  She \nadmitted that she reported her most recent back injury of June 9, 2010, to her supervisor and signed \nan Employee Notice of Injury Form.  This document was signed by the Claimant on June 22, 2010. \nThe Claimant admitted that she had extensive conservative treatment for her back.  However, she \nconfirmed that no surgery has been recommended for her back injury of June 2010.  According to \nthe Claimant, she has been on a new “pill” for her back since the beginning of June, but it has \nmade her jittery, and caused her “head to swim” and incontinence.  The Claimant testified that she \nis unable to take narcotic pain medications such  as Hydrocodone.  She further testified that she \nlearned this years ago when she had her gallbladder removed.   \nUnder  further  questioning,  the  Claimant  maintained  that  she  was  fired  because  she  had \nbeen taking Tylenol and Gabapentin for her back all day and night, and these medications caused \nher  to  be  late  for  work.    As  a  result,  she  had  some  disciplinary  problems  with  tardiness  while \nworking  for  UAMS.  She  also  admitted  that  she  had  problems  with  excessive  alcohol  use.  \nHowever, the Claimant denied drinking while at work.  She admitted that after leaving UAMS in \n2011, a few months later she went to work at St. Vincent’s and worked there for about two years. \nRegarding her medical treatment for her back since February 2018, the Claimant testified \nthat they have done some injections on her own.  She also takes over-the-counter medications for \nher back. \nOn  further  redirect-examination,  the  Claimant  confirmed  that  the  respondent-carrier  last \npaid for medical treatment in 2018 due to her 2010 back injury.  She further confirmed that the \n\nCharles-H509436 \n \n8 \n \nlast time they actually paid on her 2010 back injury would have been for her February 5, 2018, \ndoctor’s visit. \n              Documentary Evidence \nA review of the Pay Log Report for the Claimant’s June 9, 2010 back injury shows that her \nlast  medical  visit  was  with  OrthoArkansas  on  February  5,  2018.    Further  review  of  the  payout \nreport for the Claimant’s 2010 back injury was paid for by the respondent-carrier via checks issued \non March 25, 2018, in the amounts of $89.00 and $66.60.                       \n                                     Adjudication \nStatute of Limitations \nAlthough  the  Claimant  previously  sustained  an  admittedly  compensable  “medical  only” \ninjury to her low back on June 25, 2009 while working for UAMS, this prior injury, is not at issue \nat this time.   \nCurrently, this claim for additional benefits pertains exclusively to the Claimant’s second \nadmittedly compensable low back injury, which occurred on June 9, 2010. Since this is a claim for \nadditional  benefits,  the  crucial  issue  for  determination  is  whether  the  Claimant  filed  a  timely \nrequest for additional medical benefits for her June 2010 back injury.  \nTherefore,  Arkansas  law  limits  the  time  in  which  a  claim  for  additional workers’ \ncompensation  benefits  may  be  filed.    The  proper  statute  of  limitations  is  set  forth  in  Ark.  Code \nAnn. §11-9-702 (b) (1), (c): \n(b)  TIME FOR FILING ADDITONAL COMPENSATION: \n(1)  In cases in which any compensation, including disability or medical has  \n                 been paid on account of injury, a claim for additional compensation shall \n                 be barred unless filed with the commission within one (1) year from the  \n                 date of the last payment of compensation or two (2) years from the date of \n\nCharles-H509436 \n \n9 \n \n                 the injury, whichever is greater. \n          (c)  A claim for additional compensation must specifically state that it is a claim \n                for additional compensation.  Documents which do not specifically request  \n                additional benefits shall not be considered a claim for additional compensation.   \n                    \nOur supreme court stated that a Claimant must prove that he or she acted with the time allowed for \nfiling a claim for additional compensation.  White Cnty.  Judge v. Menser, 2020 Ark. 140, at 8, \n597 S.W. 3d at 645.    \n  Here,  on  June  9,  2010,  the  Claimant  worked  for  UAMS  in  the  One-Day  Surgery \nDepartment,  as  a  Core  Technician.    Her  employment  duties  included  both  sterilizing  surgical \ninstruments and setting them up for surgical procedures.  It is undisputed that on June 9, 2010, the \nClaimant  injured  her  back  while  lifting  a  tray  of  instruments.    The  Claimant  testified  that  she \ncaught a “kink” in her back and hip during this lifting incident.  She promptly reported her injury \nto management.  The parties stipulated that the respondent-carrier accepted this as a medical only \nclaim  for  the  Claimant’s low back injury of June 2010. Both the Claimant’s testimony and the \ndocumentary evidence show that the insurance-carrier has paid for extensive conservative medical \ntreatment for the Claimant’s low back injury.  The Claimant last received medical treatment for \nher back on February 5, 2018.  The carrier issued a check on March 25, 2018.  She confirmed that \nshe did not make a claim for additional medical benefits until the filing of her responsive filings, \nwhich was done on February 17, 2023.    \n The time limitation for filing a claim for additional benefits is set out above in Ark. Code \nAnn.  §11-9-702  (b)(1).  Per  this  section,  a  claim  for  additional  benefits  shall  be  barred  unless  a \nClaimant  files  a  claim  for  additional  compensation  within  one  (1)  year  from  the  date  of  last \npayment of compensation or two (2) years from the date of the injury, whichever is greater.  Two \nyears from the date of injury would be June 9, 2012.  One year from the last payment of benefits \n\nCharles-H509436 \n \n10 \n \nwould be by March 25, 2019.  Because the one-year date is greater, the Claimant was required to \nfile  a  claim  for  additional  benefits  by  March  25,  2019  which  is  one  year  from  the  date  of  last \npayment of compensation.  \n Here, this claim for additional benefits is barred by the statute of limitations set forth above \nbecause there is nothing in the record demonstrating that the Claimant ever filed a document that \ncontains the specific language required by Ark. Code Ann. §11-9-702  that would suffice to support \na finding that she made a request for “additional” benefits to be considered a claim for additional \nbenefits.  Moreover, the Claimant admitted that she did not assert a claim for additional medical \ntreatment until February  17, 2023, which was when she filed of her responsive pleadings. Even \nthis filing is beyond the one year from the date of last payment of compensation, which occurred \non March 25, 2019.  \n Based  on  the  foregoing,  I  find  that  this  claim  is  barred  by  the  statute  of  limitations. \nTherefore,  the  remaining  issue  relating  to  additional  medical  treatment  has  been  rendered  moot \nand not discussed in this Opinion.     \nOrder \n Based on the the forgoing findings of fact, unfortunately this claim is barred by the \nstatute of limitations set forth in section 11-9-702.  Therefore, this claim for additional benefits is \nhereby respectfully denied and dismissed.    \n      IT IS SO ORDERED. \n \n \n            ______________________________ \n            HON. CHANDRA L. BLACK \n                  ADMINISTRATIVE LAW JUDGE \n \n \n \n\nCharles-H509436 \n \n11","textLength":20115,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: G509436 GERLINE CHARLES, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES (UAMS), EMPLOYER RESPONDENT NO. 1 PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILTY TRUST FUND R...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["lumbar","back","hip","knee"],"fetchedAt":"2026-05-19T23:03:52.878Z"},{"id":"alj-H206300-2023-08-15","awccNumber":"H206300","decisionDate":"2023-08-15","decisionYear":2023,"opinionType":"alj","claimantName":"Bridgette Mitchell","employerName":"Fedex Ground Package System, Inc","title":"MITCHELL VS. FEDEX GROUND PACKAGE SYSTEM, INC. AWCC# H206300 AUGUST 15, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MITCHELL_BRIDGETTE_H206300_20230815.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MITCHELL_BRIDGETTE_H206300_20230815.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H206300 \n \nBRIDGETTE MITCHELL, EMPLOYEE  CLAIMANT \n \nFEDEX GROUND PACKAGE SYSTEM, INC., \nEMPLOYER/SELF INSURED                                                                    RESPONDENT  \n \nSEDGWICK CLAIMS MANAGEMENT, \nTHIRD PARTY ADMINISTRATOR                                                           RESPONDENT  \n \n \nOPINION FILED AUGUST 15, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  August 15,  2023,  in  Little \nRock, Pulaski County, Arkansas. \n \nClaimant is representing herself, Pro Se, Little Rock, Arkansas. \n \nThe Respondents were represented by Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  was  scheduled  for  a  Motion  to  Dismiss  today,  August 15,  2023. \nClaimant did not appear for the the hearing. Notices were sent to Claimant certified return \nreceipt requested and regular first class mail. The Claimant did not sign for the certified \nletter. However, the first class letter containing the same hearing notice was not returned.  \nI  opened  the  hearing  at  10:10am, 10  minutes  after  the  motion  hearing  was \nscheduled to begin. All parties were given written notice of this hearing.  I have entered \ninto evidence the Commission’s file by reference.  \n The evidence reflects that Claimant’s injury occurred on August 24, 2022, where \nshe purportedly injured her tail bone, pelvis, lower back, right side, and other whole body. \nThis  incident  allegedly  occurred  when  Claimant  was  attempting  to  put  a package on  a \n\nMITCHELL H206300 \n \n \n2 \ntruck for delivery when she fell through a gap situated between the dock and the delivery \ntruck. This is a totally controverted claim.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction over  this \nclaim. \n2. All parties received reasonable and timely notice of the full-hearing that was later \nconverted  to  a  Motion  to  Dismiss  hearing  under  AWCC  R.  099.13,  due  to \nClaimant’s failure to appear at the full-hearing. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \n\nMITCHELL H206300 \n \n \n3 \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven  reasonable  notice,  at  the  addresses  provided  by  each  party,  for  the Motion  to \nDismiss hearing under Rule 13. I further find that Claimant has abridged this rule. Thus I \nfind Respondent’s Motion to Dismiss should be granted without prejudice. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4771,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206300 BRIDGETTE MITCHELL, EMPLOYEE CLAIMANT FEDEX GROUND PACKAGE SYSTEM, INC., EMPLOYER/SELF INSURED RESPONDENT SEDGWICK CLAIMS MANAGEMENT, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 15, 2023 Hearing before Administrative Law Judge Steven P...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:03:54.998Z"},{"id":"alj-H300022-2023-08-14","awccNumber":"H300022","decisionDate":"2023-08-14","decisionYear":2023,"opinionType":"alj","claimantName":"Yalonda Gardener","employerName":"Rivercliff Co., Inc","title":"GARDENER VS. RIVERCLIFF CO., INC. AWCC# H300022 AUGUST 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GARDENER_YALONDA_H300022_20230814.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GARDENER_YALONDA_H300022_20230814.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H300022 \n \n \nYALONDA GARDNER, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nRIVERCLIFF CO., INC.,   \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nBRIDGEFIELD CASUALTY INSURANCE COMPANY,  \nINSURANCE CARRIER                                                                                        RESPONDENT \n  \nSUMMIT CONSULTING, LLC, \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED AUGUST 14, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, failed to appear at the hearing.  \n \nRespondents  represented  by  the  Honorable  Jason  M.  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on August 9, 2023 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004), for a determination of whether \nthe above-referenced matter should be dismissed for failure to prosecute under the provisions of \nArk. Code Ann. §11-9-702 (Repl. 2012) and Arkansas Workers’ Compensation Commission Rule \n099.13.  \nAppropriate Notice of this hearing was attempted on all parties to their last known address, \nin the manner prescribed by law.   \n\nGardner – H300022 \n \n2 \n \nThe  record  consists  of  the  transcript  of  the  August  9,  2023,  hearing  and  the  documents \ncontained therein. Additionally, the entire Commission’s file has been made a part of the record.  \nIt is hereby incorporated herein by reference.    \n                                                                  Discussion \n On January 3, 2023, the Claimant filed with the Commission a claim for Arkansas workers’ \ncompensation  benefits  by  way  of  a  Form  AR-C.    The  Claimant  alleged  that  she  sustained \ncompensable  injuries  on  October  17,  2022,  while  her  performing  employment  duties  for  the \nrespondent-employer.  The Claimant asked for both initial and additional workers’ compensation \nbenefits.  In fact, the Claimant checked all the boxes for every conceivable benefit under the law \nin connection with this claim. \n The  claims  adjuster  sent  a  letter  to  the  Commission  on  January  5,  2023, stating,  “In \nresponse  to  the  Form  AR-C  filed  in  this  matter,  the  Respondents  have  accepted  the  claim  as \nMedical only as no lost time from work.”  Additionally, the respondent-insurance carrier filed a \nForm AR-2 with the Commission on January 24, 2023, accepting this as a compensable medical \nonly claim for injuries to the Claimant’s lower legs.    \n On February 1, 2023, the Respondents’ attorney entered an appearance via correspondent \nto the Commission.  Counsel offered his full cooperation on behalf of his client and invited the \nClaimant or his representative to contact him to resolve any issues that could be resolved without \na hearing.     \n  However,  there  was  no  action  taken  by  the  Claimant  to  resolve  her  claim,  nor  did  the \nClaimant file a request for a hearing.  Therefore, the Respondents filed a Motion to Dismiss with \nthe Commission on June 6, 2023.  This pleading was accompanied by a certificate of service to \n\nGardner – H300022 \n \n3 \n \nthe Claimant.  Specifically, the Respondents mailed a copy of this document to the Claimant via \nthe United States Postal Service.  \nThe Commission sent a letter-notice to the Claimant by mailing it to her last known address \nwith the Commission on June 8, 2023.  Said letter was sent by first-class and certified mail.  Per \nthis  correspondence,  the  Claimant  was  given  a  deadline  of  twenty  days,  for  filing  a  written \nresponse to the Respondents’ motion for dismissal. \nThus far, there has been no response from the Claimant.   \nHowever, the United States Postal Service informed the Commission on June 8, 2023, that \nthey were unable to locate any delivery information on this item,  \nTherefore, pursuant to a Hearing Notice dated July 7, 2023, the Commission notified the \nparties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim due \nto  a  lack  of  prosecution.    The  notice  was  sent  to  the  Claimant  via  first-class  and  certified  mail.  \nSaid hearing was scheduled for August 9, 2023, at the Commission in Little Rock, Arkansas.  \nThe  Hearing  Notice  mailed  to  the  Claimant  via  certified  mail  was  delivered  to  the \nClaimant’s home on July 10, 2023.  However, the identity of the individual taking delivery of this \nitem is unclear because the recipient’s signature as it appears on the return receipt is illegible.   \nStill, there was no reply from the Claimant.  \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Claimant failed to appear at the dismissal hearing.  However, the Respondents \nappeared through their attorney.   \nCounsel  noted  that  the  Claimant  has  failed  to  timely  prosecute  her claim  for  workers’ \ncompensation  benefits  since  the  filing  of  the  Form  AR-C  in  January  2023.    Therefore,  counsel \nmoved  that  this  claim  be  dismissed  under  Ark.  Code  Ann.  §11-9-702  and Arkansas  Workers’ \n\nGardner – H300022 \n \n4 \n \nCompensation Commission Rule 099.13, without prejudice due to a lack of prosecution of the case \nby the Claimant. \nThe record before me proves that the Claimant has failed to timely prosecute her claim for \nworkers’ compensation benefits.  The Claimant has not requested a hearing since the filing of the \nForm AR-C.  She failed to appear at the hearing to object to her claim being dismissed and she has \nnot responded to the notices of this Commission.  Under these circumstances, I am compelled to \nfind that the evidence preponderates that the Claimant has failed to promptly prosecute her claim \nin the manner set forth under the law.  Therefore, per Ark. Code Ann. §11-9-702 and Rule 099.13 \nof this Commission, I find that this claim should be and is hereby respectfully dismissed, without \nprejudice to the refiling of it with the limitation period specified by law.   \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission, a motion for dismissal of this \nclaim due to a lack of prosecution, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since the filing of the Form AR-\nC,   which   was   done   over   eight   months   ago.   Hence,   the   evidence \npreponderates  that  the  Claimant  has  failed  to  prosecute  her  claim  for \nworkers’ compensation benefits.      \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby granted, without prejudice, pursuant to Arkansas Code Ann. §11-9-\n702 and Commission Rule 099.13, to the refiling of it within the limitation \nperiod specified by law.  \n \n \n\nGardner – H300022 \n \n5 \n \nORDER \nIn accordance with the findings of fact and conclusions of law set forth above, this claim \nis   hereby   dismissed   pursuant   to   Arkansas   Code   Ann.   11-9-702   and   Arkansas Workers’ \nCompensation  Commission  Rule  099.13, without  prejudice,  to  the  refiling  of it,  within  the \nlimitation period specified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":8216,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H300022 YALONDA GARDNER, EMPLOYEE CLAIMANT RIVERCLIFF CO., INC., EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT SUMMIT CONSULTING, LLC, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 14, 2023 Hearing hel...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:03:50.803Z"},{"id":"alj-H208936-2023-08-10","awccNumber":"H208936","decisionDate":"2023-08-10","decisionYear":2023,"opinionType":"alj","claimantName":"Ralph Johnson","employerName":"Thompson Constr. Grp., Inc","title":"JOHNSON VS. THOMPSON CONSTR. GRP., INC. AWCC# H208936 AUGUST 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Johnson_Ralph_H208936_20230810.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Johnson_Ralph_H208936_20230810.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H208936 \n \n \nRALPH JOHNSON, EMPLOYEE CLAIMANT \n \nTHOMPSON CONSTR. GRP., INC. \n EMPLOYER RESPONDENT \n \nZURICH AMER. INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 10, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  August  10, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Ms.  Carol  Lockard  Worley,  Attorney  at  Law,  Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on  the Motion to Dismiss filed \nby Respondents.  A hearing on the motion was conducted on August 10, 2023, in \nLittle  Rock,  Arkansas.   Claimant,  who  is pro se,  failed to  appear.  Respondents \nwere represented at the hearing by Ms. Carol Lockard Worley, Attorney at Law, \nof  Little  Rock,  Arkansas.    The  record  consists  of  Respondents’  Exhibit  1, \npleadings,  forms  and  correspondence  related  to  the  claim,  consisting  of  one \nindex page and nine numbered pages thereafter.  In addition,  without objection, \nthe Commission’s file has been incorporated herein in its entirety by reference. \n The evidence reflects that  per the First Report of Injury or Illness filed on \nDecember  23,  2022,  Claimant  purportedly  injured  h  is  neck  on  December 16, \n\nJOHNSON – H208936 \n \n2 \n2022, when  he was  riding  a  UTV  at  work  and  struck  some  iron  beams.  \nAccording to the Form AR-2 that was filed on December 30, 2022, Respondents \ndenied the claim due to an alleged lack of objective findings. \n On  December  28,  2022,  Claimant  (through  then-counsel  Jim  R.  Burton) \nfiled  a  Form  AR-C,  requesting  various  initial  benefits.    No  hearing  request \naccompanied the filing.   In an email to the Operations & Compliance Division of \nthe  Commission  on  January  4,  2023,  Respondents  reiterated  that  they  were \ncontroverting  the  claim  on  the  basis  cited  above.    Their  attorney  entered  her \nappearance before the Commission on January 5, 2023. \n The  record  further  reflects  that  on  May  1,  2023,  Respondents  filed  the \ninstant  Motion  to  Dismiss.    Therein,  they  argued  that  dismissal  was  warranted \nunder AWCC R. 099.13 because “Claimant has not sought any type of bona fide \nhearing  before  the  Workers’  Compensation  Commission  .  .  .  nor  has  he \ncooperated in discovery efforts regarding his claim.”  On May 19, 2023, my office \nwrote Mr. Burton, asking for a response to the motion within twenty (20) days.  A \ncopy  was  sent  to  Claimant  at  the  address  listed  for  him  in  his  Forms AR-1  and \nAR-C; however, it was returned to the Commission, unclaimed, on May 31, 2023. \n However,  Mr.  Burton  by  this  point  had  already  filed  with  the  Clerk  of  the \nCommission a Motion to Withdraw from the case.  Therein, he stated that he “has \nmade several attempts to contact claimant with no response” therefrom.  On May \n23,  2023,  the  Full  Commission  granted  the  Motion  to  Withdraw  under  AWCC \nAdvisory  2003-2.    Upon  learning  of  this,  my  office  re-sent  the  20-day  letter to \n\nJOHNSON – H208936 \n \n3 \nClaimant, now pro se, on June 13, 2023.  This correspondence was sent by first-\nclass  and  certified mail  to  the  same  address  as  before.    The  certified  letter  was \nreturned  to  the  Commission,  unclaimed,  on  June  26,  2023;  however  the  first-\nclass  letter  was  not  returned.  Nonetheless,  no  response  was  forthcoming  from \nhim. \n On  July 11,  2023,  a  hearing on  the  Motion  to  Dismiss  was  scheduled  for \nAugust 10, 2023, at 9:30 a.m. at the Commission in Little Rock.  The notice was \nsent  to  Claimant  by  first-class  mail  to  the  same  address  as  before.    The letter \nwas returned; the envelope bears the handwritten notations “MY SON NOT ME” \nand “Return  to  Sender.”  Again,  this  was  the  only  address  furnished  to  the \nCommission in connection with this claim. \n The hearing on the Motion to Dismiss proceeded as scheduled on August \n10, 2023.  Again, Claimant failed to appear.  But Respondents appeared through \ncounsel  and  argued  for  dismissal  of  the  action  under  Rule  13  along  with  Ark. \nCode Ann. § 11-9-702(a)(4) (Repl. 2012). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n\nJOHNSON – H208936 \n \n4 \n2.  The parties  were  provided  reasonable  notice  of  the Motion  to \nDismiss and of the hearing thereon. \n3.  Respondents have proven by a preponderance of the evidence that \nthis claim should be dismissed under AWCC R. 099.13. \n4.  The Motion to Dismiss is hereby granted. \n5.  This claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  (Emphasis added)  In turn, Ark. Code Ann. § 11-9-702(a)(4) (Repl. 2012) \nreads: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  compensation \nno  bona  fide  request  for  a  hearing has  been  made  with  respect to \nthe  claim,  the  claim  may,  upon  motion  and  after  hearing, be \ndismissed  without  prejudice  to  the  refiling  of  the  claim  within \nlimitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must prove \nby  a  preponderance  of  the  evidence  that  dismissal  should  be  granted.    The \nstandard  “preponderance  of  the  evidence”  means  the  evidence  having greater \nweight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n\nJOHNSON – H208936 \n \n5 \n The  evidence  shows  that  (1)  the  parties  were  provided  with  reasonable \nnotice  of  the  Motion  to  Dismiss  and  the  hearing  thereon,  and  (2)  Claimant  has \ntaken  no  action  in  pursuit  of  his  claim  since  the  filing  of  his  Form  AR-C  on \nDecember 28,  2022.    Thus,  the  evidence  preponderates  that  dismissal  is \nwarranted  under  Rule  13.  This  motion  is  hereby  granted  under  that  provision.  \nBecause  of  this  finding,  the  status  of  the  claim  under  § 11-9-702(a)(4)  is  moot \nand will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer  Co.,  2005  AR Wrk.  Comp. \nLEXIS  5  10,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”  (Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v.  Strong, \n75 Ark. 249, 629 S.W.2d 284 (1982)).  At the hearing, Respondents requested a \ndismissal with prejudice.  But based on the foregoing, I find that the dismissal of \nthis claim should be and hereby is entered without prejudice.\n1\n \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nJOHNSON – H208936 \n \n6 \nCONCLUSION \n In accordance with the Findings of Fact and Conclusions of Law set forth \nabove, the Motion to Dismiss is hereby granted.  This claim is hereby dismissed \nwithout prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":8325,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H208936 RALPH JOHNSON, EMPLOYEE CLAIMANT THOMPSON CONSTR. GRP., INC. EMPLOYER RESPONDENT ZURICH AMER. INS. CO., CARRIER RESPONDENT OPINION FILED AUGUST 10, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on August 10, 2023, in Little Rock...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:3"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T23:03:48.669Z"},{"id":"full_commission-H103080-2023-08-09","awccNumber":"H103080","decisionDate":"2023-08-09","decisionYear":2023,"opinionType":"full_commission","claimantName":"Jimmy Foster","employerName":"Booneville Human Development Center","title":"FOSTER VS. BOONEVILLE HUMAN DEVELOPMENT CENTER AWCC# H103080 AUGUST 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Foster_Jimmy_H103080_20230809.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Foster_Jimmy_H103080_20230809.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H103080 \n \nJIMMY FOSTER, \nEMPLOYEE \n \nCLAIMANT \nBOONEVILLE HUMAN DEVELOPMENT \nCENTER, EMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED AUGUST 9, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE JARID M. KINDER, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed in part, reversed in part. \n \n \n OPINION AND ORDER \nThe claimant appeals and the respondents cross-appeal an \nadministrative law judge’s opinion filed February 9, 2023.  The \nadministrative law judge found that the claimant failed to prove his \ncardiovascular and right ulnar neuropathic conditions were compensable.  \nThe administrative law judge found that the claimant proved he was entitled \nto a period of temporary total disability benefits.  After reviewing the entire \nrecord de novo, the Full Commission finds that the claimant proved the \ndiagnosis of atrial fibrillation was a natural consequence of the \ncompensable COVID-19 condition sustained by the claimant.  We find that \n\nFOSTER - H103080  2\n  \n \n \nthe claimant did not prove the right ulnar neuropathic condition was a \nnatural consequence of the compensable injury.  The Full Commission finds \nthat the claimant did not prove he was entitled to additional temporary total \ndisability benefits.  The Full Commission finds that the claimant proved he \nsustained 10% permanent anatomical impairment as a result of the \ndiagnosis of atrial fibrillation.     \nI.  HISTORY \n Jimmy Glenn Foster, Sr., now age 68, testified that he had formerly \nbeen employed with the respondents, Booneville Human Development \nCenter.  The claimant testified on direct examination: \n  Q.  And what does BHDC do? \nA.  They take care of clients that is not able to take care of \ntheir self.  They feed them.  They take care of them.  They \nteach them how to work and they just work with clients that is \nnot privileged to be at home. \nQ.  What did you do for them? \nA.  I done the same thing.  I bathed them.  I shaved them.  I \nbrushed their teeth.  I made their beds.  We fed them.  We \nwashed their clothes.  We dried them and stuff like that.... \nQ.  Was your job at Booneville Health, was that a physical \njob? \nA.  Yes, sir....The physical part where we would strip the \nclient’s bed, remake them ourselves, mop and sweep the \nfloors, clean the toilets.  We would take their clothes down to \nlaundry and wash and dry them and fold them and put them \naway.  And make sure that they had food to eat at the time of \nfood and we would brush their teeth and shave them.... \nQ.  Now, out of an eight-hour workday, how much of that \nwould you spend on your feet working? \nA.  Pretty much the whole eight hours constantly being busy.   \n \n\nFOSTER - H103080  3\n  \n \n \n The parties stipulated that the employee-employer-carrier \nrelationship existed on July 31, 2020, and that the claimant “sustained a \ncompensable injury” on that date.  The claimant testified on direct \nexamination: \n  Q.  When did you contract COVID-19? \nA.  I want to say it was August.  That’s when I got tested and I \ntested positive at the facility.  And then we came to Fort Smith \nand done another testing under a big tent and they also tested \npositive.   \nQ.  How did you contract it? \nA.  COVID-19 had hit our facility through staff at first and then \nit spread to the clients.  And we had one client that – when I \ncame on duty that morning, we had one client that was \nquarantined and he had COVID and I had to take care of \nhim.... \nQ.  When did you start noticing symptoms? \nA.  About probably the last week in July and the first week in \nAugust.  I started losing my breath and feeling really bad.   \n \n According to the record, the claimant received emergency medical \ntreatment on August 8, 2020:  “Jimmy G. Foster, a 65 y.o. male presents to \nthe ED with a Chief Complaint of Shortness of Breath....65-year-old white \nmale with a history of seasonal rhinitis transferred from Waldron for COVID \npneumonia after he had been sick for approximately 8 days.”  The clinical \ndiagnoses were “Pneumonia due to COVID-19 virus (Primary)” and “Morbid \nobesity with BMI of 70 and over, adult.”   \n Dr. Monali Hanmant Patil reported on September 9, 2020: \nJimmy G. Foster is a 65 y. o. male admitted 8/8/2020 with \ncomplaints of shortness of breath.  Patient works [at] human \ndevelopment center in Booneville.  Patient had an exposure to \n\nFOSTER - H103080  4\n  \n \n \nCOVID patient couple 2 weeks ago.  Patient started having \nsymptoms about 8 to 9 days ago.  Patient tested positive for \nCOVID.  Symptoms started were getting worse with hypoxia \ncough low-grade fevers.  Patient presented to the ED.  He \nwas noted to be hypoxic.  He was initially started on BiPAP.  \nPatient was not tolerant of BiPAP he was switched to high \nflow nasal cannula.   \n \n Dr. Michael Morse prepared a Nerve Conduction & \nElectromyography Report on December 10, 2020, with the following \nconclusion:  “There is a moderately severe right median nerve entrapment \nat the wrist consistent with a clinical diagnosis of carpal tunnel syndrome.  \nThere is a mild nonlocalizing ulnar neuropathy.  EMG shows no active or \nchronic denervation.” \n Dr. Keith Bolyard noted on January 15, 2021: \nThe patient is 66 years old.  We are asked to see him via \nWorkers’ Compensation for his right shoulder.  He is \nstruggling through post-COVID hospitalization.... \nHe reports a normal right shoulder prior to COVID.  His \ncomplaints are that of a snapping of the right scapula and pain \nand weakness of the shoulder.   \nHe has been diagnosed with possible right cubital tunnel \nsyndrome, possible right carpal tunnel syndrome.  Though his \nsymptoms of carpal tunnel were not related today, numbness \nof the ulnar nerve distribution fingers was part of the symptom \ncomplex as well.... \nPHYSICAL EXAMINATION:  He has internal rotation almost \nequal on the right shoulder as he does the left.  He does have \na palpable snap at the inferior angle of the scapula with \ncertain range of motions.... \nX-RAY STUDIES:  X-rays today, 3 views of the right shoulder \nshow a large inferior humeral head osteophyte.... \nIMPRESSION:  1.  Right glenohumeral joint arthritis with \nstiffness. \n2.  Snapping scapula syndrome right.   \n\nFOSTER - H103080  5\n  \n \n \n \n Dr. Bolyard planned, “I think the scapula is probably more consistent \nwith a dyskinesis.  We will have him continue with home physical therapy \nthat he can do on his own checking with the physical therapist every couple \nof weeks, working on range of motion and strengthening....I tried to make it \nclear that his snapping scapula would not be a surgical intervention, but is \nprobably more related to muscle imbalance....No surgical intervention is \nplanned or contemplated.”     \n The claimant began treating with Dr. Julio F. Schwarz on February 1, \n2021: \n66-year-old white male who has been diagnosed as having \nparoxysmal atrial fibrillation.  Patient does not experience \nspecific symptoms with recurrence of atrial fibrillation.  He \ndoes complain of dyspnea on mild to moderate exertion, \nmoderate to severe in intensity, subsiding within 3 minutes \npost exercise cessation.  Patient describes no other \nassociated symptoms.  The only means to avoid such is to \nprevent this level of physical activity.... \nASSESSMENT AND RECOMMENDATIONS:   \n1.  Dyspnea on exertion. \n2.  Paroxysmal atrial fibrillation. \n3.  Essential hypertension. \n4.  Family history of heart disease. \n5.  Subarachnoid hemorrhage in August, 2020, of uncertain \netiology, residual right hemiparesis. \n6.  Overweight. \n7.  Residual right hemiparesis, ambulates with a walker.   \n \n Rhonda Murphy, Assistant Claims Determination Manager, \ncorresponded with the claimant on March 31, 2021: \n\nFOSTER - H103080  6\n  \n \n \nPublic Employee Claims Division (PECD) administers the \nworkers compensation benefits for AR Human Development \nCenter – Booneville. \nYour claim has been accepted as compensable based on \nyour positive COVID-19 medical status.  PECD will be \nresponsible for the authorized necessary and reasonable \nmedical treatment associated with this illness (if indicated).   \nThe total disability rate is based upon sixty-six and two-thirds \n(66 2/3%) of your average weekly wage at the time the \nexposure (sic).  Based on the wage information we have \nreceived, you will be entitled to receive TTD compensation in \nthe amount of $329.00 per week.  TTD compensation is \nbased on a seven day week. \nIt is my understanding that you received Director’s Leave pay \nthrough 1/8/2021.  A State Warrant for compensation benefits \nin the amount $3,948.00 representing payment for the period \nof 1/9/2021 through 4/2/2021 has been ordered.  You should \nreceive the warrant in the next seven to ten business days.... \nTemporary Total Disability (TTD) compensation will continue \nto be paid to you on a bi-weekly basis until you receive the \nrelease letter from AR Department of Health and return back \nto work.... \n \n A Human Resources Specialist informed the claimant on August 16, \n2021, “You are due for your five-year background checks.  Please fill out \nthe attached forms and bring back to Human Resources by Friday, \nSeptember 10, 2021 along with your driver’s license or photo ID.” \n An Assistant Personnel Manager corresponded with the claimant on \nOctober 25, 2021 and stated in part, “Your Background Checks with our \nfacility are currently out of date and in violation of Office of Long-Term Care \nregulations.  Please return the requested Background Check forms and \nupdated medical information by November 2, 2021 to prevent us from \nproceeding with termination.”     \n\nFOSTER - H103080  7\n  \n \n \nThe respondent-employer’s Director of Residential Services \ncorresponded with the claimant on November 30, 2021:  “This letter is to \ninform you that your employment with the Arkansas Department of Human \nServices is terminated effective November 30, 2021....Your resignation has \nbeen coded ‘Involuntary’ based on an internal investigation.” \nThe claimant testified on direct: \n Q.  Were you terminated from this position? \n A.  Yes, sir, I was. \nQ.  What was your understanding of why you were \nterminated? \nA.  From what I understand, refusing to go have an FBI \nbackground check because I wasn’t released from the doctor \nat that time. \nQ.  Did you go have the FBI background check done? \nA.  No, sir. \nQ.  Why did you not? \nA.  Because I was still under doctor’s care and wasn’t \nreleased to go back to work.   \n \n The claimant participated in a Functional Capacity Evaluation at \nFunctional Testing Centers, Inc. on April 26, 2022:  “Mr. Foster completed \nfunctional testing on this date with unreliable results....Overall, Mr. Foster \ndemonstrated the ability to perform work in at least the SEDENTARY \nclassification of work[.]”   \n In addition, an “IMPAIRMENT EVALUATION SUMMARY – Lower \nExtremity” was prepared at Functional Testing Centers, Inc. on April 26, \n2022: \n\nFOSTER - H103080  8\n  \n \n \nMr. Foster reports that he contracted COIVD-19 (sic) at work \nand was hospitalized with acute respiratory failure and had \nsubsequent placement on a ventilator.  He later had onset of \nskin breakdown in his Coccyx area with an open wound. \nDiagnosis:  Long term COVID 19 syndrome....Mr. Foster’s \nprimary complaint is shortness of breath with strenuous \nactivity.  He reports additional areas of pain that include:  right \nshoulder, low back and coccyx.  He also reports chest pain.   \nCo-morbidities include:  Hypertension.... \nWhen utilizing the Guides Table 8 (p. 162):  Classes of \nRespiratory Impairments:  Mr. Foster does have a class 2 \n(mild) impairment with a 10% Whole Person Impairment.   \n \n The claimant’s testimony indicated that he did not receive temporary \ntotal disability benefits after May 6, 2022.   \nRhonda Murphy corresponded with the claimant on May 17, 2022: \nWe have received a report from Rick Byrd indicating you have \nreached maximum medical benefit as of 4/26/2022. \nMr. Byrd also stated you have a 10% Permanent Partial \nImpairment for a mild ventilatory defect.  This impairment \nrating entitles you to 45 weeks of PPD benefits at the weekly \nrate of $247.00 for a total of $11,115.00.  PPD benefits are \npaid bi-weekly, and your first PPD payment will cover the \ndates 5/7/22 through 5/20/22.  You should receive this check \nin the next few days.  The PPD benefits will pay out on March \n17, 2023.... \n \n Dr. Sara L. Roberson reported on June 17, 2022:   \nJimmy G. Foster 10/16/1954 is a patient of mine at the family \nmedicine clinic in Waldron.  I have been this patient’s primary \ncare provider since 2014.  He is requesting this letter \nstatement concerning his ability to work.  This patient was \nhospitalized with severe COVID-pneumonia, he has had \ndeterioration in his health that has included diastolic heart \nfailure, pulmonary hypertension, paroxysmal A. fib and \nrespiratory failure.  He has had a great deal of trouble \nregaining his prior level of functioning.  I do not believe the \n\nFOSTER - H103080  9\n  \n \n \npatient will be able to return to work and should strongly \nconsider retirement at this time.   \n \n Dr. Terry Clark examined the claimant on September 26, 2022: \nJimmy’s primary problem is COVID.  The problem began on \n7/31/2020.  Additional History:  Pt contracted COVID while at \nwork.  He has had many complications from it.  He is here to \nreview FCE and IR results.   \nHe apparently contracted Covid-19 at work and had an \nextremely complicated course which included respiratory \nfailure, a small right-sided subarachnoid hemorrhage, a \ncoccygeal decubitus, atrial fibrillation and right ulnar nerve \nneuropathy.   \nHe had an FCE on 4/26/2022 which showed multiple \ninconsistencies and sub-maximal effort.  He is here today to \nreview those reports.  He is currently being treated for \npneumonia by his PCP, unrelated to the Covid.... \nMMI has been reached as of today’s date.  Agree with the \nimpairment rating of 10% whole person.  Due to \ninconsistencies on the FCE I am unable to determine work \nrestrictions.... \nMEDICAL CAUSATION \nThe cause of this problem is related to work activities.   \nRECOMMENDED WORK STATUS \nJimmy’s recommended work status is Regular Duty.  The \neffective date for this work status is 9/26/2022.   \n \n Dr. Clark diagnosed “1.  Acute respiratory failure with hypoxia.  2.  \nOther nontraumatic subarachnoid hemorrhage.  3.  Pressure ulcer of sacral \nregion, stage 4.”   \nA pre-hearing order was filed on October 6, 2022.  According to the \ntext of the pre-hearing order, the claimant contended, “1.  The claimant, \nJimmy Foster, sustained compensable injuries following a COVID-19 injury \non August 6, 2020 while working for Booneville Development Center in \n\nFOSTER - H103080  10\n  \n \n \nBooneville, Arkansas.  Said injuries, include, but are not limited to:  a \nrespiratory disorder, sacral wound, paroxysmal atrial fibrillation, dyspnea on \nexertion, essential hypertension, hypertensive heart disease, left ventricular \ndiastolic dysfunction, pulmonary hypertension, left ventricular dilation, trivial \nnonrheumatic mitral insufficiency trivial nonrheumatic tricuspid insufficiency, \na subarachnoid hemorrhage, and hemiparesis.  2.  Sara L. Roberson has \ntaken the claimant off work indefinitely due to his severe COVID-pneumonia \nand subsequent deterioration of health.  3.  To date, the claimant has only \nbeen released as at maximum medical improvement for his sacral wound \non September 27, 2021 and his lungs (mild ventilatory defect) [on] April 26, \n2022.  He remains in his healing period and has not been returned to work \nand thus contends he is owed temporary total disability benefits from May \n17, 2022 through a date yet to be determined.  4.  Due to the controversion \nof entitled benefits, the respondents are obligated to pay one half of the \nclaimant’s attorney’s fees.  5.  Claimant reserves the right to raise additional \ncontentions at the hearing of this matter.”   \n The respondents contended that “the claimant reported on August 5, \n2020 that he tested positive for COVID, with his last day at work being July \n31, 2020.  Respondent did accept this claim as compensable pursuant to \nArk. Code Ann. §11-9-601 (effective from March 11, 2020 and until May 1, \n2023) and respondent has provided benefits to or on behalf of the claimant \n\nFOSTER - H103080  11\n  \n \n \nfor this claim.  Respondent has provided reasonable and necessary medical \ntreatment for the claimant, including treatment with Dr. Terry Clark, Dr. \nDelilah Easom for wound care and Dr. Julio Schwarz, cardiac specialist.  \nThe claimant tested unreliably in the Sedentary classification of work at a \nFunctional Capacity Evaluation on April 26, 2022 with 13 of 53 consistency \nmeasures.  The claimant was paid his salary by his employer until January \n8, 2021 at which point the claimant was paid temporary total disability \nbenefits by the respondent from January 9, 2021 until May 6, 2022 when \nthe claimant was released at maximum medical improvement by his treating \nphysician, Dr. Terry Clark.  The claimant was assigned permanent \nanatomical impairment of 10% to the whole person which has been \naccepted by respondent and permanent partial disability benefits are being \npaid to the claimant for this impairment rating.  The claimant would not \nreturn to work and would not complete his mandatory background checks \nfor his job.  The claimant’s employment ended November 30, 2021.  The \nrespondents reserve the right to raise additional contentions, or to modify \nthose stated herein, pending the completion of discovery.”   \n The parties agreed to litigate the following issues: \n1.  Whether claimant is entitled to temporary total disability \nbenefits. \n2. Attorney’s fee.   \n \n\nFOSTER - H103080  12\n  \n \n \n After a hearing, an administrative law judge filed an opinion on \nFebruary 9, 2023.  The administrative law judge found that the claimant \nfailed to prove his “heart disease” and “right ulnar neuropathy” were \ncompensable conditions.  The administrative law judge found that the \nclaimant was entitled to a period of additional temporary total disability \nbenefits.  The claimant appeals to the Full Commission and the \nrespondents cross-appeal.   \nII.  ADJUDICATION \nA.   Natural Consequence \n1.   Atrial Fibrillation \nWhen the primary injury is shown to have arisen out of and in the \ncourse of employment, the employer is responsible for any natural \nconsequence that flows from that injury.  Nichols v. Omaha Sch. Dist., 2010 \nArk. App. 194, 374 S.W.3d 148.  The basic test is whether there is a causal \nconnection between the injury and the consequences of such.  Id.  The \nburden is on the employee to establish the necessary causal connection.  \nId.  Whether there is a causal connection is a question of fact for the \nCommission.  Jeter v. B.R. McGinty Mechanical, 62 Ark. App. 53, 968 \nS.W.2d 645 (1998).   \nAn administrative law judge found in the present matter, “2.  \nClaimant has failed to prove by a preponderance of the evidence that his \n\nFOSTER - H103080  13\n  \n \n \nheart disease was the result of his compensable illness from COVID-19.”  It \nis the Full Commission’s duty to enter findings in accordance with the \npreponderance of the evidence and not on whether there is substantial \nevidence to support the administrative law judge’s findings.  Roberts v. Leo \nLevi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  Preponderance of \nthe evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  The Full Commission enters its own findings in \naccordance with the preponderance of the evidence.  Tyson Foods, Inc. v. \nWatkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).   \nThe Full Commission finds in the present matter that the claimant’s \natrial fibrillation and associated diagnoses were a natural consequence of \nthe compensable injury.  The claimant was employed for several years with \nthe respondents, Booneville Human Development Center.  The evidence \ndoes not demonstrate that the claimant had been treated for atrial fibrillation \nprior to the compensable injury.  The parties stipulated that the claimant \nsustained a compensable injury on July 31, 2020.  The claimant testified \nthat he contracted COVID-19 while performing employment services for the \nrespondents.  The claimant was indeed clinically diagnosed with \n“Pneumonia due to COVID-19 virus (Primary)” on August 8, 2020.   \n\nFOSTER - H103080  14\n  \n \n \nThe claimant received emergency treatment and extended in-patient \nresidential treatment as a result of contracting COVID-19 in the \nrespondents’ workplace.  Dr. Schwarz, a cardiologist, diagnosed \n“Paroxysmal atrial fibrillation” on February 1, 2021.  The Full Commission \nagain notes from the record that the claimant had not been diagnosed with \natrial fibrillation prior to contracting COVID-19 in the workplace.  Dr. \nRoberson reported on June 17, 2022, “This patient was hospitalized with \nsevere COVID-pneumonia, he has had deterioration in his health that has \nincluded diastolic heart failure, pulmonary hypertension, paroxysmal A. fib \nand respiratory failure [emphasis supplied].”  The Commission is authorized \nto accept or reject medical opinions, and our resolution of the medical \nevidence has the force and effect of a jury verdict.  Estridge v. Waste \nManagement, 343 Ark. 276, 33 S.W.3d 167 (2000).  The Full Commission \nin the present matter accepts Dr. Roberson’s June 17, 2022 report as \nmedical evidence demonstrating that the claimant’s diastolic heart failure \nand atrial fibrillation were natural consequences of the compensable \nCOVID-19 condition suffered by the claimant.  Dr. Roberson’s causation \nopinion is further supported by Dr. Clark’s report on September 26, 2022, \n“He apparently contracted Covid-19 at work and had an extremely \ncomplicated course which included respiratory failure, a small right-sided \n\nFOSTER - H103080  15\n  \n \n \nsubarachnoid hemorrhage, a coccygeal decubitus, atrial fibrillation and right \nulnar nerve neuropathy [emphasis supplied].”   \nThe Full Commission finds that the claimant proved the diagnosis of \natrial fibrillation was a natural consequence of the compensable COVID-19 \ncondition sustained by the claimant in the workplace.  We therefore find that \nthe treatment of record for same was reasonably necessary in accordance \nwith Ark. Code Ann. §11-9-508(a)(Repl. 2012).     \n2.   Right Ulnar Neuropathy \nAn administrative law judge found, “3.  Claimant has failed to prove \nby a preponderance of the evidence that his right ulnar nerve neuropathy \nwas the result of his compensable illness from COVID-19.”  The Full \nCommission affirms this finding.  As we have discussed, the parties \nstipulated that the claimant sustained COVID-19 in the respondents’ \nworkplace on or about July 31, 2020.  The record indicates that the claimant \nsubsequently received an extensive course of inpatient residential \ntreatment.  Dr. Morse performed electrodiagnostic testing on December 10, \n2020 and concluded, “There is a moderately severe right median nerve \nentrapment at the wrist consistent with a clinical diagnosis of carpal tunnel \nsyndrome.”  It is within the Commission’s province to weigh all of the \nmedical evidence and to determine what is most credible.  Minnesota \nMining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present \n\nFOSTER - H103080  16\n  \n \n \nmatter, there is no probative evidence demonstrating that Dr. Morse’s \ndiagnosis of carpal tunnel syndrome was causally related to the claimant’s \nCOVID-19 condition.  Nor did Dr. Morse opine that the clinical diagnosis of \nright carpal tunnel syndrome was causally related to COVID-19 contracted \nby the claimant.   \nDr. Bolyard noted on January 15, 2021 that the claimant reported a \n“snapping of the right scapula and pain and weakness of the shoulder.”  Dr. \nBolyard’s impression was “1.  Right glenohumeral joint arthritis with \nstiffness.  2.  Snapping scapula syndrome, right....I think the scapula is \nprobably more consistent with a dyskinesis....No surgical intervention is \nplanned or contemplated.”  The evidence does not demonstrate that \nglenohumeral joint arthritis, snapping scapula syndrome, or dyskinesis were \nin any way causally related to the compensable COVID-19 illness suffered \nby the claimant.  Nor is there any probative evidence demonstrating that the \nclaimant sustained right ulnar neuropathy as a result of treatment provided \nat any time on or after July 31, 2020.  The Full Commission therefore \naffirms the administrative law judge’s finding that the claimant did not prove \n“his right ulnar neuropathy was the result of his compensable illness from \nCOVID-19.”  The claimant did not prove by a preponderance of the \nevidence that the diagnosed condition of right ulnar neuropathy was a \nnatural consequence of the compensable injury.  Treatment for right ulnar \n\nFOSTER - H103080  17\n  \n \n \nneuropathy was not reasonably necessary in accordance with Ark. Code \nAnn. §11-9-508(a)(Repl. 2012).     \nB.   Temporary Disability \nTemporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \nHwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing \nperiod” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \ncontinues until the employee is as far restored as the permanent character \nof the injury will permit, and if the underlying condition causing the disability \nhas become stable and nothing further in the way of treatment will improve \nthat condition, the healing period has ended.  Harvest Foods v. Washam, \n52 Ark. App. 72, 914 S.W.2d 776 (1996).  The determination of when the \nhealing period has ended is a question of fact for the Commission.  Carroll \nGen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996). \nAn administrative law judge found in the present matter, “4.  \nClaimant has met his burden of proving that he is entitled to temporary total \ndisability benefits from May 7, 2022 through September 26, 2022.”  The Full \nCommission does not affirm this finding.  The parties stipulated that the \nclaimant sustained a compensable injury on or about July 31, 2020.  The \ncompensable injury sustained by the claimant was COVID-19, contracted \n\nFOSTER - H103080  18\n  \n \n \nby the claimant in the workplace.  The claimant testified that he did not work \nfor the respondents after approximately July 31, 2020.  Correspondence \nfrom an Assistant Claims Determination Manager indicated that the \nclaimant received “Director’s Leave pay” through January 8, 2021.  The \nrecord indicates that the claimant was paid temporary total disability \nbenefits for the period beginning January 9, 2021 and continuing through at \nleast April 2, 2021.  On August 16, 2021, a Human Resources Specialist \nasked the claimant to complete a series of background checks in order to \ncontinue his employment with the respondents.  The claimant testified that \nhe did not comply with this request, “Because I was still under doctor’s care \nand wasn’t released to go back to work.”  The respondents therefore \nterminated the claimant’s employment effective November 30, 2021.   \nThe claimant participated in a Functional Capacity Evaluation on \nApril 26, 2022:  “Mr. Foster completed functional testing on this date with \nunreliable results....Overall, Mr. Foster demonstrated the ability to perform \nwork in at least the SEDENTARY classification of work[.]”  An \n“IMPAIRMENT EVALUATION SUMMARY” prepared on April 26, 2022 \nindicated, “When utilizing the Guides Table 8 (p. 162):  Classes of \nRespiratory Impairments:  Mr. Foster does have a class 2 (mild) impairment \nwith a 10% Whole Person Impairment.”  The claimant testified that he did \nnot receive temporary total disability benefits after May 6, 2022.  The \n\nFOSTER - H103080  19\n  \n \n \nrespondent-carrier informed the claimant on May 17, 2022 that it accepted \n“a 10% Permanent Partial Impairment for a mild ventilatory defect.”     \nThe claimant contends on appeal that he is entitled to temporary \ntotal disability benefits from May 7, 2022 through September 26, 2022.  The \nFull Commission finds that the claimant did not prove he remained within a \nhealing period or was totally incapacitated from earning wages at any time \nafter April 26, 2022.  We note that the claimant was assigned a permanent \nanatomical impairment on April 26, 2022.  Permanent impairment is any \nfunctional or anatomical loss remaining after the healing period has been \nreached.  Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 \n(1994).  Temporary total disability cannot be awarded after the healing \nperiod has ended.  Elk Roofing Co. v. Pinson, 22 Ark. App. 191, 737 \nS.W.2d 661 (1987).   \nThe evidence does not demonstrate that the claimant remained \nwithin a healing period or re-entered a healing period at any time after April \n26, 2022.  We recognize Dr. Roberson’s note on June 17, 2022, “I do not \nbelieve the patient will be able to return to work and should strongly \nconsider retirement at this time.”  The Full Commission finds that Dr. \nRoberson’s June 17, 2022 report was describing a permanent condition and \ncannot reasonably be interpreted as evidence demonstrating that the \nclaimant remained within a healing period related to the compensable \n\nFOSTER - H103080  20\n  \n \n \ninjury.  We also recognize Dr. Clark’s conclusion on September 26, 2022, \n“MMI has been reached as of today’s date.”  The Commission has the \nauthority to accept or reject a medical opinion and the authority to \ndetermine its medical soundness and probative force.  Green Bay \nPackaging v. Bartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999).  In the \npresent matter, the Full Commission places minimal evidentiary weight on \nDr. Clark’s conclusion that “MMI has been reached” as of September 26, \n2022.  The record instead demonstrates that the claimant was as far \nrestored as the permanent character  of his injury would permit no later than \nApril 26, 2022.  See Harvest Foods, supra.  The evidence does not \ndemonstrate that the claimant remained within a healing period or re-\nentered a healing period at any time after April 26, 2022.  The claimant \ntherefore did not prove that he was entitled to additional temporary total \ndisability benefits.         \nC.  Permanent Impairment \nFinally, permanent impairment is any functional or anatomical loss \nremaining after the healing period has been reached.  Johnson, supra.  The \nCommission has adopted the American Medical Association Guides to the \nEvaluation of Permanent Impairment (4\nth\n ed. 1993) to be used in assessing \nanatomical impairment.  See Commission Rule 34; Ark. Code Ann. §11-9-\n522(g)(Repl. 2012).  It is the Commission’s duty, using the Guides, to \n\nFOSTER - H103080  21\n  \n \n \ndetermine whether the claimant has proved he is entitled to a permanent \nanatomical impairment.  Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d \n904 (2001). \nAny determination of the existence or extent of physical impairment \nshall be supported by objective and measurable physical findings.  Ark. \nCode Ann. §11-9-704(c)(1)(Repl. 2012).  Objective findings are those \nfindings which cannot come under the voluntary control of the patient.  Ark. \nCode Ann. §11-9-102(16)(A)(i)(Repl. 2012).  Although it is true that the \nlegislature has required medical evidence supported by objective findings to \nestablish a compensable injury, it does not follow that such evidence is \nrequired to establish each and every element of compensability.  Stephens \nTruck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997).  All that \nis required is that the medical evidence be supported by objective medical \nfindings.  Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 \n(2006).  Medical opinions addressing impairment must be stated within a \nreasonable degree of medical certainty.  Ark. Code Ann. §11-9-\n102(16)(B)(Repl. 2012). \nPermanent benefits shall be awarded only upon a determination that \nthe compensable injury was the major cause of the disability or impairment.  \nArk. Code Ann. §11-9-102(F)(ii)(a)(Repl. 2012).  “Major cause” means \n“more than fifty percent (50%) of the cause,” and a finding of major cause \n\nFOSTER - H103080  22\n  \n \n \nmust be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(Repl. 2012). \nIn the present matter, the Full Commission finds that the claimant \nproved that he is entitled to a 10% permanent anatomical impairment \nrelated to his compensable atrial fibrillation.  The Full Commission has \ndetermined that the atrial fibrillation diagnosed by Dr. Schwarz was a \nnatural consequence of the compensable injury sustained by the claimant \non or about July 31, 2020.  Dr. Schwarz reported on April 4, 2022 that his \ndiagnosis included “1.  Paroxysmal atrial fibrillation.”  Dr. Schwarz noted \nthat an echocardiogram showed “Ejection Fraction:  60%.”  Dr. Schwarz \nreported that the claimant displayed “2.  Dyspnea on exertion.”   \nThe 4\nth\n Edition of the Guides, p. 6/195, Table 12, Class 2, provides \nfor a “10-29% impairment of the whole person.”  The Full Commission finds \nthat the claimant proved he sustained permanent anatomical impairment in \nthe amount of 10% as a result of the compensable atrial fibrillation \nsustained by the claimant.  The record indicates that the claimant “is \nasymptomatic during daily activities.\"  The surveillance evidence before the \nCommission demonstrates that the claimant is able to perform daily \nactivities such as drive a vehicle, shop, and occasionally preach and lead \nmusic at his local church.  A cardiac arrhythmia was documented by ECG \nas reported by Dr. Schwartz.  In addition, the claimant’s treating physicians \n\nFOSTER - H103080  23\n  \n \n \nhave recommended a dietary adjustment and have prescribed the use of \ndrugs to treat the compensable atrial fibrillation.   \nWith regard to atrial fibrillation, which was a natural consequence of \nthe compensable injury, the Full Commission finds that the claimant proved \nby a preponderance of the evidence that he sustained a 10% permanent \nanatomical impairment in accordance with the 4\nth\n Edition of the Guides, p. \n6/195, Table 12, Class 2.  The existence of 10% permanent anatomical \nimpairment is supported by objective medical findings confirmed on \ndiagnostic testing as reported by Dr. Schwarz.  The claimant also proved \nthat the compensable injury was the major cause of the 10% permanent \nanatomical impairment resulting from atrial fibrillation.   \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved the diagnosis of atrial fibrillation was a natural \nconsequence of the compensable COVID-19 condition sustained by the \nclaimant.  We find that the claimant did not prove the right ulnar neuropathic \ncondition was a natural consequence of the compensable injury.  The Full \nCommission finds that the claimant did not prove he was entitled to \nadditional temporary total disability benefits.  We find that the claimant \nproved he sustained 10% permanent anatomical impairment as a result of \nthe diagnosis of atrial fibrillation.  Said 10% permanent anatomical \n\nFOSTER - H103080  24\n  \n \n \nimpairment is in addition to the 10% rating accepted and paid by the \nrespondents with regard to respiratory impairment.   \nThe Full Commission denies the respondents’ motion to strike the \nclaimant’s appeal brief.  We advise the parties that, in performing a \nstatutory de novo review, the Full Commission has considered solely and \nexclusively the testimony and evidence submitted to the administrative law \njudge on December 6, 2022.  We have not relied on or considered any “new \nevidence” cited in the claimant’s briefs on appeal.  The claimant’s attorney \nis entitled to fees for legal services in accordance with Ark. Code Ann. §11-\n9-715(a)(Repl. 2012).  For prevailing in part on appeal, the claimant’s \nattorney is entitled to an additional fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \nIT IS SO ORDERED.     \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n\nFOSTER - H103080  25\n  \n \n \nI must respectfully dissent from the Majority’s determination that the \nclaimant’s atrial fibrillation is a compensable consequence of the claimant’s \ncompensable July 31, 2020 COVID-19 infection. \nWhat constitutes a compensable, or natural, consequence under the \nAct is well settled.  Arkansas Code Annotated § 11-9-508(a) requires an \nemployer to provide an injured employee such medical services as may be \nreasonably necessary in connection with the injury received by the \nemployee.  As highlighted by the Majority, when the primary injury is shown \nto have arisen out of and in the course of employment, the employer is \nresponsible for any natural consequence that flows from that injury.  Nichols \nv. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nHowever, for this rule to apply, the basic test is whether there is a causal \nconnection between the injury and its alleged consequences. Id.  The \nburden is on the employee to establish the necessary causal connection. Id. \nWhether a causal connection exists between two episodes is a question of \nfact for the Commission.  Jeter v. B.R. McGinty Mech., 62 Ark. App. 53, 968 \nS.W.2d 645 (1998). \nWhile it is the Commission’s duty use its expertise to determine the \nsoundness of medical evidence and to translate it into findings of fact and \nhas authority to accept or reject a medical opinion and to determine its \nmedical soundness and probative force, “[s]peculation and conjecture \n\nFOSTER - H103080  26\n  \n \n \ncannot substitute for credible evidence.”  Hamilton v. Gregory Trucking, 90 \nArk. App. 248, 205 S.W.3d 181 (2005); Smith-Blair, Inc. v. Jones, 77 Ark. \nApp. 273, 72 S.W.3d 560 (2002); Oak Grove Lumber Co. v. Highfill, 62 Ark. \nApp. 42, 968 S.W.2d 637 (1998).    \n On February 1, 2021, Dr. Julio Schwartz, a cardiologist with Mercy \nClinic Cardiology, determined that the claimant suffered from atrial \nfibrillation.  (Resp. Ex. 1, P. 56).  A year later, on February 15, 2022, FNP \nGayla Johnson recommended a 72-hour Holter monitor to assess \nclaimant’s cardiac rate and rhythm, stating that the claimant “does have a \nhistory of atrial fibrillation and he is not on an anticoagulation.” (Cl. Ex. 1, P. \n83).  At that time, the claimant presented with atrial fibrillation, “hypertensive \nheart disease, pulmonary hypertension, left ventricular diastolic dysfunction, \nleft atrial dilation, [and] mitral and tricuspid regurgitation;” however, his \ncondition was stable. Id.  Claimant once again presented to Dr. Schwartz on \nMarch 28, 2022.  (Cl. Ex. 1, P. 92).  Dr. Schwartz reported that the claimant \nhas a family history of heart disease\n1\n. Id.  Neither FNP Johnson nor Dr. \nSchwartz, both cardiac specialists, attributed the claimant’s heart \ncomplaints to his COVID-19 infection.  Dr. Schwartz, the only cardiologist \nwho treated the claimant, did not assess a permanent impairment rating for \n \n1\n As noted by the ALJ in his December 2022 opinion, there is an additional entry \nfrom Dr. Schwartz dated April 1, 2022.  It is unclear from the record whether the \nclaimant attended two visits with Dr. Schwartz. \n\nFOSTER - H103080  27\n  \n \n \nthe claimant’s atrial fibrillation and stated in his report dated February 1, \n2021 that the “[p]atient does not experience specific symptoms with \nrecurrence of atrial fibrillation.” Id.  Based on the findings of Dr. Schwartz, \nthe claimant is not entitled to a permanent impairment rating for his atrial \nfibrillation even if it is determined for the purposes of argument it is a \ncompensable consequence of his work-related injury. \nThe majority has based its finding that the claimant’s atrial fibrillation \nis related to his work injury on the reports of claimant’s family practitioner, \nDr. Sara Roberson, and an occupational medicine specialist, Terry Clark, \nrather than the treating cardiologist.  Neither Dr. Roberson nor Dr. Clark \never stated within a reasonable degree of medical certainty as required by \nour Act that the claimant’s atrial fibrillation was the result of his work-related \ninjury.  “[A] compensable injury must be established by medical evidence \nsupported by objective findings.  Medical opinions addressing \ncompensability must be stated within a reasonable degree of medical \ncertainty.”  Ark. Code Ann. § 11-9-102(16)(B); Smith-Blair, Inc. v. Jones, 77 \nArk. App. 273, 72 S.W.3d 560 (2002).  Again, “[s]peculation and conjecture \ncannot substitute for credible evidence.” Id.  In fact, Drs. Roberson and \nClark merely noted in their reports that the claimant had atrial fibrillation \nwithout stating the condition was related to or caused by his COVID-19 \ndiagnosis. \n\nFOSTER - H103080  28\n  \n \n \nNot one physician who has treated the claimant has stated within a \nreasonable degree of medical certainty that the claimant’s atrial fibrillation is \nrelated to or is the result of his compensable injury or that he sustained any \npermanent impairment as a result of his atrial fibrillation.  Speculation and \nconjecture cannot substitute for credible evidence.  There is no credible \nevidence that the claimant’s atrial fibrillation is work related or that this \ncondition has caused any permanent impairment.  To find otherwise is \nspeculation and conjecture by the Commission. \nFor the reasons stated above, I respectfully dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":42179,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H103080 JIMMY FOSTER, EMPLOYEE CLAIMANT BOONEVILLE HUMAN DEVELOPMENT CENTER, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED AUGUST 9, 2023","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["wrist","carpal tunnel","shoulder","back"],"fetchedAt":"2026-05-19T22:29:46.173Z"},{"id":"alj-H203138-2023-08-09","awccNumber":"H203138","decisionDate":"2023-08-09","decisionYear":2023,"opinionType":"alj","claimantName":"Joyce Bailey-Williams","employerName":"Tyson Poultry, Inc","title":"BAILEY-WILLIAMS VS. TYSON POULTRY, INC. AWCC# H203138 AUGUST 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BAILEY-WILLIAMS_JOYCE_H203138_20230809.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAILEY-WILLIAMS_JOYCE_H203138_20230809.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H203138 \n \nJOYCE BAILEY-WILLIAMS, EMPLOYEE      CLAIMANT \n \nTYSON POULTRY, INC. EMPLOYER                RESPONDENT  \n \nTYSON POULTRY/TYNET CORP., CARRIER/TPA                    RESPONDENTS \n \n \nOPINION FILED 9 AUGUST 2023 \n \nHearing  before  Administrative  Law  Judge JayO.  Howe in Little  Rock,  Pulaski \nCounty, Arkansas, on 9 August 2023. \n \nMr.  Kenneth  A.  Olsen,  Attorney-at-Law,  of  Bryant represents  the  claimant,  who \nwaived appearance. \n \nMr. J. Matthew Mauldin, Attorney-at-Law, of Little Rock, appeared on behalf of the \nrespondents. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on 9  August 2023, in Little  Rock, \nArkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode Annotated § 11-9-702 and/or Rule 099.13 of the Arkansas Workers’ Compensation Act.  \nThe claim involves an alleged workplace injury occurring on or about December 14, 2021. An \nemployer/employee relationship existed at the time. A First Report of Injury was filed on 25 \nApril 2022. A Form AR-C was filed on 15 September 2022. \n The respondents filed their first Motion to Dismiss for want of prosecution on 10 July \n2023. Upon receipt of the Motion, the claimant’s counsel advised that she did not object to \nthe  dismissal,  as  no  issues  were  ripe  for  adjudication.  The  claimant  also  waived  her \nappearance at the hearing. \n Based on the record, the arguments from the respondents’ counsel, and the evidence \naccepted  on  the  record  at  the  hearing,  I  am  compelled to  find  that the  Motion  to  Dismiss \n\nBailey-Williams—H203138 \n2 \n \nshould be granted due to the claimant’s lack of prosecution and that the matter should  be \ndismissed without prejudice.  \nORDER \n Pursuant to the above, the Motion to Dismiss is granted and this matter is dismissed \nwithout prejudice.   \nSO ORDERED. \n \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2035,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203138 JOYCE BAILEY-WILLIAMS, EMPLOYEE CLAIMANT TYSON POULTRY, INC. EMPLOYER RESPONDENT TYSON POULTRY/TYNET CORP., CARRIER/TPA RESPONDENTS OPINION FILED 9 AUGUST 2023 Hearing before Administrative Law Judge JayO. Howe in Little Rock, Pulaski County, Arkans...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:03:42.335Z"},{"id":"alj-H208246-2023-08-09","awccNumber":"H208246","decisionDate":"2023-08-09","decisionYear":2023,"opinionType":"alj","claimantName":"Joann Bauer","employerName":"Mhm Support Services","title":"BAUER VS. MHM SUPPORT SERVICES AWCC# H208246 AUGUST 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BAUER_JOANN_H208246_20230809.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAUER_JOANN_H208246_20230809.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H208246 \n \nJOANN L. BAUER, Employee                                                                         CLAIMANT \n \nMHM SUPPORT SERVICES, Employer                                                   RESPONDENT                        \n \nMERCY HEALTH, Carrier                                                                         RESPONDENT                          \n \n \n OPINION FILED AUGUST 9, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by RANDY P. MURPHY, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On July 12, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on May 17, 2023 and a pre-hearing \norder was filed on May 22, 2023.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.     The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   Claimant sustained a compensable injury to her thoracic and lumbar spine on \nNovember 1, 2022. \n 3.   The claimant was earning an average weekly wage of $2,406.15 which would \nentitle her to compensation at the maximum weekly rates. \n\nBauer – H208246 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.  Temporary total disability benefits from December 9, 2022 through January 23,  \n2023, and from February 17, 2023 through a date yet to be determined. \n2.    Claimant’s entitlement to unpaid medical as follows: \na.  Siloam Springs ER, 11/3 \nb.  Mercy ER, 11/5 \nc.   Mercy Sports Medicine – Dr. Jacobelli, M.D. for \nThoracic and lumbar spine – 1/5, 1/20, 2/17, 3/31, 5/2 \nd.  Chronic Pain Management – thoracic spine injection \n4/20 \ne.  Thoracic MRI ordered by Dr. Jacobelli \nf.   Mercy Neurosurgery – Alejandro Castellvi, M.D., 1/6 \ng.  Mercy Therapy Services – thoracic and lumbar spine – \n3/20, 3/23, 4/4, 4/27 and 5/2. \n \n3.    Claimant’s entitlement to additional medical treatment recommended by  Dr. \nJacobelli;  including,  physical  therapy,  chronic  pain  management  and  referral  to  a \nneurosurgeon. \n4.    Attorney’s fee. \n \n The claimant contends that she is entitled to payment of unpaid medical expenses \nas well as additional medical treatment recommended by Dr. Jacobelli. She also requests \npayment of temporary total disability benefits from December 9, 2022 through January \n23, 2023, and from February 17, 2023 through a date yet to be determined.  Also, see \nExhibit #1 attached to the pre-hearing order and contained as Commission Exhibit #1 to \nthe hearing transcript. \n The  respondents  contend  that  medical  treatment  was  authorized  from  Dr. \nBerestnev and Dr. Owen Kelly. Respondent has paid for this medical treatment.  All other \ntreatment  is  unauthorized  and  not  the  liability  of  respondent.    Respondent  denies  that \n\nBauer – H208246 \n \n3 \n \nclaimant is entitled to additional medical treatment recommended by Dr. Jacobelli.  Also, \nsee Exhibit #2 attached to the pre-hearing order and contained as Commission Exhibit \n#1 to the hearing transcript. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1.  The stipulations agreed to by the parties at a pre-hearing conference conducted \non May  17,  2023  and  contained  in  a  pre-hearing  order  filed  May  22, 2023  are  hereby \naccepted as fact. \n2.      Respondent did not provide claimant a copy of  Form AR-N  as required by \n A.C.A. §11-9-514 and Delargy v. Golden Years Manor, 2014 Ark. App. 499, 442 S.W. 3d \n889; therefore, the change of physician rules are not applicable and the unpaid medical \ntreatment is not unauthorized.  \n3.    Claimant has met her burden of proving by a preponderance of the evidence \nthat  unpaid  medical  bills  are  reasonable  and  necessary  medical  treatment  for her \ncompensable injury and that respondent is liable for payment of those bills.  This includes, \nbut  is  not  limited  to,  emergency  room  treatment  on  November  3  and  November  5; \ntreatment  provided  by  Dr.  Jacobelli;  a  thoracic  MRI  scan;  a  thoracic  spine  injection; \ntreatment by Dr. Castellvi; and physical therapy. \n 4.    Claimant has met her burden of proving by a preponderance of the evidence \n\nBauer – H208246 \n \n4 \n \nthat she is entitled to additional medical treatment recommended by Dr. Jacobelli.  This \nincludes, but is not limited to, pain management and referral to a neurosurgeon. \n 5.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she is entitled to temporary total disability benefits from December 9, 2022 through \nJanuary 23, 2023, and from February 17, 2023 through July 2, 2023. \n 6.    Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n  \n FACTUAL BACKGROUND \n Claimant  is  a  49-year-old  APRN  who  is  employed  by  respondent  at  Mercy-\nGoHealth  in  Rogers.   She  is  a  certified family  nurse  practitioner  and  is  responsible  for \ntreating  urgent  care  patients.    Diagnosis  and  treatment  may  include  broken  bones,  \nlacerations, IV therapy, CPR, et cetera.  Her supervising physician and direct supervisor \nis Dr. Gomez.   \n On  November  1,  2022,  claimant  was  in  an  exam  room  talking  to  a  male  patient \nthat had tested positive for Covid at home.  During that examination she turned and saw \nthat he was starting to fall off of the exam table.  She grabbed him and put him back on \nthe  table  and  as  she  did  so,  felt  immediate  pain  in  her  thoracic  and  lumbar  spine.  \nClaimant  asked  an  assistant  to  get  Dr.  Gomez  and  call  an  ambulance  for  the  patient.  \nClaimant informed Dr. Gomez of the incident and he completed a form on November 15, \n2022, indicating that he was informed of the injury on November 1, 2022.   \n Claimant was not scheduled to work on November 2, 2022.  She testified that she \nhad back pain and could not get out of bed that day.  She texted Dr. Gomez and he called \n\nBauer – H208246 \n \n5 \n \nin a prescription of Flexeril for her.  Claimant was also not scheduled to work on November \n3, 2022.  She testified that she had severe back pain and could not walk or urinate.  She \nwas taken to the emergency room in Siloam Springs by her son where she was given a \ncatheter and prescribed medications for pain.   \n On November 5, 2022, claimant was again unable to force herself to urinate and \nagain could not walk.  She was taken by ambulance to Mercy emergency room in Rogers \nwhere  an  MRI  scan  revealed  a  disc  herniation  at  L5-S1.    Claimant  was  given  a \nprescription for pain medication and muscle relaxers.  She was also instructed to follow \nup with her primary care physician or with a neurosurgeon if the symptoms persisted. \n On November 7, 2022, claimant met with Jennifer Williams, respondent’s workers’ \ncompensation  coordinator  for  Northwest  Arkansas,  and  completed  paperwork.    This \npaperwork included Form AR-N.  On November 9, 2022, claimant was evaluated by Dr. \nAlejandro Castellvi, neurosurgeon, for complaints of right lower extremity pain and right-\nsided low back pain.  He noted that the MRI scan revealed a small disc herniation at L5-\nS1; prescribed home exercises and Valium; and also indicated that claimant could return \nto work on Monday (November 14). \n According to the testimony of Williams, respondent decided to accept this claim as \ncompensable  on  November  15,  and  an  appointment  was  made  for  claimant  to  be \nevaluated by Dr. Berestnev on November 16, 2022.  Dr. Berestnev noted the herniated \ndisc  at  L5-S1 and diagnosed claimant’s condition as a sprain of the ligaments  of  the \nlumbar spine.  He prescribed physical therapy and placed a work restriction of lifting no \nmore than 20 pounds on the claimant. \n Claimant  returned  to  Dr.  Berestnev  on  November  22,  2022  and  he  noted  that \n\nBauer – H208246 \n \n6 \n \nclaimant’s pain was worsening.  He prescribed an injection, medication, and referred \nclaimant for a nerve conduction study.  He also lowered the claimant’s lifting restriction to \n10 pounds.  Following this visit the claimant began undergoing physical therapy. \n Claimant  was  again  evaluated  by  Dr.  Berestnev  on  December  6,  2022,  and  he \nnoted that her NCV was normal.  He referred her for a CT scan of the right lower quadrant \nfor pain/swelling and urinary retention symptoms.  He also continued her lifting restriction \nat 10 pounds. \n On December 9, 2022, claimant was evaluated by her primary care provider, Tu \nPhan, APRN.  Phan noted that claimant was taking Valium but could not take it at work \nbecause it was against respondent’s policy.  Phan indicated that claimant should be off \nwork until she was no longer taking sedating medications. \n Claimant  returned  to  Dr.  Berestnev  on  December  20,  2022,  and  he noted  that \nclaimant’s primary care physician had taken her off work.  He also indicated that claimant \nshould  be  seen  by  a  specialist  and  referred  claimant  to  Dr.  Miedema  at Ozark \nOrthopedics.  According to a note from Dr. Berestnev’s office, this referral was denied by \nrespondent. \n On December 23, 2022, claimant was again seen by Phan who noted that claimant \nwas  still  taking  Valium.    She  referred  claimant  to  Dr.  Jacobelli  at  Mercy  Clinic  Sports \nMedicine  and  claimant  was  seen  by  Dr.  Jacobelli  on  January  5,  2023.    He  diagnosed \nclaimant’s condition as a strain of the abdominal muscle; low back pain radiating to the \nright  leg;  and  acute  right-sided  thoracic  back  pain.    He  ordered  a  thoracic  MRI  and a \ncompounding  topical  cream  to  apply  to  the  abdomen.    He  did  not  specifically  address \nclaimant’s ability to return to work, but in a report dated January 6, 2023, Phan indicated \n\nBauer – H208246 \n \n7 \n \nthat  claimant  was  unable  to  work  due  to  her  injury  and  should  remain  off  work  until \nreleased by an orthopedist. \n On  January  20,  2023,  claimant  again  returned  to  Dr.  Berestnev  who  noted  that \nclaimant wanted a thoracic MRI scan due to the right upper abdominal symptoms.  Dr. \nBerestnev apparently agreed with that request and he ordered an MRI scan of the thoracic \nspine as well as continued physical therapy.  On that same day, claimant was also seen \nby Dr. Jacobelli who noted that the thoracic MRI scan had not been approved.  He also \nrecommended  that  claimant  continue  physical  therapy  and  the  use  of  compounding \ncream.  Finally, he indicated that claimant could return to work on Monday with limitations \non lifting; that she take frequent breaks; and “take her time”.  Claimant did return to work \nfor respondent on January 24, 2023. \n Respondent  did  not  accept  liability  for  the  thoracic  MRI  scan  even  though  Dr. \nBerestnev also recommended the test.  In fact, Williams contacted Dr. Berestnev’s office \non January 24, 2023, and indicated that respondent would not authorize any additional \nmedical treatment.  [I note that Williams did not make this decision, but merely notified \nDr. Berestnev of the decision.]    \n Since January 24, 2023, claimant has continued to receive medical treatment from \nDr. Jacobelli.  This treatment has included additional physical therapy; an MRI scan of \nthe thoracic spine showing disc herniations at T8-9 and T9-10; thoracic epidural steroid \ninjections; trigger point injections; and medications.   He has also referred claimant for a \nneurosurgical evaluation by Dr. Castellvi.  Dr. Castellvi in a report dated June 19, 2023 \nrecommended a T11-12 transforaminal injection.   \n As  previously  noted,  respondent  denied  payment  for  any  additional  medical \n\nBauer – H208246 \n \n8 \n \ntreatment  subsequent  to  January  24,  2023.    Claimant  has  filed  this  claim  requesting \npayment for various medical treatment provided both before and after this date as well as \nadditional medical treatment recommended by Dr. Jacobelli.  She also requests payment \nof temporary total disability benefits from December 9, 2022 through January 23, 2023, \nand from February 17, 2023 through a date yet to be determined as well as an attorney \nfee. \nADJUDICATION \n \n The initial issue for consideration involves payment for various medical treatments \nclaimant received.  This includes emergency room treatment on November 3, 2022 and \nNovember 5, 2022; treatment from Drs. Jacobelli and Castellvi; injections; a thoracic MRI; \nand physical therapy treatment from Mercy Therapy Services. \n Pursuant to A.C.A. §11-9-514(a)(3)(A)(i) the employer has the right to select the \ninitial  treating  physician.    However,  an  employee  may  request  a  one-time  change  of \nphysician.  A.C.A. §11-9-514(a)(2)(A).  When claimant seeks a change of physician, she \nmust  petition  the  Commission for  approval.   Stephenson  v.  Tyson Foods,  Inc.,  70  Ark. \nApp.  265,  19  S.W.  3d  36  (2000).    Treatment  or  services  furnished  or  prescribed  by  a \nphysician other than the one selected according to the change of physician rules, except \nemergency  treatment,  shall  be  at  the  claimant’s  expense.    A.C.A.  §11-9-514(b).  \nFurthermore, A.C.A. §11-9-514 provides: \n      (c)(1)  After being notified of an injury, the employer or \n  insurance carrier shall deliver to the employee, in person \n  or by certified mail, return receipt requested, a copy of a \n  notice, approved or prescribed by the commission, which \n  explains the employee’s right and responsibilities concern- \n  ing change of physician. \n      (2)  If, after notice of injury, the employee is not furnished \n\nBauer – H208246 \n \n9 \n \n  a copy of the notice, the change of physician rules do not \n  apply. \n       (3)  Any unauthorized medical expense incurred after \n  the employee has received a copy of the notice shall not \n  be the responsibility of the employer. \n \n \n The documentary evidence contains Form AR-N signed by claimant on November \n7, 2022.    On  cross  examination,  claimant acknowledged  her  signature  and signing  the \nform.  However, pursuant to the decision in Delargy v. Golden Years Manor, 2014 Ark. \nApp. 499, 442 S.W. 3d 889, there must also be proof that the claimant actually received \na copy of the Form AR-N.  Simply signing Form AR-N is not sufficient.  In Delargy, the \nCourt first noted that a signed Form AR-N was not in the abstract or the record.  Even \nthough  a  signed  copy  of  Form  AR-N  was  not  in  the  record,  the  claimant  in Delargy \nadmitted  that  she  read  and  signed  Form  AR-N.    However,  the  Court  in  reviewing  the \nstatute  focused  on  the  fact  that  claimant  must  also  be  furnished  a  copy  of  the  notice.  \nSpecifically, the Court stated: \n  We are obliged to strictly construe and apply the workers’ \n  compensation act.  Ark. Code Ann. §11-9-704(c)(3)(Repl. \n  2002).  Furthermore, there must be substantial evidence \n  that the employer complied with the statutory mandate, \n  but here, there is  no evidence to support the Commission’s \n  finding that Delargy received a copy of the notice of the \n  procedure involved in changing physicians. \n \n  Arkansas Code Ann. §11-9-514(a)(2)(A) allows a one-time- \n  only change of physician.  Subsection (c)(1) mandates that \n  the employer, after being notified of an injury, deliver a copy \n  of a notice to the employee, in person or by certified or \n  registered mail, return receipt requested, explaining the \n  employee’s rights and responsibilities concerning change \n  of physician.  If the employee is not furnished a copy of the \n  notice, the change of physician rules will not apply.  Ark. \n  Code Ann. §11-9-514(c)(2). \n \n\nBauer – H208246 \n \n10 \n \n \n Here, as in Delargy, claimant acknowledged signing Form AR-N and that form is \ncontained in the documentary evidence.  However, there is no proof that claimant was \nprovided a copy of that form as required by the decision in Delargy.  In cases decided \nsince Delargy,  this  proof  has  been  provided  by  other  means  such  as  testimony from \nwitnesses that in addition to signing Form AR-N, a claimant was also provided a copy of \nForm  AR-N.    See, Fuller  v.  Pope  County  Judge,  2018  Ark.  App.  1,  538  S.W.  2d  851.  \nClaimant did not testify that she received a copy of Form AR-N and Williams did not testify \nthat  she  provided  a  copy  of  Form  AR-N  to  claimant.    Accordingly,  I  find  that  the \nrequirements  of  providing  a  copy  of  Form  AR-N  as  required  by  the  statute and  the \ndecision in Delargy were not met in this case.  Therefore, the change of physician rules \nset forth in A.C.A. §11-9-514 are not applicable. \n Since  the  change  of  physician  rules  of  A.C.A.  §11-9-514  are  not  applicable, \nrespondent  is  liable  for  all  reasonable  and  necessary  medical  treatment  provided  to \nclaimant  for  her  compensable  thoracic  and  lumbar  spine  injuries.    With  respect  to  this \nissue, I note that there was testimony provided at the hearing regarding back complaints \nwhich claimant was experiencing prior to the incident on November 1, 2022.  The medical \nrecords  indicate  that  when  claimant  sought  treatment  from  the  emergency  room  on \nNovember  3, 2022,  she  gave  a history  of her  back  pain  beginning after working  in  the \nyard the weekend before.  However, the history also indicates that the incident of catching \na patient occurred on November 1, 2022, and that ever “since then I have had horrible \npain on my right lower back going down my right knee.”  Claimant  acknowledged  this \nhistory during her testimony.  I also note that Dr. Gomez, claimant’s supervisor, completed \n\nBauer – H208246 \n \n11 \n \na Supervisor Incident Evaluation Form on November 15, 2022, indicating that although \nclaimant had reported to work with back pain on November 1, the “Pain was exacerbated \nafter she helped a patient that was about to fall from exam room table.”   Dr. Berestnev \nalso indicated that the treatment he provided was related to claimant’s work activities.  Dr. \nCastellvi also indicated in his report of June 19, 2023:  “At this point I do not feel that her \nsymptoms were related to running.  I felt that her symptoms were related more towards \nat the time when she moved the patient.” \n I  also  note  that  respondent  requested  that  claimant  undergo  an  independent \nmedical evaluation by Dr. Owen Kelly.  In his report of March 29, 2023, Dr. Kelly indicated \nthat claimant’s work injury contributed to her symptoms:  “Her pain localizes around the \nT8-10 dermatomal area.  This seems consistent and is the likely source of her pain.  This \ncould be related to a rotation type stress at work coupled with the history of pain from the \nyard work noted in her history.”   \nIn addition, Dr. Kelly addressed causation of her complaints in a follow-up report \ndated April 14, 2023.  In his report of that date he noted: \n There is noted to be some “gray area” in the history. \n There was documentation of pain relating to irritating \n her back when she was doing yard work.  Although \n this could be a cause of her pain or part of it, the \n rotation injury contributed.  (Emphasis added.) \n \n \nFinally, and most importantly, respondent has  stipulated that claimant suffered a \ncompensable injury to her thoracic and lumbar spine on November 1, 2022. \n I find based on my review of the medical records submitted in this claim that the \nunpaid medical treatment provided at the emergency rooms; treatment from Drs. Jacobelli \n\nBauer – H208246 \n \n12 \n \nand  Castellvi;  injections;  thoracic  MRI;  and  physical  therapy  was  reasonable  and \nnecessary medical treatment for claimant’s admittedly compensable thoracic and lumbar \nspine  injuries.    Therefore,  respondent  is  liable  for  payment  of  this  unpaid medical \ntreatment. \n Even if the change of physician rules of A.C.A. §11-9-514 were applicable, I would \nhave found that most of the medical treatment was the liability of respondent.  First, A.C.A. \n§11-9-514(b) states: \n  Treatment or services furnished or prescribed by any \n  physician other than the ones selected to the foregoing, \n  except emergency treatment, shall be at the claimant’s \n  expense.  (Emphasis added.) \n \n \n I find that the medical treatment provided at the emergency rooms on November \n3, 2022 and November 5, 2022 constituted emergency treatment.  Claimant testified that \nshe sought medical treatment from the emergency room because she could not walk and \ncould  not  urinate.    Thus,  I  find  that  this  treatment  was  emergency  treatment  and \nrespondent is liable for payment.   \n Furthermore, as previously noted, respondent denied payment for any additional \nmedical treatment subsequent to January 24, 2023.  Williams testified as follows: \n  Q Will you agree with me that as of January 24\nth\n of \n  2023, you had informed Ms. Bauer’s treating physician \n  that you would not authorize any further treatment? \n \n  A Correct. \n \n  Q And would you agree with me that of as January \n  24\nth\n of 2023, Mercy has not provided any other benefits \n  to the claimant? \n \n  A Correct.  But these are not decisions that I am \n\nBauer – H208246 \n \n13 \n \n  making if that is what you are alluding to. \n \n \n Respondent  chose  to  deny  medical  treatment  even  though  it  had  accepted \ncompensable injuries to the thoracic and lumbar spines and even though its own chosen \ntreating physician, Dr. Berestnev, had recommended additional medical treatment.  Even \nDr.  Kelly  indicated  that  claimant  needed  additional  medical  treatment  for  her  thoracic \nspine,  but  this  was  likewise  denied  by  respondent.    Apparently,  respondent  took this \nposition  because  claimant  sought  medical  treatment  on  her  own.    Williams  testified  as \nfollows: \n  Q Do you know why Ms. Bauer has not been sent \n  back to Mercy at this point? \n \n  A So to the best of my knowledge, in the work comp \n  paperwork it states that you will not seek treatment \n  outside of work comp and she chose to do so, so we \n  chose to end treatment. \n \n \n If a claimant seeks medical treatment (non-emergency) on their own, a respondent \nmay not be liable for payment of that medical treatment.  However, that does not excuse \nrespondent  from  providing  authorized  medical  treatment.    By  denying  any  medical \ntreatment  subsequent  to  January  24,  2023,  respondent  permitted  claimant  to  seek \nmedical treatment from the providers of her own choosing as long as the treatment was \nreasonable  and  necessary  and  related  to  the  compensable  injuries.    Thus,  all medical \ntreatment  provided  to  claimant  subsequent  to  January  24,  2023  would  have been  the \nliability of respondent even if the change of physician rules had been applicable.   \n I also find that claimant has met her burden of proving by a preponderance of the \nevidence that she is entitled to additional medical treatment for her compensable injuries \n\nBauer – H208246 \n \n14 \n \nas recommended by Dr. Jacobelli.  This includes continued treatment from his referral to \nDr. Castellvi; chronic pain management; and physical therapy. \n The final issue for consideration is claimant’s request for temporary total disability \nbenefits.  Claimant’s injuries to her thoracic and lumbar spines are unscheduled injuries.  \nA  claimant  who  suffers  an  unscheduled  injury  is  entitled  to  temporary  total  disability \nbenefits  during  their  healing  period  when  they  suffer  a  total  incapacity  to earn  wages.  \nArkansas State Highway & Transportation Department v. Breshears, 272 Ark. 244, 613 \nS.W. 2d 392 (1981).   \n After  reviewing  the  evidence,  I  find  that  claimant  has  remained  in  her  healing \nperiod since the time of her injury.  As previously noted, claimant’s treating physicians \nhave  recommended  additional  medical  treatment  in  the  form  of  medications,  physical \ntherapy,  and  injections.    Dr.  Castellvi  has  even  mentioned  the  possibility  of  a  thoracic \ndiscectomy.    Even  Dr.  Berestnev  and  Dr.  Kelly,  respondent’s  chosen  physicians, \nrecommended additional medical treatment for claimant’s injury.  Accordingly, I find that \nclaimant remains within her healing period. \n I also find that claimant suffered a total incapacity to earn wages from December \n9,  2022  through  January  23,  2023,  and  again  from  February  17,  2023  through  July  2, \n2023.  Dr. Berestnev did not take claimant off work, but instead indicated that claimant \ncould  return  to  work  with  lifting  restrictions.    However,  on  December  9,  2022,  claimant \nwas  examined  by  APRN  Phan  who  noted  that  claimant  was  taking  Valium  for  her \ncompensable injuries and that employees of respondent were prohibited from taking that \nmedication while working.  I also note that claimant testified that she would be unable to \nperform her job duties with her restrictions.  Claimant testified that she could not suture a \n\nBauer – H208246 \n \n15 \n \npatient, perform CPR, or catch a patient that was falling.  Claimant testified that they have \nhad patients suffer heart attacks or pass out while in the waiting room.  It is reasonable \nthat claimant would not be capable of performing job duties of a medical provider while \ntaking  Valium  and  having  a  10  or  20-pound  lifting  restriction.    Accordingly, I  find  that \nclaimant  suffered  a  total  incapacity  to  earn  wages  from  December  9,  2022  through \nJanuary 23, 2023.   \n Claimant’s incapacity to earn wages continued until January 23, 2023, when she \nreturned  to  work  after seeing  Dr.  Jacobelli  on  January  20, 2023, and  he  indicated  that \nclaimant could return to work with frequent breaks.  On January 23, 2023, Dr. Gomez, as \nclaimant’s leader, indicated that claimant  could  perform  job  duties  of  providing  clinical \nservices – including evaluation, diagnosis, and treatment of urgent care conditions.  He \nalso  indicated  that  she  could  interpret  diagnostic  tests  and  keep  timely  and  accurate \nencounter note documentation.  Claimant returned to work for respondent on January 23 \nand continued to work until February 16, 2023.   \n On February 17, 2023, Dr. Jacobelli indicated that claimant could continue working \nas tolerated.  However, he subsequently completed a Medical  Leave Certification form \nfor claimant indicating that claimant had been incapacitated due to her medical condition \nsince February 17, 2023, and that this would continue through July 2, 2023.  I find that \nDr. Jacobelli’s opinion is credible and entitled to great weight.  The documentary evidence \ndoes not contain any opinion from claimant’s treating physicians stating that her total \nincapacity has been extended beyond July 2, 2023.  Accordingly, I find that claimant was \nin  her  healing  period  and  suffered  a  total  incapacity  to  earn  wages  from  February  17, \n2023 through July 2, 2023. \n\nBauer – H208246 \n \n16 \n \n In summary, I find that claimant is entitled to temporary total disability benefits from \nDecember 9, 2022 through January 23, 2023, and again from February 17, 2023 through \nJuly 2, 2023.   \n Finally,  I  note  that  claimant  testified  that  she  is  currently  drawing  long  term \ndisability benefits and received a check backdating those benefits to November 4, 2022.  \nPursuant  to  A.C.A.  §11-9-411,  respondent  is  entitled  to  a  credit  for  those  disability \nbenefits.  However, respondent is not entitled to a credit if claimant paid for her long term \ndisability  policy.  A.C.A.  §11-9-411(a)(2).    Although  claimant  testified  that  she  was \nreceiving  long  term  disability  benefits,  there  was  no  testimony  or  evidence  offered \nregarding whether claimant or respondent paid for the disability policy. \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nrespondent  is  liable  for  payment  of  various  unpaid  medical  bills  provided  for  treatment \nrelating to her compensable thoracic and lumbar spine injuries.  Claimant has also proven \nby a preponderance of the evidence that she is entitled to additional medical treatment \nrecommended  by  Dr.  Jacobelli.    Finally,  claimant  has  met  her  burden  of  proving  by  a \npreponderance of the evidence that she is entitled to temporary total disability benefits \nfrom  December  9,  2022  through  January  23,  2023,  and again  from  February  17,  2023 \nthrough July 2, 2023.  Respondent has controverted claimant’s entitlement to all unpaid \nindemnity benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \n\nBauer – H208246 \n \n17 \n \nclaimant.   Thus, claimant’s attorney  is  entitled  to  a  25%  attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \nRespondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $1,327.95. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n                                                                                  \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":30146,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208246 JOANN L. BAUER, Employee CLAIMANT MHM SUPPORT SERVICES, Employer RESPONDENT MERCY HEALTH, Carrier RESPONDENT OPINION FILED AUGUST 9, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas. Claimant...","outcome":"granted","outcomeKeywords":["granted:8","denied:1"],"injuryKeywords":["thoracic","lumbar","back","herniated","sprain","strain","knee"],"fetchedAt":"2026-05-19T23:03:44.481Z"},{"id":"alj-H300515-2023-08-09","awccNumber":"H300515","decisionDate":"2023-08-09","decisionYear":2023,"opinionType":"alj","claimantName":"Lillie Neal","employerName":"Edwards Food Giant","title":"NEAL VS. EDWARDS FOOD GIANT AWCC# H300515 AUGUST 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Neal_Lillie_H300515_20230809.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Neal_Lillie_H300515_20230809.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H300515 \n \nLILLIE K. NEAL, EMPLOYEE  CLAIMANT \n \nEDWARDS FOOD GIANT, \nEMPLOYER                                                                                                RESPONDENT  \n \nRETAILERS CASUALTY INSURANCE, \nINSURANCE COMPANY                                                                          RESPONDENT \n \nSUMMIT CONSULTING, LLC., \nTHIRD PARTY ADMINISTRATOR                                                           RESPONDENT  \n \n \nOPINION FILED AUGUST 9, 2023 \n \nHearing before Administrative Law Judge Steven Porch on August 9, 2023, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant is representing herself, Pro Se, Little Rock, Arkansas. \n \nThe Respondents were represented by Zachary F. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  was  scheduled  for  a  full-hearing  today,  August  9,  2023,  10am. \nClaimant  did  not  appear  for  the  hearing.  Notices  were  sent  to  Claimant certified  return \nreceipt requested and regular first class mail. The Claimant did not sign for the certified \nletter. However, the first class letter containing the same hearing notice was not returned. \nI further requested my assistant, Melanie Miller, to call the Claimant on the date of the \nhearing to ascertain her whereabouts. My assistant was not able to reach the Claimant. \nMy  assistant  further  checked  with  security  downstairs  to  see  whether  she  signed  in  to \nenter the building. The Claimant was not in the building.  \nI opened the hearing at 10:35am, 35 minutes after the time the full-hearing was \nscheduled to begin. I asked Respondent’s counsel how would he like to proceed and he \n\nNEAL H300515 \n \n \n2 \nmade an oral Rule 13 motion for dismissal for lack of prosecution. I have  accepted this \nmotion and entered into evidence the Commission’s file by reference. I also entered the \nPrehearing Order filed on June 26, 2023, as Commission’s Exhibit 1.  \n The evidence reflects that Claimant’s injury occurred on October 21, 2022, where \nshe  purportedly  injured  her  head.  This  incident  allegedly  occurred  when  Claimant  was \nattempting to sit down in her employer’s breakroom when she fell backwords out of the \nchair injuring her head. Claimant was not clocked in at the time of the incident but was \nwaiting for her shift to start. This is a totally controverted claim.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the full-hearing that was later \nconverted  to  a  Motion  to  Dismiss  hearing  under  AWCC  R.  099.13,  due  to \nClaimant’s failure to appear at the full-hearing. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute her claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \n\nNEAL H300515 \n \n \n3 \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven  reasonable  notice,  at  the  addresses  provided  by  each  party,  for  the  Motion  to \nDismiss hearing under Rule 13. I further find that Claimant has abridged this rule. Thus I \nfind Respondent’s Motion to Dismiss should be granted without prejudice. \n \n \n \n\nNEAL H300515 \n \n \n4 \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5460,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300515 LILLIE K. NEAL, EMPLOYEE CLAIMANT EDWARDS FOOD GIANT, EMPLOYER RESPONDENT RETAILERS CASUALTY INSURANCE, INSURANCE COMPANY RESPONDENT SUMMIT CONSULTING, LLC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 9, 2023 Hearing before Administra...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:03:46.540Z"},{"id":"alj-H204111-2023-08-08","awccNumber":"H204111","decisionDate":"2023-08-08","decisionYear":2023,"opinionType":"alj","claimantName":"Peggy Clemons","employerName":"South Conway County School District","title":"CLEMONS VS. SOUTH CONWAY COUNTY SCHOOL DISTRICT AWCC# H204111 AUGUST 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CLEMONS_PEGGY_H204111_20230808.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CLEMONS_PEGGY_H204111_20230808.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H204111 \n \nPEGGY CLEMONS, EMPLOYEE      CLAIMANT \n \nSOUTH CONWAY COUNTY SCHOOL  \nDISTRICT, EMPLOYER            RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, \nCARRIER / TPA                    RESPONDENT \n \nOPINION FILED AUGUST 8, 2023 \n \nHearing  before  Administrative  Law  Judge  James  D.  Kennedy  on  June  27, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant is pro se and appeared on her own behalf. \n \nRespondents are represented by Ms. Carol Lockard Worley, Attorney-at-Law \nof Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on June 27th, 2023, in Little Rock, \nArkansas,  on  respondents’  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas   Code   Annotated   §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant filed an AR-C on or about June 6, 2022, contending that \nshe had been injured on February 9, 2022, while loading car riders into their cars at the \nend of a school day, slipping on ice, and injuring her “foot, ears loudly ringing, with upper \nand lower back pain.”  The respondents filed an AR-2 dated June 7, 2022, which provided \nthat  the  claim  was  medical only.  The claimant’s retained counsel, Evelyn Brooks, of \nFayetteville  Arkansas,  withdrew  as  the  attorney-of-record  on  August  8,  2022,  after \nobtaining an Order from the Full Commission. \n On or about April 12, 2023, the respondents filed a Motion to Dismiss For Failure \nto  Prosecute,  and  contended  that  the  claimant  had  not  sought  any  type  of bona  fide \n\nCLEMONS – H204111 \n \n2 \n \nhearing before the Arkansas Workers’ Compensation Commission over the last six  (6) \nmonths and that, consequently, the matter should be dismissed for failure to prosecute \npursuant to Rule 099.13 of the Arkansas Workers’ Compensation and also pursuant to \nArk. Code Ann. §11-9-702.  There was no record of the claimant filing a response to the \nMotion to Dismiss and the hearing was set for June 27, 2023. \n On  the  date  of  the  hearing,  the  respondents  were  ably  represented  by  Ms.  Carol \nWorley  who  provided  that  the  claim  had  been  accepted  as  compensable  and that \nappropriate  benefits  were  paid.    The  claimant  appeared pro  se.    The  respondents \nintroduced medical records which provided that the claimant had received an MRI that \nwas  read  as  unremarkable, that Dr. Head released the claimant to return to work in a \nfull-duty  position  on  April  18,  2022,  and  that  claimant  was  released  at  full  capacity  on \nApril 21, 2022.  Dr. Baskin opined that the claimant had reached MMI on May 26, 2022.   \nThe respondents filed a Motion to Dismiss and consequently, a prehearing questionnaire \nand notice was sent to the parties by the Commission.  The questionnaire was answered \nby the respondents, but the claimant failed to respond. \n The  claimant  testified  at  the  hearing  that, “since I fell my thoughts are really \nconfused.” “When I fell, I immediately noticed a lack of genuine care and concern for my \ninjuries.”  “I mean, I was in pain.  I couldn’t tell them, I couldn’t explain anything.  I got \nthat too.  So there was a lack of response that day and no concern whatsoever, but I knew \nthat I had to keep saying it, so every time I went to the doctor, I repeated the same thing \nover and over and over.”  The claimant also provided she had to go to the dentist, that she \nhad COPD, that she trained for a 5K as a gift to herself when she turned fifty (50), and \nthat she may have been diagnosed with a type of cancer and may have an issue with her \nkidneys.  \n\nCLEMONS – H204111 \n \n3 \n \n After claimant’s  testimony  and  after  the  respondents  again  requested  that  the \nmatter be dismissed, the claimant was instructed that the matter would be taken under \nadvisement  for  approximately  thirty  (30)  days  and  that  she  needed  to  find  someone  to \nassist her in pursuing her claim.  \n From a review of the file, it appears that the claimant filed a “Preliminary Notice” \non or about July 11, 2023, which has been blue-backed and attached hereto.  \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondents as well as the claimant’s statements, I find that the Motion to Dismiss will be \nheld in abeyance at this time and that the claimant is ordered to appropriately respond to \nthe Prehearing Questionnaire and any outstanding discovery within twenty (20) days of \nthis  Order.    Further,  the  claimant  shall  take  the  steps  as  required  by  the  Arkansas \nWorkers’ Compensation Act that she deems appropriate to pursue her claim, which may \ninclude obtaining counsel.  Failure to do so may result in a request to renew the Motion \nto Dismiss and will leave no alternative but to take the appropriate action as spelled out \nin the Arkansas Workers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, I have no alternative but to find that \nthe  Motion  to  Dismiss  shall  be  held  in  abeyance  at  this  time  and  that  the  claimant  is \nordered  to  appropriately  respond  to  the  Prehearing   Questionnaire  and  any  other \noutstanding discovery within twenty (20) days of this Order and further to take the steps \nthe claimant deems appropriate to pursue her claim pursuant to the Arkansas Workers \nCompensation Act which may include obtaining counsel.  Failure to do so may result in a \n\nCLEMONS – H204111 \n \n4 \n \nrequest  to  renew  the  Motion  to  Dismiss  and  will  leave  no  alternative  but  for the \nappropriate action to be taken pursuant to the Arkansas Workers’ Compensation Act. \nIT IS SO ORDERED. \n                \n      ____________________________ \n                 JAMES D. KENNEDY \n                 ADMINISTRATIVE LAW JUDGE","textLength":5987,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204111 PEGGY CLEMONS, EMPLOYEE CLAIMANT SOUTH CONWAY COUNTY SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER / TPA RESPONDENT OPINION FILED AUGUST 8, 2023 Hearing before Administrative Law Judge James D. Kennedy on June 27, ...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:03:34.050Z"},{"id":"alj-H205909-2023-08-08","awccNumber":"H205909","decisionDate":"2023-08-08","decisionYear":2023,"opinionType":"alj","claimantName":"Tristen Hammon","employerName":"Folsom Tree Service, LLC","title":"HAMMON VS. FOLSOM TREE SERVICE, LLC AWCC# HH205909 AUGUST 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Hammon_TRISTEN_H205909_20230808.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Hammon_TRISTEN_H205909_20230808.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H205909 \n \n \nTRISTEN G. HAMMON, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nFOLSOM TREE SERVICE, LLC,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nLM INSURANCE CORPORATION,  \nINSURANCE CARRIER                                                                                        RESPONDENT                           \n          \nLIBERTY MUTUAL GROUP,                                                                                                                                   \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED AUGUST 8, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, appeared for the hearing.         \n \nRespondents  represented  by  the  Honorable  Rick  Behring,  Jr.,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on July 19, 2023, in the present matter for a determination of whether \nthis case should be dismissed for failure to prosecute under the provisions of Ark. Code Ann. §11-\n9-702 (Repl. 2012) and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the July  19,  2023,  hearing  and  the  documents \ncontained therein. The Respondents’ Documentary Exhibit consisting of fourteen numbered pages \nwas marked as Respondents’ Exhibit 1.   Additionally, the entire Commission’s file has been made \na part of the record.  It is hereby incorporated herein by reference.   \n\nHammon – H205909 \n \n2 \n \n                                                           Procedural History \n On October 11, 2022, the Claimant’s former attorney filed with the Commission a claim \nfor Arkansas workers’ compensation benefits by way of a Form AR-C.  Specifically, counsel for \nthe  Claimant  alleged  that  on  August  9,  2022:  “Claimant  was  in  the  scope  and  course  of \nemployment  and  sustained  injuries  to  his  right  lower  leg  with  multiple  bone  breaks,  and  other \nwhole body.”  Counsel checked all the boxes for both initial and additional workers’ compensation \nbenefits.   \n  The respondent-insurance-carrier filed a Form AR-2 with the Commission on August 22, \n2022, accepting this a compensable injury for a right leg injury.  \n On December 9, 2022, the Claimant’s attorney moved to withdraw as counsel of record for \nthe Claimant in this case.  There being no objection to the motion to withdraw as counsel for the \nClaimant,  the  Full  Commission  granted  the  motion  pursuant  to  an  order  filed  on  December  20, \n2022.   \n  Since this time and the filing of the Form AR-C, there has been no noticeable action on \nthe part of the Claimant to prosecute his claim for workers’ compensation benefits, or otherwise \npursue or bring his claim to a resolution.  \nOn May 12, 2023, the Respondents filed with the Commission a Motion to Dismiss and \nIncorporated  Brief  in  Support  wherein  they  asked  that  the  claim  be  dismissed  for  a  lack  of \nprosecution  on  the  part  of  the  Claimant.    Counsel  also  included  a  Certificate  of  Service  to  the \nClaimant  demonstrating  that  they  served  a  copy  of  the  forgoing  pleading  on  the  Claimant by \ndepositing a copy thereof in the United States Mail addressed to his last known address.    \nThe Commission sent a letter-notice to the Claimant’s address listed in the Commission’s \nfile on May 18, 2023.  Per this correspondence, the Claimant was given a deadline of twenty days, \n\nHammon – H205909 \n \n3 \n \nfor filing a written response to the Respondents’ motion.  The notice was sent to the Claimant via \nfirst-class and certified mail.  The Claimant signed for delivery of this item to his home on May \n20, 2023.   \nOn July 13, 2023, the Claimant wrote to the Commission stating, “I do not want my case \ndismissed.  I’m still receiving medical treatment...”     \n Pursuant to a Hearing Notice mailed on June 12, 2023, the Commission notified the parties \nthat a hearing was scheduled to address the Respondents’ motion to dismiss this claim due to a \nlack of prosecution.  Said hearing was scheduled for July 19, 2023, at 12:00 p.m., at the Arkansas \nWorkers’ Compensation Commission, in Little Rock, Arkansas.   \nThe documentary evidence of record demonstrates that the Commission mailed the Notice \nof  Hearing  to  the  Claimant  via  first-class  and  certified  mail.    Information  received  by  the \nCommission  from  the  United  States  Postal  Service  shows  that  the  notice  was  delivered  to  the \nClaimant home, on June 26, 2023.  The electronic return receipt bears the Claimant’s signature.    \nSubsequently,  on  July  19,  2023,  a  dismissal  hearing  was  in  fact  conducted  on  the \nRespondents’  motion  for  dismissal  as  scheduled.    The  Claimant  and  his  granddad,  Mr.  Lyle \nBrennan, appeared for the hearing.  The Respondents appeared through their attorney.   \nCounsel  noted  that  all  appropriate  benefits  have  been  paid  and  that  the  Claimant  is  still \nreceiving medical treatment and Respondents have authorized some future medical care. Counsel \nasked that the Form AR-C be dismissed at this time.  After some discussion, the Claimant agreed \nwith his claim being dismissed.        \nHere, the Claimant has not identified any issue that requires litigation or participation by \nan Administrative Law Judge/ALJ, and there has been no request for a hearing since the filing for \n\nHammon – H205909 \n \n4 \n \nthe Form AR-C.  The Claimant is currently receiving medical benefits and does not object to his \ncase being dismissed.   \nUnder these circumstances, I am compelled to find that this claim should be and is hereby \ndismissed, without prejudice to the refiling of it with the limitation period specified by law.  This \ndismissal is hereby made under the provisions of Ark. Code Ann. §11-9-702 and Rule 099.13 of \nthis Commission. \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission a motion to dismiss this claim, \nfor which a hearing was held. \n \n3. The evidence preponderates that the Claimant has failed to timely prosecute \nhis claim for workers’ compensation benefits.  Of significance, the Claimant \ndoes not object to his claim being dismissed.    \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion  to  dismiss  is  hereby  granted  without  prejudice \npursuant to Ark. Code Ann. §11-9-702 and Commission Rule 099.13, to the \nrefiling of it within the limitation period specified by law.  \n \nORDER \n \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. §11-9-702 and Arkansas Workers’ Compensation \nCommission Rule 099.13, without prejudice to the refiling of it, within the limitation period  \n \n\nHammon – H205909 \n \n5 \n \nspecified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":7982,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H205909 TRISTEN G. HAMMON, EMPLOYEE CLAIMANT FOLSOM TREE SERVICE, LLC, EMPLOYER RESPONDENT LM INSURANCE CORPORATION, INSURANCE CARRIER RESPONDENT LIBERTY MUTUAL GROUP, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 8, 2023 Hearing held before Ad...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:03:36.118Z"},{"id":"alj-H104991-2023-08-08","awccNumber":"H104991","decisionDate":"2023-08-08","decisionYear":2023,"opinionType":"alj","claimantName":"Matt Nosler","employerName":"Goodwill Industries Of Arkansas, Inc","title":"NOSLER VS. GOODWILL INDUSTRIES OF ARKANSAS, INC. AWCC# H104991 AUGUST 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Nosler_Matt_H104991_20230808.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Nosler_Matt_H104991_20230808.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H104991 \n \n \nMATT C. NOSLER, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nGOODWILL INDUSTRIES OF ARKANSAS, INC., \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nATA WORKERS’ COMPENSATION SI TRUST,  \nINSURANCE CARRIER                                                                                        RESPONDENT                           \n          \nRISK MANAGEMENT RESOURCES,                                                                                                                                  \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED AUGUST 8, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, appeared for the hearing.         \n \nRespondents  represented  by  the  Honorable  Jarrod  S.  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on July 25, 2023, in the present matter for a determination of whether \nthis case should be dismissed for failure to prosecute under the provisions of Ark. Code Ann. §11-\n9-702 (Repl. 2012) and Arkansas Workers’ Compensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the July  25,  2023,  hearing  and  the  documents \ncontained  therein.  The Respondents’ Hearing  Exhibit  Index  consists  of  seven  numbered  pages \nand a cover sheet.  These were marked as Respondents’ Exhibit 1.     \n\nNosler – H104991 \n \n2 \n \nAlso, the entire Commission’s file was made a part of the record.  It is hereby incorporated herein \nby reference.   \n                                                           Procedural History \n On June 15, 2021, the Claimant filed with the Commission a claim for Arkansas workers’ \ncompensation benefits by way of a Form AR-C.  Specifically, the Claimant sustained an admittedly \ncompensable injury to his left ankle, on May 18, 2020, in the form of “a fractured talus and torn \nligaments.”  The Claimant checked the box for additional workers’ compensation benefits solely \nin the form of additional permanent partial disability.          \n  The respondent-insurance-carrier filed an Amended Form AR-2 with the Commission on \nJanuary 19, 2023, accepting this as a compensable injury to the Claimant’s left ankle, in the form \nof a fracture.  Of note, the record shows that the Respondents initially accepted this as a medical \nonly claim in June 2021.   \nSince the filing of the Form AR-C, there has been no appreciable action on the part of the \nClaimant to prosecute his claim for workers’ compensation benefits, or otherwise pursue or bring \nhis claim to a resolution.  \nOn May 9, 2023, the Respondents’ Claims Specialist wrote a letter/motion to the Clerk of \nthe  Commission  asking  that  the  claim  be  dismissed  for  a  lack  of  prosecution  on  the  part  of  the \nClaimant.  The Respondents filed said motion with the Commission on May 10, 2023.  \nThe Commission sent a letter-notice to the Claimant’s last known address on May 11, 2023.  \nPer  this  correspondence,  the  Claimant  was  given  a  deadline  of  twenty  days,  for  filing  a  written \nresponse to  the  Respondents’  motion.    The  notice  was  sent  to  the  Claimant  via  first-class  and \ncertified mail.     \n\nNosler – H104991 \n \n3 \n \nOn  May  31,  2023, the  Claimant  wrote a  letter  to  the  Commission.    Specifically,  the \nClaimant wrote: “I have not requested to prosecute or pursue my claim due to still being under Dr. \nMartin’s care.  My recovery time is 12 months.  I am currently doing physical therapy as well.  I \ndo  not  wish  for  my  case  to  be  dismissed  as  I  will  need  an  additional  surgery  in  the  future  and \nadditional treatment according to Dr. Martin.”   \n Pursuant to a Hearing Notice as of June 14, 2023, the Commission notified the parties that \na hearing was scheduled to address the Respondents’ motion to dismiss this claim due to a lack of \nprosecution.  Said hearing was scheduled for July 25, 2023, at 10:00 a.m., at the Arkansas Workers’ \nCompensation Commission, in Little Rock, Arkansas.   \nThe  documentary  evidence  of  record  shows  that  the  Commission  mailed  the  Notice  of \nHearing to the Claimant via first-class and certified mail.     \n However,  on  the  day  of  the  hearing,  the  United  States  Postal  Service  informed  the \nCommission that they were unable to deliver the Hearing Notice to the Claimant, which was sent \nvia certified mail.  As such, this parcel of mail was returned to the Commission marked “Return \nto Sender, Unclaimed, Unable to forward.”  Of significance, the notice sent to the  Claimant via \nfirst class-mail has not been returned to the Commission to date.     \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Claimant and his wife appeared for the hearing.  The Respondents appeared \nthrough their attorney.   \nCounsel noted that although the Claimant wrote to the Commission saying that he does not \nwish to have his claim dismissed, the Claimant has not identified any issue that requires litigation \nor participation by an Administrative Law Judge/ALJ, and there has been no request for a hearing.  \nCounsel further pointed out that the Claimant has not requested a hearing on his claim for workers’ \n\nNosler – H104991 \n \n4 \n \ncompensation benefits and the claim is over two years in the making since the Form AR-C was \nfiled,  and  he  has  failed  to  prosecute  the  case.    Therefore,  counsel  moved  that  this  claim  be \ndismissed under Ark. Code Ann. §11-9-702 and Arkansas Workers’ Compensation Commission \nRule 099.13. \nThe Claimant said that he had spoken with someone from the Legal Advisors Division and \nnow had some clarity as to what the hearing was about.  He specifically stated that since the issue \ndoes not pertain to his need for future treatment, he does not object to his claim being dismissed.      \nThe record before me proves that the Claimant has not requested a hearing since the filing \nof his claim for workers’ compensation benefits.  The Claimant withdrew his prior objection to the \ndismissal of his claim at the time of the hearing.  After discussing his claim with a legal advisor, \nthe Claimant stated that he does not object to his case being dismissed.  \nAccordingly, after having taken into full consideration the entire record before me, I find \nthat this claim should be and is hereby dismissed, without prejudice to the refiling of it with the \nlimitation  period  specified  by  law.    This  dismissal  is  hereby  made  under  the  provisions  of  Ark. \nCode Ann. §11-9-702 and Rule 099.13 of this Commission. \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.           The  Arkansas  Workers’  Compensation  Commission  has  authority  of  this \nclaim.  \n \n2. The Respondents filed with the Commission, letter-motion to dismiss this \nclaim, for which a dismissal hearing was held. \n \n3. The evidence preponderates that the Claimant failed to timely prosecute his \nclaim for workers’ compensation benefits.  Most notably, the Claimant does \nnot object to his case being dismissed.    \n \n\nNosler – H104991 \n \n5 \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion  to  dismiss  is  hereby  granted  without  prejudice \nper Ark. Code Ann. §11-9-702 and Commission Rule 099.13, to the refiling \nof it within the limitation period specified by law.  \n \nORDER \n \n Per  the  findings  of  fact  and  conclusions  of  law  set  forth  above,  this  claim  is  hereby \ndismissed  pursuant to  Ark.  Code  Ann.  §11-9-702  and  Arkansas Workers’  Compensation \nCommission  Rule  099.13,  without  prejudice  to  the  refiling  of it,  within  the  limitation  period \nspecified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":8761,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H104991 MATT C. NOSLER, EMPLOYEE CLAIMANT GOODWILL INDUSTRIES OF ARKANSAS, INC., EMPLOYER RESPONDENT ATA WORKERS’ COMPENSATION SI TRUST, INSURANCE CARRIER RESPONDENT RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 8, 20...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":["ankle","fracture"],"fetchedAt":"2026-05-19T23:03:38.194Z"},{"id":"alj-H006088-2023-08-08","awccNumber":"H006088","decisionDate":"2023-08-08","decisionYear":2023,"opinionType":"alj","claimantName":"Marcos Sandaval","employerName":"Avila Construction","title":"SANDAVAL VS. AVILA CONSTRUCTION AWCC# H006088 AUGUST 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SANDAVAL_MARCOS_H006088_20230808.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SANDAVAL_MARCOS_H006088_20230808.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H006088 \n \n \nMARCOS SANDAVAL, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nAVILA CONSTRUCTION,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nFIRSTCOMP INSURANCE COMPANY,  \nINSURANCE CARRIER                                                                                        RESPONDENT                           \n          \nMARKEL SERVICE, INCORPORATED                                                                                                                                  \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED AUGUST 8, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the Honorable Daniel Wren, Attorney at Law, Little Rock, Arkansas.  Mr. \nWren waived his participation in the hearing. \n     \nRespondents  represented  by  the  Honorable  Jarrod  S.  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on July 19, 2023 in the present matter for a determination of whether \nthe above-referenced matter should be dismissed for failure to prosecute under the provisions of \nArk. Code Ann. §11-9-702 (d) (Repl. 2012), and Arkansas Workers’ Compensation Commission \nRule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the July  19,  2023,  hearing  and  the  documents \ncontained therein.  The Respondents’ Hearing Exhibit Index consisting of eleven numbered pages \n\nSandaval – H006088 \n \n2 \n \nand a cover sheet was marked as Respondents’ Exhibit 1.  The Respondents’ Exhibit 2 included a \ncopy of the Claimant’s attorney Response to the Motion to Dissmiss, which consisted of two pages. \nAs well, the entire Commission’s file has been made a part of the record.  It is hereby incorporated \nherein by reference.    \n                                                           Procedural History \n On  August  19,  2022,  the Claimant’s  attorney  filed  with  the  Commission  a  claim  for \nworkers’ compensation benefits by way of a Form AR-C.  Specifically, this document specified \nthat the Claimant sustained an injury to his right eye on August 18, 2020.  Per this document, the \nClaimant was nailing wood, and someone left a piece of metal on the floor, and he stepped on it, \nand it went straight into his eye.  The Claimant’s attorney asked for all available benefits under the \nArkansas Workers’ Compensation Act.  \n  The respondent-insurance-carrier filed a Form AR-2 with the Commission on September \n1, 2020, accepting this as a compensable right eye injury.  The carrier has paid both indemnity and \nmedical benefits to and on behalf of the Claimant. \n  Since the filing of the Form AR-C, there has been no appreciable action on the part of the \nClaimant to prosecute his claim for workers’ compensation benefits, or otherwise pursue or bring \nhis claim to a resolution.  \nOn May  9,  2023,  the  Respondents  filed  with  the  Commission  a  Motion  to  Dismiss  for \nFailure to Prosecute, along with a Certificate of Service to the Claimant’s attorney.  \nThe  Commission  sent  a  letter-notice  to  the  Claimant  and  his  attorney  on May  11,  2023.  \nPer  this  correspondence,  the  Claimant  was  given  a  deadline  of  twenty  days,  for  filing  a  written \nresponse to the Respondents’ motion.    The  aforementioned  notice  was  sent  to  the  Claimant  via \nfirst-class and certified mail.     \n\nSandaval – H006088 \n \n3 \n \nPursuant to a Hearing Notice as of June 13, 2023, the Commission notified the parties that \na hearing was scheduled to address the Respondents’ motion to dismiss this claim due to a lack of \nprosecution.    Said  hearing  was  scheduled  for  July  19,  2023, at  12:30  p.m.,  at  the  Arkansas \nWorkers’ Compensation Commission, in Little Rock, Arkansas.   \nOn July 7, 2023, the Claimant’s attorney filed a Response to Motion to Dismiss with the \nCommission.    The Claimant’s  attorney  also  wrote  a  letter  to  the  Commission  that  same  day.  \nSpecifically,  counsel  for  the  Claimant  stated: “The  Claimant,  Marco  Sandaval,  has  filed  his \nResponse to the Respondents’ Motion to Dismiss.”  Pursuant to Ark. Code Ann.  §11-9-702 the \nClaimant  does  not  object  to  the  AR-C  being  dismissed,  without  prejudice,  as  the  statute  of \nlimitations on this claim has not run.”       \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Claimant’s attorney waived his appearance at the hearing.  The Respondents \nappeared through their attorney.   \nCounsel  noted  the  Claimant  has  not  requested  a  hearing  on  his claim  for  workers’ \ncompensation  benefits  since  the  Form  AR-C  was  filed.    Counsel  specifically  noted  that  the \nClaimant’s attorney does not object to the claim being dismissed without prejudice.  Therefore, \ncounsel  essentially  moved  that  this  claim  be  dismissed  under  the  provisions  of  Ark.  Code  Ann. \n§11-9-702 and Arkansas Workers’ Compensation Commission Rule 099.13. \nThe record before me proves that the Claimant has not requested a hearing since the filing \nof  his claim  for  workers’  compensation  benefits.    Hence,  there  are  no  identifiable  issues  to  be \nadjudicated  at  this  time.   The Claimant’s attorney  does  not  object  to  the  claim  being  dismissed \nwithout prejudice.  Accordingly, after having taken into full consideration the entire record before \nme, I find that this claim should be and is hereby dismissed, without prejudice to the refiling of it \n\nSandaval – H006088 \n \n4 \n \nwith the limitation period specified by law.  This dismissal is hereby made under the provisions of \nArk. Code Ann. §11-9-702 and Rule 099.13 of this Commission. \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission, a motion to dismiss this claim \nfor a lack of prosecution, for which a hearing was held. \n \n3. The evidence preponderates that the Claimant failed to timely prosecute his \nclaim   for   workers’   compensation   benefits.   Most   significantly,   the \nClaimant’s attorney does not object to this claim being dismissed without \nprejudice.    \n \n4. Appropriate Notice of the dismissal hearing was had on all parties to their \nlast known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion  to  dismiss  is  hereby  granted  without  prejudice \npursuant to Ark. Code Ann. §11-9-702 and Commission Rule 099.13, to the \nrefiling of it within the limitation period specified by law.  \n \nORDER \n \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. §11-9-702 and Arkansas Workers’ Compensation \nCommission Rule 099.13, without prejudice to the refiling of it, within the limitation period  \nspecified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge \n\nSandaval – H006088 \n \n5","textLength":7887,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H006088 MARCOS SANDAVAL, EMPLOYEE CLAIMANT AVILA CONSTRUCTION, EMPLOYER RESPONDENT FIRSTCOMP INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT MARKEL SERVICE, INCORPORATED THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED AUGUST 8, 2023 Hearing held before ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:03:40.266Z"},{"id":"alj-G907485-2023-08-07","awccNumber":"G907485","decisionDate":"2023-08-07","decisionYear":2023,"opinionType":"alj","claimantName":"Kenneth Evans","employerName":"Forest Heights Stem Academy","title":"EVANS VS. FOREST HEIGHTS STEM ACADEMY AWCC# G907485 AUGUST 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/EVANS_KENNETH_G907485_20230807.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EVANS_KENNETH_G907485_20230807.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No G907485 \n \nKENNETH EVANS, EMPLOYEE       CLAIMANT \n \nFOREST HEIGHTS STEM ACADEMY, EMPLOYER        RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION,            \nCARRIER/TPA                   RESPONDENT \n \n \nOPINION FILED 7 AUGUST 2023 \n \n \nOn  hearing  before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, 8 February 2023, Little Rock, Pulaski County, Arkansas. \n \nMs. Laura Beth York, Attorney-at-Law of Little Rock, Arkansas, appeared for the claimant. \n \nMs. Melissa Wood, Attorney-at-Law of Little Rock, Arkansas, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 8 February 2023 in Little Rock, Arkansas, after \nthe  parties  participated  in  a  prehearing  telephone  conference  on  29  November  2022.  \nA Prehearing Order, admitted to the record without objection as “Commission’s Exhibit No \n1,” was  entered  on that  same  day. The  Order  stated  the following ISSUES  TO  BE \nLITIGATED: \n1.   Whether  the  claimant is  permanently  and  totally  disabled  or,  in  the  alternative, \nentitled to wage loss disability benefits. \n2.  Whether the claimant is entitled to a controverted attorney’s fee. \nAll other issues were reserved. \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n\nK. EVANS- G907485  \n2 \n \n2.  An employee/employer/carrier relationship existed on 9 October 2019 and at all other \ntimes relevant to this claim. \n3.  The respondents accepted this claim as compensable and paid medical and indemnity \nbenefits,  including  permanent  partial  disability  benefits  pursuant  to  an  impairment \nrating  of  twenty  percent  (20%)  to  the  body  as  a  whole,  as  assigned  by  Dr.  Shahryar \nAhmadi. \n4.  The parties will stipulate to the claimant’s average weekly wage. \nTwo (2)  WITNESSES provided sworn testimony—the claimant spoke on his own behalf \nand the respondents called Mr. Ronald Self, an employee for the Little Rock School District. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law under \nArk. Code Ann. § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The previously noted stipulations are accepted as fact. \n3. The claimant failed to prove, by a preponderance of evidence, that he is entitled to any \nadditional benefits. \n4. Consistent with the above, the claimant’s attorney is not entitled to a fee. \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE                                                                                                        \nA. Claimant on Direct-Examination by Ms. York: \nClaimant, Kenneth Evans, is a  68-year-old male who graduated high school in 1972 \nand first worked a job hanging steel.  He left that industry for retail work for about five (5) \nyears,  eventually  becoming  an  assistant  store  manager  for  K-Mart.  Mr.  Evans  then  sold \ninsurance for Prudential for a time.  He performed other jobs over time, before beginning a \njob at Lowe’s Home Improvement, where he moved up the ranks over his thirteen (13) years \n\nK. EVANS- G907485  \n3 \n \nof  employment,  eventually  becoming  an  assistant  store  manager.  [TR  at  11-15] After \nsuffering a back injury that brought some work restrictions, the claimant’s responsibilities \nchanged and he ultimately left employment at Lowe’s. [TR at 16]   \nThe  claimant  then  worked  as  a  substitute  teacher  at  Watson  Chapel  School.  He \napplied  for  and  was  approved for  Social  Security  Disability  related to  the  back  injury,  but \nwas still able to work.  Mr. Evans completed his degree around that time, earning a bachelor’s \ndegree  in  industrial  technology  from  the  University  of  Arkansas  at  Pine  Bluff  in  2009. \n[TR at 17]  He then began working as a paraprofessional for the Pine Bluff School District. \n[TR at 19] His work responsibilities changed over time from assisting teachers with general \nclassroom  work   to   helping  particular   students, one-on-one.  Mr.  Evans  worked   as   a \nparaprofessional with special needs children for about fifteen (15) years. [TR at 20] He also \noperated an ice cream truck on the side at some point during this time. [TR at 21] \nMr.  Evans  eventually  moved  to  Little  Rock  and  sought  work  with  the  Little  Rock \nSchool District, where he was hired as a paraprofessional at Don Roberts Elementary School. \nHe was tasked with providing one-on-one assistance to a particular student. [TR at 22] As \nthat  student  progressed  through  school,  the  claimant  moved  along  also, following  him  to \nForest Heights STEM Academy.  \nOn  9  October  2019,  the  claimant  was  assisting other  staff in preparing for the \nend-of-day  student  pickups.  [TR  at  24.]  He  described  how  they  put  out  traffic  cones  and \ndirected vehicles in an orderly manner. Mr. Evans noticed that one vehicle was, essentially, \nnot minding the traffic control rules.  He attempted to get the vehicle to stop, when it ran \nover a traffic cone and a side mirror struck Mr. Evans’ shoulder. [TR at 24]  Evans managed \nto keep his feet, and the vehicle moved on down the line. [TR at 25] \nAccording  to  the  claimant,  he was  on  his way  to  report  the  incident  to  an  assistant \nprincipal when the driver “got out of his truck, straightened his mirror up, and then, walked \n\nK. EVANS- G907485  \n4 \n \nover to me and said, ‘Don’t you ever hit my truck again,’ and swung at me, which I moved \nback and didn’t allow him to hit me.” [TR at 25]  Security apparently arrived and separated \nthe two (2) before any further scuffling went on, and Mr. Evans reported to the school nurse \nthat  he  thought  he  would  be  okay.  [TR  at  26]  The  claimant  was  in  increasing  pain  after \ngetting home and eventually presented to the emergency department.  \nMr.  Evans  stated  that  his  injury  was  initially  accepted  as  compensable  by  the \nrespondents. Id.  After  an MRI in  early  November, he  was  scheduled  for surgery  with  Dr. \nSchock on 14 November 2019.  According to Mr. Evans, the procedure with Dr. Schock did \nnot provide relief. [TR at 27] He disputed the accuracy of Dr. Schock’s release with a zero \npercent  (0%) impairment  rating  on  2  April  2020.  After  a  change  of  physician  request,  the \nclaimant saw Dr. Ahmadi at UAMS, who ordered another MRI. Id.  \nThe  claimant  testified  that  the  MRI  revealed  that  the  earlier  surgery  failed.  Dr. \nAhmadi recommended a reverse arthroplasty, and that procedure was performed in August \n2020. [TR at 28]  Mr. Evans explained that Dr. Ahmadi’s notes first reflected his report of a \nshoulder  dislocation  on  27  October  2020.  The  first  dislocation  occurred,  according  to  the \nclaimant,  when  he  was  sweeping  the  floor  in  his  home.  Sweeping  was  not  outside  of  any \nphysician-ordered activity restrictions. Id. He was able to move the shoulder back into socket \non his own. [TR at 29] \nDr. Ahmadi eventually found the claimant to be at maximum medical improvement \n(MMI) on 8 December 2020. He assigned a twenty percent (20%) impairment rating to the \nbody as a whole and a permanent restriction of no lifting over twenty-five (25) pounds. Id. \nThe claimant continued to treat subsequent to additional dislocations. \nDr. Ahmadi left UAMS at some point and the claimant underwent a revision surgery \nperformed by Dr. Rabinowitz on 29 November 2021. [TR at 30]  Mr. Evans said that he did \nnot recall Dr. Rabinowitz releasing him without restrictions on 12 July 2022, see Resp. Exh. \n\nK. EVANS- G907485  \n5 \n \nNo 1 at 10, but agreed that the doctor ordered a functional capacity evaluation (FCE). Id. He \nwent on to state that the carrier did not approve the FCE and that Dr. Rabinowitz gave a \npermanent thirty (30) pound lifting restriction. [TR at 31] \nMr. Evans testified that between 9 October 2019, the date of the vehicle incident, and \nJuly of 2022, he was not offered any light-duty work. Id. Nor did he perform any work for the \nrespondent during that time. He explained that he had provided notice of his intent to retire \nand that his retirement would have gone into effect in the summer of 2020. [TR at 32]  \nHe  stated  that the  vehicle  incident  and  subsequent  shoulder  issues interrupted  his \nplans. He further explained that he intended to build a business in retirement performing \nhandyman  work.  According  to  the  testimony,  Mr.  Evans  has  experience  with  electrical, \nplumbing, and woodworking. “I do all of that and those items that are not – that did not have \nto be checked by local, city, to be inspected.” [TR at 33.] Installing a dishwasher or garbage \ndisposal were offered as examples of the general work he could handle. He intended to pursue \nthis work full-time in his retirement from the school district. \nMr. Evans testified that he did not perform any handyman work while he was being \ntreated for his shoulder injury. [TR at 34] Instead, he said, he did not start performing his \nhandyman  work  until  his  July  2022  release.  According  to  the  testimony,  he  is  unable  to \nperform all of the work he might have been able to perform before the shoulder injury. He \nsaid that he has had to enlist the help of others to assist in performing certain jobs because \nof his shoulder issues. \nWhen  asked  whether  he  could  pick  up  a  gallon  of  milk  out  of  the  refrigerator,  he \nresponded, “I definitely cannot do that.” [TR at 35] Regarding how his shoulder feels on any \ngiven day, Mr. Evans stated, “I still get some pain, just a sudden or sharp pain occasionally. \nIt doesn’t hurt consistently, but I have pain, I have some soreness, if I just do some things. It \ndoes get sore. Basically, that’s it, because I try just pick things up, immediately. I just know \n\nK. EVANS- G907485  \n6 \n \nnot to do a lot of things; so I won’t try.” Id. He went on to restate that some work now requires \nhiring  additional  help  when  he  could  have  handled  the  work  on  his  own  in  the  past. \n[TR at 36] \nMr. Evans then stated again that he was not offered any light-duty work during the \n2019-2020 school year. [TR at 37] He further stated that he had no communication from the \nschool district after filing, through counsel, his Prehearing Questionnaire. [TR at 38] He did, \nhowever, eventually receive a letter from the school district, dated 7 December 2022, offering \nhim light-duty work. [TR at 39] The claimant said that he thought it was odd to be offered \nwork after his retirement date. He did not respond to the letter.   \nB. Claimant on Cross-Examination by Ms. Wood: \nMr. Evans discussed his previous back injury with respondents’ counsel, saying that \nhe started receiving social security disability payments sometime in the early ‘90s. [TR at 40] \nHe  treated  for  that  injury  three (3) to  four (4) years  and  received  a  permanent  lifting \nrestriction of fifty (50) to sixty (60) pounds. [TR at 41] He confirmed that while his previous \nwork  running  an  ice  cream  truck  was  conducted  as  a  formal  business  registered  with  the \nSecretary of State’s office, his handyman work was not.  \nHe clarified that he had actually taken on some work since his shoulder injury, taking \na two-week  painting  job  and  occasionally  fixing  someone’s  faucet  or  “things like that.” \n[TR at 42]  \nAfter  his  surgery  in  2021,  no  additional  therapies  were  ordered,  though  Mr.  Evans \nhas  exercise  bands  at  his  home  and  continues  to  use  them.  He  maintains  no  additional \nprescriptions since the procedure. [TR at 43] \nRegarding work at the school, Mr. Evans explained that he “actually, did go back to \nwork in the spring semester of ’20, but COVID hit... we did have to go back to the school, but \nthere were no students; so we were considered working.” [TR at 44] \n\nK. EVANS- G907485  \n7 \n \nThe  claimant  offered  that  he  could still  work  for  the  school  district,  just  not  in  his \nprevious one-on-one roll. [TR at 46]  But he said that he had not spoken with anyone at the \nschool district about continuing work in any capacity. When asked “what’s keeping you from \nworking now, and you said, because of my prior plans meaning you meant to retire and do \nmore home repair, is that correct?” he answered, “yes.” Id.  He  confirmed  that  he  thought \nabout getting a contractor’s license and that he thought about selling cars. He also thought \nabout pursuing computer-aided drafting. \nMr. Evans stated that he spends most of his days filled with leisurely activities, such \nas golf or fishing, chores around the house, and spending time with family. [TR at 47] \nC.  Respondent Witness Ronald Self: \nMr. Ronald Self took the stand for the respondents. He explained that he is the Little \nRock  School  District’s  director  for  safety,  security,  and  risk  management.  [TR  at  49] \nOverseeing workers’ compensation matters falls within his office’s responsibility. He stated \nthat he was aware of Mr. Evans’ case. Mr. Self  confirmed that the respondents had not heard \nany  response  from  the  claimant  since  a  letter  was  sent  offering  him  a  return  to  work. \n[TR at 50] He explained that work within the claimant’s restrictions would be available and \nthat he could continue working as a paraprofessional, although the one-on-one role would be \noutside the scope of his restrictions. He went on to say that the work would pay the same as \nbefore Mr. Evans’ injury and that positions were open at the time of the hearing. [TR at 51] \n D.  Examination by the Commission: \n A brief explanation was offered to clarify some dates relating to Respondent’s Exhibit \nNo 2: \nMs.  York:    Your  Honor,  there  is  a  little  bit  of  confusion  with \nregard   to   the   dates.   We   understand   that   the   dates.   We \nunderstand  that the  Respondent  document,  Exhibit  2,  page  2, \n\nK. EVANS- G907485  \n8 \n \nand it has a date up here that says August 26, 2020, but it does \nshow that his last date of work would be June 30\nth\n, 2020. It is \nMr.   Evans   testimony   that   he,   actually,   submitted   this \npaperwork to the Little Rock School District in August of 2019, \nbefore the October 2019 injury. He was giving them notice that \nhe would work through the school year, and then, that would be \nthe end and he would retire. \nMs. Wood:  Judge, I don’t disagree with when it was first applied \nfor. I think this document, though, shows when it was approved. \nSo that would have been for August of ’20.  [TR at 52]  \nWith that, the testimony concluded, and the case was submitted.   \nV.  ADJUDICATION \n The stipulated facts, as agreed during the prehearing conference, are outlined above.   \nA.   The  Claimant  Failed  to  Prove, by  a  Preponderance  of  the Evidence, that  he Is \nEntitled to Additional Benefits \n \n There is no question in this matter as to whether the claimant suffered a compensable \ninjury. He was injured, treated, assigned an impairment rating, paid benefits consistent with \nthat  rating,  and  eventually  given  a  full  duty  release. He  claims,  however,  entitlement  to \nadditional permanent benefits and/or wage loss benefits; but the evidence presented does not \nsupport that finding. \n Permanent  total  disability  is  defined  as  the  inability,  because  of  a  compensable \ninjury, to  earn  any  meaningful  wages  in  the  same  or  other  employment.   Ark.  Code  \nAnn. § 11-9-519(e)(1). The employee must prove an inability to earn any meaningful wage. \nArk. Code Ann. § 11-9-519(e)(2).  \n\nK. EVANS- G907485  \n9 \n \n Mr. Evans was injured in the fall term of 2019 and retired at the end of the spring \nterm in 2020. He failed to present any testimony as to a physician’s finding that he was \nunable to earn any wages because of his injury. He was, in fact, released to full duty without \nrestrictions in February of 2022 before later being assigned maximum medical improvement \nand a thirty-pound, overhead lifting restriction in June of 2022.  \nEvans did not controvert the respondents’ testimony that full-time  work within  his \nrestrictions was available  to  him through  the school  district  at  the same rate  of  pay  as  he \nreceived  before  his  injury  and  chosen  retirement  date.  Nor  did  he  provide  any  proof  of  an \ninability to earn any wages after his retirement from the school district or through any other \nroute  of  employment.  He  essentially  stated  that  he  had  not  moved  forward  with  his \npost-retirement  thoughts  or  plans  for  starting  a  handyman  and  repairs  business  because \nlifting  restrictions  could  require  hiring  additional  personnel.  On  this  record  I  find  that  he \nfailed to meet his burden for additional permanent disability benefits. The record is similarly \nshort on evidence supporting an entitlement to any wage loss benefits. \n B.  Attorney’s Fee \n In accordance with the above, the claimant is not entitled to an attorney’s fee. \nVI.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":17437,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No G907485 KENNETH EVANS, EMPLOYEE CLAIMANT FOREST HEIGHTS STEM ACADEMY, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, CARRIER/TPA RESPONDENT OPINION FILED 7 AUGUST 2023 On hearing before Arkansas Workers’ Compensation Commission (AWCC) Administra...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:2","denied:3"],"injuryKeywords":["back","shoulder"],"fetchedAt":"2026-05-19T23:03:31.908Z"},{"id":"alj-G806325-2023-08-03","awccNumber":"G806325","decisionDate":"2023-08-03","decisionYear":2023,"opinionType":"alj","claimantName":"Williamd Bergthold","employerName":"City Of Siloam Springs","title":"BERGTHOLD VS. CITY OF SILOAM SPRINGS AWCC# G806325 AUGUST 3, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BERGTHOLD_WILLIAMD_G806325_20230803.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BERGTHOLD_WILLIAMD_G806325_20230803.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. G806325 \n \nWILLIAM D. BERGTHOLD, Employee                                                                   CLAIMANT \n \nCITY OF SILOAM SPRINGS, Employer                                                            RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, Carrier                                                    RESPONDENT \n \n \n OPINION FILED AUGUST 3, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by MARY K. EDWARDS, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On July 13, 2023, the above captioned claim came on for a hearing at Springdale, Arkansas.  \nA pre-hearing conference was conducted on June 1, 2023, and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n            1.   Entitlement to attorney’s fees. \n All other issues are reserved by the parties. \n The claimant contends that “He is entitled to payment of attorney’s fees for temporary total \ndisability. The period of temporary total disability was a result of his surgery by Dr. Kelly. Additional \n\nBergthold-G806325 \n2 \n \n \ntreatment was controverted by the respondent and was the subject of a previous hearing. Claimant \nreserves all other issues.”  \n The  respondents contend that “Claimant’s attorney is not entitled to an attorney’s fee. \nClaimant is currently treating with Dr. James Kelly. This case was previously litigated on the issue of \nadditional  medical  treatment.  Following  the  Opinion,  respondents  authorized  treatment  with  Dr. \nKelly.  Dr.  Kelly  then  recommended  surgery.  Respondents  immediately  authorized  the  surgery. \nClaimant’s temporary total disability period is due to the surgery performed by Dr. Kelly. Respondents \ncontend that they never controverted the surgery recommendation. Therefore, claimant’s attorney is \nnot  entitled  to  a  fee  on  the  temporary  total  disability  following  the  surgery  or  any  other  indemnity \nbenefits that may arise therefrom.” \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the  arguments of counsel, \nthe following findings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on June 1,    \n 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.    The stipulations by counsel made during oral argument are hereby accepted as fact.  \n 3.        Claimant's  attorney  is  entitled  to  an  attorney  fee  on  temporary  total  disability  benefits \n previously paid to claimant as a result of his wrist surgery in 2023. \n \n FACTUAL BACKGROUND \n Claimant suffered a compensable injury to his right upper extremity on August 23, 2018. After \nproviding benefits to claimant for over two years, respondent took the position in 2022 that further \n\nBergthold-G806325 \n3 \n \n \nmedical treatment requested by claimant was not reasonably necessary.  As a result, claimant’s attorney \nfiled a request for a hearing on claimant’s entitlement to additional medical benefits, and in an Order \nentered on August 11, 2022, this Court found that claimant was entitled to additional treatment.  That \nOrder was not appealed, and claimant returned to Dr. James Kelly’s care, which included surgery on \nhis  right  wrist.    While  claimant  was  healing  from  the  surgery,  respondent  resumed  payment  of \ntemporary total disability (TTD) benefits.    \n Claimant’s attorney believed  she  was  due  an attorney’s fee  on  the  indemnity  benefits,  and \nrespondent  withheld from claimant’s TTD benefits the  sum  that  would  reflect  one-half  of  the \nattorney’s fees.  The parties requested oral argument to set forth their positions on the respondent’s \nresponsibility for the other half of the attorney’s fee, as they did not believe there were any material \nfacts in dispute.  After hearing their arguments and reviewing the documents, I concur that the material \nfacts as set out in the previous paragraph are not in dispute.  \n \nADJUDICATION \n \n The question presented in this case is whether respondent is liable for one-half of the \nattorney’s fee as per A.C.A §11- 9-715.   The pertinent parts of that statute are:  \n \n(a)(1)(B) Attorney's fees shall be twenty-five percent (25%) of compensation \nfor  indemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee. Attorney's fees shall not be awarded on medical benefits or \nservices except as provided in subdivision (a)(4) of this section. \n... \n(2)(B)(i) In  all  other  cases  whenever  the  commission  finds  that  a  claim  has \nbeen controverted, in whole or in part, the commission shall direct that fees for \nlegal services be paid to the attorney for the claimant as follows: One-half (½) \nby the employer or carrier in addition to compensation awarded; and one-half \n(½)  by  the  injured  employee  or  dependents  of  a  deceased  employee  out  of \ncompensation payable to them. \n(ii) The  fees  shall  be  allowed  only  on  the  amount  of  compensation  for \nindemnity benefits controverted and awarded.   \n \n\nBergthold-G806325 \n4 \n \n \n Respondent contends that because there was no award of temporary total disability benefits \nin this case in the 2022 order, and because it paid TTD benefits in 2023 during the post-surgery healing \nperiod without being ordered to do so, imposing the one-half of the attorney fee on those indemnity \nbenefits is not appropriate.  Claimant maintains that without the work his attorney did to secure his \nmedical benefits in 2022, he would not have had the surgery and would not have  been in a healing \nperiod to qualify for TTD.\n1\n   \n This issue has been before both the Workers’ Compensation Commission and the Arkansas \nCourt  of  Appeals,  and  both  have  found  that  under  similar  circumstances,  an  attorney  fee  is \nappropriate, see Walmart Stores, Inc. v. Brown, 73 Ark. App. 174, 40 S.W. 3rd 835 (2001). In Brown, the \nrespondent initially accepted a claim and paid some compensation benefits. However, at a pre-hearing \nconference the employer controverted claimant’s entitlement to temporary partial disability benefits \nand a hearing was scheduled. Approximately one month before the scheduled hearing, the employer \nindicated  that  it  would  accept  the  temporary  partial  disability  and  pay  appropriate  benefits,  but \nrefused  to  pay  an  attorney  fee  on  the  temporary  partial  disability  benefits.  The  Court  of  Appeals \naffirmed the Commission’s decision to award an attorney fee. In doing so, the Court stated:  \nThe Commission interpreted the requirements of Section 11-9-715(a)(2)(B)(ii) \nto be that where an employer controverts an injured employee’s entitlement to \ncertain benefits, but later accepts liability prior to a hearing on the merits, the \nemployee’s attorney may still request a hearing for an attorney’s fee on those \ncontroverted benefits. The Commission found that when there is no dispute \nthat the employer controverted benefits but then paid the benefits on which \nan attorney fee is sought that the employee has established an award of those \nbenefits for purposes of the employee’s attorney seeking an attorney’s fee \nunder Ark. Code Ann. Section 11-9-715(a)(2)(B)(ii). The Commission found \nno  requirement  in  Section  11-9-715(a)(2)(B)(ii)  requiring  that  an  award  of \n \n1\n Respondent’s attorney conceded this was true in this exchange:  \nThe Court:...if I had not issued an Order on August 11, 2022, directing that he can return to [Dr.] Kelly, then there \nwould have been no surgery.  \n \nMs. Edwards: I mean, probably not; no. (TR. 18)  \n\nBergthold-G806325 \n5 \n \n \ncontroverted benefits must precede the employer’s payment of benefits for the \nclaimant’s  attorney  to  be  entitled  to  a  fee.  We  agree  and  hold  that  the \nCommission’s findings are supported by substantial evidence.   \n \n The Court went on to state that it had long been recognized that making an employer liable \nfor  an  attorney  fee  serves  a  legitimate  social  purpose  such  as  discouraging  oppressive  delay  in \nrecognition of liability, deterring arbitrary or capricious denial of claims, and ensuring the ability of \nclaimants to obtain adequate and competent legal representation. “If the fundamental purpose of an \nattorney  fee  is  to  be  achieved,  it  must  be  considered  that  the  real  object  is  to  place  the  burden  of \nlitigation expenses upon the party which made it necessary.” Cleek v. Great Southern Metals, 335 Ark. \n342,  981  S.W.  2d  529  (1998).  The  Court  went  on  to  note  that  if  the  claimant  in Brown “had  not \nemployed  counsel  to  assist  her,  it  was  reasonable  to  conclude  that  her  claim  for  temporary  partial \ndisability benefits would not have been properly presented and protected.” Likewise, in this case, if \nclaimant’s counsel had declined to assist him in approval of the surgery to his right wrist because there \nwere no indemnity benefits from which she could be paid, it is reasonable to conclude that he would \nhave never been entitled to temporary total disability benefits.\n2\n  \n Based  upon  the  decision  in Brown,  I  find  that  claimant's  attorney  is  entitled  to  an attorney \nfee on the temporary total disability benefits which were paid as a result of claimant's wrist surgery. \n \nORDER \n \nClaimant's attorney is entitled to an attorney’s fee on temporary total disability benefits paid \nto claimant as a result of his wrist surgery in 2023. \nRespondents  are  liable  for  payment  of  the  court  reporter's  charges  for  preparation  of  the \nhearing transcript in the amount of $ 461.25.    \n \n2\n I note that the attorney in Brown did not have to prepare for and attend a hearing to be entitled to the attorney’s fee; \nclaimant’s attorney appears to have done more work in this case to secure benefits for her client.  \n\nBergthold-G806325 \n6 \n \n \nIT IS SO ORDERED. \n    \n \n                                                                                           \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":10827,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G806325 WILLIAM D. BERGTHOLD, Employee CLAIMANT CITY OF SILOAM SPRINGS, Employer RESPONDENT ARKANSAS MUNICIPAL LEAGUE, Carrier RESPONDENT OPINION FILED AUGUST 3, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, A...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["wrist"],"fetchedAt":"2026-05-19T23:03:27.764Z"},{"id":"alj-H205665-2023-08-03","awccNumber":"H205665","decisionDate":"2023-08-03","decisionYear":2023,"opinionType":"alj","claimantName":"Alejandro Naverrete","employerName":"Hixson Lumber Sales, Inc","title":"NAVERRETE VS. HIXSON LUMBER SALES, INC. AWCC# H205665 AUGUST 3, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Naverrete_Alejandro_H205665_20230803.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Naverrete_Alejandro_H205665_20230803.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H205665 \n \n \nALEJANDRO MORALES NAVARRETE, DEC’D, \n EMPLOYEE CLAIMANT \n \nHIXSON LUMBER SALES, INC., \n EMPLOYER RESPONDENT \n \nUNION STANDARD INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 3, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  May  10,  2023,  in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant  represented  by  Ms.  Angela  Galvis  Schnuerle,  Attorney  at  Law,  North  Little \nRock, Arkansas. \n \nRespondents  represented  by  Ms.  Karen  H.  McKinney,  Attorney  at  Law,  Little Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On May 10, 2023, the above-captioned claim was heard in Little Rock, Arkansas.  \nA  pre-hearing  conference  took  place  on  February  7,  2023.    The  Prehearing  Order \nentered  on  February  8,  2023,  pursuant  to  the  conference  was  admitted  without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed that  the \nstipulations, issues, and respective contentions, as amended, were properly set forth in \nthe order. \nStipulations \n The  parties  discussed  the  stipulations  set  forth  in  Commission  Exhibit  1.    With \nadditional ones reached at the hearing, they are the following, which I accept: \n\nNAVERRETE – H205665 \n \n2 \n1. The     Arkansas     Workers’     Compensation Commission     (the \n“Commission”) has jurisdiction over this matter. \n2. The  employee/employer/carrier  relationship  existed on or  about \nJuly  23,  2022,  when Claimant  sustained  compensable  injuries  that \nresulted in his death. \n3. Respondents  accepted  Claimant’s  fatal  injuries  as  compensable \nand  paid  benefits  pursuant  thereto,  including  statutory  funeral \nexpenses  and  the  no-dependency  fee  to  the  Death  &  Permanent \nTotal Disability Trust Fund. \n4. Claimant’s  average  weekly  wage  of  $814.97  entitles  him  to  a  total \ndisability compensation rate of $544.00. \n5. None   of   the   alleged   dependents   were   wholly   and   actually \ndependent upon  Claimant  for  purposes  of  Ark.  Code  Ann.  § 11-9-\n527(c) (Repl. 2012). \n6. Both  Simon  Navarrete  Rosas  and  Ugarit  Navarrete  Rosas  at  one \ntime  or  another,  while  living  in  the  home  of  Alejandro  Morales \nCallentano,  rented  a  room  from  Mr.  Callentano  and  paid  rent  and \nutilities. \nIssues \n The  parties  discussed  the  issues  set  forth  in  Commission  Exhibit  1.    After \namendments at the hearing, the following were litigated: \n\nNAVERRETE – H205665 \n \n3 \n1. Whether Claimant’s father, Alejandro Morales Callentano, mother, Arianna \nMedai  Navarrete  Rosas,  and  siblings  Grace  Medai  Morales  Navarrete, \nEmily  Gelet  Morales  Navarrete,  and  Evelyn Arleth  Morales  Navarrete  are \nentitled to receive partial dependency benefits under Ark. Code Ann. § 11-\n9-527(i)(1) (Repl. 2012), and in what amount. \n2. Whether  Claimant’s  counsel  is  entitled  to  a  controverted  attorney’s  fee \nunder Ark. Code Ann. § 11-9-715 (Repl. 2012). \n3. Whether Claimant should be sanctioned under Ark. Code Ann. § 11-9-717 \n(Repl. 2012) in connection with this claim. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, following  amendments at the hearing, \nread as follows: \n Claimant: \n1. Claimant’s  parents  and  siblings  contend  that  they  should  be  considered \ndependents  of  him  under  the  Arkansas  Workers’  Compensation  Act \nbecause they relied on him to help support the entire family. \nRespondents: \n1. Respondents  contend  that  Claimant  died  on  July  23,  2022,  without  any \ndependents.  He was 18 years old at the time of his injury and death; that \nhe  had  just  begun  working  for  Respondent  employer  on  June  23, 2022; \n\nNAVERRETE – H205665 \n \n4 \nthat  he  was  still  a  high  school  student;  and  that  his  parents  and  siblings \nwere not wholly and actually dependent upon him for support. \n2. In  addition,  Respondents  contend  that  they  are  entitled  to  sanctions \nconsisting of their expenses due to the filing of this claim and request for a \nhearing.    Arkansas  Code  Annotated  Section  11-9-717(a)(2)  (Repl.  2012) \nprovides: \nThe signature of an attorney or party constitutes a certificate \nby him or her that: \n \n(A) He  or  she  has  read  the  claim,  request  for  benefits, \nrequest   for   additional   benefits,   controversion   of \nbenefits,  request  for  a  hearing,  pleading,  motion  or \nother paper; \n \n(B) To the best of his or her knowledge, information, and \nbelief   formed   after   reasonable   inquiry,   it   is   well \ngrounded in fact and is warranted by existing law or a \ngood faith argument for the extension, modification, or \nreversal of existing law; and \n \n(c) It is not interposed for any improper purpose, such as \nto  harass  or  cause  unnecessary  delay  or  needless \nincrease in the cost of litigation. \n \nRespondents contend that this request for benefits and request for a hearing is in \nviolation  of  § 11-9-717  in  that  a  reasonable  inquiry  into  the  facts  demonstrates \nthat Claimant’s family was not wholly or even partially dependent upon him at the \ntime  of  his  death.    Claimant’s  father  earned  gross  wages  of  $81,943  in  2021.  \nWhen  only  his  take  home  pay  for  the  12  months   immediately  preceding \nClaimant’s death is calculated, the father brought home a total of at least $65,000 \nas the full wages from June 2021 were not included in the payroll records to be \n\nNAVERRETE – H205665 \n \n5 \nsubmitted into evidence.  The majority of the family’s household expenses were \npaid out of the father’s bank account.  For the 12 months immediately preceding \nClaimant’s   death,   the   family’s   expenses   from   this   account   totaled   only \n$55,946.48.    In  addition  to  the  father’s  income  and  bank  account,  Claimant’s \nparents maintained a separate bank account that during the one-year preceding \nClaimant’s death held as much as $45,061.52 but no less than $7,986.17.  The \norigins  of  the  money  in  this  account  are  unknown,  but  not  necessary  when the \nexpenditures  from  this  account also  show  that  it  was used  for the benefit  of  the \nfamily’s  household  expenses  as  well.    The  mere  fact  that  Claimant  was  paid \ndisability  benefits  from  the  state  or  that  he  worked  for  Respondent  employer  is \nnot  sufficient  to  formulate  a  reasonable  belief  that  the  family  was  wholly  and \nactually  dependent  upon  Claimant  for  this  income.    A  review  of  Claimant’s  total \nincome from his disability checks shows that he was paid approximately $1,735 \nfrom  January  2021  through  June  2021.    (The  images  are  blurry  and  difficult to \nread, thus an approximate amount is used.)  At best, only $300 from this income \nwas never deposited into Claimant’s checking account.  The testimony from both \nparents showed that Claimant turned this money over to them, and that they, in \nturn, doled out his money to him to pay for band uniforms, clothing, shoes, band \ntrips,  food,  and  other  normal  expenses  of  a  high  school  student.    In  addition, \nClaimant’s  mother  testified  that  Claimant  attended  his  junior  prom  and  had \nexpenses for his clothing, food, date, and limousine.  It is reasonable to conclude \nthat  this  missing  $300  in  addition  to  supplemental  money  from  the  parents  was \n\nNAVERRETE – H205665 \n \n6 \nnecessary  to  cover  his  expenses.  Claimant’s  paychecks  from  Respondent \nEmployer  totaling  $3,985.34  were  all  directly  deposited  into  his  account.    His \nincome  from  his  earnings  and  disability  checks  totaled  $5,775.80.    Out  of \nClaimant’s  checking  account,  a  grand  total  of  $657.00  was  debited.    The  family \nhas not and cannot offer any credible evidence that any of this money was used \nin  any  manner  to  pay  household  expenses  or  support  them.    Finally, although \nClaimant had just turned 18, he was still a high school student living at home with \nhis  parents.    Thus,  even  assuming  his  family  used  any  of  his  money to  pay \nhousehold expenses, he received free rent and utilities, the use of the 2019 GMC \ntruck  that  they  had  purchased  for  him,  and  the  gas  and  insurance  to  cover  the \ntruck  from  the  parents.    Claimant  was  wholly  and  actually  dependent  upon  his \nparents—not the other way around.  See Butler v. Labor Finders, 2006 Ark. App. \nLEXIS  104,  2006 WL  235088.\n1\n  Therefore,  based  on a  reasonable  inquiry  of  the \nfacts, reasonable persons cannot conclude that Claimant’s family has a claim for \ndependency  benefits  from  his  death.    Accordingly,  Respondents  contend  that \nthey are entitled to their costs and expenses due to the filing of this claim. \n \n1\nThis is an unpublished opinion.  Per Ark. Sup. Ct. R. 5-2(c): \n \nOpinions of the Supreme Court and Court of Appeals issued before July 1, \n2009,  and  not  designated  for  publication  shall  not  be  cited,  quoted,  or \nreferred  to  by  any  court  or  in  any  argument,  brief,  or  other  materials \npresented  to  any  court  (except  in  continuing  or  related  litigation  upon  an \nissue such as res judicata, collateral estoppel, or law of the case). \n  \n\nNAVERRETE – H205665 \n \n7 \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \ndeposition  transcripts,  and  other  matters  properly  before  the  Commission,  and  having \nhad an opportunity to hear the testimony of the hearing witnesses and to observe their \ndemeanor,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3.  The preponderance of the evidence establishes that Claimant’s father and \nmother,  Alejandro  Morales  Callentano  and  Arianna  Medai  Navarrete \nRosas,  were  partially  dependent  upon  Claimant  in  the  amount  of  ten \npercent  (10%)  each  under  Ark.  Code  Ann.  § 11-9-527(i)(1)  (Repl.  2012).  \nAccordingly,   per   § 11-9-527(c )(4)  ,   they  are   each   entitled   to   weekly \nbenefits  amounting  to  two  and  one-half  percent  (2.5%)  of  Claimant’s \naverage weekly wage, or $20.37. \n4. The  preponderance  of  the  evidence  establishes  that  Claimant’s  siblings \nGrace  Medai  Morales  Navarrete,  Emily  Gelet  Morales  Navarrete,  and \nEvelyn   Arleth   Morales   Navarrete,   Alejandro   Morales   Callentano   and \nArianna Medai Navarrete Rosas, were partially dependent upon Claimant \nin  the  amount  of  ten  percent  (10%)  each  under  Ark.  Code  Ann.  § 11-9-\n527(i)(1)  (Repl.  2012).    Accordingly,  per  § 11-9-527(c )(4)  ,  they  are  each \n\nNAVERRETE – H205665 \n \n8 \nentitled  to  weekly  benefits  amounting  to  one and one-half percent (1.5%) \nof Claimant’s average weekly wage, or $12.22. \n5. Claimant’s  estate  has  proven by  a  preponderance  of  the  evidence  that \nRespondents   controverted   the   partial   dependency   benefits   awarded \nabove  to  his  parents  and  siblings.    Accordingly,  Claimant’s  counsel, \nAngela  Galvis  Schnuerle,  Esq.,  is  entitled  to  a  controverted  fee  on  those \nbenefits, pursuant to Ark. Code Ann. § 11-9-715 (Repl. 2012). \n6. Respondents  have  not  proven  by  a  preponderance  of  the  evidence  that \nClaimant’s  counsel  should  be  sanctioned  under  Ark.  Code  Ann.  §  11-9-\n717 (Repl. 2012). \nCASE IN CHIEF \nSummary of Evidence \n Witnesses.    The  hearing  witnesses  were  Alejandro  Morales  Callentano  and \nArianna  Medai  Navarrete  Rosas.  Simon  Navarrete  and  Ugarit  Rosas  testified  via \ndeposition.  The  transcripts  of  these  depositions  have  been  admitted  into  evidence as \noutlined below. \n Exhibits.  In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into \nevidence  in  this  case  were  the  following:   Claimant’s  Exhibit  1, his  Prehearing \nQuestionnaire  Response  plus  exhibits  thereto,  consisting  of 20  numbered  pages; \nClaimant’s  Exhibit 2,  the  transcript  of  the  deposition  of  Simon  Navarette  Rosas  taken \nMarch  10,  2023,  consisting  of  29 pages;  Claimant’s  Exhibit  3, the  transcript  of  the \ndeposition  of  Ugarit  Navarrete  Rosas  taken  March  10,  2023,  consisting  of 30  pages; \n\nNAVERRETE – H205665 \n \n9 \nRespondents’  Exhibit  1,  financial  records,  consisting  of  one  index  page  and 97 \nnumbered  pages  thereafter;  Respondents’  Exhibit  2,  their  Prehearing  Questionnaire \nResponse,  consisting  of  three  numbered  pages;  and  Respondents’  Exhibit  3,  their \nSupplemental   Prehearing   Questionnaire   Response,   consisting   of   three   numbered \npages. \n At the hearing, the parties were directed to file post-hearing briefs.  They did so \non May 31, 2023.  Those briefs, five and nine numbered pages in length, respectively, \nhave been blue-backed to the record. \nAdjudication \nA. Dependent Benefits \n Introduction.  Herein, Claimant’s estate has contended that his parents, Alejandro \nMorales Callentano and Arianna Medai Navarrete Rosas, and his minor siblings Grace \nMedai  Morales  Navarrete,  Emily  Gelet  Morales  Navarrete,  and  Evelyn  Arleth  Morales \nNavarrete  are  entitled  to  receive  partial  dependency  benefits  under  Ark.  Code  Ann.  § \n11-9-527(i)(1)  (Repl.  2012).    Respondents  have  argued  to  the  contrary,  asserting  that \nthe  evidence  does  not  show  that  the  above-named  individuals  were  even  partially \ndependent upon Claimant.\n \n Standards.    The  applicable  provision  here is  Ark.  Code  Ann.  §  11-9-527(i)(1) \n(Repl. 2012), which reads: \nIf the employee leaves dependents who are only partially dependent upon \nhis or  her  earnings  for  support at  the  time of  injury,  the  compensation \npayable  for  partial  dependency  shall be  in  the  proportion  that  the  partial \ndependency bears to total dependency. \n \n\nNAVERRETE – H205665 \n \n10 \nThe statute further provides that “[a]ll questions of  dependency shall be determined as \nof the time of the injury.”  Id. §   11-9-527(h).  Dependency is an issue of fact that must be \ndetermined  in  light  of  the  surrounding  circumstances.   Hicks v.  Bates,  104  Ark.  App. \n348,  292  S.W.3d  850,  2009  Ark.  App.  LEXIS  460; Finley v.  Farm  Cat, Inc.,  103  Ark. \nApp. 292, 288 S.W.3d 685 (2008).\n \n Evidence.  As the parties have stipulated, Claimant was fatally injured at work on \nJuly   23,   2022.      This   is   the   operative   date   for   purposes   of   determining partial \ndependency.  His birth date was June 27, 2004.  Thus, at the time of his death, he had \nbeen a legal adult for only 26 days.  Claimant had been working for Respondent Hixson \nfor  just  30  days;  his  start  date  there  was  June  23,  2022.    The  parties  have  stipulated \nthat his average weekly wage at Hixson was $814.97. \n Prior  to  his  obtaining  this  job,  Claimant’s  income  had  consisted  of  (1)  odd  jobs, \nfor which he was paid in cash; and (2) monthly warrants (in varying amounts) from the \nState of Arkansas that began in January 2022 and totaled approximately $1,700.00.  It \nis  not  clear  from  the  evidence  how  much  Claimant  earned  from  the  odd jobs,  which \nincluded  cleaning  out  chicken  houses  and  cutting  hay.    Claimant opened  a  bank \naccount in June 2022.  Prior to then, his parents held his money for him and gave him \ncash on  request.   He used  these  funds  for,  inter alia,  personal  expenses  that  included \nthe costs of being in the high school band and attending his prom.  His own money was \nalso  used  for  fuel,  clothing,  and  other  necessities.    It  must  be  kept  in  mind  that  such \nexpenses  as  these  would  normally  be  covered  by  one’s  parents  when  the  party  in \n\nNAVERRETE – H205665 \n \n11 \nquestion is still a minor—and Claimant was a minor for the vast majority of the time that \nhe was making money. \n The  evidence  that  was  adduced  at  the  hearing  shows  that  Claimant’s  earnings \nwere  not  only  used  to  cover  his  own  expenses,  but  those  of  his  family.    During the \ntestimony of Claimant’s father at the hearing, the following exchange took place: \nQ. Did Alejandro, Jr., give you his check? \n \nA. Yes. \n \nQ. And you stated that you spent that money [on] general bills.  Could \nyou  please  tell  the  judge  some  of  the  bills  you  paid  with  that \nmoney? \n \nA. The thing is, my son was gonna graduate on the 11\nth\n of this month; \nso he bought a truck to go to university. \n \nQ. Now,  you  said  that  you—it  was  spent  on  general  household \nexpenses.    I’m  asking  you  what  household  expenses  did  you  pay \nwith that money? \n \nA. Yes.    Oh,  yes.    Electricity,  water,  the  TV  signal.  We  paid  the \ninsurance  on  the  house,  and  car  insurance  and  the  cell  phones, \nand internet for the house.  He needed that when he was studying. \n \n. . . \n \nQ. Have you always needed extra money to pay all of your bills? \n \nA. Yes. \n \nQ. Now, I’m asking now for a little bit of historical account.  Way back, \ndid you have people living with you? \n \nA. Yes. \n \nQ. And did they pay you rent? \n \nA. Yes. \n\nNAVERRETE – H205665 \n \n12 \n \nQ. And was that to help pay the bills? \n \nA. Yes. \n \nQ. But you didn’t have anybody paying rent at the time of  Alejandro’s \ndeath, correct? \n \nA. That’s right. \n \n. . . \n \nQ. Did you rely on your son’s money for the family? \n \nA. Yes. \n \nQ. However,  you  also  contributed  your  money  to  support  your  family, \ncorrect? \n \nA. Yes. \n \n. . . \n \nQ. You purchased a pick-up truck, correct? \n \nA. That’s right. \n \nQ. And was that expense—how were you going to pay for that truck? \n \nA. It’s very difficult. \n \nQ. Whose monies were you going to use to pay for that truck? \n \nA. My son’s. \n \nQ. Do you still have that truck? \n \nA. Yes. \n \nIn  her  testimony,  Claimant’s  mother  added  that  her  son  gave  money to  help  purchase \ngroceries.    The  funds  that  Claimant  contributed  were  important  because,  among  other \n\nNAVERRETE – H205665 \n \n13 \nissues,  his  mother  did  not  work  outside  the  home.    The take  home  pay  of  Claimant’s \nfather was not enough, by itself to support the family.  The best illustrations of this are \nnot only that they resorted to using income from their minor child, but that the balance of \nthe parents’ joint account dwindled significantly. \n In addition to the support Claimant furnished his family members by covering his \nown expenses and those of the family at large, he also supported them through specific \nindividual  items.    These  included  medications  for  his  mother  and  sister,  and  school \nsupplies and entertainment for his siblings. \n Discussion.    An  alleged  beneficiary  must  establish  facts  showing  his  or  her \ndependency upon the decedent claimant in order to be held entitled to benefits pursuant \nto  § 11-9-527.   Roach  Mfg.  Co.  v.  Cole,  265  Ark.  908,  582  S.W.2d  268  (1979).    The \ndetermination  of  a  witness’ credibility  and  how  much  weight  to  accord  to  that  person’s \ntestimony  are  solely  up  to  the  Commission.   White  v.  Gregg  Agricultural  Ent.,  72  Ark. \nApp.  309,  37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.   Id.  After  due  consideration,  I  credit  the  testimony  of  Claimant’s  father  and \nmother as outlined above. \n Based  on  the  foregoing  evidence,  I  find  that  Claimant’s  three  siblings  had  a \nreasonable expectation of support from him.  See Robinson v. Ed Williams Constr. Co., \n38  Ark.  App.  90,  828  S.W.2d  860  (1992); Williams  v.  Cypress  Creek  Drainage,  5  Ark. \n\nNAVERRETE – H205665 \n \n14 \nApp.  256,  635  S.W.2d  282  (1982).    Again,  this  is  taking  into  account  both  Claimant’s \npayments towards general family expenses (of which the siblings benefitted along with \neveryone else in the household), as well as specific items of support discussed supra. \n As for Claimant’s mother and father, I find that the credible evidence shows that \nthey, too, had a reasonable expectation of support from him along these same lines.  In \nso doing, I again note that while the parents had a legal duty to support Claimant while \nhe  was  a  minor,  he  nonetheless  made  substantial  contributions  toward  that  support.  \nThe fact that Claimant was never under a legal duty to furnish financial support of these \ntwo individuals is irrelevant.  As the Full Commission wrote in Garcia v. Coast to Coast \nCarports,  Inc.,  2009  AR  Wrk.  Comp.  LEXIS  16,  Claim  No.  F513705  (Full  Commission \nOpinion issued Feb. 25, 2009): \nThe Arkansas legislature has seen fit to  recognize that some people, like \nthe  claimant  in  this  case,  although  not  legally  required  to  do  so,  honor a \nmoral  duty  to  support  their  families.    Here,  the  claimant’s  mother  and \nsiblings  were  fortunate  enough  to  have  such  an  honorable  son  and \nbrother. \n \n The  Arkansas  Court  of  Appeals  in Pinecrest  Mem.  Park.,  Inc.,  v.  Miller,  7  Ark. \nApp.  185,  646  S.W.2d  33  (1983),  found  in  a  decision  awarding  partial dependency \nbenefits that \nA  showing  of  actual  dependency  does  not  require  proof  that  without  the \n[decedent’s]   contribution   [the   alleged    dependent]   would   lack   the \nnecessities  of  life  but  only  that  the  decedent’s  contributions  were relied \nupon  by  the  [alleged  dependent]  to  maintain  her  accustomed  mode  of \nliving. \n \nThis is certainly the case here.  The support given by Claimant to his parents and three \nsiblings in the forms of his cash earnings, his payments from the State of Arkansas, and \n\nNAVERRETE – H205665 \n \n15 \nfrom  the  proceeds  of  his  position  at  Respondent  Hixson,  were  relied  upon  by  them  in \norder  to  maintain  their  accustomed  mode  of  living.    To  reiterate,  this  reliance  was  a \nreasonable one under Robinson, supra. \n In sum, after consideration of the credible  evidence, I find that  Claimant’s  father \nand  mother,  Alejandro  Morales  Callentano  and  Arianna  Medai  Navarrete  Rosas,  were \npartially dependent upon Claimant in the amount of ten percent (10%) each under § 11-\n9-527(i)(1)  (Repl.  2012).    Consequently,  in  accordance  with  § 11-9-527(c )(4)  ,  they  are \neach  entitled  to  weekly  benefits  amounting  to  two  and  one-half  percent (2.5%)  of \nClaimant’s   average   weekly   wage,   or   $20.37.  Furthermore,   I   find   that   the \npreponderance  of  the  evidence  establishes  that  Claimant’s  siblings  Grace  Medai \nMorales   Navarrete,   Emily   Gelet   Morales   Navarrete,   and   Evelyn   Arleth   Morales \nNavarrete  were partially  dependent upon  Claimant  in  the  amount of  ten percent  (10%) \neach under § 11-9-527(i)(1) (Repl. 2012).  Thus, under § 11-9-527(c )(4)  , they are each \nentitled to weekly benefits amounting to one and one-half percent (1.5%) of Claimant’s \naverage weekly wage, or $12.22. \nB. Controversion \n Introduction.    Claimant’s  estate has  asserted  that  its  attorney is  entitled  to  a \ncontroverted fee in this matter. \n Standard.    Arkansas  Code  Annotated §  11-9-715(a)(1)  (Repl.  2012)  provides  in \nrelevant part: \n(a)(1)(A) Fees for legal services rendered in respect of a claim shall not be \nvalid unless approved by t he Workers' Compensation Commission. \n \n\nNAVERRETE – H205665 \n \n16 \n(B) Attorney's fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable to  the  injured  employee  or dependents of  a \ndeceased  employee.  Attorney's  fees  shall not  be  awarded on  medical \nbenefits or services except as provided in subdivision (a)(4) of this section. \n \n. . . \n \n(B)(i) In  all other  cases  whenever  the  commission  finds  that  a  claim  has \nbeen  controverted, in  whole or  in  part,  the  commission  shall  direct  that \nfees for legal services be paid to the attorney for the claimant as follows: \nOne-half  (½) by  the  employer or  carrier in  addition  to  compensation \nawarded;  and one-half  (½) by  the  injured  employee or  dependents of  a \ndeceased employee out of compensation payable to them. \n \n(ii)  The  fees  shall be  allowed  only on  the  amount of  compensation  for \nindemnity benefits controverted and awarded. \n \n(iii)  However,  the  commission  shall  not  find  that  a  claim has  been \ncontroverted if the claimant or his or her representative has withheld from \nthe  respondent  during  the  period of  time  allotted  for  the  respondent to \ndetermine  its  position any  medical information in  his or  her  possession \nwhich substantiates the claim. \n \n(Emphasis added) \n Discussion.    One  of  the  purposes  of  the  attorney's  fee  statute  is  to  put  the \neconomic  burden  of  litigation  on  the  party  who  makes  litigation  necessary.   Brass  v. \nWeller,  23  Ark.  App.  193,  745  S.W.2d  647  (1998).    It  is  clear  that  but  for  Claimant’s \nestate  instigating  the  portion  of  this  litigation  concerning  the entitlement  of  his  family \nmembers   to   partial   dependency   death   benefits,   none   would   have   been   paid.  \nRespondents’ counsel acknowledged this at the outset of the hearing, as shown in the \nfollowing colloquy: \nJUDGE  FINE:    As  I  discussed  with  the  parties  before  going  on  record, \nagain,  I  was  not  the  judge  who  conducted  this  prehearing  telephone \nconference,  and  I  am  not  the  one  who  created  the  Prehearing  Order.  \nThere  needs  to  be  an  issue  added  concerning  whether  Ms.  Schnuerle  is \n\nNAVERRETE – H205665 \n \n17 \nentitled to a controverted fee and certainly under the statute, in the event \nthat  these  death  benefits  are  awarded  to  any  of  these  individuals,  she \nwould  be  entitled  to  a  statutory  fee,  and  that  was  not  addressed  in  that, \nbut I feel that needs to be addressed.  So I’m not hearing objections from \nthe  parties,  particularly  the  Claimant—I  mean,  from  the  Respondents.    I \nwill go ahead and add that as an issue as well. \n \nMS. McKINNEY:  That’s proper.  We did controvert dependence, so that is \na proper issue. \n \n Therefore, Claimant’s estate has proven by a preponderance of the evidence that \nRespondents  controverted  those  benefits,  and  that  the  appropriate  attorneys’  fee  here \nshould be 25 percent (25%) of the indemnity benefits awarded herein, one-half of which \nwould  be  paid  by  Claimant’s  estate  and  one-half  to  be  paid  by  Respondents  in \naccordance with  §  11-9-715.   See Death  &  Permanent  Total  Disability  Trust  Fund  v. \nBrewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). \nC. Sanctions \n Respondents  have  asserted  that  that  counsel  for  Claimant’s  estate  should  be \nsanctioned  under  Ark.  Code  Ann.  §  11-9-717  (Repl.  2012),  quoted  extensively  in  their \nContention  No.  2, supra.    However,  the  estate  has  prevailed  in  the  quest  for  partial \ndependency  benefits  for  Claimant’s  surviving  immediate  family  members.   See  supra.  \nFor that reason, Respondents have not met their burden under this issue. \nCONCLUSION AND AWARD \n Respondents are directed to furnish/pay benefits in accordance with the findings \nof fact and conclusions of law set forth above.  All accrued sums shall be paid in a lump \nsum  without  discount,  and  this  award  shall  earn  interest  at  the  legal  rate until  paid, \n\nNAVERRETE – H205665 \n \n18 \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorneys  are  entitled  to a full 25  percent  (25%)  attorney’s  fee \nawarded herein, one-half of which is to be paid by Claimant’s estate and one-half to be \npaid by Respondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":28621,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H205665 ALEJANDRO MORALES NAVARRETE, DEC’D, EMPLOYEE CLAIMANT HIXSON LUMBER SALES, INC., EMPLOYER RESPONDENT UNION STANDARD INS. CO., CARRIER RESPONDENT OPINION FILED AUGUST 3, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 10, 20...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:03:29.835Z"},{"id":"alj-H203028-2023-08-02","awccNumber":"H203028","decisionDate":"2023-08-02","decisionYear":2023,"opinionType":"alj","claimantName":"Dwight Wilson","employerName":"Express Services, Inc","title":"WILSON VS. EXPRESS SERVICES, INC. AWCC# H203028 AUGUST 2, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILSON_DWIGHT_H203028_20230802.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILSON_DWIGHT_H203028_20230802.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203028 \n \nDWIGHT WILSON,   \nEMPLOYEE                                       CLAIMANT \n \nEXPRESS SERVICES, INC.,   \nEMPLOYER                                                RESPONDENT \n \nAIN INS. CO./ \nSEDGWICK CLAIMS MG’T SERVICES, INC.,   \nINS CARRIER/TPA            RESPONDENT \n \nOPINION AND ORDER FILED AUGUST 2, 2023 \n \nHearing  conducted on May 4, 2023, before the Arkansas Workers’ Compensation Commission \n(AWCC), Administrative Law Judge (ALJ) Mike Pickens, in Texarkana, Miller County, Arkansas.   \n \nThe  claimant  was  represented  by  the  Honorable Gregory  R.  Giles,  Moore,  Giles  &  Matteson, \nTexarkana, Miller County, Arkansas. \n \nThe respondents were represented by the Honorable Jarrod S. Parrish, Worley, Wood & Parrish, \nLLC, Little Rock, Pulaski County, Arkansas.   \n \n \n     INTRODUCTION \n \n     In the Prehearing Order filed February 16, 2023, the parties agreed to the following \nstipulations, which they affirmed on the record at the hearing:   \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  with  the  claimant  at  all \nrelevant times, including March 21, 2022, when the claimant alleges he sustained a \ncompensable injury to his right wrist, either as a result of a specific incident injury \nor a gradual onset injury that culminated in disability on that date.   \n                                                     \n3.   The claimant’s average weekly wage (AWW) was $500.50, which is sufficient to \nentitle him to weekly compensation rates of $334.00 for temporary total disability \n(TTD), and $250.00 for permanent partial disability (PPD) benefits if his claim is \ndeemed compensable. \n \n\nDwight Wilson, AWCC No. H203028 \n \n2 \n \n4. The respondents have controverted this claim in its entirety. \n \n5. The parties specifically reserve any and all other issues for future litigation \n            and/or determination.   \n(Commission  Exhibit  1  at  1-2;  Hearing  Transcript  at  6-7).  The  parties  agreed  to  an  additional \nstipulation at the hearing, that being that the  claimant had in fact applied for and was  receiving \nSocial Security disability (SSD) benefits, and that pursuant to Ark. Code Ann. Section 11-9-411 \n(2023 Lexis Replacement) the respondents are entitled to a dollar-for-dollar credit/off-set based \non the amount of SSD benefits paid to the claimant. (T. 5-6) \n     Pursuant to the parties’ mutual agreement the issues litigated at the hearing were:                                              \n1. Whether  the  claimant  sustained a  compensable  injury  within  the  meaning  of  the \nArkansas Workers’ Compensation Act (the  Act)  to  his  right  wrist  as  a  result  of \neither a specific incident or a gradual onset injury which culminated in disability \non March 21, 2022. \n \n2. If the claimant’s alleged injury is deemed compensable, the extent to which he is \nentitled to medical and indemnity benefits. \n   \n3.       Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. 5-6). \n The claimant contends he sustained a compensable injury to his right wrist either as a result \nof a specific incident injury or a gradual onset injury which culminated in disability on March 21, \n2022. He contends he is entitled to any and all related, reasonably necessary medical treatment and \n\nDwight Wilson, AWCC No. H203028 \n \n3 \n \nrelated  expenses,  as  well  as  TTD  benefits  from  the  date  of  his  injury  through  a  date  yet  to  be \ndetermined. The claimant contends further his attorney is entitled to a controverted attorney’s fee \non any and all indemnity benefits awarded. (Comms’n Ex. 1 at 2-3; T. 5-6). \n The respondents contend the claimant did not sustain and cannot meet his burden of proof \nin demonstrating he sustained either a compensable specific incident or gradual onset injury which \nculminated in disability on or about March 21, 2022. The respondents contend the claimant’s need \nfor medical treatment for his right wrist, if any, is associated with non-work-related, underlying, \nand preexisting problems or conditions, and not any alleged work injury, specific or gradual onset. \nFurthermore,  with  respect  to  the  alleged  gradual  onset  injury  the  respondents  contend  the \nclaimant’s job was not rapid and repetitive in nature, and that the medical records/documentation \ndoes not demonstrate the claimant’s non-repetitive job duties were the “major cause” of his alleged \nright wrist injury or need for medical treatment. (Comms’n Ex. 1 at 3; T. 5-6). \n The record consists of the hearing transcript and any and all exhibits contained therein and \nattached thereto. \nSTATEMENT OF THE CASE \n The relevant facts are incorporated where applicable in the “Discussion” section of this \nopinion and order, infra.     \n \nDISCUSSION \nThe Burden of Proof \n When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord  as  a  whole,  whether  the  party  having  the  burden  of  proof  has  established  it  by  a \n\nDwight Wilson, AWCC No. H203028 \n \n4 \n \npreponderance of the evidence. Ark. Code Ann. § 11-9-704(c)(2) (2023 Lexis Replacement). The \nclaimant has the burden of proving by a preponderance of the evidence he is entitled to benefits. \nStone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. Code Ann. Section 11-\n9-704(c)(3) (2023 Lexis Repl.) states that the ALJ, the Commission, and the courts “shall strictly \nconstrue” the Act, which also requires  them  to  read  and  construe  the  Act  in  its  entirety,  and  to \nharmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d 899 \n(Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987).   \n All claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Dena Constr. Co. v. Herndon, 264 Ark. \n791, 595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the \ncredibility of the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. \nApp. 116, 912 S.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a \nclaimant’s or any other witness’s testimony, but may accept and translate into findings of fact \nthose portions of the testimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, \n780 S.W.2d 34 (Ark. App. 1989); Farmers Coop. v. Biles, supra.   \n The Commission has the duty to weigh the medical evidence just as it does any other \nevidence, and its resolution of the medical evidence has the force and effect of a jury verdict. \n\nDwight Wilson, AWCC No. H203028 \n \n5 \n \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince to weigh the totality of the medical evidence and to determine what evidence is most \ncredible given the totality of the credible evidence of record. Minnesota Mining & Mfg’ing v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n As  always,  both  attorneys  did  an  excellent  job  zealously  representing  their  respective \nclients and presenting their respective cases at the subject hearing – both of which resulted in a \ncomplete  record  that  was  most  helpful  to  this  ALJ  in  examining  the  relevant  evidence  and \nrendering  the  opinion  herein.  Consequently,  based  on  the  aforementioned  law  as  applied  to  the \nfacts  of  this  case,  and  the  totality  of  the  credible  evidence  of  record –  both  testimonial  and \ndocumentary –  I  am  compelled  to  find  the  claimant  has  failed  to  meet  his  burden  of  proof  in \ndemonstrating he sustained either a specific-incident compensable injury on March 21, 2022, or a \ngradual onset compensable injury which culminated in disability beginning on March 21, 2022, \nduring the very short period of time he worked for Express Services from March 14, 2022, through \nMarch 21, 2022, for the reasons set forth below. \nThe  claimant  himself  readily  admits  he  did  not  sustain  a  specific-incident  compensable \ninjury  on  March  21,  2022.  This  admission,  along  with  the  relevant  medical  records, \ndemonstrate  the  claimant  has  failed  to  meet  his  burden  of  proof  in  demonstrating  he \nsustained a specific-incident compensable injury on March 21, 2022. \n \n For  any  specific-incident  injury  to  be  compensable,  the  claimant  must  prove  by  a \npreponderance of the evidence that his injury: (1) arose out of and in course of his employment; \n(2) caused internal or external harm to his body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence. Ark.  Code  Ann.  §  11-9-102(4); \n\nDwight Wilson, AWCC No. H203028 \n \n6 \n \nCossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, 687 (Ark. \nApp.  2009).  Of  course,  the  claimant  bears  the  burden  of  proving  the  compensable  injury  by  a \npreponderance of the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.   \n “Objective findings” are those findings which cannot come under the voluntary control of \nthe patient. Ark. Code Ann. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, \nat  80  250  S.W.3d  263,  at  272  (Ark.  App.  2007).  Objective  findings, “specifically exclude such \nsubjective complaints or findings such pain, straight-leg-raising tests, and range-of-motion tests.” \nBurks  v.  RIC,  Inc.,  2010  Ark.  App.  862  (Ark.  App.  2010).  Objective  medical  evidence  is  not \nessential to establish a causal relationship between the work-related accident and the alleged injury \nwhere objective medical evidence exists to prove the existence and extent of the underlying injury, \nand a preponderance of other nonmedical evidence establishes a causal relationship between the \nobjective  injury  and  the  work-related  incident(s)  in  question. Flynn  v.  Southwest  Catering  Co., \n2010  Ark.  App.  766,  379  S.W.3d  670  (Ark.  App.  2010).  Moreover,  the  claimant  must  prove  a \ncausal relationship exists between her employment and the alleged injury. Wal-Mart Stores, Inc., \nv. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. App. 2002) (citing McMillan v. \nU.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (Ark. App. 1997). \n The claimant himself admitted in both his  sworn deposition testimony and at the subject \nhearing that he could not identify a specific incident on March 21, 2022, that caused his right wrist \npain. When the respondents’ counsel pointed out the claimant could not identify a specific incident \non March 21, 2022, wherein the claimant injured his right wrist, the claimant responded, “Right, \nthat’s right.” (T. 105). He went on to agree with respondents’ counsel that the claimant’s testimony \nwas that he had, “...a gradual onset of symptoms.” (T. 105). In fact, the claimant went on to testify \n\nDwight Wilson, AWCC No. H203028 \n \n7 \n \nhe had a gradual onset of symptoms, “When I went home that night, yes”, “that night” being the \nevening of March 21, 2022. (T. 105-106).   \n In addition, the preponderance of the medical evidence of record reveals the claimant had \nnumerous medical problems, including gout, and that he had some history of pain and problems in \nhis right hand and right wrist. (T. 95-104), Respondents’ Exhibit 1 at 1-17). Indeed, on December \n22, 2021, the claimant went to see his doctor complaining of right hand/wrist pain, and he admitted \nhaving told the doctor at that time – some three (3) months before he went to work for Expresses \nServices – he had been dropping things when he tried to pick up things with his right hand. (T. 99; \nRX1 at 5-7). At that time the claimant was complaining of various subjective symptoms such as \npain and numbness in the area of his right thumb, hand, and wrist, right-sided radiculopathy, and \na  shooting  pain  from  his  right  hand  to  his  elbow.  (T.  98;  RX1  at  5,  6,  and  7).  From  at  least \nSeptember  3,  2015  through  March  7,  2022 –  the  latter  date  being  just  one  (1)  week  before  the \nclaimant went to work for Express Services – the claimant, as noted above, was having pain and \nnumbness in his right hand to the extent he was dropping things and having trouble gripping things \nwith his right hand. (Id.)       \n On March 7, 2022 – just one (1) week before the claimant started work at Express Services \n–  the  claimant  went  to  see  Dr.  Wayne  Daniels,  an  orthopedic  surgeon  with  South  Arkansas \nOrthopedic  and  Sports  Medicine,  complaining  of neck pain, and, “Numbness right index finger \nand right thumb.” (RX1 at 14). Dr. Daniels diagnosed the claimant as having, “Cervical disc \ndisorder with radiculopathy, unspecified cervical region.” (RX1 at 16; 14-16). Dr. Daniels wrote \nin the “IMPRESSION” section of his report the claimant’s symptoms were at that time the result \nof, “Cervical pain with right upper extremity radiculopathy.” (RX1 at 16). Consequently, Dr. \n\nDwight Wilson, AWCC No. H203028 \n \n8 \n \nDaniels ordered an MRI of the claimant’s cervical spine. (RX1 at 16). At that time the claimant \nwas working as a loader for Graphic Packaging. (RX1 at 14). While at times during his hearing \ntestimony the claimant went to great lengths to differentiate between the right hand, thumb, and \nwrist pain before and after the alleged injury/disability date of March 21, 2022, the totality of both \nhis  hearing  testimony  and the  relevant  medical  records  appear  to  contradict  the  claimant’s \ntestimony in this regard. (T. 38-117; RX1 at 1-31; Claimant’s Exhibit 2 at 1-184). In summary, \nboth the claimant’s own testimony and the totality of the relevant medical records demonstrate the \nclaimant’s right hand,  wrist, and thumb numbness  and  pain  were  the  result  of  degenerative \nconditions in his cervical spine, and not his work duties at Express Services. While I can certainly \nunderstand his work duties at Express Services may have revived the claimant’s symptoms, the \ntotality of the record herein reveals the claimant’s right hand, wrist, thumb, and arm pain and \nnumbness were more likely than not the result of the degenerative condition of his cervical spine, \nand not any injury he allegedly sustained at Express Services.       \n Finally, I must say I find it interesting the claimant began using his cell/mobile phone to \ntake  pictures  of  his  work  station/duties  very  soon  after  he  went  to  work  for  Express  Services \n(apparently in knowing violation of his employer’s cell phone policy which prevented him from \nhaving a cell phone in his work area. (T. 81-83). While the claimant testified, he was taking the \npictures to show his wife and grandson what he did at work, I did not find his testimony in this \nregard  to  be  credible.  Indeed,  at  times it appeared the claimant’s initial hearing testimony was \ninconsistent with his sworn deposition testimony, and the medical record (the claimant alleged at \nleast one of his physicians had incorrectly written concerning the location of his right hand/wrist, \netc. pain); however, when respondents’ counsel confronted the claimant with these apparent \n\nDwight Wilson, AWCC No. H203028 \n \n9 \n \ninconsistencies the claimant admitted that his sworn deposition testimony was accurate. On cross-\nexamination the claimant admitted he was a convicted felon due to having written a “hot check”, \nwhich I note is a crime of dishonesty. (T. 80-81).             \nThe  claimant  has  failed  to  meet  his  burden  of  proof  in  demonstrating  the  work  duties  he \nperformed for Express Services for some seven (7) days – from March 14, 2022, to March \n21, 2022 – were the “major cause” of his right wrist problems. Therefore, he has failed to \nmeet  his  burden  of  proof  in  demonstrating  his  right  wrist  problems  were  the  result  of a \ngradual onset compensable injury as defined in the Act. \n \nWith  respect  to  an  alleged  gradual  onset  compensable  injury Ark.  Code  Ann. §  11-9-\n102(4)(A) (2023 Lexis Repl.) defines “compensable injury” as follows: \n(ii) An injury causing internal or external physical harm to the body and arising out \n    of and in the course of employment if it is not caused by a specific incident or \n    is not identifiable by time and place of occurrence; if the injury is: \n \n(a) Caused by rapid repetitive motion. Carpal tunnel syndrome is specifically \ncategorized as a compensable injury falling within this definition[.]   \n \n(Bracketed material, and emphasis added).\nThe test for determining whether an injury is caused by rapid repetitive motion is two (2)-\npronged: (1) the task must be repetitive, and (2) the repetitive motion must be rapid. Malone v. \nTexarkana  Public  Schools,  333  Ark.  343,  969  S.W.2d  644  (1998).  Multiple  tasks  involving \ndifferent  movements  can  be  considered  together to  satisfy  the  “repetitive  element”  of  rapid \nrepetitive motion. Id. \n Just as in the case of any other compensable injury, an alleged gradual onset compensable \ninjury must be established by medical evidence supported by objective findings.   Ark. Code Ann. \n§ 11-9-102(4)(D); Ark. Code Ann. § 11-9-102(16). “Objective findings” are defined as findings \nwhich cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A); \n\nDwight Wilson, AWCC No. H203028 \n \n \n \n10 \nLong v. Wal-Mart Stores, Inc., 98 Ark. App. 70, at 80 250 S.W.3d 263, at 272 (Ark. App. 2007). \nObjective  findings  specifically  exclude  such  subjective  complaints  or  findings  as  pain,  straight-\nleg-raising  tests,  and  range-of-motion  (ROM)  tests  since  they  all  are  subjective  in  nature  and \nsubject to the claimant’s  voluntary  control  or  manipulation. See,  Burks  v.  RIC,  Inc.,  2010  Ark. \nApp. 862 (Ark. App. 2010).   \n With  respect  to  a  gradual  onset  injury  caused  by  rapid  repetitive  motion  the  resulting \ncondition  is  compensable only  if  the  alleged  compensable  injury  is  the “major cause” of the \ndisability or need for treatment. Ark. Code Ann. § 11-9-102(4)(E)(ii); Medlin v. Wal-Mart Stores, \nInc., 64 Ark. App. 17, 977 S.W.2d 239 (1998). “Major cause” means greater than fifty percent \n(50%) of the cause. Ark. Code Ann. § 11-9-102(4)(E)(ii); Lowe's Home Ctrs., Inc. v. Pope, 482 \nS.W.3d 723 (Ark. App. 2016). The “major cause” requirement may be established by the fact the \nclaimant  was  asymptomatic  prior  to  an  incident,  and  then  became  symptomatic  and  required \nmedical treatment after the incident. Parker  v. Atlantic Research Corp., 87 Ark. App. 145, 189 \nS.W.3d 449 (Ark. App. 2004) (Emphasis added). \n The resolution of the gradual onset compensable injury issue is straight-forward. There was \na great deal of testimony concerning the claimant’s job duties related to whether the video shown \nat the hearing was an accurate representation of his actual job duties and, generally, whether the \nclaimant’s job duties were in fact rapid and repetitive. (T. 9-21;  39-142;  152-161).  However, \nwhether or not one finds the claimant’s job duties at Express Services were rapid and repetitive, \nthe totality of both the testimony and medical records reveal that the claimant’s job duties certainly \nmay not be accurately characterized as being the “major cause” of the claimant’s right wrist \n\nDwight Wilson, AWCC No. H203028 \n \n \n \n11 \nproblems  and  need  for  medical  treatment.  The  preponderance  of  the  evidence  demonstrates  the \n“major cause” of the claimant’s right wrist and hand symptoms was more likely than not his \ncervical spine problems, which resulted in right-sided radiculopathy well before the claimant ever \nwent to work for Express Services; the degenerative conditions of the claimant’s hand and right \nwrist and other joints; and other longstanding conditions. Consequently, it would constitute sheer \nspeculation and conjecture to find the claimant’s work duties at Express Services – whether or not \nthey were rapid and repetitive – were the major cause of the claimant’s alleged gradual onset injury \nto his right wrist. And speculation and conjecture, whether plausible or not, do not constitute proof. \nDena, supra. \n Therefore, for all the aforementioned reasons, I hereby make the following: \n                 FINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction of this claim.  \n 2. The stipulations contained in the prehearing order filed February 16, 2023, as well \n  as the additional stipulation to which the parties agreed at the hearing – all of which \n  the parties affirmed on the record at the hearing – hereby are accepted as facts.   \n \n 3. The claimant has failed to meet his burden of proof pursuant to the Act in    \n  demonstrating he sustained a specific-incident compensable injury to his right wrist \n  on March 21, 2022.   \n \n 4. The claimant has failed to meet his burden of proof in demonstrating he sustained \n  a gradual onset compensable injury which cukminated in disability on March 21,   \n  2022. Even if the claimant’s job were deemed to be rapid and repetitive within the \n  Act’s meaning, the preponderance of the evidence – especially the medical records \n  – reveal the job duties he performed at Express Services were not the “major cause” \n  of his longstanding, preexisting right wrist problems.   \n \n 5. The claimant’s attorney is not entitled to a fee on these facts. If they have not   \n  already done so the respondents hereby are ordered to pay the court reporter’s  \n\nDwight Wilson, AWCC No. H203028 \n \n \n \n12 \n  invoice within twenty (20) days of their receipt of this opinion and order. \n \n       IT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":22702,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203028 DWIGHT WILSON, EMPLOYEE CLAIMANT EXPRESS SERVICES, INC., EMPLOYER RESPONDENT AIN INS. CO./ SEDGWICK CLAIMS MG’T SERVICES, INC., INS CARRIER/TPA RESPONDENT OPINION AND ORDER FILED AUGUST 2, 2023 Hearing conducted on May 4, 2023, before the Arkansas W...","outcome":"denied","outcomeKeywords":["affirmed:1","granted:1","denied:3"],"injuryKeywords":["wrist","repetitive","neck","cervical","carpal tunnel"],"fetchedAt":"2026-05-19T23:03:25.702Z"},{"id":"full_commission-G906350-2023-07-27","awccNumber":"G906350","decisionDate":"2023-07-27","decisionYear":2023,"opinionType":"full_commission","claimantName":"Laura Easley","employerName":"College Hill Middle School","title":"EASLEY VS. COLLEGE HILL MIDDLE SCHOOL AWCC# G906350 JULY 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Easley_Laura_G906350_20230727.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Easley_Laura_G906350_20230727.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  G906350\n \n \nLAURA D. EASLEY, EMPLOYEE  CLAIMANT \n \nCOLLEGE HILL MIDDLE SCHOOL, EMPLOYER RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSN.,  RESPONDENT \nWORKERS’ COMPENSATION TRUST,  \nINSURANCE CARRIER/TPA  \n \nOPINION FILED JULY 27, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed March 2, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1.  The Commission has jurisdiction over this claim.  \n \n2.  The   stipulations   contained   in   the   Prehearing   Order   Filed \nSeptember 23, 2022, which the parties modified and affirmed on \nthe record at the hearing, hereby are accepted as facts.  \n \n \n\n \nEASLEY - G906350  2\n  \n \n \n3.  The   claimant   has   failed   to   meet   her   burden   of   proof   in \ndemonstrating she sustained a lower back/lumbar spine injury as \na result of either of the August 13, 2019, or the August 22, 2020, \nfalls. Therefore, the respondents are not responsible for payment \nof any medical or indemnity benefits associated with the claimant’s \nlong-standing,  well-documented,  symptomatic  lower  back/lumbar \nspine  degenerative  disc  disease/condition.    See  Vaughn  and \nMoody, supra. \n \n4.  The  claimant  has  met  her  burden  of  proof  in  demonstrating  the \nright ankle fusion surgery Dr. Ardoin has recommended is related \nto and reasonably necessary in light of her compensable injury. \n \n5.  The   claimant   has   failed   to   meet   her   burden   of   proof   in \ndemonstrating she is entitled to additional medical treatment at the \nrespondents’ expense for her thoracic spine strain after May 15, \n2021, the date Dr. Bruffett opined she reached MMI, except for the \nJune 16, 2021, MRI Dr. Bruffett ordered and required in order to \nclarify his opinion. \n \n6.  The claimant has met her burden of proof in demonstrating the \npain management treatment she has undergone for her right \nankle and neck/cervical spine injuries is related to and reasonably \nnecessary for treatment of her admittedly compensable injuries of \nAugust 13, 2019, and August 22, 2020.  \n \n7.  The claimant has met her burden of proof in demonstrating she is \nentitled to additional TTD benefits from August 22, 2020, through \nMarch 8, 2021; and from March 9, 2021, through June 14, 2022, \nthe date Dr. Martin opined she had reached MMI.  Of course, the \nrespondents are entitled to take a credit toward this award of \nadditional TTD benefits based on any and all indemnity benefits \nthey may have overpaid.  \n \n \n\n \nEASLEY - G906350  3\n  \n \n \n8. The claimant’s attorney is entitled to an attorney’s fee on all \ncontroverted indemnity payments. \n \n           We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's March 2, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n           The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann.  § 11-9-715(a)(Repl. 2012).  For prevailing \nin part on appeal, the claimant’s attorney is entitled to an additional fee of \nfive hundred dollars ($500), pursuant to Ark. Code Ann.  § 11-9-715 \n(b)(Repl. 2012). \n \n \n \n\n \nEASLEY - G906350  4\n  \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":4399,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G906350 LAURA D. EASLEY, EMPLOYEE CLAIMANT COLLEGE HILL MIDDLE SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., RESPONDENT WORKERS’ COMPENSATION TRUST, INSURANCE CARRIER/TPA OPINION FILED JULY 27, 2023 Upon review bef...","outcome":"granted","outcomeKeywords":["affirmed:2","granted:6"],"injuryKeywords":["back","lumbar","ankle","thoracic","strain","neck","cervical"],"fetchedAt":"2026-05-19T22:29:46.252Z"},{"id":"alj-H203255-2023-07-27","awccNumber":"H203255","decisionDate":"2023-07-27","decisionYear":2023,"opinionType":"alj","claimantName":"David Penny","employerName":"James M. Bozeman, LLC","title":"PENNY VS. JAMES M. BOZEMAN, LLC AWCC# H203255 JULY 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PENNY_DAVID_H203255_20230727.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PENNY_DAVID_H203255_20230727.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203255 \n \nDAVID K. PENNY, \nEMPLOYEE                                                                                                              CLAIMANT \n \nJAMES M. BOZEMAN, LLC \nEMPLOYER                                                                                                         RESPONDENT  \n \nLUBA CASUALTY INS. CO., \nLUBA INSURANCE \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED JULY 27, 2023 \n \nHearing conducted on Tuesday, July 26, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant is represented by the Honorable Sherri R. Arman, Lane, Muse, Arman & Pullen, \nHot Springs, Garland County, Arkansas, waived appearance at the hearing. \n \nThe respondents were represented by the Honorable Carol Lockard Worley, Little Rock, Pulaski \nCounty, Arkansas. \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Wednesday, July 26, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2020 \nLexis Replacement) and Commission Rule 099.13 (2023 Lexis Replacement). \n The  respondents  filed  a  motion  to  dismiss  with  the  Commission  on  April  10,  2023, \nrequesting this claim be dismissed without prejudice for lack of prosecution. In accordance with \napplicable Arkansas law, the claimant and his attorney of record were mailed due and proper legal \nnotice of the respondents’ motion to dismiss, as well as a copy of the hearing notice at their current \naddresses of record. The claimant’s attorney advised both the Commission and the respondents’ \n\nDavid K. Penny, AWCC No. H203255 \n2 \n \nattorney in writing the claimant had no objection to the respondents’ motion to dismiss without \nprejudice, and waived appearance at the subject hearing. (Commission Exhibit 1). \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced  at  the  hearing  and  contained  in  the  record  conclusively  reveals  the  claimant  has  not \nprosecuted his claim at this time. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After having received due and legal notice of the respondents’ motion to dismiss, \n                  as well as due and legal notice of the subject hearing, the claimant’s attorney \n                  advised both the Commission and the respondents’ attorney in writing the \n                  claimant had no objection to the respondents’ motion to dismiss without \n                  prejudice, and waived appearance at the subject hearing. \n \n 3. Therefore, the respondents’ motion to dismiss without prejudice filed with \n                  the Commission on April 10, 2023, should be and hereby is GRANTED; and    \n                  this claim is dismissed without prejudice to its refiling pursuant to the deadlines  \n  prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission Rule  \n  099.13. \n \n This  opinion  and  order  shall  not  be  construed  to  prohibit  the  claimant,  his  attorney,  any \nattorney he may retain in the future, or anyone acting legally and on his behalf from refiling the \n\nDavid K. Penny, AWCC No. H203255 \n3 \n \nclaim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The  respondents  shall pay  the  court  reporter’s  invoice  within  twenty  (20)  days  of  their \nreceipt thereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":4883,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203255 DAVID K. PENNY, EMPLOYEE CLAIMANT JAMES M. BOZEMAN, LLC EMPLOYER RESPONDENT LUBA CASUALTY INS. CO., LUBA INSURANCE INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED JULY 27, 2023 Hearing conducted on Tuesday, July...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:05:45.994Z"},{"id":"alj-H206170-2023-07-27","awccNumber":"H206170","decisionDate":"2023-07-27","decisionYear":2023,"opinionType":"alj","claimantName":"Amanda Rowlett","employerName":"Linen King LLC","title":"ROWLETT VS. LINEN KING LLC AWCC# H206170 JULY 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Rowlett_Amanda_H206170_20230727.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Rowlett_Amanda_H206170_20230727.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206170 \n \n \nAMANDA K. ROWLETT, EMPLOYEE CLAIMANT \n \nLINEN KING LLC, \n EMPLOYER RESPONDENT \n \nTRAVELERS PROP. & CASUALTY CO. \n OF AMER., CARRIER RESPONDENT \n \n \nOPINION FILED JULY 27, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  July  27,  2023,  in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock,  \nArkansas. \n \n \nI.    BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by  \nRespondents.  A hearing on the motion was conducted on July 27, 2023, in    Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is  pro se,  failed  to  appear  at  the  hearing.    Without  \nobjection,  the  Commission  file  on  this  claim  has  been  incorporated  herein  in  its  \nentirety  by  reference.    Admitted  into  evidence  was  Respondents’  Exhibit  1,  \ncorrespondence related to the claim, consisting of five pages. \n\nROWLETT – H206170 \n2 \n \n The record reflects the following procedural history: \n On August  26,  2022,  a  Form  AR-1  was  filed  in  this  case,  reflecting  that \nClaimant purportedly  sustained an  injury  to her  neck  on August 13,  2022,  when \nshe  was  involved  in  a  work-related  motor  vehicle  accident.    Respondents  on \nAugust  26,  2022,  filed a  Form  AR-2,  representing  that  they had accepted  the  \ninjury as compensable and were paying medical and indemnity benefits pursuant \nthereto.  Claimant has not filed a Form AR-C.  Respondents’ counsel entered his \nappearance on September 27, 2022. \n On  May  15, 2023,  Respondents  filed  the  instant  Motion  to  Dismiss.  \nTherein, they argued that “Claimant has done nothing to pursue this matter,” thus \nwarranting dismissal.  The file was assigned to me on May 15, 2023; and on May \n30,  2023,  my  office  wrote  Claimant,  asking  for  a  response  to the  motion  within \ntwenty  (20)  days.    The  letter  was  sent  via  certified  and  first-class  mail to  the \naddress for Claimant listed in the file.  While the certified letter was returned to the \nCommission,  unclaimed,  on  June  22,  2023,  the  first-class  correspondence  was  \nnot returned.    Nonetheless,  no  response  to  the  motion was  forthcoming  from  \nClaimant. \n On June  27, 2023, a hearing  on  the  Motion to  Dismiss was scheduled for \nJuly 27, 2023, at 9:30 a.m. at the Commission in Little Rock.  The notice was sent \nto  Claimant  by  first-class  and  certified  mail  at  the  same  address  as  before.    As \nbefore, the certified letter was not claimed by Claimant, and it was returned to the \n\nROWLETT – H206170 \n3 \n \nCommission  on July  17,  2023.    But  again;  the first-class  letter  was  not  returned.  \nThe evidence thus preponderates that Claimant received notice of the hearing. \n The hearing on the Motion to Dismiss proceeded as scheduled on July 27, \n2023.    As  stated  above, Claimant failed  to  appear.    But  Respondents  appeared \nthrough counsel and argued for dismissal of the action under AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas Workers’  Compensation  Commission  has  jurisdiction  \nover this matter. \n2. No Form AR-C has ever been filed in connection with this matter. \n3. No other document before the Commission in this matter constitutes \na claim for additional benefits. \n4. Respondents’ Motion to Dismiss  is  denied  because  no claim  exists  \nto be subject to dismissal. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon  \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \n\nROWLETT – H206170 \n4 \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730  \n(1996).  (Emphasis added) \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove by a preponderance of the evidence that dismissal should be granted.  The \nstandard  “preponderance  of  the  evidence”  means  the  evidence  having  greater \nweight  or  convincing  force.    Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n No  Form  AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing  a \n“formal  claim.”    See  Yearwood  v.  Wal-Mart  Stores,  Inc.,  2003  AR  Wrk.  Comp.  \nL\nEXIS  739, Claim  No.  F201311 (Full  Commission  Opinion  filed  June  17,  2003).    \nSee also Sinclair v. Magnolia Hospital, 1998 AR Wrk. Comp. LEXIS 786, Claim No. \nE703502 (Full Commission Opinion filed December 22, 1998)(a claim is “typically” \nfiled via  a  Form  AR-C).    While  a  Form  AR-1  was  filed,  that  does not  suffice  to  \ninstigate a claim.  Id. \n Per Ark. Code Ann. § 11-9-702(c) (Repl. 2012): \nA claim for additional compensation must specifically state that it is \na  claim  for  additional  compensation.    Documents  which  do  not  \nspecifically  request  additional  benefits  shall  not  be  considered  a  \nclaim for additional compensation. \n \n(Emphasis added)  See White Cty. Judge v. Menser, 2020 Ark. 140, 597 S.W.3d \n640. \n My  review  of  the  Commission’s  file  discloses  no  document  sufficient  to  \nconstitute a filing of a claim for additional benefits under the standard cited above.  \n\nROWLETT – H206170 \n5 \n \nBecause  no  claim  has  been  filed,  it  follows  that  there  is  no  claim  subject  to  \ndismissal  per  Respondents’  motion.    The Motion  to  Dismiss thus  must  be,  and  \nhereby is, denied. \nCONCLUSION \n In  accordance  with    the  findings    of  fact  and  conclusions  of  law  set  forth  \nabove, the Motion to Dismiss is hereby denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":6358,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H206170 AMANDA K. ROWLETT, EMPLOYEE CLAIMANT LINEN KING LLC, EMPLOYER RESPONDENT TRAVELERS PROP. & CASUALTY CO. OF AMER., CARRIER RESPONDENT OPINION FILED JULY 27, 2023 Hearing before Administrative Law Judge O. Milton Fine II on July 27, 2023, in Little Rock...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1","denied:3"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T23:05:48.054Z"},{"id":"alj-H104308-2023-07-27","awccNumber":"H104308","decisionDate":"2023-07-27","decisionYear":2023,"opinionType":"alj","claimantName":"Keith Smith","employerName":"Rock Dental Arkansas, Pllc","title":"SMITH VS. ROCK DENTAL ARKANSAS, PLLC AWCC# H104308 JULY 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SMITH_KEITH_H104308_20230727.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SMITH_KEITH_H104308_20230727.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H104308 \n \nKEITH W. SMITH, EMPLOYEE        CLAIMANT \n \nROCK DENTAL ARKANSAS, PLLC, \nAXPM DENTAL MANAGEMENT, EMPLOYER         RESPONDENT \n \nCINCINNATI CASUALTY Co./CINCINNATI \nINSURANCE, CARRIER, CARRIER/TPA          RESPONDENT \n \n \nOPINION FILED 27 JULY 2023 \n \n \nOn  hearing  before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, 8 March 2023, Little Rock, Pulaski County, Arkansas. \n \nMs. Laura Beth York and Mr. B. Tanner Thomas, Attorneys-at-Law, Little Rock, Arkansas, \nappeared for the claimant. \n \nMr. Guy Alton Wade, Attorney-at-Law, Little Rock, Arkansas, appeared for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 8 March 2023 in Little Rock, Arkansas, after the \nparties participated in a prehearing telephone conference on 6 December 2022.  A Prehearing \nOrder was  entered  on that  same  day. The  Order  stated  the  following ISSUES  TO BE \nLITIGATED: \n1.  Whether the claimant sustained a compensable injury to his back by specific incident. \n2.  Whether the claimant is entitled to reasonable and necessary medical treatment. \n3.  Whether the claimant is entitled to temporary total disability (TTD) benefits. \n4.  Whether the claimant is entitled to a controverted attorney’s fee. \nAll other issues were reserved. \nThe parties’ CONTENTIONS, as set forth in their prehearing questionnaire responses, \nwere incorporated by reference into the Prehearing Order. The CLAIMANT CONTENDS: \n\nK. SMITH- H104308  \n2 \n \n1. That he suffered a compensable back injury in the scope and course of employment on \n19 April 2021. \n \n2. That he sought treatment on his own and underwent an MRI that revealed a superior \nend  plate  compression  fracture  at  T-12,  and  corrective  surgery  occurred  on  2  June \n2021. \n \n3. That he was taken off work for 19, 22, and 26 April and then 3, 6, 10, 13, 17, 20, and \n25-38 May. \n \n4. He is entitled to medical benefits, TTD, and that his attorney is entitled to a fee. \n \nThe RESPONDENTS CONTEND: \n1. That the claimant did not sustain a compensable injury in the course and scope of his \nemployment. \n \nThat Order also set forth the following STIPULATIONS: \n1. The AWCC has jurisdiction over this claim. \n2. An employee/employer/carrier relationship existed on 19 April 2021 and at all other \ntimes relevant to this claim. \n \n3. The respondents have controverted this claim in its entirety. \n \n4. The claimant’s  average  weekly  wage  (AWW)  entitles  him  to  the  maximum \ncompensation rates. \n \nTwo (2) WITNESSES provided sworn testimony—the claimant spoke on his own behalf \nand the respondents called Mr. James “Jim” Cavanaugh, who appeared remotely. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law under \nArk. Code Ann. § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The previously noted stipulations are accepted as fact. \n3. The  claimant  failed  to  prove, by  a  preponderance  of  evidence, that he suffered a \nwork-related injury by specific incident. \n\nK. SMITH- H104308  \n3 \n \n4. Because he failed to prove a compensable injury, the claimant’s request for reasonable \nand necessary medical treatment and TTD benefits are moot and will not be addressed \nbelow. \n \n5. Consistent with the above, the claimant’s attorney is not entitled to a fee. \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE                                                                                                        \nA. Claimant on direct-examination by Mr. Thomas: \nClaimant, Dr. Keith Smith, has been a dentist practicing his trade since completing \ndental school in 1984.  He began working for respondent, Rock Dental, in their Helena office \naround October of 2020.  A Little Rock resident, Dr. Smith would drive into town on Mondays \nand begin work around 8:00 AM, stay in local housing for the week, and then return home on \nThursday afternoons or evenings.  [TR at 8-11] \nAccording to the claimant, he began most days by starting some tea in the office’s \nbreakroom.  The claimant would go about other things while the tea brewed before going back \ninto the breakroom to get his cup for the morning.  On the morning of 19 April 2021, he was \ndoing just that when he fell going back into the breakroom.  [TR at 12-13]  Dr. Smith claims \nthat he stumbled over one of the chairs around the room’s table.  He was hurting but able to \npull himself up into one of the chairs, where others found him after coming to the room to \ncheck on the commotion. \nDr. Smith explained that he was able to go back and continue a procedure he started \nbefore  going  to  fetch  his  tea.  Sometime  afterwards  a  hygienist  asked  him  to  check  some \npatients on the other side of the office.  About that time, he said, the hygienist suggested that \nhe sit down, saying he was “white as a sheet.”  [TR at 14] \nSpeaking again on the fall, the claimant said that he fell forward, twisting, and that \nhe felt pain almost immediately.  [TR at 17]  After checking the hygiene patients, Dr. Smith \nsaid that the office manager indicated that he should be seen at the local hospital and called \nfor EMS transport via Pafford Medical Services.  The claimant stated his understanding that \n\nK. SMITH- H104308  \n4 \n \nhis condition was ultimately determined to be “bruised up badly but nothing was fractured.” \n[TR at 18]  \nHis next presentation for treatment was on 7 May 2021 at the chiropractic office of \nDr.  Chris  Blackmon, where  spinal x-rays  were  read  to show  compression fractures. [TR  at \n19]  The claimant next saw Dr. Hal Hedges with Little Rock Family Practice (LRFP) on 14 \nMay 2021.  Dr. Hedges ordered an MRI that was performed on 20 May 2021.  [TR at 21-22] \nAccording to Dr. Smith, he received a call on 21 May saying he would not be needed \nat the office the following Monday, 24 May.  He then received a call that Monday afternoon \ninforming him that he had been relieved of his position with Rock Dental.  [TR at 22] \nDr.  Smith  underwent  a  corrective  procedure  for  his  back  issue  at  the  beginning  of \nJune 2021 and did not work again until “the end of the month,” after “recuperating enough” \nto begin working again.  [TR at 23]  He stated that he began doing contract work for Aspen \nDental Group in Hot Springs for about four (4) months before starting again with Jefferson \nComprehensive Care for another year or so.  At the time of the hearing, he said that he was \nworking for Guided Practice Solutions Southern Dental Group.  [TR at 24] \nThe claimant went on to say that he was taking Maxide to control his blood pressure \nand that he had not experienced any dizziness on the medication; but when asked if he had \never fallen due to dizziness on the medication, he answered, “No, not that I would say.” [TR \nat 24]  When asked if he had any symptoms due to medication prior to his fall in April, he \noffered, “Not that I can speak to.”  [TR at 25] He rated the pain he felt after falling as a nine \n(9) or ten (10) and said that he never experienced pain like that before.  Dr. Smith believes \nthat the corrective procedure was a success, though he experiences some reduction in range \nof motion, “which is part of being a dentist.” Id. \nB. Claimant on cross-examination by Mr. Wade: \n\nK. SMITH- H104308  \n5 \n \nRespondents’ counsel asked again about the morning of Dr. Smith’s fall, and Dr. Smith \nsaid again that he fell on his way to get a cup of tea and that he had not been light-headed or \ndizzy at the time.  Nor was there any hazard apparent on the floors.  [TR at 28]  He confirmed \nhis discharge from the emergency department (ED) on the same day that he arrived and that \nhe returned to work the following day, apparently without any further incident.  [TR at 29] \nDr. Smith eventually returned to Little Rock on Thursday, per usual. Other than some days \noff, he continued working in Helena until his release from employment with the respondent. \nId. \nDr. Smith confirmed that he sought chiropractic care before falling, and that “[Dr.] \nBlackmon  would  do  adjustments  on  you  and  kind  of  relieve  some  of  that  tenseness  and \nsoreness....” [TR at 30]   Dr. Blackmon’s treatments loosened tense areas and helped with \nthe claimant’s range of motion.  [TR at 31]  Dr. Smith also confirmed that he was taking no \nmedication as a result of the fall and that he had no work restrictions.  [TR at 31]  Referring \nback  to  his  deposition  and  being  asked  about  his  release  from  employment,  the  claimant \naffirmed that he was released because of a malpractice claim brought against him.  [TR at \n32] \nThe examination continued, referencing the EMS records from Pafford: \nQ:  It goes on to say that, “He states that just prior to falling he felt \ndizzy and light-headed.” Did you tell them that? \n \nA:  I don’t recall that. \n \nQ:  You don’t know one way or the other? \n \nA: No. \n. . .  \n \nQ:  ... at Helena Regional, do you remember describing the fact that you \nwere dizzy or giddy at the time? \n \nA:  I couldn’t say, Counselor. \n\nK. SMITH- H104308  \n6 \n \nQ:  Okay. Page 16 of the medical exhibit says: “This 65-year-old white \nmale dentist stood up, felt dizzy and lightheaded, and then fell to the \nfloor.” Do you know where  they would  have  gotten  that  history  if  not \nfrom you? \n \nA:  I’m not sure.  [TR at 34-35] \n \nThe cross-examination concluded with Dr. Smith stating that he did not return to Dr. \nHedges  or  anyone  else  at  the  family  medicine  clinic  after  the  outpatient  procedure  was \nperformed. Id. \nC.  Claimant on re-direct and re-cross: \nDr. Smith attributed the report of his “giddy” behavior after falling to experiencing a \n“range of emotions and behaviors because I was hurting.” [TR at 36.] His testimony concluded \nshortly afterwards, and he rested his case. \nD.  Respondent Mr. James “Jim” Cavanaugh, claims adjuster for carrier-respondent:  \nMr. Cavanaugh explained that Dr. Smith’s claim was assigned for his review and \ninvestigation.  [TR at 40]  He spoke with the claimant on 11 May 2021 and his notes\n1\n reflect \na  conversation  where  Dr.  Smith  relayed  going  to  the  breakroom  and  fainting  or  losing \nconsciousness.  [TR  at  43]  When  asked  again  about  the reported cause  of  the  fall, Mr. \nCavanaugh stated, “You know, in my note I asked him, you know, why did he fall. And you \nknow,  I  summarized  the  he  admitted  he was standing in the breakroom and fainting... it \nmight have likely been related to his blood pressure.”  [TR at 45] \nMr.  Cavanaugh  said that  calls  with claimants are sometimes  recorded,  but  the  call \nwith Dr. Smith was not and that he took notes instead.  He did not recall any medical records \nbeing available or made part of the claim file at the time of the call.  [TR at 48] \n E.  Claimant on rebuttal:  \n \n1\n Mr. Cavanaugh testified from his memory and refreshed his recollection with contemporaneous notes \nfrom the conversation with Dr. Smith. As he relied on the notes at times, a copy was provided to Dr. \nSmith’s counsel for is review. [TR at 44-45] \n\nK. SMITH- H104308  \n7 \n \n Dr. Smith testified briefly again after Mr. Cavanaugh’s testimony.  He recalled Mr. \nCavanaugh  as  rude  and  reiterated  that  he  did  not  recall  reporting  any  dizziness  or  blood \npressure problems related to his fall.  [TR at 52]  But when asked again about the medical \nreports  of  feeling  lightheaded,  dizzy,  and  giddy  and  whether  the  medical  providers  would \n“have gotten this information from anybody but you,” he responded that they would not.  [TR \nat 54] \n Upon brief examination from the bench, the claimant stated that he was familiar with \nHIPAA, that he had a chance to review his medical records, and that he had not attempted \nto exercise his right under HIPAA to correct or amend the medical records that he took issue \nwith  earlier  in  his  testimony.  [TR  at  55]  He  followed  that  by  saying  that  he  passed  his \nmedical records on to his counsel without reviewing them.  [TR at 56]  \nF.  Medical Records: \n  The  records  from  Pafford  show  that a  call  was  made  at  10:20  AM  and that the \nambulance arrived eight (8) minutes later.  See, Cl. Ex. No 1 at 1. The narrative portion of the \nrecord states that “just prior to falling he  felt  dizzy  and  lightheaded.  The [patient’s vital \nsigns] are stable other than his heart rate, which is noted to be bradycardic.” See, Cl. Ex. No \n1 at 3.  In addition to the basic cardiac monitor, a 12-lead ECG was placed during transport, \n“reading much clearer and showing sinus brady as well.” Id. \n His ED records show that he presented at 11:14 AM with back pain that began about \nan hour prior to admission.  He rated the pain at eight (8) out of ten (10).  See Cl. Ex. No 1 at \n20. The nurse’s notes show that he “felt dizzy and fell backwards hurting his back.” See, Cl. \nEx. No 1 at 20. The physician’s notes show that the claimant “stood up [and] felt dizzy and \nlightheaded, then fell to the floor.”  See, Cl.  Ex.  No  1  at  16. “Slight low back pain” was \ndescribed by the claimant, but on exam he exhibited “No spinal tenderness. No costovertebral \n\nK. SMITH- H104308  \n8 \n \ntenderness. Full range of motion.”  Id.  Ketorolac and then Norco were administered for pain. \nSee, Cl. Ex. No 1 at 21. Imaging was ordered and revealed no significant findings. See, Cl. Ex. \nNo 1 at 22-23.  \nHis  discharge  summary  shows  Dr. Smith’s diagnosis as “dizziness and giddiness; \nsprain of ligaments of lumbar spine” and that he was provided discharge instructions for \ndizziness and lumbar strain.  See, Cl. Ex. No 1 at 5.  The physician prescribed Naprosyn and \nNorco  for  pain  control.  Id.  Dr. Smith’s signature appears on the 19 April 2021 discharge \nform.  Id. \nThe claimant’s fist encounter note with Dr. Blackmon is dated 7 May 2021, and it \nreflects: \nKeith sought  treatment  today,  complaining  of  intermittent sharp  and \nthrobbing  discomfort of  the  low  back.  He  describes  that  the  discomfort \nincreases with movement. On a scale of 1 to 10, with 10 being the most severe, \nhe,  using  a  VAS,  describes  the  intensity  as  a  7  and  indicated  that  the \ndiscomfort occurs approximately 60% of the time. He states the discomfort is \nthe same since his last visit.  See, Cl. Ex. No 1 at 24 \n \nThe note reflects a diagnosis of “wedge compression fracture of T11-T12 vertebra,” but a \nseparate x-ray imaging report is not included; nor are a “scanned consultation” or “scanned \nexamination” that are mentioned in the note.  Id.  The claimant was directed to consult with \nfamily practice medicine for the spine condition. \n Dr. Smith presented to Dr. Hal Hedges at LRFP on 14 May 2021.  See, Cl. Ex. No 1 at \n25.  The clinic note shows that Dr. Smith presented to establish care and that he was seeking \npain  control  options  with  a  recent  fall  and  compression  fracture  diagnosis.  Dr. Hedges \nreviewed the x-rays and noted, “While there is some wedge deformity of T11, I think there is \na  superior  endplate  compression  fracture  of  T12,  instead.”  Id.  He  ordered  an  MRI  and \nplanned to arrange vertebroplasty if the MRI confirmed the compression fracture.  See, Cl. \nEx. No 1 at 26. \n\nK. SMITH- H104308  \n9 \n \n The  MRI  report  is  dated  20  May  2021  and,  indeed,  shows  a  superior  endplate \ncompression fracture at T12.  See, Cl. Ex. No 1 at 27-28.  Advanced facet arthropathy at L4-5 \nand L5-S1 was also found. \n The notes from CHI St. Vincent show that he presented on 1 June 2021 for a radiology \nprocedure to address “intractable back pain secondary to osteoporotic compression fracture.” \nSee, Cl.  Ex.  No  1  at  29-30.  The  report  indicated  that  the  pain  was  “unresponsive  to \nconservative  management,” that a back brace was not used, and that the pain “continued \ndespite therapy.”  See Cl. Ex. No 1 at 32. The discharge plan called for decreased activity for \nthe day, with “progressive activity to normal level tomorrow.”  See, Cl.  Ex.  No  1  at  31.  No \nmedications were prescribed at discharge. \n The claimant returned to Dr. Blackmon’s office on 10 June 2021, with complaints of \n“intermittent tightness, diffuse and tingling discomfort in the low back,” describing the pain \nas five (5) out of ten (10) and occurring fifty percent (50%) of the time.  See, Cl. Ex. No 1 at 34. \nHe stated that his discomfort was better than his last visit, but that his “low back and neck \nand shoulders are still very sore and he is leaving for Florida in the morning.” Id. Dr. \nBlackmon found: \n Hypertonicity in the following areas: left cervical dorsal area, left upper \nthoracic  area  and  lumbosacral  region.  Multiple  subluxations  with  spasm, \nhypomobility and end point tenderness were found at the following levels: C5, \nC7, T1, T2, T5, T7, L4, L5, sacrum, right pelvis and left pelvis. An extremity \nsubluxation was discovered and adjusted in the left shoulder and right knee. \n \n He  assessed,  “Keith  has  had  an  exacerbation.  These  are  episodic  marked \ndeterioration[s] of the patient’s condition due to acute flareups of the presenting conditions.” \nThe plan called for daily treatment for three (3) to five (5) days, then three (3) times per week \nfor three (3) to four (4) weeks, then twice per week for three (3) to four (4) weeks, then once \nper week for three (3) weeks, and then once every two (2) weeks. Id. \n\nK. SMITH- H104308  \n10 \n \n The next record from Dr. Blackmon is a letter dated 8 February 2023 that explained \nhe  saw  Dr.  Smith  one  additional  time  in  June  of  2021,  but  had  not  seen  him  again  until \nNovember of 2022.  See, Cl. Ex. No 1 at 335  \nIV.  ADJUDICATION \n The stipulated facts, as agreed during the prehearing conference, are outlined above.  \n It  is  settled  that  the  Commission,  with  the  benefit  of  being  in  the  presence  of  the \nwitness  and  observing  his  or  her  demeanor,  determines  a  witness’  credibility  and  the \nappropriate weight to accord their statements. See Wal-Mart Stores, Inc. v. VanWagner, 337 \nArk. 443, 448, 990 S.W.2d 522 (1999).   \nUnder Arkansas’ workers’ compensation laws, a worker has the burden of proving, by \na preponderance of the evidence, that he sustained a compensable injury as the result of a \nworkplace  incident.  Ark.  Code  Ann.  §  11-9-102(4)(E)(i).  A  compensable  injury  must  be \nestablished  by  medical  evidence  supported  by  objective  findings.  Ark.  Code  Ann.  §  11-9-\n102(4)(D). Objective  medical  findings  are  those  findings  that  cannot  come  under  the \nvoluntary  control of the  patient.  Ark.  Code  Ann.  §  11-9-102(16)(A)(i).  Causation  does  not \nneed to be established by objective findings when the objective medical evidence establishes \nthat an injury exists and other nonmedical evidence shows that it is more likely than not that \nthe injury was caused by an incident in the workplace. Bean v. Reynolds Consumer Prods., \n2022 Ark. App 276, 646 S.W.3d 655, 2022 Ark. App. LEXIS 276, citing Wal-Mart Stores, Inc. \nv. VanWagner, supra. \nHere,  the  claimant  alleges  that  his  back  injury  occurred  by  specific  incident.  The \nclaimant must establish four (4) factors by a preponderance of the evidence to prove a specific \nincident injury: (1) that the injury arouse during the course of employment; (2) that the injury \ncaused  an  actual  harm that  required medical  attention;  (3)  that  objective findings support \nthe medical evidence; and (4) that the injury was caused by a particular incident, identifiable \n\nK. SMITH- H104308  \n11 \n \nin  time  and  place.  See Cossey  v.  G.  A.  Thomas  Racing  Stable,  2009  Ark.  App.  666,5,  344 \nS.W.3d 684, 689. \nThe respondents denied Dr. Smith’s specific incident back injury claim, arguing that \nit occurred outside the course and scope and/or that it was idiopathic in nature. [TR at 5]  \nAn idiopathic injury is “one that is personal in nature or peculiar to the individual; \ntherefore,  it  is  not  work-related.” Bean, supra,  citing Little  Rock  Convention  &  Visitors \nBureau v. Pack, 60 Ark. App. 82, 959 S.W.2d 415 (1997). \nA. Claimant failed to prove, by a preponderance of the evidence, that he suffered a   \ncompensable injury. \n \nBased on the evidence before me, I do not find it more likely than not that the claimant \nsuffered a compensable back injury.  \nFirst, I did not find the claimant’s testimony to be credible and, accordingly, give it \nlittle weight. There is no dispute that the claimant fell at work on a Monday morning. The \nexact circumstances around that fall are unclear, and the claimant brings his credibility into \nquestion  largely  in  that  regard.  He  stated  that  he  tripped  over  a  chair,  but  he  refused  to \naccept  as  accurate several contemporaneous statements  credited  to  him regarding  his  fall.  \nIn his reports to the EMS service, the ED nurse, and the attending physician, the medical \nrecords all reflect feelings of dizziness and/or lightheadedness immediately prior to his fall. \nHe stated that he had no recollection of such reports, but acknowledged that he was the only \nperson  who  would  have  offered the  information.  When  asked  on  cross-examination  if  he \nremembered  describing  feeling  dizzy  or  giddy  to  the  ED  staff,  he  evasively  responded, “I \ncouldn’t say, Counselor.” \nThe  fall  happened  around  8:30  AM,  and  the  ambulance  report  shows  the  crew \nencountering  the  patient  two (2) hours later. The 11:14 AM nurse’s note indicates that he \nreported feeling dizzy and falling backwards. About ten (10) minutes later, the physician’s \n\nK. SMITH- H104308  \n12 \n \nnote records that he felt dizzy and lightheaded and fell to the floor.  At one point he appears \nto attribute anything said or done after falling to his being in pain.  At another he said he \nwas sort of in shock and doesn’t really remember the details after falling.  He reported no \nsort of head injury and showed no signs of distress or cognitive impairment at any point in \nhis treatment. \nGiven the timeline between the fall and the multiple reports to medical providers that \nhe felt dizzy and lightheaded before falling, that he made no reports of and displayed no signs \nof cognitive impairment,  and  that  he performed  dentistry,  apparently  without  issue, on  at \nleast one patient to whom he had administered anesthesia prior to falling, I cannot credit his \nstatements  that  he  had  no  recollection  of  reporting  feeling  dizzy  or  lightheaded  prior  to \nfalling.   Similarly, I  struggle  to  accept  his  position  that  he was  unaware that  his medical \nrecords  reflected  assessments  of  dizziness,  when  the same  appears  on  the  discharge \ninstructions  that  bear  his  signature.  Moreover,  the  contemporaneous  notes  from  the \ninsurance adjuster (whose testimony I found credible) reflect that Dr. Smith fainted or lost \nconsciousness and made no mention of tripping over a chair. Given the answers he offered \nand his demeanor around this line of testimony, I find his testimony to lack credibility.\n2\n \nAffording little evidentiary value to the claimant’s version of the facts, I turn to the \navailable medical evidence. The law requires that I weigh medical evidence as I must weigh \nany other evidence. See Beliew v. Lennox Indus., 2010 Ark. App. 112, 2010 Ark. App. LEXIS \n95.  Where evidence may be conflicting, I am to attempt to reconcile the same and determine \nthe true facts. Id., citing Hargis Transp. V. Chesser, 87 Ark. App. 301, 190 S.W.3d 309 (2004). \n \n2\n Additionally, while it is not in my view directly related to whether he sustained a compensable injury, \nit does speak to his credibility that Dr. Smith likened his beginning work again at the end of June as \n“having recuperated enough where I could begin to work.” This weeks’ long convalescence does not \nring consistent with the discharge summary from his outpatient procedure that called for a return to \nnormal  activity  the  following  day.  It  does,  I  find,  call  further  into  question  his  candor  in  testifying \nbefore the Commission. \n\nK. SMITH- H104308  \n13 \n \nThe following facts are uncontested: the claimant fell while at work in April, he was \ndiagnosed with a compression fracture in May, and he underwent an outpatient procedure to \naddress the compression fracture in June.  On the one hand, the contemporaneous medical \nrecords from  HRMC show  no  significant  findings  of acute  injury.  On  the  other  hand,  the \nclaimant  presented  to  Dr.  Blackmon  several  weeks  after  falling  and  imaging  revealed a \ncompression fracture of his thoracic vertebra.  That 7 May 2021 record makes no mention of \na fall or any other attempt towards discussing or identifying a mechanism of injury.  Indeed, \nthe note makes clear that “the discomfort is the same since his last visit,” and Dr. Smith \nagreed  on  the  stand  that  he  sought  chiropractic  care prior  to  his  fall.  In  fact,  despite  Dr. \nSmith feeling that the procedure for his compression fracture was a success, he still went on \nafterwards to seek more chiropractic care from Dr. Blackmon, who charted an extensive list \nof objective findings and a months’ long treatment plan for the same.  \nI  do  not  find  objective  evidence  to  support  a  finding  that  Dr. Smith  suffered  a \ncompensable back injury when he fell at work.  The procedure notes appear to reflect a more \nchronic  condition  and  pain  presentation.  “Intractable  pain  related  to  osteoporotic \ncompression  fracture,  unresponsive  to  conservative  management... Pain  has  not  been \nrelieved by conservative measures... Pain has continued despite therapy.” Relevant records \nprior to Dr. Smith’s fall are not available for comparison. But even in the absence of those, I \nfind that it is more likely than not that the compression fracture found in May and treated \nin June of 2021 was idiopathic and not caused by his falling in April.  \nB. Benefits \n \n Because he failed to prove a compensable injury, the claimant’s request for reasonable \nand necessary medical treatment and TTD benefits are moot. \n C.  Attorney’s Fee \n In accordance with the above, the claimant is not entitled to an attorney’s fee. \n\nK. SMITH- H104308  \n14 \n \nV.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":26730,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H104308 KEITH W. SMITH, EMPLOYEE CLAIMANT ROCK DENTAL ARKANSAS, PLLC, AXPM DENTAL MANAGEMENT, EMPLOYER RESPONDENT CINCINNATI CASUALTY Co./CINCINNATI INSURANCE, CARRIER, CARRIER/TPA RESPONDENT OPINION FILED 27 JULY 2023 On hearing before Arkansas Workers’...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:3"],"injuryKeywords":["back","fracture","sprain","lumbar","strain","neck","cervical","thoracic"],"fetchedAt":"2026-05-19T23:05:50.135Z"},{"id":"alj-H207041-2023-07-27","awccNumber":"H207041","decisionDate":"2023-07-27","decisionYear":2023,"opinionType":"alj","claimantName":"Kenneth Williams","employerName":"Malvern School District","title":"WILLIAMS VS. MALVERN SCHOOL DISTRICT AWCC# H207041 NUNC PRO TUNC FILED JULY 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILLIAMS_KENNETH_H207041_20230727.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILLIAMS_KENNETH_H207041_20230727.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.: H207041 \n \nKENNETH WILLIAMS (DEC’D), EMPLOYEE                                             CLAIMANT \n \nMALVERN SCHOOL DISTRICT, EMPLOYER                                       RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION,  \nINSURANCE CARRIER/ THIRD PARTY  \nADMINISTRATOR(TPA)                                                                             RESPONDENT \n \n                                    AMENDED OPINION FILED JULY 27, 2023 \n   \n \nThe  Claimant  represented  by  the  Honorable  Andy  L.  Caldwell,  Attorney  at  Law,  Little  Rock \nArkansas.    \n \nThe Respondents were represented by the Honorable Melissa Wood, Attorney at Law, Little Rock, \nArkansas. \n   \nNUNC PRO TUNC ORDER  \n \nThe  parties  have  jointly  asked  the  undersigned  to  amend  the  Stipulations  portion  of  my \nOpinion filed in the above-referenced claim on June 29, 2023.  Therefore, pursuant to Ark Code \nAnn. §11-9-713(d) (Repl. 2012) said Opinion is hereby amended to add the stipulation described \nbelow.   \nSpecifically,  at  the  hearing,  the  Respondents  withdrew  their  contention  regarding  the \nClaimant’s widow not being “wholly and actually” dependent upon the Claimant at the time his \ndeath.  In light of that, the parties asked in an e-mail on July 17, 2023 that I modify the Opinion to  \nadd  the  following  stipulation: “In  the  event the  Commission’s  finds  that  the  Claimant  was \nperforming employment services at the time of his death, the widow was “wholly and actually” \ndependent  upon  him  at  all  relevant  times  and  entitled  to  benefits  at  the  stipulated  amount  of \n$547.00 per week.”   \n\nWilliams – H207041 \n \n \nTherefore, said Opinion is hereby modified solely to reflect this additional stipulation.  In \nall other respects, the Opinion shall remain the same and shall not be otherwise affected. \n IT IS SO ORDERED. \n            \n \n                                                                                      ______________________________                                       \n        HON. CHANDRA L. BLACK \n        Administrative Law Judge","textLength":2160,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H207041 KENNETH WILLIAMS (DEC’D), EMPLOYEE CLAIMANT MALVERN SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/ THIRD PARTY ADMINISTRATOR(TPA) RESPONDENT AMENDED OPINION FILED JULY 27, 2023 The Claimant represented b...","outcome":"modified","outcomeKeywords":["modified:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:05:52.198Z"},{"id":"full_commission-G903144-2023-07-26","awccNumber":"G903144","decisionDate":"2023-07-26","decisionYear":2023,"opinionType":"full_commission","claimantName":"Preston Allen","employerName":"Staffmark Investments, LLC","title":"ALLEN VS. STAFFMARK INVESTMENTS, LLC AWCC# G903144 JULY 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Allen_Preston_G903144_20230726.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Allen_Preston_G903144_20230726.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G903144  \n \nPRESTON ALLEN, \nEMPLOYEE \n \nCLAIMANT \nSTAFFMARK INVESTMENTS, LLC,  \nEMPLOYER \n \nRESPONDENT \nACE AMERICAN INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2 \n  \n      \nOPINION FILED JULY 26, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents #1 represented by the HONORABLE MELISSA WOOD, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents #2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \n \n ORDER \n An administrative law judge filed an opinion on March 28, 2023 and \nfound that the claimant’s claim should be denied and dismissed.  The \nclaimant filed a timely notice of appeal to the Full Commission.  A Legal \nServices Specialist corresponded with the parties on May 31, 2023 and \nestablished an initial briefing schedule.  The claimant was subsequently \ngranted a 30-day extension in which to file his brief, and the claimant has \nnow filed a timely request for a second 30-day extension.  Respondent No. \n\nALLEN - G903144  2\n  \n \n \n1 and Respondent No. 2 inform the Commission that they do not object to \nanother extension.   \n The Full Commission therefore grants the claimant’s request for a \nsecond extension.  We direct the Clerk of the Commission to establish a \nfinal briefing schedule. \n IT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1747,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G903144 PRESTON ALLEN, EMPLOYEE CLAIMANT STAFFMARK INVESTMENTS, LLC, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE COMPANY, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.232Z"},{"id":"full_commission-H204212-2023-07-26","awccNumber":"H204212","decisionDate":"2023-07-26","decisionYear":2023,"opinionType":"full_commission","claimantName":"Johnny Hayes","employerName":"Wal Mart Associates, Inc","title":"HAYES VS. WAL MART ASSOCIATES, INC. AWCC# H204212 JULY 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Hayes_Johnny_H204212_20230726.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Hayes_Johnny_H204212_20230726.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H204212 \n \nJOHNNY R. HAYES, \nEMPLOYEE \n \nCLAIMANT \nWAL MART ASSOCIATES, INC.,  \nSELF-INSURED EMPLOYER \nRESPONDENT \n  \n      \nOPINION FILED JULY 26, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL C. STILES, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nDecember 29, 2022.  The administrative law judge found that the claimant \nfailed to prove he sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant did not \nprove by a preponderance of the evidence that he sustained a \ncompensable injury.     \nI.  HISTORY \n Johnny Ray Hayes, now age 59, treated at Midwest Orthopaedic \nInstitute on February 5, 2013: \nJohn Hayes is a 49-year-old right-hand-dominant gentleman \nwho sustained an injury on 2/4/13.  He states he is the \n\nHAYES - H204212  2\n  \n \n \noperations manager at Northern Illinois Fence in Cortland.  He \nwas using a Bobcat to clear the snow so that his employees \nwould not get injured.  While he was trying to get out of the \nBobcat he slipped and fell.  He struck the L1-2 area against a \nprominent hard area on the Bobcat and fell also onto his right \nelbow, axially loading his shoulder.  He states that he felt as \nthough something ripped in his shoulder.  He noticed that he \ncould not really move his arm after he fell. \nThe patient has some pain at his right elbow as well.... \nRADIOGRAPHIC EVALUATION:  Multiple views of the right \nelbow show posterolateral olecranon spurring which is mild.   \n \n A physician’s impression was “1.  Right shoulder weakness likely \nassociated with rotator cuff tear.  2.  Elbow contusion which is presently \nasymptomatic.” \n The claimant testified that he became employed with the \nrespondents in May 2021.  The claimant testified that he initially worked in \nthe respondent-employer’s Receiving Department, “Unloading freight and \nputting it on the conveyor belt.”  After several months, the claimant testified, \nhe began unloading trucks for the respondents, a “quantity of 700 boxes an \nhour, 7,000 a night.”  The claimant testified that he unloaded trucks 11 \nhours daily, three days per week.   \n The claimant testified on direct examination: \nQ. And what happened to your right elbow as you worked \nfor Walmart? \nA. It progressively started hurting more and more as I’m  \nlifting heavier freight off the floor and repetitive motion \nis basically the way I saw it....I was hurting more and \nmore in my right elbow as I was doing repetitive \nmotion, unloading the freight out of a semi.   \n \n\nHAYES - H204212  3\n  \n \n \nQ. Can you describe the motion that you were making? \nA. From right to left, right to left, keeping my feet in place.   \nQ. And that was using both hands? \nA.   Yes.... \nQ. And how did the box get off the truck? \nA. From me picking the box up and me putting the box on  \nthe conveyor. \nQ. So you were standing in the truck? \nA.   Yes....The conveyor belt was manually operated where  \nI could bring it in and out of the semi, so it would be  \nright next to me as I am unloading.   \nQ. And when you began having these issues with your  \nright elbow, did you report it to anybody at work? \nA. Yes, I reported it to Heather Mays about freight being  \nheavy and having to pick it up off the floor, can we do  \nsomething about it, it’s really bothering my arm.... \nQ. And did you speak to anyone else about your right arm  \nhurting? \nA. Yes.  Tim Wicks I believe is his last name.   \nQ. And who is he?  What’s his position? \nA. Manager at Walmart.  He was someone that I reported  \nto, also, like Heather Mays.   \nQ. And did he respond to you in any way when you  \nreported it? \nA. He also took photos, said he would e-mail higher up  \nand see if we could get this changed because it is an \nissue, and we understand that it is hurting your arm, \nand that’s what they told me and it never – it never \nworked out.  I had no response from them afterward.   \nQ. So your job was never changed? \nA. No.... \nQ. When do you believe that you began complaining of  \nyour arm? \nA. Around November of 2021.  \n\nHAYES - H204212  4\n  \n \n \n  \nQ. And between November of 2021 and January of 2022,  \nhow did your arm do? \nA. It was in pain every night.  I had to wear a brace on my  \narm.  I had to take Tylenol every day.  It was not a \ngood feeling, and it was pulling pain in my right \nelbow.... \nQ. And the receiving department, is that the department  \nyou were in in January of 2022? \nA.       Yes. \n \n The parties stipulated that the employee-employer-carrier \nrelationship existed on January 20, 2022.  The claimant testified on direct \nexamination: \n  Q. What happened on January 20\nth\n? \nA. Me and my wife went to Home Depot to get some  \nbuilding materials to do a small project, and I reached  \nout to grab a sheet of plywood and I pulled it and  \nsomething pulled in my arm and snapped and popped,  \nand it went from all the way to my wrist and it – I could  \nnot extend my arm.  I could not pull my arm to my  \nchest.   \nQ. And was that – the feeling that you felt, was that in your  \nright elbow? \nA.       Yes.   \n \n According to the record, the claimant treated at Mercy Hospital \nNorthwest Arkansas on January 20, 2022.  The claimant’s Chief Complaint \nwas “Arm pain (Pt was carrying piece of plywood and felt ‘pop’ in R arm.  \nHx of previous ligament repair in shoulder).” \nDr. Clarence J. Dye examined the claimant on January 20, 2022: \n\nHAYES - H204212  5\n  \n \n \nPatient is a 58-year-old man who presents for right arm pain.  \nPatient reports he was at work today and was moving boxes \nhad a pop in his right upper arm with acute onset of pain has \nbeen moderate to severe and worse with extension of his \narm.... \nRight upper extremity neurological exam is intact including \nsensation to light touch to thenar, medial palm, lateral dorsum \nof hand, and medial dorsum of hand.... \nElbow with no tenderness.  No gross deformity, no swelling, \nno warmth, and no erythema.  Full active ROM with flexion \nand extension.... \nHe was given a prescription for hydrocodone for breakthrough \npain and fitted with an arm sling and will need to follow-up \nwith a doctor from the Mercy doctor finder service with \npossible need for orthopedic referral and further imaging if \ncontinued symptoms. \nPatient reported improvement on reexamination and \nagreeable to discharge.  Denied new complaints.... \n \n Dr. Dye diagnosed “Pain of right upper arm (Primary).”  A nurse \nnoted on January 20, 2022, “Pt stated he was lifting plywood and heard a \npop in his elbow then it started hurting.  Pt states he can bend his right arm \nbut not straighten it out.”  Dr. Dye signed a note on January 20, 2022 which \nindicated, “John Hayes is able to return to work on:  01/26/2022.”   \nThe claimant e-mailed representatives of the respondent-employer \non January 21, 2022: \nHi guys I have some bad news I was lifting some plywood last \nnight and I either broke my arm or tore tendons in my right \narm I went to the ER they told me I probably tore a tendon or \nripped a bicep muscle they were not able to go a MRI and \nwas told to go to a regular physician to get a appointment with \na specialist due to the fact that I have previous surgery on my \narms, I called this morning and talked to Alicia in HR and she \ntold me to go and file a claim on Sedgwick I’m pretty sure I did \nit right I have the claim number the emergency room doctor \n\nHAYES - H204212  6\n  \n \n \ntold me to take off work at least until Wednesday I will let you \nknow the outcome after I see a orthopedic specialist, I would \ncome back to work regardless of the pain but I am unable to \nstraighten my arm so I don’t think I would be any good, I’m not \nsure what the outcome is going to be but I will keep you \ninformed Thank you.   \n \n An APRN noted on January 26, 2022: \nJohn presents in clinic with his spouse to establish care and \nfor his ED follow up.  He was seen in the ED January 20\nth\n with \ncomplaints of right arm pain.  He might have injured himself at \nwork.  He admits to throwing boxes at work, so he’s dealt with \nmild pain and swelling to his right upper arm for the past \nmonth.  He also might have injured himself the day of his ED \nvisit.  He states he was moving a sheet of plywood while at \nHome Depot.  He also mentioned having history of rotator cuff \nsurgery bilaterally. \nNo imaging was performed.  He was prescribed Norco for \npain relief, which he did not pick up.  He continues having \nsharp pain along his right elbow, with radiating pain down to \nhis right wrist and right shoulder.... \nMusculoskeletal exam:  muscular tenderness noted along \nright medial epicondyle.   \n \n The diagnosis on January 26, 2022 included “Right arm pain.”  The \nAPRN stated on January 26, 2022, “He may return to work Monday, \nFebruary 14\nth\n.”   \n Dr. Jeffrey Johnson provided a Patient Care Summary on February \n10, 2022: \n1.  Mr. Hayes was exceedingly frustrated with our front office \ntoday about the fact that he was not having an MRI today.  \nHe is also very frustrated that he was not contacted about \nthe clinic being canceled although again at the end of the \nclinic visit my office manager visited with him about our \nattempts to contact him.   \n\nHAYES - H204212  7\n  \n \n \nHe was also frustrated that I would not fill out his extensive \nSedgwick FMLA paperwork today before he left the office.  \nI spoke with both he and his accompanying family member \nthat this is not going to be filled out in lieu of me seeing \nother patients but I be happy to give him a work note that \nstates he has a 10 pound limit on his right arm pending the \nresults of his MRI.  His working diagnosis is medial \nepicondylitis.  I would recommend an MRI as below.... \nVicki provided him with a 10 pound limit on his right arm.  \nHe told her specifically “it was a waste of time to have \nbeen sent here.”  He was also quite frustrated with me and \nI addressed this directly.  He was frustrated about his \nweight, about the delay because of the weather, and about \nthe fact that he was not having an MRI today.  I spoke with \nboth he and his family member that other providers do not \nsend people to other doctors offices with orders for \nimaging studies but that he was referred here for a \nconsultation and I would recommend an MRI because of \nthe “pop” in his medial elbow.   \nI understand that his job does not have limited duty.  My \nworking diagnosis is medial epicondylitis and I am giving \nhim a 10 pound limit pending his MRI report especially \ngiven the fact that he has no swelling, no ecchymosis, and \nfull elbow range of motion. \n2.  With respect to the main reason that he is here, his medial \nelbow pain.  My working diagnosis is medial epicondylitis \nas his exam is consistent with this.  I do think that it is \nworth obtaining a MRI arthrogram of his right elbow given \nthe “pop” on 1/22/2022 when he picked up a sheet of \nplywood.   \nI would recommend the MRI be done at Washington \nRegional....I will order an MRI arthrogram of the right \nelbow to evaluate medial elbow pain and “pop.”   \n3.  He also mentions that he has pain in his shoulder and he \nasked if the work-up would be examining that.  We will \nrequest records from Dr. Glasgow regarding his shoulder \nspecifically I need to know if she did a tendon transfer from \nthe elbow to his shoulder which may be what he is \ndescribing.   \nI offered to send him to a shoulder doctor.  At the moment, \nwe will hold off on this.   \n\nHAYES - H204212  8\n  \n \n \n4.  I will see him back when the MRI is complete.  We \ndiscussed that that would not be the same day of the \nstudy.  X-rays are not required on return.   \n \nDr. Andreas Chen examined the claimant on March 1, 2022: \nA 58-year-old right-hand dominant male, who works at the \nWal-Mart distribution center, who presents today for \nevaluation of his right upper extremity.  He states that he was \nlifting a sheet of plywood on 01/20/2022 when he felt a pop \nand had significant pain that radiated from the medial aspect \nof his elbow to the shoulder and from the radial aspect of his \nelbow to his wrist.  Since then, he has been having pain and a \nbump over the medial aspect of the elbow.  Of note, he \npreviously had a dislocation of his right shoulder which \nrequired a labral repair and rotator cuff repair at an outside \ninstitution.  He notes that he has been having significant pain \nin the medial aspect of the elbow that radiates to his pinky and \nhis small fingers.  He is here today for evaluation and care.... \nEXTREMITIES:  Right upper extremity examination reveals no \ngross deformities.  He does have what appears to be an \navulsion of his medial flexor pronator mass *** the medial \nepicondyle.  He is significantly tender to palpation over the \nmedical epicondyle.  He has significant pain with palpation of \nthe ulnar nerve.... \nIMAGING:  AP and lateral of the right elbow were reviewed \nfrom previously revealing no fractures or dislocations.  No \narthritic changes are noted.   \n \n Dr. Chen assessed “A 58-year-old male with a potential avulsion of \nhis right flexor pronator mass from the medial epicondyle versus medial \nepicondylitis.  He also likely has right cubital tunnel syndrome.”  Dr. Chen \nplanned additional diagnostic testing, and occupational therapy.   \n An occupational therapist noted on March 4, 2022, “Patient reports \nhe was at Home Depot, lifting a piece of plywood when he felt a ‘pop’ in his \nright UE.  He had an immediate onset of pain.  Of note, he had right \n\nHAYES - H204212  9\n  \n \n \nshoulder surgery about 8 years ago.  Since the injury, he complains of \nnumbness and tingling in the RF and SF.  He describes the pain in his ulnar \nelbow and this is sensitive to touch.”  It was also noted on March 4, 2022, \n“Patient does work at Walmart.  He is currently off on FMLA.  His job \nrequires heavy lifting.”  The occupational therapist reported, “It does appear \nhe had swelling/bulge in flexor mass of the forearm.” \n An MRI of the claimant’s right elbow was taken on or about March \n15, 2022 and was compared with radiographs from January 26, 2022.  The \nfollowing impression resulted: \n1.  Medial epicondylitis with associated high-grade partial-\nthickness undersurface tear of the common flexor tendon \nat its humeral attachment. \n2.  Insertional biceps tendinosis with high-grade partial-\nthickness tear of the short head of the biceps tendon at its \ninsertion on the radial tuberosity.  Adjacent focal grade 1 \nstrain of the supinator muscle medially.   \n3.  Additional mild tendinosis of the distal triceps and common \nextensor tendon origin.   \n \n The claimant continued to receive occupational therapy visits.   \n The claimant followed up with Dr. Chen on April 1, 2022: \nA 58-year-old male, who presents back today for evaluation of \nhis medial elbow.  He has been having pain there.  Still he \nrecently underwent a nerve conduction study and MRI of his \nelbow.  He is here today for further evaluation and care.   \nPHYSICAL EXAMINATION:  Right upper extremity \nexamination reveals a palpable step-off due to the flexor \npronator mass avulsion just distal to the medial aspect of the \nelbow.... \n\nHAYES - H204212  10\n  \n \n \nMRI of his elbow reveals an avulsion of his medial flexor \npronator mass.  It was retracted by approximately 1 cm.  I do \nnot notice a UCL tear.   \nNerve conduction studies from Dr. Barbara Bess from \n03/30/2022 were reviewed revealing decreased velocities at \n39.4 m/sec in right ulnar nerve.  No diminishment in amplitude \nis noted.  He has no EMG changes noted.   \n \n Dr. Chen assessed “A 58-year-old male with right cubital tunnel \nsyndrome and an avulsion of his right flexor pronator mass.  PLAN:  I told \nhim that he has 2 things going on.  We can fix those at the same time.  \nWhat I can do is an in-situ cubital tunnel release.  During that same \nprocedure, I can repair of the flexor pronator mass.  It is not going to be \n100% though, but hopefully it will help him with that pain.”   \n Dr. Chen performed surgery on April 11, 2022:  “1.  Right cubital \ntunnel release.  2.  Right flexor pronator origin avulsion repair.”  The pre- \nand post-operative diagnosis was “1.  Right cubital tunnel syndrome.  2.  \nRight medial epicondylitis.”  The claimant received follow-up treatment after \nsurgery.   \n Dr. Chen noted on July 1, 2022: \n50-year-old male, who is now almost 12 weeks out from his \nsurgery, he has been doing good, he is still sore, he is still \nweak on his elbow.  He states that it feels like he gets stiff \nespecially in the mornings.  He is unable to fully extend his \nelbow.  He notes that he has pain especially when he is using \na nail gun.  He also notes that when he is slapping something, \nit hurts him significantly over the medial aspect of the elbow.  \nHe has not done any therapy as he is without insurance.  He \ncurrently has an attorney to try to get on Workman’s Comp.... \n\nHAYES - H204212  11\n  \n \n \nPLAN:  The patient tells me that he was having significant \npain in his right medial aspect of the elbow before his final \ninjury on 01/28/2022.  He states that he was doing significant \nrepetitive motion of lifting of boxes and had been lifting 7000 \nboxes in an 11-hour shift.  This may have contributed to his \ninjury over the medial aspect of the elbow.  Currently, he is \nunable to do the same type of work as that requires a \nsignificant amount of repetitive motion and significant amount \nof resistance on the elbow and may impair the repair.  I told \nhim I do not think that he would be able to qualify for \ngovernment disability as he would be able to do other jobs, \nbut he would have significant difficulty going back to his \nprevious job.  I do think that this will get better and I think that \nhe will get stronger, but it will take some time.  There is a long \ndelay prior to undergoing a surgery.  Let us see him back in \nanother two months for repeat evaluation.   \n \n Dr. Chen assessed “A 58-year-old male, 11-1/2 weeks status post \nright cubital tunnel release and right flexor pronator repair.”   \nA pre-hearing order was filed on August 4, 2022.  According to the \ntext of the pre-hearing order, the claimant contended that he was “entitled \nto medical treatment and temporary total disability benefits for his right \nupper extremities (sic) injury.  Claimant reserves all other issues.” \n The parties stipulated that the respondents “have controverted the \nclaim in its entirety.”  The respondents contended, “1.  The respondent \ncontends the claimant, who was hired on May 24, 2021 did not sustain a \ncompensable gradual-onset elbow injury (that culminated on January 20, \n2022) as defined by Arkansas law.  According, the claimant is not entitled to \nany benefits whatsoever.  2.  The respondent has denied and controverted \nthis claim in its entirety; thus, the respondent has not paid any benefits to or \n\nHAYES - H204212  12\n  \n \n \non behalf of the claimant as a result of his purported right elbow injury.  3.  \nThe claimant’s supposed injury did not occur out of and in the course and \nscope of the claimant’s employment for the respondent employer.  4.  The \nrespondent respectfully contends that the claimant’s job for the respondent \nemployer was neither rapid nor repetitive.  5.  The claimant is not entitled to \nany benefits herein, as the claimant’s need for medical treatment, if any, is \nunrelated to the supposed gradual-onset injury that culminated on January \n20, 2022.  Instead, the claimant’s current ailments and need for medical \ntreatment, if any, is related to any unrelated and/or pre-existing condition.  \n6.  In the alternative, if it is determined the claimant sustained a \ncompensable injury, then the respondent hereby requests a setoff for all \nbenefits paid by the claimant’s group health carrier, all short-term disability \nbenefits received by the claimant, all long-term disability benefits received \nby the claimant, and all unemployment benefits received by the claimant.  7.  \nThe respondent reserves the right to amend and supplement its contentions \nand position after additional discovery has been completed.”   \n The parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on \nJanuary 20, 2022. \n2.  If compensable, whether claimant is entitled to temporary \ntotal disability benefits and medical benefits. \n3.  Compensation rates.   \n4.  Attorney fees.   \n \nThe claimant followed up with Dr. Chen on September 8, 2022:   \n\nHAYES - H204212  13\n  \n \n \nA 59-year-old male, who is now 5 months out from his \nsurgery.  He has been doing poorly.  He continues to have \npain over the medial and lateral aspects of the elbow.  \nUnfortunately, due to his insurance status, he has been \nunable to go to therapy visits, but he states that he is getting \nworkman’s comp approved right now.  He notes that his \nthumbs have also been triggering - this is not related to his \nworkman’s comp.... \nHe has not done any therapy.  Usually, I do send people to \nTherapy after a flexor pronator repair.  I would like for him to \nbe therapy (sic).  I would like him to sign up for Mercy \nFinancial Aid if he is ineligible for Workman’s Comp.  I do \nthink that this is a Workman’s Comp injury though.  I am going \nto send him to Therapy for the medial and lateral aspects of \nthe elbow.  I ultrasounded his elbow.  He does have \nsignificant inflammation and signal over the lateral epicondyle, \nbut not over the medial epicondyle.  I want to see him back in \nanother 6 weeks for repeat evaluation to see how is therapy is \ndoing.  He wants to wait until he gets insurance to get his \ntrigger fingers taken care of.  I told him I can give him an \ninjection at that point.    \n \n Dr. Chen assessed “A 59-year-old male, with right medial and lateral \nepicondylitis even after a flexor pronator repair.”   \nAfter a hearing, an administrative law judge filed an opinion on \nDecember 29, 2022 and found that the claimant failed to prove he \nsustained a compensable injury.  The administrative law judge therefore \ndenied and dismissed the claim.  The claimant appeals to the Full \nCommission.     \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides in pertinent part: \n\nHAYES - H204212  14\n  \n \n \n(A)  “Compensable injury” means: \n(ii)  An injury causing internal or external physical harm to the \nbody and arising out of and in the course of employment if it is \nnot caused by a specific incident or is not identifiable by time \nand place of occurrence, if the injury is: \n(a)  Caused by rapid repetitive motion.... \n \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \nArk. Code Ann. §11-9-102(4)(Repl. 2012) further provides in \npertinent part: \n(E)  BURDEN OF PROOF.  The burden of proof of a \ncompensable injury shall be on the employee and shall be as \nfollows: \n(ii)  For injuries falling within the definition of compensable \ninjury under subdivision (4)(A)(ii) of this section, the burden of \nproof shall be by a preponderance of the evidence, and the \nresultant condition is compensable only if the alleged \ncompensable injury is the major cause of the disability or need \nfor treatment.   \n \n Preponderance of the evidence means the evidence having greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 \nArk. App. 269, 101 S.W.3d 252 (2003).  “Major cause” means “more than \nfifty percent of the cause,” and a finding of major cause shall be established \n\nHAYES - H204212  15\n  \n \n \naccording to the preponderance of the evidence.  Ark. Code Ann. §11-9-\n102(14)(Repl. 2012).    \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable gradual-onset injury on January 20, 2022.”  The \nFull Commission finds that the claimant did not prove by a preponderance \nof the evidence that he sustained a compensable injury.  The claimant \nbecame employed with the respondents in May 2021.  The claimant \ntestified that he unloaded boxes for the respondents at a rate of “700 boxes \nan hour,” and the claimant described his work as involving “repetitive \nmotion.”  The claimant testified that he wore a brace on his right arm. \n The parties stipulated that the employee-employer-carrier \nrelationship existed on January 20, 2022.  The claimant testified that he \nwas away from the respondents’ workplace at the time of the alleged injury.  \nThe claimant testified that while shopping at Home Depot, “I reached out to \ngrab a sheet of plywood and I pulled it and something pulled in my arm and \nsnapped and popped, and it went from all the way to my wrist and it - I \ncould not extend my arm.\"  The claimant testified that he felt immediate pain \nin his right elbow.   \n The evidence does not demonstrate that the claimant sustained an \ninjury causing physical harm to his right upper extremity which arose out of \n\nHAYES - H204212  16\n  \n \n \nand in the course of employment.  The claimant has the burden of proving \nsuch an injury in accordance with Ark. Code Ann. §11-9-102(4)(A)(ii)(Repl. \n2012) and Ark. Code Ann. §11-9-102(4)(E)(ii)(Repl. 2012).  The phrase \n“arising out of the employment” refers to the origin or cause of the accident \nand the phrase “in the course of the employment” refers to the time, place, \nand circumstances under which the injury occurred.  J. & G. Cabinets v. \nHennington, 269 Ark. 789, 600 S.W.2d 916 (1980).  In the present matter, \nthe alleged injury to the claimant’s right elbow occurred while he was lifting \na piece of plywood away from the workplace.  A nurse noted on January 20, \n2022, “Pt stated he was lifting plywood and heard a pop in his elbow and it \nstarted hurting.”  The claimant informed the respondent-employer on \nJanuary 21, 2022, “I was lifting some plywood last night and I either broke \nmy arm or tore tendons in my right arm[.]”  An APRN noted on January 26, \n2022, “He states he was moving a sheet of plywood at Home Depot \n[emphasis supplied].”  An injury which occurred at Home Depot was not an \ninjury arising out of or in the course of the claimant’s employment with the \nrespondents. \n Additionally, Dr. Chen reported on March 1, 2022, “He states that he \nwas lifting a sheet of plywood on 01/20/2022 when he felt a pop and had \nsignificant pain that radiated from the medial aspect of his elbow to the \nshoulder and from the radial aspect of his elbow to his wrist.”  Dr. Chen \n\nHAYES - H204212  17\n  \n \n \ndescribed a nonwork-related injury which did not arise out of or in the \ncourse of the claimant’s employment with the respondents.  An \noccupational therapist noted on March 4, 2022, “he was at Home Depot, \nlifting a piece of plywood when he felt a ‘pop’ in his right UE.”  The \noccupational therapist did not describe an injury arising out of or in the \ncourse of the claimant’s employment with the respondents.  In any event, \nDr. Chen performed a right cubital tunnel release and right flexor pronator \navulsion repair on April 11, 2022.  Dr. Chen reported in part on September \n8, 2022, “I would like him to sign up for Mercy Financial Aid if he is ineligible \nfor Workman’s Comp.  I do think that this is a Workman’s Comp injury \nthough.”  It is within the Commission’s province to weigh all the medical \nevidence and to determine what is most credible.  Minnesota Mining & Mfg. \nv. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999).  In the present matter, Dr. \nChen’s opinion that “this is a Workman’s Comp injury” is not supported by \nthe record and is entitled to minimal evidentiary weight.  The weight of \nprobative evidence demonstrates that the claimant did not prove he \nsustained a compensable injury.  The claimant was shopping at Home \nDepot on January 20, 2022 and felt a “pop” in his right elbow while grabbing \na piece of plywood.  This injury occurred away from the workplace and did \nnot arise out of or in the course of the claimant’s employment with the \nrespondents.   \n\nHAYES - H204212  18\n  \n \n \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove by a preponderance of the evidence that he \nsustained a compensable injury.  This claim is respectfully denied and \ndismissed. \n IT IS SO ORDERED.  \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n     \n    ___________________________________ \n    O. MILTON FINE II, Special Commissioner \n     \n \n \nCommissioner Willhite dissents. \n \nDISSENTING OPINION \n \nThe Administrative Law Judge (hereinafter, “ALJ”) found that Claimant \nhas  failed  to  prove  by a  preponderance  of  the  evidence  that  he  suffered  a \ncompensable gradual-onset injury on January 20, 2022.  \nThe  preponderance  of  the  evidence  supports  a  finding  that  the \nclaimant suffered a compensable gradual onset injury to his right elbow. \nA.C.A. §11-9-102(4)(A)(ii)(a) reads:  \n  \n(4)(A) ‘Compensable injury’ means:   \n \n(ii) An injury causing internal or external physical harm to the \nbody and arising out of and in the course of employment if it is \nnot caused by a specific incident or is not identifiable by time \nand place of occurrence, if the injury is:   \n(a) Caused by rapid repetitive motion. ...  \n\nHAYES - H204212  19\n  \n \n \nTo receive benefits for a gradual onset injury, the claimant must prove \nby a preponderance of the evidence that: (1) the injury arose out of and in \nthe course of his or her employment; (2) the injury caused internal or external \nphysical  harm  to  the  body  that  required  medical  services  or  resulted  in \ndisability  or  death;  (3)  that  the  injury  was  caused  by  rapid  and  repetitive \nmotion; (4) the injury was a major cause of the disability or need for treatment; \nand  (5)  that  the  injury  was  established  by  medical  evidence  supported  by \nobjective findings.  Pulaski County Special School District v. Stewart, 2010 \nArk. App. 487 (2010).   \nThe claimant’s right elbow injury satisfies the criteria for a gradual-\nonset compensable injury.  The issue here is whether the claimant’s injury \narose out of and in the course of his employment.  Regarding his job duties, \nthe claimant testified as follows:  \n \n Q. And after that job, what did you do?  \n A. I went to the receiving dock, unloading semis, and that  \nwould be the whole semitruck of boxes, floor to ceiling,  \nunloading those manually onto a conveyor belt.  \nQ. And did you do just one semitruck a night or more?  \nA. It could be up to four.  It would be a multiple – it would  \nbe quantity of 700 boxes an hour, 7,000 a night.  \nQ. And how many hours at a shift did you work?   \nA. We would have – I was on duty for 11 hours.   \nQ. And how many days a week did you work?  \nA. Three days a week; Saturday, Sunday, and Monday.   \nQ. And so during those 11 hours, was there any other duty  \nthat you had other than unloading the truck?       \n\nHAYES - H204212  20\n  \n \n \nA. No.   \nQ. And how heavy would these boxes be?   \nA. Anywhere from half a pound all the way to 65 pounds,  \n 70 pounds. They were not marked. They’re not weighed. \nThey were just – some were heavy, some were not.   \n \nThe claimant testified that he reported that he was having issues with \nhis right elbow to Heather Mays, Tim Wicks, who was a manager, and Brent, \nan  operations manager.    According to  the  claimant, he  began  complaining \nabout the pain in his elbow around November of 2021.  In addition to reporting \nhis  injury,  the  claimant  wore  a  sports  brace  on  his  right  elbow  when  he \nworked which, according to the claimant, was visible.      \nObjective findings of an injury are present in this matter in the form of \na high-grade partial-thickness undersurface tear of the common flexor tendon \nat  its  humeral  attachment  and  an  insertional  biceps  tendinosis  with  high-\ngrade  partial-thickness  tear  of  the  short  head  of  the  biceps  tendon  at  its \ninsertion on the radial tuberosity.  The claimant’s treatment included a right \ncubital  tunnel  release  and  right  flexor  pronator  origin  avulsion  repair.    The \nclaimant’s work-related injury was the sole reason for him to seek treatment \nfor his right elbow.   \nFinally, the claimant’s injury was caused by rapid repetitive motion.  As \ndescribed  above,  the  claimant  unloaded  7,000  boxes  in  an  11-hour  period \nwithout any other intervening job duties.   I  find  that  the  claimant’s  duties \n\nHAYES - H204212  21\n  \n \n \nrequired rapid repetitive motion and this motion caused his right elbow injury. \nThus, I find that the claimant sustained a compensable, gradual-onset injury.   \nI  am  aware  that  the  claimant  sustained  an  injury  lifting  a  piece  of \nplywood  at  Home  Depot.   However,  it  is unlikely  that  lifting  a  three-quarter \ninch piece of plywood would cause the resulting injury to the claimant’s elbow \nif it were not already compromised by his work injury.  Prior to working for the \nrespondent-employer,  the  claimant  had  no  problems  with  his  right  elbow.  \nThus, I find that the claimant’s work injury was the major cause for the \nclaimant's need for treatment.   \nBased on the aforementioned, I find that the claimant has established \nby  a  preponderance  of  the  evidence  that  he  sustained  a  compensable \ngradual onset injury to his right elbow.   \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":33929,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204212 JOHNNY R. HAYES, EMPLOYEE CLAIMANT WAL MART ASSOCIATES, INC., SELF-INSURED EMPLOYER RESPONDENT OPINION FILED JULY 26, 2023 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE EVELYN ...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder","rotator cuff","repetitive","wrist","back","strain"],"fetchedAt":"2026-05-19T22:29:46.248Z"},{"id":"alj-H105783-2023-07-26","awccNumber":"H105783","decisionDate":"2023-07-26","decisionYear":2023,"opinionType":"alj","claimantName":"Karel Ortega","employerName":"Arkansas Public Defender Comms’n","title":"ORTEGA VS. ARKANSAS PUBLIC DEFENDER COMMS’N AWCC# H105783 JULY 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ORTEGA_KAREL_H105783_20230726.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ORTEGA_KAREL_H105783_20230726.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H105783 \n \nKAREL ORTEGA, \nEMPLOYEE                                                                                                              CLAIMANT \n \nARKANSAS PUBLIC DEFENDER COMMS’N, \nEMPLOYER                                                                                                         RESPONDENT  \n \nSTATE OF ARKANSAS/ \nPUBLIC EMPLOYEE CLAIMS DIVISION \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \n \nOPINION AND ORDER FILED JULY 26, 2023 \nHOLDING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE IN \nABEYANCE FOR 30 DAYS \n \nHearing  conducted  on  Tuesday,  July  25,  2023,  before  the  Arkansas  Workers’  Compensation \nCommission (the Commission), Administrative Law Judge  (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe  claimant,  Ms.  Karel  Ortega,  pro  se,  of  Maumelle,  Pulaski  County,  Arkansas,  appeared  in \nperson at the hearing.  \n \nThe respondents were represented by the Honorable Charles McLemore, Public Employee Claims \nDivision, Little Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A  hearing  was  conducted  on  Tuesday,  July  25,  2023,  to  determine  whether  this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2023 \nLexis  Replacement)  and  Commission  Rule  099.13  (2023  Lexis  Repl.).  The  respondents  filed  a \nmotion  to  dismiss  with  the  Commission  on  May  4,  2023,  requesting  this  claim  be  dismissed \nwithout prejudice for lack of prosecution.  \n\nKarel Ortega, AWCC No. H105783  \n \n2 \n \n           In accordance with applicable Arkansas law, the claimant was mailed due and proper legal \nnotice of both the respondents’ motion to dismiss as well as a copy of the hearing notice at her \ncurrent addresses of record via the United States Postal Service (USPS), First Class Certified Mail,  \nReturn  Receipt  Requested,  which  she  received  on  May  8,  2023.  (Commission  Exhibit  1).  The \nclaimant appeared at the hearing pro se.  \n          The  claimant  filed  a  Form  AR-C  on  August  2,  2021,  alleging  she  had  sustained  a  work-\nrelated lower back injury on April 22, 2021. The respondents controverted the claim in its entirety, \nso  they  have  paid  no  medical  or  indemnity  benefits.  The  claimant  had  been  represented  in  this \nmatter by attorney Gregory R. Giles; however, by a letter he filed with the Commission on January \n3, 2023, Mr.  Giles made a motion requesting to  be relieved as the claimant’s counsel. The Full \nCommission granted Attorney Giles’s letter motion by order filed January 18, 2023.  \n          In  response  to  the  respondents’  motion  to  dismiss  this  claim  for  lack  of  prosecution  the \nclaimant testified she had not requested a hearing since the Full Commission relieved Mr. Giles as \nher attorney because she had  been occupied taking care of her mother, who is ill. The claimant \napparently continued to work following her alleged April 22, 2021, lower back injury. She testified \nshe quit her job earlier this summer in order to take care of her mother. The claimant testified she \nbelieved the last time she had received any treatment for her alleged April 22, 2021, work-related \ninjury  was  some  time  in  the  winter  of  2022,  when  she  received  an  injection.  It  was  her \nunderstanding she could not receive any further injections. She testified she had been paying for \nher  medical  treatment  for  her  alleged  April  22,  2021,  lower  back  injury  through  her  health \ninsurance, but she had incurred co-pays and other related expenses and paid those out of her own \npocket. \n\nKarel Ortega, AWCC No. H105783  \n \n3 \n \n The record herein consists of the hearing transcript as well as any and all exhibits contained \ntherein  and  attached  thereto  and,  as  always, the  Commission’s  entire  file  in  this  matter  by \nreference. \n \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively demonstrates the claimant has \nneither requested a hearing nor has he taken any action to pursue claim as of the hearing date. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, and as I advised the parties on the record at the hearing, I hereby make \nthe following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. The ALJ will hold in abeyance a decision on the respondents’ subject motion to \n                  dismiss without prejudice for a period of 30 days, or until Thursday, August 24, \n                  2023, in order to give the claimant time to find an attorney to represent her, or to \n                  decide whether she intends to proceed with this matter pro se (representing herself), \n                  and to request a hearing on the compensability of her claim. \n \n     3.         If the claimant fails and/or refuses to take the actions set forth in Paragraph 2 above, \n                and does not request, in writing, a hearing before the Commission on or before \n                Thursday, August 24, 2023, the respondents’ motion to dismiss without prejudice \n                for lack of prosecution filed May 4, 2023, will be granted, without the necessity of \n                either the respondents filing another motion, and without the necessity of the \n                Commission holding another hearing on the subject motion. \n \n        If they have not already done so, the respondents shall pay the court reporter’s invoice within \n\nKarel Ortega, AWCC No. H105783  \n \n4 \n \n \n twenty (20) days of the filing of this opinion and order. \n \n     IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Mike Pickens \n                                                                                               Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":6650,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H105783 KAREL ORTEGA, EMPLOYEE CLAIMANT ARKANSAS PUBLIC DEFENDER COMMS’N, EMPLOYER RESPONDENT STATE OF ARKANSAS/ PUBLIC EMPLOYEE CLAIMS DIVISION INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED JULY 26, 2023 HOLDING RESPONDENTS’ MOTION TO DISMISS WI...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:05:43.860Z"},{"id":"alj-H104220-2023-07-25","awccNumber":"H104220","decisionDate":"2023-07-25","decisionYear":2023,"opinionType":"alj","claimantName":"Claudia Baldridge","employerName":"Spring River Lp Gas, Inc","title":"BALDRIDGE VS. SPRING RIVER LP GAS, INC. AWCC# H104220 JULY 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Baldridge_Claudia_H104220_20230725.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Baldridge_Claudia_H104220_20230725.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H104220 \n \n \nCLAUDIA BALDRIDGE, EMPLOYEE CLAIMANT \n \nSPRING RIVER LP GAS, INC., \n EMPLOYER RESPONDENT \n \nWELLFLEET NY INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JULY 25, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  July  21, \n2023, in Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  July  21,  2023,  in \nJonesboro,  Arkansas.    Claimant,  who  is pro  se,  failed  to  appear.  Respondents \nwere  represented  at  the hearing  by  Mr.  Randy  P.  Murphy,  Attorney  at  Law,  of \nLittle  Rock,  Arkansas.    The  record  consists  of the  Commission’s  file,  which—\nwithout objection—has been incorporated herein in its entirety by reference. \n The evidence reflects that  per the First Report of Injury or Illness filed on \nMay 14, 2021, Claimant purportedly injured her right knee at work on December \n24, 2020, while getting out of her office chair.  According to the  Form AR-2 that \nwas  filed  on  May  17,  2021,  Respondents  accepted  the  injury  as  compensable \n\nBALDRIDGE – H104220 \n \n2 \nand  paid  medical  and  indemnity  benefits  pursuant  thereto.  Claimant’s  then-\ncounsel,  Laura  Beth  York,  entered  her  appearance  before  the  Commission  on \nthe   matter   on   July   28,   2021,   and   requested   a   hearing   on   the   matter.  \nAccompanying  this  correspondence  was  a  prehearing  questionnaire  response.  \nThe file was assigned to me on July 29, 2021; and that same day, my office sent \na prehearing questionnaire to Respondents.  Through  their counsel, they filed a \ntimely response thereto on August 23, 2021. \n A  prehearing  telephone  conference  was  scheduled  for  September  21, \n2021.    At  that  conference,  the  parties  agreed  to  another  one  that was  set  for \nOctober  18,  2021.    Thereafter,  on  September  23,  2021,  Claimant  filed  a  Form \nAR-C, asking for initial and additional benefits.  Claimant alleged therein that she \ninjured  not  only  her  right  knee,  but  also  her “other  whole  body.”  Following  the \nsecond   prehearing   telephone   conference,   a   hearing   was   scheduled   for \nNovember 19, 2021, on the following issues: \n1. Whether Claimant is entitled to additional medical treatment. \n2.  Whether Claimant is entitled to temporary total disability benefits. \n3. Whether Claimant is entitled to a controverted attorney’s fee. \nClaimant filed a copy of their medical exhibit with the Commission on November \n8,  2021.    That  same  day,  however,  the  parties  agreed  to  a  continuance  of  the \nhearing  to  December  17,  2021.    On  December  15,  2021,  York  advised  the \nCommission  by  email  that  because “Respondents  have  agreed  to  pay  for  the \nrecommended  surgery,”  she  was  withdrawing  her  client’s  hearing  request.  \n\nBALDRIDGE – H104220 \n \n3 \nBased  on  this,  the  hearing  was  cancelled,  and  the  file  was  returned  to  the \nCommission’s general  files on  December  15,  2021.  Even  though  the first  Form \nAR-C  was  never  dismissed,  Claimant’s  counsel  filed  it  again  on  November  28, \n2022.  A handwritten notation at the top of the form indicated that this action was \nbeing taken for “[s]tatute [p]urposes.” \n The  record  reflects  that  no  further  activity  occurred  in  this  matter  until \nFebruary  28,  2023.    On that  date,  Respondents  filed  the  instant  Motion  to \nDismiss.    Therein,  they  argued  that  dismissal  was  warranted  under  AWCC  R. \n099.13 and Ark. Code Ann. § 11-9-702 (Repl. 2012) because of Claimant’s “lack \nof prosecution” of this claim.  On March 27, 2023, I sent a letter to Claimant and \nher  counsel,  requesting  a  response  to  the  motion  within  20  days.    The  letter  to \nClaimant  was  sent  by  both  first-class  and  certified  mail  to  the  address  for  her \nlisted in her Forms AR-C.  She signed for the certified letter on April 5, 2023; and \nthe first-class letter was not returned.  No response to the Motion to Dismiss was \nforthcoming from either Claimant or her attorney, however. \n In  the  meantime,  on  April  20,  2023,  York  filed  a  motion  to  withdraw  from \nthe  case.    This  motion  was  inadvertently  assigned  to  the  Full  Commission \ninstead of the undersigned; and on May 2, 2023, the Full Commission granted it \nunder AWCC Advisory 2003-2. \n On  May  9,  2023,  a  hearing  on  the  Motion  to  Dismiss  was  scheduled  for \nJuly 21, 2023, at 10:30 a.m. at the Craighead County Courthouse in Jonesboro.  \nThe notice  was  sent  to  Claimant  by  first-class  and  certified  mail  at  the  address \n\nBALDRIDGE – H104220 \n \n4 \nlisted  on  her Forms  AR-C.    The  certified  letter  was  claimed  by  her on May  23, \n2021;   and   the   first-class   letter   was   not   returned.  The   evidence   thus \npreponderates that Claimant received notice of the hearing. \n The hearing on the Motion to Dismiss proceeded as scheduled on July 21, \n2023.    Again,  Claimant  failed  to  appear.    But  Respondents  appeared  through \ncounsel  and  argued  for  dismissal  of  the  action  under  the  aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  I  hereby  make  the  following \nFindings  of  Fact  and  Conclusions  of  Law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2.  The parties  were  provided  reasonable  notice  of  the  motion  to \ndismiss and of the hearing thereon. \n3.  The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4.  The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \n\nBALDRIDGE – H104220 \n \n5 \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  (Emphasis added)  Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), \nRespondents  must  prove  by  a  preponderance  of  the  evidence  that  dismissal \nshould  be  granted.    The  standard  “preponderance  of  the evidence”  means  the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  motion  to  dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because she has taken no further action \nin pursuit of it (including appearing at the July 21, 2023, hearing to argue against \nits dismissal) since the re-filing of her Form AR-C on November 28, 2022.  Thus, \nthe evidence preponderates that dismissal is warranted under Rule 099.13.  The \nMotion to Dismiss is hereby granted.  Because of this finding, the application of \nArk. Code Ann. § 11-9-702 (Repl. 2012) is moot and will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \n\nBALDRIDGE – H104220 \n \n6 \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer  Co.,  2005  AR Wrk.  Comp. \nLEXIS 510,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”    (Emphasis  added)(citing Professional  Adjustment  Bureau  v.  Strong, \n75  Ark.  249,  629  S.W.2d  284  (1982)).    Respondents  at  the hearing  asked  for  a \ndismissal without prejudice.  But based on the above authorities, I agree and find \nthat  the  dismissal  of  the  claim  should  be  and  hereby  is  entered without \nprejudice.\n1\n \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim\n2\n is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame  cause  of  action.”    BLACK’S  L  AW  DICTIONARY  825  (abridged  5\nth\n  ed. \n1983). \n \n \n2\nThe  term “claim” encompasses  both  active,  identical,  Forms  AR-C,  filed \non September  23,  2021,  and  on  November  28,  2022.  With  this  dismissal,  no \nactive Forms AR-C remain.","textLength":9342,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H104220 CLAUDIA BALDRIDGE, EMPLOYEE CLAIMANT SPRING RIVER LP GAS, INC., EMPLOYER RESPONDENT WELLFLEET NY INS. CO., CARRIER RESPONDENT OPINION FILED JULY 25, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 21, 2023, in Jonesboro, C...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:05:39.630Z"},{"id":"alj-H202136-2023-07-25","awccNumber":"H202136","decisionDate":"2023-07-25","decisionYear":2023,"opinionType":"alj","claimantName":"Tina Smith","employerName":"Riverview Behavioral Health, LLC","title":"SMITH VS. RIVERVIEW BEHAVIORAL HEALTH, LLC AWCC# H202136 JULY 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SMITH_TINA_H202136_20230725.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SMITH_TINA_H202136_20230725.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H202136 \n \n \nTINA SMITH, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nRIVERVIEW BEHAVIORAL HEALTH, LLC,   \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nSAFETY NATIONAL CASUALTY COMPANY,  \nINSURANCE CARRIER                                                                                        RESPONDENT \n  \nGALLAGHER BASSETT SERVICES, INC., \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT  \n                       \n \nOPINION FILED JULY 25, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Texarkana, Miller County, \nArkansas. \n \nClaimant, pro se, failed to appear at the hearing.  \n \nRespondents represented by the Honorable Eric Newkirk, Attorney at Law, Little Rock, Arkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on July 14, 2023 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode  Ann.  §11-9-702  (Repl.  2012),  and Arkansas  Workers’ Compensation  Commission  Rule \n099.13.  \nAppropriate Notice of this hearing was attempted on all parties to their last known address, \nin the manner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the July  14,  2023,  hearing  and  the  documents \ncontained therein. Specifically, the Respondents’ Hearing Exhibit consisting of seventeen pages \n\nSmith – H 202136 \n \n2 \n \nwas marked as Respondents’ Exhibit 1.    Additionally, the entire Commission’s file has been made \na part of the record.  It is hereby incorporated herein by reference.   \n                                                                  Discussion \n On  March  14,  2022,  the Claimant’s  attorney  filed  with  the  Commission  a  claim  for \nArkansas workers’ compensation benefits by way of a Form AR-C.  The Claimant alleged that she \nsustained an injury to her back on November 3, 2021, while performing employment duties for the \nrespondent-employer.    The Claimant’s  attorney  requested  both  initial  and  additional workers’ \ncompensation  benefits.    In  fact,  he  checked  all  the  boxes  for  every  conceivable  benefit  in \nconnection with this claim. \n The Claimant’s attorney requested a hearing per correspondence filed with the Commission \non April 26, 2022. \n Therefore,  on  April  29,  2022,  the  Commission  began  the  prehearing  process  by  mailing \nPrehearing Questionnaires and Notices to the parties.  On June 1, 2022, the Commission set this \nclaim for a prehearing telephone conference, which was scheduled to be conducted on June 28, \n2022.  The Claimant’s deposition was taken on June 16, 2022.  However, on June 28, 2022, the \nparties jointly asked that the matter be removed from the docket because they needed additional \ntime  to  complete  discovery.    As  a  result,  on  that  same  date,  the  Commission  cancelled  the \nprehearing telephone conference, and the claim was returned to the Commission’s general files.       \n  The  Claimant’s  attorney filed  with  the  Commission  a  Motion  to  Withdraw  from \nrepresenting  the  Claimant  in  this  matter  on  August  11,  2022.   The  Full  Commission  entered  an \norder granting the Claimant’s attorney motion to withdraw from representing her in this matter on \nAugust 26, 2022.   \n\nSmith – H 202136 \n \n3 \n \n Since this time, the Claimant has remained pro se.  Moreover, there has been no bona fide \naction on the part of the Claimant to prosecute her claim for workers’ compensation benefits, or \notherwise pursue a resolution to this matter.   \nAs a result, on March 22, 2023, the Respondents filed with the Commission a Respondents’ \nMotion  to  Dismiss  for  a  lack  of  prosecution.    The  Respondents  notified  the  Claimant  of  their \nmotion for dismissal by way of depositing a copy thereof in the United States Mail.  \nThe Commission mailed a letter-notice to the Claimant to her last known address with the \nCommission on March 22, 2023.  Said letter was sent by first-class mail and certified mail.  Per \nthis  correspondence,  the  Claimant  was  given  a  deadline  of  twenty  days,  for  filing  a  written \nresponse to the Respondents’ motion. \nYet, there has been no response from the Claimant.   \nHowever, the United States Postal Service informed the Commission on March 27, 2023, \nthat they delivered this item to the Claimant’s residence and left it with an individual.  The return \nreceipt bears the Claimant’s printed name and signature.  \nTherefore, pursuant to a Hearing Notice dated June 12, 2023, the Commission notified the \nparties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim due \nto  a  lack  of  prosecution.    The  notice  was  sent  to  the  Claimant  via  certified  and  first-class  mail.  \nSaid hearing was scheduled for July 14, 2023, at 2:00 p.m., at the Miller County Juvenile Justice \nCenter in Texarkana, Arkansas. \nThe  hearing  notice  sent  to  the  Claimant  via  certified  mailed  was  returned  to  the \nCommission marked “Return to sender.  Unclaimed.”  However, the notice sent by first class mail \nhas not been returned to the Commission.  \nStill, there has been no response from the Claimant.  \n\nSmith – H 202136 \n \n4 \n \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Claimant failed to appear at the dismissal hearing.  However, the Respondents \nappeared through their attorney.   \nCounsel  noted  that  the  Claimant  has  failed  to  timely  prosecute  her claim  for  workers’ \ncompensation  benefits.    Counsel  further  noted  that  there  has  been  no  attempt  on  the  part  of  the \nClaimant  to  move  forward  with  a  hearing  since  the  taking  of  her  deposition  on  June  16,  2022.  \nCounsel indicated, among other things, that at the time of her deposition, the Claimant essentially \nstated  that  she  did  not  wish  to  pursue  her  claim.    Therefore,  counsel  moved  that  this  claim  be \ndismissed under Ark. Code Ann. §11-9-702, and Arkansas Workers’ Compensation Commission \nRule 099.13, without prejudice due to all the afore reasons. \nThe record before me proves that the Claimant has failed to timely prosecute her claim for \nworkers’ compensation benefits.  The Claimant has not requested a hearing since her attorney was \nallowed to withdraw from representing her almost a year ago.  She failed to appear at the hearing \nto object to her claim being dismissed and she has not responded to the notices of this Commission. \nUnder  these  circumstances,  I  am  compelled  to  find  that  the  evidence  preponderates  that  the \nClaimant has abandoned her claim.  Therefore, per Ark. Code Ann. §11-9-702 and Rule 099.13 of \nthis  Commission,  I  find  that  this  claim  should  be  and  is  hereby  respectfully  dismissed,  without \nprejudice to the refiling of it with the limitation period specified by law.   \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n\nSmith – H 202136 \n \n5 \n \n2. The Respondents filed with the Commission, a motion for dismissal of this \nclaim, for which a hearing was held. \n \n3. The Claimant has not requested a hearing since her attorney was allowed to \nwithdraw from representing her in this matter, which was almost a year ago. \nHence, the evidence preponderates that the Claimant failed to prosecute her \nclaim for workers’ compensation benefits.      \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss this claim for a lack of prosecution is \nhereby granted, without prejudice, pursuant to Arkansas Code Ann. §11-9-\n702, and Commission Rule 099.13, to the refiling of it within the limitation \nperiod specified by law.  \n \nORDER \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis  hereby  dismissed  pursuant   to  Arkansas  Code  Ann.  11-9-702,  and  Arkansas Workers’ \nCompensation  Commission  Rule  099.13, without  prejudice,  to  the  refiling  of it,  within  the \nlimitation period specified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":9096,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H202136 TINA SMITH, EMPLOYEE CLAIMANT RIVERVIEW BEHAVIORAL HEALTH, LLC, EMPLOYER RESPONDENT SAFETY NATIONAL CASUALTY COMPANY, INSURANCE CARRIER RESPONDENT GALLAGHER BASSETT SERVICES, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JULY 25, 2023 He...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:05:41.789Z"},{"id":"alj-H204489-2023-07-24","awccNumber":"H204489","decisionDate":"2023-07-24","decisionYear":2023,"opinionType":"alj","claimantName":"Bang-Oen Pryor","employerName":"Bismarck School District","title":"PRYOR VS. BISMARCK SCHOOL DISTRICT AWCC# H204489 & H204490 JULY 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PRYOR_BANG-OEN_H204489_H204490_20230724.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PRYOR_BANG-OEN_H204489_H204490_20230724.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NOS.: H204489 & H2044490 \n \n \nBANG-OEN PRYOR,  \nEMPLOYEE                                                                                                                 CLAIMANT \n \nBISMARCK SCHOOL DISTRICT,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nARKANSAS SCHOOL BOARDS ASSN. WCT,  \nINSURANCE CARRIER                                                                                        RESPONDENT                           \n          \nARKANSAS SCHOOL BOARDS ASSN.,                                                                                                                                  \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED JULY 24, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant is pro se in AWCC No.  H204489, failed to appear for the hearing.  \n \nClaimant represented in AWCC No. H204490 by the Honorable Daniel A. Webb, Attorney at Law, \nLittle Rock, Arkansas.  Mr. Webb waived his appearance at the hearing. \n     \nRespondents  represented  by  the  Honorable  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on July 12, 2023 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced claims should be dismissed for failure to prosecute under the provisions of Ark. \nCode  Ann.  §11-9-702  (Repl.  2012),  and Arkansas Workers’ Compensation  Commission  Rule \n099.13.  \nAppropriate Notice of this hearing was attempted on all parties to their last known address, \nin the manner prescribed by law.   \n\nPryor – H204489 & H204490 \n \n2 \n \nThe  record  consists  of  the  transcript  of  the July  12,  2023,  hearing  and  the  documents \ncontained therein.  Also, both Commission’s files have been made a part of the record.  It is hereby \nincorporated  herein  by  reference.    Respondents’ Exhibit  1  includes a  Respondents’  Hearing \nExhibit Index consisting of five numbered pages, excluding the cover letter.  The Respondents’ \nHearing Exhibit Index, excluding the cover page consists of nine numbered pages has been marked \nas Respondents’ Exhibit 2.  \n                                                                   Discussion \n It appears that the Claimant alleged a workplace injury to her wrist on or about October 1, \n2021, which she did not promptly report to her employer.  The Claimant did not file a Form AR-\nC or any document with the Commission that would be sufficient for establishing the filing of a \nclaim.  The claim number for this alleged injury is H204489.  The Claimant is unrepresented in \nthis claim.   \n Subsequently, the respondent-employer filed a Form AR-2 with the Commission on June \n22, 2022 controverting the claim on the grounds: “DENIED – did not occur within course/scope \nof employment.”   \n Since this time, there has been no action taken by the Claimant to pursue her first alleged \nclaim (H204489) for an injury to her wrist.  \nOn May 5, 2023, the Claimant’s attorney filed with the Commission a claim for Arkansas \nworkers’ compensation benefits  by  way  of  a  Form  AR-C.  The  claim  number  for  this  claim  is \nH204490.    Specifically, the Claimant alleged that she sustained injuries to her neck on April 27, \n2022.  The Claimant requested initial workers’ compensation benefits in the form of temporary \ntotal  disability,  medical  expenses to include mileage, and attorney’s fees.  In  addition  to  these \n\nPryor – H204489 & H204490 \n \n3 \n \nbenefits,  the  Claimant  requested  additional  benefits  only  in  the  form  of  additional  permanent \npartial disability benefits.   \nThe  respondent-insurance-carrier  filed  a  Form  AR-2  with  the  Commission  on  June  22, \n2022,  wherein  they  denied  compensability  on  the  grounds of  “...  did  not  occur  within  the \ncourse/scope of her employment.”   \n  Since this time and the filing of the Form AR-C, there has been no bona fide action on the \npart of the Claimant to prosecute this claim, or otherwise pursue this matter.  \nOn May 5, 2023, the Respondents filed with the Commission a motion requesting that these \nclaims be dismissed for a lack of prosecution.  The Respondents notified the Claimant’s attorney \nof their motion for dismissal by way of mailing a copy of to him.  \nThe  Commission  sent  a  letter-notice to the Claimant’s attorney and the Claimant’s last \nknown address on May 10, 2023.  Per this correspondence, the Claimant was given a deadline of \ntwenty days, for filing a written response to the Respondents’ motion.  \nInformation received by the Commission from the United States Postal Service shows that \nthey delivered this parcel of mail to the Claimant’s home.  It bears the Claimant’s signature.  \n Yet, there has been no response from the Claimant. \n However, the Claimant’s attorney contacted the Commission stating that he waived his \nappearance  at  the  hearing in the claim relating to the Claimant’s neck, which is AWCC No. \nH204489.  Counsel also stated that he does not object to the claim being dismissed regarding the \nClaimant’s alleged cervical spine injury.  However, counsel specifically clarified that he does not \nrepresent the Claimant in the other claim.   \nConsequently, pursuant to a Hearing Notice dated June 2, 2023, the Commission notified \nthe parties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim \n\nPryor – H204489 & H204490 \n \n4 \n \ndue to a lack of prosecution.  Said hearing was scheduled for July 12, 2023, at 9:30 a.m., at the \nArkansas Workers’ Compensation Commission, in Little Rock, Arkansas. \n However, on July 11, 2023, the United States Postal Service informed the Commission that \nthey were unable to find any delivery information on the above item for the Claimant.  \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas  scheduled.    The  Claimant  failed  to  appear  at  the  hearing.    Nevertheless,  the  Respondents \nappeared through their attorney.  Counsel noted that the Claimant has failed to promptly prosecute \nher claim for workers’ compensation benefits.  Counsel further noted that there has been no attempt \non  the  part  of  the  Claimant  to  move  forward  with  a  hearing.    Explicitly,  counsel  for  the \nRespondents  noted  that  the  Claimant  did  not  respond  in a  timely  fashion  during  the  prehearing \nprocess and her discovery requests.  Therefore, counsel moved that both claims be dismissed under \nthe provisions of Ark. Code Ann. §11-9-702, and Arkansas Workers’ Compensation Commission \nRule 099.13 without prejudice. \nThe record before me proves that the Claimant has failed to timely prosecute her alleged \nclaims for workers’ compensation benefits.  The  Claimant  has  failed  to  respond  to  the  written \nnotices  of  this  Commission  and  has  not  objected  to  her  first  claim,  AWCC  H204489  being \ndismissed.  However, with respect to the afore claim, there is no claim to dismiss.  Regarding the \nClaimant ‘s second alleged  claim  (AWCC  No.  H204490)  for  a  neck  injury,  her  attorney  has \nindicated that he does not object this claim being dismissed, without prejudice.   Therefore, per \nRule 099.13 of this Commission, AWCC No. H204490 is hereby dismissed, without prejudice to \nthe  refiling  of  it  with  the  limitation  period  specified  by  law.    In  view  of  the  foregoing  finding, \nconsideration for dismissal of the within claim under the provisions of Ark. Code Ann. §11-9-702 \nhas been rendered moot. \n\nPryor – H204489 & H204490 \n \n5 \n \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The  Respondents  filed  with  the  Commission, a  motion  to  dismiss  these \nclaims for which a hearing was held. \n \n3. The evidence preponderates that there is no claim to dismiss with respect to \nthe  first  claim,  which  is  AWCC  No.  H204489.    However,  the  evidence \npreponderates that the Claimant has failed to timely prosecute her claim for \nworkers’ compensation benefits for an alleged neck injury, which is AWCC \nNo. H204490.   \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion  to  dismiss  is  hereby  granted  without  prejudice \npursuant  to  Commission  Rule  099.13,  to  the  refiling  of  it  within  the \nlimitation period specified by law for AWCC No. H204490.  \n \nORDER \n \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nfor an alleged neck injury (which is AWCC No. H204490) is hereby dismissed.  This dismissal is   \npursuant to Arkansas Workers’ Compensation Commission Rule 099.13, without prejudice to the  \nrefiling of it, within the limitation period specified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               Hon. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":9716,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NOS.: H204489 & H2044490 BANG-OEN PRYOR, EMPLOYEE CLAIMANT BISMARCK SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSN. WCT, INSURANCE CARRIER RESPONDENT ARKANSAS SCHOOL BOARDS ASSN., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JULY 24...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":["wrist","neck","cervical"],"fetchedAt":"2026-05-19T23:05:35.437Z"},{"id":"alj-H203233-2023-07-24","awccNumber":"H203233","decisionDate":"2023-07-24","decisionYear":2023,"opinionType":"alj","claimantName":"Deja Smith","employerName":"Polyethylene Containers, Inc","title":"SMITH VS. POLYETHYLENE CONTAINERS, INC. AWCC# H203233 JULY 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SMITH_DEJA_H203233_20230724.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SMITH_DEJA_H203233_20230724.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H203233 \n \n \nDEJA SMITH, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nPOLYETHYLENE CONTAINERS, INC.,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nFEDERATED MUTUAL INSURANCE COMPANY,  \nINSURANCE CARRIER/ THIRD PARTY ADMINISTRATOR                          RESPONDENT  \n \n \n \nOPINION FILED JULY 24, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant  represented  by  the  Honorable  Mark  Alan  Peoples,  Attorney  at  Law,  Little  Rock, \nArkansas.  Mr. Peoples waived his right to participate in the hearing.  \n \nRespondents  represented  by  the  Honorable  Rick  Behring,  Jr.,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on July 12, 2023 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (d) (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule \n099.13.  \nAppropriate Notice of this hearing was attempted on all parties to their last known address, \nin the manner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the July  12,  2023,  hearing  and  the  documents \ncontained therein.   Also, the entire Commission’s file has been made a part of the record.   It is \n\nSmith – H 203233 \n \n2 \n \nhereby incorporated herein by reference.  The Respondents’ Hearing Exhibit consisting of  thirteen \npages was marked as Respondents’ Exhibit 1.     \n                                                                 Discussion \n On August 2, 2022, the Claimant filed with the Commission a claim for Arkansas workers’ \ncompensation  benefits  by  way  of  a  Form  AR-C.    Specifically,  the  Claimant  alleged  that  she \nsustained injuries to her left hand on April 15, 2022 while performing employment duties for the \nrespondent-employer.  The Claimant requested additional workers’ compensation benefits in the \nform  of  temporary  total  disability,  temporary  partial  disability,  additional  permanent  partial \ndisability benefits, additional medical expenses, rehabilitation, and attorney’s fees.        \n  The  respondent-insurance-carrier  filed  a  Form  AR-2  with  the  Commission  on  May  9, \n2022, wherein they accepted compensability on the claim. \n Since the filing of the Form AR-C, there has been no bona fide action on the part of the \nClaimant  to  prosecute  her  claim for  workers’  compensation  benefits,  or  otherwise  pursue a \nresolution to this matter.  \nOn May  1,  2023,  the  Respondents  filed  with  the  Commission a  Motion  to  Dismiss  and \nIncorporated Brief in Support requesting that the claim be dismissed for a lack of prosecution.  The \nRespondents notified the Claimant’s attorney of their motion for dismissal by way of mailing a \ncopy of it to her attorney via the United States Postal Service.  \nThe Commission mailed a letter notice to the Claimant’s attorney and to her last known \naddress  on May  3,  2023.  Said  letter  was  sent  by  first  class  mail  and  certified  mail.  Per  this \ncorrespondence, the Claimant was given a deadline of twenty days, for filing a written response to \nthe Respondents’ motion.  However, the United States Postal Service informed the Commission \nthat they were unable to find any delivery information in their records for this item of mail.  \n\nSmith – H 203233 \n \n3 \n \nOf significance, on May 3, 2023, the Claimant’s attorney wrote the following in an e-mail \nto the Commission, “Claimant will not oppose dismissal, provided it is without prejudice.  I would \nask to be excused from appearance at any hearing on the Motion.”    \nTherefore, pursuant to a Hearing Notice dated June 6, 2023, the Commission notified the \nparties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim due \nto  a  lack  of  prosecution.    Said  hearing  was  scheduled  for July  12,  2023, at  10:30  a.m.,  at  the \nArkansas Workers’ Compensation Commission, in Little Rock, Arkansas. \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas scheduled.  The Respondents appeared through their attorney.   \nCounsel  noted  that  the  Claimant  has  failed  to  timely  prosecute  her claim  for  workers’ \ncompensation  benefits.    Counsel  further  noted  that  there  has  been  no  attempt  on  the  part  of  the \nClaimant to move forward with a hearing.  He also pointed out that the Claimant does not oppose \nthe  claim  being  dismissed  without  prejudice.    Therefore,  counsel  moved  that  this  claim  be \ndismissed under Ark. Code Ann. §11-9-702, and Arkansas Workers’ Compensation Commission \nRule 099.13, without prejudice. \nThe record before me proves that the Claimant has failed to timely prosecute her claim for \nworkers’ compensation benefits.  The Claimant has not requested a hearing since the filing of the \nForm AR-C in August 2022.     The Claimant does oppose to the  claim being dismissed without \nprejudice.  However, if the Claimant intends to pursue her claim at a later date, she has sufficient \ntime to refile it with the Commission before the statute of limitations has run on it.  Therefore, per \nArk. Code Ann. §11-9-702 and Rule 099.13 of this Commission, I find that this claim should be \nand  is  hereby  respectfully  dismissed,  without  prejudice  to  the  refiling  of  it  with  the  limitation \nperiod specified by law.   \n\nSmith – H 203233 \n \n4 \n \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission, a motion to dismiss this claim \nfor which a hearing was held. \n \n3. The evidence preponderates that the Claimant failed to timely prosecute her \nclaim for workers’ compensation benefits and does not oppose to it being \ndismissed  without  prejudice.  Hence,  the  Claimant  has  not  requested  a \nhearing since the filing of the Form AR-C, which was done almost a year \nago.     \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion to dismiss is hereby granted, without prejudice, \npursuant to Arkansas Code Ann. §11-9-702 and Commission Rule 099.13, \nto the refiling of it within the limitation period specified by law.  \n \nORDER \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis   hereby   dismissed   pursuant   to   Arkansas   Code   Ann.   11-9-702   and   Arkansas Workers’ \nCompensation  Commission  Rule  099.13, without  prejudice,  to  the  refiling  of it,  within  the \nlimitation period specified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":7624,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H203233 DEJA SMITH, EMPLOYEE CLAIMANT POLYETHYLENE CONTAINERS, INC., EMPLOYER RESPONDENT FEDERATED MUTUAL INSURANCE COMPANY, INSURANCE CARRIER/ THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JULY 24, 2023 Hearing held before Administrative Law Judge Ch...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:05:37.498Z"},{"id":"alj-H206962-2023-07-20","awccNumber":"H206962","decisionDate":"2023-07-20","decisionYear":2023,"opinionType":"alj","claimantName":"Jamesg Godwin","employerName":"Mid South Milling Company Inc","title":"GODWIN VS. MID SOUTH MILLING COMPANY INC. AWCC# H206962 & H206963 JULY 20, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GODWIN_JAMESG_H206962_H206963_20230720.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GODWIN_JAMESG_H206962_H206963_20230720.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H206962 & H206963 \n \nJAMES G. GODWIN, Employee                                                                               CLAIMANT \n \nMID SOUTH MILLING COMPANY INC., Employer                                      RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, Carrier                                              RESPONDENT \n \n \n OPINION FILED JULY 20, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 16, 2023, the above captioned claim came on for a hearing at Fort Smith, Arkansas.  \nA pre-hearing conference was conducted on  March 16, 2023, and a pre-hearing order was filed on \nthat same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n2.   The employee/employer/carrier relationship existed on August 5, 2022, regarding file  \n       number H206962 and September 2, 2022 regarding file number H206963. \n 3.  The respondents have controverted the claim in its entirety. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on August 5, 2022, and September  \n     2, 2022, regarding his right lower extremity. \n\nGodwin-H206962 & H206963 \n2 \n \n2.  Compensation rate.  \n3. If compensable, whether claimant is entitled to medical benefits and temporary total \ndisability benefits. \n4. Attorney’s fees. \nAll other issues are reserved by the parties. \nThe claimant contends that “He sustained a compensable lower extremity injury on August 5 , \n2022,  while  working  for  Midsouth  Milling  Company  in  Fort  Smith,  Arkansas.  Despite  objective \nevidence of injury, the respondents denied compensability of the claimant’s injury. The claimant \ncontends that he is owed medical benefits as well as temporary total disability benefits from September \n23,  2022,  through  a  date  yet  to  be  determined.  Due  to  the  controversion  of  entitled  benefits,  the \nrespondents are obliged to pay one half of the claimant’s attorney’s fee. Claimant reserves the right to \nraise additional contentions at the hearing of this matter.” \nThe respondents contend that “the claimant did not sustain a compensable injury on either \ndate. Claimant’s complaints are the result of a preexisting condition and/or condition which did NOT \noccur at work. As a result, the claimant is not entitled to any medical or indemnity benefits.”   \n From a review of the entire record, including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on March \n16, 2023, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.   Claimant has failed to prove by a preponderance of the evidence that he suffered a \n\nGodwin-H206962 & H206963 \n3 \n \n \ncompensable injury to his right Achilles tendon on August 5, 2022, or on September 2, 2022. \n \n FACTUAL BACKGROUND \n As reflected in the heading of this case, there are two separate claims for benefits that were \ndecided in this matter.  Since the proof in the two cases overlapped, the two claims were tried together.  \nHEARING TESTIMONY \n \n Claimant testified that he injured his lower right extremity on August 5, 2022, when a piece of \nequipment malfunctioned, and he hurried to address the problem as quickly as he could. He had only \ntaken a step or two when he felt something give, which claimant said he later found out was a partial \ntear in his Achilles tendon. Claimant stated that he fell down and remained on the floor for five to ten \nminutes, during which time he felt “something retract up to about mid-calf.” After getting up, claimant \nsaid he went to the office of the plant manager, Ben Smith, to tell him what happened and that he was \ngoing to the hospital. \n At the hospital, claimant said that he was seen in the ER and did not receive any treatment, \nonly an ultra-sound to confirm that there was a partial tear in his Achilles tendon. Claimant next saw \nhis primary care physician who then referred him to an orthopedic surgeon. Claimant said he wore a \nwalking boot on the advice of his primary care physician.  \n Claimant testified that he had a “reinjury, another partial tear” on September 2, 2022. On that \nday, claimant was changing a screen on the hammer mill and while doing so, felt the Achilles tendon \nsnap again. Once again, claimant said he reported the incident to Ben Smith. It was after the second \nincident that claimant saw Dr. Justin Clayton, an orthopedic doctor. Claimant was released from Dr. \nClayton  without  restrictions  on  December  8,  2022;  claimant  testified  that  this  release  was  at  his \nrequest.  As  of  the  date  of  the  hearing,  claimant  had  no  appointments  to  see  any  other  medical \nproviders for his right Achilles tendon injury and said that the tendon was slowly getting better. \n\nGodwin-H206962 & H206963 \n4 \n \n \n Claimant  was  terminated from  respondent  Mid  South  on  September  23,  2022.  He  believed \nthat it was because he asked for workmen’s compensation coverage. Claimant remained off work from \nSeptember 23, 2022, through December 8, 2022, during which time he was going to physical therapy \nbut was afraid to work full-time because he did not want to have a full tear in his Achilles tendon. \n On cross-examination, claimant said he had started working at Mid South Milling in February \nof  2019.  Claimant  worked  in  the  mixing  room  as  an  operator,  which  meant  he  would  formulate  a \nrecipe, which would then be entered into the computer, creating a mix of the chicken food. Claimant \nwas required to watch the operation process, but he was not physically pouring materials to make the \nmix. He was required to take care of the equipment and watch it during the mixing process. \n Claimant testified that if he was injured on the job, he was supposed to report it to Ben Smith. \nOn August 5, 2022, claimant conceded he alone determined that he was going to Mercy Hospital; he \ndid  not  ask  Mr.  Smith  where  he  should  go  for  treatment.  Claimant  did  not  ask  Mr.  Smith  to  file \nanything for him on that date, and in fact, it was not on his mind at that time that this was going to \nbe a work injury or claimed as a work injury. Claimant confirmed that he returned to work on the next \nscheduled workday and worked until September 2, 2022, when he had a similar injury. Once again, \nclaimant said he told Mr. Smith what had happened, but he was not sent for treatment, nor asked if \nhe  wanted  to  fill  out  any  forms.  Following  the  September  2,  2022  incident,  claimant  remained  off \nwork until he saw Dr. Clayton on September 7, 2022. He verified that before September 23, 2022, he \nhad not asked Mr. Smith to file a workers’ compensation claim for him. \n Respondent’s attorney asked about the record from Mercy Hospital on August 5, 2022. The \nfollowing exchange occurred: \nQuestion  (by  Mr.  Wade) On  this  day  it says, “this began to bother him six \nweeks ago.” That is Page One of Respondent’s Exhibit. So, the pain you are \ndescribing, “leg pain: patient complains of light posterior leg pain that begins \nat ankle region and extends at his posterior leg.” And then they say, “this \n\nGodwin-H206962 & H206963 \n5 \n \n \nbegan to bother him six weeks ago.” So, they are saying that the same pain \nyou are complaining of on August 5 had been going on for six weeks? \nAnswer (by claimant) I do not recall that. \n  \nQ.  Now  you  have  already  gone  to  your  doctor,  Dr.  Ellis,  with  the  same \ncomplaints, correct? \nA. Correct. \n \nQ.  OK,  because  on  page  24  of  the  same  record  the  August  5,  2022  Mercy \nHospital emergency room record, “patient states his right Achilles tendon \npain for approximately six weeks and has seen his primary care physician with \nthis.  Patient  was  initially  referred  for  an  MRI  to  evaluate  the  extent  of  his \ninjury, but it was denied by his insurance company, so he was scheduled to \nstart physical therapy this next week.” So, you had seen Dr. Ellis before \nAugust  5.  She  had  recommended  an  MRI  which  was  denied,  but  she  had \nalready scheduled you for physical therapy; correct?  \nA. She had not scheduled me for physical therapy until after the tendon tear. \n \nQ. Well this says she scheduled the therapy because you couldn’t have the \nMRI so is this wrong? \nA. The MRI was not scheduled until after the tear. She tried to refer me for \nit. \n \nQ. Sir, she tried to refer you for an MRI before August 5 of 2022, but because \nof the Achilles pain you were having six weeks before August 5, correct? \nA. This is not correct. \n \nQ. That is the way the record reads. That’s what someone told the emergency \nroom. \nA. I have never been referred for an MRI for anything before my tendon tear. \n \nQ.  Did  you  tear  your  tendon  before  August  5  of  2022,  because  you  are \ncomplaining that the same pain began in June? \nA. No, sir. \n \nQ. So you are saying this medical record is wrong? \nA. I am saying that the dates may be mixed-up.... \n \nQ.  This  is  August  5  of  2022.  So,  you  are  telling  us  today  that  all  of  this \nhappened: you saw your primary care physician, you had an MRI denied and \nyou have physical therapy scheduled all on that day? \nA. I told her I had pain in my foot prior, but I had not been referred for an \nMRI before the tendon tear. And my insurance did deny it. \n \nQ. Sir, that didn’t all happen on August 5. That happened before August 5 \nbecause you told them that. \n\nGodwin-H206962 & H206963 \n6 \n \n \nA. Then that is something I don’t recall. I suppose it did happen, then. \n(TR.31-34) \n  \n At that point, the court and counsel discussed how neither party had introduced any \nrecords from before August 5, 2022, to shed light on what the previous visit with Ms. Ellis\n1\n \nhad documented. The parties were given the opportunity to supplement the exhibits with \nthe earlier medical records, but claimant objected to doing so.  \n Respondent continued his cross-examination: \nQ. When you were in the emergency room on August 5, 2022, when it says \n“patient states his right Achilles pain had been going on for approximately six \nweeks” is that reporting what you told them? \nA. I don’t remember. \n \nQ. When it says, “he has seen his primary care physician for this.” That was \nalready  in  the  works  because  you  had  seen  Dr.  Ellis  or  APN  Ellis  not  on \nAugust 5, 2022, because you didn’t see her that day, correct? \nA. I didn’t start physical therapy until after the tendon. \n \nQ. I am not denying that. What it says it was already scheduled to start because \nDr. Ellis had scheduled it before August 5, 2022. Do you understand? August \n25 [sic] the only medical provider you saw was the hospital emergency room, \ncorrect? \nA. On August 5?  \n \nQ. OK? \nA. The next person I seen was my primary. \n \nQ. I understand that. \nA. Then she referred me to physical therapy.  \n \nQ. Well I understand that’s what your mind may tell you, but you had already \nbeen scheduled for physical therapy before that, correct? \nA. If that’s what’s she says, then it is true. \n \nQ. Listen to my question. August 5, the day you claimed you were injured, \nyou went to the emergency room, correct? \nA. Yes. \n \n \n1\n The parties referred to Stefanie Ellis, APN, as “Dr. Ellis” at times during the testimony. Any references to Dr. Ellis \nor Ms. Ellis are to the same person. \n\nGodwin-H206962 & H206963 \n7 \n \n \nQ. And that’s the only place you went that date? \nA. Yes. \n \nQ. And that day you told the emergency room personnel this has been going \non for six weeks, correct, based on this record? \nA. I suppose so. \n \nQ. You also told them you had seen Nurse Ellis or APN Ellis before August \nthe 5, 2022, correct? \nA. Yes. \n \nQ. You also told them you had been initially referred for any MRI that was \ndenied, correct? \nA. I suppose. I don’t recall. \n \nQ. You also told them you were scheduled to start physical therapy the next \nweek based on what Dr. Ellis did or APN Ellis, correct? \nA. I do not remember. \n \nThe Court: Mr. Wade, you can call her Dr. Ellis if you want to. I just wanted \nto make sure you are talking about the same person. \n \nQ.  (by  Mr.  Wade)  But  you  would  not  have  gotten  that  information  from \nanywhere else because you didn’t see Dr. Ellis that day, correct? \nA. (by claimant) Correct. \n \nQ. Ok. Now, when you did see Dr. Ellis, as the court has pointed out on page \n59, that was August 9 of 2022, so it would be four days later, correct? \nA. Sounds right. \n \nQ. And at that time she says, “James has come in today for his pain  in  his \nright  Achilles  regions  times  three months,” that you have been having this \npain in this area for three months. Do you know where she would have gotten \nthat if he did not get it from you? \nA. I don’t know. \n \nQ. And it goes on the say “patient was initially referred for an MRI, but it was \ndenied by his insurance company, so he was scheduled for physical therapy \nto start this week.” That’s the same thing the emergency room record says, \nisn’t it? \nA. I don’t know. I was not scheduled for physical therapy until after the tear. \n \nQ. I understand it didn’t take place until after the tear, but it was scheduled \nbeforehand based on these records, correct. \nA. I don’t know. That has been a while. (TR.38-41) \n \n\nGodwin-H206962 & H206963 \n8 \n \n \n On redirect, claimant was again read the portion of the August 5, 2022, record that mentions \nproblems in his leg from six weeks prior and was then read the subsequent line of the report “But \nsignificantly worsened. Patient fell after feeling something move and his leg give out.” Claimant \ntestified that he was not denying that he had leg pain prior to August 5, 2022. The redirect examination \nconcluded with claimant verifying that he told physical therapist Lane Carter on August 11, 2022: “54-\nyear-old male with complaints of right ankle pain and disfunction. Symptoms started in early June and \nhave worsened with more acute worsening episodes happening last Friday, August 5, 2022, when he \nshifted his weight and had increased pain and swelling.” \n After  claimant  rested,  Benjamin  Smith  was  called  as  a  witness  for  respondent.  He  is  the \noperations/plant manager at Mid South Milling in Fort Smith. After describing claimant’s job duties, \nMr. Smith verified that he was at work on both August 5 and September 2, 2022. Mr. Smith said on \nAugust 5, 2022, “He did not come to the office at all. He actually went to his vehicle, and I assume \nwent to get a doctor’s advice or whatever it was, but he basically tried calling and ended up sending a \ntext message to my assistant plant manager stating he had to leave.” At that time, claimant did not say \nwhy he had to leave or state that he was injured at work. Mr. Smith said claimant’s version of what \nhappened on August 5--claimant coming into Mr. Smith’s office and telling him what had happened, \nand that claimant was going to the emergency room – did not happen. Had claimant reported an injury \non the job, Mr. Smith said that he would have filled out a form and he personally would have taken \nclaimant to MedExpress.\n2\n \n Mr. Smith had noticed that claimant had issues walking: “He has always had issues walking, \n \n2\n  Claimant  objected  to  this  testimony  from  Mr.  Smith  on  the  grounds  that  lack  of  notice  was  not  raised  by  the \nrespondents.  I  allowed  this  testimony  for  the  purpose  of  assessing claimant’s credibility,  see Service  Chevrolet  v. \nAtwood, 61 Ark. App. 190, 966 S.W.2d 909 (1998) (Overruled on other grounds by Frances v. Gaylord Container \nCorp., 341 Ark. 527, 20 S.W.3d 280 (2000)) \n\nGodwin-H206962 & H206963 \n9 \n \n \nbut for a few months before that he was definitely hobbling around.” After again denying that there \nhad been a report on August 5, 2022, that claimant suffered an injury at work, Mr. Smith said that \nclaimant told him “he was having issues and went to a doctor.” Claimant returned to his job as an \noperator when he was next scheduled to work. \n Regarding the second event of September 2, 2022, Mr. Smith again denied that an injury was \nreported  to  him  on  that  date  and  repeated  what  his  course  of  action  would  have  been  had  such  a \nreport been made. On September 23, 2022, Mr. Smith said that was the first time that he had learned \nof any claimed work injury. The following then took place with Mr. Smith and respondent’s counsel: \nQ. (by Mr. Wade) Now what did you ask him at that point and time? \nA.  (by  Mr.  Smith) I stated, “Do you feel like this is work related?” And his \ncomment was “That doesn’t matter.” \n \nQ. Meaning what? \nA. I didn’t know. I basically stated to him. “Well, it does matter. If you feel it \nis work related, we have ways to deal with it.” He then walked away, and I had \nconversations with HR and stopped like that. \n \nQ. So you specifically inquired if it was work related and he didn’t really have \na response at that time? \nA. His response was “It didn’t matter.” \n \nQ. Ok. Now, did you have another conversation with him later on that same \ndate? \nA. I do not recall. \n \nQ. Ok. Now, at some point he was suspended, is that correct? \nA. That is correct. \n \nQ. And what was the purpose of that suspension? \nA. We felt he was wrongfully trying to claim workers’ comp on something that \nagain, he never previously stated was. \n \n On  cross-examination,  Mr.  Smith  said  claimant  was  not  terminated  for  filing a workers’ \ncompensation claim, but rather because he thought claimant was asking about filing a fictitious claim. \nWhen asked if claimant fell on August 5, 2022, Mr. Smith said he did not deny that happened, but he \n\nGodwin-H206962 & H206963 \n10 \n \n \nhonestly  did  not  know.  Mr.  Smith  did  not  keep  a  copy  of  the  text  message  that  was  sent  to  Steve \nStanart because it didn’t say that claimant had an injury but that he was going to the hospital. \n Claimant testified in rebuttal that he had a Cricket cellphone and did not send texts on it.  He \nspecifically denied that he had sent a text about his injury to anyone at his employer.  \n \nREVIEW OF THE EXHIBITS \n \n Dr. Seth Bartholomew made this entry in the Fort Smith Mercy Hospital Emergency Room \nnotes on August 5, 2022, at 1:52 P.M.: \n“Mr. Godwin is a 54-year-old man who presents to the emergency department today \nwith complaints of right heel and leg pain. Patient states his right Achilles tendon pain \nfor approximately 6 weeks and has seen his primary care physician for this. Patient \nwas initially referred for an MRI to evaluate the extent of his injury, but it was denied \nby  his  insurance  company,  so  he  was  scheduled  to  start  physical  therapy  this  next \nweek. Patient states at work today that he lunged forward quickly and bore all of his \nweight on the ball of right foot. Patient states he felt an instant pain extending from \nthe heel of his right foot up through the calf muscle and states he feels like something \nis ‘moving in there’.  Patient states the leg gave way causing him to fall.” (CL.X. 24) \n \nAn ultrasound test was conducted that same day at 5:01 P.M. with the following impression: \n \n“Intact but thickened and heterogeneous right Achilles tendon at real time imaging. \nThis   is   consistent   with   tendinopathy   and/or   partial   tear.   No   full-thickness \ntear.”  (CL.X 40) \n \nClaimant was discharged by APRN Paula Ballard at 6:30 P.M. with the following entry: \n“Wrap the affected foot for comfort. Consider  an  insole  to  absorb  shock.  Use \nNSAIDs for pain and swelling. Start with physical therapy as directed by your primary \ncare physician. Return to emergency department for further evaluation of any red flag \nor concerning symptoms.” (CL. X. 37) \n \n   On August 9, 2022, claimant saw APN Stefanie Ellis at Mercy Clinic Free Ferry.  Her \nentry copied much of what Dr. Bartholomew recorded on August 5, 2022:  \n \n“Subjective:   James  has  come  in  today  for  his  pain  in  the  rt  Achilles  region  x  ~  3 \nmonths. Patient was initially referred for an MRI to evaluate the extent of his injury, \nBut  it  was  denied  by  his  insurance  company,  so  he  was  scheduled  to  start  physical \n\nGodwin-H206962 & H206963 \n11 \n \n \ntherapy this week. Last week states while at work launched forward quickly and bore \nall of his weight on the ball of his right foot. States he felt an instant pain extending \nfrom the heel of his right foot up through the calf muscle and states he felt something \nwas “ moving in there.”  Patient states the leg gave way causing him to fall. Went to \nthe  ER,  u/s  completed  and  Achilles  tendinopathy  and  partial  tear ID’d.  Has \ncontinued with pain. The history is provided by the patient.”  \n \n This entry concludes with a referral to Orthopedic Surgery (R.Med. X. 59), but claimant began \na course of physical therapy on August 11, 2022, which continued until November 22, 2022.  Nothing \nin     those     notes is     critical     to     a     determination     of     the     issues     in     this     matter.  \n Claimant  was  seen  by  orthopedic  surgeon,  Justin  Clayton,  at  Mercy  Clinic  River  Valley  on \nSeptember 7, 2022.  Dr. Clayton reported as follows: \n“History: 54-year-old male who had an Achilles injury on the right about a month ago \nor a little bit more than that. He had another injury just about 5 days ago which seems \nto have completed a partially torn Achilles as best he can tell. In a walking boot... \n \nExam: 54-year-old overweight male in no distress who is alert and oriented. He has a \npalpable  defect  in  his  Achilles  and  some  tenderness  to  palpitation  in  that  location. \ncompression of his calf does not cause plantarflexion of the foot. Skin is intact. \n \nImaging:   I  reviewed  the  plain  radiographs  that  were  done  previously  [which]  are \nunremarkable. \n \nMedical  decision  making:  54-year-old  male  with  an  Achilles  tendon  rupture  on  the \nright.  I  discussed  with  him  how  this  would  best  be  treated  without  surgical \nintervention. It is important that he follows the non-surgical protocol which we have \ngiven him, and he can also give a copy to his physical therapist. We will place a heel \nlift into his boot today. He should not be on ladders and should have a 15 lb lifting \nrestriction. We will see him in 4 weeks for exam only no imaging.” (CL. X. 77) \n \n Claimant returned to see APN Ellis on October 4, 2022, but little about that visit related to \nhis Achilles’ tendon injury.  He completed his course of physical therapy and on December 7, 2022, \nreturned to Dr. Clayton.  His report of that date reads as follows: \n“HPI: Patient who has been treated non-surgically  for  an  Achilles  tendon \nrupture on the right. He has been a little more aggressive than we would like to \nhave seen, however he needs to be back at work and at this point is not having \na significant amount of pain nor is he having significant dysfunction.”  \n(CL. X. 128) \n\nGodwin-H206962 & H206963 \n12 \n \n \n \nDr. Clayton released claimant as of December 9, 2022, with no restrictions.  \nADJUDICATION \n \n In order to prove a compensable injury as the result of a specific incident that is identifiable \nby time and place of occurrence, a claimant must establish by a preponderance of the evidence (1) an \ninjury arising out of and in the course of employment; (2) the injury caused internal or external harm \nto  the  body  which  required  medical services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence. Odd Jobs and More v. Reid, 2011 Ark. App. 450, \n384 S.W. 3d 630. After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  failed  to  meet  his  burden  of  proving  by  a \npreponderance of the evidence that he suffered a compensable injury. \n Initially, I  do  not  find  claimant's  testimony  particularly  credible.  As  there  were  only  two \nwitnesses with diametrically opposed testimony on crucial issues, it is necessary to determine which \nwitness was the more credible.  In virtually every discrepancy between claimant’s testimony and that \nof  Mr.  Smith,  I  believed  Mr.  Smith;  most  significantly,  I  believe  what  Mr.  Smith  said  regarding \nclaimant’s failure to report a work-related injury on August 5, 2022. Claimant’s dispute with the entries \nin  the  emergency  room  records  about  when  the  MRI  was  denied  and  when  physical  therapy  was \nscheduled to begin also served to undermine his credibility on both of his claims.\n3\n \n  \n \n3\n Claimant’s failure to provide the medical records of the medical treatment for his right Achilles tendon during the \nprevious few  months  before  his  August  5,  2022,  visit  to  the  emergency room  was  puzzling.  Claimant was  evasive \nwhen questioned about when an MRI was turned down by his private insurance and when physical therapy was due \nto  commence;  if  his  version  of  the  events  leading  up  to  August  5,  2022,  was  accurate,  those  records  should  have \nsupported his contentions.   \n\nGodwin-H206962 & H206963 \n13 \n \n \nThe August 5, 2022, claim \n Before claimant left work on August 5, 2022, to go to the ER at Mercy Hospital, he had already \nbeen examined by his personal physician, and a course of physical therapy had been ordered for him.  \nThe provider that treated him  prior to August 5, 2022,  thought the problem was severe enough to \nwarrant an MRI, but according to claimant, his insurance denied coverage for that test.  At the ER on \nAugust 5, 2022, an ultrasound test was conducted with results that were “consistent with tendinopathy \nand/or partial tear. No full-thickness tear.”  Claimant was returned to his primary care physician and \nbegan the previously scheduled course of physical therapy.  There are no objective findings from the \nAugust 5, 2022, ER visit or from the follow-up with APN Ellis on August 8, 2022, that what was seen \non  the  ultrasound  at  the  ER  did  not  exist  prior  to  August  5,  2022.     Claimant’s planned  course  of \ntreatment  before  August  5,  2022,  was  to  begin  physical  therapy  the  following  week;  his  course  of \ntreatment after August 5, 2022, was the same.   As such, claimant lacks an objective finding that his \nwork  activity  on  August  5,  2022,  caused tendinopathy and/or a partial tear of his right Achilles’ \ntendon.   \nThe September 2, 2022, claim \n Claimant’s proof as to his second claim is even more scant than that of the August 5, 2022, \nclaim.   The only objective finding in the September 7, 2022, record from Dr. Clayton was “He has a \npalpable defect in his Achilles...”  The other entries are either a subjective finding of tenderness or \nwhat claimant related in the history: “He had another injury just about 5 days ago which seems to have \ncompleted  a  partially  torn  Achilles  as  best  he  can  tell  (emphasis  added).”  That  is  not  an  objective \nfinding by Dr. Clayton.  Dr. Clayton did not see the need for further imaging but noted that those \ndone previously were “unremarkable.”   The course of treatment was: “He should not be on ladders \nand should have a 15 lb. lifting restriction. We will see him in 4 weeks for exam only, no imaging.”  \n\nGodwin-H206962 & H206963 \n14 \n \n \nHowever, there is no evidence that claimant provided his employer with these restrictions.   \nConclusion \n In his post-hearing brief, claimant correctly stated that an employer takes an employee how \nhe  finds  him,  and  pre-existing  conditions  that  are  aggravated  by  work-related  activities  can  be \ncompensable injuries.  However, the credible evidence in this case does not support the contention \nthat claimant suffered tendinopathy and/or a partial tear of his right Achilles’ tendon as a result of \nwork-related  activities  on  either  August  5, 2022,  or  September  2,  2022.   Further, it was claimant’s \ntestimony  that  he  chose  not  to  work  from  September  23,  2022,  through  December  7,  2022;  the \nrestrictions placed on him by Dr. Clayton on September 7, 2022, did not prevent him from working \nfor the two weeks prior to his termination.   As such, I find claimant failed to prove his claim by a \npreponderance  of  the  evidence. It is therefore unnecessary for me to determine claimant’s average \nweekly wage for the purpose of temporary total disability payments. \n \nORDER \n \n Claimant has failed to meet his burden of proving by a preponderance of the evidence that he \nsuffered  a  compensable  injury  to  his  right  Achilles  tendon  on  August  5,  2022,  or  on  September  2, \n2022. Therefore, his claim for compensation benefits is hereby denied and dismissed. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \nhearing transcript. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":30000,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206962 & H206963 JAMES G. GODWIN, Employee CLAIMANT MID SOUTH MILLING COMPANY INC., Employer RESPONDENT TRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT OPINION FILED JULY 20, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebast...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["ankle","back"],"fetchedAt":"2026-05-19T23:05:33.366Z"},{"id":"alj-H207262-2023-07-19","awccNumber":"H207262","decisionDate":"2023-07-19","decisionYear":2023,"opinionType":"alj","claimantName":"Marilyn Compton","employerName":"St. Vincent Medical Center North","title":"COMPTON VS. ST. VINCENT MEDICAL CENTER NORTH AWCC# H207262 JULY 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//COMPTON_MARILYN_H207262_20230719.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COMPTON_MARILYN_H207262_20230719.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G907231 \nMARILYN COMPTON,  \nEMPLOYEE                                                                                              CLAIMANT \n \nST. VINCENT MEDICAL CENTER NORTH,  \nEMPLOYER                                                                                                         RESPONDENT \n            \nINDEMNITY INS. CO. OF NORTH AMERICA/                           \nSEDGWICK MANAGEMENT CLAIMS SERVICES, INC.,  \nINSURANCE CARRIER/TPA                                                                          RESPONDENT   \n \nOPINION AND ORDER OF DISMISSAL WITHOUT PREJUDICE \nFILED JULY 19, 2023 \nHearing before the Arkansas Workers’ Compensation Commission (AWCC), Administrative Law \nJudge (ALJ) Mike Pickens, on Tuesday, July 18, 2023, in Little Rock, Pulaski County, Arkansas. \nThe claimant was represented by the Honorable William C. “Bill” Frye, The Frye Law Firm, North \nLittle Rock, Pulaski County, Arkansas.  \nThe respondents were represented by the Honorable Jason Ryburn, The Ryburn Law Firm, Little \nRock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n  A  hearing  on  the  merits  of  the  above-captioned  claim  was  scheduled  in  this  matter  for \nTuesday, July 18, 2023, to determine whether the claimant had sustained a compensable “mental \ninjury” within the meaning of the Arkansas Workers’ Compensation Act (the Act). In conferring \nwith his client before the hearing, the claimant’s attorney determined he did not wish to proceed \nwith the scheduled hearing, and he made an oral motion on the record to voluntarily dismiss this \nclaim without prejudice. He also agreed to pay the court reporter’s invoice  associated  with  her \nappearance at and work related to the hearing. The respondents’ attorney objected to the claimant’s \nvoluntary motion to dismiss and stated his client would be prejudiced by the dismissal of this claim \nat this time. The respondents’ attorney further requested that, should the ALJ grant the claimant’s \n\nMarilyn Compton, AWCC No. G907231 \n \n2 \n \nmotion to dismiss, his client be awarded their attorney’s fees and costs incurred in preparing for \nand attending what was scheduled to be a full hearing on the merits of this claim.  \n           While the claimant’s attorney advised he did not wish to proceed to a hearing at this time \nand, therefore, requested this claim be dismissed without prejudice, he stated on the record that as \nof this time it was his and the claimant’s intention to file another Form AR-C with the Commission \nand to refile the claim at some point in the future if and when it was appropriate to do so. Therefore, \nagain, with his client’s full and informed consent the claimant’s attorney requested the ALJ grant \nthe claimant’s request to voluntarily dismiss her claim without prejudice at this time.   \n           The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter by reference. \nDISCUSSION \n While the subject July 18, 2023, hearing was scheduled to be a hearing on the merits of the \nclaim, the parties did make a record during which the claimant’s attorney made his motion to \ndismiss this claim without prejudice, and the respondents’ attorney stated his objection thereto, a \nhearing was held which is consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004). After a thorough consideration of the facts, issues, as well as the applicable \nlaw and other relevant matters of record, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2.         I find the claimant’s motion to dismiss without prejudice made on the record on \n                  on July 18, 2023, should be and hereby is GRANTED for good cause shown; \n                  and this claim is dismissed without prejudice to its refiling pursuant the deadlines \n                  prescribed by Ark. Code Ann. § 11-9-702(a) and (b) (2023 Lexis Replacement).  \n    \n \n\nMarilyn Compton, AWCC No. G907231 \n \n3 \n \n     3.         The respondents’ attorney’s request for attorney’s fees and costs incurred in \n                 preparation for and appearance at the hearing is denied, as I find the \n                 respondents have not been nor will they be prejudiced by the claimant’s voluntary \n                 dismissal of the subject claim. \n \n This opinion and order shall not be construed to  prohibit the claimant,  her attorney,  any \nattorney she may retain in the future, or anyone acting legally and on her behalf from refiling the \nclaim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n As agreed on the record at the hearing, the claimant’s attorney shall pay the court reporter’s \ninvoice within twenty (10) days of the filing of this opinion and order. \n           IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Mike Pickens \n                                                                                               Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5517,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G907231 MARILYN COMPTON, EMPLOYEE CLAIMANT ST. VINCENT MEDICAL CENTER NORTH, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ SEDGWICK MANAGEMENT CLAIMS SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER OF DISMISSAL WITHOUT PREJUDIC...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:05:27.136Z"},{"id":"alj-H204211-2023-07-19","awccNumber":"H204211","decisionDate":"2023-07-19","decisionYear":2023,"opinionType":"alj","claimantName":"Erwin Ezell","employerName":"H.W. Tucker Co. Inc","title":"EZELL VS. H.W. TUCKER Co. INC. AWCC# H204211 JULY 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/EZELL_ERWIN_H204211_20230719.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EZELL_ERWIN_H204211_20230719.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H204211 \n \nERWIN EZELL, EMPLOYEE        CLAIMANT \n \nH.W. TUCKER Co. INC., EMPLOYER           RESPONDENT \n \nNATIONAL TRUST INSURANCE Co., CARRIER         RESPONDENT \n \nFCCI INSURANCE GROUP, TPA           RESPONDENT \n \n \nOPINION FILED 19 JULY 2023 \n \n \nOn  hearing  before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, 8 February 2023, Little Rock, Pulaski County, Arkansas. \n \nMs. Laura Beth York, Attorney-at-Law of Little Rock, Arkansas, appeared for the claimant. \n \nMr. James  A.  Arnold,  II, Attorney-at-Law  of  Fort  Smith,  Arkansas, appeared for  the \nrespondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on 8 February 2023 in Little Rock, Arkansas, after \nthe parties  participated  in  a prehearing telephone  conference  on 22  November 2022.  A \nPrehearing Order, admitted to the record without objection as “Commission’s Exhibit No 1,” \nwas entered on that same day.  The Order stated the following ISSUES TO BE LITIGATED: \n1. Whether the claimant sustained a compensable injury to his back by specific incident \nor, in the alternative, by gradual onset. \n \n2.  Whether the claimant is entitled to reasonable and necessary medical treatment. \n3.  Whether the claimant is entitled to temporary total disability (TTD) benefits. \n4.  Whether the claimant is entitled to a controverted attorney’s fee. \nAll other issues were reserved. \nThe parties’ CONTENTIONS, as set forth in their pre-hearing questionnaire responses, \nwere incorporate by reference into the Prehearing Order. The CLAIMANT CONTENDS: \n\nEZELL- H204211  \n2 \n \n1. That he suffered a compensable back injury in the scope and course of employment \nand that he is entitled to medical benefits and TTD from 3 May 2022 to an unknown \ndate and that he is entitled to an attorney’s fee. \n \nThe RESPONDENTS CONTEND: \n1. That the claimant’s injuries do not meet the requirements for compensability under \nthe applicable law. \n \n2. That the  claimant  failed  to  notify  the  respondents  of  a  work-related  injury  that  he \nalleges occurred on 29 April 2022. \n \nThat Order also set forth the following STIPULATIONS: \n1. The AWCC has jurisdiction over this claim. \n2. An employee/employer/carrier relationship existed on 21 April 2022 and at all other \ntimes relevant to this claim. \n \n3.  The respondents have controverted this claim in its entirety. \n4.  The parties would further stipulate to average weekly wage and compensation rates. \nIn  addition  to the  Commission’s previously  mentioned Exhibit No 1,  three (3) more \nEXHIBITS were entered into the record.  “Claimant’s Exhibit No 1” consisted of a three-page \nindex of medical records and sixty-five (65) subsequent pages.  “Respondents’ Exhibit No 1” \nconsisted  of  one (1) index  page of  medical  records and eighty (80) subsequent  pages. \n“Respondents’ Exhibit No 2” consisted  of  one (1) index  page of  non-medical  records and \ntwenty-two (22) subsequent pages. \nThree  (3) WITNESSES provided sworn testimony—the claimant spoke on his own behalf \nand the respondents called Mr. Eric Jackson and Ms. Julie Sanders. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law under \nArk. Code Ann. § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n\nEZELL- H204211  \n3 \n \n2. The previously noted stipulations are accepted as fact. \n3. The claimant failed to prove, by a preponderance of evidence, that he suffered a work-\nrelated injury by either specific incident or gradual onset. \n \n4. Because he failed to prove a compensable injury, the claimant’s request for reasonable \nand necessary medical treatment and TTD benefits are moot and will not be addressed \nbelow. \n \n5. Consistent with the above, the claimant’s attorney is not entitled to a fee. \nIII.  HEARING TESTIMONY and MEDICAL EVIDENCE                                                                                                        \nA. Claimant on direct-examination by Ms. York: \nClaimant, Ervin  Ezell, is  a sixty-two (62) year  old male  with  a  high  school diploma \nand approximately a year and a half of college credit.  He has worked pouring concrete since \n1987,  and  his  testimony  evidences  knowledge  around  the  many  different  roles  or  tasks \nassociated with installing concrete surfaces.  His work with respondent, H.W. Tucker, began \non 6 December 2021. \n According to the testimony, he presented to the emergency department in March of \n2022 with complaints of back pain.  He attributed the pain to possible “fatigue” [TR at 15] \nand denied making any report to his employer before or after returning to work.  This was \nnot his first episode of back pain; rather, he noted that he experienced back pain “many times” \nbefore and that “it’s a strenuous job.” Id. \n Before  describing  any  events  in  April  of  2022  or  after,  the  claimant  discussed  an \naccident and injury sustained on another job in 2017, when he was struck by the extended \nconcrete chute of a mixing truck making a sudden turn.  He described being off from work for \nsome  time  while  seeking  treatment  for  the  injuries  sustained  in  that  incident.  Mr.  Ezell \nstated  that  he  eventually  returned  to  full-duty  work,  although  intermittent  back  pains \npersisted.  “That’s every day.  That’s every day.  That’s why they tell you to go home, soak in \nEpsom salt and, you know, get ready for the next day... a few times I have to take a few pain \n\nEZELL- H204211  \n4 \n \npills or whatever, you know, muscle relaxers or something, but...I got a job to do.  I’m fixing \nto go do it.” [TR at 19]  \n Mr. Ezell next described his work shoveling concrete on Friday, 29 April 2022, when \nhe  felt  his  back  pop.  When asked if anything was wrong, he stated “Nothing, I’m good. \nNothing.” [TR at 21]  He says that we worked on and took a muscle relaxer before finishing \nout the day.  Comparing at the hearing the pain he felt in April to the pain he felt in March, \nhe said it felt “sharp.” [TR at 24]  He reiterated that he denied an injury while at the jobsite \nand  when  asked  specifically  if  he  reported  to  his  supervisor  that  he  needed  medical \ntreatment, he said, “No, no. I never told him.” [TR at 25]  Mr. Ezell denied working any other \njobs or  reporting  any  injury to  his  employer over  the  weekend,  saying  that  he  rested  and \ncooked some meals with his family. Id. \n According to his testimony, Mr. Ezell arrived at work the following Monday, 2 May \n2022, “really limping.” [TR at 26]  Mr. Ezell testified that he mentioned hurting himself on \nthe Friday before, but that he was not offered any workers’ compensation paperwork at the \ntime.  He stated that Bubba, the foreman, told him to go home “and get yourself together.” \nMr. Ezell states he went to bed early that night, but woke up in pain and struggled to get out \nof bed the next morning, to the extent that he called his children to get him up and drive him \nto the hospital.  \n He disagreed with the employer’s work records that showed he claimed an injury on \n21 April. Reviewing the records, he was back-and-forth on whether he worked on the Monday \nfollowing the date he claims the injury occurred, before agreeing that he worked a full day on \nMonday,  2  May  2022.  [TR  at  32]  He  stated  again  that  he  did  not  report  an  injury  to  his \nemployer.  Mr. Ezell testified that he hurt all day that Monday and took muscle relaxers to \nease the pain.  He then disagreed with the work records showing that he worked full days on \nTuesday May 3\nrd\n and Wednesday May 4\nth\n, saying that he was sent home that Tuesday and \n\nEZELL- H204211  \n5 \n \nwent to the hospital that night. [TR at 34-35]  He disagreed again with records showing that \nhe worked the following Monday, 9 May 2022, and that he “sat in truck all day, ten hours.” \nHe further disagreed that he was told to stay home on 10 May 2022, reiterating that his last \nday to show up for work was 2 May 2022.  The claimant agreed that he eventually filled out \nsome  workers’ compensation forms, but was unsure of the dates they were received or \nreturned. [TR at 35-36] \n He claimed that he did not perform any work for the respondents between 3 May 2022 \nand his full-duty release on 31 October 2022.  Since his release he claims no problems with \nhis back. [TR at 38]  His direct-examination concluded with Mr. Ezell stating that the pain \nhe  claims  he  felt  on  29  April  2022  was  greater  than  any  past  back  pains.  Relating  to  his \ninjury from 2017, when he was hit by a concrete truck, he said, “[t]hat piece of steel hit me, \nknocked me up in the air, okay.  In no time I was back to work.  A couple of months I was \nback to work, but the pain in the—on the 29\nth\n, that was—that was a greater pain.  That was \na greater pain.” [TR at 39] \nB. Claimant on cross-examination by Mr. Arnold: \n The  claimant  confirmed  on  cross-examination  that  his work  at H.W. Tucker, which \nbegan on 6 December 2021, was not different in the approximate five (5) months he worked \nthere from his work pouring concrete for the previous thirty-five (35) years.  In the five (5) to \nsix (6) years prior to joining H.W. Tucker, Mr. Ezell worked for himself. [TR at 41-42]  He \nalso  confirmed  that  his  2017  injury was  handled  as  a  personal  injury  matter for which  he \nreceived  a  settlement  and  not  through  workers’  compensation.  Mr.  Ezell’s  back  pains \npersisted periodically after the 2017 accident and he took pain medication, muscle relaxers, \nand wore a back belt as needed for help with pain.  “So in order to keep on, you take a muscle \nrelaxer or a pain pill.” [TR at 44] \n\nEZELL- H204211  \n6 \n \n Mr. Ezell testified that despite other incidents or doctor’s visits prior to 29 April 2022, \nhe  was  not  having  any  back  pains  on  that  day,  or  at  least,  “no  more  than  usual.” \n[TR at 48-49]  The  muscle  relaxers  and  pain  pills  he  had  on-hand  the  Friday  he  claims \nhe was  injured  were  prescribed  by  providers  for  earlier-reported  pains.   The  claimant  \nre-asserted  that  he  went  to  the  Baptist  Emergency  Room  on  3  May  2022,  despite  neither \nparty  having  any  records  relating  to  such  a  visit.  As  for the absence  of  medical  records \nsupporting his version of the events, Mr. Ezell only offered, “I have no idea.” [TR at 51] \n The questioning went on as to what medical complaints and treatments were reported \nor provided and when. \nC.  Claimant on re-direct and re-cross: \nAnswering additional questions, Mr. Ezell reiterated that he experienced back pains \nprior to the alleged injury in April of 2022.  “I mean, with this job, everything hurts,” he said. \n[TR  at  59]  He  went  on  to  deny  recalling  earlier  sworn  statements  made  during  his \ndeposition.\n1\n [TR at 60-61] \nD.  Respondent employee, Eric Jackson:  \n The respondents called Mr. Eric Jackson to the stand, and he testified that he worked \nfor H.W. Tucker for approximately twenty (20) years, with about the last six (6) of those being \nin management.  Mr. Jackson recalled telling the claimant in May of 2022 to go home if he \nwas hurting, but denied that the claimant told him that his pain was related to a workplace \ninjury.  According  to  Mr.  Jackson,  the  conversation  occurred  on  the  Tuesday  after  the \n \n1\n Respondents’ counsel provided, and I accepted, the claimant’s deposition transcript as a proffer.  I \nam not relying on any of the sworn testimony found in that transcript in this Opinion.  Rather, I am \nlimiting my consideration to the testimony offered at the hearing.  That said, and the actual specifics \nof  the  deposition  testimony  aside,  I  do  not  discount respondent  counsel’s  use  of  the  deposition \ntestimony and the claimant’s denial of that testimony for impeachment purposes and/or attacking his \ncredibility. \n\nEZELL- H204211  \n7 \n \nclaimant spent the previous day sitting in the truck all day (which is reflected as the 9\nth\n and \n10\nth\n of May in “Respondents’ Exhibit No 2”). \n He further testified that employees are supposed to report workplace injuries to their \nsupervisors, but that he did not recall Mr. Ezell telling him that he was hurting because of \nan injury sustained at work.  Nor did he recall another employee telling him at the time that \nMr. Ezell had hurt himself while working. \n E.  Respondent employee, Julie Sanders:  \n Ms. Julie Sanders testified that she worked in administration, handling “payables, \nreceivables, a lot of HR.” [TR at 73]  She confirmed the accuracy of the work-related records \nprovided  by  the  respondents  and  admitted  into  evidence.  According  to  Ms.  Sanders,  the \nclaimant called her office on 24 May 2022, saying that he had being seeing a doctor and that \nhe might need surgery, so he “needed to get on workers’ comp.” [TR at 74]  She stated that \ncall was the first she heard about a workplace injury.  After some forms were provided to Mr. \nEzell,  another  worker  told  Ms. Sanders  that  he  remembered  the  claimant  mentioning  his \nback  hurting  at  some  point,  but  that  he  denied  that  it  was  anything  that  needed  to  be \nreported. \n F.  Medical Records: \n The parties submitted medical records ranging between October 2017 and November \n2022.   See, “Claimant’s  Exhibit  No  1” and “Respondents’  Exhibit  No  1”.  Mr.   Ezell \nacknowledged that he lived and worked in Chicago for about thirty (30) years before moving \nto  Arkansas  some  six (6) years  or  so  prior  to  the  time  of  the  hearing.  [TR  at  41-42]  He \nacknowledged that his out-of-state medical records were not available. Id.  \n Mr. Ezell discussed at the hearing the injuries he sustained in October of 2017 when \nhe  was  struck  by  the  cement  chute  of  a  moving  mixing  truck  while  working  for  another \nemployer.  He  presented  for  treatment  complaining  of  pain  in  his  back,  right  hip,  and  his \n\nEZELL- H204211  \n8 \n \nside.   The  emergency  department  records  reflect  that  he  was  diagnosed  with  multiple \ncontusions and a thoracic strain after the accident. [Resp. Exhibit No 1 at 6]  The imaging \nreflected no acute fractures, but noted “multilevel degenerative changes.” [Id. at 12-13]  He \nwas prescribed muscle relaxers and pain medication upon discharge. [Id. at 17] \n The medical evidence reflects that the claimant presented to PrimeCare on 15 June \n2019. [Resp. Exhibit No 1 at 21]  He complained of back pain caused by work, coming home \nfrom work with back pain, wearing a back belt, and that the pain gets worse when he takes \nthe back belt off. Mr. Ezell requested muscle relaxers, noting that they had helped before. \nRegarding his back pain, the chart noted that he worked with concrete. [Id. at 22]  He was \nagain prescribed muscle relaxers.  Muscle spasms in the back are noted on another visit dated \n10 December 2019. [Id. at 23]  \nThe  claimant presented again to  PrimeCare  on  4  December  2020,  with  a  primary \ncomplaint of back pain. [Id. at 27]  The chart reflects that Mr. Ezell noted pain the day before \nThanksgiving, but that he had only lifted turkey and ham [for holiday meals].  He reported, \n“I’m talking about pain...if I tried to get up right now, I couldn’t just get up.”  The provider \nassessed lumbar pain, strain of the lumbar region, and midline low back pain.  He received \nan injection for his pain, and imaging was ordered. [Id. at 28]  The x-ray impression from the \nfollowing day revealed “mild lower lumbar spine degenerative change/facet arthropathy.” [Id. \nat 29] \n Mr.  Ezell  later  reported  to  the  Baptist  emergency  department  on  2  March  2022, \ncomplaining of low back pain that started 9 days earlier. [Id. at 33]  He stated, “I was able to \nwalk until today and now the pain is so bad, I can’t even walk to the bathroom.”  He was \ndiagnosed with a strain and provided intramuscular medication. \n\nEZELL- H204211  \n9 \n \n His  next  presentation  to  PrimeCare  was  on  3  May  2022,  where  he noted  some \ncramping on the lower right side of his back for about three days. [Id. at 41]  The entry notes \nthat he lays concrete and thought he had a pulled muscle, but he denied a fall or injury.  He \nwas started on Naproxen, received a Toradol injection, and was told to follow up for continued \nmonitoring of his hypertension, which he stated had improved recently.  \nMr.  Ezell then  presented  to  PrimeCare again  on  9  May  2022,  again  complaining  of \nback pain. [Id. at 43]  He stated that he could not take off from work\n2\n because he had to pay \nbills and requested a note for nonstrenuous activity at work.  Another intramuscular injection \nwas administered.  \nThe claimant was seen again at the Baptist emergency department on 11 May 2022. \nHe complained of persistent low back pain for four weeks. [Id. at 46]  More injections were \nadministered, while x-ray impressions returned no acute findings. \nMr.  Ezell  then  presented  to  a  North  Little  Rock Urgent Care  on  13  May  2022, \ncomplaining  of  right  knee  pain.  [Id. at  51]  According to the note, “on 5/9/2022 he noticed \nsome knee pain while at work.  He noticed some weakness in the right lower extremity.  His \nboss told him to go home and rest up.” [Id. at 53]  He later saw Dr. Tad Pruitt on 8 June 2022 \nfor right knee pain he said began about fifteen (15) years earlier. [Id. at 60] \nThe records reflect numerous other visits over the next few months.  \nV.  ADJUDICATION \n The stipulated facts, as agreed during the prehearing conference, are outlined above.  \n It  is  settled  that  the  Commission,  with  the  benefit  of  being  in  the  presence  of  the \nwitness  and  observing  his  or  her  demeanor,  determines  a  witness’  credibility  and  the \n \n2\n His testimony at the hearing, however, indicated that his last day at work was 2 May 2022. [TR at \n35.] \n\nEZELL- H204211  \n10 \n \nappropriate weight to accord their statements. See Wal-Mart Stores, Inc. v. VanWagner, 337 \nArk. 443, 448, 990 S.W.2d 522 (1999).   \nA.  The Claimant Failed to Prove by a Preponderance of the Evidence that he Suffered \na Compensable Workplace Injury \n \nUnder Arkansas’ Workers’ Compensation laws, a worker has the burden of proving, \nby a preponderance of the evidence, that he sustained a compensable injury.  Ark. Code Ann. \n§ 11-9-102(4)(E)(i).  A compensable injury must be established by medical evidence supported \nby objective findings. Ark. Code Ann. § 11-9-102(4)(D).  Here, the claimant alleges that his \ninjury occurred either by specific incident or gradual onset. \nAs noted in the respondents’ hearing brief, the claimant must establish four (4) factors \nby  a  preponderance  of  the  evidence  to  prove  a  specific  incident  injury:  (1)  that  the  injury \narouse  during  the  course  of  employment;  (2)  that  the  injury  caused  an  actual  harm  that \nrequired medical attention; (3) that objective findings support the medical evidence; and (4) \nthat the injury was caused by a particular incident, identifiable in time and place. See Cossey \nv. G. A. Thomas Racing Stable, 2009 Ark. App. 666,5, 344 S.W.3d 684, 689. \nShould he fail to prove a specific incident, the claimant also offers that he is entitled \nto compensation under the theory that he sustained a gradual onset injury.  To prevail on \nthat claim, he must prove, by a preponderance of the evidence that: (1) the injury arose from \nhis employment; (2) the injury caused actual harm that required medical attention; and (3) \nthe injury was a major cause of the need for treatment.  The existence and extent of the injury \nmust be proven by objective medical evidence.  See Wal-Mart Stores, Inc., supra at 446; Ark. \nCode Ann. 11-9-102(4)(E)(ii).  For an injury to be considered a “major cause” for a need for \ntreatment, it must be more than fifty percent (50%) of the cause and it must be established \nby a preponderance of the medical evidence.  Ark. Code Ann. 11-9-102(14)(A-B). \n\nEZELL- H204211  \n11 \n \nAs a threshold matter the claimant failed to prove, by a preponderance of the evidence, \nthat he sustained a compensable injury under either theory.  Without the benefit of medical \nrecords  or  imaging  pre-dating the claimant’s time in Arkansas, the records still show a \nhistory  of  degenerative  changes  on  the  imaging  studies  after  his  2017  accident.  The \npresentation and complaints back then were nearly the same as the ones presented here, and \nthe objective medical evidence does not support a finding of a compensable injury.  \nIn July of 2019, well before beginning his work for the respondent, he reported back \npain and requested muscle relaxers for that pain.  He reported back pain again in December \nof 2020, just a year before beginning his work for the respondent.  The imaging associated \nwith that visit again showed lumbar spine degenerative changes and facet arthropathy. \nWhen  he  reported  to  the  emergency  department  on  11  May  2022,  after  his  alleged \nworkplace injury, the physician notes show no relevant report of trauma and “persistent” low \nback pain for four weeks.  The imaging from that visit was compared to the study from 2020, \nand no significant deviations from the previous imaging or acute injuries were reported.  His \n13 May 2022 imaging also revealed degenerative disc disease and retrolisthesis. \nThe  claimant’s  testimony  lacked  credibility.  His  version  of  the  events  was  not \nconsistent as to what happened when, nor was it consistent with the workplace records, nor \nwas it consistent with the medical records presented (beyond the fact that he had before and \ncontinued to have back problems around the date(s) in question).  Rather than attempting to \nsquare  potentially  or  plainly  conflicting  narratives,  he  adopted  an  evasive  demeanor.  For \nexample: \nQ:  And you wore a back belt pretty continuously? \nA:  Not often, but I did wear one occasionally. \nQ:  If the medical records reflect that you found it necessary to wear a back belt, you \nwouldn’t deny that, right? \n \n\nEZELL- H204211  \n12 \n \nA:  Yes. \n \nQ:  And you had muscle spasms pretty consistently from 2017, up to when you went \nto work for H.W. Tucker? \n \nA:  Over a period of time. \n... \n \nQ:  Okay But did you need [pain medication] periodically throughout that period of \ntime? \n \nA:  I don’t know. \n \nQ:  Correct? \n \nA: It depends on what you call periodically... .   [TR at 43-44] \n \nHe  testified  that  he  was  sent  home  on  a  Monday,  2  May  2022  [TR  at  26],  but  then \nagreed that he must have worked all day that Monday, before being sent home the next day \n(Tuesday) [TR at 32], and then denied the accuracy of records showing he worked full days \nthat Tuesday and Wednesday [TR at 34]. \n The claimant did not make any reasonable and timely effort to advise his employer \nthat he sustained a workplace injury, as required by the company’s policy.  Mr. Ezell did not \neven attempt to report an injury until he thought he might need surgery if the treatments \nhe’d earlier begun and continued on his own for his chronic pain were not successful.  He has \nfailed  to  prove, by  a  preponderance  of  the  evidence, with  credible  testimony  or  objective \nmedical findings that he suffered a compensable injury. \n B.  Benefits \n Because he failed to prove a compensable injury, the claimant’s request for reasonable \nand necessary medical treatment and TTD benefits are moot. \n C.  Attorney’s Fee \n In accordance with the above, the claimant is not entitled to an attorney’s fee. \nVI.  ORDER \n\nEZELL- H204211  \n13 \n \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":24030,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H204211 ERWIN EZELL, EMPLOYEE CLAIMANT H.W. TUCKER Co. INC., EMPLOYER RESPONDENT NATIONAL TRUST INSURANCE Co., CARRIER RESPONDENT FCCI INSURANCE GROUP, TPA RESPONDENT OPINION FILED 19 JULY 2023 On hearing before Arkansas Workers’ Compensation Commission ...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:4"],"injuryKeywords":["back","hip","thoracic","strain","lumbar","knee"],"fetchedAt":"2026-05-19T23:05:29.217Z"},{"id":"alj-H204774-2023-07-19","awccNumber":"H204774","decisionDate":"2023-07-19","decisionYear":2023,"opinionType":"alj","claimantName":"Felicia Parker","employerName":"University Of Arkansas For Medical Sciences","title":"PARKER VS. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES AWCC# H204774 JULY 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Parker_Felicia_H101899_20230719.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Parker_Felicia_H101899_20230719.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H101899 \n \nFELICIA PARKER, EMPLOYEE CLAIMANT \n \nUNIVERSITY OF ARKANSAS \nFOR MEDICAL SCIENCES, SELF-INSURED EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA                      RESPONDENT \n \nOPINION FILED JULY 19, 2023 \n \nHearing before Administrative Law Judge Steven Porch on June 20, 2023, in Little Rock, \nArkansas. \n \nClaimant  represented  by  Ms.  Sheila  F.  Campbell,  Attorney  at  Law,  North  Little  Rock, \nArkansas. \n \nRespondents  represented  by  Mr.  Charles  H.  McLemore,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held on this claim on June 20, 2023.  Claimant was represented by \nMs.  Sheila  F.  Campbell,  Attorney  at  Law  of  North  Little  Rock,  Arkansas;  Respondents \nwere represented by Mr. Charles H. McLemore, Attorney at Law of Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof this claim. \n \n2. An  employer/employee  relationship  existed  on  February  4,  2021, \nwhen  Claimant  sustained a  compensable  injury  to  her  head, neck, \nand  back,  for   which   certain  benefits   have   been  paid  by   the \nRespondents, \n \n3. The  Claimant’s  average  weekly  wage  on  February  4,  2021,  was \nsufficient to entitle her to compensation rates of $407.00 and $305.00 \nfor   temporary   total   and   permanent   partial   disability   benefits, \nrespectively; and, \n \n\nPARKER H101899 \n \n2 \n \n 4.  The  Respondents have controverted the additional benefits sought \nherein,  inclusive  of  the  Claimant’s  alleged  bilateral  knee  injuries  of \nFebruary 4, 2021. \n \nISSUES \n The parties have identified the following issues to be adjudicated: \n1.  Whether  the  Claimant  is  entitled  to  additional  reasonably  necessary  medical \ncare in relation to her compensable head, neck, and back injuries of February \n4, 2021. \n \n2.  Whether Claimant sustained compensable bilateral knee injuries on February \n4, 2021, and is entitled to appropriate benefits associated therewith. \n \n3.  Whether  Claimant  is  entitled  to  additional  temporary  total  disability  benefits \nfrom March 23, 2021, through a date yet to be determined, in relation to her \ncompensable head, neck, and back injuries of February 4, 2021.  \n \n4.  Whether  Claimant  provided  sufficient  notice of  her  alleged  left  knee  injury  of \nFebruary 4, 2021, in accordance with A.C.A. §11- 9-701. \n \n5.  Attorney’s fees with respect to controverted indemnity benefits.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s  and  Respondents’  contentions  are  set  out  in  their  responses  to  the \nPrehearing Questionnaire.  Said contentions are hereby incorporated by reference.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  documents, \nClaimant and Respondents’ post hearing briefs that are blue-backed and made a part of \nthis  record  and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity  to  hear  the  testimony  of  the  Claimant,  the  sole  witness in  this  claim, and \nobserve her demeanor, I hereby make the following findings of fact and conclusions of \nlaw in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n\nPARKER H101899 \n \n3 \n \n1.  The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The Claimant is entitled to additional medical treatment for her head, neck, and \nback injuries of February 4, 2021. \n4.   The  Claimant  is  entitled  to  additional  temporary  total  disability  benefits  from \nMarch 23, 2021, through a date to be determined. \n5.   Claimant did not  sustain a compensable bilateral knee injury on February 4, \n2021. \n6.  Claimant is entitled to controverted attorney fees. \nCASE IN CHIEF \nSummary of Evidence \n The  sole  witness  at  the  hearing  was  the  Claimant.  In addition  to the  prehearing \norder  discussed  above, I  also  admitted  into  evidence Claimant’s  and  Respondent’s \nexhibits that were properly admitted before the Commission. Claimant suffered an injury, \nduring  the  course  and  scope  of  her  employment  with  the  University  of  Arkansas  for \nMedical Sciences (hereinafter, “UAMS”), as a travelling medical assistant, when she was \ninvolved in a motor vehicle incident while heading to another patient’s home injuring her \nhead, neck, and back. Claimant was driving a vehicle owned by UAMS at the time of the \nvehicle   incident.   Respondents   accepted   the   head,   neck,   and   back   injuries   as \ncompensable. Since the vehicle incident, Claimant has received treatment for her neck \nand back. Dr. Michael Cassat ordered physical therapy and also sent Claimant to a spine \nand  pain  clinic  to  receive  some  nerve  blockers.  Both  treatment  efforts  provided  some \n\nPARKER H101899 \n \n4 \n \nbenefit to the Claimant. Despite these efforts, Claimant still had significant pain from her \ninjuries. Nevertheless, Dr. Cassat released Claimant to return to light duty work on March \n15, 2021. \nThe Respondent offered Claimant a position as a Phone MA where she would help \nschedule client visits and refills. The Claimant continued to have difficulties and be in pain \nwhile  attempting  to perform  her  new  job  duties.  Subsequently,  the Claimant  requested \nand  received  approval  for  a  change  of  physician  to  Dr.  Ahmad  Ghaleb  from the \nCommission.  The  Claimant  made  the  request  because  she  was unable  to  sit  or  stand \ncomfortably which resulted in her missing substantial time from work. Claimant was later \nfound to be disabled by the Social Security Administration.   \nAdjudication \nA.  Whether Claimant is entitled to additional reasonably necessary medical care \nin  relation  to  her  compensable  head,  neck,  and  back  injuries  of  February  4, \n2021. \n Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states  that an \nemployer  shall  provide  for  an  injured  employee  such  medical  treatment  as  may be \nnecessary in connection with the injury received by the employee.  Wal-Mart Stores, Inc. \nv. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only for \nsuch treatment and services as are deemed necessary for the treatment of the claimant’s \ninjuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  The claimant \nmust prove by a preponderance of the evidence that medical treatment is reasonable and \nnecessary for the treatment of a compensable injury.  Brown, supra; Geo Specialty Chem. \nv. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).  What constitutes reasonable and \n\nPARKER H101899 \n \n5 \n \nnecessary   medical   treatment   is   a  question   of  fact  for   the   Commission.   White \nConsolidated  Indus.  v.  Galloway,  74  Ark.  App.  13,  45  S.W.3d  396  (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As the Arkansas Court of Appeals has held, a claimant may be entitled to additional \ntreatment  even  after  the  healing  period  has  ended,  if  said  treatment  is  geared  toward \nmanagement of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 \nS.W.3d 31 (2004); Artex Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d 845 \n(1983).  Such services can include those for the purpose of diagnosing the nature and \nextent  of  the  compensable  injury;  reducing  or  alleviating  symptoms  resulting  from  the \ncompensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing  further \ndeterioration of the damage produced by the compensable injury.  Jordan v. Tyson Foods, \nInc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination of  a  witness’s \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness but may accept and translate into findings of fact only those portions of \nthe testimony that it deems worthy of belief.  Id. \nClaimant  has  continued  to  have  pain  in  her  neck  and  back  ever  since  her \ncompensable  February  4,  2021,  injury.  When  Claimant  was  released  by  Dr.  Cassat  to \nlight duty work, Claimant’s employer offered her a desk job. Claimant accepted that new \n\nPARKER H101899 \n \n6 \n \nassignment. But due to her work related back and neck injuries, sitting was uncomfortable \nfor her. As a result, she missed a lot of work in her new position. Dr. William Ackerman \nreviewed  the  patients  MRI  and  found  that  she  has  a  left  paracentral  disc  protrusion  at \nL1/2  with  compression  of  the  left  L2  nerve  root.  Dr.  Michael  Cassat’s  March  1,  2021, \nprogress note states that Claimant is suffering from a multilevel degenerative change with \nmultiple  herniations,  areas  of  central  and  foraminal  stenosis,  and  areas  of  facet \nhypertrophy. I find by the preponderance of evidence that Claimant’s release to light duty \nwork on March 15, 2021, was not the end of Claimant’s healing period. I do find by the \npreponderance of the evidence that claimant’s continued treatment of her neck and back \nwere  reasonable  and necessary  medical  care  related  to  her  compensable  head,  neck, \nand back injuries of February 4, 2021. As a result, the Respondents are ordered and shall \npay all Claimant’s bills for the treatment and pain management of her head, neck, and \nback. Though Respondent, at the full hearing, argued Claimant had a pre-existing back \ncondition  and  there  is  a  lack  of  objective  findings  for Claimant’s  head,  neck,  and  back \ninjuries, those issues were not properly before the Commission per the October 6, 2022, \nPre-Hearing  Order.  To  the  contrary,  both  parties  have  stipulated  in  that  Order  that \nClaimant’s  head,  neck,  and  back  injuries  were  compensable  and  that  certain  benefits \nwere paid. I have accepted those stipulations. Therefore, the issues of whether Claimant \nhad a  pre-existing  condition  and  new  objective  findings  will  not  be  addressed  in  this \nopinion. But this still leaves the question of whether the Claimant is entitled to temporary \ntotal disability benefits from March 23, 2021, to a date to be determined?   \nTemporary total disability for unscheduled injuries is that period within the healing \nperiod in which the Claimant suffers total incapacity to earn wages. Ark. State Highway \n\nPARKER H101899 \n \n7 \n \nand Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing \nperiod ends when the underlying condition causing the disability has become stable and \nnothing further in the way of treatment will improve that condition. Mad Butcher, Inc. v. \nParker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  Claimant  continues  to  go  through \ntreatment for her neck and spine to improve her final condition. Pursuant to Dr. William \nAckerman’s  clinical  note  for  Claimant’s April  14,  2021,  visit he  makes  clear Claimant’s \ntreatment plan will be to “prevent progression of the patient’s chronic illness and provide \nsupportive care, so the patient is able to perform activities of daily living without restriction, \nbased  on her  current pathology.” No evidence  has been  presented  to  show  that  these \nefforts will not improve Claimant’s final condition. Claimant has missed large amounts of \nwork since her February 4, 2021, injury. Thus, I find by the preponderance of evidence \nthat Claimant is entitled to temporary total disability from March 23, 2021, to a date to be \ndetermined when she is stable or has reached maximum medical recovery. \nB.  Whether  Claimant  has  sustained  compensable  bilateral  knee  injuries  on \nFebruary 4, 2021, and is entitled to appropriate benefits? \n In  this  action,  Claimant  has  alleged  that  she  suffered  compensable  injuries  by \nspecific incident to her knee(s) on February 4, 2021, as she was heading to see her next \npatient  as  a  travelling  medical  assistant.  The  alleged  injury  occurred  during  a motor \nvehicle   incident   during   the   course   and   scope   of   her   employment   with   UAMS. \nRespondents  argued  that  this  injury  is  not  compensable  and,  in  the  alternative,  the \nClaimant failed to give timely notice. \n Arkansas Code Annotated § 11-9-102(4)(A)(i) (Repl. 2012), which I find applies to \nthe analysis of Claimant’s alleged injuries, defines “compensable injury”: \n\nPARKER H101899 \n \n8 \n \n(i) An accidental injury causing internal or external physical harm to the body \n.  .  .  arising  out  of  and  in  the  course  of  employment  and  which  requires \nmedical services or results in disability or death.  An injury is “accidental” \nonly if it is caused by a specific incident and is identifiable by time and place \nof occurrence[.] \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  “Objective findings” are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe  element  “arising  out  of  .  .  .  [the]  employment”  relates  to  the  causal  connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987).  An injury arises out of a claimant’s employment \n“when  a  causal  connection  between  work  conditions  and  the  injury  is  apparent  to  the \nrational mind.”  Id. \n In Hudak-Lee  v.  Baxter  County  Reg.  Hosp.,  2011  Ark.  31,  378  S.W.3d  77,  the \nArkansas Supreme Court stated: \nIn order for an accidental injury to be compensable, it must arise out of and \nin  the  course of  employment.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i)  (Supp. \n2009).  A compensable injury does not include an injury that is inflicted upon \nthe employee at a time when employment services are not being performed. \nArk.  Code  Ann.  §  11-9-102(4)(B)(iii)  (Supp.  2009).    The  phrase  “in  the \ncourse of employment” and the term “employment services” are not defined \nin  the Workers'  Compensation Act.   Texarkana Sch.  Dist.  v.  Conner,  373 \nArk. 372, 284 S.W.3d 57 (2008).  Thus, it falls to the court to define these \nterms in a manner that neither broadens nor narrows the scope of the Act.  \nId. \n \nAn employee is performing employment services when he or she is doing \nsomething  that  is  generally  required  by  his  or  her  employer.   Id.; Pifer  v. \nSingle  Source  Transp.,  347  Ark.  851,  69  S.W.3d  1  (2002).    We  use  the \nsame  test  to  determine  whether  an  employee  is  performing  employment \nservices as we do when determining whether an employee is acting within \n\nPARKER H101899 \n \n9 \n \nthe course and scope of employment.  Jivan v. Econ. Inn & Suites, 370 Ark. \n414, 260 S.W.3d 281 (2007).  The test is whether the injury occurred within \nthe time and space boundaries of the employment, when the employee was \ncarrying out the employer's purpose or advancing the employer's interest, \ndirectly or indirectly.  Id.  In Conner, 373 Ark. 372, 284 S.W.3d 57, we stated \nthat where it was clear that the injury occurred outside the time and space \nboundaries of employment, the critical inquiry is whether the interests of the \nemployer were being directly or indirectly advanced by the employee at the \ntime  of  the  injury.    Moreover,  the  issue  of  whether  an  employee  was \nperforming employment services within the course of employment depends \non the particular facts and circumstances of each case.  Id. \n \n If  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n The Claimant has not satisfied her burden with any credible objective findings as \nto her alleged work-related injuries to her knees. Thus, I find by the preponderance of the \nevidence that Claimant did not meet her burden of compensability for her knee(s) and this \nclaim must be denied. Since this is my finding there is no need to explore whether the \nClaimant submitted timely notice to her employer.  \nATTORNEY FEES \nOne of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation on the party who makes litigation necessary.  Brass v. Weller, 23 Ark. App. 193, \n745 S.W.2d 647 (1998).  Under Ark. Code Ann. § 11-9-715 (Repl. 2012): \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat a claim has been controverted, in whole or in part, the commission shall \n\nPARKER H101899 \n \n10 \n \ndirect that fees for legal services be paid to the attorney for the claimant as \nfollows:  One-half (½) by the employer or carrier in addition to compensation \nawarded;  and  one-half  (½)  by  the  injured  employee  or  dependents  of  a \ndeceased employee out of compensation payable to them. \n \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have \ncontroverted Claimant’s entitlement to additional indemnity benefits.  Thus, the evidence \npreponderates that her counsel, the Hon. Sheila F. Campbell, is entitled to the fee as set \nout above. \nCONCLUSION \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid in \na lump sum without discount, and this award shall earn interest at the legal rate until paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","textLength":18876,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H101899 FELICIA PARKER, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES, SELF-INSURED EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/TPA RESPONDENT OPINION FILED JULY 19, 2023 Hearing before Administrative Law Judge Steven Porch on...","outcome":"granted","outcomeKeywords":["granted:2","denied:2"],"injuryKeywords":["neck","back","knee"],"fetchedAt":"2026-05-19T23:05:31.284Z"},{"id":"alj-H206137-2023-07-18","awccNumber":"H206137","decisionDate":"2023-07-18","decisionYear":2023,"opinionType":"alj","claimantName":"Frank Bowdoin","employerName":"Ok Foods, Inc","title":"BOWDOIN VS. OK FOODS, INC. AWCC# H206137 JULY 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BOWDOIN_FRANK_H206137_20230718.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOWDOIN_FRANK_H206137_20230718.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H206137 \n \nFRANK BOWDOIN, Employee CLAIMANT \n \nOK FOODS, INC., Employer RESPONDENT \n \nOK FOODS, INC., Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 18, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by R. SCOTT ZUERKER, Attorney at Law, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  April  20,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on  February  27,  2023,  and  a  Pre-hearing \nOrder  was  filed  on  February  28,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on July 11, \n2022. \n 3. The respondents have controverted the claim in its entirety. \n By agreement of the parties the issues to litigate are limited to the following: \n\nBowdoin – H206137 \n \n-2- \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  his  right  hand  and  wrist  on  or \nabout July 11, 2022. \n 2. Whether Claimant is entitled to medical treatment for his right hand and wrist injury. \n 3. Whether Claimant is entitled to temporary total disability benefits from July 12, 2022, \nto a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n 5. Claimant’s compensation rates. \n Claimant’s contentions are: \n“The  claimant  contends  that  he  sustained  a  compensable  injury  to \nhis right hand and wrist  in an employment related fall on July 11, \n2022  that  has  caused  and  continues  to  cause  him  to  require \nreasonable  necessary  medical  services  and  has  resulted  in  him \nbeing  rendered  temporarily  totally  disabled  from  July  12,  2022 \nthrough  a  date  yet  to  be  determined.  Finally,  he  contends  his \nattorney  is  entitled  to  a  statutory  fee  on  all  appropriate  benefits \nawarded.” \n \n Respondents’ contentions are: \n \n“Respondent controverts this claim in its entirety and contends that \nClaimant  did  not  sustain  a  compensable  injury  as  that  term  is \ndefined by Act 796.” \n \n The  claimant  in  this  matter  is  a  70-year-old  male  who  alleges  to  have  sustained \ncompensable  injuries  to  his  right  hand  and  right  wrist  on  or  about  July  11,  2022.  The  claimant \nhad very recently been hired by the respondent when he alleges his injuries to have occurred on \nthe  first  day  of  orientation,  before  his  job  duties  had  been  assigned  to  him.  The  claimant  gave \ndirect examination testimony about how he alleges the injuries to have occurred and his reporting \nof his injuries as follows: \nQ All right. Now, what were you doing for OK Foods on July \n11, 2022? \n\nBowdoin – H206137 \n \n-3- \n \nA I was in orientation. \n \nQ And did you have an accident on that day? \n \nA Yeah, in the bathroom. I fell and crushed by own hand with \nmy own body trying to break my fall. \n \nQ Can you describe the accident in a little more detail for the \nJudge? \n \nA Well, I slipped and tried to put my hand down. I landed on \nit sideways and I thought I broke – I thought for sure I broke these \ntwo fingers because it hurt so much. \n \nQ They can’t tell what two fingers. \n \nA These two here (indicating). \n \nQ Nobody  is  videotaping  this.  You  have  to  tell  us  which \nfingers it is. \n \nA It don’t know.  How do  you explain them? The little finger \nand the next one in. \n \nQ All right. Your ring finger and your little finger? \n \nA Yes. \n \nQ And  what  difficulties  did  you  have  after  this  accident? \nWhat physical difficulties or symptoms? \n \nA My  hand  was  throbbing  all  the  time.  I  couldn’t  hardly  get \nany sleep at all. And to this day, the same. It hasn’t improved at all. \n \nQ Did you also initially have some low back complaints? \n \nA Yes,  my  back  did  hurt  the  day  it  happened,  but  then  it \nstopped hurting and I feel like it’s 100 percent now. \n \nQ And did you report this accident and your difficulties to OK \nFoods? \n \nA Yes. When it happened immediately. \n \n\nBowdoin – H206137 \n \n-4- \nQ And were you sent for medical treatment? \n \nA Yes. \n \n On  cross  examination,  the  claimant  was  asked  about  the  events  surrounding  his  alleged \ninjury in more detail as follows: \nQ Okay.  Let’s  talk  a  little  bit  about  the  accident  itself.  And  I \ntook your deposition. We have given the Judge your deposition so \nI don’t want to belabor it, but it is my understanding that during the \norientation you were given two breaks, a break in the morning and \na break in the afternoon and also a lunch; correct? \n \nA Yes. \n \nQ And this accident happened during one of those breaks? \n \nA Yes. \n \nQ I  think  you  told  me  didn’t  most  people  go  outside  and \nsmoke a cigarette or do whatever they did? \n \nA Yes. \n \nQ You  didn’t  have  any  restrictions  on  what  you  had  to  do \nduring the break; did you? \n \nA No. \n \nQ You  didn’t  have  to  respond  to  any  customers  or  maintain \nany equipment while you were on the break? \n \nA No. \n \nQ And  as  I  recall  from  your  testimony,  you  had  gone  I  think \noutside for your break; correct? \n \nA Just for a breath of fresh air, yes. \n \nQ Okay.  And  then  on  your  way  back  in,  you  decided  to  stop \nat the restroom? \n \nA Uh-huh. \n \n\nBowdoin – H206137 \n \n-5- \nQ And you had to have a bowel movement; correct? \n \nA Uh-huh. \n \nQ It  is  my  understanding  you  sat  on  the  commode,  had  your \nbowel movement? \n \nA Yes, sir. \n \nQ And  as  you  were  standing  up  from  that  bowel  movement, \nthat is when you fell? \n \nA Well, I pulled my pants unbuckled and took a step and fell. \n \nQ Okay. You are still in the stall? \n \nA It’s not a stall. It’s an open bathroom. \n \nQ Okay. You hadn’t even gotten to the point of washing your \nhands yet; had you? \n \nA No. \n \n At  Respondents’  Exhibit  2,  pages  1-2, a  document  is  found  entitled “Initial  Incident \nReport.”  That  report  gives  general  information  about  the  claimant  and  the  incident  he  alleges. \nThe  report  indicates  the  claimant  reported  his  July  11,  2022,  incident  to  Lessyrinereira \nVelazquez  Diaz.  In  the  report,  the  claimant  complained  of  lumbar,  right  wrist,  and  right  hand \ndifficulties. Specifically, the claimant reported a right ring and right pinky finger injury in regard \nto his right hand.  \n The  claimant  was  seen  at  Occupational  Medicine  Clinic  on  July  11,  2022,  by  Tawni \nGlander, APN. Following is a portion of that medical report: \nCHIEF COMPLAINT \nRight hand \n \nPATIENT DESCRIPTION OF ACCIDENT \nFrank  slipped  in  the  bathroom  causing  him  to  fall  on  right  hand \ncausing hand. \n\nBowdoin – H206137 \n \n-6- \n \nHISTORY OF PRESENT ILLNESS \nFrank’s  primary  problem  is  pain  located  in  the  right  hand.  He \ndescribes  it  as  sharp,  numb,  tingling.  The  problem  began  on \n7/11/2022.  He  has  noticed  that  it  is  made  worse  by  moving  it.  He \nalso  notes  that  it  is  accompanied  by  tingling,  numbness.  His  pain \nlevel  is  5.  Additional  History:  Injury  date  7/1/2022:  slipped  in  the \nbathroom  causing  FOOSH  injury  of  right  hand  with  now  pain  to \n4\nth\n-5\nth\n digits and medial hand. Also having lumbar pain, difficulty \nsitting, feels a sharp shooting pain with a “pull” feeling in his back. \nArea iced at work after incident. \n \n*** \nEXAMINATION \n*** \nRight  Hand:  An  abrasion  is  not  present.  An  open  wound  is  not \npresent.  Pain  on  motion  is  present  over  the  4\nth\n  metacarpal,  volar \nsurface, Pain on motion is present over the 5\nth\n metacarpal. Pain to \npalpation  is  present  over  the  5\nth\n  metacarpal.  Pain  to  palpation  is \npresent  over  the  4\nth\n  metacarpal.  Range  of  motion  is  normal. \nSwelling is not present. Strength is limited. A laceration is present \nover the hand, dorsal surface. Erythema is not present. Its surfaces \nare clean, Sensation distal to the wound is normal. At the deepest it \nextends through the dermis and into the subcutaneous layer, Motor \nfunction distal to the wound is normal, The skin edges are smooth. \nThe laceration is 3 centimeters long. \n \n*** \nIMAGING STUDIES \nX-Ray  Results:  x-ray –  lumbar  spine,  right  hand  fingers  with  no \nabnormal findings. \n \nDIAGNOSIS \n1. Low back pain (M54.4) \n2. Pain in right hand (M79.641). \n3. Pain in right finger(s) MM79.644) \n4. Fall on same level, unspecified, initial encounter (W18.30XA) \n \nDISCUSSION \nThis  is  the  first  examination  for  this  back  strain  and  hand  injury. \nHe was provided NSAIDs for the pain. He was instructed on back \nexercises. He is to ice the back  after the exercises. He will follow \nup  in  10  days.  Frank  received  a  copy  of  the  ‘Visit  Summary  and \nInstructions’. He was given  an  opportunity  to  ask  questions  about \nhis care. He verbalized understanding. \n\nBowdoin – H206137 \n \n-7- \n \nPLAN OF CARE \nComments   Restrictions   provided.   NSAID   as   prescribed   and \nTylenol  as  needed  for  pain.  Muscle  relaxer  at  night.  Hot  showers \ntwice daily. Home exercises given to be done daily. Follow up in 1 \nweek. \n \n*** \nMEDICAL CAUSATION \nThe cause of this problem is related to work activities. \n \nRECOMMENDED WORK STATUS \nFrank’s   recommended   work   status   is   Restricted   Duty.   The \neffective date for this work status is 7/11/2022. \n \nRECOMMENDED ACTIVITY RESTRICTIONS \nRight Hand: Grasping may not be performed. Lifting should not be \nperformed.  Should  keep  wound  clean  and  dry.  Back:  Lifting \nshould  be  limited  to  20  pounds  or  less.  Lifting  repetitively  should \nbe  limited  to  10  pounds  or  less.  Limit  bending/stooping/twisting. \nAlternate sit/stand/walk as tolerated. \n \nAFTERCARE INSTRUCTIONS \nRestrictions  given.  Recommend  take  2  acetaminophen  (500  mg \neach)  every  6  hours  as  needed  for  pain.  NSAID  twice  daily  with \nfood  as  prescribed.  Recommend  hot  showers  twice  daily.  Low \nback  exercises  provided.  Follow  up  here  in  10  days.  Contact  us  if \nyou have any questions or problems. \n \n An x-ray of the claimant’s right fingers was also performed at Mercy Clinic Regions on \nthat same day and showed “no acute fractures or dislocations.” The claimant’s right-hand x-ray \nalso revealed “negative right hand x-ray.” \n On  July  21,  2022,  the  claimant  was  again  seen  by  Tawni  Glander,  APN.  Following  is  a \nportion of that medical record: \nCHIEF COMPLAINT \nRight hand \n \nPATIENT DESCRIPTION OF ACCIDENT \nFrank  slipped  in  the  bathroom  causing  him  to  fall  on  right  hand \ncausing hand. \n\nBowdoin – H206137 \n \n-8- \n \nHISTORY OF PRESENT ILLNESS \nFrank’s  primary  problem  is  pain  located  in  the  right  hand.  He \ndescribes it as throbbing. The problem began on 7/11/2022. Frank \nsays  it  seems  to  be  constant.  He  has  noticed  that  it  is  made  worse \nby  moving  it.  He  feels  it  is  not  improving.  His  pain  level  is  8. \nAdditional  history:  Reports  continued  throbbing  and  pain  in  right \nhand with no numbness or tingling. Has not been taking prescribed \nmedications,  states  he  took  one  of  them  but  did  not  feel  it  was \neffective and no longer took anything else. Worse with movement, \nreports resolved with rest. Back pain resolved. \n \n*** \nEXAMINATION \n*** \nRight  Hand:  An  open  wound  is  not  present.  An  abrasion  is  not \npresent.  Swelling  is  not  present.  Strength  is  limited.  The  hand \nexamination  is  normal,  dorsal  surface,  Erythema  is  not  present. \nPain  on  motion  is  present  over  the  4\nth\n  metacarpal,  dorsal  surface, \nPain  on  motion  is  present  over  the  5\nth\n  metacarpal,  dorsal  surface, \nPain to palpation is not present. \n \n*** \nDIAGNOSIS \n2. Pain in right hand (M79.641) \n3. pain in right finger(s) (M79.644) \n \nDISCUSSION \nThis is the follow up visit for this hand injury.  It is recommended \nhe start taking the  NSAID as prescribed  and the  muscle relaxer at \nbedtime.  Frank  received  a  copy  of  the  ‘Visit  Summary  and \nInstructions’. He was given an opportunity to  ask  questions  about \nhis care. He verbalized understanding. \n \nPLAN OF CARE \nComments   Restrictions   provided.   NSAID   as   prescribed   and \nTylenol as needed  for pain. Muscle relaxer at night. Contrast bath \nto right hand. \n \n*** \nIMAGING STUDIES \nX-Ray Results: repeat x-ray right hand – no abnormal findings. \n \nMEDICAL CAUSATION \nThe cause of this problem is related to work activities. \n\nBowdoin – H206137 \n \n-9- \n \nRECOMMENDED WORK STATUS \nFrank’s   recommended   work   status   is   Restricted   Duty.   The \neffective date for this work status is 7/11/2022. \n \nRECOMMENDED ACTIVITY RESTRICTIONS \nRight Hand: Lifting should not be performed. Grasping may not be \nperformed. Limit use right hand, Splint should be used. \n \nAFTERCARE INSTRUCTIONS \nRestrictions  continued  for  right  hand.  Restrictions  lifted  for  back. \nRecommend  prescribed  NSAID  twice  daily  and  muscle  relaxer  at \nnight. Contrast baths. \nFollow up here in 1 week. Contact us if you have any questions or \nproblems. \n \n On  July  28,  2022,  the  claimant  was  again  seen  at  the  Occupational  Medicine  Clinic  by \nTawni Glander, APN. Following is a portion of that medical record: \nCHIEF COMPLAINT \nRight hand \n \nPATIENT DESCRIPTION OF ACCIDENT \nFrank  slipped  in  the  bathroom  causing  him  to  fall  on  right  hand \ncausing hand. \n \nHISTORY OF PRESENT ILLNESS \nFrank’s  primary  problem  is  pain  located  in  the  right  hand.  He \ndescribes it as throbbing. The problem began on 7/11/2022. Frank \nsays that it seems to be variable – depending on the activity level. \nHe  has  noticed  that  it  is  made  worse  by  moving  it.  He  feels  it  is \nimproving   slightly.   His   pain   level   is   4.   Additional   History: \nImproved,   throbbing   with   movement   or   use   of   right   hand, \ncontinues to report numbness to 4\nth\n and 5\nth\n digits of right hand. He \nhas  not  been  using  brace  with  activity  as  instructed,  he  states  he \nhas  not  been  back  to  work  since  injury  date.  He  did  take  the \nprescribed medication and reports improvement with NSAID use. \n \n*** \nEXAMINATION \n*** \nRight  Hand:  An  open  wound  is  not  present.  An  abrasion  is  not \npresent.  Swelling  is  not  present.  Strength  is  limited.  The  hand \nexamination  is  normal,  dorsal  surface,  Erythema  is  not  present. \n\nBowdoin – H206137 \n \n-10- \nPain  on  motion  is  present  over  the  4\nth\n  metacarpal,  dorsal  surface, \nPain  on  motion  is  present  over  the  5\nth\n  metacarpal,  dorsal  surface, \nPain to palpation is not present. \n \n*** \nDIAGNOSIS \n1. Pain in right hand (M79.641) \n2. Pain in right finger(s) (M79.644) \n \nDISCUSSION \nThis is the follow up visit for this hand injury.  It is recommended \nhe continue taking the NSAID as prescribed and the muscle relaxer \nat  bedtime  if  needed.  It  is  recommended  that  he  use  the  provided \nbrace for any activity with right hand. Frank received a copy of the \n‘Visit Summary and Instructions’. He was given an opportunity to \nask questions about his care. He verbalized understanding. \n \nPLAN OF CARE \nComments Brace with any use of right hand. \n \nMEDICAL CAUSATION \nThe cause of this problem is related to work activities. \n \nRECOMMENDED WORK STATUS \nFrank’s   recommended   work   status   is   Restricted   Duty.   The \neffective date for this work status is 7/11/2022. \n \nRECOMMENDED ACTIVITY RESTRICTIONS \nRight Hand: Lifting should not be performed. Grasping may not be \nperformed. Limit use right hand, Splint should be used. \n \nAFTERCARE INSTRUCTIONS \nContinue  prescribed  NSAID  twice  daily  and  muscle  relaxer  at \nnight.  Contrast  baths.  Needs  to  use  brace  with  any  use  of  right \nhand.  Follow  up  here  in  2  weeks.  Contact  us  if  you  have  any \nquestions or problems. \n \n On August 11, 2022, the claimant was again seen by Tawni Glander, APN. Following is \na portion of that medical record: \nCHIEF COMPLAINT \nRight hand \n \nPATIENT DESCRIPTION OF ACCIDENT \n\nBowdoin – H206137 \n \n-11- \nFrank  slipped  in  the  bathroom  causing  him  to  fall  on  right  hand \ncausing hand. \n \nHISTORY OF PRESENT ILLNESS \nFrank’s  primary  problem  is  pain  located  in  the  right  hand.  He \ndescribes it as throbbing. The problem began on 7/11/2022. Frank \nsays that it seems to be variable – depending on the activity level. \nHe  has  noticed  that  it  is  made  worse  by  moving  it.  He  feels  it  is \nimproving slightly. His pain level is 0. Additional History: Reports \nno   improvement,   continues   to   throb   with   movement,   reports \ndifficulty  flexing  4\nth\n  and  5\nth\n  digits,  unable  to  make  a  fist  due  to \npain and throbbing, continued numbness to 4\nth\n and 5\nth\n digits. He is \nnot  using  brace  or  splint  of  any  kind,  no  longer  doing  any  work \nactivities, he is limiting use of right hand at home. \n \n*** \nEXAMINATION \n*** \nRight  Hand:  An  open  wound  is  not  present.  An  abrasion  is  not \npresent.  Swelling  is  not  present.  Strength  is  limited.  The  hand \nexamination  is  normal,  dorsal  surface,  Erythema  is  not  present. \nPain on motion is present over 4\nth\n metacarpal, dorsal surface, Pain \non motion is present over the 5\nth\n metacarpal, dorsal surface, Pain to \npalpation is not present. \n \n*** \nDIAGNOSIS \n1. Pain in right hand (79.641) \n2. Pain in right finger(s) (M79.644) \n \nDISCUSSION \nThis  is  the  follow  up  visit  for  this  hand  injury.  Due  to  reported \nlimitation  of  movement  and  ROM  we  will  start  PT  for  his  right \nhand and fingers to gain improved mobility. \n \nPLAN OF CARE \nComments Brace with any use of right hand. \n \nMEDICAL CAUSATION \nThe cause of this problem is related to work activities. \n \nRECOMMENDED WORK STATUS \nFrank’s   recommended   work   status   is   Restricted   Duty.   The \neffective date of this work status is 7/11/2022. \n \n\nBowdoin – H206137 \n \n-12- \nRECOMMENDED ACTIVITY RESTRICTIONS \nRight Hand: Lifting should not be performed. Grasping may not be \nperformed. Limit use right hand, Splint should be used. \n \nAFTERCARE INSTRUCTIONS \nFollow up in 3 weeks. \n \nThe  claimant’s  right  hand  continued  to  be  restricted  and  was  placed  in  a  splint.  The  claimant \nwas,  at  that  time,  referred  to  physical  therapy.  The  claimant  began  physical  therapy  on  August \n17,  2022,  at  Fort  Smith  Hand  Therapy  and  had  six  physical  therapy  sessions,  of  which  his  last \noccurred on August 21, 2022. \n The claimant eventually  underwent  an MRI of his right hand without contrast at Baptist \nHealth  on  February  23,  2023.  Following  is  a  portion  of  that  diagnostic  report  authored  by  Dr. \nEira Roth: \nIMPRESSION: \n1.  Technically  suboptimal  exam  due  to  failed  fat  saturation  across \nthe thumb and thenar soft tissues. Within these confines there is no \ndefinite evidence of acute injury. However if there continues to be \na  strong  index  of  clinical  suspicion  consider  correlation  with \nconventional   CT   for   a   more   detailed   assessment   of   cortical \nintegrity. \n \n2.  Thickened  edematous  flexor  tendons  to  the  2\nnd\n  and  3\nrd\n  digits \nsuggesting tendinopathy versus a strain. Correlate clinically. \n \n3. Background conventional osteoarthritis. \n \n It is the claimant’s burden to prove by a preponderance of the evidence that he sustained \ncompensable injuries to his right  hand and right wrist on or about July 11,  2022. In order to do \nso,  the  claimant  must  show  evidence  of  objective  medical  findings  regarding  the  injuries  he \nalleges.  In  review  of  the  evidence  admitted  into  the  record  in  this  matter,  I  find  no  objective \nmedical evidence or findings regarding the claimant’s right wrist. As such, the claimant is unable \nto prove a compensable right wrist injury as he alleges. \n\nBowdoin – H206137 \n \n-13- \n The  claimant  is  able  to  prove  the  existence  of  objective  medical  evidence  regarding  his \nright  hand.  The  medical  report  from  the  claimant’s  July  11,  2022,  visit  to  the  Occupational \nMedicine  Clinic  with  Tawni  Glander,  APN,  found  at  Respondents’  Exhibit  1,  page  2,  in  the \n“EXAMINATION”  section  and  the  subsection “Right  Hand,”  specifically  states  in  part “A \nlaceration is present over the hand, dorsal surface, Erythema is not present. Its surfaces are clean, \nSensation distal to the wound is normal, At its deepest it extends through the dermis and into the \nsubcutaneous  layer,  Motor  function  distal  to  the  wound  is  normal,  The  skin  edges  are  smooth, \nThe laceration is 3 centimeters long.” The claimant has proven the existence of objective medical \nfindings regarding his right hand. The claimant must also prove a causal connection between the \nobjective medical evidence of a right-hand injury and the July 11, 2022, incident he alleges. \n The claimant testified that while on a break from his orientation he left the building to get \nsome fresh air. Then on his return to orientation stopped to use the restroom. After the claimant \nhad  completed  defecating,  he  stood  up,  secured  his  clothing,  and  fell  as  he  moved  toward  the \nlavatory.  It  is  in  this  fall  he  alleges  his  right-hand injury  to  have  occurred.  The  claimant’s \ndeposition and hearing testimony are generally consistent with the medical records and incident \nreport  submitted  into  evidence  regarding  the  events  of  and  surrounding  the  falling  incident. \nGiven  those  documents  and  the  claimant’s  testimony,  I  find  the  claimant  can  prove  a  causal \nconnection  between  his  objective  evidence  of a  right-hand  injury  and  the  restroom  falling \nincident he alleges on July 11, 2022. The claimant in this matter is able to prove that he sustained \na compensable right-hand injury on July 11, 2022, when he fell in the restroom.  \n The  claimant  has  asked  the  Commission  to  determine  whether  he  is  entitled  to  medical \ntreatment for his right hand and right wrist. The claimant is not entitled to medical treatment for \nhis  right  wrist  as  the  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he \n\nBowdoin – H206137 \n \n-14- \nsuffered a compensable right wrist injury on or about July 11, 2022. The claimant  is entitled to \nreasonable  necessary  medical  treatment  for  his  compensable  right  hand  injury.  The  medical \nevidence  submitted  into  the  record  regarding  the  claimant’s  right  hand  is  reasonable  necessary \nmedical   treatment   for   his   compensable   right   hand   injury.   The   claimant   is   entitled   to \nreimbursement  for  any  out-of-pocket  expenses  regarding  medical  treatment  submitted  into  the \nhearing record as it is all reasonable necessary treatment for his compensable right hand injury. \n The claimant has asked the Commission to determine if he is  entitled to temporary total \ndisability benefits from July 12, 2022, to a date yet to be determined. The claimant was placed on \nactivity  restrictions  on  July  11,  2022,  the  day  of  the  incident,  by  Tawni  Glander,  APN  at \nOccupational Medicine  Clinic.  The  claimant  was  given  the  following  right-hand  restrictions  at \nthat  time, “Grasping  may  not  be  performed.  Lifting  should  not  performed.  Should  keep  wound \nclean  and  dry.”  It  is  clear  the  claimant  was  placed  on  restrictive  duty  on  the  same  day  as  his \ncompensable  right-hand  injury.  The  claimant  remained  on  work  restriction  and  on  August  11, \n2022,  when  he  again  saw  Tawni  Glander,  APN,  he  had  restrictive  duty  with  the  limitations  of \n“Lifting  should  not  be  performed.  Grasping  may  not  be  performed.  Limit  use  right  hand,  splint \nshould be used.” \n The  claimant’s  testimony  is  unequivocable  that  he  was  offered  light  duty  work  and  did \nnot  accept  or  attempt  to  do  so.  On  direct  examination,  the  claimant  was  questioned  about  light \nduty work as follows: \nQ Now,    did    they    offer    you    light    duty    within    those \nrestrictions? \n \nA Yes, they did, but I told them my hand hurt so much – \n \nQ Just  slow  it  down.  They  did  offer  you  light  duty  within \nthose restrictions? \n\nBowdoin – H206137 \n \n-15- \n \nA Yes. \n \nQ Did you take it? \n \nA No. \n \nQ Why didn’t you take it? \n \nA Because  my  had  throbbed  continuously  so  I  couldn’t  even \nconcentrate on doing anything. \n \n On cross examination, the claimant was questioned about light duty as follows: \nQ Okay. And you told Mr. Ellig they offered you light duty? \n \nA Yes. \n \nQ And you just told them you weren’t going to do it? \n \nA I was in too much pain to do it. \n \nQ Well, did you accept the light duty? \n \nA I never accepted it, no. \n \nQ Did you try? \n \nA No, I didn’t try it. \n \nQ Okay. \n \nA I  didn’t  understand  why  they  would  want  me  there  in  so \nmuch pain. How could I concentrate on doing anything? \n \n The claimant’s pain level is reported in many of his medical records. I believe this to be a \npain  scale  of  0  to  10,  with  10  being  the  worst  pain.  On  July  11,  2022,  the  claimant  reported  a \npain  level  of  5,  on  July  21,  2022,  a  pain  level  of  8,  on  July  28,  2022, a  pain  level  of  4,  and  on \nAugust  11,  2022,  a  pain  level  of  0.  The  claimant  was  recommended  to  take  two  500  mg \nacetaminophen tablets every six hours as needed for pain on July 11, 2022. On July 21, 2022, the \n\nBowdoin – H206137 \n \n-16- \nclaimant was told to take Tylenol as needed for pain. On July 28, 2022, and August 11, 2022, no \npain medication for the claimant’s right hand was recommended. It should be noted that NSAIDs \nand muscle relaxers were prescribed or recommended to the claimant, but those appear to be for \na low back injury that was not considered in this matter.  \n A.C.A. §11-9-526 states: \nIf any injured employee  refuses  employment suitable to his or her \ncapacity  offered  to  or  procured  for  him  or  her,  he  or  she  shall  not \nbe  entitled  to  any  compensation  during  the  continuance  of  the \nrefusal,  unless  in  the  opinion  of  the  Workers’  Compensation \nCommission, the refusal is justifiable. \n \n In  the  present  matter,  the  claimant  did  not  accept  or  even  attempt  to  participate  in  the \nlight duty work offered by the respondent. Given the medical records regarding what appears to \nbe a straightforward laceration of the claimant’s right hand and pain levels described in medical \nrecords, I find the claimant refused  employment suitable to his capacity that was offered by the \nrespondent.  As  such,  the  claimant  is  not  entitled  to  temporary  total  disability  benefits  under \nA.C.A. §11-9-526. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nFebruary  27,  2023,  and  contained  in  a  Pre-hearing  Order  filed  February  28,  2023,  are  hereby \naccepted as fact. \n\nBowdoin – H206137 \n \n-17- \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained a \ncompensable injury to his right wrist on or about July 11, 2022. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  sustained  a \ncompensable injury to his right hand on or about July 11, 2022. \n 4. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto  medical  treatment  for  his  alleged  right  wrist  injury  as  he  has  failed  to  prove  that  it  is  a \ncompensable injury. \n 5.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he is  entitled  to \nreasonable necessary medical treatment for his compensable right hand injury. \n 6. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto  temporary  total  disability  benefits  from  July  12,  2022,  to  a  date  yet  to  be  determined,  as  the \nclaimant  is  barred  from  temporary  total  disability  benefits  as  he  has  refused  employment  under \nA.C.A. §11-9-526. \n 7. The claimant has failed to prove that his attorney is entitled to an attorney’s fee in this \nmatter  as  no  indemnity  benefits  have  been  awarded  as  required  by  the  Arkansas  Workers’ \nCompensation Act. \n 8.  The  request  to  determine  the  claimant’s  compensation  rates  is  moot  as  no  indemnity \nbenefits have been awarded in this matter. \n ORDER \nThe  respondent  shall  pay  for  the  reasonable  necessary  medical  treatment  regarding  the \nclaimant’s  compensable  right  hand  injury  which  occurred  on  or  about  July  11,  2022.  The \nrespondents  shall  also  pay  any  out-of-pocket  expenses  incurred  by  the  claimant  regarding  his \nreasonable necessary medical treatment for his compensable right hand injury. \n\nBowdoin – H206137 \n \n-18- \n All benefits herein awarded which have heretofore accrued are payable in a lump sum \nwithout discount. \n This award shall bear the maximum legal rate of interest until paid. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                             \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":30325,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H206137 FRANK BOWDOIN, Employee CLAIMANT OK FOODS, INC., Employer RESPONDENT OK FOODS, INC., Carrier RESPONDENT OPINION FILED JULY 18, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claimant represented...","outcome":"granted","outcomeKeywords":["granted:4","denied:4"],"injuryKeywords":["wrist","back","lumbar","strain"],"fetchedAt":"2026-05-19T23:05:18.746Z"},{"id":"alj-H109566-2023-07-18","awccNumber":"H109566","decisionDate":"2023-07-18","decisionYear":2023,"opinionType":"alj","claimantName":"Janice Kanzler","employerName":"Russellville Middle School","title":"KANZLER VS. RUSSELLVILLE MIDDLE SCHOOL AWCC# H109566 JULY 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//KANZLER_JANICE_H109566_20230718.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KANZLER_JANICE_H109566_20230718.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H109566 \n \nJANICE KANZLER, Employee      CLAIMANT \n \nRUSSELLVILLE MIDDLE SCHOOL, Employer   RESPONDENT \n \nAR SCHOOL BOARDS ASSOC WCT, Carrier/TPA   RESPONDENT \n \n \n OPINION FILED JULY 18, 2023  \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at the hearing. \n \nRespondent represented by, MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \n It  should  be  noted  that  this  matter  has  previously  been  before  the  Commission  on a \nMotion to Dismiss filed by the respondents on July 22, 2022, which resulted in an Opinion filed \nOctober 18, 2022, denying the respondents’ request to dismiss.  \n On  December  7,  2022,  the  claimant  requested  a  hearing,   and   after  a  prehearing \nconference  on  February  27,  2023,  a  hearing  was  scheduled  for  April  13,  2023.  On  March  16, \n2023,  the  claimant  contacted  my  office  stating  she  no  longer  wished  to  pursue  a  hearing,  but \ninstead,  wanted  to  request  a  change  of  physician.  The  file  was  reassigned  to  the  Medical  Cost \nContainment  Division  on  March  24,  2023.  On March  28,  2023,  claimant  was  informed  that  the \nphysician  she  wished  to  see  would  not  be  authorized  as  that  physician  could  not  treat  her \ncompensable  body  part.  The  claimant  then  contacted  the  respondents’  attorney  stating  she  no \nlonger wished to pursue her claim. \n\nKanzler – H109566 \n \n Thereafter,  on  March  30,  2023,  the  respondents  filed  a  second  Motion  to  Dismiss \nrequesting this claim be dismissed for lack of prosecution. A hearing was scheduled for June 22, \n22023, and notice of said hearing was sent to the claimant at her last known address by certified \nmail  on  May  16,  2023.  That  certified  mail  notice  was  returned  to  the  Commission  by  the  Post \nOffice with a notation “Return to Sender. Unclaimed. Unable to Forward.” \n After  my  review  of  respondents’  Motion  to  Dismiss,  the  claimant’s  lack  of  response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED.    \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":3045,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H109566 JANICE KANZLER, Employee CLAIMANT RUSSELLVILLE MIDDLE SCHOOL, Employer RESPONDENT AR SCHOOL BOARDS ASSOC WCT, Carrier/TPA RESPONDENT OPINION FILED JULY 18, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:05:20.859Z"},{"id":"alj-H110044-2023-07-18","awccNumber":"H110044","decisionDate":"2023-07-18","decisionYear":2023,"opinionType":"alj","claimantName":"Scott Metzger","employerName":"Winsupply, Inc","title":"METZGER VS. WINSUPPLY, INC. AWCC# H110044 JULY 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/METZGER_SCOTT_H110044_20230718.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"METZGER_SCOTT_H110044_20230718.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.  H110044 \n \nSCOTT METZGER, EMPLOYEE         CLAIMANT \n \nv. \n \nWINSUPPLY, INC. EMPLOYER              RESPONDENT \n \nSENTRY CASUALTY INSURANCE COMPANY, \nINSURANCE CARRIER                 RESPONDENT \n \nOPINION FILED JULY 18, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 23\nrd\n day of May, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant is represented by Mr. Gary Davis, Attorney-at-Law, Little Rock, Arkansas. \n \nRespondents  are  represented  by  Mr.  Jarrod  S.  Parrish,  Attorney-at-Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n  \n A hearing was conducted on the 23\nrd\n day of May, 2023, to determine the sole issue \nof additional medical treatment as recommended by Doctor Gary Frankowski.  A copy of \nthe  Prehearing  Order  dated  March 21,  2023, was  marked  “Commission  Exhibit  1” and \nmade part of the record without objection.  The Order provided the parties stipulated that \nthe  Arkansas  Workers’   Compensation had   jurisdiction  of  the   claim   and   that  an \nemployer/employee relationship existed on November 4, 2020, at which time the claimant \nsustained  compensable  injuries,  including  but  not  limited  to  his  neck  and  back.  The \nclaimant’s  average  weekly  wage  was  $1080.00  which  entitled  him  to  temporary  total \ndisability   and   permanent   partial   disability   in   the   amount   of   $711.00   /   $533.00, \nrespectively.  \n\nMETZGER – H110044 \n \n2 \n \n The  claimant’s  and  respondent’s  contentions were  set  out  in  their  respective \nresponses to the prehearing questionnaire and made part of the record without objection.  \nThe sole witness to testify was the claimant, Scott Metzger.  The claimant submitted one \nexhibit  without  objection,  which  consisted  of  one  hundred  thirty-four  (134)  pages  of \nmedical.  The   respondents   submitted   two   (2)   exhibits   without   objection,   with \n“Respondent’s Exhibit One” consisting of medical reports of Dr. Frankowski, consisting of \nfive  (5)  pages,  and “Respondent’s  Exhibit  Two”  consisting  of  three  (3)  pages  which \nincluded  a  Form  AR-2  and  correspondence  from  Sentry  Insurance  addressed  to  Dr. \nFrankowski.  From a review of the record as a whole, to include medical reports and other \nmatters properly before the Commission, and having had an opportunity to observe the \ntestimony and demeanor of the witness, the following findings of fact and conclusions of \nlaw are made in accordance with Ark. Code Ann. §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That  an  employer/employee  relationship  existed  on  November  4,  2020,  the \ndate that the claimant suffered a compensable injury, including but not limited \nto his neck and back. \n   \n3.  That the claimant’s average weekly wage was $1080.00, which entitled him to \ntemporary  total  disability  and  permanent  partial  disability  in  the  amount  of \n$711.00 / $533.00, respectively. \n \n4.  That  the  claimant  has  failed  to  satisfy  the  required  burden  of  proof, by  a \npreponderance of  the credible  evidence,  to prove  that  the medical  treatment \nrecommended  by  Dr.  Frankowski is  causally  related  to  and  reasonably \nnecessary for his work-related injuries. \n    \n5.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \n \n\nMETZGER – H110044 \n \n3 \n \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The claimant, Scott Metzger, testified that he was fifty-nine (59) years old at the \ntime of the hearing; was born on April 30, 1964; and graduated the 12\nth\n grade.  He was \nworking for the respondent when he was involved in a motor vehicle accident and   was \nstill with the company.  The accident occurred when another vehicle hit a concrete barrier \non the interstate and lost its load which consisted of a large pallet of energy drinks that \nthen  skidded  across  the  highway.    The  claimant  was  unable  to  avoid  the  pallet.  The \naccident totaled the truck the claimant was driving, and he ultimately was treated by Dr. \nPaulus, who provided medications, with the claimant receiving injections to his neck and \nback.  The claimant received surgery to his neck on December 17, 2021. His treatment \nwas provided by the workers’ compensation insurance carrier.  He suffered pain in his \nlower  and  middle  back, and  his  neck.    He  also  stated  he  suffered  from  shooting  pain \nthrough  his  arms  and  down  his  back,  and  was  still  suffering  from, “shooting  pains \nconstantly, the sciatic is going down my legs every day, even with the medications.”  The \nclaimant stated that he had difficulty turning his head from side to side and from looking \nup,  with  pain  radiating  down  both  arms.  (Tr.  pp.  5-8)   The  claimant  was  still  taking \nmedications for his back at the time of the hearing. (Tr. p. 9)   After surgery, the claimant \ntestified that his neck was better with no more numbness and, “no more really hurting.”  \nIn regard to his back, he still had, “sharp, sharp pain still today.”  He went on to state that \nhe suffered sciatica every day which is sometimes left and sometimes right and is, “very, \nvery painful, sharp, sharp.”  (Tr. p. 10)  The claimant had received injections in his back \nfrom February 12, 2021, up until October or November when he became aware that the \n“insurance people” were not going to pay for them anymore.  Dr. Frankowsi was trying to \n\nMETZGER – H110044 \n \n4 \n \nschedule a nerve blocking test at the time and it was denied.  He then used his health \ninsurance for the test, and a nerve abrasion was then set up for June 16\nth\n, for cauterizing \nthe nerves. (Tr. p.11)  This had been previously performed on the middle of his back by \nDr. Paulus.  He denied any other accidents but did admit that he had tripped and “chipped \nthe eyeball.” (Tr. p.12)  The claimant stated his current symptoms consisted of lower back \npain and that he takes hydrocodone twice a day, which doesn’t stop the pain, but does \nknock the sharpness off.  He also takes gabapentin twice a day, plus tizanidine, a muscle \nrelaxer, once a day.  These medications were prescribed by Dr. Frankowski. (Tr. p.16)  \nThe claimant had a medical appointment on June 16\nth \nand he last saw Dr. Frankowski on \nApril 21\nst\n, he thought, when he received the nerve block. (Tr. p.17) \n Under cross-examination, the claimant admitted that he currently was working from \n7:00  a.m.  to  4:00  p.m.  for  the  respondent  at  the  same  pay  that  he  made  prior  to  the \naccident, and that as far as he knew he would be able to continue long-term.  He also \nadmitted  to  performing  basic  household  chores,  which  included  cutting  the  grass  and \nmaintaining his yard.  He admitted hunting with a crossbow on a stand which was how he \ninjured his orbital when he fell out of the stand onto the ground.  He admitted that while \nhunting  from a  deer  stand,  he  had  to  climb up  a  ladder  and  also admitted  fishing.   He \nadmitted to receiving three (3) branch block injections, and that the last two (2) only gave \nhim six (6) to seven (7) hours of relief before he was back to his baseline, but the relief \nhe received was  tremendous. (Tr. pp.18-20)  The claimant was specifically questioned \nabout page 105 of his medical exhibit packet and which provided that he had received an \nablation at L4-5 and he denied receiving the ablation of the lower back. (Tr. p. 21)  He \n\nMETZGER – H110044 \n \n5 \n \nwent  on  to  state  that  if  Dr.  Pauls’  records  provided  he  had  received  an  ablation  of  the \nlower back, “I have to disagree with it.” \n “Claimant’s Exhibit   One”,   included  a   report   from   Ortho   Arkansas   and   Dr. \nOnyekwelu, dated March 16, 2023,  which provided that the claimant had reached MMI \nwith a ten percent (10%) impairment rating, with no restrictions for work with respect to \nthe cervical spine. (Cl. Ex. 1, PP. 1-2)  A second document from Ortho Arkansas dated \nOctober 28, 2022, provided that Dr. Frankowski had been asked to give an opinion on \nhow the  claimant’s  injuries  could  or  could  not  relate  to  an  injury  that  he  sustained  in \nNovember of 2020.  Dr. Frankowski opined as follows: \n“And I  was  asked  to  give  his  statement  whether  this  was  felt  to be  linked to  the \ninjury  from  the  accident  based  upon  patient’s  MRI  findings.    I  cannot  with \nreasonable medical certainty state that this is a causation and related to the injury \nresulting in the patient’s back pain.  This could represent a condition resulting from \ndegenerative changes but with an acute worsening after the accident but it is very \ndifficult  to  delineate  based  on  MRI  findings.    And  again  the  patient  initially \npresented to January 2021 and my first visit in regards to the patient’s back pain \nand discussion of his back pain took place on 9/1/2022.” (Cl. Ex. 1, P. 3) \n \nOn  October  7,  2022,  the  procedure  note  provided  the  claimant  had  received a \nbilateral  L4-L5  diagnostic  medial  branch  block.    The  claimant  had  presented with \nsymptomatic  lumbar  spondylosis.  (Cl.Ex.1,  PP.  4-7)  The  claimant  had  previously \npresented  to  Dr.  Frankowski  on  October  4,  2022,  and  also  September  1, 2022.    The \nOctober visit referred to lumbar facet arthropathy  with a right L4-5 level facet cyst and \nthat  the  claimant  had  received  radiofrequency  neurotomy  for  the  innervation  of  the \nbilateral L4-5 facets. The claimant was also diagnosed with lumbar spondylosis.  (Cl. Ex. \n1, PP. 8-14)  The procedure note by Dr. Frankowski dated July 29, 2022,  provided for \nsymptomatic lumbar spondylosis and the claimant was offered a facet rhizotomy. (Cl. Ex \n1, PP. 15-16)  The claimant earlier presented to Dr. Frankowski on July 11, 2022.  This \n\nMETZGER – H110044 \n \n6 \n \nreport also referred to lumbar spondylosis with facet arthropathy at L4-L5.   (Cl. Ex. 1, \nPP. 17-25) \nThe claimant had previously presented to Dr. Cayne of Ortho Arkansas on June \n14, 2022, with low back and neck pain. The report provided he was following-up due to \nthe diagnostic medial branch blocks for the innervation of the bilateral L4-L5 and L5-S1.  \nThe records stated the patient had lumbar radiculopathy and received epidural steroid \ninjections  and  a  diagnostic  medial  branch  block.  (Cl.Ex.1,  PP. 26-34)  A  cervical  MRI \ndated June 14, 2022, provided for mild to moderate spinal canal stenosis at C5-C6 and \nC6-C7.  The report also provided for moderate to severe foraminal stenosis bilaterally at \nC5-C6, severe right at C6-C7, moderate severe left at C6-C7, and mild to moderate right \nat  T2-T3.    The  report  also  provided  there  was a  possible  degenerative  signal  versus \npost-op  change,  or  low-grade  bony  stress  at  the  C6-C7  pedicles  bilaterally.    (Cl.Ex.1, \nPP.  35)  Dr.  Cayne  had  previously  performed  an  electrodiagnostic  study  on  June  14, \n2022, which provided there was electrodiagnostic evidence of a carpal tunnel syndrome \nand  ulnar  neuropathy,  generalized  neuropathy,  focal  nerve  entrapment,  or  cervical \nradiculopathy in the bilateral upper limbs. (Cl.Ex.1, PP. 36-37) \nThe claimant was seen by Dr. Frankowski on May 17, 2022.  The report provided \nthe  claimant  had  been  undergoing  bilateral  L4-5  transforaminal  epidural  steroid \ninjections and  also provided  that the claimant had  lumbar radiculopathy. (Cl.Ex.1, PP. \n44-48)  The claimant had previously presented to Dr. Onyekwelu on May 10, 2022, who \nprovided  that  there  was  a  concern  for  a  cubital  tunnel  syndrome  versus  an  acute \nradiculopathy  at  C8.  (Cl.Ex.1,  PP.  38-43)    The  claimant  had  earlier  been  seen  by  Dr. \nFrankowski on April 18, 2022, for an epidural steroid injection. (Cl.Ex.1, P. 49)  On April \n\nMETZGER – H110044 \n \n7 \n \n1, 2022, the claimant was seen by Dr. Frankowski, who provided a lumbar radiculopathy. \n(Cl.Ex.1,  PP.  50-54)    Dr.  Frankowski  had  treated  the  claimant  with  a  bilateral \ntransforaminal epidural steroid injection at the L5-S1 on March 11, 2022. (Cl.Ex.1, P. 55) \nThe  claimant  was  seen  by  Dr.  Onyekwelu  on  February  22,  2022.    The  report \nprovided that the claimant had presented due to low-back pain. Spinal stenosis of the \nlumbar region was noted.  The report also provided for a history of a cervical spine fusion. \n(Cl.Ex.1, PP. 56-60)  An MRI of February 17, 2022, provided for severe facet arthropathy \nat L4-L5 with bilateral facet diffusions and subchondral marrow edema, likely reflecting \nacute  reactive/degenerative  changes.  (Cl.Ex.1,  P.  61)      Prior  to  the  MRI,  the  claimant \nhad been seen by Dr. Onyekwelu on February 1, 2022.  The report provided the claimant \nwanted to discuss his low-back and neck pain.  It also provided that they had recently \nperformed  an  anterior  cervical  decompression  fusion  surgery  at  the  C5-C6  and \nthe C6-C7 with interval improvement with radicular arm pain. (Cl.Ex.1, PP. 62-67)  The \nclaimant had been seen by Dr. Onyekwelu on January 4, 2022, following the surgery.  \nThe  report  provided  there  was  full  range  of  motion  of  the  cervical  spine  with  no \ntenderness,  and  there  was  also  full  range  of  motion  of  the  lumbar  and  thoracic  spine \nwithout pain and tenderness.  The shoulders also had a full range of motion. (Cl.Ex.1, \nPP. 68-72)  Surgery had been performed on December 17, 2022, by Dr. Onyekwelu, for \ncervical  stenosis  at  the  C5-6  and  C6-7,  with  C6-C7  left  radiculopathy.    An  anterior \ncervical   decompression,   discectomy,   and   fusion   at   the   C5-C6   and   C6-C7   was \nperformed. (Cl.Ex.1, PP. 73-76)  The records provided the claimant first presented to Dr. \nOnyekwelu on August 31, 2021, with a complaint of neck pain which radiated down the \nleft side of his neck into his shoulder and left arm. (Cl.Ex.1, PP. 77-81)      \n\nMETZGER – H110044 \n \n8 \n \n  The records also provided the claimant initially presented to Stephen Paulus on \nJanuary 8, 2021, suffering from neck pain with degeneration of the cervical intervertebral \ndiscs  at  C5-C6  and  C6-C7,  and  also  with  low  back  pain.    (Cl.Ex.1,  PP.  128-132)    The \ninitial MRI of record dated January 26, 2021, provided the claimant suffered moderate to \nadvanced L4-L5 facet arthropathy with subtle degenerative anterolisthesis of the L4 and \nL5, along with L3-L4 and L4-L5 shallow disc bulges, without significant canal stenosis or \nno significant neural foraminal narrowing, and no focal disc protrusion or extrusion and \nno acute fracture. (Cl.Ex.1, PP. 126-127)  The claimant continued to present to Dr. Paulus \nfrom January 26, 2021, through August 27, 2021.  Dr. Paulus provided for degeneration \nof  the  cervical  intervertebral  disc  with  spinal  stenosis  of  the  cervical  region  and  also \nlumbosacral  spondylosis  without  myelopathy.    The  report  also  provided  for  a  possible \nreferral to Dr. Frankowski for an evaluation. (Cl.Ex.1, PP. 82-125)  Although much of the \ntreatment  by  Dr.  Paulus  related  to  the  cervical  spine,  on  May  21,  2021,  Dr.  Paulus \nperformed   a    bilateral    medial    branch  radio  frequency  neurotomy  at  L3  and  L4. \n(Cl.Ex.1,PP. 104-106) \nThe  documents  of “Respondents  Exhibit  One”  were  reviewed  as  part  of  the \nclaimant’s  documents.    “Respondents  Exhibit Two”  consisted  of an  AR–2  Form  and  a \nletter from the workers’ compensation carrier dated October 14, 2022, and addressed to \nDr.  Frank  Frankowski,  requesting  that  he  offer his  opinion  in  regard  to  the  claimant’s \ninjuries. (Resp.Ex.2, P.2) \n      DISCUSSION AND ADJUDICATION OF ISSUES \n \nIn the present matter, the parties stipulated the claimant sustained compensable \ninjuries including but not limited to his neck and back, on November 4, 2020.  The claimant \n\nMETZGER – H110044 \n \n9 \n \nis therefore not required to establish “objective medical findings” in order to prove that he \nis entitled to additional benefits. Chamber Door Indus., Inc. v. Graham, 59 Ark. App. 224, \n956 S.W.2d 196 (1997) \nHowever, when assessing whether medical treatment is reasonably necessary for \nthe treatment of a compensable injury, we must analyze the proposed procedure and the \ncondition  that  it  is  sought  to  remedy.   Deborah  Jones  v.  Seba,  Inc., Full  Workers’ \nCompensation filed December 13, 1989. (Claim No. D512553).  The respondent is only \nresponsible  for  medical  services  which  are  causally  related  to  the  compensable  injury.  \nTreatments  to  reduce  or  alleviate  symptoms  resulting  from  a  compensable  injury,  to \nmaintain the level of healing achieved, or to prevent further deterioration of the damage \nproduced by the compensable injury are considered reasonable medical services. Foster \nv. Kann Enterprises, 2009 Ark. App. 746, 350 S.W.2d 796 (2009).  Liability for additional \nmedical  treatment  may  extend  beyond  the  treatment  healing  period as  long  as  the \ntreatment is geared toward management of the compensable injury. Patchell v. Wal-Mart \nStores, Inc., 86 Ark. App. 230, 180 S.W.3d 31 (2004). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe   Arkansas   Workers’   Compensation   Act   and   must   sustain   that   burden   by   a \npreponderance of the evidence. Dalton v. Allen Engineering Co., 66 Ark. App 260, 635 \nS.W.2d 543.  Injured employees have the burden of proving, by a preponderance of the \nevidence,  that  the  medical  treatment  is  reasonably  necessary  for  the  treatment  of the \ncompensable injury. Owens Plating Co. v. Graham, 102 Ark. App 299, 284 S.W. 3d 537 \n(2008).  What constitutes reasonable and necessary treatment is a question of fact for \n\nMETZGER – H110044 \n \n10 \n \nthe  Commission.   Anaya v. Newberry’s 3N Mill,  102  Ark.  App.  119,  282  S.W.3d  269 \n(2008).  \nThe claimant was involved in a motor vehicle accident on November 4, 2020, when \na vehicle hit a concrete barrier on the interstate and a large pallet of energy drinks broke \nloose, came across the interstate, and the claimant hit the pallet with the vehicle he was \ndriving,  totaling  his  vehicle.  The  claimant  testified  that  following  the  accident,  he  was \nsuffering from lower and middle back pain, with pain shooting down his arms and legs.  \nThe claim was accepted as compensable and the claimant was treated by Dr. Paulus with \nthe  original  treatment  of  record  being  January  8,  2021.    The  report  provided  that  the \nclaimant  was  suffering  from  neck  pain  with  degeneration  of  the  cervical  intervertebral \ndiscs at C5-C6 and C6-C7 along with low back pain.  The MRI dated January 26, 2021, \nprovided that the claimant suffered from moderate to advanced L4-L5 facet arthropathy \nwith  subtle  degenerative  anterolisthesis  of  the  L4  and  L5,  along  with  L3-L4 and  L4-L5 \nshallow  disc  bulges  without  significant  canal  stenosis  and  with  no  significant  neural \nforaminal  narrowing and  with  no  focal  disc protrusion  and no acute  fracture.   Although \nmuch of the treatment of Dr. Paulus involved the cervical spine, he performed a bilateral \nmedial branch radio frequency neurotomy at L3 and L4 on May 21, 2021.  The claimant \nappeared to treat with Dr. Paulus up until August 27, 2021, with that report providing for \ndegeneration of the cervical intervertebral disc with spinal stenosis of the cervical region \nand lumbosacral spondylosis without myelopathy.  The report also provided for a possible \nreferral to Dr. Frankowski for an evaluation.   \nThe claimant received an anterior cervical decompression, diskectomy, and fusion \nat  C5-C6  and  C6-C7  by  Dr.  Onyekvwelu  on  December  18,  2021,  which  apparently \n\nMETZGER – H110044 \n \n11 \n \nresolved  the  issues  involving  the  claimant’s  cervical  spine.   A  follow-up  by  Dr. \nOnyekvwelu on January 4, 2022, provided there was a full range of motion of the cervical \nspine  without  pain  or  tenderness.    The  report  also  provided  there  was  a  full  range  of \nmotion of the lumbar thoracic spine without pain and tenderness.  The claimant was then \ntreated by Dr. Frankowski for lumbar facet arthropathy along with a L4-5 level cyst and \nDr. Frankowski offered a facet rhisotomy. \nThe insurance carrier contacted Dr. Frankowski by a letter dated October 14, 2022, \nrequesting that he opine in regard to the claimant’s condition involving his lower back.  He \nresponded two (2) weeks later with a letter that provided he could not with a reasonable \ndegree of medical certainty determine that the motor vehicle accident was the cause of \nthe  claimant’s  resulting  back  pain.    “This  could  represent  a  condition  resulting  from \ndegenerative changes but with an acute worsening after the accident, but it is very difficult \nto delineate based on MRI findings.”              \nQuestions  concerning  the  credibility  of  witnesses  and  the  weight  to  be  given  to \ntheir testimony are within the exclusive province of the Commission.  Powers v. City of \nFayetteville, 97 Ark. App. 251, 248 S.W.3d 516 (2007).  Where there are contradictions \nin the evidence, it is within the Commission’s province to reconcile conflicting evidence \nand to determine the true facts.  Cedar Chem. Co. v. Knight, 99 Ark. App. 162, 258 S.W.3d \n394 (2007).  The Commission has authority to accept or reject medical opinions and to \ndetermine its medical soundness and probative force.  Oak Grove Lumber Co. v. Highfill, \n62 Ark. App. 42, 968 S.W.2d 637 (1998).  However, the Commission may not arbitrarily \ndisregard the testimony of any witness.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. \n230, 184 S.W.3d 31 (2004). \n\nMETZGER – H110044 \n \n12 \n \nIt  is  also  noted  that  in  workers’  compensation  law,  the  employer  takes  the \nemployee  as  he  finds  him  and  employment  circumstances  that  aggravate  pre-existing \nconditions are compensable. Heritage Baptist Temple v. Robinson, 82 Ark. App. 460, 120 \nS.W. 3d 150 (2003).  The parties agreed that the claimant suffered a compensable injury \nto his back and neck from a work-related injury on November 4, 2020.  Various imaging \nmodalities provided the claimant suffered from arthritic issues as do most people who are \napproximately sixty (60) years of age.  The testimony of the claimant does not resolve the \nissue of the additional treatment recommended by Dr. Frankowski, nor does the opinion \nissued  by  Dr.  Frankowski,  the  treating  physician,  in  regard  to  the  additional  treatment \nwhich he proposed being work-related.  Speculation and conjecture cannot substitute for \ncredible evidence.  Liaromatis v. Baxter county Regional Hospital, 95 Ark App. 296, 236 \nS.W.3d. 52 (2006).  \nAfter reviewing all of the evidence, without giving the benefit of the doubt to either \nparty, there is no alternative but to find that the claimant has failed to satisfy the required \nburden of proof to prove, by a preponderance of the credible evidence, that the medical \ntreatment  he  requested,  specifically  additional  treatment  by  Dr.  Frankowski is  causally \nrelated  and  reasonably  necessary  for  the  treatment  of  the  compensable  work-related \nback and neck injury.  \n IT IS SO ORDERED. \n  \n    \n      ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":23603,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H110044 SCOTT METZGER, EMPLOYEE CLAIMANT v. WINSUPPLY, INC. EMPLOYER RESPONDENT SENTRY CASUALTY INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT OPINION FILED JULY 18, 2023 Hearing before Administrative Law Judge, James D. Kennedy, on the 23 rd day of May, 2...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["neck","back","cervical","lumbar","carpal tunnel","thoracic","shoulder","fracture"],"fetchedAt":"2026-05-19T23:05:22.906Z"},{"id":"alj-H109610-2023-07-18","awccNumber":"H109610","decisionDate":"2023-07-18","decisionYear":2023,"opinionType":"alj","claimantName":"Candace Williams","employerName":"Prysmian Group","title":"WILLIAMS VS. PRYSMIAN GROUP AWCC# H109610 JULY 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Williams_Candace_H109610_20230718.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Williams_Candace_H109610_20230718.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109610 \n \n \nCANDACE M. WILLIAMS, EMPLOYEE CLAIMANT \n \nPRYSMIAN GROUP, \n EMPLOYER RESPONDENT \n \nTRAVELERS INDEMN. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JULY 18, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on July 14, 2023, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Ms. Amy C. Markham, Attorney at Law, Jonesboro, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  July  14,  2023,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    At \nRespondents’ request, the Commission’s file on the claim has been incorporated \nherein in its entirety by reference. \n The record reveals the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed on  December  14,  2021, \nClaimant purportedly injured her ankle at work on March 22, 2021.  According to \n\nWILLIAMS – H109610 \n2 \n \nthe Form AR-2 that was filed on December 15, 2022, Respondents accepted the \nclaim as a medical-only one and paid benefits pursuant thereto. \n Claimant  filed  a  Form  AR-C on December  9,  2021,  asking  for  temporary \ntotal disability benefits and an attorney’s fee.  Therein, she alleged that when she \ninjured her ankle, she sustained “some ligament damage.”  In correspondence to \nthe   Commission   on   January   10,   2022,   Respondents’   counsel   entered   her \nappearance and represented that her clients’ position that had been expressed in \nthe Form AR-2 had not changed. \nOn January  7,  2022,  Respondents  propounded  discovery  to  Claimant.  \nThis  discovery,  in  the  form  of  interrogatories  and  request  for  production  of \ndocuments,  went  unanswered.    On  May  12,  2022,  Respondents  moved  for  an \norder  compelling  Claimant  to  respond  to  the  discovery.    On  June  1,  2022, then-\nAdministrative  Law  Judge  Terry  Don  Lucy  entered  this  order.    However,  when \nClaimant  failed  to  comply  as  directed,  Judge  Lucy  returned  the  file  to  the \nCommission’s general files. \n The record reflects that no further action took place on this claim until April \n14,  2023,  when  Respondents  filed  the  instant  Motion  to  Dismiss.    Therein,  they \nargued  that  dismissal  of  the  claim  was  warranted  under  AWCC  R.  099.13  and \nArk. Code Ann. § 11-9-702(a)(4)\n1\n (Repl. 2012), and alleged that Claimant has not \nmade a bona fide hearing request to the Commission within the past six months.  \n \n \n1\nSince  Respondents  accepted  this  claim  and  paid  medical  benefits,  the \napplicable provision is § 11-9-702(d). \n\nWILLIAMS – H109610 \n3 \n \nThe  file  was  assigned  to  Administrative  Law  Judge  Steven  Porch  on  April  17, \n2023.  On April 27, 2023, his office wrote Claimant at the address she supplied on \nthe Form AR-C, asking for a response to the motion within 20 days.  This certified \nletter  was  claimed  by “Lesley Williams”  on May  1,  2023;  and the first-class  letter \nwas not returned.  Nonetheless, no response from Claimant was forthcoming.  On \nMay  24,  2023,  a  hearing  on  Respondents’  motion  was  scheduled  for July  14, \n2023, at 11:00 a.m. at the Craighead County Courthouse in Jonesboro, Arkansas.  \nThe Notice of Hearing was sent to Claimant by certified and first-class mail to the \nsame address as before.   In this instance,  Claimant  signed for the certified letter \non  May  27,  2023.    As  before,  the  first-class  letter  was  not  returned.    Thus,  the \nevidence preponderates that the notice reached its proper destination. \n The   hearing   proceeded   as   scheduled  on   July   14,  2023,  before   the \nundersigned.  Again, Claimant failed to appear at the hearing.  But Respondents \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthorities as well as AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n\nWILLIAMS – H109610 \n4 \n \n2. The parties were provided reasonable notice of the  Motion to Dismiss and \nof the hearing thereon. \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that \nClaimant has failed to prosecute her claim. \n4. Respondents  have  proven  by  a  preponderance  of  the  evidence  that  this \nclaim should be dismissed under AWCC R. 099.13. \n5. The Motion to Dismiss is hereby granted. \n6. This claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove  by  a  preponderance  of  the  evidence  that  this  claim  should  be  dismissed.  \nThis  standard  means  the  evidence  having  greater  weight  or  convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \n\nWILLIAMS – H109610 \n5 \n \nClaimant has failed to pursue her claim because  she has taken no further action \nin pursuit of it (including appearing at the July 14, 2023, hearing to argue against \nits  dismissal)  since  the  filing  of  her  Form  AR-C  on December  9,  2021.    Thus, \ndismissal  is  warranted  under  Rule  13.    Respondents  have  met  their  burden  of \nproof  in  this  matter.    Because  of  this  finding,  it  is  unnecessary  to  address  the \napplication of § 11-9-702. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v.  Strong,  75  Ark.  249, \n629 S.W.2d 284 (1982)).  Based on the foregoing, I find that the dismissal of this \nclaim should be and hereby is entered without prejudice.\n2\n \nIV.  CONCLUSION \n In  accordance  with  the  Findings  of  Fact  and  Conclusions  of  Law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nWILLIAMS – H109610 \n6 \n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7881,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H109610 CANDACE M. WILLIAMS, EMPLOYEE CLAIMANT PRYSMIAN GROUP, EMPLOYER RESPONDENT TRAVELERS INDEMN. CO., CARRIER RESPONDENT OPINION FILED JULY 18, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 14, 2023, in Jonesboro, Craighead ...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:1"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T23:05:25.030Z"},{"id":"full_commission-H201972-2023-07-13","awccNumber":"H201972","decisionDate":"2023-07-13","decisionYear":2023,"opinionType":"full_commission","claimantName":"James Beauchamp","employerName":"Conagra Foods Packaged Foods, LLC","title":"BEAUCHAMP VS. CONAGRA FOODS PACKAGED FOODS, LLC AWCC# H201972 JULY 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Beauchamp_James_H201972_20230713.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Beauchamp_James_H201972_20230713.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H201972 \n \nJAMES BEAUCHAMP, \nEMPLOYEE \n \nCLAIMANT \nCONAGRA FOODS PACKAGED FOODS, LLC,  \nEMPLOYER \n \nRESPONDENT \nBROADSPIRE SERVICES, INC., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JULY 13, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nJanuary 23, 2023.  The administrative law judge found that the claimant \nproved he sustained a compensable injury to his right hip and pelvis.  After \nreviewing the entire record de novo, the Full Commission finds that the \nclaimant’s right hip and pelvis injury was a natural consequence of the \ncompensable left hip injury.  We find that the claimant proved he was \nentitled to temporary total disability benefits beginning February 15, 2022 \nuntil a date yet to be determined.     \nI.  HISTORY \n\nBEAUCHAMP - H201972   2\n  \n \n \n The record indicates that James Alan Beauchamp, now age 62, \nbecame employed with the respondents, Conagra, in 1997.  Mr. \nBeauchamp testified that he was hired to be a “floater” for the respondents \nbut had been an “operator” for 15-20 years.  The claimant testified that the \n“operator” position entailed several work duties which included use of a \n“power jack.”         \nThe parties stipulated that the employee-employer-carrier \nrelationship existed on January 4, 2022.  The claimant testified on direct \nexamination: \n Q.  So what happened on January 4\nth\n of 2022? \nA.  I was taking the trash out and like I don’t want to get into \ntoo much detail, but like the watermelons that you see at \nSam’s Club, them boxes like that.  There is boxes like that \nand you know the straps around them, they had broke the box \ndown and one of the straps was hanging out and I tripped \nover one of them straps and fell down on my left hip and knee \nand my hard – I mean on concrete.   \n \n The respondents’ attorney cross-examined the claimant: \nQ.  Now, the mechanics of this fall at ConAgra, we understand \nyou tripped on one of the bands that goes on one of these big \nboxes? \nA.  Yes, sir. \nQ.  You fell to your left on your left hip.  Correct? \nA.  Yes, sir. \nQ.  Nothing hit your right hip.  Correct? \nA.  No.   \n \n According to the record, the claimant treated at Arkansas \nOccupational Medicine Services PA on January 4, 2022: \n\nBEAUCHAMP - H201972   3\n  \n \n \nJames Beauchamp is a 61 year-old male, and employee of \nConAgra/Pinnacle Foods.... \nEmployer states patient fell injuring his left hip.... \nPatient states that he was walking and tripped on a strap \ncausing him to fall, landing on his left knee and left hip.  \nPatient states that his left knee is scrapped (sic), but left hip is \nhurting.... \nJames’s primary problem is pain located in the left hip.  He \ndescribes it as throbbing, stiff, aching, sharp.  He considers it \nto be intense.  The problem began on 1/4/21....He was injured \ntoday while at work.... \nIMAGING STUDIES \nXRAY – Left Hip:  Normal.  Acute Findings – Absent.  No \nFracture Seen.   \n \n The diagnosis of J. Daniel Nicholas, PA-C on January 4, 2022 was \n“1.  Pain in left hip.”  J. Daniel Nicholas planned conservative treatment and \nstated, “James’s recommended Work Status is Restricted Duty....Allow \nsitting work as needed.” \n The claimant testified on direct examination: \n  Q.  Did you return to work that day? \nA.  I know I – I don’t know if I worked.  I think they probably \nsent me home because I was pretty hurt.   \nQ.  Okay. \nA.  And then I laid out the next day.   \nQ.  So what were your symptoms? \nA.  Basically, the bruise on my leg and my knee was scraped \nand basically that is the way it was.   \n \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on January 6, 2022.  The ACCIDENT INFORMATION section of \nthe Form AR-N indicated that the claimant injured his “Left knee and hip.”  It \nwas reported on the Form AR-N, “Employee was moving a pallet of \n\nBEAUCHAMP - H201972   4\n  \n \n \ncardboard boxes to the trash dock.  He stopped to adjust the boxes and \nupon returning to the jack controls, got his foot tangler (sic) in a piece of \nloose strapping causing him to fall.”     \n J. Daniel Nicholas’ diagnosis on January 11, 2022 was “1.  Pain in \nleft hip....James’s recommended work status is Restricted Duty.  Return to \nwork plan discussed with patient and communicated to the \nemployer....Avoid weightbearing left leg.”   \n J. Daniel Nicholas continued to follow up with the claimant for left hip \npain.   \n A “Left lower extremity venous duplex” was carried out on January \n24, 2022 with the impression, “Negative for left leg deep vein thrombosis.  \nSubcutaneous edema of the left lower leg.”   \n The respondents’ attorney cross-examined the claimant: \nQ.  So the issue that is presented today has been framed as \nwhether you suffered a compensable right hip injury on \nJanuary 4, 2022.  Do you understand that? \nA.  Yes. \nQ.  You agree you did not experience any right hip pain or \nright hip discomfort for nearly three weeks after January 4, \n2022? \nA.  After the bruising had gone away from my left hip is when I \nstarted feeling pain all the way across. \nQ.  And that was approximately three weeks after January \n4\nth\n? \nA.  I would say.   \n \n The claimant began treatment appointments at ApexNetwork \nPhysical Therapy on January 27, 2022.  A physical therapist diagnosed “1.  \n\nBEAUCHAMP - H201972   5\n  \n \n \nContusion of right hip, initial encounter.  2.  Right Hip Pain.”  It was \nreported, “James states that his feet became caught in some pallet \nstrapping causing him to fall, hitting his left knee and left hip on the \nfloor....Mr. Beauchamp demonstrates signs consistent with a hip contusion \nand trochanteric bursitis which impairs his gait, mobility and ability to work \nand sleep.”   \n A physical therapist’s diagnosis on February 1, 2022 was “1.  \nContusion of right hip, initial encounter.  2.  Right Hip Pain.  3.  Low back \npain.”  It was noted, “James states that he was really sore on Sunday and \n[it’s] the right hip hurting today, along with the middle of the low back.  He \ntells me that the left hip is doing ‘fine.’”   \n The claimant followed up with J. Daniel Nicholas on February 8, \n2022:  “Patient states his left hip is doing a little better, but he has been \nhaving severe pain in his right hip....James’s primary problem is pain \nlocated in the left hip....James’s secondary problem is pain located in the \nright hip....The problem began on 1/4/2022....James has significant \nimprovement in his left hip.  He has developed severe right hip pain with no \nspecific injury.”   \n J. Daniel Nicholas’ diagnosis on February 8, 2022 was “1.  Pain in \nleft hip.  2.  Right Hip Pain....The cause of his right hip pain is unclear.  The \nonly way it could be related to his original injury is if it was caused by \n\nBEAUCHAMP - H201972   6\n  \n \n \novercompensation when using crutches for his left leg.”  Mr. Nicholas \nrecommended a Work Status of “Restricted Duty.  Return to work plan \ndiscussed with patient and communicated to the employer....No \nweightbearing with right leg.” \n The claimant treated at MANA Family Medicine on February 9, 2022:  \n“1.  Pain in pelvis ... Acute, Fell on his L at work and was doing well until he \nstarted PT.  Now with severe pain in the R pelvis possibly at the sacrial (sic) \niliac joint.  Patient really needs a pelvic xray.”  Dr. Joseph O’Connell \nreported, “Fell at work and bruised the left hip, now right hip also hurts \nreally bad.  Can walk on left hip, but not right.  Walking is almost non-\nexistent and extremely painful for patient.  The pain is worse instead of \ngetting better – in even more pain after completing PT exercises.  Getting \nTENS unit in the back.” \n The respondents’ attorney cross-examined the claimant: \nQ.  So as far as return-to-work efforts, you told me in your \ndepo you worked up through February 12\nth\n.  Is that right? \nA.  That sounds right.   \nQ.  And then that is when you went back to a doctor and said \nyou were taken off work.  Correct? \nA.  They told me not to come back.   \n \n Dr. Mark Allard examined the claimant on or about February 15, \n2022: \nPt here today WC injury (fall) on 01/04/2022.  Pt was taking \nout some boxes to the trash, and tripped over a plastic strip.  \nPt fell directly on his left side.  Pt was seen @ the \n\nBEAUCHAMP - H201972   7\n  \n \n \noccupational clinic, and x-rays were taken, and they were \nnegative for a fx.  Pt was put on crutches, and sent to physical \ntherapy.   \nPt reports within a couple of wks he was feeling much better, \nand was down to only using 1 crutch.  However, he had a visit \nto therapy on the 22\nnd\n, and was given a HEP, and completed \nall the exercises, went shopping with his wife and 3 yr old \ngrandson, and by the next day was unable to walk, and had \npain on the right side.  Pt c/o today of right buttock/lower \nlumbar pain.  Pt describes the pain as a sharp stabbing \npain.... \n61-year-old man injured his left hip and thigh about 6 weeks \nago at work.  He tripped over something and landed hard on \nhis left side.  He saw the providers at the occupational \nmedicine clinic [and] got some physical therapy and was \nmaking progress.  Bruising and swelling were resolving and \nhe was getting around better.  They gave him some home \nexercises to do 2 weeks ago.  Apparently there was a whole \nbunch of exercises and he did all of them that day.  Then he \nwent to the mall and went shopping with his wife and his \ngrandson and that evening he was miserable and has stayed \nmiserable.  This pain is different though.  The pain is over in \nhis right sacroiliac area.  He does have some low back pain.  \nHe does not have any left hip or thigh pain.  This pain goes \ndown into his buttock but does not radiate down his thigh or \nhis leg.  No numbness or tingling.  No history of back \nproblems.  He is profoundly disabled by this pain however and \nis just barely able to get around with crutches and is having a \ntough time getting in and out of work due to his sitdown duty. \n \n Dr. Allard arranged x-rays on or about February 15, 2022: \nLumbar Spine:  Radiographic Findings:  evidence of \nosteoarticular abnormality: He has got some anterolisthesis \nat L3/4 and retrolisthesis at L4/5.  Mild degenerative scoliosis \nin his lumbar spine.  No evidence of fracture of the lumbar \nspine or the pelvis.  SI joints look normal.... \nHip:  Radiographic Findings:  evidence of osteoarticular \nabnormality:  He has got some early osteoarthritis of the right \nhip with some joint space narrowing and osteophyte \nformation.  None on the left side.  No evidence of fracture.   \n \n\nBEAUCHAMP - H201972   8\n  \n \n \n Dr. Allard assessed “1.  Low back pain – Lumbar back strain.  \nSymptoms are on the right side.  He does not sound like he has a lot of \nradicular pain, but the amount of pain he has is remarkable and he [is] just \nbarely able to even walk.  It is my medical opinion that this is likely due to \noveruse 2 weeks ago and is not directly related to his work-related injury \nfrom 6 weeks ago....James will need to be off work for approximately the \nnext 2 weeks.” \n The claimant followed up with Dr. O’Connell on February 23, 2022:  \n“His pain seems to be related to overcompensating with the R hip while \nusing crutches.”   \n The claimant signed a Form AR-C, CLAIM FOR COMPENSATION, \non March 7, 2022.  The ACCIDENT INFORMATION section of the Form \nAR-C indicated that the Date of Accident was January 4, 2022.  The \nclaimant wrote on the Form AR-C, “I fell on my left hip while working, \ninjuring both hips in the impact.” \n An MRI of the claimant’s left hip was taken on April 12, 2022 with the \nfollowing impression: \n1.  Mildly displaced, acute or subacute fractures of the left \nsuperior and left inferior pubic rami. \n2.  Nondisplaced, acute or subacute fracture of the right \nsacral ala. \n3.  No fracture of either proximal femora.   \n \n\nBEAUCHAMP - H201972   9\n  \n \n \nAn MRI of the claimant’s right hip was taken on April 13, 2022, with \nthe following impression: \n1.  Acute or subacute, mildly displaced fractures of the left \nsuperior and left inferior pubic rami. \n2.  Nondisplaced, acute or subacute fracture of the right \nsacral ala. \n3.  No fracture of either proximal femora. \n4.  Findings of femoroacetabular impingement of each hip, a \nchronic finding.  On this MRI of the right hip, abnormal \nsignal in the superior aspect of the right acetabular labrum \nis consistent with chronic degeneration of the labrum \nrelated to the femoroacetabular impingement.   \n \n Dr. O’Connell signed a note on April 26, 2022 which indicated, \n“JAMES BEAUCHAMP is currently under my medical care.  At this time it is \nmy recommendation that he only use a walker and not crutches due to his \npelvic fractures.”   \nDr. Matthew Coker examined the claimant on May 1, 2022: \nPatient presents for evaluation of his bilateral hips.  He is a \n61-year-old gentleman who injured his hip on the left side \nback in January with a fall at work.  He states that at first he \ndid not think it was much better continue to bother him had it \nworked up and was recently found to have some ramus \nfractures on the left side.  He was also subsequently found to \nhave a right sacral alae fracture.  He did develop some right \nhip pain but this was not associated with the fall on the left \nside.  This started to bother him a few weeks later.  The left \nside is a work-related injury but the right side is not \nconsidered a work-related injury.  Patient is on Percocet at \nthis time for the pain.  States as the right side is bothering him \nthe most at this time.... \nOn physical exam he is a well-developed well-nourished 61-\nyear-old male in no acute distress.  Examination of the \nbilateral lower extremity shows light touch sensation intact to \nthe L4-S1 distribution.  He can flex and extend the hip, knee \n\nBEAUCHAMP - H201972   10\n  \n \n \nand ankle.  He has motion of the hip that is uncomfortable but \nhe is he does have good motion both left and right.  Straight \nleg raise a little uncomfortable but not exquisitely painful.  \nMRIs were reviewed showing a left sided superior and inferior \nramus fracture and on the right and the sacrum, on the \nsuperior and lateral aspect he has a increased uptake \nconsistent with [an] acute versus subacute fracture of the right \nsacral alae.   \n \n Dr. Coker assessed and planned the following:  “Impression is ramus \nfractures on the left after a fall at work and a right sacral fracture.  Plan will \nbe to continue to keep him off work for now because he is just not able to \nget around safely.  He is not able to do his normal duties at work.  He will \nfollow-up with me in 6 weeks for repeat evaluation with [an] AP of the \npelvis.  My hopes is at that time we can increase his activities at work.”   \n Dr. Christopher P. Dougherty reported on June 22, 2022, “He was \nseen today for bilateral hip pain from a fall at work that occurred January \n4\nth\n, 2022.  The MRI and x-rays taken 4/15/22 and 1/4/22 showed a left \ninferior and superior pubic ramus fracture, non displaced sacral ala, and a \npossible nonunion fracture.  New x-rays today were taken of the pelvis and \nthey showed early osteoarthritis of the right hip.”  Dr. Dougherty assessed \n“1.  Closed fracture pelvis, multiple pubic rami – stable.”   \n A CT of the claimant’s pelvis was taken on August 2, 2022 with the \nimpression, “1.  Fractures involving the left superior/inferior pubic rami and \nright aspect of the sacrum as described above.\"   \n The claimant followed up with Dr. Dougherty on August 3, 2022: \n\nBEAUCHAMP - H201972   11\n  \n \n \nHe was seen today to discuss his CT results for the pelvis.  \nThe Ct showed a left superior/inferior pubic ramus fracture \nand a right fracture of the aspect sacrum.  AL (sic) of these \nfractures are directly related to his fall at work and he remains \noff work at thist (sic) time due to these fractures.  He cannot \ndo sedentary work due to his fractures.  His vitamin D levels \nwere discussed and noted at the level of 20.  He will need to \ntake part in 50,000 units for 8 weeks before other planning.  \nHe will need to get lab redrawn in 8 weeks and follow up to \nassess new vitamin lab reports.   \n \n Dr. Dougherty assessed “1.  Fracture of superior pubic ramus....  2.  \nVitamin D deficiency.”             \n Dr. Dougherty signed a Return to Work/School note on August 8, \n2022 which indicated that the claimant “Was Seen in my office on:  \n8/03/22....Work limitations:  No work at this time.”   \n A pre-hearing order was filed on September 15, 2022.  According to \nthe text of the pre-hearing order, the claimant contended that he was \n“entitled to medical treatment for his right hip, and pelvic fractures in \naddition to treatment respondents are providing for his left hip.  Claimant \ncontends he is entitled to temporary total disability benefits from the date \nlast worked to a date yet to be determined.  The claimant reserves all other \nissues.”   \n The parties stipulated that the respondents “have controverted the \nclaim regarding claimant’s right hip and pelvis.”  The respondents \ncontended that the claimant “did not suffer a right hip injury on or about \nJanuary 4, 2022.  Respondents further contend that in the event \n\nBEAUCHAMP - H201972   12\n  \n \n \ncompensability is found, the medical records do not support entitlement to \nmedical treatment or indemnity benefits for the right hip.”   \n The parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on \nJanuary 4, 2022, regarding his right hip and pelvis. \n2.  If compensable, whether claimant is entitled to temporary \ntotal disability benefits, and medical benefits. \n3.  Compensation rate. \n4.  Attorney fees.   \n \nAt the referral of Dr. Dougherty, the claimant began physical therapy \nvisits at Trinity Rehabilitation, Inc. on September 16, 2022.   \nDr. O’Connell signed the following statement on November 2, 2022:  \n“Mr. James Beauchamp, (DOB 12/23/60) has been my patient for over 10 \nyears.  He has never had issues with his hips or pelvis.  His fracture of \npelvis was a result of a fall at work in early 2022.”   \nAfter a hearing, an administrative law judge filed an opinion on \nJanuary 23, 2023.  The administrative law judge found that the claimant \nproved he “suffered a compensable injury to his right hip and pelvis on \nJanuary 5, 2022.”  The administrative law judge awarded reasonably \nnecessary medical treatment and temporary total disability benefits.  The \nrespondents appeal to the Full Commission.   \nII.  ADJUDICATION \nA.   Compensability \n\nBEAUCHAMP - H201972   13\n  \n \n \nAct 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n(A)  “Compensable injury” means: \n(i)  An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in \nthe course of employment and which requires \nmedical services or results in disability or death.  An \ninjury is “accidental” only if it is caused by a specific \nincident and is identifiable by time and place of \noccurrence[.]   \n \nAn injury must also be established by medical evidence supported by \nobjective findings. Ark. Code Ann. §11-9-102(4)(D)(Repl. 2012).  “Objective \nfindings” are those findings which cannot come under the voluntary control \nof the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. 2012).   \nThe employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).   \nAn administrative law judge found in the present matter, “2.  \nClaimant has met his burden of proving that he suffered a compensable \ninjury to his right hip and pelvis on January 5, 2022.”  The administrative \nlaw judge inexplicably failed to cite any portion of the pertinent controlling \nstatute, Ark. Code Ann. §11-9-102(4)(Repl. 2012), supra.  Nevertheless, it \n\nBEAUCHAMP - H201972   14\n  \n \n \nis the duty of the Full Commission to enter findings in accordance with the \npreponderance of the evidence and not on whether there is substantial \nevidence to support the administrative law judge’s findings.  Roberts v. Leo \nLevi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  The Full \nCommission reviews an administrative law judge’s opinion de novo, and it is \nthe duty of the Full Commission to conduct its own fact-finding independent \nof that done by an administrative law judge.  Crawford v. Pace Indus., 55 \nArk. App. 60, 929 S.W.2d 727 (1996).  The Full Commission enters its own \nfindings in accordance with the preponderance of the evidence.  Tyson \nFoods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).   \nThe Full Commission finds in the present matter that the claimant did \nnot prove by a preponderance of the evidence that he sustained a \ncompensable injury to his right hip or pelvis on January 4, 2022.  The \nclaimant testified that he tripped and fell on his left hip and knee while \nperforming employment services for the respondents on January 4, 2022.  \nThere was no stipulation of record regarding compensability of the \naccidental injury which occurred on January 4, 2022.  In their brief on \nappeal to the Full Commission, the respondents expressly state that the \nclaimant sustained a “compensable injury to his left hip.”   \nThe claimant testified on cross-examination that he fell on his left hip \nas a result of the January 4, 2022 specific incident.  The claimant agreed \n\nBEAUCHAMP - H201972   15\n  \n \n \nthat he did not injure his right hip on January 4, 2022.  J. Daniel Nicholas, \nP.A. reported on January 4, 2022 that the claimant fell and injured his “left \nhip.”  Mr. Nicholas did not report that the claimant also injured his right hip \nor pelvis.  The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on January 6, 2022.  It was reported on the Form AR-N that the \nclaimant injured his “Left knee and hip.”  There was no indication that the \nclaimant also injured his right hip or pelvis.  J. Daniel Nicholas continued to \nfollow up with the claimant for complaints of “Pain in left hip.”  A physical \ntherapist noted on January 27, 2022 that the claimant injured his “left knee \nand hip” as a result of the accidental injury.  Dr. Allard reported on February \n15, 2022 that the claimant “landed hard on his left side” when the claimant \nfell on January 4, 2022.  The evidence does not demonstrate that the \nclaimant injured his right hip or pelvis as a result of the January 4, 2022 \naccidental injury. \nThe Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that he sustained a “compensable injury” to \nhis right hip or pelvis.  The claimant did not prove that he sustained an \naccidental injury causing internal or external physical harm to his right hip or \npelvis.  The claimant did not prove that he sustained an injury to his right \nhip or pelvis which arose out of and in the course of employment, required \nmedical services, or resulted in disability.  The claimant did not prove that \n\nBEAUCHAMP - H201972   16\n  \n \n \nhe sustained an injury to his right hip or pelvis which was caused by a \nspecific incident or was identifiable by time and place of occurrence on or \nabout January 4, 2022.  The Full Commission accordingly does not affirm \nthe administrative law judge’s finding that the claimant proved he “suffered \na compensable injury to his right hip and pelvis on January 5, 2022.”  \nB.   Natural Consequence \nThe Full Commission has determined supra that the claimant did not \nprove he sustained a compensable injury to his right hip or pelvis on \nJanuary 4, 2022.  The respondents argue on appeal that the claimant “did \nnot establish a causal link between his alleged right hip injury and the \ncompensable injury to his left hip.”  When the primary injury is shown to \nhave arisen out of and in the course of employment, the employer is \nresponsible for any natural consequence that flows from that injury.  Nichols \nv. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148.  The basic test \nis whether there is a causal connection between the injury and the \nconsequences of such.  Id.  The burden is on the employee to establish the \nnecessary causal connection.  Id.  Whether there is a causal connection is \na question of fact for the Commission.  Jeter v. B.R. McGinty Mechanical, \n62 Ark. App. 53, 968 S.W.2d 645 (1998).   \nIn the present matter, the parties implicitly stipulated that the \nclaimant proved he sustained a compensable injury to his left hip on \n\nBEAUCHAMP - H201972   17\n  \n \n \nJanuary 4, 2022.  The Full Commission finds that the claimant proved his \nsubsequent right hip difficulties were a natural consequence flowing from \nthe compensable left hip injury.  The claimant agreed on cross-examination \nthat he began suffering from right hip pain approximately three weeks after \nthe compensable left hip injury.  The determination of the credibility and \nweight to be given a witness’s testimony is within the sole province of the \nCommission.  Murphy v. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 \n(2007).  The Full Commission finds in the present matter that the claimant \nwas a credible witness.  The claimant informed a physical therapist no later \nthan February 1, 2022 that his right hip was hurting.  J. Daniel Nicholas \nnoted on February 8, 2022 that the claimant “has been having severe pain \nin his right hip....He has developed severe right hip pain with no specific \ninjury.”  Mr. Nicholas opined on February 8, 2022, “The cause of his right \nhip pain is unclear.  The only way it could be related to his original injury is if \nit was caused by overcompensation when using crutches for his left leg.”  \nSuch a notation by a treating health provider is evidence demonstrating that \nthe claimant’s right hip complaints were a natural consequence of the \ncompensable left hip injury. \nDr. Allard reported on February 15, 2022 with regard to the \nclaimant’s right hip symptoms, “It is my medical opinion that this is likely \ndue to overuse 2 weeks ago [emphasis supplied] and is not directly related \n\nBEAUCHAMP - H201972   18\n  \n \n \nto his work-related injury from 6 weeks ago.”  Dr. O’Connell stated on \nFebruary 23, 2022, “His pain seems to be related to overcompensating with \nthe R hip while using crutches.”  An MRI of the claimant’s right hip on April \n13, 2022 showed several abnormalities including a “fracture of the right \nsacral ala.”  These diagnostic abnormalities where not shown to be present \nbefore the January 4, 2022 compensable injury to the claimant’s left hip.  \nWe find that these abnormalities were additional evidence demonstrating \nthat the claimant’s right hip difficulties were a natural consequence of the \ncompensable injury occurring January 4, 2022.  Dr. Coker reported on May \n1, 2022, “Impression is ramus fractures on the left after a fall at work and a \nright sacral fracture.”  Dr. Dougherty opined on August 3, 2022, “He was \nseen today to discuss his CT results for the pelvis.  The Ct showed a left \nsuperior/inferior pubic ramus fracture and a right fracture of the aspect \nsacrum.  AL (sic) of these fractures are directly related to his fall at work \n[emphasis supplied].”   \nBased on the probative evidence of record, the Full Commission \nfinds that the claimant proved his right hip and pelvis difficulties were a \nnatural consequence of the January 4, 2022 compensable injury to the \nclaimant’s left hip.  Nichols, supra. \nC.   Temporary Disability \n\nBEAUCHAMP - H201972   19\n  \n \n \nTemporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \nHwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing \nperiod” means “that period for healing of an injury resulting from an \naccident.”  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \ncontinues until the employee is as far restored as the permanent character \nof the injury will permit, and if the underlying condition causing the disability \nhas become stable and nothing further in the way of treatment will improve \nthat condition, the healing period has ended.  Harvest Foods v. Washam, \n52 Ark. App. 72, 914 S.W.2d 776 (1996).  The determination of when the \nhealing period has ended is a question of fact for the Commission.  Carroll \nGen. Hosp. v. Green, 54 Ark. App. 102, 923 S.W.2d 878 (1996).   \nThe Full Commission finds in the present matter that the claimant \nproved he was entitled to temporary total disability benefits beginning \nFebruary 15, 2022 and continuing until a date yet to be determined.  The \nclaimant sustained a compensable injury to his left hip on January 4, 2022.  \nJ. Daniel Nicholas stated on January 4, 2022, “James’s recommended \nWork Status is Restricted Duty....Allow sitting work as needed.”  The \nclaimant’s testimony indicated that he returned to at least restricted work \nduties for the respondents.  The claimant eventually began suffering from \n\nBEAUCHAMP - H201972   20\n  \n \n \npain in his right hip, which condition the Full Commission has found to be a \nnatural consequence of the compensable left hip injury.   \nThe claimant agreed on cross-examination that he worked for the \nrespondents through February 12, 2022.  Dr. Allard took the claimant off \nwork on February 15, 2022.  The evidence demonstrates that the claimant \nremained within a healing period and was totally incapacitated from earning \nwages beginning February 15, 2022.  Dr. O’Connell recommended on April \n26, 2022 that the claimant “only use a walker and not crutches due to his \npelvic fractures.”  Dr. Coker kept the claimant off work beginning May 1, \n2022.  Dr. Dougherty stated on August 8, 2022, “No work at this time.”      \nThe evidence demonstrates that the claimant remained within a \nhealing period and was totally incapacitated from earning wages beginning \nFebruary 15, 2022.  No treating physician has yet opined that the claimant \nreached the end of his healing period for the compensable left hip injury or \nnatural consequences thereof.  The Full Commission therefore finds that \nthe claimant proved he was entitled to temporary total disability benefits \nbeginning February 15, 2022 and continuing until a date yet to be \ndetermined.  Breshears, supra. \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved his right hip and pelvis condition was a natural \nconsequence of the compensable left hip injury which the claimant \n\nBEAUCHAMP - H201972   21\n  \n \n \nsustained on January 4, 2022.  The claimant proved that the treatment of \nrecord was reasonably necessary in accordance with Ark. Code Ann. §11-\n9-508(a)(Repl. 2012).  The claimant proved that he was entitled to \ntemporary total disability benefits beginning February 15, 2022 until a date \nyet to be determined.  The respondents are entitled to an appropriate offset \nin accordance with Ark. Code Ann. §11-9-411(Repl. 2012).  The claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. §11-9-715(a)(Repl. 2012).  For prevailing on appeal, the claimant’s \nattorney is entitled to an additional fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012).   \nIT IS SO ORDERED.    \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n  I must respectfully dissent from the Majority’s determination that the \nclaimant has met his burden of proving that he suffered a compensable \ninjury to his right hip and pelvis on January 5, 2022.  (The Full Commission \n\nBEAUCHAMP - H201972   22\n  \n \n \nhas recognized that the date of the claimant’s date of accident is incorrectly \ndocumented as January 5, 2022.  The correct date is January 4, 2022).   \n In order to prove a compensable injury as a result of a specific \nincident that is identifiable by time and place of occurrence, a claimant must \nestablish the following by a preponderance of the evidence:  (1) an injury \narising out of and in the course of employment; (2) that the injury caused \ninternal or external harm to the body which required medical services or \nresulted in disability or death; (3) medical evidence supported by objective \nfindings, as defined in Ark. Code Ann. § 11-9-102(16), establishing the \ninjury; and (4) that the injury was caused by a specific incident identifiable \nby time and place of occurrence.  Odd Jobs & More v. Reid, 2011 Ark. App. \n450, 384 S.W.3d 630 (2011).  \nMore relevant here is the question of whether the claimant’s right hip \ninjury is a natural consequence of his January 4, 2022 injury.  Arkansas \nCode Annotated section 11-9-508(a) requires an employer to provide an \ninjured employee such medical services as may be reasonably necessary \nin connection with the injury received by the employee.  When the primary \ninjury is shown to have arisen out of and in the course of employment, the \nemployer is responsible for any natural consequence that flows from that \ninjury.  Nichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 \n(2010).  However, for this rule to apply, the basic test is whether there is a \n\nBEAUCHAMP - H201972   23\n  \n \n \ncausal connection between the injury and its alleged \nconsequences. Id.  The burden is on the employee to establish the \nnecessary causal connection. Id.  Whether a causal connection exists \nbetween two episodes is a question of fact for the Commission.  Jeter v. \nB.R. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998). \nThe claimant has been unable to indicate any record or recollection \nthat would prove that his right hip injury is related to his January 2022 fall. \nIn fact, the great majority of the evidence reflects that there is no causal \nlinks between the two injuries.  \nOn January 4, 2022, the claimant was seen at Arkansas \nOccupational Medicine Services with a history of falling and injuring his left \nhip with no mention of all of any type injury to his right hip.  (Resp. Ex. 1 Pp. \n36-37).  The claimant was seen again at Arkansas Occupational Medicine \nServices on February 8, 2022, complaining of pain in his left and right hips, \nstating that he had “developed severe right hip pain with no specific injury.” \n(Resp. Ex. 1, P. 51).  At that time, Physician Assistant J. Daniel Nicholas \nopined that “[t]he cause of his right hip pain is unclear.  \nThe claimant later reported that to Dr. Mark Allard on February 15, \n2022, “he was feeling much better, and was down to only using 1 crutch” a \ncouple of weeks after his injury.  (Resp. Ex. 1, P. 57). He also told Dr. Allard \nit was not until the day after he did home exercises and went shopping with \n\nBEAUCHAMP - H201972   24\n  \n \n \nhis wife and 3-year-old grandson that his right hip began hurting and he \nwas unable to walk.  He also told Dr. Allard that his right hip pain was \ndifferent from his original injury.  (Resp. Ex. 1, Pp. 57-58).  A lumbar spine \nx-ray taken on February 15, 2022, showed “early osteoarthritis of the right \nhip with some joint space narrowing and osteophyte formation.  None on \nthe left side.  No evidence of fracture.” Id. The x-ray also showed \ndegenerative scoliosis in the lumbar spine. Id.  \nA CT scan of the claimant’s pelvis on August 2, 2022, showed “a \ncomminuted, mildly distracted fracture involving the left aspect of the \nsacrum” and “mild joint space narrowing involving both hips.” (Cl. Ex. 1, P. \n115).  “No acute fracture involving either hip [was] present.” Id.  Dr. Allard \nwent on to state that it was his medical opinion that the claimant’s pain in \nhis right hip is likely due to overuse two weeks ago and is not directly \nrelated to his work-related injury from six weeks ago.  (Resp. Ex. 1 P. 60).   \nUltimately, the claimant presented to Dr. Matthew Coker on April 28, \n2022, who reported that the claimant “did develop some right hip pain but \nthis was not related with the fall on the left side.  This started to bother him \na few weeks later.  The left side is a work-related injury but the right side is \nnot considered a work-related injury.”  (Resp. Ex. 1, P. 86).  \nOf the numerous professionals treating the claimant for his bilateral \nhip concerns, Dr. Christopher Dougherty, the claimant’s personal \n\nBEAUCHAMP - H201972   25\n  \n \n \npractitioner, is the only one who related the claimant’s right hip injury to his \nwork-related fall.  (Clt. Ex. 1, Pp. 119-120). \nThree different providers, two of which are specialists, have opined that the \nclaimant’s right hip problems are not related to his work injury.  \nTo determine if a claimant has sustained a compensable injury, it is \nimportant to review the reports of the initial medical treatment received by \nthe claimant.  When the claimant was treated on the date of the accident, \nJanuary 4, 2022, he gave no history of any type injury to his right side and \ndid not complain of any pain in that area.  When he returned to his original \nmedical provider on February 8, 2022, the PA, J. Daniel Nicholas, noted Mr. \nBeauchamp had developed right hip pain with no specific injury and the \ncause of his right hip pain was unclear.  Dr. Allard noted that the claimant’s \nright hip pain did not begin until a month after the January 4, 2022 accident \nand it was not until the day after the claimant had gone shopping with his \nwife and grandson that his right hip became painful and he could not walk. \nIn addition, the claimant told Dr. Allard the pain was different than the \noriginal injury.  After examining the claimant and receiving the history from \nthe claimant, it was Dr. Allard’s medical opinion that the claimant’s \ncomplaints of an injury to his right hip were not related to his work injury six \nweeks prior.  Finally, Dr. Coker opined after examining the claimant and \ntaking the history from him that the claimant developed some right hip pain, \n\nBEAUCHAMP - H201972   26\n  \n \n \nbut this did not develop until a few weeks later and is not associated with \nthe fall on the left side.  It should also be pointed out that by the time the \nclaimant was treated by Dr. Coker on April 28, 2022, nearly four months \nafter the accident on January 4, 2022, there were no objective medical \nfindings of a right hip injury by any of the medical providers who had treated \nthe claimant.  In addition, the opinion of the PA-C and the opinions of Dr. \nAllard and Dr. Coker were unequivocal that the right hip problems were not \nrelated to the January 2022 fall. \n         The claimant’s testimony as to when his right hip pain started and the \ncause of his right hip pain was not only “somewhat confusing” as stated by \nthe ALJ, but it was also all over the map and consisted of many different \nversions of when the pain started and the cause of the pain.  As a result, \nthe histories given by the claimant to PA Nicholas, Dr. Allard and Dr. Coker \nis of the utmost importance and confirms that his right hip issues are not \nrelated to the fall on January 4, 2022. \nIn his January 23, 2023 Opinion and Order, the ALJ concluded that \n“[r]elating a fracture on the right side of claimant’s hip from a violent fall on \nhis left side does not require speculation or guesswork.”  (P. 12).  However, \nwhile the weight and interpretation of the medical evidence are matters for \nthe Commission, it is within the Commission's province to reconcile \nconflicting evidence, including the medical evidence, and to determine the \n\nBEAUCHAMP - H201972   27\n  \n \n \ntrue facts.  Hernandez v. Wal-Mart Assocs., 2009 Ark. App. 531, 337 \nS.W.3d 531 (2009); Pyle v. Woodfield, Inc., 2009 Ark. App. 251, 306 \nS.W.3d 455 (2009).  The Commission is entitled to review the basis for \nmedical opinions in deciding the weight and credibility of the opinion and \nmedical evidence, but the Commission may not arbitrarily disregard medical \nevidence or the testimony of any witness.  Aegon Ins. United States v. \nDurham-Gilpatrick, 2010 Ark. App. 827, 378 S.W.3d 773, 777 (2010). \nIn this case, while purporting to use “common sense-observation and \ndeduction” as required by our rules, the ALJ outright disregards the weight \nof the credible evidence.  Wal-Mart Stores v. VanWagner, 337 Ark. 443, \n990 S.W.2d 522 (1999).  Three medical providers state unequivocally that \nthe claimant’s right hip issues were not work related.  While the ALJ \ncontends that PA Nicholas, Dr. Allard, and Dr. Coker were all equivocal \nabout the source of the claimant’s right hip injury in their records, they each \nstate with no hesitation and without question that the claimant’s right hip \ninjury was not work related.  The ALJ’s reliance on the report of Dr. \nDougherty as the only unequivocal medical opinion is unfounded and not \nsupported by a reading of the medical records.  There is no evidence to \nsuggest that the opinions of PA Nicholas and Drs. Allard and Coker were \nequivocal in anyway and it is stretch by the ALJ to state that the report by \n\nBEAUCHAMP - H201972   28\n  \n \n \nDr. Coker is equivocal when he opined:  “The left side is a work-related \ninjury, but the right side is not considered a work-related injury.”   \n Dr. Dougherty was the first medical provider to state the claimant’s \nright hip issues were related to the January 4, 2022 fall.  Dr. Dougherty did \nnot see the Claimant until June 22, 2022, nearly six months after the \naccident in question and did not find the right hip issues to be related to the \nJanuary 4, 2022 fall until August 3, 2022, nearly seven months after the \naccident and his opinion was completely different from the three medical \nproviders that treated the claimant immediately after the accident in \nquestion.  (Clt. Ex. 1, Pp. 111,120).  It is clear the three medical providers \nwho treated the claimant immediately after the accident were in a much \nbetter position to determine if the claimant’s right hip issues were related to \nthe fall in January 2022 than Dr. Dougherty who did not relate the right hip \nissues to the original fall until seven months after the accident.  The opinion \nof one doctor who did not see the claimant until nearly six months after the \naccident should not carry the same weight as the three medical providers \nwho treated the claimant beginning the day of the accident and all share the \nsame medical opinion that the right hip problems were not related to the fall \nin January 2022. \nThe basis for the ALJ’s opinion appears to be that a series of \nmistakes were made on the part of the medical practitioners. The ALJ first \n\nBEAUCHAMP - H201972   29\n  \n \n \ndoes this when disregarding records from NWA Physical Abilities Testing \nCenter on January 27 and February 1, 2022, finding, without any proof, that \nthe code reflecting that the claimant presented with a right hip contusion \nwas simply entered incorrectly.  (P. 11).  There was absolutely no proof \npresented on this issue and nothing in the record to support this finding \nother than the conjecture and speculation of the ALJ which does not \nconstitute proof and should not be considered.  \n This line of reasoning appears again when the ALJ states in his \nopinion:  “It is unclear if the right hip issues were not considered a work-\nrelated injury by Dr. Coker, or not considered to be such by the workers’ \ncompensation carrier.  It is evident Dr. Coker’s staff had been contacted by \nthe adjuster for the carrier prior to examining the claimant on April 28, 2022, \nbecause the contact information for that adjuster is provided under the \nheading “Patient’s Care Team.”  From this wording, I cannot tell if Dr. Coker \nmade an independent evaluation on whether the right hip injury was related \nto the fall or recited what he had been told by the carrier about a right hip \nclaim.” (P. 12).  These statements and findings by the ALJ are disturbing \nand should not be condoned by the Commission.  These findings by the \nALJ are nothing more than pure conjecture and speculation on the part of \nthe ALJ with absolutely no testimony or proof of any kind to support his \naccusations.  To affirm the ALJ’s opinion based on his own conjecture and \n\nBEAUCHAMP - H201972   30\n  \n \n \nspeculation rather than the proof would condone these actions.  While the \nadjuster and respondent carrier’s contact information appears under the \n“Care Team” section of Dr. Coker’s report (Resp. Ex. 1, P. 84), there is no \nevidence or proof in the record to show that the adjuster or anyone from the \ncarrier ever spoke with Dr. Coker or his team.  The ALJ has pointed to no \nproof to support his accusations.  \nSimply put, “[s]peculation and conjecture cannot substitute for \ncredible evidence.” Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d \n560 (2002) (citing Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d \n155 (1980)). The basis of the ALJ’s opinion in this matter is his own \nspeculation and conjecture.  Rather than review and rely on the evidence \nand proof presented at the hearing, the ALJ relies on proof that he supplied \nsua sponte and the claimant’s own self-serving testimony, which the ALJ \nadmitted was confusing.  The entirety of the reliable evidence in this matter \nproves that the claimant’s right hip injury was unrelated to his January 2022 \nfall. To find otherwise would allow an opinion to be based on the \nspeculation and conjecture of the ALJ rather than the proof submitted at the \nhearing.  \nFor the reasons stated above, I respectfully dissent. \n                                                                      \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":46153,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H201972 JAMES BEAUCHAMP, EMPLOYEE CLAIMANT CONAGRA FOODS PACKAGED FOODS, LLC, EMPLOYER RESPONDENT BROADSPIRE SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JULY 13, 2023","outcome":"affirmed","outcomeKeywords":["affirmed:1"],"injuryKeywords":["hip","knee","fracture","back","lumbar","strain","ankle"],"fetchedAt":"2026-05-19T22:29:46.229Z"},{"id":"alj-H205450-2023-07-12","awccNumber":"H205450","decisionDate":"2023-07-12","decisionYear":2023,"opinionType":"alj","claimantName":"Stevie Massey","employerName":"Rock N Roll Sushi","title":"MASSEY VS. ROCK N ROLL SUSHI AWCC# H205450 JULY 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MASSEY_STEVIE_H205450_20230712.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MASSEY_STEVIE_H205450_20230712.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205450 \n \nSTEVIE MASSEY, EMPLOYEE  CLAIMANT \n \nROCK N ROLL SUSHI, \nEMPLOYER                                                                                                RESPONDENT  \n \nSEQUOIA INSURANCE COMPANY, \nINSURANCE COMPANY                                                                          RESPONDENT \n \nAM TRUST NORTH AMERICA, \nTHIRD PARTY ADMINISTRATOR                                                           RESPONDENT  \n \n \nOPINION FILED JULY 12, 2023 \n \nHearing before Administrative Law Judge Steven Porch on July 11, 2023, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant is Pro Se. \n \nThe  Respondents  were  represented  by  William  C.  Frye,  Attorney  at  Law,  North  Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on July 11, 2023, in Little Rock, \nArkansas.  Claimant was Pro Se and did not appear for the hearing.  Respondents were \nrepresented  at  the  hearing  by  Attorney  William  C.  Frye.  In  addition  to  Respondent’s \nargument,  the  record  further consists  of  the  Commission’s  file,  which  has  been \nincorporated herein in its entirety by reference. \n The evidence reflects that Claimant’s injury occurred on June 25, 2022, where she \npurportedly injured her knee resulting in a meniscus tear.  This incident allegedly occurred \nwhen Claimant was walking down the stairs during the course and scope of employment. \n\nMASSEY H205450 \n \n \n2 \nA hearing was held on July 11, 2023, in Little Rock, Arkansas, on the Motion to Dismiss. \nAnd as previously stated, the Claimant did not appear for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \n\nMASSEY H205450 \n \n \n3 \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence and Claimant’s failure to appear, I find that \nClaimant was required to give the Commission her most current address. In that respect, \nI also find that Claimant was given reasonable notice, at her most current address, for the \nMotion to Dismiss hearing. I further find that Claimant has abridged Rule 13 by failing to \nprosecute her claim. Therefore, Respondent’s Motion to Dismiss should be granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4769,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205450 STEVIE MASSEY, EMPLOYEE CLAIMANT ROCK N ROLL SUSHI, EMPLOYER RESPONDENT SEQUOIA INSURANCE COMPANY, INSURANCE COMPANY RESPONDENT AM TRUST NORTH AMERICA, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JULY 12, 2023 Hearing before Administrative La...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:05:14.535Z"},{"id":"alj-H005060-2023-07-12","awccNumber":"H005060","decisionDate":"2023-07-12","decisionYear":2023,"opinionType":"alj","claimantName":"Stanley Cheathem","employerName":"Husqvarna Outdoor Products, Inc","title":"CHEATHEM VS. HUSQVARNA OUTDOOR PRODUCTS, INC. AWCC# H005060 JULY 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CHEATHEM_STANLEY_H005060_20230712.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CHEATHEM_STANLEY_H005060_20230712.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H005060 \n \nSTANLEY R. CHEATEM,  \nEMPLOYEE                                                                                CLAIMANT \n                                                       \nHUSQVARNA OUTDOOR PRODUCTS, INC.,  \nEMPLOYER                                                                                            RESPONDENT \n                                            \nSAFETY NAT’L CASUALTY CORP./                                \nCORVEL ENTERPRISE COMP, INC.,   \nINSURANCE CARRIER/TPA                                                                           RESPONDENT   \n \n \nOPINION AND ORDER FILED JULY 12, 2023 \n                                                                                      \nHearing  conducted  before  the  Arkansas  Workers’  Compensation  Commission  (the \nCommission),  Administrative  Law  Judge  (ALJ)  Mike  Pickens,  on  Thursday,  April  13, \n2023, in Hope, Hempstead County, Arkansas. \n \nThe  claimant  was  represented  by  the  Honorable Malcolm  A.  Simmons,  Simmons  Law \nFirm, Little Rock, Pulaski County, Arkansas.  \n \nThe  respondents  were  represented  by  the  Honorable  Edward  W.  McCorkle,  McMillan, \nMcCorkle & Curry, LLP, Arkadelphia, Clark County, Arkansas. \n \nINTRODUCTION \n        In  the  prehearing  order  filed  March  1,  2023,  the  parties  agreed  to  the  following \nstipulations, which they affirmed on the record at the hearing: \n1. The Arkansas Workers' Compensation Commission (the Commission) has jurisdiction \n over this claim. \n  \n2. The   employer/employee/carrier-TPA   relationship   existed   at   all   relevant   times \nincluding December 19, 2019, when the claimant alleges he sustained a gradual onset \nwork-related  injury  to  his  right  due  to  the  alleged  rapid-repetitive  nature  of  his  job \nduties. \n \n\nStanley R. Cheathem; AWCC H005060 \n \n2 \n \n3. The  claimant's  average  weekly  wage  (AWW)  was  $460.00,  which  is  sufficient  to   \nentitle  him  to  weekly  compensation  rates  of  $370.00  for  temporary  total  disability \n(TTD), and $230.00 for permanent partial disability (PPD) benefits. \n \n4 The respondents have controverted this claim in its entirety. \n5. The parties specifically reserve any and all other issues for future litigation and/or  \ndetermination. \n \n(Commission Exhibit 1 at 1-2; Hearing Transcript at 7-8). At the hearing the parties also agreed \nto stipulate that the respondents’ private investigator witnesses would testify consistent with \nthe reports the respondents introduced into evidence, and claimant’s counsel advised he did \nwant to to cross-examine these particular witnesses. (T. 67-68; 81-82). \n Pursuant to the parties’ mutual agreement the issues litigated at the hearing were: \n1. Whether the claimant sustained a gradual onset compensable injury within the \n      meaning of the Arkansas' Workers' compensation Act (the Act) to his right wrist on \n          December 19, 2019. \n \n2. If the claimant's alleged injury is deemed compensable, the extent to which he is \n entitled to medical and indemnity benefits.  \n \n3.      Whether the claimant's attorney is entitled to a controverted fee on these facts. The \n         parties specifically reserve any and all other issues for future litigation and/or \n         determination. \n \n4.      The parties specifically reserve any and all other issues for future litigation and/or  \n         determination. \n \n(Comms’n. Ex. 1 at 2; T. 7-8).  \nThe claimant contends that on or about December 19, 2019, he was relocated to a \nnew position, line and job that he wasn't used to performing. His right wrist had been irritated \nfor a few weeks before he was moved to the new job, but nothing unusual for the type of work \nhe performed. The claimant contends the newly assigned position caused him to use his right \nwrist in a more demanding way that really ignited the pain, causing him to request and seek \n\nStanley R. Cheathem; AWCC H005060 \n3 \n \nmedical treatment. The plant nurse, Yvonne Moorland, wrapped and rubbed the claimant's right \nwrist. (Comms’n Ex. 1 at 2-3; T. 82-83; Claimant’s Post-Hearing Brief).  \nThe respondents contend the claimant  cannot meet his burden of proof pursuant to \nthe Act in demonstrating he sustained a gradual onset injury that culminated in disability as of \nDecember 19, 2019. The respondents contend the claimant did not injure his right wrist within \nthe course and scope of his employment and, therefore, he did not sustain a compensable gradual \nonset  injury within the Act’s meaning.  The  respondents  contend  the  relevant  medical  reports \nindicate the claimant already had a scapholunate advanced collapse of his right wrist as well as \nosteoarthritis of his right wrist which are non-compensable conditions/injuries. (Comms’n Ex. \n1  at  3;  T.  83-86; Respondents’ Post-Hearing  Brief).The  record  herein  consists  of  the  hearing \ntranscript  and  any  and  all  exhibits  contained  therein  and/or  attached  thereto,  as  well  as  the \nparties’ blue-backed post-hearing briefs. \n                                          STATEMENT OF THE CASE \n          The claimant, Mr. Stanley R. Cheathem  (the  claimant), is now 52 years old. He \nbegan working at Husqvarna Outdoor Products (Husqvarna) on October 17, 2016, working on \nan  assembly  line  making  small  engines,  and  was  assigned  to  Line  5  on  the  carousel  in  the \nassembly department. His last day working at Husqvarna was July 14, 2020. Sometime around \nthe end of 2017 or the beginning of 2018 the claimant was reassigned to a new job on Line 3, \nwhich he testified “was a lot more strenuous” as it required him to torque flywheels and to place \nthe  modules  on  the  prouduct  units.  The  claimant testified  concerning  the  details  of  these  job \nduties  at  the  hearing. The record is devoid of any evidence in rebuttal of the claimant’s \ntestimony concerning his job duties. (T. 13-18; 62-66).  \n\nStanley R. Cheathem; AWCC H005060 \n \n4 \n \n          According to the hearing record the claimant sustained a work-related injury to his \nleft hand  – specifically, his left thumb, which was “locking” and hurting – in July 2018. The \nmedical  records  from  this  time  period  reveal  the  claimant  made  no  complaints  of  right  wrist \npain. Orthopedic surgeon Dr. Brian Norton of Speciality Orthopaedics diagnosed the claimant \nwith  “stenosing tenosynovitis” of his left thumb, which Dr. Norton opined was work-related. \n(Claimant’s Exhibit 2 at 15; 11-15). Dr. Norton performed an A1 pulley release to correct this \ncondition. The respondents accepted this left hand/thumb injury as compensable, and paid both \nmedical and indemnity benefits. The claimant testified this 2018 compensable injury to his left \nthumb “was resolved” as of the date of the subject hearing date. (T. 19; Responds.’ Brief at 1).   \n           In January, 2020, the claimant first signed a Form AR-N alleging a right wrist injury. \nOn July 3, 2020, he filed a second Form AR-N with the Commission alleging he had injured \nhis “Right wrist” on “12-12-2019”, which he attributed to the rapid and repetitive nature of the \njob duties he was performing at that time, described in detail in his hearing testimony. (CX1 at \n1-2; T. 13-18; 66; 62-66). The record reveals the claimant did complain of right wrist pain to \nthe Husqvarna nurse at various times between January 23, 2020 through February 6, 2020, and \nhe received first aid. (Respondents’ Exhibit 2 at 1). The claimant testified he visited the nurses’s \nstation some nine (9) times between January 8, 2020 through July 14, 2020, and he said, “one \nof these was I was [sic] sent there unnecessarily to be treated.” (T. 29) (Bracketed material \nadded). \nThe claimant continued to work at Husqvarna until July 14, 2020, when Husqvarna required \nhim to stop working until he received a medical release stating he could return to work. (T. 29; \nRX3). Thereafter, the claimant did not ever return to work at Husqvarna.  \n\nStanley R. Cheathem; AWCC H005060 \n5 \n \n         On  October  9,  2020,  the  claimant  applied  for  unemployment  benefits.  On  the \nunemployment benefits application form he represented subject to the applicable penalties of \nmaking false statements  that he was available immediately for  full-time  work that he had no \ndisabilities that would prevent him from performing his normal job duties. (RX3; T. 44-45).  \n        On October 14, 2020 – some three (3) months after he last worked at Husqvarna – the \ndid claimant did receive a release to return to work from an Advanced Practice Registered Nurse \n(APRN)  at  Cabun  Rural  Health  Services.  The  release  stated he could, “return to work on \n10/15/2020 with the following restrictions: no use of hand held power tools with his right hand, \nno lifting of 5 pounds or more with the right hand, and must wear brace/splint with any activity.” \n(RX2 at 2).  \n          The same day, October 14, 2020, the claimant sought medical attention for his right \nwrist pain at the Hope Medical Center. At that time he was diagnosed with chronic pain of his \nright wrist; osteoarthritis of his right wrist, “of an unspecified type”, and tendonitis of is right \nwrist.  (RX2  at  4;  3-5).  On  October  15,  2020,  the  claimant  reported  back  to  the  Husqvarna \nnurse’s station and presented the release and work restriction note to the licensed practical nurse \n(LPN)  on  duty,  Ms.  Autumn  Murillo;  however,  because  of  the  work  restrictions  he  did  not \nreturn to work, and left the premises. (RX2 at 6). \n          Relevant  medical  records  from  October  28,  2020  through  September  1,  2021 – \nparticularly   those   of   orthopedic   surgeons   Drs.   Brian   Norton   of   Arkansas   Speciality \nOrthopaedics,  and  G.  Thomas  Frazier  of  the  University  of  Arkansas  for  Medical  Sciences \n(UAMS) –  repeatedly note the claimant’s complaints of “chronic wrist pain”, as well as his \n“unspecified osteoarthritis type”, and an injury to his right scapholunate ligament “with no \ninstability.” (See,  e.g.,  RX2  at  8;  7-45).  There  exists  no  medical  opinion  in  the  record  stated \n\nStanley R. Cheathem; AWCC H005060 \n \n6 \n \nwithin a reasonable degree of medical certainty these conditions were caused by the claimant’s \nwork duties at Husqvarna. The UAMS medical records of Dr. Lori George reveal the claimant \nhas  hypertension,  and  Type  2  diabetes  mellitus  with  hypoglycemia  but  he  is  not  insulin \ndependent. (RX2 at 48-68).  \n        In a clinic note of February 5, 2021, the claimant told his medical provider at Hope \nFamily  Practice  Center  that  his  right  wrist  pain  was,  “...intermittent  and  only  becomes \nbothersome at night, first thing in the morning, or when he is trying to perform twisting and \ngripping manuevers with his right hand/wrist.” (RX2 at 8). The claimant testified  he  did  not \nwant  to  undergo  the  wrist  fusion  surgery  to  repair  his  right  wrist  scapholunate  dissociation \ncondition his treating orthopedic surgeon has recommended to correct the right wrist deformity, \nand that he has no outstanding medical bills at this time because he has health insurance. (T. \n64-65).  \n        The  claimant  further  testified  his  current  self-employment  activities  include  some \nminimal  barber/hair-cutting  (in  the  past  he  attend  and  graduate  from  cosmetology  school), \nraising  and  selling  pit  bull  dogs,  and  some  Gospel  preaching.  (T.  44-61). The claimant’s \ntestimony in this regard is consistent with the respondents’ private investigators’ eyewitness \nreports, and other evidence of record. (T. 46-61; RX1 at 12; RX1A, the thumbdrive; RX1B at \n1-3; RX1C at 1-8). \n          Ms. Kristie Skinner and Ms. Carol Kissman testified on the respondents’ behalf. Ms. \nSkinner testified that she works in Husqvarna’s human resources (HR) department. Ms. Skinner \ntestified  she  sent  a  letter  to  the  claimant  dated  July  15,  2020,  which  stated  the  physical \nrequirements of his job, and requesting that she provide him with some documentation from a \nhealth care provider as to what his physical limitations and restrictions, if any, were at that time. \n\nStanley R. Cheathem; AWCC H005060 \n7 \n \n(RX8). Ms. Skinner then identified a nurse’s note dated 10/15/2020 from Ms. Autumn Murillo \ndiscussed above. She said that after the claimant presented her with this note, she did not contact \nhim and he never contacted her. (RX9). (T. 68-76). \n       Ms. Kissman, who was not employed by Husqvarna at the time of the hearing, testified \nshe was the HR manager for workers’ compensation, but had retired in 2020. She explained \nthat before her 2020 retirement she was transitioning out of her position, and that she still works \nfor  Husqvarna  on  a  part-time  basis.  Although  she  testified  she  had  not  been  a  part  of  the \ninvestigation,  she  said  she  was  aware  that  Husqvarna  had  conducted  an  investigation  of  the \nclaimant’s alleged right wrist injury and determine it was not work-related. She also testified \nconcerning the claimant’s normal work hours, apparently disputing the claimant worked as \nmany hours as he said he did, especially in December since that is a slow time for Husqvarna. \n(T. 77-81). \n                                                      DISCUSSION \nThe Burden of Proof \n  When  deciding  any  issue,  the  ALJ  and  the  Commission  shall  determine,  on  the \nbasis of the record as a whole, whether the party having the burden of proof has established it \nby  a  preponderance  of  the  evidence. Ark.  Code  Ann. §  11-9-704(c)(2)  (2023  Lexis \nReplacement). The claimant has the burden of proving by a preponderance of the evidence he \nis entitled to benefits. Stone v. Patel, 26 Ark. App. 54, 759 S.W.2d 579 (Ark. App. 1998). Ark. \nCode  Ann. Section  11-9-704(c)(3)  (2023  Lexis  Repl.)  states  that  the  ALJ,  the  Commission, \nand the courts “shall strictly construe” the Act, which also requires them to read and construe \nthe Act in its entirety, and to harmonize its provisions when necessary. Farmers Coop. v. Biles, \n77 Ark. App. 1, 69 S.W.2d 899 (Ark. App. 2002). In determining whether the claimant has met \n\nStanley R. Cheathem; AWCC H005060 \n \n8 \n \nhis  burden  of  proof,  the  Commission  is  required  to  weigh  the  evidence  impartially  without \ngiving the benefit of the doubt to either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis \nRepl.); Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. \n1991); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (Ark. App. 1987).  \n   All  claims  for  workers’  compensation  benefits  must  be  based  on  proof. \nSpeculation  and  conjecture,  even  if  plausible,  cannot  take  the  place  of  proof. Ark.  Dep’t  of \nCorrections v. Glover, 35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. \nv.  Herndon,  264  Ark.  791,  595  S.W.2d  155  (1979).  It  is  the  Commission’s  exclusive \nresponsibility  to  determine  the  credibility  of  the  witnesses  and  the  weight  to  give  their \ntestimony. Whaley  v.  Hardees,  51  Ark.  App.  116,  912  S.W.2d  14  (Ark.  App.  1995).  The \nCommission is not required to believe either a claimant’s or any other witness’s testimony, but \nmay  accept  and  translate  into  findings  of  fact  those  portions  of  the  testimony  it  deems \nbelievable. McClain  v.  Texaco,  Inc.,  29  Ark.  App.  218,  780  S.W.2d  34  (Ark.  App.  1989); \nFarmers Coop. v. Biles, supra.  \n   The Commission has the duty to weigh the medical evidence just as it does any \nother  evidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury \nverdict. Williams  v.  Pro  Staff  Temps.,  336  Ark.  510,  988  S.W.2d  1  (1999).  It  is  within  the \nCommission’s province to weigh the totality of the medical evidence and to determine what \nevidence  is  most  credible  given  the  totality  of  the  credible  evidence  of  record. Minnesota \nMining & Mfg’ing v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nGradual Onset Compensable Injuries \n With respect to an alleged gradual onset compensable injury Ark. Code Ann. § 11-\n9-102(4)(A) (2023 Lexis Repl.) defines “compensable injury” as follows: \n \n\nStanley R. Cheathem; AWCC H005060 \n9 \n \n(ii)    An injury causing internal or external physical harm to the body and arising out \n         of and in the course of employment if it is not caused by a specific incident or is \n         not identifiable by time and place of occurrence; if the injury is: \n \n(iii)  Caused by rapid repetitive motion.  Carpal tunnel syndrome is specifically \n categorized as a compensable injury falling within this definition[.]  \n \n(Bracketed material, and emphasis added). \n The test for determining whether an injury is caused by rapid repetitive motion is \ntwo (2)-pronged: (1) the task must be repetitive, and (2) the repetitive motion must be rapid. \nMalone v. Texarkana Public Schools, 333 Ark. 343, 969 S.W.2d 644 (1998). Multiple tasks \ninvolving different movements can be considered together to satisfy the “repetitive element” \nof rapid repetitive motion. Id. \n            Just  as  in  the  case  of  any  other  compensable  injury,  an  alleged  gradual  onset \ncompensable injury must be established by medical evidence supported by objective findings.  \nArk. Code Ann. § 11-9-102(4)(D); Ark. Code Ann. § 11-9-102(16). “Objective findings” are \ndefined as findings which cannot come under the voluntary control of the patient. Ark. Code \nAnn. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, at 80 250 S.W.3d \n263,  at  272  (Ark.  App.  2007).  Objective  findings  specifically  exclude  such  subjective \ncomplaints  or  findings  as  pain,  straight-leg-raising  tests,  and  range-of-motion  (ROM)  tests \nsince they all are subjective in nature and subject to the claimant’s voluntary control or \nmanipulation. See, Burks v. RIC, Inc., 2010 Ark. App. 862 (Ark. App. 2010).  \n           With respect to a gradual onset injury caused by rapid repetitive motion the resulting \ncondition is compensable only if the alleged compensable injury is the “major cause” of the \ndisability  or  need  for  treatment. Ark.  Code  Ann.  §  11-9-102(4)(E)(ii); Medlin  v.  Wal-Mart \nStores, Inc., 64 Ark. App. 17, 977 S.W.2d 239 (1998). “Major cause” means greater than fifty \n\nStanley R. Cheathem; AWCC H005060 \n \n10 \n \npercent (50%) of the cause. Ark. Code Ann. § 11-9-102(4)(E)(ii); Lowe's Home Ctrs., Inc. v. \nPope, 482 S.W.3d 723 (Ark. App. 2016). The “major cause” requirement may be established \nby the fact the claimant was asymptomatic prior to an incident, and then became symptomatic \nand required medical treatment after the incident. Parker v. Atlantic Research Corp., 87 Ark. \nApp. 145, 189 S.W.3d 449 (Ark. App. 2004) (Emphasis added). \n          Both the claimant’s and respondents’ attorneys did an excellent job trying their cases, \nand their post-hearing letter briefs were most informative and helpful in assisting this ALJ in \nrendering the opinion and order herein. And based on the applicable law as applied to the facts \nof this case I am compelled to find the claimant has met his burden of proof in demonstrating \nhis gradual onset right wrist injury which he reported via Form AR-Ns filed both in January \n2020,  and  July  The  respondents  correctly  cite  the  applicable  law  in  their  post-hearing  brief, \nwhich is consistent with that set forth above. As the respondents note, in Parker vs. Atlantic \nResearch  Corp., 87 Ark. App. 145, 152, 187 S.W. 3d 449 (Ark. App. 2004), the Arkansas \nCourt of Appeals explained: “Where, as in the case before us, a rapid repetitive motion injury \nis argued to be an aggravation of a pre-existing condition, the claimant must prove by a \npreponderance of evidence that the injury: 1) arose out of and in the course of her employment; \n2) caused internal or external physical harm to the body requiring medical services; 3) was \ncaused by rapid repetitive motion; 4) was the major cause of the disability or the need for \ntreatment; and 5) was established by medical evidence supported by objective findings.”  \n   In the same paragraph the Parker court goes on to cite two (2) other precedents, \nHigh Capacity Prods. v. Moore, 61 Ark. App. 1, 962 S.W.2d 831 (Ark. App. 1998), and Tyson \nFoods, Inc.  v. Griffin, 61 Ark. App. 222, 966 S.W.2d 914 (Ark. App. 1998), both of which \naffirmed the Commission’s findings and held that, as in Parker, “the claimant’s employment \nactivities  in  the  form  of  rapid  repetitive  movement  had  aggravated  his  degenerative \n\nStanley R. Cheathem; AWCC H005060 \n11 \n \nosteoarthritis in the area of his hands and wrists, and that his condition of carpal tunnel \nsyndrome and aggravation of his preexisting degenerative arthritis constituted the major cause \nof his need for ongoing medical treatment.” Consequently, the Parker case is the oft-cited \nprecedent standing for the proposition that  the Act’s “major  cause” requirement may be \nestablished by the fact the claimant was asymptomatic prior to an incident, and then became \nsymptomatic and required medical treatment after the incident.   \n          In the case at bar, it is beyond reasonable dispute the job duties the claimant was \nperforming at Husqvarna before and during December of 2019 were rapid and repetitive in \nnature. (T. 13-18; 62-66). In fact, as the claimant’s attorney points out in his post-hearing brief, \nthere exists no testimony in the record to the contrary. Moreover, the respondents’ citing of the \nspot-on Parker precedent frames the threshold issue to be decided as whether the claimant’s \nrapid repetitive motion job duties aggravated his obviously preexisting osteoarthritis and \nscapholunate dissociation conditions in his right wrist.  \n          The fact the preponderance of the evidence in the record demonstrates the claimant’s \nright wrist condition was asymptomatic before he reported the subject work-related incident, \nand then became symptomatic and required medical treatment after the reported incident meets \nthe requirement set forth in Parker, et al, compels a finding the claimant’s right wrist injury \nconstitutes a gradual onset compensable injury within the Act’s meaning. (Note: Scapholunate \ndissociation is a condition, usually caused by an injury, where the small bones of the wrist – \nthe scaphoid and lunate – move out of alignment. This is often the result of damage to the \nscapholunate  interosseous  ligament  which  holds  these  small  bones  in  place. See,  e.g., \nhttps://my.clevelandclinic.or/health/diseases23444-scapholunate-dissociation#diagnosis-and-\ntests ). \n\nStanley R. Cheathem; AWCC H005060 \n \n12 \n \n            Of course, this ruling entitles the claimant to, among other possibly applicable \nbenefits, payment of his medical bills and related expenses, and indemnity benefits. However, \nthe claimant testified that after considering all hos options, and the risks and possible outcomes \nof the right wrist fusion surgery his treating orthopedic surgeon recommended, he did not wish \nnor intend to have it, and was not requesting the respondents to pay for this surgery at the \nsubject hearing. (T. 64). The claimant also testified he has no outstanding medical bills at this \ntime since his private health insurance has paid for all his medical bills, apparently both those \nrelated to treatment of his right wrist, as well as those related to his non-work-related conditions \nsuch as his diabetes and hypertension.  \n           Moreover, there is insufficient evidence in the record to determine whether, and if \nso to what extent, the claimant is entitled to indemnity benefits, specifically at this time \ntemporary total disability (TTD) benefits. In fact, the record reveals the claimant has remained \nactive and working on his own, self-employed, although he has not returned to work at \nHusqvarna since he last worked there on July 14, 2020. Ark. Code Ann. Section 11-9-411 \n(2023 Lexis Repl.) gives the respondents the right to take a dollar-for-dollar credit/off-set \nagainst any disability or unemployment benefits any third-party(ies) paid to the claimant. See \nalso, Ark. Code Ann. Section 11-9-506 (2023 Lexis Repl.). The record reveals the claimant \napplied for unemployment benefits and represented on the application he signed on October 9, \n2020, among other things, that he had no physical disabilities that would prevent him from \nperforming his normal job duties.  \n            Consequently, this ALJ is unable to specifically determine the extent to which, if \nany, the claimant is entitled to medical benefits and related expenses, and indemnity benefits \n– specifically TTD benefits – based on the record before me at this time.   \n           Therefore, for all the aforementioned reasons, I hereby make the following: \n\nStanley R. Cheathem; AWCC H005060 \n13 \n \n                 FINDINGS OF FACT AND CONCLUSIONS OF LAW \n 1.  The Commission has jurisdiction of this claim.  \n 2.  The stipulations contained in the prehearing order filed March 1, 2023, which the  \n      parties affirmed on the record at the hearing, hereby are accepted as facts.  \n \n 3.  The claimant has met his burden of proof in demonstrating his job duties at Husqvarna  \n      constitute rapid repetitive motion. See, Parker; High Capacity Prods.; and Tyson  \n                 Foods, Inc., supra. \n \n  4.    The  claimant  has  met  his  burden  of  proof  in  demonstrating  his  rapid  repetitive  job \nduties \n       were the “major cause” of his disability or need for medical treatment of his right wrist.  \n5. The preponderance of the evidence in the record establishes the claimant’s rapid  \n              repetitive job duties aggravated his obviously preexisting osteoarthritis and  \n              scapholunate dissociation conditions since these conditions were asymptomatic prior \n              to performing the subject rapid repetitive job duties and became symptomatic and \n              required  medical  treatment  thereafter. See,  Parker;  High  Capacity  Prods.;  and \nTyson’s \n              Foods, Inc., supra.  \n \n6. Pursuant to Ark. Code Ann. Section 11-9-508 the claimant is entitled to payment of \nall  his  reasonably  necessary  medical  and  other  expenses  related  to  his  compensable \nright wrist injury.  \n \n7. The record before the ALJ is insufficient to deternine the extent of TTD benefits, if \nany, to which the claimant is entitled based on his compensable right wrist injury. \n \n8. The claimant’s attorney is entitled to a controverted fee. \n \nAWARD \n            The respondents are hereby directed to pay benefits in accordance with the “Findings of \nFact and Conclusions of Law” set forth above. All accrued sums shall be paid in lump sum without \ndiscount, and this award shall earn interest at the legal rate until paid pursuant to Ark. Code Ann. \nSection 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 \n(Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 (Ark. App. \n1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004). \n\nStanley R. Cheathem; AWCC H005060 \n \n14 \n \n           If  they  have  not  already  done  so  the  respondents  hereby  are  ordered  to  pay  the  court \nreporter’s invoice within twenty (20) days of their receipt of this opinion and order. \n               IT IS SO ORDERED. \n \n       _____________________________ \n                                                                                    Mike Pickens \n                                                                                    Administrative Law Judge","textLength":27863,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H005060 STANLEY R. CHEATEM, EMPLOYEE CLAIMANT HUSQVARNA OUTDOOR PRODUCTS, INC., EMPLOYER RESPONDENT SAFETY NAT’L CASUALTY CORP./ CORVEL ENTERPRISE COMP, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED JULY 12, 2023 Hearing conducted before th...","outcome":"granted","outcomeKeywords":["affirmed:1","granted:2"],"injuryKeywords":["repetitive","wrist","back","carpal tunnel"],"fetchedAt":"2026-05-19T23:05:16.605Z"},{"id":"alj-G903306-2023-07-11","awccNumber":"G903306","decisionDate":"2023-07-11","decisionYear":2023,"opinionType":"alj","claimantName":"Dale Bryant","employerName":"City Of North Little Rock","title":"BRYANT VS. CITY OF NORTH LITTLE ROCK AWCC# G903306 JULY 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Bryant_Dale_G903306_20230711.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Bryant_Dale_G903306_20230711.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G903306 \n \n \nDALE BRYANT, EMPLOYEE CLAIMANT \n \nCITY OF NORTH LITTLE ROCK, \n SELF-INSURED EMPLOYER RESPONDENT NO. 1 \n \nARK. MUN. LEAGUE, \n THIRD-PARTY ADMR. RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL DISABILITY \n TRUST FUND RESPONDENT NO. 2 \n \n \nOPINION FILED JULY 11, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  May  11,  2023,  in  Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented  by  Ms.  Laura  Beth  York  and  Mr.  Tanner  Thomas,  Attorneys  at \nLaw, Little Rock, Arkansas. \n \nRespondents No. 1 represented by Ms. Mary K. Edwards, Attorney at Law, North Little \nRock, Arkansas. \n \nRespondent  No.  2,  represented  by  Mr.  David  L.  Pake,  Attorney  at  Law,  Little  Rock, \nArkansas, excused from participation. \n \n \nSTATEMENT OF THE CASE \n On May 11, 2023, the above-captioned claim was heard in Little Rock, Arkansas.  \nA prehearing conference took place on  March 6, 2023.  The Prehearing Order entered \non that date pursuant to the conference was admitted without objection as Commission \nExhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations,  issues,  and \nrespective contentions were properly set forth in the order. \n\n2 \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  They are the following, which I accept: \n1. The previous decision is binding on this proceeding under the Law of the \nCase Doctrine. \n2. Claimant  reached  maximum  medical  improvement  and  the  end  of  his \nhealing period on August 1, 2022. \n3. Claimant  was  assigned  an  impairment  rating  of  fifty  percent  (50%)  to  the \nlower  extremity  in  connection  with  his  stipulated  compensable  right  knee \ninjury.  Respondents No. 1 accepted this rating and are paying permanent \npartial disability benefits pursuant thereto. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether Claimant is permanently and totally disabled. \n2. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n 1. On April 3, 2019, Claimant fell in the scope and course of employment and \ninjured  his  right  knee.    Respondents  No.  1  accepted  the  claim  as \ncompensable and paid for medical benefits. \n\n3 \n 2. An MRI on May 1, 2019, revealed a medial meniscus tear.  Claimant was \nsent  to  Dr.  Kirk  Reynolds,  who  performed  surgery  on  May  28,  2019.  \nClaimant  was  still  in  pain,  but  Dr.  Reynolds  released  him  at  maximum \nmedical   improvement   with   no   restrictions   and   a   zero   percent   (0%) \nimpairment  rating  on October  9,  2019.    Thereafter,  Claimant  requested a \nchange  of  physician  to  Dr.  Joel  Smith  and  underwent  another  MRI.  \nFollowing  the  MRI  and  conservative  treatment,  Claimant  underwent  total \nknee  replacement  surgery  on  September  23,  2021.    Still  in  pain,  he  was \nreferred by Smith to Dr.  Paul Edwards for additional treatment.  Edwards \nopined   that   Claimant   suffered   a   failed   total   knee   replacement   and \nrecommended  a  revision  surgery.  Following  this  procedure,  Claimant \nsuffered a massive hematoma on his right knee that required irrigation and \ndebridement. \n3. On  August  1,  2022,  Dr.  Edwards  placed  Claimant  at  maximum  medical \nimprovement and noted that he uses a cane, is in constant pain, and that \nhis right leg gives way at times.  Claimant underwent a functional capacity \nevaluation  that  reflected  that  he  gave  a  reliable  effort,  with  50  of  52 \nmeasures within expected limits, and showed that he could work within the \nSedentary  classification.    As  a  result,  Edwards  assigned  Claimant  a  fifty \npercent    (50%)    lower-extremity    rating    and    permanent    sedentary \nrestrictions.    Respondents  No.  1  accepted  this  rating  and  began  paying \nbenefits pursuant thereto. \n\n4 \n4. Claimant  is  a  64-year-old  man  with  a  ninth-grade  education.    His  entire \nwork  history  consists  of  heavy  manual  labor.    He  does  not  have  any \nappreciable  computer  skills.    Following  his  release  at  maximum  medical \nimprovement, he was terminated by the respondent employer, who could \nnot   accommodate   his   restrictions.      Claimant   requested   vocational \nrehabilitation  on  October  6,  2022.    Respondents  No.  1  accepted  this  on \nOctober 21, 2022, and sent him to Keondra Hampton with Systemetic.  In \na report dated November 17, 2022, Ms. Hampton related that she had met \nwith  Claimant.    She  opined  that  he  would  not  be  able  successfully to \nreturn  to  the  workforce  based  upon  the  records  that  she  had  reviewed.  \nHowever,  Respondents  No.  1  have  denied  that  he  is  permanently  and \ntotally disabled. \n5. Claimant contends that he is permanently and totally disabled as a result \nof  the  work  injury  that  occurred  on  April  3,  2019,  and  that  his  attorney  is \nentitled to an attorney’s fee. \n Respondents No. 1: \n 1. Respondents   No.   1   contend   that   Claimant    cannot   prove   by   a \npreponderance   of   the   evidence   that   he   is   permanently   and   totally \ndisabled. \n Respondent No. 2: \n 1. The Trust Fund defers to the outcome of litigation on the issue of whether \nClaimant is permanently and totally disabled.  Therefore, it does not owe a \n\n5 \nfee  on  any  indemnity  benefits  that  may  be  awarded  in  this  proceeding.  \nThe Trust Fund waives its right to attend the hearing thereon. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports,  deposition \ntestimony,  documents,  and  other  matters  properly  before  the  Commission,  and  having \nhad  an  opportunity  to  hear  the  testimony  of  Claimant  and  to  observe  his  demeanor,  I \nhereby  make  the  following  findings  of  fact  and  conclusions  of  law  in  accordance  with \nArk. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \npermanently and totally disabled. \n4. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to a controverted attorney’s fee under Ark. Code Ann. § 11-9-715 \n(Repl.  2012)  on  the  permanent  and  total  disability  benefits  awarded \nherein.  This is the responsibility of Respondents No. 1. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the Prehearing  Order  discussed  above,  exhibits  admitted  into \nevidence  in  this  case  were  Claimant’s  Exhibit  1, a  compilation  of  his  medical  records, \n\n6 \nconsisting of six abstract/index pages and 143 numbered pages\n1\n thereafter; Claimant’s \nExhibit  2,  his  vocational  evaluation  report,  consisting  of  one  index  page  and  seven \nnumbered  pages  thereafter;  Respondents  No.  1  Exhibit  1,  another  compilation  of \nClaimant’s  medical  records,  consisting  of  one  index  page  and 41  numbered  pages \nthereafter; and Respondents No. 1 Exhibit 2, the medical and indemnity payout histories \nin this claim, consisting of one index page and eight numbered pages thereafter. \n In  addition,  and  without  objection,  the  transcript  of  the  March  31,  2021, hearing \non this claim has been incorporated herein in its entirety by reference. \nAdjudication \n A. Procedural History \n An assessment of the issues at bar first requires a recounting of the procedural \nhistory of this matter.  On March 31, 2021, the first hearing was held on this claim.  The \nApril 20, 2021, opinion thereon contains the following findings of fact and conclusions of \nlaw: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth [below] are reasonable and are hereby accepted: \nA. The   employee/self-insured employer   relationship   existed   at   all \nrelevant times,  including  April  3,  2019,  when  Claimant  sustained a \ncompensable right knee injury. \nB. Claimant’s average weekly wage was $240.06. \n \n \n1\nPlaced  at  the  end  of  this  exhibit,  at  pages  127-45,  are  Claimant’s  treatment \nrecords  from  Concentra  Clinic  from  April  9,  2019,  through  May  3,  2019.  Claimant’s \n\n7 \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  additional  medical  treatment  in  the  form  of  a  partial  right  knee \nreplacement and related treatment. \nThis decision was not appealed.  The earlier opinion is thus binding on this proceeding \nunder  the  Law  of  the  Case  Doctrine;   and it  is res  judicata.   See  Thurman  v.  Clarke \nIndustries, Inc., 45 Ark. App. 87, 872 S.W.2d 418 (1994). \nB. Permanent and Total Disability \n Introduction.    Claimant  has now  contended  that  he  is  permanently  and  totally \ndisabled.  Respondents No. 1 have argued otherwise. \n Standards.  The parties have stipulated that Claimant sustained a compensable \ninjury to  h  is  right  knee.    This  is  a  scheduled  injury.   See  Ark.  Code  Ann.  §  11-9-\n521(a)(3)  (Repl.  2012).    Section  11-9-519(e)(1)  defines  “permanent  total  disability”  as \nfollows:  “inability, because of compensable injury or occupational disease, to earn any \nmeaningful wages in the same or other employment.”  A claimant who has sustained a \nscheduled injury is limited to the applicable allowances in § 11-9-521, and such benefits \ncannot be  increased  by  considering  wage-loss  factors.  Federal  Compress  &  Whse.  v. \nRisper, 55 Ark. App. 300, 935 S.W.2d 279 (1996). \n Arkansas Code Annotated § 11-9-102(4)(F)(ii) (Repl. 2012) provides: \n(a)  Permanent  benefits  shall  be  awarded  only  upon  a  determination  that \nthe   compensable   injury   was   the   major   cause   of   the   disability   or \nimpairment. \n \n(b)  If  any  compensable  injury  combines  with  a  preexisting  disease  or \ncondition or the natural process of aging to cause or prolong disability or a \nneed  for  treatment,  permanent  benefits  shall  be  payable  for  the  resultant \n \ncounsel is respectfully requested in the future to adhere to the Prehearing Order, which \nstates that medical records “must be arranged in chronological order.” \n\n8 \ncondition  only  if  the  compensable  injury  is  the  major  cause  of  the \npermanent disability or need for treatment. \n \n“Major cause” is more than fifty percent (50%) of the cause, and has to be established \nby a preponderance of the evidence.  Id. § 11-9-102(14).  “Disability” is the “incapacity \nbecause  of  compensable  injury  to  earn,  in  the  same  or  any  other  employment,  the \nwages which the employee was receiving at the time of the compensable injury.”  Id. § \n11-9-102(8). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Evidence.  Claimant is 64 years old.  He was unsure of when he left school; but \nhe was certain that he  completed the ninth  grade.  His testimony was that he dropped \nout “because I had a family that I had to take care of.”  Despite his lack of an extensive \nformal education, Claimant is able to read and write.  He joined the United States Army \nin the 1970s and completed basic training.  But because of an issue that arose involving \nhis  two  minor  children,  to  whom  he  was  a  single  parent,  he  received  a  Less-Than-\nHonorable  Discharge  in  order  to  rejoin  them.    Eventually,  the  status  of  his  discharge \nwas  changed  to  Honorable.  Claimant eventually  married.   His  children are  grown  and \ngainfully employed. \n\n9 \n The   work   history   of   Claimant   shows   that   he   has   been   employed   in   the \nconstruction  industry.    Moreover,  he  has  been  a  dishwasher,  a  security  guard,  and a \njanitor.  His construction job involved “walking the beams, hanging jacks, help[ing] build \nthe deck, [and] help[ing] them with the concrete.”  In this capacity, he had to walk on an \nelevated surface while wearing a safety harness.  His custodial positions have involved \nvacuuming, mopping, and emptying trash, among other tasks. \n The  following  exchange  took  place  during  Claimant’s  testimony  in  the  2021 \nhearing: \nQ. Describe what happened on April 3, 2019. \n \nA. I was wearing a back—you have to have a back-vac.  It’s a vacuum \ncleaner  that  you  strap  around  your  back.    And  I  was  doing  stairs \nand I got entangled in the cord and lost my balance. \n \nQ. Did you fall all the way to the ground? \n \nA. No.  I just did the next step and it twisted and popped. \n \nQ. Okay. \n \nA. And after that, I was having a lot of pain, and so I reported it to my \nsupervisor and we filled out an accident report. \n \nQ. What body part did you injure? \n \nA. My right knee. \n \n Thereafter, he underwent an MRI of his right knee, which showed that he had a \nmeniscal  tear  and  bone  fragments  in  the  joint.    He  began  treating  with  Dr. Kirk \nReynolds.  On May 28, 2019, Reynolds performed arthroscopic surgery.  Following this, \nClaimant  went  to  physical  therapy.  However,  the  surgery  did  not  alleviate  his  knee \nproblems.  As  Claimant  testified, “[i]t  [his  knee]  never  got  right.”    Eventually,  Dr. \nReynolds released Claimant to light duty and then full duty.  Claimant’s testimony during \n\n10 \nhis  first  hearing  was  that  he  had  problems  performing  his  duties  at  the  library:   “I  was \nhaving difficulty with the stairs and moving at a  real fast pace and a lot of walking and \nstanding.”  He  disagreed  with  the  decision  of  Reynolds  to  return  him  to  regular  duty.  \nClaimant  elaborated  at  that  time:   “I’m  still  hurting,  I’m  still  having  a  lot  of  pain,  you \nknow, doing my job.  But I have to do it because I’m raising my grandkids, so I’ve got to \ndo it.”  Later, he stated: \nIt's pain, and after I do it, then it might be the next day I’m having a difficult \ntime getting out of the bed or I’m putting Icy Hot or Ben Gay or something \nand then wrapping it up to keep the heat in, just anything to try to make it \nfeel  better.    And  taking  Advil,  Tylenol,  you  know,  and  elevating  it.    And  I \njust go ahead on and go back to work. \n \n Following  a  change-of-physician order  that  Claimant  sought  and  received  from \nthe  Commission,  he  began  treating  with  Dr.  Joel  Smith.    The  first  treatment  Smith \nadministered  was  an  injection  of  the  knee.    Claimant’s  testimony  during  the  2021 \nhearing was that he obtained relief from this; in fact, he felt like he no longer needed his \nknee brace, which he began using following the accident.  But the effects of the injection \ndid not last.  Claimant had to resume use of the brace.  He wanted to undergo a second \ninjection.    But  other  than  additional  physical  therapy,  which  Claimant  stated  that  he \nreceived,  the  treatment  that  Dr.  Smith  recommended  consisted  of  a  partial  right  knee \nreplacement.    Respondents  No.  1  refused  to  approve  this  surgery;  but  as  alluded  to \nabove, the undersigned in the previous opinion directed that they do so. \n The  medical  records  in  evidence  show  that  the  surgery  that  Smith  ended  up \nperforming,   on   June   17,   2021,   was   a   total—not   partial—knee   replacement.  \nNonetheless, Respondents No. 1 covered this treatment.  Because Claimant developed \narthrofibrosis, Dr. Smith had to operate again on September 23, 2021.  In that instance, \n\n11 \nhe  performed  a  right  knee  manipulation  under  anesthesia.    However,  this  did not \nameliorate his symptoms. \n Dr.  Paul  Edwards  on  December  20,  2021,  diagnosed  Claimant  as  having \na”[f]ailed  right  total  knee  replacement.”  He  recommended  that  a  revision  total  knee \nreplacement take place, adding:  “I think he really has 2 issues here:  Progression of an \nosteolytic  lesion  in  the  lateral  femoral  condyle  with  likely aseptic  loosening  of  implants \nand  flexion  instability.”  Edwards  also  suggested  that  Claimant  wear  a  hinged  knee \nbrace.    The  doctor  placed  Claimant  at  light  duty,  pointing  out  that  he  could  ambulate \nwith  aid  of  a  cane.  The  revision  knee  replacement  occurred  on  February  3,  2022.  \nAsked  at the hearing  how  he  fared  after  this  operation,  Claimant responded:   “It  didn’t \ndo good at all.”  Unfortunately, Claimant developed a hematoma that grew to the point \nthat, per Dr. Edwards on March 4, 2022, “[h]e ha[d] significant excruciating pain.”  As a \nconsequence,  Claimant  had  to  undergo  a  fifth  surgical  procedure:    an  irrigation  and \ndebridement  of  the  right  knee.   This  occurred  on  March 7, 2022.   Edwards’s operative \nnotes  show  that  the  hematoma  was “[v]ery  large”:    comprised  of  150  ml  of  congealed \nblood.  Thereafter, in visits to Dr. Edwards, Claimant presented with steadily improving \npain.    On  May  2, 2022,  he  was  restricted  to  light,  sit-down  duty.    He  was  continued  in \nphysical therapy.  Dr. Edwards found Claimant to be at maximum medical improvement \n(“MMI”)  as  of  August  1,  2022.    In  his  report  on  that  date,  he  noted  that  Claimant \npresents with “persistent constant pain all the time . . . [and] numbness[/]tingling in the \ndistal  extremity.”  The restrictions  assigned  as  of  that  date  (which were  never  revised) \nincluded (1) seated work only/mainly, (2) no squatting/kneeling/twisting, (3) No climbing \nstairs/ladders,  (4)  no  prolonged  standing/walking,  (5)  elevation  of  right  lower  extremity \n\n12 \nwhenever possible, (5) use of crutches/cane/walker, and (6) no twisting/pushing/pulling.  \nThe doctor added:  “If no job is available with the stated modified duties, consider Dale \nBryant to be off work.”  On August 24, 2022, Edwards revised the MMI date to August 8, \n2022,  and  assigned  Claimant  an  impairment  rating  of  fifty  percent  (50%)  to  the  lower \nextremity. \n Claimant underwent a functional capacity evaluation (“FCE”) on August 8, 2022.  \nHe  gave  a  reliable  effort,  with  50/52  consistency  measures  within  expected limits,  and \ndemonstrated  the  ability  to  work  in  the  Sedentary  classification.    The  FCE  report \nincludes the following language: \nWhen  comparing  his  demonstrated  physical  abilities  with  that  of  a \nwritten job description for the position of Maintenance Assistant with \nthe   City   of   North   Little   Rock,   he   DID   NOT  meet   the   following \ndemands:  Frequently lift 40-50 lbs. and occasionally lift 140 lbs. \n \n(Emphasis in original) \n The testimony of Claimant was that before he was given permanent  restrictions, \nhe was given sit-down duty at his job site, Laman Library.  There, he was assigned the \ntask  of  tracing  shapes  onto  pieces  of  paper  and  then  cutting  them out.    He  was  not \ngiven  any  of  his  normal  custodial  duties—which  stands  to  reason,  since  they  were \nclearly  beyond  the  restrictions  assigned  by  Edwards.  Per  Claimant,  once  it  was \ndetermined that he could only work at the Sedentary level, he was terminated by Crystal \nGay,  the  manager  of  Laman  Library.  She  explained  to  him  that  there  was  no  longer \nanything  that  he  could  do  there,  in  light  of  his  restrictions.    He  never  returned  to  his \nnormal duties there. \n Claimant  agreed  to  participate  in  vocational  rehabilitation.    On  November  11, \n2022,  he  met  with  Keondra Hampton,  MS,  CRC,  who  is  a  vocational  rehabilitation \n\n13 \nconsultant.  Her report, which details his educational, vocational, and medical histories, \nreads in pertinent part: \nEmployment History \n \n. . . \n \nAccording  to  the  DOT  [United  States  Department  of  Labor,  Dictionary  of \nOccupational Titles], Mr. Bryant’s work history is classified as unskilled to \nsemi-skilled  and  he  has  no  transferrable  skills.    Mr.  Bryant  has  the \nvocational  profile  of  an  individual  with  one  year  of  high  school  education \nand  functional  limitations  with  the  inability  to  perform  posture  tasks \naccording to the FCE.  The ability to perform work within similar fields with \nspecific  vocational  preparation  (SVP)  of  unskilled  to  semiskilled  is  not \nprobable. \n \nStatements Regarding Returning to Work and/or Retraining \nMr. Bryant stated he has a desire to work, however, he is unable to return \nto  any  job  that  will  require  him  to  perform  outside  of  his  functional \nlimitations.  He said, “I would not want to get a job, just to turn around and \nget  fired  due  to  my  right  knee.”  Mr.  Bryant  reported  he  is  open  to \nreceiving any vocational rehabilitation services if he is capable of finding a \njob within his functional limitations. \n \nAnalysis, Goals, and Recommendations \nBased  on  the  FCE,  Mr.  Bryant  is  capable  of  performing  work  in  the \nsedentary category.  Due to his limited education and work history profile \nof  unskilled  to  semi-skilled  occupations,  Mr.  Bryant  does  not  have  any \ntransferrable  skills  that  would  transfer  to  sedentary  jobs.    I  recommend \nbasic  computer  skills  training  for  Mr.  Bryant  to  be  successful  in  a \nsedentary category of employment.  In my opinion, further assessment of \nthe Wide Range Achievement (Wrat4) and/or [an] intelligence assessment \nis  recommended  to  determine  Mr.  Bryant’s  training  ability.    Considering \nMr. Bryant has a ninth-grade education, adult education services are also \nrecommended with the possibility of obtaining his GED. \n \nIt is my opinion Mr. Bryant would not be able to successfully return to the \nworkforce based on the records reviewed  without the recommendation of \ntraining and assessments. \n \n On  November  28,  2022,  Claimant  began  undergoing  pain  management  at  Pain \nTreatment Centers of America.   On that day, he rated his pain as  ranging from 2/10 to \n10/10,   and   averaging   6/10.      Dr.   Noemi   Ramsay   prescribed   Hydrocodone   and \n\n14 \nrecommended a genicular nerve block.  Respondents, however, would not approve this.  \nAlthough Claimant, per the report, “denied use of any illicit drug,” the report contains the \nfollowing notation:  “Advised he will need to get a medical marijuana card if he continues \nto  use  marijuana.”  When  Claimant  returned  to  the  clinic  on  January  4,  2023,  he \ninformed  Jordan  Hardin,  P.A.,  that  while  his  pain  had  not  changed  significantly  since \ntheir  previous  encounter,  it  was  now  a  constant  10/10.    In  his  testimony,  Claimant \nrelated that he tries not to take Hydrocodone unless he has to.  He related that he used \nhis primary care physician to get his pain management referral. \n Asked at the hearing about the present condition of his knee, he responded: \nI  wear  a  sleeve  that’s  supposed  to  stop  the  swelling.    I  don’t  get  around \ntoo good, I’m hurting all the time.  I ice it, use heat, elevate it.  That’s all I \ncan  do  and  try  to  do  what  Marshall  at  physical  therapy,  he  showed  me \nsome exercises, and I do my best to do those. \n \n Use of the sleeve causes the knee to swell.  Once he removed it, he applies  ice \nto  the  knee  and  takes  medication.    He  uses  a  cane  now  because  he  becomes “off \nbalance”  at  times.    Claimant’s  knee  condition  has “gone  out”  and  caused  him to fall  at \ntimes.  He can only stand for 10 to 15 minutes at a time, and can only walk for a limited \ndistance.    According  to  Claimant,  he  avoids  driving  if  possible  because  his  right  knee \nproblems make it difficult to operate the accelerator and brake. \n In describing his daily activities, he related: \n \nMostly, I just try and do something to relieve the pain on my knee.  I try to \ndo exercises.  I welcome company if I ever get it, even if it’s the mailman.  \nBut I lost all that social life, so I don’t do anything. \n \nAsked  if  the  work-related  accident  in  question  changed  his  life,  Claimant  became \nemotional, stating:  “No fishing, no social life, no bowling, no intimacy with my wife, none \nof that.  Everything  changed.”  Claimant has been approved to receive Social Security \n\n15 \nDisability  benefits.    He  does  not  believe  that  he  could  return  to  his  former  job  in  the \nconstruction   industry.      While   he   admitted   that   he   has   had   pre-existing   health \nproblems—including  hypertension  and  the  need  for  a  CPAP  machine  at  night—these \ndid not  prevent  him  from  performing his  custodial  duties.    Claimant  does  not  think  that \nhe could go back to any line of work that he was in previously.  Under questioning from \nRespondents,  he  agreed  that  previously,  while  receiving  Social  Security  disability \nbenefits, he was able to return to the working world—in his capacity as a security guard.  \nThe following exchange took place: \nQ. So have you tried to work with Social Security to get you back into \nthe workforce now? \n \nA. Ma’am, they let me go at the library because it was nothing I could \ndo.  Who’s gonna hire me now? \n \n. . . \n \nQ. So  is  it  fair  to  say  that  mobility  is  a  concern  for  you  with  getting  a \njob, like being able to move around, is that a concern for you about \ngetting a job? \n \nA. Moving around, bending, lifting, standing, walking, doing the things \nthat I used to do on a job.  If I lied to them,  how long would I last, \nwhat, a day? \n \nClaimant  also  acknowledged  that  he  applied  for  unemployment  benefits.   But  he  was \nturned down. \n Later during his cross-examination, the following exchange occurred: \nQ. You testified earlier that you don’t feel like you could do any work at \nthe library, is that a fair statement? \n \nA. Yes. \n \nQ. Do you think you could check out books at the library? \n \n\n16 \nA. Ma’am,  I  don’t  know  how  to  check  out  any  books.    In  fact,  how \ncould  I  help  somebody  check  out  a  book  when  I  could  barely  get \naround  myself?    And  then  on  that,  if  you  check  out a  book,  you’re \ngonna have to go up there, from what I was seeing, it’s keyed [into] \nthose  computers,  and  I  don’t  know  anything  about  that.    They \nprobably wouldn’t get the book. \n \nHe  returned  to  this  subject  later,  summarizing:   “I  don’t  have  any  computer  skills.    My \neducation is not that good.”  Claimant did not think he could hold down a job answering \na  phone  because,  inter  alia,  his  spelling  is  poor.  In  a  related  vein,  the  following \nexchange took place on redirect examination: \nQ. Did  you  work  every  day  with  the  people  at  the  Laman  Library \ntogether with them?  Did you see them every day at work? \n \nA. Yes. \n \nQ. They were fairly able to assess your abilities, correct? \n \nA. Yes. \n \nQ. Did they ever offer you the opportunity to check out books? \n \nA. No. \n \nQ. Were you allowed to play around on computers at Laman Library? \n \nA. No.  I tried to get them to show me how to use the computer.  It was \none  guy  up  there,  and  he  said  he  would  try,  but  nothing  ever \nhappened. \n \nRespondents have never offered Claimant computer skills training, despite the fact that \nHampton  recommended  that  very  thing  in  her  vocational  evaluation.  Moreover,  they \nhave not offered additional training or testing of any type. \n With  respect  to  his  motivation  to  return  to  the  workforce,  Claimant  gave  the \nfollowing testimony: \nHow could I look for a job when I’m taking medications and I have the ice, \nheat?    I  would  love  to  work  because  working,  it  wasn’t  something  that  I \n\n17 \nreally enjoyed my job, it was something that was needed to pay my bills, \nto support my family, I mean, you know.  That’s why I never missed a day \nand  I  never  was  late.    And  whatever  they  asked  me  to  do,  whether  I \nthought  it  was  my  duty  or  not,  I  did  it.    I  performed  it  to  the  best  of  my \nability I did it.  I didn’t care what it was.  If it was picking up poop, I did it. \n \n When questioned by the Commission, Claimant stated that he would be open to \nreceiving vocational rehabilitation retraining, but “[t]oday I just can’t see it.  I mean, I’m \njust  not  able  to—I  know  I  would  love  to,  but  I’m  just  not  able  to  hold  down  a  job  right \nnow.”  In  his  testimony,  he  again  became  emotional  when  he  stated, “I  don’t  think  I’m \nretrainable,” and related that  in the course of his unsuccessful attempt to get his GED, \nhe  discovered  that  the  amount  of  education  he  actually had  was  markedly  less  than \nwhat one would expect, based on the number of grades he had completed. \n Discussion.    Claimant  is  a  credible  witness.    This  is  the  same  finding  I  made  in \nhis  previous  hearing.    His  testimony,  and  the  balance  of  the  credible  evidence  in  this \nmatter, reflect that he is 64 years old and  completed the ninth grade.   His work history \nhas consisted of stints as a construction worker, dishwasher, security guard, and janitor.  \nOn April 3, 2019, he suffered a compensable right knee injury.  As a result, he  has had \nto undergo five separate surgical procedures on that knee—including both a total knee \nreplacement and a revision total knee replacement.   Ultimately, on August 1, 2022, he \nreached the end of his healing period.  Thereafter, he began pain management—which \nhe still receives. \n He  was  assigned  an  impairment  rating  of  fifty  percent (50%)  to  the  lower \nextremity.        His    restrictions    include:        (1)    seated    work    only/mainly,    (2)    no \nsquatting/kneeling/twisting,    (3)    No    climbing    stairs/ladders,    (4)    no    prolonged \nstanding/walking,  (5)  elevation  of  right  lower  extremity  whenever  possible,  (5)  use of \n\n18 \ncrutches/cane/walker,  and  (6)  no  twisting/pushing/pulling.    These  comport  with  the \nfindings  of  his  FCE,  which  reflect  that  he  gave  a  reliable  effort  and  demonstrated  the \nability  to  work  only  in  the  Sedentary  classification.    Up  until  then,  the  light-duty  work \nClaimant had been given at his place of employment consisted of cutting out figures that \nhad been traced onto paper.  When the above findings made it clear that he could not \nreturn  to  his  custodial  work  at  the  library,  he  was  terminated.    Claimant  underwent  a \nvocational  rehabilitation  evaluation.    I  credit  the  opinion  given  by  Hampton,  the \nevaluator,  that  he “does  not  have  any  transferrable  skills  that  would  transfer  to \nsedentary jobs.”  While she recommended further assessments to determine his training \nability,  and  basic  computer  skills  training,  these  have  not   been  offered  to  him.  \nRegardless,  it  was  Claimant’s  sad,  frank  belief  that  his  poor  educational  history  would \nlikely not make any re-training efforts successful. \n While Claimant is motivated to return to the workforce—as his credible testimony \nand  vocational  history  reflects—the  possibility  of  such  a  return  does  not  look  at  all \npromising,  in  light  of  the  above  evidence.  To  the  contrary,  evidence  shows  that  he  is \nclearly unable to  go back to the working world.  In sum, I find that he has proven by a \npreponderance of the evidence that he is permanently and totally disabled.  In so doing, \nI  find  that  Claimant’s  compensable April  3,  2019,  compensable  right  knee  injury is  the \nmajor cause of his disability. \nC. Attorney’s Fee \n One of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation  on  the  party  who  makes  litigation  necessary.  Brass  v.  Weller,  23  Ark.  App. \n193,  745  S.W.2d  647  (1998).    Since  Claimant  has  proven  herein  his  entitlement  to \n\n19 \npermanent   and   total   disability   benefits,   and   because   Respondents   No.   1   have \ncontroverted this, he has shown that his attorney should be awarded a controverted fee \nat  their  expense  under  Ark.  Code  Ann.  §  11-9-715  (Repl.  2012)  on  those  indemnity \nbenefits awarded herein. \nCONCLUSION AND AWARD \n Respondents  No.  1  are  directed  to  pay/furnish  benefits  in  accordance  with  the \nfindings of fact set forth above.  All accrued sums shall be paid in a lump  sum without \ndiscount, and this award shall earn interest at the legal rate until paid, pursuant to Ark. \nCode Ann. § 11-9-809 (Repl. 2002).  See Couch v. First State Bank of Newport, 49 Ark. \nApp. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a  25  percent  (25%)  attorney’s  fee  awarded \nherein,  one-half  of  which  is  to  be  paid  by  Claimant  and  one-half  to  be  paid  by \nRespondents  No.  1  in  accordance  with  Ark. Code  Ann.  §  11-9-715  (Repl.  2012).   See \nDeath & Permanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d \n463 (2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":34132,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G903306 DALE BRYANT, EMPLOYEE CLAIMANT CITY OF NORTH LITTLE ROCK, SELF-INSURED EMPLOYER RESPONDENT NO. 1 ARK. MUN. LEAGUE, THIRD-PARTY ADMR. RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED JULY 11, 2023 Hearing be...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T23:05:06.253Z"},{"id":"alj-H101998-2023-07-11","awccNumber":"H101998","decisionDate":"2023-07-11","decisionYear":2023,"opinionType":"alj","claimantName":"Thurman Farris","employerName":"Nice Pak Products, Inc","title":"FARRIS VS. NICE PAK PRODUCTS, INC. AWCC# H101998 JULY 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Farris_Thurman_H101998_20230711.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Farris_Thurman_H101998_20230711.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H101998 \n \n \nTHURMAN FARRIS, EMPLOYEE CLAIMANT \n \nNICE PAK PRODUCTS, INC., \n EMPLOYER RESPONDENT \n \nHARTFORD UNDERWRITERS INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JULY 11, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on  July 7, 2023, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se. \n \nRespondents  represented  by  Mr.  A.  Gene Williams,  Attorney at  Law,  Jonesboro, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  July  7,  2023,  in \nJonesboro, Arkansas.  No testimony was taken in the case.  Claimant was pro se.  \nWithout  objection,  the  Commission’s  file  on  the  claim  has  been  incorporated \nherein in its entirety by reference. \n The record reveals the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  February  24,  2021,  Claimant \npurportedly  suffered  an  injury  to  his  upper  torso on February  20,  2021, when  he \nbecame  pinned  between  two  forklifts  at  work.  According  to  the  Form  AR-2  filed \n\nFARRIS – H101998 \n \non  November  17,  2021,  Respondents  accepted  the  claim  as  a  medical-only  one \nand furnished benefits pursuant thereto. \n Then-counsel Daniel Wren entered his appearance before the Commission \non behalf of Claimant on March 11, 2021.  No Form AR-C accompanied this filing, \nhowever.    Respondents’  counsel  followed  suit  on  June  3,  2021.    On  January  4, \n2022  , Wren moved to withdraw from his representation of Claimant.  In an order \nentered  on  January  14,  2022,  the  Full  Commission  granted  the  motion  under \nAWCC Advisory 2003-2. \n Claimant  sent  a  handwritten  communication  that  was  received  by  the \nCommission on July 1, 2022.  It reads: \n6-  23-22 \n \nHi: \n \nMy name is Thurman Farris. \nI want you to open my case. \n \nMy number \n870-317-3317 \n \n/s/ Thurman Farris \nThank you \n \nThe   Legal   Advisor   Division—to   whom   the   file   was   initially   assigned—sent \nquestionnaires   to   the   parties.      Both   responded   by   agreeing   to   mediate.  \nRespondents’ counsel  went  further,  writing  on  July  20,  2022:   “We  have  no  clue \nwhat Mr. Farris wants.   He was released [from] medical care in September 2021 \nand  we  have  heard  nothing  from  him  since.”    At  a  July  28,  2022, legal  advisor \n\nFARRIS – H101998 \n \nconference that had been scheduled, any outstanding issues were resolved.  The \nfile was returned to the Commission’s general files that same day. \n The  record  reflects  that  no  further  action  took  place  on  this  claim  until \nMarch 27, 2023, when Respondents filed the instant Motion to Dismiss.  Therein, \nthey  argued  that  dismissal  of  the  claim  was  warranted  under  AWCC  R.  099.13, \nand  alleged  that  Claimant had  not  prosecuted  his  claim  for  eight  months.    On \nMarch  28,  2023,  my  office  wrote  Claimant,  asking  for  a  response  to  the  motion \nwithin 20  days.    This  certified  letter  was  claimed  on  April  6,  2023,  by  someone \nwith   an   illegible   signature;   and   the   first-class   letter   containing   the   same \ncorrespondence,  likewise  sent  to  the  address  supplied  to  the  Commission  by \nClaimant,   was   not   returned.      Nonetheless,   no   response   from   him   was \nforthcoming.      On   May   15,   2023,   a   hearing   on   Respondents’   motion   was \nscheduled for July 7, 2023, at 10:30 a.m. at the Craighead County Courthouse in \nJonesboro,  Arkansas.    The  Notice  of  Hearing  was  sent  to  Claimant by  certified \nand  first-class  mail  to  the  same  address  as  before.    In  this  instance,  Claimant \nsigned  for  the  certified  letter  on  May  18,  2023.    The  first-class  letter  was  never \nreturned.    Thus,  the  evidence  preponderates  that  the  notice  reached  its  proper \ndestination. \n The hearing proceeded as scheduled on July 7, 2023.  Claimant appeared \nat the hearing and testified, objecting to a dismissal.  He asked that, in the event \nthat  this  matter  is  not  dismissed,  a  hearing  be  scheduled  on  his  entitlement  to \nadditional benefits.  Respondents, in turn, argued for dismissal under the Rule 13. \n\nFARRIS – H101998 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The  Arkansas Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \n2. No Form AR-C has ever been filed in connection with this matter. \n3. No other document before the Commission in this matter constitutes \na  claim  for  additional  benefits  under  Ark.  Code  Ann.  § 11-9-702(c) \n(Repl. 2012). \n4. Respondents’ Motion  to  Dismiss  is  denied  because  no  claim  exists \nto be subject to dismissal. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove  by  a  preponderance  of  the  evidence  that  this matter  should  be  dismissed.  \n\nFARRIS – H101998 \n \nThis  standard  means  the  evidence  having  greater  weight  or  convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n No  Form  AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing a \n“formal  claim.”   See  Yearwood  v.  Wal-Mart  Stores,  Inc.,  2003  AR  Wrk.  Comp. \nLEXIS  739,  Claim  No.  F201311 (Full  Commission  Opinion  filed  June  17,  2003).  \nSee also Sinclair v. Magnolia Hospital, 1998 AR Wrk. Comp. LEXIS 786, Claim No. \nE703502 (Full Commission Opinion filed December 22, 1998)(a claim is “typically” \nfiled via  a  Form  AR-C).    While  a  Form AR-1  was  filed,  that  does  not  suffice  to \ninstigate a claim.  Id. \n Per Ark. Code Ann. § 11-9-702(c) (Repl. 2012): \nA claim for additional compensation must specifically state that it is \na  claim  for  additional  compensation.    Documents  which  do  not \nspecifically  request  additional  benefits  shall  not  be  considered  a \nclaim for additional compensation. \n \n(Emphasis added)  See White Cty. Judge v. Menser, 2020 Ark. 140, 597 S.W.3d \n640. \n My  review  of  the  Commission’s  file  discloses  no  document  sufficient  to \nconstitute a filing of a claim for additional benefits under the standard cited above.  \nBecause  no  claim  has  been  filed,  it  follows  that  there  is  no  claim  subject  to \ndismissal  per Respondents’  motion.    The Motion  to  Dismiss  thus  must  be,  and \nhereby is, denied. \n\nFARRIS – H101998 \n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, the Motion to Dismiss is hereby denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7643,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H101998 THURMAN FARRIS, EMPLOYEE CLAIMANT NICE PAK PRODUCTS, INC., EMPLOYER RESPONDENT HARTFORD UNDERWRITERS INS. CO., CARRIER RESPONDENT OPINION FILED JULY 11, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on July 7, 2023, in Jonesboro...","outcome":"dismissed","outcomeKeywords":["dismissed:6","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:05:08.321Z"},{"id":"alj-H207527-2023-07-11","awccNumber":"H207527","decisionDate":"2023-07-11","decisionYear":2023,"opinionType":"alj","claimantName":"Michael Jenkins","employerName":"Fence World Inc","title":"JENKINS VS. FENCE WORLD INC. AWCC# H207527 JULY 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JENKINS_MICHAEL_H207527_20230711.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JENKINS_MICHAEL_H207527_20230711.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207527 \n \nMICHAEL KEVIN JENKINS, EMPLOYEE       CLAIMANT \n \nVS. \n \nFENCE WORLD INC., EMPLOYER            RESPONDENT  \n \nBRIDGEFIELD CASUALTY INSURANCE COMPANY/ \nCARRIER/SUMMIT CONSUSTING, LLC, TPA           RESPONDENT  \n \nOPINION FILED JULY 11, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 16\nth\n day of May, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant  is  represented  by  Mr.  B.  Tanner  Thomas,  Attorney-at-Law,  Little  Rock, \nArkansas. \n \nRespondents  are  represented  by  Mr.  Jason  M.  Ryburn,  Attorney-at-Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  conducted  on  the 16\nth\n  day  of  May,  2023,  where  the  claimant \ncontended  he  was  injured  in  a  motor  vehicle  accident  that  occurred  during  his \nemployment  and  that  his  injuries  were  compensable;  that  he  was  entitled  to  medical \nbenefits,  temporary  total  benefits,  and  attorney  fees  as  a  result  of  the  accident. The \nrespondents contended that the claimant’s current conditions and his need for treatment \nwere not related to the May 11, 2022, motor vehicle accident; that the claimant suffered \nfrom  pre-existing and unrelated  conditions;  that  the  claimant  returned to  work after the \naccident and that, consequently, no TTD was owed.  A copy of the Prehearing Order was \nmarked “Commission Exhibit 1” and made part of the record without objection.  The Order \nprovided   that   the   parties   stipulated   that  the  Arkansas  Workers’  Compensation \n\nJENKINS – H207527 \n \n2 \n \nCommission  had  jurisdiction  of  the  within  claim  and  that  an  employer/employee \nrelationship existed on May 11, 2022, the date of the claimed injury in question.  At the \ntime of the hearing, the parties were able to stipulate that the claimant was earning an \naverage  weekly  wage  of  $676.00  and  that  consequently,  the  TTD/PPD  rates  for  the \nclaimant were $451.00 / $338.00, respectively.       \n The  claimant’s  and  respondent’s  responses  were  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \nobjection.  The sole witness was Michael Kevin Jenkins, the claimant.  From a review of \nthe record as a whole, to include medical reports and other matters properly before the \nCommission, and having had an opportunity to observe the testimony and demeanor of \nthe witness, the following findings of fact and conclusions of law are made in accordance \nwith Arkansas Code Annotated §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That an employer/employee relationship existed on May 11, 2022, the date of \nthe  claimed injuries.   At  the  time  of  the  claimed  injury,  the  claimant  earned \nan  average   weekly  wage   of   $676.00,  sufficient  for  TTD/PPD  rates  of \n$451.00 /  $338.00 respectively. \n \n3.  The respondents are estopped from denying the responsibility of the visit to the \nUAMS  ER  on  May 11,  2022, notwithstanding  the  fact  that the  injury  was  not \nfound   to  be   compensable,   and   that   the  respondents   are   consequently \nresponsible  for  said  visit.    However,  the  respondents  are  not  found  to  be \nresponsible for the return visit to the UAMS ER on May 14, 2022. \n  \n4.  That the claimant has failed to satisfy the required burden of proof that his claim \nof an injury which constituted a strain to his right lower leg and any remaining \nclaim of an injury to the right lower leg and knee is compensable. \n \n5.  That the claimant has failed to satisfy the required burden of proof to show that \nthe remaining claims for injuries to various body parts are compensable.  \n\nJENKINS – H207527 \n \n3 \n \n6.  That the question for the medical treatment for the claimed injuries are found \nto be moot, with the exception of the initial visit to the UAMS ER on May 11, \n2022. \n  \n7.  That the claimant has failed to satisfy the required burden of proof to show he \nis entitled to TTD. \n \n8.  The question of attorney fees allowed pursuant to Arkansas Code Annotated \n§11-9-715, is found to be moot. \n \n9.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n The  Prehearing  Order,  along  with  the  prehearing  questionnaires  of  the parties \nwere admitted into the record without objection.  The claimant submitted one exhibit that \nwas  admitted  into  evidence  without  objection  and  primarily  contained  medical  records, \nalong with a copy of the accident report.   The respondents exhibit one was admitted over \nthe  objection  of  the  claimant  and  was  an  Opinion  previously  entered  in  regard  to  a \nprevious workers’ compensation claim by the claimant in regard to the claimant’s right \nwrist.  The respondents also submitted a copy of the deposition of the claimant that was \nadmitted without objection.  \n The claimant was the sole witness and testified that he attended high school but \nnever graduated and never obtained a GED, but attended a “special class.”  He had spent \nmost of his working life, painting, landscaping, working for a machine shop, working for \nHoward Garner Fencing, and had also learned to weld.  Regarding the accident on May \n11, 2022, the claimant testified that there was a job in the England/Scott area where they \nwere going to build a fence and while driving there, a women pulled out of the driveway \nof the New Life Church, and the claimant slammed into her.  He did not immediately go \nto the hospital but sat there waiting for the fire department to get him out of the truck he \n\nJENKINS – H207527 \n \n4 \n \nwas driving.  An ambulance came and picked up the women in the other vehicle and took \nher to the hospital.  The claimant talked to Brachman, a guy in the office at work, who told \nhim  to  hang  on,  and  who  printed  off  the  insurance  papers  and  brought  them  to  the \naccident scene.  The fire department finally opened the door of the claimant’s vehicle and \nhe was helped towards the vehicle of Luke Brachman, the gentleman who brought the \ninsurance papers to the accident scene.  The claimant was later taken to the emergency \nroom at UAMS and dropped off by someone. (Tr. 5-10) \n The claimant testified that the UAMS ER treated his leg, took X-rays, and also an \nMRI.  The claimant’s main complaints were the swelling in the calf of his leg, his lower \nback,  hip,  and  his  neck  and  he  thought  he  was  given  a  muscle  relaxer.    He  was  later \ntreated  at  Pinnacle  Spine  Clinic  and  Flex  Worx.    He  also  remembered  going  back  to \nUAMS for a second time, again with complaints regarding his back, legs, and neck.  He \nalso remembered being treated at Flex Worx on May 25\nth\n by Sandy Cleveland, and his \nmain  complaints  were  hip,  neck,  and  back,  with  continued  physical  therapy,  and  who \neventually recommended an MRI.  (Tr. 11-13) \n He was eventually referred to Dr. Glenn Crosby for a single visit and then referred \nto Pinnacle Spine by his “injury lawyer” for his third-party claim where he was seen by \nDoctor  Hood.  (Tr.  14)    He  stated  that  he also  saw  Dr.  Brian  Reece,  who  reviewed  the \nsecond MRI of his back, hip, neck and knee.  The claimant stated he saw the MRI and he \nhad a torn disc in his back, and they made an incision in his neck and back.  Afterwords, \nhe still had problems with his right hip, knee, and back.  He felt the need for surgery was \nbased on the MRI.  He was still hurting in his hip and below his knee but was feeling a \nlittle better in his neck and back.  (Tr. 15-17) \n\nJENKINS – H207527 \n \n5 \n \n The  claimant  was  off  work  for  the  first  week  or  two.  He  was  then  placed \non light-duty and limited to a lift of ten (10)  to fifteen (15) pounds.  He was unable to work \nand thought he was off work for thirty (30) days.  The following questioning then occurred: \n(Tr. 18) \nQ:  Did you have any pain in your neck like the pain that you experienced after this \naccident?  Did you have anything before this accident? \n \nA:  Yes.  I had pain and I had headaches. \n \nQ:  So are you saying that as a result of the accident or prior to the accident, or \nbefore the accident? \n \nA:  Prior to the accident. \n \nQ:  And “prior” means “before”.  Before the accident did you have these x-rays? \n \nA:  No, I never had nothing.  (Tr. 19) \nUnder cross-examination, the claimant initially admitted that he had a few workers’ \ncompensation  claims  in  the  past,  about  four  (4).    He  was  then  asked  if  the  records \nprovided he had eight (8) claims and with that question, he responded that, “If it’s small \nthings, or it’s like going to the doctors, probably got cut or something fell on my foot yeah, \nprobably so.”  He admitted he had a previous right shoulder injury that was settled a few \nyears ago, about 2020, a rotator cuff tear, that was the result of a motor vehicle accident \nin  the  company  truck.  The  claimant  admitted  that  surgery  was  recommended  but  he \nnever received it, “cause I didn’t have the money and the insurance. I didn’t know who \nwas going to pay for it.”  In response to the settlement of the claim, the claimant stated, “I \nthink it was, if I ain’t mistaken like 24 or 22, something like that.”  The  claimant  also \nadmitted  he  had  settled  his  third-party  claim  that  was  involved  in  the  previous motor \nvehicle accident and that in his previous claim, he was sore in his right shoulder and right \n\nJENKINS – H207527 \n \n6 \n \nleg but denied neck or back pain. The claimant also admitted having a previous hearing \nback in 2013 with the Commission, which involved his right hand and wrist and was asked \nhow it turned out.  He responded, “Well, they said their outcome is -- I don’t know how the \noutcome came out on that.” (Tr. 20-23) \nThe  claimant  was also  questioned  about  the  motor  vehicle  accident  on  May  11, \n2022.  He stated that at the time of the accident he was going forty (40)  or forty-five (45), \nwhen the women pulled out in front of him.  He was later taken to UAMS by his employer \nand complained that his knee was swollen and he pointed to his right calf while testifying, \nbut admitted that he didn’t complain about his right shoulder.    The  claimant  was  then \nquestioned why the diagnosis on page one of his exhibit stated, “Right shoulder strain.”  \nThe claimant admitted that he was pointing behind his shoulder, kind of onto his back.  \nThe claimant disagreed with the report providing for a right shoulder strain.  The claimant \nwas also questioned about going to the ER in 2020 in regard to right shoulder pain and \nresponded that he could not remember what happened in regard to the visit in 2020.  The \nclaimant was specifically asked about the report referring to right shoulder strain and a \nstrain of his calf muscle and the claimant responded, “what do you mean, down there” \nand asked, “That’s when I went to the hospital.”  He stated, “Well, that would be my right \nlower leg right here (indicating).  It’s not toward my knee, it’s right below my knee....”  and \nthen  admitted  he  was  talking  about  the  back  of  his  leg.  The  claimant  was  also \ncross-examined about the report providing for, “No back pain.”  He responded, “I did have \nback pain. I was hurting,” and went on to state that he did tell the ER doctors about his \nback pain.  The claimant stated the reason the back pain was not mentioned in the report \nwas, “Because they didn’t treat me the way they was supposed to.”  (Tr. 26-29)  “At the \n\nJENKINS – H207527 \n \n7 \n \ntime they didn’t do any extra checking on me because it was at the ER.”   The claimant \nstated that his lower neck below his head, his lower back, and his hip were part of this \nclaim  and  that  his  claim  for  his  right  leg  was  related  to  either  his  back  or  hip \ninjury. (Tr. 30-31) \nThe claimant further testified his “injury lawyer” sent him somewhere else to be \nchecked out besides UAMS.  He agreed his right arm from his shoulder to his hand was \nnot part of the claim. The claimant then referred to his upper back, low back, hip, and the \ncalf of his leg.  He also stated he thought that he had blacked out for a minute at the time \nof the accident but admitted that his brain was not part of the claim. The claimant went on \nto state, “I mean I didn’t have loss of memories, like I was confused and I was – what do \nyou call it? – traumatized from the wreck.” (Tr. 32-34)  Upon further questioning, he stated \nhe was talking about the area between his shoulder and his neck, but again denied that \nthe  report  was  correct  where  it  provided  he  denied  neck  pain.  (Tr.  35)    Under  further \nquestioning, the claimant stated that he  returned to the ER on the 14\nth\n, because his back \npain was “worser” and he again thought the report was not accurate. (Tr. 37) \nThe claimant thought he was off work like two (2) weeks or more, but stated that \nhis records for being off work were at home and he did not bring them. (Tr. 38-39)  He \nwas  also  questioned  about  additional  body  parts  being  involved  and  named  after  his \nsecond ER visit and after obtaining the services of the attorney in regard to the third-party \nclaim.  He responded that at the ER, “they don’t have time to sit there and check you fully \nout.”  “At that time there was no insurance, no show insurance - -“ (Tr. 41)  The claimant \nalso believed that his Flex Worx bill was paid by his injury lawyer, but then stated that he \nthought it was paid by the woman who was driving the other car’s insurance. (Tr. 42)   \n\nJENKINS – H207527 \n \n8 \n \nThe claimant felt he had missed all of his days of work between the accident on \nMay 11 and May 25, the date he went to the Flex Worx provider.  He was also questioned \nabout the Flex Worx report of May 25, 2022, which provided he reported missing four (4) \ndays  off  work.  The  claimant  stated  he  didn’t go to Flex Worx until, “way after that.” \n(Tr.44)   He  admitted going  in  to  work  light-duty  and  being  paid.  (Tr.45)    He  would  just \nsweep the floor, pick up stuff, and drive people around. (Tr.46) \nThe claimant went on to state that he felt that Flex Worx  checked him out better \nthan the ER.  His right shoulder was not hurt, “it’s just my lower, my high up.  I don’t know \nwhat they call it right down there.” (Tr.47)  The claimant also agreed with their assessment \nof an acute right lower extremity strain and contusion, acute right hip strain and contusion, \nacute  right  lower  extremity  numbness  and  tingling,  acute  right  shoulder  sprain  with \nexacerbation of a pre-existing injury.  In regard to his right shoulder, the claimant stated \nthat, “Right shoulder does not hurt, it’s just my lower, my high up.  I don’t know what they \ncall it down there.”  He also agreed that he continued working with restrictions. (Tr.48)  \nHe  was  also  questioned about  returning  on June  14\nth\n,  and  the  report  provided  that  his \nheadache  had  resolved  and  he  responded  that  his  headache  had  not resolved  at  that \ntime.  He agreed his pain was mostly in his hip at that time.  He also disagreed with the \nreport providing there was no radicular pain from the cervical spine. (Tr.49-50) \nIn regard to Dr. Crosby, the claimant admitted Dr. Crosby reviewed the MRI of his \nlumbar  spine.  (Tr.52)    However,  the  claimant  also  disagreed  with  the  findings  of \narthropathy of the right hip by Dr. Crosby. (Tr.53)  He stated that his lawyer told him that, \n“These people are no good.  They’re not checking me thoroughly.”  He went on to say \nthat he did not like the way he was treated by Dr. Crosby, and he was sent there by his \n\nJENKINS – H207527 \n \n9 \n \nlawyer. (Tr.54)  At this point it was noted the claimant saw Dr. Reece at Pinnacle Spine.  \nThe  claimant  was  then  asked  about  July  27\nth\n,  when  he  had  stated  that  his  pain  had \nresolved in regard to his neck, right and left forearm, right shoulder, and right lower leg \nand his response was he did not remember. (Tr.55)  He admitted that he had not reviewed \nhis medical records. (Tr.56)  He did think that Dr. Hood was the hip guy.  He also admitted \nseeing  Ms.  Kay Lynn Brunt,  a physician’s  assistant,  and  that  he was  sent  there  by his \nattorney.  He also admitted that his attorney for the car wreck had sent him everywhere \nwith the exception of UAMS.  (Tr.57)  In regard to the claimant mentioning knee pain for \nthe first time when he saw Ms. Brunt, his response was, “Cause I didn’t know what was \nhurting was my knee right here or most of my pain was burnt from my back almost down \nto my knee.” (Tr.59) \nHe  admitted  that  he  was  still  working  for  Fence  World,  the  accident  happened \nabout a year ago, and he had worked there since then, although he was unable to perform \nhis normal job. (Tr.65-66)  The claimant also stated that he was sixty (60) years old at the \ntime of the hearing. (Tr.68) \nOn re-direct, the claimant stated he hit the woman’s Bronco on the back left quarter \npanel on the driver’s side.  He eventually went to the ER on May 11, and returned on May \n14, with complaints of back pain.  After that, he treated with Flex Worx beginning on May \n25\nth, \nwhere  he  complained  of  neck  pain.    He  also  had  an  MRI  with  Millenium  MRI  that \nshowed cervical spine disc bulges.  The claimant also admitted that he got flustered when \nunder  pressure  and  would  not  dispute  any  MRI  that  showed  injuries.  (Tr.68-70))    The \nclaimant also agreed he had stated in his deposition at line 4, page 18, that he had missed \nwork for a week or more.  He also agreed there were other days missed. (Tr.71)  It was \n\nJENKINS – H207527 \n \n10 \n \nalso  the  claimant’s  understanding  that  his  workers’  compensation  claim  was  denied. \n(Tr.72)  The claimant was waiting for the third-party claim to resolve and had no health \ninsurance. (Tr.73) \nOn  re-cross,  the  claimant  admitted  that  he  had  no documentation  regarding  the \ndays  that  he  was  off. (Tr.75)    On  re-direct,  the  claimant  stated  he thought that he had \nbeen off of work for a month. (Tr.76)     \n The  claimant  submitted  a  packet  of  medical  reports  consisting of  one  hundred \nsixty-four (164) pages, that was admitted into the record without objection.  The records \nprovided that  the claimant was initially taken to the UAMS ER  on the day of the  motor \nvehicle accident.  The report provided for a history of acute bursitis of the right shoulder \nwith chronic shoulder pain and exertional dyspnea, plus a previous finding of acute otitis \nmedia.  The report also provided for right shoulder strain acute, along with strain of the \nright  calf  muscle,  and  a  diagram  provided  for  tenderness  over  the  area  of  the right \nshoulder blade and the trapezius muscle.  The report also provided there was full range \nof passive motion without pain and with no tenderness.  There was swelling of the right \nlower  leg  with  no  tenderness.    An  x-ray  of  the  shoulder  was  taken.    A  finding  of right \nshoulder  strain  and  strain  of  the  right  calf  muscle  was  made  and  the  claimant  was \nprescribed baclofen, ibuprofen, and cyclobenzaprine and discharged home.  The treating \nphysician was Dr. Brian Hohertz, Associate Professor of Emergency Medicine.  An x-ray \nof the tibia/fibula provided there was no fracture, with no soft tissue abnormality seen.  An \nx-ray   of   the   right   shoulder   provided   for   moderately   advanced   acromioclavicular \nosteoarthritis.  This  report  provided  that  the  claimant  was  traveling  at  approximately \nthirty-five (35) mph at the time of the accident.  (Cl. Ex. 1, PP. 1-23)  The claimant again \n\nJENKINS – H207527 \n \n11 \n \nreturned to the UAMS ER on May 14, 2022, with the complaint of acute midline back pain \nwithout  sciatica.  The  claimant provided  that  his airbags  deployed but  denied  a  loss  of \nconsciousness.  He also provided he had severe lower back pain that had been slowly \nworsening.  He denied any weakness or numbness and was diagnosed with acute midline \nlow  back  pain  without  sciatica.    His  cervical  back  had  a  normal  range  of  motion  with \ntenderness of the lumbar back.  A CT was ordered.  The CT provided there was no acute \nfracture  or  traumatic  malalignment  of  the  lumbar  spine  with  lumbar  spondylosis most \nprominent  at  the  L4-5  level  with  a  mild  diffuse  disc  bulge  and  ligamentum  flavum \nthickening  causing  mild  spinal  canal  stenosis  with  mild  neural  foraminal  narrowing. \n(Cl. Ex. 1, PP. 24-37) \n At  this  point,  the  claimant  stopped  treatment  with  UAMS  and  presented  to  Flex \nWorx, on May 25, 2022.  The claimant presented with headaches, neck pain, low back \npain, right forearm pain, left forearm abrasion, right shoulder pain, right lower leg pain, \nand right lower extremity numbness and tingling.  The report provided the claimant was \nin a motor vehicle accident and had previously been recommended  for a right shoulder \nrepair, which was not undertaken.  The report provided the claimant contended he was \nsuffering headaches with pain five (5) out of ten (10);  neck pain five (5) out of ten (10); \nlow back pain seven (7) out of ten (10); right shoulder pain four (4) out of ten (10); right \nforearm pain four (4) out of ten (10); left forearm abrasion zero (0) out of ten (10); right \nhip pain seven (7) out of ten (10); right lower leg pain two (2) out of ten (10); and right \nlower  leg  numbness  and  tingling.    His  pain  prior  to  the  May  11,  2022,  motor  vehicle \naccident  was  two  (2)  out of  ten  (10).    The  claimant  was  diagnosed  with  acute  cervical \nsprain with acute headache secondary to the sprain, acute lumbar sprain, acute trapezius \n\nJENKINS – H207527 \n \n12 \n \nstrain, right forearm strain, right lower extremity strain and contusion, right lower extremity \nnumbness  and  tingling,  and  acute  right  shoulder  sprain  with  an  exacerbation  of  a \npreviously existing injury.  It was recommended that the claimant work with restrictions. \n(Cl. Ex. 1, PP. 38-41)  An x-ray dated May 31, 2022,  of the cervical spine provided that \nthere were no fractures or dislocations.  There were some degenerative changes of the \npelvis and there were no fractures or dislocations involving the right hip. (Cl. Ex. 1, P.42) \n The claimant returned to Flex Worx on June 14, 2022, and the report provided that \nthe  acute  cervical  spine  strain  had  mild  improvement,  that  the  acute  headaches  had \nresolved, the acute lumbar sprain, trapezius sprain and right lower extremity strain all had \nmild improvement with mild improvement of the right hip pain.  An MRI of the lower back \nwas recommended.  It was also recommended that the claimant work with restrictions. \n(Cl. Ex. 1, PP. 43-45) \n An MRI dated June 30, 2022, of the lumbar spine, was performed at the Imaging \nGroup of the Mid-South and was apparently read by Alex Cleveland, NP.  It provided that \nthe claimant had a mild disc bulge at L2-3, and L3-4.  (Cl. Ex. 1, PP. 46-47)  The claimant \nreturned  to  Flex  Worx  on  July  8,  2022,  and  the  report  provided  for  tenderness  of the \nlumbar spine along with tenderness to palpitation of the right hip. The report provided that \nthe claimant could work without restrictions. (Cl. Ex. 1, PP. 48-50)  The claimant returned \nto Flex Worx on July 27, 2022, and the report provided the claimant should continue work \nwith no restrictions. (Cl. Ex. 1. PP. 52-54) \n On August 22, 2022, the claimant made an initial visit to Mt. Moriah Orthopedics, \nand visit notes dated September 1, 2022, provided  the claimant was seen for neck and \ncervical  pain,  along  with  hip  pain.    The  report  provided  that  the  cervical  spine  and \n\nJENKINS – H207527 \n \n13 \n \nlumbosacral spine range of motion was severely limited. (Cl. Ex. 1, PP. 55-65)  An MRI \nof  the  cervical  spine  dated  September  15,  2022,  provided  there  was  a  posterior  disk \nherniation  in  the  midline  causing  mild  cord  compression  at  C2-3,  broad  based disk \nherniation due to uncovertebral joint hypertension, which caused mild cord compression, \nand  also a posterior disk  herniation in the midline causing mild cord compression.   At \nC5-6, there was a left foraminal herniation causing moderate narrowing of the left neural \nforamen, and at C6-7 there was a left central /subarticular foraminal herniation with mild \ncord compression. (Cl. Ex.1, PP. 66-67)  An MRI of the right knee also dated September \n15, 2022, provided for a grade 3 oblique tear involving the under surface of the posterior \nhorn  of  the  medial  meniscus  and  also  provided  for  a  horizontal  tear  involving  the \nundersurface of the anterior horn of the medial meniscus. (Cl. Ex. 1, P. 68)   An MRI of \nthe right hip on the same date provided the right hip was normal.  (Cl. Ex. 1, P. 69)  There \nwas  a  follow-up  with  Kay  Lynn  Brunt,  PA-C,  also  on  September  15,  2022.  The  report \nprovided  that  non-operative  treatment  of  neck  pain,  cervical  radiculitis,  facet  joint \nsyndrome, and lumbar herniated disc pain was effective in most cases.  In regard to low \nback pain, the importance of strong low back and stomach muscles were stressed.  The \nreport  also  provided  that  many  patients  can  be  successfully  treated  with  conservative \ninterventions for hip and knee pain. (Cl. Ex. 1, PP. 70-78)   \nThe  claimant  was  seen  by  Dr.  Brian  Reece  on  October  6,  2022,  for  an \nepidural cervical  steroid  injection  based  upon  a  diagnosis  of  a  herniated  disc  and  \ncervical radiculopathy.   An  epidural  lumbosacral  injection  was  also  provided.  (Cl. Ex. \n1, PP. 79- 89)  The claimant returned on October 20, 2022, and later on November 16, \n2022, for follow-ups and was seen by Kay Lynn Brunt, PA -C. (Cl. Ex. 1, PP. 90-110) \n\nJENKINS – H207527 \n \n14 \n \nOn  November  18,  2022, the claimant received bilateral cervical rhizotomies at \nC3-C7 and bilateral lumbar rhizotomies at L3-S1, performed by Dr Brian Reece. (Cl. Ex. \n1, PP. 111-112)  The claimant then presented for a follow-up with Kay Lynn Brunt, PA-C, \non December 1, 2022.  Her report provided that the neck pain with radicular symptoms \nwas resolving but the right hip pain and low back pain continued.  The right knee pain \nwas minimally improved.  (Cl. Ex. 1, PP. 113-122)  The claimant also received physical \ntherapy  from  May  31,  2022,  through  August  29,  2022.    The  reports  provided  that  the \nclaimant attended all prescribed treatments but did not meet his goals and was referred \nto a neurosurgeon “per M.D.” (Cl. Ex. 1, PP. 123-148) \nFinally, a copy of the motor vehicle crash report regarding the accident of May 11, \n2022, was provided.  It basically confirmed the claimant’s description of the accident and \nthat the other driver pulled out in front of him. The impact was sufficient to require both \nvehicles to be towed from the scene with the claimant’s vehicle airbags being deployed. \nThe claimant complained of chest pain due to the airbag deployment and stated he would \nseek his own medical care. (Cl. Ex. 1, PP. 149-161) \nThe respondents also introduced a previous Opinion issued involving a workers’ \ncompensation claim of the claimant dated February 5, 2013.  The Opinion was admitted \nover  the  objection  of  the  claimant.    The  claimant  contended  that  he  had  suffered  a \ncompensable injury to his right wrist and the Opinion found the claimant failed to prove \nhis  right  wrist  injury  arose  out  of  and  in  the  course  of  his  employment  based  upon  a \nnumber of factors. (Resp. Ex. 1) \nThe  respondents  also  submitted  the  deposition  taken  on  April  27,  2023,  of  the \nclaimant, which was admitted without objection.  The claimant admitted to a prior workers \n\nJENKINS – H207527 \n \n15 \n \ncompensation claim while working for Fence World.  He stated he injured his shoulder at \nthe time of a previous accident and the case was settled for either 22 or 42 and that he \nhad gotten over the shoulder problem.  He testified that the shoulder hurts every now and \nthen  and  he  had  taken  medication  for  it.  (Resp.  Ex  2,  PP.  3–5)  He  admitted  to  four \nworkers’ compensation claims while working for Fence World. (Resp. Ex. 2, PP. 7-8)  He \nagreed he had never had surgery in regard to his shoulder, that he had some permanent \ndamage, was restricted to lifting five or ten pounds, but the restriction was no longer in \nplace. (Resp. Ex 2, P. 9)  When asked if he was picked up by the ambulance, the claimant \nresponded, “No.  The guy in the office, he was our secretary.”  He also thought that he \nwas going about forty-five (45) MPH at the time of the accident. (Resp. Ex 2, PP. 13-14)  \nHis right leg was hurting after the accident, his “gas pedal leg.”  He was checked \nout after the accident and thought that he was out of work for a week.  He then returned \nto  work  and  could  not  perform  his  regular  duties  and  consequently  worked  light-duty. \n(Resp. Ex. 2, PP. 15-17)  At the time of the deposition, the claimant stated he had injured \nhis right leg, low back, and neck, but that his right shoulder was not affected. (Resp. Ex. \n2, P. 20)  He was sent to the doctor in Memphis by his attorney Blake.  He also stated \nsurgery was not recommended. (Resp. Ex. 2, P. 21)  At the time of his deposition, the \nclaimant stated he was no longer going to the doctor because of the treatment he had \nreceived for his back and neck made him feel a lot better.  His knee just gives him a little \nbit of problems now and then.  The claimant also stated he did not have group insurance \nand he guessed his medical treatment had been paid by Blake, the attorney. (Resp. Ex. \n2, P. 23)       \nDISCUSSION AND ADJUDICATION OF ISSUES \n\nJENKINS – H207527 \n \n16 \n \nThe claimant objected to the admission of an Opinion issued regarding one of his \nprevious workers’ compensation claims.   It is well known that the Commission is given \nbroad  discretion  in  the  admission  of  evidence  and  shall  use  a  liberal  interpretation  in \nregard  to  the  admission  of  evidence,  conducting  the  hearing  in  a  manner  as  will  best \nascertain the rights of the parties. Ark. Code Ann. § 11-9-705(a).  In the present matter \nthe  claimant  was  questioned  and admitted to multiple previous workers’ compensation \nclaims  with  no  objection.    The  Opinion  involved  one  of  the  previous  claims and \nconsequently, was admitted and given the appropriate weight.   \nRegarding the primary issue of compensability of the injury, the claimant has the \nburden   of  proving,   by   a   preponderance  of   the   evidence,   that   he   is   entitled   to \ncompensation benefits for the injury under the Arkansas workers’ compensation law.  In \ndetermining  whether  the  claimant  has  sustained  his  burden  of  proof,  the  Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party.  \nArk. Code Ann. §11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \nThere is no disagreement that the claimant was involved in a work-related motor \nvehicle accident on May 11, 2022.   The unrebutted evidence provided that the claimant \nwas driving to the next work site at an estimated thirty-five (35)  to forty-five (45) miles per \nhour, when a women pulled out in front of him and a collision occurred.  The impact of the \nvehicles  was  sufficient  to  deploy claimant’s front airbags and damage both vehicles \nsufficiently to require a tow from the accident scene.  The claimant was not taken to UAMS \n\nJENKINS – H207527 \n \n17 \n \nby ambulance immediately but was later taken to the ER and dropped off after going to \nthe office.  A person who apparently was the secretary of the company, per the claimant’s \ntestimony, appeared at the accident scene with the motor vehicle insurance papers and \npicked the claimant up after he was extricated from the work vehicle that he was driving.   \nFrom  this  point,  the  testimony  of  the  claimant  and  the  medical  reports  become \nsomewhat confusing.  The initial visit to the UAMS ER on May 11, 2022, provided that the \nclaimant suffered from a right shoulder strain and the x-ray of the shoulder provided that \nthe  claimant  suffered  from moderately advanced  acromioclavicular osteoarthritis  of the \nshoulder.  The report provided that the claimant was traveling at approximately 35 mph \nat the time of the accident and in addition provided for a calf muscle strain.  The x-ray of \nthe  tibia/fibula  provided  there  was  no  fracture and  no  soft  tissue  abnormality.    The \nclaimant returned to the UAMS ER on May 14, 2022, with a complaint of acute midline \nback pain without sciatica.  His cervical back was found to have a normal range of motion \nwith tenderness in the lumbar area.  A CT was ordered which provided there was no acute \nfracture  or  traumatic  malalignment  of  the  lumbar  spine  with  lumbar  spondylosis most \nprominent  at  the  L4-5  level,  with  a  mild  diffuse  disc  bulge  and  ligamentum  flavum \nthickening causing mild spinal canal stenosis with mild foraminal narrowing.  The claimant \ntestified  he  had  retained  an  attorney  (Blake)  at  this  point  to  represent  him  in  his third- \nparty claim, and he consequently never returned to UAMS because his attorney for the \nthird-party claim sent him elsewhere for treatment. \n The claimant’s next medical record was with Flex Worx on May 25, 2022, two (2) \nweeks post-accident and provided that the accident exacerbated the claimant’s previous \nproblems.  Another x-ray of the cervical spine on May 31, 2022, provided for no fractures \n\nJENKINS – H207527 \n \n18 \n \nor dislocations.  An x-ray of the hip showed degenerative changes of the pelvis with no \nfractures or dislocations.  The claimant continued to treat with Flex Worx and received an \nMRI of the lumbar spine, which was read by Alex Cleveland, NP, on June 30, 2022.  It \nprovided for a mild disc bulge at L2-3, and L3-4.  Flex Worx provided that the claimant \ncould return to work with no restrictions on July 27, 2022. \nApproximately  three  (3)  months  after  the  motor  vehicle  accident  on  August  22, \n2022, the claimant received a MRI of the cervical spine which provided for disc herniations \nin regard to C2-3 and C5-6.  An MRI of the right hip on the same date provided that the \nhip was normal.   \nThe claimant contended that the motor vehicle accident injured his lower back, hip, \nneck, and the lower part of his right leg and there was an issue with his right shoulder.  \nThese  complaints  varied  somewhat  over  time.    He  also  testified  that  he  felt  that the \ntreatment he received at the UAMS ER was not thorough and that he felt that Dr. Crosby \nwho reviewed the MRI of his lumbar spine did not treat him well.  He testified that he had \nbeen involved in four workers’ compensation claims in his deposition and admitted to 8 \nprevious claims in his testimony at  the hearing.  He clearly had more than an average \namount of knowledge in regard to a workers’ compensation claim.   \nUnder workers’ compensation law in Arkansas, a  compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability and  must  be  stated  within  a  degree  of  medical  certainty. \nSmith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).    Speculation  and \nconjecture cannot substitute for credible evidence.  Liaromatis v. Baxter County Regional \nHospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).    More  specifically,  to  prove  a \n\nJENKINS – H207527 \n \n19 \n \ncompensable injury, the claimant must establish, by a preponderance of the evidence: (1) \nan injury arising out of and in the course of employment; (2) that the injury caused internal \nor external harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. \n§11-9-102  (16)  establishing  the  injury  and  (4)  that  the  injury  was  caused  by  a  specific \nincident and identifiable by time and place of occurrence.  If the claimant fails to establish \nany of the requirements for establishing the compensability of the claim, compensation \nmust be denied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d \n876 (1997). \nObjective findings are those findings that cannot come under the voluntary control \nof the patient. Ark. Code Ann §11-9-102(16).  It is also important to note that the claimant’s \ntestimony is never considered uncontroverted.  Lambert v. Gerber Products Co.  14 Ark. \nApp. 88, 684 S.W.2d 842 (1985).  \nHere  the  medical  records  in  regard  to  the  claimed  injuries  make  no  objective \nfindings in regard to the claimant’s problems being caused by the accident.  The claimant \nclearly was suffering from bursitis and osteoarthritis of varying degrees.  The MRI of the \nhip in August showed that the hip was normal.  The MRI of the cervical spine provided \nthere were disc herniations, but there was no opinion provided as to the cause.  An MRI \nof the right knee also in September provided for a tear of the meniscus, but again provided \nno opinion as to the cause of the tear.  There was an approximate three (3) month gap \nbetween the cervical and knee MRIs and the date of the motor vehicle accident.  The CT \nof the back shortly after the motor vehicle accident taken at UAMS provided for no acute \nfracture  or  traumatic  malalignment  of  the  lumbar  spine  with  lumbar  spondylosis  with  a \n\nJENKINS – H207527 \n \n20 \n \nmild  diffuse  disc  bulge  and  ligamentum  flavum  thickening  causing  mild  canal stenosis \nwith mild foraminal narrowing, a finding not related to the accident.  Here, the claimant’s \ntestimony  is  the  primary  evidence  that  connects  all  the  claimed  injuries  to  the  motor \nvehicle accident.  Consequently, the claimant has failed to satisfy the required burden of \nproof regarding all of these claimed injuries.  See,  Luster v. Ben E. Keith Co., 2012 Ark. \nApp.  197  (2012)   “Objective findings” are based on observable criteria perceived by \nsomeone other than the claimant.  Continental Exp., Inc. v. Freeman, 66 Ark. App. 102, \n989 s.W.2d 538 (1999).   \nIn regard to claimant’s first visit to the UAMS ER on May 11, 2022, the unrebutted \ntestimony  is  that  an  employee  from  the  company  appeared  with  the  insurance papers \nregarding  the  vehicle  in  the  accident.    In  addition,  the  same  employee picked  up  the \nemployee from the scene and returned him to the office.  Later on the day of the accident \nthe claimant was taken to the ER by what appears to be someone from work and dropped \noff.      An    employer    is    generally    only    responsible  for  medical  expenses  when  an \nemployee is  determined  to  have  suffered  a  compensable  injury.  See, Ark. Code Ann. \n§11-9-102(5)(F)(i).  However,  in  the  case  at  hand,  the  respondent  dropped  off  the \nclaimant  at  the  UAMS  ER  on  May  11, 2022,  sometime after  the accident  on  the  same \ndate.  The respondent was clearly aware of the facts of the accident, the claimant would \nhave clearly believed he was entitled to treatment after the accident after turning down \nan ambulance but later being dropped off at the ER.  The claimant was unknowledgeable \nof the true facts regarding the injury at the time he entered the ER and would have relied \non the actions of the respondent.  See, Snow v. Alcoa, 15 Ark. App. 205, 691 S.W.2d 194 \n(1985)  Consequently the initial UAMS ER visit is found to be authorized as the claimant \n\nJENKINS – H207527 \n \n21 \n \nwas taken to the emergency room to be evaluated.  See, Britain v. Southern Hospitalities, \n54 Ark. App. 318, 925 S.W.2d 810 (1996).  Respondents are found to be estopped from \ndenying the responsibility of the initial employer-directed visit to the ER, notwithstanding \nthe fact that the injury was not found to be compensable.   The Arkansas Compensation \nAct  provides  that  an  employer  shall  promptly  provide  for  an  injured  employee  such \nmedical treatment as may be reasonably necessary in connection with the injury received \nby the employee.  Ark. Code Ann. §11-9-508(a).  However, the second visit to UAMS ER \nis found to not be the employer’s responsibility pursuant to Arkansas la w.    \nIn  addition,  it  is  again  noted  that  there  are  no  objective  findings  in   regard \nto the injury   to  the  right  lower  leg,  except  for  swelling,  and  no  finding  as  to  the  \ncause    of    the  swelling.    A   workers’   compensation    claimant    bears    the    burden    of  \nproving  the compensable  injury,  by  a  preponderance  of  the  evidence.  Ark. Code \nAnn. §11-9-102(4) (E)(i).  A compensable injury is one that was the result of an accident \nthat  arose  in  the  course  of  his  employment  and  that  grew  out  of  or  resulted  from  the \nemployment.  See, Moore v. Darling Store Fixtures, 22 Ar. App 21, 732 S.W.2d 496 (1987)   \nBased upon the available evidence in the case at bar, there is no alternative but to find \nthat the claimant has failed to satisfy the required burden of proof to show he suffered a \nwork-related injury consisting of a strain and work-related injuries  to his right lower leg \nand knee.  In addition, based upon the available evidence in the case at bar, there is no \nalternative but to find that the claimant has failed to satisfy the required burden of proof \nas to the additional claimed injuries to various body parts.   \nIn  regard  to  temporary  total  disability  (TTD),  the  claimant  contended  at  various \ntimes that he had missed a variety of days from work.  He stated that he had records but \n\nJENKINS – H207527 \n \n22 \n \nthat he had failed to bring them.  He also testified that he had worked light-duty, sweeping \nfloors,  and  driving  people  around.  Temporary  total  disability  is  that  period  within  the \nhealing period in which an employee suffers a total incapacity to earn wages.  Arkansas \nState  Highway  and  Transportation  Department  v.  Breshears,  72  Ark.  App.  244,  613 \nS.W.2d  392)    The  claimant  bears  the  burden  of  proving  he  remains  within  his  healing \nperiod and in addition, suffers a total incapacity to earn pre-injury wages in the same or \nother employment. Palazzo v. Nelms, 46 Ark. App. 130, 877 S.W.2d 938 (1994)  There \nare  no  medical  records  providing  that  the  claimant  should  have been  off  of  work  for  a \nspecific period of time.  It is noted that persistent pain is not sufficient in itself to extend \nthe healing period or to find the claimant totally incapacitated from earning wages. See, \nMad  Butcher  v.  Parker,  4  Ark.  App.  124,  628  S.W.2d  582  (1982).  Temporary  total \ndisability  can  not be  based  upon  speculation  or  conjecture.   Consequently,  there  is  no \nalternative but to find that the claimant has failed to satisfy the required burden of proof \nthat he is entitled to temporary total disability. \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, it is found that the respondents are found to be estopped from denying the \nresponsibility for the initial employer-directed visit to the UAMS ER, notwithstanding the \nfact that the injury was not found to be compensable  The respondents are found to not \nbe  responsible  for  the  second  UAMS  ER  visit.  In  addition,  the  claimant  has  failed  to \nsatisfy the required burden of proof that his claim for an injury which constituted a strain \nto his right lower leg and additional injuries to the right leg and knee are compensable.  \nThe claimant has also failed to satisfy the required burden of proof that his claims for all \nremaining  injuries  are compensable.    Consequently,  the  question of  medical  treatment \n\nJENKINS – H207527 \n \n23 \n \nfor  all  these  claimed  injuries  and  for  attorney  fees  are  moot,  with  the  exception  of  the \nmedical treatment involved in the initial ER visit.  The claimant has also failed to satisfy \nthe required burden of proof for TTD.   If not already paid, the respondents are ordered \nto pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n  \n \n \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":45007,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207527 MICHAEL KEVIN JENKINS, EMPLOYEE CLAIMANT VS. FENCE WORLD INC., EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INSURANCE COMPANY/ CARRIER/SUMMIT CONSUSTING, LLC, TPA RESPONDENT OPINION FILED JULY 11, 2023 Hearing before Administrative Law Judge, James D. K...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["strain","knee","wrist","back","hip","neck","shoulder","rotator cuff"],"fetchedAt":"2026-05-19T23:05:10.403Z"},{"id":"alj-H104448-2023-07-11","awccNumber":"H104448","decisionDate":"2023-07-11","decisionYear":2023,"opinionType":"alj","claimantName":"Levi Yousey","employerName":"Blackhawk Auto & Tire","title":"YOUSEY VS. BLACKHAWK AUTO & TIRE AWCC# H104448 JULY 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/YOUSEY_LEVI_H104448_20230711.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"YOUSEY_LEVI_H104448_20230711.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H104448 \n \nLEVI YOUSEY, Employee CLAIMANT \n \nBLACKHAWK AUTO & TIRE, Employer RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 11, 2023 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  April  11,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on  February  6,  2023,  and  a  Pre-hearing \nOrder  was  filed  on  February  7,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2.  The  relationship  between  employee-employer-carrier  existed  between  the  parties  on \nMay 14, 2021. \n 3. The claimant sustained a compensable injury to his right  upper extremity on May 14, \n2021. \n 4. The claimant’s weekly compensation rates will be determined at a later date.  \n\nYousey – H104448 \n \n-2- \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  is  entitled  to  surgery  for  his  compensable  right  upper  extremity \ninjury in the form of surgery as recommended by Dr. James Kelly. \n Claimant’s contentions are: \n“Claimant  contends  he  is  entitled  to  surgery  for  his  right  upper \nextremity  as  recommended  by Dr.  Kelly.  Claimant  reserves  all \nother issues.” \n \n Respondents’ contentions are: \n  \n“Respondents contend that they accepted the claim as compensable \nand  have  paid  all  applicable  medical  and  indemnity  benefits.  The \ntreatment   subsequently   suggested   by claimant’s   change   of \nphysician,   Dr.   James   Kelly’s evaluation   is   not   reasonable, \nnecessary or related to the work injury.” \n \n The claimant in this matter is a 26-year-old male who sustained a compensable injury to \nhis right upper extremity on May 14, 2021. At the time of his injury the claimant was employed \nby the respondent as a “lube tech.” His job required him to perform automobile oil changes and \nchange  and  balance  tires.  The  claimant  testified  that  the  work  required  heavy  lifting  and  use  of \nhis  hands.  The  claimant  gave  direct  examination  testimony  about  his  abilities  prior  to  the \naccident and the incident itself as follows: \nQ Did  you  have  any  trouble  doing  that  work  prior  to  your \naccident? \n \nA No. \n \nQ Did you have any type of weakness in your right arm at all? \n \nA No. \n \nQ And what happened on May 14\nth\n of 2021? \n \nA I  was  going  to  balance  a  tire  and  as  I  was  picking  it  up  to \nput it on the tire machine, it exploded in my hands. \n\nYousey – H104448 \n \n-3- \n \nQ And what injuries did you sustain? \n \nA I  broke  my  radius.  It  burned  my  arm  and  broke  my  pinky, \nas well. And just multiple cuts and bruises. \n \nQ Okay. Now, did you go to the emergency room? \n \nA Yes. \n \nQ Which hospital? \n \nA Northwest in Bentonville. \n \nQ And how did you get there? \n \nA Ambulance. \n \n The  claimant  eventually  began  treatment  for  his  compensable  right  upper  extremity \ninjury with Dr. Jeff Johnson. Dr. Johnson performed surgery on the claimant on May 25, 2021, at \nPrecision  Surgical  Center  of  Northwest  Arkansas.  Following  is  a  portion  of  Dr.  Johnson’s \noperative report: \nPREOPERATIVE DIAGNOSES: \n1. Injury caused by exploding tyre [sic]. \n2. Right radial shaft fracture, closed. \n3. Right small finger proximal phalanx fracture, closed. \n \nPOSTOPERATIVE DIAGNOSES: \n1. Injury caused by exploding tyre [sic]. \n2. Right radial shaft fracture, closed. \n3. Right small finger proximal phalanx fracture, closed. \n \nPROCEDURES PERFORMED: \n1. Open reduction and internal fixation right radial shaft fracture. \n2.  Closed  reduction  and  percutaneous  pin  fixation  right  small \nfinger proximal phalanx fracture. \n \n The  claimant  continued  to  treat  with  Dr.  Johnson  after  his  surgical  intervention.  The \nclaimant was seen by Dr. Johnson on July 8, 2021. At that time, the claimant “notes that his pain \n\nYousey – H104448 \n \n-4- \nis well controlled.” Dr. Johnson ordered six weeks of physical therapy and put the claimant in a \ncock-up wrist splint. The claimant was  restricted  to lifting no greater than 10 lbs. with his  right \nhand and no repetitive gripping with his right hand.  \n The claimant was again seen by Dr. Johnson on August 19, 2021. The History of Present \nIllness portion of that report states: \nHPI \nMr.  Yousey  returns  today  for  a  recheck  after  right  radial  shaft \nORIF,  right  small  finger  proximal  phalanx  closed  reduction  and \npinning 5/25/2021. His injury date was 5/14/2021. \n \nHe notes that he is no longer having  much in the way of pain. He \nhas  been  working  with  therapy  and  feels  that  has  helped  a  great \ndeal. He no longer has any numbness or tingling in his arm except \nfor  right  over  the  area  of  the  blast  wound.  Furthermore  he  notes \nthat the only stiffness he really feels is over the small finger. \n \nThe claimant was continued on physical therapy twice a week for six weeks and was told to stop \nhis splint use. The claimant’s restrictions were removed, and he was returned to full duty. \n On October 14, 2021, the claimant was again seen by Dr. Johnson. Following is a portion \nof that medical record: \nHPI \nMr.  Yousey  returns  today  for  a  recheck  after  right  radial  shaft \nORIF,  right  small  finger  proximal  phalanx  closed  reduction  and \npinning  5/25/2021.  His  injury  date  was  5/14/2021.  He  feels  like \ntherapy has helped quite a lot. He does not feel particularly stiff in \nhis  hand.  He  still  has  a very  small  area  of  numbness  directly  over \nthe blast wound. There is some tattooing in his forearm at this area \nof skin loss. \n \n*** \nAssessment/Plan \n1. Fracture of proximal phalanx of finger – Right – This appears to \nhave  healed  quite  nicely  and  there  is  residual  issue  with  the  small \nfinger. \nS62.616A:  Displaced  fracture  of  proximal  phalanx  of  right  little \nfinger, initial encounter for closed fracture. \n\nYousey – H104448 \n \n-5- \n \n2. Fracture of shaft of radius – Right – \n1. Work restrictions: Full duty no restrictions. \n2.  I  believe  that  he  has  reached  maximal  medial  improvement. \nBased  on  the  guides  to  the  evaluation  of  permanent  impairment, \nfourth edition, his impairment rating is as follows: \nUsing  figure  35  page  41,  he  has  a  1%  impairment  of  the  forearm \nrelated to a loss of pronation. \nThis is a 1% impairment of the upper extremity. Using table 3 page \n20 this is a 1% impairment of the whole person. \n \n3.  I  do  not  anticipate  any  long-term  needs  although  if  he  were  to \nhave  problems  with  this  plate  I  certainly  would  recommend  that \nthat  be  covered  as  part  of  his  initial  injury.  I  will  discharge  him \nfrom clinic at this point. \nS52.321A:  Displaced  transverse  fracture  of  shaft  of  right  radius, \ninitial encounter for closed fracture. \n \n The  claimant  was  asked  on  direct  examination  about  difficulties  he  was  having  at  the \ntime  of  his  October  14,  2021,  release  by  Dr.  Johnson  and  if  those  difficulties  continued  as \nfollows: \nQ Did Dr. Johnson release you on October 14\nth\n of 2021? \n \nA Yes. \n \nQ And  at  the  time  of  your  release,  were  you  still  having  any \nsymptoms or problems? \n \nA Yes. \n \nQ What kind of problems? \n \nA I  was  having  numbness  in  my  hand  and  arm.  I  couldn’t \nreally grip ahold of anything. I was dropping things a lot. \n \nQ Okay. Now, the numbness in your hand, tell us more about \nthat. When would that normally happen? \n \nA It  mostly  happens  when  I  sleep.  I  though  it  was  because  I \nwas sleeping on it or something, but it just goes numb. \n \n\nYousey – H104448 \n \n-6- \nQ Did  you  try  various  things  to  see  if  the  problem  was \nsleeping on it? \n \nA Yea,  I mean  I would sleep in  different positions, try not to \nlean on that arm too much, but using it less or more, either way, it \nstill made it go numb. \n \nQ And the numbness in your arm, where is that numbness? \n \nA In my forearm. \n \nQ Do you have any other symptoms? \n \nA Just my grip strength and being able to squeeze and hold on \nto  things.  And  I  have  pain  in  there  sometimes  as  well  as  in  my \nforearm. \n \nQ Okay. And  I think my initial question was what were your \nsymptoms  when  Dr.  Johnson  released  you.  Have  those  changed \nsince that time or are they still the same? \n \nA They are still the same. \n \n The   claimant   was   questioned   on   cross-examination   about   the   difficulties   he   was \nexperiencing during his treatment with Dr. Johnson as follows: \nQ Now,  during  the  time  that  you  were  continuing  to  follow \nwith Dr. Johnson, there is an indication in the notes that you are no \nlonger having much in the way of pain. He has been working with \ntherapy.  Feels  that  has  helped  a  great  deal.  He  no  longer  has \nnumbness and tingling in his arm except right over the area of the \nblast wound. Would that be the forearm? \n \nA Yes. I believe just where everything occurred, yes. \n \nQ Okay.  So  that  is  what  you  reported  to  Dr.  Johnson  during \nthe time you were following with him; correct? \n \nA I  told  him  I  had  some –  I  had  been  having  pain  and \nnumbness in my hand and he never really ever mentioned anything \nabout  it.  I  believe  he  gave  me  more  physical  therapy,  which  was \nthe last part of my physical therapy, for it. \n \n\nYousey – H104448 \n \n-7- \nQ So did the numbness and tingling with the exception of the \narea in your forearm improve or is this note not correct? \n \nA It improved. I mean I never had any numbness or anything \nwhen I was wrapped up after my surgery, really, whenever I was in \na big, giant cast directly after my surgery. But during the physical \ntherapy  and  everything  else,  that  is  when  the  numbness  and \neverything started occurring. \n \nQ Okay.  I  am  looking  at  an  office  visit  and  I  am  reading  the \nnote and it was in  August. So that would have been three months, \nroughly, after your surgery? \n \nA Yes. \n \nQ And at that point it indicates that you are no longer having \nany  numbness  or  tingling  in  your  arm  with  the  exception  of  the \nblast wound area. \n \nA That  is  where  my  numbness  is.  I  remember  telling  him \nabout the numbness. \n \nQ Okay. So has the numbness always been in your forearm? \n \nA Yes. \n \nQ Okay. It’s not down in your hand? \n \nA It is my hand and my forearm. \n \nQ Okay. This note doesn’t indicate any problem in your hand; \ndoes it? \n \nA No. \n \n Again,   on   re-direct   the   claimant   was   questioned   about   the   difficulties   he   was \nexperiencing as follows: \nQ So   you   testified   that  you   told   Dr.   Johnson  about   the \nsymptoms  you  were  still  having  of  the  numbness  in  your  forearm \nand in your hand. Do you feel that he responded to that? Did he do \nanything about that? \n \nA I believe he just ordered more physical therapy. \n\nYousey – H104448 \n \n-8- \n \nQ Well,  on  October  14\nth\n  of  2021  when  he  released  you \nfinally, did you tell him you were still having those symptoms? \n \nA I believe – I figured I was getting as good as I was going to \nget so I didn’t say thing to him about it. \n \nQ And  do  you feel  that  the  physical  therapy  did  help  the \nstiffness in your hand? \n \nA It  did  help  me  limber  up  after  my  surgery  and  everything; \nbut it was never back to normal. \n \nQ Do you feel that the physical therapy helped the numbness \nin your arm or your hand? \n \nA No.  It  never  really  did  anything  for  the  numbness  of  my \narm or my hand. \n \n The claimant testified that after he was released by Dr. Johnson to full  duty, he returned \nto work but not for the respondent. On direct examination the claimant testified as to why he did \nnot return to work for the respondent as follows: \nQ Now,  after  you  were  released  by  Dr.  Johnson,  did  you  go \nback to Blackhawk? \n \nA No. \n \nQ Why not? \n \nA Because  I  knew  I  wasn’t  going  to  be  able  to  do  the  work \nthat I used to do before my accident there. \n \nQ And  why  was  that?  What  would  have  prevented  you  from \ndoing that kind of work? \n \nA The  heavy  lifting  and  holding  on  to  25-  to  30  pounds  all \nday for eight hours a day. \n \nQ Why did you think you would not be able to do that? \n \nA Because  my  arm,  my  right  arm  would  get  tired  and  go \nnumb and I didn’t think it would help the cause any. \n\nYousey – H104448 \n \n-9- \n \nQ Now,  since  your  accident  happened,  has  there  ever  been  a \ntime that your right hand and arm have felt normal? \n \nA No. \n \n The   claimant   began   working   for   his   father-in-law   at   Josh   Worley   Painting.   The \nclaimant’s  work  duties  when  he  started  included  prep  work  and  taping  of  windows,  doors,  and \nbaseboards.  The  claimant  eventually  moved  into  painting,  a  job  duty  he  was  performing  at  the \ntime  of  the  hearing  in  this  matter.  The  claimant  testified  that  he  was  able  to  do  the  work  of  a \npainter.  Even  though  he  is  right-hand  dominate,  he  considers  himself  ambidextrous.  The \nclaimant testified on direct examination about his ability to work as a painter as follows: \nQ Okay.  And  how  has  that  been  with  your  right  hand  and \narm? \n \nA It’s a lot easier on it. I can paint with my right hand. I also \nswitch  off  with  my  left  hand.  I  can  do  it  well  with  both.  But  I  do \ndrop a lot of things with my right hand, so I take more breaks and \nuse my left hand more than my right. \n \n The claimant  requested  and  then  received  a  Change  of  Physician  from  the  Commission \non  September  21,  2022.  The  claimant’s  Change  of  Physician  allowed  him  to  see  Dr.  James \nKelly, who practices plastic and reconstructive surgery along with hand and microsurgery.  \n Dr.  Kelly  saw  the  claimant  in  October  of  2022  and  authored  a  letter  regarding  the \nclaimant. That letter is found at  Respondents’ Exhibit 1, pages 41-42.  Following is the body of \nthat letter: \nThank  you  very  much  for  referring  Levi  Yousey  for  consultation. \nAs you are aware, he is a 25-year-old gentleman who on 5/14/2021 \nhad a tire blow up and injure his right arm. He was an employee of  \nBlacklock auto and tire at the time. This required ORIF of an open \nfracture  to  his  right  radial  shaft  as  well  as  pinning  of  his  right  5\nth\n \nproximal  phalanx.  This  was  completed  by  Dr.  Jeff  Johnson  in \nBentonville.  The  fracture  went  on  to  heal  well  both  in  the  finger \n\nYousey – H104448 \n \n-10- \nand the forearm. He went through post operative therapy for about \ntwo months. He presents today with two different complaints. First \nof all, he is getting numbness, predominately in the 1\nst\n, 2\nnd\n, and 3\nrd\n \nfingers,  that  wakes  him  at  night.  This  happens  multiple  times  a \nweek.  He  also  gets  aching  pain  in  the  volar  forearm  when  he is \nusing and complains of weakness in the arm and forearm. States he \ndrops objects. \n \nIn  examining  him,  he  had  a  positive  compression  test  over  the \npronator   tunnel.   He   also   had   positive   Tinel’s,   Phalen’s   and \ncompression test at the wrist. His sensation was about 7 mm in the \nmedian  distribution  of  the  right  hand.  Costal  compression  and \ncervical  examinations  were  negative.  His  x-rays  were  examined \nand  showed  excellent  healing  and  anatomical  alignment  of  the \nradius. \n \nI  think  this  gentleman  has  pronator  tunnel  plus  or  minus  carpal \ntunnel syndrome. Carpal tunnel is likely given the numbness when \nhe  is  sleeping.  The  weakness  and  pain  in  the  forearm  when  he  is \nusing his arm would be more related to pronator tunnel syndrome. \nWith  a  midshaft  radial  fracture  it  is  not  uncommon  to  see  these \ntypes of problems due to  postoperative scarring  and scarring  from \nthe  actual  injury  itself.  I  am  going  to  order  EMG/NCV  studies  to \nbe completed on him.  I  want to see him back here in the office to \nreview the results. I will make appropriate recommendations there \nafterwards. I will of course be following him through his care. \n \n On November 2, 2022, the claimant underwent an EMG of his right upper extremity with \nDr. Miles Johnson of Northwest Arkansas EMG Clinic. Following is a portion of that diagnostic \nreport: \nCHIEF  COMPLAINT:  Right  upper  extremity  pain,  numbness, \ntingling, and weakness. \n \nHISTORY OF PRESENT ILLNESS: Patient is a 25-year-old right-\nhanded male who sustained a right radius fracture at work on May \n14, 2021 when a tire exploded. He has undergone ORIF. He is now \nnoticing  pain  in  the  extremity  when  he  lifts  objects.  He  gets \nintermittent  numbness  and  tingling  in  the  hand  which  is  often \nworse  at  night.  There  is  some  improvement  with  shaking  the \nextremity.  He  denies  any  neck  pain.  Patient  has  been  seen  by  Dr. \nKelly and is referred for electrodiagnostic testing of the right upper \nextremity. \n\nYousey – H104448 \n \n-11- \n \n*** \nSUMMARY:  Right  median,  radial,  and  ulnar  motor  studies  are \nnormal. Right median ulnar orthodromic sensory latency difference \nis  normal.  Medial  sensory  response  to  the  third  digit  revealed \nnormal  distal  latency,  amplitudes,  forearm  and  elbow  conduction \nvelocities.  Right  radial  sensory  response  of  the  first  digit  was \nnormal. Right lateral antebrachial cutaneous sensory response was \nnormal. EMG examination of the right upper extremity was within \nnormal limits. \n \nASSESSMENT:  Mild right  carpal  tunnel  syndrome.  There  is  no \nelectrodiagnostic evidence of radiculopathy, plexopathy, \ngeneralized   peripheral   neuropathy   or   other   peripheral   nerve \nentrapment  syndromes.  Specifically  no  evidence  of  a  proximal \nmedian neuropathy. \n \nPLAN:  Patient  has  been  counseled  regarding  the  above  findings \nand  has  been  instructed  to  schedule  a  followup  appointment  in \nyour office for further evaluation in order to utilize these results in \nthe treatment/management of their condition. \n \n On November 9, 2022, the claimant was again seen by Dr. Kelly. Following is a portion \nof that progress notes: \nMr.  Yousey  presents  to  the  office  today  in  follow-up  after  having \nhad  EMG/NCV  studies  completed.  I  suspect  that  he  does  have \nright  carpal  tunnel  syndrome.  He  of  course  also  has a  positive \ncompression  test  over  the  pronator  and  that  would  be  compatible \nwith  pronator  tunnel  syndrome  which  he  gets  aching  pain  in  the \nforearm when he uses his arm. With him having  a midshaft radial \nfracture,  with  that  approach,  it  is  not  uncommon  to  see  this.  My \nplans  therefore  are  to  take  him  the  OR,  we  will  do  a  right \nendoscopic carpal tunnel release and fascial release of the forearm. \nWe will also explore the median nerve through the pronator tunnel \nand   likely   release   the   constriction   at   the   supinator.   Patient \nunderstands the plan and I will make arrangements to get this done \nand I will be seeing him back here in the office of course in follow-\nup.  He  will  be  on  one  handed  duties  for  2  weeks  and  light  duties \nfor  2  weeks.  At  4  weeks,  he  will  be  free  to  do  anything  he  would \nlike with no restrictions on the hand. \n \n\nYousey – H104448 \n \n-12- \n The claimant has asked the Commission to determine whether he is entitled to surgery for \nhis  compensable  right  upper  extremity  injury  as  recommended  by  Dr.  James  Kelly.  It  is  the \nclaimant’s  burden  to  prove  that  the  surgery  recommended  by  Dr.  Kelly  is  reasonable  necessary \ntreatment for his compensable injury.  \n The respondent introduced a document dated December 13, 2022, from a company called \ngenex that is titled, “Physician Advisor Report.” That document is signed by Dr. Victoria Knoll, \nwho is licensed in Texas, and that document can be found at Respondents’ Exhibit 1, pages 50-\n53. Following is a portion of that document:  \nDiagnosis: Diagnosis: mild right carpal tunnel syndrome. \n \nTreatment Requested: Right Endoscopic Carpal Tunnel Release & \nFacial release forearm, & right pronator tunnel release CPT-29848, \n25020, 29125, 64708 Body side/parts: right lower arm, right upper \narm, right fingers, right upper leg, right chest. \n \nRequesting Provider Name: James Kelly, MD. \n \nDetermination: Adverse Determination. \n \nSummary of Clinical Condition \nThis case involves a 25-year-old with a history of an occupational \nclaim from 5/14/2021. The mechanism of injury was described as a \nmotor  vehicle  accident.  The  current  diagnosis  includes mild  right \ncarpal   tunnel   syndrome.   Comorbidities   were   documented   as \nhistory of right midshaft radial fracture, history of right radial open \nreduction   and   internal   fixation   (ORIF)   with   pinning   of   fifth \nproximal  phalanx.  10/17/2022  letter  indicated  the  claimant  has \nnumbness  in  the  1\nst\n-3\nrd\n  right  fingers  that  wakes  the  claimant  up  at \nnight  multiple  times  a  week,  as  well  as  pain  in  the  volar  forearm \nwith use, weakness in the hand and forearm,  resulting in dropping \nobjects.  Physical  exam  of  right  upper  extremity  noted  a  positive \ncompression  test  over  pronator  tunnel,  positive  Tinel’s,  Phalen’s \nand  compression  test  at  the  wrist.  Progress  note  dated  11/09/2022 \nindicated  the  claimant  has  had  aching  pain  in  the  right  forearm \nwith use, has a positive compression test over the pronator, fascial \nrelease  of  the  forearm,  as  well  as  exploration  of  the  median  nerve \nthrough the pronator tunnel with possible release of constriction at \n\nYousey – H104448 \n \n-13- \nthe     supinator.     11/02/2022     Electromyogram     (EMG)/Nerve \nconduction  study  (NCS)  of  right  upper  extremity  noted  mild  right \ncarpal tunnel syndrome. This review pertains to the request of right \nendoscopic  carpal  tunnel  release  and  fascial  release  forearm,  and \nright  pronator  tunnel  release  for  the  right  lower  arm,  right  upper \narm,  right  fingers,  right  upper  leg,  right  chest,  per  CPT  codes \n29848, 25020, 29125, 64708. \n \n The respondent also introduced a letter that is authored by a respondent carrier employee, \nTracy Hogan, RN. That letter is dated December 14, 2022, and is addressed to Dr. James Kelly. \nThe  document  is  found  at  Respondents’  Exhibit  1,  pages  54-56.  It  appears  to  be  advising  Dr. \nKelly  of  Dr.  Knoll’s  Physician  Advisor  Report  of  December  13,  2022.  That  letter  does  a  good \njob of summarizing the longer Physician Advisor Report’s adverse determination as follows: \nBased  upon  the  information  obtained,  it  has  been  determined  that \nthe proposed treatment does not meet medical necessity guidelines. \n \nThe principle reason for the determination is:  \nOfficial   Disability   Guidelines   conditionally   recommend   carpal \ntunnel  release  surgery  for  carpal  tunnel  syndrome.  Guidelines \nindicate surgery for non-severe carpal tunnel syndrome (CTS) with \nabnormal  Katz  hand  diagram  scores,  nocturnal  symptoms,  Flick \nsign,  positive  testing  on  physical  exam,  with  failure  of  3  types  of \nconservative  care  such  as  activity  modification,  night  wrist  splint, \nnonprescription  analgesia,  home  exercise  program.  10/17/2022 \nletter  indicated  the  claimant  has  numbness  in  the  1\nst\n-3\nrd\n  right \nfingers that wakes the claimant up at night multiple times a week, \nas well as pain in the volar forearm with use, weakness in the hand \nand   forearm,   resulting   in   dropping   objects.   Treatments   have \nincluded  postoperative  physical  therapy.  Records  do  not  indicate \nthe  presence  of  abnormal  Katz  diagram  scores,  Flick  sign,  or  the \nfailure   of   conservative   care.   Therefore,   the   request   for   right \nendoscopic   carpal   tunnel   release,   per   CPT   code   29848,   is \nnoncertified.  \n \nOfficial Disability Guidelines conditionally recommend \nDupuytren,  fasciectomy,  or  fasciotomy  for  the  forearm,  wrist,  and \nhand   conditions.   Guidelines   indicate   Dupuytren   release   for \ncontracture  of  the  proximal  or  distal  interphalangeal  joint,  the \nmetacarpophalangeal joint that interferes with hand function, rapid \nprogression   of   finger   contracture,   or   symptomatic   worsening \n\nYousey – H104448 \n \n-14- \nfibromatosis   in   the   hand.   A   progress   note   dated   11/09/2022 \nindicated  the  claimant  has  had  aching  pain  in  the  right  forearm \nwith  use  and  has  a  positive  compression  test  over  the  pronator. \nTreatment  has  included  post-operative  physical  therapy.  Records \ndo  not  indicate  the  presence  of  contracture  or  fibromatosis  in  the \nhand.  Therefore,  the  request  for  the  right  hand  endoscopic  fascial \nrelease forearm, per CPT code 25020, is noncertified.  \n \nOfficial Disability Guidelines do not recommend surgery for radial \ntunnel syndrome. Guidelines indicate surgery is not recommended \nexcept   after   6   months   of   conservative   care   with   abnormal \nelectrodiagnostic  studies  (EDS)  studies  and  objective  signs  of \nfunctional    loss,    noting    outcomes    associated    with    workers’ \ncompensation   have   been   predictably   worse.   10/17/2022   letter \nindicated the claimant has numbness in the 1\nst\n-3\nrd\n right fingers that \nwakes  the  claimant  up  at  night  multiple  times  a  week,  as  well  as \npain  in  the  volar  forearm  with  use,  weakness  in  the  hand  and \nforearm,  resulting  in  dropping  objects.  A  physical  exam  of  the \nright  upper  extremity  noted  a  positive  compression  test  over \npronator tunnel, positive Tinel’s, Phalen’s, and compression test at \nthe   wrist.   The   request   is   not   consistent   with   the   guidelines. \nTherefore, the request for right endoscopic pronator tunnel release, \nper CPT code 64708 is noncertified. \n \nOfficial  Disability  Guidelines  recommend  splints  for  forearm, \nwrist,  and  hand  conditions.  Guidelines  indicate  the  use  of  splints \nfor displaced fractures. 10/17/2022 letter indicated the claimant has \nnumbness  in  the  1\nst\n-3\nrd\n  right  fingers  that  wakes  the  claimant  up  at \nnight  multiple  times  a  week,  as  well  as  pain  in  the  volar  forearm \nwith use, weakness in the hand and forearm,  resulting in dropping \nobjects. Treatments have included post-operative physical therapy. \nRecords  to  not  indicate  the  medical  necessity  of  the  request. \nTherefore,  the  request  for  the  right  lower  arm,  CPT  29125,  is \nnoncertified. \n \n Dr. Knoll’s Physician Advisor Report is in clear disagreement with the recommendation \nof Dr. Kelly’s November 9, 2022, progress note, which was issued after the claimant’s EMG and \nsecond  examination  by Dr.  Kelly.  In  that  progress  note,  Dr.  Kelly  makes  a  recommendation  of \nsurgical intervention. Dr. Knoll, who is licensed in Texas, has never seen the claimant and has no \ndoctor/patient  relationship  with  the  claimant.  Given  the claimant’s  continued  symptoms  of \n\nYousey – H104448 \n \n-15- \nnumbness,  even  after  Dr.  Johnson’s  surgical  intervention  and  conservative  after-care which \nincluded at least 18 physical therapy visits from July 30, 2021, to October 12, 2021, and splinting \nof the claimant’s right upper extremity, I find Dr. Kelly’s surgical recommendations reasonable \nnecessary  medical  treatment  for  the  claimant’s  compensable  right  upper  extremity  injury. \nCertainly,  Dr.  Kelly  is  in  a  superior  position  to  make  recommendations  for  the  claimant’s \nmedical treatment as Dr. Knoll has never seen the claimant. As such, I give much more weight to \nDr. Kelly’s surgical recommendations than the recommendations of Dr. Knoll. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nFebruary  6,  2023,  and  contained  in  a  Pre-hearing  Order  filed  February  7,  2023,  are  hereby \naccepted as fact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nsurgery for his compensable right upper extremity injury as recommended by Dr. James Kelly. \n ORDER \nThe  respondents  shall  pay  the  costs  associated  with  the  surgical  intervention  of  the \nclaimant’s  compensable  right  upper  extremity  as  recommended  by  Dr.  James  Kelly,  including \nthe claimant’s after-care. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \n\nYousey – H104448 \n \n-16- \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":30391,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H104448 LEVI YOUSEY, Employee CLAIMANT BLACKHAWK AUTO & TIRE, Employer RESPONDENT TRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT OPINION FILED JULY 11, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. C...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["fracture","wrist","repetitive","back","cervical","carpal tunnel","neck"],"fetchedAt":"2026-05-19T23:05:12.477Z"},{"id":"alj-H206776-2023-07-10","awccNumber":"H206776","decisionDate":"2023-07-10","decisionYear":2023,"opinionType":"alj","claimantName":"Ennelida Zapet","employerName":"Tyson Poultry","title":"ZAPET VS. TYSON POULTRY AWCC# H206776 JULY 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ZAPET_ENNELIDA_H206776_20230710.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ZAPET_ENNELIDA_H206776_20230710.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H206773 \n \nENNELIDA ZAPET, Employee CLAIMANT \n \nTYSON POULTRY, Employer RESPONDENT \n \nTYNET, Carrier RESPONDENT \n \n \n \n OPINION FILED JULY 10, 2023 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by JEREMY SWEARINGEN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  April  11,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.   A pre-hearing conference was conducted on November 28, 2022, and a Pre-hearing \nOrder  was  filed  on  November  29,  2022.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on October \n1, 2021. \n 3. The respondents have controverted the claim in its entirety. \n By agreement of the parties the issues to litigate are limited to the following: \n\nZapet – H206773 \n \n-2- \n 1. Whether Claimant sustained a compensable injury to her bilateral hands and wrists on \nor about October 1, 2021. \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for  her  bilateral  hand  and  wrist \ninjury. \n 3.  Respondents  raise  lack  of  notice  as  a  defense  in  that  the  September  20,  2022,  AR-C \nwas the first notice of any alleged work-related injury. \n Claimant’s contentions are: \n“Claimant  contends  she  is  entitled  to  treatment  for  her  hands  and \nwrists.” \n \n Respondents’ contentions are: \n \n“A. Respondent contends that the Claimant has offered no proof at \nall  of  her  alleged  bilateral  CTS  condition,  or  that  such  alleged \ncondition  was  caused  by  her  work.  The  Claimant  has  offered  no \nobjective  medical  findings  of  bilateral  CTS,  and  the  Claimant  has \nnot  shared  any  medical  records  with  Respondent  which  support \nsuch a diagnosis. \n \nB. Respondent has no notice of any alleged bilateral CTS condition \nbeing   claimed   as   work-related   until   the   Claimant’s   counsel \nsubmitted  a  prehearing  filing  and  AR-C  on  9-20-22,  not  received \nby  Respondent  until  9-23-22  or  9-26-22.  Thus,  even  if  the  claim \nwere somehow found to be compensable, Respondent would not be \nliable  for  any  benefits  incurred  or  accrued  before  the  date  such \nnotice was received.” \n \n The claimant in this matter is a 50-year-old female who alleges to have sustained bilateral \nhand and wrist injuries in the form of carpal tunnel syndrome on or about October 1, 2021. The \nclaimant  was  at  the  time  of  her  alleged  injuries,  a  production  line  worker  for  the  respondent  in \none of its  chicken processing facilities. The claimant had worked  for the respondent processing \nchickens for multiple years. At the hearing the claimant gave direct examination testimony about \nher alleged injuries and her reporting of those injuries as follows: \n\nZapet – H206773 \n \n-3- \nQ And  in  October  of  2021,  what  problems  did  you  start \nhaving with your hands? \n \nA I couldn’t keep pulling and cutting with a knife. It was like \nthe strength in my hands was gone. \n \nQ And did you have any other symptoms in your hands at that \ntime other than the loss of strength? \n \nA My hands were numb, going to sleep. \n \nQ Did you report those problems to the Tyson nurse? \n \nA Yes. \n \nQ And did you also report problems having pain in your arms \nand shoulders? \n \nA Yes. \n \nQ Did  the  nurse  do  anything  for  you  to  help  your  problems \nwith your hands? \n \nA She just put a bag of cold water on me. \n \nQ So  how  often  would  you  go  in  for  the  treatment,  the  cold \ntreatment? \n \nA They told me that I could come in every day for that until I \nsaw a doctor. \n \nQ And did they ever send you to a doctor? \n \nA No. \n \nQ So what did you do? \n \nA They just kept me working on the same line. \n \nQ And what did you do about seeing a doctor when Tyson did \nnot send you? \n \nA I kept asking them. I insisted and they just kept saying that \nthey   couldn’t   get   an   appointment;   that   the   doctor   wasn’t \nanswering. \n\nZapet – H206773 \n \n-4- \n \nQ So at some point did you go to a doctor on your own? \n \nA Yes. \n \nQ And where did you first go for treatment? \n \nA The hospital in Berryville in February of 2022. \n \n The  respondent  in  this  matter  introduced  a  document  found  at  Respondents’  Exhibit  2, \npage  4  that  is  titled “Team  Member Statement  of  Injury/Illness.”  That  statement  was  signed  by \nthe claimant and provides information about her reporting of an injury on October 2, 2021. The \nquestions  on  the  form  are  typed,  but  the  responses  are  filled  out  in  handwriting.  I  note  that  the \nhandwriting is in English, and that the claimant does not write or speak English fluently. It was \nher  testimony  that  she  did  not  write  the  words  on  this  statement.  One  of  the  questions  asked \nstates, “Describe  fully  how  the  injury  happened  (or  what  your  pain  or  problem  is)?”  The \nhandwritten response is, “As I was pulling breasts I got pain in both shoulders but especially the \nleft  shoulder.”  Another  question  on  the  form  asks, “What  part  of  your  body  was  injured?”  The \nhandwritten  portion  states, “Left  shoulder/right  shoulder.”  There  are  two  images  of  the  human \nform  addressing  the  locations  of  the  claimant’s  pain  or  problems.  There  are  marks  over  what I \nwould  term  as  the  shoulder  and  a  portion  of  the  neck  area  of  the  claimant.  That  report  also \nindicates  the  injury  was  reported  on  October  2,  2021,  and  that  the  claimant  reported  it  to  a \nsupervisor. On that same day, October 2, 2021, a Form AR-N was at least partially filled in. I’ll \nnote that on this Form AR-N the questions are printed in English, however, the responses to two \nof  the  questions  are  answered  in  Spanish.  Following  is  a  portion  of  the  hearing  transcript  at \nwhich time the interpreter in this matter interprets those English questions and Spanish answers \non this AR-N found at Respondents Exhibit 2, page 2, as follows: \n\nZapet – H206773 \n \n-5- \nTHE INTERPRETER: This section right here? \n \nTHE COURT: Yes, ma’am. \n \nTHE  INTERPRETER:  Okay.  The  question  is, “What  part  of  your \nbody   was   injured?”   And   the   handwritten   response is, “Both \nshoulders, right and left.” \n \nAnd then the form asks, “Briefly discuss the cause of injury.” And \nagain, the handwritten response is, “When I pull down the breasts.” \n \n Nursing  notes  from  the  respondent/employer  were  also  introduced  into  evidence.  Some \nnursing  notes  were  introduced  into  evidence  by  the  respondent,  others  by  the  claimant.  At \nClaimant’s Exhibit 2, page 1, there is a nursing note from October 5, 2021. That note states: \nTM  to  OHS  for  bilateral  shoulder  pain.  Pain  level  today  is  4/10. \nCold applied to both shoulders for 15 minutes with pain level now \n2/10.  TM  returned  to  full  duty  and  will  return  10/6/21  @  0900  or \nsooner if needed. TM denies need of biofreeze or oral meds at this \ntime. \n \n The respondent also introduced a Team Member Statement dated January 12, 2022. That \nTeam  Member  Statement  is  found  at  Respondents’  Exhibit  2,  page  3.  Again,  all  the  questions \nthat are printed are asked in English and the responses are handwritten in English. A question on \nthe  form  asks, “Describe  in  detail  the  job  you  were  doing  at  the  time  of  the  injury  (or  what  is \ncausing your pain or problem)?” The handwritten response is, “Pulling breast.” Another question \nasks, “Describe  fully  how  the  injury  happened  (or  what  your  pain  or  problem  is)?”  The \nhandwritten  response is, “The line  is  very  fast.”  Another  question  asks, “What  machines,  tools, \nsubstances  and/or  objects  were  involved  in  the  injury  (or  in  your  pain  or  problem)?”  The \nhandwritten  response  is, “Pulls  with  hands.”  There  are  also  two  images  of  the  human  form \naddressing the locations of the claimant’s pain or problems. On this form there are Xs made on \nthe claimant’s shoulders. This document was signed by the claimant in this matter. A Form AR-\n\nZapet – H206773 \n \n-6- \nN was also completed on January 12, 2022. That form is an English form. The printed questions \nare  in  English,  and  the  handwritten  responses  are  in  English,  as  well.  This  form  was  signed by \nthe claimant. It appears that the claimant’s signature is dated January 13, 2022, while the date the \nemployer  was  notified  of  the  accident  is  January  12,  2022.  Questions  indicate, “What  part  of \nyour  body  was  injured?”  The  handwritten  response, “Both  shoulders.”  Another  question, \n“Briefly  discuss  the  cause  of  injury.”  The  handwritten  response, “Pulling  breast,  strained \nshoulders.”  A  nursing  note  is  also  found  at  Claimant’s  Exhibit  2,  page  1,  regarding  that  same \nJanuary 12, 2022, date. Following is a portion of that report: \nSubjective:  TM  reports  to  OHS  complaining  of  pain  in  bilateral \nshoulders. Pain level 9/10. \n \nObjective: TM arrives to OHS with SV Ken Kerner complaining of \nbilateral shoulder pain. \n \nAssessment:  No  swelling,  redness  or  discoloration  noted.  TM \nexhibits full range of motion. \n \nPlan:  Cold  application  x  15  minutes  2-3  times  daily;  return  to \nregular duties; return to OHS 12/13/2022 at start of shift for follow \nup. \n \nIntervention: Cold application x 15 minutes to bilateral shoulders. \n \nEvaluation:  TM  returns  to  regular  duties.  TM  to  return  to  OHS \n12/13/22 prior to shift start. \n \n It  appears  from  those  nursing  notes  that  the  claimant  continued  to  return  to  the  nursing \nstation  on  January  18,  2022,  January  20,  2022,  and  then  on  January  24,  2022,  the  nursing  note \nstates, “The claimant is no longer having shoulder pain.” The claimant was released to return as \nneeded.  On  February  22,  2022,  the  claimant  is  again  seen  at  the  respondent’s  nursing  station. \nFollowing is a portion of that record, found at Claimant’s Exhibit 2, page 1, and continued onto \npage 2: \n\nZapet – H206773 \n \n-7- \nSubjective: TM to OHS with SV K. Kerner with complaint of pain \nin  her  upper  back  while  pulling  breasts.  TM  Has  had  problems \nwith  her  upper  back  and  left  shoulder  before  since  2019.  TM \nreports that it started hurting when she had to cover her co worker \nwhile  she  was  on  break.  Pain  level  4/10.  TM  wishes  to  sign \nDeclination of treatment and go to her own Dr. \n \nObjective: Pain from the base of the neck down to mid back. Pain \nmoves to left shoulder at times. \n \nAssessment: TM with full ROM. \n \nPlan: TM to return as needed. \n \nIntervention: No intervention. \n \nEvaluation: TM signed Statement of declination and left in care of \nSV K. Kerner. \n \n It is the claimant’s testimony that she was unable to get the treatment she needed from the \nrespondent and that the claimant sought treatment on her own. Apparently, the claimant was seen \nat  the  Berryville  Hospital  Emergency  Department  on  February  23,  2022.  I  note  that  there  is  no \nmedical record regarding that visit other than a work restriction note found at Claimant’s Exhibit \n1, page 2. That note does not indicate what body part was injured or restricted. It does say, in a \nportion  of that  report, “Work  restrictions  (if  applicable);  left,  right.”  That  restriction  document \nalso limits the claimant to 5 lbs. of lifting in her upper extremities for one week and the claimant \nwas released to return to work on February 28, 2022. \n The first medical record  that we have, other than the respondent’s nursing notes and the \nrestriction  note  from  the  Berryville  Hospital  Emergency  Department,  is  a  Mercy  Clinic  of \nBerryville  medical  record  at  which  time  the  claimant  was  seen  by  Dr.  Jonathan  Fausett. \nFollowing is a portion of that medical record: \n48 y.o. female \nA/P \n\nZapet – H206773 \n \n-8- \nNeck pain with carpal tunnel symptoms \n-Hxn of breast cancer with almost a year since PET scan and poor \ncompliance with tamoxifen concerning for bone met. Will do MRI. \n-Consider EMG \n-provided with wrist splints \n-tamoxifen used inconsistently but can contribute to numbness \n-encouraged   to   consider   nerve   health   based   vitamins   like   B \nvitamins and folate \n-has had an abnormal TSH in past, will repeat \n-cbc to check for anemia \n-nerve  impingement  most  likely  diagnosis  due  to  manner  of  work \nbut at risk of other physiological causes \n \n*** \nHPI \n48  y.o.  female  presenting  for  follow  up  ER  visit  for  neck  pain. \nSubjective  weakness  reported  at  the  time  but  normal  strength  on \nexam. No red flag symptoms noted at the time. Overall symptoms \nprogressing  since  October. “Fire  and  numbness”  in  hands.  Worse \nwhen pulling downward at work. Right hand dominant. \n \nContinues to be obese with weight similar to previous. \nDoes  have  hxn  of  breast  cancer.  Last  PET  early  last  year.  Still  on \ntamoxifen.  No  chemo  txn.  Periodic  use  of  tamoxifen,  symptoms \npredate most recent resuming of meds. \n \nDenies fever, chills, bowel/bladder incontinence. \n \nThe  claimant  had  previously  dealt  with  breast  cancer.  However,  Dr.  Fausett’s  medical  record \ndoes indicate neck pain with carpal tunnel symptoms at this time. It should be noted that later in \nthe medical records it is determined that the claimant’s current symptomology does not involve a \nrecurrence  or  the  existence  of  cancer.  However,  medical  records  indicate  that  was  of  great \nconcern when the claimant was originally being diagnosed.  \n The claimant is again seen by Dr. Fausett on May 5, 2022. Following is a portion of that \nmedical record: \nA/P \n48 y.o. female \n \n\nZapet – H206773 \n \n-9- \nNeck pain with radiation to hands \n-MRI  pending.  Biggest  concern  is  potential  for  bone  metastasis \nsince hxn of breast cancer and poor compliance with tamoxifen. \n-didn’t respond to wrist splints \n-consider EMG if MRI equivocal \n-gabapentin for “burning” type pain \n \nHPI: \n48 y.o. female \n \nCC \nChronic neck pain \n-does  have  active  job  requiring  bending  over  and  craning  neck. \nHxn  of  breast  cancer  with  poor  compliance  with  tamoxifen,  MRI \npending   to   eval   for   spinal   stenosis   or   bone   mets.   Seen   for \nexacerbation  by  ARPN  and  given  tramadol  at  that  time.  Some \nbenefit  noted  from  txn.  Continues  to  have “Burning”  in  shoulders \nand hands and pain in neck. Some subjective fever and chills. \n \n The  claimant  during  this  period  of  time  had  been  restricted  from  work  and  Dr.  Fausett \ncompleted  a  Disability  and  FMLA  Medical  Certification  for  the  claimant.  Those  certifications \nare  found  at  Claimant’s  Exhibit  1,  pages  3-8.  I  will  note  that  all  of  these  documents  are  very \nsimilar  in  nature  and  appear  just  to  extend  timeframes  out.  Looking  at  the  document  at \nCl   aimant’s Exhibit 1, page 3, it appears that the doctor has indicated both illness and injury, and \nunknown  as  to  whether  work-related  in  answer  to “Which  of  the  following  describes  your \npatient’s  medical  condition  (please  check  all  that  apply).”  I’ll  also  note  that  the  treatment  plan \nprovided  on  this  form  is “advanced  imaging,  wrists  splints,  TSH/CBC/CMP.”  Some  places \nwhere you would expect answers, such as “What are your patient’s restrictions?” are left blank, \nand the question as to “What is the medical condition that is causing your patient not to be able \nto  work?”  is  also  left  blank.  Diagnostic  codes  are  available  on  this  document,  but  it  in  and  of \nitself, does not explain what the claimant’s condition is.  \n\nZapet – H206773 \n \n-10- \n The  claimant  was  seen  by  Dr.  Miles  Johnson  at  Northwest  Arkansas  EMG  Clinic to \nundergo  a  neurological  evaluation  regarding  her  complaints  of  neck  pain,  bilateral  hand  pain, \nnumbness, and tingling. Following is a portion of that medical record: \nHISTORY OF PRESENT ILLNESS: Patient is a 48-year-old right-\nhanded  female  with  a  5-month  history  of  neck  pain  that  radiates \ninto  the  bilateral  upper  extremities.  She  has  pain,  numbness  and \ntingling in the hands and first through fifth digits bilaterally. There \nis some grip weakness. Symptoms are often worse at night or with \nrepetitive    activity.    Some    improvement    with    shaking    the \nextremities. Patient has been seen by Dr. Fausett and is referred for \nelectrodiagnostic testing of the bilateral upper extremities. \n \n*** \nSUMMARY:   Median   motor   distal   latencies   are   prolonged \nbilaterally,  right  worse  than  left.  Amplitudes  decreased  on  the \nright.   Ulnar   motor   study   is   normal   bilaterally.   Right   medial \northodromic  latency  difference  is  abnormal.  Median  amplitude  is \ndecreased.  Radial  sensory  response  is  normal  bilaterally.  EMG \nexamination  of  the  bilateral  upper  extremities  revealed  reduced \nrecruitment in the APB bilaterally. \n \nASSESSMENT:  Bilateral  carpal  tunnel  syndrome.  This  is  severe \non  the  right  and  moderately  severe  on  the  left.  There  is  no \nelectrodiagnostic evidence of radiculopathy, plexopathy, \ngeneralized   peripheral   neuropathy   or   other   peripheral   nerve \nentrapment syndromes. \n \nPLAN:  Patient  has  been  counseled  regarding  the  above  findings \nand  has  been  instructed  to  schedule  a  followup  appointment  in \nyour office for further evaluation in order to utilize these results in \nthe  treatment/management  of  their  condition.  Would  recommend \nevaluation  for  bilateral  carpal  tunnel  releases  beginning  on  the \nright. \n \n The  claimant  is  eventually  seen  on  February  22,  2023,  by  Dr.  Andreas  Chen  at  Mercy \nClinic Northwest Arkansas. Following is a portion of that medical record. \nCHIEF COMPLAINT: Bilateral hand numbness and tingling. \n \nHISTORY OF PRESENT ILLNESS:  A   49-year   old   right-hand \ndominant  female,  who  works  at  Tyson,  who  presents  today  for \n\nZapet – H206773 \n \n-11- \nevaluation of her bilateral upper extremities. She states that she has \npreviously  seen  Dr.  Sidani  in  Harrison  and  was  told  that  she \nneeded to be on workman’s comp for her bilateral upper extremity \ntingling. She states that it has been tingling for greater than 1 year. \nIt  bothers  her  when  she  is  at  work.  She  does  not  sleep  very  well \nbecause of her tingling. It worsens whenever she drives. She states \nthat  it  happens  in  her  whole  hand.  It  gets  worse  whenever  she  is \ndoing laundry and her dishes. \n \nShe   initially   states   that   she   had   a   workman’s   compensation \napplication  open  for  this;  however,  today’s  visit  is  not  under \nworkmen’s compensation. I told her that if she wants, we can put it \nunder  workmen’s  compensation,  but  she  would  have  to  make \nanother   visit.   If   she   wishes   to   proceed   without   workmen’s \ncompensation, we will even charge her private insurance.  We will \nbe unable to get her from private insurance to workmen’s comp if \nshe has not rescheduled her visit today. She wishes to do this under \nprivate insurance since it has been bothering her. \n \n*** \nASSESSMENT: A 49-year-old female with bilateral carpal tunnel \nsyndrome. \n \nPLAN:    This    was    confirmed    under    physical    examination \nelectrodiagnostic  testing.  She  has  worn  braces  and  it  has  not  been \nsuccessful to get rid of the carpal tunnel completely. At this point, I \nwould recommend carpal tunnel releases. Risks and benefits of the \nsurgery were discussed with the patient in great detail. The patient \nhas agreed with written informed consent. We will do it at the next \navailable date under general anesthesia. \n \n On March 1, 2023, the claimant underwent bilateral carpal tunnel release. The operative \nreport is found at Claimant’s Exhibit 1, pages 55-56. \n It  is  the  claimant’s  burden  to  prove  that  she  sustained  compensable  bilateral  hand  and \nwrist injuries in the form of carpal tunnel syndrome. In order to do so she must be able to prove \nthe existence of objective medical findings. The claimant is able to do so from her June 9, 2022, \nEMG  report  by  Dr.  Johnson  which  found  bilateral  carpal  tunnel  syndrome,  and  Dr.  Chen’s \nMarch 1, 2023, operative report. \n\nZapet – H206773 \n \n-12- \n The  claimant  must  also  prove  a  causal  connection  between  those  objective  medical \nfindings and the injuries she alleges at work. The claimant was certainly using her bilateral upper \nextremities vigorously in her work using her hands to remove chicken breasts from bone in a line \nproduction.   The   claimant’s Team   Member   Statement   of   Injury/Illness,   AR-N forms   and \nrespondent’s  nursing  notes  are  of  concern  as  it   appears  the  claimant’s  complaints  were \nconsistently  in  her  bilateral  upper  extremities  but  focused  only  on  her  shoulders  bilaterally. \nHowever, they also indicate that injury occurred “while pulling breasts.” The claimant was asked \non cross examination about her complaints being of her bilateral shoulders and not her hands and \nwrists bilaterally as follows: \nQ When  you  reported  your  problems  to  Tyson  in  October  of \n2021,  did  you  indicate  to  them  only  that  you  had  problems  with \nyour shoulders and not your hands? \n \nA Well,  they  don’t  have  anyone  there  to  translate,  so  I  could \njust make signals like this (indicating). \n \n MR. SWEARINGEN: May I approach, Judge? \n \n THE COURT: You may. \n \nQ [BY  MR.  SWEARINGEN]:  Ma’am,  I  am  showing  you  a \ndocument which is a Team Member Statement of Injury or Illness. \nIs that your signature down on the bottom of this document? \n \nA Yes,  but  my  supervisor  was  the  one  that  filled  all  of  that \nout. \n \nQ Did  you  draw  on  the  figure  here  where  your  symptoms \nwere located in both shoulders? \n \nA They  are  the  ones  that  did  that.  I  was  the  one  that  was \nmaking a sign like this (indicating), meaning my hands. \n \nQ When  you  signed  the  document,  if  you  felt  like  you  had \nsymptoms  in  your  hands,  would  you  not  indicate,  even  on  the \ndrawing, some kind of problems in either hand? \n\nZapet – H206773 \n \n-13- \n \nA Well, the thing was that my supervisor was trying to hurry \nme  back  to  the  line.  They  were  trying  to  do  this  very  quickly  and \nhurry me back, so I didn’t have time to really look at it. Plus, I was \nin pain. I just wanted to go to the doctor. \n \nQ Ma’am, I am showing you another document dated it looks \nlike January 12\nth\n of 2022. Is this your signature on this document? \n \nA Yes. \n \nQ And  this  indicates  that  you  reported  the  problems  January \nthe 12\nth\n of 2022? \n \nA Yes. \n \n MS. BROOKS: Excuse me, Jeremy, is this in evidence? \n \n MR.    SWEARINGEN:    No,    I    didn’t    introduce    this \ndocument. It was exchanged in discovery. \n \n MS.  BROOKS:  I  didn’t  know  you  were  going  to  be \nquestioning her off of that. I have nothing to reference. \n \n MR.  SWEARINGEN:  I  can  give  you  a  copy  of  it.  You \nhave a copy, though. \n \nQ [BY  MR.  SWEARINGEN]:  Ma’am,  on  this   document \ndated  January  the  12\nth\n  of  2022,  did  you  mark  that  your  problems \nwere in both shoulders, but not in your hands? \n \nA Well, I was in pain. My whole body was in pain, this whole \narea  (indicating).  You  just  don’t  know  how  much  pain  I  was  in. \nAnd I told them that, but they just marked that. \n \nQ But yet you still signed it? \n \nA Yes,  because  they  always  said, “Just  sign  it  quickly.  Be \nquick about it so we can get back to the line.” \n \nQ I  am  showing  you  another  document  which  is  a  Form  N \ndated October 2, 2021. And is this your handwriting? \n \nA Yes. \n \n\nZapet – H206773 \n \n-14- \nQ And  I  don’t  speak  Spanish  but  it  looks  like  the –  and  the \nform is in Spanish; is that correct? \n \nA Yes. \n \nQ And  where  it  asks  about  what  body  part  was  injured,  it \nlooks like it says, “Los ombros derecho y izquierdo,” which in my \nbroken  Spanish  soulds  like  the  shoulders,  right  and  left.  Is  that \ncorrect? \n \nA Yes, but for me shoulders means the whole arm. \n \n*** \nQ [BY   MR.   SWEARINGEN:]   So,   ma’am,   is   it   your \ntestimony  that  when  you  wrote  shoulders,  you  meant  to  include \nyour entire arms on both sides? \n \nA Yes, the whole arm. \n \n The  claimant’s  first  actual  medical  record  that  recounts  symptomology  and  possible \ndiagnosis is the claimant’s visit with Dr. Fausett, who speaks Spanish, on March 16, 2022, and \nthat record reflects “neck pain with carpal tunnel symptoms.” It appears that when the claimant \nmade  complaints  to  the  respondent  something  was  lost  in  translation  or  understanding  of  her \ncomplaints. The claimant was “pulling breasts” when she was injured, which was communicated \nbut her complaints were not understood or simply ignored. Dr. Fausett, at his first visit with the \nclaimant, was able to understand and document the claimant’s bilateral carpal tunnel  symptoms \nthat  were  later  proven  correct  through  diagnostic  testing  and  surgical  intervention.  Here,  the \nclaimant  is  able  to  prove  a  causal  connection  between  her  work “pulling  breasts”  and  her \nobjective medical findings. The claimant able to prove by a preponderance of the  evidence that \nshe sustained compensable bilateral carpal tunnel syndrome to her hands and wrists.  \n The  respondent  in  this  matter  has  raised  the  Notice  Defense  in  that  the  September  20, \n2022,  AR-C  filed  by  the  claimant  was  the  first  notice  of  any  alleged  work-related  injury.  The \n\nZapet – H206773 \n \n-15- \nclaimant  clearly  alleged  in  documents  the  respondent  provided  to  her  that  she  was  injured  at \nwork “pulling  breasts”  as  early  as  October  2,  2021.  As  stated  above  in  the  discussion  of \ncausation,  the  claimant’s  lack  of  English  speaking  and  writing  ability  caused  confusion  in  the \nunderstanding  of  the  claimant’s  complaints.  When  paired  with  a  Spanish  speaking  medical \nprovider,  the  claimant  in  her  first  visit  described  bilateral  carpal  tunnel  syndrome  symptoms.  I \nfind  that  the  respondent  was  put  on  notice  at  that  time,  in  October  2021,  when  the  claimant \nalleged  injury “pulling  breasts.”  While  diagnosis  of  bilateral  carpal  tunnel  syndrome  took  time, \nwhich was lengthened and complicated by the claimant’s previous breast cancer diagnosis, it did \nimmediately  get  underway  when  communication  was  clear.  The  respondent  was  placed in  a \nposition  to  have  reasonable  notice  when  the  claimant  explained  or  communicated  in  the  only \nmanner she could. I find the claimant’s testimony credible that she did as much. \n The  claimant  has  asked  the  Commission  to  determine  if  she  is  entitled  to  medical \ntreatment  for  her  bilateral  carpal  tunnel  syndrome.  The  claimant  is  entitled  to  reasonable  and \nnecessary  medical  treatment  for  her  compensable  bilateral  carpal  tunnel  syndrome  and its \ndiagnosis.  The  claimant  is  also  entitled  to  reimbursement  of  out-of-pocket  expenses  for  that \nreasonable and necessary medical treatment. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe  her demeanor, the following  findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n \n \n \n\nZapet – H206773 \n \n-16- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nNovember 28, 2022, and contained in a Pre-hearing Order filed November 29, 2022, are hereby \naccepted as fact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  sustained  a \ncompensable  injury  to  her  bilateral  hands  and  wrists  on  or  about  October  1,  2021;  that  injury \nspecifically being in the form of bilateral carpal tunnel syndrome. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nreasonable   and   necessary   medical   treatment   for   her   compensable   bilateral   carpal   tunnel \nsyndrome. \n 4. The respondent is unable to prove the lack of notice defense in this matter. \n ORDER \nThe respondents shall pay for the reasonable  and  necessary medical treatment regarding \nthe  claimant’s  compensable  bilateral  carpal  tunnel  syndrome.  The  respondents  shall  also \nreimburse  the  claimant  for  any  out-of-pocket  medical  expenses  regarding  that  reasonable  and \nnecessary medical treatment. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n\nZapet – H206773 \n \n-17- \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":30267,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H206773 ENNELIDA ZAPET, Employee CLAIMANT TYSON POULTRY, Employer RESPONDENT TYNET, Carrier RESPONDENT OPINION FILED JULY 10, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant represented by EVEL...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["wrist","carpal tunnel","shoulder","neck","back","repetitive"],"fetchedAt":"2026-05-19T23:05:04.178Z"},{"id":"alj-G902659-2023-07-06","awccNumber":"G902659","decisionDate":"2023-07-06","decisionYear":2023,"opinionType":"alj","claimantName":"Clarence Guthrie","employerName":"Whitten Concrete Co","title":"GUTHRIE VS. WHITTEN CONCRETE CO. AWCC# G902659 & G903849 JULY 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GUTHRIE_CLARENCE_G902659_G903849_20230706.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GUTHRIE_CLARENCE_G902659_G903849_20230706.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM Nos. G902659 & G903849 \n \nCLARENCE GUTHRIE, EMPLOYEE          CLAIMANT \n \nWHITTEN CONCRETE CO., EMPLOYER               RESPONDENT  \n \nMIDWEST INSURANCE CO. CARRIER/TPA                           RESPONDENT \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND       RESPONDENT \n \nOPINION FILED 6 JULY 2023 \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on 3 May 2023. \n \nClarence  Guthrie,  deceased,  failed  to  appear.  No  person  appeared  on  behalf  the \nestate of Mr. Guthrie. \n \nMr.  Michael C.  Stiles,  Attorney-at-Law,  appeared  on  behalf  of  the  respondent \nemployer and carrier. \n \nThe Trust Fund waived its appearance. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  3  May 2023,  in  Little  Rock, \nArkansas, on respondents’ Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode Ann. § 11-9-702 and/or Rule 099.13 of the Arkansas Workers’ Compensation Act.  The \nclaim involves workplace injuries occurring on or about 19 April 2019 and 12 June 2019, in \nclaims  G902659  and  G903849,  respectively.  An  employer/employee  relationship  existed  at \nthe time of the accidents, and both claims were accepted as compensable, with benefits paid \non each of those claims.  \nThe  claimant  passed  away, from  causes  apparently  unrelated to  either  injury, on  3 \nOctober  2021.  Around  the  time  of  the  claimant’s  passing,  discussions  were  held  around \npossible  settlement  on  both  open  claims.  Those  efforts  were  frustrated  by  the  difficulty \naround finding an appropriate administrator or administratrix for the claimant’s estate, and \n\nGuthrie- G902659 & G903849 \n2 \n \nthe claimant’s attorney ultimately withdrew representation, with leave of the Commission, \non 23 February 2022.  \n The  claims  sat  undisturbed  until  the  respondents  filed  their  Motion  to  Dismiss  for \nwant of prosecution on 24 February 2023. Since that time, again, no party has come forward \nto act on behalf of the claimant’s estate. Given the passage of time, the respondents’ Motion \nis appropriate. \n Based  on  the  record, counsel’s  representations,  and  evidence  before  me,  I  am \ncompelled to find that the Motion to Dismiss should be granted due to the claimant’s lack of \nprosecution and the matter should be dismissed without prejudice.  \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice at this time.   \nSO ORDERED. \n \n \n      _____________________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2754,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM Nos. G902659 & G903849 CLARENCE GUTHRIE, EMPLOYEE CLAIMANT WHITTEN CONCRETE CO., EMPLOYER RESPONDENT MIDWEST INSURANCE CO. CARRIER/TPA RESPONDENT DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT OPINION FILED 6 JULY 2023 Hearing before Administrative La...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:05:02.096Z"},{"id":"alj-H201703-2023-07-05","awccNumber":"H201703","decisionDate":"2023-07-05","decisionYear":2023,"opinionType":"alj","claimantName":"Barenica Bright","employerName":"Viskase Companies, Inc","title":"BRIGHT VS. VISKASE COMPANIES, INC. AWCC# H201703 JULY 5, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BRIGHT_BARENICA_H201703_20230705.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRIGHT_BARENICA_H201703_20230705.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H201703 \n \nBARENICA BRIGHT, EMPLOYEE CLAIMANT \n \nVISKASE COMPANIES, INC., EMPLOYER RESPONDENT \n \nTRUMBULL INS. CO., CARRIER RESPONDENT \n \nTHE HARTFORD, TPA                                                                             RESPONDENT \n \nOPINION FILED JULY 5, 2023 \n \nHearing before Administrative Law Judge Steven Porch on June 9, 2023, in Jonesboro, \nArkansas. \n \nClaimant represented by Mr. Bill E. Bracey, Jr., Attorney at Law, Blytheville, Arkansas. \n \nRespondents  represented  by  Mr.  A.  Gene  Williams,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held on this claim on June 9, 2023.  Claimant was represented by \nMr.  Bill  E.  Bracey,  Jr.,  Attorney  at  Law  of  Blytheville,  Arkansas;  Respondents  were \nrepresented by Mr. A. Gene Williams, Attorney at Law of Little Rock, Arkansas. \nSTIPULATIONS \n By agreement of the parties, the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n \n2. An  employer/employee  relationship  existed  on  February  21,  2020, \nwhen  Claimant  alleges  she  sustained  a  compensable  injury  to  her \nleft pointer finger and left middle finger. \n \n3. Respondents  have  accepted  this  as  a  medical  only  claim  and \nprovided medical care until May 12, 2020. \n \n 4.  The  parties  will  stipulate  to  Claimant’s  average  weekly  wage  and \ncompensation rates on or before the hearing date. \n \n\nBRIGHT H201703 \n \n2 \n \nISSUES \n By  agreement  of  the  parties,  the  issues  to  be  presented  at  the  hearing  are  as \nfollows: \n1.  Whether Claimant sustained a compensable injury to her left pointer finger and \nmiddle finger. \n \n2.  Whether  Claimant  is  entitled  to  any  additional  reasonable  and  necessary \nmedical treatment after May 12, 2020. \n \n3.  Whether  Claimant  is  entitled  to  temporary  total  disability,  temporary  partial \ndisability, and permanent partial disability benefits (dates yet to be determined).  \n \n4.  Whether  the  statute  of  limitations  has  run  on  Claimant  seeking  additional \nbenefits. \n \n5. Whether Respondent had proper notice of Claimant’s injuries. \n \n6.  Attorney’s fee.  \n \nAll other issues are reserved. \n \nCONTENTIONS \n \nClaimant’s  and  Respondents’  contentions  are  set  out  in  their  responses  to  the \nPrehearing Questionnaire.  Said contentions are hereby incorporated by reference.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother matters properly before the Commission, and having had an opportunity to hear the \ntestimony of the  Claimant, the sole  witness in this claim, and observe her demeanor, I \nhereby make the following findings of fact and conclusions of law in accordance with Ark. \nCode Ann. § 11-9-704 (Repl. 2012): \n1.  The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n\nBRIGHT H201703 \n \n3 \n \n2.  The stipulations set forth above are reasonable and are hereby accepted.  \n3.  The  Claimant  is  not  entitled  to  additional  medical  treatment  for  her  cervical \nspine, left shoulder, arm, and hand. \n4.  Because the parties have not stipulated that Claimant sustained a compensable \ninjury to her cervical spine, left shoulder, arm and hand or made such alleged \ninjuries an issue in this claim, the Commission cannot address the remaining \nissues in this claim. Instead, these issues will be considered reserved. \nCASE IN CHIEF \nSummary of Evidence \n The  sole  witness  at  the  hearing  was  the  Claimant.  In addition  to the  prehearing \norder  discussed  above,  also  admitted  into evidence  was Claimant’s  and  Respondent’s \nexhibits that were properly admitted before the Commission. Claimant suffered an injury, \nduring the course and scope of her employment with Viskase Inc., when her left pointer \nand middle fingers got caught in the spring and clutch of an extrusion machine. The injury \nresulted in a cut to the former and a twist to her latter.  This injury occurred on February \n21, 2020. Claimant immediately went to the hospital after her injury and received a tetanus \nshot and was released to returned to work the same day. The extrusion machine did not \njerk her body, in any way, when her fingers were caught or immediately removed from \nthe spring and clutch of the machine. The only effect of the incident was on the Claimant’s \nfingers. Respondents’ accepted Claimant’s injury to her left pointer and middle fingers as \na medical-only claim. As the parties have stipulated, and I have accepted, these injuries \nwere compensable.  \n \n\nBRIGHT H201703 \n \n4 \n \nAdjudication \nA.  Whether Claimant sustained a compensable injury to her left pointer finger and \nmiddle finger. \n Claimant has alleged that she suffered compensable injuries by specific incident \nto  the  above-cited  body  parts  on  February  21,  2020,  while  working  on  an extrusion \nmachine. Since the parties have stipulated to this, there is no issue for me to address.   \nB.  Whether  Claimant  is  entitled  to  any  additional  reasonable  and  necessary \nmedical treatment after May 12, 2020? \n The  Claimant  is  asking  the  Commission  for  reasonable  and  necessary  medical \ntreatment  for  alleged  injuries  to  her  cervical  spine,  left  shoulder,  arm,  and  hand.  The \nClaimant underwent a nerve conduction study, cubital and carpal tunnel surgical releases \ninvolving her elbow and wrist. For me to be able to address this issue, the parties must \neither 1.) have stipulated to the compensability of the alleged injuries or 2.) raised it as an \nissue regarding such. They have done neither. Therefore, I am not able to address this \nissue. Administrative Law Judges cannot legally raise issues sua sponte. See Carthan v. \nSchool Apparel, Inc. 2006 AWCC 182, Claim No. F410921 (Full Commission Opinion filed \nNovember  28,  2006)  (improper  for  administrative  law  judge  to  address  issues sua \nsponte);  Singleton  v.  City  of  Pine  Bluff,  2006  AWCC  34,  Claim  No.  F302256  (Full \nCommission  Opinion  filed  February  23,  2006), rev’d on other grounds,  No.  CA06-398 \n(Dec. 6, 2006) (unpublished)(same). \nC.  Remaining Issues \nBecause of the foregoing, the remaining issues of whether Claimant is entitled to \ntemporary total disability, temporary partial disability, permanent partial disability benefits, \n\nBRIGHT H201703 \n \n5 \n \nwhether  and  when  did  Respondents  gave  notice  to  the  employer,  and whether  she  is \nentitled to a controverted attorney fee, are moot and will not be addressed. Respondents \nalso raised a statute of limitations argument. But considering the foregoing, this issue is \nalso moot and will not be addressed. \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth  above, \nthese claims are hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. Steven Porch \n                                                                           Administrative Law Judge","textLength":7194,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H201703 BARENICA BRIGHT, EMPLOYEE CLAIMANT VISKASE COMPANIES, INC., EMPLOYER RESPONDENT TRUMBULL INS. CO., CARRIER RESPONDENT THE HARTFORD, TPA RESPONDENT OPINION FILED JULY 5, 2023 Hearing before Administrative Law Judge Steven Porch on June 9, 2023, in Jone...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:2","denied:1"],"injuryKeywords":["cervical","shoulder","carpal tunnel","wrist"],"fetchedAt":"2026-05-19T23:04:55.829Z"},{"id":"alj-H207232-2023-07-05","awccNumber":"H207232","decisionDate":"2023-07-05","decisionYear":2023,"opinionType":"alj","claimantName":"Aretha Dawson","employerName":"Birch Tree Communities","title":"DAWSON VS. BIRCH TREE COMMUNITIES AWCC# H207232 JULY 5, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DAWSON_ARETHA_H207232_20230705.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DAWSON_ARETHA_H207232_20230705.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nWCC NO. H207232 \n \nARETHA DAWSON, EMPLOYEE                                                        CLAIMANT   \nVS. \nBIRCH TREE COMMUNITIES, EMPLOYER                                  RESPONDENT \nATA WC SI TRUST, CARRIER \nRISK MANAGEMENT RESOURCES, TPA                                    RESPONDENT \n \n ORDER OF DISMISSAL FILED JULY 5, 2023 \n Upon motion of Respondents, and with the concurrence of Claimant via \nInterrogatories, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n \n                                                                   ________________________________ \n                                                                   STEVEN PORCH \n                                                                   ADMINISTRATIVE LAW JUDGE","textLength":829,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H207232 ARETHA DAWSON, EMPLOYEE CLAIMANT VS. BIRCH TREE COMMUNITIES, EMPLOYER RESPONDENT ATA WC SI TRUST, CARRIER RISK MANAGEMENT RESOURCES, TPA RESPONDENT ORDER OF DISMISSAL FILED JULY 5, 2023 Upon motion of Respondents, and with the concurrence of Claimant ...","outcome":"dismissed","outcomeKeywords":["dismissed:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:04:57.886Z"},{"id":"alj-G900188-2023-07-05","awccNumber":"G900188","decisionDate":"2023-07-05","decisionYear":2023,"opinionType":"alj","claimantName":"Clayton Mcwilliams","employerName":"Arkansas State Police","title":"MCWILLIAMS VS. ARKANSAS STATE POLICE AWCC# G900188 JULY 5, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MCWILLIAMS_CLAYTON_G900188_20230705.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCWILLIAMS_CLAYTON_G900188_20230705.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G900188 \n \nCLAYTON MCWILLIAMS,   \nEMPLOYEE CLAIMANT \n \nARKANSAS STATE POLICE, \nEMPLOYER RESPONDENT NO. 1 \n \nSTATE OF ARKANSAS/PUBLIC EMPLOYEE \nCLAIMS DIVISION, INSURANCE CARRIER/TPA   RESPONDENT NO. 1 \n \nSTATE OF ARKANSAS \nDEATH & PERMANENT TOTAL DISABILITY \nTRUST FUND RESPONDENT NO. 2 \n \n \nOPINION AND ORDER FILED JULY 5, 2023 \n \nHearing conducted on April 6, 2023, before the Arkansas Workers’ Compensation Commission \n(AWCC), Administrative Law Judge (ALJ) Mike Pickens in El Dorado, Union County, Arkansas. \nThe  claimant  was  represented  by  the  Honorable  Gregory  R.  Giles,  Moore,  Giles  &  Matteson, \nTexarkana, Miller County, Arkansas.   \n \nRespondent No. 1 was represented by the Honorable Charles  H. McLemore, State of  Arkansas, \nArkansas Insurance Department, Public Employee Claims Division (PECD), Little Rock, Pulaski \nCounty, Arkansas. \n \nRespondent  No.  2,  is  represented  by  the  Honorable  David  L.  Pake,  State  of  Arkansas,  AWCC, \nDeath  and  Permanent  Total  Disability  Trust  Fund  (the  Fund),  Little  Rock,  Pulaski  County, \nArkansas, who waived appearance at the hearing. \n \nINTRODUCTION \nIn the prehearing order filed June 24, 2022, the parties agreed to the following \nstipulations, as modified, which they affirmed on the record: \n   \n1. The Arkansas Workers’ Compensation Commission (the Commission) has   \n jurisdiction over this claim. \n \n2. The employer/employee/carrier-TPA relationship existed at all relevant times,   \n including January 3, 2019, when the claimant sustained compensable injuries to his \n\nClayton McWilliams, AWCC No. G900188 \n \n2 \n \npelvis, both legs, and brain in a motor vehicle accident (MVA). \n \n3. The claimant’s average weekly wage (AWW) was $950.29, which is sufficient to \n      entitle him to weekly compensation rates of $634.00 for temporary total disability \n      (TTD), and $476.00 for permanent partial disability (PPD) benefits. \n \n4. Respondent No. 1 accepted the immediately aforementioned injuries and have paid \nall appropriate medical and TTD benefits to date. \n \n5. Respondent No. 1 has accepted and paid (or is in the process of paying) a 49% to \nthe body-as-a-whole (BAW) permanent anatomical impairment rating based on all \nthe claimant’s compensable injuries.   \n \n6. Respondent No. 1 controverts the payment of any additional PPD benefits for wage \nloss, and/or permanent and total disability (PTD). \n \n7. The parties specifically reserve any and all other issues for future determination   \nand/or hearing. \n \n(Commission Exhibit 1 at 2; Hearing Transcript at 5). Pursuant to the parties’ mutual agreement \n \nthe issues litigated at the hearing were: \n \n1. Whether, and if so to what extent, the claimant is entitled to wage loss disability, \nor is PTD as a result of his admittedly compensable injuries.   \n \n2.       Whether the claimant’s attorney is entitled to a controverted attorney’s fee on these \nfacts. \n \n3. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. at 5).  \nThe claimant contends he is permanently and totally disabled (PTD) or, alternatively, is \nentitled  to  substantial  wage  loss  disability  benefits.  The  claimant  further  contends  Respondent \nNo.  1 should be ordered to pay attorney’s fees as provided by law.  The  claimant  specifically \n\nClayton McWilliams, AWCC No. G900188 \n \n3 \n \nreserves any and all other issues for future determination and/or hearing. (Comms’n Ex. 1 at 2; T. \n5).   \nRespondent No. 1 contends the claimant has the burden of proving he is in fact PTD and \nincapable  of  performing  any  gainful  employment  whatsoever  or,  alternatively,  is  entitled  to \nadditional  PPD  benefits  for  wage  loss  disability  in  excess  of  his  49%  BAW  impairment  rating \nassigned for his traumatic brain injury. Furthermore, Respondent No. 1 contends that, pursuant to \nArk.  Code  Ann.  Section  11-9-411  (2023  Lexis  Replacement),  if  the  Commission  awards  the \nclaimant additional disability benefits they are entitled to a dollar-for-dollar credit/off-set for any \nand all disability benefits the claimant’s employer, or any and all third-party payor(s) has paid, is \npaying, or will pay in the future based on his compensable injury. Respondent No. 1 reserves any \nand all other issues for future determination and/or hearing. (Comms’n Ex. 1 at 3-4; T. 5). \nRespondent No. 2 defers to the outcome of the litigation on the subject issues and waived \nits  appearance  at  the  subject  hearing.  Respondent  No.  2  specifically  reserves  any  and  all  other \nissues for future litigation and/or determinations. (Comms’n Ex. 1 at 4; T. 5). \nThe  record  consists  of  the  hearing  transcript,  and  any  and  all  exhibits  contained  therein \nand/or attached thereto. \nSTATEMENT OF THE CASE \nThe claimant, Mr. Clayton McWilliams (the claimant), was 36 years old at the time of the \nhearing, and he turned 37 years old on June 10, 2023. On January 3, 2019, he was working as an \nArkansas State Trooper responding to a call when he was involved in an MVA in which he injured \nhis pelvis and legs and sustained a traumatic brain injury. Respondent No. 1 accepted these injuries \n\nClayton McWilliams, AWCC No. G900188 \n \n4 \n \nas compensable and provided, paid for, and continues to provide and pay for all related, reasonably \nnecessary medical treatment, including but not limited to the pelvic surgery Dr. Richard Garrison \nperformed;  physical  therapy  (PT),  and in-patient  treatment;  as  well  as  treatment  at  the  Timber \nRidge neurological rehabilitation facility in Benton, and treatment from Dr. Barry Baskin for his \ntraumatic brain injury. Dr. Barry Baskin saw the claimant for an independent medical evaluation \n(IME) and issued his IME report on October 7, 2020, and an addendum to this report on October \n15, 2020, which provide a thorough explanation of the claimant’s injuries, including but not limited \nto  his  traumatic  brain  injury.  The  claimant  also  spent  a  period  of  time  at  the  Timber  Ridge \nneurological rehabilitation facility in Benton, Arkansas. (Claimant’s Exhibit 1 at 1-90C; T. 13-33). \n        The claimant underwent two (2) separate Functional Capacity Evaluations (FCEs), the first \non August 28, 2020, and the second May 6, 2021, the results of which were “reliable”. The FCEs \nultimately  revealed  the  claimant  was  physically  capable  of  performing “Light” work consistent \nwith the United States Department of Labor’s standards’ (USDOL standards). (CX1 at 3-21, 59-\n57).   \n        In  addition,  Respondent  No.  1  provided  the  claimant  vocational  rehabilitation  and  job \nsearch assistance, initially via Ms. Heather Taylor, and later via Ms. Keondra Hampton, both of \nSystemedic.  Ms.  Taylor  conducted  her  initial  evaluation  of  the  claimant  on  May  24,  2021.  In  a \nvocational rehabilitation report dated November 23, 2021, Ms. Taylor opined: \n               After working with Mr. Williams, communicating with both volunteer places,   \n               and observing Mr. McWilliams doing his volunteer work, it is my professional \n               opinion that he is not able to return to competitive employment at this time... \n               If his independence increases over time, he may eventually be able to return   \n               to competitive employment, but in my opinion, it would only be in an unskilled \n               occupation.   \n \n\nClayton McWilliams, AWCC No. G900188 \n \n5 \n \n(CX1 at 85; 84-85). Thereafter, Ms. Taylor, and then Ms. Keondra Hampton also with Systemedic, \ncontinued to follow the claimant’s progress through March 21, 2021. In her final report of April \n25, 2022, Ms. Taylor stated: \n               In my professional opinion, I am still not ruling out the possibility that \n               Mr. McWilliams could eventually return to an unskilled/semi-skilled job. \n               his vocational/return-to-work outlook remains guarded and this is based on \n               my experience in working with Mr. McWilliams and also having worked with \n               other clients, in the past, with brain injuries.   \n                \n(CX1 at 94; 93-94).   \n        Ms.  Taylor  left  her  job  with  Systemedic  and  the  claimant’s vocational rehabilitation \nprogram was transitioned to Ms. Hampton, a vocational rehabilitation consultant wo worked with \nthe claimant in trying to help him find a wage-paying job. In her last report dated March 21, 2023, \nMs.  Hampton  listed  a  number  of  employers  who  had  unskilled/semi-skilled  job  openings.  She \nreported the claimant told her that although he had submitted applications for these jobs, “he did \nnot receive any responses from employers regarding his applications.” (CX1 at 120). Ms. Hampton \nalso noted in this report that she was helping the claimant complete job applications and that he \nwas, “eager for employment and will continue to work with me and his newly assigned job coach.” \n(CX1 at 12; 119-120). While the claimant was working a part-time, non-paying volunteer job, as \nof the hearing date he did not have a wage-paying job or any offers for a wage-paying job.   \n        Dr.  Garrison,  who  treated  the  claimant’s  pelvic  injury,  opined  the  claimant  reached \nmaximum  medical  improvement  (MMI)  on  July  24,  2020,  and  released  him  from  his  care  and \ntreatment. Dr. Baskin opined the claimant reached MMI for the effects of his traumatic brain injury \neffective March 29, 2021, and assigned him a 49% BAW permanent anatomical impairment rating, \n\nClayton McWilliams, AWCC No. G900188 \n \n6 \n \nwhich Respondent No. 1 has accepted and is in the process of paying. (CX1 at 29). \n        The claimant and his mother, Mrs. Kay Williams, were the only witnesses who testified at \nthe  hearing.  Both  the  claimant  and  his  mother  testified  concerning  his  physical  limitations  and \nrestrictions, and the adverse effects his traumatic brain injury has had on his cognitive abilities; his \njob search; his inability to find a wage-paying job; and his intention to continue to seek gainful \nemployment. (T. 33-125; 128-171). The claimant has applied, been approved for, and currently is \nreceiving approximately $365 per month in Social Security disability (SSD) benefits. (T. 55). The \nclaimant  is  medically  retired  for  the  Arkansas  State  Police,  and  he  also  receives  approximately \n$1,205.59/month from the Arkansas Public Employees State Retirement System (APERS).   \nDISCUSSION \nBurden of Proof \nWhen deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord as a whole, whether the party having the burden of proof on the issue has established it by \na  preponderance  of  the  evidence. Ark.  Code  Ann. §  11-9-704(c)(2)  (2023  Lexis  Replacement). \nThe claimant has the burden of proving by a preponderance of the evidence that he is entitled to \nbenefits. Stone  v.  Patel, 26  Ark.  App.  54,  759  S.W.2d  579  (Ark.  App.  1998).  In  determining \nwhether  the  claimant  has  met  his  burden  of  proof,  the  Commission  is  required  to  weigh  the \nevidence impartially without giving the benefit of the doubt to either party. Ark. Code Ann. § 11-\n9-704(c)(4); Gencorp Polymer Products v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. \n1991); Fowler v. McHenry, 22 Ark. App. 196, 737 S.W.2d 633 (Ark. App. 1987). The ALJ, the \nCommission, and the courts shall strictly construe the Act, which also requires them to read and \nconstrue the Act in its entirety, and to harmonize its provisions when necessary. Farmers’ Coop. \n\nClayton McWilliams, AWCC No. G900188 \n \n7 \n \nv. Biles, 77 Ark. App. 1, 69 S.W.2d 899 (Ark. App. 2002). \n   All claims for workers’ compensation benefits must be based on proof. Speculation  and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Correc. v. Glover, 35 \nArk. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardee’s, 51 Ark. App. 116, \n912 S.W.2d 14 (1995). The Commission is not required to believe either a claimant’s or any other \nwitness’s testimony but  may  accept  and  translate  into  findings  of  fact  those  portions  of  the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp.  1989);  and Farmers’  Coop., supra.  The  Commission  has  the  duty  to  weigh  the  medical \nevidence  just  as  it  does  any  other  evidence,  to  resolve  conflicting  medical  opinions;  and  its \nresolution of the medical evidence has the force and effect of a jury verdict. Williams v. Pro Staff \nTemps., 336 Ark. 510, 988 S.W.2d 1 (1999). \n                   The  Act  specifically  sets  forth  the  requirements  for  wage  loss  disability  findings.  For \nunscheduled  injuries, Ark.  Code  Ann. § 11-9-522 controls an injured worker’s entitlement to \npermanent   disability   benefits.   The   payment   of   compensation   for   permanent   disability \ncompensation is appropriate where the permanent effects of a work-related injury incapacitate the \nworker from earning the wages he was receiving at the time of the injury. Id. \n        The  Commission  is  charged  with  the  duty  of  determining  a  claimant’s  wage  loss \ndisability,  if  any,  based  upon  consideration  of  the  medical  evidence  and  other  matters  affecting \nwage loss. Lee v. Alcoa Extrusion, 89 Ark. App. 228, 201 S.W.2d 449 (Ark. App. 2005). When \n\nClayton McWilliams, AWCC No. G900188 \n \n8 \n \nmaking a determination of the degree of disability an injured worker has sustained as the result of \nan unscheduled injury, the Commission must consider evidence demonstrating the degree to which \nthe worker’s physical anatomical impairment adversely affects his earning capacity, as well as \nother factors such as the worker’s age, education, work experience, and other matters which may \nreasonably be expected to affect his future earning ability. Such other matters may include, but are \nnot  limited  to:  motivation,  post-injury  income,  credibility,  and  demeanor. Arkansas  Methodist \nHospital v. Adams, 43 Ark. App. 1, 858 S.W.2d 125 (Ark. App. 1993); Glass v. Edens, 233 Ark. \n786,  346  S.W.2d  685  (1961); City  of  Fayetteville  v.  Guess, 10  Ark.  App  313,  663  S.W.2d  946 \n(Ark. App. 1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (Ark. App. 1990). \n     The Commission may use its own superior knowledge of industrial demands, limitations, \nand  requirements  in  conjunction  with  the  relevant  evidence  to  determine  whether  a  claimant  is \nentitled to wage loss disability. Henson v. General Electric, 99 Ark. App. 257, 257 S.W.3d 908 \n(Ark. App. 2007). A claimant’s lack of interest in pursuing employment with his employer, and \nnegative attitude in looking for work are impediments to the Commission’s ability to assess wage \nloss disability. Logan County v. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (Ark. App. 2005).   \nA claimant is not entitled to wage loss disability benefits for a scheduled injury. Ark. Code Ann. \n§ 11-9-521; Moser v. Ark. Lime Co., 40 Ark. App. 113, 846 S.W.2d 188 (Ark. App. 1993). \n Specifically with respect to PTD benefits, Ark. Code Ann. § 11-9-519(e) states: \n \n (1) “Permanent total disability” means inability because \n  of compensable injury or occupational disease, to   \n  earn any meaningful wages in the same or other   \n  employment. \n\nClayton McWilliams, AWCC No. G900188 \n \n9 \n \n (2) The burden of proof shall be on the employee to   \n  prove inability to earn any meaningful wage in the   \n  same or other employment. \nPTD “shall be determined in accordance with the facts.” Ark.  Code  Ann. §  11-5-519(c). “In \nconsidering a claim for permanent disability, the commission and the courts shall not consider the \nodd-lot doctrine.” Ark.  Code  Ann. §  11-5-519(f);  and  see American  Eagle  Airlines  v.  Donald \nBerndt, 2012 Ark. App. App. 220 (Ark. App. 2012), citing Patterson v. Ark. Dep’t of Health, 70 \nArk. App. 182, 15 S.W.3d 701 (Ark. App. 2000).     \n     As previously cited, supra, Ark. Code Ann. § 11-9-102(4)(F)(ii)(a) requires further that: \n(a) Permanent   benefits   shall   be    awarded   only   upon   a \n determination  that  the  compensable  injury  was  the  major \n cause of the disability or impairment.     \n \n(b) If  any  compensable  injury  combines  with  a  preexisting \n disease or condition or the natural process of aging to cause \n or  prolong  disability  or  a  need  for  treatment,  permanent \n benefits shall be payable for the  resultant condition only if \n the compensable injury is the major cause of the permanent \n disability or need for treatment. \n \n(Emphasis added). The Act specifically defines the term “major cause” to mean more than fifty \npercent (50%) of the cause, which must be established by a preponderance of the evidence. Ark. \nCode. Ann. § 11-9-102(14)(A) and (B).   \n     Respondent No. 1 is to be commended for its hard and diligent work in providing vocational \nrehabilitation and job search assistance to the claimant; however, based on the applicable law as \napplied to the facts of this case I am compelled to find the claimant has met his burden of proof in \ndemonstrating  by  a  preponderance  of  the  credible  evidence  that  he  is  in  fact PTD  within  the \nmeaning of the Act as well as the aforementioned applicable precedents. \n\nClayton McWilliams, AWCC No. G900188 \n \n10 \n \n     The  claimant  was  involved  in  a  serious  MVA while responding to a dispatcher’s call on \nJanuary  3,  2019,  in  which  he  suffered  numerous  admittedly  and  well  documented  compensable \ninjuries, most notably a traumatic brain injury. The claimant also sustained significant injuries to \nhis pelvis and both legs. (CX1 at 1-120). The claimant, while only 36 years old at the time of the \nhearing,  is  now  37  years  old,  and  has  been  assessed  with  a  49%  BAW  permanent  anatomical \nimpairment rating, primarily as a result of his traumatic brain injury. Whether attributable to the \ncompensable incident and his serious permanent injuries in this case or some other reason, after \nthe January 3, 2019, MVA the claimant’s wife left him. Fortunately, he has met and married \nanother woman who provides both physical and emotional care and support. It is also evident from \nthe claimant’s mother’s testimony that both she and the claimant’s dad have provided him care, \nlove, financial, and both physical and emotional support.   \n       The medical records, as well as the claimant’s and his mother’s testimony, were credible \nconcerning  the  serious  nature  of  his  injuries,  and  the  physical  limitations  and  restrictions  these \nserious, debilitating injuries have had on his life. Throughout his testimony the claimant expressed \na desire to do everything possible to return to gainful employment. With the loving and significant \nhelp of his mom the claimant has written a book about his accident and his courageous fight to \novercome  his  significant  disabilities  which  is  available  for  sale  on  Amazon.  He  also  has  given \nmotivational speeches at various churches and other venues. His fellow Arkansas State Troopers \nand  others  have  shown  their  care  and  concern  by  providing  him  some  financial  assistance; \nhowever, charitable assistance, while certainly helpful, does not constitute gainful employment.         \n      Of course, of most concern is the claimant’s traumatic brain injury. Both the medical \n\nClayton McWilliams, AWCC No. G900188 \n \n11 \n \nrecords  and  the  vocational  rehabilitation  reports  of  Ms.  Taylor  and  Ms.  Hampton  essentially \ndemonstrate the claimant’s prospects of finding a wage-paying job in the competitive marketplace \nare  highly  speculative  at  this  time.  In  fact,  initially  Ms.  Taylor –  a  highly  knowledgeable, \nexperienced,  credible,  and  professional  rehabilitation  specialist  well-known  to  this  ALJ  and  the \nCommission – as well as Ms. Hampton’s thorough, well-written  reports,  paint  a  rather  bleak \npicture of the claimant’s prospects of returning to gainful employment as of the hearing date. (CX1 \nat 85; 94; 120).     \n      The claimant’s January 3, 2019, MVA, resulting serious injuries, and their consequences \nrepresent  the  very  definition  of  a  highly  significant,  tragic,  life-changing  event.  Still,  the \noverwhelming  preponderance  of  the  evidence  demonstrates  the  claimant  is  highly  motivated  to \nstay as active as he possibly can; that he is making and intends to continue to make every effort to \nfind and return to some kind of gainful employment if at all possible. In other words, this claimant \nis, in this ALJ’s humble opinion, a courageous young man who, despite his occasional bouts with \nsituational depression, is eager and highly motivated to attempt to beat the odds and find gainful \nemployment. And if he is unable to do so, he will continue to  find ways to use his tragedy and \nupbeat, positive attitude to try to help others in similar situations deal with their injuries, struggles, \nand depression, and to live the very best life they can live while, “passing it forward” to others. \n      This ALJ and the Commission are well aware that recovery from traumatic brain injuries \nis highly unpredictable: i.e., the claimant’s condition “might” improve and, then again, it “might” \nget worse. As of the hearing date the preponderance of the credible evidence of record conclusively \ndemonstrates that, at this time at least, it would constitute sheer speculation and conjecture to find \n\nClayton McWilliams, AWCC No. G900188 \n \n12 \n \nthe traumatic brain injury will improve to the extent that the claimant will be able to return to work \nand be gainfully employed in a competitive marketplace. Of course, speculation and conjecture, \neven if plausible, do not constitute proof. I pray the claimant’s traumatic brain injury will improve \nwith time; however, as of the hearing date as well as the preponderance of the credible evidence \nof record  and what this ALJ observed at the hearing, the  claimant is unable to return to gainful \nemployment at this time.        \n     Therefore, for all the aforementioned reasons, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the prehearing order filed June 24, 2022,   \nwhich the parties affirmed on the record at the hearing, hereby are \naccepted as facts.   \n \n2. The claimant has met his burden of proof in demonstrating he is PTD \nwithin the meaning of the Act and applicable case law. \n \n3. The claimant has met his burden of proof in demonstrating his \ncompensable injuries are the “major cause” of his permanent disability.  \n \n4. Pursuant  to Ark.  Code  Ann.  Section  11-9-411,  Respondent  No.  1  is \nentitled  to  take  a  dollar-for-dollar  credit/off-set  in  the  amount  of  any \ndisability benefits any and all third-party payor(s) have paid, are paying, \nor will pay to the claimant in the future. \n \n5. The claimant’s attorney  is  entitled  to  a  fee  on  these  facts  based  on  the \nadditional  51%  in  wage  loss  disability  benefits  the  Commission  has \nawarded to the claimant, and which Respondent No. 1 has controverted. \n \n                     AWARD \n \n     The respondents are hereby directed to pay benefits in accordance with the “Findings of Fact \nand Conclusions of Law” set forth above. All accrued sums shall be paid in lump sum without \ndiscount, and this award shall earn interest at the legal rate until paid pursuant to Ark. Code Ann. \n\nClayton McWilliams, AWCC No. G900188 \n \n13 \n \nSection 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 \n(Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d 126 (Ark. App. \n1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004).   \n      If they have not already done so, Respondent No. 1 shall pay the court reporter’s invoice \nwithin twenty (20) days of their receipt of this opinion and order.   \nIT IS SO ORDERED. \n \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":24522,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G900188 CLAYTON MCWILLIAMS, EMPLOYEE CLAIMANT ARKANSAS STATE POLICE, EMPLOYER RESPONDENT NO. 1 STATE OF ARKANSAS/PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT NO. 1 STATE OF ARKANSAS DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDE...","outcome":"affirmed","outcomeKeywords":["affirmed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:04:59.958Z"},{"id":"alj-H103974-2023-07-03","awccNumber":"H103974","decisionDate":"2023-07-03","decisionYear":2023,"opinionType":"alj","claimantName":"Kenneth Cobbs","employerName":"J.B. Hunt Transport, Inc","title":"COBBS VS. J.B. HUNT TRANSPORT, INC. AWCC# H103974 JULY 3, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//COBBS_KENNETH_H103974_20230703.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COBBS_KENNETH_H103974_20230703.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: H103974 \nKENNETH COBBS, SR., (DEC’D)  \nEMPLOYEE                                                                                                              CLAIMANT \n \nJ.B. HUNT TRANSPORT, INC.,  \nEMPLOYER                                                                                                         RESPONDENT \n                                                                                                         \nINDEMNITY INSURANCE CO. OF NA,  \nINSURANCE CARRIER                                                                                    RESPONDENT \n \nESIS, INC., \nTHIRD PARTY ADMINSTRATOR (TPA)                                                     RESPONDENT \n \n \n               OPINION FILED JULY 3, 2023      \n        \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Little Rock, \nPulaski County, Arkansas. \n \nClaimant  represented  by  the  Honorable  Mark  Allen  Peoples,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nRespondents  represented  by  the  Honorable  Joseph  H.  Purvis,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nStatement of the Case \nOn  April  4,  2023,  the  above-captioned  claim  came  on  for  a  hearing in  Little  Rock, \nArkansas.  A pre-hearing telephone conference was conducted on February 22, 2023, from which \na  Pre-hearing  Order  was  filed  on  that  same  day.    A  copy  of  the  said  order  and  the parties’ \nresponsive filings have been marked as Commission’s Exhibit No. 1 and made a part of the record \nwithout objection. \nStipulations \nDuring the pre-hearing telephone conference, and/or during the hearing the parties agreed \nto the following stipulations: \n\nCobbs – H103974 \n \n2 \n \n1.  The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n2. The  employer-insurance  carrier  relationship  existed  among  the  parties  at  all \nrelevant  times,  including  on  or  about  December  5,  2020,  when  the  Claimant \ncontracted  COVID-19,  in  the  course  and  scope  of  his  employment  with  the \nrespondent-employer. \n3. The Claimant died on December 26, 2020, due to COVID-19, at which time he was \nmarried to Mrs. Alma Cobbs.  At the time of the Claimant’s death, the couple had \ncustody  of  Mr.  Cobb’s  two  biological  minor  grandchildren,  namely,  However, \nsince this time/currently, the minor children are in the custody  of their biological \npaternal grandmother, Ms. Leadry B. Harris.    \n4. The Claimant’s average weekly on December 5, 2020, was $1,119.16, which \nentitles him to weekly compensation rates of $711.00 and $533.00. \n5. At that time of Claimant’s exposure to COVID-19 and his subsequent death, \nGovernor Asa Hutchinson’s Executive Order 20-35 was in force and effect. \n6. All  issues  not  litigated  herein  are  reserved  under  the  Arkansas  Workers’ \nCompensation Act. \n7. The Respondents agree that the Claimant’s widow is entitled to payment for \ntemporary total disability compensation from December 6, 2020, through \nDecember 26, 2020. \n8. That the Claimant’s widow is entitled to an 18% penalty on the temporary total \ndisability compensation and funeral expenses, and that the Claimant’s attorney \nis likewise entitled to an 18% penalty on the same for his attorney’s fee in this \n\nCobbs – H103974 \n \n3 \n \nregard.    At  the  start  of  the  hearing,  Respondents’  attorney  clarified  that  a \ncontroverted attorney’s fee is not due on the funeral expenses under the statute.       \n9. That the Respondents have controverted this claim in its entirety.  At the time of \nthe hearing, the parties agreed to further stipulate that for attorney’s fees purposes, \nthe Respondents have controverted this claim in its entirety (T. p 11)    \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether the Claimant’s biological grandchildren are entitled to dependency \nbenefits. \n \n2. Whether the Respondents are liable for out-of-pocket-expenses medicals.\n1\n \n \n3. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \n \nContentions \n The respective contentions of the parties are as follows: \nClaimant:  The Claimant contends: \n(a) That the Claimant was exposed to COVID-19 while in the course and scope of his \nemployment on or about December 5, 2020, and was unable to work thereafter;  \n  \n(b) That he is entitled to temporary total disability (TTD) benefits at the weekly rate of \n$711.00 from December 5, 2020, through December 26, 2020;  \n  \n(c) That Respondents controverted compensability of this claim but have more recently \nadmitted compensability and pledged to pay TTD owed, but have failed to do so, \ndespite  repeated  requests.    Thus,  Claimant  is  entitled  a  penalty  for  willful  late \npayment;  \n  \n(d) That Claimant died as a result of his exposure to COVID-19 while on the job;  \n  \n \n1\n Per an email to the Commission, the parties are trying to resolve the issue out-of-pocket expenses. As a \nresult, this issue will not be addressed in this opinion.  Instead, it has been reserved.     \n\nCobbs – H103974 \n \n4 \n \n(e) That  Claimant’s  widow, Alma Cobbs,  is  entitled to  weekly  payments  of  35% of \nClaimant’s AWW from the time of his death until her death (or until she re-marries);  \n  \n(f) That  Claimant’s  natural  granddaughter  was  wholly  dependent  on  Claimant  for \nsupport at the time of his death and is thus entitled to weekly compensation of 15% \nof Claimant’s AWW from the time of Claimant’s death until her 18\nth\n birthday (25\nth\n \nbirthday if she remains a full-time student);  \n  \n(g) That Claimant’s natural grandson was wholly dependent on Claimant for support at \nthe  time  of  his  death  and  is  thus  entitled  to  weekly  compensation  of  15%  of \nClaimant’s AWW from the time of Claimant’s death until his  18\nth\n  birthday  (25\nth\n \nbirthday if he remains a full-time student);  \n  \n(h) That  Claimant’s  widow,  Alma  Cobbs,  is  entitled  to  reimbursement  for  funeral \nexpenses in the amount of $7,242.00 or the statutory maximum;  \n  \n(i) That Respondents controverted compensability of this claim but have more recently \nadmitted compensability and pledged to pay funeral expenses owed, but have failed \nto do so, despite repeated requests.  Thus, Claimant is entitled a penalty for willful \nlate payment;  \n  \n(j) That Alma Cobbs is entitled to reimbursement for out-of-pocket medical expenses \nincurred as a result of Claimant’s exposure to COVID-19 while on the job; and  \n  \n(k) That  the  benefits  set  forth  above  have  been  controverted  and  thus,  undersigned \ncounsel is entitled to maximum statutory attorney’s fees.    \n \nRespondents:  The Respondents contend:  \nA.  That the foster children/grandchildren were not wholly dependent upon the \nClaimant at the time of his death; alternatively, at the very least they were only \npartially dependent and should qualify for no more than a small percentage of \ndeath benefits at best. \nB.  According to testimony of the Department of Human Services, Division of \nChildren  and  Family  Services  Regulations,  as  of  January  15,  2021,  these \nchildren are no longer part of the foster children program and any monies due \nthese foster children would no longer need to be placed in a trust. \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \n\nCobbs – H103974 \n \n5 \n \nhear  the  testimony  of  the  Claimant  and  observe  her  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.   The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n \n   claim. \n \n2.    I hereby accept the above-mentioned proposed stipulations as fact. \n \n          3.       The evidence before me preponderates that the Claimant’s minor grandchildren    \n        were partially (one-third) dependent on the Claimant for support at the time of his  \n                    death.   \n         4.        The Claimant’s attorney is entitled to a controverted attorney’s fee on the indemnity   \n                    benefits awarded herein.  \n \n          5.       All issues not litigated are reserved under the Arkansas Workers’ Compensation  \n                    Act.      \nSummary of Evidence \nThe  record  consists  of  the  April  4,  2023  hearing  transcript,  comprising  the  following \nexhibits: Specifically, Commission’s Exhibit No. 1 includes the Commission’s Prehearing Order \nfiled on February 22, 2023 and the parties’ responsive filings; Claimant’s Exhibit 1 is a Medical \nExhibit  consisting  of  seven  numbered  pages;  Claimant’s  Exhibit  2  is  an Amended  Order \nAppointing Guardianship, consisting of three pages, it has been marked accordingly; Claimant’s \nExhibit  3  comprises  three  pages,  which  is  an  Amended  Order  Appointing  Guardianship;  a  one-\npage Letter of Guardianship of the Estate for the grandson has been marked as Claimant’s Exhibit \n4; a second one-page Letter of Guardianship of the Estate for the granddaughter has been marked \nas  Claimant’s  Exhibit  5; Respondents’  Exhibit  1  is a  Non-Medical  Exhibit,  which  is  the  Oral \n\nCobbs – H103974 \n \n6 \n \nDeposition of Tracy Holloway, which was taken on March 24, 2023.  It has been retained in the \nCommission’s files.  \nDuring  the  hearing,  the  only  witness  to  testify  was  the  Claimant’s  widow,  Mrs.  Alma \nCobbs. \n                                                  Testimony \nMrs. Alma Cobbs \n \nMrs. Alma Cobbs testified during the hearing.  She confirmed that she was married to the \ndeceased Claimant, Mr. Kenneth Cobbs, Sr.  Mrs. Cobbs confirmed that her husband passed away \na day after Christmas, on December 26, 2020.  She verified that when Mr. Cobbs passed, they had \nhis two grandchildren living in their home with them.  Mrs. Cobbs testified that the children had \nbeen in their home since August.  She basically testified that they obtained custody of the children \nthrough the State foster care program.  According to Mrs. Cobbs they had to go through training \nto become foster parents.  Upon taking custody of the grandchildren, she testified that she had to \nquit her evening job.  \nInstead, Mrs. Cobbs maintained that she had to quit her job in order for her to be able to \nattend to the children.  She got them up in the mornings and ready for school.  In addition to putting \na roof over the heads of the children, Mrs. Cobb testified that they supplied food, clothing, and a \nsafe shelter for the children.  \nMrs. Cobbs testified that the children are Mr. Cobbs’ grandchildren.  They are the children \nhis  son.    At  the  time  that  they  took  custody  of  the  children,  the  father  of  the  children  was \nincarcerated, and the mother was in drug rehab.  She testified that she does not know how much \nof the money that Mr. Cobbs made went to the support of the children.  Mrs. Cobbs confirmed that \nher husband made approximately $55,000.00 year. \n\nCobbs – H103974 \n \n7 \n \nOn cross-examination, Mrs. Cobbs was shown a document that listed only her husband as \nbeing the foster parent.  She denied that she was aware that Mr. Cobbs was the only foster parent.  \nHowever,  they  both  went  through  the  foster  care  training.    Mrs.  Cobbs  did  not  supply  a  clear \nexplanation of why they chose to be foster parents rather than adopt the children.  She testified that \nthey would have adopted the children had her husband not gotten sick.   Mrs. Cobbs denied that \nreceiving money from the State to help with the support of the children had anything to do with \ntheir decision.  However, Mrs. Cobb finally agreed that receiving money from the State played a \nrole  in  the  decision  as  to  whether  they  legally  adopted  the  children  as  opposed  to  being  foster \nparents.  \nMrs. Cobbs denied having any knowledge of how much they were going to receive as foster \nparents from the State in support of the children.   She also denied she knew how much money the \nchildren would receive from her husband’s death or under  the  State  foster  care  program.    Mrs. \nCobbs explained that she did not care about the money, because it is about the “kids.” She testified \nthat she quit her job so that she could make sure the children went to bed, were fed, had proper \nhygiene before going to  bed, and she had to get them up and ready for school every day.  Mrs. \nCobbs confirmed that the children were never in daycare.      \n     On redirect-examination, Mrs. Cobbs agreed that it was not about the money, it was about \nproviding a home for the children because they needed someone to take care of them.  Mrs. Cobbs \nwent on to explain that she did not want the children on the streets.   \n Upon being questioned by the Commission, she admitted that they were to receive $400.00 \nper  month  for  each  child  from  the  State.    She  confirmed  that  they  received a  back  payment  of \n$1,400.00 from the State.  Mrs. Cobbs confirmed that the mother had visitation with the children, \nonce a month. \n\nCobbs – H103974 \n \n8 \n \n On recross-examination, Mrs. Cobbs essentially testified that she did not continue with the \ncare of the children after her husband’s death because she needed help with them, and they were \nher husband’s grandchildren.       \nThe Oral Deposition of Tracy Holloway \n The Respondents took the Oral Deposition of  Tracy Holloway on March  23, 2023.  She \nlives  in  Cabot,  Arkansas.    Ms.  Holloway  is  employed  by  the  Arkansas  Department  of  Human \nServices.    Ms.  Holloway  is  the  program  administrator  for  foster  care,  adoption,  and  kinship \nconnect.  She manages the statewide foster care, adoption, and kinship programs.           \n Ms. Holloway confirmed that Mr. Cobbs signed an application to become foster parent for \nhis two grandchildren.  She testified that a provisional foster parent is what Mr. Cobbs was at the \ntime  of  placement.    There  was  no  money  for  support  until  you  are  an  approved  home.    She \nexplained the training requirements and process for becoming an approved home.      \n She  confirmed  that  Mr.  and  Mrs.  Cobbs  attended  the  training.    They  turned  in  licensing \npaperwork and on December 4, 2020, their home was officially opened  as a relative  foster care \nhome.  Mrs. Holloway confirmed that at that point, Mr. Cobbs became entitled to receive money \nfrom the State to help with the support of these children. \n Under  further  questioning,  Ms.  Holloway  confirmed  that  Exhibit  4  shows  the  financial \nsupport provided to foster parents.  She agreed that she was referencing Paragraph 1 of Title IV E \nfoster care payment, which states that the payments cover the cost of food, clothing, shelter, daily \nsupervision, and school supplies.  Ms. Holloway agreed that this money was going to Mr. Cobbs \nfor support of the children.  She confirmed that the money was for the purpose of making sure the \nentire burden to support these children, would not rest solely on the shoulders of the foster parent/ \n\nCobbs – H103974 \n \n9 \n \nShe confirmed that the children are no longer in the legal custody of the Department of Human \nServices.           \n Ms.  Holloway stated that they provided some financial support to foster parents, but the \nState does recognize that the money does fully support the children.  As a result, the foster parents \ndo bear some of the responsibility.  She testified that financial support is based on age.  At the time \nthat Mr. Cobbs assumed foster care of the children, he was eligible to receive payments $410.00 \nand  $440.00  a  month  for  the  two  children.  She  confirmed  that  Mr.  Cobbs  was  approved  on \nNovember 16, 2020, and a check was generated on December 4, 2020, for $850.00. \n She was not certain if the children were in the care of the biological grandmother but said \nthat they were with another relative.       \n On  cross  examination,  Ms.  Holloway  testified  that  Mr.  and  Mrs.  Cobbs  received \napproximately $1,500.00 from the State for the five months they had the children.  She confirmed \nthat the children are no longer in foster care.  She confirmed that the trust account that had been \nset  up  by  the  State  would  no  longer  apply  to  the  children  should  they  be  awarded  workers’ \ncompensation benefits.   \n            Discussion \nA.  Dependency Benefits            \n  \n Here, the decedent had taken custody of his grandchildren in August of 2020.  He became \na  foster  parent  to  them  in  November.    On  December  26,  2020,  Mr.  Cobbs  passed  away  due  to \nCOVID-19.  The parties stipulated that  the Claimant contracted COVID-19, while working and \nthat this was a work-related death.  At the time of his death, Mr. Cobbs and his wife had taken \ncustody  of  his  two  minor  grandchildren,  through  the  State’s  foster  care  program.    He  received \nmonthly benefits for the children.       \n\nCobbs – H103974 \n \n10 \n \nThe crucial issue for determination is whether the Claimant’s grandchildren were “wholly” \nor “partially  “dependent  on  him  at  the  time  of  his  death.  I  am  persuaded  that  the  Claimant’s \ngrandchildren  were  partially  dependent  on  him  for  support  at  the  time  of  his  death.    Ark.  Code \nAnn. §11-9-527 (i) provides:  \nPARTIAL DEPENDENCY.  (1) If the employee leaves dependents who are only \npartially dependent upon his or her earnings for support at the time of injury, the \ncompensation payable for partial dependency shall be in the proportion that the \npartial dependency bears to total dependency. \n The preponderance of the evidence shows that Mr. Cobbs was a foster parent for his two \nbiological minor grandchildren.  The preponderance of the evidence shows that the minor children \nwere partially dependent on their grandfather for support and care.  This conclusion is established \nby the testimony of the step-grandmother, Mrs. Alma Cobbs and Ms. Tracy Holloway, the program \nadministrator for the foster care, adoption, and kinship program.    \nAlthough  the  grandchildren  of  the  decedent  herein  may  have  received  support  from  the \nState, their grandfather provided their daily support, both financially and as a father-figure, came \nfrom  Mr.  Cobbs,  by  his  course  of  conduct  he  had  formed  with  his  minor  grandchildren.    The \nevidence shows that decedent’s intent demonstrates that he assumed the duties and responsibilities \nof becoming the foster parent to his grandchildren, not only in providing partial financial support \nto  them,  but  also in  his  caring  for  their  general  welfare.    Such  actions  created  a  reasonable \nexpectation  of  future  partial  support  and  care  for  his  minor  grandchildren,  considering  he  was \nproviding shelter and other support for the children at the time of his death.  Mrs. Cobbs testified \nthat  she  does  not  know  how  much  of  the  Claimant’s  income  went  to  support  the  children.  \nHowever, at the time of the Claimant’s death, he was entitled to receive a  total  of  $850.00  per \nmonth  from  the  State  for  the  two  children.    The  children  did  not  need  daycare  or  any  special \nservices.   These funds provided for more than 50% of the money needed to care for the children.   \n\nCobbs – H103974 \n \n11 \n \nBased on all of the foregoing, the evidence before me preponderates that the Claimant’s \nminor  grandchildren  were  partially  (one-third)  dependent  on  him  for  support  at  the  time  of  his \ndeath.    Therefore,  I  find  that  the Claimant’s minor  grandchildren  are  each  eligible  beneficiaries \nand should each receive a partial share each in the dependency benefits.   \n B.  Controverted Attorney’s Fee \nIt is undisputed that the Respondents have controverted this claim for additional benefits as \nevidenced by their stipulation to conversion.  Therefore, pursuant to Ark. Code Ann. §11-9-715 \n(Repl. 2012), the Claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity \nbenefits awarded herein.  \nAWARD \nThe Respondents are directed to pay benefits in  accordance with the  findings of fact set \nforth  herein  this  Opinion.    All  issues  not  addressed  herein  are  expressly  reserved  under  the \nArkansas Workers’ Compensation Act. \nAll accrued sums shall be paid in lump sum without discount, and this  award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809 (Repl. 2012).   See Couch \nv. First State Bank of Newport, 49 Ark. App. 102, 898 S.W. 2d 57 (1995).  Pursuant to Ark. Code \nAnn.  §11-9-715  (Repl.  2012),  the  Claimant's  attorney  is  entitled  to  a  25%  attorney's  fee  on  the \nindemnity benefits awarded herein.  This fee is to be paid one-half by the carrier and one-half by \nthe Claimant.    \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          HON. CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE \n\nCobbs – H103974 \n \n12","textLength":21307,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H103974 KENNETH COBBS, SR., (DEC’D) EMPLOYEE CLAIMANT J.B. HUNT TRANSPORT, INC., EMPLOYER RESPONDENT INDEMNITY INSURANCE CO. OF NA, INSURANCE CARRIER RESPONDENT ESIS, INC., THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT OPINION FILED JULY 3, 2023 Hearing held b...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:04:51.643Z"},{"id":"alj-H202951-2023-07-03","awccNumber":"H202951","decisionDate":"2023-07-03","decisionYear":2023,"opinionType":"alj","claimantName":"Stacy Shelby","employerName":"Butterball, LLC","title":"SHELBY VS. BUTTERBALL, LLC AWCC# H202951 JULY 3, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SHELBY_STACY_H202951_20230703.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHELBY_STACY_H202951_20230703.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H202951 \n \n \nSTACY SHELBY, Employee                                                                           CLAIMANT                         \n \nBUTTERBALL, LLC, Employer                                                                RESPONDENT                         \n \nACE AMERICAN INSURANCE CO., Carrier/TPA                                   RESPONDENT \n \n \n \n OPINION/ORDER FILED JULY 3, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by ZACH RYBURN,  Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This  case  comes  on  for  review  following  a  hearing  on  respondent’s  Motion  to \nDismiss. \n On  April  15,  2022,  claimant  filed  form  AR-C  requesting  various  compensation \nbenefits for an injury date of September 2, 2021.  On July 19, 2022, the Full Commission \ngranted an order allowing claimant’s attorney to withdraw as counsel.  Since that time the \nclaimant has taken no action to prosecute her claim.  On April 17, 2023, respondent filed \na motion to dismiss this claim based upon claimant’s failure to prosecute.  A hearing was \nscheduled on the respondent’s Motion to Dismiss for June 26, 2023.  Notice of the hearing \nwas sent to claimant by certified mail and delivered on April 22, 2023.  Claimant did not \nappear at the hearing and has not responded to the claimant’s motion. \n\nShelby – H202951 \n \n2 \n \n After  my  review  of  the  respondent’s  motion,  the  claimant’s  failure  to  respond \nthereto,  and all  other  matters  properly  before  the  Commission,  I  find  that  respondent’s \nMotion  to  Dismiss  should  be  and  hereby  is  granted.    This  dismissal  is  pursuant  to \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2046,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202951 STACY SHELBY, Employee CLAIMANT BUTTERBALL, LLC, Employer RESPONDENT ACE AMERICAN INSURANCE CO., Carrier/TPA RESPONDENT OPINION/ORDER FILED JULY 3, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arka...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:04:53.700Z"},{"id":"full_commission-G802123-2023-06-29","awccNumber":"G802123","decisionDate":"2023-06-29","decisionYear":2023,"opinionType":"full_commission","claimantName":"Francine Murphy","employerName":"Arkansas Department Of Corrections","title":"MURPHY VS. ARKANSAS DEPARTMENT OF CORRECTIONS AWCC# G802123 JUNE 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Murphy_Francine_G802123_20230629.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Murphy_Francine_G802123_20230629.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G802123 \n \nFRANCINE MURPHY, \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF CORRECTIONS,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVSION, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2 \n  \n      \nOPINION FILED JUNE 29, 2023  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE CHARLES H. \nMcLEMORE, JR., Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID L. PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \n ORDER \n Respondent No. 1 moves the Full Commission to reconsider our \nopinion filed March 17, 2023.  The claimant does not reply.  The Full \nCommission grants Respondent No. 1’s motion. \n The parties stipulated that the claimant sustained compensable \ninjuries to her head and left eye on March 17, 2018.  The claimant testified \nthat the respondents eventually “accepted 100% loss” of the claimant’s left \neye.  Respondent No. 1 implicitly states that it paid benefits in accordance \nwith Ark. Code Ann. §11-9-521(c)(1)(Repl. 2012):  “Compensation for the \n\nMURPHY - G802123  2\n  \n \n \npermanent loss of eighty percent (80%) or more of the vision of an eye shall \nbe the same as for the loss of an eye.”   \n Respondent No. 1 states that the Full Commission erred in awarding \na 32% permanent anatomical impairment rating assigned by Dr. Baskin.  \nWe agree.  The respondents shall not be liable for the 32% rating assessed \nby Dr. Baskin.  Respondent No. 1 shall remain liable for the award of \n$1,500.00 for facial disfigurement in accordance with Ark. Code Ann. §11-9-\n524(Repl. 2012).  Facial disfigurement is separate and distinct from \npermanent anatomical impairment.  Little Rock Ambulance Authority v. \nBinkley, 2022 Ark. App. 229, 646 S.W.3d 193.   \n   The Full Commission therefore grants Respondent No. 1’s motion \nfor reconsideration.  Because the claimant did not prove she was \npermanently totally disabled, the respondents’ liability for permanent \nanatomical impairment shall be limited to the schedule of Ark. Code Ann. \n§11-9-521(c)(1)(Repl. 2012). \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2603,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G802123 FRANCINE MURPHY, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTIONS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVSION, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.349Z"},{"id":"full_commission-G708197-2023-06-29","awccNumber":"G708197","decisionDate":"2023-06-29","decisionYear":2023,"opinionType":"full_commission","claimantName":"Jose Perez","employerName":"Southern Tire Mart, LLC","title":"PEREZ VS. SOUTHERN TIRE MART, LLC AWCC# G708197 JUNE 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Perez_Jose_G708197_20230629.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Perez_Jose_G708197_20230629.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  G708197\n \n \nJOSE PEREZ, EMPLOYEE  CLAIMANT \n \nSOUTHERN TIRE MART, LLC, EMPLOYER RESPONDENT \n \nLIBERTY INSURANCE CORPORATION,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED JUNE 29, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed February 7, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim.  \n \n2.  That an employer/employee relationship existed on October 13, \n2017, the date that the claimant suffered a compensable injury.  \n \n3.  That the claimant has failed to prove, by a preponderance of the \ncredible evidence, that he is entitled to temporary total disability. \n\n \nPEREZ - G708197  2\n  \n \n \n4.  If not already paid, the respondents are ordered to pay for the \ncost of the transcript forthwith.  \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's February 7, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2264,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G708197 JOSE PEREZ, EMPLOYEE CLAIMANT SOUTHERN TIRE MART, LLC, EMPLOYER RESPONDENT LIBERTY INSURANCE CORPORATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 29, 2023 Upon review before the FULL COMMISSION in Little Ro...","outcome":"affirmed","outcomeKeywords":["affirmed:3","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.352Z"},{"id":"alj-H204702-2023-06-29","awccNumber":"H204702","decisionDate":"2023-06-29","decisionYear":2023,"opinionType":"alj","claimantName":"Cheria Lassiter","employerName":"Arkansas Support Network Inc","title":"LASSITER VS. ARKANSAS SUPPORT NETWORK INC. AWCC# H204702 JUNE 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//LASSITER_CHERIA_H204702_20230629.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LASSITER_CHERIA_H204702_20230629.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H204702 \n \nCHERI A. LASSITER, EMPLOYEE   CLAIMANT \n \nARKANSAS SUPPORT NETWORK INC., EMPLOYER RESPONDENT \n \nSUMMIT CONSULTING LLC, INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED JUNE 29, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by JASON RYBURN, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n \n On  June  30,  2022,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on  June  18, \n2022.   Claimant was not represented by an attorney when the AR-C was filed, and is still pro se.   \nOn April 25, 2023, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed her Form AR-C with the Commission, but she had not made a request \nfor a hearing in that time. A hearing on respondent’s Motion to Dismiss was scheduled for June 27, \n2023.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice  was  returned  unclaimed  on  May  22, 2023.  Claimant  did  not \nrespond to Respondent’s motion and did not appear in person at the hearing on June 27, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the Respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the Respondent’s motion, as well as all other matters \n\nLassiter-H20472 \n \n2 \n \nproperly before the Commission, I find that Respondent’s Motion to Dismiss this claim should be \nand hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                           \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2029,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204702 CHERI A. LASSITER, EMPLOYEE CLAIMANT ARKANSAS SUPPORT NETWORK INC., EMPLOYER RESPONDENT SUMMIT CONSULTING LLC, INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED JUNE 29, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Seba...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:06:54.890Z"},{"id":"alj-G907375-2023-06-29","awccNumber":"G907375","decisionDate":"2023-06-29","decisionYear":2023,"opinionType":"alj","claimantName":"Tracy Scroggins","employerName":"Wayne Holden & Company","title":"SCROGGINS VS. WAYNE HOLDEN & COMPANY AWCC# G907375 JUNE 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SCROGGINS_TRACY_G907375_20230629.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCROGGINS_TRACY_G907375_20230629.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.: G807375 \n \nTRACY SCROGGINS, EMPLOYEE                                                                     CLAIMANT \n \nWAYNE HOLDEN & COMPANY, EMPLOYER                    RESPONDENT NO.   1 \n \nACCIDENT FUND INSURANCE, \nTHIRD PARTY ADMINISTRATOR \n(TPA)                                                                                                        RESPONDENT NO.   1 \n                              \nDEATH & PERMANENT TOTAL DISABILITY \nTRUST FUND                                                                                         RESPONDENT NO.   2 \n \n     OPINION FILED JUNE 29, 2023 \nThis matter comes before Administrative Law Judge Chandra L. Black on the record.     \nClaimant represented by the Honorable Laura Beth York, Attorney at Law, Little Rock, Arkansas. \nRespondents No. 1 represented by the Honorable Ms. Karen H. McKinney, Attorney at Law, Little \nRock, Arkansas. \n \nRespondent No. 2 represented by the Honorable Christy L. King, Attorney at Law, Little Rock, \nArkansas.  \n \n                           Statement of the Case    \n On June 19, 2023, the above-referenced referenced claim was submitted on the record, \nby agreement of the parties, as an alternative to an in-person hearing.  A prehearing telephone was \nheld in this claim on January 18, 2023.  On that same date, a Prehearing Order was entered.  The \ncrucial issue presented for adjudication involves the Claimant’s entitlement to additional medical \ntreatment for his admittedly compensable accidental injury of October 26, 2018.  Specifically, the  \n\nScroggins -G807375 \n \n2 \n \nparties agreed to have the issues of controversy involving the Claimant’s entitlement to additional \nmedical  services  under  the  care  of  Dr.  Brent  Lawrence  and  at  Bowen  Hefley  considered  on  the \nrecord.     \nStipulations: \nBy  agreement  of  the  parties,  the  following  stipulations  applicable  to  this  claim  are  as \nfollows: \n1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n \n2.   The Claimant sustained a compensable injury to multiple parts of his body on  \nOctober 26, 2018, including but not limited to his left knee, left hip, and lower back. \n3.   The Claimant earned an average weekly wage at the time of his injury sufficient to \n      entitle him to the maximum weekly compensation rates of $673.00 for temporary  \n      total disability and $505.00 for permanent partial disability. \n \n4. The Claimant received and signed the AR-N on November 8, 2018.  \n \n5. Respondents  No.  1  initially  accepted  only  the  left  hip  and  left  knee  injuries  as \ncompensable. \n \n6. As of December 27, 2021, Respondents No. 1 acknowledged and accepted the lower \nback injury as compensable. \n \n7. The Claimant's authorized treating physician for his hip and knee injuries was Dr. \nHenry Wallace. \n \n8. The  Claimant  first  treated  with  Dr.  Brent  Lawrence  on  August  5,  2019,  and  Dr. \nLawrence recommended \"for now, we will watch his hip\" and either \"possible ligament \nand   posterolateral   corner   repair   or   replacement   surgery\"   for   the   knee   and   he \nrecommended a referral to \"Dr. Joel Smith to discuss this further.\" \n \n9. The Claimant petitioned for and received a change of physician from Dr. Wallace to \nDr. Joel Smith on October 22, 2019. \n \n\nScroggins -G807375 \n \n3 \n \n10.   Dr. Smith recommended a left total knee replacement. \n \n11.   Respondents No. 1 requested and obtained an IME from Dr. Lowry Barnes. \n \n12.  After Dr. Barnes agreed that a total knee replacement was reasonable and necessary, \n Respondent-employer approved this treatment.   \n \n13.  Dr. Smith performed a left total knee replacement on February 20, 2020. \n \n14.  Dr. Smith opined the Claimant reached maximum medical improvement from his left   \n total knee replacement on October 13, 2020. \n \n15.  Dr. Smith assessed Claimant with a 37% impairment to the left lower extremity. \n \n16.  The Claimant sought treatment from Bowen Hefley on April 16, 2020, without   \n obtaining authorization for this treatment from the respondent-carrier. \n \n17. The Claimant returned to Dr. Brent Lawrence for additional treatment without a referral \nfrom Dr. Smith or seeking authorization for this treatment from respondent-carrier. \n \n18.  Dr. Brent Lawrence performed left hip replacement surgery on May 10, 2021. \n \n19.  Dr. Brent Lawrence did not obtain preauthorization for this hip replacement procedure \npursuant to Commission Rule 099.30. \n \n20.  Dr. Brent Lawrence performed a revision of the total left knee replacement on October \n11, 2021. \n \n21. Dr. Lawrence did not obtain preauthorization of the revision of the total left knee as \nrequired by Commission Rule 099.30. \n \n22.  Respondent-carrier paid temporary total disability benefits for each of the Claimant's \nsurgeries performed by Dr. Lawrence. \n \n23.  The Claimant reached maximum medical improvement from his compensable \ninjuries on April 18, 2022. \n \n24.  Respondents have accepted the Claimant as being permanently and totally disabled as    \na result of his compensable injuries. \n \n\nScroggins -G807375 \n \n4 \n \n25. The Death & Permanent Total Disability Trust Fund will assume liability for permanent \nand total disability benefits on July 11, 2028. \nIssue(s) \nBy  agreement  of  the  parties,  the  central  issue  to  be  decided is  as  follows:  whether  the \nmedical treatment that the Claimant received under the care of Dr. Hefley and Dr. Lawrence was \nunauthorized medical treatment pursuant to Commission Rule 099.30, for which Respondents No. \n1 are not liable for because the Claimant did not obtain valid referrals and preauthorization prior \nto treating with these physicians.  In the event the Claimant is able to overcome these hurdles, he \nmust show that the medical treatment he received from them was reasonable and necessary for his \ninjuries.   \nContentions \n Claimant: The Claimant contends that on October 26, 2018, Claimant was involved in an \nincident  where  he  was  pinned/crushed  between  two  pieces  of  heavy  equipment  and  sustained \nmultiple injuries in the scope and course of his employment. Primarily, the Claimant injured his \nback, left hip, left knee, left ankle and his ribs.  The Claimant was taken to Shreveport LSU for \nemergency treatment. \n LSU Emergency Room Department diagnostic tests revealed a fracture of the left femoral \nhead and Claimant underwent surgery with hardware on October 28, 2018. \n Claimant was transferred back to Arkansas to treat with Dr. Henry Wallace.  An MRI  to \nthe Claimant’s left knee revealed a tear.  Dr. Wallace recommended surgery to the knee.  Claimant \nunderwent the arthroscopic knee surgery on December 28, 2018. \n\nScroggins -G807375 \n \n5 \n \n An  FCE  ordered  and  the  Claimant  gave  a  reliable  effort,  with  53  of  53  consistency \nmeasures.  Dr. Wallace released the Claimant at MMI for his knee and gave him an 11% rating to \nthe knee on April 23, 2019.  Dr. Wallace noted that the Claimant could not return to his previous \nemployment.  Dr. Wallace also ordered a CT of the Claimant’s left hip. \n The Claimant followed up with AR Care and additional treatment was being provided to \nthe  Claimant  regarding  his  injuries.    A  nerve  conduction  study  was  ordered,  and  Dr.  Anderson \nnoted that the EMG was an abnormal study. \n The Respondent then sent the Claimant to Rick Byrd for rating evaluations.  On June 24, \n2019 Rick Byrd assessed the Claimant with a 4% rating to the hip and a 9% LE rating to the knee. \n On  July  11,  2019,  Dr.  Anderson  ordered  a  Lumbar  Spine  MRI,  which  revealed  a  disc \nextrusion at L3-L4.  The Respondents, however, denied the low back injury in its entirety. \n Claimant  was  seen  by  Dr.  Brent  Lawrence,  who  diagnosed  the  Claimant  as  having  post \ntraumatic arthritis as a result of the work accident and recommended that the treatment left would \nbe total joint replacement for the knee and wanted to monitor the treatment of the hip. \n Claimant filed a Change of Physician to Dr. Joel Smith, who performed a left total knee \narthroplasty surgery on February 20, 2020.  The Respondents paid for this treatment.  On October \n13, 2020 Dr. Smith released the Claimant at MMI with 37% LE rating. \n Claimant  followed  up  with  Dr.  Lawrence,  who  recommended  another  MRI  on  the \nClaimant’s hip and noted that the Claimant would eventually require a hip replacement surgery.  \nDr.  Anderson  confirmed  on  April  9,  2020  that  the  Claimant  would  eventually  need  a  total  hip \nreplacement.  This was denied by the respondent-insurance carrier.  Claimant underwent the total  \n \n\nScroggins -G807375 \n \n6 \n \nhip arthroplasty on May 10, 2021. \n Dr.  Anderson  referred  the  Claimant  to  Dr.  Siddiqui,  which  was  also  denied  by  the \nRespondents. \n    Claimant was treated at Bowen and Hefley when Dr. Lawrence left the practice.  A bone \nscan  was  ordered  and  appeared  normal.     Claimant  followed-up  with  Dr.  Siddiqui,  who \nrecommended that the Claimant be seen by a neurologist, and he was referred to Dr. Burba.  Dr. \nBurba ordered additional testing, which revealed that the right and left peroneal nerve was reduced \nin  amplitude,  that  both  motor  and  sensory  nerves  were  reduced  in  amplitude  and  chronic \ndenervation  of  the  lumbar  spine  at  L4.  Dr.  Burba  opined  that  the  Claimant  suffers  from \npolyneuropathy,  severe  axonal  motor  and  sensory  poly  neuropathy  in  the  legs,  and  that  the \nClaimant suffers from CRPS.  As a result, Dr Siddiqui has not recommended a spinal stimulator. \n Claimant has had the trial spinal cord stimulator, which was successful.  Claimant then had \nthe replacement of the spinal cord stimulator on August 9, 2021.  It was successful.  \n Claimant was followed up with by Dr. Lawrence who recommended a revision of the left \ntotal  arthroplasty,  which  was  denied  by  the  workers’  compensation  carrier.    The  Claimant \nunderwent the surgery.    \n The Claimant then underwent a FCE and was assigned impairment ratings.  Respondents \nNo. 1 accepted the Claimant as permanently and totally disabled.  \n The Claimant contends that the medical bills from Dr. Lawrence in connection with the hip \nand knee surgery are both reasonable and necessary and should be paid by Respondents No. 1. \nRespondents No. 1: \nThe Claimant sustained compensable injuries to his left knee and left hip for which he has  \n\nScroggins -G807375 \n \n7 \n \nreceived both authorized and unauthorized medical treatment.  Respondents now acknowledge the \ncompensability of Claimant’s back injury as well.  The Claimant received and signed an AR-N on \nNovember  8,  2018.    Accordingly,  Respondents  No.  1  contend  that  they  are  not  liable  for  any \nunauthorized medical treatment received by the Claimant.   \nUnbeknownst  to  Respondents,  the  Claimant  first  saw  Dr.  Lawrence  on  August  5,  2019.  \nDr. Lawrence recommended that “for now, well watch his hip” and either “possible ligament and \nposterolateral corner repair or replacement surgery” for the knee.  The Claimant then sought \ntreatment from Dr. Joel Smith on August 16, 2019.  Dr. Smith ordered an MRI and saw him in \nfollow up on August 30, 2019.  At the follow up appointment on September 17, 2019, Dr. Smith \nrecommended a total knee replacement.  The Claimant then petitioned for a Change of Physician \nto Dr. Joel Smith.  The Change of Physician was approved on October 22, 2019, approving Dr. \nJoel  Smith  as  Claimant  authorized  treating  physician.    Prior  to  approving  the  total  knee \nreplacement, Respondents sent the Claimant to Dr. Lowery Barnes for IME.  After receiving Dr. \nBarnes’ report, Respondent No. 1 authorized the total knee replacement.  Dr. Smith released the \nClaimant  at  MMI  from  this  surgery  on  October  13,  2020  and  assessed  the  Claimant  a  37% \nimpairment to the lower extremity.  This rating has been paid in full. \nDr.  Barnes  also  opined  that  total  hip  replacement  would  be  related  to  the  compensable \ninjury, but he did not recommend a total hip replacement at that time.  Respondents have never \ndenied  liability  for  a  total  hip  replacement.    The  only  physician  to  recommend  a  total  hip \nreplacement  was  Dr.  Lawrence  and  neither  he  nor  the  Claimant  have  ever  provided  the \nRespondents with copies of medical records making this recommendation. \n\nScroggins -G807375 \n \n8 \n \nThe Claimant sought unauthorized treatment from Bowen Hefley on April 16, 2022 with \ncomplaints of left hip pain.  (Contrary to the statement in Claimant’s Contentions, Dr. Lawrence  \nwas never associated with Bowen Hefley.)  It was noted that the MRI of the left hip did not reveal \nany pathology and a bone scan was ordered.  The  bone scan performed on April 28, 2020, was \nnormal.  At a follow-up appointment at Bowen Hefley on May 4, 2020, no additional treatment \nwas recommended for Claimant’s left hip.               \nDr. Smith saw the Claimant on March 5, 2021, as a follow up on both the left knee and left \nhip pain.  Dr. Smith did not recommend any additional treatment at that time. \nRespondents  have  been  advised  the  Claimant  underwent  a  total  hip  replacement  by  an \nunauthorized physician, Dr. Brent Lawrence, on May 10, 2021, which was not preauthorized as \nrequired by Rule 099.30.  Respondents did not controvert this surgery and treatment as they were \nnever made aware of the fact that the Claimant was treating with Dr. Lawrence while also receiving \nauthorized  treatment  from  his  authorized  treating  physician,  Dr.  Joel  Smith  and  unauthorized \ntreatment  from  Bowen  Hefley  Orthopedics.    Upon  learning  of  this  procedure,  Respondents \ninitiated temporary total disability payment beginning the date of surgery.  \nUpon receipt of medical  records  from Dr. Brent  Lawrence, Respondents discovered that \nthe claimant has also undergone an additional revision surgery on his total knee replacement on \nOctober 11, 2021.  Again, this surgery was not authorized as the authorized physician did not seek \nauthorization for his procedure.  Nevertheless, Respondents acknowledge liability for the period \nof temporary total disability related to this unauthorized procedure. \n\nScroggins -G807375 \n \n9 \n \nAfter  receiving  medical  records,  Respondents  now  acknowledge  that  the  Claimant  also \nsustained a compensable injury to his low back.  However, it is unknown how the Claimant came \nto be treated by Dr. Siddiqui and Dr. Burba as neither physician was authorized to treat Claimant   \nand neither physician has submitted medical records to Accident Fund nor billed Accident Fund \nfor their treatment.  Respondents are attempting to pay medical bills for the Claimant’s back by \nrequesting the medical care providers of whom they are aware bill Accident Fund for their services \nso the bills can be paid pursuant to the Arkansas Fee Schedule.  Upon information and belief, the \nClaimant underwent surgery for placement of a spinal cord stimulator by Dr. Michael Calhoun on \nAugust  9,  2021.    Respondents  do  not  have  any  medical  records  related  to  his  procedure.    The \nClaimant  was  still  within  his  healing  period  and  receiving  TTD  for  his  total  hip  replacement \nprocedure when he underwent this procedure.  \nRespondent  No.  2:  The  Trust  Fund  waived  their  participation  in  the  adjudication  of  the \nissues at controversy.          \nEvidentiary Record \n The parties have agreed that the record consists of the following documentary exhibits: \n1.  Prehearing Order of January 18, 2023. \n2. The parties’ respective responsive filings to the Prehearing Questionnaire.  \n3. The parties filed Agreed to Stipulations with the Commission on January 17, 2023. \n4. Respondents No. 1’s Non-Medical Records consisting of ninety-five (95) numbered \npages. \n\nScroggins -G807375 \n \n10 \n \n5. A Joint Medical Exhibit consisting of one thousand and one hundred forty-three (1,143) \nnumbered pages.\n1\n \n \n6. The parties simultaneously filed Post-Trial Briefs on February 20, 2023. \n       FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nreview all of the relevant evidence, I hereby make the following findings of fact and conclusions \nof law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012):  \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n \n     of this claim. \n          2.         I hereby accept the afore stipulations as fact. \n          3.         The preponderance of the credible shows that the Claimant was furnished a Form  \n                      AR-N, and that the treatment that the Claimant’s received from Dr. Lawrence and  \n          Bowen Hefley was unauthorized and shall not be the responsibility of Respondents  \n                      No. 1. \n4.       Based on the above finding, the remaining issues relating to preauthorization under  \n                      Commission Rule 099.30, and whether the medical treatment was reasonable and \n                      necessary have been rendered moot and not discussed herein. \n \n1\n There is a clerical error in the Prehearing Order of January 18, 2023, on page 2, under \nthe section of the Designated Record, at #5.  It incorrectly states that there are eleven thousand \nand one hundred forty-three pages of the Joint Medical Exhibit, instead of one thousand and one \nhundred forty-three (1,143).    \n\nScroggins -G807375 \n \n11 \n \n                                                          Discussion           \nThe Claimant sustained multiple injuries on or about October 26, 2018, in the course and    \nscope of his employment with the respondent-employer.  His accidental injury occurred while he \nwas attempting to help a newly hired delivery driver.  The driver was trying to knock the equipment \noff of the “lowboy” trailer by striking the back of the equipment with the bucket of a “trackhoe.”        \nThe Claimant started to help the delivery driver remove the equipment off the trailer.  Then, he got \nin the seat of the equipment that need to be removed.  As the Claimant tried to move the equipment, \nthe driver started another attempt to move it.  At that point, the equipment shifted forward, and the \nClaimant became pinned against the steering wheel and control panels.  The Claimant immediately \nheard his left hip “pop.” \nShortly,  thereafter  the  Claimant  was  life  lifted  by  helicopter  to  LSU  Health  Shreveport. \nThe Claimant was evaluated and treated for injuries primarily to his hip and knee.  Respondents \nNo.  1  accepted  compensability  for  both  of  these  injuries.    However,  Respondents  No.  1  later \naccepted compensability for an injury to the Claimant’s low back.  Respondents No. 1 have paid \nindemnity and medical benefits on this claim.  The Respondents have  accepted the Claimant as \nbeing permanently and totally disabled as a result of his injuries.  \nAn overview of the Claimant’s treatment has been provided as outlined in the parties’ \nstipulations, contentions, and briefs.  Therefore, I will not repeat all of those facts here.   \nNevertheless, the Claimant’s treating physician for his hip and knee injuries was Dr. Henry \nWallace.    The  parties  stipulated  that  the  Claimant  petitioned  the  Commission  for  a  change  of \nphysician to switch from treating with Dr. Wallace to treat with Dr. Joel Smith.  The Administrator \n\nScroggins -G807375 \n \n12 \n \nof the Medical Cost Containment Department entered a change of physician order for the Claimant \nto treat with Dr. Smith, on October 22, 2019.   \nAt issue is whether the medical treatment that the Claimant received from Dr. Lawrence \nand Hefley Bowen was authorized medical expenses.  Under these change-of-physician rules, the \n“employer has the right to choose the initial primary care physician.  Once a physician has been \nchosen, a Claimant is only allowed to change physicians once, and then  only by petitioning the \nCommission.  “Treatment or services furnished or prescribed by any physician other than the ones \nselected  according  to  the  foregoing,  except  emergency  treatment,  shall  be  at  the  Claimant’s \nexpense.” Ark. Code Ann. §11-9-514(b) (emphasis added).  \nAfter  being  notified  of  an  injury,  the  employer  or  insurance  carrier  must  deliver  to  the \nClaimant (in person or by certified or registered mail, return receipt requested) a copy of a notice \napproved   or   prescribed   by   the   Commission,   which   explains   the   Claimant’s  rights  and \nresponsibilities  concerning  change  of  physician.  Ark.  Code  Ann.  §11-9-514(c).    Providing  this \nnotice is critical.  If an employer fails to provide this notice, then the change-of physician rules do \nnot  apply.  However,  if  the  employer  does  provide  this  notice,  then  any  unauthorized  medical \nexpenses  incurred  after  the  Claimant  has  received  a  copy  of  the  notice  “shall  not  be  the \nresponsibility of the employer.” Ark. Code Ann. § 11-9-514(c)(3) (emphasis added). \nAs a general rule, proof of delivery of a Form AR-N is a prerequisite to application of the \nchange of physician rules as a bar to liability for unauthorized treatment.  See generally Stephenson \nv. Tyson Foods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000).   However, the Commission has \nconcluded that, once a Claimant petitions the Commission for a change of physician, delivery of \n\nScroggins -G807375 \n \n13 \n \nthe  notice  is  not  an  issue.    William  M.  Johnson  v.  Ranch  Properties,  Inc.,  Full  Workers’ \nCompensation Commission, Opinion filed December 21, 1993 (E111447). \nThe parties stipulated that the Claimant received and signed the Form AR-N on November \n8,  2018.    During  his  deposition  testimony,  the  Claimant  confirmed  that  he  signed  for  the  Form \nAR-N  and  his  wife  filled  the  form  out  for  him.    Based  on  this  evidence,  and  the  fact  that  the \nClaimant obtained a change of physician October 2019, I find that the Claimant received the Form \nN  (both  pages)  on  November  8,  2018,  by  hand  delivery,  and  had  knowledge  of  his  rights  and \nresponsibilities.    Therefore,  treatment  or  services  furnished  to  or  prescribed  by  an  unauthorized \nphysician shall be at the Claimant’s expense.  Ark. Code Ann. §11-9-514.  \nIn the case at bar, neither Dr. Brent Lawrence nor Bowen Hefley is the Claimant’s treating \nphysician.  The evidence before me shows that the Claimant began treating with Dr. Lawrence on \nAugust 5, 2019, for continued knee pain without a valid referral.  The parties stipulated that the \nClaimant returned to Dr. Lawrence for additional medical without a valid referral from Dr. Smith.  \nThey  further  stipulated  that  on  May  10,  2021,  Dr.  Lawrence  performed  left  hip  replacement \nsurgery.  On October 11, 2021, Dr. Lawrence performed a total left replacement surgery.     \nMoreover, the parties stipulated that the Claimant sought medical treatment from Bowen \nHefley Orthopedics (for his hip pain) beginning on April 16, 2020, without receiving authorization \nfrom  the  respondent-carrier.    There  is  no  probative  evidence  of  record  demonstrating  that  the \nClaimant treated with Bowen Hefley on a valid referral or due to emergency treatment.  \nBased on my review of the record, I am unable to find that Dr. Lawrence or Bowen Hefley \nwas ever the Claimant’s authorized treating physician or that the Claimant sought treatment from  \n\nScroggins -G807375 \n \n14 \n \nthem on a valid referral.  Nor does the record show that the Claimant sought medical service from \neither  Dr.  Lawrence  or  Bowen Hefley  under  conditions  which  would  be  characterized  as \n“emergency  treatment.” Furthermore,  there  is  no  evidence  proving  that  Respondents  No.  1 \ncontroverted the Claimant’s medical treatment during the time he sought medical treatment from  \nDr. Lawrence or Bowen  Hefley.   In fact, the Claimant testified  during his deposition testimony \nthat he found Dr. Lawrence on his own, on the Internet.  However, during his deposition testimony, \nthe Claimant maintained that he did not recall who referred him to Dr. Hefley.  Considering the \nClaimant  was  provided  a  Form  AR-N  on  November  8,  2018,  informing  him  of  his  rights  and \nresponsibilities,  I  find  that  the  medical  treatment  the  Claimant  sought  from  Dr.  Lawrence  and \nBowen  Hefley  was  unauthorized  medical  treatment  obtained  at  his  own  expense.    Therefore, \nRespondents No. 1 are not liable for the medical services that the Claimant received from these \nunauthorized physicians.        \nThe issues  relating to preauthorization under Commission Rule 099.13, and whether the \nmedical care was  reasonably and necessary for the injuries received by the Claimant have  been \nrendered moot and not discussed in this opinion.                 \n                ORDER  \nBased on the foregoing findings and conclusion and of law, I find that Respondents No. 1 \nhand  delivered  to  the  Claimant  a  Form  AR-N  on  November  8,  2018.    Therefore,  the  medical \ntreatment the Claimant received from Dr. Lawrence and Bowen Hefley was unauthorized medical \nservices for his compensable injury of October 26, 2018.   \nAccordingly, Respondents No. 1 shall not be liable for any medical expenses incurred by  \n \n\nScroggins -G807375 \n \n15 \n \nthe  Claimant  while  under  the  care  of  Dr.  Lawrence  and  Bowen  Hefley.    All  remaining  issues \nrelating to the afore mentions medical services have been rendered moot and not addressed in this \nopinion.   \nIT IS SO ORDERED. \n \n \n                                  _____________________________                                                            \n                     Hon. Chandra L. Black \n                     Administrative Law Judge","textLength":26124,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: G807375 TRACY SCROGGINS, EMPLOYEE CLAIMANT WAYNE HOLDEN & COMPANY, EMPLOYER RESPONDENT NO. 1 ACCIDENT FUND INSURANCE, THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED JUNE 29, 2...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["knee","hip","back","ankle","fracture","lumbar"],"fetchedAt":"2026-05-19T23:06:56.960Z"},{"id":"alj-H204774-2023-06-29","awccNumber":"H204774","decisionDate":"2023-06-29","decisionYear":2023,"opinionType":"alj","claimantName":"Dawn Walters","employerName":"Mcclure & Associates Holdings Co., LLC","title":"WALTERS VS. McCLURE & ASSOCIATES HOLDINGS CO., LLC AWCC# H204774 JUNE 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WALTERS_DAWN_H204774_20230629.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WALTERS_DAWN_H204774_20230629.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H204774 \n \n \nDAWN WALTERS, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nMcCLURE & ASSOCIATES HOLDINGS CO., LLC,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nCAROLINA CASUALTY INSURANCE COMPANY,  \nINSURANCE CARRIER                                                                                        RESPONDENT                           \n          \nBERKLEYNET,                                                                                                                                   \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED JUNE 29, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, failed to appear for the hearing.         \n \nRespondents  represented  by  the  Honorable  Karen H.  McKinney,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                           Statement of the Case      \n \n A hearing was held on June 27, 2023, in the present matter before this Commission for a \ndetermination of whether the above-referenced matter should be dismissed for failure to prosecute \nunder  the  provisions  of  Ark.  Code  Ann.  §11-9-702  (Repl.  2012),  and Arkansas  Workers’ \nCompensation Commission Rule 099.13.  \nAppropriate Notice of this hearing was had on all parties to their last known address, in the \nmanner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the  June  27,  2023,  hearing  and  the  documents \ncontained therein. Specifically, the Respondents’ Hearing Exhibit consisting of eight pages was \n\nWalters – H 204774 \n \n2 \n \nmarked as Respondents’ Exhibit 1.  Additionally, the entire Commission’s file has also been made \na part of the record.  It is hereby incorporated into the hearing transcript by reference.   \n                                                                 Discussion \n On July 1, 2022, the Claimant’s attorney filed with the Commission a claim for workers’ \ncompensation  benefits  on  behalf  of  the  Claimant  by  way  of  a  Form  AR-C.    Specifically,  the \nClaimant’s attorney described  the  alleged  incident  as  follows: “During  the  scope  and  course  of \nemployment  the  Claimant  sustained  injuries  to  the  right  knee  and  other  whole  body.”    These \nalleged injuries occurred on January 26, 2022.  The Claimant’s attorney checked all the boxes for \nboth initial and additional workers’ compensation benefits.        \n  The  respondent-insurance-carrier  filed  a  Form  AR-2  with  the  Commission  on  July  26, \n2022, wherein they accepted compensability of the claim as a “Medical” only claim.  \n On or about March 22, 2023, the Claimant’s attorney filed with the Commission a Motion \nto Withdraw requesting to be relieved as counsel of record for the Claimant in this matter.  The \nFull  Commission  entered  an  order granting  the  motion  for  Claimant’s  attorney  to  withdraw  as \ncounsel of record for the Claimant in this matter on April 6, 2023. \nSince the filing of the Form AR-C, there has been no action whatsoever taken on the part \nof the Claimant to prosecute this claim, or otherwise pursue any type of workers’ compensation \nbenefits.  \nTherefore,  on  April  13,  2023,  the  Respondents  attorney  filed  a Respondents’  Motion  to \nDismiss with the Commission requesting to have the within claim dismissed due to the Claimant’s \nfailure  to  prosecute  it.  Per  this  motion,  the  Respondents  attorney  contended  that  more  than  six \nmonths have lapsed since the filing of the Form AR-C without a request for a hearing. \n\nWalters – H 204774 \n \n3 \n \nThe  Commission  sent  a  notice  to  the Claimant’s  last  known  address  listed  in  the \nCommission’s file to notify her with of the Respondents’ motion to have her claim dismissed.  Said \nnotice was mailed to the Claimant on April 24, 2023.  Per this correspondence, the Claimant was \ngiven a deadline of twenty days for  filing a written response to the Respondents’ motion.  Said \nnotice was mailed to the Claimant by both certified and first-class mail via the United States Postal \nService.  The notice sent by certified mailed was returned to the Commission on May 16,  2023, \nmarked as “unclaimed mail.”  However, the letter sent by first-class mail has not been returned.    \nYet, there was no response from the Claimant. \nTherefore, this matter was set for a dismissal hearing.  Pursuant to a Hearing Notice dated \nMay  18,  2023,  the  Commission  notified  the  parties  that  a  hearing  was  scheduled  to  address  the \nRespondents’  motion  to  dismiss  this  claim  due  to  a  lack  of  prosecution.    Said  hearing  was \nscheduled for June 27, 2023, at 10:30 a.m., at the Arkansas Workers’ Compensation Commission, \nin Little Rock, Arkansas.   \nOn  June  1,  2023,  the  United  States  Postal  Service  informed  the  Commission  that  they \ndelivered the above item to the Claimant’s home and left it with her.   Hence, the return receipt \nbears the Claimant’s signature.  \n Still, there was no response from the Claimant. \nA hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \nfailed to appear at the hearing.  However, the Respondents appeared through their attorney.   \nCounsel noted among other things, that the Claimant has done nothing to pursue her claim \nfor workers’ compensation benefits since the filing of the Form AR-C.  Most significantly, counsel \nnoted that the Claimant failed to follow-up with medical appointments scheduled for her by the \nRespondents.  Therefore, counsel moved that this claim be dismissed “with” prejudice under Ark. \n\nWalters – H 204774 \n \n4 \n \nCode  Ann.  §11-9-702,  and Arkansas Workers’ Compensation Commission Rule 099.13,  due  to \nthe Claimant’s failure to seek medical treatment, and because she has not requested a hearing since \nthe filing of the claim more than six months ago.      \nThe record before me shows that a request for a hearing has not been made by or on behalf \nof the Claimant since the filing of the Form AR-C, which was over more than six (6) months ago.  \nMost notably, the Claimant failed to appear at the dismissal hearing to object to her claim being \ndismissed.    Moreover,  the  Claimant  has  failed  to  respond  to  the  notices  of  this  Commission.  \nHence, the preponderance of the evidence shows that the Claimant has abandoned her claim for \nworkers’ compensation benefits.  Therefore, based on all of the foregoing reasons, I therefore find \nthat the dismissal of this claim is warranted, pursuant to the provisions of Ark. Code Ann. §11-9-\n702, and Commission Rule 099.13. This dismissal is without prejudice, to the refiling of it within \nthe limitation period specified by law.   \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim. \n  \n2. The evidence preponderates that the Claimant has failed to prosecute her    \n                        claim for workers’ compensation benefits under the provisions of Ark Code    \n                        Ann. §11-9-702, and Commission Rule 099.13. \n  \n3. The Respondents’ motion to dismiss this claim is well founded. \n \n4. Appropriate Notice of the dismissal hearing was tried on all parties to their \nlast known address, in the manner prescribed by law. \n \n5.  This claim is hereby respectfully dismissed, without prejudice, under Ark.  \nCode Ann. §11-9-702, and Rule 099.13, to the refiling of it within the period \nof time specified by law.   \n\nWalters – H 204774 \n \n5 \n \nORDER \n \n In accordance with the findings and conclusions of law set forth above, this claim is hereby \ndismissed  pursuant  to  the  provisions  of  Ark.  Code  Ann.  §11-9-702,  and  Arkansas Workers’ \nCompensation  Commission  Rule  099.13, without  prejudice  to  the  refiling  of it,  within  the \nlimitation period as specified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":8626,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H204774 DAWN WALTERS, EMPLOYEE CLAIMANT McCLURE & ASSOCIATES HOLDINGS CO., LLC, EMPLOYER RESPONDENT CAROLINA CASUALTY INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT BERKLEYNET, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 29, 2023 Hearing held ...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:06:59.097Z"},{"id":"alj-H207041-2023-06-29","awccNumber":"H207041","decisionDate":"2023-06-29","decisionYear":2023,"opinionType":"alj","claimantName":"Kenneth Williams","employerName":"Malvern School District","title":"WILLIAMS VS. MALVERN SCHOOL DISTRICT AWCC# H207041 JUNE 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILLIAMS_KENNETH_H207041_20230629.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILLIAMS_KENNETH_H207041_20230629.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.: H207041 \n \nKENNETH WILLIAMS (DEC’D), EMPLOYEE                                             CLAIMANT \n \nMALVERN SCHOOL DISTRICT, EMPLOYER                                       RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION,  \nINSURANCE CARRIER/ THIRD PARTY  \nADMINISTRATOR(TPA)                                                                             RESPONDENT \n \nOPINION FILED JUNE  29, 2023 \n \nHearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK in Hot Springs, \nGarland County, Arkansas. \n \nClaimant represented by the Honorable Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  the  Honorable  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nStatement of the Case \nOn  March  31,  2023,  the  above-captioned  claim  came  on  for  a  hearing  in  Hot  Springs, \nArkansas.  A pre-hearing telephone conference was conducted on December 14, 2022, from which \na  Pre-hearing Order was filed on that same day.  A copy of the said order and the parties’ \nresponsive filings have been marked as Commission’s Exhibit No. 1 and made a part of the record \nwithout objection. \nStipulations \nDuring the pre-hearing telephone conference, and/or during the hearing the parties agreed \nto the following stipulations: \n 1.  The Arkansas Workers’ Compensation Commission has jurisdiction of the within claim. \n \n\nWilliams – H207041 \n2 \n \n2. That the employee-employer-carrier relationship existed at all relevant times including \non or about April 26, 2022, when the Claimant sustained injuries that resulted in his \ndeath. \n3. The Claimant’s average weekly wage was $1,562.29, which amounts to $547.00 for \nweekly widow benefits. \n4. All issues not litigated herein are reserved under the Arkansas Workers’ Compensation \nAct. \n5. The Respondents have controverted this claim in its entirety. \n6. The parties stipulated to the identification of Mr. Gary Burton, Jr., a news anchor, who \ntestified telephonically/FaceTime.  \nIssues \nBy agreement of the parties the issues to be litigated at the hearing are as follows: \n1. Whether the Claimant sustained “compensable injury(ies)” that resulted in death at a \ntime when he was performing employment services. \n2. If the Claimant’s alleged injury is deemed compensable, the extent to which his \nwidow is entitled to medical expenses incurred, spousal benefits, and funeral \nexpenses.\n1\n \n \n3. Whether the Claimant’s attorney is entitled to a controverted fee. \nContentions \n \nThe respective contentions of the parties are as follows: \nRespondents:  \nRespondents contend that Claimant did not suffer compensable injuries under the \nArkansas Workers' Compensation Act. \n \n \n1\n At the beginning of the hearing, the Respondents’ attorney withdrew Issue # 2. \n\nWilliams – H207041 \n3 \n \nClaimant:   \nThe Claimant's average weekly wage (AWW) will be determined by the contract of hire, \nwage records and Arkansas law.  On April 26, 2022, the Claimant was tragically killed while on a \nschool  field  trip.    The  Respondents  should  be  responsible  for  all  medical  expenses  incurred \ntherewith  and  death  and  spousal  benefits  pursuant  to  the  Act.  The  Claimant  is  also  entitled  to \nreasonable and necessary attorney's fees.  All other issues are reserved. \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear  the  testimony  of  the  witnesses  and  observe  their  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n \n    claim. \n \n2.     I hereby accept the above-mentioned proposed stipulations as fact. \n3.    The Claimant was performing employment services at the time of his fatal death. \n          4.        The remaining issues in this matter have been reserved.  \n   \n  \nSummary of Evidence \nDuring the hearing, the following witnesses testified: Mrs. Cynthia Williams (Claimant’s \nwidow); Mr. Grant Williams (Claimant’s son); Mr. Jon Stevenson (Malvern Middle School Band \nDirector);  Gary  Burton,  Jr.  (news  anchor),  the  news  reporter;  and  Ms.  Jennifer  Shnaekel,  the \nMalvern High School Principal.    \n\nWilliams – H207041 \n4 \n \n            The  record  consists  of  the  March  31,  2023  hearing  transcript,  comprising  the  following \nexhibits: Specifically, Commission’s Exhibit No. 1 includes the Commission’s Prehearing Order \nfiled on December 14, 2022 and the parties’ responsive filings; Claimant’s Exhibit No. 1 is a Non- \nMedical Exhibit and encompasses thirty-five numbered pages; Claimant’s Exhibit 2 is an Online \nArticle by Mr. Gary Burton consisting of three pages; and Respondents’ Exhibit No. 1 is a Non- \nMedical Exhibit, consisting of twenty-five numbered pages.  \n                                                          Testimony \n \nMrs. Cynthia Williams \n \n Mrs. Williams confirmed that she had been married to Mr. Kenneth Williams (she referred \nto him as Ken), the deceased Claimant, since 1988.  The couple has two adult children, Grant and \nGrace Ann, their ages are 29 and 26, respectively.  She confirmed that neither of their children was \ndependent  on  the  Claimant.  However,  Mrs.  Williams  verified  that  she  was  dependent  on  her \nhusband and his income at the time of his death.  She verified that during the marriage, she never \nseparated from Mr. Williams.  They lived together at the time of his death as spouses.  The couple \nlived in Malvern at the time of the Claimant’s fatal accident.  Mrs. Williams confirmed she worked \nfor the Maumelle Middle School.  She retired in 2016 but had gone back to work.  However, Mrs. \nWilliams has since retired again.   \n On the early evening of April 26, 2022, around 6:00 p.m., Mrs. Williams testified that she \nreceived a call from her phone, which indicated he had dialed 911.  She tried calling her husband \nback multiple times but was unable to reach him.  As a result, Mrs. Williams, sent him a text asking \nwhat was going on and he responded, “Not sure,” or “I don’t know.”  She was aware her husband \nwas returning home from a band meeting in Arkadelphia.  At the time of Mr. Williams’ death, he \nworked at Malvern High School, and was the band director.  She confirmed that Mr. Williams’ \n\nWilliams – H207041 \n5 \n \naccident occurred on  I-30, somewhere between  Friendship and Malvern.   Mrs. Williams agreed \nthat her husband routinely traveled for work, and that he routinely used his truck for work travel. \n According  to  Mrs.  Williams,  the  Claimant  would  go  to  meetings  and  rehearsals,  and \nsometimes he would follow the bus if he had to carry something such as stands.  However, Mrs. \nWilliams testified that most of the time, if Mr. Williams was traveling with the students, he would \nride the bus with them.   \n            Mrs. Williams testified that occasionally Williams’ meetings would be within the confines \nof the of the 8:00 a.m. to 3:00 p.m., school day.  She testified that his meetings were in the evenings \nand on Saturdays.  Mrs. Williams confirmed that she is familiar with the Arkansas State Band and \nOrchestra Association/ASBOA.    \nShe confirmed that she previously worked at the high school campus for eighteen years, \nwhere her husband worked at the time of his death.  Mrs. Williams agreed that she has extensive \npersonal  and  direct  personal  knowledge  of  what  her  husband  did  on  a  day-to-day  basis.    Mrs. \nWilliams agreed that her husband also traveled with the band to football games.       \nMrs. Williams confirmed her husband attended the ASBOA meetings.  She confirmed   that \nat the time of Mr. Williams’ death, he was on his way back home from a Region II  ASBOA \nmeeting, when his fatal accident occurred.  Mrs. Williams agreed that the Claimant would often \ntimes judge events, choir/band events, either all region or otherwise around the state.  She agreed \nthat the Claimant would travel to those events on his own, and use his personal vehicle, as this was \na  fairly  common  occurrence.  Mrs.  Williams  agreed  that  her  husband  would  routinely  have \nMalvern School District band items in his truck.  She testified that he always had music, CDs with \nrecordings, his laptop, marching charts, and a music stand or two in the back.  According to Mrs. \n\nWilliams – H207041 \n6 \n \nWilliams, he would use his personal vehicle to travel from the high school to the middle school to \ntake instruments back and forth. \nShe  confirmed  that  she  has  not  been  reimbursed  by  the  carrier  for  any  of  the  expenses \nintroduced  into  evidence.    Nor  has  Mrs.  Williams  received  any  benefits  from  the  workers’ \ncompensation  carrier  as  a  result  of her husband’s  death.  She  testified  that  at  the  time  of  Mr. \nWilliams’ death, he was traveling back to Malvern from a band meeting, but she does not know \nwhere he was directly going once, he got to Malvern. \nOn cross-examination, Mrs. Williams confirmed that her deposition was taken on January \n13, 2023.  She confirmed that her husband had been the band director for thirty-two to thirty-three \nyears at the Malvern High School.  Mrs. Williams testified that she found out about her husband’s \nband meeting the morning of April 26.  She confirmed that it was her understanding that it was \njust a day trip, and he would not be spending the night.  Mrs. Williams confirmed that he took his \npickup truck to attend the band meeting.  She agreed that he sometimes took a van/school vehicle, \nif he transported students.  Mrs. Williams confirmed that the school has a Suburban available if \nteachers or band directors wanted to use it to go to different events.      \nMrs. Williams confirmed that she read the police report from the accident that happened \non April 26.  However, she verified that she does not know any of the individuals named in the \nreport.  Nor does she have any reason to believe that her husband knew any of them. \nMr. Grant Williams \n Mr.  Williams  testified  that  he  is  a  police  officer  for  Ouachita  Baptist  University.    He \nconfirmed  that  Kenneth  Williams  was  his  father.    Mr.  Williams  further  confirmed  that  his  dad \nwould routinely transport items for the band (such as drums, instruments, music stands, and chairs) \nin  his  personal  vehicle,  as  band  director  for  Malvern  High  School.    He  confirmed  that  he  was \n\nWilliams – H207041 \n7 \n \nfamiliar with the day-to-day activities of his dad as band director.  Mr. Williams confirmed that he \nparticipated in the band while in school.   \nWith respect to the accident, Mr. Williams testified that he was notified of the accident by \nTrooper Daniels, with the Arkansas State Police.  He confirmed that the Claimant had been to a \nmeeting before his accident.  However, Mr. Williams admitted that he did not know where his dad \nwas headed at the time of his accident.   \nMr.  Williams  confirmed  that  he  after  the  accident,  he  picked  his  dad’s  truck  up.    He \nconfirmed  that  he  observed  what  was  in  his  dad’s  truck.    Mr.  Williams  was  shown  photos  of \nevidence that depicted the contents of the vehicle when he picked it up after his father’s death.  He \nconfirmed that at page 29 of Claimant’s Non-Medical Exhibit, the photo reflects what he saw when \nhe  picked  up  the  vehicle.    He  confirmed  that  there  was  an  orange  Malvern  High  School  jacket, \nwhich was something his father wore.  Mr. Williams also observed his dad’s backpack, computer, \na Bible, a journal notebook, a band instrument, and sheet music.  He confirmed that he returned \nall Malvern High School property to the high school.  \nJon Stevenson      \n Mr.  Stevenson  is  the  Band  Director  at  Malvern  Middle  School  and  the  Assistant  Band \nDirector at Malvern High School.  He confirmed that he worked with Mr. Williams during the last \nschool  year.    At  the  time  of  Mr.  Williams’  death,  he  worked  in  this  position.    Mr.  Stevenson \nconfirmed that they worked together cohesively between the high school and middle school. He \nconfirmed  that  he  is  familiar  with  Arkansas  School  Band  and  Orchestra  Association.    Mr. \nStevenson  verified  that  he  is  a  member  and  that  his  dues  are  paid  out  of  the  band  budget.    He \nexplained that the organization allows other band directors and orchestra directors to get together \nto help their students with performing activities such as all region band or concert  assessments. \n\nWilliams – H207041 \n8 \n \nMr. Stevenson explained that it is an organization that provides a way for them to collaborate with \neach other and get together to figure out ways to continue to teach their students band and music \nin general.   He confirmed that they have to be a member of ASBOA for their students to be eligible \nto participate different performances during all-region and all-state band competitions.    \n  He confirmed that Mr. Williams was a member of ASBOA.  Mr. Stevenson confirmed that \nthere was a meeting scheduled for April 26, 2022.  He admitted that he was at that meeting.  Mr. \nStevenson confirmed the agenda of record for the spring meeting of that year.  He verified that the \nmeeting was mandatory for band director.  Per Mr. Stevenson, normally the region chair would \nnotify their principals or the school if they failed to attend the meeting.  Therefore, it was important \nfor them to attend those meetings.              \n Mr. Stevenson was shown a copy of the agenda for the meeting, which stated the meeting \nstarted at 5:12 p.m., and was held at the Goza Middle School.  He confirmed that under the Region \nEvent and Dates there was a motion to accept the events and dates, which was one of the purposes \nof the meeting.  Mr. Stevenson confirmed that the document  shows that the Claimant made the \nmotion.  He further confirmed that Mr. Williams attended the meeting.   \n Under further questioning, Mr. Stevenson testified that he used his own personal vehicle \nto get to the meeting.  He confirmed that Mr. Williams also used his own vehicle.  Mr. Stevenson \ndenied  that  he  had  to  get  permission  from  Ms.  Shnaekel  or  anyone  to  attend  the  meeting.    He \nagreed  that  there  was  an  email  sent  to  them  (which  included  Mr.  Williams)  about  payment  for \nsome patches, so their students could participate in the all-region band.  He testified that the patches \nwere paid for out of the band budget.  Mr. Stevenson denied having any knowledge of where the \nClaimant was headed after the meeting, or if the Claimant was going back to Malvern High School.  \n\nWilliams – H207041 \n9 \n \n Mr. Stevenson agreed that there are invitational competitions, such as marching assessment \nfor  regional  and  state  competitions,  football  games  and  auditions  they  must  participate  in.    He \nconfirmed that Mr. Williams has judged the competitions, many of which were outside the normal \nschool hours.    \nOn cross-examination, Mr. Stevenson admitted that the school did not reimburse him  \nfor his travel to Arkadelphia.  \nGary Burton, Jr. \n Mr. Burton testified that he authored, Claimant’s Exhibit 2.  He confirmed that on April \n26, 2022, he worked as a reporter and anchor for KARK 4 News and Fox 16.  Mr. Burton admitted \nthat he did an article about the fatal death of the Malvern High School Band Director’s passing, \nwhich has been introduced into evidence.  He confirmed that he investigated the incident and wrote \nthe article after speaking with folks from the Malvern School District.  Mr. Burton agreed that he \nreceived  information  that  Mr.  Williams  was  headed  back  to  Malvern  after  having  attended  a \nregional band directors’ meeting in Arkadelphia.   He confirmed that he received the information \nfrom someone with the school district, Manuel Bulhoes, the Assistant Principal of Malvern High \nSchool.      \nJennifer West Shnaekel \n Ms. Schnaekel testified on behalf of the Respondents.  She is the principal for the1 Malvern \nSchool District.  She has worked in that capacity for nine years.  Ms. Shnaekel gave an overview \nof  her  employment  duties  as  principal.    She  confirmed  that  she  was  Mr.  Williams’  direct \nsupervisor.  Ms. Shnaekel also explained Mr. Williams’ employment duties, band director.   \n She confirmed that Mr. Williams had to complete sixty hours of professional development \ntraining.  Ms. Shnaekel admitted that she is familiar with ASBOA.  She denied that his attendance \n\nWilliams – H207041 \n10 \n \nat ASBOA was in any way part of his professional development hours.  Ms. Shnaekel denied she \nwas aware that Mr. Williams was traveling to Arkadelphia to any type of meeting.  Nor was there \nany paperwork presented to her office for the trip to the meeting.  She testified that she is not a \nmember of ASBOA, she could not state the meeting was mandatory.  Ms. Shnaekel testified that \nnot being a member of ASBOA, or familiar with the organization, she cannot say attendance at the \nmeeting was mandatory.  She denied that it benefitted the school for Mr. Williams to stop and help \nsomeone on the side of the rode. She denied that the Claimant was required to act as a firefighter, \npolice officer or EMT as part of his job duties as a band director. \n On cross-examination, Ms. Shnaekel confirmed that she does not dispute Mr. Stevenson’s \ntestimony that he did not obtain anybody’s permission to attend the meeting.   She again confirmed \nthat  it  was  her  position  that  the  meeting  was  an  informal  meeting  of  some  band  friends.    Ms. \nShnaekel admitted that Mr. Williams would sometimes stop by her office, and mention to her that \nhe had gone to dinner with other band directors.   \n The  documentary  evidence  shows  that  the  Claimant  was  killed  on  I-30  while  assisting \nindividuals involved in a car accident on April 26, 2022.  Another vehicle came along and lost a \ntire, which stuck and killed the Claimant.     \n \n                    Adjudication \n \nEmployment Services \n \nFor the Claimant to establish a compensable injury as a  result of a specific incident, the \nfollowing requirements of Ark. Code Ann. §11-9- 102(4)(A)(i) (Repl. 2002), must be established: \n(1)  proof  by  a  preponderance  of  the  evidence  of  an  injury  arising  out  of  and  in  the  course  of \nemployment;  (2)  proof  by  a  preponderance  of  the  evidence  that  the  injury  caused  internal  or \nexternal  physical  harm  to  the  body  which  required  medical  services  or  resulted  in  disability  or \n\nWilliams – H207041 \n11 \n \ndeath; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. §11-9-\n102 (4)(D), establishing the injury; and (4) proof by a preponderance of the evidence that the injury \nwas  caused  by  a  specific  incident  and  is  identifiable  by  time  and  place  of  occurrence.  Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997). \nEmployment  services  may  be  defined  as  an  activity  which  benefits  the  employer. CV’s \nFamily Foods v. Caverly, 2009 Ark. App. 114, 304 S.W.3d 671 (2009).  The test for whether an \nemployee’s injuries resulted from work-related services is whether the injury occurred within the \ntime and space boundaries of employment when the employee was carrying out the employer’s \npurpose or advancing the employer’s interest either directly or indirectly. White v. Georgia-Pacific \nCorp., 339 Ark. 474, 6 S.W.3d 98 (1999).  \nAt issue is whether the accident occurred while the Claimant was performing employment \nservices the time of his fatal accidental injury of April 26, 2022.  The Claimant’s accident occurred \nwhile he was helping the occupants involved in a previous accident when a tire blow from another \ncar, striking the Claimant.    \nHere, the Claimant was the Band Director for Malvern High School for over three decades.  \nHe was required to routinely travel as part of his duties as a band director.  This is established by \nthe testimony of all of the witnesses.  Therefore, I find that the Claimant was required to travel as \nan integral part of his job.  Although the Claimant often times used his personable vehicle to travel, \nhe did not request reimbursement from the school district.  The evidence shows that the Claimant \nwas returning home from a mandatory regional band meeting that benefitted the students and the \nschool district.  I did not find his supervisor’s testimony credible in this regard.  Nevertheless, the \nmeeting that the Claimant attended related to his job as band directed and advanced the interests \nof the students as well as the school.   I find that the Claimant was performing employment services \n\nWilliams – H207041 \n12 \n \nat the time that his fatal work accident occurred because he had not yet returned home.  His accident \noccurred while returning home, although he had gotten out of his car along the path home to help \nother motorists.   \nTo summarize, the evidence demonstrates that, because travel was an essential part of the \nClaimant’s work for the school  district  as  band  director  on  April  26,  2022  when  his  accidental \ndeath  arose  out  of  and  in  the  course  of  the  Claimant’s employment.  The record shows that the \naccident occurred within the time and space boundaries of the  employment, when the  Claimant \nwas directly carrying out the employer’s purpose by returning home from his trip.  Whether or not \nthe Claimant was assisting other individuals on the road or in his vehicle, the record indicates in \nwas attempting to return home at the time of his accident.  He had not veered of the beam at the \ntime of his accident.    \n         AWARD \n The Claimant was performing employment services at the time of his fatal accident on \nApril 26, 2022.  \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          HON. CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE \n \n \n \n \n \n\nWilliams – H207041 \n13","textLength":22318,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H207041 KENNETH WILLIAMS (DEC’D), EMPLOYEE CLAIMANT MALVERN SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, INSURANCE CARRIER/ THIRD PARTY ADMINISTRATOR(TPA) RESPONDENT OPINION FILED JUNE 29, 2023 Hearing held before ADMINISTRATIVE...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:07:01.244Z"},{"id":"alj-H204176-2023-06-28","awccNumber":"H204176","decisionDate":"2023-06-28","decisionYear":2023,"opinionType":"alj","claimantName":"Maxine Harris","employerName":"Wis International","title":"HARRIS VS. WIS INTERNATIONAL AWCC# H204176 JUNE 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HARRIS_MAXINE_H204176_20230628.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARRIS_MAXINE_H204176_20230628.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204176 \n \nMAXINE HARRIS, EMPLOYEE  CLAIMANT \n \nWIS INTERNATIONAL, \nEMPLOYER                                                                                                RESPONDENT  \n \nAIU INSURANCE COMPANY, \nINSURANCE COMPANY                                                                          RESPONDENT \n \nGALLAGHER BASSETT SERVICE, INC., \nTHIRD PARTY ADMINISTRATOR                                                           RESPONDENT  \n \n \nOPINION FILED JUNE 28, 2023 \n \nHearing before Administrative Law Judge Steven Porch on June 27, 2023, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant is represented by Laura Beth York, Attorney at Law, Little Rock, Arkansas. \n \nThe  Respondents  were  represented  by  Carol  Lockard  Worley,  Attorney  at  Law,  Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on June 27, 2023, in Little Rock, \nArkansas.  Claimant, who was represented by Attorney Laura Beth York, did appear for \nthe hearing.  Respondents were represented at the hearing by  Attorney Carol Lockard \nWorley.  In  addition  to  Respondent’s argument and  Respondents’  Exibit  “1”,  the  record \nfurther consists  of  the  Commission’s  file,  which  has  been  incorporated  herein  in  its \nentirety by reference. \n The evidence reflects that Claimant’s injury occurred on May 11, 2022, where she \npurportedly injured her left knee and other whole body.  This incident allegedly occurred \nwhen Claimant was was on her knees counting materials for her employer. A hearing was \n\nHARRIS H204176 \n \n \n2 \nheld  on  June 27,  2023,  in  Little  Rock,  Arkansas,  on  the  Motion  to  Dismiss.  And  as \npreviously stated, the Claimant and her attorney did appear for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted without prejudice. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \n\nHARRIS H204176 \n \n \n3 \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46 Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven  reasonable  notice,  at  the  addresses  provided  by  each  party,  for  the Motion  to \nDismiss  hearing  under  Rule  13.  I  further  find  that  Claimant  has  abridged this  rule. \nClaimant’s counsel agrees with this dismissal without prejudice. Thus I find Respondent’s \nMotion to Dismiss should be granted without prejudice. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4889,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204176 MAXINE HARRIS, EMPLOYEE CLAIMANT WIS INTERNATIONAL, EMPLOYER RESPONDENT AIU INSURANCE COMPANY, INSURANCE COMPANY RESPONDENT GALLAGHER BASSETT SERVICE, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 28, 2023 Hearing before Administrati...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:06:52.833Z"},{"id":"alj-H208528-2023-06-27","awccNumber":"H208528","decisionDate":"2023-06-27","decisionYear":2023,"opinionType":"alj","claimantName":"Lance Carpenter","employerName":"Crownover Co","title":"CARPENTER VS. CROWNOVER CO. AWCC# H208528 JUNE 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CARPENTER_LANCE_H208528_20230627.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CARPENTER_LANCE_H208528_20230627.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H208528 \n \nLANCE CARPENTER, EMPLOYEE         CLAIMANT \n \nCROWNOVER CO., EMPLOYER              RESPONDENT  \n \nOWNERS INSURANCE COMPANY/  \nCARRIER/TPA               RESPONDENT \n \nOPINION FILED JUNE 27, 2023 \n \nHearing  before  Administrative  Law  Judge  James  D.  Kennedy  in  Mountain  Home, \nBaxter County, Arkansas, on June 21, 2023. \n \nClaimant is Pro Se and did not appear. \n \nRespondents are represented by Mr. Rick Behring, Jr., Attorney-at-Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  June  21,  2023,  in Mountain, \nArkansas, on  respondent’s  Motion  to  Dismiss  for failure  to  prosecute  pursuant  to  Ark. \nCode Ann.§ 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act.  The \nclaimant contended that he sustained injury to his right shoulder on or about November \n15,  2022.    On  or  about  December  22,  2022,  the  claimant  filed  a  Form  AR-C with  the \nCommission requesting benefits.  In order to prepare for their defense, the respondents \nretained  counsel  and  propounded  Interrogatories  and  Requests  for  Production  of \nDocuments to the claimant on March 8, 2023, and additionally requested authorizations.   \nThe  claimant  has  now  indicated  that  he  no  longer  wishes  to  prosecute  the  claim and \nnotified the respondents by letter that was made part of the record.  Nearly six (6) months \nhave passed since the claimant filed an AR-C, and the claimant has not sought any type \n\nCARPENTER – H208528 \n \n2 \n \nof hearing.  A Motion to Dismiss for failure to prosecute was filed on March 28, 2023, and \nthe claimant failed to respond to the motion.   \nA  hearing  was  set  for  June  21,  2023,  in  regard  to  the  Motion  to  Dismiss.   The \nclaimant failed to appear at the hearing after proper notice.  At the time of the hearing, \nRick  Behring  appeared  on  behalf  of  the  Respondents  and  asked  that  the  matter  be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice pursuant to Rule \n099.13 of the Arkansas Workers’ Compensation Act at this time.   \nIT IS SO ORDERED: \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2760,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208528 LANCE CARPENTER, EMPLOYEE CLAIMANT CROWNOVER CO., EMPLOYER RESPONDENT OWNERS INSURANCE COMPANY/ CARRIER/TPA RESPONDENT OPINION FILED JUNE 27, 2023 Hearing before Administrative Law Judge James D. Kennedy in Mountain Home, Baxter County, Arkansas, on...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:06:46.632Z"},{"id":"alj-H008267-2023-06-27","awccNumber":"H008267","decisionDate":"2023-06-27","decisionYear":2023,"opinionType":"alj","claimantName":"Craig Chism","employerName":"Pathfinder Inc","title":"CHISM VS. PATHFINDER INC. AWCC# H008267 JUNE 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CHISM_CRAIG_H008267_20230627.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CHISM_CRAIG_H008267_20230627.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H008267 \n \nCRAIG CHISM, EMPLOYEE          CLAIMANT \n \nPATHFINDER INC., EMPLOYER              RESPONDENT  \n \nATA WC TRUST/ RISK MANAGEMENT RESOURCES  \nCARRIER/TPA              RESPONDENT   \n         \nOPINION FILED JUNE 27, 2023 \n \nHearing  before  Administrative  Law  Judge  James  D.  Kennedy  in  Little  Rock, \nArkansas, on June 27, 2023. \n \nClaimant is Pro Se and did not appear. \n \nRespondents are represented by Ms. Carol Lockard Worley, Attorney-at-Law, Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on  June 27, 2023, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct.  The claimant had contended he sustained an injury to his right ankle, leg and hip on \nor about October 10, 2022.  The claimant was previously represented by Laura Beth York, \nwho was allowed to withdraw by an Order of the Full Commission on April 18, 2023.  The \nrespondents  filed  a  Motion  to  Dismiss  for  Failure  to  Prosecute  on  April  28,  2023, \ncontending  that  the  claimant  had  failed  to  prosecute  the  claim  and  that  no bona  fide \nrequest for a hearing had been made within six months of filing the claim. The claimant \nfailed to respond to the Motion to Dismiss.      \nA  hearing  was  set  for  June  27,  2023,  in  regard  to  the  Motion  to  Dismiss.    The \nclaimant failed to appear at the hearing after proper notice.  At the time of the hearing, \n\nCHISM – H008267 \n \n2 \n \nCarol  Worley  appeared  on  behalf  of  the  Respondents  and  asked  that  the  matter  be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice pursuant to Rule \n099.13 of  the  Arkansas  Workers’  Compensation  Act  and  Ark.  Code  Ann.  §11-9-702  at \nthis time.   \nIT IS SO ORDERED: \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2521,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H008267 CRAIG CHISM, EMPLOYEE CLAIMANT PATHFINDER INC., EMPLOYER RESPONDENT ATA WC TRUST/ RISK MANAGEMENT RESOURCES CARRIER/TPA RESPONDENT OPINION FILED JUNE 27, 2023 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Arkansas, on June...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:2"],"injuryKeywords":["ankle","hip"],"fetchedAt":"2026-05-19T23:06:48.700Z"},{"id":"alj-H202662-2023-06-27","awccNumber":"H202662","decisionDate":"2023-06-27","decisionYear":2023,"opinionType":"alj","claimantName":"David Ferren","employerName":"Townsell & Hill, Inc","title":"FERREN VS. TOWNSELL & HILL, INC. AWCC# H202662 JUNE 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FERREN_DAVID_H202662_20230627.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FERREN_DAVID_H202662_20230627.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n CLAIM NO.: H202662 \n \nDAVID W. FERREN, EMPLOYEE                                                                       CLAIMANT \n \nTOWNSELL & HILL, INC., EMPLOYER                                  RESPONDENT \n \nSTONETRUST COMMERCIAL INS. CO., \n INSURANCE CARRIER                                                                                    RESPONDENT  \n \nSTONETRUST INSURANCE, THIRD PARTY    \nADMINISTRATOR(TPA)                                                                                  RESPONDENT \n \n   OPINION FILED JUNE 27, 2023 \n \nHearing held before Administrative Law Judge Chandra L. Black in Little Rock, Pulaski County, \nArkansas. \n \nThe Claimant, pro se, unrepresented.  \nThe Respondents represented by the Honorable Mr. Zachary F. Ryburn, Attorney at Law, Little \nRock, Arkansas.   \n     Statement of the Case \nOn  April  26,  2023,  the  above-captioned  claim  came  on  for  a  hearing  in  Little  Rock, \nArkansas.  A pre-hearing telephone conference was conducted on February 22, 2023, from which \na Pre-hearing Order\n1\n was filed on that same day.  A copy of said order and the parties’ responsive \nfilings have been marked as Commission’s Exhibit No. 1 and made a part of the record without \nobjection.    \n \n1\n It appears that I inadvertently omitted the Pre-hearing Order from the April 26, 2023, hearing transcript.  \nTherefore, it has been blue-backed and merged into the hearing transcript by reference.   \n\nFerren – H202662 \n2 \n \n \nStipulations \n By agreement of the parties the stipulations applicable to this claim are as follows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within  \n \nclaim. \n \n \n2. That  the  employee-employer-carrier  relationship  existed  at  all  relevant  times \nincluding on or about September 22, 2019, when the Claimant allegedly sustained \nan injury to his right shoulder. \n3. The parties will stipulate to the Claimant’s average weekly wage (AWW) as well \nas the corresponding compensation rates later. \n4. The Respondents have controverted this claim in its entirety.  \n \n5. All   issues   not   litigated  herein  are  reserved  under  the  Arkansas  Workers’ \nCompensation Act. \n6. The Respondents have not paid any benefits on this claim.\n2\n  \nIssues \nBy agreement of the parties, the issues to be adjudicated at the hearing are as follows: \n1.  Whether this claim is barred by the statute of limitations. \n2.         Whether the Claimant sustained a compensable injury to his right shoulder. \n \n2\n At the beginning of the hearing, the parties jointly agreed that the Respondents have not paid any benefits \nto or on behalf of the Claimant in this matter.  \n\nFerren – H202662 \n3 \n \n \n3. Whether the Claimant is entitled to medical treatment for his alleged injury.  \n4. Whether the Claimant is entitled to temporary total disability compensation from  \nSeptember 23, 2019 through a date yet to be determined. \nContentions \nThe parties’ contentions are set forth below.   \nClaimant:   \nThe  Claimant  contends  that  he  sustained  a  compensable  injury  to  his  right  shoulder  on \nSeptember 22, 2019.  Per the Claimant’s responsive filing, his injury occurred as follows: “While \nflagging for a cane operator, I was pulling the rig to clear the crane and he fell through a beam and \ntore his rotator cuff.”   He further contends that he is entitled to medical treatment and temporary \ntotal disability for his alleged shoulder injury.    \n Respondents: \n The  Respondents  stated in their responsive filing, “The  statute  of  limitations  has  run  on \nthis claim.  The injury did not occur.” \n                     FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear the testimony of the Claimant and observe his demeanor, I hereby make the following findings  \nof fact and conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this  \n    claim. \n \n\nFerren – H202662 \n4 \n \n \n \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n            \n3.       Claimant has failed to prove by a preponderance of the evidence, that his claim was \n                      timely filed.  Instead, the evidence preponderates that this claim for initial benefits   \n          is barred by the statute of limitations period set forth in Ark. Code Ann. §11-9-702   \n          (Repl. 2012).  \n4.        Because of the above findings/conclusions, the remaining issues— whether Claimant  \nsustained  a  compensable  injury  to  his  shoulder  by  specific  incident;  whether  he  is \nentitled to reasonable and necessary medical treatment; and temporary total disability \nbenefits —are moot due to the above finding and have not been addressed herein.  \nSummary of Evidence \nDuring the hearing, the only witness to testify was the Claimant, Mr. David Wayne Ferren.  \n            The record consists of the April 26, 2023 hearing transcript, comprising of the following \nexhibits: Specifically, Commission’s Exhibit No. 1 (the Prehearing Order has been blue-backed) \nincludes  the  Commission’s  Prehearing  Order  filed  on February  22,  2023  and  the  parties’ \nresponsive filings; Respondents’ Exhibit No. 1 is entitled Respondents’ Documentary Index, \nwhich consists of a cover sheet and six numbered pages. \n                                                  Testimony \n  \n The  Claimant,  age  62,  has  a  high  school  education.    He  has  prior  work  experience  as  a \ncarpenter for a construction company.  The Claimant confirmed that he is alleging a work-related  \n \n\nFerren – H202662 \n5 \n \n \ninjury to his shoulder.  According to the Claimant, he reported his injury to Mr. Mitchell Gough, \nhis boss. \n Specifically,  the  Claimant  offered  the  following  account  of  his  conversation  with  Mr. \nGough: \nMR. FERREN:  I went down and told him – I told him I just fell, and I said, “I don’t know \nwhat I did but I can’t move my shoulder at all.”  So he called Todd and reported it, and \nthey were supposed to’ve made a accident report on the job. \n \nThe Claimant testified that Todd is the owner of Townsell & Hill/the respondent-employer.   \nHe  confirmed  that  they  did  not  offer  him  any  medical  treatment.  The  Claimant  testified  that  he \nwent to the doctor on his own, and they performed an X-ray of his shoulder.  However, according \nto the Claimant, it did not reveal anything.  The Claimant worked for the respondent-employer for \nfourteen months after his alleged injury, before losing his job.   \n Subsequently, the Claimant obtained an MRI of his shoulder approximately two years after \nthe incident.  However, the Claimant did not recall the exact date the MRI was performed.  The \nClaimant verified that he is alleging an injury to his right shoulder.  He denied any prior problems \nwith his right shoulder or having sought any medical treatment for his shoulder before his alleged \nwork-related incident.  The Claimant last worked in March 2022.  According to the Claimant, his \nemployment was ended because he told a coworker he was not going to wear a harness anymore \nbecause it hurt his shoulder.  The Claimant further explained that his coworker reported what he \nhad said to Todd (Townsell), and he did not give him a chance to explain, he just fired him. \n  \n\nFerren – H202662 \n6 \n \n \nThe Claimant admitted he filed a claim for an injury to his shoulder after he obtained the \nMRI.  He confirmed having filed a Form AR-C with the Commission.  The Claimant verified that \nhe did not file a claim until two years after his injury.  He was asked again if the Respondents ever  \npaid on his claim, and his reply was, “Nope.”  The Claimant used his personal health insurance \nthat he obtained through the company (the respondent-employer) to pay for his medical treatment. \n He  confirmed  that  he  did  not  file  a  claim  for  his  shoulder  condition  until  April  4,  2022.  \nThe Claimant verified that he filed a Form AR-C with the Commission at that time.  He admitted \nthat he signed the form on March 30, 2022.  Next, the Claimant maintained that he filed a claim \nprior to April 4, by calling the Commission.  Then, the Claimant stated that he does not know if \nhe filed a claim before April 4, 2022.   \nOn  cross-examination,  the  Claimant  was  shown  an  intake  form/clinic  note  from  Unity \nHealth/Searcy Medical Center.  The Claimant obtained medical treatment from that facility on July \n22, 2021.  Per this form, the Claimant reported that he fell and hurt his shoulder at work about six \nyears  ago.    However,  the  Claimant  denied  having  an  injury  to  his  shoulder  six  years  ago.    The \nClaimant testified that the first time he went to the doctor was in 2019.   He agreed that the form \nshould read he had an injury a little over two years ago.   \nThe  Claimant  confirmed  that  he  fell  between  some  rafters/a  bottom  beam  and  hurt  his \nshoulder as he reported in his interrogatories.  He further explained: \nMR.  FERREN:  I  loaded   --  I  flagged  in  a  crane  with  a  full  bundle  of  plywood,  and  the \nchoker turned up and I pulled on the choker to get it unplug, and when it broke loose, it \nmade me stepped back and I stepped in the beam and landed right on my shoulder.    \n \nHe confirmed that he drew unemployment benefits after the respondent-employer fired  \n \n\nFerren – H202662 \n7 \n \n \nhim.  The Claimant admitted that he filed a claim after he got the MRI done.  According to the \nClaimant,  it  took  him  over  four  months  to  get  approval  for  the  MRI  through  his  private  health \ninsurance.  \n                                                    Medical Evidence \nThere is  only  one  medical  record  of  evidence.    On  July  22,  2021,  the  Claimant  sought \nmedical treatment from Unity Health at Searcy Medical Center.   Dr. Justin O. Franz evaluated the \nClaimant due to a chief complaints of right shoulder injury/pain.  Per this clinic note, the Claimant \nunderwent an MRI of the right shoulder on June 28, 2021, with an impression of, in relevant part: \n“A  full  thickness  near  full  width  tear  of  the  supraspinatus...”  Dr. Franz assessed the Claimant \nwith “1.  Localized primary osteoarthritis of right shoulder.  2. Chronic tear of rotator cuff tendon-\nunspecified  rotator  cuff  tear  or  rupture  of  right  shoulder,  not  specified  as  traumatic.    3.  \nNontraumatic rupture of right shoulder, not specified as traumatic.”     \n          Adjudication \nA.  Statute of Limitations  \n The crucial issue for determination is whether the Claimant filed a timely claim for benefits \nwith  the  Commission  for  his  alleged  September  22,  2019,  right  shoulder  injury.    The  Claimant \nessentially alleges that he timely filed a claim for his alleged shoulder injury of September 22,  \n \n\nFerren – H202662 \n8 \n \n \n2019, for which he is entitled to associated benefits.   Respondents contend that this claim is barred \nby the statute of limitations. \nIn that regard, Arkansas law limits the time in which a claim for compensation may be filed. \nThe relevant statute of limitations is set out in Ark. Code Ann. §11-9-702 (a) (1), which states in \npertinent part:  \nA claim for compensation for disability on account of an injury, other than an occupational \ndisease  and  occupational  infection,  shall  be  barred  unless  filed  with  the  Workers' \nCompensation Commission within two (2) years from the date of the compensable injury.  \nIf, during the two-year period following the filing of the claim, the  Claimant receives no \nweekly benefit compensation and receives no medical treatment resulting from the alleged \ninjury, the claim shall be barred thereafter.   \n \nThe burden rests on Claimant to prove that his claim was timely filed. Stewart v. Ark. Glass \nContainer, 2010 Ark. 198, 366 S.W.3d 358; Kent v. Single Source Transp., 103 Ark. App. 151, \n287 S.W.3d 619 (2008).  Under Ark. Code Ann. §11-9-705(a)(3) (Repl. 2012), he must prove this,  \nby  a  preponderance  of  the  evidence.   The standard “preponderance of the evidence” means the \nevidence having greater weight or convincing force. Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d \n415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \nThe  Claimant  admitted  that  he  did  not  receive  any  type  of  payment for  medical  or   \nindemnity benefits from the Respondents for his alleged shoulder injury of September 22, 2019. \nMoreover, the Claimant’s testimony is corroborated by the documentary evidence, and there is no  \n\nFerren – H202662 \n9 \n \n \nprobative evidence to the contrary.   In fact, the Claimant initially readily admitted that he did not \nfile a claim for benefits until the filing of the Form AR-C, which occurred on April 4, 2022.  I  \nfound this part of his testimony credible.  However, the Claimant later denied that this was the first \ntime  he  filed  his  claim.    Instead,  the  Claimant  maintained  he  filed  a  claim  by  calling  the \nCommission.    While  such  action  does  not  constitute  the  filing  of  a  claim,  I  must  note  that  the \nClaimant  has  introduced  no  probative  evidence  to  establish  this  statement.    Of  significance,  the \nClaimant contradicted himself and gave conflicting and confusing testimony in this regard.  I found \nthe Claimant to be less than forthcoming in his assertion of having filed a claim before April 4, \n2022.    Nevertheless,  the  evidence  before  shows  that  the  Claimant  did  not  file  a  claim  with  the \nCommission for his alleged shoulder injury until April 4, 2022.              \n No benefits have been paid  on this claim.   Therefore, this is  a claim for initial worker’s \ncompensation benefits.  The Claimant’s alleged  date  of  injury  for  his  right  shoulder  injury  is \nSeptember 22, 2019.   Hence, the Claimant had until September 22, 2021, to file a claim with this \nCommission.   However, the evidence before clearly demonstrates that the Claimant did not file a \nclaim  with  this  Commission  until  April  4,  2022,  when  he  filed  the  Form  AR-C.    Hence,  no \nprobative evidence in the record indicates otherwise.  This leads me to conclude that the filing of \nthis claim is more than two years from the date of the alleged injury.  Considering the foregoing, \nI  am  compelled  to  conclude  that  this  claim  is  time-barred  pursuant  to  the  specified  statute  of \nlimitations for a claim of initial benefits.      \n\nFerren – H202662 \n10 \n \n \nB.  Remaining Issues  \nBecause  of  the  foregoing,  the  remaining  issues—whether  Claimant  alleged  that  he \nsustained a compensable injury to his right by specific incident; whether he is entitled to reasonable \nand necessary medical treatment; and temporary total disability benefits —are moot and will not \nbe addressed. \n                                                         ORDER \nIn accordance with the findings of fact and conclusions of law set forth above, this claim \nfor initial workers’ compensation benefits is barred by the statute of limitations.  As such, this  \nclaim for benefits must be, and it hereby, respectfully denied and dismissed.   \nIT IS SO ORDERED. \n \n \n                                  _____________________________                                                            \n                     Honorable Chandra L. Black \n                     Administrative Law Judge","textLength":15673,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H202662 DAVID W. FERREN, EMPLOYEE CLAIMANT TOWNSELL & HILL, INC., EMPLOYER RESPONDENT STONETRUST COMMERCIAL INS. CO., INSURANCE CARRIER RESPONDENT STONETRUST INSURANCE, THIRD PARTY ADMINISTRATOR(TPA) RESPONDENT OPINION FILED JUNE 27, 2023 Hearing held befo...","outcome":"denied","outcomeKeywords":["dismissed:1","granted:1","denied:2"],"injuryKeywords":["shoulder","rotator cuff","back"],"fetchedAt":"2026-05-19T23:06:50.774Z"},{"id":"full_commission-G605091-2023-06-23","awccNumber":"G605091","decisionDate":"2023-06-23","decisionYear":2023,"opinionType":"full_commission","claimantName":"Patricia Kizzire","employerName":"Petrus Stuttgart, Inc","title":"KIZZIRE VS. PETRUS STUTTGART, INC. AWCC# G605091 JUNE 23, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Kizzire_Patricia_G605091_20230623.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Kizzire_Patricia_G605091_20230623.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n CLAIM NO. G605091 \n \nPATRICIA G. KIZZIRE, EMPLOYEE                               CLAIMANT \n \n \nPETRUS STUTTGART, INC.                                          RESPONDENT NO. 1   \n \n \nCENTRAL ARKANSAS AUTO DEALERS SIF/ \nRISK MANAGEMENT RESOURCES, \nCARRIER/TPA                                                               RESPONDENT NO. 1 \n \nDEATH AND PERMANENT TOTAL DISABILITY \nTRUST FUND                                                                    RESPONDENT NO. 2 \n \n \nORDER FILED JUNE 23, 2023 \n \nBefore the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. \n \nClaimant represented by the HONORABLE GARY DAVIS, Attorney at Law, \nLittle Rock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE KAREN H. \nMcKINNEY, Attorney at Law, Little Rock, Arkansas. \n \nRespondent No. 2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \n \n \nORDER \n \n  Presently before the Full Commission is Respondents’ Motion \nto Admit Additional Evidence On Appeal To The Full Commission dated \nMay 12, 2023.   \n  After consideration of Respondents’ motion with no objection \nby the Claimant to the motion and all other matters properly before the \n\nKizzire-G605091                      2 \n \nCommission, we find that the Respondents’ Motion To Admit Additional \nEvidence On Appeal To The Full Commission should be and is hereby \ngranted.     \n  IT IS SO ORDERED. \n    ____________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n    ____________________________________          \n    M. SCOTT WILLHITE, Commissioner \n \n \n    _____________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":1713,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G605091 PATRICIA G. KIZZIRE, EMPLOYEE CLAIMANT PETRUS STUTTGART, INC. RESPONDENT NO. 1 CENTRAL ARKANSAS AUTO DEALERS SIF/ RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT NO. 1 DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 ORDER FILED JU...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.346Z"},{"id":"alj-H203950-2023-06-23","awccNumber":"H203950","decisionDate":"2023-06-23","decisionYear":2023,"opinionType":"alj","claimantName":"Danny Andrew","employerName":"Tfc, Inc","title":"ANDREW VS. TFC, INC. AWCC# H203950 JUNE 23, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Andrew_Danny_H203950_20230623.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Andrew_Danny_H203950_20230623.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203950 \n \n \nDANNY T. ANDREW, EMPLOYEE CLAIMANT \n \nTFC, INC., EMPLOYER RESPONDENT \n \nEMCASCO INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JUNE 23, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  June 22, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  David  C.  Jones,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on June 22, 2023, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant, who according \nto  Commission  records  is pro se,  failed  to  appear  at  the  hearing.    Without \nobjection,  the  Commission’s  file  on  the  claim  has been  incorporated  herein  in  its \nentirety  by  reference.    In  addition,  Respondents’  Exhibit  1, forms,  pleadings  and \ncorrespondence  related  to  the  claim,  consisting  of 22  numbered  pages,  was \nadmitted into evidence. \n\nANDREW – H203950 \n2 \n \n The record reflects the following procedural history: \n The  First  Report  of  Injury  or  Illness  filed  on  June  7,  2022,  reflects  that \nClaimant purportedly injured the middle and index fingers of his left hand at work \non March  22,  2022.    Per  the  Form  AR-2  that  was  also  filed  on  June  7,  2022, \nRespondents  accepted  the  claim  as  a  medical-only  one.  Claimant  filed  a  Form \nAR-C on May 25, 2022.  Therein, he asserted that on March 22, 2022, the tips of \nthe fingers referenced above were amputated by a brake press. \n Respondents   covered   the   treatment  that   Claimant   received.      It   was \nrecommended  that  he  undergo  surgical  treatment  of  his  fingers.    But  on  four \nseparate occasions, he failed to show up to undergo the procedure.\n1\n \n The record reflects that no further activity occurred on the claim until March \n1,  2023,  when  Respondents  filed  the  instant  motion,  asking  for  dismissal  of  it \nunder AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 (Repl. 2012).  On March \n20, 2023, my office wrote Claimant, asking for a response to the motion within 20 \ndays.  The letter was sent by first-class and certified mail to the address listed for \nClaimant in the file and matching that on his Form AR-C.  The certified letter was \nreturned to the Commission, unclaimed, on June 1, 2023; but the first-class letter \nwas  not  returned  to  the  Commission.    Regardless,  no  response  from  him  was \nforthcoming.  On May 18, 2023, I scheduled a hearing on Respondents’ motion for \n \n \n1\nThe  Arkansas  Court  of  Appeals  has  held  that  if  a  claimant  abandons  his \ncourse  of  treatment,  his  healing  period  could  be  found  to  have  ended  with  that \nabandonment.  See, e.g., Breakfield v. In & Out, Inc., 79 Ark. App. 402, 88 S.W.3d \n861 (2002). \n\nANDREW – H203950 \n3 \n \nJune 22, 2023, at 10:00 a.m. at the Commission in Little Rock.  Notice of this was \nsent to Claimant by certified and first-class mail at the same address as before.  In \nthis  instance,  Claimant  signed  for  the  certified  letter  on  May  20,  2023;  and  the \nfirst-class  letter  to  him  was  never  returned.    Thus,  the  evidence  preponderates \nthat he received the Notice of Hearing. \n The hearing on the Motion to Dismiss proceeded as scheduled on June 22, \n2023.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission has  jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. Claimant has failed to prosecute his claim. \n4. Dismissal of this claim is thus warranted under AWCC R. 099.13. \n5. The  application  of  Ark.  Code  Ann.  §  11-9-702(d)  (Repl.  2012)  is \nmoot and will not be addressed. \n\nANDREW – H203950 \n4 \n \n6. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof the claim within limitation period specified in subsection (b) of this \nsection. \n \nIn turn, AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing  the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nclaim–by  a  preponderance  of  the  evidence.  This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \n\nANDREW – H203950 \n5 \n \npursuit of it (including appearing at the June 22, 2023, hearing to argue against its \ndismissal) since the filing of the Form AR-C on May 25, 2022.  Thus, the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nthe application of § 11-9-702(d) is moot and will not be addressed. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).  At  the  hearing,  Respondents  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities,  I  agree  and  find  that the \ndismissal of this claim should be and hereby is entered without prejudice.\n2\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nANDREW – H203950 \n6 \n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7834,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H203950 DANNY T. ANDREW, EMPLOYEE CLAIMANT TFC, INC., EMPLOYER RESPONDENT EMCASCO INS. CO., CARRIER RESPONDENT OPINION FILED JUNE 23, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on June 22, 2023, in Little Rock, Pulaski County, Arkans...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:06:42.430Z"},{"id":"alj-G409071-2023-06-23","awccNumber":"G409071","decisionDate":"2023-06-23","decisionYear":2023,"opinionType":"alj","claimantName":"Ruby Moody","employerName":"Arkansas Department Of Community Correction","title":"MOODY VS. ARKANSAS DEPARTMENT OF COMMUNITY CORRECTION AWCC# G409071 JUNE 23, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MOODY_RUBY_G409071_20230623.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOODY_RUBY_G409071_20230623.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: G409071 \nRUBY MOODY, EMPLOYEE                                                                               CLAIMANT \n \nARKANSAS DEPARTMENT OF COMMUNITY  \nCORRECTION, EMPLOYER                                                                          RESPONDENT \n                                                                                                         \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/THIRD PARTY ADMINSTRATOR (TPA)                               RESPONDENT \n \n \n               OPINION FILED JUNE 23, 2023    \n         \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Little Rock, \nPulaski County, Arkansas. \n \nClaimant  represented  by  the  Honorable  William  C.  Frye,  Attorney  at  Law,  North  Little  Rock, \nArkansas. \n \nRespondents represented by the Honorable Charles H. McLemore, Attorney at Law, Little Rock, \nArkansas. \n \n \nStatement of the Case \nOn  March  29,  2023,  the  above-captioned  claim  came  on  for  a  hearing in  Little  Rock, \nArkansas.  A pre-hearing telephone conference was conducted on January 26, 2023, from which a \nPre-hearing Order was filed on that same day.  A copy of the said order and the parties’ responsive \nfilings have been marked as Commission’s Exhibit No. 1 and made a part of the record without \nobjection. \nStipulations \nDuring the pre-hearing telephone conference, and/or during the hearing the parties agreed \nto the following stipulations: \n\nMoody – G409071 \n \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n2. That  the  employee-employer-carrier  relationship  existed  at  all  relevant  times \nincluding on or about October 30, 2014, when the Claimant sustained compensable \ninjuries to her cervical and lumbar spine. \n3. That  the  Claimant's  average  weekly  wage  (AWW)  on  the  date  of  her  accidental \ninjury was $695.84, with corresponding compensation rates of $464.00 per week \nfor  temporary  total  disability  (TTD)  compensation,  and  $274.00  each  week  for \npermanent partial disability (PPD) benefits. \n4. That Respondents accepted and are paying a combined value rating of 19% for the \nClaimant’s lumbar and cervical injuries. \n5. That Respondents have controverted this claim for wage-loss disability benefits.  \n6. All issues not litigated are reserved under the Arkansas Workers’ Compensation \nAct. \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether the Claimant is entitled to wage loss disability for the combined rating of \n19% for her compensable neck and back injuries.   \n2. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n The respective contentions of the parties are as follows: \n\nMoody – G409071 \n \n3 \n \nClaimant:  The  Claimant  was  involved  in  a  compensable  motor  vehicle  accident.    The \nClaimant sustained back and neck injuries.  For her cervical injury, she was treated by Dr. Shahim \nand Dr. Roman.  Dr. Shahim performed a cervical fusion.  Dr. Barry Baskin assigned a rating of \n10% to the body as a whole.  The Claimant also sustained injuries to the lumbar spine.  She was \nfollowed  by  Dr.  Rosenzweig  for  what  he  termed  a  disc  herniation  of  L3-4.    The  Claimant \nunderwent  another  MRI,  which  showed  a  disc  herniation  at  L5-S1.    The  Claimant  has  been \nfollowed  for  this  by  Dr.  Roman,  who  has  performed  steroid  injections.    Dr.  Roman  placed  the \nClaimant at maximum medical improvement on May 2, 2022, and issued an impairment rating of \n5%, pursuant to the A.M.A. Guidelines, Fourth Edition, Table 75, Page 113. \nAll of the Claimant' s treating physicians have opined that the Claimant cannot return to \nwork in law enforcement. Therefore, the Claimant is entitled to wage loss disability.  The Claimant \nis willing to undergo a vocational rehabilitation assessment at the expense of the Respondents. \nRespondents:  The Respondents contend that the Claimant reported having an injury to her \nneck  and  low  back  on  October  30,  2014  which  Respondents  accepted  as  compensable.  The \nRespondents  contend  that  the  Claimant  has  been  provided  reasonable  and  necessary  medical \ntreatment for the compensable injuries to her cervical and lumbar spine, including ongoing pain \nmanagement  treatment  with  Dr.  Carlos  Roman,  and  treatment  with  Dr.  Reza  Shahim  who \nperformed cervical fusion at C6-7 and partial corpectomy at C5 surgery on October 26, 2021.  Dr. \nShahim did not find the Claimant to be a surgical candidate for her lumbar spine, recommending \nconservative treatment instead when he released the Claimant on April 4, 2022.  The Claimant has \nalso  been  seen  by  Dr.  Barry  Baskin,  who  on  April  11,  2022  determined  the  Claimant  to  be  at \nMaximum Medical Improvement and assigned the Claimant a 10% anatomical impairment rating \nto  the  body  as  a  whole  for  her  cervical  spine.  Dr.  Baskin  found  the  Claimant  did  not  have  any \n\nMoody – G409071 \n \n4 \n \npermanent impairment to her lumbar spine because he specifically found her lumbar spine to be a \ndegenerative process, not the result of a work injury from October 31, 2014.\n1\n  Dr. Baskin wrote \nthat  the  Claimant  cannot  return  to  all  the  duties  of  a  correctional  officer,  including  self-defense \ntactics,  however,  the  Claimant,  who  has  two  college  degrees,  was  not  found  to  be  completely \nunable to work by Dr. Baskin.  Respondents have agreed to provide this Claimant with vocational \nrehabilitation. \n The  Respondents  have  paid  the  Claimant  temporary  total  disability  benefits  during  her \nhealing period, and Respondents have accepted the 10% anatomical impairment assigned for her \ncervical  spine.    The  Claimant  continues  to  be  provided  medical  treatment  by  the  Respondents, \nwhich  is  in  the  form  of  pain  management.    The  Respondents  contend  that  the  Claimant  cannot \nsustain her burden of proving that she is entitled to permanent disability benefits in excess of the \nanatomical impairment rating.        \nThe Respondents reserve the right to raise additional contentions, or to modify those stated \nherein, pending the completion of discovery. \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear  the  testimony  of  the  Claimant  and  observe  her  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n \n    claim. \n \n \n1\n The correct date of the Claimant’s accidental work injury is October 30, 2014.  \n\nMoody – G409071 \n \n5 \n \n \n2.     I hereby accept the above-mentioned proposed stipulations as fact. \n \n    3.        The Claimant proved by a preponderance of the evidence that she sustained wage- \n \n          loss disability benefits in the amount of 24% over and above her combined value  \n \n          rating of a 19% impairment for her neck and back injuries of July 19, 2022.  \n \n          4.        The Claimant’s attorney is entitled to a controverted attorney’s fee on the indemnity   \n \n                      benefits awarded herein.  \n \n          5.        All issues not litigated are reserved under the Arkansas Workers’ Compensation  \n                     Act.      \nSummary of Evidence \nDuring the hearing, the only witness to testify was the Claimant, Ms. Ruby Moody.  \n            The  record  consists  of  the  March  29,  2023  hearing  transcript,  comprising  the  following \nexhibits: Specifically, Commission’s Exhibit No. 1 includes the Commission’s Prehearing Order \nfiled  on  January  26,  2023 and the parties’ responsive  filings; Respondents’  Exhibit  No.  1  is a \nMedical  Exhibit,  consisting  of  seventy-one  pages; Respondents’  Exhibit  No.  2  encompasses a \nNon-Medical Packet, consisting of twenty-five pages. \n                                                  Testimony \n  \n The Claimant, age 57, lives in Arkadelphia, Arkansas.  She has confirmed that she takes \nvarious  prescription  medications  for  her  compensable  injuries.    Her  injury  medications  are \nprescribed  by  Dr.  Carlos  Roman,  and  her  primary  care  physician,  Dr.  Robert  Durham.    The \nClaimant testified that she takes Flexeril, Gabapentin, Hydrocodone, Duloxetine, Metformin, and \nCymbalta.  She confirmed that her medications have side effects of memory loss, particularly with \nthe  Gabapentin.    According  to  the  Claimant,  she  forgets  things  during  conversations  and  has a \nchallenging time with finding the right words. \n\nMoody – G409071 \n \n6 \n \n She confirmed she has been in law enforcement for fifteen years.  The Claimant confirmed \nshe has a Bachelor of Science degree.  She previously worked at a jail/sheriff’s department.  The \nClaimant has past work experience at a sewing factory.  The Claimant obtained an associate degree \nin  respiratory  therapy  in  1999,  but  she  never  obtained  a  license.    She  worked  in  this  field  at  a \nhospital for about a year.   \nAccording  to  the  Claimant,  she  next  went  to  work  in  law  enforcement  at  Benton  Work \nRelease Program.  The Claimant supervised inmates, conducted pat-downs, and she had to be able \nto fire a gun, if needed.  If an inmate became unruly, they had to be able to do a takedown.  The \nClaimant is not allowed to go back to this kind of work due to her compensable injuries.    \n The Claimant testified that she is unable to return to Correctional Officer or Parole Officer \nwork because she has to be a 100% to work in law enforcement.  She must be able to qualify for \nfirearms, which she is unable to do.  They have to be able to do defensive tactics courses, transport \ninmates,  and  do  pat-downs  searches.    The  Claimant  went  to  work  in  February  2002  as  a \ncorrectional  officer at Clark County Sheriff’s  Department.    She  gave  a  brief  overview  of  her \nemployment duties while working for the sheriff’s department.  (TR p. 21) \n The Claimant went back to college and earned a Bachelor of Science in Psychology and a \nminor in Criminal Justice.  She graduated from Henderson State University.  Shortly thereafter, \nthe Claimant went to work for the Arkansas Department of Community Correction (ADCC), as a \nParole/Probation Officer.  The Claimant is also prevented from working as a Parole Officer due to \nher not being able qualify for firearms.  She gave an overview of her employment duties for that \nposition.  (TR p. 22)  \nHowever, the Claimant testified that is unable to turn her neck since the surgery.  According \nto  the  Claimant,  her  neck  is  restricted,  and  this  affects  her  ability  to  turn  while  driving.    The \n\nMoody – G409071 \n \n7 \n \nClaimant  confirmed  she can  drive  to  Arkadelphia  sometimes,  which  is  seven  minutes  from  her \nhome.    She  explained  that  she  unable  to  do  all  the  bending  and  turning  required  for  driving.  \nAccording  to  the  Claimant,  the  medications  she  takes  prevent  her  from  carrying  a  gun.    She \ntestified that she has numbness in her right hand and neck.  The Claimant testified that she had to \ncarry a .9 mm Glock, which is a heavy gun, and she does not think she would be able to carry that \ntype of gun on her hip all day.  Under further questioning, the Claimant confirmed she had to input \ndata into the computer throughout her workday.  However, she testified that she is able to spend \nonly ten minutes at a computer before she starts tensing up and hurting. \n The Claimant gave an overview of her accidental injury.  She essentially testified that on \nOctober 30, 2014, they had training in Hot Springs, and were on their way home.  Per the Claimant, \nwhen they got to the red light, one of her coworkers ran a red light and hit a car, that car hit another \ncare, and then a car hit them.  The Claimant confirmed she was riding in the back seat.  She was \ntransported to the hospital.  The Claimant admitted she underwent her first surgery on October 26, \n2021.  Dr. Shahim did a cervical fusion.  According to the Claimant, she thought the first surgery \nwas  an  answer  to  her  prayers,  but  after  three  weeks  she  had  to  undergo  another  surgery.    She \nadmitted that eventually they sent her to Dr. Roman for pain management.  He did some injections \nin her back, which provided her a little relief of her symptoms.  After the Claimant’s third injection, \nshe did not get any relief.  As a result, he performed a rhizotomy, and it worked for a little while, \nbut the pain came back.  The Claimant admitted she had back surgery at L5-S1 in September of \n2022.  According to the Claimant, the back surgery provided her with some relief.  She tried to \nwalk but the next day she would be in bed with her hips hurting all the way down her leg.  \n She confirmed that she has undergone two  functional capacity  evaluations (FCEs).   The \nlast evaluation was performed in January 2023.    The Claimant agreed that she can occasionally \n\nMoody – G409071 \n \n8 \n \nsquat,  crouch,  kneel,  bend,  climb  stairs,  and  stoop.    She  testified  that  she  gets  only  four  to  five \nhours of sleep each night.  Her husband does all the cooking.  The Claimant testified that prior to \nher  injury,  she  always  stayed  active  by  walking,  riding  bikes,  and  playing  basketball.  Also,  the \nClaimant testified that she and her husband always traveled, but she is unable to do so now.   \nAccording to the Claimant she gets up late because she is unable to sleep at night.  After \ntaking a shower, she is back on the couch.  She testified that she is able to sit for an hour before \nhaving to move around or lie down.   Her day entails walking through the house picking up stuff, \ntrying to help with the cleaning and watering her flowers.                 \n    The Claimant testified that she was fired because she was not at 100% and they do not have \nany light duty work.  According to the Claimant, after Dr. Baskin gave her limitations, they sent \nher a letter of termination.  She confirmed meeting with someone from Systemedic. However, after \nher  meeting  with  the  consultant  she  had  surgery  on  her  back,  which  caused  her  vocational \nrehabilitation to be put on hold.  She denied that the consultant provided her with any jobs that she \nneeded to apply for before her back surgery in the Arkadelphia/Hot Spring/Malvern area.  Nor did \nthe consultant provide the Claimant with a list of jobs that she needed to apply for after their second \nmeeting.  The Claimant confirmed that she has looked for work online.  The Claimant looked for \nwork at DHS as a family service worker.  The pay for that position ranges from $9.00 to $11.00 \nan hour.  However, the Claimant has not heard from anyone since putting in her application.  She \nconfirmed that this range of pay is significantly lower than what she was making at the Arkansas \nDepartment of Community Correction, which was $22.50 an hour.  The Claimant confirmed that \nif the Department of Correction contacts her with accommodations for her previous job, she would \ngo back to work for them if she could.           \n\nMoody – G409071 \n \n9 \n \n She confirmed that she worked for ADCC seven years after her accident.  The Claimant \nverified that she last worked for ADCC in 2021.  The Claimant agreed that it was not until after \nher surgeries that she was no longer able to  perform her job duties.  She stated that she worked \nthrough  all  of  her  pain  and  everything  because  she  did  not  want  to  get  fired.    According  to  the \nClaimant, she did not let them know how much pain she was in or how bad she was hurting for \nfear of being fired.  However, the Claimant was eventually fired.  \n On  cross-examination,  the  Claimant  confirmed  her  accident  date  was  October  30,  2014.  \nAt  that  point,  she  began  missing  work,  but  she  returned  to  work  on  November  17,  2014.    The \nClaimant  confirmed  her  signature  on  the  Form  S.    It  is  dated  December  9,  2014.    She  also \nconfirmed the Form AR-N.  Her signature is on this Form and is dated August 21, 2015. \n The Claimant confirmed her medications.  She admitted to taking Duloxetine (Cymbalta), \nwhich is an anxiety and depression, while working.  The Claimant began taking this medication in \n2019.    She  was  started  on  it  by  Dr.  Roman  after  one  of  her  surgeries.    She  confirmed  that  she \ncooperated and did what was asked of her when she underwent the FCE.  \n Under further questioning, the Claimant testified that she had to physically take down an \ninmate probably once a week.  She had to call for help if the inmate was in her office.  \n The  Claimant  provided  the  following  explanation  of  her  employment  duties  as  a \nParole/Probation Officer at the Department of Community Correction: \nQ How much time did you spend handling these inmates?    \nA Every day, all day.  That’s my job.  They come in the office and whatever needed \nto be done: home visits, you’re seein’ inmates, you’re going to court, you see inmates at \nthe jail, you may take ‘em to the jail.  So I worked eight hours and on-call so I saw inmates \nall the day -- all  -- every day, all day.       \n\nMoody – G409071 \n \n10 \n \nThe Claimant admitted that she also uses a computer every day.  She testified that there  \nwas no set thing she had to do as a Parole Officer.  According to the Claimant, she had to be able \nto multitask.  The Claimant testified that she had to use a computer all day, every day.  She also \nhad  a  laptop  that  she  used  to  take  notes  at  home.    Her  caseload  was  increased,  and  they  had  to \nperform drug tests and check to see if they were making payment on their fees. \n She  admitted  that  during  her  deposition,  she  testified  that  she  had  taken  trips  to  Texas.  \nHowever, the Claimant explained that this was probably before she had her surgeries.  She testified \nthat she does not take long trips since her surgeries.  The Claimant testified that Little Rock is too \nfar for her to travel, unless she is able to sit in the back seat, but that makes her nauseated. \n The Claimant was asked if during her January 18 meeting with vocational consultant that \nshe was not looking for work and nor was she interested in back to work.  Her reply was: “I don’t \nremember telling like that, no.”  The Claimant essentially testified that she was not sure if she \ncould do some kind of work until she attempts to do so.  She confirmed that the splints worn on \nher wrists were not prescribed by a medical doctor.                \n          Medical Evidence  \nOn April 7, 2016, the Claimant returned to Dr. Kenneth M. Rosenzweig for her back pain.  \nShe had been doing well with her medication as long as she did not over-exert herself.  At that \ntime,  the  Claimant  was in  no  real  pain  to  speak  of,  and  she  was  limiting  her  activities.    His \nimpression was “Satisfactory function status post motor vehicle accident with chronic pain.” Dr. \nRosenzweig opined the Claimant was functionally at MMI (maximum medical improvement).  In \nfact,  the  Claimant  had  been  back  at  work  and  doing  her  job  without  restrictions,  but  she  was \nrequiring some continued medical management to keep her functional.   \n\nMoody – G409071 \n \n11 \n \nThe  Claimant  underwent  an  independent  medical  evaluation  by  Dr.  Carlos  Roman, \nSeptember 4, 2018, for an injury that occurred in October 2014.  Her injury occurred while working \nfor the Department of Correction.  She reported having injured her back in a car wreck.  Since that \ntime,  the  Claimant  had  been  in  treatment.    At  time,  the  Claimant  had  increasing  radicular  pain \ndown her right leg, which had been her ongoing complaint since her injury.  The MRI of her lumbar \nspine was basically normal, except at the L5-S1 where that was broad-based, right paracentral disc \nprotrusion, which Dr. Roman related to her car accident.  At that time, Dr. Roman recommended \nthat the Claimant take Cymbalta for her injury symptoms and an epidural steroid injection per her \nrequest.  \nOn March 11, 2020, The Claimant returned to Dr. Roman for follow-up care of her chronic \nneck pain.  She was still having pain running down her arms and hands.  Dr. Roman looked at the \nClaimant’s MRI from a year ago.  She had a disc osteophyte, C6-C7 with some correlation to her \narm pain.  Dr. Roman also noted that the Claimant had a disc bulge at L5-S1 on the right side.  She \nalso had some radicular pain down her hip and leg that was amenable to an epidural injection about \neight to nine months ago.  Dr. Roman reported that they performed a cervical injection on January \n20, but it did not affect her symptoms even on a temporary basis.  At that time, the Claimant was \nstill up at night due to her arms and hands.  He did a Tinel’s test, and she had some mild tingling \nin the hand.  However, Dr. Roman sensed that the Claimant possibly had carpal tunnel syndrome.  \nTherefore,  he  did  want  to  do  a  second  epidural  injection.    Dr.  Roman  said  that  he  would  have \nexpected more response had her symptoms been coming from her cervical.  He told the Claimant \nthat he believed her complaint of numbness in the arm was predominantly coming from her median \nnerve in her hands.  Therefore, Dr. Roman ordered an EMG study to assess these complaints. \n\nMoody – G409071 \n \n12 \n \nDr.  Brent  Sprinkle  performed  an  EMG  with  NCV  on  April  8,  2020.    At  that  time,  Dr. \nSprinkle assessed the Claimant with carpal tunnel syndrome, bilateral upper limbs.  \nOn that same day, Dr. Roman saw the Claimant  in follow-up care of her  back  and neck \npain.  He noted that the Claimant had complaints of lumbar spine.  Per this clinic note, Dr. Roman \nstated  that  the  EMG  summary  did  not  show  any  diagnostic  evidence  of  cervical  radiculopathy, \nbranchial   plexopathy,   branchial   plexopathy,   peripheral   neuropathy,   or   focal   ulnar   nerve \nentrapment.  However, Dr. Roman opined that her symptoms correlated to carpal tunnel syndrome, \nfor which he performed carpal tunnel injections.  Dr. Roman’s Final Diagnoses were: “1.  Chronic \nlow back pain.  2.  Lumbar disc disease.  3. Cervical disc disease, C6-C7.  4. Lumbar radiculopathy, \nright L5 and S1.  5. Low back pain.  6. Lumbar spondylosis.  7. Long-term opiate use by way of \ntramadol.  8. opiate use by way of tramadol.  9. Carpal tunnel syndrome left and right sides.  10. \nNeck pain.” \nOn  August  5,  2020,  the  Claimant  presented  to  Dr.  Roman  for  continued  neck  and  back \npain.  She had increasing sciatic pain going down both hips and legs, which was greater  on the \nright at this time, but it tended to vary.  Dr. Roman stated that the Claimant had “classic sciatica.”  \nShe missed an appointment for an injection because she thought pain was getting better.  However, \nat that time it was worse, and she wanted to reschedule.   \nDr. Reza Shahim authored an Operative Report on October 26, 2021: \nPREOPERATIVE DIAGNOSIS: \nCervical stenosis at C6-C7. \n \nPOSTOPERATIVE DIAGNOSIS: \nSevere foraminal stenosis, bilateral C6-C7 with chronic radiculopathy. \n \nOPERATIVE PROCEDURES: \n \n1.  Anterior cervical fusion, C6-C7, partial corpectomy of C5, resection of osteophytes,  \n     anterior fusion with structural allograft, bone marrow aspirate from right iliac crest,  \n\nMoody – G409071 \n \n13 \n \n     anterior instrumentation with a K2, Stryker cervical plating at C6-C7. \n2.  Interpretation of localizing fluoroscopy and operation microscopy.   \n \nOn January 20, 2022 the Claimant was evaluated by Dr. Barry Baskins for an impairment  \nrating.  The Claimant’s chief  complaints  were neck pain, low back pain,  occasional left big toe \nnumbness, and occasional numbness in the right hand.  Specifically, Dr. Baskins wrote, in relevant \npart: \nREVIEW OF MEDICAL RECORDS:  ... Recent imaging in November 2021 revealed \nher to have postop changes at C6-C7 without radiographic evidence of hardware fracture, \nmild to moderate degenerative change at C5-C6. \n \nPHYSICAL EXAMINATION: This is a pleasant 5 feet 3 inches, 180-pound lady in no \napparent distress.  Vital signs stable, afebrile.  Her neuromuscular exam, cranial nerves are \notherwise negative.  She has Patrick’s test on the right, negative on the left.  Her strength \nis  5/5  throughout.    Examination  of  the  cervical  spine  reveals  a  well-healed  surgical  scar \nanteriorly.  She has good range of motion in the cervical spine.  Lumbar imaging studies \nrevealed lumbar degenerative changes primarily with moderate facet arthropathy at L3-L4, \nL4-L5  and  L5-S1.    Straight  leg  raise  is  negative.    Patrick’s test is negative.  Strength is \ngood.  Motor function is grossly intact.  Sensation is intact.  \n \nIMPRESSION: Ms. Moody [the Claimant] is a nice lady referred for impairment rating \nbased on an October 31, 2014, motor vehicle accident.  She underwent an anterior cervical \ndiscectomy and fusion with Dr. Shahim.  She does have some degenerative facet disease \nin the lumbar spine.  Imaging studies today ordered by me indicate multilevel degenerative \ndisc disease.  This was a lumbar spine x-ray and x-rays of her pelvis.  She has a right greater \nthan  left  sacroiliac  degenerative  changes.  Mild  bilateral  hip  osteoarthritis.    I  think  Ms. \nMoody is doing overall fairly well.   She is still having back pain and is under treatment \nwith Dr. Roman.  She has had a cervical fusion.  She is currently on FMLA. \n \nPLAN:   She  does  have  an  impairment  rating.    The  AMA  Guides  to  the  Evaluation  of \nPermanent Impairment 4\nth  \nEdition page 113 table 75 would give her an impairment rating \nof 9% to the whole person based on category IIe.  She does have degenerative facet disease \nin  the  lumbar  spine  which  is  probably  exacerbated  by  her  accident.  She  is  still  under \ntreatment for that.  I will see her in follow-up in about six weeks.  She has normal neuro \nexam.  She has some subjective left big toe numbness and Positive Patrick’s on the right \nside  of  uncertain  etiology.    She  does  have  some  hip  arthritis  which  is  unclear  as  to  the \netiology.  I will go ahead and give her an impairment rating. I look forward to seeing her \nback and appreciate the opportunity to assist in this nice lady’s care. \n \nAn MRI of the Claimant’s cervical spine without contrast was performed on February 10,  \n2022.  Dr. Samuel E. Edwards opined the following: \n\nMoody – G409071 \n \n14 \n \n IMPRESSION: \n 1.  ACDF at C6-7. \n 2.  Multilevel degenerative disc disease and facet arthropathy. \n 3.  Moderate to severe narrowing of the right neural foramen at C3-4. \n 4.  Moderate of severe narrowing of the left neural foramen at C5-6. \n 5.  Severe narrowing of the left neural foramen at C6-7. \n \n On that same day, the Claimant underwent an MRI of the lumbar spine without contrast.  \nDr. Edwards rendered the following IMPRESSION: “1.  Multilevel degenerative disc disease and \nfacet  arthropathy.    2.    Central/right  paracentral  disc  protrusion  at  L5-S1  contacts  and  slightly \ndisplaces the traversing right S1 nerve root.” \n The Claimant presented to Dr. Shahim on April 4, 2022, for follow-up evaluation of her \nspondylosis.  Cervical (spondylosis without myelopathy, cervical region) of the cervical spine.  Dr. \nShamin noted that he saw the Claimant on February 10, 2022, at which time she was prescribed \nMobic 7.5 mg tablets BID and was to take one tablet twice daily as needed.  Per this visit note, Dr. \nShahim referred the Claimant to a specialist.  Her pain intensity was: 5.0 5/10 pain.  Dr. Shamin \nnoted that the Claimant had undergone cervical fusion approximately six months ago.  He opined \nthat at that point, the Claimant was at maximum medical improvement (MMI) with regard to her \ncervical disc herniation. \n On April 11, 2022, the Claimant underwent an evaluation by Dr. Baskin.  At that time, the \nClaimant complained of pain in her neck.  Dr. Baskin wrote that he had looked at the Claimant’s \njob description, but he did not think she could resume her work.  He opined that the Claimant is \nnot able to do some of the essential job functions of a correctional officer.  Specifically, she would \nnot be able to use physical force sufficient to restrain when encountering life threating situations \nor able to use force safely and appropriately for self-protection and to protect other officers and \ncitizens when necessary.  He also stated that the Claimant would not be able to do all aspects of \nconducting  a  search  and  seizure  procedure.    This  included  subduing  and  placing  offenders  in \n\nMoody – G409071 \n \n15 \n \nhandcuffs and restraints.   He also stated that the Claimant is able to drive her own car, but she has \nlimited range of motion in her cervical spine on physical exam that day and on previous exams in \nall planes and in particular rotation.  This would place the Claimant at risk of having an accident.  \nDr. Baskin also believed the Claimant would be able to qualify for use of a full-sized handgun.  \nHis impression was that the Claimant was at maximum medical improvement.  Based on his review \nof the first rating, he wanted to clarify the rating for the cervical spine.  Dr. Baskin stated, “It was \ninitially 9% to the whole person, and in fact, I did not  notice she had a corpectomy as well as a \nsingle-level fusion, which would give her an additional 1% whole person impairment for a total of \n10%.”  He released the Claimant from his care.          \n Dr. Roman authored a clinic note on May 2, 2022.  The Claimant presented to Dr. Roman \na chief complaint of chronic low back pain.  The Claimant had earlier epidural injections in the \npast with good relief.  She reported some occasional pain in the left hip and left leg.  However, the \nClaimant stated that the rhizotomy done in February at L4-L5 and L5-S1 levels provided her with \nthe best pain relief she has had in many years.  The Claimant got 50 to 60% sustained relief, which \nmade a significant impact on her daily activities.  She was still having some pain going down the \nright shoulder and arm, but she did receive some relief with her surgery by Dr. Shahim in October \n2022.    The  Claimant  was  tolerating  things  at  that  point.    Dr.  Roman  did  not  recommend  any \ninterventional procedures.  He continued the Claimant’s medication regimen.         \n Per a clinic note dated May 31, 2022, Dr. Roman opined: \nShe is a Workers’ Compensation patient.    She  injured  her  back.    She  was  given  an \nimpairment rating for single level disc protrusion at the L5-S1 level, which works out to a \n5% whole person rating per page 113, Table 75 of the AMA Guidelines of Disability, the \nFourth Edition as utilized by the State of Arkansas.  I would agree with that assessment. It \nis correlative with her pain and the impairment rating is correct.   \n \nOn July 21, 2020, the Claimant underwent evaluation for her continued chronic back pain  \n \n\nMoody – G409071 \n \n16 \n \nby Dr. Shahim.  The Claimant had worsening acute chronic back pain with intermittent hip and \nleg pain.  Her hip and leg pain were progressively worsening, and unresponsive to conservative \nmanagement.    Dr.  Shahim  gave  the  Claimant  the  option  of  right  L5-S1  spinal  decompression \nsurgery with risk of residual weakness and numbness that may not improve.  Alternative to surgery \nincluded continuing with spinal injections, medications, and physical therapy.  He suggested the \nright  L5-S1  discectomy  since  the  Claimant  recently  failed  medication  activity  modification  and \nradiofrequency.  Dr. Shahim diagnosed the Claimant “low back pain.” \n The Claimant underwent a second lumbar spine surgery on September 6, 2022.  Dr. Shahim \nauthored a surgical report: \nPREOPERATIVE DIAGNOSIS: \nRight L5-S1disc herniation with radiculopathy, unresponsive to conservative management. \n \nPOSTPERATIVE DIAGNOSIS: \nRight L5-S1disc herniation with radiculopathy, unresponsive to conservative management. \n \nOPERATIVE PROCEDURES: \nLumbar microdiscectomy right L5-S1. \n          \n  \n             \n The Claimant underwent follow-up evaluation on September 22, 2022, with Dr. Shahim \ndue to her recent lumbar spine surgery.  His impression was “Status post lumbar decompression \nsurgery.”  The Claimant had moderate disc herniation at L5-S1, but she was doing better.  He had \na discussion with her of the possibility of taking non-steroids, but if her symptoms continued, she \nwould need to take oral steroids.   \n On September 26, 2022, the Claimant saw Dr. Roman stated that the Claimant was healing \nwell from her surgery.  However, the Claimant continued with leg pain that usually disappeared, \nbut  her  back  pain  was  a  little  persistent.  It appears that Dr. Roman continued the Claimant’s \nmedication regimen.  \n\nMoody – G409071 \n \n17 \n \n The  Claimant  continued  to  follow-up  with  Dr.  Roman  for  pain  management  of  her \ncompensable back and neck injuries.  \n On  December  19,  2022  Dr.  Shahim  evaluated  the  Claimant  due  to  her  neck  and  back \nsurgeries.  At that time, he discussed with the Claimant, her lumbar spondylosis degenerative disc \ndisease  and  potential  need  for  further  treatment  including  physical  therapy,  nonsteroid/spinal \ninjections in the future.   His impression was: \nPatient has a worked related injury resulting in cervical and lumbar disc  disease she has \nhad treatments at both levels and is doing failure well but she still has residual symptoms. \nI  have  suggested  she  get  assessed  by  rehab  medicine  for  functional  capacity  long-term \nrestrictions  and  permanent  impairment.    She  is  at  MMI  with  regard  to  her  cervical  and \nlumbar spine at this point, but she probably not quite ready to  return to work because of \npersistent  residual  symptoms.    I  suspect  she  will  need  to  have  therapy  rehabilitation  for \nreturning to work and is likely she will have residual symptoms and may require further \ntreatment in the future...  \n \nThe Claimant saw Dr. Baskin on December 19, 2022.   He stated that the Claimant had  \n \nbeen  rated  by  him  at  10%  for  the  cervical  surgery  and  additional  level.    Per  Dr.  Baskin,  for \nimpairment  purposes  the  Claimant  was  rated  using  the  AMA  Guides  to  the  Evaluation  of \nPermanent Impairment 4\nth\n Edition page 113, table 75.  She was rated under II category E.  This \nwould give her a 10% whole person impairment based on her lumbar spine injury and subsequent \nsurgery. Dr. Baskin specifically noted that this was for a surgically treated disc lesion with residual \nmedically  documented  pain  and  rigidity.    Using  the  combined  values  chart  on  page  322  of  the \nGuides, 10% rating to the cervical spine combined with 10% to her lumbar spine  would yield a \n19% whole person impairment rating.  Her total impairment was 19%.  Dr. Baskin declared the \nClaimant to be at MMI but stated that it was unlikely she would be able to go back to work.  He \nreleased the Claimant to a light duty physical demand category of work with a lifting up to thirty \npounds.  Dr. Baskin also noted that the Claimant did believe she could do that.  He documented \nongoing complaints of stiffness in the neck and lumbar spine, and palpable muscle spasm.           \n\nMoody – G409071 \n \n18 \n \nThe  Claimant  underwent  a  Functional  Capacity  Evaluation  (FCE)  on  January  10,  2023.  \nHer  results  from  this  evaluation  indicated  that  she  put  forth  a  reliable  effort,  with  50  of  52 \nconsistency  measures  with  expected  limits.  The  Claimant  demonstrated  the  ability  to  perform \nwork  with  functional  limitations  of  only  occasionally  lifting  up  to  25  pounds  and  lifting  and \ncarrying of 10 pounds on a frequent basis.   \nOn February 21, 2023, the Claimant saw Dr. Roman for follow-up pain management of her \ncompensable  injuries.    He  specified  that  her  back  surgeries  did  well  overall.    The  back  surgery \nresolved the radicular component. However, the Claimant was having some facet mediated pain \nacross the back, but it was tolerable.  The Claimant had increased her activities as far as her home \nexercise  program,  which  included  proper  stretching  protocol.    She  was  having  a  little  radicular \npain in her trapezial muscle line in her neck.   Dr. Roman noted that the Claimant’s last epidural \ninjection for her neck  was in 2020, but he would reinject her if and when the  intensity gets too \nsevere,  but  at  that  time Claimant  was  tolerating with  medications.    Her  average  pain  was  about \nfive out of 10.  Dr. Roman continued the Claimant’s medication regimen.  His final diagnoses were \n“1.  Cervical radiculopathy, C6-7.  2. Low back  pain.  3. Lumbar disc disease.  4.  Lumbar disc \ndisease.  5. Cervical disc disease.  6. Lumbar spondylosis.  7. Lumbar decompressive surgery, L5-\nS1.  8. Cervical spondylosis.”       \nThe Respondents submitted documentary evidence, which included a Form AR-N.  It was    \non August 21, 2015.  Per this report, the Claimant reported having injured her neck and lumbar \nspine on October 30, 2014.  She was a passenger in the back seat of a car when they were struck \nfrom behind. \nOn May 26, 2022, the Respondents wrote a letter to the Claimant’s attorney informing \nthem that they were accepting the 10% rating. \n\nMoody – G409071 \n \n19 \n \nThe Claimant underwent a Vocational Rehabilitation Initial Evaluation on July 19, 2022.  \nThe vocational rehabilitation consultant performing this evaluation was Keondra Hampton, MS, \nCRC.  Ms. Hampton authored a report summary on July 20, 2022.  The consultant noted that the \nClaimant was not sure she could perform any tasks required of a job.  However, the Claimant was \nagreeable  to  collaborating  with  Ms.  Hampton  in  the  job  search/return-to-work  process  and  was \nopen to exploring any and all opportunities available.  During the meeting,  Ms. Hampton noted \nthat she observed the Claimant using a brace for her right and left wrists. The Claimant reported \nusing  a  compression  sleeve  for  her  right  arm.    Both  devices  were  purchased  at  Walmart.    The \nClaimant  alternated  between  sitting,  standing,  and  walking.    The  Claimant  reported  to  Ms. \nHampton that when she is in pain, she must adjust to different positions for relief.  Her level of \ndaily  activity  was  low  due  to  pain.    The  Claimant  declined  retraining  because  she  is  close  to \nretirement and does not wish to deepen her financial debt.  However, the Claimant did express an \ninterest in seeing what sedentary jobs are available in her area to pursue.  The vocational specialist \ntold  the  Claimant  that  she  would  move  forward  with  the  process  for  finding  a  job  within  the \nClaimant’s restrictions and help with any online job applications.  \nPer  a  report  dated  February  27,  2023,  the  Claimant  visited Ms. Hampton’s office on \nJanuary 18, 2023, for further evaluation and help in the job search process.  Ms. Hampton stated \nthat the Claimant was cooperative with the return-to-work efforts.  The Claimant reported that she \ndid not want to waste Ms. Hampton’s time because she believed she was not capable of returning \nto  work  due  to  the  constant  pain  and  discomfort.    At  that  time,  the  vocational  consultant \nrecommended that the Claimant’s case be closed because she had chosen to discontinue vocational \nrehabilitation services at that time.                     \n                   Adjudication \n\nMoody – G409071 \n \n20 \n \nA. Wage Loss Disability \nHere, the Claimant has asserted her entitlement to wage loss disability over and above her   \ncombined 19% impairment rating for her compensable back and neck injuries of October 30, 2014.   \n            When  considering  claims  for  permanent  partial  disability  benefits  in  excess  of  the \nemployee's   percentage   of   permanent   physical   impairment,   the Workers’  Compensation \nCommission  may  take  into  account,  in  addition  to  the  percentage  of  permanent  physical \nimpairment,  such  factors  as  the  employee's  age,  education,  work  experience,  and  other  matters \nreasonably expected to affect her future earning capacity.  Ark. Code Ann. § 11-9-522(b)(1).  In \nconsidering  factors  that  may  affect  an  employee's  future  earning  capacity,  the  appellate  court \nconsiders the Claimant's motivation to return to work, since a lack of interest or a negative attitude \nimpedes an assessment of the Claimant's loss of earning capacity.  Ellison v. Therma Tru, 71 Ark. \nApp. 410, 30 S.W.3d 769 (2000). \nThe Claimant is 57 years of age.  She worked as a Parole/Probation Officer for ADCC for  \nover fifteen years.  All her primary work experience is in law enforcement.  The Claimant has a \ncollege degree.  On October 30, 2014, the Claimant sustained significant injuries to her neck and \nback in a work-related MVA.  She was a passenger in the back seat of a vehicle when they were \nrear-ended  by  another  vehicle.    Subsequently,  the  Claimant  underwent  substantial  conservative \nmedical treatment for her injuries, including various medications, physical therapy, and epidural \nsteroid injections.  The Claimant has treated and been evaluated by several specialists, including \nDrs. Rosenzweig, Shahim, Baskin, and Roman. \nOn October 26, 2021, the Claimant underwent a C6-C7 anterior cervical discectomy and \nfusion, with partial C5 corpectomy.  Dr. Shahim performed this surgery.  Following her surgery, \nthe Claimant underwent physical therapy and continues on a pain medication regimen.  She has \n\nMoody – G409071 \n \n21 \n \nmedically documented problems with her right arm and wears a brace occasionally.  The Claimant \nalso has restricted range of motion in her neck that affects her ability to drive.     \n For  her  back  injury,  the  Claimant  underwent  physical  therapy  and  injections  with  little \nrelief of her symptoms.  On September 6, 2022, Dr. Shahim performed decompressive surgery at \nthe L5-S1 level.  The Claimant did well with her surgery but continued to have leg pain.      \n On December 19, 2022 Dr. Baskin assessed the Claimant with a combined value rating of \n19% for neck and back injuries of October 2014.  The Respondents have accepted this rating.  Dr. \nBaskin placed the Claimant to be at MMI for her cervical spine and lumbar spine injuries.  The \nClaimant continues to see Dr. Roman for pain management of her injuries.         \n The Claimant testified that she is significantly limited in her daily activities of living due \nto her neck and back injuries of October 30, 2014.  I found the Claimant to be very credible.  Her \nhusband does all of the cooking.  She is no longer able to engage in her prior hobbies, including \nwalking, bike riding, and basketball.  The Claimant takes several medications for her compensable \ninjuries as outlined above.  One of her medications causes her to have some memory loss.  The \nClaimant underwent an FCE with reliable results on January 10, 2023.  She has the physical ability \nto  perform  light  duty  work.    She  can  no  longer  work  in  law  enforcement  due  to  her  physical \nrestrictions and limitations.   \nThe Claimant worked for the Arkansas Department of Community Correction seven years \nafter her accident in October 2014.  However, ADCC ultimately had to fire the Claimant due to \nher physical restrictions resulting from her October 2014 work injury.  Her hourly rate of pay was \n$22.50.  She has looked for work within her restrictions at DHS, with the Division of Children and \nFamily Services.  These positions have a salary range of $9.00 to $11.00 an hour.                      \n\nMoody – G409071 \n \n22 \n \n Based on my review of the evidence, including the Claimant’s credible testimony, and \nwhen   considering   her   advanced   age,   education,   prior   work   experience   primarily   in   law \nenforcement,  the  nature  and  extent  of  her  injuries,  the  combined  value  of  a  19%  permanent \nanatomical  impairment  to  the  body  as  a  whole  for  her  back  and  neck  injuries,  her  restricted \nactivities of daily living, her ability to perform only light duty work, considering the fact that she \nwill not be able to return to work in law enforcement, and all other relevant  matters reasonably \nexpected  to  affect  her  future  earning  capacity,  I  find  that  the  Claimant  has  proven  by  a \npreponderance of the evidence that she sustained a 24%  wage-loss earning capacity in excess of \nher combined 19% permanent anatomical impairment to the body as a whole for her compensable \nback and neck injuries of October 30, 2014.        \nB. Controverted Attorney’s Fee \nIt is undisputed that the Respondents have controverted this claim for additional benefits as \nevidenced by their stipulation to conversion.  Therefore, pursuant to Ark. Code Ann. §11-9-715 \n(Repl. 2012), the Claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity \nbenefits awarded herein.  \nAWARD \nThe Respondents are directed to pay benefits in  accordance with the  findings of fact set \nforth herein this Opinion.  \nAll accrued sums shall be paid in lump sum without discount, and this  award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809 (Repl. 2012).   See Couch \nv. First State Bank of Newport, 49 Ark. App. 102, 898 S.W. 2d 57 (1995).  \n\nMoody – G409071 \n \n23 \n \nPursuant to Ark. Code Ann. §11-9-715 (Repl. 2012), the Claimant's attorney is entitled to \na 25% attorney's fee on the indemnity benefits awarded herein.  This fee is to be paid one-half by \nthe carrier and one-half by the Claimant.  \nAll  issues  not  addressed  herein  are  expressly  reserved  under  the Arkansas  Workers’ \nCompensation Act. \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          HON. CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE","textLength":46548,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: G409071 RUBY MOODY, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF COMMUNITY CORRECTION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT OPINION FILED JUNE 23, 2023 Hearing held before ADMINISTRATIVE LAW J U...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["cervical","lumbar","neck","back","hip","carpal tunnel","fracture","shoulder"],"fetchedAt":"2026-05-19T23:06:44.516Z"},{"id":"full_commission-G804085-2023-06-22","awccNumber":"G804085","decisionDate":"2023-06-22","decisionYear":2023,"opinionType":"full_commission","claimantName":"Lisa Sowell","employerName":"Evergreen Packaging, LLC","title":"SOWELL VS. EVERGREEN PACKAGING, LLC AWCC# G804085 JUNE 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Sowell_Lisa_G804085_20230622.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Sowell_Lisa_G804085_20230622.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G804085 \n \nLISA SOWELL, \nEMPLOYEE \n \nCLAIMANT \nEVERGREEN PACKAGING, LLC,  \nEMPLOYER \n \nRESPONDENT \nACE AMERICAN INSURANCE COMPANY/ \nGALLAGHER BASSETT SERVICES, INC., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 22, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LARRY J. STEELE, Attorney at \nLaw, Walnut Ridge, Arkansas. \n \nRespondents represented by the HONORABLE WILLIAM C. FRYE, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJanuary 10, 2023.  The administrative law judge found that the Arkansas \nWorkers’ Compensation Act was constitutional.  The administrative law \njudge found that the claimant failed to prove she was entitled to additional \nmedical treatment, and that the claimant failed to prove she was \npermanently totally disabled.  After reviewing the entire record de novo, the \nFull Commission finds that the claimant’s statutory change of physician has \nbeen nullified, so that the claimant is entitled to another change of \nphysician.  We find that the claimant did not prove she was permanently \n\nSOWELL - G804085  2\n  \n \n \ntotally disabled.  The claimant did not prove that the Arkansas Workers’ \nCompensation Act was unconstitutional.     \nI.  HISTORY \n Lisa Michelle Sowell, now age 56, testified that she attended college \nfor one year after graduating from high school.  Ms. Sowell testified that she \nwas subsequently employed with Tyson Foods for 17 years.  The claimant \ntestified that she also worked for Century Tube, in housekeeping, for \napproximately five years.   \nThe claimant testified that she became employed with the \nrespondents, then known as International Paper, on or about September \n15, 2003.  The claimant testified that she worked for the respondents as a \n“Processor,” which duties required unloading railcars and cleaning.  After \nseveral years of this employment, the claimant began unloading “clamp \ntrucks” for the respondents.  The claimant testified that she became a \nService Operator for the respondents in 2018.          \nThe parties stipulated that the claimant “sustained a compensable \ninjury to her low back” on or about May 31, 2018.  The claimant testified \nthat she slipped on a set of stairs in the workplace and fell.  According to \nthe record, an MRI of the claimant’s lumbar spine was taken on June 15, \n2018 with the impression, “Left neural foraminal zone disc protrusions at \nL3-L4 and L4-L5 without neural foraminal narrowing.” \n\nSOWELL - G804085  3\n  \n \n \nDr. Timothee Wilkin noted on July 2, 2018, “Patient here today for f/u \non fall at work approx. 6/2.  She had back pain, was seen at JRMC ER, \nthen followed up at our clinic following that.  Patient reports that she has not \nbeen back to work due to too many restrictions.”  Dr. Wilkin assessed \n“Cervical pain,” “Prolapse of lumbar intervertebral disc without \nradiculopathy,” and “Low back pain.”  Dr. Wilkin advised the claimant to \nfollow up with Dr. Victor Vargas, and he stated, “There is no way to connect \nneck pain to her fall on 6/2.”     \nDr. Vargas provided an Initial Evaluation on July 9, 2018: \nMs. Sowell is a 51 year old female who presents to my clinic \nfor the first time.  The patient has been referred by the \nWorker’s Comp carrier to have an evaluation of the back pain \nand hip pain.   \nThe patient claimed having an injury when she fell down \nstairs.   \nShe presents with pain and numbness on the left side.  She \nstates that the symptoms have been acute traumatic and \nbegan 4 to 5 weeks ago.  She indicates the injury occurred at \nwork.  She is on Worker’s Comp.  The accident occurred on \n05/31/2018....The patient indicates that the pain is located in \nthe lower back on the left side.... \nShe has returned to work with limitations.  The patient brought \nMRI report of lumbar spine that showed left neuroforaminal \nsound disc protrusion at L3-L4 and L4-L5 without neural \nimpingement.  No evidence of fractures.  No actual images \nare available.... \n \n Dr. Vargas assessed “Low back pain.  Contusion of the lower back.  \nPossible strain of the lower back.  The patient also had numbness of \nunknown origin.  Degenerative changes at L3 L4, L4 L5 with foraminal \n\nSOWELL - G804085  4\n  \n \n \nnarrowing without evidence of neural impingement.  No focal disc herniation \nor acute events.”   \n Dr. Vargas’ treatment plan on July 9, 2018 included physical therapy \nand medication.  Dr. Vargas stated, “Patient will be on light duty with no \nlifting or pushing more than 5 pounds and no lifting over.”  The claimant \ntestified on direct examination: \nQ.  Did you ask for an accommodation from Evergreen?  Did \nyou write a letter asking them to give you a job that you could \ndo? \nA.  Yes, I did.   \nQ.  And did they give you a job? \nA.  No, they didn’t.   \n \n The claimant was provided physical therapy visits beginning July 13, \n2018.  The claimant testified on cross-examination that she did not benefit \nfrom physical therapy.     \n The claimant followed up with Dr. Vargas on August 6, 2018:  “I have \nreviewed the report from physical therapy (10 15 sessions) that showed that \nshe has improvement of the constant cramping and tightness of the lower \nback and mid lower back, continues complaining of low back pain and \nbuttock pain....Patient brought MRI of the lumbar spine dated June 15, \n2018 and had reviewed the images.  Essentially what the radiologist \ndescribed.  The patient had multilevel degeneration of the disks which is \nmild with some mild protrusion at different levels were assessed to be more \npronounced at L4 L5 with some mild foraminal narrowing but no \n\nSOWELL - G804085  5\n  \n \n \nneurological compromise.  There is also facet arthropathy L4 L5 with some \nmild effusion on the right side secondary to degenerative osteoarthritis of \nthe joint.  Definitely no evidence of fractures, anterolisthesis or \nspondylolisthesis, no focal disc herniation.”   \n Dr. Vargas’ treatment plan on August 6, 2018 included continued \nconservative modalities, additional diagnostic testing, and light work duty.  \nDr. Brent Sprinkle performed electrodiagnostic testing on August 23, 2018 \nand gave the following interpretation:  “No electrodiagnostic evidence of a \nlumbar radiculopathy, peripheral neuropathy, or focal tibial or peroneal \nnerve entrapment is seen in the extremity tested today.  Additional L2-3 \nmuscles were screened and were normal due to thigh complaints, no focal \nlateral femoral cutaneous sensory loss was seen on physical exam.”   \n Dr. Brent Walker performed lumbar injections on September 18, \n2018.  The claimant testified regarding Dr. Walker’s treatment, “I felt good \nfor about seven days.  Then I started feeling the pain coming back after that \nseven days.”     \n Dr. Vargas reported on October 4, 2018: \nThe patient has been treated for 4 months with different \nmodalities for the low back pain without specific objective \nfinding of injury to the lumbar spine.   \nAt this point I am considering that the patient has exhausted \nthe conservative treatment for her lower back pain and the \npatient has reached maximum medical improvement and is \ntoday.   \n\nSOWELL - G804085  6\n  \n \n \nThe patient will be released to work full duty but she stated \nthat she is unable to work therefore in order to have objective \nfindings and recommended to have functional capacity \nevaluation.... \nThe patient is entitled to 0% permanent impairment in regards \nof her lower back pain.... \n \n The claimant participated in a Functional Capacity Evaluation on \nOctober 15, 2018:  “The results of this evaluation indicate that an unreliable \neffort was put forth, with 14 of 50 consistency measures within expected \nlimits....Ms. Sowell completed functional testing on this date with unreliable \nresults.  Overall, Ms. Sowell demonstrated the ability to perform work in at \nleast the SEDENTARY classification of work[.]”   \n Dr. Vargas noted on October 22, 2018: \nThe functional capacity evaluation was requested for the \npurpose to understand patient’s limitation for work. \nThe functional capacity evaluation was reported with \nunreliable results.  The results indicated that unreliable effort \nwas put forth with inconsistencies found on 14 out of 50 \nmeasurements.  This indicates that the patient did not put \nconsistent effort.   \nConsequently, the actual functional capacity of the patient is \nunknown and her actual abilities could be higher than the \ndemonstrated at the tests. \nTherefore, I am considering that the patient can work on full \nduty without restrictions.   \n \n The claimant was deposed on February 11, 2019.  At that time, the \nclaimant testified that she had previously worked as a Service Operator for \nthe respondents for approximately four years.  The claimant testified that \nthe Service Operator position included a variety of work responsibilities, \n\nSOWELL - G804085  7\n  \n \n \nincluding the “extruder wrap line” job.  The claimant testified that “extruder” \nwork was physically difficult.  The claimant testified that she had not treated \nwith a physician since Dr. Vargas’ release in October 2018.  The \nrespondents’ attorney examined the claimant: \n  Q.  What are you going to do next as far as a job? \nA.  I mean, hurting like I do, I don’t think I’m going to be able \nto do another job.  So the only thing I can do is to try to apply \nfor my disability.   \nQ.  So you’re planning on filing for Social Security? \nA.  Right, I mean yes.... \nQ.  Would you be able to drive to work if there was a light duty \njob? \nA.  Yes, I could drive that far.   \nQ.  Well, if you had to get up and file all day, do you think you \ncould do that on your feet? \nA.  Well, see, that wouldn’t be constantly because I could file, \nyou know, sitting down and I could stand a little bit, you know, \nrotate it out if I started hurting.   \n \n The record contains a Change of Physician Order dated June 7, \n2019:  “A change of physician is hereby approved by the Arkansas \nWorkers’ Compensation Commission for Lisa Sowell to change from Dr. \nVictor Vargas to Dr. Noojan Kazemi[.]” \n Stephanie Whaley, a Certified Case Manager, corresponded with the \nrespondents’ attorney and several other individuals on July 31, 2019: \nI wanted to let you know Dr. Kazemi’s office canceled Ms. \nSowell’s appointment for this morning due to an out of date \nMRI.  I was told Ms. Sowell would reschedule once the MRI \nhad been done.  I reached out to the claimant attorney on file, \nLaura Beth York, who informed she was no longer \nrepresenting Ms. Sowell and had closed her file in March.  I \nhave not contacted Ms. Sowell as Karen Cates advised no \n\nSOWELL - G804085  8\n  \n \n \ncontact back in January.  Would you like me to reach out to \nher to see if she would even speak with me?  Thanks so \nmuch! \n \n On August 5, 2019, the respondents’ attorney corresponded with \ncounsel for the Commission’s Medical Cost Containment Division:  “Eli:  \nYou set up the change of physician with Dr. Kazemi.  He cancelled the \nappointment and said he would not see the claimant without another MRI.  \nWe are not going to authorize the another (sic) MRI as being reasonable \nand necessary.  I don’t believe we are required to pay for diagnostic studies \nas part of the first time visit.  We did provide Dr. Kazemi with the first MRI \nwhich we paid for as part of the work up on the claimant.” \n   On August 26, 2019, the claimant filed a COMPLAINT in the United \nStates District Court for the Eastern District of Arkansas, Pine Bluff Division.  \nThe claimant contended that the respondents had discriminated against her \nunder the Americans with Disabilities Act and the Arkansas Civil Rights Act \nof 1993.   \n An MRI was performed at Jefferson Regional Medical Center on \nSeptember 18, 2019 and was compared with the MRI taken June 15, 2018.  \nThe following impression resulted:  “1.  No compression fractures.  2.  Mild \ndegenerative disc disease at L3-4 and L4-5.  No spinal canal or neural \nforaminal narrowing at any level.” \n The claimant testified on direct examination: \n\nSOWELL - G804085  9\n  \n \n \nQ.  And what caused you to have an MRI at Jefferson \nRegional Medical Center in 2019, a month before the \naccident, auto accident? \nA.  It was for Social Security.   \n \n Dr. Jason Smith reported on or about September 19, 2019: \nThis is a 52 year old Female patient.  The patient returns \nhaving had MRI scan of the lumbar and cervical spine.  The \ncervical spine shows multilevel degenerative disc disease, but \nno significant central canal stenosis or foraminal narrowing.  \nThe lumbar spine actually looks fairly benign.  There is a left \nintraforaminal disc bulge at L3-4 which does correlate with her \nleft anterior thigh pain, but it only causes minimal stenosis, \nand no obvious neural compression.... \nUnfortunately, I do not have much to offer her.  I \nrecommended that she look into joining the aquatics facility \nand start walking in water and doing water aerobics.  This \nmay help her.  I talked with her about considering bariatric \nsurgery.  I told her I think she should check it out online, and if \nshe is interested to discuss it with her primary care physician.  \nShe will follow up with me on an as needed basis.   \n \n Dr. Smith diagnosed “1.  Cervical spondylosis” and “2.  Lumbar \nradiculopathy, chronic.”     \n On November 11, 2019, the claimant received emergency medical \ntreatment after a motor vehicle accident.  The discharge diagnosis was \n“MVC (motor vehicle collision):  Strain of lumbar region.”  An x-ray of the \nclaimant’s lumbar spine was taken on November 11, 2019 with the \nimpression, “1.  Unremarkable radiographic evaluation of the lumbar spine.”   \n The claimant received a series of visits at Liberty Chiropractic \nbeginning December 13, 2019.  The claimant presented to Pain Treatment \n\nSOWELL - G804085  10\n  \n \n \nCenters of America on March 5, 2020, at which time Dr. Sameer Jain \nperformed a lumbar medial branch block.     \nThe claimant was deposed on May 13, 2020 pursuant to the \nclaimant’s complaint filed in the United States District Court.  An attorney \nexamined the claimant: \nQ.  And since you have left Evergreen, you have not worked \nanywhere? \n A.  No. \n Q.  Have you applied to work anywhere? \n A.  No. \nQ.  Did you ever contact any other employers to ask about \njobs? \n A.  No.   \nQ.  Did you – and why have you not sought other \nemployment? \nA.  Because, I mean, it’s – who would hire me?  I can’t do \nanything.  I mean, it’s – everything I do is limited, everything.  \nAnd if I would go for another job, I mean, they are not going to \naccept me the way I am.   \nQ.  What about a desk job, have you applied for any of those? \nA.  No.   \nQ.  And why not? \nA.  Because of a desk job you are still going to have to be \nwalking, standing.  You are going to have to do lifting.  I can’t \ndo all of that.   \nQ.  Okay.  So you can’t even do a desk job.  Is that what you \nare telling me? \nA.  No. \nQ.  No, you can’t? \nA.  No, ma’am.   \nQ.  Have you applied for disability? \nA.  Yes, ma’am. \nQ.  Social Security disability? \nA.  Yes, ma’am.   \nQ.  And have you been accepted? \nA.  Not yet.   \nQ.  When did you apply? \n\nSOWELL - G804085  11\n  \n \n \nA.  It was last year.  I think it was in May of last year.   \n \n Eli Singer, Staff Attorney, Medical Cost Containment Division, \ncorresponded with the parties on June 25, 2020: \nWe received a request from the claimant’s attorney, Mr. \nSteele, in the above-referenced claim for a copy of MCCD’s \nnotes regarding the Change of Physician request processed \nin the Summer of 2019 and an email from the respondent \nattorney, Mr. Frye, expressing that the respondents would not \nauthorize another MRI.  The COP notes are attached.  The \nemail is below.   \n \n The respondents’ attorney subsequently informed Eli Singer on June \n25, 2020, “I got a call from Stephanie Whaley who was the case manager \nthat the doctor would not see the claimant without MRI.  The appointment \nwas cancelled by us but not by the clinic.  I then contacted the \nCommission.”     \nThe parties deposed Dr. Vargas on April 2, 2021.  The claimant’s \nattorney examined Dr. Vargas in part: \nQ.  Do you agree that a functional capacity exam can neither \nprove nor disprove claims of disability, pain, nor do they \nnecessarily present a true picture?  For example, in cases of \nfibromyalgia, when symptoms are known to wax and wane? \nA.  The functional capacity evaluation is used to determine if \nthe patient can return to work and what kind of ability the \npatient can do.  And that’s why we use the FCE, and that is a \nstandard test to provide reliability. \n \n A pre-hearing order was filed on August 3, 2022.  The claimant \ncontended, “Claimant, employee, Lisa Sowell contends she is permanently \ntotally disabled due to lack of care and treatment which was denied by \n\nSOWELL - G804085  12\n  \n \n \nEvergreen Packaging and Ace American Ins. Co./ESIS, Inc. under the \nArkansas Workers’ Compensation law for a work-related injury, falling down \nstairs at work.”   \n The respondents contended, “The Claimant sustained a \ncompensable back injury.  She was treated by Dr. Vargas.  The Claimant \nunderwent numerous diagnostic studies with (sic) were normal.  The \nClaimant underwent a (sic) FCE and only passed 14 of 50 test (sic) and the \nresult were (sic) unreliable.  The Claimant was then released by Dr. Vargas \nwithout restrictions and no impairment.  The Claimant then requested a \nchange of physician to Dr. Kazemi.  Dr. Kazemi refused to see the Claimant \nwithout a new MRI.  The Respondents refused to order a second MRI.  The \nchange of physician requirements are that the Respondents do not have to \npay for additional studies as part of the first exam.  Dr. Vargas also testified \nthat the Claimant did not need another MRI.  Subsequent to this, the \nClaimant was involved in a motor vehicle accident and injured her low back.  \nShe settled this case for $25,000.00.  The deposition of the treating \nphysician Dr. Vargas by Claimant’s counsel.  Dr. Vargas testified that the \nclaimant had degenerative changes.  He testified on impairment that he \nfound no objective finding of any injury.  He also said he released the \nClaimant with no restrictions due to invalid FCE.  The Claimant has also \nlisted violations of the 14th Amendment to the Constitution.  The contention \n\nSOWELL - G804085  13\n  \n \n \nis outside the jurisdiction of the Commission.  The Claimant has also not \nlisted any relief sought for this violation.”   \n The parties agreed to litigate the following issues: \n1.  Whether the Arkansas Workers’ Compensation Act is \nunconstitutional due to denial of due process and equal \nprotection under the 14\nth\n Amendment of the United States \nConstitution because the Claimant was denied an updated \nMRI and was, thus, was unable to treat with her choice of \nphysician.   \n2.  Whether the Claimant is entitled to additional medical \ntreatment (including medication and physical therapy) for \nher compensable low back injury.   \n3.  Whether the claimant is entitled to permanent total \ndisability benefits.   \n4.  Attorney’s fee.   \n \nAfter a hearing, an administrative law judge filed an opinion on \nJanuary 10, 2023.  The administrative law judge found, among other things, \nthat the Arkansas Workers’ Compensation Act was constitutional.  The \nadministrative law judge found that the claimant did not prove she was \nentitled to additional medical treatment, and that the claimant did not prove \nshe was permanently totally disabled.  The claimant appeals to the Full \nCommission. \nII.  ADJUDICATION \nA.   Medical Treatment \nThe employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \n\nSOWELL - G804085  14\n  \n \n \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2002).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). \nAn administrative law judge found in the present matter, “5.  That the \nclaimant has failed to satisfy the required burden of proof to show that she \nis entitled to an additional medical treatment, specifically an additional MRI \nand physical therapy.”  Based on the current record, the Full Commission \nfinds that the claimant did not prove additional medical treatment or \nadditional diagnostic testing was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  However, we find that the \nclaimant proved she was entitled to another change of physician request.   \nThe parties stipulated that the claimant “sustained a compensable \ninjury to her low back” on or about May 31, 2018.  The record does not \nshow that the claimant sustained a compensable injury to any anatomic \nregion other than her low back.  An MRI of the claimant’s lumbar spine on \nJune 15, 2018 indicated that there were “foraminal zone disc protrusions” at \n\nSOWELL - G804085  15\n  \n \n \nL3-L4 and L4-L5.  No examining or treating physician has opined that the \nclaimant is a candidate for surgery as a result of her compensable injury.  \nDr. Wilkin assessed “Low back pain” on July 2, 2018 and referred the \nclaimant to Dr. Vargas.  Dr. Vargas began treating the claimant \nconservatively on July 9, 2018.  Dr. Vargas specifically recommended \nphysical therapy and medication.  The claimant was provided physical \ntherapy visits beginning July 13, 2018, but the claimant testified that she \nreceived no benefit from physical therapy.  Dr. Walker performed injection \ntreatment on September 18, 2018, but the claimant testified that she \nreceived only temporary relief from Dr. Walker’s treatment.  Dr. Vargas \nopined on October 4, 2018 that the claimant had reached maximum \nmedical improvement.   \nThe Full Commission recognizes that an employee may be entitled \nto reasonably necessary medical treatment after the end of her healing \nperiod.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.2d 31 \n(2004).  In the present matter, there are currently no recommendations for \nadditional medical treatment which could be interpreted as being causally \nrelated to the May 31, 2018 compensable injury.   \nAs we have noted, however, the record contains a Change of \nPhysician Order dated June 7, 2019:  “A change of physician is hereby \napproved by the Arkansas Workers’ Compensation Commission for Lisa \n\nSOWELL - G804085  16\n  \n \n \nSowell to change from Dr. Victor Vargas to Dr. Noozan Kazemi[.]”  A case \nmanager notified the respondents’ attorney on July 31, 2019, “I wanted to \nlet you know Dr. Kazemi’s office canceled Ms. Sowell’s appointment for this \nmorning due to an out of date MRI.  I was told Ms. Sowell would reschedule \nonce the MRI had been done.”  The respondents’ attorney informed the \nCommission’s Medical Cost Containment Division on August 5, 2019 that \nthe respondents would not authorize another MRI before the claimant saw \nDr. Kazemi.  The claimant was therefore not able to see or treat with Dr. \nKazemi, because of Dr. Kazemi’s apparent unwillingness to examine the \nclaimant before additional diagnostic was performed.     \nThe employer has the right to select the initial treating physician.  \nArk. Code Ann. §11-9-514(a)(3)(A)(i)(Repl. 2012).  An employee may \nrequest a one-time change of physician.  Ark. Code Ann. §11-9-\n514(a)(2)(A)(Repl. 2012).  When a claimant seeks a change of physician, \nshe must petition the Commission for approval.  Stephenson v. Tyson \nFoods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000).  When an employee \nhas exercised her absolute, statutory right to a one-time change of \nphysician, the respondents must pay for the initial visit to the new physician \nin order to fulfill their obligation to provide reasonably necessary medical \ntreatment.  Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d \n153 (2003).  Nevertheless, the Full Commission is unaware of any statutory \n\nSOWELL - G804085  17\n  \n \n \nauthority or appellate precedent which requires a respondent to authorize \ndiagnostic testing before an employee sees the new physician. \nBecause Dr. Kazemi refused to visit the claimant without a new MRI, \nthe Full Commission finds in the present matter that the claimant’s change \nof physician request was essentially nullified.  We therefore find that the \nclaimant is entitled to another statutory change of physician request.  See \nWal-Mart Associates, Inc. v. Keys, 2012 Ark. App. 559, 423 S.W.3d 683.  If \nthe claimant still desires a statutory change of physician, then we direct her \nto promptly contact the Commission’s Medical Cost Containment Division.  \nThe respondents will be liable for at least the initial visit with the new \nphysician but shall not be required to authorize treatment or diagnostic \ntesting before the claimant sees the physician.    \nB.   Permanent Total Disability \nArk. Code Ann. §11-9-519(Repl. 2012) provides, in pertinent part: \n(e)(1)  “Permanent total disability” means inability, because of \ncompensable injury or occupational disease, to earn any \nmeaningful wages in the same or other employment.   \n(2)  The burden of proof shall be on the employee to prove \ninability to earn any meaningful wages in the same or other \nemployment.   \n \n An administrative law judge found in the present matter, “5.  That the \nclaimant has failed to satisfy the required burden of proof to show that she \nis entitled to permanent total disability benefits.”  The Full Commission \naffirms this finding.  The claimant, age 56, is advancing in age but is not \n\nSOWELL - G804085  18\n  \n \n \nelderly.  The claimant attended college for one year following high school.  \nThe claimant has a varied and stable work history, being previously \nemployed at Tyson for 17 years and Century Tube for five years.  The \nclaimant became employed with the respondents in 2003.  The claimant \nworked in several different positions for the respondents over the years, \nand the claimant’s testimony indicated that her employment with the \nrespondents occasionally required manual labor.   \n The parties stipulated that the claimant sustained a compensable \ninjury to her low back on May 31, 2018.  The claimant slipped and fell on a \nset of stairs in the workplace.  An MRI taken June 15, 2018 showed lumbar \nprotrusions, but the claimant has never been a candidate for surgery.  The \nrecord indicates that the claimant chose not to return to work for the \nrespondents following the compensable injury.  After several months of \nappropriate conservative treatment, Dr. Vargas released the claimant to full \nduty with 0% permanent anatomical impairment on October 4, 2018.  The \nclaimant gave “unreliable effort” during a Functional Capacity Evaluation on \nOctober 15, 2018.  It was concluded, “Overall, Ms. Sowell demonstrated the \nability to perform work in at least the SEDENTARY classification of work[.]”  \nThe Arkansas Workers’ Compensation Commission is not bound by \ntechnical rules of evidence but is directed to conduct the hearing “in a \nmanner as will best ascertain the rights of the parties.”  Ark. Code Ann. §11-\n\nSOWELL - G804085  19\n  \n \n \n9-705(a)(Repl. 2012); Clark v. Peabody Testing Servs., 265 Ark. 489, 579 \nS.W.2d 360 (1979).  The Commission should be more liberal with the \nadmission of evidence rather than more stringent.  Bryant v. Staffmark, Inc., \n76 Ark. App. 64, 61 S.W.3d 856 (2001). \n The Full Commission finds in the present matter that the results of \nthe Functional Capacity Evaluation are relevant and are fully admissible into \nthe record for adjudication.  See Bryant, supra.  It was concluded following \nthe Functional Capacity Evaluation on October 15, 2018 that the claimant \ncould return to at least “Sedentary” employment.  Dr. Vargas reviewed the \nFunctional Capacity Evaluation and opined on October 22, 2018, “I am \nconsidering that the patient can work on full duty without restrictions.”  The \nCommission has the authority to accept or reject a medical opinion and the \nauthority to determine its probative value.  Poulan Weed Eater v. Marshall, \n79 Ark. App. 129, 84 S.W.3d 878 (2002).  In the present matter, there are \nno medical opinions of record contradicting Dr. Vargas’ conclusion that the \nclaimant is able to return to full work duties.  The Commission finds that Dr. \nVargas’ opinion is supported by the record and is entitled to significant \nevidentiary weight.          \nIn workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The Commission is not required to believe the testimony of the \n\nSOWELL - G804085  20\n  \n \n \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  The Full \nCommission also has the duty to decide the case de novo and we are not \nbound by the characterization of evidence adopted by an administrative law \njudge.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 \n(1990). \nIn the present matter, with regard to her ability to return to \nappropriate gainful employment, the Full Commission finds that the \nclaimant was not a credible witness.  Following the Functional Capacity \nEvaluation in which it was concluded that the claimant could perform at \nleast “sedentary” work, Dr. Vargas released the claimant to “full duty without \nrestrictions.”  The record shows, however, that the claimant did not attempt \nto return to appropriate work with the respondents or any other employer.  \nIn her deposition taken May 13, 2020, the claimant admitted that she had \nnot applied for work with any employer.  The evidence of record does not \ncorroborate the claimant’s testimony that she was physically unable to \nperform even “desk work.”  The claimant’s demonstrated lack of interest in \nreturning to work is an impediment to a full assessment of the claimant’s \ncontention that she is permanently and totally disabled.  Oller v. Champion \nParts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).  The claimant \n\nSOWELL - G804085  21\n  \n \n \ndid not prove by a preponderance of the evidence that she was \npermanently and totally disabled as a result of her compensable injury.   \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove additional medical treatment was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nHowever, the Full Commission finds that Change of Physician Order dated \nJune 7, 2019 has been rendered void due to Dr. Kazemi’s unwillingness to \nexamine the claimant prior to additional diagnostic testing.  We therefore \nfind that the claimant proved she is entitled to another change of physician \nif the claimant requests same.  See Wal-Mart Associates, Inc. v. Keys, \nsupra.  In the event of another change of physician, the respondents must \npay for at least the initial visit with the new physician.  See Wal-Mart Stores, \nInc. v. Brown, supra.  The Full Commission finds that the claimant did not \nprove she was permanently and totally disabled as a result of her \ncompensable injury.  The claimant did not prove that the Workers’ \nCompensation Act, specifically Act 796 of 1993, is violative of any federal \nConstitutional provision or applicable amendment to same.  Woods v. \nTyson Poultry, Inc., 2018 Ark. App. 186, 547 S.W.3d 456, citing Hopkins v. \nHarness Roofing, Inc., 2015 Ark. App. 62, 454 S.W.3d 751.  See also \nStrother v. Lacroix Optical, 2013 Ark. App. 719; Long v. Wal-Mart Stores, \nInc., 98 Ark. App. 70, 250 S.W.3d 263 (2007).   \n\nSOWELL - G804085  22\n  \n \n \nIT IS SO ORDERED             \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":32580,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G804085 LISA SOWELL, EMPLOYEE CLAIMANT EVERGREEN PACKAGING, LLC, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE COMPANY/ GALLAGHER BASSETT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT","outcome":"denied","outcomeKeywords":["granted:1","denied:3"],"injuryKeywords":["back","lumbar","cervical","neck","hip","strain"],"fetchedAt":"2026-05-19T22:29:46.343Z"},{"id":"alj-H205385-2023-06-22","awccNumber":"H205385","decisionDate":"2023-06-22","decisionYear":2023,"opinionType":"alj","claimantName":"Shanda Turner","employerName":"Arkansas Lamp Manufacturing Company Inc","title":"TURNER VS. ARKANSAS LAMP MANUFACTURING COMPANY INC AWCC# H205385 JUNE 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TURNER_SHANDA_H205385_20230622.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TURNER_SHANDA_H205385_20230622.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H205385 \n \nSHANDA TURNER, EMPLOYEE   CLAIMANT \n \nARKANSAS LAMP MANUFACTURING COMPANY INC., EMPLOYER RESPONDENT \n \nSUMMIT CONSULTING, INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED JUNE 22, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents are represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  August 11, 2022, claimant filed Form AR-C, alleging a compensable injury on March 5, \n2022.   Claimant represented at the time by Jarid M. Kinder, who remains her attorney of record.    \nOn March 23, 2023, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time. Claimant’s attorney advised the Commission on April 18, 2023 that he had \nno objection to the Motion to Dismiss and would not attend the hearing  A hearing on respondent’s \nMotion  to  Dismiss  was scheduled  for  June  13,  2023.    Notice  of  the scheduled  hearing  was sent  to \nclaimant by certified mail at the last known address in the Commission’s file.  The notice was  delivered \nto claimant on April 22, 2023. Claimant did not appear in person at the hearing on June 13, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the Respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the Respondent’s motion, as well as all other matters \n\nTurner-H205385 \n \n2 \n \nproperly before the Commission, I find that Respondent’s Motion to Dismiss this claim should be \nand hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2187,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205385 SHANDA TURNER, EMPLOYEE CLAIMANT ARKANSAS LAMP MANUFACTURING COMPANY INC., EMPLOYER RESPONDENT SUMMIT CONSULTING, INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED JUNE 22, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, W...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:06:40.295Z"},{"id":"alj-H208127-2023-06-21","awccNumber":"H208127","decisionDate":"2023-06-21","decisionYear":2023,"opinionType":"alj","claimantName":"Ray Branch","employerName":"Pulaski County Special School District/pcssd","title":"BRANCH VS. PULASKI COUNTY SPECIAL SCHOOL DISTRICT/PCSSD AWCC# H208127 JUNE 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BRANCH_RAY_H208127_20230621.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRANCH_RAY_H208127_20230621.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H208127 \n \n \nRAY C. BRANCH, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nPULASKI COUNTY SPECIAL SCHOOL DISTRICT/PCSSD,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nARKANSAS SCHOOL BOARDS ASSN. WCT,  \nINSURANCE CARRIER                                                                                        RESPONDENT                           \n          \nARKANSAS SCHOOL BOARDS ASSN,                                                                                                                                  \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED JUNE 21, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, failed to appear for the hearing.         \n \nRespondents  represented  by  the  Honorable  Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on June 20, 2023 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (d) (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule \n099.13.  \nAppropriate Notice of this hearing was attempted on all parties to their last known address, \nin the manner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the  June  20,  2023,  hearing  and  the  documents \ncontained therein.   Also, the entire Commission’s file has been made a part of the record.   It is \n\nBranch – H 208127 \n \n2 \n \nhereby incorporated herein by reference.  The Respondents’ Hearing Exhibit Packet consisting of \nthirty-one numbered pages was marked as Respondents’ Exhibit 1.     \n                                                                 Discussion \n On  November  16,  2022,  the  Claimant  filed  with  the  Commission  a  claim  for  Arkansas \nworkers’ compensation benefits by way of a Form AR-C.  Specifically, the Claimant alleged that \nhe sustained injuries to his back and left side, on October 6, 2022.  The Claimant checked some \nthe boxes for initial workers’ compensation benefits in the form of, temporary partial disability, \nrehabilitation  and medical  expenses.  Also,  on  this  form,  the  Claimant  specifically  made  a \nhandwritten request for back checks for being off over a month.        \n  The respondent-insurance-carrier filed a Form AR-2 with the Commission on November \n17, 2022, wherein they denied compensability on the grounds of “incomplete investigation.” \n On December 1, 2022, the claim was sent to the Legal Advisors’ Division for mediation.  \nThe  attempt  to  set  up  medication  failed.    Therefore,  on  December  13,  2022,  the  claim  was \ntransferred to the Clerk’s Office for reassignment to an Administrative Law Judge for adjudication.     \n The  claim  was  transferred  to  me  for  a  hearing  on  the  merits.    On  December  16,  2022, \nPrehearing Questionnaires and Preliminary Notices were mailed to the parties with deadlines for \nfiling timely responses.   \n The  Claimant  failed  to  file  a  timely  response.    Therefore,  the  claim  was  returned  to  the \nCommission’s general files on January 17, 2023.   \n Since this time and the filing of the Form AR-C, there has been no bona fide action on the \npart of the Claimant to prosecute this claim, or otherwise pursue any benefits.  \n\nBranch – H 208127 \n \n3 \n \nOn March 10, 2023, the Respondents filed with the Commission a letter-motion requesting \nthat the claim be dismissed for a lack of prosecution.  The Respondents notified the Claimant of \ntheir motion  for dismissal by way of mailing a copy of to him.  \nThe Commission sent a  letter-notice to the Claimant’s last known address on March 20, \n2023.    Per  this  correspondence,  the  Claimant  was  given  a  deadline  of  twenty  days,  for  filing  a \nwritten response to the Respondents’ motion.  \nInformation received by the Commission from the United States Postal Service indicates \nthat they were unable to locate any delivery information on this item in their records.  \n Yet, there was no response from the Claimant. \nTherefore, pursuant to a Hearing Notice dated May 18, 2023, the Commission notified the \nparties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim due \nto  a  lack  of  prosecution.    Said  hearing  was  scheduled  for  June  20,  2023, at  10:30  a.m.,  at  the \nArkansas Workers’ Compensation Commission, in Little Rock, Arkansas. \n However, on June 3, 2023, the United States Postal Service informed the Commission that \nthey  were  unable  to  locate  any  delivery  information  on  the  above  item.    Of  significance,  the \nClaimant  contacted  the  Commission  June  16,  2023, to  objected  to  his  claim  being  dismissed.  \nSpecifically, he wrote, “I Ray Branch, Jr. [the Claimant] ....  I do not have an attorney to represent \nme so I need a cancellation on the court day until I finish with my rehab and my second specialist \nand  then  my  MRI  and  then  I  will  be  ready.  Sorry for  the  inconvenience.”   The  Claimant  was \ninformed  that  the  hearing  would  remain  on  the  docket  as  scheduled,  with  his  objection  and \ncomments being noted.      \n\nBranch – H 208127 \n \n4 \n \n Subsequently, a hearing was in fact conducted on the Respondents’ motion for dismissal \nas  scheduled.    The  Claimant  failed  to  appear  at  the  hearing  and  his  message  was  given  full \nconsideration.  Nevertheless, the Respondents appeared through their attorney.   \nCounsel  noted  that  the  Claimant  has  failed  to  timely  prosecute  his claim  for  workers’ \ncompensation  benefits.    Counsel  further  noted  that  there  has  been  no  attempt  on  the  part  of  the \nClaimant to move forward with a hearing.  Explicitly, counsel for the Respondents noted that the \nClaimant  did  not  respond  in  a  prompt  fashion  during  the  prehearing  process  and  his  discovery.  \nMoreover, he pointed out that  the Claimant failed to respond to the notices of this Commission \nuntil  his  email  of  June  16,  2023,  just  four  days  prior  to  the  scheduled  hearing  and  nor  did  the \nClaimant appear at the hearing to object to the dismissal of his claim.  Therefore, counsel moved \nthat  this  claim  be  dismissed  under  the  provisions  of  Ark.  Code  Ann.  §11-9-702,  and  Arkansas \nWorkers’ Compensation Commission Rule 099.13 without prejudice. \nThe record before me proves that the Claimant has failed to timely prosecute his claim for \nworkers’ compensation benefits.  The Claimant’s objection to the dismissal has been taken into \nfull  consideration.    However,  if  the  Claimant  intends  to  pursue  his  claim  as  indicated,  he  has \nsufficient time to refile his claim with the Commission before the statute of limitations has run on \nit.    Therefore,  per  Rule  099.13  of  this  Commission,  I  find  that  this  claim  is  hereby  dismissed, \nwithout prejudice to the refiling of it with the limitation period specified by law.  Considering the \nforegoing  finding,  consideration  for  dismissal  of  the  within  claim  under  the  provisions  of  Ark. \nCode Ann. §11-9-702, has been rendered moot. \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n\nBranch – H 208127 \n \n5 \n \n1.        The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Respondents filed with the Commission, letter-motion to dismiss this \nclaim for which a hearing was held. \n \n3. The evidence preponderates that the Claimant failed to timely prosecute his \nclaim for workers’ compensation benefits.   \n \n4. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            5. The Respondents’ motion  to  dismiss  is  hereby  granted  without  prejudice \npursuant  to  Commission  Rule  099.13,  to  the  refiling  of  it  within  the \nlimitation period specified by law.  \n \nORDER \n \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis  hereby  dismissed  pursuant  to  Arkansas Workers’  Compensation  Commission  Rule  099.13, \nwithout prejudice to the refiling of it, within the limitation period specified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":9184,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H208127 RAY C. BRANCH, EMPLOYEE CLAIMANT PULASKI COUNTY SPECIAL SCHOOL DISTRICT/PCSSD, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSN. WCT, INSURANCE CARRIER RESPONDENT ARKANSAS SCHOOL BOARDS ASSN, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 2...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:06:36.175Z"},{"id":"alj-H204473-2023-06-21","awccNumber":"H204473","decisionDate":"2023-06-21","decisionYear":2023,"opinionType":"alj","claimantName":"Phil Stuard","employerName":"Amerities Founders, LLC","title":"STUARD VS. AMERITIES FOUNDERS, LLC AWCC# H204473 JUNE 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/STUARD_PHIL_H204473_20230621.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STUARD_PHIL_H204473_20230621.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H204473 \n \n \nPHIL STUARD, \nEMPLOYEE                                                                                                               CLAIMANT \n \nAMERITIES FOUNDERS, LLC,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nCHARTIS PROPERTY CASUALTY COMPANY,  \nINSURANCE CARRIER                                                                                        RESPONDENT                           \n          \nAIG, INC.,                                                                                                                                   \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED JUNE 21, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, failed to appear for the hearing.         \n \nRespondents  represented  by  the  Honorable  Jarrod S.  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on June 20, 2023 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute pursuant to the provisions of \nArk. Code Ann. §11-9-702 (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule \n099.13.  \nAppropriate Notice of this hearing was attempted on all parties to their last known address, \nin the manner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the  June  20,  2023,  hearing  and  the  documents \ncontained therein.  The remainder of the Commission’s file has also been made a part of the record.  \n\nStuard – H 204473 \n \n2 \n \nIt is hereby incorporated herein by reference.  The Respondents’ Hearing Exhibit Index consisting \nof one cover page and eleven numbered pages was marked as Respondents’ Exhibit 1.     \n                                                                 Discussion \n On  September  28,  2022,  the Claimant’s attorney filed  with  the  Commission  a  claim  for \nworkers’ compensation benefits on behalf of the Claimant by way of a Form AR-C.  Specifically, \nthe  Claimant’s  attorney alleged: “Claimant  was  in  the  course  and  scope  of  employment  and \nsustained injury to his back and other whole body.”  Per this form, the Claimant’s injury occurred \non  June  14,  2022.    His  attorney checked  all  the  boxes  for  both  initial  and  additional  workers’ \ncompensation benefits.        \n  The  respondent-insurance-carrier  filed  a  Form  AR-2  with  the  Commission  on  June  28, \n2022, wherein they accepted compensability of the claim for a strain to the Claimant’s cervical, \nthoracic and lumbar spine.  \n On or about December 1, 2022, the Claimant’s attorney filed with the Commission a letter- \nmotion to be relieved as counsel of record.   The Full Commission entered an order granting the \nmotion for Claimant’s attorney to withdraw as counsel for the Claimant in this matter on or about \nDecember 13, 2022. \nSince this time and the filing of the Form AR-C, there has been no action taken on the part \nof the Claimant to prosecute this claim, or otherwise pursue benefits.  \nAs a result, on March 29, 2023, the Respondents filed with the Commission a Motion to \nDismiss for Failure to Prosecute, along with a Certificate of Service to the Claimant.  Specifically, \nthe  Respondents  mailed  a  copy  of  the  said  motion  to  the  Claimant  via  the  United  States  Postal \nService. \n\nStuard – H 204473 \n \n3 \n \nThe Commission sent a notice to the Claimant’s last known address on March 29, 2023, \ninforming him of the Respondents’ motion for dismissal.  Per this correspondence, the Claimant \nwas given a deadline of twenty days for filing a written response to the Respondents’ motion.  \n Subsequently, the United States Postal Service informed the Commission that on April 1, \n2023, the above referenced letter that the Commission sent to the Claimant, notifying him of the \nmotion to dismiss was delivered to his home and left with an individual.  However, the signature \nof the individual signing for delivery of this letter is scribbled. \n Yet, there was no response from the Claimant. \nTherefore, pursuant to a Hearing Notice dated May 12, 2023, the Commission notified the \nparties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim due \nto  a  lack  of  prosecution.    Said  hearing  was  scheduled  for  June  20,  2023, at  10:00  a.m.,  at  the \nArkansas Workers’ Compensation Commission, in Little Rock, Arkansas. \nThe United States Postal Service informed the Commission that on May 19, 2023, the letter \napprising the Claimant of the hearing on the Respondents’ motion to dismiss was delivered to his \nhome and left with a certain individual.   Yet again, the signature of the individual taking delivery \nof the Hearing Notice is illegible.     \nNevertheless, thus far there has been no response from the Claimant. \n A hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \nfailed to appear at the hearing.  However, the Respondents appeared through their attorney.   \nCounsel essentially noted that the Claimant has failed to prosecute his claim for workers’ \ncompensation  benefits.    Counsel  also  noted  that  there  has  been  no  attempt  on  the  part  of  the \nClaimant to prosecute his claim since the filing of the Form AR-C over almost nine months ago.  \nPer counsel for the Respondents, the Claimant was released from medical care on November 21, \n\nStuard – H 204473 \n \n4 \n \n2022,  with  a  zero  percent  impairment.    Therefore,  counsel  moved  that  this  claim  be  dismissed \nwithout  prejudice  under  Ark.  Code  Ann.  §11-9-702,  and Arkansas  Workers’  Compensation \nCommission Rule 099.13. \nThe record before me demonstrates that a request for a hearing has not been filed by or on \nbehalf of the Claimant since the filing of the Form AR-C, which was approximately nine months \nago in September 2022.  Of significance is the Claimant’s failure to appear at the dismissal hearing.  \nMoreover, the Claimant has made no effort whatsoever to object to the dismissal of his claim, nor \nhas he responded to the notices of this Commission.  Hence, the preponderance of the evidence \nproves  that  the  Claimant  has failed  to  prosecute  his  claim  for  workers’  compensation  benefits.  \nThis  is  a  clear  illustration  that  the  Claimant  has  abandoned  his  claim.  Therefore,  based  on  the \nforegoing facts, the dismissal of this claim is well-founded, without prejudice, to the refiling of it \nwithin the limitation period specified by law.  That said dismissal should be and is hereby made \npursuant to the provisions of Ark. Code Ann. §11-9-702, and Arkansas Workers’ Compensation \nCommission Rule 099.13. \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. On September 28, 2022, the Claimant’s attorney filed a Form AR-C, with \nthe Commission, alleging that the Claimant sustained an injury to his back \nand other whole body while working for the respondent-employer on June \n14, 2022.   \n \n3. The respondent-insurance-carrier filed a Form AR-2, with the Commission \non or about June 23, 2022, accepting this claim as compensable for a strain \nto the Claimant’s cervical, thoracic, and lumbar spine.      \n \n\nStuard – H 204473 \n \n5 \n \n4. Since the filing of the Form AR-C virtually nine months ago, the Claimant \nhas failed to prosecute his claim and taken no action whatsoever to pursue \nit.    \n \n5. On March 29, 2023, the Respondents filed with the Commission, a Motion \nto Dismiss for Failure to Prosecute.   A hearing was held on the motion, but \nthe Claimant failed to appear at the hearing, and he has not objected to his \nclaim being dismissed or responded to the notices of this Commission. \n \n6. The evidence preponderates that the Claimant has failed to prosecute this \nclaim  under  the  provisions  of  Ark.  Code  Ann.  §11-9-702,  and  Arkansas \nWorkers’ Compensation Commission Rule 099.13.   \n \n7. Appropriate  notice  of  the  motion  and  dismissal  hearing  was  had  on  the \nClaimant to his last known address, in the manner prescribed by law.    \n \n            8. The Respondents’ motion to dismiss this claim for a lack of prosecution  is \nhereby granted, without prejudice pursuant to Ark. Code Ann. §11-9-702, \nand  Commission  Rule  099.13,  to  the  refiling  of  it  within  the  limitation \nperiod specified by law.  \n \nORDER \n \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. §11-9-702, and Arkansas Workers’ Compensation \nCommission  Rule  099.13,  without  prejudice,  to  the  refiling  of it  within  the  limitation  period \nspecified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":9592,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H204473 PHIL STUARD, EMPLOYEE CLAIMANT AMERITIES FOUNDERS, LLC, EMPLOYER RESPONDENT CHARTIS PROPERTY CASUALTY COMPANY, INSURANCE CARRIER RESPONDENT AIG, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 21, 2023 Hearing held before Administrati...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":["back","strain","cervical","thoracic","lumbar"],"fetchedAt":"2026-05-19T23:06:38.237Z"},{"id":"alj-G506453-2023-06-20","awccNumber":"G506453","decisionDate":"2023-06-20","decisionYear":2023,"opinionType":"alj","claimantName":"Kenneth Johnson","employerName":"Land O’frost","title":"JOHNSON VS. LAND O’FROST AWCC# G506453 JUNE 20, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JOHNSON_KENNETH_G506453_20230620.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_KENNETH_G506453_20230620.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G506453 \n \nKENNETH A. JOHNSON, EMPLOYEE         CLAIMANT \n \nVS. \n \nLAND O’FROST, EMPLOYER                 RESPONDENT \n \nLAND O’FROST, INC. CARRIER \nPMA MANAGEMENT CORP, TPA            RESPONDENT \n \nOPINION FILED JUNE 20, 2023 \n \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy, on  the  9\nTH\n day  of May, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant  is  represented  by  Mr.  Andy L.  Caldwell,  Attorney-at-Law, of  Little  Rock, \nArkansas. \n \nRespondents are represented by  Mr. Guy Alton Wade, Attorney-at-Law, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on the 9\nth\n day of May, 2023.  At the time of the hearing, \nthe issues were clarified by the parties and it was agreed that the issues to be litigated at \nthe time of the hearing were as follows: (1)  compensability of an injury to the claimant’s \nback and the related medical, and whether the claimant is entitled to PPD in regard to the \nback injury;  (2)  compensability of an injury to the claimant’s head and related medical;  \n(3)    the  issue  of  permanent  partial  disability  or,  in  the  alternative,  wage-loss;  and  (5) \nattorney’s fees.  All other issues were reserved. The respondents contend the claimant \ndid not sustain a compensable back injury and that there were no objective findings in \nregard to a back injury.  Dr. Seale provided a zero percent (0%) rating for PPD in regard \nto the claimed back injury.  In regard to the claimed head injury, the respondents contend \nthat the claimant did not sustain a compensable head injury and there were no objective \n\nJOHNSON – G506453 \n \n2 \n \nfindings  in  regard  to  this  injury.  The  respondents  also  contended  that  the  claimant’s \ninability  to  work,  if  applicable, was  related  to  conditions  that  the  respondents were  not \nresponsible for; that the claimant is not P&T; and that he is not entitled to wage-loss or \nany other impairment. \nA Prehearing Order dated March 13, 2023, provided that the parties stipulated that \nthe Arkansas Workers’ Compensation Commission had jurisdiction of the within claim and \nthat an employer/employee/carrier relationship existed on or about August 21, 2015, and \nat all relevant times thereto.  Additionally, it was stipulated that the claimant sustained a \ncompensable right hip and neck injury.  It was also stipulated that the claimant earned \nsufficient  wages  for  temporary  total  disability  /  permanent  partial  disability  rates  of \n$629.00 / $472.00, respectively.  Finally, the parties agreed that the claimant received an \neleven percent (11%) permanent partial disability rating to the body as a whole by Doctor \nSeale, which was accepted and paid.        \n The Prehearing Order and the claimant’s contentions and amended contentions, \nas well as the respondent’s contentions were all set out in their respective responses to \nthe  prehearing  questionnaire  and  made  a  part  of  the  record  without  objection.    The \nwitnesses were Kenneth Johnson, the claimant, along with his wife Patricia Johnson, and \nTeddy  Townsend,  the  environmental  and  safety  coordinator  for  the  employer.  From  a \nreview  of  the  record  as  a  whole,  to  include medical  reports and other matters properly \nbefore  the  Commission,  and  having  had  an  opportunity  to  observe the  testimony  and \ndemeanor of the witnesses, the following findings of fact and conclusions of law are made \nin accordance with Arkansas Code Annotated § 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n\nJOHNSON – G506453 \n \n3 \n \n1.   The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That an employer/employee relationship existed on August 21, 2015, the date \nof  the  claimed  injuries.  At  the  time,  the  claimant  earned  an  average  weekly \nwage  sufficient  for  TTD  /  PPD  rates  of  $629.00  /  $427.00,  respectively,  per \nweek. \n \n3.  That the claimant sustained a compensable right hip and neck injury on August \n21, 2015, which was accepted by the respondents. \n \n4.  The claimant received an eleven percent (11%) disability rating to the body as \na whole in regard to his neck injury, which has been paid in full. \n      \n5. That the claimant has failed to satisfy the required burden of proof to show that \nhe  sustained a  compensable  work-related  injury  to  his  back  and  head on \nAugust 21, 2015, and consequently the claims for medical, as well as PPD in \nregard to the back injury, are moot. \n \n6.  The claimant has failed to satisfy the required burden of proof that he is entitled \nto permanent and total disability and, in the alternative, has also failed to satisfy \nthe required burden of proof for wage-loss. \n \n7.  The issue of attorney fees is moot. \n   \n8.  That all other issues are reserved. \n \n9.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The Prehearing Order along with the responses to the prehearing questionnaires \nand amended response of the claimant were admitted into the record without objection.  \nThe claimant submitted three (3) exhibits that were admitted without objection: (1) 111 \npages  of medical  reports;  (2)   21   pages  consisting of the  payroll register, emails,  and \npayments; and (3) 38 pages of correspondence and payroll records.  The respondents \nalso submitted three (3) exhibits that were submitted without objection: (1) 43 pages of \n\nJOHNSON – G506453 \n \n4 \n \nmedical reports; (2)  The AR - C Form and correspondence; and (3) 1 page consisting of \nthe Wade letter. \n The claimant testified that he was born on July 11, 1948,  was driving a truck for \nthe respondent on August 21, 2015, and had been employed with them for eleven (11) or \ntwelve (12) years.  While working for the respondent, he fell approximately 20 or 25 feet \nfrom  the  “bubble  of  the  truck”  attempting  to  remove  the  antenna  from  the truck.    He \ntestified when he hit, he injured his ear, head, and neck.  His ear and right posterior head \nwas lacerated, and the insurance girl took him to Dr. Warnock.  He returned to the doctor \nthe next day complaining of headaches and pain in his ear.  He had an open wound in \nregard   to    his  right  ear,  a  shoulder  bruise, and a  contusion  on his  right  buttock and a \nbruise on his right hip.  The claimant agreed he had a burning sensation in his right ear \nand consequently could not wear his glasses.  He denied having headaches or mental \nstatus problems prior to the fall. (Tr.p. 17-22) \n The claimant admitted having problems with his memory and confusion after the \nfall and stated it had gotten worse.  The claimant stated he was having visual changes, \nlow  back  pain,  and  numbness  after  he  sat  for  a  while.    He  agreed  that  when  taking  a \nshower and closing his eyes, he would lose his balance and needed balance training and \nthat he had pain shooting down his left neck and into his head, along with pain in his lower \nback and into his right leg while  attending physical therapy in November of 2015.  The \nclaimant also agreed he had neck pain on the left side with mid-back pain and was treated \nwith  Tramadol.  (Tr.p.  23-27)   The  claimant  testified  that  he  returned  to  Dr.  Warnock \nmultiple times and that his right ear still hurt.  He felt that at night his pain sometimes got \nso bad that he cried.  The claimant was referred to Dr. Seale while he was still having \n\nJOHNSON – G506453 \n \n5 \n \nneck and back pain, with pain radiating down the left shoulder and left arm.  Additionally, \npain was radiating down his left buttock and leg.   Dr. Seale performed a cervical fusion \non his neck and released him to return to work.  The claimant returned to the respondent \nand performed the same job for about a year.  He quit working for the respondent due to \nthe pain returning.  He had problems navigating the truck where the road had changed \nand had difficulty backing the trailer.  The claimant was sent to Dr. Dan Johnson, a clinical \nneuropsychologist, by the respondent.   He had not returned to work since Dr. Johnson \nissued his report.  He testified he had problems with his back and his mobility and difficulty \nturning  to  the  left  along  with  neck  problems and left  leg  problems  similar  to  when  the \naccident first happened.  The claimant denied being seen by a psychiatrist but agreed he \nwas still having memory problems. (Tr.p. 28-34) \n Under cross-examination, the claimant agreed he was sixty-seven (67) years old \nat the time of the accident and was on social security retirement since the age of sixty-six \n(66), and still had his CDL for local driving.  He also agreed the last doctor who treated \nhim  for  his  injuries  was  Dr.  Baskin.    He  currently  had  been  treated  by  the  VA  for  high \ncholesterol,  diabetes,  blood  work,  and  they  had  also  provided  a  depression  pill.    He \nagreed that after the injury, he had been released by Dr. Seale to full duty in March of \n2016, and had team driven.  He also had passed a DOT physical after the accident.  He \nalso agreed that  Dr. Seale  had given  him an  impairment  rating  after  his  surgery  which \nhad been paid.  He passed another DOT physical in July of 2018, and drove 55,036 miles \nin 2018 and 77,975 miles in 2019, which was three or four years after the accident and \nwould drive to the west coast.  He also agreed he received a short-term disability payment \n\nJOHNSON – G506453 \n \n6 \n \nfrom  a  policy  he  had  provided.    Additionally,  no  one  had  recommended  any  additional \nmedical care in relation to his work injury. (Tr.p. 35–41)  \n He had a CT scan and an MRI of his brain.  The claimant was not aware that Dr. \nWarnock had opined his mental status change had resolved.  He agreed that Dr. Seale \nhad given him a zero percent (0%) impairment rating for his back.  He also agreed after \nhis neck surgery, he received a percentage rating for his neck.   The claimant admitted \nthat he was seventy-one (71) at the time of the evaluation by Dr. Johnston and that he \nsaw Dr. Baskin once. (Tr.p. 42–46)  The claimant also testified he had not looked for any \nwork after he left the respondent, but had received his social security. (Tr.p. 47-48) \n On redirect, the claimant agreed he would have continued to work if he had not \nbeen taken off work By Dr. Baskin.  The claimant also agreed Dr. Baskin was not treating \nhim  and  no  physician/patient  relationship  had  been  established.  (Tr.p.  48-49)  The \nclaimant admitted that after the surgery by Dr. Seale, and after being released by him, he \nstarted treating him again and that he opined the patient had no history of pain in the low \nback or down the leg prior to his work injury, and therefore, “It is within a certain degree \nof  medical  certainty  that  at  least  fifty-one  (51%)  of  the  patient’s  current  symptoms  and \nneed  for  surgery  are  directly  related  to  the  injury.”  (Tr.p.  50)    On  recross,  the  claimant \nagreed that Dr. Seale was referring to the neck. (Tr. 51) \n The  claimant  then  called  Patricia  Johnson,  his  wife,  who  testified  that  they had \nbeen together forty (40) years and she was aware of his injury on the date that it occurred.  \nShe testified that the claimant complained of his head, ear, neck, back, and hip hurting.  \nHe had not complained of headaches prior to the accident and she was not aware of him \n\nJOHNSON – G506453 \n \n7 \n \nseeking treatment for back or neck pain and not aware of the claimant having issues prior \nto the accident.  She stated he was a different man now. (Tr.p. 54-58)  \n Under cross-examination, Ms. Johnson agreed the claimant had worked the same \ntype of schedule as before the accident, and that when he returned to driving, it sounded \ncorrect that he drove about 62,323 miles. (Tr.p. 59-60) \n Teddy Townsend was called by the respondent after an objection by the claimant \nat the start of the hearing.  He testified that he was an environmental health and safety \ncoordinator,  that  he  monitors  workers’  compensation  claims,  and  was  familiar  with  the \nclaimant.  He testified that the top of the truck was only about twelve (12)  to thirteen (13) \nfeet because you can’t get under an overpass at twenty (20) feet.  The claim for the neck \nand hips was accepted as compensable.  He was also aware that after the treatment by \nDr. Warnock, the claimant returned to work and was assigned to team driving and had a \nDOT physical in March of 2016.  He ended up having neck surgery by Dr. Seale who then \nreleased  him  and  he  returned  to  work,  driving  long-haul.    After  being  released  by  Dr. \nSeale, the claimant was required to have another physical and drug screen because he \nhad been out so long, which he passed successfully, and he then went out on the road \nagain.  He testified that the claimant drove a little over 55,000 miles in 2018, and 77,975 \nmiles in 2019.  He also agreed that the claimant received short-term disability which was \npaid for by the respondent for about six (6) months.  After the report by Dr. Johnston, the \nclaimant was not allowed to return to work and that was when he received the short-term \ndisability. (Tr.p.64-69) \n Under  cross-examination,  Mr.  Townsend  testified  he  had  no  knowledge  of  the \nclaimant ever being reprimanded for disorientation or backing into trucks or trailers and \n\nJOHNSON – G506453 \n \n8 \n \nhe was not aware of any complaints from his  team driver.  He saw the claimant on the \nday  of  his  injury  and  had  no  reason  to  dispute  the  medical  records  that  provided  the \nclaimant had a right ear and head laceration and also that the claimant was complaining \nof memory loss, dizziness, and confusion.  He was not aware of any of these complaints \nprior to the work injury.  He also agreed the claimant indicated that he wanted to return to \nwork. (Tr.p. 70-71) \n Under redirect, Mr. Townsend stated he would not have allowed the claimant to \nreturn to driving if he had suspected a cognitive deficit or brain injury, nor did he suspect \none in 2016, 2017, 2018, or 2019.  He also agreed that the claimant had passed two (2) \nDOT physicals during that time, and that if he had complained to the physician performing \nthe DOT physical, he would not have passed. (Tr.p. 72-73)     \n           In  regard  to  medical  records,  the  claimant  presented  to  PrimeCare  Medical  & \nWellness  Clinic  and  was  seen  by  Dr.  Wornock  on  the  day  of  the  accident,  August  21, \n2015, and then returned on August 22, 25, 28, in 2015.  The assessment on August 21 \nprovided for an open wound of the ear which was closed with stiches and a head injury.  \nOn the August 22, 2015, visit, the report provided the ear looked good, with a bruise over \nthe right deltoid, no bruise over the buttocks, and with a good range of motion of the hip \nand shoulder.  A head injury was mentioned under  the chief complaint.  On August 25, \n2015, the claimant mentioned numbness of the right hip.  On the August 28 follow-up, the \nreport provided for a mental status change and a CT scan was recommended. (Cl. Ex. 1, \nP.1-  8)  The CT scan of the brain on August 28, 2015, provided for a negative scan of the \nbrain, and showed left maxillary sinusitis. (Cl. Ex. 1, P. 9)  The claimant returned to Dr. \nWornock on September 1, 2015, and the report provided that the mental status change \n\nJOHNSON – G506453 \n \n9 \n \nwas  now  resolved.  (Cl.Ex.1,  P.10-11)  The  next  visit  to  Dr.  Wornock  occurred  on \nNovember 20, 2015, for a follow-up.  The report provided that the sixty-seven (67) year \nold claimant was suffering from visual changes and that his legs go numb when he tries \nto sit, that he has a hard time starting to walk, and if he closed his eyes while showering, \nhe  lost  his  balance.  He  was  assessed  with  bilateral  low  back  pain  without  sciatica, \nblepharitis (inflammation of the eyelids) on the right, and cervicalgia.  (Cl.Ex.1, P. 11-12) \n The claimant then made multiple visits to Reaper Physical Therapy from November \n23,  2015,  through  December  29,  2015.  (Cl.Ex.1,  P.13-15)    He  then  returned  to  Dr. \nWornock on January 8, 2016,  and the report provided there had been an improvement \nand the claimant felt great while in physical therapy, but that pain comes and goes at the \nbase of his neck on the left side, mild back pain, and that he suffered headaches like his \nhead was blowing off, along with white spots on the right ear.  His neck range of motion \nwas pretty good but he suffered a lot of pain when he turned his head to the left.  He was \nagain diagnosed with cervicalgia and was referred to Dr. Sprinkle  in regard to returning \nto work.  The report also provided if the claimant received clearance, he would be referred \nto Serena McKnight for cognitive testing. (Cl.Ex.1, P. 16-17)  The claimant returned to Dr. \nWornock on January 26, 2016, with the complaint of pain on the left side of his neck with \nradiation of the pain to the left shoulder, with the pain sometimes being sufficient to make \nhim cry.  The claimant was also advised not to drive. (Cl.Ex.1, P. 18-20)  The claimant \nreturned  to  Dr. Wornock  on  February  2,  2016,  who  again  diagnosed  cervicalgia  with a \nlimited  range  of  motion  and  again  stated  that  the  claimant  could  not  drive  and  that  he \nwould be seeing a specialist. (Cl.Ex.1, P. 20-24)  \n\nJOHNSON – G506453 \n \n10 \n \n On  March  7,  2016,  the  claimant  presented  to  Dr.  Seale  at  Arkansas  Specialty \nOrthopedics.  The report provided the claimant had sixteen (16) visits of physical therapy, \nhad full range of motion without pain or tenderness of the lumbar spine, and his bilateral \nshoulders showed a full range of motion.  He had a limited range of motion to the left in \nhis cervical spine.  The claimant suffered from degenerative disc disease of the C5-6 with \nleft sided pain to the shoulder along with L5-S1 severe degenerative disc disease with \nback pain and bilateral leg pain.  The report allowed the claimant to return to commercial \ndriving  with  no  restrictions.  An  X-ray  of  the  cervical  spine  provided  for  moderate  disc \nspace narrowing and a view of the lumbar spine revealed severe disc space collapse with \nbone spurring. (Cl.Ex.1, P.25-28) \n The claimant returned to Dr. Seale on May 9, 2016, and the report provided that \nthe claimant was at MMI and he was assessed with C5-6 degenerative disc disease with \nleft sided neck pain to the shoulder and L5-S1 severe degenerative disc disease, back \npain, and bilateral leg pain.  The patient’s impairment rating was zero percent (0%) due \nto no objective findings of injury and that the problems were pre-existing.  The claimant \nwas  allowed  to  return  to  work  full-duty  with  no  restrictions.  (Cl.Ex.1,  P.  29-30)    The \nclaimant returned to Dr. Seale approximately nine (9) months later on February 13, 2017.  \nThe report provided the claimant had a full range of motion without pain, tenderness, or \nsigns  of  instability.    The  cervical  spine was  limited  with  pain  worse  on  extension  and \nextension of the lumbar spine resulted in severe low back pain.  The plan provided for \ncore   strengthening   and   stretching,   as   well   as   possible   traction   and   education.  \nRestrictions for no commercial driving and no lifting over twenty (20) pounds were given. \n(Cl.Ex.1, P. 31-35)  The claimant then returned to Reaper Physical Therapy on March 29, \n\nJOHNSON – G506453 \n \n11 \n \n2017, and then again presented to Dr. Seale on April 24, 2017, and also June 5, 2017, \nand  a  MRI  of  the  cervical  and  lumbar  spine  was  recommended  along  with  additional \nphysical  therapy.  (Cl.Ex.  1,  P. 36-40)    After  additional  physical  therapy,  the  claimant \nreceived an epidural steroid injection by Dr. Walker at the C 6-7 epidural space on July \n31, 2017.  The diagnosis was for cervical radiculopathy with disc degeneration at C5-6 \nand C6-7.  (Cl. Ex. 1, P. 41, 42)  The claimant then returned to Dr. Seale on October 18, \n2017, and was assessed with C5-6 and C6-7 degenerative disc disease with left-sided \nneck pain to the left shoulder and arm and severe degenerative disc disease, back pain, \nand bilateral  leg pain at  L5-S1.    The  report went  on  to  provide that  the symptoms  had \nbeen ongoing since a work-related injury over two (2) years ago and that, “it is within a \ncertain degree of medical certainty that at least 51% of the patient’s current symptoms \nand  need  for  surgery  are  directly  related  to  their  work  injury.”  (Cl.Ex.1,  P.  43-45)    The \nclaimant then returned to Dr. Seale on December 12, 2017, and the report again referred \nto  severe  neck  pain  since  a  work-related  injury  two  (2)  years  ago  and, “Therefore  it  is \nwithin  a  certain  degree  of  medical  certainty  that  at  least  51%  of  the  patient’s  current \nsymptoms and need for surgery are directly related to their work injury.”  (Cl. Ex. 1, P. 46, \n47) \n An  anterior  cervical  fusion  at  the  C5,  C6,  and  C7  levels  was  performed  at  St. \nVincent on December 12, 2017, by Dr. Seale.  The post-op diagnosis was degenerative \njoint disease and stenosis at C5-6 and C6-7. (Cl. Ex.1, P 48-52)  The claimant returned \nto  Dr.  Seale  for  an  office  visit  on  February  28,  2018,  and  the  claimant  was  placed    on \nrestrictions  with  no  commercial  driving  and  a  functional  capacity  exam  was  discussed. \n(Cl. Ex. 1, P. 53-56)  On July 11, 2018, Dr. Seale opined that the claimant had reached \n\nJOHNSON – G506453 \n \n12 \n \nMMI  and  could  return  to  work  without  restrictions.    His  impairment  rating  was  eleven \npercent (11%) based upon a single level cervical fusion with decompression with residual \npain being zero percent (0%) with an additional one percent (1%) for the second level.  \nHe was allowed to work with no restrictions. (Cl. Ex. 1, P. 59-61) \n  A Neuropsych consult was performed by Dan Johnson, PHD, on March 12, 2020, \nwhen the claimant was seventy-one (71) years of age.    The report provided that given \nthe  claimant’s  severe  short-term  memory  deficits,  as  well  as  deficits  in  visual  motor \ncapacity,     processing     speed,     and     visual     spatial/depth     perception     from     a \nneuropsych/neurocognitive  perspective,  the  claimant’s  capacity  to  successfully,  and \nreliably navigate the demands of employment were extremely guarded, and he should be \nconsidered   one   hundred   percent   (100%)   disabled   at   that   time   with   no   work \nrecommended. (Cl.Ex.1, P. 62-65)    \n The claimant presented to AR Care on June 30, 2020, for assistance in obtaining \nshort-term  disability.      The  claim  form  provided  that  the  disability  began  on  March  12, \n2020,  and  the  claimant’s  short-term  memory  loss  could  not  be  reversed. (Cl.Ex.1, \nP. 66-71)  A Health Care Provider Statement dated  August 20, 2020, provided that the \nclaimant  had  a  permanent  long-term  condition  that  might  not  require  treatment  but \nrequired the supervision of a health care provider, with the date of leave starting on March \n12, 2020, and going for the claimant’s lifetime. (Cl.Ex.1, P. 79-81) \n On May 27, 2021, the claimant presented to Dr. Barry Baskin for an Independent \nMedical  Exam.    The exam provided  that  the  claimant’s  chief  complaint  was neck  pain, \nneck stiffness, right ear pain, headaches, poor balance and occasional falls, low back and \nhip  pain bilaterally, and  severe memory deficits.  The  exam  appeared  to be a  thorough \n\nJOHNSON – G506453 \n \n13 \n \nreview  of  the  claimant’s  medical  history  from  the  time  of  the  accident.  The  opinion \nreferred to  Dr.  Seale’s  findings  that  although  the  claimant  had  some  pre-existing \nconditions  in  regard  to  his  cervical  spine,  Dr.  Seale  opined  that  greater  than  fifty-one \npercent  (51%) of  the  claimant’s neck  problems  were  related  to  the  work  injury  and  he \nrecommended  cervical  fusion  at  C5-6  and  C6-7.    However,  Dr.  Baskin  felt  that  the \nclaimant’s cognitive decline was more difficult to relate to the accident, due to the interval \nof time between the fall and his exam, approximately six (6) years later.  Dr. Baskin also \nreferred to the records of Dr. Wornock who was following the claimant acutely with the \nrecords providing the claimant manifested memory deficits almost immediately after his \ninjury.  He went on to provide that there were many well documented studies outlining \naccelerated cognitive decline associated with a closed head injury.  He felt an MRI would \nhave  been  helpful  in  regard  to  a  diagnosis  and  that  this  case  was  difficult  due  to  the \nclaimant approaching six (6) years post-injury. He also provided that,“Dr. Johnson, based \non the patient’s history, did not seem to think the patient’s cognitive issues were related \nto the injury.”  Dr. Baskin felt there was additional medical out there. (Cl.Ex.1, P. 82-88)  \nAn addendum to the Independent Medical Evaluation report by Dr. Baskin dated June 28, \n2021,  provided  that  the  claimant  had  significant  memory  issues  and    it  was  difficult  to \nknow how much of the problem was related to the workers’ compensation injury of August \n21, 2015, “versus other conditions of aging.”  Dr. Baskin recommended a non-contrasted \nMRI  of  the  brain  that  would  possibly  provide  the  etiology  of  the  claimant’s  ongoing \ncognitive issues. (Cl. Ex. 1, P. 90-91)   \n  The claimant received multiple weeks of physical therapy starting on July 7, 2021, \nwith the final visit on August 25, 2021.  The final report provided that the claimant attended \n\nJOHNSON – G506453 \n \n14 \n \nten (10) total sessions and made good progress during the structured therapy sessions.  \nThe patient had questionable carry-over outside of the therapy settings, putting the patient \nat risk for decline.  The patient had exhibited moderate to severe memory and processing \ndeficits affecting his problem solving. (Cl.Ex.1, P. 93-108) \n It has been noted that the claimant sent an email on Tuesday, May 2, objecting to \nthe respondent calling Teddy Townsend as a witness, contending that Mr. Townsend’s \nname was not provided earlier and timely in the discover process. (Cl. Ex. 3, P. 1) \n The respondent also submitted multiple medical records.  The claimant presented \nto Tonya C. Roberts, APRN, on November 19, 2015, with the chief complaint being a right \neye  injury  after  the  claimant  had  injured  his  eye  after  hitting  the  edge  of   a  pallet.  \nIt  appeared  that  he  was  diagnosed  with  pink  eye  disease  of  the  right eye. (Resp. \nEx. 1, P. 1-2)   \n   The  respondents  also  provided  reports  from  Reaper  Physical  Therapy  from \nNovember 19, 2015, up through January 19, 2016.  (Resp. Ex. 1, P 3-19)  In addition, the \nrespondents provided a  report from  the Arkansas Specialty  MRI  Center  dated  July 10, \n2017,  of  an  MRI  of  the  cervical  spine.    The  report  provided  that  there  was  disc \ndegeneration  with mild  disc bulges at  C5-6 and  C6-7  with moderate  bilateral foraminal \nstenosis at C5-6 and C6-7. (Resp. Ex. 1, P. 20)  The respondents also provided a letter \nfrom  the  employer  that  the  claim  was  accepted  as  compensable.    (Resp.  Ex. 2,  P.  2)  \nFinally, it was noted that the respondents listed Teddy Townsend as a witness by an email \ndated may 2, 2022, which was seven days prior to the hearing.  (Resp. Ex. 3, P 1)  \nDISCUSSION AND ADJUDICATION OF ISSUES \n \n\nJOHNSON – G506453 \n \n15 \n \nThe claimant objected to the testimony of Teddy Townsend who was listed as a \nwitness  seven  (7)  days  prior  to  the  hearing.    It  is  noted  that  the  claimant had  filed  an \namended response to the Prehearing Questionaire, with the claimant’s counsel believing \nit was filed on May 1, 2021, and which has been made part of the record.  Mr. Townsend’s \ntestimony helped clarify the number of miles that the claimant had driven after returning \nto work in 2018 and 2019, and  the testimony  helped to clarify the work of the claimant \nand the applicable payroll records.  It is well known that the Commission is given broad \ndiscretion in the admission of evidence and shall use a liberal interpretation in regard to \nthe admission of evidence, conducting the hearing in a manner as will best ascertain the \nrights of the parties. Ark. Code Ann. §11-9-705(a).  Consequently, the testimony of Mr. \nTownsend was admitted.   \nThe claimant’s injuries to his right hip and neck on August 21, 2015, when he fell \nfrom his truck while attempting to remove an antenna, were accepted by the respondents \nas compensable, and the claimant received medical treatment which consisted of multiple \nvisits to the doctor, significant physical therapy, and surgery to his neck.  In addition, he \nreceived  an  eleven  percent  (11%)  disability  rating  to  the  body  as  a  whole  due  to  the \naccepted compensable neck injury which had been paid in full at the time of the hearing.  \nThe claimant also contends he suffered a head injury and an injury to his back at \nthe time of the accident which should be found to be compensable and he is entitled to \nreasonable and necessary medical for these injuries, in addition to PPD in regard to his \nback injury from August 21, 2015, to a date to be determined.  The claimant also contends \nhe is entitled to permanent and total disability or, in the alternative, wage-loss along with \nattorney fees.  The respondents contend that claimant’s problems related to his head and \n\nJOHNSON – G506453 \n \n16 \n \nback are not work-related and compensable and there are no objective findings in regard \nto these claims.   \nThe claimant was born on July 11, 1948, and was driving a truck for the respondent \nwhen he attempted to remove an antenna from the truck on August 21, 2015, fell in the \nprocess, and was taken to Dr. Warnock on the day of the accident. The medical report \nprovided  the  claimant’s  ear had  an  open  wound  which  was  stitched  up.    The  claimant \nreturned to Dr. Warnock on August 22, 2015, and the report mentioned a bruise over the \nright deltoid, good range of motion of the hip and shoulder, no bruise over the buttock, \nand additionally mentioned a head injury.  The claimant then returned to Dr. Warnock on \nAugust 25, 2015, and a mental status change was noted along with numbness of the right \nhip.  A CT scan of the brain was ordered which provided a negative scan of the brain and \nmaxillary sinusitis.  The claimant then returned to Dr. Warnock on September 11, 2015, \nand the report provided that the mental status had resolved.  Claimant received physical \ntherapy and Dr. Warnock diagnosed him with cervicalgia with a limited range of motion \non February 2, 2016.  The claimant stated that he was still suffering from headaches and \npain in turning his head to the left. \nThe  claimant  was  referred  to  Dr.  Seale  on  March  7,  2016,  who  assessed \ndegenerative disc disease at the C5-6 and severe degenerative disc disease at L5-S1.  \nOn  May  9,  2016,  the  claimant  received  an  MRI  of  the  spine  which  confirmed  the \ndegenerative disc disease.  Dr. Seale issued an impairment rating of zero percent (0%) \nopining that there were no objective findings of injury and the problems were pre-existing.  \nThe  claimant  returned  to  Dr.  Seale  on  February  13, 2016,  and  the  report  provided  the \nclaimant had a full range of motion without pain or tenderness.  The claimant continued \n\nJOHNSON – G506453 \n \n17 \n \nto have issues and on July 31, 2017, the claimant received an epidural steroid  shot by \nDr. Walker for cervical radiculopathy, and the report again provided that the problem was \ndue to disc degeneration at the C5-7. \nDr. Seale issued an opinion on October 18, 2017, that was clarified on December \n12, 2017, that the severe neck pain was from a work-related injury and, “therefore it is \nwithin a certain degree of medical certainty that at least 51% of the patient’s symptoms \nare directly related to the work injury.”  Dr. Seale performed an anterior cervical fusion at \nthe C5, C6, and C7 levels with a post operative diagnosis of degenerative disc disease \nand stenosis at the C5-6 and C6-7 levels.  On July 11, 2018, Dr. Seale applied an eleven \npercent (11%) impairment rating to the neck injury based upon the cervical fusion, and \nstated the claimant could return to work. \nThe claimant returned to work and drove approximately 55,000 plus miles in 2018 \nand 77,975 miles in 2019, after passing two (2) DOT physicals.  The claimant contended \nhe still suffered from back pain and memory issues and a Neuropsych consult was then \nperformed by Dr. Johnson, PHD, on March 12, 2020, when the claimant was seventy-one \n(71)  years  of  age, and  who  found  that  the  claimant  suffered  from  severe  short-term \nmemory deficits and was one hundred percent (100%) disabled at the time with no work \nrecommended.  \nAn  independent  medical  exam  was  performed  by  Dr.  Barry  Baskin  on  May  27, \n2021.    The  exam  provided  that  the  claimant’s  chief  complaint  was  neck pain,  neck \nstiffness, right ear pain, headaches, poor balance, low back pain, and bilateral hip pain, \nwith severe memory deficits.  The opinion referred to Dr. Seale’s findings that although \nthe claimant had some pre-existing issues in regard to  his cervical spine, that fifty-one \n\nJOHNSON – G506453 \n \n18 \n \npercent (51%) of the claimant’s neck problems were related to the work injury.  Dr. Baskin \nalso opined that claimant’s cognitive decline was more difficult to relate to the accident, \ndue to the interval of time between the accident and the time of his exam, the lack of an \nMRI of the brain, and the claimant’s age.  He also interpreted Dr. Johnson’s report to find \nbased upon the claimant’s history, that claimant’s cognitive issues were not related to the \nwork-related injury.      \nIn regard to the issues of compensability of the claimed back and head injuries, \nthe claimant has the burden of proving, by a preponderance of the evidence, that he is \nentitled  to  compensation  benefits  for  these  injuries  under  the  Arkansas  Workers’ \nCompensation  Law.    In  determining  whether  the  claimant  has  sustained  his  burden  of \nproof, the Commission shall weigh the evidence impartially, without giving the benefit of \nthe doubt to either party.  Ark. Code Ann.  §11-9-704.  Wade v. Mr. Cavananugh’s, 298 \nArk.  364,  768  S.W. 2d  521  (1989).    Further, the  Commission  has  the  duty  to  translate \nevidence  on  all  issues  before  it  into  findings  of  fact.   Weldon  v.  Pierce  Brothers \nConstruction Co., 54 Ark. App. 344, 925 S.W.2d 179 (1996). \nUnder  workers’ compensation  law  in  Arkansas,  a  compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability  must  be  stated  within  a  degree of medical  certainty. Smith-\nBlair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d 560 (2002).  Speculation and conjecture \ncannot substitute for credible evidence.  Liaromatis v. Baxter County Regional Hospital, \n95 Ark. App. 296,  236  S.W.3d 524  (2006).  More  specifically,  to prove a  compensable \ninjury,  the  claimant  must  establish  by  a  preponderance  of  the  evidence:  (1)  an  injury \narising  out  of  and  in  the  course  of  employment;  (2)  that  the  injury  caused  internal  or \n\nJOHNSON – G506453 \n \n19 \n \nexternal  harm  to  the  body  which  required  medical  services  or  resulted  in  disability  or \ndeath; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. \n§11-9-102  (16)  establishing  the  injury  and  (4)  that  the  injury  was  caused  by  a  specific \nincident and identifiable by time and place of occurrence.  If the claimant fails to establish \nany of the requirements for establishing the compensability of the claim, compensation \nmust be denied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d \n876 (1997). \nAn  injury  for  which  the  claimant  seeks  benefits  must  be  established  by medical \nevidence supported by objective findings which are findings that cannot come under the \nvoluntary  control  of  the  patient. Ark.  Code  Ann. § 11-9-102  (16).  It  is  also  important  to \nnote that the claimant’s testimony is never considered uncontroverted.  Lambert v. Gerber \nProducts Co.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  \nHowever, under  Arkansas  Workers’  Compensation  law,  it  is also  clear  that  an \nemployer  takes  the  employee  as it  finds  him  and  employment  circumstances  that \naggravate preexisting conditions are compensable.  Heritage Baptist Temple v. Robinson, \n82 Ark. App. 460, 120 S.W.3d 150 (2003). \nFurther, a claimant is not required in every case to establish the casual connection \nbetween a work-related incident and an injury with an expert medical opinion.  See, Wal-\nmart Stores, Inc. v. VanWagner, 337 Ark. 443, 990 S.W.2d 522 (1999).  Arkansas courts \nhave  long  recognized  that  a  causal  relationship  may  be  established  between  an \nemployment-related  incident  and  a  subsequent  physical  injury  based  on  evidence  that \nthe injury manifested itself within a reasonable period of time following the incident so that \nthe  injury  is  logically  attributable  to  the  incident,  where  there  is  no  other  reasonable \n\nJOHNSON – G506453 \n \n20 \n \nexplanation for the injury.  Hail v. Pitman Construction Co. 235 Ark. 104, 357 A.W.2d 263 \n(1962) \nA compensable injury is one that was the result of an accident that arose in the \ncourse of his employment and that it grew out of or resulted from the employment.  See, \nMoore v. Darling Store Fixtures, 22 Ar. App 21, 732 S.W.2d 496 (1987)  In regard to the \nclaimed back injury, the medical records clearly provide that the claimant suffered from \nsevere degenerative disc disease at L5-S1.  Dr. Wornock, the claimant’s initial treating \nphysician never opined that the claimant’s back problems were work-related.  Dr. Seale, \nwho could be considered the primary treating physician, opined that the neck or cervical \nproblems were at least fifty-one (51%) related to the work injury, but never made such a \nfinding  in  regard  to  the  remainder  of  the  back  even  after  treating  the  claimant  for  an \nextended period of  time  and performing  surgery  on  the  claimant’s neck.  The  claimant \nreturned to the same job for two (2) years.  Based upon the available evidence in the case \nat bar, there is no alternative but to find that the claimant has failed to satisfy the burden \nof  proof  to  show  that  his  back  claim  is  compensable under  the  Arkansas  Workers’ \nCompensation Act and that consequently, the question of medical and permanent partial \ndisability as well as attorney fees in regard to the back are moot. \nIn regard to the claim of a head injury, the claimant was born on July 11,1948, and \nboth  Dr.  Johnson  and  Dr.  Baskin  made  no  finding  in  regard  to  the  claimant’s  memory \nissues being related to the work injury of August 21, 2015.  For that matter, no treating \nphysician opined that the memory issue was related to the work injury.  The claimant was \ninjured on August 21, 2015, and both Dr. Baskin and Dr. Johnson inferred  that it would \nbe difficult to make a finding of a connection between the memory issue and the accident \n\nJOHNSON – G506453 \n \n21 \n \ndue to the passage of time of approximately six (6) years, the lack of an MRI of the brain, \nand the claimant’s age.  Consequently, there is no alternative but to find that the claimant \nhas failed to satisfy the required burden of proof that his head injury is compensable under \nthe Arkansas Workers’ Compensation Act, and that consequently all other issues relating \nto the head injury are moot.  \nIn  regard  to  the  issue  of  permanent  and  total  disability  or,  in  the  alternative, \nwage-loss,  permanent  total  disability  means  the  inability,  because  of  a  compensable \ninjury  or  occupational  disease  to  earn  any  meaningful  wages  in  the  same  or  other \nemployment.  Ark. Code Ann.§ 11-9-519(e)(1).  The burden of proving the inability to earn \nany meaningful wages is on the employee. Ark. Code Ann. § 11-9-519(e)(2).  Permanent \nbenefits  may  be  awarded  only  if  the  compensable  injury  was  the  major  cause  of  the \ndisability or impairment.  Ark. Code Ann. § 11-9-102(4)(F)(ii)(a).  Here, the claimant, after \npassing two (2) DOT physicals, returned to the same occupation in 2018 and 2019, again \ndriving a truck long-distance.  The evidence provides that sufficient memory issues later \ndeveloped and that he was found to be one hundred percent (100%) disabled due to the \nfact  it  was  no  longer  safe  for  him  to  drive.    There  are  no  evidentiary  findings  that  the \nmemory  issues were  related  to  the  accident  on  August  21,  2015.    The  issue  was \ndiscussed in the reports of Dr. Johnson and Dr. Basin.   Any such finding of permanent \ntotal disability would be based upon speculation.  Consequently, there is no alternative \nbut to find that the claimant has failed to satisfy the required burden of proof that the claim \nfor  permanent  and  total  disability  is  compensable  under  the  Arkansas  Workers’ \nCompensation Act. \n\nJOHNSON – G506453 \n \n22 \n \nIn the alternative, the claimant contends that he is entitled to wage-loss disability.  \nThe extent of disability is a question of fact for the Commission.  Cross v. Crawford County \nMemorial Hospital, 54 Ark. App. 130, 923 S.W.2d 886 (1996).  Factors to be considered \nin accessing wage-loss include the claimant’s age, education, post injury income, work \nexperience,  medical  evidence,  and  other  matters  that  may  reasonably  be expected  to \naffect the workers’ future earning power such as motivation, post injury income, bona fide \njob offers, credibility or voluntary termination.  Glass v. Edens, 233 Ark. 786, 346 S.W.2d \n685 (1961); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 s.W.2d 276 (1982);  \nHope School District v. Charles Wilson, 2011 Ark. App. 219, 382 S.W.3d 782 (2011).  The \naward of wage-loss is not a mathematical formula, but a judicial determination based on \nthe  Commission’s  knowledge  of  industrial  demands,  limitations,  and  requirements.  \nHenson v. General Electric, 99 Ark. App. 129, 257 s.W.3d 908 (2008)   \nPursuant to Ark. Code Ann. §11-9-522(b)(1), when a claimant has an impairment \nrating to the body as a whole, the Commission has the authority to increase the disability \nrating  based  upon  wage-loss  factors.    The  wage-loss  factor  is  the  extent  to  which  a \ncompensable  injury  has  affected  the  claimant’s  ability  to  earn  a  livelihood.   Emerson \nElectric v. Gaston, 75 Ark. App 232, 58 S.W.3d 848 (2001).  Objective and measurable \nphysical findings which are necessary to support a determination of “physical impairment” \nor  anatomical  disability  are  not  necessary  to  support  a  determination  of  wage-loss.  \nArkansas Methodist v. Adams, 43 Ark. App. 1, 858 S.W.2d (1993).  To be entitled to any \nwage-loss disability benefit in excess of a permanent impairment rating, a claimant must \nfirst  prove  that  he  or  she  sustained  a  permanent  physical  impairment  as  a  result  of  a \n\nJOHNSON – G506453 \n \n23 \n \ncompensable  injury.   Wal-Mart  Stores,  Inc.  v.  Connell,  340  Ark.  475,  10  S.W.  3d  882 \n(2000). \nHere the claimant suffered a compensable neck injury and was awarded an eleven \npercent (11%) rating to the body as a whole.  The claimant was nearly sixty-seven (67) \nyears  old  at  the  time  of  the  work-related  accident  and  approximately  seventy-five (75) \nyears  old  at  the  time  of  the  hearing.    After  treatment  for  the  neck  injury,  the  claimant \nreturned to work for another two (2) years after passing two (2)  DOT physicals and driving \nin excess of 55,000 miles each year.  The claimant was evaluated in regard to his memory \nissues after driving for two (2) years by Dr. Johnson and also by Dr. Baskin.  Dr. Johnson \nfound  that  the  claimant  was  one  hundred  percent  (100%)  disabled  due  to  severe \nshort-term memory deficits.  Both Dr. Johnson and Dr. Basking, who performed an IME, \nfelt that there were multiple factors that could have caused the memory loss and never \nopined that the cause was due to the claimant’s compensable injury six (6) years prior.  \nConsequently,  there  is  no  alternative  but  to  find  that  the claimant’s  proof has  failed  to \nshow  that  the  compensable  injury  was  in  fact  the  cause  of  the  memory  loss  and \nconsequently the claimant has failed to satisfy that he is entitled to wage-loss.            \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, there is no alternative but to find that the claimant has failed to satisfy the \nrequired burden of proof that the claim for his back and head injury are compensable and \nconsequently,  the  claim  for  PPD  in  regard  to  the  back  injury  is moot as  well  as  the \nquestion  of  medical  and  attorney  fees  for  both  injures.    Additionally,  the  claimant  has \nfailed to satisfy the required burden of proof for permanent and  total disability and also \n\nJOHNSON – G506453 \n \n24 \n \nwage-loss, and consequently attorney fees.  The respondents are ordered to pay the cost \nof the transcript forthwith. \nIT IS SO ORDERED. \n \n        ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":45943,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G506453 KENNETH A. JOHNSON, EMPLOYEE CLAIMANT VS. LAND O’FROST, EMPLOYER RESPONDENT LAND O’FROST, INC. CARRIER PMA MANAGEMENT CORP, TPA RESPONDENT OPINION FILED JUNE 20, 2023 Hearing before Administrative Law Judge, James D. Kennedy, on the 9 TH day of May,...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["back","hip","neck","shoulder","cervical","lumbar"],"fetchedAt":"2026-05-19T23:06:34.040Z"},{"id":"alj-H202952-2023-06-19","awccNumber":"H202952","decisionDate":"2023-06-19","decisionYear":2023,"opinionType":"alj","claimantName":"Sonja Riddle","employerName":"Friendship Community Care, Inc","title":"RIDDLE VS. FRIENDSHIP COMMUNITY CARE, INC. AWCC# H202952 JUNE 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/RIDDLE_SONJA_H202952_20230619.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RIDDLE_SONJA_H202952_20230619.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H202952 \n \nSONJA RIDDLE, Employee                                                                             CLAIMANT \n \nFRIENDSHIP COMMUNITY CARE, INC., Employer                                RESPONDENT                        \n \nATA WC TRUST/RISK MANAGEMENT RESOURCES, Carrier               \nRESPONDENT                                                                                     \n \n \n OPINION FILED JUNE 19, 2023 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   GREGORY   K.   STEWART   in \nRussellville, Pope County, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney, Little Rock, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 18, 2023, the above captioned claim came on for hearing at Russellville, \nArkansas.  A pre-hearing conference was conducted on  February 15, 2023 and a pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The claimant sustained a compensable injury to her right knee on April 2, 2021. \n 3.   The claimant was earning an average weekly wage of $393.95 which would \nentitle her to compensation at the weekly rates of $263.00 for total disability benefits and \n$197.00 for permanent partial disability benefits. \n\nRiddle – H202952 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s left knee on April 2, 2021. \n2.    Compensability of injury to claimant’s left arm on October 28, 2021. \n3.    Related medical. \n4.    Temporary total disability benefits. \n5.    Attorney fee. \n6.    Notice. \nAt the time of the hearing claimant clarified that she is requesting temporary total  \ndisability benefits from October 13, 2021 through a date yet to be determined. \n The claimant contends  that on April 2, 2021, she was in the scope and course of \nher  employment  when  she  was  unloading  a  sick  child  from  a  van  transport  when she \nslipped  and  fell,  fracturing  her  right  leg.    The  respondents  accepted the  claim  as \ncompensable and paid for her benefits.  Claimant felt pain in her left knee at the time of \nthe fall, but during the claimant’s authorized physical therapy treatments for her right \nknee, her left knee and ankle began to really bother her.  She complained of left knee \npain, but the left knee injury was denied in its entirety.  Claimant treated on her own with \nDr. Nguyen who diagnosed her with osteoarthritis of the left knee and post patellofemoral \nrealignment.  An MRI revealed a left knee tibial plateau subchondral fracture.  On October \n28, 2021, claimant lost the balance of her crutches and fell.  Claimant reinjured her knee \nand injured her left arm.  On October 29, 2021, Dr. Nguyen performed another surgery. \nDr. Nguyen causally related her left injury to her workers’ compensation claim.  Claimant \ncontends  she  sustained  compensable  injuries,  that  she  sustained  a  compensable \nconsequence and that  she  is  entitled  to medical  benefits,  ttd, and an  attorney  fee.    All \n\nRiddle – H202952 \n \n3 \n \nother issues are reserved. \nThe  respondents  contend  that  claimant  did  not  suffer  a  compensable  left  knee \ninjury or left wrist injury on or about April 2, 2021.  Respondents contend that claimant did \nnot  suffer  a  compensable  consequence,  either.    Lastly,  respondents  contend that \nclaimant did not provide notice of any left knee or left wrist injury until her Form AR-C was \nfiled on April 15, 2022 and in light of that, respondents should not be liable for benefits in \nthe event compensability is found until they received actual notice of a claimed injury. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non  February  15,  2023  and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.   Claimant has met her burden of proving by a preponderance of the evidence \nthat her left knee fracture and her left wrist fractures are compensable consequences of \nher right knee injury of April 2, 2021. \n 3.      Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s left knee and left wrist injuries; this \nincludes surgery performed by Dr. Nguyen.   \n 4.   Claimant has proven by a preponderance of the evidence that she is entitled \n\nRiddle – H202952 \n \n4 \n \nto temporary total disability benefits from October 13, 2021 and continuing through April \n20, 2022. \n 5.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n 6.   Claimant’s request for benefits is not barred by the provisions of A.C.A. §11-9-\n701 regarding notice. \nFACTUAL BACKGROUND \n Claimant is a 58-year-old woman who graduated from high school and attended \ntwo  semesters  of  college  at  Arkansas  Tech  University.    She  also  obtained  a  clerical \ndegree from Petit Jean Vo-Tech and is a licensed massage therapist. \n Claimant has a history of pre-existing problems with her knees.  She testified that \nin 1985 or 1986 she was walking across her living floor when her left kneecap popped out \nof  place  resulting  in  a  patella  dislocation  and  surgery.    After  two  years,  a  second \nprocedure  was  performed  with  her  patella  being  moved  into  place  and secured  with  a \nscrew.    She  testified  that  she  received  a  full  release  and  has  not  had  any  additional \ntreatment on her left knee in more than 20 years.   Claimant also testified that she had a \nwork-related  injury  to her  right  knee  in  2004  which  resulted  in  surgery  by  Dr.  Brown  in \nRussellville. \n Claimant began working for respondent in March 2012 and performed two primary \nduties.  First, she helped in the classroom as a teacher’s aide.  Her duties included feeding \nchildren; changing diapers; keeping refrigerator logs and safety inspections; and playing \nwith the children.  She also had a second duty of “van rider”, riding in the van when taking \nthe children somewhere.   \n\nRiddle – H202952 \n \n5 \n \n On  April  2,  2021  claimant  had  been  performing  the  van  rider  job  when the  van \npulled up to the school.  She opened the side door of the van for the children to exit when \none of them got sick and vomited on himself.  She described her accident as follows: \n  There wasn’t very much space between the front seat and \n  him and I didn’t want to lean in, you know, lean across and \n  get junk all over me.  So I kind of leaned over and told the \n  bus driver I need some gloves and some wipes to clean  \n  him up. \n \n  And while she was digging around and getting all of that, \n  I was going to go back and get some more children off the \n  bus and when I did, somehow or another I lost my balance \n  on that step.  And I was able to grab the handle that was \n  right by the door and the momentum twisted me around to \n  where I was still on that step and I didn’t fall to the ground, \n  but that momentum twisted me and I was holding on, \n  basically, through my shoulders and my knees and leg \n  and my feet.  And it was just so that I felt a pop in my \n  right leg and that’s when I kind of - - I kind of yelped or \n  hollered. \n \n \n Following  her  injury,  claimant  received medical  treatment  from  Kathryn  Pledger, \nAPRN, who diagnosed claimant with acute pain of the right knee.  Her treatment included \nphysical therapy and an MRI scan on May 13, 2021, which revealed a comminuted, non-\ndisplaced fracture of the right lateral tibial plateau.  After the MRI scan, claimant began \ntreating with Dr. Stambough, an orthopedic surgeon, who opined that the fracture would \nheal on its own.  He prescribed the use of crutches, seated work duty, discontinuation of \nphysical therapy, and an injection in the right knee.   \n In  his  report  of  June  17,  2021,  Dr.  Stambough  indicated  that  the  injection  had \nhelped tremendously and that claimant could put full weight on her knee.  He indicated \nthat claimant could perform 75% of her work activities for two weeks and then she could \n\nRiddle – H202952 \n \n6 \n \nreturn to full duty. Since that time claimant has not had any additional issues or medical \ntreatment for her right knee.  Respondent accepted the right knee injury as compensable \nand paid compensation benefits. \n Before the visit with Dr. Stambough on June 17, 2021, claimant had been seen by \nShannon Golden, APRN, on May 27, 2021 and indicated that she was having complaints \ninvolving her left knee as well:  \n  c/o pain in left knee, having to use crutches due to \n  fracture in right knee. \n \n \n Claimant also mentioned the left knee problems to Dr. Stambough at the time of \nher visit on June 17, 2021: \n  She actually says now her left side on the knee is \n  becoming more bothersome because she had to \n  change how she walked.  She said this was aggra- \n  vated not related to work related injury, but it is the \n  only thing really holding her back now.  She would \n  like to be seen for this separately outside of work \n  comp claim.   \n \n \n Claimant denies having informed Dr. Stambough that the left knee was not work \nrelated  but  testified  that  she  did  not  tell  him  that  it  was  or  was  not  work  related.  \nRespondent did not accept liability for the left knee and claimant sought medical treatment \non her own from Dr. Larry Nguyen, orthopedic surgeon.  Dr. Nguyen ordered an MRI scan \nwhich revealed a left lateral tibial plateau subchondral fracture.   \n Dr. Nguyen initially treated claimant conservatively with a brace and crutches.  He \nalso  allowed  claimant  to  continue  working  for  respondent  at  a  sit  down  job.    Claimant \ntestified that she had returned to work for respondent and that on October 12, 2021, she \n\nRiddle – H202952 \n \n7 \n \nwas  sitting on  a  little shelf instead of sitting on the floor and “when I stood up, it really \ndidn’t buckle, but it felt like somebody had stabbed me in the back of the knee with an \nicepick.”   \n It should be noted that claimant did not file a new claim for this incident because \nshe believed it was a continuation of the left knee problems she was already experiencing.  \nClaimant returned to Dr. Nguyen on October 15, 2021, and he noted that claimant’s knee \nhad buckled when she got up at work.  At that time he recommended surgery on the left \nknee which he performed on October 25, 2021.   \n After her surgery, claimant was on crutches and was in her kitchen on October 28, \n2021, when the crutches caused her to fall.  As a result of the fall, claimant was diagnosed \nwith  a  left  wrist  fracture  and  underwent  surgery  for  that  condition  by  Dr.  Nguyen  on \nOctober 31, 2021.   \n Since her left knee and left wrist surgeries, claimant has continued to treat with Dr. \nNguyen.    This  treatment  has  included  the  use  of  a  wrist  brace  and  a  cane  as  well as \nphysical therapy.  In his final report dated May 20, 2022, Dr. Nguyen noted that claimant \nwas requesting a full release in order to return to work.   \n Claimant has filed this claim contending that she suffered compensable injuries to \nboth her left knee and left wrist as a result of the right knee injury.  She requests payment \nof medical expenses, temporary total disability benefits, and an attorney fee.  It should be \nnoted  that  in  addition  to  the  left  knee  and  left  wrist  there  are  complaints  noted  in the \nmedical records of problems with the left ankle and hip.  These were not listed as issues \nfor the hearing.  At the hearing, the following discussion occurred: \n \n\nRiddle – H202952 \n \n8 \n \n   THE COURT:  Okay.  You had some discussion \n  there about the left ankle, but I don’t have that down as \n  an issue; right? \n \n   MS. WOOD:  The hip as well, Judge.  We are not  \n  litigating the hip or the ankle; are we? \n \n   MS. YORK:  It was predominantly the knee.  I  \n  think we talked about it being left extremity in the pre- \n  hearing telephone conference, but it was really the \n  knee from the onset and that that caused other \n  problems. \n \n Based on this discussion and the fact that the left ankle and left were not listed as \nissues, they will not be discussed in the adjudication portion of this opinion. \n \nADJUDICATION \n Claimant contends that in addition to her compensable right knee injury, she also \nhas compensable injuries to her left knee and left wrist.  Initially, I do not find that claimant \nsuffered a compensable injury to her left knee on April 2, 2021.  Claimant testified that \nthe only place she had pain that day was in her right knee.  She also admitted on cross \nexamination  that  she  did  not  feel  a  pop  in  her  left  knee  on  April  2,  2021.    Claimant \ncompleted various forms as a result of the April 2 injury and in none of those forms did \nshe mention any complaints or injury to her left knee.  Complaints involving her left knee \ndo not appear in the medical records until her visit with APRN Golden on May 27, 2021, \nmore than a month after the accident.   \n Accordingly, I do not find that she suffered a compensable injury to her left knee \non April 2, 2021.  However, I do find that claimant’s left knee complaints are compensable \nas a compensable consequence of her right knee injury.   \n\nRiddle – H202952 \n \n9 \n \n If  an  injury  is  compensable, every  natural  consequence of  that  injury  is  likewise \ncompensable.  Air Compressor Equipment Company v. Sword, 69 Ark. App. 162, 11 S.W. \n3d 1 (2000).  The test is whether a causal connection between the two episodes exists.  \nSword, supra; Jeter v. McGinty Mech., 62 Ark. App. 53, 968 S.W. 2d 645 (1998).  The \nexistence  of  a  causal  connection  is  a  question  of  fact  for  the  Commission.  Koster  v. \nCustom  Pak  &  Trissel,  2009  Ark.  App.  780.    It  is  generally  a  matter  of  inference,  and \npossibilities  may  play  a  proper  and  important  role  in  establishing  that  relationship.  \nOsmose Wood Preserving v. Jones, 40 Ark. App. 190, 843 S.W. 2d 875 (1992).  A finding \nof causation need not be expressed in terms of a reasonable degree of medical certainty \nwhere supplemental evidence supports the causal connection.  Koster, supra; Heptinseall \nv. Asplundh Tree Expert Company, 84 Ark. App. 215, 137 S.W. 3d 421 (2003).   \n I find based upon the evidence presented that claimant’s left knee complaints and \nmore specifically her left knee fracture are causally related to her right knee injury.  In the \nreport from APRN Golden dated May 27, 2021, it is noted: \n  c/o pain in left knee, having to  use crutches due to \n  fracture in right knee.  (Emphasis added.) \n \n \n Likewise, in Dr. Stambough’s note dated June 17, 2021, he stated: \n  She actually says now her left side on the knee is \n  becoming more bothersome because she had to \n  change how she walked.  She said this was aggra- \n  vated not related to a work related injury... \n  (Emphasis added.) \n \n \n While Dr. Stambough’s report went on to indicate that claimant wanted to be seen \nseparately with this condition outside her workers’ compensation claim, an assertion \n\nRiddle – H202952 \n \n10 \n \nwhich she denies, the significance of Dr. Stambough’s report is that the left knee problems \nwere attributed to claimant’s change in the way she walked due to her right knee injury. \n This causal connection is further reflected in the initial therapist’s note for physical \ntherapy relating to claimant’s left knee on July 9, 2021, which states: \n  Pt presents with L knee pain since May 2021.  Pt. \n  reports having her R knee operated on, and when \n  attending pt for this, her L knee began to hurt. \n  (Emphasis added.) \n \n \n Just  six  days  later  on  July  15,  2021,  claimant  was  evaluated  by  Cynthia  Day, \nAPRN,  whose  report  of  that  date  indicated  that  claimant  was  complaining  of left  knee \npain: \n  .... not sure what is causing, started at the end of April \n  when she hurt the right knee and started PT.   \n   \n     *** \n  Patient complaining of pain in left knee began two weeks \n  after starting physical therapy for right knee injury at \n  work; states pain since end of April.... \n \n \n Thereafter, claimant was evaluated by Dr. Nguyen on July 21, 2021.  Notably, Dr. \nNguyen’s report indicates that claimant twisted both her right and left knee on April 2, \n2021.  As previously noted, this history is not supported by claimant’s testimony or the \nmedical records up through that date.  Nevertheless, Dr. Nguyen ordered an MRI scan of \nclaimant’s left knee and in his report of April 11, 2021 stated that claimant’s MRI scan \nrevealed a left lateral tibial plateau subchondral fracture and that: \n  Her bones are thin, she had a work-related injury \n  where she injured her right knee.  She developed \n  stress fractures of the left knee and potentially left \n  ankle.  I believe this is a direct result of her work- \n\nRiddle – H202952 \n \n11 \n \n  related injury.  Either from direct trauma from the \n  fall or compensatory gait.  (Emphasis added.) \n \n In  a  letter  from  Dr.  Nguyen to claimant’s attorney dated February 13, 2022, Dr. \nNguyen addressed the cause of claimant’s left knee fracture. \n  I believe within a reasonable degree of medical  \n  certainty, that she did have some pre-existing \n  left knee arthrosis and osteopenia.  Her left knee \n  pain was aggravated/exacerbated by the work- \n  related injury 4/2/2021 as demonstrated by the \n  stress fracture/subchondral edema changes noted \n  on her MRI scans.  I believe her left knee lateral \n  tibial plateau subchondral fracture and left distal \n  tibial stress fracture are directed related to the work \n  injury 4/2/2021.   (Emphasis added)  \n \n \n In response to Dr. Nguyen’s opinion respondent had claimant’s medical records \nand her deposition reviewed by Dr. Kirk Reynolds, an orthopedic surgeon.  Dr. Reynolds \nauthored a report dated May 30, 2023.  In his report of that date with respect to claimant’s \nleft knee he stated: \n  With regards to her left knee pathology.  It is my \n  professional medical opinion that, at most, this \n  represents an acute exacerbation of a chronic \n  underlying condition.  (Emphasis added.) \n \n \n Dr.  Reynolds  then  goes  on  to  indicate  that  he  does  not believe  that  the  surgery \nperformed  by  Dr.  Nguyen  was  indicated.    Based  upon  that,  it  was  his  opinion  that \nclaimant’s left knee pathology and the left knee surgery were less than 51% directly or \ncausally related to the twisting injury to her right knee on April 2, 2021.  However, claimant \ndoes not have to prove that her left knee pathology and the left knee surgery were 100% \nrelated to her right knee injury of April 2, 2021.  Instead, claimant must simply prove that \n\nRiddle – H202952 \n \n12 \n \nthere  is  a  causal  connection  between  the  two  episodes  and  the  existence  of  a  causal \nconnection  is  a  question  of  fact  for  the  Commission.    Here,  based  upon  the  evidence \npresented, I find that claimant has met her burden of proof.  The medical records from \nnumerous providers indicate that claimant began complaining of pain in her left knee due \nto the use of crutches and to an altered gait.  This is reflected in the medical reports of \nAPRN  Golden,  APRN  Day,  the  physical  therapist  report,  the  medical  record  of  Dr. \nStambough, and finally the medical records of Dr. Nguyen.  Furthermore, Dr. Nguyen has \nspecifically opined that claimant’s left knee complaints were aggravated or exacerbated \nby  the  work  related  injury  of  April  2.    Finally,  even  Dr.  Reynolds  acknowledges  that \nclaimant’s left knee condition was aggravated by the right knee injury.   \n Accordingly, based upon the foregoing evidence, I find that claimant has met her \nburden  of  proving  by  a  preponderance  of  the  evidence  that  her  left knee  fracture  is  a \ncompensable consequence of her right knee injury. \n Obviously,  claimant  did  not  injure  her  left  wrist  on  April  2,  2021,  but  instead \nfractured it when she fell in her kitchen while using crutches as a result of the left knee \ninjury.    Having  found  that  claimant’s  left  knee  fracture  and  subsequent  surgery  was  a \ncompensable  consequence  of  her  original  compensable  injury,  I  likewise  find  that  the \ninjury  to  her  left  wrist  which  resulted  from  the  use  of  crutches  following  her  left knee \nsurgery is also a compensable consequence. \n In short, I find that claimant has met her burden of proving by a preponderance of \nthe evidence that her left knee and left wrist fractures were compensable consequences \nof her right knee injury.  Therefore, respondent is liable for payment of all reasonable and \nnecessary   medical   treatment   provided   in   connection   with   those   compensable \n\nRiddle – H202952 \n \n13 \n \nconsequences. \n The  next  issue  for  consideration  involves  claimant’s  request  for  temporary  total \ndisability benefits beginning October 13, 2021, and continuing through a date yet to be \ndetermined.  The injury to claimant’s left knee and her left wrist are scheduled injuries.  \nAn employee who has suffered a scheduled injury is entitled to temporary total disability \nbenefits during their healing period or until they return to work regardless of whether they \nare  totally  incapacitated  from  earning  wages.   Wheeler  Construction  Company  v. \nArmstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).  The claimant’s “failure to return to \nwork must be causally related to the injury.”  Foster v. Tyson Poultry, 2013 Ark. App. 172, \n426 S.W. 3d 536 citing Fendley v. Pea Ridge School District, 97 Ark. App. 214, 216-17, \n245 S.W. 3d 676, 677-78 (2006). \n Here, the claimant did return to work for respondent performing lighter duty work \nfollowing her visit with Dr. Stambough on June 17, 2021.  Claimant continued to work for \nthe respondent until the incident on October 12, 2021, when she was getting up from the \nstool  and  felt  additional  pain  in  her  left  knee.    Thereafter,  claimant  sought  additional \nmedical  treatment  from  Dr.  Nguyen  at  which  time  he  recommended  and  performed \nsurgery  on  claimant’s  left  knee  and  ultimately  on  her  left  wrist  as  a  result  of  the  fall.  \nClaimant  did  not  return  to  work  following  the  incident  on  October  12,  2021,  and  was \nsubsequently terminated in November 2021.  Accordingly, I find that claimant remained \nwithin her healing period and that she had not returned to work as of October 13, 2021.  \nI find that this status continued until May 20, 2022.  On that date, claimant was seen by \nDr. Nguyen and he indicated that claimant wanted a full release in order to return to work.  \nClaimant has not been seen by Dr. Nguyen since that date.  Dr. Nguyen allowed claimant \n\nRiddle – H202952 \n \n14 \n \nto return to work and claimant did in fact begin looking for work and eventually became \nemployed as a substitute teacher. \n Accordingly, I find that claimant’s failure to return to work subsequent to May 20, \n2022 was no longer causally related to an injury.  In fact, claimant did return to work for \nanother employer subsequent to that date.  Therefore, claimant is entitled to temporary \ntotal disability benefits beginning October 13, 2021 through May 20, 2022. \n The final issue for consideration involves respondent’s contention that claimant did \nnot provide notice of a left knee or left wrist injury until she filed the AR-C on April 15, \n2022; therefore, respondent is not liable for any compensation benefits prior to that date \npursuant  to  A.C.A.  §11-9-701.    I  find  no  merit  to  this  contention.    First,  A.C.A.  §11-9-\n701(a)(1) requires that the employee report the injury to the employer.  Claimant did report \nthe injury to her employer on the day it occurred.  While a left  knee injury or left ankle \ninjury  were  not  reported  that  is  because  they  arose  as  a  result  of  a  compensable \nconsequence  of  the  reported  right  knee  injury.  As  previously  discussed,  the  medical \nrecords  clearly  indicate  that  claimant’s  left  knee  complaints  arose  from  having  to  use \ncrutches as a result of the right knee fracture and an altered gait.  Likewise, the left ankle \ninjury was a compensable consequence of the left knee injury. \n Accordingly, I find that the claimant did report her injury which led to the left knee \ninjury and left wrist injury when she reported the injury on the date it occurred.  Therefore, \nA.C.A. §11-9-701 does not operate to bar claimant’s claim for benefits. \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \n\nRiddle – H202952 \n \n15 \n \nher  left  knee  fracture  and  left  wrist  fracture  are  compensable  consequences of  her \ncompensable right knee injury of April 2, 2021.  Respondent is liable for payment of all \nreasonable   and   necessary   medical   treatment   provided   in   connection   with   these \ncompensable consequences.  This includes the surgeries which have been performed by \nDr. Nguyen.  In addition, claimant is entitled to temporary total disability benefits beginning \nOctober 13, 2021, and continuing through May 20, 2022.   \n Pursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \n Respondent  is  responsible  for  payment  of  the  court  reporter’s  charges  for \npreparation of the hearing transcript in the amount of $625.00. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n      ____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":26839,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202952 SONJA RIDDLE, Employee CLAIMANT FRIENDSHIP COMMUNITY CARE, INC., Employer RESPONDENT ATA WC TRUST/RISK MANAGEMENT RESOURCES, Carrier RESPONDENT OPINION FILED JUNE 19, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Russellville, P...","outcome":"granted","outcomeKeywords":["granted:6"],"injuryKeywords":["knee","ankle","fracture","wrist","back","hip"],"fetchedAt":"2026-05-19T23:06:31.851Z"},{"id":"full_commission-H102269-2023-06-16","awccNumber":"H102269","decisionDate":"2023-06-16","decisionYear":2023,"opinionType":"full_commission","claimantName":"Hershel Hice","employerName":"Logan County","title":"HICE VS. LOGAN COUNTY AWCC# H102269 JUNE 16, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Hice_Hershel_H102269_20230616.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Hice_Hershel_H102269_20230616.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H102269 \n \nHERSHEL HICE, EMPLOYEE  CLAIMANT \n \nLOGAN COUNTY, EMPLOYER RESPONDENT \n \nASSOCIATION OF ARKANSAS COUNTIES WCT,  \nINSURANCE CARRIER/TPA RESPONDENT \n \nOPINION FILED JUNE 16, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MATTHEW J. KETCHAM, \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Claimant appeals an opinion and order of the Administrative Law \nJudge filed March 1, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The stipulations agreed to by the parties at a pre-hearing \nconference conducted on December 14, 2022 and contained in a \npre-hearing order filed that same date are hereby accepted as \nfact. \n \n2. Claimant has failed to prove by a preponderance of the evidence \nthat he suffered a compensable injury to his right shoulder on \nFebruary 19, 2021. \n\n \nHICE - H102269  2\n  \n \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's March 1, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n Therefore we affirm and adopt the decision of the Administrative Law \nJudge, including all findings and conclusions therein, as the decision of the \nFull Commission on appeal.  \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2139,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H102269 HERSHEL HICE, EMPLOYEE CLAIMANT LOGAN COUNTY, EMPLOYER RESPONDENT ASSOCIATION OF ARKANSAS COUNTIES WCT, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 16, 2023 Upon review before the FULL COMMISSION in Little Rock...","outcome":"affirmed","outcomeKeywords":["affirmed:3","denied:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:29:46.328Z"},{"id":"alj-H206432-2023-06-15","awccNumber":"H206432","decisionDate":"2023-06-15","decisionYear":2023,"opinionType":"alj","claimantName":"Shakeshal Ransom","employerName":"Tyson Poultry Inc","title":"RANSOM VS. TYSON POULTRY INC. AWCC# H206432 JUNE 15, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/RANSOM_SHAKESHAL_H206432_20230615.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RANSOM_SHAKESHAL_H206432_20230615.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H206432 \n \nSHAKESHA L. RANSOM, EMPLOYEE   CLAIMANT \n \nTYSON POULTRY INC., SELF-INSURED EMPLOYER RESPONDENT \n \n \nOPINION/ORDER FILED JUNE 15, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope County, \nArkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by JEREMY SWEARINGEN, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n \n On  September 7, 2023, claimant filed Form AR-C, alleging a compensable injury on March \n9, 2022. Claimant was not represented by an attorney when the AR-C was filed, and is still pro se.   \nOn April 20, 2023, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but she had not made a request \nfor a hearing in that time. A hearing on respondent’s Motion to Dismiss was scheduled for June 7, \n2023.  Notice of the scheduled hearing was sent to claimant by certified mail at the last known address \nin the Commission’s file.  The notice was delivered to claimant on April 28, 2023. Claimant did not \nrespond to Respondent’s motion and did not appear in person at the hearing on June 7, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the Respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the Respondent’s motion, as well as all other matters \nproperly before the Commission, I find that Respondent’s Motion to Dismiss this claim should be \n\nRansom-H206432 \n \n2 \n \nand hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2003,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206432 SHAKESHA L. RANSOM, EMPLOYEE CLAIMANT TYSON POULTRY INC., SELF-INSURED EMPLOYER RESPONDENT OPINION/ORDER FILED JUNE 15, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Russellville, Pope County, Arkansas. Claimant is not represented ...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:06:27.679Z"},{"id":"alj-H207643-2023-06-15","awccNumber":"H207643","decisionDate":"2023-06-15","decisionYear":2023,"opinionType":"alj","claimantName":"Daraphone Saegsatheuane","employerName":"Trane Commercial Systems","title":"SAEGSATHEUANE VS. TRANE COMMERCIAL SYSTEMS AWCC# H207643 JUNE 15, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SAEGSATHEUANE_DARAPHONE_H207643_20230615.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SAEGSATHEUANE_DARAPHONE_H207643_20230615.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H207643 \n \nDARAPHONE SAEGSATHEUANE, Employee                                                     CLAIMANT \n \nTRANE COMMERCIAL SYSTEMS, Employer                                                 RESPONDENT \n \nTRAVELERS INDEMNITY COMPANY, Carrier                                             RESPONDENT \n \n \n OPINION FILED JUNE 15, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On March 21, 2023, the above captioned claim came on for hearing at Fort Smith, Arkansas.  \nA pre-hearing conference was conducted on January 5, 2023, and a pre-hearing order was filed on that \nsame date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na part of the record without objection. \n At the hearing, the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on November 3, 2021. \n 3.  Claimant sustained a compensable injury to her left shoulder and neck on or about        \n      November 3, 2021.  \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1.  Compensation rate. \n            2.   Whether claimant is entitled to temporary total disability benefits. \n\nSaegsatheuane-H207643 \n \n2 \n \n            3.  Whether claimant is entitled to medical benefits. \n 4.   Attorney’s fee. \n The claimant contends that: \n“a. The claimant contends that on July 3, 2022, she was terminated because of the effects \nof medication that was prescribed because of the effects of her admittedly compensable job-related \ninjury; therefore, she is entitled to temporary total disability benefits from July 4, 2022 until a date yet \nto  be  determined  since  she  has  remained  under  active  medical  treatment  during  that  time  and  the \nrespondents have not made suitable work available. \nb. The claimant contends that she is entitled to injections that have been recommended \nby her authorized physician. \nc. The claimant contends that her attorney is entitled to an appropriate attorney’s fee.”  \nThe respondents contend that “the ESI injections are not reasonable, necessary, or related to \nthe work injury. Claimant returned to work following the injury and was subsequently terminated for \nreasons  unrelated  to  the  work  injury  and  as  a  result  is  not  entitled  to  additional  temporary  total \ndisability benefits.”   \n From a review of the entire record, including medical reports, documents, and other matters \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on \nJanuary 5, 2023, and contained in a pre-hearing order filed that same date, as well as those made at \nthe hearing, are hereby accepted as fact. \n\nSaegsatheuane-H207643 \n \n3 \n \n \n2. Claimant has met her burden of proof by a preponderance of evidence that she is entitled \nto temporary total disability benefits beginning July 13, 2022, to a date yet to be determined. \n3. Claimant has met her burden of proof by a preponderance of the evidence that she is entitled \nto additional medical benefits from Dr. Brent Whatcott for her neck and left shoulder injury. \n4.  Claimant’s average weekly wage at the time of her injury was $897.00, making her temporary \ntotal disability rate $598.00 per week.  \n5. Claimant has proven by a preponderance of the evidence that her counsel is entitled to a \ncontroverted attorney's fee on the indemnity benefits awarded herein pursuant to Ark. Code Ann. § \n11-9-715. \n FACTUAL BACKGROUND \n The  parties  were  unable  to  agree  upon  an  average  weekly  wage  for  calculating  indemnity \nbenefits if such were awarded.   Respondents provided the payment records from the year before the \ndate of injury (see discussion of these records below).  Claimant’s attorney submitted a letter after the \nhearing, both stating his position and calculating the average weekly overtime earnings for claimant.  \nThis letter is blue-backed and made a part of the record.  \nHEARING TESTIMONY \n \n Claimant testified she was injured while she was working because she was in an area where she \ndid not have sufficient room to stand without hitting a roof. She said she injured her neck and went \nto  the  doctor  the  next  day.  Claimant  testified  she  was  placed  on  some  physical  restrictions  but \ncontinued to work. She was referred to physical therapy.   \n Claimant said she was no longer working at Trane because while performing her duties, she \nheard something pop. She became lightheaded so she sat in a chair. Claimant testified that she was \ndizzy and closed her eyes but denied she had fallen asleep. She said that in her fifteen years of working \n\nSaegsatheuane-H207643 \n \n4 \n \n \nat Trane, it was the first time she had been accused of sleeping on the job. Before she was terminated, \nclaimant said she was working fifty-eight hours a week. In reviewing her wage records, claimant stated \nthat she used a lot of sick leave in the fifty-two weeks before her injury because she had a blood clot \nin her feet.  \n Claimant said after the injury, she was placed on some working restrictions and continued to \nwork. Claimant testified that she also did a course of physical therapy. However, the injury hurt her \nto the point where she could not sleep, stating “I have to keep on turning the whole time because it \nis burning. It is like on fire.” Claimant said she was sent to a pain management doctor after she had \nbeen hurting for five or six months, first seeing someone at the pain management clinic on June 27, \n2022. She  received  an  injection  in  her  neck  and  shoulder.  Claimant  was  also  prescribed  pain \nmedication, which doesn’t really help and she is still not sleeping well. However, the medicine does \nmake her sleepy.  \n Claimant testified that her condition was worse now than the day she got fired. She said while \nworking, she took vacation days and personal days when her injury caused her to miss work, but she \ndid not know how many such days that she used.  \n Claimant testified that she is currently seeing the pain management doctor monthly.  No one \nat Trane had told claimant that if she took medication that caused her to go to sleep at work that she \nwould be fired.   Claimant said that after her injury that she worked at the same place for a short time \nand was then put to work at light duty. However, she said that it was the same job and that she still \nhad to lift heavy stuff and had to bend down.  \nOn  cross-examination,  claimant  affirmed  that  she was able  to  communicate  in  English and \nthat she helped train new employees and completed paperwork as part of her duties.  Claimant said \nshe was not working at the time of the hearing and did not know why a doctor’s record from \n\nSaegsatheuane-H207643 \n \n5 \n \n \nSeptember  22,  2022,  said  that  she  was  working  full  time.  Claimant  denied  that  she  had  seen  a \nneurosurgeon but agreed that she had been sent to Fayetteville, “but I don’t know why they send me \nto Fayetteville, but they never say anything about surgery.” She denied that she had told her doctor \non July 25, 2022, that the medication caused no fatigue and no drowsiness. She said that she had never \nbeen asked if the medicine made her drowsy.  \n Claimant said that she had had two injections into her shoulder, and she believed that there \nwas a little improvement, although for the first couple of hours after the injection was painful. When \nasked to specify what her current physical ailments were, she said it was her left shoulder, arm, and \nneck. Claimant testified that she had a modified job two months before she was fired based on some \npaperwork that she received from the first doctor. She said she didn’t provide any other paperwork \nor restrictions or limitations after that.  \n After claimant rested, respondents called Marcus Philips, the Human Resources Specialist at \nTrane. He did not have that position on July 13, 2022, when claimant was terminated, as he took that \nposition in August of 2022. However, as the current HR director, he has access to the files with respect \nto the employees at Trane. He was aware that claimant had a work-related injury for which she was \nreceiving  treatment  before  he  became  HR  director.    Mr.  Philips  said  that  one  task  that  claimant \nperformed while on light duty was observing production times and reporting back to the supervisor \nhow long it took to complete a task. That job involved counting and documentation, as well as moving \npaperwork to different sections. He denied that claimant was doing any kind of rigorous work while \non light duty.  \nMr. Philips testified that claimant’s termination was due to sleeping on the job. Claimant had \nother discipline issues with Trane prior to being terminated regarding her attendance, including failure \nto  report  to  work.  Mr.  Philips  was  unaware  that  claimant  was  on  medication  that  might  affect  her \n\nSaegsatheuane-H207643 \n \n6 \n \n \nability to perform her job, and he had not discussed with claimant whether she was asleep because of \nthe  medication  she  was  taking.  Mr.  Philips  confirmed  what  claimant  had  said  about  training  new \nemployees and that she did so in English. \n On  cross  examination,  Mr.  Philips  affirmed  that  Trane  could  have  continued  to  provide \naccommodations for claimant’s limitations had she not been terminated. When asked about how much \nthe paper weighed that claimant would have to carry, Mr. Philips was unsure. At that point, he was \nshown Respondent’s Exhibit #1, which consisted of one hundred twenty-one pages, and he said that \nit  was  less  paper  than  that.  He  did  concede  that  the  job  involved  reaching  away  from  the  body, \nbending, and moving the head and neck. \n When asked about Trane’s disciplinary policy, Mr. Philips said that it was progressive in that \nthe  steps  were  verbal,  written,  and  final  termination.  He  also  stated  that  suspension  could  be \napplicable, depending on the situation. The cross-examination concluded with this exchange: \nQuestion  (By  Mr.  Walker)  So  do  you  know  whether  the  person  who \nterminated  her  knew  what  level  of  discipline  she  was  at  when  she  got \nterminated? Do you know that from firsthand knowledge? \nAnswer (By Mr. Philips) No, sir. \n \nQ.  Now  you  indicated  you  were  not  aware  of  anything  from  medical \nprovider  talking  about  how  medication  may  have  a  sedative  effect  on \nDaraphone, but you are an HR person now; right? \nA. Yes, sir. \n \nQ. If one of Trane’s employees had a job-related  injury  and  you  receive \nsomething  from  their  medical  provider  saying  they  are  required  to  take \nprescription medication that was medically necessary in order for them to \nbe able to continue working and that the medication might have a sedative \neffect or adjustment period, how would you interpret that? \nA. That would have been the amount of time the sedative effect would be \nreduced. \n \nQ.  Would  you  interpret  that  as  a  medical  provider  indicating  there  were \nsome transition periods that needed to be allowed in order for that person \nto adjust to that medication? \nA. Yes.  \n\nSaegsatheuane-H207643 \n \n7 \n \n \n \nQ. Would you think that would be reasonable? \nA. Yes. \n \n On  redirect-examination  Mr.  Philips  said  he  did  not  receive  anything  regarding  a  transition \nperiod, nor seen anything to that effect in claimant’s file. \n Mr. Philips was then questioned by the Court. He stated that he received some medical records \nfrom the workers’ compensation insurance carrier. There was then this exchange: \nQ  (from  the  Court)  You  mentioned  progressive  discipline.  Are  there \ncircumstances where someone doesn’t get a verbal warning first? \nWitness. No. \n \nQ. OK. \nWitness. Typically, everyone should. \n \nQ.  I  just  wondered  if  an  employee  slugged  another  one  unprovoked \nslugged  another  one,  if  they  would  be  warned  or  would  they  be \nterminated? \nWitness. That would be termination.  \n   \nQ. So there are provisions that you can skip the verbal warning, written \nwarning, suspension if you were going to do a suspension-  \nWitness. Yes. \n  \nREVIEW OF THE MEDICAL EXHIBITS \n  \n The  records  submitted  by  the  parties  were  largely  duplicative  and  will  be  reviewed  in \nchronological  order.  Claimant  first  saw  APRN  Cynthia  Johnson  at  Arkansas  Occupational  Health \nClinic  on  November  4,  2021.  The  treatment  plan  following  the  examination  was  over-the-counter \npain relievers, heat, ice, and an over-the-counter lidocaine patch/topical muscle ointment to the left \nshoulder. The recommended activity restrictions were “no work over chest level, limit lifting, pushing, \npulling with less than ten pounds of force with the left shoulder.” While that visit concluded with a \nrecommendation that claimant return in two weeks, she was back on November 12, 2021, and Ms. \nJohnson made a referral for an MRI to evaluate the lack of progress. An MRI of claimant’s left \n\nSaegsatheuane-H207643 \n \n8 \n \n \nshoulder was performed on December 1, 2021, with no evidence of internal derangement of the left \nshoulder;  a  second  MRI  was  performed  on  December  7,  2021,  examining  the  left  brachial  plexus, \nwhich  revealed  a  small  disc  herniation  at  C5-C6,  but  otherwise  an  unremarkable  non  contrast  MR \nappearance of the left brachial plexus.  \n On December 9, 2021, Ms. Johnson reviewed the MRI and determined that six sessions of \nphysical therapy would be appropriate. The final progress notes from January 5, 2022, recommended \n“Patient to follow up with MD as scheduled, continued daily home exercises. She would benefit from \ncontinued physical therapy, MRI spine maybe indicated, she may also benefit from home TENS unit \nfor home pain management.”  Claimant completed this course of physical therapy on January 5, 2022. \n On January 7, 2022, claimant returned to Arkansas Occupational Medicine Services but did \nnot see an MD; she continued to be followed by APRN Johnson. The treatment plan was to return \nfor  more  physical  therapy  and  continue  with  over-the-counter  Ibuprofen  or Aleve  twice  daily  for \ninflammation,  alternating  with  Acetaminophen  for  pain.  Claimant’s  recommended  work  status \nremained at restricted duty. \n On January 24, 2022, claimant began a second set of six visits with physical therapy.  After the \nlast  visit  on  February  7,  2022,  the  therapist  recorded  in  the  assessment  and  diagnosis  section  that \nclaimant still had pain in her cervical and left shoulder area. Physical Therapist Lesli France said that \nclaimant  presented “with  a  positive  Spurling’s and positive Empty Can  left  shoulder.”  Ms.  France \nbelieved  that  claimant  might “benefit  from  imaging  of  the  cervical  spine  to  rule  out  cervical \nradiculopathy as the cause for her headaches, and neck and periscapular pain complaints.” \n Returning to see Ms. Johnson at Arkansas Occupational Medicine Services on February 10, \n2022,  claimant  was  referred  for  a  CT  scan  but  nothing  other  than  the  previous  over-the-counter \nmedication, ice/heat treatments and a lidocaine patch were offered to relieve her pain.  \n\nSaegsatheuane-H207643 \n \n9 \n \n \n A  cervical  spine  CT  was  performed  on  February  15,  2022,  with  the  following  abnormal \nfindings  at  C5-6 “There is retrolisthesis and disc space narrowing.  Retrolisthesis is  almost  three \nmillimeters.  Mild  bilateral  uncovertebral/foraminal  spurring  at  this  level.  Mild  broad  posterior  disc \nbulge, likely also a small right posterolateral disc protrusion. Mild central canal stenosis suspected at \nthis level.” \n Claimant returned to see Ms. Johnson on February 22, 2022, and a referral to neurosurgery \nwas recommended. Claimant went to NWA Neuroscience Institute in Fayetteville on April 12, 2022, \nand was seen by Candace Harper, P.A. \nIn the discussion summary, Ms. Harper recorded the following: \n “Patient presents for evaluation of neck pain radiating to the lute of the \nC6-7 distributions. She has had brachial plexus MRI and CT cervical spine. \nI  do  not  have  the  radiology  report  on  the  brachial  plexus  MRI.  I  have \nreviewed  the  CT  cervical  spine  showing  kyphosis  at  C5-6  and  slight \nretrolisthesis at C5 on 6. Patient needs MRI for further evaluations as CT \nis not sufficient to evaluate her canal or foramen. We will request this at \nour  facility,  will  call  with  results  and  further  plan.  I  explained  potential \npathology on a spine model with patient today, she agrees with the plan.”   \n \nUnder the section titled \"patient instructions,” Ms. Harper noted: \n \n “I have reviewed patient’s cervical MRI this is negative for any high-grade \ncanal or foraminal stenosis. Thus, we do not have a surgical solution for \nher  pain.  Recommended  conservative  care  which  may  include  physical \ntherapy or pain management.” \n \n \n      The MRI ordered by  Ms. Harper was performed on April 28, 2022, and found \nthe following:  \n “C3-4 posterior disc osteophyte complex causes mild canal stenosis and \npartially flattens the spinal cord. No foraminal stenosis.  \nC4-5  posterior  disc  osteophyte  complex  causes  mild  canal  stenosis  and \npartially  flattens  the  ventral  surface  of  the  spinal  cord.  No  foraminal \nstenosis  \nC5-6  a  posterior  disc  osteophyte  complex  is  present  with  mild  canal \nstenosis and partial flattening of the spinal cord. No foraminal stenosis. \n\nSaegsatheuane-H207643 \n \n10 \n \n \nC6- 7 no canal or foraminal stenosis. There are small bilateral nerve lute \nsleeve cysts. \nC7-T1. no canal or foraminal stenosis. There are small bilateral nerve lute \nsleeve cysts. \n \nThe impression was: \n \n“Posterior disc osteophyte complex with mild canal stenosis and cord \nimpingement at the C3-4, C4-5, and C5-6 level. \n \n On May 13, 2022, claimant returned to see APRN Johnson once again who determined that \nthe treatment plan would be to refer claimant to pain management for this issue. \n On  June  27, 2022,  claimant  had  her  first  visit  with  DNP  Brandon  Faulkner  for  pain \nmanagement,  receiving  an  injection  of  Bupivacaine  and  Kenalog.  DNP  Faulkner  also  prescribed \nTramadol  for  her  pain.  Claimant  received  another  injection  on  July  25,  2022,  of  Bupivacaine  and \nDecadron and the prescription for Tramadol was renewed.  \n When Claimant returned to DNP Faulkner on August 22, 2022, she reported that she was not \nsatisfied with her current treatment. Despite mentioning in his June 27, 2022, notes that he needed to \nsee the recent imaging from Prime Medical, DNP Faulkner had not seen the shoulder imaging  that \nwas done on December 1, 2021, nor did he have it during the September 26, 2022, visit. On the latter \nvisit, claimant also saw Dr. Brett Whatcott for a left suprascapular nerve block. On October 17, 2022, \nclaimant returned to see Dr. Whatcott. While the assessment/plan from that visit contains information \nfrom previous visits, there was this new entry: \n“I do not need to see imaging of left shoulder any longer due to pain \nnot coming from the shoulder. Patient had SSNB done on 9/26 and \nreports  a  0%  pain  relief.  Working  is  not  recommended  to  do  any \nlifting, only light duty at this time. We will re-evaluate at the next visit. \nEpidural recommended from this time for better pain control, will get \nthat  scheduled.  Patient  had  a  C5/6  left  side  herniated  disc  with  left \nradiculopathy.”    \n \n The final submissions were notes from the claims adjuster and a review by Dr. Glenn Babus, \n\nSaegsatheuane-H207643 \n \n11 \n \n \nwhose specialties are anesthesiology and pain medicine.  Dr. Babus reviewed the records submitted \nto him and determined the additional treatment recommended by Dr. Whatcott was not reasonable \nor necessary; he did not personally examine claimant.  \nREVIEW OF NON-MEDICAL EXHIBITS \n Respondent submitted an email from Chris Saunders with an attached printout of the wages \nearned  by  claimant  from  July  10,  2020,  through  November  5,  2021,  along  with  a  calculation  that \nclaimant had earned $42,641.92 over the previous 51 weeks; the week of April 4, 2021, was blank for \nan unexplained reason.  In reviewing the printout, I noted there were also weeks in September through \nDecember 2020 that were not included, again without explanation.  However, the missing weeks are \nnot critical to my determination of claimant’s average weekly wage.  \nADJUDICATION \n \nThere are three distinct issues presented in this case.  First, is claimant entitled to additional \nmedical treatment for her compensable injury?  Second, is she entitled to temporary total disability \npayments (TTD) from the time she was fired from her job while being treated for her injury?  Third, \nif claimant is entitled to TTD, what is the appropriate compensation rate for those benefits?  \n1.  Claimant’s entitlement to additional medical treatment.  \nIt was stipulated that claimant had a compensable injury on November 3, 2021. Once it has \nbeen  established  that  a  claimant  has  sustained  a  compensable  injury,  she  is  not  required  to  offer \nobjective medical evidence to prove entitlement to additional benefits, Ark. Health Ctr. v. Burnett, 2018 \nArk. App. 427, at 9, 558 S.W.3d 408, 414.   \nThe  evidence  on  this  point  boils  down  to  whether  the  testimony  of  the  claimant  and  the \nopinion of her treating physician is more persuasive than the report of a doctor who only reviewed \nrecords  provided  to  him.  I find Dr. Whatcott’s recommendation is more  credible  in  light  of  the \n\nSaegsatheuane-H207643 \n \n12 \n \n \nconservative  care  claimant  has  received  to  this  point  in  her  course  of  treatment,  and  therefore \nclaimant’s  proof  is  sufficient  to  support  her  request  for  continued  medical  treatment  for  her \ncompensable injury.\n1\n \n2.   Claimant’s entitlement of temporary total disability benefits. \n \nTo  be  entitled  to  TTD  benefits  for  an  unscheduled  injury,  a  claimant  must  prove  by  a \npreponderance of the evidence that she remains within her healing period and suffers a total incapacity \nto earn wages. Allen Canning Co. v. Woodruff, 92 Ark. App. 237, 212 S.W.3d 25 (2005).   In the previous \nsection, I found claimant was still in her healing period, thus satisfying the first part of the two-part \ntest.  As for the second part of that test, she had returned to work under light duty, which could be \nseen as a capacity to earn some wages.  However, in Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.3d \n899 (2002), the Arkansas Court of Appeals wrote: \"If, during the period while the body is healing, the \nemployee is unable to perform remunerative labor with reasonable consistency and without pain and \ndiscomfort,  his  temporary  disability  is  deemed  total.\"  Based  on  my  finding  above  that  additional \nmedical treatment is appropriate for claimant’s injury, and that I found her to be a credible witness as \nto the pain she suffers on a near-constant basis, I find she qualifies for total temporary disability from \nJuly 13, 2022 until a date to be determined.\n 2\n  \n Before leaving this issue, I note that respondent raised as a defense to this portion of the claim \nthat claimant was “terminated for reasons unrelated to the work injury and as a result is not entitled \nto additional temporary total disability benefits.”  I find the claimant’s termination was irrelevant to \n \n1\n In reviewing the medical records, it is striking how few licensed physicians claimant has seen as of the day of the hearing.  \nHer course of treatment has been directed by APRN Johnson, who referred her to a physical therapist, then a neurosurgeon \nwhere she was seen by a physician’s assistant, and then to pain management where she was first treated by a DNP before \nfinally seeing Dr. Whatcott.    This observation does  not cast aspersions  on those that  have treated claimant; all may be \nquite competent at what they do.  Still, those assistants are not medical doctors.   \n2\n In her contentions, claimant maintained she was terminated on July 3, 2022.  I find Mr. Philip’s testimony to be \nmore persuasive that it was July 13, 2022.  \n\nSaegsatheuane-H207643 \n \n13 \n \n \nher  entitlement  to  temporary  total  disability  benefits.  Respondent  did  not  prove  claimant  was \nterminated  for  good  cause,  as  its  only  witness  was  not  a  witness  to  the  alleged  sleeping  incident.  \nFurther, even if he had witnessed it, Tyson Poultry,  Inc. v. Narvaiz, 2012 Ark. 118, would dictate that \nclaimant would not be disqualified from receiving TTD benefits.  \n3.  Claimant’s average weekly wage at the time of the injury. \n Arkansas Code Annotated §11-9-518 is the applicable statute for calculating claimant’s average \nweekly wage. This statute reads, in pertinent part: \n(a)(1)  Compensation  shall  be  computed  on  the  average  weekly  wage \nearned by the employee under the contract of hire in force at the time \nof the accident and in no case shall be computed on less than a full-\ntime workweek in the employment. \n \n(2)  Where  the  injured  employee  was  working  on  a  piece  basis,  the \naverage weekly wage shall be determined by dividing the earnings of \nthe  employee  by  the  number  of  hours  required  to  earn  the  wages \nduring  the  period  not  to  exceed  fifty-two  (52)  weeks  preceding  the \nweek  in  which  the  accident  occurred  and  by  multiplying  this  hourly \nwage  by  the  number  of  hours  in  a  full-time  workweek  in  the \nemployment. \n \n(b) Overtime earnings are to be added to the regular weekly wages and \nshall be computed by dividing the overtime earnings by the number of \nweeks  worked  by  the  employee  in  the  same  employment  under  the \ncontract of hire in  force  at the time of  the accident, not to exceed a \nperiod of fifty-two (52) weeks preceding the accident. \n \nRespondent’s non-medical exhibit treated claimant as a piece worker as per §11-9-518 (a)(2), \ndividing  the  total  earnings  by  51  weeks  (as  noted  above,  there  was  a missing week in respondent’s \nrecords).  However, claimant was not a piece worker and therefore there was no reason to calculate \nher wages in such a fashion.     \nRespondent’s records show that claimant received a base pay rate of $809.98 during the weeks \nleading up to the November 3, 2021, injury.  Those same records show that during the 46 weeks prior \n\nSaegsatheuane-H207643 \n \n14 \n \n \nto the accident (again, respondents’ records were missing the entire month of November 2020 and \nhalf of December 2020, so a 52-week calculation was not possible), claimant earned $4,002.77 for an \naverage weekly overtime wage of $87.02.  Claimant’s average weekly wage is therefore $897.00, yielding \na TTD rate of $598.00.  \nORDER \n \n Respondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nAll issues not addressed herein are expressly reserved under the Act. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $631.95. \n \n IT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":28462,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207643 DARAPHONE SAEGSATHEUANE, Employee CLAIMANT TRANE COMMERCIAL SYSTEMS, Employer RESPONDENT TRAVELERS INDEMNITY COMPANY, Carrier RESPONDENT OPINION FILED JUNE 15, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian Coun...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["shoulder","neck","back","cervical","herniated"],"fetchedAt":"2026-05-19T23:06:29.782Z"},{"id":"alj-H208725-2023-06-14","awccNumber":"H208725","decisionDate":"2023-06-14","decisionYear":2023,"opinionType":"alj","claimantName":"Lauren Farley","employerName":"Ozark Regional Vein & Artery Center","title":"FARLEY VS. OZARK REGIONAL VEIN & ARTERY CENTER AWCC# H208725 JUNE 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FARLEY_LAUREN_H208725_20230614.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FARLEY_LAUREN_H208725_20230614.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H208725 \n \nLAUREN FARLEY, Employee                                                                          CLAIMANT \n \nOZARK REGIONAL VEIN & ARTERY CENTER, Employer                     RESPONDENT                        \n \nCONTINENTAL INSURANCE COMPANY, Carrier                                   RESPONDENT                        \n \n \n OPINION FILED JUNE 14, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 24, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on March 1, 2023 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The  employee/employer/carrier  relationship  existed  among  the  parties  on \nNovember 21, 2022. \n 3.   The claimant was earning an average weekly wage of  $720.00 which would \nentitle her to compensation at the weekly rates of $480.00 for total disability benefits and \n\nFarley – H208725 \n2 \n \n$360.00 for permanent partial disability benefits. \n 4.   The respondents have controverted this claim in its entirety. \n At the time of the hearing the parties agreed to stipulate that claimant earned an \naverage weekly wage of $824.36 which would entitle her to compensation at the rates of \n$550.00 for total disability benefits and $413.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s back on November 21, 2022. \n2.    Related medical treatment; including, treatment recommended by Dr. Deimel. \n3.    Temporary total disability benefits from November 22, 2022 through a date \nyet to be determined. \n4.    Attorney fee. \nClaimant clarified at the time of the hearing that she is requesting temporary total \nDisability benefits from November 22, 2022 through January 24, 2023.   \n The  claimant  contends  she  is  entitled  to  medical  treatment  for  her  back  as \nrecommended by Dr. Deimel, and to temporary total disability benefits from November \n22,  2022  through  January  24,  2023,  and  an  attorney  fee.    Claimant  reserves  all  other \nissues. \n The  respondents  contend  the  claimant  did  not  sustain  a  compensable  injury  on \nNovember  21,  2022.    The  claimant  suffers  from  a  pre-existing  degenerative  back \ncondition for which she takes pain medication and has had a LESI as recently as October \n3, 2022, June 10, 2022, and March 11, 2022.  The claimant was not on the clock when \nher  alleged  injury  occurred.    The  claimant  was  not  being  paid  for  her  time and  was \nvolunteering to help respondent employer move into a new facility.  The claimant cannot \n\nFarley – H208725 \n3 \n \nprove by a preponderance of the evidence that she sustained a compensable injury that \narose out of and in the course of her employment that is supported by objective medical \nfindings of a new injury. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non March 1, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she suffered a compensable injury to her low back while working for respondent on \nNovember 21, 2022. \n 3.    Respondent is liable for payment of all reasonable and necessary medical \ntreatment provided in connection with claimant’s compensable injury.   This includes \nmedical recommended by Dr. Deimel. \n 4.   Claimant has met her burden of proving by a preponderance of the evidence \nthat she is entitled to temporary total disability benefits beginning November 30, 2022 \nand continuing through January 24, 2023. \n 5.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n\nFarley – H208725 \n \n4 \n \n \n FACTUAL BACKGROUND \n Claimant  is  a  34-year-old  woman  who  began  working  for  respondent  in  March \n2020  as  an  esthetician  with  her  job  duties  primarily  consisting  of  performing  facials.   \nHowever, she also performed some other skin care treatments as well as using lasers.  \nShe also testified that she occasionally worked at the front desk as a receptionist and was \nresponsible for inventory and ordering supplies. \n The  claimant  has  a  history  of  spinal  complaints  which  have  included  cervical \nfusions  in  March  and  October  2016.    In  addition,  claimant  has  had  some  complaints \ninvolving  her  lumbar  spine.    Since  2020  the  claimant  has  primarily  received  medical \ntreatment from Dr. George Deimel, an orthopedic surgeon at Ozarks Orthopaedics.  In \naddition,  claimant  has  also  received  treatment  from  Thurman  Smith,  PA-C  at  Ozarks \nOrthopaedics.    On  July  8,  2020  claimant  was  seen  by  Dr.  Deimel  and  he  noted that \nclaimant was complaining of lumbar pain for which he suspected that she suffered from \nlumbosacral  radicular  pain  syndrome.    Dr.  Deimel  ordered  an  MRI  scan  which  was \nperformed on July 21 and was read as showing mild ligamentous and facet disease at \nL4-5 and L5-S1.   \n Claimant  returned  to  see  Smith  on  July  23,  2020,  at  which  time  he  discussed \nclaimant undergoing some injections for diagnostic/therapeutic purposes.  Smith’s report \nindicates that claimant wanted to think about that treatment and noted that claimant would \ncall if she wished to pursue injections at the L4-5 and L5-S1 areas.   \n Claimant  did  not  choose  to  undergo  those  injections  until  she  was  seen  by Dr. \nDeimel on February 8, 2022.  In his report of that date, Dr. Deimel notes that claimant has \n\nFarley – H208725 \n \n5 \n \nnoticed that she had worsening pain with increased activity.  This was primarily due to \nher work activities which required prolonged standing, sitting, twisting, and bending.  Dr. \nDeimel  indicated  that  it  would  be  reasonable  to  consider  injections  and  he  performed \ninjections at the L4-5 and L5-S1 levels on March 11, 2022.   \n Smith’s  report  of  April  5,  2022  indicates  that  following  the  injection  claimant \nreceived 95% improvement in her low back pain.  Claimant underwent repeat injections \nby Dr. Deimel on June 10, 2022 and again on October 3, 2022.  While the second injection \nwas  not  as  effective  as  the  first,  Smith  noted  in  his  report  of  October  18  that  claimant \nreceived greater than 80% improvement in her lumbar radicular complaints. \n Claimant testified that on November 21, 2022, she was sitting at the front desk and \nwas placing various supplies, manuals, and brochures into a box and as she “was bent \nover,  I  felt  a  loud  pop  in  the  back  and  immediately  two  shooting  pains  down  my  leg.”  \nClaimant  testified  that  she  reported  the  injury  to  her  HR  clinic  manager  and sought \nmedical treatment the next day from Urgent Care at Ozark Orthopaedics. \n Claimant was evaluated by Tanner McGinty at Urgent Care on November 22, 2022 \nand his report reflects a history of claimant feeling a sudden pop in her sacral region after \nbending over at work the day before.  McGinty prescribed medication and ordered an MRI \nscan of the claimant’s lumbar spine. \n Claimant  underwent  a  lumbar  MRI  on  November  28,  2022,  which  was  read  as \nshowing mild multilevel spondylosis as well as a disc extrusion at the L5-S1 level. \n Thereafter, claimant was evaluated by Thurman Smith on December 6, 2022, and \nhe recommended additional injections based on claimant’s positive response to injections \nin the past.  The medical records indicate that claimant underwent lumbar epidural steroid \n\nFarley – H208725 \n \n6 \n \ninjections by Dr. Deimel on January 9, 2023.  Since the time of that injection claimant’s \ntreatment has primarily focused on a right hip labral tear which resulted in surgery in April \n2023.  Claimant is not contending that her right hip injury is a work related injury. \n Claimant has filed this claim contending that she suffered a compensable injury to \nher low back on November 21, 2022.  She seeks payment of related medical treatment \nas well as temporary total disability benefits and a controverted attorney fee. \n \nADJUDICATION \n Initially,  I  note  that  respondent  contends  that  claimant  was  not  performing \nemployment services at  the time of her injury. An employee is performing employment \nservices  when  she  is  doing  something  that  is  generally  required  by  her  employer.  \nTexarkana School District v. Conner, 373 Ark. 372, 284 S.W. 3d 57 (2008).  The test is \nwhether  the  injury  occurred  within  the  time  and  space  boundaries  of  the  employment, \nwhen the employee was carrying out the employer’s interest, either directly or indirectly.  \nJaven v. Economy Inn & Suites, 370 Ark. 414, 260 S.W. 3d 281 (2007). \n I   find   based   upon   the   evidence   presented   that   claimant   was   performing \nemployment services at the time of her injury.  Initially, it should be noted that November \n21,  2022  was  a  Monday.   Apparently,  on  Saturday,  November  19,  the  claimant  was \npresent at the respondent’s place of business and engaged in activities involving a move.  \nHowever, claimant testified that she was not injured on Saturday, November 19, and there \nis no other evidence indicating that claimant’s injury actually occurred on November 19 \nas opposed to November 21.   \n With respect to November 21, I note that respondent agrees that claimant worked \n\nFarley – H208725 \n \n7 \n \n3.80 hours that day.  Claimant testified that she was working at the front desk packing \nvarious items in a box when she felt a pop and pain in her low back.  The items claimant \nwas packing were related to her employment with the respondent.  \n Accordingly, I find that claimant was performing employment services at the time \nof her accident on November 21, 2022.  She was at work and was packing items in a box \nfor her employer which advanced the employer’s interest, either directly or indirectly. \n I also find that claimant has met her burden of proving by a preponderance of the \nevidence that she suffered a compensable injury to her low back on November 21, 2022.  \nClearly, as previously noted, claimant did have some prior lumbar complaints for which \nshe received treatment, including lumbar epidural steroid injections. \n Under Arkansas workers’ compensation law, an employer takes the employee as \nit  finds  him,  and  employment  services  that  aggravate  pre-existing  conditions  are \ncompensable.  Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W. 3d 150 \n(2003).  An aggravation is a new injury resulting from an independent incident, so it must \nmeet  the  definition  of  a  compensable  injury  in  order  to  establish  compensability  of  the \naggravation.  Green County Judge v. Penny, 2019 Ark. App. 552 @ 11, 589 S.W. 3d 478, \n486 (citing Liaromatis v. Baxter County Regional Hospital, 95 Ark. App. 296, 236 S.W. 3d \n524 (2006)).   \n I  find  that  claimant  has  met  her  burden  of  proving  by  a  preponderance of  the \nevidence that she suffered a compensable injury to her low back on November 21, 2022, \nin the form of an aggravation of her pre-existing low back condition.   \n To prove a compensable injury as the result of a specific incident, identifiable by \ntime  and  place  of  occurrence,  claimant  must  establish  by  a  preponderance of  the \n\nFarley – H208725 \n \n8 \n \nevidence  (1)  injury  arising  out  of  and  in  the  course  of  employment;  (2)  that  the  injury \ncaused internal or external harm to the body that required medical services or resulted in \ndisability; (3) medical evidence supported by objective findings, as defined in A.C.A. §11-\n9-102(16), establishing the injury; and (4) that the injury was caused by a specific incident \nidentifiable  by  time  and  place  of  occurrence.    A.C.A.  §11-9-102(4)(A)(i); McCutchen  v. \nHuman Development Center, 2018 Ark. App. 239.   \n Here,  for  reasons  previously  discussed,  I  find  that  claimant  has  proven  that  her \ninjury arose out of and in the course of her employment with respondent.  Claimant was \nin the process of packing a box with various office supplies at the time she felt a pop and \npain in her low back.  I also find that claimant has proven that her injury was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence.    I  find  the  claimant’s \ntestimony regarding her compensable injury to be credible and entitled to great weight. \nWith respect to this issue, I note that claimant’s testimony is corroborated by the history \ncontained in the medical records. \n Finally, I also find that the claimant’s injury caused internal harm to her body that \nrequired  medical  services  or  resulted  in  disability  and  that  she  has  offered medical \nevidence supported by objective findings establishing the injury.   Although claimant did \nhave a history of lumbar back complaints for which she had received a lumbar epidural \nsteroid injection as recently as October 3, 2022, medical records indicate that the incident \non  November  21,  2022,  aggravated  that  pre-existing  condition.    As  previously  noted, \nMcGinty at Urgent Care on November 22, 2022 indicated that claimant felt a sudden pop \nin  her  sacral  region  while  bending  over  at  work  the  day  before.    As  a result  of  those \ncomplaints,  McGinty  ordered  a  new  lumbar  MRI  scan.    That  scan  was  performed  on \n\nFarley – H208725 \n \n9 \n \nNovember 28, 2022, and contains the following impression: \n  Mild multilevel spondylosis of the lumbar spine.  This \n  is increased from the prior exam at L4-5 and L5-S1 \n  levels. \n \n  At L5-S1, there is mild canal stenosis and left greater \n  than right lateral recess stenosis secondary to a new \n  central disc extrusion with caudad migration and \n  worsening moderate bilateral facet arthropathy. \n  Moderate bilateral foraminal narrowing.  (Emphasis \n  added.) \n \n \n Following  the  claimant’s  MRI  scan,  claimant  returned  to  Smith  on  December  6, \n2022,  Smith’s report contains the following diagnosis: \n  Acute onset low back buttock and bilateral leg pain \n  status post work injury on 11/21/22 at renew \n  aesthetics [in] Rogers with MRI showing interval \n  development of an L5-S1 small central disc  \n  extrusion with lateral recess and moderate neuro- \n  foraminal narrowing, lumbar radiculopathy. \n  (Emphasis added.) \n \n \n Smith went on to indicate that claimant had suffered from acute low back and leg \npain after her work accident and that a newer MRI scan showed development of an L5-\nS1 disc extrusion “and there is greater than 51% confidence that her work incident has \ncaused her acute complication of her low back hip and leg pain and interval findings on \nher MRI.”   Smith then went on to recommend repeat epidural steroid injections. \n Thus,  following  the  incident  on  November  21,  2022,  claimant  underwent a  new \nMRI scan which revealed new findings in the form of a disc extrusion at the L5-S1 level.  \nThis was noted in the MRI report and in the report of Smith.  In addition, Smith has opined \nthat there is a greater than 51% chance that her work accident caused the findings that \n\nFarley – H208725 \n \n10 \n \nare now present on the MRI scan.  Based upon these findings, I find that  claimant has \nproven that her injury caused internal harm to her body that required medical services; \nthat  she  has  offered  medical  evidence  supported  by  objective  findings  establishing  a \ncompensable  injury;  and that  claimant’s  accident  aggravated  her  pre-existing  low  back \ncondition. \n In summary, I find that claimant has met her burden of proving by a preponderance \nof the evidence that she suffered a compensable injury to her low back on November 21, \n2022. \n In reaching this decision, I also note that claimant sought medical treatment from \nthe emergency room on December 23, 2022.  Claimant testified that the day before that \nvisit she had family coming in for Christmas and she was standing on her feet for much \nof the day attempting to cook, resulting in increased low back pain.  The emergency room \nrecord of that date likewise indicates that claimant had been on her feet for long hours \ncooking  and  had  increased  low  back  pain.    Claimant  was  given  medication  along  with \npatches for treatment of her pain.  I do not find that this incident serves as an independent \nintervening cause with respect to claimant’s compensable injury.  There is no indication \nthat claimant was restricted from standing by her treating physicians.  In addition, by this \ntime, an MRI scan had already been performed indicating that claimant had a new disc \nextrusion  at  the  L5-S1  level  which  had  resulted  in  her  need  for  medical  treatment.  \nTherefore, I do not find that the incident of standing on her feet cooking negates or affects \na finding of compensability under the facts of this case. \n Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment  provided  in  connection  with  claimant’s  lumbar  spine  injury.   This  includes \n\nFarley – H208725 \n \n11 \n \ntreatment for claimant’s low back recommended by Dr. Deimel. \n Claimant  also  contends  that  she  is  entitled  to  temporary  total  disability  benefits \nfrom November 22, 2022 through January 24, 2023.  Claimant’s injury is an unscheduled \ninjury.  A claimant who suffers an unscheduled injury is entitled to temporary total disability \nbenefits during their healing period and while they suffer a total incapacity to earn wages.  \nArkansas State Highway & Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W. 2d \n392 (1981).  \n While I find that claimant did remain within her healing period from the date of her \ninjury through January 24, 2023 based upon the medical reports, claimant did not begin \nsuffering a total incapacity to earn wages until November 30, 2022.  The day after her \naccident the claimant was seen by McGinty at Urgent Care who gave claimant medication \nand ordered an MRI scan.  However, his report does not indicate that he took claimant \noff of work.  Thereafter, Dr. Deimel indicated in a note dated November 30, 2022, that \nclaimant should remain off work from November 30, 2022 through January 5, 2023.  On \nDecember 6, 2022, Thurman Smith indicated that claimant should not perform any work \nuntil January 24, 2023.   \n Based upon this evidence, I find that claimant remained within her healing period \nand that she suffered a total incapacity to earn wages which would entitle her to temporary \ntotal disability benefits beginning November 30, 2022 and continuing through January 24, \n2023.   \n \nAWARD \n \nClaimant has met her burden of proving by a preponderance of the evidence that  \n\nFarley – H208725 \n \n12 \n \nshe  suffered  a  compensable  injury  to  her  low  back  while  employed  by  respondent  on \nNovember 21, 2022.  Respondent is liable for payment of all reasonable and necessary \nmedical treatment provided in connection with claimant’s compensable injury.  In addition, \nclaimant  is  entitled  to  temporary  total  disability  benefits  beginning  November  30,  2022 \nand  continuing  through  January  24,  2023.    Respondent  has  controverted  claimant’s \nentitlement to indemnity benefits awarded herein. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \nRespondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $445.95. \n All sums herein accrued are payable in a lump sum without discount. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":21165,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208725 LAUREN FARLEY, Employee CLAIMANT OZARK REGIONAL VEIN & ARTERY CENTER, Employer RESPONDENT CONTINENTAL INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED JUNE 14, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washing...","outcome":"granted","outcomeKeywords":["granted:6"],"injuryKeywords":["back","cervical","lumbar","hip"],"fetchedAt":"2026-05-19T23:06:25.540Z"},{"id":"full_commission-H108270-2023-06-13","awccNumber":"H108270","decisionDate":"2023-06-13","decisionYear":2023,"opinionType":"full_commission","claimantName":"Orvi Galeas","employerName":"Ever Construction & Vg Construction","title":"GALEAS VS. EVER CONSTRUCTION & VG CONSTRUCTION AWCC# H108270 JUNE 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Galeas_Orvi_H108270_20230613.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Galeas_Orvi_H108270_20230613.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H108270 \n \nORVI GALEAS, EMPLOYEE  CLAIMANT \n \nEVER CONSTRUCTION & FIRSTCOMP                                    \nINSURANCE CO., EMPLOYER                                        RESPONDENT #1 \n \nVG CONSTRUCTION & LIBERTY MUTUAL INS.                         \nCOMPANY, INSURANCE CARRIER/TPA                        RESPONDENT #2 \n \nREYES PEREZ,UNINSURED                                           RESPONDENT #3 \n \n \nOPINION FILED JUNE 13, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE RANDY P. \nMURPHY, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2  represented by the HONORABLE ZACHARY F. \nRYBURN, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 3  pro se. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \n OPINION AND ORDER \n Respondents No. 2 appeal an opinion and order of the \nAdministrative Law Judge filed January 11, 2023.  In said order, the \nAdministrative Law Judge made the following findings of fact and \nconclusions of law: \n\nGALEAS – H108270 2\n  \n \n \n1.  The stipulations agreed to by the parties at a pre-\nhearing conference conducted on May 18, 2022 and \ncontained in a pre-hearing order filed that same date \nare hereby accepted as fact.    \n \n2.  Claimant has met his burden of proving by a \npreponderance of the evidence that he suffered a \ncompensable injury to his head and left elbow on \nAugust 5, 2021.    \n \n3.  Claimant is entitled to all reasonable and necessary \nmedical treatment provided in connection with his \ncompensable injury. \n \n4.  Claimant is entitled to payment of temporary total \ndisability benefits from August 6, 2021 through \nDecember 10, 2021.  \n \n5.  Claimant earned an average weekly wage of $880.00 \nper week which would entitle him to compensation at \nthe rates of $587.00 for total disability benefits and \n$440.00 for permanent partial disability benefits. \n \n6.  Respondent #2 is liable for payment of compensation \nbenefits pursuant to A.C.A. §11-9-402(a). \n \n7. Respondent #2 has controverted claimant’s entitlement \nto compensation benefits. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's January 11, \n2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n\nGALEAS – H108270 3\n  \n \n \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. §11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. §11-9-715(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \n \n \n \n \n \n\nGALEAS – H108270 4\n  \n \n \nCommissioner Mayton concurs, in part, and dissents, in part. \n \n \nCONCURRING and DISSENTING OPINION \n \n          I concur, in part, and dissent, in part, from the majority opinion.  \nSpecifically, I concur with the majority’s finding that the claimant suffered \ncompensable head and left elbow injuries on August 5, 2021, and that the \nclaimant is entitled to temporary total disability benefits from August 6 \nthrough December 10, 2021 to be paid by Respondent Number 2, VG \nConstruction. However, I dissent from the majority’s finding regarding the \nclaimant’s average weekly wage and his compensation rates.  \n         The testimony regarding the claimant’s average weekly wage is \nspeculative, at best. Conjecture and speculation, even if plausible, cannot \ntake the place of proof. Ark. Dept. of Correction v. Glover, 35 Ark. App. 32, \n812 S.W.2d 692 (1991). When the sole evidence of a claimant’s wages is \nbiased testimony, that evidence is speculative at best and cannot form the \nbasis of a claimant’s weekly compensation rate. Importantly, a claimant’s \ntestimony is never uncontroverted as a matter of law. Nix v. Wilson World \nHotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). \n          Here, the claimant provided no pay stubs, bank records, or employer \ntestimony reflecting his weekly pay. At the December 7, 2022 hearing, the \nclaimant testified that he was paid cash at the end of each work week. \n(Hrng. Tr., P. 15). His work had no predictability, sometimes working six \n\nGALEAS – H108270 5\n  \n \n \ndays in a row, and sometimes not working at all. (Hrng. Tr., Pp. 15-16). The \nclaimant’s testimony on cross-examination reflects this unpredictability. \nWhen asked, “So about how often would that happen that you would make \nthat low amount of money? Would that be once a month? Once every two \nmonths,” the claimant explained “Every month per month, I don’t know. \nSometimes it rained a month. Sometimes. I don’t know.” (Hrng. Tr., P. 31). \nAt another point in his testimony, the claimant was asked, “On the times \nwhen it would rain a lot, would you work a little less than six days,” to which \nhe responded, “Yes.” (Hrng. Tr., P. 6). Ultimately, the following exchange \nillustrates the unpredictability of the claimant’s work: \nQ: So the way I understand the roofing business is some \nweeks you are working full time and other weeks it might be \none or two days a week, depending on whether the work is \nthere; is that correct? \nA: Yes. \nQ: Some weeks you could work six days, some weeks you \ncould work no days? \nA: Sometimes three or four days. . . Well, like when it was \ncold, we didn’t work much. \nQ: Okay. It depends on the weather and also whether the \nwork was there; is that correct? \n\nGALEAS – H108270 6\n  \n \n \nA: Yes.  \n(Hrng. Tr., Pp. 15-16). \n          The claimant’s testimony reflects that there is, in fact, no record at all \nof his income from the time prior to August 5, 2021. When asked on cross-\nexamination if there was a tax record of what the claimant was paid in years \npast, he responded, “No.” (Hrng. Tr., P. 23). When asked if he has a bank \naccount that could reflect his income from this time, the claimant explained \n“I just opened that bank account so it doesn’t have – it has not been there a \nlong time. When I worked for [the respondents], I didn’t have one.” (Hrng. \nTr., P. 24). During the hearing, the claimant admitted that he has no records \nto show that this was a full-time position. Id. The entire basis of the average \nweekly wage determination here is the claimant’s own recollections. The \nclaimant describes entire months when he could not work at all and periods \nwhere he worked for six days at a time. Id.  \n          “Pursuant to Ark. Code Ann. §11-9-518(c) if exceptional \ncircumstances indicate that the average weekly wage cannot be fairly and \njustly determined by using any other formulas set forth in that statutory \nprovision, the Commission can determine the average weekly wage by a \nmethod that is just and fair to all parties concerned. The claimant has failed \nto produce any testimony from an uninterested party or any physical proof \nof his average weekly wage as of August 5, 2021. Since the claimant’s \n\nGALEAS – H108270 7\n  \n \n \naverage weekly wage cannot be determined, the claimant’s weekly wage \nshould be the minimum of $20.00 per week. The record contains no proof of \nthe claimant’s average weekly wage except for the confusing and self-\nserving statements of the claimant which do not support his position. \n          Accordingly, for the reasons set forth above, I respectfully concur, in \npart, and dissent, in part from the majority opinion. \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":8630,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H108270 ORVI GALEAS, EMPLOYEE CLAIMANT EVER CONSTRUCTION & FIRSTCOMP INSURANCE CO., EMPLOYER RESPONDENT #1 VG CONSTRUCTION & LIBERTY MUTUAL INS. COMPANY, INSURANCE CARRIER/TPA RESPONDENT #2 REYES PEREZ,UNINSURED RESPONDENT #3 ...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.309Z"},{"id":"full_commission-G906168-2023-06-13","awccNumber":"G906168","decisionDate":"2023-06-13","decisionYear":2023,"opinionType":"full_commission","claimantName":"Gail Tibbetts","employerName":"Westwood Primary School","title":"TIBBETTS VS. WESTWOOD PRIMARY SCHOOL AWCC# G906168 JUNE 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Tibbetts_Gail_G906168_20230613.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Tibbetts_Gail_G906168_20230613.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. G906168 \n \n \nGAIL TIBBETTS,  \nEMPLOYEE  CLAIMANT \n \nWESTWOOD PRIMARY SCHOOL,   \nEMPLOYER                 RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION., \nCARRIER/TPA RESPONDENT \n \n \nOPINION FILED JUNE 13, 2023 \n \nUpon  review  before  the  FULL  COMMISSION,  Little  Rock,  Pulaski  County, \nArkansas. \n \nClaimant represented by the HONORABLE JARID M. KINDER, Attorney at \nLaw, Ozark, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Reversed. \n \n \nOPINION AND ORDER \n \n            The claimant appeals a decision of the Administrative Law \nJudge filed on November 15, 2022.  The Administrative Law Judge found \nthat, inter alia, the claimant has failed to prove by a preponderance of the \nevidence that she is entitled to additional medical treatment regarding her \ncompensable right knee injury after Dr. Chris Arnold’s initial Change of \nPhysician evaluation in September 2020 and that the claimant has failed to \nprove by a preponderance of the evidence that she is entitled to temporary \n\nTIBBETTS – G906168                                                               2 \ntotal disability benefits from September 8, 2020, to a date yet to be \ndetermined  After our de novo review of the entire record, the Full \nCommission finds that the claimant has proven by a preponderance of the \nevidence that she is entitled to additional medical treatment as provided by \nDr. Arnold and additional temporary total disability benefits beginning on \nSeptember 8, 2020, and continuing to a date yet to be determined.\n               I.  HISTORY \n  The claimant, now 48 years old, worked for the respondent-\nemployer as a cook.  The claimant sustained an admittedly compensable \ninjury to her right knee in a workplace incident on September 13, 2019.  The \nclaimant testified that the accident happened in the following manner: \nQ Okay.  Now let’s jump into the real reason \n we are here, your workplace injury.  \n When  did you have your workplace \n injury? \n \nA September 13\nth\n of 2019.  It was Friday \n the 13\nth\n. \n \nQ  Okay.  What happened? \n \nA  I went into the walk-in cooler and I \n grabbed a couple of bags of lettuce.  I \n was walking out of the cooler with the \n lettuce and someone removed this \n grease pit rack from the floor and moved \n it and brought it in there, but nothing was \n there.  I didn’t realize it was not there.  So \n the floor was like an inch and a half off.  I \n\nTIBBETTS – G906168                                                             3 \n wasn’t even looking down and I just \n walked and I fell and that was it. \n \n... \n \nQ  Okay.  So what parts of your body were  \n injured? \n \nA  My knees, my elbows hurt, my knees hurt \n at that point. \n \nQ  Okay.  And let’s talk specifically about \n your knee because that is why we are \n here today. \n \nA  Yes. \n \nQ  Did you feel any sort of pain, pop, any \n type of sensation in your leg after you had \n the incident? \n \nA  Yes. \n \nQ  What was that sensation? \n \nA  It was like numbness and weakness and \n when I walked, it would give out. \n \nQ  Now, prior to this incident, had you had \n any problems with your knees? \n \nA  Never. \n \n  The claimant was seen at Mercy Clinic on the day of the work \naccident with the chief complaint of pain to her “L hip, R knee, R elbow”.  \nThe claimant returned to Mercy Clinic on September 16, 2019, with the \nsame complaints.  At this visit, Dr. Terry Clark noted, “Gail’s tertiary \n\nTIBBETTS – G906168                                                             4 \nproblem is pain located in the right knee.  She describes it as aching.  The \nproblem began on 9/13/2019.  Gail says it seems to be constant.  Her pain \nlevel is 8.”  An x-ray taken of the claimant’s right knee that day showed no \nradiographic abnormalities.  The claimant was diagnosed with sprain of \nother specified parts of right knee (patellar tendon), taken off work, and \nprescribed acetaminophen and ibuprofen.  Additionally, a right knee MRI \nwas scheduled. \n  The claimant underwent a right knee MRI on September 17, \n2019, which revealed the following: \nFINDINGS:  Medial and lateral menisci are intact \nwithout evidence of tear.  The anterior and \nposterior cruciate ligaments are intact without \nevidence of tear.  The medial and lateral \ncollateral ligaments are intact. \nNo focal articular cartilage defect or marrow \nedema.  Small popliteal cyst posteromedially.  \nThere is a thin zone of T2 hyperintensity in the \nprepatellar region consistent with prepatellar \nedema or bursitis. \n \nIMPRESSION: \n \n1. No appreciable internal arrangement of the \nknee joint. \n2. Small popliteal cyst posteromedially. \n3. Thin zone of prepatellar fluid which may be \nprepatellar bursitis.  \n \n  The claimant continued to experience right knee pain and \nreturned to Mercy Clinic for a follow-up visit on October 14, 2019.  During \n\nTIBBETTS – G906168                                                             5 \nthis visit, a plan of care was devised that included placing the claimant in a \nhinged knee brace “3x/week for 3 weeks” and “start[ing] physical therapy as \nscheduled”. \n  The claimant underwent six sessions of physical therapy \nbefore Dr. Clark determined she had reached maximum medical \nimprovement (hereinafter, “MMI”) on November 4, 2019, and released the \nclaimant to full duty effective November 1, 2019.  The claimant was \ndischarged from physical therapy after one additional session. \n  The claimant returned to see Dr. Clark on November 25, \n2019.  Dr. Clark noted, “She has had no improvement in the right knee \nsymptoms despite being off work, medications, physical therapy and time.  \nFor this reason, it is felt to be medically prudent at this time to seek the \nopinion of orthopedics.” \n  The claimant was seen by Patrick Walton, PA at Mercy Clinic \nOrthopedics River Valley on December 13, 2019.  After examining the \nclaimant, Walton’s impression was “plica syndrome of the right knee”.  \nWalton noted the following plan: \nPLAN:  She has never had an injection and I I \n[sic] think we should fail that first before we \ndiscussed [sic] any type of surgical intervention.  \nThat is a possibility.  Resection of this plica is \nsomething that could be considered if she fails \nthe injection.  She is happy with getting an \ninjection and not wanting surgery unless it is \nabsolutely necessary.  She has been on \nunrestricted duty.  We will continue that.  We are \n\nTIBBETTS – G906168                                                             6 \ngoing to get her a brace.  She is complaining of \nsome weakness and I think that is probably due \nto just 3 months of knee pain and some \nweakness because she has not been able to \nrehab it well enough because of the pain.  The \nbrace I think will help with that.  She will \ncontinue those exercises.  We will see her back \nin a month to discuss the effects of the injection.  \nInjection of 5 mL of 0.5% Marcaine and 2 mL of \nbetamethasone in the right after her consent \nwas obtained.  No x-rays needed with her return. \n \n  An x-ray taken during this visit showed “minimal joint space \nnarrowing and minimal degenerative disease.  No acute fractures.” \n  The claimant returned to see PA Walton on January 17, 2020.  \nWalton noted that following the injection the claimant felt like she was \nprobably 90%-95% better.  However, she had not tested the knee because \nshe had the flu and was primarily off for three weeks.  Walton indicated that \n“if it flares up again, I think she would be a candidate for a scope to resect \nher plica.” \n  At the claimant’s next visit to see PA Walton, he \nrecommended that the claimant “have a formal excision of her plica from \nthe right knee through an arthroscopy”. \n  On March 18, 2020, Dr. Steven Smith performed a right knee \narthroscopy and resection of anteromedial plica.  Dr. Smith noted in the \nDescription of Procedure: \n... Moderate scarring in suprapatellar pouch \nseen with a large medial shelf medial \nchondromalacia noted where the plica had been \n\nTIBBETTS – G906168                                                             7 \nabrading this area.  Also a small area of very \nsuperficial grade 3 on the weightbearing portion \nof the medial femoral condyle with no flap \ninstability.  Medial meniscus was normal.  ACL \nand PCL normal.  Lateral compartment normal. \n... \n \n  Dr. Smith released the claimant to regular duty with no \nrestrictions on May 26, 2020, noting, “I believe she is at MMI.  She has no \npermanent impairment.” \n  The claimant exercised her right to a one-time change of \nphysician and began receiving treatment from Dr. Chris Arnold.  The \nclaimant’s initial visit with Dr. Arnold was on September 8, 2020.  Dr. Arnold \nnoted the following impressions: \n45 year old female with right knee pain \nsecondary to chondral defect MFC. \nShe had a work injury one year ago.  She had a \nknee scope March 2020 by a doctor in Fort \nSmith which did not help.  Op report reviewed \nshowing grade 3 chondral defect medial femoral \ncondyle.  She continues to have right knee pain, \nswelling, locking which is bothersome with daily \nactivities. \n \n  Dr. Arnold diagnosed claimant with right knee chondromalacia \nand recommended “CSI and MRI to evaluate for chondral defect/flap”.  Dr. \nArnold provided the claimant with a steroid injection and ordered an MRI. \n  The claimant underwent a right knee MRI on September 18, \n2020.  The MRI revealed the following: \nFINDINGS: \n\nTIBBETTS – G906168                                                             8 \nCompared with 17 September, 2019.  Very small \npopliteal cyst actually appears smaller than the \nprevious years exam.  Tear of the anterior horn \nof the lateral meniscus which is a progressive \nfinding from previous years exam.  The cruciate \nand collateral ligaments are intact.  \nDegenerative type changes within the medial \nmeniscus with no definite tear.  Small knee joint \neffusion.  Resolution of previous patellar edema \nsince prior exam.  No significant chondromalacia \nof the patella. \n \nIMPRESSION: \nSmall joint effusion.  Small tear anterior horn \nlateral meniscus.  Tiny popliteal cyst. \n \n  In his September 22, 2020 office notes, Dr. Arnold noted the \nfollowing impression: \n45-year-old female with right knee pain \nsecondary to lateral meniscus tear and chondral \ndefect/flap mfc. \n \n  Dr. Arnold performed an arthroscopy on the claimant on \nOctober 23, 2020.  Dr. Arnold took the claimant off work until January 1, \n2021.  The claimant returned to Dr. Arnold on January 25, 2021, for a \nfollow-up visit.  During this visit, the claimant continued to complain of right \nknee pain.  Dr. Arnold discussed surgery as a treatment option, noting, “I \nexplained that though I am not recommending a surgical intervention at this \ntime, this may be recommended or necessary in the future to alleviate or \ntreat this condition, especially if conservative measures fail or the condition \ncontinues to progress or worsen.” \n\nTIBBETTS – G906168                                                             9 \n  On September 24, 2021, the claimant underwent a right total \nknee arthroplasty.  Dr. Arnold explained the necessity for this intervention \nas follows: \nPlan: Counseling – Knee DJD \nSurgical Options and Alternatives \nTotal knee replacement: In review of the clinical \nrecord and by patient report, the patient has \nprogressively worsening right knee pain and \ninstability that has been recalcitrant to non-\nsurgical treatments.  The patient is unable to \ncomplete their activities of daily living without \nfunctionally limiting pain.  The patient has failed \nobservation.  They have failed a home exercise \nprogram that included quad \nstrengthening/stretching exercises for greater \nthan 12 weeks.  They have attempted a course \nof anti-inflammatory medications consisting of \nibuprofen as needed, this has offered short term \nrelief, but the patient’s symptoms continue.  \nThey have failed rest, corticosteroid injections, \nand wearing of an unloader brace.  Their \nsymptoms are too advanced for arthroscopic \ntreatment.  Further options were reviewed with \nthe patient of continued observation vs. further \nworkup, vs. surgical intervention.  They wish to \nproceed with surgical intervention consisting of a \nright total knee arthroplasty using ROSA robotic \nsystem.   \n \n  The claimant began experiencing stiffness in her right knee \nsecondary to arthrofibrosis.  To address the arthrofibrosis, the claimant \nunderwent a right total knee manipulation on December 1, 2021. \n \n\nTIBBETTS – G906168                                                             10 \n  Dr. Ethan Schock reviewed the claimant’s medical records on \nbehalf of the respondents and provided a report dated August 3, 2022.  Dr. \nSchock opined the following: \n[It] is my opinion that the patient’s mechanism of \ninjury, description of symptoms, radiologic \nstudies, and intraoperative findings do not \nsuggest a reasonable causality and necessary \nassociation for the orthopedic treatments – office \nvisits, radiologic studies (MRI, x-ray, ultrasound), \nor surgical intervention (second arthroscopic \nprocedure, total knee arthroplasty, and \nmanipulation under anesthesia). \n \nThere does not appear to be a[n] MRI \ndocumented structural defect nor arthroscopic \nintraoperative observation from 10/23/2020, to \nsuggest a causal relationship from the 9/13/2019 \nwork-related injury. \n \nThere does not appear to be any evidence to \nsuggest an acute structural injury that can be \nassociated with the 9/13/2019 work-related \ninjury that could, within a reasonable degree of \nmedical certainty, be directly causal to the \ndevelopment of osteoarthritis or need for total \nknee arthroplasty in such a short period of time \n(September 2019 to November 2020[)] (the date \nat which Dr. Arnold recommended this surgery). \n \nRather, all described radiologic and \nintraoperative findings appear to be consistent \nwith a more chronic, preexisting, and \ndegenerative process. \n \n  A Pre-hearing Order was filed on May 25, 2022.  The \nclaimant’s contentions are as follows: \n1. The Claimant, Gail Tibbets [sic], sustained a \ncompensable right knee injury on September 13, \n\nTIBBETTS – G906168                                                             11 \n2019, while working for Westwood Primary \nSchool in Greenwood, Arkansas. \n2. Despite objective evidence of injury and \nproviding medical and temporary total disability \nbenefits, the Respondents later denied \ncompensability of the Claimant’s right knee \ninjury. \n3. The Claimant contends she is owed medical \nbenefits for her right knee injury, including, but \nnot limited to, a total knee replacement. \n4. The Claimant contends she is owed \ntemporary total disability benefits from \nSeptember 8, 2020, to a date yet to be \ndetermined. \n5. Due to the controversion of entitled benefits, \nthe Respondents are obligated to pay [one] half \nof the Claimant’s attorney’s fees on both future \nand past indemnity benefits. (Lula L. Garrett v. \nSuperior Marketing Service, Full Commission \nOpinion filed November 5, 2001 (E903251)). \n6. Claimant reserves the right to raise additional \ncontentions at the hearing of this matter. \n \n  “Respondents contend that all appropriate benefits have been \npaid with regard to Claimant’s compensable knee injury sustained on \n9/13/19.  Dr. Steven Smith opined that Claimant reached MMI on 5/26/20, \nand Claimant was released to full duty with no permanency being assigned.  \nDr. Smith also confirmed that Claimant’s lateral meniscus was intact when \nhe did surgery on 3/18/20.  As such, Claimant’s need for treatment after \nthat date, if any, is due to a new tear or injury.  Additional medical treatment \nis no longer reasonable and necessary or associated with the 9/13/19 date \nof injury.  [With] regard to the statue [sic] of limitations, Claimant filed a \nForm C on 2/12/20, seeking only additional medical treatment.  The statute \n\nTIBBETTS – G906168                                                             12 \nof limitations has run on all other benefits, as the last medical and indemnity \nwere both paid in September of 2020.” \n  The parties agreed to litigate the following issues:  \n(1) Whether the Claimant is entitled to additional \nmedical treatment regarding her compensable \nright knee injury after Dr. Christopher Arnold’s \ninitial Change of Physician evaluation in \nSeptember 2020. \n \n(2) Whether the Claimant is entitled to temporary \ntotal disability benefits from September 8, 2020, \nto a date yet to be determined. \n \n(3) Respondent raised statute of limitations as \nan affirmative defense regarding indemnity \nbenefits. \n \n(4) Whether Claimant’s attorney is entitled to an \nattorney fee. \n \n After a hearing, an Administrative Law Judge filed an opinion \non November 15, 2022.  The Administrative Law Judge found: \n1.  The stipulations agreed to by the parties at \nthe pre-hearing conference conducted on May \n25, 2022, and contained in a Pre-hearing Order \nfiled May 25, 2022, are hereby accepted as fact. \n \n2.  The claimant has failed to prove by a \npreponderance of the evidence, that she is \nentitled to additional medical treatment \nregarding her compensable right knee injury \nafter Dr. Chris Arnold’s initial Change of \nPhysician evaluation in September 2020.  \n \n3. The claimant has failed to prove by a \npreponderance of the evidence that she is \nentitled to temporary total disability benefits from \n\nTIBBETTS – G906168                                                             13 \nSeptember 8, 2020, to a date yet to be \ndetermined. \n \n4.  The issue of statute of limitations raised by \nthe respondent in this matter is moot as the \nclaimant is unable to prove entitlement to any \nindemnity benefits at this time. \n \n5. The claimant has failed to prove that her \nattorney is entitled to an attorney’s fee in this \nmatter. \n \n The claimant appeals these findings to the Full Commission. \n II.  ADJUDICATION \n       A.  Additional Medical Treatment \n       An employer shall promptly provide for an injured employee \nsuch medical treatment as may be reasonably necessary in connection with \nthe injury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). \n  An employee is not required to prove that her compensable \ninjury is the major cause for the need for treatment unless she is seeking \npermanent benefits; when the employee has suffered a specific injury and \nis only seeking medical benefits and temporary total disability, the major-\ncause analysis is not applicable, and the employee need only show that the \n\nTIBBETTS – G906168                                                             14 \ncompensable injury was a factor in the need for additional medical \ntreatment.  Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d \n383 (2004). \n  The Full Commission finds that the treatment, including \nsurgical interventions performed by Dr. Arnold, was reasonably necessary.  \nThe claimant sustained a compensable right knee injury on September 13, \n2019.  The claimant testified that she had never experienced pain in her \nright knee prior to her workplace accident.  The claimant received \nconservative treatment and a right knee arthroscopy and resection of \nanteromedial plica prior to Dr. Smith’s determination that she had reached \nMMI on May 26, 2020.   \n  After the determination of MMI was reached, the claimant \ncontinued to experience pain and chose to change physicians from Dr. \nSmith to Dr. Arnold.  When Dr. Arnold first examined the claimant he noted \nthat the claimant continued to suffer from right knee pain, swelling, and \nlocking and diagnosed her with right knee chondromalacia.  Dr. Arnold \nrelated the claimant’s knee chondromalacia to her work accident, noting, \n“She had a work injury with a chondral defect medial femoral condyle grade \n3.”  In addition, Dr. Smith noted that the plica (which was treated as part of \nthe claimant’s compensable injury) was abrading the medial \nchondromalacia.  Additionally, Dr. Arnold indicates that the claimant’s need \n\nTIBBETTS – G906168                                                             15 \nfor additional treatment was caused by a meniscus tear and chondral \ndefect. \n  We also note that the record is void of evidence of any \nadditional significant accidents or injuries to the claimant’s right knee \nbetween May 26, 2020 (when Dr. Smith determined she was at MMI) and \nSeptember 8, 2020 (when she first saw Dr. Arnold).  Clearly, the claimant’s \ncompensable right knee injury was a factor in the need for additional \nmedical treatment.  \n  We are not unmindful of Dr. Schock’s opinion; however, we \nassess greater weight to the statements of Dr. Arnold who is the claimant’s \ntreating physician. \n  Based on the aforementioned, we find that the treatment \nprovided by Dr. Arnold was reasonably necessary and causally connected \nto the claimant’s September 13, 2019, work injury. \n  Therefore, the Full Commission finds that the claimant has \nproven by a preponderance of the evidence that she is entitled to the \nreasonable and necessary medical treatment provided in relation to her \ncompensable right knee injury which was provided by Dr. Arnold.  \n  B.  Additional Temporary Total Disability Benefits \n  Ark. Code Ann. §11-9-521 provides that for scheduled \ninjuries, an injured worker is entitled to temporary total benefits during the \nhealing period or until the employee returns to work.  It is not necessary for \n\nTIBBETTS – G906168                                                             16 \na claimant with a scheduled injury to prove that she is totally incapacitated \nfrom earning wages in order to collect temporary total disability benefits.  \nFendley v. Pea Ridge Sch. Dist., 97 Ark. App. 214, 245 S.W.3d 676 (2006).  \nRather, she is entitled to temporary total disability benefits during her \nhealing period or until she returns to work, whichever occurs first, \nregardless of whether she has demonstrated that she is actually \nincapacitated from earning wages.  Wheeler Const. Co. v. Armstrong, 73 \nArk. App. 146, 41 S.W.3d 822 (2001).  \n   “Healing period” means that period for healing of an injury \nresulting from an accident.  Ark. Code Ann. §11-9-102(12).  The healing \nperiod has not ended so long as treatment is administered for the healing \nand alleviation of the condition. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. \nApp. 200, 785 S.W.2d 51 (1990); Mad Butcher Inc. v. Parker, 4 Ark. App. \n124, 628 S.W.2d 582 (1982). \n  The Full Commission finds that the claimant is entitled to \nadditional temporary total disability benefits.   In the present matter, the \nclaimant suffered a compensable injury to her right knee.  At the August 18, \n2022 hearing, the claimant testified that she was not working because she \nwas terminated from her job on September 8, 2020 and because, as she \nexplained, “I am still in a lot of pain.  I can hardly walk.  I can hardly get up.  \nI can hardly move.  I can hardly turn.  I can hardly bend.”  Additionally, there \n\nTIBBETTS – G906168                                                             17 \nis not a medical record from Dr. Arnold within the Commission’s record \nshowing that the claimant has reached MMI. \n  Since the claimant sustained a scheduled injury, remained \nwithin her healing period, and has not returned to work, the Full \nCommission finds that the claimant is entitled to additional temporary total \ndisability beginning on September 8, 2020, and continuing to a date yet to \nbe determined. \n  C. Statute of Limitations \n  The statute of limitations for workers’ compensation claims is \nset forth in A.C.A. §11-9-702 (a) as following: \n  A.C.A. §11-9-702(b) states, in pertinent part: \n \nIn cases in which any compensation, including \ndisability or medical, has been paid on account \nof injury, a claim for additional compensation \nshall be barred unless filed with the commission \nwithin one (1) year from the date of the last \npayment of compensation or two (2) years from \nthe date of the injury, whichever is greater. \n \n  In overruling Kirk v. Central States Manufacturing, 2018 Ark. \nApp. 78, the Arkansas Supreme Court held that under a plain reading of \nArk. Code Ann. § 11-9-702(b)(1), the statute of limitations on a request for \nadditional workers’ compensation benefits commences when the last \npayment, whether for disability or medical benefits, is made. Wynne v. \nLiberty Trailer, 2022 Ark. 65, 641 S.W.3d 621. \n\nTIBBETTS – G906168                                                             18 \n  Here, the claimant filed a Form C seeking additional medical \nexpenses on February 13, 2020.  The last payment for medical benefits \nwas made on September 22, 2020.  The claimant’s Form C was clearly filed \nwithin one year of the date that the last payment was issued.  Therefore, \nthe statute of limitations has not run on the claimant’s claim for indemnity \nbenefits as the respondents contend. \n       III. Conclusion     \n   Based on our de novo review of the entire record, the Full \nCommission finds that the claimant has proven by a preponderance of the \nevidence that she is entitled to reasonable and necessary medical \ntreatment provided in relation to her compensable right knee injury, which \nwas provided by Dr. Arnold and additional temporary total disability benefits \nbeginning on September 8, 2020, and continuing to a date yet to be \ndetermined.  The Full Commission further finds that the statute of limitations \nhas not run in this matter.  The claimant’s attorney is entitled to fees for \nlegal services in accordance with Ark. Code Ann. §11-9-715(a) (Repl. \n2012).   For prevailing on appeal to the Full Commission, the claimant’s \nattorney is entitled to an additional fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b) (Repl. 2012). \n \n \n \n\nTIBBETTS – G906168                                                             19 \n IT IS SO ORDERED. \n \nSCOTTY DALE DOUTHIT, Chairman \n \n \n      ______________________________________ \n M. SCOTT WILLHITE, Commissioner  \n \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n  I must respectfully dissent from the Majority’s determination that the \nclaimant has met her burden of proving by a preponderance of the evidence \nthat she is entitled to additional medical treatment provided by Dr. Arnold. I \nmust further dissent from the Majority’s findings that the statute of \nlimitations for indemnity benefits was tolled by the February 12, 2020 Form \nAR-C requesting additional medical benefits and that the claimant is entitled \nto additional temporary total disability benefits beginning on September 8, \n2020 and continuing to a date to be determined. \n Our rules provide that the respondent must provide any medical \ntreatment \"as may be reasonably necessary in connection with the injury \nreceived by the employee.\" Ark. Code Ann. § 11-9-508(a). The claimant has \nthe burden of proving by a preponderance of the evidence that the \nadditional medical treatment requested was reasonable and necessary. \n\nTIBBETTS – G906168                                                             20 \nAmaya v. Newberry's 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008). \n\"What constitutes reasonable and necessary treatment under this statute is \na question of fact for the Commission to decide.\" Id. The claimant’s \ncontention that the respondent carrier is responsible for the surgery and \nfollow-up treatment provided by Dr. Chris Arnold disregards the objective \nmedical findings found in the claimant’s September 17, 2019 and \nSeptember 18, 2020 MRIs. The 2019 MRI, as reported by Dr. Terry Clark, \nfound in relevant part: “1. No appreciable internal arrangement [sic] of the \nknee joint. 2. Small popliteal cyst posteromedially. 3. Thin zone of \nprepatellar fluid which may be prepatellar bursitis.” (Resp. Ex. 1, P. 1). This \nfinding was later confirmed by Dr. Steven Smith, who on March 18, 2020 \nperformed a right knee arthroscopy and resection of anteromedial plica. \n(Resp. Ex. 1, Pp. 4-6). Dr. Smith’s postoperative diagnosis was consistent \nwith the September 2019 MRI—plica syndrome and a superficial grade 3 \nchondromalacia of medial femoral condyle. Id. Dr. Smith’s operative report \nstated that the claimant’s “Medial meniscus was normal. ACL and PCL \nnormal. Lateral compartment normal.” Id. On May 26, 2020, the claimant \nreturned to Dr. Smith complaining of some achiness in her knee, but Dr. \nSmith opined that “overall her knee looks quite good. I am going to release \nher to regular duty. I believe she is at MMI. She has no permanent \nimpairment.” (Resp. Ex. 1, P. 8). \n\nTIBBETTS – G906168                                                             21 \n The claimant later obtained a change of physician order granted by \nthe Commission and began treating with Dr. Chris Arnold on September 8, \n2020. Dr. Arnold obtained a second MRI, and when compared with the \nSeptember 17, 2019 MRI, Dr. William Hocott found a “[t]ear of the lateral \nmeniscus which is a progressive finding from the previous year” and \n“[d]egenerative changes within the medial meniscus with no definite tear.” \n(Clt. Ex. 1, P. 116). Pursuant to these findings, Dr. Arnold performed a right \nknee arthoscopy on the claimant on October 23, 2020 and later a total right \nknee replacement on September 24, 2021. (See Clt. Ex. 1, Pp. 131, 159-\n160). However, the findings of the 2020 MRI are in contradiction to the 2019 \nMRI as well as Dr. Arnold’s surgical findings. The claimant’s adjuster, Misty \nThompson, obtained an additional opinion from Dr. Ethan Schock, an \northopedic surgeon, who reviewed the claimant’s records, MRIs, and \nsurgical reports to determine whether in his expert opinion the treatment \nafter Dr. Smith’s MMI date of May 26, 2020 was reasonable and necessary. \n(See Resp Ex. 1, Pp. 15-17). Dr. Schock’s report references Dr. Arnold’s \nOctober 23, 2020 report, not submitted into evidence by either party, \nstating, “[o]perative note describes grade 3 patellofemoral, grade 3 medial \nfemoral condyle degenerative changes, ‘extensor mechanism \nmalalignment’ and no evidence of tear of the medial or lateral meniscus.” \n(Resp. Ex. 1, Pp. 16-17). Dr. Schock opines that “the patient’s mechanism \nof injury, description of symptoms, radiologic studies, and interoperative \n\nTIBBETTS – G906168                                                             22 \nfindings do not suggest a reasonable causality and necessary association \nfor the orthopedic treatments, office visits, radiologic studies (MRI, x-ray, \nultrasound), or surgical intervention (second arthroscopic procedure, total \nknee arthroplasty, and manipulation under anesthesia).” Id. \n It is within the Commission's province to reconcile conflicting \nevidence, including the medical evidence, and to determine the true facts. \nHernandez v. Wal-Mart Assocs., 2009 Ark. App. 531, 337 S.W.3d 531 \n(2009); Pyle v. Woodfield, Inc., 2009 Ark. App. 251, 306 S.W.3d 455 \n(2009). Further, the Commission is entitled to review the basis for medical \nopinions in deciding the weight and credibility of the opinion and medical \nevidence. Aegon Ins. United States v. Durham-Gilpatrick, 2010 Ark. App. \n826, 378 S.W.3d 773, (2010). In the present case, it is clear that the weight \nof the medical evidence proves that the claimant’s surgical interventions \nprovided by Dr. Arnold were not reasonably necessary or related to her \ncompensable September 13, 2019 right knee injury. The findings of the \nSeptember 2019 MRI were unequivocal in showing that there was no lateral \nor medial meniscus tear. The operative report of Dr. Smith and the \noperative report of Dr. Arnold, as provided by Dr. Schock, support the fact \nthat the claimant never suffered a meniscus tear of any sort. The 2020 MRI \nreading provided by Dr. Hocott is an outlier and does not comport with the \nfacts as reasonably interpreted. Dr. Arnold’s treatment and two surgeries, \nincluding a total knee replacement, were based on an MRI reading by Dr. \n\nTIBBETTS – G906168                                                             23 \nHocott which was clearly in error and not supported by any of the surgical \nfindings. \n “In order to be entitled to temporary total disability benefits, a \nclaimant must prove by a preponderance of the evidence that he remained \nin his healing period and suffered a total incapacity to earn wages.” \nArkansas State Highway & Transp. v. Breshears, 272 Ark. 244, 613 S.W.2d \n392 (1981). In the present case, the claimant’s healing period ended on \nMay 26, 2020 when released at MMI by Dr. Smith. As any medical \ntreatment after that date was not causally related to her September 2019 \ninjury, she is not entitled to benefits for any disability arising from that \ntreatment. \n As a secondary matter, the claim for additional indemnity benefits is \nbarred by the statute of limitations. The claimant submitted a form AR-C on \nFebruary 12, 2020, requesting only additional medical benefits. The \nclaimant made no written request for additional indemnity benefits until her \nResponse to the Prehearing Questionnaire was filed on April 26, 2022. In \ncases in which any compensation, including disability or medical, has been \npaid on account of injury, a claim for additional compensation shall be \nbarred unless filed with the commission within one (1) year from the date of \nthe last payment of compensation or two (2) years from the date of the \ninjury, whichever is greater. Ark. Code Ann. § 11-9-702(b)(1). A claim for \nadditional compensation must specifically state that it is a claim for \n\nTIBBETTS – G906168                                                             24 \nadditional compensation. Documents which do not specifically request \nadditional benefits shall not be considered a claim for additional \ncompensation. Ark. Code Ann. § 11-9-702(c). While certain claims may toll \nthe running of the statute of limitations, such claims cannot revive other \nforms of compensation once the statute has run. Flores v. Walmart \nDistribution, 2012 Ark. App. 201 (2012). The Arkansas Court of Appeals \nhas made it clear that the statute of limitations can run on a claim for \nadditional indemnity benefits and not have run on additional \nmedical benefits. Id. Our rules are clear that tolling the statute of limitations \nfor additional medical benefits does not inherently toll the statute with \nregard to indemnity benefits if additional indemnity benefits are not \nspecifically requested. I believe that the statue of limitations has expired for \nadditional indemnity benefits due to claimant’s failure to submit a written \nrequest, by way of a Form C or otherwise, for additional indemnity benefits \nuntil April of 2022. For this reason, I would find the claimant is not entitled to \nany additional indemnity benefits resulting from her February 12, 2020 \ninjury. \nFor the reasons stated above, I respectfully dissent. \n                                                                      \n \n     \nMICHAEL R. MAYTON, Commissioner","textLength":35458,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G906168 GAIL TIBBETTS, EMPLOYEE CLAIMANT WESTWOOD PRIMARY SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION., CARRIER/TPA RESPONDENT OPINION FILED JUNE 13, 2023 Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas. Clai...","outcome":"granted","outcomeKeywords":["granted:3","denied:2"],"injuryKeywords":["knee","hip","sprain","back"],"fetchedAt":"2026-05-19T22:29:46.325Z"},{"id":"alj-H205509-2023-06-13","awccNumber":"H205509","decisionDate":"2023-06-13","decisionYear":2023,"opinionType":"alj","claimantName":"Michelle Brazeal","employerName":"Mighty Crab","title":"BRAZEAL VS. MIGHTY CRAB AWCC# H205509 JUNE 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BRAZEAL_MICHELLE_H205509_20230613.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BRAZEAL_MICHELLE_H205509_20230613.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H205509 \n \nMICHELLE BRAZEAL, Employee     CLAIMANT \n \nMIGHTY CRAB, Employer      RESPONDENT \n \nAMTRUST NORTH AMERICA, Carrier/TPA        RESPONDENT \n \n \n OPINION FILED JUNE 13, 2023  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by WILLIAM C. FRYE, Attorney at Law, North Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn August 3, 2022, the claimant filed an AR-C requesting various compensation benefits \nin which she alleged an injury to her head. The claim was denied in its entirety. On August 31, \n2022,  the  claimant  submitted  a  hearing  request  to  the  Legal  Advisor  Division  of  the  Arkansas \nWorkers’  Compensation  Commission;  however,  there  has  been  no  further  communication  or \naction taken by the claimant.  \n On March 13, 2023, the respondents filed a Motion to Dismiss requesting that this claim \nbe  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for  June  1,  2023.  Notice  of  that \nhearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on  April  25,  2023. \nUnited States Postal Department records indicate that claimant received and signed for the notice \n\nBrazeal – H205509 \n \n-2- \non April 27, 2023. Despite having received notice of the scheduled hearing, the claimant failed to \nappear at the hearing and has failed to respond to the motion in any form or manner. \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2547,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H205509 MICHELLE BRAZEAL, Employee CLAIMANT MIGHTY CRAB, Employer RESPONDENT AMTRUST NORTH AMERICA, Carrier/TPA RESPONDENT OPINION FILED JUNE 13, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claim...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:06:23.467Z"},{"id":"alj-H204691-2023-06-12","awccNumber":"H204691","decisionDate":"2023-06-12","decisionYear":2023,"opinionType":"alj","claimantName":"Sherie Lawrence","employerName":"Jonesboro School District","title":"LAWRENCE VS. JONESBORO SCHOOL DISTRICT AWCC# H204691 JUNE 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//LAWRENCE_SHERIE_H204691_06122023.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LAWRENCE_SHERIE_H204691_06122023.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204691 \n \nSHERIE LAWRENCE, EMPLOYEE  CLAIMANT \n \nJONESBORO SCHOOL DISTRICT, \nEMPLOYER                                                                                                RESPONDENT \n \nARKANSAS SCHOOL BOARD ASSOCIATION, \nINSURANCE CARRIER/TPA                                                                            RESPONDENT \n \n \nOPINION FILED JUNE 12, 2023 \n \nHearing before Administrative Law Judge Steven Porch on June 9, 2023 in Little Rock, \nPulaski County, Arkansas. \n \nClaimant, pro se. \n \nThe Respondents were represented by Ms. Melissa Wood, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on  June 9, 2023, in Little Rock, \nArkansas.  Claimant, who is pro se, did not appear for the hearing.  Respondents were \nrepresented  at  the  hearing  by  Ms.  Melissa  Wood,  Attorney  at  Law,  of  Little Rock, \nArkansas. In addition to Respondent’s argument, the record consists of the Commission’s \nfile, which has been incorporated herein in its entirety by reference, including all exhibits \nproperly admitted before the Commission. \n The evidence reflects that Claimant’s injury occurred on May 17, 2022, where she \npurportedly  injured  her  face,  knees,  and  feet.  This  incident  allegedly  occurred  when \nClaimant tripped over an agility ladder striking her face, knees, and feet. A hearing was \n\nLAWRENCE H204691 \n \n \n2 \nheld  on  June  9,  2023,  in  Jonesboro,  Arkansas,  on  the  Motion  to  Dismiss.  And  as \npreviously stated, the Claimant did not appear for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute her claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \n\nLAWRENCE H204691 \n \n \n3 \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven  reasonable  notice,  at  the  addresses  provided  by  each  party,  for  the Motion  to \nDismiss hearing under Rule 13. I further find that Claimant has abridged this rule. Thus I \nfind Respondent’s Motion to Dismiss should be granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4605,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204691 SHERIE LAWRENCE, EMPLOYEE CLAIMANT JONESBORO SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARD ASSOCIATION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 12, 2023 Hearing before Administrative Law Judge Steven Porch on June 9, 2023 in...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:06:15.104Z"},{"id":"alj-H107091-2023-06-12","awccNumber":"H107091","decisionDate":"2023-06-12","decisionYear":2023,"opinionType":"alj","claimantName":"Margaret Macon","employerName":"Mineral Springs, Saratoga School District","title":"MACON VS. MINERAL SPRINGS, SARATOGA SCHOOL DISTRICT AWCC# H107091 JUNE 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MACON_MARGARET_H107091_20230612.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MACON_MARGARET_H107091_20230612.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.:H107091  \nMARGARET A. MACON,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nMINERAL SPRINGS, SARATOGA SCHOOL DISTRICT,  \nEMPLOYER                                                                                                         RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION,  \nWCT                                                                                                                       RESPONDENT \n \n \n             OPINION FILED JUNE 12, 2023      \n        \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Texarkana, \nMiller County, Arkansas. \n \nClaimant represented by the Honorable Gregory R. Giles, Attorney at Law, Texarkana, Arkansas. \n \nRespondents  represented  by  the  Honorable  Melissa  Wood,  Attorney  at  Law,  Little  Rock, \nArkansas. \nStatement of the Case \nOn  March  14,  2023,  the  above-captioned  claim  came  on  for  a  hearing in  Texarkana, \nArkansas.  Previously, a prehearing telephone conference was conducted in this matter on January \n11, 2023 from which a Prehearing Order was filed on that same day.  A copy of the order and both \nparties’ responsive filings have been marked as Commission’s Exhibit 1 and made a part of the \nrecord.   \nStipulations \nDuring  the  prehearing  telephone  conference,  and/or  hearing  the  parties  agreed  to  the \nfollowing stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n\nMacon- H107091 \n \n2 \n \n2. That  the  employee-employer-insurance  carrier  relationship  existed  at  all  relevant \ntimes, including on or about October 6, 2020.  \n3. The Claimant’s average weekly wage on the  day  of  her  accidental  injury  was \n$1,105.92, which was sufficient to entitle her to corresponding compensation rates \nof  $711.00  per  week  for  temporary  total  disability  (TTD)  compensation,  and \n$533.00 a week for permanent partial disability (PPD) benefits.  \n4. The Respondents have controverted this claim in its entirety.  \n5. All   issues   not   litigated   herein   are reserved  under  the  Arkansas  Workers’ \nCompensation Act. \nIssues \nBy  agreement  of  the  parties,  at  the  start  of  hearing,  the  parties  modified  the  issues  and \nnarrowed them down to the following: \n1. Whether  the  Claimant  sustained  compensable  injuries  to  her  neck  and  back  as  a \nresult of her October 6, 2020 work-related accidental fall. \n2. Whether  the Claimant’s  medical  treatment  of  record  is  reasonable  and  necessary \nmedical treatment for her neck and back injuries, and if she is entitled to any other \nrecommended   treatment   (particularly,   that   of   Dr.   Rajesh   Arakal)   for   these \nconditions, including but not limited to pain management follow-up visits with her \ntreating physicians. \nContentions \n The respective contentions of the parties are as follows: \nClaimant: \n(a)  The Claimant contends that she sustained compensable injuries to her neck  \n\nMacon- H107091 \n \n3 \n \nand back on or about October 6, 2022, when a desk that she was leaning against collapsed \nand  she  fell  to  the  floor.    She  initially  complained  of  low  back  pain  and  hip  pain  and \nsubsequently developed neck pain, pre-existing history of herniated disc at C4-5 and C5-\n6, new disc herniations at C6-7 at C6-7 following this accident; \n(b)  Claimant contends that the medical treatment she received after October 6 associated  \nwith her neck and back pain was reasonable and necessary such that Respondents should \nbe ordered to pay for same; \n(c)  Claimant contends she would been entitled to temporary total disability benefits for  \nany days that she missed from work and contends that she would be entitled to at least a \n5% impairment rating associated with the aggravation of the pre-existing conditions and \nnew disc herniations; and \n(d)  Claimant contends Respondents should be ordered to pay attorney’s fees as provided  \nby law.    \nRespondents: \nRespondents  contend  that  Claimant  did  not  sustain  a  compensable  injury  on \nOctober 6, 2020.  There was no injury in the course and scope of employment, and there \nare no objective findings of an acute injury.  Claimant’s need for treatment is associated \nwith a pre-existing condition.  The records do not support entitlement to indemnity benefits. \n             FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the evidentiary record, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear  the  testimony  of  the  witnesses  and  observe  their  demeanor,  I  hereby  make  the  following \n\nMacon- H107091 \n \n4 \n \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.    The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n         claim. \n \n2.    I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.   The Claimant proved by a preponderance of the evidence that she sustained \ncompensable injuries to her neck and back on October 6, 2020, while leaning  \nagainst a table that collapsed, causing her to fall to the floor landing on her  \nbuttocks.  \n \n          4.        The Claimant proved that all the medical treatment of record was reasonably necessary \n                   treatment for her compensable back and neck injuries.  She also proved her entitlement  \n                   to additional treatment to include the surgery, as proposed by Dr. Rajesh Arakal. and                     \n                   any other pain management as recommended by her treating physicians.  \n                                              \n          5.       All issues not litigated herein are reserved under the Arkansas Workers’ Compensation  \nAct. \n      \nSummary of Evidence \nMs. Margaret A. Macon (referred to herein as the “Claimant”) and Ms. Cara Lee Lamb (a \ncoworker) also testified on behalf of the Claimant.   \n            The record consists of the March 14, 2023, hearing transcript and the following exhibits: \nSpecifically,  Commission’s  Exhibit  1  includes  the  above  referenced  documents; Claimant’s \nExhibit 1 comprises medical records, which includes one hundred and forty-one numbered pages; \nClaimant’s  Exhibit  2  is  the    Abstract  of  Table  of  Contents  consisting  of  nine  pages; the \nRespondent’ Hearing Exhibit Index of  Medicals includes fifty-four pages and it has been marked \nas Respondents’ Exhibit 1; and Respondents’ Hearing Exhibit Index of Non-Medicals, has been \nmarked as Respondents’ Exhibit 2,  consisting  of seventeen  numbered  pages  were  admitted  into \nevidence without objection. \n \n\nMacon- H107091 \n \n5 \n \n                                                           Testimony \nMs. Cara Lee Lamb \n Ms. Lamb holds a bachelor’s degree and master’s degree in education related fields.  She \nis  employed  by  the  Mineral  Springs  School  District.    Ms.  Lamb  works  at  the  junior  and  high \nschools teaching Special Education, Mathematics, and English. According to Ms. Lamb, she has \nworked for the school district for fifteen years.  She confirmed that on occasion she has worked \nwith the Claimant. \n With respect to the Claimant’s October 6, 2020, work-related injury, Ms. Lamb confirmed \nthat she was present when the incident occurred.  Ms. Lamb testified that she was in the classroom \nwith  the  Claimant  when  she  went  to  lean  against  a  table,  and  it  collapsed  and  fell.    Ms.  Lamb \nessentially testified that the Claimant landed on the floor, not so very nicely.  Although Ms. Lamb \ndid not recall the exact time of the injury, she estimated it to be around 11:00 a.m. before lunch.   \n Ms. Lamb explained: \nQ Did she appear to be injured or complain about any problems at that time? \nA Well, when she got up, she said she had just a little bit of a twinge back there, but \nshe wasn’t real concerned about, because she had just fell. \n Under further questions, Ms. Lamb confirmed that she had follow-up conversations with \nthe  Claimant  in  the  days  that  followed.    Ms.  Lamb  testified  that  the  Claimant  told  her  she  was \nhurting  a  little  bit  and  indicated  it  was  due  to  the  fact  that  she  had  fallen.  She  denied  being \nquestioned  by  any  school  district  officials  about  the  incident.    Ms.  Lamb  confirmed  that  the \nClaimant  ended  up  going  to  the  doctor,  within  a  week  or  two  after  her  fall.    According  to  Ms. \nLamb, the Claimant complained to her about her neck and hip. \n\nMacon- H107091 \n \n6 \n \n On cross-examination, Ms. Lamb confirmed that the Claimant complained of a twinge in \nher  lower  back  after  the  incident.    She  stated  that  the  Claimant  complained  of  her  neck  hurting \nright around the time she went to the doctor.  Ms. Lamb confirmed that if the Claimant describes \nher fall as “I fell on my bottom with her legs out in front of me,” she would agree with this account \nof the incident.            \nMargaret A. Macon \n The  Claimant  is  70  years  of  age.    She  has  a  degree  in  Sociology/Social  Work.  She  also \nholds a bachelor’s degree  and  is  certified  in  Pre-K  through  eighth  grade  Math.    The  Claimant \nteaches the 7\nth\n and 8\nth\n grades Mathematics and sometimes Algebra at Mineral Springs School.  She \nhas  worked  for  the  district  for  five  years,  since  2018.    The  Claimant  previously  worked  for  the \nAshdown School District for  eleven years.  She  explained that she  first taught in Oklahoma for \ntwenty-eight years and was over the Math Department before retiring.   \nRegarding the Claimant’s injury, she testified that after teaching a lesson, she was at the \nback of the classroom, reviewing the lesson trying to determine if the kids had any questions or \nneeded her to go back over any of the classwork.  According to the Claimant, she leaned back on \nthe table to prop on it, but she did not realize the table had adjustable legs.  There was a misplaced \nscrew  out  of  the  table  and it  collapsed,  causing  her  to  fall  straight  down  on  her  bottom.    The \nClaimant confirmed that Ms. Lamb, the Special Ed teacher, was in the classroom when she fell.  \nAccording  to  the  Claimant,  they  were  both  teaching  classes  to  try  to  mainstream  some  of  the \nstudents back into regular classrooms. \nThe Claimant explained: \nQ And how would you describe the fall itself? \n\nMacon- H107091 \n \n7 \n \nA Well, then I fell, having a classroom full of students, it startled..... Especially the \ngirls, they screamed, and some of them got up to try to ...... I said, “No,” I can get up naturally,” \nso I tried to get up quickly because they were in the room.  I got up and I felt a little something, \nbut I did not make a big deal out of it.  I just brushed it off to the fact that I had just fallen, you \nknow, pretty abruptly.  \nQ When you say you felt a little something, where did you feel it at? \nA It was kind of in my back, lower back, and I just thought, well, you know I just fell. \nThe  Claimant  confirmed  that  she  did  not  need  immediate  medical  attention  at  that  time.  \nShe completed the workday.  They had two more workdays after the Claimant’s fall.  In the two \ndays  that  followed,  the  Claimant  explained  that  her  symptoms  changed  and  got  progressively \nworse.  The Claimant testified that she was unable to turn over in bed.  She ended up having to \nsleep in a recliner because she could not lay flat.  \nShe  finally  told  the  high  school  secretary,  Ms.  Judy  Hart,  that  she  had  fallen  and  was \nleaving to go to the doctor.  Ms. Hart informed the Claimant that she should report her injury to \nMs. Marla Williams, the person who does their workers’ compensation insurance.  This occurred \non  October 9.  Following her doctor’s appointment, the Claimant reported her injury to Ms. \nWilliams.  She told the Claimant she should have reported the injury on the day it happened. \nThe  Claimant  testified  that  she  sought  medical  treatment  from  the  emergency  facility  at \nHealthCare Express instead of her primary care physician, Dr. Dean Bowman, because his clinic \nhad closed for the day.  According to the Claimant, she sees his nurse practitioner, Ellen Jones.  \nWhen the Claimant went to Healthcare Express, she complained about her hip and back.  \nThey did x-rays to make sure she did not have any broken bones, and prescribed pain medication \nfor  her.  The  Claimant  confirmed  that  she  was  taken  off  work  and  missed  work  a  day  here  and \n\nMacon- H107091 \n \n8 \n \nthere.  However, the Claimant used up her sick leave and some coworkers donated some of their \nsick days to her.    \nThe Claimant sought additional medical treatment for her back from her doctor’s (Dr. \nBowman) nurse practitioner, Ellen Jones.  She confirmed that on October 14, 2020, she saw Nurse \nJones.  At that time, the Claimant complained of hip and back symptoms.  She testified that she \nwas beginning to feel a little something in her neck.  As a result, Jones proposed sending her to \nDr. Erica (the reference appears to be to Dr. Arakal).  She testified that when she was first treated \nat Bowman’s clinic on October 14, they prescribed some pain medications for the muscle spasms \nin her hip and back.  The Claimant agreed that the medication help to relieve her symptoms for a \nwhile, by numbing the pain a little bit.   \nShe testified that she had gone to work, and her arm and neck were hurting “really, really” \nbad, when she got off work.  According to the Claimant, she laid down that night thinking that she \njust needed some rest.  However, later that night she got up and was hurting, to the point that she \nhad to hold her arm up to walk.  As a result, the Claimant’s husband took her to the emergency \nroom at St. Michael’s.  This happened on October 28.  She confirmed that between the time she \nfirst saw the nurse practitioner and her emergency room visit, her symptoms changed in that two-\nweek time limit.  The Claimant testified that she  started feeling something different up towards \nher neck and shoulder and in her arm on the right side.  She slept in the recliner during that period \nof time and ended up getting a neck pillow to prop up her neck.  \nThe Claimant confirmed that she did not have any imaging done at St. Michael’s.  After \nher visit to the ER, they sent the Claimant to Advanced Imaging for St. Michael’s to have the CT \nscan performed the next day.  She confirmed that she had an MRI of her neck and thoracic spine.  \nDr. Bowman discussed the results of the CT and MRI with her.  He referred the Claimant to Dr. \n\nMacon- H107091 \n \n9 \n \nArakal,  a  surgeon,  through  the  Texas  Back  Institute  at  Plano,  Texas.    Per  the  Claimant,  she  is \ngetting medical treatment through her personal health insurance, Health Advantage.           \nShe  confirmed  that  her  first  visit  with  Dr.  Arakal  was  on  December  4,  2020  due  to \ncomplaints of significant symptoms of neck pain.  The Claimant testified that she saw Dr. Arakal \nfor  three  visits.   She  confirmed  that  surgery  was  recommended  but  it  was  postponed  due  to  the  \nCOVID-19 pandemic and because she suffers from diabetes. The Claimant testified that she is a \nType II diabetic.  She confirmed that she last saw Dr. Arakal on July 24, 2021.  Since that time, \nthe Claimant has been self-treating through pain management, which includes the use of several \ntypes of creams and patches to alleviate her pain.  The Claimant confirmed that she continues to \ntreat with Dr. Bowman through Family Medical Clinic for her ongoing symptoms.  She testified \nthat she was referred to Precision Spine Care for pain management by the nurse practitioner, Ellen \nJones.  The Claimant confirmed that she underwent one epidural steroid injection to her neck.  She \ntestified that the injection helped for a little while, but it is wearing off.  However, the Claimant \nwas scheduled to undergo another injection on March 20, 2023, once she receives clearance from \nher endocrinologist because the injections elevate her blood sugar.   \nAs of the date of the hearing, the Claimant continued to work full-time, as a teacher with \nsome  adjustments  to  her  class  schedule.    The  Claimant  confirmed  that  she  planned  to  continue \nworking until of the end of the school year.  Per the Claimant she has turned in her resignation for \nthe upcoming school year. The Claimant testified that she has problems with both sides of neck. \nHowever, she testified that the majority of her pain is on the left side of her neck.  She confirmed \nthat she intends to return to the Dr.Arakal. The Claimant denied any problems with her neck prior \nto her accident in 2020.   \n\nMacon- H107091 \n \n10 \n \n However, the Claimant confirmed that she was struck from behind while driving from work \nin Mineral Springs.  This accident happened in 2016.  According to the Claimant, she was struck \nfrom behind by an 18-wheeler.  She admitted that she complained of neck  and back discomfort \nafter  her  MVA.    As  a  result,  they  did  an  MRI.    She  underwent  physical  therapy/PT  for  her \nsymptoms.    However,  the  Claimant  denied  seeing  a  specialist  for  her  symptoms.    She  further \ndenied having the same complaints or problems in 2016 of pain radiating down her arm.   \nThe  Claimant  confirmed  that  she  was  involved  in  second  car  accident  in  2017.    She \ndescribed her accident as a fender bender.  According to the Claimant, a young lady hit them on \nthe  left  side  of  their  vehicle.    For  her  2017  accident,  the  Claimant  treated  with  a  chiropractor  \nmostly  for  back  pain  because  when  the  lady  hit,  she  was  thrown  to  the  front.  She  also  denied \nseeing  or  being  referred  to  a  specialist  for  surgery  or  anything  of  that  nature.    The  Claimant \nessentially confirmed that her neck and back issues from those two accidents resolved, and she did \nnot have any problems until her work-related accident in 2020.  Following her MVAs, the Claimant \ntestified she was pain-free for two years before her 2020 workplace accident.   \nShe testified that she would like to continue to purse pain management through Precision \nSpine Care and put surgery off as long as possible.  The Claimant testified that she had planned to \nwork another year because her grandson is in college.  However, she explained that her commute \nto work aggravates her neck and shoulder.   \nOn cross-examination, the Claimant confirmed that she settled  the 2016 car accident for \n$32,000.  She confirmed that her second MVA occurred on May 30, 2017, which was a “fender \nbender.” \nRegarding  her  accidental  work  injury,  the  Claimant  confirmed  that  she  testified  that  she \nfell on her bottom, with her legs out in front of her.  She explained that she felt a little something \n\nMacon- H107091 \n \n11 \n \nbut thought it was just the initial shock of falling.  The Claimant agreed that she testified during \nher deposition that she felt a little bit of stiffness in her back and right hip that evening.  She further \ntestified that she noticed symptoms in her neck and shoulder about two weeks after her fall because \nit gradually got worse.  The Claimant admitted that when she fell, she did not hit her neck or left \nshoulder.  She confirmed that she uses over-the-counter medications for her symptoms. \nThe Claimant testified that if she retires from Mineral Springs this upcoming school year \nfor  2023-2024,  this  will  be  her  third  retirement.    She  confirmed  that  no  doctor  has  placed  any \nrestrictions on her as of late.   \nThere is a record of the Claimant having treated with Ellen Jones on March 23, 2021 in Dr. \nBowman’s office.  Per  this  record,  she  complained  of  pain  in  her  left  shoulder  and  arm.  At  that \ntime, the Claimant described her pain as being constant and sharp.  The onset was several months \nago and started having pain on the left side when she woke up Sunday morning.  She confirmed \nthat  she  recalled  the  incident.    The  Claimant  admitted  having  stated  that  she  thought  she  had  a \ncrick in her neck and there was no obvious injury or event.   \nNext, the Claimant was shown a copy of an AFLAC form\n1\n, which she filled out on June 7, \n2021.  She verified her handwriting on the form.  The Claimant stated on this form that there was \nan injury on October 29, 2020.   She confirmed that she completed a similar form on November 5, \n2020, a Form AR-N.  The Claimant agreed the form was not completed until July 21, 2021.  She \nagreed that at that point, she had decided to make a claim for workers’ compensation benefits.  \nOn redirect examination, the Claimant testified: \n \n1\n The Claimant was shown a copy of Respondents’ Exhibit 2, which includes various forms, such as her \napplication for AFLAC and forms relating to her injury.  \n\nMacon- H107091 \n \n12 \n \nQ Just briefly.  As you recall, when you first developed arm pain or symptoms out \nof your neck, do you recall if it was one arm versus the other?    \nA The first symptoms, it was my right side, because when I fell, I felt the ..... It was \nin my back, and as time progressed, it was in my right side, and when I went to the emergency, \nroom, that’s when I was holding my left hand. \nQ Looking at the Family Associates Medical records, they note on November 5\nth\n that \nyou reported location on the right side that radiates to the right shoulder and the right arm, so at \nthe time, were you having pain in both arms? \nA Yes.                                    \nThe Claimant explained that although when she went to the emergency room, she had pain \nrunning down her left side down her arm, currently most of her pain is in her right arm.     \n                                     Medical Evidence \nA review  of  the  medical  evidence  shows  that  the  Claimant  previously  sought  medical \ntreatment at Christus St. Michael Health System on October 6, 2016.  At that time, the Claimant \ncomplained  of  neck  and  abdomen  pain  due  to  a  motor  vehicle  accident/MVA  involving  an  18-\nwheeler.  She was discharged home that same day and was noted to have “minor injuries” from \nthe  MVA.    However,  a  CT  of  her  cervical  spine  was  performed  with  an  impression  of: \n“Straightened cervical lordosis which may be positional or secondary muscle spasm.  Significant \ndisc bulge or herniation on the right at the C4-C5 interspace.  No acute fracture.” \n It  appears  that  the  Claimant  sought  treatment  from  the  Family  Medical  Associates  on \nOctober 7, 2016.  The Claimant presented to Dr. Vernon Bowman with complaints of neck pain \nthat  radiated  to  the  right  shoulder  and  right  arm  after  being  rear-ended by a “big truck.”  Dr. \n\nMacon- H107091 \n \n13 \n \nBowman  assessed  the  Claimant  with  neck  pain  and  ordered  medications  and  discussed  the \npossibility of physical therapy.     \n An  MRI  was  performed of the Claimant’s cervical spine on  October  20,  2016,  with  an \nimpression: “1. Multilevel disc herniations, C4-5 and C5-6 levels. 2. Straightening of the lordotic \ncurvature.  Clinically correlate for under muscular spasm.”   \n The  Claimant  underwent  physical  therapy  for  her  shoulder  and  neck  pain  at  HealthCare \nExpress beginning on October 27, 2016, through November 14, 2016. \n On November 14, 2016, the Claimant was evaluated for neck pain by Dr. Bowman during \nan office visit.  The Claimant reported that she had been going to the physical therapy and it was \nhelping.    Her  pain  medication  was  causing  vomiting  and  dizziness.  His  assessment was “neck \npain.”  Dr. Bowman discussed other pain medication options with the Claimant and continued her \nphysical therapy, which she underwent. \n The Claimant completed her physical therapy sessions on January 12, 2017, at HealthCare \nExpress.  She returned for a follow-up visit with Dr. Bowman on January 26, 2017, for continued \nneck pain. \n On June 2, 2017, the Claimant presented to Dr. Bowman for a chief complaint of pain of \nthe neck since May 30, 2017.  The Claimant reported that it was the result of an injury that occurred \non  May  30,  2017,  which  was  a  sudden  onset.    Per  these  clinic  notes,  the  Claimant  had  similar \nproblems in the past.  Her current neck pain was due to a motor vehicle accident. She was in the \npassenger seat when another vehicle rear-ended them at a low force collision.  The vehicle was \ntraveling at less than 10 MPH.       \n The Claimant presented to HealthCare Express on June 13, 2017, for follow-up of her neck \npain.  At that time, she was discharged from care by ShaRhonda Gamble, FNP-C. \n\nMacon- H107091 \n \n14 \n \n On  June  26,  2018,  the  Claimant  presented  with  low  back  pain,  to  the  Family  Medical \nAssociates under the care of Calyse Roy, APRN (supervisor, Dr. Vernon Bowman).  The Claimant \nreported that her current episode of pain started three days ago.  However, the Claimant did not \nrecall  a  particular  precipitating  event  or  injury  for  her  symptoms.    Her  symptoms  were  most \nprominent in the lower spine and radiated to the thighs and characterized as constant and aching \nin nature. She also complained of persistent stiffness.  Her level of pain between one and ten was \nat a seven.    The Claimant was assessed with low back pain, for which they performed injections \nof Decadron and Toradol. \n On October 9, 2020, the Claimant sought medical treatment from HealthCare Express for \na primary complaint of back pain.  Robin Hawthorne, FNP, evaluated the Claimant.  At that time, \nshe reported an event of having fallen two weeks ago onto her buttocks.  The Claimant stated that \nshe had increased tenderness and aches going up her back.  On physical examination the Claimant \nwas  noted  to  have  lumbar  muscles  tender  to  palpation.    At  that  time,  her  assessment  was \n“unspecified injury of lower back,” for which she  was  prescribed  oral  medication  containing \nAcetaminophen-Codeine.  Imagining ordered included X-rays 2-3 Views of the L-spine, with an \nimpression of “Normal lumbar spine.” \n The  Claimant  was re-evaluated  again  at  Family  Medical  Associates/Dr.  Bowman,  on \nOctober  14,  2020,  due  to  a  chief  complaint  of  right  hip  pain.  At  that time,  her  pain  was  rather \ndiffuse in location, it radiated to the low back flank.  The Claimant described her pain as being \nmoderate in intensity, constant and sharp.  The precipitating event for her pain was a fall two weeks \nago.  The Claimant stated that she had not found anything to relieve the pain.  Her assessment was \n“pain in the right hip and low back pain,” for which received in-house  steroid  injection,  and  a \n\nMacon- H107091 \n \n15 \n \nprescription regimen that included a methocarbamol to be taken three times a day, “as needed for \nmuscle spasms.”  \n On October 20, 2020, the Claimant returned to Dr. Bowman’s office for complaints of \ncervicalgia.  The location of her discomfort was on the right side.  It radiated to the right shoulder \nand  right  arm.    The  Claimant  characterized  her  pain  as  being  severe,  constant,  and  sharp.  The \nprecipitating event seemed to have been a fall around the beginning of the month.  The Claimant \nhas continued to have pain in her neck and right arm. Per these clinic notes, the Claimant went to \nER for pain Tuesday. \n A CT of the Claimant’s cervical spine was performed for comparison the October 6, 2016, \nimaging.  This second CT was performed on October 29, 2020, which was read by Dr. Samuel T. \nGatzert, with an impression of: \n1.  Multilevel cervical spondylosis most notable for a prominent right paracentral focal disc \nprotrusion resulting in compressing mass effect upon the right lateral hemicord and severe \nfocal thecal sac stenosis at C4-5.  Additional multilevel moderate thecal sac stenoses with \ncentral and slight right paracentral components C5-6 and C6-7.  No identified compressive \nmyelomalacia. \n \n 2.  Severe right foraminal stenosis at C4-5.0 \n On  that  same  day,  an  MRI  of  the  Claimant’s  thoracic  was  performed  and  Dr.  D.S. \nCampanni’s impression was: “Mid- multilevel degenerative disease without canal stenosis.  Mild \nright and moderate left foraminal compromise at T10-T11.”   \n The Claimant had a follow-up evaluation for her continued complaints of cervicalgia on \nNovember 5, 2020.  At this time, it was noted that the Claimant was unable to return to work due \nto her pain.  She had been sleeping in a recliner because was unable to lay flat.  Dawn Lewis, LPN, \nevaluated the Claimant under the care of Dr. Douglas Black.  According to this medical note, the \nClaimant was determined to have “multilevel disc herniations at C4-5 andC5-6.”  She also was \n\nMacon- H107091 \n \n16 \n \nnoted to have a partial rotator cuff tear.”  On physical examination, the Claimant had pain with \nrange  of  motion  in  the  neck  forward  flexion,  extension  and  lateral  flexion.  Her  assessment  was \n“M54.2 Cervicalgia,” for which was given a medication regimen that included a muscle relaxer \nand pain medication.  At that time, the Claimant was instructed not to return to work due to pain.   \nThey gave her educational handouts on “cervical spondylosis.”   \n On November 24, 2020, the Claimant returned to Family Medical Associates for a follow-\nup evaluation of continued symptoms of cervicalgia.  The Claimant’s location of discomfort and \ncharacterization of her pain continued essentially unchanged.  Although the Claimant reported she \nfelt better, she still had limited ROM, and continued to sleep in a recliner.  She was requesting to \ngo  back  to  work.  The  Claimant  was  allowed  to  return  to  work  and  was  instructed  to  return  for  \nfollow-up and re-evaluation as needed.       \nThe Claimant sought treatment for her neck symptoms from the Texas Back Institute  on \nDecember 4, 2020, on referral by Dr. Bowman.  She was evaluated by Dr. Rajesh G. Arakal.  At \nthat time, the Claimant reported that she hurt her neck with a fall.  Per these medical notations, the \nClaimant’s imaging studies which were concerning for a cervical cord compression. As a result, \nshe wanted to obtain further discussion and opinions in this regard.  Since the Claimant’s trauma, \nthere had  been  ongoing  problems  with  some  acute  loss  of  balance,  dysfunction,  and  feeling  of \nheaviness.  The Claimant reported ongoing acute loss of function in her right arm for a period of \ntime and difficulty with mobilization.  She further reported having gone to the emergency  room \nand a workup revealed cervical cord compression at C4-5, 5-6 and 6-7.   Dr. Arakal noted that on \nphysical examination, the Claimant was reporting dysfunction in her balance and looking up was \ndifficult  for  her.    The  MRI  imaging  was  reviewed,  which  showed  evidence  of  spinal  cord \ncompression  secondary  to  large  cervical  disc  herniations  at  C4-5,  C5-6,  and  6-7  with  cord \n\nMacon- H107091 \n \n17 \n \ndeviation.   X-rays showed cervical spondylitis changes.  Dr. Arakal assessed the Claimant with \n“cervical spinal cord compression with myelopathy, with significant compression.  His stated plan \nof treatment included surgery given the level of compression and her symptoms of myelopathy.  \nThe Claimant also had difficulty with cervical extension.  There was some increased pain in the \ncervical spine with cervical extension, but the Claimant had not lost upper extremity function.  She \nwas  starting  to  have  some  mild  changes  her  in  urinary  function  that  was  recent.  The  Claimant \nwanted to hold off on immediate surgery until she could take time off to recover.  Dr. Arakal stated \nthat  given  the  level  of  function,  they  could  do  observation  and  clinical  checkup,  but there  was \nconcern because of the level of compression  that she will need a decompressive procedure. His \nplan included an ACDF at C4-5, C5-6, and 6-7.  Dr. Arakal noted that the Claimant is diabetic.  \nTherefore, there is potential risk of pseudarthrosis, but he believed it is reasonable to try to move \nforward given the pathology of the ventral.  Dr. Arakal ordered a CT scan to look for the level of \nbony compression. \nOn December 22, 2020, the Claimant underwent a CT scan of the cervical spine with an \nimpression of: “Multilevel degenerative disease.”  \nThe  Claimant  returned  to  the  Texas  Back  Institute  for  evaluation  of  her  symptoms  of \nprogressive arm complaints on January 15, 2021.  At that time, the Claimant stated that she was \nhaving increasing difficulty with left arm pain and driving.  On physical examination, Dr. Arkal \nnoted that the Claimant had a positive Hoffman’s signs and the Claimant stated she sensed she was \ngetting  worse.  Dr.  Arakal  stated  that  the  CT  scan  showed  disc  degenerative  changes  but  in \ncomparison to the MRI the large volume compression lesions were not  calcified at C4-5, C5-6, \nand  6-7.    He  assessed  the  Claimant  with  “Cord  compression  with  symptoms  of  cervical \nmyelopathy, positive Hoffman’s  with  cord  deviation  and  compression  at  C4-5,  C5-6,  and  6-7.”  \n\nMacon- H107091 \n \n18 \n \nDr. Arakal opined: She does not have any major ossification of the posterior longitudinal ligament \nso  the  ventral  compression  should  be  addressed  and  can  be  addressed  with  the  area  of  greatest \nventral compression which would be an anterior approach.      \nThe Claimant followed up at Family Medical Associates on March 23, 2021.  She presented \ndue  to  feet/ankle  swelling  and  upper  back  pain  and  neck  pain.  Her  current  episode  started  two \nweeks ago, with no precipitating event or injury.  She was noted to have a history of cervicalgia.  \nThe Claimant reported that she started having pain in her left arm when she woke up one Sunday \nmorning.    At  that  time,  the  Claimant  believed  she  had  a  crick  in  her  neck.  Her  assessment \ncontinued to be cervicalgia and she was directed to follow up with Dr. Arakal. \nOn July 24, 2021, the Claimant was seen at the Texas Back Institute.  Dr. Arakal authored \nprogress notes that same day.  He reviewed the Claimant’s medications with her.  The Claimant \nmoved her surgery date due to family concerns of her brother being ill.  Dr. Arakal assessment was \n“Cervical spondylosis with myelopathy.” \nThe Claimant was evaluated at the Precision Spine Care for back pain that was worsening, \non August 2, 2022, under the care of Dr. Harold Fite.  She stated that her symptoms were gradual \nwith  injury.    The  Claimant  stated  she  had  been  experiencing  these  symptoms  greater  than  two \nyears.  She  reported  having  been  evaluated  by  a  spine  surgeon  in  Plano  who  discussed  the \npossibility of cervical fusion.  The Claimant stated that she had chosen to forego surgery at that \ntime due to concerns of risk and need for further surgery in the future. At that time, the Claimant \nreported  axial  neck  pain  and  pain  that  radiated  into  the  forearm  and  hand.    She  denied  focal \nweakness,  or  bowel  or  bladder  changes.  Per  this  report,  the  Claimant  had  limited  relief  with \nconservative  measures  including  oral  analgesics,  rest,  heat,  ice,  and  physical  therapy.    Dr.  Fite \nopined:  “She has  a  cervical  MRI  showing  multilevel  degenerative  disc  disease  and  facet \n\nMacon- H107091 \n \n19 \n \narthropathy with lateral recess and foraminal stenosis at C4-5 and C5-6.  She has severe stenosis \nat C4-5 and moderate stenosis at C5-6 and C6-7.”  The Claimant reported moderate difficulty with \nwalking for more than five minutes.  Dr. Fite’s assessment was “Radiculopathy, cervical region \n(M54.12), for which he tentatively planned to perform a cervical epidural steroid injection at C6-\n7 with follow up in two weeks.  The Claimant wanted more time to discuss with her family before \nscheduling. \nOn  January  11,  2023,  the  Claimant  followed-up  at  Dr.  Leslie  Howland  FNP,  at  the \nPrecision  Spine  Care  for  chronic  pain  and  back  pain.  She  presented  with  a  report  of  increased \npain.  The Claimant wanted to move forward with the CESI. \nDr. Fite performed a Cervical Interlaminar Epidural Steroid Injection at C6-7, on February \n6, 2023.  Findings included “cervical interlaminar level treated at midline C6-7.”   \n                     Adjudication \nA.   Compensability      \n            In Ark. Code Ann. §11-9-102(4)(A)(i) (Repl. 2012), “compensable injury” means:  \n(i)  An accidental injury causing internal or external physical harm to the body ... \narising out of and in the course of employment and which requires medical services \nor results in disability or death.  An injury is “accidental” only if it is caused by a \nspecific incident and is identifiable by time and place of occurrence[.]    \n  \n  A  compensable  injury  must  be  established  by  medical  evidence  supported  by  objective \nfindings.  Ark. Code Ann. §11-9-102(4)(D).  “Objective findings” are those findings which cannot \ncome under the voluntary control of the patient.  Ark. Code Ann.§11-9-102 (16)(A)(i).    \n The employee has the burden of proving by a preponderance of evidence that she sustained \na compensable injury.  Ark. Code Ann. §11-9102(4)(E)(i).  Preponderance of the evidence means \nthe evidence having greater weight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil \n\nMacon- H107091 \n \n20 \n \nCo., 81 Ark. App. 269, 101 S.W.3d 252 (2003), citing Smith v. Magnet Cove Barium Corp., 212 \nArk. 491, 206 S.W.2d 442 (1947).       \n After  reviewing  the  evidence  in  this  case  impartially,  without  giving  the  benefit  of  the \ndoubt  to  either  party,  I  find  that  the  Claimant  has  proven  by  a  preponderance  of  the  credible \nevidence that she sustained compensable injuries to her back and neck during her work- related \nfall on October 6, 2020, when a table she was leaning against collapsed causing her to fall hard \nonto  the  floor  on  her  buttocks.   The  Claimant’s  description  and  account  of  the  incident  is \ncorroborated by Ms. Lambs and the contemporaneous documentary medical records of evidence.  \nIn this regard, I find both the Claimant and Ms. Lamb to be extremely credible witnesses.       \n The Claimant reported her accidental injury to management on October 9, three days after \nher  fall.  Her  testimony  demonstrates  that  she  put  off  seeking  treatment  thinking  her  condition \nwould improve, but it worsened.  Three days after her fall, on October 9, 2020, the Claimant sought \nmedical  treatment  from  her  primary  care  physician,  Dr.  Bowman.  Initially,  the  Claimant \ncomplained of back pain.  She was treated with a prescription of muscle relaxers for lumbar muscle \nspasms by Dr. Bowman.   These are objective medical findings of an injury to the Claimant’s back. \nAlthough the Claimant had been involved in two car accidents (one was very minor), she had not \ncomplained of back symptomology in almost three years.  Nor had the Claimant missed any work \nor been evaluated by any medical doctor for complaints of the back.  Based on  the lack of any \nmedically  documented  complaints  of  any  recent  back  problems,  the  credible  testimony  of  the \nClaimant and Ms. Lamb surrounding the circumstances and mechanism of the Claimant’s work-\nrelated  fall,  I find  that  the  Claimant  has  proven  by  a  preponderance  of  the  evidence  a  causal \nconnection between her workplace fall of October 6, 2020, and her current  back condition.  \n\nMacon- H107091 \n \n21 \n \nRegarding the Claimant’s spine condition, it is well established in workers’ compensation \nlaw that  an aggravation  of a preexisting condition is compensable.   The  medical records reflect \nthat following the Claimant’s 2016 motor vehicle accident, she under diagnostic tests that revealed \nshe  had  disc  herniations  at  C-5  and  C5-6.    However,  the  MRI  of  the  Claimant’s  cervical  spine \ndemonstrates that she sustained a recent/new trauma injury to neck involving a different disc area \nat C6-7.  The degree of stenosis is much more significant in severity in comparison to previous \nimaging.    Dr.  Arakal  characterizes  it  as  cord  compression  at  all  three  levels,  C4-5, C5-6,  C-7.  \nThese are objective medical findings of an accidental injury to the Claimant’s cervical spine on \nOctober 6.     This finding is particularly persuasive considering the Claimant was able to perform \nher job duties as a teacher before her work incident of October 6, and she had not complained to a \nmedical professional about any complaints of the neck since January 26, 2017, almost three years \nbefore her work incident. Her testimony concerning the gradual progression of her neck and arm \nsymptoms  is  corroborated  by  the  medical  records.    Moreover,  there  no  evidence  absolutely \nwhatsoever demonstrating that the Claimant injured her neck during some other event or injury in \nthe interim.  Likewise, the mechanism of the Claimant’s fall is consistent with a neck injury, as \ndescribed by both Ms. Lamb’s and the Claimant’s account of the incident.  Both credibly testified \nthat the Claimant’s suddenly fell to floor on her buttocks.  \nI  find  that  the  Claimant  has  proven  by  a  preponderance  of  the  evidence  all  of  the \nrequirements  necessary  for  establishing  that  she  sustained  a  compensable  injury  to  her  neck  on \nOctober 6, 2020.    \nB. Medical Treatment \nThe employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \n\nMacon- H107091 \n \n22 \n \nAnn.  §11-9-508(a)  (Repl.  2012).      The  Claimant  must  meet  her  burden  of  proving  by  a \npreponderance  of  the  evidence  that  medical  treatment  of  record  is  reasonably  necessary  in \nconnection with the injury received by the employee.  Stone v. Dollar General Stores, 91 Ark. \nApp. 260, 209 S.W.3d 445 (2002).  Our courts have quantified the preponderance of the evidence \nto mean the evidence having greater weight or convincing force.  Metropolitan Nat’l Bank v. La \nSher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nHere, the Claimant sustained compensable injuries to her neck and back when a table she \nwas leaning on collapsed, causing her to fall on her buttocks, on October 6, 2020.  The Claimant \nunderwent  conservative  care  with  her  PCP,  Dr.  Bowman,  at  the  Texas  Back  Institute,  and \nPrecision Spine for her neck and back injuries.  I find all of the treatment of record is reasonably \nnecessary treatment for diagnosing and treating the Claimant’s back and neck injuries.  Despite \nthis  conservative  treatment  including  steroid  injections,  the  Claimant  has  continued  with \ncomplaints  of  pain  and  discomfort,  particularly  in  her  neck.    The  Claimant  was  diagnosed  as \nhaving significant herniations, by Dr. Arakal, a spine specialist, who has recommended surgical \nintervention.  Considering the Claimant failed conservative treatment modalities, I am persuaded \nthat  surgical  intervention  is  warranted  and  recommended  follow-up  management  treatment \ndeemed appropriate by her treating physician. \nI  realize  that  the  Claimant  is  reluctant  to  undergo  surgery  at  this  time  and  wishes  to \ncontinue with conservative treatment modalities.  However, given the nature and severity of the \nrisks involved with neck surgery, I find this course of action of putting the surgery off for as long \nas possible is quite reasonable and most prudent.   \n \n\nMacon- H107091 \n \n23 \n \n                                                  AWARD \n The Respondents are ordered and directed to pay benefits in accordance with the \nfindings of fact and conclusions of law set forth above.  All other issues are reserved under \nthe Arkansas Workers’ Compensation Act.  \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          HON. CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE","textLength":44457,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.:H107091 MARGARET A. MACON, EMPLOYEE CLAIMANT MINERAL SPRINGS, SARATOGA SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, WCT RESPONDENT OPINION FILED JUNE 12, 2023 Hearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Texa...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["neck","back","hip","herniated","shoulder","thoracic","cervical","fracture"],"fetchedAt":"2026-05-19T23:06:17.264Z"},{"id":"alj-H208119-2023-06-12","awccNumber":"H208119","decisionDate":"2023-06-12","decisionYear":2023,"opinionType":"alj","claimantName":"Austin Rushing","employerName":"Williams Mechanical Srvs Inc","title":"RUSHING VS. WILLIAMS MECHANICAL SRVS INC. AWCC# H208119 JUNE 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/RUSHING_AUSTIN_H208119_06122023.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RUSHING_AUSTIN_H208119_06122023.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H208119 \n \nAUSTIN RUSHING, EMPLOYEE  CLAIMANT \n \nWILLIAMS MECHANICAL SRVS INC., \nEMPLOYER                                                                                                RESPONDENT \n \nNATIONAL AMERICAN INSURANCE CO. \nINSURANCE CARRIER                                                                            RESPONDENT \n \nSEDGWICK CLAIMS CLAIMS MANAGEMENT SERVICES,  \nTHIRD PARTY ADMINISTRATOR                                                           RESPONDENT  \n \n \nOPINION FILED JUNE 12, 2023 \n \nHearing before Administrative Law Judge Steven Porch on June 9, 2023 in Little Rock, \nPulaski County, Arkansas. \n \nClaimant, pro se. \n \nThe Respondents were represented by Mr. Jason M. Ryburn, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on  June 9, 2023, in Little Rock, \nArkansas.  Claimant, who is pro se, did not appear for the hearing.  Respondents were \nrepresented  at  the  hearing  by  Mr.  Jason  M.  Ryburn,  Attorney  at  Law,  of  Little  Rock, \nArkansas. In addition to Respondent’s argument, the record consists of the Commission’s \nfile, which has been incorporated herein in its entirety by reference, including all exhibits \nproperly admitted before the Commission. \n The evidence reflects that Claimant’s injury occurred on August 19, 2021, where \nhe purportedly injured his head. This incident allegedly occurred when another worker left \na hammer on top of a ladder that fell striking Claimant in the head causing a laceration. \n\nRUSHING H208119 \n \n \n2 \nA hearing was held on June 9, 2023, in Little Rock, Arkansas, on the Motion to Dismiss. \nAnd as previously stated, the Claimant did not appear for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \n\nRUSHING H208119 \n \n \n3 \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven  reasonable  notice,  at  the  addresses  provided  by  each  party,  for  the Motion  to \nDismiss hearing under Rule 13. I further find that Claimant has abridged this rule. Thus I \nfind Respondent’s Motion to Dismiss should be granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4748,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208119 AUSTIN RUSHING, EMPLOYEE CLAIMANT WILLIAMS MECHANICAL SRVS INC., EMPLOYER RESPONDENT NATIONAL AMERICAN INSURANCE CO. INSURANCE CARRIER RESPONDENT SEDGWICK CLAIMS CLAIMS MANAGEMENT SERVICES, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 12,...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:06:19.326Z"},{"id":"alj-H206637-2023-06-12","awccNumber":"H206637","decisionDate":"2023-06-12","decisionYear":2023,"opinionType":"alj","claimantName":"Robin Ussery","employerName":"My First School","title":"USSERY VS. MY FIRST SCHOOL AWCC# H206637 JUNE 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Ussery_Robin_H206637_20230612.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Ussery_Robin_H206637_20230612.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H206637 \n \n \nROBIN USSERY, EMPLOYEE CLAIMANT \n \nMY FIRST SCHOOL, \nEMPLOYER RESPONDENT \n \nNAT’L SPECIALTY INS., \nCARRIER RESPONDENT \n \nSEDGWICK CLAIMS MGMT. SVCS., \nTHIRD PARTY ADMINISTRATOR RESPONDENT \n \n \n \nOPINION FILED JUNE 12, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  June  8,  2023,  in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. James W. Stanley, Jr., Attorney at Law, Little Rock, \nArkansas (neither appearing). \n \nRespondents represented by Ms. Lauren Scroggins, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on  June 8, 2023, in Little \nRock, Arkansas.  No testimony was taken in the case.  Claimant failed to appear \nat the hearing; and her counsel waived his appearance.  .  The record consists of \nRespondents’  Exhibit  1,  the  Motion  to  Dismiss,  consisting  of  two  pages;  and \nRespondents’  Exhibit  2,  pleadings,  forms  and  correspondence  related  to  the \nclaim, consisting of eight pages.  In addition, without objection, the Commission’s \nfile has been incorporated herein in its entirety by reference. \n\nUSSERY – H206637 \n \n2 \n \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on September  15,  2022, \nClaimant  purportedly  injured her toes  at  work  on  August  19, 2022.    According  to \nthe Form AR-2 that was filed on September 15, 2022, Respondents accepted the \nclaim and paid medical and indemnity benefits pursuant thereto. \n On  September  22, 2022,  Claimant  filed  a  Form  AR-C,  requesting  initial \nbenefits  and  alleging  that  she  injured  her  left  foot  and  great  toe on  August  18, \n2022,  when  they  were  struck  by  the  door  of  a  metal  cooler  at  her  place  of \nemployment.    She  added  that  she  is  diabetic.    Accompanying  this filing  was  a \nhearing request, signed by Claimant’s counsel, on the issue of her entitlement to \ntemporary  total  disability  benefits.    In  response,  Crystal  Cox  with  the  respondent \nthird-party administrator emailed the Commission on September 26, 2022, stating \nthat their position had not changed. \n On  September  12,  2022,  Claimant’s  counsel  wrote  the  Commission, \nrequesting  a one-time  change  of  physician.    Notes  from  Susan  Washington  with \nthe Medical Cost Containment Division indicate that the request was not ultimately \nprocessed  because:    (1)  on  September  30, 2022,  she  was  informed  by  Cox  that \nClaimant  was  no  longer  represented;  and  (2)  as  of  October  13,  2022,  she  had \nbeen  unable  to  reach  Claimant  or  her  attorney  to  see  if  the  change  of physician \nwas still desired. \n\nUSSERY – H206637 \n \n3 \n \n \n Respondents’ counsel entered her appearance before the Commission on \nOctober  11,  2022.    On  October  25,  2022,  Claimant’s  counsel  wrote  her,  stating \nthat  his  client “no  longer  wishes  to  pursue  her  workers’  compensation  claim  as \nshe has returned to work.” \n The  record  reflects  that  no  further  activity  took  place  on  this  claim  until \nMarch 22, 2023, when  Respondents  filed the instant Motion to Dismiss and brief \nin support thereof.  Therein, they alleged that dismissal of the claim was called for \nunder AWCC R. 099.13 and Ark. Code Ann. § 11-9-702 because Claimant “ha[d] \ntaken  no  further  action  to  prosecute  this  claim” since her attorney’s October 25, \n2022,  letter.    The  file  was  assigned  to  me  on  March  23,  2023;  and  on  April  3, \n2023,  I  wrote  Claimant  and  her  counsel,  requesting  a  response  to  the  motion \nwithin  20  days.    The  letter  was  sent  to  Claimant  by  both  certified  and  first-class \nmail, and to her attorney by first-class mail.  The United States Postal Service was \nunable  to  verify  whether  Claimant  claimed  the  certified  letter;  but  the  first-class \nletters to her and her attorney were not returned.  Regardless, no response from \nforthcoming from either of them by the deadline. \n On May 9, 2023, I scheduled a hearing on the Motion to Dismiss for  June \n8, 2023, at 11:30 a.m. at the Commission in Little Rock.  The hearing notice was \nsent  not  only  to  the  attorneys  of  record,  but  to  Claimant.    She  signed  for  the \ncertified mail on May 11, 2023; and the first-class mail was not returned. \n\nUSSERY – H206637 \n \n4 \n \n \n On May 11, 2023, Claimant’s counsel wrote the Commission, stating: \nI  am  in  receipt  of  the  Notice  of  Hearing  on  the  Motion  to  Dismiss.  \nWe  are  not  opposed  to  the  granting  of  the  Motion  to  Dismiss.  \nTherefore,  neither  myself  nor  the  claimant,  Robin  Ussery,  will  be \npresent at the hearing. \n \n(Emphasis  in  original)    The  hearing  on  the  Motion  to  Dismiss  proceeded as \nscheduled  on June  8,  2023.  Both  Claimant  and  her  counsel  waived  their \nappearance; but, again, counsel has indicated no objection to a dismissal of this \nclaim.    Respondents  appeared  through  counsel  and  argued  for  dismissal  under \nthe aforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission  has  jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \n\nUSSERY – H206637 \n \n5 \n \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl.  2012) must prove their entitlement to the relief requested–dismissal of the \nclaim–by  a  preponderance  of  the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant  has  failed  to  prosecute  the  claim  because  she  has  taken  no  further \naction  in  pursuit  of it—including  appearing  at  the  June  8,  2023,  hearing  on  the \nMotion to Dismiss—since making her change-of-physician request on September \n12,  2022.    Thus,  the  evidence  preponderates  that  dismissal  is  warranted  under \nRule 13.  Because of this finding, it is unnecessary to address the applicability of \nArk. Code Ann. § 11-9-702 (Repl. 2012). \n\nUSSERY – H206637 \n \n6 \n \n \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Professional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).    Respondents  at  the  hearing  asked  for a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of the claim should be and hereby is entered without prejudice. \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":8823,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H206637 ROBIN USSERY, EMPLOYEE CLAIMANT MY FIRST SCHOOL, EMPLOYER RESPONDENT NAT’L SPECIALTY INS., CARRIER RESPONDENT SEDGWICK CLAIMS MGMT. SVCS., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JUNE 12, 2023 Hearing before Administrative Law Judge O. Milt...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:06:21.384Z"},{"id":"full_commission-H203628-2023-06-09","awccNumber":"H203628","decisionDate":"2023-06-09","decisionYear":2023,"opinionType":"full_commission","claimantName":"William Holmes","employerName":"Conagra Foods, Inc","title":"HOLMES VS. CONAGRA FOODS, INC. AWCC# H203628 JUNE 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Holmes_William_H203628_20230609.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Holmes_William_H203628_20230609.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H203628 \n \nWILLIAM W. HOLMES, \nEMPLOYEE \n \nCLAIMANT \nCONAGRA FOODS, INC.,  \nEMPLOYER \n \nRESPONDENT \nACE AMERICAN INSURANCE COMPANY/  \nBROADSPIRE, INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 9, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJanuary 31, 2023.  The administrative law judge found that the claimant \nfailed to prove he sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant proved \nhe sustained a compensable injury to his left shoulder.  We find that the \nclaimant provided timely statutory notice of his compensable injury.  The \nclaimant proved he was entitled to reasonably necessary medical treatment \nand a period of temporary total disability benefits.     \nI.  HISTORY \n\nHOLMES - H203628  2\n  \n \n \n The record indicates that William Wesley Holmes, now age 54, was \nhired by the respondents, Conagra Brands, Inc. in September 2000.  Mr. \nHolmes testified that he initially worked on a processing line for the \nrespondent-employer.  The claimant testified on direct examination: \n  Q.  What’s your current job at Conagra? \n  A.  Spice Utility Prep. \nQ.  Spice Utility Prep.  Do you know approximately when you \nstarted in the spice utility prep area? \nA.  All I know is I been doing it about 17 years.   \nQ.  Okay, that’s fair.  Now, what do you do as a spice utility \nprep employee? \nA.  I – I’m a little nervous, but I’ll be alright. \nQ.  You’re fine. \nA.  They put these blends together for me in one department, \nand then I drive a truck and take these blends and put them \non a rack inside another room, and then I blend them.   \nQ.  So let’s break that down a little bit further.  About what \ntime do you get to work in the morning? \nA.  I usually start at four o’clock every morning.... \nQ.  And where is the first place that you go? \nA.  Well, the first thing I do I have to get a Kevlar glove and a \nknife....I got to get dressed, put a white coat on, and \neverything.... \nQ.  Where do you go next? \nA.  Then I go inside the spice room and get my things I have \nto have to do the job, which is a boat paddle, and I have to \nhave an apron, and a knife, and a glove, a Kevlar glove.... \nQ.  Are you the only one in that room? \nA.  Yes, ma’am.   \nQ.  So you work primarily by yourself? \nA.  By myself.  Yes, ma’am.   \nQ.  Now you get there, you have all these items, what do you \ndo next?  You mentioned driving a forklift to go get your –  \nA.  Yes, I go to the next room to get them and I drive a forklift.  \nI set them up on a – it’s called a spring-loaded thing.  I don’t \nknow what you call it.  It’s spring-loaded.  It goes up and \ndown.  Then I have to walk up.  When I get off the truck and \ngo back around – this is a River blender I blend them in.... \n\nHOLMES - H203628  3\n  \n \n \nQ.  When you pick up those spices, is a forklift lifting up a \npallet? \nA.  Yeah, it’s lifting up a 1200 pound batch....Some of them \nare much heavier.... \nQ.  Do you do this several times during –  \nA.  It’s cumulatively.   \nQ.  Do you drive the forklift over there several times a day or \njust once during the day? \nA.  Several times a day....Back and forth.   \nQ.  You drive the forklift over.  The pallet gets – the forklift \ngets the pallets of spices.  You deliver that to another area.  Is \nthat correct? \nA.  Yeah, I deliver it to the area where I’m working....On that \nthing I was talking about. \nQ.  So there’s a spring –  \nA.  There’s a spring-loaded deal that holds them in place and I \ngo up the stairs and I start stripping the bags.  I have to strip \nthe bag and put it inside of a River blender, which is probably \nas long as this table right here.... \nQ.  Approximately how many bags of spices are on that \npallet? \nA.  There’s a lot. \nQ.  You don’t know a number? \nA.  I don’t know a number.  I’ve never counted them, but I load \ntwelve hundred batches and when we do the others, they’re \ntwo thousand pounds.   \nQ.  These bags that you’re –  \nA.  The bags are 50-pound bags.  Yes, ma’am.   \nQ.  They’re 50-pound bags.  Okay.  And you mentioned that \nyou have to strip them? \nA.  Yes....I mean I have to have my Kevlar glove on and a \nknife, and I have to take them off the pallet with both hands \nand set them on a table, which is this long. \nQ.  It’s about two feet long? \nA.  Yes, and it’s about – and it comes up to about right here. \nQ.  To your waist level? \nA.  Yes, waist level....I take the pallets off and set them on \nthis table, then strip them....I grab the bags, I strip them, take \nthe outside layer off the bag, put them in a trash can, which is \nbelow me.  There’s a trash can below me which is called a \nmuler, and I set them in that.   \n\nHOLMES - H203628  4\n  \n \n \nQ.  Then you use your knife the cut the bag, and you take that \nouter layer off and throw it away? \nA.  Yes.   \nQ.  So you’re doing that with each one of those –  \nA.  Every bag that’s on that pallet.   \nQ.  Then when those bags are de-bagged, I’ll call it –  \nA.  It’s a little square hole.  You just pour it over in there \ncumulatively.  I mean I’m doing it pretty quickly.... \nQ.  Now, approximately how many pallets do you deliver to \nyour area each day? \nA.  Well, we usually run – I can do four an hour.   \nQ.  Four pallets an hour? \nA.  Yes.   \nQ.  And those pallets, do they range in weight from 1200 to \n2000? \nA.  Uh-huh, 2000 pounds.   \nQ.  And each one of the bags that you’re lifting –  \nA.  Are 50-pound bags.  Correct.... \nQ.  So every bag all day long is 50 pounds? \nA.  50 pounds.  Yes.... \nQ.  So you turn to your right, you pick up a pallet and – I’m \nsorry, you pick up a bag and you set it in front of you.  Is that \ncorrect? \nA.  It is in front of me.   \nQ.  Once it’s stripped and opened, you turn to your left and \nyou pour it into a hole.  Is that correct? \nA.  Yeah, until I get it all in there cumulatively.   \nQ.  And so the boat paddle that you have, what do you do with \nthe boat paddle? \nA.  At the end when I get it all out and if they’re all the same \nblend, I don’t have to use that paddle until the last one is \ndone, until I change to another ingredient.  I change to a \ndifferent type of blend.  Then I have to take that pallet with \nboth of these hands, and I have to scrape the bottom of that \nRiver blender out until I get most of it all out.  I do not get all of \nit, but I try to get most of it out.  There’s usually about 60 \npounds left in there.   \nQ.  When you said you used a pallet, do you mean a paddle? \nA.  The paddle.  It’s a boat paddle.   \nQ.  Okay, it’s a boat paddle.  And approximately how many \ntimes a day are you using the boat paddle? \nA.  Probably four or five times a day.   \n\nHOLMES - H203628  5\n  \n \n \nQ.  And you mentioned that you start work at 4:00 a.m.  What \ntime does your shift end? \nA.  I usually get off when I’m done.  It’s usually different hours.  \nI may work eight, sometimes I work 12 hours, sometimes 10, \nsometimes nine.  I mean you don’t ever know.  Whenever I \nget done, I usually leave. \nQ.  So you’re doing this at least eight hours a day? \nA.  No, more than eight hours.... \nQ.  At the time this accident happened, how many days a \nweek were you working? \nA.  Five. \nQ.  Five days a week.  Okay.  Now, you have been doing this \nnow for 17 years, is that correct? \nA.  To the best of my knowledge.   \nQ.  How has your shoulder been for the last 17 years up until \nFebruary of 2022? \nA.  It’s been fine until they started adding more blends.   \nQ.  So what do you mean by that?  How did your job change? \nA.  It changed when they added more blends.  We usually \nonly blend 12, about 12 a day.  Now we’re doing sometimes \n16/18 blends a day.   \nQ.  When you say “blends,” does that mean – \nA.  That’s them pallets that we’re talking about.   \nQ.  Pallets.  So they added more pallets to your day.  Is that \ncorrect? \nA.  That’s correct.   \nQ.  And so tell us what transpired in February of 2022.   \nA.  Well, I started noticing pain in my shoulder, right here, the \nleft shoulder I had the surgery on.  I just thought, you know, it \nwas just a pulled muscle or something, so I never went to the \nnurse or nothing.  I just tolerated it.  So it began to start \nburning and getting worse, so I went and told my supervisor \nTyler that I was going to go see the nurse, which she is here \nright now.  I went and seen Lisa.... \nQ.  Now, when you went to see Lisa, did you tell her your \nshoulder was hurting? \nA.  Yeah.  She sent me to my family doctor.... \nQ.  Did you tell Lisa at that time that you saw her, that first \ntime, that this was a work injury? \nA.  Yes, I believe I did.   \nQ.  Was some workers’ comp paperwork offered to you that \nday? \n\nHOLMES - H203628  6\n  \n \n \nA.  No. \nQ.  What did Lisa tell you to do? \nA.  She just told me to go see my family physician.   \nQ.  And who is your family physician? \nA.  Dr. Kirkland.     \n \n According to the record, the claimant treated with Dr. Allan K. \nKirkland on February 11, 2022: \nNurse’s Note:  53 y/o male unaccompanied here with c/o left \nshoulder pain.  States pain in left shoulder x 1 wk.  Pain \nradiates to deltoid area.  Pain is 10/10 when doing any activity \nor movement with left arm.  Heat helps with the pain.  Didn’t \nfeel anything pop in shoulder, thinks it from over use of arm.  \nNo pain when resting.  Works at Conagra and does repetitive \nlifting 50 lb. bags and uses left arm mostly when pouring the \nbags.  Has paperwork that needs to be completed before he \ncan come back to work.   \nProvider’s Note:  This 53-year-old male presents to clinic \ntoday complaining of left shoulder pain.  Symptoms started \nabout a week ago.  He has a repetitive motion job as above \nand feels that it started at work.  There was no acute injury.  \nPain is severe with forward flexion or abduction at the \nshoulder.  He denies any crepitus or prior injury.  The right \nshoulder is doing fine.   \n \n Dr. Kirkland assessed “1.  Pain of left shoulder joint....Work note \ngiven.”  Dr. Kirkland planned conservative treatment.   \n The claimant testified on direct examination: \n  Q.  Do you go back to your employer? \n  A.  Yes, I went back to see Lisa. \n  Q.  Did you see her that day or the following day? \n  A.  That day.... \nQ.  And what conversation did you have with Lisa at that \nappointment? \nA.  I gave her the paperwork that Dr. Kirkland gave me.  I had \nso many restrictions I couldn’t sweep or do nothing so. \nQ.  Did you ask for workers’ comp? \n\nHOLMES - H203628  7\n  \n \n \nA.  Yes, I did ask for the workers’ comp paperwork.  Yes, I did.   \nQ.  Was it offered to you? \nA.  No, she said we couldn’t go with that.  That’s why we were \ngoing with Sedgwick.... \nQ.  Sedgwick was your short-term disability carrier? \nA.  Yes, ma’am.   \n \n The record contains a document entitled CONAGRA FOODS, INC. – \nDS.  The document was dated February 11, 2022 and included the \nfollowing language:  “Thank you for reporting this claim to Sedgwick.  Below \nplease find a report of the DS claim that was recently reported.”  The report \nalso included the language, “What is the reason for this absence?  Work \nRelated Injury or Illness....EE has shoulder pain in left shoulder.”   \nThe respondent-employer also provided a Return-to-Work \nTemporary Modified Duty Agreement dated February 11, 2022.  The \nTemporary Modified Duty Agreement indicated that temporary modified \nduty would begin on February 14, 2022, and the document included the \nfollowing language:  “In an effort to assist you in recovering from your \nrecent injury/illness, Conagra offers a temporary modified duty program.  \nTemporary modified duty lasts no longer than 90 days and will be reviewed \nwith you on an ongoing basis, at least every 30 days, to determine if it is \nrehabilitative to you, and if you are progressing toward a full duty release.”  \nThe claimant was assigned temporary restrictions:  “Lifting limit 10 lbs, \nseldom carry or lift, primarily sitting with occasional, walking, standing.”  \nHowever, the Temporary Modified Duty Agreement also included the \n\nHOLMES - H203628  8\n  \n \n \nfollowing language:  “We have identified temporary modified duty work \nbased on your abilities, performing the following job tasks:  ‘No \naccommodation.’”  Individuals signing the Temporary Modified Duty \nAgreement included the claimant, a Human Resources Representative, a \nSupervisor/Manager, and the Occupational Health Nurse, Lisa Chambers.   \nDr. Jefferson Cartwright examined the claimant on March 22, 2022: \nWilliam is a 53 year old gentleman referred by Dr. Kirkland for \nevaluation of his left shoulder.  He reports left shoulder pain.  \nHe denies neck pain.  He denies left upper extremity \nparesthesias.  He reports weakness in the left shoulder.  He \ndenies any history of dislocation....He reports no significant \nimprovement after physical therapy....He denies any history of \ninjury but feels that overuse ConAgra may have contributed.  \nHe was taken off work a month ago by Dr. Kirkland.... \nMy impression clinically is that the patient’s left shoulder \nsuffers with a combination of issues which seem to include \nsubacromial impingement, subacromial bursitis, bicipital \ntendinitis, high-grade partial thickness tearing of the \nsupraspinatus, probable low grade partial thickness tearing of \nthe subscapularis, arthritis of the acromioclavicular joint but I \ncannot rule out any labral pathology given the guarding on \nexamination.  Therefore, before making any treatment \nrecommendations, I have recommended that we send the \npatient for an MRI of the left shoulder.  I would like to see him \nback after he has completed that MRI study so that we can \nreview the findings and then discuss treatment options.   \n \n An MRI of the claimant’s left shoulder was taken on April 7, 2022 \nwith the following impression:  “Supraspinatus tendon partial thickness tear.  \n2.  Infraspinatus tendinopathy.  3.  Marked AC joint arthrosis.”   \n The claimant followed up with Dr. Cartwright on April 13, 2022:  “My \nimpression clinically is that the patient’s left shoulder suffers with a \n\nHOLMES - H203628  9\n  \n \n \ncombination of issues which seem to include subacromial impingement, \nsubacromial bursitis, bicipital tendinitis, high-grade partial thickness tearing \nof the supraspinatus, probable low grade partial thickness tearing of the \nsubscapularis, arthritis of the acromioclavicular joint but I cannot rule out \nany labral pathology given the guarding on examination....I would suggest \nhe consider arthroscopy given that he has tried therapy with no benefit.”  \n Dr. Cartwright performed surgery on April 28, 2022:  “Arthroscopic \nanterior labral repair and capsulorraphy of the LEFT \nshoulder....Arthroscopic rotator cuff repair of the SUPRASPINATUS \n(superior rotator cuff) of the LEFT shoulder....Arthroscopic repair of a type 2 \nSLAP lesion of the LEFT shoulder....Arthroscopic resection of the distal \nclavicle of the LEFT shoulder....Arthroscopic extensive debridement of \nsynovium, posterior labrum, subscapularis, and subacromial bursa of the \nLEFT shoulder....Arthroscopic lysis of adhesions and manipulation under \nanesthesia of the LEFT shoulder....Arthroscopic subacromial \ndecompression and acromioplasty of the LEFT shoulder.”  The post-\noperative diagnosis included “High grade partial thickness tearing of the \nsupraspinatus of the LEFT shoulder.”  Dr. Cartwright provided follow-up \ntreatment after surgery.    \nThe claimant signed a Form AR-C, CLAIM FOR COMPENSATION, \non May 10, 2022.  The ACCIDENT INFORMATION section of the Form AR-\n\nHOLMES - H203628  10\n  \n \n \nC indicated the Date of Accident was February 12, 2022.  The cause of \ninjury was described:  “Lt. Shoulder.  Repetitive Motion   Each hour of shift, \nI pick up 50 lb bags (1200 lbs per pallet, 4 pallets per hour) and set on my \nwork table, strip open bag (remove outer layer of bag) then pour contents \nfrom inner layer into rivet blender.  Once each pallet is blended, I weigh, \nseal and move to warehouse location using electric forklift.  Then I go back \n& start over.  Also stack empty pallets & trash at end of shift.”  The CLAIM \nFOR COMPENSATION was filed with the Commission on May 16, 2022. \nA WORKERS COMPENSATION – FIRST REPORT OF INJURY OR \nILLNESS was prepared on May 17, 2022.  The FIRST REPORT OF \nINJURY OR ILLNESS indicated that the TYPE OF INJURY/ILLNESS was \n“L SHOULDER TENDINITIS.”  The injury was described as \nOCCUPATIONAL DISEASE OR CUMULATIVE INJURY which occurred \nwhile the claimant was “LIFTING.”  The FIRST REPORT OF INJURY OR \nILLNESS also indicated that the injury occurred as the result of “L \nSHOULDER REPETITIVE MOTION.”   \nThe claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY on May 24, 2022.  The ACCIDENT INFORMATION section of the \nForm AR-N indicated that the Date of Accident was February 12, 2022, and \nthat the employer was notified of the accident at 7:05 a.m. on February 12, \n2022.  The claimant discussed the cause of injury:  “Repetitive Motion – \n\nHOLMES - H203628  11\n  \n \n \nEach hr of shift, pick up 50# bags, 1200# per pallet, 4 pallets per hr & set \non table, strip open X 2, pour contents into river blender.  Once blended, \nweigh, seal & move to warehouse location using elec. fork lift.  Go back & \nstart again.  End of day – stack empty pallets, c/o trash, etc.” \nThe claimant received physical therapy visits beginning June 9, \n2022.       \nThe record contains a Return-to-Work Medical Assessment Form \ndated August 1, 2022.  The document indicated that the claimant would \nreturn to unrestricted work as of August 3, 2022.   \nThe claimant testified that he returned to work for the respondents on \nAugust 3, 2022.   \nA pre-hearing order was filed on September 13, 2022.  According to \nthe text of the pre-hearing order, the claimant contended, “On 2/12/2022, \nclaimant was lifting several 50-lb bags onto a table.  He has done this for 17 \nyears.  On the day of the accident, he became unable to lift any more bags \ndue to pain in his left shoulder.  Claimant reported the injury to the nurse, \nbut his claim was denied in its entirety.  Claimant sought treatment on his \nown, He had an MRI to his left shoulder, and it revealed a tear.  Claimant \nunderwent surgery.  Claimant contends that he sustained a compensable \ninjury in the scope and course of his employment and that he is entitled to \n\nHOLMES - H203628  12\n  \n \n \nmedical benefits, TTD and that his attorney is entitled to an attorney fee.  All \nother issues are reserved.”   \n The parties stipulated that the respondents “have controverted the \nclaim in its entirety.”  The respondents contended, “Respondents contend \nthat Claimant did not suffer a compensable gradual onset or specific \nincident injury on 2/12/22 while working for Respondent/Employer.  The \nclaimant failed to provide notice of a claimed injury until 5/16/22.  \nRespondents contend that in the event compensability is found, they would \nnot be liable for benefits until receipt of actual notice of a claimed injury.”  \nThe parties stipulated that “if Claimant is able to prove his left shoulder \ninjury to be a compensable injury, the respondent is entitled to a credit for \nshort term disability benefits as provided in the Arkansas Workers’ \nCompensation Act.”   \n The parties agreed to litigate the following issues: \n1.  Whether Claimant sustained a compensable gradual onset \ninjury to his left shoulder culminating on or about February \n12, 2022; or alternatively, whether he sustained a specific \ninjury to his left shoulder on February 12, 2022.   \n2.  Whether Claimant is entitled to payment of medical bills. \n3.  Whether Claimant is entitled to additional medical \ntreatment. \n4.  Whether Clamant is entitled to temporary total disability \nbenefits from February 12, 2022, to August 3, 2022. \n5. Whether Claimant’s attorney is entitled to an attorney fee. \n6.  Respondents raise Lack of Notice as a defense to the \nclaim.   \n \n\nHOLMES - H203628  13\n  \n \n \nAfter a hearing, an administrative law judge filed an opinion on \nJanuary 31, 2023.  The administrative law judge found, among other things, \nthat the claimant failed to prove he sustained a compensable injury.  The \nadministrative law judge therefore dismissed the claim.  The claimant \nappeals to the Full Commission.     \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n(A)  “Compensable injury” means: \n(ii)  An injury causing internal or external physical harm to \nthe body and arising out of and in the course of \nemployment if it is not caused by a specific incident or is \nnot identifiable by time and place of occurrence, if the \ninjury is: \n(a)  Caused by rapid repetitive motion.... \n \nIn analyzing whether an injury is caused by rapid repetitive motion, \nthe standard is a two-pronged test:  (1)  the tasks must be repetitive, and \n(2)  the repetitive motion must be rapid.  Malone v. Texarkana Public \nSchools, 333 Ark. 343, 969 S.W.2d 644 (1998).  As a threshold issue, the \ntasks must be repetitive, or the rapidity element is not reached.  Id.  \nArguably, even repetitive tasks and rapid work, standing alone, do not \nsatisfy the definition; the repetitive tasks must be completed rapidly.  Id.   \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \n\nHOLMES - H203628  14\n  \n \n \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \nArk. Code Ann. §11-9-102(4)(Repl. 2012) further provides, in \npertinent part: \n(E)  BURDEN OF PROOF.  The burden of proof of a \ncompensable injury shall be on the employee and shall be as \nfollows: \n(ii)  For injuries falling within the definition of compensable \ninjury under subdivision (4)(A)(ii) of this section, the burden of \nproof shall be by a preponderance of the evidence, and the \nresultant condition is compensable only if the alleged \ncompensable injury is the major cause of the disability or need \nfor treatment.   \n \n “Major cause” means more than fifty percent (50%) of the cause.  \nArk. Code Ann. §11-9-102(14)(A)(Repl. 2012).  A finding of major cause \nshall be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(B)(Repl. 2012).  Preponderance of the evidence \nmeans the evidence having greater weight or convincing force.  \nMetropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d \n252 (2003).   \n In workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The determination of the credibility and weight to be given a \nwitness’s testimony is within the sole province of the Commission.  Murphy \nv. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d 794 (2007).  The \n\nHOLMES - H203628  15\n  \n \n \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony it deems worthy of belief.  Farmers Co-op v. Biles, \n77 Ark. App. 1, 69 S.W.3d 899 (2002).  An administrative law judge’s \nfindings with regard to credibility are not binding on the Full Commission.  \nRoberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 S.W.2d 402 (1983).  The \nFull Commission has the duty to adjudicate the claim de novo and we are \nnot bound by the characterization of evidence adopted by an administrative \nlaw judge.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d \n348 (1990).      \n An administrative law judge found in the present matter, “2.  The \nclaimant has failed to prove by a preponderance of the evidence that he \nsustained a compensable gradual onset injury to his left shoulder \nculminating on or about February 11, 2022.”  The Full Commission finds \nthat the claimant proved by a preponderance of the evidence that he \nsustained a compensable injury to his left shoulder.  The claimant, who we \nfind was a credible witness, has been employed with the respondents since \n2000.  The claimant worked on the “Spice Utility Prep” line for the \nrespondents.  The claimant testified that he unloaded bags of spices from \npallets, and the record shows that the claimant’s work for the respondents \nwas repetitive.  The claimant credibly described “1200 pound” batches on \n\nHOLMES - H203628  16\n  \n \n \npallets which he unloaded and processed at a rate of 50 per hour.  The \nclaimant’s testimony indicated that he performed this work for at least eight \nhours daily.  The claimant’s left shoulder gradually began hurting as a result \nof these work activities.     \n The claimant testified that he reported these symptoms to the \ncompany nurse, Lisa Chambers, beginning about February 11, 2022.  At \nhearing, Lisa Chambers basically denied the claimant’s testimony and \nstated that the claimant did not report that his symptoms were related to \nwork.  Nevertheless, the Full Commission recognizes Dr. Kirkland’s \nFebruary 11, 2022 report where Dr. Kirkland stated, “Works at Conagra and \ndoes repetitive lifting 50 lb. bags and uses left arm mostly when pouring the \nbags.”  The respondents argue that the claimant did not provide statutory \nnotice of his injury.  Yet the record clearly includes a Conagra Foods \ndocument dated February 11, 2022 which states in part, “What is the \nreason for this absence?  Work Related Injury or Illness....EE has shoulder \npain in left shoulder.”  Further, the Modified Duty Agreement indicated on \nFebruary 11, 2022 that the claimant had sustained a “recent injury/illness.”  \nIndividuals signing this document included the claimant, a Human \nResources Representative, a Supervisor/Manager, and the Occupational \nHealth Nurse.  The evidence therefore demonstrates that the claimant \nprovided timely notice in accordance with Ark. Code Ann. §11-9-\n\nHOLMES - H203628  17\n  \n \n \n701(b)(1)(A)(Repl. 2012).  There were clearly objective findings of injury, \ni.e., a “partial thickness tear” shown on April 7, 2022.  The Full Commission \nfinds that the “partial thickness tear” was causally related to the gradual-\nonset injury to the claimant’s left shoulder.  The claimant underwent left \nshoulder surgery on April 28, 2022.   \n The claimant contended on his Form AR-C that he picked up 50-\npound bags at the rate of 1200 pounds per pallet, 4 pallets per hour.  The \nclaimant credibly testified that these duties were performed at least eight \nhours daily and sometimes greater than eight hours daily.  The evidence \nshows that the claimant was repetitively lifting 24 50-pound bags from a \npallet, four times each hour, for a total of 96 bags per hour.  The record \nshows therefore that the claimant was lifting at least 768 50-pound bags \ndaily.  The Full Commission finds that the claimant’s work duties for the \nrespondents were both rapid and repetitive.  See Malone, supra.  The Full \nCommission also notes that the claimant returned to work for the \nrespondents following his release from surgery. \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a “compensable injury” in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(ii)(a)(Repl. 2012).  The \nclaimant proved that he sustained an injury causing physical harm to his left \nshoulder, which arose out of and in the course of employment, and was \n\nHOLMES - H203628  18\n  \n \n \ncaused by rapid repetitive motion.  The claimant also established a \ncompensable injury by medical evidence supported by objective findings.  \nThe claimant proved that the compensable injury was the major cause of \nhis disability and need for treatment. \n After reviewing the entire record de novo, therefore, the Full \nCommission finds that the claimant proved he sustained a compensable \ninjury to his left shoulder.  The claimant proved that the medical treatment \nof record, including surgery performed by Dr. Cartwright, was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe evidence demonstrates that the claimant remained within a healing \nperiod and was totally incapacitated from earning wages beginning \nFebruary 12, 2022 and continuing until August 3, 2022.  The claimant \ntherefore proved that he was entitled to temporary total disability benefits \nbeginning February 12, 2022 and continuing until August 3, 2022.  See Ark. \nState Hwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  The \nrespondents are entitled to an appropriate offset in accordance with Ark. \nCode Ann. §11-9-411(Repl. 2012). \n The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \non appeal to the Full Commission, the claimant’s attorney is entitled to an \n\nHOLMES - H203628  19\n  \n \n \nadditional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b)(Repl. 2012). \n IT IS SO ORDERED.      \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n  I must respectfully dissent from the Majority’s determination that the \nclaimant proved by a preponderance of the evidence he sustained a left \nshoulder injury while employed by the respondent employer on or around \nFebruary 12, 2022, and is entitled to medical treatment and temporary total \ndisability benefits. \n Arkansas Code Annotated section 11-9-102 (4)(A)(ii)(a) provides that \na compensable injury includes “(ii) An injury causing internal or external \nphysical harm to the body and arising out of and in the course of \nemployment if it is not caused by a specific incident or is not identifiable by \ntime and place of occurrence, if the injury is: (a) Caused by rapid repetitive \nmotion.” \n\nHOLMES - H203628  20\n  \n \n \nThe supreme court in Malone v. Texarkana Public Schools, 333 Ark. \n343, 969 S.W.2d 644 (1998), noted that the legislature did not establish \nguidelines as to what constitutes \"rapid repetitive motion\" and that as a \nresult, that determination has been made by the fact-finder in each case. \nAfter reviewing rapid repetitive motion cases, the court in Malone, \nsupra, established a test for analyzing whether an injury is caused by rapid \nrepetitive motion:  \"The standard is a two-pronged test: (1) the tasks must \nbe repetitive, and (2) the repetitive motion must be rapid.  As a threshold \nissue, the tasks must be repetitive, or the rapidity element is not \nreached.  Arguably, even repetitive tasks and rapid work, standing alone, \ndo not satisfy the definition.  The repetitive tasks must be completed \nrapidly.\"  Id.  The facts of High Capacity Products v. Moore, 61 Ark. App. 1, \n962 S.W.2d 831 (1998), present a compelling picture of what \nconstitutes rapid repetitive motion.  There, the testimony indicated that the \nclaimant used an airgun to assemble blocks by attaching two nuts to each \nblock with a quota of one thousand units per day.  Her assembly duties \nrequired her to attach a nut every fifteen seconds. This required three \nmaneuvers to be repeated in succession all day: assembling the separate \nparts, using the air-compressed equipment to attach the parts together with \nnuts, and throwing the units in a box.  Id. \n\nHOLMES - H203628  21\n  \n \n \nIn the present case, the ALJ determined that while “[i]t is certain that \nthe claimant gave testimony that demonstrated he would be working at a \nrapid pace . . . [i]t is difficult to find it reasonable that some operation or \nmovement of the body is repetitive when that operation or movement only \noccurs during well less than half of the workday.”  (ALJ Op., P. 15).  At the \nNovember 3, 2022 hearing, the claimant testified that over the course of an \neight hour shift, he could deliver and process four pallets an hour.  (Hrng. \nTr., P. 17). Each pallet consists of forty bags of seasoning weighing fifty \npounds each.  Id.  Most days, the claimant lifted, stripped, and emptied \napproximately twelve pallets during an eight-hour shift, although at times he \nmay be called to work longer shifts and to process sixteen to eighteen \npallets per day.  (Hrng. Tr., Pp. 16-19).  Although the hearing testimony did \nnot investigate how the claimant spent the remainder of his days at work, it \nis clear that at the pace he describes, the claimant’s processing work, even \nassuming eighteen pallets per day would be done within approximately 4.5 \nhours, or a little over half of a shift.  For this reason alone, the claimant’s \nwork cannot be considered repetitive.  If the claimant was indeed only \nprocessing twelve pallets or even up to eighteen pallets over the course of \nan eight hour shift, I would argue that his duties were neither rapid nor \nrepetitive given the evident lack of time constraints.  For this reason alone, \n\nHOLMES - H203628  22\n  \n \n \nthe claimant has failed to meet his burden of proving that his injury was \ncaused by rapid repetitive motion. \nAccording to the testimony of the claimant, a normal workday \nconsisted of him processing only twelve pallets during a shift which would \ntake up much less than half of his shift.  Even on the days when he \nprocessed up to eighteen pallets during a shift, this work would only take up \napproximately half of his workday.  Since processing pallets only took up a \nportion of his shift, this activity cannot be considered rapid or repetitive.   He \ndid not testify about being under any time constraints or offer any real proof \nthat the processing of the pallets was rapid.  He testified that he could \nprocess four pallets an hour, but never testified he had to work rapidly to \nprocess four in an hour.  Since the record does not contain any testimony \non this crucial point, the claimant has failed to prove his work was \nrapid.  The claimant testified that on most shifts he processed twelve pallets \nper shift.  The fact he would only handle twelve pallets during an eight hour \nshift is proof itself that his job was not repetitive.  In addition, processing \npallets was not his only job duty.  According to the WorkSmart Analysis \nattached as an exhibit to the claimant’s deposition, there were twelve duties \nhe was to perform during his shift.  (Resp. Ex 3).  The record is devoid of \nany proof or testimony that any of these other duties were rapid or \nrepetitive.  The fact the claimant had many other duties to perform during \n\nHOLMES - H203628  23\n  \n \n \nhis shift that were not rapid or repetitive is additional proof that his job \nduties for the respondent employer were not rapid or repetitive.  \nThe claimant pleads in the alternative that his injury was the result of \na specific incident.  To prove the occurrence of a specific-incident \ncompensable injury, the claimant must establish that (1) an injury occurred \narising out of and in the scope of employment; (2) the injury caused internal \nor external harm to the body that required medical services or resulted in \ndisability or death; (3) the injury is established by medical evidence \nsupported by objective findings as defined in Arkansas Code Annotated \nsection 11-9-102(16); and (4) the injury was caused by a specific incident \nand is identifiable by time and place of occurrence.  Ark. Code Ann. § 11-9-\n102(4)(A)(i); Springfield Grocer Co. v. Chaulsett, 2023 Ark. App. 53, 659 \nS.W.3d 731 (2023). \nThere was little testimony on this point at the November 2022 \nhearing; however, when asked directly both at his deposition and at the \nhearing whether there was “any type of anything specific that happened in \nFebruary,” the claimant testified, “No, it just started hurting,” and described \na “throbbing” sensation.  (Hrng. Tr., P. 34).  In fact, the claimant testified \nthat by February of 2022, his shoulder had been hurting for several weeks \nand he had ignored it.  (Hrng. Tr., P. 30). \n\nHOLMES - H203628  24\n  \n \n \nThe claimant can point to no specific incident that resulted in his \nalleged injury, and he has therefore failed to meet his burden of proof that \nhe sustained a specific incident on or around February 12, 2022.   \nFor the reasons stated above, I respectfully dissent. \n  \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":36676,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H203628 WILLIAM W. HOLMES, EMPLOYEE CLAIMANT CONAGRA FOODS, INC., EMPLOYER RESPONDENT ACE AMERICAN INSURANCE COMPANY/ BROADSPIRE, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 9, 2023","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["shoulder","back","repetitive","neck","rotator cuff"],"fetchedAt":"2026-05-19T22:29:46.282Z"},{"id":"full_commission-H109799-2023-06-09","awccNumber":"H109799","decisionDate":"2023-06-09","decisionYear":2023,"opinionType":"full_commission","claimantName":"Gina Sallee","employerName":"Universal Helth Services, Inc","title":"SALLEE VS. UNIVERSAL HELTH SERVICES, INC. AWCC# H109799 JUNE 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Sallee_Gina_H109799_20230609.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Sallee_Gina_H109799_20230609.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H109799 \n \nGINA SALLEE, \nEMPLOYEE \n \nCLAIMANT \nUNIVERSAL HELTH SERVICES, INC.,  \nEMPLOYER \n \nRESPONDENT \nSEDGWICK CLAIMS MANAGEMENT \nSERVICES, INC., INSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 9, 2023  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE LAUREN A. SPENCER, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nNovember 3, 2022.  The administrative law judge found that the claimant \nfailed to prove she suffered a compensable injury.  After reviewing the \nentire record de novo, the Full Commission reverses the administrative law \njudge’s opinion.  The Full Commission finds that the claimant proved she \nsustained a compensable injury to her cervical spine and left knee.  We find \nthat the claimant did not prove she was entitled to additional temporary total \ndisability benefits.     \nI.  HISTORY \n\nSALLEE - H109799   2\n  \n \n \n The record indicates that Gina Sallee, now age 49, became \nemployed with the respondents, Heartland Behavioral Health, on or about \nSeptember 13, 2021.  Ms. Sallee was hired to be a Community Relations \nRepresentative 1 for the respondent-employer.  The Job Description for a \nCommunity Relations Representative included the following physical \nrequirements:  “A wide range of motor activity is required in performing job \nresponsibilities.  The majority of activity will be standing, walking, bending, \nand lifting as necessary in the office setting.  Ability to ascent (sic) and \ndescent (sic) stairs in a timely fashion and sit long periods of time sorting \npaperwork and keyboarding.\"  The claimant described her work duties:  “I \nwould travel to various locations in Missouri and Arkansas and provide \ninformation about services.  Answer any questions that the providers may \nhave in regards to the particular services or insurance.”     \nThe record indicates that an individual named Mary Flores signed a \nREFERENCE/INFORMATION REQUEST LETTER on behalf of the \nclaimant, and that the same was dated September 17, 2021.           \nThe parties stipulated that the employee-employer-carrier \nrelationship existed on December 7, 2021.  The claimant testified on direct \nexamination: \n Q.  So what happened on December 7\nth\n of 2021? \nA.  December of ’21, I was heading to Little Rock, which is \nwhere I was supposed to be heading for work that day, and on \nthe interstate a deer came out and I hit the deer.   \n\nSALLEE - H109799   3\n  \n \n \nQ.  And was that a motor vehicle accident that you could \nrecover from and continue on to Little Rock? \nA.  No.  The vehicle was completely totaled.  All the airbags \ndeployed.  The car was inoperable.   \nQ.  And did you report the accident? \nA.  I did immediately to my supervisor. \nQ.  And who was your supervisor? \nA.  Betsy Curtis.   \nQ.  And how did you report it? \nA.  From the best of my remembrance, I texted her and let her \nknow that I had had an accident and sent her photos of the \nvehicle and let her know that I was speaking to the State \nHighway Patrol at that time. \nQ.  Now, when you had the accident, were you alone? \nA.  No.  I had someone riding with me that day.... \nQ.  And what was the person’s name? \nA.  Mary Flores.  She is a corporal at Sebastian County \nJuvenile Detention Center.   \nQ.  So did Ms. Flores riding with you change your routine in \nany way? \nA.  No, not at all.... \n  Q.  How did the morning start out? \nA.  She arrived at my home approximately at 7:30 in the \nmorning and we left at 8:00 a.m. and had the accident, you \nknow, shortly after that.    \n   \nThe claimant filled out an Arkansas State Police Crash Report \nSupplement Driver/Witness Statement Form on December 7, 2021:  “I was \ntraveling E on Hwy I 40 when a deer hit ran out in front of me.  I tried to stop \n& couldn’t.  I hit the deer, and contacted State Hwy. Police.”   \nAn Arkansas Motor Vehicle Crash Report Narrative was completed \non or about December 7, 2021:  “V1 was traveling eastbound on Interstate \n40 near the 40 mile-marker when a deer ran out in front of the vehicle.  V1 \ndidn’t have enough time to stop and collided with the deer in the roadway.”  \n\nSALLEE - H109799   4\n  \n \n \nThe Arkansas Motor Vehicle Crash report indicated that Mary Andrea \nFlores was a passenger in the claimant’s vehicle at the time of the accident.       \nThe respondents state on appeal to the Full Commission that the \nclaimant received temporary total disability benefits beginning December 8, \n2021.  According to the record, the claimant treated at “Back in Action \nSpine and Sports Injury Clinic, Inc.” beginning December 15, 2021.  The \nclaimant complained of pain in areas including her left knee, neck, and \nback.  Dr. Cameron J. Mitchell, D.C. reported “Reverse Curve” in the lateral \ncurvature of the claimant’s cervical spine.       \nDr. Thomas E. Cheyne examined the claimant on December 22, \n2021: \nMs. Sallee is a 48-year-old, who presents with cervical, left \nshoulder, and left arm pain as well as left knee pain.  She has \nalso some milder lower back pain.  She states this began \nwhen she was working and was driving on 12/07/2021 and hit \na deer.  She had x-rays of her neck and left knee, both of \nwhich were within normal limits.  She has been to a \nchiropractor.... \nMUSCULOSKELETAL:  She is tender in the neck.  She has \n20% to 30% limitation of range of motion of her head and \nneck in all directions.  She has normal sensation in the upper \nextremities to touch.  She has good strength and muscle tone \nin her arms.  Her DTRs are 1+ and equal bilaterally.  With \nregard to the left shoulder, she is tender anteriorly.  She has \nmildly limited adduction.  With regard to the right shoulder, \nbilateral elbows and bilateral wrists, she has good range of \nmotion with no pain, effusion, crepitus, or instability.  She is \nminimally tender in the thoracic and lumbar region....With \nregard to the left knee, she is mildly tender anteriorly.  There \nis no swelling or effusion.  There is no erythema or abrasions.  \nShe has good range of motion with no instability.  Again, x-\n\nSALLEE - H109799   5\n  \n \n \nrays of the cervical spine and left knee are within normal \nlimits.   \n \n Dr. Cheyne gave the following impression:  “1.  Cervical strain with \npossible left cervical radiculitis.  2.  Left shoulder contusion.  3.  Left knee \ncontusion.”  Dr. Cheyne planned, “We will put her on Celebrex, have her \ntake hot showers twice daily, stay at light activity, go to physical therapy.  \nWe will put her on work restrictions and we will see her back in one month \nfor followup.”  Dr. Cheyne returned the claimant to restricted work on \nDecember 22, 2021:  “5 LB WEIGHT LIMIT.  NO LIFTING OR REACHING \nABOVE SHOULDER LEVEL.  NO SITTING MORE THAN 45 MINUTES.”   \n Carri Compton, an Administrative Officer with the respondent-\nemployer, provided the claimant with ACCOMMODATION WORK \nREQUIREMENTS on December 27, 2021: \nIn review of your job description and in consultation with Betsy \nrelated to work requirements for the Community Relations \nposition we have outlined work expectations for us meeting \nthe restrictions requested from your physician at Mercy Clinic \nas of 12-22-21:  5 lb. weight limit, No lifting or reaching above \nshoulder level and no sitting more than 45 minutes. \nYou can saturate your local area, and would not be \nsitting/driving more than 45 minutes at a time.  A mix \n(obviously if you are comfortable) of saturating your local area \nwith in-person face-to-face marketing and WFH.  When WFH, \nyou would be expected to have (AT LEAST) 25 phone \ncall/individualized emails a day, everything logged in MS4 of \ncourse.  In addition, at the very least 1 zoom presentation a \nweek with outpatient clinic(s) IF you forgoes (sic) the F2F \nmarketing.  In addition to everything being logged, you would \nstill need to turn in your weekly plan, and weekly recap.  Betsy \nwill also provide HBH RTC postcards for you to send out \n\nSALLEE - H109799   6\n  \n \n \nmailings to OUTPATIENT CLINICS ONLY in your territory.  \nThe main focus would be outpatient clinics.   \nPlease let me know if you have any further questions.   \n \n Dr. Cheyne noted on January 28, 2022, “Ms. Sallee returns for \nfollowup of her cervical strain with possible left cervical radiculitis as well as \nleft shoulder and left knee contusions.  She has had some improvement in \nher neck and shoulder, but no improvement in the knee at all.  She \ncomplains of an instability of the knee when she is walking.  We will \ncontinue her Celebrex, work restrictions, light activity, heat therapy, and \nphysical therapy, but I would also recommend getting an MRI scan of the \nleft knee, and we will see her back after the scan.”   \nAn MRI of the claimant’s left knee was taken on February 10, 2022 \nwith the following findings: \nMultiloculated very thin and small popliteal cyst.  Tear of the \nposterior horn of the medial meniscus.  Cruciate and collateral \nligaments are intact as well as distal patellar tendon complex.  \nLateral meniscus intact.  Small joint effusion.  Very small cyst \nlike lesion in the distal medial fight femur measuring 6 mm. \nIMPRESSION:  Tear of the posterior horn medial meniscus \nwith small joint effusion. \n \n Dr. Cheyne noted on February 15, 2022: \nMs. Sallee returns for followup of her cervical strain with \npossible left cervical radiculitis as well as left knee pain.  She \nhad her MRI scan of her knee which indicated a posterior horn \nmedial meniscal tear.  With regard to the knee, we will get her \nin to see one of our surgeons for an evaluation.  She is having \na great deal of difficulty ambulating because of this.  She also \nis unable to sit in a car for any length of time without her knee \nbothering her as well as her back.  For now, we will leave her \n\nSALLEE - H109799   7\n  \n \n \noff work, get her in to see a surgeon regarding the knee, but \nshe will also continue her Celebrex, and we will get an MRI of \ncervical spine.  I will see her back after the scan.   \n \n Dr. Cheyne reported on February 15, 2022, “This is to certify that \nGina M Sallee was seen in my clinic on 2/15/2022.  SHE IS TO REMAIN \nOFF WORK UNTIL SEEN BY THE SURGEON.  Appt on 3/1 at 8:10.” \n Betsy Curtis, the respondent-employer’s Director of Business \nDevelopment, corresponded with Carri Compton and others on February \n16, 2022:  “I have confirmed that Gina worked up to (including) yesterday.  \nToday is Day 1 of her not working.  I am not sure what I need to do in \nregards to payroll.  Please let me know!”   \n Dr. Bryan Smith, Mercy Clinic Orthopedic Surgery Fort Smith, \nexamined the claimant on March 1, 2022: \nThis is a 48-year-old female, who has been having pain in the \nleft knee since December 7\nth\n.  She states she was involved in \na motor vehicle accident when she was traveling at a high \nspeed and collided with a deer.  She states she has had pain \nin the left knee, shoulder, and neck.  She has previously seen \nby Dr. Cheyne.  She has tried Celebrex as well as physical \ntherapy on the knee.  She says the physical therapy made her \nknee feel worse.  The anti-inflammatories have not helped \nmuch.  She does experience swelling in the knee.  She \nlocalizes the pain medially as well as anteriorly.  Sometimes, \nshe feels like the knee will give out on her.  She did obtain an \nMRI and was referred for evaluation.  She says that she is not \nhaving tremendous amount of catching or locking, but does \nfeel like the knee tries to give way sometimes.  She has used \na compressive sleeve.  She is currently off work.  She is \nemployed as a marketing representative and she does a lot of \ndriving in the car.  She has not been able to do this and has \nhad difficulty walking, going up and down stairs.... \n\nSALLEE - H109799   8\n  \n \n \nExamination of the left knee, she does have a mild effusion.  \nShe is very guarded with mobility of the knee, but she can get \nthe knee straight and flexed to 120 degrees.... \nIMAGING:  X-rays are available for review.  They are negative \nfor fracture or dislocation.  They show maintenance of the joint \nspace.  MRI previously obtained is available for review.  This \nhas been read by the radiologist and I have reviewed the \nimages directly with the patient.  The radiologist did feel like \nthere is a posterior horn medial meniscal tear.  I have looked \nat this on the PD imaging.  I do see signal in the posterior \nhorn of the medial meniscus.  I see this less so on the T2-\nweighted signals.  Certainly, I do not see any displacement.  It \nis hard for me to tell if it does exit to the articular surface.  The \nMCL appears to be intact.  There might be a little bit of edema \naround it, but there is no full-thickness tearing.  ACL and PCL \nare intact as are the lateral ligaments.   \nASSESSMENT:  Left knee pain status post MVC concerning \nfor medial meniscus tear.  I had a long discussion with Gina.  \nShe has been extremely painful with this knee.  She was in a \nhigh-energy accident.  The MRI does look like there is some \nsignal on the PD images in the posterior horn, however, it is \nless so visible on the T2 and I do not know if it exits the \narticular surface.  She is really painful with stress to the \nmedial collateral ligament, although I do feel it is stable.  We \nhave talked about options including diagnostic arthroscopy \nand possible meniscus repair versus debridement versus a \ntrial of continued nonoperative management.  She would like \nto proceed with a trial of nonoperative management.  So, we \nare going to place her into a hinged knee brace.  I would like \nfor her to continue the anti-inflammatory.  I want her to work \non icing.  We have also talked about injection.  We are going \nto hold on this.  We are going to see how she does with the \nhinged brace to protect that medial collateral ligament and see \nif that gives her any improvement in symptoms.  I am going to \nsee her back in 2 weeks’ time.  At that time, if she is \ncontinuing to have mechanical symptoms and her exam is \nconsistent with meniscal pathology, we will give strong \nconsideration to a diagnostic arthroscopy and likely meniscus \nrepair versus debridement.  Other options would be \nconsideration of steroid injection.  All this has been discussed.  \nShe has expressed understanding.  We are also going to \nprovide her a note for work given that she is to be up on her \n\nSALLEE - H109799   9\n  \n \n \nfeet and walk for extended periods.  We are going to keep on \nher current work restrictions, which is off work.  We will revisit \nthis at the following visit.  All this was discussed.  She has \nexpressed understanding and agreed to the plan.   \n \n Dr. Smith reported on March 1, 2022, “Patient was seen in my office \ntoday and is unable to work until seen again in 2 weeks.” \n A representative of the respondent-carrier corresponded with Dr. \nCheyne on March 1, 2022: \nI am the claims examiner handling the Work Comp claim for \nyour patient, Gina Sallee.  She currently has work restrictions \nwhich include no lifting greater than 5 lbs, no reaching above \nshoulder level and no sitting more than 45 minutes.  Her \nemployer has advised me that she’s able to work from home \nwhile staying within the restrictions.  She has a desk job and \ncan stand and sit as needed.  Please indicate below your \napproval/disapproval of her working from home.  Thank you.   \n \n Dr. Cheyne checked a space beside the word “Approve.”       \nThe respondents state on appeal that the claimant received \ntemporary total disability benefits until March 14, 2022. \nThe claimant followed up with Dr. Smith on March 15, 2022:  “She \nstates that, unfortunately, her knee is not getting any better.  She is still \nhaving pain.  She does tell me that she is having cramping in the calf as \nwell as pain that goes all the way down to her foot and caused her foot to \ncramp.  She says that she is not interested in any surgical intervention for \nthe knee.”  Dr. Smith assessed “Left knee status post motor vehicle collision \nwith concern for medial meniscus tear.  I have previously reviewed the MRI \n\nSALLEE - H109799   10\n  \n \n \nwith Gina.  There may be a tear in the posterior horn of the medial \nmeniscus....She is wanting to avoid surgery, so we are going to trial on \ninjection today....With regard to her knee, I would recommend that she \nreturn to her previous work restrictions that were provided, which were no \nlifting heavier than 5 pounds and no sitting for greater than 45 minutes.  So \nwe are going to inject the left knee.  I will see her in six weeks.”       \nDr. Smith reported on March 15, 2022: \n This is to certify that Gina M Sallee was seen in my clinic on \n3/15/2022.   \n She may return to work next scheduled day of work.   \n \n RESTRICTIONS: \n 5 LB WEIGHT LIMIT \n NO LIFTING OR REACHING ABOVE SHOULDER LEVEL \n NO SITTING MORE THAN 45 MINUTES   \n \nThe claimant agreed on cross-examination that the respondent-\nemployer accommodated the work restrictions assigned by Dr. Smith.   \nDr. Cheyne noted on March 30, 2022, “Ms. Sallee returns for \nfollowup of her left cervical radiculitis which has gotten more intense.  We \nhad ordered an MRI scan of the cervical spine, but her worker’s comp \nadjuster cancelled it, apparently wanting to schedule it at some other \nfacility.  They will need to be in control of that.  From my standpoint, she \nhas done medications and physical therapy, and I will see her back on a \np.r.n. basis hopefully after she has an MRI of cervical spine.” \n\nSALLEE - H109799   11\n  \n \n \nDr. Cheyne noted on March 30, 2022, “Negative brain CT scan.”  Dr. \nCheyne stated on March 30, 2022, “This is to certify that Gina M Sallee was \nseen in my clinic on 3/30/2022.  She IS TO CONTINUE CURRENT WORK \nRESTRICTIONS.  WORK AT HOME.” \nThe respondents’ attorney cross-examined the claimant: \nQ.  Do you agree on March 30\nth\n Dr. Cheyne said current \nrestrictions continue and also work from home? \nA.  I do.... \nQ.  But those additional restrictions, working from home, that \nwas also accommodated, right?  You were able to begin \nworking from home? \nA.  Yes, that is correct.   \nQ.  Under those restrictions by Dr. Cheyne, the 5-pound \nweight limit, the no lifting or reaching above your shoulder \nlevel, no sitting for more than 45 minutes at a time, under \nthose restrictions you were not totally incapacitated.  Right? \nA.  Correct. \nQ.  You were not so totally incapacitated you were unable to \nearn wages, right? \nA.  Correct.   \n \n Dr. Cheyne reported on April 26, 2022: \nMs. Sallee returns for followup of her cervical strain with left \ncervical radiculitis.  She had her MRI cervical spine earlier \ntoday.  To my review, the primary finding is a small disk \nosteophyte complex at C5-6 with moderate left facet arthrosis \nwith neural foraminal narrowing.  She had lesser changes at \nother levels.  I do not think that she needs to see a surgeon \nwith regard to her neck.  She has done physical therapy and \nanti-inflammatories.  We will get her into the pain clinic for 1 \nCESI to be done on the left at the C5-6 level, but she is now \ncomplaining of numbness in both of her arms as well as the \nhearing deficit off and on.  She had head trauma in the \naccident and apparently was unconscious for a period of time.  \nShe went to the emergency room, but no scan was done.  I \nwould recommend getting a CT brain scan as well as \n\nSALLEE - H109799   12\n  \n \n \nEMG/NCV of the upper extremities, and we will see her back \nafter those are completed.   \n \n Dr. Smith noted on April 28, 2022, “Cheyne has her on restrictions.  I \nwould agree with those restrictions, and I asked her to continue those until I \nsee her at the next visit.”   \nThe claimant followed up with Dr. Cheyne on June 7, 2022, and Dr. \nCheyne kept the claimant’s work restrictions in place.   \nDr. Natalie Strickland provided a Pain Clinic Consultation on June 8, \n2022:  “Ms. Sallee is a 48 y.o. female who presents to the pain clinic with \nneck pain.  She was a direct procedure referral from Dr. \nCheyne....Inspection of spine reveals good posture, with cervical \nstraightening....Cervical R>L paraspinal and trapezius spasm of muscle \nand myofascial pain to palpation....Cervical MRI from 2022, pertinent \nfindings:  Straightening cervical lordosis, multilevel disc desiccation.”  Dr. \nStrickland assessed “1.  Cervical radicular pain.  2.  Cervical foraminal \nstenosis.  3.  Cervical spondylosis.”  Dr. Strickland treated the claimant \nconservatively.   \nCarri Compton, the respondent-employer’s Director of Human \nResources, signed an Employee Corrective Action Report on June 28, 2022 \nindicating that the claimant’s employment was to be terminated: \nMs. Sallee documented that she contacted the Creative \nCounseling Center on 10-1-21, 4-6-22 and 5-18-22 indicating \nthat she left brochures, was emailing a HBH video and had \n\nSALLEE - H109799   13\n  \n \n \nspoke to Beth Stiles.  It was discovered that this facility had \nnot been contacted by Heartland per contact with one of the \nowners and they did not have any Heartland brochures in their \noffice.  Ms. Sallee also reported that on 6/20/2022 she made \ncontact with approximately 15 contacts by phone (verified by \nMs. Sallee on 6-21-22), however, the follow-up completed by \nthe DBD with the names Ms. Sallee presented as contacts \nwere found to not be in the office and some of the information \npresented was not people that worked at those facilities.... \nA meeting was held on 6-27-22 inquiring about this \ninformation and Ms. Sallee reported “If I documented I spoke \nto someone then I did it.”  During this meeting when questions \nwere attempting to be asked she abruptly ended the call.  As \na result of Ms. Sallee not responding to questions being asked \nand her falsifying contacts that impact the business and image \nof Heartland termination will occur.   \n \n The CEO of Heartland Behavioral Health corresponded with the \nclaimant on June 29, 2022: \nPlease find attached a termination corrective action based on \ninformation gained from our referral sources and your actions \nwhen attempting to discuss this matter.  Enclosed you will find \na box and label in order to return your computer, badge, keys, \nbusiness cards, and any other Heartland property you may \nhave.... \n \n The claimant testified on direct examination: \nQ.  In your termination paperwork that the judge has access to \nand the respondents have introduced it, it mentions something \nabout falsifying contacts.  Did you ever falsify any contacts? \nA.  Not to my knowledge I have never falsified any contacts.   \nQ.  Now, since you were terminated at the end of June, have \nyou been able to work anywhere else? \nA.  No, I have not. \nQ.  Are you still on restrictions? \nA.  I am, yes.   \nQ.  Why have you not been able to work anywhere else? \nA.  Well, based off the restrictions and then the fact that I am \non medication and I am in pain and I still have my injuries, I \n\nSALLEE - H109799   14\n  \n \n \nhave good days and bad days where I can function \nsometimes, but then I may have to sit or stand.  And I am not \nable to take showers as requested by the doctor twice a day, \nso it makes it difficult in finding employment with restrictions \nand pain, you know.  And the requirement of taking my \nmedication affects me as well.   \n \n Dr. Cheyne reported on July 29, 2022: \nThis patient returns for follow-up of her left cervical radiculitis.  \nShe went to the pain clinic but decided not to have an epidural \ninjection.  She has had a nerve conduction test of the upper \nextremities which was normal.  She is seeing an ear nose and \nthroat physician with regard to her hearing loss.  From the \nstandpoint of her cervical radiculitis I will recommend that she \nsimply continue her Celebrex, light activity and heat therapy \nand we will see her back on [an] as needed basis.  She has \nlost her job.  She states the insurance company has now \ndenied her claim.  If she wants to reconsider the epidural \ninjections we can certainly consider that at another time.  I \nhave also suggested to her that if she would like to do so she \ncould get a second opinion evaluation from another physician.   \n \n An amended pre-hearing order was filed on August 11, 2022.  \nAccording to the text of the amended pre-hearing order, the claimant \ncontended that she was “entitled to temporary total disability benefits and \nadditional medical treatment in the form of testing and pain management.  \nClaimant is also entitled to an award of an attorney’s fee.  The claimant \nreserves all other issues.”   \n The pre-hearing order included a “stipulation” indicating, “3.  The \nrespondent controverts that claimant sustained a compensable injury to her \nneck and left knee on December 7, 2021.”  The respondents contended that \n\nSALLEE - H109799   15\n  \n \n \nthe claimant was “not entitled to any benefits under the Arkansas Workers’ \nCompensation law.”   \n According to the August 11, 2022 pre-hearing order, the parties \nagreed to litigate the following issues: \n1.  Whether claimant is entitled to temporary total disability \nbenefits for injuries to her neck and left knee from June 29, \n2022 to a date yet to be determined.   \n2.  If compensable, the compensation rate. \n3.  Whether claimant is entitled to temporary total disability \nbenefits from June 29, 2022 to a date yet to be determined \nas a result of an injury to her neck and left knee.   \n4.  Whether claimant is entitled to additional medical \ntreatment. \n5.  Attorney fees on all indemnity benefits.   \n \nA hearing was held on September 14, 2022, and an administrative \nlaw judge filed an opinion on November 3, 2022.  The administrative law \njudge found, among other things, that the claimant failed to prove she \nsustained a compensable injury.  The claimant appeals to the Full \nCommission.  \nII.  ADJUDICATION \nA.   Compensability \nArk. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n(A) “Compensable injury” means: \n(i) An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in the \ncourse of employment and which requires medical \nservices or results in disability or death.  An injury is \n“accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n\nSALLEE - H109799   16\n  \n \n \n \nThe phrase “arising out of the employment” refers to the origin or \ncause of the accident and the phrase “in the course of the employment” \nrefers to the time, place, and circumstances under which the injury \noccurred.  J. & G. Cabinets v. Hennington, 269 Ark. 789, 600 S.W.2d 916 \n(1980).  In order for an injury to arise out of the employment, it must be a \nnatural and probable consequence or incident of the employment and a \nnatural result of one of its risks.  Id.   \nThe test for determining whether an employee was acting within the \n“course of employment” at the time of the injury requires that the injury \noccur within the time and space boundaries of the employment, when the \nemployee is carrying out the employer’s purpose or advancing the \nemployer’s interests directly or indirectly.  Olsten Kimberly Quality Care v. \nPettey, 328 Ark. 381, 944 S.W.2d 524 (1997), citing Pilgrims Pride Corp. v. \nCaldarera, 54 Ark. App. 92, 923 S.W.2d 290 (1996).  A traveling employee \nis generally within the course of her employment from the time she leaves \nhome on a business trip until she returns, for the self-evident reason that \ntraveling itself is a large part of the employee’s job.  Id.       \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \n\nSALLEE - H109799   17\n  \n \n \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \nThe employee has the burden of proving by a preponderance of the \nevidence that she sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nAn administrative law judge found in the present matter, “3.  \nClaimant has failed to prove by a preponderance of the evidence that she \nsuffered a compensable injury on December 7, 2021.”  It is the duty of the \nFull Commission to enter findings in accordance with the preponderance of \nthe evidence and not on whether there is substantial evidence to support \nthe administrative law judge’s findings.  Roberts v. Leo Levi Hospital, 8 Ark. \nApp. 184, 649 S.W.2d 402 (1983).  The Full Commission reviews an \nadministrative law judge’s opinion de novo, and it is the duty of the Full \nCommission to conduct its own fact-finding independent of that done by the \nadministrative law judge.  Crawford v. Pace Indus., 55 Ark. App. 60, 929 \nS.W.2d 727 (1996).  The Full Commission enters its own findings in \naccordance with the preponderance of the evidence.  Tyson Foods, Inc. v. \nWatkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).   \n\nSALLEE - H109799   18\n  \n \n \nIn the present matter, the Full Commission finds that the claimant \nproved she sustained a compensable injury.  As we have discussed, the \nrecord indicates that the claimant became employed with the respondents \non or about September 13, 2021.  The claimant was hired to be a \nCommunity Relations Representative 1 for the respondents.  This \nemployment position required physical activity with office work, and the \nclaimant testified “I would travel to various locations in Missouri and \nArkansas and provide information about services.”   \nThe parties stipulated that the employment relationship existed on \nDecember 7, 2021.  The claimant testified that she was traveling to Little \nRock to perform employment services for the respondents that day, but that \nthe vehicle she was driving struck a deer on Interstate 40.  The claimant \ntestified that her vehicle was disabled as a result of the accident.  The \nclaimant’s testimony was corroborated by an Arkansas Motor Vehicle Crash \nReport Narrative dated December 7, 2021.  The evidence demonstrates \nthat, because travel was an essential part of the claimant’s work for the \nrespondents, the December 7, 2021 motor vehicle accident arose out of \nand in the course of the claimant’s employment.  J. & G. Cabinets, supra.  \nThe record shows that the accident occurred within the time and space \nboundaries of the employment, when the claimant was directly carrying out \nthe employer’s purpose.  Olsten Kimberly Quality Care, supra.  Traveling \n\nSALLEE - H109799   19\n  \n \n \nwas a large part of the claimant’s job.  See id.  Whether or not the \nclaimant’s friend Mary Flores testified on her behalf, the Arkansas Motor \nVehicle Crash Report certainly indicated that Ms. Flores was at least \npresent at the time of the motor vehicle accident.  Moreover, the \nrespondent-employer obviously believed the claimant to be performing \nemployment services on December 7, 2021, because the respondents paid \ntemporary total disability benefits beginning December 8, 2021.  The \nclaimant also testified that the respondent-carrier initially provided medical \ntreatment.     \nThe claimant proved by a preponderance of the evidence that she \nsustained a compensable injury.  The claimant proved that she sustained \nan accidental injury causing physical harm to the body.  The claimant \nproved by a preponderance of the evidence that the injury arose out of and \nin the course of employment, required medical services, and resulted in \ndisability.  The claimant proved that the injury was caused by a specific \nincident and was identifiable by time and place of occurrence on December \n7, 2021.   \nAdditionally, the claimant established a compensable injury by \nmedical evidence supported by objective findings.  Dr. Mitchell reported \n“Reverse Curve” in the lateral curvature of the claimant’s cervical spine on \nDecember 15, 2021.  Muscle spasms can constitute objective findings to \n\nSALLEE - H109799   20\n  \n \n \nsupport compensability.  Continental Express, Inc. v. Freeman, 66 Ark. App. \n102, 989 S.W.2d 538 (1999).  Straightening of the spine is a sign that is \nnormally associated with muscle spasm in the straightened area.  Estridge \nv. Waste Management, 343 Ark. 276, 33 S.W.3d 167 (2000).  The claimant \ntherefore proved that she sustained a compensable cervical strain as \ndiagnosed by Dr. Cheyne, and that the cervical strain was established by \nobjective medical findings not within the claimant’s voluntary control.  There \nwere also objective findings supporting Dr. Cheyne’s diagnosis of “Left knee \ncontusion.”  An MRI of the claimant’s left knee on February 10, 2022 \nshowed “Tear of the posterior horn of the medial meniscus.”  This \nabnormality demonstrated on MRI testing was clearly an objective medical \nfinding establishing a compensable injury to the claimant’s left knee.  Dr. \nSmith also noted an objective finding in the claimant’s left knee, notably \n“effusion” on March 1, 2022.  “Effusion” is another objective medical finding \nestablishing a compensable injury.  Swifton Public Schools v. Shields, 101 \nArk. App. 208, 272 S.W.3d 851 (2008).     \nThe claimant therefore proved by a preponderance of the evidence \nthat she sustained compensable injuries to her left knee and cervical spine \non December 7, 2021.  The Full Commission reiterates in the present \nmatter that the claimant was acting within the course of her employment \nwith the respondents when she sustained the compensable injuries to her \n\nSALLEE - H109799   21\n  \n \n \nleft knee and cervical spine, because travel was a necessary part of the \nclaimant’s employment.  See Olsten Kimberly Quality Care, supra.     \nB.   Temporary Disability \nThe respondents state on appeal to the Full Commission that they \npaid temporary total disability benefits beginning December 8, 2021 until \nMarch 14, 2022.  The claimant contends that she is entitled to additional \ntemporary total disability benefits beginning June 20, 2022 and continuing \nuntil a date yet to be determined.  The Full Commission finds that the \nclaimant did not prove she was entitled to additional temporary total \ndisability benefits.   \nThe claimant proved by a preponderance of the evidence that she \nsustained a compensable unscheduled injury to her cervical spine on \nDecember 7, 2021.  For an unscheduled injury, temporary total disability is \nthat period within the healing period in which the employee suffers a total \nincapacity to earn wages.  Ark. State Hwy. Dept. v. Breshears, 272 Ark. \n244, 613 S.W.2d 392 (1981).  “Healing period” means that period for \nhealing of an injury resulting from an accident.  Ark. Code Ann. §11-9-\n102(12)(Repl. 2012).  The healing period continues until the employee is as \nfar restored as the permanent character of her injury will permit.  Arkansas \nHighway & Transp. Dep’t v. McWilliams, 41 Ark. App. 1, 846 S.W.2d 670 \n\nSALLEE - H109799   22\n  \n \n \n(1993).  The determination of when the healing period ends is a question of \nfact for the Commission.  Id. \nIn the present matter, the claimant sustained a compensable cervical \nstrain on December 7, 2021.  Dr. Cheyne assigned work restrictions \nbeginning December 22, 2021.  The respondents provided reasonable \nACCOMMODATION WORK REQUIREMENTS beginning December 27, \n2021.  However, the respondent-carrier continued to pay temporary total \ndisability benefits until March 14, 2022.  Dr. Smith released the claimant to \nreturn to restricted work beginning March 15, 2022, and as we have noted, \nthe claimant agreed on cross-examination that the respondent-employer \naccommodated the work restrictions assigned by Dr. Smith.  The claimant \nalso agreed on cross-examination that she was not totally incapacitated \nfrom earning wages.  The evidence does not demonstrate that the claimant \nremained within a healing period for her compensable cervical strain at any \ntime after March 14, 2022.  Temporary disability benefits cannot be \nawarded after an employee’s healing period has ended.  Milligan v. West \nTree Serv., 57 Ark. App. 14, 946 S.W.2d 697 (1997).  Nor does the record \nshow that the claimant was totally or partially incapacitated from earning \nwages at any time after March 14, 2022.  The claimant therefore did not \nprove she was entitled to any additional temporary total disability benefits \nwith regard to her unscheduled compensable injury.   \n\nSALLEE - H109799   23\n  \n \n \nThe claimant also sustained a scheduled compensable injury to her \nleft knee on December 7, 2021.  An employee who has sustained a \nscheduled injury is to receive temporary total disability benefits during her \nhealing period or until she returns to work.  Ark. Code Ann. §11-9-\n521(a)(Repl. 2012); Wheeler Constr. Co. v. Armstrong, 73 Ark. App. 146, \n41 S.W.3d 822 (2001).  The healing period is that period for healing of the \ninjury which continues until the permanent character of the injury will permit.  \nNix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  \nWhether an employee’s healing period has ended is a question of fact for \nthe Commission.  Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 \nS.W.2d 25 (1995). \nThe claimant on appeal argues that she is entitled to temporary total \ndisability benefits from June 20, 2022 to a date yet to be determined.  The \nclaimant cites Superior Industries v. Thomaston, 72 Ark. 7, 32 S.W.3d 52 \n(2000), and contends, “As in Superior, here this claimant did not refuse the \nwork even though she was working in pain.  She was not terminated by \nchoice; and therefore, she should not be denied TTD.”   \nIn Superior Industries v. Thomaston, supra, the Arkansas Court of \nAppeals awarded temporary total disability benefits even though the \nclaimant’s employment was terminated after he returned to light-duty work.  \nNevertheless, Superior Industries was limited to its facts and did not involve \n\nSALLEE - H109799   24\n  \n \n \nArk. Code Ann. §11-9-521(Repl. 2012), the statute applicable to the \nclaimant’s scheduled injury.  See Robertson v. Pork Group, Inc., 2011 Ark. \nApp. 448, 384 S.W.3d 639.  The claimant in the present matter returned to \nappropriate and suitable work following her scheduled injury.  According to \nthe evidence of record, however, the claimant was patently dishonest with \nthe respondent-employer with regard to the claimant’s employment duties.  \nThe respondents’ Director of Human Resources documented on June 28, \n2022 that the claimant falsely reported making several potential business \ncontacts.  When the respondents attempted to investigate these \ndiscrepancies, the claimant abruptly ended the conversation.  The \nrespondents appropriately terminated the claimant’s employment effective \nJune 28, 2022.  The Commission is not required to believe the testimony of \nany witness, and may accept and translate into findings of fact only those \nportions of testimony it deems worthy of belief.  Tucker v. Roberts-McNutt, \nInc., 342 Ark. 511, 29 S.W.3d 706 (2000).  With regard to the termination of \nthe claimant’s employment, we find that portion of the claimant’s testimony \nunworthy of belief.  An indicator of the claimant’s lack of credibility with \nregard to her work record is the claimant’s delivery to the respondents of a \ncounterfeit diploma purportedly issued from Michigan State University \nconferring upon the claimant a “Master of Social Work.”     \n\nSALLEE - H109799   25\n  \n \n \nThe Full Commission finds that the claimant’s entitlement to \ntemporary disability benefits ended when she returned to work within her \nphysical restrictions.  See Turcios v. Tyson Foods, Inc., 2016 Ark. App. 471, \n504 S.W.3d 622.  The respondents’ attorney cross-examined the claimant \nat hearing: \nQ.  On June 29th of ’22 is when you received a termination \nletter.  Right? \n A.  I’m sorry, what date again? \n Q.  June 29\nth\n of “22? \nA.  I am not sure exactly, the exact date I received it, but I \nbelieve the letter was dated the 28\nth\n, but I don’t recall the \nexact date I received the box with the termination letter in it. \nQ.  Had you not been terminated, those accommodations \nwould have continued.  Right? \nA.  As far as I am aware, yes.   \n \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she sustained a compensable injury to her cervical \nspine and left knee on December 7, 2021.  We find that the claimant did not \nprove she was entitled to additional temporary disability benefits.  The \nclaimant proved that the medical treatment of record was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThere are currently no recommendations of record for additional medical \ntreatment.  For prevailing in part on appeal, the claimant’s attorney is \nentitled to a fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b)(Repl. 2012). \n \n\nSALLEE - H109799   26\n  \n \n \n IT IS SO ORDERED   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n  I must respectfully dissent from the Majority’s determination that the \nclaimant has met her burden of proving that she suffered a compensable \ninjury to her cervical spine and left knee on December 7, 2021. \n The outstanding issue in this case is whether the claimant was \nengaged in a work-related activity at the time of her car accident on the \nmorning of December 7, 2021 as required by our Rules.  See Ark. Code \nAnn. § 11-9-102(4)(A)(i).  A compensable injury does not include an injury \nthat is inflicted upon the employee at a time when employment services are \nnot being performed.  Ark. Code Ann. § 11-9-102(4)(B)(iii).  The phrase \"in \nthe course of employment\" and the term \"employment services\" are not \ndefined in the Workers' Compensation Act.  Texarkana Sch. Dist. v. \nConner, 373 Ark. 372, 284 S.W.3d 57 (2008).  An employee is performing \nemployment services when he or she is doing something that is generally \nrequired by his or her employer.  Id.; Pifer v. Single Source Transp., 347 \n\nSALLEE - H109799   27\n  \n \n \nArk. 851, 69 S.W.3d 1 (2002).  We use the same test to determine whether \nan employee is performing employment services as we do when \ndetermining whether an employee is acting within the course and scope of \nemployment.  Jivan v. Econ. Inn & Suites, 370 Ark. 414, 260 S.W.3d 281 \n(2007).  The test is whether the injury occurred within the time and space \nboundaries of the employment, when the employee was carrying out the \nemployer's purpose or advancing the employer's interest, directly or \nindirectly.  Id.  The critical inquiry is whether the interests of the employer \nwere being directly or indirectly advanced by the employee at the time of \nthe injury.  Conner, 373 Ark. 372, 284 S.W.3d 57.  Moreover, the issue of \nwhether an employee was performing employment services within the \ncourse of employment depends on the particular facts and circumstances of \neach case.  Id. \n The particular facts of this case rest on the claimant’s credibility as a \nwitness. \"Where there are contradictions in the evidence, it is within the \nCommission's province to reconcile conflicting evidence and to determine \nthe true facts.\"  Templeton v. Dollar Gen. Store, 2014 Ark. App. 248, 434 \nS.W.3d 417 (2014).  Questions concerning the credibility of witnesses and \nthe weight to be given to their testimony are within the exclusive province of \nthe Commission.  Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, 79, 250 \nS.W.3d 263, 271 (2007).  A claimant's testimony is deemed controverted as \n\nSALLEE - H109799   28\n  \n \n \na matter of law.  See Ester v. Nat'l Home Ctrs. Inc., 335 Ark. 356, 981 \nS.W.2d 91(1998).  The Commission is not required to believe the testimony \nof the claimant or any other witness but may accept and translate into fact \nonly those portions of the testimony that it deems worthy of belief.  Long, 98 \nArk. App. at 79-80, 250 S.W.3d at 271-72. \n The ALJ astutely enumerated five individual reasons why the \nclaimant’s testimony cannot be trusted.  First, when applying for her \nposition with the respondent employer, the claimant submitted a fake \ndiploma representing that she had a master’s degree in social work from \nMichigan State University.  (Resp. Ex. 1, Pp. 7, 13).  The claimant admitted \nin her testimony that she did not have a master’s degree and had never \nenrolled in Michigan State.  (Hrng. Tr. Pp. 23-24).  Although the claimant \ntestified that this was a “display for my future achievements,” it is, more \nsimply put, a total fabrication and disregard for the truth.  (See Hrng. Tr., P. \n23).  Additionally, on her resume, the claimant represented that she was a \nlicensed social worker and presented a document representing a \nprovisional social work license.  (Resp. Ex. 1, P. 13).  This is another total \nfabrication and disregard for the truth. The claimant has never been a \nlicensed social worker.  (Hrng. Tr., P. 24).  The claimant testified that these \nfabrications “might be beneficial . . . to help me get the job, but then I \nrealized later that the job never required any type of social work degree.” \n\nSALLEE - H109799   29\n  \n \n \n(Hrng. Tr., P. 23). The degree in question “was made by me.”  Id.  As to her \npurported provisional social work license, the claimant testified that she \n“took the test, but I did not pass it.”  (Hrng. Tr., P. 24).  During the claimant’s \nemployment with the respondent employer, the claimant used the \nabbreviation “PLMSW” in her email signature, giving the incorrect \nimpression that she was a provisionally licensed master social worker. \n(Resp. Ex. 1, P. 60).  Upon questioning, the claimant admitted she did not \nhave a provisional license and that the use of LMSW was not accurate. \n(Hrng. Tr., P. 24). \nThe claimant continued her habit of not telling the truth throughout \nher employment with Heartland, falsifying reports reflecting that she met \nwith Beth Stites at Creative Counseling Solutions when it was later \ndiscovered that no one worked there by that name and no Heartland \nbrochures were left at their offices.  (Resp. Ex. 1, Pp. 96-100).  \nLater, in June 2022, the claimant was given a list of businesses to \ncontact and she made entries into the computer system reflecting that she \nhad done so.  When Betsy Curtis with Heartland followed up with those \nbusinesses to ensure that contact had been made, she could not confirm \nthat any contacts had been made. In fact, for many of these calls, Ms. \nCurtis learned that the person that the claimant purported to contact either \ndid not work for the business, was on vacation for the summer, or had not \n\nSALLEE - H109799   30\n  \n \n \nreceived a call from the claimant.  (Resp. Ex. 1, Pp. 101-103).  The claimant \nwas fired from the respondent employer for this incident.  I am in agreement \nwith the ALJ that the claimant’s abject refusal to directly answer any \nquestion regarding the falsification of contacts was unimpressive and does \nnot add any credibility to the claimant’s testimony. \n The Majority takes the respondent carrier’s initial acceptance of this \nclaim as compensable as proof that the claimant was providing employment \nservices for Heartland at the time of her December 2021 accident.  The \ninitial acceptance of the claim by the respondents is absolutely no proof that \nthe claimant was performing employment services at the time of the \naccident.  The Commission is well aware that many cases are initially \naccepted as compensable and later denied when the carrier’s investigation \nis completed and respondents should not be punished as a result and their \ninitial acceptance is not and should not be treated as proof.  \nThe Majority fails to recognize that the claimant’s irrefutable history \nof not telling the truth to benefit herself has a direct impact on the \ncompensability of this claim.  The Majority spends little time addressing the \nissue of credibility when the credibility of the claimant is the crux of this \ncase.  The ALJ, who was able to observe the demeanor and credibility of \nthe claimant, correctly determined that the claimant was not a credible \nwitness and denied her claim.  The claimant fabricated her resume, a \n\nSALLEE - H109799   31\n  \n \n \ndiploma from Michigan State, and a social work license in order to be hired \nby the respondent employer and was ultimately fired due to her inability to \nbe truthful.  \nThere is no record reflecting any appointments that the claimant had \nset for the date of her accident, and she did not name any offices she \nintended on visiting specifically.  Beyond her own statements made to make \nthis appear to be a work-related injury, there is no testimony or evidence \nproving that the claimant was indeed traveling to Little Rock for work.  The \nclaimant did not call her passenger in the accident, Mary Flores, to \nsubstantiate her claim, but rather rested her entire claim on her own self-\nserving testimony.  It is unreasonable to take the claimant’s word as fact \nconsidering her history of being unable to tell the truth, and I believe the \nclaimant has failed to meet her burden of proving that she was providing \nemployment services at the time of her accident on December 7, 2021. \n The respondents clearly proved the claimant is not truthful and not \ncredible.  Even more importantly, the claimant admitted under oath that she \nfalsified documents and did not tell the truth.  She admitted under oath that \nshe stated on her resume she had a master’s degree from Michigan State \nwhen she had never even enrolled there.  She went so far as to provide the \nrespondent employer with a fake diploma from Michigan State.  She also \nstated on her resume she was a licensed social worker experienced in all \n\nSALLEE - H109799   32\n  \n \n \naspects of social services and provided a print out from the Arkansas Social \nWork Licensing Board of her provisional license when in fact she admitted \nunder oath that she did not pass the social work exam and had never held a \nprovisional license.  She also admitted at the hearing that she used LMSW \nas the signature line on her email when she does not have a degree in \nsocial work or a license to practice social work. \n The only true issue in this case is whether the claimant was a \ncredible witness. The only proof presented was her own self-serving \ntestimony.  The claimant has admitted under oath that she is not truthful, \nfabricated her resume, produced a fake diploma, provided a printout from \nthe Social Work Licensing Board when she had failed the licensing exam, \nand held herself out as a licensed master social worker when she had \nnever received a degree or license in that field.  If the claimant was this \nuntruthful just to obtain a job with Heartland, it defies reason to believe her \ntestimony is credible while she is seeking workers’ compensation benefits. \n To accept the testimony of the claimant, who under oath has \nadmitted she is not truthful, only rewards her deceitful behavior.  I agree \nwith the ALJ that the claimant is not credible and that her claim should be \ndenied. \nFor the reasons stated above, I respectfully dissent. \n  \n\nSALLEE - H109799   33\n  \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":51653,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H109799 GINA SALLEE, EMPLOYEE CLAIMANT UNIVERSAL HELTH SERVICES, INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 9, 2023","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":["cervical","knee","back","neck","shoulder","thoracic","lumbar","strain"],"fetchedAt":"2026-05-19T22:29:46.303Z"},{"id":"alj-H206746-2023-06-09","awccNumber":"H206746","decisionDate":"2023-06-09","decisionYear":2023,"opinionType":"alj","claimantName":"Jeremy Russell","employerName":"Performance Proppants, LLC","title":"RUSSELL VS. PERFORMANCE PROPPANTS, LLC AWCC# H206746 JUNE 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/RUSSELL_JEREMY_H206746_20230609.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RUSSELL_JEREMY_H206746_20230609.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: H206746 \nJEREMY C. RUSSELL,  \nEMPLOYEE                                                                                                              CLAIMANT                                                  \n \nPERFORMANCE PROPPANTS, LLC,  \nEMPLOYER                                                                                                         RESPONDENT  \n \nBRIDGEFIELD CASUALTY, INS. CO./ \nSUMMIIT CONSULTING, LLC,                                        \nINSURANCE CARRIER/THIRD PARTY  \nADMINISTRATOR (TPA)                                                                                RESPONDENT  \n \n \n             OPINION FILED JUNE 9, 2023        \n        \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Texarkana, \nMiller County, Arkansas. \n \nClaimant represented by the Honorable Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  the  Honorable  Michael  E.  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nStatement of the Case \nOn  March  14,  2023,  the  above-captioned  claim  came  on  for  a  hearing in  Texarkana, \nArkansas.  Previously, a pre-hearing telephone conference was conducted in this matter on January \n11, 2023.  That same day, a Pre-hearing Order was filed.  A copy of said order has been marked \nas Commission’s Exhibit 1 and made a part of the record. \nStipulations \nDuring  the  prehearing  telephone  conference,  and/or  hearing  the  parties  agreed  to  the \nfollowing stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n \n\nRussell- H206746 \n \n2 \n \n2. That  the  employee-employer-insurance  carrier  relationship  existed  at  all  relevant \ntimes,  including  on  or  about  June  9,  2022,  when  the  Claimant  sustained  an \nadmittedly compensable injury to his right knee, while working for the respondent-\nemployer. \n3. The Respondents accepted the right knee injury and paid some benefits. \n4.  The  Respondents  have  paid  the  Claimant  temporary  total  disability  (TTD)  at  the \nrate of $719.00 per week. \n5. All   issues   not   litigated   herein   are reserved  under  the  Arkansas  Workers’ \nCompensation Act.    \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1.  The Claimant’s correct average weekly wage (AWW) on the day of his injury.  \n2. Whether the Claimant is entitled to an underpayment of temporary total disability  \n             due to a miscalculation of his average weekly wage. \n    \n3. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n The respective contentions of the parties are as follows: \nClaimant: \nThe Claimant contends that he sustained injuries to his left knee in the course and scope \nof his employment while working for the Respondent-employer on August 6, 2020.  The Claimant \nwas  placed  at  maximum  medical  improvement  (MMI)  on  April  22,  2022,  and  released  by  Dr. \nSmith  for  his  left  knee  injury  with  permanent  restrictions  of  limited  standing  and  limited  stairs \npermanently.  On or about May 13, 2022, Respondents wrote to the Claimant and advised that his \nprior job (earning $23/hour and working 60-84 hours per week) was not available.  Respondents \noffered the Claimant another position earning $20/hour working six twelve-hour days on/two days \noff.  The Claimant started that position on May 23, 2022, and suffered an injury to his right knee \non or about June 9, 2022, while bending over to set a toolbox down that he was carrying.  The \nClaimant contends that the Respondents miscalculated his AWW and TTD benefits. \n\nRussell- H206746 \n \n3 \n \nArk. Code Ann. §11-9-518 provides, in pertinent part, that the average weekly wage shall \nbe computed on the average weekly wage earned by the employee under the contract of hire at the \ntime of the accident and in no case shall be computed on less than a full-time work week.  Overtime \nis  to  be  added  to  the  regular  weekly  wages  and  shall  be  computed  by  dividing  the  overtime \nearnings  by  the  number  of  weeks  worked  by  the  employee  in  the  same  employment  under  the \ncontract of hire at the time of the accident.  According to the Respondents' evidence, the Claimant's \ncontract of hire at the time of his accident was $20.00 an hour for six days per week working 12 \nhours per day.  Forty (40) hours per week at $20.00 an hour equals $800.00.  The contract of hire \ncalled for the Claimant to work 32 hours of overtime per week at the overtime rate of $30.00 an \nhour, which equals $960.00.  The base rate of $800.00 plus the overtime rate of $960.00 equals an \nAWW of $1,760.00.  Therefore,  $1,760.00 x .6667 = $1,173.00.  The Claimant anticipates that \nthe  testimony  will  actually  reflect  that  even  though  the  employer  offered  the  aforementioned \ncontract of hire, the  employer changed the contract of hire to a seven-day work week,  working \ntwelve (12) hours a day at the same rate of pay of $20 per hour times 40 hours per week with \nthe employee to take the following week off.   If the Commission finds in favor of this evidence, \nthe appropriate AWW should be $1,430.00.  This is calculated by multiplying the base rate of pay \nof $20.00 per hour times 40 hours per week.  Ark. Code Ann. §11-9-518(a)(1) provides that in no \ncase  shall  the  average  weekly  wage  be  calculated  using  less  than  a  full-time  work  week.    Ark. \nCode Ann. §11-9-518(b) provides that overtime  earnings  are to be added to the regular weekly \nwages and shall be computed by dividing the overtime earnings by the number of weeks worked \nby the employee in the same employment under the contract of hire at the time of the accident.  If \nthe Claimant worked 42 hours of overtime per week but only worked two weeks under the new \ncontract  of  hire,  then  that  would  be  21  hours  of  overtime  per  week.    Thirty  dollars  ($30.00) \n\nRussell- H206746 \n \n4 \n \nmultiplied by 21 hours of overtime equals $630.00.  Eight hundred dollars ($800.00) plus $630.00 \nequals  an  average  weekly  wage  of  $1,430.00.  One  thousand  four  hundred  thirty  ($1,430.00) x \n.6667 = $953.00.  The maximum compensation rate for a 2022 injury is $790.00. \nNo matter how it is calculated, the Claimant is entitled to the maximum compensation rate \nfor 2022.  Respondents have underpaid the Claimant.  The Respondents made two payments on \nSeptember  23,  2022,  and  September  30,  2022,  at  the  maximum  compensation  rate  of  $790.00  \nthen, the Respondents notified the Claimant that they had made an overpayment and they started \npaying the Claimant at the rate of $719.00 per week and they deducted their claimed credit in the \nfirst  check  issued  on  or  about  October  18,  2022,  which  was  for  $1,296.00.  The  remaining \npayments  have  been  paid  in  the  amount  of  $719.00  per  week.    The  Claimant  is  entitled  to  the \nmaximum  compensation  rate  for  2022.    The  Claimant  is  entitled  to  the  underpayment  and \nattorney's fees for the past benefits and additional indemnity going forward.  \nAll other issues are reserved. \n  Respondents: \nThe Respondents contend that the Claimant injured his left knee.  The claim was accepted.  \nBenefits were paid at the correct compensation rate by the Respondents.  The file numbers on \nthe Claimant's prehearing information are incorrect as is the correct carrier. \n1\n \n                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on  my  review  of  the  relevant  evidentiary  record,  to  include  the  documentary \nevidence  listed  below,  other  matters  properly  before  the  Commission,  and  after  having  had  an \nopportunity to hear the testimony of the witnesses and observe their demeanor during the hearing, \n \n1\n The Claimant’s attorney has corrected the aforementioned clerical error.   \n \n\nRussell- H206746 \n \n5 \n \nI hereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this  \n            claim. \n       \n2. I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.         The Claimant evidence preponderates that the Claimant’s average weekly \n            wage on June 9, 2022, was $,1016.66.  His weekly compensation rates are  \n$728.00 and $546.00. \n \n4. The Claimant proved by a preponderance of the evidence that he is entitled  \n            to an underpayment and attorney’s fees for past benefits and additional  \n            indemnity benefits due him in the future. \n \n5.         All issues not litigated herein are reserved under the Arkansas Workers’ \n            Compensation Act.    \n  \n \nSummary of Evidence \n \nMr. Jeremy C. Russell (referred to hereafter as the “Claimant”) testified on his own behalf. \nAlso, Ms. Cason Wilkinson testified on behalf of the Respondents.   \n            The record consists of the March 14, 2023 hearing transcript and the following exhibits, \nwhich  were  offered  into  evidence  without  objection:  Specifically,  Commission’s  Exhibit  1 \nincludes the January 11, 2023 Pre-hearing Order; Claimant’s Exhibit 1, comprises 13 numbered \npages of Claimant’s Non-Medical Exhibit; Respondents’ Hearing Exhibit consists of four  pages, \nwhich was marked as Respondents’ Exhibit 1; and Respondents’ Exhibit 2 consists of one page of \ncalculations for the Claimant’s average weekly wage.  \nThe Claimant’s and the Respondents’ responses to the Pre-hearing  Questionnaires  have \nbeen blue-backed and made a part of the record.  They were inadvertently omitted from the hearing \ntranscript of March 14, 2023.   Also, the parties filed Post-Hearing Briefs which have been blue-\nbacked and made a part of the record.    \n\nRussell- H206746 \n \n6 \n \n                                                           Testimony \nJeremy C. Russell   \n The Claimant has worked for the respondent-employer for five years.  He began working \nfor them in March of 2019.  The Claimant verified that he sustained a prior on-the-job injury to \nhis left knee on August 6, 2020.   While on light duty due to this injury, the Claimant confirmed \nthat he got a raise from $20.00 to $23.00.  During the Claimant’s first injury of August 2020, he \nreceived treatment from Dr. Joel Smith.  On April 22, 2022, Dr. Smith pronounced the Claimant \nto be at maximum medical improvement (MMI) and released him to return to work due to his left \ninjury.  \n At that time, Dr. Smith placed the Claimant on permanent restrictions of limited standing \nand limited climbing of stairs.  He confirmed that he continued to work in the same position that \nhe had worked in for a few weeks.  The Claimant agreed that between April 22 and May 23, he \ncontinued  working  the  other  job  that  he  had  been  doing.  At  that  point,  the  Claimant  was  still \nmaking $23.00 an hour.   \nThe Claimant admitted that included in Respondents’ Exhibit 1 is a letter dated May 13, \n2022.  Per this letter, the employer gave the Claimant the choice of three (3) positions within his \nrestrictions.  The three job choices were that of a dry plant operator, a dredge operator, and a load \nout operator.  He verified that he accepted the new position on May 23, 2022, as a dredge operator.     \nThe Claimant agreed that  as a dredge operator he made $20.00 an hour.   Initially, the Claimant \nwas working 12 hours per shift.  He explained that this meant he was working six days on and six \ndays off.  The Claimant admitted that he worked that schedule for a period of time.   \n\nRussell- H206746 \n \n7 \n \n However, the Claimant agreed that the terms of his employment changed to seven days on \nand seven offs, which meant he worked seven 12-hour shifts and then he had seven days off.  The \nClaimant sustained a second injury on June 9, 2022.  His most recent injury was to his right knee.   \nAt  the  time  of  his  injury,  the  Claimant  testified  that  he  had  just  come  back  to  work  the \nseven on shift.  He had been on the seven offs.  However, at that point, the Claimant had come \nback, they were changing to the six (6) and two (2) again, but the seven (7) is what he was working \non June 9, the date of his injury.  The Claimant admitted he worked light duty for a period of time \nafter that, but he has been taken off of work on September 22.  He agreed that he has been off work \nsince  that  time  and  the  Respondents  have  been  paying  him  temporary  total  disability  benefits \nbeginning on September 23, 2022. \nThe Claimant agreed that they initially paid him two weeks of temporary total disability \nbenefits at the maximum rate of $790.00.  However, the Claimant’s next check, which was for the \nperiod of October 7, through October 20, the Respondents paid the Claimant only $1,296.00 and \ntold him it was their position that they had been  overpaying him.  Therefore,  they deducted the \noverpayment and took a credit, and his next check was for $1,438.00.  Since that time, they have \nbeen paying the Claimant at this rate, every two weeks, which amounts to $719.00 per week.     \nHe explained: \nQ And then after that, after your right knee injury on June 9, 2022, you continued to \nwork light duty up until September 22\nnd? \nA Yes, that’s correct. \nQ And you been off since? \nA Yes. \n\nRussell- H206746 \n \n8 \n \nQ Okay, when you went to work for Performance, did you get paid the first week that \nyou worked there? \nA Yes.   \nThe Claimant was questioned about the Employer’s Wage Records of evidence.  He agreed \nthese records purportedly show his wages from June 4, 2022, through June 6, 2021.  (Rx.  3)  The \nClaimant confirmed that payments from May 29 through June 4; would have actually been for the \nwork  done  for  the  week  of  May  22  through  May  28.    He  agreed  that  in  these  records  there  is \nnothing showing that he was paid for the week of June 5\nth\n.  Therefore, the Claimant maintained \nthat there are two (2) weeks of wages missing from this document with respect to the wages he \nearned before his injury. \nOn  cross-examination,  the  Claimant  confirmed  that  prior  to  his  current  injury,  he  was \nmaking $23.00 an hour.  The Claimant admitted that upon his release, he was on light duty, which \nrestricted him from climbing stairs, ladders, and things of that nature.  Therefore, they offered him \nthree jobs within his restrictions.  The Respondents’ counsel asked the Claimant why his job was \nchanged  to  $20.00  an  hour.    His  reply  was: “I have no idea.  They offered me ...... When the \ndoctor released me, they said they had three positions open for me, and I could take one of those \nthree or go home and all three were upstairs.” \nThe Claimant admitted that he signed a new contract in May 2022.  He confirmed that his \ncontract of hire was offered into the record by the Respondents.  The Claimant specifically agreed \nthat the contract of hire in force at the time of his injury was for $20.00 an hour.  He confirmed \nthat he is currently on restrictions and is drawing temporary total disability.   \n\nRussell- H206746 \n \n9 \n \nRegarding  his  pay,  the  Claimant  admitted  that  he  gets  paid  straight  time  for  40  hours.  \nAnything over 40 hours per week, the Claimant gets paid $30.00 an hour.  The Claimant agreed \nthat per the Respondents’ exhibit, the year prior to his injury, he made $51,000.00.      \nWith respect to his earnings for 2022, the Claimant confirmed that the $6,594.00 is for his \nwife’s earnings, but he did not recall.  He denied having a business.  The Claimant admitted that \nhe knew he was making three dollars less on the new contract.   \nOn  redirect-examination,  the  Claimant  confirmed  that  when  he  went  back  to  work \nfollowing his left knee injury, they offered him the new position in May 2022, as a dredge operator.  \nPer the terms of the contract, based on the Respondents’ exhibit, the Claimant worked 12 hours \nper day, six days a week.  He agreed that when he worked over 40 hours, he got time and a half, \nwhich amounted to $30.00 an hour.   \nHe agreed that he was under a new contract of hire at the rate of $20.00 an hour, with 12 \nhours per shift six days a week, then he was off for a week, and then he started seven on and seven \noff.    The  Claimant  confirmed  that  he  was  off  for  a  week  and  then  he  worked  a  week  and  was \ninjured.       \nOn recross examination, the Claimant agreed that the 52 weeks of wages prior to his injury \nincludes his overtime pay as well as his regular pay.  He agreed the year prior to his injury, he was \nmaking $23.00 an hour.  The Claimant was released from the first injury on April 22, 2022. \nMs. Cason Wilkinson \n Ms.  Wilkinson  confirmed  she  is  employed at  Performance  Proppants.    She  has  worked \nthere for a little over four years.  She is the HR manager and oversees various things pertaining to \npayroll  and  the  assignment  of  jobs  and  things  of that  nature.  Ms.  Wilkinson  confirmed  that  she \n\nRussell- H206746 \n \n10 \n \nworked there in 2022 and 2023.  She also confirmed that she is familiar with the Claimant’s two \ninjuries.  She agreed the Claimant’s first injury is not an issue.     \n She verified that when the Claimant came back to work from his first injury, he had some \nrestrictions.    Per  Ms.  Wilkinson,  the  restrictions  placed  on  the  Claimant  after  his  first  injury \ninvolved  limited  climbing  of  stairs  and  ladders.    She  confirmed  that  she  worked  with  the  plant \nmanager to find a position for the Claimant within his restrictions.  Ms. Wilkinson testified that \nthey came up with three positions and the Claimant chose the one he preferred.  \n Ms. Wilkinson confirmed that although employees have a set schedule, it can be changed \nor altered at any time.  She explained: \n Q It appears that none of his checks are the same amount.  Is there a reason for that? \n A Because hours can vary.  They could get called in, they could get called off. \n She confirmed that employees work a lot of overtime hours depending on their position.     \n  Ms. Wilkinson agreed that when Respondents’ counsel asked for the payroll records preceding \nthe date of the Claimant’s second injury, she sent counsel those records retrieved from the records \nshe  keeps  at  the  plant.    She  agreed  those  payroll  records  are  kept  in  their  payroll  system.    Ms. \nWilkinson denied that employees are not paid for the first week of their work with the company.  \nInstead,  employees  get  paid  from  the  day  they  start,  and  for  every  payroll  they  get  paid  for  the \nhours worked in that payroll period.  She testified employees are not paid on a biweekly basis.       \n  Ms. Wilkinson confirmed that she called the company to get information concerning the \nmissing week of June 5 through June 9, 2022.  She calculated the Claimant’s regular hours based \non the rate of $20.00 an hour, and his overtime rate of pay was $30.00 an hour.  Ms. Wilkinson \nagreed  that  she calculated the Claimant’s pay for the  week  of  June  9,  2022,  and  it  came  to \n$1,209.50.   \n\nRussell- H206746 \n \n11 \n \n On  cross-examination,  she  confirmed  that  employees  are  paid  on  a  weekly  basis.    She \nconfirmed that the days of pay were for June 5, 6, 7, 8 and 9.  Ms. Wilkinson confirmed that what \nthey offered was for the Claimant to be paid at the rate of $20.00 an hour, 12 hours per day, six \ndays per week.  She admitted that from his first injury, he was on light duty for the most part.  Ms. \nWilkinson did not have any reason to dispute the Claimant’s testimony of there being a seven and \nseven.  She agreed that the shifts schedules change from time to time. \n                    Adjudication \nAverage Weekly Wage    \nArkansas Code Annotated section 11-9-518 provides: \n(a)(1)  Compensation  shall  be  computed  on  the  average  weekly  wage  earned  by  the \nemployee under the contract of hire in force at the time of the accident and in no case shall \nbe computed on less than a full-time workweek in the employment. \n(2) Where the injured employee was working on a piece basis, the average weekly wage \nshall  be  determined  by  dividing  the  earnings  of  the  employee  by  the  number  of  hours \nrequired to earn the wages during the period not to exceed fifty-two (52) weeks preceding \nthe week in which the accident occurred and by multiplying this hourly wage by the number \nof hours in a full-time workweek in the employment. \n(b) Overtime earnings are to be added to the regular weekly wages and shall be computed \nby dividing the overtime earnings by the number of weeks worked by the employee in the \nsame employment under the contract of hire in force at the time of the accident, not exceed \na period of fifty-two (52) weeks preceding the accident. \n(c)  If, because of exceptional circumstances, the average weekly wage cannot be fairly \nand justly determined by the above formulas, the commission may determine the average \nweekly wage by a method that is just and fair to all parties concerned. \n \nThe Claimant had an earlier injury to his left knee in August 2020.   He was released from \nmedical care of his left knee with permanent restrictions of limited climbing of stairs and ladders.  \nAs a result, the company offered the Claimant three options of suitable jobs within his restrictions.  \nSaid  job  options  included  that  of  a  dry  plant  operator  ($18/hr.);  loadout  operator  ($17/hr.);  and \ndredge operator ($20/hr.).    \n\nRussell- H206746 \n \n12 \n \nUpon the Claimant’s release  to  return  to  work  following  his  August  2020  injury,  the \nClaimant decided to take the position of dredge operator.  The Claimant began working under this \nnew contract of hire as a dredge operator on May 23, 2022.  However, the Claimant sustained an \ninjury to his right knee on June 9, 2022.  At that juncture, the Claimant had been working under \nhis new contract of hire as a dredge operator for only eighteen (18) days.   \nCurrently, at issue is the Claimant’s correct average weekly wage at the time of his June 9, \n2022, accidental right knee injury.   A copy of the Claimant’s contract of hire in force at the time \nof his June 2022 accidental injury has been made a part of the record.  (Rx 1 at 2)    \nThe parties agree that the Claimant’s contract of hire in force at the time of his June 2022 \ninjury was for forty hours per week at the rate of $20.00 an hour.  The Claimant’s regular weekly \nwages  amounted  to  $800.00.  The  contract  of  hire  does  not  specify  that  the  Claimant  was \nguaranteed  a  set  number  of  overtime  hours.    It  simply  states  that  the  Claimant  is  eligible  for \novertime  pay.    I  found  that  Ms.  Wilkinson  was  credible  in  stating  that  the  Claimant  was  not \nguaranteed a specific number of overtime hours each week.  Her testimony is corroborated by the \nClaimant’s pay for the three weeks he worked and the contract of hire, which does not specify a \nset  number  of  overtime  hours  each  week.    Nevertheless,  both  parties  agree  that  the  Claimant \novertime rate of pay was $30.00 an hour.    \nAt  dispute  is  the  proper calculation  of  the  Claimant’s  overtime  pay.   Both  parties’ \ncontentions are discussed above and in their Post-Hearing Briefs.  However, I respectfully disagree \nwith both parties’ calculations.    \nIn that regard, the most relevant law for guidance reads: \n(b) Overtime earnings are to be added to the regular weekly wages and shall be computed \nby dividing the overtime earnings by the number of weeks worked by the employee in the \nsame employment under the contract of hire in force at the time of the accident, not exceed \na period of fifty-two (52) weeks preceding the accident. \n\nRussell- H206746 \n \n13 \n \nMy  review  of  the  evidence  of  records  that  the  Claimant  worked  approximately  three \nweeks before his June 2022 injury to his right knee.  The Claimant began his new contract of hire \non  May  23,  2022.    Payroll  records  show  that  from  May  22,  2022  through  May  28,  2022,  the \nClaimant earned $1,016.66 (overtime earnings $216.66).  For the week of May 29, 2022 through \nJune 4, 2022 the Claimant’s wages totaled $1,049.05 (overtime pay $249.05).  Ms. Wilkinson \ntestified that for the week of June 5 through June 9, 2022, the Claimant made $1,209.50 (overtime \npay $409.50).  The Claimant’s total overtime earnings for the three weeks he worked under his \ncontract of hire in force at the time of his accident  equals total overtime earnings of  $875.21, \nwhich  is    divided  by  the  three  weeks  worked  for  a  total  overtime  rate  of  $291.74;  therefore, \n$291,74 plus $800.00 equals an average weekly wage of $1,091.74.  His compensation rates are \n$728.00 and $546.00.  This means the Respondents have been underpaying the Claimant for his \nweekly indemnity benefits since they have been paying him at a rate of $719.00.      \nTherefore, I must find that the Claimant proved by a preponderance of the evidence he is \nentitled to an award for an underpayment of indemnity benefits.  Hence, the Claimant is entitled \nto the underpayment and attorney’s fees for the past benefits and additional benefits going \nforward.   \nOf note, I realize that the Claimant’s earnings for May 22, 2022 is pursuant to his previous \ncontract of hire.  However, I am persuaded that including this one day in the Claimant’s earnings \nfor that week is just and fair to all parties concerned.  \n                 AWARD \n The Respondents are directed to pay benefits in accordance with the findings set forth  \n \n\nRussell- H206746 \n \n14 \n \nherein.  \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          Hon. Chandra L. Black \n                 Administrative Law Judge","textLength":26019,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H206746 JEREMY C. RUSSELL, EMPLOYEE CLAIMANT PERFORMANCE PROPPANTS, LLC, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY, INS. CO./ SUMMIIT CONSULTING, LLC, INSURANCE CARRIER/THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FILED JUNE 9, 2023 Hearing held befor...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T23:06:13.039Z"},{"id":"alj-H203365-2023-06-08","awccNumber":"H203365","decisionDate":"2023-06-08","decisionYear":2023,"opinionType":"alj","claimantName":"Shaniqua Briscoe","employerName":"Employee Solutions, LLC","title":"BRISCOE VS. EMPLOYEE SOLUTIONS, LLC AWCC# H203365 JUNE 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Briscoe_Shaniqua_H203365_20230608.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Briscoe_Shaniqua_H203365_20230608.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203365 \n \n \nSHANIQUA BRISCOE, EMPLOYEE CLAIMANT \n \nEMPLOYEE SOLUTIONS, LLC, \n EMPLOYER RESPONDENT \n \nZURICH AMERICAN INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JUNE 8, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on May 19, 2023, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Rick  Behring,  Jr.,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  May  19,  2023,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nWithout  objection,  the  Commission’s  file  on  the  claim  has  been  incorporated \nherein  in  its  entirety  by  reference.    In  addition,  Respondents’  Exhibit  1, forms, \npleadings  and  correspondence  related  to  the  claim,  consisting  of  29 numbered \npages, was admitted into evidence. \n\nBRISCOE – H203365 \n2 \n \n The record reflects the following procedural history: \n The  First  Report  of  Injury  or  Illness  filed  on  May  4,  2033,  reflects  that \nClaimant  purportedly  injured  her  hands  at  work  on  December  7,  2021.    Per  the \nForm  AR-2  filed  on  May  5,  2022,  Respondents  controverted  the  claim  in  its \nentirety.  Claimant filed a Form AR-C on May 11, 2022.  Therein, she changed the \nalleged  date  of  injury  to  February  18,  2022,  and  asserted  that  on  that  date,  her \n“hand  got  infected  from  the  soap  at  the  work  site  .  .  .  .”  On  May  23,  2022, \nRespondents  wrote  the  Commission,  reiterating  that  they  had  denied  the  claim.  \nRespondents’  counsel  entered  an  appearance  on  August  23,  2022.  Claimant \nrequested a hearing on August 30, 2022.  Her letter to the Commission reads: \nI Shaniqua Briscoe \nWould like to appeal my worker comp denial. \n \n/s/ Shaniqua Briscoe \n \n#203365 \n \n The matter was assigned to the Legal Advisor Division on August 31, 2022.  \nBut  due  to  the  lack  of  success  in  setting  up  a  legal  advisor  conference  and/or  a \nmediation  conference,  the  file  was  assigned  to  me  on  October  14,  2022.  \nPrehearing  questionnaires  were  issued  to  the  parties  on  October  18,  2022.  \nRespondents’  counsel  notified  my  office  on  October  24,  2022,  that  both  sides \nwere  willing  to  mediate  the  matter.    For  that  reason,  the  file  was  returned  to  the \nClerk  of  the  Commission  for  reassignment  to  the  Legal  Advisor  Division  so  that \nthe mediation could be conducted.  The mediation conference was scheduled for \n\nBRISCOE – H203365 \n3 \n \nJanuary  12,  2023.    However,  at  the  appointed  date  and  time,  Claimant  failed  to \nappear.  The evidence also shows that she failed to respond to discovery that had \nbeen propounded to her. \n The  record  reflects  that  no  further  activity  occurred  on  the  claim  until \nFebruary  3,  2023,  when  Respondents  filed  the  instant  motion,  moving  for \ndismissal of it under AWCC R. 099.13 and Ark. Code Ann. § 11-9-702(a)(4) (Repl. \n2012).  On February 15, 2023, my office wrote Claimant, asking for a response to \nthe motion within 20 days.  The letter was sent by first-class and certified mail to \nthe address listed for her in the file and matching that on her Form AR-C.  It was \nalso  sent  to  an  email  address  that  Claimant  had  furnished  to  the  Commission.  \nThe United States Postal Service was unable to verify whether Claimant claimed \nthe  certified  letter;  but  the  first-class  letter  was  not  returned  to  the  Commission.  \nRegardless,  no  response  from  her  was  forthcoming.    On  March  24,  2023,  I \nscheduled a hearing on Respondents’ motion for May 19, 2023, at 10:30 a.m. at \nthe  Craighead  County  Courthouse  in  Jonesboro.    Notice  of  this  was  sent  to \nClaimant  (as  well  as  Respondents)  by  certified  and  first-class  mail  at  the  same \naddress  as  before.    In  this  instance,  the  certified  letter  was  returned  to  the \nCommission.    But  the  first-class  letter  to  her  was  never  returned.    Thus,  the \nevidence preponderates that she received the notice. \n The hearing on the Motion to Dismiss proceeded as scheduled on May 19, \n2023.    Again,  Claimant  failed  to  appear  at  the  hearing.    But  Respondents \n\nBRISCOE – H203365 \n4 \n \nappeared  through  counsel  and  argued  for  dismissal  under  the  aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  Findings  of  Fact  and \nConclusions of Law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission has  jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the  motion  to \ndismiss and of the hearing thereon. \n3. Claimant has failed to prosecute her claim. \n4. Dismissal of this claim is thus warranted under AWCC R. 099.13. \n5. The  application  of  Ark.  Code  Ann.  §  11-9-702(a)(4)  (Repl.  2012)  is \nmoot and will not be addressed. \n6. The claim is hereby dismissed without prejudice. \nIII.  DISCUSSION \n Arkansas  Code  Annotated  §  11-9-702(a)(4)  (Repl.  2012)  provides  as \nfollows: \nIf within six (6) months after the filing of a claim for compensation no \nbona  fide  request  for  a  hearing  has  been  made  with  respect  to  the \nclaim,  the  claim  may,  upon  motion  and  after  hearing,  be  dismissed \nwithout  prejudice  to  the  refiling  of  the  claim within  limitation  periods \nspecified in subdivisions (a)(1)-(3) of this section. \n\nBRISCOE – H203365 \n5 \n \n \nIn turn, AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nclaim–by  a  preponderance  of  the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because  she has taken no further action \nin pursuit of it (including appearing at the May 19, 2023, hearing to argue against \nits dismissal) since she made her hearing request on August 30, 2022.  Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.    Because  of \nthis  finding,  the  application  of  Ark.  Code  Ann.  §  11-9-702(a)(4)  (Repl.  2012)  is \nmoot and will not be addressed. \n\nBRISCOE – H203365 \n6 \n \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).  At  the  hearing,  Respondents  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities,  I  agree  and  find  that the \ndismissal of this claim should be and hereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":8902,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H203365 SHANIQUA BRISCOE, EMPLOYEE CLAIMANT EMPLOYEE SOLUTIONS, LLC, EMPLOYER RESPONDENT ZURICH AMERICAN INS. CO., CARRIER RESPONDENT OPINION FILED JUNE 8, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 19, 2023, in Jonesboro, Cra...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:06:08.913Z"},{"id":"alj-H207171-2023-06-08","awccNumber":"H207171","decisionDate":"2023-06-08","decisionYear":2023,"opinionType":"alj","claimantName":"Rodriquez Williams","employerName":"Yena Corp","title":"WILLIAMS VS. YENA CORP. AWCC# H207171 JUNE 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILLIAMS_RODRIQUEZ_H207171_20230608.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILLIAMS_RODRIQUEZ_H207171_20230608.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207171 \n \nRODRIQUEZ X. WILLIAMS,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nYENA CORP.,  \nEMPLOYER                                                                                                         RESPONDENT \n \nCLEAR SPRINGS PROPERTY & CAS. CO., INC./ \nCCMSI \nCARRIER/TPA                                                                                                    RESPONDENT                                  \n                                                                                                                     \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED JUNE 8, 2023 \n \nHearing conducted on Wednesday, June 7, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant is represented by the Honorable Laura Beth York, Rainwater, Holt & Sexton, Little \nRock, Pulaski County, Arkansas, who waived appearance at the hearing. \n \nThe respondents were represented by the Honorable Melissa Wood, Worley, Wood & Parrish, \nP.A., Little Rock, Pulaski County, Arkansas.  \n \n \nSTATEMENT OF THE CASE \n \n     A hearing was conducted on Wednesday, June 7, 2023, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark.  Code  Ann.  §  11-9-702(a)(4)  (2023  Lexis \nReplacement) and Commission Rule 099.13 (2023 Lexis Replacement). \n     The  respondents  accepted  this  claim  as  compensable  and  have  to  date  paid  all  appropriate \nmedical and indemnity benefits. On both April 6, 2023, and May 5, 2023, the respondents filed \nmotions to dismiss with the Commission alleging the claimant has to date failed and/or refused to \nprosecute this claim, and that he has not requested a hearing in the last six (6) months.  \n\nRodriquez X. Waller, AWCC No. H207171 \n2 \n \n     Thereafter,  the  claimant  and  his  attorney  were  provided  due  and  legal  notice  of  both  the \nrespondents’ motions to dismiss, as well as a copy of the hearing notice for the subject hearing. \nSince the respondents have to date paid all appropriate medical and indemnity benefits and there \ncurrently  exist  no  outstanding  issues  that  necessitate  a  hearing,  the  claimant’s  attorney  did  not \nobject to the respondents’ motions, and waived appearance at the subject hearing. \n     The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto, as well as the Commission’s entire file in this claim. \nDISCUSSION \n     Consistent  with Ark.  Code  Ann.§  11-9-702(a)(4)  (2023  Lexis  Replacement),  as  well  as  our \ncourt  of  appeals’  ruling  in Dillard  vs.  Benton  County  Sheriff’s  Office,  87  Ark.  App.  379,  192 \nS.W.3d  287  (Ark.  App.  2004),  the  Commission  scheduled  and  conducted  a  hearing  on  the \nrespondents’ motion to dismiss. Rather than recite a detailed analysis of the record, suffice it to \nsay  the  preponderance  of  the  evidence  introduced  at  the  hearing  and  contained  in  the  record \nconclusively reveals the claimant has failed and/or refused to prosecute his claim at this time. \n     Therefore, after a thorough consideration of the facts, issues, the applicable law, representations \nof counsel, and other relevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed due and legal notice of both the respondents April 6, 2023, and \nMay 5, 2023, motions to dismiss without prejudice, as well as notice of the date, time, and \nplace  of  the  subject  hearing,  the  claimant’s  attorney  did  not  object  to  the  motions,  and \nwaived appearance at the subject hearing. \n \n3. Therefore,  I  find  the respondents’ aforementioned motions  to  dismiss  without  prejudice \nfiled April 6, 2023, and May 5, 2023, respectively, should be and hereby are GRANTED; \nand this claim hereby is dismissed without prejudice to its refiling pursuant to the deadlines \nprescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and Commission Rule 099.13. \n\nRodriquez X. Waller, AWCC No. H207171 \n3 \n \n \n     This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n     If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n     IT IS SO ORDERED. \n                                                            \n____________________________                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n\nRodriquez X. Waller, AWCC No. H207171 \n4 \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5356,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207171 RODRIQUEZ X. WILLIAMS, EMPLOYEE CLAIMANT YENA CORP., EMPLOYER RESPONDENT CLEAR SPRINGS PROPERTY & CAS. CO., INC./ CCMSI CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED JUNE 8, 2023","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:06:10.974Z"},{"id":"full_commission-H201552-2023-06-07","awccNumber":"H201552","decisionDate":"2023-06-07","decisionYear":2023,"opinionType":"full_commission","claimantName":"Charles Leach","employerName":"O.A.K. Construction, Inc","title":"LEACH VS. O.A.K. CONSTRUCTION, INC. AWCC# H201552 JUNE 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Leach_Charles_H201552_20230607.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Leach_Charles_H201552_20230607.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H201552 \n \n \nCHARLES LEACH, EMPLOYEE                                   CLAIMANT    \n \nO.A.K. CONSTRUCTION, INC., EMPLOYER                      RESPONDENT\n      \nLIBERTY MUTUAL GROUP, CARRIER                     RESPONDENT\n    \n \nOPINION FILED JUNE 7, 2023 \n \nUpon review before the Full Commission, Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE JARID M. KINDER, Attorney at \nLaw, Fayetteville, Arkansas.   \n \nRespondents No. 1 represented by the HONORABLE ZACHARY F. \nRYBURN, Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Reversed. \n \n \nOPINION AND ORDER \n  \nRespondents appeal the Opinion filed December 8, 2022 by the \nadministrative law judge (“ALJ”) finding, among other things, the following: \n1.  Claimant has proven by a preponderance of the evidence that \nhe was an employee of Tom Leach, an uninsured \nsubcontractor of respondent OAK Construction, Inc. As such, \nrespondent is responsible for payment of workers’ \ncompensation benefits. \n2.  Claimant has proven by a preponderance of the evidence that \nhe suffered a compensable injury on March 24, 2020, and that \nhe is entitled to medical benefits for said injury. \n\nLEACH – H201552                  2 \n \n \nFor the reasons set out below, the ALJ’s Opinion filed December 8, \n2022 is reversed.   \nI. HISTORY \nThe testimony in this matter was provided in large part by two \ninterested parties, Oliver Kiesel and Robert Thomas Leach (Tom), the \nclaimant’s brother. Due to the nature of the claimant’s injuries, he was \nunable to provide coherent testimony and as such we are left to rely on the \ntestimony of other individuals. Due to the shared last name of Charles and \nTom Leach, we will be referring to Tom Leach as simply “Tom,” throughout \nthis opinion. \nOliver Kiesel is the owner-operator of OAK Construction, Inc. (OAK). \nOAK contracted with Robert Thomas Leach (Tom) to complete the framing \nof a residential home in Gravette, Arkansas in 2020. OAK had worked with \nTom on smaller jobs before subcontracting with him for the house in \nGravette. OAK is in the business of building custom residential homes and \nMr. Kiesel testified that “basically everybody that works for OAK” is a \nsubcontractor. While there was conflicting testimony about whether Tom \npresented proof of workers’ compensation coverage to OAK, OAK did not \npresent any records of those documents at the September 29, 2022 \nhearing. \nTom Leach is a partner in the business Leach Framing, which he \ntestified has been in operation for approximately 20 years. Leach Framing, \n\nLEACH – H201552                  3 \n \n \nmade up of Robert Leach, Charles Leach, and John House obtained a \nworkers’ compensation policy from Liberty Mutual on April 10, 2019 with a \npolicy period from April 3, 2019 to April 3, 2020. The named insured was \nRobert Leach & Charles Leach and John House DBA Leach Framing. Tom \ntestified that Ms. Tish Botson went to Professional Insurance Group (PIG) in \nBentonville and obtained the policy on Leach Framing’s behalf when the \ncompany owned by her husband, Mike Botson, required that a policy be in \nplace for a job. The Liberty Mutual policy specifically excluded the named \npartners, Tom Leach, Charles Leach, and John House, from coverage. The \npartners excluded themselves from the policy to save money. \nDuring his testimony, Tom Leach referred to himself and the claimant \nas “we” regarding business decision making, demonstrating that the two \nmade decisions jointly, explaining at one point that, “[W]e do all kinds of \nthings. We side houses. We frame houses. We build decks. I mean we \nbuild fence (sic).” Tom later testified he understood the workers’ \ncompensation policy at issue “doesn’t cover anything for us anyway. It only \ncovers our employees or people working for us.” \n  Tom Leach, Charles Leach, and John House were working together \nat the home in Gravette. Tom would submit an invoice on a weekly basis to \nOAK reflecting the square footage that he, Charles Leach, and John house \nhad framed. Leach Framing did not have a bank account, so OAK made out \nchecks to Tom personally, and Tom would divide the money. Tom and the \n\nLEACH – H201552                  4 \n \n \nclaimant made more than any employee. No benefits or taxes were taken \nout of this pay. Leach Framing was made up of the three parties present at \nthe house in Gravette during the time of the claimant’s injury:    Tom Leach, \nCharles Leach, and John House. \n In an opinion filed December 8, 2022, the ALJ determined that the \nclaimant was an employee of an uninsured subcontractor, Tom Leach. The \nALJ was incorrect in this finding. If the claimant was an employee of Leach \nFraming, he was covered by the Liberty Mutual policy in effect at the time of \nthe accident. However, the preponderance of the evidence presented \nshows the claimant was a partner in Leach Framing and was excluded from \ncoverage. Under either scenario, the claimant was not an employee of an \nuninsured subcontractor and OAK is not responsible for any benefits since \nOAK did not contract with an insured subcontractor. \nII. ADJUDICATION \nThe threshold question is whether the claimant was a partner in \nLeach Framing and therefore covered by the Liberty Mutual policy. This \nquestion falls outside the scope of the Act and the legal fact that the \nclaimant was a partner in Leach Framing was not investigated by the ALJ in \nhis December 8, 2022 opinion. The existence of Leach Framing and who, \nor what, the Liberty Mutual policy covered in March 2020 is the key to this \ncase, as pursuant to our Rules, “[w]hen a sole proprietorship or partnership \nfails to elect to cover the sole proprietor or partners under [the Code], the \n\nLEACH – H201552                  5 \n \n \nprime contractor is not liable under this chapter for injuries sustained by the \nsole proprietor or partners if the sole proprietor or partners are not \nemployees of the prime contractor.” Ark. Code Ann. § 11-9-402(c)(1)(A). \nThere was no proof presented at the hearing that the claimant was an \nemployee of OAK.   \nLeach Framing was acting as a subcontractor for OAK on March 24, \n2020 whether or not the parties were operating under the name. Although \nwhat we call a partnership may not always be defined with exact precision, \nthe test for determining the existence of a partnership is well established. \n“The association of two (2) or more persons to carry on as co-owners a \nbusiness for profit forms a partnership, whether or not the persons intend to \nform a partnership.” Ark. Code Ann. § 4-46-202. The business association \nthat is known as a partnership is not one that can be defined with precision. \nTo the contrary, a partnership is a contractual relationship that may vary, in \nform and substance, in an almost infinite variety of ways. Zajac v. Harris, \n241 Ark. 737, 410 S.W.2d 593 (1967). “[E]xcept in certain specific instances \na partnership is not an entity separate and apart from its members and \nremains no more than the aggregate of the individuals forming it.” Pate v. \nMartin, 13 Ark. App. 182, 681 S.W.2d 410 (1985).   \nIt is clear from the record that the claimant, Tom Leach, and John \nHouse formed the partnership Leach Framing and operated under the \nname Leach Framing off and on for a period of twenty (20) years. Even \n\nLEACH – H201552                  6 \n \n \nwhen they were not using the name Leach Framing they were acting as a \npartnership, because a partnership is no more than the sum of its individual \nmembers. The three members of Leach Framing worked together on jobs \nand shared the income. Although checks were made out by OAK to Tom \nLeach individually, Tom would cash those checks and pay his partners and \nany employees based on their hourly rate, and Tom Leach did not retain \nany portion of those checks beyond his hourly earnings. Tom and Charles \nearned more than anyone else and only one other person earned as much \nas John House. \nTom Leach made it clear that he considered his business with the \nclaimant to be a partnership. Tom Leach repeatedly referred to himself and \nthe claimant as “we” regarding business decision making throughout his \ntestimony and, acknowledged at the hearing that he understood that the \nLiberty Mutual Policy did not cover Tom Leach, Charles Leach, or John \nHouse showing a full understanding that they were owners and partners in \nLeach Framing. He went so far as to state that the workers’ compensation \npolicy at issue “doesn’t cover anything on us anyway.  It only covers our \nemployees or people working for us.” These parties held out Leach Framing \nas a partnership in obtaining a workers’ compensation policy and named \nRobert Leach, Charles Leach, and John House as the partners of Leach \nFraming and specifically excluded themselves from coverage.   \n\nLEACH – H201552                  7 \n \n \nFinally, the clearest indicator that the claimant was a partner of \nLeach Framing and that Leach Framing was operating as an insured \nsubcontractor on March 24, 2020 is the existence of the Liberty Mutual \nworkers’ compensation policy itself. Although Tom asserts that Tish Botson \nwent to Professional Insurance Group (“PIG”) in Bentonville and had the \npolicy “wrote up the way that it is written up,” this defies reason. Tom Leach \nis an interested party and it is the within the sole discretion of the \nCommission to determine the credibility of a witness’ testimony; however, \n\"[w]here there are contradictions in the evidence, it is within the \nCommission's province to reconcile conflicting evidence and to determine \nthe true facts.\" Templeton v. Dollar General Store, 2014 Ark. App. 248, 434 \nS.W.3d 417 (2014). Testimony of an interested party is taken as disputed \nas a matter of law. Ester v. National Home Ctrs. Inc., 335 Ark. 356, 981 \nS.W.2d 91 (1998); Flynn v. J. B. Hunt Transp., 2012 Ark. App. 111, 389 \nS.W.3d 67 (2012) (\"[T]he uncorroborated testimony of an interested party is \nnever to be considered uncontradicted.\"). The Commission is not required \nto believe the testimony of the claimant or any other witness but may accept \nand translate into findings of fact only those portions of the testimony that it \ndeems worthy of belief. Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, 250 \nS.W.3d 263 (2007). It does not stand to reason that a person or entity could \nsend a third party to an insurance agent to enter into a contract on their \nbehalf with little to no information about the insured. Tom’s testimony on \n\nLEACH – H201552                  8 \n \n \nthis point is entirely self-serving. It is obvious that if Ms. Botson did in fact \nobtain coverage on Leach Framing’s behalf, Tom advised Ms. Botson that \nhe was a partner in Leach Framing along with Charles Leach and John \nHouse and agreed the three partners would be excluded from coverage. He \nadmitted this was done to save money. There is no way Ms. Botson came \nup with this information on her own, it could only have been supplied to her \nby Tom Leach. \nEven if PIG were willing to insure Leach Framing on the word of Tish \nBotson alone, Leach Framing was bound to Ms. Botson’s actions, as “our \nsupreme court has declared on a number of occasions that a principal is \nbound not only by the acts of an agent done under the principal's express \nauthority, but also by those acts of a general agent which are within the \napparent scope of his authority, whether they have been authorized or not, \nand even if they are contrary to express direction. The principal in such a \ncase is not only bound by the authority actually given to the general agent, \nbut by the authority which the third person dealing with him has the right to \nbelieve has been given to him.” Landmark Sav. Bank, F.S.B. v. Weaver-\nBailey Contractors, Inc., 22 Ark. App. 258, 739 S.W.2d 166 (1987) (citing \nSouthern Electrical Corp. v. Ashley-Chicot Electric Co-op, Inc., 220 Ark. \n940, 251 S.W.2d 813 (1952)). “A partner's knowledge, notice, or receipt of a \nnotification of a fact relating to the partnership is effective immediately as \nknowledge by, notice to, or receipt of a notification by the partnership, \n\nLEACH – H201552                  9 \n \n \nexcept in the case of a fraud on the partnership committed by or with the \nconsent of that partner.” Ark. Code Ann. § 4-46-102. If Tom’s testimony is to \nbe believed, Ms. Botson was granted the express authority to obtain \nworkers’ compensation coverage for Leach Framing and Leach Framing is \ntherefore bound by her actions. \nAll of this boils down to a simple conclusion under our laws. Charles \nLeach, Tom Leach, and John House over a period of approximately twenty \n(20) years held themselves out as a partnership known as Leach Framing.   \nBecause a partnership is no more than a sum of its individuals, Charles \nLeach, Tom Leach, and John House in fact formed Leach Framing whether \nthey operated under the name at a given time or not. For this reason, Leach \nFraming was the subcontractor for OAK at the house in Gravette on March \n24, 2020. Because Leach Framing, a partnership, was insured by the \nLiberty Mutual policy on that date, OAK is not responsible for any benefits \nfor injuries sustained by the claimant pursuant to Ark. Code Ann. § 11-9-\n402(c)(1)(A).   \nEven if we were to construe that the claimant was in fact an \nemployee of Leach Framing rather than a partner, it has been clearly \nestablished, supra, that Leach Framing is an existing partnership with an \nactive workers’ compensation policy on March 24, 2020 and the claimant \nwould be covered by the Liberty Mutual policy. As a result, the claimant was \nnot employed by an uninsured subcontractor. \n\nLEACH – H201552                  10 \n \n \nFinally, the claimant was not an employee of OAK at the time of his \ninjury and OAK is not responsible for the payment of his claim. There was \nabsolutely no proof presented to support this allegation. \nSimply put, the owner-operator of OAK, Oliver Kiesel, did not hire the \nclaimant and did not know the claimant. Oliver Kiesel hired a subcontractor, \nof which the claimant was either a partner or employee, that was insured for \nworkers’ compensation by Liberty Mutual on the date of this accident. So \nthe claimant was either excluded from coverage as a partner or covered as \nan employee under the Liberty Mutual Policy. Regardless, OAK is not \nresponsible for any benefits. \nIT IS SO ORDERED. \n \n \n    ____________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ____________________________________ \n    MICHAEL R. MAYTON, Commissioner   \n \n \n \nCommissioner Willhite dissents. \n \n \nDISSENTING OPINION \n After my de novo review of the record in this claim, I dissent from the \nmajority opinion finding that O.A.K. Construction, Inc. (hereinafter, referred \nto as, “O.A.K.”) is not responsible for the payment of benefits on this claim. \n\nLEACH – H201552                  11 \n \n \n  A. There was no true partnership between the \nclaimant, Tom Leach, and John House. \n “‘Partnership’ means an association of two (2) or more persons to \ncarry on as co-owners a business for profit formed under §4-46-202, \npredecessor law, or comparable law of another jurisdiction.”  Ark. Code \nAnn. §4-46-101(6).    A partnership is a voluntary contract between two or \nmore competent persons, to place their money, effects, labor, and skill, or \nsome of all of them, in a lawful commerce or business, with the \nunderstanding that there shall be a proportional sharing of the profits and \nlosses between them.   Bice v. Green, 64 Ark. App. 203, 981 S.W.2d 105 \n(1998) (citing Wymer v. Dedman, 233 Ark. 854, 350 S.W.2d 169 (1961)).   \nThe primary test to determine whether there is a partnership between \nparties is their actual intent to form and operate a partnership.   Id.    (citing \nBoeckmann v. Mitchell, 322 Ark. 198, 909 S.W.2d 308 (1995), and Culley v. \nEdwards, 44 Ark. 423 (1884)).    In determining whether the parties formed a \npartnership, the issue turns on what the parties have agreed to do, not on \nwhat they have agreed to call themselves.   Id.    (citing Central States Life \nIns. Co. v. Barrow, 190 Ark. 141, 77 S.W.2d 801 (1935)). \n The evidence preponderates that Leach Framing was not a true \npartnership but instead, was an affiliation conceived out of convenience for \nthe purpose of obtaining workers’ compensation insurance.  Tom Leach \n(hereinafter, referred to as, “Tom”) testified that Leach Framing “was just \n\nLEACH – H201552                  12 \n \n \nsomething we had to do so we would have insurance so we could work for \nanother individual”.  Tom explained that he, the claimant, John House, and \ntwo other individuals were doing a job for Mike Botson that required them to \nhave a workers’ compensation insurance policy.  When asked whether he \nheld himself out as a partner of Leach Framing, Tom testified, “... I did \nnothing.    I just agreed with a different builder so that I could keep working \nso that I could make a check”. \n Additionally, regarding how profits from the job with respondent-\nemployer were shared, Tom testified as follows: \nQ So how did you distribute that money that \n was paid to Tom Leach to other members \n of your crew? \n... \n \n[A] I would take it to his bank, cash the \n check.    I would divvy it up and pay \n everybody what they had coming. \n \nQ Tell me how you divvied it up. \n \nA In cash. \n \nQ And is there a certain method to this \n madness? \n \nA Uh-huh. \n \n THE COURT:  Is that a “yes”? \n THE WITNESS:    Yes, sir.    I am sorry, \nsir. \n THE COURT:   That’s okay. \n \nQ Okay.    Tell me how you divvied it up.   \nFor      example, you on Page 6 were wrote [sic] \n\nLEACH – H201552                  13 \n \n \n a 4,500-dollar check that we discussed \n earlier.    How did you divvy that up? \n \nA It was hourly. \n \nQ Each person’s hours? \n \nA Yes.  I don’t understand the question, sir. \n \nQ Did you divvy it up by a percentage?    Did \n you say out of this $4,500 I get a percent, \n Charles gets a percent, John gets a \n percent, and these other two employees \n get a percent? \n \nA No, sir. \n \nQ Okay.    How was it?    How was it divvied \n up? \n \nA I would cash a check.    I would do the \n math on how much they made per hour \n and then what it come out to, I paid them \n that much. \n \nQ Who made a – who was paid hourly? \n \nA Everybody. \n \nQ Yourself included? \n \nA Yes, sir. \n \nQ Did you make more than everyone else? \n \nA Yes, sir. \n \nQ Did you make more tha[n] Charles? \n \nA Yes, sir. \n \nQ Did Charles make more than everyone \n beside you? \n \n\nLEACH – H201552                  14 \n \n \nA Yes, probably.    Yes, in fact, he did. \n \nQ Did John make more than the other two \n employees that were not listed? \n \nA Actually, him and one other made the \n same.  \n \nQ And then the other one made less; is that \n correct? \n \nA Yes, sir. \n \n Clearly, there was not a proportional sharing of profits between the \nclaimant, Tom and John House.    Each individual was paid based on their \nrespective hourly wages and the number of hours that he worked, just as \nmost traditional employees are. \n Therefore, based on the aforementioned, I find that there was not a \ntrue partnership between the claimant, Tom Leach, and John House. \n B. The contract to frame the house on Bethel Road was \nbetween Tom Leach and O.A.K. \n The Arkansas Court of Appeals defined a subcontractor as follows: \nA subcontractor is one who enters into a \ncontract with a person for the performance of \nwork which another has already contracted to \nperform.    In other words, subcontracting is \nmerely ‘farming out’ to others all or part of work \ncontracted to be performed by the original \ncontractor. \n \nGarcia v. A&M Roofing, 89 Ark. App. 251, 202 S.W.3d 532 (2005) (quoting \nBaily v. Simmons, 6 Ark. App. 193, 639 S.W.2d 526 (1982)). \n\nLEACH – H201552                  15 \n \n \n Oliver Kiesel testified that he was a residential contractor who is the \nowner-operator of O.A.K. Construction, Inc.    Kiesel testified further that \nO.A.K. builds custom homes.    According to Kiesel, he entered into a verbal \nagreement with Tom to frame a house that O.A.K. was constructing on \nBethel Road in Gravette, Arkansas.    Kiesel admitted that when he hired the \nLeaches he only dealt with Tom; that he did not know Charles Leach; and \nthat he did not know about Leach Framing. \n In addition, it is clear from the testimony that Tom had the expertise \nand decision-making authority to enter into the contract and that the other \nlaborers working with Tom were employees.    This is evidenced by the fact \nthat it was Tom who received the payments from O.A.K., determined how \nmuch others were paid, and actually made those payments.     \n Therefore, I find that Leach Framing was not a party to the contract \nto frame the Bethel Road house and that the contract was between Tom \nLeach and O.A.K.    I also find that the workers’ compensation insurance \npolicy covering Leach Framing did not provide coverage for Tom on the job \nhe worked for O.A.K.; thus, Tom was an uninsured subcontractor of O.A.K. \n C. The claimant was an employee of Tom Leach. \n  Ark. Code Ann. §11-9-402 reads, in pertinent part: \n(a)    Where a subcontractor fails to secure \ncompensation required by this chapter, the \nprime contractor shall be liable for compensation \nto the employees of the subcontractor unless \nthere is an intermediate subcontractor who has \nworkers’ compensation coverage. \n\nLEACH – H201552                  16 \n \n \n \n The evidence also preponderates that the claimant was an employee \nof Tom.    Tom testified that he was a subcontractor of O.A.K. and was paid \nby check.    The four check stubs contained within the record were made \npayable to Tom Leach.    Tom testified further that he paid the claimant \nseparately from payments he received from O.A.K.         \n Tom admitted that at the time of the claimant’s work accident he did \nnot have an active certificate of non-coverage.    Tom also admitted that at \nthe time of the claimant’s work accident he did not have any workers’ \ncompensation insurance on himself as an individual nor did he have any \ninsurance that would cover the claimant. \n A copy of a Liberty Mutual workers’ compensation insurance policy \ninsuring “Robert Leach & Charles Leach and John House DBA Leach \nFraming” was contained within the record.  The policy specifically \nexcluded, the claimant, Tom and John House from coverage. \n Tom testified that he did not hold Leach Framing out to be the entity \ndoing the job at Bethel Road.    Regarding the entity, Leach Framing, Tom \ntestified as follows: \nQ Now, you listed that workers’ \n compensation insurance policy is I guess \n attributable to Robert Leach, Charles \n Leach and John House doing business as \n Leach Framing.    What is Leach \nFraming? \n \nA It’s just a business that we used in the \n past. \n\nLEACH – H201552                  17 \n \n \n \nQ And when you say a business that you \n used in the past, how long have you been \n using the name Leach Framing? \n \nA On and off for, I don’t know, 20 years. \n \nQ And is it registered anywhere? \n \nA No. \n \n... \n \nQ So does that business, does that consist \n of the partners, Robert Leach, Charles \n Leach, and John House? \n \nA No, not necessarily.    That there was just \n something we had to do so we would \n have insurance so we could work for \n another individual. \n \n... \n \nQ Now, you took out a workers’ \n compensation policy on a business called \n Leach Framing and listed Robert Leach \n and Charles Leach and John House as \n the members taking out that workers’ \n compensation policy; is that correct? \n \nA I think so. \n \n... \n \nQ Well did you take out a policy? \n \nA Yes, kind of.  I mean I don’t – that is why \nI   would like to explain my answer. \n \nQ What do you mean by kind of? \n \nA We were doing a job for Mr. Mike Botson \n (phonetic) and his wife Trish Botson and \n\nLEACH – H201552                  18 \n \n \n he told me that I needed to get a policy \n like this.    So Ms. Trish went to PIG In \n[sic]     Bentonville, Professional Insurance \n Group.    She had the policy wrote up.   \nShe     had it wrote up the way that it is written \n up.    She paid for the policy and then I \nhad    to pay them back the next two weeks out \n of the check, out of my draw.    I paid \nthem   what I owed them back at that time so \n that we had the insurance so that we \n could work. \n \nQ Okay.    And this is the same policy that \n was active during the incident that \n occurred with Charles at the Bethel home \n that you did renew for a second year; is \n that correct? \n \nA That they canceled.    I tried to renew and \n then they canceled it, if you will notice. \n \n... \n \nQ And you used this policy – let me step \n away from you here.    And you used this \n policy when working with Oliver as \n workers’ compensation insurance; is that \n correct?    What I mean by that is Oliver \n required workers’ compensation \n insurance to work for him; is that correct? \n \nA No, sir.    He never asked me for my \n insurance.    He asked me for my general \n liability and I told him that I could get him \n [a] copy down at Randy’s.  And then he \n asked about the workmen’s comp, that \n policy, only I want to say three or four \n months ago. \n \n Tom also testified that he always considered the claimant an \nemployee and only named the claimant as a partner in Leach Framing for \n\nLEACH – H201552                  19 \n \n \nthe purposes of the workers' compensation insurance policy “because he \ncouldn’t afford to pay taxes or, you know, the nine percent”. \n Based on the aforementioned, I find that the claimant was an \nemployee of Tom Leach.    I also find that Tom Leach was an uninsured \nsubcontractor of the prime contractor, O.A.K.    Thus, pursuant to Ark. Code \nAnn. §11-9-402(a), O.A.K. is responsible for paying workers’ compensation \nbenefits in this matter. \n For the foregoing reasons, I dissent from the majority opinion. \n \n      __________________________ \nM. Scott Willhite, Commissioner","textLength":26008,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201552 CHARLES LEACH, EMPLOYEE CLAIMANT O.A.K. CONSTRUCTION, INC., EMPLOYER RESPONDENT LIBERTY MUTUAL GROUP, CARRIER RESPONDENT OPINION FILED JUNE 7, 2023 Upon review before the Full Commission, Little Rock, Pulaski County, Arkansas. Claimant represented b...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:46.266Z"},{"id":"alj-G903696-2023-06-07","awccNumber":"G903696","decisionDate":"2023-06-07","decisionYear":2023,"opinionType":"alj","claimantName":"Donna Hassell","employerName":"Walmart Associates, Inc","title":"HASSELL VS. WALMART ASSOCIATES, INC. AWCC# G903696 JUNE 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HASSELL_DONNA_G903696_20230607.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HASSELL_DONNA_G903696_20230607.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G903696 \n \nDONNA HASSELL, Employee                                                                         CLAIMANT \n \nWALMART ASSOCIATES, INC., Employer                                             RESPONDENT                         \n \nWALMART CLAIMS SERVICES, Carrier                                                 RESPONDENT                          \n \n \n OPINION FILED JUNE 7, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JAMES A. ARNOLD, II, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 24, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.    A  pre-hearing  conference  was  conducted  on  March  15,  2023  and  a  pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   All prior opinions are final. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Claimant’s entitlement to additional medical treatment as recommended by  \nDr. Baird in the form of a spinal cord stimulator. \n\nHassell – G903696 \n2 \n \n The claimant contends she is entitled to treatment recommended by her authorized \ntreating  physician,  Dr.  Clinton  Baird,  in  the  form  of  a  spinal  cord  stimulator.    Claimant \nreserves all other issues. \n The respondents contend that Dr. Baird’s proposed spinal cord stimulator trial is \nnot   reasonably   necessary   medical   treatment   in   connection   with   the   claimant’s \ncompensable injury.  Indemnity benefits and attorney fees are being paid as appropriate. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non March 15, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has failed to prove by a preponderance of the evidence that she is \nentitled to a spinal cord stimulator trial as recommended by Dr. Baird. \n \n FACTUAL BACKGROUND \n The claimant is a 61-year-old woman who was involved in a motor vehicle accident \nwhile working for respondent on February 4, 2019.  The parties have previously stipulated \nthat as a result of that accident claimant suffered compensable injuries to her right knee, \nneck, and low back.  Claimant underwent surgery in the form of a fusion at the L4-5 level \nby Dr. Armstrong on June 4, 2019.  Following that procedure claimant came under the \n\nHassell  - G903696 \n \n3 \n \ncare of Dr. Clinton Baird in Tulsa, Oklahoma who performed a sacroiliac joint fusion on \nFebruary 7, 2020.  In an Opinion filed on August 12, 2020, it was determined that claimant \nhad  proven  by  a  preponderance  of  the  evidence  that  she  was  entitled  to  additional \nmedical  treatment  for  her  low  back  and  SI  joint;  including  the  surgery  which  had  been \nperformed by Dr. Baird. \n Claimant  has  continued  to  treat  with  Dr.  Baird.    He  recommended  an anterior \ncervical  discectomy  and  fusion  at  the  C4-C7  level  and  performed  that  procedure  on \nSeptember 23, 2020.  Following a hearing on February 24, 2021, an Opinion was filed on \nMarch 17, 2021 finding that claimant had proven by a preponderance of the evidence that \nshe was entitled to additional medical treatment for her cervical injury which included the \nsurgery performed by Dr. Baird. \n Since that time, claimant has continued to receive medical treatment from Dr. Baird \nand has undergone pain management for complaints involving continued low back pain.  \nClaimant’s treatment has included injections, physical therapy, and pain medication.  On \nDecember  27,  2021,  Dr.  Baird  performed  a  lumbar  laminectomy  with  L5-S1  hardware \nremoval.   \n Despite claimant’s most recent surgery, she has continued to complain of low back \ncomplaints.  In his report of May 10, 2022, Dr. Baird recommended that claimant undergo \na spinal cord stimulator trial.   \n Respondent has  denied  liability for the spinal cord stimulator trial recommended \nby Dr. Baird, and as a result claimant has filed this claim contending that she is entitled \nto additional medical treatment in the form of the spinal cord stimulator trial recommended \nby Dr. Baird. \n\nHassell  - G903696 \n \n4 \n \nADJUDICATION \n Claimant contends that she is entitled to additional medical treatment in the form \nof a spinal cord stimulator trial as recommended by Dr. Baird.  Claimant has the burden \nof  proving  by  a  preponderance  of  the  evidence  that  medical  treatment  is  reasonably \nnecessary.  Stone v. Dollar General Stores, 91 Ark. App. 260, 209 S.W. 3d 445 (2005).  \nWhat  constitutes  reasonably  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  Wright Contracting Company v. Randall, 12 Ark. App. 358, 676 S.W. 2d \n750 (1984). \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet her burden of proof. \n As previously noted, claimant suffered an admittedly compensable injury to her low \nback  as  a  result  of  a  motor  vehicle  accident  on  February  4,  2019.    Since that  time, \nclaimant has undergone extensive medical treatment for her low back.  This includes a \nfusion at the L4-5 level by Dr. Armstrong; a sacroiliac joint fusion by Dr. Baird on February \n7,  2020;  and  surgery  to  remove  hardware  with  a  lumbar  laminectomy  by  Dr.  Baird on \nDecember  27,  2021.    In  addition  to  three  surgical  procedures,  claimant  has  received \ntreatment  in  the  form  of  medication,  injections,  and  physical  therapy.    Despite  this \ntreatment, claimant’s complaints of low back pain persist and as a result Dr. Baird has \nnow recommended a spinal cord stimulator trial. \n In  connection  with  the  spinal  cord  stimulator  trial,  claimant  was  referred  for  a \npsychological evaluation to determine whether she was a candidate for the spinal cord \nstimulator trial.  Claimant  was not evaluated by a local psychiatrist or psychologist, but \ninstead  participated  in  a  videoconference  examination  with  Dr.  Maria  Arizaga  who  is \n\nHassell  - G903696 \n \n5 \n \nboard certified in psychiatry and addiction medicine in New Mexico.  Dr. Arizaga authored \na report dated January 4, 2023, indicating that claimant  was a candidate for the spinal \ncord  stimulator  assessment  and  intervention.    Notably,  Dr.  Arizaga  performed  no \npsychological testing on the claimant. \n In  response  to  Dr.  Arizaga’s  report,  respondent  had  claimant  evaluated  by  Dr. \nRichard  Back,  a  clinical  neuropsychologist  in  Fayetteville.    Dr.  Back  performed  an  in-\nperson  evaluation  of  the  claimant  and  in  addition administered  psychological  testing  in \nthe  form  of  an  MMPI-2.    According  to  Dr.  Back’s  report  of  March  28,  2023,  claimant’s \nprofile from the MMPI-2 was elevated.  Significantly, it was his opinion that claimant would \nbe a poor surgical risk for pain control such as a spinal cord stimulator.  Specifically, Dr. \nBack stated: \n  Ms. Hassell’s Pain Assessment Index was calculated from \n  her MMPI-2 T-score.  Her scores (15.5) exceeds the cut-off \n  of 13.  Scores above 13 are associated with poor surgical \n  results aimed at pain reduction.  This formula is 93.5%  \n  accurate in identifying poor surgical risks for pain control. \n \n \n Dr. Back went on to diagnose claimant’s condition as Somatic Symptom Disorder \ndue to predominant pain and recommended conservative medical intervention. \n In addition, respondent had claimant undergo an evaluation by Dr. Carlos Roman.  \nIn a report dated May 15, 2023, Dr. Roman stated that a spinal cord stimulator might be \nan unnecessary risk and he recommended medication management.  I do note that in his \nreport   Dr.   Roman   indicated   that   claimant’s   psychiatric   evaluation   showed   no \ncontraindication to the stimulator.  Perhaps Dr. Roman was only aware of the report of \nDr. Arizaga and not of the report and MMPI-2 results of the testing performed by Dr. Back.  \n\nHassell  - G903696 \n \n6 \n \nClearly, Dr.Back’s report indicates that claimant is not a good candidate for pain reduction \nsurgery. \n In my opinion, the opinion of Dr. Back is entitled to greater weight than the opinion \nof Dr. Arizaga. First, Dr. Back performed an in-person evaluation of the claimant.  On the \nother hand, Dr. Arizaga performed her examination by teleconference.  More importantly, \nDr.  Back  performed  psychological  testing  in  the  form  of  an  MMPI-2  while  Dr.  Arizaga \nperformed  no  psychological  testing.    According  to  Dr.  Back,  claimant’s  MMPI-2  results \nindicate  that  she  is  a  poor  surgical  risk  for  pain  control.    Based  upon  the  test  results \nassessed by Dr. Back, which I find to be credible and entitled to great weight, I find that \nclaimant has failed to prove by a preponderance of the evidence that she is entitled to \nadditional medical treatment in the form of a spinal cord stimulator trial as recommended \nby Dr. Baird. \nORDER \n Claimant has failed to prove by a preponderance of the evidence that she is entitled \nto   additional   medical   treatment   in   the   form   of   a   spinal   cord   stimulator   trial   as \nrecommended by Dr. Baird.   Therefore, her claim for additional compensation benefits is \nhereby denied and dismissed. \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $410.00. \n IT IS SO ORDERED. \n \n     _______________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":10472,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G903696 DONNA HASSELL, Employee CLAIMANT WALMART ASSOCIATES, INC., Employer RESPONDENT WALMART CLAIMS SERVICES, Carrier RESPONDENT OPINION FILED JUNE 7, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkans...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:3","denied:3"],"injuryKeywords":["knee","neck","back","cervical","lumbar"],"fetchedAt":"2026-05-19T23:06:02.723Z"},{"id":"alj-H205334-2023-06-07","awccNumber":"H205334","decisionDate":"2023-06-07","decisionYear":2023,"opinionType":"alj","claimantName":"James Reese","employerName":"Kroger Limited Partnership I","title":"REESE VS. KROGER LIMITED PARTNERSHIP I AWCC# H205334 JUNE 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/REESE_JAMES_H205334_20230607.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REESE_JAMES_H205334_20230607.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205334 \n \nJAMES REESE, EMPLOYEE  CLAIMANT \n \nKROGER LIMITED PARTNERSHIP I, \nEMPLOYER                                                                                                RESPONDENT  \n \nSELF-INSURED EMPLOYER/SEDGWICK CLAIMS  \nMANAGEMENT SERVICES, INSURANCE CARRIER/TPA                    RESPONDENT  \n \n \nOPINION FILED JUNE 7, 2023 \n \nHearing before Administrative Law Judge Steven Porch on June 6, 2023 in Little Rock, \nPulaski County, Arkansas. \n \nClaimant, pro se. \n \nThe Respondents were represented by Ms. Karen H. McKinney, Attorney at Law, Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on  June 6, 2023, in Little Rock, \nArkansas.  Claimant, who is pro se, did not appear for the hearing.  Respondents were \nrepresented at the hearing by Ms. Karen H. McKinney, Attorney at Law, of Little Rock, \nArkansas. In addition to Respondents’ argument, the record consists of the Commission’s \nfile, which has been incorporated herein in its entirety by reference, including all exhibits \nproperly admitted before the Commission. \n The evidence reflects that Claimant’s injury occurred on January 10, 2022, where \nhe purportedly injured his neck and back.  This incident allegedly occurred when Claimant \nwas pushing shopping carts into the store. A hearing was held on June 6, 2023, in Little \n\nREESE – H205334 \n \n \n2 \nRock, Arkansas, on the Motion to Dismiss. And as previously stated, the Claimant did not \nappear for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \n\nREESE – H205334 \n \n \n3 \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven  reasonable  notice,  at  the  addresses  provided  by  each  party,  for  the Motion  to \nDismiss hearing under Rule 13. I further find that Claimant has abridged this rule. Thus I \nfind Respondent’s Motion to Dismiss should be granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4519,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205334 JAMES REESE, EMPLOYEE CLAIMANT KROGER LIMITED PARTNERSHIP I, EMPLOYER RESPONDENT SELF-INSURED EMPLOYER/SEDGWICK CLAIMS MANAGEMENT SERVICES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED JUNE 7, 2023 Hearing before Administrative Law Judge Steven Po...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:4"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T23:06:04.786Z"},{"id":"alj-H106531-2023-06-07","awccNumber":"H106531","decisionDate":"2023-06-07","decisionYear":2023,"opinionType":"alj","claimantName":"Danna Rosado","employerName":"Delta Airlines, Inc","title":"ROSADO VS. DELTA AIRLINES, INC. AWCC# H106531 JUNE 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ROSADO_DANNA_H106531_20230607.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROSADO_DANNA_H106531_20230607.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H106531 \n \nDANNA ROSADO, EMPLOYEE  CLAIMANT \n \nDELTA AIRLINES, INC., \nEMPLOYER                                                                                                RESPONDENT  \n \nINDEMNITY INSURANCE COMPANY \nOF NORTH AMERICA, CARRIER / SEDGWICK \nCLAIMS MANAGEMENT SERVICES, INC., TPA                                             RESPONDENT \n \n \nOPINION FILED JUNE 7, 2023 \n \nHearing before Administrative Law Judge Steven Porch on June 6, 2023 in Little Rock, \nPulaski County, Arkansas. \n \nClaimant, pro se. \n \nThe  Respondents  were  represented  by  Eric  Newkirk,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on  June 6, 2023, in Little Rock, \nArkansas.  Claimant, who is pro se, did not appear for the hearing.  Respondents were \nrepresented at the hearing by Mr. Eric Newkirk, Attorney at Law, of Little Rock, Arkansas. \nIn addition to Respondents’ argument, the record consists of the Commission’s file, which \nhas been incorporated herein in its entirety by reference, including all exhibits properly \nadmitted before the Commission. \n The evidence reflects that Claimant’s injury occurred on July 8, 2021, where she \npurportedly injured her back and other whole body.  This incident allegedly occurred when \nClaimant was assisting a passenger in a wheelchair when she bent over and and felt a \n\nROSADO – H 106531 \n \n \n2 \npull in her back. A hearing was  held on June 6, 2023, in Little Rock, Arkansas, on the \nMotion to Dismiss. And as previously stated, the Claimant did not appear for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute her claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \n\nROSADO – H 106531 \n \n \n3 \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven  reasonable  notice,  at  the  addresses  provided  by  each  party,  for  the Motion  to \nDismiss hearing under Rule 13. I further find that Claimant has abridged this rule. Thus I \nfind Respondent’s Motion to Dismiss should be granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4620,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H106531 DANNA ROSADO, EMPLOYEE CLAIMANT DELTA AIRLINES, INC., EMPLOYER RESPONDENT INDEMNITY INSURANCE COMPANY OF NORTH AMERICA, CARRIER / SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., TPA RESPONDENT OPINION FILED JUNE 7, 2023 Hearing before Administrative Law ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:4"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:06:06.847Z"},{"id":"alj-H203317-2023-06-06","awccNumber":"H203317","decisionDate":"2023-06-06","decisionYear":2023,"opinionType":"alj","claimantName":"Mark Ausbrooks","employerName":"Lexicon, Inc","title":"AUSBROOKS VS. LEXICON, INC. AWCC# H203317 JUNE 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//AUSBROOKS_MARK_H203317_20230606.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"AUSBROOKS_MARK_H203317_20230606.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203317 \n \nMARK AUSBROOKS, EMPLOYEE   CLAIMANT \n \nLEXICON, INC., EMPLOYER   RESPONDENT \n \nTRISTAR CLAIMS MANAGEMENT SERVICES, INC.,                            RESPONDENT \nCARRIER/ TPA   \n \n \nOPINION FILED JUNE 6, 2023 \n \nHearing before Administrative Law Judge Steven Porch on May 4, 2023, in Little Rock, \nPulaski County, Arkansas. \n \nClaimant represented by Mr. Gary Davis, Attorney at Law, Little Rock, Arkansas. \n \nRespondents   represented   by   Ms.   Melissa   Wood,   Attorney   at   Law,   Little   Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n A prehearing telephone conference was held on this claim on Wednesday, March \n1,  2023.    The  claimant  was  represented by  Mr.  Gary  Davis,  Attorney-at-Law  of  Little \nRock, Arkansas, respondents were represented by Ms. Melissa Wood, Attorney-at-Law \nof  Little  Rock,  Arkansas.    The  parties  submitted  prehearing  information  filings  prior  to \nthis conference. \nSTIPULATIONS \n By  agreement  of  the  parties,  the  stipulations  applicable  to  this  claim are  as \nfollows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof the within claim. \n  \n2. An  employer/employee  relationship  existed  on  March  24,  2022, \nwhen the claimant sustained a compensable injury. \n \n\nAUSBROOKS – H203317 \n \n2 \n  \nISSUES \n By  agreement  of  the  parties,  the  issue  to  be  presented  at  the  hearing    is  as \nfollows: \n1. Temporary total disability (TTD) \n \n \nCONTENTIONS \n \nThe  claimant’s  and respondents’  contentions  are  set  out  in  their respective \nresponse to the Prehearing Questionnaire. Said contentions are as follows: \nClaimant: Claimant  contends  that  he  sustained  compensable  injuries  to his \nright  leg,  ankle,  and  foot  on  March  24,  2022.  Claimant  further  contends  that  he  is \nentitled  to  payment  of  temporary  total  disability  (TTD)  benefits  for  the  period  of  March \n24, 2022, through a date yet to be determined. That payment of these benefits has been \ncontroverted for purposes of attorney’s fees. Claimant also contends that he is entitled \nto payment of medical treatment for December 6, 2022, surgery. \nRespondent: Respondents  contend  that  all  appropriate  benefits  are  being  paid \nregarding  this  matter.  The  claim  has  been  accepted  at  this  time  as  medical only. \nRespondents provided light duty for claimant and would have continued to do so but for \nhis  termination  on  April  8,  2022,  for  cause.  Respondents  further  contend  that  the \nsurgery performed by Dr. Head was not reasonable and necessary associated with the \nMarch 24, 2022, injury.   \n \n \n\nAUSBROOKS – H203317 \n \n3 \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  the  witnesses  and  to  observe  their  demeanor,  I  hereby  make  the \nfollowing  findings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’ Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  additional  temporary  total  disability  benefits  for  the  following \nperiods:  April 7, 2022, to a date to be determined. \n4.        Claimant’s  December  6,  2022,  ankle  surgery  is  directly  related  to  his \nMarch 24, 2022, injury and shall be paid by the Respondents.  \n5. Claimant has proven by a preponderance of the evidence that his attorney \nis  entitled  to  a  controverted  attorney  fee  on  his  temporary  total  disability \nbenefits that have been awarded herein, pursuant to Ark. Code Ann. § 11-\n9-  715 (Repl. 2012). \nCASE IN CHIEF \nSummary of Evidence \n The  witnesses  were  Mark  Ausbrooks  (Claimant),  Joe  Minton,  Kember  Farnam, \nSteve Bineen, and Renay Bonds. Along with the Prehearing Order discussed above, the \n\nAUSBROOKS – H203317 \n \n4 \nexhibits  admitted  into  evidence  in  this  case  were  a  compilation  of  Claimant’s  medical \nrecords, non-medical documents, and all other documents admitted properly before the \nCommission.  I  have  blue-backed  to  the  record  the post-hearing briefs  of  Claimant  and \nRespondents, filed on May 12, 2023, and May 15, 2023, respectively. \nAdjudication \nA. Temporary Total Disability \n Introduction.    Claimant,  who  was  employed  by  Lexicon  Holding  Company  as  a \nconstruction  worker,  sustained  a  compensable  injury  to  his  right  ankle  (diagnosed \nachilles rupture) on March 24, 2022.  Respondents accepted this injury as compensable \nand  paid  workers’  compensation  benefits  pursuant  thereto,  including  medical  benefits. \nIn  this  proceeding,  Claimant  is  seeking,  among  other  things,  temporary  total  disability \nbenefits.  Respondents dispute his entitlement to them. \n Standards.  An employee who suffers a compensable scheduled injury is entitled \nto  temporary  total  disability  compensation  for  that  period  within  the  healing  period  in \nwhich  he  has  suffered  a  total  incapacity  to  earn  wages.   Ark.  State  Hwy.  &  Transp. \nDept.  v.  Breshears,  272  Ark.  244,  613  S.W.2d  392  (1981).    The  healing  period  ends \nwhen  the  underlying  condition  causing  the  disability  has  become  stable  and  nothing \nfurther in the way of treatment will improve that condition.  Mad Butcher, Inc. v. Parker, \n4  Ark.  App.  124,  628 S.W.2d  582  (1982).    Also,  a  claimant must demonstrate  that  the \ndisability lasted more than seven days.  Id. § 11-9-501(a)(1).  Claimant must also prove \nhis entitlement to temporary total disability benefits by a preponderance of the evidence.  \nArk.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012).    This  standard  means  the evidence \n\nAUSBROOKS – H203317 \n \n5 \nhaving  greater  weight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326 \nS.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206  S.W.2d  442 \n(1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Evidence.  Claimant, who is a 51-year-old mechanic, came down off a ladder and \nstepped wrong causing injury to the right ankle. The Respondents treated this claim as \na  compensable  injury.  The  Respondents  placed Claimant  on  light  duty.  The  nurse  for \nthe  Respondents’  company  later  allowed  Claimant  to  return  to  his  HVAC  construction \nsite  work.  Claimant  was  fired  3  days  later.  Respondents  testified  that  Claimant  was \nterminated for cause due to tardiness and job performance. However, according to Joe \nMinton,  Claimant’s  direct  supervisor,  Respondent  did  not  follow  its  own  policies  and \nprocedures  when  terminating  Claimant’s  employment.  Claimant’s  employment  should \nhave  been  terminated  only  after a  verbal  warning  followed  by  a  written  warning  then \ntermination. The respondents did not engage in any of these pre-termination procedures \n\nAUSBROOKS – H203317 \n \n6 \nwhen  dealing  with  Claimant. Rather  Claimant asked  his  direct  supervisor,  Joe  Minton, \nabout his future with the company and in return Claimant was immediately terminated. \nThe  Respondents’  reasonings  for  the  quick  termination  of  Claimant  was  that \nClaimant  had  poor  job  performance  and  tardiness.  The  Respondents  made  clear  that \njob performance and tardiness had always been a problem with Claimant pre-accident. \nThis is a concerning fact that Respondents retained a poor performing employee where \nothers  had  to  constantly  correct  his  work  to  firing  the  employee  approximately  two \nweeks later.\n1\n  \n Discussion.    Claimant has  argued  that  he  is entitled  to temporary  total  disability \nbenefits  from  March  24,  2022,  to  a  date  to  be  determined.  Respondents  argue  in  the \nnegative due  to  Claimant’s termination  for  cause  from his  employment.  I disagree  with \nRespondents’ logic.   \n In Tyson  Poultry  Co.  v.  Narvaiz,  2012  Ark.  118,  388  S.W.3d  16,  which  controls \nhere,   the   claimant   suffered   a   compensable   left   shoulder   injury—which   is   an \nunscheduled  injury.    He  returned  to  work  at  light  duty.    After  doing  so,  he was \nsuspended and ultimately terminated for calling his supervisor “an insulting, derogatory, \nand vulgar name.”  The respondent argued that their liability for temporary total disability \nbenefits  ended  following  his  firing.    The  Arkansas  Supreme  Court  described  its \nargument as follows: \nAppellant [the respondent] asserts that there is not substantial evidence to \nsupport  the  Commission’s  finding  that  Appellee  [the  claimant]  proved  he \nwas  entitled to temporary-total-disability benefits.   Because  Appellee  was \n \n1\n Claimant has not asked the Commission to address whether this claim involved retaliation by \nRespondent and subject to penalties pursuant to Ark. Code Ann. § 11-9-107. \n\nAUSBROOKS – H203317 \n \n7 \nperforming  light-duty  work  at  the  time  his  employment  was  terminated, \nand  because  Appellant  offered  testimony  that  Appellant  would  have \ncontinued  to  make  the  light-duty  work  available  to  Appellee  absent  his \nmisconduct, Appellant  contends  that Appellee  did  not meet his  burden of \nproving  that  he  was  totally  incapacitated  from  earning  gainful  wages  due \nto  his  compensable  injury.    Any  incapacity  from  earning  wages,  argues \nAppellant, stemmed from Appellee’s misconduct and not from his injury. \n \nNarvaiz, supra. \n The  appellant  in Narvaiz  used  this  position  to  argue  further  that  the  appellee’s \ntermination for misconduct amounted to an abridgement of  Ark. Code Ann. § 11-9-526 \n(Repl. 2012), which provides: \nIf any injured employee refuses employment suitable to his or her capacity \noffered to or procured for him or her, he or she shall not be entitled to any \ncompensation during the continuance of the refusal, unless in the opinion \nof the Workers’ Compensation Commission, the refusal is justifiable. \n \nWhile  Respondents  here  have  not  raised  §  11-9-526,  that  is  a “distinction  without  a \ndifference.”  They are asserting, as was done in Narvaiz, that (1) Claimant was released \nto  light  duty;  (2)  they  had  work  available  for  Claimant;  and  (3)  but  for  Claimant’s \ntermination,  he  would  have been  working  there  in  that  capacity  during  the  period  for \nwhich he is seeking temporary total disability benefits. \n But the Arkansas Supreme Court expressly rejected this argument, reasoning: \n[T]he  misconduct  and  insubordination  [by  the  appellant/claimant]  are  just \nthat, misconduct and insubordination, and nothing more.  After committing \nthe  misconduct  and  suffering  the  suspension,  Appellee  returned  to  work.  \nIt  was  then  Appellant’s  option  to  terminate  his  employment  or  allow \nhim  to  continue  working  light  duty.  Regardless  of  Appellant’s  choice, \nAppellee was still within his healing period. \n \nNarvaiz, supra.    (Emphasis  added)  See  also  Packers  Sanitation  Svcs.  v.  Quintanilla, \n2017 Ark. App. 213, 518 S.W.3d 701; Superior Indus. v. Thomaston, 72 Ark. App. 7, 32 \n\nAUSBROOKS – H203317 \n \n8 \nS.W.3d  52  (2000).    Claimant  in  this  case,  as  Joe  Minton  testified,  engaged  in  conduct \nthat led to his termination, such as poor job performance and tardiness. Mr. Minton also \ntestified  that  if  Claimant  had  not  approached  him  that  day  asking  about  his  future,  he \nwould  still  be  working.  Respondents  cite  the Roark  case  as  controlling  in  this  matter. \nHowever, the issue here is different than the situation in Roark v. Pocahontas Nursing & \nRehab., 95 Ark. App. 176, 235 S.W.3d 527 (2006), where the firing was for violation of \nthe employer’s attendance policy, which provided for immediate termination.  There, the \nArkansas  Court  of  Appeals  found  that  the  claimant  could  not  establish  entitlement  to \ntemporary  total  disability  benefits  following  the  termination.    In  this  matter,  Claimant’s \ndirect supervisor, Joe Minton, clearly had the discretion concerning whether to terminate \nClaimant; nothing in evidence shows that he engaged in conduct that made termination \nautomatic or virtually so. \nB.  Additional Medical Treatment \n Introduction.  The  Claimant  was  terminated  from  his  job  on  April  8,  2022. \nRespondents  stopped  paying  benefits  to  the  Claimant  after  his  termination.  The \nRespondents view Claimant’s surgery as additional medical treatment for a pre-existing \ncondition.  Respondents  tried  to  piece  together  Claimant’s  medical  history  on  his  ankle \ninjury by reviewing MRIs from April 21, 2022, and August 1, 2022. The Respondents put \nforward  the  opinion  of  Dr.  Justin  Long,  Radiologist,  for  the  proposition  that  the MRI \nexams  suggest  that  the  surgery  would  be  treating  the  continued  tendinopathy  and \nreducing the risk for recurrent tear. The purpose of Dr. Long’s opinion is to show a pre-\nexisting injury on the part of the claimant.  \n\nAUSBROOKS – H203317 \n \n9 \nStandards.  A pre-existing infirmity does not disqualify a claim if the employment \naggravated,  accelerated,  or  combined  with  the  infirmity  to  produce  the  disability  for \nwhich  compensation  is  sought.   St.  Vincent  Med.  Ctr.  v.  Brown,  53  Ark.  App.  30,  917 \nS.W.2d  550 (1996).    “An  aggravation,  being a  new  injury  with  an  independent  cause, \nmust  meet  the  requirements  for  a  compensable  injury.”   Crudup  v.  Regal  Ware,  Inc., \n341  Ark.  804,  20  S.W.3d  900  (2000);   Ford  v.  Chemipulp  Process,  Inc.,  63  Ark.  App. \n260,  977  S.W.2d  5  (1998).    This  includes  the  prerequisite  that  the  alleged  injury  be \nshown  by  medical  evidence  supported  by  objective  findings.   See  Heritage  Baptist \nTemple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003).  These standards are not \napplicable here. \nDiscussion.  A  claimant  may  be  entitled  to  additional  treatment  after  the  healing \nperiod  has  ended  if  it  is  geared  toward  management  of  the  compensable injury. \nSantillan v. Tyson Sales & Distribution, 2011 Ark. App. 634 (2011).  The healing period \nends  when  the  underlying  condition  causing  the  disability  has  become  stable  and \nnothing  further  in  the  way  of  treatment  will  improve  that  condition. Johnson  v.  Pat \nSalmon & Sons, Inc. 2011 Ark. App. 48 (2011). The question of when the healing period \nhas  ended  is  a  factual  determination  for  the  Commission. Id.  No  healing  period  has \nbeen  established  nor a maximum  medical  improvement  rate  has been  assigned to  the \nClaimant.  I  do  find  by  the  preponderance  of  the  evidence  that  Claimant’s  injury  was \ncontinuous  and  without  interruption  from  the  date  of  the  compensable  injury  until  his \nsurgery  and  beyond,  to  a  date  to  be  determined.  I  further  find  that  Claimant’s \ncompensable injury was a prime factor in Claimant’s need for surgery.  \n\nAUSBROOKS – H203317 \n \n10 \nWith that expressed, and out of thoroughness, I do find the change of physician \nrules  do  not  apply  in  this  matter.  No  evidence  has  been  presented  showing  that \nClaimant  received  the  required  notice  that  would  trigger  these  rules.  Arkansas  Code \nAnnotated § 11-9-514. \nAttorney  Fees.  Claimant  has  asserted  that  he  is  entitled  to  a  controverted \nattorney’s fee in this matter. One of the purposes of the attorney's fee statute is to put \nthe economic burden of litigation on the party who makes litigation necessary.  Brass v. \nWeller,  23  Ark.  App.  193,  745  S.W.2d  647  (1998).    In  this  case,  the  fee would  be  25 \npercent  (25%)  of  any  indemnity  benefits  awarded  herein,  one-half  of  which  would  be \npaid by Claimant and one-half to be paid by Respondents in accordance with See Ark. \nCode  Ann.  §  11-9-715  (Repl.  2012).   See Death  &  Permanent  Total  Disability  Trust \nFund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). \n Discussion.  The evidence before me shows that Respondents have controverted \nClaimant’s  entitlement  to  temporary  total  disability  benefits  that  were  awarded  herein.  \nThus,  the  evidence  preponderates  that  his  counsel  is  entitled  to  the  fee  as  set  out \nabove. \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid \nin a lump sum without discount, and this award shall earn interest at the legal rate until \npaid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First  State \nBank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n\nAUSBROOKS – H203317 \n \n11 \n Claimant’s  attorney  is  entitled  to  a  25  percent  (25%)  attorney’s  fee awarded \nherein,  one-half  of  which  is  to  be  paid  by  Claimant  and  one-half  to  be  paid  by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. Steven Porch \n       Administrative Law Judge","textLength":18179,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203317 MARK AUSBROOKS, EMPLOYEE CLAIMANT LEXICON, INC., EMPLOYER RESPONDENT TRISTAR CLAIMS MANAGEMENT SERVICES, INC., RESPONDENT CARRIER/ TPA OPINION FILED JUNE 6, 2023 Hearing before Administrative Law Judge Steven Porch on May 4, 2023, in Little Rock, Pu...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["ankle","shoulder"],"fetchedAt":"2026-05-19T23:05:58.509Z"},{"id":"alj-H205844-2023-06-06","awccNumber":"H205844","decisionDate":"2023-06-06","decisionYear":2023,"opinionType":"alj","claimantName":"Robert Scott","employerName":"Correct Craft Holdings, LLC And Basscat","title":"SCOTT VS. CORRECT CRAFT HOLDINGS, LLC and BASSCAT AWCC# H205844 JUNE 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SCOTT_ROBERT_H205844_20230606.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCOTT_ROBERT_H205844_20230606.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205844 \n \nROBERT W. SCOTT, EMPLOYEE        CLAIMANT \n \nCORRECT CRAFT HOLDINGS, LLC and  \nBASSCAT, EMPLOYER                 RESPONDENT \n \nZENITH INSURANCE COMPANY, \nCARRIER/TPA               RESPONDENT \n \nOPINION FILED JUNE 6, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 19\nTH\n day of April, \n2023, in Mountain Home, Baxter County, Arkansas. \n \nClaimant is represented by Mr. Frederick S. “Rick” Spencer, Attorney-at-Law, Mountain \nHome, Arkansas. \n \nRespondents  are  represented  by  Mr.  James  A.  Arnold,  II,  Attorney-at-Law,  Ft.  Smith, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was conducted on the 19\nth\n day of April, 2023, to determine the issues of \ncompensability for a work-related hernia injury; medical in regard to the injury; entitlement \nto  temporary  total  disability;  plus  attorney  fees.    All  other  issues  were  reserved.  The \nrespondents contend that the claimant is not entitled to Arkansas workers’ compensation \nbenefits for his hernia.  At the time of the hearing the parties stipulated that the claimant \nearned  an  average  weekly  wage  of  $679.32  for  a  TTD/PPD  rate  of  $453.00/$340.00, \nrespectively.   A copy of the Prehearing Order was marked “Commission Exhibit 1” and \nmade part of the record without objection.  The Order provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission has jurisdiction of the within claim \nand that an employer/employee relationship existed on or about August 3, 2022, and all \nrelevant times.        \n\nSCOTT – H205844 \n \n2 \n \n The  claimant’s  and  respondent’s  contentions  are all  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \nobjection.      Robert  Scott,  the  claimant,  and  his  wife,  Jennifer  Scott,  were  the  two  (2) \nwitnesses to testify.  From a review of the record as a whole, to include medical reports \nand other matters properly before the Commission and having had an opportunity to hear \nthe testimony and observe demeanor of the witnesses, the following findings of fact and \nconclusions of law are made in accordance with Arkansas Code Annotated § 11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That  an  employer/employee  relationship  existed  on  August  3,  2022,  and  all \nrelevant times.  At the time, the claimant earned an average weekly wage of \n$679.32   a   week,   sufficient   for   a   TTD/PPD   rate   of   $453.00/$340.00, \nrespectively, per week. \n \n3.  That the claimant has failed to satisfy the required burden of proof to show that \nhe sustained a compensable, work-related hernia on August 3, 2022. \n \n4.  That, consequently, all other issues are moot. \n \n5.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The  Prehearing  Order,  along  with  the  prehearing  questionnaires  of  the parties \nwere admitted into the record without objection.  The claimant submitted an exhibit which \nwas  admitted  without  objection  consisting  of  seventeen  (17)  pages  of  medical  reports.  \nThe  respondents  also  submitted an  exhibit  which  was  admitted  without  objection \nconsisting of twenty (20) pages of medical reports. \n\nSCOTT – H205844 \n \n3 \n \n The claimant, Robert Scott, testified that he was born on January 20, 1971, and \nwas fifty-two (52) at the time of the hearing.  His job consisted of laying fiberglass in high \nend bass boats and stated that he was bending over, laying fiberglass when he felt an \nimmediate pain.  He had started work for the respondent on February 2, 2022.  He testified \nthat he had gotten pretty good at his job and had finished up a job laying fiberglass in \nregard to live-wells and went to assist another worker.  He had bent over laying a piece \nof fiberglass and didn’t like the way it looked and pulled it back.  “I raised up, and it was \nclose to being finished, time for lunch.  When I raised up I felt a sharp pain, and I thought, \n‘that was weird.’”  The pain was sporadic and was not normal, “and it kept getting worse \nso I went to my supervisor, Jessie, and told him, I said ‘Something’s wrong.’”  “Maybe I \nneed to call my wife.  She has some medical background.”  “So I laid my shirt and I took \na picture of it, that I had a little egg right there in the beginning. When I raised my shirt it \nwas gone, and I thought, ‘Well, that’s weird.  That doesn’t make sense.’”  He went on to \nstate that he took a picture of it and sent it to his wife who said “You might want to go to \nthe  hospital,  cause  it  could  be  a  strangulated  hernia.”    The  claimant  then  told  his \nsupervisor and left for the hospital. (Tr. 6-9)  The claimant testified he would sometimes \nlift the tops of boats which were very heavy and guessed that they weighed probably a \nthousand pounds, with four (4) or five (5) guys on each side lifting.  When asked if he had \nany pre-existing problems with hernias, he admitted “there was a bulge or whatever” but \nthat he had never had surgery for a hernia. (Tr. 10)  The claimant thought that after he \nwent  to  the  emergency  room,  he  saw Dr.  Lincoln  Payton,  the  workers’  compensation \ndoctor.  He was then given a referral to see a surgeon, Dr. Carlisle, and was taken off \nwork  until  the  15\nth\n,  he  thought. \n \nDr.  Carlisle  performed  surgery  which  took  care  of  the \n\nSCOTT – H205844 \n \n4 \n \nproblem.  (Tr.  11-13)    The  claimant  returned  to  work  for  the  respondent  for  a  week \nperforming light-duty and was then told that they did not need his services, and was off \nwork until November 17, 2022.  He then returned to work for another employer, Waste \nConnections  at  Midway.    (Tr.  14)    The  claimant  stated  the  respondent  knew  about  his \ninjury immediately. (Tr. 15) \n Under cross-examination, the claimant admitted that at the time he felt the pain on \nAugust  3\nrd\n,  he  was  not  lifting  anything,  but  that  he  had  bent  over  the  boat  and had \nstraightened up.  He also admitted he remembered telling the doctor in the emergency \nroom he had a hernia in his belly button and he felt that it had gotten worse today.  “I told \nthem I had a bulge and something’s wrong because it disappeared and I’m in a lot of pain.  \nAnd I had spoke to my wife with regard to it.”  The claimant went on to admit that he had \ntaken a picture of his belly button because there had been a “little goose egg bulge” but \nthat all of a sudden it was gone and that scared him.  “All I knew is I was in a lot of pain.”  \nHe admitted he already had the bulge for a year when he went to Dr. Carlisle, which was \nbefore he went to work for the respondent.  He also admitted that he had not had any \nincident, accident, or injury, while working for the respondent for his six (6) month work \nperiod.  He also admitted he had been taken off work initially, then returned to work, and \nworked a week.  He was released to return to work on October 17.  The claimant admitted \nthat if the records provided he had been last seen by Dr. Carlisle on October 3\nrd\n, and his \nrelease was two (2) weeks later, there was a period that he didn’t have a job. (Tr. 17-20)     \n Under  re-direct,  the  claimant  testified  that  he  had  done  a  good  job  for  the \nrespondent and would bend way over while making the live wells, almost down to touching \nhis toes.  When he raised back up there was really a sharp pain.  He wondered “What \n\nSCOTT – H205844 \n \n5 \n \nwas that.”  “It was like somebody was kicking me on the inside of my stomach with boots \non.”  That’s when I said, “Something’s wrong.”  (Tr. 21-23) \n Jennifer Scott, the wife of the  claimant,  was called.  She stated that prior to the \ninjury, the claimant never had any limitations, and never had any issues being able to do \nanything.  On the day of the injury, and until Dr. Carlisle released him to return to work, \nhis  work  capabilities  were  greatly  diminished.    She  also  stated  that  she  had  been a \nnationally registered EMT basic, but that her license had lapsed. (Tr. 25-26) \nIn  regard  to  medical  records,  the  claimant  submitted  seventeen  (17)  pages  of \nmedical  reports.  The  initial  report  dated  August  3,  2022,  was  a  report  from  the  Baxter \nRegional Emergency Room which provided that the claimant presented with a complaint \nof abdominal pain and stated that he had a hernia in his belly button.  The report went on \nto provide for a finding of a ventral hernia with a loop of bowel in the opening. (Cl. Ex. 1, \nP. 1-4)  An abdominal CT on the same date confirmed this finding. (Cl. Ex. 1, P. 5) \nThe claimant presented to Dr. Carlisle on August 15, 2022.  The report provided \nfor an umbilical hernia that was thought to be acquired.  It also stated that the claimant \nhad provided he was bent over the side of a boat when all of a sudden, he felt a tear when \nstanding up.  The claimant did not remember when he first noted it but it was possibly a \nyear or more.  He bent over wrong and it “popped out.” (Cl. Ex. 1, P. 6-8)  The claimant \nreturned to Dr. Carlisle on September 9, 2022, and a robot assisted lap umbilical hernia \nrepair with mesh was scheduled. (Cl. Ex. 1, P. 9-11) \nThe  claimant  was  admitted  into  Baxter  Regional  for  surgery  on  September  16, \n2022,  for  the  repair  of  the  umbilical  hernia.  (Cl.  Ex.  1,  P.  12-14)    The  claimant  then \nreturned  to  Dr.  Carlisle  on  October  3,  2022  for  a  follow-up.    The  report  provided the \n\nSCOTT – H205844 \n \n6 \n \nclaimant was improving and it recommended a limit in regard to heavy lifting for two (2) \nweeks and then the claimant could return to his normal activities. (Cl. Ex., P. 15-16) \nThe  respondent  also  submitted  medical  reports  which  consisted  of  twenty  (20) \npages and which was the same as many of the claimant’s reports.  The hospital records \nwere similar to the claimant’s but also included a release that provided that the claimant \ncould return to work on August 15, 2022, light-duty, with no lifting over fifteen (15) pounds. \n(Resp. Ex. 1, P. 1-9)  A report from Dr. Lance Lincoln dated August 4, 2022, provided the \nclaimant stated he was bent over a boat, fiber-glassing, and when he raised up, he felt a \nsharp pain in his abdomen.  The pain had declined but the bulge in his navel was tender.  \nThe  report  provided  claimant  was  injured  yesterday.    An  umbilical  hernia  without \nobstruction was assessed with light-duty and no lifting. (Resp. Ex. 1, P. 10-11)    \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving, by a preponderance of the evidence, that he is entitled to compensation benefits \nfor the injury under the Arkansas Workers’ Compensation Law.  In determining whether \nthe claimant has sustained his burden of proof, the Commission shall weigh the evidence \nimpartially,  without  giving  the  benefit  of  the  doubt  to  either  party.    Arkansas  Code \nAnnotated §  11-9-704.   Wade v. Mr. Cavananugh’s,  298  Ark.  364,  768  S.W.  2d  521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996) \nThe  specific  requirement  for  establishing  a  hernia  under  the  Arkansas  Workers’ \nCompensation Act is set forth at Ark. Code Ann. § 11-9-523 as follows: \n\nSCOTT – H205844 \n \n7 \n \n(a)  In all cases of claims for hernia, it shall be shown to the satisfaction of \nthe Commission. \n \n(1.) That the occurrence of the hernia immediately followed as the result \nof sudden effort, severe strain, or the application of force directly to \nthe abdominal wall; \n \n(2.)That there was severe pain in the hernial region; \n \n(3.) That the pain caused the employee to cease work immediately. \n \n(4.) That notice of the occurrence was given to the employer within forty-\neight (48) hours thereafter; \n \n(5.) That the physical distress following the occurrence of the hernia was \nsuch  as  to  require  the  attendance  of  a  licensed  physician  within \nseventy two (72) hours after the occurrence. \n \nThe  above-statute  does  not  provide  benefits  for  every  injury  sustained  by  an \nemployee in the course of his employment; thus the statute provides no benefits in claims \nfor  a  hernia  unless  the  five  (5)  different  things  are  shown  to  the  satisfaction  of the \nCommission.   Humbert  v.  Arkansas  State  Hwy.  &  Transp.  Dept.,  270  Ark.  853,  606 \nS.W.2d 377 (1980).    \nIn  the  present  matter, the  claimant  contends  that  he  felt a  tearing or sharp pain \nwhen he raised up from fiber-glassing on a bass boat  which they were building for the \nrespondent  employer.    He  admitted  he  told  the  ER  doctor  he  had  a  hernia  in  his  belly \nbutton and he felt that it had gotten worse on that day. (August 3, 2022)  He testified, “I \ntold them I had a bulge and somethings wrong and it disappeared.”  There had been a, \n“little goose egg bulge” and it disappeared.  He also admitted he had the bulge for a year \nprior to presenting to Dr. Carlisle, which was prior to the time when he started working for \nthe respondent. \n\nSCOTT – H205844 \n \n8 \n \nIn  the  present  matter, none  of the  treating  physicians opined  that the  claimant’s \nhernia was caused by a work-related accident.  See, Jaramillo v. Sys Contr., 2014 Ark. \nApp.  552,  445  S.W.  3d  524  (2104).    That  based  upon  the  medical records  and  the \ntestimony of the claimant, it is clear the hernia had pre-existed for over a year, even prior \nto  the  claimant  beginning  work  for  the  respondent.  It  is  also  clear  that  the  Arkansas \nWorkers’ Compensation  Act  is  to  be  strictly  construed.  Consequently,  there  is  no \nalternative  but  to  find  that  the  claimant  has  failed  to  satisfy  the  requirements  for \na   work-related   hernia   injury   pursuant   to   Arkansas   Code   Annotated   §11-9-523.  \nConsequently, all other issues are moot. \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, it is found that the claimant has failed to satisfy the required burden of proof \nthat his claim for the hearing is compensable.  Consequently, all other issues are moot. \n If not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \nIT IS SO ORDERED. \n  \n \n \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":14806,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205844 ROBERT W. SCOTT, EMPLOYEE CLAIMANT CORRECT CRAFT HOLDINGS, LLC and BASSCAT, EMPLOYER RESPONDENT ZENITH INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED JUNE 6, 2023 Hearing before Administrative Law Judge, James D. Kennedy, on the 19 TH day o...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["hernia","back","strain"],"fetchedAt":"2026-05-19T23:06:00.660Z"},{"id":"alj-H104889-2023-06-05","awccNumber":"H104889","decisionDate":"2023-06-05","decisionYear":2023,"opinionType":"alj","claimantName":"Ruth Escobedo","employerName":"Jake’s Janitorial Services","title":"ESCOBEDO VS. JAKE’S JANITORIAL SERVICES AWCC# H104889 JUNE 5, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ESCOBEDO_RUTH_H104889_20230605.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ESCOBEDO_RUTH_H104889_20230605.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H104889 \n \nRUTH ESCOBEDO, Employee CLAIMANT \n \nJAKE’S JANITORIAL SERVICES, Uninsured Employer RESPONDENT NO. 1 \n \nUNIVERSITY OF ARKANSAS, Employer RESPONDENT NO. 2 \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT NO. 2 \n \nABSOLUTE JANITORIAL, Uninsured Employer RESPONDENT NO. 3 \n \n \n \n OPINION FILED JUNE 5, 2023 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondent No. 1 appearing PRO SE. \n \nRespondents No. 2 represented by ROBERT H. MONTGOMERY, Attorney at Law, Little Rock, \nArkansas. \n \nRespondent  No.  3  represented  by GUY ALTON  WADE,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On  March  7,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.   A pre-hearing conference was conducted on April 6, 2022, and a Pre-hearing Order \nwas  filed  on  April  6,  2022.      A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n\nEscobedo – H104889 \n \n-2- \n \n By agreement of the parties the issues to litigate are limited to the following: \n 1.   Whether   the   employee/employer   relationship   existed   between   claimant   and \nRespondent No. 1, Respondents No. 2, or Respondent No. 3 on November 12, 2019. \n 2.  Whether  Claimant  sustained  a  compensable  injury  to  her  left  knee  on  November  12, \n2019. \n 3. Whether Claimant is entitled to medical treatment. \n 4.  Whether  Claimant  is  entitled  to  temporary  total  disability  benefits  from  January  10, \n2021, to a date yet to be determined. \n 5. Whether Claimant’s attorney is entitled to an attorney fee. \n 6. Compensation rates. \n 7. Respondents No. 2 and Respondent No. 3 raise the Notice Defense. \n Claimant’s contentions are: \n“Claimant contends she was working for Jake’s Janitorial Services, \nwho  was  working  for  the  University  of  Arkansas  at  Fayetteville, \nwhen she injured her left knee while working. She contends she is \nentitled  to  treatment  for  her  left  knee  and  to  TTD  benefits  from \nJanuary  1,  2021,  to  a  date  yet  to  be  determined.  The  claimant \nreserves all other issues.” \n \n Respondent No. 1 contends the claimant was not its employee. \n \n Respondents No. 2’s contentions are: \n  \n“The claimant contends that she sustained an injury to her left knee \nwhile   working   for   Jake’s   Janitorial   Services.   The   claimant’s \nprehearing  filing  does  not  list  a  date  of  the  alleged  injury.  The \nclaimant  contends  she  is  entitled  to  medical  treatment  and  TTD \nbenefits. \n \nRespondent  No.  2,  the  University  of  Arkansas,  contends  that  the \nclaimant  was  an  employee  of  either  Respondent  No.  1,  Jake’s \n\nEscobedo – H104889 \n \n-3- \nJanitorial   Services,   or   Respondent   No.   3,   Absolute   Janitorial \nServices,  at  the  time  of  the  alleged  injury  and  that  for  statutory \npurposes   Jake’s   Janitorial   Services   and/or   Absolute   Janitorial \nServices  was  the  claimant’s  employer  at  the  time  of  the  alleged \ninjury.  Information  currently  available  indicates  Jake’s  Janitorial \nServices  directed  and  controlled  any  work  done  by  the  claimant, \nthe  claimant  was  hired  by  Jake’s  Janitorial  Services,  the  claimant \nwas paid by Rodney E. Harris and/or Jake’s Janitorial Services for \nany  work  she  performed,  the  claimant  wore  a  shirt  provided  by \nJake’s Janitorial Services while she was working, and the claimant \nnotified  Rodney  E.  Harris  and/or  Jake’s  Janitorial  Services  of  the \nalleged  injury.  The  claimant  was  employed  by  Respondent  No.  1 \nJake’s Janitorial Services and/or Absolute Janitorial Services LLC. \n \nRespondent No. 3,  Absolute Janitorial Services LLC, is located in \nBentonville,  AR.  Absolute  Janitorial  Services  LLC  has  contracted \nwith  the  University  of  Arkansas  for  the  past  few  years  to  perform \ncleaning  services  at  certain  University  properties.  As  part  of  the \ncontract   with   the   University   of   Arkansas,   Absolute   Janitorial \nServices   LLC   is   required   to   maintain   and   provide   proof   of \nadequate    minimum    insurance    coverage,    including    workers’ \ncompensation  coverage.  Pursuant  to  the  contract,  the  contractor \n(Absolute  Janitorial  Services  LLC)  has  the  sole  right  to  direct  the \nwork  performed  and  instruct  persons  hired  or  employed  by  the \ncontractor  for  performance  of  the  services  enumerated  in  the \ncontract.    Absolute    Janitorial    Services    LLC    utilized    Jake’s \nJanitorial  Services  as  a  sub-contractor  to  perform  the  work  in \nwhich the claimant herein alleges she was injured. \n \nBased  on  information  currently  available  Respondent  No.  2  also \ncontends   that   the   claimant   was   not   performing   employment \nservices  at  the  time  of  the  alleged  injury.  The  claimant  has  stated \nshe  was  getting  out  of  her  car  in  the  parking  lot when  she  slipped \nand fell prior to beginning any work. \n \nLastly,  Respondent  No.  2  first  became  aware  of  the  filing  of  this \nclaim for benefits on June 14, 2021. On that date, Respondent No. \n2  received  copies  of  a  prehearing  filing  and  Form  AR-C  the \nclaimant  had  filed  with  the  Arkansas  Workers’  Compensation \nCommission on June 11, 2021. While not waiving the contentions \nset out above, Respondent No. 2 would contend that, if the claim is \nfound  to  be  compensable,  the  notice  provision  of  Ark.  Code  Ann. \n11-9-701(a)(1) apply to the facts of this claim. Respondent No. 2 is \nnot   responsible   for   any   disability,   medical,   or   other   benefits \nrelative to the claimant’s alleged left knee injury, and furthermore \n\nEscobedo – H104889 \n \n-4- \ncannot  be  responsible  for  any  benefits  claimed  by  the  claimant \nprior  to  June  14,  2021,  which  is  the  date  Respondent  No.  2 \nreceived notice that claimant had filed this claim. \n \nThe  claimant  did  not  sustain  a  compensable  left  knee  injury. \nRespondent  No.  1,  Jake’s  Janitorial  Services  and/or  Rodney  E. \nHarris,  and/or  Respondent  No.  3,  Absolute  Janitorial  Services \nLLC, was the claimant’s employer at the time of the alleged injury. \nThe  claimant  obtained  medical  treatment  prior  to  Respondent  No. \n2 receiving any notice that the claim had been filed. \n \nRespondent No. 2 reserves the right to raise additional issues, or to \nmodify  the  contentions  stated  herein,  pending  the  completion  of \ndiscovery.” \n \n Respondent No. 3’s contentions are: \n“Respondent   No.   3   contends   that   the   claimant   was   not   an \nemployee.  Claimant  failed  and/or  refused  to  report  any  injury  to \nthem  and  they  had  no  knowledge  or  notice  of  any  injury  until \nserved   with   the   claimant’s September   28,   2021,   Form   C. \nRespondent   No.   3   contends   the   claimant   did   not   sustain   a \ncompensable  injury  and/or  injury  for  which  they  would  have  any \nresponsibility.    Claimant’s claim    should    be    denied    and/or \nRespondent  No.  3  should  be  dismissed  from  this  claim  with \nprejudice.” \n \n \n The claimant in this matter is a 38-year-old female who alleges to have been engaged in \nthe   employee/employer   relationship   with   Respondent   No.   1,   Jake’s Janitorial   Services, \nRespondent No. 2, the University of Arkansas, and Respondent No. 3, Absolute Janitorial, when \nshe alleges to have sustained a compensable left knee injury on November 12, 2019. Respondent \nNo. 1, Jake’s Janitorial Services, was owned by a man named Rodney Harris and it was operated \nat the time of the claimant’s alleged injury as a sole proprietorship. Respondent No. 3, Absolute \nJanitorial,  is  owned  by  James  Michael  Harms  and  is  currently  and  at  the time  of  the  claimant’s \nalleged injury operating as an LLC. Respondent No. 2, the University of Arkansas is, of course, a \npublic   institution   of   higher   education   which   entered   into   a   contractual   agreement   with \n\nEscobedo – H104889 \n \n-5- \nRespondent  No.  3,  Absolute  Janitorial,  to  provide  cleaning  services  to  several  of  its  facilities. \nRespondent   No.   3,   Absolute   Janitorial,   then   entered   into   a   contractual   agreement   with \nRespondent  No.  1,  Jake’s  Janitorial  Services,  or  more  accurately,  Rodney  Harris,  as  a  sole \nproprietor, who was also known by many individuals as “Jake” to perform the cleaning services \nRespondent  No.  3,  Absolute  Janitorial,  had  contracted  to  provide  Respondent  No.  2,  the \nUniversity of Arkansas. \n Respondent  No.  1,  Jake’s  Janitorial  Services,  owned  by  sole  proprietor  Rodney  Harris, \nalso  known  as  Jake,  will  be  referred  to  as  Respondent  1 JJS  when  discussing  the  respondent \nbusiness. The name Rodney  Harris will be used when he is giving testimony or referred to as a \nperson and not as a business. While Rodney Harris is also known as Jake and testimony refers to \nhim  as  Jake,  for  all  purposes  Jake  and  Rodney  Harris  are  the  same  person  in  this  matter  and \nRodney Harris will be used unless Jake is used via a quote from the hearing transcript from this \npoint forward. Respondent No. 2, the University of Arkansas, will be referred to as Respondent 2 \nU of A, and Respondent No. 3, Absolute Janitorial, will be referred to as Respondent 3 AJ from \nthis point forward.  \n Rodney  Harris  identified  the  claimant  as  a  contract  worker  and  testified  on  cross \nexamination by Respondent 2 U of A’s attorney, that he had “around 26 or 28” contract workers \nworking at Respondent No. 2 U of A’s campus in November of 2019.  \n An important question in untangling the issues before the Commission is if the claimant \nwas an employee of any of the respondents, and if so, which respondent or respondents was the \nclaimant an employed by.  \n As  the  Court  stated  in Silvicraft,  Inc.  v  Lambert,  10  Ark.  App.  28,  661  S.W.  2d\n \n403 \n(1983),  the  determination  of  whether,  at  the  time  of  the  injury,  a  person  is  an  employee  or \n\nEscobedo – H104889 \n \n-6- \nindependent contractor is a factual one for the Commission. A test to help determine whether an \nindividual  is  an  independent  contractor  or  an  employee is  set  out  by  the  Court  of  Appeals  in \nFranklin v. Arkansas Craft, Inc., 5 Ark. App. 264, 635 S.W. 2d 286 (1982). The Court set forth \nnine factors which may be considered in determining whether an injured  person is an employee \nor an independent contractor for Workers’ Compensation coverage: \n 1. The right to control the means and method by which the work is done; \n 2. The right to terminate the employment without liability; \n 3. The method of payment, whether by time, job, piece or other unit of measure; \n 4.  The  furnishing,  or  the  obligation  to  furnish,  the  necessary  tools,  equipment,  and \nmaterials; \n 5. Whether the person employed is engaged in a distinct occupation or business; \n 6. The skill required in a particular occupation; \n 7. Whether the employer is in business; \n 8. Whether the work is an integral part of the regular business of the employer; and \n 9. The length of time for which the person is employed. \n In considering the claimant’s relationship with Respondent 1 JJS, along  with the factors \nabove, it is clear that the claimant was not an independent contractor but instead an employee of \nRespondent 1 JJS. Respondent 1 JJS had the right to control the means and method of work done \nby the claimant. On cross examination by Respondent 3 AJ’s attorney, Rodney Harris testified as \nfollows regarding his relationship with the claimant. \nQ Okay. Now, you hired the people that was going to perform \nthe work; correct? \n \nA Yes. \n \n\nEscobedo – H104889 \n \n-7- \nQ And  the  people  that  were  actually  going  to  be  at  the  Pike \nhouse   or   Pomfret   or   any   of   those   places   that   there   was   an \nagreement to clean; is that right? \n \nA Yes. \n \nQ And you told them to show up; correct? \n \nA Yes. \n \nQ You told them how they were going to get paid? \n \nA Yes. \n \nQ You  told  them  how  to  do  the  job  if  they  needed  to  get \ninstructions? \n \nA Well, by the time when we started everything, pretty much \neverybody knew what to do. \n \nQ Okay.  And  Ms.  Escobedo  joined  Jake’s  sometime  in  late \nJuly or early August of 2019; is that correct? \n \nA Uh-huh. \n \nQ Is that “yes”? \n \nA Yes. \n \nQ And  I  am  not  picking  on  you.  It’s “uh-huh”  and “huh-uh” \nwon’t come across real well. \n \nA I got you. \n \nQ Now,  this  was  in  response  to  that  Facebook  ad  and  I  think \nyou told me that Karina had put out; is that right? \n \nA Yes. \n \nQ And Karina at the time was a supervisor working with you; \nis that right? \n \nA Correct. \n \n\nEscobedo – H104889 \n \n-8- \nQ Okay.  Now,  she,  being  Ms.  Escobedo,  would  have  been \ninstructed where she was going to be working; is that right? \n \nA Correct. \n \nQ And either you or Karina would have instructed her in that \ncapacity? \n \nA Correct. \n \n There is no evidence on the record that shows Respondent 1 JJS would have any liability \nfor  terminating  the  claimant.  Instead,  liability  only  existed  on  a  per  hour  work  basis  as  the \nclaimant  was  paid  by  the  hour.  The  claimant  furnished  no  tools,  supplies,  or  products  for \ncleaning.  It  appears  those  tools,  supplies,  or  products  were  provided  to  her  at  the  direction  of \nRespondent  1  JJS  but  were  purchased  by  Respondent  3  AJ  and  perhaps  to  some  extent, \nRespondent  2  U  of  A.  The  claimant  was  essentially  a  general  laborer  who  performed  multiple \ntasks in the process of cleaning different facilities. I find no particular skill or training as a need \nor  requirement  for  her  work  other  than  basic  instruction,  which  was  provided  by  Respondent  1 \nJJS.  Respondent  1  JJS  was  solely  in  the  business  of  cleaning  facilities  at  the  campus  of \nRespondent  2  U  of  A  under  a  contractual  obligation  with  Respondent  3 AJ.  The  claimant  was \nsimply hired by Respondent 1 JJS to work five days a week cleaning facilities for a set number \nof  hours  on  a  per  hour  basis.  Respondent  1  JJS  was  the  claimant’s  employer  during  her  time \nworking for Respondent 1 JJS and not an independent contractor even though Respondent 1 JJS \ncalled  her,  and  others,  contract  workers  and  provided  them  1099  forms since  Respondent  1 JJS \ndid not pay employment taxes on its employees. \n The claimant also asked the Commission to consider the employee/employer relationship \nbetween  herself  and  Respondent  2  U  of  A  on  November  19,  2019.  I  find  no  basis  for  that \nrelationship  to  have  existed  at  that  time.  While  it  was  Respondent  2 U of  A’s  facilities  being \n\nEscobedo – H104889 \n \n-9- \ncleaned by the claimant, it was done so through a contractual relationship between Respondent 2 \nU of A and Respondent 3 AJ, who then contracted with Respondent 1 JJS. Respondent 1 JJS did \nhave  an  employee/employer  relationship  with  the  claimant  in  November  of  2019  when  the \nclaimant  alleges  injury.  Here,  Respondent  2 U of  A  is  much  like  an  individual  who  hires,  via \ncontract, a prime contractor to build a house who in turn contracts with a subcontractor to put a \nroof on said house. \n The  claimant  also  asked  the  Commission  to  consider  whether  the  employee/employer \nrelationship   existed   between   herself   and   Respondent   3   AJ.   In   a   traditional   workers’ \ncompensation   consideration,   I   find   Respondent   3   AJ   was   not   in   an   employee/employer \nrelationship  with  the  claimant  in  November  of  2019.  However,  in  giving consideration  to  ACA \n§11-9-402(a)  and  (b)(1),  I  do  find  that  Respondent  3  AJ  would  be  placed  in  the  position  of  the \nemployee/employer relationship with the claimant if liability existed for her alleged compensable \ninjury. Arkansas Code Annotated §11-9-402(a) and (b)(1) states: \n(a) Where a subcontractor fails to secure compensation required by \nthis  chapter,  the  prime  contractor  shall  be  liable  for  compensation \nto   the   employees   of   the   subcontractor   unless   there   is   an \nintermediate    subcontractor    who    has    workers’    compensation \ncoverage. \n \n(b)(1)  Any  contractor  or  the  contractor’s  insurance  carrier  who \nshall  become  liable  for  the  payment  of  compensation  on  account \non  injury  to  or  death  of  an  employee  of  his  or  her  subcontractor \nmay    recover    from    the    subcontractor    the    amount    of    the \ncompensation paid or for which liability is incurred. \n \n The  Arkansas  Supreme  Court in Nucor  Holding  Corp.  v  Rinkines,  326  Ark.  App.  223, \n931 S.W. 2d 439 (1996) discussed prime contractors and subcontractors’ relationship as it relates \nto  the  above  statute  stating, “The  person  sought  to  be  charged  as  a  prime  contractor  must  have \nbeen contractually obligated to a third party for the work being done at the time of the injury.” \n\nEscobedo – H104889 \n \n-10- \n The Arkansas Court of Appeals in Bailey v. Simmons, 6 Ark. App. 196, 639 S.W. 2d 528 \n(1982)   defined   subcontractor   within   the   meaning   of   ACA   §11-9-402   as   follows, “A \nsubcontractor is one who enters into a contract with a person for the performance of work which \nsuch person has already contracted to perform. In other words, subcontracting is merely farming \nout to others all the parts of work contracted to be performed by the original contractor.” \n In the present case Respondent 3 AJ is a prime contractor in respect to ACA §11-9-402. \nRespondent 3 AJ  was  contractually obligated to  Respondent 2 U of A, a  third party, to provide \ncleaning  services  to  Respondent  2  U  of  A  at  their  facilities  in  November  of  2019.  This  is \nevidenced  by  the  testimony  of  Mr.  Harms,  the  owner  of  Respondent  3  AJ,  and  documentary \nevidence  found  at  Respondent  2’s  Exhibit  2,  pages  1-30  in  a  document  titled “Request  for \nProposal  (RFP)  RFP  No.  681360  University  Housing  Cleaning  Support,”  which  was  signed  by \nMr.   Harms.   Another   document   is   found   at   Respondent   2’s   Exhibit   3,   pages   1-2   titled \n“Maintenance  Service  Agreement”  dated  February  19,  2019,  and  signed  by  Mr.  Harms  and  a \nrepresentative of Respondent 2 U of A’s Board of Trustees. That contractual agreement is for a \nperiod  of  12  months  for  cleaning  obligations  in  RFP  No.  681360.  Respondent  3  AJ  is  a  prime \ncontractor under ACA §11-9-402. \n Respondent  1  JJS  is  also  a  subcontractor  with  respect  to  ACA  §11-9-402  in  that \nRespondent  1  JJS  entered  into  a  contract  with  Respondent  3  AJ  to  perform  the  work  that \nRespondent  3  AJ  had  contracted  with  Respondent  2  U  of  A  to  perform.  This  is  shown  without \ndispute  in  testimony  both  by  Mr.  Harris  and  Mr.  Harms.  The  contractual  agreement  itself  is \nfound in evidence at Respondent 3’s Exhibit 2, pages 3-9, and is signed by Mr. Harris  and Mr. \nHarms.  \n\nEscobedo – H104889 \n \n-11- \n Given  the  statutory  language  of  ACA  §11-9-402,  Respondent  3  AJ  would  be  liable  for \ncompensation owed to the claimant if she is able to prove her injuries compensable and benefits \nare  awarded.  I  also  note  that  it  is  undisputed  in  evidence  and  testimony  that  Respondent  1  JJS \nand  Respondent  3  AJ  did  not  have  any  workers’  compensation  policies  in  effect  during \nNovember of 2019. \n I  will  now consider  the  claimant’s  allegation  that  she  sustained  a  compensable  injury  to \nher  left  knee  on  November  12,  2019.  The  claimant  was  employed  by  Respondent  1  JJS  to \nperform housekeeping duties. The claimant would, along with a partner named Maria, clean two \ndifferent  facilities  each  day.  In  November  of  2019  the  claimant  began  her  day  cleaning  at  an \napartment complex on Duncan Street at 7:00 a.m. The claimant testified this would take her and \nher partner an hour to an hour and ten minutes to complete. The claimant gave testimony about \nher work duties after cleaning the Duncan Street Apartments on direct examination as follows. \nQ And  after  you  would  clean  the  Duncan  Street  Apartments, \nthen what would you do? \n \nA I went to another house at the University, the PKA. \n \nQ Is  that  what  you  would  do  every  day?  Was  that  your \nroutine? \n \nA Yes. \n \nQ And how long would you be cleaning PKA? \n \nA I cleaned there from the beginning of the school year until I \nstopped working. \n \nQ Okay.  How  long  would  it  take  you  each  day  to  clean  that \nbuilding? \n \nA We would be there from around 8:00 a.m. until 3:30 p.m. \n \n\nEscobedo – H104889 \n \n-12- \nQ And  what  was  your  normal  work  schedule  each  day,  the \nhours that you would work? \n \nA From 7:00 a.m. to 3:30 p.m. \n \nQ And were you instructed by a superior about where to start \ncleaning each day? \n \nA Yes. \n \nQ And who was that? \n \nA Jake. \n \nQ And if you wanted to clean the PKA house in the morning \nand  the  Duncan  Street  Apartments  in  the  afternoon,  did  you  have \nthat flexibility? Could you make that decision? \n \nA No. \n \nQ And   how   would   you   get   from   the   Duncan   Street \nApartments to the PKA house? \n \nA In my car. \n \nQ And  did  you  drive  alone  or  did  you  transport  your  co-\nworker? \n \nA I will transport my co-worker. \n \nQ And how many days a week did you work? \n \nA Monday through Friday. \n \nQ Did you ever work on the weekends? \n \nA Yes. It was not the norm, but there were some days. \n \nQ And do you know what would cause you to be called in on \na weekend? \n \nA That some other building needed cleaning, like the Pomfret. \n \nQ And how much did you make per hour? \n \n\nEscobedo – H104889 \n \n-13- \nA Usually it was 10. \n \n The claimant was also questioned on direct examination about the incident she alleges to \nhave  caused  a  compensable  left  knee  injury  on  November  12,  2019,  and  her  reporting  of  that \ninjury as follows. \nQ Now, what happened on November 12\nth\n of 2019? \n \nA I went to clean the office first and then I went to PKA and \nafter I parked the car and I was getting out of the car, that is when I \nslipped and fell. \n \nQ And what did you land on when you fell? \n \nA I landed on my knee. \n \nQ Which knee? \n \nA The left one. \n \nQ And  did  you  have  someone  in  the  car  with  you  at  that \npoint? \n \nA Yes, Maria. \n \nQ And did she get out of the car to see what was wrong with \nyou? \n \nA Yes.  It was not immediately because she was seated in the \nback.  The  back  door  had  the  child  lock  on  it,  so  I  was  going  to \nopen  up  her  door.  When  she  realized  that  I  wasn’t  opening  her \ndoor, she went through the front and opened the door and saw that \nI had fell. \n \nQ Did you report the accident to Jake? \n \nA Yes. \n \nQ And how did you do that? \n \nA I sent him a text. \n \nQ And did you send a picture of your knee? \n\nEscobedo – H104889 \n \n-14- \n \nA Yes. \n \nA copy of the text message, response, and photographs sent to and from Rodney Harris are found \nat Claimant’s Exhibit 4, pages 1-15. \n Respondent  1  JJS  did  not  send  the  claimant  for  any  form  of  medical  treatment.  Instead, \nthe  claimant  went  that  same  day  to  Community  Clinic  at  her  own  expense.  The  claimant  was \nseen  by Maurice  Jones,  PA.  At  that  time,  the  claimant  reported  left  knee  pain,  swelling,  and \nbruising. Her left knee was x-rayed which showed inflammation in the left knee and the claimant \nwas to return on an as needed basis.  \n On  March  3,  2020,  the  claimant  was  seen  at  Community  Clinic  in  Springdale  by  Dr. \nClaire Servy. The claimant continued to complain of left knee pain. Dr. Servy ordered an MRI of \nthe  claimant’s  left  knee  at  that  time.  The  claimant  testified  on  direct  examination  that  she  was \nunable  to  afford  the  MRI  until  her  husband  had  saved  up  enough  money  to  pay  for  it.  On \nSeptember 21, 2020, the claimant was able to receive an MRI of the left knee at MANA Medical \nAssociates.  The  diagnostic  report  from  the  MRI  was  authored  by  Dr.  Benjamin  Lowery. \nFollowing is a portion of that report. \nIMPRESSION: \n1.  Oblique  tear  involving  the  posterior  horn/body  the  medial \nmeniscus extending to the tibial articular surface. \n2.  Mild  thickening  involving  the  proximal  fibers  of  the  medial \ncollateral ligament could represent an old sprain. \n3. Trace joint effusion. \n \n On  November  9,  2020,  the  claimant  was  seen  at  Advanced  Orthopedic  Specialists  for \ntreatment  of  her  left  knee  medial  meniscus  tear.  On  November  19,  2020,  the  claimant  returned \nand received a steroid injection in her left knee. The claimant continued a course of conservative \ntreatment into 2021 which included physical therapy.  \n\nEscobedo – H104889 \n \n-15- \n On  May  18,  2021,  the  claimant  was  seen  by  Dr.  Chris  Arnold  at  Advanced  Orthopedic \nSpecialists  for  her  left  knee  difficulties.  At  that  time,  Dr.  Arnold  recommended  arthroscopic \nsurgical intervention of the claimant’s left knee.  \n On June 18, 2021, the claimant again saw Dr. Servy. At that time, the claimant requested \na referral for left knee surgery to Mercy due to  her lack of insurance. The  claimant was seen at \nMercy Clinic Orthopedics and Sports on July 28, 2021, by Corey Carver, PA. The claimant was \ngiven a left knee injection and was told to return with her MRI in one month. The claimant saw \nPA  Carver  again  on  August  25,  2021,  reporting  improvement  since  her  left  knee  injection.  The \nclaimant’s MRI was reviewed, and she was assessed with a left knee medial meniscus tear. \n The claimant was offered additional conservative care including continuing to brace her \nleft  knee,  weight  loss  and  injections  or  to  follow  up  with  Dr.  Kaler  for  surgical  options.  The \nclaimant has continued with conservative care to the best she could afford it. \n On  October  21,  2022,  Dr.  Claire  Servy,  whose  deposition  is  part  of  the  record  in  this \nmatter,  authored  a  letter  regarding  the  claimant’s  left  knee “To  Whom  It  May  Concern.”  The \nbody of the letter follows. \nI am writing on behalf of Ruth Escobedo (DOB, 08/02/1984), who \nis  an  established  patient  at  Community  Clinic.  Ruth  has  been \nknown  to  me  and  under  my  care  since  December  2016.  Mrs. \nEscobedo requested that I write a letter in support of her court case \ndiscussing a meniscal tear in the left knee and a cartilage tear in the \nright knee. In 2019 Ruth sustained a fall on ice while at work. She \ninitially  saw  Maurice  Jones,  P.A.,  a  provider  at  the  community \nclinic, and was prescribed an anti-inflammatory  medication which \ndid  not  help.  Ruth  was  seen  by  me  in  March  2020  for  low  back \npain  and  bilateral  leg  weakness  and  was  referred  to  Jennifer \nTinker,  a  physical  therapist  here  at  the  community  clinic  who \nreported  back  stiffness  and  bilateral  low  back  pain  with  left \nsciatica.    In    2021    she    was    seen    by    an    orthopedist    who \nrecommended surgery or physical therapy for bilateral knee issues. \nAt  the  time  Ruth  opted  for  physical  therapy  due  to  the  cost  of \n\nEscobedo – H104889 \n \n-16- \nsurgery  as  she  is  uninsured.  Mrs.  Escobedo  was  seen  by  physical \ntherapist   recurrently   for   treatment   for   this   without   sufficient \nimprovement.   Ruth   has   also   had   unsuccessful   treatment   with \nmedications and joint injections. \nMs. Escobedo has been unable to work since the  accident and has \nhad progressive worsening of pain the b/l knees and now in the low \nback. Pt is unable to stand for extended periods and is unable to lift \nheavy objects since the accident. \nMRI  performed  in  December  2021  showed  degenerative  disc \ndisease  of  L3-L4  and  L5-S1,  and “curvillnear  low  signal  intensity \nidentified  within  the  S1  vertebra  best  appreciated  on  sagittal \nimaging may represent an old nondisplaced fracture in this patient \nwith a history of fall 2 years ago.” \nThank  you  for  participating  in  this  patient’s  care.  Please  do  not \nhesitate to contact us with any questions. \n \n It is the claimant’s burden to prove that she sustained a compensable left knee injury on \nNovember 12, 2019. In order to do so, the claimant must show the presence of objective medical \nevidence of  a left knee injury. Here, the  claimant is able to do so in the form of her September \n21, 2020, left knee MRI  which showed a medial meniscus tear. That finding was confirmed by \nDr. Arnold in his May 18, 2021, visit note with the claimant. \n The claimant was enroute from the Duncan Street Apartments where she and her cleaning \npartner had begun their workday cleaning when she fell. The claimant drove her car and gave her \ncleaning  partner  a  ride  to  the  PKA  facility  on  Respondent  2  U  of  A’s  campus.  The  claimant \narrived at the PKA facility, exited her car and fell before entering the PKA facility to clean. Even \nthough the claimant was not cleaning at the time of her fall, she was moving from one job duty to \nthe  next  and  transporting  another  of  Respondent  1  JJS’s  employees  for  the  same  purpose.  The \nclaimant was performing employment services when she fell and  directly furthering the interest \nof her employer. \n A causal  connection must also be shown by the  claimant between her objective medical \nfindings and the incident she alleges to have caused her compensable left knee injury. Here, the \n\nEscobedo – H104889 \n \n-17- \nclaimant immediately reported her fall via text and provided pictures to Respondent 1 JJS within \nminutes after her fall. The  claimant went to the doctor’s office that same day, reporting her left \nknee injury at her own expense. The  claimant continued to seek treatment since the time of her \ninjury even without the benefit of insurance. I find the claimant’s testimony to be truthful as her \ntestimony  is  in  line  with  the  medical  evidence  presented  and  frankly  the  testimony  of  Rodney \nHarris.  The  claimant  is  able  to  prove  that  she  sustained  a  compensable  left  knee  injury  on \nNovember 12, 2019, while performing employment services for Respondent 1 JJS. \n After  a  review  of  the  medical  treatment  regarding  the  claimant’s  left  knee  placed  into \nevidence,  I  find  all  that  treatment  reasonable  and  necessary  treatment  for  her  compensable left \nknee  injury.  I  also  find  the  surgical  intervention  and  treatment  proposed  by  Dr.  Arnold  to  be \nreasonable and necessary medical treatment for the claimant’s compensable left knee injury. \n The claimant has asked the Commission to determine if she is entitled to temporary total \ndisability benefits from January 10, 2021, to a date yet to be determined. On direct examination, \nthe  claimant  gave  testimony  about  her  time  off  work,  the  difficulties  she  was  having  with  her \nwork, and the end of her employment as follows. \nQ [BY  MS.  BROOKS]:  Were  you  off  for  a  period  of  time \nbefore you tried to return to work? \n \nA Yes, two days. \n \nQ And after those two days, did you return to work? \n \nA That’s correct. \n \nQ And how was your knee doing when you returned? \n \nA It was messed up. It was bad. \n \nQ Okay.  Did  you  have  trouble  doing  your  work  because  of \nthe knee? \n\nEscobedo – H104889 \n \n-18- \n \nA That is correct. \n \nQ Did you have to change your work in any way? \n \nA Yes. \n \nQ And in what way? \n \nA Like for example, when I was cleaning the stairs, instead of \ngoing upwards, I had to go downwards. \n \nQ And at some point did you stop working? \n \nA What  do  you  mean?  Like  if  I  had  to  stop  working  during \nthe day so I could take a break or what? \n \nQ Well, answer that, did you take breaks? \n \nA I tried to do as much work as  I could possibly do and then \nafter  I was done  and  I felt like I couldn’t go on any longer, then I \nwould sit down and take a break. \n \nQ Okay. And at some point did your work end? \n \nA Yes. \n \nQ And how did that happen? \n \nA Because I had a problem with my co-worker and I had told \nhim and they didn’t do anything. \n \nQ You told who? \n \nA Jake. \n \nQ Go ahead. How did it affect your work? \n \nA Supposedly  he  was  going  to  be  taking  Maria  away,  but  in \nthe end it was me who was sent to a different building. \n \nQ And what building was that? \n \nA The Pomfret. I really don’t remember. I am really not sure. \n \n\nEscobedo – H104889 \n \n-19- \nQ And did you go work at that building? \n \nA I did go that day. \n \nQ And were you able to do the work? \n \nA I  tried  to  hold  on  for  as  long  as  I  could,  but  it  was  very \nheavy work. \n \nQ And what made it heavy work? \n \nA You had to walk a lot and there were stairs. \n \nQ Okay. And how did that affect your knee, your left knee? \n \nA It was very, very swollen and the pain was insufferable. \n \n On  cross  examination  by  Respondent  3 AJ’s  attorney,  the  claimant  was  asked  about \ncontinuing  to  work  after  her  November  12,  2019,  injury,  and  the  end  of  her  employment  as \nfollows. \nQ Now, you told us you missed two days from work after this \nevent. \n \nA Yes, the ones that the doctor said. \n \nQ And   then   you   went   back   to   cleaning   like   you   had \npreviously? \n \nA Yes. \n \nQ And  you  did  that  up  until  apparently  you  had  a  problem \nwith the co-worker; is that correct? \n \nA Yes. \n \nQ Okay.  Now,  the  way  that  problem  was  resolved  was  to \nmove you to a different location to work; correct? \n \nA Well, I left so I could speak to Jake. \n \nQ And  eventually  you  were  moved  to  another  location  to \nclean? \n\nEscobedo – H104889 \n \n-20- \n \nA I  was  asked  if  I –  I  was  asked –  it  was  Karina.  I  spoke  to \nKarina about it  because  I said  I needed – that it was a lot to clean \nin  that  building  and  that  I  had  already  spoke  to  Jake  because  my \nknee was hurting. He knew that I had fallen. \n \nQ That  is  not  what  I  asked.  You  had  a  dispute  with  a  co-\nworker; correct? \n \nA Yes. \n \nQ Okay.  Now,  up  until  the  time  of  that  dispute,  you  were \ncontinuing to work full time; correct? \n \nA Yes. \n \nQ And  in  resolution  of  that  dispute,  you  were  going  to  be \nmoved to another location to continue cleaning; correct? \n \nA Yes. \n \nQ Okay.  You  didn’t  like  that  other  location  and  you  quit; \ncorrect? \n \nA It  is  not  that  I  did  not  like  it.  It  was  because  of  my  knee. \nThere were too many stairs. It was too big. It was too much for me. \n \nQ You were asked in your deposition on Page 40 beginning at \nLine  9,  I  asked  you, “Did  you  quit  your  job  because  you  did  not \nwant to move to the other building?” And you answered, “Yes.” Is \nthat correct? \n \nA It  is  not  that  I  don’t  like  it.  I  could  do  the  job  if  my  knee \nwas good. \n \nQ Because  you  had  been  working  full  time  at  the  Pike  house \npreviously? \n \nA Yeah, I did what I could. \n \nQ In  fact,  you  asked  to  go  back  to  the  Pike  house  and \ncontinue to work, but you were not offered that position? \n \nA No. Yes. No. What happened was that I was with Jake and \nKarina  on  Jake’s  car  and  I  told  him  that  I  had  fallen  and  that  my \n\nEscobedo – H104889 \n \n-21- \nknee was hurting and he started yelling to Karina saying that he did \nnot know, that I had not told him, that no one had told him. \n \nQ Well,  we  are  beyond  that  because  you  continued  to  work \nfor a significant period of time until this dispute with a co-worker. \n \nA But I couldn’t take the pain anymore. I was just waiting for \nmy  appointment  with my  doctor.  Even  if  I  had  not  had  a  problem \nwith  her  or  with  anyone,  I  would  not  have  been  able  to  keep  on \nworking because the pain in my knee was just too much. \n \nQ So you did or didn’t quit your job because you were moved \nto another building as your testimony previously says? \n \nA I  did,  but  it  was  because  I  would  not  have  been  able  to  do \nmy job because of the pain in my knee. \n \nQ So  when  you  told  us  earlier  in  the  questioning  by  your \nattorney  that  you  asked  to  go  back  to  the  Pike  house  to  work,  is \nthat right or wrong? \n \nA That is true. \n \n The  claimant  was  seen  by  Dr.  Servy,  who  is  a  family  doctor,  on  several  occasions \nregarding her left knee. Medical records introduced into evidence do not show any work or other \nrestrictions being placed on the claimant by Dr. Servy. That fact is confirmed by her deposition \ntestimony as follows. \nQ Okay.  Doctor,  just  so  that  I’m  clear,  throughout  the  time \nthat  you’ve  treated  her  since  2016,  you  have  not  ever  limited  or \nrestricted her activities; correct? \n \nA Correct. \n \nQ You have not even taken her off work or given her a release \nfrom work? \n \nA Correct. \n \nQ You  also  don’t  have  any  independent  knowledge  as  to \nwhether  she  continued  to  work  after  this  event  or  for  whatever \nreason she may have left work? \n\nEscobedo – H104889 \n \n-22- \n \nA Correct. \n \nQ If a patient comes in and is evaluated by you, a part of your \njob is to write down whatever they complain of; correct? \n \nA Yes. \n \nQ Whatever symptoms they may make or pain complaints? \n \nA Yes. \n \nQ And  you  use  those,  then,  to  investigate  that  particular \nproblem or what may be the cause of that complaint? \n \nA Right. \n \nQ And you did that on each one of your visits? \n \nA Yes. \n \n On cross examination by the claimant’s attorney, Dr. Servy was asked to speculate about \nif  she  would  have  placed  restrictions  on  the  claimant  had  she  known  the  claimant  had  a  torn \nmedial  meniscus  and  she  answered  in  the  affirmative.  However,  at  least  by  the  claimant’s  June \n18,  2021,  visit  with  Dr.  Servy,  she  knew  of  the  claimant’s  torn  medial  meniscus  because  she \ngave  the  claimant  a  referral  to  Mercy  for  left  knee  surgery  at  that  time.  Then,  nor  at  any  point \nafter,  did  Dr.  Servy  place  restrictions  on  the  claimant.  Dr.  Chris  Arnold,  who  is  an  orthopedic \nsurgeon, recommended surgery  for the  claimant but did not restrict her from work  or  activities. \nThe  claimant  was  also  seen  by Dr.  Ronald  Kaler  at  Mercy  Clinic  Orthopedics  and  Sports  in \nRogers  at  the  referral  of  Dr.  Servy  and  he  also,  did  not  place  restrictions  upon  the  claimant.  In \nfact, no restrictions have ever been placed on the claimant by a medical provider before or after \nher employment with Respondent 1 JJS ended.  \n\nEscobedo – H104889 \n \n-23- \n When considering the claimant’s testimony about the end of her  employment I find that \nthe  claimant  left  her  employment  because  she  was  unhappy  with  being  moved  to  a  different \nbuilding, not due to reasons related to her compensable left knee injury. The claimant has not, as \nof  the  time  of  the  hearing  in  this  matter  or  before,  been  restricted  in  any  capacity  by  a  medical \nprovider and she has been seen by several medical providers in that time period. The claimant’s \nlack of restrictions, along with the claimant’s ability to work until she became unhappy, and her \nwillingness  to  continue  to  work  if  she  got  her  way,  demonstrate  the  claimant’s  ability  to  work, \nwhich greatly weakens her testimony that she could not do so. The claimant is not able to prove \nthat she is entitled to temporary total disability benefits from January 10, 2021, to a date yet to be \ndetermined.  \n The issues of attorney’s fee and compensation rates are moot as the claimant has not been \nawarded any indemnity benefits in this matter. \n Respondent 2 U of A and Respondent 3 AJ have raised the Notice Defense in this matter. \nBoth are moot for different reasons. \n Respondent 2 U of A’s Notice Defense is moot in that they have no liability in this matter \nas  they  are  not  an  employer,  prime  contractor,  or  subcontractor.  Instead,  they  are  a  third  party \ninvolved without liability. \n Respondent  3  AJ’s  Notice  Defense  is  moot  in  that  Respondent  3  AJ  is  not  a  traditional \nemployer under the Workers’ Compensation Act. While Respondent 3 AJ does have liability in \nthis  matter,  that  liability  is  found in  ACA  §11-9-402  where  Respondent  3  AJ  finds  itself  in  the \nshoes  of  Respondent  1  JJS,  the  uninsured  subcontractor  who  most  certainly  did  have  notice \nalmost immediately after the claimant’s compensable left knee injury occurred on November 12, \n2019. \n\nEscobedo – H104889 \n \n-24- \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nApril 6, 2022, and contained in a Pre-hearing Order filed  April 6, 2022, are hereby  accepted as \nfact. \n 2. The claimant proved by a preponderance of the evidence that Respondent No. 1, Jake’s \nJanitorial  Services,  and  the  claimant  had  an  employee/employer  relationship  on  November  12, \n2019. \n 3. The claimant failed to prove by a preponderance  of the evidence that Respondent No. \n2, the University of Arkansas, and the claimant had an employee/employer relationship. \n 4. The claimant failed to prove by a preponderance of the evidence that Respondent No. \n3, Absolute Janitorial, and the claimant had an employee/employment relationship. \n 5.  The  claimant  proved  by  a  preponderance  of  the  evidence  that  Respondent  No.  3, \nAbsolute  Janitorial,  has  liability  for  any  and  all  compensation  awarded  to  the  claimant  through \nher  employee/employer  relationship  with  Respondent  No.  1,  Jake’s  Janitorial  Services,  for  her \nNovember 12, 2019, compensable left knee injury under ACA §11-9-402. \n 6.  The  claimant  proved  by a preponderance  of  the  evidence  that  she  sustained  a \ncompensable  injury  to  her  left  knee  on  November  12,  2019,  while  an  employee  of  Respondent \nNo. 1, Jake’s Janitorial Services. \n\nEscobedo – H104889 \n \n-25- \n 7.  The  claimant  proved  by  a  preponderance  of  the  evidence  that  medical  treatment \nadmitted  into  evidence  by  the  parties  is  reasonable  and  necessary medical  treatment  for  the \nclaimant’s  compensable  left  knee  injury.  The  claimant  also  proved  by  a  preponderance  of  the \nevidence   that   the   medical   treatment   recommended   by   Dr.   Arnold,   including   surgical \nintervention, is reasonable and necessary treatment.  \n 8. The claimant failed to prove by a preponderance of the evidence that she is entitled to \ntemporary total disability benefits from January 10, 2021, to a date yet to be determined.  \n 9. The issues of attorney’s fees and compensation rates are moot. \n 10.  The  defense  of  Notice  raised  by  Respondent  No.  2,  the  University  of  Arkansas,  and \nRespondent No. 3, Absolute Janitorial, are moot. \n ORDER \nRespondent No. 1, Jake’s Janitorial Services, shall pay for the  reasonable and necessary \ntreatment  of  the  claimant’s  compensable  left  knee  injury,  including  reimbursement  to  the \nclaimant for all reasonable and necessary medical expenses incurred by the claimant. Respondent \nNo. 3, Absolute Janitorial, is liable to the claimant for compensation under ACA §11-9-402. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                       \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":44821,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H104889 RUTH ESCOBEDO, Employee CLAIMANT JAKE’S JANITORIAL SERVICES, Uninsured Employer RESPONDENT NO. 1 UNIVERSITY OF ARKANSAS, Employer RESPONDENT NO. 2 PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT NO. 2 ABSOLUTE JANITORIAL, Uninsured Employer RESPON...","outcome":"denied","outcomeKeywords":["granted:2","denied:3"],"injuryKeywords":["knee","back","sprain","fracture"],"fetchedAt":"2026-05-19T23:05:56.361Z"},{"id":"alj-G805579-2023-06-01","awccNumber":"G805579","decisionDate":"2023-06-01","decisionYear":2023,"opinionType":"alj","claimantName":"Keny Sosa","employerName":"Kawneer Company Inc","title":"SOSA VS. KAWNEER COMPANY INC. AWCC# G805579 JUNE 1, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SOSA_KENY_G805579_20230601.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SOSA_KENY_G805579_20230601.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G805579 \n \nKENY SOSA, EMPLOYEE   CLAIMANT \n \nKAWNEER COMPANY INC., EMPLOYER RESPONDENT#1 \n \nHELMSMAN MANAGEMENT SERVICES LLC, INSURANCE CARRIER RESPONDENT#1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND                                 RESPONDENT#2 \n \nOPINION/ORDER FILED JUNE 1, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents #1 are represented by RICK BEHRING, JR., Attorney, Little Rock, Arkansas. \n \nRespondent #2 is represented by CHRISY L. KING, Attorney, Little Rock, Arkansas; although not \nappearing. \n \nOPINION/ORDER \n \n On August 21, 2018, claimant filed a Form AR-C, alleging that on July 23, 2018, he had injured \nhis left knee and his back.  He was subsequently represented by Ms. Evelyn Brooks. The parties agreed \nthat  claimant suffered  compensable  injuries.    A  full  hearing  before Administrative  Law  Judge  Amy \nGrimes  was  conducted  on  October  1,  2020,  on  the  issues  of  whether  claimant  was  entitled  to \nadditional  medical  treatment  for  his  back  injury  by  Dr.  James  Blankenship,  including  surgery,  and \nwhether Claimant was entitled to temporary total disability benefits from April 1, 2019, to a date yet \nto be determined.  All other issues were reserved.  \nAn opinion was issued by Administrative Law Judge Katie Anderson on January 28, 2021, as \nJudge Grimes was no longer serving as an ALJ as of December 31, 2020.   Judge Anderson denied \n\nSosa-G805579 \n \n2 \n \nclaimant’s request for additional medical treatment by Dr. Blankenship, and further denied his request \nfor temporary total disability benefits.   \nClaimant  appealed  this  decision  to  the  Full  Commission,  which  affirmed  and  adopted  the \ndecision of the ALJ on July 13, 2021 (Commissioner Willhite dissenting).   That decision was appealed \nto the Arkansas Court of Appeals, and affirmed on May 4, 2022, Sosa v. Kawneer Co., 2022 Ark. App. \n195, 645 S.W.3d 26, 2022 Ark. App. LEXIS 198.  \nOn June 20, 2022, claimant filed a second Form AR-C, again alleging a compensable injury on \nJuly 23, 2018.  This AR-C form specified that this claim was for the left shoulder and left knee, omitting \nany reference to the back injury that had previously been litigated.  Claimant was still represented by \nMs. Brooks at that time.  However, Ms. Brooks subsequently filed a Motion to Withdraw, which was \ngranted on July 15, 2022; no other attorney entered an appearance on claimant’s behalf.  \nOn January 18, 2023, respondent #1 filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time.    A hearing on respondent’s Motion to Dismiss was scheduled for \nMarch  16,  2023.   Notice of  the  scheduled  hearing was  sent  to  claimant  by certified  mail at  the  last \nknown address in the Commission’s file.  The notice was  received  by  claimant;  in  a  letter  dated \nFebruary 1, 2023, claimant objected to this matter being dismissed.   Claimant was instructed to file a \nprehearing  questionnaire, and  he  did  so  on  March 7,  2023.     A  prehearing  conference  was  held  on \nApril 13, 2023, after which respondent #1 filed an Amended Motion to Dismiss, requesting that this \nmatter be dismissed with prejudice.  The Amended Motion to Dismiss was rescheduled for a hearing \non May 18, 2023. \nAt the hearing, the following exchange took place between the Court, claimant, and counsel \nfor respondent #1:  \n\nSosa-G805579 \n \n3 \n \n The Court:   I'm looking at the transcript of the hearing that \ntook place on October 1, 2020, and the issues that were litigated at that \nhearing. I'll just read them into the record:  \n“The issues to be litigated here today or whether the claimant \nis entitled to medical treatment by Dr Blankenship including a surgery \nwhether claimant is entitled to temporary total disability benefits from \nApril 1, 2019 to a date to be determined and an attorney's fee.” \nAre  you  asking  today  to  be  reimbursed  for  time  you \nmissed   from   work   because   of   the   back   surgery   and   Dr \nBlankenship's  bills  for  the  back  injury?  Is  that  what  you're \nasking?  \n \nClaimant: I'm  asking  for  reimbursement  of  the  back \nsurgery and the time that I have been off since the last time they \npaid me. \n \nThe  Court:  Your AR-C  form  says  you  injured  your  left \nshoulder  and  left  knee  while  working.  It  doesn't  mention  the  back \ninjury. \n \nClaimant: Who wrote this though? \n \nThe Court: Your attorney at the time \n \nClaimant: She probably did but, on the paper, there was - when \nthey took me to the medical thing, I have it on file right here where it \nsays my back was mentioned the first time. \n \nThe Court: But I just read to you that in October 2020 it was \nannounced, probably in this room, that you were litigating your back \ncase in 2020. You heard me read that. That was all that was litigated \nwas the back injury. You're telling me today you want to relitigate \nthe back injury. Right? \n \nClaimant: Correct. Well, right here at first of the C form on \npage one Evelyn Brooks made a mistake and she didn't write my \nback on it but – \n \nThe Court: I can't speak for Ms. Brooks, but I can tell you she \nknew in June of 2022 you cannot relitigate your back injury because it's \nalready  been  litigated  and  decided  by  the  Full  Commission  and  the \nCourt of Appeals.  Even though you don't agree with their decision, a \ndecision on that has been made.  Mr. Behring,  what is your position \non relitigating the back injury? \n \n\nSosa-G805579 \n \n4 \n \nMr. Behring: That it is barred by res judicata and is- \n \nThe Court:  Let's not use a Latin term. I know what the phrase \nmeans.  \n \nMr.  Behring:    I'm  sorry,  Your  Honor.  it  has  already  been \nlitigated. It has already been decided and under the law, once you do \nthat once, you don't get to do it again.  \n \nThe Court:  I have in front of me the decision from the Court \nof Appeals that says, “Mr. Sosa first contends that substantial evidence \ndoes not support the Commission's finding that the back surgery is not \nreasonably  necessary  in  connection  with  his  admittedly compensable \ninjury by the Court.”...  \nLet me quote again from the Court of Appeals. This is page 5 \nof  the  Court  of  Appeals  decision.  \"The  commission  determined \nthat  Sosa  failed  to  prove  that  back  surgery  by  Dr  Blankenship \nwas  reasonably  necessary  in  connection  with  his  compensable \nback injury or that he was entitled to additional temporary total \ndisability  benefits  for  his  back  injury.  That's  what  Judge  Grimes \nfound,  that's  what  the  Full  Commission  found,  and  that's  what  the \nCourt of Appeals found, that you had failed to prove your back injury \nwas connected with your work.  (Emphasis added) \n \nAlthough the AR-C form filed on June 20, 2022, requested benefits for an injury only to his \nleft shoulder and left knee, claimant clearly stated that he sought reimbursement for the cost of a back \nsurgery he had in November 2021, and for compensation from time off work due to that surgery.  His \nstatements at the hearing on the motion to dismiss did not mention his shoulder nor his knee injury.  \nIn  his  prehearing  questionnaire,  he  listed  only Dr. Blankenship’s notes  regarding  the  November  1, \n2021 back  surgery  as  those  he  would  bring  to  the  hearing.    As  set  forth  above,  claimant  answered \naffirmatively when asked if he was trying to relitigate his back injury claim.  As I explained to him at \nthe hearing, relitigating this matter is not allowed under Arkansas law.  For that reason, and without \n\nSosa-G805579 \n \n5 \n \naddressing respondent’s  argument  pursuant  to  §11-9-702  (a)(4)  and  (d),\n1\n  I  find  that  the  Motion  to \nDismiss  with  prejudice  on  the  grounds  that  this  particular  injury  has  been  previously  litigated  and \ndecided in respondent #1’s favor should be granted.  \nIn  its  Amended  Motion  to  Dismiss, Respondent  #1  sought sanctions  under  §11-9-717 and \nRule  11  of  the  Arkansas Rules  of  Civil  Procedure  for  bringing  this  action.  I  understand  why  such \nsanctions were sought, but I am going to decline to impose sanctions at this time. Claimant is not an \nattorney, and I do not expect him to fully understand the application of res judicata. I find it hard to \nbelieve that his attorney did not explain to him why the back injury was not included in the second \nAR-C form filed on his behalf on June 20, 2022; Ms. Brooks undoubtedly knew the back injury claim \ncould not be relitigated, because of its omission from the AR-C filed after the decision by the Arkansas \nCourt of Appeals.  However, there is no evidence presented that claimant had been made aware of \nthe bar to additional litigation.  At the hearing, claimant said “the surgery now serves as new evidence \nsupporting my case...”  Indeed, the surgery took place five months after the decision by the Court of \nAppeals, and I do not find he acted in bad faith in believing the subsequent surgery was relevant to \nhis  claim.    However,  there  is  now  no  doubt  claimant  has  been  made  aware  of  the  finality  of  the \nprevious litigation and can expect sanctions if any further action is taken regarding this claim.  \nThis matter is hereby dismissed with prejudice.  \nIT IS SO ORDERED. \n  \n                 _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE \n \n \n1\n While it was unnecessary for me to decide if a dismissal pursuant to these statutes was  appropriate, I  note that it had \nbeen over six months since the AR-C of June 20, 2022, was  submitted and when respondent’s Motion to Dismiss was \nfiled.","textLength":9997,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G805579 KENY SOSA, EMPLOYEE CLAIMANT KAWNEER COMPANY INC., EMPLOYER RESPONDENT#1 HELMSMAN MANAGEMENT SERVICES LLC, INSURANCE CARRIER RESPONDENT#1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT#2 OPINION/ORDER FILED JUNE 1, 2023 Hearing before ADMI...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["knee","back","shoulder"],"fetchedAt":"2026-05-19T23:05:54.279Z"},{"id":"full_commission-G901705-2023-05-31","awccNumber":"G901705","decisionDate":"2023-05-31","decisionYear":2023,"opinionType":"full_commission","claimantName":"Steven Carrick","employerName":"Baptist Health","title":"CARRICK VS. BAPTIST HEALTH AWCC# G901705 MAY 31, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Carrick_Steven_G901705_20230531.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Carrick_Steven_G901705_20230531.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G901705  \n \nSTEVEN C. CARRICK, \nEMPLOYEE \n \nCLAIMANT \nBAPTIST HEALTH,  EMPLOYER \n \nRESPONDENT \nCLAIMS ADMINISTRATIVE SERVICES, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2 \n  \n      \nOPINION FILED MAY 31, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents No. 1 represented by the HONORABLE JARROD S. \nPARRISH, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID L. PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nDecember 21, 2022.  The administrative law judge found that the claimant \nfailed to prove he was entitled to additional medical treatment.  After \nreviewing the entire record de novo, the Full Commission finds that the \nadditional medical treatment sought by the claimant is unauthorized in \naccordance with Ark. Code Ann. §11-9-514(Repl. 2012).         \nI.  HISTORY \n\nCARRICK - G901705  2\n  \n \n \n The record indicates that Steven Carrick, now age 34, became \nemployed as a Food Service worker for the respondents, Baptist Health, on \nSeptember 17, 2018.  The parties stipulated that the employee-employer \nrelationship existed on November 21, 2018, “the date of the claimed injury.”  \nThe pro se claimant testified: \nMR. CARRICK:  Well, November 21, 2018 at approximately \n6:56 p.m. I was performing my closing duties, which consists \nof cleaning up the area.  And we have four-wheeler coolers \nthat are plugged into the ceiling panel that we have... \nSo I attended to my closing duties and we moved that four-\nwheeler cooler and we closed those joints so that the product \ncan remain cold for the next shift.  And as I was moving that \ncooler the ceiling fell, along with a metal shard fell, and struck \nmy right upper arm, along with the shoulder region.   \n \n The parties stipulated that the claimant “sustained a compensable \nwork-related right shoulder contusion when an acoustical panel fell on him” \non November 21, 2018. \n The claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF \nINJURY, on November 26, 2018.  The Accident Information section of the \nForm AR-N indicated that the Date of Accident was November 21, 2018 \nand that the claimant injured his “Right upper arm.”  The claimant appeared \nto write, “roof fell on top of me” on November 21, 2018, and that the \naccident occurred while he was performing employment services.   \n According to the record, the claimant treated at CHI St. Vincent on \nNovember 26, 2018.  Dr. Chen Wang noted “1.  SORE RIGHT UPPER \n\nCARRICK - G901705  3\n  \n \n \nARM – ceiling tile fell and hit him on right shoulder and upper arm on Wed \nNov 21....Pt. presents with c/o a contusion to his right upper arm from a \nfalling ceiling tile 4 days ago.  Report the arm is still tender but denies any \nswelling, weakness/numbness or ROM limitations....right upper arm with a \nsmall area of ecchymosis at the lateral portion of biceps with local ttp, no \nedema or other palpable abnormalities, shoulder/elbow rom is full.”   \n Dr. Wang assessed “1.  Right arm pain....Looks like a minor \ncontusion.  F/u if any persistent issues.\"  Dr. Wang prescribed medication, \nand he released the claimant to return to regular work effective November \n28, 2018.  The parties stipulated that the claimant “returned to work” on \nNovember 28, 2018. \nChristopher Vinson, APRN saw the claimant at CHI St. Vincent on \nJanuary 28, 2019:  “Pt is a 30 yr old male who reports that a piece of ceiling \ntile fell on his right upper arm at work at Baptist Hosp. in the cafeteria back \nin November and his arm hurts intermittently when bumped since that time.”  \nMr. Vinson assessed “1.  Right upper limb pain.”   \n The parties stipulated that the claimant “resigned from work” on \nFebruary 18, 2019. \n The claimant signed a Form AR-C, CLAIM FOR COMPENSATION, \non March 7, 2019.  The Accident Information Section of the Form AR-C \nindicated that the date of accident was November 21, 2018, “As I was \n\nCARRICK - G901705  4\n  \n \n \nmoving the cooler which is plugged into the outlet in the roof, the roof fell on \ntop of me, injurying (sic) my upper right arm, huge bruise lots of pain.”   \n The claimant signed another Form AR-C, CLAIM FOR \nCOMPENSATION, on March 22, 2019.  The Accident Information section of \nthe Form AR-C indicated, “Claimant was getting food for a patient from the \noverhead cooler when the overhead cooler fell on the Claimant.  He \nsustained injuries to his right shoulder and other whole body.”  The Claim \nInformation section of the Form AR-C indicated that the claim was for \n“initial” benefits to include Medical Expenses, and that the claim was for \n“additional” benefits to include Additional Medical Expenses. \n The respondents arranged for Dr. Victor Vargas to treat the claimant.  \nDr. Vargas first examined the claimant on April 2, 2019:  “In brief, the \npatient presents to my clinic for the first time to have evaluation of right \nshoulder pain....Ecchymosis:  negative....The x-rays of the right shoulder, \nAP, axial of the scapula, axillary view were done in the clinic today, \nreviewed, and interpreted that showed acceptable subacromial space, \nacromion type I, no significant osteoarthritis of the acromioclavicular joint.”   \n Dr. Vargas assessed “Right Shoulder pain” and “Right Subacromial \nimpingement with bursitis.”  Dr. Vargas planned physical therapy, and he \nreturned the claimant to full work duty with no restrictions.  The record \nindicates that the claimant was provided an extended series of physical \n\nCARRICK - G901705  5\n  \n \n \ntherapy visits beginning April 8, 2019.  The claimant followed up with Dr. \nVargas on April 29, 2019:  “Patient stated that he is doing physical therapy \nand he feels improved.  No pain, no swelling.  The patient stated that he is \nnot working currently because he has no job.”  Dr. Vargas assessed “Right \nShoulder pain improved....The patient has no restrictions and can work on \nfull duty.”  Dr. Vargas assigned the claimant a 0% permanent impairment.   \n The claimant returned to Dr. Vargas on July 12, 2019: \nThe patient presented again to my clinic for an evaluation and \na pain in the shoulder after being released at MMI.   \nThe patient improved with conservative treatment and \ntherapy, now he has a relapse of the pain and is not clear \nexactly if he has a pathology related to the accident that he \nsustained at work or he has some independent pathology in \nthe right shoulder that is causing his pain.   \nAt this point I am considering that the patient required MRI of \nthe right shoulder to have objective findings of injury that \neventually guide further treatment and recommendation.  We \nwill follow up after the MRI. \n \n Dr. Vargas assessed “Pain of right shoulder joint.”   \n The record contains a Change of Physician Order dated July 22, \n2019:  “A change of physician is hereby approved by the Arkansas \nWorkers’ Compensation Commission for Steven Carrick to change from Dr. \nVictor Vargas to Dr. Shahryar Ahmadi[.]”  The claimant treated with Dr. \nAhmadi beginning August 21, 2019.  Dr. Ahmadi arranged for an MRI of the \nclaimant’s right shoulder, which was taken on August 21, 2019 with the \nfollowing impression:  “No intra-articular abnormality noted within the right \n\nCARRICK - G901705  6\n  \n \n \nshoulder articulation.  Focal subcutaneous fat contusion and mild focal \ndeltoid musculature strain in this patient with history of prior direct injury.”   \n Dr. Ahmadi reported on September 18, 2019:  “Patient is a 31-year-\nold man with right shoulder pain, normal MRI.  Ultrasound was reviewed \ntoday and discussed with the radiologist, no pathology was seen.  From an \northopedic standpoint, there is no pathology in the shoulder to warrant \nfurther treatment.  He can return to full activities as tolerated.  No need for \nfollow-up with us.” \n Dr. Ahmadi planned the following on October 22, 2019:  “In summary \nthis is a 31-year-old gentleman right shoulder pain without any finding on \nMRI or ultrasound.  At this point we do not have any reason to operate on \nthe patient so we are going to continue with conservative management.  We \ndid [a] new impairment rating for the patient based on passive range of \nmotion.  Patient has significant guarding and I do not know if this was due \nto pain or it was intentional.”     \n A pre-hearing order was filed on March 11, 2020.  According to the \ntext of the pre-hearing order, the claimant contended, “Claimant contends \nthat he is entitled to additional medical and payment of outstanding medical \nbills.  Claimant also contends that he is entitled to TTD and a permanent \npartial impairment rating or a wage loss.  Claimant contends that he \nresigned from work due to unsafe conditions.”  The respondents contended, \n\nCARRICK - G901705  7\n  \n \n \n“Respondents contend that all appropriate benefits have been paid and that \nadditional medical associated with claimant’s right shoulder injury is not \nreasonable and necessary.  Respondents also contend that indemnity \nbenefits are not due and owing with regard to the claim and that there are \nno objective findings to support any permanent impairment.”   \n The parties agreed to litigate the following issues:   \n1.  Additional Medical and payment of outstanding medical \nbills. \n2.  TTD. \n3.  Permanent partial disability rating or a wage loss.   \n \nThe claimant treated with Dr. William F. Hefley on April 29, 2020, \nand Dr. Hefley noted on May 20, 2020, “I spoke with Steven via phone call \ntoday as he had concerns regarding his medical records after his visit with \nus on 4/29/2020.  Patient reports he was not working on the ceiling when \nthe ceiling tile fell on him, but was moving a large cooler when the ceiling \ntile fell and hit his right shoulder.  He also informs me that the numbness \nand tingling in his hand has only happened 2-3 times, the last time was \nFebruary.  Steven does not want his neck evaluated, states all of the pain is \nin his shoulder.  He is wanting a repeat MRI (this time MR arthrogram).  Will \nobtain this imaging and have him return to discuss results.  He has tried \nmultiple rounds of PT and steroid injections, was released from UAMS ortho \nat MMI.” \n\nCARRICK - G901705  8\n  \n \n \nAfter a hearing, an administrative law judge filed an opinion on \nSeptember 15, 2020.  The administrative law judge found, among other \nthings, that the claimant did not prove additional medical treatment was \nreasonably necessary.  The administrative law judge found that the \nclaimant did not prove he was entitled to temporary total disability benefits, \nan anatomical impairment rating, or wage-loss disability.   \n The Full Commission affirmed and adopted the administrative law \njudge’s September 15, 2020 opinion in a decision filed January 5, 2021.  \nThe Arkansas Court of Appeals affirmed the Full Commission in an opinion \ndelivered March 16, 2022.  Carrick v. Baptist Health, 2022 Ark. App. 134, \n643 S.W.2d 466.  The Court of Appeals issued an order on April 20, 2022:  \n“APPELLANT’S PRO SE PETITION FOR REHEARING IS DENIED.”  \n The Arkansas Supreme Court issued an order on May 26, 2022:  \n“APPELLANT’S PRO SE PETITION FOR REVIEW IS DENIED.”   \n The claimant returned to CHI St. Vincent on June 30, 2022.  Dr. \nWilliam Joseph reported at that time: \nStephen is a 33-year-old male who relates a 4-year history of \nright shoulder pain.  He says he was struck on the shoulder by \nsome ceiling tiles and other materials.  He has increased pain \nwith abduction and rotation of the shoulder.  Pain with \nextension of the affected shoulder.... \nEXTREMITIES:  Tenderness of the upper deltoid region of the \nright shoulder.  Pain with abduction and rotation.  Positive \nscratch test.  Difficulty resisting adduction.   \n \n\nCARRICK - G901705  9\n  \n \n \n Dr. Joseph assessed “1.  Tendinitis of right shoulder.”  Dr. Joseph \nappeared to recommend an x-ray of the claimant’s right shoulder and a \nreferral to Dr. Ethan Schock.   \n Dr. Schock saw the claimant on or about August 11, 2022: \nSteven Carrick is a 33 year old male who presents to discuss \nconcerns about their Shoulder, that began on 11/21/2018.... \nInjury occurred:  Ceiling tile along with metal shard fell and \nstruck my right shoulder and upper arm.... \nMr. Karrick (sic) is here today in consideration of the right \nshoulder.  He is a pleasant 33-year-old male who is here \ntoday on referral from his primary care physician’s office in \nconsideration of the right shoulder.  He initially sustained an \nacute injury in 2019 while working.  He was treated with \nphysical therapy and anti-inflammatory medications.  \nUnfortunately, he sustained another injury a few weeks ago \nwhen he was carrying his groceries.  He has had \nprogressively worsening right shoulder pain and dysfunction.  \nHe is here today for initial orthopedic evaluation.   \nPain is localized primarily to the anterior aspect of the \nshoulder.  This is worse with abduction.   \nHe has undergone MRI evaluation back in 2019.  He was \nnoted to have partial-thickness rotator cuff tear at that time.  \nThis was treated with conservative management.  He also \nunderwent corticosteroid injection at that time and received \nsome significant relief.   \nSince his most recent injury he has had progressively \nworsening shoulder pain and dysfunction and “weakness.”   \nHe denies any neurologic symptoms.  He denies any cervical \nspine source of symptoms or pain.... \nEXAM:    \nExamination today shows no evidence of atrophy about the \nRIGHT shoulder and neck.  RIGHT upper extremity is \nneurologically intact and shows normal pulses.  \nCompartments are soft.  ROM is limited secondary to patient \ndiscomfort, but there does not appear to be a capsulitis or \nmechanical block to motion.   \n\nCARRICK - G901705  10\n  \n \n \nAC joint shows normal stability with no pain on cross body \nadduction or provocative maneuvers.  AC joint is mildly tender \nwith direct palpation.... \nRADIOGRAPHIC INTERPRETATION: \nXrays of right shoulder taken today show no obvious sign of \nfracture or gross malalignment.  The glenohumeral and \nacromioclavicular joints are well aligned.  Minimal \ndegenerative changes are noted about the before meals (sic) \nand glenohumeral joints.  Type 1 acromion is appreciated.   \n \n Dr. Schock assessed “Right rotator cuff tendinopathy with \nsubacromial impingement.”  Dr. Schock planned, “I have recommended an \nMRI of the shoulder to further evaluate the status of the rotator cuff.  We will \nsee them back to review these results.  Failed conservative management to \ndate has included anti-inflammatory medications, home strengthening \nprogram, and activity modification.  Follow-Up:  We will see the patient back \nin the clinic after the MRI to review these results.”    \n A pre-hearing order was filed on September 13, 2022.  According to \nthe text of the pre-hearing order, the parties contended the following:  “1.  \nClaimant contends the work-related injury has caused his condition to \nworsen through aggravation, affecting his body.  2.  Claimant contends that \nhe is entitled to additional medical treatment.”  The respondents contended, \n“3.  Respondents contend that all appropriate benefits have been paid with \nregard to this claim.  Claimant’s claim is barred by the doctrine of res \njudicata, and the applicable statute of limitations.  Claimant listed his \nrequest for ‘additional medical treatment and payment of outstanding \n\nCARRICK - G901705  11\n  \n \n \nmedical bills’ at the pre-hearing conference on March 11, 2020.  Claimant \nlitigated the matter at the hearing on August 5, 2020, and he lost on the \nsubject before the ALJ, the full commission and the court of appeals (the \nArkansas Supreme Court declined claimant’s petition for review.  Claimants \nmost recent request comes more than two years after the injury date and \nmore than one year after the past payment of compensation.  Therefore, \nclaimant’s claim is barred by section 11-9-702(b) of the Arkansas Code \nAnnotated.  To the extent, Claimant’s claim is not barred by either res \njudicata or the statute of limitations, the respondents contend that the \nmedical treatment is not reasonable and necessary in regard to the right \nshoulder contusion.”   \n The pre-hearing order indicated that the parties agreed to litigate the \nfollowing issue:  “1.  According to the Form AR-C filed and claimant’s \nresponse to prehearing questionnaire he is seeking additional medical \ntreatment.”   \n After a hearing, an administrative law judge filed an opinion on \nDecember 21, 2022.  The administrative law judge found, in pertinent part, \n“4.  That the claimant’s second claim for additional medical in regard to his \nright shoulder which occurred on November 21, 2018, is barred by the \ndoctrine of res judicata and the applicable statute of limitations, and \n\nCARRICK - G901705  12\n  \n \n \nconsequently the claimant has failed to satisfy the required burden of \nproof.”  The claimant appeals to the Full Commission. \nII.  ADJUDICATION \nThe employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).   \nThe employer has the right to select the initial treating physician.  \nArk. Code Ann. §11-9-514(a)(3)(A)(i)(Repl. 2012).  However, an employee \nmay request a one-time change of physician.  Ark. Code Ann. §11-9-\n514(a)(2)(A), (a)(3)(A)(ii), (iii)(Repl. 2012).  When a claimant seeks a \nchange of physician, he must petition the Commission for approval.  \nStephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 279, 19 S.W.3d 36, 39 \n(2000).  Treatment or services furnished or prescribed by any physician \n\nCARRICK - G901705  13\n  \n \n \nother than the ones selected according to the change-of-physician rules, \nexcept emergency treatment, shall be at the claimant’s expense.  Ark. Code \nAnn. §11-9-514(b)(Repl. 2012). \nIn the present matter, the parties stipulated that the claimant \n“sustained a compensable work-related right shoulder contusion when an \nacoustical panel fell on him” on November 21, 2018.  The claimant testified \nthat part of a ceiling fell and struck him on the right upper arm.  Dr. Wang’s \nassessment on November 26, 2018 was “1.  Right arm pain....Looks like a \nminor contusion.”  The parties stipulated that the claimant returned to work \non November 28, 2018, but that the claimant “resigned from work” on \nFebruary 18, 2019.  The record does not show that the claimant’s \nresignation from employment was causally related to the November 21, \n2018 compensable injury.   \nDr. Vargas’ assessment on April 2, 2019 was “Right Shoulder pain” \nand “Right subacromial impingement with bursitis.”  Dr. Vargas \nrecommended conservative treatment.  Dr. Vargas subsequently opined \nthat the claimant had reached maximum medical improvement, with zero \npermanent anatomical impairment, no later than April 29, 2019.  On July 22, \n2019, the Commission granted the claimant a Change of Physician from Dr. \nVargas to Dr. Ahmadi.  Dr. Ahmadi arranged for an MRI of the claimant’s \nright shoulder, which was taken on August 21, 2019 with the impression, \n\nCARRICK - G901705  14\n  \n \n \n“No intra-articular abnormality noted within the right shoulder articulation.”  \nDr. Ahmadi reported on September 18, 2019 that the MRI was “normal.”  \nDr. Ahmadi recommended conservative management.  According to a pre-\nhearing order filed March 11, 2020, the claimant contended that he was \nentitled to additional medical treatment.     \nAn administrative law judge filed an opinion on September 15, 2020.  \nThe administrative law judge found, among other things, that the claimant \ndid not prove additional medical treatment was reasonably necessary.  The \nFull Commission affirmed and adopted the administrative law judge’s \nopinion.  The Arkansas Court of Appeals affirmed the Full Commission in \nan opinion delivered March 16, 2022.  The Court of Appeals and Arkansas \nSupreme Court thereafter denied petitions for review filed by the claimant.   \nThe claimant now contends that he is entitled to the medical \ntreatment provided by Dr. Joseph on June 30, 2022 and by Dr. Schock on \nAugust 11, 2022.  The Full Commission finds that said medical treatment \nwas unauthorized and therefore not the responsibility of the respondents.  \nThe claimant signed a Form AR-N, EMPLOYEE’S NOTICE OF INJURY, on \nNovember 26, 2018 following the November 21, 2018 compensable injury.  \nUnauthorized medical expenses incurred after the employee received his \nForm AR-N are not the employer’s responsibility.  See Ark. Code Ann. §11-\n\nCARRICK - G901705  15\n  \n \n \n9-514(c)(3); Tempworks Management Services, Inc. v. Jaynes, 2023 Ark. \nApp. 147.   \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the medical treatment sought by the claimant is unauthorized in \naccordance with Ark. Code Ann. §11-9-514(Repl. 2012), said treatment \nshall be at the claimant’s expense.  Because the requested medical \ntreatment was unauthorized, the Full Commission need not adjudicate the \nissue of res judicata or the applicable statute of limitations.  The claim for \nadditional medical treatment is respectfully denied and dismissed.   \nIT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton concurs. \nCONCURRING OPINION \n I concur with the Majority’s finding that the claimant failed to prove \nhe is entitled to additional medical treatment. \n While the Majority relies upon the language of Ark. Code Ann. § 11-\n9-514 in its findings, we would be remiss in not simultaneously addressing \nthe ALJ’s findings in his December 21, 2022 Opinion and Order.  The ALJ \n\nCARRICK - G901705  16\n  \n \n \nwas correct in his findings that the claimant’s petition for additional medical \ntreatment was barred by the statute of limitations and the doctrine of res \njudicata. \n Arkansas Code Annotated § 11-9-702(b)(1) provides that “[i]n cases \nin which any compensation, including disability or medical, has been paid \non account of injury, a claim for additional compensation shall be barred \nunless filed with the commission within one (1) year from the date of the last \npayment of compensation or two (2) years from the date of the injury, \nwhichever is greater.”  Our Supreme Court has determined that the statute \nof limitations commences upon the date of the last payment of benefits, \nwhether medical or indemnity.  Wynne v. Liberty Trailer & Death & \nPermanent Total Disability Tr. Fund, 2022 Ark. 65, 641 S.W.3d 621 (2022).  \nHere, there is no evidence of any benefits paid to or on behalf of the \nclaimant after May 22, 2020, for services rendered prior to that date.  \n(Respondent’s. Exhibit 2, page 8).  The claimant did not file a Form AR-C \nrequesting additional benefits until June 6, 2022, well over two years from \nthe date of the last payment of benefits.  The administrative law judge was \ncorrect in his ruling that the statute of limitations has expired and the claim \nis barred.   \n Additionally, the claimant’s request for additional medical treatment \nis barred by the doctrine of res judicata.  Res judicata applies where there \n\nCARRICK - G901705  17\n  \n \n \nhas been a final adjudication on the merits of the issue by a court of \ncompetent jurisdiction on all matters litigated and those matters necessarily \nwithin the issue which might have been litigated. Beliew v. Stuttgart Rice \nMill, 64 Ark. App. 334, 987 S.W.2d 281 (1998).  The key question regarding \nthe application of res judicata is whether the party against whom the earlier \ndecision is being asserted had a full and fair opportunity to litigate the issue \nin question.  Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993).  Res \njudicata does not apply if a claimant has sustained a change in condition or \nseeks benefits for a subsequent period of complications.  Rothrock v. \nAdvanced Envtl. Recycling, 2018 Ark. App. 88, 544 S.W.3d 61 \n(2018).  Before analyzing the claim under the doctrine of res judicata, the \nburden of proof rests with claimant to establish whether there had been \na change in his physical condition. Id.  The issue-preclusion provision of res \njudicata is also referred to as collateral estoppel and will bar relitigation of \nissues if the following requirements are met: “(1) the issue sought to be \nprecluded must be the same as that involved in the prior litigation; (2) the \nissue must have been actually litigated; (3) the issue must have been \ndetermined by a valid and final judgment; and (4) the determination must \nhave been essential to the judgment.”  Rothrock v. Advanced Envtl. \nRecycling, 2018 Ark. App. 88, 544 S.W.3d 61 (2018).  It is well settled that \n\nCARRICK - G901705  18\n  \n \n \nres judicata applies to decisions of the Commission.  Craven v. Fulton \nSanitation Serv., 361 Ark. 390, 206 S.W.3d 842 (2005). \n The issues presented by the claimant in this case were fully litigated \nat a hearing before the Commission on August 5, 2020.  The administrative \nlaw judge ruled against the claimant and the claimant appealed and was \nunsuccessful at the Full Commission and Court of Appeals levels.  In \naddition, the Supreme Court of Arkansas declined the request of the \nclaimant to review the findings of the Court of Appeals.  The claimant’s \nrequest for additional medical treatment has been fully litigated and is \nbarred by res judicata.  The claimant is obviously unhappy with the results \nof the 2020 hearing and his lack of success on appeal and seeks to \nrelitigate the same issues in this case and apparently intends to keep \nrelitigating the same issues.  His request for additional medical treatment \nhas been repeatedly denied by bodies of competent jurisdiction, and there \nis no basis for the continued review of these findings as the contentions of \nthe claimant for additional medical treatment are clearly barred by not only \nres judicata, but also the statute of limitations.  \n Based on the above findings, I would affirm the Opinion filed by the \nadministrative law judge that the claim of the claimant is barred by the \nstatute of limitations and the doctrine of res judicata.  \n \n\nCARRICK - G901705  19\n  \n \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":27157,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G901705 STEVEN C. CARRICK, EMPLOYEE CLAIMANT BAPTIST HEALTH, EMPLOYER RESPONDENT CLAIMS ADMINISTRATIVE SERVICES, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 1","outcome":"affirmed","outcomeKeywords":["affirmed:1","denied:1"],"injuryKeywords":["shoulder","back","strain","neck","rotator cuff","cervical","fracture"],"fetchedAt":"2026-05-19T22:29:46.459Z"},{"id":"alj-H106980-2023-05-31","awccNumber":"H106980","decisionDate":"2023-05-31","decisionYear":2023,"opinionType":"alj","claimantName":"Travis Evans","employerName":"Ark. Dept. Of Transportation","title":"EVANS VS. ARK. DEPT. OF TRANSPORTATION AWCC# H106980 MAY 31, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/EVANS_TRAVIS_H106980_20230531.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EVANS_TRAVIS_H106980_20230531.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H106980 \n \nTRAVIS EVANS, Employee                                                                            CLAIMANT \n \nARK. DEPT. OF TRANSPORTATION, Employer                                     RESPONDENT                         \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier                                    RESPONDENT                         \n \n \n OPINION FILED MAY 31, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents   represented   by   CHARLES   H.   MCLEMORE,   Attorney,   Little   Rock, \nArkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 15, 2023, the above captioned claim came on for hearing at  Fort Smith, \nArkansas.  A pre-hearing conference was conducted on March 1, 2023 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The  claimant  sustained  a  compensable  injury  to  his  left  lower  extremity  on \nAugust 18, 2021. \n 3.   The claimant was earning an average weekly wage of $853.69 which would \nentitle him to compensation at the weekly rates of $569.00 for total disability benefits and \n\nEvans – H106980 \n \n2 \n \n$427.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s back on August 18, 2021; or,  \nalternatively,  that  his  back  complaints  are  a  compensable  consequence  of  his  left  leg \ninjury. \n2.  Temporary total disability benefits from October 12, 2022 through a date yet to  \nbe determined. \n3.   Related medical. \n4.  Attorney fee. \n5.  Credit for overpayment. \n6.  Notice. \nClaimant  clarified  prior  to  the  hearing  that  he  is  contending  that  he  suffered  a \ncompensable  injury  to  his  left  hip,  pelvis,  and  back  on  August  18,  2021.   In  addition, \nclaimant clarified that he is requesting temporary total disability benefits from October 12, \n2022 through April 3, 2023. \nThe claimant contends  that on August 18, 2021, in addition to sustaining injury to \nhis hamstring and left lower extremity, he sustained injury to his back, left hip and pelvis.  \nAlternatively, the claimant’s problems with his back are a compensable consequence of \nthe effects of the injury to his hamstring and left lower extremity.   The claimant contends \nhe is entitled to temporary total disability benefits from October 12, 2022 through April 3, \n2023,  and  reasonably  necessary  medical  treatment.    The  claimant  contends  that  any \nbenefits  regarding  his  back  have  been  controverted  and  that  his  attorney  is  therefore \nentitled to an appropriate attorney’s fee regarding any indemnity benefits awarded related \n\nEvans – H106980 \n \n3 \n \nto  his  back.  The  claimant  contends  his attorney  is  entitled  to  an appropriate  attorney’s \nfee. \nThe respondents contend that the claimant reported having an injury to his upper \nleft leg on August 18, 2021 when he stepped out of his truck.  Respondents accepted this \nclaim as compensable and provided medical treatment reasonable and necessary for the \nclaimant’s left leg injury.  The claimant has been provided medical treatment, including \nMRI and EMG studies, and treatment with Dr. Bryan Smith.  On March 3, 2022,Dr. Smith \nopined  that  surgery  was  not needed  for  the left  leg, and  ordered  an  FCE to determine \nimpairment.    The  claimant  did  not  have  the  FCE.    Respondent  paid  temporary  total \ndisability benefits to the claimant while he was in his healing period, from August 19, 2021 \nuntil December 30, 2021; however, the claimant had returned to work December 2, 2021 \nresulting in an overpayment of TTD benefits for which respondent is entitled to a credit.  \nThe  claimant  complained  about  his  back.    Respondents  provided  the  claimant  with  a \nlumbar MRI; however, respondent contends that the claimant gave no notice of having a \nback injury at the time of his August 18, 2021 injury, and did not claim a back injury before \nfiling his November 16, 2022 form AR-C.  Respondents further contend claimant cannot \nestablish that he has a back, left hip or pelvis injury which occurred August 18, 2021. Dr. \nSmith  did  not  offer  any  surgery  for  claimant’s  back  complaints.    Dr.  Smith  found  the \nclaimant reached maximum medical improvement for his left leg injury October 11, 2022 \nbut  did  not  address  permanent  anatomical  impairment  because  claimant  would  not \nparticipate in an FCE, so respondent voluntarily paid the claimant PPD benefits for 7% \npermanent anatomical impairment to the left lower extremity.   \n    \n\nEvans -  H106980 \n \n4 \n \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non  March 1, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his lumbar spine on August 18, 2021.  Claimant \nhas failed to prove by a preponderance of the evidence that he suffered a compensable \ninjury  to  his  pelvis  or  left  hip  on  August  18,  2021  or  that  those are  compensable \nconsequences of his left leg injury. \n 3.  Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s lumbar spine injury. \n 4.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to temporary total disability benefits beginning October 12, 2022 and \ncontinuing through March 27, 2023. \n 4.  Claimant did not fail to give notice of his injury pursuant to A.C.A. §11-9-701. \n 5.  Respondent is entitled to a credit for temporary total disability benefits claimant \nwas paid subsequent to his return to work on December 2, 2021. \n 6.  Respondent  has  controverted  claimant’s  entitlement  to  all  unpaid  indemnity \n\nEvans -  H106980 \n \n5 \n \nbenefits. \n FACTUAL BACKGROUND \n Claimant worked for the Arkansas Highway Department and on August 18, 2021 \nhe  suffered  an  admittedly  compensable  injury  to  his  left  lower  extremity.    Claimant \ntestified that on that date he was in the process of delivering a piece of equipment when \nhis truck died as he pulled out into an intersection.  As he was getting out of his truck he \nput his foot on the bottom step and it slipped causing his leg to hit the ground.  Claimant \nstated: \n  I tore the hamstring somewhere up in my hip.  It feels like \n  maybe about the center of my backside.  It hurts all the way \n  from my belt loop down into the back of my knee and then \n  over to the side of my knee. \n \n \n Later that day claimant was seen by Dr. Christopher Bell in the emergency room \nwho diagnosed claimant as suffering from a left hamstring  strain.  Thereafter, claimant \nhas primarily been treated by Dr. Bryan Smith, an orthopedist at Mercy in Fort Smith. \n Claimant’s initial evaluation with Dr. Smith occurred on August 23, 2021.  Dr. Smith \ndiagnosed  claimant  as  suffering  from  a  left  hamstring  injury  and  was  concerned  about \nclaimant having torn the hamstring.  As a result, he recommended that claimant undergo \nan MRI scan of the femur “to include the proximal aspect, all the way up to the hamstring \norigin, all the way down to the level of the knee.”  Claimant underwent the MRI scan on \nAugust 25, 2021, and according to Dr. Smith’s report of August 26, 2021 the MRI scan \nwas consistent with a complete tear of the biceps femoris tendon.  However, Dr. Smith \nnoted  that  claimant’s  semitendinosus  and  semimembranosus  tendon  were  intact.    Dr. \nSmith  indicated  that  his  plan  was  to  treat  claimant  nonoperatively  with  activity  limits, \n\nEvans -  H106980 \n \n6 \n \nphysical therapy, and anti-inflammatory medication. \n Claimant returned to Dr. Smith on September 9, 2021 at which time he noted that \nclaimant was having increased anterior knee pain at the level of the patellar tendon.  Dr. \nSmith prescribed muscle relaxers and again recommended physical therapy as well as a \nhinged knee brace. \n At the time of the visit on October 7, 2021, claimant had been undergoing physical \ntherapy.    Because  of  claimant’s  continued  complaints  involving  his  knee,  Dr.  Smith \nrecommended  and  performed  a  knee  injection  for  the  purpose  of  relieving pain  and  to \ndetermine whether there was any intra-articular involvement such as a potential meniscus \ntear. \n Claimant  returned  to  Dr.  Smith  on  November  2,  2021,  and  reported  that  the \ninjection had helped with pain and popping in his left knee.  However, claimant continued \nto have pain and as a result Dr. Smith ordered an MRI scan of the femur and left knee.  \nClaimant underwent those MRI scans on November 19, 2021, and returned to Dr. Smith \non November 29, 2021.  Dr. Smith noted that the MRI of claimant’s left knee was negative \nfor any internal derangement such as meniscus tears.  Specifically, he stated: \n  I think what he is dealing with now is more chondromalacia \n  of the patella as well as some patellar maltracking secondary \n  to weakness in the quadriceps.   \n \n \n Claimant again returned to see Dr. Smith on January  4, 2022 and he noted that  \nclaimant had returned to work since the time of his last visit.  Claimant indicated that when \nhe was standing or walking on even surfaces he was not having any issues, but when he \nwas on hills or rough terrain he had complaints.  Dr. Smith stated: \n\nEvans -  H106980 \n \n7 \n \n  It is possible that some of this is related to patellar \n  tracking issues that may have been present before \n  and now are exacerbated as he has to compensate \n  for recovering hamstring injury.   \n \n \n Claimant’s next visit with Dr. Smith occurred on February 1, 2022 and he noted \nthat claimant continued to have problems with standing for extended periods of time and \nthat claimant felt like he was “hanging” his left toes and catching them.  At this point, Dr. \nSmith became concerned that claimant’s problems were related to his low back. \n  My concern is that given his current limitations, perhaps \n  this is more indicative of radiculopathy as he has failed \n  to make substantial improvements with treatments directed \n  at the hamstring and the knee. \n \n \n Dr.  Smith  ordered  an EMG/nerve  conduction  study  of  the  left  lower  extremity  to \nrule  out  any  radiculopathy.    The  EMG  was  performed  on  February  17,  2022,  and was \nread as normal. \n Following the EMG claimant  returned to Dr. Smith on March 3, 2022.  Dr. Smith \nagain noted that there was not anything from a surgical standpoint that he could do, but \ninstead indicated that claimant could best be served with a FCE and impairment rating. \n It should be noted at this point that there was much discussion and testimony at \nthe hearing regarding the FCE.  While there was some indication on claimant’s part that \nthis FCE was suggested by the respondent, it is clear from a review of Dr. Smith’s March \n3, 2022 report that he recommended the FCE.  Regardless, claimant did not undergo an \nFCE but did return to work for the respondent.  After returning to work for the respondent, \nclaimant had a second incident.  Claimant testified that sometime in April 2022 he was \nwalking up and down an embankment under a bridge and his hamstring began to hurt \n\nEvans -  H106980 \n \n8 \n \nand “... the back of  my knee just felt like it opened up like there wasn’t nothing holding it.  \nIt got to hurting and popping.”  Respondent had claimant complete additional paperwork \nregarding this second incident; however, claimant is proceeding with the contention that \nhis current problems are simply a continuation of the August 18, 2021 incident. \n Following  this  incident,  claimant  returned  to  Dr.  Smith  on  April  19.    Because \nclaimant  was  having mechanical  symptoms  in  his  knee,  Dr.  Smith  was  concerned  that \nthere might be some meniscal pathology and he ordered a repeat MRI scan of the left \nknee.  That scan was performed on May 4, 2022, and showed no evidence of internal \nderangement. \n Following  the  MRI  scan  Dr.  Smith  nevertheless  recommended  that  claimant \nundergo  a  diagnostic  arthroscopic  procedure.    Although  claimant  had  undergone  two \nMRIs  which  were  both  normal,  he  noted  that  claimant  continued  to  have  mechanical \nsymptoms in his left knee.  As a result, he recommended an arthroscopic procedure.  This \nprocedure was performed on May 18, 2022 and according to Dr. Smith’s operative report \nhis post-operative diagnosis was anterior fat pad impingement, patellar chondromalacia \nand medial plica syndrome.   \n Subsequent reports from Dr. Smith indicate that following the surgical procedure \nclaimant’s knee was “1000 times better” and “excellent”.  However, Dr. Smith noted that \nclaimant continued to have problems in his posterior thigh and hamstrings.   \n In his report of September 13, 2022, Dr. Smith again recommended that claimant \nundergo an evaluation for his lumbar spine.   \n  I would like to work up his back starting with lumbar \n  spine xrays and lumbar spine MRI. \n \n\nEvans -  H106980 \n \n9 \n \n \n The lumbar spine MRI was performed on September 29, 2022, and contained the \nfollowing impression: \n1.  Mild-moderate degenerative change throughout the  \nlumbar spine. \n2.  Small broad-based disc protrusion eccentric to the \nright at L5-S1. \n \n Following the MRI scan claimant returned to Dr. Smith on October 11, 2022.  At \nthat time Dr. Smith again believed that claimant’s problems might be related to his back.   \n  I am somewhat concerned that all this is really more \n  related to his back.  We had a long discussion about \n  this.  I think it would be wise for us to get him set up \n  with pain management for a trial of lumbar epidural \n  steroid injections to assess how his left lower extremity \n  responds.  With regard to left lower extremity, I do not \n  have any further surgical interventions, but I am happy \n  to see him through the results of his lumbar spine \n  injections.   \n \n \n Claimant was evaluated by Dr. Natalie Strickland, a pain management specialist, \non  November  16,  2022.    Dr.  Strickland diagnosed  claimant  as  suffering  from  lumbar \nradicular   pain;   lumbar   herniated  disc;   spondylosis   of   lumbosacral   region   without \nmyelopathy  or  radiculopathy;  chronic  bilateral  low  back  pain  without  sciatica.    Dr. \nStrickland gave claimant a lumbar epidural steroid injection at the L5-S1 level.   \n Claimant returned to Dr. Smith on December 13, 2022, and apparently informed \nDr.  Smith  that  he  had  not  noticed  a  whole  lot  of  difference  in  his  day  to  day  activities \nfollowing the injections; however, he indicated that his wife felt like he had slept better the \nlast several nights.  Dr. Smith stated: \n  We thought he had his hamstring injury.  I did not feel \n  that surgical intervention was warranted.  It has taken \n\nEvans -  H106980 \n \n10 \n \n  him a long time, he has been dealing with it for a year. \n  We were concerned that this might be more of a lumbar \n  radiculopathy type picture. \n \n  \nDr.  Smith  recommended  that  claimant  continue  his  follow  up  treatment  with  the  pain \nmanagement doctor and see if future injections gave him any relief. \n On March 27, 2023, claimant was evaluated by Dr. William Rambo, neurosurgeon.  \nDr.  Rambo  diagnosed  claimant’s  condition  as  lumbar/lumbosacral  spondylosis.    Dr. \nRambo  did  not  believe  that  claimant  needed  any  surgical  intervention, but  did  indicate \nthat claimant should undergo an epidural steroid injection at the L4-5 level.  Dr. Rambo \nalso indicated that claimant had no disability or work restrictions with respect to his lumbar \nspine. \n The  final medical  report  is  from  Dr.  Smith  dated  April  6,  2023, at  which  time  he \nrecommended   that   claimant   follow   up   with   the   pain   management   specialist   for \nconsideration of an epidural steroid injection at the L4-5 level.  In addition, the claimant \nalso returned to work for respondent on April 2, 2023. \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis left hip, pelvis, and back as a result of the incident on April 18, 2021, or alternatively, \nthat his back complaints are a compensable consequence of his left leg injury.  He seeks \npayment of related medical treatment as well as temporary total disability benefits and a \ncontroverted attorney fee. \nADJUDICATION \n \n The initial issue for consideration involves compensability to the claimant’s back, \npelvis,  and  left  hip.    In  order  to  prove  a  compensable  injury  as  a  result  of a  specific \n\nEvans -  H106980 \n \n11 \n \nincident,  identifiable  by  time  and  place  of  occurrence,  claimant  must  prove  by  a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \n Here, there is no question that the incident on August 18 arose out of and in the \ncourse of claimant’s employment with respondent.  I also find that the claimant has offered  \nmedical  evidence  supported  by  objective  findings establishing  a  compensable  injury  to \nhis  back.    Claimant  underwent  a  lumbar  MRI  scan  on  September  29,  2022,  which \nrevealed a disc protrusion at the L5-S1 level.  In addition, claimant’s treating physicians \nhave recommended medical treatment for his lumbar spine in the form of lumbar epidural \nsteroid injections initially at L5-S1 and most recently at L4-5.   \n The  primary  issue  is  whether  claimant  has  proven  by  a  preponderance  of  the \nevidence that his low back complaints are causally related to the incident of August 18, \n2021.   \n As previously noted, respondent has accepted a compensable injury to claimant’s \nleft lower extremity.  Admittedly, the forms signed by the claimant and the medical records \nfor an extended period of time make no  mention of any low back complaints.  Instead, \nthe  only  reference  is  to  an  injury  to  the  claimant’s  upper  left  leg  (lower  extremities); \npossible  hyperextension  of  the  left  knee  and  upper  left  leg;  and  a  tear  or  rip  to  the \nhamstring.      Based   on   claimant’s   complaints   involving   his   hamstring,   Dr.   Smith \n\nEvans -  H106980 \n \n12 \n \nrecommended  various  medical  treatments.    When  those  treatments  did  not  alleviate \nclaimant’s symptoms, Dr. Smith began to consider that claimant’s complaints were related \nto his low back.  In his report of February 1, 2022, Dr. Smith stated: \n  My concern is that given his current limitations, perhaps \n  this is more indicative of radiculopathy as he has failed \n  to make substantial improvements with treatments \n  directed at the hamstring and the knee. \n \n \n Dr.  Smith  went  on  to  recommend  an  EMG  of  the  claimant’s  left  lower  extremity \nwhich was read as normal.  Thereafter, claimant had the second incident in April 2022 \nand continued to have complaints involving his leg and his left knee.  Dr. Smith performed \nsurgery on claimant’s left knee which alleviated most if not all of the left knee complaints.  \nHowever, claimant continued to have issues with his hamstring.  Accordingly, Dr. Smith \nin his report of September 13, 2022 again recommended that claimant be evaluated for \nlow back issues.   \n  I would like to work up his back starting with lumbar \n  spine xrays and lumbar spine MRI. \n   \n \n The  lumbar  MRI  scan  was  performed  on  September  29,  2022  and  revealed \ndegenerative changes as well as a disc protrusion at the L5-S1 level.  Following that MRI \nscan Dr. Smith in his report of October 11, 2022 stated: \n  I am somewhat concerned that all this is really more \n  related to his back. \n \n \n Dr. Smith went on to recommend that claimant undergo a trial of lumbar epidural \nsteroid injections to see how his left lower extremity responded.  Claimant underwent the \ninitial epidural steroid injection at the L5-S1 level by Dr. Strickland on November 16, 2022.  \n\nEvans -  H106980 \n \n13 \n \nDr. Strickland’s diagnosis of the claimant’s condition was lumbar radicular pain; lumbar \nherniated disc; spondylosis of lumbosacral region without myelopathy or radiculopathy; \nand chronic bilateral low back pain without sciatica.   \n  Following  this  injection  claimant  again  returned  to  Dr.  Smith  on  December  13, \n2022, at which point he stated: \n  We thought he had his hamstring injury.  I did not feel that \n  surgical intervention was warranted.  It has taken him a \n  long time, he has been dealing with it for a year.  We are \n  concerned that this might be more of a lumbar radiculopathy \n  type picture.  (Emphasis added.) \n \n \n Subsequent  to  that  evaluation  claimant  was  seen  by  Dr.  William  Rambo,  a \nneurosurgeon,  on  March  27,  2023.    Dr.  Rambo  diagnosed  claimant’s  condition  as  a \nlumbar/lumbosacral spondylosis.  In his report of that date he stated: \n  Tough situation.  He has been thoroughly evaluated and \n  treated since his work-related injury in 2021.  I think his \n  pain is probably multifactorial including hamstring and  \n  knee etiologies.  Arguing against a radiculopathy is that \n  his pain stops at the knee and his MRI findings are mild \n  and mostly right-sided.  However he does have some \n  mild lateral recess stenosis at L4-L5.   While this is not \n  bad enough to warrant surgical intervention, it is possible \n  that it is contributing to his clinical picture. \n \n \n Dr.  Rambo  went  on  to  recommend  that  claimant  receive  an  epidural  steroid \ninjection at the L4-5 level. \n Obviously, the claimant is not a physician.  Claimant has repeatedly informed his \ntreating physicians that he has had pain radiating from his beltline down to the back of his \nknee.  It is also clear that claimant did have a tear in one of the tendons of his hamstring \nand also had issues with his left knee which required surgery by Dr. Smith.  However, \n\nEvans -  H106980 \n \n14 \n \nclaimant’s  complaints  have  continued  in  his  left  leg.    Because  of  those  continued \ncomplaints  Dr.  Smith  was  of  the  opinion  that  claimant  might  have  a  low  back  issue \ninvolving  radiculopathy  and  recommended  lumbar  epidural  steroid  injections.    These \ninjections have been performed by Dr. Strickland.  Dr. Strickland has diagnosed claimant \nwith low back complaints and claimant has also  undergone an evaluation by Dr. Rambo \nwho is of the opinion that claimant’s complaints are probably multifactorial which include \nhamstring  and  knee  etiologies.    He  has  also  indicated  that  while  claimant’s  low  back \ncomplaints are not significant enough to warrant surgical intervention, it is possible they \nare contributing to his complaints and he has recommended an epidural steroid injection \nat the L4-5 level.   \n I  find  based  upon  the  evidence  presented  that  claimant  has  met  his  burden  of \nproving by a preponderance of the evidence that he suffered a compensable injury to his \nlow  back  as  a  result  of  the  accident  on  August  18,  2021.    Claimant’s  complaints  have \nbeen consistent throughout his treatment and  it is the opinion of his treating physician, \nDr.  Smith,  that  those  complaints  have  a  radicular  component  for  which  he  has \nrecommended medical treatment.  Accordingly, I find that claimant has met his burden of \nproving by a preponderance of the evidence that he suffered a compensable injury to his \nlow back on August 18, 2021. \nI also find that claimant has failed to prove by a preponderance of the evidence \nthat he suffered a compensable injury to his left hip or pelvis separate and apart from the \nadmitted hamstring injury.  While claimant’s hip is mentioned in several medical reports, \nit is in connection with the claimant’s hamstring injury, not a separate injury to the left hip \nitself.  In short, after reviewing the evidence in this case; specifically, the medical records \n\nEvans -  H106980 \n \n15 \n \nof Dr. Smith as well as Dr. Strickland and Dr. Rambo, I do not find that claimant has met \nhis burden of proving by a preponderance of the evidence that he suffered a compensable \ninjury to his pelvis or left hip on August 18, 2021, or that he suffered an injury to his left \nhip or pelvis as a compensable consequence of his left leg injury. \n Having  found  that  claimant  suffered a  compensable  injury  to  his  lumbar  spine,  I \nfind  that  respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with that compensable injury. \n I also find that claimant is entitled to temporary total disability benefits beginning \nOctober  12,  2022  and  continuing  through  March  27,  2023.    In  order to  be  entitled  to \ntemporary total disability benefits, claimant has the burden of proving by a preponderance \nof  the  evidence  that  he  remains  within  his  healing  period  and  that he  suffers  a  total \nincapacity to earn wages.  Arkansas State Highway & Transportation Dept. v. Breshears, \n272 Ark. 244, 613 S.W. 2d 392 (1981).  \n Claimant  underwent  surgery  on  his  left  knee  by  Dr.  Smith  on  May  18,  2022.  \nAccording to Dr. Smith’s medical report of October 11, 2022, he was concerned at that \ntime that claimant’s complaints were related more to his back and recommended a trial \nof epidural steroid injections.  Dr. Smith also stated with regard to claimant’s left lower \nextremity he did not have any further surgical recommendations.  Dr. Smith took claimant \noff  work  that  day  to  be  evaluated  for  pain  management.    Respondent  ceased  paying \nclaimant temporary total disability as of that date because it did not accept claimant’s low \nback complaints as compensable.  However, based upon the finding that claimant’s low \nback complaints are a compensable injury, Dr. Smith’s continuation of claimant’s off work \nstatus as of October 11, 2022 and his continuation of that status in his report of December \n\nEvans -  H106980 \n \n16 \n \n13,  2022,  indicates  that  claimant  suffered  a  total  incapacity  to  earn  wages.   Likewise, \nclaimant’s  receipt  of    medical  treatment  in  the  form  of  epidural  steroid  injections \nestablishes that claimant remained within his healing period.  I find that claimant’s total \nincapacity to earn wages continued through March 27, 2023.  On that date, claimant was \nevaluated by Dr. Rambo who recommended an epidural steroid injection at the L4-5 level.  \nHowever, Dr. Rambo indicated that with respect to claimant’s lumbar spine “I cannot give \nhim any disability or work restrictions.”    Claimant  apparently  returned  to  work  for  the \nrespondent a few days after this evaluation by Dr. Rambo. \n Accordingly, I find that claimant has met his burden of proving by a preponderance \nof  the  evidence  that he  remained  within his healing  period and  that  he  suffered  a  total \nincapacity to earn wages from October 11, 2022, the date he was given an off work note \nfor  his  lumbar  spine  by  Dr.  Smith,  through  March  27,  2023,  the  date  claimant was \nevaluated by Dr. Rambo and he opined that he could not give claimant any disability or \nwork restrictions.  Therefore, claimant is entitled to temporary total disability benefits from \nOctober 12, 2022 through March 27, 2023. \n Other  issues  for  consideration  involve  respondent’s  request  for  a  credit  for \noverpayment.    Apparently,  claimant  returned  to  work  for  respondent  on  December  2, \n2021.   However,  respondent’s payment  records  indicate  that  respondent  paid  claimant \nadditional temporary total disability benefits from December 2, 2021 through December \n30, 2021.  Respondent is entitled to a credit for overpayment of those benefits. \nFinally, respondent contends that claimant did not give any notice of a back injury \nat the time of his August 18, 2021 injury and did not claim a back injury until he filed Form \nAR-C on November 16, 2022.  Therefore, respondent contends that it is not liable for any \n\nEvans -  H106980 \n \n17 \n \ncompensation benefits prior to that notice.   \n Notice  of  an  injury  or  death  is  governed  by  the  provisions  of  A.C.A.  §11-9-701.  \nSubsection (a)(1) of that statute states: \n  Unless an injury either renders the employee physically \n  or mentally unable to do so, or is made known to the \n  employer immediately after it occurs, the employee  \n  shall report the injury to the employer on a form \n  prescribed or approved by the Workers’ Compensation \n  Commission and to a person or at a place specified by \n  the employer, and the employer shall not be responsible \n  for disability, medical, or other benefits prior to receipt \n  of the employe’s report of injury.  (Emphasis added.) \n \n \n In addition, Subsection (b)(1)(A) states that failure to give notice shall not bar any \nclaim if the employer had knowledge of the injury or death and Subsection (B) indicates \nthat failure to give notice shall not bar any claim if the employee had no knowledge that \nhis condition or disease arose out of and in the course of his employment.   \n Here,  respondent  was  clearly  aware  that  claimant  had  suffered  a  compensable \ninjury.  Claimant was sent for treatment at the emergency room and he completed forms \nfor the respondent indicating that he had suffered an injury on August 18, 2021.  There is \nno requirement under A.C.A. §11-9-701 that claimant list every possible diagnosis which \nwill be made during the course of his treatment.  Claimant testified that he never really \nhad  any  back  pain  and  it  was  only  his  treating  physicians  who  concluded  that  his \ncomplaints were related to his low back and not entirely to his hamstring.  Nevertheless, \nrespondent  had  knowledge  of  claimant’s  injury;  therefore,  A.C.A.  §11-9-701  is  not \napplicable. \n \n\nEvans -  H106980 \n \n18 \n \nAWARD \n \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe suffered a compensable injury to his low back on August 18, 2021.  He has failed to \nprove by a preponderance of the evidence that he suffered a compensable injury to his \nleft  hip  or  pelvis  on  that  date  or  as  a  compensable  consequence  of  his  compensable \ninjuries.    Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable low back injury.  Claimant \nis entitled to temporary total disability benefits beginning October 12, 2022 and continuing \nthrough March 27, 2023.  Respondent is entitled to a credit for overpayment of temporary \ntotal disability benefits.   \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \n All sums herein accrued are payable in a lump sum and without discount. \n Respondents shall pay the court reporter’s charges for preparation of the hearing \ntranscript in the amount of $645.95. \n IT IS SO ORDERED. \n \n       ________________________________ \n        GREGORY K. STEWART \n        ADMINISTRATIVE LAW JUDGE","textLength":32783,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H106980 TRAVIS EVANS, Employee CLAIMANT ARK. DEPT. OF TRANSPORTATION, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED MAY 31, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Coun...","outcome":"granted","outcomeKeywords":["granted:6"],"injuryKeywords":["back","hip","lumbar","knee","strain","herniated"],"fetchedAt":"2026-05-19T23:08:08.071Z"},{"id":"alj-G901606-2023-05-30","awccNumber":"G901606","decisionDate":"2023-05-30","decisionYear":2023,"opinionType":"alj","claimantName":"Louisa Hampton","employerName":"University Of Arkansas Medical Sciences/uams","title":"HAMPTON VS. UNIVERSITY OF ARKANSAS MEDICAL SCIENCES/UAMS AWCC# G901606 MAY 30, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HAMPTON_LOUISA_G901606_20230530.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HAMPTON_LOUISA_G901606_20230530.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: G901606 \nLOUISA HAMPTON,  \nEMPLOYEE                                                                                                              CLAIMANT                                                  \n \nUNIVERSITY OF ARKANSAS MEDICAL  \nSCIENCES/UAMS,  \nEMPLOYER                                                                                          RESPONDENT NO.     1 \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,                                        \nINSURANCE CARRIER/THIRD PARTY  \nADMINISTRATOR (TPA)                                                                  RESPONDENT NO.     1 \n \nDEATH AND PERMANENT TOTAL DISABILITY  \nTRUST FUND                                                                                       RESPONDENT NO.     2 \n \n \n         OPINION FILED MAY 30, 2023     \n        \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Little Rock, \nPulaski County, Arkansas. \n \nClaimant represented by Ms. Laura Beth York, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  No.  1  represented  by  Mr.  Charles  McLemore,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nRespondent No. 2 represented by Ms. Christy L. King, Attorney at Law, Little Rock, Arkansas.   \n \nStatement of the Case \nOn  March  7,  2023,  the  above-captioned  claim  came  on  for  a  hearing in  Little  Rock, \nArkansas.  Previously, a prehearing telephone conference was conducted in this matter on January \n11, 2023.  On that same day, a Prehearing Order was filed.   \nA copy of said order and the parties’ responsive filings have been marked as Commission’s \nExhibit 1 and made a part of the record. \n \n \n\nHampton- G901606 \n \n2 \n \nStipulations \nDuring  the  prehearing  telephone  conference,  and/or  hearing  the  parties  agreed  to  the \nfollowing stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n2. That  the  employee-employer-insurance  carrier  relationship  existed  at  all  relevant \ntimes, including on or about March 4, 2019. \n3. At that time, the Claimant sustained a compensable injury to her right shoulder. \n4. The  Claimant’s  average  weekly  wage  on the  day  of  her  accidental  injury  was \nsufficient  to  entitle  her  to  a  weekly  compensation  rate  of  $372.00  for  temporary \ntotal  disability  (TTD)  compensation,  and  $279.00  a  week  for  permanent  partial \ndisability (PPD) benefits. \n5. Respondents  No.  1  have  accepted  and  paid  a  7%  anatomical  impairment  to  the \nClaimant for her compensable right shoulder injury.   \n6. The  Claimant  was  released  to  return  to  work  at  maximum  medical  improvement \n(MMI) on October 20, 2022, by Dr. O’Malley.  \n7. A hearing was held in this matter on December 18, 2019, resulting in an opinion \ndated May 6, 2020, which was affirmed and adopted by the Full Commission on \nDecember 16, 2020.  That opinion is the law of the case.     \n8. Respondents No. 1\n1\n have controverted this claim for additional benefits.  \n \n1\n There is a clerical error in the hearing transcript on page 8.  It incorrectly reads that Respondent No. 2 \nhas controverted this claim for additional benefits.  Instead, it should reflect that Respondents No. 1 have \ncontroverted the claim for additional benefits. \n\nHampton- G901606 \n \n3 \n \n9. All   issues   not   litigated   herein   are reserved  under  the  Arkansas  Workers’ \nCompensation Act. \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether the Claimant has been rendered permanently and totally disabled by her \ncompensable  right  shoulder  injury,  or  in  the  alternative  suffered  wage-loss \ndisability. \n2. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n The respective contentions of the parties are as follows: \nClaimant: \nThe  Claimant  contends  that  on  March  4,  2019,  pushing  a  cart  when  an  elevator  door \nslammed  into  her.    She  sustained  an  injury  to  her  right  shoulder,  neck  and  back.    Respondents \ninitially accepted the claim as compensable and sent her to the doctor.  Following a few visits to a \nnurse  practitioner,  the  Respondents  denied  the  claim  in  its  entirety,  citing  no  objective  medical \nfindings.  The Claimant was forced to treat on her own.  The Claimant underwent an ultrasound to \nher right shoulder, which revealed a massive rotator cuff tear.  Dr. Shahryar Ahmadi performed \nsurgery in June 2019.    \nThe  Claimant  filed  a  Prehearing  Questionnaire  and  went  to  a  Full  Hearing  to  address \ncompensability.  In an opinion dated May 6, 2020, the Administrative Law Judge (ALJ) found the \nClaimant  to  be  credible  and  found  that  she  proved  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury.  Medical and indemnity benefits were awarded.  The Respondents \n\nHampton- G901606 \n \n4 \n \nappealed  the  decision  to  the  Full  Commission.    On  December  16,  2020,  the  Full  Commission \nAffirmed and Adopted the ALJ's opinion. \nOn  March  17,  2021,  Dr.  Ahmadi  released  the  Claimant  at  MMI  with  a  6%  whole  body \nimpairment rating and no restrictions despite her complaints of pain.  Dr. Ahmadi left UAMS, and \nthe  Claimant's  care  was  transferred  to  Dr.  O'Malley.    She  was  diagnosed  as  having  scapular \ndyskinesia.    She  underwent  considerable  physical  therapy  to  address  the  condition.    An  MRI \nrevealed considerable atrophy, despite months of physical therapy and strengthening.  On August \n18, 2022, Dr. O'Malley noted that no other surgery was needed but that she should continue her \nhome therapy exercises. \nOn  October  14,  2022,  a  Functional  Capacity  Evaluation  was  performed.    The  Claimant \ngave a reliable result and was given permanent light duty restrictions.  On October 20, 2022, Dr. \nO'Malley released the Claimant at MMI with a 7% whole body rating and permanent light duty \nrestrictions.  \nThe Claimant is 67 years old with a high school education.  She worked primarily in factory \njobs on assembly lines until going to work for UAMS.  Originally, she was hired to take supplies \nto  patient  rooms,  and  then  moved  over  to  the  sterile  instruments  department  where  her  job \nconsisted  of  transporting  carts  of  dirty  instruments.    The  Claimant  was  terminated  by  the \nRespondent  employer  during  the  course  of  her  treatment.    The  Claimant  contends  that  she  is \npermanently and totally disabled because of this work injury, or in the alternative that she sustained \nsignificant wage loss.  Claimant further contends that her attorney is entitled to an attorney fee.   \nAll other issues are reserved. \nRespondents No. 1: \nThe Respondents contend that on March 4, 2019, the Claimant reported having an injury \nto her back and neck with symptoms down her right leg after an elevator door hit her in the back.  \nThe  Respondents  provided  treatment  for  the  Claimant's  reported  back  and  neck  injury,  but  the \nclaim was controverted after there were no objective findings of an injury to the Claimant's back \nor neck.  The Claimant demanded a hearing, alleging a right shoulder injury requiring surgery to \nrepair  her  rotator  cuff  on  June  20,  2019,  due to  the  March  4,  2019,  injury.    The  Administrative \n\nHampton- G901606 \n \n5 \n \nLaw  Judge  ruled  in  favor  of  the  Claimant,  and  this  was  affirmed  by  the  majority  of  the  Full \nCommission and is now res judicata and law of the case.  Respondents No. 1 paid the Claimant \nthe awarded TTD benefits and medical treatment, including the surgery the Claimant underwent \nby Dr. Shahryar Ahmadi in June 2019. \nDr. Ahmadi had released the Claimant at Maximum Medical Improvement on March 17, \n2021, and assigned her a 6% permanent anatomical impairment to the body as a whole, which the \nRespondents accepted and paid to the Claimant.  \nThe Claimant continued complaining of symptoms after her release by Dr. Ahmadi,  and \nshe  was  provided  treatment after Dr. Ahmadi was no longer available with Dr. O’Malley,  who \ntreated her conservatively including a MRI, injection, and physical therapy.  Dr. O’Malley released \nthe  Claimant  at  maximum  medical  improvement  on  October  20,  2022,  with  a  7% impairment \nrating to the body as a whole, which has been accepted by Respondents No. 1 for the additional \n1% impairment rating. \nThe Claimant in fact returned to work after March 4, 2019, and worked through June 18, \n2019.  The Claimant’s employment with the Respondent-Employer ended March 2, 2020.   The \nClaimant is evidently collecting Social Security benefits now.    \nThe  Claimant  performed  reliably  in  the  Light  classification  of  work  at  a  Functional \nCapacity  Evaluation  on  October  14,  2022.    Vocational  rehabilitation  has  been  offered  to  the \nClaimant by Respondents No. 1. \nRespondents  No.  1  reserves  the  right  to  raise  additional  contentions,  or  to  modify  those \nstated herein, pending the completion of discovery.           \nRespondents No. 2: \nThe Trust Fund has deferred to the outcome of litigation on the above-named issues. \n\nHampton- G901606 \n \n6 \n \nHowever, if the Claimant is found to be permanently and totally disabled, the Trust Fund \nstands ready to begin weekly benefits in compliance with A.C.A. §11-9-502.   Therefore, the Trust \nFund has not controverted the Claimant’s entitlement to benefits.   \nThe Death and Permanent Total Disability Trust Fund will state its remaining contentions \nupon completion of discovery.  \n                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased  on  my  review  of  the  relevant  evidentiary  record,  to  include  the  documentary \nevidence  listed  below,  other  matters  properly  before  the  Commission,  and  after  having  had  an \nopportunity to hear the testimony of the Claimant and observe her demeanor during the hearing, I \nhereby make the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. §11-9-704 (Repl. 2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim.  \n       \n2.     I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.     The Claimant failed to prove by a preponderance of the credible evidence that she   \n          is permanently and totally disabled due to her compensable right shoulder injury of  \n          March 4, 2019.   \n \n          4.        The Claimant proved she sustained wage-loss disability in the amount of 33% over \n                     and above her 7% permanent anatomical impairment rating. \n \n          5.        The Claimant’s attorney is entitled to a controverted attorney’s fee on the indemnity   \n                     benefits awarded on this claim.    \nSummary of Evidence \nMs. Louisa Hampton (referred to hereafter as the “Claimant”) was the sole witness to  \ntestify at the hearing.  \n            The  record  consists  of  the  March  7,  2023,  hearing  transcript  and  the  following  exhibits, \nwhich  were  offered  into  evidence  without  objections:  Specifically,  Commission’s  Exhibit  1 \n\nHampton- G901606 \n \n7 \n \nincludes  the  above  referenced  documents;  the Claimant’s  Exhibit  1, includes  six  (6)  pages  of  \nMedical Summary Report, and four hundred and twenty-three (423) numbered pages of Medical \nRecords;  Claimant’s  Non-Medical  Index  includes  eight  (8)  numbered  pages,  which  has  been \nmarked  as  Claimant’s  Exhibit  2;  Respondents  No.  1’s  Medical  Exhibit consists  of  four  (4) \nnumbered pages and it has been marked as Respondents’ Exhibit 1; Respondents No.1’s Exhibit 2 \nconsists of fourteen(14) numbered pages; the Hearing Transcript of December 18, 2019 has been \nmarked Respondents’  Exhibit  3 and  is  retained  in  the  Commission’s  file;  Former  Chief \nAdministrative Law Judge Barbara Webb’s opinion of May 6, 2020 comprising of thirty-six (36) \npages has been marked as Joint Exhibit 1; and Joint Exhibit 2 is the Full Commission’s opinion of \nDecember 16, 2020, consisting of six (6) numbered pages was designated accordingly.     \n                                                           Testimony \nThe  Claimant,  Louisa  Hampton,  (DOB:  8/10/55)  testified  that  she  has  a  high  school \neducation.  She worked  for  UAMS for over a year, in  the dietary department after leaving high \nschool.  The Claimant also worked at  Timex for  over ten (10) years.   She worked at Cliffs and \nAssociates for eleven (11) years, and at New York Air Brake for over ten (10) years.  The Claimant \nwas laid off from there, before going back to work for UAMS, in their central supply sterilization \ndepartment.   \n Per the Claimant, she first went to work in 1974 at UAMS in dietary.  Her  employment \nduties included transporting food trays to patients, doing the dishes, and keeping the tables clean.  \nThe Claimant worked at Timex on the assembly line, doing repetitive-type work, which included \nputting “little pieces” in watches.  No lifting was needed for this job.  The Claimant also worked \non  the  assembly  at  Cliffs  and  Associates,  assembling  speakers/woofers  and  testing  them  on  the \n\nHampton- G901606 \n \n8 \n \ncomputer.    The  Claimant  also  put  the  networks  on  the  board  for  the  cabinets.    Specifically,  she \npainted, stained, glued, and soldered the cabinets.   \nWhile working for New York Air Brake, her job duties involved the rebuilding of air brakes \nfor trains.  She explained that they had to rebuild the valves.  According to the Claimant, her work \nentailed  the  small  body  parts.    Later,  the  Claimant  went  to  work  in  an  inventory  position.    The \nClaimant  denied  that  she  was  a  manager  in  any  of  these  positions.  She  was  the  Inventory \nCoordinator before they closed the plant.  The Claimant confirmed that New York Air Brake is no \nlonger  a  viable  business  in  Arkansas.    In  fact,  she  denied  that  any  of  the  prior  jobs  that  she \npreviously performed are still around, except for the positions she performed at UAMS.   \n In that regard, the Claimant confirmed that she returned to work for UAMS in 2012.  The \nClaimant worked in central supply, where she pulled supplies for the patients.  In this position, the \nClaimant  had  to  find the patient’s location using the computer.    However,  someone  else  would \npick up the supplies at the window and transport them to the patients.  The Claimant explained that \nthe majority of these items were very small.  Following her work in central supply, the Claimant \nwent  to  work  in  the  sterilization  department.    She  initially  filled  orders  for  the  operating  room \n(OR), which included lifting heavy trays.  Per the Claimant, she transported the trays to the OR on \na cart.  Next, the Claimant became a transporter.  After the doctor performed a surgical procedure, \nthe  Claimant  had  to  transport  the  dirty  instruments  and  utensils  from  the  operating  room  to  the \nsterilization area.  She confirmed that she was working in this position when she got injured on \nMarch 4, 2019.  \nThe Claimant  confirmed that there  was  a determination of  compensability for the injury \nthat  she  sustained  on  March  4.    She  further  confirmed  she  was  injured  when  the  elevator  door \nslammed and knocked her over a small cart that she was pulling.  The Claimant  agreed that she \n\nHampton- G901606 \n \n9 \n \nsustained an injury to her right shoulder during this incident.  However, the Respondents denied \nthe claim and it came on for a hearing before the Commission.  She agreed that a determination \nwas made that she sustained a compensable right shoulder injury, in the form of a massive rotator \ncuff tear.  The Claimant confirmed that she has had extensive medical treatment since her injury. \nOn June 20, 2019, Dr. Ahmadi performed right shoulder surgery to repair the rotator cuff.  \nThe Claimant testified that following the surgery she was hurting and in constant pain in one area.  \nAs a result, Dr. Ahmadi ordered physical therapy.  The Claimant had an ultrasound on August 20, \n2020, and another one February 2, 2021.  She confirmed that she had been treating and following \nup with Dr. Ahmadi throughout this period. The Claimant agreed that the first ultrasound showed \natrophy and the second ultrasound showed bursitis.   \nOn March 17, 2021, Dr. Ahmadi released the Claimant from care with a 6% whole body \nimpairment  rating  and  no  restrictions.    The  Claimant  confirmed  that  the  Respondents  started \npaying her for the rating.  She admitted that during the time limit between her injury and when Dr. \nAhmadi released her, the condition of her shoulder was getting worse.   \nThe Claimant testified that she was terminated by UAMS, when she exhausted her FMLA.  \nShe  confirmed  that  during  the  course  of  her  treatment  with  Dr.  Ahmadi,  she  was  on  light  duty.  \nThe Claimant confirmed that she was released by Dr. Ahmadi on March 17, 2021.  According to \nthe Claimant, Dr. Ahmadi left his employment  with UAMS.  At that point, the Claimant began \ntreating under the care of Dr. O’Malley.  She confirmed that he ordered more physical therapy for \nher shoulder.  The Claimant testified that the therapy gave her some relief, but the pain was still \nthere.                                         \nShe confirmed that Dr. O’Malley ordered an MRI of her right shoulder in February 2022. \nThe  Claimant  agreed  that  it  did  not  show  a  re-tear  in  her  shoulder.  As  a  result,  Dr. O’Malley \n\nHampton- G901606 \n \n10 \n \nordered  a functional capacity evaluation (FCE).    According to the Claimant, she was down for \ntwo days after undergoing this evaluation.  She explained that she used an icepack to help relieve \nthe swelling and tightness.  The Claimant agreed that the results of the evaluation revealed that she \nput forth a reliable effort, and it returned her to light duty work.  She agreed that on October 20, \n2022,  Dr. O’Malley  assigned  her  an  added  1%  impairment  rating  for  her  shoulder,  which  the \nRespondents accepted and paid. \nThe  Claimant  confirmed  that  she  has  not  worked  since  her  March  4,  2019,  injury.  She \nadmitted that she met with a vocational rehabilitation specialist, Keondra Hampton.  However, the \nClaimant denied that Ms. Hampton found any jobs for her.  The Claimant testified that she told \nMs. Hampton that she was willing to work if she could find a job that she could perform without \nbeing in pain.  She further testified that it was her plan to work after full retirement as long as she \ncould.    \nAccording to the Claimant, she is right-handed.  She denied that there are any jobs she can \nperform.  The Claimant also denied that she could perform any of her prior jobs that she named \nearlier, which were with  Timex, Cliff and Associates,  and New York Air Brake.   The Claimant \nstated that she can only lift five (5) pounds using her right arm and ten (10) pounds with her left \narm.  She testified that if she lifts something too heavy, it causes her shoulder to swell and tighten.   \nAccording  to  the  Claimant,  she  is  unable  to  remove  items  from  the  top  shelf  of  her  refrigerator \nwith her right hand/arm.  Instead, she explained that she must use her left hand. \nThe Claimant testified that a typical day for her includes taking a hot shower to allow the \nwater to run over her shoulder.  Then, she makes her bed.  According to the Claimant, she does \nsome basic household chores, including sweeping and mopping.  However, the Claimant is unable \nto  vacuum  because  of  the  vibrations.    She  eats  and  then  she  does  some  home  exercises  for  her \n\nHampton- G901606 \n \n11 \n \nshoulder as recommended by her physical therapist.  According to the Claimant, sometimes after \ndoing the exercises, she has tightness in her shoulder and must use an icepack on it. \nShe was asked about her living situation.  According to the Claimant, she and two of her \nfriends live together.  They moved in together after her friends’ wives passed away.  The Claimant \nexplained that one of her housemates has cancer and the other one has degenerative arthritis, and \nof course she has shoulder problems.  According to the Claimant, the three of them help each other \nout.    She  confirmed  she  has  difficulty  using  her  right  hand  to  do  laundry.    The  Claimant  takes \nibuprofen and Tylenol. According to the Claimant, she takes four ibuprofens in the morning and \nfour at bedtime.  The Claimant sometimes takes a muscle relaxer.  She confirmed that she is sixty-\nseven (67) years old.  However, she denied that it was her plan to have to live with roommates.  \nInstead, the Claimant explained she had planned to live on her own and continue working until she \ncould not work anymore.    \nOn cross-examination, the Claimant confirmed that she has not seen anyone for her right \narm since she last saw Dr. O’Malley.  The Claimant does not have a planned doctor’s visit.  She \nconfirmed that she worked as an inventory coordinator for New York Air Brake.  The Claimant \ntestified that when a truck brought in a shipment, the guys would bring the inventory to her booth.  \nShe would input everything into the computer and put it on a shelf.  When the bins ran low,  the \nClaimant had to refill the bins. The Claimant confirmed that the inventory included small parts, \nsuch as valves and screws.  She denied that she could perform any of her prior work, including her \nwork  at  Timex  due  to  the  movements  required  of  her  arm  and  the  walking  involved  in each \nposition. The Claimant also stated that she has a five-pound weight restriction.  She admitted that \nat the earlier hearing she said that she could perform her job at Timex.  However, the Claimant \nexplained that her shoulder condition has changed and gotten worse on a daily basis. \n\nHampton- G901606 \n \n12 \n \nThe Claimant confirmed that she has not looked for work anywhere besides UAMS since \nher release by her doctors.   She confirmed that she is currently drawing Social Security Disability \nbenefits.    The  Claimant  began  drawing  these  benefits  in  September  or  October  2021,  when  she \nturned sixty-five (65).   She denied that she had planned to retire at the age of sixty-seven (67).   \nOn redirect examination, the Claimant testified that she had planned to continue working \nand draw Social Security benefits.        \nOn  re-cross  examination,  the  Claimant  testified  that  she  does  not  receive  any  retirement \nbenefits from UAMS because she worked for them only nine years.  According to the Claimant, \nhad she reached ten (10) years of employment at UAMS, she would be collecting benefits from \nthere but her injury prevented her from reaching the ten (10)-year mark.       \n                                               Medical Evidence \n The  first  record  of  medical  evidence  shows  that on  March  5,  2019,  the  Claimant  sought \ninitial  medical  treatment  from  UAMS,  under  the  care  of  Lakendra  Ready,  APRN,  CNP.    The \nClaimant provided a history of pushing a cart into the elevator one day ago, when the doors closed \non  her  back,  and  pushed  her  forward  into  the  cart.    She  reported  mid-thoracic  pain  and  neck \nstiffness  at  that  time.    Ready  placed  the  Claimant  on  modified  work  duty  and  prescribed  a \nmedication regimen. \n On  March  12,  2019,  the  Claimant  returned  to  Ms.  Ready,  her  nurse  practitioner,  for  a \nfollow-up  evaluation.    The  Claimant  reported  continued  pain in  her  scapula  area  that  felt  tight.  \nAlthough the Claimant had been taking Flexeril at night and ibuprofen 600 mg twice a day, she \nreported that these medications had been only mildly effective in relieving her symptoms.  Ready \ncontinued the Claimant on modified duty.   \n\nHampton- G901606 \n \n13 \n \nThe Claimant presented to Dr. Gregory D. Sketas, with the UAMS Family Medical Center \non March 20, 2019, with a complaint of an elevator door having closed on her shoulder.  Dr. Sketas \nexamined the Claimant’s right shoulder, which resulted in an assessment of “scapular contusion.” \nTherefore, Dr. Sketas opined that the Claimant  could return to light duty  for the next couple of \nweeks and then could try her normal duty afterwards. \nOn April 30, 2019, the Claimant returned to the Family Medical Clinic for follow-up care \nunder  Dr.  Jamie  Howard.  The  Claimant  reported  having  been  evaluated  at  St.  Vincent’s \nEmergency Department.  During the Claimant’s ER visit, they performed x-rays which revealed \nno fracture.  However, the Claimant reported that she continued to have burning, aching pain in \nthe right scapular area.  The Claimant also reported intermittent swelling in that area.  Yet, a repeat \nx-ray did not reveal any  evidence of a fracture.   Dr. Howard assessed the Claimant with “acute \nright shoulder pain,” for which she referred the Claimant to the Orthopedic Surgery Department \nat UAMS.      \nThe  Claimant  underwent  an  evaluation  on  May  7,  2019,  by  Dr.  Shahryar  Ahmadi,  an \northopedic specialist.  At that time, the Claimant complained of significant pain over the medial \nborder of her right scapula.   Dr. Ahmadi ordered an ultrasound of the Claimant’s right shoulder \nthat included the periscapular muscle and rotator cuff muscles. \nOn  May  14,  2019,  the  Claimant  underwent  an  ultrasound  of  her  upper  right  extremity, \nwhich revealed:  \nMassive  rotator  cuff  tear  involving  the  entire  supraspinatus,  infraspinatus,  and  near \ncomplete tear of the subscapularis, as detailed above.  Medial retraction of the tendons is \nseen.  There is also focal partial tear of the lateral insertional fibers of the deltoid. \nNo definite evidence of intramuscular abnormality along the right periscapular region.  \n\nHampton- G901606 \n \n14 \n \nDr. Ahmadi reviewed the results of the ultrasound with the Claimant on May 21, 2019.  At \nthat time, Dr. Ahmadi opined that the ultrasound revealed that she had sustained “a massive rotator \ncuff tear in her right shoulder.”  The Claimant continued with pain with no improvement since her \ninjury and for this reason she suffered significant weakness in her shoulder.  Dr. Ahmadi discussed \nwith  the  Claimant  both  operative  versus  nonoperative  management  methods  of  treatment.  Dr. \nAhmadi offered to perform a right shoulder arthroscopy and rotator cuff repair with the possibility \nof using allograft.  The Claimant opted to go ahead with the surgery.  \nOn June 20, 2019, Dr. Ahmadi performed “a right shoulder arthroscopy and rotator cuff \nrepair, subacromial decompression and biceps tenodesis,” to repair a massive rotator cuff tear. \nThe Claimant followed-up with Dr. Ahmadi on July 3, 2019, for post-surgical care of her \nright  shoulder  arthroscopy  and  rotator  cuff  repair.    At  that  time,  Dr.  Ahmadi  ordered  physical \ntherapy,  which  the  Claimant  tolerated  well.    However,  the  Claimant  continued  with  significant \npain and stiffness around the shoulder. \nShe continued to present to Dr. Ahmadi for clinical reassessment of her ongoing pain and \nother related symptoms due to her right shoulder injury.   \nOn  January  8,  2020,  the  Claimant  presented  to  the  UAMS  Orthopedic  Clinic  for \nreassessment  of  her  right  shoulder  injury.      Dr.  Isaac  B.  Majors evaluated the Claimant’s  right \nshoulder.  At that time, the Claimant was seven (7) months out from right shoulder arthroscopy \nand rotator cuff repair.  However, the Claimant had continued complaints of stiffness and pain in \nher right shoulder.  \nSubsequently  on  July  21,  2020,  the  Claimant  returned  to  Dr.  Ahmadi  for  clinical \nreassessment of her right shoulder.  At that time, he noted that the Claimant was especially sore in \nthe periscapular area.  Therefore, Dr. Ahmadi ordered an ultrasound for further investigation. \n\nHampton- G901606 \n \n15 \n \nAnother ultrasound of the Claimant’s  right  shoulder  was  performed  on  August  6,  2020.  \nDr. Gitanjali Baja rendered the following impression: \nPostsurgical changes from prior rotator cuff repair.  \n \nModerate atrophy of the infraspinatus muscle belly, otherwise no focal abnormality noted \nat the site of point of tenderness.  \n \nMarked attenuation of the infraspinatus tendon at the footprint limiting detailed evaluation \nhowever no discrete retear noted.  The remainder of the cuff appears grossly intact. \n \nThe Claimant returned to Dr. Ahmadi on August 19, 2020.  He opined that the ultrasound  \nshowed  a  rotator  cuff  tear  that  had  completely  healed.    However,  the  Claimant  complained  of \ncontinued right shoulder pain, especially with the procedure part of the shoulder.  He reassured the \nClaimant about the healing of the tendon.  At that point, Dr. Ahmadi instructed the Claimant to go \nback  to  her  normal  activity  without  any  restriction  and  to  follow-up  with  him  on  an  as  needed \nbasis.   \nFive  months  later,  on  January  20,  2021,  the  Claimant  returned  to  Dr.  Ahmadi  with \ncontinued complaints of right-sided posterior periscapular pain.  At that time, he sent the Claimant \nfor an ultrasound evaluation of periscapular pain generating area. \nOn February 2, 2021, Dr. Tarun Pandley opined that the ultrasound of the Claimant’s right \nextremity  revealed:  “Periscapular  ovoid  hypoechoic  area  along  the  superomedial  border  of  the \nscapula is noted that may represent mild periscapular bursitis.  This coincided with area of probe \ntenderness upon examination.” \nThe next day, Dr. Ahmadi saw the Claimant for a follow-up clinic visit.  He stated that the \nultrasound showed that the rotator cuff muscle seemed strong.  However, Dr. Ahmadi opined that \nthe  Claimant  was  significantly  tender  over  the  medial  border  of  the  scapula.    He  assessed  the \nClaimant with “Chronic periscapular pain on the right side.”   Therefore, Dr. Ahmadi performed a \n\nHampton- G901606 \n \n16 \n \nsteroid  injection  in  the  bursal  tissue,  which  the  Claimant  tolerated  well.    After  observation,  Dr. \nAhmadi discharged the Claimant home with instructions to follow-up with him for further clinical \nassessment.  \nDr. Ahmadi declared on March 17, 2021, that the Claimant had reached maximum medical \nimprovement for her shoulder injury.  He assessed the Claimant with a 6% permanent impairment \nto the body as a whole for her shoulder injury utilizing the fourth (4\nth\n) edition of the AMA Guides.  \nDespite  the  Claimant’s  ongoing  complaints  of  the  right  shoulder, Dr.  Ahmadi  released  the \nClaimant to normal activity without any restrictions. \nOn September 16, 2021, the Claimant presented to Dr. Lawrence O’Malley at the UAMS \nOrthopedic Clinic for evaluation of her continued right shoulder pain.  At that time, Dr. O’Malley \ndiscussed  with  the  Claimant  that  there  was  no  surgical  procedure  was  indicated.    However,  Dr. \nO’Malley recommended physical therapy to help improve the Claimant’s symptoms and returned \nher to full duty.   \nThe  Claimant  returned  to Dr.  O’Malley  on  January  20,  2022,  for  evaluation  of  her \ncontinued right shoulder pain and stiffness.  The Claimant reported that her shoulder pain improved \nafter  rotator  cuff  repair  surgery,  but  she  continued  to  have  pain  in  her  right  scapula.    She  also \nreported that she had completed physical therapy for her scapular dyskinesis since her last visit, \nbut she continued to have worsening pain.  His impression was “65-year-old female with persistent \nright shoulder pain in the setting of prior rotator cuff repair.”  Therefore, Dr. O’Malley ordered an \nMRI of her right shoulder. \nAn MRI was performed of the Claimant’s right shoulder on February 13, 2022,  with  an \nimpression of: \n1.  Postsurgical changes secondary to cuff-repair, with moderate fatty atrophy of the  \n\nHampton- G901606 \n \n17 \n \nsupraspinatus  and  infraspinatus.    Attenuation  of  the  supraspinatus  and  infraspinatus     \ntendons without evidence of tear. \n \n2.  Mild to moderate glenohumeral osteoarthritis. \n3.  Mild AC joint degeneration.  \nOn February 17, 2022, the Claimant saw Dr. O’Malley for the results of her MRI.  At that \ntime, he noted that the Claimant had not improved with physical therapy and anti-inflammatories.  \nDr. O’Malley recommended that the Claimant undergo trigger point injections to her right shoulder \nblade.  \nThe Claimant returned to Dr. O’Malley on June 9, 2022 with continued right shoulder pain.  \nTherefore, Dr. O’Malley performed a trigger point injection on the Claimant’s right shoulder and \nordered more physical therapy.  \nOn August 18, 2022, the Claimant returned for a follow-up visit with Dr. O’Malley for her \nright  shoulder  pain.    The  Claimant  specifically  complained  of  some  medial  scapular  pain.  \nOtherwise, she continued to improve.  He discussed with the Claimant that surgical intervention \nwas  not  needed.    Dr. O’Malley  suggested  the  Claimant  continue  with  home  physical  therapy \nexercises.                   \nHowever, on October 5, 2022, Dr. O’Malley recommended that the Claimant  undergo a \nfunctional capacity evaluation (FCE).  \nOn  October  14,  2022,  the  Claimant  underwent  a  functional  capacity  evaluation.  The \nClaimant completed the evaluation with results demonstrating that she put forth a reliable effort \nwith  fifty-two  (52)  out  of  fifty-two  (52)  consistency  measures  within  expected  limits.  Per  this \nevaluation, the Claimant can occasionally bi-manual lift/carry up to twenty (20) pounds and the \nability to lift/carry up to ten pounds on a frequent basis.  She demonstrated the ability to perform \nreaching overhead occasionally.  Overall, the Claimant demonstrated the ability to perform work \n\nHampton- G901606 \n \n18 \n \nin the LIGHT classification of work as defined by the U.S. Department of Labor’s guidelines over \nthe course of a normal 8-hour workday with limitations noted above. \nDr. O’Malley saw the Claimant on October 20, 2022, following her FCE.  He noticed that \nthe Claimant continued to have pain in her shoulder but was continuing to improve.  However, the \nClaimant reported that her pain was localized about the scapula.  Based on the fourth (4\nth\n) edition \nof  the  AMA  Guides,  Dr. O’Malley  assessed  the  Claimant  with  a  7%  whole  person  permanent \nimpairment.  Dr. O’Malley placed the Claimant on permanent restrictions of no lifting greater than \nten (10) pounds on her right upper extremity.  He placed the Claimant at MMI.  Dr. O’Malley’s \nimpression  was:  “...  persistent  right  shoulder  pain  in  the  setting  of  prior  rotator  cuff, scapular \ndyskinesia.”  The Claimant elected to proceed with a right shoulder subacromial injection, which \nshe tolerated well.      \n At the request of the Public Employee Claims Division, the Claimant underwent a complete \nVocational  Rehabilitation  Initial  Evaluation.    The  evaluation  was  performed  on  December  16, \n2022, by Keondra Hampton, MS, CRC.   Per this report, the examiner stated that the Claimant is \ncapable of performing work in the light category.  However, Ms. Hampton stated that due to the \nClaimant’s  limited  work  history  profile  of  unskilled  and  semi-skilled  occupations,  she  does  not \nhave any transferable skills that would transfer to many occupations within the Light category of \nwork.  Ms. Hampton did not offer the Claimant a job.  \nAdjudication \n A.   Permanent and Total Disability Benefits       \n“Permanent   total   disability”   means   the   inability   because   of   the   compensable   injury   or \noccupational disease, to earn any meaningful wages in the same or other employment.  Ark. Code \nAnn. § 11-9-519(e)(1).  Furthermore, the statute provides that the burden of proof shall be on the \n\nHampton- G901606 \n \n19 \n \ninjured  employee  to  prove  their  inability  to  earn  any  meaningful  wage  in  the  same  or  other \nemployment. Ark. Code Ann. §11-9-519 (e)(2). \n  A  permanent  impairment  rating  is  not  a  prerequisite  to  consider  the  effects  of  a \ncompensable injury or injuries in a claim for permanent total disability.  Rutherford v. Mid-Delta \nCommunity Services, Inc., 102 Ark. App. 317, 285 S.W.3d 248 (2008). \nThe first issue for determination is whether the Claimant has been rendered permanently \nand totally disabled due to her compensable right shoulder injury of March 4, 2019.   The Claimant \nunderwent right shoulder arthroscopy rotator cuff repair by Dr. Ahmadi due to a massive rotator \ncuff  tear  on  June  20,  2019.    Subsequently,  the  Claimant  underwent  extensive  conservative \ntreatment  including  physical  therapy,  various  medication  regimens,  and  steroid  injections.    She \nreceived some relief from the surgery.  However, the Claimant has continued with significant right \nshoulder  pain  despite  surgical  intervention  and  extensive  conservative  treatment.  Nevertheless, \nthe parties stipulated that the Claimant has been assessed with a 7% permanent impairment for her \nright shoulder injury, which has been accepted and paid for by Respondents No. 1.   \nThe  Claimant  underwent  an  FCE  with  reliable  results  on  October  14,  2022.    Per  this \nevaluation the Claimant put forth a perfect effort, and she was released to LIGHT duty work, with \napplicable  restrictions  noted  above.    On  October  20, 2022, Dr. O’Malley placed  the  afore  light \nduty  restrictions  on  the  Claimant  permanently.    Although  the  Claimant  has  incurred  significant \nphysical  restrictions  due  to  her  compensable  right  shoulder  injury,  she  has  not  been  rendered \npermanently and totally disabled due to her compensable right shoulder injury of March 4, 2019.   \nHere, the permanent effects of the Claimant’s work-related injury prevent the Claimant from \nearning the same wages which she was receiving at the time of the injury.  However, the Claimant \nhas  the  ability  to  earn wages  in  other  less  strenuous  employment,  which would  pay  less  given  her \n\nHampton- G901606 \n \n20 \n \nlimited education of only a high school diploma.  Her testimony demonstrates she is permanently and \ntotally disabled.  I did not find the Claimant credible in this regard.  The Claimant’s testimony that \nshe has been rendered totally disabled by her compensable shoulder injury is not corroborated by the \nmedical  evidence  (particularly  Dr.  O’Malley’s  expert  opinion  of  her  being  placed  on  light  duty \nrestrictions), or the vocational  specialist’s evaluation  of the Claimant’s  limited ability to  return to \nwork in the light category.   Hence, the preponderance of credible evidence shows that the Claimant \nhas the ability to perform work, at least in the LIGHT category.  Moreover, no doctor has opined that \nthe Claimant is incapable of returning to other employment in the sedentary category.  Hence, there \nis  no  credible  evidence  of  record  whatsoever  proving  that  the  Claimant  has  been  rendered \npermanently  and  totally  disabled  as  a  result  of  her  compensable  right  shoulder  injury  of  March  4, \n2019.    \nTherefore,  based  on  the  evidence  before  me,  I  find  that  the  Claimant  failed  to  prove  by  a \npreponderance of the evidence that her compensable shoulder injury of March 4, 2019, has rendered \nher permanently and totally disabled.        \nB. Wage Loss \nFor  a Claimant with  an  unscheduled injury  who  is not permanently  and totally disabled, \nthe Claimant’s entitlement to permanent partial disability benefits is controlled by Ark. Code Ann. \n§11-9-522.    Permanent  disability  compensation  is  paid  where  the  permanent  effects  of  a  work-\nrelated injury prevent the worker from earning the wages which the worker was receiving at the \ntime of the injury.  A permanent impairment rating is a prerequisite for considering the effects of \na compensable injury in a claim for permanent partial disability for wage loss.  Wal-Mart Stores, \nInc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000). \n\nHampton- G901606 \n \n21 \n \nWhen making a determination of the degree of permanent disability sustained by an injured \nworker  with  an  unscheduled  injury,  the  Commission  must  consider  evidence  demonstrating  the \ndegree to which the worker's anatomical disabilities impair the worker’s earning capacity, as well \nas other factors such as the worker's age, education, work experience, and other matters which may \nreasonably  be  expected  to  affect  the  worker’s  future  earning capacity.  Such  other  matters  may \ninclude, but are not limited to, motivation, post-injury income, credibility, and demeanor.  Glass \nv. Edens, 233 Ark. 786, 346 S.W.2d 685 (1961); City of Fayetteville v. Guess, 10 Ark. App. 313, \n663 S.W.2d 946 (1984); Curry v. Franklin Electric, 32 Ark. App. 168, 798 S.W.2d 130 (1990).   \nHere,  the  Claimant  has  asserted  her  entitlement  to  wage-loss  disability.    The  parties \nstipulated that the Claimant sustained a compensable injury to her right shoulder on March 4, 2019.  \nThey  also  stipulated  that  the  Claimant  sustained  a  total  7%  permanent  impairment  rating  to  her \nshoulder.    Respondents  No.  1  have  accepted  and  paid  this  rating.      The  Claimant  underwent  a \nfunctional  capacity  evaluation  which  revealed  she  has  capabilities  of  performing  work  in  the \nLIGHT  category  per  U.S.  Dept.  of  Labor’s  guidelines  over  the  course  of  a  normal  eight-hour \nworkday.   \nThe Claimant is advanced (67) in age and has no transferable skills.  My conclusion of this \nwas  confirmed  by  the  vocational  rehabilitation  specialist’s  findings  and  my  review  of  the \nClaimant’s work history, education, and other relevant evidence.  Specifically, the Claimant has a \nlimited education (high school graduate)  and has performed  factory assembly line jobs over the \ncourse of her life.  In fact, in December 2022, the vocational specialist opined that the Claimant \nhas a limited work history profile of unskilled and semi-skilled occupations.  This evaluator also \nopined that due to the afore reasons, the Claimant does not have any transferable skills that would \ntransfer to many occupations within the Light category of work.   \n\nHampton- G901606 \n \n22 \n \nAt the time of her injury, the Claimant had to lift heavy trays of operating instruments.  She \nsustained an injury to her shoulder on March  4, 2019, which required surgery.   Specifically, on \nJune  20,  2019,  Dr.  Ahmadi  performed “a  right  shoulder  arthroscopy  and  rotator  cuff  repair, \nsubacromial decompression and biceps tenodesis.” \nFollowing surgery the Claimant underwent extensive conservative treatment, particularly \nin the form of physical therapy and a medication regimen.  On March 17, 2021, Dr. Ahmadi opined \nthat  the  Claimant  had  reached  maximum  medical  improvement  for  her  shoulder  injury.    Dr. \nAhmadi assessed the Claimant with a 6% impairment rating to the body as a whole for her shoulder \ninjury and released her to normal activities without any restrictions.  Respondents No. 1 accepted \nthis rating and have paid it in full. \nHowever, the Claimant continued with pain and tightness of the right shoulder.  She came \nunder the care of Dr. O’Malley.  He ordered additional diagnostic tests.  Dr. O’Malley performed \ntrigger point injections and ordered additional physical therapy.  Ultimately, in October 2022, Dr. \nO’Malley released the Claimant from care and assessed her with an additional 1%, which has been \naccepted and paid.  He placed permanent restrictions on the Claimant per her FCE, which revealed \nshe could perform work in the LIGHT category.          \nI found the Claimant to be a somewhat credible witness although I am not persuaded by \nher testimony that she has been rendered permanently and totally disabled by her shoulder injury.   \nYet my review of the relevant evidence shows that the Claimant has suffered significant physical \nrestrictions considering she is unskilled and right-handed.  Her testimony shows that she is unable \nto reach objects on the top shelf of her refrigerator.  The Claimant’s testimony also shows that her \neveryday activities have been severely restricted due to her compensable right shoulder injury.  No \nevidence to the contrary has been presented.   \n\nHampton- G901606 \n \n23 \n \nNevertheless, the Claimant testified that she continues to suffer pain and tightness in her \nright shoulder.  She has not worked since her compensable injury.  The Claimant testified that she \nhad worked for UAMS nine (9) years at the point of her termination once she exhausted all of her \nFMLA.  Her testimony shows that she draws Social Security Retirement.  However, the Claimant \ndenied  receiving  any  type  of  retirement  benefits  from  UAMS  because  she  did  not  meet  the  ten \n(10)-year requirement of employment with them.  The Claimant testified that she was a few months \nshort of being qualified to draw a pension from UAMS.   No testimony to the contrary has been \npresented.  Conversely, the Claimant credibly testified that she had planned to work beyond full \nretirement.  She stated that she intended to receive retirement and continue working as long as she \ncould  work.    The  Claimant  readily  admitted  she  has  not  looked  for  work  because  she  does  not \nbelieve she can work essentially because of ongoing chronic shoulder pain, for which she takes \nibuprofen and occasionally she takes a muscle relaxer.        \n Based  on  my  review  of  the  evidence,  including  the  Claimant’s  credible  testimony,  and \nwhen considering her advanced age; limited education; work experience; the nature and extent of \nher shoulder injury; the 7% permanent anatomical impairment rating to the body as a whole for \nher right shoulder injury; the vocational specialist assessment of no transferrable skills and limit \nlight duty work options; her most recent primary work experience of heavy duty work; permanent \nLIGHT duty restrictions, lack of interest in looking for work within her restrictions; considering  \nshe had to take early retirement, and all other relevant matters reasonably expected to affect her \nfuture earning capacity, I find that the Claimant has proven by a preponderance of the evidence \nthat she sustained a 33%  wage-loss earning capacity in excess of her 7% permanent anatomical \nimpairment rating to the body as a whole for her compensable right shoulder injury of March  4, \n2019.       \n\nHampton- G901606 \n \n24 \n \n Of note, although the Claimant met with a vocational rehabilitation specialist, there is no \nevidence showing that she was ever offered a job by the respondent-employer within her physical \nrestrictions.  Moreover,  there  is  no  evidence  whatsoever  demonstrating  that  the  vocational \nspecialist found any potential employment opportunities for the Claimant.      \nC. Controverted Attorney’s Fee  \nThe parties stipulated that Respondents No. 1 have controverted this claim for additional \nbenefits.  Per this stipulation and the award of benefits herein, the Claimant’s attorney is entitled \nto the maximum statutory attorney’s fee on all indemnity awarded herein in accordance with Ark. \nCode Ann. §11-9-715(a) (2) (A) (Repl. 2012).           \nAWARD \nRespondents No. 1 are directed to pay benefits in accordance with the findings of fact and \nconclusions of law set forth above.  All accrued sums shall be paid in lump sum without discount, \nand this award shall earn interest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-\n809 (Repl. 2012).   See Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W. 2d 57 \n(1995).  \nPursuant to Ark. Code Ann. §11-9-715(a) (2) (A) (Repl. 2012), the Claimant's attorney is \nentitled to a 25% attorney's fee on the indemnity benefits awarded herein.  This fee is to be paid \none-half by the carrier and one-half by the Claimant.  \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          Hon. Chandra L. Black \n                 Administrative Law Judge \n \n \n\nHampton- G901606 \n \n25","textLength":48443,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: G901606 LOUISA HAMPTON, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS MEDICAL SCIENCES/UAMS, EMPLOYER RESPONDENT NO. 1 PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT NO. 1 DEATH AND PERMANENT TOTAL DISABILITY TRUST...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["shoulder","neck","back","rotator cuff","repetitive","thoracic","fracture"],"fetchedAt":"2026-05-19T23:08:05.998Z"},{"id":"full_commission-G900538-2023-05-26","awccNumber":"G900538","decisionDate":"2023-05-26","decisionYear":2023,"opinionType":"full_commission","claimantName":"Eldridge Howard","employerName":"City Of Faith Prison Ministries","title":"HOWARD VS. CITY OF FAITH PRISON MINISTRIES AWCC# G900538 MAY 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Howard_Eldridge_G900538_20230526.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Howard_Eldridge_G900538_20230526.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G900538 \n \nELDRIDGE  HOWARD, III, \nEMPLOYEE \n \nCLAIMANT \nCITY OF FAITH PRISON MINISTRIES,  \nEMPLOYER \n \nRESPONDENT \nTECHNOLOGY INSURANCE CO., CARRIER \nAMTRUST NORTH AMERICA, TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 26, 2023  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE DARRELL F. BROWN, JR., \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE WILLIAM C. FRYE, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nSeptember 20, 2022.  The administrative law judge found that the claimant \ndid not prove he sustained a compensable injury.  After reviewing the entire \nrecord de novo, the Full Commission reverses the administrative law \njudge’s opinion.  The Full Commission finds that the claimant proved he \nsustained a compensable injury to his left elbow.     \nI.  HISTORY \n Eldridge Charles Howard, III, now age 40, testified that he was \ndiagnosed as having epileptic seizures beginning in 2005.  Dr. David M. \n\nHOWARD – G900538  2\n  \n \n \nRhodes treated Mr. Howard, and corresponded with Dr. Robin Jeffers-Perry \non May 26, 2005:   \nThe patient is a 22 year old right hand dominant male, \nstudent, who on 5/7/05 was involved in a motor vehicle \naccident.  He sustained an open left elbow dislocation \nwith brachial artery injury and open left distal radius and ulnar \nfracture.  He complains of pain in the arm that is exacerbated \nwith range of motion and alleviated with rest.... \nThere is an ex/fix across the elbow and across the left distal \nradius with decreased sensation to light touch in the radial \nand ulnar nerve distribution.... \nX-RAYS:  2 views of the left elbow were ordered, performed \nand interpreted by me with the following findings:  Show \nsubluxation of the radial head.  2 views of the left wrist show \nsegmental bone deformity of the distal radius.   \n \n Dr. Rhodes assessed “1.  Status post left elbow and distal radius \nopen fracture ex/fix with brachial artery graft....Schedule left elbow ex/fix \nremoval.”   \n Dr. Rhodes reported on May 27, 2005, “Mr. Eldridge Howard was \ntaken to the operating room today for removal of external fixator across his \nleft elbow under anesthesia....He was given a follow-up appointment that \nday with therapy to get placed in a hinged elbow brace.”   \n Dr. Rhodes informed Dr. Jeffers-Perry on June 17, 2005, “Mr. \nEldridge Howard was taken to the operating room today for removal of his \nex/fix of his left distal radius.”   \n Dr. Rhodes’ assessment on July 18, 2005 was “1.  Left distal radius \nfracture and brachial plexus injury and elbow fracture dislocation.”       \n\nHOWARD – G900538  3\n  \n \n \n Dr. Rhodes reported on July 22, 2005, “Mr. Eldridge Howard was \ntaken to the operating room today for treatment of his left distal radius non-\nunion.”   \nDr. David N. Collins evaluated the claimant on August 31, 2005: \nMr. Howard is a 22-year old patient seen in consultation for \nhis right shoulder at the request of David Rhodes, M.D.  His \nchief complaint is pain and dysfunction.  His primary care \nphysician is Dr. Perry. \nMr. Howard was involved in severe accident on 5/07/05.  He \napparently was treated in Memphis for an open, left elbow \ndislocation with brachial artery injury and a left open distal \nradius and ulna fracture.  He came to the care of Dr. Rhodes \non 5/26/05.  At that time, he had an ex-fix in place.  He had \nsome concerns regarding the injury relative to infection.  Over \nthe course of time, he was treated for nonunion and went on \nto have additional surgery with bone grafting.  It was \ndetermined at some point that he had a brachial plexus injury.  \nHe continues under Dr. Rhodes’ care for the upper extremity \nwith concerns regarding the elbow, forearm, and shoulder.   \n \n Dr. Collins gave the following impression:  “It appears that Mr. \nHoward sustained an injury of significant magnitude to the left upper \nextremity....There are no specific problems related to the shoulder, other \nthan weakness which should hopefully improve over time....The greatest \nconcern, I would think at this point, is his elbow....There are no specific \nindications for additional imaging studies or diagnostic tests regarding the \nleft shoulder.  I will follow him as needed.”     \n Dr. Michael M. Moore corresponded with Dr. Rhodes on September \n13, 2005: \n\nHOWARD – G900538  4\n  \n \n \nThank you very much for referring Eldridge Howard for \nconsultation.  He was seen at the Arkansas Hand Center on \n09/13/05 for Second Opinion Evaluation.  He is a pleasant, \n22-year-old, right-hand dominant student who was involved in \na motor vehicle accident on 05/07/05.  He sustained severe \ninjuries to the left wrist and elbow....Apparently, external \nfixation devices were placed on the wrist and elbow.  Mr. \nHoward required repair of the brachial artery.  In addition, skin \ngrafting was required to cover a wound over the anteromedial \naspect of the elbow.... \nIt is my opinion Mr. Howard has sustained a complex injury to \nthe left upper extremity....If Mr. Howard were my patient, it \nwould be my recommendation that a Zoom CT scan of the left \ndistal radius be performed.  If there appeared to be healing of \nthe distal radius, I would recommend removing the plate and \ndebriding the fracture site.   \n \n Dr. Rhodes performed a “debridement of dorsal complex of left distal \nradius for osteomyelitis” on October 4, 2005.  The post-operative diagnosis \nwas “Retained hardware, left distal radius fracture, with chronic distal radius \nosteomyelitis, with extensor carpi radialis brevis and tongus tendon \nadhesions and adhesions of the flexor carpi radialis.” \n Dr. Rhodes’ assessment on October 10, 2005 was “1.  Left distal \nradius hardware removal with osteomyelitis.”     \n The claimant testified, “After the ’05 injury I was placed on disability \nprobably in about 2007.”  An MRI of the claimant’s left knee on January 21, \n2008 showed, among other things, a “nondisplaced intra-articular fracture.”  \nThe assessment of Dr. Robert C. Matthias on December 3, 2008 was \n“Severe left elbow degenerative disease following a severe traumatic \ninjury.”     \n\nHOWARD – G900538  5\n  \n \n \n Dr. Jeanine Andersson evaluated the claimant on July 15, 2013:  \n“The patient is a 30-year-old right-hand dominant male who has a \ndebilitating seizure disorder.  He has no use of his left arm secondary to an \nMVA while having a seizure.  He comes in today for evaluation of masses \nover his right hand which have progressively enlarged and are severely \npainful.  Since this is his only useful hand, he wishes to have these \nsurgically excised....I discussed with the patient today both nonsurgical and \nsurgical treatment options.  The patient would like to proceed with surgical \nexcision of multiple hand masses.”   \n Dr. Andersson assessed “#1  right hand multiple soft tissue masses \n– worsening of progressively enlarging.  #2)  left hand paralysis following \nMVA.  #3  seizure disorder.”   \n Dr. Andersson performed a procedure on July 30, 2013 which \nincluded “Right hand mass excision.”  The post-operative diagnosis was \n“Right hand multiple masses, including three masses of right thumb, two \nmasses of right index finger and one mass in palm of hand.” \n Dr. Willis Courtney saw the claimant at Arkansas Neurology & \nEpilepsy Center on April 16, 2014: \nThe patient is a 31 year old male who presents with seizure \ndisorder.  The patient’s typical seizures are complex \npartial....The patient was referred by Dr. Robin Perry.  The \npatient was last evaluated by me on November 19, 2013.  At \nthat time, the patient reported recurrent episodes of seizures \nas well as paroxysmal episodes of involuntary nystagmus and \n\nHOWARD – G900538  6\n  \n \n \ngait ataxia.  The patient was scheduled for an EEG to assist in \ndetermining if additional or alternative anticonvulsant \nmedication were required.  The EEG study was \nunrevealing.... \n \n Dr. Courtney’s impression included “1.  Intractable partial complex \nepilepsy with and without secondary generalization, currently stable on \nphenobarbital, generic Trileptal, and generic Lamictal.  2.  Status post MVA \nwith fracture of the left forearm, requiring surgery.  3.  Left foot surgery.”  Dr. \nCourtney recommended continued medication and “2.  Seizure \nprecautions.\"   \n The claimant sustained a “left distal ulnar fracture” on September 6, \n2014 following a fall.  The claimant was treated conservatively.          \n Dr. Courtney’s impression on October 15, 2014 was “1.  Intractable \npartial complex epilepsy with secondary generalization, currently stable.”  \nDr. Courtney’s impression on May 11, 2015 was “1.  Intractable partial \ncomplex epilepsy with and without secondary generalization.  2.  Reports of \nrecurrent seizure described as nocturnal generalized tonic-clonic events as \nwell as intermittent staring episodes/loss of time during wakefulness.”   \n An RN noted on July 8, 2015, “Pt was walking down stairs last night \nand fell.  Unsure if he had seizure or what.  Hx seizure....Pt with small \nsuperficial lac to left side of forehead in scalp.”   \n Dr. Casey M. Smolarz assessed the following on October 23, 2015:  \n“1.  Closed head injury, initial encounter.  2.  Lip swelling.  3.  Forehead \n\nHOWARD – G900538  7\n  \n \n \nabrasion, initial encounter.  4.  Motor vehicle accident.  5.  History of \nseizure.” \n Dr. Zachary B. Lewis reported on October 23, 2015: \nMotor Vehicle Crash w/history of seizure disorder presenting \nto the ED after 4 block city speed MVC w/his vehicle striking \nmultiple poles, one house, and one vehicle.  Pt notes that he \nwoke up around 1:30 AM, took his phenobarbital, and went to \nthe strip club.  Pt denies drug or EtOH use tonight.  He left the \nclub because his phenobarbital “kicked in” because it “messes \nwith him sometimes.”  Pt notes remembering losing control \nand hitting the first few objects w/airbags being deployed....Pt \nunsure if he was knocked out.  Ambulatory on the scene.... \nPt was examined after traumatic event w/possible \ninjury....Patient wishes to leave against medical advice.   \n \n Dr. Lewis diagnosed “1.  Motor vehicle accident.  2.  Lip swelling.  3.  \nForehead abrasion, initial encounter.  4.  History of seizure.” \n Dr. Neil K. Masangkay noted on September 21, 2016, “Mr. Howard is \na patient with a history of epilepsy for several years.  He is on 3 AEDs \nincluding PHB.  He was taking 120mg/day but reduced this to 60mg per \nday.  He had been having good seizure control until earlier this week and \nhas had at least two seizures since then leading to a fracture and a \nhematoma affecting his left shoulder and arm.  On examination, his left arm \nhad some scarring and limited range of motion because of the injuries \nnoted above.  The rest of his examination was unremarkable.”         \n Dr. Shahryar Ahmadi performed a “left shoulder hemiarthroplasty” on \nSeptember 21, 2016.  The pre- and post-operative diagnosis was “Left \n\nHOWARD – G900538  8\n  \n \n \nproximal humerus fracture dislocation.”  The claimant was provided follow-\nup treatment after surgery.   \n Dr. Robin Perry noted on January 8, 2018, “Patient is here for his \nMedicare physical.  He does see neurology at UAMS every 6 months.  He \nis on 3 medications for his seizure disorder.  Seizures have been controlled.  \nHe was seeing ortho for shoulder injury and did have surgery.  He has been \nreleased by ortho.  He is not seeing any other physicians.”  Dr. Perry’s \nassessment included “2.  Epilepsy, unspecified, not intractable, without \nstatus epilepticus.”   \n Dr. Humaira M. Khan provided an assessment and plan on March \n12, 2018:  “35 yo M w/seizures first dx in 2005 after a seizure caused a \nMVA.  He was last seen in Nov 2016 and has not had seizures since.  Prior \nMRI brain and EEG normal.  He is on stable doses of Phenobarb 120 mg \nqhs, Lamictal 200 mg and Trileptal 1200 mg bid.  No side effects reported.  \nNo doses missed....Seizure precautions discussed.  RTC 9 months.”     \n Dr. Ethan Schock evaluated the claimant on March 29, 2018:  \n“Howard is here today for consideration of bilateral knee pain, left greater \nthan right.  He has a long history of seizure disorder and has had multiple \nmotor vehicle accidents over the years.  He has had no fractures about the \nknees but has had these injured with dashboard type injury several \ntimes....Examination today shows bilateral knee effusions.”   \n\nHOWARD – G900538  9\n  \n \n \n Dr. Schock reported on April 19, 2018, “Left knee MRI is reviewed \ntoday and this confirms a large intra-articular loose body likely from a \ntrochlear donor site....I think a knee arthroscopy with anticipated loose body \nremoval and possible microfracture could be helpful for him.”   \n Dr. Schock performed surgery on May 8, 2018:  “Left knee \narthroscopy with multicompartment chondroplasty and removal of multiple \nintra-articular loose bodies measuring greater than 5 mm.”  The post-\noperative diagnosis was “Degenerative arthritis with intra-articular loose \nbodies.”   \nThe claimant testified that he became employed with the \nrespondents, City of Faith Prison Ministries, in approximately September \n2018.  The claimant testified on direct examination: \nQ.  When you were employed by City of Faith, did you go \nthrough the application process? \nA.  Yes, sir.   \nQ.  You advised them of all your injuries? \nA.  Yes.   \nQ.  Did you advise them of all, any kind of work status that \nyou had? \nA.  I had to. \nQ.  They knew about social security at that time? \nA.  Yes.   \nQ.  And they approved you to do the work that you described \nearlier? \nA.  Yes. \nQ.  Working in the building and also driving the vehicle to and \nfrom the hospital with the food trays.   \nA.  Yes.... \nQ.  At the time in 2018, how long had it been since your last \nseizure? \n\nHOWARD – G900538  10\n  \n \n \nA.  2018.  What I came to learn about seizures through the \nyears, there’s several different types of seizures, you know.  \nYou can have a seizure where you fall out, when you shake \non the ground, or you can have a staring seizure, just me \nsitting here looking at you.  So I really couldn’t tell you how \nmany seizures I’ve had since then as far as like where I had to \ngo into the hospital or somebody around me noticing, I hadn’t \nhad a seizure.   \n \n The parties stipulated that the claimant “would provide services for \nthe respondent, and the services included operation of a vehicle.”   \nThe claimant testified on direct examination: \n  Q.  What was the primary purpose of City of Faith? \nA.  Basically security, checking people in and out in the \ncomputers, sometimes searching them, making sure they \ndidn’t have certain items, picking up their meals from Baptist \nHospital, taking the trays back to Baptist Hospital, sometimes \nwalking around just checking the facility, making sure \neverything is going like it’s supposed to.   \nQ.  And City of Faith has a number of residents that stay there \nat the facility, right? \nA.  Yes, men and women....   \nQ.  I think you said you had to go and pick up the meal trays \nand bring them back? \nA.  Yes, from the Baptist Hospital.   \nQ.  So explain to me what that would entail.  What would you \ndo? \nA.  Well, sometimes it would be one or two of the residents \nwith me in the van, and we would go, go to Baptist, we would \npick up the trays, load up the trays, and we would go directly \nback to City of Faith, unload the trays.  We would serve the \ntrays, make sure everybody ate, clean up everything, put the \ntrays back in the van, and I would take them back and unload \nthem, come back, clock out, and that’s it.   \n \n The parties stipulated, “The employer/employee/carrier relationship \nexisted on December 2, 2018, when the claimant was operating a vehicle \n\nHOWARD – G900538  11\n  \n \n \nowned by the respondent, City of Faith, and was involved in a motor vehicle \naccident, where he sustained a physical injury.” \n The claimant testified on direct examination: \nQ.  On December 2, 2018, which is the day you had your \naccident in this case, what occurred on that day? \nA.  Well, I came in and I got the trays, brought them back, \neverybody ate, everything was fine.  This particular night \nnobody rode back with me to drop the trays back off.   \nQ.  At Baptist?  Is that where you’re dropping them back off? \nA.  At Baptist.  So when I left the City of Faith to drop the trays \noff, nobody was with me.  It was probably like a stop sign, \nprobably not even a minute away from City of Faith.  It’s like \nby the Penick Boys Club.  It’s Penick Boys Club.  But if you’re \nfamiliar with that area, it’s like a short distance.  It’s a stop \nsign right there.  As I was coming there, a car came around, \nhit me.  I lost control.  It was like, kind of like a sidewalk.  So I \nhit really hard there, and after that it was just straight on into \nthe building, which the car caught fire.  I wasn’t able to get out \nof the car, and I had to get out of the van by the sliding door \non the side.  That was the way I was able to get out.  From \nthere, if I’m not mistaken, I called the police, and then I went \nto my supervisor, basically Mr. Seales, and he let me know \nbasically what I needed to do.  At that time I was in shock.  I \nreally didn’t want to go to the emergency room, but he made \nsure that I did....Mr. Seales, he told me he wanted me to go to \nthe emergency room, and that’s when he let me know I could \nuse the workers’ comp.... \n   \n According to the record, an RN entered an ED Triage Note at 11:55 \np.m. on December 2, 2018:  “Patient states he was involved in an MVC \nwhere his car was struck causing him to run into a building.  Patient c/o left \narm pain and right knee pain.”   \n The claimant treated at Baptist Health on December 3, 2018: \n\nHOWARD – G900538  12\n  \n \n \n35 yo AAM presents to the ED with c/o L elbow pain and \nswelling that onset tonight due to a MVC.  Pt states he was a \nrestrained driver who was hit by another vehicle on the L front \nside of his vehicle and had positive airbag deployment.  Pt \nalso reports having upper lip pain due to the airbags.  Pt \ndenies having any neck pain.  Pt states he had a previous \ninjury to his L arm before from another accident and he has \nhad several procedures performed on his L arm, but he has \nnoticed that he has some new swelling since the incident.  Pt \nstates his PCP is Dr. Robin Perry and his orthopedist is Dr. \nMoore.... \nMouth:  Pt has swelling to his upper lip.... \nLeft elbow:  He exhibits swelling (to medial aspect) and \ndeformity (chronic).... \n \n An x-ray of the claimant’s left elbow showed “Chronic deformity, \nSTS, nothing acute.”  An emergency physician diagnosed “Strain of left \nelbow, initial encounter....I see nothing acute on his x-ray.  He did request a \nsling.  We will treat with Toradol and encouraged him to follow-up with his \northopedist.”    \n An RN reported on December 3, 2018, “Called patient, who states \nthat he was having ‘warning symptoms’ last night, that may lead to a \nseizure.  Reminded patient that he has an appointment for 12/12/18.”  An \nRN further noted on December 3, 2018, “Mrs. Tonya Kelley [patient’s] \nmother called to requesting (sic) an urgent appointment and a call back \nfrom the nurse.  Mrs. Kelley called to schedule patient for a follow up \nappointment to see Dr. Shihabuddin stating patient was seen in the ER last \nnight after having a really bad seizure.”     \n Dr. Perry examined the claimant on December 4, 2018: \n\nHOWARD – G900538  13\n  \n \n \nPatient is here for follow up after MVA.  He was on the \nrestrained driver of a van that was hit and he lost control and \nhit a storage building.  Building and van both burned.  Airbag \ndeployed when he hit the curb.  He injured his left knee.  Also \ninjured his chronically deformed left elbow.  He had to wear \nknee braces.  He did have drivers license.  Has been seizure \nfree for years.  He is seeing neurologist at UAMS and just \ncompleted arthroscopic left [knee] surgery with Ortho \nspecialist.   \n \n Dr. Perry assessed “1.  Bursitis of left elbow, unspecified bursa.  2.  \nBrachial plexus injury, left sequela.”  The record indicates that Dr. Perry \ntook the claimant off work beginning December 4, 2018.  The parties \nstipulated that the claim “was initially accepted as compensable.” \n An x-ray of the claimant’s left upper extremity was taken on \nDecember 11, 2018 with the following findings and impression: \nMalunited distal radius and ulna fractures are seen.  A \nnonunited ulnar styloid fracture is noted.  Limited view of the \nelbow demonstrates significant heterotopic ossification.  \nElbow joint is grossly aligned.  There is mild osteopenia.  No \nsignificant soft tissue abnormality.   \n \n Dr. Ahmadi took the claimant off work on December 11, 2018.  \n Dr. Michael M. Hussey provided an Independent Medical Exam on \nFebruary 20, 2019: \nEldridge Howard is a 36-year-old African-American right-hand \ndominant male who presents to my clinic today for an \nindependent medical examination regarding an injury that the \nclaimant states occurred on 12/2/2018.  Mr. Howard states \nthat he was driving the company van of his employer City of \nFaith performing a food delivery when he states another \nvehicle struck his vehicle and caused him to hit a building.  \nMr. Howard states he had been working for City of Faith as a \n\nHOWARD – G900538  14\n  \n \n \nsecurity personnel for about 1-2 months prior to his motor \nvehicle collision.  According to the fire department report \npresented to me, the van caught on fire.  The fire department \nreport also documents that he questioned Mr. Howard if he \nwas injured, and Mr. Howard told him he was “fine” and that \nthe MEMS unit had already checked him out and released \nhim.  Patient denies seeing the other vehicle that struck his \nvan.  He states that he did not have any significant immediate \nonset of pain after the collision but later noticed increased \npain in the shoulder and elbow region.  He states he does not \nremember having a seizure during the accident.  He states he \nwas taking seizure medication daily before and after his motor \nvehicle collision.  He states his last seizure occurred around \n2015.... \nAssessment:  36-year-old right-hand dominant male with \nseizure disorder, status post occupation related injury on \n12/2/2018 due to motor vehicle collision with post-injury \ncomplaint of left shoulder/elbow pain that appears secondary \nto shoulder and elbow joint sprain.   \nIn regards to the left shoulder, it is my opinion that the majority \nof Mr. Howard’s pain and dysfunction is related to his pre-\nexisting traumatic injury he sustained to the shoulder in 2016 \nthat was related to a seizure.  At that time Mr. Howard had a \nsevere comminuted proximal humerus fracture that required a \npartial shoulder replacement by Dr. Ahmadi, which I believe \nwas a reasonable treatment for his injury....There is no \ndocumentation in the medical record that he ever achieved \nsignificant improvement in his shoulder function or pain level.   \nAfter his occupation related injury on 12/2/2018, the Fire \nDepartment report states that Mr. Howard did not complain of \nany pain in his left shoulder or elbow.  It is my opinion, if Mr. \nHoward had that severe of new injury to his left arm that he \nwould have complained of some arm pain at that time.... \nSpecific questions to address presented by William C. \nFrye: \nQuestion 1:  I did find objective findings during my \nexamination of the claimant’s left shoulder which showed \ndiffuse mild muscle atrophy compared to the contralateral \nuninjured right shoulder.  There was no further objective \nfindings found, as I was unable to obtain a reliable exam due \nto his extreme pain behavior exhibited during the left shoulder \nexam.  In my opinion, the findings of diffuse muscle atrophy in \n\nHOWARD – G900538  15\n  \n \n \nthe left shoulder are not related to the claimant’s December 2, \n2018 motor vehicle accident, and are more likely related to his \npre-existing left shoulder injury and surgery.   \nQuestion 2:  In my opinion, there has been no significant \nchange in the claimant’s left shoulder x-rays before and after \nthe 12/2/2018 accident.  In my opinion, and in the \ndocumented opinion of Dr. Ahmadi, the x-rays show a stable \nhemiarthroplasty prosthesis with no sign of failure.   \nQuestion 3:  Not applicable. \nQuestion 4:  Based on the objective evidence available to me, \nit is my opinion that the claimant does not need a reverse total \nshoulder replacement.   \nQuestion 5:  In regards to future treatment for Mr. Howard’s \nleft shoulder occupation related injury, I would recommend \nconservative treatment.  The objective clinical, physical exam, \nand imaging evidence available to me at most, points to a \nsimple strain of the left shoulder.  In my opinion, I do not see \nany significant objective derangement sustained on the \n12/2/2018 accident to Mr. Howard’s left shoulder that would \nwarrant further surgical intervention.   \nQuestion 6:  During my examination of Mr. Howard’s left \nelbow, I did find objective findings.  These findings included \nlimited passive and active range of motion of the elbow joint \nas well as a soft tissue contracture of the skin and connective \ntissue in the area of the previously placed skin graft.  There \nwas noted to be significant soft tissue and skin deformity in \nthe area of his prior injury that occurred in 2005.  There were \nold well-healed skin incisions from previous surgery and \nexternal fixator placement, with no new soft tissue wounds \npresent.  There are multiple reports in his previous past \nmedical history from multiple orthopedic surgeons prior to his \n12/2/2018 accident, that document significant derangement of \nthe left elbow with loss of motion and function.  Therefore, it is \nmy opinion that all of the objective findings that were noted on \nhis left elbow were pre-existing prior to his 12/2/2018 motor \nvehicle accident.   \nQuestion 7:  Based on imaging available to me, it is my \nopinion that the claimant’s left elbow x-rays show no new \nsignificant changes from the time period before the 12/2/2018 \naccident, to after the accident.  The x-rays and CT scan \nperformed after the 12/2/2018 accident, are in my opinion of \nsimilar appearance to the x-rays that were taken prior to his \n\nHOWARD – G900538  16\n  \n \n \n12/2/2018 accident.  It is my opinion that all of the objective \nfindings that were noted on his left elbow were pre-existing \nprior to his 12/2/2018 motor vehicle accident.   \nQuestion 8:  In my opinion, I do not believe the claimant \nrequires a debridement of the left elbow based on the injury \nhe sustained on 12/2/2018.  It is obvious in his prior medical \nhistory that other upper extremity orthopedic surgeons had \nrecommended either a debridement procedure or a total \nelbow arthroplasty of his left elbow many years [preceding] \nthe 12/2/2018 accident.   \nQuestion 9:  In regards to future treatment for Mr. Howard’s \nleft elbow occupation related injury, I would recommend \nconservative treatment.  The objective clinical, physical exam, \nand imaging evidence available to me at most, points to a \nsimple strain of the left elbow.  In my opinion, I do not see any \nsignificant objective derangement sustained on the 12/2/2018 \naccident to Mr. Howard’s left elbow that would warrant further \nsurgical intervention.  The conservative treatment I would \nrecommend if Mr. Howard were my patient would include rest, \nice, topical analgesia creams, anti-inflammatory medication, \nand physical therapy to decrease pain and inflammation \nrelated to the joint sprains.  The duration of treatment and \nrecovery period for an injury of this nature in my experience \nwith a joint sprain is typically 2-3 months with resumption of \nfull duties at the end of 3 months.   \nQuestion 10:  The opinions that I have presented are based \non a reasonable degree of medical certainty.   \n  \nThe parties stipulated that the respondents paid temporary total \ndisability benefits through May 19, 2019.  The claimant testified that he \nnever returned to work for the respondent-employer.      \nDr. Ahmadi performed surgery on August 16, 2019:  “Revision of the \nleft failed shoulder arthroplasty to reverse shoulder arthroplasty[.]”  The pre- \nand post-operative diagnosis was “Failed left shoulder arthroplasty.”  Dr. \nAhmadi performed left elbow surgery on January 23, 2020:  “Radical \n\nHOWARD – G900538  17\n  \n \n \nresection of the capsule, soft tissue, and heterotopic bone of the left elbow \nwith contracture release.”  The pre- and post-operative diagnosis was “Left \nelbow stiffness.”   \nDr. William Bowen performed a right knee arthroscopy on May 13, \n2020.  The post-operative diagnosis was \"1.  Pigmented villonodular \nsynovitis.  2.  Grade 3 chondromalacia, patellofemoral joint and trochlea.”  \nDr. Bowen performed a left knee arthroscopy on October 2, 2020.  The \npost-operative diagnosis was “1.  Pigmented villonodular synovitis, left \nknee.  2.  Extensive grade 3 chondromalacia medial femoral condyle and \npatellofemoral joint.\"   \n A pre-hearing order was filed on June 7, 2022.  The claimant \ncontended, “Mr. Howard contends that he sustained injuries to his shoulder, \nelbow and knees as a result of the automobile accident which occurred on \nDecember 2, 2018 and further that though he had sustained injuries to his \nshoulder, elbow and knees previously, the injuries sustained in the present \naccident and surgeries and other medical issues were not exacerbated by \nthe previous injuries as contended by the Respondent, as a result the \nRespondent should pay for the Claimant (sic) entire healing period in \nTemporary Disability payments and pay appropriately for any surgeries, \nmedical bills and the appropriate sum for any disability that exist (sic) now \ndue to that accident.” \n\nHOWARD – G900538  18\n  \n \n \n The parties stipulated that the claim “has now been controverted in \nits entirety.”  The respondents contended, “The Claimant in this matter has \nbeen on Social Security for years due to seizures, and shoulder and elbow \nproblems.  He did not divulge the seizure problem to his insured causing \nthem to put him behind the wheel of a van when he should not have been \ndriving.  HE (sic) was involved in a motor vehicle accident in 2005 and \nsustained an injury to his elbow.  He had a subluxation and underwent \nsurgery with Dr. Rhoades (sic).  He was then seen by Dr. David Collins for \nhis left shoulder.  It was noted that he had a non-union of the elbow and \nshoulder problems.  He also had problems with his left knee popping and \nwas seen by Dr. Ethan Schock.  In 2008 he underwent shoulder surgery.  \nHe was also seen for severe elbow contracture and severe degenerative \nchanges.  He had another motor vehicle accident in 2013 due to a seizure.  \nIn 2014, he again injured his left arm in a fall.  In 2015, he had another \nseizure and fell down 12 stairs and his history was seizures 5 times a week.  \nHe then had a motor vehicle accident taking out numerous poles due to \nanother seizure.  In 2016, he had another seizure and broke his shoulder.  \nThe Claimant thought he had a seizure in the night.  Dr. Ahmadi did a total \nshoulder on the Claimant on September 21, 2016.  He continued to have \nproblems with the shoulder.  He was then seen on March 29, 2017 with a \nhistory of numerous accidents hitting the dash and was having pain and \n\nHOWARD – G900538  19\n  \n \n \nswelling of the knees.  He was found to have a large loss of cartilage.  He \nunderwent surgery on his knee with Dr. Schock on May 8, 2018.  The \nClaimant was involved in a motor vehicle accidents (sic) in which he drove \nhis van into a building.  His X-ray of the elbow showed the same severe \ndegenerative changes.  The X-ray showed no new fractures or failure of the \ntotal shoulder.  The X-ray of the elbow showed an old injury and nothing \nnew.  The history he gave to OrthoArkansas was that the seizure was part \nof the accident.  The Claimant then saw Dr. Hussey on February 20, 2019.  \nHe noted that the Claimant reported continued shoulder pain after his \nshoulder surgery.  He opined that the problems in the shoulder was (sic) \nrelated to the 2016 injury since he did not have significant improvement \nfrom the surgery.  The PT noted (sic) indicated that the Claimant had dismal \nfunction in the shoulder and could not raise his arm above his shoulder.  He \nalso said that there was no failure of the total shoulder so no reason to do \nanother surgery.  He also notes extreme pain behavior.  On the elbow, he \nnoted that the Claimant had already been told he needed the debridement \nbefore the December accident.  He also said there was no new objective \nfinding due to the accident.  Dr. Schock in May of 2019 felt the Claimant did \nnot need surgery and had a long history of recurrent effusions of both \nknees.  He did undergo a revision of the shoulder and surgery of the elbow.  \nIn October of 2019, he was six weeks out from the surgery.  The surgery for \n\nHOWARD – G900538  20\n  \n \n \nthe shoulder was performed on August 16 and the elbow surgery on \nJanuary 23, 2020.  He was then seen by Dr. Bowen on April 14, 2020 with a \nhistory of gradual onset of knee problems.  He underwent right knee \nsurgery and the pathology report said he had a diffuse-type tenosynovial \ngiant cell tumor.  He underwent surgery for left knee on October 2, 2020.  \nThe Respondents have no further medical treatment.”   \n The respondents contended, “A.  The Respondents contend that the \naccident was caused by the Claimant’s failure to disclose his seizure and \naccident history which resulted in him being allowed to drive the company \nvan that he wrecked due to a seizure.  B.  The Claimant’s shoulder, knee, \nand elbow problems are not related to the accident but to continued \npreexisting conditions.”       \n The parties agreed to litigate the following issues: \n1.  Compensability. \n2.  Temporary total disability. \n3.  Permanent partial disability. \n4.  Medical treatment. \n5. Attorney’s fees.   \n \nA hearing was held on August 16, 2022.  At that time, the parties \nreserved the issue of permanent partial disability.  An administrative law \njudge filed an opinion on September 20, 2022 and found that the claimant \nfailed to prove he sustained a compensable injury.  The claimant appeals to \nthe Full Commission.   \n\nHOWARD – G900538  21\n  \n \n \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012) provides, in pertinent part: \n(A)  “Compensable injury” means: \n(i) An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in the \ncourse of employment and which requires medical \nservices or results in disability or death.  An injury is \n“accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n \nA compensable injury must be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \nThe employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). \nAn administrative law judge found in the present matter, “4.  That \nthere is no alternative but to find that the preponderance of the evidence \nshows that the claimant suffered a non-compensable, idiopathic injury on \nDecember 2, 2018, and consequently the claimant has failed to satisfy the \n\nHOWARD – G900538  22\n  \n \n \nrequired burden of proof that the claim is compensable.”  The Full \nCommission does not affirm this finding.     \nAn idiopathic injury is one whose cause is personal in nature, or \npeculiar to the individual.  Crawford v. Single Source Transp., 87 Ark. App. \n216, 189 S.W.3d 507 (2004), citing Kuhn v. Majestic Hotel, 324 Ark. 21, 918 \nS.W.2d 158 (1996).  Injuries sustained due to an unexplained cause are \ndifferent from injuries where the cause is idiopathic.  ERC Contractor Yard \n& Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998).  Where a \nclaimant suffers an unexplained injury at work, it is generally compensable.  \nLittle Rock Convention & Visitors Bur. v. Pack, 60 Ark. App. 82, 959 S.W.2d \n415 (1997).  Because an idiopathic injury is not related to employment, it is \ngenerally not compensable unless conditions related to the employment \ncontribute to the risk.  Id.  Employment conditions can contribute to the risk \nor aggravate the injury by, for example, placing the employee in a position \nwhich increases the dangerous effect of a fall, such as on a height, near \nmachinery or sharp corners, or in a moving vehicle.  Id.  See also \nDelaplaine Farm Center v. Crafton, 2011 Ark. App. 202, 382 S.W.2d 689. \nIn the present matter, the claimant testified that he has suffered from \nseizures since 2005.  The evidence shows that the claimant was involved in \na motor vehicle accident in 2005, and that the accident was caused by the \nclaimant having a seizure.  As a result of the motor vehicle accident on or \n\nHOWARD – G900538  23\n  \n \n \nabout May 7, 2005, the claimant sustained a traumatic injury to his left \nupper extremity.  The injury required several surgical procedures to the \nclaimant’s left upper extremity.  The claimant testified that he began \nreceiving Social Security disability benefits in about 2007, which benefits \nwere related to his epileptic condition.  Dr. Andersson stated in July 2013 \nthat the claimant suffered from “a debilitating seizure disorder.”  Dr. \nCourtney treated the claimant in April 2014 for a “seizure disorder.”  The \nclaimant was involved in a motor vehicle accident in October 2015, at which \ntime Dr. Lewis noted in part “4.  History of seizure.”  Dr. Perry, Dr. Khan, \nand Dr. Schock all noted in 2018, prior to the claimant’s employment with \nthe respondents, that the claimant was prescribed several anti-convulsant \nmedications and had “a long history” of a seizure disorder. \nAs we have noted, the claimant testified that he became employed \nwith the respondents in approximately September 2018.  The claimant \ntestified that one of his employment duties for the respondents was driving \na vehicle in which he picked up meals and returned them to Baptist \nHospital.  The parties stipulated that the claimant “would provide services \nfor the respondent, and the services included operation of a vehicle.”  The \nparties also stipulated that on December 2, 2018 the claimant “was \noperating a vehicle owned by the respondent, City of Faith, and was \ninvolved in a motor vehicle accident, where he sustained a physical injury.”   \n\nHOWARD – G900538  24\n  \n \n \nThe claimant testified that he was driving the company vehicle to \nBaptist Hospital on December 2, 2018 in order to drop off trays.  The \nclaimant testified, “As I was coming there, a car came around, hit me.  I lost \ncontrol....So I hit really hard there, and after that it was just straight on into \nthe building, which the car caught fire.”  In workers’ compensation cases, \nthe Commission functions as the trier of fact.  Blevins v. Safeway Stores, 25 \nArk. App. 297, 757 S.W.2d 569 (1988).  The determination of the credibility \nand weight to be given a witness’s testimony is within the sole province of \nthe Commission.  Murphy v. Forsgren, Inc., 99 Ark. App. 223, 258 S.W.3d \n794 (2007).  The Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).   \nIn the present matter, the Full Commission finds that the claimant \nwas not a credible witness with regard to the circumstances of the \nDecember 2, 2018 motor vehicle accident.  There is no evidence of record \ncorroborating the claimant’s assertion that the vehicle in which he was \ndriving was struck by another vehicle.  The evidence instead demonstrates \nthat the claimant suffered from a seizure on December 2, 2018, which \ncondition was idiopathic to the claimant.  An RN plainly noted on December \n3, 2018 that the claimant reported having “warning symptoms last night, \n\nHOWARD – G900538  25\n  \n \n \nthat may lead to a seizure.”  An RN also noted on December 3, 2018, “Mrs. \nTonya Kelley [patient’s] mother called to [request] an urgent appointment \nand a call back from the nurse.  Mrs. Kelley called to schedule patient for a \nfollow up appointment to see Dr. Shihabuddin stating patient was seen in \nthe ER last night after having a really bad seizure [emphasis supplied].”   \nThe probative evidence before the Commission does not reflect that \nthe vehicle in which the claimant was driving on December 2, 2018 was \nstruck by another vehicle.  Instead, the evidence demonstrates that the \nclaimant suffered from a seizure on December 2, 2018, which idiopathic \ncondition led to the motor vehicle accident.  The evidence therefore shows \nthat the claimant suffered from an idiopathic injury on December 2, 2018.  \nBecause an idiopathic injury is not related to employment, it is generally not \ncompensable unless conditions related to the employment contribute to the \nrisk.  Little Rock Convention & Visitors Bur., supra.  Employment conditions \ncan contribute to the risk or aggravate the injury by, for example, placing \nthe employee in dangerous position which increases the dangerous effect \nof the injury, such as “in a moving vehicle.”  Id.  See also Crawford, supra.   \nThe parties stipulated that the claimant in the present matter “was \noperating a vehicle owned by the respondent, City of Faith,” at the time of \nthe December 2, 2018 motor vehicle accident.  The evidence demonstrates \nthat the claimant sustained injuries as the result of an idiopathic condition, \n\nHOWARD – G900538  26\n  \n \n \nbut that the employment circumstances contributed to the injury, that is, the \nclaimant was in a moving vehicle, performing employment services, at the \ntime of the idiopathic event.  The claimant’s injuries on December 2, 2018 \nwere therefore compensable.           \nThe respondents argue on appeal that the claimant is barred from \nreceiving benefits in accordance with cited provisions of “Larson’s Workers’ \nCompensation Law.”  Indeed, in accordance with “Larson’s,” an employee \nmay be precluded from benefits under the Workers’ Compensation Act for \nan otherwise compensable injury if it is shown that the employee knowingly \nand willfully made a false representation as to his physical condition; the \nemployer relied upon the false representation, which reliance was a \nsubstantial factor in the employment; and there was a causal connection \nbetween the false representation and the injury.  Johnson v. PAM \nTransport, Inc., 2017 Ark. App. 514, 529 S.W.3d 678, citing Shippers \nTransport of Georgia v. Stepp, 265 Ark. 365, 578 S.W.2d 232 (1979).  \nIn the present matter, the evidence does not demonstrate that the \nclaimant knowingly and willfully made a false representation as to his \nphysical condition.  The claimant testified that, when he applied for \nemployment with the respondents, he advised them of his pre-existing \ninjuries, and that he informed the respondents that he was receiving Social \nSecurity disability benefits.  The Full Commission recognizes the credible \n\nHOWARD – G900538  27\n  \n \n \ntestimony of Philip Seales, a security officer with the respondents.  Philip \nSeales testified that he was unaware of the claimant’s prior history of \nseizures.  Mr. Seales testified that the claimant would not have been \nallowed to drive a vehicle for the respondents if they had known of the \nclaimant’s pre-existing condition. \nHowever, Philip Seales agreed on cross-examination that he was not \nthe individual who hired the claimant.  Philip Seales testified that the \nclaimant was interviewed and hired by a Mr. Pettus.  Philip Seales testified, \n“Mr. Pettus was very thorough.”  Mr. Pettus was deceased as of the time of \nthe August 16, 2022 hearing and of course did not testify.  There is simply \nno probative evidence demonstrating that the claimant knowingly and \nwillingly made a false representation to the respondents at the time of his \nhiring.  The Full Commission notes that there are no documents in the \nrecord such as an employment application or pre-employment physical \nexamination.  The claimant testified with regard to Philip Seales, “he let me \nknow I could use the workers’ comp” following the accidental injury.  We \ntherefore find that the respondents did not prove the claim should be barred \nin accordance with Johnson and Shippers, supra.  Because the evidence \ndoes not demonstrate that the claimant knowingly and willfully made a false \nrepresentation at the time of his hiring, we need not adjudicate whether the \n\nHOWARD – G900538  28\n  \n \n \nemployer relied upon a “false representation” or whether there was a causal \nconnection between the alleged false representation and the injury.   \nThe Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a compensable injury.  \nThe claimant proved that he sustained an accidental injury causing physical \nharm to the body.  The claimant proved that the injury arose out of and in \nthe course of employment, required medical services, and resulted in \ndisability.  The injury was caused by a specific incident and was identifiable \nby time and place of occurrence on December 2, 2018.  The claimant also \nestablished a compensable injury by medical evidence supported by \nobjective findings.  Namely, the objective findings established a \ncompensable injury to the claimant’s upper lip (swelling) and a \ncompensable injury to the claimant’s left elbow (swelling).  The claimant \ndoes not contend that he is entitled to benefits related to the swelling in his \nupper lip.  The evidence otherwise demonstrates that the claimant \nsustained a compensable “strain of left elbow” as assessed on December 3, \n2018.  The evidence does not demonstrate that the claimant proved he \nsustained a compensable injury to any other anatomic region or body part \nas a result of the specific incident occurring December 2, 2018.   \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved by a preponderance of the evidence that he \n\nHOWARD – G900538  29\n  \n \n \nsustained a compensable injury on December 2, 2018.  The evidence \ndemonstrates that the claimant sustained an idiopathic seizure, but that \nemployment conditions aggravated the injury.  The respondents did not \nprove that the claimant made a false representation as to his physical \ncondition at the time of the claimant’s hiring.  The claimant proved that the \nmedical treatment of record was reasonably necessary until the time of Dr. \nHussey’s Independent Medical Exam on February 20, 2019.  The claimant \ndid not prove that medical treatment beyond that time was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nNor did the claimant prove that he continued within a healing period for his \ncompensable left elbow strain at any time beyond February 20, 2019.  See \nKetcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995).  \nFor prevailing in part on appeal to the Full Commission, the claimant’s \nattorney is entitled to a fee of five hundred dollars ($500), pursuant to Ark. \nCode Ann. §11-9-715(b)(2)(Repl. 2012). \nIT IS SO ORDERED.   \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":48148,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G900538 ELDRIDGE HOWARD, III, EMPLOYEE CLAIMANT CITY OF FAITH PRISON MINISTRIES, EMPLOYER RESPONDENT TECHNOLOGY INSURANCE CO., CARRIER AMTRUST NORTH AMERICA, TPA RESPONDENT OPINION FILED MAY 26, 2023","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":["fracture","wrist","shoulder","knee","back","neck","strain","sprain"],"fetchedAt":"2026-05-19T22:29:46.427Z"},{"id":"full_commission-G503430-2023-05-26","awccNumber":"G503430","decisionDate":"2023-05-26","decisionYear":2023,"opinionType":"full_commission","claimantName":"Byron Watkins","employerName":"L.A. Darling Company, LLC","title":"WATKINS VS. L.A. DARLING COMPANY, LLC. AWCC# G503430 G902279 G902281 & G903969 MAY 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Watkins_Byron_G503430-G902279-G902281-G903969_20230526.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Watkins_Byron_G503430-G902279-G902281-G903969_20230526.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NOS.  G503430 G902279 G902281 & G903969  \n \nBYRON D. WATKINS, \nEMPLOYEE \n \nCLAIMANT \nL.A. DARLING COMPANY, LLC.,  \nEMPLOYER \n \nRESPONDENT \nTRAVELERS INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2 \n  \n      \nOPINION FILED MAY 26, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents No. 1 represented by the HONORABLE R. SCOTT \nZUERKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \n ORDER \n The claimant moves to introduce “PERMANENT DISABILITY \nSOCIAL SECURITY ADMINISTRATION.”  The respondents have filed an \nobjection.  The Full Commission denies the motion. \n An administrative law judge filed an opinion on June 25, 2021.  The \nadministrative law judge found, among other things, that the claimant did \nnot prove he was entitled to additional benefits.  The Full Commission \naffirmed and adopted the administrative law judge’s decision in an opinion \nfiled March 9, 2022.  The claimant appealed to the Arkansas Court of \n\nWATKINS - G503430 G902279 G902281 & G903969  2\n  \n \n \nAppeals.  In a Formal Order dated February 22, 2023, the Court of Appeals \ngranted the respondents’ motion to dismiss the claimant’s appeal.  Watkins \nv. L.A. Darling Co., CV-22-451.  In a Formal Order entered March 29, 2023, \nthe Court of Appeals denied a motion by the claimant “to not dismiss case.”  \nWatkins v. L.A. Darling Co., CV-22-451.  \n There are currently no additional issues for the Full Commission to \nadjudicate in this matter.  The claimant seeks to introduce into the record \ncorrespondence from the Social Security Administration dated April 28, \n2023.  However, the claimant has not demonstrated that this new evidence \nis relevant with regard to any past, present, or future issue before the \nWorkers’ Compensation Commission.  See Long v. Wal-Mart Stores, Inc., \n98 Ark. App. 70, 250 S.W.3d 263.  We find that said new evidence is \ninadmissible.     \n The Full Commission therefore denies the claimant’s motion to \nintroduce the April 28, 2023 correspondence from the Social Security \nAdministration. \n IT IS SO ORDERED.   \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2595,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. G503430 G902279 G902281 & G903969 BYRON D. WATKINS, EMPLOYEE CLAIMANT L.A. DARLING COMPANY, LLC., EMPLOYER RESPONDENT TRAVELERS INSURANCE COMPANY, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:2","granted:2","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.438Z"},{"id":"alj-H207031-2023-05-26","awccNumber":"H207031","decisionDate":"2023-05-26","decisionYear":2023,"opinionType":"alj","claimantName":"Jodi Munhall","employerName":"Arkansas Cardiology Pa","title":"MUNHALL VS. ARKANSAS CARDIOLOGY PA AWCC# H207031 MAY 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MUNHALL_JODI_H207031_20230526.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MUNHALL_JODI_H207031_20230526.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207031 \n \nJODI MUNHALL, EMPLOYEE  CLAIMANT \n \nARKANSAS CARDIOLOGY PA, \nEMPLOYER                                                                                                RESPONDENT  \n \nFARMINGTON CASUALTY COMPANY, \nINSURANCE CARRIER/TPA                                   RESPONDENT  \n \n \nOPINION FILED MAY 26, 2023 \n \nHearing before Administrative Law Judge Steven Porch on May 23, 2023 in Little Rock, \nPulaski County, Arkansas. \n \nClaimant, pro se. \n \nThe Respondents were represented by Mr. Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on May 23, 2023, in Little Rock, \nArkansas.  Claimant, who is pro se, did not appear for the hearing.  Respondents were \nrepresented  at  the  hearing  by  Mr.  Guy  Alton  Wade,  Attorney  at  Law,  of  Little  Rock, \nArkansas. In addition to Respondents’ argument, the record consists of the Commission’s \nfile–which has been incorporated herein in its entirety by reference. \n The evidence reflects that Claimant’s injury occurred on October 6, 2021, where \nshe  purportedly  injured  her  left  knee.   This  incident  allegedly  occurred  when  Claimant \nwas assisting  a  patient  off  a  scanning  table  and  patient  grabbed  Claimant’s  left  knee \ncausing  said  knee  to  hyper  extend  during  the  course  and  scope  of  her  employment. \nClaimant called Respondents’ counsel, Guy Alton Wade, stating that she does not want \n\nMUNHALL – H207031 \n \n \n2 \nto pursue this claim and followed it up with a letter dated February 14, 2023, making the \nsame  statement.  Nevertheless,  a  hearing  was  held  on May  23,  2023,  in  Little  Rock, \nArkansas on the Motion to Dismiss. And as previously stated, the claimant did not appear \nfor the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute her claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n\nMUNHALL – H207031 \n \n \n3 \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven  reasonable  notice,  at  the  addresses  provided  by  each  party,  for  the Motion  to \nDismiss hearing under Rule 13. I further find that Claimant has abridged this rule. Thus,  I \nfind Respondent’s Motion to Dismiss should be granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4821,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207031 JODI MUNHALL, EMPLOYEE CLAIMANT ARKANSAS CARDIOLOGY PA, EMPLOYER RESPONDENT FARMINGTON CASUALTY COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 26, 2023 Hearing before Administrative Law Judge Steven Porch on May 23, 2023 in Little Rock,...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:4"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:08:03.920Z"},{"id":"alj-H101762-2023-05-25","awccNumber":"H101762","decisionDate":"2023-05-25","decisionYear":2023,"opinionType":"alj","claimantName":"Richard Horn","employerName":"Harris Co. Of Fort Smith","title":"HORN VS. HARRIS CO. OF FORT SMITH AWCC# H101762 MAY 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HORN_RICHARD_H101762_20230525.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HORN_RICHARD_H101762_20230525.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H101762 \n \nRICHARD HORN, Employee CLAIMANT \n \nHARRIS CO. OF FORT SMITH, Employer RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier RESPONDENT \n \n \n \n OPINION FILED MAY 25, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  March  2,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on  January  9,  2023,  and  a  Pre-hearing \nOrder  was  filed  on  January  10,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on February \n3, 2021. \n 3. The claimant sustained a compensable injury to his  left hand on or  about February 3, \n2021. \n\n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $411.00 for temporary total disability benefits. \n 5. The claimant is entitled to temporary total disability benefits currently and through the \nundisputed  surgical  portion  of  the  surgery  recommended  by  Dr.  Kelly  and  its  reasonable  and \nnecessary aftercare or the claimant’s return to employment. \n By agreement of the parties the issues to litigate are limited to the following: \n1. Whether Claimant is entitled to additional medical treatment for his compensable left-\nhand injury in the form of surgery as recommended by Dr. Kelly. \n Claimant’s contentions are: \n“Claimant  contends  that  the  Respondents  have  failed  and  refused \nto  authorize surgery  recommended  by  Dr.  Kelly  and  that  the \nCommission   should   order   the   Respondents   to   authorize   said \nsurgery  since  it  is  reasonably  necessary  treatment  in  regard  to  the \nClaimant’s admittedly compensable injury.” \n \n Respondents’ contentions are: \n \n“Respondents   have   approved   the   surgical   recommendation   as \nmodified for related condition to the work injury. Claimant has not \nundergone   the   approved   surgery   as   modified.   The   unrelated \ntreatment  for  other  conditions  is  not  reasonable,  necessary  or \nrelated to the work injury.” \n \n The claimant in this matter is a 41-year-old male who sustained a compensable injury to \nhis left hand on February 3, 2021. The claimant testified on direct examination that his hand was \ncrushed  between  two  pieces  of  metal  pipe  and  that  he  began  to  see  Dr.  Robert  Taylor.  The \nclaimant underwent three surgeries at the hands of Dr. Taylor. His first surgical intervention was \nFebruary  4,  2021,  the  day  after  the  claimant’s  crush  injury.  The  operative  report  found  at \nClaimant’s Exhibit 1, page 1, states in part as follows. \n\n \n-3- \nPREOPERATIVE   DIAGNOSIS:   Left   middle   finger   middle \nphalanx fracture, displaced, comminuted and open. \n \nPOSTOPERATIVE   DIAGNOSIS:   Left   middle   finger   middle \nphalanx fracture, displaced, comminuted and open. \n \nPROCEDURE: Open reduction and K-wire fixation of left middle \nfinger middle phalanx fracture. \n \n The  claimant  gave  direct  examination  testimony  about  the  results  of  his  first  surgery  as \nfollows. \n  Q So how did that work out? \n \n  A Man, after he - - well, after he took the wire out and my \n  finger - - he had my finger done up.  It was just a stiff finger, you \n  know.  And he had it together, but it was a stiff finger.  It hurt.  It \n  was numb all the time, you know. \n \n  Q So your finger was just stuck straight out? \n \n  A Yes. \n \n  Q And you couldn’t bend it or anything? \n \n  A Correct.  It was stuck straight out like this. (indicating). \n \n \n On April 1, 2021, the claimant underwent a second surgical intervention at the hands of \nDr.  Taylor.  Following  is  a  portion  of  that  operative  report  found  at  Claimant’s  Exhibit  1,  page \n10.  \nPREOPERTIVE  DIAGNOSIS:  Stiff,  painful  left  middle  finger, \nstatus post previous crush injury. \n \nPOSTOPERATIVE DIAGNOSIS: Same. \n \nOPERATION: Ray amputation of left middle ray. \n \n At  the  hearing  in  this  matter  the  claimant  gave  direct  examination  testimony  about  his \nsecond surgery in which his middle finger was amputated as follows. \n\n \n-4- \n  Q Was it your hope that you would get more function out \n  of your hand if you went ahead and followed the doctor’s advice? \n \n  A Yes, sir. \n \n  Q And as a result of that surgery, that entire finger was  \n  amputated? \n \n  A Yes, sir. \n \n  Q Now, if a person looks at their hand, they actually have \n  knuckles in their fingers. \n \n  A Correct. \n \n  Q Now, on that third finger, that long finger that you got \n  amputated, was it actually amputated at the knuckle or past the \n  knuckle? \n \n  A In my hand? \n \n  Q Now, when you say in your hand, if you bend your hand  \n  and you’ve got knuckles across the top of your hand. \n \n  A Yes. \n \n  Q How far back behind where those knuckles are would you \n  say that amputation was? \n \n  A Over halfway. \n \n  Q Over halfway up the back of your hand? \n \n  A Yes, sir.  Right there (indicating).  Do you want to see? \n \n  Q No, I don’t want to see it.  You can tell me. \n \n  A Okay. \n \n  Q So if you put your finger where that amputation occurred \n  on the back of your hand. \n \n  A Yes. \n \n  Q And you turn it over and look in the front of your hand, \n\n \n-5- \n  where in the front of your hand would that be?  If you drilled a \n  hole through there, where would the hole come out? \n \n  A (Indicating), right there. \n \n  Q Now, when you say right there, you are pointing to the \n  palm of your hand? \n \n  A Yes, (indicating). \n \n  Q Okay.  So how did that work out for you? \n \n  A It didn’t.  It was worse for me.  I got numbness and it - - \n  I have pressure on my hand.  It gets numb all the time.  And my \n  hand cramps up all the time.  I can’t hold nothing.  I can’t grip \n  nothing. \n \n  Q Did you have any problems like that before you got hurt? \n \n  A No, sir.  No, sir. \n \n On  September  28,  2021,  the  claimant  underwent  a  third  surgery  at  the  hands  of  Dr. \nTaylor. Following is a portion of the report of that operation found at Claimant’s Exhibit 1, page \n20. \nPREOPEATIVE    DIAGNOSIS:    Status    post    left    third    ray \namputation and hand pain. \n \nPOSTOPERATIVE  DIAGNOSIS:  Same  plus  relaxation  of  deep \ntransverse metacarpal ligament repair. \n \nOPERATION:   Left   third   ray   transverse   metacarpal   ligament \nrepair. \n \n The claimant was questioned on direct examination about this third surgical intervention \nas follows. \n  Q What did they do on that surgery? \n \n  A His surgery didn’t work, so he opted to open me back up \n  again. \n \n\n \n-6- \n  Q Opened your hand back up? \n \n  A Yes. \n \n  Q And what did he do? \n \n  A He put a permanent suture in there to hold my hand \n  together. \n \n  Q Well, when you were showing your hand a few minutes \n  ago, it didn’t look like it was together. \n \n  A No, sir. \n \n  Q So what happened after the third surgery? \n \n  A It didn’t work and he released me and said, “That is \n  all I could no.”  I had to find somebody else. \n     \n On  November  10,  2021,  Dr.  Taylor  released  the  claimant  from  care.  A  medical  record \nfrom Dr. Taylor regarding the claimant found at Respondent’s Exhibit 1, page 15, states in part \n“Status  post  six  weeks  out  from  repair  of  his  deep  intermetacarpal  volar  ligament.  He  is  doing \nwell. It is healing up and looks good. He has good range of motion. I am going to probably turn \nhim loose today and I will see him back if he has a problem.” \n The  claimant  sought  and  received  a  Change  of  Physician  from  the  Commission  in  this \nmatter  from  Dr.  Taylor  to  Dr.  James  Kelly.  The  claimant  has  been  seen  by  Dr.  Kelly  on  two \noccasions,  April  25,  2022,  and  June  1,  2022.  Dr.  Kelly  authored  a  letter  to  the  respondent \nregarding his April 25, 2022, visit with the claimant. The body of that letter follows. \nThank you very much for referring Richard Horn for consultation. \nAs  you  are  aware,  he  is  a  40-year-old  construction  employee  who \nworked  for  Harris  Company  at  Fort  Smith.  He  had  a  crushing \ninjury to his left middle finger on 02/02/2021. He had fractures of \nthe  3\nrd\n  finger.  He  was  taken  to  the  operating  room  by  Dr.  Robert \nTaylor  in  Rogers  Arkansas  on  02/04/2021.  He  had  debridement \nand  pinning  of  a  left  D3  P2  fracture.  He  also  had  an  A4  pulley \nrepair.   Once   this   healed,   he   had   stiffness   in   the   finger.   For \n\n \n-7- \nwhatever reason, at that point, once the hand healed Dr. Taylor had \nopted  to  do  a  ray  amputation  rather  than  reconstructing  the  long \nfinger.  I  asked  the  client  and  there  was  no  discussion  of  possible \njoint  replacements  or  tenolysis/capsulotomy.  Needless  to  say  he \nended  up  with  a  ray  amputation  of  the  3\nrd\n  ray.  He  did  not  have  a \nD2  metacarpal  transfer.  This  left  with  him  with  the  typical  gap \nopening in the palm and scissoring of the fingers when he makes a \nfist. This is a classic deformity for this type of ray amputation. He \nis also complaining of some numbness in the hand especially in the \nexaggerated web space but also in all of his fingertips including the \nthumb. \n \nIn  examining  him,  he  has  the  widening  of  the  palm  where  he  has \nobjects will fall through the between the 2\nnd\n and 4\nth\n fingers he also \nhad  a  positive  Tinel’s,  Phalen’s  and  compression  test  at  the  wrist. \nHe had blunted sensation in the median distribution of the hand. \n \nI  am  recommending  that  we  get  EMG/NCV  studies  completed  on \nhim.  I  will  see  him  back  once  these  have  been  completed.  I  have \ndiscussed  briefly  with  him  metacarpal  transfer  to  help  with  the \nfunctional use of his hand as well as probably, carpal tunnel release \nas well as possible exploration of the common digital nerves which \nmay  be  also  either  directly  injured  or  scarred  down  causing  him \nsensory  issues  in  the  hand.  I  will  see  him  back  here  in  the  office \nonce  the  nerve  study  has  been  completed  and  make  appropriate \nrecommendations there afterwards. \n \n On May 16, 2022, the claimant underwent an EMG of his left hand by Dr. Miles Johnson \nat the recommendation of Dr. Kelly. Following is a portion of that diagnostic report. \nSUMMARY:  Left  median,  radial,  and  ulnar  motor  studies  are \nnormal.   Left   median   ulnar   orthodromic   latency   difference   is \nnormal.  Medial  and  ulnar  antidromic  sensory  responses  to  the \nfourth  digit  were  normal.  Left  radial  sensory  response  to  the  first \ndigit was normal. Median sensory response of the second digit was \nnormal.  EMG  examination  of  the  left  upper  extremity  is  within \nnormal limits. \n \n On June 1, 2022, the claimant was again seen by Dr. Kelly. Following is a portion of that \nprogress note. \nMr.  Horne  presents  to  the  office  today,  he  underwent  EMG/NCV \nstudy  on  his  left  upper  extremity.  EMG  study  was  essentially \n\n \n-8- \nnormal. I think this is compatible with his findings. The numbness \nhe  gets  is  when  he  is  using  the  hand  it  is  applying  pressure  to  the \nnerve in the palm as well as the wrist and of course he has had the \nray  amputation  which  is  his  major  issue.  I  explained  what I \nrecommend  is  that  he  would  have  a  metacarpal  transfer  of  the  2\nnd\n \nto  the  3\nrd\n  spot  and  we  will  plate  the  metacarpal  in  place.  I  also \nwould complete an endoscopic carpal tunnel release and I think in \ndoing so this will eliminate the intermittent numbness he is getting \nin his hand. Metacarpal transfer will also provide better functional \nuse  of  the  finger  as  currently  he  drops  objects  into  the  widened \nweb  space  as  well  as  he  has  weak  grip  strength  because  of  the \nscissoring  that  the  ray  amputation  has  caused.  I  explained  that  by \nremoval of the widened web space and alignment of the metacarpal \nthis should improve functional use strength and decrease the pain. \nHe  wants  to  think  about  this  so  I  am  going  to  leave  it  for  him  to \ndecide,  if  he  decides  he  would  like  to  proceed  he  just  needs  to \ncontact our office. \n \n The  respondent  in  this  matter  engaged  the  services  of  a  company  called “genex”  to \nreview  the  surgical  recommendations  of  Dr.  Kelly.  A “physician  advisor  report”  is  found \nRespondents  Exhibit  1,  pages  36-40.  That  report  is  signed  by  Dr.  Aaron  Humphreys,  who  is \nlicensed both in Texas and Alaska. It appears from my review of the report that Dr. Humphreys \nagrees with the surgical recommendations of Dr. Kelly except to modify the recommendation as \nnot  to  perform  the  carpal  tunnel  release  as  part  of  the  surgical  intervention.  Following  is  a \nportion of Dr. Humphrey’s report specifically a section subtitled “analysis and clinical basis for \nconclusion” regarding carpal tunnel release. \nAnalysis and Clinic Basis for Conclusion \n \nThe  ODG  supports  a  carpal  tunnel  release  for  non-severe  carpal \ntunnel  syndrome  when  there  are  corroborating  subjective  and \nobjective   findings,   no   current   pregnancy   or   other   treatable \ndiseases, failure to 3 initial conservative treatments, and a positive \nleft  diagnostic  test  for  median  nerve  entrapment.  The  ODG  does \nnot  address  a  ray  transfer  or  fascial  release.  The  journal  of  the \nAmerican   academy   of   orthopedic   surgeons   states   that   right \nresection  with  or  without  adjacent  ray  transfer  can  be  useful  for \ntreating vascular insufficiency, tumors, infection, trauma, recurrent \n\n \n-9- \nDupuytren  contracture,  and  congenital  tonalities  of  the  hand.  The \nODG   supports   a   fascial   release   for   forearm   compartment \nsyndrome.  The  ODG  supports  surgery  following  reconstructive \nhand  surgery.  In  this  case,  the  claimant  has  an  extensive  surgical \nhistory  including  a  ray  amputation  of  the  third  ray.  There  is  a \npersistent  deformity  and  function  postoperatively  resulting  in  the \ngap opening in the palm and scissoring of the fingers when making \na  fist.  The  examination  is  concerning  for  carpal  tunnel  syndrome; \nhowever,  a  recent  EMG/NCV  (electromyogram/nerve  conduction \nvelocity) was noted to be negative for peripheral nerve entrapment \nor neuropathy. The LT D2 ray transfer to D3 would be appropriate \nto   optimize   function   and   prognosis   in   this   case;   however, \nclarification  is  needed  to  support  the  carpal  tunnel  release  and \nfascial  release.  Based  on  the  available  information,  left  CTR \n(carpal  tunnel  release)  (end0)  &  fascial  release  forearm  CPT-\n29848,   25020   is   not   medically   necessary   and   noncertified; \nhowever,  LT  D2  ray  transfer  to  D3  CPT –  29125,  26555  is \nmedically necessary and certified. \n \n I  know  that  the  report  from  Dr.  Humphreys  was  requested  on  September  29,  2022,  as \nfound  on  the  report’s  first  page  at  Respondent’s  Exhibit  1  page  36;  however,  the  report  date  is \nblank  on  that  same  page.  Page  40  of  Respondent’s  Exhibit  1  indicates  a  peer-to-peer  contact \noccurred on September  30, 2022, but the actual  date of Dr. Humphrey’s  report is otherwise not \nknown. \n On October 3, 2022, Dr. Kelly appears to respond to Dr. Humphreys’ report via letter to \nthe respondent. The body of that letter follows. \nAddressing this letter pertaining to our mutual client Richard Horn. \nHe is scheduled to have left D2 metacarpal transfer to the right 3\nrd\n \nas well as Ray amputation of the right 2\nnd\n metacarpal base. This is \nsecondary to the crushing injury where he had an amputation of his \nright  3\nrd\n  finger.  He  is  also  complaining  of  numbness  in  the  thumb \nand  index  finger.  This  is  related  to  his  carpal  tunnel  syndrome \nwhere he had both positive physical findings. As far as his negative \nconduction studies, I am sure you are aware that 10% of the people \ncan  have  false  negative  EMG/NCV  studies.  His  physical  findings \nare much more accurate and predictable of carpal tunnel syndrome. \nHis carpal tunnel syndrome is definitely related to his injuries as he \n\n \n-10- \nhad  a  crushing  type  injury  which  is  a  common  outcome  for \ndevelopment of carpal tunnel syndrome.  \nPostoperative  swelling  and  the  two  surgical  procedures  he  had \nthere afterwards on his hand all relate to this diagnosis. I hope this \nletter  is  self-explanatory.  If  my  staff  or  myself  can  be  of  any \nfurther assistance please feel free to contact us. \n \n On   February   20,   2023,   Dr.   Kelly   authors   a   letter   to   the   claimant’s   attorney \nacknowledging  a clerical error in his note dated  October 3, 2022, which  indicates left  and right \nhands  and  should  have  only  stated  left  hand.  That  letter  is  found  at  Claimant’s  Exhibit  1,  page \n35. \n After a review of all of the medical evidence and testimony in this matter, I find that the \nsurgical  recommendation  of  Dr.  Kelly  is  reasonable,  necessary  medical  treatment  for  the \nclaimant’s  compensable  left-hand  injury,  to  include  the  carpal  tunnel  release  recommended  by \nDr.  Kelly.  As  Dr.  Kelly  has  examined  the  claimant  on  two  occasions,  I  give  him  more  weight \nthan Dr. Humphreys, who has never examined the claimant. I am also persuaded by Dr. Kelly’s \nOctober  3,  2022,  letter  which  he  clearly  sets  out  the  need  for  carpal  tunnel  release,  which \nincludes both the claimant’s injury itself and the three types of surgical intervention he has had at \nthe hands of Dr. Taylor since that time. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJanuary  9,  2023,  and  contained  in  a  Pre-hearing  Order  filed  January  10,  2023,  are  hereby \n\n \n-11- \naccepted  as  fact.  The  parties’  additional  stipulation  set  forth  at  the  beginning  of  the  hearing  is \nalso accepted as fact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nadditional  medical  treatment  for  his  compensable  left-hand  injury  in  the  form  of  surgery  as \nrecommended by Dr. Kelly which includes carpal tunnel release. \n ORDER \nThe respondents shall pay the costs associated with the recommended surgical treatment \nof Dr. Kelly, including the carpal tunnel release and costs associated with the surgical aftercare. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":20333,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H101762 RICHARD HORN, Employee CLAIMANT HARRIS CO. OF FORT SMITH, Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier RESPONDENT OPINION FILED MAY 25, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Cla...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["fracture","back","wrist","carpal tunnel"],"fetchedAt":"2026-05-19T23:07:57.664Z"},{"id":"alj-H203380-2023-05-25","awccNumber":"H203380","decisionDate":"2023-05-25","decisionYear":2023,"opinionType":"alj","claimantName":"Juan Nieves","employerName":"A B M Industries, Inc","title":"NIEVES VS. A B M INDUSTRIES, INC. AWCC# H203380 MAY 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/NIEVES_JUAN_H203380_20230525.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NIEVES_JUAN_H203380_20230525.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203380 \n \nJUAN R. NIEVES,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nA B M INDUSTRIES, INC., \nEMPLOYER                                                                                                         RESPONDENT \n \nINDEMNITY INS. CO. Of NORTH AMERICA/ \nESIS, INC. \nCARRIER/TPA                                                                                             RESPONDENT \n \n                                                                                                                     \n \nOPINION AND ORDER FILED MAY 25, 2023, TO HOLD RESPONDENTS’ MOTION \nTO DISMISS WITHOUT PREJUDICE IN ABEYANCE FOR 30 DAYS \n \n \nHearing conducted on Wednesday, May 24, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Juan R. Nieves, pro se, of Little Rock, Pulaski County, Arkansas, appeared at \nthe hearing. \n \nThe respondents were represented by the Honorable Eric Newkirk, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n     A hearing was conducted on Wednesday, May 24 2023, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark.  Code  Ann.  §  11-9-702(a)(4)  (2023  Lexis \nReplacement) and Commission Rule 099.13 (2023 Lexis Replacement). \n     On  April  3,  2023,  the  respondents  filed  with  the  Commission  a  motion  to  dismiss  without \nprejudice (MTD) for lack of prosecution. Thereafter, pursuant to the applicable law and in advance \nof the hearing the claimant was mailed a copy of the respondents’ MTD and the subject hearing \nnotice. The claimant, Mr. Juan R. Nieves, appeared in person at the hearing. He advised he did in \nfact intend to pursue his claim; he was willing to cooperate with the respondents’ in completion of \n\nJuan R. Nieves, AWCC No. H203380 \n2 \n \nnecessary and appropriate discovery including but not limited to his sworn deposition testimony; \nand that he would file a response to the prehearing questionnaire, as he did not recall receiving this \ndocument. In addition, both the claimant and the respondents’ attorney agreed that, presuming they \nwere  able to resolve  a possible medical lien issue, they expected the claim may be settled via a \njoint petition settlement agreement in due course. \n     Consequently, both the claimant and the respondents’ attorney agreed  in  requesting  the  ALJ \nhold in abeyance a decision on the respondents’ MTD filed April 3, 2023, for a period of 30 days, \nor until Friday, June 23, 2023. The parties will advise the ALJ on or before this date – Friday, June \n23, 2023 – as to whether any and all issues have been resolved, or if the claimant wishes to proceed \nto a hearing. If the issues have not been resolved, the parties may request additional time to resolve \nthem, if needed, or may ask for any and all other appropriate Commission action or relief as may \nbe necessary.  \n     If any and all outstanding issues have not been resolved as expected by Friday, June 23, 2023, \nand  the  claimant  advises  he  wishes  to  proceed  to  a  hearing,  he  shall  file  his  prehearing \nquestionnaire response in a timely manner. If the claimant fails to cooperate with the respondents \nin the discovery process; or if he fails to file a timely response to the prehearing questionnaire the \nALJ will draft and enter an opinion and order of dismissal without prejudice without the necessity \nof the respondents’ having to draft and file another motion, and without the necessity of the ALJ \nconducting another hearing on the respondents’ MTD.  \n    The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto, as well as the Commission’s entire file in this matter. \n \n \n\nJuan R. Nieves, AWCC No. H203380 \n3 \n \nDISCUSSION \n     Consistent  with Ark.  Code  Ann.§  11-9-702(a)(4),  as  well  as  our  court  of  appeals’  ruling  in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim at this time. \n     Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having  been  mailed due  and  legal  notice  of  both  the  respondents’  MTD  and  the \nsubject hearing date, time, and place, the claimant appeared in person, pro se, at the hearing. \n \n3. The claimant advised on the record he wished to pursue his claim. \n \n4. The ALJ shall hold in abeyance a decision on the respondents’ subject motion to \ndismiss without prejudice for a period of 30 days, or until Friday, June 23, 2023.  \n \n5. The parties have 30 days from the hearing date, or until Friday, June 23, 2023, to obtain \n             any and all additional information they require and to resolve the aforementioned issues.  \n \n6. The parties shall advise the ALJ on or before Friday, June 23, 2023, whether the subject \nissues have been resolved. If the parties have not resolved the issues by the agreed deadline \nthey may request additional time to do so, or may request any and all other Commission \naction and/or relief as may be deemed necessary and appropriate under the circumstances.  \n \n7. Moreover,  if  any  and  all  outstanding  issues  have not been  resolved  to  the  parties’ \nsatisfaction by Friday, June 23, 2023, the claimant shall file his response to the prehearing \nquestionnaire in a timely manner. If he fails to do so, or if he fails to cooperate with the \nrespondents  in  the  discovery  process,  the  ALJ  shall  draft  and  file  an  opinion  and  order \ngranting the respondents MTD without prejudice, and may do so without the necessity of \neither the respondents filing another motion, and without the necessity of the Commission \nholding another hearing on the motion.  \n\nJuan R. Nieves, AWCC No. H203380 \n4 \n \n \n     If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n     IT IS SO ORDERED. \n                                                            \n____________________________                                                                      \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n\nJuan R. Nieves, AWCC No. H203380 \n5","textLength":7201,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203380 JUAN R. NIEVES, EMPLOYEE CLAIMANT A B M INDUSTRIES, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. Of NORTH AMERICA/ ESIS, INC. CARRIER/TPA RESPONDENT OPINION AND ORDER FILED MAY 25, 2023, TO HOLD RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE IN ...","outcome":"dismissed","outcomeKeywords":["dismissed:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:59.723Z"},{"id":"alj-H007008-2023-05-25","awccNumber":"H007008","decisionDate":"2023-05-25","decisionYear":2023,"opinionType":"alj","claimantName":"Magan Osburn","employerName":"City Of Fayetteville","title":"OSBURN VS. CITY OF FAYETTEVILLE AWCC# H007008 MAY 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/OSBURN_MAGAN_H007008_20230525.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"OSBURN_MAGAN_H007008_20230525.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H007008 \n \nMAGAN OSBURN, Employee CLAIMANT \n \nCITY OF FAYETTEVILLE, Employer RESPONDENT \n \nMUNICIPAL LEAGUE, Carrier RESPONDENT \n \n \n \n OPINION FILED MAY 25, 2023 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents  represented  by  MARY  K.  EDWARDS,  Attorney  at  Law,  North  Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On  February  28,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on  January  9,  2023,  and  a  Pre-hearing \nOrder  was  filed  on  January  10,  2023.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on June 11, \n2020. \n 3. The claimant sustained a compensable injury to her head, neck, and right shoulder on \nJune 11, 2020. \n 4. All prior opinions are final and res judicata. \n\n \n-2- \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to her lower back on June 11, 2020. \n 2. Whether Claimant is entitled to medical treatment for her lower back as recommended \nby Dr. James Blankenship. \n Claimant’s contentions are: \n“Claimant  contends  she  is  entitled  to  treatment  for  her  back, \ndepression  and  anxiety  as  recommended  by   Dr.  Blankenship. \nClaimant reserves all other issues.” \n \n Respondents’ contentions are: \n  \n“Respondents  contend  that  they  accepted  claimant’s  head,  neck, \nand   right   shoulder   and   have   paid   related   medical   treatment. \nClaimant   is   continuing   to   receive   medical   treatment   for   her \ncervical  injury,  and  respondents  are  paying  for  that  treatment.  Dr. \nBlankenship  has  recommended  medical  treatment  for  claimant’s \nback. The back was never accepted. Respondents contend claimant \ncannot  prove  by  a  preponderance  of  the  evidence  she  sustained  a \ncompensable  back  injury.  Further,  the  medical  evidence  is  not \nsupported by objective findings of an injury to her back. Please see \nattached   Exhibit “A”.   In   addition,   respondents   contend   that \nclaimant cannot prove by a preponderance of the evidence that she \nhas sustained a mental injury.” \n  \n The  claimant  in  this  matter  is  a  35-year-old  female  who  worked  for  the  respondents  in \ntheir waste department.  On June  11, 2020, the claimant was on the back  of a waste truck when \nshe  fell  off  and  hit  the  ground.  The  claimant  sustained  compensable  injuries  to  her  head,  neck, \nand right shoulder at that time. The claimant has now asked the Commission to consider whether \nshe sustained a compensable lumbar spine injury in that same June 11, 2020, incident. Following \nis a portion of the claimant’s direct examination testimony about her June 11, 2020, incident. \n  Q And what happened to you when  you were working \n  for the City of June 11\nth\n of 2020. \n \n  A I was on the back of a yard waste truck and I was \n\n \n-3- \n  slung off the side of it and hit the ground. \n \n  Q And when you hit the ground, how did you land? \n \n  A I landed on my right side, hit my head and my shoulder \n  and my hip and all down m leg. \n \n  Q Okay.  And after this injury occurred, did you have  \n  bruising anywhere? \n \n  A Yes.  I had bruising on my shoulder and my hip. \n \n  Q On the right-hand side? \n \n  A Yes, ma’am. \n \n \n The  claimant  was  seen  the  day  of  her  June  11,  2020,  incident  at  Arkansas  Occupational \nHealth Clinic by Daniel Nicholas, PA-C. Following is a portion of that medical record. \nCHIEF COMPLAINT \nFall injury. \n \nPATIENT DESCRIPTION OF ACCIDENT \nPatient  states  she  was  slung  off  the  back  of  the  yard  waste  truck \nonto the pavement. She states she is having pain in her neck, right \nshoulder and right hip. She also complains of headache and thrown \nup 4 times. \n \n*** \nDIAGNOSIS \n1.   Contusion   of   unspecified   part   of   head,   initial   encounter \n(500.93XA). \n \n*** \nMEDICAL CAUSATION \nThe cause of this problem appears to be related to work activities. \n \n The claimant was again seen two days later by PA-C Nicholas. Following is a portion of \nthat medical report. \nCHIEF COMPLAINT \nFall injury. \n\n \n-4- \n \nPATIENT DESCRIPTION OF ACCIDENT \nPatient  states  she  was  slung  off  back  of  the  yard  waste  truck  onto \nthe pavement. She states is having pain in her neck, right shoulder \nand  right  hip.  She  also  complains  of  headache  and  thrown  up  4 \ntimes. \n \n*** \nHISTORY OF PRESENT ILLNESS \nMagan’s  primary  problem  is  pain  located  in  the  right  shoulder, \nneck. She describes it as numbness, burning. She considers it to be \nminimal/moderate.  The  problem  began  on  6/11/2020.  Magan  says \nthat  it  seems  to  be  constant,  variable –  depending  on  the  activity \nlevel.  She  has  noticed  that  it  is  made  worse  by  looking  down, \nlooking  up,  lifting,  pulling.  It  is  improved  with  rest.  Magan’s \nsecondary problem is pain located in the right hip. She describes it \nas  sore.  She  considers  it  to  be  minimal.  The  problem  began  on \n6/11/2020. She has noticed that it is made worse by pressure.  It is \nimproved with no pressure. She feels it is improving. \n \n On  November  9,  2020,  the  claimant  was  seen  at  the  Neurosurgery  Spine  Center  by  Dr. \nJames Blankenship. Following is a portion of that medical record. \nHPI: \nThe  patient  has  neck  pain,  mid  scapular,  and  mid  back  pain.  She \nhas  intermittent  pain  in  the  right  upper  extremity.  She  denies  any \nbalance  problems.  She  does  have  decreased  strength  in  the  right \narm.  She  has  had  no  steroid  medications.  She  did  12  visits  to \nphysical  therapy.  She  was  injured  on  6/11/2020  when  she  was \nthrown  off  a  yard  waste  truck  and  hit  her  head  on  the  right  side. \nShe had a concussion.  MRI of her brain was normal. She also has \nan  MRI  of  her  cervical  spine  and  thoracic  spine.  Both  were  read \nout as negative and  I have reviewed them and  agree that there are \nno  disc  protrusions  although  there  is  a  loss  of  normal  cervical \nlordosis  so  it  is  not  negative.  She  has  continued  to  work  at  light \nduty  throughout  her  treatment.  At  present  she  only  takes  Flexeril \non an as-needed basis. \n \n*** \nImpression: \nHer  general  neurologic  examination  is  unremarkable.  She  has \nsignificant  mechanical  neck  pain  worst  in  extension.  I  think  that \nher   facets   are   likely   the   primary   etiology   with   significant \nmyofascial pain. \n\n \n-5- \n \n*** \nRecommendations: \nREFER TO: \nCannon, David (479-582-2800) \nI  have  recommended  we  start  her  on  Celebrex  and  Lyrica.  I  am \nfine  with  her  working  with  restrictions  but  it  sounds  like  she  is \ndoing her regular job and not under restrictions so we have written \nout   some   specific   restrictions   for   her   today.   I   have   also \nrecommended  that  she  get  started  working  with  Steve  in  physical \ntherapy and he has examined her today. I have also recommended \nthat we get her to see Dr. David Cannon for consideration of facet \ninjections  in  her  neck.  I  cannot  really  guide  him  as  far  as  what \nfacets based on MRI or x-rays. I will leave it to his wisdom under \nfluoroscopic examination the best idea of where to inject her. I am \ngoing  to  see  her  back  in  eight  weeks  since  she  will  continue  to \nwork. I do not think there is any urgency in seeing her any sooner. \nWe  need  to  give  this  some  time  and  try  to  get  better  with  an \naggressive  active  conservative  treatment  plan.  She  is  having  a \nsignificant amount of right hip pain but she landed on her right hip \nand  I  think  this  may  very  well  be  local  trauma  but  if  it  is  not \ngetting better we may need to get an MRI of her lumbar spine but \nwe are going to hold on that for a little bit. \n \n The  respondent  in  this  matter  denied  treatment  for  some  of  the  claimant’s  other \ncompensable  injuries  arising  out  of  her  June  11,  2020,  incident.  As  such,  those  matters  entered \ninto  litigation  and  it  was  not  until  February  2022  that  the  claimant  was  again  seen  by  Dr. \nBlankenship. Following is a portion of the claimant’s visit note from her February 17, 2022, visit \nwith Dr. Blankenship. \nHPI: \nThe patient is in today for follow up after a new MRI. We saw the \npatient   last   in   November   of   2020.   At   that   time   we   made \nrecommendations  for  physical  therapy,  medications,  and  a  new \nMRI  but  unfortunately  her  workmen’s  compensation  carrier  did \nnot  approve  that.  She  is  still  having  neck  pain  that  radiates  to  the \nbilateral   shoulders   and   mid   scapula.   She   has   bilateral   upper \nextremity numbness. She describes electrical shock-like pains that \ngo  down  both  arms  and  around  in  her  chest  area.  She  denies  any \nbalance  problems  but  does  continue  to  have  occipital  headaches. \nThe patient is also having low back pain that has been continuous. \n\n \n-6- \nShe states that it is sharp and is electrical and a shocking-type pain. \nShe  is  still  working  at  the  city.  She  has  not  had  any  injections  or \nphysical  therapy.  She  was  not  able  to  start  the  medications.  She \nrates her pain about 60 to 70% toward the worse pain imaginable. \n \n*** \nImpression: \nMs. Osburn returns to the office. I have not seen Ms. Osburn since \nNovember   of   2020.   At   that   time   we   recommended   an   ESI, \nmedication, and physical therapy. Unbeknownst to us, this was all \ndenied  almost  immediately  and  she  has  been  fighting  with  them \never  since.  The  patient  has  neck  pain,  mid  scapular,  and  bilateral \nupper extremity numbness. She has electrical shock-like pain down \nboth  arms.  I  have  reviewed  her  MRI  in  its  entirety  that  shows  a \ngross annual fissure at C5-C6 with a small lateral disc protrusion at \nC4-C5. \n \nRecommendations: \nI  have  recommended  basically  that  we  treat  her  the  same  way  I \nsaid  we  should  treat  her  a  year  and  a  half  ago.  Her  delay  in \ntreatment possibly could lead to  chronic pain syndrome and  I will \nbe more than happy to address that with anyone that wants to know \nthat her delay in care has created this. I still think that since she is a \ngo-getter, we have a chance to make this better. \n \nI  have  recommended  that  we  get  her  in  to  see  Dr.  David  Cannon \nfor a CESI. I recommended that we get her started on Celebrex and \nLyrica at 50 mg b.i.d. We will get her started working with Steve’s \nfolks  with  an  aggressive  active  physical  therapy  program.  I  will \nplan on seeing her back eight weeks after this program is approved \nand  started.  I  will  now  answer  the  questions  that  were  forwarded \nby Ms. Dixon who is her case manager I have assumed. \n \n*** \n5.  As  far  as  recommendations  for  work  restrictions,  Dr.  Cannon \nhas  already  placed  work  restrictions  on  her  and  I  agree  with  them \ncompletely.  You  can  see  his  note.  Also  I  have  recommended  a \nlumbar  MRI  that  has  not  been  done.  Again,  her  chronic  lumbar \npain  has  been  unaddressed  and  I  do  think  it  is  directly  work-\nrelated. \n \n The claimant was again seen by Dr. Blankenship on June 23, 2022. Following is a portion \nof that visit note. \n\n \n-7- \nHPI \nThe  patient  is  in  today  for  followup.  She  has  been  doing  her \nphysical  therapy  with  Steve.  She  did  get  a  cervical  epidural \ninjection  that  did  afford  her  some  relief.  She  is  still  having  some \nneck  pain  and  bilateral  upper  extremity  paresthesias.  Her  greatest \npain  complaint  is  low  back  pain  that  radiates  to  the  bilateral  hips \nand  bilateral  buttocks.  She  rates  her  pain  about  60  to  70%  toward \nthe  worst  pain  imaginable.  Her  workers’  compensation  carrier \nwould not allow her to get a lumbar MRI. \n \n*** \nImpression \nFirst of all I have requested a lumbar MRI because I do think that \nher back pain is related to her work-related injury but her worker’s \ncomp  carrier  has  denied  this.  Her  neck  pain  is  better  and  she  is \nimproving.  She  is  a  year  out  from  her  injury  and  she  does  have \nannual  fissuring  at  C5-C6  and  at  C4-C5.  I  do  think  that  with  her \nneck   improving,   I   would   not   at   present   offer   her   surgical \nintervention.  I  still  feel  like  she  needs  to  have  her  lumbar  spine \nworked  up.  She  has  been  doing  her  therapy  with  Trinity  and  I \nwould like for her to continue to do that. She got one injection by \nDr. Cannon that helped. \n \nRecommendations \nREFER TO \nCannon, David (479-582-2800) \nI  would  like  her  to  see  Dr.  Cannon  again  to  see  if  he  would \nrecommend  another  injection  but  I  am  going  to  see  her  back  in \neight  weeks.  If  we  can  get  a  lumbar  MRI  approved  of  her  lumbar \nspine, I will see her back sooner and we will go over this with her. \nI have also prescribed Lyrica and Celebrex and her worker’s comp \ncarrier will not authorize this. This was prescribed for her neck. If \nthey do not authorize her MRI or medications, then I am not going \nto be able to treat her because they have basically hamstrung me in \nnot allowing me to treat her as I see fit. \n \n The   claimant   eventually   underwent   a   lumbar   spine   MRI   recommended   by   Dr. \nBlankenship at her own expense. Following is a portion of that diagnostic report. \nIMPRESSION: \n1. L5-S1 foraminal narrowing on the right with extreme lateral disc \nprotrusion and midline disc protrusion slightly eccentric off to the \nleft. Severe facet arthropathy is noted at this level. \n\n \n-8- \n2.  L4-L5  moderate  bilateral  lateral  recess  lateral  recess  stenosis \nsecondary to facet arthropathy and ligamentous hypertrophy. \n3. Multilevel facet arthropathy as described in the narrative. \n \n On November 28, 2022, the claimant saw Dr. Blankenship. Following is a portion of that \nvisit note. \nHPI: \nThe  patient  is  in  today  for  followup.  She  states  that  she  is  still \nhaving  significant  neck  pain  that  radiates  to  the  bilateral  upper \nextremities.  She  has  pain  and  numbness  in  both  arms,  right  worse \nthan   left.   She   has   decreased   strength   in   the   bilateral   upper \nextremities.  She  has  been  doing  her  physical  therapy  with  Steve. \nShe  says  this  does  not  afford  her  any  significant  relief.  She  tried \nmeloxicam with no relief. She was never able to ger her Lyrica or \ngabapentin filled because her workmen’s compensation carrier did \nnot  cover  this.  She  is  also  having  some  significant  low  back  pain \nthat  radiates  to  the  bilateral  hips,  bilateral  buttocks,  and  bilateral \nmedial  leg  numbness.  She  denies  any  weakness  in  the  lower \nextremities.  Prolonged  sitting,  standing,  walking,  and  bending  all \nsignificantly  aggravate  her  pain.  She  does  have  new  MRI’s  for \nreview today. She had a CESI with Dr. Cannon that only afforded \nher very temporary relief. \n \n*** \nImpression: \nMs.  Osburn  is  back  in  the  office  today  for  followup.  We  saw  her \nlast  in  June  of  this  year.  She  is  currently  on  meloxicam  even \nthough  I  recommended  Celebrex  and  they  would  not  approve  her \nLyrica  or  even  gabapentin  which  is  amazing  because  it  is  dirt \ncheap.  I  told  her  we  need  to  again  try  to  get  her  on  those \nmedications,  preferably  Lyrica  at  75  mg  twice  a  day.  Her  lower \nback  is  bothering  her  about  as  bad  as  her  neck  and  all  of  this \nstarted  with  her  on-the-job  injury  although  her  worker’s  comp \ncarrier is not covering her lower back. \n \n*** \nRecommendations: \nREFER TO: \nCannon, David (479-582-2800) \nI have recommended concerning her lower back that we get her in \nto  see  Dr.  Cannon  for  an  LESI  even  though  she  did  not  get  any \nrelief with her CESI. I have recommended that we have Steve start \nworking on her lower back and then follow back up with me in six \n\n \n-9- \nweeks.  Concerning  her  lower  back,  I  have  recommended  that  we \nget her back in to see Dr. Cannon. Her CESI was done almost three \nmonths ago and I have recommended that she get another CESI.  I \nhave  also  recommended  that  we  start  her  on  Lyrica.  We  had \nrecommended  that  at  her  last  visit.  That  and  gabapentin  were \ndenied which again is somewhat mind-boggling. \n \nAgain,  it  is  my  opinion  based  on  a  reasonable  degree  of  medical \ncertainty that the patient’s lower back problem along with her neck \nwas  created  by  her  on-the-job  injury.  She  had  a  significant  injury \nand what I am seeing on her MRI and her plain radiographs would \nbe consistent with an injury of this degree. \n \n At  the  request  of  the  respondent,  Dr.  Theodore  Hronas  reviewed  the  following  medical \nrecords regarding the claimant and authored a letter regarding them on December 18, 2022.  \n  At your request, the following films and reports were reviewed: \n  MRI of the cervical spine, 08/07/2020.  NW Imaging Center \n  Fayetteville \n  MRI of the thoracic spine, 08/07/2020.  NW Imaging Center \n  Fayetteville \n  Clinic note, 08/27/2020.  Michael Calhoun, MD \n  MRI of the cervical spine, 02/09/2022.  Physicians Specialty \n  Hospital \n  MRI of the lumbar spine, 10/21/2022.  Mana MRI. \n  MRI of the cervical spine, 11/16/2022.  Mana MRI. \n \n \nI  note  that  while  Dr.  Hronas  reviewed  several  diagnostic  tests  and  a  singular  report  from  Dr. \nCalhoun, he did not review any reports from Dr. Blankenship including those that considered the \nclaimant’s right hip and lumbar spine. Following is a portion of Dr. Hronas’ letter of December \n18, 2022, that discusses the claimant’s lumbar spine. \nThe  MRI  exam  of  the  lumbar  spine,  10/21/2022,  was \nperformed   approximately   two   years   after   the   date   of \ninjury.    The  MRI  exam  of  the  lumbar  spine  shows  a \nnormal  vertebral  body  alignment  with  no  evidence  of \nfracture or subluxation.   The T12/L1, L1/2, and  L2/3 disc \nlevels  are  normal.    At  L3/4,  the  disc  space  is  preserved.  \nThere  is  mild  bilateral  facet  arthropathy  at  L3/4  with  no \ncentral  canal  stenosis  or  foraminal  narrowing.    At  L4/5, \n\n \n-10- \nthere is mild diffuse disc bulging and presence of a central \nannular  fissure.    There  is  bilateral  mild  facet  arthropathy.  \nThis  level  demonstrates  mild  central  and  lateral  recess \nstenosis   and   bilateral   mild   foraminal   narrowing.      At \nL5/S1,  there  is  disc  height  loss  and  disc  desiccation, \nposterior  osseous  ridging  more  prevalent  on  the  right \nextending to the far  extraforaminal location,  and  presence \nof  a  small  central  disc  protrusion  effacing  the  anterior \nepidural  space.    There  is  mild  bilateral  facet  arthropathy.  \nThese changes are resulting in mild central canal stenosis,  \nmild  left  and  moderate  right  foraminal  narrowing.    The \npresence of posterior osseous ridging at the L5/S1 level is \nconsistent with chronic degenerative change. \n \nIn summary, additional imaging studies of the cervical and \nlumbar  spine  demonstrate  chronic  degenerative  changes \nwith  no  objective  findings  of  an  acute  injury  as  the  result \nof the work injury that occurred on 06/11/2020. \n \n The  claimant  has  asked  the  Commission  to  determine  if  she  suffered  a  compensable \ninjury to her lumbar spine on June 11, 2020, in the same incident that she suffered compensable \ninjuries  to  her  head,  neck,  and  right  shoulder.  It  is  the  claimant’s  burden  to  prove  her  lumbar \nspine  injury  compensable.  The  report  from  the  claimant’s  lumbar  spine  MRI  performed  on \nOctober 21, 2022, in part states “L5-S1 femoral narrowing on the right with extreme lateral disc \nprotrusion  and  midline  disc  protrusion  slightly  eccentric  off  to  the  left.”  Through  that  MRI  the \nclaimant is able to show the existence of objective medical findings regarding her lumbar spine. I \ndo  note  that  while  Dr.  Blankenship’s  report  reports  an  L5-S1 “femoral  narrowing  on  the  right \nwith  extreme  lateral  disc  protrusion  and  midline  disc  protrusion,”  Dr.  Hronas  in  his  December \n18, 2022, letter discusses the claimant’s L5-S1 level and states “presence of a small central disc \nprotrusion  effacing  the  anterior  epidural  space.”  Dr.  Hronas  does  not  note  any  additional \nprotrusion  at  L5-S1.  Here,  I  give  Dr.  Blankenship  more  weight  as  he  has  examined  and  treated \nthe claimant and it appears Dr. Hronas was not provided or did not review medical records from \n\n \n-11- \nthe claimant’s treatment with Dr. Blankenship and only reviewed  Dr. Calhoun’s singular report \nand imaging films from the claimant’s diagnostic testing. \n It was the claimant’s credible testimony that she had no prior issues with her low back or \nright  hip  prior  to  her  June  11,  2020,  incident.  The  respondent  does  make  a  point  in  cross \nexamination testimony from the claimant that documents she signed regarding the June 11, 2020, \nincident and found on pages 1-3 of Respondent’s Exhibit 2 do not mention her right hip or low \nback  or  lumbar  spine.  However,  the  claimant’s  initial  medical  records,  including  her  visit  to \nArkansas  Occupational  Health  Clinic  on  the  day  of  the  incident,  do  mention  her  right  hip \ncomplaints.  The  claimant’s  November  9,  2020,  visit  considers  her  right  hip  pain  along  with \nlumbar  spine  implications  as  follows: “She  is  having  a  significant  amount  of  right  hip  pain  but \nshe landed on her right hip and I think this may very well be local trauma but if it is not getting \nbetter we may need to get an MRI of her lumbar spine but we are going to hold off on that for a \nlittle  bit.”  It  seems  clear  that  Dr.  Blankenship  believes  her  right  hip  pain  may  be  a  result  of  a \nlumbar  spine  injury  from  her  work  incident  but  wants  the  claimant  to  have  more  time  before  a \nlumbar MRI for her symptoms to ease in the event that they are a result of “local trauma.” \n Many  months  later  at  the  claimant’s  February  17,  2022,  visit  with  Dr.  Blankenship,  the \nclaimant still has complaints regarding her right hip and Dr. Blankenship recommends an MRI of \nthe  lumbar  spine.  The  claimant  gave  testimony  about  her  symptoms  around  the  time  of  her \nFebruary 17, 2022, visit with Dr. Blankenship as follows. \n  Q Now, when you got back to Dr. Blankenship for the second \n  time after that long delay, what were your symptoms like at that \n  point? \n \n  A They were the same that I had talked about from the very \n  beginning.  My shoulder was still hurting.  My neck was still \n  hurting.  Above - - sorry.  I know I can’t point.  Above my - - \n\n \n-12- \n  like right at the top of my right butt cheek into like the hip \n  area is where it was hurting and it’s continued to be the same \n  from the very beginning. \n \n  Q And so when you got to see him again, what recommend- \n  dations did he make? \n \n  A That is when he started pushing for the MRI on my lower \n  back because he wasn’t convinced that it was just a hip issue and \n  he wanted the MRI done on my lower back and it kept being \n  denied. \n \n  Q And did he prescribe anything else that was denied? \n \n  A He had prescribed a couple of different medications and \n  they were all denied at that point. \n \n  Q Okay.  Now, can you describe the kind of pain that you \n  are having in your right hip and your low back? \n \n  A It is like a burning poke, needling if you will, I guess, \n  sensation that is always there in like the top portion of my  \n  butt I guess you would say, lower back, right at the top of \n  my  butt cheek and radiates across my back toward the left \n  hip.  And it will go down my leg sometimes.  It varies on \n  what it does, but there is constant radiation that goes across \n  my back from my right hip. \n \n  Q Okay.  And which leg does the pain go down? \n \n  A My right leg. \n \n  Q Now, those symptoms that you have described, have \n  they increased since through when you first had this accident \n  or have they remained the same? \n \n  A They have been the same, but it feels like it is going \n  further over to my left hip than it originally was. \n \n  Q And originally did you have pain into your right leg? \n \n  A No.  That is just slowing happening over time. \n   \n     \n   \n\n \n-13- \nThe  claimant  is  able  to  prove  the  existence  of  objective  medical  findings  regarding  her \nlumbar  spine,  but  she  must  also  prove  a  causal  connection  between  those  objective  medical \nfindings  and  the  June  11,  2020,  incident.  I  believe  the  claimant  has  met  her  burden  of  proof. \nWhile  the  documents  she  signed  after  the  injury  do  not  reflect  a  right  hip  or  lumbar  injury,  the \ninitial medical records do reflect right hip pain. It is that same right hip pain that Dr. Blankenship \nlater suspects to be related to her lumbar spine which shows a clear derangement in the MRI of \nher lumbar spine. \n The  claimant  is  able  to  prove  by  a  preponderance  of  the  evidence  that  she  sustained  a \ncompensable  lumbar  spine  injury  on  June  11,  2020.  In  review  of  Dr.  Blankenship’s  November \n28, 2020, visit note, the treatment he recommends for the claimant’s lumbar spine is reasonable \nand  necessary  medical  treatment  for  her  compensable  lumbar  spine  injury,  including  treatment \nwith Dr. Cannon and prescription medications.  \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe  her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJanuary  9,  2023,  and  contained  in  a  Pre-hearing  Order  filed  January  10,  2023,  are  hereby \naccepted as fact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  sustained  a \ncompensable injury to her low back on June 11, 2020. \n\n \n-14- \n 3. The claimant has proven by a preponderance of the evidence that she is entitled to the \nmedical treatment recommended for her lower back by Dr. James Blankenship as it is reasonable \nand necessary medical treatment for her compensable lumbar spine injury. \n ORDER \nThe  respondents  shall  be  responsible  for  payment  of  the  reasonable  and  necessary \nmedical  treatment  recommended  by  Dr.  James  Blankenship  for  the  claimant’s  compensable \nlumbar spine injury. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":28288,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H007008 MAGAN OSBURN, Employee CLAIMANT CITY OF FAYETTEVILLE, Employer RESPONDENT MUNICIPAL LEAGUE, Carrier RESPONDENT OPINION FILED MAY 25, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claimant repr...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["neck","shoulder","back","cervical","lumbar","hip","concussion","thoracic"],"fetchedAt":"2026-05-19T23:08:01.796Z"},{"id":"full_commission-H204037-2023-05-24","awccNumber":"H204037","decisionDate":"2023-05-24","decisionYear":2023,"opinionType":"full_commission","claimantName":"Julie Ingle","employerName":"Hazen School District","title":"INGLE VS. HAZEN SCHOOL DISTRICT AWCC# H204037 MAY 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Ingle_Julie_H204037_20230524.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Ingle_Julie_H204037_20230524.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H204037 \n \n \nJULIE R. INGLE,  \nEMPLOYEE  CLAIMANT \n \nHAZEN SCHOOL DISTRICT,   \nEMPLOYER                 RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOC.,  \nCARRIER/TPA RESPONDENT \n \n \nOPINION FILED MAY 24, 2023 \n \nUpon  review  before  the  FULL  COMMISSION,  Little  Rock,  Pulaski  County, \nArkansas. \n \nClaimant represented by the HONORABLE GREGORY R. GILES, Attorney \nat Law, Texarkana, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Reversed. \n \n \nOPINION AND ORDER \n \n            The claimant appeals a decision of the Administrative Law \nJudge filed on December 13, 2022. The Administrative Law Judge found \nthat the claimant has failed to satisfy the burden of proof that the additional \nmedical, specifically the surgery recommended by Dr. Jesse Burks, is \nreasonable and necessary for the treatment of the compensable injury. \nAfter our de novo review of the entire record, the Full Commission finds that \nthe claimant has proven by a preponderance of the evidence that she is \n\nINGLE – H 204037                                                               2 \nentitled to additional medical treatment to her left foot in the form of a \nlimited tarsometatarsal arthrodesis as recommended by Dr. Jesse Burks.\n               I.  HISTORY \n  The claimant, now 51 years old, worked for the respondent-\nemployer as a cafeteria worker.  The claimant sustained a compensable \ninjury to her left foot and ankle in a workplace accident on January 8, 2021.  \nThe claimant testified that the accident happened in the following manner: \nQ Tell us a little bit about what happened \n and how you got hurt. \n \nA We were shorthanded that day and I – \n me and my friend, a co-worker, was going \n outside to get some more breakfast stuff, \n and she had just went down the ramp, \n and I started down – it’s a wood ramp – \n and I had started down it and about \n halfway down, my right leg went straight \n out and my left foot bent back behind me, \n and I slid the rest of the way down the \n ramp. \n  \nQ Did you actually fall to the ground? \n \nA Yes.  I kind of grabbed the rail and I tried \n to catch myself and I laid down on the \n side. \n \n  The claimant was first seen for complaints about her left foot \ninjury at Baptist Health Stuttgart Medical Clinic on January 20, 2021.  An x-\nray taken of the claimant’s left foot was negative.  The claimant was \n\nINGLE – H204037                                                               3 \ndiagnosed with a left foot sprain and instructed to ice her foot, take NSAIDs \nfor pain, and prescribed a walking boot.   \n  The claimant came under the care of Dr. Kevin Goodson for \nher left foot injury starting on January 25, 2021.  Dr. Goodson ordered x-\nrays of the claimant’s left foot.  The x-rays revealed the following: \nNo acute findings: No acute fracture, Incidental \nfindings osteophyte at plantar aspect calc \ntuberosity.  At Congruent ankle mortise. No \nsignificant degenerative joint changes. \n \n  Dr. Goodson diagnosed the claimant with a left foot contusion, \nnoting that the clinical findings were consistent with a “midfoot bony \ncontusion”.  Dr. Goodson braced the claimant with an orthosis and \ninstructed her to wear it twenty-four (24) hours per day until her next follow-\nup visit. \n  The claimant returned to see Dr. Goodson on March 3, 2021.  \nThe medical records from that visit contain the following history: \n... Patient returns today for routine follow-up.  \nStates that she wore the short boot for almost 30 \nminutes before having to take it off due to \nsignificant tightness around the calf.  She has \nbeen wearing the tall boot previously provided \nby her PCP since last being seen.  Patient was \nhaving mild improvement however while at work \non 2/23, she felt a pop with sharp pain along the \ndorsal midfoot.  That sharp pain pain [sic] is now \na constant dull ache.  Denies any numbness or \ntingling. \n \n\nINGLE – H204037                                                               4 \n  X-rays taken during this visit revealed “No acute fracture. No \npenosteal reaction to suggest acute occult fracture of the midfoot.”  Dr. \nGoodson ordered a left foot MRI for further evaluation. \n  The claimant underwent an MRI of her left foot on March 8, \n2021, which showed the following: \nFindings:  Diagnostic quality is mildly degraded \nby patient motion. \n \nBones:  No fracture or marrow signal \nabnormality. \n \nHallux sesamoids:  Normal signal and \npositioning. \n \nJoints:  Midfoot alignment is normal.  Minimal \ndorsal 1\nst\n tarsometatarsal joint marginal \nspurring.  There is a small 1\nst\n MTP joint effusion. \n \nLisfranc ligament complex:  Intact. \n \nMuscles:  Normal bulk and signal. \n \nTendons:  The imaged flexor and extensor \ntendons are normal in course, caliber, and \nsignal. \n \nSoft tissues:  Mild subcutaneous edema in the \ndorsal midfoot/forefoot. \n \nIMPRESSION: \n1. No stress fracture. \n \n2. Minimal dorsal 1\nst\n tarsometatarsal joint \nmarginal spurring. \n \n3. Small 1\nst\n MTP joint effusion. \n \n\nINGLE – H204037                                                               5 \n4. Mild subcutaneous edema in the dorsal \nmidfoot/forefoot. \n \n  The claimant returned to see Dr. Goodson for a follow-up visit \non April 14, 2021.  Dr. Goodson referred the claimant to physical therapy \nwith a recommended frequency of “1-2 times per week for 6 weeks”. \n  After eighteen (18) physical therapy sessions, the claimant \nreturned to see Dr. Goodson on June 16, 2021.  In the records regarding \nthis visit, Dr. Goodson noted the following plan: \nPlan: I had a lengthy discussion with the patient \nin regards to no frank evidence of fracture or soft \ntissue injury.  Due to persistent symptoms, will \ninitiate physical therapy with focus on modalities \nincluding iontophoresis, hot/cold, ultrasound, \netc.  Patient will continue to work at full duty as \noutlined at her last clinic visit.  Patient \nunderstand[s] and is in agreement with plan.  All \nquestions were answered.  She will call for \nfuture follow-up at her request. \n \n  In response to a letter dated August 9, 2021 from a claims \nadjuster with the Arkansas School Boards Association, Dr. Goodson, \nprovided the following opinion: \nAs to the inquiry if patient Julie Ingle’s work-\nrelated injury is the major cause (i.e. greater \nthan 50%) of her left foot pain, I believe that it is \nbased on previous clinical and radiographic \nevaluation over the last 6+ months of care since \ninitial presentation on January 25\nth\n, 2021.  This \nis also based upon review of patient’s outside \nclinical records prior to presentation to my clinic. \n... \n \n\nINGLE – H204037                                                               6 \n  The claimant continued to experience pain and sought \ntreatment from Dr. Jesse Burks on December 2, 2021.  Dr. Burks ordered x-\nrays which showed, “No distinct evidence of fracture.  However there is an \nabnormal separation between the medial and intermediate cuneiforms.” \n  Regarding the x-rays, Dr. Burks noted: \nI have reviewed with the patient that this could \nbe an indication of rupture of Lisfranc’s ligament.  \nEspecially given her symptoms and the type of \ninjury she sustained. On the oblique view there \nare also changes consistent with posttraumatic \narthrosis.  This could have been from \nsubluxation at the second metatarsal \nintermediate cuneiform joint. \n \n  Dr. Burks ordered an MRI of the claimant’s left foot.  The \nresults of the MRI taken on December 14, 2021, showed the following: \nFINDINGS: \n \nBones/Marrow: No evidence for occult fracture. \n \nJoints/DJD: Moderate DJD noted at the second \nthrough the fifth TMT joints.  Mild grade IV \nchondromalacia noted in the tarsal navicular at \nthe talonavicular joint. \n \nTendons: The flexor and extensor tendons are \nnormal in course caliber and signal. \n \nMuscles/Soft Tissues: Moderate edema noted in \nthe ventral aspect of the subcutaneous tissues \nof the midfoot and imaged forefoot. \n \nLisfranc Ligament: Intact. Increased T2 signal \nnoted in the mid and distal aspect of the \nligament consistent with sprain (coronal PD F5 \nimages 6-9). \n\nINGLE – H204037                                                               7 \nIMPRESSION: \nIntact Lisfranc ligament. Increased T2 signal \nnoted in the mid and distal aspect of the \nligament consistent with sprain (coronal PD F5 \nimages 6-9). \n \nMild DJD noted at the second through fifth \ntarsal-metatarsal joints. Mild grade IV \nchondromalacia noted in the tarsal navicular at \nthe talonavicular joint. \n \nNo occult fracture or dislocation identified in the \nforefoot or imaged mid foot. \n \n  In the December 15, 2021 medical record, Dr. Burks noted, \n“Patient called complaining of significant pain in her foot.  Rx’d prescription \nfor Toradol 10 mg every 8 hours.  Because of the severity of her pain and \nthe fact that it occurred greater than a year ago, will most likely need to \npursue tarsometatarsal arthrodesis.” \n  By letter dated January 31, 2022, Dr. Burks offered the \nfollowing information and opinions regarding the claimant’s foot injury: \n1. Her original diagnosis on 2021-02-08 was a \nfoot sprain. When I evaluated her, my working \ndiagnosis has been tarsal-metatarsal \ndislocation. \n2. The pathology on the MRI and x-ray reveals \nincreased separation between the medial and \nintermediate cuneiforms. This is injury related. I \ndo not find any pre-existing condition. \n3. In regards to the foot, I believe that all of her \nsymptoms are directly related to the 2021-01-08 \ninjury.  \n4. She has failed all forms of conservative \ntreatment. Injections have provided temporary \nrelief. It is too far out from the initial injury to \nperform a repair of the soft tissue.  My \n\nINGLE – H204037                                                               8 \nrecommendation is limited tarsometatarsal \narthrodesis of the affected areas. \n5. Current treatment is indicated. This would \ninclude a limited tarsometatarsal arthrodesis. \nThis is a result of the 2021-01-08 injury. \n6. Additional treatment is indicated. Patient is \nnot at MMI. \n7. Patient is not at MMI. \n \n  On May 19, 2022, Dr. Gregory Ardoin conducted an \nIndependent Medical Examination which resulted in the following opinions: \n1. Injury diagnosis left foot contusion. Not pre-\nexisting. \n \n2. Initial MRI pathology MRI left foot dated \n3/8/2021 reveals intact Lisfranc ligament \ncomplex no stress fracture. There was some \nmarginal osteophytes on the dorsal first \ntarsometatarsal joint and some mild \nsubcutaneous edema noted. There was a small \nfirst MTP joint effusion noted but noting of \nsignificance relating to her area of pain.  X-rays \ndid not reveal any Lisfranc ligament widening at \nany point. There were some pre-existing \nosteophytes and early changes of osteoarthritis. \n \n3. Patient has more evidence of degenerative \nerosive arthritis now however the contusion \nlikely did not predispose her to this. This is made \nwithin a reasonable degree of medical certainty \ngiven her diagnosis of erosive osteoarthritis and \nmorbid obesity. \n \n4. Patient has significant tenderness in joints \nother than the second and third tarsometatarsal \njoints on the left foot which should be addressed \nprior to any considered surgery with selective \njoint injections to see where her pain may be \ncoming from since she has arthritis in the TMT \njoints 1 through 5 as well as the talonavicular \njoint. \n\nINGLE – H204037                                                               9 \n \nPatient’s BMI also needs to be corrected prior to \nany considered foot and ankle surgery down to \n40 or below. \n \n5. I cannot state within a reasonable degree of \nmedical certainty that the proposed limited \nmidfoot arthrodesis is a direct result of the \n1/8/2021 work-related injury. \n \n6. There is no further treatment needed for the \ncontusion that she sustained on 1/8/2021 with \n[sic] reasonable degree of medical certainty. \n \n7. The patient is at MMI in regards to the foot \ncontusion she sustained on 1/8/2021. The \npatient has no permanent impairment according \nto the Guides to the Evaluation of Permanent \nImpairment fourth edition [sic].  \n \nThe patient has no work restrictions. \n \n  By letter dated October 25, 2022, Dr. Burks addressed Dr. \nArdoin’s opinions as follows: \nI have had the opportunity to review Ms. Ingel’s \n[sic] Independent medical evaluation performed \nby Dr. Gregory Ardoin. \n \nI continue to feel, in my professional opinion, \nthat the nature of her injury directly contributed \nto the pain in her midfoot.  They [sic] \ndegenerative changes in the tarsometatarsal \nregion of her foot are consistent with her \ndescription of the pain and also the injury. \n \nThis is a progressive condition, that we [sic] will \nat some point require surgical intervention. ... \n \n \n\nINGLE – H204037                                                               10 \n  Prior to her work accident, the claimant was diagnosed with \nand received treatment for left heel plantar fasciitis, erosive osteoarthritis, \nand degenerative arthritis.  X-rays of the claimant’s bilateral feet taken on \nMarch 3, 2020, revealed, “plain film bilateral feet show osteophytosis[;] both \ngreat toes hammertoe formation[;] there is normal metatarsophalangeal \njoints[;] there is significant posterior calcaneal spurring”. \n  A Pre-hearing Order was filed on December 8, 2021.  \n“Claimant contends that she [is] entitled to additional medical treatment \nbeing recommended by Dr. Jesse Burks, specifically, surgery.” \n  “Respondents contend that the recommended surgery is not \nreasonable and necessary for the claimant’s compensable injury.  Both Drs. \nGoodson and Ardoin have indicated only conservative treatment is \nrecommended.  The surgery did not pass precertification.  It is \nRespondents’ position that Claimant has been released as having reached \nmaximum medical improvement and that additional medical treatment in the \nform of surgery is not reasonable and necessary.” \n  The parties agreed to litigate the following issue:  \n(1) Whether Claimant is entitled to additional \nmedical treatment after reaching MMI as \nrecommended by Dr. Burks. \n \n The parties were unable to stipulate to the claimant’s average \nweekly wages.  Prior to the start of the hearing, the parties made arguments \n\nINGLE – H204037                                                               11 \nregarding the calculation of the claimant’s average weekly wages and the \nAdministrative Law Judge added this as a second issue to be litigated. \n After a hearing, an Administrative Law Judge filed an opinion \non December 13, 2022.  The Administrative Law Judge found: \n1.  The Arkansas Workers’ Compensation \nCommission has jurisdiction over this claim. \n \n2.  An employer-employee relationship existed \non January 8, 2021, when the claimant \nsustained a compensable injury to her left foot \nand ankle.  \n \n3.  The claimant earned an average weekly \nwage of $416.72, sufficient to entitle her to a \ntemporary total disability rate of $278.00 and a \npermanent partial disability rate of $209.00. \n \n4.  The claimant was released at maximum \nmedical improvement as of May 19, 2022, with a \nzero percent (0%) permanent partial impairment \nassigned.  The claimant continued to work for \nthe respondent/employer. \n \n5.  The claimant has failed to satisfy the required \nburden of proof that the additional medical, \nspecifically the surgery recommended by Dr. \nJessie [sic] Burks, is reasonable and necessary \nfor the treatment of the compensable injury. \n \n The claimant appeals these findings to the Full Commission. \n II.  ADJUDICATION \n       A.   Average Weekly Wage \n  A.C.A. §11-9-518 reads, in pertinent part, as follows: \n(a)(1) Compensation shall be computed on the \naverage weekly wage earned by the employee \n\nINGLE – H204037                                                               12 \nunder the contract of hire in force at the time of \nthe accident and in no case shall be computed \non less than a full-time workweek in the \nemployment. \n \n  In Magnet Cove School District v. Barnett, 81 Ark. App. 11, 97 \nS.W.3d 909 (2003), the Court of Appeals calculated the average weekly \nwage of a teacher contracted to work 188 days by dividing her total \ncompensation by the stated length of the contract which was thirty-nine \nweeks. \n  In the present matter, the terms of the claimant’s employment \ncontract with the respondent-employer for the 2020-2021 school year were \nfor $11.70 per hour, 8 hours per day for 180 days.  The total contract \namount was “up to $16,848.00” between the dates of July 1, 2020 and June \n30, 2021.           \n  Regarding the dates that she worked that school year, the \nclaimant testified on cross-examination as follows: \nQ We’re showing that the school year, your \n contract that year, that dates you would \n have worked would be between August \n 24\nth\n of ’20 and June 2\nnd\n of ’21.  Do you \n have any reason to dispute that? \n \nA No. \n \nQ Was it your option to receive pay \n throughout the whole year monthly, every \n 12 months? \n \nA That’s their option.  We have no choice. \n \n\nINGLE – H204037                                                               13 \n  The Full Commission finds that the claimant's average weekly \nwage should be calculated by dividing her salary of $16,848 by 36 weeks \n(180 days/5 work days/week). Therefore, the claimant’s average weekly \nwage is $468.00 which translates to a temporary total disability rate of \n$312.00 per week and a permanent partial rate of $234.00 per week. \n  B. Additional Medical Treatment \n       An employer shall promptly provide for an injured employee \nsuch medical treatment as may be reasonably necessary in connection with \nthe injury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). \n  Reasonable and necessary medical services may include \nthose necessary to accurately diagnose the nature and extent of the \ncompensable injury; to reduce or alleviate symptoms resulting from the \ncompensable injury; to maintain the level of healing achieved; or to prevent \nfurther deterioration of the damage produced by the compensable injury.  \nJordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).  A \nclaimant does not have to support a continued need for medical treatment \n\nINGLE – H204037                                                               14 \nwith objective findings.  Chamber Door Industries, Inc. v. Graham, 59 Ark. \nApp. 224, 956 S.W.2d 196 (1997). \n  When medical opinions conflict, the Commission may resolve \nthe conflict based on the record as a whole and reach the result consistent \nwith reason, justice and common sense.  Barksdale Lumber v. McAnally, \n262 Ark. 379, 557 S.W.2d 868 (1977).  A physician’s special qualifications \nand whether a physician rendering an opinion ever actually examined the \nclaimant are factors to consider in determining weight and credibility.  Id. \n  Dr. Burks diagnosed the claimant with tarsal-metatarsal \ndislocation based on MRI results which showed increased separation \nbetween the medial and intermediate cuneiforms.  Because the claimant \nhas failed all forms of conservative treatment, Dr. Burks recommended that \nthe claimant undergo a limited tarsometatarsal arthrodesis.  Dr. Burks \nexplained that previous injections have provided only temporary relief for \nthe claimant.  Additionally, Dr. Burks opined that it is too far out from the \ninitial injury to perform a repair of the soft tissue.  Thus, Dr. Burks’ \nrecommendation is that the claimant undergo a limited tarsometatarsal \narthrodesis of the affected areas. The Full Commission finds that the \nclaimant has proven by a preponderance of the evidence that a limited \ntarsometatarsal arthrodesis as recommended by Dr. Burks is reasonably \nnecessary.   \n\nINGLE – H204037                                                               15 \n  We are not unmindful of the opinions offered by Dr. Gregory \nArdoin in this matter.  The claimant was referred to Dr. Ardoin for an \nIndependent Medical Evaluation.  Dr. Ardoin opined that he cannot state \nwithin a reasonable degree of medical certainty that the proposed limited \nmidfoot arthrodesis is a direct result of the January 8, 2021 work-related \ninjury.  According to Dr. Ardoin, there is no further treatment needed for the \ncontusion that the claimant sustained on January 8, 2021. Dr. Ardoin further \nopined that the claimant has reached maximum medical improvement \nregarding the foot contusion she sustained on January 8, 2021.   \n  Dr. Ardoin’s opinion seems to limit the claimant’s \ncompensable injury to a contusion; however, Dr. Burks’ working diagnosis \nfor the claimant’s injury is tarsal-metatarsal dislocation.   Dr. Ardoin also \nattributes the claimant’s symptoms to arthritis.  However, Dr. Burks opined \nthat “the pathology on the MRI and x-ray reveals increased separation \nbetween the medial and intermediate cuneiforms. This is injury related. I do \nnot find any pre-existing condition.”  Dr. Burks further opined, “[i]n regards \nto the foot, I believe that all of her symptoms are directly related to the \n2021-01-08 injury.”   We assess greater weight to the opinion of Dr. Burks \nwho is the claimant’s treating physician. \n  For the aforementioned reasons, we find that the claimant is \nentitled to a limited tarsometatarsal arthrodesis as recommended by Dr. \nBurks. \n\nINGLE – H204037                                                               16 \n   III. Conclusion     \n   Based on our de novo review of the entire record, the Full \nCommission finds that the claimant has proven by a preponderance of the \nevidence that she is entitled to reasonable and necessary medical \ntreatment provided in relation to her compensable left foot injury, including a \nlimited tarsometatarsal arthrodesis.  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500.00), pursuant to Ark. Code Ann. §11-9-715(b) (Repl. \n2012). \n IT IS SO ORDERED. \n \nSCOTTY DALE DOUTHIT, Chairman \n \n \n      ______________________________________ \nM. SCOTT WILLHITE, Commissioner  \n \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n  I must respectfully dissent from the Majority’s findings that the \nclaimant’s average weekly wage in January 2021 was $468.00 per week \ntranslating to a temporary total disability rate of $312.00 per week.  I must \nfurther dissent from the Majority’s determination that the claimant has \n\nINGLE – H204037                                                               17 \nproven by a preponderance of the evidence that she is entitled to additional \nmedical treatment to her left foot in the form of a limited tarsometatarsal \narthrodesis as recommended by Dr. Jesse Burks.  \n Arkansas Code Annotated section 11-9-518(a)(1) provides in \npertinent part, “Compensation shall be computed on the average weekly \nwage earned by the employee under the contract of hire in force at the time \nof the accident and in no case shall be computed on less than a full-time \nworkweek in the employment.” It is well settled in this State that a school \nemployee’s average weekly wage should be calculated by dividing her \nsalary by the number of weeks she is under contractual obligation to work \nrather than the number of weeks over which she is paid, even when the \nnumber of weeks worked is fewer than fifty-two. Magnet Cove Sch. Dist. v. \nBarnett, 81 Ark. App. 11, 97 S.W.3d 909 (2003).  Here, the claimant \nactually worked from August 24, 2020 to June 2, 2021 for a total of 40.43 \nweeks for a salary of $16,848.00. Dividing the claimant’s salary by the \nweeks worked under the claimant’s contract for hire, the ALJ correctly \ndetermined the claimant’s average weekly wage to be $416.72. \n  With regard to the claimant’s injury itself, what constitutes \nreasonably necessary treatment is a question of fact for the Commission, \nwhich has the duty to use its expertise to determine the soundness of \nmedical evidence and to translate it into findings of fact. Hamilton v. \nGregory Trucking, 90 Ark. App. 248, 205 S.W.3d 181 (2005).  The \n\nINGLE – H204037                                                               18 \nCommission has authority to accept or reject a medical opinion and to \ndetermine its medical soundness and probative force. Oak Grove Lumber \nCo. v. Highfill, 62 Ark. App. 42, 968 S.W.2d 637 (1998).  When the \nCommission weighs medical evidence and the evidence is conflicting, its \nresolution is a question of fact for the Commission. Medic One, LLC v. \nColbert, 2011 Ark. App. 555, 386 S.W.3d 58 (2011). \n On January 28, 2021, Dr. Kevin Goodson diagnosed the claimant \nwith a “midfoot bony contusion” and prescribed an orthotic boot to be used \nby the claimant 24 hours per day. (Cl. Ex. 1, P. 46). Dr. Goodson educated \nthe claimant that they would “continue to treat symptomatically and this will \ncontinue to improve with time.” Id. Dr. Goodson is an orthopedic foot and \nankle specialist.  \nOn March 7, 2021, Dr. Goodson opined that the claimant should \ncontinue with conservative treatment and ordered an MRI for further \nevaluation. (Cl. Ex. 1, P. 53).  Upon review of the claimant’s MRI, Dr. \nGoodson determined that there was “no evidence of occult fracture,” and \n“reiterated that these bony contusions can often take several months to \nresolve.” (Cl. Ex. 1, P. 61).  The claimant’s care plan included wearing a \nrigid soled shoe at all times and taking an NSAID twice daily. Id. On June \n16, 2021, Dr. Goodson “had a lengthy discussion with the patient in regards \nto no frank evidence of fracture or soft tissue injury.” (Cl. Ex. 1, P. 118). \n\nINGLE – H204037                                                               19 \n Dr. Gregory (“Troy”) Ardoin conducted an independent medical \nevaluation (“IME”) of the claimant’s injury and found that the claimant \nsuffered from “mild degenerative changes of the tibiotalar joint with mild \njoint space narrowing.” (Cl. Ex. 1, P. 150).  Dr. Ardoin’s findings included \n“no evidence of any Lisfranc injury or midfoot sprain,” and her left foot \ncontusion had resolved Id. In short, there was “nothing of significance \nrelating to her area of pain.” Id. In his IME, Dr. Ardoin opined that he could \nnot “state within a reasonable degree of medical certainty that the proposed \nlimited midfoot arthrodesis is a direct result of the 1/8/2021 work-related \ninjury.” (Cl. Ex. 1, P. 151).  Dr. Ardoin opined in his May 23, 2022 report that \nthe claimant had reached MMI for her January 8, 2021 injury, sustained no \npermanent impairment, and was under no ongoing work restrictions. Id.  \nLike Dr. Goodson, Dr. Ardoin is an orthopedic foot and ankle specialist.  \n Unlike Dr. Goodson and Dr. Ardoin, Dr. Jesse Burks is a podiatrist. \nDr. Burks first opined that the claimant would require tarsometatarsal \narthrodesis. (Cl. Ex. 1, P. 134). Of the three doctors reviewing the same \nMRI, Dr. Burks was the only doctor who concluded that the claimant would \nneed surgery. Importantly, Dr. Burks is a podiatrist, while Drs. Goodson and \nArdoin are orthopedic foot and ankle specialists and are much better \nqualified to diagnose the claimant’s orthopedic needs than a podiatrist.  I \nafford much greater weight to the matching opinions of the two orthopedic \n\nINGLE – H204037                                                               20 \nfoot and ankle specialists that treated the claimant, Dr. Goodson and Dr. \nArdoin, than that of Dr. Burks, a podiatrist. \nThe majority places weight on the premise that Dr. Burks is the \nclaimant’s treating physician.  It should be pointed out that Dr. Goodson \nwas also the claimant’s treating physician and as her original treating \nphysician is the best person to determine if surgery is reasonable and \nnecessary. In addition, Dr. Goodson was the claimant’s treating physician \nfrom January 2021 until June 2021 and Dr. Burks only saw and examined \nthe claimant three times on December 2, 2021; December 14, 2021; and \nJanuary 19, 2022. \nFor the reasons stated above, I respectfully dissent. \n      \n \n     \nMICHAEL R. MAYTON, Commissioner","textLength":28568,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204037 JULIE R. INGLE, EMPLOYEE CLAIMANT HAZEN SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOC., CARRIER/TPA RESPONDENT OPINION FILED MAY 24, 2023 Upon review before the FULL COMMISSION, Little Rock, Pulaski County, Arkansas. Claimant rep...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["ankle","back","sprain","fracture"],"fetchedAt":"2026-05-19T22:29:46.394Z"},{"id":"alj-H103529-2023-05-24","awccNumber":"H103529","decisionDate":"2023-05-24","decisionYear":2023,"opinionType":"alj","claimantName":"Lance Jeffers","employerName":"United Parcel Service, Inc","title":"JEFFERS VS. UNITED PARCEL SERVICE, INC. AWCC# H103529 MAY 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JEFFERS_LANCE_H103529_20230524.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JEFFERS_LANCE_H103529_20230524.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H103529 \n \nLANCE G. JEFFERS,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nUNITED PARCEL SERVICE, INC., \nEMPLOYER                                                                                                         RESPONDENT \n \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nESIS, INC. \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED MAY 24, 2023 \n \nHearing conducted on Wednesday, May 24, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Lance Jeffers, pro se, of Little Rock, Pulaski County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable David C. Jones, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n     A hearing was conducted on Wednesday, May 24 2023, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark.  Code  Ann.  §  11-9-702(a)(4)  (2023  Lexis \nReplacement) and Commission Rule 099.13 (2023 Lexis Replacement). \n     On  March  7,  2023,  the  respondents  filed  with  the  Commission  a  motion  to  dismiss  without \nprejudice  (MTD)  requesting  that  this  claim  be  dismissed  for  lack  of  prosecution.  Thereafter, \npursuant to the applicable law and in advance of the hearing the claimant was mailed a copy of the \nrespondents’ MTD and the subject hearing notice. The claimant failed and/or refused to respond \nto either the respondents’ MTD or to the Commission’s hearing notice, and he failed and/or refused \nto appear at the subject hearing. \n\nLance G. Jeffers, AWCC No. H103529 \n2 \n \n     The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n     Consistent  with Ark.  Code  Ann.§  11-9-702(a)(4),  as  well  as  our  court  of  appeals’  ruling  in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim at this time. \n     Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having  been  mailed due and legal notice of both the respondents’  (MTD)  and  the \nsubject hearing date, time, and place, the claimant neither inquired concerning or responded \nto the motion in any way, and he did not appear, nor cause anyone to appear on his behalf, \nat  the  subject  hearing.  Therefore,  the  claimant  is  deemed  to  have  waived  his  right  to  a \nhearing on the respondents’ motion to dismiss without prejudice. \n \n3. The claimant has to date failed and/or refused to request a hearing, and he has failed \nand/or refused to take any action(s) to prosecute his claim. \n \n4. Therefore, the  respondents’  motion  to  dismiss  without  prejudice  filed  April  3,  2023, is \nGRANTED; and this claim hereby is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed  by Ark.  Code  Ann.  Section  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n     This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf from refiling the claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n\nLance G. Jeffers, AWCC No. H103529 \n3 \n \n     If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n     IT IS SO ORDERED. \n                                                            \n____________________________                                                   \n                                                                        Mike Pickens \n                                                                          Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp \n \n \n \n\nLance G. Jeffers, AWCC No. H103529 \n4 \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5063,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H103529 LANCE G. JEFFERS, EMPLOYEE CLAIMANT UNITED PARCEL SERVICE, INC., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ ESIS, INC. CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED MAY 24, 2023","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:53.537Z"},{"id":"alj-H206953-2023-05-24","awccNumber":"H206953","decisionDate":"2023-05-24","decisionYear":2023,"opinionType":"alj","claimantName":"Jean Zimmer","employerName":"Dardanelle Regional Hospital","title":"ZIMMER VS. DARDANELLE REGIONAL HOSPITAL AWCC# H206953 MAY 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ZIMMER_JEAN_H206952_20230524.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ZIMMER_JEAN_H206952_20230524.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H206953 \n \n \nJEAN ZIMMER, Employee                                                                              CLAIMANT                         \n \nDARDANELLE REGIONAL HOSPITAL, Employer                                  RESPONDENT                          \n \nARK. HOSP. ASSOC./RISK MGT. RESOURCES, Carrier/TPA              RESPONDENT                         \n \n \n OPINION/ORDER FILED MAY 24, 2023 \n \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   GREGORY   K.   STEWART   in \nRussellville, Pope County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on respondent’s Motion to \nDismiss. \n On  July  15,  2022,  claimant  suffered  an  injury  to  various  body  parts  for  which \nrespondent  paid  medical  benefits.    On  September  27,  2022,  Form AR-C  was  filed  by \nAttorney  York  requesting  compensation  benefits.    No  further  action  was  taken  and on \nMarch 1, 2023, Ms. York’s Motion to Withdraw as Counsel was granted.  Subsequently, \non March 29, 2023, respondent filed this Motion to Dismiss. \n A hearing was scheduled on the respondent’s motion for May 18, 2023.  Notice of \nthe  hearing  was  sent  to  claimant  by  certified  mail  and  was  delivered  on  April  7,  2023.  \nClaimant did not appear at the hearing and has not responded to the respondent’s motion. \n\nZimmer – H206953 \n \n2 \n \n After my  review of  the  respondent’s motion,  the  claimant’s  failure  to  respond \nthereto, and all other matters properly before the Commission, I find that respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2026,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206953 JEAN ZIMMER, Employee CLAIMANT DARDANELLE REGIONAL HOSPITAL, Employer RESPONDENT ARK. HOSP. ASSOC./RISK MGT. RESOURCES, Carrier/TPA RESPONDENT OPINION/ORDER FILED MAY 24, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Russellvill...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:55.594Z"},{"id":"alj-H205005-2023-05-23","awccNumber":"H205005","decisionDate":"2023-05-23","decisionYear":2023,"opinionType":"alj","claimantName":"Simon Mooney","employerName":"Fast Lane Entertainment","title":"MOONEY VS. FAST LANE ENTERTAINMENT AWCC# H205005 MAY 23, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MOONEY_SIMON_H205005_20230523.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MOONEY_SIMON_H205005_20230523.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H205005 \n \nSIMON MOONEY, Employee      CLAIMANT \n \nFAST LANE ENTERTAINMENT, Employer    RESPONDENT \n \nSUMMIT CONSULTING, Carrier/TPA       RESPONDENT \n \n \n OPINION FILED MAY 23, 2023  \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by JASON M. RYBURN, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn  July  13,  2022,  the  claimant  filed  an  AR-C  requesting  various  compensation  benefits \nin which he alleged an injury to his index finger. The claim was accepted as medical only. There \nhas  been  no  request  for  a  hearing  or  additional  activity  by  the  claimant  since  the  filing  of  the \nForm AR-C.  \n On  February  20,  2022,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim be dismissed for lack of prosecution. A hearing was scheduled for May 9, 2023. Notice of \nthat  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on  March  24, \n2023. United States Postal Department records indicate that claimant received and signed for the \nnotice on March 30, 2023. Despite having received notice of the scheduled hearing, the claimant \nfailed to appear at the hearing and has failed to respond to the motion in any form or manner. \n\nMooney – H205005 \n \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby  is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nWhitney Bryant, her fees and expenses within thirty (30) days of receipt of her invoice. \n  \n IT IS SO ORDERED.    \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2448,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H205005 SIMON MOONEY, Employee CLAIMANT FAST LANE ENTERTAINMENT, Employer RESPONDENT SUMMIT CONSULTING, Carrier/TPA RESPONDENT OPINION FILED MAY 23, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claim...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:51.405Z"},{"id":"full_commission-H109299-2023-05-19","awccNumber":"H109299","decisionDate":"2023-05-19","decisionYear":2023,"opinionType":"full_commission","claimantName":"David Wise","employerName":"Midland Industrial Services, LLC","title":"WISE VS. MIDLAND INDUSTRIAL SERVICES, LLC AWCC# H109299 MAY 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Wise_David_H109299_20230519.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Wise_David_H109299_20230519.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H109299  \n \nDAVID J. WISE, \nEMPLOYEE \n \nCLAIMANT \nMIDLAND INDUSTRIAL SERVICES, LLC,  \nEMPLOYER \n \nRESPONDENT \nLIBERTY MUTUAL GROUP, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MAY 19, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE DAVID C. JONES, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nNovember 10, 2022.  The administrative law judge found that the claimant \nfailed to prove he sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission finds that the claimant did not \nprove by a preponderance of the evidence that he sustained a \ncompensable injury.   \nI.  HISTORY \n David James Wise, now age 62, testified that he had been a diabetic \nfor approximately 20 years.  Mr. Wise testified that he controlled his diabetic \n\nWISE - H109299     2\n  \n \n \ncondition with medication.  Dr. Shawn L. Brummett saw the claimant on \nJune 30, 2020, “Patient here to follow up on diabetes.”  Dr. Brummett noted \nthat the claimant’s past medical history included “Diabetes mellitus.”  Dr. \nBrummett assessed “Type 2 diabetes mellitus without complication, without \nlong-term current use of insulin.  Mixed hyperlipidemia.  Essential \nhypertension.”  Dr. Brummett planned treatment with medication and follow-\nup in three months.     \n The record indicates that the claimant became employed with the \nrespondents, Midland Industrial Services, LLC on or about August 18, 2021.  \nThe claimant testified that the respondent-employer hired him to be a \nProject Manager.  The parties stipulated that the employee-employer-carrier \nrelationship existed on August 26, 2021.  The claimant testified on direct \nexamination: \n  Q.  And where were you located on August 26\nth\n of last year? \n  A.  I was in Vernon, Texas.   \n  Q.  And what were you supposed to be doing that day? \nA.  I was told I was sent over there to meet a crew and meet \nthe guys and see what was going on.... \nQ.  So what did you end up doing that day? \nA.  I ended up meeting the crew.  And when I met the crew, \nthe foreman was – that was Tyler Hayden, a good foreman, \nbut he didn’t have the right type crew to do what he was \ndoing.  He had mainly welders.  So I wasn’t supposed to be \non my tools, but I went ahead and helped him and I cut \nbrackets all day for running steam lines on that roof.   \nQ.  So where were you cutting the brackets? \nA.  Up on the roof.  It was like on top of the Wright Bacon \nplant.  It was 40 feet in the air and it was around, you know, \n\nWISE - H109299     3\n  \n \n \n100 or more on that black roof, and I was cutting stainless \nsteel brackets all day.  And it was terrible, hot, but ... \nQ.  And what kind of shoes were you wearing that day? \nA.  I had my most comfortable pair, Justins.  They are leather.  \nAnd when it’s hot like that – these are a low-top.  They are not \na high-top boot.  They are really comfortable and that is what I \nwore that day.  They are real nice steel-toed shoes.   \nQ.  Okay.  And how long were you on the roof that day? \nA.  We was on the roof for 10 hours that day.   \nQ.  And what time do you start? \nA.  I guess around 7:00, a little before.... \nQ.  So toward the end of the day or some time during the day, \ndid you begin having some symptoms in your feet? \nA.  Yeah, around noon, 1 o’clock, it started.  It was hot.  And \nthere was no way to get away from that black roof.  You know, \nmy feet started feeling a little scalded and hot, which it’s like \nwalking on hot pavement.  You know, by the time it was \nquitting time, I knew I scalded my feet.... \nQ.  So what did you do after work that night? \nA.  Well, I went to – actually went to Walmart and got me \nsome ice packs and some Aloe vera for my feet.  And I had \nlotion and stuff.  And I just took a cold shower, you know, \ntended to my feet the best I could.   \nQ.  Did you return to work the next day? \nA.  Yes, I did.   \nQ.  And did you report this problem? \nA.  I told Hayden and a guy they called Kanoe....I told – the \nwhole group, we meet every morning, and I told everybody.  I \nwas like, you know, I scalded and burnt my feet \nyesterday....But I told Tyler that I burnt my feet.  But in all \nfairness to Tyler and me, we didn’t think that it was all that \nbad.... \nQ.  So how long were you supposed to be in that area for \nMidland? \nA.  Well, they just said three or four days and that is just – \nwhen I left, that is what I was told and then I was going to \nGeorgia – I think it was Georgia – to meet a crew that was \nthere and do the same thing, but I never made it to Georgia.   \nQ.  So did you end up leaving the job early? \nA.  I left – yeah.  I think they had a few more days, two or \nthree more days, and I told them, you know, my feet are not \nright and I went ahead and left. \n\nWISE - H109299     4\n  \n \n \nQ.  And who did you tell that to? \nA.  I told it to Tyler.... \nQ.  And when you went home from that job what happened \nthen? \nA.  I went home and I think I took off 13 days and, you know, I \ndoctored my feet.  My wife and my little girl doctored my feet \nand soaked it in Epsom salt and put everything from Aloe vera \nto antibiotics on it to try to take care of it.  I figured, you know, \nit would go away and heal up. \nQ.  And did you go back to work? \nA.  I actually got hired on by Multi-Craft and I told them right \nup front that I burnt my feet and they sent me to a project in \nGeorgia – I mean in Jonesboro.   \n \n The claimant testified with regard to the alleged accidental injury, “I \nscalded my feet.  I knew they were scalded....They just kept getting worse \nand worse.”  The claimant’s wife, Barbara Ann Wise, testified that the \nclaimant reported the alleged injury to her.       \n David Rook testified that he was the Division Manager for the \nrespondent-employer’s Industrial Refrigeration Safety Division.  The \nrespondents’ attorney examined David Rook: \n  Q.  So [the claimant] was hired in mid-August.  Is that correct? \n  A.  Yes.   \nQ.  All right.  And if you can, Mr. Rook, take us through and \ntell us about the orientation process.  Who does that and \nwhen did that take place? \nA.  Well, it’s a typical function that most companies use and \nwhat we do is go over the safety portion.  I am not talking \nabout the HR portion.  The safety portion for us is to cover the \nawareness training of safety-related components of what we \ndo in our business.  Identifying slips, trips and falls, electrical \nsafe work practices, emergency notification procedures, \nconfined space awareness, just stuff that these folks would \nencounter, the employees we have, in the general industry \nand construction environment. \n\nWISE - H109299     5\n  \n \n \nQ.  All right.  And you did the presentation yourself? \nA.  I did.... \nQ.  And for the record, I have got some documents right there, \nif you want to grab that right there.  Those are Respondents’ \nExhibit No. 2.  Are those some of the documents that Mr. \nWise executed?  It would be the next set.   \nA.  That is correct. \nQ.  And did you all go over – and that first page, is that the \ncompany handbook? \nA.  Yes.  This is the signature page saying he received it.... \nQ.  And that is Page 2 of the exhibit, the handbook statement? \nA.  Yes, that is correct. \nQ.  And that document talks how injuries no matter how slight, \nyou are supposed to report it to your supervisor.  Is that \ncorrect? \nA.  That is correct.... \nQ.  So it’s safe to say you told him how and when to report \ninjuries at orientation.  Is that correct? \nA.  Well, that is correct.  On the safety side, if you don’t report \nit immediately, then we don’t have any way to mitigate the risk \nto other team members.... \nQ.  And if Mr. Wise had called in that day in Texas and told \nyou he had been hurt, I take it that – \nA.  That is correct, he could have got pulled off the job, \nbrought back to restricted duty, and we would have gotten him \nthe medical treatment he needed, more than likely.... \nQ.  And in terms of his employment, you heard him testify \ntoday that he left it looks like September 1\nst\n.  Is that correct? \nA.  That is correct, according to the termination paperwork, \nvoluntarily.     \n \n The claimant agreed on cross-examination that he began working for \nanother employer, Multi-Craft Contractors, on September 13, 2021.  The \nclaimant testified that a blister on his foot ruptured while he was performing \nwork for Multi-Craft Contractors.     \n According to the record, the claimant treated at Mercy Hospital \nNorthwest Arkansas on October 3, 2021: \n\nWISE - H109299     6\n  \n \n \nPatient presents with pain and swelling of his great toes.  \nPatient is diabetic.  He states that he was working on a hot \nroofs (sic) with still (sic) toed shoes approximately 1 month \nago and obtained burns to both toes.  He has continued to \nwork daily 10-hour days.  He has been self treating and states \nthat it has improved.  He is home now and with the \nencouragement of his family he comes in today.   \n \n It was noted on October 3, 2021 with regard to the claimant’s right \nfoot, “1.  Skin breakdown with callus and erythema.”  It was noted with \nregard to the claimant’s left foot, “2.  Skin breakdown with moderate \nerythema and mild smell.”   \n An x-ray of the claimant’s left foot was taken on October 3, 2021 with \nthe impression, “Radiographic findings consistent with osteomyelitis of the \n1\nst\n toe distal phalanx base.  1\nst\n toe plantar soft tissue ulcer.”   \n Dr. Tyler Worth Troutman attested to the following on October 3, \n2021: \nAgree w/ the note by Rachel Reynolds.  This is a 60-year-old \nman with a history of diabetes hypertension hyperlipidemia \nand obesity.  Presents from home with day left great toe \nulceration.  About a month ago he was working in Texas on a \nconstruction job on the roof of the building and developed \nburns in bilateral great toes.  He has been managing this at \nhome with soaking his feet in Epson salt and keeping toes \nwrapped and using triple antibiotic ointment.  He has baseline \nneuropathy but still has been having some mild pain on the \nmedial aspect of the great toe.  Denies any fevers or chills.  \nOn presentation inflammatory markers are moderately \nelevated and x-ray of the foot does reveal some bony \ndestruction indicative of osteomyelitis.... \nLarge ulceration on inferolateral aspect of L great toe with \nexposed muscle and purulent drainage. \nMuch smaller laceration on r great toe.   \n\nWISE - H109299     7\n  \n \n \nWe discussed the x-ray findings of osteomyelitis and my \nrecommendation for an amputation of the toe as antibiotics \nalone cannot cure OM.  This came as a shock to him.  He is \nunsure if he would agree to an amputation at this point.  He \nagreed to have orthopedics and infectious disease weigh in \ntomorrow and get an MRI of the foot to better describe the \nextent of the osteo.... \nStates he was working on a roof in 115 degree weather in TX \nabout a month ago.  Developed burns that blistered to both \nbig toes.  Was wearing steel toe boots at the time.  States the \nblisters opened up a few days later.  He has been managing \nhis own wound care at home and soaking in Epsom salt and \napplying Neosporin.  Has still been working 10 hour days on \nhis feet in steel toe boots.  He does keep his feet wrapped.  \nStates the side of his callous on left great toe is the most \npainful and blistered areas only mildly painful.  Denies prior \noccurrence.  Has neuropathy.... \n \n An MRI of the claimant’s left foot was taken on October 4, 2021 with \nthe following impression: \n1.  Osteomyelitis of the 1\nst\n toe distal phalanx.  Soft tissue \nulceration of the 1\nst\n toe.   \n2.  Probable reactive bone marrow edema and/or osteitis at \nthe 1\nst\n toe middle phalanx head.  Probable reactive \nmarrow edema the 1\nst\n metatarsal neck. \n3.  Foot soft tissue edema.   \n \n The claimant testified that he reported the alleged injury to David \nRook on or about October 4, 2021.   \n The assessment and plan of Dr. Michael Andrew Ebers on or about \nOctober 5, 2021 included “Diabetic foot ulcer complicated by left first toe \nosteomyelitis:  Obtain blood cultures.  Appreciate orthopedic surgery \nassessment.\"  The claimant received extended treatment visits at Mercy \nmedical center related to the diabetic condition in his left lower extremity.     \n\nWISE - H109299     8\n  \n \n \n The respondents’ attorney examined David Rook: \nQ.  And you didn’t hear anything about this until October it \nsounds like? \n  A.  October the 6\nth\n I think it was, the first of October.   \nQ.  All right.  And as far as you are aware, did he tell anyone \nat Midland about his foot injured before October?   \nA.  Not that I know of, no.... \nQ.  And if somebody called the company and reported an \ninjury, would they have referred it to you at that point? \nA.  It would go straight to me.  I get all of them.... \nQ.  Once again, the first time you learned about it was roughly \nOctober 6\nth\n after he had been to the hospital? \nA.  That is correct.   \n \n The record includes an “Appendix D – Accident Investigation \nReport.”  It was written on the Accident Investigation Report that the Date of \nAccident/Injury/Illness was August 26, 2021, “Vernon, Tx Job.”  The Date \nInvestigation Began was October 6, 2021.  It was handwritten on the \nAccident Investigation Report, “Team Member (TM) reported on 10/3/21 \nthat he worked on the roof in Vernon, Tx.  While there it was hot and he \nburned his feet through his boots.  T/M continued to work without any \ntreatment.”  The Part(s) of Body Affected were “Both feet – Big toe on each \nfoot blistered.”  It was written on the Report, “No medical treatment was \nadministered when aledged (sic) injury occured (sic).  T/M stated he added \ncreams & salts to his feet for self treatment.”  The Accident Investigation \nReport identified a witness as Tyler Haden:  “Tyler stated that T/M told him \nit was hot working on the roof.  Tyler agreed, but at no time did the T/M \nstate he was injured or had any issues with his feet.”  A second witness \n\nWISE - H109299     9\n  \n \n \nidentified was Kanoe O’Neil, and it was written, “Kanoe stated he had no \nknowledge of David Wise having any foot issues....Safety manager took \nstatement over phone.”   \n On October 13, 2021, the claimant underwent a debridement \nperformed for “Wound #1 Left Toe Great.”  Dr. Douglas Friesen reported on \nOctober 13, 2021, “60 y/o diabetic male with a hx of foot deformity and \nosteo of the L gr toe.  He was in the hosp and had an art duplex that \nrevealed monophasic flow.  He has no pulse on the L side.  He had an A1C \nthat was elevated.  He chews and is trying to stop.  He is getting the bs \nunder control.  The x-ray and MRI revealed osteo.  Script for AFO given, \ndiscussed hbot and how that works.  Script for diabetic shoes and custom \ninsoles given.”   \n The claimant continued to follow up with medical providers for his \ndiabetic condition and abnormalities in his lower extremities.  The claimant \nreturned to Dr. Brummett on April 27, 2022: \nPatient burned his big toe on left foot a few months ago, he \nhas recently went back to work and now the skin is peeling off \nand bleeding.   \nWould like to go back to wound care if possible.   \nPatient here for follow up on his wound on his left great toe.   \nThe wound improved after wound care treatments earlier this \nyear.   \nAbout 1 week ago a callus over the area of the previous \nwound came of (sic) and now he has an open wound there.  It \nbleeds some and is painful if he is on his feet.... \nSkin:  1.5 x 2cm ulcer on inferior-medial aspect of the left \ngreat toe.  No surrounding erythema or swelling.   \n\nWISE - H109299     10\n  \n \n \n \n Dr. Brummett assessed “Type 2 diabetes mellitus with foot ulcer, \nwithout long-term current use of insulin.  Diabetic ulcer of left great \ntoe....Ulcer – Referral back to wound care.  Today it does not appear \ninfected.  Encouraged him to keep the wound covered with a dressing like \nhe has been until he sees wound care.  He will also watch for signs of \ninfection and follow up if this happens.”   \n A pre-hearing order was filed on May 19, 2022.  According to the text \nof the pre-hearing order, the claimant contended that he was “entitled to \nmedical treatment for his injury and to repayment for medical expenses he \nhas incurred.  He contends he is entitled to temporary total disability \nbenefits from October 3, 2021, to the end of January 2022.  The claimant \nreserves all other issues.”   \n The parties stipulated that the respondents “have controverted the \nclaim in its entirety.”  The respondents contended, “1.  The respondents \ncontend that the claimant did not sustain specific incident injuries to his \ngreat toes during the course and in the scope of his employment on August \n26, 2021.  In that regard, the respondents contend that the claimant had no \nobjective medical findings to support compensability until what appears to \nbe more than a month later and that his condition is a result of his diabetic \npreexisting conditions and not a result of the work-related activities for the \nrespondent/employer herein.  2.  The respondents contend that the \n\nWISE - H109299     11\n  \n \n \nclaimant’s subsequent work activities after his resignation from the \nrespondent/employer herein and his failure to properly maintain his diabetic \nmedical condition led to his ultimate need for treatment and surgical \nintervention, and not the alleged exposure to heat with the \nrespondent/employer herein.  Furthermore, the respondents contend that \nthe claimant’s subsequent activities would be considered an independent \nintervening event, and his failure to maintain control of his diabetic condition \nand preexisting conditions led to his ultimate need for surgery.  3.  The \nrespondents contend that the claimant’s temporary total disability benefits \nwould be limited to what appears to be on or about October 6, 2021 through \nJanuary 2022 (the parties are trying to narrow down the dates for potential \ntemporary total disability benefits).  4.  The respondents contend that the \nclaimant would not be entitled to any type of permanent partial disability \nratings as the ‘major cause’ of any impairment would be a result of his \npreexisting condition, not a result of the work-related injury alleged herein.  \n5.  The respondents contend that they would be entitled to an offset for any \nunemployment benefits paid to the claimant should the claimant have \napplied for and received said benefits.  6.  The respondents would reserve \nthe right to amend and supplement their contentions after the discovery as \nbeen completed.”   \n The parties agreed to litigate the following issues: \n\nWISE - H109299     12\n  \n \n \n1.  Compensability. \n2.  If compensable, whether claimant is entitled to temporary \ntotal disability benefits and medical benefits. \n3.  Compensation rate. \n4.  Attorney fee. \n5.  Respondents raise lack of notice as a defense.   \n6.  Whether respondents are entitled to appropriate setoffs, \nshould benefits be awarded.   \n \n After a hearing, an administrative law judge filed an opinion on \nNovember 10, 2022 and found that the claimant did not prove he sustained \na compensable injury.  The administrative law judge therefore denied and \ndismissed the claim.  The claimant appeals to the Full Commission. \nII.  ADJUDICATION \n Act 796 of 1993, as codified at Ark. Code Ann. §11-9-102(4)(Repl. \n2012), provides, in pertinent part: \n(A)  “Compensable injury” means: \n(i) An accidental injury causing internal or external \nphysical harm to the body ... arising out of and in the \ncourse of employment and which requires medical \nservices or results in disability or death.  An injury is \n“accidental” only if it is caused by a specific incident \nand is identifiable by time and place of occurrence[.]   \n \n A compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012).   \n\nWISE - H109299     13\n  \n \n \n The employee has the burden of proving by a preponderance of the \nevidence that he sustained a compensable injury.  Ark. Code Ann. §11-9-\n102(4)(E)(i)(Repl. 2012).  Preponderance of the evidence means the \nevidence having greater weight or convincing force.  Metropolitan Nat’l \nBank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).  When \ndeciding any issue, the Commission shall determine, on the basis of the \nrecord as a whole, whether the party having the burden of proof on the \nissue has established it by a preponderance of the evidence.  Ark. Code \nAnn. §11-9-704(c)(2)(Repl. 2012).  In workers’ compensation cases, the \nCommission functions as the trier of fact.  Blevins v. Safeway Stores, 25 \nArk. App. 297, 757 S.W.2d 569 (1988).  The Commission is not required to \nbelieve the testimony of the claimant or any other witness but may accept \nand translate into findings of fact only those portions of the testimony it \ndeems worthy of belief.  Farmers Co-op v. Biles, 77 Ark. App. 1, 69 S.W.3d \n899 (2002).   \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to prove by a preponderance of the evidence that he \nsuffered a compensable injury on August 26, 2021.”  The Full Commission \nhas the duty to adjudicate the case de novo and we are not bound by the \ncharacterization of evidence adopted by an administrative law judge.  Tyson \nFoods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).  An \n\nWISE - H109299     14\n  \n \n \nadministrative law judge’s findings with regard to credibility are not binding \non the Full Commission.  Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 \nS.W.2d 402 (1983).   \n In the present matter, the Full Commission finds that the claimant did \nnot prove by a preponderance of the evidence that he sustained a \ncompensable injury on August 26, 2021.  As we have discussed, the \nclaimant testified that he has suffered from a pre-existing diabetic condition \nfor approximately 20 years.  Dr. Brummett diagnosed “Diabetes mellitus” on \nJune 30, 2020.  The claimant became employed with the respondents, \nMidland Industrial Services, LLC on or about August 18, 2021.  The parties \nstipulated that the employment relationship existed on August 26, 2021.  \nThe claimant testified that he walked on the surface of a roof that day, and \nthat the surface of the roof was extremely hot as a result of the \ntemperature.  The claimant testified that he was wearing low-top, steel-toed \nboots.  The claimant testified that he eventually “scalded” both feet while \nworking on the roof.  The claimant testified that he reported the alleged \ninjury to at least two co-workers. \n There was no evidence of record from August 26, 2021 which \ncorroborated the claimant’s testimony.  The Full Commission finds that the \nclaimant was not a credible witness with regard to the claimant’s testimony \nthat he scalded his feet on August 26, 2021 while performing employment \n\nWISE - H109299     15\n  \n \n \nservices.  We find that David Rook, a Division Manager for the respondents, \nwas a credible witness based on the record.  David Rook credibly testified \nthat the claimant did not report a workplace injury to him or any other \nindividual on August 26, 2021.  Mr. Rook testified that the claimant \nvoluntarily resigned his employment with the respondents effective \nSeptember 1, 2021.  The claimant agreed that he began working for \nanother employer on September 13, 2021.   \n The claimant did not seek medical treatment for the alleged August \n26, 2021 injury until October 3, 2021.  The claimant informed the medical \nproviders at that time that he had had sustained burns to his great toes \n\"approximately 1 month ago.\"  The claimant’s reporting on October 3, 2021 \nwould place the injury as occurring approximately September 3, 2021 after \nthe claimant had already resigned his employment with the respondents.  \nThe Full Commission recognizes that the claimant is not required to identify \nthe precise time and numerical date upon which the alleged “scalding” \noccurred.  Edens v. Superior Marble & Glass, 346 Ark. 487, 58 S.W.3d 369 \n(2001).  Nevertheless, in the present matter, the claimant’s lengthy delay in \nseeking medical treatment and his failure to timely report the alleged \nscalding injury is a detriment to the claimant’s credibility.  The weight of the \nevidence does not corroborate the claimant’s testimony that he scalded his \nfeet or great toes on August 26, 2021.   The Full Commission reiterates our \n\nWISE - H109299     16\n  \n \n \nfinding that David Rook was a credible witness.  Mr. Rook credibly testified \nthat the claimant did not timely report an injury to him.  Mr. Rook also \ntestified that there were no corroborating eyewitnesses to the alleged \nAugust 26, 2021 injury.   \n   The Full Commission finds that the claimant did not prove by a \npreponderance of the evidence that he sustained a compensable injury in \naccordance with Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012).  The \nclaimant did not prove that he sustained an accidental injury causing \nphysical harm to the body.  The claimant did not prove that he sustained an \ninjury which arose out of and in the course of employment, required medical \nservices, or resulted in disability.  The claimant did not prove that he \nsustained an injury as the result of a specific incident identifiable by time \nand place of occurrence on August 26, 2021.  Additionally, the claimant did \nnot establish an injury by medical evidence supported by objective findings.  \nThe evidence does not demonstrate that the abnormalities in the claimant’s \nlower extremities shown on and after October 3, 2021 were causally \nconnected to a scalding injury which allegedly occurred on August 26, \n2021.  See Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d \n5 (1998).   \n After reviewing the entire record de novo, therefore, the Full \nCommission finds that the claimant did not prove by a preponderance of the \n\nWISE - H109299     17\n  \n \n \nevidence that he sustained a compensable injury on August 26, 2021.  This \nclaim is respectfully denied and dismissed. \n IT IS SO ORDERED.       \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    O. MILTON FINE II, Special Commissioner \n \n \nCommissioner Willhite dissents. \n \n \nDISSENTING OPINION \n After my de novo review of the record in this claim, I dissent from the \nmajority opinion finding that the claimant did not prove by a preponderance \nof the evidence that he sustained a compensable injury. \n For the claimant to establish a compensable injury as a result of a \nspecific incident, the following requirements of Ark. Code Ann. §11-9-102 \n(4)(A)(i) (Repl. 2012), must be established: (1) proof by a preponderance of \nthe evidence of an injury arising out of and in the course of employment; (2) \nproof by a preponderance of the evidence that the injury caused internal or \nexternal physical harm to the body which required medical services or \nresulted in disability or death; (3) medical evidence supported by objective \nfindings, as defined in Ark. Code Ann. §11-9-102 (4)(D), establishing the \ninjury; and (4) proof by a preponderance of the evidence that the injury was \n\nWISE - H109299     18\n  \n \n \ncaused by a specific incident and is identifiable by time and place of \noccurrence.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 \nS.W.2d 876 (1997).  \n It is undisputed that the claimant suffered from diabetes prior to his \nworkplace accident.  However, a pre-existing disease or infirmity does not \ndisqualify a claim if the employment aggravated, accelerated, or combined \nwith the disease or infirmity to produce the disability for which \ncompensation is sought.  See, Nashville Livestock Commission v. Cox, 302 \nArk. 69, 787 S.W.2d 664 (1990); Conway Convalescent Center v. \nMurphree, 266 Ark. 985, 585 S.W.2d 462 (Ark. App. 1979); St. Vincent \nMedical Center v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).  The \nemployer takes the employee as he finds him.  Murphree, supra.  In such \ncases, the test is not whether the injury causes the condition, but rather the \ntest is whether the injury aggravates, accelerates, or combines with the \ncondition.   \n The claimant’s injuries meet the requirements for compensability.  \nThe claimant provided credible testimony that he was involved in a \nworkplace incident on August 26, 2021.  The claimant testified that he was \nworking on a rooftop in 100-degree weather cutting brackets for \napproximately ten hours.  The claimant testified further that he was wearing \na pair of leather steel-toe shoes while performing these duties.  According \n\nWISE - H109299     19\n  \n \n \nto the claimant, by the end of the workday, he knew he had scalded his feet \nso he went to Walmart and bought some ice packs and Aloe vera for his \nfeet.  The next day the claimant reported to the foreman, Tyler Hayden, that \nhe “scalded and burnt” his feet the previous day at work.   \n The claimant took time off from work for thirteen (13) days and \n“doctored [his] feet”.  When the claimant returned to work (working for Multi-\nCraft), he worked approximately ten (10) to twelve (12) days before the sore \non his foot burst. \n There were objective findings of the injury in the form of a diabetic \nulcer of the left great toe and “osteomyelitis of the first toe distal phalanx \nbase” as noted in the October 3, 2021, medical records from Mercy Hospital \nNorthwest Arkansas.  In addition, this injury required medical treatment in \nthe form of prescription medications and debridement of the left great toe.    \n I recognize that in general foot ulcers are common for diabetic \npatients; however, the claimant testified that he had not had trouble with his \nfeet prior to his workplace accident.  There is nothing in the record to \ncontradict the claimant’s testimony regarding whether he had trouble with \nhis feet in the past; therefore, I credit the claimant’s testimony as being \ncredible. \n Despite having diabetes prior to the work accident, the claimant was \nable to perform his job duties without limitations or restrictions.  It was not \n\nWISE - H109299     20\n  \n \n \nuntil after the workplace incident that the claimant developed a diabetic \nulcer and osteomyelitis which ultimately resulted in the above-referenced \ntreatments to his left great toe.   \n Therefore, based on the aforementioned, I find that the claimant has \nestablished by a preponderance of the evidence that he sustained a \ncompensable left foot injury.  In light of this finding, this matter should be \nremanded to the ALJ for a finding regarding the claimant’s entitlement to \nmedical and temporary total disability benefits. \n For the foregoing reasons, I dissent from the majority opinion. \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":31323,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H109299 DAVID J. WISE, EMPLOYEE CLAIMANT MIDLAND INDUSTRIAL SERVICES, LLC, EMPLOYER RESPONDENT LIBERTY MUTUAL GROUP, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 19, 2023","outcome":"remanded","outcomeKeywords":["remanded:1"],"injuryKeywords":["back","neck"],"fetchedAt":"2026-05-19T22:29:46.380Z"},{"id":"alj-H204316-2023-05-19","awccNumber":"H204316","decisionDate":"2023-05-19","decisionYear":2023,"opinionType":"alj","claimantName":"Ronald Parr","employerName":"Humane Society Of Pulaski Co","title":"PARR VS. HUMANE SOCIETY OF PULASKI CO. AWCC# H204316 MAY 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PARR_RONALD_H204316_20230519.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PARR_RONALD_H204316_20230519.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H204316 \n \nRONALD A. PARR, EMPLOYEE  CLAIMANT \n \nHUMANE SOCIETY OF PULASKI CO., \nEMPLOYER                                                                                                RESPONDENT  \n \nTECHNOLOGY INSURANCE COMPANY, \nINSURANCE CARRIER                                   RESPONDENT  \n \nAMTRUST NORTH AMERICA, \nTHIRD PARTY ADMINISTRATOR                                   RESPONDENT  \n \n \n \nOPINION FILED MAY 19, 2023 \n \nHearing before Administrative Law Judge Steven Porch on May 18, 2023 in Little Rock, \nPulaski County, Arkansas. \n \nClaimant, pro se. \n \nThe Respondents were represented by Mr. William C. Frye, Attorney at Law, North Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on May 18, 2023, in Little Rock, \nArkansas.  Claimant, who is pro se, did not appear for the hearing.  Respondents were \nrepresented at the hearing by Mr. William C. Frye, Attorney at Law, of North Little Rock, \nArkansas.      In   addition   to   Respondents’   argument,   the   record   consists   of   the \nCommission’s file–which has been incorporated herein in its entirety by reference. \n The evidence reflects that Claimant’s injury occurred on May 17, 2022, where he \npurportedly injured his whole body.  This incident allegedly occurred when Claimant was \ncleaning a septic tank during the course and scope of his employment. Claimant called \n\nPARR – H204316 \n \n \n2 \nRespondents’ counsel, William C. Frye, on July 8, 2022, stating that he wants to pursue \nhis  claim.  Since  then, this  case  has  been  inactive  until  Respondents  filed  a  Motion  to \nDismiss  due  to  the  lack  of  prosecution.  A  hearing  was  held  on May  18,  2023,  in  Little \nRock,  Arkansas  on  the  Motion  to  Dismiss.  As  previously  stated,  the  Claimant  did  not \nappear for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission,  I  hereby  make  the  following  findings  of  fact  and  conclusions  of  law  in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \n\nPARR – H204316 \n \n \n3 \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven  reasonable  notice,  at  the  addresses  provided  by  each  party,  for  the Motion  to \nDismiss hearing under Rule 13. I further find that Claimant has abridged this rule. Thus I \nfind Respondents’ Motion to Dismiss should be granted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4860,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204316 RONALD A. PARR, EMPLOYEE CLAIMANT HUMANE SOCIETY OF PULASKI CO., EMPLOYER RESPONDENT TECHNOLOGY INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT AMTRUST NORTH AMERICA, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MAY 19, 2023 Hearing before Adm...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:49.291Z"},{"id":"alj-H205900-2023-05-18","awccNumber":"H205900","decisionDate":"2023-05-18","decisionYear":2023,"opinionType":"alj","claimantName":"Jasonl Marshall","employerName":"Tyson Poultry Inc","title":"MARSHALL VS. TYSON POULTRY INC. AWCC# H205900 MAY 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MARSHALL_JASONL_H205900_20230518.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MARSHALL_JASONL_H205900_20230518.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H205900 \n \nJASON L. MARSHALL, EMPLOYEE   CLAIMANT \n \nTYSON POULTRY INC., SELF-INSURED EMPLOYER RESPONDENT \n \n \nOPINION/ORDER FILED MAY 18, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is represented by LAURA BETH YORK, Attorney, Little Rock, Arkansas. \n \nRespondents are represented by LAUREN SCROGGINS, Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  November 3, 2022, claimant filed Form AR-C, alleging a compensable injury on May 16, \n2022.   Claimant  was represented at the time by Laura Beth York, who remains his attorney of record.     \nOn March 2, 2023, respondent filed a Motion to Dismiss, alleging that it had been more than \nsix months since claimant filed his Form AR-C with the Commission, but he had not made a request \nfor a hearing in that time. Claimant’s attorney advised the Commission she had no objection to the \nMotion to Dismiss and would not attend the hearing.  A hearing on respondent’s Motion to Dismiss \nwas scheduled for May 9, 2023.  Notice of the scheduled hearing was sent to claimant by certified mail \nat the last known address in the Commission’s file.  The notice was delivered to claimant on March \n11,  2023. Claimant did not respond to Respondent’s motion and did not appear in person at the \nhearing on May 9, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the Respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the Respondent’s motion, as well as all other matters \n\nMarshall-205900 \n \n2 \n \nproperly before the Commission, I find that Respondent’s Motion to Dismiss this claim should be \nand hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2144,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205900 JASON L. MARSHALL, EMPLOYEE CLAIMANT TYSON POULTRY INC., SELF-INSURED EMPLOYER RESPONDENT OPINION/ORDER FILED MAY 18, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington County, Arkansas. Claimant is represented by...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:45.161Z"},{"id":"alj-H206910-2023-05-18","awccNumber":"H206910","decisionDate":"2023-05-18","decisionYear":2023,"opinionType":"alj","claimantName":"Amanda Rochelle-Lewis","employerName":"Tyson Poultry Inc","title":"ROCHELLE-LEWIS VS. TYSON POULTRY INC. AWCC# H206910 MAY 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ROCHELLE-LEWIS_AMANDA_H206910_20230518.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROCHELLE-LEWIS_AMANDA_H206910_20230518.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H206910 \n \n \nAMANDA J. ROCHELLE-LEWIS, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nTYSON POULTRY, INC.,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n                                                                                                                                                                                             \nTYNET CORPORATION, \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED MAY 18, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nThe claimant, pro se, did not appear for the hearing.         \n \nRespondents represented by Mr. J. Matthew Mauldin, Attorney at Law, Little Rock, Arkansas. \n \n                                                         Statement of the Case      \n \n A hearing was conducted on May 17, 2023, in the present matter pursuant Ark. Code Ann. \n§11-9-702 and Arkansas Workers’ Compensation Commission Rule 099.13 for the purpose of a \ndetermination of whether the above-captioned claim should be dismissed for want of prosecution.  \nAppropriate Notice of this hearing was tried on all parties to their last known address, in \nthe manner specified by law.   \nNo testimony was taken at the hearing.  \nThe record consists of the transcript of the May 17, 2023, hearing and the documents held \ntherein.  The rest of the Commission’s file has also been made a part of the record.  It is hereby \nincorporated here by reference, without objection.  The Respondents submitted evidence entailing \none exhibit, consisting of three numbered pages.  It has been marked as Respondents’ Exhibit 1.     \n \n\nRochelle-Lewis-H206910 \n \n2 \n \nBackground \n The following procedural history applies to this claim:  \nParticularly,  on  September  26,  2022,  the  Claimant  filed  a  Form  AR-C  with  this \nCommission alleging that she sustained compensable injuries on March 10, 2022, while working \nfor the respondent-employer.  She alleged compensable injuries to her right hand and left elbow \n(tennis elbow) due to repetitive-motion type employment duties.  The Claimant requested initial \nbenefits in the form of medical expenses and loss wages.       \n  The respondent-insurance-carrier filed a Form AR-2 with the Commission on September \n29,  2022,  controverting  the  claim.    The  carrier  wrote  down  on  this  form  that  they  were \ncontroverting the claim because: “She [the Claimant] was not employed long enough to sustain a \ntraumatic injury from rapid repetitive motion.” \nSince the time of filing the Form AR-C, the Claimant has not requested a hearing or taken \nany action whatsoever to prosecute her claim for workers’ compensation benefits.      \n Subsequently, on or about March 29, 2023, the Respondents filed with the Commission a \nletter-request to dismiss this claim due to a lack of prosecution.  \nOn  that  same  date,  the  Commission  sent  a  notice  to  the Claimant’s  last  known  address \nlisted in the Commission’s file to provide her with notice of the Respondents’ motion to have her \nclaim dismissed.  Per this correspondence, the Claimant was given a deadline of twenty days for \nfiling a written response to the Respondents’ motion.  Said notice was mailed to the Claimant by \nboth certified and first-class mail via the United States Postal Service. \nInformation  received  by  the  Commission  from  the  Postal  Service  shows  that  the  above-\nreferenced notice was delivered to the Claimant’s last known address listed in the file and left at \n\nRochelle-Lewis-H206910 \n \n3 \n \nher  home  with  an  individual  on  April  3,  2023.    However,  the  signature  of  the  recipient  to  take \ndelivery of the notice letter is indecipherable.    \n Yet, there was no response from the Claimant. \nTherefore, per a hearing notice dated April 20, 2023, the Commission notified the parties \nthat a hearing was scheduled to address the Respondents’ motion to dismiss this claim for want of \nprosecution.    Said  hearing  was  set  for  May  17,  2023, at  2:30  p.m.,  at  the  Arkansas Workers’ \nCompensation Commission, in Little Rock, Arkansas.  The notice of hearing was sent to the parties \nin a comparable manner as described above.    \n A  hearing  was  in  fact  conducted  on  the  Respondents’  motion  to  dismiss  for  want  of \nprosecution.    The  Claimant  did  not  appear  at  the  hearing.    To  date,  there  has  been  no  response \nwhatsoever  from  the  Claimant.    However,  the  Respondents  appeared  through  their  attorney.  \nCounsel noted that the Claimant has not requested a hearing since the filing of the Form AR-C on \nSeptember  26,  2022,  and  she  has  not  taken  any  action  on  her  claim.    Counsel  argued  that  the \nClaimant  did  not  appear  at  the  hearing,  and  she  has  not  responded  to  the  notices  of  this \nCommission.  Counsel further argued that the Claimant has not objected to the motion to dismiss.  \nBased  on  the  foregoing  arguments,  counsel  asked  that  this  claim  be  dismissed  for  a  lack  of \nprosecution, without prejudice, per Ark. Code Ann. §11-9-702 and Commission Rule 099.13. \nDiscussion \nThe record before me shows that a request for a hearing has not been filed by or on behalf \nof  the  Claimant  since  the  time  of  the  claim  in  September  2022,  which  occurred  more  than  six \nmonths ago.  Of significance, the Claimant did not appear at the dismissal hearing, and she has not \nobjected to her claim being dismissed or responded to the notices of this Commission.  \n\nRochelle-Lewis-H206910 \n \n4 \n \nHence,  the  preponderance  of  the  evidence  shows  that  the  Claimant  has  abandoned  her \nclaim  for  workers’  compensation benefits,  considering  she  has  not  objected  to  her  claim  being \ndismissed.  More importantly, the Claimant has failed to make a bona fide request for a hearing \nsince the filing of the claim more than six months ago.    \nTherefore,  I  find  that  the  evidence  before  me  proves  that  the Respondents’  motion  to \ndismiss  this  claim  is  called  for  under  Ark.  Code  Ann.  §11-9-702  and Arkansas  Workers’ \nCompensation Commission Rule 099.13.  Said dismissal is without prejudice, to the refiling of it \nwithin the limitation period specified by law. \n                               FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn the basis of the record, I hereby make the following findings of fact and conclusions of \nlaw in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  authority  of  this \nclaim.  \n \n2.         The parties were given reasonable notice of the motion and dismissal  \n                        hearing. \n   \n3. The evidence preponderates that the Claimant has failed to prosecute this    \n            claim under the provisions of Ark Code Ann. §11-9-702 and Commission  \n            Rule 099.13. \n \n4. The Respondents’ motion to dismiss is well founded. \n \n5.  This claim is hereby respectfully dismissed, without prejudice, under Ark.  \n            Code Ann. §11-9-702 and Rule 099.13, to the refiling of it within the period \nspecified by law.   \nORDER \n \n Following the findings of fact and conclusions of law set forth above, this claim is hereby \nrespectfully dismissed under the provisions of Ark. Code Ann. §11-9-702 and Arkansas Workers’ \n\nRochelle-Lewis-H206910 \n \n5 \n \nCompensation  Commission  Rule  099.13,  without  prejudice,  to  the  refiling  of it  within  the \nlimitation period specified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":8003,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H206910 AMANDA J. ROCHELLE-LEWIS, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYNET CORPORATION, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MAY 18, 2023 Hearing held before Administrative Law Judge Chandra L. Black, in Little Rock, P...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":["repetitive"],"fetchedAt":"2026-05-19T23:07:47.223Z"},{"id":"alj-H008499-2023-05-17","awccNumber":"H008499","decisionDate":"2023-05-17","decisionYear":2023,"opinionType":"alj","claimantName":"Rhetta Burrell","employerName":"Mcdonald’s Store","title":"BURRELL VS. McDONALD’S STORE AWCC# H008499 MAY 17, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Burrell_Rhetta_H008499_20230517.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Burrell_Rhetta_H008499_20230517.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H008499 \n \n \nRHETTA BURRELL, EMPLOYEE CLAIMANT \n \nMcDONALD’S STORE, EMPLOYER RESPONDENT \n \nSENTRY CASUALTY CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MAY 17, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on May  10, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Jarrod S. Parrish, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the Commission  on  Respondents’ Motion  to \nDismiss.    A  hearing  on  the  motion  was  conducted  on May  10,  2023,  in  Little \nRock,  Arkansas.   Claimant,  who  is pro  se,  failed  to  appear.  Respondents  were \nrepresented  at  the  hearing  by  Mr.  Jarrod  S.  Parrish,  Attorney  at  Law,  of Little \nRock,  Arkansas.    The  record  consists  of  (1)  Respondents’  Exhibit  1—forms, \npleadings,  and  correspondence  related  to  the  matter—consisting  of  one  index \npage  and  seven  numbered  pages  thereafter;  and  (2) the  Commission’s  file, \nwhich,   without   objection,   has   been   incorporated   herein   in   its   entirety   by \nreference. \n The evidence reflects that  per the First Report of Injury or  Illness filed on \nOctober  30, 2020,  Claimant purportedly  sustained  injuries  to  several  body parts \n\nBURRELL – H008499 \n \n2 \nat  work on September  16,  2020,  when  a  door  fell  and  struck  her.   According  to \nthe Form AR-2 that was filed on December 11, 2020, Respondents controverted \nthe matter in its entirety.  The file does not reflect that Claimant filed a Form AR-\nC. \n She wrote the Commission on January 20, 2021:  “I need a hearing!”  The \nmatter was at that point turned over to the Legal Advisor Division.  But as a result \nof  Claimant’s  failure  to  complete  a  Legal  Advisor  Questionnaire,  her  file  was \nreturned to the Commission’s general files on March 1, 2021. \n On  September  20,  2021,  Claimant  wrote  the  Commission,  stating  the \nfollowing: \nRhetta Burrell \nH008499 \n \nI want to appeal my workmans comp. \n \nThis  was  interpreted  as  another  hearing  request.    The  Legal  Advisor  Division \nattempted, without success, to set up a conference.  That division on October 5, \n2021,   asked   the   Clerk   of   the   Commission   to   assign   the   matter   to   an \nadministrative law judge so that a hearing could be conducted. \n The   matter   was   assigned   to   then-Administrative   Law   Judge   Katie \nAnderson  on  October  6,  2021.    Prehearing  questionnaires  were  sent to  the \nparties  on  October  7,  2021.    Respondents’  counsel  entered  his  appearance  on \nOctober  18,  2021.    Because  Claimant  filed  to  respond  to  the  questionnaire,  the \nfile was returned to the Commission’s general files on November 1, 2021. \n\nBURRELL – H008499 \n \n3 \n Nothing further occurred on this matter until September 19, 2022.  On that \ndate, the Commission received correspondence from Claimant that reads: \n09/13/2022 \nH008499 \n \nMy  name  is  Rhetta  Burrell  and  I  want  a  hearing  to  appeal  my \nworker comp case:  #H008499. \n \n/s/ Rhetta Burrell \n \nInterpreting  this  as  yet  another  hearing  request,  the  Clerk  of  the  Commission \nreassigned  the  file  to  Judge  Anderson  on  September  20,  2022.    She  re-issued \nquestionnaires to the parties on September 21, 2022.  Once more, Claimant did \nnot  comply  by  filing  a  response.    Thus,  on  October  17,  2022,  her  file  was \nreturned to general files once again. \n Claimant began a new cycle in this process on November 1, 2022, writing \nthe Clerk of the Commission and yet again “asking for an appeal.”  The file went \nback to Judge Anderson’s office\n1\n on November 2, 2022; and questionnaires were \nsent  out  on  November  10,  2022.    In  this  instance,  Claimant  complied, filing  her \nquestionnaire  response  on  December  12,  2022.    Respondents  filed  theirs  on \nDecember  8,  2022.    A  prehearing  telephone  conference  was  scheduled  for \nJanuary  17,  2023.    At  the  end  of  that  conference,  the  parties  agreed  to  set \nanother  conference  for  February  7,  2023.    Later,  on  February  13,  2023,  it  was \nreset for February 21, 2023, and then March 14, 2023.  At the appointed time on \nMarch 14, Claimant did not appear on the call.  Before hanging up, Respondents \n\nBURRELL – H008499 \n \n4 \nindicated  that  they  were  going  to  file  a  motion  to  dismiss  the  claim.    For  that \nreason,  the  file  was  not  returned  to  the  Commission’s  general  files  at  that  time, \nbut was retained to receive the motion. \n On  March  14,  2023,  Respondents  filed  the  instant  Motion  to  Dismiss.  \nTherein, they argued that dismissal was warranted under  AWCC R. 099.13  and \nArk.  Code  Ann.  § 11-9-702  (Repl.  2012)  because  Claimant  failed  to  appear  on \nthe  prehearing  telephone  conference  and  had  not  made  a  bona  fide  hearing \nrequest  within  the  requisite  period.    On  March  16,  2023,  Judge  Howe’s  office \nwrote  Claimant,  giving  her  20  days  to  respond  to  the  Motion  to  Dismiss.    The \ncorrespondence  was  sent  to  Claimant  by  first-class and certified  mail to  an \naddress  for  her  that  was  furnished  by  Respondents  in  the  motion:    477  Valley \nDale  Drive  SW,  Lilburn,  Georgia    30047.    However,  this  address  appears  to  be \nincorrect:    both  items  of  correspondence  were  returned  to  the  Commission, \nundeliverable.    The  notation  from  the  United  States Postal  Service  (“USPS”)  on \nthe  returned  certified  letter  was “NO  SUCH  NUMBER.”  (Emphasis  in  original)  \nUnfortunately, the Commission, although it had Claimant’s email address, did not \nsend  this  communication  to  her  by  that  route  as  well.    Thus,  Claimant  did  not \nreceive this letter. \n When  the  20-day  deadline  came  and  went  (unsurprisingly)  without  a \nresponse  from  Claimant,  a  hearing  was  scheduled  on  the  Motion  to  Dismiss  on \nApril 10, 2023, for May 10, 2023, at 9:30 a.m. at the Commission in Little Rock.  \n \n \n1\nJudge Anderson was replaced by Judge JayO. Howe. \n\nBURRELL – H008499 \n \n5 \nThe  Notice  of  Hearing  was  sent  via  first-class  and  certified  mail  to  a  different \naddress  than  before:    921  Church  Street,  Apartment  145,  Decatur,  Georgia  \n30030.    The  apartment  number  was  supplied  by  Respondents,  per  the  file;  but \nClaimant in her prehearing questionnaire response had previously confirmed the \nstreet  address.    As  before,  both  items  of  correspondence  were  returned  to  the \nCommission.  The first-class letter bore the USPS notation “NOT DELIVERABLE \nAS ADDRESSED.” \n Fortunately, the notice was also emailed to Claimant.  This was the saving \ngrace, for it reached her.  On April 13, 2023, she emailed Judge Howe’s office: \nGood morning.  I sincerely apologize for not being able to make the \ndate  given  [for  the  hearing  on  the  Motion  to  Dismiss]  due  to  me \nhaving  a  child  in  school  full-time.    School  ends  the  last  of  May.    I \nam asking if you will please consider a date after May.  Thank you \nkindly. \n \nRespondents  objected  to  the  continuance  request,  and  Judge  Howe  denied  the \ncontinuance, stating: \nMs. Burrell: \n \nYou  are  not  required  to  attend  the  hearing  on  the  Motion  to \nDismiss.    I  will  note  your  wish  to  attend  as  an  objection  to  the \ndismissal.  If you have any documents you would like to submit for \nthe  record,  please  provide  a  copy  of  these  to  my  office  and \n[Respondents’  counsel]  at  least  10  days  before  the  date  of  the \nhearing. \n \nYou   may   contact   our   Legal   Advisors   should   you   have   any \nquestions. \n \n The hearing on the Motion to Dismiss proceeded as scheduled on May 10, \n2023.    Again,  Claimant  failed  to  appear.    But  Respondents  appeared  through \n\nBURRELL – H008499 \n \n6 \ncounsel  and  argued  for  dismissal  of  the  action  under  the  aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including   medical   reports, \ndocuments,  and other matters  properly before  the  Commission,  and  having  had \nan  opportunity  to  hear  the  testimony  of  Claimant,  I  hereby  make  the following \nfindings of fact and conclusions of law in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \n\nBURRELL – H008499 \n \n7 \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996).  In turn, Ark. Code Ann. § 11-9-702(a)(4) (Repl. 2012) reads: \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  compensation \nno  bona  fide  request  for  a  hearing has  been  made  with  respect to \nthe  claim,  the  claim  may,  upon  motion  and  after  hearing,  be \ndismissed  without  prejudice  to  the  refiling  of  the  claim  within \nlimitation periods specified in subdivisions (a)(1)-(3) of this section. \n \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must prove \nby  a  preponderance  of  the  evidence  that  dismissal  should  be  granted.    The \nstandard  “preponderance  of  the  evidence”  means  the  evidence  having  greater \nweight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As  noted  above,  no  Form AR-C  has  been  filed  in  this  case.    That  is  the \nmeans  for  filing a  “formal  claim.”   See  Yearwood  v.  Wal-Mart  Stores,  Inc., 2003 \nAR  Wrk.  Comp.  LEXIS  739,  Claim  No.  F201311  (Full  Commission  Opinion  filed \nJune  17,  2003).   See  also Sinclair  v.  Magnolia  Hospital,  1998  AR Wrk.  Comp. \nLEXIS  786,  Claim  No.  E703502  (Full  Commission  Opinion filed  December  22, \n1998)(a claim is “typically” filed via a Form AR-C).  While a Form AR-1 was filed \nin this case, that does not suffice to instigate a claim.  Id. \n I  recognize,  however,  that  other  means  exist  to  file  a  claim  for  initial \nbenefits  other  than  a  Form  AR-C.    In Downing  v.  Univ.  of  Ark.,  1999  AR  Work. \nComp. LEXIS 979, Claim No. E209360 (Full Commission Opinion filed March 16, \n1999), the Commission stated: \n\nBURRELL – H008499 \n \n8 \nWhile   it   appears   that   no   court   has   addressed   the   minimum \nrequirements under Arkansas law to state an adequate “petition for \nreview”, in Cook v. Southwestern Bell Telephone Company, 21 Ark. \nApp.  29,  727  S.W.2d  862  (1987)  the  Arkansas  Court  of  Appeals \ndiscussed the minimum requirements necessary for \ncorrespondence   to   the   Commission   to   constitute   a   claim   for \nadditional  compensation  for  the  purposes  of  tolling  the  applicable \nStatute  of  Limitations.     In  that  case,   the  Court  held  that  an \nattorney's  correspondence  notifying  the  Commission  that  he  has \nbeen  employed  to  assist  a  claimant  in  connection  with  unpaid \nbenefits  is  sufficient  to  state  a  claim  for  additional  compensation \nwhere  the  correspondence  also  lists  the  claimant's  name,  the \nemployer's name and the WCC file number. Id., See also, Garrett v. \nSears  Roebuck  and  Company,  43  Ark.  App.  37,  858  S.W.2d  146 \n(1993).    Moreover,  we  have  interpreted Cook  as  requiring  that \ncorrespondence  intended  as  a  claim  for  additional  benefits  (1) \nidentify  the  claimant,  (2)  indicate  that  a  compensable  injury  has \noccurred, and (3) convey the idea that compensation is expected. \n \n(Citations omitted) \n My  review  of  the  Commission’s  file  discloses  a  document  sufficient  to \nconstitute a filing of a claim for initial benefits under the factors cited above.  That \ndocument   is   Claimant’s   prehearing   questionnaire response,   filed   with   the \nCommission on December 12, 2022. \n The  evidence  adduced  at  the  hearing  shows  that  Claimant  has taken  no \naction  in  pursuit  of  her  claim  since  appearing  at  the  prehearing  telephone \nconference  on  January  17,  2023.    Again,  she  failed  to  appear  on  the  one \nscheduled  for  March  14,  2023.    That  marked  the  fourth  time  Claimant  had \nrequested a hearing on her claim, but had failed to follow through.  Moreover, the \nevidence   clearly   shows   that   both   she   and   Respondents   were   provided \nreasonable notice of the Motion to Dismiss and of the hearing thereon.  Thus, the \n\nBURRELL – H008499 \n \n9 \nevidence preponderates that dismissal is warranted under Rule 13.  Because of \nthis finding, it is unnecessary to address the applicability of Ark. Code Ann. § 11-\n9-702(a)(4) (Repl. 2012). \n That  leaves  the question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer Co.,   2005  AR Wrk.  Comp. \nLEXIS  5  10,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”    (Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v.  Strong, \n75  Ark.  249,  629  S.W.2d  284  (1982)).  Respondents  at  the hearing  asked  for  a \ndismissal without prejudice.  Based on the above authorities, I agree and find that \nthe dismissal of this claim should be and hereby is entered without prejudice.\n2\n \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":14990,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H008499 RHETTA BURRELL, EMPLOYEE CLAIMANT McDONALD’S STORE, EMPLOYER RESPONDENT SENTRY CASUALTY CO., CARRIER RESPONDENT OPINION FILED MAY 17, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on May 10, 2023, in Little Rock, Pulaski County,...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:07:36.766Z"},{"id":"alj-H008920-2023-05-17","awccNumber":"H008920","decisionDate":"2023-05-17","decisionYear":2023,"opinionType":"alj","claimantName":"John Kunkel","employerName":"Leaffilter North, LLC","title":"KUNKEL VS. LEAFFILTER NORTH, LLC AWCC# H008920 MAY 17, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//KUNKEL_JOHN_H008920_20230517.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KUNKEL_JOHN_H008920_20230517.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H008920 \n \n \nJOHN KUNKEL,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nLEAFFILTER NORTH, LLC, \nEMPLOYER                                                                                                         RESPONDENT \n \nARCH INS. CO./PMA MG’T CO., \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                               \n \nOPINION AND ORDER GRANTING RESPONDENTS’ MOTION TO COMPEL \nFUNCTIONAL CAPACITY EVALUATION (FCE) \nFILED MAY 17, 2023 \n \nSubmitted for decision on May 1, 2023, on the parties’ briefs and designated record pursuant to \nthe  parties’  mutual  agreement, before  the Arkansas  Workers’  Compensation  Commission  (the \nCommission),  Administrative  Law  Judge  (ALJ)  Mike  Pickens,  in  Little  Rock,  Pulaski  County, \nArkansas. \n \nThe claimant, Mr. John Kunkel, is represented by the Honorable Andy Caldwell, Caldwell Law \nFirm, Little Rock, Pulaski County, Arkansas. \n \nThe respondents are represented by the Honorable Lee J. Muldrow, Wright, Lindsey & Jennings, \nLittle Rock, Pulaski County, Arkansas.  \n \nINTRODUCTION \n     The  parties  mutually  agreed  to  submit  the  issue  of  whether  the  ALJ  should  grant  the \nrespondents’ motion to compel the claimant to submit himself for an FCE. The respondents’ filed \ntheir motion concerning the FCE on or about April 12, 2023; and the claimant filed his response \nthereto, along with an exhibit consisting of attached medical records, on or about April 14, 2023. \nThe  ALJ  scheduled  and  conducted  a  prehearing  teleconference  on  April  18,  2023,  and  the \nprehearing order was filed the same day, April 18, 2023. The respondents filed their letter brief on \nMay 1, 2023, and the claimant filed his response thereto on the same day, May 1, 2023. Therefore, \nthe case was deemed as submitted for decision on May 1, 2023.  \n\nJohn Kunkel, AWCC No. H008920 \n2 \n \n     The  record  shall consist of the prehearing order filed April 18, 2023, as well as the parties’ \nrespective motion and response thereto, and briefs, supra, as well as any and all exhibits attached \nto the aforementioned filings. In addition, the record shall consist of the Commission’s entire file \nin this claim.  \n \nSTATEMENT OF THE CASE \n \n     The claimant, Mr. John Kunkel (the claimant) sustained an admittedly compensable injury to \nhis left ankle on November 2, 2020. The respondents accepted the claim as compensable and paid \nboth  medical  and  temporary  total  disability  (TTD)  benefits.  Dr.  Phillip  Smith,  the  claimant’s \ntreating orthopedic surgeon, treated the claimant from November 2020 through March 2, 2021, at \nwhich  time  he  ordered  an  FCE,  which  was  performed  on  March  12,  2021.  This  FCE  was \ndetermined  to  be,  “unreliable.”  On  April  6,  2021,  Dr.  Smith  opined  the  claimant  had  reached \nmaximum medical improvement (MMI) and released him. \n     Thereafter the claimant exercised his statutory right to a one (1)-time-only change of physician \n(COP)  to  Dr.  Gregory  Ardoin.  Dr.  Ar.  Doin  ultimately  performed  arthroscopic  surgery  on  the \nclaimant’s left ankle on February 1, 2022, after which the claimant underwent cortisone injections \nand physical therapy (PT). Dr. Ardoin opined the claimant reached MMI as of November 14, 2022, \nand  released  him.  At  this  time  Dr.  Ardoin  also  provided  the  claimant  the  generalized  work \nrestrictions,  stating  specifically  the  claimant  should,  “avoid  uneven  ground,  no  stooping  or \nsquatting  and  avoid  ladder  climbing.”  (Claimant’s  Response  to  the  Respondents’  Motion  to \nCompel FCE, Exhibit A, at page 6). In addition, Dr. Ardoin summarily assessed the claimant three \n(3)   separate   permanent   anatomical   impairment   ratings,   and   cited   the American   Medical \nAssociation  Guides  to  the  Evaluation  of  Permanent  Impairment (AMA,  4\nth\n  Edition,  1993)  (the \nGuides). (Id.). \n\nJohn Kunkel, AWCC No. H008920 \n3 \n \n     Among other benefits, the claimant is requesting the Commission to determine the extent of the \nclaimant’s permanent anatomical impairment, the claimant is requesting vocational rehabilitation \nbenefits  pursuant  to Ark.  Code  Ann.  Section  11-9-505  (2023  Lexis  Replacement)  (Section  505 \nbenefits).  \nDISCUSSION \n     It is well-settled that the Commission may require the claimant to submit to such examinations \nas  may  be  necessary  to  assist  the  trier-of-fact  to  have  sufficient  evidence  to  rule  on  issues  that \nrequire the ALJ and/or Commission to determine the extent of a claimant’s permanent impairment, \nas well as his entitlement to wage loss disability benefits, if any. FCE’s are commonly used for \nthese purposes, especially where the existing medical evidence is conclusory, incomplete, and/or \nconflicting. See, e.g., North Hills Surgery Center v. Otis, 2021 Ark. App. 468, 638 S.W.3d 323 \n(Ark. App. 2021); Eldridge v. Pace Industries, LLC, et al, 2021 Ark. App. 245, 625 S.W.3d 734 \n(Ark. App. 2021).  \n     In  this  case,  especially  in  light  of  the  fact  the  impairment  ratings  Dr.  Ardoin  assigned  the \nclaimant are conclusory and do not explain the basis for the ratings (other than summarily citing \nthe Guides); as well as the fact the claimant is requesting Section 505 benefits, this ALJ is of the \nopinion that any and all additional information – and on these facts, particularly an FCE – would \nbe  beneficial  to  both  the  parties’  and  the  ALJ  in  determining  the  extent  of  the  claimant’s \nimpairment, as well as what the exact nature of his permanent physical limitations and restrictions \nare and, therefore, what type of jobs he is able to perform. Moreover, in the interest of fundamental \nfairness and completeness of the ultimate hearing record, I am of the opinion the respondents are \nentitled to the additional factual information such as that/those a current, post-surgery FCE will \nundoubtedly provide.  \n\nJohn Kunkel, AWCC No. H008920 \n4 \n \n     Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The parties’ stipulations contained in the prehearing order filed April 18, 2023, \nhereby are accepted as facts. \n \n2. The respondents’ motion requesting the claimant should be compelled to submit \nhimself for a current FCE at the respondents’ expense should be and hereby is \nGRANTED.  \n \n3. The claimant’s and respondents’ attorneys shall confer and cooperate in scheduling \nand ensuring that the claimant attends an FCE with Mr. Rick Byrd, of Functional \nTesting Centers, Inc., at their earliest possible convenience.   \n \n     Of course, if the claimant fails and/or refuses to comply with the terms of this opinion and \norder, he may be subject to a show cause hearing for contempt and, if justified, appropriate \nsanctions. I trust this will not be necessary.  \n     IT IS SO ORDERED. \n                                                                     \n____________________________                                                                      \n                                                                        Mike Pickens \n                                                                         Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":7658,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H008920 JOHN KUNKEL, EMPLOYEE CLAIMANT LEAFFILTER NORTH, LLC, EMPLOYER RESPONDENT ARCH INS. CO./PMA MG’T CO., CARRIER/TPA RESPONDENT OPINION AND ORDER GRANTING RESPONDENTS’ MOTION TO COMPEL FUNCTIONAL CAPACITY EVALUATION (FCE) FILED MAY 17, 2023 Submitted f...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T23:07:38.902Z"},{"id":"alj-H201744-2023-05-17","awccNumber":"H201744","decisionDate":"2023-05-17","decisionYear":2023,"opinionType":"alj","claimantName":"Willie Lewis","employerName":"Central Maloney, Inc","title":"LEWIS VS. CENTRAL MALONEY, INC. AWCC# H201744 MAY 17, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//LEWIS_WILLIE_H201744_20230517.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LEWIS_WILLIE_H201744_20230517.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H201744 \n \nWILLIE LEWIS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nCENTRAL MALONEY, INC., \nEMPLOYER                                                                                                         RESPONDENT  \n \nRISK MANAGEMENT RESOURCES, \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION FILED MAY 17, 2023 \n \nHearing conducted on Wednesday, May 11, 2023, before the Arkansas Workers’ Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ)  Steven  Porch,  in  Pine  Bluff, \nJefferson County, Arkansas. \n \nThe claimant, Mr. Willie Lewis, pro se, of Pine Bluff, Jefferson County, Arkansas, appeared in \nperson at the hearing.  \n \nThe  respondents  were  represented  by  the  Honorable  Jarrod  Parrish,  Worley,  Wood  &  Parrish, \nLittle Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A  hearing  was  conducted  on  Thursday,  May  11,  2023,  to  determine  whether  this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2022) \n(Lexis Replacement)  and Commission Rule 099.13 (2022 Lexis Repl.). The respondents  filed  a \nmotion to dismiss with the Commission on March 17, 2023, requesting this claim be dismissed for \nlack of prosecution.  \n           In accordance with applicable Arkansas law, the claimant was mailed due and proper legal \nnotice of both the respondents’ motion to dismiss as well as a  copy of the hearing notice at his \ncurrent addresses of record via the United States Postal Service (USPS), First Class Certified Mail,  \nReturn Receipt Requested, which he received on April 17, 2023.  \n\nLEWIS – H201744 \n \n2 \n \n          The claimant stated during the hearing that he had personal situations that prohibited him \nfrom prosecuting his claim. The claimant stated that within the last 10 days of the hearing date that \nhe had to bury his mother. He was not the primary caregiver for his mother. The claimant could \nnot  articulate  any  other  reasons  for  his  delay  in  prosecuting  this  matter.  The  claimant  wants  to \ncontinue  with  this  case  and  has  stated  that  several  times  throughout  the  hearing.  The  claimant \ndesires to hire an attorney. The Commission recognizes that Claimant did retain Laura Beth York, \nattorney-at-law, who subsequently withdrew as his counsel of record on October 21, 2022.  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter by reference. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. I do \nfind by the preponderance of the evidence, introduced at the hearing and contained in the record, \nthat Claimant has neither requested a hearing nor has he taken any action to pursue his claim as of \nthe hearing date. However, I do find that Claimant has shown by bringing his treating physician to \nthe Motion to Dismiss hearing a sincere desire to prosecute this claim. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction over this claim. \n \n 2. The ALJ hereby denies Respondents’ Motion to Dismiss.       \n \n      3.         The parties have 45 days from the hearing date, or until Tuesday, June 27, \n                  2023, to obtain any and all additional information they require and to attempt to  \n\nLEWIS – H201744 \n \n3 \n \n                  resolve any and all outstanding issues, if any remain. This timeline will not change  \n                  absent good cause. \n \n      4.        If, within seven (7) days after the expiration of this 45-day time-period the claimant \n                 does not request, in writing (with a copy to the respondents’ attorney, of course), a \n                 hearing before the Commission, the Commission will entertain the filing of a second  \n                 Motion to Dismiss by Respondents. \n \n     If Respondents have not already done so, they shall pay the court reporter’s invoice within \n \ntwenty (20) days of the filing of this opinion and order. The questionnaires shall be sent out and \nreturned to the Commission consistent with law and this opinion.  \n \n     IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               STEVEN PORCH \n                                                                                               Administrative Law Judge","textLength":5143,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201744 WILLIE LEWIS, EMPLOYEE CLAIMANT CENTRAL MALONEY, INC., EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 17, 2023 Hearing conducted on Wednesday, May 11, 2023, before the Arkansas Workers’ Compensation...","outcome":"dismissed","outcomeKeywords":["dismissed:4","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:41.025Z"},{"id":"alj-H206640-2023-05-17","awccNumber":"H206640","decisionDate":"2023-05-17","decisionYear":2023,"opinionType":"alj","claimantName":"Latrelle Thompson","employerName":"Wr Community Services","title":"THOMPSON VS. WR COMMUNITY SERVICES AWCC# H206640 MAY 17, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/THOMPSON_LATRELLE_H206640_20230517.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOMPSON_LATRELLE_H206640_20230517.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H206640 \n \nLATRELLE THOMPSON, EMPLOYEE  CLAIMANT \n \nWR COMMUNITY SERVICES, \nEMPLOYER                                                                                                RESPONDENT  \n \nLUBA CASUALTY INSURANCE COMPANY, \nINSURANCE CARRIER/TPA                                   RESPONDENT  \n \n \nOPINION FILED MAY 17, 2023 \n \nHearing before Administrative Law Judge Steven Porch on May 11, 2023, in Pine Bluff, \nPulaski County, Arkansas. \n \nClaimant, pro se. \n \nRespondents  were  represented  by  Mr.  Jarrod  S.  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on May 11, 2023, in Pine Bluff, \nArkansas.  Claimant, who is pro se, did not appear for the hearing.  Respondents were \nrepresented  at  the  hearing  by  Mr.  Jarrod  S.  Parrish,  Attorney  at  Law,  of  Little  Rock, \nArkansas.      In   addition   to   Respondent’s argument,   the   record   consists   of   the \nCommission’s  file–which  has  been  incorporated  herein  in  its  entirety  by  reference  and \nCommission Exhibit 1. \n The evidence reflects that Claimant’s injury occurred on August 18, 2022, where \nshe purportedly injured her right shoulder, arm, wrist, and other whole body.  This incident \noccurred  when  Claimant  was  helping  a  patient  during  the  course  and  scope  of \nemployment.  Claimant  was  able  to  secure  legal  counsel  to  represent  her  on this  claim \n\nTHOMPSON – H206640 \n \n \n2 \nthrough Mark Alan Peoples. However, Attorney Mark Alan Peoples withdrew as attorney \nof  record  effective  November  1,  2022.  Since  then, this  case  has  been  inactive  until \nRespondents filed a Motion to Dismiss due to the lack of prosecution. A hearing was set \nfor May  11,  2023,  in  Pine  Bluff,  Arkansas  on  the  Motion  to  Dismiss.  The  hearing  took \nplace as scheduled and as previously stated the Claimant did not appear for the hearing. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission, and having had an opportunity to hear the sworn testimony of the Claimant, \nI  hereby  make  the following findings of fact and  conclusions  of  law  in accordance  with \nArk. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute her claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \n\nTHOMPSON – H206640 \n \n \n3 \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice of the Motion to Dismiss hearing under Rule 13. I further find that \nClaimant has abridged this rule. Thus I find Respondent’s Motion to Dismiss should be \ngranted. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":4985,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206640 LATRELLE THOMPSON, EMPLOYEE CLAIMANT WR COMMUNITY SERVICES, EMPLOYER RESPONDENT LUBA CASUALTY INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 17, 2023 Hearing before Administrative Law Judge Steven Porch on May 11, 2023, in Pin...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":["shoulder","wrist"],"fetchedAt":"2026-05-19T23:07:43.095Z"},{"id":"alj-G607898-2023-05-11","awccNumber":"G607898","decisionDate":"2023-05-11","decisionYear":2023,"opinionType":"alj","claimantName":"Louise Anderson","employerName":"University Of Arkansas For Medical Sciences","title":"ANDERSON VS. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES AWCC# G607898 MAY 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//ANDERSON_LOUISE_G607898_20230511.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ANDERSON_LOUISE_G607898_20230511.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G607898 \n \nLOUISE ANDERSON, EMPLOYEE  CLAIMANT \n \nUNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES, \nEMPLOYER                                                                                                RESPONDENT  \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA                                   RESPONDENT  \n \n \nOPINION FILED MAY 11, 2023 \n \nHearing before Administrative Law Judge  Steven Porch on May 9, 2023 in Little Rock, \nPulaski County, Arkansas. \n \nClaimant, pro se. \n \nThe  Respondents  were  represented  by  Mr.  Charles  McLemore,  Attorney  at  Law,  Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on May 9, 2023, in Little Rock, \nArkansas.  Claimant, who is pro se, did appear.  Respondents were represented at the \nhearing by Mr. Charles McLemore, Attorney at Law, of Little Rock, Arkansas.  In addition \nto Respondent’s argument, the record consists of the Commission’s file–which has been \nincorporated herein in its entirety by reference and Respondents’ Exhibit 1. \n The evidence reflects that per the First Report of Injury or Illness, Form AR-1, was \nfiled on August 17, 2015, Claimant purportedly injured her right leg at work on August 16, \n2015 when a gurney carrying a deceased man collapsed on Claimant’s right leg causing \na contusion.  The collapse of the gurney resulted in the corpse rolling on top of Claimant \nfor an undisclosed amount of time until other employees removed it from on top of her. \n\nANDERSON – G607898 \n \n \n2 \nAccording  to  Form  AR-2  that  was  filed  on  November  2,  2016,  Respondents  accepted \nClaimant’s leg injury as compensable.  Claimant was unable to secure legal counsel to \nrepresent  her on this  claim  when  the  injury  occurred  and  when  the  Motion  to  Dismiss \nhearing was first scheduled. Since the accident in August 16, 2015,  this case has been \ninactive  until  Respondents  filed  a  Motion  to  Dismiss  due  to  the  lack  of  prosecution.  A \nhearing was set for May 9, 2023, in Little Rock, Arkansas on the Motion to Dismiss. The \nhearing took place as scheduled. \nAt the hearing and as previously stated, the Claimant did appear and testify. When \nasked  why  it  has  taken  approximately  eight  years  to  prosecute  this  claim,  Claimant \nresponded that she was waiting on information from her employer as to how the case was \ngoing. Claimant also stated that she was waiting to hear from the Commission regarding \nthe status of her claim. Claimant’s husband, Timothy Anderson, testified, that he assisted \nClaimant  with  completing  Form  AR-C.  Timothy  Anderson  further  testified that  he  just \nforgot about the claim but would periodically ask Claimant how the claim was going. In \nessence, I find that Claimant did not know what they were doing and decided to wait to \nhear from the Claimant’s employer or the Commission to figure out their next steps. The \nClaimant did not know how to push or prosecute her claim. But ignorance of the law is no \nexcuse. Pro  se  litigants  are  held  to  the  same  standards  as  licensed  attorneys.    E.g., \nArnold  v.  Pitts,  2020  Ark.  App.  549,  2020  Ark.  App.  LEXIS  615  (2020).  Respondents \nargued for dismissal under Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission, and having had an opportunity to hear the sworn testimony of the Claimant, \n\nANDERSON – G607898 \n \n \n3 \nI  hereby  make  the following findings of fact and  conclusions  of  law  in accordance  with \nArk. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \n\nANDERSON – G607898 \n \n \n4 \nCommission. White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness but may accept and translate into findings of fact only those portions of \nthe testimony that it deems worthy of belief.  Id. \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice of the Motion to Dismiss hearing under Rule 13. I further find that \nClaimant has abridged this rule. Thus, I find Respondent’s Motion to Dismiss should be \ngranted without prejudice. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6331,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G607898 LOUISE ANDERSON, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 11, 2023 Hearing before Administrative Law Judge Steven Porch on ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:28.323Z"},{"id":"alj-H000742-2023-05-11","awccNumber":"H000742","decisionDate":"2023-05-11","decisionYear":2023,"opinionType":"alj","claimantName":"Daniel Kinne","employerName":"Central States Mfg., Inc","title":"KINNE VS. CENTRAL STATES MFG., INC. AWCC# H000742 MAY 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//KINNE_DANIEL_H000742_20230511.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KINNE_DANIEL_H000742_20230511.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H000742 \n \nDANIEL R. KINNE, Employee                                                                         CLAIMANT \n \nCENTRAL STATES MFG., INC., Employer                                              RESPONDENT                         \n \nSENTRY INSURANCE COMPANY, Carrier                                             RESPONDENT                        \n \n \n OPINION FILED MAY 11, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On April 12, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on  February 22, 2023 and a pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The claimant sustained a compensable injury to his neck and back on October \n6, 2019. \n 3.      The  claimant  was  earning  sufficient  wages  to  entitle  him  to  the  maximum \ncompensation  rates  of  $695.00  for  total  disability  benefits  and  $521.00 for  permanent \n\nKinne – H000742 \n \n2 \n \npartial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Claimant’s entitlement to additional medical treatment in the form of surgery  \non his back as recommended by Dr. Blankenship. \n2.    Temporary total disability benefits from December 8, 2021 through August 15,  \n2022. \n 3.      Attorney  fee;  including  a fee  on temporary  total  disability  benefits  paid  as  a \nresult of the neck surgery performed by Dr. Blankenship. \n At  the  time  of  the  hearing  claimant  indicated  that  he  is  no  longer  requesting \npayment  of  any  past  temporary  total  disability  benefits.    Claimant  also  indicated  that  if \nsurgery  for  his  lumbar  spine  is  approved  and  he  becomes  entitled  to  temporary  total \ndisability benefits that an attorney fee should be awarded. \n The claimant contends he is entitled to surgery for his back as recommended by \nDr. James Blankenship.  Claimant contends his counsel is entitled to an attorney fee on \nany previously paid temporary total disability benefits paid as a result of the neck surgery \nperformed by Dr. Blankenship.  Claimant reserves all other issues. \n The  respondents  contend  that  it  is not  liable  for the  treatment  recommended  by \nDr. Blankenship or a controverted attorney fee on  temporary total disability benefits paid \nas a result of the neck surgery.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n\nKinne – H000742 \n \n3 \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non February  22,  2023  and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to additional medical treatment in the form of surgery to his low back \nas recommended by Dr. Blankenship. \n 3.   Claimant’s attorney is entitled to an attorney fee on temporary total disability \nbenefits previously paid to claimant as a result of his cervical surgery. \n \n FACTUAL BACKGROUND \n Claimant is a 50-year-old man who began working for respondent as a long-haul \ntruck driver in May 2016 and on October 6, 2019, he suffered an admittedly compensable \ninjury to his neck and low back.  Claimant testified that on that date he was walking on an \nuneven load, putting a tarp over the load, when he slipped and fell due to rain that was \nfalling.   \n  And when I slipped and fell, my foot got hung up in a pallet \n  and I fell to the side on the uneven surface and hit the side \n  of the trailer and was hanging upside down until a forklift \n  driver moments later came by and helped me get my foot \n  loose and helped me pull up to get me loose from the load. \n \n \n After  the  accident,  claimant  initially  came  under  the  care  of  Dr.  Berestnev  who \ndiagnosed claimant with a cervical and lumbar strain.  He treated claimant with injections \nof DepoMedrol and physical therapy.  When claimant’s condition did not improve he filed \n\nKinne – H000742 \n \n4 \n \nfor and received a change of physician to Dr. Blankenship, neurosurgeon.   Dr. \nBlankenship referred claimant to Dr. Cannon for a cervical epidural steroid injection \nand a possible lumbar epidural steroid injection.   \n In  his  report  of  December  10, 2020, Dr. Blankenship noted that claimant’s neck \npain was hurting him more than his back pain and he recommended cervical surgery: \n   \n  At present he feels like his neck is  hurting him worse \n  than his lower back.  He has kyphotic angulation at \n  C4-C5 with slight retrolisthesis at C4-C5.  This signi- \n  ficantly exacerbates an extension and completely \n  reduces in flexion which would be indicative of gross \n  segmental instability at this level.  I have offered an \n  anterior cervical arthrodesis and fusion at C4-C5. \n \n \n Initially, respondent denied this surgery and claimant requested a hearing.  Prior \nto  the  hearing,  respondent  accepted  liability  for  the  cervical  surgery.    (This  will  be \ndiscussed in greater detail later in this opinion.)  Dr. Blankenship performed the cervical \nsurgery on October 6, 2021, and according to Dr. Blankenship’s reports the surgery was \nsuccessful.   \n Since the cervical surgery, claimant has continued to complain of low back pain.  \nIn his report of December 2, 2021, Dr. Blankenship indicated that claimant did not want \nto consider surgery at that time but instead wanted to return to work. \n  He has marked facet arthropathy at L4-L5.  At L5-S1 \n  on his MRI from 2020, he does have marked facet \n  arthropathy.  Right now he does not feel like it is time  \nto look at surgery for his lower back.  He wants to get \n  back to work.   \n \n \n Claimant’s low back pain continued and Dr. Blankenship ordered a new lumbar \n\nKinne – H000742 \n \n5 \n \nMRI scan and in his report of June 23, 2022, he stated: \n  He had lower back pain when he initially saw us but now \n  his lower back pain has gotten significantly worse and he \n  has posterolateral leg pain, right much more significant \n  than the left.  The patient did physical therapy for his \n  lower back when he did his therapy for his neck.  His \n  plain radiographs demonstrate marked disc space \n  settling at the lumbosacrum.  He has retrolisthesis at \n  L3-L4 and L4-L5 in extension.  Both reduce in flexion. \n  His MRI demonstrates right-greater-than-left foraminal \n  stenosis at the lumbosacrum with severe facet arthro- \n  pathy.  He has significant facet arthropathy with mild \n  bilateral recess stenosis at L4-L5 and has an extreme \n  lateral disc herniation on the right-hand side at L3-L4. \n \n \n In  that  same  report  Dr.  Blankenship  stated  that  he  discussed  with  surgery  on \nclaimant’s lumbar spine but before proceeding he would recommend one last aggressive \nconservative  treatment  of  a  lumbar  epidural  steroid  injection  by  Dr.  Cannon  and  an \naggressive physical therapy program.   \n In his report of August 4, 2022, Dr. Blankenship indicated that the physical therapy \nhad aggravated claimant’s low back pain and stated that medication had provided minimal \nrelief.  He recommended a multilevel arthrodesis at L3-4, L4-5, and L5-S1.   \n Respondent  has  denied  the  surgery  recommended  by  Dr.  Blankenship  on \nclaimant’s lumbar spine.  As a result, claimant has filed this claim contending that he is \nentitled to the surgery recommended by Dr. Blankenship. \n \nADJUDICATION \n Claimant contends that he is entitled to additional medical treatment in the form of \nsurgery  to  his  lumbar  spine  as  recommended  by  Dr.  Blankenship.    Claimant  has  the \n\nKinne – H000742 \n \n6 \n \nburden  of  proving  by  a  preponderance  of  the  evidence  that  medical  treatment  is \nreasonable and necessary.  Stone v. Dollar General Stores, 91 Ark. App. 260, 209 S.W. \n3d 445 (2005).  What constitutes reasonably necessary medical treatment is a question \nof fact for the Commission.  Wright Contracting Company v. Randall, 12 Ark. App. 358, \n676 S.W. 2d 750 (1984).   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has met his burden of proof.   \n Initially, I note that at his deposition claimant testified that he did not have any prior \nlow  back  complaints  before  the  accident  on  October  6,  2019.    However,  the  medical \nevidence indicates that claimant sought medical treatment for low back complaints from \na nurse practitioner on November 18, 2015 and was diagnosed with thoracolumbar back \npain.    The  report  also  indicated  that  claimant  desired  to  follow  up  with  neurology with \nregards to any imaging.  There is no indication that any imaging or any follow-up treatment \nwas received at that time.   \n Claimant  again  complained  of  lower  back  pain  to  a  nurse  practitioner  on \nSeptember 9, 2016.  Claimant gave a history of lower back pain for two to three months \nwhich had begun while driving a truck long distance.  Claimant indicated that he had to \nstop driving and get out to walk around in order to relieve the pain.  The report also notes \nthat claimant tried a TENS unit one time at home with some relief.   \n I note that claimant is not required to prove that his compensable injury is the major \ncause of the need for medical treatment. When the claimant has suffered a specific injury \nand  is  only  seeking  medical  benefits  and  temporary  total  disability,  the  major  cause \nanalysis is not applicable and the claimant need only show that the compensable injury \n\nKinne – H000742 \n \n7 \n \nwas a factor in the need for additional medical treatment.  Williams v. L & W Janitorial, \nInc.,  85  Ark.  App.  1,  145  S.W.  3d  383  (2004).    Here,  respondent  has  stipulated  that \nclaimant suffered a compensable injury to his low back on October 6, 2019.  There is no \nindication that  claimant sought any medical treatment for his low back complaints after \nSeptember  9,  2016,  until  after  his  admittedly  compensable  injury  on  October  6,  2019.  \nDuring that period of time the claimant performed his job duties for the respondent without \nany  apparent  difficulty.  Based  upon  the  evidence  presented,  I  find  that  claimant  has \nproven that his compensable injury is a factor in his need for medical treatment. \n I also find that Dr. Blankenship’s opinion is credible and entitled to great weight.  \nDr. Blankenship has been claimant’s authorized  treating  physician  and  has  previously \nperformed surgery on claimant’s cervical spine.  I do note that respondent previously had \nclaimant undergo an IME by Dr. Frank Tomecek on May 12, 2021.  While Dr. Tomecek \nagreed that claimant was in need of surgical treatment on his cervical spine, he was of \nthe opinion that surgery on the lumbar spine was not indicated.  I find that the opinion of \nDr. Blankenship is entitled to greater weight.  First, Dr. Blankenship has treated claimant \nfor an extended period of time and that treatment included cervical surgery.  On the other \nhand, Dr. Tomecek evaluated the claimant on only one occasion.  More importantly, Dr. \nBlankenship’s most recent recommendation for lumbar spine surgery is based in part on \na new MRI scan that was performed on September 3, 2021.  Dr. Tomecek did not have \nthe benefit of that MRI scan at the time of his opinion. \n Accordingly,  based  upon  the  evidence  presented  as  well  as  the  opinion  of  Dr. \nBlankenship, I find that claimant has met his burden of proving by a preponderance of the \nevidence  that  the  recommended  surgery  on  his  lumbar  spine  is  reasonable  and \n\nKinne – H000742 \n \n8 \n \nnecessary medical treatment for his compensable injury. \n The next issue for consideration involves claimant’s request for an attorney fee on \ntemporary total disability benefits previously paid as a result of claimant’s cervical spine \ninjury. \n Dr. Blankenship recommended that claimant undergo a cervical spine surgery in \nhis report of December 10, 2020.  Respondent did not accept liability for that surgery and \nas  a  result  claimant  filed  a  pre-hearing  questionnaire  on  or  about  January 26,  2021, \ncontending  that  he  was  entitled  to  the  cervical  spine  surgery  recommended  by  Dr. \nBlankenship.  A pre-hearing conference on that claim was conducted on March 10, 2021.  \nIn  response  to  the  pre-hearing  conference,  respondent  completed  a  pre-hearing \nquestionnaire dated March 8, 2021, with the following contention: \n  Respondents maintain that the surgical recommendation \n  by Dr. Blankenship is not reasonable, necessary or \n  causally related to the events of 10/06/19. \n \n \n I do note that in the pre-hearing questionnaire respondent did indicate that it might \nrequest a possible IME or second opinion evaluation report.   Following the pre-hearing \nconference a pre-hearing order was filed.  That pre-hearing order states the following with \nregard to respondent’s contentions: \n  The respondents contend that the surgical recommendation \n  by Dr. Blankenship is not reasonable, necessary or causally \n  related to the events of October 6, 2019. \n \n \n A hearing on claimant’s claim was scheduled for May 26, 2021.  Prior to that \nhearing, respondent had claimant undergo an IME by Dr. Tomecek who authored a report \ndated May 12, 2021, agreeing that claimant was in need of surgery on his cervical spine.  \n\nKinne – H000742 \n \n9 \n \nIn an e-mail dated May 20, 2021 to this administrative law judge from Attorney Parrish, it \nwas stated: \n  Here is the IME report.  I have a message in to my client \n  to find out how they want to proceed.  Respondent will \n  rely on this report if the hearing goes forward. \n \n \n On May 25, 2021, one day before the scheduled hearing, Attorney Parrish sent in \nthe following e-mail: \n  Based on the IME doctor’s opinion, my client is agreeing \n  to pay for the cervical spine surgery. \n \n \n Claimant  eventually  underwent  the  cervical  spine  surgery  and  was  off  work  for \napproximately eight weeks for which respondent paid claimant temporary total disability \nbenefits.  However, respondent did not pay claimant’s attorney a fee on those temporary \ntotal  disability  benefits.   Claimant’s attorney contends that she is entitled to a fee on \npayment of those temporary total disability benefits. \n First, I find that respondent controverted claimant’s entitlement to the cervical spine \nsurgery.  The respondent in its brief to the Commission is correct in noting that the failure \nof  the  employer  to  pay  compensation  benefits  does  not,  in  and  of  itself,  amount  to \ncontroversion  when  the  carrier  accepts  an  injury  as  compensable  and  is  attempting  to \ndetermine  the  extent  of  disability  or  is  making  a  reasonable  attempt  to  investigate.  \nOsborne v. Bekaert Corporation, 97 Ark. App. 147, 245 S.W. 3d 185 (2006); Hamrick v. \nThe Colsen Company, 271 Ark. 740, 610 S.W. 2d 281 (1981).   \n As previously noted, Dr. Blankenship recommended that claimant undergo surgery \non  his  cervical  spine  on  December  10,  2020.    Respondent  did  not  indicate  that  it  was \n\nKinne – H000742 \n \n10 \n \nattempting to investigate claimant’s need for surgery at that time.  Instead, almost a month \nlater  claimant  requested  a  hearing  on  his  entitlement  to  cervical  spine surgery  by  Dr. \nBlankenship.    In  response  to  that  request,  respondent  in  its  pre-hearing  questionnaire \nspecifically contended: \n  Respondents maintain that the surgical recommendation \n  by Dr. Blankenship is not reasonable, necessary or \n  causally related to the events of 10/06/19. \n \n \n While  respondent  did  indicate  that  it  was  possible  it  would  pursue  an  IME  or  a \nsecond  opinion  report,  respondent did  not  indicate  that  it  was  simply  in  the  process of \ninvestigating claimant’s need for surgical treatment.  In fact, it was not until the day before \nthe  scheduled  hearing  that  respondent  agreed  to  pay  for  claimant’s  cervical  spine \nsurgery.    This  was  May  25,  2021,  more  than  five  months  after  Dr.  Blankenship’s \nrecommendation.  Based upon these facts, I find that respondent controverted claimant’s \nentitlement to the cervical spine surgery recommended by Dr. Blankenship.   \n Respondent also indicates that nowhere in the pre-hearing order nor in claimant’s \npre-hearing  questionnaire  was  temporary  total  disability  benefits  or  an  attorney  fee \nmentioned.  That is a correct statement.  At the time claimant requested a hearing on his \nentitlement to cervical surgery, he was continuing to work for the respondent and was not \nentitled to temporary total disability benefits.  Claimant did not begin missing work until \nrespondent  accepted  the  cervical  spine  surgery  and  claimant  actually  underwent that \nsurgery  and  was  taken  off  work  by  Dr.  Blankenship.    A  request  for  temporary  total \ndisability  benefits  at  the  time  of  the  original  pre-hearing  conference  would  have  been \npremature since claimant was not suffering a total incapacity to earn wages. \n\nKinne – H000742 \n \n11 \n \n Respondent also notes it did not deny or resist claimant’s entitlement to temporary \ntotal disability benefits once he stopped working for the cervical spine surgery.  While that \nis correct, it ignores the fact that respondent initially denied claimant’s entitlement to the \ncervical  spine  surgery  which  resulted  in  his  entitlement  to  temporary  total  disability \nbenefits. \n Finally, respondent contends that because there was no “award” of temporary total \ndisability benefits in this case, an attorney fee is not appropriate pursuant to A.C.A. §11-\n9-704.  However, as noted by the respondent in its brief, the Workers’ Compensation \nCommission and more importantly the Arkansas Court of Appeals have found that under \nsimilar circumstances an attorney fee is appropriate. Walmart Stores, Inc. v. Brown, 73 \nArk.  App.  174,  40  S.W.  3\nrd\n  835  (2001).      In Brown,  the  respondent  initially  accepted  a \nclaim and paid some compensation benefits.  However, at a pre-hearing conference the \nemployer controverted claimant’s entitlement to temporary partial disability benefits and \na hearing was scheduled.  Approximately one month before the scheduled hearing  the \nemployer  indicated  that  it  would  accept  the  temporary  partial  disability  and  pay \nappropriate benefits, but refused to pay an attorney fee on the temporary partial disability \nbenefits.  The Court of Appeals affirmed the Commission’s decision to award an attorney \nfee.  In doing so, the Court stated: \n  \n  The Commission interpreted the requirements of  \n  Section 11-9-715(a)(2)(B)(ii) to be that where an \n  employer controverts an injured employee’s entitle- \n  ment to certain benefits, but later accepts liability \n  prior to a hearing on the merits, the employee’s \n  attorney may still request a hearing for an attorney’s \n  fee on those controverted benefits.  The Commission \n  found that when there is no dispute that the employer \n\nKinne – H000742 \n \n12 \n \n  controverted benefits but then paid the benefits on \n  which an attorney fee is sought that the employee has \n  established an award of those benefits for purposes of \n  the employee’s attorney seeking an attorney’s fee  \n  under Ark. Code Ann. Section 11-9-715(a)(2)(B)(ii). \n  The Commission found no requirement in Section \n  11-9-715(a)(2)(B)(ii) requiring that an award of \n  controverted benefits must precede the employer’s \n  payment of benefits for the claimant’s attorney to \n  be entitled to a fee.  We agree and hold that the \n  Commission’s s findings are supported by substan- \n  tial evidence. \n \n \n The  Court  went  on  to  state  that  it  had  long  been  recognized  that  making  an \nemployer  liable  for  an  attorney  fee  serves  an  legitimate  social  purpose  such  as \ndiscouraging oppressive delay in recognition of liability, deterring arbitrary or capricious \ndenial of claims, and ensuring the ability of claimant’s to obtain adequate and competent \nlegal representation.  If the fundamental purpose of an attorney fee is to be achieved, it \nmust be considered that the real object is to place the burden of litigation expenses upon \nthe party which made it necessary.  Cleek v. Great Southern Metals, 335 Ark. 342, 981 \nS.W.  2d  529  (1998).    The  Court  went  on  to  note  that  if  the  claimant  in Brown  had  not \nemployed counsel to assist her, it was reasonable to conclude that her claim for temporary \npartial  disability  benefits  would  not  have  been  properly  presented  and  protected.  \nLikewise, in this case, if claimant had not employed counsel to assist him in approval of \nthe cervical spine surgery, it is reasonable to conclude that he would have never been \nentitled to temporary total disability benefits. \n Based upon the decision in Brown, I find that claimant’s attorney is entitled to an \nattorney fee on temporary total disability benefits which were paid as a result of claimant’s \ncervical spine surgery. \n\nKinne – H000742 \n \n13 \n \n While respondent contends that the decision in Brown is misplaced and contrary \nto the plain language of the statute, this administrative law judge is without authority to \ndisregard  or  ignore  prior  rulings  of  the  Arkansas  Court  of  Appeals  and  the  Full \nCommission. \n The final issue for consideration involves claimant’s attorney’s contention that she \nis entitled to a fee on any temporary total disability benefits which would arise out of the \nclaimant’s lumbar spine surgery which has been approved in this opinion.  Given the prior \ncontroversy  over  the  attorney  fee  on  temporary  total  disability  benefits  resulting  from \nclaimant’s cervical spine injury, this claim is understandable.  However, as of the date of \nthe hearing, claimant had not undergone the lumbar spine surgery and at this point is not \nentitled  to  temporary  total  disability  benefits.    However,  should  claimant  undergo  the \nlumbar spine surgery and become entitled to temporary total disability benefits, claimant’s \nattorney would be entitled to an attorney fee on payment of those temporary total disability \nbenefits. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe is entitled to lumbar spine surgery as recommended by Dr. Blankenship.  Claimant’s \nattorney is entitled to an attorney fee on temporary total disability benefits paid to claimant \nas a result of his cervical spine surgery.   \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $568.45. \n  \n\nKinne – H000742 \n \n14 \n \nIT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":23816,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H000742 DANIEL R. KINNE, Employee CLAIMANT CENTRAL STATES MFG., INC., Employer RESPONDENT SENTRY INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED MAY 11, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Ar...","outcome":"granted","outcomeKeywords":["granted:7"],"injuryKeywords":["neck","back","lumbar","cervical","strain"],"fetchedAt":"2026-05-19T23:07:32.601Z"},{"id":"alj-H008491-2023-05-11","awccNumber":"H008491","decisionDate":"2023-05-11","decisionYear":2023,"opinionType":"alj","claimantName":"Gregory Williams","employerName":"Mcilveene, Inc. D/b/a American Wholesale Glass","title":"WILLIAMS VS. MCILVEENE, INC. d/b/a AMERICAN WHOLESALE GLASS AWCC# H008491 MAY 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILLIAMS_GREGORY_H008491_20230511.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILLIAMS_GREGORY_H008491_20230511.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H008491 \n \nGREGORY WILLIAMS, EMPLOYEE   CLAIMANT \n \nMCILVEENE, INC. d/b/a  \nAMERICAN WHOLESALE GLASS, \nEMPLOYER                                                                                                 RESPONDENT  \n \nSTATE AUTOMOBILE MUTUAL \nINSURANCE COMPANY, INSURANCE CARRIER                                 RESPONDENT  \n \n \nOPINION FILED MAY 11, 2023 \n \nHearing before Administrative Law Judge  Steven Porch on May 9, 2023 in Little Rock, \nPulaski County, Arkansas. \n \nClaimant, pro se. \n \nThe Respondents were represented by Mr. William Roy Sanders, Attorney at Law, Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  filed  by \nRespondents.  A hearing on the motion was conducted on May 9, 2023, in Little Rock, \nArkansas.  Claimant, who is pro se, did not appear.  Respondents were represented at \nthe hearing by  Mr. William Roy Sanders, Attorney at Law, of Little Rock, Arkansas.  In \naddition to Respondent’s argument, the record consists of the Commission’s file–which \nhas been incorporated herein in its entirety by reference. \n The evidence reflects that per the First Report of Injury or Illness filed on February \n26, 2020, Claimant purportedly injured his  right knee/leg and other whole body at work \non October 24, 2020 when a board broke while he was standing on it.  According to Form \nAR-2  that  was  filed  on  November  6,  2020,  Respondents  accepted  this  injury  as \ncompensable and paid medical and indemnity benefits pursuant thereto.  At some point \n\nWILLIAMS – H008491 \n \n \n2 \nsoon after, Claimant hired legal counsel Laura Beth York at Rainwater, Holt and Sexton \nfirm,  who  filed  Form  AR-C,  asking  for  a  full  range  of  benefits on March 29,  2021.  \nHowever,  on  June  30,  2021,  Ms.  York  filed  a  Motion  to  Withdraw  from  this  case.  This \nrequest was granted. Since then, this case has been inactive until Respondents filed a \nMotion to Dismiss due to the lack of prosecution. A hearing was set for May 9, 2023, in \nLittle Rock, Arkansas on the Motion to Dismiss. The hearing took place as scheduled. \nAt the hearing and as previously stated, the Claimant did not appear and testify. \nRespondents argued for dismissal under Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission, and having had an opportunity to hear the sworn testimony of the Claimant, \nI  hereby  make  the following findings of fact and  conclusions  of  law  in accordance  with \nArk. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All parties received reasonable and timely notice of the Motion to Dismiss and the \nhearing thereon pursuant to AWCC R. 099.13. \n3. Respondents  did  prove  by  a  preponderance  of  the  evidence  that  Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, granted. \n \n \n \n\nWILLIAMS – H008491 \n \n \n3 \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A  claimant’s  testimony  is  never  considered  uncontroverted. Nix  v.  Wilson  World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).  The  determination  of  a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n At the hearing, it was argued that Claimant refused to show up to two previously \nscheduled depositions and has not engaged in the prosecution of this matter. I find this \nargument  has  merit. I  find  nothing  in  the  file  demonstrating  Claimant’s  willingness  to \nprosecute this matter. \n\nWILLIAMS – H008491 \n \n \n4 \n After consideration of all the evidence, I find that Claimant and Respondents were \ngiven reasonable notice of the Motion to Dismiss hearing under Rule 13. I further find that \nClaimant has abridged this rule. Thus I find Respondent’s Motion to Dismiss should be \ngranted without prejudice. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby granted without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5581,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H008491 GREGORY WILLIAMS, EMPLOYEE CLAIMANT MCILVEENE, INC. d/b/a AMERICAN WHOLESALE GLASS, EMPLOYER RESPONDENT STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, INSURANCE CARRIER RESPONDENT OPINION FILED MAY 11, 2023 Hearing before Administrative Law Judge Steven...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:07:34.662Z"},{"id":"alj-H102851-2023-05-10","awccNumber":"H102851","decisionDate":"2023-05-10","decisionYear":2023,"opinionType":"alj","claimantName":"Michael Mitchell","employerName":"Jet Asphalt & Rock Co., Inc","title":"MITCHELL VS. JET ASPHALT & ROCK CO., INC. AWCC# H102851 MAY 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MITCHELL_MICHAEL_H102851_20230510.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MITCHELL_MICHAEL_H102851_20230510.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H102851 \n \nMICHAEL W. MITCHELL,   \nEMPLOYEE                                             CLAIMANT \n                                           \nJET ASPHALT & ROCK CO., INC.,   \nEMPLOYER                                          RESPONDENT \n \n \nNAT’L FIRE INS. CO. OF HARTFORD/ \nCNA INS. CO.,   \nINS CARRIER/TPA                                    RESPONDENT \n \n           \nOPINION AND ORDER FILED MAY 10, 2023 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative Law Judge (ALJ) Mike Pickens, on February 9, 2023, in El Dorado, Union County, \nArkansas. \n \nThe  claimant  was  represented  by  the  Honorable Gregory  R.  Giles,  Moore,  Giles  &  Matteson, \nTexarkana, Miller County, Arkansas.   \n \nThe respondents were represented by the Honorable Karen H. McKinney, The Barber Law Firm, \nLittle Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \n \n     In  the  Amended  Prehearing  Order  filed  November  28,  2023,  the  parties  agreed  to  the \nfollowing stipulations:   \n1. The   Arkansas   Workers’   Compensation   Commission   (the   Commission)   has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  with  the  claimant  at  all \nrelevant times, including May 2, 2019, when the claimant sustained a compensable \ninjury  to  his  left  arm  for  which  the  respondents  paid  medical  and  indemnity \nbenefits. The claimant alleges he also sustained a “compensable injury”  to  his \nthoracic spine on this same date, May 2, 2022. \n                                                     \n3.   The claimant’s average weekly wage  (AWW)  was  $794.18,  which  would  entitle \nhim to weekly indemnity rates of $529.00 for temporary total disability (TTD), and \n$397.00  for  permanent  partial  disability  (PPD)  benefits  if  his  claim  is  deemed \ncompensable. \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n2 \n \n4. The respondents controvert the claimant’s alleged upper back/thoracic spine injury \nin its entirety. \n \n5. All parties specifically reserve any and all other issues for future determination \n            and/or hearing.                                                \n(Commission Exhibit 1 at 1-2; Hearing Transcript at 5-6). Pursuant to the parties’ mutual \nagreement the issues litigated at the hearing were:   \n1. Whether the claimant sustained a “compensable injury” to his thoracic spine within \nthe  meaning  of  the Arkansas’ Workers’ Compensation Act (the Act)  on  May  2, \n2019. \n \n2. If the claimant’s alleged upper back/thoracic spine injury is deemed compensable, \nthe extent to which he is entitled to medical, TTD, and PPD benefits. \n   \n3.       Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. at 5-6). Note the claimant withdrew his contention that he also sustained \na compensable injury to his ribs as a result of the subject May 2, 2019, work incident. (Comms’n \nEx. 1 at 2; T. 5).   \n The claimant contends he sustained a compensable injury to his upper back/thoracic spine \non May 2, 2019. He contends the medical treatment he has had on his thoracic spine/upper back is \nrelated to and reasonably necessary for treatment of his upper back/thoracic spine injury and the \nrespondents should be ordered to pay for it. He contends the respondents should be responsible for \npayment of his treatment at the Veterans’ Administration Hospital (VA), for which the VA is \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n3 \nseeking reimbursement from him, as well as any and all payments Blue Cross/Blue Shield (BCBS) \nhas  made  for  his  medical  treatment  and/or  related  expenses  for  which  BCBS  is  seeking \nsubrogation.  The  claimant  further  contends  he  is  entitled  to  additional  reasonably  necessary \nmedical treatment related to his upper back/thoracic spine injury; to TTD benefits from on or about \nJuly  9,  2019,  until  he  reached  maximum  medical  improvement  (MMI)  on  or  about  October  21, \n2021; and to PPD benefits based on a permanent anatomical impairment rating of at least 13% (not \n12% as he contended in the amended prehearing order) pursuant to the applicable AMA Guides to \nthe Evaluation of Permanent Impairment (American Medical Association 4\nth\n Edition) (the AMA \nGuides). Finally, the claimant contends he is entitled to wage loss disability benefits in excess of \nany permanent impairment rating; and that his attorney is entitled to a controverted attorney’s fee \nbased on any and all indemnity benefits the Commission may award him. The claimant specifically \nreserves any and all other issues for future litigation and/or determination. (Comms’n Ex. 1 at 2-\n3; T. 5-6). \n The respondents contend the claimant has received all benefits to which he is entitled by \nlaw for the subject May 2, 2019, work incident. The respondents contend the claimant’s thoracic \ndisc  herniation  diagnosed  in  December  2020  is  not  causally  related  to  the  minor  compensable \ninjury of May 2, 2019, and therefore, the claimant cannot meet his burden of proof pursuant to the \nAct in demonstrating he sustained a “compensable injury” to his thoracic spine. The respondents \ncontend further that if the claimant’s upper back/thoracic spine injury is deemed compensable he \nis entitled to a six percent (6%) permanent anatomical impairment rating for a two (2)-level fusion \npursuant  to  the  applicable AMA  Guides.  The  respondents  specifically  reserve any  and  all  other \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n4 \nissues for future litigation and/or determination. (Comms’n Ex. 1 at 3; T.6).   \n     The  record  herein  consists  of  the  hearing  transcript,  and  any  and  all  exhibits  contained \ntherein and attached thereto. \n               STATEMENT OF THE CASE \nThe claimant, Mr. Michael W. Mitchell (the claimant), was 60 years old at the time of the \nhearing, was 57 years old at the time of the subject work incident, Thursday, May 2, 2019. On that \nday the claimant was working as a yard man for Jet Asphalt. His primary job duties were keeping \nthe plant clean and mowed. The claimant testified that on May 2, 2019, the plant was shut-down \nfor maintenance, and he and co-workers were moving a three (3)-foot by six (6)-foot metal plate \nto inspect it for damage when the plate fell on him, knocking him to the ground, pinning his right \narm against his chest and neck. A co-worker lifted the metal plate off of him, while another co-\nworker  pulled  him  out  from  under  the  plate.  The  claimant  testified  his  sternum  was  hurting,  he \nthought  he  may  have  cracked  a  rib,  and  he  had  some  scrapes  on  his  left  arm  and  back.  The \nclaimant’s supervisor immediately took him to the doctor who conducted a physical examination \nand  ran  some  diagnostic  tests  including  CT  scans  and  X-rays.  The  claimant  testified  that  after \nreviewing the diagnostic test results the doctor did not find anything wrong with him, and released \nhim to return to work the following Monday, which would have been May 5, 2019. The claimant \ndenied he was experiencing any back pain at that time. The claimant had been treated for a hernia \nin the past and was experiencing pain similar to pain he had experienced in the past when he had \na hernia. Medical records indicate the claimant sought treatment for this pain in June 2019, and his \ndoctor took him off work for these hernia complaints from 6/19/2019 through 6/24/2019, and again \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n5 \nfrom 6/24/2019 through 7/9/2019. Thereafter, when the claimant returned to work, he was offered \nwork as a flagger on a road crew, but he refused to perform this work because he said he could not \nsee well enough to do the job. He then was terminated for insubordination. (T. 15-41; Claimant’s \nExhibit 1 at 2-15). \nThereafter,  the  claimant  did  not  see  a  doctor  again  until  July  15,  2020,  when  he  sought \ntreatment  for  a  pulled  groin  muscle  and  hypogastric  abdominal  pain  (abdominal  pain  below  his \nstomach) at the Dallas County Medical Center. (CX1 at 19-21). He next sought treatment at the \nVeterans’ Administration Hospital (VA)  on  January  28,  2020,  through  December  21,  2020,  for \ncomplaints of pain in his right testicle and right breast. At the first VA visit in January 2020, the \nclaimant  mentioned  the  subject  work  incident  to  his  treating  physician,  stating  his  right-sided \nabdominal and pelvic pain had been hurting since the May 2019 work incident. An abdominal and \npelvic CT scan revealed no acute bone fractures and, “No acute findings in the abdomen or pelvis; \nhowever, the CT scan did reveal some abnormalities in the claimant’s left hip, “consistent with \npossible femoral acetabular impingement syndrome.” A radiology report dated March 25, 2021, \nnoted some abnormalities in the claimant’s left hip including, “Incidental note is made of a T1 \nhypointense lesion in the left ilium most compatible with a bone island.” (CX1 at 22-39; 25-27). \nAn MRI of 11/05/2020, revealed, “no acute fracture or dislocation” in the claimant’s right hip, as \nwell  as  mild  degenerative  changes,  but  no  acute  fracture  or  dislocation.  (CX1  at  28).  A  METS \nbone  scan  of  12/21/2020  was  compared  with  an  MRI  of  the claimant’s thoracic spine dated \n12/02/2020, and a CT scan of his abdomen and pelvis dated 11/12/2020, and all of the bone scan \nfindings were deemed to be, “suggestive of degenerative changes.” (CX1 at 39).  \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n6 \nOn  February  8,  2021,  the  claimant  saw  Dr.  Matthew  Helton,  a  neurology/neurosurgical \nresident  at  the  University  of  Arkansas  for  Medical  Sciences  (UAMS),  complaining  of  right  hip \npain, and a hernia he believed developed a month or so after the May 2019 work incident; and he \ncomplained of problems walking, of stumbling, and progressive pain in the area of his groin and \nright testicle. (CX1 at 40). After seeing some other physicians at UAMS he came under the care \nof Dr. Thomas G. Pait, the chief of neurosurgery who ordered an MRI that revealed, “a large disc \nherniation at the mid-lower thoracic spine with compression of the spinal cord...a T10-T11 disc \nherniation spinal cord compression and myelomalacia”, which is a softening of the spinal cord \nbelow  the  area  of  a  spinal  cord  compression  from  a  lesion  or  herniation.  (CX1  at  42-43).  The \nUAMS physicians also noted degenerative changes in the claimant’s cervical and thoracic spine. \n(CX1 at 62-63). The UAMS physicians ultimately diagnosed the claimant with a herniation of the \nT10-11 interveterbral disc of this thoracic spine with resulting myelopathy, and on May 11, 2021, \nDr.  Pait.  performed  surgery  to  decompress the  herniated  thoracic  disc,  as  well  as  to  fuse  levels \nT10-12; and he continued follow-up of the claimant through November 24, 2021. (CX1 at 67-238). \nIn a letter to the claimant’s attorney dated February 22, 2022, Dr. Pait opined: \n     Within a reasonable degree of medical certainty, the trauma [from the \n     May 2, 2019, work incident] did not cause the calcification of the inter- \n     vertebral disc. Disc calcification is the accumulation of calcium phosphate \n     dehydrate or hydroxyapatite crystals in the nucleus pulposus of the disc. It \n     takes many years for the calcification to develop. The trauma did not cause   \n     the calcification of the disc; however, the trauma may have aggravated a pre- \n     existing problem.      \n \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n7 \n(CX1 at 239) (Bracketed material added).   \n     By letter dated March 3, 2022, to Dr. Wayne Bruffett, the claimant’s attorney requested that \nDr. Bruffett perform an independent medical evaluation (IME) of the claimant in order to address \nthe causation of the claimant’s herniated thoracic disc,  and  to  determine  the  percentage  of  the \nclaimant’s permanent anatomical impairment, if any, related to the disc herniation and Dr. Pait’s \nsurgery. (CX1 at 240-241). Dr. Bruffett performed the IME on April 4, 2022. (CX1 at 242-247). \nDr. Bruffett stated it was his opinion “within a reasonable degree of medical certainty the herniated \nthoracic disc that was calcified was rendered symptomatic as a consequence of the May 2, 2019 \naccident.” (CX1 at 246). Dr. Bruffett assigned the claimant a 13% to the body-as-a-whole (BAW) \npermanent anatomical impairment rating based on a two (2)-level fusion with residual symptoms. \n(CX1 at 247). Thereafter, the respondents requested and the parties took Dr. Bruffett’s evidentiary \ndeposition which, along with other testimony and evidence relevant to my decision herein will be \nexamined in greater detail in the, “Discussion” section of this opinion, infra.   \n     The  claimant  testified  he  is  incapable  of  being  trained  to  do  any  other  job.  He  agreed  he \nworked for over nine (9) or ten (10) different employers to include the military, Potlatch, Hole-in-\nOne, International Paper, Idaho Lumber, and Jet Asphalt. He agreed that he had to be trained by \neach of his  employers  as to how to do the jobs he was hired to perform.  When  asked on cross-\nexamination about the gap in his  employment at  Potlatch, the claimant readily admitted he was \nincarcerated  from  1995  to  1997  for  sexual  abuse,  which  he  further  conceded  was  in  fact  child \nmolestation. The claimant also admitted that after being released from prison, he was sent back for \na parole violation for drinking and being in a prohibited location. The claimant admitted that in \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n8 \nthe past he had a problem with drugs and alcohol. He further admitted that in addition to quitting \nJet Asphalt over a dispute at work, he also quit his job at Hole-in-One over a disagreement with \nhis employer rather than face termination. (T. 62-85). \n     The  claimant  filed  for  and  started  receiving  Social  Security  disability  (SSD)  benefits  in \n2021.  In  addition  to  his  left  leg  foot  drop,  the  claimant  testified  that  he  has  pain,  dizzy  spells, \nmemory loss, and balance issues. He testified that he cannot bend or twist or move like he used to. \nHe said he is able to vacuum, do the dishes, clean the kitchen and do the laundry. He is also able \nto mow his yard with a zero (0)-turn mower. The claimant has a current driver’s license and is able \nto drive and operate a vehicle safely. He has not attempted to seek any employment or to return to \nwork since Dr. Pate released him. (T. 84-108).   \n     The claimant described two (2) previous back injuries. The first injury occurred around 2010 \nwhile he was working for Hole-in One when he was lifting a 50-pound box and he pulled a muscle \nin his back for which he received a few weeks of chiropractic treatment. The claimant sustained \nanother  back  injury  in  2011  while  moving  furniture  at  his  house.  He  testified  that  other  than \nrequiring a few muscle relaxers from that injury, he was fine. The claimant testified he recovered \nfrom both those back injuries, and that he never had any significant injuries or problems with his \nback since. The claimant admitted he broke his leg in 2015, which caused him to miss work. (T. \n58-60; 86). \n     When questioned about Respondents’ Exhibit 2 – a photograph the claimant posted on his \nFacebook page dated July 2, 2017, which shows him laying on a hospital bed – he testified he had \na wreck while test-driving a motorcycle when the front brake or wheel locked up resulting in the \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n9 \nhis  being  thrown  from  the  motorcycle.  As  the  claimant  described  the  incident  on  his  Facebook \npost: “This is why I sold my bike. Test-drove a 1985 Honda Shadow 750. Front brakes locked up \nand I ate the blacktop. Broke 3 ribs and had awesome road rash.” (RX2 at 1-2; T. 87). The claimant \ndenied any injury to his back or spine from this motorcycle accident and claimed he did not miss \nany  time  from  work  because  he  was  already  on  vacation.  (RX2  at  1-2;  T.86-89).  But  Ms.  Lisa \nWoolsey, Jet Asphalt’s manager, testified the claimant was off work for three (3) weeks on medical \nleave, not vacation, after the motorcycle wreck. (T. 131). There is no evidence the claimant told \neither Dr. Pait or Dr. Bruffett about this motorcycle accident where he broke (3) ribs. Finally, the \nclaimant  testified  that  all  his  prior  employment  experience  was  labor  intensive  and  he  did  not \nbelieve he could perform this type of work any longer. (T. 58-60; RX2 at 1-2; T. 86-89).   \n                             DISCUSSION \nThe Burden of Proof \n     When deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord as a whole, whether the party having the burden of proof on the issue has established it by \na  preponderance  of  the  evidence. Ark.  Code  Ann. §  11-9-704(c)(2)  (2023  Lexis  Replacement). \nThe  claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  he  is  entitled  to \nbenefits. Stone  v.  Patel, 26  Ark.  App.  54,  759  S.W.2d  579  (Ark.  App.  1998). Ark.  Code  Ann. \nSection 11-9-704(c)(3) (2023 Lexis Repl.) requires the ALJ, the Commission, and the courts “shall \nstrictly construe” the Act, which also requires them to read and construe the Act in its entirety, and \nto harmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n10 \n899  (Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2023 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987).  \n     All claims for workers’ compensation benefits must be based on proof. Speculation  and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Dena Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.   \nThe  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n11 \nCompensability of the claimant’s alleged thoracic spine injury \n     The threshold question to be decided in this case is whether the claimant has met his burden \nof proof in demonstrating he sustained a compensable injury within the Act’s definition to his \nlumbar spine. For any specific incident injury to be compensable, the claimant must prove by a \npreponderance of the evidence that his injury: (1) arose out of and in course of his employment; \n(2) caused internal or external harm to her body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence. Ark.  Code  Ann.  §  11-9-102(4); \nCossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, 687 (Ark. \nApp. 2009). The claimant bears the burden of proving the compensable injury by a preponderance \nof the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.   \n     Moreover, the claimant must prove a causal relationship exists between her employment and \nthe alleged injury. Wal-Mart Stores, Inc., v. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, \n892 (Ark. App. 2002) (citing McMillan v. U.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 \n(Ark.  App.  1997).  Objective  medical  evidence  is  not  always  essential  to  establish  a  causal \nrelationship  between  the  work-related  accident  and  the  alleged  injury  where  objective  medical \nevidence exists to prove the existence and extent of the underlying injury, and a preponderance of \nother nonmedical evidence establishes a causal relationship between the objective findings and the \nwork-related  incident  in  question. Flynn  v.  Southwest  Catering  Co.,  2010  Ark.  App.  766,  379 \nS.W.3d 670 (Ark. App. 2010).     \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n12 \n     “Objective findings” are those findings which cannot come under the voluntary control of the \npatient. Ark. Code Ann. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, at \n80, 250 S.W.3d 263, at 272 (Ark. App. 2007). Objective findings “specifically exclude subjective \ncomplaints or findings such as pain, straight-leg-raising tests, and range-of-motion tests.” Burks v. \nRIC, Inc., 2010 Ark. App. 862 (Ark. App. 2010).   \n      It is a black letter principle of workers’ compensation law that an employer takes the \nemployee  as  he  finds  him;  and  an  employment-related  incident  that  aggravates  a  preexisting \ncondition(s)  is  (are)  compensable. Heritage  Baptist  Temple  v.  Robison,  82  Ark.  App.  460,  120 \nS.W.3d  150  (Ark.  App.  2003).  Stated  another  way,  a  preexisting  disease  or  infirmity  does  not \ndisqualify  a  claim  if  the  work-related  incident  aggravated,  accelerated,  or  combined  with  the \ndisease  or  infirmity  to  produce  the  disability  for  which  the  claimant  seeks  benefits. Jim  Walter \nHomes  v.  Beard,  82  Ark.  App.  607,  120  S.W.3d  160  (Ark.  App.  2003).  The  aggravation  of  a \npreexisting, otherwise non-compensable condition by a compensable injury is itself compensable. \nOliver v. Guardsmark, 68 Ark. App. 24, 3 S.W.3d 336 (Ark. App. 1999). An aggravation is a new \ninjury  resulting  from  an  independent  incident. Crudup  v.  Regal  Ware,  Inc.,  341  Ark.  804,  20 \nS.W.3d 900 (Ark. App. 2000) (Emphasis added). Of course, since it is a new injury resulting from \nan independent cause, any alleged aggravation of a preexisting condition must meet the Act’s \ndefinition of a “compensable injury” in order for the claimant to prove compensability. Farmland \nIns. Co. v. Dubois, 54 Ark. App. 141, 923 S.W.2d 883 (Ark. App. 1996). \n      Concerning the proof required to demonstrate the aggravation of a preexisting condition, our \nappellate courts have consistently held that since an aggravation is a new injury, a claimant must \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n13 \nprove it by new objective evidence of a new injury different than the preexisting condition. Vaughn \nv. Midland School Dist., 2012 Ark. App. 344 (Ark. App. 2012) (citing Barber v. Pork Grp., Inc., \n2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. 130, 382 \nS.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 (Ark. App. \n2010). Where the only objective findings present are consistent with prior objective findings or \nconsistent with a long-term degenerative condition rather than an acute injury, this does not satisfy \nthe  objective  findings  requirement  for  the  compensable  aggravation  of  a  preexisting  condition \ninjury. Vaughn, 2012 Ark. App. 344, at 6 (holding that Arkansas courts have interpreted the Act \nto require “new objective medical findings  to  establish  a  new  injury  when  the  claimant  seeks \nbenefits  for  the  aggravation  of  a  preexisting  condition”); Barber,   supra   (affirming   the \nCommission’s denial of an aggravation of a preexisting condition claim where the MRI findings \nrevealed a degenerative condition, with no evidence of, and which could not be explained by, an \nacute injury) (Emphases added).   \n     Based on the law as applied to the applicable facts of this case, I find the claimant has failed \nto  meet  his  burden  of  proof  in  demonstrating  his  thoracic  spine  condition  constitutes  a \n“compensable injury” within the Act’s meaning, for the following reasons. \n     First, while a medical opinion stated within a reasonable degree of medical certainty is not \nnecessary to prove causation, in a case such as this one where the claimant had two (2) previous \nback injuries and other medical issues that he apparently believed were the cause of his pain – and \nhe broke his leg, and had an apparently rather significant motorcycle accident where he broke three \n(3)  ribs  (and,  of  course,  the  rib  bones  are  connected  to  the  thoracic  spine) –  a  medical  opinion \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n14 \nconcerning  causation  is  necessary.  This  is  especially  true  where  the  record  is  devoid  of  any \nevidence the claimant told either Dr. Pait or Dr. Bruffett about the 2017 motorcycle accident in \nwhich he, “ate the asphalt...broke three ribs and had awesome road rash.” In light of this incident \nand  the  fact  that  neither  Drs.  Pait  nor  Bruffett  were  told  about  it,  it  would  constitute  sheer \nspeculation and conjecture to relate the preexisting thoracic spine condition (which was calcified \nproving the objective medical evidence of injury was preexisting) to the subject work incident of \nMay 2, 2019. Dena, supra. The respondents introduced prior medical records that confirmed the \nclaimant did in fact have back pain and lumbar spasms which required medical treatment. Before \nthe work incident. These medical records further  show, as he testified, the claimant would seek \nmedical treatment when he had a medical issue or pain. \n     Second,  and  significantly,  neither  Dr.  Pait  or  Dr.  Bruffett  were  able  to  provide  an  opinion \nconcerning  causation  that  meets  the  standards  required  by  the  Act  and  applicable  case  law.nIn \nresponse to the claimant’s attorney’s inquiry, in his letter dated February 22, 2022, Dr. Pait was \nunable to provide the requisite opinion. (CX1 at 239, and supra). \n \n   In his deposition the claimant’s chosen IME physician, Dr. Bruffett, concluded the claimant’s \nherniated thoracic disc calcified well before the May 2, 2019, work incident. Dr. Bruffett related \nthe claimant’s symptoms to the May 2, 2019 accident based upon the claimant’s history of no \nsymptoms before the accident and then complaining of symptoms after the accident. Dr. Bruffett \ntestified he would have anticipated the claimant to have symptoms from the accident “pretty quick” \nafter it occurred. Dr. Bruffett defined “pretty quick” to be “days or a few weeks.” When claimant’s \ndeposition testimony of how he felt immediately after the accident was read to Dr. Bruffett, Dr. \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n15 \nBruffett testified that claimant’s complaints following  the  subject  work  incident  did  not  elicit \nconcern for a thoracic disc herniation. Dr. Bruffett’s deposition does not meet the Act’s standards \nthat a medical opinion concerning causation must be stated within a reasonable degree of medical \ncertainty.  If  anything, Dr. Bruffett’s evidentiary deposition testimony deposition  demonstrates, \nonce  again,  that  it  would  constitute sheer speculation and conjecture to attribute the claimant’s \nherniated thoracic disc to the subject May 2, 2019, work incident. (Respondents’ Exhibit 3).        \n     Finally, Jet Asphalt’s manager, Ms. Lisa Woolsey, was a demonstrably credible and articulate \nwitness. She testified the claimant returned to work for Jet Asphalt on Monday, May 6, 2019 and \nhe continued to work until he was taken off work by his doctor on June 19, 2019. Ms. Woolsey \ndescribed  two  (2)  separate  conversations  she  had  with  the  claimant  after  the  May  2019  work-\nrelated  incident.  Directly  and  credibly  contradicting the  claimant’s  testimony,  Ms.  Woolsey \ntestified the claimant brought the weekly paperwork from the Fordyce plant to the El Dorado office \non two (2) separate occasions between his return to work after the subject incident and the date he \nquit  because  he  would  not  perform  the  light  duty  flagging  job.  Ms.  Woolsey  testified  that  the \nFordyce plant only had three (3) employees and that at times the claimant would be required to \ntake  the  paperwork  to  El  Dorado  when  the  other  two  (2)  employees  were  busy.  During  both  of \nthose brief visits, Ms. Woolsey engaged the claimant in conversation regarding the May 2019 work \nincident and asked him how he was doing. She testified the claimant joked about having a hard \nhead  and  advised  that  he  was  doing  fine.  Ms.  Woolsey  also  described  her  encounter  with  the \nclaimant when he personally brought in the off-work slip from his primary care physician (PCP) \ntaking him off work on June 19, 2019. Ms. Woolsey testified that the claimant reported to her that \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n16 \nhe had to be off work for a muscle in couple of weeks because he pulled his groin area and had a \nhernia. He told her he had done that several times before and assured her that he was going to be \nokay. And, again, significantly the claimant’s motorcycle wreck, Ms. Woolsey testified after the \nJuly 2017 motorcycle accident in which the claimant broke three (3) of his ribs, he was in fact off \nwork for three (3) weeks following that accident. Ms. Woolsey explained that the claimant took \nmedical leave for the entire three (3) weeks and that he was not on vacation as employees are only \nallowed two (2) weeks of vacation, and that it must be taken during the two (2) weeks in December \nthe plant is in shutdown each year. Ms. Woolsey confirmed the claimant had taken off work right \nbefore his accident to visit a member of his wife’s family who was ill, but it was not his two (2)- \nweek vacation, just a few days to travel to Missouri and back. On cross-examination, Ms. Woolsey \ntestified the only injuries she could ascertain the claimant sustained to his back on May 2, 2019, \nwere from the scratches and bruises. (T. 120-132).   \n    Therefore, based on the applicable law as applied to the facts of this case, I hereby make the \nfollowing:  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The  stipulations  contained  in  the  Amended  Prehearing  Order  filed  November28, \n2022, to which the parties agreed and affirmed on the record at the hearing hereby \nare accepted as facts.   \n \n2. The claimant has failed to meet his burden of proof in demonstrating he sustained \na “compensable injury” within the Act’s specific meaning to his thoracic spine as a \nresult of the May 2, 2019, work incident. \n\nMichael W. Smith, AWCC No. H102851 \n \n \n \n17 \n \n3. Therefore,  the  other  issues  litigated  at  the  hearing  concerning  the  claimant’s \nentitlement  to  additional  medical  care  for  his  thoracic  spine  condition;  to  the \npayment  of  additional  TTD  benefits;  PPD  benefits  based  on Dr. Bruffett’s 13% \nBAW  permanent  anatomical  impairment  rating;  as  well  as  wage  loss  disability \nbenefits in excess of Dr. Bruffett’s impairment rating are rendered moot. \n \n4. The claimant’s attorney is/is not entitled to a controverted attorney’s fee on these \nfacts. \n \n      Therefore, for all the aforementioned reasons, this claim is hereby respectfully denied and \ndismissed. If they have not already done so the respondents shall pay the court reporter’s fee within \ntwenty (20) days of their receipt of this opinion and order. \nIT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":32690,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H102851 MICHAEL W. MITCHELL, EMPLOYEE CLAIMANT JET ASPHALT & ROCK CO., INC., EMPLOYER RESPONDENT NAT’L FIRE INS. CO. OF HARTFORD/ CNA INS. CO., INS CARRIER/TPA RESPONDENT OPINION AND ORDER FILED MAY 10, 2023 Hearing conducted before the Arkansas Workers’ Co...","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:1","granted:1","denied:3"],"injuryKeywords":["thoracic","back","neck","hernia","hip","fracture","cervical","herniated"],"fetchedAt":"2026-05-19T23:07:26.262Z"},{"id":"alj-G903654-2023-05-10","awccNumber":"G903654","decisionDate":"2023-05-10","decisionYear":2023,"opinionType":"alj","claimantName":"Kaitlyn Iglehart","employerName":"City Of Jonesboro","title":"IGLEHART VS. CITY OF JONESBORO AWCC# G903654 & H208271 MAY 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/IGLEHART_KAITLYN_G903654_H208271_20230510.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"IGLEHART_KAITLYN_G903654_H208271_20230510.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G903654 & H208271 \n \nKAITLYN M. IGLEHART,  \nEmployee                                                                                             CLAIMANT \n \nCITY OF JONESBORO,  \nEmployer                                                                                        RESPONDENT \n \nMUNICIPAL LEAGUE WC PROGRAM, \n Insurance Carrier / TPA                                                                RESPONDENT \n \n \nOPINION FILED MAY 11, 2023 \nHearing before Administrative Law Judge Steven Porch on April 14, 2023, in Jonesboro, \nCraighead County, Arkansas. \n \nClaimant was represented by Phillip J. Wells, Attorney at Law, Jonesboro, Arkansas. \n \nRespondents are represented by Mary K. Edwards, Attorney at Law, North Little Rock, \nArkansas.  \n \nI.  BACKGROUND \n These  matters  came  before  the  Commission on  April  14,  2023,  on  the \ncompensability of two work-related injuries in Jonesboro, Arkansas. Testimony was taken. \nThe  evidentiary  record  consists  of  both  Respondents’  and  Claimant’s  exhibits, oral \nargument,  Claimant’s  testimony,  and  post-hearing  briefs.  Without  objection,  the  two \nCommission files have been incorporated herein by reference in their entirety. \n A prehearing conference was conducted on February 15, 2023, and a Prehearing \nOrder was filed on February 22, 2023.  A copy of the Prehearing Order has been marked \nas Commission’s Exhibit #1 and made a part of the record without objection. \nBy mutual agreement of the parties, the stipulations applicable to this claim are as \nfollows: \n\nIGLEHART – G903654 & H208271 \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claims. \n2. The employer/employee/carrier-TPA relationship existed on May 4, 2019, \nand February 5, 2022, when the Claimant sustained a compensable lower \nback/lumbar spine injury on May 4, 2019, (G903654), and a compensable \nright  shoulder  injury  on  February  5,  2022,  (H208271)  for  which  the \nRespondents paid both medical and indemnity benefits. \n3. The Claimant’s average weekly wage (AWW) is $748.50, which is sufficient \nto entitle her to weekly compensation rates of $499.00 for temporary total \ndisability (TTD), and $374.00 for permanent partial disability (PPD) benefits \nif the claimant’s alleged lower back/lumbar spine injury of February 5, 2022, \nis deemed compensable. \n4. The Respondents controvert only the Claimant’s alleged lower back/lumbar \nspine injury of February 5, 2022. \n5. The parties specifically reserve any and all other issues for future litigation \nand/or determination. \n By mutual agreement of the parties, the issues to be litigated at the hearing are as \nfollows: \n1. Whether  the  Claimant  also  sustained  a  compensable  injury  within  the \nmeaning of the Arkansas Workers’ Compensation Act (the Act) to her lower \nback/lumbar spine on February 5, 2022. \n \n\nIGLEHART – G903654 & H208271 \n3 \n \n2. If the Claimant’s alleged injury is deemed compensable, the extent to which \nshe is entitled to medical and indemnity benefits. \n3. Whether the Claimant’s attorney is entitled to a controverted fee on these \nfacts. \n4. The parties specifically reserve any and all other issues for future litigations \nand/or determination. \n The  Claimant’s  and  Respondents’  contentions  are  set  out  in  their  respective \nresponse to the prehearing questionnaire. Said contentions are as follows: \n Claimant:  The Claimant contends she sustained a fall during the course of her \nemployment on February 12, 2022. The Claimant further contends that the fall resulted in \na disc injury to her lumbar spine resulting in lumbar disc surgery. \nThe Claimant further contends the  Respondents should be deemed liable for \npayment of any and all of her related, reasonably necessary medical treatment and \nassociated expenses, including but not limited to mileage, etc.; to TTD benefits from \nDecember 7, 2022, through the date she reached maximum medical improvement (MMI) \non or about February 10, 2023; and eventually to appropriate PPD benefits. The Claimant \nreserves any and all other issues for future determination and/or litigation. \n Respondent:  The  Respondents  contend  the  Claimant  filed  a  workers’ \ncompensation claim for a fall on February 5, 2022. They accepted the Claimant’s right \nshoulder as compensable and paid related, reasonably necessary medical benefits. The \nClaimant now contends she also injured her lower back/lumbar spine in this fall. The \nRespondents contend the Claimant cannot meet her burden of proof pursuant to the Act \nin demonstrating by a preponderance of the credible evidence that she sustained a \n\nIGLEHART – G903654 & H208271 \n4 \n \ncompensable lower back/lumbar spine injury on February 5, 2022. The Claimant has a \nhistory of lower back problems dating back to a prior workers’ compensation injury she \nsustained in a motor vehicle accident (MVA) on May 4, 2019. The Respondents contend \nthat any problems the Claimant is currently experiencing are related to this prior injury \nand are the result of the February 5, 2022, fall. The Respondents reserve the right to file \nan amended response to the prehearing questionnaire or other appropriate pleading, and \nto allege any further affirmative defense(s) that might be available upon the completion \nof any and all necessary and appropriate discovery. Finally, the Respondents reserve all \nother issues for future determination and/or litigation. \n The  record  reflects  the  following  history:   The  Claimant  alleges,  under  claim \nnumber  G903654,  that  she  has  sustained  a  compensable  injury  to  her  whole  body \nincluding her lower back resulting from a specific incident on May 4, 2019. There an \nunderage and unlicensed driver struck Claimant’s patrol car. Respondents allege that this \nclaim was not filed within the statute of limitations deadline.  \nClaimant also had a second claim, claim #H208271, where she alleges, she has \nsustained a compensable injury to her right shoulder, elbow, and wrist resulting from a \nspecific incident on February 5, 2022. There Claimant slipped on ice and fell onto the curb \nas she was heading to her patrol car to go on a work-related call. The Respondents \naccepted, as a medical only claim, Claimant’s injuries to her right shoulder, elbow, and \nwrist. However, during the full hearing, Claimant further alleged that she also injured her \nback during the February 5, 2022, incident. The injury to Claimant’s back was not noted \non her Form AR-1 filed on November 23, 2022, but was noted on her Form AR-C filed on \nNovember 22, 2022. The Respondents have controverted Claimant’s claim for her lower \n\nIGLEHART – G903654 & H208271 \n5 \n \nback injury on grounds that this was a pre-existing injury since the May 4, 2019, car \naccident. Respondents further state that Claimant’s spine has a degenerative disease \nand there is a lack of objective findings to substantiate an award for her lower back injury.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthese claims. \n2. Claim #G903654 was not filed with the Commission until after the statute of \nlimitations has passed. Thus, I find Claim #G903654, the May 4, 2019, \nincident is time-barred.  \n3. The  Commission  further  finds,  by  the  preponderance  of  evidence,  that \nClaimant’s back injury sustained on February 5, 2022, claim #H208271, is \ncompensable.  Respondents  shall  pay  for  the  medical  treatment  for \nClaimant’s back injury and pay all indemnity benefits due Claimant from \nDecember  7,  2022,  to  February  10,  2023.  Respondents  shall  pay  all \nbenefits consistent with this opinion. \n4.        The Claimant is entitled to Temporary Total Disability at a rate of $539.00 \nand  Permanent  Partial  Impairment  benefits  at  a  rate  of  $404.00.  The \nClaimant is entitled to medical benefits and services for her injury until \nClaimant reaches maximum recovery. \n \n \n\nIGLEHART – G903654 & H208271 \n6 \n \nIII.  DISCUSSION \n At the start of the April 14, 2023, full hearing, we first addressed the issue of the \nStatute  of  Limitations  for  case  #G903654,  the  May  4,  2019,  vehicle  collision  claim. \nClaimant’s counsel, Phillip Wells, conceded that the statute of limitations has run, and it \nshould be dismissed. All parties agreed, and I ruled from the bench that Claim #G903654 \nwas time-barred. And in this opinion, for clarity, I again find that case #G903654 is time-\nbarred. Under Ark. Code Ann. §11-9-702(b)(1) (Repl. 2012):  \nIn cases in which any compensation, including disability or medical, has \nbeen paid on account of injury, a claim for additional compensation shall be \nbarred unless filed with the commission within one (1) year from the date of \nthe last payment of compensation or two (2) years from the date of the \ninjury, whichever is greater. \n \n The burden rests on Claimant to prove that his claim was timely filed.  Stewart v. \nArk. Glass Container, 2010 Ark. 198, 366 S.W.3d 358; Kent v. Single Source Transp., 103 \nArk. App. 151, 287 S.W.3d 619 (2008).  Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. \n2012),  he  must  prove  this  by  a  preponderance  of  the  evidence.  The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \nClaimant’s injury occurred on May 4, 2019. Claimant did not file a Form AR-C by \nMay 4, 2021, the statute of limitations deadline. A Form AR-C is the means for filing a \n“formal claim.”  See Yearwood v. Wal-Mart Stores, Inc., 2003 AR Wrk. Comp. LEXIS 739, \nClaim No. F201311 (Full Commission Opinion filed June 17, 2003).  See also Sinclair v. \nMagnolia  Hospital,  1998  AR  Wrk.  Comp.  LEXIS  786,  Claim  No.  E703502  (Full \n\nIGLEHART – G903654 & H208271 \n7 \n \nCommission Opinion filed December 22, 1998)(a claim is “typically” filed via a Form AR-\nC).  \nClaimant made no arguments regarding the statute of limitations deadline, only an \nimmediate concession that Claim #G903654 is time-barred and should be dismissed. I \nfind that Claimant has not proven by the preponderance of evidence that an official claim \nfor Claim #G903654 was timely filed and is hereby dismissed. Therefore, there will be no \nfurther dealings with Claim #G903654 beyond this point as a viable claim. We will only \ndeal with the February 5, 2022, claim, Claim #H208271, for the remainder of this opinion. \nThe  remaining  claim  has  an  issue  of  whether  Claimant’s  lower  back  injury  is \ncompensable. \nStandards.  Arkansas  Code  Annotated  §  11-9-102(4)(A)(i)  (Repl.  2012)  defines \n“compensable injury\": \n(i) An accidental injury causing internal or external physical harm to the body \n. . . arising out of and in the course of employment and which requires \nmedical services or results in disability or death.  An injury is \"accidental\" \nonly if it is caused by a specific incident and is identifiable by time and place \nof occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012).  \"Objective findings\" are those \nfindings that cannot come under the voluntary control of the patient.  Id. § 11-9-102(16).  \nThe element “arising out of . . . [the] employment” relates to the causal connection \nbetween the claimant’s injury and his or her employment.  City of El Dorado v. Sartor, 21 \nArk. App. 143, 729 S.W.2d 430 (1987). \n If the claimant fails to establish by a preponderance of the evidence any of the \nrequirements for establishing compensability, compensation must be denied.  Mikel v. \n\nIGLEHART – G903654 & H208271 \n8 \n \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard \nmeans the evidence having greater weight or convincing force.  Barre v. Hoffman, 2009 \nArk. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d \n442 (1947). \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., 72 \nArk. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto believe the testimony of the claimant or any other witness but may accept and translate \ninto findings of fact only those portions of the testimony that it deems worthy of belief.  Id.  \nMoreover, Arkansas Code Annotated Section 11-9-508(a) (Repl. 2012) states that \nan employer shall provide for an injured employee such medical treatment as may be \nnecessary in connection with the injury received by the employee.  Wal-Mart Stores, Inc. \nv. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only for \nsuch treatment and services as are deemed necessary for the treatment of the claimant’s \ninjuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  The claimant \nmust prove by a preponderance of the evidence that medical treatment is reasonable and \nnecessary for the treatment of a compensable injury.  Brown, supra; Geo Specialty Chem. \nv. Clingan, 69 Ark. App. 369, 13 S.W.3d 218 (2000).  What constitutes reasonable and \nnecessary  medical  treatment  is  a  question  of  fact  for  the  Commission.   White \nConsolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 (2001); Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001).  I do find that Claimant has \nproven by a preponderance of the evidence a compensable lower back injury and that \n\nIGLEHART – G903654 & H208271 \n9 \n \nshe is entitled to reasonable and necessary medical treatment of her compensable lower \nback injury.  Moreover, I have reviewed her medical records that are in evidence, and I \nfind that she has proven by a preponderance of the evidence that all of the treatment of \nher compensable lower back injury that is in evidence, on and after February 5, 2022, \nwas  reasonable  and  necessary.    However,  before  going  any  further,  I  do note \nRespondents’ argument that Claimant’s lower back injury was pre-existing. I do agree \nthat Claimant had a pre-existing back injury. \n However,  the  law  is  clear  that  an  employer  under  the  Arkansas  Workers’ \nCompensation  Act  takes  an  employee  as  the  employer  finds  her.  Employment \ncircumstances  that  aggravate  pre-existing  conditions  are  compensable.   Nashville \nLivestock Comm. v. Cox, 302 Ark. 69, 787 S.W.2d 64 (1990).  A pre-existing infirmity does \nnot disqualify a claim if the employment aggravated, accelerated, or combined with the \ninfirmity to produce the disability for which compensation is sought.  St. Vincent Med. Ctr. \nv. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).  “An aggravation, being a new injury \nwith  an  independent cause,  must  meet  the  requirements for a  compensable  injury.”  \nCrudup v. Regal Ware, Inc., 341 Ark. 804, 20 S.W.3d 900 (2000);  Ford v. Chemipulp \nProcess, Inc., 63 Ark. App. 260, 977 S.W.2d 5 (1998).  This includes the prerequisite that \nthe alleged injury be shown by medical evidence supported by objective findings.  See \nHeritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W.3d 150 (2003).  These \nstandards have been met here. \n As previously stated, I do find that Claimant has proven by a preponderance of the \nevidence  that  she  sustained  a  compensable  lower  back  injury,  by  specific  incident, \nsupported by objective evidence. The facts in support of my decision are as follows: \n\nIGLEHART – G903654 & H208271 \n10 \n \nThe parties have stipulated to the employer/employee relationship existing on \nFebruary 5, 2022, when the Claimant sustained her compensable lower back/lumbar \nspine injury. The Claimant is a police officer that was actively working for the City of \nJonesboro on February 5, 2022. The Claimant was heading to her patrol car to respond \nto a call when she slipped on some ice striking the curb and injured her lower back as \nwell as her right shoulder, elbow, and wrist. Claimant stated, during her sworn testimony, \nthat she told her supervisor about her back issues but was discouraged by her supervisor \nfrom pursuing that lower back injury claim. Claimant testified that her supervisor told her \nto focus on the shoulder, elbow, and wrist injuries so she can get back to work. Claimant \nhas also admitted under oath to taking shots to help with her back pain before the \nFebruary 5, 2022, incident. I do find the Claimant’s testimony credible.  \nThe  Claimant  has  presented  an  MRI  report  written  by  Dr.  Ezekiel  Shotts for \nClaimant’s September 19, 2022, visit. Dr. Shotts did a comparison of two MRIs, one taken \non December 12, 2021, a few months before the February 5, 2022, because of her pre-\nexisting back issues and another on September 9, 2022, after the February 5, 2022, \nincident. Dr. Shotts stated in his report, referencing Claimant’s L5-S1, “There is a large \nright paracentral disc protrusion, significantly increased in size compared with the prior \nstudy. The protrusion contacts and displaces the right S1 nerve root and contacts the right \nS2 nerve root.” Dr. Shotts’ “IMPRESSION” was as follows: “Enlarging right paracentral \ndisc protrusion at L5-S1 with contact of both the right S1 and S2 nerve roots.” I find Dr. \nShotts’ report and analysis credible. Thus, I also find that Claimant has proven by a \npreponderance of the evidence a compensable aggravated lower back injury stemming \nfrom her February 5, 2022, slip and fall with objective findings. Whether you look at \n\nIGLEHART – G903654 & H208271 \n11 \n \nClaimant’s injury as a new injury or a pre-existing aggravated injury, the results are the \nsame. The specific injury was the slip and fall during the course and scope of employment \nand the objective finding is the comparison MRI report showing significant difference in \nClaimant’s lower spine after her fall than what was shown on her MRI a couple of months \nbefore the February 5, 2022, incident.  \nTherefore, the Respondents shall pay Claimant temporary total disability benefits \nand  permanent  partial  impairment  benefits  in  accordance  with  state  law. The \nRespondents shall pay Claimant’s outstanding medical bills associated with her February \n5, 2022, slip and fall injury to her lower lumbar spine, including Claimant’s lumbar disc \nsurgery. I also find that Claimant is entitled to mileage associated with her compensable \nlower back injury. \nOne of the purposes of the attorney’s fee statute is to put the economic burden of \nlitigation on the party who makes litigation necessary. Brass v. Weller, 23 Ark. App. 193, \n745 S.W.2d 647 (1998). I find that Respondents have controverted Claimant’s entitlement \nto medical benefits and treatment of her lower back injury. Consequently, Claimant has \nproven by a preponderance of the evidence that her attorney should be awarded a \ncontroverted fee thereon pursuant to Ark. Code Ann. §11-9-715 (Repl. 2012). \nIV.    CONCLUSION \n Respondents are hereby directed to pay/furnish benefits in accordance with the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid in \na lump sum without discount, and this award shall earn interest at the legal rate until paid, \npursuant to Ark. Code Ann. § 11-9-809 (Repl. 2012).  See Couch v. First State Bank of \nNewport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n\nIGLEHART – G903654 & H208271 \n12 \n \n Claimant’s attorney is entitled to a 25 percent (25%) attorney’s fee on the indemnity \nbenefits awarded herein, one-half of which is to be paid by Claimant and one-half to be \npaid by Respondents, in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012).  See \nDeath & Permanent Total Disability Trust Fund v. Brewer, 76 Ark. App. 348, 65 S.W.3d \n463 (2012). \nIT IS SO ORDERED. \n                                                        ________________________________ \n                                                        STEVEN PORCH \n                                                        Administrative Law Judge","textLength":20440,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G903654 & H208271 KAITLYN M. IGLEHART, Employee CLAIMANT CITY OF JONESBORO, Employer RESPONDENT MUNICIPAL LEAGUE WC PROGRAM, Insurance Carrier / TPA RESPONDENT OPINION FILED MAY 11, 2023 Hearing before Administrative Law Judge Steven Porch on April 14, 2023, ...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","lumbar","shoulder","wrist"],"fetchedAt":"2026-05-19T23:07:30.470Z"},{"id":"alj-H300759-2023-05-09","awccNumber":"H300759","decisionDate":"2023-05-09","decisionYear":2023,"opinionType":"alj","claimantName":"Amber Fontenot","employerName":"Resolute Products U.S., Inc","title":"FONTENOT VS. RESOLUTE PRODUCTS U.S., INC. AWCC# H300759 MAY 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FONTENOT_AMBER_H300759_20230509.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FONTENOT_AMBER_H300759_20230509.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H300759 \n \n \nAMBER V. FONTENOT,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nRESOLUTE PRODUCTS U.S., INC., \nEMPLOYER                                                                                                         RESPONDENT \n \nAMERICAN ZURICH INS. CO./ \nZURICH INS. CO., \nCARRIER/TPA                                                                                             RESPONDENT \n \n                                                                                                                     \n \nAMENDED OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED MAY 9, 2023 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative Law Judge (ALJ) Mike Pickens, in Little Rock, Pulaski County, Arkansas. \n \nThe claimant, Ms. Amber Fontenot, is represented by Mr. Gregory R. Giles, Moore, Giles & \nMatteson, L.L.P., Texarkana, Miller County, Arkansas, who waived appearance at the hearing. \n \nThe respondents were represented by the Honorable Michael Stiles, Newkirk & Jones, Little \nRock, Pulaski County, Arkansas.  \n \n \n \nSTATEMENT OF THE CASE \n \n     A hearing was conducted on Tuesday, May 9, 2023, to determine whether this claim should be \nvoluntarily dismissed without prejudice for lack of prosecution at the claimant’s request pursuant \nto Ark.  Code  Ann.  §  11-9-702(a)(4)  (2023  Lexis  Replacement)  and  Commission  Rule  099.13 \n(2023 Lexis Replacement). \n     The claimant advised her attorney she wished to voluntarily dismiss her workers’ compensation \nclaim without prejudice. Therefore, by letter motion filed with the Commission on February 22, \n2023, the claimant’s attorney requested the claim be dismissed without prejudice at the claimant’s \n\nAmber Fontenot, AWCC No. H300759 \n \n2 \n \nrequest,  “due  to  circumstances  beyond  her  control.” (See,  Commission’s  file.). The  claimant’s \nattorney copied the respondent insurer on this letter. Pursuant to the applicable law the claimant \nwas  mailed  a  copy  of  this  letter  motion  to  dismiss  (MTD)  via  the  United  States  Postal  Service \n(USPS), First Class Mail, Return Receipt Requested; and both her and the respondents’ attorneys \nwere copied on this letter. The Commission set a hearing on the motion, duly and legally notifying \nthe claimant, as well as both her and the respondents’ attorney of the date, time, and place of the \nsubject hearing. The claimant’s attorney advised that he and the claimant waived appearance at the \nsubject hearing. \n     The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto, as well as the Commission’s entire file in this matter. \n \nDISCUSSION \n     Consistent  with Ark.  Code  Ann.§  11-9-702(a)(4),  as  well  as  our  court  of  appeals’  ruling  in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ MTD. Rather than recite \na detailed analysis of the record, suffice it to say the preponderance of the evidence introduced at \nthe hearing and contained in the record conclusively reveals the claimant has failed and/or refused \nto prosecute her claim at this time, and she requests the voluntary dismissal of the claim. According \nto the respondents’ attorney as stated on the record at the hearing, this claim was initially accepted \nas a medical only claim and, upon information and belief the claimant continues to work with the \nrespondent-employer. \n     Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, I hereby make the following: \n\nAmber Fontenot, AWCC No. H300759 \n \n3 \n \n \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having been mailed due and legal notice of the hearing on the claimant’s voluntary \nMTD, both the claimant and her attorney waived appearance at the hearing. \n \n3. The  claimant  has  requested  her  claim  be  voluntarily  dismissed  without  prejudice  at  this \ntime, “due to circumstances beyond her control.” Moreover, she has not requested a hearing \nwithin the last six (6) months, and she has not otherwise taken any action(s) to prosecute \nher claim. \n \n4. Therefore, the respondents’ voluntarily MTD without prejudice filed on February 22, 2023, \nis GRANTED; and this claim hereby is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed  by Ark.  Code  Ann.  Section  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n     This Order shall not be construed to prohibit the claimant, her attorney, any attorney she may \nretain in the future, or anyone acting legally and on her behalf, from refiling the claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n     The respondents hereby are ordered to pay the court reporter’s invoice within twenty (20) \ndays of its receipt thereof. \n     IT IS SO ORDERED. \n                                                                     \n____________________________                                                                      \n                                                                        Mike Pickens \n                                                                         Administrative Law Judge \n \n \n \n \n \n \n \n \nMP/mp","textLength":5594,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300759 AMBER V. FONTENOT, EMPLOYEE CLAIMANT RESOLUTE PRODUCTS U.S., INC., EMPLOYER RESPONDENT AMERICAN ZURICH INS. CO./ ZURICH INS. CO., CARRIER/TPA RESPONDENT AMENDED OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED MAY 9, 2023 Hearing conducted befor...","outcome":"dismissed","outcomeKeywords":["dismissed:2","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:15.870Z"},{"id":"alj-H206756-2023-05-09","awccNumber":"H206756","decisionDate":"2023-05-09","decisionYear":2023,"opinionType":"alj","claimantName":"Jeremy Grigg","employerName":"Intregated Stair Systems","title":"GRIGG VS. INTREGATED STAIR SYSTEMS AWCC# H206756 MAY 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GRIGG_JEREMY_H206756_20230509.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRIGG_JEREMY_H206756_20230509.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H206756 \n \nJEREMY E. GRIGG, EMPLOYEE      CLAIMANT \n \nINTREGATED STAIR SYSTEMS, EMPLOYER        RESPONDENT \n \nOHIO SECURITY INSURANCE COMPANY, \nCARRIER/LIBERTY MUTUAL GROUP, TPA           RESPONDENT \n \nOPINION FILED MAY 9, 2023 \nHearing before Administrative Law Judge, James D. Kennedy, on the 15\nth\n day of March \n2023, in Mountain Home, Baxter County, Arkansas. \nClaimant  is  represented  by  Mr.  George  H.  Bailey,  Attorney-at-Law,  of  Little  Rock, \nArkansas. \nRespondent  is  represented  by  Mr.  Jason  M.  Ryburn,  Attorney-at-Law,  of  Little  Rock, \nArkansas. \nSTATEMENT OF THE CASE \n A hearing was conducted on the 15\nth\n day of March, 2023, to determine the issues \nof compensability for a claimed work-related injury; plus medical; temporary total disability \nfrom August 29, 2022, to a date to be determined; and attorney fees.   All other issues \nwere reserved. The respondents contended that the claim was not compensable.  At the \ntime  of  the  hearing  the  parties  stipulated  the  claimant  earned  an  average  weekly \nwage of $520.00, entitling him to temporary total disability and permanent partial disability \nrates of $347.00 / $260.00, respectively.   A copy of the Prehearing Order was marked \n“Commission  Exhibit  1”  and  made  part  of  the  record  without  objection.    The  Order \nprovided  that  the  parties  stipulated  that  the  Arkansas  Workers’  Compensation \nCommission  has  jurisdiction  of  the  within  claim  and  that  an  employer/employee \nrelationship  existed  on  or  about  August  29,  2022,  the  date  of  the  claimed  injury  in \nquestion.        \n\nGRIGG – H206756 \n \n2 \n \n The  claimant’s  and  respondent’s contentions were  all  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \nobjection.  The  sole  witness was Jeremy E. Grigg, the claimant.  From a review of the \nrecord  as  a  whole,  to  include  medical  reports  and  other  matters  properly  before  the \nCommission, and having had an opportunity to observe the testimony and demeanor of \nthe witness, the following findings of fact and conclusions of law are made in accordance \nwith Arkansas Code Annotated §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this  \nclaim. \n \n2.  That an employer/employee relationship existed on August 29, 2022, the date \nof the claimed injury.  At the time, the claimant earned an average weekly wage \nof $520.00 a week, sufficient for temporary total disability and permanent partial \ndisability rates of $347.00 / $260.00, respectively, per week. \n \n3.  That the claimant has failed to satisfy the required burden of proof to show he \nsustained a compensable work-related injury on August 29, 2022. \n \n4.  That based upon the above finding, all remaining issues are moot. \n \n5.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n The Prehearing Order, along with the prehearing questionnaires of the parties and \nthe claimant’s amended response to the prehearing questionnaire were admitted into the \nrecord  without  objection.    The  claimant  submitted  two  (2)  exhibits  that  were  admitted \nwithout  objection:  (1) 26  pages  of  medical  reports;  and  (2)  the  earning  records  and \nArkansas Form-AR-N which consisted of four (4)  pages.  The respondents also submitted \ntwo (2) exhibits: (1) 80 pages of medical reports which were allowed to be proffered; and \n\nGRIGG – H206756 \n \n3 \n \n(2)  the  deposition  of  the  claimant  taken  on  March  2,  2023,  which  consisted  of  twenty-\nseven (27) pages. \n In addition, both parties voluntarily submitted briefs which were blue-backed and \nmade a part of the record herein.   \n The  claimant,  Jeremy E.  Grigg,  testified  he  graduated  from  Calico  Rock  High \nSchool in 2002, and since that date, has taken on-line classes.  He thought he went to \nwork for the respondent  on or about August 17, 2022, and then hurt his lower back on \nAugust 29, 2022, while stacking platforms.  The platforms looked like an aluminum table \nwith four (4) legs and were stacked after turning the first one upside down, the second \none was then stacked right side up, and then the third one would be stacked upside down.  \nHe stated they were instructed to obtain assistance when stacking the fourth one, but he \nattempted to stack the fourth one by himself, lifting it from about twelve (12) inches high \nat  the position  where he  grabbed  hold  of  it  to  chest  high.    He  stated  he  picked  up  the \nplatform about halfway and felt a pop in his back.  He reported the injury to Timmy Sutton, \nwho had seniority at the work site at the time.  The claimant stated the pain was “pretty \nsevere pain in my lower left side here, and I mean, it got so bad I had to leave.  I had to \ngo to the doctor.” (Tr. 7-10) \n The claimant went to his primary care provider that day and saw Thelma Owens, \nAPRN.  He received a shot he thought was Tylenol 4 and was placed on work restrictions.  \nHe returned to see Ms. Owens on or about September 6, 2022, and she ordered an MRI.  \nHe stated he was in unbelievable pain between the dates of August 29 and September \n6, 2022, with pain running down his legs which was the worst pain in his life.  After the \nMRI, the claimant was referred to a neurosurgeon, Dr. Gocin, in Mountain Home.  He had \n\nGRIGG – H206756 \n \n4 \n \nto  return  to  Ms.  Owens  prior  to  seeing  Dr.  Gocin,  due  to  the  pain,  and  obtained  work \nrestriction slips which he presented to his employer. (Tr. 11-12) \n The claimant thought he  saw Dr. Gocin on October 24, after seeing  Ms.  Owens \nthree (3) times and obtaining the MRI.  He was given hydrocodone, a muscle relaxer, and \nsent to physical therapy.  He returned to Dr. Gocin a second time where it was determined \nhe  would  need  surgery,  which  occurred  on  December  29,  2022,  and  consisted  of  a \ndiscectomy.    He  stated  he  was  not  doing  much  better,  that  another  MRI had  been \nscheduled in two (2) weeks, and he had not been released.  Currently, he was not able \nto do much, spending his time  in bed or in a chair.  He had only improved a little.  He \nadmitted  he  had  trouble  with  his  spine  when  he  received  an  x-ray  at  the  Izard  County \nMedical  Clinic  in  2014  and  had been  seeing  Ms.  Owens  during  that  time  period.    He \nthought she told him he had a deep deformity at T12--L1.  He was then referred to Dr. \nGreen, a specialist in Mountain Home, for a steroid epidural and someone told him he \nhad  a  compression  deformity  at  T12–L1.    He  received  additional  injections  from  Ms. \nOwens because he was hurting in the small of his back and did not have pain running \ndown  his  legs  at  that  time or  pain  in  his  hips.  (Tr.13-16)  He  remembered  receiving \nadditional shots in his hip in May of 2016, because he was hurting at the same spot in his \nlower back.  He testified he did not hurt below the waist in 2016.  When he received shots \nin 2017, he was suffering from pain in the middle of his back.  The claimant admitted he \nhad  an  opportunity  to  review  his  medical  records  which  provided  for  low  back  pain  as \nopposed  to mid-back pain.    He admitted  receiving  shots  in  2020 and  being prescribed \nXanax and  Tylenol  4 during  that  time  period.  (Tr.17-18)    The  claimant  testified  that  he \nwas  hurting  in  the middle  of  his  back  at  that  time,  with  no  pain  running  down his  legs.  \n\nGRIGG – H206756 \n \n5 \n \n“There’s a lot of pain increase after August 29\nth\n from the part that was in my middle back, \nbut  it  was  just  kind  of  a,  it  was  dull  ache  here  (indicating)  and  this  was  a  sharp pain, \nshooting pains down my legs after the 29\nth\n.”  He had not experienced pain in his legs or \nhips prior to August 29\nth \nand had not experienced conditions where he could not work.  \nHe  stated  he  was  doing  pretty  well  from  June  of  2020  up  until  August  29,  2022. \n(Tr. 19-20)   He had been working in landscape work and foundation repair and had not \nhad Tylenol back in 2020. (Tr. 21)   The claimant thought his next appointment was on \nMarch 27\nth\n.\n  .\n  \n Under  cross-examination,  the  claimant  testified  he  injured  the  lumbar  section  of \nhis spine on August 29, 2022, and not the thoracic section.  He also admitted his condition \nwas pre-existing and he had suffered low back pain since 2009  where a 2014 medical \nreport referenced a 2009 x-ray of the lumbar spine.  The claimant also admitted he had \nsuffered a work injury in 2014 when he stepped in a hole while lifting trusses and had hurt \nhis  lower  back  and  right  leg.  (Tr.  25-26)    He  had  forgotten  about  that  injury  when \nquestioned  in  his  deposition.    The 2014 work injury was not a workers’ compensation \nclaim because he was only out of work maybe a day or two.  He admitted that after the \n2014  work  injury, he suffered  lower  back  spasms  and  was  treated  with  hydrocodone, \nTylenol 4, and Flexeril. (Tr. 27)    He also admitted that from time to time, he had been \nreferred to Dr. Green, a surgeon in Mountain Home, who he thought ordered an MRI in \n2014, but he had not obtained the MRI report either.  The claimant was also questioned \nabout  presenting  to  the  Clinic  of  Calico  Rock  on  January  2,  2017,  with a  complaint  of \nacute  lower  back  pain  and  was  asked what happened.  He responded, “I’m not sure \n\nGRIGG – H206756 \n \n6 \n \nanything.  I believe it was just around the middle of my back was hurting.  I’m not sure \nwhy it’s acute.” (Tr. 28) \n In  regard  to  the  respondent  employer,  the  claimant  stated  he  had  worked there \nthree (3) times and when asked if he had complained to his employer  about back pain \nprior to the date of the August 2022 injury, he responded “Not that I know of, I haven’t.”  \nThe  claimant  was  then  asked  about  his  deposition  where  he  indicated  the  pain  was \nbetween his shoulder blades and he responded, “Yes in between my shoulder blades” \nand now was pointing to his lower back and he responded, “It would be considered my \nlower back, yes.  I didn’t realize at the time that it would be considered lower back –.\"  He \nagreed  that  at  the  time  of  his  deposition,  he  pointed  to  a  spot  between  the  shoulder \nblades, and stated, “I couldn’t really see where I was pointing at, I guess, and yes, I just \nagreed with you, that you said shoulder blades, that’s what I was thinking.” (Tr. 29-30)  \nThe claimant was then specifically asked if there was a reason he did not describe his \nprevious  lower  back  complaints  when  he  was  deposed  just  a  short  time  ago  and  he \nresponded, “I just, I didn’t, I thought they were before I got my epidural.  I just had my \ndates and memory wrong on that part.”  He went on to state he had remembered his \nprevious back problems, just not the dates. (Tr. 31)  The claimant was  also questioned \nabout relating his back symptoms to his T-12 deformity and a tackle back in high school \nfootball and he responded  that the pain was in his lower back and lower part of his rib \ncage. (Tr. 32)   He had never had pain, “in between my shoulder blades, I guess.  I was \nthinking about the epidural they gave me, and it felt like it went all the way up my back.” \n(Tr. 33) \n\nGRIGG – H206756 \n \n7 \n \n The claimant admitted he had been self-employed for three (3) years immediately \nprior to working for the respondent.  He admitted having Obamacare/Medicaid during that \nperiod of time, but no workers’ compensation insurance,  while  doing  foundation  work \nlaying blocks under a house.  (Tr. 33-34)  The discrepancies in his deposition testimony \nand today’s hearing were due to “mis-remembrance.” (Tr. 35) \n           In  regard  to  medical  records,  the  claimant  submitted  twenty-six  (26)  pages  of \nmedical  records.  The  initial  report  dated  August  29,  2022,  by  Thelma  Owens, APRN, \nprovided the claimant presented with lower back pain due to lifting something and was \ngiven Toradol in the left hip, Kenalog and Triamcinolone in the right hip, a prescription for \nTylenol 4 and Prednisone, and an off-work slip which provided the claimant could return \nto work on September 6, 2022. (Cl. Ex. 1, P. 1-3)  The claimant returned to Ms. Owens \non September 6, 2022, and an MRI was scheduled along with a referral to Dr. Gocio, and \nan off-work slip providing the claimant could return to work on September 26, 2022. (Cl. \nEx. 1, P. 4-6)  \n The MRI of the claimant’s lumbar spine dated September 17, 2022, provided for a \nchronic appearing mild T12 compression deformity with a  five percent (5%) height loss \nand no acute fracture or dislocation seen.  Degenerative endplate changes were seen at \nthe T12 and L1 and L5-S1 levels.  Under impression, the report provided for moderate \nsubacute degenerative spondylosis of the lumbar spine that was most prominent at the \nL5-S1.  No acute fracture dislocation was seen, but chronic appearing T12 compression \ndeformity was noted. (Cl. Ex. 1, P. 7-8) \n The  claimant  returned to  Ms.  Owens  on  October  14,  2022,  for  continued  lower \nback  pain  and  prescription  renewal.  (Cl.  Ex.  1,  P.  9-10)      On  October  24,  2022,  the \n\nGRIGG – H206756 \n \n8 \n \nclaimant presented to Dr. Gocio, with the complaint of low back pain, left hip pain, and \nleft  sciatica,  with an  assessment of  displacement  of the  lumbar  intervertebral  disc  with \nradiculopathy and acute left-sided low back pain and left sided sciatica.  Another off-work \nnote till November 28, 2022, was issued. (Cl. Ex. 1, P.11-15)  On November 28, 2022, \nthe  claimant  again returned  to  Dr.  Gocio.    The claimant’s  symptoms  and  the  clinical \nfindings were reviewed and the report provided the original assessment had not changed.  \nAnother off-work slip was issued which provided for no lifting over fifty-one (51) pounds \nand further stated the claimant could not return to work until after surgery. (Cl. Ex. 1, P. \n16-19)   Surgery  occurred  on  December  29,  2022.   A  paramedian  disc  herniation  \nat L5-S1 left, with compression of the thecal sac and spinal nerve along with  foraminal \nstenosis and spondylosis were found. (Cl. Ex. 1, P. 20-21)  The claimant was then seen \nby Brandy Anderson, APRN, on February 14, 2023, who provided that the claimant went \nfor one session of therapy and stated that he had severe worsening of back hip and leg \npain  and  then  did  not continue  the physical  therapy.   The  report provided the  claimant \nhad some improvement, but still maintained significant complaints. (Cl. Ex. 1, P. 22-24) \n Claimant’s  second  exhibit  was  the  schedule  of  his  weekly  earnings  and an \nArkansas Form AR – N, which provided he had lifted a platform to stack and felt a small \npop in his back while bending over them. (Cl. Ex. 2) \n The  respondents  Exhibit  One  consisted  of  eighty  (80)  pages of medical  records \nand most of the records came from Ms. Owens, APRN.   A summary of the visits provided \nthat an x-ray of the lumbar spine dated May 29, 2014, was compared to a previous x-ray \nstudy  on  October  16,  2009,  and  it  was  noted  that  the  earlier  x-ray  report could  not  be \nfound,  based  upon  the  testimony.  The  report  provided  that  no  acute  fracture  and  no \n\nGRIGG – H206756 \n \n9 \n \npedicle destruction were seen.  Degenerative disc space narrowing of moderate severity \nwith mild end-plate osteophyte spurring was noted at the T12-S1 level.  This had slightly \nworsened from the earlier study. (Resp. Ex. 1, P. 2-4)   \nThe claimant again returned to Ms. Owens, APRN, on May 29, June 5, and June \n17, 2014, with low back pain specifically mentioned; the claimant then returned on June \n30, July 23, and August 29, 2014, for anxiety and insomnia;  later on November 25, 2014, \nJanuary 24, 2015,  and April 21, 2015, the claimant returned for insomnia, anxiety and \nother health issues.  The record also provided the claimant again returned multiple times \nfor Xanax, Ambien, and other refills. \nOn  August 10  and  September  8,  2015,  the claimant again  presented  with  lower \nback pain, muscle spasms, and other health issues.  On November 17, 2015, the claimant \nobtained a prescription for Tylenol #4 for chronic pain, and again returned on December \n18,  2015,  for  chronic  pain.    On  December  22  and  December  31  of  2015,  the  claimant \npresented  with anxiety and other health care issues.  On January 11, 2016, the claimant \nagain  returned  for  lower  back  pain  and  anxiety.    On  January  26,  2016,  the  claimant \npresented with muscle spasms and other health issues.  The claimant then returned on \nFebruary 9, 12, and 29; March 5 and 28; April 5 and 26; May 3, 12, and 27; June 28; July \n12;  August 25;  September  24;  October  22;  November  21;  and  December  21,  2016, \npresenting at various times with anxiety, chronic pain, and lower back pain.  On January \n2, and 19; March 18; April 18; May 18; June 16; July 17, 18; August 18; September 16; \nOctober 14; November 14; December 14, 2017, the claimant presented at various times \nwith lower back pain and chronic pain on various visits and obtained numerous refills.  It \nappeared the first visit in 2018 was on June 14 with multiple visits following that year, with \n\nGRIGG – H206756 \n \n10 \n \ncomplaints  of  chronic  pain  and  anxiety,  plus  additional  health  issues.  The  claimant \nappeared to present to Ms. Owens significantly less in 2019, but was still being prescribed \nTylenol  4  and  Xanax  for  lower  back  pain  and  anxiety.    On  June  1,  2020,  the  claimant \nreturned with a complaint of lower back pain.  The claimant again returned on March 27 \nand  July  26,  2021,  requesting  refills  for  hypertension  and  anxiety.    On  December  21, \n2021, the claimant presented with complaints of headaches and additional health issues \nand  then  returned  on  June  21,  2022,  for  refills  in  regard  to  hypertension  and  anxiety. \n(Resp. Ex. 1, P. 5-79) \nThe  respondents  also  submitted  the claimant’s deposition which was taken on \nMarch 2, 2023, less than two (2) weeks prior to the hearing.  The claimant admitted that \nat   the time of his deposition, he was on probation for a felony. (Resp. Ex. 2, P. 6)  He also \nadmitted he had received an epidural four (4)  years earlier for his upper back  from Dr. \nGreen  in  Mountain  Home  and  was  provided  an  MRI,  probably  back  in  2016,  and  his \nsymptoms at the time were pain in his upper back.  When he lifted anything, he suffered \npain, “in between his shoulder blades.”  He also stated that his primary care provider was \nMs. Owens, who treated him primarily for depression. (Resp. Ex. 2, P. 10)  When asked \nabout the time period between 2016 or 15, whenever it was, and 2022, and did he have \nany treatment for his spine, he responded “no.” (Resp. Ex. 2, P. 11)  He admitted he had \ninjured  his  back  in  2015  or  16  when  he  got  tackled  in  high  school  and that  was  what \ncaused his upper back problem.  (Resp. Ex. 2, P. 16) \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving, by a preponderance of the evidence, that he is entitled to compensation benefits \n\nGRIGG – H206756 \n \n11 \n \nfor  the  injury  to  his  lower  back under the Arkansas Workers’ Compensation Act.    In \ndetermining  whether  the  claimant  has  sustained  his  burden  of  proof,  the  Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party.  \nArk. Code Ann. §11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact. Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \nAn objection was made in regard to the admission of the medical records submitted \nby the respondents and the respondents were allowed to proffer the exhibit.  The Workers’ \nCompensation Commission has wide discretion in the admissibility of evidence, and after \nreviewing  the  evidence  in  the exhibit,  it  is  determined  that  the medical  evidence  in  the \nrespondent’s  exhibit  will  assist in  accurately  ascertaining  the  rights  of  the  parties  and \nconsequently, is held to be admissible.   \nUnder workers’ compensation law in Arkansas, a  compensable  injury  must  be \nestablished  by medical  evidence  supported by  objective  findings  and  medical opinions \naddressing  compensability and  must  be  stated  within  a  degree  of  medical  certainty. \nSmith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72  S.W.3d  560  (2002).    Speculation  and \nconjecture cannot substitute for credible evidence.  Liaromatis v. Baxter County Regional \nHospital,  95  Ark.  App.  296,  236  S.W.3d  524  (2006).    More  specifically,  to  prove  a \ncompensable injury, the claimant must establish by a preponderance of the evidence: (1) \nan injury arising out of and in the course of employment; (2) that the injury caused internal \nor external harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. \n\nGRIGG – H206756 \n \n12 \n \n§11-9-102(16)  establishing  the  injury;  and  (4)  that  the  injury  was  caused  by  a  specific \nincident and identifiable by time and place of occurrence.  If the claimant fails to establish \nany of the requirements for establishing the compensability of the claim, compensation \nmust be denied.  Mikel v. Engineered Specialty Plastics, 56 Ark. App. 126, 938 s.W.2d \n876 (1997). \nAn  injury  for  which  the  claimant  seeks  benefits  must  be  established  by medical \nevidence supported by objective findings which are those findings that cannot come under \nthe voluntary control of the patient. Ark. Code Ann.  §11-9-102 (16).  It is also important \nto note that the claimant’s testimony is never considered uncontroverted.  Lambert  v. \nGerber Products Co.  14 Ark. App. 88, 684 S.W.2d 842 (1985).  \nHere, in a deposition only about two (2) weeks prior to the hearing, the claimant \ndenied  having  any  treatment  for  his  spine  between  2015  or  2016,  through  2022,  and \ndescribed the previous issues with his back being in his upper back between his shoulder \nblades.  At the time of the hearing, he testified he didn’t realize at the time that it would \nbe considered the lower back.  In regard to his pointing to a spot between his shoulder \nblades in the deposition, he testified, “I couldn’t really see where I was pointing at, I guess, \nand yes, I agreed with you, that you said shoulder blades, that’s what I was thinking.”  He \nadditionally  testified  in  his  deposition  in  regard  to  previous  medical  treatment, that  his \nprimary care provider mainly treated him for depression in the years prior to the above \nclaimed work injury.  However, in reviewing the medical records, as provided above, it is \nclear Ms. Owens treated the claimant multiple times for chronic pain and specifically lower \nback pain, with the testimony provided by the claimant at best an aggressive improvement \non the truth.  The claimant suffered a work injury back in 2014 when he stepped in a hole \n\nGRIGG – H206756 \n \n13 \n \nwhile  lifting  trusses.    He  also  testified  about  a  back  injury  while  playing  high  school \nfootball.  \nUnder Arkansas Workers’ Compensation law,  it  is  also  clear  that an employer \ntakes  the  employee  as it  finds  him  and  employment  circumstances  that  aggravate \npreexisting  conditions are  compensable. Heritage  Baptist  Temple  v.  Robinson,  82 Ark. \nApp. 460, 120 S.W.3d 150 (2003).  It is also noted that a claimant is not required in every \ncase  to  establish  the  casual  connection  between  a  work-related  incident  and  an  injury \nwith an expert medical opinion. See, Wal-mart Stores, Inc. v. VanWagner, 337 Ark. 443, \n990 S.W.2d 522 (1999).  Arkansas Courts have long recognized that a causal relationship \nmay be established between an employment-related incident and a subsequent physical \ninjury based on evidence that the injury manifested itself within a reasonable period of \ntime following the incident so that the injury is logically attributable to the incident, where \nthere is no other reasonable explanation for the injury.  Hall v. Pitman Construction Co. \n235 Ark. 104, 357 A.W.2d 263 (1962) \nSpecifically,  a  workers’  compensation  claimant  bears  the  burden  of  proving \nthe  compensable  injury,  by   a  preponderance  of  the  evidence.  Ark.  Code  Ann.  §11-\n9-102(4)(E)(i).  A compensable injury is one that was the result of an accident that arose \nin the course of his employment and that grew out of or resulted from the employment. \nSee,  Moore  v.  Darling  Store  Fixtures,  22  Ar.  App  21,  732  S.W.2d  496  (1987)    Based \nupon the available evidence in the case at bar, the only testimony or finding in regard to \nthe injury being connected to the work-related date of August 29, 2022, was the testimony \nof the claimant.  The claimant had suffered from back injuries for over a decade and had \npreviously received multiple x-rays and MRI’s in regard to his back.  He also appeared to \n\nGRIGG – H206756 \n \n14 \n \nhave forgotten about significant treatment for his back provided by Ms. Owens and had \neven  confused  the  area  between  his  shoulder  blades  with  his  lower  back  during  his \ndeposition, only a few weeks earlier.  Consequently, there is no alternative but to find that \nthe  claimant  has  failed  to satisfy  the required  burden of  proof to show the claimed  \nwork-related   lower    back   injury   and    his    lower   back   problems    were  in   fact  work  \nrelated to the injury on August 29, 2022.  Consequently, all other issues are moot. \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, it is found that the claimant has failed to satisfy the required burden of proof \nto show he suffered a compensable work-related injury to his lower back on August 29, \n2022,  and  consequently,  all  the  other  issues  are  moot.    If  not  already  paid,  the \nrespondents are ordered to pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":26749,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206756 JEREMY E. GRIGG, EMPLOYEE CLAIMANT INTREGATED STAIR SYSTEMS, EMPLOYER RESPONDENT OHIO SECURITY INSURANCE COMPANY, CARRIER/LIBERTY MUTUAL GROUP, TPA RESPONDENT OPINION FILED MAY 9, 2023 Hearing before Administrative Law Judge, James D. Kennedy, on th...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back","hip","lumbar","thoracic","shoulder","fracture"],"fetchedAt":"2026-05-19T23:07:17.946Z"},{"id":"alj-H204423-2023-05-09","awccNumber":"H204423","decisionDate":"2023-05-09","decisionYear":2023,"opinionType":"alj","claimantName":"James Jones","employerName":"Ug2, LLC","title":"JONES VS. UG2, LLC AWCC# H204423 MAY 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JONES_JAMES_H204423_20230509.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JONES_JAMES_H204423_20230509.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H204423 \n \n \nJAMES C. JONES, JR., \nEMPLOYEE                                                                                                                 CLAIMANT \n \nUG2, LLC,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n                                                                                                                                                                                             \nTRAVELERS INDEMNITY COMPANY, \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED MAY 9, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, failed to appear for the hearing.         \n \nRespondents represented by Mr. Guy Alton Wade, Attorney at Law, Little Rock, Arkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on April 26, 2023 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (d) (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule \n099.13.  \nAppropriate Notice of this hearing was attempted on all parties to their last known address, \nin the manner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the  April  26,  2023,  hearing  and  the  documents \ncontained therein.  The remainder of the Commission’s file has also been made a part of the record.  \nIt  is  hereby  incorporated  herein  by  reference.  The Respondents’ Hearing Exhibit consisting of \ntwenty-one numbered pages has been marked Respondents’ Exhibit 1.     \n\nJones  – H 204423 \n \n2 \n \n                                                                 Discussion \n On July 7,  2022, the Claimant wrote a letter to the Commission, to request a hearing on \nhis claim.  At that point, this matter was assigned to Former Administrative Law Judge Terry Don \nLucy,  who  forwarded  the  preliminary  documents  to  the  parties.  The  Claimant  completed  the \nprehearing documents and returned them to the Commission on August 23, 2022.   Specifically, \nthe  Claimant  alleged  that  he  sustained  an  injury  to  his  left  foot  while  moving  heavy  pallets.  \nAccording to the Claimant, one of the pallets fell on his left foot and broke it.  The Claimant stated \nthat his reason for requesting a hearing was because he wished to obtain eight months of back pay \nfor the time missed from work.  The Claimant’s alleged injury occurred on June 13, 2021.       \n  The  respondent-insurance-carrier  filed  a  Form  AR-2  with  the  Commission  on June  27, \n2022 stating that this was a medical only claim.  However, the carrier also indicated on this form \nthat they were controverting the claim on the grounds of: “No medical evidence of an injury.” \nPursuant to the Claimant’s request for a hearing on July 7, 2022, this claim was scheduled \nfor prehearing telephone conference on September 28, 2022.  Former Administrative Law Judge \nTerry Don Lucy conducted this telephone conference.  At the time of the telephone conference, \nthe Claimant advised to “just forget about it,” with respect to his  claim  and  shortly  thereafter \nterminated  his  participation  in  the  conference  call.    As  a  result,  this  claim  was  returned  to  the \nCommission’s general files on September 28.   \nSince  this  time,  the  Claimant  has  taken  no  action  whatsoever  to  prosecute  his  claim  for \nbenefits.      \n Subsequently, on or about February 6, 2023, the Respondents filed with the Commission a \nrequest to dismiss this claim due to a lack of prosecution. Respondents forwarded a copy of this \nrequest for dismissal to the Claimant via the United States Postal Service. \n\nJones  – H 204423 \n \n3 \n \nThe  Commission  sent  a  notice of the Respondents’ motion  to  the  Claimant  last  known \naddress  on  February  7,  2023.    Per  this  correspondence,  the  Claimant  was  given  a  deadline  of \nFebruary 21, 2023 for filing a written response to the Respondents’ motion.  \n Yet, there was no response from the Claimant. \nTherefore, pursuant to a Hearing Notice dated February 23, 2023, the Commission notified \nthe parties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim \ndue to a lack of prosecution.  Said hearing was scheduled for April 26, 2023, at 9:30 a.m., at the \nArkansas Workers’ Compensation Commission, in Little Rock, Arkansas. \n However,  on  the  day  of  the  hearing,  the  United  States  Postal  Service  returned  the \nClaimant’s notice to the Commission essentially marked, “undeliverable.”     \n A hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \nfailed to appear at the hearing.  However, the Respondents appeared through their attorney.   \nCounsel  essentially  noted  that  the  Claimant  has  failed  to  timely  prosecute  his  claim  for \nworkers’ compensation benefits.  Counsel also noted that there has been no attempt on the part of \nthe Claimant to resolve his claim since the telephone conference of September 28, 2022, at which \ntime the Claimant indicated that he wished not to pursue his claim.  Therefore, counsel moved that \nthis claim be dismissed for a lack of prosecution and the fact that the Claimant has indicated that \nhe does not wish to pursue it. \nThe record before me shows that a request for a hearing has not been filed by or on behalf \nof the Claimant since the time of the prehearing telephone of September 28, 2022.  Hence, since \nthe filing of his claim for benefits more than six months ago, the Claimant has failed to prosecute \nhis claim.  Of significance, the Claimant failed to appear at the dismissal hearing, and he has not \n\nJones  – H 204423 \n \n4 \n \nobjected  to  his  claim  being  dismissed  or  responded  to  the  notices  of  this  Commission.  More \nimportantly, the Claimant has indicated that he does not wish to pursue his claim.  \nHence, the preponderance of the evidence shows that the Claimant has abandoned his claim \nfor workers’ compensation benefits, considering he has not objected to his claim being dismissed \nor made a bona fide request for a hearing since the filing of the claim.  More, the Claimant has \nindicated that he is not interested in pursuing his claim.   \nTherefore,  the  evidence  before  me  demonstrates  that  the  dismissal  of  this  claim  is \nwarranted, without prejudice, to the refiling of it within the limitation period specified by law.  I \nfurther find that said dismissal should be and is hereby made pursuant to the provisions of Ark. \nCode Ann. §11-9-702, and Arkansas Workers’ Compensation Commission Rule 099.13. \n                               FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. On July 7, 2022, the Claimant requested a hearing on his claim.  Since the \nfiling  of  his  claim  more  than  six  months  ago,  the  Claimant  has  failed  to \nprosecute  his  claim  and  has  not made  a  bona  fide  request  for  a  hearing.  \nHowever, since this time, the Claimant has indicated that he does not wish \nto pursue his claim.    \n \n3. On February 6, 2023, the Respondents filed with the Commission a motion \nto dismiss this claim for a lack of prosecution, primarily on the basis that \nthe Claimant has indicated that he does not wish to pursue his claim.    \n \n4. A hearing was held on the Respondents’ motion to dismiss, but the Claimant \nfailed to appear at the hearing, and he has not objected to his claim being \ndismissed or responded to the notices of this Commission. \n \n5. The evidence preponderates that the Claimant has failed to prosecute this \nclaim  under  the  provisions  of  Ark.  Code  Ann.  §11-9-702,  and  Arkansas \nWorkers’ Compensation Commission Rule 099.13.   \n\nJones  – H 204423 \n \n5 \n \n \n6. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            7. The Respondents’ motion  to  dismiss  is  hereby  granted  without  prejudice \npursuant  to  Ark.  Code  Ann.  §11-9-702,  and  Commission  Rule  099.13,  to \nthe refiling of it within the limitation period specified by law.  \n \nORDER \n \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. §11-9-702, and Arkansas Workers’ Compensation \nCommission Rule 099.13, without prejudice to the refiling of it within the limitation period as  \nspecified by law.  \nIT IS SO ORDERED. \n \n \n                              _______________________________ \n               CHANDRA L. BLACK \n               Administrative Law Judge","textLength":9318,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H204423 JAMES C. JONES, JR., EMPLOYEE CLAIMANT UG2, LLC, EMPLOYER RESPONDENT TRAVELERS INDEMNITY COMPANY, THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED MAY 9, 2023 Hearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:07:20.010Z"},{"id":"alj-H203720-2023-05-09","awccNumber":"H203720","decisionDate":"2023-05-09","decisionYear":2023,"opinionType":"alj","claimantName":"Kevin Killman","employerName":"Springdale Water & Sewer","title":"KILLMAN VS. SPRINGDALE WATER & SEWER AWCC# H203720 MAY 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//KILLMAN_KEVIN_H203720_20230509.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KILLMAN_KEVIN_H203720_20230509.pdf","fullText":"Killman – H203720 \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H203720 \n \nKEVIN KILLMAN, Employee      CLAIMANT \n \nSPRINGDALE WATER & SEWER, Employer      RESPONDENT \n \nACCIDENT FUND INS., Carrier/TPA     RESPONDENT \n \n \n OPINION FILED MAY 9, 2023  \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by JAMES A. ARNOLD II, Attorney at Law, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn  March  7,  2023,  a  hearing  on  Respondents’  Motion  to  Dismiss  was  conducted  in \nSpringdale,  Washington  County,  Arkansas. On  December  1,  2022,  the  respondents  filed  a \nMotion  to  Dismiss  and  requested  that  this  case  be  dismissed  for  lack  of  prosecution.  On \nDecember  12,  2022,  a  hearing  notice  was  sent  to  the  parties  setting  this  matter  for  a  dismissal \nhearing  on  January  31,  2022.  Due  to  inclement  weather,  however,  the  hearing  was  postponed, \nand another Notice of Hearing was sent to the parties on February 3, 2023, notifying them that a \nhearing  was  scheduled  for  March  7,  2023.  The  claimant’s  notice  was  mailed  to  him  at  his  last \nknown  mailing  address  by  certified  and  regular  mail.  That  notice  was  returned  by  the  United \nStates Postal Department with the notation “Return to Sender. Unable to Forward.” \n \n\nKillman – H203720 \n \nOn  May  25,  2022,  Claimant’s  previous  attorney,  Michael  L.  Ellig,  filed  an  AR-C \nrequesting  various  compensation  benefits.  Mr.  Ellig  filed  a  Motion  to  Withdraw  on  July  27, \n2022, and  the  Full  Commission  granted  that  Motion  on  August  9,  2022.  No  further  action  was \ntaken in this claim. \nBefore  withdrawing  as  claimant’s  counsel,  Mr.  Ellig  informed  the  respondents  that  the \nclaimant had moved to Farmington, New Mexico and no longer wished to pursue his claim. \nGiven  the  lack  of  activity  or  effort  to  prosecute  and  move  this  case  forward  and  the \nclaimant’s lack of attendance at the hearing, I do think it is appropriate that I dismiss this matter \nwithout prejudice. \n After my review of the respondents’ Motion to Dismiss, the claimant’s lack of response \nthereto, and all other matters properly before the Commission, I find that respondents’ Motion to \nDismiss  this  claim  should  be  and  hereby is  granted  pursuant  to  Commission  Rule  099.13.  This \ndismissal is without prejudice.  \nORDER \n Pursuant  to  the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n  \n IT IS SO ORDERED.    \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":3196,"preview":"Killman – H203720 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H203720 KEVIN KILLMAN, Employee CLAIMANT SPRINGDALE WATER & SEWER, Employer RESPONDENT ACCIDENT FUND INS., Carrier/TPA RESPONDENT OPINION FILED MAY 9, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington Cou...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:22.118Z"},{"id":"alj-H102105-2023-05-09","awccNumber":"H102105","decisionDate":"2023-05-09","decisionYear":2023,"opinionType":"alj","claimantName":"Stephen Sadler","employerName":"Palmetto Engineering","title":"SADLER VS. PALMETTO ENGINEERING AWCC# H102105 MAY 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SADLER_STEPHEN_H102105_20230509.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SADLER_STEPHEN_H102105_20230509.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H102105 \n \nSTEPHEN SADLER (DEC’D), Employee     CLAIMANT \n \nPALMETTO ENGINEERING, Employer     RESPONDENT \n \nTRISTAR CLAIMS MANAGEMENT SERVICES, Carrier/TPA  RESPONDENT \n \n \n OPINION FILED MAY 9, 2023  \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Russellville,  Pope \nCounty, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by JOSEPH H. PURVIS, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \nThis case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn  April  13,  2023,  a  hearing  on  Respondents’  Motion  to  Dismiss  was  conducted  in \nRussellville,  Pope  County,  Arkansas. On  January  27,  2023,  the  respondents  filed  a  Motion  to \nDismiss and requested that this case be dismissed for lack of prosecution. On March 14, 2023, a \nhearing  notice  was  sent  to  the  parties  setting  this  matter  for  a  dismissal  hearing  on  April  13, \n2023.  The  claimant’s  notice  was  mailed  to  his  widow  at  her  last  known  mailing  address  by \ncertified  and  regular  mail.  According  to  United  States  Postal  Service  tracking  information,  that \nnotice  was  never  picked  up  by  the  claimant’s  widow.  The  claimant’s  daughter  did,  however, \nreach  out  to  the  Legal  Advisor  division  of  the  Commission  on  February  15,  2023,  for  an \nexplanation  of  the  respondents  filing  of  the  Motion  to  Dismiss  and  impending  hearing  for  that \nmotion. The claimant’s daughter indicated she or her mother would call back if needed. \n\nSadler- H102105 \n \n-2- \nThe  claimant  was  involved  in  a  single  vehicle  accident  on  November  24,  2020,  which \nresulted in his death. No action has been taken by the claimant’s family to prosecute this case. \nGiven  the  lack  of  activity  or  effort  to  prosecute  and  move  this  case  forward  and  the \nclaimant’s  widow’s  lack  of  attendance  at  the  hearing,  I  do  think  it  is  appropriate  that  I  dismiss \nthis matter without prejudice. \nAfter  a  review  of  the  record  as  a  whole,  to  include  all  matters  properly  before  the \nCommission,  and  having  had  an  opportunity  to  hear  the  statements  of  Respondent  No.  1’s \nattorney,  I  find  that  this  matter  should  be  dismissed  without  prejudice  for  failure  to  prosecute \npursuant to Commission Rule 099.13. \n ORDER \n Pursuant  to the  above  statement  of  the  case  and  Commission  Rule  099.13,  I  have  no \nalternative but to dismiss this claim in its entirety, without prejudice, for failure to prosecute. \n If  respondents  have  not  already  done  so,  they  are  directed  to  pay  the  court  reporter, \nVeronica Lane, her fees and expenses within thirty (30) days of receipt of her invoice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":3026,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H102105 STEPHEN SADLER (DEC’D), Employee CLAIMANT PALMETTO ENGINEERING, Employer RESPONDENT TRISTAR CLAIMS MANAGEMENT SERVICES, Carrier/TPA RESPONDENT OPINION FILED MAY 9, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope ...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:07:24.186Z"},{"id":"full_commission-G503430-2023-05-05","awccNumber":"G503430","decisionDate":"2023-05-05","decisionYear":2023,"opinionType":"full_commission","claimantName":"Byron Watkins","employerName":"L.A. Darling Company, LLC","title":"WATKINS VS. L.A. DARLING COMPANY, LLC. AWCC# G503430 G902279 G902281 & G903969 MAY 5, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Watkins_Byron_G503430-G902279-G902281-G903969_20230505.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Watkins_Byron_G503430-G902279-G902281-G903969_20230505.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NOS.  G503430 G902279 G902281 & G903969  \n \nBYRON D. WATKINS, \nEMPLOYEE \n \nCLAIMANT \nL.A. DARLING COMPANY, LLC.,  \nEMPLOYER \n \nRESPONDENT \nTRAVELERS INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1  \n \n \nRESPONDENT NO. 2 \n  \n      \nOPINION FILED MAY 5, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents No. 1 represented by the HONORABLE R. SCOTT \nZUERKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \n ORDER \n The claimant in the above-styled matter has filed an “Appeal” entitled \n“Objections of the Judge’s Opinion with Prejudice.”  The claimant asks the \nFull Commission to “disregard” the administrative law judge’s opinion, and \nthe claimant asks the Full Commission to allow introduction of photographs.  \nThe Full Commission denies the claimant’s motion.   \nAn administrative law judge filed an opinion on June 25, 2021.  The \nadministrative law judge found, among other things, that the claimant did \nnot prove he was entitled to additional benefits.  The Full Commission \n\nWATKINS - G503430, G902279, G902281 & G903969  2\n  \n \n \naffirmed and adopted the administrative law judge’s decision in an opinion \nfiled March 9, 2022.  The claimant appealed to the Arkansas Court of \nAppeals.  In a Formal Order February 22, 2023, the Court of Appeals \ngranted the respondents’ motion to dismiss the claimant’s appeal.  Watkins \nv. L.A. Darling Co., CV-22-451.  In a Formal Order entered March 29, 2023, \nthe Court of Appeals denied a motion by the claimant “to not dismiss case.”  \nWatkins v. L.A. Darling Co., CV-22-451.   \nWhen deciding any issue, the Commission shall determine, on the \nbasis of the record as a whole, whether the party having the burden of proof \non the issue has established it by a preponderance of the evidence.  Ark. \nCode Ann. §11-9-704(c)(2)(Repl. 2012).  In the present matter, the claimant \nhas not submitted any probative evidence demonstrating that the Full \nCommission should disregard the prior opinion of the administrative law \njudge, or that the Full Commission should allow submission of new \nphotographs.   \nThe Full Commission therefore denies the claimant’s motion.   \nIT IS SO ORDERED.     \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2682,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. G503430 G902279 G902281 & G903969 BYRON D. WATKINS, EMPLOYEE CLAIMANT L.A. DARLING COMPANY, LLC., EMPLOYER RESPONDENT TRAVELERS INSURANCE COMPANY, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:2","granted:2","denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.367Z"},{"id":"alj-H005899-2023-05-04","awccNumber":"H005899","decisionDate":"2023-05-04","decisionYear":2023,"opinionType":"alj","claimantName":"Cheryl Green","employerName":"Wabash Wood Products","title":"GREEN VS. WABASH WOOD PRODUCTS AWCC# H005899 MAY 4, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GREEN_CHERYL_H005899_20230504.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GREEN_CHERYL_H005899_20230504.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H005899 \n \nCHERYL GREEN, Employee                                                                           CLAIMANT \n \nWABASH WOOD PRODUCTS,  Employer                                               RESPONDENT                         \n \nSENTRY INSURANCE COMPANY, Carrier                                              RESPONDENT \n \n \n \n OPINION FILED MAY 4, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in  Harrison, \nBoone County, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents represented by JARROD PARRISH, Attorney, Little Rock, Arkansas. \n \n \n \n STATEMENT OF THE CASE \n  \n On  April  6,  2023,  the  above  captioned  claim  came  on  for  hearing  at  Harrison, \nArkansas.    A  pre-hearing  conference  was  conducted  on  February  1,  2023  and  a  pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The claimant sustained a compensable injury to her left shoulder on June 18, \n2020. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n\nGreen – H005899 \n \n2 \n \n1.  Compensability of injuries to claimant’s spine and brain on June 18, 2020. \n2.   Related medical. \n3.   Temporary total disability benefits. \n4.    Compensation rate. \nThe claimant contends that in addition to her left shoulder injury she also suffered \ncompensable  injuries  to  her  spine  (all  three  levels)  and  to  her  brain.    She  requests \npayment of related medical benefits and temporary total disability benefits. \nThe respondents contend that all appropriate benefits have been paid in this claim.  \nRespondents have not controverted claimant’s entitlement to benefits associated with her \nleft shoulder.  Claimant has not suffered compensable injuries to her brain or any part of \nher spine.  To the extent claimant can establish compensability of any injury to her spine, \nthe treatment with Dr. Gocio is not reasonable, necessary, and causally related to any \nacute  work-related  event  occurring  at  Wabash.    Claimant’s  claim  for  temporary  total \ndisability  benefits  is barred  by  the  fact  that any off  work  status  she may have  endured \nwas  not  causally  related  to  any  work  injury  accepted  or  alleged.    Respondents \naccommodated any restrictions claimant presented them with any she did not return to \nmodified duty work when offered.  Claimant’s current problems, if any, are a result of a \nnew accident or onset of symptoms occurring while she worked at Pace Industries. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nGreen – H005899 \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1.  The stipulations agreed to by the parties at a pre-hearing conference conducted  \non February 1, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact.    \n 2.   Claimant has failed to meet her burden of proving by a preponderance of the \nevidence  that  she  suffered  compensable  injuries  to  her  brain,  cervical  spine,  thoracic \nspine, or lumbar spine on June 18, 2020.  \n \n FACTUAL BACKGROUND \n Claimant is a 41-year-old woman with some college credit.  She testified that she \nbelieves she began working for respondent in October 2019.  At some point, she put in a \nbid for repair specialist and was placed in that position.  Claimant was performing this job \nat the time of her accident on June 18, 2020, when she was struck by a heavy wooden \nboard.  Respondent has accepted a compensable injury to claimant’s shoulder in the form \nof a rotator cuff tear.  Claimant underwent surgery by Dr. Christopher Arnold to repair the \ntear on September 10, 2021.   \n Claimant has filed this claim contending that in addition to the left shoulder, she \nalso suffered injuries to her brain, cervical spine, thoracic spine, and lumbar spine.  She \nis  requesting  payment  of  medical  expenses  for  those  conditions  as  well  as  disability \nbenefits for time missed from work. \n \nADJUDICATION \nClaimant contends that in addition to her compensable left shoulder injury, she  \n\nGreen – H005899 \n \n4 \n \nalso suffered compensable injuries to her brain, cervical spine, thoracic spine, and lumbar \nspine on June 18, 2020.  Claimant’s claim is for a specific injury, identifiable by time and \nplace of occurrence.  Arkansas workers’ compensation law requires that in order to prove \na compensable injury as a result of a specific incident, identifiable by time and place of \noccurrence, the claimant must establish four things by a preponderance of the evidence:   \n  (1)  an injury arising out of and in the course of employment; \n(2)  that the injury caused internal or external harm to the body \nthat required medical services or resulted in disability or death; \n \n (3) medical evidence supported by objective findings, as \n defined in A.C.A. §11-9-102(16), establishing the injury; and, \n \n (4)  that the injury was caused by a specific incident identifiable \n by time and place of occurrence.  \n \nA.C.A. §11-9-102(4)(A)(i); McCutchen v. Human Development \nCenter, 2018 Ark. App. 239. \n \n \n Preponderance  of  the  evidence  means  the  evidence  having  greater  weight  or \nconvincing force.  Metropolitan National Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W. 3d 252 (2003).   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet her burden of proof.   \n First, I find that claimant has failed to prove by a preponderance of the evidence \nthat she suffered a compensable injury to her brain on June 18, 2020.  I note that claimant \nhas acknowledged that prior to June 18, 2020 she had been  diagnosed as bipolar with \ndepression  and  had  been  seeking  mental  health  counseling.    I  also note  that  claimant \nacknowledged that she does not know if she suffered an injury to her brain on June 18, \n\nGreen – H005899 \n \n5 \n \n2020,  but  was  making  that  claim  because  Dr.  Keegan  had  indicated  that  she  had.  \nTestimony  regarding  statements  made  by  Dr.  Keegan  are  hearsay  and  not  credible \nevidence.  No medical reports from Dr. Keegan are in evidence and there is no medical \nevidence  supported  by  objective  findings  establishing  an  injury  to  claimant’s  brain.  \nTherefore,   I  find  that   claimant  has  failed   to  meet   her   burden   of   proving   by  a \npreponderance of the evidence that she suffered a compensable injury to her brain on \nJune 18, 2020.   \n Claimant  also  contends  that  she  suffered  compensable  injuries  to  her  cervical \nspine, thoracic spine, and lumbar spine on June 18, 2020.  Claimant has received medical \ntreatment  from  Dr.  Allan  Gocio  for  her  spine.    In  a  report  dated  March  18,  2021,  he \nindicated  that  an  MRI  scan  of  claimant’s  cervical  spine  showed  moderate  to  severe \nspondylosis C5-6 with spinal stenosis.  Dr. Gocio recommended surgery in the form of an \ninterior  cervical  discectomy  fusion  at  C5-6  and  he  performed  that  surgery  on  April  20, \n2021.   \n Medical  records  submitted  by  the  respondent  indicate  that  claimant  has  an \nextensive history of chronic pain involving her spine.  Medical records as far back as July \n1,  2013  refer  to  chronic  neck  pain.    In  an  emergency  room  report  dated  July  1,  2013, \nclaimant  was  complaining  of  headaches  that  she  felt  were  related  to  her  chronic neck \npain caused by a prior injury.   \n On August 8, 2013, claimant was evaluated by Dr. Ronald Tilley with complaints \nof  pain  in  her  neck,  lower  back,  and  mid-back.    He  indicated  that  claimant  reported  a \nwork-related injury at Tyson and also a remote history of multiple car accidents that had \naggravated  lower  back  pain.    He  also  stated  that  claimant  had  been experiencing  this \n\nGreen – H005899 \n \n6 \n \npain for two years and that on average her pain rated 6/10 with a rating of 9/10 on that \nparticular day.  Dr. Tilley’s report also states the following: \n \n  When she was injured on the job she underwent cervical \n  MRI which showed herniated disc at c5-c6.  She was \n  supposed to undergo physical therapy and possible \n  injection therapy, but then was lost to follow up. \n \n \n This  is  the  same  location  upon  which  Dr.  Gocio  performed  surgery  on  April  20, \n2021.   \n In  his  report  of  October  23,  2013,  Dr.  Tilley  indicated  that  claimant  was  having \nlower  back  pain that was  radiating down  her  left  leg  into  her  foot.   He  also  stated  that \nclaimant had injections in the past that were not successful.  Dr. Tilley treated claimant \nwith hydrocodone. \n Subsequent  medical  reports  from  Interventional  Pain  Clinic  and  the  emergency \nroom  indicate  that  claimant  continued  to  have  complaints  of  chronic  pain  involving  her \nspine  for  which  she  sought  pain  medication.    Dr.  Tilley  even  gave  claimant  a  cervical \nepidural steroid injection on May 27, 2014.   \n On June 24, 2014, claimant was seen in the emergency room complaining of back \npain and requesting pain medication and Xanax.  On June 27, 2014, claimant was seen \nin the emergency room complaining of neck pain following a fall  down stairs.  On June \n30, 2014, claimant was seen in the emergency room complaining of low back pain and \nrequesting pain medication.   \n An ambulance report dated September 4, 2014 indicates that claimant was found \nsitting partially in a vehicle that had overturned with complaints of head and neck pain.  A \n\nGreen – H005899 \n \n7 \n \ncervical collar was applied.  On April 15, 2015, claimant was seen in the emergency room \nwith complaints that included neck pain following an alleged assault and requesting pain \nmedication. \n While it is clear that claimant had a pre-existing history of complaints involving her \ncervical, thoracic, and lumbar spine, claimant can still prevail if she can prove that those \npre-existing conditions were aggravated by the incident on June 18, 2020.  However, an \naggravation is a new injury resulting from an independent incident, so it  must meet the \ndefinition of a compensable injury in order to establish compensability for the aggravation.  \nGreen County Judge v. Penney, 2019 Ark. App. 552, 589 S.W. 3d 478.   \n June 18, 2020 was a Thursday and claimant was not scheduled to work on Friday.  \nClaimant  went  back  to  work  on  Monday  and  went  to  report  her  problems  to Corey \nJackson.    At  the  hearing  claimant  testified  that  she  did  not  remember  whether she \nmentioned having neck pain to Jackson at that time.  She also acknowledged that at her \ndeposition she testified that she did not mention neck pain to Jackson when she spoke to \nhim because at that time only her shoulder was hurting. \n The first medical report following the  June 18, 2020 incident is a report from Dr. \nJackson dated June 22, 2020, in which claimant is diagnosed with acute pain of the left \nshoulder.  Notably, there is no mention of any complaints of pain involving the cervical, \nthoracic, or lumbar spine.   \n Claimant  did  eventually  make  those  complaints  and  underwent  surgery  on  her \ncervical spine by Dr. Gocio.  However, as previously noted, his surgery was at the same \nlevel (C5-6) as claimant’s prior complaints.  Additionally, I note that claimant admitted that \nshe did not inform Dr. Gocio about her prior spine complaints. \n\nGreen – H005899 \n \n8 \n \n In short, I believe that claimant believes that she injured her brain, cervical spine, \nthoracic spine, and lumbar spine as a result of the incident on June 18, 2020.  However \nsincere  that  belief,  belief  by  itself  is  not  sufficient.    Instead,  Arkansas  workers’ \ncompensation law states that claimant has the burden of proving by a preponderance of \nthe evidence that she suffered a compensable injury to her cervical, thoracic, and lumbar \nspine on June 18, 2020.  I find based on the evidence presented that claimant has failed \nto  meet  that  burden  of  proof.    The  medical  evidence  contains  an  extensive  history of \nchronic pain involving claimant’s spine for which she has sought medical treatment and \npain  medication.    This  history  includes  prior  work  injuries,  motor  vehicle  accidents, \npersonal accidents, and assaults.  Following the incident on June 18, 2020 claimant did \nnot mention any injury to Jackson other than her left shoulder.  Likewise, at the time of \nher first medical treatment on June 22, 2020 claimant only mentioned left shoulder pain \nwith no mention of her brain or any part of her spine.  While claimant did undergo surgery \non her cervical spine, the surgery was performed at the same location as claimant’s prior \ncomplaints.  I do not find based on the evidence that claimant has proven that her prior \ncervical,  thoracic,  or  lumbar  complaints  were  aggravated  by  the  incident  on  June  18, \n2020.  Therefore, she has failed to prove a compensable injury to the cervical, thoracic, \nor lumbar spine.           \n \nORDER \n \n Claimant  has  failed  to  meet  her  burden  of  proving  by  a  preponderance  of  the \nevidence  that  she  suffered  a  compensable  injury  to  her  brain,  cervical  spine,  lumbar \nspine,  or  thoracic  spine  on  June  18,  2020.      Therefore,  her  claim  for  compensation \n\nGreen – H005899 \n \n9 \n \nbenefits is hereby denied and dismissed. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":14267,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H005899 CHERYL GREEN, Employee CLAIMANT WABASH WOOD PRODUCTS, Employer RESPONDENT SENTRY INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED MAY 4, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Harrison, Boone County, Arkansas. Claimant...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["shoulder","cervical","thoracic","lumbar","rotator cuff","back","neck","herniated"],"fetchedAt":"2026-05-19T23:07:13.738Z"},{"id":"alj-H104716-2023-05-03","awccNumber":"H104716","decisionDate":"2023-05-03","decisionYear":2023,"opinionType":"alj","claimantName":"Dennis Brewer","employerName":"City Of West Memphis","title":"BREWER VS. CITY OF WEST MEMPHIS AWCC# H104716 MAY 3, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Brewer_Dennis_H104716_20230503.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brewer_Dennis_H104716_20230503.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H104716 \n \n \nDENNIS B. BREWER, DEC’D, EMPLOYEE CLAIMANT \n \nCITY OF WEST MEMPHIS, \nSELF-INSURED EMPLOYER RESPONDENT \n \nARK. MUN. LEAGUE, \nTHIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED MAY 3, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  April 28,  2022,  in \nMarion, Crittenden County, Arkansas. \n \nClaimant  (through  his  widow  Dorothy  Brewer)  represented  by  Mr.  Kenneth  A. \nOlsen, Attorney at Law, Bryant, Arkansas (neither appearing). \n \nRespondents  represented  by  Mr.  Jarrod  S.  Parrish,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.  A  hearing  on  the  motion  was  conducted  on  April  28,  2023,  in \nMarion,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant’s  estate \n(through  his  widow  Dorothy  Brewer) failed  to  appear  at  the  hearing;  and  his \ncounsel waived his appearance.  Without objection, the Commission’s file on the \nclaim has  been  incorporated  herein  in  its entirety  by  reference.  Admitted  into \nevidence  was  Respondents’  Exhibit  1—forms,  pleadings  and  correspondence \nrelated to the claim—consisting of one (1) index page and twelve (12) numbered \npages thereafter. \n\nBREWER – H 104716 \n \n2 \n \n \n The record reflects the following procedural history: \n Per  the  First  Report  of  Injury  or  Illness  filed  on  June  2,  2021,  Claimant \npurportedly  contracted  cancer  as  a  result  of  exposure  to  certain  chemicals  at \nwork,  resulting  in  his  death  on  May  31,  2020.    According  to  the  Form AR-2  that \nwas filed on June 4, 2021, Respondents controverted the claim in its entirety. \n On September  27, 2021,  Claimant’s estate  (through  counsel)  filed a  Form \nAR-C, requesting initial benefits in connection with his alleged injury.  No hearing \nrequest  accompanied  this  filing.    In  response,  Respondent  Arkansas  Municipal \nLeague wrote the Commission on September 28, 2021, reiterating that they were \ncontroverting the claim.  Respondents’ counsel entered their appearance thereon. \n On   August   10,   2022,   Claimant’s   counsel   emailed   the   Commission, \nrequesting a  hearing on  this  claim.    The  file was  assigned  to me  that  same day.  \nOn  August  11,  2022,  I  sent  prehearing  questionnaires  to  the  parties.   When \nClaimant’s  response  was  not  timely  filed,  Respondents  on  September  12,  2022, \nfiled  the  instant  Motion  to  Dismiss.    Therein,  they  alleged  that  dismissal  of  the \nclaim  was  called  for  under  AWCC  R.  099.13  and  Ark.  Code  Ann.  § 11-9-702 \nbecause “Claimant  ha[d]  not  sought  any  type  of  bona  fide  hearing  before  the \nWorkers’  Compensation  Commission  over  the  last  six  months.”  That  day,  I \nemailed Claimant’s counsel, informing him that he had until September 16, 2022, \nto  respond  to  the  questionnaire  in  order  for  me  to  hold  the  Motion  to  Dismiss  in \nabeyance.    Claimant  complied;  on  September  16,  2022,  Claimant’s  response  to \n\nBREWER – H 104716 \n \n3 \n \n \nthe prehearing questionnaire was belatedly filed.  Respondents followed suit that \nsame  day.  A  prehearing  telephone  conference  was  scheduled  for  October 24, \n2022.  At that conference, the parties agreed that the file should be returned to the \nCommission’s  general  files  for  the  time  being  to  allow  for  the  completion  of \ndiscovery.    However,  Respondents  reserved  the  right  to  renew  their  Motion  to \nDismiss at the appropriate time if the case did not proceed. \n Respondents did just that on December 2, 2022, informing the Commission \nby letter that they were renewing their motion.  On December 15, 2022, I emailed \nthe parties, stating: \nRespectfully,  I  think  this  renewal  is  a  bit  premature.    For  that \nreason, I am going to continue to hold the motion in abeyance and \ndiary  this  for  60  days.    If  no  appreciable  progress  has  been  made \non this by then, my office will schedule a hearing on the motion. \n \nHowever,  after  the  60-day  deadline  came  and  went  without  further  action  by \nClaimant’s counsel, on February 17, 2023, I scheduled a hearing on the Motion to \nDismiss for April 28, 2023, at 10:30 a.m. at the Crittenden County Courthouse in \nMarion.    The  hearing  notice  was  sent  not  only  to  the  attorneys  of  record,  but  to \nMs.  Brewer  at  the  address  for  her  listed  in  the  file  and  on  the  Form  AR-C.    She \nsigned for the certified mail on February 23, 2023; and the first-class mail was not \nreturned. \n On April 24, 2023, Claimant’s counsel wrote the Commission, stating: \nWhile  I  agree  that  I  have  not  been  diligent  in  following  up  on \nwhether  medical  records  were  requested  and  received,  please \n\nBREWER – H 104716 \n \n4 \n \n \naccept  this  letter  as  Objection  to  dismissal,  and  request  for  a  full \nhearing. \n \nRespondents’  co-counsel  objected  to  this  in  an  email  sent  on  April  26,  2023, \npointing out, inter alia, that the objection was very late in coming.  Agreeing with \ntheir  position,  I  informed  the  parties  that  day  that  the  hearing  would  remain  as \nscheduled.    The  next  day,  on  April  27,  2023,  Claimant’s  counsel  emailed \nRespondents’  co-counsel  and  myself,  advising  that  he  was  withdrawing  his \nobjection  to  the  Motion  to  Dismiss.    In  a  follow-up  email,  Claimant’s  counsel \nadvised that he would not be attending the hearing. \n The hearing on the Motion to Dismiss proceeded as scheduled on April 28, \n2023.  Both  Claimant’s  estate  (through  Ms. Brewer) and  counsel  therefor  waived \ntheir appearance; but, again, counsel has indicated no objection to a dismissal of \nthis  claim.    Respondents  appeared  through  counsel  and  argued  for  dismissal \nunder the aforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n\nBREWER – H 104716 \n \n5 \n \n \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nthis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl.  2012)  must  prove  their  entitlement  to  the  relief  requested–dismissal  of \nthese  matters–by  a  preponderance  of  the  evidence.    This  standard  means  the \nevidence having greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. \n373,  326  S.W.3d  415;  Smith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206 \nS.W.2d 442 (1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \n\nBREWER – H 104716 \n \n6 \n \n \nClaimant  has  failed  to  pursue the  claim  because  his  estate  has  taken  no  further \naction  in  pursuit  of it—including  appearing  at  the  April  28,  2023,  hearing  on  the \nMotion  to  Dismiss—since  the  prehearing  telephone  conference  on  October  24, \n2022.  Thus, the evidence preponderates that dismissal is warranted under Rule \n13.  Because of this finding, it is unnecessary to address the applicability of  Ark. \nCode Ann. § 11-9-702(a)(4) (Repl. 2012). \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer  Co.,  2005  AR Wrk.  Comp. \nLEXIS  510,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005), the Commission wrote:  “In numerous past decisions, this Commission and \nthe   Appellate   Courts   have   expressed   a   preference   for   dismissals without \nprejudice.”    (Emphasis  added)(citing Professional  Adjustment  Bureau  v.  Strong, \n75  Ark.  249,  629  S.W.2d  284  (1982)).    Respondents  (through  counsel)  at  the \nhearing asked for a dismissal without prejudice.  Based on the above authorities, I \nagree  and  find  that  the  dismissal  of  the  claim  should  be  and  hereby  is  entered \nwithout prejudice. \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n\nBREWER – H 104716 \n \n7 \n \n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":9657,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H104716 DENNIS B. BREWER, DEC’D, EMPLOYEE CLAIMANT CITY OF WEST MEMPHIS, SELF-INSURED EMPLOYER RESPONDENT ARK. MUN. LEAGUE, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED MAY 3, 2023 Hearing before Administrative Law Judge O. Milton Fine II on April 28, 2...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:11.676Z"},{"id":"full_commission-H109777-2023-05-02","awccNumber":"H109777","decisionDate":"2023-05-02","decisionYear":2023,"opinionType":"full_commission","claimantName":"Ronald Steward","employerName":"International Paper Co","title":"STEWARD VS. INTERNATIONAL PAPER CO. AWCC# H109777 MAY 2, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Steward_Ronald_H109777_20230502.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Steward_Ronald_H109777_20230502.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H109777 \n \n \nRONALD L. STEWARD,  \nEMPLOYEE  CLAIMANT \n \nINTERNATIONAL PAPER CO.,   \nEMPLOYER                 RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES, INC. \nCARRIER/TPA RESPONDENT \n \n \nOPINION FILED MAY 2, 2023  \n \nUpon  review  before  the  FULL  COMMISSION,  Little  Rock,  Pulaski  County, \nArkansas. \n \nClaimant  represented  by  the  HONORABLE  MATTHEW  J.  KETCHAM, \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondent  No.  1  represented  by  the  HONORABLE  JOHN  P.  TALBOT, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed October 6, 2022.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n \n \n \n\nSTEWARD – H109777   2\n  \n \n \n \n1. The stipulations agreed to by the parties at a \npre-hearing conference conducted on May 5, \n2022 and contained in a pre-hearing order filed \nthat same date are hereby accepted as fact, as \nis the stipulation announced at the hearing \nregarding the claimant’s compensation rate. \n \n2. Claimant has met his burden of proving by a \npreponderance of the evidence that he suffered \na compensable gradual-onset injury to his right \nbicep. \n \n3. Claimant has met his burden of proof by a \npreponderance of evidence that he is entitled to \ntemporary total disability benefits beginning \nJune 4, 2021 and continuing through January \n31, 2022. \n \n4. Claimant has met his burden of proof by a \npreponderance of the evidence that he is \nentitled to medical benefits in the amount of \n$23,508.36. \n \n5. Respondents have failed to prove by a \npreponderance of the evidence that claimant is \nbarred from receiving benefits due to false \nstatements on his employment application. \n \n6. Respondent has controverted claimant’s \nentitlement to all unpaid indemnity benefits. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's October 6, \n2022 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \n\nSTEWARD – H109777   3\n  \n \n \n \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. §11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. §11-9-715 (Repl. 2012). For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b) (Repl. \n2012).  \n \n \n \n \n \n \n\nSTEWARD – H109777   4\n  \n \n \n \n IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \n \n \nDISSENTING OPINION \n \n  I must respectfully dissent from the Majority’s determination that the \nclaimant sustained a compensable gradual onset right bicep injury while \nworking for International Paper Company. \nI. The claimant has not met his burden of proving that he \nsuffered a gradual onset injury caused by rapid repetitive \nmotion. \n \nArkansas Code Annotated section 11-9-102 (4)(A)(ii) provides that a \ncompensable injury includes “(ii) An injury causing internal or external \nphysical harm to the body and arising out of and in the course of \nemployment if it is not caused by a specific incident or is not identifiable by \ntime and place of occurrence, if the injury is: (a) Caused by rapid repetitive \nmotion.” \nThe supreme court in Malone v. Texarkana Public Schools., 333 Ark. \n343, 969 S.W.2d 644 (1998), noted that the legislature did not establish \n\nSTEWARD – H109777   5\n  \n \n \n \nguidelines as to what constitutes \"rapid repetitive motion\" and that as a \nresult, that determination has been made by the fact-finder in each case. \nAfter reviewing rapid repetitive motion cases, the court in Malone, \nsupra, established a test for analyzing whether an injury is caused by rapid \nrepetitive motion: \"The standard is a two-pronged test: (1) the tasks must be \nrepetitive, and (2) the repetitive motion must be rapid. As a threshold issue, \nthe tasks must be repetitive, or the rapidity element is not \nreached. Arguably, even repetitive tasks and rapid work, standing alone, do \nnot satisfy the definition. The repetitive tasks must be completed \nrapidly.\" Id. The facts of High Capacity Products. v. Moore,  61 Ark. App. 1, \n962 S.W.2d 831 (1998), present a compelling picture of what \nconstitutes rapid repetitive motion. There, the testimony indicated that the \nclaimant used an airgun to assemble blocks by attaching two nuts to each \nblock with a quota of one thousand units per day. Her assembly duties \nrequired her to attach a nut every fifteen seconds. This required three \nmaneuvers to be repeated in succession all day: assembling the separate \nparts, using the air-compressor equipment to attach the parts together with \nnuts, and throwing the units in a box Id. \nWith regard to the alleged injury, the claimant’s job with International \nPaper Company (“IPC”) was “general box worker.” (Hrng. Tr., P. 8). The \nclaimant started this position in March 2019 and alleges he was injured by \n\nSTEWARD – H109777   6\n  \n \n \n \nthe end of May 2019. (Hrng. Tr., Pp. 8, 12-13). The claimant explained that \nfor this job, “the boxes come down the conveyor belt and they are going on \nto a table and we have to check through the boxes to make sure that they \nare correct and no damages. And then we have to push them over to a \nconveyor belt to the left.” (Hrng. Tr., P. 8). The weight of boxes varied from \nan estimated five to fifty pounds. (Hrng. Tr., P. 10). Sliding the boxes is \nassisted by an air pressure thing that helps slide the boxes and by the table \nbeing dampened to be slick. (Hrng. Tr., P. 10). In essence, this position \nconsisted entirely of pushing boxes from one conveyor belt to an inspection \ntable and onto another conveyor platform that actually grabs the boxes, \nturns them, and takes them to another area. (Hrng. Tr., P. 12). \nAny claim for a rapid repetitive motion injury here fails at the second \nprong of the analysis, even if the assessment for the purposes of argument \nthe job was repetitive. There is no proof that the motion required to push \nboxes from one place to another was rapid. While the claimant alleges that \nthe conveyor moved “fast,” he provided no details on how many boxes he \nwould handle per minute, the number of boxes he handled per shift or how \nmuch time was spent on each shift performing these tasks. (Hrng. Tr., P. \n10). The claimant has simply failed to provide any proof that his work was \nrapid in nature other than his self-serving testimony that the conveyor \nmoved fast. Importantly, a claimant’s testimony is never uncontroverted. Nix \n\nSTEWARD – H109777   7\n  \n \n \n \nv. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). \nAs an initial matter, the ALJ stated in his Opinion that “Claimant \ndescribed the work as ‘really fast,’ and that there were times when the \nboxes he was charged with inspecting and placing on a different conveyor \nline were pushing each other; that indicated to me there were times he was \nnot able to keep up with the rapid pace.” (P. 15). There was no testimony \nprovided by the claimant that he was not able to keep up with the rapid \npace and there was no testimony at all as to the pace other than his \nstatement that it was “really fast.” (Hrng. Tr., P. 10). It is up to the claimant \nto prove by a preponderance of the evidence his job was rapid and \nrepetitive and it is not enough for him to state his own opinion that his job is \nrapid and repetitive. With that statement, the claimant reached his own legal \nconclusion which was accepted by the ALJ and the Majority.  \nSimply put, “[s]peculation and conjecture cannot substitute for \ncredible evidence.” Smith-Blair, Inc. v. Jones, 77 Ark. App. 273, 72 S.W.3d \n560 (2002) (citing Dena Constr. Co. v. Herndon, 264 Ark. 791, 575 S.W.2d \n155 (1980)). Since no proof was presented other than the claimant's \nstatement that the conveyor moved fast, he has not satisfied his burden of \nproof that his job was rapid. The statement by the ALJ that the claimant’s \ntestimony indicated to him there were times that the claimant was not able \nto keep up with the rapid pace does not satisfy the claimant’s burden of \n\nSTEWARD – H109777   8\n  \n \n \n \nproof when the record contained no testimony as to the pace of the \nclaimant’s job. \n Even if the claimant successfully establishes that his injury was \ncaused by rapid repetitive motion, he has shown no proof of a causal \nconnection between his injury and his work at IPC. When the primary injury \nis shown to have arisen out of and in the course of employment, the \nemployer is responsible for any natural consequence that flows from that \ninjury. Ingram v. Tyson Mexican Original, 2015 Ark. App. 519 (2015). \nHowever, for this rule to apply, the basic test is whether there is a causal \nconnection between the injury and the consequences of such. The burden \nis on the employee to establish the necessary causal connection. Id. \nThroughout the claimant’s treatment for the right bicep tear, his \nproviders agreed that this was not a workers’ compensation matter. First, at \nan August 31, 2021 visit, Patrick Walton, PA reported that the injury “[d]oes \nnot appear to be a workers comp. issue.” (Resp. Ex. 1, P. 56). Then, on \nOctober 20, 2021, when specifically asked on a disability form whether the \ninjury was work related, Dr. Steven Smith indicated no. (Resp. Ex. 1, P. 63). \nDr. Smith reiterated on January 22, 2022 that this injury was not work \nrelated. (Resp. Ex. 1, P. 71). In addition, in his Operative Report dated \nSeptember 30, 2021, Dr. Smith noted “significant synovitis . . .and actually \nquite a bit of degenerative change” with “grade 3 chondromalacia with some \n\nSTEWARD – H109777   9\n  \n \n \n \ndelamination of the cartilage” and “[s]ignificant bursitis.” (Resp. Ex. 1, P. \n62). This is additional evidence that the claimant’s medical conditions were \nnot work related. \nII. This injury is not compensable due to the Shipper’s \nTransport defense. \n \nIn Shipper's Transport of Georgia v. Stepp, the Arkansas Supreme \nCourt adopted the rule that a claimant's false representation regarding his \nphysical condition in procuring employment will bar the claimant from \nobtaining benefits if the employer shows that (1) the employee knowingly \nand willfully made a false representation as to his physical condition; (2) the \nemployer relied on the false representation and this reliance was a \nsubstantial factor in the hiring; and (3) there was a causal connection \nbetween the false representation and the injury. Whether or not these \nfactors exist are questions of fact for the Commission to resolve findings are \nsupported by substantial evidence. 265 Ark. 365, 578 S.W.2d 232 (1979); \nNewsome v. Union 76 Truck Stop, 34 Ark. App. 35, 805 S.W.2d 98 (1991).  \nThe ALJ correctly determined that the claimant knowingly made false \nrepresentations as to his physical condition. The claimant was required to \ncomplete a questionnaire regarding his physical health, provide his health \nhistory to IPC, and undergo a health assessment with Cynthia Johnson, \nAPRN prior to beginning work. (See Resp. Ex. 2, Pp. 2-11). While the \n\nSTEWARD – H109777   10\n  \n \n \n \nclaimant alleges that he did not understand the questions posed on the \nArkansas Occupational Health Clinic intake questionnaire, his excuses fall \nflat. (See Resp. Ex.2, Pp. 8-9). While the claimant states that he assumed \nthe questionnaire was “saying do you have any of these symptoms now,” \nthe form is clear in asking, “Have you ever had or have you now” a number \nof medical conditions including migraines; neck, shoulder, or arm pain, \ninjury or surgery; back pain, strain, herniated disc, or surgery; and a \ncondition which would require a specific work assignment. (Hrng. Tr, P. 44, \nResp. Ex. 2, Pp. 8-9). The claimant selected “no” for each, directly \ncontradicting his medical history. (See Resp. Ex. 1, Pp.1-47). \nThe claimant’s misrepresentation of his medical history was a factor \nin his employment. Due to the claimant’s self-reporting on the intake \nquestionnaire, Cynthia Johnson approved him to work with no restrictions. \n(Resp. Ex. 2, P. 11). IPC expects prospective employees to answer \ntruthfully on these questionnaires. (Hrng. Tr., P. 60). These responses \naffect an employee’s placement within the company and any job \nrestrictions. Id. While the ALJ notes that the forms the claimant completed \ndishonestly were “Post-Offer/Pre-Placement Health” documentation, he fails \nto investigate the correlation between the information in these forms and \nthe claimant’s final hiring and placement with IPC. The health evaluations \nconducted by IPC impact an employee’s placement and duties and surely \n\nSTEWARD – H109777   11\n  \n \n \n \nimpact their ultimate employability. (Hrng. Tr., P. 61). An employer’s \nreliance on false statements by a prospective employee should not be \nlimited to the moment of hiring - this factor is relevant throughout the hiring \nprocess. A reasonable interpretation of Shippers Transport would support \nthe position of the respondent. The respondent relied on false statements \nmade by the claimant on his employment application when placing him in \nhis specific job, which is a part of the hiring process. A claimant should not \nbe rewarded for making false statements on his employment application. \nFor this reason, IPC’s reliance on the claimant’s false statements is \nsufficient to meet the requirements of a Shipper’s defense. \nThe ALJ determined the respondents failed to show a causal \nconnection between the claimant’s current complaint and his 2019 car \naccident. After his May 11, 2019 accident, the claimant presented at Valley \nHealth Care in Fort Smith on June 26, 2019 complaining of “numbness \ndown right arm and into hand” and radiating right arm pain. (Resp. Ex. 2, P. \n6). The claimant’s complaints of radiating right arm pain continued through \nhis June 27, 2019, June 28, 2019, July 3, 2019 and July 22, 2019 visits with \nValley Health. (Resp. Ex. 1, Pp. 10-12, 15). The claimant visited Valley \nHealth an additional three times with continued complaints of numbness \nand pain in his right arm before being released from care on August 1, \n2019. (Resp. Ex. 1, Pp. 16-19). The claimant then began treating with Dr. \n\nSTEWARD – H109777   12\n  \n \n \n \nDanny Silver at Meridian Clinic in Fayetteville, who stated that the claimant \nreported his pain “interferes with sleep, work and ADL’s.” (Resp. Ex. 1, P. \n26 error in original). At that appointment, the claimant complained of right \narm numbness, right shoulder pain, radiating pain in his right arm and right \nshoulder along with muscle spasms. (Resp. Ex. 1, P. 24). In his past \nmedical history, his symptoms were listed as “strain of tendons at shoulder \nand upper arm level, right arm.” (Resp. Ex. 1, P. 24). At a September 25, \n2019 visit with Dr. Silva, the claimant reported “joint pain, excessive muscle \naches, neck pain, upper extremity pain, shoulder pain, and \nnumbness/tingling sensations.” (Resp. Ex. 1, P. 30). At that visit, Dr. Silva \nconsidered that claimant may have suffered a strain of other muscles, \nfascia, and tendons at his shoulder, upper arm, and right arm. (Resp. Ex. 1, \nP. 31).The claimant was informed that he was unlikely to ever fully recover \nfrom these injuries. (Resp. Ex. 1, P. 6). \nAfter his alleged injury while working for IPC, the claimant presented \nto the Good Samaritan clinic in Fort Smith with complaints identical to those \nfrom 2019, including “a constant discomfort, achy pain” in his right arm. \n(Resp. Ex. 1, P. 48). By June 10, 2021, the claimant’s right shoulder pain \nhad improved. (Resp. Ex. 1, P. 49). From these similarities, it is evident that \nthe claimant’s issues were a result of ongoing damage from his 2019 car \naccident. At that time, no efforts were made to find a concrete source of the \n\nSTEWARD – H109777   13\n  \n \n \n \nclaimant’s right shoulder and arm pain, and his doctors believed he was \nunlikely to fully recover from that injury. For this reason, the respondents \nhave proved the final prong of the Shipper’s defense and should not be \nresponsible for the claimant’s injury. \nAdditionally, Shippers Transport should not be so narrowly \ninterpreted by the ALJ and the Majority in this case. Had the Supreme Court \nin Shippers Transport been presented with the facts of this case, I think \nthey would have reached the same result as I have reached that the \nClaimant should be barred for his untruthful answers on his employment \napplication especially because his answers were used by IPC to determine \nthe particular employment activity to which he should safely be assigned, \nwhich was part of the overall hiring process. The rule of law in the Shippers \nTransport case should be expanded beyond the actual moment of hiring to \nencompass the entire hiring process, including job placement. To narrowly \ndefine the law of the Shippers Transport case destroys the intent of the \nSupreme Court decision to protect employers when claimants have been \nuntruthful in the responses to the questions on the employment \napplications. To rule otherwise merely rewards the claimant for being \nuntruthful and punishes the employer and the workers' compensation \ninsurance carrier for relying on these false statements. This limited defense \ncannot be what the Supreme Court intended when they ruled in the \n\nSTEWARD – H109777   14\n  \n \n \n \nShippers Transport case.  \nFor the reasons stated above, I respectfully dissent. \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":18562,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H109777 RONALD L. STEWARD, EMPLOYEE CLAIMANT INTERNATIONAL PAPER CO., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC. CARRIER/TPA RESPONDENT OPINION FILED MAY 2, 2023 Upon review before the FULL COMMISSION, Littl...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["repetitive","neck","shoulder","back","strain","herniated"],"fetchedAt":"2026-05-19T22:29:46.363Z"},{"id":"alj-H101867-2023-05-02","awccNumber":"H101867","decisionDate":"2023-05-02","decisionYear":2023,"opinionType":"alj","claimantName":"Thurn Apple","employerName":"White River Area Agency On Aging","title":"APPLE VS. WHITE RIVER AREA AGENCY ON AGING AWCC# H101867 MAY 2, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//APPLE_THURN_H101867_20230502.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"APPLE_THURN_H101867_20230502.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H101867 \n \nTHURN K. APPLE, EMPLOYEE        CLAIMANT \n \nv. \n \nWHITE RIVER AREA AGENCY  \nON AGING,  EMPLOYER             RESPONDENT \n \nRISK MANAGEMENT RESOURCES, \nCARRIER/TPA             RESPONDENT \n \nOPINION FILED MAY 2, 2023 \n \nHearing  before  Administrative  Law  Judge,  James  D.  Kennedy, on  March 15,  2023,  in \nMountain Home, Baxter County, Arkansas. \n \nClaimant is represented by Laura Beth York, Attorney-at-Law, of Little Rock, Arkansas. \n \nRespondents  are  represented  by   Melissa  Wood,  Attorney-at-Law, of  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on March 15, 2023, to determine the issue of permanent \nand  total  disability  or,  in  the  alternative,  an  Award  of  wage-loss,  plus  attorney fees  in \nregard  to  the claimant’s compensable  injury  of  a  fractured  sacrum.    A  copy  of  the \nPrehearing  Order  dated  December  20,  2022, was  marked  “Commission  Exhibit  1” and \nmade part of the record without objection.  The Order provided the parties stipulated as \nfollows: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n \n2.  An employer / employee relationship existed on or about February 8, 2021, \nand at all relevant times, when the claimant sustained a compensable injury \nin the form of a fractured sacrum. \n \n\nAPPLE – H101867 \n \n2 \n \n3.  The claimant earned an average weekly wage of $398.40 with a temporary \ntotal  disability  /  permanent  partial  disability  rate  of  $216.00  /  $200.00, \nrespectively. \n \n4.  The Claimant had been assigned a five percent (5%) impairment rating to \nthe body as a whole, which has been accepted by the respondents. \n  \nThe  claimant’s  and  respondent’s  contentions  are  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire and  made  a  part  of  the  record  without \nobjection.  At the time of the hearing, the parties agreed that the issue was the claimant’s \nentitlement  to  permanent  total  disability  or,  in  the  alternative,  wage-loss  benefits plus \nattorney’s fees.   \n Three  (3)  witnesses  testified,  Thurn  Apple,  the  claimant;  Misty  Glenn,  the  office \ncoordinator; and Don Gregory, the Director of HR for White River Area Agency on Aging.  \nThe  claimant’s  exhibit  one  consisted  of eight  (8)  pages  of  a  Vocational  Rehabilitation \nReport  that  was  admitted  into  the  record  without objection.  The  claimant’s  exhibit two \nconsisted  of  seventy-seven  (77)  pages  of  medical  reports  that  was  admitted  into  the \nrecord without objection.  Respondents exhibit  one  consisted of fifty-four (54) pages of \nmedical records that was admitted into the record without objection. Respondents exhibit \ntwo consisted of seven (7) pages of a Vocational Rehabilitation Preliminary Report that \nwas also admitted into the record without objection.  In addition, both parties requested \nthat due to the fact the matter had been tried before, the previous transcript and briefs be \nretained in the Commission’s file as part of the record in regard to this matter.  From a \nreview  of  the  record  as  a  whole,  to  include medical  reports and other matters properly \nbefore  the  Commission,  and  having  had  an  opportunity  to  observe the  testimony  and \ndemeanor of the witnesses, the following findings of fact and conclusions of law are made \nin accordance with Ark. Code Ann. § 11-9-704. \n\nAPPLE – H101867 \n \n3 \n \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  An employer / employee relationship existed on or about February 8, 2021, and \nat all relevant times, when the claimant sustained a compensable injury in the \nform of a fractured sacrum. \n \n3.  The claimant earned an average weekly wage of $398.40 with a temporary total \ndisability / permanent partial disability rates of $216.00 / $200.00, respectively. \n \n4.  That the claimant has been assigned a five percent (5%) rating to the body as \na whole, which has been accepted by the respondents. \n \n5.  That the claimant has failed to satisfy the required burden of proof that she is \nentitled to permanent and total disability but, in the alternative, has satisfied the \nrequired  burden  of  proof,  by  a  preponderance  of  the  evidence,  that  she  is \nentitled to an Award of wage-loss in the amount of five percent (5%). \n \n6.  The  claimant  is  entitled  to  attorney’s  fees  pursuant  to  Ark.  Code  Ann. \n§11-9-715.    This  Award  shall  bear  interest  at  the  legal  rate  pursuant  to  Ark. \nCode Ann. § 11-9-809. \n \n7.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of  the \ntranscript forthwith. \n  \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The claimant,  Thurn K. Apple, was the first witness to testify.  She was born on \nOctober 6, 1954, and was sixty-eight (68) years old at the time of the hearing.  In regard \nto education, she made it halfway through the eleventh grade and then obtained her GED.  \nAfter that, her education consisted of on-the-job training, where she initially worked in an \nassembly-line shirt factory in Mountain Home, Arkansas.   After the shirt factory, she and \nher  husband  owned  and  operated  a  grocery  store  which  they  eventually  sold  and  she \nthen  returned  to  the  shirt  factory  where  she worked  a  total of about  twenty  (20)  years.  \nShe also worked at an apartment complex, a convenience store, and was the manager \nof  the  kitchen  in  a  retirement  home.    In  the  apartment  complex  job,  she  worked  in \n\nAPPLE – H101867 \n \n4 \n \nhousekeeping and cleaned the apartments allowing people to move back in.   She also \nworked  part-time  in  the  evenings  during  this  time  in  a  restaurant  cooking  and  waiting \ntables.  During this period, she also worked a third job at a convenience store as a cashier. \n(Tr. 6-10)  When she went to work at the retirement home, she was the manager in the \nkitchen and slipped on some spilled water, injured her back, and ended up having surgery.  \nShe then moved back to Arkansas. (Tr. 11) \n Upon  returning  to  Arkansas,  she  initially  worked  at  the  Sonic  in  Melbourne, \nArkansas, as the breakfast manager, and later at a Pizza Inn where she again cooked \nand waited tables.  She was then hired by the respondent, White River, in or around 2013, \nwhere she worked as a caregiver and was injured, fracturing her sacrum. (Tr. 12-14)   She \nadmitted  giving a  recorded  statement  to an adjuster  about her prior  medical  problems.  \nShe admitted injuring her neck at the shirt factory, but stated she did not receive surgery \nand returned to work with no restrictions.  She also admitted falling in 2005, while working \nat  a  retirement  center  where  she  injured  her  back  which  required  surgery.    She  also \nadmitted  she  was  in  the  early  stages  of  kidney  failure,  but it  did  not  prevent  her  from \nworking.  She went on to state, “I don’t know if the kidney failure has gotten worse, but \nsince I hurt my back, I have trouble controlling my bowels and kidneys.”  She also agreed \nshe told the adjuster she had been diagnosed with fibromyalgia in the 80’s, and also told \nher about her arthritis and diabetes, but that none of these conditions prevented her from \nworking for the respondent. (Tr. 15-16) \n In regard to the difference in her pain between 2005 after her first back injury and \nsurgery and the 2021 injury, the following testimony occurred: \n\nAPPLE – H101867 \n \n5 \n \nA: Well, with the first injury I didn’t have any trouble with my legs or anything, it was \njust my back.  After surgery, I’ve never had any problems with my back or anything \nat all as far as from the accident in 2001 (sic) since I’ve hurt it. \n \nQ: 2001 or 2021? \n \nA: 21. I’m sorry. \n \nQ: That’s okay \n \nA: In 2021 when I got hurt, this accident has caused me to be numb from my sacrum \narea all the way down my left leg.  And the reason I’m not saying anything about \nmy  right  leg  was  because  it  was  already  numb  from  the  knee  down  from  a  car \nwreck in 73. \n \nQ: Okay. \n \nA: And to this day I’m still having a lot of trouble with being able to balance myself if I \nhave to sit too long or stand too long, and I’ll have muscle cramps in the left side \nof my leg, my left leg, and still have the numbness around my sacrum.   And it’s \nembarrassing, but if I have to go to the bathroom, I’d better go or I’m liable to mess \nmyself up. (Tr. 17) \n \nThe  claimant  went  on  to  state  that  a  car  accident  affected  her  right  leg  and the \naccident in 2021 did not affect her right leg, but only her left leg.  The injury in the 70’s did \nnot prevent her from working, or create balance, bladder, or bowel problems like the injury \nin 2021. (Tr. 18) \n   The claimant initially saw Dr. Spann, her primary care physician, who ordered an \nMRI and referred her to Dr. Seale who did not recommend surgery.  She stated she was \nnot eligible for  epidural  steroid  injections  because  she was allergic to  them,  which  she \nlearned back in 2005.  She was referred to Dr. Varela for an independent medical exam \nand he did not examine her per se, but talked to her and told her nothing was wrong with \nher and released her to return to work. (Tr. 19-21)  Initially, she was not offered light-duty, \nbut it was later offered to her and she answered phones and cleaned up and straightened \nthe offices for three (3) hours a day.  She thought this lasted about three (3) weeks but \n\nAPPLE – H101867 \n \n6 \n \nwas not sure.  She felt terrible at the end of the day and after about two  (2) or three (3) \nweeks  she  was  sent  home  and  was  told  she  was  not  needed  at  that  time.    Then \napproximately six (6) or so weeks later, she was asked to return to light-duty where she \nagain worked three (3) hours a day and again felt the same after work as before.  This \nagain lasted about two (2) or three (3) weeks and she was then told they did not have \nanything for her and was never called back.  She thought she then received a phone call \ntelling her she had been let go and there was no work available. (Tr. 22-24) \n There  was  a  change  of  physician  to  Dr.  Knox  and  he  assessed  her  with  a five \npercent (5%) impairment rating which was accepted by the respondents.  She has since \nreturned  to  Dr.  Spann,  her  primary  care  physician,  and  has  been  placed  on  work \nrestrictions of light-duty with no lifting, bending, or twisting.  She agreed that Dr. Spann \nhad  provided  that, “She  is  unable  to  work  with  gainful  employment  due  to  pain,  leg \nweakness, and a tendency to fall”.  She went on to state she has not worked since her \ntermination. (Tr. 25-26) \n   She  also  agreed  the  respondents  hired  someone  named  Keondra  Hampton  to \nperform a vocational rehabilitation preliminary report but that she never met her and never \nhad any discussions with her.  She did admit that Ms. Hampton identified jobs for her, \nand one was with Chartwell and one with Sonic.  The claimant was allowed to answer if \njobs  were  available  over  the  objection  of  the  respondent  and  the  claimant  stated she \ncontacted them, but none were available.  (Tr. 27-31) \n   The claimant admitted she could pick up a gallon of milk but that it does bother her \nunless she’s just moving it to set it down.  She can no longer work in her flower garden.  \nShe  also  admitted  she  could  drive  and  could  generally  hold  out  for  about  thirty  (30) \n\nAPPLE – H101867 \n \n7 \n \nminutes or a bit more.  However, the trip to the courthouse for the hearing was fifty (50) \nsomething  miles  and her  friend  drove  her.   In  regard  to  her  housework,  her  daughters \nnow  have  to  help  her, and she  is  not  supposed  to  mop  or  vacuum.  (Tr.  32-33)  On  a \ntypical day, she gets up and fries an egg which is hard to do because before getting it \nfried she is hurting, and then goes and sits in her recliner for fifteen (15)  to twenty (20) \nminutes and then goes to the bathroom.  She watches TV and can make it to the mailbox \nwhich is about fifty (50) feet or so away.  In regard to grocery shopping, she admitted she \nsometimes does it and part of the time her daughter does it.  After shopping, she takes \nthe things that need to be refrigerated into the house and sometimes has to wait an hour \nor two before bringing the remainder into the house.  She again stated her left leg was \nnumb, but she has not yet fallen because there was always something to hang on to or \nlean against like a hallway. (Tr. 34-36) \n   Under  cross-examination,  the  claimant  admitted  that  while  working  for  the  shirt \nfactory for twenty (20) years, she held many positions all involving sewing.  In regard to \nworking in the grocery store, the claimant admitted she ran the store while her husband \nworked in the garage and she checked people out, made sandwiches, stocked, ordered \nproducts and handled the paperwork.  She also admitted her previous surgery back in or \naround 2005 involved the placement of bolts, screws, and plates, and they were still in \nplace. (Tr. 37-38)  She settled that claim for $30,000.00.   \nShe had gone to work part-time for the respondent about five (5) years ago due to \nthe fact she did not want to work as much, and had been told she, “might be starting with \nthe first kidney failure,” and consequently, she decided to cut back because she started \ntaking her  social  security.    She  was  working about  thirty  (30)  hours  a  week.   She  also \n\nAPPLE – H101867 \n \n8 \n \nadmitted  applying  for  social  security  disability  at  the  age  of  sixty-four  (64)  due  to  her \nfibromyalgia, but  it  was  not  approved.    She  also  agreed  Dr.  Spann  had  previously \ndiagnosed her with left hip pain and osteoarthritis, along with fibromyalgia.  She also did \nnot  dispute  a  diagnosis  of  chronic  pain  syndrome,  cervical  degenerative  disc  disease, \nproblems with the right shoulder, and fatigue.  She also remembered a complaint of left \nknee pain.  She went on to provide that with fibromyalgia, you just hurt everywhere.  She \nalso admitted that if Dr. Spann stated that she had left hip pain and pain in both knees in \nNovember of 2020, she agreed.  She would not agree with the report providing for lower \nback pain, however.  In regard to Dr. Luke Knox, who she saw once, she agreed that the \nonly thing he did was to provide a disability rating and he did not assign any restrictions. \n(Tr. 39-42)  In regard to Dr. Varela, she stated, “He didn’t tell me anything other that there \nwasn’t anything wrong with me, that I wouldn’t work.” (Tr. 43)  She also agreed that with \nthe  exception  of  Sonic  and  KFC,  she  had  contacted  the  employers  the  month  of  the \nhearing which was mentioned under direct-examination. (Tr. 44) \n At the conclusion of the claimant’s testimony, Misty Glenn, the office coordinator for \nWhite  River  Area  Agency  on  Aging,  was  called  by  the  respondents.    She  testified  the \nrespondents offered the claimant light-duty and she was in the office when the claimant \nwas straightening and cleaning up.  At that time, the claimant was under the restrictions \nof Dr. Spann and the work offered was within those restrictions.  “After she came to the \noffice and started working, she couldn’t sweep, she couldn’t push the vacuum, and she \ncouldn’t take out the trash because she wasn’t supposed to lift she said, and she wasn’t \nsupposed to bend.”  Ms. Glenn stated the claimant didn’t do any of these and she, “pretty \nmuch dusted and answered the phone and –.  I don’t even know that she answered the \n\nAPPLE – H101867 \n \n9 \n \nphone, because we are fully staffed in the office, but that was something she could do if \nthat came up.”  Ms. Glenn further stated that eventually the claimant was moved to a desk \nout front, but there was a bit of a conflict because she heard the claimant and another \naide talking and the claimant mentioned she was basically getting paid to do nothing. The \nclaimant was then moved to the back office.  She also testified the claimant was moving \n“fine.” (Tr. 47-49)  \nUnder  cross-examination,  Ms.  Glenn  admitted  she  had  testified  in  the  previous \nhearing  that  there  was  no  light-duty  available  at  White  River,  and had  further  stated, \n“There  was,  to my  knowledge,  since  I’ve  worked  there,  there  were  no  light  duty  jobs.  \nThere was a minimum qualifications, minimum, you know, lifting restrictions, that there \nwas  none  available.”    She  went  on  to state  the  job  was  created  specifically  for  the \nclaimant.    The  claimant  accepted  light-duty  and  came  to  work,  and  she  lasted  a  few \nweeks.    Ms.  Glenn  stated  it  was  her  understanding  that  the  claimant  was  released \nbecause there were no restrictions on what she could do and she could therefore go back \ninto the homes.  “I don’t think that she was terminated at that time, we just didn’t have \nanything to offer her at that time since she could not take the clients that was available \ndue to her being unable to work, per her.”  Ms. Glenn admitted the claimant came and \nperformed light-duty twice.  She was not aware of any long-term, light-duty jobs available \nand agreed that the claimant worked three (3) hours a day when she worked. (Tr. 50-52) \nDonald  Gregory,  the  HR  Director,  was  also  called  by  the  respondents and had \nbeen in that position for almost a year.  He had one assistant that worked with him, so \nthey were  the  “customer  service portion  of  the  company  to  an extent.”   He testified he \nwas familiar with the claimant and was the one that terminated the claimant by sending \n\nAPPLE – H101867 \n \n10 \n \nher a letter.  The reason for her termination was, “the second opinion that we got from the \nphysician indicated that the issues were not related to the workers’ compensation injury, \nand that the restrictions did not meet the job requirements, so the release was based on \nthat.”  He stated he was referring to the opinion of Dr. Varela and that the claimant did \nnot have any restrictions due to her work injury. (Tr. 53-54) \nMr.  Gregory  stated  that  there  was  a  huge  box  of  heavy-duty  binder  clips  that \nneeded  to  be  separated  and  the  claimant  was  assigned  that  job.    The  following \nquestioning then occurred: \nQ: So the restrictions that she had unrelated to the work injury, could she have done \nher job as an aide with those restrictions? \n \nA: With the restrictions that Doctor Varela put in place? \n \nQ:       Correct. \n \nA:   No. (Tr. 55) \n \nUnder  cross-examination,  Mr.  Gregory  testified  he  was  not  familiar  with  the \nclaimant prior to her date of injury, stating  her injuries occurred before he started, if his \nmemory served him correctly.  He could not testify to her restrictions prior to the injury, \nand that all he knew was about her restrictions after her injury. (Tr. 56) \nMr. Gregory was also asked about Ms. Glenn and he admitted he was familiar with \nher.  He stated light-duty was offered to the claimant and he had never had an opportunity \nto work with the claimant due to his office being in Batesville.  He was not sure if there \nwas any long-term disability available at White River since he had not had that situation.  \nHe was also questioned about the vocational assessment and stated he was not familiar \nwith it.  He was then handed the report and responded that there were no light-duty jobs \nidentified at White River in the report. (Tr. 57-60)    \n\nAPPLE – H101867 \n \n11 \n \nThe  entirety  of  the  medical  and  documentary  evidence  submitted  have  been \nreviewed.  The claimant’s medical reports consisting of seventy-seven (77) pages were \nadmitted without objection.  Claimant presented to the Stone County Medical Center ER \non February 8, 2021, after  she reported she fell on her bottom and then onto her back \nhitting  both  the  back  of  her  head  and  both  elbows  and  neck  and  reported  pain  in  her \nelbows,  sacral  area,  head,  neck,  and  elbows  with  a  small  bruise  reported  on  her  left \nforearm and reported, “soreness all over.”   A CT of the pelvis provided the bony structures \nwere intact with bilateral arthritic change and with a bilateral transverse fracture through \nthe 4\nth\n sacral segment, which was of indiscriminate age, but could be acute.  A CT of the \nhead  showed  no  hemorrhage,  mass  effect,  or  midline  shift,  with  no  acute  skeletal \nabnormality. (Cl. Ex. 1, P. 1-16)  A medical report by Dr. Eric Spann dated February 22, \n2021, provided for a finding of a closed fracture of the coccyx with routine healing, along \nwith other chronic pain. (Cl. Ex. 1, P. 17-20)  The claimant returned to Dr. Spann on March \n1, 2021, and the report provided for paraspinal muscle spasm, with a closed fracture of \nthe coccyx, with routine healing. (Cl. Ex. 1, P. 21-24)  The claimant returned to Dr. Spann \non March 5, 2021, and March 15, 2021. (Cl. Ex. 1, P. 25-32) \nThe claimant then presented to the Stone County Medical Center for an MRI of the \npelvis on March 26, 2021.  The MRI report provided for a bone marrow signal abnormality \nin the sacrum at the S3-4 level to the right of the midline which might represent a subtle \nfracture,  although  not  classic  for an  insufficiency  fracture.    Sacroiliac  joints  appeared \nintact with minimal fluid in the left sacroiliac joint.  No fracture or dislocation was seen at \nthe hips and the coccygeal segments appeared intact with no definite impingement of the \nsacral nerve roots identified. (Cl. Ex. 1, P. 33) \n\nAPPLE – H101867 \n \n12 \n \nApproximately  five  (5)  months  later,  the  claimant  presented  to  Payton  Ransom, \nP.A.,  on  August  11,  2021,  and  the  notes  provided  the  claimant  presented  to  discuss \nconcerns about her sacrum and left leg.  The report provided the claimant had suffered \npain off and on throughout the years with a history of a sacral fracture when she was 18, \ndue to a motor vehicle accident, but that the pain had been greatly exacerbated since her \nfall on February of 2021. (Cl. Ex. 1, P. 34-38)  The claimant presented to OrthoArkansas \non September 20, 2021, for an MRI of the lumbar spine.  The report provided there was \na possible small left foraminal to extraforaminal protrusion type disc herniation, although \nthere was  no  definite  mass  on  the  adjacent  exiting  left  L5  nerve  root.    Left  foraminal \nstenosis was moderate and right foraminal stenosis was mild.  There was mild foraminal \nstenosis on the right at L2-L3 and L3-L4, bilaterally at L4-L5, and on the right at L5-S1. \n(Cl. Ex. 1, P. 39)  \nThe  claimant  then  returned  to  Payton  Ransome,  P.A.,  on  September  21,  2021, \nwho  opined  that  the claimant’s  MRI  did  reveal  a  disc  protrusion  that was  an  objective \nfinding  of  injury  that  matched the  patient’s  subjective  complaints  and  symptoms.    The \npatient’s symptoms began on and after the work injury.  Therefore, it was within a degree \nof medical certainty that at least fifty-one percent (51%) of the patient’s current symptoms \nare  directly  related  to her  work  injury.  The  patient  does  have  an  extraforaminal  disc \nprotrusion on  the  left at  L5-S1  that was  creating her  left  leg  radiculopathy.    The  report \nalso provided the claimant couldn’t have epidural steroid injections. (Cl. Ex. 1, P. 40-44) \nThe claimant returned to Dr. Spann on November 15, 2021, who stated she could \nnot return to work until April 22, 2022.  The claimant returned to Dr. Spann on December \n13, 2021, to discuss disability paperwork.  The claimant then again returned to Dr. Spann \n\nAPPLE – H101867 \n \n13 \n \nthree (3) months later, on March 21, 2022, for a follow-up where she stated her legs got \ntingly  and  the  neurosurgeon  had  suggested  surgery.    She  then  returned  to Dr.  Spann \nagain on April 7, 2022, and he issued another off-work note which provided that she could \nwork two (2) to three (3)  hours per day. (Cl. Ex. 1, P. 45-54.) \nThe claimant was seen by Dr. Charles Varela on June 27, 2022, for an IME.  The \nreport provided that no patient/physician relationship was established.  The claimant was \nthen referred by Dr. Spann to Dr. Seale, a spinal surgeon at OrthoArkansas in Little Rock.  \nAn MRI scan was performed and the patient was noted to have evidence of possible small \nleft  disc  protrusion  at  L5-S1  without  compression  of  the  nerve  root.    Mild  foraminal \nstenosis  was  noted  in  the  remainder  of  the  spine.    There  was  no  mention  of  a  coccyx \nfracture on the MRI scan or on the evaluation by Dr. Seale.  He did however recommend \na possible foraminal microdiscectomy on the left L5-S1 in the future.  Under impression, \nthe report provided for a post probable S3 sacral fracture, acute, work-related, resolved \nand chronic mechanical low back pain with symptoms not justified by objective findings, \nnot  related  to  work  injury.    The  report  went  on  to  provide  that  the  claimant  should  be \nplaced on work restrictions due to her chronic low back pain, age, and general physical \ncondition,  and  that  she  could  return  to  work  with  a  twenty-five  (25)  pound  weight \nrestriction. (Cl. Ex. 1, P. 55-57) \nDisability papers were filled out by Dr. Spann’s office on July 19, 2022. (Cl. Ex. 1, \nP. 58-60)  The claimant then presented to Dr. Luke Knox on September 15, 2022.  His \nreport provided that the claimant had been seen in the neurosurgery clinic on the above \ndate and referred to both the MRI and CT scans.  Under plan, the report provided there \nwere no   further   medical   treatments   and/or   additional   diagnostic   tests   currently \n\nAPPLE – H101867 \n \n14 \n \nrecommended and/or necessary that was associated with the sacral fracture and/or lower \nback injury and complaints.  Additionally, Dr. Knox opined that he agreed with Dr. Varela \nthat the claimant had reached maximum medical improvement and he believed no other \ntreatment  options  were  available.    The  claimant  qualified  for  a  five  percent  (5%) \npermanent partial disability to the body as a whole. (Cl. Ex. 1, P. 61-73)  The claimant \nthen returned to Dr. Spann who issued another off-work note that provided the claimant \nwas unable to work a job with gainful employment due to her pain, leg weakness, and \ntendency to fall and opined that the claimant could only work two (2) to three (3) hours a \nday.  (Cl. Ex. 1, P.74) \nThe  respondents  also  submitted  medical  records  of  fifty-four  (54)  pages.  The \nrespondents  submitted  Walmart  Pharmacy  records  from  December  5,  2007,  through \nJanuary 23, 2022. The records provided the claimant was on various medications during \nthat time period which included various medications for pain to take as needed well before \nthe   work-related   incident   of   February   8,   2021.      The   claimant   was   prescribed \nHydrocodone, Ultram, and Darvocet combined with prescription Tylenol as far back as \n2008, along with various additional pain medications and muscle relaxers over the years \nprior to the work-related incident. (Resp. Ex. 1, P 1-22)  \n The respondents also provided claimant’s patient summaries from Dr. Spann for \nthe time period of July 26, 2016, through July 7, 2020.  The reports provided she suffered \nfrom a variety of health issues as far back as July 26, 2016, which included chronic pain, \ndegenerative disc disease, and pain in the right and left shoulder.  Osteoarthritis of the \nhip  and  arthritis  and  degenerative  arthritis  of  the  knee  were  also  diagnosed.    Besides \npain,  the  claimant  was  also  diagnosed  with  hypertension,  a  right  rotator  cuff tear,  and \n\nAPPLE – H101867 \n \n15 \n \nchronic severe right shoulder dysfunction. (Resp. Ex. 1, P. 23-28)  Dr. Spann’s chart notes \nfrom  June 9, 2020, through July 20, 2020, provided the claimant suffered from chronic \npain syndrome, hip osteoarthritis, palindromic rheumatisms, as well as hypertension, and \ncontrolled type 2 diabetes with diabetic polyneuropathy. (Resp. Ex. 1, P. 29-34) \n A chart note from Fletcher Chiropractic dated July 7, 2020, provided the claimant \npresented with low back pain on the left and that the claimant should respond well to care. \n(Resp. Ex. 1, P. 35) \n Additional chart notes from Dr. Spann dated September 21, 2020, and November \n4, 2020, provided the claimant was suffering from piriformis syndrome of the left side with \nleft  hip  pain,  plus  bilateral  knee  pain  on  the  November  visit  along  with  various  chronic \ndiseases. (Resp. Ex. 1, P. 36-42) \n The  respondents  also  submitted  the  IME  report  from  Dr.  Varela  and  additional \npages in regard to the Disability Physicians Statement and Claimant’s Accommodation \nrequest by Dr. Spann. (Resp. Ex. 1, P. 46-52)  Dr. Spann opined that the claimant was \nunable to twist or turn, shouldn’t lift over twenty (20) pounds, and should work less than \nfour  (4)  hours  a  day.    The  respondents  also  submitted  the  rating  report  from  Dr.  Luke \nKnox. (Resp. Ex. 1, P. 53)  The respondents also submitted six (6) pages of the Vocational \nRehabilitation  Preliminary  Report  dated  November  11,  2022,  which  provided  that  the \nreports from Washington Regional Neuroscience and Dr. Knox, along with reports from \nthe Ozark Orthopedic and Hand Surgery Center, the White River Orthopedic and Hand \nSurgery Center, the White River Health System Stone County Medical Center, and the \ndeposition of the claimant dated June 9, 2021, all had been reviewed and there were a \n\nAPPLE – H101867 \n \n16 \n \nvariety  of  jobs  available  that  the  claimant  could  perform  which  included  a  cashier, \nchecker, waitress, and kitchen helper among others.  (Resp. Ex. 2, P. 1-6)    \nDISCUSSION AND ADJUDICATION OF ISSUES \nIn the present matter, the parties stipulated the claimant sustained a compensable \ninjury in the form of a fractured sacrum, on February 8, 2021.  The claimant is therefore \nnot required to establish “objective medical findings” in order to prove that she is entitled \nto additional benefits. Chamber Door Indus., Inc. v Graham, 59 Ark. App. 224, 956 S.W.2d \n196 (1997). \nIn determining whether the claimant has sustained her required burden of proof, \nthe  Commission  shall  weigh  the  evidence  impartially,  without  giving  the  benefit  of  the \ndoubt to either party.  Ark. Code Ann. § 11-9-704;  Wade v. Mr. Cavananugh’s, 298 Ark. \n364, 768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence \non all issues before it into findings of fact. Weldon v. Pierce Brothers Construction Co., \n54 Ark. App. 344, 925 S.W.2d 179 (1996). \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe   Arkansas   Workers’   Compensation   Act   and   must   sustain   that   burden,   by   a \npreponderance of the evidence.  Dalton v. Allen Engineering Co., 66 Ark. App. 201, 635 \nS.W. 2d 823 (1982).  Preponderance of the evidence means the evidence having greater \nweight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark App. 263, \n101 S.W.3d 252 (2003).   \nIt is noted that a claimant’s testimony is never considered uncontroverted. Nix v. \nWilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  The determination of a \nwitness’s credibility and how much weight to accord the person’s testimony are solely up \n\nAPPLE – H101867 \n \n17 \n \nto  the  Commission. White  v.  Gregg  Agriculture  Ent.  72  Ark.  App.  309,  37  S.W.3d  549 \n(2001).  Additionally, the employer takes an employee as he finds him and employment \ncircumstances that aggravate pre-existing conditions are compensable.  Heritage Baptist \nTemple v. Robinson, 82 Ark. App. 460. 120 S.W.3d 150 (2003).   \nWhere  there  are  contradictions  in  the  evidence,  it  is  within  the  Commission’s \nprovince to reconcile conflicting evidence and to determine the true facts. Cedar Chem. \nCo. v. Knight, 99 Ark. App. 162, 258 S.W.3d 394 (2007).  The Commission has authority \nto accept or reject medical opinion and to determine its medical soundness and probative \nforce. Oak  Grove  Lumber  Co.  v.  Highfill,  62  Ark.  App.  42,  968  S.W.2d  637  (1998).  \nHowever,  the  Commission  may  not  arbitrarily  disregard  the  testimony  of  any  witness. \nPatchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). \nIt is noted that the claimant was allowed to testify as to contacting employers in the \narea  in  regard  to  the  list  of  jobs  available  as  listed  in  the  Vocational  Rehabilitation \nPreliminary   Report,   over   a   standing   objection   as   to   admissibility   made   by   the \nrespondents.  The law is clear that the Commission has broad discretion with reference \nto the admission of evidence, and its decision will not be reversed absent a showing of \nabuse  of  discretion.   Brown  v.  Alabama  Elec.  Co.,  60  Ark.  App.  138,  959  S.W.2d  753 \n(1998).    The  Commission  is  given  a  great  deal  of  latitude  in  evidentiary  matters,  as \nspecifically  spelled  out  in  Ark.  Code  Ann.  §11-9-705.    The  Commission  is  directed  to \n“conduct the hearing in a manner that will best ascertain the rights of the parties.”  Clark \nv. Peabody Testing Service, 265 Ark.489, 579 S.W. 2d. 360 (1979).  Hearsay is an out of \ncourt statement offered to the truth of the matter asserted.  In determining whether the \nstatement is hearsay, the first question that needs to be reviewed is who is the proponent \n\nAPPLE – H101867 \n \n18 \n \nof the statement and why are they offering it.  Are they offering it to prove that the contents \nare true or are they offering it for some other reason.   Here, the claimant’s statements \nwere not sufficient to necessarily show that no jobs were available in the area but were \nsufficient to show that she had at least looked for available work. \nIn  the  present  matter  there  are  no  future  treatment  or  procedures  proposed  in \nregard  to  the claimant’s  injury.  Dr.  Knox and  Dr.  Varela both  opined  the  claimant  had \nreached maximum medical improvement and Dr. Knox additionally opined on September \n15,  2022,  that  the  claimant  had  reached  maximum  medical  improvement  with  a  five \npercent  (5%)  partial  impairment  rating  to  the  body  as  a  whole  and  the  respondents \naccepted  this  rating.   Dr.  Varela  provided that  the  claimant  could  return  to work  with a \ntwenty-five (25) pound weight restriction and Dr. Spann provided for a twenty ( 20) pound \nweight  restriction.  The  Vocational  Rehabilitation  Report  provided that  appropriate  jobs \nwere available in the area.   \n In  regard  to  the  issue  of  permanent  and  total  disability  or,  in  the  alternative, \nwage-loss, permanent and total disability means inability, because of compensable injury \nor occupational disease, to earn any meaningful wages in the same or other employment.  \nArk. Code Ann. §11-9-519(e)(1).  The burden of proof shall be on the employee to prove \ninability to earn any meaningful wage in the same or other employment.  Ark. Code Ann. \n§11-9-519(e)(2).  Permanent benefits may be awarded only if the compensable injury was \nthe  major  cause  of  the  disability  or  impairment.   Ark.  Code  Ann.§ 11-9-102(4)(F)(ii)(a).  \nHere the only evidence produced at the hearing was that the claimant was unable to earn \nany  meaningful  wages  as  a  result  of  the  compensable  injury  was  the  testimony  of  the \nclaimant.  Dr. Spann opined that although the claimant could not twist or bend, she could \n\nAPPLE – H101867 \n \n19 \n \nin fact return to lifting up to twenty (20) pounds while Dr. Varela opined that the claimant \ncould return to work and was restricted to lifting up to twenty-five (25) pounds.  It is also \nnoted that no medical provider specifically indicated that the claimant was unable to work.  \nDr. Spann did limit her to two (2), three (3), or four (4) hours  of work depending on the \ndate  of  the  report,  Dr.  Seale  opined  that  the  symptoms  were  not  justified  by  objective \nfindings, Dr. Knox assigned no restrictions, and Dr. Varela felt that basically nothing was \nwrong with her per the claimant’s own testimony.  Based upon the available evidence, the \nclaimant has failed to prove, by a preponderance of the evidence, that she is unable to \nearn meaningful wages as the result of the compensable injury, and consequently has \nfailed  to  satisfy  the  required  burden  of  proof  for  permanent  and  total  disability.  See, \nGreenfield v. Conagra Foods, 210 Ark. App. 292 (2010) \n In regard to the issue of wage-loss, it is the extent to which a compensable injury \nhas  affected  the  claimant’s  ability  to  earn  a  livelihood.   Rutherford  v.  Mid-Delta  Cmty. \nServs., Inc. 102 Ark. App. 317, 285 S.W.3d 248 (2008).  The Commission is charged with \nassessing  wage-loss on  a  case-by-case  basis.    Factors  to  be  considered  in  accessing \nwage-loss include the employee’s age, education, post-injury income, work experience, \nmedical  evidence,  and  other  matters  which  may  reasonably be  expected  to  affect  the \nworkers’ future earning power such as motivation, post injury income, bona fide job offers, \ncredibility or voluntary termination.  Glass v. Edens, 232 Ark. 786, 346 S.W.2d 685 (1961);  \nOller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 S.W. 276 (1982); Hope School \nDistrict v. Charles Watson, 2011 Ark App 219, 382 S.W. 3d 782 (2011).  The  Award of \nwage-loss  is  not  a  mathematical  formula  but  a  judicial  determination  based  on  the \nCommission’s knowledge of industrial demands, limitations, and requirements. Henson \n\nAPPLE – H101867 \n \n20 \n \nv. General Electric, 99 Ark. App. 129, 257 S.W. 3d 908 (2008).  Pursuant to Ark. Code \nAnn. § 11-9-522(b)(1), when a claimant has an impairment rating to the body as a whole, \nlike in the current matter, the Commission has the authority to increase the disability rating \nbased  upon  wage-loss  factors.    The  wage-loss  factor  is  the  extent  to  which  a \ncompensable  injury  has  affected  the  claimant’s  ability  to  earn  a  livelihood.   Emerson \nElectric v. Gaston, 75 Ark. App. 232, 58 S.W. 3d 848 (2001).  Objective and measurable \nphysical findings which are necessary to support a determination of “physical impairment” \nor  anatomical  disability  are  not  necessary  to  support  a  determination  of  wage-loss.  \nArkansas Methodist v. Adams, 43 Ark. App. 1, 858 S.W. 2d (1993)     \n Here,  it  is  clear  the  claimant  suffered  from  a  variety  of  pre-existing  matters  and \nchronic  health  issues,  such  as  fibromyalgia,  osteoarthritis,  chronic  pain,  previous  back \nsurgeries,  kidney  issues,  hypertension,  and  diabetes.    Evidence  provided  the  claimant \nwas born October 6, 1954, and was sixty-eight (68) years old at the time of the hearing.  \nShe previously had worked at a shirt factory as a line worker sewing, ran a grocery store \nwhere she ran the cash register, ordered product, stocked, and additionally had worked \nas a cook, waitress, and as a care-taker for the elderly or impaired.  Some of these jobs \nlisted in the area could be performed by a person who is limited to lifting twenty  (20) to \ntwenty-five (25) pounds.  To be entitled to any wage-loss disability benefit in excess of \npermanent physical impairment, a claimant must first prove, by a preponderance of the \nevidence,  that  he  or  she  sustained  permanent,  physical  impairment  as  a  result  of  a \ncompensable  injury.   Wal-Mart  Stores,  Inc.  v.  Connell,  340  Ark.  475,  10  S.W.3d  882 \n(2000)   In the present matter, Payton Ransome P.A. on September 21, 2021, opined that \nthe claimant’s MRI did reveal a disc protrusion that is an objective finding of injury that \n\nAPPLE – H101867 \n \n21 \n \nmatched the patient’s subjective complaints and symptoms.  The claimant’s symptoms \nbegan on and after the work duty.  Therefore, it was within a degree of medical certainty \nthat at least fifty-one percent (51%) of the claimant’s current symptoms are directly related \nto her work injury.  Based upon a review of all the above, it is determined that the claimant \nis entitled to a five percent (5%) wage-loss determination. \n After reviewing and weighing the evidence impartially, without giving the benefit of \nthe doubt to either party, the claimant has failed to satisfy the required burden of proof \nthat she is entitled to permanent total disability, but, in the alternative, has satisfied the \nrequired burden of proof that she is entitled to wage-loss in the amount of  five percent \n(5%). \n The claimant and her attorney are entitled to the appropriate legal fees as spelled \nout in Ark. Code Ann. § 11-9-715. \n This  Award  shall  bear  interest  at  the  legal  rate  pursuant  to  Ark.  Code  Ann. \n§11-9-809.    If  not  already  paid,  the  respondents  are  ordered  to  pay  the  cost  of  the \ntranscript forthwith. \nIT IS SO ORDERED. \n \n \n      _____________________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":41321,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H101867 THURN K. APPLE, EMPLOYEE CLAIMANT v. WHITE RIVER AREA AGENCY ON AGING, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED MAY 2, 2023 Hearing before Administrative Law Judge, James D. Kennedy, on March 15, 2023, in M...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["back","neck","knee","hip","cervical","shoulder","fracture","lumbar"],"fetchedAt":"2026-05-19T23:07:05.385Z"},{"id":"alj-G801538-2023-05-02","awccNumber":"G801538","decisionDate":"2023-05-02","decisionYear":2023,"opinionType":"alj","claimantName":"Jarod Medart","employerName":"University Of Arkansas Fayetteville","title":"MEDART VS. UNIVERSITY OF ARKANSAS FAYETTEVILLE AWCC# G801538 MAY 2, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MEDART_JAROD_G801538_20230502.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MEDART_JAROD_G801538_20230502.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G801538 \n \nJAROD MEDART, Employee CLAIMANT \n \nUNIVERSITY OF ARKANSAS FAYETTEVILLE, Employer RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT \n \n \n \n OPINION FILED MAY 2, 2023 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by AARON L. MARTIN, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents  represented  by  CHARLES H.  MCLEMORE,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n STATEMENT OF THE CASE \n \n On  February  7,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.      A  pre-hearing  conference  was  conducted  on  December  5,  2022,  and  a  Pre-hearing \nOrder  was  filed  on  December  6,  2022.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2.   The relationship of employee-employer-carrier existed between the parties on April 4, \n2016. \n 3.   The claimant sustained a compensable injury to his low back on April 4, 2016. \n\nMedart – G801538 \n \n-2- \n 4.  The  claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $551.00 for temporary total disability benefits and $413.00 for permanent partial \ndisability benefits. \n 5. All prior opinions are final and res judicata. \n By agreement of the parties the issues to litigate are limited to the following: \n1.  Whether  Claimant  is  entitled  to  additional  medical  treatment  in  the  form  of  a  trial \nspinal cord stimulator as recommended by Dr. Jared Ennis for his compensable low back injury. \n Claimant’s contentions are: \n“The  Claimant  contends  that  the  recommended  trial  spinal  cord \nstimulator for his lower back is reasonable and necessary.” \n \n Respondents’ contentions are: \n \n“A  hearing  was  held  in  this  matter  on  February  19,  2019,  and  on \nApril 23, 2019. The issue to litigate at that time was the claimant’s \ndemands   for   additional   medical   treatment,   which   became   a \ndemand  for  a  surgery  performed  by  Dr.  Brandon  Evans  at  L5-S1 \non  February  21,  2019.  The  hearings  resulting  in an  opinion  of  the \nAdministrative   Law   Judge   dated   July   22,   2019,   which   was \naffirmed  and  adopted  by  the  Full  Commission  on  January  14, \n2020,    awarding    the    claimant    additional    medical    treatment \nincluding the surgery by Dr. Evans, and this opinion is now the law \nof  the  case  and  res  judicata.  The  Respondents  have  paid  the \nawarded  benefits,  including  providing  medical  treatment  for  the \nclaimant  reasonable  and  necessary  for  and  causally  related  to  the \ncompensable injury. \n \nThe  claimant  continued  to  complain  of  symptoms  after  his  fusion \nsurgery  and  has  been  provided  additional  medical  treatment  by \nRespondent.  The  claimant  was  provided  another  surgery  by  Dr. \nEvans on May 6, 2021, to remove hardware. The claimant has been \nprovided  ongoing  pain  management  and  injections.  Respondent \ndoes not pay for the claimant’s cannabis. \n \nThe  claimant  now  demands  that  he  be  provided  a  spinal  cord \nstimulator,  which  Respondent  has  not  authorized.  The  claimant \nwas seen by Dr. Carlos Roman who did not recommend the spinal \n\nMedart – G801538 \n \n-3- \ncord  stimulator  for  the claimant  but  did  recommend  medications \nwhich   Respondent   has   continued   to   provide   this   claimant. \nRespondent  contends  that  the  spinal  cord  stimulator  the  claimant \ndemands is not reasonable and necessary medical treatment for the \nclaimant’s injury. \n \nThe  Respondents  reserve  the  right  to  raise  additional  contentions, \nor  to  modify  those  stated  herein,   pending  the  completion  of \ndiscovery.” \n \n \n The claimant in this matter is a 36-year-old male who sustained a compensable injury to \nhis low back on April 4, 2016. The claimant has asked the Commission to consider whether he is \nentitled  to  additional  medical  treatment  in  the  form  of  a  trial  spinal  cord  stimulator  as \nrecommended  by  Dr.  Jared  Ennis  for  his  compensable  low  back  injury.  The  claimant  has \nundergone  two  lower  back  surgeries  due  to  his  compensable  low  back  injury.  The  first  surgery \nwas  done  in  February  of  2019,  which  primarily  involved  a  fusion  of  L5-S1.  It  should  be  noted \nthat Dr. D. Luke Knox was, and still is, the claimant’s treating neurosurgeon; however, Dr. Knox \nstopped  performing  surgery  prior  to  the  claimant’s  February  2019  surgery.  Dr.  Brandon  Evans \nactually performed the claimant’s surgical intervention. The claimant continued to treat with Dr. \nKnox  after  his  surgical  intervention.  That  surgical  intervention  is  well  documented  in  the \nprevious hearing transcripts which has been made part of the record in this matter. \n The  claimant  was  asked  about  his  February  of  2019  surgery  and  its  outcome  on  direct \nexamination as follows: \nQ Okay. Mr. Medart, we are here today to address  additional \nmedical treatment in your case, specifically a trial for a spinal cord \nstimulator.  We  submitted  a  lot  of  medical  records  so  I  want  to  go \nback, and  I don’t want to detail everything, but  you had a surgery \nin February of 2019. Do you recall that procedure? \n \nA I do. \n \n\nMedart – G801538 \n \n-4- \nQ Did you get any benefit from that procedure? \n \nA I did. \n \nQ  Tell me about that. \n \nA We had the surgery to fuse my L5-S1 and the benefit that I \ngot  from  that,  my  back  would  no  longer  go  out  so  that  I couldn’t \nwalk   for   several   days.   But   then   approximately   three   months \nafterwards,  the  majority  of  the  benefit  had  worn  off  and  I  started \nhaving symptoms going down the back of my legs. \n \n Following  the  claimant’s  first  surgical  intervention,  the  claimant  began  physical  therapy \nat   Total   Spine.   The   claimant   continued   with   complaints   of   low   back   pain   and   lumbar \nradiculopathy.  The  claimant  began  treatment  at  Interventional  Pain  Specialists  with  both  Dr. \nJarod  Ennis  and  Dr.  Jason  Holt.  This  treatment  included  lumbar  spine  injections  to  treat  the \nclaimant’s  continued  low  back  symptoms.  In  December  of  2019  the  claimant  again  attended \nphysical  therapy  for  his  low  back  symptoms.  The  claimant’s  difficulties  continued  into  early \n2020 even  after  physical  therapy  and  receiving  additional  epidural  steroid injections  located  in \ndifferent areas of his lower lumbar spine. \n An  MRI  of  the  claimant’s  lower  back  was  ordered  by  Dr.  Knox.  After  that  MRI  was \nperformed,  the  claimant  was  seen  by  Dr.  Knox  on  August  20,  2020.  Following  is  a  portion  of \nthat medical record: \nAugust 20, 2020 reviewed patient’s MRI scan. Appears to show a \nnice  decompression  at  the  fusion  site.  Would  not  recommend  any \nother  surgical  endeavors  at  this  time  will  plan  to  follow  up  in  6 \nmonths.  We  discussed  possibility  of  hardware  removal  at  2  years \npostop which would take him to February 2021 will plan follow-up \nin 6 months. Will send prescription for orthopedic bed issues/refer \nto  note  May  19,  2020  patient  now  15  months  status  post  lumbar \nfusion  now  with  complaints  of  cauda  equina  syndrome  would \nrecommend that he get MRI scan return to clinic reviewed his MRI \nscan    back    and    September    demonstrating    no    evidence    of \ncompressive  pathology  will  plan  to  follow  up  after  the  MRI  scan \n\nMedart – G801538 \n \n-5- \nDecember   2,   2019.   Patient   improving   with   shoe   inserts   and \nmedications. He failed epidurals. Informed him that the next step is \nto  consider  for  RF  lesion  will  plan  to  follow  up  in  6  months  and \nredo x-rays at that time. \n \n The  claimant  then  continued  treating  with  Dr.  Ennis  and  Dr.  Holt.  On  September  11, \n2020, Dr. Holt first indicated that the claimant “may consider SCS trial in the future.” This is the \nfirst  time  in  the  medical  record  that  a  spinal  cord  stimulator  trial  appears  to  be  considered.  On \nMay 6, 2021, the claimant goes forward with hardware removal again at the hands of Dr. Evans, \nbut  the  claimant  remains  under  the  care  and  treatment  of  Dr.  Knox  who  no  longer  performs \nsurgery. The claimant was asked on direct examination about the effects of his second surgery in \nthe form of hardware removal as follows: \nQ Okay.  And  the  records  show  you  had  a  surgery  again  on \nMay  6\nth\n  of ’21  to  remove  that  hardware.  Did  you  get  any  benefit \nfrom that procedure? \n \nA Short-lived.  It  was  about  three  months  again  that  I  got \nbenefit from that before the pain started coming back. \n \n On July 22, 2021, the claimant was again seen by Dr. Ennis regarding his continued low \nback   difficulties.   Following   is   a   portion   of   that   medical   record   in   which   it   discusses \nrecommended steps prior to considering a spinal cord stimulator trial: \nDiagnosis: \n*** \nPleasant  gentleman  presents  for  evaluation  and  treatment  of  his \nworsening   lower   back   pain.   H/o   pain   since   2016   which   has \ncontinued  to  worsen.  Severe  exacerbation  of  pain  d/t  a  lifting \ninjury  while  at  work  in  April  2016.  He  has  completed  x2  series \nw/Yumang  Rehab  and  injections.  Ultimately  underwent  L5  S1 \nfusion w/Dr. Evans in February 2019. Successful surgery and pain \nfree for several months; but reports residual/worsening symptoms. \nMRI   L/S   (July   2020)   showing   dorsal   fusion   of   S1   and   L5 \nvertebrae. L5/S1 level mild degenerative endplate change. Minimal \nbilateral neural foraminal stenosis. \n \n\nMedart – G801538 \n \n-6- \nPt  presents  today  for  follow  up.  Underwent  hardware  removal \nw/Dr.  Evans  on  05/06/21.  Experienced  1  week  of  relief  following \nsurgery,  unfortunately  since  then  radiating  pain  has  returned.  On \nexam,  describing  a  B/L  S1  pain  pattern.  He  did  visit  w/Dr.  Knox \nand discussed SCS; per patient Dr. Knox recommended re-trialing \ninjection  prior  to  consider  SCS.  I  agree.  Added  Lyrica  50mg  BID \nwhich   has   offered   some   improvement.   Otherwise   continues \nw/HCD and baclofen to  QID to offer 20mg dosing once daily. As \nwell  as  Lyrica  75mg  BID.  Otherwise,  will  obtain  approval  for \nbilateral S1 LTF. \n \nThe claimant continued with injections as recommended by Dr. Ennis and Dr. Knox.  \n On October 21, 2021, the claimant was seen by Dr. Ennis. Following is a portion of that \nmedical report: \nHistory of Present Illness: \nPainful area(s): back, buttock, thighs \nProgress in treatment: return to baseline \nPain  description:  low   back  w/<  radiation  to  b/l  gluteals  and \nposterior thighs \nRecent intervention: bilateral S1 LTF \nResults of treatment: inadequate relief \nAmount of relief: no relief \nAverage activity level since last visit: unchanged \n \nJarod  returns  today  for  further  evaluation.  No  benefit  from  repeat \nbilateral   S1   LTF.   His   symptoms   have   returned   to   baseline. \nContinues  to  struggle  w/lower  back,  b/l  glute  and  posterior  thigh \npain.  He  did  visit  w/Dr.  Knox  who  also  agreed  w/completion  of \nseries and consider SCS if lackluster. No medication changes. \n \n*** \nDiagnosis: \nM96.1 – POSTLAMINECTOMY SYNDROME, NOT \nELSEWHERE CLASSIFIED \nM51.16 –     INTERVERTEBRAL     DISC     DISORDERS     W \nRADICULOPATHY, LUMBA \nM48.062 –   SPINAL   STENOSIS,   LUMBAR   REGION   WITH \nNEUROGENIC CLAUD \n \nPleasant  gentleman  presents  for  evaluation  and  treatment  of  his \nworsening   lower   back   pain.   H/o   pain   since   2016   which   has \ncontinued  to  worsen.  Severe  exacerbation  of  pain  d/t  a  lifting \n\nMedart – G801538 \n \n-7- \ninjury  while  at  work  in  April  2016.  He  has  completed  x2  series \nw/Yumang  Rehab  and  injections.  Ultimately  underwent  L5  S1 \nfusion w/Dr. Evans in February 2019. Successful surgery and pain \nfree  for  several  months;  but  report  residual/worsening  symptoms. \nMRI   L/S   (July   2020)   showing   dorsal   fusion   of   S1   and   L5 \nvertebrae. L5/S1 level mild degenerative endplate change. Minimal \nbilateral  neural  foraminal  stenosis.  Underwent  hardware  removal \nw/Dr.  Evans  on  05/06/21.  Experienced  1  week  of  relief  following \nsurgery, unfortunately since then radiating pain has returned. \n \nReturns today for cont’d evaluation. Unfortunately no benefit from \nrepeat  b/l  S1  LTF.  Pain  has  returned  to  baseline.  Continues  to \nstruggle  w/back  and  b/l  glute  and  posterior  leg  pain  to  the  knees. \nDescribing  a  S1  pattern.  He  did  visit  w/Dr.  Knox;  per  patient \nagreed to finish out series was appropriate. As well as SCS if series \nlackluster.  Would  like  to  obtain  new  MRI  prior  to  this  step.  He \nremains  on  HCD,  baclofen,  and  Lyrica.  Completing  HEP/walking \nat local park for exercise. Discussed his cont’d pain/symptoms, and \nwould  like  to  change  approach  to  caudal.  Will  plan  to  evaluate \nfollowing.   If   no   benefit,   will   proceed   w/new   MRI   and   if \nappropriate and Dr. Knox agrees; will move to SCS trial. \n \nThe   claimant   underwent   the   recommended   caudal   approach   to injections;   however,   his \nsymptoms continued. Following is a portion of a medical record dated December 8, 2021, from \nInterventional Pain Specialists: \nJarod    returns    today    to    evaluate    progress    following    series \ncompletion.  Change  to  caudal   approach  proved  one   week  of \nbenefit.  He  continues  to  struggle  greatly  w/lower  back,  bilateral \nbuttock and posterior leg pain. Medications remain the same. He is \nscheduled to see Dr. Knox next week. \n \n On December 14, 2021, the claimant is again seen by Dr. Knox. Following is a portion of \nthat medical record: \nHPI:  Mr.  Jarod  Medart  was  seen  in  the  Northwest  Arkansas \nNeurosurgery  Clinic,  along  with  his  wife,  on  12/14/21  for  follow-\nup. As you know, he continues to be plagued with significant back \nand  bilateral  leg  pain.  It  originally  started  out  as  right  leg  pain. \nInterestingly, he says that when he got his Covid booster, it really \nflared up his sciatica. \n \n\nMedart – G801538 \n \n-8- \nPLAN:  From  my  standpoint,  he  wants  to  consider  spinal  cord \nstimulator. I believe he is probably an excellent candidate for this. \nTo  that  end,  we  need  to  redo  his  lumbar  MRI  scan  with/without \ncontrast after which we will reevaluate and consider the possibility \nof a spinal cord stimulator. \n \n On February 7, 2022, the claimant is  again seen  by Dr. Knox. Following  is a portion of \nthe Plan section of that medical record: \nFebruary  7,  2022.  Patient  seen  virtual  office  visit.  Reviewed  his \nMRI  scan.  The  fusion  appears  solid.  He  continues  to  be  plagued \nwith  back  and  bilateral  sciatica.  His  primary  complaint  is  the \nbilateral  sciatica.  In  view  of  that  I  would  recommend  that  he \nconsider  spinal  cord  stimulator.  He  is  to  follow-up  with  pain \nmanagement  consideration  of  dorsal  column  stimulator.  Will  plan \nto    follow-up    p.r.n.    We    discussed    possibility    of    medical \nmarijuana/cannabis  card.  He  is  contact  us  of  he  wants  to  pursue \nthis avenue. \n \n On  May  10,  2022,  the  claimant  was  seen  for  a  second  opinion  at  the  request  of  the \nrespondents  by  Dr.  Carlos  Ramon  at  Proper  Pain  Solutions.  Following  is  a  portion  of  Dr. \nRamon’s report: \nHISTORY OF PRESENT ILLNESS: \nThe   patient   is   a   35-year-old   gentleman   who   worked   for   the \nUniversity of Arkansas in the IT Department. In April of 2016, he \nwas lifting a projector and felt severe pain in his back. He was seen \ninitially  by  Dr.  Hudu.  They  did  some  x-rays  of  the  lumbar  spine \nand looked normal. He had some transitional anatomy at the L5-S1 \nlevel.  He  had  physical  therapy.  They  did  and  MRI  of  his  lumbar \nspine, initially in June 2016, which showed a small annular tear at \nthe L4-L5 level, mild facet disease, mild-to-minimal stenosis at the \nL5-S1  level.  He  saw  Dr.  Nalley,  at  Ozark  Orthopedics,  who  put \nhim  back  at  light  duty,  did  not  think  surgery  would  be  of  benefit. \nThe  patient  returned  to  work,  continued  to  struggle  with  his  back \npain.  He  subsequently  went  back  in  2018,  saw  Dr.  Knox,  got  an \nupdated  MRI.  There  was  a  moderate  central  disc  bulge  at  the  L5-\nS1,   again   with   only   mild   stenosis.   They   referred   to   pain \nmanagement. He had epidural injections, bilateral transforaminal at \nL5-s1,  without  relief.  A  third  MRI  was  done  in  January  2019 \nshowing  mild  bilateral  foraminal  stenosis  and  a  disc  bulge  at  the \nL5-S1. No changes on x-ray. He then had a lumbar fusion surgery \n\nMedart – G801538 \n \n-9- \nin  February  2019  by  Dr.  Evans.  He  indicated  it  was  for  low  back \npain  secondary  to  dicogenic  pain.  They  did  an  interbody  fusion. \nDr.  Knox  followed  him  up  after  surgery.  The  patient  continued  to \ncomplain of low back pain, pain down his right leg worse than the \nleft. They did a follow-up MRI and the lumbar fusion at L5-S1 was \nnormal.  He  continued  to  complain  of  pain.  He  had  discussed \npossible  spinal  cord  stimulator  and  ultimately  did  another  CT  in \nMarch of 2021, and they removed the hardware. He had hardware \nremoval  of  the  fusion  at  the  L5-S1.  Since  the  removal,  he  is  still \nhaving  ongoing  pain  symptoms,  particularly  complaining  of  pain \ndown the legs and low back. The patient has said that the surgeries \noverall  helped  his  severe  pain,  but  he  still  deals  with  chronic \nongoing  refractor  pain.  He  has  been  on  a  host  of  long-term \nmedications,  but  he  does  have  hydrocodone  moderately,  7.5  mg \ntables  as-needed,  dispense  #60  per  month.  He  was  on  gabapentin, \nwhich  did  not  show  good  relief  as  far  as  his  leg  pain,  but  also \ncaused a lot of sedation; so they put him on Lyrica 75 mg tablets, \ndispense  #60,  which  he  tolerates  fairly  well.  He  is  on  baclofen  10 \nmg  tablets  four  times  a  day.  Those  are  his  medications  as  far  as \npain  management  is  concerned.  They  have  also  proposed  a  spinal \ncord stimulator. We had an extensive consultation about treatment \noptions, and pros and cons of spinal cord stimulation. His last MRI \nof   the   lumbar   spine,   the   canal   is   open,   there   is   no   severe \ngranulation  tissue  encapsulating  a  nerve  root,  he  has  no  stenosis \nabove  or  below.  He  is  complaining  of  pain  down  both  legs,  but \nthere  is  no  objective  rationale  for  him  to  have  ongoing  radicular \npain down his legs.  I cannot recommend spinal  cord stimulator.  It \nwill  not  change  his  outcome.  There  is  not  an  objective  rationale \nthat is causing his ongoing leg pain. He says the leg pain is worse \nthan  the  back  pain.  He  gets  occasional  short  term  relief  from \nepidural injections.  I think the risk-to-benefit on a stimulator does \nnot favor the patient and, again, I do not see an objective rationale \nfor placement. The reason for spinal cord stimulator for failed back \nwould be ongoing stenosis not amenable to surgery or granulation \ntissue  developed  on  nerve  root  causing  chronic  severe  unilateral \nnerve  pain  or  impingement.  Global  pain  in  the  back,  and  down \nboth  hips  and  legs  is  not  going  to  be  an  indication.  He  has  had \nprevious surgeries without enough relief. \n \nThough the patient says he has got relief, he still does not know if \nhe can  continue working given the amount of ongoing pain. He is \nof young age at 35 years of age. We had a very extensive consult. I \ndo  not  recommend  spinal  cord  stimulator  for  the  patient.  I  think \nthere should be adjustment of medications. I think his opiate use is \n\nMedart – G801538 \n \n-10- \nappropriate.  Occasional  injections  have  been  of  benefit.  He  does \nnot need further surgeries, either. \n \n*** \nCURRENT MEDICATIONS: \nHe   is   on   omeprazole,   baclofen,   sertraline,   Norco,   lostatan, \nhydrochlorothiazide, metoprolol, Lyrica, and aspirin. \n \nPHYSICAL EXAM: \nAn    alert    and    oriented,    well-developed    and    well-nourished \ngentleman.  Height  5  feet  11  inches,  weight  265  pounds.  O2  sat  is \n97%,  heart  rate  is  80,  and  respiratory  rate  is  10.  Cranial  nerves  II \nthrough  XII  are  grossly  intact.  Ambulates,  he  does  have  a  cane \nwith  him  and  says  uses  it  on  occasion.  Lumbar  spine  has  a  well-\nhealed,  three-inch  incision.  He  is  not  over  point  tender  over  the \nguteal  bursa.  He  complains  of  pain  in  his  buttocks  and  down  the \nback of his legs. Muscle tone is appropriate and symmetric for his \nage  and  condition.  No  global  weakness.  Peripheral  pulses  are \npalpable.  No  gross  muscle  atrophy  of  asymmetry  in  the  lower \nextremities.  Range  of  motion  of  the  hips,  knees,  and  ankles  is \nappropriate. No weakness or footdrop of any kind. \n \nFINAL ASSESSMENT: \n1. Chronic, ongoing low back pain. \n2. Lumbar fusion, L5-S1 level. \n3. Current long-term use of medications. \n \n*** \nFINAL DIAGNOSIS: \n1. Low back pain. \n2. Lumbar fusion, L5-S1. \n3. Long-term opiate use. \n \n On September 20, 2022, Dr. Ennis authored a letter regarding the claimant and Dr. Ennis’ \nbelief in the claimant’s need to undergo a spinal cord stimulator trial as follows: \nOur clinic has treated Mr. Medart since 2018. He has not received \nmeaningful  benefit  from  injections,  medications,  physical  therapy \nand  surgery  including  fusion  in  2019  and  hardware  removal  in \n2021.  He  has  continued  to  be  plagued  with  bilateral  posterior  leg \npain.  MRI  obtained  in  March  2022.  Evaluated  by  Dr.  Knox  who \nalso  agreed  and  recommended  moving  forward  with  spinal  cord \nstimulator trial. He is 36 years old and would prefer to avoid high \ndoses  of  medications,  since  he  is  likely  to  continue  with  opiate \n\nMedart – G801538 \n \n-11- \nmedications  chronically.  Unfortunately,  his  alternatives  would  be \nfurther   surgical   treatment   or   long-term   use   of   interventional \nsteroids. \n \n The  only  issue  before  the  Commission  is  the  claimant’s  request  for  additional  medical \ntreatment in the form of a spinal cord stimulator trial. As such, it must be determined if a spinal \ncord  stimulator  trial  is  reasonable,  necessary  medical  treatment  for  the  claimant’s  compensable \nApril  4,  2016,  low  back  injury.  The  claimant  has  undergone  two  surgeries  which  include  one \nfusion  at  L5-S1  and  the  later  hardware  removal  surgery.  The  claimant  has  prior  to,  and  post-\nsurgery,  undergone  extensive  conservative  treatment,  including  physical  therapy,  medication, \nand injections. The claimant still struggles with low back pain and lumbar radiculopathy from his \ncompensable low back injury, even after both surgical and conservative care.  \n Dr.  Ramon’s  second  opinion  is  clear  that  he  believes  the  claimant  should  continue \ntreatment but not through a spinal cord stimulator trial. However, I believe that Dr. Ennis and Dr. \nKnox are in the best position to determine the treatment path for the claimant as they have both \nlong  participated  in  his  care,  having  had  the  opportunity  to  see  the  claimant  on  occasions  both \nprior to and after surgical intervention and participate in the conservative treatment that has been \ngiven  throughout  the  claimant’s  time  since  his  compensable  injury.  I  find  that  the  spinal  cord \nstimulator  trial  recommended  by  both  Dr.  Knox  and  Dr.  Ennis  to  be  reasonable,  necessary \nmedical treatment for the claimant’s April 4, 2016, compensable low back injury. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n \n\nMedart – G801538 \n \n-12- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nDecember  5,  2022,  and  contained  in  a  Pre-hearing  Order  filed December  6,  2022,  are  hereby \naccepted as fact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is  entitled  to \nadditional  medical  treatment  in  the  form  of  a  trial  spinal  cord stimulator  as  recommended  by \nboth   Dr.   Knox   and   Dr.   Ennis   as   it   is   reasonable,   necessary   medical   treatment   for   his \ncompensable low back injury. \n ORDER \n The  respondents  shall  be  responsible  for  the  costs  associated  with  the  claimant’s \nreasonable, necessary spinal cord stimulator trial. \nPursuant  to  A.C.A.  §11-9-715(a)(1)(B)(ii),  attorney  fees  are  awarded  “only  on  the \namount of compensation for indemnity benefits controverted and awarded.”   Here, no indemnity \nbenefits were controverted and awarded; therefore, no attorney fee has been awarded.   Instead, \nclaimant’s attorney is free to voluntarily contract with the medical providers pursuant to A.C.A. \n§11-9-715(a)(4). \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n \n IT IS SO ORDERED. \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":26345,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G801538 JAROD MEDART, Employee CLAIMANT UNIVERSITY OF ARKANSAS FAYETTEVILLE, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED MAY 2, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington Co...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T23:07:07.451Z"},{"id":"alj-H107584-2023-05-02","awccNumber":"H107584","decisionDate":"2023-05-02","decisionYear":2023,"opinionType":"alj","claimantName":"Thomas Qualls","employerName":"Future Fuel Chemical Company","title":"QUALLS VS. FUTURE FUEL CHEMICAL COMPANY AWCC# H107584 MAY 2, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/QUALLS_THOMAS_H107584_20230502.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"QUALLS_THOMAS_H107584_20230502.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H107584 \n \nTHOMAS L. QUALLS, EMPLOYEE      CLAIMANT \n \nFUTURE FUEL CHEMICAL COMPANY, EMPLOYER       RESPONDENT \n             \nEMPLOYERS INSURANCE COMPANY  \nOF WAUSAU, CARRIER/TPA            RESPONDENT \n \nOPINION FILED MAY 2, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy on April 26, 2023, in \nBatesville, Independence County, Arkansas. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Mr. David C. Jones, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  April  26,  2023,  in  Batesville, \nArkansas, on  respondent’s  Motion  to  Dismiss  for failure  to  prosecute  pursuant  to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant was pro se and failed to appear for the hearing.  The \nclaimant  filed  an  AR-C  on  September  16,  2021.    On  September  21,  2021, the \nrespondent/carrier filed an AR-2 providing that the claim was accepted as medical only.  \nClaimant was granted a change of physician by the Commission on October 27, 2021, \nbut  then,  on  November  9,  2021,  Mark  McGuire,  Assistant  CEO  of  the  Commission, \nentered  an  Order  setting  aside  the  Change  of  Physician  Order,  after  the  claimant \nindicated he did not want to proceed with it.  The claimant continued to receive medical \ntreatment and on June 8, 2022, Dr. Erik Gordon provided that the claimant had reached \nmaximum medical improvement with a zero percent (0%) impairment rating.  A Motion to \n\nQUALLS – H107584 \n \n2 \n \nDismiss  was  filed  by  the  respondents  with the  Arkansas  Workers’  Compensation \nCommission on or about February 21, 2023.  The claimant failed to file a response to the \nMotion.  \nAn appropriate notice for the hearing on the Motion to Dismiss was provided.  The \nclaimant failed to appear on the hearing date.  At the time of the hearing, David C. Jones \nappeared  on  behalf  of  the  respondents  and  checked  the  hall  at  the  request  of  the \nCommission to confirm that the claimant was not present and then asked that the matter \nbe dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondents,  it  is  found  that  this  matter  should  be  dismissed  for  failure  to  prosecute \npursuant  to  Ark.  Code  Ann.  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act. \nORDER \n Pursuant  to  the  above  statement  of  the  case,  this  matter  should  be  dismissed \nwithout prejudice. \nIT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2897,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H107584 THOMAS L. QUALLS, EMPLOYEE CLAIMANT FUTURE FUEL CHEMICAL COMPANY, EMPLOYER RESPONDENT EMPLOYERS INSURANCE COMPANY OF WAUSAU, CARRIER/TPA RESPONDENT OPINION FILED MAY 2, 2023 Hearing before Administrative Law Judge James D. Kennedy on April 26, 2023,...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:07:09.531Z"},{"id":"alj-H102436-2023-05-01","awccNumber":"H102436","decisionDate":"2023-05-01","decisionYear":2023,"opinionType":"alj","claimantName":"Valerie White","employerName":"Desha County","title":"WHITE VS. DESHA COUNTY AWCC# H102436 MAY 1, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WHITE_VALERIE_H102436_20230501.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WHITE_VALERIE_H102436_20230501.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H102436 \n \nVALERIE F. WHITE, EMPLOYEE       CLAIMANT \n \nDESHA COUNTY. EMPLOYER                  RESPONDENT  \n \nAAC, AAC RMS CARRIER/TPA                       RESPONDENTS \n \nOPINION FILED MAY 1, 2023 \n \nHearing before Administrative Law Judge JayO. Howe in McGehee, Desha County, \nArkansas, on April 27, 2023. \n \nMr. Mark Alan Peoples of Little Rock, Arkansas,  waived his appearance on behalf \nof the claimant. \n \nMr.  Jason  M.  Ryburn  of  Little  Rock,  Arkansas,  appeared  on  behalf  of  the \nrespondents. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  April  27, 2023,  in  McGehee, \nArkansas,  on  the  respondents’  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas Code Ann. § 11-9-702 and/or Rule 099.13 of the Arkansas Workers’ Compensation \nAct.    The  claim  involves  an  alleged  workplace  injury  occurring  on  or  about  November 27, \n2020. An employer/employee relationship existed at the time, and the respondents accepted \nand paid benefits on a right shoulder injury. A Form C was filed on January 26, 2022. \n The respondents filed this Motion to Dismiss on March 10, 2023. The motion stated \nthat the claimant was released from care for the shoulder injury on April 18, 2022, without \nrestrictions or an impairment rating. It further stated that no request for hearing or other \neffort to prosecute the claim was made in the six (6) months preceding the Motion’s filing.  By \nway  of  email  communication  with  the  Commission  and  the  respondents’  counsel,  dated  \nMarch  14,  2023,  Mr.  Peoples  informed  that  his  client  did  not  oppose  a  dismissal  without \nprejudice. \n\nWhite- H102436 \n2 \n \n \n Based on the record, statements of counsel, and the available evidence, I find that the \nMotion  to  Dismiss  should  be  granted  for the  claimant’s  lack  of  prosecution and  that  the \nmatter should be dismissed without prejudice.  \nORDER \n \n Pursuant  to  the  above,  the  Motion  to  Dismiss  should  be  granted  and  this  matter \nshould be dismissed without prejudice at this time.   \nSO ORDERED. \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2262,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H102436 VALERIE F. WHITE, EMPLOYEE CLAIMANT DESHA COUNTY. EMPLOYER RESPONDENT AAC, AAC RMS CARRIER/TPA RESPONDENTS OPINION FILED MAY 1, 2023 Hearing before Administrative Law Judge JayO. Howe in McGehee, Desha County, Arkansas, on April 27, 2023. Mr. Mark A...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:07:03.310Z"},{"id":"alj-H205039-2023-04-28","awccNumber":"H205039","decisionDate":"2023-04-28","decisionYear":2023,"opinionType":"alj","claimantName":"Lance Jackson","employerName":"Midwest Logistics System, Ltd","title":"JACKSON VS. MIDWEST LOGISTICS SYSTEM, LTD AWCC# H205039 APRIL 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JACKSON_LANCE_H205039_20230428.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACKSON_LANCE_H205039_20230428.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO.: H205039 \n \n \nLANCE JACKSON, \nEMPLOYEE                                                                                                                 CLAIMANT \n \nMIDWEST LOGISTICS SYSTEM, LTD,  \nEMPLOYER                                                                                                            RESPONDENT                                    \n \nMIDWEST EMPLOYERS’ CASUALTY COMPANY,  \nINSURANCE CARRIER                                                                                        RESPONDENT                           \n          \nGALLAGHER BASSETT SERVICES, INC.,                                                                                                                                  \nTHIRD PARTY ADMINISTRATOR                                                                     RESPONDENT \n \nOPINION FILED APRIL 28, 2023   \n \nHearing held before Administrative Law Judge Chandra L. Black, in Little Rock, Pulaski County, \nArkansas. \n \nClaimant, pro se, failed to appear for the hearing.         \n \nRespondents represented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n \n                                                         Statement of the Case      \n \n A hearing was held on April 26, 2023 in the present matter pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004),  to  determine  whether  the \nabove-referenced matter should be dismissed for failure to prosecute under the provisions of Ark. \nCode Ann. §11-9-702 (d) (Repl. 2012), and Arkansas Workers’ Compensation Commission Rule \n099.13.  \nAppropriate Notice of this hearing was attempted on all parties to their last known address, \nin the manner prescribed by law.   \nThe  record  consists  of  the  transcript  of  the  April  26,  2023,  hearing  and  the  documents \ncontained therein.  The remainder of the Commission’s file has also been made a part of the record.  \n\nJackson  – H205039 \n \n2 \n \nIt is hereby incorporated herein by reference.  The Respondents’ Hearing Exhibit Packet consisting \nof ten numbered pages was marked as Respondents’ Exhibit 1.     \n                                                                 Discussion \n On  August  24,  2022,  the Claimant’s attorney filed  with  the  Commission  a  claim  for \nArkansas workers’ compensation benefits  on  behalf  of  the  Claimant  by  way  of  a  Form  AR-C.  \nSpecifically, the Claimant’s attorney alleged: “During  and in  the  course  of  his  employment  he \nsuffered  injuries  to  his  back,  torso,  and  other  whole  body.”    These  alleged  injuries  occurred  on \nMarch  14,  2022.    His  attorney checked all the boxes for both initial and additional workers’ \ncompensation benefits.        \n  The  respondent-insurance-carrier  filed  a  Form  AR-2  with  the  Commission  on July  14, \n2022, wherein they accepted compensability as a \"medical only” claim.  \n On  or  about  November  8,  2022, the Claimant’s attorney filed with the Commission a \nmotion to be relieved as counsel of record.   The Full Commission entered an order granting the \nmotion for Claimant’s attorney to withdraw as counsel for the Claimant in this matter on or about \nNovember 18, 2022. \nSince this time and the filing of the Form AR-C, there has been no action on the part of the \nClaimant to prosecute this claim, or otherwise pursue benefits.  \nOn February 22, 2023, the Respondents filed with the Commission a Motion to Dismiss \nfor  Failure  to  Prosecute,  along  with  a  Certificate  of  Service.    Hence,  that  same  day,  the \nRespondents mailed a copy of said motion to the Claimant via the United States Postal Service. \nThe  Commission  sent  a  notice of the Respondents’ motion  to  the  Claimant  last  known \naddress  on  February  28,  2023.    Per  this  correspondence,  the  Claimant  was  given  a  deadline  of \nMarch 20, 2023, for filing a written response to the Respondents’ motion.  \n\nJackson  – H205039 \n \n3 \n \n Yet, there was no response from the Claimant. \nTherefore, pursuant to a Hearing Notice dated March 22, 2023, the Commission notified \nthe parties that a hearing was scheduled to address the Respondents’ motion to dismiss this claim \ndue to a lack of prosecution.  Said hearing was scheduled for April 26, 2023, at 11:00 a.m., at the \nArkansas Workers’ Compensation Commission, in Little Rock, Arkansas. \n However,  on  April  17,  2023,  the  United  States  Postal  Service  returned  the Claimant’s \nnotice to the Commission essentially marked, “undeliverable.”     \n A hearing was in fact conducted on the Respondents’ motion as scheduled.  The Claimant \nfailed to appear at the hearing.  However, the Respondents appeared through their attorney.   \nCounsel  essentially  noted  that  the  Claimant  has  failed  to  timely  prosecute  his  claim  for \nworkers’ compensation benefits.  Counsel noted that there has been no attempt on the part of the \nClaimant  to  interact  with  the  Respondents  in  resolving  and/or  otherwise  prosecuting  his  claim.  \nMoreover, nor did the Claimant appear at the hearing to object to the dismissal of his claim, and \nhe has not done anything to pursue the claim since the filing of the Form AR-C in August 2022, \nwhich was over eight months ago.  Therefore, counsel moved that this claim be dismissed under \nthe provisions of Ark. Code Ann. §11-9-702, and Arkansas Workers’ Compensation Commission \nRule 099.13. \nThe record before me shows that a request for a hearing has not been filed by or on behalf \nof the Claimant since the filing of the Form AR-C, which was over more than six months ago.  Of \nsignificance, the Claimant failed to appear at the dismissal hearing, nor has he objected to his claim \nbeing dismissed, or responded to the notices of this Commission.  Hence, the preponderance of the \nevidence shows that the Claimant has abandoned his claim for workers’ compensation benefits.  \nTherefore, the dismissal of this claim is warranted, without prejudice, to the refiling of it within \n\nJackson  – H205039 \n \n4 \n \nthe limitation period specified by law.  I further find that said dismissal should be and is hereby \nmade  pursuant  to  the  provisions  of  Ark.  Code  Ann.  §11-9-702,  and Arkansas  Workers’ \nCompensation Commission Rule 099.13. \n                            FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole,  I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. On August 24, 2022, the Claimant’s attorney filed a Form AR-C, with the \nCommission, alleging that the Claimant sustained injuries to his back, torso, \nand other whole body.   \n \n3. The respondent-insurance-carrier filed a Form AR-2, with the Commission \non or about July 14, 2022, accepting this claim as a “medical only” claim.     \n \n4. The Full Commission entered an order granting the Claimant’s attorney \nmotion to withdraw from representing him in this matter on November 18, \n2022.     \n \n5. Since the filing of the Form AR-C more than eight months ago, the Claimant \nhas failed to prosecute his claim and he not taken any action to advance it \nto a hearing.    \n \n6. On  February  22,  2023,  the  Respondents  filed  with  the  Commission, a  \nMotion  to  Dismiss  for  Failure  to  Prosecute.   A  hearing  was  held  on  the \nmotion,  but  the  Claimant  failed  to  appear  at  the  hearing,  and  he  has  not \nobjected to his claim being dismissed. \n \n7. The evidence preponderates that the Claimant has failed to prosecute this \nclaim  under  the  provisions  of  Ark.  Code  Ann.  §11-9-702,  and  Arkansas \nWorkers’ Compensation Commission Rule 099.13.   \n \n8. Appropriate Notice of the dismissal hearing was attempted on all parties to \ntheir last known address, in the manner prescribed by law.    \n \n            9. The Respondents’ motion  to  dismiss  is  hereby  granted  without  prejudice \npursuant  to  Ark.  Code  Ann.  §11-9-702,  and  Commission  Rule  099.13,  to \nthe refiling of it within the limitation period specified by law.  \n \n\nJackson  – H205039 \n \n5 \n \nORDER \n \n In accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby dismissed pursuant to Ark. Code Ann. §11-9-702, and Arkansas Workers’ Compensation \nCommission  Rule  099.13,  without  prejudice  to  the  refiling  of it,  within  the  limitation  period \nspecified by law.  \n        IT IS SO ORDERED. \n \n \n                              _______________________________ \n               HON. CHANDRA L. BLACK \n               Administrative Law Judge","textLength":8779,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H205039 LANCE JACKSON, EMPLOYEE CLAIMANT MIDWEST LOGISTICS SYSTEM, LTD, EMPLOYER RESPONDENT MIDWEST EMPLOYERS’ CASUALTY COMPANY, INSURANCE CARRIER RESPONDENT GALLAGHER BASSETT SERVICES, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED APRIL 28, 202...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:09:00.376Z"},{"id":"alj-H204068-2023-04-27","awccNumber":"H204068","decisionDate":"2023-04-27","decisionYear":2023,"opinionType":"alj","claimantName":"Danielr Allen","employerName":"Bekaert Corporation","title":"ALLEN VS. BEKAERT CORPORATION AWCC# H204068 APRIL 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//ALLEN_DANIELR_H204068_20230427.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ALLEN_DANIELR_H204068_20230427.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H204068 \n \nDANIEL R. ALLEN, EMPLOYEE   CLAIMANT \n \nBEKAERT CORPORATION, EMPLOYER RESPONDENT \n \nGALLAGHER BASSETT SERVICES INC., INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED APRIL 27, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by CODY GRACIE, Attorney, Fort Smith, Arkansas \n \nOPINION/ORDER \n \n On  June  3,  2022,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on  April  25, \n2021.   Claimant was not represented by an attorney when the AR-C was filed, and is still pro se.   \nOn February 16, 2023, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time. A hearing on  respondent’s Motion to Dismiss was scheduled for \nApril 18, 2023. Notice of the scheduled hearing was sent to claimant by certified mail at the last known \naddress in the Commission’s file. The notice was delivered to claimant on March 2, 2023.  Claimant \ndid not respond to Respondent’s motion and  did  not  appear  in  person at  the  hearing  on  April  18, \n2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the Respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the Respondent’s motion, as well as all other matters \n\nAllen-H204068 \n \n2 \n \nproperly before the Commission, I find that Respondent’s Motion to Dismiss this claim should be \nand hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2070,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204068 DANIEL R. ALLEN, EMPLOYEE CLAIMANT BEKAERT CORPORATION, EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES INC., INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED APRIL 27, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebas...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:08:54.114Z"},{"id":"alj-H205003-2023-04-27","awccNumber":"H205003","decisionDate":"2023-04-27","decisionYear":2023,"opinionType":"alj","claimantName":"Charliej Clark","employerName":"Tyson Poultry Inc","title":"CLARK VS. TYSON POULTRY INC. AWCC# H205003 APRIL 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CLARK_CHARLIEJ_H205003_20230427.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CLARK_CHARLIEJ_H205003_20230427.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H205003 \n \nCHARLIE J. CLARK, Employee                                                                                 CLAIMANT \n \nTYSON POULTRY INC., Self-Insured Employer                                                RESPONDENT \n \n \n OPINION FILED APRIL 27, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by J. MATTHEW MAULDIN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On March 16, 2023, the above captioned claim came on for hearing at Springdale, Arkansas.  \nA pre-hearing conference was conducted on November 17, 2022, and a pre-hearing order was filed \non that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 \nand made a part of the record without objection. \n At the hearing, the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on or about April 3, 2022. \n 3.   The claimant’s compensation rate is $683.00 for temporary total disability, based on an \naverage weekly wage of $1024.00. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n 1.   Whether claimant sustained a compensable injury on or about April 3, 2022. \n 2.    If compensable, whether claimant is entitled to temporary total disability benefits from \nSeptember 2, 2022, through October 23, 2022, medical benefits, and an attorney’s fee. \n\nClark-H205003 \n \n \n \n 3.   Respondents raise lack of notice before July 6, 2022. \n The  claimant  contends that “he is entitled to treatment for his left wrist, and to temporary \ntotal disability benefits from his date last worked to a date yet to be determined. Claimant reserves all \nother issues.”  \n The respondents contend that “claimant cannot prove an accidental injury, caused by a specific \nincident and identifiable by time and place of occurrence, which caused internal or external physical \nharm to the body, arising out of and in the course of employment, which required medical services or \nresulted in disability or death, and established by medical evidence supported by objective findings. \nAlternatively, regarding the notice defense, claimant first notified respondents of an alleged left wrist \ninjury on July 6, 2022; accordingly, respondents contend that they are not liable for benefits prior to \nJuly 6, 2022 when they received notice of the alleged injury. Respondents contend that claimant is not \nentitled  to  medical  benefits.  Respondents  contend  that  claimant  is  not  entitled  to  temporary  total \ndisability   benefits.  Respondents   respectfully   reserve   the   right   to   supplement   this   prehearing \nquestionnaire at a later date.” \n From a review of the entire record, including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the claimant \nand  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nNovember  17,  2022  and  contained  in  a  pre-hearing  order  filed  that  same  date,  as  well  as  the \nannouncements prior to the hearing, are hereby accepted as fact. \n\nClark-H205003 \n \n \n3 \n \n 2.   Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  suffered  a \ncompensable injury to his left wrist on or about April 3, 2022. \n \n FACTUAL BACKGROUND \n The pre-hearing order in this matter asserted that the claimant was injured on or about April \n3, 2022.  The testimony of the claimant makes that date impossible, as March 21, 2022 was the first \ndoctor’s visit for his alleged injury.  While somewhat confusing, the summary of the testimony will \nreflect what was said at the hearing; claimant did admit that he wasn’t positive of the date of his alleged \ninjury, but was clear that it was before his first examination of his left wrist injury.    \nHEARING TESTIMONY \n \n Claimant testified that he was employed in the maintenance department at Tyson’s in March \nand April 2022. He said on or about April 3, 2022, he “weaved a belt and turned my wrist, you know, \nwhile I was pulling on the wire. It just felt like a heat flash in my wrist.” When asked to describe the \ninjury in more depth claimant said “it’s like a stainless-steel belt, and you got to weave it together, you \nknow, it’s continuous around the machine, and you have to weave that together, and each side you \nhave to pull. It’s hard to do. It’s a technique. It’s more finesse than it is strength, but when you are \nfirst doing it, it’s pretty aggravating when you are pulling it hard, but that’s the gist of it.” Claimant \nsaid the injury was to his left wrist and did not believe it was serious at the time, but it started hurting \nand  claimant  wanted  to  go  to  the  doctor.  At  the  time  he  determined  he  wanted  to  seek  medical \nattention—which was weeks after the alleged injury—claimant stated that he told his supervisor, Eddie \nColeman, that he had hurt his wrist. He first went to Marathon Clinic, and the records were dated \nMarch 21, 2022. Claimant testified that he was sent to Berryville to have x-rays. He did not remember \nwhat he told the first doctor he saw.   As claimant continued to have pain in the wrist, he eventually \n\nClark-H205003 \n \n \n4 \n \nfiled a formal report with the nurse at Tyson after he had seen Dr. Lewis. (The records show the first \nvisit with Dr. Lewis was on June 21, 2022, and claimant’s report to the nurse was July 6, 2022.) \n Claimant said that after he filed the report with the nurse, he had surgery on his left wrist and \nwas off work for a period of time, but workers’ compensation did not pay for his treatment or time \noff  work.  Claimant  acknowledged  that  he  had  a  shoulder  injury  at  Tyson  that  predated  his  alleged \nwrist injury which was accepted by respondent. When asked how his wrist was doing as of the date of \nthe hearing, claimant stated that it was still sore, and that he had restricted movements. However, he \nwas still doing physical therapy on it, and he reported that it was getting better each time that he went. \n On cross-examination, claimant admitted that he reported his shoulder injury on June 2, 2021, \nwhich  was  the  day  that  it  occurred.  Claimant  confirmed  that  his  wrist  injury  was  not  a  gradual \noccurrence but something he related to a specific moment in time. Claimant denied any problems with \nhis left wrist prior to the alleged injury in April 2022. Claimant conceded that it was Tyson’s policy to \nreport all work-related injuries immediately, but that he did not report his alleged left wrist injury until \nhe told his supervisor Eddie Coleman. Claimant was unclear when he made the report to Mr. Coleman, \nstating that it could have been within a week or more than a week. When pressed for when the report \nto Mr. Coleman was made, claimant said that it was when he saw Dr. Bei He, which was on March \n21, 2022. When it was pointed out to him that the visit with Dr. He was earlier than he had previously \ntestified, claimant admitted he was unsure of the date. Claimant said he reported the injury to Tyson \non July 6, 2022, because he was going to be off work in a cast, and he wanted to file with UNUM to \nbe paid while he was off work. \n Claimant stated he moved from the maintenance department to the refrigeration department \nshortly after the alleged injury. Once claimant moved to the refrigeration department, Eddie Coleman \nwas no longer his supervisor. \n\nClark-H205003 \n \n \n5 \n \n Claimant was asked about the injury as described in Dr. He’s records, and said he did not tell \nDr. He that the issues with his wrist were not work related. Claimant also disputed the entry in Dr. \nBrady Luttrell’s records that indicated that his left wrist issues were not due to an injury. Claimant was \nthen asked about the records from Dr. Natasha Lewis, and specifically this entry on June 21, 2022 “he \ndenies any particular injuries that initiated his symptom onset.” Claimant said “I told them all I hurt it \nat work, but I don’t understand why they are not...” He did not know that the short-term disability \nform that Dr. Lewis completed for him described his left wrist condition as neither an injury related \nnor work related. \n Claimant  was  shown  the  team  member’s  statement  of  injury  or  illness  and  agreed  that  he \ncompleted the report on July 6, 2022. Claimant agreed that he had answered “none” on the section \nthat asked about the date the injury was reported to his supervisor. He said that he had not formally \nreported it. He disputed what Elaine Snyder, LPN, recorded on her narrative of her encounter with \nclaimant on July 6, 2022: “reports that he is unsure how it happened but feels that on 4/3/22 he hurt \nit here.” \n On redirect-examination, claimant said that while he was working in refrigeration in July, he \nput on the team member statement of injury or illness that his supervisor was Eddie Coleman because \nhe was referring to when the injury happened. Claimant clarified that he put “none” on that form \nwhere it asked the day it was reported to the supervisor, that he meant “formally I hadn’t filled out no \npaperwork or nothing.” Claimant was clear that the day he went to a clinic called “Bright Blue”, which \nis also known as Marathon Health, was the same day that he told Eddie Coleman about his injury. \n On re-cross examination, claimant was definite that he was claiming a specific instance injury \nas opposed to a gradual onset injury. Claimant disputed the entry on Dr. He’s March 21, 2022, record \nthat said he had progressive problems in his left wrist for at least three months.  \n\nClark-H205003 \n \n \n6 \n \n \nREVIEW OF THE EXHIBITS \n \n Because it is the cause of the injury, rather than the existence of it, that is in question in this \ncase, an exhaustive look at the medical records is unnecessary. The parties duplicated several records \nin their submissions, and this review will be done in chronological order. \n Claimant first saw Dr. Bei He on March 21, 2022. Dr. He’s note begins “claimant denies injury \nat work, report pain gradually increased over time, report formation of nodules on the dorsal aspect \nof the wrist. Patient reports that it has been progressive in the past three months, worse in the past \ntwo weeks. Patient works maintenance and would need to use tools that require repetitive motion with \nhis hands. Patient reports his workload has increased. Patient denies previous injury to his left wrist \nand also reports the decline of his general health.” Claimant’s left wrist was x-rayed during that visit \nand the impression was “no acute fracture with mild to moderate degenerative disease and borderline \nwidened scapholunate interval.” While there was no chart entry submitted for a visit with Dr. He on \nApril 5, 2022, a limited sonography of the left wrist was performed on that date, listing Dr. He as the \nordering provider. The impression of that test was “questionable 2.1-centimeter focus on transverse \nimaging in the area of interest is not confirmed on longitudinal imaging. No definite cyst identified. If \nof significant clinic concern, consider MRI without and with contrast.”  \n Dr. He’s records show a visit with claimant on April 15, 2022, in which he terms the problem \nwith claimant’s left wrist as a ganglion cyst: “chronic, unchanged. Likely the cause of his left wrist pain, \ntold him this likely from nature of his work and repeated trauma”. \n While  claimant  did  not  remember  seeing  both  Dr.  He  and  Dr.  Luttrell  the  same  day,  the \nrecords show that he saw Dr. He around 10:00 a.m. and Dr. Luttrell at 2:06 p.m. on April 15, 2022. \nClaimant saw Dr. Luttrell for more than just his wrist pain, as the chief complaint  for this visit was \n\nClark-H205003 \n \n \n7 \n \nhypertension. As noted above, Dr. Luttrell in the patient’s active problem list, the only thing listed \nthat relates to the present workers’ compensation claim is “synovial cyst of the left wrist.” Regarding \nthat  synovial  cyst,  Dr.  Luttrell  determined  that  claimant  needed  to  be  referred  to  an  orthopedic \nsurgeon for further evaluation. \n Claimant  next  saw  Dr.  Natasha  Lewis,  an  orthopedic  surgeon,  on  June  21,  2022.  She \ndetermined that the left wrist x-rays from March 2022 demonstrated a stage III scapholunate advanced \ncollapse of the left wrist; that surgery was performed on September 2, 2022. In that visit, Dr. Lewis \nasked  claimant  about  the  cause  of  the  injury  and  recorded “He denies any particular injuries that \ninitiated his symptom onset.” On October 18, 2022, claimant was released to return to work on one-\nhanded duty only.  \nIn the record from Mercy Physical Therapy on October 19, 2022, physical therapist Jodie Hill \nrecorded “patient reports he initially injured left wrist at work while pulling on the belt. I felt a bit of \na burn, thought I had maybe sprained it.” Claimant had a course of physical therapy treatment which \nbegan  in  October  2022  and  continued  through  December  30,  2022,  but  nothing  in  this  physical \ntherapy reports are germane to the issues of this case.    \n \nADJUDICATION \n \nIn order to prove a compensable injury as the result of a specific incident that is identifiable \nby time and place of occurrence, a claimant must establish by a preponderance of the evidence (1) an \ninjury arising out of and in the course of employment; (2) the injury caused internal or external harm \nto  the  body  which  required  medical services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence. Odd Jobs and More v. Reid, 2011 Ark. App. 450, \n\nClark-H205003 \n \n \n8 \n \n384 S.W. 3d 630.  I believe the medical records provide objective findings that claimant had a problem \nwith his wrist that required medical services to remedy.  Claimant was unsure of the precise date that \nthe alleged injury occurred, but that is not fatal to a claim, Edens v. Superior Marble & Glass, 346 Ark. \n487, 492, 58 S.W.3d 369, 373 (2001) “Although the inability of the claimant to identify the exact date \nof an injury might be considered by the Commission in weighing the credibility of the evidence, the \nstatute does not require that the exact date be identified in order for the injury to be compensable.”  \nHe testified that he wasn’t sure of the date he was hurt, but that it was before he first saw Dr. He on \nMarch 21, 2022. I’m unclear why he didn’t review his medical records to refresh his memory before \nhe testified at his deposition or at the hearing, but I don’t find his lack of clarity as to the precise date \nan impediment to his claim.   \nHowever, claimant failed to meet his burden of proof that his wrist issues arose from the \ncourse of his employment.  I find similarities between this matter and Luster v. Ben E. Keith Co., 2012 \nArk. App. 197, which included these two paragraphs:  \n“In  this  case,  the  objective  medical  evidence  indicated  a  three-month  gap \nbetween  the  date  of  the  accident  and  the  report  of  the  injury,  calling  into \nquestion whether Mr. Luster's back injury was indeed a result of the work-\nrelated  accident.  Although  the  Commission  emphasized  the  conflicting \ntestimony regarding the exact date of the incident, it was undisputed that Mr. \nLuster fell from a ladder while working sometime in March 2010. Mr. Luster's \ninability   to   identify   a   certain   date   does   not   bar   him   from   receiving \ncompensation; however, it was within the Commission's province to consider \nthis  confusion  about  the  date  as  a  matter  of  credibility.  The  Commission \nclearly weighed the conflicting evidence against Mr. Luster, finding his entire \ntestimony to be suspect. \n \nBecause the medical records make no mention of the ladder incident until the \nback injury was discovered in June 2010, Mr. Luster's testimony was the only \nevidence linking the injury to the March 2010 fall. Given  the span of three \nmonths, reasonable persons might disagree as to the actual cause of the injury. \nOur  standard  of  review  requires  that  we  defer  to  the  Commission  on  such \nquestions of fact and credibility. The Commission noted that the following \nmedical  evidence  contradicted  Mr.  Luster's  testimony:  medical  records  of \n\nClark-H205003 \n \n \n9 \n \nMarch 10, 2010, indicated that he related his back pain to slipping and falling \non ice the previous February; and the medical records had no mention of any \nincident involving the ladder until June 14, 2010, when he sought emergency \ntreatment for a kidney stone and was told that he had additional problems. \nThe Commission further noted that, at the time of the fall, Mr. Luster told \nMs.  Grant  and  Mr.  Shutes  that  he  was  fine.  Based  on  this  evidence,  the \ndecision of the Commission displays a substantial basis for the denial of Mr. \nLuster's claim. Therefore, we must affirm.” \n \nMuch like Mr. Luster’s claim, there was not only a delay in claimant reporting in this matter,\n1\n \nbut there are also contradictory statements in the medical records.  For me to find claimant’s testimony \nwas credible, I’d have to find: \n1.  Dr. He misreported what claimant said on March 21, 2022, when he denied the wrist issue \nwas work related.  \n2. Dr. Luttrell erred when the question about if claimant had suffered an “injury” was marked \n“no.”  \n3. Dr. Lewis misheard claimant when she wrote that he denied any specific incident caused \nhis injury.    \n4. Elanie Snyder, the LPN that took the report of injury from him on July 6, 2022 didn’t \naccurately record what he said when she wrote: “reports that he is unsure how it happened \nbut feels that on 4/3/22 he hurt it here.” \n5. Claimant asked Dr. Lewis to assist him in filing for UNUM benefits in September 2022 \nand she was mistaken that his condition was due to an illness as opposed to an injury.  \n I find it is more likely that these records are accurate.  Mr. Clark’s testimony was insufficient \n \n1\n  To  be  clear,  I  am  not  convinced  that  claimant  reported  the  injury  to  Eddie  Coleman  as  early  as  he  said  he  did.  \nClaimant filled out a Statement of Injury/Illness on July 6, 2022, and wrote “none” in the box that asked: “Date Injury \nReported To Supervisor.”  While Mr. Coleman’s testimony might have supported claimant’s testimony on that point, \nthe absence of it did not decide this matter.  \n\nClark-H205003 \n \n \n10 \n \nto explain why the records before he made the formal report are uniformly contrary to his testimony \nabout the time and nature of his injury, why the initial report of injury said he wasn’t sure how he hurt \nhis wrist, and why the UNUM form filed after surgery did not classify his left wrist condition as an \ninjury.  As such, I find claimant failed to prove his claim by a preponderance of the evidence.  \n \nORDER \n \nClaimant has failed to meet his burden of proving by a preponderance of the evidence that he \nsuffered  a  compensable  injury  to  his  left  wrist  on  or  about  April  3,  2022.  Therefore,  his  claim  for \ncompensation benefits is hereby denied and dismissed. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \nhearing transcript. \n IT IS SO ORDERED. \n \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":20061,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205003 CHARLIE J. CLARK, Employee CLAIMANT TYSON POULTRY INC., Self-Insured Employer RESPONDENT OPINION FILED APRIL 27, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas. Claimant represented by EVELYN E...","outcome":"denied","outcomeKeywords":["affirmed:1","dismissed:1","denied:5"],"injuryKeywords":["wrist","shoulder","repetitive","fracture","back"],"fetchedAt":"2026-05-19T23:08:56.239Z"},{"id":"alj-H108614-2023-04-27","awccNumber":"H108614","decisionDate":"2023-04-27","decisionYear":2023,"opinionType":"alj","claimantName":"Michael White","employerName":"Pulaski County Special School District","title":"WHITE VS. PULASKI COUNTY SPECIAL SCHOOL DISTRICT AWCC# H108614 APRIL 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WHITE_MICHAEL_H108614_20230427.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WHITE_MICHAEL_H108614_20230427.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: H108614 \nMICHAEL WHITE,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nPULASKI COUNTY SPECIAL SCHOOL DISTRICT,  \nEMPLOYER                                                                                                         RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION,  \nWCT                                                                                                                       RESPONDENT \n \n \n         OPINION FILED APRIL 27, 2023        \n        \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Little Rock, \nPulaski County, Arkansas. \n \nClaimant represented by Mr. Mark Alan Peoples, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by Mr. Guy Alton Wade, Attorney at Law, Little Rock, Arkansas. \n \n \nStatement of the Case \nOn  February  15,  2023,  the  above-captioned  claim  came  on  for  a  hearing in  Little  Rock, \nArkansas.  Previously, a prehearing telephone conference was conducted in matter on November \n30, 2022, from which a Prehearing Order was filed on that same day.  A copy of said order and \nthe parties’ responsive filings have been marked as Commission’s Exhibit 1, and made a part of \nthe record.   \nStipulations \nDuring  the  prehearing  telephone  conference,  and/or  hearing  the  parties  agreed  to  the \nfollowing stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n\nWhite- H108614 \n \n2 \n \n2. That  the  employee-employer-insurance  carrier  relationship  existed  at  all  relevant \ntimes,  including  on  or  about  July  26,  2021,\n1\n  when  the  Claimant  sustained a \ncompensable left knee injury in the course and scope of his employment with the \nPulaski County Special School District.  \n3. The Claimant’s average weekly wage on the  day  of  his  accidental  injury  was \n$769.53, which was sufficient to entitle him to corresponding compensation rates \nof  $513.00  per  week  for  temporary  total  disability  (TTD)  compensation,  and \n$385.00 a week for permanent partial disability (PPD) benefits.  \n4. The  Claimant  was  released  to  return  to  work  at  maximum  medical  improvement \n(MMI) on March 29, 2022, by Dr. Eric Gordon, with a 2% PPD rating to  his left \nlower extremity/knee.     \n5. The Respondents have controverted this claim for a right knee injury in its entirety.  \n6. All   issues   not   litigated   herein   are reserved  under  the  Arkansas  Workers’ \nCompensation Act. \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether the Claimant sustained a compensable injury to his right knee as a result \nof his July 26, 2021 work-related accidental injury. \n2. Whether the Claimant is entitled to the medical treatment of record provided by Dr. \nEthan  Schock  that  has  been  incurred  for  his  right  knee,  and  treatment  going \nforward, including the recommendation for right knee arthroscopy. \n \n1\n  Although at various times during the hearing, the parties referred to the date of injury as being July 27, \n2021, they have now stipulated that the correct date of the Claimant’s accidental injury is July 26, 2021.  (T. 31)      \n\nWhite- H108614 \n \n3 \n \nContentions \n The respective contentions of the parties are as follows: \nClaimant: \n The Claimant contends: \n (a) That he sustained work injuries to his right knee on or about July 26, 2021;  \n (b) That he is entitled to medical treatment relative to his work injuries; and \n            (c) That  the  benefits  set  forth  above  have  been  controverted  and  thus,  the \nundersigned counsel is entitled to maximum statutory attorney’s fees. \nRespondents: \n The Claimant did not sustain a compensable  injury to his right knee within the course and \nscope of his employment.  Any complaints and/or need for treatment pre-existed any claimed work \ninjury and are not the responsibility of the Respondents.  \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the evidentiary record, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear the testimony of the Claimant and observe his demeanor, I hereby make the following findings \nof fact and conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n          \n                      claim. \n \n2.     I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.     The Claimant failed to prove by a preponderance of the credible evidence that he  \n \n                      sustained a compensable injury to his right knee during his work-related incident \n \n                      of July 26, 2021.  \n \n\nWhite- H108614 \n \n4 \n \n          4.       The issue pertaining to medical treatment for the Claimant’s right knee is moot  \n         and will not be addressed herein because of the above Finding/Conclusion No. 3.   \n          5.        All issues not litigated herein are reserved under the Arkansas Workers’ Compensation  \n \n Act. \n      \nSummary of Evidence \nMr. Michael White (referred to herein as the “Claimant”) was the sole witness to testify at  \nthe hearing.  \n            The record consists of the February 15, 2023, hearing transcript and the following exhibits: \nSpecifically, Commission’s Exhibit 1 includes the above referenced documents; the Respondent’ \nMedical Exhibit includes one hundred seventy-one pages and it has been marked as Respondents’ \nExhibit 1; and Respondents’ Non-Medical Exhibits, has been marked as Respondents’ Exhibit 2, \nconsisting of four numbered pages was offered into evidence without objection. \n                                                           Testimony \nMichael White/the Claimant     \n The Claimant is fifty-four years old.  He confirmed that he continues to be employed by \nthe  Pulaski  County  Special  District  and  is  assigned  to  work  at  Harris  Elementary  School.  \nHowever,  on  July  26,  2021,  the  Claimant  worked  at  Daisy  Bates  Elementary  School.  While \nworking at Daisy Bates, the Claimant performed employment duties of a Pre-K paraprofessional.  \nHowever, the Claimant essentially testified that during the summer months, he took on part-time \njobs for the school district preparing the school building for the new school year.  The Claimant \nbasically  testified  that  he  helped  with  the  stripping  and  waxing  of  the  floors,  moving  furniture \naround, cleaning and maintenance of the school, and various other laborious tasks. \n\nWhite- H108614 \n \n5 \n \n On July 26, 2021, the Claimant was helping with a strip and wax of some of the classroom \nfloors.    According  to  the  Claimant,  he  was  teamed  up  with  a  female  coworker.    The  Claimant \ntestified that he went to get the water to rinse the floor and had not been made aware by anyone \nthat another coworker had spilled stripper wax on the floor.  According to the Claimant, when he \nstepped  in  the  hallway,  he  slipped  and  suddenly  fell  to  the  floor.    Specifically,  the  Claimant \nexplained that he “went down really quick and hit the floor real hard.”  The Claimant agreed that \nhis legs went out from under him, causing him to fall and land on his backside. \n The Claimant confirmed that he reported his injury to management, and it was accepted as \na compensable workers’ compensation claim.  He testified that it took about four weeks before he \nheard from the workers’ compensation adjuster.  The adjuster referred the Claimant to Concentra, \nlocated in southwest Little Rock.  The Claimant testified that they took x-rays of his lower back \nand left knee.  Additionally, the Claimant maintained that the medical staff at Concentra started \nhim on physical therapy for both knees and his lower back.  The Claimant further maintained that \nas they performed physical therapy on his left knee, it became more painful, and he could hardly \nwalk.  As a result, they sent the Claimant to Conway for an MRI of his left knee.   \nRegarding the Claimant’s right knee, he asserted: \nQ: And I would like for you to continue, but before we do, just go back.  When you \nvery  first  went  to  Concentra,  did  you  inform  the  doctors  at  Concentra  that  you  had  a \nproblem with your right knee?  \nA: Yes. \nQ: Okay.  You included that in the body parts that you needed help with? \nA: Yes.   \nQ: Okay.  All right.  You went to - - and you had an MRI on your right knee. \n\nWhite- H108614 \n \n6 \n \nA: Yes, sir. \nQ: Okay. \nA:  No, it was on the left knee.   \n(T. 15-16) \nUltimately,  the  Claimant  had  surgery  on  his  left  knee,  and  several  months  of  physical \ntherapy.  The Claimant confirmed that his left knee condition has resolved, and Dr. Eric Gordon \nassigned him a 2% rating.   He further confirmed that the Respondents accepted and paid the 2% \nrating.  \nRegarding his right knee, the Claimant testified that he first received treatment for his right \nknee, after he returned back to work.  However, the Claimant maintained that previously, he had \ntold  Dr.  Gordon  that  he  was  having  issues  with  it  probably  before  being  released  from  care.  \nSpecifically, the Claimant further maintained that his reporting to Dr. Gordon occurred after his \nsurgery, but before he got released from care.           \n The   Claimant   testified   that   while   Arkansas   Ortho   (the   Claimant   is   referring   to \nOrthoArkansas) was doing therapy on both his knees, they concentrated mostly on the knee that \nhe  had surgery on, which was his left knee.  Again, the Claimant maintained that he informed Dr. \nGordon  before  being  released  from  his  care  that  he  was  having  some  issues.    Upon  being \nquestioned as to whether Dr. Gordon refused to treat his right knee, the Claimant did not give an \naudible response.    \nHence, the Claimant’s attorney next asked him how he came under the care of Dr. Ethan \nSchock for his knee.  He explained that he told his primary care doctor, Dr. Richland,\n2\n  about what \nwas going on and she suggested several doctors for him to call and see if they could get him in to \n \n2\n  The medical records show that the Claimant’s primary care physician is Dr. Alison Richardson, instead of \nDr. Richland.  \n\nWhite- H108614 \n \n7 \n \ncheck his right knee.  The Claimant testified that he called Dr. Schock and he agreed to see him.  \nDr. Schock sent the Claimant for an MRI of his right knee.  At that point, they discovered that the \nClaimant had a tear in his right knee.    \nThe Claimant confirmed that he continues to experience problems with his right knee.  He \ndescribed  his  knee  pain  as  being  a  throbbing  pain,  associated  with  some  swelling  from  time  to \ntime.  According to the Claimant, he limps due to the swelling in his right knee.   The Claimant \ntestified  that  he  paid  his  medical  bills  for  his  visits  with  Dr.  Schock  through  his  regular  health  \ninsurance,  which  is  Health  Advantage.  He  confirmed  that  Dr.  Schock  has  recommended \narthroscopy  to  repair  his  right  knee.    The  Claimant  admitted  that  he  wishes  to  have  the  surgery \ndone on his right knee.                   \n On cross-examination, the Claimant confirmed that he has seen the report from Concentra \ndated August 20, 2021, which does not mention a right knee injury.  At that time, the Claimant’s \ndiagnosis was left knee pain.  The Claimant maintained that he told them at Concentra about his \nright knee issues during that initial visit of August 20 because they performed physical therapy on \nboth knees during that time.   However, the Claimant had not started physical therapy during that \ntime.  Per  the  August  20,  2021,  office  visit,  the  Claimant  reported  a  history  of: “Fall at work.  \nSlipped on stripper.  Twisted left knee and hit buttocks.  Continued left knee pain.”   \n Under further cross-examination, the Claimant testified: \nQ: There’s no mention of any right knee issue, is there? \nA: I    -  - mean, I’m trying to  -  - I’m just trying to follow you when say there’s no \nmention. \n(T. 21) \nThe Claimant was given a copy of page 1 of the Respondents’ exhibit for him to review.   \n\nWhite- H108614 \n \n8 \n \nNext, counsel for the Respondents asked the Claimant if there was any mention of right knee pain \nproblems or issues on the document.  Before providing counsel with a direct answer to his question, \nthe Claimant started to explain rather than giving a direct answer.  However, after being prompted \nby counsel to answer the question, the Claimant admitted that the document does not mention any \nright knee problems or issues.  \n Under further questioning, the Claimant admitted that the only thing they took an x-ray of \nat Concentra was of his left knee.  He admitted that the MRI ordered by Concentra was for his left \nknee. The Claimant was shown a copy of page 12 of the Respondents’ exhibit, which is a letter \nfrom the adjuster to Dr. Carle, who is the doctor that the Claimant saw at Concentra.  Per this letter, \nthe adjuster mentions only the Claimant’s left knee.  He confirmed that said letter does not mention \nany problems with his right knee. \n With respect to when his symptoms started, the Claimant testified that he started having \nproblems with throbbing and swelling in his right knee before he was released by Dr. Gordon, and \nwhile he was still undergoing physical therapy.  The Claimant testified that he mentioned his right \nknee to Dr. Gordon several weeks before being released from his care.           \n According to page 161 of the Respondents’ exhibit, Dr. Gordon declared the Claimant to \nbe  at  maximum  medical  improvement  (MMI)  and  gave  him  a  2%  impairment  to  his  lower \nextremity  on  March  29,  2022.    The  Claimant  maintained  that  he  mentioned  the  throbbing  and \nswelling of his right knee to Dr. Gordon sometime in February of 2022. \n The Claimant testified: \n Q: Okay.  So up to that point had you had any issues with your right knee? \n\nWhite- H108614 \n \n9 \n \n A: I had and they were doing therapy on both knees, as I said, at Concentra and \nwhen I went to Arkansas Ortho, and why it’s not documented, I can’t  --  I  can’t \nvouch for that. \n(T. 25) \nHe confirmed that he went to Matthew Brown for physical therapy.  The medical records  \nof the Claimant’s physical therapy visits start on page 54 of the Respondents’ exhibit, and they \ncontinue  through  page  133.    However,  according  to  these  medical  records,  the  only  thing  they \ntreated in physical therapy was the Claimant’s left knee.  The Claimant testified that he does not \nknow  why  there  is  no  documentation  of  any  problem  with  his  right  knee  in  any  of  his  physical \ntherapy records.  Also, the Claimant testified that he does not have reason to account for their lack \nof documentation.  \nNext, counsel for the Respondents questioned the Claimant about an incident involving his \nright knee, which he mentioned to his PCP, Dr. Richardson.  He confirmed that Dr. Richardson is \nthe  doctor  he  saw  complaining  of  right  knee  problems  after  his  release  by  Dr.  Gordon.    The \nClaimant admitted that he mentioned an incident to Dr. Richardson concerning him having hit his \nknee on the bed.  However, the Claimant continued to deny having injured his knee during this \nincident  and  continued  to  maintain  that  he  injured  his  knee  during  his  work-related  fall  of  July \n2021.  The Claimant specifically stated that he does not recall which knee he injured during the \nincident at his home.   \nOn page 171 of the Respondents’ exhibit is a note authored by Dr. Ethan Schock. It reads: \n“Dr. Richardson’s note of July 18, 2022 describes a new injury to his right knee which occurred \nwhen he struck some furniture in his home in a separate incident.”  The Claimant admitted that he \ntold Dr. Richardson he bumped his knee on his bed.  However, he stated that he discussed with his \n\nWhite- H108614 \n \n10 \n \ndoctor about the fall that he had at work and the surgery on his left knee.  Dr. Schock stated in his \nnotes, “In none of Dr. Gordon’s medical records and his subsequent visits and documentation, is \nthere is no mention of any injury to the right knee on July 27, 2021.”  The Claimant testified that  \nhe does not know why he said that because they were doing therapy on both his knees and lower \nback and then not documenting what they were doing.  Also, the Claimant testified that he could \nnot give an account of why the Concentra records are completely blank when it comes to any type \nof injury to his right knee, or why Dr. Gordon’s records do not show a right knee injury.  According \nto the Claimant, Dr. Gordon met with him several times before releasing him, and he touched and \nfelt around his right knee.  Therefore, the Claimant maintained that he would have assumed that \nDr. Gordon would have done what Dr. Schock did and had an MRI done prior to releasing him.  \nThe Claimant testified: \nQ: So Concentra’s records are wrong; Dr. Gordon’s records are wrong; the  \nphysical therapist’s records are wrong, if we’re to believe you that you told them \nof the right knee problems, correct? \nA: Correct. \nQ: They’re all wrong? \nA: Correct.   \n(T. 28)       \n                                                               Medical Evidence \nThe Claimant was evaluated by Dr. Ethan Schock on June 16, 2022 for consideration of \nhis right knee.  Dr. Schock noted that the Claimant had a history of a previous left knee arthroscopy \nperformed by his partner, Dr. Gordon, in a work-related injury last year.  The Claimant reported \nright knee pain associated with weightbearing and walking, but also at rest.  However, per these \n\nWhite- H108614 \n \n11 \n \nclinical notes, the Claimant gave a duration of right knee problems for four months.  Dr. Schock \nordered an MRI of the Claimant’s right knee to further evaluate what may represent a medial \nmeniscus tear versus a more distal/pes anserinus related process.                 \nAn MRI was performed of the Claimant’s right knee on June 24, 2022, with the following \nimpression: \n1. Complex undersurface tearing of the medial meniscus is centered at the body posterior \nhorn junction with mild adjacent reactive bone marrow edema of the medial tibial plateau.  \n \n2.  Prominent  area  of  high-grade  partial-thickness  cartilage  loss  at  the  posterior  medial \naspect  weightbearing  medial  femoral  condyle   with  mild  to  moderate   degenerative \nsubchondral T2 hyperintense signal.  \n \n3. Small area of high-grade partial-thickness cartilage fissuring at the patella. \n \n4. Probable mild edema at the superolateral aspect of Hoffa’s fat pad, which can be seen \nwith patellofemoral maltracking.     \n \nOn August 24, 2022, Dr. Schock authored a medical report.  \nI have reviewed available records in the Ortho Arkansas EMR, provided x-rays, provided  \nx-rays of the right knee dated November 2, 2021 as well as a family practice note with Dr. \nAllison Richardson on July 18, 2022. \n \nPatient does have a history of a work-related injury on July 27, 2021 to his left knee which \nwas treated by my partner, Dr. Eric Gordon with knee arthroscopy on October 21, 2021. \n \nIn none of Dr. Gordon’s medical records, and my subsequent visits and documentation is \nthere any  mention of injury to the right knee on July 27, 2021. \n \nDr. Richardson’s note from July 18, 2022 describes a “new injury to the right knee which \noccurred when he struck some furniture in his home in a separate incident.” \n \nConsidering these sources of information and lack of documentation or previous mention \nof right knee involvement with the July 27, 2021 work-related incident, I believe there is \nno/0% causal relationship to his present right knee meniscal and degenerative arthritis knee \nissues.  This opinion is rendered within a reasonable degree of medical certainty. \n   \nMy review of the Non-Medical Exhibit records of evidence shows that on July 27, 2021,  \n\nWhite- H108614 \n \n12 \n \nthe Claimant signed a Form AR-N wherein he asserted injuries to his back and shoulders as a result \nof his work-related fall on July 26, 2021.       \nThe Claimant’s attorney filed a Form AR-C with the Commission on July 11, 2022.  Per  \nthis document, the counsel for the Claimant wrote “Claimant injured both knees on July 26, 2021.       \n         Adjudication \n A.   Compensability/Right Knee      \nIt is undisputed that the Claimant sustained an admittedly compensable injury to his left \nknee on July 26, 2021, when he slipped and fell on a wet floor at Daisy Bates Elementary School \nwhile  he  and  other  coworkers  were  in  the  process  of  stripping  and  waxing  the  floors.    The \nRespondents accepted the claim for a left knee injury and have paid benefits to and on behalf of \nthe Claimant, including a 2% impairment rating as assessed by his treating physician, Dr. Gordon.    \nHowever, the Claimant now asserts that he injured his right knee during his slip and fall \naccident  on  July  26,  2021.    Hence,  the  crucial  issue  for  determination  is  whether  the  Claimant \nsustained an injury to his right knee as a result of his work-related slip and fall incident on July 26, \n2021.  \n            In Ark. Code Ann. §11-9-102(4)(A)(i)(Repl. 2012), “compensable injury” means:  \n(i)  An accidental injury causing internal or external physical harm to the body ... \narising out of and in the course of employment and which requires medical services \nor results in disability or death.  An injury is “accidental” only if it is caused by a \nspecific incident and is identifiable by time and place of occurrence[.]    \n  \n  A  compensable  injury  must  be  established  by  medical  evidence  supported  by  objective \nfindings.  Ark. Code Ann. §11-9-102(4)(D).  “Objective findings” are those findings which cannot \ncome under the voluntary control of the patient.  Ark. Code Ann.§11-9-102 (16)(A)(i).    \n\nWhite- H108614 \n \n13 \n \n The employee has the burden of proving by a preponderance of evidence that he sustained \na compensable injury.  Ark. Code Ann. §11-9102(4)(E)(i).  Preponderance of the evidence means \nthe evidence having greater weight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil \nCo., 81 Ark. App. 269, 101 S.W.3d 252 (2003), citing Smith v. Magnet Cove Barium Corp., 212 \nArk. 491, 206 S.W.2d 442 (1947).       \n After  reviewing  the  evidence  in  this  case  impartially,  without  giving  the  benefit  of  the \ndoubt to either party, I find that the Claimant has failed to prove by a preponderance of the credible \nevidence  that  he  sustained  a  compensable  right  knee  injury  on  July  26,  2021,  during  his  work- \nrelated fall.   \n Although I am convinced the Claimant is a hardworking employee, I found his  testimony \nto be less than forthcoming and incredulous concerning his alleged right knee injury.  Here, the \nClaimant’s testimony was marked by numerous inconsistencies and rebutted by the documentary \nevidence  of  record,  particularly,  the  medical  records.    As  a  result,  due  to  all  the  surrounding \ncircumstances outlined below, I cannot find that the Claimant has proven by a preponderance of \nthe evidence a causal connection between his workplace incident of July 26, 2021, and his current \nright knee condition.  \nSpecifically, the Claimant gave conflicting and confusing testimony concerning his alleged \nreporting of a right injury to medical professionals due to his work-related injury of July 2021.  In \nfact, what is most telling is the fact the Claimant’s testimony is not corroborated by the medical \nrecords.  It is highly improbable that multiple doctors and medical professionals failed to document \nthe Claimant’s report of a right knee injury.  Likewise, the mechanism of the Claimant’s fall is not \nconsistent with a right knee injury in either of his varied accounts of the incident.       \n\nWhite- H108614 \n \n14 \n \n In  that  regard,  during  the  hearing  the  Claimant  testified  that  he  landed  on  his  backside.  \nHowever, when the Claimant provided a history of his workplace incident during his first visit to \nConcentra  on  August  20,  2021,  the  Claimant  reported  that  he “twisted  his  left  knee  and  hit  his \nbuttocks.”  There is absolutely no mention of a right knee injury.  The Claimant’s first medically \ndocumented  treatment  of  record  for  consideration  of  his  right  knee  is  not  until  a  year  after  his \nwork-related injury of July 26, 2021.  However, the Claimant continued to maintain that he made \ninitial reports of  an injury to his right knee to several treating medical professionals despite the \nfact  there  is  absolutely  no  documentation  of  an  alleged  right  knee  injury  in  any  of  the \ncontemporaneous medical reports as discussed above.  The Claimant was unable to explain why \nmultiple medical staff persons would omit from their medical notes his report of a right knee injury.  \nIt is noteworthy that a day after his work-related incident, the Claimant reported on the Form AR-\nN that he sustained injuries to his “shoulders and low back.”  In fact, there is absolutely no mention \nwhatsoever of an injury to either of the Claimant’s knees.     \nNevertheless, although on cross-examination, the Claimant denied he injured his right knee \nin a separate incident at his home after his work-related incident.  However, the medical records \nshow  that  on  July  18,  2022,  the  Claimant  reported  to  his  PCP,  Dr.  Richardson,  a  subsequent \nincident with his right knee wherein he struck his knee on some furniture at his home.  What is \nmost telling is the fact that the Claimant admitted to use of his personal health insurance to pay for \nthe treatment relating to his right knee.      \nMore  importantly,  there is  no  probative  evidence  whatsoever,  demonstrating  or  even \nsuggesting  that  the  Claimant  injured  his  right  knee  during  his  work  incident  of  July  26,  2021.  \nLikewise,  the  diagnostic  tests  (namely,  the  MRI)  of  record  demonstrate  significant  pre-existing \nabnormalities of the right knee that are degenerative in nature.  \n\nWhite- H108614 \n \n15 \n \nOn August 24, 2022, Dr. Ethan Schock opined that due to the lack of documentation of a \nright knee injury by Dr. Gordon, the report of a new injury by Dr. Richardson in a separate incident \nat his home, and his degenerative arthritic knee issues, there is a zero percent causal relationship \nto the Claimant’s present right knee problems and his work injury of July 26, 2021.  This opinion \nwas rendered within a reasonable degree of medical certainty.  There  are no expert opinions to the \ncontrary.    \nTo summarize,  I am not persuaded that the Claimant injured his right knee  during his July \n26, 2021 work-related fall due to the following: Considering the lack of any documented complaint \nof  a  right  knee  injury  despite  the  Claimant  having  been  evaluated  by  multiple  medical \nprofessionals;  that  there  is  no  medically  documented  report  of  an  injury  to  his  right  knee  until \nalmost  after  a  year  of  his  injury;  the  expert  opinion  of    Dr.  Schock  of  there  being  no  causal \nconnection  of  his  present  knee  condition  to  his  work-related  incident;  there  being  no  expert \nmedical opinion or probative evidence to the contrary; the fact that the Claimant struck his right \nknee on furniture at his home following his work-related fall; the mechanism of his fall; the fact \nthat he used his personal health insurance to pay for treatment on his right knee treatment with Dr. \nSchock; and because there are significant degenerative abnormalities of the Claimant’s right knee  \ndemonstrated  on  the  MRI  of  June  2022,  for  which  the  surgical  intervention  is  geared  toward \nrepairing.   I  am  aware  that  in  workers’  compensation  law,  employment  circumstances  that \naggravate  pre-existing  conditions  are  compensable.    However,  taking  into  consideration  all  the \nother probative evidence demonstrating otherwise, I do not find that to be the case here.      \nHence, for all the reasons set forth above, I am convinced that it would require conjecture \nand speculation to causally link the Claimant’s current right knee complaints to  his  workplace \n\nWhite- H108614 \n \n16 \n \ninjury  of  July  26,  2021.    Conjecture  and  speculation  cannot  supply  the  place  of  proof.   Dena \nConstruction Co. v. Herndon, 264 Ark. 791, 575 S.W.2d 155 (1979).   \nUnder these circumstances, I am compelled to find that the Claimant failed to prove by a \npreponderance of the evidence that there is a causal connection between his July 26, 2021 work-\nrelated fall and the abnormalities demonstrated on the June 2022 MRI of his right knee, for which \nsurgical intervention has been recommended by Dr. Schock.       \n  Therefore, based on all of the foregoing evidence, I find that the Claimant failed to prove \nby a preponderance of the evidence that he sustained a compensable injury to his right knee, during \nand in the course of his employment with the respondent-employer during his July 26, 2021, work-\nrelated slip and fall.  \nB. Remaining Issue      \n Because the Claimant failed to prove he sustained a compensable right knee injury on July \n26, 2021, the other issue pertaining to medical treatment for his right knee has been rendered moot \nand not discussed herein.  Accordingly, this claim for a right knee injury is respectfully denied and \ndismissed in its entirety. \n                                                   ORDER \nIn accordance with the findings of fact and conclusions of law set forth above, this claim \nis hereby respectfully denied and dismissed in its entirety.  \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          HON. CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE \n \n \n\nWhite- H108614 \n \n17","textLength":30230,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H108614 MICHAEL WHITE, EMPLOYEE CLAIMANT PULASKI COUNTY SPECIAL SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, WCT RESPONDENT OPINION FILED APRIL 27, 2023 Hearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Little Ro...","outcome":"denied","outcomeKeywords":["dismissed:2","denied:5"],"injuryKeywords":["knee","back"],"fetchedAt":"2026-05-19T23:08:58.313Z"},{"id":"alj-H106432-2023-04-26","awccNumber":"H106432","decisionDate":"2023-04-26","decisionYear":2023,"opinionType":"alj","claimantName":"Tashala Wright","employerName":"Tyson Foods, Inc","title":"WRIGHT VS. TYSON FOODS, INC. AWCC# H106432 APRIL 26, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WRIGHT_TASHALA_H106432_20230426.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WRIGHT_TASHALA_H106432_20230426.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H106432 \n \nTASHALA WRIGHT, EMPLOYEE       CLAIMANT \n \nTYSON FOODS, INC. EMPLOYER                RESPONDENT  \n \nTYSON FOODS/TYNET CORP., CARRIER/TPA                    RESPONDENTS \n \nOPINION FILED 26 APRIL 2023 \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on 26 April 2023. \n \nTashala Wright, pro se, failed to appear. \n \nMs.  Lauren  Scroggins,  Attorney-at-Law,  of  Little  Rock,  Arkansas,  appeared  on \nbehalf of the respondents. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  26  April 2023,  in  Little  Rock, \nArkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to Arkansas \nCode Annotated § 11-9-702 and/or Rule 099.13 of the Arkansas Workers’ Compensation Act.  \nThe  claim  involves  an  alleged  workplace  injury  occurring  on  or  about  May  12,  2021.  An \nemployer/employee relationship existed at the time. A First Report of Injury was filed on 20 \nAugust 2021. \n The  respondents  filed  their  first  Motion  to  Dismiss  for  Want  of  prosecution  on  4 \nOctober  2022.  That  motion  was  set  for  a  hearing  in  Pine  Bluff,  Arkansas,  on  8  December \n2022.  The claimant appeared to resist the motion, and the respondents withdrew that motion \nbased on the understanding that she would cooperate with the respondents’ efforts to manage \nher  claim.  The  transcript  from  that  hearing  reflects  that  Chief  ALJ  Fine  stressed  to  the \nclaimant the importance of cooperating with the respondents’ efforts to navigate her claim. \nShe was given notice of the availability of the Commission’s Legal Advisors Division and it \n\nWright- H106432 \n2 \n \nwas made clear that she had the right to seek counsel to assist in the prosecution of her claim. \nThe claimant expressed understanding of all of the above. \nSince that time, the claimant has refused to cooperate with the respondents’ counsel, \ndeclined  to  participate  in  discovery,  and  has  now  failed  to  appear  before  the  Commission. \nAdditionally,  she  failed  to  comply  with  an  Order  compelling  discovery  issued  by  the \nCommission on 2 February 2023. The motion at bar, again for want of prosecution, was filed \non 21 February 2023 and sent to the claimant at the address provided by her. No response \nwas tendered to the respondents’ counsel or the Commission. \n Based on the record, testimony, and evidence, I am compelled to find that the Motion \nto Dismiss should be granted due to the claimant’s lack of prosecution and the matter should \nbe dismissed without prejudice.  \nORDER \n \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice at this time.   \nSO ORDERED. \n \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2966,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H106432 TASHALA WRIGHT, EMPLOYEE CLAIMANT TYSON FOODS, INC. EMPLOYER RESPONDENT TYSON FOODS/TYNET CORP., CARRIER/TPA RESPONDENTS OPINION FILED 26 APRIL 2023 Hearing before Administrative Law Judge JayO. Howe in Little Rock, Pulaski County, Arkansas, on 26 A...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:08:52.048Z"},{"id":"alj-G106990-2023-04-25","awccNumber":"G106990","decisionDate":"2023-04-25","decisionYear":2023,"opinionType":"alj","claimantName":"Linda Michael","employerName":"Booneville School District","title":"MICHAEL VS. BOONEVILLE SCHOOL DISTRICT AWCC# G106990 APRIL 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MICHAEL_LINDA_G106990_20230425.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MICHAEL_LINDA_G106990_20230425.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G106990 \n \nLINDA MICHAEL, Employee CLAIMANT \n \nBOONEVILLE SCHOOL DISTRICT, Employer RESPONDENT NO. 1 \n \nARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT NO. 1 \n \nDEATH & PERMANENT & TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n \n \n OPINION FILED APRIL 25, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents No. 1 represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \nRespondent  No.  2  represented  by  DAVID  L.  PAKE,  Attorney  at  Law,  Little  Rock,  Arkansas, \nthough not appearing at hearing. \n \n STATEMENT OF THE CASE \n \n On  January  26,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on November 14, 2022, and a Pre-hearing \nOrder  was  filed  on  November  15,  2022.      A  copy  of  the  Pre-hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on June 28, \n2011. \n 3. The claimant sustained a compensable injury to her lower back on June 28, 2011. \n\nMichael – G106990 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $252.00  for  temporary  total  disability  benefits  and  $189.00  for  permanent  partial \ndisability benefits. \n 5. All prior opinions are final and res judicata. \n 6.  An  Agreed  Order  was  entered  on  September  2,  2014,  indicating  the  claimant’s \nentitlement to 42% wage loss disability above the 14% permanent impairment rating that she had \nat the time. \n 7.  Respondents  No.  1  accepted  and  paid  an  additional  1%  permanent  impairment  rating \nby Dr. Johnson. \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant is entitled to permanent and total disability benefits. \n 2. Whether Claimant’s attorney is entitled to an attorney’s fee. \n Claimant’s contentions are: \n“a. The Claimant contends that under the terms of the agreed Order \nthe  Claimant  reserved  the  right  to  seek  additional  permanent \ndisability  benefits  and  allege  permanent  and  total  disability  if  a \ndocumentable change in her permanent condition occurred. \n \nb.  The  Claimant  contends  that  subsequent  to  the  September  2, \n2014,   agreed   Order,   she   has   undergone   additional   surgery, \nreceived    an    additional    permanent    impairment    rating    and \nexperienced  a  worsening  in  her  condition  such  that  she  is  now \npermanently and totally disabled.” \n \n Respondents No. 1’s contentions are: \n \n“Respondents  contend  that  all  appropriate  benefits  are  being  paid \nwith regard to Claimant’s compensable lower back injury sustained \non  6/28/11.  Since  the  agreed  order  was  entered,  Claimant  had  an \nadditional  surgery  with  Dr.  Johnson  and  was  given  an  additional \n1%  impairment  rating.  Both  TTD  and  PPD  were  paid  after  the \norder  was  entered.  Claimant  has  not  had  change  in  circumstance \n\nMichael – G106990 \n \n-3- \nsuch  to  warrant  an  increase  in  permanency  beyond  what  has \npreviously been paid.” \n \n Respondent No. 2’s contentions are as follows: \n \n“The  Trust  Fund  defers  to  litigation  on  the  extent  of  disability \nissue.  It  has  not  controverted  benefits.  The  Trust  Fund  waives  its \nappearance  at  the  next  hearing.  The  last  report  provided  to  the \nTrust  Fund  was  the  5/9/2019  report  of  Dr.  Danny  Silver.  The \nexhibits   to   be   introduced   by   the   Claimant   show   numerous \nadditional  reports  from  that  date  until  8/23/22.  The  Fund  asks  the \nClaimant to provide those documents at this time.” \n \n The  claimant  in  this  matter  is  a  51-year-old  female  who  sustained  a  compensable  injury \nto  her  lower  back  on  June  28,  2011,  while  employed  by  the  respondent.  The  claimant  first \nunderwent  surgical  intervention  for  her  compensable  low  back  injury  on  April  10,  2013,  at  the \nhands  of  Dr.  Arthur  Johnson.  Dr.  Johnson  performed  a  lumbar  fusion  on  the  claimant  at  that \ntime.  \n Dr.  Johnson  authored  a  letter  on  February  28,  2014,  regarding  the  claimant  reaching \nmaximum  medical  improvement  and  her  anatomical  impairment  rating.  The  body  of  that  letter \nfollows: \nRe: Linda G. Michael \nTo Whom It May Concern: \n \nDue to medical reasons, Linda G. Michael has been given a rating. \n \nThe above captioned patient has been under my care and has been \nreleased from Neurosurgery as of 02/28/2014. \n \nThis   patient   has   now   reached   his   [sic]   Maximum   Medical \nImprovement.   He   [sic]   was   given   a   permanent   impairment \ndisability   rating   according   to   the   4\nth\n   edition   of   the   AMA \nGuidelines of 14% impairment to the body as a whole. \n \nThis is within a reasonable degree of medical certainty. \n \n\nMichael – G106990 \n \n-4- \n On  September  2,  2014,  the  parties  entered  into  an  Agreed  Order  found  at  Claimant’s \nExhibit  1,  pages  1-3  and  Respondent’s  Exhibit  2,  pages  1-3.  In  part,  that  Order  determined  the \nclaimant  to  be  entitled  to  42%  in  wage  loss  disability  above  the  14%  permanent  partial \nimpairment rating that was accepted by the respondent.  \n The  Order  also  ended  the  claimant’s  right  to  additional  wage  loss;  however,  the  Order \nallowed  for  the  claimant  to  seek  permanent  total  disability  benefits  given  an  increase  in \npermanency. Following is paragraph 5 of that September 2, 2014, Order: \n“The parties jointly agree that payment as outlined above fully and \nfinally extinguishes any and all claims Claimant may have to wage \nloss disability benefits associated with the injury she suffered on or \nabout  6/28/11,  or  at  any  other  time  while  working  for  Booneville \nSchool District. However, if there is a change in circumstance such \nto warrant an increase in permanency, Claimant is not barred from \nseeking permanent total disability benefits.” \n \n On October 5, 2017, the claimant was seen by Dr. Johnson with complaints of low back \npain. Following is a portion of that progress note: \nChief Complaint \nPatient presents with \n*LOW BACK PAIN \nHas  lbp  and  bil,  hip  and  legs  with  numbness.  Any  prolonged \nactivity causes pain. Has had physical therapy and did not help. Dr. \nSilver gave her an injection. \n \nSubjective \nLinda  G.  Michael  is  a  45  y.o.  year-old  female  seen  status  post \nlumbar  spinal  fusion  L4-5,  L5-S1,  S1-S2.  A  diagnosis  of  Left-\nsided  low  back  pain  with  sciatica,  sciatica  laterality  unspecified \nwas also pertinent to the visit, she is status post TLIF L4-5, L5-S1, \nS1-S2  that  was  done  on  March  10,  2013.  She  continues  to  have \nchronic  low  back  pain  that  has  not  improved  much  since  her  last \nvisit.  She  had  a  repeat  CT  scan  performed  that  showed  that  the \npedicle  screw  on  the  right  in  the  S2  vertebral  body  was  fractured \nalmost  at  midshaft.  She  returns  today  to  discuss  whether  she \nshould  have  the  screw  removed.  She  has  the  stinging  type  pain  in \nher  lower  back  and  right  leg.  Her  pain  is  still  a  level  where  it  is \n\nMichael – G106990 \n \n-5- \nunbearable at times. She is not able to continue to do her activities \nof daily living on a regular basis. Any type of activity increases her \npain.   She   is   also   depressed   and   is   seeing   a   counselor   for \ndepression. Part of her depression is secondary to her chronic pain \nsyndrome.  She  is  afraid  to  come  off  of  pain  medication  because \nshe has been on them for so long. She  was sent for evaluation for \nspinal  cord  stimulator  trial  but  was  denied  because  she  did  not  fit \nthe  psychological  profile  back  is  most  likely  to  benefit  from  the \nimplant.  She  still  wants  to  have  the  hardware  removed  in  hopes \nthat  it  will  improve  her  pain.  She  was  informed  that  it  is  very \nunlikely  that  the  pain  will  improve  with  removal  of  the  hardware \nas she is already fused at all 3 levels. \n \n*** \nX-ray of the lumbar spine: \nThe  hardware  is  in  good  alignment  and  position  from  all  3  levels \nwith the screws at the inferior level been fractured bilaterally. \n \nOther Studies Reviewed: \nI have reviewed the MRI of the lumbar spine from Prime Medical \nImaging   which   shows   mild   disc   degeneration   at   the   L3   L4 \n(assuming lumbarization of the S1) level with no significant canal \nstenosis  or  neuroforaminal  stenosis.  No  stenosis,  disc  herniations \nor neural foraminal stenosis is evident at any of the fused levels of \nthe lumbar spine. \n \nAssessment: \n1.  Hardware  failure  of  the  anterior  column  of  spine,  fractured \nscrews at S1. \n2. Status post lumbar spinal fusion L4-5, L5-S1, S1-S2. \n \nPlan: \nI  have  discussed  the  treatment  options  which  I  believe  include \nsurgery. \nNo orders of the defined types were placed in this encounter. \n \nBased on that discussion we are going to proceed with: \nRemoval  of  hardware  L3-S1.  I’m  very  doubtful  that  this  will \nimprove the patient’s clinical pain syndrome. She failed to respond \nto  a  3  level  lumbar  fusion.  She  is  completely  fused  at  all  3  levels \naccording  to  CT  and  therefore  not  having  any  movement  around \nthe areas where the fractured screws are at S1.  \nNo orders of the defined types were placed in this encounter. \n \n\nMichael – G106990 \n \n-6- \nI  have  explained  the  surgery  to  the  patient,  removal  of  hardware \nL3-S1, along with the risk and benefits. \n \n The  claimant  underwent  surgical  hardware  removal  at  the  hands  of  Dr.  Johnson  on \nDecember  5,  2017.  On  January  31,  2018,  the  claimant  was  seen  by  Dr.  Johnson’s  APN,  Janet \nCanada. Following is a portion of the progress note from that encounter: \nChief Complaint: \nPatient presents with \n*Follow up \nShe  came  in  walking  with  guarded  gait,  using  a  quadcane.  C/o \nlumbar and right leg leg pain. She has her lumbar dressing on with \nsome skin excoriation on the left lateral aspect of the incision. Her \nwound vac was placed on Friday and came on Tuesday. \n \nSubjective: \nMs.  Michael  is  a  46  y.o.  female  s/p  hwr  at  L3-S1  Dr.  Johnson  on \n12/5/2017.  Postoperative  recovery  has  been  complicated  by  a \nwound  infection/wound  dehiscence  requiring  a  wound  vac.  She  is \nbeing treated by Mercy wound clinic. The first two wound cultures \nhad no growth. No antibiotics taken since 1/10/2018 per husband. I \nhave been reviewing scanned pictures of the wound in EMR since \nreferred  to  the  wound  clinic  and  appears  to  be  healing  well  by \nsecondary intention.  \n \n1/31/2018:  She  presents  to  the  clinic  for  her  scheduled  visit  with \nc/o increased low back, right leg pain. C/o left lateral low back and \nmidline low back pain. She reports, “do not feel good.” She reports \nfever  and  chills  x5  days.  Unable  to  report  febrile  temps  though.  I \nam told by pt, case manager and husband that the wound vac “was \napplied  improperly”  and  caused  excoriation  of  the  skin  left  of \nmidline    lumbar    open    wound.    The    wound    vac    has    been \ndiscontinued  at  this  time.  She  is  feeling  “depressed.”  She  has \nbursts of crying during this visit. Denies bowel or bladder changes. \nThe  wound  culture  sent  by  Ms.  Davenport  APN  wound  clinic  is \nPositive, see below. \n \n*** \nAssessment: \n1. Staphylococcus aureus infection. \n2. Surgical wound dehiscence, sequela. \n3.   Open   wound   of   back,   unspecified   laterality,   subsequent \nencounter. \n\nMichael – G106990 \n \n-7- \n \nPlan: \nDressing changed. \nHH needs to be notified to replace dressing tomorrow and not wait \nuntil fri. \nSent patient for labs: Sed, Crp and cbc. \nCleocin restarted until Culture Sensitivity results available; change \nas needed. \nMessage sent to J. Davenport, wound clinic apn about patient. \n \n On  May  29,  2018,  Dr.  Johnson  authored  a  letter  regarding  an  increase  in  the  claimant’s \nimpairment and maximum medical improvement. The body of that letter follows: \nThe above captioned patient has been under my care and has been \nreleased from Neurosurgery as of 5/23/2018. \nThis    patient    has    now    reached    her    Maximum    Medical \nImprovement. \nShe was given a permanent impairment disability rating according \nto the 4\nth\n edition of the AMA guidelines of 1% impairment for the \nhardware removal surgery that was done 12/5/2017. \n \nThis is within a reasonable degree of medical certainty. \n \n The  claimant  has  asked  the  Commission  to  determine  whether  she  is  entitled  to \npermanent total disability benefits. Given the September 2, 2014, Order, which is now the law of \nthis  case,  the  claimant  must  have “a  change  in  circumstance  such  to  warrant  an  increase  in \npermanency” in order for the claimant to seek permanent total disability benefits.  \n The broken surgical screws referenced in  Dr. Johnson’s October 5, 2017,  progress note, \nsurgical  intervention  to  remove  the  claimant’s  surgical  hardware  on  December  5,  2017,  by  Dr. \nJohnson,  and  Dr.  Johnson’s  May  29,  2018,  letter  in  which  he  increased  the  claimant’s \nimpairment by 1% merit “a change in circumstance such to warrant an increase in permanency.” \nGiven  this  change  in  circumstance  and  increase  in  permanency,  the  claimant  is  able  to  pursue \npermanent total disability benefits. The claimant has asked the Commission to determine if she is \npermanently  totally  disabled.  Pursuant  to  A.C.A.  §  11-9-519(e)(1),  in  order  to  prove  that  she  is \n\nMichael – G106990 \n \n-8- \npermanently totally disabled, the claimant must prove that she is unable to earn any meaningful \nwages in the same or other employment due to her compensable injury. \n The claimant certainly had significant physical difficulties prior to the September 2, 2014 \nOrder,   which   determined   she   had   42%   wage   loss   disability   above   her   14%   anatomical \nimpairment. On March 14, 2014, the claimant underwent a functional capacity evaluation at the \nFunctional  Testing  Centers,  Inc.  That  report  is  found  Respondents’  Exhibit  1,  pages  31-47. \nFollowing is a portion of that evaluation. \nRELIABILITY AND CONSISTENCY OF EFFORT \nThe results of this evaluation indicates that a reliable effort was put \nforth,  with  53  of  54  consistency  measures  within  expected  limits. \nAnalysis of the data collected during this evaluation indicates that \nshe  did  put  forth  consistent  effort.  She  produced  normal  and \nconsistent grip and pinch strength with each hand with C.V.’s that \nindicate minimal variance with repeated trial resting. \n \n*** \nFUNCTIONAL LIMITATIONS \nMs. Michael demonstrated limitations with material handling with \na  demonstrated  occasional  lift/carry  of  up  to  20  lbs.  Ms.  Michael \ndemonstrated  poor  tolerance  to  all  activities  that  required  her  to \nwork  below  knuckle  level  as  she  completed  Stooping/Bending, \nKneeling  and  Crouching  all  at  the  Occasional  level.  Ms.  Michael \nalso demonstrated climbing stairs and Reaching Overhead with the \nRUE at the Occasional level. She does require changes in postural \nposition  throughout  the  workday  and  benefits  from  changes  from \nstanding  to  sitting  and  vice  versa  at  will.  Ms.  Michael  performed \nall testing with while wearing her post-op back brace. \n \n At the hearing in this matter two witnesses were called, the  claimant and her husband of \n33  years,  Mr.  Phillip  Michael.  Mr.  Michael  gave  testimony  on  direct  examination  about  the \nclaimant’s activities after the first surgery in 2013, and how those activities changed as follows: \nQ So  after  the  first  surgery,  what  kinds  of  physical  activities \ndo  you  recall  you  and  your  wife  engaging  in?  That  would  have \nbeen in 2014, 2015. \n \n\nMichael – G106990 \n \n-9- \nA I  mean  that  was  a  long  time  back,  but  not  a  whole  bunch, \njust  to  be  honest.  I  mean  she  usually  stayed  at  home  most  of  the \ntime.  She  got  out  more  than  what  she  does.  We  would  go  to \nWalmart or Sam’s, you know. \n \nQ So did there come a time when whatever activities she was \nengaging in became more limited? \n \nA Yeah, I mean – \n \nQ What happened? \n \nA She got another bolt snapped in her back and I couldn’t get \nher to hardly do nothing then. A lot of times she just stood up and \nshe may fall. \n \nQ So then did she undergo a second surgery by Dr. Johnson? \n \nA Yes, sir. \n \nQ How did she do after that? \n \nA Her limitations just went downhill bad. I can’t get her to \nhardly do anything. \n \nQ Compared  to  her  physical  activities  after  the  first  surgery \nwith  her  physical  activities  after  the  second  surgery,  tell  us  how \nyou would compare those activities. \n \nA After the first one she would at least try to take a bath and \nclean  herself  up,  you  know,  at  least  every  other  day.  Now  I  am \nlucky to get her to take a bath every six days. Some days it goes 12 \ndays  before  she  took  a  bath.  It  is  just  hard  to  get  her  out  of  her \nchair to do anything. \n \nMr. Michael also gave direct examination testimony about the claimant’s daily activities \nas follows: \nQ Are you around her on a regular basis now? \n \nA I stay there with her constantly. \n \n\nMichael – G106990 \n \n-10- \nQ What is  a typical day for her? Don’t tell me what she tells \nyou, but I mean you are around her constantly. Just give us an idea \nof what a typical day is now. \n \nA She  will  wake  up  anywhere  between  7:30  and  9:00.  I  will \nget  up  and  I  will  try  to  fix  her  something  to  eat  because  she  is \nhungry. I bring her food to her. She will take her medicine and the \nnext  thing  I  know  she  is  asleep  again  in  her  chair.  She  may  wake \nup, you know, 11:30 or 12:00 ready for lunch. I mean it’s not every \nday, but most of the days that is the way it goes. \n \nAnd then if I get her to go anywhere, it is usually between 1:00 and \n5:00 if I can get her out of the house. And other than that, she may \ngo back to bed at 6 o’clock, but it’s sometimes between 6:00 and \n8:30 she goes back to bed and stays in bed until the next morning. \n \n Mr. Michael also gave testimony about the claimant falling and about his observations of \nher physical abilities after the 2017 surgery as follows: \nQ And  you  said  something  about  her  falling.  Was  she  rarely \nfalling  before  2005  [sic]?  The  surgery  was  in  2007  [sic].  He \nreleased  her  in  2014.  So  after  he  released  her  in  2014,  was  she \nfalling at that point? \n \nA No, sir. \n \nQ So at what point did she start falling? \n \nA I  would  say  whenever  the  second  screw  busted  around \n2016. \n \nQ And then he did the surgery in 2017? \n \nA Correct. \n \nQ So  after  the  surgery  in  2017,  did  she  ever  appear  to  be  as \nactive as she was before 2017? \n \nA No, sir. It just got worse. \n \nQ And when you say got worse, what do you mean by that? \n \nA She just don’t do nothing. I mean to get her to do anything, \nI mean even to take a bath is— \n\nMichael – G106990 \n \n-11- \n \nQ Well, now, you said she doesn’t do anything. I mean she \nhas got to do something in order to get through the day. I mean she \nis here today, so she obviously does some walking and stuff, so be \nmore specific when you  say – when you  are trying to tell us what \ngoes on. \n \nA She will get up to go to the restroom. I have seen her make \nher  a  sandwich  or  something  that  was  pretty  simple  to  eat.  I  have \nseen  her  put  maybe  a  plate  in  the  dishwasher.  She  may  throw \nsomething in the washing machine if she ain’t got to bend over in a \nbasket to get it out. \n \nQ Have  you  seen  her  lift  anything  that  appeared  to  weigh \nmore than 10 pounds since 2017? \n \nA No, sir. \n \n Mr.  Michael  also  testified  about  traveling  with  the  claimant  to  see  family  in  Texas.  He \nstated that it was basically a 330-mile trip that takes them seven to seven- and one-half hours to \nmake due to the number of breaks the claimant needs due to sitting in the vehicle. Mr. Michael \ndid mention that in a time of emergency the trip could be made with the claimant in five to five- \nand one-half hours. \n The  claimant  was  called  on  direct  examination  and  gave  testimony  about  problems  she \nhad after her first surgery in 2013 and why she agreed to a second surgery in 2017 as follows: \nQ Ms.  Michael,  do  you  remember  the  first  surgery  that  Dr. \nJohnson performed on you? \n \nA Yes. \n \nQ Did  you  have  any  problems  during  the  recovery  from  that \nsurgery? \n \nA Yes, sir. \n \nQ  What? \n \nA I got an infection. \n\nMichael – G106990 \n \n-12- \n \nQ Would  you  have  agreed  to  a  second  surgery  if  you  didn’t \nfeel like you really needed it? \n \nA No, I would not have. \n \nQ So  what  caused  you  to  agree  to  the  second  surgery  that \nhappened in December of 2017? \n \nA Can you repeat that. \n \nQ Why  did  you  agree  to  have  the  second  surgery  that  Dr. \nJohnson did on your back in 2017? \n \nA Because I was falling. Those screws broke. \n \nQ Do  you  remember how  long  before  the  December  ’17 \nsurgery you started falling? \n \nA No, sir. \n \nQ  Okay. So whatever the medical records show, you are good \nwith that; is that right? \n \nA Yes, sir. \n \nQ So did the December ’17 surgery fix you? \n \nA No, sir. \n \nQ So what kind of problems are you still having as far as your \nback is concerned? \n \nA Sometimes  I  am  weak  in  my  legs  and  in  my  back.  I  fall \nsometimes. \n \nQ Now, you are on some kind of a walker today. \n \nA Yes, sir. \n \nQ Why are you using that? \n \nA Because I am weak in my back and my legs and I don’t \nwant to fall. \n \n\nMichael – G106990 \n \n-13- \nQ Now, you don’t use it all the time, do you? \n \nA No, sir. I use a cane sometimes. \n \nQ Okay.   But   you   had   to   come   from   your   car   into   the \ncourthouse and up the hallway and all that stuff today? \n \nA Yes, sir. \n \n The claimant was also questioned about her typical day on direct examination as follows: \nQ Tell  me  what  a  typical  day  is  for  you,  Ms.  Michael.  What \ntime do you get up? \n \nA It varies. Sometimes I get up early and then  I will go back \nto bed. I will take my medicine and go to bed. Sometimes I get up \nbetween 7:00 and 8:00. It just depends. \n \nQ And then what do you do? \n \nA I take my medicine. I go in there and sit down in the chair. I \nwill  get  me  probably  a  little  Twinkie  or  something,  a  cupcake  or \nsomething until my husband gets up and fixes breakfast. And then \nsometimes I go back to bed. I will go to the restroom or something. \n \nQ Do you know why you spend so much time laying down? \n \nA Yeah, I am depressed and I hurt. \n \n On cross examination the claimant was asked about her current out-of-home activities as \nfollows: \nQ Okay. All right. You told me in your recent deposition that \nif  your  husband  goes  to  the  grocery  store  or  Walmart,  you  try  to \ngo; is that right? \n \nA Yes, ma’am. \n \nQ And  that  you  do  that  maybe  four  times  a  week;  is  that \ncorrect? \n \nA Yes, ma’am. I just ride with him wherever he goes. I don’t \nknow how many exact times. \n \n\nMichael – G106990 \n \n-14- \nQ Okay. And you also told us in the deposition that you guys \ngo to the casino sometimes; is that right? \n \nA Yes, ma’am. \n \nQ Choctaw and one other in the local area? \n \nA Yes. \n \nQ You told me that you usually go three or four times a week; \nis that right? \n \nA Yes, ma’am. \n \nQ Usually  if  you  are  hitting,  you  would  stay  three  to  four \nhours, but you have stayed five hours before if you are getting a lot \nof money, is that right? \n \nA Yes, ma’am. \n \nQ Sometimes it’s shorter; is that right? \n \nA Yes, ma’am. \n \nQ You  also  told  me  you  stop  at  garage  sales  every  once  in  a \nwhile; is that correct? \n \nA Yes, ma’am. \n \nQ And  at  times  your  eight-year-old  granddaughter  comes  to \nvisit you guys, is that right? \n \nA Yes, ma’am. \n \nQ Is that the one that lives down in Texas? \n \nA Yes, ma’am. \n \nQ Okay.  And  your  husband  was  telling  us  earlier  that  you \nhave gone down there to visit your family; is that right? \n \nA Yes. \n \nQ At  the  time  of  your  deposition,  you  told  us  that  you  had \ngone down there to visit in August of ’21 when your daughter got \n\nMichael – G106990 \n \n-15- \nmarried. You went again at Christmas and two other times in ’22; \nis that correct? \n \nA I think that’s all. \n \nQ You think what? I’m sorry. \n \nA I think that is all. \n \nQ Okay.   And   one   of   the   times   last   year   was   your \ngranddaughter’s birthday in July and you  said  you  guys  went  to \nWalmart and Claire’s to get her something for her birthday; is that \nright? \n \nA Yes. \n \nQ You stayed about four or five days that trip? \n \nA Yes. \n \n On  direct  examination  the  claimant  was  asked  about  her  ability  to  work  including  her \nformer employment as a school janitor as follows: \nQ How  long  did  you  work  for  the  school  system  before  you \ngot hurt? \n \nA Eighteen and a half years, but they only got seventeen and a \nhalf years down. \n \nQ And what happened to your job there? \n \nA I don’t understand what you are asking me. \n \nQ Well, you are not working there anymore, are you? \n \nA No. \n \nQ There  is  a  document  in  the  exhibits  that  I  have  submitted \nthat says that the school district decided that you weren’t able to \nwork there anymore. \n \nA Yes. They fired me. \n \nQ After you got hurt? \n\nMichael – G106990 \n \n-16- \n \nA Yes. \n \nQ Do you know of any job that you could do for four hours a \nday in your current physical condition? \n \nA No. \n \nQ Do you know of any job that you could do for two hours a \nday in your current physical condition? \n \nA No. Cannot do it right. \n \nQ If it wasn’t for your back, would you have continued to \nwork for the school district? \n \nA Yes, sir. \n \nQ Did you like that job? \n \nA Yes, sir. \n \nQ  Do you wish you could work now? \n \nA Yes, sir. \n \n A  document  is  found  at  Claimant’s  Exhibit  3,  page  1,  which  is  a  letter  to  the  claimant \nfrom  the  superintendent  of  the  respondent’s  school  district.  The  letter,  in  part,  informs  the \nclaimant  that  the  superintendent  will  be  recommending  her  termination  from  employment  and \ngives the following reason:  \n“You have been absent from work due to a workers’ compensation \ninjury. We are advised that you have made the maximum possible \nmedical  recovery  from  your  injury,  but  due  to  your  permanent \nmedical   restrictions,   you   are   unable   to   perform   the   essential \nfunctions  of  the  job  of  janitor,  or  any  other  position  that  you  are \nqualified to fill.” \n \n On   cross   examination   the   claimant   was   questioned   about   the   letter   from   the \nsuperintendent and her short return to work in January of 2013, as follows: \n\nMichael – G106990 \n \n-17- \nQ You went back to work  for a short time. This was January \n23\nrd\n of ’13 when Dr. Silver was wanting you to try working a few \nhours a day. Do you remember that? \n \nA Maybe. \n \nQ Okay. \n \nA Are  you  talking  about  in  between  like  when  I  was  getting \nphysical therapy a little bit and then – yes. \n \nQ That  could  be.  And  at  that  time  you  had  restrictions  of  no \nbending,  no  stooping,  crawling,  climbing,  twisting,  kneeling  and \nyou  were  to  take  breaks  to  elevate  your  feet  and  stretch  at  will. \nDoes that sound right? \n \nA Yes, ma’am. That’s true. \n \nQ And  as  we  discussed  today,  the  school  district  couldn’t \naccommodate those permanent restrictions; could they? \n \nA No, ma’am. That’s why I laid on the couch sometimes. \n \nQ Your  attorney  introduced  a  letter  from  the  superintendent \ndated June 4\nth\n of ’14. That is when they had to let you go because \nthey couldn’t  accommodate  those  permanent  restrictions.  You \nunderstand that; correct? \n \nA (The witness nods her head up and down.) \n \nQ Is that a “yes”? \n \nA Yes, ma’am. I am sorry. \n \nQ And  that  was  done  before  we  entered  the  agreed  order \nwhere  you  received  a  large  sum of money from workers’ comp. \nDoes that sound correct? \n \nA Yes, ma’am. \n \n This permanent total disability case is different than most in that the parties entered into \nan agreement which became an Order on September 2, 2014, making it the law of this case. That \nOrder  set  the  claimant’s  wage  loss  disability  at  42%  and  set  the  claimant’s  permanent  partial \n\nMichael – G106990 \n \n-18- \nimpairment  rating  at  14%.  That  same  Order  extinguished  the  claimant’s  ability  to  have  any \nadditional  increase  in  wage  loss  disability  but  allowed  for  the  claimant  to  seek  permanent  total \ndisability “if  there  is  a  change  in  circumstance  such  to  warrant  an  increase  in  permanency.”  At \nthe time of the September 2, 2014 Order, the claimant’s permanent partial impairment rating was \n14%. By stipulation, the respondent has agreed that the claimant’s permanent partial impairment \nrating has increased by 1% from 14% to 15% as seen in Stipulation #7 of the Pre-hearing Order \nfound  at  Commission  Exhibit  1,  page  2.  Thus,  the  claimant’s  permanency  has  increased, \nallowing  the  claimant  to  have  the  Commission  determine  whether  she  is  entitled  to  permanent \ntotal disability benefits. \n Whether the claimant is permanently totally disabled must be looked at in the totality of \nthe  testimony  and  evidence  before  the  Commission,  not  just the  change  between  the  claimant’s \ncondition  before  and  after  the September  2,  2014  Order.  It  is  clear  that  the  claimant  was  not \npermanently totally disabled at that time. The central question is whether she is now permanently \ntotally disabled after considering everything both before and after the September 2, 2014 Order. \n The  claimant  has  a  ninth-grade  level  education  and  participated  in  special  education \nclasses when she was in  enrolled in school. A progress report dated July  10,  2014, authored by \nTanya  Rutherford  Owen,  Ph.D.  at  Rehabilitation  Services  found  at  Claimant’s  Exhibit  3,  pages \n3-7 states, “she took a GED test and scored at the ‘third-grade level’ and does not plan to enroll \nin the GED class at this time.” \n The  claimant’s  work  history  includes  working  for  a  year  at  Kentucky  Fried  Chicken  in \nhigh school, working as a housekeeper at a nursing home, working in a chicken processing plant, \nand  for  the  respondent  as  a  school  janitor  or  custodian.  The  claimant  credibly  testified  that  she \ncould no longer perform those jobs. I believe the claimant’s testimony to be credible. I base that \n\nMichael – G106990 \n \n-19- \nopinion  on  her  demeanor  at  the  in-person  hearing,  the  compatibility  of  her  testimony  with \nmedical records, and a high level of  reliability and consistency of effort given at her March 14, \n2014, functional capacity evaluation. \n In  addition  to  all  of  the  significant  physical  difficulties  the  claimant  had  prior  to  the \nSeptember  2,  2014  Order,  she  had  hardware  failure  that  caused  her  to  become  unsteady  on  her \nfeet  and  fall  often.  The  claimant  did  appear  to  sincerely  have  difficulty  ambulating  at  the  in-\nperson  hearing  in  this  matter.  The  claimant’s  condition  has  substantially  worsened  since  the \nSeptember  2,  2014  Order.  I  find  that  in  the  totality  of  the  testimony  and  evidence  before  the \nCommission,  that  the  claimant  is  able  to  prove  that  she  is  permanently  totally  disabled.  The \nclaimant  has  proven  by  a  preponderance  of  the evidence  that  she  is  unable  to  earn  any \nmeaningful wages in the same or other employment due to her compensable low back injury. \n Given  the  September  2,  2014  Order,  the  claimant  was  not  able  to  seek  permanent  total \ndisability benefits until there had been “a change in circumstance such to warrant an increase in \npermanency.”  That  increase  in  permanency  occurred  on  May  29,  2018,  when  Dr.  Johnson \nincreased  the  claimant’s  impairment  rating  by  1%.  Given  the  claimant’s  inability  to  claim \npermanent  total  disability  prior  to  this  increase  in  permanency,  I  find  that  permanent  total \ndisability  benefits  shall  begin  as  of  May  29,  2018,  the  date  of  the  increase  of  the  claimant’s \npermanency. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n \n\nMichael – G106990 \n \n-20- \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nNovember 14, 2022, and contained in a Pre-hearing Order filed November 15, 2022, are hereby \naccepted as fact. \n 2.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \npermanent total disability benefits. \n 3.  The  claimant  has  proven  by  a  preponderance  of  the  evidence  that  her  attorney  is \nentitled to an attorney’s fee in this matter. \n ORDER \n Respondents  No.  1  and  Respondent  No.  2  shall  pay  the  claimant  permanent  total \ndisability  benefits  as  set  forth  in  the  Arkansas  Workers’  Compensation  Act  and  at  the  rate  set \nforth  in  the  Pre-hearing  Order  filed  November  15,  2022,  more  specifically  Stipulation  #4. \nPermanent total disability benefits shall begin as of May 29, 2018. \n Respondent No. 1 shall pay to the claimant’s attorney the maximum statutory attorney’s \nfee  on  the  benefits  awarded  herein,  with  one-half  of  said  attorney’s  fee  to  be  paid  by  the \nrespondent in addition to such benefits and one-half of said attorney’s fee to be withheld by the \nrespondent from such benefits pursuant to Ark. Code Ann. § 11-9-715 (Repl. 2012). \n All sums herein accrued are payable in a lump sum and without discount and shall earn \ninterest at the legal rate until paid. \n IT IS SO ORDERED. \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":35057,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G106990 LINDA MICHAEL, Employee CLAIMANT BOONEVILLE SCHOOL DISTRICT, Employer RESPONDENT NO. 1 ARKANSAS SCHOOL BOARDS ASSN., Carrier RESPONDENT NO. 1 DEATH & PERMANENT & TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED APRIL 25, 2023 Hearing before ...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["back","lumbar","hip"],"fetchedAt":"2026-05-19T23:08:47.918Z"},{"id":"alj-H204237-2023-04-25","awccNumber":"H204237","decisionDate":"2023-04-25","decisionYear":2023,"opinionType":"alj","claimantName":"Willie Tillman","employerName":"Windsor Door, LLC","title":"TILLMAN VS. WINDSOR DOOR, LLC AWCC# H204237 APRIL 25, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TILLMAN_WILLIE_H204237_20230425.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TILLMAN_WILLIE_H204237_20230425.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H204237 \n \nWILLIE TILLMAN (Dec’d), EMPLOYEE       CLAIMANT \n \nWINDSOR DOOR, LLC, EMPLOYER             RESPONDENT  \n \nTRAVELERS INSURANCE COMPANY/  \nCARRIER/TPA             RESPONDENT    \n         \nOPINION FILED APRIL 25, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas, on April 25, 2023. \n \nClaimant is Pro Se and is deceased. \n \nRespondents are represented by Amy C. Markham, Attorney-at-Law, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  April  25,  2023,  in  Little  Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for failure  to  prosecute  pursuant  to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant passed away on December 27, 2022, and claimant’s \nattorney filed a motion to withdraw on January 16, 2023, with the Motion being granted \nby the Full Commission on January 20, 2023.  The claimant’s death was not related to \nthe  claimed workers’  compensation  injury.  An  AR-C form  had  been  filed  on  or  about \nSeptember  15,  2022,  alleging  that  the  claimant  had  sustained  a  work-related  injury  on \nApril 6, 2022.  More than six (6) months have passed since the claimant’s last actions in \nthis matter.  A request for the matter to be dismissed was made by the respondents on \nJanuary 9, 2023.   \n\nTILLMAN – H204237 \n \n2 \n \nA hearing was set for April 25, 2023, after proper notice to the parties, in regard to \nthe Motion to Dismiss.  At the time of the hearing, Amy Markham appeared on behalf of \nthe respondents and asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statement of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed with prejudice. \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed with prejudice at this time.   \nIT IS SO ORDERED: \n      ____________________________ \n       JAMES D. KENNEDY  \n       ADMINISTRATIVE LAW JUDGE","textLength":2402,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204237 WILLIE TILLMAN (Dec’d), EMPLOYEE CLAIMANT WINDSOR DOOR, LLC, EMPLOYER RESPONDENT TRAVELERS INSURANCE COMPANY/ CARRIER/TPA RESPONDENT OPINION FILED APRIL 25, 2023 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski County...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:08:49.981Z"},{"id":"alj-H204773-2023-04-24","awccNumber":"H204773","decisionDate":"2023-04-24","decisionYear":2023,"opinionType":"alj","claimantName":"Byron Willcutt","employerName":"Hytrol Conveyor Co., Inc","title":"WILLCUTT VS. HYTROL CONVEYOR CO., INC. AWCC# H204773 APRIL 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Willcutt_Byron_H204773_20230424.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Willcutt_Byron_H204773_20230424.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H204773 \n \n \nBYRON WILLCUTT, EMPLOYEE CLAIMANT \n \nHYTROL CONVEYOR CO., INC., \n SELF-INSURED EMPLOYER RESPONDENT \n \nCANNON COCHRAN MGMT. SVCS., INC., \n THIRD PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED APRIL 24, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on April 21, 2023, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Justin  Parkey,  Attorney  at  Law,  Jonesboro, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  April  21,  2023,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.    At \nRespondents’ request, the Commission’s file on the claim has been incorporated \nherein in its entirety by reference. \n The record reveals the following procedural history: \n Claimant,  through  then-counsel  Laura  Beth  York,  filed  a  Form  AR-C on \nJuly 1, 2022, asking for the full range of initial and additional benefits and alleging \n\nWILLCUTT – H204773 \n2 \n \nthat  he  injured “his  head,  right  shoulder,  and  other  whole  body”  when  he lost \nconsciousness and  fell  to  the  ground  at  work on March 16,  2022.   Per  the  Form \nAR-2  filed  on  July  13,  2022,  Respondents  accepted  the  claim  as  a  medical-only \none and paid benefits pursuant thereto. \n On September 6, 2022, York moved to withdraw from the case.  In an order \nentered  on  September  16,  2022,  the  Full  Commission  granted  the  motion  under \nAWCC Advisory 2003-2. \n The  record  reflects  that  no  further  action  took  place  on  this  claim  until \nJanuary  17,  2023,  when  Respondents  filed   the  instant  Motion  to   Dismiss.  \nTherein,  they  argued that dismissal of  the  claim  was  warranted  under  Ark.  Code \nAnn.  §  11-9-702(a)(4)  &  (d)  (Repl.  2012),  and  alleged  that  Claimant has  never \nmade a bona fide hearing request to the Commission.  On January 20, 2023, my \noffice  wrote  Claimant,  asking  for  a  response  to  the  motion  within 20  days.    This \ncertified letter was returned to my office, unclaimed, on February 21, 2023; but the \nfirst-class   letter   containing   the   same   correspondence,   sent   to   the   address \nsupplied  to  the  Commission  by  Claimant,  was  not  returned.    Nonetheless,  no \nresponse   from   him   was   forthcoming.      On March   2,   2023,   a   hearing   on \nRespondents’  motion  was  scheduled  for April  21,  2023,  at  1:30 p.m.  at  the \nCraighead  County  Courthouse  in  Jonesboro,  Arkansas.    The  Notice  of  Hearing \nwas  sent  to  Claimant  by  certified  and  first-class  mail  to  the  same  address  as \nbefore.    In  this  instance,  the  United  States  Postal  Service  was  unable  to  verify \nwhether  Claimant  had  claimed  the  certified  letter.    But  the  first-class  letter  was \n\nWILLCUTT – H204773 \n3 \n \nnever  returned.    Thus,  the  evidence  preponderates  that  the  notice  reached  its \nproper destination. \n The  hearing  proceeded  as  scheduled  on  April  21,  2023.    Again,  Claimant \nfailed to appear at the hearing.  But Respondents appeared through counsel and \nargued  for  dismissal  under  the  aforementioned  authorities  as  well  as  AWCC  R. \n099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The parties were provided reasonable notice of the  Motion to Dismiss and \nof the hearing thereon. \n3. Respondents  have  proven  by  a  preponderance  of  the  evidence  that \nClaimant has failed to prosecute his claim. \n4. Respondents  have  proven  by  a  preponderance  of  the  evidence  that  this \nclaim should be dismissed under AWCC R. 099.13. \n5. The Motion to Dismiss is hereby granted. \n6. This claim is hereby dismissed without prejudice. \n\nWILLCUTT – H204773 \n4 \n \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove  by  a  preponderance  of  the  evidence  that  this  claim  should  be  dismissed.  \nThis  standard  means  the  evidence  having  greater  weight  or  convincing  force.  \nBarre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the April 21, 2023, hearing to argue against its \ndismissal)  since  the  filing  of  his  Form  AR-C  on  July  1,  2022.    Thus,  dismissal  is \nwarranted  under  Rule  13.    Respondents  have  met  their  burden  of  proof  in  this \nmatter.    Because  of  this  finding,  it  is  unnecessary  to  address  the  application  of      \n§ 11-9-702 here. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \n\nWILLCUTT – H204773 \n5 \n \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629 S.W.2d 284 (1982)).  At the hearing, Respondents requested a dismissal with \nprejudice.    But  based  on  the  foregoing,  I  find  that  the  dismissal  of  this  claim \nshould be and hereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7307,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H204773 BYRON WILLCUTT, EMPLOYEE CLAIMANT HYTROL CONVEYOR CO., INC., SELF-INSURED EMPLOYER RESPONDENT CANNON COCHRAN MGMT. SVCS., INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED APRIL 24, 2023 Hearing before Chief Administrative Law Judge O. Milton F...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:08:43.712Z"},{"id":"alj-H003585-2023-04-24","awccNumber":"H003585","decisionDate":"2023-04-24","decisionYear":2023,"opinionType":"alj","claimantName":"Tina Walker","employerName":"Hino Motor Mfg. USA, Inc","title":"WALKER VS. HINO MOTOR MFG. USA, INC. AWCC# H003585 APRIL 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Walker_Tina_H003585_20230424.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Walker_Tina_H003585_20230424.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H003585 \n \n \nTINA WALKER, EMPLOYEE CLAIMANT \n \nHINO MOTOR MFG. USA, INC., \n EMPLOYER RESPONDENT \n \nSOMPO AMER. INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED APRIL 24, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on January 27, 2023, in \nMarion, Crittenden County, Arkansas. \n \nClaimant  represented  by  Mr.  Steven  R.  McNeely,  Attorney  at  Law,  Jacksonville, \nArkansas. \n \nRespondents  represented  by  Messrs.  Michael  E. and  Zachary  F. Ryburn,  Attorneys  at \nLaw, Little Rock, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n On January 27, 2023, the above-captioned claim was heard in Marion, Arkansas.  \nA  pre-hearing  conference  took  place  on  October  31,  2022.    The  Prehearing  Order \nentered  on  November  1,  2022,  pursuant  to  the  conference  was  admitted  without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed that  the \nstipulations, issues and respective contentions, as amended, were properly set forth in \nthe order. \n\nWALKER – H003585 \n \n2 \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit 1.  With an amendment of the third, they are the following, which I accept: \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The  employer/employee/carrier  relationship  existed  on  June  2,  2020, \nwhen Claimant sustained a compensable back injury. \n3. Respondents  accepted  this  rating  and  have  paid  Claimant  medical  and \nindemnity  benefits  pursuant  thereto,  with  the  latter  including  temporary \ntotal  disability  benefits  through  May  5,  2021, and  permanent  partial \ndisability  benefits  in  accordance  with  an  impairment  rating of five percent \n(5%)  to  the  body  as  a  whole  assigned  by Dr.  Laverne  Lovell  on  May  5, \n2021. \n[T. 3-4, 41] \nIssues \n At the hearing, the parties discussed the issues\n1\n set forth in Commission Exhibit \n1.  The following were litigated: \n1. What was Claimant’s average weekly wage? \n \n \n1\nRespondents  at  the  hearing,  without  objection  by  Claimant,  added  an  issue \nconcerning  whether  the  instant  claim,  or  a  portion  thereof,  is  barred  by  the  statute  of \nlimitations.  [T. 5-6]  However, when Claimant clarified later that she was not asking the \nCommission  in  this  proceeding  to  address  whether  she  had  sustained  a  compensable \ninjury  to  her  neck,  Respondents  elected  to  reserve  this  issue,  which  only  went  to  that \naspect of the claim.  [T. 42-44] \n\nWALKER – H003585 \n \n3 \n2. Whether Claimant is entitled to additional medical treatment. \n3. Whether   Claimant   is   entitled   to   additional   temporary   total   disability \nbenefits. \n4. Whether Claimant is entitled to wage loss disability benefits. \n5. Whether Claimant is entitled to a controverted attorney’s fee. \n All other issues have been reserved.  [T. 4-5] \nContentions \n The respective contentions of the parties, following amendments\n2\n at the hearing, \nare as follows: \nClaimant: \n1. Claimant  contends  that  she  suffered  a  compensable  back  injury  on  June \n2, 2020. \n2. Claimant  contends  that  she  is  entitled  to  additional  medical  treatment, \nspecifically  medial  branch  block  injections  recommended  by  Dr.  Michael \nScarbrough, along with pain management at Pain Centers of America. \n3. Claimant contends that in light of the recommended treatment, she is still \nin  her  healing  period  and  entitled  to  additional  temporary  total  disability \nbenefits from the date last paid until she is returned to work. \n4. All other issues are reserved. \n \n \n2\nBecause  of  the  reservation  of  the  statute  of  limitations  issue,  the  supplemental \ncontentions concerning it have been removed.  [T. 5-6, 44] \n\nWALKER – H003585 \n \n4 \nRespondents: \n The claim was accepted and all appropriate benefits have been paid.  The \nclaimant is not entitled to additional medical treatment in the form of pain \nmanagement.  She is not entitled to wage loss.  The claimant has reached \nmaximum medical improvement. \n[T. 5] \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe testimony of the claimant and to observe her demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann. §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. The preponderance  of  the  evidence  establishes  that  Claimant’s  average \nweekly wage was $609.33, with compensation rates of $406.00/$305.00. \n4. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is \nentitled to additional treatment of her compensable back injury in the form \npain management by Pain Treatment Centers of America. \n\nWALKER – H003585 \n \n5 \n5. Claimant  has not  proven  by a  preponderance  of  the evidence  that she  is \nentitled to additional treatment of her compensable back injury in the form \nmedial branch blocks by Dr. Michael Scarbrough. \n6. Claimant  has not  proven  by a  preponderance  of  the evidence  that she  is \nentitled to additional temporary total disability benefits for any period. \n7. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  she  is \nentitled to wage loss disability of five percent (5%). \n8. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  her \nattorney, the Hon. Steven R. McNeely, is entitled to a controverted fee on \nthe indemnity benefits awarded herein, pursuant to Ark. Code Ann. § 11-9-\n715 (Repl. 2012). \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the  prehearing  order  discussed  above,  admitted  into  evidence in \nthis case were the following:  Claimant’s Exhibit 1, a compilation of her medical records, \nconsisting  of  two  abstract/index  pages  and 43  numbered  pages  thereafter;  Claimant’s \nExhibit  2,  non-medical  records,  consisting  of  one  abstract/index  page  and  seven \nnumbered pages thereafter; and  Respondents’ Exhibit 1, the Form AR-C that was filed \nin connection with this claim on December 6, 2021, consisting of one page. \n\nWALKER – H003585 \n \n6 \nAdjudication \nA. Average Weekly Wage \n Introduction.    Claimant  has  argued  that  her  average  weekly  wage  for  the  time \nperiod   pertinent   to   this   claim   was   $654.00,   yielding   compensation   rates   of \n$437.00/$328.00.    On  the  other  hand,  Respondents  assert  that  the evidence  and \napplicable law establish that her compensation rates should be $355.00/$266.00.  [T. 4] \n Standards.    Arkansas  Code  Annotated  §  11-9-705(a)(3)  (Repl.  2012)  provides \nthat  “[w]hen  deciding  any  issue,  administrative  law  judges  .  .  .  shall  determine,  on  the \nbasis  of  the  record  as  a  whole,  whether  the  party  having  the  burden  of  proof  on  the \nissue   has   established   it   by   a   preponderance   of   the   evidence.”  The   standard \n“preponderance   of   the   evidence”   means   the   evidence   having   greater   weight   or \nconvincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415  (citing  Smith  v. \nMagnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947)). \n In  determining  the  average  weekly  wage  of  a  claimant,  Ark.  Code  Ann.  § 11-9-\n518 (Repl. 2012) gives the following guidance: \n(a)(1)  Compensation  shall  be  computed  on  the  average  weekly  wage \nearned  by the  employee  under  the  contract  of  hire  in  force  at the  time  of \nthe  accident  and  in  no  case  shall  be  computed  on  less  than  a  full-time \nworkweek in the employment. \n \n(2)  Where  the  injured  employee  was  working  on  a  piece  basis,  the \naverage weekly wage shall be determined by dividing the earnings  of the \nemployee  by  the  number  of  hours  required  to  earn  the  wages  during  the \nperiod not to exceed fifty-two (52) weeks preceding the week in which the \naccident  occurred  and  by  multiplying  this  hourly  wage  by  the  number  of \nhours in a full-time workweek in the employment. \n \n\nWALKER – H003585 \n \n7 \n(b)  Overtime  earnings  are  to  be  added  to  the  regular  weekly  wages  and \nshall  be  computed  by  dividing  the  overtime  earnings  by  the  number of \nweeks  worked  by  the  employee  in  the  same  employment  under  the \ncontract of hire in force at the time of the accident, not to exceed a period \nof fifty-two (52) weeks preceding the accident. \n \n(c)  If,  because  of  exceptional  circumstances,  the  average  weekly  wage \ncannot   be   fairly   and   justly   determined   by   the   above   formulas,   the \ncommission may determine the average weekly wage by a method that is \njust and fair to all parties concerned. \n \nThe term “wages” is defined in Ark. Code Ann. § 11-9-102(19) (Repl. 2012) in pertinent \npart as follows: \n“Wages”   means   the   money   rate   at   which   the   service   rendered   is \nrecompensed  under  the  contract  of  hiring  in  force  at  the  time  of  the \naccident,  including  the  reasonable  value  of  board,  rent,  housing,  lodging, \nor similar advantage received from the employer . . . . \n \n Discussion.      When   Respondents   cross-examined   Claimant,   the   following \nexchange took place: \nQ. At Hino you made about $14.00 an hour, does that sound right? \n \nA. No, I was $15.50 plus a dollar shift. \n \nQ. According to the Form W that you submitted in your exhibit, it looks \nlike you were paid $1,120.00 for 80 hours of work, does that sound \nright? \n \nA. It kind of sounds close. \n \nQ. If you do the math on that, is that $14.00 an hour? \n \nA. They offered me 15, so I don’t know where the 14 came from. \n \nQ. Are you incorporating your overtime to get to that $15.00 an hour? \n \nA. I didn’t  know  if  that’s  what  they  were  required,  I  mean,  you  know, \nonce they added in.  I don’t know.  I’m not sure but I thought that’s \nwhat it was. \n\nWALKER – H003585 \n \n8 \n \nQ. Okay.    Your  Form  [AR-]W  seems  to  indicate  that  you  made \n$14.00 an hour with an additional $1,627.75 in overtime during \nthat period.  Does that sound about right? \n \nA. It’s [sic] sounds almost right, yeah. \n \n[T. 22-23]  (Emphasis added) \n At the outset, I note that the Form AR-W that is in evidence does not comply with \nthe  law  regarding  how  Claimant’s  wages  for  the  52  weeks  preceding  her  stipulated \ncompensable  injury  are  to  be  set  forth.    The  entries  thereon  are  not  broken  out  by \nweeks, as they should be.  And “Weeks” (which, again, is a misnomer because they do \nnot  reference  individual  weeks)  8,  10,  13,  and  18  on  the  form  list  more  than  40  hours \nworked, but identify it as all “[s]traight [t]ime.”  For example, the “Week 13” line reflects \nthat Claimant worked 83.75 hours in a 10-day (i.e., two-week) period with no overtime, \neven  though  there  had  to  be  3.75  hours  of  overtime  allocated  between  those  two \nweeks.    After  due  consideration,  I  am  giving  no  weight  to  this  form,  except  for its \nreflecting that she worked for Respondent Hino during 33 weeks\n3\n preceding the injury at \nissue. \n \n \n3\nPer  Buxton  v.  City  of Nashville, 132  Ark.  511, 201  S.W. 512  (1918),  I  can take \njudicial notice of the contents of a calendar.  According to the 2019 and 2020 calendars, \n42  weeks  elapsed  between  Claimant’s  start  date  of  August  12,  2019,  at  Respondent \nHino (per her testimony) and her stipulated injury date of June 2, 2020.  Consequently, I \ncan only  conclude  that  Claimant  did  not  work  at  all  during nine  weeks  of her tenure  at \nHino,  since  they  are  not  reflected  on  the  Form  AR-W  in  evidence.  Those  nine  weeks \nare excluded from the calculation in § 11-9-518(b), which takes into account only weeks \n“worked”—not “employed.”  The statute  must  be  strictly  construed,  in  accordance  with \nArk. Code Ann. § 11-9-704(c)(3) (Repl. 2012).  See Duke v. Regis Hairstylists, 55 Ark. \nApp. 327, 935 S.W.2d 600 (1996).  “Strict construction means narrow construction and \n\nWALKER – H003585 \n \n9 \n That said, Claimant testified that it was “almost right” that she earned $14.00 per \nhour  during  the  period  in  question,  and  $1,627.75  in  overtime.    I  credit  this.  The \ndetermination  of  a  witness’  credibility  and  how  much  weight  to accord  to  that  person’s \ntestimony  are  solely  up  to  the  Commission.   White  v.  Gregg  Agricultural  Ent.,  72  Ark. \nApp.  309,  37  S.W.3d  649  (2001).    The  Commission  must  sort  through  conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.  Id. \n With that to build on, Claimant’s average weekly wage calculation is thus: \n$14.00 x 40 hours =  $560.00 \n+ \n$1,627.75 ÷33 weeks =      $49.33 \n_____________________________ \n     $609.33 \n \nThe preponderance  of  the  evidence  thus  establishes  that  Claimant’s  average  weekly \nwage was $609.33, entitling her to compensation rates of $406.00/$305.00. \n B. Additional Treatment \n Introduction.    Again,  as  the  parties  have  stipulated,  Claimant  sustained  a \ncompensable  injury  to  her  back.    In  this  action,  she  is  seeking,  inter  alia,  additional \ntreatment  of  this  injury  in  the  forms  of  medial  branch  block  injections  and  pain \n \nrequires  that  nothing  be  taken  as  intended  that  is  not  clearly  expressed.”   Hapney  v. \nRheem Mfg. Co., 341 Ark. 548, 26 S.W.3d 771 (2000). \n\nWALKER – H003585 \n \n10 \nmanagement.  Respondents  have  argued  that  they  are  not  responsible  for  this \ntreatment. \n Standards.    Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012) states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe  necessary  in  connection  with  the  injury  received  by  the  employee.   See  Wal-Mart \nStores,  Inc.  v.  Brown,  82  Ark.  App.  600,  120  S.W.3d  153  (2003).    But  employers  are \nliable only for such treatment and services as are deemed necessary for the treatment \nof  the claimant’s  injury.   DeBoard  v.  Colson  Co.,  20  Ark.  App.  166,  725  S.W.2d  857 \n(1987).    The  claimant  must  prove  by  a  preponderance  of  the  evidence  that  medical \ntreatment  is  reasonable  and  necessary  for  the  treatment  of  a  compensable  injury.  \nBrown, supra; Geo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218 \n(2000).    The  standard  “preponderance  of  the  evidence”  means  the  evidence  having \ngreater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith  v.  Magnet  Cove  Barium  Corp.,  212  Ark.  491,  206  S.W.2d  442  (1947).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional  treatment,  even  after  the  healing  period  has  ended,  if  said  treatment  is \ngeared toward management of the injury.  See Patchell v. Wal-Mart Stores, Inc., 86 Ark. \nApp.  230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200, \n649 S.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing \n\nWALKER – H003585 \n \n11 \nthe  nature  and  extent  of  the  compensable  injury,  reducing  or  alleviating  symptoms \nresulting  from  the  compensable  injury,  maintaining  the  level  of  healing  achieved,  or \npreventing  further  deterioration  of  the  damage  produced  by  the  compensable  injury.  \nJordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra.  A \nclaimant is not required to furnish objective medical evidence of her continued need for \nmedical  treatment.   Castleberry  v.  Elite  Lamp  Co.,  69  Ark.  App.  359,  13  S.W.3d  211 \n(2000). \n Testimony.   Claimant  is  a  high  school  graduate.    In  addition,  she  has  attended \ntwo semesters at East Arkansas Community College and three at Strayer University.  At \nthe  former,  she  studied  nursing  and  occupation  therapy;  at  the  latter,  the  focus  of  her \nstudy  was  business.    [T.  25-26]    Asked  how  her  stipulated  compensable  back  injury \nhappened on June 2, 2020, she related: \nWell,  we  came on  board  after  the  first  shift,  cause I  worked  second  shift.  \nAnd we got on the line, the team lead told me, well, we’re going to have to \nlift the pallets.”  I said, “For what?”  [The team lead responded:]  “Until we \ncan  get  somebody  over  here.”  So  I  told  her, “Wow,  those  pallets  are \nheavy,” you know, “I’m going to lift all night long,” you know, because the \npallets  that  these  parts  go  onto  after  they  are  made  and  after  they’re \nformed, they’re really heavy.  And they have a machine that you take your \nhand and lay it up against and the pallet comes to you, which the pallet is \nnever lifted up no type of way, because the machine slides it down to you \nonto the little belt, so you’re never having to lift it up.  Well, that night I had \nto lift it up.  I lifted it up till about 3:30 that night, after I told my team lead at \n12:00 that, you know, my back, I was feeling something in my back, cause \nyou know, I had been lifting since I got there at 6:00.  And she said, “Well,” \nyou  know, “we’ve got to get  this  production out.”  I  said, “You  should  call \nMr. Frye.”  Mr. Frye was the supervisor over all of us.  She didn’t do that, \nshe just told me to just go back to the line and continue to do it . . . About \n5:15, between 5:00 and 5:15 I got off of work.  I talked to Mr. Frye before I \nleft.    I  said, “Mr.  Frye,  I’m  hurting  so  bad,”  you  know  what  I’m  saying, “I \ncan’t hardly,” you know, I’m saying go to my time clock or whatever. \n\nWALKER – H003585 \n \n12 \n \n[T.  12-14]  After  the  injury  was  reported,  Claimant  was  sent  to  the  plant  nurse,  Chris \nGross. \nThe following exchanged occurred: \nQ. Now, what kind of physical problems were you having at this point? \n \nA. At that point I was having, it was my neck and it was the lower part \nof my back.  And you know, he [Gross] just, like I said, he examined \nme, gave me a  couple  of  shots,  gave  me  some  pills,  and  told  me, \n“I’m gonna take you off,” so he did.” \n \n[T.  16]  Claimant  treated  with  Gross  a  number  of  times.    These  visits  included  hip \ninjections.    Eventually,  she  was  sent  for  an  MRI.    This  occurred  on  October  13,  2020.  \n[T. 16-17]  In describing the condition of her back at this time, Claimant stated: \nGetting up in the morning, in back, going to bed at night, back.  I’m just still \nhaving  the  same  problems.    I  don’t  see  where  nothing  that  they  have \ndone, no medication that they have given even worked, just even worked. \n \n[T. 17] \n From there, Claimant went to Dr. LaVerne Lovell.  But while Lovell recommended \nsurgery to address the condition of her back, Claimant did not want to go through with it.  \nShe  feared  that  the  operation  would  make  her  worse  instead  of  better.    [T.  17-18]  \nThereafter, Claimant went to a pain management doctor.  But still, her condition did not \nimprove.  [T. 18]  The following exchange took place: \nQ. Then  after  that  you  went  and  got  treatment  on  your  own  with  the \nPain  Treatment  Center  of  America.    Now  did  that  treatment  help \nyou any? \n \nA. They’re  still  working  with  me.    This  is  something  that  my  primary \ndoctor  wanted  me  to  see,  because  my  blood  pressure  stayed  up \n\nWALKER – H003585 \n \n13 \ntoo high, she said, and it’s all about pain.  That’s why she sent me \nover there to the new pain doctor. \n \n[T. 19] \n Claimant  denied  having  any  pre-existing  back  problems.    She  pointed  out  that \nprior  to  beginning  work  at  Hino,  she  had  to  pass  a  physical  examination.    It was  her \ntestimony that since her stipulated injury, she has not been involved in any accident.    [T. \n21-22] \n On   cross-examination,   Claimant   stated   that   Dr.   Lovell   assigned   her   an \nimpairment rating of five percent (5%).  She acknowledged that she refused to proceed \nwith  the  back  surgery  because  of,  inter  alia,  the  risks  of  it  that  the  doctor  disclosed  to \nher.  [T. 22-23] \n When asked whether the pain medication that she is currently taking is working, \nClaimant  simply  responded, “No.”  That  being  the  case,  she  was  questioned  why  she \nwas  still  using  it.    Her  reply  was  that  her  physician  has  recently  doubled  her  allowed \ndosage,  and  had  scheduled  her  for  a  follow-up  visit  to  look  into  the  matter  further.  \nNotwithstanding this, Claimant volunteered her assessment of the situation:  “So it’s just \na  mess.”  [T.  29-30]  Later,  she  described  her  back  pain  as “unbearable  sometimes,” \nand explained  that  the  benefit  of  the  increased  dosage  has  helped  in  the  sense  that  it \nhelps  her  sleep  because “you  don’t  feel  no  pain  when  you  sleep.”  In  her  opinion,  her \ncondition has worsened since the injury occurred.  [T. 33] \n Under  questioning  by the  Commission,  Claimant  testified  that  along  with medial \nbranch block injections, she is seeking “[w]hatever the physicians that I go to, whatever \n\nWALKER – H003585 \n \n14 \nthey suggest that can help I’m willing to accept . . . .”  But she confirmed that this does \nnot  include  the  surgery  proposed  by  Lovell,  because  she  does  not  wish  to  undergo  it.  \n[T. 39] \n Medical  records.    The  records  in  evidence  reflect  that  Claimant  underwent  a \nlumbar x-ray on June 9, 2020, that reflected only “[m]ild arthritic changes involving L2-\nL5 [and] [n]o acute abnormality of the spine . . . .”  She was sent for physical therapy.  A \nlumbar  MRI  that  took  place  on  October  13,  2020,  showed,  inter  alia, “[a]  small  left \nparacentral disc protrusion” at L5-S1. \n After Claimant saw Dr. Lovell on January 12, 2021, he wrote: \nHISTORY:    Ms.  Tina  Walker  is  a  54-year-old  lady  referred  by  Workers’ \nCompensation  for  an  injury  that  occurred  on  June  2,  2020.    The  patient \nwas at her workplace leaning over picking up a little platform of some sort \no[f] car parts in a box that strained her low back and giving her left-sided \nradicular  pain.    The  item  she  was  lifting  weighs  between  20  and  25 \npounds.  She indicated this to the workplace.  She was seen several times \nby local physicians and had physical therapy as well.  An MRI scan of the \nlumbar spine was completed. \n \nReview  of  MRI  of  the  lumbar  spine  shows  stenosis  at  L3-4  moderate  in \nnature that is unrelated to her work injury.  She has a small left-sided L5-\nS1  disc  herniation  that  does  compress  the  S1  root  up  against  the \nfacet  joint  on  that  left  side.    This is  very  likely  the  cause  of  the \nsymptoms which she complains of today. \n \n. . . \n \nPlan: \nI have gone over the MRI scan with the patient in detail.  I have explained \nto her that the lumbar stenosis at L3-4 is not what I believe is symptomatic \nand is not related to her work injury but more than likely, she will progress \nat that site and sometime in the future need to have someone address that \nfor her. \n \n\nWALKER – H003585 \n \n15 \nI showed her the left-sided L5-S1 disc herniation and used a model as well \nto  talk  to  her  about  the  condition  she  has.    I  have  offered  her  a  lumbar \nepidural  steroid  injection  and  talked  to  her  about  a  left-sided  L5-S1 \nmicrodiscectomy.    I  went  over  the  risks,  complications  and  recovery  of  a \nmicrodiscectomy,  which  include  but  are  not  limited  to  death,  paralysis, \nbleeding, infection, nerve root injury with residual weakness, residual neck \npain, arm pain, paresthesias, bone graft migration, and recurrent laryngeal \nnerve  palsy.  The  case  manager  and  the  patient  will  make  contact  with \neach  other  after  the  Thanksgiving  holiday  which  is  coming  up  and  the \npatient  will  relay  whether  or  not  she  would  like  to  try  steroid  injection  or \nproceed on with surgical intervention.  We will wait to hear from them and \nif she wants to have either one, we will get that scheduled for her.  She will \nstay in an off work status. \n \n(Emphasis added) \n On  April  29,  2021,  Claimant  underwent  a  functional  capacity  evaluation.    The \nreport thereof reflects that she gave an inconsistent and unreliable effort, with only 15 of \n45  consistency  measures  within  expected  limits.    Because  of  this,  the  evaluator  found \nthat  she  demonstrated  the  ability  to  perform  work “in  at  least  the  SEDENTARY \nclassification of work . . . .\" \n On May 6, 2020, Dr. Lovell wrote that Claimant had declined surgery to address \nher  back  injury.    He  assigned  her  permanent  lifting  restrictions  of  50  pounds  on  an \noccasional basis and 25 pounds on a frequent basis.  Also, he gave her an impairment \nrating  of  five  percent  (5%)  to  the  body  as  a  whole.    In  response  to  an  inquiry  by \nRespondents’  counsel,  Dr.  Lovell  on  May  20,  2021,  wrote  that  Claimant  reached \nmaximum  medical  improvement  on  May  6,  2021.    He  added  that  while  she  is  not  in \nneed of future treatment, she does have permanent restrictions as outlined above. \n Claimant returned to Lovell on August 24, 2021.  The report of that visit includes \nthe following: \n\nWALKER – H003585 \n \n16 \nHISTORY:    Ms.  Walker  returns  for  follow-up.    I  released  her  with  a  PPI \nrating  and  permanent  restrictions  three  months  ago.    The  patient  is  sent \nback today because she was evidently complaining to her adjuster that no \none was managing her pain.  Prior to coming to see me, she was seen by \nan  advanced  practice  nurse  named  Christopher  Gross  over  in  West \nMemphis.    When  she  came  to  see  me,  her  relationship  with  him  was \nterminated.  The patient desires to return back to him for longer-term pain \nmanagement.  I  have  discussed  with  the  patient  once  again,  whether  [or] \nnot  she  is  interested  in  surgery  and  her  response  is  “I  am  thinking  about \nit.” \n \n. . . \n \nThe patient continues to complain of left sciatica and generalized low back \nand hip pains bilaterally.  She has known left-sided L5-S1 disc herniation, \nand  L3-4  stenosis  which  I  have  counseled  her  about  and  went  over  the \nsurgical intervention, including risks and complications. \n \n. . . \n \nPlan: \nThe patient appears not interested in any treatment from me today so I will \ngive her a prescription of some Lortab and refer her back to Mr. Gross for \nlong-term  pain  management.    No  follow-up  is  given  to  this  patient  at  this \ntime as I have nothing further to offer her. \n \nADDENDUM:   Ms. Walker evidently misconstrued the fact that Mr.  Gross \nwas a pain management doctor as he does not do that.  We will, therefore, \nrefer  the  patient  back  to  her  adjuster  to  allow  them  to  seek  [a]  pain \nmanagement doctor near the patient’s home that will manage her. \n \n From  there,  Claimant  began  undergoing  pain  management  at  Pain  Treatment \nCenters  of  America.    When  she  first  presented  there  on  June  14,  2022,  she  rated  her \npain as 5/10 on average and 9/10 at its most severe.  She incorrectly informed treating \npersonnel  that  she  had  not  had “any  imaging  done.”  While  her  hands,  knees,  and \ncervical  spine  were  also  identified  as  potential  problem  areas,  the  treatment  included \nher  lumbosacral  spine.    When  Claimant  went  back  there  on  August  18,  2022,  Dr.  Ted \n\nWALKER – H003585 \n \n17 \nShields  wrote  that the  prescriptions  of,  inter  alia,  Hydrocodone,  were  to  address \nconditions  that  included  the  following:    chronic  pain  syndrome,  facet  arthritis  of  lumbar \nregion, and lumbar spondylosis. \n Discussion.  In reviewing the medical records, I note that Dr. Lovell, in response \nto  Claimant’s  request  for  pain  management,  referred  her  to  Gross,  the  plant  manager.  \nThe  last  time  he  saw  her,  he  wrote:   “We  will,  therefore,  refer  the  patient  back  to  her \nadjuster to allow them to seek [a] pain management doctor near the patient’s home that \nwill manage her.”  Lovell did not opine that such treatment was unwarranted, but instead \nacted to accommodate the request on August 24, 2021.  This was three months after he \ninformed  Respondents’  counsel  that  Claimant  needed  no  additional  treatment  of  her \nback.  The implication is clear that the doctor reversed course from his earlier opinion.  I \ncredit this.   The Commission is authorized to accept or reject a medical  opinion and is \nauthorized  to  determine  its  medical  soundness  and  probative value.   Poulan  Weed \nEater  v.  Marshall,  79  Ark.  App.  129,  84  S.W.3d  878  (2002); Green  Bay  Packing  v. \nBartlett,  67  Ark.  App.  332,  999  S.W.2d  692  (1999).  Similarly,  I  credit  Dr.  Shields \nregarding the need for administration of medications as part of her pain management. \n The evidence shows that as a result of  Claimant’s stipulated compensable back \ninjury, she still suffers from pain.  She has proven by a preponderance of the evidence \nthat  the pain  management treatment  she  is  undergoing  at  Pain  Treatment  Centers  of \nAmerica is reasonable and necessary, in that it is geared toward reducing or alleviating \nthe  symptoms  resulting  from her  compensable  injury,  and  that  it  is  causally  related  to \nthat injury.  On the other hand, while Claimant has also contended that she is entitled to \n\nWALKER – H003585 \n \n18 \nadditional treatment in the form of medial branch blocks by Dr. Michael Scarbrough, the \nrecords  of  Scarbrough  are  not  in  evidence  to  show,  among  other  things,  that he  has \nrecommended them.  Thus, I am unable to find that she is entitled to these injections by \nhim. \nC. Additional Temporary Total Disability Benefits \n Introduction.  The parties have stipulated that Claimant was paid temporary total \ndisability benefits regarding her compensable back injury through May 5, 2021.  Herein, \nshe is asking that she be awarded additional benefits  of this type “until she is returned \nto work.”  Respondents dispute this. \n Standards.    The  compensable  injury  to  Claimant’s back  is  unscheduled.    See \nArk.  Code  Ann.  §  11-9-521  (Repl.  2012).    An  employee  who  suffers  a  compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \nwithin the healing period in which he has suffered a total incapacity to earn wages.  Ark. \nState  Hwy.  &  Transp. Dept.  v.  Breshears,  272  Ark. 244, 613  S.W.2d  392  (1981).    The \nhealing  period  ends  when  the  underlying  condition  causing  the  disability  has  become \nstable  and  nothing  further  in  the  way  of  treatment  will  improve  that  condition.   Mad \nButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant must \ndemonstrate that the disability lasted more than seven days.  Id. § 11-9-501(a)(1). \n Evidence.  Claimant  has  undergone  some  training  in  the  areas  of  nursing  and \nphlebotomy.  [T. 8]  Asked to describe her work experience pre-Hino, she related: \nI  did  a  lot  of  sitting,  you  know,  for  the  elderly,  sitting.    It’s  like  classified \nunder  the  nurse  aide,  you  know,  grounds,  you  know,  just  sitting  with  the \nelderly,  you  know  what  I’m  saying?    Like  reading  mail  to  them,  getting  a \n\nWALKER – H003585 \n \n19 \nmeal,  and  different  things  like  that,  nothing  really  hard,  just  a  sitter.    It’s \nalmost like a companion to her. \n \n[T. 10] \n She worked in this position from 2011 until she was hired by Hino in 2019.  When \nshe began work there, Claimant first performed the following tasks: \n[B]efore I got on the line, I was taking parts out of the box which went to a \ngate, taking the parts out of the box, putting them on the conveyor where \nthey’ll go around, you know, cause they were making, you know, the rear \nend part of the trucks for the trucks. \n \n[T.  11]    Later,  she  was  transferred  to  the  assembly  line.    This  job  had  multiple \ncomponents: \nI  had  eight  different  little  jobs  that  I  do  from  one  side  to  the \nnext.  I’d take and I’d put the little seals, rubber seals into the \npart,  and  then  it  starts  to  go around,  and  then  I might put a \nscrew  in  and  it’ll  come  around,  then  where  we  have  this  lift \nthe  part  up  off  the  belt,  put  it  onto  a  pallet,  rivet  it  down  on \nboth ends. \n \n[T. 11-12] \n According  to  Claimant,  when  she  first  began  treating  for  her  back  injury  with \nNurse Gross, he took her off of work.  She stated that she never went back to work at \nRespondent Hino since that time.  [T. 16]  The following exchange took place: \nQ. Now,  Dr.  Lovell  released  you  from  his  care  [o]n  May  6  of  2021.  \nNow,  did  you  try  to  go  back  to  work  or  talk  to  anybody  at  Hino’s \nabout going back to work? \n \nA. I did, I talked to Linda. \n \nQ. Linda who? \n \nA. Linda McDoniel. \n \n\nWALKER – H003585 \n \n20 \nQ. And she worked with Hino? \n \nA. Yes. \n \nQ. What was the nature of that conversation? \n \nA. The nature of that conversation was, “Linda, when are they going to \ndecide  what  they’re  gonna  do,  and  are  they  gonna  allow  me,  with \neverything that they’ve got going on, but will they let me come back \nto work?  She said to me, “Are they releasing you [to] full [duty], or \nare you on restrictions?”  I said to her, “Lovell said I was gonna be \non  restrictions.”  So  she  told  me  I  couldn’t  come  back  with \nrestrictions, because they didn’t have any type of position that, you \nknow,  I  could  do  on  restrictions,  so  that’s  why  I  didn’t  go  back.  \nThat’s why I haven’t gone back. \n \nQ. So have you been back to work anywhere since then? \n \nA. No. \n \n[T. 19-20]  No one has taken her off work since Dr. Lovell released her  from treatment.  \n[T. 24] \n Discussion.  As the   parties   have   stipulated,   Respondents   paid   Claimant \ntemporary total disability benefits through May 5, 2021.  Under Poulan Weed Eater and \nGreen  Bay  Packing,  supra, I  am  crediting  Dr.  Lovell’s  opinion  that  Claimant  reached \nmaximum medical improvement as of May 6, 2021.  The evidence establishes that she \nreached the end of her healing period on that date.  Consequently, she has not proven \nher entitlement to additional temporary total disability benefits. \nD. Wage Loss Disability Benefits \n Introduction.    In  addition,  Claimant  has  asserted  that  her  injury  merits  her  wage \nloss disability benefits.  Respondents oppose this. \n\nWALKER – H003585 \n \n21 \n Standards.  To repeat, Claimant’s June 2, 2020, compensable injury to her back \nis unscheduled.  Cf. Ark. Code Ann. § 11-9-521 (Repl. 2012).  Her entitlement to wage \nloss disability benefits is controlled by § 11-9-522(b)(1), which states: \nIn considering claims for permanent partial disability  benefits in excess of \nthe   employee’s   percentage   of   permanent   physical   impairment,   the \nWorkers’ Compensation Commission may take into account, in addition to \nthe  percentage  of  permanent  physical  impairment,  such  factors  as  the \nemployee’s    age,    education,    work    experience,    and   other   matters \nreasonably expected to affect his or her future earning capacity. \n \nSee  Curry  v.  Franklin  Elec.,  32  Ark.  App.  168,  798  S.W.2d  130  (1990).   Such  “other \nmatters” include motivation, post-injury income, credibility, demeanor, and a multitude of \nother  factors.   Id.; Glass  v.  Edens,  233  Ark.  786,  346  S.W.2d  685  (1961).    As  the \nArkansas  Court  of  Appeals  noted  in Hixon  v.  Baptist  Health,  2010  Ark.  App.  413,  375 \nS.W.3d  690,  “there  is  no  exact  formula  for  determining  wage  loss  .  .  .  .”  Pursuant  to      \n§ 11-9-522(b)(1), when a claimant has been assigned an impairment rating to the body \nas  a  whole,  the  Commission  possesses  the  authority  to  increase  the  rating,  and  it  can \nfind a claimant totally and permanently disabled based upon wage-loss factors.  Cross \nv. Crawford County Memorial Hosp., 54 Ark. App. 130, 923 S.W.2d 886 (1996). \n To  be  entitled  to  any wage-loss disability  in  excess of  an  impairment  rating, the \nclaimant must prove by a preponderance of the evidence that she sustained permanent \nphysical  impairment  as  a  result  of  a  compensable  injury.  Wal-Mart  Stores,  Inc.  v. \nConnell,  340  Ark.  475,  10  S.W.3d  727  (2000).    The  wage  loss  factor  is  the  extent  to \nwhich  a  compensable  injury  has  affected  the  claimant’s  ability  to  earn  a  livelihood.  \nEmerson  Elec.  v.  Gaston,  75  Ark.  App.  232,  58  S.W.3d  848  (2001).    In  considering \n\nWALKER – H003585 \n \n22 \nfactors that may impact a claimant’s future earning capacity, the Commission considers \nhis  motivation  to  return  to  work,  because  a  lack  of  interest  or  a  negative  attitude \nimpedes the assessment of his loss of earning capacity.  Id.  The Commission may use \nits  own  superior  knowledge  of  industrial  demands,  limitations,  and  requirements  in \nconjunction  with  the  evidence  to  determine  wage-loss  disability.   Oller  v.  Champion \nParts  Rebuilders,  5 Ark.  App.  307,  635 S.W.2d  276  (1982).    Finally,  Ark.  Code  Ann.  § \n11-9-102(4)(F)(ii) (Repl. 2012) provides: \n(a)  Permanent  benefits  shall  be  awarded  only  upon  a  determination  that \nthe   compensable   injury   was   the   major   cause   of   the   disability   or \nimpairment. \n \n(b)  If  any  compensable  injury  combines  with  a  preexisting  disease  or \ncondition or the natural process of aging to cause or prolong disability or a \nneed  for  treatment,  permanent  benefits  shall  be  payable  for  the  resultant \ncondition  only  if  the  compensable  injury  is  the  major  cause  of  the \npermanent disability or need for treatment. \n \n“Major cause” is more than fifty percent (50%) of the cause, and has to be established \nby  a  preponderance  of  the  evidence.    Ark.  Code  Ann.  §  11-9-102(14)  (Repl.  2012).  \n“Disability” is the “incapacity because of compensable injury to earn, in the same or any \nother  employment,  the  wages  which  the  employee  was  receiving  at  the  time  of  the \ncompensable injury.”  Id. § 11-9-102(8). \n Evidence.  Claimant described her jobs at Hino: \nI got hired on to do . . . taking parts out of the box which went to a gate, \ntaking the parts out of the box, putting them on the conveyor where they’ll \ngo  around,  you  know,  cause  they  were  making,  you  know,  the  rear  end \npart  of  the  trucks  for  the  trucks.    And then  after  that  I  was  moved  to  the \nline. \n \n. . . \n\nWALKER – H003585 \n \n23 \n \nI had eight different little jobs that I do from one side to the next.  I’d take \nand  I’d put  the  little  seals,  rubber  seals  into the part,  and  then  it  starts  to \ngo  around,  and  then  I  might  put  a  screw  in  and  it’ll  come  around,  then \nwhere  we  have  this  lift  to  lift  the  part  up  off  the  belt,  put  it  onto  a  pallet, \nrivet  it  down  on  both  ends.    It  goes  into  the  machine  and  the  machine \nreads it, it turns it upside down, it reads the part then, and then I move on \nand I read the serial numbers on the top and the bottom. \n \n[T. 11-12] \nThe following exchange occurred: \nQ. Let’s  go  over  your  conditions and  how that  affected  other areas  of \nyour life since June of 2020 . . . [s]o has it changed your social life \nany?  Are there things you used to do that you can’t do now? \n \nA. Yeah, it has changed a lot in my life, because I go to bed with pain, \nI  wake  up  with  pain.    They  want  to  put  me  on  all  of  these  hypo-\npower   [sic—obviously, “high-powered”]   medications   that   all,   it \ndoesn’t even give you a life  because all you do is sleep your days \naway,  you  know,  and  I  don’t  know,  I  just  see  no  use  to  it,  do  you \nknow what I’m saying, for your know, the medication, you know, the \npain. \n \n[T. 20-21]  Her back condition has negatively impacted her dancing.  She added: \nMy household chores, it takes a long time for me to do certain things like \nstand  in  the  kitchen  for  a  long  time  at  the  sink  washing  dishes  and  stuff \nlike that without me having to take a seat to, you know, rest my back . . . . \n \n[T. 21]  Notwithstanding  her injury, Claimant feels that she still possesses the ability to \nwork—albeit in a limited capacity:  “I am sure with my—I have a super duper back brace \nhe gave me that works for me.  I mean, I could do it [work] sitting down.”  [T. 21] \n When  Dr.  Lovell  released  Claimant,  he  assigned  her  permanent  restrictions  of \nfrequent  lifting  of  no  more  than  25  pounds,  and  occasional  lifting  of  no  more  than  50.  \nHer testimony was that based on her education and experience, she could find another \n\nWALKER – H003585 \n \n24 \njob  within  those  restrictions.    She  hastened  to  add:   “Well,  there’s  some  jobs  out  here \nthat  you  don’t  have  to  lift  much.    It  ain’t  a  lot,  but  it’s,  you  know  .  .  .  [y]ou’re  gonna  lift \nsomething.”  [T.26-27] \n The following exchange occurred on cross-examination: \nQ. Do you feel like you could get a job that paid more than $14.00 an \nhour without having to lift 25 pounds? \n \nA. I’m not really sure in the State of Arkansas, no. \n \nQ. You  are  fairly  educated  and  have  some  college  experience.    I’m \nassuming you can read and write well? \n \nA. I can read and I can write, yes. \n \nQ. And you are [at] least capable with math and arithmetic? \n \nA. Yes, I am. \n \nQ. Do you think you could work as a clerk, a cashier, or anything like \nthat with that injury? \n \nA. Well, I wouldn’t say with that prolonged standing.  I think that would \nget to me as far as a cashier or something like that.  The prolonged \nnormally standing, I think I could probably— \n \nQ. And prolonged standing, is that because of your knees? \n \nA. Well, my back.  I mean, really my back was really the major thing, \nyou  know,  that  started.    You  know  what  I’m  saying?    All  the  rest \nstarted,  you  know,  coming  in,  but  I  think  the  prolonged  standing \nwould probably get me. \n \n[T. 27] \n Asked why she has not applied for work anywhere,  Claimant gave the following \nexplanation: \n\nWALKER – H003585 \n \n25 \nBecause  when  I  get  up  in  the  morning,  I  have  to  take  a  hydro[codone].  \nThat’s why I haven’t applied for no job.  When I lay down at night I have to \ntake one.  She upped them to twice a day now, cause I’m having a lot of \nproblems.  So that’s why I haven’t got no job, because the medication that \nthey  give,  it’s  a  real  drowsy,  sleepy  type  of  medication,  so,  and  I  don’t \nwant to drive and hurt myself or hurt no one else, so that’s why. \n \n[T. 29] \n Claimant has been approved for Social Security Disability.  She draws $1,394.00 \nin monthly benefits.  It was her testimony that her receipt of these benefits has not been \nthe  cause  of  her  not  looking  for  work.    She  denied  that  the  prospect of  her  benefits \nbeing   reduced   or   ended   if   she   got   another   job   would   keep   her   from   seeking \nemployment;  and  she  denied  stating  the  opposite  of  this  in  her  deposition.    [T.  30-31]  \nClaimant  related  that  her  goal  is  to  return  to  work  once  her  pain  situation  has  been \nresolved.    [T.  33]  It  was  not  her  plan  to  draw  disability  benefits  at  age  56.    She \nelaborated: \nI mean,  I  just thought I  had  at  least  three  or  four more  years  out there  in \nthe  workforce.    I’ve  worked  most  of  my  life,  so  I  didn’t  feel  like  I  should \nhave  been  hindered  for  a  company  that  didn’t  even  care  about  their \nemployees, so no, I wasn’t looking to be on disability at this age, no. \n \nHino has not offered her another job since this injury.  [T. 34] \n As for her returning to another position that she held earlier in her career, that of \nbeing a sitter or companion for an elderly individual, Claimant explained that  while she \ncould  perform  the  aspect  of  the  job  that  involved  her  simply  sitting  and  watching  the \nclient, her back condition would not allow her to help the client if, for example, that were \nto fall onto the floor.  [T. 35] \n\nWALKER – H003585 \n \n26 \n With  respect  to  Claimant’s  functional  capacity  evaluation,  which  indicated  that \nshe put forth a sub-optimal effort (see infra), she explained: \nWell,  I’m  not  saying  that  I  hadn’t  limited  myself,  I  only  could  do  what  I \ncould do, and that was what the test was about, no pushing me.  He [the \nevaluator] told me to do what I could do.  So no, I wasn’t limiting myself, I \nwas just doing what he asked of me, but it strained anyway. \n \n[T. 32-33] \n Discussion.  The evidence before me reflects that Claimant is 56 years old and a \nhigh  school  graduate.    She  has  attended  five  semesters  of  college  at  two different \ninstitutions.  Her courses of study there were occupational therapy and business.  Prior \nto going to work for Respondent Hino, Claimant worked as a sitter/companion for elderly \nclients.  While this job by its nature is largely sedentary, a person performing it might be \ncalled upon to help up a fallen patient. \n Her position at Hino, on the other hand, involved working on an assembly line at \na  plant  that  manufactured  truck  parts.    Some  lifting  was  involved—in  fact,  extensive \nlifting the day of her back injury. \n With  respect  to  her  stipulated  compensable  injury,  Claimant  has  undergone \nprimarily  conservative  treatment.    While  Dr.  Lovell  offered  her  surgery  to  address  her \nherniation  at  L5-S1,  she  declined.    Thereafter,  the  doctor  placed  her  at maximum \nmedical improvement as of May 6, 2021, and assigned her an impairment rating of five \npercent  (5%)  to  the  body  as  a  whole.  To  help  assess  Claimant,  she  was  sent  for  a \nfunctional capacity evaluation.  However, her effort was very unreliable, with only 15 of \n45 consistency measures within expected limits. \n\nWALKER – H003585 \n \n27 \n Since that time, her treatment has consisted of pain management.  This has only \nbeen marginally successful; her dosage of Hydrocodone has been increased to address \nher pain, which she rated as averaging 5/10 to her pain management provider.  As she \nrelated  both to  the  provider  and to the  Commission  in  her  testimony,  the pain  at  times \ncan be very severe. \n As  a  consequence  of  Claimant’s  injury,  her  activities  have  been  curtailed.    She \ncan no longer go dancing.  While she believes she could still work, due to use of a back \nbrace,  she  thinks  she  could  only  do  so  from  a  seated  position.    Notwithstanding  this \nopinion, she has not looked for work in the aftermath of her injury.  Hino did not return \nher to work there because she remains under the restrictions assigned by Dr. Lovell:  no \nlifting more than 25 pounds frequently or 50 occasionally.  She is now receiving Social \nSecurity Disability benefits. \n I  find,  after  consideration  of  Claimant’s  testimony,  that  she  is  not  motivated  to \nreturn   to   the workforce.      But   this   does   not   prevent   me   from   finding   that   the \npreponderance of the evidence establishes that she has suffered wage loss disability of \nfive  percent  (5%), and  that her  compensable  back  injury  of  June  2,  2020,  is  the major \ncause of this. \nE. Attorney’s Fee \n One of the purposes of the attorney's fee statute is to put the economic burden of \nlitigation  on  the  party  who  makes  litigation  necessary.   Brass  v.  Weller,  23  Ark.  App. \n193,  745  S.W.2d  647  (1998).    I  find  that  Respondents  have  controverted  Claimant’s \nentitlement  to  the  wage  loss  disability  benefits  that  have  been  awarded  herein.  \n\nWALKER – H003585 \n \n28 \nConsequently,  she  has  proven  by  a  preponderance  of  the  evidence  that  her  attorney \nshould be awarded a controverted fee  thereon pursuant to Ark. Code Ann. § 11-9-715 \n(Repl. 2012). \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance  with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid \nin a lump sum without discount, and this award shall earn interest at the legal rate until \npaid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First  State \nBank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a  25 percent  (25%)  attorney’s  fee  awarded \nherein,  one-half  of  which  is  to  be  paid  by  Claimant  and  one-half  to  be  paid  by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":50007,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H003585 TINA WALKER, EMPLOYEE CLAIMANT HINO MOTOR MFG. USA, INC., EMPLOYER RESPONDENT SOMPO AMER. INS. CO., CARRIER RESPONDENT OPINION FILED APRIL 24, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 27, 2023, in Marion, Critten...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["back","neck","hip","lumbar","cervical"],"fetchedAt":"2026-05-19T23:08:45.806Z"},{"id":"alj-H207016-2023-04-21","awccNumber":"H207016","decisionDate":"2023-04-21","decisionYear":2023,"opinionType":"alj","claimantName":"Rick Hampton","employerName":"Miller County Judge","title":"HAMPTON VS. MILLER COUNTY JUDGE AWCC# H207016 APRIL 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HAMPTON_RICK_H207016_20230421.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HAMPTON_RICK_H207016_20230421.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207016 \n \nRICK D. HAMPTON, \nEMPLOYEE                                                                                                              CLAIMANT \n \nMILLER COUNTY JUDGE, \nEMPLOYER                                                                                                         RESPONDENT  \n \nASS’N OF ARKANSAS COUNTIES WORKERS’ \nCOMPENSATION TRUST/ \nAAC RISK MG’T SERVICES, INC. \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED APRIL 21, 2023 \n \nHearing  conducted  on  Friday,  March  28,  2023,  before  the  Arkansas  Workers’  Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ)  Mike  Pickens,  in  Texarkana, \nMiller County, Arkansas. \n \nThe claimant, Mr. Rick D. Hampton, pro se, of Fort Smith, Sebastian County, Arkansas, appeared \nin person at the hearing.  \n \nThe respondents were represented by the Honorable Jason M. Ryburn, Ryburn Law Firm, Little \nRock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A  hearing  was  conducted  on  Friday,  March  24,  2023,  to  determine  whether  this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2022) \nLexis  Replacement)  and  Commission  Rule  099.13  (2022  Lexis  Repl.).  The  respondents  filed  a \nmotion to dismiss with the Commission on February 1, 2023, requesting this claim be dismissed \nwithout prejudice for lack of prosecution. \n           In accordance with applicable Arkansas law, the claimant was mailed due and proper legal \nnotice of both the respondents’ motion to dismiss as well as a  copy of the hearing notice at his \ncurrent addresses of record via the United States Postal Service (USPS), First Class Certified Mail,  \n\nRick D. Hampton, AWCC No. H207016 \n \n2 \n \nand he appeared in person, pro se, at the subject hearing. The record herein consists of the hearing \ntranscript  and  any  and  all  exhibits  contained  therein  and  attached  thereto,  as  well  as  the \nCommission’s entire file in this matter by reference. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. The \nclaimant and the respondents’ attorney took the opportunity to visit in person before the hearing. \nThe parties agreed on the record that it appears the only two (2) outstanding issues to be resolved \nare the payment of some outstanding mileage expenses for medical visits/treatment. \n           Consequently, both  the  claimant  and  the  respondents’  attorney  agreed  that,  once  these \noutstanding  issues  are  resolved, the  claim  may  be  dismissed  pursuant  to  the  parties’  mutual \nagreement. The parties requested an additional 30 days, or until Tuesday, April 25, 2023, to resolve \nthese issues. The parties will advise the ALJ on or before this date as to whether the issues have \nbeen  resolved.  If  they  have  been  resolved  as  expected,  the  ALJ  will  draft  and  enter  an  opinion \norder of dismissal without prejudice, without the necessity of the respondents’ having to draft and \nfile  another  motion,  and  without  the  necessity  of  the  ALJ  conducting  another  hearing  on  the \nrespondents’ MTD. If the issues have not been resolved, the parties may request additional time to \nresolve them, if needed, or may ask for any and all other appropriate Commission action or relief \nas may be appropriate.  \n \n The  respondents  advised  this  week  they  have  paid  all  the  outstanding  medical  mileage \nexpenses with which the claimant was understandably concerned. Consequently, this resolves the \n\nRick D. Hampton, AWCC No. H207016 \n \n3 \n \nissue with which the claimant expressed concerned and identified as the only outstanding issue at \nthe subject hearing as set forth above.  \n        Therefore,  after a thorough consideration of  the facts, issues, the applicable law,  and other \nrelevant matters of record – including but not limited to the parties’ mutual agreement as set forth \nin the opinion and order to hold the respondents’ motion to dismiss in abeyance for 30 days filed \nMarch 28, 2023, and consistent with the ALJ’s ruling as set forth the parties on the record at the \nhearing – I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2.         The respondents have mailed a check to the claimant for the medical mileage \n                  expense reimbursement with which he was understandably concerned at the subject \n                  hearing; and the claimant has not identified any other issues that are ripe for a \n                  hearing, nor has he requested a hearing on any other issue(s). \n \n      3.        Therefore, pursuant to the parties’ mutual agreement as expressed in the opinion \n                 and order to hold the respondents’ motion to dismiss in abeyance for 30 days filed \n                 March 28, 2023, I find the respondents’ subject motion to dismiss without prejudice \n                 filed with the Commission on February 1, 2023, should be and hereby is \n                 GRANTED; and this claim is dismissed without prejudice to its refiling pursuant \n                 the deadlines prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission \n                 Rule 099.13. \n        \n     4.        The respondents have advised both the claimant and the ALJ they have mailed the \n                subject medical expense check to the address to which the claimant requested they \n                mail it. The claimant shall advise the ALJ and the respondents via email when he \n                receives the check. The Commission shall retain jurisdiction only to the extent \n                required to enforce this order. \n \n This  opinion  and  order  shall  not  be  construed  to  prohibit  the  claimant,  his  attorney,  any \nattorney he may retain in the future, or anyone acting legally and on his behalf from refiling the \nclaim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n\nRick D. Hampton, AWCC No. H207016 \n \n4 \n \n If  they  have  not  already  done  so,  the respondents  shall  pay  the  court  reporter’s  invoice \nwithin ten (10) days of the filing of this opinion and order. \n     IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Mike Pickens \n                                                                                               Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":7073,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207016 RICK D. HAMPTON, EMPLOYEE CLAIMANT MILLER COUNTY JUDGE, EMPLOYER RESPONDENT ASS’N OF ARKANSAS COUNTIES WORKERS’ COMPENSATION TRUST/ AAC RISK MG’T SERVICES, INC. INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED AP...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:08:41.579Z"},{"id":"full_commission-H000399-2023-04-19","awccNumber":"H000399","decisionDate":"2023-04-19","decisionYear":2023,"opinionType":"full_commission","claimantName":"Glenn Gregg","employerName":"City Of Conway","title":"GREGG VS. CITY OF CONWAY AWCC# H000399 APRIL 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Gregg_Glenn_H000399_20230419.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Gregg_Glenn_H000399_20230419.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H000399 \n \nGLENN GREGG, EMPLOYEE  CLAIMANT \n \nCITY OF CONWAY, EMPLOYER RESPONDENT \n \nMUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM,  \nINSURANCE CARRIER/TPA RESPONDENT \n \n \n \nOPINION FILED APRIL 19, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE AARON L. MARTIN, Attorney at \nLaw, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE MARY K. EDWARDS, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed September 20, 2022. In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission \nhas jurisdiction of the within claim. \n \n2.  I accept the above stipulations as fact. \n \n3.  The Claimant proved his entitlement to a 20% \npermanent physical impairment to the right upper \nextremity for his distal bicep rupture on January 7, \n2020. \n\nGREGG – H000399 2\n  \n \n \n \n4. The Claimant’s attorney is entitled to a controverted \nattorney’s fee on all indemnity benefits awarded herein, \npursuant to Ark. Code Ann. §11-9-715. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's September \n20, 2022 decision is supported by a preponderance of the credible \nevidence, correctly applies the law, and should be affirmed.  Specifically, \nwe find from a preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, \nincluding all findings of fact and conclusions of law therein, and adopt the \nopinion as the decision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \nLaw Judge's decision in accordance with Ark. Code Ann. §11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. §11-9-715(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \n\nGREGG – H000399 3\n  \n \n \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents \n \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority Opinion finding that the \nclaimant proved his entitlement to a 20% permanent impairment rating to \nthe right upper extremity.  \nIt is the duty of this Commission to determine whether any \npermanent anatomical impairment resulted from the injury, and, if it is \ndetermined that such an impairment did occur, the Commission has a duty \nto determine the precise degree of anatomical impairment. Johnson v. \nGeneral Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994); Crow v. \nWeyerhaeuser Co., 46 Ark. App. 295, 880 S.W.2d 320 (1994). In order for \nthe claimant to prove he is entitled to permanent benefits, he must prove by \na preponderance of the evidence that his workplace injury was the major \n\nGREGG – H000399 4\n  \n \n \ncause of his permanent disability. See, e.g., Hickman v. Kellogg, Brown & \nRoot, 372 Ark. 501, 277 S.W.3d 591 (2008); Wright Steel & Mach., Inc. v. \nHeimer, 2017 Ark. App. 643, 535 S.W.3d 311 (2017). Ark. Code Ann. § 11-\n9-102(14) defines “major cause” as more than 50% of the cause and a \nfinding of major cause must be established by a preponderance of the \nevidence.  \nThe ALJ’s findings rely almost entirely on the opinion of Dr. Tom \nRoberts after isokinetic testing performed in July 2020. Dr. Roberts did not \nview the extent of the claimant’s injury internally and did not perform \nsurgery on the claimant. In fact, Dr. Roberts did not administer the isokinetic \ntesting on the claimant, but merely read the results to issue an impairment \nrating using the American Medical Association Guides to the Evaluation of \nPermanent Impairment (“AMA Guides”). Isokinetic testing is a measure of \nstrength and the AMA Guides state that strength measurements are \n“influenced by subjective factors that are difficult to control.” (AMA Guides, \nP. 64). The Guides states that “[b]ecause strength measurements are \nfunctional tests influenced by subjective factors that are difficult to control, \nand the Guides for the most part is based on anatomic impairment, the \nGuides does not assign a large role to such measurements.” Id. (emphasis \nin original). The Act is clear that impairment ratings must be based on \n“objective and measurable physical findings” not subject to the claimant’s \n\nGREGG – H000399 5\n  \n \n \ncontrol. Ark. Code Ann. § 11-9-704(c)(1)(B). Passive range of motion \ntesting does not fall within a claimant’s voluntary control and “is the correct \nmethod to determine a claimant’s potential impairment rating.” Hayes v. \nWal-Mart Stores, 71 Ark. App. 207, 29 S.W.3d. 751 (2000). \nThe claimant’s isokinetic testing was performed “at the therapy \nplace, wherever that was. It was a physical therapy place in Conway.” \n(Hrng. Tr., P. 26). Dr. Roberts did not perform the testing himself, and his \nonly report regarding the claimant’s range of motion reflects that the \nclaimant had “full range of motion of his right elbow. . . He ha[d] good \nforward flexion abduction strength of his shoulder. No significant swelling \n[was] noted.” (Joint Ex, P. 122). In fact, Dr. Roberts noted on four occasions \nthat the claimant had full extension and flexion of his right elbow. (Joint Ex., \nPp. 86-89, 103-104, 112-113, 121-122). Dr. Robert’s notes reflect that he \nrelied on the claimant’s statements regarding his injury rather than objective \nfacts. (See Joint Ex., P. 121). Dr. Robert’s impairment rating is given more \nweight than it is warranted by the ALJ. The unreliable isokinetic testing was \nnot performed by Dr. Roberts and he based the claimant’s impairment \nrating on data that he had not viewed first-hand. Furthermore, the objective \ntesting prioritized by the State reflected that the claimant has no impairment \nwhatsoever. \n\nGREGG – H000399 6\n  \n \n \nThe ALJ and the Commission have ignored the Claimant’s treating \nphysician, Lawrence O’Malley, who was in the best position to evaluate the \nclaimant and render an opinion on permanent impairment. Dr. O’Malley \nperformed surgery on the claimant’s right bicep on January 20, 2020, and in \nhis operative report stated he found “no fluid around the tendon, which \nwould be consistent with an acute injury” and extensive scarring which in \nhis opinion indicated an injury greater than six months in age due to the \namount of scarring present. (Joint Ex. 1, P. 71). He went on to state, “There \nis a very short amount of bicep tendon residual left with rounding off of the \ntendon consistent with a chronic injury.” Id. Later, in an opinion letter, dated \nDecember 2, 2020, Dr. O’Malley opined that the bicep tendon had a chronic \ntear and there was no fluid surrounding the residual tendon that would \nnormally be found after an acute rupture. (Resp. Ex., P. 6). Dr. O’Malley is \nof the opinion that the tear was at least six months old at the time of \nsurgery. Id. In his report dated December 3, 2020, Dr. O’Malley stated the \nclaimant’s tendon was chronically torn and that he had been performing his \nfull job as a firefighter with a torn distal bicep prior to his work injury. Dr. \nO’Malley assessed a 0% impairment rating. (Joint Ex., P.p. 76-80). \nThe Commission must remember that a claimant’s testimony is \nnever uncontroverted. Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 \nS.W.2d 457 (1994). Further, the Commission is well within its rights to \n\nGREGG – H000399 7\n  \n \n \ndecide which medical evidence best translates to a finding of medical \nimpairment. See Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 \n(2001). \nThe claimant has provided no medical proof of objective findings that \nhe is permanently impaired. In fact, Dr. O’Malley opined that 0% of the \nclaimant’s alleged impairment can be attributed to a compensable injury as \nthe claimant’s ruptured bicep tendon is a chronic condition pre-dating the \nalleged injury. These findings of the claimant’s treating physician, who \nperformed surgery on the claimant, must prevail over findings of a doctor \nwho did not even perform the subjective testing on which his rating was \nbased. \nIn the matter at hand, Dr. O’Malley’s opinion based on his hands-on \nfindings bear much greater weight than those of Dr. Roberts.  Accordingly, \nfor the reasons set forth above, I must dissent. \n \n \n                                                                              _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":9287,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H000399 GLENN GREGG, EMPLOYEE CLAIMANT CITY OF CONWAY, EMPLOYER RESPONDENT MUNICIPAL LEAGUE WORKERS’ COMPENSATION PROGRAM, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 19, 2023 Upon review before the FULL COMMISSION in...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:29:46.511Z"},{"id":"alj-H204976-2023-04-19","awccNumber":"H204976","decisionDate":"2023-04-19","decisionYear":2023,"opinionType":"alj","claimantName":"Lyna Beals","employerName":"Milligan Racing (allen Milligan)","title":"BEALS VS. MILLIGAN RACING (ALLEN MILLIGAN) AWCC# H204976 APRIL 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BEALS_LYNA_H204976_20230419.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BEALS_LYNA_H204976_20230419.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: H204976 \nLYNA M. BEALS,  \nEMPLOYEE                                                                                                             CLAIMANT \n \nMILLIGAN RACING (ALLEN MILLIGAN),  \nEMPLOYER                                                                                                         RESPONDENT \n \nLIBERTY MUTUAL INSURANCE CORPORATION, \nINSURANCE CARRIER                                                                                    RESPONDENT \n \nLIBERTY MUTUAL GROUP,  \nTHIRD PARTY ADMINSTRATOR (TPA)                                                     RESPONDENT \n \n \n         OPINION FILED APRIL 19, 2023        \n        \nHearing held before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK in Hot Springs, \nGarland County, Arkansas. \n \nClaimant represented by Ms. Evelyn E. Brooks, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by Mr. Michael E. Ryburn, Attorney at Law, Little Rock, Arkansas. \n \n \nStatement of the Case \nOn  January  20,  2023,  the  above-captioned  claim  came  on  for  a  hearing in  Hot  Springs, \nArkansas.    A  pre-hearing  telephone  conference  was  conducted  in  the  above-styled  claim  on \nSeptember 27, 2022, from which a Pre-hearing Order was filed on that same day.  A copy of said \norder and the parties’ responsive filings have been marked as Commission’s Exhibit 1 and made a \npart of the record without objection.   \nStipulations \nDuring  the  pre-hearing  telephone  conference,  and/or  hearing  the  parties  agreed  to  the \nfollowing stipulations: \n\nBeals- H204976 \n \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n2. That  the  employee-employer-carrier  relationship  existed  at  all  relevant  times \nincluding on or about April 16, 2022, when the Claimant alleges to have sustained \na compensable injury to her neck. \n3. The Claimant’s average weekly wage on April 16, 2022, was $600.00.\n1\n  \n4. The Respondents have controverted this claim in its entirety.  \n5. All   issues   not   litigated   herein   are reserved  under  the  Arkansas  Workers’ \nCompensation Act, including but not limited to the Claimant’s alleged injuries to \nher shoulder, right elbow, and right knee. \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether  the  Claimant  sustained  a  compensable  injury  to  her  neck  on  April  16, \n2022.  \n2. Whether the Claimant’s average weekly wage on April 16, 2022, was $600.00, or \nwas she a seasonal worker.  (This issue has been rendered moot and not addressed \nin  this  Opinion  because  following  the  hearing,  the  parties  stipulated  that  the \nClaimant’s average weekly wage was $600.00).      \n3. Whether the Claimant is entitled to temporary total disability compensation from \nMay 13, 2022, through January 12, 2023. \n4. Whether the Claimant is entitled to the medical  benefits of record relating to her \n \n1\nAfter the hearing, the parties agreed to stipulate to an average weekly wage of $600.00.  \n\nBeals- H204976 \n \n3 \n \nneck  condition;  and  future  medical  treatment  as  recommended  by  her  treating \nphysician, Dr. John Pace.    \n5. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n The respective contentions of the parties are as follows: \nClaimant:  \nAt the beginning of the hearing, the Claimant’s attorney modified her contentions to state, \nin relevant part: That the Claimant had a compensable injury to various body parts but specifically \ntoday only her alleged neck condition and associate benefits of temporary total disability benefits \nand medical treatment for that condition will be litigated at this time.  \nRespondents: \n At the beginning of the hearing, the Respondents’ attorney modified their contentions to \ncontend in relevant that the Claimant did not injure her neck on April 16, 2022, and that she has \nnot been temporarily disabled for any period of time.   \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear  the  testimony  of  the  witnesses  and  observe  their  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.      The Arkansas Workers’ Compensation Commission has jurisdiction over this     \n          \nclaim. \n \n2.       I hereby accept the above-mentioned proposed stipulations as fact. \n \n\nBeals- H204976 \n \n4 \n \n3.     The Claimant proved by a preponderance of the evidence that she sustained a    \n \n                      compensable injury to her neck on April 16, 2022, which resolved no later than  \n         \n          April 21, 2022.         \n           \n          4.         The Claimant failed to prove by a preponderance of the evidence her entitlement to \n    \n          any temporary total disability compensation. \n \n          5.        The Claimant proved by a preponderance of the evidence that the medical treatment   \n                     she received on April 18 and 21, 2022 was reasonable and necessary treatment for          \n                     her compensable neck injury.  However, the Claimant failed to prove her need for \n                     any future medical treatment for her neck injury.    \n    6.        The issue pertaining to a controverted attorney’s fee has now been rendered moot   \n \n         because no indemnity benefits have been awarded on this claim.  \n \n          7.        All issues not litigated herein are reserved under the Arkansas Workers’  \n \n  Compensation Act.      \n \nSummary of Evidence \nMrs. Lyna M. Beals (referred to herein as the “Claimant”), and her husband, Mr. Thomas \nJames Beals, testified during the hearing.  \n            The record consists of the January 20, 2023 hearing transcript and the following exhibits: \nSpecifically,  Commission’s  Exhibit  1 includes  the  Commission’s  Prehearing  Order filed  on \nSeptember 27, 2022 and the parties’ responsive filings; Claimant’s Medical Exhibit consisting of \nforty-five   numbered   pages was  marked  Claimant’s  Exhibit  1;  Claimant’s   Exhibit   No.   2 \nencompasses a Non-Medical Exhibit and is made up of nine numbered pages; Claimant’s Exhibit \n3 is a  Video of the  Incident on April 16, 2022, which is retained in the Commission’s file; and \n\nBeals- H204976 \n \n5 \n \nRespondents’ Non-Medical Documentary Exhibit includes four pages and it has been marked as \nRespondents’ Exhibit 1. \n Although  there  was  some  discussion  of  the  possibility  of  the  Respondents  taking  the \ndepositions of two potential witnesses,  namely, Allen Milligan, and his wife, Jeanette Milligan; \nhowever,  counsel  for  the  Respondents  has  decided  not  to  take  these  depositions.    Also,  the \nClaimant was given additional time to submit her tax records, but the necessity for the submission \nof  these  records  was  rendered  moot  because  the  parties  have  now  agreed  to  an  average  weekly \nwage for the Claimant.           \n                                                 Testimony \n  \nThe Claimant/Lyna M. Beals   \n The Claimant was forty-nine years old at the time of the hearing.  She confirmed that  in \nJuly 2021, she was hired to work for Mr. Allen Milligan, the owner of Milligan Racing, a horse \nracing company.  She testified that Mr. Milligan is a horse trainer.  According to the Claimant, at \nthe time of hire, her job title was groom.  She explained that she had previously worked for both \nMr. Milligan and his wife approximately five years ago.  The Claimant essentially testified that \nshe worked as a full-time employee of Mr. Milligan during the horse racing season at Oaklawn \nPark, in Hot Springs.  According to the Claimant, once the season ended, she continued working \nfor Mr. Milligan at  his farm in Royal,  Arkansas.  She  further testified that  Mr. Milligan rents a \nfarm after the season ends, because it is hard to find a facility in the surrounding area of Oaklawn \nPark.  According to the Claimant, Mr. Milligan has rented the farm for the past two years.  She \nconfirmed that she continued to work for Mr. Milligan until May 12, 2022.  Per the Claimant, she \nhad no prior plans to end her employment with Mr. Milligan.  \n\nBeals- H204976 \n \n6 \n \n According  to  the  Claimant,  she  also  worked  for  Mr.  Milligan’s  wife,  Mrs.  Jeanette \nMilligan,  cleaning  her  office  every  other  week.    The  Claimant  testified  that  his  wife  runs  the \nHPBA, which is the medical center at Oaklawn.  \n The Claimant’s attorney asked her to explain her employment duties with Milligan Racing \nthat  she  had  over  a  period  of  time  before  April  16,  2022.    Specifically,  the  Claimant  basically \ntestified  that  she  was  promoted  to  the  position  of  assistant  horse  trainer,  but  she  did  not  have a \nlicense.    According  to  the  Claimant,  she  ran  the  entire “barn”  and  farm  for  Mr.  Milligan.    The \nClaimant testified that they called it a “barn,” but it is an out stable there at Oaklawn.  According \nto the Claimant, her employment duties for Mr. Milligan included managing the other employees, \npayroll  functions,  the  hiring  and  firing  of  employees,  and  various  other  responsibilities.    The \nClaimant testified that they had hot walkers, and these workers were seasonal employees.  Per the \nClaimant, the seasonal people worked during the horse racing season at Oaklawn, which was from \nDecember  until  May.    However,  the  Claimant  was  a  full-time  employee  of  Mr.  Milligan  and \nworked year-round for him.  According to the Claimant, Mr. Milligan paid her in cash.     \n The Claimant testified that her husband also worked for Mr. Milligan. She testified that she \nnever traveled out of state, but she did go to Lone Star Park last year.  Per the Claimant, she won \na race for Mr. Milligan.  She testified that at Lone Star, she worked as a groom and went there for \ntwo weeks to help  Mr.  Milligan  get set up.  The Claimant stated that she and her husband  both \nhauled horses for Mr. Milligan to Louisiana.  She essentially stated that they did a lot more work \nthan  just  work  during  the “live  meet”  at  Oaklawn.    According  to  the  Claimant,  they  performed \nseveral tasks for Mr. Milligan outside of that time frame.  \n Next,  the Claimant was shown a copy of Claimant’s Non-Medical  Exhibit  on  page  1, \nwhich is a payroll sheet of some her earnings from December 3, 2021, through May 13, 2022.  She \n\nBeals- H204976 \n \n7 \n \nconfirmed  having  previously  seen  this  payroll  record.    However,  the  Claimant  explained  this \ndocument  does  not  show  all  her  earnings.    Even  though  the  Claimant  gave  extensive  testimony \nregarding her pay arrangement with Mr. Milligan, the majority of this testimony has been omitted \nsince the parties have now agreed that the Claimant’s average weekly wage on the day of her injury \nwas $600.00.  \n Regarding the Claimant’s April 16, 2022, work-related injury, she essentially testified that \nwhile in stall eight, she was struck by a horse during a paddock event.  According to the Claimant, \nshe and Mr. Milligan had the horses in a huge area so they could circle around.  During this event, \nbystanders are given the opportunity to view the horses and check them out before placing their \nbets.  Specifically,  the  Claimant  testified  that  this  particular  horse  had  never  been  in  a  paddock \nbefore participating in a live race.  She essentially stated that the horse was what they call a “first-\ntime  starter;”  and  as  a  result  the  horse  was  very  nervous  and  making  various  movements.  \nTherefore, Mr. Milligan told the groom to take the horse and walk her a few laps.   \nSpecifically, the Claimant testified regarding her accidental injury of April 16, 2022: \n...I was at her right front leg area and the horse just reared up, lunged forward, \nand I was right in her line of fire on the front right of her arm. And all I know is I went \nflying past the nine hole all the way to the - - almost to the wall where the people were, \nand when I landed, I landed on my right shoulder and I hit my right side of my head \non the cement, and I landed on my right knee, as well.  That was the last part  -  -- the \nbody part that fell.  But when I came to, I sat up and I could not get up.  Allen Milligan \nhad to walk over, because I was just in a daze, and he had to help me up because I just \n-- I didn’t -- I was, you know, I was just confused at what was going on.  It happened \nso fast...      \n\nBeals- H204976 \n \n8 \n \nThe Claimant testified that she was in shock because she had never been hit that hard before \nby a horse during her ten years of working with them.  According to the Claimant, immediately \nafter the incident, her left side and wrist were hurting.  She also was sore, and her right collarbone \narea hurt the most.  They gave the Claimant ice packs and she was told by her boss, Mr. Milligan, \nto take it easy.   \nShe admitted that she has watched the video offered into evidence, which shows the April \n16, 2022, incident of her being struck by the horse.  Per the Claimant, the angle of the video is not \nvery good.  My review of the surveillance video confirms the same.      \nThe Claimant agreed that there are also some photographs admitted into evidence as part \nof Claimant’s non-medical exhibit on pages 9, 12, and 13.  She was allowed to peruse the pictures.  \nThe  Claimant  stated  that  the  picture  on  page  9  depicts  her  back,  the  left  of  her  lower  back.  \nHowever, the Claimant’s attorney requested that the photo of the Claimant’s back be removed \nsince it does not relate to the current.  She confirmed that the photograph on page 12 depicts the \nright side of her neck.  Per the Claimant, her neck was inflamed  and the EMT looked at it and felt \nthe swelling.  The Claimant agreed that the picture shows what her neck looked like on the night \nof April 16, 2022.  She confirmed that her husband took the pictures.  On the next page at 13, the \nClaimant testified that this picture shows the right side of her neck.  The Claimant testified that \nwhen she got home on the night of the accident, her neck was “really stiff.”   \nIn response to being asked if she ever had problems with her neck prior to this accident, \nthe Claimant replied, “No, never. Never.” The Claimant confirmed that she returned to work the \nnext  day.    However,  the  Claimant  maintained  that  she  was “really  useless”  because  she  was \nhobbling  around  and  felt  like  she  had  aged  twenty  years.   She  admitted  that  on  the  day  of  the \nincident, she did not ask to go to a doctor at that point.  The Claimant confirmed that she worked \n\nBeals- H204976 \n \n9 \n \nwith Mr. Milligan upon her return to work the following day, but she did not ask him if she could \nsee a doctor at that point.  However, according to the Claimant, Mr. Milligan told her to contact \nJeannette Milligan (his wife) and talk with her about the claim because he was party to this claim.   \nThe Claimant testified that she sent Jeanette a text because she was several buildings away \nfrom her.  In this text message, the Claimant testified that she asked Jeanette Milligan for medical \ntreatment. She further testified that Mrs. Milligan gave her the contact information for her to go to \nSherwood Urgent Care, in Hot Springs.  According to the Claimant, she needed a claim number in \norder for her to be seen at the clinic.  However, the Claimant testified that Ms. Milligan did not \nprovide  her  with  the  claim  information  until  April  18.    As  a  result,  that  was  the  first  day  the \nClaimant received medical treatment.  The Claimant testified that the medical staff at Sherwood \nUrgent Clinic took X-rays and prescribed her some muscle relaxers.  She denied that they ordered \nphysical therapy for her at that time. \nUltimately,  the  Claimant  did  undergo  some  physical  therapy  treatment.  However,  she \ndenied  that  the  physical  therapy  was  very  helpful  in  relieving  her  symptoms.    According  to  the \nClaimant,  she  was  given some “dry needle shots.”  However, the Claimant maintained that  the \nmedical  staff  person  did  not  note  this  treatment  in  her  medical  records.    Per  the  Claimant,  they \nonly notated when she was late for her appointments.  She testified that she was late because she \nwas in a lot of pain and had difficulty getting to sleep.  \nSpecifically, the Claimant explained how her physical therapy came to an end: \nA: I  called one day  and said I was running late, and I say, “I’m five (5) \nminutes away,” and she “Oh, don’t bother.”  So, Sonya [phonetic], the receptionist, \nyou know, we had a good rapport every time we’d come in, but she just seemed really \n\nBeals- H204976 \n \n10 \n \nrude  on  the  phone, and she said, ‘We’ll get a medical staff to call you back. Don’t \ncome in until we call you.”  \nThe Claimant confirmed that she had problems attending her physical therapy sessions at \ntimes.  She attributed her failure to attend these appointments to the increased pain she experienced \nbecause of the physical therapy exercises that she could not complete the way they wanted her to, \nsuch  as  with  the  arm  machine.  According  to  the  Claimant,  she  would  compensate  her  left  arm \nbecause her left arm was stronger than her right arm.  After they ended her physical therapy, the \nClaimant sought treatment on her own.  According to the Claimant, she obtained an MRI for her \nneck because she believed something was severely wrong with it.  She admitted that there is a gap \nin her treatment, from the time of her physical therapy treatment and the MRI being performed.   \nWhile treating at Sherwood Urgent Care, the Claimant was restricted to light duty, which \nincluded no pushing, pulling, bending, or squatting.  Per the Claimant’s testimony, she was unable \nto perform her regular job as a groom, and nor was she able to perform employment duties as an \nassistant trainer for that matter.  She testified that Jeanette and Allen Milligan told her to “just take \nit easy.”  The Claimant confirmed that she continued to work for them during the time she was \ngetting treatment at the urgent care clinic.  In fact, she testified her workload increased.  \nAccording to the Claimant, once the meet ended, the horses were moved to other tracks.  \nIn this case, they were moved to Louisiana.  Per the Claimant, since she lived there and was the \nassistant trainer, she had to cover everything when it came to cleaning out and gutting the stalls.  \nThe Claimant testified that she had to use wheelbarrows to clean twenty-five stalls.  If they failed \nto do the cleaning, there was a deposit that her employer would lose.  The Claimant further testified \nthat everything had to be removed and taken to the farm.  This clean-up included the removal of \nhorse tack such as the saddles, bins, and the washing machine.  According to  the Claimant, she \n\nBeals- H204976 \n \n11 \n \nused her husband’s truck to move the equipment.  She testified that she had six truckloads of heavy \nitems that she was not supposed to be moving.  The Claimant testified that she was doing this work \naround the time period of around May 11.  She stated that the horses had been shipped and they \nhad a week to be completely cleared out of Oaklawn Park.   \nAs  of  the  date  of  the  hearing,  the  Claimant  no  longer  worked  for  Mr.  Milligan.      The \nClaimant explained that on May 14, she was at the farm in Royal and her back was out due to all \nof the lifting (including the washing machine) and gutting of the stalls.  According to the Claimant, \nthese activities tore her back up to where it was completely out, along with   her shoulder and neck.  \nThe Claimant testified that Mr. Milligan told Myrtle (a coworker)  to have her jog one of the horses.  \nHowever, the Claimant testified that once Myrtle saw her condition, she took the horse from her \nand jogged it. \nThe Claimant testified that she ended up hiring a guy by the name of Noah to work for her.  \nShe stated that she paid him $200.00 out of her pay for him to cover for her a few days until she \ncould  recuperate.  However,  the  Claimant  essentially  testified  that  Mr.  Milligan  became  upset \nbecause this guy had been working for her and handling his horses.  At that point, Mr. Milligan \ncalled the Claimant when she was at the farm and told her, he did not want the guy there and for \nher not to come back to work until she was 100% better.  The Claimant testified that she gathered \nher tack and everything that she had and left the farm. Her testimony indicates that this was the \nlast time she worked for Mr. Milligan.   \nShe  confirmed  that  she  has  worked  elsewhere  since  her  employment  with  Mr.  Milligan \nended.  However, the Claimant explained that she is unable to do what she set out to do, which \nwas be a groom.  According to the Claimant, she has been downgraded to what they call a “hot \nwalker” because she has numbness of the fingers on both hands and sharp pains.  \n\nBeals- H204976 \n \n12 \n \nThe Claimant confirmed that as of the date of the hearing, she works for another employer.  \nSpecifically,  the  Claimant  testified  that  her  friend  told  her  about  a  job  as  a  hot  walker  and  she \nstarted that position last Friday.  Per the Claimant, her current job is a part-time position, and she \nworks with “mild horses.”  Her current pay is $250.00 a week in cash.  She works four hours a \nday,  seven  days  a  week.    According  to  the  Claimant,  this  is  her  first  job  since  leaving  her \nemployment with Mr. Milligan.    \nRegarding  the  numbness  in  the  hands,  which  she  previously  mentioned,  the  Claimant \ntestified that these symptoms have progressed over the months.  According to the Claimant, while \nundergoing physical therapy, she had upper body collarbone area issues.  The Claimant testified \nthat two months after she stopped the physical therapy, she began having sharp pains, which started \nin her thumb and index finger on both hands.  As a result, the Claimant went to urgent care. The \nClaimant sought treatment from FirstCare Walk-in Clinic, in Hot Springs.  However, according to \nthe Claimant, they wanted a referral from Sherwood Urgent Care, so she had to go back there for \na  referral  to  do  an  MRI.    The  Claimant  testified  that  the  nurse  at  the  Sherwood  clinic  called \nJeannette Milligan, and she told the nurse that the Claimant no longer worked for them, and she \nwas unsure if her treatment would be covered.  The Claimant agreed that she did not seek medical \ntreatment or the MRI at that time because Liberty Mutual would not cover it.  Her MRI was  not \nperformed until November 2022 although in June 2022 Sherwood Urgent Care recommended that \nshe have an MRI.  The Claimant agreed that she was not able to see a doctor before she went to \nthe urgent care  referred her for the MRI.   The Claimant testified that she did not see any other \ndoctor except for Dr. Pace, after the MRI results.    \nShe  testified  that  the  symptoms  in  her  neck  have  worsened  since  the  accident  occurred.  \nAccording  to  the  Claimant,  Dr.  Pace  has  performed  two  injections  on  her  neck.    However,  the \n\nBeals- H204976 \n \n13 \n \nClaimant testified that her neck is stiff all the time.  She stated that she does not have full mobility \nand is not the same.   According to the Claimant, she never had any problems, or numbness in her \nhands and arms, but now she constantly has tingling.  The Claimant testified that although the pain \nis still there, the injections helped with the numbness in her hands because they were completely \nnumb prior to the injections.   \nOn cross-examination, the Claimant denied that she hired for the job with Mr. Milligan just \nfor the Oaklawn meet.  However, the Claimant testified that other workers were hired solely for \nthis purpose.  She confirmed that Janette Milligan paid her $75.00 for the two offices she cleaned \nfor her at HPBA.  The Claimant testified that Jeanette Milligan paid her $150.00 every two weeks, \nwith a company  check.   The Claimant admitted that she did not bring those deposit slips to  the \nhearing.  She explained that HPBA is the Horsemen’s Association.   The  Claimant  testified  that \nHPBA is Janette Milligan’s employer.  She denied that HPBA is part of Milligan Racing.   \n Subsequently, the Claimant testified regarding her alleged injuries, in particular her neck \ncondition: \n Q: Okay.  Now when this claim first came up, we filed our various filings and   \n            you initially said you hurt your shoulder, your right elbow, and your right knee. \n A: Yes, sir. \n Q: Why didn’t you say neck?  \n A: My collarbone is my neck, sir. \n Q; You’re saying it’s your collarbone? \n A: I hurt everything on my right side. \nCounsel  for  the  Respondents  asked  the  Claimant  about  the  MRI  which  shows “a  small \nbulging disc” of her cervical spine.  She maintained that her collarbone was hurt the day of the \nincident. The Claimant was asked about objective medical findings demonstrating something was \n\nBeals- H204976 \n \n14 \n \nwrong with her collarbone and she stated that the EMT saw her collarbone.   She admitted that she \ncontinued to work after her accident, but denied she was at 100%.  The Claimant confirmed she \nwas injured on May 11 as shown in an entry on page 14 of her medical exhibit, which indicates \nshe reinjured her right shoulder and neck.  However, the Claimant next maintained that the wording \nis incorrect when they say “reinjuring.”  The Claimant testified that it is the same initial injury \nfrom the accident she sustained on April 16, 2022. \nThe Claimant admitted that she was released to go back to work.  She confirmed that she \nsent a text to her employer on April 18 stating that she went to the clinic yesterday to get released \nand they said she needed a CAT scan first.  The Claimant confirmed that she underwent the CAT \nscan.  She admitted to further writing in the text message, “CT scan  results are good, just got the \nresults.”  The Claimant also admitted to writing in that same text message exchange that they could \nsee her tomorrow anytime at Sherwood Urgent Care to get her released for work.   \n Specifically, the Claimant explained: \nQ: So, at  that  point  and  time  you’re  fine,  and  your  CAT  scan  didn’t  show \nanything; is that right? \nA; No.  the CAT scan, I guess, did not show my C5 and 6.  I’m not a doctor but \n... \nNext,  the  Claimant  was  asked  if  following  this  April  16,  2022,  incident,  she  had  a  test \nshowing something wrong with her neck, and she replied: “There’s everything wrong with my \nneck.”  Although it was not until after May 11, when the Claimant had the second incident, there \nis  an  MRI  showing  the  bulging  disc,  the  Claimant  continued  to  maintain  it  is  the  same  injury.  \nHowever, the Claimant was unable to explain why the doctor said she was “reinjured,” but stated \nthis was not correct.      \n\nBeals- H204976 \n \n15 \n \nEven though the Claimant continued working at the farm after May 11, she testified she \nwas in “really poor shape” because of the six truckloads of things she had moved for Mr. Milligan.  \nAccording to the Claimant, there is  a lot involved in clearing out Oaklawn once the meet ends.  \nShe stated that she had to do the cleanup to move to the farm and resume working the very next \nday.  The Claimant testified that she had to clear everything  out of Oaklawn and put it all in Mr. \nMilligan’s facility at the farm in Royal that he had been renting for over two years.   \nShe confirmed that Mr. Milligan telephoned her on May 14, and told her not to come back \nunless she was 100%.  However, the Claimant testified she never got the release to return to work.  \nAccording  to  the  Claimant,  between  May  and  January  she  was  recuperating  because  she  was \nunable to do anything.  She testified she had to go to a lower paying job, which is very minimal \nwork compared to a grooming position.  The Claimant confirmed that she told her current employer \nabout her condition.  Per the Claimant, she currently works as a hot walker, which entails walking \na horse in circles.  She testified that there is no extra work or lifting a horse’s leg like she used to \ndo.  The Claimant denied that the horses she works with tend to jerk and rear up.  She testified that \nthe horses at this barn are “really tamed horses,” in comparison to those at other barns. \nPrior  to  horse  racing  type  work,  the  Claimant  testified  that  she  could  type  seventy-five \nwords a minute and once worked at a Revenue Office.  However, she testified that she is unable \nto  type  due  to  the  neuropathy  in  her  hands.    The  Claimant  has  a  GED.   She  confirmed  that  she \npreviously worked at the Department of Motor Vehicles in Norfolk, Virginia.                                            \nOn redirect-examination, the Claimant testified that she complained of neck pain right after \nthe accident when she went in to see the doctor.  She confirmed that she continued to complain of \nneck pain during the entire time she was being treated at Sherwood Urgent Care.  The Claimant \n\nBeals- H204976 \n \n16 \n \nadmitted that the epidural steroid injections done by Dr. Pace helped with the numbness and the \npain, but she denied that she is 100%.  She has not been released to return to work.   \nThomas James Beals \n The Claimant’s husband, Mr. Thomas Beals, was called as a witness to testify on behalf of \nhis wife.  Mr. Beals confirmed that he is associated with the Claimant by marriage.  The couple \nhas been married for three years.  Mr. Beals confirmed that he has knowledge of where his wife \nwas  working  from  2021  and  the  beginning  part  of    2022.    He  confirmed  that  they  both  were \nworking for Allen Milligan at that time.  Mr. Beals testified that he worked as an assistant trainer.  \nAccording to Mr. Beals, the Claimant had worked for Mr. Milligan off and on for years and years.  \nMr. Beals explained that in 2022 the Claimant worked full time for Mr. Milligan except for the \ntwo months that they took off.  The couple went to Texas with Mr. Milligan for two weeks to help \nthem get set-up there.  According to Mr. Beals, Mr. Milligan told them not to get a job because he \nwas coming back to Hot Springs, which he did do in July.  Mr. Beals testified that they went back \nto work for Mr. Milligan out at the farm on Sunshine.  However, not long after that Mr. Beals went \nto work for another barn.  He testified that the Claimant stayed and worked full time and worked \nall the way through the meet until she got hurt in May.  \n He testified that the Claimant stayed working full-time with Allen (Milligan) all the way \nthrough the season and until when she got hurt, which was in May (2022).  According to Mr. Beals, \nthe Claimant worked for Mr. Milligan for ten months when they returned to Hot Springs in July, \nwhich was during season 2021.  Mr. Beals testified that the Claimant made $600.00 a week while \nworking for Mr. Milligan.  \n On cross-examination, Mr. Beals confirmed that he testified that the Claimant worked until \nshe got hurt in May.  In relevant part, Mr. Beals clarified: \n Q: And in May was when she was unloading the truck? \n\nBeals- H204976 \n \n17 \n \nA: Well, when she got hurt at the races, I guess that was in April, and then, you know, \nshe was on light-duty.  And when they shipped out, they left her to just load everything up \nand take it to the farm, and that was at the end of May.  She borrowed my truck, and she \nmade  a  couple  of  loads  before  I  got  free  and  once  I  got  over  there --  because  I  had  her \nDurango, and once I got there, I helped her with several loads after, you know, I got back \nand  started  helping  her.    But  it  was  everything  from  gates,  to  rakes,  to  pitchforks, \nwheelbarrows, refrigerators, washer, dryer.  There was – I mean, they just took what was \nneeded  for  the  horses  they  left  with,  and  they  jetted  out  of  town.    And  she  had  hired  a \ncouple of other people to help her load up and everything, which was out of our pocket, \nand then they left when I got there and me and her finished the rest of the loads.                     \n Mr. Beals confirmed that the Claimant “reinjured” herself as the medical report states. Per \nthis report, on May 11, 2022, the Claimant reinjured her right shoulder and neck loading a truck.  \nHe testified that she reinjured her right shoulder and neck while loading a truck.   \nMoreover,  Mr.  Beals  specifically  testified, in  relevant  part  regarding  the  Claimant’s \ncondition after the May 11 incident, “...She  was  in  pain  immensely.    Honestly,  you  know, \npersonally I don’t think she should been doin’ all that but, I mean, yes, she did hurt herself again...”   \nUnder further questioning, Mr. Beals confirmed that after the Claimant injured herself for \nthe second time in May, she stopped working for Mr. Milligan.  He testified that the Claimant was \nin tears and a lot of pain.  According to Mr. Beals, the Claimant told Mr. Milligan about what had \nhappened, and she let him know that she was hurting worse.  Mr. Beals testified that the Claimant \nwas supposed to go directly out to the training center to work, but she could not do that and could \nhardly walk.    \n\nBeals- H204976 \n \n18 \n \nHowever,  Mr.  Beals  testified  that  Mr.  Milligan  told  the  Claimant  to  handle  everything. \nSince she was unable to work, she got a man to come to work for her until she could feel better.  \nMr.  Beals  essentially  testified  that  Mr.  Milligan  became  furious  and  was  ranting  and  raving \nbecause the Claimant had someone he did not know in the shed row.  He testified that Mr. Milligan \ntold the Claimant she could not come back to work until she was 100%.  According to Mr. Beals, \nhe was with the Claimant when she got the phone call from Mr. Milligan.   \n Mr. Beals testified that the Oaklawn horse racing season runs from December 9  until May \n15.   He confirmed that the Claimant worked at Oaklawn during the 2021 season.  Mr. Beals further \ntestified that the Claimant was there from 2021 until 2022, which cuts into the next year.  \n On redirect examination, Mr. Beals confirmed the Claimant was on light duty, at the point \nwhen she was cleaning out the stalls.  He confirmed that when the Claimant got hurt in the paddock \nduring the incident with the horse, she had problems with her neck and shoulder.  Mr. Beals stated \nthat he took all kinds of pictures of the Claimant’s  knee and elbows that night.  He agreed that the \nClaimant’s neck and shoulder continued to bother her while she was working on light duty.  Mr. \nBeals testified that for the first couple of days, the Claimant was stiff and could hardly move.  He \ndenied that the Claimant ever got completely better while working on light duty. According to Mr. \nBeals, the Claimant worked as a groom and assistant trainer for Mr. Milligan.         \n            I  specifically  questioned  Mr.  Beals  concerning  this  May  11  incident.  Mr.  Beals  testified \nthat the incident occurred when the two of them were loading the truck.  According to Mr. Beals,  \nthey were picking up a washer or dryer, and when they picked it up, “she just gave out.”  Mr. Beals \ntestified that he asked the Claimant “What’s wrong?”  And the Claimant replied, “I hurt myself \nagain.”  He  finished  loading  the  truck  and  when  Mr.  Beals  got  in  the  truck,  the  Claimant  was \n\nBeals- H204976 \n \n19 \n \nholding her neck and shoulder.  Mr. Beals essentially testified that he could tell the Claimant was \nin pain, so he did not ask her any questions.  \n On further recross-examination, Mr. Beals maintained that the Claimant got hurt in April \nand  then  in  May,  she  hurt  herself  even  more.  However,  he  essentially  confirmed  that  after  the \nMay 11 incident, the Claimant stopped working.   \n Mr.  Beals  admitted  on  further  redirect  examination  that  the  Claimant  had  not  been \ncomplying  with  her  light  duty  restrictions  before  the  May  11  incident.  He  testified  that  Mr. \nMilligan still had the Claimant grooming and she had been walking around stiff and in tears before \nMay.  Mr. Beals testified that other grooms were taking horses from the Claimant because she was \nunable to do the work.  However, Mr. Beals admitted that this occurred before the Claimant’s job \nended in May.                  \nMedical Evidence \n On April 18, 2022, the Claimant sought treatment for pain from the Sherwood Urgent Care \nClinic,  in  Hot  Springs.    There,  the  Claimant  came  under    the  care  of  Pamela  Speed, NP  (nurse \npractitioner).    At  that  time,  the  Claimant  complained  of  shoulder  and  neck  pain.    The  Claimant \nreported  a  history  of  having  been  injured  on  the  Saturday  while  working  with  horses  at  the \nracetrack. Specifically, the Claimant  stated that she was pushed over striking her right shoulder \nand her neck was hurting.   The Claimant reported that most of her symptoms were on the right \ncervical  side.    Additionally,    the  Claimant  stated  that  she  had  muscle  aches,  muscle  pain,  and \nmuscle  spasms.   On  physical  examination,  Nurse  Speed  noted  that  the  Claimant  had  mild  neck \nspasm, along with anterior neck bilateral pain.  Nurse Speed diagnosed the Claimant with among \nother things, “Cervicalgia, Illness, Acute,” for which she prescribed a medication regime which \nincluded a Medrol Pak 4mg in a dose pack, and Robaxin.  Speed authored an Excuse for Work on \n\nBeals- H204976 \n \n20 \n \nthat  same  day.    She  released  the  Claimant  to  restricted/accommodated  duty.    Her  restrictions \nincluded  limited  standing,  sitting,  and  walking  along  with  a  ten-pound  lifting  restriction  to  her \nright hand.      \n The Claimant sought follow-up care from Sherwood Urgent Care on April 21, 2022, due \nto pain in her neck, among other bodily parts.  She stated that she was kicked by a horse on the left \nside, but this caused her to fall, and she landed on her right side, striking her head on the ground.  \nThe Claimant reported she “hit her head on a concrete floor” when she fell.  She reported that she \nstarted  having  dizziness,  headache,  and  nausea  after  leaving  the  clinic.    However,  the  Claimant \nspecifically reported that her symptoms were now better.  H er shoulder pain, and right back pain \nwere now resolved, and her ROM in her neck was normal.  Although the Claimant reported her \nsymptoms had resolved, a CT of the head was ordered due to a diagnosis of concussion without \nloss of consciousness.  Medical staff instructed the Claimant to return to the clinic for follow-up \ncare after the imaging was completed.      \n Subsequently,  on  June  14,  2022,  the  Claimant  returned  to  Sherwood  Urgent  Care  for \nadditional medical care.  The nurse practitioner, Robyn Chreene, wrote that the Claimant had an \ninjury at work on April 18 [sic], 2022 and was seen there at the clinic.  Per these medical notes, \nthe Claimant had a CT of the head performed on April 26, 2022, and received the results on April \n28, 2022.  The nurse practitioner noted that the Claimant was told to come back for clearance to \nreturn  to  work,  but  she  never  returned.    At  that  time,  the  Claimant  reported  that  her  employer \nrefused to return her to work until she was 100%, but she does not feel 100%.  The Claimant stated \nthat she did not know what to do and wanted to know what she should do given her condition.  She \nreported that she continued to have right-sided neck pain from the initial injury although her X-\nrays of the C-spine were normal.  But the Claimant denied numbness or tingling or any radiation \n\nBeals- H204976 \n \n21 \n \nof  pain  down  her  arm.  At  that  time,  the  Claimant  reported  that  she  hurt  her  back  in  a  separate \nincident on May 11, 2022, lifting something.  They ordered physical therapy and noted that they \nwould move forward with an MRI of the neck and shoulder if the Claimant did not improve with \ntherapy.  Although Nurse Chreene continued the Claimant on light duty, she stated that she did not \nfeel  the  Claimant  needed  to  be  placed  completely  off  work.    On  physical  examination,  the \nClaimant’s ROM was noted to be normal in her neck as well as her shoulder with no radiculopathy \nsymptoms.  Specifically, Speed wrote, “Low suspicion for rotator cuff injury or cervical nerve root \nimpingement from work injury.” \n On June 28, 2022, the Claimant presented for follow-up care on her neck and back pain \nunder  the  care  of  Robyn  Chreene,  NP.    She  reported  that  she  had  her  first  physical  therapy \nappointment on July 7, 2022.  The Claimant had not returned to work.  She stated that the muscle \nrelaxers caused her to be nauseated.  Therefore, she had been using ice or heat to the affected area.  \nPer  these  clinical  notes,  Nurse Chreene called the Claimant’s boss to get clarification on the \navailability of light duty work and due to her boss stating she had to be a 100% before returning \nto  work.    Specifically,  the  nurse  practitioner wrote, “At the last visit the patient stated  she  was \ninjured at work on 5/11 as well as reinjuring her right shoulder and neck. Discussed with patient \nthat her boss states she was no longer employed with them and that she was unsure if this was still \ncovered with workers [sic] comp as she was not an employee.”  The nurse practitioner instructed \nthe  Claimant  to  alternate  ice  and  heat  to  her  shoulder;  continue  with  anti-inflammatory;  attend \nphysical therapy as needed; and to follow-up as needed.         \n The Claimant underwent evaluation for physical therapy on July 7, 2022, at Levi Hospital. \nDalton Steele PT, DPT, Cert. DN authored a Physical Therapy Initial Evaluation physical therapy \nnote.    Physical  Therapist  Steele  noted  that  the  Claimant  presented  to  the  therapy  clinic  with \n\nBeals- H204976 \n \n22 \n \ncomplaints of right shoulder pain following a work-related accident.  In particular, the Claimant \nreported she was kicked by a horse in mid-April.  She stated that she was kicked on the left side \nand fell onto the concrete on her right side.  Of significance, the Claimant stated that she sought \ntreatment from Sherwood Urgent Care and was told she suffered a concussion.  She reported that \nher concussion symptoms resolved but she has been having a lot  of pain and difficulty with her \nright shoulder.  The Claimant stated she believed she needed an MRI for her shoulder due to sharp \nand burning pain in her shoulder that does not seem to go away. \n An MRI of the Claimant’s cervical spine was performed on November 16, 2022, with an \nimpression of “At C5-6  there  is  moderate  right  neural  foraminal  stenosis  nerve  impingement.  \nMultilevel degenerative disc and facet changes.” \n William James, CRNA, for Dr. John Pace evaluated the Claimant on December 19, 2022.  \nAt that time, the Claimant reported joint pain, muscle pain, muscle cramps, neck pain, middle back \npain, muscle stiffness and lower back pain.  On physical examination, the Claimant was noted to \nhave cervical spine stiffness and decreased ROM, along with thoracic tenderness among symptoms \nrelated to the lumbar spine.  James performed a right C5/6 epidural steroid injection. \nThe last medical record is from January 3, 2023. The Claimant was seen at the office of \nDr.  John  Pace  under  the  care  of  James,  CRNA.    At  that  time,  the  Claimant  was  assessed  with \n“Radiculopathy, cervical region.”  She continued with the symptoms noted above.  However, the \nClaimant reported improvement with paresthesia in her fingers since the right ESI on the right C5-\n6, which was performed on December 19, 2022.              \nThe  non-medical  exhibits  include  an  Oaklawn  Accident  Report,  which  was  authored  by \nPatrick Bradbury, EMTB.  It reads, in relevant part:  \n\nBeals- H204976 \n \n23 \n \nDescription of Accident: EMS was sitting in the paddock watching the 3\nrd\n race when the \n#8 horse Chaos Magic reared up and caused the patient to slam onto the ground injuring \nher elbow and head.  EMS checked her out and gave her two cold compresses.  She [the \nClaimant] declined an ambulance and signed an AMA. \nAdditionally,  I  have  reviewed  a  copy  of  the  video  surveillance  of  the  April  16,  2022, \nincident.  Although the incident was somewhat captured on video, it does not show a direct view \nof the incident.  However, it does show that there was some kind of commotion in one of the stalls \nwith a horse rearing up.          \nAdjudication \nCompensability  \nThe Claimant has asserted a compensable  neck injury on April 16, 2022, while working \nfor the respondent-employer.  \n \"Compensable  injury\"  means  an  accidental  injury  causing  physical  harm  to  the  body, \narising out of and in the course of employment and which requires medical services or results in \ndisability  or  death.    Ark.  Code  Ann.  §  11-9-102(4)(A)(i).    A  compensable  injury  must  be \nestablished   by   medical   evidence   supported   by   objective   findings.      Ark.   Code   Ann.   § \n11-9-102(4)(D).   The Claimant must prove by a preponderance of the evidence that he sustained \na compensable injury. Ark. Code Ann. § 11-9-102(4) (E)(i). \n  After  reviewing  the  evidence  in  this  case  impartially,  without  giving  the  benefit  of  the \ndoubt to either party, I find that the Claimant proved by a preponderance of the credible that she \nwas injured on April 16, 2022, while working for Milligan Racing.   \nHere, it is undisputed that the Claimant was involved in a work-related accident on April \n16,  2022.    Specifically,  the  Claimant  credibly  testified  that  she  was  injured  on  April  16  while \n\nBeals- H204976 \n \n24 \n \nworking  for  Milligan  Racing.    Her  testimony  demonstrates  that  she  was  injured  when  a  horse \nreared up and caused her to fall to the ground, landing on her right side.  I found the Claimant’s \ntestimony to be credible in this regard and the incident took place in the presence of Mr. Milligan \nand several other people.  The Claimant’s testimony was corroborated by surveillance video of the \nincident, the EMT’s report of injury, and the initial medical reports.   \n Although  the  Claimant  initially  declined  medical  treatment  that  day,  she  later  requested \nmedical  attention  and  Mrs.  Milligan  referred  her  to  the  Sherwood  Urgent  Care  Clinic, in  Hot \nSprings.  Medical records show that the Claimant was initially seen at the clinic on April 18, 2022, \nunder the care of Pamela Speed, a nurse practitioner.  According to this medical note, the Claimant \ncomplained of pain in her shoulder and neck.  X-rays performed of the Claimant’s cervical spine \nwere  normal  and  did  not  show  any  fractures  or  broken  bones.  The  Claimant  was  physically \nexamined by the nurse practitioner. Based on her physical examination of the Claimant, the nurse \npractitioner  opined,  among  other  things, that the Claimant’s neck had “mild  neck  spasm,”  for \nwhich she ordered a medication regimen that included a muscle relaxant, Robaxin.   Hence, this \nfinding of “mild neck spasm” establishes an injury to the Claimant’s neck by medical  evidence \nsupported by objective findings. The Claimant  was diagnosed as having “Cervicalgia, (m54-2) – \nIllness, Acute,” and placed on restricted work duty.  \n Therefore,  based  on  all  of  the  foregoing,  I  find  that  the  Claimant  has  met  all  of  the \nrequirements  for  establishing  a  compensable  injury  to  her  neck.    Thus,  I  therefore  find  that  the \nClaimant proved by a preponderance of the evidence that she sustained a compensable injury to \nher  neck  on  April  16,  2022,  during  and  in  the  course  of  her  employment  with  the  respondent-\nemployer/Milligan Racing. \n\nBeals- H204976 \n \n25 \n \n I recognize the Claimant underwent an MRI of the cervical spine on November 16, 2022, \nwhich revealed that at “C5-6 there is moderate right neural foraminal stenosis nerve impingement.”  \nHowever, I am not persuaded that these findings are related to the Claimant’s April 16, 2022, \nwork-related  injury  due  to  the  following  reasons:  Specifically,  on  April  18,  X-rays  of  the \nClaimant’s cervical spine were normal.    It  was  not  until  after  the  May  11,  2022,  work-related \nincident  that  the  cervical  spine  abnormalities  were  revealed.    Here,  both  the  Claimant  and  her \nhusband credibly testified that she was “reinjured” in May. The Claimant returned to Sherwood \nUrgent  Care  on  April  21  and  stated  her  symptoms  had  resolved  and  the  ROM  in  her  neck  was \nnormal.  At that time, medical staff instructed the Claimant to return for a follow-up visit to the \nSherwood Urgent Care Clinic to get clearance to return to work.  However, the Claimant failed to \nreturn  to  the  clinic  as  directed  to  obtain  clearance  to  return  to  work.    More  importantly,  the \nClaimant  did  not  seek  further  medical  treatment/follow-up  care  until  after  the  May  11  lifting \nincident.  Hence, the Claimant continued working her regular full-time and even more laborious \nemployment duties for Milligan Racing after the April 16 incident and did not stop working until \nafter the second incident in May.   \nB. Medical Benefits \nAn employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn. § 11-9-508(a).   \nThe  Claimant  proved  that  the  treatment  of  record  that  she  received  for  her  neck  injury \nduring  the  April  18  and  21,  2022  visits  to  Sherwood  Urgent  Care  were  reasonably  necessary \ntreatment for diagnosing and evaluating her compensable neck injury of April 16, 2022. On April \n21, the Claimant returned to the clinic for follow-up care and indicated her symptoms had resolved \n\nBeals- H204976 \n \n26 \n \nand the ROM in her neck was normal.  At that time, they directed the Claimant to return for a \nfollow-up visit for clearance to return to  work.   However, the Claimant became non-compliant \nand failed to return for a follow-up visit to get clearance to return to full duty work.  Moreover, \nno doctor has recommended any further treatment for the Claimant’s neck injury of April 16, \n2022.  Hence, the Claimant did not seek additional treatment for her neck until after the second \nincident, which occurred on May 11.  \nBased on the foregoing, I find the Claimant failed to prove her entitlement to any further \ntreatment for her neck injury, including the care recommended by Dr. John Pace.   \nI recognize that it is well-established in workers’ compensation law that a Claimant may \nbe entitled to ongoing medical treatment after the healing period has ended.  However, I do not \nfind that to be the case in this instance.      \nTherefore, I find that the Respondents are liable for the aforementioned medical treatment \nof record, namely, the two visits to Sherwood Urgent Care on April 18, and April 21, 2022.    \nC.  Temporary Total Disability Compensation  \nHere, the Claimant contends that she is entitled to temporary total disability benefits for \nher neck injury of April 16, 2022, beginning on May 13, 2022, and continuing until January 13, \n2023.     \nAn injured employee for an unscheduled injury is entitled to temporary total disability \ncompensation during the time that she is within her healing period and totally incapacitated from \nearning wages.  Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. \n244,  613  S.W.2d  392  (1981).    The  healing  period  is  that  period  for  healing  of  the  injury  which \ncontinues until the employee is as far restored as the permanent character of the injury will permit.  \n\nBeals- H204976 \n \n27 \n \nNix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  If the underlying condition \ncausing the disability has become stable and nothing further in the way of treatment will improve \nthat  condition,  the  healing  period  has  ended. Id.    Temporary  total  disability  cannot  be  awarded \nafter the Claimant’s healing period has ended.  Trader v. Single Source Transportation, Workers’ \nCompensation Commission E507484 (February 12, 1999). \n The  Claimant  failed  to  prove  her  entitlement to  any  temporary  total  disability  for  her \ncompensable cervical injury of April 16, 2022, because she was never totally incapacitated from \nearning her regular wages.       \n Of significant importance is the fact that although the Claimant was placed on light duty \nfollowing her April 16, 2022, work-related neck injury, the Claimant admitted that she continued \nworking for Mr. Milligan, performing her regular duties, and receiving her regular pay until her \nemployment ended with him in May 2022.  At that point, according to the Claimant’s testimony \nand that of her husband, she was injured a second time while moving a fridge or dryer.  However, \nthis injury is not a claim presently before the Commission. \nMoreover, I find that the Claimant’s healing period for her neck injury ended no later than \nApril 21, 2022.  At that point, the Claimant reported to the medical staff at the urgent care clinic \nthat her symptoms had resolved.  In addition to this, the Claimant failed to return to the clinic for \na follow-up visit to get clearance for work as instructed.  Hence, the Claimant failed to meet the \nrequirements of the waiting period under Ark. Code Ann. §11-9-501(a); AWCC Rule 099.09.   \nAccordingly, I find that the Claimant failed to prove her entitlement to any temporary total \ndisability compensation for her cervical spine injury of April 16, 2022.   \nIn  light  of  the  foregoing,  the  issue  relating  to a controverted attorney’s  fee  has  been \nrendered moot and discussed in this Opinion.        \n\nBeals- H204976 \n \n28 \n \n                AWARD \nThe Claimant proved that she sustained a compensable injury to her cervical spine on  \nApril 16, 2022.  Also, the Claimant proved her entitlement to the medical treatment of record that \nshe received on April 18 and 21, 2022 her compensable neck injury of April 16, 2022.   However, \nthe Claimant failed to prove her entitlement to any temporary total disability compensation.   \nTherefore, the issue relating to a controverted attorney’s fee has been rendered moot and \nnot addressed in this Opinion.   \nAll issues not litigated herein are reserved under the Act.        \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE","textLength":55295,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H204976 LYNA M. BEALS, EMPLOYEE CLAIMANT MILLIGAN RACING (ALLEN MILLIGAN), EMPLOYER RESPONDENT LIBERTY MUTUAL INSURANCE CORPORATION, INSURANCE CARRIER RESPONDENT LIBERTY MUTUAL GROUP, THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT OPINION FILED APRIL 19, 2023 H...","outcome":"denied","outcomeKeywords":["granted:1","denied:3"],"injuryKeywords":["neck","shoulder","knee","wrist","back","cervical","concussion","rotator cuff"],"fetchedAt":"2026-05-19T23:08:39.521Z"},{"id":"alj-H204469-2023-04-18","awccNumber":"H204469","decisionDate":"2023-04-18","decisionYear":2023,"opinionType":"alj","claimantName":"Norma Beeney","employerName":"Tyson Poultry, Inc","title":"BEENEY VS. TYSON POULTRY, INC. AWCC# H204469 APRIL 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BEENEY_NORMA_H204469_20230418.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BEENEY_NORMA_H204469_20230418.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H204469 \n \n \nNORMA BEENEY, Employee                                                                         CLAIMANT                         \n \nTYSON POULTRY, INC., Employer                                                         RESPONDENT                        \n \nTYNET CORPORATION, Carrier/TPA                                                     RESPONDENT                          \n \n \n OPINION/ORDER FILED APRIL 18, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by LAUREN SCROGGINS, Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This  case  comes  on  for  review  following  a  hearing  on  respondent’s  Motion  to \nDismiss. \n Claimant suffered an admittedly compensable injury to her ankle on June 18, 2022.  \nClaimant filed Form AR-C on June 21, 2022 requesting various compensation benefits.  \nNo further action was taken and no hearing was requested.  As a result, respondent filed \na motion to dismiss this claim on February 7, 2023.  A hearing on respondent’s motion \nwas scheduled for April 17, 2023.  Notice of the hearing was sent to claimant by certified \nmail and was delivered on March 9, 2023.  Claimant did not appear at the hearing and \nhas  not  responded  to  the  respondent’s  motion.    Counsel  for  respondent  indicated  that \nclaimant  had  contacted  their  office  and  indicated  that  she  had  no  objection  to  the \n\nBeeney – H204469 \n \n2 \n \ndismissal and would not be attending the hearing. \n After  my  review  of  the  respondent’s  motion,  the  claimant’s  failure  to  respond \nthereto,  and all  other  matters  properly  before  the  Commission,  I  find  that  respondent’s \nmotion to dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2142,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H204469 NORMA BEENEY, Employee CLAIMANT TYSON POULTRY, INC., Employer RESPONDENT TYNET CORPORATION, Carrier/TPA RESPONDENT OPINION/ORDER FILED APRIL 18, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansa...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T23:08:33.194Z"},{"id":"alj-G109153-2023-04-18","awccNumber":"G109153","decisionDate":"2023-04-18","decisionYear":2023,"opinionType":"alj","claimantName":"Whitney Harder","employerName":"Washington Regional Medical Center","title":"HARDER VS. WASHINGTON REGIONAL MEDICAL CENTER AWCC# G109153 APRIL 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HARDER_WHITNEY_G109153_20230418.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARDER_WHITNEY_G109153_20230418.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. G109153 \n \nWHITNEY HARDER, Employee        CLAIMANT \n \nWASHINGTON REGIONAL MEDICAL CENTER, Employer RESPONDENT \n \nRISK MANAGEMENT RESOURCES, Carrier/TPA   RESPONDENT \n \n \n OPINION FILED APRIL 18, 2023  \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n       \nClaimant represented by JARID M. KINDER, Attorney at Law, Fayetteville, Arkansas; although \nwaiving appearance at the hearing. \n \nRespondent represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \nOn  June  4,  2020,  Jarid  M.  Kinder,  claimant’s  attorney,  filed  a  Form AR-C  requesting \nvarious   compensation   benefits;   however,   no   hearing   was   requested.      A   review   of   the \nCommission  file  indicates  that  a  Motion  to  Dismiss  was  filed  by  the  respondents  on  May  26, \n2021,  requesting  the  claim  be  dismissed  for  lack  of  prosecution.  Mr.  Kinder  filed  a  hearing \nrequest on behalf of the claimant on June 30, 2021. The Motion to Dismiss was held in abeyance \nand a hearing was held on December 7, 2021. An opinion was filed on March 4, 2022, and a Full \nCommission opinion was filed on August 17, 2022. \nA  Motion  to  Dismiss  was  filed  by  the  respondents  on  September  26,  2022,  again \nrequesting  the  claim  be  dismissed  for  lack  of  prosecution.  The  scheduling  of  the  Motion  to \nDismiss  hearing  was  delayed  due  to  a  mileage  issue.  Mr.  Kinder  sent  an  email  on  January  6, \n2023, indicating all issues had been resolved and the claimant had no objection to the dismissal \n\n \nwithout  prejudice.  A  hearing  notice  was  sent  to  all  parties  on  January  11,  2023,  setting  this \nmatter  for  a  dismissal  hearing  on  February  28,  2023.  On  February  27,  2023,  Mr.  Kinder \nconfirmed via email that the claimant had  received the notice of hearing  and that  all issues had \nbeen resolved. Both he and the claimant waived their appearance at the hearing. \nGiven the claimant’s response in this matter as set forth by Mr. Kinder in his email dated \nFebruary  27,  2023,  indicating  that  the  claimant  had  no  objection  to  the  dismissal  of  this  claim \nwithout prejudice, I find that it is appropriate to dismiss this claim.  \nAfter my review of respondents’ Motion to Dismiss and all other matters properly before \nthe Commission, I  find that respondents’ Motion to Dismiss this claim should be and hereby is \ngranted pursuant to Commission Rule 099.13. This dismissal is without prejudice.   \n IT IS SO ORDERED.    \n      ________________________________ \n      HONORABLE ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2857,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. G109153 WHITNEY HARDER, Employee CLAIMANT WASHINGTON REGIONAL MEDICAL CENTER, Employer RESPONDENT RISK MANAGEMENT RESOURCES, Carrier/TPA RESPONDENT OPINION FILED APRIL 18, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington ...","outcome":"dismissed","outcomeKeywords":["dismissed:10","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:08:35.254Z"},{"id":"alj-G908302-2023-04-18","awccNumber":"G908302","decisionDate":"2023-04-18","decisionYear":2023,"opinionType":"alj","claimantName":"Gary Winn","employerName":"Conley Transport Ii, Inc","title":"WINN VS. CONLEY TRANSPORT II, INC. AWCC# G908302 APRIL 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WINN_GARY_G908302_20230418.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WINN_GARY_G908302_20230418.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G908302 \n \nGARY LEON WINN (Dec’d), EMPLOYEE     CLAIMANT \n \nCONLEY TRANSPORT II, INC. EMPLOYER            RESPONDENT  \n \nCHEROKEE INSURANCE COMPANY,  \nCARRIER/TPA             RESPONDENT    \n         \nOPINION FILED APRIL 18, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas, on April 18, 2023. \n \nClaimant is represented by Phillip Wells, Attorney-at-Law, of Jonesboro, Arkansas, \nwho  waived  the  right  to  appear  after  discussing  the  matter  with  family  members \nand confirming that the claimant is deceased. \n \nRespondents are represented by R. Scott Zuerker , Attorney-at-Law, of Fort Smith, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the above  styled  matter  on  April  18,  2023,  in  Little  Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant passed away on January 7, 2023.  The claimant’s death \nwas determined to not be related to the accepted workers’ compensation injury where the \nclaimant had been determined totally disabled.  An AR-C form had been filed on or about \nJanuary  27,  2020,  alleging  that  the  claimant  had  sustained  a  work-related  injury  on \nNovember  25,  2019.  More  than  six  (6)  months  have  passed  since  the  claimant’s  last \nactions  in  this  matter.    A  request  for  the  matter  to  be  dismissed  was  made  by  the \nrespondents  on  March  9, 2023,  and  the  claimant’s  representative  filed  a  response, \nwaiving the right to appear and affirmatively stating that the claimant was deceased.   \n\nWINN – G908302 \n \n2 \n \nA hearing was set for April 18, 2022, after proper notice to the parties, in regard to \nthe Motion to Dismiss.  The claimant and his representative did not appear at the hearing.  \nAt  the  time  of  the  hearing,  Scott  Zuerker  appeared  on  behalf  of  the  respondents and \nasked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed with prejudice. \nORDER \n \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed with prejudice at this time.   \nIT IS SO ORDERED: \n \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2773,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G908302 GARY LEON WINN (Dec’d), EMPLOYEE CLAIMANT CONLEY TRANSPORT II, INC. EMPLOYER RESPONDENT CHEROKEE INSURANCE COMPANY, CARRIER/TPA RESPONDENT OPINION FILED APRIL 18, 2023 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:08:37.325Z"},{"id":"alj-H109157-2023-04-14","awccNumber":"H109157","decisionDate":"2023-04-14","decisionYear":2023,"opinionType":"alj","claimantName":"James Hamilton","employerName":"Maxus Properties, Inc","title":"HAMILTON VS. MAXUS PROPERTIES, INC. AWCC# H109157 APRIL 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Hamilton_James_H109157_20230414.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Hamilton_James_H109157_20230414.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109157 \n \n \nJAMES HAMILTON, EMPLOYEE CLAIMANT \n \nMAXUS PROPERTIES, INC., \nEMPLOYER RESPONDENT \n \nACCIDENT FUND INS. CO. AMER., \nCARRIER RESPONDENT \n \n \nOPINION FILED APRIL 14, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on April 12, 2023, \nin Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Ms.  Karen  H.  McKinney,  Attorney  at  Law,  Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This matter comes before the Commission on a Motion to Dismiss filed by \nRespondents.  A hearing on the motion was conducted on April 12, 2023, in Little \nRock, Arkansas.   Claimant, who is pro se, appeared at the hearing and testified.  \nWithout  objection,  the  Commission’s  file  on  the  claim  has  been  incorporated \nherein  in  its  entirety  by  reference.  Also  admitted  into  evidence  was  Claimant’s \nExhibit  1,  a  one-page  handwritten,  undated  letter\n1\n  by  Claimant  addressed  to  the \nCommission;  and  Respondents’  Exhibit  1,  pleadings,  correspondence  and  forms \nrelated to this claim, consisting of nine pages. \n \n1\nThis is the October 28, 2022, letter discussed infra. \n\nHAMILTON – H109157 \n \n2 \n \n The record reflects the following procedural history: \n Per the First Report of Injury or Illness filed November 17, 2021, Claimant \npurportedly  suffered  an  injury  to  his  shoulder on March  3, 2021, while  shoveling \nsnow  at  work.  According  to  the  Form  AR-2  filed  on  November  17,  2021, \nRespondents  accepted   the   claim   and   paid  medical   and   indemnity   benefits \npursuant thereto. \n Through  then-counsel Laura Beth York on April 22, 2022, Claimant filed a \nForm  AR-C,  alleging  that  he  injured  his  right  shoulder “and other whole  body”  at \nwork on February 15, 2021.  However, no hearing request accompanied the form.  \nYork moved to withdraw on October 18, 2022.  In an order entered on October 28, \n2022, the Full Commission granted the motion under AWCC Advisory 2003-2. \n In  a  handwritten  letter  to  the  Commission  received  by  it  on  October  28, \n2022, Claimant wrote: \nI  James  Hamilton  agreed  with  Laura  Beth  York’s  assistant  on  a \nphone  call  I  receive[d]  from  the  Law  Firm  that  they  resigned  from \nrepresenting  me  that  the  other  company  settled  [the]  issue.    No \nother action is required from me. \n \n The  record  reflects  that  nothing  further  took  place  on  the  claim  until \nJanuary  24,  2023.   On  that  date,  Respondents’  counsel  filed  the  instant  motion, \nasking  for  dismissal  of  the  claim  because  Claimant  has  not  requested  a  hearing \nwithin six months of the filing of his claim, as required by Ark. Code Ann.  § 11-9-\n702(d)  (Repl.  2012).    On  January  25,  2023,  my  office  wrote  Claimant  counsel, \nasking for a response to the motion  within twenty (20) days.  The letter was sent \n\nHAMILTON – H109157 \n \n3 \n \nvia first-class and certified mail to the address for Claimant listed on his Form AR-\nC.   “Melody  DeLong” signed  for  the  certified  letter on  January  27, 2023;  and  the \nfirst-class  letter  was  not  returned.    Regardless,  no  response  to  the  motion  was \nforthcoming.  On March  2,  2023,  a hearing  on  the  Motion  to  Dismiss  was \nscheduled  fo r  April  12,  2023,  at  11:30  a.m.  at  the  Commission  in  Little  Rock, \nArkansas.  The Notice of Hearing was sent by certified and first-class mail to the \nsame address as before.  Someone with the surname of “Hamilton” signed for the \ncertified  letter  on  March  6,  2023;  and  the  first-class  letter  was  not  returned.  \nClaimant testified that he received this notice. \n The hearing on the Motion to Dismiss proceeded as scheduled on April 12, \n2023.    Again, Claimant appeared at the hearing.  He took the stand and testified \nthat he does not object to dismissal of the claim,  that Respondents have paid all \nof  his  benefits,  and  that  there  is  nothing  to  address  in  a  hearing.    Respondents \nappeared through counsel and argued for dismissal under AWCC R. 099.13 and \nArk. Code Ann. § 11-9-702(d) (Repl. 2012). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n\nHAMILTON – H109157 \n \n4 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC R. 099.13 reads: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal  of the \nclaim–by  a  preponderance  of  the  evidence.    This  standard  means  the  evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n\nHAMILTON – H109157 \n \n5 \n \n As shown by the evidence recounted above, (1) the parties  were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it  since  the  filing  of  the  Form  AR-C  on  April  22,  2022.    Thus,  the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the applicability of Ark. Code Ann. § 11-\n9-702(d) (Repl. 2012). \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co.,  2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629  S.W.2d  284  (1982)).  Respondents  at  the  hearing  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of this claim should be and hereby is entered without prejudice.\n2\n \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nHAMILTON – H109157 \n \n6 \n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7842,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H109157 JAMES HAMILTON, EMPLOYEE CLAIMANT MAXUS PROPERTIES, INC., EMPLOYER RESPONDENT ACCIDENT FUND INS. CO. AMER., CARRIER RESPONDENT OPINION FILED APRIL 14, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on April 12, 2023, in Little Ro...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:08:30.960Z"},{"id":"alj-H205333-2023-04-13","awccNumber":"H205333","decisionDate":"2023-04-13","decisionYear":2023,"opinionType":"alj","claimantName":"James Reese","employerName":"Cracker Barrel Old Country Store","title":"REESE VS. CRACKER BARREL OLD COUNTRY STORE AWCC# H205333 APRIL 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Reese_James_H205333_20230413.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Reese_James_H205333_20230413.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H205333 \n \n \nJAMES F. REESE, EMPLOYEE   CLAIMANT \n \nCRACKER BARREL OLD COUNTRY STORE, \n SELF-INSURED EMPLOYER RESPONDENT \n \nCANNON COCHRAN MGMT. SVCS., INC., \n THIRD PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED APRIL 13, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  April 12, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr.  Eric  Newkirk,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  Respondents’ Motion  to \nDismiss.    The  record  consists  of  Commission  Exhibit  1,  the  February  7,  2023, \nPrehearing Order. \n This  matter  was  set  for  hearing  on  the  merits  of  the  claim  for  April 12, \n2023, at  9:30 a.m. at the  Commission in Little Rock.  The following issues were \nto have been litigated: \n1. Whether Claimant sustained compensable injuries to his upper and \nlower back, right arm, and right hand by specific incident, or in the \nalternative, by gradual onset. \n\nREESE – H205333 \n2 \n \n2. Whether Claimant is entitled to  reasonable and necessary medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits. \nAll other issues were reserved.  Claimant was to testify.  Respondents intended \nto  call  Leanna  Bearden—who  appeared  at  the  hearing.    However,  Claimant  did \nnot  appear.    Several  minutes  had  elapsed  after  the  appointed  time  for  the \nhearing,  I  opened  the  record  to  make  note  of  his  failure  to  appear  and  to  hear \nfrom Respondents.  Review of the record confirmed that the Commission utilized \nthe correct address in sending Claimant a copy of the Prehearing Order.  I noted \nthat  I  had  observed  Claimant  at  the  Commission  in  the  past,  when  he had \ntestified in the same courtroom in a hearing on a joint petition of a different claim; \nand that he had been personally advised during the February 6, 2023, prehearing \ntelephone conference of the date, time, and location of the hearing on this claim. \n Based   upon   Claimant’s   non-appearance,   Respondents   moved   for   a \ndismissal  of  the  claim  pursuant  to  AWCC  R.  099.13.    I  took  the  motion  under \nadvisement,  and  noted  before  closing  the  record  that  it  was  approximately  30 \nminutes past when the full hearing had supposed to begin. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact  and \nconclusions of law are hereby made in accordance with Ark. Code Ann. § 11-9-\n704 (Repl. 2012): \n\nREESE – H205333 \n3 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. Claimant has failed to prosecute this claim. \n3. Claimant  was  provided  reasonable  notice  of  the  April 12,  2023, \nhearing, at which time the Motion to Dismiss was heard. \n4. Dismissal of this claim is warranted under AWCC R. 099.13. \n5. This  claim  is  hereby  dismissed without  prejudice  under  AWCC  R. \n099.13. \nIII.  DISCUSSION \n Under AWCC R. 099.13, \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n As shown by the evidence, Claimant without good cause failed to appear \nat  the  merits  hearing  on  this  claim,  where  he  was  to  have  testified  and  had  the \nburden  of  proof  on  the  stated  issues  in  the  Prehearing  Order.    He  received \nreasonable notice of this hearing from the Commission.  Claimant was unready, \nwithout  justification,  to  litigate  his  claim.    The  evidence  thus  shows  that he  has \nfailed  to  prosecute  his  claim,  and  that  reasonable  notice  of  the  proceeding  was \nprovided  to  him.    No  evidence  has  been  brought  to  the  attention  of  the \n\nREESE – H205333 \n4 \n \nCommission that would excuse his failure to appear at his own hearing.  Hence, \ndismissal of the instant claim is justified under Rule 13.  Respondents’ motion is \nhereby granted. \n That  leaves  the question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer Co.,  2005  AR Wrk.  Comp. \nLEXIS  5  10,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”  (Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v.  Strong, \n75  Ark.  249,  629  S.W.2d  284  (1982)).  Respondents  at  the hearing  asked  for  a \ndismissal  with  prejudice.    But  based  on  the  above  authorities, I  find  that  the \ndismissal of this claim should be and hereby is entered without prejudice.\na\n \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \na\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":5749,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H205333 JAMES F. REESE, EMPLOYEE CLAIMANT CRACKER BARREL OLD COUNTRY STORE, SELF-INSURED EMPLOYER RESPONDENT CANNON COCHRAN MGMT. SVCS., INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED APRIL 13, 2023 Hearing before Chief Administrative Law Judge O. M...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:08:28.899Z"},{"id":"alj-H205301-2023-04-12","awccNumber":"H205301","decisionDate":"2023-04-12","decisionYear":2023,"opinionType":"alj","claimantName":"Paula Stuhan","employerName":"Tyson Poultry, Inc","title":"STUHAN VS. TYSON POULTRY, INC. AWCC# H205301 APRIL 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/STUHAN_PAULA_H205301_20230412.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"STUHAN_PAULA_H205301_20230412.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H205301 \n \nPAULA STUHAN, Employee                                                                           CLAIMANT \n \nTYSON POULTRY, INC., Self-Insured Employer                                     RESPONDENT                         \n \n \n \n OPINION FILED APRIL 12, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents represented by JEREMY SWEARINGEN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On March 27, 2023, the above captioned claim came on for hearing at Fort Smith, \nArkansas.    A  pre-hearing  conference  was  conducted  on  January  18,  2023  and  a  pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The employee/employer relationship existed between the parties at all relevant \ntimes, including August 4, 2020. \n Subsequent  to  the  pre-hearing  conference  the  parties  agreed  to  stipulate  that \nclaimant  earned  an  average  weekly  wage  of  $580.14  which  would  entitle  her  to \ncompensation at the rate of $387.00 per week for total disability benefits. \n\nStuhan – H205301 \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Compensability of injury to claimant’s eyes. \n2.  Payment of medical. \n The claimant contends that as a result of her having to wear a mask she developed \nspasming in her eyes which resulted in the need for medical treatment. \n The  respondent  contends  the  claimant  cannot  prove that  her  alleged  symptoms \nconstitute  a  compensable  injury  under  the  Arkansas  Workers’  Compensation  Act.  \nRespondent  contends,  in  the  alternative,  that  the  medical  benefits  claimed  are  neither \nreasonably necessary not related to any compensable injury or condition.  Respondent \ncontends, in the alternative, that if the claimant incurred medical expenses or temporary \ntotal  disability  prior  to  the  time  she  gave  notice  of  an  alleged  work related  injury  or \ncondition to respondent, then any pre-notice benefits incurred would not be the liability of \nrespondent (if the claim were even compensable). \n From a review of the record as a whole, to include medical reports, documents, \nstipulated testimony, and other matters properly before the Commission, and having had \nan  opportunity  to  hear  the  testimony  of  the witness  and  to  observe her  demeanor,  the \nfollowing findings of fact and conclusions of law are made in accordance with A.C.A. §11-\n9-  704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1.  The stipulations agreed to by the parties at a pre-hearing conference conducted  \non January 18, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact.    \n\nStuhan – H205301 \n \n3 \n \n2.     The parties’ stipulation that claimant earned an average weekly wage of \n$580.14 which would entitle her to compensation at the rate of $387.00 per week for total \ndisability benefits is also hereby accepted as fact. \n 3.   Claimant has failed to meet her burden of proving by a preponderance of the \nevidence  that  she  suffered  a  compensable  injury  to  her  eyes  while  employed  by \nrespondent. \n \n FACTUAL BACKGROUND \n The claimant is 62 years old and she began working for respondent as a bagger \noperator approximately sixteen years ago.  Claimant’s job duties included maintaining the \nbagger so that product was put into the bag in the correct  amount and with the proper \ndate.  Claimant testified that while running a particular product the employees were given \nthe option of whether to wear a mask or not.  As for her decision, she stated: \n  Sometimes I would wear one, sometimes I wouldn’t \n  because sometime it would give me trouble.  Some- \n  times it wouldn’t.  It would be a burning, stinging, \n  kind of a puffy type of feeling, but nothing bad.  Go \n  home, you’re good again the next day. \n \n \n At  some  point  during  the  Covid  pandemic  all  employees  were  required  to  wear \nmasks.  Claimant testified: \n  But when the rule was you couldn’t wear the N95 \n  and you had to wear the regular mask, that’s when \n  I started having problems.  I didn’t know what it was, \n  but it was an annoyance.  It wasn’t that bad.  You go \n  home.  Problems went away.  Come back the next    \n  day, troubles again.  Not bad. \n \n  As time grew, so did the problem.  I would go home  \n  and it would take longer for my eyes to recover.  I \n\nStuhan – H205301 \n \n4 \n \n  would go back to work, seemed a little more of a \n  problem, so this just kept increasing. \n \n  \nClaimant testified that as time progressed her condition worsened and that at some \npoint  she  was  informed  that  she  needed  cataract  surgery  and  she  underwent  that \nprocedure on both eyes.  After the cataract surgery her eye condition again worsened.   \n The  medical  records  submitted  into  evidence  are  somewhat  sporadic  but  do \nindicate that claimant was seen by Dr. Aniket Sakharpe at Mercy Clinic on June 23, 2021.  \nDr. Sakharpe noted that claimant had been diagnosed as suffering from blepharospasm \nby  Dr.  Renner  and  had  been  asked  to  provide  an  evaluation  from  a  plastic  surgeon \nperspective.  Dr. Sakharpe noted that claimant’s twitching became more apparent when \nshe was exposed to bright lights and suggested that claimant use tinted lenses to see if \nthat relieved any of her symptoms.  Dr. Sakharpe agreed with Dr. Renner that claimant \nwould not be a good candidate for Botox injections.   \n On August 12, 2021, claimant was evaluated by Dr. Daniel Sines at Boozman-Hof \nRegional Eye Center.  Dr. Sines noted that claimant has had blepharospasm for over a \nyear and that claimant indicated that it had gotten worse after cataract surgery in March \n2021.  Dr. Sines recommended and scheduled Botox injections, but on August 13, 2021 \nclaimant called and canceled the scheduled injections.   \n On December 2, 2021, claimant was evaluated by Dr. Timothy Booker, neurologist.  \nDr.  Booker  noted  that  claimant  did  not  wish  to  undergo  Botox  injections and  he \nrecommended an MRI scan of the brain.  The MRI was performed on December 18, 2021, \nand was read as showing: \n\nStuhan – H205301 \n \n5 \n \n  IMPRESSION: \n   \n1.   Scattered areas of increased inguinal in the white \n matter bilaterally compatible with age related white \nmatter disease.  No acute abnormalities are seen. \n \n \n Claimant  returned  to  Dr.  Booker  on  April  14,  2022,  and  he  noted  that  the  MRI \nrevealed  scattered  white  matter  consistent  with  aging,  but  no  acute  findings.    He also \nnoted that claimant no longer had to wear a  mask at work and since that time claimant \nno longer had any symptoms. \n Claimant has filed this claim contending that she suffered compensable injuries to \nher eyes as a result of wearing a mask at work.  She requests payment of medical benefits \nfor that condition. \n \nADJUDICATION \n Claimant contends that wearing a mask while working for respondent  resulted in \nblepharospasm in her eyes.  Claimant does not attribute this condition to a specific injury, \nbut rather to the ongoing wearing of a mask.  Documentary evidence submitted by the \nclaimant indicates that Benign Essential Blepharospasm is “a movement disorder of the \neyelids affecting an estimated 5 out of every 100,000 people.  BEB is a condition in which \nuncontrolled  blinking,  squeezing,  and  eyelid  closure  occur  in  both  eyes without  an \napparent environmental cause.  ‘Benign’ indicates the condition is not life-threatening and \n‘essential’  means  that  it  occurs  on  its  own  without  outside  stimulation.”  Claimant’s \ndiagnosis of blepharospasm is in the nature of an occupational disease.  \n An “occupational disease” is defined as any disease that results in disability and \n\nStuhan – H205301 \n \n6 \n \n“arises  out  of  and  in  the  course  of  the  occupation  or  employment  of  the  employee  or \nnaturally  follows  or  unavoidably  results  from  an  injury.”  A.C.A.  §11-9-601(e)(1)(A).  \nClaimant  has  the  burden  of  proving by  a preponderance  of  the  evidence  that a  causal \nconnection exists between the occupation or employment and the occupational disease.  \nA.C.A. §11-9-601(e)(1)(B).   \n After reviewing the evidence in this case impartially, without giving the  benefit of \nthe doubt to either party, I find that claimant has failed to meet her burden of proof.   \n In order to prove a compensable injury claimant must show, by the greater weight \nof   the   credible   evidence,   the   presence   of   a   causal   relationship   between   her \nblepharospasm and the wearing of a mask at work.  Basically, claimant relates her eye \nsymptoms  to  the  wearing  of  a  mask  at  work  because  her  symptoms  began after  she \nbegan wearing a mask and the symptoms went away when she no longer wore the mask.  \nI also note that based on stipulated testimony from various witnesses, that at some point \nclaimant  complained  to  her  supervisors  about  her  eye  spasms  and  that  she attributed \nthose problems to the wearing of a mask.   \n It is unclear exactly when the claimant’s problems with eye spasms began.  The \nhistory and the medical report of Dr. Sines dated August 12, 2021 indicates that claimant \nstated that she had suffered from blepharospasm for over a year and that it had worsened \nafter  cataract  surgery  in  March  2021.    This  would  indicate  that  her  problems  began  in \nearly 2021 or sometime in 2020.   \n The first medical report submitted into the record is dated June 23, 2021, from Dr. \nAniket Sakharpe who saw claimant for a plastic surgical evaluation.  That report contains \nthe following history: \n\nStuhan – H205301 \n \n7 \n \n  According to the patient she has been having the \n  symptoms for long [periods] of time she had this \n  cataract repair done after which this symptoms (sic) \n  have become much worse.  She initially noticed a \n  worsening of her some symptoms which was \n  described by the patient has (sic) pain in the eyes \n  after the cataract surgery when she used which \n  she will with a bright light reflecting into the eye. \n  Ever since that time the patient continues to have \n  the symptoms where she starts suddenly having \n  the bilateral eyes kind of twitch and close up on \n  her where she is now bumping into people.  These \n  twitching of the eyes and inability to see has been \n  bothering the patient there is no specific trigger \n  that she can remember.  There is no specific time \n  of the day that these symptoms are worse at \n  sometimes it is early in the morning sometimes \n  at night.  She denies any weakness of the eyes \n  [or] weakness in the eye at the end of the day. \n  She denies specifically that the bright light causing \n  more symptoms.   She denies any specific triggers \n  or alleviating factors.  According to the patient she \n  is used solar glasses but it did not seem to help \n  her as much.  Symptoms are present in a dark \n  room and at night as well as during bright part \n  of the day.  There is no specific time of the day \n  they are worse that.  (Emphasis added.) \n \n \n The report also contains the following observations: \n  The patient also has some chorionic twitching or \n  movement of the upper part of the face which is \n  bilateral.  This becomes more apparent when the \n  patient is exposed to bright lights.  Patient was  \n  wearing a [?] When we remove the cap and had \n  corrected her brow ptosis by fixing her brows her \n  symptoms of this chorionic movement started.   \n  There was nothing that we could [do to] make the \nsymptoms go away.  At this point we also took a  \npicture where she is having extreme spasm of all the \n  depressors of the brow as well as the upper eyelid. \n  There was no specific trigger for this.  (Emphasis \n  added.) \n \n\nStuhan – H205301 \n \n8 \n \n [It  should  be  noted  that  the  above  quotes  from  Dr.  Sakharpe’s  report  contain \nnumerous grammatical errors.  However, I do not  believe these errors materially affect \nthe significance of the history and observation as discussed immediately hereafter.] \n The history and observations of Dr. Sakharpe are significant for several reasons.  \nMost notably, there is no mention of the problems being caused by wearing a mask at \nwork or that the symptoms were worse when claimant was wearing a mask at work.  In \nfact,  the  history  in  Dr.  Sakharpe’s  report  indicates  that  claimant  denied  any  specific \ntriggers.  This  matches  the  definition  of  Benign  Essential  Blepharospasm  that these \nconditions occur “on its own without outside stimulation.”  This history is also important in \nnoting that at times claimant’s symptoms were worse early in the morning and other times \nat night.  Thus, there would have been no correlation with claimant’s wearing a mask at \nwork.  The observation portion of the report indicates that claimant developed symptoms \nwhile in the doctor’s office and there “was no specific trigger for this.” \n The next medical report is from Dr. Sines at Boozman-Hof Regional Eye Center.  \nHis report contains the following history: \n  Pt states she has had blepharospasm for over a \n  year.  Pt states blepharospasm it (sic) got worse \nafter cataract surgery in 3/2021.   \n \n \n Dr. Sines went on to indicate that claimant’s findings were consistent with Benign \nEssential Blepharospasm.  Again,  it is notable that Dr. Sines’ medical report contains no \nmention of claimant’s eye problems being related to wearing a mask at work. \n The first mention of a mask in the medical records is from Dr. Booker’s report of \nDecember 2, 2021 which states: \n\nStuhan – H205301 \n \n9 \n \n  Symptoms are as stated intermittent not particularly \n  related anything although in the beginning she thought \n  it may have been related to wearing her mask. \n  (Emphasis added.) \n \n \n Given Dr. Sines’ history in his report of August 12, 2021 that the blepharospasm \nhad been present for over a year, Dr. Booker’s report of December 2, 2021 would indicate \nthat the first medical report mentioning a mask would have been more than a year after \nthose symptoms began. \n In finding that claimant has failed to prove a causal connection, I also note that no \nphysician has opined that the blepharospasm was caused or could have been caused by \nthe  wearing  of  a  mask.    While  claimant  is  not  required  to  offer  medical evidence \nestablishing a causal connection, the lack of a treating physician’s opinion is a factor that \nmay be considered in determining whether claimant has met her burden of proof. \n In  summary,  while  claimant  believes  that  her  blepharospasm  is  related to  her \nwearing a mask at work, she has the burden of proving that a causal connection exists \nbetween  the  wearing  of  the  mask  and  her  blepharospasm.    Here,  claimant  has  been \ndiagnosed  as  suffering  from  Benign  Essential  Blepharospasm  and  according  to  the \ndefinition  submitted by  the  claimant  it  occurs  on  its  own  without  outside  stimulation.   It \napparently  can  be  a  normal  reaction  to  very  bright  lights  and  this  was  noted  in  Dr. \nSakharpe’s report of June 23, 2021.  In short, I find insufficient evidence of record proving \nthat there is a causal connection between claimant’s wearing of a mask at work and her \nBenign Essential Blepharospasm.   Therefore, I find that claimant has failed to meet her \nburden of proof.   \n \n\nStuhan – H205301 \n \n10 \n \nORDER \n \n Claimant  has  failed  to  meet  her  burden  of  proving  by  a  preponderance  of  the \nevidence  that  she  suffered  a  compensable  injury  to  her  eyes  while  employed  by \nrespondent.    Therefore,  her  claim  for  compensation  benefits  is  hereby  denied  and \ndismissed. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $341.45. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":16429,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205301 PAULA STUHAN, Employee CLAIMANT TYSON POULTRY, INC., Self-Insured Employer RESPONDENT OPINION FILED APRIL 12, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansas. Claimant appearing pro se. Respo...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:08:26.839Z"},{"id":"alj-H203191-2023-04-11","awccNumber":"H203191","decisionDate":"2023-04-11","decisionYear":2023,"opinionType":"alj","claimantName":"Brian Johns","employerName":"Kroger Limited Partnership I","title":"JOHNS VS. KROGER LIMITED PARTNERSHIP I AWCC# H203191 APRIL 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Johns_Brian_H203191_20230411.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Johns_Brian_H203191_20230411.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203191 \n \n \nBRIAN S. JOHNS, EMPLOYEE CLAIMANT \n \nKROGER LIMITED PARTNERSHIP I, \n SELF-INSURED EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MGMT. SVCS., \n THIRD PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED APRIL 11, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  April  7,  2023, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant,   represented  by  Mr.  Jim  R. Burton,  Attorney  at  Law,   Jonesboro, \nArkansas, not appearing. \n \nRespondents  represented  by  Ms.  Karen  H.  McKinney,  Attorney  at  Law,  Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  April  7,  2023,  in \nJonesboro, Arkansas.  Neither Claimant nor his counsel appeared at the hearing.  \nWithout objection, the Commission file on this claim has been incorporated herein \nin  its  entirety  by  reference.  Admitted  into  evidence  was  Respondents’  Exhibit  1, \nforms,  pleadings,  and  correspondence related  to  the  claim,  consisting  of 15 \npages. \n\nJOHNS – H203191 \n2 \n \n The record reflects the following procedural history: \n On  April  27, 2022,  a  Form  AR-1  was  filed  in  this  case,  reflecting  that \nClaimant purportedly suffered a fractured foot while operating a pallet jack at work \non June  22,  2021.    Per  the  Form  AR-2  that  was  filed on May  10,  2022, \nRespondents first denied, but later accepted, the claim as a medical-only one.  On \nMay  9,  2022,  Claimant—through  counsel—filed  a  Form  AR-C,  requesting  a  full \nrange of initial benefits in connection with the alleged June 22, 2021, incident.  No \nhearing request accompanied this filing.  Respondents’ counsel made her entry of \nappearance on May 13, 2022. \n Claimant’s counsel on May 17, 2022, wrote the Commission: \nThis  is  to  advise  you  I  have  been  in  contact  with  the  respondents’ \nattorney;  it appears  that  the  issues  raised  in  the  above ARC  filing, \nWCC No. H203191, are already encompassed in and relate back to \nan  earlier  filing  by  the  claimant,  specifically  a  crush/fracture  injury, \nleft   foot/ankle   dated   June   30,   2021,   in   WCC   No.   H105672.  \nRespondents  have  accepted  this  claim  as  compensable  and  have \npaid  temporary  total  disability  and  medical  expenses  up  to  the \npresent. \n \nAs  such,  this  is  to  request  that  our  AR-C  filing  in  WCC  No. \nH203191  be  withdrawn,  and  that  the  file  reflect  us  as  attorney  of \nrecord for the claimant in all future proceedings regarding WCC No. \nH105672. \n \nRespondents’   counsel   by   letter   on   May   17,   2022,   echoed   the   above \ncorrespondence,  representing  that  they  had  no  objection  to  Claimant  being \nallowed to withdraw his Form AR-C in the instant claim. \n But  the  Commission  has  not  found  that  claims  are  subject  to  non-suit—\nwhich a withdrawal of the Form AR-C would essentially constitute—under Ark. R. \n\nJOHNS – H203191 \n3 \n \nCiv.  P.  41.   See  Hooker  v.  E.C.  Rowlett  Const.  Co. et  al.,  2005  AR  Wrk.  Comp. \nLEXIS 38, AWCC No. F012906 (Full Commission Opinion filed February 8, 2005).  \nRegardless, no withdrawal of the claim form ever took place. \n On   November  29,   2022,   Respondents   filed  their   Motion   to  Dismiss.  \nTherein, they alleged  that dismissal of  the  claim  was  warranted  under  AWCC  R. \n099.13 and Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012) because Claimant \nhas  not  requested  a  hearing  on  this  claim  (which,  of  course,  stands  to  reason \nsince the injury alleged herein is the subject of a  separate claim).  On December \n8, 2022, my office wrote Claimant’s counsel, asking for a response to the motion \nwithin 20 days.  No response thereto was forthcoming, however. \n On  February  3,  2023  ,  a  hearing  was  scheduled  on  the  Motion  to  Dismiss \nfor April 7, 2023, at 10:30 a.m. at the Craighead County Courthouse in Jonesboro.  \nThe  hearing  notice  was  sent  to  Claimant  by  certified  and  first-class  mail  to the \naddress listed for him in his Form AR-C and in the Commission’s file.  His counsel \nwas  notified  by  first-class  mail  as  well.    The  certified  letter  was  returned  to  the \nCommission, unclaimed, on March 21, 2023, while the first-class letter to Claimant \nwas  never  returned.    The letter  to  his  attorney  was  not  returned,  either.    The \nevidence thus preponderates that Claimant received notice of the hearing. \n The  hearing  proceeded  as  scheduled  on  April  7,  2023.    Again,  Claimant \nand  his  counsel  failed  to  appear  at  the  hearing.    But  Respondents  appeared \nthrough their attorney and argued for dismissal under the foregoing authorities. \n\nJOHNS – H203191 \n4 \n \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby  dismissed \nwithout prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nmatter–by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \n\nJOHNS – H203191 \n5 \n \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the April 7, 2023, hearing to argue against its \ndismissal)  since  the  May  9,  2022,  filing  of  the  Form  AR-C.    Thus,  the  evidence \npreponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(emphasis  added)(citing Professional  Adjustment  Bureau  v.  Strong,  75  Ark.  249, \n629 S.W.2d 284 (1982)).  Respondents at the hearing asked for a dismissal with \nprejudice.    But  based  on  the  above  authorities, I  find  that  the  dismissal  of  this \nclaim should be and hereby is entered without prejudice. \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7780,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H203191 BRIAN S. JOHNS, EMPLOYEE CLAIMANT KROGER LIMITED PARTNERSHIP I, SELF-INSURED EMPLOYER RESPONDENT SEDGWICK CLAIMS MGMT. SVCS., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED APRIL 11, 2023 Hearing before Administrative Law Judge O. Milton Fine II o...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["back","fracture","ankle"],"fetchedAt":"2026-05-19T23:08:22.718Z"},{"id":"alj-H003953-2023-04-11","awccNumber":"H003953","decisionDate":"2023-04-11","decisionYear":2023,"opinionType":"alj","claimantName":"Samuel Tilotta","employerName":"Dollar General","title":"TILOTTA VS. DOLLAR GENERAL AWCC# H003953 APRIL 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TILOTTA_SAMUEL_H003953_20230411.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TILOTTA_SAMUEL_H003953_20230411.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H003953 \n \nSAMUEL TILOTTA, Employee          CLAIMANT \n \nDOLLAR GENERAL, Employer        RESPONDENT \n \nYORK RISK SERVICES GROUP, INC., Carrier/TPA     RESPONDENT \n \n \n OPINION FILED APRIL 11, 2023 \n \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by DAVID C. JONES, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  October  3,  2021,  the  claimant’s  previous  attorney,   Laura  Beth  York,  filed  a \nPrehearing  Questionnaire  with  the  Commission  requesting  a  hearing  on  the  claimant’s  right  to \nreceive permanent partial disability benefits. The hearing request was withdrawn by Ms. York on \nOctober  5,  2021,  indicating  issues  had  been  resolved.  Ms.  York  filed  a  Motion  to  Withdraw  as \nCounsel  with  the  Commission  on  October  13,  2021.  October  29,  2021,  the  Full  Commission \nentered an Order allowing her to withdraw as Claimant’s counsel. No further action was taken on \nthis claim. \n On  November  30,  2022,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim  be  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for  February  2,  2023. \nNotice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on \nDecember 21, 2022. United States Postal Department records indicate that claimant received and \n\n \n \n-2- \nsigned  for  the  notice  on  December  28,  2022.  On  January  3,  2023,  Claimant  notified  the \nCommission  that  he  wished  to  request  a  hearing  for  additional  benefits,  but  later  decided  to \nwithdraw   that   request   and   submitted   a   Withdrawal   of   Hearing   Request   and   Waiver   of \nAppearance with the Commission on January 24, 2023. Due to inclement weather, the Motion to \nDismiss hearing was rescheduled to March 2, 2023. \nAfter  a  review of  the  respondents’  Motion  to  Dismiss,  the  claimant’s lack  of  desire  to \npursue  his  claim,  and  his  waiver  of  appearance  at  the  scheduled  hearing,  as  well  as  all  other \nmatters properly before the Commission, I find that the respondents’ Motion to Dismiss should \nand hereby is granted pursuant to Commission Rule 099.13. This dismissal is without prejudice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2594,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H003953 SAMUEL TILOTTA, Employee CLAIMANT DOLLAR GENERAL, Employer RESPONDENT YORK RISK SERVICES GROUP, INC., Carrier/TPA RESPONDENT OPINION FILED APRIL 11, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arka...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:08:24.778Z"},{"id":"alj-H104834-2023-04-06","awccNumber":"H104834","decisionDate":"2023-04-06","decisionYear":2023,"opinionType":"alj","claimantName":"Kellis Hellums","employerName":"Area Agency On Aging Western Arkansas","title":"HELLUMS VS. AREA AGENCY ON AGING WESTERN ARKANSAS AWCC# H104834 APRIL 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HELLUMS_KELLIS_H104834_20230406.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HELLUMS_KELLIS_H104834_20230406.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H104834 \n \nKELLI S. HELLUMS, Employee                                                                                 CLAIMANT \n \nAREA AGENCY ON AGING WESTERN ARKANSAS, Employer                 RESPONDENT \n \nRISK MANAGEMENT RESOURCES, Carrier                                                  RESPONDENT \n \n OPINION FILED APRIL 6, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On January 5, 2023, a prehearing conference was conducted with the attorneys for the parties. \nHowever,  a  prehearing  Order  was  not  entered.  Rather  than  schedule  this  matter  for  a  hearing,  the \nparties advised that a stipulated record should be submitted, along with a brief from each party setting \nforth its position on how the law applies to the stipulated facts. The stipulated facts and the briefs of \nthe parties are blue backed and made a part of the record. \n The stipulated facts of this case are as follows: \n 1.      The employer-employee  relationship  existed  on  8/6/20  when  claimant  sustained  a \ncompensable injury to her lower back. \n 2.     The claim was accepted as a medical-only claim. \n            3.     Claimant’s average weekly wage of $402.11 would entitle her to TTD/PPD benefits in \nthe amount of $268/$201 per week. \n            4.     The parties reached a settlement when claimant was unrepresented, and paperwork was \nsubmitted to the Commission on 6/10/21. \n\nHellums-H104834 \n2 \n \n \n 5.     Matt Ketcham notified the adjuster of his representation on 6/11/21 and later notified \nthe Commission of his appearance on 10/14/21. \n 6.     A joint petition hearing never took place, and the file was returned to general files on \n1/26/22. \n 7.     Claimant’s counsel was notified by letter dated 8/8/22 that the adjuster was closing her \nfile and was taking the position that the statute of limitations had run. \n 8.     Claimant filed a Form C with the Commission on 8/8/22, and no previous filings were \nmade before that date. \n 9.     The parties have no objection to the incorporation of the Commission’s file by reference, \nif needed. \n The issues presented to me on this stipulated record were: \n(1) Had the statute of limitation expired before claimant filed a Form C for benefits; and \n(2) Had  the  parties  reached  a  binding  agreement  to  settle  this  matter  by  joint  petition  before  the \nstatute of limitations had expired?  \nAll other issues were reserved by the parties.  \n From a review of the record as a whole, including the stipulated facts, the briefs of the parties, \nand other matters properly before the Commission, the following findings of fact and conclusions of \nlaw are made in accordance with A.C.A.§11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations submitted by the parties are hereby accepted as fact. \n 2.   The Form C filed by claimant was timely filed. \n 3.   There is no binding contract to resolve this matter by joint petition. \n   \n\nHellums-H104834 \n3 \n \n \n FACTUAL BACKGROUND \n Attached  to  her  brief,  claimant provided the  email  correspondence  her  attorney  had  with \ncounsel for the respondents.  A cursory glance through those emails revealed that some of those from \nrespondent contained a confidentiality notice.  While the Commission is not bound by technical or \nstatutory rules of evidence or by technical or formal rules of procedure, Ark. Code Ann. § 11-9-705(a), \nStoker  v.  Thomas  Randal  Fowler,  Inc.,  2017  Ark.  App.  594, I believed it to be unfair to respondent’s \ncounsel  to  have  correspondence she  deemed  confidential included in claimant’s submission, and \ntherefore did not consider those emails so designated in deciding this matter. \nADJUDICATION \n \nA. Was claimant’s Form C filed after the statute of limitations had run?  \nClaimant’s date of injury was August 6, 2020, which would make the last date she could file   \n for benefits August 6, 2022.  Her Form C was filed on August 8, 2022.  While not included in the \nstipulations, I have taken judicial notice that August 6, 2022, was a Saturday and August 8, 2022, was \na Monday, see Buxton v. Nashville, 132 Ark. 511, 201 S.W. 512, (1918).  As such, this matter is governed \nby the decision of the Full Commission in Bundgard v. Wal-Mart, 2017 AR Wrk. Comp. LEXIS 104: \nIn  the  present  claim,  the  claimant's  two-year  statutory  period  for  filing  a \nclaim ended on a Sunday. Because the claimant could not file her claim on \nSunday,   she   waited   until   the   next   business   day   to   file   her   claim. \nConsequently,  the  Administrative  Law  Judge  found  that  the  claimant's \nstatute  of  limitations  for  filing  her  claim  had  run,  and  that  her  claim  was \nbarred  by  the  provisions  of  Ark.  Code  Ann.  §  11-9-702  .  However,  Ark. \nCode Ann. § 11-9-702 does not address computation of time when the two-\nyear   statute   of   limitations   deadline   falls   on   a   weekend   or   holiday. \nFurthermore,  strict  construction  does  not  mandate a  literal  interpretation \nthat leads to absurd results where an alternative interpretation better effects \nthe statute's purpose. Robertson v. Pork Group, Inc., 2011 Ark. App. 448, 384 \nS.W.3d 639 (2011). \n \nIn a previous claim, the Court applied Rule 6 of the Arkansas Rules of Civil \nProcedure  in  computing  time  to  file  an  appeal.  See, Ashcraft  v.  Quimby,  2 \nArk. App. 174, 617 S.W.2d 390 (1981). Taking into consideration the time \n\nHellums-H104834 \n4 \n \n \nfor  mailing  a  pleading  as  contained  in  Rule  6,  the  court  found  that  the \nclaimant had filed a timely appeal. Id. \n \nIn  the  absence  of  express  statutory  language  addressing  computation  of \ntime  when  the  two-year  statutory  deadline  for  filing  a  claim fall  on  a \nweekend or holiday, combined with the sound guidance set forth in Ashcraft \nv.  Quimby,  supra,  for  us  to  disallow  the  claimant  in  the  present  claim  the \nliberty of filing her workers' compensation claim on the Monday following \nher statutory deadline, would lead to an absurd result. See Robertson v. Pork \nGroup, Inc., supra. Therefore, we find that the claimant's claim is not barred \nby the two-year statute of limitations set forth in Ark. Code Ann. § 11-9-\n702. \n \nSince the Full Commission was satisfied that the logic behind Rule 6 of the Arkansas Rules of \nCivil Procedure should be applied to Ark. Code Ann. § 11-9-702, and since the legislature has not seen \nfit to change the wording of that statute in the years since that decision, I am satisfied that the Form \nC filed on August 8, 2022 was timely.  \n B.   Did the parties have a binding contract to resolve this matter by joint petition? \n In reviewing the correspondence that was not labeled confidential, I saw numerous requests \nfrom respondents’ counsel to claimant’s attorney prior to August 6, 2022, asking for status updates \nand wondering if the matter could be set for the joint petition on the paperwork that was submitted \non June 10, 2021. On August 4, 2022, two days before the statute of limitations expired, Ms. Wood \nsent a letter to Mr. Ketcham, advising that the original offer to settle was still available.  After August \n6, 2022, respondent took the position that the statute of limitations barred any further action on this \nmatter, and no money was going to be paid to claimant to resolve this matter by joint petition.   \n On September 23, 2022, Mr. Ketcham sent this email to Ms. Wood, which reads, in pertinent \npart:  \n“When we last spoke, I had indicated to you that my client would accept \nthe offer previously extended and that had been on the table without \nrevocation.  You then indicated that you would have to check with your \nclient.  As I see it, the offer was accepted.” \n \n\nHellums-H104834 \n5 \n \n \n  \nWithin four minutes on the same day, Ms. Wood responded: \n“I sent a letter on 8/8, informing you that I was closing my file and that \nthe adjuster was filing the Form 4 because the statute of limitations had \nrun.  It was taken off the table at that time.”    \n \nWhile the letter of August 8, 2022, was not included in the exhibits attached to either brief, I \nam satisfied that Ms. Wood sent it as she said in her email; there was no response from Mr. \nKetcham protesting that he had not received it included in his exhibits to his brief.   \n Claimant’s position that there was a contract to settle fails for two reasons.  First, I have no \nevidence that the offer was accepted before August 8, 2022.  Mr. Ketcham’s email does not identify \nwhen the conversation he referred to in his September 23, 2022, email took place.  Mr. Ketcham filed \na Form C on claimant’s behalf on August 8, 2022, instead of requesting the joint petition be set for a \nhearing. I thus conclude that the offer had not been accepted at the time the Form C was filed, and \nthe conversation took place after August 8, 2022.  As I believe Ms. Wood communicated on August \n8, 2022, that she had closed her file because she believed the statute of limitations had expired, that \nwould serve as a revocation of the offer.   \n Second, unlike civil litigation in the circuit and district courts, an agreement between the parties \nto settle a matter is contingent upon the joint petition being approved by an administrative law judge.  \nA claimant is advised at the hearing that he or she can decline to complete the proposed settlement at \nany time before the order is signed.  At the hearing, the judge must determine not only if the settlement \nis in the best interest of the claimant, but also in the respondent’s best interest.  Claimant cited no \nauthority to support its contention that a binding contract to settle this matter existed; respondents’ \nreliance on Odom v. Tosco Corp., 12 Ark. App. 196 (1984) is appropriate under these circumstances.  \n \n\nHellums-H104834 \n6 \n \n \nORDER \n \n Claimant’s Form C which was filed on August 8, 2022 was timely, and therefore claimant is \nnot barred from pursuing a claim for benefits. \n The parties do not have a binding agreement to settle this matter, as workers’ compensation \nclaims cannot be settled without a hearing on a proposed joint petition, and because the greater weight \nof evidence supports the conclusion that the offer was withdrawn before claimant attempted to accept \nit.  \n IT IS SO ORDERED. \n \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":10760,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H104834 KELLI S. HELLUMS, Employee CLAIMANT AREA AGENCY ON AGING WESTERN ARKANSAS, Employer RESPONDENT RISK MANAGEMENT RESOURCES, Carrier RESPONDENT OPINION FILED APRIL 6, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian ...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:08:18.500Z"},{"id":"alj-H109317-2023-04-06","awccNumber":"H109317","decisionDate":"2023-04-06","decisionYear":2023,"opinionType":"alj","claimantName":"Timothyr Middleton","employerName":"Lew Thompson & Son Trucking Inc","title":"MIDDLETON VS. LEW THOMPSON & SON TRUCKING INC. AWCC# H109317 APRIL 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MIDDLETON_TIMOTHYR_H109317_20230406.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MIDDLETON_TIMOTHYR_H109317_20230406.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H109317 \n \nTIMOTHY R. MIDDLETON, Employee                                                           \nCLAIMANT \n \nLEW THOMPSON & SON TRUCKING INC., Employer        RESPONDENT \n \nCCMSI, Carrier                                RESPONDENT \n \n \n OPINION FILED APRIL 6, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by MARK ALAN PEOPLES, Attorney, Little Rock, Arkansas. \n \nRespondents represented by GUY ALTON WADE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On January 23, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.    A  pre-hearing  conference  was  conducted  on  June  16,  2023,  and  a  pre-hearing \norder  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been  marked  as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the hearing, the parties agreed to the following stipulations: \n1.         The Arkansas Workers' Compensation Commission has jurisdiction of this \nclaim. \n2.         The employee/employer/carrier relationship existed on November 4, 2021. \n 3. The compensation rates are $736.00 for temporary total disability and \n  $552.00 for permanent partial disability.  \n At the hearing, the parties agreed to litigate the following issues: \n\nMiddleton-H109317 \n2 \n \n \n            1. Compensability regarding claimant’s head, throat, neck, back and shoulders. \n            2. If  compensable,  whether  claimant  is  entitled  to  temporary  total  disability \nbenefits  and  medical  benefits  regarding  his  head,  throat,  neck,  back  and \nshoulders.  \n             3. Attorney fees. \n All other issues are reserved by the parties. \n The claimant contends that: \n “a. He  sustained  compensable  injuries  to  his  head,  throat,  neck,  back,  and \nshoulders as a result of his work motor vehicle accident. \n b. He  is  entitled  to  additional  medical  treatment  relative  to  his  work  motor \nvehicle accident. \n c. He is entitled to temporary total disability from November 5, 2021, through \nNovember  13,  2021,  and  from  January  14,  2022  until  a  yet-to-be-determined  date  in  the \nfuture.” \n The respondents contend that the claimant’s requested medical is not reasonably \nnecessary or related to the work incident. Claimant is not entitled to temporary total disability \nrelated to the accident. \n From a review of the entire record, including medical reports, documents, and other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the \ntestimony of the witnesses and to observe their demeanor, the following findings of fact and \nconclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n\nMiddleton-H109317 \n3 \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non June 16, 2022, and contained in a pre-hearing order filed that same date, as modified at \nthe hearing, are hereby accepted as fact. \n 2.    Claimant has failed to prove by a preponderance of the evidence that he suffered \na compensable injury to his head which resulted in a physical or mental injury or illness, or \nto his throat, neck, back and shoulders on November 4, 2021. \n FACTUAL BACKGROUND \n Before the hearing began, the prehearing order was amended by claimant to add  a  \nhead injury to the list of other physical injuries which were at issue.  Respondent understood \nthat a claim for an injury to claimant’s head was at issue and did not object to this addition.  \nClaimant  withdrew  his  claim  for  rehabilitation  benefits  under §11-9-505,  specifically \nreserving that issue.   \nHEARING TESTIMONY \n \n Claimant  testified  that  he  was  in  a  motor  vehicle  accident  on  November  4,  2021, \nwhen the truck he was driving flipped onto its side while he was hauling live turkeys from a \nfarm  to  the  processing  plant.  Claimant  was  taken  to  the  emergency  department  at  Mercy \nHospital in Berryville, Arkansas, where he was treated and released from the hospital without \nany restrictions. Claimant stated that he had a bump on his head and produced photographs \nthat  he  maintains  depicted  the  injury  to  his  head;  he  did  not  know  if  he  was  rendered \nunconscious.  His wife testified that when she saw claimant in the emergency room, he was \nincoherent and confused.  \n Both claimant and his wife testified about claimant’s mental condition before and \n\nMiddleton-H109317 \n4 \n \n \nafter the accident. Claimant’s wife went into great detail about claimant’s memory failure \nand his inability to drive without someone being with him. In her words, “His memory and \ncognitive issues have greatly declined. He cannot remember things he did, places, people. \nHe can’t remember appointments. Medicines,  he  has  to  have  constant  reminders  from \nmyself.” Ms. Middleton said that she now must make all the decisions that the two of them \nhave talked about during the thirty-nine years they have been together as a couple, as such \ndiscussions now cause him to become overwhelmed.  \n Claimant testified that a week or so after the accident, he was employed again as a \ndriver for ABC Block, driving a dump truck hauling gravel and materials. Claimant did not \nseek any other medical attention following the accident until January 24, 2022, when he was \nhospitalized  for  breathing  issues.  While  the  medical  records  from  that  hospitalization \nindicate  that  claimant  had  COVID-19, he  and  his  wife  both  denied  those  records  were \naccurate. Since that hospitalization, claimant stated he has not been able to work.  \nREVIEW OF THE EXHIBITS \n \n Claimant  was  examined  and  released  on  November  4,  2022,  following  his  visit  to \nMercy  Hospital in Berryville, Arkansas. The records contain no restrictions on claimant’s \nactivities. He had a CT-scan of his head, his cervical spine and chest/abdomen/pelvis. There \nwas no acute intercranial abnormality noted on the CT-scan of the head, no acute fracture \nor subluxation of the cervical spine and no acute solid organ or traumatic injury in the chest, \nabdomen, or pelvis.  \n When admitted to Cox Health in Branson, Missouri on January 24, 2022, claimant’s \nchief complaint was “shortness of breath, cough, and neck pain associated with cough.” The \nassessment and plan at Cox Health were that claimant had COVID-19 pneumonia and was \n\nMiddleton-H109317 \n5 \n \n \nstarted  on  a  treatment  plan  of  Remdesivir.  Nothing  about  that  treatment,  or  whether \nclaimant  truly  had  COVID-19  or  not,  appears  to  relate  to  the  motor  vehicle  accident  of \nNovember 4, 2021. \n On  March  1, 2022,  claimant  began  treatment  at  Baxter  Regional  Medical  Center, \nseeing Dr. Keith Jackson with complaints of several physical conditions, some unrelated to \nthe accident of November 4, 2021. In the relevant part of the assessment, Dr. Jackson noted \ncervical disc disorder and spasm of the cervical paraspinous muscle. Regarding the cervical \ndisc disorder, Dr. Jackson stated that it was a chronic condition; claimant denied neck pain \nat  the  time  of  examination.  Regarding  the  spasm  of  the  cervical  paraspinous  muscle,  the \nclinical note says “acute due to MVA, discussed that this should calm down over the next \nfew months. He would benefit from PT but does not have insurance and is not working.” \n Claimant followed up with Dr. Jackson on April 4, and there was no mention of a \ncervical  disorder  or  the  spasm  of  the  cervical  paraspinous  muscle.  At  this  visit,  claimant \ncomplained of back pain which he had since the motor vehicle accident and memory loss \nwith the following entry “Acute. Discussed he may have had a concussion that is causing his \nmemory  issues.  Encouraged  him  to  do  things  that  challenge  the  mind,  word  puzzles, \ncrossword puzzles, etc.” On April 6, Dr. Jackson wrote the following “To Whom it May \nConcern” letter:  \n“Mr.  Middleton  was  injured  in  a  rollover  semi-truck  accident  on \n11/4/21. He suffered multiple injuries as his seat belt failed to restrain \nhim as evidenced by truck camera footage. It is my medical opinion \nthat  he  suffered  a  concussed  head  injury  as  well,  from  which  he \ncontinues to have symptoms. He continues to experience problems \nwith memory loss. We will continue to monitor his condition closely.” \n \n During the May 3, 2022 visit, Dr. Jackson again mentioned the cervical disc disorder \nalong  with  the  lumbar  disc  disorder  with  myelopathy  and  memory  loss  or  impairment. \n\nMiddleton-H109317 \n6 \n \n \nClaimant was also referred to a speech pathologist, Julie Brandon. Ms. Brandon administered \na cognitive linguistic quick test and found that claimant’s memory was moderately impaired, \nand his executive functions and visuospatial skills were mildly impaired.  \n On June 7, 2022, claimant returned to Dr. Jackson and there was no mention of his \ncervical or lumbar difficulties, but the memory loss or impairment was noted as unchanged. \n On July 18, 2022, claimant saw Dr. Vernon Cooper at Ozark Health Medical Center. \nDr. Cooper recommended an MRI of claimant’s brain and a formal neuropsychic testing to \ndetermine  if  claimant  had  post-concussion  memory  problems  as  opposed  to  an  on-going \nprogressive dementia or pseudodementia relating to depression and anxiety. The impression \nfrom the MRI was “normal MRI of the brain.”  \n On  August  11,  2022,  claimant  was  seen  at  Arkansas  Neuropsychology  and \nBehavioral Health in Sherwood, Arkansas. It appears that the report was prepared by  Dr. \nKaitlyn  Gall,  a  neuropsychology  post  doctorate  fellow, with  Dr.  Gall’s  work  being \nsupervised by Dr. Garrett Andrews, a certified forensic examiner in the State of Arkansas. \nThe clinical impressions from that visit are set out below in its entirety:  \nMr. Middleton's neurocognitive profile is valid and mildly abnormal. \nHe demonstrates inefficiencies in his verbal processing speed, which \nis likely negatively impact his ability to efficiently encode new verbal \ninformation.  It  should  be  noted  his  delayed,  verbal  recall;  overall \ncomplexity working memory; visual processing speed; and judgment \nwere within normal limits. It should be noted his visual skills appear \nsuperior to his verbal ability.  \n \nMr. Middleton's psychosocial profile reveals amplification of somatic \nand cognitive symptoms which are likely the result of genuine mood \ndysfunction.  He  likely  feels  dejected,  exhibits  symptoms  of  PTSD, \nand  has  a  tendency  to  experience  physical  reactions  to  negative \nemotions. His reports of worsening memory loss months after the \nMVA  are  inconsistent  with  a  TBI  and  it  is  very  likely  his  mood \ndysfunction   that   negatively   impacts   his   cognitive   functioning. \nNevertheless,  Mr.  Middleton  is  within  the  window  of  recovery \n\nMiddleton-H109317 \n7 \n \n \nfollowing a mild brain injury and would be expected to continue to \nimprove,   especially   with   treatment   of   his   mood.   As   such, \ninterventions aimed at improving his behavioral disturbance should \nbe  the  focus  of  treatment.  It  is  recommended  he  return  for  an \nupdated neuropsychological examination in one year to monitor his \ncognitive and emotional status. See recommendations below.\n \n \nDiagnosis:  \nF43.10 Posttraumatic stress disorder \nF32.9   Depressive disorder \n \nRecommendations:  \n \n1. Cognitive Behavioral Therapy (CBT) to address mood and teach \nadaptive  coping  skills  (e.g.,  relaxation  training).  Trauma-related \ntherapy would also be beneficial...\n \n2.   Medication  to  address  mood.  SSRIs  (e.g.,  Lexapro)  have  been \nfound to be especially efficacious for treating depression. \n \n3.  Utilize  cognitive  Rehabilitation  strategies  to  Aid  attention  in \nmemory and everyday life:\n \na.   Address   anxiety-provoking   or   upsetting   situations   before \nbeginning a task. \nb.  Write down information and use a calendar/alarm to keep track \nof tasks. \nc.  Use mnemonic strategies to Aid in encoding and recall, such as \nrepetition, elaboration, personalization, and chunking. \nd.  Given  your  Superior  visual  abilities,  attempt  to  use  visual \nstrategies when learning new information.  \ne.  Break  larger  projects  into  smaller,  step-by-step  goals  to  make \nthem more manageable and reduce feeling overwhelmed.  \nf. Work in a low-stimulus environment free from distractions \n4. Repeat  neuropsychic  exam  in  1  year  to  monitor  cognitive  and \nfunctional status. \n \nAn addendum to that report was issued on September 27, 2022:  \n \n“For clarification, it should be noted that Mr. Middleton is referred \nfor  injury  sustained  in  a  MVA  in  November  2021.  He  currently \nexhibits mild cognitive deficits, depression, and PTSD. Given history \nand  reports,  he  did  likely  sustain  a  mild  traumatic  brain  injury. \nHowever,  the  current  cognitive  defects  are  grossly  impacted  by  his \nmood difficulties. These are all related to the MVA. He is still within \nthe  recovery  window  and  should  continue  to  be  monitored  during \ntreatment.  He  should  refrain  from  being  overstimulated  and  at  this \ntime, not return to work full time. With continued treatment as noted \nabove,  he  may  be  able  to  return  to  part-time  work  with  a  stepwise \n\nMiddleton-H109317 \n8 \n \n \nprogression  toward  full-time  work.  He  should  be  re-examined  at \napproximately 1 year post accident.” \n \n \nOn January 16, 2023, Dr. Andrews prepared the following:  \n \n“It  is  noted  that  Mr.  Middleton  was  examined  as  a  clinical  patient \nand the examination was to answer a clinical question.  The referral \nquestion was asked, does Mr. Middleton have \"early onset dementia \nversus pseudodementia” related to mood changes. The information \nobtained in the initial report and addendum regarding history related \nto  the  MVA  and  subsequent  reported  symptoms  following  were \nbased on subjective reports from Mr. Middleton and his wife. There \nwas  no corroborating  medical  evidence  reviewed  or  provided. \nObjective examination revealed mild variability in verbal processing \nspeed  that  was  deemed  below  expectations  with  grossly  intact \nmemory,   attention,   judgment,   and   visuospatial   abilities.   This \nvariability  was  attributed  to  subjective  mood  difficulties  reported \nsince  the  accident.  Again,  there  was  no corroborating  evidence \nreviewed  or  provided  with  regard  to  pre-accident  functioning  of \ncognition  or  mood.  In  short,  regarding  the  referral  question,  Mr. \nMiddleton did NOT meet the criteria for diagnosis of Dementia or \nneurocognitive  disorder.  Subsequent  recommendations  were  made \nbased  on  the  clinical  concerns  and  subjective  complaints  by  Mr. \nMiddleton and his wife.”\n1\n \n \n In addition to the medical records, claimant introduced the accident report prepared \nby the police working the scene, several photographs of both the accident and claimant at \nthe ER, and a video from the cab of the truck, showing a view of both the road and inside \nthe cab at the time of the accident.  \n \n \n \n \n \n1\n  In  his  post-hearing  brief,  claimant  argued  that  this  January  16,  2023,  report  should  not  be  given  any \nweight because  of  the  “dubious  circumstances”  under  which  it  was  prepared.    However,  those \ncircumstances  were  not  presented  as  part  of  the  record,  and although  I  am  aware  of  what  claimant  is \nreferring to, I cannot take judicial notice of the events leading up to the preparation of that report that are \nnot in the record. Ultimately, though, the January 16, 2023, report is not dispositive of the issues in this \ncase, as my decision on the merits of this claim would be the same without it.  \n\nMiddleton-H109317 \n9 \n \n \nADJUDICATION \n \nThe claimant maintains his motor vehicle accident of November 4, 2021, resulted in \nboth physical and mental injuries.  Because the standards for obtaining benefits  for these \ntypes of injuries are different, the physical injuries claim will be addressed before the claim \nfor mental injury.  \nA.  Claim for injury to the throat, neck, back and shoulders. \n In order to prove a compensable injury as the result of a specific incident that is \nidentifiable by time and place of occurrence, a claimant must establish by a preponderance \nof the evidence (1) an injury arising out of and in the course of employment; (2) the injury \ncaused internal or external harm to the body which required medical services or resulted in \ndisability  or  death;  (3)  medical  evidence  supported  by  objective  findings  establishing  an \ninjury; and (4) the injury was caused by a specific incident identifiable by time and place of \noccurrence. Odd Jobs and More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \nWhile claimant identified the specific time and place of the motor vehicle accident \nthat occurred during his employment which resulted in him going to the emergency room \nfor  an  examination,  nothing  about  that  examination  revealed  an  objective  finding  that \nestablished claimant had an injury to his throat, neck, back and shoulders.  CT scans taken \nimmediately after the accident showed no abnormalities with his neck, chest, abdomen, and \npelvis.  He was released with no restrictions, and after he was fired for causing the accident, \nhe was working again the next week at full duty.   The issues claimant had with his throat in \nJanuary 2022 were not attributed to the motor vehicle accident by the treating physicians at \nthat time; his neck pain was deemed to be a result of coughing.  The only objective medical \nfinding as to one of the parts of his body that claimant alleged was injured was a spasm in \n\nMiddleton-H109317 \n10 \n \n \nhis  neck  noted  by  Dr.  Jackson  in  March  2022,  almost  five  months  after  the  accident; \nhowever,  this  spasm wasn’t noted during his hospitalization in January 2022 and was not \npresent during the April 2022 visit with Dr. Jackson.    \nIn reviewing all the records, I find claimant has failed to meet his burden of proof \nthat he sustained a compensable injury to his throat, neck, back or shoulders, as there was \nno medical evidence of objective findings to support this portion of his claim.  \nB.  Claim for mental injury or illness. \n While claimant’s contention was for an injury to his head, it was clear from the \ntestimony and the medical evidence that he was not referring to an external injury to that \nportion of his body, but rather a mental injury or illness.  Arkansas Code Annotated §11-9-\n113 provides the framework under which a mental injury may be deemed compensable for \npurposes of workers' compensation law: \n(a)(1) A mental injury or illness is not a compensable injury unless \nit is caused by physical injury to the employee's body and shall not \nbe  considered  an  injury  arising  out  of  and  in  the  course  of \nemployment  or  compensable  unless  it  is  demonstrated  by  a \npreponderance  of  the  evidence;  provided,  however,  that  this \nphysical injury limitation shall not apply to any victim of a crime of \nviolence. \n \n(2)   No   mental   injury   or   illness   under   this   section   shall   be \ncompensable unless it is also diagnosed by a licensed psychiatrist or \npsychologist  and  unless  the  diagnosis  of  the  condition  meets  the \ncriteria established in the most current issue of the Diagnostic and \nStatistical Manual of Mental Disorders. \n \n Finding claimant had not established that he suffered a compensable physical injury \nis likely dispositive of his claim for a mental injury.  In Dugan v. Jerry Sweetster, Inc., 54 Ark. \nApp. 401, 928 S.W.2d 341 (1996), the Court of Appeals examined what a claimant needed \nto show to demonstrate a mental condition was connected to a physical injury:  \n\nMiddleton-H109317 \n11 \n \n \nWe  note  that  Webster's  defines  injury  as  simply  \"harm  or \ndamage.\" Webster's New World Dictionary and Thesaurus 320 \n(1996). \"Bodily injury\" has been defined as \"physical pain, illness \nor   any   impairment   of   physical   condition.\"   Black's   Law \nDictionary  786  (6th  ed.  1990).  One  medical  dictionary  defines \ninjury  as  \"damage  or  wound  or  trauma.\"  Stedman's  Medical \nDictionary 786 (25th ed. 1990). Another calls it \"a disruption of \nthe integrity or function of a tissue or organ by external means, \nwhich are usually mechanical but can also be chemical, electrical, \nthermal,  or  radiant.\"  International  Dictionary  of  Medicine  and \nBiology, 1443, Vol. II. (1986). \n \n As mentioned above, the testing on claimant’s physical condition at the emergency \nroom showed none of the harms that are described above.  Still, after reviewing the video \nof  how  claimant  was  thrown  about  in  the  cab  of  his  truck  as  it  flipped  onto  its  side  and \nhaving heard the testimony of him and his wife as to the bump on his head following the \naccident, I determined that a closer examination of that portion of his claim on its merits \nwas warranted.   \n While several of the medical professionals that treated claimant gave an opinion that \nhe suffered a brain injury, only Arkansas Neuropsychology and Behavioral Health met the \nrequirements of §11-9-113 that the mental injury be diagnosed by a licensed psychologist or \npsychiatrist.  As such, I included a large portion of the narratives from those records in my \nreview  of  the  exhibits.    Nothing  from  the  Diagnostic  and  Statistical  Manual  of  Mental \nDisorders  (hereinafter  DSM-5)  on  post-traumatic  stress  disorder  (hereinafter  PTSD)  or \ndepression was submitted for me to consider, but Lincoln Pub. Sch. v. Secrist, 2016 Ark. App. \n315, holds “the  Commission  can,  and  indeed  should,  refer  to  a  manual  that  is  not  in  the \nrecord when by law the manual must be consulted to decide an issue in dispute.”  As such, \nI located the DSM-5 provisions on depression, which are set forth in Lincoln, and include: \nA. Five (or more) of the following symptoms have been present during \nthe  same  2-week  period  and  represent  a  change  from  previous \n\nMiddleton-H109317 \n12 \n \n \nfunctioning; at least one of the symptoms is either (1) depressed mood \nor (2) loss of interest or pleasure. \n  Note: Do not include symptoms that are clearly attributable to another \nmedical condition. \n \n1.  Depressed  mood  most  of  the  day,  nearly  every  day,  as \nindicated  by  either  a  subjective  report  (e.g.,  feels  sad,  empty, \nhopeless) or observation made by others (e.g., appears tearful).  \n2. Markedly diminished interest or pleasure in all, or almost all, \nactivities most of the day, nearly every day (as indicated by either \nsubjective account or observation). \n 3. Significant weight loss when not dieting or weight gain (e.g., \na  change  of  more  than  5%  of  body  weight  in  a  month)  or \ndecrease or increase in appetite nearly every day.  \n4. Insomnia or hypersomnia nearly every day. \n5.   Psychomotor   agitation   or   retardation   nearly   every   day \n(observable   by   others,   not   merely   subjective   feelings   of \nrestlessness or being slowed down). \n6. Fatigue or loss of energy nearly every day. \n7. Feelings of worthlessness or excessive or inappropriate guilt \n(which  may  be  delusional)  nearly  every  day  (not  merely  self-\nreproach or guilt about being sick). \n8. Diminished ability to think or concentrate, or indecisiveness, \nnearly every day (either by subjective account or as observed by \nothers). \n9. Recurrent thoughts of death (not just fear of dying), recurrent \nsuicidal ideation without a specific plan, or a suicide attempt or \na specific plan for committing suicide. \n \nB.  The  symptoms  cause  clinically  significant  distress  or  impairment  in  social, \noccupational, or other important areas of functioning. \n \nC. The episode is not attributable to the physiological effects of a substance or to \nanother medical condition. \n \nDiagnostic and Statistical Manual of Mental Disorders, 160-61 (5th ed. 2013). \n \n The  entries  of  Dr.  Andrews  (either  his  own  or  those  of  Dr.  Gall,  whom  he  was \nsupervising) did not specify five elements of depression that are necessary to establish that \ncondition under the DSM-5 guidelines.  In Lincoln, supra, an award of benefits from the Full \nCommission was overturned by the Court of Appeals because the evidence supported only \nfour of the five necessary criteria.  Here, the report simply says that he likely feels dejected.  \n\nMiddleton-H109317 \n13 \n \n \nIt  does  not  provide  enough  information  for  me  to  extrapolate  from  it  the  information \nneeded to determine if the DSM-5 criteria are met.  Contrast this with the medical report in \nHope  Livestock  Auction  Co.  v.  Knighton,  67  Ark.  App.  165,  992  S.W.2d  826  (1999),  which \ncontained more than a conclusionary finding, and allowed the Commission to make a finding \npursuant to the DSM in effect at the time:  \nWhile   a   bare   diagnosis,   without   an   explanation   of   the \ncharacteristics of the mental illness, might not be sufficient to meet \nthe requirements of section 11-9-113(a)(2), here Dr. Tobey, in both \nhis deposition and progress notes, described Knighton's Bipolar I  \nDisorder in such detail that the Commission could easily make the \nfinding  that  the  diagnosis  met  the  DSM-IV  criteria.  Although  it \nwould  be  preferable  in  cases  of  mental  injury  or  illness  for  a \npsychiatrist or psychologist to correlate the basis of his opinion to \nthe  DSM  criteria,  we  recognize  the  Commission's  expertise  and \nability  to  translate  medical  testimony  into  findings  of  fact.  We \ncannot say that the Commission's finding that Knighton's Bipolar \nI Disorder was a compensable work-related injury is not supported \nby substantial evidence. \n \n In sum, claimant did not meet his burden of proof of a depression  that meets the \nDSM-5 criteria, as there was not sufficient medical evidence that he met at least five of the \nrequired elements for that diagnosis.  \nI then did a similar analysis of the PTSD diagnosis after locating the DSM-5 \ncriteria for that condition at: \nhttps://www.ptsd.va.gov/professional/treat/essentials/dsm5_ptsd.asp: \nDSM-5 Criteria for PTSD \n All  of  the  criteria  are  required  for  the  diagnosis  of  PTSD.  The  following  text \nsummarizes the diagnostic criteria: \n \nCriterion A (one required): The person was exposed to: death, threatened death, actual or \nthreatened serious injury, or actual or threatened sexual violence, in the following way(s): \n• Direct exposure \n• Witnessing the trauma \n• Learning that a relative or close friend was exposed to a trauma \n\nMiddleton-H109317 \n14 \n \n \n• Indirect  exposure  to  aversive  details  of  the  trauma,  usually  in  the  course  of \nprofessional duties (e.g., first responders, medics) \nCriterion  B  (one  required): The  traumatic  event  is  persistently  re-experienced,  in  the \nfollowing way(s): \n• Unwanted upsetting memories \n• Nightmares \n• Flashbacks \n• Emotional distress after exposure to traumatic reminders \n• Physical reactivity after exposure to traumatic reminders \nCriterion C (one required): Avoidance of trauma-related stimuli after the trauma, in the \nfollowing way(s): \n• Trauma-related thoughts or feelings \n• Trauma-related reminders \nCriterion  D  (two  required): Negative  thoughts  or  feelings  that  began  or  worsened  after \nthe trauma, in the following way(s): \n• Inability to recall key features of the trauma \n• Overly negative thoughts and assumptions about oneself or the world \n• Exaggerated blame of self or others for causing the trauma \n• Negative affect \n• Decreased interest in activities \n• Feeling isolated \n• Difficulty experiencing positive affect \nCriterion E (two required): Trauma-related arousal and reactivity that began or worsened \nafter the trauma, in the following way(s): \n• Irritability or aggression \n• Risky or destructive behavior \n• Hypervigilance \n• Heightened startle reaction \n• Difficulty concentrating \n• Difficulty sleeping \nCriterion F (required): Symptoms last for more than 1 month. \nCriterion  G  (required): Symptoms  create  distress  or  functional  impairment  (e.g.,  social, \noccupational). \nCriterion  H  (required): Symptoms  are  not  due  to  medication,  substance  use,  or  other \nillness. \nTwo specifications: \n1. Dissociative  Specification. In  addition  to  meeting  criteria  for  diagnosis,  an \nindividual experiences high levels of either of the following in reaction to trauma-\nrelated stimuli: \n• Depersonalization. Experience of being an outside observer of or detached \nfrom oneself (e.g., feeling as if \"this is not happening to me\" or one were in \na dream). \n• Derealization. Experience of unreality, distance, or distortion (e.g., \"things \nare not real\"). \n2. Delayed Specification. Full diagnostic criteria are not met until at least six months \nafter the trauma(s), although onset of symptoms may occur immediately. \n\nMiddleton-H109317 \n15 \n \n \n \nIn reading the reports of Dr. Andrews, as well as reviewing the testimony of claimant \nand his wife and comparing that with the criteria for a PTSD diagnosis, I can find the first \ncriteria  was  met,  in  that  a  motor  vehicle  accident  can  be  an  exposure  to  death  or  serious \nphysical injury, or the threat thereof.  There was some evidence presented on Criterion F, \nG, and H, at least in the testimony of claimant and his wife.  From there, however, claimant \ndid not relate that he was re-experiencing the event.  He was avoiding driving a large truck \nfor  the  same  reason  he  was  avoiding  driving  an  automobile—memory  and  concentration \nissues, not because he was reliving the accident.  Failing to establish any one of the Criterion \nB through E would be fatal to this claim, and I find that none of those four were established.\n2\n  \nAs with the claim of depression, the competent medical evidence under §11-9-113 \ndoes not support a finding of a diagnosis of PTSD under the DSM-5 criteria. \nORDER \n \nClaimant failed to meet his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his head, resulting in a mental injury or illness, or a \ncompensable physical injury to his throat, neck, back and shoulders on November 4, 2021. \nTherefore, his claim for compensation benefits is hereby denied and dismissed. \nRespondent is responsible for paying the court reporter her charges for preparation \nof the hearing transcript in the amount of $ 837.9 5. \n \n \n \n2\n To be clear, I am not finding that claimant’s testimony alone could provide sufficient proof of a PTSD \ndiagnosis.  My observations are based on a “best case scenario” for claimant, pairing his testimony with \nthe conclusionary finding of PTSD by Dr. Andrews in August 2022. Even with that approach, his proof \nwas still lacking on several of the required criteria.   \n\nMiddleton-H109317 \n16 \n \n \n IT IS SO ORDERED. \n  \n \n                           ______________ \n        JOSEPH C. SELF \n       ADMINISTRATIVE LAW JUDGE","textLength":31348,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109317 TIMOTHY R. MIDDLETON, Employee CLAIMANT LEW THOMPSON & SON TRUCKING INC., Employer RESPONDENT CCMSI, Carrier RESPONDENT OPINION FILED APRIL 6, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Arkansas. Cl...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["neck","back","cervical","fracture","concussion","lumbar","tbi"],"fetchedAt":"2026-05-19T23:08:20.659Z"},{"id":"alj-H109839-2023-04-05","awccNumber":"H109839","decisionDate":"2023-04-05","decisionYear":2023,"opinionType":"alj","claimantName":"Nancy Holman","employerName":"Walmart Associates, Inc","title":"HOLMAN VS. WALMART ASSOCIATES, INC. AWCC# H109839 APRIL 5, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HOLMAN_NANCY_H109839_20230405.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOLMAN_NANCY_H109839_20230405.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H109839 \n \nNANCY HOLMAN, Employee                                                                         CLAIMANT \n \nWALMART ASSOCIATES, INC., Employer                                             RESPONDENT                         \n \nWALMART CLAIMS SERVICES, Carrier                                                 \nRESPONDENT                                                                          \n \n \n OPINION FILED APRIL 5, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by JAMES A. ARNOLD, II, Attorney, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On March 20, 2023, the above captioned claim came on for hearing at Fort Smith, \nArkansas.  A pre-hearing conference was conducted on September 7, 2022 and a pre-\nhearing  order  was  filed  on  that  same  date.    A  copy  of  the  pre-hearing  order  has  been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.    The claimant sustained a compensable injury to her low back on October 24, \n2021. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Temporary total disability or temporary partial disability benefits from October  \n\nHolman – H109839 \n2 \n \n \n25, 2021 through March 24, 2022. \n2.    Temporary total disability benefits from July 25, 2022 through a date yet to be  \ndetermined. \n3.    Additional medical treatment. \n4.     Attorney’s fee. \n5.     Compensation rates. \n  At the time of the hearing  claimant indicated that she is no longer requesting \ntemporary  total  or  temporary  partial  disability  benefits  from  October  25,  2021  through \nMarch  24,  2022,  but  is  only  requesting temporary  total  disability  benefits from  July  25, \n2022 through a date yet to be determined.  The parties also indicated at the hearing that \nthey would resolve the compensation rate issue and that it was no longer an issue to be \nlitigated. \nClaimant  contends  she  is  entitled  to  temporary  total  disability  benefits  from  July \n25, 2022 until a date yet to be determined.  Claimant contends she is entitled to medical \ntreatment  by  or  at  the  direction  of  Dr.  Blankenship,  including  a  referral  to  Dr. Cannon.  \nClaimant contends her attorney is entitled to the appropriate attorney’s fee in regard to \nany indemnity benefits owed but not previously paid. \n   The respondents contend the claimant is not entitled to any additional temporary \ntotal disability benefits.  Claimant initially sought treatment on her own and once the injury \nwas accepted, respondents paid claimant back TTD in the amount of $1,018.31 to cover \nthe period of October 24, 2021 through November 15, 2021, when claimant returned to \nlight  duty.    Claimant  remained  on  light  duty  and  was  accommodated  until  she  was \nreleased  at  MMI  on  March  24,  2022  with  no  physical  impairment  from  the injury  on \n\nHolman – H109839 \n3 \n \n \nOctober  24,  2021.    Claimant  sought  and  received  a  change  of  physician  to  see  Dr. \nBlankenship.  Dr. Blankenship relied on the same MRI that was relied upon at the time \nshe was released at MMI.  Claimant’s condition is not a consequence of her accepted \nwork-related injury. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non September  7,  2022  and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.    Claimant has met her burden of proving by a preponderance of the evidence \nthat  she  is  entitled  to  additional  medical  treatment  for  her  compensable  injury  as \nrecommended by Dr. Blankenship. \n 3.   Claimant has met her burden of proving by a preponderance of the evidence \nthat  she  is  entitled  to  temporary  total  disability  benefits  beginning  July  25,  2022 and \ncontinuing through a date yet to be determined. \n 4.      Respondent  has  controverted  claimant’s  entitlement  to  all  unpaid  indemnity \nbenefits.  \n \n FACTUAL BACKGROUND \n The parties have stipulated that claimant suffered a compensable injury to her low \n\nHolman – H109839 \n4 \n \n \nback while working for respondent on October 24, 2021.   The claimant primarily worked \nin respondent’s deli department, but on that day was asked to unload a pallet of bulk food.  \nIt was while claimant was engaged in this unloading that she injured her low back. \n Two days after her injury claimant was evaluated by Noma Kellner,  APRN, who \nrecorded a  history of claimant complaining of lower back pain wrapping to her stomach.  \nShe  also  noted  that  claimant  was  having  a  difficult  time  walking.    Kellner  diagnosed \nclaimant’s condition as acute low back pain and prescribed Diazepam due to claimant’s \ninability to take steroids or NSAIDS.  Kellner also ordered an MRI scan.   \n Three  days  later,  on  October  29,  2021,  claimant  was  seen  by  Keena  Melton, \nAPRN.  Melton  noted  that  claimant  was  not  taking  any  pain  medication,  but  had  been \ntaking over-the-counter Tylenol which was not very effective. \n Claimant underwent the MRI scan on November 1, 2021, and it was interpreted as \nshowing a central disc herniation indenting the epidural fat at L5-S1.  Following the scan, \nclaimant was seen by her primary care physician, Dr. Timothy Johnson.  He noted that \nclaimant’s condition had significantly improved and that he would hold off on any further \ntesting  or  treatment.    Based  on  the  finding  of  the  herniated  disc,  he  did  indicate  that \nclaimant should avoid any heavy lifting. \n On  November  10,  2021,  claimant  was  evaluated  by  Dr.  Scott  Kuykendall,  who \ndiagnosed claimant’s condition as low back pain and he prescribed physical therapy twice \na week for six weeks.  Medical records indicate that claimant began undergoing physical \ntherapy on November 22, 2021, and according to Dr. Johnson’s report of December 8, \n2021, it did not provide any significant improvement.  In his report of December 13, 2021, \nDr. Kuykendall indicated that claimant stated that she was unable to tolerate the physical \n\nHolman – H109839 \n5 \n \n \ntherapy and he referred claimant for a neurosurgical evaluation.   \n Claimant was seen by Dr. Edward Saer, orthopedic surgeon, on January 6, 2022.  \nHe did not have the benefit of claimant’s MRI scan, but did have the interpretive report.  \nHe was of the opinion that claimant had low back pain as the result of an overuse type \ninjury and noted that claimant would improve with time.  He indicated that he would like \nto review the MRI scan and recommended that claimant continue with physical therapy. \n Claimant returned to Dr. Saer on January 27, 2022, and his report indicates that \nclaimant stated that she was feeling worse.  He reviewed the MRI scan and was of the \nopinion that there was no evidence of disc herniation.  He informed claimant that she was \ngoing  to  have  good  days  and  bad  days  and  that  her  expectations  were  probably \nunrealistic.  He also prescribed continued physical therapy. \n On February 22, 2022, claimant was evaluated by Dr. Anthony Davis, neurologist.  \nDr. Davis ordered a repeat MRI scan and indicated that he would prescribe gabapentin.  \nOn March 3, 2022, claimant returned to Dr. Saer who noted: \n  I reviewed her prior x-rays and MRI.  She has a mildy \n  degenerative disc at L3-4.  I explained that so far we \n  have not been able to pinpoint a problem.  Most likely \n  she has had a soft tissue injury.  I recommend getting \n  a SPECT-CT scan of the thoracic and lumbar spine to \n  make sure that she does not have another, more \n  significant problem.   \n \n \n On March 8, 2022, claimant underwent the repeat MRI which was interpreted as \nprimarily showing degenerative changes.  Claimant returned to Dr. Davis on March 10, \n2022 and she informed him that she had not started the gabapentin after reading about \npossible  side  effects.    In  his  report  he  states  that  claimant  has  now  agreed  to  try  the \n\nHolman – H109839 \n6 \n \n \ngabapentin.   \n On March 24, 2022 claimant underwent the whole body bone scan that had been \nrecommended by Dr. Saer.  Following that scan claimant returned to Dr. Saer for the last \ntime on March 24, 2022, and he noted that the bone scan for claimant’s lumbar spine was \nnormal.  He further stated: \n  We had a very long discussion today.  She is literally \n  in tears because she wants to return to her job but \n  simply cannot.  I explained that she does not have \n  any evidence of malignancy or other problems that \n  need surgery.  She has been through physical therapy. \n  She again tells me today that she has to get her \n  brother to help her get out of bed, and has to have \n  someone standing by when she takes a shower. \n \n  I explained that she is going to need to start working \n  on trying to move better and get more active on her \n  own.   \n \n  There is simply no easy way to do this. \n \n  As far as work goes, I think she is going to need to \n  look for something in the sedentary category.  I doubt \n  an FCE would be of any value.  She is at MMI.  There \n  is no permanent impairment for this injury. \n \n \n Claimant  filed  for  and  received  a  change  of  physician  to  Dr.  Blankenship, \nneurosurgeon, and was initially evaluated by him on July 25, 2022.  He diagnosed her \ncondition as SI joint dysfunction and recommended that she see Dr. David Cannon for a \nright  SI  joint  injection and  that  she  continue with  physical  therapy.   He also  prescribed \nMobic and Lyrica.   \n Apparently,  claimant  saw  Dr.  Blankenship  for  a  second  time  in  February  2023; \nhowever, his report from that visit is not in the record. Dr. Blankenship did discuss that \n\nHolman – H109839 \n7 \n \n \nvisit  in  his  deposition  stating  that  claimant  had  not  undergone  the  injection  with  Dr. \nCannon  due  to  her  past  reaction  to  steroid  medication.    Instead,  Dr.  Blankenship  was \nrecommending a numbing injection before deciding whether claimant was a candidate for \nsurgery on the SI joint.   \n Respondent  has  denied  additional  medical  treatment  recommended  by  Dr. \nBlankenship and as a result claimant has filed this claim contending that she is entitled to \nadditional  medical  treatment  as  well  as  temporary  total  disability  benefits  and  a \ncontroverted attorney fee. \n \nADJUDICATION \n Claimant  contends  that  she  is  entitled  to  additional  medical  treatment  for  her \ncompensable low back injury.  Claimant has the burden of proving by a preponderance \nof  the  evidence  that  additional  medical  treatment  is  reasonably  necessary.   Stone  v. \nDollar General Stores, 91 Ark. App. 260, 209 S.W. 3d 445 (2005).   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe  doubt  to  either  party,  I  find  that  claimant  has  met  her  burden  of  proving  by  a \npreponderance  of  the  evidence  that  she  is  entitled  to  additional  medical  treatment  as \nrecommended by Dr. Blankenship. \n First,  I  note  that  respondent  has  submitted  into  evidence  a  number  of  medical \nrecords dating back to 2011.  I note that some of those records indicate that claimant has \nmade  complaints  of  similar  low  back  pain  in  the  past  and  that  many  of  her  other \ncomplaints have not been supported by objective findings.  Claimant acknowledges that \nshe has had some back complaints in the past, but states that her current complaints are \n\nHolman – H109839 \n8 \n \n \nmuch worse than her prior complaints.  Indeed, the prior medical records do not reflect a \nhistory of back complaints as significant as those noted since her injury on October 24, \n2021.   \n With regard to claimant’s compensable low back injury, I note that it is the opinion \nof  Dr.  Blankenship  that  her  complaints  are  related  to  an  SI  joint  dysfunction.    Dr. \nBlankenship bases his opinion that claimant suffers from an SI joint dysfunction on his \nclinical  examination  of  claimant  as  well  as  her  response  to  five  different  tests  he \nperformed on claimant and her responses to those tests.  Dr. Blankenship acknowledges \nthat the five tests are subjective in nature.  He also acknowledges that her reaction to an \ninjection would be objective in nature and at his deposition indicated that MRIs, x-rays, \nand bone scans are not helpful in diagnosing an SI joint dysfunction. \n However, I note that respondent has accepted an admittedly compensable injury \nto claimant’s low back and an injured worker is not required by law to establish a need for \nongoing  medical  treatment  through  the  evidence  of  objective  medical  findings.   Ark. \nHealth Ctr. v. Burnett, 2018 Ark. App. 427, 558 S.W. 3d 408.  Instead, claimant has the \nburden  of  proving  by  a  preponderance  of  the  evidence  that  the  medical  treatment  is \nreasonable and necessary.  Goyne v. Crabtree Contracting Company, 209 Ark. App. 200, \n301 S.W. 3d 16.   \n Here,  claimant  has  been  treated  by  several  physicians  and  has  undergone \nextensive  physical  therapy  which  has  done  little  to  alleviate  her  low  back  complaints. \nFollowing her change of physician claimant came under the care of Dr. Blankenship who \nhas diagnosed claimant as suffering from an SI joint dysfunction.  Dr. Blankenship has \nrecommended additional medical treatment which needs to be performed in the form of \n\nHolman – H109839 \n9 \n \n \na  numbing  injection  before  he  can determine  whether  claimant  is in  need of a  surgical \nprocedure.  I  find  that  the  opinion  of  Dr.  Blankenship  is  credible  and  entitled  to  great \nweight. \n Accordingly, based upon the opinion of Dr. Blankenship, I find that claimant has \nmet  her  burden  of  proving  by  a  preponderance  of  the  evidence  that  she  is  entitled  to \nadditional medical treatment as recommended by Dr. Blankenship. \n Claimant also contends that she is entitled to additional temporary total disability \nbenefits beginning July 25, 2022 and continuing through a date yet to be determined.  In \norder  to  be  entitled  to  temporary  total  disability  benefits,  claimant  has  the  burden  of \nproving by a preponderance of the evidence that she remains within her healing period \nand  that  she  suffers  a  total  incapacity  to  earn  wages.   Arkansas  State  Highway  & \nTransportation Dept. v. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).   Claimant has \nremained within her healing period as reflected in the opinion of Dr. Blankenship.  I also \nnote  that  at  the  time  of  claimant’s  first  visit  with  Dr.  Blankenship  on  July  25,  2022,  he \nindicated that claimant should remain off work until the time of his next visit.  Apparently, \nthat visit did not occur until February 2023.  At his deposition, Dr. Blankenship indicated \nthat he would not want claimant to continue working for the respondent at this time.  He \nspecifically indicated that claimant could not stand for any prolonged periods of time, twist, \nbend  at  the  waist,  or  lift  more  than  10  to  20  pounds.    Based  upon  the  opinion  of  Dr. \nBlankenship, I find that claimant has proven by a preponderance of the evidence that she \nremains within her healing period and that she suffers a  total incapacity to earn wages \nand has done so since July 25, 2022.  Accordingly, I find that claimant has met her burden \nof  proving  by  a  preponderance  of  the  evidence  that  she  is  entitled  to  temporary  total \n\nHolman – H109839 \n10 \n \n \ndisability  benefits  beginning  July  25,  2022  and  continuing  through  a  date  yet  to  be \ndetermined.    Respondent  has  controverted  claimant’s  entitlement  to  unpaid  indemnity \nbenefits. \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe  is  entitled  to  additional  medical  treatment  for  her  compensable  low  back injury  as \nrecommended  by  Dr.  Blankenship.    She  has  also  proven  by  a  preponderance of  the \nevidence  that  she  is  entitled  to  temporary  total  disability  benefits  from  July  25, 2022 \nthrough  a  date  yet  to  be  determined.    Finally,  respondent  has  controverted claimant’s \nentitlement to all unpaid indemnity benefits. \n Pursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $756.45. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":17847,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109839 NANCY HOLMAN, Employee CLAIMANT WALMART ASSOCIATES, INC., Employer RESPONDENT WALMART CLAIMS SERVICES, Carrier RESPONDENT OPINION FILED APRIL 5, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkansa...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","herniated","thoracic","lumbar"],"fetchedAt":"2026-05-19T23:08:16.426Z"},{"id":"full_commission-H004413-2023-04-04","awccNumber":"H004413","decisionDate":"2023-04-04","decisionYear":2023,"opinionType":"full_commission","claimantName":"Stephen Johnson","employerName":"Pulaski County Special School District","title":"JOHNSON VS. PULASKI COUNTY SPECIAL SCHOOL DISTRICT AWCC# H004413 APRIL 4, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Johnson_Stephen_H004413_20230404.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Johnson_Stephen_H004413_20230404.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H004413 \n \n \nSTEPHEN L. JOHNSON,  \nEMPLOYEE  CLAIMANT \n \nPULASKI COUNTY SPECIAL SCHOOL DISTRICT,   \nEMPLOYER                 RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, WCT., \nCARRIER/TPA RESPONDENT \n \n \nOPINION FILED APRIL 4, 2023 \n \nUpon  review  before  the  FULL  COMMISSION,  Little  Rock,  Pulaski  County, \nArkansas. \n \nClaimant represented by the HONORABLE DANIEL E. WREN, Attorney at \nLaw, Little Rock, Arkansas. \n \nRespondents  represented  by  the  HONORABLE  KAREN  H.  MCKINNEY, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Reversed. \n \n \nOPINION AND ORDER \n \n            The claimant appeals a decision of the Administrative Law \nJudge filed on July 23,  2022.  The Administrative Law Judge found that the \nclaimant has failed to prove, by a preponderance of the credible evidence, \nthat he is entitled to additional medical treatment in relation to his \ncompensable right knee injury of July 2, 2020 and has consequently failed \nto prove that he is entitled to additional temporary total disability benefits \nfrom November 13, 2020, through a date yet to be determined.  After our de \n\nJOHNSON – H 004413                                                               2 \nnovo review of the entire record, the Full Commission finds that the \nclaimant has proven by a preponderance of the evidence that he is entitled \nto additional medical treatment to his right knee that was provided by Dr. \nSiems and additional temporary total disability benefits beginning on \nNovember 13, 2020, and continuing to a date yet to be determined.\n               I.  HISTORY \n  The claimant, now 58 years old, worked for the respondent-\nemployer as a plumber.  The claimant sustained an admittedly \ncompensable injury to his right knee in a workplace injury on July 2, 2020.  \nThe claimant testified that the accident happened in the following manner: \nQ On July the 2\nnd\n, 2020, do you recall \n where you were working that day? \n \nA I was working at Mills Middle School. \n \nQ And were you working with anyone? \n \nA Yes, I was working with an apprentice \n named John. \n \nQ And what were y’all doing there that day?  \n What was the project? \n \nA We had a sink that the water lines had \n rotted out in the wall and we were having \n to run new lines from down the wall from \n up in the ceiling, and ... \n \n... \n We were runnin’ new water lines down \n the wall.  He was up in the ceiling and I \n\nJOHNSON – H004413                                                             3 \n was under the sink, and we had fixed the \n lines down in the wall and under the sink.  \n And he hooked ‘em up in the ceiling and I \n hooked ‘em up under the sink, and I \n hooked the sink back up and all, and \n that’s what we were doin’. \n \n... \n \n ...  I crawled out from under the sink and \n when I turned and went to get up, I had a \n pop in my right knee on the inside of my \n right knee [indicating], and it felt like \n somebody’d stuck a knife in it. \n \n  The claimant was seen at Concentra on the day of the work \naccident with a complaint of “right knee injury”.  The claimant was \ndiagnosed with right knee sprain and prescribed Cyclobenzaprine and \nreferred to physical therapy. \n  The claimant came under the care of Dr. Martin Siems for his \nright knee injury on July 28, 2020.  Dr. Siems ordered a right knee MRI.  \nThe MRI, which was performed on August 21, 2020, revealed the following: \nIMPRESSION: \n \n1. Tricompartmental osteoarthritis with cartilage \nloss and osteophytes as described above.  \nFindings are advanced in the medial \ncompartment.  Subchondral edema at the \nweightbearing medial femoral and medial tibial \ncondyles related to grade 4 cartilage loss.  No \nfracture identified. \n \n2.  Small joint effusion.  Very small Baker’s cyst. \n \n\nJOHNSON – H004413                                                             4 \n3. Complex macerated tear involving the \nposterior horn and body of the medial meniscus.  \n2 cm loculated ganglion or parameniscal cyst \nformation along the posterior medial margin of \nthe medial tibial condyle. \n \n4. MCL sprain with surrounding edema and \npartial intestinal tear of its distal fibers. \n \n  Following the MRI, Dr. Siems noted the following plan in his \nAugust 21, 2020, medical report: \nPLAN: Will [sic] conditioning therapy for range of \nmotion strengthening exercises and injected his \nright knee with Celestone Marcaine lidocaine.  \nHe tolerated procedure well.  We are going to \nstart him in physical therapy.  We will see him \nback in a month.  He will continue with light duty \nsedentary work only. \n \n  In his October 12, 2020, record, Dr. Siems noted: \nPLAN:  We will keep him off work for another \nmonth.  I will see him being able to return to \nwork current condition [sic].  He needs a total \nknee arthroplasty.  I discussed the risk benefits \nand alternatives of total knee arthroplasty with \nhim at length today.  Begin to press forward with \nright total knee arthroplasty.  We will see him \nback at the time of surgery. \n \n  By letter dated October 14, 2020, Melody Tipton, an insurance \nadjuster for Arkansas School Boards Association, posed the following \nquestions to Dr. Siems: \nI have received your request for total right knee.  \nPrior records indicate Mr. Johnson was treated \nby you for pain in the right knee, since \n\nJOHNSON – H004413                                                             5 \napproximately 2017, with an apparent report by \nthe injured worker of pain dating to at least \n2011.  Please describe any new findings \nfollowing his injury of 07/02/20? \n \nIf this is an aggravation of a pre-existing \nproblem, what would be needed to return him to \npre-injury status? \n \nIn your medical opinion, is the need for the \nproposed total joint replacement of the right \nknee more than 51% related to the recent \nworkplace injury[?] \n \n  Dr. Siems responded to these questions on November 5, \n2020, to wit: \n1. [I]ncreased tenderness at medial joint line. \n2. His problem is progressive, and will worsen       \n    over time. \n3. No. \n \n  The claimant saw Dr. Adam Smith on December 10, 2020, at \nwhich time Dr. Smith noted: \nPlan:  He has failed conservative management \nto date.  There is not really anything more that I \ncan offer him other than a knee replacement.  I \ndo not see how he can go back to work with no \nrestrictions given the amount of pain he is in.  \nAny type of deep squatting or stooping as well \nas kneeling will cause him pain.  This will \nseverely limit his ability to do his job.  I \nrecommend that he have a knee replacement in \norder to get him back to full function or at least \nreasonable function.  He is wanting to follow \nback up with Dr. Siems and has an appointment \n\nJOHNSON – H004413                                                             6 \nwith him next month so recommend he follow-up \nwith him. \n \n  Using his health insurance, the claimant underwent right knee \ntotal arthroplasty on March 15, 2021.  The claimant suffered an infected \nright total knee arthroplasty after which it was “removed and replaced with a \nnew femoral component and poly tibial component” on May 17, 2021.  The \nclaimant underwent a right total knee revision arthroplasty on August 18, \n2021. \n  By letter dated March 24, 2021, the claimant’s attorney, \nDaniel Wren, asked Dr. Siems, “Did the July 2, 2020 work incident play \nANY role in the need for Mr. Johnson’s total knee replacement?”  Dr. Siems \nreplied on March 29, 2021 by placing an “x” by “YES” in response to this \nquestion. \n  Dr. Siems offered testimony in this matter by deposition taken \non March 22, 2022.  Regarding whether the claimant’s work incident \naccelerated the claimant’s need for surgery, Dr. Siems offered the following: \nBY MS. MCKINNEY: \n \nQ So within a reasonable degree of medical \n certainty, the injury is not what caused \n the need for the surgery? \n \nA I think it certainly tipped the course \n towards joint replacement. \n \n... \n  \n\nJOHNSON – H004413                                                             7 \nQ And Mr. Johnson, we knew back in 2018 \n that at some point in time Mr. Johnson \n was going to need a total knee \n replacement? \n \nA Correct. \n \nQ Can you state within a reasonable degree \n of medical certainty that the work-related \n incident caused that need for surgery to \n accelerate? \n \nA Yes. \n \nQ Is that – you shook your head.  What did \n you say? \n \nA Yes. \n \nQ And how so? \n \nA Well, from his report, he was getting by \n just fine and doing okay up until the point \n where he had this injury at work.  And \n from then, he just wasn’t able to return.  \n He had increased pain about the knee.  \n And so it had to have had some role in \n this downhill progress that he made to \n end up needing a total joint replacement. \n \n... \n \nBY MR. WREN: \n \nQ Dr. Siems, you used the term during your \n examination by Mrs. McKinney that the \n on-the-job incident tipped the course of \n treatment.  Can you explain what you \n mean by ‘tipped the course of treatment’? \n \n\nJOHNSON – H004413                                                             8 \nA Well, as we’ve established through the \n notes, he had a problem with his knee, \n and when we would get to the point of \n doing a total knee replacement is \n multifactorial like we’ve talked.  It really \n has to do with just how much pain \n somebody’s in on a daily basis and how it \n affects the function of their knee and their \n ability to work or go fishing or whatever is \n important to them at the time.  And so by \n tipping the – however I said it – the \n course of treatment, it’s always \n something that tips the hand for doing a \n total joint.  You know, people don’t start – \n or it’s typically something, whether it's a \n work injury or a car wreck or I guess \n sometimes it just occurs gradually over \n time, but in his situation, he was \n functioning and working and was able to \n work and then he couldn’t after this \n incident at work. \n \n  Dr. Siems also clarified the claimant’s work status at that time: \nQ Has he reached the end of his healing \n from the resection? \n \nA Not quite. I mean, he’s not where I’d like \n him to be, but he’s getting better. \n \nQ Would he be able to work at this point in \n time in his recovery? \n \nA I believe we have him off work.  I’m not \n certain to what the last work status was.  \n It depends on the job. \n \nQ If light duty were made available, would \n he be able to work light duty? \n \n\nJOHNSON – H004413                                                             9 \nA It just depends on what the light duty was.  \n He can do a sedentary job. \n \n  The last medical record available to the Commission is dated \nJanuary 20, 2022 and indicates that the claimant was to return to see Dr. \nSiems in six (6) months. \n  The claimant had pre-existing osteoarthritis in both of his \nknees.  The claimant underwent a left total knee replacement in 2017.  \nRegarding the problems he was having in his right knee prior to the work \naccident, the claimant testified as follows: \nQ From the time that you returned back to \n work after your surgery in 2017, did you \n occasionally have pain in your right knee? \n \nA Every great once in a while. \n \nQ Did it ever make you miss work? \n \nA No. \n \nQ Did it ever make you refuse an \n assignment? \n \nA No. \n \nQ  Were you written up for performance \n issues related to your right leg? \n \nA No, I was not. \n \n  A Pre-hearing Order was filed on December 8, 2021.  “The \nclaimant contends that he injured his right knee while working under a sink \n\nJOHNSON – H004413                                                             10 \nat the science lab at Mills Middle School on July 2, 2020, when he felt a pull \nin his knee when he attempted to get up.  That the claimant was diagnosed \nwith a complex macerated tear involving the posterior horn and body of the \nmedial meniscus and a sprain of his MCL.  That in November of 2020 an \nadjuster for the Respondent, Arkansas School Board Association asked Dr. \nMartin Siems, who has recommended a total knee replacement for the \nClaimant, whether or not the injury on July 2, 2020, was the ‘major cause’ \nfor the need for a total knee replacement.  Dr. Siems responded that it was \nnot the ‘major cause’ of the total knee replacement. \n  However, in response to the claimants [sic] attorney on March \n29, 2021, Dr. Siems indicated that the July 2, 2020, work incident did play \nsome role in the need for the Claimant’s total knee replacement. \n  The Respondents have controverted this claim as of \nNovember 13, 2020, and stopped payment for any medical treatment and \nstopped payment of temporary total disability benefits.” \n   “Respondents contend that the claimant has received all \nbenefits to which he is entitled.  Respondents contend that the claimant’s \npresent disability and need for a total knee replacement are not related to \nhis compensable injury of June 2, 2020, but to his pre-existing degenerative \ncondition.  The claimant sought orthopedic medical treatment for bilateral \nknee pain at least as early as 2017, and he underwent a total knee \nreplacement around the same time.  The claimant sustained a right knee \n\nJOHNSON – H004413                                                             11 \nsprain on June 2, 2020, which is confirmed by the August 21, 2021 [sic] \nwhich also revealed severe degenerative findings of tricompartmental \nosteoarthritis with cartilage loss, small joint effusion, very small Baker’s \ncyst, complex macerated tear of the posterior horn, and the MCL sprain.  \nThe total knee replacement recommended by Dr. Adam Smith is causally \nrelated to claimant’s pre-existing degenerative condition and not his \ncompensable injury.” \n  The parties agreed to litigate the following issues:  \n(1) Whether the Claimant is entitled to additional \nmedical treatment and associated expenses in \nrelation to his comparable right knee injury of \nJuly 2, 2020. \n \n(2) Whether the Claimant is entitled to temporary \ntotal disability benefits from November 13, 2020, \nthrough a date yet to be determined; and, \n \n(3) Attorney’s fees in relation to controverted \nindemnity benefits. \n \n After a hearing, an Administrative Law Judge filed an opinion \non June 23, 2022.  The Administrative Law Judge found: \n1.  The parties’ stipulations are accepted as \nfindings of fact herein, inclusive of the \nCommission’s jurisdiction over this claim; \n \n2.  The claimant has failed to prove, by a \npreponderance of the credible evidence, that he \nis entitled to additional medical treatment in \nrelation to his compensable right knee injury of \nJuly 2, 2020, and has consequently failed to \nprove that he is entitled to additional temporary \n\nJOHNSON – H004413                                                             12 \ntotal disability benefits from November 13, 2020, \nthrough a date yet to be determined; and,  \n \n3.  All other issues are reserved. \n \n The claimant appeals these findings to the Full Commission. \n II.  ADJUDICATION \n       A.  Additional Medical Treatment \n       An employer shall promptly provide for an injured employee \nsuch medical treatment as may be reasonably necessary in connection with \nthe injury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that he is entitled to additional medical \ntreatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 \n(1999).  What constitutes reasonably necessary medical treatment is a \nquestion of fact for the Commission.  Wright Contracting Co. v. Randall, 12 \nArk. App. 358, 676 S.W.2d 750 (1984). \n  Reasonable and necessary medical services may include \nthose necessary to accurately diagnose the nature and extent of the \ncompensable injury; to reduce or alleviate symptoms resulting from the \ncompensable injury; to maintain the level of healing achieved; or to prevent \nfurther deterioration of the damage produced by the compensable injury.  \nJordan v. Tyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995).  A \nclaimant does not have to support a continued need for medical treatment \n\nJOHNSON – H004413                                                             13 \nwith objective findings.  Chamber Door Industries, Inc. v. Graham, 59 Ark. \nApp. 224, 956 S.W.2d 196 (1997). \n  An employee is not required to prove that his compensable \ninjury is the major cause for the need for treatment unless he is seeking \npermanent benefits; when the employee has suffered a specific injury and \nis only seeking medical benefits and temporary total disability, the major-\ncause analysis is not applicable and the employee need only show that the \ncompensable injury was a factor in the need for additional medical \ntreatment.  Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d \n383 (2004). \n  When the primary injury is shown to have arisen out of and in \nthe course of employment, the employer is responsible for any natural \nconsequence that flows from that injury; the basic test is whether there is a \ncausal connection between the two episodes.  See generally Wackenhut \nCorp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001); Air Compressor \nEquipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (2000); Jeter v. B.R. \nMcGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998). \n  The claimant had a pre-existing degenerative condition that \nwas aggravated by his work accident.  The respondents accepted this injury \nas compensable and provided treatment until November 13, 2020.    \n  Because the claimant’s right knee was not improving with \nconservative treatment, Dr. Siems recommended that the claimant undergo \n\nJOHNSON – H004413                                                             14 \na right total knee arthroplasty.  Additionally, Dr. Adam Smith examined the \nclaimant on one occasion and also determined that the claimant needed a \ntotal knee arthroplasty.  Therefore, the Full Commission finds that the right \nknee total arthroplasty was reasonably necessary.  Also, we find that the \nsubsequent interventions that occurred following the right knee arthroplasty \ninfection are compensable consequences of his compensable right knee \ninjury. \n  The remaining issue is whether the reasonably necessary \ntreatment was connected to the claimant’s work injury.  It is clear that the \nclaimant’s work incident was a factor in his need for additional medical \ntreatment.  See Williams, supra.  Although Dr. Siems indicated that he had \ndiscussed a right total knee replacement as a possible treatment option for \nthe claimant in 2018, he also testified that, the need for a total joint \nreplacement “really has to do with just how much pain somebody’s in on a \ndaily basis and how it affects the function of their knee and their ability to \nwork”.    Dr. Siems explained that there is always something that “tips the \nhand for doing a total joint” and “in [the claimant’s] situation, he was \nfunctioning and working and was able to work and then he couldn’t after this \nincident at work”.  Additionally, Dr. Siems unequivocally testified that the \nwork-related incident accelerated the claimant’s need for a right knee \narthroplasty.   \n\nJOHNSON – H004413                                                             15 \n  In addition to Dr. Siems’ testimony, the claimant testified that \nprior to his work accident, he had no plans to have a right knee \nreplacement.  The claimant explained that because he received such \nsignificant relief from his left knee replacement, there was no need for him \nto undergo the right knee replacement.   \n  The claimant’s work accident does not have to be the major \ncause for the need for treatment, it merely has to be a factor in the need for \ntreatment.  The claimant’s July 2, 2020, work accident was clearly a factor \nin the claimant’s need for the right total knee arthroplasty.  Thus, based on \nthe aforementioned, we find that the surgery is reasonable, necessary, and \ncausally connected to the claimant’s compensable injury. \n  Therefore, the Full Commission finds that the claimant has \nproven by a preponderance of the evidence that he is entitled to reasonable \nand necessary medical treatment provided in relation to his compensable \nright knee injury, including a right knee arthroplasty and treatment that was \nprovided following his right knee arthroplasty infection.  \n  B.  Additional Temporary Total Disability Benefits \n  Ark. Code Ann. §11-9-521 provides that for scheduled \ninjuries, an injured worker is entitled to temporary total benefits during the \nhealing period or until the employee returns to work.  It is not necessary for \na claimant with a scheduled injury to prove that he is totally incapacitated \nfrom earning wages in order to collect temporary total disability benefits.  \n\nJOHNSON – H004413                                                             16 \nFendley v. Pea Ridge Sch. Dist., 97 Ark. App. 214, 245 S.W.3d 676 (2006).  \nRather, he is entitled to temporary total disability benefits during his healing \nperiod or until he returns to work, whichever occurs first, regardless of \nwhether he has demonstrated that he is actually incapacitated from earning \nwages.  Wheeler Const. Co. v. Armstrong, 73 Ark. App. 146, 41 S.W.3d 822 \n(2001).  \n   “Healing period” means that period for healing of an injury \nresulting from an accident.  Ark. Code Ann. §11-9-102(12).  The healing \nperiod has not ended so long as treatment is administered for the healing \nand alleviation of the condition. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark. \nApp. 200, 785 S.W.2d 51 (1990); Mad Butcher Inc. v. Parker, 4 Ark. App. \n124, 628 S.W.2d 582 (1982). \n  The Full Commission finds that the claimant is entitled to \nadditional temporary total disability benefits.   In the present matter, the \nclaimant suffered a compensable injury to his right knee.  Dr. Siems \ntestified that he had taken the claimant off work and that he believed that he \nremained off work at the time of his deposition on March 22, 2022.   Since \nthe claimant sustained a scheduled injury, remained within his healing \nperiod, and has not returned to work, the claimant is entitled to additional \ntemporary total disability. \n\nJOHNSON – H004413                                                             17 \n       Based on the foregoing, the Full Commission finds that the \nclaimant is entitled to temporary total disability benefits beginning on \nNovember 13, 2020, and continuing to a date yet to be determined. \n   III. Conclusion     \n   Based on our de novo review of the entire record, the Full \nCommission finds that the claimant has proven by a preponderance of the \nevidence that he is entitled to reasonable and necessary medical treatment \nprovided in relation to his compensable right knee injury, including a right \nknee arthroplasty and treatment that was provided following his right knee \narthroplasty infection and additional temporary total disability benefits \nbeginning on November 13, 2020 and continuing to a date yet to be \ndetermined.  The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a) (Repl. 2012).   For prevailing \non appeal to the Full Commission, the claimant’s attorney is entitled to an \nadditional fee of five hundred dollars ($500), pursuant to Ark. Code Ann. \n§11-9-715(b) (Repl. 2012). \n \n IT IS SO ORDERED. \n \nSCOTTY DALE DOUTHIT, Chairman \n \n \n      ______________________________________ \nM. SCOTT WILLHITE, Commissioner  \n\nJOHNSON – H004413                                                             18 \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n    I must respectfully dissent from the Majority’s determination \nthat the claimant is entitled to reasonable and necessary medical treatment \nprovided in relation to his compensable right knee injury; including a right \nknee arthroplasty and treatment that was provided following his right knee \narthroplasty infection and additional temporary total disability benefits \nbeginning on November 13, 2020 and continuing to a date yet to be \ndetermined.  \n  As noted by the Administrative Law Judge (“ALJ”) in this \nmatter, it is well known that in workers’ compensation law, an employer \ntakes the employee as he finds him. Heritage Baptist Temple v. Robison, \n82 Ark. App. 460, 120 S.W.3d 150 (2003). Employment circumstances \nwhich aggravate pre-existing conditions are compensable; however, being \na new injury, an aggravation must meet the definition of a compensable \ninjury in order to establish compensability. Id. (citing Farmland Ins. Co. v. \nDuBois, 54 Ark. App. 141, 923 S.W.2d 883 (1996). There is no presumption \nthat a claim is compensable, or that medical treatment is reasonable and \nnecessary. O.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d. 224 \n(1979). In determining whether a claimant has sustained his burden of \n\nJOHNSON – H004413                                                             19 \nproof, the Commission shall weigh the evidence impartially, without giving \nthe benefit of the doubt to either party. Ark. Code Ann. § 11-9-704; Wade v. \nMr. C Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989); Fowler v. \nMcHenry, 22 Ark. App. 196, 737 S.W.2d 663 (1987). When it comes to \nstatements made by the claimant as a witness, the credibility and weight of \nthose statements are within the exclusive providence of the Commission. \nYates v. Boar’s Head Provisions Co., 2017 Ark. App. 133, 514 S.W.3d 514 \n(2017). In fact, determinations of compensability may hinge entirely upon \nthe Commission’s determination of weight and credibility. Id. \n  In the present case, the claimant was the only individual to \ntestify at the March 29, 2022 hearing. Dr. Martin Siems testified via \ndeposition taken March 22, 2022. The claimant testified that prior to his July \n2, 2020 right knee injury, he had suffered from bilateral knee arthritis “for a \nwhile,” and Dr. Siems performed a total left knee replacement in 2017. (Tr., \nP. 16; Resp. Med. Ex., Pp. 37-38). It is noted throughout the claimant’s \nmedical records that he suffered from osteoarthritis in both knees for years \nbefore his compensable right knee injury on July 2, 2020. (See Resp. Med. \nEx., P. 16). Dr. Siems noted in his clinical report dated December 1, 2017, \n“Arthritis knees/ DJD; chronic/ both knees.” (See Resp. Med. Ex., Pp. 34-\n36). He was prescribed several narcotics for pain management for a \nnumber of years prior to his 2020 injury and received a steroid injection to \naddress his right knee pain in 2018. Dr. Siems noted in his deposition he \n\nJOHNSON – H004413                                                             20 \ninjected the claimant’s right knee to decrease the inflammation caused by \narthritis. (See. Resp. Med. Ex., P. 31; Joint Ex. 1, P. 12-13). \n  The claimant ultimately returned to Dr. Siems following his \n2020 injury when, according to his testimony, he could no longer put on his \nown shoes or socks or walk to his dock to go fishing. (Tr. P. 19; 22-23). At \nthat time, Dr. Siems reported significant osteophyte formation and joint \nspace narrowing in the right knee consistent with previously diagnosed \nosteoarthritis. (Cl. Med. Ex., P. 21). MRI results showed tricompartmental \nosteoarthritis with severe, grade four, cartilage loss. (Cl. Med. Ex., P. 25.) \nDr. Siems agreed in his deposition testimony that these findings are \ndegenerative. (Joint Ex. 1, P. 19-20). There was, however, a complex \nmacerated tear of the medial meniscus; however Dr. Siems testified this \nwas also a degenerative finding, and that the macerated tear pre-existed \nthe claimant’s 2020 injury. Id. The claimant ultimately underwent a total \nright knee replacement paid by his private health insurance on March 15, \n2021. The preoperative and postoperative diagnoses were both right knee \nosteoarthritis. (Tr., Pp. 23-24; Cl. Med. Ex., Pp. 57-58). Dr. Siems \nconducted both the initial knee replacement and subsequent revisions. (Tr., \nPp. 24-25; Cl. Med. Ex., Pp. 57-58, 70, 72-73). Dr. Siems’ stated during his \ndeposition that the claimant needed a right knee replacement “because he \nwas having symptomatic arthritis of the knee;” however, his testimony \nreflects that he believes that the 2020 injury may have tipped the course \n\nJOHNSON – H004413                                                             21 \ntowards knee replacement. (Joint Ex 1., Pp. 21, 23-24). “[W]here a medical \nopinion is sufficiently clear to remove any reason for the trier of fact to have \nto guess at the cause of the injury, that opinion is stated within a reasonable \ndegree of medical certainty.” Huffy Serv. First v. Ledbetter, 76 Ark. App. \n533, 69 S.W.3d 449 (2002) (citing Howell v. Scroll Tech., 343 Ark. 297, 35 \nS.W.3d 800 (2001). However, expert opinions based upon \"could,\" \"may,\" \nor \"possibly\" lack the definiteness required to meet claimant's burden to \nprove the causal connection. Id. (citing Frances v. Gaylord Container Corp., \n341 Ark. 527, 20 S.W.3d 280 (2000). \n     The claimant was first seen by Dr. Siems on October 4, 2017 and \non the intake form indicated he was having issues with both his left and \nright knees. (Tr., Pp. 6-7). During his initial examination by Dr. Siems, he \ncomplained of bilateral knee pain and Dr. Siems found the examination of \nthe left and right knee to be identical. Id. at 9. According to Dr. Siems’ \nnotes, the x-ray revealed arthritis in the right knee. Id. at 10. At the time of \nthe initial visit with Dr. Siems, the claimant described the pain as moderate \nin his left and right knees and noted the pain level was 8 out of 10 in both \nknees. Id. at 23. Dr. Siems injected the claimant’s right knee because of the \npain. Id. In a follow-up visit on February 13, 2018, Mr. Johnson complained \nto Dr. Siems of continued pain in his right knee and was assessed with right \nknee arthritis. Id. at 12-13. According to Dr. Siems, as early as February \n2018 a total right knee replacement was a possibility. (Tr., P. 14). Prior to \n\nJOHNSON – H004413                                                             22 \nthe claimant’s compensable right knee injury on July 2, 2020, the claimant \nwas taking several medications used for arthritic pain including ketoprofen, \ngabapentin, meloxicam, Lidoderm, and hydrocodone. Id. at 16. Dr. Siems \nstated during his deposition that the osteophyte formation, joint space \nnarrowing, severe osteoarthritis, and diffuse crepitus predated the injury on \nJuly 2, 2020 and were not caused by the compensable injury on July 2, \n2020. Id. at 16-17. Likewise, he stated in his deposition that the MRI \nfindings of tricompartmental osteoarthritis with cartilage loss and macerated \ntear of the medial meniscus were degenerative findings and not caused by \nthe July 2, 2020 compensable injury. Id. at 18-20. According to the \ndeposition testimony of Dr. Siems, the claimant required a total knee \nreplacement because he was having symptomatic arthritis of the knee. Id. \nat 21. \n     It is clear from the evidence that as far back as October 4, 2017, \nnearly three (3) years prior to the compensable injury on July 2, 2020, the \nclaimant was being treated for several degenerative right knee issues. This \ntreatment consisted of multiple prescription medications and injections. His \ntreating physicians noted as early as 2017 that he was going to be a \ncandidate for right knee replacement as a result of his severe degenerative \ncondition. Injured employees have the burden of providing by a \npreponderance of the evidence that the medical treatment sought is \nreasonable and necessary for the treatment of a compensable injury. \n\nJOHNSON – H004413                                                             23 \nOwens Planting Co. v. Graham, 102 Ark. App. 299, 284 S.W.3d537 (2008). \nWhat constitutes reasonable and necessary treatment is a question of fact \nfor the Commission, and there is no presumption that a claim is \ncompensable or that medical treatment is reasonable and necessary. Id.; \nO.K. Processing, Inc. v. Servold, 265 Ark. 352, 578 S.W.2d 224 (1979).  \n     I cannot agree with the majority that the claimant has established \nthat his right knee replacement and continued treatment are causally related \nto his work-related injury. The claimant had been receiving treatment for \nsevere degenerative problems in his right knee for years prior to his June 2, \n2020 injury. He was taking numerous prescription medications and receiving \nsteroid injections in his right knee for years prior to his compensable injury. \nHis treating physicians had opined years prior to his compensable injury that \nhe would be a candidate for a total knee replacement of his right knee. The \nultimate cause of the claimant’s right knee replacement was pre-existing \nosteoarthritis which was symptomatic many years prior to his work injury and \nit is clear from the record that the cause of the claimant’s right total knee \nreplacement was his  pre-existing degenerative condition, which predated \nhis compensable injury by many years. \n     The only medical proof presented concerning causation was the \nstatement by Dr. Siems that the 2020 injury “may” have tipped the course \ntowards knee replacement. The law is clear in this State that expert \nopinions based upon “may” lack the definiteness required to meet the \n\nJOHNSON – H004413                                                             24 \nclaimant’s burden to prove the causal connection and does not meet the \nstandard of proof within a reasonable degree of medical certainty. \n     For the reasons stated above, I respectfully dissent. \n \n      \n \n     \nMICHAEL R. MAYTON, Commissioner","textLength":33691,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H004413 STEPHEN L. JOHNSON, EMPLOYEE CLAIMANT PULASKI COUNTY SPECIAL SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, WCT., CARRIER/TPA RESPONDENT OPINION FILED APRIL 4, 2023 Upon review before the FULL COMMISSION, Little Rock, Pulas...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["knee","back","sprain","fracture"],"fetchedAt":"2026-05-19T22:29:46.476Z"},{"id":"full_commission-H103763-2023-04-04","awccNumber":"H103763","decisionDate":"2023-04-04","decisionYear":2023,"opinionType":"full_commission","claimantName":"Elizabeth Salto","employerName":"University Of Arkansas Fayetteville","title":"SALTO VS. UNIVERSITY OF ARKANSAS FAYETTEVILLE AWCC# H103763 APRIL 4, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Salto_Elizabeth_H103763_20230404.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Salto_Elizabeth_H103763_20230404.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H103763 \n \nELIZABETH SALTO, \nEMPLOYEE \n \nCLAIMANT \nUNIVERSITY OF ARKANSAS FAYETTEVILLE,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 4, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \n The claimant appeals an administrative law judge’s opinion filed July \n27, 2022.  The administrative law judge found that the claimant failed to \nprove she was entitled to additional medical treatment.  After reviewing the \nentire record de novo, the Full Commission reverses the administrative law \njudge’s opinion.  We find that the claimant proved she was entitled to \nadditional medical treatment in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).       \nI.  HISTORY \n\nSALTO - H103763  2\n  \n \n \n Elizabeth Salto, now age 43, testified that she became employed as \na custodian for the respondent-employer, University of Arkansas, in 2018.  \nThe parties stipulated that the employee-employer relationship existed on \nFebruary 12, 2021, on which date the claimant “sustained a compensable \ninjury to her tailbone (coccyx fracture).”  The claimant testified that she \nslipped on ice and fell on her buttocks.       \n According to the record, the claimant treated at Arkansas \nOccupational Health Clinic on February 22, 2021: \nAt the request of and authorization by University of Arkansas, \nwe are seeing Elizabeth Salto.... \nPatient states she was going to the building to start her duties.  \nShe states she slipped on ice and fell down the stairs onto her \nbottom.  She states she is having pain in the bottom, lower \nback and neck.... \nFaded bruising is present to left Sacrum.... \n \n Amanda Bell, APRN diagnosed “1.  Sacrum/Coccyx contusion.”  Ms. \nBell planned conservative treatment.    \n An MRI of the claimant’s pelvis was taken on March 17, 2021 with \nthe impression, “Focal edema involving the tip of the coccyx, consistent with \nan acute nondisplaced fracture.”   \n It was planned in part on March 18, 2021, “She agrees to Physical \nTherapy referral to help with her low back and sacral pain & improve her \nfunctioning.”   \n\nSALTO - H103763  3\n  \n \n \n An investigator with Meridian Investigative Group performed \nsurveillance of the claimant on four dates beginning April 21, 2021.  The \ninvestigator concluded, “The claimant appeared to move in a fluid, \nunrestricted manner.  No visible braces or supports were observed.”   \n Dr. Mark Miedema reported on April 29, 2021: \nMrs. Salto presents for evaluation of 2-1/2 months low back \nand tailbone pain.  She had a work-related injury on \n2/12/2021.  She had a slip and fall onto her back and buttock \nand fell down about 3 steps which precipitated her symptoms.  \nShe was not having pain prior to this incident.  She has been \ngoing to physical therapy, exercising at home, taking \ngabapentin and methocarbamol.   \nOn my review of her pelvic MRI done at Mana on 3/17/2021 \nthat showed edema within the tip of the coccyx consistent with \nan acute nondisplaced fracture.... \nI educated the patient on conservative treatment options \nincluding physical therapy, home exercise program, healthy \ndiet and lifestyle, acupuncture, massage, chiropractic care, \npharmacotherapy and injections.   \nI encouraged her to continue with physical therapy and home \nexercising is already in progress.   \nShe has [an] acute nondisplaced coccyx fracture as result of \nher work injury.  I encouraged her this should continue to heal.  \nThese typically take 6 to 12 weeks to heal.  I am hopeful that \nin another month she will be feeling almost back to normal.   \nGiven the severity of the patient’s pain and functional \nlimitation and no relief or inability to tolerate conservative \nmeasures, we will proceed with a ganglion impar block for \ndiagnostic and therapeutic purposes.   \nI do not yet think she has reached maximal medical \nimprovement.  She may return to work next week with no \nrestrictions.  I do not expect this injury to result in a permanent \nimpairment or require surgery.  I think she will have reached \nMMI in approximately one more month.   \nI will plan to follow-up with this patient after this procedure to \nreassess their progress.   \n \n\nSALTO - H103763  4\n  \n \n \n Dr. Miedema assessed “1.  Low back pain,” “2.  Pain in the coccyx,” \nand “3.  Fracture of coccyx.”    \n Dr. Miedema performed a Lumbar Sympathetic Ganglion Impar \nBlock on July 1, 2021.  The claimant testified on cross-examination that she \ndid not benefit from this procedure.   \n An MRI of the claimant’s pelvis was taken on July 26, 2021 and was \ncompared with the March 17, 2021 study: \nThere are a few well-circumscribed fat intensity lesions within \nthe sacrum and right ilium, the largest of which measures 1.1 \ncm.  The previously seen focal edema at the tip of the coccyx \nhas resolved.  No evidence of a fracture is seen.... \n  IMPRESSION:  1.  No evidence of a fracture is seen.   \n \n The claimant followed up with Dr. Miedema on August 5, 2021: \nMrs. Salto presents for follow-up evaluation of 5.5 months low \nback and tailbone pain.  To review she had a slip and fall \nwhile at work on 2/12/2021 which precipitated her symptoms.  \nShe has been going to physical therapy, exercising at home, \ntaking gabapentin and methocarbamol without relief.  She is \nhere to review recent MRI.   \nOn my review of her pelvic MRI done at Ozark on 7/24/2021 \nthis was normal with resolution of the edema previously seen \nat the tip of the coccyx and no evidence of fracture.  To review \npelvic MRI done at Mana on 3/17/2021 showed edema within \nthe tip of the coccyx consistent with an acute nondisplaced \nfracture.... \nI encouraged her to continue with physical therapy and home \nexercising is already in progress.... \nShe had a nondisplaced coccyx fracture as result of her work \ninjury.  I encouraged her this is healed [on] her most recent \nMRI.   \nShe is s/p a ganglion impar block on 7/1/21 with unfortunately \nlimited relief.  I encouraged her she will continue to improve \n\nSALTO - H103763  5\n  \n \n \nwith time.  I will refill her methocarbomol as an adjuvant for \npain relief and muscle spasms.   \nI think she has reached maximal medical improvement.  I do \nnot think this injury has caused permanent impairment.  She \nmay continue to work with no restrictions.   \nI will follow-up with her as needed.   \n \n Dr. Kenton Hagan examined the claimant on September 8, 2021: \nThe patient complains of sacrococcygeal joint pain, stiffness, \nand weakness.  It is constant, sharp, stabbing, tender to \ntouch, and numbing pain.  The symptoms are 7 out of 10 \ncurrently.  The symptoms have been present for 8 months.  \nThe symptoms have been treated with epidural steroid \ninjection and physical therapy.  The condition is worse with \nsitting, worse with standing, worse during the day, and worse \nduring the night.... \nImpression/Plan:   \nPain over coccyx after fall at work.   \nPrior epidural and MRI with Dr. Miedema at Ozarks.  MRI and \nrecords are not available to review. \nDoes not want another injection due to pain of procedure. \nDiscussed options and agree to Celebrex and starting pelvic \nPT (Charla Cox).   \n \n The claimant testified on direct examination: \nQ.  We have [Dr. Hagan’s] records in evidence and they seem \nto reflect that he wanted you to have some pelvic physical \ntherapy.  Is that correct? \nA.  That is correct.   \nQ.  And was that the same type of physical therapy you had \nhad before? \nA.  No. \nQ.  Were you able to have that physical therapy? \nA.  I went about two to three times and then they said that \nthey were not going to cover it anymore. \nQ.  Okay.  And in that therapy, what were you doing? \nA.  She was teaching me breathing methods, meditating to \nease the pain.  I had to do some exercises.  Like with \ntouching, she tried doing stuff and I couldn’t do the touching at \nthat point, so we were going to work towards where I was \n\nSALTO - H103763  6\n  \n \n \nokay where she could touch, but I didn’t get to finish my \ntreatment.   \nQ.  Did you get to return to Dr. Hagan? \nA.  They said I couldn’t go back.     \n  \nThe record contains a Change of Physician Order dated September \n10, 2021:  “A change of physician is hereby approved by the Arkansas \nWorkers’ Compensation Commission for Elizabeth Salto to change from Dr. \nMark Miedema to Dr. Kenton Hagan[.]”   \nThe claimant treated with a physical therapist, Jacquelynn M. \nSaravane on September 21, 2021 and September 24, 2021.    \nThe claimant visited telephonically with Dr. Francisco Avalos, La \nSagrada Familia Medical Clinic, Cicero, Illinois, on October 2, 2021.  Dr. \nAvalos diagnosed “Chronic coccyx fracture pain please excuse!  Myalgia, \nweakness, ambulatory difficulty, lower limb pain.”   \nThe claimant followed up with Dr. Avalos on October 7, 2021. \nThe claimant treated with Ms. Saravane on October 15, 2021.     \nDr. Avalos’ recommendation on November 2, 2021 was a “Neurology \nconsult.”   \nDr. Avalos diagnosed the following on January 22, 2022:  “Coccyx \nfracture...Please removal (sic) all restrictions (work).  Patient is doing \nbetter.”      \nA pre-hearing order was filed on April 13, 2022.  The claimant \ncontended, “The claimant contends she is entitled to receive additional \n\nSALTO - H103763  7\n  \n \n \nmedical treatment by her authorized treating physician.  The claimant \nreserves all other issues.”   \n The respondents contended, “The respondents contend the claimant \nreported having a fall injury on February 12, 2021 which has been accepted \nas compensable and that the claimant has been provided all benefits to \nwhich she is entitled for her fractured coccyx tailbone injury.  The \nrespondent has provided claimant with medical treatment reasonable and \nnecessary for the compensable injury, including March 17, 2021 and July \n26, 2021 MRI studies, and treatment with Dr. Mark Miedema who treated \nthe claimant conservatively.  Dr. Miedema reviewed both MRI studies and \nreleased the claimant at maximum medical improvement on August 5, 2021 \nwith 0% permanent impairment.  The respondent was provided by \nrespondent her one time change of physician with Dr. Kenton Hagan, whom \nshe saw on September 8, 2021.  Dr. Hagan did not take claimant off work.  \nThe claimant was paid temporary total disability benefits from April 12, 2021 \nuntil May 2, 2021, at which point Dr. Miedema released the claimant to \nreturn to work without restrictions on May 3, 2021.  The claimant \nsubsequently resigned February 28, 2022.”   \n The parties agreed to litigate the following issue:  “1.  Claimant’s \nentitlement to additional medical treatment.”   \n\nSALTO - H103763  8\n  \n \n \n A hearing was held on July 11, 2022.  The claimant testified on direct \nexamination: \n  Q.  How are your symptoms now? \nA.  I am still in pain.  It hurts to sit, to stand.  I just have to be \nmoving from side to side and stuff and I need to take breaks \nand sit down.  But I mean I am not dying, but it is bothering \nme.   \nQ.  And since the accident happened, have you had any new \ninjuries to your back or your buttocks? \nA.  No, ma’am. \nQ.  And what about any improvement, have you ever \ncompletely gotten better during this time? \nA.  No.   \nQ.  What is it that you want from this hearing? \nA.  I just want to continue the sessions I was doing with the \npelvic therapist because she was promising so many things \nand I was really, really looking forward to that and Dr. Hagan \nsaid, also, he wanted to do more things to see and just I want \nto get better.  I just want treatment.   \n \n An administrative law judge filed an opinion on July 27, 2022 and \nfound that the claimant failed to prove she was entitled to additional medical \ntreatment.  The administrative law judge therefore denied and dismissed \nthe claim.  The claimant appeals to the Full Commission. \nII.  ADJUDICATION \n The employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \n\nSALTO - H103763  9\n  \n \n \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).     \n An administrative law judge found in the present matter, “2.  \nClaimant has failed to meet her burden of proving by a preponderance of \nthe evidence that she is entitled to additional medical treatment for her \ncompensable injury.”  The Full Commission does not affirm this finding. \n The parties stipulated that the claimant sustained a compensable \ninjury to her tailbone in the form of a coccyx fracture on February 12, 2021.  \nThe claimant testified that she slipped on ice and fell.  The evidence \ndemonstrates that the claimant has suffered from significant and chronic \npain as result of the compensable injury.  An APRN diagnosed \n“Sacrum/Coccyx contusion” on February 22, 2021 and the claimant was \ntreated conservatively.  An MRI of the claimant’s pelvis on March 17, 2021 \nshowed \"Focal edema involving the tip of the coccyx, consistent with an \nacute nondisplaced fracture.”  The claimant was initially referred to physical \ntherapy on March 18, 2021.   \n\nSALTO - H103763  10\n  \n \n \n Dr. Miedema correctly noted on April 29, 2021 that the claimant “was \nnot having pain” prior to the compensable injury.  Dr. Miedema planned in \npart, “I encouraged her to continue with physical therapy and home \nexercising is already in progress.”  The claimant testified that she did not \nbenefit from an injection performed by Dr. Miedema on July 1, 2021.  The \nfindings from an MRI on July 26, 2021 included the following:  “The \npreviously seen focal edema at the tip of the coccyx has resolved.  No \nevidence of a fracture is seen....IMPRESSION:  1.  No evidence of a \nfracture is seen.”   \n On August 5, 2021, Dr. Miedema reported that he had reviewed the \nJuly 2021 diagnostic study.  Dr. Miedema opined, “I think she has reached \nmaximal medical improvement.”  The Full Commission interprets Dr. \nMiedema’s August 5, 2021 report to indicate that the claimant had reached \nthe end of her healing period for the February 12, 2021 compensable injury.  \nNevertheless, it is well-settled, established law that a claimant may be \nentitled to ongoing medical treatment after the healing period has ended, if \nthe medical treatment is geared toward management of the claimant’s \ninjury.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 \n(2004), citing Hydrophonics, Inc. v. Pippin, 8 Ark. App. 200, 649 S.W.2d \n845 (1983). \n\nSALTO - H103763  11\n  \n \n \n Although he opined that the claimant in the present matter had \nreached maximal medical improvement no later than August 5, 2021, Dr. \nMiedema also plainly stated, “I encouraged her to continue with physical \ntherapy and home exercising is already in progress.”  Dr. Hagan began \ntreating the claimant on September 8, 2021.  Like Dr. Miedema, Dr. Hagan \nrecommended continued physical therapy.  Dr. Hagan specifically planned \n“pelvic PT (Charla Cox).”  The claimant testified that the respondent-carrier \nallowed her to receive some physical therapy before controverting \nadditional treatment.  The claimant received a statutory Change of \nPhysician to Dr. Hagan on September 10, 2021, after the claimant’s first \nvisit with Dr. Hagan on September 8, 2021.  The respondents do not \ncontend that any of the claimant’s treatment of record, including treatment \nwith Dr. Hagan, was unauthorized in accordance with Ark. Code Ann. §11-\n9-514(c)(3)(Repl. 2012).   \n The record indicates that rather than treating with Charla Cox as \nrecommended by Dr. Hagan, the claimant treated with Jacquelynn M. \nSaravane beginning September 21, 2021.  The claimant testified that she \nbenefitted from physical therapy provided by Ms. Saravane.  The claimant \ntestified that she simply wished to receive additional physical therapy in \naccordance with the recommendation of Dr. Hagan.  The claimant bears the \nburden of proving that she is entitled to additional medical treatment.  Ark. \n\nSALTO - H103763  12\n  \n \n \nHealth Ctr. v. Burnett, 2018 Ark. App. 427, 558 S.W.3d 428.  The Full \nCommission finds in the present matter that the claimant proved additional \nphysical therapy was reasonably necessary in connection with her \ncompensable injury. \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved she was entitled to a program of physical therapy \nas recommended by Dr. Hagan.  The claimant proved that said treatment \nwas reasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  For prevailing on appeal to the Full Commission, the \nclaimant’s attorney is entitled to a fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(2)(Repl. 2012).   \n IT IS SO ORDERED.        \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n I must respectfully dissent from the Majority opinion finding that the \nclaimant has proven by a preponderance of the evidence that she is entitled \n\nSALTO - H103763  13\n  \n \n \nto additional medical treatment resulting from her February 12, 2021 \ncompensable injury. \nThe question at hand is not simply whether a treating physician \nfound that additional treatment was necessary for a claimant’s recovery. \nWhen assessing whether medical treatment is reasonably necessary, we \nmust analyze both the proposed procedure and the condition it is sought to \nremedy.  Deborah Jones v. Seba, Inc., Full Workers’ Compensation \nCommission Opinion filed December 13, 1989 (Claim No. D511255). \nTreatments to reduce or alleviate symptoms resulting from a compensable \ninjury; to maintain the level of healing achieved; or to prevent further \ndeterioration of the damage produced by the compensable injury are \nconsidered reasonable medical services.  Foster v. Kann Enterprises, 2009 \nArk. App. 746, 350 S.W.2d 796 (2009).  That being said, any liability for \nadditional medical treatment may extend beyond the healing period but \nmust be geared toward the management of the compensable injury. \nPatchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004). \nWhat constitutes reasonably necessary medical treatment is a question of \nfact for the Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. \n358, 676 S.W.2d 750 (1984).  However, the Commission may not arbitrarily \ndisregard medical evidence.  Pyle v. Woodfield, Inc., 2009 Ark. App. 251, \n306 S.W.3d 455 (2009).  The Commission also has the duty of weighing the \n\nSALTO - H103763  14\n  \n \n \nmedical evidence as it does any other evidence, and resolving any conflict \nis a question of fact for the Commission.  Crow v. Weyerhaeuser Co., 46 \nArk. App. 295, 880 S.W.2d 320 (1994) (citing Chamberlain Group v. Rios, \n45 Ark. App. 144, 871 S.W.2d 595 (1994)).  However, the Commission is \nnot bound by medical opinion, although it may not arbitrarily disregard the \ntestimony of any witness.  It is also entitled to examine the basis for a \ndoctor's opinion in deciding the weight to which that opinion is entitled. Id. \n(citing Reeder v. Rheem Mfg. Co., 38 Ark. App. 248, 832 S.W.2d 505 \n(1992)). \n On April 29, 2021, the claimant was referred to orthopedist Dr. Mark \nMiedema. Dr. Miedema concluded that the claimant had not reached MMI, \nbut that he did not expect her injury to result in permanent impairment or \nrequire surgery.  (Resp. Ex. 1, P. 32).  Dr. Miedema recommended a \nganglion impar block at that time. Id.  At the April 29, 2021 visit, Dr. Midema \nreleased the claimant to work full duty on May 3, 2021 and opined that she \nwould reach MMI in approximately one month. Id.  On July 15, 2021, Dr. \nMiedema examined the claimant, ordered an MRI, and once again released \nthe claimant to work without restriction.  (Resp. Ex. 1, P. 40).  The results of \nthe MRI on July 26, 2021 showed that “the previously seen focal edema at \nthe tip of the coccyx has resolved. No evidence of a fracture is seen.” \n(Resp. Ex. 1, P. 43).  On August 5, 2021, Dr. Miedema “encouraged her \n\nSALTO - H103763  15\n  \n \n \n[the nondisplaced coccyx fracture] is healed on her most recent MRI.” \n(Resp. Ex. 1, P. 50).  Dr. Meidema released the claimant at maximum \nmedical improvement with no permanent impairment on August 5, 2021. Id.  \nThe claimant was later evaluated by Dr. Kenneth Hagan using her \none-time change of physician through the Commission.  She was only seen \nby Dr. Hagan one time and he noted in his report that he did not have Dr. \nMiedema’s findings to review.  (See Resp. Med. Ex., P. 53).  The claimant \ntestified that she later visited with Dr. Francisco Avalos by phone on two (2) \noccasions but never saw him in person and was never examined or treated \nby him.  (Hrng. Trans., Pp. 21-22). \nDr. Miedema’s findings bear greater weight than the opinions of \neither Dr. Hagan or Dr. Avalos.  Dr. Miedema is an orthopedic specialist \nand is the only physician who treated, examined, and tested the claimant \nnumerous times.  Further, Dr. Miedema reviewed the results of the July 26, \n2021 MRI showing that the fracture was healed while neither Dr. Hagan nor \nDr. Avalos accessed or reviewed those records.  In fact, Dr. Avalos, a \ngeneral practitioner, never met with the claimant in person and Dr. Hagan \nonly saw her one time. \nBased upon the facts presented, the claimant’s testimony, and \nreports from the treating physicians and physical therapist, Dr. Mark \nMiedema’s opinion must bear the greatest weight.  After reviewing two \n\nSALTO - H103763  16\n  \n \n \nMRIs nearly six months after the claimant’s injury, Dr. Miedema determined \nthat the claimant did not need any additional medical treatment and was \ncapable of full duty work with no restrictions.  The ALJ’s findings were \ntherefore well-reasoned. \nFor these reasons, I respectfully dissent.   \n                                                                      \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":22898,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H103763 ELIZABETH SALTO, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FAYETTEVILLE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 4, 2023","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["fracture","back","neck","lumbar"],"fetchedAt":"2026-05-19T22:29:46.488Z"},{"id":"full_commission-H103797-2023-04-04","awccNumber":"H103797","decisionDate":"2023-04-04","decisionYear":2023,"opinionType":"full_commission","claimantName":"Robert Powers","employerName":"University Of Arkansas Fayetteville","title":"POWERS VS. UNIVERSITY OF ARKANSAS FAYETTEVILLE AWCC# H103797 & H103798 & H201158 APRIL 4, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Powers_Robert_H103797_H103798_H201158_20230404.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Powers_Robert_H103797_H103798_H201158_20230404.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NOS.  H103797, H103798 & H201158  \n \nROBERT POWERS, \nEMPLOYEE \n \nCLAIMANT \nUNIVERSITY OF ARKANSAS FAYETTEVILLE,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED APRIL 4, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as modified. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nAugust 18, 2022.  The administrative law judge found that the claimant \nproved he was entitled to additional medical treatment “for his left knee \ninjury.”  After reviewing the entire record de novo, the Full Commission \naffirms the administrative law judge’s opinion as modified.  The Full \nCommission finds that the claimant proved he sustained a compensable left \nknee injury as a natural consequence of his compensable back injury.     \nI.  HISTORY \n\nPOWERS – H103797, H103798, H201158  2\n  \n \n \n Robert John Powers, now age 56, testified that he became employed \nas a Master Plumber for the respondents, University of Arkansas, in 2005.  \nThe record indicates that the claimant sustained a work-related back injury \non or about August 29, 2019.  A medical provider reported on September 6, \n2019 that the claimant had sustained a Strain or Tear to his “Lower Back \nArea (Trunk)” on August 29, 2019.  It was noted, “Robert was carrying parts \nboxes into the basement through the quad.  He felt a strain in his lower left \nback.”  An x-ray of the claimant’s lumbar spine was taken on September 3, \n2019 with the impression, “1.  Mild disc space narrowing at L5-S1.  No \ncompression deformity or subluxation identified in the lumbar spine.  2.  \nMild bilateral acetabular spurring.”   \n Dr. Mark Miedema reported on November 24, 2020: \nMr. Powers presents for evaluation of 1 year intermittent low \nback pain.  This was a work related lifting injury.  He was \nlifting and carrying heavy boxes on 8/29/19 when he had \nonset of pain.  He works plumbing at the University of \nArkansas.  He never went through any treatments.  His pain \nsubsided for a time but has resurfaced several times over the \npast year it has particularly been worse over the last few \nweeks.  He is not having any leg pain at this time.   \n \n Dr. Miedema assessed “1.  Low back pain....2.  Degeneration of \nlumbosacral intervertebral disc....3.  Lumbar spondylosis....4.  Lumbosacral \nradiculopathy.”  Dr. Miedema treated the claimant conservatively.   \n\nPOWERS – H103797, H103798, H201158  3\n  \n \n \n An MRI of the claimant’s lumbar spine was taken on January 15, \n2021 with the impression, “Lower lumbar spondylosis, worst at the L4-5 and \nL5-S1 levels.  At L5-S1, there is a central disc extrusion measuring 7 mm.”   \n A Change of Physician Order on July 20, 2021 provided in part, “the \nclaimant is rescheduled with James Blankenship, M.D.”  Dr. James B. \nBlankenship examined the claimant on July 26, 2021: \nThe patient has lower back and bilateral hip pain with buttock \npain, right greater than left.  He has occasional bilateral lower \nextremity pain to his feet.  He has been having increasing \ncramping in his leg....He was injured on the job in November \nof 2020 when he was lifting some heavy equipment and had \nthe immediate onset of pain.  He did six months of physical \ntherapy with some transient relief.  He has been working at full \nduty.  He had an LESI with no significant relief.... \nHe has failed routine and usual conservative measures.  I told \nhim that given the fact that his pain duration is now eight \nmonths, it is unlikely that he is going to make any \nimprovement over where he is.  I told him the problem is not \nso much the herniated disc.  The problem has to do with the \nmalalignment and the instability.   \nI told him that if he elected for surgical intervention, my \nrecommendation would be an anterior lumbar interbody \narthrodesis at L5-S1 with posterior decompression and \ndiscectomy on the left-hand side with Bridgepoint clamping.... \n \n An MRI of the claimant’s lumbar spine taken October 13, 2021 \nshowed abnormalities which included “gross annular fissuring.”       \nThe parties stipulated that the employee-employer-carrier \nrelationship existed on January 18, 2022.  The claimant participated in a \nFunctional Capacity Evaluation on January 18, 2022: \n\nPOWERS – H103797, H103798, H201158  4\n  \n \n \nMr. Robert Powers is referred to Functional Testing Centers, \nInc. for the purpose of undergoing a comprehensive functional \ncapacity evaluation to determine his current functional \nstatus.... \nMr. Powers is referred with complaints of on-going pain in his \nlow back which he attributed to injuries he sustained in a \nwork-related accident.... \nConsistency of effort testing obtained during this evaluation \nindicate significant observational and evidence-based \ninconsistencies resulting in self-limiting behavior and sub-\nmaximal effort.  The results of this evaluation indicate that an \nunreliable effort was put forth, with 26 of 54 consistency \nmeasures within expected limits.... \nMr. Powers completed functional testing on this date with \nunreliable results.   \nOverall, Mr. Powers demonstrated the ability to perform work \nin at least the LIGHT classification of work as defined by the \nUS Dept. of Labor’s guidelines over the course of a normal 8-\nhour workday with limitations as noted above.... \nMr. Powers left the facility with the same gait patterns he had \nbeen exhibiting throughout testing.  His pace of movement \nwhen leaving the testing area was measured at 2.7 ft/sec. and \nhe exhibited no limp or altered gait pattern as he exited the \nfacility and entered a vehicle.... \nMr. Powers made no complaints or references to any new or \ndifferent areas or regions of pain that he wasn’t experiencing \nat the start of this evaluation.   \n \n The claimant testified on direct examination: \nQ.  At the end of that FCE, did you have an incident occur \nwith your left knee? \n  A.  Yes. \n  Q.  What happened? \nA.  It was towards the end of the test and he had me – he put \nsome weights on the ground and he asked me to pick it up.  \nAnd then I asked him how much weight it was and he told me \nhe couldn’t tell me the weight, you know, what it was. \nQ.  Why were you concerned about the weight? \nA.  I didn’t want to injure my back.   \nQ.  Were you on restrictions at that point as well? \nA.  Yes. \n\nPOWERS – H103797, H103798, H201158  5\n  \n \n \nQ.  Okay.  So then what happened? \nA.  I spread my legs and with my back being out, I used my \nknees and just go straight down on my back instead of \nbending my back.  And I went to pick it up and when I got it, I \ndon’t know, anywhere from 12 inches off the ground or so and \nI just felt my left knee pop.   \nQ.  Did you say anything about that? \nA.  Yes, I did....I told him my knee popped and he just kept \ngoing.   \nQ.  Okay. \nA.  Like kind of ignored me.   \nQ.  All right.  So at that point you said you had the weight off \nthe ground.  What did you do then? \nA.  He told me to – once I had it up, he had – I don’t know how \nmany feet it was, but he had me to carry it across the room \nand then turn around and come back and set it in the chair. \nQ.  And how much testing did you do after that movement? \nA.  I think that was the end of it.... \nQ.  Now, after you left, what did you do? \nA.  I went home and put an ice bag of peas on my left knee.   \nQ.  Okay.  And the next day, what happened? \nA.  I was hurting even worse.  My whole body was aching, but \nmy knee was really bad and I just sat there in my chair with an \nice pack or a bag of peas on it.   \nQ.  Did you try to contact the therapist? \nA.  I texted him. \n \n At hearing, the claimant submitted into evidence a text message \ndated January 19, 2022:  “This is Robert Powers.  My left knee is injured \nfrom the test yesterday.”  The claimant received a reply, “You need to \nspeak to your adjuster and Dr. Blankenship.”   \n The claimant texted “Debbie” on January 20, 2022:  “This is Robert \nPowers my left knee got injured from the test I need to see a doctor.”  The \nclaimant received a reply, “I will forward this to adjuster regarding approval.”   \n\nPOWERS – H103797, H103798, H201158  6\n  \n \n \nMuhannad Abdin, CNA noted on January 27, 2022, “Pt. reports \ninjuring his left knee during his workmen’s compensation evaluation \n1/18/22.”  Mr. Abdin diagnosed “Left knee injury.”   \nDr. Deborah Deere saw the claimant on January 28, 2022:  “Has a \nworkers comp back claim and was doing a functional study on 1/18, he was \nasked to lift a wt from the floor and injured his left knee.  States that he felt \na pop and was in a chair for 2 days with ice on it afterwards.  Normal gait, \nno previous injury to that knee.”  The claimant was provided a left neoprene \nknee sleeve, and he was referred to orthopedics.     \nDr. Blankenship reported on January 31, 2022: \nMr. Powers has elected not to have surgery.  We have \ndischarged him from our clinic.  I have reviewed his functional \ncapacity evaluation.  He gave unreliable effort with 26 out of \n54 consistency measures.  In that situation, it is unlikely that I \nwould offer the patient surgical intervention if he changes his \nmind in the future.  I am not saying that the gentleman is \nmalingering.  What I am saying is that he has inappropriate \nillness behavior.  The gentleman does have sagittal plane \nmalalignment with instability with annular fissuring which \nwould be considered a disc herniation....He would qualify for \n5% impairment to the body as a whole.  His additional level \nwould bring this up one more percent to a 6% impairment to \nthe body as a whole....This narrative has been based on a \nreasonable degree of medical certainty and a review of his \ncomplete medical records and his functional capacity \nevaluations.   \n \n On January 31, 2022, a claims specialist with the respondent-carrier \nqueried Charles Davidson and Casey Garretson, representatives of \nFunctional Testing Centers, Inc.  The claims specialist asked, among other \n\nPOWERS – H103797, H103798, H201158  7\n  \n \n \nthings, “Can you tell me if Mr. Powers reported an injury to his left knee at \nany time during his testing?”  Mr. Davidson and Mr. Garretson replied in \npart: \nYou will see on his intake paperwork (Pain Drawing attached) \nthat Mr. Powers had already indicated before any testing was \nperformed that he had bilateral leg and knee pain.... \nMr. Powers did not report “popping” of either knee and there \nwas no audible crepitation or popping noted at any time during \nthis evaluation.   \nMr. Powers began testing with a normal gait pattern while \nwalking at a moderate pace with normal arm swing as noted \non page 7 of the report.  All lifting was stopped by Mr. Powers \nwith complaint of his low back that he described as “straining.”  \nIt was further documented that his lifts were symmetrical in \nnature with no shifts away from either lower extremity \nindicating any injury or pain process.  He performed carrying \nof weight after completion of the lifting with no limp or any \nindication of knee pain or issues.   \nMr. Powers did not complete any crouching tasks and in fact \nminimally squatted when asked to attempt a crouch position.  \nHe reported bilateral knee pain and fatigue with that single \nattempt and did this without favoring either knee.  He did not \nreport injury nor was there any indication of any change in his \ncondition following this single trial as he then completed \nseveral hours of additional testing with no change in his gait or \nspeed of movement when walking or performing general \nmobility tasks such as standing for prolonged periods.   \nMr. Powers walking was re-assessed at the conclusion of the \nevaluation and his pace and gait patterns remained \ncompletely normal.  He did not have a limp present and \nactually walked at an improved pace as compared to that \nnoted at the onset of the evaluation. \nAt no time during or immediately after the FCE did Mr. Powers \nreports (sic) any injury to his left knee.... \nIn conclusion, there is absolutely no indication of injury during \nthis FCE regardless of Mr. Powers complaints.   \n \n\nPOWERS – H103797, H103798, H201158  8\n  \n \n \n The claimant signed a Form AR-N, Employee’s Notice Of Injury, on \nFebruary 4, 2022.  The claimant reported on the Accident Information \nsection of the Form AR-N that the date of accident was January 18, 2022 \nand that he notified the employer on January 19, 2022.  The claimant wrote, \n“Left knee was damaged during functional test required by workmans \ncomp.”  The claimant also wrote, “Was not told the weight that I picked \nup/they would not tell me the weight.  They refused to tell me the weight \npast my weight limit.”  It was also contended on the Form AR-N, “The \nemployee was at a testing site for workers comp. for a back injury.  He was \nbeing tested to see if he was ready to go back to work.  During the testing \nhe was told to pick up an unknown amount of weight.  He felt a pop to his \nleft knee when trying to pick up the weights.”   \n A claims specialist informed the claimant on February 7, 2022, “After \ncompleting my investigation into the claim you filed for an injury on \n01/18/2022, it appears your claim does not meet the criteria for \ncompensability.  Therefore, I must respectfully deny your claim for workers’ \ncompensation benefits.”   \n The claimant filed a Form AR-C, Claim For Compensation, on \nFebruary 16, 2022.  The Accident Information section of the Form AR-C \nindicated that the Date of Accident was January 18, 2022.  The claimant \n\nPOWERS – H103797, H103798, H201158  9\n  \n \n \nwrote, “I injured my left knee as a compensable consequence of my \ncompensable back injuries of September 2019 and November of 2020.”   \nDr. Christopher P. Dougherty treated the claimant for left knee pain \non March 16, 2022 and reported “Complete tear, knee, anterior cruciate \nligament.”  Dr. Dougherty noted that the date of onset was 01/2022, \n“Context:  Return to work ability test.”  Dr. Dougherty assessed, “His exam \nis consistent with a tear of the left ACL.  He will need [an] MRI of the left \nknee for further assessment.”   \n An MRI of the claimant’s left knee was taken on March 23, 2022 with \nthe following impression: \n1.  Minimal heterogeneity of the ACL suggestive of a very mild \nsprain.  ACL is intact.   \n2.  Mild subcutaneous swelling along the anterior aspect of \nthe knee.   \n \nThe claimant followed up with Dr. Dougherty on March 30, 2022:  \n“His MRI of the left knee was reviewed and discussed today.  It shows a \nmild ACL sprain.  We will treat this conservatively at this time.  He will get \nstarted in physical therapy.  He will return in 2 months for recheck.”  \nDr. Dougherty referred the claimant to Trinity Rehab on March 30, \n2022.    \nA pre-hearing order was filed on April 21, 2022.  According to the \ntext of the pre-hearing order, the claimant contended that he was “entitled \n\nPOWERS – H103797, H103798, H201158  10\n  \n \n \nto medical benefits for his left knee, injured as a result of his compensable \nback injuries.  The claimant reserves all other issues.” \n The parties stipulated that the respondents “have controverted the \nclaim in regarding claimant’s left knee.”  The respondents contended, “The \nclaimant reported having an injury to his low back on August 29, 2019 \nwhich has been accepted as compensable.  The respondent has provided \nthe claimant with medical treatment reasonable and necessary for the \ncompensable injury, including treatment with Dr. Mark Miedema who \ntreated the claimant conservatively with injection, physical therapy, and an \nMRI.  No surgery was recommended by Dr. Miedema, only Gabapentin and \nMedrol has been prescribed, and no work restrictions were given by Dr. \nMiedema.  In April 2021, the claimant reported having had an injury to his \nlow back in November 2020.  The respondent accepted this as a medical \nonly claim, and the claimant continued to be provided treatment for his low \nback for his August 29, 2019 injury.  The claimant had his onetime Change \nof Physician to Dr. Blankenship, who saw the claimant on July 26, 2021 and \nadditional treatment with Dr. Blankenship, including a second MRI study \nwas provided by respondent.  Dr. Blankenship offered the claimant lumbar \ninterbody arthrodesis at L4-5 and L5-S1, but the claimant declined surgery.  \nDr. Blankenship then ordered a Functional Capacity Evaluation.  At the \nJanuary 18, 2022 FCE, the claimant performed unreliably with 26 out of 54 \n\nPOWERS – H103797, H103798, H201158  11\n  \n \n \nconsistency measures, after which Dr. Blankenship wrote in his January 31, \n2022 letter that he would not operate on this claimant because of the \nclaimant’s ‘inappropriate illness behavior’ Dr. Blankenship discharged the \nclaimant form (sic) his clinic and released the claimant at maximum medical \nimprovement.  After this FCE appointment, at which the claimant tested \nunreliably, the claimant alleged to have sustained an injury to his left knee \nduring the FCE.  Respondent contends that the claimant did not sustain a \ncompensable injury to his left knee at the FCE or as a compensable \nconsequence of a compensable injury.  The claimant was not taken off work \nby his physicians, and Dr. Blankenship released the claimant at MMI on \nJanuary 31, 2022 at which time Dr. Blankenship assigned the claimant a \n6% rating to the body as a whole.  The claimant returned to work and \nrespondent has accepted this rating and is paying permanent partial \ndisability benefits to the claimant.  The respondents reserve the right to \nraise additional contentions, or to modify those stated herein, pending \ncompletion of discovery.”   \n The parties agreed to litigate the following issue:  “1.  Whether \nclaimant is entitled to medical benefits regarding to his left knee.”  \n The claimant followed up with Dr. Dougherty on June 1, 2022:  “He \nwas seen in the office today as a follow up for continued left knee pain.  He \nhas been working on a home exercise program with only slight \n\nPOWERS – H103797, H103798, H201158  12\n  \n \n \nimprovement.  He will continue with this and we will see him back as \nsymptoms warrant and he gets everything worked out with work.”  Dr. \nDougherty assessed “1.  Sprain of anterior cruciate ligament of \nknee....Patient will return to the office as needed.”   \n After a hearing, an administrative law judge filed an opinion on \nAugust 18, 2022.  The administrative law judge found that the claimant \nproved he was entitled to additional medical treatment “for his left knee \ninjury.”  The respondents appeal to the Full Commission. \nII.  ADJUDICATION \n If an injury is compensable, then every natural consequence of that \ninjury is also compensable.  Hubley v. Best Western Governor’s Inn, 52 Ark. \nApp. 226, 916 S.W.2d 143 (1996).  The basic test is whether there is a \ncausal connection between the two episodes.  Jeter v. B.R. McGinty \nMechanical, 62 Ark. App. 53, 968 S.W.2d 645 (1998).  The burden is on the \nemployee to establish the necessary causal connection.  Nichols v. Omaha \nSch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148.  Whether there is a causal \nconnection is a question of fact for the Commission.  Jeter, supra. \n An administrative law judge found in the present matter, “2.  \nClaimant has met his burden of proof by a preponderance of the evidence \nthat he is entitled to additional medical treatment from Dr. Christopher \nDougherty for his left knee injury.”  It is the duty of the Full Commission to \n\nPOWERS – H103797, H103798, H201158  13\n  \n \n \nenter findings in accordance with the preponderance of the evidence and \nnot on whether there is substantial evidence to support an administrative \nlaw judge’s findings.  Roberts v. Leo Levi Hospital, 8 Ark. App. 184, 649 \nS.W.2d 402 (1983).  The Full Commission enters its own findings in \naccordance with the preponderance of the evidence.  Tyson Foods, Inc. v. \nWatkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990). \n In the present matter, the Full Commission finds that the claimant \nsustained a compensable injury to his left knee as a natural consequence of \nthe claimant’s compensable back injury.  The claimant has been employed \nas a Master Plumber for the respondents, University of Arkansas, since \n2005.  The claimant sustained a work-related back injury on August 29, \n2019, and the respondents accepted the injury as compensable.  The \nclaimant apparently sustained another work-related back injury in \nNovember 2020 which was also accepted as compensable by the \nrespondents.  The claimant was treated conservatively for his compensable \nback injuries.  The claimant received a Change of Physician to Dr. \nBlankenship on July 20, 2021.  Dr. Blankenship recommended surgery, but \nthe claimant declined the surgical method proposed by Dr. Blankenship. \n The claimant participated in a Functional Capacity Evaluation on \nJanuary 18, 2022.  Casey Garretson and Charles Davidson with Functional \nTesting Centers, Inc. concluded that the claimant gave an “invalid” and \n\nPOWERS – H103797, H103798, H201158  14\n  \n \n \n“inconsistent” effort.  The claimant testified that he injured his left knee while \nattempting to lift a heavy weight during the Functional Capacity Evaluation.  \nThe claimant testified that the evaluators “kind of ignored” him and \ncontinued with the evaluation.  The claimant testified that, after completing \nthe Functional Capacity Evaluation, he returned home and placed “an ice \nbag of peas” on his knee. \n The Commission is not required to believe the testimony of the \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony deemed worthy of belief.  Holloway \nv. Ray White Lumber Co., 337 Ark. 524, 990 S.W.2d 526 (1999).  The Full \nCommission finds in the present matter that the claimant was a credible \nwitness.  First, the documentary evidence of record corroborated the \nclaimant’s testimony.  The record indicates that the claimant sent a text \nmessage to one of the functional capacity evaluators the day after the \nFunctional Capacity Evaluation, January 19, 2022, and informed him, “My \nleft knee is injured from the test yesterday.”  The evaluator replied through a \ntext, “You need to speak to your adjuster and Dr. Blankenship.”  The \nclaimant also sent a text message to an individual named \"Debbie” on \nJanuary 20, 2022 and informed her, “This is Robert Powers my left knee got \ninjured from the test I need to see a doctor.”  The claimant received a reply, \n“I will forward this to adjuster regarding approval.”   \n\nPOWERS – H103797, H103798, H201158  15\n  \n \n \n Additionally, the medical providers corroborated the claimant’s \ntestimony.  A CNA noted on January 27, 2022, “Pt. reports injuring his left \nknee during his workmen’s compensation evaluation 1/18/22.”  The CNA \ndiagnosed “Left knee injury.”  Dr. Deere reported on January 28, 2022, “Has \na workers comp back claim and was doing a functional study on 1/18, he \nwas asked to lift a wt from the floor and injured his left knee.  States that he \nfelt a pop and was in a chair for 2 days with ice on it afterwards.”  The \nclaimant was treated conservatively by Dr. Deere and Dr. Dougherty.  An \nMRI of the claimant’s left knee on March 23, 2022 showed “a very mild \nsprain” and “mild subcutaneous swelling along the anterior aspect of the \nknee.”  Dr. Dougherty confirmed on March 30, 2022 that MRI “shows a mild \nACL sprain.”  Dr. Dougherty referred the claimant for rehabilitation.   \n The Full Commission finds that the claimant was a credible witness, \nand that the evidence of record corroborated the claimant’s testimony.  We \nfind in the present matter that the claimant’s testimony was entitled to more \nevidentiary weight that the reports of Casey Garretson and Charles \nDavidson.  Based on the claimant’s credibility and the corroborating \nevidence of record, the Full Commission finds that the claimant injured his \nleft knee during the January 18, 2022 Functional Capacity Evaluation. \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant sustained a compensable left knee injury as a natural \n\nPOWERS – H103797, H103798, H201158  16\n  \n \n \nconsequence of his compensable back injury.  The claimant proved that the \nmedical treatment of record provided in connection with his compensable \nleft knee injury, including the treatment provided and recommended by Dr. \nDougherty, was reasonably necessary in accordance with Ark. Code Ann. \n§11-9-508(a)(Repl. 2012).  For prevailing on appeal to the Full Commission, \nthe claimant’s attorney is entitled to a fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s determination that the \nclaimant sustained a compensable left knee injury as a natural \nconsequence of his compensable back injury and that the related treatment \nprovided for his left knee, including the treatment provided and \nrecommended by Dr. Dougherty was reasonable and necessary. \n\nPOWERS – H103797, H103798, H201158  17\n  \n \n \nThe claimant sustained compensable back injuries in August 2019 \nand November 2020, which were accepted by the Respondents.  The \nclaimant alleges he sustained an injury to his left knee during a functional \ncapacity exam (FCE) on January 18, 2022.  The facts presented do not \nsupport the claimant’s contentions.  On his FCE intake paperwork, the \nclaimant “had already indicated before any testing was performed that he \nhad bilateral leg and knee pain.”  (Resp. Ex.2, P. 33).  During the intake \ninterview, the claimant reported that he had additional pain in both knees. \nId.  “He also indicated prior to testing that he had moderate difficulty with \nsquatting, kneeling and climbing stairs that he stated was due to bilateral \nknee pain.” Id.  The claimant’s efforts during the FCE were inconsistent. \n(Resp. Ex. 2, P. 14).  This inconsistency resulted in “self-limiting behavior \nand sub-maximal effort” with only 26 of 54 consistency measures falling \nwithin the expected limits. Id.  The claimant’s conduct and self-reported pain \nare “indicative of symptom magnification.”  (Resp. Ex. 2, P. 15).  The FCE \nevaluator reported that the claimant “did not report ‘popping’ of either knee \nand there was no audible crepitation or popping noted at any time during \nthis evaluation.”  (Resp. Ex. 2, P. 33).  The claimant performed normally \nthroughout the FCE, and “it was further documented that his lifts were \nsymmetrical in nature with no shifts away from either lower extremity \nindicating any injury or pain process.  He performed carrying of weight after \n\nPOWERS – H103797, H103798, H201158  18\n  \n \n \ncompletion of the lifting with no limp or any indication of knee pain or \nissues.” Id.  The claimant did not complete any crouching tasks during the \nFCE and complained of bilateral knee pain during the single attempt at \nsquatting. Id.  He did not report  any injury and there was no indication of \nany change in his condition.  (Resp. Ex. 2, P. 34).  The claimant went on to \ncomplete “several hours of additional testing with no change in his gait or \nspeed of movement.” Id.  Ultimately the claimant’s “walking was re-\nassessed at the conclusion of the evaluation and his pace and gait patterns \nremained completely normal.  He did not have a limp present and \nactually walked at an improved pace as compared to that noted at the \nonset of the evaluation. Id.  (emphasis in original).  The claimant did not \nreport any injury to his left knee during or immediately after the FCE and \ndenied any injury when asked about any new areas of pain Id.  Unreliable \neffort on a functional capacity exam is a relevant factor in determining the \nweight of a claimant’s testimony and the Commission is within its rights to \nafford greater credibility to the weight of the medical evidence when a \nclaimant’s testimony is unreliable.  Willis v. Ark. Dep't of Corr., 2021 Ark. \nApp. 50, 616 S.W.3d 679 (2021), citing O'Guinn v. Little River Mem'l Hosp., \n2013 Ark. App. 593, 430 S.W.3d 150 (2013). \nAfter the claimant reported his left knee injury, the respondent carrier \nsent the claimant to Pat Walker clinic for treatment, but there were no \n\nPOWERS – H103797, H103798, H201158  19\n  \n \n \nobjective indications of injury at that time.  (Resp. Ex. 1, P. 55-57).  Dr. \nDeborah Deere’s report from that visit reflects “no swelling or effusion, no \npain or crepitus with patellar compression, full [range of motion], no joint \nline tenderness.”  (Resp. Ex. 1, P. 56).  \nWhen the claimant later saw Dr. Christopher Dougherty of his own \nvolition, there was no indication of an ACL tear on an MRI and there was \nonly evidence of a very mild sprain.  (Resp. Ex. 1, Pp. 66, 69).  In fact, the \nACL was intact.  The claimant has not missed any work due to this alleged \ninjury and treated with home exercises.  He is still able to drive, walk, and \ntravel.  (Trans. Pp. 31-32).  The sole source of information regarding if and \nwhen this injury took place is the claimant himself.  Arkansas Code \nAnnotated section 11-9-102(4)(D) requires that a compensable injury must \nbe established by medical evidence supported by objective findings. \nWithout the support of objective findings, a diagnosis of a sprain is \ninsufficient to establish compensability. Smith v. Howard Cnty. Children's \nCtr., 2005 Ark. App. LEXIS 423 (2005). \nDespite the conflicting testimony and evidence, the ALJ gave great \nweight to the claimant’s testimony, appearing to wholly disregard reports \nfrom the FCE examiner, stating that he “found him to be a credible witness . \n. . The way he described how he injured his left knee is plausible.”  \n(Opinion, P. 10).  The ALJ describes that claimant as “cautious about doing \n\nPOWERS – H103797, H103798, H201158  20\n  \n \n \nanything to his injured back during the exam,” and finds “it hard to believe \nthat he would not have mentioned an injured knee prior to the evaluation.” \nId.  However, what the ALJ sees as caution is considered “inappropriate \nillness behavior” by Dr. James Blankenship.  (Resp. Ex. 1., P. 58). \nIt is well settled that while a case my ultimately “boil down” to the \ncredibility of a claimant, a party’s testimony is never considered \nuncontroverted.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d \n457 (1994), citing Lambert v. Gerber Products Co., 14 Ark. App. 88, 684 \nS.W.2d 842 (1985). “[T]he Commission is not required to believe the \ntestimony of the claimant or other witnesses but may accept and translate \ninto findings of fact only those portions of the testimony it deems worthy of \nbelief.” Wright v. Conway Freight, 2014 Ark. App. 451, 441 S.W.3d 45 \n(2014), citing Cottage Café, Inc. v. Collette, 94 Ark. App. 72, 226 S.W.3d 27 \n(2006).  \nBecause of the claimant’s unreliable performance at the FCE, the \nCommission is entitled to review the basis for a doctor’s opinion in deciding \nthe weight and credibility of the opinion and medical exhibits.  Maverick \nTransportation v. Buzzard, 69 Ark. App. 128, 10 S.W.3d 467 (2000).  A \nphysician’s special qualifications and whether a physician rendering an \nopinion ever actually examined the claimant are factors in considering the \n\nPOWERS – H103797, H103798, H201158  21\n  \n \n \nweight and credibility of an opinion.  Barksdale Lumber Co., et al v. Lois \nMcAnally, 262 Ark. 279, 557 S.W.2d 868 (1977). \nI do not find the claimant’s testimony credible.  The fact the claimant \nwas inconsistent with his efforts at the FCE shows he is exaggerating his \nclaim.  Based on his refusal to put forth reliable and good faith effort during \nhis FCE so that his physical condition could accurately be assessed, I \nwould give very little, if any, weight to his testimony.  The FCE reports made \na part of the record clearly show the claimant was not forthcoming about the \nextent of his injuries, was not credible in testing, and did not sustain a \ncompensable injury to his left knee on June 18, 2022 during his functional \ncapacity exam. \nFor the reasons stated above, I respectfully dissent. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":32666,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NOS. H103797, H103798 & H201158 ROBERT POWERS, EMPLOYEE CLAIMANT UNIVERSITY OF ARKANSAS FAYETTEVILLE, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED APRIL 4, 2023","outcome":"granted","outcomeKeywords":["granted:1","denied:1"],"injuryKeywords":["knee","back","strain","lumbar","hip","herniated","sprain"],"fetchedAt":"2026-05-19T22:29:46.504Z"},{"id":"alj-H109960-2023-04-04","awccNumber":"H109960","decisionDate":"2023-04-04","decisionYear":2023,"opinionType":"alj","claimantName":"Susan House","employerName":"Ar. Heart Hospital, LLC","title":"HOUSE VS. AR. HEART HOSPITAL, LLC AWCC# H109960 APRIL 4, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HOUSE_SUSAN_H109960_20230404.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOUSE_SUSAN_H109960_20230404.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H109960 \n \n \nSUSAN D. HOUSE, EMPLOYEE CLAIMANT \n \nAR. HEART HOSPITAL, LLC, \n Employer RESPONDENT \n \nBRIDGEFIELD EMPLOYERS INS. CO., \n Insurance Carrier RESPONDENT \n \nSUMMIT CONSULTING, LLC, \n Third Party Administrator RESPONDENT \n \nOPINION FILED APRIL 4, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  March  22,  2023, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant  is  represented  by  Ms.  Laura  Beth  York,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nRespondent is represented by Mr. Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This matter comes before the Commission on a  Motion to Dismiss filed by \nRespondent  on  January  20,  2023.  No  testimony  was  taken.  The  evidentiary \nrecord consists of  Respondent’s Exhibit 1 and oral argument of the Respondent. \nClaimant’s  attorney  waived  her  appearance  for  the  March  22,  2023,  hearing. \nWithout  objection,  the  Commission’s  file  on  this  claim  has  been  incorporated \nherein by reference in its entirety. \n The  record  reflects  the  following  procedural  history:    The  Claimant  has \nalleged she has sustained injuries to her back and whole body on November 11, \n2021,  during  the  course  and  scope  of  her  employment.  Respondent  denied  this \n\nHOUSE – H109960 \n \n2 \nclaim  in  its  entirety.  Claimant  filed  an  AR-C  with  the  Commission,  through \ncounsel, on July 1, 2022, for benefits. Since then, the Claimant has not requested \na hearing and no efforts have been made to prosecute this claim.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the  motion  to \ndismiss and of the hearing thereon under AWCC R. 099.13. \n3. The   Commission   is   authorized   to   dismiss   claims   for   want   of \nprosecution pursuant to AWCC R. 099.13. \n4. This  claim  should  be,  and  hereby  is,  dismissed without  prejudice \npursuant to AWCC R. 099.13 due to want of prosecution. \n5. Because of  the above  finding,  Ark.  Code  Ann. § 11-9-702(d)  (Repl. \n2012) will not be addressed. \nIII.  DISCUSSION \n Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: \n \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation,  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \n\nHOUSE – H109960 \n \n3 \nof the claim within the limitation period specified in subsection (b) of \nthis section. \n \nIn addition, AWCC R. 099.13 provides in relevant part: \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \n At  the  hearing,  Respondent’s  counsel  was  present.  Claimant’s  attorney \nwaived her appearance  after  being  duly  served  with notice.  However,  Claimant’s \nattorney  did  respond  to  the  Motion  to  Dismiss  with  an  email  dated  February  10, \n2023,  where  she  wrote, “I  do  not  object  to  the  respondents  Motion  to  Dismiss \nWithout Prejudice.” Based on this response and the lack of prosecution, I find this \nclaim   should   be   dismissed   under   Rule   13.   Because   of   this   finding,   it   is \nunnecessary to address the application of § 11-9-702(d). \n That, however, leaves the question of whether the dismissal should be with \nor  without  prejudice.  The  Commission  possesses  the  authority  to  dismiss  claims \nwith  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co.,  23  Ark. App.  137,  744 \nS.W.2d  402  (1988).    This  includes  claims  dismissed  under  Rule  13.   Johnson, \nsupra.  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS 5 10, the Commission \nwrote:    “In  numerous  past  decisions,  this  Commission  and  the  Appellate  Courts \nhave    expressed    a    preference    for    dismissals    without    prejudice.”    (citing \nProfessional  Adjustment  Bureau  v.  Strong,  75  Ark.  249, 629  S.W.2d  284  (1982); \nHutchinson  v.  North  Arkansas  Foundry,  Claim  No.  D902143  (Full  Commission \n\nHOUSE – H109960 \n \n4 \nOpinion  filed  October  23,  1991).  Considering  this  preference,  I  find  this  claim \nshould be dismissed without prejudice. \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5124,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H109960 SUSAN D. HOUSE, EMPLOYEE CLAIMANT AR. HEART HOSPITAL, LLC, Employer RESPONDENT BRIDGEFIELD EMPLOYERS INS. CO., Insurance Carrier RESPONDENT SUMMIT CONSULTING, LLC, Third Party Administrator RESPONDENT OPINION FILED APRIL 4, 2023 Hearing before Adminis...","outcome":"dismissed","outcomeKeywords":["dismissed:12"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:08:12.202Z"},{"id":"alj-H009640-2023-04-04","awccNumber":"H009640","decisionDate":"2023-04-04","decisionYear":2023,"opinionType":"alj","claimantName":"James Washington","employerName":"Evergreen Packaging","title":"WASHINGTON VS. EVERGREEN PACKAGING AWCC# H009640 APRIL 4, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WASHINGTON_JAMES_H009640_20230404.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WASHINGTON_JAMES_H009640_20230404.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC FILE No H009640 \n \nJAMES WASHINGTON, EMPLOYEE       CLAIMANT \n \nEVERGREEN PACKAGING, EMPLOYER          RESPONDENT \n \nACE AMERICAN INSURANCE Co., CARRIER         RESPONDENT \n \nESIS, Inc., TPA              RESPONDENT \n \n \n \nOPINION FILED APRIL 4, 2023 \n \n \n \nOn hearing before Arkansas Workers’ Compensation Commission (AWCC) Administrative \nLaw Judge JayO. Howe, January 12, 2023, Pine Bluff, Arkansas. \n \nMr. Steven McNeely appearing for the claimant. \n \nMr. William C. Frye appearing for the respondents. \n \nI.  STATEMENT OF THE CASE \n \nThe above-captioned case was heard on January 12, 2023, in Pine Bluff, Arkansas, after \nthe parties participated in a pre-hearing telephone conference on October 25, 2022. The \nsubsequent Pre-hearing Order, admitted to the record without objection as Commission’s \nExhibit No 1, was entered on October 26, 2022. The Order stated the following ISSUES TO \nBE LITIGATED: \n1.  Whether the claimant is entitled to additional Total Temporary Disability (TTD) \nbenefits, from the time of full duty release without restrictions\n1\n through November 3, 2021. \n \n1\n The claimant’s pre-hearing questionnaire response noted that the claimant was released \nto full duty on May 24, 2021, and that he should be entitled to additional TTD benefits from \nthat day through November of the same year. The Pre-hearing Order reflected the same. At \nthe hearing, however, the medical evidence presented [Claimant’s Exhibit No 1 at 163-166 \nand Respondent’s Exhibit No 2 at 1-4] shows that the office visit that resulted in the \nclaimant’s release to full duty was on June 21, 2021. The hearing testimony squares with \n\nWASHINGTON- H009640  \n2 \n \n2.  When did the claimant reach the end of his healing period? \n3.  Whether the claimant is entitled to an impairment rating of five percent (5%) to the \nbody as a whole and Permanent Partial Disability (PPD) benefits pursuant to that rating. \n4. Whether the claimant is entitled to wage loss benefits. \n5.  Whether the claimant is entitled to a controverted attorney’s fee. \n6.  All other issues are reserved. \nThe parties’ CONTENTIONS, as set forth in their pre-hearing questionnaire responses, \nwere incorporate by reference into the Pre-hearing Order. The claimant contends: \n1.  That he suffered a compensable back injury on October 31, 2020, while turning a \nlarge valve. \n2. That the claim was accepted and medical and treatment and TTD were provided \nuntil May 24, 2021,\n2\n when Trent Tappan, PA-C, released him to full duty without \nrestrictions following an office visit and report of an incomplete Functional Capacity \nEvaluation (FCE). \n3.  That he sought treatment on his own from the VA, where he was seen until October \n2021. \n4.  That his last noted visit at the VA is the correct MMI date and that he is entitled to a \n5% impairment rating under the applicable AMA guides for a nonoperative soft tissue \nlesion under Table 75, § II.B. \n \nthe June 21 date also: “Q: ... Trent Tappan. He was with Dr. Bruffett’s office... released you \nfrom care at that point [on June 21], is that correct? Work. Comp. A: Yes. Q: All right. Then \nyou got treatment on your own with the Veteran’s Administration? A: Correct. Q: All right. \nSo from the FCE until the end of October... .” The May 24 date is apparently a scrivener’s \nerror, confusing the claimant’s month and date of birth, appearing at the top of the visit \nnotes (May 24), with the actual date of the visit resulting in his release from care.  \n2\n See FN1. \n\nWASHINGTON- H009640  \n3 \n \n5.  That when he returned to work, he had to take a lighter duty job, reducing his hourly \nrate from $32.00/hour to $28.00/hour, thus entitled him to wage loss. \n6. That the denial of these benefits entitles his attorney to a fee under ACA § 11-9-715.    \n7. That all other issues, including additional medical treatment, are reserved. \nThe respondents contend: \n1.  That the claimant has a history of prior low back problems and underwent a surgical \nlaminectomy at L5-S1.  \n2.  That he sustained a compensable lower back injury and was treated by Drs. Wilkins, \nSaer, and Bruffett. \n3.  That he underwent an FCE that reported an unreliable effort. \n4.  That he was released by Dr. Bruffett’s office to return to work with no restrictions \nand no impairment. \n5.  That he returned to full duty work and that he continues to work. \n6.  That they are unsure of his requested benefits. \n7.  That claimant’s presentation to the VA was unauthorized and that he received a \nForm N. \nThat Order also set forth the following STIPULATIONS: \n1.  The AWCC has jurisdiction over this claim. \n2.  An employee/employer/carrier relationship existed on October 31, 2020, when the \nclaimant sustained a compensable injury to his lower back. \n3.  The respondents accepted that injury as compensable and paid medical and \nindemnity benefits. \n4.  The claimant’s average weekly wage entitles him to the maximum compensation \nrates. \n\nWASHINGTON- H009640  \n4 \n \nIn addition to the Commission’s Exhibit, previously mentioned, three more exhibits \nwere entered into this record. Claimant’s Exhibit No 1 consisted of a four-page index of \nmedical records and 208 subsequent pages. Respondents’ Exhibit No 1 consisted of one (1) \nindex page and seven (7) pages of non-medical records. Finally, Respondents’ Exhibit No 2 \nconsisted of one (1) index page and four (4) pages of medical records, all of which were from \nthe June 21, 2021 appointment with PA-C Trent Tappan, a provider in Dr. Bruffett’s office. \nTwo witnesses provided sworn testimony—the claimant spoke on his own behalf and the \nrespondents called Ms. Tommie Arrington, an Evergreen employee and union official \nfamiliar with Mr. Washington’s eventual job reassignment. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nHaving reviewed the record as a whole and having heard testimony from the witnesses, \nobserving their demeanor, I make the following findings of fact and conclusions of law \nunder ACA § 11-9-704: \n1. The AWCC has jurisdiction over this claim. \n2. The previously noted stipulations are accepted as fact. \n3. The claimant failed to prove by a preponderance of evidence that he is entitled to \nadditional TTD benefits. \n4. The claimant failed to prove by a preponderance of evidence that the appropriate \ndate of MMI with regard to his workplace injury was not consistent with the date of his \nJune 21, 2021 MMI placement and release to full duty without restrictions. \n5. The claimant failed to prove by a preponderance of the evidence that he is entitled to \nan impairment rating associated with his workplace injury. \n6. The claimant failed to prove that he is entitled to wage loss. \n7. Consistent with the above, the claimant’s attorney is not entitled to a fee. \n \n\nWASHINGTON- H009640  \n5 \n \nIII.  BACKGROUND and MEDICAL EVIDENCE \n On October 31, 2020, the claimant injured his back while working as a waste water \noperator at the respondent/employer’s paper mill and food packaging production facilities. \nHe testified that he worked in that role from around 2009 to the date of injury. Early in the \nmorning of his shift, the claimant was monitoring a number of pumping stations when an \nalarm notified him of a problem at one of the stations. Believing that the pump had lost its \nprime, Mr. Washington began a back-washing procedure to remedy that problem that \nrequired manually opening or closing a series of large valves. He stated that the valve \nhandwheels were about 20 inches across and two and one-half to three feet off the ground. \nWhile working one of the handwheels, the claimant testified, “all of the sudden that’s when \nI heard—I felt this pop in my back and I knew right then, I was like, ‘oh.’” He completed a \ncompany injury report around 4:25 AM, stating that he suddenly felt a sharp, pinching pain \nfrom his back to his calf when turning the valve around 2:15 AM. He rated the pain at 8 out \nof 10 at the time of the injury and 6 out of 10 at the time of the report. According to the \nclaimant’s testimony, he then remained off work for 367 days. \nA. Treatment Not with the VA \n Mr. Washington presented to the Baptist Health emergency department (ED) in \nLittle Rock just before 2:00 PM on November 2, 2020, complaining of low back pain \nradiating down his right leg. The ED record notes a history of lumbar surgery for bone spur \nremoval in 2017 and bulging discs. An Xray was ordered and a Toradol injection \nadministered. He was diagnosed with acute right-sided lower back pain with right-sided \nsciatica. No acute findings were noted on the Xray report, and he was discharged with \nprescriptions for cyclobenzaprine and naproxen. [Cl. Ex. No 1 at 8-16.] \n Prior to the work injury, the medical records reflect two visits to Jefferson Regional \nMedical Center’s Family Health Associates clinic in White Hall, Arkansas. The first was on \n\nWASHINGTON- H009640  \n6 \n \nOctober 28, 2019, to establish care. A history of arthritis and back surgery, joint surgery \nwas noted, along with a family history of arthritis. The second was on May 27, 2020, when \nhe complained of pain to his right side and hip rating 8 out of 10 after doing some yard \nwork. Home medications of cyclobenzaprine and ibuprofen were noted, and he noted some \nrelief from the same. [Cl. Ex. No 1 at 1-5.] \n Two days after his November 2, 2020 ED visit, the claimant presented to the Little \nRock Family Practice Clinic (LRFP), again complaining of back pain and pain down his \nright side. He was seen by Dr. John Jayroe, who administered intramuscular (IM) steroid \ninjections of Celestone Soluspan and Kenalog. The impression from that day’s radiology \nreport (from Radiology Associates, PA (“RAPA”)) was that of a negative exam, though Dr. \nJayroe assessed minimal degenerative changes, “retrolithesis of L5 on S1 with loss of disc \nheight,” and a “narrowing of the foramina at L4-L5.” His final diagnosis listed acute right-\nsided low back pain with right-sided sciatica. Physical therapy was recommended, along \nwith follow up for possible additional imaging if symptoms did not improve. [Cl. Ex. No 1 at \n17-20.] \n The claimant presented again to LRFP on November 16, 2020, with mostly the same \ncomplaints, but additionally complaining about intermittent muscle spasms in his gluteus. \nDr. Jayroe assessed acute back pain with radiculopathy, discussed physical therapy, and \nagain noted a possible MRI in the future. [Cl. Ex. No 1 at 24-26.] \n Thereafter, the claimant presented to Physical Therapy Plus in Pine Bluff, under \nthe care of Stuart Jones, PT, DPT. His rehab potential was listed as “good” at his initial \nvisit on November 30, 2020. The records reflect at least 11 subsequent physical therapy \nvisits over the month, with the last appearing to take place on December 28, 2020. Mr. \nWashington reported no change in his symptoms at that last visit. [Cl. Ex. No 1 at 27-46.] \n\nWASHINGTON- H009640  \n7 \n \n On December 8, 2020, during the course of his physical therapy visits, the claimant \nunderwent an MRI. RAPA’s report showed the following findings: \nThe signal intensity of the bone marrow is normal. Disc desiccation is present \nat all levels, particularly L4-5. The tip of the conus terminates at L1-2, which \nis within normal limits. \n \nL5-S1 displays no disc herniation or protrusion. Mild facet hypertrophy is \npresent. \n \nL4-5 with a mild broad-based posterior disc bulge. This mildly indents the \nanterior thecal sac. The AP diameter of the canal is 9mm. Moderate \nhypertrophy is present. \n \nL3-4 displays a mild broad-based posterior bulge. There is a left-sided \ncomponent that has an annular tear. Mild neural foraminal narrowing is \npresent. The AP diameter of the canal is 8 mm. \n \nL2-3 displays no disc herniation or protrusion. The neural foamen are patent \nbilaterally. The AP diameter of the canal is 9mm. \n \n[Cl. Ex. No 1 at 47.]  \n On December 30, 2020, two days after his last physical therapy visit, Mr. \nWashington presented to OrthoArkansas, where he was seen by Dr. Edward Saer. He \nreported his pain at 10 out of 10. The record reflects that he reported physical therapy \nstarting on November 15, 2020 (although he began therapy on November 30, 2020), and \nthat he’d previously received prescriptions for naproxen and Flexeril (for whatever reason, \nhe appears to have failed to report the three injections he’d received in the preceding \nweeks). His history of arthritis and lower back surgery were noted. Dr. Saer reviewed a new \nXray and the December 8, 2020 RAPA MRI. He assessed a probable lumbar strain or \nsprain, but did “not see 1 [one] focal finding that would explain all of his symptoms.” Mr. \nWashington was prescribed a steroid dosepak, Meloxicam, and Tramadol. Continued \nphysical therapy was also recommended. [Cl. Ex. No 1 at 48-53.] \n The claimant was seen again by Dr. Jayroe at LRFP the next day via telemedicine. \nThe imaging results were discussed, and gabapentin was prescribed. The progress note \n\nWASHINGTON- H009640  \n8 \n \nstated that Dr. Jayroe offered a referral for an interventional pain opinion and that Mr. \nWashington was scheduled with a new physical therapy provider per Dr. Saer’s referral. \n[Cl. Ex. No 1 at 55-56]. \n Mr. Washington then presented to Southeast Arkansas PT on January 6, 2021, with \nseven additional visits\n3\n over the next two weeks. His history noted arthritis and prior back \nsurgery, while the diagnosis was consistently listed as lumbago with sciatica, right side, \nmuscle wasting and atrophy. At his January 19, 2021 visit, the provider assessed some \nprogress and that the “[i]ssue is just pain down R[ight]L[ower]E[xtremity].” Ten more visits \nwere noted as authorized at that time, and he was to continue the then-current plan of care. \n[Cl. Ex. No 1 57-81]. \n The following day, on January 20, 2021, the claimant saw Dr. Saer again, who \nassessed no need for any surgery. “I suspect he has had a strain or sprain. He seems to be \nhaving a lot more pain with this [than] I would expect, however.” His pain was reported as \n7 out of 10. Continued physical therapy was recommended, along with a follow up visit in \nthree weeks. [C. Ex. No 1 at 83-86.] \n The claimant presented again to LRFP the next day. Minor symptom improvement \nwas noted. His then-current medications, relevant to this claim, were listed as Gabapentin \n(100 mg, 3x daily), Meloxicam (15 mg, 1x daily), and Tramadol (100 mg, Extended Release, \n1x nightly, PRN for pain). Dr. Jayroe assessed acute back pain with radiculopathy, unclear \netiology. In the same note, he charted, “[w]e will try taking 300 mg of Gabapentin at \nnighttime; have given him permission to titrate up to 500 mg daily at bedtime if he \ntolerates it.” The claimant was also to continue with Meloxicam and Tramadol. [Cl. Ex. No 1 \nat 87-88.] \n \n3\n The record reflects physical therapy visits on January 6, 7, 8, 11, 12, 14, 18, and 19, 2021. \n\nWASHINGTON- H009640  \n9 \n \n Then, on Monday, January 25, 2021, the claimant presented again to the Baptist \nHealth ED in Little Rock, complaining of worsening low back pain. He stated that he \naggravated the pain after doing “a lot more activity” than usual at his physical therapy \nappointment on the preceding Friday (which would have been January 22, 2021). The \nrecord before me, however, includes no physical therapy note corresponding with that day. \nThe ED notes reflect that he was given a Toradol injection and dispensed 15 tablets of \ncyclobenzaprine, 5 mg. Otherwise, the notes reflect “[n]o results found for this visit on \n01/25/21.” [Cl. Ex. No at 89-95.] \n Mr. Washington next presented again to Dr. Saer on January 27, 2021, complaining \nof increased pain, spasms, migraines, some nausea, some difficulty voiding urine and some \nmild constipation. His pain was reported as 7 out of 10. According to the notes, he was in a \nwheelchair, though no physician appears to have ordered the use of a wheelchair. His \nprevious MRI was reviewed, and Dr. Saer commented on “mild central stenosis with some \nelement of congenital narrowing.” The physician assessed that he was “not sure if \nsomething has changed or not in his back. I think we need to find out, and we need to \nrepeat the MRI.” An IM steroid injection and oral dosepak were given. [Cl. Ex. No at 96-\n104]. The MRI report showed “no acute fracture or aggressive marrow replacing process,” \nbut noted degenerative changes. The report concluded: \n1.  Moderate to sever spinal canal stenosis at L3-L4 secondary to \ncircumferential disc bulge and ligamentum flavum thickening. There is near \ncomplete effacement of the CSF surrounding the cauda and equina at this \nlevel. \n \n2.  Moderate facet arthropathy at L3-L4 with trace facet effusions, likely \nreactive. Mild neural foramen stenosis is also present. \n \n3.  Prior right hemilaminectomy changes at L5. Mild facet arthropathy at L5-\nS1 with mild bilateral neural foramen stenosis. Additional less pronounces \ndegenerative changes as above. \n \n[Cl. Ex. No 1 at 105.] \n\nWASHINGTON- H009640  \n10 \n \n Between February 8, 2021, and March 31, 2021, the claimant attended several more \nphysical therapy visits. [Cl. Ex. No 1 at 106-132.] On February 10, 2021, Dr. Saer ordered \nanother steroid injection. [Cl. Ex. No at 112.] Then, on April 12, 2021, he presented again to \nDr. Bruffett, whose note reflects that physical therapy had not been helpful and that the \nprevious injection by Dr. Cayme at L4-5 “was minimally of benefit.” Mr. Washington \nreported his pain as a 7 out of 10. Dr. Bruffett’s physical exam noted “no frank neurologic \ndeficits” or “upper motor neuron signs.” The MRI findings were noted, along with the \nclaimant appearing “a little down or depressed.” He charted the following assessment/plan: \nPostlaminectomy syndrome with stenosis now at L3-4 which may be \nsymptomatic. \n \nPlan is difficult to know the exact cause of his pain. I would recommend \nanother injection... Surgery would consist of a hemilaminectomy for spinal \nstenosis. My concern about surgery is that he does not have a specific disc \nherniation... I would only know that intraoperatively... maybe another \ninjection would help us...spoke to him about his degree of job satisfaction. I \nthink he likes his job, but he is not real thrilled about he folks that he works \nwith. \n \n[Cl. Ex. No 1 at 134-138.] Another steroid injection was administered on May 13, 2021. [Cl. \nEx. No 1 at 140]. \nMr. Washington returned to Dr. Bruffett on May 26, 2021, reporting again a pain \nrating of 7 out of 10. That visit note stated: \n... He has some stenosis at L3-4 and postsurgical changes at L5-S1 but \notherwise his MRI really does not show a specific disc herniation or obvious \nobjective evidence of injury... I have told him I think he is at maximum \nmedical improvement with regards to nonoperative treatment. But I really do \nnot think surgery is going to be all that rewarding... surgery is not a good \noption...I would recommend a functional capacity evaluation. \n \n[Cl. Ex. No 1 at 141-143.] \n\nWASHINGTON- H009640  \n11 \n \n The functional capacity exam (FCE) was conducted on June 14, 2021, by Functional \nTesting Centers, Inc., at their Pine Bluff facility.\n4\n Per the report, an FCE “evaluates an \nindividual’s capacity to perform work activities related to his participation in employment \nand consists of a comprehensive battery of performance-based tests that are commonly used \nto determine ability for work.” The Reliability and Consistency of Effort portion of the \nreport begins: \nConsistency of effort testing obtained during this evaluation indicate \nsignificant observational and evidence-based inconsistencies resulting in self-\nlimiting behavior and sub-maximal effort. The results of this evaluation \nindicate that an unreliable effort was put forth, with 37 of 50 inconsistency \nmeasures within expected limits. Analysis of the data collected during this \nevaluation indicates that he did not put forth consistent effort. He also had \nnumerous signs of non-organic symptoms when he participated in a series of \ntests to identify the presence of non-physiological signs of pain. He produced \npositive results for all of these tests given. The client also failed to produce a \nsignificant cardiovascular response to physical testing that would indicate \nthat a significant degree of effort was being put forth. The client’s walking \nwas not reliable for consistent effort. His walking pace slowed dramatically \nwhen he was aware of being timed and his pace was significantly faster as he \nwalked about the facility. It is also noted that he demonstrated a maximal lift \nof 20 lbs. during bi-manual dynamic lifting yet demonstrated the ability to \nlift and then carry up to 25 lbs. with just his RUE and just his LUE. He also \nhad pain reports that did not correlate with his movement patterns. His \nfrequent pain report of level 9-10\n5\n does not correlate with the description of \nthis level of pain provided to hi[m] and he failed to exhibit outward \ncompensatory movements. \n \nAnd under Functional Limitations, the report states: \nAlthough Mr. Washington reported and/or demonstrated numerous function \nlimitations during his evaluation, he also exhibited numerous inconsistencies \nwhich invalidated his entire evaluation. Therefore, his current functional \nstatus remains unknown at this time due to his failure to produce sufficient \nobjective data to substantiate his reported and/or demonstrated limitations. \n \n \n4\n Although the record does not reflect that the use of a cane was ordered by a treating \nphysician, the claimant arrived for testing with a cane in his left hand. [Cl. Ex. No 1 at 151.] \n5\n The pain scale utilized during testing rates a pain level of 9 as “Excruciating, Unbearable, \nYou are unable to get out of bed on most days even with medication. You cry and moan \nuncontrollably.” While a pain level of 10 is described as “Worst pain imaginable; I’m \nunconscious due to pain.” \n\nWASHINGTON- H009640  \n12 \n \nThe report’s conclusion included: \nMr. Washington completed functional testing on this date with unreliable \nresults (emphasis in original).... Since the results indicate an unreliable \neffort, his actual abilities could be higher than that demonstrated \nduring this evaluation. The overall results of this evaluation do not \nrepresent a true and accurate representation of this client’s overall \nphysical capabilities (emphasis in original). \n \n[Cl. Ex. No 1 at 145-147.]  \nSeveral specific inconsistencies, noncompliance, or malingering behaviors were \nnoted throughout the report. His pace slowed significantly when he was aware of being \ntested, he took breaks after every 20 feet of walking, and refused a final repetition of a \nwalking evaluation.\n6\n None of his lumbar flexion, extension, or lateral flexion results were \nvalid, and he was observed picking an accidentally dropped item off of the floor in a manor \nnot consistent with his formally measured range of motion testing.\n7\n He exhibited \nexaggerated pain behaviors at light touches and reported muscle spasms when no visible or \npalpable signs of spasm were present.\n8\n He reported a pain level of 9-10\n9\n after lifting, \nalthough his visible pain behaviors did not correlate to the same, nor did his heart rate.\n10\n \nHe stopped a frequent lifting evaluation before completion and refused to attempt two out \nof three cycles of a second walking evaluation.\n11\n After nearly four hours of activity and \nevaluation, often reporting intense pain, his heart rate and blood pressure (85 BPM, \n140/85) were nearly identical to his pre-testing readings (84 BPM, 140/87).\n12\n Mr. \nWashington left the facility at a “significantly faster pace than that exhibited throughout \n \n6\n See Cl. Ex. No 1 at 152. \n7\n Id. \n8\n Id. at 153. \n9\n See FN 5. \n10\n Id. at 154. \n11\n Id. at 161. \n12\n Id. at 151, 161. \n\nWASHINGTON- H009640  \n13 \n \ntesting,” and when walking the approximately 70 feet out of the facility, he no longer \nneeded breaks every 20 feet or so.\n13\n  \nThe report concludes with observations on his reported post-exertional pain: \nMr. Washington reports that his post-test pain level is a “9-10,” which is the \nsame level of pain that he experiences when performing activities at home... \nDuring the exit interview after reporting a 9-10 pain he continued to sit and \nsmile and laugh with the evaluator, which does not correlate to his voiced \nsevere pain at a numerical pain level of 9-10. He made no complaints or made \nrefences to any pain or any symptoms which were not related to the condition \nhe was referred form. He also reported no new or difference [sic] areas or \nregions of pain that he wasn’t experiencing at the start of his evaluation. He \nreported that the pain he experienced today is similar to his daily pain. \n \n[Cl. Ex. No 1 at 162.] \n Following the FCE the claimant returned again to Dr. Bruffett’s office for a 9:00 AM \nappointment on June 21, 2021, where he was seen by Trent Tappan, PA-C. The notes from \nthat visit are not inconsistent with previous visits. He reported his pain at 8 out of 10. \nPrevious notes and scans were reviewed, with spinal stenosis of lumbar region and post-\nlaminectomy syndrome listed in the assessment. Regarding the FCE and Mr. Washington’s \nability to return to work, the note stated, “Mr. Washington did not have reliable results on \nhis functional capacity exam. Therefore I have no restrictions to place upon him. I am going \nto release him today without any restrictions. Placement [at] maximum medical \nimprovement. No impairment to calculate.” Tappan’s encounter note was reviewed and \nsigned at 10:14 AM. Consistent with the encounter note, his return to work slip provided, \n“[r]eturn to full duty, no restrictions.” [Cl. Ex. No 1 at 163-167.] \nB. VA Treatment \n The claimant presented to the VA on February 2, 2021, after calling in on January \n29, 2021, with a report of chronic back pain. He reported that his medication had made him \n \n13\n Id. at 162. \n\nWASHINGTON- H009640  \n14 \n \nnauseous and that it was no longer relieving symptoms. The provider noted, “advised \nveteran to follow up with specialist who ordered the medication and discuss symptoms with \nthem. Advised it is best NOT (emphasis in original) to have several providers managing the \nsame symptoms due to possible conflicting therapies or not having all the information to \ntreat effectively.” [Cl. Ex. No 1 at 167.] \nAccording to a June 8, 2021 progress note (six days prior to his FCE),\n14\n the claimant \nwas seen that day for bilateral knee pain. He stated that he “occasionally” (emphasis \nadded) experienced low back pain and that he was experiencing “generalized weakness and \npain since he has been out of his job when the COVID started (emphasis added) and believes \nhis pain has gotten worse after he started resting more.” Under the “Active Non-VA \nMedications” tab, he apparently reported none of the medications listed on his visits with \nother providers before or after his FCE. The same note included, “Lumbar Spine Exam: \nSkin is normal looking, Tenderness absent along L4-L5-S1 spinous processes and absent on \nSI joint, Paraspinal spasm absent... .” [Cl. Ex. No 1 at 169-172.] \n It appears Mr. Washington presented again to the VA’s ED June 21, 2021 (the same \nday as his release from Dr. Bruffett’s office), sometime before 11:30 AM. [See, generally, Cl. \nEx. No 1 at 173-179]. He reported his pain at 9 out of 10 [Cl. Ex. No 1 at 175] and a \n“longstanding hx of back pain and he is concerned that he should not be working due to \nsymptoms. Seen in ER today for radiculopathy, CT shows spondylosis. He has a hx of back \nsurgery. He asked me if he should be working. Advised him I had no authority to tell him \none way or the other.” [Cl. Ex. No 1 at at 179.] He received IM injections of Toradol and \nKenalog.  Imaging from that day showed the following relevant findings: \nDegenerative:  The lumbar canal appears congenitally narrow. \n \n14\n According to the pagination from the facility producing the VA records, they are not \npresented in the exhibit in an order correlating with that pagination. Some notes, therefore, \nappear incomplete in places. \n\nWASHINGTON- H009640  \n15 \n \n \nL2/L3:  Disc Bulge effaces with ventral thec sac. Facet arthropathy. Mild to \nmoderate canal stenosis. No significant foraminal stenosis. \n \nL3/L4:  Disc bulge effaces with ventral thecal sac. Facet arthropathy. \nModerate canal stenosis. Mild bilateral foraminal stenosis. \n \nL4/L5:  Disc bulge effaces the ventral thecal sac. Facet arthropathy and \nligamentum flavum thickening. Severe spinal canal stenosis. Mild bilateral \nforaminal stenosis. \n \nL5/S1:  Postsurgical change of the right lamina. Minor bulging of the \nannulus. Facet arthropathy. No significant canal stenosis. Mild bilateral \nforaminal stenosis. \n \nImpression:  No fracture or traumatic subluxation. \nCongenital lumbar canal stenosis with superimposed spondylosis resulting in \nmoderate canal stenosis L3/L4, suspected severe spinal canal stenosis L4/L5. \n \nMild to moderate canal stenosis L2/L3. \n \nVarying degrees of neural foraminal stenosis as described. \n \nPostsurgical change of the right lamina L5/S1.  \n \n[Cl. Ex. No 1 at 180-182.]   \n A telephone encounter followed a few days later. The June 24, 2021 note states: \n“... c/o years of LBP with radiation to the left leg and right hip. Hx lumbar back surgery in \n2017... Veteran does not recall initial injury that caused pain and unsure if service related.” \n[Cl. Ex. No 1 at 184 (emphasis added).]    \n The VA records noted above, as well as additional records provided by the claimant, \nrelate to various complaints about back and knee pain. \nIV.  HEARING TESTIMONY                                                                                                         \nA. Claimant on Direct Examination by Mr. McNeely \nMr. Washington testified that after graduating high school in 1986, he entered the \nArmy in December of that year. He worked as a truck driver and petroleum specialist \nbefore ending his time in service in 1989. He worked a handful of other jobs before \n\nWASHINGTON- H009640  \n16 \n \nbeginning with the respondent-employer in 2008, when he was initially hired as an off-\nmachine coder, before transferring to the Lab divisions Technical Services department. He \ndescribed the job as testing and quality control work. \n At the time of his workplace injury, his title was waste water utility/lift operator. He \ndescribed monitoring a series of pump stations where water is moved from treatment pond \nto treatment pond and sampling the water to ensure it is safe for release into the river. \nAccording to his testimony, he recovered fully from a lumbar procedure in 2017 and was \nable to do “everything and anything.” He went on to claim that he “pretty much” worked \n364 days a year, only taking off for his mother’s birthday. \n Mr. Washington was working the graveyard shift in the early hours of October 31, \n2020, when an alarm signaled a problem at one of the pump stations. He was familiar with \nthe pumps losing pressure and performing a procedure to back-wash the pipes and reprime \nthe pumps. This consisted of opening and closing various large valves. While turning a \nvalve handwheel about 20 inches wide and two and a half to three feet off the ground, he \nheard a pop in his back. He reported the injury and received some OTC medication. \n“Ibuprofen or something like that or Tylenol or something,” he said. \n He went on to describe worsening pain in his lower back that radiated down to his \ncalf, seeking medical attention, and eventually staying off work for 367 days. The claimant \ndescribed some temporary relief from an injection at some point, but said that the \nsymptoms persisted. \n Mr. Washington recalled presenting for an FCE on June 14, 2021. According to his \ntestimony, “I was advised to give it my all; and so, I did the very best I could do. I did—in \nmy opinion, I did really well, considering the amount of pain and the amount of tests that \nthey put you through. I did it so well... .” [TR. at 21-22.] The claimant offered that his \ncondition probably worsened after the testing, but agreed that he was released by Dr. \n\nWASHINGTON- H009640  \n17 \n \nBruffett’s office shortly after the testing and that he then sought treatment on his own from \nthe VA.\n15\n  \n He briefly described his condition improving after some treatment at the VA before \nmoving on to the circumstances around his returning to work. Referencing Respondent’s \nExhibit No 1 at 5, Mr. Washington spoke about receiving a conditional job offer refusal \nletter in the mail around August of 2021. According to the testimony, the waste water job, \nin the organizational/reporting sense, was being moved from the Lab department to the \nEnvironmental department, and he was given the option to move with the job to the \nEnvironmental department or seek placement, as might be available, elsewhere with the \ncompany. As evidenced by his signature, dated August 20, 2021, on the letter, Mr. \nWashington declined the offer to stay with his old job under the new organizational \nstructure. He was still not working at the time, but eventually did return to Evergreen on \nNovember 3, 2021.  \n Upon his return to work, Mr. Washington took on the role of a “relief worker,” \ncovering for others in various jobs when they were unable to cover their shifts. The new job \npaid less (“[the previous job], that was 32 [dollars] and some change [per hour]... that job \nthat I’m working now, it was 27 [dollars] and 66 [cents] or something like that...”). When \nasked why he chose to switch jobs, he stated, because it’s a lot less strenuous and I think, I \nhave longevity.” Despite the change in jobs, Mr. Washington went on to say that he lives \nwith back pain every day. \n \n \n \n15\n See TR. at 10 (Howe: “... Claimant did go to the VA and [that] medical treatment was \nunauthorized and a Form N was provided to the Claimant.” Frye: “... am I understanding \nthat the Claimant is conceding that the medical at the VA is not authorized?” McNeely: \n“That is correct, Your Honor. That’s not an issue for the Court.”). \n\nWASHINGTON- H009640  \n18 \n \nB. Claimant on Cross Examination by Mr. Frye \n Mr. Washington recalled testifying at his deposition that has a history of knee \nproblems and that had applied for VA disability relating to his left hand and left knee. \nRegarding his knees, he stated, “[i]t’s arthritis, stiffness, maybe, pain and stiffness,” that \nwould cause problems standing, walking, and stooping during flare ups. Medications for his \nknees included NSAIDs and muscle relaxers. The claimant agreed that medical records \nreflected a May 27, 2020 physician visit where he was prescribed NSAIDs and muscle \nrelaxers for pain in his right hip and leg. \n Reviewing the pertinent medical records, the claimant agreed that the notes \nreflected a possible strain or sprain associated with his back pain. Referencing a physician’s \nobservation about job satisfaction and his not appearing to like the people he worked with, \nMr. Washington responded that he did not have to like the people I work with. \n Regarding the FCE, Mr. Washington stated, he had not reviewed the report. At his \ndeposition, the claimant explained that was skeptical about the FCE and its reporting. He \ntestified at the hearing, “Yeah. Yeah, I still feel the same way to this day. No matter how \nthat—how I performed in that test, his outcome or, yeah, it was going to be—it wasn’t going \nto give me any credit, because I did a really good job doing that. I tried. I really gave an \neffort...Nobody read that he [the claimant] drug this across the room. I don’t think that’s in \nthere.” [TR. at 40.] When asked about the FCE report indicating that his walk and gate \nchanged during known versus unknown periods of observation, he responded, “I’m not \naware that I did that. I’m sorry. ... If you want me to explain it, maybe... because the room \nain’t big enough.” \n Mr. Washington confirmed that Dr. Bruffett’s office released him without any \nrestrictions and that he similarly received no work restrictions from the VA. Additional \nquestions and responses related to what the medical records reflected. \n\nWASHINGTON- H009640  \n19 \n \n Mr. Frye then moved on to the job reassignment issue, asking, “from what I \nunderstand the job in the Lab was transferred over to Environmental Services, is that \ncorrect?” Mr. Washington confirmed that and that he spoke with Evergreen employee and \nunion representative Tommie Arrington about declining the conditional job offer: \nQ:  Did you tell her that it was because of physical restrictions? \nA:  If I did, that would be the reason why. Yes, sir. \nQ:  That’s not what I asked you. I asked you, did you give her that reason for \ndeclining the job? \nA:  Yes, sir. I believe that’s right. \nQ:  Okay. Would you agree with me that you already expressed to Dr. \nBruffett’s office a job dissatisfaction and that this lines up with that; that you \ndid not like the job? \nA:  I don’t like getting up and going to work every day, but I do it. I’m sorry. \nI’m sorry. \nQ:  Well, guess what? I don’t either. \nA:  I don’t miss a day of work. That don’t mean I got to love it. I’m sorry, but \nthat—that—that’s just people. We don’t—we work because we have to. \nQ:  Okay. \nA:  I’m sorry. \nQ:  But you chose one job over the other, is that correct? \nA:  Yes, sir. I was given a choice. \nQ:  All right. And that was your choice, and you made the choice, correct? \nA:  That’s correct. \n... \nQ:  And at this point, we’re here and you do not have any functional \nrestrictions from the VA, Dr. Sayer, or Dr. Bruffett, correct? \nA:  That’s correct. \n \n[TR. at 48-49.] After Mr. Frye completed his cross examination, Mr. McNeely rested for the \nclaimant, subject to reserving the right to possibly recall Mr. Washington for rebuttal. \nC. Evergreen Employee and Union Representative Tommie Arrington  \n \n Ms. Arrington was then called by the respondents. She stated that she was \nemployed as a Day Shift Operator for the Environmental Department, where she was \nresponsible (as earlier described by Mr. Washington when he was in that role) for handling \nthe plant’s waste water and ensuring it was safe for release from the plant. She went on to \nexplain the job and the change in reporting structure. Four employees were impacted by the \nrestructuring, and Mr. Washington declined the move, along with two other employees. She \n\nWASHINGTON- H009640  \n20 \n \nexplained how different pay rates are set for employees in different roles. Specifically \nregarding the claimant’s decision to move jobs, she stated that he did not indicate that his \ndecision was based upon any physical limitations, and she was aware of no restrictions on \nhis activities at the time. She offered that upon seeing Mr. Washington at work from time \nto time, he seemed fine, was just working, and made to complaints to her about any \nphysical capabilities. \n After a brief cross examination and re-direct, Ms. Arrington concluded her \ntestimony. The entire record was incorporated by reference and the matter was submitted \nfor adjudication of the issues presented. \nV.  ADJUDICATION \n The stipulated facts, as agreed during the pre-hearing conference, are outlined \nabove. Additionally, the claimant verified at the hearing that his treatment with the VA \nwas not authorized under AWCC rules. See FN 15. \nA.  Temporary Disability and MMI \nTemporary total disability (TTD) is that period within the healing period in which \nthe employee suffers a total incapacity to earn wages. See Ark. State Hwy. Dept. v. \nBreshears, 272 Ark. 244, 613 S.W.2d 392 (1981). The healing period is “that period for \nhealing of an injury resulting from an accident.” Ark. Code Ann. § 11-9-102(12) (emphasis \nadded). The healing period continues until the employee is as close to restored as the nature \nof the injury will permit, and if the underlying condition causing the incapacity has become \nstable and no further treatment will improve that condition, then the healing period is \nended. See Harvest Foods v. Washam, 52 Ark. App. 72, 914 S.W.2d 776 (1996). Temporary \ntotal disability benefits are not to be awarded after the healing period is ended. See \n\nWASHINGTON- H009640  \n21 \n \nMilligan v. West Tree Service, 57 Ark. App. 14, 946 S.W.2d 697 (1997). Whether the healing \nperiod is ended is a question of fact for the Commission. See Harvest, supra. \n I do not find that the claimant is entitled to any TTD benefits beyond what the \nrespondents have already paid. The claimant was originally seen for a suspected muscle \nstrain or sprain in his lower back. As evidenced throughout his multiple visits afterwards, \nhis complaints, the imaging results, and his in-office discussions with providers focus on the \nchronic, congenital, and/or degenerative conditions of his spinal process and not on \ncontinuing troubles with a strained or sprained muscle. Arthropathy, disc dessication, \nstenosis, postlaminectomy syndrome... all were noted on imaging reports, and none were \ncausally linked to turning a valve while at work. Even before his June 21, 2021 release, Dr. \nBruffett mentioned that the claimant was likely already at MMI with regard to any \nnonoperative treatment, though he did not feel surgery was a good option either. It is \nunclear whether Dr. Bruffett, at that time, was speaking directly to the October muscle \ninjury or the ongoing degenerative problems. Regardless, the claimant failed to provide \nevidence that he was entitled to any TTD beyond his eventual release date of June 21, \n2021, when he apparently left Dr. Bruffett’s office and contacted the VA, hoping for some \ndiffering opinion on whether he should be released to work. The VA provider appropriately \nadvised that she “had no authority to tell him one way or the other.” That advice was \nconsistent with earlier instructions from the VA that “it is best not to have several \nproviders managing the same symptoms due to possible conflicting therapies.”  \nAccording to the June 8 VA note, the claimant experienced only occasional low back \npain since COVID started and he was more sedentary. His medications were not \nconsistently reported to providers, and his physical exam on June 8 revealed no tenderness \nin his back or SI joint. He later stated that he had experienced years of back pain, did not \n\nWASHINGTON- H009640  \n22 \n \nrecall any particular injury responsible for it, and was unsure if that pain was service-\nrelated. \n The June 14 FCE report clearly indicated an unreliable effort on the claimant’s part \nduring his evaluation. An unreliable effort alone may not seriously call one’s credibility into \nquestion. But (1) his skepticism about the objectivity of the testing, (2) his differing \nbehaviors under known vs. unknown observation, (3) his insisting that his pain should be \nrecorded as 9-10 throughout testing (under a scale that would rate a pain level of 9 as \n“Excruciating, Unbearable, You are unable to get out of bed on most days even with \nmedication. You cry and moan uncontrollably” and a pain level of 10 as “Worst pain \nimaginable; I’m unconscious due to pain.”) while laughing and carrying on with the \nevaluator, and (4) his denying any new or different pain or soreness from half-a-day’s worth \nof physical exertion after months of self-reported inactivity... all of those do call into \nquestion his credibility. I am assigning greater evidentiary weight to the objective clinical \nfindings that support his release to work without restrictions than to the claimant’s own \nsubjective claims that his MMI date should be some time later than June 21, 2021. \n  Placement at MMI and a release to full duty without restrictions were appropriate \nand supported by the medical evidence. The claimant failed to prove by a preponderance of \nevidence that his healing period extended beyond his release without restrictions by Dr. \nBruffett’s office on June 21, 2021. The claimant’s healing period for a muscle strain likely \nended far earlier, but it certainly ended no later than June 21, 2021. He is, therefore, not \nentitled to TTD benefits between June 21, 2021, and his return to work on November 3, \n2021. \n B.  Impairment Rating and Wage Loss Claims \n Arkansas law provides that a determination of the existence or the extent of a \nphysical impairment shall be supported by objective and measurable findings. Ark. Code \n\nWASHINGTON- H009640  \n23 \n \nAnn. § 11-9-704(c)(1)(B). Objective findings are those that are not under the claimant’s \nvoluntary control. Ark. Code Ann. § 11-9-102(16)(A)(i). Mere complaints of pain may not be \nconsidered when determining an impairment rating. Ark. Code Ann. § 11-9-\n102(16)(A)(ii)(a). Specifically regarding ratings to the spine, straight-leg-raising tests and \nrange-of-motion tests shall not be considered objective findings. Ark. Code Ann. § 11-9-\n102(16)(A)(ii)(b).  Additionally, medical opinions on compensability and permanent \nimpairment must be stated within a reasonable degree of medical certainty. Ark. Code Ann. \n§ 11-9-102(16)(B) (emphasis added). \n Dr. Bruffett’s office did not assign an impairment rating, and the claimant presented \nno medical evidence at the hearing in support of the requested 5% impairment rating. He \nis, accordingly, not entitled to an impairment rating or PPD benefits. \n The claimant also failed to prove by a preponderance of the evidence that he is \nentitled to any wage loss. “To be entitled to any wage-loss disability in excess of permanent \nphysical impairment, a claimant must first prove, by a preponderance of the evidence, that \nshe sustained permanent physical impairment as a result of a compensable injury.” Wal-\nMart Stores, Inc. v. Connell, 340 Ark. 475, 10 S.W.3d 882 (2000) (citing Smith v. Gerber \nProds., 54 Ark. App. 57, 922 S.W.2d 365 (1996)). “In considering claims for permanent \npartial disability benefits in excess of the employee's percentage of permanent physical \nimpairment, the Workers' Compensation Commission may take into account, in addition to \nthe percentage of permanent physical impairment, such factors as the employee's age, \neducation, work experience, and other matters reasonably expected to affect his or her \nfuture earning capacity.” Ark. Code Ann. § 11-9-522(b)(1). \n However, “any consideration of ‘the employee's age, education, work experience, and \nother matters reasonably expected to affect his earning capacity’ may not occur until the \n\nWASHINGTON- H009640  \n24 \n \nCommission has first determined ‘the percentage’ of permanent physical impairment.” \nWal-Mart Stores, Inc. v. Connell, 340 Ark. 475, 479, 10 S.W.3d 882, 884 (2000). \n As the claimant failed to prove that he is entitled to an impairment rating, his claim \nfor any wage-loss benefits must also fail. \n C.  Attorney’s Fee \n In accordance with the above, the claimant is not entitled to an attorney’s fee. \nVI.  ORDER \n Consistent with the findings of fact and conclusions of law set forth above, this claim \nis denied and dismissed. \nSO ORDERED. \n \n________________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":47107,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC FILE No H009640 JAMES WASHINGTON, EMPLOYEE CLAIMANT EVERGREEN PACKAGING, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE Co., CARRIER RESPONDENT ESIS, Inc., TPA RESPONDENT OPINION FILED APRIL 4, 2023 On hearing before Arkansas Workers’ Compensation Commission (AWCC) ...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:5","denied:5"],"injuryKeywords":["back","lumbar","hip","strain","sprain","fracture","knee"],"fetchedAt":"2026-05-19T23:08:14.389Z"},{"id":"alj-H102269-2023-04-03","awccNumber":"H102269","decisionDate":"2023-04-03","decisionYear":2023,"opinionType":"alj","claimantName":"Diane Lybarger","employerName":"Re-Engineered Business Solutions, Inc./ Rbs, Inc","title":"LYBARGER VS. RE-ENGINEERED BUSINESS SOLUTIONS, INC./ RBS, INC. AWCC# H102269 APRIL 3, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//LYBARGER_DIANE_H202913_20230403.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LYBARGER_DIANE_H202913_20230403.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nAWCC NO.: H202913 \n \nDIANE LYBARGER,  \nEMPLOYEE                                                                                                              CLAIMANT                                   \n \nRE-ENGINEERED BUSINESS SOLUTIONS, INC./, \nRBS, INC., EMPLOYER                                                                                     RESPONDENT           \n \nNATIONAL UNION FIRE INSURANCE COMPANY, \nINSURANCE COMPANY                                                                                  RESPONDENT \n \nGALLAGHER BASSETT SERVICES, INC.,               \nTHIRD PARTY ADMINSTRATOR (TPA)                                                      RESPONDENT                           \n                                               \n \nOPINION FILED APRIL 3, 2023   \n \nHearing before Administrative Law Judge Chandra L. Black, on March 31, 2023, in Hot Springs, \nGarland County, Arkansas. \n  \nClaimant represented by Ms. Laura Beth York, Attorney at Law, Little Rock, Arkansas.  Ms. York \nwaived her appearance at the hearing.      \n \nRespondents represented by Mr. Rick Behring, Jr., Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  on the Respondents’ motion  to  dismiss  for  want  of  prosecution,  on \nMarch 31, 2023, in the above-styled claim pursuant to Dillard v. Benton County Sheriff’s Office, \n87 Ark. App. 379, 192 S.W. 3d 287 (2004).   More specifically, the sole issue for determination is \nwhether this claim should be dismissed due to the Claimant’s failure to timely prosecute it under \nthe provisions of Ark. Code Ann. §11-9-702 (Repl. 2012), and Arkansas Workers’ Compensation \nCommission Rule 099.13.  \nThe record consists of the March 31, 2023 hearing transcript and Respondents’ Exhibit 1, \nwhich consists of thirteen (13) numbered pages.  Also, the entire Commission’s file was made a \npart of the record.  It is hereby incorporated herein by reference. \n\nLybarger – H 202913 \n \n2 \n \nReasonable  notice  of  the  dismissal  hearing  was  served  on  all  the  parties  in  the  manner \nestablished by law.   \n No testimony was taken during the hearing. \n          BACKGROUND \nThe Claimant was involved in a work-related motor vehicle accident on April 8, 2022.  On \nor about April 19, 2022 the respondent-insurance carrier filed a Form AR-2 with the Commission \naccepting  this  as  a  compensable  claim.  Per  documents  filed  with  the  Commission  by  the \nRespondents’ attorney, the Claimant was declared to be at maximum medical improvement and \nreleased  with  no  work  restrictions  or  impairment  on  October  25,  2022.  As  a  result,  the \nRespondents have taken  the position that  they have authorized and paid all appropriate medical \nbenefits on this claim.         \nConversely, the Claimant’s attorney filed a Form AR-C with the Commission on July 6,  \n2022 in this matter.  Per this document, the Claimant asserted her entitlement to both initial and \nadditional workers’ compensation benefits for “injuries to her sternum, ribs, pelvis, jaw, face, neck, \nback, and other whole body.”       \nSince  the  filing  of  the  Form  AR-C,  the  Claimant  has  not  requested  a  hearing  before  the \nCommission on the merits of her claim.                  \nTherefore,  on  March  6,  2023,  the  Respondents  filed  with  the  Commission  a  Motion  to \nDismiss and Incorporated Brief in Support, along with a Certificate of Service to the Claimant’s \nattorney.   \nOn  March  13,  2023,  the  Commission  sent  a  notice  to  the Claimant’s  attorney  and  the \nClaimant notifying them of the Respondents’ motion with a deadline of twenty (20) days for filing \na written objection.  \n\nLybarger – H 202913 \n \n3 \n \nThat  same  day, the  Claimant’s  attorney wrote  to  the  Commission,  communicating  her \nposition  regarding  the  motion.    Specifically,  she  stated: “No  objection  to  a  motion  to  dismiss \nwithout prejudice.” \nOn March 15, 2023, the Commission sent a Notice of Hearing to the parties letting them \nknow that a hearing was scheduled for March 31, 2023 on the Respondents’ motion.  \n             DISCUSSION \n Subsequently,  a  hearing  was  conducted  before  the  Commission, on  the  Respondents’ \nmotion to dismiss as scheduled.   During the hearing, counsel for the Respondents moved that the \nwithin claim be dismissed without prejudice due to a lack of prosecution.  Specifically, counsel \nnoted that the Claimant has not requested a hearing or had any activity on the claim since the filing \nof the Form AR-C.  He also noted that all appropriate benefits have been paid to and on behalf of \nthe Claimant.   \nMy review of the entire record establishes that more than six (6) months have passed after \nthe filing of the Form AR-C for a claim of workers’ compensation benefits.  However, since this \ntime, the Claimant has failed to make with the Commission a bona fide request for a hearing with \nrespect to her claim.  Moreover, the Claimant does not object to her claim being dismissed without \nprejudice.  Under these  circumstances,  I am persuaded that  the Claimant has had ample time to \npursue  her  claim for  workers’  compensation benefits,  but  she  has  failed  to  do  so.  Thus,  the \nClaimant has failed to timely prosecute her claim.   \nTherefore, based on my review of the documentary evidence, and all other matters properly \nbefore this Commission, I find that the Respondents’ motion to dismiss this claim should be and \nis hereby granted under Ark. Code Ann. §11-9-702 (Repl. 2012), and Commission Rule 099.13. \n\nLybarger – H 202913 \n \n4 \n \nAccordingly, this  claim  for  workers’  compensation  benefits is  respectfully  dismissed  without \nprejudice to the refiling within the specified limitation period. \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn the basis of the record as a whole, I hereby make the following findings of fact and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Claimant filed a Form AR-C with the Commission on or about July 6, \n2022. \n \n3. More  than  six  (6)  months  have  passed  since  the  Claimant  filed  the  Form \nAR-C for a claim of workers’ compensation benefits.  However, since the  \nfiling  of  said  claim,  the  Claimant  has  not  requested  a  hearing  or  had  any \nactivity on the claim.  \n \n4. The  Respondents  filed  a  Motion to  Dismiss  and  Incorporated  Brief  in \nSupport with the Commission on March 6, 2023.        \n   \n5. The  Claimant  does  not  object  to  her  claim  being  dismissed  without \nprejudice.  \n \n6. That  the  evidence  preponderates  that  the  dismissal  of  this  claim  without \nprejudice is warranted. \n \n7. That the Respondents’ motion to dismiss is hereby granted pursuant to Ark. \nCode Ann.§11-9-702 (Repl. 2012), and Commission Rule 099.13, without \nprejudice to the refiling of the claim within the applicable limitation period.  \n   \nORDER \nBased upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for workers’ compensation benefits.  This claim is dismissed under the \nprovisions of Ark. Code Ann. §11-9-702 (Repl. 2012), and Commission Rule 099.13, without  \n \n \n\nLybarger – H 202913 \n \n5 \n \nprejudice to the refiling of this claim within the specified limitation period. \nIT IS SO ORDERED. \n  \n                          \n \n  _______________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":7665,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC NO.: H202913 DIANE LYBARGER, EMPLOYEE CLAIMANT RE-ENGINEERED BUSINESS SOLUTIONS, INC./, RBS, INC., EMPLOYER RESPONDENT NATIONAL UNION FIRE INSURANCE COMPANY, INSURANCE COMPANY RESPONDENT GALLAGHER BASSETT SERVICES, INC., THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T23:08:10.138Z"},{"id":"alj-H201714-2023-03-31","awccNumber":"H201714","decisionDate":"2023-03-31","decisionYear":2023,"opinionType":"alj","claimantName":"Rebecca Brown","employerName":"Nestle USA, Inc","title":"BROWN VS. NESTLE USA, INC. AWCC# H201714 MARCH 31, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Brown_Rebecca_H201714_20230331.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Brown_Rebecca_H201714_20230331.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H201714 \n \n \nREBECCA BROWN, EMPLOYEE CLAIMANT \n \nNESTLE USA, INC., \n Employer RESPONDENT \n \nINDEMNITY INSURANCE COMPANY, \nOF NORTH AMERICA (PA), \n Insurance Carrier RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT \nSERVICES, INC., \n Third Party Administrator RESPONDENT \n \n \nOPINION FILED MARCH 31, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  March  24,  2023, in \nJonesboro, Craighead County, Arkansas \n \nClaimant represented herself, Pro Se. \n \nRespondent No. 1 is represented by Mr. Michael C. Stiles, Attorney at Law, Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.   No   testimony   was   taken.   The   evidentiary   record   consists   of \nRespondents  Exhibit  1  and  Respondent’s  oral  argument.  Without  objection,  the \nCommission’s  file  on  this  claim  has  been  incorporated  herein  by  reference  in  its \nentirety. \n The record reflects the following procedural history:  The Claimant alleges \nthat she has sustained a compensable injury to her hip and left leg resulting from \na specific incident on December 10, 2021. Claimant further alleges that her injury \n\nBROWN – H201714 \n \n2 \noccurred  during  the  course  and  scope  of  her  employment  with  Nestle  USA,  Inc. \nThe  Claimant  did  not  file  a  Form  AR-C  with  the  Commission  in  this  matter.  \nHowever,  Respondent  filed  a  Form AR-2  on  February  28,  2022,  controverting \nClaimant’s  entire  claim.    Claimant  requested  a  hearing  on  March  28,  2022. \nClaimant  next  filed  a  Preliminary  Notice  with  the  Commission  indicating  her \nwillingness  to mediate  this  claim on  May  3, 2022.The  Respondents  informed the \nClerk  of  the  Arkansas  Workers’  Compensation  Commission  they  were  willing  to \nmediate  this  claim,  and  the  claim  was  assigned  to  the  Commission’s  Legal \nAdvisor Division. \nThe  Claimant  expressed  in  early  June  2022  her  desire  to  retain  counsel \nbefore  the  mediation.  Since  then,  there  has  been  no  action  on  this  case  for \napproximately  nine  months.  There  has  not  been  an  entry  of  appearance of  an \nattorney on the  behalf  of  the  Claimant.  The Claimant has  not  reached  out  to  the \nLegal  Advisor  Division  to  request  a  mediation  date  or  the  Administrative  Law \nJudge for a new hearing date.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n\nBROWN – H201714 \n \n3 \n2. The  parties  were  provided  reasonable  notice  of  the  motion  to \ndismiss and of the hearing thereon under AWCC R. 099.13. \n3. The   Commission   is   authorized   to   dismiss   claims   for   want   of \nprosecution pursuant to AWCC R. 099.13. \n4. This  claim  should  be,  and  hereby  is,  dismissed without  prejudice \npursuant to AWCC R. 099.13 due to want of prosecution. \n5. Because of  the above  finding,  Ark.  Code  Ann. § 11-9-702(d)  (Repl. \n2012) will not be addressed. \nIII.  DISCUSSION \n Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: \n \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation,  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof the claim within the limitation period specified in subsection (b) of \nthis section. \n \nIn addition, AWCC R. 099.13 provides in relevant part: \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n The  Arkansas  Court  of  Appeals  in Johnson  held  that  a  claim  could  be \ndismissed for lack of prosecution since there is no justiciable issue.  The authority \n\nBROWN – H201714 \n \n4 \nfor doing so comes under Rule 13, which the Commission promulgated under Ark. \nCode  Ann.  §  11-9-205(a)(1)(A)  (Repl.  2012).  This  provision authorizes  it  “[t]o \nmake such rules and regulations as may be found necessary[.]”  See Dura Craft \nBoats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969); Johnson, supra.  \nContra  Dillard  v.  Benton  Cty.  Sheriff’s Off.,  87  Ark.  App.  379,  192  S.W.3d  287 \n(2004)(“Rule  13  .  .  .  allows  a  dismissal  .  .  .  pursuant  to  Ark.  Code  Ann.  §  11-9-\n702(b)(4),  the  portion  of  the  statute  relating  to  additional  benefits”).    Certainly, \nsuch  a  claim  could  be  re-filed  if  a  justiciable  issue  arises,  provided  that  all  other \nprerequisites for a cognizable claim are met. \n At the hearing, The Claimant did not appear at the March 24, 2023, hearing \nafter  being  duly  served  by  U.S.  certified  mail,  return  receipt  request.  The  return \nreceipt   was   returned   to   the   Commission   with   Claimant’s   signature.   The \nRespondent’s  Attorney  was  present  at  the  hearing.  Under Johnson,  supra,  this \nclaim  should  thus  be  dismissed  under  Rule  13.    Because  of  this  finding,  it  is \nunnecessary to address the application of § 11-9-702(d). \n That, however, leaves the question of whether the dismissal should be with \nor without prejudice.  The Commission possesses the authority to dismiss claims \nwith  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co.,  23  Ark. App.  137,  744 \nS.W.2d  402  (1988).    This  includes  claims  dismissed  under  Rule  13.   Johnson, \nsupra.  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS 5 10, the Commission \nwrote:    “In  numerous  past  decisions,  this  Commission  and  the  Appellate  Courts \nhave   expressed   a   preference   for   dismissals   without   prejudice.”      (citing \n\nBROWN – H201714 \n \n5 \nProfessional  Adjustment  Bureau  v.  Strong,  75  Ark.  249, 629  S.W.2d  284  (1982); \nHutchinson  v.  North  Arkansas  Foundry,  Claim  No.  D902143  (Full  Commission \nOpinion filed October 23, 1991)).  In light of this preference,  this claim should be \ndismissed without prejudice. \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6895,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H201714 REBECCA BROWN, EMPLOYEE CLAIMANT NESTLE USA, INC., Employer RESPONDENT INDEMNITY INSURANCE COMPANY, OF NORTH AMERICA (PA), Insurance Carrier RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., Third Party Administrator RESPONDENT OPINION FILED MARCH...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":["hip"],"fetchedAt":"2026-05-19T23:10:01.540Z"},{"id":"alj-H200712-2023-03-31","awccNumber":"H200712","decisionDate":"2023-03-31","decisionYear":2023,"opinionType":"alj","claimantName":"Jonathan Thielemier","employerName":"Randolph County","title":"THIELEMIER VS. RANDOLPH COUNTY AWCC# H200712 MARCH 31, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Thielemier_Jonathan_H200712_20230331.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Thielemier_Jonathan_H200712_20230331.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H200712 \n \n \nJONATHAN THIELEMIER, EMPLOYEE CLAIMANT \n \nRANDOLPH COUNTY, \n Self-Insured Employer RESPONDENT \n \nAAC RISK MANAGEMENT SERVICES, \n Third Party Administrator RESPONDENT \n \n \nOPINION FILED MARCH 31, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch  on  March  24,  2023, in \nJonesboro, Craighead County, Arkansas \n \nClaimant represented himself, Pro Se. \n \nRespondent No. 1 is represented by Mr. Michael E. Ryburn, Attorney at Law, Little \nRock, Arkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.   No   testimony   was   taken.   The   evidentiary   record   consists   of \nRespondents Exhibit 1 and oral argument of the Respondents.  Without objection, \nthe Commission’s file on this claim has been incorporated herein by reference in \nits entirety. \n The  record  reflects  the  following  procedural  history:    The  Claimant  has \nalleged  he  has  sustained  multiple  injuries  when  he  fell  into  an  open  top  trailer \nduring the course and scope of his employment. Claimant specifically alleges that \nhe has sustained injuries to his face, eyes, wrists, arms, neck, spine, and multiple \nother  body  parts  from  a  specific  incident  on  January  10,  2022.  Respondents \naccepted the claim as compensable and have paid benefits. The Claimant filed a \n\nTHIELEMIER – H200712 \n \n2 \nForm AR-C with the Commission on March 2, 2022. Since then, the Claimant has \nnot requested a hearing and no efforts have been made to prosecute this claim.  \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The  parties  were  provided  reasonable  notice  of  the  motion  to \ndismiss and of the hearing thereon under AWCC R. 099.13. \n3. The   Commission   is   authorized   to   dismiss   claims   for   want   of \nprosecution pursuant to AWCC R. 099.13. \n4. This  claim  should  be,  and  hereby  is,  dismissed without  prejudice \npursuant to AWCC R. 099.13 due to want of prosecution. \n5. Because of  the above  finding,  Ark.  Code  Ann. § 11-9-702(d)  (Repl. \n2012) will not be addressed. \nIII.  DISCUSSION \n Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: \n \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation,  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof the claim within the limitation period specified in subsection (b) of \nthis section. \n \n\nTHIELEMIER – H200712 \n \n3 \nIn addition, AWCC R. 099.13 provides in relevant part: \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n The  Arkansas  Court  of  Appeals  in Johnson  held  that  a  claim  could  be \ndismissed for lack of prosecution since there is no justiciable issue.  The authority \nfor doing so comes under Rule 13, which the Commission promulgated under Ark. \nCode  Ann.  §  11-9-205(a)(1)(A)  (Repl.  2012).    This  provision authorizes  it  “[t]o \nmake  such  rules  and  regulations  as  may  be  found  necessary[.]”  See Dura  Craft \nBoats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d 562 (1969); Johnson, supra.  \nContra  Dillard  v.  Benton  Cty.  Sheriff’s  Off.,  87  Ark.  App.  379,  192  S.W.3d  287 \n(2004)(“Rule  13  .  .  .  allows  a  dismissal  .  .  .  pursuant  to  Ark.  Code  Ann.  §  11-9-\n702(b)(4),  the  portion  of  the  statute  relating  to  additional  benefits”).    Certainly, \nsuch  a  claim  could  be  re-filed  if  a  justiciable  issue  arises,  provided  that  all  other \nprerequisites for a cognizable claim are met. \n At the hearing, The Claimant did not appear at the March 24, 2023, hearing \nafter  being  duly  served  by  U.S.  certified  mail,  return  receipt  request.  The  return \nreceipt   was   returned   to   the   Commission   with   Claimant’s   signature.   The \nRespondents’  Attorney  was  present  at  the  hearing.  Under Johnson,  supra,  this \n\nTHIELEMIER – H200712 \n \n4 \nclaim  should  thus  be  dismissed  under  Rule  13.    Because  of  this  finding,  it  is \nunnecessary to address the application of § 11-9-702(d). \n That, however, leaves the question of whether the dismissal should be with \nor without prejudice.  The Commission possesses the authority to dismiss claims \nwith  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co.,  23  Ark. App.  137,  744 \nS.W.2d  402  (1988).    This  includes  claims  dismissed  under  Rule  13.   Johnson, \nsupra.  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS 5 10, the Commission \nwrote:    “In  numerous  past  decisions,  this  Commission  and  the  Appellate  Courts \nhave   expressed   a   preference   for   dismissals   without   prejudice.”      (citing \nProfessional  Adjustment  Bureau  v.  Strong,  75  Ark.  249, 629  S.W.2d  284  (1982); \nHutchinson  v.  North  Arkansas  Foundry,  Claim  No.  D902143  (Full  Commission \nOpinion filed October 23, 1991)).  In light of this preference, this claim should be \ndismissed without prejudice. \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":6045,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H200712 JONATHAN THIELEMIER, EMPLOYEE CLAIMANT RANDOLPH COUNTY, Self-Insured Employer RESPONDENT AAC RISK MANAGEMENT SERVICES, Third Party Administrator RESPONDENT OPINION FILED MARCH 31, 2023 Hearing before Administrative Law Judge Steven Porch on March 24, ...","outcome":"dismissed","outcomeKeywords":["dismissed:8"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T23:10:03.673Z"},{"id":"alj-H205025-2023-03-30","awccNumber":"H205025","decisionDate":"2023-03-30","decisionYear":2023,"opinionType":"alj","claimantName":"Callie Tidwell","employerName":"Lonoke High School","title":"TIDWELL VS. LONOKE HIGH SCHOOL AWCC# H205025 MARCH 30, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TIDWELL_CALLIE_H205025_20230330.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TIDWELL_CALLIE_H205025_20230330.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.  H205025 \n \nCALLIE TIDWELL,  \nEMPLOYEE                                                                                                               CLAIMANT                                   \n \nLONOKE HIGH SCHOOL, \nEMPLOYER                                                                                                          RESPONDENT  \n \nAR SCHOOL BOARDS ASSOC., WCT,                \nINSURNACE CARRIER/TPA                                                                             RESPONDENT                                                                 \n                                               \n \nOPINION FILED MARCH 30, 2023   \n \nHearing before Administrative Law Judge Chandra L. Black, on March 29, 2023, in Little Rock, \nPulaski County, Arkansas. \n  \nClaimant represented by Ms. Laura Beth York, Attorney at Law, Little Rock, Arkansas.  Ms. York \nwaived her appearance at the hearing.      \n \nRespondents represented by Ms. Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \n                                                 STATEMENT OF THE CASE      \n \n A  hearing  was  held  on the Respondents’ motion  to  dismiss  for  want  of  prosecution,  on \nMarch 29, 2023, in this claim for workers’ compensation benefits pursuant to Dillard v. Benton \nCounty Sheriff’s Office,  87  Ark.  App.  379,  192  S.W.  3d  287  (2004).      Here,  the  sole  issue  for \ndetermination  is  whether  this  claim  should  be  dismissed due to the Claimant’s failure  to  timely \nprosecute it  under  the  provisions  of  Ark.  Code  Ann.  §11-9-702  (Repl.  2012),  and/or  Arkansas \nWorkers’ Compensation Commission Rule 099.13.  \nThe  record  consists  of  the  hearing  transcript  of  the  March  29,  2023  and  the  documents \ncontained  therein.    Specifically,  said  documentary  evidence  includes  Respondents’  Hearing \nExhibit  Index.  Said  exhibit  encompasses  eighteen  (18)  numbered  pages  and  was  marked  as \n\nTidwell – H205025 \n \n2 \n \nRespondents’ Exhibit 1.  Moreover,  the entire Commission’s file  has  been  made  a  part  of  the \nrecord.  It is hereby incorporated herein by reference. \nReasonable  notice  of  the  dismissal  hearing  was  served  on  all  the  parties  in  the  manner \nestablished by law.   \n No testimony was taken during the hearing. \n          BACKGROUND \nThe Claimant’s attorney filed a Form AR-C with the Commission on July 25, 2022 in the \nabove  captioned.    Per  this  document,  the  Claimant  asserted  her  entitlement  to  both  initial  and \nadditional workers’ compensation benefits.  Her alleged work-related accident occurred on May \n23,  2022.    Counsel  for  the  Claimant  briefly  described  the  cause  of  injury  and  the  part  of  body \ninjured: “Claimant was in the scope and course of employment and sustained injury to her right \near, neck, jaw, right shoulder, right elbow, right hip, both legs, both feet and other whole body.”       \nOn July 14, 2022 the respondent-insurance carrier filed a Form AR-2 with the Commission \naccepting the claim as a “medical only claim.”  Moreover, on July 26, 2022, the claims adjuster \nfor the Respondents  wrote a letter to the Commission regarding this claim.  The adjuster stated \nthat  they  had  accepted  this  claim  as  compensable,  and  all  reasonably  necessary  and  authorized \nmedical expenses and indemnity benefits have been paid.         \nSince the filing of the Form AR-C, the Claimant has failed to request a hearing before the \nCommission on the merits of her claim.                  \nTherefore, on January 27, 2023, the Respondents filed a Motion to Dismiss for Failure to \nProsecute, with a Certificate of Service to the Claimant’s attorney.   \n\nTidwell – H205025 \n \n3 \n \nOn  February  2,  2023,  the  Commission  sent  a  notice  to  the Claimant’s attorney and the \nClaimant notifying them of the Respondents’ motion with a deadline of twenty (20) days for filing \na written objection.  \nPer  an  email  of  February  2,  2023, the Claimant’s attorney wrote  to  the  Commission, \nexpressing  her  position  regarding  the  motion.    Specifically,  she  wrote  in  relevant  part: “The \nClaimant does not object to the Motion to Dismiss without prejudice.” \nOn February 23, 2023, the Commission sent a Notice of Hearing to the parties letting them \nknow that a hearing was scheduled for March 29, 2023 on the Respondents’ motion to dismiss for  \nlack of prosecution.      \n          DISCUSSION \n Subsequently,  a  hearing  was  conducted  before  the  Commission, on the Respondents’ \nmotion to dismiss as scheduled.   During the hearing, counsel for the Respondents moved that the \nwithin claim be dismissed without prejudice due to a lack of prosecution because the Claimant has \nfailed  to  request  a  hearing  since  the  filing  of  the  Form  AR-C  and  considering  all  appropriate \nbenefits have been paid to and on behalf of the Claimant.   \nMy review of the entire record establishes that more than six (6) months have passed after \nthe filing of the Form AR-C for a claim of workers’ compensation benefits.  However, since this \ntime the Claimant has failed to make with the Commission a bona fide request for a hearing with \nrespect to her claim.  Moreover, the Claimant does not object to her claim being dismissed without \nprejudice.  Considering the foregoing, I am persuaded that   the Claimant has had ample time to \npursue  her  claim for workers’ compensation benefits,  but  she  has  failed  to  do  so.    Thus,  the \nClaimant has failed to timely prosecute her claim.   \n\nTidwell – H205025 \n \n4 \n \nTherefore, based on my review of the documentary evidence, and all other matters properly \nbefore this Commission, I find that the Respondents’ motion to dismiss this claim should be and \nis hereby granted under Ark. Code Ann. §11-9-702 (Repl. 2012), and Commission Rule 099.13.  \nAccordingly, this claim for workers’ compensation benefits is  respectfully  dismissed  without \nprejudice to the refiling within the specified limitation period. \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn the basis of the record as a whole, I hereby make the following findings of fact and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. The Claimant filed a Form AR-C with the Commission on or about July 25, \n2022. \n \n3. More  than  six  (6)  months  have  passed  since  the  Claimant  filed  the  Form \nAR-C for a claim of workers’ compensation benefits.  However, subsequent \nto the filing of said claim, there has been no request for a hearing made by \nthe Claimant.  \n \n4. The  Respondents  filed  with  the  Commission  a  Motion to  Dismiss  for \nFailure to Prosecute on January 7, 2023.        \n   \n5. The  Claimant  does  not  object  to  her  claim  being  dismissed  without \nprejudice.  That dismissal of this claim is warranted. \n \n6. That the Respondents’ motion to dismiss is hereby granted pursuant to Ark. \nCode Ann.§11-9-702 (Repl. 2012), and Commission Rule 099.13, without \nprejudice to the refiling of the claim within the applicable limitation period.  \n   \nORDER \nBased upon the foregoing Findings of Fact and Conclusions of Law, I have no alternative \nbut to dismiss this claim for workers’ compensation benefits.  This claim is dismissed under the \nprovisions of Ark. Code Ann. §11-9-702 (Repl. 2012), and Commission Rule 099.13, without  \n \n\nTidwell – H205025 \n \n5 \n \nprejudice to the refiling of this claim within the specified limitation period. \nIT IS SO ORDERED. \n  \n                          \n \n  _______________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":7846,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205025 CALLIE TIDWELL, EMPLOYEE CLAIMANT LONOKE HIGH SCHOOL, EMPLOYER RESPONDENT AR SCHOOL BOARDS ASSOC., WCT, INSURNACE CARRIER/TPA RESPONDENT OPINION FILED MARCH 30, 2023 Hearing before Administrative Law Judge Chandra L. Black, on March 29, 2023, in Lit...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":["neck","shoulder","hip"],"fetchedAt":"2026-05-19T23:09:59.472Z"},{"id":"alj-H203952-2023-03-29","awccNumber":"H203952","decisionDate":"2023-03-29","decisionYear":2023,"opinionType":"alj","claimantName":"Sharon Simpson","employerName":"St. Vincent Infirmary Med. Ctr","title":"SIMPSON VS. ST. VINCENT INFIRMARY MED. CTR. AWCC# H203952 MARCH 29, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Simpson_Sharon_H203952_20230329.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Simpson_Sharon_H203952_20230329.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H203952 \n \n \nSHARON SIMPSON, EMPLOYEE CLAIMANT \n \nST. VINCENT INFIRMARY MED. CTR., \n EMPLOYER RESPONDENT \n \nINDEMNITY INS. CO. OF NO. AMER., \n CARRIER RESPONDENT \n \n \nOPINION FILED MARCH 29, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  February  14,  2023,  in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant pro se. \n \nRespondents  represented  by  Mr.  Michael  E.  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On  February  14,  2023,  the  above-captioned  claim  was  heard  in  Little  Rock, \nArkansas.  A prehearing conference took place on December 12, 2022.  The Prehearing \nOrder  entered  that  day  pursuant  to  the  conference  was  admitted  without  objection  as \nCommission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n The parties discussed the stipulations set forth in Commission Exhibit 1.  With an \namendment of the fourth at the hearing, they now read: \n\nSIMPSON – H203952 \n \n2 \n1. The  Arkansas  Workers’ Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The employee/employer/carrier relationship existed on May 18, 2022, and \nat all other relevant times. \n3. Respondents have controverted this claim in its entirety. \n4. Claimant’s  average  weekly  wage entitles  her  to  compensation  rates  of \n$774.00/$580.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  The following were litigated: \n1. Whether  Claimant  sustained  compensable  injuries  to  her  left  ankle  and \nright knee by specific incident. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties are: \n Claimant: \n 1. Claimant  contends  that  she  sustained  compensable  injuries  to  her  left \nankle and right knee when she fell twice on May 18, 2022, and that she is \nentitled to benefits pursuant thereto. \n\nSIMPSON – H203952 \n \n3 \n Respondents: \n1. Claimant  was  not  performing  employment  services  at  the  time  of  the \naccident.    She  fell  in  the  parking  lot  before  reporting  to  her  workstation.  \nClaimant has no objective medical evidence to support her claim.  She did \nnot miss enough time from work to be eligible for temporary total disability \nbenefits. \n2. This  matter  has  been  dismissed  by  order  of  an  administrative  law  judge \ndated  September  29,  2022.    There  was  no  appeal  from  that  order  within \n30 days.  Claim No. H203952 has been dismissed.\n1\n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the evidentiary record, and having had an opportunity to hear the \ntestimony  of  the  claimant  and  to  observe  her  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n \n \n1\nRespondents have not raised this as an issue.  I cannot address such an issue \nsua  sponte.   See Carthan  v.  School  Apparel,  Inc.,  2006  AR  Wrk.  Comp.  LEXIS  451, \nClaim  No.  F410921  (Full  Commission  Opinion  filed  November  28,  2006)(improper  for \nadministrative law judge to address issues sua sponte); Singleton v. City of Pine Bluff, \n2006  AR  Wrk.  Comp.  LEXIS  79,  Claim  No.  F302526  (Full  Commission  Opinion  filed \nFebruary   23,   2006), rev’d   on   other   grounds,   No.   CA06-398   (Dec.   6,   2006) \n(unpublished)(same).  Regardless,   I   note   that   Claimant   filed   a   Form   AR-C on \nSeptember 29, 2022, after Administrative  Law Judge Terry Don Lucy entered an order \nof dismissal.  See Sinclair v. Magnolia Hospital, 1998 AR Wrk. Comp. LEXIS 786, Claim \n\nSIMPSON – H203952 \n \n4 \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Respondents’ objection to the admission of Claimant’s Proffered Exhibit 3 \nis sustained; it will not be admitted into evidence. \n4. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  she \nsustained a compensable injury either to her left ankle or to her right knee. \n5. Because   of   Finding/Conclusion   No.   4 supra,   the   remaining   issues–\nwhether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment and temporary total disability benefits–are moot and will not be \naddressed. \nPRELIMINARY RULING \nAdmission of Claimant’s Proffered Exhibit 3 \n At the hearing, Claimant moved for the admission of this proffered exhibit, which \ncontains her medical records.  Respondents’ counsel objected to its admission, stating \nthat  he  was  not  furnished  with  a  copy  thereof  at  least  seven  days  before  the  hearing.  \nThe Prehearing Order reads in pertinent part: \nExhibits  and  the  identity  of  witnesses  must  be  exchanged  at  least  seven \n(7)  days  prior  to  the  hearing.    All  depositions  must  be  completed  prior  to \nthe hearing.  Medical reports must be exchanged at least seven (7) days \nprior to the hearing pursuant to Ark. Code Ann. § 11-9-705(c)(2)(A) (Repl. \n2012).  Evidence not disclosed in compliance with this Order shall not be \nconsidered  as  evidence  unless  prior  permission  of  the  Commission  is \nobtained and for good cause shown. \n \n \nNo.  E703502 (Full Commission Opinion filed December 22, 1998)(a claim is “typically” \nfiled via a Form AR-C). \n\nSIMPSON – H203952 \n \n5 \n After  Claimant  offered  the  proffered  exhibit  into  evidence,  the following  lengthy \ncolloquy took place: \nJUDGE  FINE:    Mr.  Ryburn,  do  you  need  a  second  to  examine  anything \nshe is wanting to offer or do you have a response to this? \n \nMR.  RYBURN:    Miss  Simpson  did  call  me  late  last  week  and  says, “I’m \ngonna  fax  you  something.”  She  did  fax  me  some  medical  records.    She \ndid  say, “I  know  it’s  late.    I  know  they’re  not  within  the  seven-day  rule.”  \nAnd  I  said, “I’ll  have  to  look  at  them  and  either  make  an  objection  or  not \nmake  an  objection,  but  I  don’t  know  what  I’m  talking  about  yet  until  I  get \nthem.”  And sent two different packages; one came I think Friday and one \ncame Monday. \n \nJUDGE FINE:  All right. \n \nMS. SIMPSON:  I hope they both came the same day.  I’m sorry. \n \nJUDGE  FINE:   All  right.   Let  me  ask  you:   is  Mr.  Ryburn  correct  on  what \nhe just stated to me? \n \nMS. SIMPSON:  He is correct. \n \nJUDGE FINE:  All right.  Now today is Tuesday, February 14\nth\n. \n \nMS. SIMPSON:  Correct. \n \nJUDGE FINE:  Now you testified that you read my Prehearing Order.  Do \nyou recall that? \n \nMS. SIMPSON:  Yes. \n \nJUDGE FINE:  And do you recall me talking to you during the prehearing \ntelephone  conference  saying  that  you  have  to  get  any  medical  records \nthat  you  want  admitted  into  evidence  to  Mr.  Ryburn  at  least  seven  days \nbefore the hearing?  Do you remember me explaining that to you? \n \nMS. SIMPSON:  Yes, I have your notes.  I made notes.  Yes. \n \nJUDGE FINE:   All right.  Did you get a copy of your medical records, the \nones that you want into evidence; did you get those to Mr. Ryburn at least \nseven days before the hearing? \n\nSIMPSON – H203952 \n \n6 \n \nMS. SIMPSON:  I didn’t, Your Honor, and I’m gonna tell you why I didn’t. \n \nJUDGE FINE:  All right. \n \nMS. SIMPSON:   I had my original medical records when I was under the \ncare  of  Dr. Vargas.    I had my original medical  records  when  I  was  under \nthe  care  of  Dr.  Kirk  Reynolds.    I  needed  the  final  medical  records  that  I \ncould get from Dr. Gordon.  I had called his office, and they told me, when \nwe had this little ice storm here last week, that he had transcribed it, then \nhe  called  back  and  said, “Well,  we  don’t see  where  he’s  transcribed  it.”  \nThen   I   finally   got   a   notification—an   email   stating “Dr.   Gordon   has \nfinished—completed  the  medical  records.    We  will  send  them  over.”      I \nlooked back at my notes and that’s when I saw seven days.  I said, “Okay.  \nWait  a  minute.   I – I’ve  missed  my  timeline  here.   Let  me  notify—let  me \nsee  if  I  can  call  Mr.  Ryburn  and  see  if  I  can  fax ‘em  over  or  either  can  I \nhand–deliver  those  to  him.”    And  I  did.    I  faxed ‘em  to  him.    But  again—\nand  I  know  this  is  just—I  guess  maybe  that’s  why  I  need  an  attorney.   I \nwas thinking on the evidence of burden is what I was really trying to argue. \n \nJUDGE FINE:   Well, let me stop and go through a couple [of] things with \nyou  based  on  what  you  just  said.    With  regard  to  an  attorney, you’re \nsaying  that  you  need  an  attorney.    Do  you  recall  me,  at  the  beginning  of \nyour  prehearing  conference,  telling  you  that you  had  the  right  to  have  an \nattorney? \n \nMS. SIMPSON:  Right. \n \nJUDGE FINE:  And do you recall telling me that you  wanted to go ahead \nand proceed without a lawyer? \n \nMS.  SIMPSON:    Right.  And  I  asked  the  attorney  that  I  have,  that’s \nrepresenting me for the hospital, if he could help me with this, and he told \nme— \n \nJUDGE  FINE:    Well,  respectfully,  I  don’t  want  to  get  into  any  attorney-\nclient  privileged  communication  you  have  had  with  a  lawyer  in  a  matter.  \nBut what I did want to confirm is that you were told that you could have a \nlawyer,  and  that,  in  fact,  you  could  even  postpone  that  prehearing \nconference and try to get a lawyer.  Do you remember that? \n \nMS. SIMPSON:  Yes, I remember it. \n \n\nSIMPSON – H203952 \n \n7 \nJUDGE  FINE:    But  you  elected  to  go  ahead  and  say  you  wanted  to \nrepresent yourself.  Do you recall that? \n \nMS. SIMPSON:  I do recall it. \n \nJUDGE  FINE:    All  right.    And  with  regard  to—and  basically  what  I \nunderstand  your  testimony  is  on  your  records  and  what  I’m  hearing  from \nyou  is  that  you had  your  medical  records  except  for  the  records  from  Dr. \nGordon’s office. \n \nMS. SIMPSON:  Correct.  Yes, sir. \n \nJUDGE  FINE:    But  you  delayed  on  getting  them  to  Mr.  Ryburn  because \nyou didn’t have Dr. Gordon’s records. \n \nMS. SIMPSON:  Right. \n \nJUDGE  FINE:    Why  didn’t  you  go  ahead  and  give  Mr.  Ryburn,  at  least \nseven days before the hearing, the records you did have? \n \nMS. SIMPSON:   Because I wanted to have everything.  And  at that point \nwhen I—his office kept delayin’ and sayin’ that he hadn’t transcribed. \n \nJUDGE FINE:  “His office” being Dr. Gordon? \n \nMS.  SIMPSON:   Yes, Dr.  Gordon.   Then his—the  nurse  was  saying,  you \nknow, he hadn’t—I kept tryin’ to get those records. \n \n[T. 72-77] \n The determination of a witness’ credibility and how much weight to accord to that \nperson’s testimony are solely up to the Commission.  White v. Gregg Agricultural Ent., \n72 Ark. App. 309, 37 S.W.3d 649 (2001).  The Commission must sort through conflicting \nevidence and determine the true facts.  Id.  In so doing, the Commission is not required \nto  believe  the  testimony  of  the  claimant  or  any  other  witness,  but  may  accept  and \ntranslate into findings of fact only those portions of the testimony that it deems worthy of \nbelief.  Id. \n\nSIMPSON – H203952 \n \n8 \n I  credit  Claimant’s  testimony  as  outlined  above.   The  evidence  shows  that  even \nthough she was to “exchange” medical records–i.e., provide a copy to the other side—\nwithin  the  seven-day  period  prescribed  by  § 11-9-705(c)(2)(A)  and  the  Prehearing \nOr   der, she did not do so.  Instead, as Respondents’ Exhibit 1 shows, Claimant faxed the \nproffered  exhibit  to  Respondents’  counsel  on  February  10,  2023.    This  was  just  four \ndays before the hearing. \n Respondents  have  not  consented  to  a  waiver  of  the  violation  per  §  11-9-\n705(c)(4).  Nonetheless, pursuant to § 11-9-705(c)(3), I have the discretion to admit or \nexclude the evidence.  See Coleman v. Pro Transportation, Inc., 97 Ark. App. 338, 249 \nS.W.3d  149  (2007).    But  under  the  circumstances  presented  here,  I  cannot  properly \nadmit  the  evidence.    Claimant  acknowledged  being  aware  of  the  deadline.    Her \nexplanation for failing to meet it was her inability to obtain her medical records from one \nof  her  providers.    But  this  does  not  explain  why  she  did  not  mitigate  the  situation  by \ntendering  the  records  that  she  did  have  to  Respondents  by  February  7,  2023.    The \nunavailability of Gordon’s records did not justify her wholesale failure to meet the seven-\nday  deadline  with  regard  to  her  medical  records  exhibit.    Consequently,  Claimant’s \nProffered Exhibit 3 will not be admitted into evidence, and will not be considered.  See \nJobe  v.  St.  Vincent  North/Sherwood,  2005  AR  Wrk.  Comp.  LEXIS  206,  Claim  No. \nF105594  (Full  Commission  Opinion  filed  May  27,  2005), aff’d  sub  nom. St.  Vincent \nHealth Systems v. Jobe, No. CA 05-823 (Ark. Ct. App. Feb. 8, 2006)(unpublished). \n\nSIMPSON – H203952 \n \n9 \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness at the hearing. \n Along  with  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case  were  Claimant’s  Exhibit  1,  a  job  description  for  the  position  of \nTelecommunications Manager, consisting of five numbered pages; Claimant’s Exhibit 2, \na typewritten statement signed and dated May 17, 2022, by Donovan Kindle, consisting \nof  one  page;  and Respondents’  Exhibit  1, a  facsimile  cover  sheet  addressed  to \nRespondents’  counsel  from  Claimant  and  dated  February  10,  2023,  consisting  of  one \npage. \nAdjudication \n Claimant,  who  is  a  high  school  graduate  and  who  completed  three  years  of \ncollege,  testified  that  on  May  18, 2022,  she was  employed  by  Respondent St.  Vincent \nInfirmary  Medical  Center  (“St.  Vincent”)  as  the  Telecommunications Manager.    Her \naccount was that she fell twice at approximately 6:50 a.m.  that day after she parked in \nthe  St.  Vincent  employee  parking  lot  and  was  en  route  to  the  building  where  she \nworked: \nI  had  arrived.    That  morning  I  didn’t  stop  to  get  coffee  because  I  was \ngonna get coffee inside.  I wasn’t running late.  My bags, I always set them \nin  the  back  seat  because  it’s  kinda  like  an  incline  and  I  just  don’t  want \nthem  to fall  forward and then  stuff  is everywhere.    I  had  locked my  car—\nwell,  I  grabbed  my  bags  and  I  locked  my  car.    I  had  my  badge  where  I \ncould get it.  I was proceeding to walk, and when I got ready to walk out of \nthat  parking  lot  to  go  forward  into  the other parking  lot—when  I  walked,  I \nmade  a  step,  and  I  was  down  .  .  .  [r]ight  at  the  physician’s  gate  .  .  .  I \n\nSIMPSON – H203952 \n \n10 \ntripped in a hole . . . [w]ell, when I came—when I realized I was—I looked \nup and I fell, and I looked down and I was in the hole. \n \n[T. 24-25]  However, per Claimant, that was not her only fall of the morning: \nThat  was  the  first  time  I  fell.    I  kinda  set  [sic]  there  and  looked  around, \n‘cause I was embarrassed, and I proceeded to get up.  I had my purse—it \nwas  on  the  ground  and  I  remember  pushing  up  off  my  purse.    When  I \npushed  up  off  my  purse,  I  kinda  pulled  myself  together  I  proceeded  to \nwalk.  When I proceeded to walk, the—when I proceeded to walk—when I \nmade another four or  five, six, seven steps, that’s when I went down in a \nmajor  pothole.    My  leg  went  under  me.    My  purse—everything  went \neverywhere  and  I  was  down  .  .  .  [w]hen  I  fell  the  second  time,  I  couldn’t \nmove.  I—I tried to get up as I did the first time when I fell.  I remember I \nwas  in  pain  and  every  time  I  tried  to  get  up,  this  leg  [indicating]  just \nwouldn’t  allow  me.    The  right  ankle,  I  twisted  it  the  first  fall,  so  I’m  just \nthere. \n \n[T. 25-26, 29] \n A nursing supervisor came out on the grounds of the hospital to assess Claimant.  \nAfter  treating  personnel  were  able  to  get  her  up  and  into  a  wheelchair,  Claimant  was \ntaken to the emergency room there.  She was examined, and x-rays were taken.  Since \nthen,  she  has  seen four  different  physicians:    her  primary  care  physician,  Dr.  Eric \nJoseph, at CHI St. Vincent South Clinic; and Drs. Victor Vargas, Kirk Reynolds, and Eric \nGordon at OrthoArkansas.  These individuals treated both Claimant’s left ankle and right \nknee.    Vargas  had  her  undergo  MRIs  on  those  joints.    Reynolds,  in  turn,  evaluated \nthose MRIs and scheduled surgery on her knee.  After the surgery was delayed, Gordon \ntook over her case  and rescheduled  the  procedure for March 30, 2023—after the date \nof the hearing. \n\nSIMPSON – H203952 \n \n11 \nA. Whether Claimant sustained a compensable injury. \n Claimant has asserted that as a result of two falls in the parking lot of her place \nof employment on the morning of May 18, 2022, she sustained compensable injuries to \nher  left  ankle  and  right  knee.    Respondents  have  countered  that  she did  not  suffer a \nwork-related  injury,  alleging,  inter  alia,  that  (1)  any  injury  was  not  sustained  while \nClaimant was performing employment services; and (2) there were no objective findings \nof an injury. \n In  Ark.  Code  Ann.  §  11-9-102(4)(A)(i)  (Repl.  2012),  “compensable  injury”  is \ndefined as follows: \n(i)  An  accidental  injury  causing  internal  or  external  physical  harm  to  the \nbody  .  .  .  arising  out  of  and  in  the  course  of  employment  and  which \nrequires  medical  services  or  results  in  disability  or  death.    An  injury  is \n“accidental” only if it is caused by a specific incident and is identifiable by \ntime and place of occurrence[.] \n \nA compensable injury must be established by medical evidence supported by objective \nfindings.  Id. § 11-9-102(4)(D).  “Objective findings” are those findings that cannot come \nunder the voluntary control of the patient.  Id. § 11-9-102(16)(A)(i).  The element “arising \nout  of  .  .  .  [the]  employment”  relates  to  the  causal  connection  between  the  claimant’s \ninjury  and  his  or  her  employment.   City  of  El  Dorado  v.  Sartor,  21  Ark.  App.  143,  729 \nS.W.2d  430  (1987).    An  injury  arises  out  of  a  claimant’s  employment  “when  a  causal \nconnection between work conditions and the injury is apparent to the rational mind.”  Id.  \nIf  the  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements  for  establishing  compensability,  compensation  must  be  denied.  Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  See § 11-9-\n\nSIMPSON – H203952 \n \n12 \n102(4)(E)(i).    This  standard  means  the  evidence  having  greater  weight  or  convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n At the outset, I must point out that the evidentiary record before me is devoid of \nany medical evidence, supported by objective findings, that Claimant sustained an injury \nof any sort.  Thus, she has not proven that she suffered a compensable injury. \nB. Remaining issues. \n Claimant  has  also  argued  that  she  is  entitled  to  reasonable  and  necessary \nmedical  treatment  and  to  temporary  total  disability  benefits.    But,  since  she  has  not \nestablished that she sustained a compensable injury, these issues are moot and will not \nbe addressed. \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth  above, \nthis claim for initial benefits is hereby denied and dismissed. \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":20282,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H203952 SHARON SIMPSON, EMPLOYEE CLAIMANT ST. VINCENT INFIRMARY MED. CTR., EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NO. AMER., CARRIER RESPONDENT OPINION FILED MARCH 29, 2023 Hearing before Administrative Law Judge O. Milton Fine II on February 14, 2023, in ...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["ankle","knee","back"],"fetchedAt":"2026-05-19T23:09:57.325Z"},{"id":"alj-G903144-2023-03-28","awccNumber":"G903144","decisionDate":"2023-03-28","decisionYear":2023,"opinionType":"alj","claimantName":"Preston Allen","employerName":"Staffmark Investments, LLC","title":"ALLEN VS. STAFFMARK INVESTMENTS, LLC AWCC# G903144MARCH 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//ALLEN_PRESTON_G903144_20230328.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ALLEN_PRESTON_G903144_20230328.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nWCC NO. G903144 \n \nPRESTON ALLEN, EMPLOYEE CLAIMANT \n \nSTAFFMARK INVESTMENTS, LLC, \n EMPLOYER RESPONDENT NO. 1 \n \nACE AMERICAN INS. CO., \n CARRIER RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND, \n CARRIER RESPONDENT NO. 2 \n \n \n \nOPINION FILED MARCH 28, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch on March 10,  2023,  in  Little \nRock, Pulaski County, Arkansas. \n \nClaimant Preston Allen is representing himself, pro se. \n \nRespondent No. 1 was represented by Ms. Melissa Wood, Attorney at Law, Little Rock, \nArkansas. \n \nRespondent No.  2 is  represented  by  Ms.  Christy  L.  King,  Attorney at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A  prehearing  telephone  conference  was  conducted  on  January  17,  2023,  in  the \nabove-styled  case.  Claimant  was pro  se.    Respondent  No.  1  was  represented  by  Ms. \nMelissa  Wood,  Attorney at  Law, of  Little  Rock,  Arkansas.   Respondent  No.  2  was \nrepresented  by  Ms.  Christy  L.  King,  Attorney at  Law, of  Little  Rock,  Arkansas.  \nPrehearing information filings have previously been submitted by the parties. \n Claimant was advised that he has the right to an attorney, that the law limits what \nfee  an  attorney  may  charge  for  representing  a  claimant,  and  that  he  had  the  right  to \n\nALLEN – G903144 \n \n2 \npostpone the conference to obtain representation. Being fully advised of his rights and \nresponsibilities, Claimant nonetheless elected to represent himself.  \nThe parties have agreed to the following stipulation: \n1. The previous decisions in this matter are binding on this proceeding under \nthe Law of the Case Doctrine. \n By  agreement  of  the  parties,  the  issues  to  be  presented  for  determination  are \nlimited to the following: \n1. Whether   Claimant   is   entitled   to   additional   medical   treatment   of   his \nstipulated compensable right arm, right leg, and lower back injuries. \n2. Whether Claimant sustained a compensable injury to his cervical spine by \nspecific incident. \n3. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment of his alleged cervical spine injury. \n4. Whether  Claimant  is  entitled  to  an  impairment  rating  and  permanent \npartial  disability  benefits  in  connection  with  his  alleged  cervical  spine \ninjury. \n5. Whether  Claimant  is  entitled  to  benefits  under  Ark.  Code  Ann.  § 11-9-\n505(a) (Repl. 2012). \n6. Whether Claimant is permanently and totally disabled or, in the alternative, \nentitled to wage loss disability benefits. \nAll  other  issues  have  been  reserved.  Two  dispositive  issues  were  raised  during \nthe  hearing.  The  first was  whether  the  issues  raised  in  this  hearing  were  precluded by \n\nALLEN – G903144 \n \n3 \nthe Doctrine of Res Judicata and the Law of the Case Doctrine. The second dispositive \nissue is whether the issues are precluded by the statute of limitations. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the record,  including  medical  reports,  documents,  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity to  hear  the \ntestimony of the witnesses and to observe their demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. Claimant’s   first   issue,   whether   he   is   entitled   to   additional   medical \ntreatment  of  his  stipulated  compensable  right  arm,  right  leg,  and  lower \nback  injuries,  have  been  fully,  fairly,  and  completely  litigated  under  a \nprevious claim filed by Claimant. Therefore, I find that Res Judicata/Law of \nthe Case Doctrine, applies to this issue and it will not be further addressed \nin this opinion since those issues were previously resolved.  \n3.  The Commission further finds that issues 2-6 are barred by the statute of \nlimitations.  As  a  result,  all  reserved  issues  are  likewise  barred  by  the \nstatute of limitations and will not be addressed in this opinion. This case is \nhereby dismissed. \n \n \n\nALLEN – G903144 \n \n4 \nRES JUDICATA/LAW OF THE CASE DOCTRINE \nFacts of Case. \n The  date  of  injury  for  this  claim  is  May  8,  2019.  An  AR-2  form  was  filed \nwith the Commission on May 16, 2019, accepting strains/contusion  to lower back, right \nshoulder, right arm, and the right leg by Respondent No. 1. An AR-C was filed  for this \nclaim  on  May  28, 2019,  by  the  claimant’s  previous attorney,  stating  that  “claimant  was \nmoving a sheet of metal when he slipped on fluids on the floor causing him to fall and \nthe metal hit his back.  Claimant sustained injuries to his back, right shoulder, right leg, \nand  other  whole  body.”  All  boxes  except  for  the  Other  box were  marked  in  both  initial \nand additional benefits. The Claimant’s attorney was granted an order to withdraw from \nthe claim on December 6, 2019. \nA previous hearing was held in this claim on August 19, 2020. The claimant was \nnot  represented  by  an  attorney  and was  therefore  Pro  se.  In  Perry  v.  State,  287  Ark. \n384,  699  S.W.2d  739  (1985),  the court  noted  that  “[W]e  hold pro  se  litigants  to  the \nsame  requirement  to  which  we  hold  attorneys.  Weston  v.  State,  265  Ark.  58,  576 \nS.W.2d  705  (1979).”   According  to  the  Administrative  Law  Judge  Opinion  filed  on \nNovember 10, 2020, the issues were: \n1.  Whether the Claimant is entitled to additional medical treatment and payment for \nunpaid medical bills. \n2.  Whether the Claimant has reached maximum medical improvement. \n3.  Whether the Claimant is entitled to temporary total disability benefits. \n4.  Whether the Claimant is entitled to permanent partial disability benefits. \n\nALLEN – G903144 \n \n5 \n \n5. All other issues, including Claimant’s right to permanent and total disability \nbenefits are reserved. \nThe Administrative Law Judge made the following Findings of Fact and Conclusions of \nLaw: \n1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n2. The   employer/employee/carrier   relationship   existed   on   May   8,   2019,   when \nClaimant sustained compensable injuries to his lower back, right arm, and right leg. \n3. The  Claimant  earned  an  average  weekly  wage  of  $645.35,  which  entitles  him  to \nweekly  compensation  benefits  of  $430.00,  for  temporary  total  and  $323.00  for \npermanent partial disability. \n4. The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence that  he  is \nentitled  to  additional  medical  treatment  and  payment  for  unpaid  medical bills \nincurred by the Claimant at Great River Medical Center in October of 2019. \n5. The   preponderance  of   the  evidence   establishes   that   the   claimant   reached \nmaximum medical improvement on August 19, 2019. \n6. The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that  he  is \nentitled to additional temporary total disability benefits after August 19, 2019. \n7. The  claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence that  he  is \nentitled to permanent partial disability benefits. \n8. All other issues are reserved. \n \n\nALLEN – G903144 \n \n6 \nClaimant  appealed  this  decision  to  the  Full  Commission  that  affirmed the \nAdministrative  Law  Judges’  decision. Claimant  next  appealed  his  decision  to  the \nArkansas Court of Appeals. The Arkansas Court of Appeals affirmed the Commission’s \ndecision  for  claims  relating to  Claimants  injuries  to  his  lower  back,  right  arm,  and  right \nleg. Allen v. Staffmark Invs., 2022 Ark. App. 252, 646 S.W.3d 646 (2022).  It should be \nnoted  that  Claimant’s  cervical  spine  injury  occurred on  the  same  date  as  his  other \ninjuries,  May  8,  2020.  The  Claimant  has  stated,  in  his  March  10,  2023,  full-hearing \ntestimony, that his cervical spine injury occurred on the same date as his other injuries \nin  his  previous  case  but  was  not  specifically  litigated.  However,  Claimant’s  AR-C,  filed \non May 28,  2019,  does  not  specifically  mention  a  neck  or  cervical  spine  injury.  The \nclaimant’s  first  specific  request  for  benefits  for  his  cervical  spine  were  made  at  a \nprehearing telephone conference held on December 19, 2022. \nThis Court has requested briefs from both sides on March 10, 2023, on the issue \nof when was the last payment of benefits made by the Respondent regarding the May 8, \n2019,  injury.  Those  briefs  have  been  received,  blue-backed  and  made  a  part  of  the \nofficial record for this case. \nDiscussion. \nClaimant  and  Respondents  have  both  stipulated that  previous  decisions  in  this \nmatter are binding on this proceeding under the Law of the Case Doctrine/Res Judicata.  \nThis is a threshold issue. \n The  doctrine  of res  judicata  applies  to  decisions  of  the  Commission.   Harvest \nFoods  v.  Washam,  52  Ark.  App.  72,  914  S.W.2d  776  (1996).    In Gibbs  v.  Moffatt \n\nALLEN – G903144 \n \n7 \nLogging,   2007   AWCC   109,   Claim   No.   F403435   (Full   Commission   Opinion   filed \nSeptember 12, 2007), the Commission set forth the applicable law concerning this: \nThe  purpose  of  the res  judicata  doctrine  is  to  put  an  end  to  litigation  by \npreventing  a  party  who  had  one  fair  trial  on  a  matter  from  relitigating the \nmatter a second time.  Cox v. Keahey, 84 Ark. App. 121, 133 S.W.3d 430 \n(2003),  citing Brandon  v.  Arkansas  W.  Gas  Co.,  76  Ark.  App.  201,  61 \nS.W.3d  193  (2001).   Res  judicata  applies  where  there  has  been  a  final \nadjudication on the merits of the issue by a court of competent jurisdiction \non  all  matters  litigated  and  those  matters  necessarily  within  the  issue \nwhich might have been litigated.  Beliew v. Stuttgart Rice Mill, 64 Ark. App. \n334, 987 S.W.2d 281 (1998).  The key question regarding the application \nof  res  judicata  is  whether  the  party  against  whom  the  earlier  decision  is \nbeing  asserted  had  a  full  and  fair  opportunity  to  litigate  the  issue  in \nquestion.  Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993). \n \nIn turn, the Arkansas Court of Appeals in Thurman v. Clarke Industries, Inc., 45 \nArk.  App.  87,  872  S.W.2d  418  (1994)  explained  the  Law  of  the  Case  Doctrine  as \nfollows: \nMoreover,  matters  decided  on  a  prior  appeal  to  this  court  are  the  law  of \nthe case and govern our actions on a subsequent appeal to the extent that \nwe  are  bound  by  them  even  if  we  were  inclined  at  the  latter  time  to  say \nthat we had been wrong initially. \n \nConsidering   these   standards,   Claimant’s   entitlement   to   additional   medical \ntreatment  for  his  stipulated  compensable  right  arm,  right  leg,  right  shoulder,  and  lower \nback injuries that occurred on May 8, 2019, were litigated before Judge Barbara Webb, \nwho  found  on  November  20,  2020,  that  Claimant  failed  to  prove  entitlement  to  such \nbenefits.  This  finding  was  affirmed  and  adopted  by  the  Full  Commission,  and  then \nappealed  to  the  Arkansas  Court  of  Appeals.  The  Arkansas  Court  of  Appeals  affirmed \nthe Commission’s decision. Allen v Staffmark Invs, 2022 Ark. App. 252, 2022 Ark. App. \nLEXIS 226 (2022). The Doctrine of Law of the Case prohibits a court from reconsidering \n\nALLEN – G903144 \n \n8 \nissues of law and fact that have already been decided on appeal. Cadillac Cowboy, Inc. \nv.  Jackson,  347  Ark.  963,  69  S.W.3d  383  (2002).  The  key  question  regarding  the \napplication  of Res  Judicata  is  whether  the  party  against  whom  the  earlier  decision  is \nbeing asserted had a full and fair opportunity to litigate the issues in question. Cater v. \nCater,  311  Ark.  627,  846  S.W.2d  173  (1993);  Pine  Bluff  Warehouse  v.  Berry,  51  Ark. \nApp. 139, 912 S.W.2d 11 (1995). Thus, I find that  Claimant did have an opportunity to \nlitigate  Issue  1  fully  and  fairly before  the  Administrative  Law  Judge  and  the  Full \nCommission during his previous claim. The Claimant has not presented any evidence to \nthe  contrary.  The  Arkansas  Court  of  Appeals  reviewed  the  decision  of  the  Full \nCommission and did not note any irregularities with Claimant’s opportunity to litigate his \ncase fully and fairly. I further find that Issue 1 has been resolved by previous final court \nruling on the merits and will not be addressed in this opinion. \nSTATUTE OF LIMITATIONS  \n Standards.  Considering the facts previously stated in this opinion, the evidence \nbefore me is clear, and I find the cervical spine injury and the issues with it were not a \npart of Claimant’s original claim.  Under Ark. Code Ann. §11-9-702(b)(1) (Repl. 2012): \nIn  cases  in  which  any  compensation,  including  disability  or  medical,  has \nbeen  paid  on  account  of  injury,  a  claim  for  additional  compensation  shall \nbe  barred  unless  filed  with  the  commission  within  one  (1)  year  from  the \ndate of the last payment of compensation or two (2) years from the date of \nthe injury, whichever is greater. \n \n The burden rests on Claimant to prove that his claim was timely filed.  Stewart v. \nArk.  Glass  Container, 2010  Ark.  198, 366  S.W.3d  358; Kent  v.  Single  Source  Transp., \n103  Ark.  App.  151,  287  S.W.3d  619  (2008).    Under  Ark.  Code  Ann.  § 11-9-705(a)(3) \n\nALLEN – G903144 \n \n9 \n(Repl.  2012),  he  must  prove  this  by  a  preponderance  of  the  evidence. The  standard \n“preponderance   of   the   evidence”   means   the   evidence   having   greater   weight   or \nconvincing force.  Barre v. Hoffman, 2009 Ark.  373, 326 S.W.3d 415; Smith v. Magnet \nCove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n Discussion.  As previously stated, regarding the original claim, the Respondents \ninitially accepted  Claimant’s  injury  as  compensable  and  paid  benefits  to  the  Claimant. \nThe  last  payment  of  benefits  was  on  August  19,  2019.  The  statute  of  limitations  for \nadditional  compensation  began to  run  one  year  from  the  date  of  the  last  benefit \npayment or two years from the date of injury, whichever is greater. Ark. Code Ann. §11-\n9-702(b)(1) (Repl. 2012); See also, Wynne v. Liberty Trailer and Death and Permanent \nTotal Disability Trust Fund, 2022 Ark. 65, 641 S.W.3d 621 (2022)(holding the statute of \nlimitations  on  a  request  for  additional  benefits  commences  when  the  last  payment, \nwhether for disability or medical benefits, was made). This means the final day to bring \nforth Claimant’s cervical spine claim would be May 8, 2021.  \nThe  Court  finds,  based  on  the  evidence,  the  last benefit  payment  for  Claimant \nwas  made  on  August  19,  2019.  Since  Claimant  has  one  year  from  the  last  medical \nbenefit  payment  or  two  years  from  the  date  of  injury,  whichever  is  greater,  to  file  for \nadditional medical benefits, the Court finds the Claimant had until May 8, 2021, the later \ndate, to file his claim for additional benefits with the Commission. The Court further finds \nthe  Claimant  did  not  specifically  request  benefits  for  his  alleged  cervical  spine  injury \nuntil December 19, 2022, well after the statute of limitations have run.  \n\nALLEN – G903144 \n \n10 \nThough it should be noted, the Claimant feels the statement contained in his AR-\nC,  filed  with  the  Commission  on  May  28,  2019,  tolls  the  statute  of  limitations  for  his \ncervical spine injury. The Claimant believes that his cervical spine injury falls under the \nstatement  in  his AR-C that  reads, “and other  whole  body.”  I  find  this  phrase  in \nClaimant’s  AR-C to  be  generic  and  insufficient  to  toll  the  statute  of  limitations  and \npreserve  the  cervical  spine  issue. See  Walmart  Assocs  v.  Armstrong,  2017  Ark.  App. \n175,  516  S.W.3d  310  (2017)(finding  Claimant’s  generic  form AR-C,  that  contained  no \nspecific  injury  and  had  all  benefit  boxes  checked,  was  the  same  as  no  filing  and  was \ninsufficient to toll the statute of limitations).  \n Only  one  Form  AR-C  has  been  filed  in  connection  with  this  matter.    That  is  the \nmeans for filing a “formal claim.”  See Yearwood v. Wal-Mart Stores, Inc., 2003 AR Wrk. \nComp. LEXIS 739, Claim No. F201311 (Full Commission Opinion filed June 17, 2003).  \nSee  also Sinclair  v.  Magnolia  Hospital,  1998  AR Wrk.  Comp.  LEXIS  786,  Claim  No. \nE703502 (Full Commission Opinion filed December 22, 1998)(a claim is “typically” filed \nvia  a  Form  AR-C). I  find the  formal  claim  for  this  matter  was  not  filed  with  the \nCommission  by  May  8,  2021,  rather  Claimant  brought  it  to  the  attention  of  both  the \nCommission  and  Respondents  December  19,  2022,  during  the  prehearing  telephone \nconference, more than a year and a half after the statute of limitations deadline. I further \nfind  that  Claimant  failed  to  bring  forth  his  cervical  spine  claim  by  the  May  8,  2021,  the \nstatute  of  limitations  deadline,  thus  forming my  basis  for finding the  remainder  of \nClaimant’s  claim,  Issues  2  through  6,  and  all  other  reserved  issues,  are barred  by  the \nstatute of limitations. \n\nALLEN – G903144 \n \n11 \n \nCONCLUSION \n \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth  above, \nthis claim is hereby denied and dismissed. \nIT IS SO ORDERED. \n \n \n \n \n       ________________________________ \n       Honorable Steven Porch \n       Administrative Law Judge","textLength":17832,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G903144 PRESTON ALLEN, EMPLOYEE CLAIMANT STAFFMARK INVESTMENTS, LLC, EMPLOYER RESPONDENT NO. 1 ACE AMERICAN INS. CO., CARRIER RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND, CARRIER RESPONDENT NO. 2 OPINION FILED MARCH 28, 2023 Hearing before ...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["back","cervical","shoulder","neck"],"fetchedAt":"2026-05-19T23:09:53.189Z"},{"id":"alj-H207016-2023-03-28","awccNumber":"H207016","decisionDate":"2023-03-28","decisionYear":2023,"opinionType":"alj","claimantName":"Rick Hampton","employerName":"Miller County Judge","title":"HAMPTON VS. MILLER COUNTY JUDGE AWCC# H207016 MARCH 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HAMPTON_RICK_H207016_20230328.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HAMPTON_RICK_H207016_20230328.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H207016 \n \nRICK D. HAMPTON, \nEMPLOYEE                                                                                                              CLAIMANT \n \nMILLER COUNTY JUDGE, \nEMPLOYER                                                                                                         RESPONDENT  \n \nASS’N OF ARKANSAS COUNTIES WORKERS’ \nCOMPENSATION TRUST/ \nAAC RISK MG’T SERVICES, INC. \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER FILED MARCH 28, 2023 \nHOLDING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE IN \nABEYANCE FOR 30 DAYS \n \nHearing  conducted  on  Friday,  March  28,  2023,  before  the  Arkansas  Workers’  Compensation \nCommission  (the  Commission),  Administrative  Law  Judge  (ALJ)  Mike  Pickens,  in  Texarkana, \nMiller County, Arkansas. \n \nThe claimant, Mr. Rick D. Hampton, pro se, of Fort Smith, Sebastian County, Arkansas, appeared \nin person at the hearing.  \n \nThe respondents were represented by the Honorable Jason M. Ryburn, Ryburn Law Firm, Little \nRock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A hearing  was  conducted  on  Friday,  March  24,  2023,  to  determine  whether  this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2022) \nLexis  Replacement)  and  Commission  Rule  099.13  (2022  Lexis  Repl.).  The  respondents  filed  a \nmotion to dismiss with the Commission on February 1, 2023, requesting this claim be dismissed \nwithout prejudice for lack of prosecution. \n\nRick D. Hampton, AWCC No. H207016 \n \n2 \n \n           In accordance with applicable Arkansas law, the claimant was mailed due and proper legal \nnotice of both the respondents’ motion to dismiss as well as a copy of the hearing notice at his \ncurrent addresses of record via the United States Postal Service (USPS), First Class Certified Mail,  \nand he appeared in person, pro se, at the subject hearing. The record herein consists of the hearing \ntranscript  and  any  and  all  exhibits  contained  therein  and  attached  thereto,  as  well  as  the \nCommission’s entire file in this matter by reference. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. The \nclaimant and the respondents’ attorney took the opportunity to visit in person before the hearing. \nThe parties agreed on the record that it appears the only two (2) outstanding issues to be resolved \nare the payment of some outstanding mileage expenses, and a medical bill(s).  \n           Consequently, both  the  claimant  and  the  respondents’  attorney  agreed  that,  once  these \noutstanding  issues  are  resolved, the  claim  may  be  dismissed  pursuant  to  the  parties’  mutual \nagreement. The parties requested an additional 30 days, or until Tuesday, April 25, 2023, to resolve \nthese issues. The parties will advise the ALJ on or before this date as to whether the issues have \nbeen  resolved.  If  they  have  been  resolved  as  expected,  the  ALJ  will  draft  and  enter  an  opinion \norder of dismissal without prejudice, without the necessity of the respondents’ having to draft and \nfile  another  motion,  and  without  the  necessity  of  the  ALJ  conducting  another  hearing  on  the \nrespondents’ MTD. If the issues have not been resolved, the parties may request additional time to \nresolve them, if needed, or may ask for any and all other appropriate Commission action or relief \nas may be appropriate.  \n\nRick D. Hampton, AWCC No. H207016 \n \n3 \n \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, and as I advised the parties on the record at the hearing, I hereby make \nthe following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. The ALJ will hold in abeyance a decision on the respondents’ subject motion to \n                  dismiss without prejudice for a period of 30 days, or until Tuesday, April 25, 2023. \n \n      3.         The parties have 30 days from the hearing date, or until Tuesday, April 25, 2023, \n                  to obtain any and all additional information they require and to resolve \n                  the aforementioned issues.  \n \n      4.         The parties shall advise the ALJ on or before Tuesday, April 25, 2023, whether the \n                  subject issues have been resolved. If the parties have in fact resolved the \n                  outstanding issues the ALJ shall grant the respondents’ motion to dismiss filed \n                  February 1, 2023, without prejudice pursuant to the parties’ mutual agreement on \n                  the hearing record without the necessity of either the respondents filing another \n                  motion, and without the necessity of the Commission holding another hearing on \n                  the motion.  \n \n      5.        If the parties have not resolved the issues by the agreed deadline they may request \n                 additional time to do so, or may request any and all other appropriate Commission \n                 action and/or relief as may be deemed necessary under the circumstances.  \n \n     If they have not already done so, the respondents shall pay the court reporter’s invoice within \n \n twenty (20) days of the filing of this opinion and order. \n \n     IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Mike Pickens \n                                                                                               Administrative Law Judge \n \n \n \n \nMP/mp \n\nRick D. Hampton, AWCC No. H207016 \n \n4","textLength":6090,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H207016 RICK D. HAMPTON, EMPLOYEE CLAIMANT MILLER COUNTY JUDGE, EMPLOYER RESPONDENT ASS’N OF ARKANSAS COUNTIES WORKERS’ COMPENSATION TRUST/ AAC RISK MG’T SERVICES, INC. INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED MARCH 28, 2023 HOLDING RESPONDE...","outcome":"dismissed","outcomeKeywords":["dismissed:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:09:55.255Z"},{"id":"full_commission-G803817-2023-03-24","awccNumber":"G803817","decisionDate":"2023-03-24","decisionYear":2023,"opinionType":"full_commission","claimantName":"Jacqueline Freeman","employerName":"Arkansas Department Of Corrections","title":"FREEMAN VS. ARKANSAS DEPARTMENT OF CORRECTIONS AWCC# G803817 MARCH 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Freeman_Jacqueline_G803817_20230324.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Freeman_Jacqueline_G803817_20230324.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G803817 \n \nJACQUELINE D. FREEMAN, \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF CORRECTIONS,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2 \n \n  \n      \nOPINION FILED MARCH 24, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE JIM R. BURTON, Attorney at \nLaw, Jonesboro, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE CHARLES H. \nMcLEMORE, JR., Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nSeptember 7, 2022.  The administrative law judge found that the claimant \nfailed to prove she was entitled to additional medical treatment, and that the \nclaimant failed to prove she was entitled to additional temporary total \ndisability benefits.  After reviewing the entire record de novo, the Full \nCommission affirms the administrative law judge’s opinion.     \n\nFREEMAN - G803817  2\n  \n \n \nI. HISTORY \n The record indicates that Jacqueline Freeman, now age 52, \nunderwent a lumbar decompression, discectomy, and fusion in December \n2010.  The post-operative diagnosis was “Spinal stenosis, degenerative \nspondylolisthesis of L4 and L5 with disk herniation.”  The claimant \nunderwent additional lumbar surgery in October 2015.  The post-operative \ndiagnosis was “Recurrent stenosis at L4-5, disk herniation at L5-S1 with \nradiculopathy, evidence of pseudoarthrosis at L4-5.”  The claimant testified \nthat she had been assigned permanent work restrictions as a result of her \nsurgeries in 2010 and 2015.      \n The record indicates that the claimant became employed with the \nrespondents, Arkansas Department of Corrections, on October 16, 2017.  \nThe claimant testified that her job title was Administrative Specialist and \nthat she worked in the respondent-employer’s file room.  The claimant \ntestified that she was eventually transferred to the respondent-employer’s \nmail room.  The claimant testified that her work included transporting mail to \nthe United States Postal Service for delivery as well as picking up mail for \ndistribution to inmates at the Department of Corrections.      \n The record contains two Disciplinary Actions dated May 14, 2018.  \nThe claimant was charged with “Failure to adhere to work hours” and \n“Unsatisfactory work performance.”  The claimant received an oral \n\nFREEMAN - G803817  3\n  \n \n \nreprimand.  The claimant was also charged with “Discourteous treatment of \nothers” and “Insolence to supervisor or persons of higher rank.”  The \nclaimant received a written remand for the latter violations.   \n Deputy Warden Steven Ricketts corresponded with the claimant on \nMay 28, 2018 and informed the claimant in part, “Ms. Freeman, you are still \nwithin your probationary period and have developed a pattern of the \nbehavior listed above.  You often use the excuse of things that you are \ngoing through in your personal life as the cause of the problems here at \nwork.  Issues that you have been involved in has been discussed with you \nseveral times and have progressed to written documentation of these \ndiscussions.  Following the progressive discipline procedures, I am \nrequesting that you be seen by the Grimes Unit Employee Review \nCommittee for determination of appropriate disciplinary action.  You will be \nnotified of a date and time to appear before the review board.”   \nThe parties stipulated that the employee-employer-carrier \nrelationship existed on May 29, 2018.  The claimant testified on direct \nexamination: \nQ.  And if you will, thinking back to May 29\nth\n of 2018, what \nhappened – what happened to make that day memorable to \nyou? \nA.  Well, what happened was Andrew was supposed to come \nto work.  He didn’t show up.  I was actually off that day.  I \nwasn’t even supposed to come in.  The acting supervisor was \nthere because the other supervisor was off work on leave.  \nThe director was there.  I was supposed – everybody was \n\nFREEMAN - G803817  4\n  \n \n \nsupposed to get a chance to go talk to her, but I didn’t get a \nchance to because the acting supervisor told me she need me \nto go do the mail.  And I advised her I did not have my back \nbrace, and I was by myself, and I needed help doin’ it.  So she \ndidn’t help me.  So I went without a back brace and I had to \ngo get the mail. \nQ.  Okay.  Okay.  And was that when your back started hurtin’ \nagain? \nA.  Yes.  Yes.  Yes.  The mailroom is what really caused my \nback to really hurt me.   \n \n The parties stipulated that the claimant sustained “a compensable \nlumbar injury” on May 29, 2018.  According to the record, Dr. Matthew P. \nJackson saw the claimant on June 7, 2018: \nShe is a clerical worker at Grimes Unit, Arkansas Dept. of \nCorrections.  She was working at the mail room 5/29 and had \nto go to the post office and pick up the mail which was over \n50-60 pounds.  She says she has chronic back problems and \nwas supposed to have a restriction of 15-20 pounds lifting at \nwork.  She is also is able to sit on a donut pillow and use a \nknee sleeve while at work.  She says she hurt her back and \nleg lifting the mail and they still made her do it the next day \nand she hurt it more.  She goes to pain management with Dr. \nQureshi in Little Rock and takes gabapentin and oxycodone.  \nShe had a lumbar laminectomy in 2010 and discectomy in \n2015.  Since her injury, she has worse pain in the right low \nback and both thighs.  Her pain is severe and constant.  She \nis not able to do the lifting required in the mail room due to her \npain. \n \n Dr. Jackson assessed “1.  Strain of lumbar region, initial encounter.  \nRecommend she be off work until she improves.  Recheck on Monday.  \nHopefully she can return to her previous job without the heavy lifting.  2.  \nBilateral thigh pain.  3.  Muscle spasm.”   \n\nFREEMAN - G803817  5\n  \n \n \n Dr. Jackson noted on June 11, 2018, “She is here to follow up on \nback injury.  She complains of severe constant pain in the right low back, \nradiating to both legs since her injury at work.  On 5/29 and 5/30 she states \nshe lifted 50-60 pound sacks of mail multiple times, and that is when her \npain started.  She is unable to even sit for very long due to the severe pain.”  \nDr. Jackson assessed “1.  Strain of lumbar region, subsequent encounter.  \n2.  Bilateral thigh pain.  3.  Muscle spasm.  4.  Acute right-sided low back \npain, with sciatica presence unspecified.  She has severe pain on top of \nchronic problems.  She is not better with observation.  Refer for MRI and \nneurosurgical eval....Off work.  Recheck 4 weeks.”  \n The respondents terminated the claimant’s employment effective \nJune 12, 2018.  The claimant was discharged as a result of alleged \nviolations which included “a.  Loitering, visiting, excessive personal use of \nthe telephone” and “n.  Conduct unbecoming a public employee.”      \n An MRI of the claimant’s lumbar spine was taken on June 19, 2018 \nwith the following impression: \n1.  Interval right laminotomy at L4-5 when compared to \n07/26/2007, with bilateral pedicle screws at L5 and right \npedicle screw at L4. \n2.  Grade I spondylolisthesis of L4 on L5 with a broad-based \npseudoprotrusion causing severe central canal stenosis. \n3.  Broad-based right posterolateral intraforaminal disc \nprotrusion at L5-S1 with facet arthropathy causing severe \nright foraminal stenosis.   \n \nDr. Justin Seale provided an IME on July 16, 2018: \n\nFREEMAN - G803817  6\n  \n \n \nMiss Freeman is a 47-year-old female with chronic history low \nback issues ongoing since a work-related injury in California in \n1993. \nShe is here today to be evaluated after sustaining a work \nrelated lifting injury on 5/29/18.  After that time she developed \nsevere right buttock and leg pain.  The pain is burning.  The \npain is progressive worsening.  Rest does help.  Bending and \nsquatting [makes] the pain worse.   \nShe has had numerous injections over the years.  She has \nrecently been undergoing left sided low back injections.  She \nreports having a recent right-sided injection but details of this \nare unknown.... \nPast medical history includes substantial history of lumbar \nissues.  She has a history of 2 prior surgeries 1 and 2010 and \nin 2016 by Dr. Shaheem (sic).  I reviewed clinic notes back till \n2016 and found no evidence of right buttock and leg pain but \nit had resolved until the last 2 years.  I could find no evidence \nto contradict this in her medical history.... \nI spent over one hour with the patient today reviewing her CTs \nand MRIs.  She was quite confused due to the fact that I \nfound no objective finding of injury.  She was also not aware \nof the continued severe stenosis at L4 5 with large calcified \ndisc protrusion or [could not] remember it.   \nI discussed the fact that she had no objective findings of injury \nbut she concurred that she had no pre-existing history of right \nleg pain leading up to the injury.  Therefore the pain did not \npreexist her injury.  Therefore it is within a certain degree of \nmedical certainty that at least 51% of the patient’s current \nsymptoms are directly related to their work injury.  If I was \nshown proof of existing right leg pain over the past 2 years, \nthis opinion [would] change.   \nConcerning treatment recommendations, I recommend a right \nL5-S1 transforaminal injection.... \n \n Dr. Seale assessed “1.  Severe stenosis, due to calcified disc \nprotrusion, L4 5 with right lower extremity radiculopathy.  2.  Right L5-S1 \nparacentral and foraminal disc protrusion, with right lower extremity.  3.  \n\nFREEMAN - G803817  7\n  \n \n \nAggravation of the above pre existing conditions.  4.  Status post L4-5 \nunilateral instrumented fusion, Dr. Shaheem (sic).”   \n Dr. Seale noted on July 16, 2018, “Jacqueline Freeman is currently \nunder my medical care and was seen in my office today.  Please excuse \nJacqueline.  She may return to work.  Restrictions are as follows:  No \nbending, lifting over 20lbs, no twisiting (sic), no sitting/standing greater than \n20 minutes.”  Dr. Seale noted in part on August 20, 2018, “Her recent \ninjection did not help....We will get her repeat right L5-S1 transforaminal \ninjection.”   \n Dr. Seale reported on November 26, 2018: \n  She had her third and final injection.   \nBriefly discuss surgery again which would be an L4 S1 fusion.  \nPatient does not want to have surgery at this point. \nThe patient is at maximum medical improvement from a \nsurgical standpoint but may continue pain management with \nDr. Qureshi.   \nThe patient’s impairment rating will be a 0% because no \nobjective findings of injury.  The prior disc protrusion was \ncalcified and pre existing.   \nI’m releasing the patient from my medical care.   \nI will see the patient back only as needed.   \nThe patient states they are unable to return back to work due \nto their pain.  My recommendation is for a functional capacity \nexam.  If the patient has a valid functional capacity exam, then \n[she] may return back to work per the defined restrictions of \nthat the valid functional capacity exam.  If the functional \ncapacity exam is invalid, the patient may return back to work \nfull duty without restrictions. \nI will continue the patient’s work restrictions of no bending, \ntwisting or lifting over 20 pounds until the results of [her] \nfunctional capacity exam are available.   \n\nFREEMAN - G803817  8\n  \n \n \nThere is no need for the patient to follow up after the \nfunctional capacity exam.  My instructions following a \nfunctional capacity exam are clearly stated above.   \n \n Dr. Seale noted on November 26, 2018, “Jacqueline Freeman is \ncurrently under my medical care and was seen in my office today.  Please \nexcuse Jacqueline for time missed on 11/26/18.  She may return to work on \n11/26/2018.  Activity is restricted as follows:  light duty and no bending, no \nlifting over 20 lbs., no twisting.”   \nThe parties stipulated that “certain benefits have been paid through \nat least November 26, 2018,” and that the respondents “have controverted \nadditional benefits beyond November 26, 2018.” \n The claimant participated in a Functional Capacity Evaluation on \nNovember 28, 2018:  “The results of this evaluation indicate that an \nunreliable effort was put forth, with 29 of 50 consistency measures within \nexpected limits....Ms. Freeman completed functional testing on this date \nwith unreliable results.  Overall, Ms. Freeman demonstrated the ability to \nperform work in at least the LIGHT classification of work[.]”     \n Dr. Seale reported on January 28, 2019: \nI was able to review the patient’s functional capacity exam \nfrom 11/20/18.  The patient’s effort was unreliable.  The \npatient had 29 of 50 consistency measures within expected \nlimits.  The data provided indicates that the patient did not put \nforth a consistent effort.  [Due] to this unreliable effort, \npatient’s current functional status remains unknown.  Please \nrefer to the functional capacity exam for details. \n\nFREEMAN - G803817  9\n  \n \n \nTherefore, I recommend the patient return back to work full \nduty without restrictions and is at maximum medical \nimprovement as of the date of his functional capacity exam \ncompletion, 11/28/18.   \nThe patient’s MRI findings do not show acute findings or \nobjective findings of injury.  This is why her impairment rating \nwas 0%.  The patient’s objective findings do correlate with her \nsymptoms and subsequent need for surgery.  However, the \npatient’s unreliable functional capacity exam makes me \nhesitate on offering further surgery.  My current \nrecommendation would be for any surgical intervention to be \noutside Worker’s Comp. on her regular insurance to remove \nany possible secondary gain issues. \nPatient is at maximum medical improvement from a Worker’s \nComp. standpoint.   \n \n The record contains a Change of Physician Order dated February \n14, 2019:  “A change of physician is hereby approved by the Arkansas \nWorkers’ Compensation Commission for Jacqueline Freeman to change \nfrom Dr. J. Justin Seale to Dr. Kenneth Rosenzweig.” \n The claimant began treating with Dr. Kenneth M. Rosenzweig on \nFebruary 27, 2019: \nMs. Freeman is a 48-year-old.  Her original injury was on the \njob in 1993 in California.  She has had two back surgeries by \nDr. Shahim dating back to 2010 and 2015.  She aggravated \nher back and injured it in May of 2018 while lifting a heavy box \nat the post office.  She was evaluated by Dr. Justin Seale.  \nShe has had transforaminal epidurals with Dr. Qureshi which \nshe reports did not help much.  She is having ongoing right \nlow back pain and right buttock and hip pain with burning and \npins and needles into her legs.  She had an FCE in November \nof 2018.... \nDr. Seale had suggested in November of 2018 that she have \na third and final injection.  They discussed further surgery.  \nThe patient did not want to have more surgery.  He \nrecommended continued pain management with Dr. Qureshi.  \n\nFREEMAN - G803817  10\n  \n \n \nHe offered a 0% impairment due to no objective findings of \nthe injury.  The prior disc protrusion was calcified and \ntherefore preexisting.  The patient was released from his care \nand was to return as needed.  He required that the patient \nhave a valid functional capacity exam.  Otherwise, she was \nreleased to work at full duty with restrictions.... \n \n Dr. Rosenzweig’s impression was “1.  Postlaminectomy syndrome.  \n2.  Spondylolisthesis.  3.  Spinal stenosis and foraminal stenosis....I would \nlike to get all of the information available to clarify her current state.  It is my \nunderstanding she transferred her care.”  Dr. Rosenzweig also assigned \nwork restrictions on February 27, 2019.   \n Dr. Rosenzweig’s impression on March 28, 2019 was “Chronic back \npain in a worker’s compensation claimant with secondary concerns of failed \nback surgeries x 2.”  Dr. Rosenzweig recommended, “1.  Patient is \ninterested in further surgery for her ongoing pain complaints.  2.  A \nconsultation with Dr. Tim Burson in the Baptist system will be scheduled \nregarding diagnosis, prognosis, and treatment options from a surgical \nstandpoint.”  The claimant testified that the respondent-carrier would not \nauthorize a referral to Dr. Burson.   \n On July 12, 2019, Dr. Rosenzweig answered “Yes” to the following \nquery:  “In your opinion is the patient’s work injury the major cause (at least \n51%) of the current need for treatment and current restrictions?”     \n Meanwhile, the claimant underwent a Left Carpal Tunnel Release on \nJuly 18, 2019.  The post-operative diagnosis was “Left Carpal Tunnel.” \n\nFREEMAN - G803817  11\n  \n \n \n The claimant followed up with Dr. Rosenzweig on July 24, 2019: \nMs. Freeman is a 48-year-old worker’s compensation claimant \nwho injured her back lifting heavy bulk mail.  She has ongoing \nback pain and leg pain.  She has had multiple surgeries on \nher back five years apart.  She is having radicular symptoms \nrelated to previous surgery with respect to adhesive scar \ntissues and radiculitis.  She has not been able to work since \nher injury.  She is requesting a return to work slip regarding \nwhen she will be able to return back to work.  She has not \ndemonstrated any substantial improvement since her last visit.  \nShe is having considerable pain in her right leg and she has \nnot restored her spinal range of motion.  She presents today \nwith two other women while she sits on the table.  She \nrecapitulated how she hurt her back the last time which was in \na work activity where she was required to lift heavy packages \nfrom the mail office and cases and cartons.  She provided \npictures of what she was doing.  This appears to be standard \nmail carriers with letters and small packages.  She states her \nhurt her back at the time she was lifting these parcels.  She \nreported that worker’s compensation has denied any further \ntreatment.  She has not returned back to work.... \nIn review of her diagnostics, she has degenerative disk \ndisease at L4-L5 and L5-S1 and a grade I listhesis at L4-L5.  \nShe has canal stenosis and eccentric disk protrusion at L5-S1 \nwith foraminal stenosis.  \n \n Dr. Rosenzweig’s impression was “1.  Persistent radiculitis of the \nright lower extremity.  2.  Postlaminectomy syndrome....A caudal epidural \nsteroid injection will be scheduled to help defervesce pain and inflammation \nregarding the low back and right leg.”         \n Dr. Rosenzweig performed a “Caudal epidural steroid injection on \nthe right” on October 1, 2019.  The post-operative diagnosis was “Post-\nlaminectomy syndrome with radiculitis.”  Dr. Rosenzweig performed a “High \nepidural steroid injection L2-L3 level to the right” on October 15, 2019.  The \n\nFREEMAN - G803817  12\n  \n \n \npost-operative diagnosis was “1.  Post laminectomy syndrome.  2.  Disk \nherniation.  3.  Radiculitis, right greater than left.”   \n Dr. Rosenzweig’s impression on October 30, 2019 was \n“Postlaminectomy syndrome with referred pain down her legs with mixed \nresponse to epidural steroids with one above her fusion and one below from \na caudal approach.”  Dr. Rosenzweig planned, “1.  An updated MRI will be \nconsidered.  2.  Surgical consultation will be considered.  3.  A third epidural \nto complete her series will be considered.”   \n Dr. Rosenzweig reported on November 21, 2019: \nMs. Freeman is a 48-year-old worker’s compensation claimant \nwho injured her back lifting heavy bulk mail.  She has two \ndates of injury on May 29, 2018 and June 2, 2018.  She has \nhad two previous back surgeries.  She has had back to back \nhigh and low epidural steroids from a high approach and \ninitially from a caudal approach.  She had undergone an FCE \nwhich she reports her hurt and is making her hurt worse. \nAn updated MRI reveals a broad based pseudo protrusion \nwith an acquired canal stenosis but no significant changes, a \nprior laminectomy on the right, pedicle screw intact, and \nmoderate right and mild left facet arthropathy with ligamentum \nflavum buckling but no stenosis.... \nPLAN/RECOMMENDATIONS: \n1.  A repeat epidural steroid injection versus adjacent level \nfacet block will be considered regarding her right low back \npain.  The L5-S1 facets remain open with respect to \nprevious spinal fusion.  The adjacent level may be the \nmain issue of her pain.  It may be reasonable to repeat a \ncaudal epidural for her foraminal stenosis versus facet \nblocks at the adjacent level below her surgery. \n2.  I am in agreement that she has chronic pain and is best \nserved with a chronic pain physician. \n\nFREEMAN - G803817  13\n  \n \n \n3.  She may also require further evaluation regarding surgical \nmanagement with respect to decompression and \nadvancement of her fusion to the sacrum.   \n \n Dr. Rosenzweig gave the following impression:  “Postlaminectomy \nsyndrome with referred pain down her legs with mixed response to epidural \nsteroids.”   \n The claimant followed up with Dr. Jackson on April 23, 2020:  “She \nhas chronic back pain and takes chronic opioid therapy.  Of course her \ntreatment has been disrupted by the COVID pandemic....This is a chronic \nproblem.  The current episode started more than 1 year ago.”  Dr. Jackson \nassessed “1.  Myofascial pain.  2.  Chronic pain disorder.”  Dr. Jackson \nperformed trigger point injections.   \n Dr. Rosenzweig performed a “Caudal epidural steroid injection #3” \non July 30, 2020.  The post-operative diagnosis was “1.  Disk herniation.  2.  \nPost-laminectomy syndrome.  3.  Posterior spinal fusion.  4.  Right-sided \nradiculitis.” \n Dr. Rosenzweig planned and recommended the following on August \n21, 2020:  “1.  Supportive care will be continued with her pain physician.  2.  \nAn evaluation with a spine surgeon will be considered regarding treatment \noptions.  3.  Epidural steroids do not appear to be an answer regarding long \nterm management from a caudal approach to improve delivery and access.  \nShe is reporting insufficient pain relief.”   \n\nFREEMAN - G803817  14\n  \n \n \n Dr. Rosenzweig corresponded with the claimant’s attorney on \nDecember 15, 2021: \nThis is a letter to confirm that Ms. Freeman had been on \ncontract pain management prior to my initial visit with her from \na work related injury in 2018.  Dr. Donald Pate has been and \ncontinues to be her prescribing physician.  She has had \nmedications prescribed prior to Dr. Pate’s care under the care \nof Dr. Qureshi.  I have not participated in her medical \nmanagement regarding chronic pain.  The pain medication is \na result of an earlier lumbar surgery and chronic pain and not \na result of her work related claim from 2018. \nMs. Freeman continues to have symptoms.  It appears that \nshe was able to return to work after her previous surgery but \nwas limited in what activities she could do.  She claimed a \nnew injury with aggravation of her underlying injury as \npreviously outlined in the medical records. \nThe purpose of this letter is to confirm that Ms. Freeman was \nunder the care of Dr. Donald Pate for medical management \nprior to my visit with her regarding an injury while at work in \n2018.  I have not participated in her pain management.  To my \nknowledge, I have not violated her pain contract.   \n \n A pre-hearing order was filed on March 23, 2022.  The parties \nagreed to litigate the following issues: \n(1) Whether the Claimant is entitled to additional reasonably \nnecessary medical care and related expenses beyond \nNovember 26, 2018, in relation to [her] compensable \nlumbar injury of May 29, 2018, as well as additional \ntemporary total disability benefits for as yet unspecified \ndates, and attorney’s fees in relation to controverted \nindemnity benefits.   \n \nA hearing was held on June 10, 2022.  At that time, the parties’ \ncolloquy indicated that the respondents paid temporary total disability \nbenefits through November 30, 2018.  The claimant contended that she \n\nFREEMAN - G803817  15\n  \n \n \nwas entitled to additional temporary total disability benefits beginning \nDecember 1, 2018 until a date yet to be determined.  The claimant testified \nthat she had not returned to work with any employer.      \nAn administrative law judge filed an opinion on September 7, 2022.  \nThe administrative law judge found that the claimant failed to prove she was \nentitled to additional medical treatment, and that the claimant failed to prove \nshe was entitled to additional temporary total disability benefits.  The \nclaimant appeals to the Full Commission.   \nII.  ADJUDICATION \nA.   Temporary Disability \nTemporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \nHwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing \nperiod” means “that period for healing of an injury resulting from an \naccident.  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \ncontinues until the employee is as far restored as the permanent character \nof her injury will permit, and if the underlying condition causing the disability \nhas become stable and nothing further in the way of treatment will improve \nthat condition, the healing period has ended.  Harvest Foods v. Washam, \n52 Ark. App. 72, 914 S.W.2d 776 (1996).  Whether or not an employee’s \nhealing period has ended is a question of fact for the Commission.  Id. \n\nFREEMAN - G803817  16\n  \n \n \nAn administrative law judge found in the present matter that the \nclaimant “failed to prove that she is entitled to additional temporary total \ndisability benefits from December 1, 2018, through a date yet to be \ndetermined.”  The Full Commission affirms this finding. \nAs we have discussed, the claimant previously underwent low back \nsurgeries in 2010 and 2015.  The claimant testified that she had been \nassigned permanent work restrictions following surgery.  The claimant \nbecame employed with the respondents, Arkansas Department of \nCorrections, in October 2017.  The claimant testified that she worked in the \nrespondent-employer’s file room and mail room.  The claimant testified that \nshe injured her low back on or about May 29, 2018 as a result of heavy \nlifting related to her mail room duties.  The parties stipulated that the \nclaimant sustained “a compensable lumbar injury” on May 29, 2018.  Dr. \nJackson treated the claimant beginning June 7, 2018 and assessed “1.  \nStrain of lumbar region, initial encounter.”  Dr. Jackson took the claimant off \nwork.  Dr. Jackson again assessed “1.  Strain of lumbar region” on June 11, \n2018.  The respondents terminated the claimant’s employment effective \nJune 12, 2018.  The record indicates that the claimant’s termination was \nrelated to alleged misconduct and was not the result of the May 29, 2018 \ncompensable injury.   \n\nFREEMAN - G803817  17\n  \n \n \nDr. Seale provided an Independent Medical Evaluation (IME) on July \n16, 2018.  Dr. Seale recommended injection treatment, and he released the \nclaimant to return to light-duty work.  The claimant participated in a \nFunctional Capacity Evaluation on November 28, 2018.  It was averred as a \nresult of the FCE that the claimant gave “an unreliable effort,” and the \nevaluators released the claimant to return to light work.  The respondents \npaid temporary total disability benefits through November 30, 2018.   \nThe claimant contends in her brief on appeal that she is “Entitled to \nTemporary Disability Benefits Because she is Still within her Healing \nPeriod.”  The Full Commission finds that the claimant reached the end of \nher healing period no later than November 28, 2018.  The evidence \ndemonstrates that the claimant sustained a compensable lumbar strain on \nMay 29, 2018 as assessed by Dr. Jackson.  The claimant was treated \nconservatively for her compensable lumbar strain and was provided \ntemporary total disability benefits.  The claimant was released to light work \nfollowing the November 28, 2018 Functional Capacity Evaluation.  The \nrespondents paid temporary total disability benefits through November 30, \n2018.  Dr. Seale reported on January 28, 2019, “I recommend the patient \nreturn back to work full duty without restrictions and is at maximum medical \nimprovement as of the date of [her] functional capacity exam completion, \n11-28-18 [emphasis supplied].”  The Commission has the authority to \n\nFREEMAN - G803817  18\n  \n \n \naccept or reject medical opinion and the authority to determine its medical \nsoundness and probative force.  Green Bay Packing v. Bartlett, 67 Ark. \nApp. 332, 999 S.W.2d 692 (1999).  In the present matter, the Full \nCommission finds that Dr. Seale’s opinion is corroborated by the record and \nis entitled to significant evidentiary weight.  The Full Commission finds that \nthe claimant reached the end of the healing period for her compensable \nlumbar strain no later than November 28, 2018.  The evidence \ndemonstrates that the claimant was as far restored as the “permanent \ncharacter” of her lumbar strain would permit no later than November 28, \n2018.   \nTemporary total disability benefits cannot be awarded after an \nemployee’s healing period has ended.  Milligan v. West Tree Serv., 57 Ark. \nApp. 14, 946 S.W.2d 697 (1997).   The Full Commission therefore finds that \nthe claimant did not prove she was entitled to additional temporary total \ndisability benefits after November 28, 2018.  Nor did the claimant re-enter a \nhealing period at any time beyond November 28, 2018.  Dr. Rosenzweig’s \nimpression of “1.  Postlaminectomy syndrome” beginning February 27, \n2019 does not indicate that the claimant re-entered a healing period for the \ncompensable lumbar strain occurring May 29, 2018. \n\nFREEMAN - G803817  19\n  \n \n \nThe Full Commission affirms the administrative law judge’s finding in \nthe present matter that the claimant failed to prove she was entitled to \nadditional temporary total disability benefits.         \nB.   Medical Treatment \nThe employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).   \nAn administrative law judge found in the present matter, “(2)  The \nClaimant has failed to prove, by a preponderance of the evidence, that she \nis entitled to additional reasonably necessary medical care in relation to her \ncompensable injury of May 29, 2018[.]”  The Full Commission finds that the \nclaimant did not prove additional medical treatment was reasonably \nnecessary in connection with the compensable injury.   \n\nFREEMAN - G803817  20\n  \n \n \nThe parties stipulated that the claimant sustained “a compensable \nlumbar injury” on May 29, 2018.  Dr. Jackson assessed “Strain of lumbar \nregion” on June 7, 2018.  Dr. Jackson and Dr. Seale treated the claimant \nconservatively.  The record indicates that the claimant received at least \nthree lumbar injections from which she reported minimal benefit.  Dr. Seale \nopined on January 28, 2019, “Patient is at maximum medical improvement \nfrom a Worker’s Comp. standpoint.”   \nThe Full Commission has determined supra that the claimant \nreached the end of her healing period no later than November 28, 2018.  \nThe Full Commission recognizes that an employee may receive additional \nmedical treatment after the end of her healing period, if said treatment is \ngeared toward management of the compensable injury.  Patchell v. Wal-\nMart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004).  In the present \nmatter, however, the Full Commission finds that additional medical \ntreatment beyond November 28, 2018 was not geared toward management \nof the compensable injury.  The evidence does not demonstrate that \ntreatment provided the claimant after November 28, 2018 was reasonably \nnecessary in connection with the compensable lumbar strain occurring May \n29, 2018.     \nThe record contains a Change of Physician Order dated February \n14, 2019, approving a change of physician from Dr. Seale to Dr. \n\nFREEMAN - G803817  21\n  \n \n \nRosenzweig.  When a claimant has exercised her statutory right to a one-\ntime change of physician, the respondents must pay for the initial visit to the \nnew physician in order to fulfill their obligation to provide reasonably \nnecessary medical treatment in accordance with Ark. Code Ann. §11-9-508.  \nWal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  \nIn the present matter, therefore, if they have not done so, the respondents \nmust pay for the claimant’s initial visit with Dr. Rosenzweig which took place \non February 27, 2019. \nNevertheless, the record does not show that treatment or \nrecommendations provided by Dr. Rosenzweig after February 27, 2019 \nwere reasonably necessary in connection with the May 29, 2018 \ncompensable injury.  Dr. Rosenzweig’s diagnoses of postlaminectomy \nsyndrome, spinal stenosis, and chronic back pain were not causally related \nto the compensable injury suffered by the claimant on May 29, 2018.  Dr. \nRosenzweig answered a query on July 12, 2019 and indicated that the \nclaimant’s work injury was “the major cause” of the claimant’s need for \ntreatment.  It is within the Commission’s province to weigh all of the medical \nevidence and to determine what is most credible.  In the present matter, the \nFull Commission finds that Dr. Rosenzweig’s causation opinion is entitled to \nminimal evidentiary weight.  The record does not show that treatment \nprovided by Dr. Rosenzweig was causally related to the May 29, 2018 \n\nFREEMAN - G803817  22\n  \n \n \ncompensable injury, which injury resolved no later than November 28, 2018 \naccording to Dr. Seale.  The Full Commission finds that Dr. Seale’s opinion \nis corroborated by the record and is entitled to more evidentiary weight than \nDr. Rosenzweig’s opinion.  The record does not show that \n“Postlaminectomy syndrome” as diagnosed by Dr. Rosenzweig was \ncausally related to the compensable lumbar strain.   \nAfter reviewing the entire record de novo, the Full Commission \naffirms the administrative law judge’s finding that the claimant did not prove \nshe was entitled to additional temporary total disability benefits.  The Full \nCommission finds that the claimant did not prove she was entitled to \nadditional temporary total disability benefits after the end of the claimant’s \nhealing period on November 28, 2018.  If they have not done so, the \nrespondents must pay for the claimant’s initial visit with Dr. Rosenzweig \nwhich took place on February 27, 2019.  Wal-Mart Stores, Inc. v. Brown, \nsupra.  However, the claimant did not prove that any of Dr. Rosenzweig’s \ntreatment recommendations following February 27, 2019 were reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe claimant therefore did not prove she was entitled to additional medical \ntreatment after February 27, 2019.  This claim is respectfully denied and \ndismissed. \n \n\nFREEMAN - G803817  23\n  \n \n \nIT IS SO ORDERED     \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite concurs and dissents. \nCONCURRING AND DISSENTING OPINION \n After my de novo review of the entire record, I concur in part with but \nmust respectfully dissent in part from the majority opinion.  I concur with the \nmajority’s finding that the claimant did not prove she was entitled to \nadditional temporary total disability benefits after the end of her healing \nperiod on November 28, 2018.  However, I must dissent from the majority \nopinion finding that the claimant failed to prove she was entitled to \nadditional medical treatment.   \n An employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).  What constitutes reasonably necessary medical \n\nFREEMAN - G803817  24\n  \n \n \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). \n I find that the surgical intervention recommended by Dr. Seale is \nreasonably necessary.  During the claimant’s August 20, 2018, visit, Dr. \nJustin Seale recommended that the claimant undergo a L4-S1 fusion.  Dr. \nSeale noted, “I do believe the surgical intervention may be the only way to \ngive her long-term relief of the pain”.  However, the claimant did not want \nsurgery at that time.  I find nothing within the record that would negate the \nnecessity of this surgery. \n The claimant exercised her right to a one-time change of physician \nand began receiving treatment from Dr. Kenneth Rosenzweig.  Once the \nclaimant began treating with Dr. Rosenzweig, he opined that the claimant’s \nwork injury was the major cause of the current need for treatment and \ncurrent restrictions.  The claimant expressed a desire to Dr. Rosenzweig to \npursue surgical intervention.  However, when Dr. Rosenzweig attempted to \nrefer the claimant to Dr. Tim Burson for a surgical consult, the respondents \nrefused to authorize the referral.  In his November 21, 2019, and August 21, \n2020, medical records, Dr. Rosenzweig continued to recommend that the \nclaimant be evaluated by a spine surgeon regarding further treatment \noptions. \n\nFREEMAN - G803817  25\n  \n \n \n Additionally, the need for surgery was causally connected to the \nclaimant’s work injury.  Dr. Seale opined that the pain in the claimant’s right \nleg did not pre-exist her injury.  “Therefore it is within a certain [sic] degree \nof medical certainty that at least 51% of the patient’s current symptoms are \ndirectly related to [her] work injury.” \n Based on the aforementioned, I find that the claimant has \nestablished by a preponderance of the evidence that she is entitled to \nadditional medical treatment as recommended by Dr. Seale and Dr. \nRosenzweig, as well as all the treatment provided by Dr. Rosenzweig. \n For the foregoing reasons, I concur in part and dissent in part from \nthe majority opinion. \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","textLength":39049,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G803817 JACQUELINE D. FREEMAN, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTIONS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","outcome":"granted","outcomeKeywords":["granted:4","denied:2"],"injuryKeywords":["lumbar","back","knee","strain","hip","carpal tunnel"],"fetchedAt":"2026-05-19T22:29:46.562Z"},{"id":"full_commission-H108467-2023-03-23","awccNumber":"H108467","decisionDate":"2023-03-23","decisionYear":2023,"opinionType":"full_commission","claimantName":"Samuel Perez","employerName":"Cargill, Inc","title":"PEREZ VS. CARGILL, INC. AWCC# H108467 MARCH 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Perez_Samuel_H108467_20230323.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Perez_Samuel_H108467_20230323.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H108467 \n \nSAMUEL PEREZ, \nEMPLOYEE \n \nCLAIMANT \nCARGILL, INC.,  \nEMPLOYER \n \nRESPONDENT \nOLD REPUBLIC INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED MARCH 24, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE LAURA J. PEARCE, \nAttorney at Law, Fort Smith, Arkansas. \n \nDecision of Administrative Law Judge:  Reversed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nAugust 25, 2022.  The administrative law judge found that the claimant \nfailed to prove he sustained a compensable injury.  After reviewing the \nentire record de novo, the Full Commission reverses the administrative law \njudge’s opinion.  The Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a compensable injury to \nhis right shoulder which was caused by rapid repetitive motion.   \nI.  HISTORY \n\nPEREZ - H108467   2\n  \n \n \n The record indicates that Samuel Perez, now age 45, became \nemployed with the respondents, Cargill, in August 2018.  The respondents’ \nattorney examined the claimant at a deposition of record: \nQ.  So when you were hired by Cargill, what were you hired to \ndo?  What was your job to be? \nA.  My responsibilities? \nQ.  Yes. \nA.  I was working in evis.  I worked for evis.  Evis is what it is \ncalled.   \nQ.  Okay.  When you went to work, what did you actually do?  \nWhat jobs did you actually perform? \nA.  From the time that I started? \nQ.  Sure. \nA.  It’s called three points in evis.... \nQ.  So when you get to work and you clock in, what is the first \nthing that you do? \nA.  I put on my gloves and I go to the line.   \nQ.  Okay.  And what do you do on the line? \nA.  We are doing the rotation. \nQ.  Okay.  How many different stations are there in the \nrotation? \nA.  There, there is two....But when there is not enough \npeople, there is three.   \nQ.  And was this the job that you were doing when you were \ninjured? \nA.  No.   \nQ.  Okay.  How about when you were injured, what job were \nyou doing? \nA.  I was hanging the turkeys that go to the chiller.   \nQ.  And how long had you been assigned to do that job? \nA.  When I started.   \nQ.  When did you start hanging turkeys? \nA.  When I started.  I did that for about two years there in \nevis.... \nQ.  Can you describe for me, can you paint me a picture of \nwhat that looks like, like what your job looked like? \nA.  In evis? \nQ.  This job we are talking about, the hanging the turkeys, \nwalk me through what your day looked like.   \n\nPEREZ - H108467   3\n  \n \n \nA.  So, when I get there at evis, I am hanging them by their \nheads.   \nQ.  And how high is the line that you are hanging them on? \nA.  More or less around here, about this high (indicating).   \nQ.  And the way you moved your hand, your are pointing at \nabout chest height? \nA.  Yes.   \nQ.  And where are you picking the turkeys up before you hang \nthem on the line? \nA.  Off of the band.  There is a belt that comes by.   \nQ.  And how high is the belt? \nA.  About this table height.... \nQ.  And when you show up that day and you start hanging the \nturkeys, is that the only job that you do for the entire day? \nA.  Well, you are there for an hour hanging them by their \nheads because to do that you have to grab them and pull \nthem and put them up on the hook.   \nQ.  And then after that hour, what do you do? \nA.  And after that hour, we switch off to hang by the feet and \nthen the head again.   \nQ.  And is your portion of that job different when you hang \nthem by the feet than when you hang them by the head? \nA.  Yes....When we are hanging them by the feet, they put a \nbench that we have to be on top of to be able to pull the \nturkeys and then flip them over to hang them by their feet.... \nQ.  So someone at the first station is hanging turkeys by their \nheads and then the next station you are standing on a bench \nand you are taking the feet and you are also putting them up, \nhanging them up by their feet and their head at the same \ntime? \nA.  Yes.... \nQ.  And then after you hang them by their feet for an hour, do \nyou go back to hanging them by their head or do you do a \ndifferent job? \nA.  You go back to hanging by the head.   \nQ.  So when you said three point, when you are doing the \nthree-point job, is it because there is the two feet and the \nhead and then they are hanging by three points? \nA.  Yes.   \n \n\nPEREZ - H108467   4\n  \n \n \n The parties stipulated that the employee-employer-carrier \nrelationship existed on June 28, 2021.  The respondents’ attorney \nexamined the claimant at deposition: \nQ.  So what were you doing that day before you noticed that \nyou were hurting? \nA.  Oh, well, that day I was hanging, hanging birds, and I \nstarted to feel a heat in my chest and then around here \n(indicating), but, you know, I had been working and hanging \nthem all day.... \nQ.  So what parts of your body were hurting that day? \nA.  The hands, elbows, up here (indicating), and the back of \nmy neck.... \nQ.  Are you pointing to your shoulders? \nA.  Yes.... \nQ.  Was one side worse than the other? \nA.  Yes, the right side.... \nQ.  So would you have to lift a turkey and then turn in order to \nhang it or would you just lift it off the band and put it right up \non the line? \nA.  You have to turn.... \nQ.  And how quickly are they coming?  In that hour, how many \nturkeys would you say you hang by the head? \nA.  Well, honestly, to be really honest, I was just looking at the \nline, so that is all I know.   \nQ.  So if you are only at that station for one hour, hanging the \nturkeys by their head for an hour, would you hang 20 turkeys \nduring that time?  Would you hang 80 turkeys during that \ntime?  Can you give me an idea? \nA.  Well, I think in an hour, maybe 500.   \nQ.  And is that the same when you are taking them and \nflipping their feet up? \nA.  Yes.  It is just one line.... \nQ.  Let’s say before the month of June, had you had problems \nwith your shoulders before that? \nA.  So from three points, they changed me over to the chiller \nand that is when I started hurting.   \nQ.  Why did they change you over to the chiller? \nA.  They moved me to a position called utility.   \nQ.  Why? \n\nPEREZ - H108467   5\n  \n \n \nA.  Well, the utility position, you go around, you are sweeping \nor hanging or you can do any job there.... \nQ.  So in January of 2021, you start doing the utility position.  \nOther than the three-point area, what other types of jobs did \nyou do? \nA.  Well, when they first changed me over from three points, I \nwas in that department – what is it called – they transferred \nme to a department called all dock and that is where I was \nworking before shipping.   \nQ.  And what did you do in all dock? \nA.  I was there and I was moving the turkeys off of the truck to \ngo to deboning....In the chiller is where the turkeys are hung \nthat are going to be deboned.   \nQ.  Okay.  And is the equipment and the process different if \nyou are hanging turkeys in the chiller than what you’ve \nalready explained to me for three points? \nA.  Yes.  It is similar.   \nQ.  Okay.  Do the turkeys move faster or slower or is it about \nthe same? \nA.  Faster.  Faster.   \nQ.  And how long did you work in the chiller? \nA.  Well, from the time they took me off palleting until I was \nhurt.... \nQ.  So what is different about the chiller than what you \nexplained to me about three points? \nA.  So in the three points, you have to bend over to grab the \nchicken and then hang it up and in the chiller you don’t bend \nover.  So there, all the turkeys are already in a pile and you \njust have to find a leg and pull it up.... \nQ.  So the turkeys are in a big pile on this moving belt? \nA.  Yes.... \nQ.  Do you have a requirement – did you have a requirement \nto hang a certain number of turkeys in a period of time? \nA.  Yes.   \nQ.  And what was that number? \nA.  So there were four of us working, so you had to grab one \nand leave three, and then grab one and leave three.... \nQ.  So before you were switched over to the chiller, had you \nnoticed any pain in any of your body parts that you are \ncomplaining of today? \nA.  No.  No.  It wasn’t until I was in the chiller.   \n\nPEREZ - H108467   6\n  \n \n \nQ.  And then one day you were working in the chiller and then \nall of a sudden everything started to hurt? \nA.  Yes.     \n \n The claimant’s attorney examined the claimant at hearing: \nQ.  Now, before you got injured when you were working on \nthe chiller line, is there a quota?  Do you have to do a certain \nnumber of turkeys? \nA.  They have a goal, so many turkeys per day.   \n \n According to the record, the claimant treated at Cargill Health \nServices on July 9, 2021: \nPain in bilateral shoulders, arms including elbows, hands and \nfingers with tingling in small fingers and lateral hands and \nlower arms to elbow; No change.... \nDate/time of injury or onset of illness:  06-28-2021.... \nWork related?  Yes.... \nWhere the injury/illness occurred:  Debone/Rehang... \nWhat object or substance directly harmed the employee?  \nHanging turkeys.... \n•  OCC WC, Reduced Count to 50% of regular job dated:  07-\n07-2021 – 07-21-2021.... \n \n The claimant was treated with ice and medication.  It was noted, \n“Return to work at 50% RDCNT.”  The claimant continued to follow up at \nCargill Health Services.  It was noted on July 21, 2021, “He reports he has \nnot been working at a rdcnt as instructed, all the time and relates the new \npain to working rehang.  He has been coming to Health Services \nTreatments and taking medications as taught.  He voices concerns \nregarding his current position.”  It was noted, “What object or substance \ndirectly harmed the employee?  Hanging turkeys.”   \n\nPEREZ - H108467   7\n  \n \n \n It was noted on July 22, 2021, “EE instructed to go to Arkansas \nOccupational Health Clinic.”     \nThe record contains a CORRECTIVE ACTION/DISCIPLINE NOTICE \npresented on or about July 23, 2021: \n Samuel, \nOn 7/7, you were placed on restrictions of 50%.  On 7/9 and \n7/16, you were noticed not following your restrictions.  You \nhave been verbally communicated by your trainer, medical, \nand our supervisors to follow your piece count multiple times \n(see documentation).  By not following your restrictions, this \nwill not allow your body to feel better with the ESI you \nreceived on 7/7.   \nRestrictions must be followed at all times.  Not following \nrestrictions will lead towards additional disciplinary action....   \n \n Stephanie Dishman noted at Cargill Health Services on July 26, \n2021, “EE returns to work to report increased pain and bruise (appears to \nbe 2 to 3 days old) in area just below the right scapula.  Continued pain to \nBUE including shoulders and elbows with tingling to bilateral 5\nth\n digit.  He \nhas not worked since Wednesday, 07/21/2021....EE instructed to go to \nArkansas Occupational Health Clinic once he leaves Health Services.”   \n Additionally, a Nurse Practitioner reported on July 26, 2021: \nPatient states that he is concerned about a bruise that has \ndeveloped to the right side of his ribs.  Both elbows, pinky \nfingers and traps have slightly improved.   \nDiagnosis/Treatment rendered: \n1.  Unspecified disturbance of skin. \n2.  Pain in right elbow. \n3. Pain in left elbow.... \n \n\nPEREZ - H108467   8\n  \n \n \nThe claimant can return to work on 07/26/2021 with the \nfollowing temporary restrictions: \nAvoid repetitive bending and extending both elbows. \nUse gel guards as needed.   \nNo push, pull, lift more than 10 lbs.   \n \n The respondents terminated the claimant’s employment on or about \nJuly 27, 2021.  The claimant’s termination was related to excessive and \nunauthorized absences from the workplace.  \n Dr. Miles M. Johnson provided a Neurological \nEvaluation/Electrodiagnostic Report on August 17, 2021: \nPatient is a 44-year-old right-handed male with a 3-month \nhistory of medial elbow pain bilaterally.  He has numbness \nand tingling in the fourth and fifth digits and medial palm in the \nright greater than left hand.  There is some grip weakness.  \nDoes have some neck pain but denies any radiation.  Patient \nhas been to Dr. Berestnev and is referred for electrodiagnostic \ntesting of the bilateral upper extremity.... \nSUMMARY:  Bilateral median motor studies are normal.  \nUlnar elbow conduction velocities are decreased bilaterally \nrecording over the ADM and FDl.  Median and ulnar \northodromic sensory latency difference is normal bilaterally.  \nEMG examination of the bilateral upper extremity revealed \nreduced recruitment in the FDl bilaterally.   \n \n Dr. Johnson assessed “Moderate bilateral ulnar neuropathy at the \nelbows.  There is no electrodiagnostic evidence of radiculopathy, \nplexopathy, generalized peripheral neuropathy or other peripheral \nentrapment syndromes.”   \n The claimant treated at Community Clinic beginning November 12, \n2021.  The diagnosis at that time included “Trapezius muscle spasm.”   \n\nPEREZ - H108467   9\n  \n \n \n A pre-hearing order was filed on January 6, 2022.  According to the \ntext of the pre-hearing order, the claimant contended, “Claimant contends \nhe is entitled to medical treatment for his arms, hands, shoulders and neck.  \nHe also contends he is entitled to temporary total disability benefits.  The \nclaimant reserves all other issues.”   \n The parties stipulated that the respondents “controvert this claim in \nits entirety.”  The respondents contended, “Respondents contend that \nclaimant’s injuries do not meet the requirements as to compensability under \nAct 796.  Respondents contend that claimant failed to notify respondents of \na work-related injury that he alleges occurred on June 28, 2021.”   \n The parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury to his \narms, hands and shoulders bilaterally as well as his neck \nas a result of a gradual onset injury culminating on June \n28, 2021.   \n2.  Whether claimant is entitled to medical treatment.   \n3.  Whether claimant is entitled to temporary total disability \nbenefits from the date last worked to a date yet to be \ndetermined.   \n4. Whether claimant’s attorney is entitled to an attorney’s fee. \n \nAnne Sheen, PA examined the claimant at Community Clinic on \nFebruary 18, 2022: \n44 y/o M presents with c/o persistent Rt arm pain.  States the \npain starts by his shoulder blade and radiates down his Rt \narm.  He denies known injury.  States the pain has been \nworsening and he now gets tingling/numbness in the arm.  He \nhas tried taking mobic and flexeril without improvement of his \nsxs.... \n\nPEREZ - H108467   10\n  \n \n \nMusculoskeletal:  Large knot/spasm noted proximal to Rt \nscapula – very ttp.  Pt reports limited ROM of Rt shoulder d/t \npain.  States pain radiates up his neck w/movements of his \nshoulder.  No spinous abnormalities noted to neck or bony \nabnormalities noted to bil shoulders, arms.   \n \n Ms. Sheen assessed “1.  Anxiety with depression” and “2.  Trapezius \nmuscle spasm.” \n Anne Sheen noted on March 16, 2022, “44 y/o M presents with \ncontinued c/o Rt posterior shoulder pain with radiation down Rt arm.  He \nhas been seen for this previously and trialed prednisone, NSAIDs, and \nmuscle relaxers without relief.  I referred him to PT but they were not able to \nreach him to schedule appt....Large knot/spasm noted proximal to Rt \nscapula – very ttp.”  Ms. Sheen assessed “1.  Trapezius muscle spasm.  2.  \nRight arm pain.  3.  Paresthesia of right upper extremity.”   \nAn MRI of the claimant’s right shoulder was taken on March 24, 2022 \nwith the following findings: \nBursal surface fraying of the supraspinatus and tendinopathy \nis seen.  The infraspinatus is intact and demonstrates normal \nsignal.  The subscapularis is intact and demonstrates normal \nsignal.  The long head biceps tendon is intact and \ndemonstrates normal signal.  No muscular atrophy is seen. \nMild degenerative changes of the acromioclavicular joint are \nseen.  A type II acromion is identified.  Increased signal seen \nin the anterior labrum consistent with an underlying tear.  The \nglenohumeral cartilage is well-maintained.   \nIMPRESSION:  1.  Tear involving the anterior labrum. \n2.  Bursal surface fraying of the distal fibers of the \nsupraspinatus.   \n \n\nPEREZ - H108467   11\n  \n \n \n A hearing was held on May 31, 2022.  At that time, the parties \nagreed to litigate the following issues: \n1.  Whether the claimant sustained a compensable injury to \nhis right shoulder as a result of a gradual-onset injury \nculminating on June 28, 2021. \n2.  Whether the claimant is entitled to medical treatment.  \n \nThe claimant testified at hearing that he had become employed with \nanother company.  The claimant testified that he continued to suffer from \npain in his right shoulder, right upper extremity, and neck.   \nAn administrative law judge filed an opinion on August 25, 2022.  \nThe administrative law judge found that the claimant failed to prove he \nsustained a compensable injury to his right shoulder.  The administrative \nlaw judge therefore denied the claim.  The claimant appeals to the Full \nCommission.     \nII.  ADJUDICATION \n Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: \n(A)  “Compensable injury” means: \n(ii)  An injury causing internal or external physical harm to \nthe body and arising out of and in the course of \nemployment if it is not caused by a specific incident or is \nnot identifiable by time and place of occurrence, if the \ninjury is: \n(a)  Caused by rapid repetitive motion.... \n \nIn analyzing whether an injury is caused by rapid repetitive motion, \nthe standard is a two-pronged test:  (1)  the tasks must be repetitive, and \n(2)  the repetitive motion must be rapid.  Malone v. Texarkana Public \n\nPEREZ - H108467   12\n  \n \n \nSchools, 333 Ark. 343, 969 S.W.2d 644 (1998).  As a threshold issue, the \ntasks must be repetitive, or the rapidity element is not reached.  Id.  \nArguably, even repetitive tasks and rapid work, standing alone, do not \nsatisfy the definition; the repetitive tasks must be completed rapidly.  Id.   \nA compensable injury must also be established by medical evidence \nsupported by objective findings.  Ark. Code Ann. §11-9-102(4)(D)(Repl. \n2012).  “Objective findings” are those findings which cannot come under the \nvoluntary control of the patient.  Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. \n2012). \nArk. Code Ann. §11-9-102(4)(Repl. 2012) further provides, in \npertinent part: \n(E)  BURDEN OF PROOF.  The burden of proof of a \ncompensable injury shall be on the employee and shall be as \nfollows: \n(ii)  For injuries falling within the definition of compensable \ninjury under subdivision (4)(A)(ii) of this section, the burden of \nproof shall be by a preponderance of the evidence, and the \nresultant condition is compensable only if the alleged \ncompensable injury is the major cause of the disability or need \nfor treatment.   \n \n “Major cause” means more than fifty percent (50%) of the cause.  \nArk. Code Ann. §11-9-102(14)(A)(Repl. 2012).  A finding of major cause \nshall be established according to the preponderance of the evidence.  Ark. \nCode Ann. §11-9-102(14)(B)(Repl. 2012).  Preponderance of the evidence \nmeans the evidence having greater weight or convincing force.  \n\nPEREZ - H108467   13\n  \n \n \nMetropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d \n252 (2003). \n An administrative law judge found in the present matter, “3.  The \nclaimant has failed to prove by a preponderance of the evidence that he \nsustained a compensable injury to his right shoulder as a result of a gradual \nonset injury culminating on or about June 28, 2021.”  In workers’ \ncompensation cases, the Commission functions as the trier of fact.  Blevins \nv. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 (1988).  The \ndetermination of the credibility and weight to be given a witness’s testimony \nis within the sole province of the Commission.  Murphy v. Forsgren, Inc., 99 \nArk. App. 223, 258 S.W.3d 794 (2007).  The Commission is not required to \nbelieve the testimony of the claimant or any other witness but may accept \nand translate into findings of fact only those portions of the testimony it \ndeems worthy of belief.  Farmers Co-op v. Biles, 77 Ark. App. 1, 69 S.W.3d \n899 (2002).  An administrative law judge’s findings with regard to credibility \nare not binding on the Full Commission.  Roberts v. Leo Levi Hospital, 8 \nArk. App. 184, 649 S.W.2d 402 (1983).  The Full Commission has the duty \nto decide the case de novo and we are not bound by the characterization of \nevidence adopted by an administrative law judge.  Tyson Foods, Inc. v. \nWatkins, 31 Ark. App. 230, 792 S.W.2d 348 (1990).         \n\nPEREZ - H108467   14\n  \n \n \n The Full Commission finds in the present matter that the claimant \nproved by a preponderance of the evidence that he sustained a \ncompensable injury to his right shoulder as the result of rapid repetitive \nmotion.  The claimant became employed with the respondents in August \n2018.  The claimant testified that he worked in “evis” for the respondents, \nand that he was injured while “hanging the turkeys that go to the chiller.”  \nThe Full Commission finds that the claimant was a credible witness.  The \nevidence of record corroborated the claimant’s testimony.  The claimant \ndescribed in detail his repetitive work on the respondents’ “evis” assembly \nline or conveyor.  The claimant estimated that he processed approximately \n500 turkeys per hour, which work would calculate to about 8.3 turkeys per \nminute.  The evidence demonstrates that the claimant performed repetitive \ntasks in a rapid manner.  See Malone, supra.  We find that the claimant’s \nduties were both repetitive and rapid.  Whether or not an employee was \nperforming rapid repetitive motion is not a mathematical formula but is a \nfinding of fact based on the circumstances of each particular case.  Hapney \nv. Rheem Manufacturing Co., 67 Ark. App. 8, 992 S.W.2d 151 (1999).  The \nclaimant testified that he was required to process the turkeys “Faster.  \nFaster” when he worked in the respondents’ “chilling” department.   \n The claimant began treating at Cargill Health Services on July 9, \n2021.  A company nurse noted at that time, “What object or substance \n\nPEREZ - H108467   15\n  \n \n \nharmed the employee?  Hanging turkeys.”  The claimant was given a \n“Reduced Count” of the number of turkeys to process.  The “Reduced \nCount” restriction is probative evidence implicitly demonstrating that the \nclaimant’s rapid repetitive work for the respondents was causing his \nsymptoms.  On July 26, 2021, a company nurse appeared to notice a bruise \nin the claimant’s right scapula area.  The scapula is in the anatomic region \nof the claimant’s right shoulder where he complained of work-related pain.  \nHowever, the respondents terminated the claimant’s employment on or \nabout July 27, 2021.   \n A physician’s assistant reported a “Large knot/spasm” proximal to \nthe right scapula on February 18, 2022.  Spasm is a patent objective \nmedical finding establishing a compensable injury.  University of Ark. Med. \nSciences v. Hart, 60 Ark. App. 13, 958 S.W.2d 546 (1997).     \nAn MRI of the claimant’s right shoulder on March 24, 2022 showed a “tear” \nof the labrum and “bursal surface fraying” in the supraspinatus tendon.  The \nMRI results are additional objective medical findings establishing an injury.  \nWe find that these objective medical findings, that is, the reported spasm \nand the abnormalities shown on MRI, were causally related to the \nclaimant’s rapid repetitive work for the respondents.   \n The Full Commission finds that the claimant proved by a \npreponderance of the evidence that he sustained a “compensable injury” in \n\nPEREZ - H108467   16\n  \n \n \naccordance with Ark. Code Ann. §11-9-102(4)(A)(ii)(a)(Repl. 2012).  The \nclaimant proved that he sustained an injury causing physical harm to his \nright shoulder, and that the injury arose out of and in the course of \nemployment.  The claimant proved that the right shoulder injury was caused \nby rapid repetitive motion.  The claimant established a compensable injury \nby medical evidence supported by objective findings, notably the reports of \ntrapezius muscle spasm and “tear” and “fraying” shown on MRI.  The \nclaimant proved that the compensable injury was the major cause of his \nneed for medical treatment.     \n After reviewing the entire record de novo, the Full Commission finds \nthat the claimant proved by a preponderance of the evidence that he \nsustained a compensable injury to his right shoulder which was caused by \nrapid repetitive motion.  The claimant proved that the treatment of record \nwas reasonably necessary in accordance with Ark. Code Ann. §11-9-\n508(a)(Repl. 2012).  There are currently no recommendations for additional \nmedical treatment.  For prevailing on appeal to the Full Commission, the \nclaimant’s attorney is entitled to a fee of five hundred dollars ($500), \npursuant to Ark. Code Ann. §11-9-715(b)(Repl. 2012). \n \n \n \n\nPEREZ - H108467   17\n  \n \n \n IT IS SO ORDERED.   \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \nDISSENTING OPINION \n I must respectfully dissent from the Majority opinion finding that the \nclaimant has proven by a preponderance of the evidence that he sustained \na compensable injury to his right shoulder which was caused by rapid \nrepetitive motion. \nThe present case is one of credibility.  As highlighted by the Majority, \nit is the within the sole discretion of the Commission to determine the \ncredibility of a witness’ testimony; however, \"[w]here there are \ncontradictions in the evidence, it is within the Commission's province to \nreconcile conflicting evidence and to determine the true facts.\"  Templeton \nv. Dollar General Store, 2014 Ark. App. 248, 434 S.W.3d 417 (2014).  A \nclaimant's testimony is deemed controverted as a matter of law.  See Ester \nv. National Home Ctrs. Inc., 335 Ark. 356, 981 S.W.2d 91 (1998) (testimony \nof an interested party is taken as disputed as a matter of law); Flynn v. J. B. \nHunt Transp., 2012 Ark. App. 111, 389 S.W.3d 67 (2012) (\"[T]he \n\nPEREZ - H108467   18\n  \n \n \nuncorroborated testimony of an interested party is never to be considered \nuncontradicted.\").  The Commission is not required to believe the testimony \nof the claimant or any other witness, but may accept and translate into \nfindings of fact only those portions of the testimony that it deems worthy of \nbelief.  Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, 250 S.W.3d 263 \n(2007). \n The Majority has taken the claimant’s testimony at face value when \ndetermining that he was a credible witness and that his testimony was \ncorroborated by evidence of record.  I must agree with the ALJ’s \ndetermination that the claimant’s testimony was both contradictory and \nevasive.  (Opinion, P. 15).  The facts simply do not support the claimant’s \nallegations.  While the claimant had been employed with Cargill since 2018 \nas noted by the Majority, their opinion fails to note that the claimant had \nonly been working in the “chiller/deboner” station since May 2021, only a \nfew weeks prior to his alleged injury.  (Cl. Depo., Pp. 28-29). The claimant \nfailed to answer questions regarding this fact at the May 2022 hearing.  \nHowever, this timing had previously been addressed at the claimant’s \ndeposition. Id.  The claimant’s testimony, as accepted by the Commission, \nis that he hung 500 turkeys per hour, alternating between hanging them by \ntheir heads and by their feet (Cl. Depo., P. 24).  This, to quote the ALJ, is \n“contradictory to reason,” and is not logical or reasonable.  The testimony \n\nPEREZ - H108467   19\n  \n \n \nalso revealed the claimant’s job involved both working in the chiller hanging \nturkeys and deboning and that these activities rotated each hour throughout \nthe day.  (Tr., P. 8). The fact that his job duties alternated each hour \nthroughout the day is proof that his work was not rapid and repetitive.  \n The record simply does not support the claimant’s contentions.  \nBetween July 7 and August 17, 2021, the claimant visited Cargill nursing \nstaff on seven occasions.  (Cl. Ex. 1, pp. 1-27).  Initially, medical staff noted \nthat there was no bruising or swelling and only ice treatment was \nrecommended. Id. at P. 2.  In fact, the only notable issues appear to have \nbeen degenerative. Id. at P. 4.  At his subsequent appointment on July 26, \n2021, the claimant reported not working from July 21, 2021 to July 26, \n2021.  The claimant testified that he woke up with a bruise and could point \nto no specific cause of the bruise except he thought it was related to his \narm being swollen.  (Tr., Pp. 24-25).  There is no medical proof to support \nthis allegation.  In fact, at the time the bruise was reported, it appeared to \nbe “2 to 3 days old,” although the claimant had not worked for the previous \nfive days as noted above and was located on the right side of his ribs, not, \nas he testified, on his back at his shoulder blade.  (Cl. Ex. 1, pp. 19, 23).  \nSince the bruise did not appear until approximately one month after the \ndate of the accident, it should be given no weight.  Due to the nature, \nlocation, and timing of this bruise it defies logic to consider it as evidence \n\nPEREZ - H108467   20\n  \n \n \nsupporting a gradual onset injury or being an objective medical finding that \nwould support an award of benefits. \n In my review of the facts of this case, the questions of fact presented \nby the claimant’s testimony cannot be supported by the evidence, logic or \nreason.  The claimant appears evasive in his testimony, failing to answer \neven basic questions regarding when, where and how his injury occurred.  \nFrankly, the claimant failed to prove causation in this matter.  It is for this \nreason that I respectfully dissent.   \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":30201,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H108467 SAMUEL PEREZ, EMPLOYEE CLAIMANT CARGILL, INC., EMPLOYER RESPONDENT OLD REPUBLIC INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 24, 2023","outcome":"denied","outcomeKeywords":["denied:1"],"injuryKeywords":["shoulder","repetitive","back","neck"],"fetchedAt":"2026-05-19T22:29:46.575Z"},{"id":"alj-H203387-2023-03-23","awccNumber":"H203387","decisionDate":"2023-03-23","decisionYear":2023,"opinionType":"alj","claimantName":"Billg Doerflinger","employerName":"Metro Aviation Inc","title":"DOERFLINGER VS. METRO AVIATION INC. AWCC# H203387 MARCH 23, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/DOERFLINGER_BILLG_H203387_20230323.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"DOERFLINGER_BILLG_H203387_20230323.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H203387 \n \nBILL DOERFLINGER, EMPLOYEE   CLAIMANT \n \nMETRO AVIATION INC., EMPLOYER RESPONDENT \n \nGALLAGHER BASSETT SERVICES INC, .INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MARCH 23, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant appearing pro se. \n \nRespondents are represented RICK BEHRING, JR., Attorney, Little Rock, Arkansas \n \nOPINION/ORDER \n \n On  May 5, 2022, claimant filed Form AR-C, alleging a compensable injury on November 12, \n2021. Claimant was not represented by an attorney when the AR-C was filed, and is still pro se.   \nOn November 29, 2022, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time. A hearing on  respondent’s Motion to Dismiss was scheduled for \nMarch  16,  2023.   Notice of  the  scheduled  hearing was  sent  to  claimant  by certified  mail at  the  last \nknown address in the Commission’s file.  The notice was delivered to claimant on January 17, 2023.   \nClaimant did not respond to respondent’s motion but did appear in person at the hearing on March \n16, 2023. Claimant understood that the requested dismissal would be without prejudice.  \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing  has  been  made  in  this file.  After my review of the Respondent’s motion, the claimant’s \ntestimony  at  the  hearing  as  well  as  all  other  matters  properly  before  the  Commission,  I  find  that \n\nDoerflinger-H203387 \n \n2 \n \nRespondent’s Motion to Dismiss this claim should be and hereby is granted.  This dismissal is pursuant \nto Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2080,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203387 BILL DOERFLINGER, EMPLOYEE CLAIMANT METRO AVIATION INC., EMPLOYER RESPONDENT GALLAGHER BASSETT SERVICES INC, .INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MARCH 23, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Wash...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:09:48.989Z"},{"id":"alj-H010556-2023-03-23","awccNumber":"H010556","decisionDate":"2023-03-23","decisionYear":2023,"opinionType":"alj","claimantName":"Shanna Shelton","employerName":"Crestpark Stuttgart LLC","title":"SHELTON VS. CRESTPARK STUTTGART LLC AWCC# H010556 & H205950 MARCH 23, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SHELTON_SHANNA_H010556_H205950_20230323.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHELTON_SHANNA_H010556_H205950_20230323.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM Nos H010556 & H205950 \n \nSHANNA SHELTON, EMPLOYEE        CLAIMANT \n \nCRESTPARK STUTTGART LLC, EMPLOYER              RESPONDENT  \n \nARK SELF-INSURANCE TRUST/CCMSI  \nCARRIER/TPA                   RESPONDENT \n  \n \nOPINION FILED MARCH 23, 2023 \n \nHearing before Administrative Law Judge JayO. Howe in Little Rock, Pulaski \nCounty, Arkansas, on March 22, 2023. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by Worley, Wood & Parrish, P.A. Ms. Melissa Wood \nappeared. \nSTATEMENTS OF THE CASE \n A hearing was held in the above-styled claims on March 22, 2023, on the \nrespondents’ Motion(s) to Dismiss for failure to prosecute under Arkansas Workers’ \nCompensation Commission (AWCC) Rule 099.13.  The claims involve alleged workplace \ninjuries sustained on or about October 5, 2020, and August 13, 2022, for Claims H010556 \nand H205950, respectively. Both claims stated occupational diseases related to exposure to \nCOVID-19.   \nAs evidenced in Respondents’ Exhibit No 1, admitted into the record without \nobjection, several forms were filed with the Commission regarding either or both claims. \nClaimant filed a Form AR-C for Claim H205950 on August 19, 2022. The respondents \ndenied compensability by way of a Form AR-2 dated August 29, 2022. On September 12, \n2022, the Commission received a letter from the claimant stating, “I Shanna Shelton do \nwant to appeal my working [sic] compensation case & do agree [sic?] with the decision!” The \n\nSHELTON- H010556 & H205950 \n2 \n \nfile reflects a September 28, 2022, memorandum from the AWCC Legal Advisor Division \nthat notes an effort to mediate the claims. The parties met on October 26, 2022, but per the \nform AR-R dated the same day, no resolution was achieved.  \nSubsequently, a Preliminary Notice and Pre-hearing Questionnaire were sent to the \nclaimant, directing Questionnaire responses and exhibits to be filed no later than \nNovember 23, 2022. The Commission received no responsive documents or communications. \nThe respondents then moved for dismissal under AWCC Rule 099.13 on January 11, 2023. \nThe Commission sent notice of that motion to the claimant on January 19, 2023, directing \nany written response to be filed within twenty (20) days. The files evidence no such \nresponsive documents. A hearing on the dismissal was set for March 22, 3023, and notice of \nthe same was sent to the claimant on February 21, 2023. \nAs noted above, the claimant failed to appear for the March 22, 2023, hearing. Ms. \nWood appeared for the respondents, presenting argument and evidence of the claimant’s \nfailure to diligently prosecute her claims and her failure to submit a bona fide request for a \nhearing on any matter ripe for adjudication since the filing of the AR-C. Indeed, my review \nof the papers evidences the same. \n After a review of the records before me as a whole, to include all evidence properly \nbefore the Commission, and having had an opportunity to hear the statements of the \nrespondents’ attorney, to which there was no rebuttal or resistance on behalf of the \nclaimant, there is no alternative but to find that the Motion(s) to Dismiss should be granted \nat this time for the claimant’s failure to prosecute her claim and that the matter should be \ndismissed without prejudice. \nORDER \n Dismissal of AWCC Claim Nos H010556 & H205950 is hereby be granted. These \nclaims are dismissed without prejudice.   \n \nSO ORDERED. \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3564,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM Nos H010556 & H205950 SHANNA SHELTON, EMPLOYEE CLAIMANT CRESTPARK STUTTGART LLC, EMPLOYER RESPONDENT ARK SELF-INSURANCE TRUST/CCMSI CARRIER/TPA RESPONDENT OPINION FILED MARCH 23, 2023 Hearing before Administrative Law Judge JayO. Howe in Little Rock, Pulaski Co...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:09:51.047Z"},{"id":"alj-H208605-2023-03-22","awccNumber":"H208605","decisionDate":"2023-03-22","decisionYear":2023,"opinionType":"alj","claimantName":"Ronald Espinoza","employerName":"Jacq’rod Construction, Inc","title":"ESPINOZA VS. JACQ’ROD CONSTRUCTION, INC. AWCC# H208605 MARCH 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ESPINOZA_RONALD_H208605_20230322.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ESPINOZA_RONALD_H208605_20230322.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H208605 \n \nRONALD D. GARCIA ESPINOZA, Employee                                                 CLAIMANT                         \n \nJACQ’ROD CONSTRUCTION, INC., Employer                                       RESPONDENT                         \n \nFIRSTCOMP/MARKEL SERVICES, Carrier/TPA                                     RESPONDENT                         \n \n \n \n OPINION/ORDER FILED MARCH 22, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant  represented  by  MARK  ALAN  PEOPLES,  Attorney,  Little  Rock,  Arkansas; \nalthough not appearing at hearing. \n \nRespondents represented by RANDY P. MURPHY, Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n  \n This case comes on for review following a hearing on a Joint Motion to Dismiss.   \n On  January  24,  2023,  the  parties  filed  a  Joint  Petition  to  Dismiss  indicating  that \nclaimant had decided not to pursue his workers’ compensation claim and was agreeing \nto a dismissal.  A hearing was scheduled on the motion for March 15, 2023.  Notice of the \nhearing was sent to claimant by certified mail.  Claimant did not appear at the hearing \nand his attorney waived his appearance. \n After my review of the Joint Motion to Dismiss, and all other matters properly before \nthe Commission, I find that the motion should be and hereby is granted.  This dismissal \nis pursuant to Commission  Rule 099.13 and it is without prejudice. \n \n\nEspinoza – H208605 \n \n2 \n \nIT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":1695,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208605 RONALD D. GARCIA ESPINOZA, Employee CLAIMANT JACQ’ROD CONSTRUCTION, INC., Employer RESPONDENT FIRSTCOMP/MARKEL SERVICES, Carrier/TPA RESPONDENT OPINION/ORDER FILED MARCH 22, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springda...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:09:42.711Z"},{"id":"alj-H010322-2023-03-22","awccNumber":"H010322","decisionDate":"2023-03-22","decisionYear":2023,"opinionType":"alj","claimantName":"Dwayne Armstrong","employerName":"Shearers Foods LLC","title":"ARMSTRONG VS. SHEARERS FOODS LLC AWCC# H010322 MARCH 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Armstrong_Dwayne_H010322_20230322.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Armstrong_Dwayne_H010322_20230322.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H010322 \n \n \nDWAYNE P. ARMSTRONG, EMPLOYEE CLAIMANT \n \nSHEARERS FOODS LLC, \n EMPLOYER RESPONDENT \n \nTRAVELERS INDEMN. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED MARCH 22, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on  March 17, 2023, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  March  17,  2023,  in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nWithout objection, the Commission file on this claim has been incorporated herein \nin  its  entirety  by  reference.  Admitted  into  evidence  was  Respondents’  Exhibit  1, \nforms,  pleadings,  and  correspondence related  to  the  claim,  consisting  of 48 \nnumbered pages. \n\nARMSTRONG – H010322 \n2 \n \n The record reflects the following procedural history: \n On December 19, 2020, a Form AR-1 was filed in this case, reflecting that \nClaimant  purportedly  sustained  a  strain  injury  while  lifting  pallets  at  work  on \nFebruary  14,  2020.    Per  the  Form  AR-2  that  was  filed on December 21,  2020, \nRespondents  controverted  the  claim  in  its  entirety.    On  December  14,  2020, \nClaimant  filed  a  Form  AR-C,  requesting  a  full  range  of  initial  and  additional \nbenefits.    No  hearing  request  accompanied  this  filing.    Respondents’  counsel \nmade an entry of appearance on February 22, 2021.  The evidence indicates that \ndiscovery was propounded to Claimant, but went unanswered. \n On June 4, 2021, Respondents filed their first Motion to Dismiss.  Therein, \nthey alleged that dismissal of the claim was warranted under AWCC R. 099.13 for \n“lack of prosecution.”  On June 8, 2021, a letter from the Commission was sent to \nClaimant, asking for a response to the motion within 20 days.  This letter was sent \nby both first-class and certified mail to the address for Claimant listed on his Form \nAR-C.    While  the  certified  letter  was  returned  to  the  Commission,  unclaimed,  on \nJuly  6,  2021,  the  first-class  letter  was  never  returned.    Regardless,  no  response \nwas forthcoming from him. \n On  June 30,  2021  ,  a  hearing  was  scheduled on  Respondents’  motion  for \nJuly 29, 2021, at 9:30 a.m. at the Commission in Little Rock.  The hearing notice \nwas  sent  to  Claimant  by  certified  and  first-class  mail  to  the  same  address  as \nbefore.  As before, the certified letter was returned to the Commission, unclaimed, \n\nARMSTRONG – H010322 \n3 \n \non July 20,  2021,  while  the  first-class  letter  was  never  returned.    The  evidence \nthus preponderates that Claimant received notice of the hearing. \n The  hearing  proceeded  as  scheduled  on  July  29,  2021.    Again,  Claimant \nfailed to appear at the hearing.  But Respondents appeared through counsel and \nargued for dismissal under § 11-9-702(a)(4) and Rule 13.  Thereafter, on July 29, \n2021, I issued an opinion in which I dismissed the claim under Rule 13. \n Subsequently, Sheila F. Campbell, Esq., entered an appearance before the \nCommission on behalf of Claimant.  She made a hearing request on his behalf on \nMarch 10, 2022.  The file was reassigned to me on March 11, 2022; and on March \n14, 2022, I sent prehearing questionnaires to the parties.  Claimant filed a timely \nresponse  thereto  on  April  5,  2022;  and  Respondents  followed  suit  on  April  7, \n2022.     A   prehearing   telephone   conference   took   place  on   June  20,   2022.  \nFollowing the conference, the file was returned to the Commission’s general files \nby agreement of the parties in order to allow for the completion of discovery. \n The  next  action  to  be  taken  in  connection  with  this  claim  took  place  on \nOctober  14,  2022,  when  Respondents  filed  another  Motion  to  Dismiss.    Therein, \nthey alleged that “Claimant has taken no action proceed with this matter and has \nfailed to provide full and complete responses to the interrogatories originally sent \n[i]n February 2021.”  The file was reassigned to me on October 18, 2022; and on \nOctober  20,  2022,  my  office  sent  a  letter  to  Claimant’s  counsel,  asking  for  a \nresponse to the Motion to Dismiss within 20 days.  However, when no response to \nthe  motion  was  forthcoming,  on  December  29,  2022,  I  scheduled  a  hearing \n\nARMSTRONG – H010322 \n4 \n \nthereon  for  February  17,  2022.  In  addition  to  the  notices  provided  to  the \nattorneys, I sent a copy of the hearing notice by both certified  and first-class mail \nto  Claimant  at  the  Newport,  Arkansas  address  listed  for  him  on  his  Form  AR-C.  \nHowever, the certified letter was returned, unclaimed, on January 23, 2023.  The \nfirst-class letter was not returned.  But Campbell on January 26, 2023, gave a new \naddress  for  him  in  Rochester,  New  York.    Coupled  with  that  were  motions  to \nwithdraw  from  her  representation  of  him,  and  to  continue  the  February  17, \nhearing.    In  an  order  entered  on  February  9,  2023,  I  granted  the  Motion  to \nWithdraw  under  AWCC  Advisory  2003-2,  and  continued  the  hearing  until  March \n17, 2023, at 11:30 a.m.  This order was sent to Claimant at an incorrectly-spelled \naddress  in  Rochester.    Unsurprisingly,  both  the  certified  and  first-class  letters \nwere returned to the Commission.  This was corrected; and they were re-sent on \nMarch 3, 2023.  Per the United States Postal Service, Claimant did not claim the \ncertified  letter  by  the  time  of  the  hearing.    However,  the  first-class  letter  was not \nreturned.    Moreover,  Claimant  (having  apparently  gotten  the  notice)  sent  a  letter \nto the Commission from the same Rochester address on March 6, 2023, stating: \nTo Whom It May Concern: \n \nI  am  the  Claimant  in  the  above  referenced  case.  I  am  submitting \nthis  letter  to  inform  you  that  I  no  longer  want  to  pursue  this  case \nand  want  to  dismiss  my  claim  for  Worker’s  [sic]  Compensation \nbenefits. \n \n/s/ Dwayne Armstrong \n \n\nARMSTRONG – H010322 \n5 \n \n The  hearing  took place  as  scheduled  on  March  17,  2023.    Unsurprisingly, \nClaimant  failed  to  appear.    But  Respondents  appeared  through  counsel  and \nmoved for dismissal under AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  to  include  documents  and  other \nmatters  properly  before  the  Commission,  the  following  findings  of  fact and \nconclusions  of  law  are  hereby  made  in  accordance  with  Ark.  Code  Ann.  §  11-9-\n704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis matter. \n2. The parties were provided reasonable notice of the Motion to Dismiss and \nof the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute  his \nclaim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby  dismissed \nwithout prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested–dismissal of this \nmatter–by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \n\nARMSTRONG – H010322 \n6 \n \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit of it (including appearing at the March 17, 2023, hearing to argue against \nits  dismissal)  since  the  June  20,  2022,  prehearing  conference.    Thus,  the \nevidence preponderates that dismissal is warranted under Rule 13. \n That  leaves  the  question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.   Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(emphasis  added)(citing Professional  Adjustment  Bureau  v.  Strong,  75  Ark.  249, \n629  S.W.2d  284  (1982)).  Respondents  at  the  hearing  asked  for  a  dismissal \nwithout  prejudice.    Based  on  the  above  authorities, I  agree  and  find  that  the \ndismissal of this claim should be and hereby is entered without prejudice.\n1\n \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983). \n\nARMSTRONG – H010322 \n7 \n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":9762,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H010322 DWAYNE P. ARMSTRONG, EMPLOYEE CLAIMANT SHEARERS FOODS LLC, EMPLOYER RESPONDENT TRAVELERS INDEMN. CO., CARRIER RESPONDENT OPINION FILED MARCH 22, 2023 Hearing before Administrative Law Judge O. Milton Fine II on March 17, 2023, in Jonesboro, Craighead ...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["strain"],"fetchedAt":"2026-05-19T23:09:44.777Z"},{"id":"alj-H204518-2023-03-22","awccNumber":"H204518","decisionDate":"2023-03-22","decisionYear":2023,"opinionType":"alj","claimantName":"Beverly Richard","employerName":"Carelink","title":"RICHARD VS. CARELINK AWCC# H204518 MARCH 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/RICHARD_BEVERLY_H204518_20230322.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"RICHARD_BEVERLY_H204518_20230322.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM No H204518 \nBEVERLY RICHARD, EMPLOYEE       CLAIMANT \n \nCARELINK, EMPLOYER                  RESPONDENT  \n \nAGING SERVICES FUND/RISK MANAGEMENT  \nRESOURCES,  CARRIER/TPA                   RESPONDENT \n  \nOPINION FILED MARCH 22, 2023 \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on March 22, 2023. \n \nClaimant is represented pro se and failed to appear. \n \nRespondents are represented by  Worley, Wood & Parrish, P.A. Ms. Melissa Wood \nappeared. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on March 22, 2023, on the respondents’ \nMotion to Dismiss for failure to prosecute pursuant to Arkansas Code Ann. § 11-9-702 of the \nArkansas Workers’ Compensation (AWCC) Act and AWCC Rule 099.13.  The claim involves \nan alleged workplace injuries sustained on or about January 12, 2022.   \nAs evidenced in Respondents’ Exhibit No 1, admitted into the record without objection, \na Form AR-N was executed by the claimant on January 14, 2022. A First Report of Injury \nwas then prepared on January 18, 2022. The Commission received a Form AR-C on June, 23, \n2022. At the time of the AR-C filing, the claimant was represented by Ms. Laura Beth York, \nbut she was relieved as counsel by an Order from the Full Commission dated September 29, \n2022.   \nThe respondents filed the immediate motion for a dismissal, based on the claimant’s \nfailure  to  prosecute  her  case,  on  December  27,  2022.  The  motion  stated  that  the  claimant \nsought no bona fide request for a hearing in the six (6) months prior to the motion’s filing, \n\nRICHARD- H204518 \n2 \n \nthus making this matter appropriate for dismissal under ACA § 11-9-702 and AWCC Rule \n099.13. Notice of the respondents’ motion was sent to the claimant by the Commission on \nJanuary  3,  2023,  directing  a  written  response  to  the  motion  within  twenty  (20)  days.  No \nresponse was offered, and a hearing on the motion was set accordingly. \nAs  noted  above, the claimant failed  to  appear for the March  22,  2023,  hearing.  Ms. \nWood appeared for the respondents, presenting argument and evidence that more than six \n(6) months passed since the filing of the AR-C without any request for a hearing on an issue \nripe for adjudication. Indeed, my review of the file evidences the same. \n After  a  review  of  the  record  as  a  whole,  to  include  all  evidence  properly  before  the \nCommission,  and  having had  an  opportunity  to  hear  the  statements  of  the  respondents’ \nattorney, to which there was no rebuttal or resistance on behalf of the claimant, there is no \nalternative  but  to  find  that  the  Motion  to  Dismiss  should  be  granted  at  this  time  for  the \nclaimant’s failure to prosecute her claim  and  that  the matter  should be  dismissed without \nprejudice. \nORDER \n The  Motion  to  Dismiss AWCC Claim No  H204518  is  hereby  be  granted,  and  this \nmatter shall be dismissed without prejudice.   \nSO ORDERED. \n \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":3145,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM No H204518 BEVERLY RICHARD, EMPLOYEE CLAIMANT CARELINK, EMPLOYER RESPONDENT AGING SERVICES FUND/RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED MARCH 22, 2023 Hearing before Administrative Law Judge JayO. Howe in Little Rock, Pulaski County, Ark...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:09:46.835Z"},{"id":"alj-H205043-2023-03-21","awccNumber":"H205043","decisionDate":"2023-03-21","decisionYear":2023,"opinionType":"alj","claimantName":"Andres Flores-Maya","employerName":"Bfi Waste Services, LLC","title":"FLORES MAYA VS. BFI WASTE SERVICES, LLC AWCC# H205043 MARCH 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FLORES-MAYA_ANDRES_H205043_20230321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FLORES-MAYA_ANDRES_H205043_20230321.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H205043 \n \nANDRES FLORES MAYA,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nBFI WASTE SERVICES, LLC, \nEMPLOYER                                                                                                         RESPONDENT \n \nINDEMNITY INS. CO. Of NORTH AMERICA/ \nCCMSI, \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED MARCH 21, 2023 \n \nHearing conducted on Tuesday, March 21, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Andres Flores Maya, pro se, of Little Rock, Pulaski County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable William C. (Bill) Frye, Little Rock, Pulaski \nCounty, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n     A hearing was conducted on Tuesday, March 21, 2023, to determine whether this claim should \nbe  dismissed  for  lack  of  prosecution  pursuant  to Ark.  Code  Ann.  §  11-9-702(a)(4)  (2022  Lexis \nReplacement) and Commission Rule 099.13 (2022 Lexis Replacement). \n     By  letter  dated  June  24,  2022,  which  was  filed  with  the  Commission  on  July  26,  2022,  the \nclaimant specifically advised he wished to withdraw his workers’ compensation claim filed with \nthe Commission on June 14, 2022. In his letter the claimant made it abundantly clear this decision \nwas his and his alone, and that he preferred to use his personal doctor for treatment of his condition.  \nThereafter, the claimant’s attorney at the time, the Honorable Mark Alan Peoples, filed a motion \n\nAndres Flores Maya, AWCC No. H205043 \n2 \n \nwith  the  Commission  requesting  the  Commission  allow  him  to  withdraw  as  the  claimant’s \nattorney, which motion the Commission unanimously granted by Order dated November 18, 2022. \n      By letter filed with the Commission on January 16, 2023, the respondents filed a letter motion \nto dismiss for lack of prosecution requesting the Commission dismiss this claim without prejudice \nfor lack of prosecution. Pursuant to the applicable law, both the claimant and his former attorney \nof record were mailed a copy of the respondents’ letter motion to dismiss and the subject hearing \nnotice  in  advance  of  the  hearing.  Once  again, the claimant’s former attorney advised the ALJ’s \noffice via email dated January 20, 2023, that the Commission had unanimously granted his request \nto withdraw some three (3) months prior by Commission order dated November 18, 2022.  \n     The Commission’s file reflects the claimant’s last communication with the Commission was \nwhen he spoke to legal advisor on March 8, 2023. The Commission’s legal advisor explained the \nmotion to dismiss process, and told him the dismissal would more likely be without prejudice to \nthe claim’s refiling. \n     The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n     Consistent  with Ark.  Code  Ann.§  11-9-702(a)(4),  as  well  as  our  court  of  appeals’  ruling  in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim at this time. \n\nAndres Flores Maya, AWCC No. H205043 \n3 \n \n     Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having had the opportunity to be represented by excellent, experienced, highly ethical \nlegal counsel, by letter dated June 24, 2022, which was filed with the Commission on July \n26, 2022, the claimant specifically advised he wished to withdraw the subject claim. The \nCommission allowed the claimant’s attorney to withdraw as her counsel by order dated and \neffective November 18, 2022.  \n \n3. After  having  been  mailed due and legal  notice of both  the respondents’ motion  and the \nsubject hearing date, the claimant neither inquired concerning or responded to the motion \nin any way; and he did not appear, nor cause anyone to appear on his behalf, at the subject \nhearing.  Therefore,  the  claimant  is  deemed  to  have  withdrawn  and/or  abandoned  the \nsubject  claim,  and  to  have  waived  his right  to  a  hearing  on  the  respondents’  motion  to \ndismiss without prejudice. \n \n4. The claimant has to date failed and/or refused to request a hearing, and he has failed \nand/or refused to take any action(s) whatsoever to prosecute his claim. \n \n5. Therefore, the  respondents’ letter  motion  to  dismiss  without  prejudice  filed  January  16, \n2023, is GRANTED; and this claim hereby is dismissed without prejudice to its refiling \npursuant to the deadlines prescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and \nCommission Rule 099.13. \n \n     This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf, from refiling the claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n     If they have not already done so, the respondents hereby are ordered to pay the court \nreporter’s invoice within twenty (20) days of their receipt thereof. \n     IT IS SO ORDERED. \n                                                            \n____________________________                                                                      \n                                                                        Mike Pickens \n  MP/mp                                                                      Administrative Law Judge \n\nAndres Flores Maya, AWCC No. H205043 \n4 \n \n \n \n \nMP/mp \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":6641,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205043 ANDRES FLORES MAYA, EMPLOYEE CLAIMANT BFI WASTE SERVICES, LLC, EMPLOYER RESPONDENT INDEMNITY INS. CO. Of NORTH AMERICA/ CCMSI, CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED MARCH 21, 2023 Hearing conducted on Tuesday, M...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:09:36.457Z"},{"id":"alj-H109975-2023-03-21","awccNumber":"H109975","decisionDate":"2023-03-21","decisionYear":2023,"opinionType":"alj","claimantName":"Christina Wilson","employerName":"Baxter Healthcare Corp","title":"WILSON VS. BAXTER HEALTHCARE CORP. AWCC# H109975 MARCH 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WILSON_CHRISTINA_H109975_20230321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WILSON_CHRISTINA_H109975_20230321.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H109975 \n \nCHRISTINA N. WILSON          CLAIMANT \n \nBAXTER HEALTHCARE CORP., Employer       RESPONDENT \n \nLIBERTY MUTUAL / HELMANS \nMANAGEMENT SERVICES, CARRIER/TPA       RESPONDENT  \n \nOPINION FILED MARCH 21, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy on March 15, 2023, in \nMountain Home, Baxter County, Arkansas. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by  their  attorney,  Mr. Garrett O’Brien, of Memphis, \nTennessee. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  March  15,  2023,  in  Mountain \nHome, Arkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant filed a Form AR-C on December 21, 2021, claiming that \nshe injured her right knee in a work-related accident and that she was scheduled to have \nher knee repaired by a procedure performed by Dr. O’Malley in Little Rock, Arkansas, on \nDecember 30, 2022.  The respondent, Baxter Healthcare Corporation, filed a First Report \nof Injury on January 4, 2021, and a Form AR-2 on January 5, 2022, where they did not \ncontrovert  the  claim.   The  claimant  reached maximum medical  improvement on March \n24, 2021, and received medical benefits provided by Dr. O’Malley, although no change of \nphysician form was filed by the claimant and Dr. O’Malley was not the original treating \nphysician.  The  claimant  only  sought  medical  care  and  payment  of  any  outstanding \n\nWILSON – H109975 \n \n2 \n \nmedical  expenses.    A  Motion  to  Dismiss  for  Failure  to  Prosecute  was  filed  by  the \nrespondents on or about December 21, 2022.  \nAn  appropriate  notice  setting  this  matter  for  a  hearing on March  15,  2023,  was \nprovided, and the claimant did not file an objection or appear at the hearing in Mountain \nHome, Arkansas.  At the time of the hearing, Garrett O’Brien appeared on behalf of the \nrespondents and asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, this matter should be dismissed for failure to prosecute pursuant to Ark. Code \nAnn. § 11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2790,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109975 CHRISTINA N. WILSON CLAIMANT BAXTER HEALTHCARE CORP., Employer RESPONDENT LIBERTY MUTUAL / HELMANS MANAGEMENT SERVICES, CARRIER/TPA RESPONDENT OPINION FILED MARCH 21, 2023 Hearing before Administrative Law Judge James D. Kennedy on March 15, 2023, i...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:09:38.526Z"},{"id":"alj-H103187-2023-03-21","awccNumber":"H103187","decisionDate":"2023-03-21","decisionYear":2023,"opinionType":"alj","claimantName":"Andrea Woods","employerName":"Pulaski County Special School Dist","title":"WOODS VS. PULASKI COUNTY SPECIAL SCHOOL DIST. AWCC# H103187 MARCH 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WOODS_ANDREA_H103187_20230321.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WOODS_ANDREA_H103187_20230321.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H103187 \n \nANDREA WOODS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nPULASKI COUNTY SPECIAL SCHOOL DIST., \nEMPLOYER                                                                                                         RESPONDENT  \n \nARK. SCHOOL BOARDS ASS’N WORKERS’ \nCOMPENSATION TRUST/ARK. SCHOOL BDS. ASS’N \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE  \nFILED MARCH 21, 2023 \n \n \nHearing conducted on Wednesday, January 12, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge  (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe  claimant  was  represented  by  the  Honorable  Willard  Proctor,  Jr.,  Proctor  Law  Firm,  Little \nRock, Pulaski County, Arkansas.  \n \nThe  respondents  were  represented  by  the  Honorable  Carol  Lockhard  Worley,  Worley,  Wood  & \nParrish, Little Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A  hearing  was  conducted  on  Wednesday,  January  11,  2023,  to  determine  whether  this \nclaim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) \n(2022)  Lexis  Replacement)  and  Commission  Rule  099.13  (2022  Lexis  Repl.).  The  respondents \nfiled a motion to dismiss with the Commission on November 18, 2022, requesting this claim be \ndismissed without prejudice for lack of prosecution. (Respondents’ Exhibit 1). \n           In accordance with applicable Arkansas law, the claimant was mailed due and proper legal \nnotice of both the respondents’ motion to dismiss as well as a copy of the hearing notice at his \ncurrent addresses of record via the United States Postal Service (USPS), First Class Certified Mail,  \n\nAndrea Woods, AWCC No. H103187 \n \n2 \n \nReturn  Receipt  Requested,  which  she  received  as  is  evidenced  by  Commission  Exhibit  1.  The \nclaimant and her attorney appeared in person at the hearing and objected to the respondents’ \nmotion to dismiss. The claimant’s attorney advised he intended to communicate and work with the \nrespondents’ attorney in order attempt to resolve some outstanding health insurance liens in order \nthat the parties may enter into settlement negotiations. The claimant’s attorney advised he intended \nto request a hearing if the parties’ were unable to resolve the outstanding issues.  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter by reference. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively demonstrates the claimant has \nneither requested a hearing nor taken any action as of the hearing date to prosecute her claim. \n            In  an  Amended  Opinion  and  Order  filed  January  19,  2023  (the  Amended  Opinion  and \nOrder), at the request of the claimant and her attorney the ALJ held a decision on the respondents’ \nmotion to dismiss for lack of prosecution in abeyance for a period of 60 days – or until Monday, \nMarch 13, 2023, since 6o days from the hearing date fell on a Sunday. The ALJ explained in the \nsubject order that the additional 60-day period was allowed in order to provide the parties any and \nall additional information they required in order to, “attempt to resolve any and all outstanding \nliens, and/or other issues, if any remain.” (Amended Opinion and Order filed January 19, 2023, \n“Findings of Fact and Conclusions of Law”, Paragraphs 1,2, and 3).  \n\nAndrea Woods, AWCC No. H103187 \n \n3 \n \n          The Amended Opinion and Order went on to state that if the claimant and/or her attorney \ndid not request a hearing within five (5) days of the expiration of the 60-day time period and advise \nboth the Commission and the respondents in writing what specific issue(s) she/they believed were \nripe for a hearing, the ALJ would grant the respondents’ motion to dismiss for lack of prosecution \nwithout prejudice filed November 18, 2022, without the necessity of the respondents filing another \nmotion,  and  without  the  Commission  holding  another  hearing  on  the  underlying  motion.  (Id. at \nParagraph 4).   \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, and as I advised the parties on the record at the hearing, I hereby make \nthe following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1.      The Commission has jurisdiction of this claim. \n \n      2.        Neither the claimant nor her attorney of record have, within five (5) days after the \n                 expiration of the aforementioned mutually agreed 60-day time-period, requested \n                 a hearing, in writing, advising both the Commission and the respondents what \n                 specific issue(s) she/they believe are ripe for a hearing in compliance with the \n                 Amended Opinion and Order filed January 19, 2023.  \n \n      3.       The preponderance of the evidence reveals the claimant has to date not requested a \n                 hearing within the last six (6) months, nor has she taken steps to actively prosecute \n                 her claim. \n                \n4.       Therefore, the respondents’ motion to dismiss without prejudice filed November \n          18, 2022, hereby is GRANTED; and this claim hereby is dismissed without prejudice \n          to its refiling pursuant to the deadlines prescribed by Ark. Code Ann. Section 11-9- \n          702(a) and (b), and Commission Rule 099.13. \n  \n           \n          This Order shall not be construed to prohibit the claimant, his attorney, any attorney he \nmay retain in the future, or anyone acting legally and on his behalf, from refiling the claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n\nAndrea Woods, AWCC No. H103187 \n \n4 \n \n \n \n           If  they  have  not already done so, the respondents shall pay the court reporter’s invoice \nwithin twenty (20) days of the filing of this opinion and order. \n          IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Mike Pickens \n                                                                                               Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":7135,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H103187 ANDREA WOODS, EMPLOYEE CLAIMANT PULASKI COUNTY SPECIAL SCHOOL DIST., EMPLOYER RESPONDENT ARK. SCHOOL BOARDS ASS’N WORKERS’ COMPENSATION TRUST/ARK. SCHOOL BDS. ASS’N INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILE...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:09:40.587Z"},{"id":"full_commission-G203180-2023-03-17","awccNumber":"G203180","decisionDate":"2023-03-17","decisionYear":2023,"opinionType":"full_commission","claimantName":"Kristy Adams","employerName":"Stone County Nursing & Rehab","title":"ADAMS VS. STONE COUNTY NURSING & REHAB AWCC# G203180 MARCH 17, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Adams_Kristy_G203180_20230317.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Adams_Kristy_G203180_20230317.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  G203180 \n \nKRISTY N. ADAMS, EMPLOYEE                                                          CLAIMANT \n \nSTONE COUNTY NURSING & REHAB,  \nEMPLOYER RESPONDENT NO. 1 \n \nRISK MANAGEMENT RESOURCES,   \nINSURANCE CARRIER/TPA RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND RESPONDENT NO. 2 \n \nOPINION FILED MARCH 17, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” SPENCER, \nAttorney at Law, Mountain Home, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE KENNETH P. “CASEY” \nCASTLEBERRY, Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID L. PAKE, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal and the claimant cross-appeals an opinion and order \nof the Administrative Law Judge filed July 26, 2022.  In said order, the \nAdministrative Law Judge made the following findings of fact and conclusions of \nlaw: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim.  \n\nADAMS - G203180  2\n  \n \n \n \n2.  That an employer/employee relationship existed on November 21, 2011, \nwhen the claimant sustained a compensable injury to her lower back, and \nrespondent #1 accepted the claim as medical only.  \n \n3.  The  claimant  earned  an  average  weekly  wage  of  $627.16  with  a \nTTD/PPD rate of $418.00/$314.00.  \n \n4.  The  respondents  #1  have  paid  the  sum  of  $30,066.71  in  additional \nmedical expenses and $12,717.00 in PPD.  \n \n5.  That the claimant was assigned a five percent (5%) rating by Dr. Ricca.  \n \n6.  That the claimant was assigned a nine percent (9%) disability rating to \nthe body as a whole by Dr. Mason.  \n \n7.  That  there  is  no  alternative  but  to  find  that  the  claimant  has  failed  to \nsatisfy the required burden of proof to prove, by a preponderance of the \nevidence, that she is entitled to additional medical treatment.  \n \n8.  That the claimant has satisfied the burden of proof, by a preponderance \nof  the  evidence,  that  she  is  entitled  to  a  nine  percent  (9%)  impairment \nrating to the body as a whole.  \n \n9.  That  the  claimant  has  failed  to  satisfy  the  burden  of  proof,  by  a \npreponderance of the evidence, that her claim for PTSD is compensable.  \n \n10.   That the claimant has failed to satisfy the required burden of proof that    \n  she is entitled to permanent and total disability, but in the alternative,  \n  has satisfied the burden of proof, by a preponderance of the evidence,  \n  that she is entitled to an Award of wage-loss in the amount of fourteen    \n  percent (14%).  \n \n11.  The claimant is entitled to attorney fees pursuant to Ark. Code Ann. §11- \n 9-715.  This Award shall bear interest at the legal rate pursuant to Ark.   \n Code Ann. §11-9-809.  \n \n12.  If not already paid, the respondents are ordered to pay for the cost of the  \n transcript forthwith. \n \n\nADAMS - G203180  3\n  \n \n \n We have carefully conducted a de novo review of the entire record herein \nand it is our opinion that the Administrative Law Judge's decision is supported by \na preponderance of the credible evidence, correctly applies the law, and should \nbe affirmed.  Specifically, we find from a preponderance of the evidence that the \nfindings made by the Administrative Law Judge are correct and they are, \ntherefore, adopted by the Full Commission.  \n We therefore affirm the decision of the Administrative Law Judge, including \nall findings of fact and conclusions of law therein, and adopt the opinion as the \ndecision of the Full Commission on appeal. \n All accrued benefits shall be paid in a lump sum without discount and with \ninterest thereon at the lawful rate from the date of the Administrative Law Judge's \ndecision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 2012). \n The claimant’s attorney is entitled to fees for legal services in accordance \nwith Ark. Code Ann. § 11-9-715(a)(Repl. 2012).  For prevailing in part on appeal \nto the Full Commission, the claimant’s attorney is entitled to an additional fee of \nfive hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n    \n \n \n \n\nADAMS - G203180  4\n  \n \n \n IT IS SO ORDERED. \n \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton concurs and dissents. \nCONCURRING AND DISSENTING OPINION \nFor the reasons set forth below, I would affirm the ALJ’s determination that \nthe claimant is not entitled to additional medical treatment and did not prove she is \nentitled to permanent and total disability or treatment for PTSD.  However, I must \ndisagree with the Majority’s finding that the claimant is entitled to 14% wage loss \ndisability. \nThe claimant injured her back while working as a licensed practical nurse \nat Stone County Nursing and Rehab Center on November 21, 2011.  In his report \ndated February 27, 2012, Dr. Scott Schlesinger, a neurosurgeon, noted that he \nhad reviewed radiographs of the claimant’s lumbar spine.  (Cl. Med. Ex., Pp. 16-\n19).  Dr. Schlesinger found only degenerative changes; there was no fracture, \ndislocation, or instability. Id.  The claimant later obtained a change of physician \norder through the Commission and began seeing another neurosurgeon, Dr. \nGregory Ricca, on or about July 18, 2013.  (Cl. Med. Ex. P. 22).  Dr. Ricca \n\nADAMS - G203180  5\n  \n \n \ndetermined that surgery was not appropriate and found that claimant was at MMI \nas of June 12, 2014.  (Cl. Med. Ex. P. 35).  The claimant was assigned a 5% \npartial impairment rating to the body as a whole and was released to return to \nwork at medium duty. Id.  At her June 15, 2022 hearing, the claimant confirmed \nthat she received payments for the 5% impairment rating.  (Tr. P. 35).  The \nclaimant was eventually treated by Dr. Zach Mason, a neurosurgeon, who \nperformed a bilateral decompression foraminotomies at L4-L5 and L5-S1 on July \n19, 2017.  (Resp. Med. Ex., Pp. 59-60).  Dr. Mason assigned a 9% impairment \nrating to the body as a whole and returned the claimant to work at full duty, \nwithout restrictions as of October 5, 2017. (Resp. Med. Ex., Pp. 56-57). \nWhen a claimant has been assigned an anatomical impairment rating to \nthe body as a whole, the Commission may increase the disability rating and find a \nclaimant permanently disabled based on the wage-loss factors.  Lee v. Alcoa \nExtrusion, Inc., 89 Ark. App. 228, 201 S.W.3d 449 (2005).  The wage-loss factor is \nthe extent to which a compensable injury has affected the claimant's ability to \nearn a livelihood.  Enter. Prods. Co. v. Leach, 2009 Ark. App. 148, 316 S.W.3d \n253 (2009).  When determining wage-loss disability, the Commission should \nconsider, in addition to medical evidence and  the employee’s percentage of \npermanent physical impairment, the appellant's age, education, work experience, \nand other matters reasonably expected to affect his or her future earning capacity. \nArk. Code Ann. § 11-9-522(b)(1); Glass v. Edens, 233 Ark. 786, 346 S.W.2d 685 \n\nADAMS - G203180  6\n  \n \n \n(1961).  Other factors may include—but are not limited to—motivation to return to \nwork, post-injury earnings, credibility, and demeanor.  Curry v. Franklin Elec., 32 \nArk. App. 168, 798 S.W.2d 130 (1990).  A lack of interest in pursuing employment \nimpedes the assessment of the claimant's loss of earning capacity.  Logan Cnty. \nv. McDonald, 90 Ark. App. 409, 206 S.W.3d 258 (2005). The Commission may \nuse its own superior knowledge of industrial demands, limitations, and \nrequirements in conjunction with the evidence to determine wage-loss disability.  \nTaggart v. Mid Am. Packaging, 2009 Ark. App. 335, 308 S.W.3d 643 (2009). \nIn the present matter, the claimant’s medical history is extensive, and the \nparties submitted voluminous medical records.  Over a period approximately six \nyears, the claimant saw three neurosurgeons approved by the respondent carrier \nand a host of additional doctors either through the VA or her local family practice. \nHowever, between the time of the claimant’s injury and the date she reached \nmaximum medical improvement, one thing is clear—the claimant was never \nunable to work, and the claimant was in fact explicitly permitted to work by Drs. \nRicca and Mason at medium, moderate, or full duty on seven separate occasions \nbetween 2013 and 2017.  (Resp. Med Ex., Pp. 12, 20, 26, 33, 37, 57, 61). \nThe record reflects that although the claimant alleges that she cannot work, \nshe simply does not wish to work.  One visit note by Dr. Ricca, dated May 16, \n2017, reflects that after quitting work at her parents’ restaurant in October 2014 \nafter working for a month, the claimant had not sought any work.  (Resp. Med. \n\nADAMS - G203180  7\n  \n \n \nEx., P. 46).  This fact goes undisputed in the hearing transcript.  (See Tr., Pp. 21-\n22.)  Aside from “odd jobs here and there” and occasionally volunteering for a \nfriend that owns a store for gas money, the claimant has not worked regularly \nsince her 2011 injury despite being informed that she is capable of doing so.  (See \nId.; Tr., Pp. 30-31).  While the claimant stated at her 2022 hearing that she had \nleft her employment with the city of Fifty-Six in 2013 due in part to pain from her \ninjury, she previously stated in her deposition – taken a week after leaving that \nemployment – that she left due to a conflict over her wages and her decision to \nreturn to school full time.  (Resp. Ex. 2, P. 9). She did not deny this at the July \n2022 hearing. (Id. at Pp. 31-32). \nThe facts at hand mirror the findings in the case Rapley v. Lindsey Constr. \nCo., where the Arkansas Court of Appeals affirmed the Commission’s findings \nthat a claimant’s refusal to find appropriate employment can “block” full \nassessment of all of the factors in determining disability.  5 Ark. App. 31, 631 \nS.W.2d 844 (1982).  In Rapley, the claimant testified that he was a 33 year old \nman with a 15% anatomical rating which prevented him from continuing work as a \nwelder. Id.  However, the claimant had attended college for three years and held \nan associate’s degree in welding and had “made no real effort either to seek \nemployment in fields for which his education and experience might qualify him or \notherwise determine whether he was able to perform the duties of such other \npursuits.” Id.  For these reasons, the claimant was limited to his anatomical \n\nADAMS - G203180  8\n  \n \n \nimpairment rating. Id.  In short, a claimant’s “lack of interest in exploring \n[appropriate work] [is] an impediment to the commission’s full assessment of [her] \nloss of earning capacity.”  Oller v. Champion Parts Rebuilders, Inc., 5 Ark. App. \n307, 635 S.W.2d 276 (1982). \nThe claimant is a 40 year old woman with Associate Degrees in both \nPractical Nursing and Health Information Technology from Ozarka College.  She \nhas experience in varied fields, ranging from the medical field, office work, retail, \nto being in the Air Force.  While the claimant contends that she cannot find \nemployment with her Health Information Technology degree, there is no proof she \nhas used her education and experience in any attempt to find work within that field \nor any other suitable employment.  The claimant has not attempted to work since \nworking approximately one month at a store owned by her parents in October \n2014.  I find nothing in the record to support a finding of wage loss disability. The \nclaimant was released to full duty employment with no restrictions by Dr. Mason \nand should not be rewarded for her refusal to even try to return to work.  \nIt is for these reasons that I cannot agree that the claimant is entitled to \nwage loss disability in any amount and therefore respectfully dissent. \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":12180,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G203180 KRISTY N. ADAMS, EMPLOYEE CLAIMANT STONE COUNTY NURSING & REHAB, EMPLOYER RESPONDENT NO. 1 RISK MANAGEMENT RESOURCES, INSURANCE CARRIER/TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. ...","outcome":"affirmed","outcomeKeywords":["affirmed:1","granted:1"],"injuryKeywords":["back","lumbar","fracture"],"fetchedAt":"2026-05-19T22:29:46.531Z"},{"id":"full_commission-G802123-2023-03-17","awccNumber":"G802123","decisionDate":"2023-03-17","decisionYear":2023,"opinionType":"full_commission","claimantName":"Francine Murphy","employerName":"Arkansas Department Of Corrections","title":"MURPHY VS. ARKANSAS DEPARTMENT OF CORRECTIONS AWCC# G802123 MARCH 17, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Murphy_Francine_G802123_20230317.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Murphy_Francine_G802123_20230317.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G802123 \n \nFRANCINE MURPHY, \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF CORRECTIONS,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2  \n  \n      \nOPINION FILED MARCH 17, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LAURA BETH YORK, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE CHARLES H. \nMcLEMORE, JR., Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID L. PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed in part, reversed in part. \n \n \n OPINION AND ORDER \nThe respondents appeal an administrative law judge’s opinion filed \nAugust 23, 2022.  The administrative law judge awarded compensation for \nfacial disfigurement.  The administrative law judge also found that the \nclaimant proved she was permanently and totally disabled.  After reviewing \nthe entire record de novo, the Full Commission affirms the administrative \nlaw judge’s award of compensation for facial disfigurement.  The Full \n\nMURPHY - G802123  2\n  \n \n \nCommission reverses the administrative law judge’s finding that the \nclaimant proved she was permanently totally disabled.     \nI. HISTORY \n Francine Annette Murphy, now age 59, testified that she was a high \nschool graduate.  Ms. Murphy testified that following high school she \nattended vocational-technical training, for a brief time, learning secretarial \nskills.  The claimant then worked at an Assisted Living facility for 12 years.  \nThe claimant described her Assisted Living duties as “Housekeeping, \ncooking, and taking care of the elder (sic).”  The claimant testified that she \nsubsequently became employed with the respondents, Arkansas \nDepartment of Corrections.  The claimant testified on direct examination: \nQ.  And how long were you employed at the Arkansas \nDepartment of Corrections? \nA.  It was 15 years.   \nQ.  Okay.  What was your job at the Arkansas Department of \nCorrections? \nA.  I was a production – Food Production Manager No. 1.   \nQ.  Okay.  What does a Food Production Manager do? \nA.  Supervise inmates, check in and out tools, strip search, \nbed search, just walkin’ the [indiscernible], make sure they’re \ndoin’ their job. \nQ.  Okay. \nA.  Lots of paperwork.... \nQ.  Are you helping with any of the cooking that’s being done? \nA.  Yes.  I would go back and, you know, ‘cause I love to cook \nand I would just try to make the food, you know, edible for the \ninmates and tell ‘em what to put in it and just to make it taste \ngood.... \nQ.  Was there computer work to be done? \nA.  Yes, as far as me havin’ to do my classes on computer.   \n\nMURPHY - G802123  3\n  \n \n \nQ.  Okay.  So you had to take a certain number of classes to \ncontinue working at the prison? \nA.  Yes.  It’s 40 hours per year.   \nQ.  Okay.  And did you then do those classes online while you \nwere at work? \nA.  Yes.   \nQ.  So these are computers that you would use at work? \nA.  Yes.   \n \n The parties stipulated that the employee-employer-carrier \nrelationship existed at all pertinent times, including March 17, 2018.  The \nclaimant testified on direct examination: \n  Q.  Did you trip and fall? \n  A.  Yes. \n  Q.  Okay.  So you were on your way to the chow area? \n  A.  Yes.... \nQ.  What happened to you physically when you tripped and \nfell? \n  A.  I hit the concrete....I went flat face down. \n \n The parties stipulated that the claimant “sustained compensable \ninjuries to her head and left eye” on March 17, 2018.  According to the \nrecord, the claimant treated at Harris Medical Center on March 17, 2018:  \n“Patient presents for evaluation of fall....fell from standing and hit the left \nSOR.  Now with extreme pain in the left eye with loss of vision.”  The \nprimary diagnosis was “Left Globe trauma.”   \n An ophthalmologist performed surgery on March 17, 2018:  “Globe \nexploration and repair of open globe left eye.”  The post-operative diagnosis \nwas “Lens dislocation,” “Ruptured globe of left eye, initial encounter,” and \n“Injury of globe of left eye, initial encounter.” \n\nMURPHY - G802123  4\n  \n \n \n Dr. John D. Pemberton performed surgery on April 3, 2018:  \n“Enucleation with implant and muscles attached, left.  Temporary \ntarsorrhaphy, left.”  The pre- and post-operative diagnosis was “Blind, \npainful phthisical eye.”   \n Dr. Roger L. Green noted on April 18, 2018, “She fell at work on \n3/17/18 and hit her left eye on a cart.  She was seen at Harris Hospital ER \nand transferred to UAMS.  She had surgery on April 3\nrd\n at UAMS to remove \nher eye.  She is not in pain today.  She will need refills on all of her \nmedications.”  Dr. Green reported, “Literacy Assessment:  Never need to \nhave someone help me when I read instructions, pamphlets, or other \nwritten material from my doctor or pharmacy.”   \n Dr. Pemberton performed additional surgery on October 30, 2018:  \n“1.  Removal of orbital implant on the left.  2.  Placement of new implant in \nthe left, size 18 mm Medphor sphere.  3.  Permanent lateral tarsorrhaphy \non the left.  4.  Temporary tarsorrhaphy on the left.”  The pre- and post-\noperative diagnosis was “1.  Complications with orbital implant.  2.  Poor \nfitting of prosthesis.  3.  Anophthalmia on the left.  4.  Lid laxity, left lower \neyelid.”       \n The claimant signed the following note dated April 15, 2019: \nI, Francine Murphy – 28960, will be retiring effective June 1, \n2019.  My last day of employment with the Department of \nCorrection will be May 31, 2019.   \n \n\nMURPHY - G802123  5\n  \n \n \n The claimant testified on direct examination: \nQ.  Now, when your doctor released you and said you’re as \ngood as your gonna get, what happened with your \nemployment with the State of Arkansas? \nA.  Well, I lost all my benefits.  I was told that I was gonna \nhave to take an early retirement or get terminated unless I \nturned 55.  That’s when they offered that to me. \nQ.  Okay.  So you followed the instruction of your employer.  \nIs that correct? \nA.  Yes.   \n \n Dr. Pemberton assessed the following on June 17, 2019: \n1.   Anophthalmia, left eye. \n-    Enucleated after trauma \n-    Doing well, has adapted for ADLs \n-    Prosthesis fitting better.   \n2.   Graves disease. \n-    Has proptosis but no active thyroid eye disease. \n-    Recommend lubricating with tears during day and \nointment at night to limit exposure \n3.    Complication of prosthetic orbit of eye, subsequent                    \nencounter. \n-    Prosthesis fitting better after last revision. \n4.  Thyroid eye disease -Right Eye \n5.  Eyelid retraction, unspecified laterality – Right Eye. \n6.  Hyperopia of both eyes with astigmatism and presbyopia – \nRight Eye. \n \nTears both eyes 4 times daily for life. \nTear ointment bedtime to the right eye only for life. \nSelenium daily. \nMultivitamin daily. \nDecrease smoking. \nMaximum surgical improvement:  will need annual socket \nexam of the left.   \nReturn in about 6 months (around 12/17/2019) for \nComprehensive eye exam.... \n \nDriving:  Best corrected or uncorrected visual acuity in at least \none eye is 20/40 or better:  yes. \n\nMURPHY - G802123  6\n  \n \n \nDiscussed with patient.  Vision worse than 20/40 \n(corrected/uncorrected) in better seeing eye was discussed \nand driving was not recommended and told it did not meet \nstate standards of visual requirement for drivers license.   \nMonocular precautions discussed (yes/no/na:  not applicable):  \nPatient with monocular vision [was] advised to wear protective \neyewear during all activities, in effort to protect the only seeing \neye.  Patient has glasses yes.  Patient given a prescription for \nprotective eyewear yes.   \n \n Dr. Pemberton performed surgery on January 10, 2020:  “Permanent \nTarsorrhaphy right (6mm).”  The pre- and post-operative diagnosis was \n“eyelid retraction upper due to ted, exposure keratopathy.”   \n Dr. Barry D. Baskin provided an Impairment Rating on August 25, \n2020: \nMs. Murphy is a 56-year-old lady from Newport.  She works \nfor the Department of Corrections in the food service at the \nprison in Newport.  She was on the job on 03/17/2018 when \nshe tripped and fell on her face.  She hit her left eyeball and \nhad a significant injury to the left eye.  She lost vision at the \ntime of the fall.  She complained of significant eye pain.  She \nhad preexisting history of Graves’ disease with exophthalmos.  \nShe was initially seen up in Newport and ultimately was \ntransferred to UAMS where she was treated by Dr. John \nPemberton....She underwent several surgeries on her eye \nand ultimately had enucleation of the left eye.  She has had \ntwo prosthetic eyes.  She still with the prosthesis feels like her \neye does not look normal.  She is worried about that a lot and \nhas withdrawn some.  She is trying to deal with it but does \nsocial isolate herself and frequently she states she wears dark \nglasses even when it is not bright outside to cover up her eye.  \nShe is self-conscious about the eye.  She states that her eye \ndoes dry out some.  She uses a lubricant.  She can shut the \neye.  She has also had a surgery unrelated on the right eye by \nDr. Pemberton.  She has complete and total visual loss and \nagain enucleation of the left eye.... \nShe is not working currently.... \n\nMURPHY - G802123  7\n  \n \n \nPHYSICAL EXAMINATION:  Ms. Murphy is a pleasant 5 feet \n7 inches, 210 pound female that is alert and cooperative.  She \nhad dark glasses on.  She does have a prosthetic eye on the \nleft.  She has proptosis bilaterally.  She has a fairly natural \nappearing left eye prosthetic.  She does not completely open \nthe left eye compared to the right.  She does have fairly good \nlid closure on the left.  She has good vision out of the right eye \nper her records and her admission today.  She gets around \nfairly well.  Her gait is normal.  She has trouble with depth \nperception. \n \nIMPRESSION:  Ms. Murphy is a nice lady who presents for an \nimpairment rating today regarding a work fall with the \nDepartment of Corrections that resulted in loss of vision in the \nleft eye and complete enucleation and prosthetic left eye.  She \nhas had three different prostheses.  She has preexisting \nGraves’ disease with hyperthyroidism and exophthalmos.  \nNext, turning to the AMA Guides to the Evaluation of \nPermanent Impairment 4\nth\n Edition using section 8.4 on page \n217-218 and table 6 on page 218, Ms. Murphy has a total loss \nof vision out of her left eye.  This would give her a 25% \nimpairment to the visual system which is equal to a 24% \nimpairment of the whole person.  Ms. Murphy has some \ndegree of disfigurement associated with anxiety and \ndepression.  Turning to page 141-142 of the guides emotional \nor behavioral disturbances [Ms.] Murphy would have a mild \nlimitation of daily social and interpersonal functioning as a \nresult of her perception of disfigurement with her left eye \nenucleation and prosthesis.  This would give her an additional \n10% whole person impairment.  Next, turning to the combined \nvalues chart on page 322, Ms. Murphy’s 24% impairment is \ncombined with her 10% impairment to the whole person to \ngive her a 32% whole person impairment.  [Ms.] Murphy will \ncontinue to need to see Dr. Pemberton for his skills as an \nOculoplastic surgical specialist.  The last records I have from \nDr. Pemberton were dated back to 01/10/2020 when he \nperformed a Tarsorrhaphy of the right eye.  This was \nunrelated to the patient’s left eye injury.   \n \nThis concludes my impairment rating on Ms. Francine \nMurphy.  I appreciate the opportunity to assist in this nice \nlady’s impairment rating today.  If there are any questions \n\nMURPHY - G802123  8\n  \n \n \nregarding this impairment rating I would be happy to address \nthem.  I would note that the impairment rating for emotional \nand behavioral impairment is directly linked to the section on \ndisfigurement which is section 13.4 on page 279 of the \nguides.  My opinions were given within a reasonable degree \nof medical probability based upon my training and experience \nas board certified Physiatrist as well as my review of Ms. \nMurphy’s records and examination of Ms. Murphy today.   \n \n Tanya L. Walker, APRN noted on October 1, 2021 and November \n23, 2021, “Francine A. Murphy is disabled due to the loss of her left eye.  \nThe injury occurred on 3-17-2018.”  A physician signed Ms. Walker’s \nNovember 23, 2021 note.       \nA pre-hearing order was filed on January 26, 2022.  According to the \ntext of the pre-hearing order, the parties agreed to litigate the following \nissues: \n(1) Whether the Claimant is entitled to benefits for facial \ndisfigurement pursuant to Ark. Code Ann. §11-9-524 in \nrelation to her compensable injuries of March 17, 2018; \n(2) Whether the claimant is entitled to permanent and total \ndisability benefits in relation to her compensable injuries of \nMarch 17, 2018; or, in the alternative, wage loss disability \nbenefits; and, \n(3) Attorney’s fees associated with controverted indemnity \nbenefits.   \n \nTanya Rutherford Owen, Ph.D., a Rehabilitation Services consultant, \ncorresponded with the claimant’s attorney on February 3, 2022: \nAt your request, we have conducted a labor market survey of \nNewport, Arkansas in February 2022.  Please find below the \nfindings from this survey.... \nMs. Murphy’s area of residence Newport, Arkansas was \nreviewed to determine the jobs that exist and their impact on \n\nMURPHY - G802123  9\n  \n \n \nher potential to return to work.  Data reviewed of Jackson \nCounty reflect a civilian labor force of 5,585 with 5,391 \nemployed and 194 unemployed and an unemployment rate of \n3.5%.  This information was obtained from the County Labor \nForce Statistics, Arkansas Counties (December 2021). \nOn February 2, 2022, a review of the labor market in Mr. \nJones’ in Newport, Arkansas was made to identify potential \nreturn to work occupations.... \n \n Ms. Owen wrote that she had located 15 potential jobs for the \nclaimant.  These potential employment opportunities included cashier \nduties, clerical work, retail sales, customer service, housekeeping, fast food \nemployment, manufacturing, teaching, and home health care.      \nA hearing was held on May 27, 2022.  The claimant’s attorney \nexamined Tanya Rutherford Owen: \nQ.  Now, we have what we have marked as Claimant’s Exhibit \nNo. 1, which is a list of the jobs that you provided to us.  Now, \ncan you tell us how you came about the jobs that you \nprovided to us? \nA.  Well, first my assignment was to do a Labor Market \nSurvey, so I have to find out where the person is or what area \nI’m surveying, and I do this, at this point really, all over the \ncountry, but in this case I surveyed Newport, Arkansas, and \nso I need to know the geographic location.  And in this case I \nwasn’t looking for any one specific type of work....In this case \nit’s just a Labor Market Survey; it’s just saying in this area, on \nthis date, which I think we looked at a couple of days in \nFebruary, what jobs were open, and then what were their \nrequirements of those jobs.... \nQ.  So the jobs that you provided in the report that we have \nmarked as Exhibit No. 1, it’s your February 3, 2022 report, are \nthese all the jobs that you found available in Newport, \nArkansas? \nA.  It’s most of what we found on this date....And if you look at \nthis, you start seeing themes of the types of jobs; entry-level \ntypes of jobs, you know, sales cashier types of jobs.  Those \n\nMURPHY - G802123  10\n  \n \n \nare the types of jobs that we found available in this area on \nthis date.... \n \n The respondents’ attorney cross-examined Dr. Owen: \nQ.  I just wanted to ask you, first of all, what date did you meet \nthe claimant, Ms. Francine Murphy? \nA.  I’ve never met Ms. Murphy.   \nQ.  Okay.  Have you reviewed medical records from Ms. \nMurphy? \nA.  I have not.   \nQ.  All right.  What do you know about Ms. Murphy? \nA.  I don’t know anything about Ms. Murphy other than her \nname, that she’s Ms. York’s client, and that she resides in or \nnear Newport, Arkansas.   \nQ.  Okay.  So if I asked you your opinion about whether Ms. \nMurphy can do the jobs that you found on February 3\nrd\n, you \ncouldn’t answer that? \nA.  No, sir, I don’t have enough information to answer that.  \nI’m sorry.... \nQ.  And I noted on this report, these 15 jobs that you found, \nthese were jobs that were open within Newport on that \nparticular date, correct? \nA.  In or around Newport.... \nQ.  Did Ms. Murphy ever contact you about any of these jobs? \nA.  I don’t think so.  I don’t think I’ve ever talked with Ms. \nMurphy.  No, sir.   \n \n An administrative law judge filed an opinion on August 23, 2022.  \nThe administrative law judge found that the claimant proved she was \nentitled to a statutory award for permanent facial disfigurement.  The \nadministrative law judge also found that the claimant proved she was \npermanently and totally disabled.  The respondents appeal to the Full \nCommission. \nII.  ADJUDICATION \n\nMURPHY - G802123  11\n  \n \n \nA.   Disfigurement \nArk. Code Ann. §11-9-524(Repl. 2012) provides: \n(a) The Workers’ Compensation Commission shall award \ncompensation for serious and permanent facial or head \ndisfigurement in a sum not to exceed three thousand five \nhundred dollars ($3,500). \n(b) No award for disfigurement shall be entered until twelve \n(12) months after the injury.   \n \nIn the present matter, an administrative law judge found that the \nclaimant was “entitled to $1,500.00 for facial disfigurement pursuant to Ark. \nCode Ann. §11-9-524.”  The Full Commission affirms this finding.  The \nparties stipulated that the claimant sustained a compensable injury to her \nhead and left eye on March 17, 2018.  The evidence demonstrates that the \nclaimant sustained “Left Globe trauma” resulting from a slip and fall at work \non March 17, 2018.  The compensable injury led to an “enucleation” of the \nclaimant’s left eye, performed by Dr. Pemberton on April 3, 2018.  Dr. \nPemberton performed additional left eye surgery on October 30, 2018 in \npart to place a “new implant” in the claimant’s left orbit.  Dr. Baskin provided \nan Impairment Rating on August 25, 2020.  Dr. Baskin noted that the \nclaimant wore dark glasses and that the claimant was “self-conscious about \nthe eye.”  Dr. Baskin wrote that the claimant “has some degree of \ndisfigurement” after the claimant’s compensable injury and surgery.   \nThe claimant testified on direct examination: \n\nMURPHY - G802123  12\n  \n \n \nQ.  Can you describe to us, in your own words, how the \ndifference – when you look in the mirror, what is the difference \nbetween your left eye and your right eye now? \nA.  Right now this left eye is lower.  This eye just don’t fit well. \nQ.  Now, before this accident were your eyes even level? \nA.  Yes.   \nQ.  After this accident, did – \nA.  It’s a result of all my surgeries.  Yes. \n \n   The Arkansas Court of Appeals has affirmed the Commission’s \naward of disfigurement when a compensable injury was “noticeable” and \n“detracted from a claimant’s appearance.”  See Fayetteville Sch. Dist. v. \nKunzelman, 93 Ark. App. 160, 217 S.W.3d 149 (2005).  Likewise in the \npresent matter, the evidence demonstrates that the compensable injury has \nresulted in a “noticeable” disfigurement which the claimant perceives is a \ndetraction to her appearance.  The Full Commission therefore affirms the \nadministrative law judge’s award of $1,500.00 for facial disfigurement in \naccordance with Ark. Code Ann. §11-9-524(Repl. 2012).   \nB.   Permanent Total Disability \nAn employee who has sustained a scheduled injury shall not be \nentitled to permanent partial disability benefits in excess of the percentage \nof her permanent physical impairment.  McDonald v. Batesville Poultry \nEquip., 90 Ark. App. 435, 206 S.W.3d 908 (2005).  However, an employee \nwho has sustained a scheduled injury may claim entitlement to permanent \ntotal disability benefits.  Id.   \nArk. Code Ann. §11-9-519(Repl. 2012) provides, in pertinent part: \n\nMURPHY - G802123  13\n  \n \n \n(e)(1)  “Permanent total disability” means inability, because of \ncompensable injury or occupational disease, to earn any \nmeaningful wages in the same or other employment.   \n(2)  The burden of proof shall be on the employee to prove \ninability to earn any meaningful wages in the same or other \nemployment.   \n \n The Full Commission reviews an administrative law judge’s opinion \nde novo, and it is the Full Commission’s duty to conduct its own fact-finding \nindependent of that done by the administrative law judge.  Crawford v. Pace \nIndus., 55 Ark. App. 60, 929 S.W.2d 727 (1996).  The Full Commission \nenters its own findings in accordance with the preponderance of the \nevidence.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 \n(1990). \n An administrative law judge found in the present matter, “(2)  The \nClaimant has proven, by a preponderance of the evidence, that she has \nbeen rendered permanently and totally disabled as the result of her \ncompensable left eye injury of March 17, 2018[.]”  The Full Commission \ndoes not affirm this finding.  The Full Commission finds that the claimant did \nnot prove she was permanently totally disabled.   \n The claimant is middle-aged, age 59, and is a high school graduate.  \nThe claimant worked for 12 years at an Assisted Living facility before \nbecoming employed as a Food Production Manager for the respondents, \nArkansas Department of Corrections.  The claimant testified that she was \nemployed with the respondents as a Food Production Manager for 15 \n\nMURPHY - G802123  14\n  \n \n \nyears.  The claimant’s job duties in this capacity included preparation of \nfood and supervision of inmates.  The claimant was at least minimally \ncomputer proficient according to her testimony.  The parties stipulated that \nthe claimant sustained a compensable injury to her left eye on March 17, \n2018.  As the Commission has recognized from the medical evidence, the \ncompensable injury resulted in an enucleation of the claimant’s left eye \nperformed by Dr. Pemberton.   \n The claimant has not attempted to return to appropriate gainful \nemployment since her compensable injury.  The Full Commission again \nnotes that the claimant is at least minimally proficient in use of a computer \naccording to her testimony.  Following enucleation surgery by Dr. \nPemberton, Dr. Green reported on April 18, 2018 was able to read \n“instructions, pamphlets, or other written material.”  The claimant is literate \neven after surgery.  The claimant informed the respondents on April 15, \n2019 that she would be voluntarily retiring effective June 1, 2019.  There is \nno evidence corroborating the claimant’s testimony that the respondents \nforced or encouraged the claimant to retire from gainful employment.  Dr. \nPemberton reported on June 17, 2019 that the claimant was doing well, and \nhad “adapted for ADLs,” that is, Activities of Daily Living.  Dr. Baskin \nassigned the claimant only a 32% whole-person impairment rating on \nAugust 25, 2020.  Dr. Baskin opined that the claimant had only “a mild \n\nMURPHY - G802123  15\n  \n \n \nlimitation of daily social and interpersonal functioning as a result of her \nperception of disfigurement with her left eye enucleation and prosthesis.”  \nDr. Baskin did not opine that the claimant was permanently totally disabled, \nnor did he restrict the claimant’s driving activities.  The Full Commission \ntherefore places minimal evidentiary weight on APRN Tanya Walker’s \nsubsequent opinion that the claimant was “disabled due to the loss of her \nleft eye.”   \n The claimant’s attorney arranged for Rehabilitation Services with \nTanya Rutherford Owen, Ph.D. beginning in February 2022.  As the Full \nCommission has discussed, Dr. Owen identified at least 15 potential job \nopenings for the claimant near the claimant’s home in Newport, Arkansas.  \nThe evidence demonstrates that the claimant did not attempt to follow up on \nany of the jobs identified by Tanya Rutherford Owen.  Dr. Owen’s testimony \ndemonstrates that neither the claimant never contacted her following the \nconsultation report of February 3, 2022.  The Full Commission recognizes \nthe claimant’s testimony the she is greatly restricted in her ability to drive a \nmotor vehicle as a result of the compensable injury, surgery, and resulting \n32% anatomical impairment.  However, the claimant also testified that she \nis physically able to drive at least some distances in the area of Newport, \nArkansas where the claimant resides.  The claimant’s demonstrated lack of \ninterest in returning to work is an impediment to a full assessment of the \n\nMURPHY - G802123  16\n  \n \n \nclaimant’s contention that she is permanently and totally disabled.  Oller v. \nChampion Parts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).  The \nFull Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only \nthose portions of the testimony it deems worthy of belief.  Johnson v. Hux, \n28 Ark. App. 187, 772 S.W.2d 362 (1989).  In the present matter, with \nregard to her contention that she is permanently totally disabled as a result \nof her compensable scheduled injury, the Full Commission finds that the \nclaimant was not a credible witness.   \n After reviewing the entire record de novo, the Full Commission \naffirms the administrative law judge’s award for facial disfigurement in \naccordance with Ark. Code Ann. §11-9-524(Repl. 2012).  We reiterate that \nthe claimant also sustained permanent anatomical impairment in the \namount of 32%, as assessed by Dr. Baskin.  The evidence demonstrates \nthat the 32% anatomical impairment rating is supported by objective \nmedical findings, comports with the 4\nth\n Edition of the Guides, and that the \ncompensable injury was the major cause of 32% permanent anatomical \nimpairment.  The respondents shall be liable for 32% permanent anatomical \nimpairment in addition to the award for facial disfigurement.  The Full \nCommission reverses the administrative law judge’s finding that the \nclaimant proved she was permanently totally disabled.  The claimant did not \n\nMURPHY - G802123  17\n  \n \n \nprove that she was unable to earn “any meaningful wages in the same or \nother employment” in accordance with Ark. Code Ann. §11-9-519(e)(Repl. \n2012).  The Full Commission denies the respondents’ motion to introduce \n“rebuttal evidence,” that is, evidence purporting to illustrate contentions \nmade by the claimant during her deposition testimony.  Said “rebuttal \nevidence” is not necessary or probative with regard to the Full \nCommission’s de novo review in the present matter. \n The claimant’s attorney is entitled to fees for legal services in \naccordance with Ark. Code Ann. §11-9-715(a)(Repl. 2012).  For prevailing \nin part on appeal, the claimant’s attorney is entitled to an additional fee of \nfive hundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012). \n IT IS SO ORDERED.   \n       \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton concurs and dissents. \nCONCURRING AND DISSENTING OPINION \n The Majority has correctly determined that the claimant has not \nsatisfied her burden of proof that she is permanently and totally disabled; \n\nMURPHY - G802123  18\n  \n \n \nhowever, I cannot agree that she is entitled to benefits for facial \ndisfigurement, nor do I agree that the Majority is correct in applying the \nclaimant’s permanent impairment to the body as a whole. \n The claimant was injured while employed with Arkansas Department \nof Corrections on March 17, 2018 when she fell and struck the left side of \nher face on the floor, resulting in damage to her left eye, which ultimately \nrequired its removal. (Tr., Pp. 33-34). The respondent employer accepted \nthe 100% loss of the claimant’s eye. (Tr., Pp. 36-37).  \n The claimant was first treated at the Harris County Hospital on March \n17, 2018 with findings that were “indicative [of] rupture of the left globe,” \nand her eye was surgically removed on April 3, 2018.  (Cl. Med. Ex., Pp. 10, \n19, 37).  On August 25, 2020, Dr. Barry Baskin examined the claimant and \nassessed an impairment rating of 32% to the body as a whole, as a result of \nthe scheduled injury to her left eye.  Dr. Baskin incorrectly translated the \nloss of the left eye, a scheduled injury, to the body as a whole and assigned \na whole body rating of 24% and based the remainder of the rating on the \nsubjective complaints of the claimant which does not comply with the Act. \n(Cl. Med. Ex., P. 81).  Dr. Baskin stated that the claimant has “mild social \nand interpersonal functioning as a result of her perception of disfigurement \nwith her left eye enucleation and prosthesis,” thereby basing his rating on \nthe claimant’s subjective complaints rather than objective medical findings \n\nMURPHY - G802123  19\n  \n \n \nId. (emphasis added).  Dr. Baskin did not address any facial disfigurement.  \nSee Id. \nAs noted above, the claimant suffered a 100% loss of her left eye, for \nwhich the respondents have accepted compensability. “Any employee \nsuffering a scheduled injury shall not be entitled to permanent partial \ndisability benefits in excess of the percentage of permanent physical \nimpairment . . . . ” Ark. Code Ann. § 11-9-521(g).  It is well settled in this \nState that absent a finding of total disability, a scheduled injury cannot be \napportioned to the body as a whole.  Hill v. White-Rodgers, 10 Ark. App. \n402, 665 S.W.2d 292 (1984).  The applicable statute, Arkansas Code \nAnnotated § 11-9-521(a)(14), states that an enucleated eye, in which there \nwas useful vision, is a scheduled injury for which an employee shall receive \nweekly benefits in the amount of the permanent partial-disability rate \nattributable to the injury for 105 weeks.  Compensation for the permanent \nloss of 80 percent or more of the vision of an eye shall be the same as for \nthe loss of an eye.  Ark. Code Ann. § 11-9-521(c)(1). Multi-Craft Contrs., \nInc. v. Yousey, 2018 Ark. 107, 542 S.W.3d 155 (2018).  Therefore, the \nclaimant’s eye injury must be limited to the scheduled benefits. \nThere is no medical proof of disfigurement.  Ark. Code Ann. § 11-9-\n524 requires serious and permanent facial disfigurement.  The fact that the \nclaimant has a perception of disfigurement as pointed out by Dr. Baskin, \n\nMURPHY - G802123  20\n  \n \n \nwhich is subjective, does not meet her burden of proof and as such benefits \nfor disfigurement should be denied. \nThe statute and case law are clear that when a claimant sustains an \ninjury to a scheduled member, the claimant is limited to the anatomical \nrating assigned for the scheduled member under the Act unless the \nclaimant is permanently and totally disabled.  Since the claimant is not \npermanently and totally disabled, she is limited to 105 weeks of disability \nbenefits for the loss of her eye. \nFor the reasons stated above, I concur that the claimant is not \npermanently and totally disabled and dissent from the findings of the \nMajority that the claimant is entitled to a permanent anatomical impairment \nin the amount of 32% to the body as a whole and benefits for facial \ndisfigurement. \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":31555,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G802123 FRANCINE MURPHY, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTIONS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T22:29:46.545Z"},{"id":"alj-H205234-2023-03-17","awccNumber":"H205234","decisionDate":"2023-03-17","decisionYear":2023,"opinionType":"alj","claimantName":"Terry Griffith","employerName":"Autozone, Inc","title":"GRIFFITH VS. AUTOZONE, INC. AWCC# H205234 MARCH 17, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GRIFFITH_TERRY_H205234_20230317.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRIFFITH_TERRY_H205234_20230317.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nWCC NO. H205234 \n \nTERRY C. GRIFFITH, EMPLOYEE CLAIMANT \n \nAUTOZONE, INC., \n EMPLOYER RESPONDENT \n \nXL INSURANCE AMERICA, \n CARRIER  RESPONDENT \n \nOPINION FILED MARCH 17, 2023 \n \nHearing  before  Administrative  Law  Judge  Steven  Porch on March  7,  2023,  in  Little \nRock, Pulaski County, Arkansas. \n \nClaimant Terry C. Griffith is representing himself, pro se. \n \nRespondents  are  represented  by  Mr.  Eric  Newkirk,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n On   March   7,   2023,  the  above-captioned  claim   was   heard   in   Little   Rock, \nArkansas.  A prehearing conference took place on  December 12, 2022.  A  Prehearing \nOrder  was  entered  that  same  day  pursuant  to  the  conference.  The  parties  have \nstipulated  to  1.)  the  Arkansas  Workers’  Compensation  Commission  having  jurisdiction \nover the claim, 2.) that an employee/employer/carrier relationship existed on March 11, \n2013,  when  claimant  sustained a  compensable  injury  in  the form of  a  scalp  contusion, \nand 3.) Respondents accepted that injury as medical-only. There are three issues at the \nheart  of this  case.  First, has  the  Claimant  sustained  compensable  injuries  to  his head, \nneck,   back   and   shoulder   by   specific   incident?   Second,   is   Claimant   entitled to \nreasonable  and  necessary  medical  treatment?  Third,  has  the  Claimant  filed  his  claim \nwithin the statute of limitations? These issues will be addressed in reverse order.   \n\nGRIFFITH – H205234 \n \n2 \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record,  including  medical  reports,  documents,  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity to  hear  the \ntestimony of the witnesses and to observe their demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that his \nclaim  was  timely  filed.  Thus,  the  Commission  finds,  and  the  evidence \npreponderates,  that  this  claim  for  additional  benefits  is  barred  by  the \nstatute of  limitations  set  forth  in  Ark.  Code  Ann.  §11-9-702(b)(1)  (Repl. \n2012). \n3.  Because  of  the  above  findings/conclusions,  the  remaining  issues –  1.) \nwhether  the  Claimant  sustained  compensable  injuries  to  his  head,  neck, \nback and shoulder by specific incident and 2.) whether Claimant is entitled \nto reasonable and necessary medical treatment are hereby moot and will \nnot be addressed. \nSTATUTE OF LIMITATIONS \n Facts  of  Case.   The  date  of  injury  for  this  claim  occurred  on  March  11,  2013, \nwhere the hood of a motor vehicle collapsed on Claimant, causing injury to his head and \nback.  Respondents  initially  accepted  this  claim  in  March  2013  and  paid  for  Claimant’s \n\nGRIFFITH – H205234 \n \n3 \nmedical  bills  and  physical  therapy.  Claimant  was  released  from  medical  care  on April \n17, 2013. Claimant went to physical therapy during his lunch break and did not miss any \nwork. Claimant’s initial benefits were purely medical. On July 22, 2022, a little over nine \nyears  after his  injury,  Claimant  filed  a  claim  for  compensation  for  his  head,  neck, \nshoulder and back, in the form of an AR-C , with the Commission.  \nThe Respondents have alleged at the outset of this claim that it is barred by the \nstatute  of  limitations.  Claimant  disputes  this.  Both  Claimant  and  Respondents have \nsubmitted  into  evidence  Claimant’s  deposition  as  Joint  Exhibit “1.”  The  Claimant  also \nsubmitted  his  medical  records  as  Claimant’s  Exhibit “1”  while  Respondent  submitted \nClaimant’s Joint  Petition  from  a  2020  injury  as Respondent’s  Exhibit “1.”  I  have \nreviewed and weighed this evidence along with the sworn testimony and argument.   \n Standards.      The   evidence   before   me   reflects,   as   stipulated   above,   that \nRespondents initially accepted this claim as compensable, but later controverted it in its \nentirety.  Under Ark. Code Ann. §11-9-702(b)(1) (Repl. 2012): \nIn  cases  in  which  any  compensation,  including  disability  or  medical,  has \nbeen  paid  on  account  of  injury,  a  claim  for  additional  compensation  shall \nbe  barred  unless  filed  with  the  commission  within  one  (1)  year  from  the \ndate of the last payment of compensation or two (2) years from the date of \nthe injury, whichever is greater. \n \n The burden rests on Claimant to prove that his claim was timely filed.  Stewart v. \nArk.  Glass  Container, 2010  Ark.  198, 366  S.W.3d  358; Kent  v.  Single  Source  Transp., \n103  Ark.  App.  151,  287  S.W.3d  619  (2008).    Under  Ark.  Code  Ann.  § 11-9-705(a)(3) \n(Repl.  2012),  he  must  prove  this  by  a  preponderance  of  the  evidence. The  standard \n“preponderance   of   the   evidence”   means   the   evidence   having   greater   weight   or \n\nGRIFFITH – H205234 \n \n4 \nconvincing force.  Barre v. Hoffman, 2009 Ark.  373, 326 S.W.3d 415; Smith v. Magnet \nCove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n Discussion.  As  stated  above,  the  Respondents  initially accepted  Claimant’s \ninjury as compensable and paid the medical benefits for Claimant’s treatment. The last \npayment  of  medical  benefits  was  not  entered  into  the  record  by  either  side  during  the \nhearing.  The  statute  of  limitations  for  additional  compensation  began  to  run  one  year \nfrom the date of the last benefit payment or two years from the date of injury, whichever \nis  greater.  Ark.  Code  Ann.  §11-9-702(b)(1)  (Repl.  2012); See  also,  Wynne  v.  Liberty \nTrailer and Death and Permanent Total Disability Trust Fund, 2022 Ark. 65, 641 S.W.3d \n621  (2022)(holding  the  statute  of  limitations  on  a  request  for  additional  benefits \ncommences  when  the  last  payment,  whether  for  disability  or  medical  benefits, was \nmade).  The  evidence  is  clear  the  last  day  of  treatment  for  the  Claimant  was  April  17, \n2013. This Court has requested briefs from both sides on March 8, 2023, on the issue of \nwhen  the  last  payment  of  benefits  was  made  by  the  Respondent  regarding  the  March \n11, 2013, injury. Those briefs have been received, blue-backed and made a part of the \nofficial record for this case.  \nThe  Court  now  finds,  based  on  the  evidence,  that  the  last benefit  payment  was \nmade  on  July  9,  2013.  Since  Claimant  has  one  year  from  the  last  medical  benefit \npayment or two years from the date of injury, whichever is greater, to file for additional \nmedical benefits, the Court finds the Claimant had until March 11, 2015, the later date, \nto file his claim for additional benefits with the Commission. The Court further finds the \nClaimant did not file his claim within the required statute of limitations period.  \n\nGRIFFITH – H205234 \n \n5 \nThough   it   should   be   noted,   the   Claimant   feels   it   was   the   Respondent’s \nresponsibility to report his injury to the Commission under Ark. Code Ann. §11-9-529 (a \n& b) (Repl. 2012), this argument is not dispositive of the statute of limitations issue. And \neven  if  it  were,  and  I  find  that  it  does  not  affect  the  statute  of  limitations  issue,  the \nClaimant did not provide any witnesses, such as a fellow employee, supervisor, district \nmanager, or anyone with personal knowledge, to substantiate his claim that he reported \nhis  need  to  management  for  additional  treatment  for  his  injury.  But again,  what  is \ndispositive  of  the  statute  of  limitations  issue,  at  this  point  in  the  analysis,  is  when  the \nClaimant filed his claim with the Commission. \n Only  one  Form  AR-C  has  been  filed  in  connection  with  this  matter.    That  is  the \nmeans for filing a “formal claim.”  See Yearwood v. Wal-Mart Stores, Inc., 2003 AR Wrk. \nComp. LEXIS 739, Claim No. F201311 (Full Commission Opinion filed June 17, 2003).  \nSee  also Sinclair  v.  Magnolia  Hospital,  1998  AR Wrk.  Comp.  LEXIS  786,  Claim  No. \nE703502 (Full Commission Opinion filed December 22, 1998)(a claim is “typically” filed \nvia a Form AR-C). I find the formal claim for this matter was filed with the Commission \non July 22, 2022, over nine years from the date of the injury. I further find the Claimant \nfailed  to  file  a  Form  AR-C by  the  March  11,  2015,  the  statute  of  limitations  deadline, \nthus forming my basis for finding this claim for additional benefits barred by the statute \nof limitations. \n \n \n \n\nGRIFFITH – H205234 \n \n6 \nCONCLUSION \n \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth above, \nthis claim for additional benefits is hereby denied and dismissed. \nIT IS SO ORDERED. \n \n \n \n \n       ________________________________ \n       Honorable Steven Porch \n       Administrative Law Judge","textLength":9146,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H205234 TERRY C. GRIFFITH, EMPLOYEE CLAIMANT AUTOZONE, INC., EMPLOYER RESPONDENT XL INSURANCE AMERICA, CARRIER RESPONDENT OPINION FILED MARCH 17, 2023 Hearing before Administrative Law Judge Steven Porch on March 7, 2023, in Little Rock, Pulaski County, Arkan...","outcome":"dismissed","outcomeKeywords":["dismissed:1","denied:1"],"injuryKeywords":["neck","back","shoulder"],"fetchedAt":"2026-05-19T23:09:34.311Z"},{"id":"alj-G605357-2023-03-16","awccNumber":"G605357","decisionDate":"2023-03-16","decisionYear":2023,"opinionType":"alj","claimantName":"Thang Chu","employerName":"Rheem Manufacturing Company","title":"CHU VS. RHEEM MANUFACTURING COMPANY AWCC# G605357 & G802364 MARCH 16, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CHU_THANG_G605357G802364_20230316.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CHU_THANG_G605357G802364_20230316.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G605357 & G802364 \n \nTHANG CHU, EMPLOYEE   CLAIMANT \n \nRHEEM MANUFACTURING COMPANY, EMPLOYER RESPONDENT#1 \n \nESIS INC.INSURANCE CARRIER                                                                                 RESPONDENT#1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND                                 RESPONDENT#2 \n \nOPINION/ORDER FILED MARCH 16, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant is represented by EDDIE H. WALKER, Jr., Attorney, Fort Smith. \n \nRespondents No. 1 are represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas. \n \nRespondent No. 2 is represented by CHRISTY L. KING, Attorney, Little Rock, Arkansas; although \nnot attending the hearing. \n \nOPINION/ORDER \n \n On  July 28, 2016, claimant filed Form AR-C, alleging a compensable injury on or about July \n31,  2014  for  file  number  G605357.  On  April  10,  2018  claimant  filed  Form  AR-C,  alleging  a \ncompensable injury on or about April 12, 2016 for file number G802364. Claimant was represented \nat the time by Mr. Eddie H. Walker, Jr., who remains his attorney of record.     \nOn December 6, 2022, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed his Form AR-C with the Commission, but he had not made a \nrequest for a hearing in that time. A hearing on  respondent’s Motion to Dismiss was scheduled for \nMarch  7,  2023.    Notice  of  the  scheduled  hearing  was  sent  to  claimant  by  certified  mail  at  the  last \nknown address in the Commission’s file.  The notice was delivered to claimant on January 12, 2023.   \n\nChu-G605357 & G802364 \n \n2 \n \nClaimant  did  not  respond  to  Respondent’s motion and did not appear in person at the hearing on \nMarch 7, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file.  After my review of the Respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the Respondent’s motion, as well as all other matters \nproperly before the Commission, I find that Respondent’s Motion to Dismiss this claim should be \nand hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2580,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G605357 & G802364 THANG CHU, EMPLOYEE CLAIMANT RHEEM MANUFACTURING COMPANY, EMPLOYER RESPONDENT#1 ESIS INC.INSURANCE CARRIER RESPONDENT#1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT#2 OPINION/ORDER FILED MARCH 16, 2023 Hearing before ADMINISTRA...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:09:30.104Z"},{"id":"alj-H105127-2023-03-16","awccNumber":"H105127","decisionDate":"2023-03-16","decisionYear":2023,"opinionType":"alj","claimantName":"Lindsey Covey","employerName":"Mcdonald’s Restaurant","title":"COVEY VS. MCDONALD’S RESTAURANT AWCC# H105127 MARCH 16, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//COVEY_LINDSEY_H105127_20230316.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"COVEY_LINDSEY_H105127_20230316.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H105127 \n \nLINDSEY COVEY, EMPLOYEE   CLAIMANT \n \nMCDONALD’S RESTAURANT, EMPLOYER RESPONDENT \n \nRISK MANAGEMENT RESOURCES, .INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED MARCH 16, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith. \n \nRespondents are represented CAROL LOCKARD WORLEY, Attorney, Little Rock, Arkansas. \n \nOPINION/ORDER \n \n On  June  9,  2022,  claimant  filed  Form  AR-C,  alleging  a  compensable  injury  on  June  14, \n2021.   Claimant was represented at the time by Michael L. Ellig, who remains her attorney of record.     \nOn December 9, 2022, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed her Form AR-C with the Commission, but she had not made a \nrequest for a hearing in that time.  Claimant’s attorney advised the Commission he had no objection \nto the Motion to Dismiss and would not attend the hearing.  A hearing on  respondent’s Motion to \nDismiss was scheduled for March 7, 2023. Notice of the scheduled hearing was sent to claimant by \ncertified mail at the last known address in the Commission’s file.  The notice was  delivered to claimant \non January 11, 2023.  Claimant did not respond to respondent’s motion and did not appear in person \nat the hearing on March 7, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \nhearing has been made in this file. After my review of the respondent’s motion, the Claimant’s lack of \n\nCovey-H105127 \n \n2 \n \nresponse and failure to attend the hearing for the  respondent’s motion, as well as all other matters \nproperly before the Commission, I find that respondent’s Motion to Dismiss this claim should be and \nhereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2197,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H105127 LINDSEY COVEY, EMPLOYEE CLAIMANT MCDONALD’S RESTAURANT, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, .INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED MARCH 16, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Fort Smith, Sebastian ...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:09:32.246Z"},{"id":"alj-H103439-2023-03-15","awccNumber":"H103439","decisionDate":"2023-03-15","decisionYear":2023,"opinionType":"alj","claimantName":"James Rogers","employerName":"Midamerica Hotels Corp., D/b/a Burger King Restaurants","title":"ROGERS VS. MIDAMERICA HOTELS CORP., d/b/a BURGER KING RESTAURANTS AWCC# H103439 MARCH 15, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Rogers_James_H103439_20230315.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Rogers_James_H103439_20230315.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H103439 \n \n \nJAMES ROGERS, EMPLOYEE CLAIMANT \n \nMIDAMERICA HOTELS CORP., d/b/a \n BURGER KING RESTAURANTS, \n EMPLOYER RESPONDENT \n \nPREVISOR INS. CO., CARRIER RESPONDENT \n \n \nOPINION FILED MARCH 15, 2023 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on  December  16,  2022,  in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented by Mr. Daniel E. Wren, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  Mr.  Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n \n On  December  16,  2022,  the  above-captioned  claim  was  heard  in  Jonesboro, \nArkansas.    A  prehearing  conference  took  place  on  October  3,  2022.    The  Prehearing \nOrder  entered  on  that  date  pursuant  to  the  conference  was  admitted  without  objection \nas  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the  stipulations, \nissues, and respective contentions, as amended, were properly set forth in the order. \nStipulations \n The   parties   discussed   the   stipulations   set   forth   in   Commission   Exhibit  1.  \nFollowing  an  additional  one  reached  at  the  hearing,  they  are  the  following,  which  I \naccept: \n\nROGERS – H103439 \n \n2 \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The  employer/employee/carrier  relationship  existed  at  all  relevant  times, \nincluding the alleged date of injury, April 8, 2021. \n3. Claimant’s average weekly wage of $979.57 entitles him to compensation \nrates of $653.00/$490.00. \n4. The  claim  was  initially  accepted  as  compensable,  with  both  medical  and \nindemnity benefits paid.  However, it was later controverted in its entirety. \n5. In  the  event  that  Claimant  proves  his  entitlement  to  indemnity  benefits, \nRespondents would be entitled to an offset under Ark. Code Ann. § 11-9-\n411 (Repl. 2012) concerning long-term disability benefits that were paid to \nhim in connection with his alleged lower back injury. \nIssues \n The parties discussed the issues set forth in Commission Exhibit 1.  Following a \nfifth one added at the hearing, the following were litigated: \n1. Whether  Claimant  sustained  a  compensable  injury  by  specific  incident  to \nhis lower back in the form of a herniation of L4-5. \n2. Whether   Claimant   is   entitled   to   reasonable   and   necessary   medical \ntreatment. \n3. Whether Claimant is entitled to temporary total disability benefits from the \ndate last paid to a date yet to be determined. \n4. Whether Claimant is entitled to a controverted attorney’s fee. \n\nROGERS – H103439 \n \n3 \n5. Whether,  in  the  event  Claimant  establishes  his  entitlement  to  indemnity \nbenefits, Respondents are entitled to an offset under Ark. Code Ann. § 11-\n9-411 (Repl. 2012) concerning his receipt of long-term disability benefits. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties read as follows: \n Claimant: \n1. Claimant  contends  that  on  or  about  April  8,  2021,  he  was  preparing \nsandwiches  at  the  respondent’s  Burger  King restaurant  when  he  felt  a \nsudden pop in his lower back.  This caused him to fall to the ground and \nlose control of his bladder. \n2. Claimant  has  been  treated  by  Dr.  Fereidoon  Parsioon,  and  has  had  an \nMRI  of  his  lower  back.    The  MRI  revealed  a  right  L4-5  paracentral \nruptured disc. \n3. This claim was accepted, and all benefits were paid until August 13, 2021, \nwhen Dr. John Brophy opined that the disc herniation was not related to a \nwork injury. \n4. All other issues are reserved. \nRespondents: \n1. Respondents  contend  that  Claimant’s  treating  physician,  Dr.  Brophy, \ndetermined  that  Claimant’s  complaints  and  need  for  additional  treatment \nare not related to any claimed work injury.  As a result, it is Respondents’ \n\nROGERS – H103439 \n \n4 \nposition that Claimant is not entitled to any additional medical or indemnity \nbenefits. \n2. Claimant did not sustain a compensable disc herniation at work. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports  and  other \nmatters  properly  before  the  Commission,  and  having  had  an  opportunity to  hear  the \ntestimony of the witnesses and to observe their demeanor, I hereby make the following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann. §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant   has   proven   by   a   preponderance   of   the   evidence   that   he \nsustained  a  compensable  injury  to  his  lower  back,  in  the  form  of  a \nherniation at L4-5 , by specific incident on April 8, 2021. \n4. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled    to    reasonable    and    necessary    medical    treatment    of    his \ncompensable  lower  back  injury,  including  the  proposed  lumbar  fusion \nsurgery   and   related   treatment.      Moreover,   he   has   proven   by   a \npreponderance of the evidence that all of his lower back treatment on and \nafter April 8, 2021, that is in evidence was reasonable and necessary. \n\nROGERS – H103439 \n \n5 \n5. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  additional  temporary  total  disability  benefits  from  the  date  last \npaid to a date yet to be determined. \n6. Claimant has proven by a preponderance of the evidence that his counsel \nis  entitled  to  a  controverted  attorney’s  fee on  the  indemnity  benefits \nawarded herein, pursuant to Ark. Code Ann. § 11-9-715 (Repl. 2012). \n7. In  accordance  with  Stipulation  No.  5  and  Finding/Conclusion  No.  5, \nRespondents  have  proven  by  a  preponderance  of  the  evidence  that  they \nare  entitled,  per  Ark.  Code  Ann.  § 11-9-411  (Repl.  2012),  to  an  offset \nconcerning    long-term    disability    benefits    received    by    Claimant    in \nconnection with his April 8, 2021, compensable lower back injury. \nCASE IN CHIEF \nSummary of Evidence \n The hearing witnesses were Claimant and his wife, Sami Rogers. \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into  evidence  in \nthis case were the following:  Claimant’s Exhibit 1, a compilation of his medical records, \nconsisting   of   two   abstract/index   pages   and 38   numbered   pages   thereafter; and \nRespondents’  Exhibit  1,  another  compilation  of  Claimant’s  medical  records,  consisting \nof one index page and 21 numbered pages thereafter. \n\nROGERS – H103439 \n \n6 \nAdjudication \nA. Compensability \n Introduction.    Claimant  has  argued  that  he  suffered  a  compensable  injury  to his \nlower back in a specific incident on April 8, 2021, while working for Respondent Burger \nKing.  Respondents deny this. \n Standards.    In  order  to  prove  the  occurrence  of  an  injury  caused  by  a  specific \nincident identifiable by time and place of occurrence, a claimant must show that:  (1) an \ninjury  occurred  that  arose  out  of  and  in  the  course  of  his  employment; (2)  the  injury \ncaused internal or external harm to the body that required medical services or resulted \nin  disability  or  death;  (3)  the  injury  is  established  by  medical  evidence  supported  by \nobjective  findings,  which  are  those  findings  which  cannot  come  under  the  voluntary \ncontrol  of  the  patient;  and  (4)  the  injury  was  caused  by  a  specific  incident and  is \nidentifiable by time and place of occurrence.  Mikel v. Engineered Specialty Plastics, 56 \nArk.   App.  126,  938  S.W.2d   876   (1997).     If  a   claimant  fails  to   establish   by   a \npreponderance  of  the  evidence  any  of  the  above  elements,  compensation  must  be \ndenied.   Id.  This  standard  means  the  evidence  having  greater  weight  or  convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    The  determination  of  a witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agric. Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  The \n\nROGERS – H103439 \n \n7 \nCommission must sort through conflicting evidence and determine the true facts.  Id.  In \nso doing, the Commission is not required to believe the testimony of the claimant or any \nother  witness,  but may  accept  and  translate  into  findings  of fact  only  those portions of \nthe testimony that it deems worthy of belief.  Id. \n Evidence.    Sami  Rogers  testified  that  she  has  been  married  to  Claimant  since \nOctober  1996.    Very  shortly  thereafter,  Claimant  went  to  work  for  Respondent  Burger \nKing.   With  the  exception of a  two-year  stint in  the  late  1990s  during which  he  worked \nfor  Prestolite,  Claimant  has  worked  for  the  respondent  employer.   Mrs.  Rogers  related \nthat  in  2019,  her  husband  hurt  his  back  at  work.    Despite  three  to  four  months  of \nphysical therapy, his condition did not improve.  He ended up seeing Dr. Parsioon, who \nperformed surgery.  Thereafter, according to her, Claimant no longer had pain, and was \nable  to  resume  his  normal  household  duties.    At  that  time,  she  did  not  observe  him  to \nhave any physical limitations.  Claimant returned to Burger King in August of 2020.  To \nthe extent that  Mrs. Rogers was able to observe him while he was on the job, she did \nnot notice him having any problems performing his work duties.  He did not have to skip \nwork because of back problems at that time. \n Turning to April 7, 2021—the day before Claimant allegedly suffered the injury at \nissue—Ms. Rogers testified that he closed the store that night.  When he came home, \nshe did not observe him to be having any problems.  He did not complain of any pain.  \nClaimant  opened  the  Burger  King  outlet  in  Paragould  the  next  morning,  April  8,  2021.  \nShe  received  a  call  from  him  that  day.    He  informed  her  that  he  had injured  himself \nagain and that he needed to go to the hospital.  Because he wanted to go to the hospital \n\nROGERS – H103439 \n \n8 \nin  Jonesboro  as  opposed  to  Paragould,  Ms.  Rogers  picked  him  up  at  the Burger  King \nand  transported   him   to   the  emergency  room  at   St.   Bernard   Medical   Center   in \nJonesboro.  The following exchange occurred: \nQ. Where   was   he   having   pain   and   what   type   of   pain   was   he \ncomplaining of? \n \nA. It was in his back and it was exactly like it was before he’d had the \nfirst surgery.  Pain, burning in his back, burning and numbing down \nhis legs.  Exactly the same as before. \n \nNo  more  than  11  days  after  the  alleged incident  at  work,  Claimant  returned  to  Dr. \nParsioon.    As  before,  Claimant  initially  underwent  physical  therapy.    But his  back \nproblems worsened. \n Claimant,  who  is  47  years  old  and  a  college  graduate,  testified  that  he  was \nevaluated  at  a  hospital  for  muscle  spasms  in  his  back  when  he  was  in  the  eleventh \ngrade.  He has undergone chiropractic treatment in the past. \n During  the  period  at  issue,  he  was  employed  by  Respondent  Burger  King  as a \nstore manager.  He explained that in this position, he had to be ready to do any job at \nthe location in order to keep the operation running smoothly: \nIt  was  the expectation  of  ownership  that  we would  do  whatever  it  took  to \nmake  sure  our  stores  were  successful.    And  a  lot  of  times,  I  call  myself \n“the fireman,” because if somebody got behind, I would go put the fire out.  \nI  would  help  them  get  caught up.    I  would  go  and  fix  whatever  the  snare \nwas, because the thing with fast food is do it fast.  You’ve got to keep the \nline moving.  When it stops, that’s a problem. \n \n His testimony was that in 2019, he hurt his back when he slipped on a wet floor \nat  the  store  and “fell  straight  down.”  He  described  his  symptoms  as “[b]urning, \nnumbness,  prickly,  itching.    Various  different  sensations,  but  it  ached.”  After  physical \n\nROGERS – H103439 \n \n9 \ntherapy proved unsuccessful in relieving his symptoms, he was referred to Dr. Parsioon.  \nWhen  another  round  of  therapy  did  not  work,  the  doctor  operated.    Asked  if the \nprocedure worked, Claimant replied: \nApart  from  the  pain  of  the  incision,  it  was  amazing.    I  started  crying, \nbecause  the  pain  had  left.    It  was  gone.    My  leg  wasn’t  numb  anymore.  \nMy ache in my hip was gone.  My back was—it felt—it felt amazing. \n \nPrior to this surgery, Claimant kept at his job at Burger King, but with restrictions: \nI  was  not  allowed  to  lift,  I  believe  it  was  over  five  pounds.    That  was  the \nrestrictions, but I continued to work.  I was on my feet most of the day, just \nlike  normal.    I  did  a  lot  of  paperwork  and  things  that  would  normally  wait \nuntil  I  had  time  to  go  to  the  office,  but  I  still  worked  on  the  floor.    I  still \nexpedited,  which  means  I  filled  orders  and  got  them  out  to  customers.   I \nran  trays  out  to  the  tables.    I  still  worked  on  boards  [where  sandwiches \nwere  assembled].    I  still  made  sandwiches  and  things  like  that.    I  wasn’t \nable to bring product from the freezer out to the floor. \n \nFollowing  the  operation,  Claimant  was  off  work  for  about  ten  weeks.    Then, in  August \n2020,  he  went  back  to  Burger  King  and  resumed  his  full  role  as  manager.  He  was \nassigned  an  impairment  rating  of  eight  or  nine  percent  to  the  body  as  a  whole  as  a \nconsequence of this injury. \n Regarding  the  events  of  April  8,  2021,  Claimant  testified  that  he  arrived  at  the \nstore at 4:50 a.m.  He continued working in various capacities.  Except for counting the \nmoney  drawers  prior  to  opening,  all  of  his  tasks  took  place “on  the  floor”  because  no \nother  management  person  was  present.    At  approximately  1:40  to  1:45 p.m.,  he  took \nover  the  duties  of  the  sandwich  board,  an  insulated stainless  steel  workstation \napproximately 12 feet long where all broiled products of the restaurant were assembled.  \nHe related: \n\nROGERS – H103439 \n \n10 \nI  was  making  sandwiches  on  the  board.    I  had  dropped  a  bun  [into  the \ntoaster] and I had to go to the other end to get a . . . wrap and c[o]me back \nand  mark  my  wrap,  because  you  always  mark  your  wrap  while  you’re \nwaiting  on  the  bun  to  toast.    It  saves  time.    When  the  bun  dropped from \nthe  toaster  into  the  tray,  I  reached—I  turned,  pivoted  at  my  hips,  and \nreached with my right arm . . . I had to lean.  I was too far down the board   \n.  .  .  I  felt  a  pop  in  my  back  .  .  .  [i]f  you’ve  ever  been  shocked  by  an \nelectrical cord or stuck your finger in a light socket, it’s a powerful jolt, and \nI felt that from my back all the way down to the top of my foot.  It would be \nlike  a  strike  of  lightning  hit  [descriptive  sound]  like  quick.    It  was  just  like \nthat. \n \nThereafter, Claimant leaned over, and then squatted, in an effort to relieve the  tension \nin his back.  But this proved fruitless; his back “started knotting up and cramping.”  Two \nco-workers  noticed  his  movements  and  asked  him  if  he  was  okay.    His  response was \nthat he back was “on fire,” that he was unsure what was wrong.  Claimant  related that \nhis  intention  was  to  continue  making  sandwiches.  However,  the  co-worker  whom  he \nhad  relieved  returned  to  the  workstation.    So  Claimant  went  to  his  office  and “tried  to \ncollect [him]self, because [he] was scared.”  Asked why he had become frightened, he \nresponded:  “Because I had felt this pain before . . . [i]n 2019, when I injured my back \nthe first time.”  It was at this point that he had noticed that he had accidentally urinated \non himself. \n It  was  Claimant’s  testimony  that  his  symptoms  were  in  the “[s]ame  general \narea”—a palm-sized  spot—as  that  affected  in  the  2019  incident.  The  following \nexchange took place on cross-examination: \nQ. Now you had indicated to me before [during Claimant’s deposition] \nthat your back was doing like it did before or felt like it did before? \n \nA. I  was  having  symptoms  that  were  very  close  to  what  I  was  having \nbefore [in 2019], yes. \n \n\nROGERS – H103439 \n \n11 \n Per  Claimant,  he  contacted his  supervisor, District  Manager  Amy  Ketchum,  and \ninformed  her  that  he  had  hurt  his  back.    When  she  asked  him  if  an ambulance  was \nneeded, he responded that he would have his wife transport him so that he could treat \nat St. Bernard.  While waiting for his spouse to arrive at the store, Claimant filled out an \naccident  report  regarding  his  injury.    As  he  was  leaving  with  her, he “was  bent  over \nalmost parallel to the ground . . . [unable to] stand up straight.  Mrs. Rogers took his arm \nto support him during the walk to their vehicle, and then helped him get into his seat. \n At  the  hospital,  Claimant  was  transported  inside  in  a  wheelchair.    He  related  to \ntreating  personnel  what  had  happened.    Claimant  underwent  an  MRI.    Because  a \nneurologist was not on duty at St. Bernard, Dr. Parsioon was contacted.\n1\n  He was given \nan  off-work  slip  for  three  days.    While  he  was  at  home  during  that  time, he took \nIbuprofen,  applied  ice  to  his  back,  and  performed  the  therapy  exercises he  had  been \ngiven previously. \n Claimant  went  back  to  work  the  following  Monday.    The  day  began with  his \ncatching up on restaurant paperwork as well as filling orders in the front.  However, this \nchanged when his assistant manager had to leave.  The following exchange occurred: \nQ. Tell me what you had to start doing now? \n \nA. I was filling orders for drive-thru and front counter both at the same \ntime, so there were three of us up front and two in the kitchen.  We \nnormally  have  a  first  window,  a  second  window,  and  a  bunch  of \nother  people,  but  I  was  in  the  middle  and  I  had  to  fill  every  single \norder that was coming through. \n \nQ. And what was your pain like? \n \n \n1\nI note that this is at odds with the record of this visit, which reflects that Dr. Harry \nFriedman was consulted.  See infra. \n\nROGERS – H103439 \n \n12 \n \nA. It was intense.  It was very high. \n \nClaimant alerted his supervisor of this situation and his fear that the restaurant’s level of \nservice  was  suffering.    The  vice  president  of  company  operations,  John  Echimovich, \ncalled him.  After being informed that while Claimant had been taken off work for three \ndays, he had been instructed to see Parsioon as soon as possible, Echimovich told him \nthat he had to leave work.  Claimant did as he was told; and his testimony was that he \nhas not returned to work there since then. \n When  Claimant  saw  Dr.  Parsioon,  he  first  underwent  conservative  treatment  in \nthe  form  of  four  weeks  of  physical  therapy.    Thereafter,  the  doctor  referred  him  to  Dr. \nBrophy.   It  was  Claimant’s understanding  that  Parsioon  did not  perform  spinal  fusions, \nbut  that  Brophy  specialized  in  them—and  that  this  was  the  reason  for  the  referral.  \nAccording  to  Claimant,  after  he  saw  Dr.  Brophy,  a  representative  of  the  respondent \ncarrier called him to inform him that his workers’ compensation claim was being denied.  \nSince  then,  he  has  returned  to  Parsioon  for  a  follow-up  visit.    The  following  exchange \ntook place on cross-examination: \nQ. Have you used [your health insurance] to go back to any doctor in \nrelation to any of these back complaints for treatment? \n \nA. I  haven’t  received  treatment  from  a  doctor  because  I’ve  just  been \non wait  for  this  [the  hearing  process]  to  happen,  for  us  to  go \nthrough the process of workman’s comp. \n \nIn turn, the following occurred on redirect: \nQ. Do you know if—if you were even to try with Medicaid, if they would \npay for your surgery? \n \n\nROGERS – H103439 \n \n13 \nA. I was afraid to ask them for it because I thought that I might get in \ntrouble  for  fraud  by  claiming  an  injury  from  a  previous  thing  and  I \nknew that there was litigation.  So I was hesitant to even ask. \n \n. . . \n \nQ. Do you want to have surgery? \n \nA. Yes. \n \n Medical  Records.    The  records  in  evidence  reflect  that  Claimant  underwent  a \nlumbar MRI on April 29, 2015, that showed moderate bilateral spondylosis at L4-  5.  He \nunderwent  another  MRI  on  February  11,  2019—the  same  day  that,  per  his  testimony, \nhe hurt his back previously at Burger King.  In that instance, the report read in pertinent \npart: \nL4-L5  has  bilateral  pars  defects.    Midline  to  right-sided  disc  extrusion \nextending  7  mm  superior  to  the  disc  space.    There  is  compression  of \nthecal  sac.    With  ligamentous  thickening  there  is  moderate  stenosis  but \nCSF  is  still  seen  surrounding  the  nerve  roots.    The  right  S1  nerve  root \nappears  more  compressed  than  the  right.    Very  similar  to  previous  CT.  \nCSF  is  also  bulging.    Anteriorly  from  the  pars  defect  on  the  left  side \nproducing  mild  effect  on  the  thecal  sac.    Is  also  some  significant  right  or \nleft foraminal stenosis.  Worse on the right. \n \n. . . \n \nIMPRESSION: \nExtruded disc herniation at L4-5 with compression of thecal sac in the right \nS1 nerve root. \n \nAnother MRI on September 12, 2019, showed: \nRedemonstration of diffuse disc bulge at L4-L5 with superimposed central \ndisc extrusion with cranial migration.  This mildly narrows the spinal canal.  \nBilateral  neural  foraminal  stenosis  at  this  level  with  contact  of  the  exiting \nbilateral L4 nerve roots. \n \nOne performed on March 11, 2020, reflected the following: \n\nROGERS – H103439 \n \n14 \nL4-L5:  There is broad-based disc bulging at this level with slight superior \nextrusion  of  the  bulging  disc,  as  well  as  facet  joint  hypertrophy.    This \nresults  in  mild  to  moderate  spinal  stenosis  to  7mm  as  well  as  bilateral \nforaminal stenosis. \n \n. . . \n \nIMPRESSION:    Multilevel  degenerative  changes  with  spinal  stenosis  and \nbilateral neural foraminal stenosis at L4-L5. \n \n On  July  9,  2020,  Claimant  returned  to  Dr. Parsioon and  stated  that  his  leg pain \nhad  resolved  completely.    Only  mild  lower  back  pain  (which  the  doctor  said  was \nmuscular in nature), right hip pain, and numbness in the right knee area remained.  The \ndoctor  instructed  him  to  undergo  four  weeks  of  physical  therapy  prior  to  a  final \nevaluation and release from treatment.  Thereafter, on August 26, 2020, Parsioon found \nhim to be at maximum medical improvement as of August 20, 2020, and released him.  \nIn so doing, the doctor assigned him an impairment rating of eight percent (8%) to the \nbody as a whole.  On that date, he was noted to have only “minimal low back pain.” \n Following  the  incident  at  issue,  on  April  8,  2021,  Claimant  presented  to  St. \nBernard Medical Center.  The report of his emergency room visit shows that he related \nto  treating  personnel  that  he  had  been “at  work  and  felt  a  sudden  pop  in  his  low  back     \n. . . [w]hich caused him to lose control of his bladder.  He had sharp pain that radiated \ndown the right lower extremity.”  As part of this visit, he underwent yet another lumbar \nMRI.  The report\n2\n thereof reads in pertinent part: \n \n \n2\nThis report has handwritten notations on it.  The Prehearing Order includes the \nfollowing language: \n \n[T]he   parties   are   advised   that   exhibits   should   not   be   highlighted, \nunderlined,  or  contain  any  marginal  notations.    If  exhibits  are  altered  in \n\nROGERS – H103439 \n \n15 \nAt L4-L5, broad-based diffuse disc bulge with more focal right paracentral \nand foraminal disc herniation.  There is additional central disc component \nwith some superior migration of disc material.  There is severe narrowing \nof the right lateral recess and right neural foramina.  There is moderate left \nneural foraminal narrowing. \n \n. . . \n \nImpression: \n1. Broad-based  disc  bulge  with  more  focal  right  paracentral  and \nforaminal disc herniation at L4-5.  There is severe narrowing of the \nright  lateral  recess  and  right  neural  foramina.    There  is  moderate \nleft neural foraminal narrowing. \n \nThe   emergency   room   physician,   Dr.   Jonathan   Frego,   consulted   with   Dr.   Harry \nFriedman,  who  was  the  neurosurgeon  on-call  for  Dr.  Parsioon,  and  recommended  a \nsteroid dose pak and pain control as needed. \n On  April  22,  2021,  Claimant  went  to  Dr.  Parsioon,  as  had  been  recommended \nduring  the  aforementioned  emergency  room  visit.    Parsioon’s  report  reads  in  pertinent \npart: \nHISTORY  OF  PRESENT  ILLNESS:  This  is  a  45-year-old  gentleman \nwhom I initially saw on February 27, 2020, for evaluation of back and right \nlower  extremity  pain  after  an  on-the-job  injury  on  February  11,  2019.    I \nsent him for an MRI of the lumbar spine which showed a lateral ruptured \ndisc   at   L4/L5.      He   has   since   undergone   a   right   lateral   L4/L5 \nmicrodiscectomy  on  May  26,  2020.    He  did  very  well  after  surgery  with \nresolution of his symptoms and weakness.  He was released to work with \nregular  duties  at  MMI  and  an  8%  PPI  rating  based  on American  Medical \n \nany  fashion,  it  will  be  necessary  to  substitute  those  pages  before  the \ntranscript  is  prepared.    Failure  to  comply  with  the  above  directives  may \nresult  in  sanctions,  including  the  exclusion  of  the  medical  records  from \nevidence. \n \nThe  notations  were  not  discovered  until  after  the  record  was  closed.    There  is  no  way \nfor me to determine who made them.  I am not permitted to engage in speculation and \nconjecture.  See Dena Construction Co. v. Herndon, 264 Ark. 791, 796, 575 S.W.2d 155 \n(1979).  For these reasons, I am giving no weight whatsoever to the notations. \n\nROGERS – H103439 \n \n16 \nAssociation Guides to Evaluation of Permanent Impairment, Fourth Edition \non August 8, 2020. \n \nHe has been referred back to me for evaluation of a new on-the-job injury \non April 8, 2021, of the back and right lower extremity.  He states that o n \nthe date of injury he was making sandwiches and turned sideways to pick \nsomething  up  and  felt  a  pop  in  his  back.    He  started  having  a  burning \nsensation  in  the  lumbar  area.    He  went  to  the  office  and  noticed  he  had \nwet  his  pants  with  urinary  incontinence  without  noticing  it;  however,  he \nstates that was just one episode and has not happened since then. \n \nHe  went  to  the  Emergency  Room  in  Jonesboro,  Arkansas  that  day.    He \nwas  evaluated  with  an  MRI  of  the  lumbar  spine  and  told  him  he  has  two \nruptured   discs.      Since   there   was  no   neurosurgeon   on   call   for   the \nEmergency  Room  in  Jonesboro  and  I  was  out  of  town  they  apparently \ntalked to Dr. Harry Friedman, who told them to start him on steroids, give \nhim  medication,  and  make  an  appointment  for  him  to  come  and  see me.  \nThree days later after the injury, he went back to work with limited duties \nand his boss let him work for two days, but then said that he needed to go \nhome till he sees me since his work restrictions were only for those days.  \nHe has not worked since those few days of restricted-duty work. \n \nOn  today’s  visit,  he  is  here  with  his  wife.    He  still  has  back  pain  and  the \nburning  sensation  in  the  lumbar  area.    The  pain  [g]oes  down  his  right \nlower  extremity  to  the  top  of  his  right  foot.    He  states  the  right  lower \nextremity  feels  weak  to  him.    He  states  his  pain  is  severe  and  increases \nwith  activity and  long periods of  sitting  and standing.    The  only  thing  that \nrelieves  the  pain  and  makes  it  better  is  when  he  lays  down  in  bed.    He \nalso complains of some numbness in  the lateral aspect of the right thigh, \nand right lower extremity.  He says that the area over the lateral aspect of \nthe  right  thigh  from  the  hip  to  the  mid  thigh  itches  all  the  time.    He  also \ngets  spasms  in  his  lumbar  spine.    He  says  his  MRI  of  the  lumbar  spine \nwas done with-and-without contrast. \n \nParsioon  noted  that  he  did  not  have  a  CD  of  the  MRI  that  had  been  performed  after \nClaimant’s  alleged  new  back  injury,  nor  the  records  of  his  April  8,  2021,  visit  to  the \nemergency   room.      He   performed   x-rays,   which   showed,   inter   alia,   grade   1 \nspondylolisthesis at L4-5.  The doctor opined that this particular condition was “[c]hronic \n\nROGERS – H103439 \n \n17 \nand  pre-existing,  and  instructed  Claimant  to  obtain  the  CD  of  his  MRI  along  with  the \nemergency room records. \n When  he  went  back  to  Dr.  Parsioon  on  April  29,  2021,  Claimant  brought  the \naforementioned items.  The report of this visit reads in pertinent part: \nREVIEW  OF  RECORDS:  I  reviewed  this  patient’s  old  records  that  were \navailable to me today. \n \nREVIEW OF STUDIES:  I reviewed an MRI of the lumbar spine with-and-\nwithout   contrast   dated   April   23,   2021,   which   showed   postoperative \nchanges  of  the  right  L4-L5  lateral  discectomy  with  spondylosis,  bilateral \npars defect, and grade 1 spondylolisthesis at this level.  The review seems \nto show that there is a new ruptured disc over the right paracentral area at \nL4-L5 level with moderate foraminal stenosis. \n \nI  had  the  previous  CDs  of  his  multiple  lumbar  MRIs  in  the  office  and  I \nreviewed all of them today:  [Emphasis in original] \n \nI  reviewed  an  MRI  of  the  lumbar  spine  dated  February  11,  2019,  which \nwas  before  surgery.    This  showed  a  small  right  paracentral  disc  bulge  at \nL4-L5, a lateral ruptured disc on the right side at L4-L5, and spondylosis. \n \nI  reviewed  an  MRI  of  the  lumbar  spine  March  11,  2020,  which  showed  a \nsmall central L4-L5 disc bulge and right lateral L4-L5 ruptured disc without \nany paracentral component to the disc rupture or disc bulge. \n \nIMPRESSION:  1.    Comparing  those  two  MRIs  with  this  recent  MRI  of \nApril  23,  2021,  it  definitely  looks  like  he  has  a  right  L4-L5  paracentral \nruptured  disc.    This  has  caused  foraminal  stenosis  for  him.   In  my \nopinion, this is a new problem.  [Emphasis added] \n \n A  May  13,  2021,  electrodiagnostic  study  showed  no  evidence  of  right  lumbo- \nsacral  radiculopathy.   Claimant  next underwent  a  lumbar myelogram, along with  a  CT.  \nThe findings thereof included: \nRight  L4  pars  defect  .  .  .  L4-5  spinal  canal  stenosis.    Spinal  instability  at \nthe L4-5 level with increase in L4 spondylolisthesis on L5 between flexion \nand   extension   views   of   more   than   3   mm   in   upright   position.      L4 \nanterolisthesis  of  up  to  9  mm  with  patient  in  upright  position  with  flexion, \n\nROGERS – H103439 \n \n18 \ncompared to supine position . . . [r]ight lateral of posterolateral disc bulge \nat  L4-5.    Soft  tissue  opacity  within  the  right  L4-5  neuroforamen  that  may \nrepresent  disc  material  versus  epidural  scar.    Lumbar  spine  MRI  without \nand with contrast enhancement may add further information. \n \nWhen Parsioon saw Claimant once more on May 24, 2021, the doctor wrote: \nI  reviewed  a  CT  myelogram  of  the  lumbar  spine  with  a  mixed  injection \naccording to the report by the radiologist who performed it.  I reviewed the \nCT myelogram and the report, which showed a pars interarticularis defect \nat  L4-L5  level.    There  was  also  spondylolisthesis  at  L4-L5  level  and  is \napparently  with  some  motion  when  they  did  the  study  in  supine  position \nwith  movement.   There  was  some  vacuum  disc  phenomenon  at  L4-L5 \nlevel.    The  previous  surgery  on  the  right  with  postoperative  changes  was \nseen  and  also  the  partial  facetectomy.   Again,  this  in  my  opinion,  just \nlike  on  his  MRI,  was  suggested  that  there  might  be  a  right  L4-L5, \nparacentral  and  foraminal  disc  at  this  level  which  may  be  new.  \nHowever,   because   of   the   mixed   injection,   previous   scar   tissue \nformation, and spondylolisthesis that he has at L4-L5 level, it is very \ndifficult to 100% say that he has this.  [Emphasis added] \n \n Claimant again saw Dr. Parsioon on July 12, 2020.  The doctor wrote that the CT \nmyelogram “showed the question of another ruptured disc at the same area on the right \nat L4-L5 level,” and that the pars defect  and the spondylosis that were found are “old.”  \nHe added: \n[Claimant]  says  physical  therapy  helped  some  of  his  pain,  but  when  he \nwalks, he gets back pain which radiates down to the right lower extremity \nand he has to stop walking.  He also complains of some jerky movements \nin the muscles of the lateral aspect of the right thigh, which is also present \non examination today.   I believe these are fasciculations.   The atrophy of \nthe right leg, which improved almost back to normal after the first surgery, \nhas worsened again, and he has started losing muscle in the right leg and \nis weak in the right thigh . . . [h]e also complains of numbness in the lateral \naspect of the right hip all the way down laterally to the right ankle area. \n \nParsioon informed Claimant that an epidural block would not help his pain; and that due \nto  his  failure  to  respond  to  conservative  treatment  and  to  the  nature  of  his  previous \n\nROGERS – H103439 \n \n19 \nsurgery, he was now “a candidate for an L4-L5 decompression and fusion.”  The doctor \nrecommended that he see Dr. Brophy for this. \n Brophy  saw  Claimant  on  August  19,  2021.    The  report  of  that  visit  reads  in \npertinent part: \nNeurodiagnostic Assessment \nLumbar MRI, with, and without contrast, dated 8 April, 2021 demonstrates \na right paracentral L4-5 HNP extending slightly superior to the disc space.  \nThe  previous  far  lateral  disc  herniation  has  been  removed.    There  is  a \npossible   L4   pars   defect.      Other   levels   demonstrate   no   significant \nabnormalities.    The  MRI  does  not  demonstrate  definite  evidence  of \nspondylolisthesis. \n \n. . . \n \nImpression: \nChronic back and right lower extremity radicular pain secondary to an L4-5 \nGrade 1 spondylolisthesis with L4 pars defects and a right paracentral L4-\n5 HNP. \n \nPlan: \nThe results of the radiographic studies and clinical situation were reviewed \nin  detail  with  Mr.  Rogers  and  his  family.    We  discussed  the  option  of \ncontinued  activity  modification,  anti-inflammatories  and  consideration  of \nalternative  employment  versus  a  lumbar  epidural  steroid  injection  on  the \nright at L4-5.  Based on the severity of his pain and his desire to return to \nwork  at  full  activities  as  soon  as  possible,  he  is  requesting  surgical \nintervention.    The  L4-5  posterior  lumbar  interbody  fusion  procedure  was \ndescribed . . . [w]ith regard to causation, in my opinion, the etiology of \nhis  disc  herniation,  and ongoing  back  pain  is  related  to  his  pre-\nexisting L4 pars defect and Grade 1 L4-5 spondylolisthesis which is \nnot related to a work injury or work activities.  In my opinion, further \ntreatment would be more appropriately handled through his personal \ninsurance.  [Emphasis added] \n \n Claimant’s  counsel  wrote  Dr.  Parsioon  on  October  19,  2022,  requesting  that  he \nrespond  to  the  opinion  of  Dr.  Brophy  highlighted  above.    That  reply,  which  Parsioon \nauthored on November 28, 2022, states in pertinent part: \n\nROGERS – H103439 \n \n20 \nThis is written in response to your letter of October 19, 2022, regarding the \nabove–mentioned  individual  who  is  a  patient  of  mine.    I  reviewed  your \nletter  and  also  reviewed  all  of  his  medical  records  to  be  able  to  answer \nyour  questions  .  .  .  I  also  was  not  upset  about  Dr.  Brophy’s  recommen- \ndation,  as  you  know,  doctors  are  entitled  to  their  medical  opinion.    I  was \nbasically  disappointed  that  he  did  not  feel  that  this  was  coming  from  his \nwork  injury  but,  because in  my  opinion,  this  new  ruptured  disc  in  his \nback is definitely related to his new  date of  injury of April 8, 2021.  I \nstill disagree with Dr. Brophy’s opinion that this problem is not work \nrelated  to  his  new  injury,  which  is  evident  on  the  MRI  after  the  new \ninjury.  I still believe that this gentleman needs to have the recommended \ndiscectomy and fusion.  [Emphasis added] \n \nDiscussion.    In  this  case,  the  evidence  is  clear  that  Claimant  has  objective \nfindings  of  an  injury  to  his  lower  back.    These  findings  come  from an  MRI  that  took \nplace\n3\n  on  the  alleged  date  of  injury,  April  8, 2021, and  reflect  that  Claimant  suffered a \nright paracentral herniation at L4-5. \n As  for  whether this  lumbar  condition  arose  out  of  and  in  the  course  of  his \nemployment at Respondent Burger King, and was caused by a  specific incident that is \nidentifiable by time and place of occurrence, the evidence shows that before the April 8, \n2021,   incident,   Claimant   was   able   to   perform   the   physical   requirements   of   his \nmanagerial  job  without  any  problems.    Mrs.  Rogers  corroborated  Claimant’s  testimony \non  this  matter.    She  added  that  she  did  not  observe  him  to  be  having any  physical \nproblems when he came home from work the night before the incident in question. \n However, this changed the afternoon of April 8, 2021.  Around 1:40 to 1:45 p.m., \nhe began working the sandwich board.  While performing the duties at this workstation, \n \n \n3\nAs set out above, Dr. Parsioon twice stated in his April 29, 2021, report that this \nMRI  took  place  on April  23, 2021.    But  no MRI  report bearing this  date  is  in evidence; \nand  Parsioon  does  not  reference  the  April  8  report  despite  his  notation that  he  had \n\nROGERS – H103439 \n \n21 \nhe pivoted  and  reached  to  retrieve  a  bun  that  had  dropped out of the toaster  when  he \nfelt his back “pop.”  Once the sandwich maker whom he was covering returned to work, \nClaimant went to his office and called his supervisor to inform her of the injury.  He had \nhis  wife  pick  him  up  at  the  restaurant  and  drive  him  to  the  hospital.    Mrs.  Rogers \ncorroborated  this.   The  records  of  the  emergency  room  visit  are  in  evidence  and  have \nbeen discussed above.  I credit the testimony of these witnesses. \n A  causal  relationship  may  be  established  between  an  employment-related \nincident  and  a  subsequent  physical  injury  based  on  the  evidence  that  the  injury \nmanifested  itself  within  a  reasonable  period  of  time  following the  incident,  so  that  the \ninjury  is  logically  attributable  to  the incident,  where  there  is  no  other  reasonable \nexplanation  for  the  injury. Hall  v.  Pittman  Construction Co.,  234  Ark.  104,  357  S.W.2d \n263 (1962).  That is certainly the case here. \n Respondents  have  sought  to  highlight  the  opinion of  one  of  Claimant’s  treating \nphysicians concerning the cause of Claimant’s disc herniation.  Dr. Brophy wrote:  “[I]n \nmy  opinion,  the  etiology  of  his  disc  herniation,  and ongoing  back  pain  is  related  to  his \npre-existing L4 pars defect and Grade 1 L4-5 spondylolisthesis which is not related to a \nwork injury or work activities.”  Taking the opposite tack was Dr. Parsioon, who  opined \nnot only was “the new ruptured disc . . .  definitely related to [the] new date of injury of \nApril 8, 2021,” but that he disagrees with Brophy regarding this. \n \nClaimant’s radiological reports.  Thus, I have concluded that the references are a mere \nscrivener’s error, and that he was in fact referring to the April 8 report. \n\nROGERS – H103439 \n \n22 \n In Cooper v. Textron, 2005 AR Wrk. Comp. LEXIS 32, Claim No. F213354 (Full \nCommission Opinion filed February 14, 2005), the Commission addressed the standard \nwhen examining medical opinions concerning causation: \nMedical  evidence  is  not  ordinarily  required  to  prove  causation,  i.e.,  a \nconnection between an injury and the claimant's employment, Wal-Mart v. \nVan  Wagner,  337  Ark.  443,  990  S.W.2d  522  (1999),  but  if  a  medical \nopinion  is  offered  on  causation,  the  opinion  must  be  stated  within  a \nreasonable  degree  of  medical  certainty.    This  medical  opinion  must  do \nmore  than  state  that  the  causal  relationship  between  the  work  and  the \ninjury  is  a  possibility.    Doctors’  medical  opinions  need  not  be  absolute.  \nThe  Supreme  Court  has  never  required  that  a  doctor  be  absolute  in an \nopinion  or  that  the  magic  words  “within  a  reasonable  degree  of  medical \ncertainty”  even  be  used  by  the  doctor;  rather,  the  Supreme  Court  has \nsimply  held  that  the  medical  opinion  be  more  than  speculation;  if  the \ndoctor  renders  an  opinion  about  causation  with  language  that  goes \nbeyond  possibilities  and  establishes  that  work  was  the  reasonable  cause \nof  the  injury,  this  evidence  should  pass  muster.   See,  Freeman  v.  Con-\nAgra  Frozen  Foods,  344  Ark.  296,  40  S.W.3d  760  (2001).    However, \nwhere  the  only  evidence  of  a  causal  connection  is  a  speculative  and \nindefinite medical opinion, it is insufficient to meet the claimant's burden of \nproving causation.  Crudup v. Regal Ware, Inc., 341, Ark. 804, 20 S.W.3d \n900  (2000); KII  Construction  Company  v.  Crabtree,  78  Ark.  App.  222,  79 \nS.W.3d 414 (2002). \n \n Based  on  my  review  of  the  totality  of  the  evidence,  I  credit  the  opinion  of  Dr. \nParsioon over that of Brophy.  As the medical records reflect, Brophy saw Claimant on \nonly  one occasion:    August  12,  2021.    Parsioon,  on  the  other  hand,  has been  treating \nClaimant for years—and has performed spinal surgery on him.  Moreover, the opinion of \nDr. Parsioon that the work-related incident of April 8, 2021, was the cause of Claimant’s \nherniation  comports  with  the  balance  of  the  evidence  as  discussed supra.    The \nCommission  is  authorized  to  accept  or  reject  a  medical  opinion  and  is  authorized  to \ndetermine its medical soundness and probative value.  Poulan Weed Eater v. Marshall, \n\nROGERS – H103439 \n \n23 \n79  Ark.  App.  129,  84  S.W.3d  878  (2002); Green  Bay  Packing  v.  Bartlett,  67  Ark.  App. \n332, 999 S.W.2d 692 (1999). \n In making this finding, I am well aware of Claimant’s previous back problems.  As \nRespondents pointed out and Claimant acknowledged, the pain that he experienced on \nApril 8, 2021, was in the same area as his 2019 injury—pain that disappeared following \nhis  microdiscectomy.    But  I  note  that  an  employer  under  the  Arkansas  Workers’ \nCompensation  Act  takes  an  employee  as  the  employer  finds  him.    Employment \ncircumstances  that  aggravate  pre-existing  conditions  are  compensable.   Nashville \nLivestock  Comm.  v.  Cox,  302  Ark.  69,  787  S.W.2d  64  (1990).    A  pre-existing  infirmity \ndoes  not  disqualify  a  claim  if  the  employment  aggravated,  accelerated,  or  combined \nwith the infirmity to produce the disability for which compensation is sought.  St. Vincent \nMed. Ctr. v. Brown, 53 Ark. App. 30, 917 S.W.2d 550 (1996).  “An aggravation, being a \nnew injury with an independent cause, must  meet the requirements for a compensable \ninjury.”   Crudup  v.  Regal  Ware,  Inc.,  341  Ark.  804,  20  S.W.3d  900  (2000);   Ford  v. \nChemipulp  Process,  Inc.,  63  Ark.  App.  260,  977  S.W.2d  5  (1998).    This  includes  the \nprerequisite  that  the  alleged  injury  be  shown  by  medical  evidence  supported  by \nobjective  findings.   See  Heritage  Baptist  Temple  v.  Robison,  82  Ark.  App.  460,  120 \nS.W.3d 150 (2003).  Again, objective findings of a new lumbar injury are readily present \nhere. \n In  summary,  the  evidence  shows  that  Claimant  sustained  an  injury  to  his  lower \nback  that  arose  out  of  and  in  the  course  of  his  employment  with  Respondent  Burger \nKing.    The  injury  aggravated,  accelerated,  or  combined  with  Claimant’s  pre-existing \n\nROGERS – H103439 \n \n24 \nlumbar spine condition to produce the disability for which compensation is being sought.  \nThe  injury  caused  internal  or  external  harm  to  Claimant’s  body  that  required  medical \nservices.  The injury has been established by medical evidence supported by objective \nfindings.  Finally, the injury was caused by a specific incident and is identifiable by time \nand  place  of  occurrence:    his  work  at  the  sandwich  board  station  on  the  afternoon  of \nApril 8, 2021.  Claimant has, consequently, proven by a preponderance of the evidence \nthat he suffered a compensable lower back injury by specific incident. \nB. Medical Treatment \n Introduction.   Claimant  has  alleged  that  he  is  entitled  to  reasonable  and \nnecessary   medical   treatment   in   connection   with   his   alleged lower   back   injury.  \nRespondents disagree. \n Standards.    Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012) states \nthat an employer shall provide for an injured employee such medical treatment as may \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \n\nROGERS – H103439 \n \n25 \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.  I find that Claimant has proven by a preponderance of the evidence \nthat  he  is  entitled  to  reasonable  and  necessary  medical  treatment  of  his  compensable \nlower  back injury,  including  the  proposed  lumbar fusion  surgery  and  related  treatment.  \nIn  so  doing,  I  credit  Claimant’s  testimony  that  he  wants  to  have  this  operation.  \nMoreover, I have reviewed his treatment records that are in evidence, and I find that he \nhas  proven  by  a  preponderance  of  the  evidence  that  all  of  the  treatment  of  his \ncompensable  lower  back  injury  that  is  in  evidence—on  and  after  April  8,  2021—was \nreasonable and necessary. \n\nROGERS – H103439 \n \n26 \nC. Temporary Total Disability \n Introduction.    Claimant  has  also  alleged  that  he  is  entitled  to  temporary  total \ndisability benefits from the date last paid to a date yet to be determined.  Respondents \ndisagree with this. \n Standards.    The  compensable  injury  to  Claimant’s  lower  back  is  unscheduled.  \nSee Ark. Code Ann. § 11-9-521 (Repl. 2012).  An employee who suffers a compensable \nunscheduled  injury  is  entitled  to  temporary  total  disability  compensation  for  that  period \nwithin the healing period in which he has suffered a total incapacity to earn wages.  Ark. \nState  Hwy.  &  Transp. Dept.  v.  Breshears,  272  Ark. 244,  613  S.W.2d  392  (1981).    The \nhealing  period  ends  when  the  underlying  condition  causing  the  disability has  become \nstable  and  nothing  further  in  the  way  of  treatment  will  improve  that  condition.   Mad \nButcher, Inc. v. Parker, 4 Ark. App. 124, 628 S.W.2d 582 (1982).  Also, a claimant must \ndemonstrate that the disability lasted more than seven days.  Id. § 11-9-501(a)(1). \n Evidence/Discussion.    During  the  hearing, Claimant  testified  that  Respondents \npaid him temporary total disability benefits until around the time Dr. Brophy opined that \nClaimant’s L4-5 herniation and back pain were not work-related.  That opinion  led to a \nrepresentative  from  the  respondent  carrier  calling  him  to  inform  him  that  his workers’ \ncompensation  benefits  would  cease.    The  payment  to  him  of  temporary  total disability \nbenefits did end at that point. \n The  evidence  establishes  that  Claimant  at  that  point  was  still  in  his  healing \nperiod—and  that  he  has  remained  so.    Neither  Dr.  Brophy  nor  Dr.  Parsioon—or  any \nother  provider,  for  that  matter—has  released  him  from  treatment  since  that  time.    The \n\nROGERS – H103439 \n \n27 \nlast  treatment  he  underwent  in  connection  with  his  back  was  with  Parsioon  on \nSeptember 16, 2021.  The doctor wrote: \nFrom my standpoint, there is nothing else that I can do for him surgically, \nbecause  again, I  do not  perform  this  type of  surgical  procedure.   He  had \nbeen  taken  off  work  by  me  since  April  22,  2021,  and I  believe  that  he \nneeds to stay off work due to the severity of his pain and condition. \n \n(Emphasis  added)  As  I  did  regarding  the matter of  causation  (see supra),   I  credit  this \nopinion by Dr. Parsioon. \n In  making  this  finding,  I  note  that Claimant’s  credible  testimony  on  this  point \ncorroborates  what  Parsioon  wrote  in  the  above  report.    According  to  Claimant,  he  has \nnot  worked  anywhere  during  the  period  at  issue.    Ms.  Rogers  confirmed  this.   The \nfollowing exchange took place during Claimant’s direct examination: \nQ. What’s keeping you from working? \n \nA. Pain. \n \nQ. Specifically? \n \nA. The more I move, the more I hurt.  When I bend, it hurts.  When I \ntry to lift anything, it hurts.  Even when my daughter sits on my lap, I \nhave  to  lean back  against  the  couch  for  her  to  lean  against  me \nbecause I can’t support her weight.  I have a lot of pain in my lower \nback.    I  have  numbness  down  my  right  leg  and  the  more  I  move \nand the more I do, the worse that becomes. \n \nQ. Can you sit in one position for a long period of time? \n \nA. No,  sir.    In  fact,  right now,  it  hurts  right  now  just  to  sit  in  this  chair \nbecause  I’ve  been  sitting  there  and  sitting  her  and  not  moving.    I \nhave—even when I go to church, I have to get up and walk during \nthe sermon. \n \nQ. Do you still want the surgery [the L4-5 posterior interbody fusion]? \n \nA. Yes, sir. \n\nROGERS – H103439 \n \n28 \n \n. . . \n \nQ. Are  you  able  to  do  the  household  chores  that  you  were  doing \nbefore this incident on April the 8\nth\n? \n \nA. We  have  a  riding  lawnmower  now,  and  I  try  to  use  the riding \nlawnmower.  Before, I used a push mower and a weed eater and all \nthose things.  I can sometimes sit in a chair next to the dishwasher \nand take things from the—from the table, but I can’t like lift over my \nhead real high with any kind of weight at all.  My arms start shaking.  \nI have difficulty doing pretty much everything. \n \nHis  wife  corroborated  this  testimony.    He  added  that  his  back  pain  keeps  him  from \nsleeping well.  This discomfort has led him to ration the doses of Tramadol that he has \nleft, saving them for when his pain is especially severe.  Otherwise, he takes four to five \nIbuprofen tablets at a time. \n Claimant has a bachelor's degree in social science.  His original intention was to \nbecome a teacher and a coach after college.  But his education certificate has expired.  \nHe  worked  for  Burger  King  in  various  capacities.    This  included  being  a  traveling \nmanager.  In this position, he went to franchises owned by the respondent employer in \nArkansas, Illinois, Kentucky, and Missouri, training assistant managers and employees.  \nLater, he became a district manager and then a store manager.  It was while serving in \nthis latter job that he hurt his back in April 2021.  Even when Claimant was working as a \ndistrict manager, he had extensive physical duties.  He related: \nThere was a lot of overseeing.  It also came—we had to clean.  We had to \nscrub walls.  We had to do dishes.  We were working managers, even the \ndistrict manager.  There was many days where I would be on boards  or I \nwould  be  on  a  headset.    You  know,  the  store  manager  would  have \ninterviews, so I would run her store while she was doing interviews. \n \n\nROGERS – H103439 \n \n29 \nAs for the store manager position, he testified: \nWell,  the  store  managers  are  responsible  for  the  entire  property,  from \nboundary  to  boundary,  on  the  operations,  everything:    hiring,  firing, \nscheduling,  money,  safety  procedures,  food  safety,  taking  temperatures, \nordering  trucks,  cleanliness.    That  was  huge.    Any  time  somebody  didn’t \ndo a job, it was up to me to get it done.  If we didn’t have a porter, I had to \nfind a porter.  If we  had somebody not show up for truck, I had to unload \ntrucks.    You  know,  it  was  just  whatever  was  required  .  .  .  [i]t  was  the \nexpectation of ownership that we would do whatever it took to make sure \nour stores were successful . . . I had to work boards, making sandwiches.  \nI  had  to  work  the  broiler,  cooking  food.    I  had  to  bring  stock  in  from the \nfreezer  into  the  kitchen  to  the  smaller  freezers,  boxes  of  Whoppers,  you \nknow, boxes of French fries, frozen product.  Those ranged in weight from, \nyou know, two pounds to 40 pounds, depending on what the product was.  \nI had to scrub floors.  I had to get on ladders and change lightbulbs.  I had \nto pressure wash outside.  I had to take the trash out.  If there was a job to \nbe done in that restaurant, I did it. \n \n The  physical  requirements  of  being  a  store  manager  at  Burger  King  are  best \nexemplified  by  the  fact  that  Claimant  hurt  his  back  while  working  at  the  sandwich \nboard—not while doing paperwork. \n A claimant who has been released to light duty work but has not returned to work \nmay  be  entitled  to  temporary  total  disability  benefits  where  insufficient  evidence  exists \nthat  the  claimant  has  the  capacity  to  earn  the  same  or  any  part  of  the  wages  he  was \nreceiving  at  the  time of  the  injury.   Ark. State  Hwy.  &  Transp.  Dept.  v.  Breshears,  272 \nArk. 244, 613 S.W.2d 392 (1981); Sanyo Mfg. Corp. v. Leisure, 12 Ark.  App. 274, 675 \nS.W.2d 841 (1984).  In Farmers Coop.  v. Biles,  77 Ark. App. 1, 69 S.W.3d 899 (2002), \nthe  Arkansas  Court of  Appeals wrote:  “If,  during  the  period  while  the  body  is  healing, \nthe employee is unable to perform remunerative labor with reasonable consistency and \nwithout  pain  and  discomfort,  his  temporary  disability  is  deemed  total.”  The  medical \nevidence  recounted  above  shows  that  this  was the  situation  here.    During  the  time \n\nROGERS – H103439 \n \n30 \nperiod  at  issue,  Claimant  suffered  from  a  total  incapacity  to  earn  wages.    This  is \nongoing.  Consequently, he has proven by a preponderance of the evidence that he is \nentitled  to  additional  temporary  total  disability  benefits  from  the  date  last  paid  until  a \ndate yet to be determined. \nD. Controversion \n Introduction.    Claimant  has  asserted  that  he  is  entitled  to  a  controverted \nattorney’s fee in this matter. \n Standard.    One  of  the  purposes  of  the  attorney's  fee  statute  is  to  put  the \neconomic  burden  of  litigation  on  the  party  who  makes  litigation  necessary.  Brass  v. \nWeller,  23  Ark.  App.  193,  745  S.W.2d  647  (1998).    In this  case,  the  fee  would  be  25 \npercent  (25%)  of  any  indemnity  benefits  awarded  herein,  one-half  of  which  would  be \npaid by Claimant and one-half to be paid by Respondents in accordance with See Ark. \nCode  Ann.  §  11-9-715  (Repl.  2012).   See Death  &  Permanent  Total  Disability  Trust \nFund v. Brewer, 76 Ark. App. 348, 65 S.W.3d 463 (2002). \n Discussion.    The  evidence  before  me  clearly  shows  that  Respondents  have \ncontroverted Claimant’s  entitlement  to  temporary  total  disability  benefits.    Thus,  the \nevidence preponderates that his counsel, the Hon. Daniel E. Wren, is entitled to the fee \nas set out above. \nE. Offset \n As  the  parties  have  stipulated—and  I  have  accepted—were  Claimant  to  prove \nthat  he is  entitled  to  indemnity  benefits,  Respondents  would  be  entitled  to  an  offset \nunder Ark. Code Ann. § 11-9-411 (Repl. 2012) concerning long-term disability benefits \n\nROGERS – H103439 \n \n31 \nthat  were  paid to him in  connection  with  his alleged  lower  back  injury  of April  8, 2021.  \nHe has proven not only that this alleged injury was compensable, but that he is entitled \nto temporary total disability benefits in connection therewith.  Thus, Respondents have \nshown that they are entitled to the offset\n4\n as outlined above. \nCONCLUSION AND AWARD \n Respondents  are  hereby  directed  to pay/furnish  benefits  in  accordance with  the \nfindings of fact and conclusions of law set forth above.  All accrued sums shall be paid \nin a lump sum without discount, and this award shall earn interest at the legal rate until \npaid,  pursuant  to  Ark.  Code  Ann.  §  11-9-809  (Repl.  2012).   See Couch  v.  First  State \nBank of Newport, 49 Ark. App. 102, 898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a  25  percent  (25%)  attorney’s  fee awarded \nherein,  one-half  of  which  is  to  be  paid  by  Claimant  and  one-half  to be  paid  by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge \n \n \n4\nIn Brigman v. City of West Memphis, 2013 Ark. App. 66, 2013 Ark. App. LEXIS \n73,  the  Arkansas  Court  of  Appeals  held  that  in  situations  where  both  the respondent \nemployer and the Claimant paid a portion of the premium of the policy in question, the \nrespondent employer is entitled to an offset against indemnity benefits owed by them to \nthe extent that they contributed toward the premium.","textLength":60089,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H103439 JAMES ROGERS, EMPLOYEE CLAIMANT MIDAMERICA HOTELS CORP., d/b/a BURGER KING RESTAURANTS, EMPLOYER RESPONDENT PREVISOR INS. CO., CARRIER RESPONDENT OPINION FILED MARCH 15, 2023 Hearing before Administrative Law Judge O. Milton Fine II on December 16, 20...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["back","lumbar","hip","knee","ankle"],"fetchedAt":"2026-05-19T23:09:27.968Z"},{"id":"alj-H205569-2023-03-14","awccNumber":"H205569","decisionDate":"2023-03-14","decisionYear":2023,"opinionType":"alj","claimantName":"Juan Sanchez","employerName":"Creative Wall Systems","title":"SANCHEZ VS. CREATIVE WALL SYSTEMS AWCC# H205569 MARCH 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SANCHEZ_JUAN_H205569_20230314.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SANCHEZ_JUAN_H205569_20230314.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: H205569 \nJUAN CARLOS SANCHEZ,                                                                                  EMPLOYEE                                                                          \nCLAIMANT \n \nCREATIVE WALL SYSTEMS, \nEMPLOYER                                                                                                        RESPONDENT \n \nBRIDGEFIELD CASUALTY INSURANCE COMPANY/ \nSUMMIT COUNSULTING, LLC,  \nCARRIER/THIRD PARTY ADMINSTRATOR (TPA)                                 RESPONDENT \n \n \n         OPINION FILED MARCH 14, 2023        \n        \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Little Rock, \nPulaski County, Arkansas. \n \nClaimant represented by Mr. Degan Clow, Attorney at Law and his Rule XV Law Clerk, Mr. Beau \nDuty, Little Rock, Arkansas. \n \nRespondents represented by Mr. Zachary Ryburn, Attorney at Law, Little Rock, Arkansas. \n \n \nStatement of the Case \nOn December 14, 2022, the above-captioned claim came on for a hearing in Little Rock, \nArkansas.  A pre-hearing telephone conference was conducted on November 9, 2022, from which \na Pre-hearing Order was filed on that same day.  A copy of said order and the parties’ responsive \nfilings have been marked as Commission’s Exhibit No. 1 and made a part of the record without \nobjection. \nStipulations \nDuring the pre-hearing telephone conference, and/or during the hearing the parties agreed \nto the following stipulations: \n\nSanchez- H205569 \n \n2 \n \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n2. All  issues  not  litigated  herein  are  reserved  under  the  Arkansas  Workers’ \nCompensation Act.  \n3. The Respondents have controverted this claim in its entirety.  \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether  or  not  the  employee-employer-insurance  carrier  relationship  existed  on \nMarch 29, 2022,  which the Claimant allegedly sustained injuries to his back and \nneck. \n2. The Claimant’s average weekly wage on the day of his alleged accidental injury of \nMarch 29, 2022.    \n3. Whether the Claimant is entitled to temporary total disability from March 30, 2022 \nuntil a date yet to be determined.  \n4. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \n5. The parties agreed to hold issues number 5 and  6 from the prehearing in abeyance.  \nContentions \n The respective contentions of the parties are as follows: \nClaimant:  \nThe Claimant contends that he was injured in a fall while working for the employer.   He \nfell on March 29, 2022, from some scaffolding that they were using as their working platform as \nthey added plaster to the side of a custom home.  As a result of this fall from the scaffolding, he \nhas suffered a back and neck injury that has limited his ability to find a new job.  To date, he has \n\nSanchez- H205569 \n \n3 \n \nbeen unable to find suitable employment and is entitled to receive temporary total disability  (TTD) \nfrom  the  date  of  the  fall  until  the  date  of  maximum  medical  improvement  (MMI).    It  is  the \nClaimant’s contention that he will be unable to resume working in any position suitable for his \nlevel  of  education  and  experience  due  to  the  injuries  sustained  on  March  29,  2022.    However, \ncounsel for the plaintiff has informed Claimant that the determination of whether to seek PTD or \nPPD should be made after the expert evaluation of his treating specialist physician.  Pending the \ndetermination of the Claimant’s specialist physician regarding the Claimant’s healing period and \nMMI,  Claimant  should  be  entitled  to  PTD  or  PPD  going  forward.    Additionally,  Claimant  is \nentitled to receive coverage for all past and future medical expenses related to his fall on March \n29, 2022. \nThe Claimant contends that his average weekly wage was $720.00, based on 40 hours per \nweek at a rate of $18.00. (TR. 14) \nRespondents: \nThe Claimant did not suffer a compensable injury at work. The Claimant has submitted \nno proof of a compensable injury. \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear  the  testimony  of  the  witnesses  and  observe  their  demeanor,  I  hereby  make  the  following \nfindings  of  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §11-9-704  (Repl. \n2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.      I hereby accept the above-mentioned proposed stipulations as fact. \n\nSanchez- H205569 \n \n4 \n \n \n3. The Claimant was an employee of Mr. Victor Morales and he failed to obtain workers’ \ncompensation coverage. However, Elisei Conjocaru regularly employed Mr. Morales \nas  a  subcontractor  to  perform  residential  and  commercial  plastering.  As  such,  Mr. \nConjocaru is a liable prime contractor pursuant to Ark. Code Ann. §11-9-402.   \n4. The Claimant average weekly wage was $720.00 at the time of his injury.   \n \n5. The Claimant proved by a preponderance of the evidence he sustained a compensable \nneck injury on March 29, 2022.  However, he failed to establish by objective medical \nfindings an injury to his back.  \n6. The Claimant proved by a preponderance of the evidence his entitlement to temporary \ntotal disability from March 30, 2022, to a date yet to be determined. \n7. The Claimant proved by a preponderance of the evidence that all of the treatment for \nrecord  was  reasonably  necessary  to  treat  his  neck  injury.    He  also  proved  that  he  is \nentitled to additional medical treatment as recommended by Dr. Roberts in the form of \nan orthopedic specialist. \n8. The Claimant attorney is entitled to a controverted attorney’s fee on the indemnity \nbenefits awarded herein. \n9. All issues not litigated herein are reserved under the Act.      \n \nSummary of Evidence \nDuring the hearing, Mr. Juan Carlos Sanchez Garcia/the Claimant and Mr. Martine Reyes \nwere the only two witnesses.  \n            The record consists of the December 14, 2022 hearing transcript and the following exhibits: \nSpecifically, Commission’s Exhibit No. 1 includes the Commission’s Prehearing Order filed on \nNovember  9,  2022 and the parties’ responsive  filings; Claimant’s Exhibit  No.  1  is  A  Medical \n\nSanchez- H205569 \n \n5 \n \nExhibit, which is made up of forty-one (41) numbered pages; Claimant’s Exhibit No. 2 includes a \nDocumentary  Non-Medical  Exhibit  consisting  of  seven  (7)  pages; Claimant’s Exhibit No. 3 \nconsists of two pages of Color Photographs; Respondents introduced into evidence the Claimant’s \nOral Deposition of November 18, 2021, which was marked  Respondents’ Exhibit  No. 1 and is \nretained in the Commission’s file; and Respondents’ Exhibit 2 is a Video on USB Flash Drive, \nwhich has been marked accordingly and retained in the Commission's file. \n Additionally,  the  parties  filed  Post-Hearing  Briefs.    These  have  been  blue-backed  and \nmarked as Commission’s Exhibit No. 2.     \nMs. Shannon Tanner, A.O.C., a Certified Spanish Interpreter, translated for the Claimant \nduring hearing.  \n                                                  Background  \n  \n The Claimant testified that he worked as a plaster for Victor Morales.  He also testified \nthat Mr. Morales worked for Elisei.  He confirmed that Mr. Morales told him when to show up  \nfor work each day.  According to the Claimant, Mr. Morales even gave him a ride to  work each \nday.  He agreed that he could be fired by Mr. Morales and would have to look for other work.  \nPer the Claimant, he worked between forty-five (45) and fifty (50) hours per week.  He earned \n$18.00 an hour. Mr. Morales paid the Claimant on a weekly basis.  Mr. Morales supplied the \nClaimant with the tools, supplies and materials for work.  The Claimant confirmed that Mr. \nMorales was in the business of doing plaster work for houses and buildings.  According to the \nClaimant, he worked for Mr. Victor Morales for approximately two (2) years.  \n Regarding the Claimant’s alleged accidental injury on March 29, 2022.  He gave a detailed \ndescription of his fall off the top of scaffolding on to the concrete.  At the time of his injury, the \nClaimant  agreed  that  he  was  performing  the  type  of  work  that  he  normally  performed  for  Mr. \n\nSanchez- H205569 \n \n6 \n \nMorales.  Following his accidental fall, the Claimant was transported by ambulance to UAMS.  He \nwas treated at the emergency room there and discharged home. The Claimant confirmed that he \nhad a follow-up visit to determine his progress following the accident. He confirmed that he was \ngiven a neck brace after his follow-up visit.   \n The Claimant testified that his doctor told him would not be able to return to the same type \nof work he was doing because his job required quite a bit of strength and he could not do it.  He \nconfirmed  that  he  had  an  appointment  with  a  Dr.  Aaron  Don  Roberts  in  Jacksonville.    Per  the \nClaimant, Dr. Roberts also instructed him not to return to work.  The  Claimant testified that he \nwas referred to a specialist.  He denied any prior problems to prevent him from working before his \naccident.   \n On cross-examination, the Claimant confirmed that there were there other people on the \nscaffolding  when  his  accident  occurred.    He  admitted  that  he  was  the  only  one  person  that  an \nambulance was called for that day.  The Claimant testified that he injured his head, neck, shoulder, \nback and hip.   \n He  denied  ever  being  injured  before.    The  Claimant  confirmed  that  he  worked  at  Oaks \nBrothers for over ten (10) years before his accident.  He also worked in construction for some time \nprior to going to work for Oaks brothers.  The Claimant admitted that he fought off robbers in rural \nLouisiana.  He denied being injured.   \nUnder further questioning, the Claimant admitted that he underwent several x-rays, and CT \nscans of various parts of body at UAMS after his work-related accident.  He denied being told that \nthe  x-rays  performed  on  March  29,  2022  at  UAMS  were  negative  for  left  swelling,  and  had  no \npalpable changes to the spine.  In fact, x-rays of his ankle was unremarkable.  The Claimant also \ndenied that he was aware of his chest x-rays showing no rib fractures or abnormalities.  He further \n\nSanchez- H205569 \n \n7 \n \ndenied that the CT scan performed on March 29 of the head demonstrated no acute posttraumatic \nintracranial findings.   The Claimant was not aware that the cervical scan showed disc height loss \nat C3-4 and C5-C6 and a disc bulge at C3-4.  However, the Claimant explained that he had those \nfrom the accident because he fell seventeen (17) feet up in the air onto cement.  The Claimant also \ndenied he was aware of all of his scans to his lungs, liver, spleen, bladder, esophagus, heart and \nkidneys were all normal.  However, the Claimant was noted to have severe degenerative changes \nto his right sternoclavicular joint.  The Claimant denied a prior right shoulder injury. \nThe Claimant admitted that he went to the Jacksonville Medical Center in September 2022.  \nHe  denied  that  all  of  the  findings  on  the  diagnostic  tests  were  chronic  changes.  The  Claimant \ndenied that he had an accident before his work incident.   He testified that he does plastering, a day \nor two for his uncle, Martin Reyes.  The Claimant admitted that his uncle does not pay taxes.  He \ncould not remember the last time he paid taxes. Nor does the Claimant have a bank account.  The \nClaimant denied that he works for Martin Reyes.  However, he admitted that he previously worked \nfor him. He denied that he lives with him.  Instead, the Claimant, his wife and two children live in \na  storage  area  outside  of  his  house.    The  Claimant  testified  that  Reyes  sometimes  gives  him \n$100.00 or $200.00 to help him out since his accident. He admitted that he cleans the yard since \nhis lives there.  The Claimant admitted that he previously worked for Mr. Reyes before he worked \nfor Victor Morales.  He denied going back to work for him since his accident.  \nThe  Claimant  was  shown  video  from  a  screenshot  of  a  Facebook  video  posted  by  Jorge \nAldaco to Mr. Martin Reyes’s Facebook profile.  It is a scene of a pool installation by Mr. Martin \nReyes’s’ company.  The Claimant admitted that he was aware that Mr. Reyes installed and finished \nresidential  pools.    In  this  video  is  a  man  in  a  yellow  shirt  appearing  to  put  on  equipment.  The \n\nSanchez- H205569 \n \n8 \n \nClaimant denied that he is the man pictured in the video. He testified that the man in the video is \nhis cousin, Juan Razo.                                  \n              He denied work for Mr. Reyes.  The Claimant admitted that he delivered some water hose \nto a construction for him.  He denied he helped to carry the hose to the jobsite. According to the \nClaimant he drove the truck to the jobsite and someone else got the hoses out of the truck.  This \noccurred around June 20, 2020.   He denied working for Mr. Reyes for two weeks. He maintained \nthat Mr. Reyes will give him money to help him out, such as $100.00. \n The Claimant testified on recross examination, he has not seen a specialist because he does \nnot have the resources. \n He    testified  that  he  worked  for  Mr.  Morales  and  three  other  guys.    The  Claimant  also  \ntestified  that  Mr.  Morales  determined  their  course  and  sequence  of  work.    They  did  not  have  a  \nwritten contract.          \n It appears that Eli Conjocaru owns Creative Walls Systems.  However, Mr. Conjocaru does \nuse Mr. Victor Morales as a subcontractor.  (TR 63) \nMartine Reyes              \n Mr.  Reyes  was  called  as  witness  on  behalf  of  the  Claimant.    He  was  shown  screenshots \nfrom the video of record.  These two photos have been marked as Claimant’s Exhibit 3.  Mr. Reyes \ntestified the person depicted in the photo is not the Claimant.  Instead, he testified that the person \nin the photo is the Claimant’s cousin, Juan Razo.   \n On  cross-examination  Mr.  Reyes  testified  that  the  Claimant  and  his  family  lives  in  his \nwarehouse on his property.  He confirmed that the Claimant delivered a water hose to one of his \nworksites for him.  However, Mr. Reyes testified that it was simply a garden hose. \n\nSanchez- H205569 \n \n9 \n \n Under redirect-examination Mr. Reyes testified that the hose was already in the bed of the \ntruck and asked the Claimant to drive his truck to the jobsite.   \n On inquiry by the Commission, Mr. Reyes testified that he has known the Claimant for ten \n(10)years.  He confirmed that the Claimant is a good hard worker, and he has previously worked \nfor him.  Mr. Reyes testified that  when the Claimant was working he gave him money for bills.  \nHe  denied that prior to the Claimant’s accident  he had been ill and/or unable to work.  Mr. Reyes \ndenied that the Claimant had any prior problems with his neck or back.            \n  \n                                                       Adjudication \nA. Subcontractor/Employee  \nThe evidence shows that the Claimant worked as an employee for Mr. Victor Morales by \nhaving  met a  majority  of  the  requirements  of    20-prong  test  sufficient  for  establishing  the \nemployee-employer  relationship  based  on  the  Claimant  testimony  which  is  uncontroverted.  \nDuring the hearing it was also established that  Mr. Morales did not have workers’ compensation \ncoverage at the time of the hearing.  The Respondents’ attorney confirmed that the Mr. Morales \nworked  as  a  subcontractor  for  the  owner  of  Creative  Wall  System,  who  is  Mr.  Eli  Conjocura.  \nTherefore,  based  on  the  foregoing,  I  find  that  Mr.  Eli  Conjocura  is  a  liable  prime  contractor \npursuant to Ark. Code Ann. §11-9-402.      \nB. Average Weekly Wage \nThe Claimant contends that he is entitled to an average weekly wage of $720.00.  In that \nregard, the only evidence presented concerning the Claimant’s average weekly was provided by \nthe Claimant’s hearing and deposition testimony.  The Claimant testified during the hearing that \nhe worked forty-five (45) to fifty (50) hours per week.  He testified that his hourly rate of pay was \n$18.00  The  Claimant  testified  he  was  paid  in  cash.    No  testimony  or  documentary  evidence \n\nSanchez- H205569 \n \n10 \n \nwhatsoever to the contrary has been presented concerning the Claimant’s average weekly wage by \nthe Respondents.  With that in mind, I find that the evidence preponderates that the Claimant’s \naverage weekly at the time of his March 2022 injury was $720.00.  Considering that the Claimant \nwas restricted from working due to the weather, a calculation of only 40 hours per week is fair.       \nC. Compensability for Neck and Back Conditions \nThe Claimant contends that he sustained injuries to his neck and back on March 29, 2022, \nwhen he fell from scaffolding of approximately seventeen (17) feet.  \nIn that regard, for the Claimant to establish a compensable injury as a result of a specific \nincident, the following requirements of Ark. Code Ann. §11-9-102(4)(A)(i) (Repl. 2012), must be \nestablished:  (1)  proof  by  a  preponderance  of  the  evidence  of  an  injury  arising  out  of  and  in  the \ncourse of employment; (2) proof by a preponderance of the evidence that the injury caused internal \nor external physical harm to the body which required medical services or resulted in disability or \ndeath; (3) medical evidence supported by objective findings, as defined in Ark. Code Ann. §11-9-\n102 (4)(D), establishing the injury; and (4) proof by a preponderance of the evidence that the injury \nwas caused by a specific incident and is identifiable by time  and place of occurrence.   Mikel v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).   \nA  compensable  injury  must  be  established  by  medical  evidence  supported  by  objective \nfindings.  Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012). “Objective findings” are those findings \nthat  cannot  come  under  the  voluntary  control  of  the  patient.   Id.  §  11-9-102(16).  The  element \n“arising out of . . . [the] employment” relates to the causal connection between the Claimant’s \ninjury and his or her employment.  City of El Dorado v. Sartor, 21 Ark. App. 143, 729 S.W.2d 430 \n(1987).  An injury arises out of a Claimant’s employment “when a causal connection between \nwork conditions and the injury is apparent to the rational mind.” Id. \n\nSanchez- H205569 \n \n11 \n \nIf  the  Claimant  does  not  establish  by  a  preponderance  of  the  evidence  any  of  the \nrequirements for establishing compensability, compensation must be denied.  Mikel v. Engineered \nSpecialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n      Here,  the  Claimant  fell  seventeen  (17)  feet  from  scaffolding  while  working  for  the \nrespondent-employer.  Immediately following his fall, he was transported by ambulance to UAMS.  \nHe underwent multiple diagnostics at the Emergency Department at UAMS.  A CT of the cervical \nspine  demonstrated  in relevant  part,  “Acquired  canal  stenosis  at  C3-4.  Severe  right  neural \nforaminal narrowing at  C4-5 and moderate  foraminal narrowing at C5-6 levels”.  The Claimant \ndenied any prior problems or injuries to his neck.  His testimony is corroborated by the lack of any \ndocumentary  medical  evidence  to  the  contrary  and  Mr.  Reyes  denied  that  the  claimant  had  any \nprior  problems  with  his  neck.    I  find  that  the  abnormalities  demonstrated  on  the  CT  constitute  \nmedical evidence supported by objective findings sufficient to establish a work-related injury to \nthe Claimant’s neck.  Moreover, I find that the Claimant established  by a  preponderance  of  the \nevidence all of the requirements for establishing a compensable neck injury. \nThe Claimant has also alleged an injury to his back.  He has failed to establish an injury to his \nback by medical evidence supported by objective findings.  These finding were identified by Dr. \nRoberts in the form of lumbar paraspinal muscle tenderness and limit flexion.  These findings are \ninsufficient to establish a compensable injury.                      \nD. Temporary Total Disability \nAn  injured  employee  for  an  unscheduled  injury  is  entitled  to  temporary  total  disability \ncompensation during the time that he is within his healing period and totally incapacitated to earn \n\nSanchez- H205569 \n \n12 \n \nwages.  Arkansas State Highway and Transportation Department v. Breshears, 272 Ark. 244, 613 \nS.W.2d 392 (1981).  The healing period is that period for healing of the injury which continues \nuntil the employee is as far restored as the permanent character of the injury will permit.  Nix v. \nWilson  World  Hotel,  46  Ark.  App.  303,  879  S.W.2d  457  (1994).    If  the  underlying  condition \ncausing the disability has become stable and nothing further in the way of treatment will improve \nthat  condition,  the  healing  period  has  ended. Id.    Temporary  total  disability  cannot  be  awarded \nafter the Claimant’s healing period has ended.  Trader v. Single Source Transportation, Workers’ \nCompensation Commission E507484 (February 12, 1999). \n Here, the Claimant suffered a compensable injury to his neck when he fell from scaffolding \nto the ground, which was cemented.   The Claimant was transported to a local hospital, namely \nUAMS, following his fall.  He was treated in the  Emergency Department  and discharged home \nwith instructions to receive follow-up care.  The Claimant testified he was instructed not to return \nto work.  No testimony to the contrary has been presented.    \nAfter having observed the Claimant’s demeanor during the hearing and when comparing \nhis  testimony  with  the  medical  evidence  and  other  documentary  evidence,  I  found  him  to  be  a \ncredible witness, particularly regarding his inability to work since his compensable fall of March \n29,  2020.    The  Claimant  also  testified  that  Dr.  Roberts  took  him  off  work.  His  testimony  is \ncorroborated by Dr. Roberts’ clinic note dated September 8, 2022.  Since this time, the Claimant \nhas not been released by a doctor to return to work.  Moreover, Dr. Robert recommended that the \nClaimant see an orthopedic specialist.   \n     Under these circumstances, I find that the Claimant proved he remained  within a healing \nperiod and was totally incapacitated to earn wages beginning March 29, 2022 and continuing until \nhe is directed to work to by  a doctor or treating medical professional.   As such, I further find that  \n\nSanchez- H205569 \n \n13 \n \nbased  on  all  of  the  foregoing  evidence,  the  Claimant  proved  his  entitled  to  temporary  total \ndisability from March 29, 2022, until a date yet to be determined.    \nE. Medical Benefits \nThe employer shall promptly provide for an injured employee such medical treatment as \nmay be reasonably necessary in connection with the injury received by the employee.  Ark. Code \nAnn. §11-9-508(a) (Repl. 2012).   The Claimant has the burden of proving by a preponderance \nof  the  evidence  that  medical  treatment  is  reasonably  necessary  in  connection  with  the  injury \nreceived by the employee.  Stone v. Dollar General Stores, 91 Ark. App. 260, 209 S.W.3d 445 \n(2002).    Our  courts  have  quantified  the  preponderance  of  the  evidence  to  mean  the  evidence \nhaving greater weight or convincing force.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. \nApp. 269, 101 S.W.3d 252 (2003).   \nIn  the  present  claim,  the  treatment  of  record  was  done  for  the  purpose  of  treating, \nevaluating, and diagnosing the Claimant’s injuries following his compensable work-related fall \nof  March  2022.    The  Claimant  was  evaluated  by  Dr.  Roberts  on  September  8,  2022,  due  to \nongoing problems and pain related to his neck injury. He also recommended that the Claimant \nsee an orthopedic specialist.   \nTherefore, I find that the Claimant proved by a preponderance of the evidence that all of \nthe treatment of record was reasonable and necessary to treat the neck injury that he sustained \nduring his work-related fall.  He also proved his entitled to additional medical treatment based \non the recommendation of Dr. Roberts that he see an orthopedic specialist. \n \n \n\nSanchez- H205569 \n \n14 \n \n    \nF. Controverted Attorney’s Fee   \nIt is undisputed that the Respondents have controverted this claim in its entirety as stipulated \nto by the parties.  Therefore, pursuant to Ark. Code Ann. §11-9-715 (Repl. 2012), the Claimant’s \nattorney is entitled to a controverted attorney’s fee on all indemnity benefits awarded herein. \nAWARD \nThe Respondents are directed to pay benefits in accordance with the findings of fact set \nforth herein this Opinion.  \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809 (Repl. 2012).   See \nCouch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W. 2d 57 (1995).  \nPursuant to Ark. Code Ann. §11-9-715 (Repl. 2012), the Claimant's attorney is entitled to \na 25% attorney's fee on the indemnity benefits awarded herein.  This fee is to be paid one-half by \nthe carrier and one-half by the Claimant.  \nAll  issues  not  addressed  herein  are  expressly  reserved  under  the  Arkansas  Workers’ \nCompensation Act. \n      IT IS SO ORDERED. \n \n \n        ______________________________ \n        CHANDRA L. BLACK \n               ADMINISTRATIVE LAW JUDGE","textLength":26169,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H205569 JUAN CARLOS SANCHEZ, EMPLOYEE CLAIMANT CREATIVE WALL SYSTEMS, EMPLOYER RESPONDENT BRIDGEFIELD CASUALTY INSURANCE COMPANY/ SUMMIT COUNSULTING, LLC, CARRIER/THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT OPINION FILED MARCH 14, 2023 Hearing held before AD...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["back","neck","shoulder","hip","ankle","cervical","lumbar"],"fetchedAt":"2026-05-19T23:09:25.884Z"},{"id":"alj-H206753-2023-03-13","awccNumber":"H206753","decisionDate":"2023-03-13","decisionYear":2023,"opinionType":"alj","claimantName":"Daniela Grana","employerName":"Rockline Industries, Inc","title":"GRANA VS. ROCKLINE INDUSTRIES, INC. AWCC# H206753 MARCH 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GRANA_DANIELA_H206753_20230313.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRANA_DANIELA_H206753_20230313.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H206753 \n \nDANIELA GRANA, Employee                                                                         CLAIMANT \n \nROCKLINE INDUSTRIES, INC., Employer                                              RESPONDENT                          \n \nCNA INSURANCE COMPANY, Carrier                                                    RESPONDENT                        \n \n \n OPINION FILED MARCH 13, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  February  15,  2023,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on November 2, 2022 \nand a pre-hearing order was filed on that same date.  A copy of the pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The employee/employer/carrier relationship existed among the parties on April \n6, 2022. \n At the time of the hearing the parties  agreed to stipulate that claimant earned an \naverage weekly wage of $529.94 which would entitle her to compensation at the weekly \n\nGrana – H206753 \n \n2 \n \nrates of $353.00 for total disability benefits and $265.00 for permanent partial disability \nbenefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of bilateral injuries to hands and wrists. \n2.     Medical. \n3.     Temporary total disability benefits from May 26, 2022 through a date yet to  \nbe determined. \n4.      Attorney fee. \nAt  the time of the hearing the claimant clarified that she is  requesting temporary  \ntotal  disability  benefits  from  May  26,  2022  through  the  date  she  returned to  work  for \nrespondent. \n The claimant contends she sustained a compensable injury to her bilateral hands \nand  wrists.    She  contends  she  is  entitled  to  medical  treatment  and  temporary  total \ndisability  benefits  from  May  26,  2022  through  the  date  she  returned  to  work.  Claimant \nreserves all other issues. \n The respondents contend that the claimant did not sustain a compensable injury.  \nAfter  seeking  treatment  for  bilateral  wrist  pain  and  undergoing  conservative  treatment, \nDr. Berestnev opined in his May 27, 2022 report that the claimant has elevated ESR and \nanti-ANA  titer  suggestive  of  Lupus  and  that  her  current  wrist  complaints  are  not  work \nrelated but the result of her underlying pre-existing condition. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \n\nGrana – H206753 \n \n3 \n \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non November  2,  2022  and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.    Claimant has failed to meet her burden of proving by a preponderance of the \nevidence that she suffered a compensable injury to her bilateral hands and wrists. \n \n FACTUAL BACKGROUND \n Claimant is a 27-year-old woman who began working for respondent in 2019 as \nan auxiliary machine operator.  Claimant testified that her job required her to rotate her \njob activities every 30 minutes.  She described those various activities as follows: \n  Q And you have been instructed if someone’s not - - \n  if you need to move and there is no one else to come and \n  get you, you have been instructed you are not supposed to \n  work more than 30 minutes doing this job; right? \n \n  A Right. \n \n  Q So part of the job you said - - are these baby wipes? \n \n  A Facial. \n \n  Q Facial wipes? \n \n  A Facial wipes. \n \n  Q Okay.  And they come down in little five by five \n  packets individually and they come down.  You get two \n  of them.  Then you have to move them over to another \n  line to get labeled. \n \n  A Yes. \n\nGrana – H206753 \n \n4 \n \n \n  Q And you do that for 30 minutes; right? \n \n  A Yes. \n \n  Q And then you move on to the next place where \n  you take the facial wipe packets and you put them in a \n  box; right? \n \n  A Right. \n \n  Q And that is more shoulder movement; isn’t it? \n \n  A That is the shoulder, but before you get to the \n  shoulder part, you have to set two of them side by side \n  and the next person grabs them and flips both of the \n  packages together.  And then the third person basically \n  like - - I want to say fixes them so they won’t fall off the \n  line and then  you go put them in the box. \n \n  Q Okay.  So there is three people that are handling \n  the packs; right? \n \n  A Yes. \n \n  Q And you only can do that, what you are doing, for \n  30 minutes at a time; right? \n \n  A Right. \n \n  Q And the only job that you are indicating that you \n  are really - - you are putting them together, so that seems \n  like arm movement; right?  A full arm movement and not  \n  a wrist movement? \n \n  A It would be a wrist movement because you have to \n  set them together. \n \n  Q Okay.  So you are setting them together? \n \n  A Because it comes flat out and you have to set them \n  up straight. \n \n  Q Then someone else has to take them and turn them \n  over? \n\nGrana – H206753 \n \n5 \n \n \n  A Right. \n \n  Q Again, only 30 minutes; correct? \n \n  A Correct. \n \n  Q And then someone else moves them into the box? \n \n  A Correct. \n \n  Q That is arm movement; right? \n \n  A  Right. \n \n  Q And then you have to palletize them? \n \n  A Right. \n \n  Q And once they are in the box, you have to get them \n  to the pallet? \n \nA Right.  Yes. \n \n \n Claimant  also  testified  that  if  the  machine  gets  jammed  they  must  open  the \nmachine and remove the jam to get the machine working again.  Claimant testified that \nbeginning in April 2022 she developed pain, numbness, and loss of strength in her wrist.  \nShe stated that she reported these symptoms to her supervisor but he dismissed them. \n Medical records indicate that on April 11, 2022 claimant sought medical treatment \nat respondent’s first aid station where she was treated with ice.  The records indicate that \nclaimant  received  treatment  in  the  form  of  ice  on  several  occasions  from  the  first  aid \nstation.  According to claimant’s testimony, the first medical treatment she received for \nher wrist was from a chiropractor who “popped” her wrists.  Those medical records were \nnot submitted into evidence. \n\nGrana – H206753 \n \n6 \n \n When  claimant’s  complaints  continued,  respondent  referred  claimant  to  Dr. \nBerestnev for an evaluation.  His initial evaluation was on April 20, 2022, at which time \nhe noted that claimant had been having pain in her right wrist since April 6, but did not \nreport it until April 11 and that she had been seeing a chiropractor for those complaints.  \nHe noted that claimant attributed her complaints to turning over packages and gradually \ndeveloping pain in her right wrist.   Dr. Berestnev diagnosed claimant’s condition as right \nwrist extensor tendinitis; repetitive use disorder.  He recommended that claimant’s work \nplace  be  modified  and  prescribed  a  lace-up  wrist  support.    He  also  indicated  that  her \nproblems appeared to be related to her work activities.   \n Claimant  returned  to  Dr.  Berestnev  on  April  27,  at  which  time  he  noted  that \nclaimant’s right wrist was about the same and that her left wrist was starting to hurt due \nto overcompensating.  He referred claimant to physical therapy and she apparently had \nsix sessions of physical therapy before returning to Dr. Berestnev on May 18.  At that visit \nDr. Berestnev noted that claimant had signs of medial neuropathy and ordered an NCV \nand CT panel.  \n Claimant’s last visit with Dr. Berestnev occurred on May 18, 2022.  At that time he \nindicated that claimant’s lab work showed elevated ESR and anti-ANA titer suggestive of \nlupus.    Dr.  Berestnev  stated  that  claimant  should  see  her  primary  care  physician  and \nindicated that the cause of claimant’s complaints did not appear to be related to her work \nactivities. \n On May 31, claimant was seen by Rachel Hudman, APN, who noted:  “She reports \nhistory of bilateral wrist pain for the past 1 year.”   Hudman diagnosed claimant with \nbilateral wrist pain; gave her trial steroid for pain; and took her off work until claimant could \n\nGrana – H206753 \n \n7 \n \nbe seen by her primary care physician.  Hudman also referred claimant to rheumatology \nfor a further evaluation. \n On  June  13,  2022,  claimant  was  evaluated  by  her  primary  care  physician,  Dr. \nHurtado.  He noted that claimant’s anti-nuclear  factor  was  positive,  but  that  she  had  a \nnegative  CRP  and  CCP.    He  also  noted  that  claimant  had  a  pending  rheumatology \nappointment.  With regard to her bilateral wrists, Dr. Hurtado referred claimant for a nerve \nconduction study/EMG. \n Claimant underwent NCV/EMG testing from Dr. Miles Johnson on June 23, 2022, \nwhich   he   interpreted   as   showing   mild   bilateral   carpal   tunnel   syndrome   with   no \nelectrodiagnostic   evidence   of   radiculopathy,   plexopathy,   generalized   peripheral \nneuropathy  or  other  peripheral  nerve  entrapment  syndromes.    Following  this  testing, \nclaimant  returned  to  Dr.  Hurtado  on  June  24,  who  referred  her  to  Dr.  Mark  Allard, \northopedic surgeon, for treatment. \n Claimant was evaluated by Dr. Allard on July 7, 2022, and he diagnosed claimant \nwith bilateral carpal tunnel syndrome, prescribed therapy, and the use of a splint.  When \nclaimant’s condition did not improve he gave her an injection in the wrist on August 11 \nand on August 24, 2022 performed a right hand carpal tunnel release procedure. \n Prior to the surgery by Dr. Allard,  claimant was evaluated by Dr. Song who in a \nreport  dated  August  16,  2022  assessed  her  as  ANA  positive  but  noted  that  she  was \nclinically not typical for lupus. \n Following her surgery, claimant was released to return to work by Dr. Allard without \nrestrictions on September 21, 2022.  Claimant did return to work for respondent and had \nincreased pain.  Thereafter, Dr. Allard ordered twelve visits of occupational therapy before \n\nGrana – H206753 \n \n8 \n \nreleasing claimant with no restrictions as of November 17, 2022. \n Claimant has filed this claim contending that she suffered a compensable injury to \nher  bilateral  hands  and  wrists  as  a  result  of  her  employment  with  respondent.    She \nrequests   payment   of   medical   benefits,   temporary   total   disability   benefits,   and   a \ncontroverted attorney fee. \n \nADJUDICATION \n Claimant  contends  that  she  has  suffered  a  compensable  injury  to  her  bilateral \nhands and wrists in the form of carpal tunnel syndrome.   In Kildow v.  Baldwin Piano & \nOrgan, 333 Ark. 335, 969 S.W. 2d 190 (1998), the Supreme Court recognized that carpal \ntunnel syndrome constitutes a gradual onset injury.  Therefore, claimant is not required \nto prove that her injury was caused by rapid repetitive motion.  However, claimant must \nstill prove (1) that her bilateral carpal tunnel syndrome arose out of and in the course of \nher employment; (2) her injury caused internal or external physical harm to her body that \nrequired medical services or resulted in disability; and (3) the injury was the major cause \nof  the  disability  or  need  for  treatment.    A.C.A.  §11-9-102(4)(A)(ii)(E)(ii).   In  addition, \nclaimant  must  offer  medical  evidence  supported  by  objective  findings  establishing her \ninjury.  A.C.A. §11-9-102(4)(D).   \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet her burden of proving by \na preponderance of the evidence that her bilateral carpal tunnel syndrome arose  out of \nand in the course of her employment with the respondent. \n There is no question that in April 2022 claimant reported complaints of right hand \n\nGrana – H206753 \n \n9 \n \nand wrist pain to the respondent and that she sought medical treatment at the first aid \nstation.    In  addition,  claimant  was  seen  by  Dr.  Berestnev  who  initially  indicated  that \nclaimant’s symptoms were related to her employment activities before indicating that her \nsymptoms  were  not  related  to  her  work  activities  following  additional  testing.    Notably, \nRachel Hudman, APN, indicated that claimant had a history of bilateral wrist pain “for the \npast 1 year.”  Finally, Dr. Allard in his initial report of July 7, 2022 indicated: \n  26-year-old right-hand-dominant young lady works at \n  a repetitive manufacturing job comes in with a three- \n  month history of bilateral radial hand numbness and \n  pain. \n \n \n All of the foregoing evidence would indicate that claimant suffered a compensable \ninjury as a result of her job activities with respondent.  However, the reality is that at the \nsame time claimant was working at respondent she was also working for other employers.  \nAt the time her complaints began she was not only working for another employer but had \nalso started a business of her own as well. \n Claimant began working for respondent in 2019 as an auxiliary machine operator \nand she has performed this job since that time.  Claimant testified that for respondent she \nworked three days one week and then four the next.  Her shift was for 12 hours with three \nbreaks.  Claimant’s job required her to rotate among various job activities as an auxiliary \nmachine operator every  30  minutes.    Claimant  performed  that  job  for  the  remainder  of \n2019; 2020; 2021; and the first three months of 2022 without any carpal tunnel symptoms.  \nHer problems did not begin until April 2022. \n At the same time claimant was working for respondent she was also performing \nwork for other employers which required the use of her hands.  These jobs included office \n\nGrana – H206753 \n \n10 \n \nwork at Lindsey Management; C & W Properties; and Staffmark.  In the performance of \nthis office work she operated a computer and performed 10-key input.  In addition, she \nalso  worked  for  Tyson  as  a  machine  operator  and  at  Walmart  Optical  monitoring \nmachinery.   \n Notably,  in  December  2021,  just  five  months  before  April  2022,  claimant  began \nworking for Famous Footwear as a manager.  Claimant testified that as a manager she \nwas  responsible  for  running  the  cash  register,  operating  a  computer,  counting  money, \nand monitoring other employees.  Claimant performed this work for 20 hours per week \nand was performing this work in April 2022 at the same time her hand complaints began.  \nClaimant continued performing this work at Famous Footwear until May 2022, after she \nsought medical treatment for her hand and wrist complaints.   \n In  addition  to  her  jobs  at  respondent  and  as  a  manager  for  Famous  Footwear, \nclaimant also started her own business, MB Creations.  MB Creations was crafting type \nwork  in  which  claimant  would  personalize  items  such  as  t-shirts  and  cups.    Claimant \nbegan this business in early 2022, shortly before her complaints began.  Claimant testified \nthat she would spend one to two hours per week performing this work.   \n Thus,  while  claimant  did  have  a  job  at  respondent  that  required  the  use of  her \nhands, she had been performing that job for more than two years without any complaints \nof hand or wrist pain.  When her complaints began she was also performing work involving \nthe use of her hands as a manager at Famous Footwear (beginning in December 2021) \nand in her own crafting business (beginning in early 2022).  Given this evidence, I do not \nfind that claimant has met her burden of proving by a preponderance of the evidence that \nher  carpal  tunnel  syndrome  arose  out  of  and  in  the  course  of  her  employment  with \n\nGrana – H206753 \n \n11 \n \nrespondent  as  opposed  to  her  employment  at  Famous  Footwear  or  the  work  she  was \nperforming for her own business, MB Creations.  To the extent that her treating physicians \nrelate her carpal tunnel complaints to her job activities with respondent, I note that there \nis no indication that any of those physicians were aware of the other jobs claimant was \nalso performing involving the use of her hands while she was working for respondent. \n In  summary,  claimant  has  the  burden  of  proving  by  a  preponderance  of  the \nevidence that her bilateral carpal tunnel syndrome arose out of and in the course of her \nemployment with respondent.  While claimant’s job with the respondent did require the \nuse of her hands, at the same time claimant was working for the respondent she was also \nemployed  by  other  employers  performing  jobs  which  required  the  use  of her  hands.  \nClaimant performed her work for respondent for more than two years without any carpal \ntunnel complaints.  When claimant’s problems began in April 2022 she was also working \n20  hours  per  week  as  the  manager  of  Famous  Footwear  and  was  performing  crafting \nwork for her own business which she had begun in early 2022.  For these reasons, I find \nthat claimant has failed to meet her burden of proving by a preponderance of the evidence \nthat her bilateral carpal tunnel syndrome arose out of and in the course of her employment \nwith respondent. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that she suffered \na compensable injury in the form of bilateral carpal tunnel syndrome while employed by \nrespondent.    Therefore,  her  claim  for  compensation  benefits  is  hereby  denied  and \ndismissed. \n\nGrana – H206753 \n \n12 \n \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $579.95. \n IT IS SO ORDERED. \n \n     _______________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","textLength":18561,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206753 DANIELA GRANA, Employee CLAIMANT ROCKLINE INDUSTRIES, INC., Employer RESPONDENT CNA INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED MARCH 13, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkan...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["wrist","shoulder","repetitive","carpal tunnel"],"fetchedAt":"2026-05-19T23:09:21.636Z"},{"id":"alj-H008571-2023-03-13","awccNumber":"H008571","decisionDate":"2023-03-13","decisionYear":2023,"opinionType":"alj","claimantName":"Mary Mckamie","employerName":"Arkansas Department Of Human Services","title":"MCKAMIE VS. ARKANSAS DEPARTMENT OF HUMAN SERVICES AWCC# H008571 MARCH 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/MCKAMIE_MARY_H008571_20230313.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MCKAMIE_MARY_H008571_20230313.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                                         CLAIM NO.: H008571 \nMARY MCKAMIE, EMPLOYEE                                                                          CLAIMANT \n \nARKANSAS DEPARTMENT OF HUMAN SERVICES, \nEMPLOYER                                                                                                        RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,  \nCARRIER/THIRD PARTY ADMINSTRATOR (TPA)                                 RESPONDENT \n \n \n         OPINION FILED MARCH 13, 2023     \n        \nHearing held before ADMINISTRATIVE LAW J UDGE CHANDRA L. BLACK in Texarkana, \nMiller County, Arkansas. \n \nClaimant represented by Mr. Gregory R. Giles, Attorney at Law, Texarkana, Arkansas. \n \nRespondents represented by Mr. Robert H. Montgomery, Attorney at Law, Little Rock, Arkansas. \n \n \nStatement of the Case \nOn December 13, 2022,  the above-captioned claim came on for  a hearing in Texarkana, \nArkansas.  A pre-hearing telephone conference was conducted on September 14, 2022, from which \na Pre-hearing Order was filed on that same day.  A copy of said order and the parties’ responsive \nfilings have been marked as Commission’s Exhibit No. 1 and made a part of the record without \nobjection. \nStipulations \nDuring the pre-hearing telephone conference, and/or during the hearing the parties agreed \nto the following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the within \nclaim. \n \n\nMcKamie- H008571 \n \n2 \n \n2. That  the  employee-employer-carrier  relationship  existed  at  all  relevant  times \nincluding on or about October 27, 2020, when the Claimant sustained compensable \ninjuries to her lower left extremity, lower left hip, and lower back. \n3. That  the  Claimant's  average  weekly  wage  (AWW)  on  the  date  of  her  accidental \ninjury was $548.07, with corresponding compensation rates of $365.00 per week \nfor  temporary  total  disability  (TTD)  compensation,  and  $274.00  a  week  for \npermanent partial disability (PPD) benefits. \n4. That  Respondents  accepted  these  injuries as  being  compensable  and  have  paid \nappropriate medical benefits owed on this claim to date. \n5. The Claimant was found to be at maximum medical improvement (MMI) for her \nhip  injury  on  May  14,  2021,  and  at  MMI  for  her  back  injury  on  December  16, \n2021.  Respondents paid the Claimant TTD compensation until January 23, 2022.  \nTherefore, Respondents are owed an overpayment of  $625.71.    \n6. The  Claimant  was  assigned  a  10%  whole  body  impairment  rating  for  her  back \ninjury  by  Dr.  Calhoun.    The  Respondents  have  paid  the  Claimant  PPD  benefits  \nowed  for  this  rating.    The  Claimant  was  also  assigned  an  8%  rating  for  her  hip \ninjury for a combined rating of 17%.  The Respondents have accepted this rating.  \nThe Claimant is being paid by APERS $217.17 in monthly benefits.  In the event, \nthe Claimant is awarded benefits herein, Respondents are entitled to an offset for \npayment of these benefits.  \n7. That Respondents have controverted this claim for additional benefits.  \n\nMcKamie- H008571 \n \n3 \n \n8. All  issues  not  litigated  herein  are  reserved  under  the  Arkansas  Workers’ \nCompensation Act. \nIssues \nBy agreement of the parties, the issues to be litigated at the hearing included the following: \n1. Whether the Claimant is entitled to TTD from May 1, 2021 until October 17, 2021.  \n2. Whether the Claimant is entitled to wage loss disability for the combined rating of \n17%.  (Of note, the Claimant’s attorney specifically reserved permanent and total \ndisability benefits).  \n3. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \nContentions \n The respective contentions of the parties are as follows: \nClaimant:  \na. Claimant  contends  that  she  took  retirement  effective  May  1,  2021.    Claimant \ncontends  that  she  was  not  able  to  continue  to  perform  her  work  duties  at  that  time.    Claimant \ncontinued to have chronic hip and back pain.  It was not discovered that she had a compensable \nherniated disc that was the source of these continuing symptoms until the MRI was performed on \nAugust 25, 2021.  Claimant contends that there is an issue of whether she is entitled to temporary \ntotal  disability  benefits  from  May  1,  2021  until  October  17,  2021  when  TTD  was  reinstated.  \nClaimant  contends  that  given  the  severity  of  the  herniated  disc  subsequently  discovered  and \nidentified  which  required  surgery  that  it  is  clear  she  had  good  faith  basis  for  being  unable  to \nperform her job duties and it would be appropriate for her to have received TTD during that time \nframe. \n b. Claimant contends that she is entitled to wage loss disability benefits in excess of \n\nMcKamie- H008571 \n \n4 \n \nthe  impairment  ratings.  Claimant  contends  that  she  has  not  been  able  to  return  to  work  and \ncontends that she is entitled to substantial wage loss benefits.  Claimant would contend she has \nlost approximately ten additional years of her working life and given the circumstances contends \nthat she is now totally and permanently disabled or in the alternative entitled to wage loss disability \nbenefits exceeding 85%. \n c. Claimant contends that the medical treatment that she had that her health insurance \nHealth Advantage paid for was reasonable and necessary such that Respondents should be ordered \nto satisfy the subrogation reimbursement request of Health Advantage. \n d. Claimant contends that Respondents should be ordered to pay attorney’s fees as \nprovided by law. \nRespondents: \n Respondents contend that the Claimant has received all reasonable and necessary medical \ntreatment for her compensable injury(ies).  The Claimant is currently receiving permanent partial \ndisability benefits in payment of the 10% impairment rating assigned by Dr. Calhoun for her back \ninjury. \nThe Claimant reached MMI for her lumbar injury on January 5, 2022,  and yet was paid \nTTD benefits through January 23, 2022.  The Respondents would contend that the Claimant was \noverpaid TTD benefits in the amount of $573.56 and that they are entitled to a credit in that amount \nagainst any PPD benefits owed to the Claimant.  \nThe  Claimant  elected  to  retire  from  the  Arkansas  Department  of  Human  Services.    The \nClaimant  is  61  years  old  and  now  contends  she  is  entitled  to  wage-loss  disability  benefits. \nRespondents contend that had she not retired the Claimant could and would still be working today, \n\nMcKamie- H008571 \n \n5 \n \nhad  she  chosen  to  do  so.    Based  on  these  facts  the  Claimant  is  not  entitled  to  any  additional \nindemnity  benefits  beyond  those  owed  for  the  impairment  ratings  assigned.    Since  her  recent \nretirement the Claimant has not sought employment nor has she requested any type of vocational \nrehabilitation assistance  in order to assist her in finding another job.   Respondents will contend \nthat  should  the  Claimant  begin  receiving  disability  retirement  benefits  as  a  result  of  her \nemployment with Respondents they would be entitled to a credit pursuant to A.C.A. §11-9-411 for \ndisability retirement benefits received by the Claimant. \nThe Respondents contend that the Claimant is receiving and has received all appropriate \nindemnity benefits to which she is entitled.   \n                    FINDINGS OF FACT AND CONCLUSIONS OF LAW \nBased on my review of the record as a whole, to include the aforementioned documentary \nevidence, other matters properly before the Commission, and after having had an opportunity to \nhear the testimony of the witness and observe her demeanor, I hereby make the following findings \nof fact and conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1.     The Arkansas Workers’ Compensation Commission has jurisdiction over this claim. \n \n2.      I hereby accept the above-mentioned proposed stipulations as fact. \n \n3.      The Claimant proved her entitlement to temporary disability compensation from  \n       \n      May 1, 2021 until  October 17, 2021.         \n           \n     4.          The Claimant proved by a preponderance of the evidence that she sustained wage- \n \n            loss disability in the amount of 27 % over and above her 10% impairment rating  \n             \n            for her low back injury of October 27, 2020.  The Claimant’s hip injury in the form  \n  \n            of a femoral neck fracture is a scheduled injury based on my review of the A.M.A.  \n \n\nMcKamie- H008571 \n \n6 \n \nGuides to Permanent Impairment, 4\nth\n Edition.  Therefore, this impairment rating   \nfor  this  injury  has  not  been  taken  into  consideration  for  the  assessment  of  the  \nClaimant’s wage-loss disability.       \n \n5.      The Claimant’s is entitled to a controverted attorney’s fee on the indemnity benefits  \n \nawarded herein.  \n \n6.      All issues not litigated herein are reserved under the Arkansas Workers’ \n \n     Compensation Act.      \n \nSummary of Evidence \nDuring the hearing, the only witness to testify was Ms. Mary McKamie/the Claimant.  \n            The record consists of the December 13, 2022 hearing transcript and the following exhibits: \nSpecifically, Commission’s Exhibit No. 1 includes the Commission’s Prehearing Order filed on \nSeptember 14, 2022 and the parties’ responsive filings; Claimant’s Exhibit No. 1 is an Abstract of \nTables  of  Contents,  which  is  made  up  of  nine  (9)  numbered  pages; Claimant’s  Exhibit  No.  2 \nincludes  a  Table  of  Contents/Medical  Reports  and  other  related  documents  consisting  of  one \nhundred  and  seventy-one    (171)    pages;  and  Respondents’  Medical  Exhibit  includes  six  (6) \nnumbered  pages  and  it  has  been marked as Respondents’ Exhibit 1.    Also,  the  Respondents \nintroduced into evidence the Claimant’s Oral Deposition of September 8, 2022.  It has been marked \nas Respondents’ Exhibit No. 2 and is retained in the Commission’s file.  Moreover, the e-mails \nregarding wage-loss disability for the Claimant’s hip impairment rating exchanged with the parties \nafter the hearing have been blue-backed and made a part of the record.  They have been marked \nCommission’s Exhibit No. 2.     \n \n\nMcKamie- H008571 \n \n7 \n \n                                                  Testimony \n  \n The Claimant, age 61, is a high school graduate and has earned some college credits.  She \nhas been married for almost three decades.  Her husband is currently retired.  Prior to her October \n27, 2020 accidental work injury, the Claimant had worked for the Arkansas Department of Human \nServices since November 7, 2005.  At the time of the Claimant’s accidental injury, she worked as \na local office administrative assistant, in the Lewisville office.   Her employment duties entailed \nanswering the window when clients brought in information,  and she made copies of documents \nfor them on an as needed basis.  She also assisted them with filling out applications and/or using \nthe kiosk.  Her division also collected canned goods and things of that nature for donations made \nto the Division of Children and Family Services.  The Claimant testified that some of the donations   \ninvolved lifting.  She was also responsible for ordering office supplies.  She testified that once the \nsupplies were delivered, she had to check them in, and put them away.   According to the Claimant, \nthe supplies included heavy cases of  paper. \n She confirmed that at the time of her accidental injury of October 27, 2020, her hourly rate \nof pay was $13.70.  However, the Claimant testified that overtime was a rare occurrence.  Next, \nthe  Claimant  explained  the  facts  and  circumstances  surrounding  her  October  27  injury.    The \nClaimant  essentially  testified  that  as  a  safety  measure  to  prevent  the  spread  of  COVID-19,  \nmanagement had installed shower curtains around their desks.  She agreed that she slipped on her \ncoworker’s shower curtain or the carpet as she got up to give her coworker a band-aid because she \nhad a cut on her finger.  Following her fall, the Claimant had an immediate onset of symptoms, \nwhich were all on her left side.  She testified that she was unable to move and thought at that time \nshe had jammed her leg.  Subsequently, the Claimant was transported to Wadley Regional Medical \n\nMcKamie- H008571 \n \n8 \n \nCenter.  There, the Claimant was diagnosed with a broken left hip for which she had to undergo \nsurgery.   She confirmed that Dr. Gregory Smolarz performed her hip surgery.   \n After  her  discharge  from  the  hospital,  the  Claimant  continued  to  follow  up  with  Dr. \nSmolarz.  She verified that a nurse case manager, Nicky Hobby, attended her appointments with \nher.    The  Claimant  agreed  that the nurse case manager’s note is correct wherein she stated  the \nClaimant  was walking with an antalgic gait and requiring the assistance of a cane.  She confirmed \nthat she had difficulty transitioning from a seated position, and she continues to deal with pain in \nher left hip area. \n The Claimant confirmed she was released from care by Dr. Smolarz on January 7, 2021 \nbut she did not return to work for DHS until January 11, 2021.  She testified  that she tried working \nbut had difficulty with walking, standing, lifting, and sitting.  These activities caused the Claimant \nto have constant pain in her hip, down her leg, and into her knee and her lower back.  Therefore, \nthe  Claimant  submitted  her  resignation,  effective  April  30,  2021  from  her  position  at  DHS.  \nAccording  to  the  Claimant,  she  decided  to  retire  because  she  was “just  working,  hurting  and \ncrying.”  The Claimant testified that once she got home, she cried even harder, and was unable to \ndo any cooking or cleaning.  Instead, the Claimant testified that she had to get on a heating pad to \nease her pain.”  The Claimant underwent an MRI of the lumbar spine and therapy was ordered by \nDr. Smolarz during this time frame.   \nShe confirmed that August 25, 2021 an MRI of her back was performed which revealed a \nherniated disc at L4-5.  As a result, the Claimant came under the care of Dr. Calhoun for her back \ncondition.  Dr. Calhoun performed surgery on the Claimant’s low back in the form of a discectomy \non October 18, 2021.  She confirmed that the respondent-carrier began paying her temporary total \ndisability  benefits  again  following  her  back  surgery.    The  Claimant  confirmed  that  she  started \n\nMcKamie- H008571 \n \n9 \n \ndrawing benefits from the Arkansas Public Employees Retirement System (APERS)  during this \nperiod of time.  She also applied for Social Security Disability benefits for which she is awaiting \na court date.  The Claimant confirmed that she currently draws monthly retirement benefits in the \namount of $210.17.     \n The Claimant confirmed that at the beginning of her effective date of her retirement (May \n1, 2021), she did not receive any temporary total disability benefits.  She agreed that she is asking \nfor  consideration  of  those  benefits.    The  Claimant  also  confirmed  that  she  was  not  capable  of \nworking at the time of her retirement.  She agreed that she is asserting that she was unable to work \nfrom May 1, 2021 until October 2021.   \n Regarding  the  surgery,  the  Claimant  testified  that  it  took  away  some  of    her  pain in  the \nback of her leg, but she still has pain going the side into her lower back.  The Claimant confirmed \nthat  she  continues  with  the  symptoms  reflected in  Dr.  Calhoun’s  report  of  January  2023. \nSpecifically, said symptoms include pain in her left buttock, left groin and left thigh to mid-thigh \nlevel, which the Claimant described as a “squeezing sensation.”  She also stated that she is unable \nto stand for more than five minutes before “her leg starts to feel like it is going to give-out.”   \n The Claimant confirmed that she brought to court with her a cane and a rolling walker.  She \nexplained that she must rely on the cane for walking short distances but if she has to go any distance \nsuch as the courtroom hallway, she uses the walker.  According to the Claimant, her walker has \nwheels and a seat, therefore if she has to stop and sit for a second, she can do so, and this makes it \neasier for her to get around.  The Claimant agreed that Dr. Calhoun referred her to Dr. Roman for \npain management.  She confirmed that she continues to see Dr. Roman.  The Claimant explained \nthat although Dr. Roman performed a lumbar epidural injection, this eased some of her pain, but \nshe still has ongoing pain related to her back.  According to the Claimant, she has had a diagnosis \n\nMcKamie- H008571 \n \n10 \n \nof  rheumatoid  arthritis  for  twenty-seven  years.    Her  rheumatologist  is  Dr.  Jonathan  Thomas,  in \nTexarkana.    She  takes  a  medication  regimen  for  this  condition.    Currently,  the  Claimant  takes \nLeflunomide,  Methotrexate,  Tramadol  and  Leucovorin.  The  Claimant  testified  that  she  was \ninstructed by Dr. Roman that the above medications were sufficient to provide relief for her hip \nand back pain.  She testified that she told Dr. Roman she did not want to take any more pain pills.  \nThe Claimant denied any other treatment or procedures by Dr. Roman other than the one epidural \ninjection.   Per the Claimant, she is scheduled for a follow-up visit with Dr. Roman in March 2023.   \n The Claimant confirmed that her cane became entangled on her chair at her kitchen table, \nand  she  fell  at  home  and  broke  her  pelvis.    She  confirmed  that  there  was  some  mention  of  the \npossibility  of  a  screw “backed-out”  but  it  ended  up  resolving  itself  somewhat.  The  Claimant \nconfirmed that the screw is still “backed-out” but no additional treatment has been recommended \nto resolve it.  She agreed that she recovered from the broken pelvis with no lasting problems, and \nthat she was released from care associated with this fall on April 21, 2022.   \n According to the Claimant, she continues with problems related to her left hip and back.  \nSpecifically, she testified: \nQ So can you describe for us the pain that you have in your left hip and back \nnow? \n \nA There  is  a  pain  in  that  left  buttock  area.    It  goes  into  that  hip  and  it  goes \ndown the leg right to my knee.  It doesn’t go quite to the knee, probably four inches \nfrom the knee, and it goes in the groin area, and it’s in that lower back.  I have to  -  \nif I’m sitting in a chair, as you can see, I have a pillow behind my back or something \nkeep me sitting up because it hurts. \n \nQ Did  the  one  epidural  give  you  any  temporary  relief  from  any  of  those \nsymptoms or issues? \n \nA Not  really.    It  helped  some  for  maybe  about  week,  but  never  relieved  the \npain. \n \n      \n\nMcKamie- H008571 \n \n11 \n \n As  of  the  date  of  the  hearing,  the  Claimant  continued  to  receive  payment  for  the  17% \nimpairment  rating  to  her  body  as  whole  from  the  Respondents.    She  was  asked  to  do  a  self-\nassessment of her limitations at this point in terms of her ability to lift and carry  objects around \nher household without causing herself more than mild pain or discomfort.  Her reply was “Less \nthan twenty pounds.  I mean, I can’t lift my granddaughter and she’s two.”  The Claimant testified \nthat her granddaughter weighs approximately thirty pounds.  She testified she is able to sit for only \nthirty minutes at a time in a chair without repositioning.  However, the Claimant can stand at her \nkitchen  sink  for  no  more  than  five  or  ten  minutes.    She  uses  a  barstool  to  wash  dishes.    The \nClaimant testified that she uses a barstool to do laundry, and she does not lift any of her laundry \nbaskets.  When the Claimant  goes to the grocery store, she uses a handicapped shopping cart, or \nshe leans over the cart to take the weight off of her legs and that gives her some relief.  However, \nthe Claimant testified that it is almost impossible for her stand in a line for check out.  Around the \nhouse, the Claimant is able to do a few chores, but she has to grab hold of furniture as she goes \nfrom one area to other parts of her house.  The Claimant uses her walker to go to the mailbox and \nto walk her yard.   \nShe confirmed that during the three-month period that she returned to work, prior to them \ndiscovering she had a herniated disc in her back, she relied on her cane at work.   \nRegarding an average day for the Claimant, she testified: \nA Well, I get up – if I sleep in bed, I get out of the bed. I get up and I’ll go in there \nand turn the coffee on the and then my husband and I will fix breakfast together because \nhe can stand at the stove and do more than I can, and I’ll make the toast and things like that \nover at the kitchen.  If I’m cooking, I have to have the barstool over at the stove. \n\nMcKamie- H008571 \n \n12 \n \nThe Claimant can dust by sitting on her sofas and leaning over to do that.   Her husband \ndoes  the  sweeping,  mopping,  and  vacuuming.    She  is  able  to  drive  by  positioning  her  legs  and \nmoving around in the seat to take the pressure off her hip and back.  The Claimant testified that \nquite often she sleeps in her recliner because it provides heat and vibration, which helps to ease \nher pain.  Per the Claimant, she sleeps in the recliner four days out of the week.  She is not able to \ngarden anymore because she is unable to operate the tiller.   The  Claimant is unable to remove the \nleaves and other debris to tend to her flowerbeds because she has to have a chair and help from \nothers.  According to the Claimant, she no longer can decorate for the different seasons.  She was \nonce active with the Relay for Life, but she has not done that in a while, and nor she has not been \ninvolved in any activities outside of her home.   \nOnce  the  Claimant  recovered  from  her  fall  at  home,  she  considered  returning  to  work.  \nAccording to the Claimant, she put in some applications, but no one would hire her.  The Claimant \nhas  past  work  experience  as  a  cashier  at  Family  Dollar,  Walmart,  and  a  Shell  station.  She  has \nunloaded  trucks  of  merchandise.  She  also  worked  as  a  CNA,  substitute  teacher,  and  as  an \naide/paraprofessional  at  the  school.    The  Claimant  confirmed  that at page 171 of Claimant’s \nExhibit, she provided a list of the job applications and places that she submitted job applications.  \nHowever, the Claimant agreed that she has not received any follow up or job offers.   \nThe Claimant confirmed that she would have continued working until full retirement had \nshe not had her injuries.   She confirmed that full retirement age for her would have been 67½ .  \nThe Claimant denied any prior problems with her back or hip before her  work-related injury of \nOctober  2020.   In  addition to  rheumatoid  arthritis,  the  Claimant  suffers  from  diabetes  and  high \nblood pressure.  The Claimant denied that her pre-existing conditions interfered with her working \nlife or her ability to perform any of her job functions.   As far as prior surgeries in her lifetime, the \n\nMcKamie- H008571 \n \n13 \n \nClaimant  had  her  appendix  removed  when  she  was  17  years  old.    She  also  underwent  a  tubal \nligation.  The Claimant previously suffered a broken left wrist and a trigger finger.   However, she \ndenied  that  any  of  these  conditions  interfered  with  her  working  life.    She  also  suffered  a  prior \nbroken left shoulder, but no surgery was required.  According to the Claimant, this condition did \nnot interfere with her job abilities or performance.   \nOn cross-examination, the Claimant confirmed she completed three years of college work \nat SAU.   The Claimant confirmed that essentially, she might have one year of college left before \nshe could complete a college degree.  She testified that she was studying to become an elementary \nschool teacher.  The Claimant testified that when she went to work for DHS, she started out as a \ndocument examiner and moved up to a secretary II position.  Later, the Claimant’s position was \nreclassified to a local office administrative assistant (LOAA), which is the position she held at the \ntime of her October 27, 2020 work-related injury.  \nWith respect to her employment duties, the Claimant  confirmed she was  responsible for \nentering information into the computer.  She also assisted with the computer set-ups and things of \nthat nature.  The Claimant testified that she entered information into the computer when people \napplied  for  assistance,  such  as  Medicaid  and  food  stamps.    However,  she  denied  that those \nactivities required a lot of typing.  She verified that she was doing those kinds of activities during \nthe last four months of her employment until she retired.  The Claimant also confirmed that she \nworked full-time during her last few months of employment with DHS.   \nShe confirmed that Dr. Smolarz performed surgery on her hip.  As of the date of hearing, \nthe Claimant did not have any additional surgeries scheduled for her hip although she has an issue \nwith “a screw backing out.”  She admitted that she has no return appointments scheduled with Dr. \nSmolarz.  The Claimant confirmed that he released her to work on January 7, 2021.  She confirmed \n\nMcKamie- H008571 \n \n14 \n \nseeing Dr. Smolarz after her fall with the cane earlier in the year.   The Claimant testified that it \nhas  been  six  months  since  her  last  visit  with  him.    She  reaffirmed  that  she  returned  to  work  in \nJanuary 2021 and retired on April 30, 2021.  As of May 1, the Claimant is considered retired and \neligible for retirement benefits.  She denied that she went back to DHS after she retired and had \nany further discussions with them about returning to work for them.  The Claimant admitted that \nshe lives in Lewisville, Arkansas and it is about thirty-five miles from Texarkana.    \nThe Claimant confirmed that she saw Dr. Michael Calhoun for her low back problems for \nwhich he performed a surgical procedure.  She denied that Dr. Calhoun has planned any additional \nprocedures for her low back.  The Claimant denied telling Dr. Calhoun in June of 2022 that she \nwished to take only over-the-counter medication  for her pain.  However,  she did admit that she \ntold him she did not want to take any more medication because she hates swallowing a bunch of \npills. \nThe Claimant confirmed that she is able to operate a computer.  She also has the ability to \noperate a smart phone and send a text message and do e-mail on her phone.  She balances her own \ncheckbook and is able to drive.  The Claimant testified that the potential employers of record did \nnot require an online application process.  She denied having looked into the possibility or come \nacross any employer that might allow her to work remotely from her home.   \nRegarding additional medical treatment, the Claimant agreed that no other epidural steroid \ninjections are planned for her low back or hip are planned by Dr. Roman.  The Claimant denied \nthat Dr. Roman or Dr. Smolarz has proposed any additional surgery, nor does the Claimant have \nany return appointments scheduled with Dr. Smolarz or Dr. Calhoun. \n\nMcKamie- H008571 \n \n15 \n \nOn redirect-examination, the Claimant denied she was in any position to pursue a degree \ngiven her current circumstances.  The Claimant testified that the only way she could teach is from \nhome.                                                      \nMedical Evidence \n An  Operative  Report  was  authored  by  Dr.  Gregory  J.  Smolarz  on  October  28,  2020 \nregarding his surgical intervention on the Claimant’s hip:  \nPre-Operative Diagnosis \n Minimally displaced comminuted subcapital left femoral neck fracture.  \n \nPost-Operative Diagnosis  \nSame. \nProcedure(s) Performed  \nCannulated screw fixation left hip. \n \nOn  November  10,  2020,  the  Claimant  presented  to  Dr.  Smolarz  for  postop  follow-up  of  \nplacement of three cannulated hip screws, which he performed on her left hip two weeks ago.  The \nClaimant reported she was feeling better and keeping the weight off of her left hip.  At that time, \nthe Claimant denied any complaints of numbness or tingling.  An MRI of the Claimant’s left hip \nwas performed with an impression of: “1. Left femoral neck ORIF with anatomic alignment.  2. \nBilateral hip calcific tendinitis.”  His assessment was “Supcapital fracture of neck of femur, left, \nclosed, initial encounter.”  Dr. Smolarz instructed the Claimant to remain toe touch weight bearing \non the left for another two weeks.  After that, the Claimant could start walking on the left side.  Dr. \nSmolarz discussed with the Claimant the possibility of avascular necrosis in six to twelve weeks. \nAt  that  time,  Dr.  Smolarz  directed  the  Claimant  remain  off  work  pending  her  return  visit  and \nfindings at the next scheduled visit.  He noted that the nurse case manager who presented with the \nClaimant at the office visit was also provided this information. \n\nMcKamie- H008571 \n \n16 \n \n The Claimant presented to the office of  Dr. Smolarz for follow-up of her hip surgery under \nthe  care  of  Heather  Leslie,  CCMA  (Medical  Assistant),  December  10,  2020.      Per  these  clinic \nnotes, the Claimant was tolerating standing.  On physical examination, Dr. Smolarz opined that \nthe Claimant walked with a slight antalgic gait favoring the left lower extremity.  Her incision was \ncompletely healed.  Left hip x-rays revealed “No acute bony findings and the facture was healing.”   \n  On March 23, 2021, the Claimant presented to Dr. Smolarz for follow-up of her hip injury.  \nThe Claimant was accompanied by the nurse case manager, but she remained in the waiting area \ndue to clinic restrictions.  At that time, the Claimant continued to have pain on her left hip.  Dr. \nSmolarz  reviewed  findings  of  x-rays  of  the Claimant’s hip  with  her.  Specifically,  this  x-ray \nindicated  that  the  facture  was  healing  and  in  good  position  and  alignment.    His  assessment \nincluded: “1. Subcapital fracture of femur, left, closed, with routine healing, subsequent encounter.  \n2.  Hip pain, left.”   The  Claimant  was  directed  to  undergo  a  left  hip  cortisone  injection  under \nfluoroscopy.”     \n The Claimant resigned from her position with the Arkansas Department of Human Services \non March 31, 2021 effective April 30, 2021.   \n Dr.  Rudy  Braza  performed  a  fluoroscopic-guided  left  hip  steroid  injection  on  the \nClaimant’s left hip  on April 15, 2021 with an impression of: “fluoroscopic-guided left hip steroid \ninjection without immediate complication.”        \n   On May 14, 2021 the Claimant presented to Dr. Smolarz for a follow-up visit of her left \nhip pain.  The Claimant reported continued pain in her left hip, but she did state that she was doing \nbetter after she got the steroid injection.  Per this clinic note, Dr. Smolarz performed x-rays of the \nClaimant’s left hip and reviewed the findings with her.  The findings indicated a healed fracture, \nthree screws in place and in good position with alignment.  Some degenerative changes were also \n\nMcKamie- H008571 \n \n17 \n \nnoted.  Dr. Smolarz  assessed the Claimant with “Subcapital fracture  of femur, left closed, with \nroutine healing, subsequent encounter.”   The  Claimant  was  given  a  prescription  for  physical \ntherapy of the left hip, which would give the Claimant the opportunity to strengthen the muscles \nand improve her overall pain.  Dr. Smolarz noted that the Claimant used a cane for support of her \nleft hip when walking.     \n Dr.  J. Michael Calhoun evaluated the Claimant on September 1, 2021 due to a complaint \nof lower extremity pain.  According to this clinic note, Dr. Smolarz stated that a lumbar MRI was \nrecently  obtained  with  findings  of   “L4-5  spondylolisthesis,  but  clearly,  a  large  central  disc \nherniation  at L4-5  with  stenosis.”    Dr.  Calhoun assessed  the  Claimant  with  “Lumbar  disc \nherniation  (M51.26);  Lumbar  stenosis  (M48.061);  Spondylolisthesis  of  the  Lumbar  Region \n(M43.16); and Lumbar Radiculopathy (M54.16).”  Dr. Calhoun opined that the Claimant’s work \ninjury  was  the  major  contributing  cause  of  the  development  of  her  disc  herniation.  Yet,  Dr. \nCalhoun  stated:  “I  will  consider  the  L4-5  spondylolisthesis  as  a  pre-existing  and  unrelated \ncondition.”  Nevertheless  Dr.  Calhoun  provided  the  Claimant  with  treatment  options  including \nsurgery, physical therapy, lumbar epidural steroid injections or a left L4-5 hemilaminectomy and \nmicrodiscectomy.  The Claimant elected to undergo surgical intervention for her back injury.    \n On October 18, 2021 the Claimant underwent lumbar surgery by Dr. Calhoun.  Per a clinic \nnote written that same day,  Dr. Calhoun wrote the following in an Operative Report: \nPREOPERATIVE DIAGNOSIS: \nL4-L5 central herniated nucleus pulposus with stenosis and radiculopathy. \n \nPOSTOPERATIVE DIAGNOSIS: \nL4-L5 central herniated nucleus pulposus with stenosis and radiculopathy. \n \nOPERATIVE PROCEDURES: \nLeft L4-L5 hemilaminectomy, microdiscectomy. \n \nDr. Calhoun authored a Post Operative Note on November 19, 2021.  \n\nMcKamie- H008571 \n \n18 \n \nThe  patient  is  one  month  status  post  a  left-L4-5  microdiscectomy.    She  still  has  some \nresidual left leg symptoms.  Her incision is okay.  She has started doing the exercises she \nwas shown from physical therapy.  We’re placing her on a Medrol Dosepak.  She has \nreceived Zanaflex 4 mg #30 with refills. She is not released to work in any capacity, but \nshe is retired. \n \n The Claimant saw Dr. Calhoun for a follow-up visit on December 16, 2021.  She was two \nmonths out post status left L4-5 microdiscectomy.  At that time, Dr. Calhoun noted the Claimant \nwas still having pain over her left lateral thigh.  He stated that this was the area where she had her \nleft femur fracture repaired.  Dr. Calhoun stated the plan was to see the Claimant back in the clinic \nin  a  month  and  at  that  time  maximum  medical  improvement  (MMI)  would  be  attained  and  she \nwould have a 10% impairment rating to the body as a whole.  Her current restrictions would include \nno lifting more than ten pounds and no repetitive bending, twisting, or lifting. \nOn  January  5,  2022  the  Claimant  saw  Dr.  Calhoun  for  a  follow-up  visit  of  her  lumbar \nsurgery. Dr. Calhoun noted that the Claimant would see her orthopedist.  However, Dr. Calhoun \nstated , “ I doubt the orthopedist will have anything else to offer the patient (the Claimant) and will \ncontinue to say her pain is radicular in nature.”  At that time, the Claimant reported to Dr. Calhoun \nthat she still had pain and tenderness over the left lateral thigh.  Basically, Dr. Calhoun opined that \nthe Claimant’s left thigh pain was the result of her lower back injury.  He pronounced the Claimant \nto be at MMI with regard to her lumbar surgery.  However, Dr. Calhoun stated that the Claimant \ndid not have any specific restrictions with regard to her lumbar surgery.  Specifically, Dr. Calhoun \nwrote “She has suffered a 10% impairment to  the  whole  person  according  to  the  4\nth\n  edition  of \nAMA Guides to Permanent Impairment.” \nThe Claimant underwent an Independent Medical Evaluation on February 14, 2022 by Dr. \nCarlos Roman due to continued left hip, groin, and thigh pain.  The Claimant was noted to walk \nwith an antalgic gait with the use of a single pronged cane.  At that time, the Claimant reported \n\nMcKamie- H008571 \n \n19 \n \nthat she had continued pain down her posterior thigh that went away with surgery.  However, since     \nher surgery, the Claimant stated the pain was constant in her left groin and left buttock.  Dr. Roman \nstated the following Final Diagnoses: “1. Lumbar radiculopathy left side L3-L4.  2. Low back pain. \n3. Left hip pain. 4. Status post left hip fracture. 5. Open reductions and internal fixation, left hip.  \n6. Lumbar decompressive surgery, L4-L5. 7. Lumbar disc bulge, L4-L5.  8. Significant rheumatoid \narthritis.  9. Long-term opiate use. 10. Opiate use by way of Tramadol.”  He recommended that \nthat  the  Claimant  undergo  a  pinpoint  steroid  injection  at  the  greater  trochanter  in  the  clinic  to \nprovide  some  relief  of  symptoms  and  suggested  a  LESI  at  L4-L5.      Dr.  Roman  opined  that  the \nClaimant’s symptoms were consistent with swelling at the L4-L5 nerve root.                                                \nOn March 8 2022, the Claimant was scheduled for a return visit to Dr. Gregory Smolarz, \northopedic with complaints of pain in her left hip after on March 4, 2022.  She reported a fall over \na kitchen chair and landed on her left hip.  The Claimant was seen at Wadley ER on the day of her \nfall.  She was referred over to him for further evaluation for a possible fracture in her pelvis.  Dr. \nSmolarz noted that the Claimant had a history of previous sub-capital fracture of left femur.  Since \nher  fall,  the  Claimant  reported  she  had  continued  pain  and  difficulty  standing  due  to  pain.    Her \npain was noted to be present prior to her fall.  Dr. Smolarz’s Assessment/Plan included: \n1.  Closed fracture of multiple rami of left pubis, initial encounter (HC Category). \n2.  Closed subcapital fracture of let femur with delayed healing, subsequent encounter.   \n \nFor the left hip he discussed with the Claimant the possibility to a bipolar endoprosthesis  or total \nhip replacement. Dr. Smolarz directed the Claimant to follow-up with him in four to six weeks. \n The Claimant returned to Dr. Smolarz on April 21, 2022 for a follow-up visit for her left \nhip and pelvis pain.  Dr. Smolarz attributed the Claimant’s hip pain to one of the screws in the hip \nbeing backed out some, of which was revealed on a CT scan of the pelvis.  Dr. Smolarz noted that \nthe Claimant’s continued hip pain was due to the screw.  He stated that the Claimant’s  pelvic \n\nMcKamie- H008571 \n \n20 \n \nfracture  was  healed,  and  the  screws  were  in  the  same  place  since  the  time  the  CT  scan  was \nperformed.    However,  Dr.  Smolarz  told  the  Claimant  he  would  be  unable  to  remove  the  screw \nbecause it was needed for stability.  At that time, Dr. Smolarz opined that the Claimant was doing \nwell, and no further treatment was indicated at that time for her left hip.      \n On May 9, 2022, the Claimant returned to Dr. Roman for severe pain down her left hip, \nleft leg, and lower back, for which he performed an epidural injection.   \n PREOPERATIVE DIAGNOSES: \n1. Lumbar radiculopathy left L4-L5. \n2. Lumbar disk disease. \n3. Previous lumbar decompressive surgery.    \n  \nPOSTOPERATIVE DIAGNOSES: \n1. Lumbar radiculopathy left L4-L5. \n2. Lumbar disk disease. \n3. Previous lumbar decompressive surgery. \n \nOPERATIVE PROCEDURE: \nLumbar epidural steroid injection, L4-L5, left bias. \n \nDr. Roman saw the Claimant for a follow-up visit on June 7, 2022 due to ongoing pain.  At  \nthat time, the Claimant had radicular pain present in the L4 pattern but overall, her pain was under \ncontrol.  The LESI performed in May gave her some relief and she no longer experienced pain in \nthe groin area.  The Claimant continued to walk with an antalgic gain with the use of a single prone \ncane.  She had a little bit of joint tenderness of the greater trochanter of the left, but he injected \nthat last time with good relief.  Dr. Roman released the Claimant from his care with follow-up in \na year.       \n An  Impairment  Rating  Evaluation  was  performed  on  October  3,  2022.    The  examiner \nassessed the Claimant with a 10% whole person rating per Dr. Calhoun for her lumbar injury.  The \nClaimant was assessed an additional 8% whole impairment for her left side femoral neck fracture.   \n\nMcKamie- H008571 \n \n21 \n \nThe  examiner  combined  these  two  ratings  using  the  value  charts  (p.  322  of  the  Guides),  which \namounted to a totaled combined rating of 17% to the whole person.  The Respondents accepted \nthis rating and began making payments to the Claimant.      \n The  Claimant’s  Oral  Deposition  was  taken  on  September  8,  2022.\n1\n    Her  deposition \ntestimony is consistent with her hearing testimony.  The original copy of the Claimant’s deposition \nis retained in the Commission’s file.       \nAdjudication \nA. Temporary Total Disability Compensation  \nThe Claimant contends she is entitled to temporary total disability compensation from May 1, \n2021 through October 17, 2021.  The Respondents contend that the Claimant is not entitled to any \nadditional indemnity benefits because had she not chose to retire, she would still be working for \nDHS.    \nIn the case at bar, on October 27, 2020 the Claimant suffered an admittedly compensable injury \nto her left hip, which is a scheduled injury.  Subsequently, the Claimant was found to have suffered \na  compensable  injury  to  her  back,  which  is  an  unscheduled  injury.    Given  the  severity  of  the \nClaimant’s compensable back injury, I am convinced that it was primarily for that reason she was \nunable to continue working at DHS beginning on May 1, 2021 and continuing through October \n17, 2021.  Therefore, an analysis for temporary total disability compensation for the Claimant’s \nscheduled hip injury is not necessary.     \n With that in mind, an injured employee for an unscheduled injury is entitled to temporary total \ndisability  compensation  during  the  time  that  she  is  within  her  healing  period  and  totally \n \n1\n Regarding the Claimant’s Oral Deposition of September 8, 2022 there is a clerical error regarding the file \nnumber reflected on this document.  The correct WWC File No. for this claim is: HOO8571.  \n\nMcKamie- H008571 \n \n22 \n \nincapacitated  to  earn  wages.   Arkansas  State  Highway  and  Transportation  Department  v. \nBreshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  The healing period is that period for healing of \nthe injury which continues until the employee is as far restored as the permanent character of the \ninjury will permit.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  If the \nunderlying condition causing the disability has become stable and nothing further in the way of \ntreatment will improve that condition, the healing period has ended. Id.  Temporary total disability \ncannot be awarded after the Claimant’s healing period has ended.  Trader  v.  Single  Source \nTransportation, Workers’ Compensation Commission E507484 (February 12, 1999). \n Here, the Claimant suffered an admittedly compensable injury to her left hip on October \n27, 2020 when she tripped and fell while working for the Respondents as described above in full \ndetail.  The Claimant was transported to a local hospital following her fall.  The Claimant came \nunder the care of Dr. Smolarz and he performed surgery on the Claimant’s left hip on the day of \nthe incident.  \nThe  Claimant  was  the  sole witness to testify.  After having observed the Claimant’s \ndemeanor during the hearing and when comparing her testimony with the medical evidence and \nother  documentary  evidence,  I  found  her  to  be  a  credible  witness,  particularly  regarding  her \ninability to work due to her compensable back injury for the time frame in question.  Therefore, \nthe Claimant’s refusal to continue her employment with DHS beginning May 1, 2021 was not \nunreasonable and is not a bar to her claim for temporary total disability benefits.                 \nWith that in mind, the Claimant was released to return to work on January 7, 2021, by Dr. \nSmolarz due to her admittedly compensable left hip injury.  Therefore, the Claimant returned to \nwork  for  DHS  on  January  11,  2021  in  her  previous  job.    However,  the  Claimant  experienced \nsignificant and excruciating pain down the left side of her back into left knee.   At that time, the \n\nMcKamie- H008571 \n \n23 \n \nClaimant  had  difficulty  working,  standing,  lifting,  and  sitting.    Therefore,  the  Claimant  retired \nfrom DHS effective April 30, 2021.  Her testimony demonstrates she was not able to continue to \nperform her employment duties at that time due to back pain and other related symptoms.    \nSubsequently,  the  Claimant  came  under  the  care  of  Dr.  Calhoun  for  her  back  condition.   \nOn August 25, 2021 the Claimant underwent a lumbar MRI.  She was found to have a significant \nherniated disc at L4-5 causing impingement that was the source of her continuing symptoms.  Dr. \nCalhoun related this to her work injury of August 27, 2020.   The Claimant underwent back surgery \nin the form of a left L4-5 microdiscectomy  by Dr. Calhoun on October 25, 2021.  Her testimony \nvalidates that she was unable to work from May 1, 2021 until at least October 17, 2021 due to her \ncompensable  back  injury.    Given  the  severity  of  the Claimant’s herniated  disc  which  required \nsurgery,  I am convinced she had a good faith basis for being unable to perform her job duties and \nthat it  was  due  to  her  compensable  back  injury  that  she  was  unable  to  continue  performing  her \nemployment at DHS, beginning on May 1, 2021.  Of significance, the parties stipulated that the \nClaimant reached MMI for her back injury on December 16, 2021.  \n   Under these circumstances,  I  find that the Claimant proved  she  remained within a healing \nperiod and was totally incapacitated to earn wages beginning May 1, 2021 and continuing  until \nOctober 17, 2021.   As such, I further find that the Claimant proved her entitlement to temporary \ntotal disability from May 1, 2021 through October 17, 2021.  \nB. Wage Loss Disability \nHere, the Claimant has asserted her entitlement to wage loss disability over and above her   \n10% impairment rating for her compensable back injury of October 2020.  The parties stipulated \nthat the Claimant was entitled to a determination of wage disability of the combined rating of 17% \nfor the 8% hip impairment rating and the 10% impairment rating for the lumbar spine.  However, \n\nMcKamie- H008571 \n \n24 \n \nper my e-mail exchanges with the parties in this regard (which has been blue-backed and made a \npart of the record as Commission’s Exhibit 2),  I find that the Claimant’s hip injury in the form of \na  femoral  neck  fracture,  is  listed  in  the  A.M.A.  Guides  4\nth\n  Edition  under  the “lower extremity \nimpairments” section.  Therefore, I find that the Claimant’s hip injury is a scheduled injury.  As \nsuch,  I  must  agree  with  the  Respondents  that  only  the  lumbar  spine  impairment  rating  of  10% \nshould be used in the wage-loss disability determination.   \n  In that regard, a Claimant who has sustained a scheduled injury is limited to the applicable \nallowances in Ark. Code Ann. §11-9-521 and such benefits cannot increased by consider wage-\nloss factors Federal Compress &Whse. v. Risper, 55 Ark. App. 300, 935 S.W. 2d 279 (1996).  \n            When  considering  claims  for  permanent  partial  disability  benefits  in  excess  of  the \nemployee's   percentage   of   permanent   physical   impairment,   the Workers’  Compensation \nCommission  may  take  into  account,  in  addition  to  the  percentage  of  permanent  physical \nimpairment,  such  factors  as  the  employee's  age,  education,  work  experience,  and  other  matters \nreasonably expected to affect her future earning capacity.  Ark. Code Ann. § 11-9-522(b)(1).  In \nconsidering  factors  that  may  affect  an  employee's  future  earning  capacity,  the  appellate  court \nconsiders the Claimant' motivation to return to work, since a lack of interest or a negative attitude \nimpedes an assessment of the claimant's loss of earning capacity.  Ellison v. Therma Tru, 71 Ark. \nApp. 410, 30 S.W.3d 769 (2000). \nThe Claimant is 61 years of age.  She attended college for three years and studied to become  \nan elementary educator.  However, the Claimant essentially testified that she is physically unable \nto  return  to  college  due  to  her  compensable  back  injury  of  October  2020.    The  Claimant  began \nworking for DHS in November 2005.  While working for DHS she performed primarily clerical \ntype employment duties.  In her last position, the Claimant worked as an administrative assistant.  \n\nMcKamie- H008571 \n \n25 \n \nShe assisted clients with filling out applications for Medicaid and food assistance.  According to \nthe Claimant, she also had to make copies of documents for clients making application for these \nprograms.  The Claimant also assisted clients with the use of the kiosk.  According to the Claimant, \nshe ordered supplied for the office and was required to put them away.  This job task caused the \nClaimant to have to lift heavy cases of paper.  Her hourly rate of pay at the time of her 2020 injury \nwas $13.70.   \nHowever, the Claimant took early retirement from DHS effective April 30, 2021 because \nshe  was  having  ongoing  problems  with  chronic  back  pain  and  other  related  symptoms.    She \ncredibly testified she was unable to perform her employment duties without crying.  The Claimant \nunderwent  an  MRI  in  August  2021  and  her  complaints  of  pain  were  substantiated.    The  MRI \nrevealed  a  significant  herniation  at  L4-L5  causing  impingement.    Dr.  Calhoun  attributed  these \nfindings to the Claimant’s work-related injury of October 2020.    The Claimant underwent back \nsurgery under the care of Dr. Calhoun on October 18, 2021.   The Respondents accepted this claim \nand  have  paid  benefits  including  the  10%  impairment  rating  assessed  by  Dr.  Calhoun,  with  the \nexception of the above period of temporary total disability currently in question.  Yet, Dr. Calhoun \nassessed  the  Claimant  to  be  at  MMI  for  her  back  injury  on  December  16,  2021.    Since  leaving \nDHS in April 2021, the Claimant has not tried to return to work for DHS.  Following her deposition \nin  September  2022,  the  Claimant  submitted  job  applications  at  several  places.      However,  the \nClaimant has not heard from any of the potential employers or received any follow-up or job offers. \n She has prior work experience  as a  cashier  at Family Dollar, and at a Shell   gas station.  \nThe Claimant has also worked as a CNA, substitute teacher and as a paraprofessional.  \n The Claimant ambulates with a cane and walker.  She is unable to engage in prior hobbies \nof gardening because she is unable to use a tiller and perform other tasks related to gardening such \n\nMcKamie- H008571 \n \n26 \n \nas walking, bending, and standing.  The Claimant is able to perform limited household chores and \nher ability to ambulate is significantly restricted primarily due to her back injury.  Yet the Claimant \nis able to drive.  She is under the care of Dr. Roman for pain management due to her compensable \nback  injury  and  resulting  symptoms.    However,  the  Claimant  does  not  receive  any  additional \nprescription pain medication from Dr. Roman.  The Claimant’s medication regimen for rheumatoid \narthritis which includes Tramadol, is sufficient to cover her back pain and other symptoms.  Dr. \nRoman has performed one lumbar injection with temporary relief of her back pain symptoms.  She \nhas another follow-up visit with Dr. Roman this March of 2023. \n Although Dr. Calhoun assessed the Claimant a 10% impairment rating to her back, he did \nnot place any physical restrictions on the Claimant.  Despite this, the Claimant is limited in her \nability  to  lift,  walk,  stand,  and  sitting.    This  was  demonstrated by  the  Claimant’s  guarded \nmovements  during  the  hearing,  and  her  testimony  which  was  is  corroborated  by  the  medical \nevidence of record.  The Claimant credibly testified that she had not planned to return until she \nreached  full  retirement  age  for  Social  Security,  which  was  age  sixty-seven.    Currently,  the \nClaimant    receives  early  retirement  benefits  from  the  state  of  Arkansas/DHS  in  the  amount  of \n$210.17.  She has applied for Social Security disability benefits, but her claim was denied.  The \nClaimant is awaiting a court date on this claim.  She is married and her husband is retired.  In fact, \nher testimony demonstrates she has a granddaughter that she is unable to lift due to her injury. \n Based on my review of the evidence, including the Claimant’s credible testimony, and \nwhen  considering  her  advanced  age,  education,  work  experience,  the  nature  and  extent  of  her \ninjury, the 10% permanent anatomical impairment to the body as a whole for her back compensable \ninjury, use of assistive devices, her restricted activities of daily living, prior work experience, and \nthe fact that she had to take early retirement, and all other relevant matters reasonably expected to \n\nMcKamie- H008571 \n \n27 \n \naffect her future earning capacity, I find that the Claimant has proven by a preponderance of the \nevidence that she sustained a 27%  wage-loss earning capacity in excess of her 10% permanent \nanatomical impairment to the body as a whole for her compensable back injury of October 2020.        \nC. Controverted Attorney’s Fee \nIt is undisputed that the Respondents have controverted this claim for additional benefits as \nevidenced by their stipulation to conversion.  Therefore, pursuant to Ark. Code Ann. §11-9-715 \n(Repl. 2012), the Claimant’s attorney is entitled to a controverted attorney’s fee on all indemnity \nbenefits awarded herein.  \nAWARD \nThe Claimant has met her burden of proving by a preponderance of the evidence that she \nis entitled to temporary total disability compensation for her October 27, 2020 compensable back \ninjury from May 1, 2021 through October 17, 2021.   \nAdditionally, the Claimant proved by a preponderance of the evidence she sustained wage \nloss disability in the amount of 27% over and above her 10% permanent anatomical impairment \nfor her compensable back injury of October 27, 2020.    The Claimant’s hip injury in the form of \na  femoral  neck  fracture,  is  listed  in  the  A.M.A.  Guides  4\nth\n Edition  under  “lower  extremity \nimpairments” section.  Therefore, I find that that her hip injury is a scheduled injury.  As such, the \nhip injury is not a consideration for wage-loss disability. \nThe Respondents are directed to pay benefits in accordance with the findings of fact set \nforth herein this Opinion.  \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn \ninterest at the legal rate until paid, pursuant to Ark. Code Ann. §11-9-809 (Repl. 2012).   See \nCouch v. First State Bank of Newport, 49 Ark. App. 102, 898 S.W. 2d 57 (1995).  \n\nMcKamie- H008571 \n \n28 \n \nPursuant to Ark. Code Ann. §11-9-715 (Repl. 2012), the Claimant's attorney is entitled to \na 25% attorney's fee on the indemnity benefits awarded herein.  This fee is to be paid one-half by \nthe carrier and one-half by the Claimant.  \nAll  issues  not  addressed  herein  are  expressly  reserved  under  the Arkansas  Workers’ \nCompensation Act. \n      IT IS SO ORDERED. \n \n \n          ______________________________ \n          CHANDRA L. BLACK \n                 ADMINISTRATIVE LAW JUDGE","textLength":55449,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H008571 MARY MCKAMIE, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF HUMAN SERVICES, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, CARRIER/THIRD PARTY ADMINSTRATOR (TPA) RESPONDENT OPINION FILED MARCH 13, 2023 Hearing held before ADMINISTRATIVE LAW J UDGE...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["hip","back","herniated","lumbar","neck","fracture","knee","wrist"],"fetchedAt":"2026-05-19T23:09:23.803Z"},{"id":"full_commission-G804085-2023-03-09","awccNumber":"G804085","decisionDate":"2023-03-09","decisionYear":2023,"opinionType":"full_commission","claimantName":"Lisa Sowell","employerName":"Evergreen Packaging, LLC","title":"SOWELL VS. EVERGREEN PACKAGING, LLC AWCC# G804085 MARCH 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Sowell_Lisa_G804085_20230309.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Sowell_Lisa_G804085_20230309.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. G804085 \n \n \nLISA SOWELL, \nEMPLOYEE                                                                                  CLAIMANT \n \nEVERGREEN PACKAGING, LLC, \nEMPLOYER                                                             RESPONDENT \n \nACE AMERICAN INSURANCE CO., \nINSURANCE CARRIER/TPA                       RESPONDENT \n \n \n ORDER FILED MARCH 9, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LARRY J. STEELE, Attorney at \nLaw, Walnut Ridge, Arkansas. \n \nRespondents represented by the HONORABLE WILLIAM C. FRYE, Attorney \nat Law, North Little Rock, Arkansas.   \n \nORDER \nThis matter comes before the Full Commission on \nRespondents’ Motion to Correct and Supplement the Record and for \nExtension to File Brief.  The respondents inadvertently entered an \nincomplete copy of the deposition of Dr. Victor Vargas into the record and \nnow seek to Supplement the Record with a complete copy of Dr. Vargas’ \ndeposition.  The claimant has indicated that she has no objection to \nRespondents’ Motion.   \nAfter giving due consideration to the respondents’ motion, the \nclaimant’s response, and all other matters properly before the Commission, \nwe find that Respondents’ Motion to Correct and Supplement the Record \nshould be, and hereby is, granted.  The Court Reporter is directed to \ncomplete and file the deposition transcript in a timely manner.   \n\nSOWELL – G 804085                                                                             2 \n \nThe Full Commission also finds that the respondents’ Motion \nfor Extension to File Brief should be, and hereby is, granted.  Upon filing of \nthe deposition transcript, the Clerk of the Commission is directed to set \nanother briefing schedule in this matter. \nIT IS SO ORDERED.     \n \n           \n          __________________________________ \n      SCOTTY DALE DOUTHIT, Chairman \n \n \n      _      _______                               ________ \n          M. SCOTT WILLHITE, Commissioner \n \n                            \n          __________________________________ \n      MICHAEL R. MAYTON, Commissioner","textLength":2200,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G804085 LISA SOWELL, EMPLOYEE CLAIMANT EVERGREEN PACKAGING, LLC, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE CO., INSURANCE CARRIER/TPA RESPONDENT ORDER FILED MARCH 9, 2023 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Clai...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T22:29:46.525Z"},{"id":"alj-H202345-2023-03-09","awccNumber":"H202345","decisionDate":"2023-03-09","decisionYear":2023,"opinionType":"alj","claimantName":"Johnw Sears","employerName":"Duke Manufacturing Company","title":"SEARS VS. DUKE MANUFACTURING COMPANY AWCC# H202345 MARCH 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SEARS_JOHNW_H202345_20230309.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SEARS_JOHNW_H202345_20230309.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H202345 \n \nJOHN W. SEARS, Employee                                        CLAIMANT \n \nDUKE MANUFACTURING COMPANY, Employer                                       RESPONDENT \n \nCNA INSURANCE COMPANY, Carrier                                                           RESPONDENT \n \n \n OPINION FILED MARCH 9, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by TODD WOOTEN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  December  13,  2022,  the  above  captioned  claim  came  on  for  hearing  at  Fort  Smith, \nArkansas.  A pre-hearing conference was conducted on August 4, 2022, and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the hearing, the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on October 25, 2021. \n 3.   The respondents have controverted the claim in its entirety from November 1, 2021. \n 4.   Claimant’s compensation rate for temporary total disability benefits is $736 per week. \n At the hearing, the parties agreed to litigate the following issues: \n1.  Whether claimant sustained a compensable injury on October 25, 2021. \n2. Whether claimant is entitled to medical benefits. \n\nSears-H202345 \n2 \n \n 3. Whether claimant is entitled to temporary total disability benefits. \n 4. Attorney fees. \n The claimant contends that: \n“1. The claimant, John Sears, sustained a compensable lower extremity injury on October \n25, 2021 while working for Duke Manufacturing in Illinois. \n2. Despite  objective  evidence  of  injury,  the  respondents  denied  compensability  of  the \nclaimant’s injury. \n3. The claimant contends that he is owed medical benefits and temporary total disability \nbenefits from October 25, 2021 to a date yet to be determined. \n4. Due to the controversion of entitled benefits, the respondents are obligated to pay one \nhalf of the claimant’s attorney’s fees. \nThe respondents contend that: \n“a. Respondents contend that additional medical treatment is not reasonable or necessary \nand should be denied. \nb. Respondents contend that all appropriate benefits have been paid. \n c. Claimant  initially  refused  medical  treatment  for  the  alleged  injury  in  Illinois.  Upon \nreturn  to  Arkansas,  claimant  presented  for  one  visit  to  the  doctor  at  the  urgent  care  clinic  on \nNovember  1,  2021.  An  x-ray  of  his  right  ankle  revealed  no  fractures  or  dislocations.  Talar  dome \npreserved.  Hindfoot  degenerative  changes.  Calcaneal  enthesophyte  at  the  insertion  of  the  Achilles \ntendon. The impression of Dr. Urban was no ankle fracture or dislocation. Respondent Duke paid for \nthe one authorized visit and put claimant on light duty after the doctor determined that nothing was \nbroken or torn, and that claimant was fit to continue work. Claimant did not call, return to work, and \nsubsequently abandoned his job. Accordingly, claimant’s employment was terminated on November \n\nSears-H202345 \n3 \n \n15, 2021.”   \n From  a  review  of  the  entire  record,  including  medical  reports,  depositions  and  documents \nproperly  before  the  Commission,  and  having  had  an  opportunity  to  hear  the  testimony  of  the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1. The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n4, 2022 and contained in a pre-hearing order filed that same date, as well as the stipulations \nmade at the hearing, are hereby accepted as fact. \n2.  Claimant has met his burden of proof by a preponderance of the evidence that he suffered \na compensable injury on October 25, 2021, to his right lower extremity. \n3. Claimant  has  met  his  burden  of  proof  by  a  preponderance  of  the  evidence  that  he  is \nentitled to medical benefits for his right lower extremity injury that occurred on October \n25, 2021. \n4. Claimant has met his burden of proof by a preponderance of evidence that he is entitled \nto  temporary  total  disability  benefits  for  two  periods:    November  16,  2021,  through \nDecember 31, 2021, and again from May 18, 2022, through July 27, 2022. \n5. Claimant failed to meet his burden of proof by a preponderance of the evidence that he is \nentitled  to  temporary  total  disability  benefits  from  September 15, 2022,  to  a  date  to  be \ndetermined.  \n6. Respondent  has  controverted  claimant's  entitlement  to  all  benefits  after  November  1, \n2021. \n \n\nSears-H202345 \n4 \n \n \n \n FACTUAL BACKGROUND \n Prior to the hearing, claimant specified the periods of temporary total disability payments he \nwas  seeking  was  from  November  15,  2021  through  December  1,  2021;  then  May  1, 2022  through \nAugust 18, 2022; and from September 13, 2022 to a date to be determined.  The evidence revealed \nthat the second of those dates should have ended on December 1, 2021,  and claimant amended his \nclaim during the hearing without objection.   \n Claimant  made  a  motion  to  exclude  portions  of  the  background  check  performed  by \nPublicDataCheck  as  unduly  prejudicial  because  it  contained  a  criminal  background  check.    After \nhearing the testimony at the hearing, I overruled that motion, and those records were admitted as part \nof the basis for Duke terminating claimant’s employment.   \nHEARING TESTIMONY \n Claimant said that he had worked for respondent Duke Manufacturing (hereinafter “Duke”) \nfor about 90 days when he was injured on October 25, 2021. He testified that he injured his ankle \nwhile working for Duke in the state of Illinois but did not seek medical attention until he returned to \nArkansas the next week. Duke sent him to Baptist Urgent Care in Fort Smith. The doctor or nurse \npractitioner at that clinic took an x-ray, and according to claimant, he was put on light duty with no \nheavy lifting over twenty-five pounds, and was told to keep the ankle elevated. Claimant believed that \nthe doctor saw a fracture on the x-ray. Claimant was told by the doctor to follow up with his primary \ncare physician, which he did after he was terminated from Duke. \n Claimant recounted his course of treatment which included physical therapy and eventually \nsurgery on his ankle. Claimant said the surgery helped a little bit but did not completely remedy his \nankle  issues.  Claimant  developed  an  infection  at  the  surgical  site  and  was  hospitalized  to  treat  the \ninfection. At the time of the hearing, claimant said his ankle was still giving him problems and that he \n\nSears-H202345 \n5 \n \n \nwas still under the doctor’s treatment for that injury. \n Claimant  was  terminated  from  Duke  and  his  understanding  of  why  he  was  terminated  was \nbecause  he  had  a  criminal  history  and  because  of an  issue  regarding  not  calling  or  showing  up  for \nwork.\n1\n   \n Claimant testified that he went back to work on December 1, 2021 (later corrected to January \n1, 2022) at Booneville Housing Authority doing light maintenance. He was mostly sitting in a chair \npainting in apartments and doing general maintenance. His employer accommodated him having to \ntake off frequently because his ankle was swollen. Claimant stopped working at Booneville Housing \nAuthority on April 28, 2022 and was off work through August 18, 2022. At that time, he testified his \ndoctor gave him permission to try to go back to work. Claimant worked for Hudson Excavation from \nAugust 19, 2022 through September 13, 2022, but that work was extremely hard on his ankle. Claimant \ntestified that other than when he attempted to work, he was under doctor’s restrictions (the doctor’s \nrestrictions will be discussed below). Claimant said that as of the day of the hearing, additional surgery \nwas an option. He had undergone one round of steroid shots and the doctor wanted to try another. \nHe said his ankle on the date of the hearing was “sore, very, and it swells”. Claimant said he had some \nmedications for the pain but took them only when he really had to have them. \n On cross-examination, claimant was shown the x-ray report from his initial visit to a physician \nafter returning to Arkansas and saw the portion of the report that said he had no fracture.  Claimant \ntestified that he had a motorcycle accident a week after the surgery on his foot when he lost control \nin gravel and cow manure. He said he laid the bike over on the left side and did not have any injuries \nto his right ankle in that accident. Claimant was asked about filing a Form N and said he didn’t know \n \n1\n While there was much testimony about the reason for claimant’s termination, it is not relevant to the issues before \nme. As this claim involves a scheduled injury, a claimant who is terminated by the employer is not precluded from \ndisability benefits under A.C.A. § 11-9-526; Packers Sanitation Service v. Quintanilla 2017 Ark. App. 213.  \n\nSears-H202345 \n6 \n \n \nwhat that was.  He said he had never been given such a form.   \n Respondent  called  Russell  Swint,  who  is  the  executive  director  of  the  Booneville  Housing \nAuthority. Mr. Swint is responsible for the supervision of the employees of the Housing Authority. \nHis records show that claimant started working for the  Housing Authority on January 1, 2022 and \nworked until April 28, 2022. Claimant was making $12.00  an hour until the pay period of April 14, \n2022, at which time his rate of pay was $14.00 per hour. Claimant averaged thirty-two hours a week \nwhile employed with the housing authority.  \n On cross-examination, Mr. Swint said claimant did miss work periodically, but claimant was \npart-time and worked when he could. His duties included cleaning apartments, painting, and the like. \nMr. Swint was aware that claimant had a foot injury but had no knowledge of claimant struggling while \nworking for the Booneville Housing Authority.  \n On questions from the court, Mr. Swint said claimant was able to come and go as he needed \nto, and some weeks he was able to work more hours than others based on what needed to be done to \nmaintain a unit or ready an apartment for a new occupant.  \n Respondents   next   called   Kyle   Spoon,   who   was   the   project   coordinator   for   Duke \nManufacturing. Mr. Spoon was present at the job site when Mr. Sears was injured but did not see the \ninjury happen. He testified that claimant was offered medical care on the day of the injury, but claimant \nbelieved he could “walk it off”. He testified claimant had again refused medical treatment the next \nday. The following day, the crew working in Illinois started back to Fort Smith.  Upon the return to \nArkansas,  claimant  was  sent  to  an  urgent  care  facility  to  have  x-rays  done  on  his  ankle.  It  was  Mr. \nSpoon’s understanding that claimant was diagnosed with an ankle sprain, placed in a walking boot, \nand  placed  on  light  duty  for  two  weeks.    According  to  Mr.  Spoon,  Duke  accepted  and  paid  the \nexpenses for that November 1, 2021 visit to the doctor’s office. He said claimant was placed on light \n\nSears-H202345 \n7 \n \n \nduty starting November 2, 2021.  \n On cross-examination, Mr. Spoon stated that he was working the same shift with the claimant \nbut did not see the injury. He did not have any evidence either way as to whether claimant had fallen \nat work as he said.  \n Respondent submitted the deposition of Dr. Derek Urban who was the radiologist that read \nthe x-ray that was taken of claimant’s ankle on November 1. Dr. Urban verified that his report showed \nno acute fractures or dislocation. He saw that the talar dome was preserved. \n On cross-examination, Dr. Urban agreed that two radiologists can look at the same x-ray and \ncome up with two different conclusions. Dr. Urban agreed that he did not treat patients and that it \nwas up to the clinician to determine the proper course of treatment based on the information that Dr. \nUrban gave them. He agreed an MRI was generally a better diagnostic tool than an x-ray. He stated it \nwas true that a patient can have issues that don’t show up in an x-ray but do later show up in an MRI. \nHe said that ligament tears don’t show up on x-rays. \n Overall, the testimony of the witnesses at the hearing and appearing through deposition were \ncredible.  Claimant maintained that he had been told he had fractures in his ankle, and while such are \nnot recorded in the medical records, I did not feel claimant was trying to deceive me; rather, I think \nhe was simply wrong about the nature of his injury.  There was no testimony on the main issues in \nthis case which required me to determine which party was truthful or better informed. \nREVIEW OF THE EXHIBITS \n \n According  to  his  testimony,  claimant  was  first  seen  at  an  urgent  care  facility  in  Fort  Smith. \nWhile there is no record from the attending physician or nurse, a radiology report was submitted from \nthe examination on November 1, 2021. The report from Dr. Derek Urban reads as follows: \nFindings: ankle: AP, oblique, lateral views of the right ankle. No prior \nstudies. No fracture or dislocation. Talar dome preserved. Hind foot \n\nSears-H202345 \n8 \n \n \ndegenerative  changes.  Calcaneal  enthesophyte  at  the  insertion  of  the \nAchilles Tendon.  \n \nImpression: No ankle fracture or dislocation. \n \n The next reports were from River Valley Primary Care Services where claimant was seen by \nDr. Michael Patrick Fitzgerald on December 7, 2021. Dr. Fitzgerald had an initial assessment of “ankle \nimpingement syndrome, right.” Dr. Fitzgerald referred claimant to an orthopedic doctor, but claimant \nwas  next  seen  by  a  podiatrist,  Dr.  Spencer  Mortensen.  Dr.  Mortensen  ordered  an  MRI  which  was \nperformed  on  January  20,  2022.  The  impression  of  the  MRI  was “no  acute  osseous  abnormality. \nChronic tear of the interior talofibular ligament.” \n Following the MRI, Dr. Mortensen ordered a course of physical therapy for claimant which \nwas  unsuccessful.  On  May  18,  2022,  Dr.  Mortensen  performed  surgery,  with  this  post-operative \ndiagnosis: \n 1.  Chronic lateral ankle instability with torn ATFL right ankle. \n 2.  Longitudinal tear of the peroneus longus tendon right ankle. \n 3.  Tenosynovitis of the peroneus brevis tendon right ankle. \n 4.  Plantar fasciitis right foot.  \n \n Claimant developed an infection at the surgical wound site which was treated by a course of \nantibiotics. Dr. Mortensen released claimant to return to work with full activities without restrictions \non July 26, 2022. \n Respondents  submitted  several  non-medical exhibits, including its responses to claimant’s \ninterrogatories, the deposition of claimant, as well as the deposition of Dr. Derek Urban. Respondent’s \nExhibit  #9  was Duke’s employment file for claimant.  Page  twenty-five  of  that  exhibit  has  a  hand-\nwritten note that indicates claimant was terminated for “No cause/no  show  and  an  unsatisfactory \nback-ground check showing multiple felonies which goes against company policy.” \n \n \n\nSears-H202345 \n9 \n \n \nADJUDICATION \n \n The issues in this case as set out above require a determination as to whether claimant proved \nhe suffered a compensable injury on or about October 25, 2021, and if so, is he entitled to medical \nbenefits and temporary total disability.   \n1. Did claimant suffer a compensable injury on or about October 25, 2021?      \nIn order for a claimant to meet his burden of proof to receive benefits, he must show that: (1) \nan injury occurred that arose out of and in the course of his employment; (2) the injury caused internal \nor external harm to the body that required medical services or resulted in disability or death; (3) the \ninjury  is  established  by  medical  evidence  supported  by  objective  findings,  which  are  those \nfindings  which cannot come under the voluntary control of the patient; and (4) the injury was caused \nby a specific incident and is identifiable by time and place of occurrence.  Mikel v. Engineered Specialty \nPlastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997) \nI find claimant sufficiently proved all four elements, as claimant provided credible testimony \nabout when and where the injury took place to his right lower extremity, and such occurred while he \nwas working out of state for Duke. He refrained from seeking medical attention until he returned to \nArkansas  a  few  days  later.   While  the  x-rays taken on November 1, 2021 didn’t show any broken \nbones, the radiologist that read the films said an x-ray would not detect ligament damage.   The MRI \ntaken  on  January  20,  2022,  revealed  what  I  believe  had  been  there  all  along--a  torn  ATFL—thus \nproviding the objective findings of harm that required medical services.  While nothing was submitted \nfrom the Urgent Care visit of November 1, 2021 beyond the radiologist report, both claimant and Mr. \nSpoon testified that he was put on light duty after that visit.  While claimant believed he had a bone \nfracture, Mr. Spoon was under the impression that claimant had an ankle sprain; either way, the parties \nagreed that the ankle injury would affect claimant’s ability to work.   When considering all the evidence, \n\nSears-H202345 \n10 \n \n \nI am satisfied that claimant suffered a compensable injury to his right lower extremity on October 25, \n2021.    \n2.   Is claimant entitled to medical benefits? \nA  claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  medical \ntreatment is reasonable and necessary. Goyne v. Crabtree Contracting Company, 2009 Ark. App. 200, 301 \nS.W. 3d 16. The treatment by Dr. Fitzgerald and Dr. Mortensen appears to be both reasonable and \nnecessary for the injury to claimant’s right lower extremity.   \nAt the conclusion of the hearing, respondent raised a lack of notice for all treatment after the \ninitial visit to Urgent Care on November 1, 2021.  After I pointed out lack of notice was not raised in \nthe prehearing order, respondent moved to amend its pleadings to include that defense.  I denied the \nmotion at the time as untimely.  Upon further reflection and review, I reaffirm that ruling, but believe \nit was correct on the merits of the motion as well as on its timing.\n2\n  Mr. Spoon testified that claimant \nreported the injury to his employer, and the employer paid for a doctor’s visit.  \"The employee shall \nreport the injury to the employer on a form prescribed or approved by the Workers' Compensation \nCommission,\" and the employer is not responsible for benefits related to the injury \"prior to receipt \nof the employee's report of injury.\" Ark. Code Ann. § 11-9-701(a)(1). \"Failure to give the notice shall \nnot  bar  a  claim,  however,  if  the  employer  had  knowledge  of  the  injury.\"  Ark.  Code  Ann.  §  11-9-\n701(b)(1)(A). It is notice to the employer, not the insurance carrier, that is required, Baxter v. Baxter, \n2012 Ark. App. 251, 413 S.W.3d 561. Under the facts of this case, the employer was notified not later \nthan November 1, 2021, when Duke sent claimant to Urgent Care.   The way Duke handled this by \n \n2\n Ark. Code Ann. §11-9-701 (b)(2) states “Objection to failure to give notice must be made at or before the first hearing \non the claim.” A motion regarding the lack of notice made while the parties were giving closing arguments is  may \ntechnically be “at the first hearing.”  I found no cases decided by the Full Commission or the appellate courts on this \npoint, but I believe fundamental fairness dictates that a claimant needs to be made aware that lack of notice is being \nraised as a defense before the testimony has closed.   \n\nSears-H202345 \n11 \n \n \npaying the doctor’s visit itself seems to have had the effect of not informing its carrier about this claim; \nthat,  however,  is  a  matter  between  the  two  respondents  and  does  not  defeat claimant’s request for \npayment of his medical bills. \nClaimant submitted records that mentioned many physical and mental conditions that have \nnothing  to  do  with  his  ankle  injury,  and  respondent  are  not  responsible  for  any  medical  services \nrendered to claimant that do not relate to the compensable ankle injury.   \n3. Is claimant entitled to temporary total disability benefits?  \nClaimant requested three separate periods of temporary total disability benefits (TTD).   As \nhe had a scheduled injury to his right lower extremity, claimant is entitled to TTD until he reaches the \nend of his healing period or until he returned to work, whichever occurs first. Wheeler Construction Co. \nv.  Armstrong,  73  Ark.  App.  146,  41  S.W.  3d  822  (2001).     I  will  discuss  these  three  periods  in \nchronological order. \nA:  From November 15th, 2021, when claimant was terminated by Duke to January 1st, 2022, when \nclaimant  began  working  for  the  Booneville  Housing  Authority.   As  claimant  was  not  receiving \nindemnity  benefits,  I  cannot  fault  him  for  trying  to  find  work  he  was  physically  capable  of \nperforming.   He  had  not  yet  been  released  from  care  by  Dr.  Mortensen,  and  given  his  subsequent \nsurgery,  I  find  his  healing  period  had  not  ended;  however,  he  had  returned  to  work.   Claimant  is \nentitled to TTD from November 16, 2021, through December 31, 2021.  \nB:  From May 1, 2022 until August 18, 2022.  Mr. Swint testified that claimant’s last day at Booneville \nHousing Authority was April 28, 2022.  Claimant next saw Dr. Mortensen on May 5, 2022 for a surgical \nconsultation.     On  that  date,  claimant  had  already  quit working, and it may be that claimant didn’t \nthink to ask about being taken off work before surgery.  Still, there is no objective medical evidence \nthat  claimant  would  have  been  unable  to  work  at  Booneville  Housing  Authority  up  to  the  date  of \n\nSears-H202345 \n12 \n \n \nsurgery, which was May 18, 2022.   Claimant was released to full duty on July 26, 2022.  I therefore \nfind he has proven a period of TTD from May 18, 2022 through July 26, 2022.  \nC.  From September 13, 2022, to a date yet determined. Claimant testified that he went to work for \nHudson Excavation, but he was unable to do the work because of the pain in his right ankle.  He said \nhe had not worked since September 13, 2022, and was under doctor’s restrictions, but presented no \ndocumentation to that effect.  The last medical report in the record released claimant to full duty with \nno restrictions.  Claimant failed to meet his burden of proof on this portion of his TTD claim. \nORDER \n \nClaimant has met his burden of proving by a preponderance of the evidence that he suffered \na compensable injury to his right lower extremity on October 25, 2021.  \nRespondent is liable for payment of all reasonable and necessary medical services provided in \nconnection with claimant’s compensable injury. \n Claimant is entitled to temporary total disability from November 16, 2021 through December \n31, 2021, and again from May 18, 2022 through July 26, 2022.   \nClaimant failed to prove he was entitled to temporary total disability from September 13, 2022 \nto a date to be determined.  \n Respondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \n\nSears-H202345 \n13 \n \n \nAll issues not addressed herein are expressly reserved under the Act. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $1,259.45. \n IT IS SO ORDERED. \n \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":24576,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202345 JOHN W. SEARS, Employee CLAIMANT DUKE MANUFACTURING COMPANY, Employer RESPONDENT CNA INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED MARCH 9, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Arkansas. ...","outcome":"granted","outcomeKeywords":["granted:5","denied:2"],"injuryKeywords":["ankle","fracture","back","sprain"],"fetchedAt":"2026-05-19T23:09:19.352Z"},{"id":"full_commission-H203556-2023-03-08","awccNumber":"H203556","decisionDate":"2023-03-08","decisionYear":2023,"opinionType":"full_commission","claimantName":"James Barlow","employerName":"Arkansas Support Network, Inc","title":"BARLOW VS. ARKANSAS SUPPORT NETWORK, INC. AWCC# H203556 MARCH 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Barlow_James_H203556_20230308.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Barlow_James_H203556_20230308.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H203556\n \n \nJAMES E. BARLOW, EMPLOYEE                                               CLAIMANT \n \nARKANSAS SUPPORT NETWORK, INC., EMPLOYER       RESPONDENT \n \nBRIDGEFIELD EMPLOYERS INSURANCE CO., \nINSURANCE CARRIER                                                         RESPONDENT \n \n \nOPINION FILED MARCH 8, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se. \n \nRespondents represented by the HONORABLE MICHAEL E. RYBURN, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n  Claimant appeals an opinion and order of the Administrative \nLaw Judge filed November 2, 2022. In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1.  The stipulations agreed to by the parties at a pre-\nhearing conference conducted on August 31, 2022 and \ncontained in a pre-hearing order filed that same date \nare hereby accepted as fact.  \n \n2.  The claimant has failed to prove by a preponderance of \nthe evidence that he suffered a compensable injury to \nhis left shoulder on April 1, 2022. Specifically, claimant \nwas not performing “employment services” at the time \nof his injury. \n\nBarlow-H203556        2  \n \n \n \n  We have carefully conducted a de novo review of the entire \nrecord herein and it is our opinion that the Administrative Law Judge's \ndecision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed. Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n  Therefore we affirm and adopt the November 2, 2022 decision \nof the Administrative Law Judge, including all findings and conclusions \ntherein, as the decision of the Full Commission on appeal.  \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","textLength":2297,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H203556 JAMES E. BARLOW, EMPLOYEE CLAIMANT ARKANSAS SUPPORT NETWORK, INC., EMPLOYER RESPONDENT BRIDGEFIELD EMPLOYERS INSURANCE CO., INSURANCE CARRIER RESPONDENT OPINION FILED MARCH 8, 2023 Upon review before the FULL COMMISSIO...","outcome":"affirmed","outcomeKeywords":["affirmed:3","denied:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T22:29:46.514Z"},{"id":"full_commission-H104895-2023-03-08","awccNumber":"H104895","decisionDate":"2023-03-08","decisionYear":2023,"opinionType":"full_commission","claimantName":"Rachel Butler-Green","employerName":"Parkview Magnet High School/little Rock School District","title":"BUTLER-GREEN VS. PARKVIEW MAGNET HIGH SCHOOL/LITTLE ROCK SCHOOL DISTRICT AWCC# H104895 MARCH 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Butler-Green_Rachel_H104895_20230308.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Butler-Green_Rachel_H104895_20230308.pdf","fullText":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H104895\n \n \nRACHEL BUTLER-GREEN, EMPLOYEE    CLAIMANT \n \nPARKVIEW MAGNET HIGH SCHOOL/LITTLE ROCK \nSCHOOL DISTRICT, EMPLOYER                                         RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASSOCIATION WCT, \nINSURANCE CARRIER/TPA                                                 RESPONDENT \n \nOPINION FILED MARCH 8, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant appeared pro se \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n  Claimant appeals an opinion and order of the Administrative \nLaw Judge filed June 28, 2022. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission \nhas jurisdiction over this claim.  \n \n2.  I hereby accept the above-mentioned proposed \nstipulations as fact.  \n \n3.  The Claimant failed to prove by a preponderance of the \nevidence that she sustained a compensable injury to \nher right arm, neck, or right shoulder.  \n\n \nButler-Green-H104895         2  \n \n \n \n4.  The remaining issues have been rendered moot and \nnot addressed herein this Opinion. \n \n  We have carefully conducted a de novo review of the entire \nrecord herein and it is our opinion that the Administrative Law Judge's \ndecision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed. Specifically, we find from \na preponderance of the evidence that the findings of fact made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe Full Commission.  \n  Therefore, we affirm and adopt the June 28, 2022 decision of \nthe Administrative Law Judge, including all findings and conclusions \ntherein, as the decision of the Full Commission on appeal.  \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n     \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite concurs and dissents. \n  \n\n \nButler-Green-H104895         3  \n \n \nCONCURRING AND DISSENTING OPINION \n  After my de novo review of the entire record, I concur in part \nwith but must respectfully dissent in part from the majority opinion.  I concur \nwith the majority’s finding that the claimant failed to prove by a \npreponderance of the evidence that she sustained a compensable injury to \nher right arm and to her neck.  However, I must dissent from the majority \nopinion finding that the claimant failed to prove by a preponderance of the \nevidence that she sustained a compensable injury to her right shoulder. \n  For the claimant to establish a compensable injury as a result \nof a specific incident, the following requirements of Ark. Code Ann. §11-9-\n102(4)(A)(i) (Repl. 2002), must be established: (1) proof by a \npreponderance of the evidence of an injury arising out of and in the course \nof employment; (2) proof by a preponderance of the evidence that the injury \ncaused internal or external physical harm to the body which required \nmedical services or resulted in disability or death; (3) medical evidence \nsupported by objective findings, as defined in Ark. Code Ann. §11-9-102 \n(4)(D), establishing the injury; and (4) proof by a preponderance of the \nevidence that the injury was caused by a specific incident and is identifiable \nby time and place of occurrence.  Mikel v. Engineered Specialty Plastics, 56 \nArk. App. 126, 938 S.W.2d 876 (1997).  \n\n \nButler-Green-H104895         4  \n \n \n  The evidence preponderates that the claimant’s right shoulder \ninjury satisfies the requirements of compensability.  The claimant sustained \nan injury while performing employment services on March 12, 2020.  There \nwere objective findings of the injury in the form of a right shoulder superior \nlabral tear as noted in the July 1, 2020, Operative Report.  In addition, this \ninjury required medical treatment in the form of a right shoulder arthroscopic \nanterior labral repair, biceps tenotomy, subacromial decompression with \nacromioplasty, and AC joint resection. \n  The issue in this matter is whether the claimant’s right \nshoulder injury was caused by her workplace accident.   The claimant \ninitially received treatment for her injuries from Dr. Chen Wang at \nMedExpress on March 12, 2020.  The claimant presented with complaints \nof “injury to neck, injury to shoulder” and right arm pain.  The claimant also \nreported tingling in her hand.  The claimant reported that she was “shoved \nby student”.  The claimant was assessed as having “strain of muscle, fascia \nand tendon at neck level” and prescribed Tizanidine. \n  During her June 3, 2020, wellness physical at Barg Family \nClinic, the claimant reported nighttime pain in the right shoulder to Dr. \nTimothy Hodges. The claimant also indicated that the pain from her right \nshoulder radiates down her arm.   \n\n \nButler-Green-H104895         5  \n \n \n  The claimant saw Dr. Clayton Riley on June 16, 2020, with the \nchief complaint of right shoulder pain.  Dr. Riley diagnosed the claimant with \nan “impingement and possibly a rotator cuff tear” and ordered an MRI.   \n  The claimant underwent an MRI on June 26, 2020, which \nrevealed the following: \nIMPRESSION: \n1. Moderate acromioclavicular osteoarthritis. \n2. Rotator cuff tendinopathy without discrete \ntear. \n3. Possible subacromial subdeltoid bursitis. \n \n  On July 1, 2020, the claimant underwent a “right shoulder \narthroscopic anterior labral repair, biceps tenotomy, subacromial \ndecompression with acromioplasty, and AC joint resection”.  The claimant’s \npost-operative diagnoses were listed as: \n1. Right shoulder superior labral tear from           \n    anterior to posterior. \n2. Anterior labral tear. \n3. Possible posterior labral tear. \n4. Subacromial impingement. \n5. Acromioclavicular joint arthritis. \n \n  Although the claimant initially was unsure how her shoulder \ninjury occurred, the record supports a finding that she injured her right \nshoulder during the workplace incident.  The claimant complained of right \nshoulder pain during her first medical visit following the work incident which \nwas on the same day of the incident.   \n\n \nButler-Green-H104895         6  \n \n \n  Also, the mechanism of the injury correlates with the type of \ninjury the claimant suffered to her right shoulder.  The claimant described \nhow the incident occurred as follows: \nQ   Okay.  Can you tell me what happened? \n \nA ...  He kind of got out of his seat.  I \n pressed the button.  We have a button on \n the wall next to the door to call to the \n office for security.  Before security could \n arrive, he actually came to the door, and I \n was at the door, and he pushed me, \n pushed his way out of the door and \n stormed down the hallway. ... \n \nQ Okay.  So tell me a little about the \n student.  You’ve described him to me \n before, but can you describe him?  He’s \n kind of ...  Is he a big kid or ... \n \nA  He’s a very ...  He’s a football player and \n he’s very large.  I mean, he’s probably six \n three and close to three hundred pounds.  \n He’s still a student there now, a senior \n this year, and he’s aggressive.  ... \n \nQ Okay.  So will you describe for us the ... \n you said he pushed you.  Can you kind of \n describe what that motion looked like and \n how he pushed you? \n \n... \n \nA ...  So I was standing at the door like \n such.  There’s a button here, a white \n button.  I pressed the button.  My hand \n\n \nButler-Green-H104895         7  \n \n \n was on the doorknob.  He came towards \n me and the door, and he pushed to try to \n get out of the door, and he kind of \n grabbed and pulled back, which jarred \n me, and it also pulled my arm, and he \n went out of the door. \n \n  Additionally, I note that the claimant did not have right \nshoulder pain prior to her work accident.  However, within four months, she \nhad to undergo surgical interventions to repair a labral tear. \n  Clearly, there is a causal connection between the claimant’s \nwork incident and her right shoulder injury. \n  Based on the aforementioned, I find that the claimant has \nestablished by a preponderance of the evidence that she sustained a \ncompensable right shoulder injury. \n  For the foregoing reasons, I concur in part and dissent in part \nfrom the majority opinion.    \n      __________________________ \nM. Scott Willhite, Commissioner","textLength":8585,"preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H104895 RACHEL BUTLER-GREEN, EMPLOYEE CLAIMANT PARKVIEW MAGNET HIGH SCHOOL/LITTLE ROCK SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION WCT, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 8, 2023 U...","outcome":"unknown","outcomeKeywords":[],"injuryKeywords":["neck","shoulder","strain","rotator cuff","back"],"fetchedAt":"2026-05-19T22:29:46.520Z"},{"id":"alj-H003658-2023-03-08","awccNumber":"H003658","decisionDate":"2023-03-08","decisionYear":2023,"opinionType":"alj","claimantName":"Lavar Hughes","employerName":"Crouse Logging Co., Inc","title":"HUGHES VS. CROUSE LOGGING CO., INC. AWCC# H003658 MARCH 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HUGHES_LAVAR_H003658_20230308.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HUGHES_LAVAR_H003658_20230308.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H003658 \n \nLAVAR HUGHES,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nCROUSE LOGGING CO., INC., \nEMPLOYER                                                                                                         RESPONDENT \n \nPRAETORIAN INS. CO./ \nMIDWESTERN INS. ALLIANCE, LLC, \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED MARCH 8, 2023 \n \nHearing conducted on Wednesday, March 8, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe claimant, Mr. Lavar Hughes, is represented by the Honorable Philip M. Wilson, Attorney at \nLaw, Pulaski County, Arkansas. Neither the claimant nor his attorney appeared at the hearing. \n \nThe respondents were represented by the Honorable Allison Scott, Anderson, Murphy & \nHopkins, Little Rock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n     A  hearing  was  conducted  on  Wednesday,  March  8,  2023,  to  determine  whether  this  claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2022 \nLexis Replacement) and Commission Rule 099.13 (2022 Lexis Replacement). This hearing was \nrescheduled from January 31, 2023, due to inclement weather. \n     The  respondents  filed  a  motion  to  dismiss  with  the  Commission  on  November  30,  2022, \nrequesting this claim be dismissed for lack of prosecution. Pursuant to the applicable law, both the \nclaimant and his attorney were mailed a copy of the respondents’ motion to dismiss and the subject \nhearing notice in advance of the hearing. The United States Postal Service’s (USPS), First Class \nMail,  Return  Receipt  demonstrates  the  claimant  received  notice  of  the  original  hearing  date  via \n\nLavar Hughes, AWCC No. H003658 \n \n2 \n \ncertified mail on January 5, 2023. (Commission Exhibit 1). The Commission’s file indicates that \nboth  the  claimant’s  and  respondents’  attorneys  received  notice  of  the  rescheduled  February  8, \n2023, hearing date via email dated February 6, 2023. \n     The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n     Consistent  with Ark.  Code  Ann.§  11-9-702(a)(4),  as  well  as  our  court  of  appeals’  ruling  in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim at this time. \n     Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having  been  mailed due and legal  notice of both  the respondents’ motion  and the \nsubject hearing date (both the original date and the rescheduled hearing date), the claimant \nneither inquired concerning or responded to the motion in any way; and he did not appear, \nnor cause anyone to appear on his behalf,  at the subject hearing. Therefore, the claimant \nhas waived his right to a hearing on the respondents’ motion to dismiss without prejudice. \n \n3. The claimant has to date failed and/or refused to request a hearing, and he has failed \nand/or refused to take any action(s) to prosecute his claim. \n \n4. Therefore, the respondents’ motion to  dismiss  without  prejudice  filed  on  November  30, \n2022, is GRANTED; and this claim hereby is dismissed without prejudice to its refiling \npursuant to the deadlines prescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and \nCommission Rule 099.13. \n\nLavar Hughes, AWCC No. H003658 \n \n3 \n \n \n     This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf, from refiling the claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n     The respondents hereby are ordered to pay the court reporter’s invoice within twenty (20) \ndays of their receipt thereof. \n     IT IS SO ORDERED. \n                                                                     \n____________________________                                                                      \n                                                                        Mike Pickens \n                                                                         Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5315,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H003658 LAVAR HUGHES, EMPLOYEE CLAIMANT CROUSE LOGGING CO., INC., EMPLOYER RESPONDENT PRAETORIAN INS. CO./ MIDWESTERN INS. ALLIANCE, LLC, CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED MARCH 8, 2023 Hearing conducted on Wednesda...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:09:17.167Z"},{"id":"alj-H005785-2023-03-07","awccNumber":"H005785","decisionDate":"2023-03-07","decisionYear":2023,"opinionType":"alj","claimantName":"Donna Geels","employerName":"Friendship Community Care, Inc","title":"GEELS VS. FRIENDSHIP COMMUNITY CARE, INC. AWCC# H005785 MARCH 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GEELS_DONNA_H005785_20230307.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GEELS_DONNA_H005785_20230307.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H005785 \n \nDONNA GEELS, Employee CLAIMANT \n \nFRIENDSHIP COMMUNITY CARE, INC., Employer RESPONDENT \n \nATA WC TRUST, Carrier RESPONDENT \n \n \n \n OPINION FILED MARCH 7, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Russellville,  Pope \nCounty, Arkansas. \n \nClaimant unrepresented and appearing PRO SE. \n \nRespondents represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On December 8, 2022, the above captioned  claim came on for a hearing at  Russellville, \nArkansas.      A  pre-hearing  conference  was  conducted  on  November  29,  2022,  and  an  Amended \nPre-hearing Order was filed on November 29, 2022.   A copy of the Pre-hearing Order has been \nmarked Commission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2.  The  relationship  of  employee-employer-carrier  existed  between  the  parties  on  August \n6, 2020. \n 3. The respondents have controverted the claim in its entirety. \n\nGeels – H005785 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $310.00  for  temporary  total  disability  benefits  and  $233.00  for  permanent  partial \ndisability benefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  a  compensable  COVID-19  illness  on  August  6,  2020, \nwhich include symptoms listed in Claimant’s Contention No. 2. \n 2. Whether Claimant is entitled to medical treatment. \n 3. Whether Claimant is entitled to temporary total disability benefits from April 5, 2022, \nto a date yet to be determined. \n 4.  Whether  Claimant  sustained  a  compensable  consequence  of  her  alleged  COVID-19 \nillness in the form of depression and anxiety. \n 5. Respondents’ entitlement to credit for short term disability benefits. \n Claimant’s contentions are: \n“1.  The  Claimant,  Donna  Geels,  contracted  COVID-19  while  on  the  job  on \nAugust 6, 2020, while working at a patient’s home in New Blaine, Arkansas. \n \n2. Despite initially accepting the Claim, the Respondents controverted this matter \nfollowing  her  diagnoses  with  post  COVID  syndrome  (specific  complications \nincluded, but are not limited to: ANA, dyspnea, and COPD). \n \n3. The Claimant contends that she is owed medical benefits and Temporary Total \nDisability Benefits from January 27, 2022, to a date yet to be determined. \n \n4. Due to the controversion of entitled benefits, the Respondents are obligated to \npay one half of the Claimant’s attorney’s fees. \n \n5. Claimant reserves the right to raise additional contentions at the hearing of this \nmatter.” \n \n Respondents’ contentions are: \n \n\nGeels – H005785 \n \n-3- \n“Respondents  contend  that  Claimant  did  not  suffer  a  compensable  injury  on  or \nabout 8/6/20. Respondents contend that Claimant’s need for medical treatment is \nnot related to a compensable injury and that her problems  predated any claimed \ninjury  or  are  personal  in  nature  and  not  associated  with  an  injury.  Respondents \nalso  contend  the  medical  documentation  does  not  support  the  need  for  medical \ntreatment or the entitlement to benefits associated with an alleged exposure.” \n \n The  claimant  in  this  matter  is  a  61-year-old  female  who  alleges  to  have  sustained  a \ncompensable  COVID  illness  on  August  6,  2020.  The  claimant  was  an  in-home  care  worker  for \nthe respondent at the time and was providing in-home patient care for  a particular client during \nthat   timeframe.   The   claimant   described   her   job   duties   during   this   timeframe   on   cross \nexamination as follows: \nQ Tell  the  Judge,  if  you  would,  just  briefly  what  your  job \nentailed there. \n \nA My  job  entails  setting  an  example  for  good  behavior. \nAssisting  in  anything  they  are  not  physically   capable  to  do. \nTransporting  them  to  doctor’s  appointments.  Taking  them  to  get \ngroceries, to get shoes. Whatever their general needs would be. \n \nQ And  at  the  time  in  question,  this  would  have  been  August \nof 2020, you were working with a Richard Bower; is that correct? \n \nA Yes, ma’am. \n \nQ All right. As far as your work with him, the things that you \njust  testified  about,  that  is  what  you  would  do  for  Mr.  Bower;  is \nthat right? \n \nA Yes, ma’am. \n \nQ He is in his ‘60s; is that correct? \n \nA Yes, ma’am. \n \nQ So  you  would  just  assist  him,  but  you  told  me  in  the \ndeposition  that  you  didn’t  have  to  do  anything  physical  with  him. \nYou didn’t have to lift him; is that right? \n \n\nGeels – H005785 \n \n-4- \nA I  didn’t  have  to  lift  him.  I  had  to  help  him  lift  objects \nbecause he can’t use one arm. \n \nQ But  mostly  it  was  helping  him  learn  to  cook  or  do  things \nlike that; is that right? \n \nA Yes, ma’am. \n \nQ He usually wore a mask prior to August 6\nth\n; is that right? \n \nA Usually. \n \nQ Okay.  And  you  told  me  in  your  deposition  that  before \nAugust 6\nth\n, you always wore your mask and you had gloves when \nyou went into his home; is that right? \n \nA Yes. \n \nQ And I assume that you would have maintained that six-foot \ndistance  that  was  recommended  during  that  time  frame,  is  that \nright? \n \nA As best I could, yes. \n \n It  is  the  claimant’s  allegation  that  the  client  she was  assisting  in  his  home  for  the \nrespondent/employer  had  out  of  town  family  visit  the  client’s  home  during  the  time  she  was \nthere.  Those  family  members  were  later  found  to  have  had  COVID.  The  claimant  alleges  that \nsince  she  was  exposed  to  COVID, she  tested  and  was  found  to  be  positive  and  restricted  from \nwork.  The  claimant  also  alleges  that  she  suffered  specific  complications  following  her  COVID \ndiagnosis including ANA, dyspnea, and COPD. \n It is the claimant’s burden to prove that she suffered a compensable COVID illness on or \nabout August 6, 2020, as she has alleged. In order to do so the claimant must prove the existence \nof objective medical evidence under Arkansas Code Annotated §11-9-102(4)(D). The claimant is \nrequired to establish the existence of an injury based on medical evidence supported by objective \n\nGeels – H005785 \n \n-5- \nmedical  findings  as  described  in  Arkansas  Code  Annotated  §  11-9-102(16)(A)(i).  Objective \nfindings cannot come under the voluntary control of the patient. \n The  claimant  in  this  matter  is  unable  to meet  her  burden.  I  find  no  positive  COVID  test \nresults  regarding  the  claimant  in  any  of  the  medical  records  submitted  into  evidence.  I  do  find \ntwo negative COVID or coronavirus tests found at Respondents Exhibit 1, page 57 and page 58, \ndated September 21, 2020, and December 14, 2020, respectively. In fact, those two negative test \nreports appear to be the only medical records submitted into evidence from the year 2020. Two \npages of medical evidence found at Claimant’s Exhibit 1, pages 1 and 2, do mention COVID. In \nfact, page 1 of Claimant’s Exhibit 1 appears to be from July 7, 2022, as a note on the bottom left \nof  that  page  indicates  that  is  the  date  of  imaging.  This  medical  record  purports  to  be  from \nCardiology Associates of North Central Arkansas located in Russellville, Arkansas. Handwritten \nin the top right corner of that same document is the name Dr. Rasool.  In the History of Present \nIllness portion of that medical record, it in part states “according to her, she had bad COVID in \n2021.” The next medical record found at Claimant’s Exhibit 1, page 2, has no area that I can find \nthat indicates when this medical record was created or when the claimant was seen. However, it \ndoes  indicate  that  the  record  is  from  Millard-Henry  Clinic  of  Russellville,  and  again,  written  in \nthe  top  right-hand  corner  is  a  name,  Dr.  Schoenberger.  That  undated  medical  record,  in  the \nHistory of Present Illness portion, in part states “she became ill with COVID two years ago, but \nwas only trated  [sic]  with oral  antibiotics.” The claimant does place into  evidence some mental \nhealth assessments which do indeed mention COVID but are not related to any testing or dates of \npositive tests for COVID or the coronavirus. The medical evidence in this matter is simply void \nof any objective medical findings that the claimant suffered COVID illness or coronavirus on or \nabout August 6, 2020, as she has alleged. While I do realize, and the claimant has pointed out in \n\nGeels – H005785 \n \n-6- \nher  brief  to  the  Commission,  that  rules  and  restrictions  were  relaxed  during  this  time  period  of \n2020,  particularly  for  front-line  workers,  and  while  the  state  of  Arkansas  participated  in  that, \nthere was never any relaxing of Arkansas Code Annotated §11-9-102 regarding the requirement \nfor  objective  findings  to  establish  the  existence  of  the  injury  that  the  claimant  alleges  here  of \nCOVID  or  the  coronavirus.  As  such,  I  find  that  the  claimant  has  failed  to  meet  her  burden  of \nproof that she suffered a compensable COVID illness on or about August 6, 2020. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe witness and to observe her demeanor, the following findings of fact  and conclusions of law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nNovember 29, 2022, and contained in an Amended Pre-hearing Order filed November 29, 2022, \nare hereby accepted as fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \na compensable COVID-19 illness on or about August  6, 2020, which included symptoms listed \nin Claimant’s Contention No. 2. \n 3. The claimant has failed to prove her entitlement to medical treatment. \n 4.  The  claimant  has  failed  to  prove  her  entitlement  to  temporary  total  disability  benefits \nfrom April 5, 2022, to a date yet to be determined.  \n 5.  The  claimant  has  failed  to  prove  she  sustained  any  compensable  consequence  of  her \nalleged COVID-19 illness in the form of depression and anxiety. \n\nGeels – H005785 \n \n-7- \n 6. The  respondent’s request for a  credit  for short-term disability is moot as the claimant \nfailed to prove her alleged illness compensable.  \n ORDER \n Pursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":11157,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H005785 DONNA GEELS, Employee CLAIMANT FRIENDSHIP COMMUNITY CARE, INC., Employer RESPONDENT ATA WC TRUST, Carrier RESPONDENT OPINION FILED MARCH 7, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope County, Arkansas. Claimant u...","outcome":"denied","outcomeKeywords":["denied:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:09:12.958Z"},{"id":"alj-H104386-2023-03-07","awccNumber":"H104386","decisionDate":"2023-03-07","decisionYear":2023,"opinionType":"alj","claimantName":"Betty Johnson","employerName":"Vista Outdoor, Inc","title":"JOHNSON VS. VISTA OUTDOOR, INC. AWCC# H104386 MARCH 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JOHNSON_BETTY_H104386_20230307.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_BETTY_H104386_20230307.pdf","fullText":"1 \n \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H104386 \n \nBETTY J. JOHNSON,   \nEMPLOYEE                                                  CLAIMANT \n \nVISTA OUTDOOR, INC.,   \nEMPLOYER                                                RESPONDENT \n \nXL INS. AMERICA/GALLAGHER \nBASSETT SERVICES, INC.,   \nINSURANCE CARRIER/TPA                                                                    RESPONDENT \n \n \nOPINION AND ORDER FILED MARCH 7, 2023 \n \nHearing  on  December  7,  2022,  before  Administrative  Law  Judge  (ALJ)  Mike  Pickens  in  Little \nRock, Pulaski County, Arkansas.   \n \nThe claimant was represented by the Honorable Daniel A. Webb, Webb Law Firm, Little Rock, \nPulaski County, Arkansas.   \n \nThe respondents were represented by the Honorable Guy Alton Wade, Friday, Eldredge & Clark, \nLittle Rock, Pulaski County, Arkansas. \n \n \nINTRODUCTION \n     The parties agreed to the following stipulations, which they affirmed on the record at the \nhearing: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  at  all  relevant  times \nincluding May 14, 2021, when the claimant alleges her work duties were “rapid and \nrepetitive” in nature and culminated in a “gradual-onset” “compensable injury” to \nher left wrist and/or left hand. \n \n3.   The claimant’s average weekly wage (AWW) at the time of her alleged injury(ies) \nwas $1,045, entitling the claimant to weekly indemnity rates of $697 for temporary \ntotal disability (TTD), and $523 for permanent partial disability (PPD) benefits, if \n\nBetty, Johnson, AWCC No. H104386 \n \n \nher claim is deemed compensable. \n \n4. The respondents controvert this claim in its entirety. \n \n \n5. The  parties  specifically  reserve  any  and  all  other  issues  for  future  determination \nand/or hearing. \n \n(Commission Exhibit 1 at 2; Hearing Transcript at 5). Pursuant to the parties’ mutual agreement \nthe issues litigated at the hearing were:     \n1. Whether the claimant sustained a “compensable” gradual-onset injury to her left \nwrist and/or left hand within the meaning of the Arkansas Workers’ \nCompensation Act (the Act), which culminated in a period of TTD beginning \nMay 14, 2021, through a date yet to be determined. \n \n2. If the claimant’s alleged injury is deemed compensable, the extent to which she is \nentitled to medical and TTD benefits. \n \n3. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n4. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination. \n \n(Comms’n Ex. 1 at 2; T. at 7).    \n The  claimant  contends  she  suffered  a  gradual  onset  compensable  injury  to  her  left  wrist \nand/or hand as a result of her “rapid and repetitive” job duties at the respondent-employer, Vista \nOutdoor, Inc. (Vista Outdoor, formerly Remington Arms). She is entitled to payment of any and \nall related, reasonably necessary medical expenses; TTD benefits from May 14, 2021, through a \ndate yet to be determined; and a controverted attorney’s fee. The  claimant  specifically  reserves \nany and all other issues for future litigation and/or determination. (Comms’n Ex. 1 at 2-3; T. at 7; \n109-112; 112-115). \n The respondents contend the claimant cannot meet her burden of proof pursuant to the Act, \n\nBetty, Johnson, AWCC No. H104386 \n \n \nas she did not sustain a “compensable” gradual onset injury to her left wrist and/or hand within the \ncourse  and  scope  of  her  employment  at  Vista  Outdoor.  Consequently,  the  respondents  contend \nthey are not responsible for the payment of any medical and/or TTD benefits, or to a controverted \nattorney’s fee. Alternatively, the respondents contend that pursuant to Ark. Code Ann. Section 11-\n9-411 (2022 Lexis Replacement), if the claimant’s alleged injury is deemed compensable they are \nentitled to a dollar-for-dollar offset/credit against any TTD benefits the Commission awards the \nclaimant in an amount equal to the amount of short-term disability (STD) benefits for which the \nclaimant applied and drew. The respondents specifically reserve any and all other issues for future \nlitigation and/or determination. (Comms’n Ex. 1 at 3; T. at 6-7). \n \nSTATEMENT OF THE CASE \nThe claimant, Ms. Betty Johnson (the claimant), is 61 years old. At the time of her alleged \ncompensable injury in January of 2021 the claimant was working at Vista Outdoor, where she has \nworked  for  the  last  16  years.  She  worked  on  an  assembly-line-type  operation  as  a  plate  loader \nwhere she was involved in manufacturing various calibers of pistol ammunition. A more detailed \ndescription of the claimant’s job duties is set forth on pages 17-68  and  70-81  of  the  hearing \ntranscript.   \nFive (5) of the claimant’s seven (7) alternating job duties required her to “flip” metal plates \nof varying weights containing various caliber bullets approximately ten (10) times per minute for \none (1) hour at a time. (T. 29; 66-68; 83-88). This metal plate-flipping job was one (1) of seven \n(7) jobs the claimant performed during the course of a day, as she would alternate between this \nand  other  job  duties.  The  claimant  testified  it  was  this  metal  plate-flipping  job  that  caused  her \n\nBetty, Johnson, AWCC No. H104386 \n \n \nsymptoms and her alleged injury, and that she began having pain and numbness in her left wrist \nand hand beginning some time in January of 2021. (T. 33-34). \nThe claimant initially thought her left wrist was just sore because she had been furloughed \ndue to the COVID-19 pandemic for some seven (7) to eight (8) months before she started back to \nwork  in  January 2021.  The  claimant’s  left  wrist  symptoms, the  pain  and  numbness, started \napproximately six (6) to seven (7) days, or a couple of weeks, after she returned from the COVID-\n19 furlough, and began getting progressively worse over the next few months up to May 14, 2021, \nwhen she was unable to perform her job duties. The claimant admitted she had problems with her \nright wrist in the past and had undergone a carpal tunnel release surgery on right left wrist, but that \nthat  her  left  wrist  had  been  doing  well  up  until  she  returned  back  to  work  at  Vista  Outdoor  in \nJanuary 2021 after the COVID-19 furlough. The claimant also admitted she had a past injury at \nLand O’ Frost, as well as a past injury to her right hand at Remington in 2017 (the predecessor \ncompany of Vista Outdoor) when she tripped and fell and caught herself with her right hand. She \nalso had trigger thumb on her right hand in 2014. The claimant also has been diagnosed with reflex \nsympathetic dystrophy (RSD) in her right arm as a result of her 2017 work-related injury. (T. 33-\n34; 50-53). \nThe claimant testified that her left wrist pain and numbness continued to get worse between \nJanuary 2021 and May 2021. She first underwent conservative treatment for her symptoms, but \nwhen they did not improve she presented herself for medical treatment which ultimately resulted \nin Dr. Brian Norton diagnosing her with de Quervain’s syndrome, also known as de Quervain’s \ntenosynovitis.  The  claimant  underwent  surgery  on  her  left  wrist,  and  returned  to  work  at  Vista \nOutdoor at a new job that does not involve rapid-repetitive motion, or to utilize her wrists in a way \n\nBetty, Johnson, AWCC No. H104386 \n \n \nthat causes her pain. She testified she has been doing well at her new job, and not experiencing the \npre-alleged injury symptoms. (Claimant’s Exhibit 1 at 1-41; Respondents’ Exhibit 1 at 1-22; T. \n44-50). \nMr. Carl Joseph Guthrie, the claimant’s supervisor, testified concerning the claimant’s job \nduties, and his testimony was not significantly different from the claimant’s description of her job \nduties. (T. 69-92). Ms. Donna Hendricks, a licensed practical nurse (LPN) and the company nurse, \nalso testified on the respondents’ behalf. Ms. Hendricks testified the claimant’s job duties were \nnot a “fast-paced” type job, and also that the claimant had been diagnosed with diabetes. She also \ntestified she had no personal knowledge as to what Dr. Moore saw when he visited the plant to \nobserve the job duties the claimant performed. (T. 93-108). \nDr. Moore has opined he does not believe the claimant’s job duties are rapid and repetitive, \nor that her left wrist condition is a result of her work duties; however, he has diagnosed her with \nde Quervain’s syndrome. (RX1 at 18-22). Dr. Norton, the claimant’s treating orthopedic surgeon, \nhas opined to the contrary. (CX1 at 1).                     \n DISCUSSION \nThe Burden of Proof \nWhen deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord as a whole, whether the party having the burden of proof on the issue has established it by \na  preponderance  of  the  evidence. Ark.  Code  Ann. §  11-9-704(c)(2)  (2022  Lexis  Replacement). \nThe  claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  he  is  entitled  to \nbenefits. Stone  v.  Patel, 26  Ark.  App.  54,  759  S.W.2d  579  (Ark.  App.  1998). Ark.  Code  Ann. \n\nBetty, Johnson, AWCC No. H104386 \n \n \nSection 11-9-704(c)(3) (2022 Lexis Repl.) requires the ALJ, the Commission, and the courts “shall \nstrictly construe” the Act, which also requires them to read and construe the Act in its entirety, and \nto harmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d \n899  (Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2022 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987).   \nAll claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.   \nThe  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \n\nBetty, Johnson, AWCC No. H104386 \n \n \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nCompensability: Gradual Onset Injuries \nThe respondents contend the claimant cannot meet his burden of proof pursuant to the Act \nin demonstrating he has sustained a “compensable” gradual onset injury. Ark. Code Ann. § 11-9-\n102 (4)(A)(2022 Lexis Replacement) defines a “compensable injury” which is not the result of a \nspecific incident – i.e., a gradual onset injury – as follows: \n(ii) An injury causing internal or external physical harm to the body and arising out \nof and in the course of employment if it is not caused by a specific incident or is \nnot identifiable by time and place of occurrence; if the injury is: \n \n(a) Caused  by  rapid  repetitive  motion. Carpal  tunnel  syndrome  is  specifically \ncategorized as a compensable injury falling within this definition[.]   \n \n(Emphases and Bracketed material added).   \n     The test  for determining whether  an injury is caused by rapid and repetitive motion is two \n(2)-pronged: (1) the task must be repetitive and (2) the repetitive motion must be rapid. Malone v. \nTexarkana  Public  Schools,  333  Ark.  343,  969  S.W.2d  644  (1998).  Multiple  tasks  involving \ndifferent  movements  can  be  considered  together to  satisfy  the  “repetitive  element”  of  rapid \nrepetitive motion. Id. The claimant is not required to prove rapid and repetitive motion when there \nis a diagnosis of CTS. Kildow v. Baldwin Piano & Organ, 333 Ark. 335, 969 S.W.2d 190 (1998). \n     As  with  any  and  all  compensable  injuries,  a  compensable  gradual  onset  injury  must  be \nestablished  by  medical  evidence  supported  by  objective  findings.   Ark.  Code  Ann.  §  11-9-\n102(4)(D); Ark. Code Ann. § 11-9-102(16). For a gradual onset injury caused by rapid repetitive \nmotion the resulting condition is compensable only if the alleged compensable injury is the “major \n\nBetty Johnson, AWCC No. H104386 \n \n8 \n \ncause” of the disability or need for treatment. Ark. Code Ann. § 11-9-102(4)(E)(ii); Medlin v. Wal-\nMart Stores, Inc., 64 Ark. App. 17, 977 S.W.2d 239 (1998). \n     Pursuant to the Act, a compensable injury, whether it is from a specific incident, or is gradual \nonset, must also be established by medical evidence supported by objective findings, which the \nAct specifically defines as “those findings which cannot come under the voluntary control of the \npatient.” Ark.  Code  Ann.  §  11-9-102(4)(D); Ark.  Code  Ann. §  11-9-102(16).  Moreover –  and \nsignificant if not dispositive in this case – a gradual onset injury caused by rapid repetitive motion \nis compensable only if the alleged compensable injury is the “major cause” of the disability or need \nfor treatment. Ark. Code Ann. § 11-9-102(4)(E)(ii); Medlin v. Wal-Mart Stores, Inc., 64 Ark. App. \n17, 977 S.W.2d 239 (Ark. App. 1998).   \n     Of course, the Act specifically defines “major cause” as “more than fifty percent (50%) of \nthe cause”, and states that this major cause requirement “shall be established according to the \npreponderance of the evidence.” Ark.  Code  Ann. Section  11-9-102((14)(A)-(B). The “major \ncause” requirement  may  be  established  by  the  fact  the  claimant  was  asymptomatic  prior  to  an \nincident, and then required medical treatment after the incident. Parker v. Atlantic Research Corp., \n189 S.W.3d 449, 87 Ark. App. 145 (Ark. App. 2004). Consequently, based on the applicable law \nas applied to the facts of this case, I find the claimant has failed to meet the Act’s required burden \nof proof for the following reasons. \n     First, it should be noted the claimant has been diagnosed by both Drs. Moore and Norton as \nhaving de Quervain’s syndrome. The Merck Manual of Diagnosis and Therapy, (Merck, Sharpe \n&  Dohme,  20\nth\n  Edition  2018  at  289)  defines  de  Quervain’s  Syndrome  as,  “...stenosing \n\nBetty Johnson, AWCC No. H104386 \n \n9 \n \ntenosynovitis  of  the  short  extensor  tendon  (extensor  pollicis  brevis)  and  long  abductor  tendon \n(abductor pollicis longus) of the thumb within the first extensor compartment”, and states that the \ncondition, “usually occurs after repetitive use (especially wringing) of the wrist... .” The claimant \nhas worked at Remington, now Vista Outdoors, some 16 years. The job she was performing after \nshe  returned  from  COVID-19  furlough  is  wrist  intensive,  involves  the  lifting  and  flipping  of \nrelatively  heavy  weight,  at  what  certainly  appears  to  be  a  relatively  rapid,  repetitive  pace. \nFurthermore, there exists no medical or other credible evidence of record that would explain the \ncause of the claimant’s diagnosed de Quervain’s syndrome in her left wrist.   \n     Second,  based  on  the  preponderance  of  the  credible  medical  and  other  evidence  of  record \nthere exists no other credible explanation as to the cause of the claimant’s de Quervain’s syndrome \nother than her job duties at Vista Outdoor. Moreover, based on the specific facts of this case I find \nthat Dr. Norton, the claimant’s treating orthopedic surgeon, is in a better position given the totality \nof  the  circumstances  to  render  the  most  credible  opinion  concerning  causation.  Dr.  Norton  has \nsuccinctly and clearly opined that, “Patient did repetitive lifting/gripping/flipping w left hand \nwhich led to the development of de Quervains.” (CX1 at 1). While one might nit-pick and argue \nthat Dr. Norton did not specifically state the claimant’s job duties were “rapid” in nature, I am of \nthe  opinion  there  exists  other  evidence  of  record  that  may  lead  a  fact-finder  to  determine  the \nclaimant’s subject job duties were in fact “rapid” in nature.  \n     Third, and finally, just as a matter of common sense and fundamental fairness, there appears \nto be no disagreement between Drs. Norton and Moore that the claimant’s diagnosed condition is \nde Quervain’s syndrome, which is caused by repetitive motion activities. To find, based on the \n\nBetty Johnson, AWCC No. H104386 \n \n10 \n \ntotality of the credible medical and other evidence of record herein, that the claimant’s rapid and \nrepetitive job duties at Vista Outdoor – especially in the absence of other credible evidence to the \ncontrary – were not the “major cause” of the claimant’s condition and need for medical treatment \nwould  constitute  sheer  speculation  and  conjecture.  Since  sheer  speculation  and  conjecture  are \ninsufficient to support a claim for compensation, it logically follows they cannot be used to deny \na claim for compensation, as well. See, Deana, supra.      \n     Therefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The stipulations contained in the Second Amended Prehearing Order filed \nSeptember 19, 2022, are hereby accepted as facts. \n \n2. The claimant has met her burden of proof in demonstrating she sustained a gradual \nonset “compensable injury” within the Act’s meaning to her left wrist which \nculminated in disability beginning on or about May 14, 2021. \n \n3. The claimant has met her burden of proof in demonstrating the medical treatment \nshe has undergone on her left wrist, including but not limited to the surgery, is \nrelated to and reasonably necessary in light of her gradual onset compensable \ncompensable injury which culminated in disability beginning on or about May 14, \n2021.   \n \n4. The claimant has met her burden of proof in demonstrating she is entitled to TTD \nbenefits from May 14, 2021, until she returned to work for the respondents at a \nnew job on or about May 6, 2022. \n \n5. Pursuant to Ark. Code Ann. Section 11-9-411 (Lexis Repl. 2022) the respondents \nare entitled to a dollar-for-dollar offset/credit related to the immediately \naforementioned TTD benefits based on the total amount of STD benefits for which \nthe claimant applied and received following her compensable left wrist injury.   \n \n6. The claimant’s attorney is entitled to a fee based on the controverted TTD benefits \nfrom on or about May 14, 2021, through on or about May 6, 2022.   \n \n \n\nBetty Johnson, AWCC No. H104386 \n \n11 \n \nAWARD \n \n     The respondents are hereby directed to pay benefits in accordance with the “Findings of \nFact and Conclusions of Law” set forth above. All accrued sums shall be paid in lump sum \nwithout discount, and this award shall earn interest at the legal rate until paid pursuant to Ark. \nCode Ann. Section 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 \nS.W.2d 57 (Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d \n126 (Ark. App. 1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004).   \n     If they have not already done so, the respondents shall pay the court reporter’s invoice \nwithin ten (10) days of their receipt of this opinion and order. \n     IT IS SO ORDERED.\n                                          ____________________________________ \n                                          Mike Pickens \n                                          Administrative Law Judge","textLength":20442,"preview":"1 BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H104386 BETTY J. JOHNSON, EMPLOYEE CLAIMANT VISTA OUTDOOR, INC., EMPLOYER RESPONDENT XL INS. AMERICA/GALLAGHER BASSETT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED MARCH 7, 2023 Hearing on December 7, 2022, before Administrativ...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["repetitive","wrist","back","carpal tunnel"],"fetchedAt":"2026-05-19T23:09:15.105Z"},{"id":"alj-H206758-2023-03-06","awccNumber":"H206758","decisionDate":"2023-03-06","decisionYear":2023,"opinionType":"alj","claimantName":"Christopher Berg","employerName":"Wear Construction Mgmt., Inc","title":"BERG VS. WEAR CONSTRUCTION MGMT., INC. AWCC# H206758 MARCH 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BERG_CHRISTOPHER_H206758_20230306.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BERG_CHRISTOPHER_H206758_20230306.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H206758 \n \nCHRISTOPHER BERG, Employee                                                                 CLAIMANT \n \nWEAR CONSTRUCTION MGMT., INC.,  Employer                                 RESPONDENT                         \n \nCINCINNATI INSURANCE CO., Carrier                                                   RESPONDENT                        \n \n \n \n OPINION FILED MARCH 6, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney, Little Rock, Arkansas. \n \n \n \n STATEMENT OF THE CASE \n  \n On  February  13,  2023,  the  above  captioned  claim  came  on  for  hearing  at Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on November 30, 2022 and \na  pre-hearing  order  was  filed  on  that  same date.   A  copy  of  the  pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The employee/employer/carrier  relationship  existed among  the  parties at all \nrelevant times. \n 3.      The  claimant  was  earning  sufficient  wages  to  entitle  him  to  the  maximum \n\nBerg – H206758 \n \n2 \n \ncompensation rates. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s right knee on August 12, 2022. \n2.     Reasonable and necessary medical treatment. \n3.     Temporary total disability benefits from August 12, 2022 through a date yet  \nto be determined.  \n4.      Attorney fee. \nAt  the time of the hearing claimant clarified that he is requesting temporary total  \ndisability benefits from September 12, 2022 through November 28, 2022.  \n The claimant contends he sustained a compensable right knee injury on August \n12,  2022  while  working  for  the  respondent  in  Fort  Smith,  Arkansas.    Despite  objective \nevidence of injury, respondents denied compensability of claimant’s injury.  Claimant \ncontends  he  is  owed  medical  benefits  and  temporary  total  disability  benefits  from \nSeptember 12, 2022 through November 28, 2022.  Due to controversion of these benefits, \nrespondents  are  obligated  to  pay  one-half of the claimant’s attorney’s fee.  Claimant \nreserves all other issues. \nThe respondents contend the claimant did not sustain a compensable injury to his \nright knee on August 12, 2022 or at any other time. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\nBerg – H206758 \n \n3 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non November 30,  2022  and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted as fact. \n 2.    Claimant has failed to meet his burden of proving by a preponderance of the \nevidence that he suffered a compensable injury to his right knee on August 12, 2022.   \n \n FACTUAL BACKGROUND \n The  claimant  is  a  49-year-old  man  with  a  tenth  grade  education.    He  has \nundergone apprenticeships in tile setting and as a marble mason.  He considers himself \na tile mason by trade and has performed that type of work since the early 1990s.   \n Claimant  worked  for  respondent  as  a  journeyman  carpenter,  primarily  installing \ngrid ceilings.  Claimant testified that his job required climbing ladders, kneeling, and being \non his feet a majority of the day.  He believes he began working for respondent in August \n2022 and continued working there until November 2022.   \n Claimant testified that on August 12, 2022, he was working for respondent at a job \nat  Alma  High  School.    Respondent  had  on  site  a  storage  trailer  which  claimant  was \nstanding in on August 12, 2022 when: \n  I was stepping out of the trailer and I stepped on a screw. \n  I overextended the ankle, my knee, and it made a funny \n  sound and it got really warm pretty darn quick. \n \n \n Claimant submitted into evidence a photo which he testified was taken the day of \nthe incident.  (Cl. Ex. 2, pg. 1)  Claimant testified that some time later that day he reported \nthe injury to his supervisor, Dahl Dunavant.  Claimant stated that he finished his work day \n\nBerg – H206758 \n \n4 \n \nand that evening his knee was painful and swollen.  Claimant testified that he continued \nto work after the incident because he needed money and could tolerate some pain.  He \nstated that he performed his job at a slower pace and that his knee was uncomfortable, \nsore, and swollen.   \n On  August  28,  2022,  claimant  sought  medical  treatment  at  Baptist  Emergency \nRoom complaining of right knee pain.  Claimant attributed his problems to an incident at \nwork two weeks earlier.  Claimant was diagnosed with a sprain of the medial collateral \nligament and instructed to receive follow-up care with an orthopedic surgeon.   \n On  September  14,  2022,  claimant  was  evaluated  by  Lacey  Kennon,  APRN,  at \nBaptist Orthopedics Clinic.  She took claimant off work until claimant underwent an MRI \nscan  and  an  evaluation  by  Dr.  Tobey,  orthopedic  surgeon.    Claimant’s  MRI  was \nperformed on September 27, 2022, and was read as showing a tear of the posterior horn \nof the medial meniscus. \n On  September  29,  2022,  claimant  was  evaluated  by  Dr.  Tobey  who  noted the \nmedial meniscus tear and recommended surgery.  Dr. Tobey performed surgery to repair \nthe meniscus on October 6, 2022.  After the surgery claimant underwent physical therapy \nand was released to return to work by Dr. Tobey on November 3, 2022.  Claimant testified \nthat he was laid off by respondent and after his release he went to work for Mars Pet Care \non November 28, 2022 operating a forklift and working in a mixing room. \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis  right  knee  on  August  12,  2022.    He  requests  payment  of  medical,  temporary  total \ndisability benefits, and a controverted attorney fee. \n  \n\nBerg – H206758 \n \n5 \n \nADJUDICATION \n Claimant  contends  that  he  suffered  a  compensable  injury  to  his  right  knee  on \nAugust  12,  2022.      His  claim  is  for  a  specific  injury,  identifiable  by  time  and  place  of \noccurrence.   In order to prove a compensable injury as the result of a specific incident \nthat  is  identifiable  by  time  and  place  of  occurrence,  a  claimant  must  establish  by  a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to meet his burden of proving by a \npreponderance of the evidence that he suffered a compensable injury. \n Initially, I do not find claimant’s testimony particularly credible.  Claimant testified \nthat he had not had any issues with his right knee prior to August 12, 2022.   \n  Q Now, prior to 8/12 of  ’22, did  you have any issues \n  with your right knee? \n \nA Yes and no. \n \nQ Okay.  What do you mean by yes and no? \n \nA My legs were - - my ankles were swollen.  I went \nto the doctors. \n \nQ Okay.  So my question for you is did you have any \nissues with your right knee?  You said your ankles. \n \n\nBerg – H206758 \n \n6 \n \nA No. \n \n \n However, the medical records indicate that claimant sought medical treatment for \nhis right leg on June 14, 2022, from Dr. Aaron White,  his primary care physician.  Included \nin those complaints was right knee pain. \n  He is here today for right leg and knee pain and \n  swelling.  He states he lays tile and is frequently \n  on his knees.  His knee swelled up and was \n  tender to touch but has since improved. \n  (Emphasis added.) \n \n \n While claimant testified that he sought medical treatment on that day because he \nwas  concerned  that  he  might  have  diabetes,  the  record  from  Dr.  White  clearly  reflects \nthat  claimant was complaining of right knee pain and Dr. White’s diagnosis included:  \n“Acute pain of right knee.”  Thus, I do not find claimant’s testimony that he did not have \nright knee pain prior to August 12, 2022 to be credible.   \n Claimant  also  testified  that  he  reported  the  injury  on  the  day  it  occurred  to  his \nsupervisor, Dahl Dunavant.  However, Dunavant testified that while claimant did mention \nthat he was suffering from knee pain on some unknown date, the claimant never indicated \nthat he had injured himself or that he needed medical attention.  Dunavant stated that if \nclaimant  had  indicated  that  he  had  injured  himself  at  work  he  would  have  contacted \nrespondent’s office manager, Lee  Ann Vicary, and asked where he should take claimant \nfor treatment.   \n Claimant also testified at the hearing that this conversation regarding the reporting \nof  his  accident  occurred  on  August  12,  2022,  the  date  of  the  injury.    However,  at his \ndeposition, claimant testified that the conversation occurred approximately one week after \n\nBerg – H206758 \n \n7 \n \nthe accident. \n \n  Q You said you reported it to your supervisor \n  because that is company policy; correct? \n \n  A The day it happened, yes. \n \n  Q And then I asked you again, “Did you tell \n  anybody you needed treatment for an injury?” \n  And what was your response?  “Did you tell \n  anybody you needed treatment for an injury? \n  What was your response here starting on Line \n  21? \n \n  A What was my answer? \n \n  Q Yes, right there “A”. \n \n  A “I went to Dahl and told him that if it gets to \n  a point to where I just” can’t bear it - - “you now, I \n  just – I need to go to the hospital.  I am going to.” \n  That is  correct. \n \n  Q All right.  I asked you, “When did you do that?” \n  And what was your response? \n \n  A That conversation was the same day - - \n \n  Q I asked you, “When did you do that?”  And  \n  what was your response? \n \n  A It was Friday, the day of the incident. \n \n  Q I am going to read here.  It says, “I think it \n  was from Friday.  It was like a week.  I think about \n  a week, maybe.” \n \n   So in your deposition, you tell me you talked \n  to Dahl a week after this; correct? \n \n  A No, ma’am. \n \n  Q That is not what your said in your deposition? \n \n\nBerg – H206758 \n \n8 \n \n  A My week was a week or so when I went to the \n  emergency room, not when I reported the incident. \n \n  Q That wasn’t my question; was it? \n \n  A I am confused. \n \n \n Thus, claimant has given conflicting testimony regarding the date he mentioned  \n \nany complaints to Dunavant.   \n \n Finally,  while  claimant  contends  that  he  suffered  this  compensable  injury  to  his \nright knee on August 12, 2022, I note that he did not seek any medical treatment for his \ncondition until August 28, 2022, more than two weeks later. \n In  summary,  claimant  has  the  burden  of  proving  by  a  preponderance  of  the \nevidence that he suffered a compensable injury to his right knee on August 12, 2022.  At \nthe  hearing,  claimant  denied  having  any  prior  right  knee  pain.    However,  the  medical \nrecords indicate that claimant had sought medical treatment for right knee pain from his \nprimary  care  physician  on  June  14,  2022.    In  addition,  while  claimant  testified  that  he \nreported  the  injury  to  his  supervisor,  Dahl  Dunavant,  Dunavant  testified  that  while \nclaimant  did  indicate  that  his  knee  was  hurting,  claimant  never  indicated  that  he  had \ninjured himself at work or that he needed medical attention.  Furthermore, with respect to \nthis conversation, claimant testified at the hearing that it occurred on the date of the injury, \nAugust 12; however, at his deposition, claimant testified that this conversation occurred \napproximately a week later.   Finally, claimant did not seek any medical treatment for any \ncomplaints of right knee pain until August 28, 2022, more than two weeks later.  Given \nthis  evidence,  I  simply  find that  claimant  has  failed  to meet his  burden of proving  by a \npreponderance of the evidence that he suffered a compensable injury to his right knee on \n\nBerg – H206758 \n \n9 \n \nAugust 12, 2022.   \nORDER \n Claimant  has  failed  to  meet  his  burden  of  proving  by  a  preponderance of  the \nevidence  that  he  suffered  a  compensable  injury  to  his  right  knee  on  August  12,  2022.  \nTherefore, his claim for compensation benefits is hereby denied and dismissed. \n Respondents are responsible for the court reporter’s charges for preparation of the \nhearing transcript in the amount of $708.45. \n IT IS SO ORDERED. \n \n       ________________________________ \n        GREGORY K. STEWART \n        ADMINISTRATIVE LAW JUDGE","textLength":13679,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206758 CHRISTOPHER BERG, Employee CLAIMANT WEAR CONSTRUCTION MGMT., INC., Employer RESPONDENT CINCINNATI INSURANCE CO., Carrier RESPONDENT OPINION FILED MARCH 6, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian Count...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:2"],"injuryKeywords":["knee","ankle","sprain"],"fetchedAt":"2026-05-19T23:09:08.760Z"},{"id":"alj-H200996-2023-03-06","awccNumber":"H200996","decisionDate":"2023-03-06","decisionYear":2023,"opinionType":"alj","claimantName":"Tracey Grisham","employerName":"Dwight Elementary School","title":"GRISHAM VS. DWIGHT ELEMENTARY SCHOOL AWCC# H200996 MARCH 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GRISHAM_TRACEY_H200996_20230306.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GRISHAM_TRACEY_H200996_20230306.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H200996 \n \nTRACEY GRISHAM, Employee                                                                      CLAIMANT \n \nDWIGHT ELEMENTARY SCHOOL, Employer                                        RESPONDENT                          \n \nARKANSAS SCHOOL BOARDS ASSOCIATION, Carrier                       \nRESPONDENT                                                                             \n \n \n \n OPINION/ORDER FILED MARCH 6, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n OPINION/ORDER \n \n This  case  comes  on  for  review  following  a  hearing  on  respondent’s  Motion  to \nDismiss.   \n Claimant  suffered a  compensable  injury to her  right  ankle  on  October 26,  2021.  \nThis injury was accepted by respondent as compensable and medical benefits were paid.  \nOn  February  1,  2022,  claimant  filed  Form  AR-C  requesting  various  compensation \nbenefits.  Despite filing the AR-C, no further action was taken by claimant to pursue her \nclaim.  On December 7, 2022, respondent requested dismissal of the claim. \n Following    the    respondent’s    request,    claimant    completed    Commission \ninterrogatories agreeing to dismissal of the claim, but did not have them notarized despite \nbeing given additional time to do so. \n\nGrisham – H200996 \n \n2 \n \n Consequently,  a  hearing  was  scheduled  for  respondent’s  Motion  to  Dismiss  for \nFebruary 27, 2023.  Notice of the hearing was sent to claimant by certified mail and was \nreturned as “Unclaimed.”  Claimant did not appear at the hearing and has made no further \nresponse to the respondent’s request. \n After my review of the respondent’s motion, the claimant’s response thereto, and \nall  other  matters  properly  before  the  Commission,  I  find  that  respondent’s  motion  to \ndismiss  this  claim  should  be  and  hereby  is  granted.  This  dismissal  is  pursuant  to \nCommission Rule 099.13 and it is without prejudice. \n IT IS SO ORDERED. \n \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":2323,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H200996 TRACEY GRISHAM, Employee CLAIMANT DWIGHT ELEMENTARY SCHOOL, Employer RESPONDENT ARKANSAS SCHOOL BOARDS ASSOCIATION, Carrier RESPONDENT OPINION/ORDER FILED MARCH 6, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebast...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T23:09:10.894Z"},{"id":"alj-G906350-2023-03-02","awccNumber":"G906350","decisionDate":"2023-03-02","decisionYear":2023,"opinionType":"alj","claimantName":"Laura Easley","employerName":"College Hill Middle School","title":"EASLEY VS. COLLEGE HILL MIDDLE SCHOOL. AWCC# G906350 MARCH 2, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/EASLEY_LAURA_G906350_20230302.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"EASLEY_LAURA_G906350_20230302.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G906350 \n \nLAURA D. EASLEY,   \nEMPLOYEE                                                  CLAIMANT \n \nCOLLEGE HILL MIDDLE SCHOOL,   \nEMPLOYER                                                RESPONDENT \n \nARKANSAS SCHOOL BOARDS ASS’N \nWORKERS’ COMPENSATION TRUST/ \nARKANSAS SCHOOL BOARDS ASS’N,   \nINSURANCE CARRIER/TPA                                                                    RESPONDENT \n \n \nOPINION AND ORDER FILED MARCH 2, 2023 \n \nHearing  before  the  Arkansas  Workers’  Compensation  Commission  (the  Commission)  before \nAdministrative  Law  Judge  (ALJ)  Mike  Pickens  on  December  2,  2022,  in  Texarkana,  Miller \nCounty, Arkansas.   \n \nThe claimant was represented by the Honorable Gregory R. Giles, Moore, Giles & Matteson, LLC, \nTexarkana, Miller County, Arkansas.   \n \nThe  respondents  were  represented  by  the  Honorable  Melissa  Wood,  Worley,  Wood  &  Parrish, \nLittle Rock, Pulaski County, Arkansas. \n \nINTRODUCTION \n     In the Prehearing Order filed September 23, 2022, the parties agreed to the following \nstipulations, which they modified and then affirmed on the hearing record: \n1. The Arkansas Workers’ Compensation Commission (the Commission) has \njurisdiction over this claim. \n2. The  employer/employee/carrier-TPA  relationship  existed  at  all  relevant  times \nincluding  August  13,  2019,  when  the  claimant  sustained  compensable  injuries  to \nher right ankle, neck, and thoracic spine. \n \n3.   The claimant’s average weekly wage (AWW) was $484.92, entitling her to weekly \ncompensation rates of $323.00 for temporary total disability (TTD), and $242.00 \nfor permanent partial disability (PPD) benefits. \n \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n2 \n4. The respondents have accepted and paid a five percent (5%) permanent anatomical \nimpairment rating for the claimant’s compensable right ankle injury, as well as a \nten   percent   (10%)   to   the   body-as-a-whole   (BAW)   permanent   anatomical \nimpairment rating for her compensable neck injury.   \n \n5.        The respondents do not dispute the fact the claimant fell at home in August of 2020, \nas they paid for additional medical treatment for her right ankle and neck/cervical \nspine following this fall.   \n \n6. The respondents controvert the claimant’s alleged lower back/lumbar spine injury, \nas  well  as  her  request  for  any  additional  medical  treatment  and  additional  TTD \nbenefits other than the medical and TTD benefits they have paid to date. \n \n7. The  parties  specifically  reserve  any  and  all  other  issues  for  future  determination \nand/or hearing. \n \n(Commission Exhibit 1 at 2; Hearing Transcript at 5-7; Respondents’ Post-Hearing Brief at 1).   \n     Pursuant to the parties’ mutual agreement the issues litigated at the hearing were: \n1. Whether,  within  the  meaning of  the  Arkansas  Workers’  Compensation Act  (the \nAct),  the  claimant  sustained  a “compensable  injury”  to  her  lower  back/lumbar \nspine, either as a result of the August 13, 2019, compensable work injury, and/or \nthe admitted compensable consequence incident/fall of August 22, 2020.    \n \n2. Whether the claimant is entitled to additional TTD benefits from August 22, 2020, \nthrough  March  8,  2021;  and  from  July  13,  2022,  through  a  date  yet  to  be \ndetermined. \n \n3. Whether the claimant is entitled to the additional medical treatment Dr. Ardoin has \nrecommended  for  her  compensable  right  ankle  injury,  specifically,  a  right  ankle \nfusion; as well as whether the claimant is entitled to additional medical treatment – \nspecifically  pain  management  treatment –  for  her  cervical  and  thoracic  spine,  as \nwell as the alleged lumbar spine injury. \n        \n4. Whether the claimant’s attorney is entitled to a controverted fee on these facts. \n \n5. The parties specifically reserve any and all other issues for future litigation and/or \ndetermination.    \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n3 \n \n(Comms’n Ex. 1 at 2-3; T. at 5-12; and Claimant’s Post-Hearing Brief; Respondents’ Post-Hearing \n \nBrief). \n \nFirst, the claimant contends she sustained compensable injuries to her thoracic spine and \nlumbar spine, either immediately as a result of the initial work incident of August 13, 2019, and/or \na compensable consequence event that occurred on August 22, 2020, when she fell at home. The \nclaimant contends the additional medical treatment, specifically the right ankle fusion Dr. Ardoin \nhas  recommend,  is  related  to  and  reasonably  necessary  in  light  of  her  compensable  injury  of \nAugust 13, 2019, and/or the compensable consequence incident of August 22, 2020. She contends \nshe is not at maximum medical improvement (MMI) with regard to her compensable right ankle \ninjury  and,  therefore,  she  is  entitled  to  additional  TTD  benefits  from  August  22,  2020,  through \nMarch 8, 2021; and from July 13, 2022, through a date yet to be determined. Second, the claimant \ncontends  the  medical  treatment  she  has  received  to  date  for  her  right  ankle,  as  well  as  for  her \ncervical,  thoracic,  and  lumbar  spine  injuries  has  been  and  remains  related to  and  reasonably \nnecessary for either the August 13, 2019, work incident and/or the August 22, 2020, compensable \nconsequence  incident  and,  therefore,  the  respondents  should  be  ordered  to  pay  for  this  medical \ntreatment as well as for continuing medical treatment for all these injuries, including all the pain \nmanagement treatment the claimant has received or will receive in the future at Pain Treatment \nCenters of America. Third, the claimant contends the respondents have controverted any and all \nindemnity payments other than those they have already paid to date and, therefore, they should be \nordered to pay a controverted attorney's fee. The claimant specifically reserves any and all other \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n4 \nissues for future litigation and/or determination. (Comms’n Ex. 1 at 3-4; T. at 8-10; Cl.’s Brief).   \n The respondents contend they have paid all appropriate medical and indemnity benefits to \ndate, and they are continuing to pay all appropriate and necessary medical and indemnity benefits. \nThe  respondents  contend  further  that  Dr.  Martin  performed  an  independent  medical  evaluation \n(IME) and indicated the right ankle fusion surgery Dr. Ardoin has recommended is not reasonably \nnecessary, primarily because of the claimant's high BMI of 49. Therefore, in light of the claimant’s \nhigh BMI, the respondents contend they should not be liable for payment for the recommended \nright ankle fusion surgery. The respondents contend the additional medical treatment the claimant \nis  requesting  for  her  cervical  spine  and  her  thoracic  strain  is  not  related  to  nor  is  it  reasonably \nnecessary  for  treatment  of  her  compensable  injury  of  August  13,  2020,  or  the  compensable \nconsequence incident of August 22, 2020. The respondents contend the claimant did not sustain a \ncompensable  injury within  the  Act’s  meaning  to  her  lower  back/lumbar  spine  at  any  time. \nConcerning the claimant's requested additional/continued pain management treatment for her right \nankle,  cervical,  thoracic,  and  lumbar  spine,  the  respondents  contend  that  additional  medical \ntreatment is not related to nor is it reasonably necessary in light of any of her injuries, compensable \nor otherwise. The respondents contend the medical records do not support the claimant’s request \nfor additional TTD benefits. They contend the claimant has been assigned a 10% BAW impairment \nrating for her cervical injury, which they have accepted and paid in full; and that Dr. Martin has \nassigned  her  a  20%  BAW  impairment  rating  for  her  right  ankle  injury,  and  that the  parties  are \nworking together to clarify this rating. The respondents specifically reserve any and all other issues \nfor future litigation and/or determination. (Comms’n Ex. 1 at 4-5; T. at 10-11; Resps’. Brief). \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n5 \n     The record consists of the hearing transcript and any and all exhibits contained therein and \nattached thereto, as well as the parties’ blue-backed post-hearing briefs. \nSTATEMENT OF THE CASE \n       The claimant, Ms. Laura D. Easley (the claimant), is 52 years old. It is undisputed she fell \nat work on August 13, 2019, and sustained injuries to her right ankle, as well as to her cervical and \nthoracic spine. The respondents accepted these injuries as compensable and paid both medical and \nindemnity benefits, including surgery on the claimant’s right ankle and cervical spine.  It is also \nundisputed the claimant fell at her home on August 22, 2020, when her right ankle gave-out as she \nwas   walking.   The   respondents   paid   for   additional   medical   treatment   for   the   claimant’s \nneck/cervical spine, and right ankle following this incident. The claimant contends she injured her \nlower  back/lumbar  spine  at  this  time;  however,  in  light  of  the  claimant’s  past  history  of \nsymptomatic  lower  back/lumbar  spine  problems  the  respondents  controverted the  claimant’s \nalleged lower back/lumbar spine injury.     \n     Consequently,  the  issues  litigated  at  the  subject  hearing  and  to  be  decided  herein  are:  (1) \nwhether the claimant sustained a “compensable injury” to her lower back/lumbar spine within the \nAct’s meaning either in the initial fall at work on August 13, 2019, or as a result of the fall at her \nhome on August 22, 2020; (2) whether the right ankle fusion surgery Dr. Ardoin has recommended \nfor  the  claimant  is  related  to  and  constitutes  reasonably  necessary  medical  treatment  for  her \nadmittedly compensable right ankle injury; and, (3) whether the claimant is entitled to additional \npain management treatment for her cervical and thoracic spine and – if the alleged injury is deemed \n“compensable”  –  for  her  alleged  lower  back/lumbar  spine  injury.  Rather  than  recite  a  detailed \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n6 \nstatement and analysis of the relevant medical and other evidence here, I will do so below in the \n“Discussion” portion of this opinion and order.                 \nDISCUSSION \nBurden of Proof \nWhen deciding any issue, the ALJ and the Commission shall determine, on the basis of the \nrecord as a whole, whether the party having the burden of proof on the issue has established it by \na  preponderance  of  the  evidence. Ark.  Code  Ann. §  11-9-704(c)(2)  (2022  Lexis  Replacement). \nThe  claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  he  is  entitled  to \nbenefits. Stone  v.  Patel, 26  Ark.  App.  54,  759  S.W.2d  579  (Ark.  App.  1998). Ark.  Code  Ann. \nSection 11-9-704(c)(3) (2022 Lexis Repl.) requires the ALJ, the Commission, and the courts “shall \nstrictly construe” the Act, which also requires them to read and construe the Act in its entirety, and \nto harmonize its provisions when necessary. Farmers Coop. v. Biles, 77 Ark. App. 1, 69 S.W.2d \n899  (Ark.  App.  2002).  In  determining  whether  the  claimant  has  met  his  burden  of  proof,  the \nCommission is required to weigh the evidence impartially without giving the benefit of the doubt \nto either party. Ark. Code Ann. § 11-9-704(c)(4) (2022 Lexis Repl.); Gencorp Polymer Products \nv. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (Ark. App. 1991); Fowler v. McHenry, 22 Ark. \nApp. 196, 737 S.W.2d 633 (Ark. App. 1987).   \nAll claims for workers’ compensation benefits must be based on proof. Speculation and \nconjecture, even if plausible, cannot take the place of proof. Ark. Dep’t of Corrections v. Glover, \n35 Ark. App. 32, 812 S.W.2d 692 (Ark. App. 1991); Deana Constr. Co. v. Herndon, 264 Ark. 791, \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n7 \n595 S.W.2d 155 (1979). It is the Commission’s exclusive responsibility to determine the credibility \nof the witnesses and the weight to give their testimony. Whaley v. Hardees, 51 Ark. App. 116, 912 \nS.W.2d 14 (Ark. App. 1995). The Commission is not required to believe either a claimant’s or any \nother witness’s testimony, but may accept and translate into findings of fact those portions of the \ntestimony it deems believable. McClain v. Texaco, Inc., 29 Ark. App. 218, 780 S.W.2d 34 (Ark. \nApp. 1989); Farmers Coop. v. Biles, supra.   \nThe  Commission  has  the  duty  to  weigh  the  medical  evidence  just  as  it  does  any  other \nevidence,  and  its  resolution  of  the  medical  evidence  has  the  force  and  effect  of  a  jury  verdict. \nWilliams v. Pro Staff Temps., 336 Ark. 510, 988 S.W.2d 1 (1999). It is within the Commission’s \nprovince  to  weigh  the  totality  of  the  medical  evidence  and  to  determine  what  evidence  is  most \ncredible  given  the  totality  of  the  credible  evidence  of  record. Minnesota  Mining  &  Mfg’ing  v. \nBaker, 337 Ark. 94, 989 S.W.2d 151 (1999). \nCompensability of the Claimant’s Lower Back/Lumbar Spine Condition \n     For   any   specific-incident   injury   to   be   compensable,   the   claimant   must   prove   by   a \npreponderance of the evidence that her injury: (1) arose out of and in course of her employment; \n(2) caused internal or external harm to his body that required medical services; (3) is supported   \nby objective findings, medical evidence, establishing the alleged injury; and (4) was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence. Ark.  Code  Ann.  §  11-9-102(4); \nCossey v. Gary A. Thomas Racing Stable, 2009 Ark. App. 666, at 5, 344 S.W.3d 684, 687 (Ark. \nApp.  2009).  Of  course,  the  claimant  bears  the  burden  of  proving  the  compensable  injury  by  a \npreponderance of the credible evidence. Ark. Code Ann. § 11-9-102(4)(E)(i); and Cossey, supra.   \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n8 \n       “Objective findings” are those findings which cannot come under the voluntary control of \nthe patient. Ark. Code Ann. § 11-9-102(16)(A); Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, \nat  80  250  S.W.3d  263,  at  272  (Ark.  App.  2007).  Objective  findings, “specifically  exclude  such \nsubjective complaints or findings such pain, straight-leg-raising tests, and range-of-motion tests.” \nBurks  v.  RIC,  Inc.,  2010  Ark.  App.  862  (Ark.  App.  2010).  Objective  medical  evidence  is  not \nessential to establish a causal relationship between the work-related accident and the alleged injury \nwhere objective medical evidence exists to prove the existence and extent of the underlying injury, \nand a preponderance of other nonmedical evidence establishes a causal relationship between the \nobjective  injury  and  the  work-related  incident(s)  in  question. Flynn  v.  Southwest  Catering  Co., \n2010  Ark.  App.  766,  379  S.W.3d  670  (Ark.  App.  2010).  Moreover,  the  claimant  must  prove  a \ncausal relationship exists between her employment and the alleged injury. Wal-Mart Stores, Inc., \nv. Westbrook, 77 Ark. App. 167, 171, 72 S.W.3d 889, 892 (Ark. App. 2002) (citing McMillan v. \nU.S. Motors, 59 Ark. App. 85, 90, 953 S.W.2d 907, 909 (Ark. App. 1997)).   \n     Concerning the proof required to demonstrate the aggravation of a preexisting condition, our \nappellate courts have consistently held that since an aggravation is a new injury, a claimant must \nprove it by new objective evidence of a new injury different than the preexisting condition. Vaughn \nv. Midland School Dist., 2012 Ark. App. 344 (Ark. App. 2012) (citing Barber v. Pork Grp., Inc., \n2012 Ark. App. 138 (Ark. App. 2012); Grothaus v. Vista Health, LLC, 2011 Ark. App. 130, 382 \nS.W.3d 1 (Ark. App. 2011); Mooney v. AT & T, 2010 Ark. App. 600, 378 S.W.3d 162 (Ark. App. \n2010)  (Emphases  added.).  Where  the  only  objective  findings  present  are  consistent  with  prior \nobjective  findings or  consistent  with  a  long-term  degenerative  condition  rather  than  an  acute \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n9 \ninjury, this does not satisfy the objective findings requirement for the compensable aggravation of \na preexisting condition injury. Vaughn, 2012 Ark. App. 344, at 6 (holding that Arkansas courts \nhave interpreted the Act to require “new objective medical findings to establish a new injury when \nthe  claimant  seeks  benefits  for the  aggravation  of  a  preexisting  condition”); Barber,  supra \n(affirming the Commission’s denial of an aggravation of a preexisting condition claim where the \nMRI  findings  revealed  a  degenerative  condition,  with  no  evidence  of,  and  which  could  not  be \nexplained  by,  an  acute  injury)  (Emphases  added.).  In Mooney,  2010  Ark.  App.  600  at  4-6,  378 \nS.W.3d at 165-66 (Ark. App. 2010), the court affirmed the Commission’s decision denying a back \ninjury claim where the objective evidence of an injury - including muscle spasms, positive EMG \ntest results, and spinal stenosis revealed on an MRI  - were  all present both before and after the \ndate of the alleged aggravation injury. (Emphasis added). \n       Based  on  the  aforementioned  law  as  applied  to  the  facts  of  this  case,  the  totality  of  the \ncredible  evidence  of  record –  particularly  the  medical  evidence –  I  am  compelled  to  find  the \nclaimant has failed to meet her burden of proof in demonstrating she sustained a lower back/lumbar \nspine injury as a result of either of the two (2) incidents in question – the August 13, 2019, fall at \nwork, or the August 22, 2020 fall at home. \n         The  claimant  has  a  long-standing,  well-documented  history of symptomatic,  “severe” \nlower back/lumbar spine pain/complaints. There exists no objective medical evidence proving \nshe  sustained  a  “compensable  injury”  within  the  Act’s  meaning  as  a  result  of  either  of  the \naforementioned falls. MRIs of her lower back/lumbar spine taken both before and after the two \n(2)  falls  in  question  are  essentially  the  same,  and  reflect  only  congenital  spondylosis  other \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n10 \nevidence of degenerative disc disease (DDD). Indeed, the claimant’s medical records reflect she \nhas suffered from preexisting and “severe” lower back pain, as well as pain and numbness that \nradiated  into  both  her  legs.  The  claimant  also  admitted  under  oath  she  had  issues  with \nincontinence  starting  in  approximately  2017.  (T.  110).  The  record  does  not  reflect  objective \nfindings of an acute lower back/lumbar spine injury associated with either of the falls involved \nin  this  case;  rather  it  reflects  the  claimant  has  a  documented  history  of  symptomatic  lower \nback/lumbar spine problems. \n       A clinic note dated February 14, 2017, reveals at that time the claimant complained of \nconstant lower back pain  with a severity of 8/10.  (Claimant’s Exhibit 1 at 4). Furthermore, it \nappears one of the claimant’s treating physicians had already discussed the possibility of surgery \nwith  her  back  in  2017,  and  told  her  she  was  too  young  to  have  back  surgery  in  her  30s.  The \nmedical record reveals the claimant was complaining of “severe” lower back pain at this visit, \nas well as numbness and tingling in her buttocks and both legs. (Id.)     \nOn July 2, 2019 – approximately one (1) month before her fall at work on August 13\nth\n, \n2019 – the claimant presented herself for treatment at HealthCare Express complaining of lower \nback pain with muscle spasms. (T. 109). She testified under oath she recalled going to her doctor \naround  this  timeframe  because  her  back  was, “pinching up again,” and  her  doctor  prescribed \nsome muscle relaxers and physical therapy (PT) at that time. (T. 106). On February 1, 2021, the \nclaimant underwent an MRI based on her complants of, “low back pain, bilateral leg pain and \nbladder control issues.” (CX2 at 286). This MRI revealed multilevel lumbar spondylosis most \npronounced at L4-5 and L5-S1. (CX2 at 287). And, again, the claimant admitted under oath she \nhas a prior history of low back pain/lumbar spine problems. (T. 24; and 49-50).   \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n11 \n          The HealthCare Express records reveal the claimant suffered from acute lower back \npain  on  July  2,  2019  with  muscle  spasms  and  again  on  July  17,  2019  (CX2  at  86-87;  90-93) \nbefore the work-related fall of August 13, 2019. These records further reveal the claimant was \neven treated for some upper back pain identified as thoracic spine pain and radiculitis of her left \ncervical region on August 9, 2019 some four (4) days before the work-related fall of August 13, \n2019. (CX2 at 94-95). \n   On January 18, 2021 – after the claimant’s August 22, 2020, fall at home when her right \nankle gave-way – Dr. Wayne Bruffett reviewed the claimant’s MRI of December 28, 2020.    Dr. \nBruffett explained  the  claimant’s  MRI  revealed,  “disc  degeneration  with  some  endplate  modic \nchanges...degenerative disc disease, lumbar spine.” (CX2 at 267; 268-270). Dr. Bruffett went on \nto state, “this does not look like a work-related problem.” (CX2  at  268-270).  As  a  result  of  her \ncontinuing  lower  back/lumbar  spine  complaints  the  claimant  underwent  another  MRI  of  her \nlumbar spine on February 1, 2021 (CX2 at 286-287). This MRI revealed the, “possibility of T9-10 \ndisc protrusion with posterior element hypertrophy at T10-11\", as well as, “moderate degenerative \nchanges most pronounced at L4-5 and L5-S1 previously identified in the MRI of December 28, \n2020.” (CX2 at 286-287; 267). \n Thereafter, on May 26, 2021, Dr. Bruffett once again examined the claimant, at which time \nDr.  Bruffett  agreed  a  second  MRI  was  necessary to  assist  him  in  assessing  her  thoracic  spine \nissue/complaints.  (CX2  at  364-367).  With  regard  to  the claimant’s lumbar  spine  Dr.  Bruffett \nclearly  stated he  could,  “not  say  within  a  reasonable  degree  of  medical  certainty  that there  is \nobjective  evidence  of  injury  here  related  to  her  fall  which  would  tie  this  into  her  work  injury.” \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n12 \n(CX2 at 364-367). \n On June 16, 2021, the claimant underwent a second thoracic spine MRI. This MRI revealed \na, “small left paracentral disc protrusion at T6-7\", a, “mild disc bulge at T7-8\", a, “small central \ndisc protrusion at T9-10\", a, “bulging disc at T10-11\" and, “moderate to marked foraminal stenosis \nat T6-7 on the left and laterally at T7-8, T9-10, T10-11\". In summary, this MRI revealed, “diffuse \nspondylosis as described. There is small left paracentral disc protrusion at T6-7 and extending into \nthe left neural foramen. Mild disc bulge seen at T7-8. Small central disc protrusion is seen at T9-\n10.    Bulging disc is seen at T10-11.    There is mild spinal stenosis at T10-11. Moderate to marked \nforaminal stenosis is seen at T6-7 on the left and bilaterally at T7-8, T9-10, T10-11... .” (CX2 at \n379). \n Dr. Bruffett opined, “in part she multiple disc degeneration, she has facet arthritis, there \nare levels of disc bulging and foraminal narrowing.    I would say within a reasonable degree of \nmedical certainty that these findings are greater than 51% related to degenerative natural causes as \nopposed to any specific work injury...I have told her I cannot identify any objective evidence of \ninjury to her back.”...“welcome to have further treatments for her back under regular insurance \nwith pain management specialist for further treatment.” (CX2 at 380-382). \n After Dr. Bruffett’s aforementioned evaluation and opinion, the claimant sought a second \nopinion from Dr. Glenn Pait at the Neurosurgery Clinic at the University of Arkansas for Medical \nSciences (UAMS). After both personally examining the claimant, and reviewing both her lumbar \nand  thoracic  spine  MRI  films  Dr.  Pait concluded  in  part,  “I  would  not  recommend  surgical \nintervention for the thoracic discogenic or lumbar degenerative changes.    The discogenic changes \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n13 \nare  of  chronic  nature.”    He  instead  recommended,  “continued  consultation  and  support  with \ninterventional/chronic pain center... .” (CX2  at 433A-433C). Following both Dr. Bruffett’s and \nDr. Pait’s evaluations the claimant has remained under the care of the Pain Treatment Centers of \nAmerica,  and  undergone  additional  MRIs  and  other  diagnostic  tests  of  both  her  lumbar  and \nthoracic spine that reveal evidence of long-standing DDD. (CX2 at 443-444; 462A-462B; CX2 at \n465). Therefore,  based  on  the  claimant’s  aforementioned  well-documented  history  of  “severe” \nlower   back/lumbar   spine   pain   with   bilateral   radiculopathy,   which   includes   a   history   of \nincontinence even before either of the subject falls, it is clear the claimant has failed to meet her \nburden  of  proof  pursuant  to  the  Act  in  demonstrating  her  lower  back/lumbar  spine  condition  is \ncompensable. See, Vaughn and Moody, supra.     \nRelated, Reasonably Necessary Medical Care \nArk. Code Ann. Section 11–9–508(a) (2022 Lexis Supp.) requires  employers to provide \nmedical  services  that  are  reasonably  necessary  in  connection  with  a  compensable  injury.  A \nclaimant may be entitled to additional medical treatment after her healing period has ended if it is \ngeared toward management of symptoms associated with her compensable injury(ies). Santillan \nv. Tyson Sales & Distribution, 2011 Ark. App. 634, 386 S.W.3d 566 (Ark. App. 2011); Cossey v. \nPepsi Beverage Co., 2015 Ark. App. 265, 3, 460 S.W.3d 814, 817 (Ark. App. 2015). Of course, \nsignificantly,  in  addition  to  being  reasonably  necessary  for  treatment  of  her  compensable \ninjury(ies), the requested additional medical treatment must be causally related to the compensable \ninjury(ies).     \nIn this case, with regard to the claimant’s thoracic lower back/lumbar spine, the claimant \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n14 \nhas failed to meet her burden of proof in demonstrating she has sustained a “compensable injury” \nto  her  lower  back/lumbar  spine.  Therefore,  the  respondents  are  not  responsible  for  any  and  all \nmedical  treatment  related to  the  claimant’s  lower  back/lumbar  spine.  Dr.  Bruffett  opined  the \nclaimant  reached  MMI  on  May  15,  2021,  and  he  clearly  stated  she  did  not  need  any  further \ntreatment after this date based on her thoracic strain. (Respondents’ Exhibit 1 at 19-20). He later \nclarified that while she probably had a thoracic strain, “none of the findings noted on her thoracic \nMRI scan from June 16, 2021, can be attributed to these complaints with any reasonable degree of \nmedical  certainty  in  my  opinion...[the  findings  are]  much  more  likely  pre-existing”  and  age-\nrelated. (RX1 at 22) (Bracketed material added). I specifically find Dr. Bruffett’s opinion to be the \nmost objective and credible opinion concerning this issue, as well as the most consistent with the \nrelevant medical evidence. \nWith  regard  to  the  right  ankle  fusion  surgery  Dr.  Ardoin  has  recommended,  the \nrespondents’  position  is  that  this  proposed  additional  medical  treatment  did  not  meet pre-\ncertification and, therefore, is not reasonably necessary for the following reasons: \nThere  is  no  documentation  of  limited  range  of  motion  or  crepitus.    MRI \ndoes  not  document  arthritis.    Her  x-ray  documented  a  stable  medial  talar \nosteochondral  lesion  but  no  other  arthritic  pathology  documented  by  Dr. \nArdoin. \n \n(RX1 at 35).   \n The  respondents  also  note  that  Dr.  Robert  Martin  performed  an  IME  regarding  the \nclaimant’s right ankle on June 13, 2022, and Dr. Martin opined the claimant was at MMI as of the \ndate of his IME, and that the claimant, “would likely not experience significant relief from an ankle \narthrodesis and she is not a candidate for ankle arthroplasty based on her BMI of 49.” (RX1 at 25-\n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n15 \n28).   \n       However,  I  specifically  find  that  Dr.  Ardoin,  the  claimant’s  treating  surgeon  who  has \nalready operated on her  right ankle, is in the best position to assess her need for the right ankle \nsurgery.  Also,  having  initially  accepted  the  claimant’s  right  ankle  injury  as  compensable  and \npaying for all related, reasonably necessary medical treatment to date; and having acknowledged \nthe fact the claimant re-injured her right ankle – or at the very least fell at home as a result of her \nright ankle giving-way on August 22, 2020 – the respondents are not now in a credible position to \ndeny the claimant’s request for the additional surgery her treating surgeon recommends, and which \nmay very well give the claimant more mobility and a better quality of life. \n       Moreover, with respect to the claimant’s acknowledged/admitted compensable right ankle \ninjury, it should be noted that it took the respondents some time before they were willing to accept \nand acknowledge the compensable consequence event of August 22, 2020. This delay necessitated \nthe claimant’s having to seek additional medical treatment for the compensable right ankle injury \non  her  own  using  her  personal  health  insurance.  And  it  appears  from  the  preponderance  of  the \nevidence of record that the nature of the claimant’s symptoms rendered her unable to perform her \njob duties, and the respondents were unable to provide a light duty or other related job to her which \naccommodated  her  symptoms  and  resulting  temporary  disability,  symptoms,  the  claimant  was \nforced by the prevailing circumstances to submit a letter of resignation. (T. 47-48).     \n      Indeed, all the aforementioned circumstances resulted in it taking some seven (7) months for \nthe claimant to finally undergo an updated MRI of her right ankle, and for Dr. Ardoin to review \nthe  MRI  results,  and  recommend  the  right  ankle  fusion  surgery.  The  respondents  accepted  the \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n16 \nclaimant’s request for additional TTD benefits and began paying her as of March 9, 2021. They   \ncontinued to pay TTD benefits through July 12, 2022, and the claimant was deemed to be at MMI \nas of June 14, 2022 based upon Dr. Martin’s IME assessment. (CX2 at 447-450).   \n It should be noted the claimant’s right ankle injury is scheduled and she is entitled to TTD \nbenefits during the period of time when she remained within a healing period and was not working. \nArk.  Code  Ann.  §11-9-521(a). See, Wheeler  Corp.  Co.  vs.  Armstrong,  73  Ark.  App  146,  41 \nS.W.3rd 824 (Ark. App. 2001). See also, Fendley vs. Pea Ridge School District, 97 Ark. App. 214, \n245 S.W.3rd 676, 2006 Ark. App. LEXIS 846. \n Dr.  Ardoin,  the claimant’s treating  physician  who  performed  her  first  two  (2)  surgeries, \nclearly has tried various available treatment modalities to try and improve the stability or her right \nankle, as well as her pain. His progress notes confirm following the second surgery that he put her \nin a boot and recommended, “eight weeks of aggressive range of motion therapy”. (CX2 at 371-\n373).  Despite  Dr.  Ardoin’s  aggressive  PT,  the  therapist  noted  in  December  of  2021  that  the \nclaimant was continuing to complain of swelling and pain. And, despite the claimant’s undergoing \nice machine therapy, the therapist noted only, “minimal improvement and functional mobility and \nnoted, “minimal improvement in strength to her right hip, knee and ankle, and that she remained \nlimited secondary to pain. He noted, “she had met 0/6 of the goals established and that she was \nexperiencing,  pain  with  all  activity  and  is  limited  in  progression  of  strengthening  and  range  of \nmotion.” (CX2 at 427-429).     \n Dr. Ardoin ordered additional testing including a bone scan and MRI (CX2 at 434).    The \nbone scan noted, “increased uptake on blood pool and delayed images at the distal end of the fibula \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n17 \nand in the region of the anterior aspect of distal end of the tibia” and the differential diagnosis was, \n“trauma and arthritis”. (CX2 at 437a-437b).     \n Although the MRI did not identify a complete tear, it found, “irregularity of the peroneus \nbrevis  tendon medially inferior to  the level  of the lateral  malleous” and noted it was  “unclear” \nwhether  those  changes  were,  “postop  vs  tear”.  Also  noted,  “unstable  appearing  osteochondral \nlesion within the medial talar dome... .” (CX2 at 438)   \n Upon continuing examination, Dr. Ardoin noted the claimant to have, “continued redness \nand swelling of the ankle” (CX2  at  441).  Although  he  apparently  described  her  tendons  at  that \npoint  as  looking  like,  “garbage”,  he  recommended  trying  a, “custom  Arizona  brace”  before \nconsidering fusion surgery as the last resort. (CX2 at 441-442). \n Dr. Ardoin had the opportunity to review the opinions of Dr. Martin, who had opined the \nproposed right ankle fusion surgery was not reasonable necessary. Dr. Ardoin disagreed with Dr. \nMartin’s opinion in this regard, and I find Dr. Ardoin’s opinion should be given more weight on \nthese  facts.  Dr.  Ardoin  expressed  his  disagreement  in  his  progress  note  of  June  27,  2022.    He \nstated in part,   \nI reviewed the independent medical evaluation from Dr. Martin, however, I do feel \nthat  the  patient  would  benefits  from  a  subtalar  joint  arthrodesis  as  a  salvage \nprocedure since she cannot really wear her brace without significant pain from the \npressure applied to the scar.    I think the subtalar joint arthrodesis would allow her \nto not depend on the peroneal tendons which are chronically painful and it would \nbe a procedure that would likely stop her pain, however, she needs to lose weight \nand hopefully by allowing her to be pain free, this may help her in the long run in \nregards to her total body functions...I do think that this is greater than 51% related \nto the work injury she sustained.  I expect MMI to be 9 months post-op...Patient is \ndisabled and does not work... .   \n \n(CX2 at 452-455).     \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n18 \n     I find the claimant to be a credible and sincere witness. At the hearing she testified she would \nprefer not be left in her current state of very limited mobility and reliance upon the chair-walker \nshe used to attend the hearing. (T. 97-98). While the claimant understands there is no guarantee \nthe proposed right ankle fusion will totally relieve her pain, I find that, based on the specific facts \nof this case, the procedure is reasonably necessary taking into consideration the fact that she’s been \nsuffering since the initial accident of 2019 and would like the opportunity to regain her mobility \nand functionality. (T. 98-99). \nTherefore, for all the aforementioned reasons I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Commission has jurisdiction over this claim.   \n2. The  stipulations  contained  in  the  Prehearing  Order  Filed  September  23,  2022, \nwhich the parties modified and affirmed on the record at the hearing, hereby are \naccepted as facts.   \n \n3. The  claimant  has  failed  to  meet  her  burden  of  proof  in  demonstrating  she \nsustained a lower back/lumbar spine injury as a result of either of the August 13, \n2019,  or  the  August  22,  2020,  falls.  Therefore,  the  respondents  are  not \nresponsible for payment of any medical or indemnity benefits associated with the \nclaimant’s  long-standing,  well-documented,  symptomatic  lower  back/lumbar \nspine degenerative disc disease/condition. See Vaughn and Moody, supra.     \n \n4. The claimant has met her burden of proof in demonstrating the right ankle fusion \nsurgery Dr. Ardoin has recommended is related to and reasonably necessary in \nlight of her compensable injury. \n \n \n5. The  claimant  has  failed  to  meet  her  burden  of  proof  in  demonstrating  she  is \nentitled  to  additional  medical  treatment  at  the  respondents’  expense  for  her \nthoracic spine strain after May 15, 2021, the date Dr. Bruffett opined she reached \nMMI,  except  for  the  June  16,  2021,  MRI  Dr.  Bruffett  ordered  and  required  in \norder to clarify his opinion.       \n \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n19 \n6. The claimant has met her burden of proof in demonstrating the pain management \ntreatment she has undergone for her right ankle and neck/cervical spine injuries \nis   related   to   and   reasonably   necessary   for   treatment   of   her   admittedly \ncompensable injuries of August 13, 2019, and August 22, 2020.   \n \n7. The  claimant  has  met  her  burden  of  proof  in  demonstrating  she  is  entitled  to \nadditional TTD benefits from August 22, 2020, through March 8, 2021; and from \nMarch  9,  2021,  through  June  14,  2022,  the  date  Dr.  Martin  opined  she  had \nreached MMI. Of course, the respondents are entitled to take a credit toward this \naward of additional TTD benefits based on any and all indemnity benefits they \nmay have overpaid.   \n \n8. The  claimant’s  attorney  is  entitled  to  an  attorney’s  fee  on  all  controverted \nindemnity payments. \n \n \n                         AWARD \n \n     The respondents are hereby directed to pay benefits in accordance with the “Findings of \nFact and Conclusions of Law” set forth above. All accrued sums shall be paid in lump sum \nwithout discount, and this award shall earn interest at the legal rate until paid pursuant to Ark. \nCode Ann. Section 11-9-809, and Couch v. First State Bank of Newport, 49 Ark. App. 102, 898 \nS.W.2d 57 (Ark. App. 1995); Burlington Indus., et al v. Pickett, 64 Ark. App. 67, 983 S.W.2d \n126 (Ark. App. 1998); and Hartford Fire Ins. Co. v. Sauer, 358 Ark. 89, 186 S.W.3d 229 (2004).   \n     If they have not already done so, the respondents shall pay the court reporter’s invoice \nwithin ten (10) days of their receipt of this opinion and order. \nIT IS SO ORDERED.   \n \n                                              \n \nMike Pickens \nAdministrative Law Judge \n \nMP/mp \n\nLaura D. Easley, AWCC No. G906350 \n \n \n \n20","textLength":38370,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G906350 LAURA D. EASLEY, EMPLOYEE CLAIMANT COLLEGE HILL MIDDLE SCHOOL, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASS’N WORKERS’ COMPENSATION TRUST/ ARKANSAS SCHOOL BOARDS ASS’N, INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED MARCH 2, 2023 Hearing...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["ankle","neck","thoracic","cervical","back","lumbar","strain","hip"],"fetchedAt":"2026-05-19T23:09:04.604Z"},{"id":"alj-H203241-2023-03-02","awccNumber":"H203241","decisionDate":"2023-03-02","decisionYear":2023,"opinionType":"alj","claimantName":"Sarahl Hooten","employerName":"Central Arkansas Nursing Centers Inc","title":"HOOTEN VS. CENTRAL ARKANSAS NURSING CENTERS INC. AWCC# H203241 MARCH 2, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HOOTEN_SARAHL_H203241_20230302.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOOTEN_SARAHL_H203241_20230302.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203241 \n \nSARAH L. HOOTEN, Employee                                                                           CLAIMANT \nCENTRAL ARKANSAS NURSING CENTERS INC., Employer                  RESPONDENT \nESIS INC., Carrier                                                                                           RESPONDENT \n OPINION FILED MARCH 2, 2023 \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \nClaimant represented by EDDIE H. WALKER JR., Attorney, Fort Smith, Arkansas. \nRespondents represented by ERIC NEWKIRK, Attorney, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n On December 9, 2022, the above captioned claim came on for  hearing at Fort Smith, \nArkansas.  A pre-hearing conference was conducted on August 25, 2022 and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.    The Arkansas Workers’ Compensation Commission has jurisdiction of this claim.  \n 2.   The employee/employer/carrier relationship existed on December 22, 2021. \n  3. The respondents have controverted the claim regarding claimant’s left knee.    \n4. The compensation rates are $402.00 for temporary total disability and $302.00 for \npermanent partial disability.  \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Whether claimant sustained a compensable injury regarding her left knee. \n\nHooten-H203241 \n2 \n \n2. If compensable, is claimant entitled to a total knee replacement and indemnity benefits \nassociated therewith. \nAll other issues are reserved by the parties. \nThe claimant contends that: \n“a. That as the result of her admittedly compensable injury to her knee she is entitled to a \ntotal knee replacement and indemnity benefits associated with that knee replacement. \nb. The claimant further contends that the knee replacement has been controverted and \ntherefore, for any indemnity benefits associated with that knee replacement have been controverted \nand an award of such benefits will entitle her to an appropriate attorney’s fee.”  \nThe respondents contend that: \n“1. That the claimant did not sustain a compensable left knee injury as a result of a \npurported work incident on December 22, 2021. The respondents contend that there are no objective \nmedical findings of a related left knee injury on December 22, 2021, and the claimant made no \ncomplaints pertaining to her left knee on or about December 22, 2021. \n2. Alternatively, to the extent the claimant has any objective medical findings in existence \npertaining to her left knee, those findings would be traceable to the claimant’s preexisting left knee \nabnormalities and treatment she had already been receiving in connection with her left knee. Thus, \nany objective medical findings, to the extent they exist, would not be causally connected to the work \nincident/event. \n3. By way of further alternative defense, the respondents contend that even if objective \nfindings are somehow determined to exist which are traceable to a work incident/event on December \n22, 2021, those findings would be minimal in nature and a minor temporary aggravation of claimant’s \npreexisting left knee condition. Any needed medical treatment to restore the claimant to her baseline \ncondition as it related to the temporary aggravation would be minimal in nature and certainly not an \n\nHooten-H203241 \n3 \n \ninvasive,  extensive  procedure  such  as  a  total  knee  replacement. Respondents  contend  that  the \nclaimant’s need for a total knee replacement is causally connected to her preexisting left knee \nabnormalities and not traceable, in whole or in part, to the underlying alleged December 22, 2021 \nwork incident/event. \n4. By way of final alternative defense, the respondents assert an offset for any group \ninsurance benefits paid in any form or nature to or on behalf of the claimant, as well as an offset for \nany unemployment benefits paid to the claimant, to the extent allowed under Arkansas law.    \nFrom a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on August \n25, 2022, and contained in a pre-hearing order filed that same date, are hereby accepted as fact. \n 2. Claimant has failed to prove by a preponderance of the evidence that she suffered a \ncompensable injury to her left knee on December 22, 2021. \n FACTUAL BACKGROUND \n Following the hearing, the parties were asked if they wanted to each submit a brief in support \nof their position. Both declined, but subsequently, claimant requested that the parties submit post-trial \nbriefs.  That request was granted. The email exchange after the hearing and the brief filed by claimant \nare blue backed to the record; respondent did not submit a post-hearing brief.  \nHEARING TESTIMONY \n The claimant called two witnesses before she testified. Jordan Gump stated she was working \nwith claimant on December 22, 2021, when she heard a resident calling out for help. She and claimant \n\nHooten-H203241 \n4 \n \nbegan running and claimant fell in front of Ms. Gump, hitting her entire left side on the floor, including \nher shoulder, hip, knee, and foot.  She helped claimant get back to her feet but did not recall claimant \nvoicing a complaint about any part of her body being injured at that time.  A day later, Ms. Gump was \nworking with claimant and noticed that she was limping and heard her complain about her knee hurting.  \n On cross-examination, Ms. Gump said that she did not see claimant limping before December \n22, 2021. She had noticed that when walking, claimant “waddles in general” but she noticed a \ndifference in how she was walking after she fell. Ms. Gump did not recall claimant complaining about \nher knee hurting before December 22 or having her job modified because of her left knee.  \n Susan Willhite was called by claimant.  She said that she was working in the area where claimant \nfell to the floor and saw claimant when she returned from the doctor. Ms. Willhite testified claimant \nsaid her knee was hurting and Ms. Willhite noticed that claimant was limping. Ms. Willhite had seen \nher limp like that before some months earlier. Ms. Willhite said that she had talked to claimant before \nthe accident happened in the restroom or break room and was aware that claimant had knee problems. \nWhen shown her deposition testimony where she was asked if claimant was complaining of pain, Ms. \nWillhite read where she stated, “just her knee”, but when asked at the hearing: \n Question (by Mr. Walker) So was it clear to you that she was complaining about \n having injured  her knee when she fell? \n A. I don’t know. I am confused here. \n           Q. Well it’s a pretty straight forward question, ma’am. I asked you about the   \n           accident and you said – I asked you “did you see her actually fall?” You said “yes.”  \n           I said, “do you recall what part or parts of her body actually hit the floor?”       \n A. “Her knee.” \n Q. Then I asked –  \n A. I think the whole body. \n Q. Then I asked you “Do you recall her complaining of any pain or complaining \n that  she  thought  she  was  injured  in  anyway?”  Now  I  would  have  been \n referring to the incident; wouldn’t I? \n A. Uh-huh. \n\nHooten-H203241 \n5 \n \n Q. And your answer was, “Just the knee”. \n A. Uh-huh. \n Ms. Willhite then said that she didn’t know if claimant was complaining about knee pain when \nshe returned from the doctor on the night of the accident because she just briefly passed her when \nshe got back. She said she didn’t talk to claimant when claimant returned from the doctor. At that \npoint, Ms. Willhite’s deposition was proffered as an exhibit and the testimony in the deposition will \nbe summarized below.  \n On cross-examination, Ms. Willhite admitted that she was a little foggy on when claimant \nstarted complaining about her knee. Ms. Willhite thought it might have been in January, then at one \npoint said December, but admitted that she didn’t really know. She knew claimant had gone on \nChristmas vacation in South Carolina. Ms. Willhite was aware that claimant had prior knee problems \nbut was not aware of a July 14, 2020, work incident. She had noticed claimant was limping when she \ncame back from the doctor on December 22, 2021, but that was not anything different, because she \nhad seen claimant limping all the time.  \n On redirect-examination, Ms. Willhite said that she had seen claimant limping for quite some \ntime but had never discussed it with claimant. \n Ms. Willhite’s deposition was taken four days before the hearing. She said she had known \nclaimant for eight years and recalled the accident of December 22, 2021. She said claimant tripped on \nher own feet because there was nothing there. She saw claimant fall but did not remember what parts \nof her body hit the floor. She recalled claimant complaining of pain in her knee but did not remember \nwhich knee. She didn’t recall anything else being said about the knee because claimant was sent to the \ndoctor after it happened. She didn’t know if anyone else was around to see the fall, including Jordan \nGump. Ms. Willhite said she was the one that helped claimant up from the floor. Ms. Willhite said she \nwas passing out linen and just happened to be there at the time of the fall. Ms. Willhite thought \n\nHooten-H203241 \n6 \n \nclaimant didn’t act like she was really hurt, but more embarrassed. After she returned from the doctor, \nshe said her knee was hurting. She didn’t know anything about claimant’s medical condition before \nthe fall.  \n On cross-examination in the deposition, Ms. Willhite said she didn’t know for sure if claimant \ntold her something about the knee on December 22 or if it was a different day. She did see claimant \nwearing a knee brace but didn’t know if that was in January when she started doing that. There was \nthen this exchange with respondent’s counsel: \n Question (by Mr. Newkirk) I need to know can you testify under oath that she  \n            told you her knee was hurting that day at the time of that incident. \n  A. She did tell me; yes, when she got back; yes. \n \n Q. You say, “when she got back.” That’s what I am saying. \n A. Yeah. \n Q. When you helped her up, did she say anything about it? \n A. No. \n Q. And when she got back – do you know if you saw her in December or  \n in January when she got back? \n             A. See I don’t know. I don’t know when it was. \n Q. You just know at some point you saw her again –  \n A. Right. \n \n Q. – after the incident, she mentioned her knee was hurting? \n A.  (No response) \n Q. Is that right? \n A. Right. \n Q. It could have been in December; it could have been in January? \n A. Right. \n On redirect examination, Ms. Willhite clarified that she saw claimant fall and knew that she \nwent to the doctor on that same day. She knew that claimant came back to the nursing home that \n\nHooten-H203241 \n7 \n \nsame day and said that her knee got messed up. Ms. Willhite said that she had seen claimant when she \ngot back on the same day.   \nOn  recross  examination,  the  following  exchange  took  place  between  Ms.  Willhite  and \nrespondent’s counsel: \n Question (by Mr. Newkirk) Well, what you are telling us is one thing to  \n            Mr. Walker and you are telling me two different things. You are telling Mr. \nWalker that on that day – she came back in there that day on December 22 \nand she complained to you about her knee and she was limping and wearing \na thing? \n            A. Uh-huh. \n Q. – and you know it was that day, but yet you tell me – \n A. It was that day she did come back because she had to give the nurse the \nslip for going; yeah. \n \n Q. So it wasn’t in January? \n A. No, no it was right after it happened. \n Claimant testified that on December 22, 2021 she fell at work when she was going to look for \nsomeone that was yelling for help. She went to the doctor and returned to work because the doctor \ndid not take her off duty. She said she first realized her knee was injured on the same night when she \nwas walking to give a person a shower but did not report it that night. She believed she first mentioned \nthat her knee was hurting on the third or fourth day after the fall. Claimant had time off work during \nthe Christmas vacation and then returned after her trip. She said when she returned to work, her knee \nwas swollen and “hurting like crazy”. She went to see the doctor at Arkansas Occupational Health, \nthe facility where she was sent by the HR director. Claimant did not recall if she said at the time that \nthe knee was hurting because of the fall. \n Claimant stated when she was at the emergency room the night of the fall, the emergency \nroom doctor did not x-ray her knee because he did not have an order to do that. She understood that \nthe incident report that she filled out listed problems with her left shoulder and left hip but said \nnothing about her left knee. Claimant said that at the time that she filled out the form, her hip and \n\nHooten-H203241 \n8 \n \nshoulder were really bothering her, but her knee didn’t start hurting until three days afterwards. When \nasked why she testified in a deposition that her knee was bothering her when she went to the \nemergency room, she said it was possible that she got that incident mixed up with a previous fall that \nshe had. She said she was very nervous during the deposition and nervous while she was testifying, \nwhich causes her to become forgetful. It was established that the previous fall she referred to was in \nJuly   2020. Claimant said that her knee hurt worse after the December 22, 2021 accident Claimant \nstated that she was not wearing a brace on her knee at the time of the December 22, 2021 accident, \nbut was given one following that fall. Claimant said that she continued to work at the nursing home \nafter the July 2020 accident and was released from active treatment. She did not return to the doctor \nfor any additional treatment on her knee prior to December 22, 2021, because she believed there was \nnothing else that could be done for her. \n On cross-examination, claimant agreed that some of the testimony she gave in her deposition \nwas wrong because she was nervous. Claimant said the doctor that was treating her would not send \nher to an orthopedic doctor because the bone chips under her kneecap were nothing that could be \nhelped with surgery. She said that her knee problems continued to worsen, and she now was seeking \na total knee replacement. When shown the records from 2015 when she had a venous Dopplar study \nof her left leg, claimant did not remember that taking place. She did recall having an MRI for low back \nissues but did not recall completing a form in July 2020 in which she said that she “had water under \nmy kneecap” before the July 2020 fall. When asked if she told anyone following the December 22, \n2021, fall that her left leg had just buckled and gave out as she was walking, claimant maintained that \nshe did not remember saying that to anyone.  \n The following exchange took place in claimant’s deposition: \n Question (by Mr. Newkirk) What about your left knee? \n A. Well that’s – it popped. \n\nHooten-H203241 \n9 \n \n Q. So it didn’t feel like it was bruised. It felt worse? \n A. Yes. \n Q. So you knew instantly that something was wrong with your left knee worse \n            than just a bruise? \n A. Yes sir. \n Q. Like within three minutes? \n A. Yes sir. \n Claimant denied that was accurate, and said it was three days afterwards when she started \nhaving problems with her knee, but then said it might have been even later. Claimant was adamant \nthat she did not have any knee problems while she was on vacation, maintaining it was after she \nreturned.   \n The following testimony took place: \n Question (by Mr. Newkirk) OK. So actually, it was January, then, when you started  \n            developing your problems after you got back from your trip? \n A. I don’t remember exactly. \n Q. Well you got back about January 3. I think that’s what you testified to. Does that \n            sound about right? \n A. That sounds about right. \n Q. You were out there for a week? \n A. Yes. \n Q. Then when you came back to Arkansas you started having problems? \n A. After I started working. \n Q. OK. After you started working? \n A. Yes. \n Q. So you started doing your shift and started having problems and went to see \n            if they would let you go get some treatment for the knee? \n A. Yes.  \n Q. OK. So that is even different than what you told me earlier because it wasn’t \n            within three of four days, it was more like twelve to fourteen days, right? \n A. I think so. \n Q. So in your deposition when you told me it happened immediately, within seconds \n\nHooten-H203241 \n10 \n \n            and you knew, that is wrong; right? \n A. Yes. I got nervous. \n When shown the ARN form that claimant filled out on December 22, 2021, she conceded \nthere was nothing on it about her knee because that didn’t happen until sometime in January.  \n When asked about her statement in the deposition that her knee complaint was not treated in \nthe emergency room, claimant said that she asked why they weren’t checking her knee.  \n And then the following exchange took place: \n Question (by Mr. Newkirk) So you felt like – again there wouldn’t have been  \n            a need to check it, right, because you didn’t have knee problems from December \n            22, until January; right? \n A. Well I asked because I think since they were checking my shoulder and hip, they \n            should check my knee too, just to make sure it was alright, that’s why I was asking. \n Q. OK and again, you didn’t have additional knee problems until January? \n A. Right. \n On redirect-examination, claimant said she didn’t do anything during her trip to see her \ngrandchildren to injure her knee.  \n On questioning from the court, the following exchange took place: \n Question (by the Court) Ms. Gump testified she saw you limping either that night or  \n within the next couple of days. Do you remember hearing her say that? \n A. Yes sir. \n Q. But you just told us you didn’t have any trouble with the knee until January, \n             is that right? \n A. Yes sir. \n Following that exchange with me, the claimant said she had been limping “ever since I fell the \nfirst go around.” \n Then there was this exchange with her attorney: \n Question (by Mr. Walker) How soon after you fell did it get worse? \n A. About three days later.  \n Q. You understand that when you are answering my questions you are telling us \n             it got worse within days and when you are answering Mr. Newkirk’s questions, \n\nHooten-H203241 \n11 \n \n             you are saying it got worse in January. \n A. It kept on getting worse from the third day and it didn’t get any better. \n Respondent called Amanda Burton, the director of nursing at Alma Nursing and Rehab, who \nis claimant’s direct supervisor. She was not present on December 22, 2021, when claimant fell but did \nreceive a call from the charge nurse that evening, alerting her of the fall. She saw claimant on a day-\nto-day basis and prior to December 22, 2021, she had noticed that claimant had a limp regarding her \nleft leg and had also complained about claimant’s left knee. Ms. Burton said that claimant’s job had \nbeen modified because “she wasn’t able to keep up with call lights and stuff, so we had made it where \nshe did a lot of the vitals, pass the ice. Did a lot of the other things that the aides – so the aides could \ndo most of the care.” She next saw claimant on January 5, 2022, when claimant returned from vacation. \nWhen claimant was asked about what had happened, claimant said she was going to do something \nand while going down the hall her knee gave out. \n On cross-examination, Ms. Burton said she had not reviewed the paperwork that had been \ncompleted the night of the incident but had just asked claimant how she was doing because claimant \nwas limping. She believed this limp was worse than it had been before the incident on December 22, \n2021. Ms. Burton did not inquire as to whether claimant had done anything during her vacation to \nhurt her knee, she had simply noticed that claimant’s gait was worse, and she asked how she was doing. \nWhen claimant said her knee was hurting, Ms. Burton sent her to see the human resources director to \nmake an appointment with a doctor about her knee. \n On redirect-examination, Ms. Burton said that because the knee injury seemed to be work \nrelated, she sent her to human resources. She didn’t know if a knee buckling or giving out was \ncompensable and that was not for her to decide. \n Respondents then called Kristina Martens, the lead CNA at Alma Nursing. She had known \nclaimant for six years and worked alongside her. Ms. Martens believed that she was claimant’s direct \n\nHooten-H203241 \n12 \n \nsupervisor, as claimant was to bring any problems to her and then to Amanda Burton if necessary. \nMs. Martens described the way claimant walked as “she hobbles” because of her knee, and had done \nso prior to December 22, 2021. She knew that claimant had accommodations at work of a light duty \nnature, which had begun before December 22, 2021. Ms. Martens was not present when the accident \ntook place and did not see claimant again until after claimant returned from vacation. At that time, \nclaimant told Ms. Martens that “she was walking down the hallway and her knee buckled and she fell.”  \n On cross-examination, Ms. Martens said she had not seen the incident report and did not \nknow what claimant had said about how the accident had taken place. She said that she had seen \nclaimant wearing a brace on her knee after the fall in December 2021. \nREVIEW OF THE EXHIBITS \n \n The medical records revealed little that was not previously discussed during the testimony. \nClaimant went to the emergency room on December 22, 2021, where she was examined for shoulder \nand hip injuries. Consistent with claimant’s testimony, there was no record of her knee  being \nexamined.  \n Claimant next was seen by Cynthia Johnson, APRN, at Arkansas Occupational Medicine \nServices on January 11, 2022. This is consistent with her testimony that when she returned from her \nvacation, she reported that her knee was hurting, and an appointment was scheduled for her at that \nfacility. X-rays were ordered and there were no acute findings or obvious fractures, but additional \nimaging was ordered due to claimant’s presentation.  \n The diagnosis was: \n 1. Sprain of unspecified site of left knee, initial encounter. \n 2. Fall on same level from slipping, tripping, and stumbling with subsequent striking  \n            against unspecified object, initial encounter. \n\nHooten-H203241 \n13 \n \n At that visit, claimant reported that her left knee began hurting and swelling a few days after \nher injury. She was put on restrictive duty which included no lifting, pushing, pulling in excess of ten \npounds and she was to stand, sit, and walk as tolerated.   \nAn MRI was performed on February 8, 2022, and the impression was: \n 1. Moderate medial joint space degenerative change with cartilage loss and marginal \n osteophytes and marrow edema-type changes femur greater than tibia and with medial \n meniscus tear. \n 2. Joint effusion. \n 3. Small central anterior horn lateral meniscus tear. \n Following the MRI claimant was referred to Mercy Clinic River Valley Muscular Skeletal \nCenter. She was scheduled for a knee arthroplasty total replacement on May 3, 2022, but that surgery \ndid not occur.  There were no office notes or other information from the surgeon that was going to \nperform the operation, Dr. Timothy Garlow, regarding his examination of claimant.    \n Respondent introduced several records that predated the fall of December 22, 2021.  The most \napplicable one was the MRI of claimant’s left knee from July 24, 2020.  The impression at that time \nwas:  \n1. Findings suggestive of microfractures and bony contusion of the inferior patella. \n2. Moderate suprapatellar joint effusion \n3. Tricompartmental osteoarthritis, most pronounced at the medial compartment. \n No definite tear of the menisci or cruciate ligaments.  \n \nADJUDICATION \n In order for claimant to prevail in this matter, she was required to show: (1) that she suffered \nan injury arising out of and in the course of her employment; (2) that the injury was caused by a specific \nincident; (3) that the injury caused internal or external physical harm to her body; (4) that the injury is \nsupported by objective findings; (5) that the injury was the major cause of the disability or need for \nmedical treatment. Ark. Code Ann. § 11-9-102.   I find claimant failed on her burden of proof on the \nfirst and fifth factor listed.  \n\nHooten-H203241 \n14 \n \n In reviewing the testimony provided by those witnesses other than claimant, I found Jordan \nGump to be credible; however, the portion of Ms. Gump’s recollection which was most beneficial to \nclaimant—that she was limping and complaining of pain in her knee the next day-- was directly \ncontradicted by claimant later in the hearing. (TR. 69).   \nAmanda Burton and Kristina Martens did not see claimant after the fall until she returned \nfrom vacation. However, both talked to claimant when she returned to work on January 5, 2022, and \ntestified that claimant attributed the fall to her knee “giving out” (Burton) or “buckling” (Martens).  \nGiven the various accounts claimant gave about her knee injury, which will be detailed below, their \nrecollections as to what claimant said on or about January 5, 2022, were both credible.  \n On the other hand, Susan Willhite was not a credible witness.  In reviewing her testimony at \nthe hearing and at the deposition a few days before the hearing, there are parts of her testimony that \ncannot be harmonized or attributed to misunderstanding the question.  I do not care to speculate on \nwhy her testimony was so varied regarding what happened on December 22, 2021, but I note that, as \nwith Ms. Gump’s testimony,  the portions that would have been most beneficial to claimant were \nrefuted by her. \n I turn now to the task of trying to reconcile claimant’s testimony.  At various times, she said: \n1. Her knee hurt immediately (R.X #3, page 34); but   \n2. On the AR-N form, she omitted a mention of the knee injury (R.X #2, page 2); then \n3. Went to the ER where the knee was both hurting (R.X. #3, page 4); and  \n4. Not hurting (TR.65); but \n5. She wanted it checked anyway before returning to work (TR. 63); where   \n6. She noticed it was hurting the same day when giving someone a shower (TR.36) and told \nMs. Gump and Ms. Willhite she hurt it in the fall; but \n7. It didn’t start hurting until three days later (TR. 39) ; however,  \n8. It may have been longer than three days, but definitely not while on vacation (TR. 58-59); \nalthough \n9. It wasn’t healed when she got back from the trip, because it had swollen like a basketball \n(TR.   39); but  \n10. It was more like 12 days after the fall when it started hurting. (TR. 59-60) \n\nHooten-H203241 \n15 \n \n I can understand how someone that is not accustomed to legal proceedings and dealing with \nattorneys could be nervous; the unknown does that to us all.  But I cannot just pick one of her accounts \nwithout engaging in speculation about why she said the others; maintaining “I was nervous” doesn’t \nexplain these various accounts of when her knee started hurting, all of which cannot be right. There \nis also the entry on the February 11, 2022, record from Arkansas Occupational Medicine Services \nwhere there is a mention of a “subsequent striking against unspecified object,” which could have only \ncome from claimant.   In her brief, claimant correctly pointed out that there is no evidence that she \ninjured her leg while on vacation, but then again, the only testimony on that point was from a most \nunreliable witness, the claimant herself.  It isn’t unreasonable to hear the part of her testimony where \nshe said it was swollen when she got back from the trip, or when she said it was hurting when she \nreturned, but not before, and conclude that something could have happened to her knee while she \nwas off work.   \n Even if I could settle on one of claimant’s many versions as the accurate account of when she \nnoticed her knee was injured, she still failed to prove that the fall on December 22, 2021, caused an \ninjury that necessitated a knee replacement surgery.  In Jackson v. O'Reilly Auto. Inc., 2013 Ark. App. \n755, the Court of Appeals affirmed a decision by the Commission that Jackson had not proven a \ncausal connection between his compensable injury and the need for a knee replacement.   In the case \nat bar, claimant’s proof that she suffered a compensable injury was insufficient due to her erratic \ntestimony, but nonexistent on the connection between the fall and the need for a knee arthroplasty.  \nSaid another way, even if I believed claimant tore her medial meniscus when she fell to the floor on \nDecember  22,  2021,  I  have  nothing  before  me  to  demonstrate  that  injury  required  the  knee \nreplacement surgery.  Claimant had problems with her knee before December 22, 2021.  Before the \nfall, Ms. Gump said she had always waddled when she walked (although it was more pronounced after \nthe fall); Ms. Willhite had seen her limping; Ms. Burton testified that her job had been modified due \n\nHooten-H203241 \n16 \n \nto her knee issues; and Ms. Martens described claimant’s ambulation as hobbling.  The MRI of July \n24, 2020, showed “tricompartmental osteoarthritis” in her left knee, which could explain why four \nwitnesses said claimant limped, hobbled, or waddled when she walked before the fall.  Without \nsomething from Dr. Garlow (or another medical professional) opining that the fall was at least a factor \nin the need for a knee replacement, claimant lacked the necessary proof that it was connected to her \nneed for that surgery.\n1\n            \nORDER \n \nClaimant has failed to meet her burden of proving by a preponderance of the evidence that \nshe suffered a compensable injury to her left knee on or about December 22, 2021. Therefore, her \nclaim for compensation benefits is hereby denied and dismissed. \nRespondents are responsible for paying the court reporter her charges for preparation of the \nhearing transcript in the amount of $ 846.95. \n IT IS SO ORDERED. \n \n \n                                                                                           \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE \n \n \n \n \n \n1\n The burden of proof would have been less than the “major cause” standard: “An employee is not required to prove \nthat his compensable injury is the major cause for the need for treatment unless he is seeking permanent benefits; \nwhen the employee has suffered a specific injury and is only seeking medical benefits and temporary total disability, \nthe major-cause analysis is not applicable and the employee need only show that the compensable injury was a \nfactor in the need for additional medical treatment.” Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 \n(2004).","textLength":31690,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203241 SARAH L. HOOTEN, Employee CLAIMANT CENTRAL ARKANSAS NURSING CENTERS INC., Employer RESPONDENT ESIS INC., Carrier RESPONDENT OPINION FILED MARCH 2, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Arkansas....","outcome":"denied","outcomeKeywords":["affirmed:1","modified:1","dismissed:1","denied:3"],"injuryKeywords":["knee","shoulder","hip","back","sprain"],"fetchedAt":"2026-05-19T23:09:06.693Z"},{"id":"alj-H102269-2023-03-01","awccNumber":"H102269","decisionDate":"2023-03-01","decisionYear":2023,"opinionType":"alj","claimantName":"Hershel Hice","employerName":"Logan County","title":"HICE VS. LOGAN COUNTY AWCC# H102269 MARCH 1, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HICE_HERSHEL_H102269_20230301.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HICE_HERSHEL_H102269_20230301.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO.  H102269 \n \nHERSHEL HICE, Employee                                                                                                      CLAIMANT \n \nLOGAN COUNTY, Employer                                                                      RESPONDENT \n \nASSOCIATION OF ARKANSAS COUNTIES WCT, Carrier                       RESPONDENT \n \n \n \nOPINION FILED MARCH 1, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MATTHEW J. KETCHAM, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n \nSTATEMENT OF THE CASE \n \n On  February  6,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on December 14, 2022, and \na  pre-hearing  order  was  filed  on  that  same date.   A  copy  of  the  pre-hearing order has \nbeen marked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of the  \nwithin claim. \n2.   The claimant sustained a compensable injury to his low back on February 19,  \n2021. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n\nHice – H102269 \n \n2 \n \n1. Compensability of injury to claimant’s right shoulder. \n2. Claimant’s entitlement to medical. \n The claimant contends he suffered a compensable injury to his right shoulder on \nFebruary  19,  2021.    He  contends  he  is  entitled  to  medical  as  a  result  of  the shoulder \ninjury. \n The  respondents  contend  the  claimant  slipped  and  fell  on  ice  on  February  19, \n2021.    His  initial  complaint  was  of  low  back.    An  MRI  revealed  a  pre-existing  sacral \nfracture.  No surgery was recommended.  He then complained about his cervical spine \nand  no  surgery  was  suggested.    Later,  he  started  to  complain  of  his  shoulder.   His \nshoulder  was  not  injured  in  this  accident.    He  has  no  objective  findings  of  a  shoulder \ninjury. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \nFINDINGS OF FACT & CONCLUSIONS OF LAW \n1.  The stipulations agreed to by the parties at a pre-hearing conference conducted  \non December  14,  2022  and  contained  in  a  pre-hearing  order  filed  that same  date  are \nhereby accepted as fact. \n2.    Claimant  has failed to prove by a preponderance of the evidence that  he  \nsuffered a compensable injury to his right shoulder on February 19, 2021. \n \n\nHice – H102269 \n \n3 \n \nFACTUAL BACKGROUND \n Claimant works for respondent’s road department and on February 19, 2021, he \nfell onto  an  icy  road  while  helping a coworker out of a ditch.  According to claimant’s \ntestimony, he fell flat onto his back. \n Medical records indicate that claimant was diagnosed with a closed fracture of the \nsacrum and coccyx and he also made some complaints of neck pain.  On March 15, 2021, \nclaimant was evaluated by Dr. Cheyne who noted that claimant was having both cervical \nand low back pain.  Dr. Cheyne prescribed physical therapy for both of those conditions. \n On April 1, 2021, claimant was again evaluated by Dr. Cheyne who noted that the \nphysical  therapy  had  not  provided  claimant  much  relief.    Dr.  Cheyne  indicated  that \nclaimant should continue with his medications, physical therapy, and he also ordered an \nMRI scan of the lumbar spine. \n Apparently, Dr. Cheyne also ordered an MRI scan of claimant’s cervical spine \nwhich was performed on September 16, 2022, and revealed mild disc degeneration.  On \nOctober 4, 2022 claimant did a telephonic visit with Dr. Barry Katz.  In his report of that \ndate, Dr. Katz stated: \nHe continues with shoulder pain greater than neck pain.  His \ncervical MRI does not show severe stenosis.  We talked about \noptions.  I will send him for pain management for his neck and \nto ortho to evaluate his shoulder.  We will follow up and make \nfurther recommendations. \n \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis right shoulder on February 19, 2021 and is requesting recommended treatment for his \nright shoulder. \n \n\nHice – H102269 \n \n4 \n \nADJUDICATION \n Claimant contends that he suffered a compensable injury to his right shoulder on \nFebruary 19, 2021.  Claimant’s claim with regard to his right shoulder is a specific injury \nidentifiable by time and place of occurrence.     In order to prove a compensable injury as \nthe  result  of  a  specific  incident  that  is  identifiable  by  time  and  place  of  occurrence,  a \nclaimant must establish by a preponderance of the evidence (1) an injury arising out of \nand in the course of employment; (2) the injury  caused internal or external harm to the \nbody  which  required  medical  services  or  resulted  in  disability  or  death;  (3)  medical \nevidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury  was \ncaused by a specific incident identifiable by time and place of occurrence.  Odd Jobs and \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n Initially,  it  should  be  noted  that  respondent  has  only  stipulated  that  claimant \nsuffered a compensable injury to his low back.  While claimant did receive some medical \ntreatment  for  his  neck  following  his  injury,  respondent  has  not  stipulated  that  claimant \nsuffered  a  compensable  injury  to  his  neck  and  no  claim  has  been  filed  by  claimant \ncontending that he suffered a compensable injury to his neck.  Instead, the only issue is \nwhether claimant suffered a compensable injury to his right shoulder. \n After my review of the relevant evidence, I find that claimant has failed to meet his \nburden of proving by a preponderance of the evidence that he suffered a compensable \ninjury to his right shoulder on February 19, 2021.  Specifically, claimant has failed to offer \nmedical  evidence  supported  by  objective  findings  establishing  a  compensable injury.  \n“Objective  findings” are  defined  as  findings  which  cannot  come under  the  voluntary \ncontrol of the patient.  A.C.A. §11-9-102(16)(A)(i).   Here, it is claimant’s contention that \n\nHice – H102269 \n \n5 \n \nhis treating physicians originally believed that his complaints involved his neck, but that \nthose  treating  physicians  now  believe  that  his  complaints  are  coming  from  his  right \nshoulder. \n As  previously  noted,  respondent  has  never  accepted  liability  for  a  compensable \ninjury involving claimant’s neck and claimant has not made a claim for an injury to his \nneck.    Dr.  Katz  indicated  that  he  would  refer  claimant  to  an  orthopedic  surgeon  for  an \nevaluation of the shoulder.  Claimant was apparently evaluated by a nurse practitioner, \nPatrick Walton, who recommended an MRI scan of claimant’s right shoulder; however, \nthat MRI scan has not been performed and no other testing on claimant’s right shoulder \nhas been performed.   Furthermore, there are no other objective findings regarding the \nshoulder noted in the medical evidence.  Therefore, there is no objective evidence of an \ninjury to claimant’s right shoulder.  Absent objective findings, claimant cannot meet his \nburden of proving by a preponderance of the evidence that he suffered a compensable \ninjury to his right shoulder. \n In short, in order to prove a compensable injury to his right shoulder, claimant must \noffer  medical  evidence  supported  by  objective  findings  establishing  his  injury.    Here, \nclaimant  has offered no  objective findings  regarding  his  right  shoulder.     Therefore,  he \nhas failed to meet his burden of proof. \n \nORDER \n Claimant  has  failed  to  meet  his  burden  of  proving  by  a  preponderance of  the \nevidence  that  he  suffered  a  compensable  injury  to  his  right  shoulder  on  February  19, \n2021.  Therefore, his claim for compensation benefits is hereby denied and dismissed. \n\nHice – H102269 \n \n6 \n \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $253.95. \n IT IS SO ORDERED. \n \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":8724,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H102269 HERSHEL HICE, Employee CLAIMANT LOGAN COUNTY, Employer RESPONDENT ASSOCIATION OF ARKANSAS COUNTIES WCT, Carrier RESPONDENT OPINION FILED MARCH 1, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County, Arkans...","outcome":"denied","outcomeKeywords":["dismissed:1","denied:3"],"injuryKeywords":["back","shoulder","fracture","cervical","neck","lumbar"],"fetchedAt":"2026-05-19T23:09:02.444Z"},{"id":"alj-H004744-2023-02-28","awccNumber":"H004744","decisionDate":"2023-02-28","decisionYear":2023,"opinionType":"alj","claimantName":"Gloria Blaylock","employerName":"Pine Bluff School District","title":"BLAYLOCK VS. PINE BLUFF SCHOOL DISTRICT AWCC# H004744 FEBRUARY 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BLAYLOCK_GLORIA_H004744__20230228.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BLAYLOCK_GLORIA_H004744__20230228.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H 004744 \n \nGLORIA BLAYLOCK, EMPLOYEE       CLAIMANT \n \nPINE BLUFF SCHOOL DISTRICT, EMPLOYER        RESPONDENT  \n \nAR SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA       RESPONDENT   \n \nOPINION FILED FEBRUARY 28, 2023 \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe in Pine  Bluff,  Jefferson \nCounty, Arkansas, on February 9, 2023. \n \nClaimant is Pro Se and did not appear. \n \nRespondents are represented by Worley, Wood & Parrish, PA. Mr. Jarrod S. Parrish \nappeared. \n \nSTATEMENT OF THE CASE \n A  hearing  was  held  in  the  above  styled  matter  on  February  9,  2023,  on  the \nrespondents’ Motion to Dismiss for failure to prosecute pursuant to Arkansas Code Annotated \n§  11-9-702  of  the  Arkansas  Workers’  Compensation (AWCC)  Act and  AWCC  Rule  099.13.  \nThe  claim  involves  an  injury  which  allegedly  occurred  on  or  about  May  14,  2019.  \nForms AR-1 and AR-2 were filed on July 20,2022. The claim was listed as medical only.   \nA  Motion  to  Dismiss  was  first  filed  on  February  23,  2022,  and  the  claimant  filed  a \nresponse  on  March  22,  2022,  appearing  to  resist  dismissal.  Prehearing    questionnaire \nresponses  were  received  from  the  claimant  and  the  respondents  on  April  11  and  April  19, \n2022, respectively. Claimant subsequently sought a Change of Physician (COP), which was \ngranted by way of an Order from the Medical Cost Containment Division on June 27, 2022.\n1\n   \n \n1\n In June of 2022, I was serving as the Administrator of the AWCC’s Medical Cost \nContainment Division (MCCD), and, accordingly, my signature appears on the Order \ngranting the COP. Such Orders are regularly granted pro forma, after being coordinated by \nMCCD staff. I do not recall any direct discussion or correspondence with the claimant in my \n\nBLAYLOCK- H 004744 \n2 \n \nThe immediate Motion to Dismiss was filed on December 12, 2022, and a hearing was \nset for 11:00 am on Thursday, February 9, 2023. Notice of the Motion sent via certified mail \nand First Class mail to the claimant at the address provided to the Commission by her, which \nis consistent with the return address on her March 22 and April 11, 2022, filings. A certified \ncopy of the motion notice letter was returned unsigned, as was the January 5, 2023, Notice \nof Hearing. The First Class letters were not returned.  \nThe  claimant  failed  to  appear  at  the  hearing;  nor  did  she  provide  any  proposed \nexhibits  resisting  the  motion  prior  to  the  hearing.  Mr.  Parrish  presented  evidence  and, \nconsistent with the respondents’ Motion, asked that the case be dismissed for the claimant’s \nfailure to prosecute her claim, as more than six (6) months had passed without any request \nfor  a  hearing  on  an  issue  ripe  for  adjudication.  Indeed,  the  record  before  reflects  no  such \nrequest in the six (6) months prior to the filing of the Motion. \n After  a  review  of  the  record  as  a  whole,  to  include  all  evidence  properly  before  the \nCommission,  and  having had  an  opportunity  to  hear  the  statements  of  the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted at \nthis time, and the matter should be dismissed without prejudice. \nORDER \n The  Motion  to  Dismiss  is  hereby  be  granted,  and  this  matter  shall  be  dismissed \nwithout prejudice.   \nIT IS SO ORDERED. \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE   \n   \n \nprevious role as the MCCD Administrator and do not feel or find that any conflict exists \nthat would require my recusal from this matter.","textLength":3692,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H 004744 GLORIA BLAYLOCK, EMPLOYEE CLAIMANT PINE BLUFF SCHOOL DISTRICT, EMPLOYER RESPONDENT AR SCHOOL BOARDS ASSOC. WCT, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 28, 2023 Hearing before Administrative Law Judge JayO. Howe in Pine Bluff, Jefferson Count...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:4"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:10:43.526Z"},{"id":"alj-H201434-2023-02-28","awccNumber":"H201434","decisionDate":"2023-02-28","decisionYear":2023,"opinionType":"alj","claimantName":"Martina Folan","employerName":"White River Area Agency On Aging","title":"FOLAN VS. WHITE RIVER AREA AGENCY ON AGING AWCC# H201434 FEBRUARY 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FOLAN_MARTINA_H201434_20230228.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FOLAN_MARTINA_H201434_20230228.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H201434 \n \nMARTINA FOLAN              CLAIMANT \n \nWHITE RIVER AREA AGENCY ON AGING, Employer        RESPONDENT \n \nAGING SERVICES FUND/ \nRISK MANGAGEMENT RESOURCES, CARRIER/TPA        RESPONDENT \n            \nOPINION FILED FEBRUARY 28, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy on February 22, 2023, \nin Batesville, Independence County, Arkansas. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Ms. Melissa Wood, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on February 22, 2023, in Batesville, \nArkansas, on  respondent’s  Motion  to  Dismiss  for failure  to  prosecute  pursuant  to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant failed to appear at the hearing.  The White River Area \nAgency on Aging filed an AR-N Form on December 16, 2021, and filed a First Report of \nInjury on December 20, 2021. The claimant filed an Arkansas Form-C on February 16, \n2022, contending she had injured her neck causing numbness to her right arm and whole \nbody  while  assisting a  patient.  The  respondents  denied  the  claim  in  its entirety.   The \nclaimant was originally represented by counsel, but counsel was allowed to withdraw by \nan Order dated November 15, 2022.  A Motion to Dismiss for Failure to Prosecute was \nfiled by the respondents on or about November 11, 2022.  \n\nFOLAN – H201434 \n \n2 \n \nAn appropriate notice setting this matter for a hearing on February 22, 2023, was \nprovided, and the claimant did not file an objection or appear at the hearing in Batesville, \nArkansas.    At  the  time  of  the  hearing,  Melissa  Wood  appeared  on  behalf  of  the \nrespondents and asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondents, I find that this matter should be dismissed for failure to prosecute pursuant \nto  Arkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act. \nORDER \n \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2581,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201434 MARTINA FOLAN CLAIMANT WHITE RIVER AREA AGENCY ON AGING, Employer RESPONDENT AGING SERVICES FUND/ RISK MANGAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 28, 2023 Hearing before Administrative Law Judge James D. Kennedy on February...","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:1"],"injuryKeywords":["neck"],"fetchedAt":"2026-05-19T23:10:45.593Z"},{"id":"alj-H101615-2023-02-28","awccNumber":"H101615","decisionDate":"2023-02-28","decisionYear":2023,"opinionType":"alj","claimantName":"Patricia Goff","employerName":"Searcy Healthcare, LLC","title":"GOFF VS. SEARCY HEALTHCARE, LLC AWCC# H101615 FEBRUARY 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GOFF_PATRICIA_H101615_20230228.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GOFF_PATRICIA_H101615_20230228.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H101615 \n \nPATRICIA GOFF, EMPLOYEE          CLAIMANT  \n \nSEARCY HEALTHCARE, LLC, EMPLOYER                  RESPONDENT \n \nZURICH AMERICAN INSURANCE COMPANY, CARRIER / \nTRISTAR RISK MANAGEMENT GROUP, TPA         RESPONDENT \n            \nOPINION FILED FEBRUARY 28, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy on February 22, 2023, \nin Batesville, Independence County, Arkansas. \n \nClaimant is pro se and failed to appear. \n \nRespondents  are  represented  by  their  attorney,  Mr.  Joseph  H.  Purvis,  of  Little \nRock, Arkansas. \n \nOPINION \n \n A hearing was held in the above-styled matter on February 22, 2023, in Batesville, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant failed to appear at the hearing.  The employer, Searcy \nHealthcare, LLC,  filed a First Report of Injury on February 11, 2021. The claimant filed \nan Arkansas Form-C on March 8, 2021, contending she had injured her neck, back, right \nshoulder, right wrist, and other parts of her body.  The respondents initially accepted the \ninjury to claimant’s right wrist and shoulder, as well as middle back.  The claimant was \noriginally represented by counsel, but counsel was allowed to withdraw by an Order dated \nOctober  25,  2022.  A  Motion  to  Dismiss  for  Failure  to  Prosecute  was  filed  by  the \nrespondents on or about September 28, 2022.  \n \n\nGOFF – H101615 \n \n2 \n \nAn appropriate notice setting this matter for a hearing on February 22, 2023, was \nprovided, and the claimant did not file an objection or appear at the hearing in Batesville, \nArkansas.   \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, I find that this matter should be dismissed for failure to prosecute pursuant \nto  Arkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2456,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H101615 PATRICIA GOFF, EMPLOYEE CLAIMANT SEARCY HEALTHCARE, LLC, EMPLOYER RESPONDENT ZURICH AMERICAN INSURANCE COMPANY, CARRIER / TRISTAR RISK MANAGEMENT GROUP, TPA RESPONDENT OPINION FILED FEBRUARY 28, 2023 Hearing before Administrative Law Judge James D. ...","outcome":"dismissed","outcomeKeywords":["dismissed:4"],"injuryKeywords":["neck","back","shoulder","wrist"],"fetchedAt":"2026-05-19T23:10:47.657Z"},{"id":"alj-G902784-2023-02-28","awccNumber":"G902784","decisionDate":"2023-02-28","decisionYear":2023,"opinionType":"alj","claimantName":"Betty Lewis","employerName":"Walmart Associates, Inc","title":"LEWIS VS. WALMART ASSOCIATES, INC. AWCC# G902784 FEBRUARY 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//LEWIS_BETTY_G902784_20230228.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LEWIS_BETTY_G902784_20230228.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G 902784 \n \nBETTY A. LEWIS, EMPLOYEE         CLAIMANT \n \nv. \n \nWALMART ASSOCIATES, INC., EMPLOYER     RESPONDENT #1 \n \nWALMART CLAIMS SERVICES, CARRIER/TPA   RESPONDENT #1 \n \nDEATH & PERMANENT DISABILIITY  \nTRUST FUND        RESPONDENT #2 \n \nOPINION FILED FEBRUARY 28, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 18\nTH\n day of January \n18\nth\n,  2023, in Mountain Home, Baxter County, Arkansas. \n \nClaimant is represented by Mr. Frederick S. “Rick” Spencer, Attorney-at-Law, Mountain \nHome, Arkansas. \n \nRespondent  is  represented  by  Mr.  R.  Scott  Zuerker,  Attorney-at-Law,  Fort  Smith, \nArkansas. \n \nThe  Death  and  Disability  Trust  Fund  is  represented  by  Mr.  David  L.  Pake,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \nA hearing was conducted on the 18\nth\n day of January, 2023, and the parties agreed \nat  the  time  of  the  hearing  to  narrow  the  issues  to  determining  the  compensability of  a \nwork-related,  left  hip/leg  and  low  back  injury;  reasonable  and  necessary  medical \ntreatment; reimbursement of out-of-pocket medical expenses; and attorney fees, with all \nother  issues  reserved.  The  Trust  Fund  waived  its  right  of  appearance.  The  parties \nstipulated that the Arkansas Workers’ Compensation Commission had jurisdiction of the \nclaim; that the employer/carrier/employee relationship existed on April 16, 2019, and at \nall  relevant  times;  and  that  the  claimant  earned  an  average  weekly  wage  of  $733.08, \n\nLEWIS – G902784 \n \n2 \n \nsufficient   for   temporary   total   disability   and   permanent   partial   disability   rates   of \n$489.00/$368.00,  respectively.    The  employer  controverted  the  claim  in  its  entirety.    A \ncopy of the Prehearing Order was marked “Commission Exhibit 1” and made part of the \nrecord without objection.        \n The  claimant’s  and  respondents’  contentions  are  all  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \nobjection.  The witnesses consisted of Edward Lewis, the husband of the claimant, and \nBetty A. Lewis, the claimant.  From a review of the record as a whole, to include medical \nreports and other matters properly before the Commission, and having had an opportunity \nto observe the testimony and demeanor of the witnesses, the following findings of fact \nand conclusions of law are made in accordance with Ark. Code Ann. §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That  an  employer/employee  relationship  existed  on  April  16,  2019,  and  all \nrelevant times. \n \n3.  The  claimant  earned  an  average  weekly  wage  of  $733.08,  sufficient  for \ntemporary    total    disability    and    permanent    partial    disability    rates    of \n$489.00/$368.00, respectively. \n \n4.  That  the  claimant  proved,  by  a  preponderance  of  the  evidence,  that she \nsuffered  a  compensable  left  hip/leg  and  low  back  injury  and  is  entitled  to \nreasonable  and  necessary  medical  for  the  treatment,  which  includes  the \npayment  of  any  reasonable  and  necessary, out-of-pocket  medical  expenses \npaid by the claimant.  \n \n5.  The claimant is entitled to attorney fees pursuant to Ark. Code Ann. §11-9-715.  \nThis  Award  shall  bear  interest  at  the  legal  rate  pursuant  to Ark. Code \nAnn. § 11-9-809. \n \n6.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n\nLEWIS – G902784 \n \n3 \n \nREVIEW OF TESTIMONY AND EVIDENCE \n The Prehearing Order along with the prehearing questionnaires of all the parties \nwere admitted into the record without objection.  The claimant submitted medical records \nand the deposition of Dr. Lon Burba as exhibits that were admitted without objection.  The \nrespondents also submitted medical exhibits and the deposition of the claimant, plus a \nCD  video  and  all  were  admitted  without  objection.  The  parties  also  submitted  a  joint \nexhibit which consisted of eighteen (18) pages of a synopsis of the medical records.    \n The claimant’s husband, Edward Lewis, was the first witness to testify.  He testified \nhe had been married to the claimant for fourteen (14) years and she had worked for the \nrespondent for twenty-five (25) years. (Tr.pp. 6-7)   The claimant had no issues with her \nback, hip, or while walking prior to her injury at Walmart.  He became aware of her injury \non the day of the injury when she called him from home, before going to Sherwood Urgent \nCare.  He got to the clinic first and met her there.  She was talking about her pain, how \nshe had gone home and sat on the couch and couldn’t get up and had difficulty walking. \n“She kept complaining about her back and her neck all the time.”  In regard to before and \nafter  the  injury,  he  stated  that  the  difference  was, “before she had the injury she  was \nactive, she was in quilt groups, she was in like three or four different quilt groups and she \nwas also doing crocheting.  She was all the time active.”  She was unable to do  those \nthings after the accident.  She couldn’t sleep due to the pain. (Tr.pp. 8-10)  He went on to \nstate he quit his job and retired to drive her to the doctors and care for her and the home.  \nHe also remembered she had been in a cooking group prior to her injury. (Tr.p. 11)  She \nnever complained about her back and neck prior to the injury.  He stated that they would \nwalk together, walking about five (5) miles in an hour and thirty (30)  to forty (40) minutes, \n\nLEWIS – G902784 \n \n4 \n \nafter work two (2) times a week on average. (Tr.p. 12)  After the accident she received \nsixteen  (16)  shots,  and  sometimes  after  the  shots,  she  was  unable  to  do  anything. \n(Tr.p.13)  The sixteen (16)  or seventeen (17) shots gave her a slight relief.  “Now she’s \nfair.” \n Under cross-examination, Mr. Lewis admitted he remembered when the claimant \nfell in the bathroom and hurt her leg and strained, “her, I think it’s MCI or MCL.”  He also \nadmitted going with her to the doctors. (Tr.pp.14-15) \n On  re-direct, he  remembered  her  telling  the  doctors  she  had  slipped  in  the \nbathroom and had pain in  her leg and knee area. (Tr.p.16)  He stated now, if  we go to \nLittle  Rock, we  have  to  stop  more  than  usual  because  when  she  would  get  still  she \ncouldn’t walk.  He helped her from the car to the exam room.  If she walked by herself, \nshe would get shaky and “couldn’t stand.” (Tr.p. 17) \n The claimant was then called and testified she had worked for Walmart for twenty-\nfive (25) years and worked in different jobs.  She was working at CAP, a stocker, when \nshe  was  injured.    Her  job  was  to  place  freight  on  the  shelfs.  (Tr.pp.18-19)    She  was \nstocking groceries when she was injured.  She would sometimes lift over fifty (50) pounds. \n(Tr.p.20)  The cart that was involved was an upright metal cart with little blue baskets in \nit that could weigh anywhere from one hundred (100) pounds or above depending on how \nmany groceries the on-line person put on it.  She stated she was prescribed the cane she \nhad with her on the day of the hearing because she had balance issues.  (Tr.p.21) \n When the injury happened, “it was like a snap instant, and it was like, I don’t know \nthat  I  blinked  for  a  snap,  and  I  remember  I  thought  I  got  shifted,  it  happened  so fast.”  \n“When I got injured, I remembered a sharp pain.  And after that sharp pain, I thought it \n\nLEWIS – G902784 \n \n5 \n \nwould just go away, but it didn’t.”  So  when  I  went  and  sat  down,  I  took  a  fifteen  (15) \nminute break and I barely could get up.  She went on to provide that she felt the pain in \nher lower back and hip.  She thought she  would walk it off but couldn’t. (Tr.p.22)  She \ntalked  to  the personnel  lady and management  took  the  report on a  tablet more  like an \nipad.  Her shift had ended so she was told to go home and place an ice pack on it and \ncall if it got worse.  She called back to the store and was told that she had to report back \nto the store and they had to get the paperwork and stuff together and then took her to the \nSherwood Urgent Clinic. (Tr.p.23)  She made two (2) visits to the Sherwood Clinic and \nwas  placed  on  light-duty  restrictions.    Due  to  the  restrictions,  she  worked  as  a phone \noperator.  She then later returned to work and was told workers’ compensation had denied \nher  claim and  she  had  to  return to  her  regular  duty,  and  that  she knew her  limitations.  \nShe then returned to her regular job.  She had a real bad issue when walking and this \nwent on with her job till August 30\nth\n.  She thought that she was fifty-eight (58) at the time \nof  her  injury  and  was  now  sixty-two  (62).  (Tr.pp.24-25)    She  also  testified  she  had \nobtained a college degree in Early Childhood Development, and had performed volunteer \nwork with her degree but worked at Walmart for better pay.  It was her understanding her \nclaim was denied due to her old injuries.  She agreed she never had any major problem \nwith her back or hip in walking or standing, prior to the injury.  She went on to state the \ncart struck her on the left side.  She did not realize she had been spun around until she \nsaw the video of the injury. (Tr.pp.26-27) \n She stated she was told to go to her own doctor and went to Dr. Kevin Falwell, her \nfamily physician.  He sent her to a sports doctor who was the same one she went to when \nshe injured her knee after the slip and fall in the bathroom.  He sent her for an x-ray of \n\nLEWIS – G902784 \n \n6 \n \nher  hip  and  lumbar  area.  (Tr.p.28)    She  returned  to  him  for  the  x-ray  results  and  he \nreferred  her  to  a pain doctor.   She  then  returned  to her  family  doctor  and requested a \nreferral somewhere else and was sent to Dr. Burba. (Tr.p.29)  She felt Dr. Burba knew \nthe  most  about  her  and  her  balance  problems.    (Tr.p.30)    After  her  injury  in  April,  she \nworked until August of 2019.  She denied working since leaving Walmart. (Tr.pp.32-33)  \n Under  cross-examination,  the  video  was reviewed  and  it  appeared  that  the \nclaimant was stocking the packaged lunch meat isle with the video starting at 11:36:08 \n(Tr.p.36)  The video was restarted at 11:50:40 and was then jumped to 11:52:01 and the \nclaimant  stated  she  thought  the  blue  cart  in  the  video  was  the  cart  in  question. \n(Tr.pp.38-39)    She  agreed  the  video  showed  the  cart  striking  her  between  11:52  and \n11:52:21.      She  continued  working  in  the  area  until  11:55:48.    She  stated  she  could \nremember immediate pain and felt something pop. (Tr.pp.40-41)  It did not immediately \nimpact her ability to work, “even though I had pain I kept working because I was trying to \nget the freight out before it stayed out there too long.”  When it spun me around so fast, \nit was like I lost conscious or something for a second. (Tr.p.42)  She felt more pain when \nshe put weight on her leg while going to her break, and after sitting down limped more \nwhen she got back up. \n The video provided that the claimant left the view of the camera at 11:58:48 and \nreturned at 12:05, when she continued to stock.  The video showed her going through a \ndoorway to receiving at 12:05:30, and the claimant testified she had to go in a cooler to \nget out the freight which she needed to work with. (Tr.pp.43-44)  She came back into view \non the video at 12:07, and felt that at that time, she had not told anyone about her injury. \n(Tr.p.45)  She agreed she never reappeared on screen after 12:07:50-ish because she \n\nLEWIS – G902784 \n \n7 \n \nwent on break.  The more she walked, the more it hurt, and she figured she needed to \nreport it. (Tr.p.46) \n The claimant was then questioned about an earlier injury when she fell in a shower \nand was treated by Dr. Angel.  She denied falling in the shower but stated she slipped \nwhile getting out.  She denied hurting her back at the time.  She was questioned why Dr. \nAngel requested a MRI of her back, and the claimant responded that he didn’t request a \nMRI  of  her  back  at  that  time  but  only  requested  a  MRI  of  her  back  when  the  Walmart \ninjury  occurred.    She was  then  questioned about  the medical  record  of  April 16,  2018, \nexactly one year prior to being hit by the cart at Walmart, that requested an MRI of the \nlumbar spine and her leg.  She recalled an x-ray of her back and a MRI of her knee.  She \ndid not remember tenderness in her back.  She was also questioned about going to the \nSherwood Clinic in June of 2018 complaining of back pain.  She responded that she did \nnot recall the dates but did recall that it was for a sprained muscle and if she received a \nsteroid injection, it was for a sinus infection. (Tr.pp.48-49) \n She  was  also  questioned  about  seeing  a  physician’s  assistant  whose  report \nprovided her  left  hip  pain  began  gradually  overtime,  and  she  denied  the  statement. \n(Tr.p.50)   In regard to a statement to Dr. Burba, she stated she had been, “struck by a \ncart at work.”  She also agreed she continued to work at Walmart until August 30, 2019, \nwhen she was terminated.  She admitted receiving short-term disability benefits and then \nlater long-term disability benefits, which she was no longer drawing.  She also admitted \nbeing approved for social security disability benefits. (Tr.p.52)   She had to return a portion \nof the long-term disability payments when she was approved for social security disability. \n(Tr.p.53) \n\nLEWIS – G902784 \n \n8 \n \n On re-direct, the claimant testified that Walmart wanted over $20,000 back from \ntheir self-insured, long-term disability policy and she had to pay it back. (Tr.p.54)       \n The medical and documentary evidence presented herein has been reviewed in \nits entirety, including the introduced video at the times described in the testimony and the \nrelevant parts are discussed below.   \nThe  claimant  introduced  seventy-six  (76)  pages  of  medical  that  was  admitted \nwithout objection.  The respondents introduced thirty-five (35) pages of medical records \nthat  were  also  admitted  without  objection.  A  joint  synopsis  of  the  medical  records  was \nintroduced by  the  parties  to  assist  the  Commission.      A progress note  from  Dr. Jeffery \nAngel dated April 16, 2018, provided that the claimant presented for a follow-up for left \nknee pain.   The  claimant  had fallen  in  the  bathroom on  February 6,  2018,  twisting her \nknee.  Her pain developed suddenly, and she was treated with physical therapy. (Resp. \nEx. 1, p. 1) \nA  report  from  Amanda  Cowell,  APN,  of  Sherwood  Urgent  Care  dated  June  11, \n2018, provided the claimant presented with a headache and back pain. A steroid injection \nwas given along with a Z-pack. (Resp. Ex. 1, pp. 2-4)    \nThe  claimant  presented  to  Dr.  Falwell, her  family  practice  physician  on  May  7, \n2019,  with  a  complaint  of  lower  back  pain,  less  than  a  month  after  the  April  16,  2019, \nwork-related cart incident.  The report provided the claimant received an x-ray of the lower \nback  and  hip  which  appeared  normal.    The  claimant  received  steroids  and  muscle \nrelaxers. (Cl. Ex. 1, pp. 1-3)  The claimant returned to Dr. Angel on May 22, 2019.   An \nMRI provided for degenerative disc disease in regard to the back and the MRI of the femur \nwas  negative.  (Resp.  Ex.  1,  pp.  5-7)    The  claimant  returned  to  Dr.  Falwell  on  July  30, \n\nLEWIS – G902784 \n \n9 \n \n2019,  with a complaint of  head and sinus congestion and lower back pain.  The report \nprovided that the hip had a full range of motion, but with tenderness.  She did not want \ninjections but was scheduled for physical therapy.  (Resp. Ex. 1, pp. 8-10)  She returned \nto Dr. Falwell on August 19, 2019, with a complaint of low back pain and also described \nepisodes  of  right  upper  limb  numbness.  Physical  therapy  was  not  helping  and  she \nrequested a referral to neurology. (Cl. Ex. 1, pp. 4-6) \n A letter dated August 30, 2019, from Dr. Burba, who the claimant was referred to \nby Dr. Falwell, provided she, “was hit by a cart in the left hip and back and since then has \nhad  a  burning  sensation  in  the  hip  and  abdominal  area  that  radiates  into  the  legs  and \ntoes.”  The letter also mentioned numbness in the right arm and that her balance was off.  \nThe letter also referred to swelling in all the claimant’s joints. (Cl. Ex.1, pp.7-8) (Resp. Ex. \n1, pp.11-12)  An MRI dated September 26, 2019, of the left hip and pelvis, provided no \nsignificant left hip cartilage femoral stress reaction, fracture, or osteonecrosis.  There was \nmild blunting of the labrum.  Mild left trochanteric bursitis was noted without significant \ngluteal tendinopathy or a gluteal tendon tear.  Additionally mild bilateral gluteal tendinosis \nalong with mild gluteal tendinosis without a tear, was noted.  No abnormality was detected \nalong  the  sacral  plexus  and  proximal  sciatic  nerves.  (Cl.Ex.1,  p.9)  The  claimant  also \nreceived a fluoroscopically guided left hip injection  by Dr. William Henry on October 30, \n2019. (Cl. Ex.1, p.13) \n The claimant made four (4) visits to Kenneth Weaver, PAC, from October 11, 2019, \nthrough December 19, 2019.   During these visits, she received  fluoroscopically guided \ninjections  and  the  final  report  provided  there was  unspecified  generalized  left  hip  pain \n\nLEWIS – G902784 \n \n10 \n \nwith  a  stable  exam  and  no  evidence  of  pathology  during  the  physical  exam  or  other \nmodalities of evaluation. (Cl. Ex.1, pp.10-1 9)  (Resp. Ex. 1, pp.13-15)    \n A chart note from Dr. Burba dated March 3, 2020, provided the claimant had three \n(3) different sources of pain in her left leg: (1) Compression at the anterior superior iliac \nof the superficial femoral cutaneous nerve which had roots from the lumbosacral spine. \n(2)  Intertrochanteric bursitis demonstrated by the orthopedic surgeon on the MRI. (3)  A \nherniated disc and the root probably played a role as well. (Cl. Ex. 1, p. 20)  (Resp. Ex. \n1, p. 20) \n The claimant had a telehealth visit with Dr. Burba during the COVID pandemic on \nApril  22,  2020, and  later  on  May 19, 2020.  The  April  report  provided  there  was  \nmild  L4-5  foraminal  stenosis  and  L4  radiculitis  and  left  bursitis.    The  report  went  on  to \nprovide  that  several  different  pain  medications  were  recommended  but  the  claimant \ndeclined.  The claimant was set up with Dr. Schlesinger for epidural steroids.  The May \nreport  provided  that  a  pain  consult  with  Dr.  Roman,  who  will perform  epidurals,  was \narranged. (Cl. Ex.1, pp. 21-24) \n The claimant presented to Dr. Roman on June 16, 2020.  The report provided the \nclaimant maintained she suffered low back pain but there was no pain tenderness and \nher  muscle  tone  was  appropriate  and  symmetric.    He  opined  that  the  MRI  was  not \noverwhelming  and  did  not  indicate  surgery.   Dr. Roman’s final  diagnosis  was  lumbar \nradiculopathy, low back pain, lumbar disc disease, multilevel facet disease, and current \nlong-term use of medication. (Cl. Ex. 1, pp. 25-26) \n On June 26, 2020, the claimant had another telehealth visit with Dr. Burba.  Under \nimpression, the report provided most of her problems were the result of degenerative disc \n\nLEWIS – G902784 \n \n11 \n \ndisease,  made  worse  by  trauma  causing  sciatica.     This  probably  resulted  from \nlumbosacral plexitis due to the trauma of the cart hitting her while at work and related to \nher fibroid tumors. (Cl. Ex.1, pp. 27-28) \n The claimant returned to Dr. Roman on July 6, 2020, for a facet joint injection. (Cl. \nEx.1, pp. 29-30)  On July 29, 2020, he performed a rhizotomy at L3-4, L4-5, and L5-S1.  \nThe report went on to provide that the MRI showed mild to moderate loss of disc height \nwith  a  bulge at the L3-4 level  and L4-5 level.  The  symptoms were correlative with an \nL3-4 dermatome distribution which correlated with the EMG findings.  His final diagnosis \nwas  lumbar  radiculopathy,  low  back  pain,  lumbar  disc  disease,  lumbar  spondylosis, \nmultilevel facet disease, and chronic long-term use of medications. (Cl. Ex. 1, pp. 31-32) \n The  claimant  returned  to  Dr.  Burba  on  August  13,  2020,  who  opined  that  the \nchronic  pain  syndrome  was  due  to  trauma,  radiographic  evidence  of  intertrochanteric \nbursitis,  and  gluteal  tendinosis,  along  with  fibroid  tumors,  with  bilateral  tarsal  tunnel \nsyndrome and L-4 radiculitis on the left causing sciatica. (Cl. Ex. 1, pp. 33-34) \n The claimant returned to Dr. Roman three (3) times from August 24, 2020, through \nDecember 7, 2020, for transforaminal epidural injections and a trochanteric hip injection. \n(Cl.  Ex.1, pp.  35-46)    The  claimant  received  a  bone  scan  ordered  by  Dr.  Burba  on \nDecember 9, 2020, and the report provided for a normal whole-body scan. (Resp. Ex. 1, \np. 20)   The claimant then  had another telehealth visit with Dr. Burba on December 11, \n2020.  This  report  provided  that  the  claimant  suffered  from  chronic  pain  syndrome, \nintertrochanteric  bursitis,  tendinosis,  fibroid  tumors,  and  possible  demyelinating  poly \nneuropathy,  with  a  mononeuritis  multiple  distribution,  and  that  the  changes were  mild, \nwith lumbosacral radiculitis. (Cl. Ex 1, pp. 47-48) \n\nLEWIS – G902784 \n \n12 \n \n The claimant returned to Dr. Roman on December 21, 2020, January 9, 2021, and \nMarch 16, 2021.  She received a transforaminal epidural injection of the neural foramen \nat L5-S1  on  the  left  side on  December  21, 2020.   A  clinic  note  dated March  16,  2021, \nprovided the claimant suffered from left hip pain, greater trochanteric bursitis of the left \nhip, long-term medication use, lumbar spondylosis, lumbar disc bulges at L3-4, and L4-5 \nalong with low back pain. (Cl.Ex.1, pp. 49-53) (Resp. Ex. 1, p. 21) \n The  claimant  had  a  follow-up  visit  with  Dr.  Tucker  on  March  30,  2021,  and  an \nextensive lumbar work up did not lead to relief of the hip pain.  The injections provided \nsome  relief,  but  the  physical  therapy  was  unbearable.    On  April  6,  2021,  the  claimant \nfollowed up with Dr. Tucker and the report provided that the claimant obtained no relief \nfrom the intra-articular injection but that the greater trochanteric bursa injection provided \nfor a few days of relief. (Resp. Ex. 1, pp. 22-28)  \n The claimant again visited Dr. Burba on May 20, 2021.  The report provided the \nclaimant  had  chronic  pain  syndrome of  the  left  hip  and  back  secondary  to  trauma  as \ndescribed in the previous notes. The report also found the claimant very tender over the \nintertrochanteric  bursa.  Dr.  Burba  went  on  to  state  that  he  did  not  see  any definitive \nneurologic issue to treat. (Cl. Ex. 1, pp. 54-55) (Resp. Ex. 1, pp. 29-30) \n The claimant returned to Dr. Roman on June 15, 2021, and the report provided the \nclaimant was hit by a shopping cart and the MRI of the left hip showed no fracture, no hip \ndislocation, and no significant arthritis.  She had some disc disease and still complained \nof hip pain.  His final diagnosis was left hip pain, greater trochanteric bursitis of the left \nhip,  long-term  use  of medications,  lumbar  radiculopathy,  and  lumbar disc disease.  (Cl. \nEx. 1, p. 56) \n\nLEWIS – G902784 \n \n13 \n \n Another MRI of the left hip was obtained on July 2, 2021, due to the left hip pain, \nand it provided for mild to moderate osteoarthritis with a small physiological fluid in both \nhips and moderate chondral thinning at the hips. (Resp. Ex. 1, p. 31)  Dr. Tucker stated \non July 6, 2021, that the claimant reported absolutely no relief from the greater trochanter \nbursal injection or the physical therapy.  There were no signs of bursitis or inflammation \nof the greater trochanter area. (Resp. Ex.1, pp.32-35) \n The claimant had another telehealth visit with Dr. Burba on August 20, 2021.  The \nreport provided the claimant’s EMG revealed an early demyelinating motor and sensory \npolyneuropathy with a mononeuritis multiplex type distribution and chronic denervation at \nmultiple sites in the LS spine, possibly related to degenerative disc disease.  Her MRI of \nthe left femur was unremarkable.  He again mentioned her fibroids and opined she was \nunable to work due to her pain. (Cl. Ex. 1, pp. 57-58)  The claimant again returned to Dr. \nRoman on October 5, 2021, who provided the same diagnosis as previously stated and \nmentioned the opiate use of tramadol. (Cl. Ex. 1, p. 59)  The claimant continued to return \nto Dr. Burba with an office visit on October 5, 2021, and a return visit to Dr. Roman on \nNovember 24, 2021, for injections. (Cl. Ex. 1, p. 60) \n On  October  29,  2021,  Dr.  Burba  signed  a  document  which provided, “It is my \nopinion with a reasonable degree of medical certainty (51% or greater) that the injuries \nshe sustained while working for Walmart, when she was struck by an on-line grocery cart \non April 16, 2019, necessitates the medical treatment I am providing.”  (Cl. Ex. 1, p. 63) \n The  claimant  then  returned  to  Dr.  Roman  on  November  11,  2021,  for  another \nepidural injection.  The report provided for lumbar radiculopathy, lumbar disc disease at \n\nLEWIS – G902784 \n \n14 \n \nthe L3-L5, and lumbar spondylosis along with greater trochanteric bursitis of the left hip.  \n(Cl. Ex. 1, pp. 61-62) \n The claimant continued to follow-up with Dr. Burba on February 21, 2022. (Cl. Ex. \n1,  pp.  64-65)    The  report  provided  the  claimant  returned  with  tenderness  over  the  left \nintertrochanteric bursa with appreciable swelling. The report also stated that they would \nrepeat inflammatory markers to insure there was no underlying autoimmune process and \nthere would be continued pain control with Dr. Roman. \nIn regard to Dr. Roman, the claimant had follow-up visits on February 21, April 1, \nMay 25, August 30, April 29, 2022, and November 29, 2022.  The final diagnosis of record \nby Dr. Roman provided for lumbar radiculopathy of the left L5-S1, low back pain, lumbar \ndisc disease at L4-L5, and L5-S1, cervical disc disease, lumbar spondylosis, generalized \nosteoarthritis, and long-time use of medications including tramadol. (Cl. Ex. 1, pp. 66-67, \n68-76) \nIt was also noted that the last MRI of record was on March 17, 2022.  The report \nprovided there was mild left hip osteoarthritis with tearing at the anterior superior labrum \nwith  no  paralabral  cyst.  Additionally  there  was  mild  right  hip  osteoarthritis  and  right \ngreater  trochanteric  bursal  distension/bursitis  along  with  possible  fibroids.  (Cl. Ex. 1, \npp. 68-69)    \n The claimant also introduced the deposition of Dr. Burba taken on June 8, 2022, \nwhich  included  medical  records.    He  testified  he  was  board  certified  by  the  American \nBoard of  Psychiatry and  Neurology but  stated  that  it  was  really  Adult  Neurology and  a \nsub-certification of the American Board of Psychiatry and Neurology, and that he does no \npsychiatry, only adult neurology.  He went to medical school at Oklahoma University and \n\nLEWIS – G902784 \n \n15 \n \ngraduated in 1976.  He had seen the claimant a number of times and about a third of the \ntime, they were in person due to the fact that this was in the middle of the pandemic. (Cl. \nEx. 2, pp. 5-6)  He had quickly scanned the claimant’s chart prior to the deposition.  The \nlast  time  he  had  seen  the  claimant  was  February  21,  2022,  with  some  later  telephone \ncalls.  Dr.  Burba  provided nothing had changed about the claimant’s condition or her \ntreatment on the last February visit. (Cl. Ex. 1, pp. 8-9)   \nHe was questioned about the “To-Whom-It-May Concern” letter,  and  he  agreed \nthe letter had been drafted by the claimant’s attorney and he signed it.  It provided for an \nabnormal EMG/NCV and a positive Laesigue’s and also an MRI of the cervical spine.  He \nagreed  it  provided  with  a  reasonable  degree  of  medical  certainty  that  the  injuries  the \nclaimant sustained while working for the respondent and was struck by an online grocery \ncart on April 16, 2019, necessitated the medical treatment he had provided.  He went on \nto opine that the worst of her injuries was the unresolved intertrochanteric bursitis of the \nleft hip.  The MRI showed bursitis in that area, and it had not resolved over this long period \nof time.  Generally, bursitis would resolve but this one hadn’t. “Objectively, I can feel heat \nin  that  intertrochanteric  bursa  through  the  skin.    I  can  feel  fluctuation  or  sort  of  an \nedematous or swollen feeling there, and there’s crepitus in the joint when you move the \nleg around.  So it’s not just her complaining about it.” (Cl. Ex. 2, pp. 10-12)  He felt ninety \npercent  (90%)  of  her  problems  were  due  to  the  accident.    He  admitted  she  had some \ndegenerative  disc  disease  but  stated  everyone  suffered  from  that.   She  had  some \nlow-grade  neuropathy  and  a  few  disc  protrusions.  She  also  had  some  mild-grade \ntendinosis and sometimes this happened secondary to an injury, due to other joints and \nmuscles  compensating  for  the  area  that was  inflamed.  “The joint itself did not show \n\nLEWIS – G902784 \n \n16 \n \nrheumatoid arthritis or cancer or any of the other medical issues that we normally see in \nthis  age  group,  and  so  this  -  -  this  looks  like  a pure traumatic  injury  to  the  left hip  and \nprimarily in the trochanteric bursa.” (Cl. Ex. 2, pp.13-14)  Under further questioning, he \nadmitted he did not see the accident happen.  “I don’t know -- you know, in my mind, you \nknow, a cart bumping against a hip, you know, to cause this kind of thing, I just can’t \nconceive of -- if why this continues to go on, unless that cart was really moving or that \ncart was really heavy or -- or had a massive unexpected blow where she was unprotected.  \nYou  know,  there  must  have  been  a  lot  of  energy  transfer  to  cause  this degree  of \ninflammation in that joint.”  Dr. Burba agreed that he was operating on the assumption \nthat there was “a lot of energy transfer.” (Cl. Ex. 2, pp.18-19) \nUnder questioning by the claimant’s attorney, Dr. Burba agreed that a trauma could \ntrigger the problems that he was seeing with the claimant. (Cl. Ex. 2, p. 21) \nUnder  further  direct-examination by the respondent’s attorney, Dr. Burba was \nquestioned about the claimant being hit by a heavy cart and “it knocked her for a loop.”  \nHis response was “I don’t know that.  I don’t know if --  you  know,  if  the  was  wedged \nbetween something that kept her from moving, you know, if she, had like a crush injury; \nor if  -- you know, if she was in a very fragile position, like reaching and stretching on one \nfoot,  you  know,  and  leaving  her  unable  to  protect herself;  if  she  saw  it,  ahead  of time, \ncoming so she could take evasive action and got more a glancing blow than a direct hit.  \nAll of those things play a role, and I don’t know the answer to that question.”  (Cl. Ex. 2, \np. 21)  Dr. Burba was also questioned about the claimant’s other health issues.  He stated \nthat her polyneuropathy was unrelated to the accident. (Cl.Ex.2, p.33)  He was questioned \nif  his  findings  were  based  upon  the  history  that  he  was  given  about  the  accident.    He \n\nLEWIS – G902784 \n \n17 \n \nresponded that it was based upon the history and, “also the objective markers, the MRI \nscan, the EMG, and especially, the physical exam.”  (Cl. Ex. 2, p. 36) \nThe  respondents  exhibit  1  which  contained  the  medical  they  introduced  is \ndiscussed above.  The respondents also submitted a deposition taken on December 5, \n2019, of the claimant into the record without objection.  The claimant was fifty-nine (59) \nyears old at the time of the deposition with her birthday on November 3, 1960. (Resp. Ex. \n2,  p.7)  She worked on the cap team at the time of the accident at Walmart.  The cap \nteam worked in different areas displaying freight and climbing up and down ladders.  The \nclaimant  stated  she  was  working  grocery  at  the  time  of  the  accident.  (Resp. Ex. \n2,   pp.18-20)  She was bent over stocking dairy sandwich meat at the time of the accident.  \nShe would down stack the meet to a pallet and then down stack the meet to a “rocket \ncart.”  She was bent over at the waist stocking the meat and got hit by an “online grocery \ncart.”  The cart is metal with individual baskets and larger than the carts the customers \ngrab. (Resp. Ex. 2. pp. 27-29)  The cart hit her in the leg and she called it to the attention \nof the online order filler pushing the cart.  It hit her in the leg, thigh, and hip while she was \nbent over, hitting her more to the side.  She thought the person pushing the cart did not \nnotice he hit her, but when she got his attention, he stated he was sorry.  She sat there \nfor a minute and attempted to regroup because she was shocked.  She stated she felt a \nsharp pain or pop and then went to take her break and when she stood up from the break, \nshe had trouble getting up.  It was her hip and lower back.  She hurt in her hip and back \nwhile sitting during the break.  She then went and reported the accident to her personnel \nmanager. (Resp. Ex. 2, pp. 31-35) \n\nLEWIS – G902784 \n \n18 \n \nShe went home after work that afternoon and when the pain worsened, she called \nwork and was told to return and was taken to Sherwood Urgent Care.  At Urgent Care, \nshe was seen by Amanda Crowell, a nurse practitioner, who ordered an x-ray but did not \nprovide  any  medication.    She  was  not  taken  off  work  and  returned  to  work  light-duty.  \n(Resp. Ex. 2, pp. 36-39)  The claimant never returned to Sherwood Urgent Care after the \nsecond  visit  and  then  went  to  her  family  physician,  Dr.  Falwell,  and  continued  to  have \nproblems.  He recommended an orthopedic physician, Dr. Angel.  She also admitted to \nreceiving four (4) to six (6) weeks of physical therapy. (Resp. Ex 2, pp. 41-42)  Dr. Angel \nreferred her to a pain clinic but she didn’t get to go, so she returned to her family doctor \nwho referred her to an orthopedic doctor in Little Rock.  She also remembered going to a \n“nerve” doctor in Little Rock who performed a nerve conduction study and she thought \nthe  physician  was  Dr.  Burba.    Dr.  Burba  then  sent  her  to  a  different  orthopedist,  Dr. \nWeaver, who performed a hip injection.  The injection relieved some of the pressure and \npain  but  did  not  solve  the  problem.    She  would  receive  a  few  hours  of  relief from  the \ninjections and some improvement the next day. (Resp. Ex. 2, pp. 43-46) \nThe  claimant  testified  she  was  having  pain  in  her  neck,  lower  back,  and her \nbuttocks on her left side at the time of the deposition.  “And my whole -- and my hip, and \nmy thigh part of my leg, my whole left leg down to my knee and my toes, if I can recall all \nof it.” (Resp. Ex 2, p.50)  She admitted being able to  perform house cleaning, cooking, \nlaundry,  and  driving.  (Resp.  Ex.  2,  p.52)      She  could not  recall  having  trouble with  her \nneck prior to April 16\nth\n, but admitted seeing a doctor for her back.  She stated she had a \nfa ll as a teenager.  She had never seen a doctor for her left hip, but had seen a doctor for \n\nLEWIS – G902784 \n \n19 \n \nher left knee in 2018 when she slipped and fell in the bathroom, getting ready for work \nand spraining her MCL. (Resp. Ex. 2, pp. 53-54) \nThe respondent also admitted a DVD of the actual incident involving the claimant \nbeing hit by the cart that was recorded on in store cameras.  It was admitted as Exhibit 3 \nwithout  objection.    The  video  was  reviewed  multiple  times  from  the  claimant’s  first \nappearance on the video at approximately 11:35:38 until approximately 12:07 when the \nclaimant  went  for  break.    The  claimant  initially  appeared  in  the  video  at  11:35:38, \napparently walking out of a door to the cart that she was going to use stocking the shelves.  \nShe started stocking at approximately 11:36:20, making multiple trips between her cart \nand the store display case.  At 11:37:10, she stood on one leg and even crawled on top \nof the front ledge of the display case, getting on both knees on the ledge, to place items \nwhere she had trouble reaching.  Although the video is somewhat jerky due to the method \nof filming or storage, she appeared to ambulate well with a fluid gait and solid stance.  At \n11:52:20,  the  cart  in  question  was  pulled  past  the  claimant  and  the  rear  of  the  cart \nfishtailed and struck the claimant in what appeared to be a light and glancing blow to the \nclaimant’s left side.  The claimant  continued  to  work  but after multiple  viewings,  it  was \nobserved that her gait and stance changed slightly after the incident.  \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nIn regard to the primary issue of compensability, the claimant has the burden of \nproving, by a preponderance of the evidence, that she is entitled to compensation benefits \nfor the injury to her left hip/leg and low back under the Arkansas Workers’ Compensation \nLaw.    In  determining  whether  the  claimant  has  sustained  her  burden  of  proof,  the \nCommission shall weigh the evidence impartially, without giving the benefit of the doubt \n\nLEWIS – G902784 \n \n20 \n \nto either party.  Ark. Code Ann. § 11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, \n768 S.W. 2d 521 (1989).  Further, the Commission has the duty to translate evidence on \nall issues before it into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 \nArk. App. 344, 925 S.W.2d 179 (1996). \nFrom the medical reports submitted by both the claimant and the respondents,  it \nappears that the claimant clearly suffered from various conditions in regard to her lower \nback and left hip/leg prior to the accident, plus additional issues that many people her age \nsuffer.  A pre-existing disease or infirmity does not disqualify a claim if the employment \naggravated,  accelerated,  or  combined  with  the  disease  or  infirmity  to  produce  the \ndisability for which compensation is sought.  See, Nashville Livestock Commission v. Cox, \n302 Ark. 69, 787 S.W.2d 864 (1990);  Conway Convalescent Center v. Murphee, 266 Ark. \n985,  585  S.W.2d  462  (Ark.  App.  1979);   St.  Vincent  Medical  Center  v.  Brown,  53  Ark. \nApp. 30, 917 S.W2d 550 (1996).  The employer takes the employee as it finds him or her.  \nMurphee, supra.  \nThe claimant in a work-related incident, was hit a glancing and light blow by a cart.  \nShe went home after finishing her shift, but testified she was in pain and on the same day \nof the incident, contacted the respondent while she was at home, and was instructed to \nreturn  to  the  workplace  to  fill  out  paperwork,  and  was  then  taken  to  Sherwood  Urgent \nCare.  The claimant was treated there and later received multiple MRI’s that discovered \na variety of health issues which included degenerative disc disease, lumbar spondylosis, \nmultilevel facet disease, fibroids, arthritis, and bursitis.  She also received treatment by \nmultiple  physicians  but  appeared  to  be  primarily  treated  by  Dr.  Roman  who  provided \nmultiple epidural injections and a rhizotomy, and Dr. Burba. \n\nLEWIS – G902784 \n \n21 \n \nA  compensable  injury  must  be  established  by  medical  evidence  supported  by \nobjective findings and medical opinions addressing compensability and must be stated \nwithin  a  degree  of  medical  certainty. Smith-Blair,  Inc.  v.  Jones,  77  Ark.  App.  273,  72 \nS.W.3d 560 (2002).  Speculation and conjecture cannot substitute for credible evidence.  \nLiaromatis v. Baxter County Regional Hospital, 95 Ark. App. 296, 236 S.W.3d 524 (2006).  \nMore  specifically,  to  prove  a  compensable  injury,  the  claimant  must  establish,  by  a \npreponderance  of  the  evidence:  (1)  an  injury  arising  out  of  and  in  the  course of \nemployment;  (2)  that  the  injury  caused  internal  or  external  harm  to  the  body  which \nrequired  medical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence \nsupported by objective findings, as defined in Ark. Code Ann. §11-9-102 (16) establishing \nthe injury and (4) that the injury was caused by a specific incident and identifiable by time \nand  place  of  occurrence.    If  the  claimant  fails  to  establish  any  of  the  requirements  for \nestablishing  the  compensability  of  the  claim,  compensation  must  be  denied.   Mikel  v. \nEngineered Specialty Plastics, 56 Ark. App. 126, 938 S.W.2d 876 (1997).  \nDr. Burba signed a document stating, “It is my opinion with a reasonable degree \nof  medical  certainty  (51%  or  greater)  that  the  injuries  she  sustained  while  working  for \nWalmart, when she was struck by an online grocery cart on April 16, 2019, necessitates \nthe medical treatment I am providing.”  This led  to  his  deposition and  in  explaining  his \nthoughts in regard to the document he signed, he stated his opinion was based upon the \nhistory and “also the objective markers,  the  MRI  scan,  the  EMG,  and  especially,  the \nphysical exam.”  In regard to the actual severity of the cart bump he stated, “I don’t know \nthat.  I don’t know if -- you know, if  she was wedged between something that kept her \nfrom moving, you know, if she, had like a crush injury; or if -- you know, if she was in a \n\nLEWIS – G902784 \n \n22 \n \nvery fragile position, like reaching and stretching on one foot, you know, and leaving her \nunable to protect herself; if she saw it, ahead of time, coming so she could take evasive \naction and got more a glancing blow than a direct hit.  All of those things play a role, and \nI don’t know the answer to that question.”  He  opined  that  trauma  could  cause  the \nproblems that he was seeing in the claimant. \nHere, the video of the incident was viewed multiple times and showed the claimant \nimmediately before and after the incident.  The claimant suffered what clearly appeared \nto be a light glancing blow to the left side of her body.  After multiple reviews of the video, \nit is determined that it shows the fluidity of the claimant’s gait along with her stance and \nher ambulation changed slightly after the incident and that this corresponds to the opinion \nissued by Dr. Burba, as well as the testimony by the claimant.  Dr. Burba issued an opinion \nthat was backed up by his deposition as to the cause of the claimant’s problems and the \nCommission has the authority to accept or reject medical opinions.  Williams v. Ark. Dept. \nof Community Correction, 2016 Ark. App. 427, 502 S.W. 3d 530 (2016) \n  Consequently, it is found that the claimant has satisfied the above requirements \nand has proven, by a preponderance of the evidence, she suffered a work-related injury \nto  her  left  hip/leg  and  low  back.    In  regard  to  medical  treatment,  the  employer  shall \npromptly provide for an injured employee such medical treatment as may be reasonable \nin  connection  with  the  injury  received  by  the  employee.  Ark.  Code  Ann.  § 11-9-508(a).  \nThe  employee  has  the  burden  of  proving,  by  a  preponderance  of  the evidence,  that \nmedical treatment is reasonably necessary.  Stone v. Dollar General Stores, 91 Ark. App. \n260, 209 S.W.3d 455 (2005)  What constitutes reasonably necessary medical treatment \nis a question of fact for the Commission.  Wright Contracting Co. v. Randall, 12 Ark. App. \n\nLEWIS – G902784 \n \n23 \n \n358, 676 A.W.2d 750 (1984)  Here the claimant has proven, by a preponderance of the \nevidence, that she suffered a compensable work-related injury to her left hip/leg and low \nback and it is found that she is entitled to reasonable and necessary treatment regarding \nthe injury plus the payment of reasonable and necessary out-of-pocket medical expenses. \nBased upon the available evidence, it is found that the claimant has satisfied the \nburden of proof to show she suffered a compensable work-related injury to her left hip/leg \nand  low  back  on  April  16,  2019,  and  is  entitled  to reasonable  and  necessary  medical \ntreatment  plus  the  payment  of  any  reasonable  and  necessary  out-of-pocket  medical \nexpenses paid by the claimant. \nThe claimant and her attorney are entitled to the appropriate legal fees as spelled \nout in Ark. Code Ann. §11-9-715.  This Award shall bear interest at the legal rate pursuant \nto Arkansas Code Annotated §11-9-809.  If not already paid, the respondents are ordered \nto pay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n \n  \n \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":45060,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G 902784 BETTY A. LEWIS, EMPLOYEE CLAIMANT v. WALMART ASSOCIATES, INC., EMPLOYER RESPONDENT #1 WALMART CLAIMS SERVICES, CARRIER/TPA RESPONDENT #1 DEATH & PERMANENT DISABILIITY TRUST FUND RESPONDENT #2 OPINION FILED FEBRUARY 28, 2023 Hearing before Administr...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":["hip","back","neck","knee","lumbar","fracture","herniated","cervical"],"fetchedAt":"2026-05-19T23:10:49.811Z"},{"id":"alj-H201738-2023-02-28","awccNumber":"H201738","decisionDate":"2023-02-28","decisionYear":2023,"opinionType":"alj","claimantName":"Lacey Ludemann","employerName":"Factory Connection, LLC","title":"LUDEMANN VS. FACTORY CONNECTION, LLC AWCC# H201738 FEBRUARY 28, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//LUDEMANN_LACEY_H201738_20230228.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"LUDEMANN_LACEY_H201738_20230228.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H201738 \n \nLACEY P. LUDEMANN, EMPLOYEE          CLAIMANT \n \nFACTORY CONNECTION, LLC, EMPLOYER         RESPONDENT  \n \nTRAVELERS PROPERTY CASUALTY/  \nTRAVELERS INDEMNITY CO.,  \nCARRIER/TPA            RESPONDENT    \n         \nOPINION FILED FEBRUARY 28, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas, on February 28, 2023. \n \nClaimant  is  represented  by  Frederick  S. “Rick”  Spencer,  Attorney-at-Law,  of \nMountain Home, Arkansas. \n \nRespondents are represented by Guy Alton Wade, Attorney-at-Law, of Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on February 28, 2023, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to prosecute  pursuant  to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant contended that she had injured her neck, left side, hips \nand back on or about September 7, 2020, and filed a Form C on February 28, 2022. The \nclaim was denied in its entirety.  More than six (6)  months have passed since the claimant \nalleged that she sustained a work-related injury and she has failed to respond to discovery \nthat was propounded in March of 2022.  A request for the matter to be dismissed was \nmade by  the  respondents  by  letter  on  January  6,  2023.   The  claimant’s  representative \nnotified  the  Commission  that  they  had  lost  touch  with  the  claimant  by  a  letter  dated \n\nLUEDEMANN – H201738 \n \n2 \n \nJanuary 23, 2023.  The representative also ran a Lexis Nexis search and could not find \nany information in regard to the claimant.   \nA hearing was set for February 28, 2023, in regard to the Motion to Dismiss.  The \nclaimant failed to appear at the hearing after proper notice.  At the time of the hearing, \nGuy  Alton Wade appeared  on behalf  of  the  respondents and  asked  that  the matter be \ndismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice at this time.   \nIT IS SO ORDERED: \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2686,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201738 LACEY P. LUDEMANN, EMPLOYEE CLAIMANT FACTORY CONNECTION, LLC, EMPLOYER RESPONDENT TRAVELERS PROPERTY CASUALTY/ TRAVELERS INDEMNITY CO., CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 28, 2023 Hearing before Administrative Law Judge James D. Kennedy i...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2","denied:1"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T23:10:51.940Z"},{"id":"alj-H108542-2023-02-27","awccNumber":"H108542","decisionDate":"2023-02-27","decisionYear":2023,"opinionType":"alj","claimantName":"Marlon Pettigrew","employerName":"Smyrna Ready Mix Concrete, LLC","title":"PETTIGREW VS. SMYRNA READY MIX CONCRETE, LLC AWCC# H108542 FEBRUARY 27, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Pettigrew_Marlon_H108542_20230227.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Pettigrew_Marlon_H108542_20230227.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H108542 \n \n \nMARLON W. PETTIGREW, EMPLOYEE CLAIMANT \n \nSMYRNA READY MIX CONCRETE, LLC, \n EMPLOYER RESPONDENT \n \nTRAVELERS INDEMN. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 27, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on  February 23, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  Guy  Alton  Wade,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  that \nwas filed by Respondents.  A hearing on the motion was conducted on  February \n23,  2023,  in  Little  Rock,  Arkansas.    Claimant,  who  is pro  se,  failed  to appear.  \nRespondents were represented at the hearing by Mr. Guy Alton Wade, Attorney at \nLaw,  of  Little  Rock,  Arkansas.    The  record  consists  of the  Commission’s  file, \nwhich has been incorporated herein in its entirety by reference without objection.  \nAlso  admitted  into  evidence  was  Respondents’  Exhibit  1,  comprised of  forms, \npleadings and correspondence related to this claim, consisting of 24 pages. \n\nPETTIGREW – H108542 \n2 \n \n The  record  reflects  that  per  the  First  Report  of  Injury  or  Illness  filed  on \nOctober  25,  2021,  Claimant  purportedly  was  injured  in  a  work-related  motor \nvehicle  accident  on  October  16,  2021.    According  to  the  Forms AR-2  that  were \nfiled  on  October  26,  2021,  and  April  14,  2022,  Respondents  controverted  the \nclaim in its entirety. \n Attorney Laura Beth York entered her appearance on behalf of Claimant on \nApril 11,  2022;  and  on  that  same  date,  she filed  a  Form  AR-C.    Therein,  she \nrequested the full range of initial and additional benefits and alleged that her client \nhurt his “neck, back, and other whole body” at work on the date in question. \n On  June  8,  2022,  York  moved  to  withdraw  from  her  representation  of \nClaimant.    In  an  Order  entered  on June  21,  2022,  the  Full  Commission  granted \nthe motion under AWCC Advisory 2003-2. \n On  October  14,  2022  ,  Respondents  filed  the  instant  Motion  to  Dismiss.  \nTherein,  they  argued  that  dismissal  was  warranted  under AWCC  R.  099.13  for \n“lack of prosecution” of the claim.  The case was assigned to me on October 18, \n2022; and on October 20, 2022, my office wrote Claimant, requesting a response \nto the motion within 20 days.  The letter was sent by first-class and certified mail \nto  the  address  listed  by  Claimant  on  his  Form  AR-C.    He  signed  for  the  certified \nletter  on  October  26,  2022;  and  the  first-class  letter  was  not  returned  to  the \nCommission.    Regardless, no response  to  the  motion  was  forthcoming.    On \nNovember 30,  2022,  a  hearing  on  the  motion  was  scheduled  for  January  26, \n2023, at 11:3 0 a.m. at the Commission in Little Rock.  Later, on January 20, 2023, \n\nPETTIGREW – H108542 \n3 \n \nthe hearing was rescheduled for the same location on February 23, 2023, at 10:30 \na.m.  The notice was sent to Claimant by first-class and certified mail at the same \naddress  as  before.   In  this  instance,  the  certified  letter  was  claimed  by  him  on \nJanuary 28, 2023; and the first-class letter was not returned.  The evidence thus \npreponderates that Claimant received notice of the hearing. \n The hearing  on the  Motion to  Dismiss proceeded before me as scheduled \non  February 23,  2023.    Again,  Claimant  failed  to  appear.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  of  the  action  under  the \naforementioned authority. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \n\nPETTIGREW – H108542 \n4 \n \nIII.  DISCUSSION \n AWCC 099.13 reads: \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods, 55  Ark.  App.  83,  85,  929  S.W.2d 730.\n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of this \nmatter—by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it  (including  appearing  at  the  February 23,  2023,  hearing  to  argue \nagainst  its  dismissal)  since  the  filing of  his Form  AR-C  on  April 11,  2022.    Thus, \nthe evidence preponderates that dismissal is warranted under Rule 13.  Because \nof this finding, it is unnecessary to address the application of § 11-9-702. \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n\nPETTIGREW – H108542 \n5 \n \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer Co.,   2005  AR Wrk.  Comp. \nLEXIS  5  10,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”    (Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v.  Strong, \n75  Ark.  249,  629  S.W.2d  284  (1982)).  Respondents  at  the hearing  asked  for  a \ndismissal without prejudice.  Based on the above authorities, I agree and find that \nthe dismissal of this claim should be and hereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7289,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H108542 MARLON W. PETTIGREW, EMPLOYEE CLAIMANT SMYRNA READY MIX CONCRETE, LLC, EMPLOYER RESPONDENT TRAVELERS INDEMN. CO., CARRIER RESPONDENT OPINION FILED FEBRUARY 27, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on February 23, 2023, ...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["neck","back"],"fetchedAt":"2026-05-19T23:10:41.466Z"},{"id":"alj-H102482-2023-02-24","awccNumber":"H102482","decisionDate":"2023-02-24","decisionYear":2023,"opinionType":"alj","claimantName":"Buruji Ainab","employerName":"Simmons Prepared Foods Inc","title":"AINAB VS. SIMMONS PREPARED FOODS INC. AWCC# H102482 FEBRUARY 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//AINAB_BURUJI_H102482_20230224.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"AINAB_BURUJI_H102482_20230224.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H102482 \n \nBURUJI AINAB, EMPLOYEE   CLAIMANT \n \nSIMMONS PREPARED FOODS INC., EMPLOYER RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT SERVICES INC.INSURANCE CARRIER RESPONDENT \n \nOPINION/ORDER FILED FEBRUARY 24, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Springdale, Washington \nCounty, Arkansas. \n \nClaimant is not represented and did not appear at the hearing. \n \nRespondents are represented by R. SCOTT ZUERKER, Attorney, Fort Smith, Arkansas \n \nOPINION/ORDER \n \nOn  March 10, 2021, claimant filed Form AR-C, alleging a compensable injury on November \n15, 2019.   Claimant was represented at the time by Wesley A. Cottrell, who filed a Motion to Withdraw \non August 8, 2022 and was allowed to withdraw on September 11, 2022. No other attorney entered \nan appearance on claimant’s behalf.     \nOn September 19, 2022, respondent filed a Motion to Dismiss, alleging that it had been more \nthan six months since claimant filed her Form AR-C with the Commission, but she had not made a \nrequest for a hearing in that time. A hearing on  respondent’s Motion to Dismiss was scheduled for \nFebruary 16, 2023.  Notice of the scheduled hearing was sent to claimant by certified mail at the last \nknown address  in  the  Commission’s  file.    The  notice  was  returned  unclaimed  on  January  23, \n2023    Claimant did not respond to Respondent’s motion and did not appear in person at the hearing \non February 16, 2023.   \nI find it has been more than six months since prior to this hearing and that no request for a \n\nAinab-H102482 \n \n2 \n \nhearing has been made in this file.  After my review of the Respondent’s motion, the Claimant’s lack \nof response and failure to attend the hearing for the Respondent’s motion, as well as all other matters \nproperly before the Commission, I find that Respondent’s Motion to Dismiss this claim should be \nand hereby is granted.  This dismissal is pursuant to Commission Rule 099.13 and is without prejudice. \nIT IS SO ORDERED. \n \n \n      _______________________________________                                                                                   \n      JOSEPH C. SELF \n      ADMINISTRATIVE LAW JUDGE","textLength":2232,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H102482 BURUJI AINAB, EMPLOYEE CLAIMANT SIMMONS PREPARED FOODS INC., EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC.INSURANCE CARRIER RESPONDENT OPINION/ORDER FILED FEBRUARY 24, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF, in Sp...","outcome":"dismissed","outcomeKeywords":["dismissed:3","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:10:35.200Z"},{"id":"alj-H203994-2023-02-24","awccNumber":"H203994","decisionDate":"2023-02-24","decisionYear":2023,"opinionType":"alj","claimantName":"Debra Czech","employerName":"Mcdonald’s","title":"CZECH VS. McDONALD’S AWCC# H203994 FEBRUARY 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CZECH_DEBRA_H203994_20230224.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CZECH_DEBRA_H203994_20230224.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nWCC NO.:H203994 \n \nDEBRA CZECH, \nEMPLOYEE                                                                                                      CLAIMANT \n \nMcDONALD’S,                                                                \nSELF-INSURED EMPLOYER                                                                   RESPONDENT                        \n                                                     \nARKANSAS McDONALD’S SELF-INSURED                        \nTRUST/RISK MANAGEMENT RESOURCES, \nTHIRD PARTY ADMINISTRATOR (TPA)                                                 RESPONDENT                        \n \nOPINION FILED FEBRUARY 24, 2023   \nHearing  before  Administrative  Law  Judge  Chandra  L.  Black,  in  Little  Rock,  Pulaski \nCounty, Arkansas. \n \nClaimant, pro se, did not appear for the hearing.  \n \nRespondents represented by Mr. Jarrod Parrish, Attorney at Law, Little Rock, Arkansas. \n    \n   STATEMENT OF THE CASE      \n \n A hearing was held on the Respondents’  motion to dismiss for want of prosecution,  \nin  the  above-styled  claim on February  22,  2023  pursuant  to  Dillard  v.  Benton  County \nSheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004).  Specifically, the sole issue \nfor determination was whether this case should be dismissed due to the Claimant’s failure \nto diligently prosecute it under the provisions of Ark. Code Ann. §11-9-702 (Repl. 2012), \nand/or Arkansas Workers’ Compensation Commission Rule 099.13.  \n Reasonable  notice  of  the  dismissal  hearing  was  provided  to  all  parties  in  the \nmanner prescribed by law.   \nThe  record  consists  of  the  February  22,  2023  hearing  transcript.  Equally,  the \nCommission’s file was made a part of the record.  It has been incorporated by reference \n\nCzech– H203994 \n2 \n \ninto  the  hearing  transcript.  The  Respondents  offered  into  evidence  a Respondents’ \nHearing  Exhibit  Index  consisting  of  ten  (10)  numbered  pages,  which  was  marked \nRespondents’ Exhibit 1. \n  No testimony was taken during the hearing. \nProcedural History \nThe Claimant filed a Form AR-C with the Commission in the above-styled claim on \nJune  1,  2022.    Per  this  document,  the  Claimant  alleged  she  sustained an  injury  while \nworking  for  the  respondent-employer  on  May  17,  2022.    The  Claimant  requested  only \ninitial workers’ compensation benefits in the form of medical expenses.  \nOn June 3, 2022, Respondents (the insurance carrier) filed a Form AR-2 with the \nCommission  accepting  the  claim  as a  compensable  injury  in  the  form  of  a “forehead \ncontusion.”  However, according to this document, the insurance carrier accepted this as \na “medical only claim.”   \nSince  the  filing  of  the  Form  AR-C,  there  has  been  no  activity  on  the part  of  the \nClaimant to pursue her claim for workers’ compensation benefits.  Most importantly, there \nhas not been a request for a hearing made by the Claimant since the filing of the Form \nAR-C in June 2022.  To date, the Claimant has not attempted in any process whatsoever \nto pursue her claim for workers’ compensation benefits.       \nTherefore, on  December 6, 2022  the Respondents filed with the Commission, a \nMotion to Dismiss for Failure to Prosecute, with a certificate of service to the Claimant. \nThis document shows that Respondents served a copy of the motion for dismissal on the \nClaimant by mailing a copy of this document to the Claimant via the United States Postal \nService.  \n\nCzech– H203994 \n3 \n \nSubsequently, on December 8, 2022  I sent a letter to the Claimant informing her \nof the motion, with a deadline of December 27, 2022 for filing a written objection with the \nCommission.   Information  received  by  the  Commission  from  the  United  States  Postal \nService shows that they delivered this item to the Claimant by leaving a copy of it with an \nindividual at her residence on December 10, 2022.   The electronic return receipt  appears \nto bear the scribbled signature of the Claimant’s last name only.   \nNevertheless,  there has been no reply from the Claimant.  \nThe  Commission  sent a  Notice of  Hearing  on  January  5,  2023  to the  parties  by \nway of certified mail, to inform them that a  hearing on Respondents’ motion to dismiss \nwas scheduled for February 22, 2023, at 9:00 a.m., at the Commission, in Little Rock.   \nInformation  received  from  the  United  States  Postal  Service  confirms  that  the \nClaimant’s  copy  of  the  hearing  notice  was  delivered  to her  home  and  left  with  an \nindividual.  My review of proof of the delivery information reveals that the Claimant signed \nfor delivery of this item on January 7, 2023.    \nThus far, there has been no reply from the Claimant.   \nThe  dismissal  hearing  was  in  fact  conducted  on  the Respondents’ Motion  to \nDismiss for Failure to Prosecute as scheduled.  However, the Claimant did not attend the \nhearing.  The Respondents’ attorney appeared at the hearing and renewed his motion for \nthis claim to be dismissed due to the Claimant’s failure to take any action to pursue it.  \nSpecifically, counsel basically pointed out that all appropriate benefits have been paid; \nand on May 19, 2022 the Claimant was released from care for her forehead contusion \ninjury.  The Respondents’ attorney pointed out that although it has been nine (9) months \nsince  the  injury  happened,  the  Claimant  has  done  nothing  to  prosecute or  pursue  her \n\nCzech– H203994 \n4 \n \nclaim; that she has not responded to the notices of this Commission; and she failed to \nappear at the hearing to object to her claim being dismissed. The Respondents’ attorney \nconcluded that the Claimant has exhibited a pattern of inaction to pursue/prosecute this \nmatter  which  clearly  establishes  that  she  has  failed  to  prosecute  her  claim.  Counsel \ntherefore requested that this claim be dismissed under the provisions of Ark. Code Ann. \n§11-9-702 (d) and Commission Rule 099.13.   \nDiscussion \nAlthough  the  Claimant  filed  a  claim  for  initial  medical  expenses,  the  evidence \npreponderates that this is a claim for additional benefits.  Therefore,  the applicable statute \nis Ark. Code Ann. §11-9-702 (d) (Repl. 2012), which provides:  \nIf within six (6) months after the filing of a claim for additional compensation, \nno bona fide request for a hearing has been made with respect to the claim, \nthe claim may, upon motion and after hearing, if necessary, be dismissed \nwithout  prejudice  to  the  refiling  of  the  claim  within  the  limitation  period \nspecified in subsection (b) of this section. \n \nCommission Rule 099.13 reads, in relevant part:  \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. (Effective March 1, 1982) \n \nMy review of the record shows that more than six (6) months have passed since \nthe  Claimant’s  June  2022  filing  of  the  Form  AR-C for her  admittedly  compensable \ncontusion  of  the  forehead  injury.    However,  since  this  time,  the  Claimant  has  failed  to \nmake a request for a hearing before this Commission for a hearing on the merits of her \nclaim  for workers’ compensation benefits.  Moreover,  the  Claimant  has  not  voiced  any \nform of  objection  to  the  dismissal  of  her  claim.    Of  significance,  the  Claimant  did  not \n\nCzech– H203994 \n5 \n \nappear  at  the  dismissal  hearing  to  object  to  her  claim  being  dismissed  despite  having \nreceived notice of this proceeding.  \nTherefore, based on my review of the documentary evidence, and all other matters \nproperly before this Commission, I find that Respondents’ Motion to Dismiss for Failure \nto Prosecute should be granted pursuant to Ark. Code Ann. §11-9-702 (d) (Repl. 2012), \nand Commission Rule 099.13.  This dismissal is without prejudice, to the refiling of this \nclaim within the limitation period specified by law.  \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn the basis of the record as a whole, I hereby make the following findings of fact \nand conclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nof this claim.  \n \n2. The  Claimant  filed  a  Form  AR-C with  the  Commission  on  June  1, \n2022  for  her  admittedly  compensable  work-related  injury,  which \noccurred on May 17, 2022.   \n \n3. Since the filing of her claim in June 2022, more than six (6) months \nhave  passed  without  the  Claimant having  requested  a  hearing  or \notherwise attempted to pursue her claim.       \n \n4. The Respondents filed a Motion to Dismiss for Failure to Prosecute, \nwith  the  Commission  on  December  6,  2022.  The  Claimant  was \ninformed of said motion via the manner prescribed by law.  \n \n5. A  hearing  was  scheduled  and  held on the Respondents’ motion  to \ndismiss.  \n \n6. Reasonable  notice  of  the  hearing  was had  on  all  parties  in  the \nmanner provided by law.   \n \n7. The Claimant failed to appear at the hearing and has not responded \nto the written notices of this Commission.  Hence, the Claimant has \nnot objected to her claim being dismissed. \n  \n \n\nCzech– H203994 \n6 \n \n8. The evidence preponderates that Respondents’ motion to dismiss for \nwant of prosecution is warranted. \n \n9. That Respondents’ motion to dismiss this claim is hereby granted under  \nArk. Code Ann. §11-9-702 (d), and Commission Rule 099.13, without \nprejudice, to the refiling of the claim within the specified limitation period. \n \nORDER \nBased  on  the  foregoing  findings  of  fact  and  conclusions  of  law,  this  claim  for \nworkers’ compensation benefits filed on June 1, 2022 is dismissed without prejudice, to \nthe refiling of it within the specified time.  \nIT IS SO ORDERED.                        \n                                          \n      _____________________________ \n      Chandra L. Black  \n                                          Administrative Law Judge","textLength":10251,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO.:H203994 DEBRA CZECH, EMPLOYEE CLAIMANT McDONALD’S, SELF-INSURED EMPLOYER RESPONDENT ARKANSAS McDONALD’S SELF-INSURED TRUST/RISK MANAGEMENT RESOURCES, THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FILED FEBRUARY 24, 2023 Hearing before Administrative Law ...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:10:37.263Z"},{"id":"alj-H001216-2023-02-24","awccNumber":"H001216","decisionDate":"2023-02-24","decisionYear":2023,"opinionType":"alj","claimantName":"James Haynie","employerName":"Linen King, LLC","title":"HAYNIE VS. LINEN KING, LLC AWCC# H001216 FEBRUARY 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HAYNIE_JAMES_H001216_20230224.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HAYNIE_JAMES_H001216_20230224.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H001216 \n \nJAMES HAYNIE, EMPLOYEE  CLAIMANT \n \nLINEN KING, LLC, EMPLOYER                                                                            RESPONDENT  \n \nTRAVELERS INDEMNITY COMPANY, CARRIER                                  RESPONDENT  \n \n \nOPINION FILED FEBRUARY 24, 2023 \n \nHearing  before  Administrative  Law  Judge Steven  Porch on  February 23,  2023 in Little \nRock, Pulaski County, Arkansas. \n \nClaimant, pro se. \n \nThe Respondents were represented by Mr. Guy Alton Wade, Attorney at Law, Little Rock, \nArkansas. \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a Motion  to Dismiss  filed  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  February 23,  2023 in Little \nRock, Arkansas.  Claimant, who is pro se, appeared in person and testified.  Respondents \nwere represented at the hearing by Mr. Guy Alton Wade, Attorney at Law, of Little Rock, \nArkansas.  In addition to Claimant’s testimony, the record consists of the Commission’s \nfile–which has been incorporated herein in its entirety by reference. \n The evidence reflects that per the First Report of Injury or Illness filed on February \n26, 2020, Claimant purportedly injured his right shoulder at work on February 14, 2020 \nwhen tearing  open  bags.    According  to  Form  AR-2  that  was filed  on March 3,  2020, \nRespondents accepted  this  injury  as  compensable  and  paid  medical  and  indemnity \nbenefits pursuant thereto.  At some point, soon after, Claimant hired legal counsel, Laura \nBeth York, who filed Form AR-C, asking for a full range of benefits on February 16, 2022.  \n\nHaynie – H001216 \n \n 2 \nHowever, on July 29, 2022, Ms. York filed a Motion to Withdraw from this case. The Full \nCommission granted Ms. York’s Motion to Withdraw as Counsel on August 9, 2022. Since \nthen, the case has been inactive until Respondents filed a Motion to Dismiss due to the \nlack of prosecution. A hearing was set February 23, 2023, in Little Rock, Arkansas on the \nMotion to Dismiss. The hearing took place as scheduled. \nAt  the  hearing, the Claimant appeared  and  testified.  Respondents  argued  for \ndismissal under Rule 13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole  and  other  matters  properly  before  the \nCommission, and having had an opportunity to hear the sworn testimony of the Claimant, \nI  hereby  make  the following findings of fact and  conclusions  of  law  in accordance  with \nArk. Code Ann. § 11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n2. All  parties  received  notice  of  the Motion  to Dismiss  and  the  hearing  thereon \npursuant to AWCC R. 099.13. \n3. Respondents did not prove by a preponderance of the evidence that Claimant has \nfailed to prosecute his claim under AWCC R. 099.13. \n4. The Motion to Dismiss should be, and hereby is, denied. \n5. Claimant has requested a hearing on his claim. \n6. This matter will proceed to a hearing on the merits. \n \n \n\nHaynie – H001216 \n \n 3 \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an \naction  pending  before  the  Commission,  requesting  that  the  claim  be \ndismissed for want of prosecution, the Commission may, upon reasonable \nnotice  to  all  parties,  enter  an  order  dismissing  the  claim  for  want  of \nprosecution. \n \nSee generally Johnson v. Triple T Foods, 55 Ark. App. 83, 85, 929 S.W.2d 730 (1996).   \nUnder  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must  prove  by  a \npreponderance  of  the  evidence  that  dismissal  should  be  granted.    The  standard \n“preponderance of the evidence” means the evidence having greater weight or convincing \nforce.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. Magnet Cove Barium \nCorp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe Commission must sort through conflicting evidence and determine the true facts.  Id.  \nIn so doing, the Commission is not required to believe the testimony of the claimant or \nany other witness, but may accept and translate into findings of fact only those portions \nof the testimony that it deems worthy of belief.  Id. \n At the hearing, Claimant objected to a dismissal and testified that it is his desire to \nproceed to another hearing on his claim.  He is seeking additional benefits in the form of \nmedical mileage and prescription medication. \n\nHaynie – H001216 \n \n 4 \n After  consideration  of  the  evidence,  I  find  that  Claimant  and  Respondents  were \ngiven reasonable notice of the Motion to Dismiss hearing under Rule 13.  I further find \nthat Claimant has not yet abridged this rule.  The Motion to Dismiss is thus denied. \n Prehearing questionnaires will be immediately issued to the parties, and this matter \nwill proceed to a full hearing on the merits. \nCONCLUSION \n Based on the findings of fact and conclusions of law set forth above, Respondents’ \nMotion to Dismiss is hereby denied. \n IT IS SO ORDERED. \n      ________________________________ \n      STEVEN PORCH \n      Administrative Law Judge","textLength":5569,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H001216 JAMES HAYNIE, EMPLOYEE CLAIMANT LINEN KING, LLC, EMPLOYER RESPONDENT TRAVELERS INDEMNITY COMPANY, CARRIER RESPONDENT OPINION FILED FEBRUARY 24, 2023 Hearing before Administrative Law Judge Steven Porch on February 23, 2023 in Little Rock, Pulaski Co...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1","denied:4"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:10:39.336Z"},{"id":"alj-H101398-2023-02-23","awccNumber":"H101398","decisionDate":"2023-02-23","decisionYear":2023,"opinionType":"alj","claimantName":"Rita Jordan","employerName":"Hino Motor Mfg., USA, Inc","title":"JORDAN VS. HINO MOTOR MFG., USA, INC. AWCC# H101398 FEBRUARY 23, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//Jordan_Rita_H101398_20230223.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Jordan_Rita_H101398_20230223.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H101398 \n \n \nRITA JORDAN, EMPLOYEE CLAIMANT \n \nHINO MOTOR MFG., USA, INC., \n EMPLOYER  RESPONDENT \n \nSOMPO AMER. FIRE & MARINE INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 23, 2023 \n \nHearing before Chief Administrative Law Judge O. Milton Fine II on  January 27, \n2023, in Marion, Crittenden County, Arkansas. \n \nClaimant pro se.\na\n \n \nRespondents  represented  by  Messrs.  Michael  E.  Ryburn  and  Zachary  Ryburn, \nAttorneys at Law, Little Rock, Arkansas. \n \n \n On  January  27,  2023,  the  above-captioned  claim  was  heard  in  Marion, \nArkansas.    A  prehearing  conference  took  place  on  September  12,  2022.    A \nPrehearing  Order  entered  that  same  day  pursuant  to  the  conference  was \nadmitted without objection as Commission Exhibit 1.  At the hearing, the parties \nconfirmed that the stipulations, issues, and respective contentions, as amended, \nwere properly set forth in the order. \n \n \n1\nClaimant was represented at the prehearing telephone conference by Ms. \nMarie  A.  Crawford,  Attorney  at  Law,  of  Sherwood,  Arkansas.    However,  on \nOctober 6, 2022, I entered an  order allowing Ms. Crawford to withdraw from the \nmatter pursuant to AWCC Advisory 2003-2. \n\nJORDAN - H101398 \n2 \n \nStipulations \n The  parties  discussed  the  stipulations  set  forth  in  Commission  Exhibit  1.  \nThey are the following, which I accept: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  employer/employee/carrier  relationship  existed  on  or  about \nAugust 22, 2019. \n3. Respondents have controverted this claim in its entirety. \n4. Claimant’s average weekly wage entitles her to compensation rates \nof $333.00/$250.00. \nIssues \n The parties discussed the issues set forth in Commission Exhibit 1.   After \namendments at the hearing, the following were litigated: \n1. Whether  the  January  27,  2023,  hearing  on  this  claim  should  be \ncontinued. \n2. Whether  this  claim  should  be  dismissed  pursuant  to  AWCC  R. \n099.13   due   to   Claimant’s   leaving   (without   permission) the \ncourthouse   during   her   testimony   and   thereby   preventing   the \ncompletion of the hearing. \n3. Whether  this  claim  for  initial  benefits  is  barred  by  the  statute  of \nlimitations. \n\nJORDAN - H101398 \n3 \n \n3. Whether   Claimant   sustained   compensable   injuries   by   specific \nincident  to  her  right  hip,  leg,  knee,  shin,  ankle,  foot,  elbow  and \nhand, along with her back and buttocks. \n4. Whether  Claimant  sustained  compensable  consequences  in  the \nforms of lumbar radiculitis and radiculopathy. \n5. Whether Claimant is entitled to reasonable and necessary medical \ntreatment of her alleged injuries. \n All other issues have been reserved. \nContentions \n After amendments at the hearing, the respective contentions of the parties \nread as follows: \n Claimant: \n1. Claimant  suffered  injuries  to  the  right  foot,  right  leg,  right  ankle, \nback, buttocks, right arm, and right elbow in an accident that arose \nout  of  and  in  the  course  of  employment  with  the  respondent \nemployer on August 22, 2019. \n2. On  the  date  of  the  accident,  Claimant’s  job was  on  the  production \nline and involved the inspection of truck axles. \n3. Claimant picked up two drums for placement on each end of a truck \naxle  when  a  forklift  driver  hit  the  chute  and  knocked  it  onto \nClaimant’s right foot.  The foot became trapped under the frame of \nthe  chute  as  a  result.    This,  in  turn,  caused  Claimant  to  fall \n\nJORDAN - H101398 \n4 \n \nbackwards onto the floor while still holding the drums.  She landed \non her back and buttocks.  The forklift driver and another employee \nhad to lift the chute from Claimant’s right foot and ankle in order to \nfree her. \n4. Claimant  required  immediate  medical  treatment.    The  medical \nproviders  at  Coast  to  Coast  Medical,  LLC,  diagnosed  her  with \ncontusion  of  the  foot  and  noted  tenderness  to  the  top  of  the  foot.  \nShe  also  suffered  abrasions  and  swelling  to  the  foot,  along  with \npain.    The  medical  provider  released  Claimant  with  no  restrictions \nafter the medical appointment on the same date of the accident.  In \naddition,  the  respondent  employer  required  that  she  return  to  the \nproduction line at the conclusion of the initial medical appointment.  \nIn  addition,  on  the  same  date  as  the  accident,  the  respondent \nemployer  directed  her  to  re-enact  the  accident,  which  included \ngetting down on the floor where she had fallen and placing her leg \nback  under  the  chute.    However,  Claimant  was  unable  to  perform \nthe  re-enactment  because of pain  and  swelling.   She  informed  the \nrespondent  employer  that  she  was  unable  to  continue  regular \nduties on the production line. \n5. After   the   date   of   the   accident,   Claimant   continued   medical \ntreatment at Coast to Coast Medical.  In addition, she has required \nmedical  treatment  at  OrthoSouth  for  right  leg  and  back  pain,  plus \n\nJORDAN - H101398 \n5 \n \nleg  swelling  and  numbness;  with  Dr.  Michael  Hood,  with  Delta \nOrthopedics  and  Sports  Medicine,  for  right  leg  and  hip  pain;  with \nDr.  Phillip  Green,  M.D.,  with  MidSouth  Pain  and  Anesthesia,  for \nradiculopathy;  with  Marion  Minor  Medical  for  pain  in the  right  knee \nand hip joints; with East Arkansas Family Health Center for right leg \npain  and  swelling;  and  with  Diagnostic  Imaging,  P.C.,  for  lumbar, \nright hip, and right leg pain. \n6. The  pain  from  the  injuries  that  Claimant  suffered  in  the  accident \nhave  become  chronic  and  have  developed  into  radiculopathy  and \nradiculitis. \nRespondents: \n1. Respondents  contend that  the  incident in question did not occur in \nthe  manner  alleged  by  Claimant.    She  lacks  objective  medical \nfindings  of  an  injury.    The  alleged  injuries  occurred  prior  to  the \nevent  at  issue.  The  statute  of  limitations  bars  all  or  part  of  this \nclaim.    Specifically,  any  claim  for  a  body  part  other  than  the  right \nfoot is time-barred. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After   reviewing   the   record   as   a   whole,   including   medical   reports, \ndocuments,  and other matters  properly before  the  Commission,  and  having  had \nan  opportunity  to  hear  the  testimony  of  the  claimant  and  to  observe  her \n\nJORDAN - H101398 \n6 \n \ndemeanor, I hereby make the following findings of fact and conclusions of law in \naccordance with Ark. Code Ann. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction \nover this claim. \n2. The  stipulations  set  forth  above  are  reasonable  and  are  hereby \naccepted. \n3. Claimant’s  motion  to  continue  the  hearing  is  without  merit  and  is \nhereby denied. \n4. Because  the  evidentiary  portion  of  the  hearing  was  not  completed \n(due  to  Claimant  leaving  the  hearing  while  still  on  the  witness \nstand),  the  merits  of  the  substantive  issues  cannot  be  reached on \nthe evidentiary record. \n5. Respondents have proven by a preponderance of the evidence that \nthe claim should be dismissed without prejudice pursuant to AWCC \nR.   099.13   due  to   Claimant’s   leaving   (without   permission)   the \ncourthouse during her testimony, which prevented the hearing from \nbeing completed. \n6. Because  of  the  above  finding,  the  remaining  issues—whether  this \nclaim  for  initial  benefits  is  barred  by  the  statute  of  limitations; \nwhether   Claimant   sustained   compensable   injuries   by   specific \nincident  to  her  right  hip,  leg,  knee,  shin,  ankle,  foot,  elbow  and \nhand,   along   with   her   back   and   buttocks;   whether   Claimant \n\nJORDAN - H101398 \n7 \n \nsustained  compensable  consequences  in  the  forms  of  lumbar \nradiculitis  and  radiculopathy;  and  whether  Claimant  is  entitled  to \nreasonable  and  necessary  treatment  of  her  alleged  injuries—are \nmoot and will not be addressed. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness. \n In  addition  to  the  Prehearing  Order  discussed  above,  admitted  into \nevidence  in  this  case  were  the  following:   Claimant’s  Exhibit  1,  a  compilation  of \nher medical records, consisting of 50 numbered pages; and Respondents’ Exhibit \n1, Claimant’s Forms AR-C filed on February 4, 2021, and July 1, 2021, consisting \nof two pages. \nAdjudication \nA. Motions for a Continuance and to Dismiss \n During the hearing, Claimant took the witness stand.  Because she had no \nattorney  to  question  her  on  direct  examination,  I  conducted  this  portion  of  her \nexamination,  asking  questions  that  were  geared  toward  helping  me  to  make \nfindings  of  fact  and  conclusions  of  law  on  the  above-stated  issues.    [R.  13-36]  \nThis  was  in  keeping  with  Ark.  Code  Ann. §   11-9-705(a)(1)  (Repl.  2012),  which \nprovides in pertinent part that the “Commission . . . may make such investigation \nor inquiry, or conduct the hearing, in a manner as will best ascertain the rights of \n\nJORDAN - H101398 \n8 \n \nthe  parties.”  At  the  end  of  this  line  of  questioning,  Respondents’  co-counsel \nbegan his cross-examination.  [R. 36] \n During  cross-examination,  co-counsel  asked  about  two  discrepancies  in \nher  testimony.    The  first  was  her  testimony  on  direct  that  she  had  no  previous \nback  problems,  when  she  had  been  involved  in  a  motor  vehicle  accident  less \nthan  one  year  prior  to  the  incident  at  issue,  which  resulted  in  her  undergoing \nback  treatment.    [R.  36-37]    The  second  was  her  testimony  that  she  had  been \ninvolved in any accidents since the incident at issue that had caused her to suffer \nan  injury.    Asked  about  medical  records  purporting  to  bear  her  name  that \nreflected  that  she  passed  out  while  walking  up  steps  and  had  injured  her  neck, \nshe  stated  that  she  had  no  memory  of  such  an  occurrence.    [R.  37-38]    Co-\ncounsel, still conducting his cross-examination into matters related to Claimant’s \ncredibility,\nb\n segued into questions about her treatment for anxiety.  The following \nexchange took place: \nQ. Matter of fact, one doctor in these reports says your anxiety \nis  a  bigger  problem  than  anything  you  sustained  in  this \naccident. \n \nA. No, sir. \n \nQ. Why do you have anxiety? \n \n2\nThe determination  of  a  witness’s  credibility  and  how  much  weight  to \naccord  to  that  person’s  testimony  are  solely  up  to  the  Commission.   White  v. \nGregg   Agricultural   Ent.,   72   Ark.   App.   309,  37   S.W.3d  649   (2001).  The \nCommission must sort through conflicting evidence and determine the true facts.  \nId.    In  so  doing,  the  Commission  is  not  required  to  believe  the  testimony  of  the \nclaimant or any other witness, but may accept and translate into findings of fact \nonly those portions of the testimony that it deems worthy of belief.  Id. \n\nJORDAN - H101398 \n9 \n \n \nA. Dealing with life, sir. \n \nQ. And you’re taking a drug called Chlorazapam? \n \nA. Yes, sir. \n \nQ. Do you still take it? \n \nA. I  hope  I’m  done.    (Yelling)    That  rings—that’s  part  of  the \nproblem.  I’m done, done. \n \nJUDGE FINE:  Ma’am.  Ma’am, hang on. \n \nA. I’m  done.    Done.    That  question,  y’all  can  have  it.    I  don’t \ncare.  (Witness crying)  I’m done with this. \n \nJUDGE FINE:  Ma’am— \n \nA. No.  I’m done.  (Claimant left the room) \n \n[R. 39-40] \n \n I  recessed  the  hearing  and  attempted  to  locate  Claimant.    This  was \nunsuccessful.  She apparently had left the courthouse.  [R. 41]  Thereafter, I went \nback on the record.  The following colloquy occurred: \nJUDGE FINE:  Just to recap, prior to me going off the record, while \nthe claimant was undergoing cross-examination she became visibly \nupset  and  stood  up  from  her  chair.    And  I  attempted  to  calm  her \ndown  and  asked  her  to  remain,  because  she  was  making  actions \nthat was indicating that she was going to leave the courtroom.  And I \ndon’t  know  how  much  of  this  can  be  taken  down  because  she  was \ntalking  over  any  attempts  to  speak  with  her.    And  basically,  again, \nshe said, ‘I’m done with this.”  And she left the hearing room.  At that \npoint I recessed the hearing and attempted to locate the claimant in \nthe  building;  and  the  nearest  I  can  ascertain,  based  upon  my \nattempt  on  this,  is  that  she  departed  the  premises,  so  suffice  it  to \nsay  I  think  the  claimant  does  not  appear  to  have  any intention  of \nreturning and resume taking the stand.  It certainly  does not appear \nto  be  the  case.    So  with  that  in  mind,  I’m  turning  this  over  to  the \n\nJORDAN - H101398 \n10 \n \nrespondents  and  asking  if  you  have  anything  you  wish  to  offer  or \nmove for at this point. \n \nMR.   MIKE   RYBURN:      Yes,   Your   Honor.      Based   upon   our \nobservation,  it  appears  to  me  that  the  claimant  has  abandoned  her \nclaim.    She  announced  that,  I  believe,  that “Y’all  can  have  this.    I \ndon’t  want  to  do  this  anymore,”  and  left  the  courtroom  while  the \nhearing  was  in  session.    Therefore,  we  ask  that  this  claim  be \ndismissed— \n \nJUDGE FINE:  Okay.  Under Rule— \n \nMR. MIKE RYBURN:  —under Rule 13. \n \nJUDGE FINE:  13 is for want of prosecution. \n \nMR. MIKE RYBURN:  Yes, sir. \n \nJUDGE  FINE:    All  right.    I  don’t  think  there  is  anything  else  to  be \ndone  at  this  point,  since  it  doesn’t  appear  that  we  can  resume  the \nhearing because of the claimant departing, so what I will do at this \npoint   is   I’m   going   to   take   the   respondents’   motion   under \nadvisement. \n \n[R. 41-42] \n Thereafter,   Respondents’   co-counsel   represented   that   he   had   not \ncompleted his cross-examination (which the transcript makes apparent).  In turn, \nI  stated  on  the  record  that  what  had  been  elicited  during  the  relatively  brief \nquestioning  of  Claimant  by  Respondents  had  me  intending  to  ask  the  Claimant \nmore  questions  during  redirect  examination.    [R.  43-44]    It  is  thus  obvious  that \nshe did not finish presenting her case-in-chief. \n Section 11-9-705(a)(1), referenced above, states in its entirety: \nIn  making  an  investigation  or  inquiry  or  conducting  a  hearing,  the \nWorkers’   Compensation   Commission   shall   not   be   bound   by \ntechnical  or  statutory  rules  of  evidence  or  by  technical  or  statutory \n\nJORDAN - H101398 \n11 \n \nrules  of  procedure,  except  as  provided  by  this  chapter,  but  may \nmake  such  investigation  or  inquiry,  or  conduct  the  hearing,  in  a \nmanner that will best ascertain the rights of the parties. \n \nThe  Commission  has  long held that,  notwithstanding  its not being bound  by the \nrules  of  evidence  or  procedure,  it  must  conduct  hearings  in  a  manner  that \npromotes “fairness” to the parties.  See, e.g., Moss v. Rogers Logging Co., 2013 \nAR  Wrk.  Comp.  LEXIS  547,  Claim  No.  G101576  (Full  Commission  Opinion  filed \nAugust  28,  2013); Bryant  v.  Staffmark,  Inc.,  2001  AR Wrk.  Comp.  LEXIS  563, \nClaim  No.  F006077  (Full  Commission  Opinion  filed  March  23,  2001).   See  also \nSapp  v.  Tyson  Foods,  2010  Ark.  517, 2010  Ark.  App.  LEXIS  549.    I  find  that  to \nrule  on  the  merits  of  the  claim  based  on  the  incomplete  record  would  unfairly \nsurprise and prejudice Respondents.\n \n That said, Claimant ultimately returned to the hearing, at 12:15 p.m.  This \nwas roughly 30 minutes after she departed, which took place at 11:43 a.m.  She \ntestified  that  she  had  been  in  the  parking  lot  of  the  courthouse;  and  she  asked \nme at that point to resume the hearing.  Respondents objected, pointing out that \nonly  15  minutes  remained  on  the  allotted  time  for  the  hearing—and  that their \ncounsels  would  be  trying  the  next  hearing  on  my  docket  as  well.    [R.  49-50]      I \nrepresented to the parties that insufficient time remained to complete the hearing.  \n[R.  50-51]  I  again  took  the  Motion  to  Dismiss  under  advisement,  as  I  did \nClaimant’s motion to continue the hearing and resume it at a later date.  [R. 52] \n\nJORDAN - H101398 \n12 \n \n Under AWCC R. 099.13: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83, 85,  929  S.W.2d  730 \n(1996)(discussing, inter alia, Rule 13). \n As shown by the evidence, Claimant without good cause  and in defiance \nof  the  Commission  departed  from  the  courtroom  while  she  was  still  on  the \nwitness  stand.    She  could  not  be  located.   Insufficient  time  remained,  upon  her \nreturn, to complete the hearing.  Claimant’s Motion for a Continuance is not well-\ngrounded, and is hereby denied.  Not only was her case-in-chief left uncomplete, \nbut  Respondents  were  left  unable  to,  inter  alia,  finish  their  cross-examination.  \nThe  evidence  thus  shows  that  Claimant  has  failed  to  prosecute  her  claim,  and \nthat reasonable notice of the proceeding was provided to her.   Hence, dismissal \nof  the  instant  claim  is  justified  under  Rule  13.  Respondents  have  met  their \nburden of proof on this matter. \n That  leaves  the question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer Co.,  2005  AR Wrk.  Comp. \nLEXIS  5  10,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \n\nJORDAN - H101398 \n13 \n \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”  (Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v.  Strong, \n75 Ark. 249, 629 S.W.2d 284 (1982)).  Based on the above authorities, I find that \nthe dismissal of this claim should be and hereby is entered without prejudice.\nc\n \nB. Remaining Issues \n Because  of  the  above  findings  and  conclusions,  the  remaining  issues—\nwhether  this  claim  for  initial  benefits  is  barred  by  the  statute  of  limitations; \nwhether Claimant sustained compensable injuries by specific incident to her right \nhip,  leg,  knee,  shin,  ankle,  foot,  elbow  and  hand,  along  with  her  back  and \nbuttocks;  whether  Claimant  sustained  compensable  consequences  in  the  forms \nof  lumbar  radiculitis  and  radiculopathy;  and  whether  Claimant  is  entitled  to \nreasonable  and  necessary  treatment  of  her  alleged  injuries—are  moot  and  will \nnot be addressed. \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n3\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":19757,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H101398 RITA JORDAN, EMPLOYEE CLAIMANT HINO MOTOR MFG., USA, INC., EMPLOYER RESPONDENT SOMPO AMER. FIRE & MARINE INS. CO., CARRIER RESPONDENT OPINION FILED FEBRUARY 23, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 27, 2023, ...","outcome":"dismissed","outcomeKeywords":["dismissed:3","denied:1"],"injuryKeywords":["hip","knee","ankle","back","lumbar","neck"],"fetchedAt":"2026-05-19T23:10:33.066Z"},{"id":"alj-G605091-2023-02-22","awccNumber":"G605091","decisionDate":"2023-02-22","decisionYear":2023,"opinionType":"alj","claimantName":"Patricia Kizzire","employerName":"Petrus Stuttgart, Inc","title":"KIZZIRE VS. PETRUS STUTTGART, INC. AWCC# G605091 FEBRUARY 22, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//KIZZIRE_PATRICIA_G605091_20230222.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KIZZIRE_PATRICIA_G605091_20230222.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G605091 \n \nPATRICIA G. KIZZIRE, EMPLOYEE            CLAIMANT \n \nPETRUS STUTTGART, INC. EMPLOYER           RESPONDENT  \n \nCENTRAL ARKANSAS AUTO DEALERS SIF/ \nRISK MANAGEMENT RESOURCES, CARRIER/TPA                      RESPONDENTS #1 \n \nDEATH & PERMANENT TOTAL DISABILITY TRUST FUND            RESPONDENT #2  \n \nOPINION FILED FEBRUARY 22, 2023 \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on January 10, 2023. \n \nMr. Gary Davis, Attorney-at-Law of Little Rock, Arkansas, appeared on behalf of the \nclaimant.\n1\n \n \nMs.  Karen  H.  McKinney,  Attorney-at-Law  of  Little  Rock,  Arkansas,  appeared  on \nbehalf of the respondent/employer. \n \nThe Trust Fund waived appearance. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on January 10, 2023, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to prosecute  pursuant  to \nArkansas  Code  Annotated §  11-9-702  and/or Rule  099.13  of  the  Arkansas  Workers’ \nCompensation  Act.    The  claim  involves  a  compensable  knee  injury,  which  allegedly \noccurred on or about December 21, 2015.  An employer/employee relationship existed at \nthe  time.  A  First  Report  of  Injury  was  filed  on  July  19,  2016,  in  which  respondents \naccepted as compensable, an injury to claimant’s right knee. \n \n1\n As noted in the respondents’ motion, Mr. Davis filed with the Commission a Motion to \nWithdraw as Counsel on April 27, 2021, and that motion was granted on May 19, 2021. \nHaving been formally relieved of representing the claimant, he nonetheless appeared to \nassist the claimant in resisting the motion at bar. \n\nKIZZIRE – G605091 \n \n2 \n \n The claimant filed an AR-C on November 28, 2017, requesting initial and additional \nbenefits.  In an August 14, 2000, Opinion, the Full Commission found that the respondents \nproperly compensated the claimant and that she could not prove a compensable injury to \nher left knee. No further appeal was taken. \nAt  bar  is  the  respondents’  October  12,  2023,  Motion  to  Dismiss  for  lack  of \nprosecution. A hearing was held at 11:30 a.m. on Tuesday, January 10, 2023, in regard \nto that motion.  A review of the file does not reveal a response from the claimant to the \nMotion,   but   she   appeared   for   the   hearing   and   was   represented   by   Mr.   Davis. \nRespondents asserted that there are no issues to justify an open file and that more than \nsix  (6)  months  have  passed  without  a  request  for  a  hearing  on  any  issue.  (Tr.5) \nRespondents acknowledged an outstanding billing issue, but put on the record that they \nare willing to pay any bill appropriately submitted.\n2\n Id.  \nClaimant did not argue against or present evidence controverting the respondents’ \ncontention that no hearing was requested for at least six (6) months before the filing of \ntheir  motion.  Instead,  claimant  asserts  concern  around  a  bill  or  some  bills  that  were \ncharged  by  mistake  to  Medicare  instead  of  the  respondents  (Tr.7),  as  noted  by  the \nrespondents’  counsel.  As  stated  above,  however,  the  respondents  made  good  faith \nrepresentations  that  any  outstanding billing  issues  will  be addressed appropriately  and \nin-line with their obligations under the law. \n \n2\n While it is not part of the record, the respondents’ counsel echoed, via a January 11, 2023, \nemail, their willingness to fulfill their payment responsibilities with regard to the billing \nissue discussed at the hearing. Counsel stated: \n My client is agreeable to pay what is owed for the compensable right knee.  \n We are requesting a conditional payment search from CMS and will go from \n there. If the Conditional Payment search does not or cannot separate the right \n and left knee charges, we will contact the provider and request rebilling for \n those services. \n\nKIZZIRE – G605091 \n \n3 \n \n Based  on  the  record,  testimony,  and  evidence,  I  am  compelled  to  find  that  the \nMotion to Dismiss should be granted due to the claimant’s lack of prosecution and the \nmatter should be dismissed without prejudice.\n3\n  Should the respondents fail or refuse to \nremit payment on properly submitted charges, the claimant may request a hearing for the \nenforcement of the respondents’ obligations. \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice at this time.   \nIT IS SO ORDERED. \n \n \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE   \n   \n \n \n \n \n3\n As noted in FN 1, Mr. Davis appeared to assist in advancing the claimant’s opposition to \ndismissal. I gathered, without explicitly asking, that Mr. Davis had other business before \nthe Commission on the day of this hearing and either offered or agreed to step in after \neither recognizing his former client or being asked to do so by the same. Regardless of how \nhe came to be in the room, it is not relevant to the issue before me now. I only make note to \nacknowledge an understanding, or at least a notion, that an ongoing attorney-client \nrelationship may not exist. And for that reason, I offer the following for the claimant’s \nbenefit towards a possibly better understanding of the nature of a dismissal without \nprejudice: \n \nFrom Black’s Law Dictionary (9\nth\n ed. 2009), a dismissal without prejudice means a case is \n“removed from the [Commission’s] docket in such a way that the [claimant] may refile the \nsame [issue] on the same claim.”","textLength":5665,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G605091 PATRICIA G. KIZZIRE, EMPLOYEE CLAIMANT PETRUS STUTTGART, INC. EMPLOYER RESPONDENT CENTRAL ARKANSAS AUTO DEALERS SIF/ RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENTS #1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2 OPINION FILED FEBR...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:2"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:10:30.914Z"},{"id":"alj-H203737-2023-02-21","awccNumber":"H203737","decisionDate":"2023-02-21","decisionYear":2023,"opinionType":"alj","claimantName":"Tommy Crowell","employerName":"Fulton County Ambulance Services","title":"CROWELL VS. FULTON COUNTY AMBULANCE SERVICES AWCC# H203737 FEBRUARY 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CROWELL_TOMMY_H203737_20230221.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CROWELL_TOMMY_H203737_20230221.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H203737 \n \nTOMMY CROWELL, EMPLOYEE        CLAIMANT \n \nFULTON COUNTY AMBULANCE SERVICES, EMPLOYER       RESPONDENT \n \nRISK MANAGEMENT RESOURCES, CARRIER/TPA        RESPONDENT   \n \nOPINION FILED FEBRUARY 21, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy on February 15, 2023,  \nin Mountain Home, Baxter County, Arkansas. \n \nClaimant  is  represented  by  Mr.  Jim  R.  Burton,  Attorney-at-Law,  of  Jonesboro, \nArkansas, and his right to appear was waived. \n \nRespondents are represented by their attorney, Mr. Jarrod S. Parrish, Attorney-at-\nLaw, of Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on February 15, 2023, in Mountain \nHome, Arkansas, on respondents’ Motion to Dismiss for failure to prosecute pursuant to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant waived his right to appear, notified the Commission by \nhis  attorney,  and  consequently  failed  to  appear  for  the  hearing.   The  claimant  filed  an \nArkansas Form-C on May 20, 2022, contending he had contacted COVID which caused \nprolonged cardiac, pulmonary, cognitive issues.  The respondents denied that the claim \nwas compensable.  Both parties filed a response to the prehearing questionnaire, and the \nmatter was initially set for a hearing on November 16, 2022, by a Prehearing Order filed \nSeptember 13, 2022.  The hearing was continued from the November date, until February \n15, 2023, after a request by the claimant.  Prior to the full hearing, the claimant agreed to \nthe dismissal of his claim.  The full hearing then continued as a Motion to Dismiss.  \n\nAn appropriate notice setting this matter for a hearing on February 15, 2023, was \nprovided, and the claimant did not file an objection or appear at the hearing in Mountain \nHome, Arkansas.  At the time of the hearing, Jarrod S. Parrish appeared on behalf of the \nrespondents and asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, I find that this matter should be dismissed for failure to prosecute pursuant \nto Ark. Code Ann. §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct. \nORDER \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2721,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203737 TOMMY CROWELL, EMPLOYEE CLAIMANT FULTON COUNTY AMBULANCE SERVICES, EMPLOYER RESPONDENT RISK MANAGEMENT RESOURCES, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 21, 2023 Hearing before Administrative Law Judge James D. Kennedy on February 15, 2023, i...","outcome":"dismissed","outcomeKeywords":["dismissed:5","denied:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:10:26.610Z"},{"id":"alj-H202452-2023-02-21","awccNumber":"H202452","decisionDate":"2023-02-21","decisionYear":2023,"opinionType":"alj","claimantName":"Jordan Dodson","employerName":"Ozark Pizza Co., LLC","title":"DODSON VS. OZARK PIZZA CO., LLC AWCC# H202452 FEBRUARY 21, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Dodson_Jordan_H202452_20230221.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Dodson_Jordan_H202452_20230221.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H202452 \n \n \nJORDAN DODSON, EMPLOYEE CLAIMANT \n \nOZARK PIZZA CO., LLC, \n EMPLOYER RESPONDENT \n \nINTREPID INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 21,  2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 17, 2023, \nin Jonesboro, Craighead County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Ms.  Karen  H.  McKinney,  Attorney  at  Law,  Little \nRock, Arkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.  A hearing on the motion was conducted on  February 17, 2023, in \nJonesboro,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nWithout objection, the Commission file on this claim has been incorporated herein \nin  its  entirety  by  reference.  Admitted  into  evidence  was  Respondents’  Exhibit  1, \nforms,  pleadings  and  correspondence  related  to  the  claim,  consisting  of  nine \npages. \n\nDODSON – H202452 \n2 \n \n The record reflects the following procedural history: \n On  March  28,  2022,  a  Form  AR-1  was  filed  in  this  case,  reflecting  that \nClaimant purportedly sustained an injury to her ankle at work on March 15, 2022.  \nOn  May  12,  2022, Respondents  filed  a  Form  AR-2,  representing  that  they  had \naccepted  the  injury  as  compensable  and  were  paying  medical  and  indemnity \nbenefits  pursuant  thereto.  Claimant  has  not  filed  a  Form  AR-C.  However,  she \nsent the following to the Commission on April 18, 2022: \nI  Jordan  Dodson  am  Requesting  an  appeal  for  additional  Benifits.  \nThe Amount in Qustion is less than 2,5000, And I know Mediation is \nmandatory.  Claim #H202452 \n/s/ Jordan Dodson 4-18-22 [sic] \n \n An attempt to set up a legal advisor conference failed.  For that reason, this \ncase was assigned to then-Administrative Law Judge Terry Don Lucy on May 11, \n2022.    Prehearing  questionnaires  were  issued  to  the  parties  on  May  12,  2022.  \nRespondents’  counsel  entered  her  appearance  before  the  Commission  on  May \n13,  2022;  and  her  clients  returned  an  executed  Preliminary  Notice  on  May  16, \n2022.    Because  Claimant  did  not  file  either  a  Preliminary  Notice  or  a  prehearing \nquestionnaire  response,  Judge  Lucy  on  June  9,  2022,  returned  the  file  to the \nCommission’s general files. \n No  further  action  on  this  claim  took  place  until  October  31,  2022,  when  \nRespondents  filed  the instant  Motion  to  Dismiss.    Therein,  they  argued that  over \nsix  months  had  elapsed  since  Claimant  requested  a  hearing  without  her taking \nany other action in pursuit of this claim.  They asserted that dismissal was called \n\nDODSON – H202452 \n3 \n \nfor  under  AWCC  R.  099.13  and  Ark.  Code  Ann.  § 11-9-702(a)(4)  &  (d)  (Repl. \n2012).    The  Commission  on  November  2,  2022, wrote  Claimant,  asking  for a \nresponse to the motion  within  twenty (20) days.  The letter was sent via certified \nand  first-class  mail to  the  address  for  Claimant  listed  in  the  file.    She  signed  for \nthe certified letter on November 7, 2022; and the first-class correspondence was \nnot returned.  Nonetheless, no response to the motion was forthcoming from her. \n On January 4, 2023, a hearing on the Motion to Dismiss was scheduled for \nFebruary 17,  2023,  at  12:0 0  p.m.  at  the  Craighead  County  Courthouse  Annex \nBuilding in Jonesboro.  The notice was sent to Claimant by first-class and certified \nmail  at  the  same  address  as  before.    In  this  instance,  the  certified  letter  was \nclaimed by Claimant on January 11, 2023; and as before, the first-class letter was \nnot  returned.  The evidence  thus preponderates that  Claimant  received notice  of \nthe hearing. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary 17, 2023.  Again, Claimant failed to appear.  But Respondents appeared \nthrough counsel and argued for dismissal of the action under the aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n\nDODSON – H202452 \n4 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996).  (Emphasis added)  In turn, §§ 11-9-702(a)(4) & (d) read: \n(4)   If   within   six   (6)   months   after   the   filing   of   a   claim   for \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing,  be  dismissed  without  prejudice  to  the  refiling  of  the  claim \nwithin  limitation  periods  specified  in  subdivisions  (a)(1)-(3)  of  this \nsection. \n \n. . . \n \n(d)  If  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing, if necessary, be dismissed without prejudice to the refiling \n\nDODSON – H202452 \n5 \n \nof  the  claim  within  limitation  period  specified  in  subsection  (b)  of \nthis section. \n \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove by a preponderance of the evidence that dismissal should be granted.  The \nstandard  “preponderance  of  the  evidence” means  the  evidence  having  greater \nweight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n No  Form  AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing a \n“formal  claim.”   See  Yearwood  v.  Wal-Mart  Stores,  Inc.,  2003  AR  Wrk.  Comp. \nLEXIS  739,  Claim  No.  F201311 (Full  Commission  Opinion  filed  June  17,  2003).  \nSee also Sinclair v. Magnolia Hospital, 1998 AR Wrk. Comp. LEXIS 786, Claim No. \nE703502 (Full Commission Opinion filed December 22, 1998)(a claim is “typically” \nfiled via  a  Form  AR-C).    While  a  Form AR-1  was  filed,  that  does  not  suffice  to \ninstigate a claim.  Id. \n Per Ark. Code Ann. § 11-9-702(c) (Repl. 2012): \nA claim for additional compensation must specifically state that it is \na  claim  for  additional  compensation.    Documents  which  do  not \nspecifically  request  additional  benefits  shall  not  be  considered  a \nclaim for additional compensation. \n \n(Emphasis added)  See White Cty. Judge v. Menser, 2020 Ark. 140, 597 S.W.3d \n640. \n My  review  of  the  Commission’s  file  discloses  one  document  sufficient  to \nconstitute a filing of a claim for additional benefits under the standard cited above.  \n\nDODSON – H202452 \n6 \n \nThat  document  is  Claimant’s  April  18,  2022,  hearing  request, “[r]equesting  an \nappeal for additional [b]en[e]fits.” \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because  she has taken no further action \nin  pursuit  of it  (including  appearing  at  the  February  17,  2023,  hearing  to  argue \nagainst  its  dismissal)  since  the  filing  of  her hearing  request.    Thus,  the evidence \npreponderates that dismissal is warranted under Rule 13.  Because of this finding, \nit is unnecessary to address the application of § 11-9-702. \n That  leaves  the question  of  whether  the  dismissal  of  the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137, 744 S.W.2d 402 (1988).  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS \n510, Claim No. F404774 (Full Commission Opinion filed November 15, 2005), the \nCommission  wrote:    “In  numerous  past  decisions,  this  Commission  and  the \nAppellate  Courts  have  expressed  a  preference  for  dismissals without  prejudice.”  \n(Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v. Strong,  75  Ark. 249, \n629 S.W.2d 284 (1982)).  Respondents at the hearing asked for a dismissal with \n\nDODSON – H202452 \n7 \n \nprejudice.    But  based  on  the  above  authorities, I  find  that  the  dismissal  of  this \nclaim should be and hereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought  on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":9903,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H202452 JORDAN DODSON, EMPLOYEE CLAIMANT OZARK PIZZA CO., LLC, EMPLOYER RESPONDENT INTREPID INS. CO., CARRIER RESPONDENT OPINION FILED FEBRUARY 21, 2023 Hearing before Administrative Law Judge O. Milton Fine II on February 17, 2023, in Jonesboro, Craighead Co...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":["ankle"],"fetchedAt":"2026-05-19T23:10:28.670Z"},{"id":"alj-H101400-2023-02-14","awccNumber":"H101400","decisionDate":"2023-02-14","decisionYear":2023,"opinionType":"alj","claimantName":"Phillip Burks","employerName":"Arkansas Forestry Commission","title":"BURKS VS. ARKANSAS FORESTRY COMMISSION AWCC# H101400 FEBRUARY 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BURKS_PHILLIP_H101400_20230214.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BURKS_PHILLIP_H101400_20230214.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H101400 \n \nPHILLIP L. BURKS, EMPLOYEE       CLAIMANT \n \nVS. \n \nARKANSAS FORESTRY COMMISSION, \nEMPLOYER               RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION \nARKANSAS INSURANCE DEPARTMENT         RESPONDENT \n    \nOPINION FILED FEBRUARY 14, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 17\nth\n day of January, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant is represented by Mr. Daniel A. Webb, Attorney-at-Law, Little Rock, Arkansas. \n \nRespondents are represented by Mr. Charles H. McLemore, Attorney-at-Law, Little Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n A hearing was conducted on the 17\nth\n day of January, 2023, with the issue before \nthe Commission being permanent partial disability or wage-loss and attorney’s fees.  A \ncopy of the Prehearing Order was marked “Commission Exhibit 1” and made part of the \nrecord without objection.  The Order provided that the parties stipulated that the Arkansas \nWorkers’  Compensation  Commission  had  jurisdiction  of  the  within  claim  and  that  an \nemployer/employee  relationship  existed  on  January  25,  2021,  when  the  claimant \nsustained  a  compensable  work-related,  low  back  injury.    At  the  time  of  the  injury,  the \nclaimant was earning an average weekly wage of $574.29 entitling him to a temporary \ntotal disability rate of $383.00 and a permanent partial disability rate of $287.00.       \n The  claimant’s  and  respondents’  contentions  are  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \n\nBURKS – H101400 \n \n2 \n \nobjection.  The sole witness was the claimant, Phillip Burks.  From a review of the record \nas a whole, to include medical reports and other matters properly before the Commission, \nand having had an opportunity to observe the testimony and demeanor of the witness, \nthe  following findings of  fact  and  conclusions  of  law are made  in accordance  with  Ark. \nCode Ann. §11-9-704. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this        \nclaim. \n \n2.  That  an  employer/employee  relationship  existed  on  January  25, 2021,  when \nthe claimant sustained a compensable work-related injury to his lower back that \nwas accepted by the respondents. \n \n3.  That the respondents have paid medical and indemnity benefits. \n \n4.  That at the time of the injury, the claimant was earning an average weekly wage \nof  $574.29,  entitling  him  to  temporary  total  disability  and  permanent  partial \ndisability rates of $383.00 / $287.00, respectively. \n \n5.  The  claimant  was  found  to  be  at  maximum  medical  improvement  (MMI)  on \nAugust 16, 2021, with a ten percent (10%) anatomical impairment rating to the \nbody as a whole. \n \n6.  The claimant has satisfied the required burden of proof, by a preponderance of \nthe evidence, that he is entitled to a ten percent (10%) wage-loss determination \nin addition to his anatomical impairment rating, plus attorney fees pursuant to \nArk. Code Ann. §11-9-715. \n \n7.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n The Prehearing Order along with the prehearing questionnaires of the parties was \nadmitted  into  the  record  without  objection.    The  parties  submitted  a  supplemental \nresponse  to  the  prehearing  filings  which  was  admitted  as “Commission’s  Exhibit  4” \nwithout objection.  In addition, the parties submitted a clinic note from Dr. Roman that was \n\nBURKS – H101400 \n \n3 \n \nadmitted as “Joint Exhibit One” and consisted of two (2) pages.  The claimant submitted \na packet of non-medical exhibits with an index that consisted of thirty-four (34) pages that \nwas admitted into the record without objection.   The claimant also submitted an exhibit \nthat consisted of sixty-five (65) pages of medical records with an index that was admitted \nwithout objection.  The respondents submitted an exhibit of one hundred fourteen (114) \npages  of  medical  records  that  was  also  admitted  without  objection.  Finally,  the \nrespondents  submitted  an  exhibit  which  consisted  of  twenty-three  (23)  pages  of \ncorrespondence and forms that was admitted without objection. \n The  claimant  testified  he  understood  that  the  purpose  for  the  hearing  was  to \nrequest  permanent  partial  disability  or,  in  the  alternative,  wage-loss.    He  stated  he \ngraduated  from  high  school  in  California  and  started  electrical  work  in  1978,  prior  to \ngraduating high school, performing residential apprentice work.  He worked with shovels, \nladders, conduit, and electric wire along with their spools, and performed general labor.  \nHe thought he left California in 1984 or 85.  He obtained a journeyman license in California \nwhich did not transfer to Arkansas when he moved.  His first job in Arkansas was working \nfor  Odom  Mobile  Homes  in  Conway,  performing  electrical  work,  repairing  trailers,  and \nperforming similar work to what he described in California. (Tr.pp. 8-10)  His next job was \nat Ward Bus in Conway and he thought he started on August 3, 1988, and he worked for \ntwenty-five (25) years as an electrician in maintenance, working all over the plant. (Tr.pp. \n11-12)    After  Ward  Bus,  he  went  to  work  for  Springhill  Tire  for  a  year  and  a  half  and \nworked as an auto mechanic, but did not work in the tire department of the business.  His \njob involved lifting starters, transmissions, rear ends, and other heavy work.  When he left \nthere, he went to work for the Arkansas Forestry Commission in 2017 and was working \n\nBURKS – H101400 \n \n4 \n \nthere  when  he  was  injured.    He  has  not  worked  since  his  injury  and  was  eventually \nterminated.  He thought he had worked for them in the shop for five (5) plus years, where \nhe worked on military surplus vehicles.  His job involved going out and determining the \ncost  to  repair  a  military  surplus  vehicle and  if  the  vehicle  was  worth  the  cost  of  repair. \n(Tr.pp. 15-18) \n The work for the Forestry Commission involved heavy lifting, especially involving \nthe   tires   that   probably   weighed   two   or   three   hundred   (200-300)   pounds,   the \ntransmissions,  and  the  batteries  that  probably  weighed  one  hundred  (100)  pounds. \n(Tr.pp. 19-20)  The claimant was injured when he picked up a battery and twisted around.  \nThe respondent got him to Dr. Overley, who performed surgery.  He went in on a Tuesday \nfor outpatient surgery and three (3) days later, due to the pain, went to UAMS for another \nsurgery  on  Friday.    The  claimant  stated  that  after  the  two  (2)  surgeries,  he  was  still \nexperiencing pain.  He agreed he was paid by the respondent until he reached maximum \nmedical  improvement  on  September  13,  2022.  He  then  received  permanent  partial \ndisability from the respondent and expected it to run out around June or July.  He also \ntestified  he  never  had  a  job  in  his  life  that  did  not  involve  heavy  lifting  and  had  never \nworked  as  a  clerk  in  an  office  setting.    He  admitted  still  seeing  Dr.  Roman  who was \nproviding injections for his lower back.  He also thought they had gone in and burnt nerves \nin  his  back.    He  stated  he  currently  had  trouble  walking,  sitting,  sleeping,  twisting  and \npicking stuff up.  Some days were better than others.  He also admitted currently taking \nHydrocodone and Flexeril. (Tr.pp. 23-27)  He received a little relief from Hydrocodone but \nthat Flexeril made him want to sleep. (Tr.p. 28) \n\nBURKS – H101400 \n \n5 \n \n The  claimant  stated  the  Forestry  Commission  ultimately  fired  him  and  they \nprovided no accommodations for a diesel mechanic. (Tr.p.29)  He was absolutely willing \nto  continue  working  for  the  State,  but  they  just  pointed  him  towards  the  public  notice \nboard.  He received an email stating he was terminated because there was no light-duty \nand he had declined the job.  He went on to state no jobs were offered and that, “I did not \ndecline  a  job, period.”   The  claimant also  admitted  he had  received  some  consultation \nfrom a vocational expert.   He testified he planned on returning to work but was not sure \nwhat  he  could  do.  (Tr.pp. 30-31)    He  planned  on  getting  back  in  the  work  force  and \nworking  until  his  mid  60’s.    He came  from  a  long  line  of  people  that  worked  until  like \nseventy-three    (73)   or  seventy-six  (76)  and intended  to  find  a  job  that’s  suitable  to  his \nphysical limitations.  He also admitted he was returning to Dr. Roman on April 19, for a \ncheck-up. (Tr.p. 32)   \nThe  claimant  was  born  on  September  16,  1963,  making  him  over  fifty-nine  (59) \nyears  old  at  the  time of  the hearing.  (Tr.p. 34)  Under  cross-examination,  the  claimant \nadmitted performing electrical work in California and at Ward Bus, and that he had worked \nfour  (4)  years in  an  apprenticeship  in  California  where  he  obtained his  journeymen’s \nlicense.  The claimant also admitted taking some classes at the Community College in \nMorrilton involving electrical matters.  He also admitted obtaining some certificates while \nat  Ward  Bus  which  involved  forklift  driving, hydraulics  and AC.  (Tr.pp.  35-37)    He  also \nadmitted  he  had  obtained  his  commercial driver’s  license,  where he  had to  read  some \nbooks and take a written test and he still  maintained the license.  He also admitted he \nwas a union steward at one point and was one of twenty (20) elected officials.  As a union \nsteward, a member would approach him with a problem and one of his duties would be \n\nBURKS – H101400 \n \n6 \n \nto  investigate  the  issue  which  required  keeping  records  and  paperwork.    The  job  also \nrequired keeping up with the union dues “to a point.” (Tr.pp. 38-41)  He admitted holding \nseveral positions with the union and keeping records on the computer and being capable \nof using emails. (Tr.pp. 42-43)  While working for the Forrest Service, he used a book or \nmanual to provide part numbers for repairs. (Tr.p. 44) \n The claimant received significant conservative treatment prior to the surgery on his \nlower  back  which he  had  tried  to  avoid.    He  had  previously  had  surgeries on  both \nshoulders involving his rotator cuffs.  He also admitted to a previous collapsed lung which \nrequired  surgery  and  a  history  of  stroke,  with  at  least  six  (6)  strokes  that  he  knew  of.  \n(Tr.pp. 47-48)  The claimant also admitted that after the back surgeries, the sciatic nerve \npain in both legs subsided, but he still had back issues and that’s the reason he’s currently \nseeing Dr. Roman.  In regard to the injections and relief, he responded, “sometimes you \nfeel  like  you’re  doing  all  right,  and  then  you’re  right  back  where  you  started.” \n(Tr.pp. 49-50) \n The claimant also admitted the medications and injections that he was receiving \nhelped  a  little  sometimes.    He  could  sit  still  or  stand  for  about  five  (5)  minutes,  before \nhaving to move and change positions.  He admitted being able to pick up a gallon of milk \nat the grocery store and grocery shopping.  He also remembered his functional capacity \nexamination and stated he was looking for work, but had not applied for a job at the time \nof the hearing.  He admitted driving himself to Illinois after the accident.  While there, he \nshot a deer by himself. (Tr.pp. 53-57) \n The claimant denied working anywhere since January of 2022.  He also admitted \nbeing contacted by his employer after the functional capacity exam and being released \n\nBURKS – H101400 \n \n7 \n \nby  his  physician  at  maximum  medical  improvement.    He  admitted  meeting  with  his \nemployer  and  wanting  to  keep  his  mechanic  job.    He  denied  talking  to  them  about  a \ndifferent  job.  (Tr.pp. 58-59)    He  testified  they  did  not  have  any  accommodations  for  a \nmechanic job and later receiving a letter that his employment was terminated.  He also \nadmitted  seeing  the  vocational  rehabilitation  counselor  and  the  possibility  of  exploring \nwork outside of the Forestry Commission. (Tr.pp. 60-61)  He received a follow-up report \non  January  10  that  provided  a  list  of  jobs  in  and  around  Greenbrier  and  Conway  and \nstated he planned on following up with the list. (Tr.p. 62)  The claimant also admitted to \napplying for unemployment, but had received a letter stating that he was not apparently \ngoing to receive any, and planning to appeal the decision. (Tr.p. 64)  In regard to pursuing \nthe  jobs  listed,  the  claimant  responded, “I  plan  on  working  somewhere,  some  way, \nsomehow.  That’s my goal” (Tr.p. 65) \n On redirect, the claimant testified he did not receive a response to the question of \nwhat jobs were available.  He would be willing to work at a job where he did not have to \npick  up  batteries  but  never  received  an  offer.      (Tr.p.  66)    The  claimant  also  admitted \ncurrently  having  trouble  with  his  shoulders,  with  the  surgery  on  his  shoulders  around \n2004.  He went on to state his shoulders are about the same.  Besides the strokes, he \nwas not aware of any additional health problems.  (Tr.pp. 67-68) \n On  recross,  the  claimant  admitted  he  had  an  in-person  meeting  with  the \nrespondent and that he did not get as far as asking if there were any other jobs available \nbut did request an accommodation for light duty as a mechanic. (Tr.pp. 69-70) \n In  regard  to  exhibits,    the  Commission  submitted  six  (6)  pages  of  additional \nevidence admitted without objection, which included the respondent’s prehearing filing in \n\nBURKS – H101400 \n \n8 \n \nregard to the hearing set for January 17, 2022.  In addition, the parties submitted a joint \nexhibit which consisted of two (2) pages of a clinic note dated January 11, 2023, from Dr. \nRoman.    The  note  provided  the  claimant  was  a  fifty-nine  (59)  year  old  gentleman  that \nsuffered  with  severe low  back  pain  with  degenerative  disc  disease.    The  claimant  had \ninjured his back while lifting a heavy battery.  He ultimately had surgery by Dr. Overley, \nwith  a  laminectomy  and  discectomy  at  the  L4-L5  level,  that  was  complicated  by  an \nepidural abscess that had to be re-drained.  A rhizotomy was performed at L2-3, L3-4, \nand L4-5, bilaterally.  The main issue today was his work status.  The FCE has him at \nlight duty and I think that this is appropriate.  As far as Social Security Disability, “he is a \ndeserving individual.”  (Jt. Ex. 1) \n “Claimant’s Exhibit 1”, consisting of thirty-four (34) pages of non-medical reports, \nwas admitted without objection.  A letter from the Arkansas Insurance Department dated \nNovember 16, 2022, provided the claimant reached maximum medical improvement on \nSeptember  13,  2022,  and  that  Dr.  Roman  assigned  a  whole-body  impairment  of  ten \npercent  (10%)  due  to  the  claimant’s  lumbar  spine  injuries  from  01/25/2021.  (Cl. \nEx. 1, p. 3)  The exhibit also contained a Vocational Rehabilitation Initial Evaluation dated \nDecember 15, 2022.  The report referred to a report that the claimant reached maximum \nmedical  improvement  on  September  13,  2022,  as  determined  by  Dr.  Samuel  Overley.  \nThe report also indicated a reliable effort was put forth on fifty-three (53) of the fifty-three \n(53) consistency measures and the claimant demonstrated the ability to perform stooping, \ncrouching, climbing stairs, push and pull a cart, and kneeling occasionally.  “He exhibited \nlimitations  with  the  ability  to  perform  an  occasional  bi-manual  lift/carry  of  up  to  twenty \n\nBURKS – H101400 \n \n9 \n \npounds.” (Cl.Ex.1, pp. 4-12)  The exhibit also included the Functional Capacity Evaluation \nthat was referred to in the report. (Cl.Ex.1, pp. 13-32) \n The claimant also submitted forty-five (45) pages of medical records admitted into \nthe record without objection.  An Independent Medical Evaluation dated by October 17, \n2022,  by  Dr.  Carlos  Roman,  provided  the  claimant  had  been  seen  by  Dr.  Overley  at \nUAMS, who, after conservative treatment by both Dr. Overley and Dr. Smith, performed \na diskectomy at L4-L5.  From an interventional standpoint, epidural injections would not \nbe indicated but a facet rhizotomy which included the L2-3, L3-4, and L4-5 facets had the \npotential to attenuate the back pain.  The claimant does not need further surgeries and \nDr. Overley also stated that. (Cl. Ex. 2, pp. 1-2) \n The  claimant  was  seen  by  Dr.  Michael  Cassat  on  February  8,  2021,  and  x-rays \nprovided the claimant had multilevel degenerative changes without evidence of instability. \n(Cl.Ex.2, pp.  3-4)    The  claimant  returned  to  Dr.  Cassat  on  February  25,  2021,  and \ndiscussed his MRI which showed a large central/extraforaminal disc at L3-4 and also at \nthe adjacent segment. (Cl. Ex. 2, pp. 5-6)  The claimant returned to Dr. Cassat on April \n7,  2021,  with  the  complaint  of  bilateral  leg  pain.  The  report  provided  for  degenerative \nchanges of the intervertebral discs at the T11-12 and T12- L1.  The L1-2 intervertebral \ndiscs  demonstrated  a  diffuse  disc  bulge  with  an  annular  tear,  but  with  no focal  disc \nprotrusion.  The L2-3 intervertebral disc demonstrated a moderate bulge with a left sided \nannular  tear  and  a  small  disc  protrusion  with  mild  spinal  canal  narrowing.    The  L3-4 \nintervertebral disc demonstrated a moderate bulge with a broad- based protrusion and an \nassociated  disc  extrusion.    The  L4-5  intervertebral  disc  demonstrated  a  moderate  disc \nbulge with a broad-based left paracentral/subarticular disc protrusion which resulted in a \n\nBURKS – H101400 \n \n10 \n \nmild spinal canal narrowing.  The passing left L5 nerve root was focally in contact with \nthis  disc.    The  L5-S1  intervertebral  disc  demonstrated  a  mild  bulge  with  a small  focal \ncentral protrusion. (Cl. Ex. 2, pp. 7-10) \n The claimant was seen by Dr. Samuel Overley on May 18, 2021, for low back pain \nthat  radiated  bilaterally  down  both  legs.    He was  wanting  to  exhaust  all  conservative \nmeasures before discussing surgery.  The report provided Dr. Overley felt that a round of \ninjections  targeting  the  L5  nerve  roots  would  give  him  some  improvement  of  his pain \nsymptoms. (Cl. Ex. 2, pp. 11-16)  The claimant returned to Dr. Overley on September 21, \n2021, reporting he thought his pain was worse and he  wanted to proceed with another \nround of epidural steroid injections. (Cl. Ex. 2, pp. 17-18)  Approximately two (2) months \nlater, the claimant again returned to Dr. Overley on November 16, 2021, still wanting to \navoid surgical intervention and had made some improvements. (Cl. Ex. 2, pp. 19-20)  The \nclaimant returned to Dr. Overley on February 8, 2022, prior to his surgery on February \n15, 2022.  The report provided that the conservative therapies had thus far only provided \nlimited  relief.    Two  (2)  types  of  surgeries  were  discussed.  (Cl.  Ex.  2, pp.  21-22)    The \nclaimant returned to Dr. Overley, following his post L5-S1 microdiscectomy on February \n15, 2022, and his postoperative wound irrigation and debridement  three (3) days later.  \nThe  report  provided  the  claimant  continued  to  have  a  resolution  of  his  pre-operative \nradicular symptoms but was still having post-operative back pain. (Cl. Ex. 2, pp. 23-24)   \nOn September 13, 2022, the claimant presented to Dr. Clay for his continued back \npain and his occasional left lower extremity pain.  He denied any new symptoms. (Cl. Ex. \n2, pp.  25-26)      A    report   of    the    surgery   on   February   15,    2022,    by    Dr.    Overely \nprovided   that   a   L4-5   hemilaminotomy,   foraminotomy,   and   microdiskecttomy was \n\nBURKS – H101400 \n \n11 \n \nperformed. (Cl. Ex. 2, pp. 27-29)  The claimant presented three (3) days later to UAMS, \ndue  to  a  severe  thecal  sac  compression.  (Cl.  Ex.  2, pp.  30-36)      The  MRI  report  of \nFebruary 25, 2021, provided multilevel disc degenerative changes in the lower thoracic \nand lumbar spine with disc extrusions at the L2-3, L3-4, with the L3-4 intervertebral discs, \nresulting in severe compromise of the passing right L4 nerve root and the exiting right L3 \nnerve root. (Cl. Ex. 2, pp. 37-39)  The CT of the lumbar spine, dated February 10, 2022, \nprovided multilevel disc bulging at L2-3, L3-4 and L4-5 was present with no moderate or \nsevere canal stenosis and mild to moderate bilateral foraminal stenosis at the L4-5 level. \n(Cl. Ex. 2, pp. 40-41)  Claimant’s final report was an MRI dated July 5, 2022.  The report \nprovided  congenital  spinal  canal  stenosis  was  most  pronounced  at  L2-3,  appearing \nmoderate with multilevel retrolisthesis. In addition, the report provided for  an interval L4 \nleft  hemilaminotomy  with a granulation of  tissue  in  the  surgical  bed  that  partially \nsurrounded the descending left L5 nerve root. There was a possible seroma adjacent to \nthe L4 spinous process. (Cl. Ex. 2, pp. 42-43) \nThe  respondents  also  submitted  one  hundred  fourteen  (114)  pages  of  medical \nrecords that were admitted without objections.  Many of these medical records were also \nintroduced by the claimant.  The claimant originally presented to MedExpress on January \n27, 2021, stating he injured his back while picking up one hundred 100 pound batteries. \n(Resp.  Ex.  1, pp.  1-3)    The  claimant  returned  on  February  2,  2021,  with  continued \nconstant back pain. (Resp. Ex. 1, pp. 4-6)  Progress notes dated April 19, 2021, provided \nfor  epidural  steroid  injections  by  Dr.  Gregory  Smith on the  right  side of L3-4  and L4-5. \n(Resp. Ex. 1, pp. 19-22)  The claimant then presented to Dr. Gary Bowman on April 30, \n2021, due to his history of strokes to obtain clearance for his lower back surgery.  The \n\nBURKS – H101400 \n \n12 \n \nreport recommended a further evaluation by cardiology and possibly neurology so that a \nsafe elective surgery could be performed.  (Resp. Ex. 1, pp. 25-28)  The claimant received \na  transforaminal  epidural  steroid  injection  on  June  1,  2021,  and  July  27,  2021,  by  Dr. \nSheffield Kent. (Resp. Ex. 1, pp. 35, 40, 41)  In addition, the claimant received bilateral \nL4-5  facet  joint  blocks  on  August  3,  and  August  21,  2021,  by  Dr.  Kent.  (Resp. \nEx.  1, pp.  42-45)  The  claimant  received  an  additional  transforaminal  epidural  steroid \ninjection on the left side of L5-S1 on October 12, 2021, again by Dr. Kent. (Resp. Ex. 1, \npp.  48-49)  Dr.  Kent  provided  the  claimant  a  bilateral  sacroiliac  joint  corticosteroid \ninjection on August 9, 2022. (Resp. Ex. 1, pp. 73-74)  On September 2, 2022,  the claimant \nreceived pain management by Desiree Herman who opined the claimant would be a good \ncandidate  for  a  spinal  cord  stimulator.  (Resp.  Ex.  1,  pp. 75-77)    The  claimant  was \ndischarged  from  physical  therapy  on  September  14,  2022,  with  the  report  provided  by \nDarren  Beckham,  DPT,  PT.  (Resp. Ex. 1, pp. 80-81)  The  claimant  then  returned  for \na caudal  epidural  steroid  injection  by  Dr.  Kent  on  September  15,  2022.  (Resp. Ex. \n1, pp. 84-85)   \nThe respondents also submitted twenty-three (23) pages of correspondence and \nforms  without  objection.    A  letter  from  the  Arkansas  Department  of  Agriculture  and \naddressed  to  the  claimant  provided  that  the  FCE  indicated  he  would, “not  be  able  to \nperform essential  functions  of  your  job.”    The  letter  also  provided  if  the  claimant  was \nrequesting  an  accommodation  to  continue  his  employment  with  the  Department,  he \nshould let them know within ten (10) days or they will have to terminate his employment. \n(Resp. Ex. 2, p.7) \n\nBURKS – H101400 \n \n13 \n \nThe Vocational Rehabilitation Initial Evaluation provided the claimant possessed \ntransferable skills due to his knowledge of tools, machines, and methods used in trades \nor  craft  specialties,  and  he  could  use  these  skills  in  regard  to  reading  and  reviewing \ndrawings  or  blueprints,  with  the  ability  to  use  shop  math,  hand  tools,  or  machines  in \nconstructing    or    making    and    repairing    objects    and    adhering    to    specifications    or \nstandards.   The  report  also  stated  the  claimant  possessed  a  “great  work  history.”  \n(Resp. Ex. 2, pp. 14-15)   \nThe Department of Agriculture mailed a termination of employment to the claimant \ndated December 20, 2022, which provided the claimant had reached maximum medical \nimprovement, had met with his supervisor,  and had asked if he could just perform light \nduty  tasks  associated with  mechanic  work.  The  letter  went on  to provide, “there  is  no \nlight heavy equipment mechanic position, and one cannot be created for you.”  You were \noffered the opportunity to review a list of other job options within the Department, and you \ndeclined. (Resp. Ex. 2, p.17)  Finally, a Vocational Rehabilitation Progress Report was \nintroduced  that  provided  the  claimant  qualified  for  repetitive  bench  or  line  assembly \noperations  to  mass-produced  products,  a  car  wash  attendant,  an  electrical assembler, \nand an inspector of motor vehicles making up to $20.00 an hour depending on the job \nobtained. (Resp. 2, pp.19-21)       \nDISCUSION AND ADJUDICATION OF ISSUES \nThe claimant has the burden of proving, by a preponderance of the evidence, that \nhe is entitled to compensation benefits under the Arkansas Workers’ Compensation Law.  \nIn determining whether the claimant has sustained the burden of proof, the Commission \nshall weigh the evidence impartially, without giving the benefit of the doubt to either party.  \n\nBURKS – H101400 \n \n14 \n \nArk. Code Ann. §11-9-704.  Wade v. Mr. Cavananugh’s, 298 Ark. 364, 768 S.W. 2d 521 \n(1989).  Further, the Commission has the duty to translate evidence on all issues before \nit into findings of fact.  Weldon v. Pierce Brothers Construction Co., 54 Ark. App. 344, 925 \nS.W.2d 179 (1996). \n‘Permanent  benefits  shall  be  awarded  only  upon  a  determination  that  the \ncompensable injury was the major cause of the disability or impairment.”  Ark. Code Ann. \n§11-9-102(4) (F) (ii) (a).  Here the claimant’s back injury was accepted as compensable.  \nWage-loss is the extent to which a compensable injury has affected the claimant’s ability \nto earn a livelihood.  Taggart v. Mid. Am. Packaging, 2009 Ark. App. 335, 308 S.W.3d \n647.    In  considering  claims  for  permanent  partial  disability  benefits  in  excess  of  the \nemployee’s percentage of permanent physical impairment, the Commission may take into \naccount, in addition to the percentage of permanent physical impairment, such factors as \nthe employee’s age, education, work experience, and other matters reasonably expected \nto affect his or her future earning capacity. Ark. Code Ann. §11–9–522(b)(1).  There are \nother  matters  to  be  considered  as  well:  motivation,  post  injury  income,  credibility  and \ndemeanor, among other factors.  See Taggart supra.  Also see Glass v. Edens, 233 Ark. \n786, 346 S.W.2d 685 (1961); Oller v. Champion Parts Rebuilders, 5 Ark. App. 307, 635 \nS.W.2d  276  (1982);   Hope  School  District  v.  Charles  Wilson,  2011  Ark.  App. 219,  382 \nS.W.3d 782 (2011).   \nWage-loss  is  the  degree  to  which  the  compensable  injury  has  affected  the \nclaimant’s  earning  capacity.    The  extent  of  disability  is  a  question  of  fact  for  the \nCommission.  Cross v. Crawford County Memorial Hospital, 54 Ark. App 130, 923 S.W.2d \n886 (1996).  The Commission is charged with assessing wage-loss on a case by case \n\nBURKS – H101400 \n \n15 \n \nbasis.  The award of wage-loss is not a mathematical formula but a judicial determination \nbased   on   the   Commission’s   knowledge   of   industrial   demands,   limitations, and \nrequirements. Henson v. General Electric, 99 Ark. App. 129, 257 S.W. 3d 908 (2008).  \nPursuant to Ark. Code Ann. § 11-9-522(b)(1), when a claimant has an impairment \nrating to the body as a whole, the Commission has the authority to increase the disability \nrating  based  upon  wage-loss  factors.    The  wage-loss  factor  is  the  extent  to  which  a \ncompensable  injury  has  affected the  claimant’s  ability  to  earn  a  livelihood.   Emerson \nElectric v. Gaston, 75 Ark. App.232, 58 S.W.3d 848 (2001).  Objective and measurable \nphysical findings which are necessary to support a determination of “physical impairment” \nor  anatomical  disability  are  not  necessary  to  support  a  determination  of  wage-loss. \nArkansas Methodist v. Adams, 43 Ark. App. 1, 858 S.W.2d (1993).  \nIn the present matter, we have a claimant who was over fifty-nine (59) years of age \nat the time of the hearing and a high school graduate.  He had obtained a journeyman’s \nelectrician license in California but the license would not transfer to Arkansas when he \nmoved.  He obtained his CDL and had maintained it.  He worked and obtained a variety \nof  certificates  from  classes  through  his  work  to  improve  his  situation.    He  sought \nconservative treatment until it became clear he was going to be required to have surgery \nin order to return to work.  He has a history of a good work ethic that was even noted by \none of his treating physicians, Dr. Roman.  He has worked his entire life in occupations \nthat  required  physical  labor  and  has  never  worked  a  “desk  job.”   He  stated, “I  plan  on \nworking somewhere, someway, somehow.  That’s my goal.”  His motivation to return to \nwork is believable.  He was assigned a ten percent (10%) whole-body impairment rating \nwhich was confirmed by a second physician.   \n\nBURKS – H101400 \n \n16 \n \nIt is noted that he did drive by himself to Illinois for a family matter, but he was not \non a schedule like a driver who was employed to get to a destination at a set time.  He \ncurrently has difficulty standing or sitting for a period of time and his testimony in regard \nto  this is  believable.    The  Functional  Capacity  Evaluation  provided  the  claimant  could \nreturn to work in the light classification of physical demands and that he demonstrated \nthe  ability  to  perform  stooping,  crouching,  climbing  stairs,  push  and  pull  a  cart,  and \nkneeling occasionally. “He exhibited limitations with the ability to perform an occasional \nbi-manual lift/carry of up to twenty pounds.”   \nBased upon the above findings and the claimant being placed in the category of \nlight duty, and after reviewing the evidence impartially,  it is found that the claimant has \nsatisfied his burden of proof, by a preponderance of the evidence, that he is entitled to a \nten  percent  (10%)  wage-loss  determination  in  addition  to  his  anatomical  impairment \nrating, plus attorney fees pursuant to Ark.Code Ann. §11-9-715. \nIf not already paid, the respondents are ordered to pay the cost of the transcript \nforthwith. \nIT IS SO ORDERED.   \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":31455,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H101400 PHILLIP L. BURKS, EMPLOYEE CLAIMANT VS. ARKANSAS FORESTRY COMMISSION, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION ARKANSAS INSURANCE DEPARTMENT RESPONDENT OPINION FILED FEBRUARY 14, 2023 Hearing before Administrative Law Judge, James D. Kenn...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["back","lumbar","thoracic","repetitive"],"fetchedAt":"2026-05-19T23:10:20.410Z"},{"id":"alj-H203656-2023-02-14","awccNumber":"H203656","decisionDate":"2023-02-14","decisionYear":2023,"opinionType":"alj","claimantName":"Anna Johnson","employerName":"Fayetteville Housing Authority","title":"JOHNSON VS. FAYETTEVILLE HOUSING AUTHORITY AWCC# H203656 FEBRUARY 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JOHNSON_ANNA_H203656_20230214.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_ANNA_H203656_20230214.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H203656 \n \nANNA JOHNSON, Employee      CLAIMANT \n \nFAYETTEVILLE HOUSING AUTHORITY, Employer   RESPONDENT \n \nARKANSAS MUNICIPAL LEAGUE, Carrier/TPA    RESPONDENT \n \n \n OPINION FILED FEBRUARY 14, 2023  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by, KAREN H. MCKINNEY, Attorney at Law, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \n On  May  17,  2022,  the  claimant’s  previous  attorney,  Wesley  Cottrell,  filed  an  AR-C \nrequesting various compensation benefits, alleging injuries to her right knee on or about April 7, \n2022. The claim was controverted in its entirety. The matter was set for  a prehearing telephone \nconference. However, before the prehearing  conference could take place,  on July 20, 2022,  Mr. \nCottrell  filed  a  Motion  to  Withdraw  and  on  July  26,  2022,  I  entered  an  Order  allowing  him  to \nwithdraw as claimant’s counsel. No further action was taken on this claim. \n On  November  28,  2022,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim  be  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for  January  24,  2023. \nNotice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on \nDecember 2, 2022. United States Postal Department records indicate that claimant received and \n\nJohnson – H203656 \n \n-2- \nsigned for the notice on  December 10, 2022.  Despite having received notice of the hearing, the \nclaimant did not appear at the hearing, nor did she contact the Commission in any manner.  \nAfter  a  review of  the  respondents’  Motion  to  Dismiss,  the  claimant’s lack  of  response \nthereto,  and  her  failure  to  appear  at  the  scheduled  hearing,  as  well  as  all  other  matters  properly \nbefore  the  Commission,  I  find  that  the  respondents’  Motion  to  Dismiss  should  and  hereby  is \ngranted pursuant to Commission Rule 099.13. This dismissal is without prejudice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2396,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H203656 ANNA JOHNSON, Employee CLAIMANT FAYETTEVILLE HOUSING AUTHORITY, Employer RESPONDENT ARKANSAS MUNICIPAL LEAGUE, Carrier/TPA RESPONDENT OPINION FILED FEBRUARY 14, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian ...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["knee"],"fetchedAt":"2026-05-19T23:10:22.441Z"},{"id":"alj-H000230-2023-02-14","awccNumber":"H000230","decisionDate":"2023-02-14","decisionYear":2023,"opinionType":"alj","claimantName":"Wesley Wright","employerName":"Les Rogers Inc","title":"WRIGHT VS. LES ROGERS INC. AWCC# H000230 FEBRUARY 14, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WRIGHT_WESLEY_H000230_20230214.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WRIGHT_WESLEY_H000230_20230214.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H000230 \n \nWESLEY WRIGHT, Employee      CLAIMANT \n \nLES ROGERS INC., Employer      RESPONDENT \n \nTRAVELERS INDEMNITY CO., Carrier/TPA       RESPONDENT \n \n \n OPINION FILED FEBRUARY 14, 2023  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by, AMY C. MARKHAM, Attorney at Law, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \n On  February  27,  2020,  December  10,  2021,  and  May  13,  2022,  the  claimant’s  previous \nattorney,  Laura  Beth  York,  filed  an  AR-C requesting  various  compensation  benefits,  alleging \ninjuries  to  his  left  and  right  ribs,  left  lung,  left  shoulder  and  other  whole  body  on  or  about \nJanuary 9, 2020. Thereafter, on  August 15, 2022,  Ms. York filed a Motion to Withdraw and on \nAugust 25, 2022, the Full Commission entered an Order allowing her to withdraw as claimant’s \ncounsel. No further action was taken on this claim. \n On  November  21,  2022,  the  respondents  filed  a  Motion  to  Dismiss  requesting  that  this \nclaim  be  dismissed  for  lack  of  prosecution.  A  hearing  was  scheduled  for  January  24,  2023. \nNotice  of  that  hearing  was  sent  to  the  claimant  by  certified  mail,  return  receipt  requested  on \nDecember 2, 2022. That notice was returned by the United States Postal Department with a new \n\nWright – H000230 \n \n-2- \naddress  and  the  notation “Forward  Time  Expired.  Return  to  Sender.”  On  December  12,  2022, \nnotice  was  sent  to  the  claimant  at  his  new  address.  United  States  Postal  Department  records \nindicate  that  the  notice  was  received  and  signed  for  on  December  15,  2022.  Despite  having \nreceived notice of the hearing, no one on the claimant’s behalf appeared at the hearing, nor was \nany contact made with the Commission. \nAfter  a  review of  the  respondents’  Motion  to  Dismiss,  the  claimant’s lack  of  response \nthereto,  and  his  failure  to  appear  at  the  scheduled  hearing,  as  well  as  all  other  matters  properly \nbefore  the  Commission,  I  find  that  the  respondents’  Motion  to  Dismiss  should  and  hereby  is \ngranted pursuant to Commission Rule 099.13. This dismissal is without prejudice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2619,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H000230 WESLEY WRIGHT, Employee CLAIMANT LES ROGERS INC., Employer RESPONDENT TRAVELERS INDEMNITY CO., Carrier/TPA RESPONDENT OPINION FILED FEBRUARY 14, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:10:24.551Z"},{"id":"alj-H109984-2023-02-13","awccNumber":"H109984","decisionDate":"2023-02-13","decisionYear":2023,"opinionType":"alj","claimantName":"Shauna Torrence","employerName":"Lafayette County School District","title":"TORRENCE VS. LAFAYETTE COUNTY SCHOOL DISTRICT AWCC# H109984 FEBRUARY 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/TORRENCE_SHAUNA_H109984_20230213.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"TORRENCE_SHAUNA_H109984_20230213.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H109984  \n \nSHAUNA D. TORRENCE, \nEMPLOYEE                                                                                                              CLAIMANT \n \nLAFAYETTE COUNTY SCHOOL DISTRICT, \nEMPLOYER                                                                                                         RESPONDENT  \n                                 \nARKANSAS SCHOOL BOARDS ASS’N \nWORKERS’ COMPENSATION TRUST (WCT), \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER FILED FEBRUARY 13, 2024 \nTO DISMISS THE PARTIES’ JOINT AND AGREED MOTION TO DISMISS \nWITHOUT PREJUDICE FILED FEBRUARY 7, 2023 \n \nHearing conducted on Thursday, February 9, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in El Dorado, \nUnion County, Arkansas. \n \nThe claimant was represented by the Honorable Gregory R. Giles, Texarkana, Miller County, \nArkansas. \n \nThe respondents were represented by the Honorable Melissa Wood, Worley, Wood & Parrish, \nP.A., Little Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Thursday, February 9, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2022 \nLexis Replacement) and Commission Rule 099.13 (2022 Lexis Repl.). \n The claimant  filed a letter motion  to dismiss (MTD) without prejudice filed on or about \nFebruary  7,  2023,  requesting  this  claim  be  dismissed  without  prejudice  for  lack  of  prosecution. \nThe  respondents  did  not  object  to  this  MTD,  and  in  fact  joined  into  the  claimant’s  motion \n(Respondents’ Exhibit 1 at 7). The claimant’s attorney explained on the record that the claimant \nwas not ready to proceed with her claim at this time; that he had visited with her concerning the \n\nShauna D. Torrence, AWCC No.: H109984 \n \n2 \n \nsubject  MTD  without  prejudice  and  answered  any  all  questions  she  may have  had;  and  that  the \nclaimant understood and agreed the claim should be dismissed without prejudice at this time.  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4) (2022 Lexis Repl.), as well as our court \nof appeals’ ruling in Dillard vs. Benton County Sheriff’s Office, 87 Ark.  App. 379, 192 S.W.3d \n287 (Ark. App. 2004), the Commission scheduled and conducted  a hearing on the parties’ joint \nMTD. Rather than recite a detailed analysis of the record, suffice it to say the preponderance of \nthe evidence introduced at the hearing and contained in the record conclusively demonstrates the \nparties’ joint MTD should be granted since the claimant, by her own admission, is not ready to \nproceed at this time. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. After having received due and legal notice of the claimant’s letter MTD filed on or \n                  about February 7, 2023, the respondents did not object to the motion, and in fact \n                  agreed with and joined into it, thus making the motion a joint and agreed MTD \n                  without prejudice. \n \n 3. Therefore, for all the aforementioned reasons and based on the claimant’s letter \n                   MTD without prejudice filed with the Commission on or about February 7, 2023, \n                   to which the respondents did not object but in fact agreed and joined, I find the \n                   parties’ joint and agreed motion should be and hereby is GRANTED. \n      \n      4.        Consequently, this claim is dismissed without prejudice to its refiling pursuant to \n                 the deadlines prescribed by Ark. Code Ann. § 11-9-702(a) and (b), and Commission \n                 Rule 099.13. \n\nShauna D. Torrence, AWCC No.: H109984 \n \n3 \n \n \n This opinion and order shall not be construed to  prohibit the  claimant, her attorney,  any \nattorney she may retain in the future, or anyone acting legally and on her behalf from refiling this \nclaim if it is refiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) \nand (b). \n The respondents shall pay the court reporter’s invoice within ten (10) days of their receipt \nthereof. \n IT IS SO ORDERED.                                                                                                                                       \n                                                                        ______________________________ \n                                                                        Mike Pickens \n                                                                                    Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5182,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H109984 SHAUNA D. TORRENCE, EMPLOYEE CLAIMANT LAFAYETTE COUNTY SCHOOL DISTRICT, EMPLOYER RESPONDENT ARKANSAS SCHOOL BOARDS ASS’N WORKERS’ COMPENSATION TRUST (WCT), INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED FEBRUARY 13, 2024 TO DISMISS THE PAR...","outcome":"granted","outcomeKeywords":["dismissed:1","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:10:18.336Z"},{"id":"alj-H010489-2023-02-10","awccNumber":"H010489","decisionDate":"2023-02-10","decisionYear":2023,"opinionType":"alj","claimantName":"John Baker","employerName":"Performance Food Group, Inc","title":"BAKER VS. PERFORMANCE FOOD GROUP, INC. AWCC# H010489 FEBRUARY 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BAKER_JOHN_H010489_20230210.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BAKER_JOHN_H010489_20230210.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H010489 \n \n \nJOHN A. BAKER, EMPLOYEE CLAIMANT \n \nPERFORMANCE FOOD GROUP, INC., \n EMPLOYER RESPONDENT \n \nINDEMN. INS. CO. OF NO. AM., \n CARRIER RESPONDENT \n \n \nOPINION FILED FEBRUARY 10,  2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on February 8, 2023, in \nLittle Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  David  C.  Jones,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    A  hearing  on  the  motion  was  conducted  on  February  8,  2023,  in \nLittle  Rock,  Arkansas.    No  testimony  was  taken  in  the  case.    Claimant,  who \naccording  to  Commission  records  is pro  se,  failed  to  appear  at  the  hearing.  \nWithout objection, the Commission file on this claim has been incorporated herein \nin  its  entirety  by  reference.  Admitted  into  evidence  was  Respondents’  Exhibit  1, \nforms,  pleadings  and  correspondence  related  to  the  claim,  consisting  of 28 \nnumbered pages. \n\nBAKER – H010489 \n2 \n \n The record reflects the following procedural history: \n On  or  about  December  16,  2020,  a  Form  AR-1  was  filed  in  this  case, \nreflecting  that  Claimant  purportedly  sustained  an  injury  to  his  left  shoulder  on \nAugust  3,  2020, while  lifting  a  case  of  product  during  the  making  of  a  delivery.  \nAlso  on  December  16,  2020,  Respondents  filed  a  Form  AR-2,  representing  that \nthey accepted the injury as compensable and were paying medical and indemnity \nbenefits pursuant thereto.  Claimant has not filed a Form AR-C. \n Attorney  Daniel  E.  Wren  entered  his  appearance  before  the  Commission \non  this  matter  on  April  23,  2021.    However,  he  filed  a  motion  to  withdraw  on \nAugust 12, 2021.  In an  order entered on August 25, 2021, the Full  Commission \ngranted the motion under AWCC Advisory 2003-2. \n On  December  5,  2022  ,  Respondents  filed  the  instant  Motion  to  Dismiss \nand  brief  in  support  thereof.    Therein,  they  argued  that  over  six  months  had \nelapsed  without  Claimant  requesting  a  hearing  or  taking  any  other  action  in \npursuit of his claim.  They also asserted that it had been more than a year since \nhe had undergone any authorized treatment on his shoulder.  The Commission on \nDecember  16,  2022, wrote  Claimant,  asking  for  a  response  to  the  motion  within \ntwenty  (20)  days.    The  letter  was  sent  via  certified  and  first-class  mail to  the \naddress for Claimant listed  in the file.  “Vicki Baker” signed for the certified letter \non December  28,  2022;  and  the  first-class  correspondence  was  not  returned.  \nNonetheless, no response to the motion was forthcoming from Claimant. \n\nBAKER – H010489 \n3 \n \n On  January  10,  2023,  a  hearing  on  the  Motion  to  Dismiss  was  scheduled \nfor  February  8,  2023, at  9:30  a.m.  at  the  Commission  in  Little  Rock.  The notice \nwas  sent  to  Claimant  by  first-class  and  certified  mail  at  the  same  address  as \nbefore.    In  this  instance,  the  certified  letter  was  claimed  by  Claimant  on  January \n13, 2023; and as before, the first-class letter was not returned.  The evidence thus \npreponderates that Claimant received notice of the hearing. \n The   hearing   on   the   Motion   to   Dismiss   proceeded   as   scheduled   on \nFebruary 8, 2023.  Again, Claimant failed to appear.  But Respondents appeared \nthrough  counsel  and  argued  for  dismissal  of  the  action  under  AWCC  R.  099.13 \nand Ark. Code Ann. § 11-9-702(a)(4) & (d) (Repl. 2012). \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \n2. No Form AR-C has ever been filed in connection with his matter. \n3. No other document before the Commission in this matter constitutes \na claim for additional benefits. \n4. Respondents’ Motion  to  Dismiss  is  denied  because  no  claim  exists \nto be subject to dismissal. \n\nBAKER – H010489 \n4 \n \nIII.  DISCUSSION \n AWCC 099.13 provides: \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996).  (Emphasis added)  In turn, §§ 11-9-702(a)(4) & (d) read: \n(4)   If   within   six   (6)   months   after   the   filing   of   a   claim   for \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing,  be  dismissed  without  prejudice  to  the  refiling  of  the  claim \nwithin  limitation  periods  specified  in  subdivisions  (a)(1)-(3)  of  this \nsection. \n \n. . . \n \n(d)  If  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing, if necessary, be dismissed without prejudice to the refiling \nof  the  claim  within  limitation  period  specified  in  subsection  (b)  of \nthis section. \n \n Under  Ark.  Code  Ann.  §  11-9-705(a)(3)  (Repl.  2012),  Respondents  must \nprove by a preponderance of the evidence that dismissal should be granted.  The \nstandard  “preponderance  of  the  evidence” means  the  evidence  having  greater \nweight  or  convincing  force.   Barre  v.  Hoffman,  2009  Ark.  373,  326  S.W.3d  415; \nSmith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 (1947). \n No  Form  AR-C  has  been  filed  in  this  case.    That  is  the  means  for  filing a \n“formal  claim.”   See  Yearwood  v.  Wal-Mart  Stores,  Inc.,  2003  AR  Wrk.  Comp. \n\nBAKER – H010489 \n5 \n \nLEXIS  739,  Claim  No.  F201311 (Full  Commission  Opinion  filed  June  17,  2003).  \nSee also Sinclair v. Magnolia Hospital, 1998 AR Wrk. Comp. LEXIS 786, Claim No. \nE703502 (Full Commission Opinion filed December 22, 1998)(a claim is “typically” \nfiled via  a  Form  AR-C).    While  a  Form AR-1  was  filed,  that  does  not  suffice  to \ninstigate a claim.  Id. \n Per Ark. Code Ann. § 11-9-702(c) (Repl. 2012): \nA claim for additional compensation must specifically state that it is \na  claim  for  additional  compensation.    Documents  which  do  not \nspecifically  request  additional  benefits  shall  not  be  considered  a \nclaim for additional compensation. \n \n(Emphasis added)  See White Cty. Judge v. Menser, 2020 Ark. 140, 597 S.W.3d \n640. \n My  review  of  the  Commission’s  file  discloses  no  document  sufficient  to \nconstitute a filing of a claim for additional benefits under the standard cited above.  \nBecause  no  claim  has  been  filed,  it  follows  that  there  is  no  claim  subject  to \ndismissal  per Respondents’  motion.    The Motion  to  Dismiss  thus  must  be,  and \nhereby is, denied. \nCONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, the Motion to Dismiss is hereby denied. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":7710,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H010489 JOHN A. BAKER, EMPLOYEE CLAIMANT PERFORMANCE FOOD GROUP, INC., EMPLOYER RESPONDENT INDEMN. INS. CO. OF NO. AM., CARRIER RESPONDENT OPINION FILED FEBRUARY 10, 2023 Hearing before Administrative Law Judge O. Milton Fine II on February 8, 2023, in Little...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1","denied:2"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:10:16.264Z"},{"id":"alj-H103080-2023-02-09","awccNumber":"H103080","decisionDate":"2023-02-09","decisionYear":2023,"opinionType":"alj","claimantName":"Jimmy Foster","employerName":"Booneville Human Development Center","title":"FOSTER VS. BOONEVILLE HUMAN DEVELOPMENT CENTER AWCC# H103080 FEBRUARY 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/FOSTER_JIMMY_H103080_20230209.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FOSTER_JIMMY_H103080_20230209.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H103080 \n \nJIMMY FOSTER, Employee                                                                                      CLAIMANT \n \nBOONEVILLE HUMAN DEVELOPMENT CENTER, Employer                  RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION, Carrier                                         RESPONDENT \n \n \n OPINION FILED FEBRUARY 9, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian  \nCounty, Arkansas. \n \nClaimant represented by JARID M. KINDER, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by CHARLES H. MCLEMORE, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On December  6,  2022,  the  above  captioned  claim  came  on  for  hearing  at Fort  Smith, \nArkansas.  A pre-hearing conference was conducted on October 6, 2022 and a pre-hearing order was \nfiled on that same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#1  and  made  a  part  of  the  record  without  objection.  Emails  between  the  parties  and  the  Court  \nregarding the issues at the hearing were marked as Commission Exhibit #2 and made a part of the \nrecord without objection.  \n At the hearing, the parties agreed to the following stipulations: \n 1.    The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on July 31, 2020. \n3.  The compensation rates are $329.00 for temporary total disability and $247.00 for   \n  permanent partial disability. \n4.   Claimant sustained a compensable injury on or about July 31, 2020 when he contracted \n\nFoster-H103080 \n2 \n \n \n COVID-19 in the course of his employment.   \n At the hearing,  the parties agreed to litigate the following issues: \n1. Whether claimant is entitled to an impairment rating for an injury or disease of his \nheart as a result of his compensable injury. \n2. Whether claimant is entitled to an impairment rating for an injury which resulted in \nright ulnar nerve neuropathy. \n3.  Whether claimant is entitled to temporary total disability benefits from May 6, 2022 \nuntil September 26, 2022. \n4.  Attorney’s fee. \nAll other issues are reserved by the parties. \nThe claimant’s contentions as per his Amended Prehearing Questionnaire were: \n“1. The claimant, Jimmy Foster, sustained compensable injuries following a COVID-19 \ninjury  on or  about August  6, 2020, while  working  for  Booneville Human Development  Center  in \nBooneville,  Arkansas.  Said  injuries,  include,  but  are  not  limited  to:  a  respiratory  disorder,  sacral \nwound, paroxysmal atrial fibrillation, dyspnea on exertion, essential hypertension, hypertensive heart \ndisease, left ventricular diastolic dysfunction, pulmonary hypertension, left ventricular dilation, trivial \nnonrheumatic  mitral  insufficiency  trivial  nonrheumatic  tricuspid  insufficiency, a  subarachnoid \nhemorrhage, and hemiparesis. \n2. Sara  L.  Roberson  has  taken  the  claimant  off  work  indefinitely  due  to  his  severe \nCOVID-pneumonia and subsequent deterioration of health.   \n3. The  claimant  was  not  found  to  be  at  MMI  until  September  26,  2022  by  Dr.  Terry \nClark. The claimant remained in his healing period for both scheduled and unscheduled injuries, had \nnot been returned to work, and thus contends he is owed temporary total disability benefits from May \n\nFoster-H103080 \n3 \n \n \n17,  2022  through  September  26,  2022. [Note:  claimant  amended  the  starting  date  for  his  claim  for \nTTD during the hearing to May 6, 2022.]  \n4.         The Claimant also contends that he is owed an impairment rating for his heart condition. \nUtilizing Table 12 (6/195) of the Guides to the Evaluation of Permanent Impairment, Fourth Edition, \nthe claimant contends he has a Class 3 Cardiac Arrhythmia, entitling him to a 49% impairment to the \nwhole person.  \n5.        The claimant also contends that he is owed an impairment rating for his right ulnar \nnerve  neuropathy.    Utilizing  Table  14  (4/148)  of  the  Guides  to  the  Evaluation  of  Permanent \nImpairment, Fourth Edition, the Claimant contends he is owed a 9% impairment to the whole person.   \n6. Due to the controversion of entitled benefits, the respondents are obligated to pay one \nhalf of the claimant’s attorney’s fees. \n The respondents contend that “the claimant reported on August 5, 2020 that he tested positive \nfor  COVID,  with  his  last  day  at  work  being  July  31,  2020.  Respondent  did  accept  this  claim  as \ncompensable pursuant to Ark. Code Ann. §11-9-601 (effective from March 11, 2020 and until May 1, \n2023) and respondent has provided benefits to or on behalf of the claimant for this claim. Respondent \nhas provided reasonable and necessary medical treatment for the claimant, including treatment with \nDr. Terry Clark, Dr. Delilah Easom for wound care, and Dr. Julio Schwarz, a cardiac specialist. The \nclaimant tested unreliably in the Sedentary classification of work at a Functional Capacity Evaluation \non  April  26, 2022, with  13  of  53  consistency  measures.  The  claimant  was  paid  his  salary  by  his \nemployer until January 8, 2021, at which point the claimant was paid temporary total disability benefits \nby the respondent from January 9, 2021 until May 6, 2022 when the claimant was released at maximum \nmedical  improvement  by  his  treating  physician, Dr.  Terry  Clark.  The  claimant  was  assigned a \npermanent  anatomical  impairment  of  10%  to  the  whole  person  which  has  been  accepted  by \n\nFoster-H103080 \n4 \n \n \nrespondent and permanent partial disability benefits are being paid to the claimant for this impairment \nrating. The claimant would not return to work and would not complete his mandatory background \nchecks for his job. The claimant’s employment ended November 30, 2021.”   \n From  a  review  of  the  record  as  a  whole,  to  include  medical  reports,  documents,  and  other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of the \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted on October \n6, 2022 and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.   Claimant has failed to prove by a preponderance of the evidence that his heart disease was \nthe result of his compensable illness from COVID-19.  \n 3.   Claimant has failed to prove by a preponderance of the evidence that his right ulnar nerve \nneuropathy was the result of his compensable illness from COVID-19.  \n 4.     Claimant  has met  his  burden  of  proving  that he is  entitled  to  temporary  total  disability \nbenefits from May 7, 2022 through September 26, 2022.  \n 5.    Respondent has paid permanent partial disability benefits from May 7, 2022 based on the \n10% impairment rating assessed by Dr. Clark.  Respondent is entitled to credit for the payments it has \nmade toward that rating.  \n 6.     Respondent has controverted claimant’s entitlement to the unpaid temporary total \ndisability benefits between May 7, 2022 through September 26, 2022.   \n \n \n\nFoster-H103080 \n5 \n \n \nFACTUAL BACKGROUND \n Prior to taking testimony, claimant objected to a portion of respondent’s surveillance exhibit \n(R.X. #3), which was a printout of a search on Arkansas Court Connect for information on Jimmy \nFoster.  The objection was based on the record not sufficiently identifying claimant as the “Jimmy \nFoster” named in the document, as well as relevance to the issues before me.   I was unable to rule \non it before hearing the testimony that related to that portion of respondent’s exhibit.  Having heard \nthe witness that prepared the document testify on this issue, I ruled that pages 18-21 of respondent’s \nexhibit #3 would not be received as evidence.  These were proffered by respondent and are included \nin the record, but were not considered as evidence in this case.   \nHEARING TESTIMONY \n Claimant  contracted  COVID-19 on  or  about July 31, 2020.  Claimant  was  hospitalized  on \nAugust 8, 2020, and was either in the hospital or a nursing home for several weeks thereafter. As a \nresult of being in bed for an extended period, claimant developed bed sores and was treated for that \nafter his discharge from the nursing home.  \n Regarding the two conditions that claimant raised as an issue at this hearing, claimant stated \nthat he had great difficulty with his right upper extremity, including loss of strength as well as his range \nof  motion.  Regarding  his  heart  condition,  claimant  testified  that  he  had  never  had  heart  problems \nbefore he developed COVID-19 but had been told that he had an enlarged heart, a-fibrillation, and a \nvalve that wasn’t expanding. Claimant was not taking any medications for his heart at the time of the \nhearing other than an aspirin a day.  \n After  claimant  rested,  respondent  called  Julie  Street,  the  HR  director  at  Booneville  Human \nDevelopment Center, to discuss the circumstances of claimant being terminated as an employee there \nin November, 2021. Respondent also called two private investigators. Tonya Johnson testified about \n\nFoster-H103080 \n6 \n \n \nconducting  both  visual  surveillance  and seeing  claimant  in  several  videos  posted  on  the  Apostolic \nLighthouse Church Facebook page. Ms. Johnson downloaded several of the videos. Travis Williams \ntestified as to his visual surveillance of claimant.  \nREVIEW OF THE EXHIBITS \n \n Claimant submitted a series of medical records outlining his course of treatment following his \nCOVID-19 diagnosis, including records from his hospitalization and the care of his stage IV pressure \nulcer. Those conditions are not of issue in this case and those records will not be further considered.  \n Regarding his heart condition, Dr. Sara Roberson was claimant’s primary care physician.  On \nNovember   9,   2020,   her APRN,   Sherilyn   Bennett, discussed   with   claimant   undergoing   an \nechocardiogram. On December 4, 2020, Dr. Roberson noted: “Awaiting cardiology referral and echo.” \nA  year  later,  Dr.  Roberson’s  records  for  December  30,  2021, revealed that  claimant  had  an \nechocardiogram  in  June,  2021,  but  there  was nothing  from  that  test  entered  into  evidence.    On \nFebruary 15, 2022, the first record introduced from Mercy Clinic Cardiology, he was seen by Gayla \nJohnson FNP, who ordered a 72- hour Holter monitor to assess claimant’s cardiac rate and rhythm. \nNurse Johnson recorded “Patient is stable from the cardiology viewpoint in relation to problems. In \naddition, there is no dyspnea.” Claimant returned to Mercy Clinic Cardiology on March 28, 2022, to \nsee Dr. Julio Schwarz and/or April 1, 2022 (the records are unclear if there were two visits within five \ndays).  There  are  references  to  the  results  of  the  echocardiogram  and  the  Holter  monitor  study. \nClaimant’s list of cardiovascular disease problems include:  \n 1.  Paroxysmal atrial fibrillation. \n 2.  Dyspnea on exertion. Injection factor 60%. \n 3   Essential hypertension. \n 4.  Hypertension heart disease. \n 5.  Left ventricular diastolic dysfunction. \n 6.  Pulmonary hypertension. \n 7.  Left atrial dilatation. \n 8.  Trivial non-hematic mitral insufficiency. \n\nFoster-H103080 \n7 \n \n \n 9.  Trivial non-hematic tricuspid insufficiency. \n 10.  Family history of heart disease. \n \n Claimant was treated for problems with his right upper extremity injury by Dr. Keith Bolyard \non  January 15, 2021. Claimant’s complaints were “a snapping of the right scapula and pain and \nweakness of the shoulder.” Claimant described similar pain but not as severe with his left shoulder. \nUpon physical examination, Dr. Bolyard noted “he does have a palpable snap at the inferior angle of \nthe  scapula  with  certain  range  of motions.” He reviewed the  x-rays  and  his impression  was  that \nclaimant had a “right glenohumeral joint arthritis with stiffness” and a “snapping scapula syndrome \nright.” Dr. Bolyard believed that the scapula was “probably more consistent with a dyskinesis.” \nClaimant was given an injection of lidocaine, Marcaine and betamethasone in the right glenohumeral \njoint. Dr. Bolyard did not believe that the snapping scapula would require surgery but was probably \nmore related to a muscle imbalance.  He did not schedule claimant for a return visit. \n On April 26, 2022, claimant underwent a functional capacity evaluation (FCE) performed by \nthe Functional Testing Centers, Inc. The evaluator noted a self-limiting behavior and a sub-maximal \neffort, finding the results of the evaluation indicated that an unreliable effort was put forth. Claimant \nhad 13 of 53 consistency measures within expected limits. Despite this, claimant was assessed with a \nten percent (10%) whole person impairment based on his respiratory impairments.  \n The results of the FCE were provided to Dr. Terry Clark. On September 26, 2022, Dr. Clark \nopined  that  claimant  had reached  maximum  medical  improvement (MMI) and  agreed  with  the \nimpairment rating of ten percent to the whole person as set forth in the FCE report. \n Respondent’s medical exhibits largely duplicated the relevant records from claimant’s exhibits \nand those records that were not duplicative are not pertinent for my decision in this matter. \n Respondent’s non-medical exhibits included letters sent from respondent Booneville Human \nDevelopment  Center  to  claimant  regarding  his  employment,  including  the  November  30, 2021, \n\nFoster-H103080 \n8 \n \n \ncorrespondence that terminated his job with respondent. These records conclude with the May 17, \n2022  letter  from  Rhonda  Murphy,  the  assistant  claims  determination  manager  with  the  Arkansas \nInsurance Department, Public Employees Claims Division. Ms. Murphy advised claimant that a report \nfrom Rick Byrd at Functional Testing Center indicated that claimant had reached a maximum medical \nbenefit as of April 26, 2022 and therefore claimant’s permanent partial disability benefits would begin \ncovering the dates May 7, 2022 through May 20, 2022 and continue for a total of 45 weeks of benefits. \n Respondent’s third exhibits were reports from the private investigators that surveilled claimant \nand researched social media sites for information about the claimant’s condition.  A thumb  drive \ncontaining  videos  from  the  surveillance and social media sites was included in Respondent’s #3.  \nBefore  writing  this  opinion,  I  requested respondent  to  identify  five  of  the  115  videos downloaded \nfrom the Facebook page of the church claimant attends as representative of the whole.  Respondent \ndesignated those from August 15, 2021, September 14, 2021, September 26, 2021, October 24, 2021, \nand December 14, 2021 in response to my request.  \n \nADJUDICATION \n \nClaimant has three distinct claims.  He maintains he has a permanent injury in the form of a \nheart  condition.    He  also  asserts  he  has  a  permanent  injury  to  his  right  upper  extremity.    Finally, \nclaimant seeks temporary total disability benefits (TTD) for a period of time between May 6, 2022 and \nSeptember 26, 2022.  These will be addressed separately below. \nIt  is  conceded  that  claimant  had  a  compensable  injury  for  contracting  COVID-19  while \nemployed  by  respondent,  and  it  appears  that  his  medical  benefits  for  the  severe  respiratory  illness \nclaimant  developed,  as  well  as  for  the  bed  sores  that  occurred  while  being  treated  for  COVID-19, \nwere paid by respondent.  Although claimant reserved a claim for any TTD that was due outside of \n\nFoster-H103080 \n9 \n \n \nthe stated period above, he testified that he received TTD for much of the time he was unable to work \nbefore  he  was released from doctor’s care at maximum medical improvement for the respiratory \nillness.    While  admitting  the  respiratory  illness  and  subsequent  bed  sores  were  compensable, \nrespondent has controverted claimant’s request for TTD after May 6, 2022, and has denied that the \nheart condition and the neuropathy in claimant’s right upper extremity are compensable.   \nThere are also several statutory provisions that seem applicable to claimant’s heart condition.   \nTo  receive  additional  TTD  benefits  for  the  admittedly  compensable  COVID-19  illness, \nclaimant must prove by a preponderance of the evidence that he remains within his healing period \nand that he suffers a total incapacity to earn wages. Arkansas State Highway & Transportation Department \nv. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981). \nA.  The heart condition. \n A couple of statutes are applicable to this portion of claimant’s request for disability for his \nheart condition.  Arkansas Code Annotated §11-9-102(5)(A)(ii) and (iv) provides, in pertinent part, \nthat a compensable injury is: \n(ii) An injury causing internal or external physical harm to the body and arising out of and \nin the course of employment if it is not caused by a specific incident or is not identifiable \nby time and place of occurrence, if the injury is: \n \n(iv) Heart, cardiovascular injury, accident, or disease as set out in § 11-9-114. \n \nArkansas Code Annotated §11-9-114 states: \n(a)  A  cardiovascular,  coronary,  pulmonary,  respiratory,  or  cerebrovascular  accident  or \nmyocardial  infarction  causing  injury,  illness,  or  death  is  a  compensable  injury  only  if, in \nrelation to other factors contributing to the physical harm, an accident is the major cause \nof the physical harm. \n \n(b)(1) An injury or disease included in subsection (a) of this section shall not be deemed \nto be a compensable injury unless it is shown that the exertion of the work necessary to \nprecipitate  the  disability  or  death  was  extraordinary  and  unusual  in  comparison  to  the \nemployee's usual work in the course of the employee's regular employment or, alternately, \n\nFoster-H103080 \n10 \n \n \nthat  some  unusual  and  unpredicted  incident  occurred  which  is  found  to  have  been  the \nmajor cause of the physical harm. \n \nClaimant has a heart condition that was established by objective medical findings and seeks \na permanent disability award for it.  Claimant seems to rely on the sequence of events as proof that \nthe heart condition was caused by COVID-19.  However, the records discussed above are devoid of \nattribution of the heart condition to COVID-19.  A claimant will not receive an award for permanent \nbenefits unless the injury was the major cause of the disability or impairment. Ark. Code Ann. § 11-9-\n102(4)(F)(ii)(a).  \"Major  cause\"  means  more  than  50  percent  of  the  cause,  which  the  claimant  must \nestablish  by  a  preponderance  of  the  evidence.  Ark.  Code  Ann.  §  11-9-102(14)(A).   As  none  of  his \ntreating physicians determined that the compensable injury—COVID-19—was a major cause of the \nheart ailments, claimant failed to meet his burden of proof that he sustained a permanent injury to his \nheart as a result of contracting COVID-19 through his employment.   \nB.  Right upper extremity neuropathy.  \nIn order for claimant to meet his burden of proof to receive benefits for the neuropathy in his \nright upper extremity,  he must show that: (1) an injury occurred that arose out of and in the course \nof his employment; (2) the injury caused internal or external harm to the body that required medical \nservices or resulted in disability or death; (3) the injury is established by medical evidence supported \nby objective findings, which are those findings which cannot come under the voluntary control of the \npatient; and (4) the injury was caused by a specific incident and is identifiable by time and place of \noccurrence.  If  a  claimant  fails  to  establish  by  a  preponderance  of  the  evidence  any  of  the  above \nelements,  compensation  must  be  denied. Mikel  v.  Engineered  Specialty  Plastics,  56  Ark.  App.  126,  938 \nS.W.2d 876 (1997).    \n\nFoster-H103080 \n11 \n \n \nI  believe that  a  respiratory  virus  did  not  cause  claimant  to  have  pain  in  his  right  upper \nextremity.   Claimant believes that it happened when he was being pulled around in his bed while being \ntreated  in  the  hospital  or  nursing  home  for  COVID-19.   If  he  could  show  that  was  indeed  what \nhappened, he could receive benefits for injuries sustained while being treated for a compensable injury, \nsee Air Compressor Equipment v. Sword, 69 Ark. App. 162, 11 S.W.3d 1 (Ark. App. 2000) and Eagle Safe \nCorp. v. Egan, 39 Ark. App. 79, 842 S.W.2d 438 (1992).  However, the only records I have of treatment \nfor  the  right  upper  extremity  was  that  of  Dr.  Bolyard,  who  termed  what  he  was  seeing  as a “right \nglenohumeral joint arthritis with stiffness and a snapping scapula syndrome right.”  Perhaps claimant \ndid not relate to Dr. Bolyard what he believed to be the origin of the pain in his right upper extremity \nand thus give the physician a reason to express an opinion as to causation.  Without such, though, \nclaimant failed to meet his burden of proof on this issue.   \nC. Claimant’s entitlement to TTD benefits from May 7, 2022, until September 26, 2022. \n In  order  to  be  entitled  to  temporary  total  disability  benefits  for  an unscheduled  injury,  the \nclaimant must prove by a preponderance of the evidence that he remains within his healing period \nand that he suffers a total incapacity to earn wages. Arkansas State Highway & Transportation Department \nv. Breshears, 272 Ark. 244, 613 S.W. 2d 392 (1981).  While the videos of claimant from the last half of \n2021 preaching for over 30 minutes at a time without losing his breath coupled with his reported lack \nof effort during the FCE might indicate he was malingering, I am not satisfied that this alone is enough \nto  deny  his  claim  for  TTD  before  Dr.  Clark  released  him.    It  appears  Debbie  Blaylock,  the  case \nmanager, had predetermined when claimant would be declared at MMI: “MMI is expected to be \nachieved after completion of cardiology testing and follow-up and the FCE.” (CL. X 90). In the same \ndocument, though, Ms. Blaylock said “the cardiology and FCE results will be provided to Dr. \nRoberson when available for determination of MMI and work status.” Rather than wait for Dr. \n\nFoster-H103080 \n12 \n \n \nRoberson to review those results and make the MMI determination, Ms. Blaylock wrote to claimant \non May 17, 2022, advising him that Rick Byrd had indicated that claimant had reached MMI, so she \nwas ending the TTD payments and starting the payments on the permanent partial disability rating. \nThat was premature on her part.  \n On June 17, 2022, Dr. Roberson saw claimant again, and reviewed the FCE. Unlike what Ms. \nBlaylock anticipated, Dr. Roberson did not find claimant was at MMI for his COVID-19 condition.  \nIn  a  letter  composed  following  that  visit,  Dr.  Roberson  included  the  respiratory  issues  among  the \nhealth factors that she felt would keep claimant from working. It was not until claimant saw Dr. Clark \non September 26, 2022 that a physician said “MMI had been reached as of today’s date.”\n1\n  The records \nfrom  this  visit  are  clear  that  Dr.  Clark  was  referring  only to claimant’s respiratory  failure, the \nsubarachnoid hemorrhage (an issue that was reserved by claimant and not a part of this hearing) and \nthe pressure ulcer (CL. X 138) in declaring that “Jimmy’s recommended work status is regular duty.  \nThe effective date for this work status is 9/26/2022.”  \n Given  Mr.  Byrd  at  Functional  Testing  Center  is  not  a  medical  doctor,  and considering the \nopinions of both Dr. Roberson and Dr. Clark, both of whom saw claimant after Mr. Byrd conducted \nthe FCE, claimant has proven by a preponderance of the evidence that the date he was released at \nMMI for the COVID-19 injury was September 26, 2022. He is entitled to TTD benefits from May 7, \n2022 until September 26, 2022.  \n At the hearing, respondent requested that if I find claimant is entitled to TTD benefits that it \nbe given credit for the permanent partial disability payments it made from May 7, 2022. As claimant \nshould have received TTD benefits from May 7, 2022 to September 26, 2022, respondent is credited \n \n1\n In its contentions, respondent maintained that Dr. Clark released claimant at MMI on May 6, 2022.  Dr. Clark did \nnot see claimant on April 26, 2022; that was the date of the FCE.  \n\nFoster-H103080 \n13 \n \n \nwith  the  payments  toward  the 10%  whole  person  impairment  rating that  has  already  been  paid  to \nclaimant. \nORDER \n \nClaimant has failed to meet his burden of proving by a preponderance of the evidence that he \nsustained a compensable injury to his heart or his right upper extremity as a result of his compensable \ninjury from contracting COVID-19 in July, 2020. \nClaimant has met his burden of proving by a preponderance of the evidence that he is entitled \nto temporary disability benefits from May 7, 2022, through September 26, 2022. \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nRespondents are entitled to credit for all payments it has made toward the 10% permanent \nimpairment rating beginning May 7, 2022.  \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nAll issues not addressed herein are expressly reserved under the Act. \nRespondent is responsible for paying the court reporter her charges for preparation of the  \ntranscript in the amount of $1,671.45. \nIT IS SO ORDERED \n                                                                                            \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":26309,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H103080 JIMMY FOSTER, Employee CLAIMANT BOONEVILLE HUMAN DEVELOPMENT CENTER, Employer RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, Carrier RESPONDENT OPINION FILED FEBRUARY 9, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebasti...","outcome":"granted","outcomeKeywords":["granted:5","denied:1"],"injuryKeywords":["shoulder"],"fetchedAt":"2026-05-19T23:10:14.198Z"},{"id":"alj-G508595-2023-02-08","awccNumber":"G508595","decisionDate":"2023-02-08","decisionYear":2023,"opinionType":"alj","claimantName":"Tina Webb","employerName":"Wal-Mart, Inc","title":"WEBB VS. WAL-MART, INC. AWCC# G508595 FEBRUARY 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Webb_Tina_G508595_20230208.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Webb_Tina_G508595_20230208.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. G508595 \n \n \nTINA WEBB, EMPLOYEE CLAIMANT \n \nWAL-MART, INC., \n SELF-INSURED EMPLOYER RESPONDENT NO. 1 \n \nWAL-MART CLAIMS SVCS., INC., \n THIRD-PARTY ADMINISTRATOR RESPONDENT NO. 1 \n \nDEATH & PERMANENT TOTAL \n DISABILITY TRUST FUND RESPONDENT NO. 2 \n \n \nOPINION FILED FEBRUARY 8, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on January 20, 2023, in \nJonesboro, Craighead County, Arkansas \n \nClaimant  represented  by  Mr.  Phillip  J.  Wells,  Attorney  at  Law,  Jonesboro, \nArkansas. \n \nRespondents  No.  1  represented  by  Mr.  R.  Scott  Zuerker,  Attorney  at  Law,  Fort \nSmith, Arkansas. \n \nRespondent  No.  2  represented  by  Ms.  Christy  L.  King,  Attorney  at  Law,  Little \nRock, Arkansas, excused from participation. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  a  Motion  to  Dismiss  by \nRespondents.    No  testimony  was  taken.    The  evidentiary  record  consists  of \nClaimant’s Exhibit 1, a compilation of her medical records, consisting of one index \npage  and 36  numbered  pages  thereafter;  Claimant’s  Exhibit  2,  her  response  to \nthe Motion to Dismiss, consisting of two pages; and Respondents No. 1 Exhibit 1, \ntheir  Motion  to  Dismiss  and  exhibits  thereto,  consisting  of  four pages.  Without \n\nWEBB – G508595 \n \n2 \nobjection,  the  Commission’s  file  on  this  claim  has  been  incorporated  herein  by \nreference in its entirety. \n The  record  reflects  the  following  procedural  history:    On  March  16,  2017, \nClaimant (through counsel) filed a Form AR-C with the Commission.  Therein, she \ncontended  that  she  injured  her  head,  lower  back,  and  left  leg  at  work  on \nNovember  9,  2015.    Respondents  accepted  the  leg  injury  as  compensable.  \nHowever, they controverted the back injury in its entirety.  Following a hearing on \nAugust  4,  2017,  in  Jonesboro,  Judge  Blood  issued  an  opinion  on  October  10, \n2017, that contained the following findings of fact and conclusions of law: \n1. The   Arkansas   Workers’   Compensation   Commission   has \njurisdiction of this claim. \n2. The employment relationship existed at all times pertinent, to \ninclude  November  9,  2015,  during  which  time  the  claimant \nearned  an  average  weekly  wage  of  $458.92,  generating \nweekly  compensation  benefit  rates  of  $306.00/$230.00,  for \ntemporary total/permanent partial disability. \n3. On  November  9,  2015,  the  claimant  sustained  an  injury  to \nher  lumbar  spine  arising  out  of  and  in  the  course  of  her \nemployment with respondent, which caused internal harm to \nthe   body   requiring   medical   services   and   resulting   in \ndisability,   with   medical   evidence   supported   by   objective \nfindings establishing the injury, and the injury was caused by \n\nWEBB – G508595 \n \n3 \na  specific  incident  and  identifiable  by  time  and  place  of \noccurrence. \n4. The  November  9,  2015,  compensable  lumbar  injury  of  the \nclaimant  rendered  her  temporarily  totally  disabled  for  the \nperiod  commencing  October  18,  2016,  and  continuing  to  a \ndate to be determined. \n5. Respondent\n1\n  shall  pay  all  reasonable  hospital  and  medical \nexpenses  arising  out  of  the  claimant’s  November  9,  2015, \ncompensable  lumbar  injury,  to  include  that  provided  by  and \nat the directions of Dr. Robert E. Abraham. \n6. Respondent   has   controverted   the   compensability   of   the \nclaimant’s November 9, 2015, compensable lumbar injury in \nits entirety. \n Respondents  No.  1  appealed  this  decision.    On  April  24,  2018,  the  Full \nCommission reversed the above decision, finding that Claimant did not prove by a \npreponderance  of  the evidence that  she  sustained  a  compensable lumbar  injury.  \nWebb  v.  Wal-Mart  Assocs.,  Inc.,  2018  AR  Wrk.  Comp.  LEXIS  216.    Claimant,  in \nturn,  appealed  this  decision.    The  Arkansas  Court  of  Appeals  affirmed  the  Full \nCommission on December 12, 2018.  Webb v. Wal-Mart Assocs., 2018 Ark. App. \n627, 567 S.W.3d 86. \n \n \n1\nUnless  otherwise  indicated,  the  use  of “Respondent” herein  refers  to \nRespondents No. 1. \n\nWEBB – G508595 \n \n4 \n On April 2, 2019, Claimant (again through counsel) filed another Form AR-\nC.  In this instance, she  requested the full range of initial and additional benefits.  \nHowever, in a letter accompanying this filing, her counsel wrote in pertinent part: \nMs. Webb sustained an injury to her lower extremity when she fell \nduring   the   course   of   her   employment.    The   claim   has   been \naccepted  as  compensable  and  benefits  are  currently  being  paid.  \nAn  issue  has  arisen  as  to  the  Claimant’s  entitlement  to  temporary \npartial disability benefits. \n \nNo hearing request was made. \n The  record  reflects  that  no  further  action  took  place  on  the  claim  until \nAugust 31, 2022, when Respondents No. 1 filed the instant Motion to Dismiss with \nthe Commission.  Therein, they contended that it should be dismissed pursuant to \nArk. Code Ann. § 11-9-702(a)(4) (Repl. 2012)\n2\n because more than six months had \ntranspired since the filing of the claim without Claimant making a hearing request, \nand  AWCC  R.  099.13  because  of  a  lack  of  prosecution.    My  office  wrote \nClaimant’s  counsel  on September  8,  2022,  asking  for  a  response  to  the  motion \nwithin 20 days.  Counsel did so that same day.  The responsive pleading reads: \n1. The  Claimant  sustained  a  compensable  injury  to  her  leg.  \nThe   Claimant   has   received   the   payment   of   indemnity \nbenefits and medical payments for continued treatment. \n \n2. The   Claimant   has   not   requested   a   hearing   since   the \nRespondent has accepted the claim as compensable and is \ncurrently paying for authorized medical treatment. \n \n3. The  Claimant  will  continue  into  the  future  receiving  medical \ntreatment that should be paid for by the Respondent. \n \n \n2\nBecause this was an accepted claim, the applicable provision is Ark. Code \nAnn. § 11-9-702(d) (Repl. 2012). \n\nWEBB – G508595 \n \n5 \n \n4. The Claimant requests that the matter be kept open and that \nthere has not been a controverted issue requiring a hearing \nrequest. \n \n5. The Claimant requests that the Motion to Dismiss be denied \nand that the matter continue in an active status. \n \n I  interpreted  the  above  communication  as  a  request  for  a  hearing  on the \nClaimant’s    entitlement    to    additional    benefits,    and    issued    prehearing \nquestionnaires  to  the  parties  on  September  15,  2022.    I  notified  them  that \nbecause  of  this  action,  I  was  holding  the  Motion  to  Dismiss  in  abeyance.  The \nparties filed timely questionnaire responses.  In Claimant’s response, her counsel \nlisted the issues for determination as follows: \nWhether  the  claim  should  be  dismissed  without  prejudice.    The \nClaimant   contends   that   since   the   Respondent   has   paid   all \nreasonable  and  necessary  medical  expenses  there  has  not  been \nthe  need  for  a  hearing.    This  is  the  reason  the  Claimant  has  not \nrequested a hearing within the past six months. \n \nWhile  a  prehearing  telephone  conference  was  set  for  November  7,  2022,  this \nwas postponed on November 4, 2022, due to a scheduling conflict.  In light of the \nabove response, which makes it clear that no issues were ripe for a full hearing, \na  hearing  was  instead  scheduled  on  the  Motion  to  Dismiss.  The  hearing  was \nscheduled   for   January   20,   2023,   at   2:00   p.m.   at   the   Craighead   County \nCourthouse  in  Jonesboro.    The  parties  were  notified  of  this  by  letter  sent  via \ncertified mail on November 22, 2022.  On January 12, 2023, I notified the parties \nthat, by agreement, the hearing was rescheduled for 12:00 p.m. that day.  At the \nhearing, Claimant appeared in person, as did the respective counsels.  Again, no \n\nWEBB – G508595 \n \n6 \ntestimony   was   taken,   but   the   parties   argued   their   respective   positions.  \nRespondents asked for dismissal of the claim without prejudice under Ark. Code \nAnn. § 11-9-702 (Repl. 2012) and AWCC R. 099.13. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this claim. \n2. The following stipulations are reasonable and are hereby accepted: \na. The  previous  decisions  in  this  matter  by  Administrative  Law \nJudge Andrew Blood, the Full Commission, and the Arkansas \nCourt  of  Appeals  are  binding  on  this  proceeding  under  the \nLaw of the Case Doctrine. \nb. Claimant   sustained   a   compensable   injury   to   her   lower \nextremity  on  November  9,  2015;  and  Respondents  No.  1 \ncontinue to provide authorized medical care for that injury. \n3. The  parties  were  provided  reasonable  notice  of  the  motion  to \ndismiss and of the hearing thereon under AWCC R. 099.13. \n3. The Commission is authorized to dismiss claims lacking a justiciable \nissue pursuant to AWCC R. 099.13. \n\nWEBB – G508595 \n \n7 \n4. This  claim  should  be,  and  hereby  is,  dismissed without  prejudice \npursuant  to  AWCC  R.  099.13  because  of  the  lack  of  a  justiciable \nissue. \n5. Because of  the above  finding,  Ark.  Code  Ann. § 11-9-702(d)  (Repl. \n2012) will not be addressed. \nIII.  DISCUSSION \n Arkansas Code Annotated § 11-9-702(d) (Repl. 2012) provides as follows: \n \nIf  within  six  (6)  months  after  the  filing  of  a  claim  for  additional \ncompensation,  no  bona  fide  request  for  a  hearing  has  been  made \nwith  respect  to  the  claim,  the  claim  may,  upon  motion  and  after \nhearing,  if  necessary,  be  dismissed  without  prejudice  to  the  refiling \nof the claim within the limitation period specified in subsection (b) of \nthis section. \n \nIn addition, AWCC R. 099.13 provides in relevant part: \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods,  55  Ark.  App.  83,  85,  929  S.W.2d  730 \n(1996). \n The  Arkansas  Court  of  Appeals  in Johnson  held  that  a  claim  could  be \ndismissed  for  lack  of  prosecution  based  on  the  fact  that  there  is  no  justiciable \nissue.    The  authority  for  doing  so  comes  under  Rule  13,  which  the  Commission \npromulgated  under  Ark.  Code  Ann.  §  11-9-205(a)(1)(A)  (Repl.  2012).    This \nprovision authorizes  it  “[t]o  make  such  rules  and  regulations  as  may  be  found \n\nWEBB – G508595 \n \n8 \nnecessary[.]”  See Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W.2d \n562  (1969); Johnson, supra.   Contra  Dillard v.  Benton  Cty.  Sheriff’s  Off.,  87 Ark. \nApp. 379, 192 S.W.3d 287 (2004)(“Rule 13 . . . allows a dismissal . . . pursuant to \nArk.  Code  Ann.  §  11-9-702(b)(4),  the  portion  of  the  statute  relating  to  additional \nbenefits”).    Certainly,  such  a  claim  could  be  re-filed  if  a  justiciable  issue  arises, \nprovided that all other prerequisites for a cognizable claim are met. \n At the hearing, Claimant conceded through counsel there are no justiciable \nissues  at  present  regarding  this  claim.    Under Johnson,  supra,  this  claim  should \nthus  be  dismissed  under  Rule  13.    Because  of  this  finding,  it  is  unnecessary  to \naddress the application of § 11-9-702(d). \n That, however, leaves the question of whether the dismissal should be with \nor without prejudice.  The Commission possesses the authority to dismiss claims \nwith  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co.,  23  Ark. App.  137,  744 \nS.W.2d  402  (1988).    This  includes  claims  dismissed  under  Rule  13.   Johnson, \nsupra.  In Abo v. Kawneer Co., 2005 AR Wrk. Comp. LEXIS 5 10, the Commission \nwrote:    “In  numerous  past  decisions,  this  Commission  and  the  Appellate  Courts \nhave   expressed   a   preference   for   dismissals   without   prejudice.”      (citing \nProfessional  Adjustment  Bureau  v.  Strong,  75  Ark.  249, 629  S.W.2d  284  (1982); \nHutchinson  v.  North  Arkansas  Foundry,  Claim  No.  D902143  (Full  Commission \nOpinion  filed  October  23,  1991)).    In  light  of  this  preference,  along  with  facts  of \nthis case and Respondents’ agreement that dismissal should be without prejudice, \nthe dismissal of this claim is hereby without prejudice. \n\nWEBB – G508595 \n \n9 \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge","textLength":13183,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. G508595 TINA WEBB, EMPLOYEE CLAIMANT WAL-MART, INC., SELF-INSURED EMPLOYER RESPONDENT NO. 1 WAL-MART CLAIMS SVCS., INC., THIRD-PARTY ADMINISTRATOR RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED FEBRUARY 8, 2023 H...","outcome":"dismissed","outcomeKeywords":["dismissed:7"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T23:10:10.002Z"},{"id":"alj-H103334-2023-02-08","awccNumber":"H103334","decisionDate":"2023-02-08","decisionYear":2023,"opinionType":"alj","claimantName":"Jonathan Woodall","employerName":"Hill & Cox Corp","title":"WOODALL VS. HILL & COX CORP. AWCC# H103334 FEBRUARY 8, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WOODALL_JONATHAN_H103344_20230208.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WOODALL_JONATHAN_H103344_20230208.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H103334 \n \nJONATHAN WOODALL,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nHILL & COX CORP., \nEMPLOYER                                                                                                         RESPONDENT \n \nVALLEY FORGE INS. CO./ \nCNA INS. CO., \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED FEBRUARY 8, 2023 \n \nHearing conducted before the Arkansas Workers’ Compensation Commission (the Commission), \nAdministrative Law Judge (ALJ) Mike Pickens, in Little Rock, Pulaski County, Arkansas. \n \nThe claimant, Mr. Jonathan Woodall, pro se, of Bismarck, Hot Spring County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Karen H. McKinney, Barber Law Firm, \nLittle Rock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n     A hearing  was conducted on Wednesday, January 18, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2022 \nLexis Replacement) and Commission Rule 099.13 (2022 Lexis Replacement). \n     The  respondents  filed  a  motion  to  dismiss  with  the  Commission  on  December  12,  2022, \nrequesting  this  claim  be  dismissed  for  lack  of  prosecution.  Pursuant  to  the  applicable  law,  the \nclaimant was mailed a copy of the respondents’ motion to dismiss (MTD) and the hearing notice \nvia  the  United  States  Postal  Service  (USPS),  First  Class  Mail,  Return  Receipt  Requested. \n(Commission  Exhibit  1).  Thereafter,  the  claimant  failed  and/or  refused  to  either  respond  to  the \nrespondents’ motion in any way, or to appear at the subject hearing. \n\nJonathan Woodall, AWCC No. H103334 \n \n2 \n \n     The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n     Consistent  with Ark.  Code  Ann.§  11-9-702(a)(4),  as  well  as  our  court  of  appeals’  ruling  in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ MTD. Rather than recite \na detailed analysis of the record, suffice it to say the preponderance of the evidence introduced at \nthe hearing and contained in the record conclusively reveals the claimant has failed and/or refused \nto prosecute his claim at this time. \n     Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having  been  mailed due  and  legal  notice  of  both  the  respondents’  MTD  and  the \nhearing notice, the claimant failed and/or refused to either respond to the MTD or to appear \nat the hearing. Therefore, the claimant has waived his right to a hearing on the respondents’ \nMTD without prejudice. \n \n3. The claimant has to date failed and/or refused to request a hearing within the last six (6) \nmonths, and he has failed and/or refused to take any action(s) to prosecute his claim. \n \n4. Therefore,  the respondents’  MTD  without  prejudice  filed  on  December  12,  2022, is \nGRANTED; and this claim hereby is dismissed without prejudice to its refiling pursuant \nto  the  deadlines  prescribed  by Ark.  Code  Ann.  Section  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n     This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf, from refiling the claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n\nJonathan Woodall, AWCC No. H103334 \n \n3 \n \n     The respondents hereby are ordered to pay the court reporter’s invoice within twenty (20) \ndays of its receipt thereof. \n     IT IS SO ORDERED. \n                                                                     \n____________________________                                                                      \n                                                                        Mike Pickens \n                                                                         Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":4808,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H103334 JONATHAN WOODALL, EMPLOYEE CLAIMANT HILL & COX CORP., EMPLOYER RESPONDENT VALLEY FORGE INS. CO./ CNA INS. CO., CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED FEBRUARY 8, 2023 Hearing conducted before the Arkansas Workers...","outcome":"dismissed","outcomeKeywords":["dismissed:1","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:10:12.123Z"},{"id":"alj-G708197-2023-02-07","awccNumber":"G708197","decisionDate":"2023-02-07","decisionYear":2023,"opinionType":"alj","claimantName":"Jose Perez","employerName":"Southern Tire Mart, LLC","title":"PEREZ VS. SOUTHERN TIRE MART, LLC AWCC# G708197 FEBRUARY 7, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/PEREZ_JOSE_G708197_20230207.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"PEREZ_JOSE_G708197_20230207.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G708197 \n \nJOSE MANUEL PEREZ, EMPLOYEE                    CLAIMANT \n \nv. \n \nSOUTHERN TIRE MART, LLC EMPLOYER            RESPONDENT \n \nLIBERTY INSURANCE CORPORATION, CARRIER/TPA          RESPONDENT \n \nOPINION FILED FEBRUARY 7, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the   13\nth\n day of December, \n2022, in Little Rock, Pulaski County,  Arkansas. \n \nClaimant is represented by Mr. Gary Davis, Attorney-at-Law, Little Rock, Arkansas. \n \nRespondents  are  represented  by  Mr.  Michael  E.  Ryburn,  Attorney-at-Law,  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n  \n A hearing was conducted on the 13th day of December, 2022, to determine the sole \nissue  of  temporary  total  disability  from  December  8,  2020,  or,  in  the  alternative,  from \nSeptember 23, 2021, to a date to be determined.  A copy of the Prehearing Order was marked \n“Commission Exhibit 1” and made part of the record without objection.  The Order provided \nthat  the parties stipulated  that  the  Arkansas  Workers’  Compensation  Commission  has \njurisdiction of the within claim and that an employer/employee relationship existed on October \n13, 2017, when the claimant sustained compensable injuries.  At the time of the hearing, the \nparties agreed to stipulate that the claimant earned sufficient wages to earn a temporary total \ndisability rate of $476.00 and a permanent partial disability rate of $357.00.   \nAt  the  time  of  the  hearing,  the  claimant  provided  there  was  a  previous  hearing  on \nDecember  8,  2020,  which  ultimately  resulted  in  the claimant’s requested  surgery  on \nSeptember  23,  2021,  and  the  Court  of  Appeals affirmed the Commission’s findings in an \nOpinion issued  in  April  of  2022.    Consequently,  the  claimant  contends he is  entitled  to \n\nPEREZ – G708197 \n \n2 \n \ntemporary  total  disability  from  the  original  hearing  date  of  December  8,  2020,  or,  in  the \nalternative,  from  September  23,  2021,  the  actual  date  of  the  surgery,  to  a  date  to  be \ndetermined.  The  claimant  had  saved  money  for  the  surgery  and  paid  for  the  procedure \nhimself, and then after the decision of the Court of Appeals affirming the superion surgery, \nthe respondents reimbursed the claimant. \nThe  respondents  contended  at  the  time  of  the  hearing  that they  were  asserting  the \nDoctrine of Latches, and that if the claimant was disabled, he should have raised the issue at \nthe  initial  hearing  or  the  second  hearing,  which  he  failed  to  do.    The  respondents  further \ncontended that these actions were detrimental to the respondent due to the fact they were \nunable to return the claimant back to work or to a doctor for a rating, since he had failed to \nmake a timely claim.  The respondents also contended that the claimant had testified at the \nsecond hearing that he had been fully released and had been working, that there were jobs \nthat he could perform, and that the superion surgery recommended by Doctor Olaya would \nprovide immediate relief, and there shouldn’t be any temporary total disability.   \nConsequently, the parties agreed at the time of this hearing that the sole issue before \nthe Commission was the issue of temporary total disability.  The parties further agreed that \nthe claimant was continuing to receive additional medical.  The parties also agreed that they \nwere  unable  to  obtain  any  medical  from  the  pain  clinic,  and  Dr.  Olaya,  who  performed  the \nsuperion procedure, had left the clinic and they were unable to locate him.  The claimant’s \nmedical records apparently left with him.  \nThe claimant responded to the respondent’s position by contending that they had filed \nthe  AR-C and  they  reserved  the  right  to  pursue  disability  benefits,  including  temporary  or \npermanent,  and  consequently  the  claim  for  temporary  total  disability  had  been  reserved \nthroughout the entirety of the claim.      \n\nPEREZ – G708197 \n \n3 \n \n The claimant’s and respondents’ contentions are set out in their respective responses \nto the prehearing questionnaire and made a part of the record without objection.  The  sole \nwitness to testify was the claimant, Jose Perez.  The claimant submitted an exhibit of medical \nrecords  along  with  the  Court  of  Appeals  transcript  without  objection.  The  respondents \nsubmitted  an  exhibit  which  provided  for  the  payments  that  were made  in  regard  to  the \nclaimant’s treatment.  From a review of the record as a whole, to include medical reports and \nother matters properly before the Commission and having had an opportunity to observe the \ntestimony and demeanor of the witness, the following findings  of  fact  and  conclusions  of  \nlaw  are  made  in  accordance  with  Ark. Code Ann. §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over  this \nclaim. \n \n2.   That  an  employer/employee  relationship  existed  on  October  13,  2017,  the  date \nthat the claimant suffered a compensable injury. \n \n3.   That the claimant has failed to prove, by a preponderance of the credible  evidence, \nthat he is entitled to temporary total disability. \n  \n4.   If not already paid, the respondents are ordered to pay for the cost of the transcript \nforthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The claimant, Jose Perez, testified that he was born on June 25, 1982, and had gone \nthrough  the  fifth  grade  in  Mexico  with  no  education  in  the  United  States.  (Tr.p.11)    The \nclaimant testified he had worked for the respondent for about ten (10) years.  At the time of \nthe  injury,  he  was  driving  a  service  truck for the  respondent  and  was  injured  while  lifting  a \nlarge tire. (Tr.p.12)  The claimant admitted he had received medical treatment and his medical \ntreatment  was  continuing.    He  also  admitted  he  had  already  been  involved  in  a  couple  of \nhearings  in  regard  to this matter and the surgical procedure recommended by Dr. Olaya \n\nPEREZ – G708197 \n \n4 \n \nhad been provided.  He also admitted he had received multiple  injections  which  could  be  \nsometimes  referred  to   as   a  surgical  procedure. (Tr.pp.13-14) \n  The claimant testified that after the actual surgery in September of 2021, he returned \nto the clinic for a follow-up and found Dr. Olaya was no longer at the clinic. Consequently, he \nwent to Little Rock, where he saw Dr. Nissan, who removed the stitches from his back that \nwere the result of the surgery.  He told Dr. Nissan the surgery was no good because he was \nstill suffering pain.  The pain continued, so he returned to see Dr. Nissan and stated that in \nregard to the surgery, “It don’t help at all now.”  Dr. Nissan refused to see him and sent him \nto  Conway  to  Dr.  Mohammed  Tolba,  who  ordered  injections  where  the L3-L4  surgery  was \nperformed. (Tr.pp.15-16)  \n During this time period, the claimant stated that Dr. Olaya personally called him and \nstated, “Hey I moved to a different doctor.  He’s got a beautiful place.  I’m gonna help you \nwith your surgery.  We’ll do the surgery in the right place, which you really need it, and can \nsee me.”  Dr. Olaya also told him, “but you have to cancel the contract you have with them \nso you’ll be able to see me.”  (Tr.p.17)  \n The claimant returned to the pain clinic after the surgery to obtain his records and was \ntold they did not have any records of the surgery and he never had surgery there.  He stated \nhis wife then pulled up his shirt and showed the clinic the scars on his back. (Tr.pp.18-20)  \nThe claimant also testified he was able to find and see Dr. Olaya one more time and Dr. Olaya \ntold him, “Next fall you come and see me and we’ll talk where the surgery is gonna be, cause \nhe was supposed to do another surgery he thinks where the pain was.”  The claimant went \non  to  testify  he had also  received  a  letter  which  stated  that  the  place  was  closed  and  Dr. \nOlaya was not there.  The claimant did not know where to go, so he went to Dr. Garlapati in \nNorth Little Rock to receive injections for his pain.  The injections were placed right beside \nwhere he had the surgery.  (Tr.pp. 21-23)  The claimant contended he had made complaints \n\nPEREZ – G708197 \n \n5 \n \nto  the  police  and  to  the  medical  board  in  regard  to  his  problems.    (Tr.p.25)  He also  was \nunable to locate Dr. Olaya after he had treated with Dr. Garlapati.  (Tr.p.26)   The claimant \nwas currently treating with Dr. Fletcher at the Pain Treatment Center of America in Searcy.  \nIt  was  his  understanding  that  Dr.  Fletcher  was  considering  surgery.   He  also  admitted \ntraveling to Mexico, after the superion surgery, to obtain another opinion.  (Tr.p.27)   He paid \nfor  an  MRI out-of-pocket  to  show  that  he  did  in  fact  have  the  superion  device in  his  back. \n(Tr.p. 28)  \n The claimant testified he has pain in the center of his low back and when he stands or \nwalks for a while, it spreads to the side.  He denied having pain in his legs.  He went on to \nstate,  “But it’s like, it’s so strong like it burns, and when I’m standing for a while, it starts to \nfeel like somebody may be pinch where the nerves.  It feels like it’s real hotter.” (Tr.p.30)     He \nwent  on  to  state  that  he  would  not  be  able  to  work  under  the  circumstances.  (Tr.p.31)   \nAdditionally, he had not been released to return to work after the surgery and had not worked \nfrom  December  8,  2020,  the  date  of  the  surgery,  until  now  due  to  the  horrible  pain.   He \nadmitted he had performed some work with his wife at a hotel and had also admitted the work \nat the previous hearing.  (Tr.p.35)  He also admitted that he had worked for a week and a half \nand would work for a little bit and would then have to go home.  He also worked two (2) hours \na day, two (2) or three (3) days a week at a restaurant, and had probably worked there two \nto    two   and  one-half (2-1/2)  months,  but  the  pain  was  horrible.    He  quit  due  to the  pain.  \n(Tr.pp.36-37)   \n Dr. Fletcher had seen him three (3) times.  He received injections and Dr. Fletcher had \nreviewed the MRIs from Jonesboro, Searcy, and Little Rock, and referred him to Dr. Calhoun, \na  surgical  doctor  in  Little  Rock.   (Tr.p.39)   The  claimant  had  a  return appointment  with  Dr. \nFletcher, who is going to tell him if his insurance approved the next surgery. (Tr.p.40) \n\nPEREZ – G708197 \n \n6 \n \n Under cross-examination, the claimant admitted the pain management treatment by \nDr. Qureshi was approved at the time of the first hearing.  Dr. Qureshi, or his clinic, referred \nthe claimant to Dr. Olaya.  The claimant stated after Dr. Olaya left, he then went to North Little \nRock and then to Little Rock and was told Dr. Rush would not see him, but Dr. Nissan would, \nand they were in the same clinic as Dr. Qureshi.  Dr. Nissan removed the stitches from the \nsurgery, but she refused to see him when he returned with the horrible pain.  She sent him to \nDr. Tolba in Conway, at Arkansas Spine and Pain, which is the same company that provided \nthe trigger point injections.  The claimant denied actually seeing Dr. Garlapati at the time, but \nsaw  Dr.  Nissan  who was  in  the  same  building  with  Dr.  Garlapati.    Dr.  Nissan  removed  the \nstitches on a Friday, but when he returned on the following Monday, she refused to see him, \nand  that’s  when  he  was  sent  to  Dr.  Tolba  who  provided  the  injections.    (T.pp.41-43)    The \nclaimant  also  admitted  he  was  currently  being  treated  by  Dr.  Fletcher  at  Pain  Center  of \nAmerica, who had treated him three (3) times, and that he had elected to go there and was \nnot referred by Dr. Qureshi.  On the second visit to Dr. Fletcher, he was sent to Dr. Calhoun.  \n(Tr.p.44)  He also testified the trigger point injections were not helping and that he had thirteen \n(13) injections with Dr. Olaya, but is currently taking medications prescribed by Dr. Fletcher. \n(Tr.p.45)  The claimant also admitted the superion device that had been implanted into his \nspine did not work at all. (Tr.pp.46-47) \n The claimant also admitted that at the second hearing, he had testified he was working \nat a hotel and at a restaurant.  He also admitted no doctor had taken him off-work completely \nand that at one time Dr. Olaya had stated that he should be released to work.  Prior to the \nsuperion procedure, he was released to return to full-duty.  The claimant also admitted that \nat   one    time    he  was  seen  by  Dr.  Roman  who  stated  that  he  did  not  need  any  treatment. \n(Tr.p.  48)    He  also  admitted  that  the  MRI  showed  that  the  superion  device  was still  in  his \n\nPEREZ – G708197 \n \n7 \n \nback and he did not currently have a record from any doctor that provided that he could not \nwork. (Tr.p.50)    \n The  claimant  was  then  asked  if  he  had any evidence of a doctor taking him off-\nwork since the superion was inserted, yes or no.   The claimant responded, “Sir, the doctor \nhas not released me to work.  After I had this surgery, the doctor never gave me permission \nto work.”  (Tr.p.55) \n On  re-direct,  the  claimant  testified  that  the  fourteen  (14)  injections  he  had  received \nfrom Dr. Olaya was prior to the September surgery.  (Tr.p.56)  The claimant admitted talking \nto Dr. Garlapati and Dr. Calhoun about the superion being placed one level above where it \nshould have been. \n The attorneys were asked to make a closing argument.  The claimant’s representative \ncontended that an injured workers’ compensation party was entitled to rely on the expertise \nof their physician.  The attorney stated Dr. Olaya had personally showed up at his office at \none  point and stated  that  he  had  performed  fifty  (50)  of  the  procedures,  and  they  all  went \ngreat.  It appears Dr. Olaya believed the surgery needed to be performed, but the device was \napparently placed one level too high.  Even Dr. Olaya himself knows this because he’s offered \nto  fix  it  to  avoid  a  medical  malpractice  case.    If  medical  malpractice  was  committed,  the \nrespondents are still responsible for it.  The claimant is still in pain. The medical records from \nthe Arkansas Spine and Pain Clinic and Dr. Olaya are gone. (Tr.pp.61-64) \n The respondents’ representative argued that since medical treatment was not an issue \nat  this  time,  the  only  issue was indemnity benefits.  Workers’ compensation  cases  rely  on \nmedical evidence and there’s nothing you can say except, “Yeah, we need some medical \nevidence.”  We need some medical evidence that this man cannot work and was taken off-\nwork.  There is no evidence to that effect.  The claimant was released to fully return to work \nand there is no basis for an award of temporary disability. (Tr.pp. 65-66)   \n\nPEREZ – G708197 \n \n8 \n \n The claimant’s medical records provided  that  the  claimant  received  injections  for \nsacroiliitis, with the first injection of record by Dr. Olaya on October 25, 2018.  The claimant \nalso received a lumbar facet medial branch block at the L3-L4, L4-L5, and the L5-S1 by Dr. \nOlaya, on his left side on May 13, 2021. (Cl. Ex. 1, pp.1-8)  On September 23, 2021, Dr. Olaya \ninserted a Stabilink MIS Interlaminar Spinal Fixation System at the Central Arkansas Surgery \nCenter. \n After  the  surgery,  the  claimant  received  trigger  point  injections  from  Dr.  Tolba  at \nArkansas Spine and Pain on October 12, 2021.  (Cl. Ex. 1, p.9)  Later, Dr. Tolba provided a \nlumbar  transforaminal  injection  to  the  claimant  on  January  4,  2022.  (Cl.  Ex.  1, p.10)    On \nSeptember 19, 2022, Dr. Garlapati performed a bilateral lumbar medial nerve block at L4-5 \nand at L5-S1.  The report provided the pain score was a 6 out of a 10 prior to the block and \na 4 out of 10 after the block. (Cl. Ex. 1, p.11) \n The claimant made multiple visits to Dr. Olaya, starting November 27, 2018, through \nthe date of September 28, 2021, for his back pain. (Cl. Ex. 1, pp.12-16)  The claimant also \nprovided  pharmacy  records  at  Stanley  Pharmacy  for  the  period  January  10,  2022,  through \nNovember   7,   2022,   which   showed   multiple   prescriptions   for   oxycodone,   duloxetine, \npregabalin, and methadone. (Cl. Ex. 1, pp.17-18)  The claimant also provided a letter from \nthe carrier approving the superion procedure. (Cl. Ex.1, p.19)  The claimant also submitted \nthe Court of Appeals transcript (Cl. Ex. 2, pp.1-218) and photos of the claimant’s back which \nwere admitted without objection. (Cl. Ex. 3)  \n The  respondents  submitted  a  payment  record  which  consisted  of three  pages  of \nrecords that was admitted without objection. (Resp. Ex. 1, p.1-3)       \n      DISCUSSION AND ADJUDICATION OF ISSUES \n \nThe  parties  agreed  at  the  beginning  of  the  hearing  that  the  sole  issue  before  the \nCommission  was  the  issue  of  the  claimant  being  entitled  to temporary  total  disability  from \n\nPEREZ – G708197 \n \n9 \n \nDecember 8, 2020, or, in the alternative, from the date of the surgery on September 23, 2021, \nto a date to be determined.  The facts in this matter are unusual due to the fact the doctor \nwho performed the procedure on the claimant’s back has disappeared along with the medical \nrecords that should have been preserved at the facility where the out-patient procedure was \nperformed.  Here instead of having a normal issue such as dueling medical opinions, we are \nbasically  faced  with  the  fact  that  both  parties  agree  many  important  medical  records  have \nsimply disappeared.  \nThe claimant bears the burden of proof in establishing entitlement to benefits under \nthe Arkansas Workers’ Compensation Act and must sustain that burden by a preponderance \nof the evidence.  Dalton v. Allen Engineering Co., 66 Ark. App 260, 635 S.W.2d 543.   \nThe claimant injured his back in a work-related injury on October 13, 2017, and the \nclaim was accepted as compensable.  He received treatment from Doctor Olaya, receiving \nlumbar epidural steroid injections, facet medial branch blocks, and oral pain medications.  He \ncontended he received little relief from his pain and after a contested hearing, was successful \nin obtaining the superion procedure, which was recommended and performed by Dr. Olaya \non  September  23,  2022.  The  claimant  admitted  that  no  doctor  had  taken  him  off-work \ncompletely and that Dr. Olaya had provided he should be released to work.      \nTemporary total disability is that period within the healing period in which an employee \nsuffers  a  total  incapacity  to  earn  wages.   Arkansas  State  Highway  and  Transportation \nDepartment v. Breshears, 272 Ark. App. 244, 613 S.W. 2d 392 (1984).  The claimant bears \nthe burden of proving both that he remains within his healing period and in addition, suffers a \ntotal incapacity to earn pre-injury wages in the same or other employment.  Palazzo v. Nelms, \n46  Ark.  App.  130,  877S.W.2d  938  (1994).    The  healing  period  ends  when  the  underlying \ncondition causing the disability has become stable and nothing further in the way of treatment \n\nPEREZ – G708197 \n \n10 \n \nwill  improve  the  condition.   Mad  Butcher,  Inc.  v.  Parker,  4  Ark.  App. 124,  628  S.W.2d  582 \n(1982).   \nThe injured employee bears the burden of proving his inability to earn any meaningful \nwage.  Ark. Code Ann. § 11-9-519(e)(1)&(2).  In the present matter, the claimant admitted to \nsome work after the injury.  There are no medical reports of record providing that the claimant \nshould  remain  off-work  due  to his  lower  back  injury,  and  no physician  has  opined  that  the \nclaimant was unable to resume any gainful employment.  The disappearance of the medical \nrecords possibly constitutes an injustice to the claimant, but the law is clear that the claimant \nhas the burden of proof.  The claimant testified he had persistent pain which resulted from \nthe original work-related injury and the following superion surgery.  However, persistent pain \nis not sufficient in itself to extend the healing period or to find the claimant totally incapacitated \nfrom  earning  wages.   See Mad  Butcher,  Inc.  v.  Parker,  supra.    Temporary  total  disability \ncannot be based on speculation or conjecture.  Consequently, there is no alternative but to \nfind that the claimant has failed to satisfy the required burden of proof that he is entitled to \ntemporary total disability.   \nAfter reviewing all the evidence, without giving the benefit of the doubt to either party, \nthere is no alternative but to find that the claimant has failed to prove, by a preponderance of \nthe credible evidence, that he is entitled to temporary total disability.  If not already paid, the \nrespondents are ordered to pay for the cost of the transcript forthwith. \n IT IS SO ORDERED. \n  \n    \n      ________________________________ \n      JAMES D. KENNEDY \n        Administrative Law Judge","textLength":21132,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G708197 JOSE MANUEL PEREZ, EMPLOYEE CLAIMANT v. SOUTHERN TIRE MART, LLC EMPLOYER RESPONDENT LIBERTY INSURANCE CORPORATION, CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 7, 2023 Hearing before Administrative Law Judge, James D. Kennedy, on the 13 th day of D...","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":["back","lumbar"],"fetchedAt":"2026-05-19T23:10:07.896Z"},{"id":"alj-H105339-2023-02-06","awccNumber":"H105339","decisionDate":"2023-02-06","decisionYear":2023,"opinionType":"alj","claimantName":"Darrell Hamilton","employerName":"Cooper Tire & Rubber Company","title":"HAMILTON VS. COOPER TIRE & RUBBER COMPANY AWCC# H105339 FEBRUARY 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HAMILTON_DARRELL_H105339_20230206.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HAMILTON_DARRELL_H105339_20230206.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nWCC NO.:H105339 \n \nDARRELL HAMILTON, EMPLOYEE CLAIMANT \n \nCOOPER TIRE & RUBBER COMPANY,   \nEMPLOYER                                                                                                               RESPONDENT    \n                                       \nCENTRAL ADJUSTMENT COMPANY, INC., \nINSURANCE CARRIER/THIRD PARTY ADMINISTRATOR \n(TPA)                                                                                                          RESPONDENT  \n \n \nOPINION FILED FEBRUARY 6, 2023 \n        \nHearing  held  before  Administrative  Law  Judge  Chandra  L.  Black, in  Texarkana,  Miller \nCounty, Arkansas. \n \nClaimant represented by Mr. Paul Miller, Attorney at Law, Texarkana, Texas. \n \nRespondents  represented  by  Ms.  Karen  H.  McKinney,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n       Statement of the Case \n \nOn  November  8,  2022,  the  above-captioned  claim  came  on  for  a  hearing in \nTexarkana, Arkansas.  Previously, a prehearing telephone conference was conducted in \nthis matter on August 16, 2022.  Following said telephone conference, a Prehearing Order \nwas  entered  that  same  day.    I  have  marked  the  order,  and  the respective  prehearing \nfilings of the parties as Commission’s Exhibit 1 without any objection from either of the \nparties. \nStipulations \nDuring  the  prehearing  telephone  conference  and/or  at  the  hearing,  the  parties \nagreed to certain stipulations.  I hereby accept the following proposed stipulations as fact:  \n\nHamilton – H105339  \n2 \n \n1. That the employee-employer/self-insured employer relationship existed at \nall  relevant  times,  including  on  or  about  February  27,  2021\n1\n,  when  the \nClaimant sustained an admittedly compensable injury to his mid-back. \n \n2. On  October  14,  2021  the  Claimant  underwent  a  Functional  Capacity \nEvaluation (FCE) and was found to be capable of performing work in the \nMEDIUM classification of work as defined by the US Dept. of Labor’s \nguidelines over the course of a normal 8-hour workday with certain physical \nlimitations. \n \n3. The Claimant’s average weekly wage (AWW) on the day of his work-related \naccidental injury was $1,179.00.  His weekly indemnity rate is $736.00 for \ntemporary  total  disability  (TTD)  compensation,  and  $552.00  is  his  weekly \nindemnity rate for permanent partial disability (PPD). \n \n4. On  May  18,  2022,  Dr.  Reza  Shahim  assessed  the  Claimant  a  3% \npermanent  impairment  rating  for  his  back  injury.  The  Respondents  have \naccepted said rating and are paying it or paid it in full.  \n \n5. All issues not litigated herein are reserved under the Arkansas Workers’ \nCompensation Act. \nIssues \n The parties agreed to litigate the following issues:  \n1. Whether  the  Claimant is  entitled  to  wage  loss  disability  for  his  admittedly \ncompensable back injury of February 27, 2021.  \n \n 2. Whether the Claimant’s attorney is entitled to a controverted attorney’s fee. \n \nContentions \n \n The respective contentions of the parties are as follows: \n \nClaimant:  \nMr.  Hamilton  incurred an  on-the-job  injury  to  his  back  while  working  as a \nmixer operator.  As a result of his injury, Hamilton now works in Sort and Palletize \n \n1\n In the hearing transcript, the date of injury is incorrectly stated on page 5.  The correct \ndate of injury is February 27, 2021, and not February 21, 2021.   \n\nHamilton – H105339  \n3 \n \nand has sustained a wage loss.  Mr. Hamilton is entitled to wage loss benefits due \nto the drop in his hourly wage average from $28.00 per hour to $17.50 per hour. \nRespondents:  \n Respondents contend that the Claimant has been released to return to work in a \nMedium  Duty  capacity  and  he  has  returned  to  work  for  Respondents.    Respondents \nfurther contend that the Claimant is capable of working and earning the same or greater \nwages that he earned at the time of his injury and therefore has not sustained any wage \nloss disability. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \nAfter  reviewing  the  record  as  a  whole,  including  the  medical  reports,  the \ndocuments, and all other matters properly before the Commission, and after having had \nan  opportunity  to  hear  the  testimony  of  the  witnesses,  and  observe  their  demeanor,  I \nhereby make the following findings of fact and conclusions of law in accordance with Ark. \nCode Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over this  \n      claim. \n \n2.  The  stipulations  set  forth  above  are  reasonable  and  have  been  accepted  as \nfact. \n \n3.  The  evidence  preponderates  that  the  Claimant  sustained  a  7%  wage  loss \ndisability  over  and  above  his  3%  permanent  anatomical  impairment,  which \nresulted due to his compensable mid-back injury of February 27, 2021. \n \n4.  The   Respondents   have   controverted   this   claim   for   additional   benefits.  \nTherefore,  the Claimant’s attorney is entitled to a controverted attorney’s fee \non the indemnity benefits awarded herein.  \n \n5.  All  issues not  litigated  herein  are  reserved  under  the  Arkansas  Workers’ \nCompensation Act.      \n  \n \n\nHamilton – H105339  \n4 \n \nSummary of Evidence \nThe Claimant, Mr. Darrell Hamilton, testified in his own behalf during the hearing.   \nMr. Toney Thompson also testified on behalf of the Claimant.   \n           The record consists of the hearing transcript of November 8, 2022, and the exhibits \ncontained therein.  Specifically, the evidentiary record includes Commission’s Exhibit 1; \nthe Claimant’s Medical Exhibits consisting of 28 numbered pages was marked Claimant’s \nExhibit  1; Claimant’s  Non-medical  Exhibits  comprising of  19  numbered  pages  was \nmarked Claimant’s Exhibit 2; Respondents introduced into evidence 18 pages of Medical \nRecords,  have  been  marked Respondents’ Exhibit 1; and their Non-medical  Records \nentailing 53 numbered pages were labeled Respondents’ Exhibit 2. \nHearing Testimony \n \nDarrell Hamilton \n \nThe Claimant, age 37, is a high school graduate.  Afterward in 2009, the Claimant \nattended  a  local  community  college,  and  obtained a technical  certificate  in  auto \nmechanics.   The Claimant began working for Cooper Tire and Rubber Company around \n2015  or  2016.    He  initially  worked  performing  employment  duties  for  the  respondent-\nemployer in the mixing department.  The highest position that  the  Claimant held within \nthat department was, mixer operator.  His primary employment duties  as a mixer operator \nincluded mixing rubber and compound.  The Claimant worked in that position for over five \nyears.    \nHe  confirmed  that  on  February  27,  2021  the  day  of  his  work-related  injury, he \nsustained a compensable injury to the left side of his back while performing employment \nduties for the Respondents.  Per the medical records, the Claimant sustained an injury to \n\nHamilton – H105339  \n5 \n \nthe mid-back of the thoracic area.  The Claimant confirmed that the source of his problems \nto  date  continues  to  be  in  that  particular  area  of  his  spine.  He  agreed  that  the \nRespondents/Cooper Tire accepted his injury as compensable and paid benefits to and \non his behalf, including a 3% permanent impairment rating for his mid-back.  According \nto the Claimant, he decided against back surgery because he believed he was better off \nwithout any type of surgical intervention. \nThe Claimant confirmed that he underwent a Functional Capacity Evaluation (FCE) \nand  was  found  to  have  physical  restrictions  and  limitations.    He  was  released  from \nmedical care for his back injury on May 18, 2022.  At that time, the Claimant’s treating \nphysician  instructed  him  to  continue  with  his  current  FCE  restrictions.    Per  his  FCE \nrestrictions, the Claimant’s lifting limitation is 40 pounds.  He can occasionally carry 35 \npounds, and frequently lift 20 pounds.  Additionally, the Claimant has the ability to only \noccasionally push and pull . He confirmed that his employer has provided him a job within \nhis  restrictions.    Specifically,  the  Claimant  testified  that  pushing,  pulling,  repetitively \nbending  and  twisting  cause  his mid-back  to “hurt  really  bad.”    The Claimant  confirmed \nthat the above-mentioned restrictions have been  permanently placed on him.  \nUnder  further  questioning,  the  Claimant  specifically  confirmed  that  as  a  mixer \noperator,  he  made “good  money.”  However,  now  the  Claimant  is  prevented  from \nreturning  to  work in  that  position  because  of  his  physical  restrictions  of  being  able  to \noccasionally lift up to 40 pounds.  According  to the Claimant, while working as a mixer \noperator, he had to lift and load numerous bags of compound that weighed from 40 to 60 \npounds during his entire shift.  The Claimant stated that he is also precluded from working \nas mixer operator due to his restrictions relating to bending, twisting, pushing, and pulling.          \n\nHamilton – H105339  \n6 \n \nThe  Claimant  verified  that  he  worked  with  his  union  representative and  Cooper \nTire  to  find  a  job  within  the  plant that  was  suitable  for  his  restrictions.    Ultimately,  they \ntransferred  the Claimant to work as a sort and palletize operator.  In that particular area, \nthe Claimant is responsible for sorting the tires and putting the proper labels on them.  He \nhas performed that job for  nearly a year.  The Claimant admitted that his  current job is \nsuitable work for his restrictions.  However, the Claimant denied that his current job pays \nas much as the mixer operator work.    \nHe  acknowledged  that  his  employer  introduced  into  evidence  records  showing \nsome  other  jobs  such  as  a  salesperson  for  Frito-Lay,  and  a  worker  for  an  insurance \ncompany.  However, the Claimant confirmed that he does not know if he can do those \njobs  given  his  limitations.    The  Claimant  essentially  testified  that  he  has  the  functional \nability to do some limited bending and twisting.  According to the Claimant, he can perform \nthe  sort and palletize  job  and  stay  within  his  restrictions.    He  admitted  that he  has  not \nlooked for jobs outside of Cooper Tire and tried to figure out whether they were within  his \nphysical  restrictions.  The  Claimant  essentially  confirmed  that  he  develops  certain \nseniority at Cooper Tire, and that is a helpful thing in acquiring promotions.     \nNext, the Claimant was asked to turn his focus to the difference in the pay that he \nmade as a mixer operator as opposed to working in the sort and palletize position.  The \nClaimant was shown a copy of Claimant’s Exhibit 2, which is the first page of his 2019 \nfederal income tax return.  He confirmed that his income is the only income reflected on \nthat document.  He agreed that this document shows that in 2019, he worked as a mixer \noperator at Cooper Tire and his total gross pay was $55,290.00.  The Claimant further \nagreed that the next page of the exhibit shows his 2020 federal tax return.  He confirmed \n\nHamilton – H105339  \n7 \n \nthat  this  document  shows  that  he  earned  $46,859.00  in  2020,  working  as  a mixer \noperator.  However, the Claimant confirmed that although he got hurt in February 2021, \nhe was still classified as a mixer operator.  The Claimant’s union contract guaranteed him \n85% of his average income.   \nSubsequently, in November 2021, the Claimant moved  to his current position in \nsort and palletize.  The Claimant confirmed that given the change of jobs and the 85% \nguarantee,  his  total  income  reflected at  page  3  for  tax  year  2021  was  $42,679.00.  \nAdditionally,    the  Claimant  further  confirmed  that  he  has  spent  the  entire  year  of  2022 \nworking in sort and palletize.  The Claimant testified that as of November 4, 2022 he has \nmade $32,604.00.  For the entire year of 2022, the Claimant estimated his annual income \nfor the year to be $38,632.00.  He confirmed that this is substantially less than what he \nmade  as  a  mixer  operator.    The  Claimant  agreed  that  the  pay  rates  and averages  at \nCooper Tire are confusing to work through.  Therefore, the Claimant relied on his union \nrepresentative  to  help  him  calculate  and  understand  things  such  as  the  averages and \ndifferent segments of pay.  \nClaimant’s attorney introduced into evidence some of the Claimant’s actual payroll \nrecords including a stub that breaks out his pay.  Specifically, Claimant’s Exhibit 2, pages \nfour through 11 show seven consecutive pay periods, and each one has an average.  Per \nthis document, on September 18, 2020 the Claimant’s actual pay average was $26.90.  \nHowever, the Claimant agreed that this paystub has some overtime and holiday pay listed \non it.  For the week of September 25, 2020 the Claimant’s average pay was $29.03.  He \nconfirmed  that  the  pay  records  introduced  into  evidence  accurately  reflect  his  pay \naverages.  \n\nHamilton – H105339  \n8 \n \nThe Claimant confirmed that his other paystubs show that in July 2022, he worked \nin  the  sort  and  palletize  job.    His  initial  regular  pay  average  was  $20.14.  Yet  another \ndocument of record demonstrates the Claimant’s average hourly rate of pay while working \nin  sort  and  palletize  was  $18.94. Given the Claimant’s current averages of pay, he \nconfirmed that he is asking for an award of wage loss disability benefits based upon the \ndifference in pay of what he earned as a mixer operator prior to his injury as compared to \nwhat he now earns from working as a sort and palletize operator.     \nOn cross-examination, the Claimant confirmed that he graduated from high school \nin  2005.    He  admitted  that  he  is  able  to  read  and  write, and  do  math.  The  Claimant \nconfirmed that he has effective communication  skills.  He verified that  prior to going to \nwork  for  Cooper  Tire  in  2016,  he  worked  for  SERVPRO,  which  is  a  water  restoration \ncompany.  According to the Claimant, his employment duties there entailed fire and water \ncleanups. His hourly rate of pay was $15.00.  After the Claimant received his certification \nin auto mechanics, he began working as an auto mechanic.  The Claimant confirmed that \nhe removed motors, transmissions, and starters from vehicles, along with other similar \nactivities associated with auto repair and upkeep. \nRegarding his work at Cooper Tire, the Claimant  initially performed employment \ndutiies as a mixer operator utility worker.  Subsequently, the Claimant was promoted to \nthe position of mixer operator.  The Claimant admitted that he is trainable and that he can \nmove up in the job he is doing now.  He denied that as a mixer operator, a lift assist was \nmade available to him to help with the lifting of the hundred-pound bags.  The Claimant \nfurther denied that he could ask for help with the lifting.  According to the Claimant, he \ncomplained to the union reps about the lack of lift assists.        \n\nHamilton – H105339  \n9 \n \nWith  respect  to  the Claimant’s  February  2021  compensable  back  injury,  he \nconfirmed that he was injured while removing rubber from a ram flapper door when his \ninjury   happened.      The   Claimant   confirmed   that   when  he   reported  his   injury   to \nmanagement,  Cooper  Tire  accepted  it  and  sent  him  for  medical  treatment.  He  initially \nsought  medical  treatment  for  his  injury  from  Healthcare  Express.    The  Claimant  was \nevaluated by Dr. Calhoun, a neurosurgeon in, North Little Rock.   He confirmed that Dr. \nCalhoun talked to him about what was going on with his back and released him back to \nfull  duty  work.  The  Claimant  essentially  testified  that  management  instructed  him to \ncontinue doing light duty work until he underwent his FCE.   According to the Claimant, \nmanagement did not allow him to work as a mixer operator.  The Claimant testified that \nCooper Tire changed his classification in July 2021, after Dr. Calhoun returned him to full \nduty work. \nHowever, the Claimant was shown documents of record proving that when he first \nwent to work for Cooper Tire in April 2016, he was a mixing room utility.  He confirmed \nthat  other  documents  show  that  he  worked  as  a  mixer  operator,  beginning  May 2017 \ncontinuing until April 25, 2020.  He admitted that another document of record shows the \nnext change of employment duties for him occurred on November 19, 2021,  and he went \nto  work  as  a  sort  and  palletize  operator,  which  was  after  his  October  2021 FCE.    The \nClaimant finally admitted that these documents are correct.  However,  the Claimant went \non to explain that he was sent to work in another department, but they did not change his \nclassification until after his FCE.  He maintained that after his FCE, Cooper Tire took it \nupon  themselves  to  change  his  classification  to  another  position,  but  not  the  sort  and \n\nHamilton – H105339  \n10 \n \npalletize  operator  position.  However,  the  Claimant admitted that  he  does not  have  any \npayroll stubs or job change information to verify his testimony in this regard. \nThe Claimant confirmed that he obtained a change of physician to treat with Dr. \nShahim after his release to full duty by Dr. Calhoun.  The Claimant verified that Dr. Shahim \nperformed some injections, and it was determined that the shots were not providing him \nwith any  long-term relief.  He agreed that in May 2022, Dr. Shahim stopped those and \nplaced him at maximum medical improvement.  At that time, Dr. Shahim assessed  the \nClaimant  with  a  3%  impairment  rating  for  his  back  injury.    The  Claimant  admitted  that \nCooper Tire paid him for the 3% rating.   \nFollowing the Claimant’s release to permanent work status by Dr. Shahim in May \n2022, he  admitted that he has not had any  future medical treatment for his back since \nthat  time.  He confirmed that no doctor has removed or excused him from work because \nof his back since May of 2022. \nThe Claimant was shown some of his payroll stubs. He agreed that some of these \npaystubs show that after he reached maximum medical improvement by Dr. Shahim, he \nworked  as  a  sort  and  palletize  operator  and  averaged  at  times, up to  $20.00  an  hour, \nparticularly for the week ending May 27, 2022. The Claimant admitted that Respondents’ \nExhibit No. 2, at page one shows that  he averaged $19.54 for the week of October 21, \n2022.  He agreed that he does not have a set average weekly wage that shows up on his \npay stubs. The Claimant further agreed that his pay is going to vary each week because \nof other factors that go into how much he earns.  Hence, the Claimant essentially agreed \nthat  while  working as  a  sort  and  palletize  operator,  he  does  not  have  the  exact  same  \nweekly wage due to other factors that go into what he earns for that particular week. The \n\nHamilton – H105339  \n11 \n \nattorney for Respondents showed the Claimant his pay stub of record for week beginning \nMay 21, 2022 and  ending May 27, 2022.  The Claimant agreed that this pay stub shows \nhe earned $1, 257.76 for that week.  For week June 4, 2022 through June 10, 2022 the \nClaimant’s  gross  paycheck of  $719.19.  The  Claimant  admitted  that  he  had  other \npaychecks showing rates of $20.16 and $19.98.      \nUnder further questioning, the Claimant admitted that he has taken paid time off, \nwhich  included  holiday  pay,  paid  vacation  leave,  and  FMLA.  However,  the  Claimant \nmaintained  that  since  May  2022,  he  has  taken  FMLA due  to  his  back  injury.    Yet,  the \nClaimant admitted that he did not present any documentation to Cooper Tire showing that \nthe FMLA he has taken was due to his back injury.  The Claimant maintained that he told  \nmanagement that he has blood pressure problems due to his back injury.  In this regard, \nthe Claimant admitted that he did not present any evidence stating that he was unable to \nwork because of back pain and that he was missing hours at work because of his back \ninjury. \nNext, the Claimant was shown pages one through three of his functional capacity \nevaluation.  The Claimant confirmed that page two of that document lists the activities he \ncan do.   He agreed that he can frequently walk at work.  The Claimant further confirmed \nthat  throughout  this  evaluation,  he  was  assessed  to  have  normal  balance.    Per  this \nevaluation, the Claimant can occasionally stoop, and frequently crouch, kneel and climb \nstairs.    He  also  showed  the  ability  to  occasionally  push  and  pull  a  cart.   The  Claimant \nagreed that he can constantly reach with his hands according to this document.  Also, per \nthis evaluation, the Claimant demonstrated the ability to frequently reach overhead, and \ncould do constant finger handling of things.  He admitted that he can constantly stand and \n\nHamilton – H105339  \n12 \n \nsit.  The Claimant confirmed he was released to work in the medium  duty capacity with \nthe limitation of being able to occasionally lift up to 40 pounds. \nHe  confirmed  he  has  not  ever  looked  for  work  outside  of  Cooper  Tire.    The \nClaimant agreed that in today’s economy, there are job openings about everywhere you \nlook.  However, the Claimant admitted that he does not know if he could make more if he \nleft his employment with Cooper Tire because he has not looked for any work outside of \nthe company.  \n Counsel  for  the  Respondents  referred  the  Claimant  to  a  list  of  jobs  for  the \nTexarkana  area  that  she  found on her  search  of  internet.    Specifically, Respondents’ \nattorney showed the Claimant documents representing potential employment with Frito \nLay that pays $58,2000.00 a year.  The Claimant essentially stated that he does not know \nif he could perform the job based on the qualifications or physical requirements of  that \njob. He  confirmed that he has not inquired of anyone about the job. One of the physical \nrequirements of the job is that you be able to drive.  The Claimant admitted he is able to \ndrive,  but  he  stated  that  he  has  problems  with  blurry  vision  due  to  his  blood  pressure \nproblems.    However,  he  admitted  that  he  does  not  have  any  medical  documentation \nexcusing him from driving.  The Claimant maintained that he does not know if he could \nperform the Frito Lay job if he had to lift 40 pounds frequently with or without a reasonable \naccommodation.  However,  the  Claimant  admitted  that  he  holds  a  valid  unrestricted \ndriver’s license.  \n Other jobs found on the internet include that of a power locator, which pays up to \nan annual salary of $52,900.00.  The Claimant confirmed that the pay for this position is \nwhat he was making as a mixer operator.  He confirmed that he is able to enter energized \n\nHamilton – H105339  \n13 \n \nareas, which is one of the requirements for the power locator job.  T he Claimant admitted \nthat everything at Cooper Tire is energized equipment.  One of the other jobs was a plastic \ninjection molding technician, which pays up to $25.00 an hour.  The Claimant confirmed \nthat he could perform the 25-pound lifting requirement for this job.  He agreed that he is \nable  to  work  in  a  dirty,  dusty  and  noisy  environment.  The  other  job  listed  of record, \nincluded that of customer relations representative for an insurance company that showed \nno physical exertions for that position, except standing and walking.  The Claimant agreed \nthat he can operate a computer and engage in communication with people over the phone \nand in person.  However, the Claimant testified that he does not have any type of training \nfor that position although he did graduate from high school. \nThe Claimant agreed that he has gone to school and graduated.  He also agreed  \nthat he got his certification in auto mechanics.  He confirmed that he underwent training \nto become a mixer operator, and to work as a sort and palletize operator.  The Claimant \ndenied that he could not work as a sort and palletize lead because it would go against his \ncurrent restrictions.  According to the Claimant, in the lead position, he would not be able \nto pick the tires out and get into the machinery, nor would he be able to move the pallets.   \nNext, the Claimant was shown a copy of the job description for his current job as \na sort and palletize operator introduced into evidence per Respondents’ Exhibit No. 2, at \npage  11.    Also,  included  in  that  exhibit  is  the  job  duties  for  the  lead  sort  and  palletize \nposition. One of the job duties listed for the operator position is to “Move tires that have \nfailed or no testing to the No-Read overflow conveyor.”  Although the Claimant admitted \nthat  you  have  to move tires in both positions, he explained, “Yes, but the Lead has a \nwhole different thing of moving tires.  Those tires can be up to almost a 100 pounds.”  He \n\nHamilton – H105339  \n14 \n \nalso  denied  he  could  work  as  a  lead  because  sometimes  they  do  not  have  the  right \namount of people to help the lead. The Claimant stated that if he took the lead position, \nhe could not do what they do as far as climbing on top of the conveyor belt.  However, \nthe Claimant admitted that on his FCE, it states that he  can climb, kneel, stoop, reach, \nstand and sit.  The Claimant continued to maintain for reasons discussed above that he \ncannot perform the work of a sort and palletize lead although the description of record \nindicates otherwise.  \nThe Claimant confirmed that he receives production bonuses in his current job of \nsort and palletize operator.  He agreed that his production bonuses are based on the work \nof the group, and not based upon his individual work.  The Claimant confirmed that he \nhas routinely gotten production bonuses since being in the sort and palletize as of May \n2022.   \nOn re-direct examination, the Claimant confirmed that his job in sort and palletize \nwas not one that was simply chosen by him.  Instead, the Claimant confirmed that Cooper \nTire assigned him the job after consultation with the safety people.  The Claimant agreed \nthe job was assigned to him because it was appropriate for his condition.   \nDr. Calhoun’s medical report of July 9, 2021 was made a part of the record.  After \nreviewing  the  report,  the  Claimant  confirmed  that  the  end  notes  state “no  repetitive \nbending, twisting, or lifting.”  The Claimant agreed that he avoids these activities because \nthey make his pain worse.   \nOn re-cross examination, the Claimant confirmed that Dr. Calhoun’s report does \nnot say “no” bending, twisting or lifting.”  Instead, it reads, “no repetitive”  bending, twisting, \nor lifting.” \n\nHamilton – H105339  \n15 \n \nTony Thompson                   \n Mr. Thompson was called as a witness on behalf of the Claimant.  He verified that \nas of the date of the hearing, he continued to be employed by Cooper Tire.  Mr. Thompson \nis  the  vice  president  of  the  union  at  Cooper  Tire.    Per  Mr.  Thompson’s testimony, he \nmanages  the  pension  funds,  insurance  policies,  and  matters  of  that  nature.    Mr. \nThompson confirmed that he took part in matters involving the Claimant at the time of his \ninjury, and during placement of him to a proper job.  Counsel for the Claimant asked Mr. \nThompson to explain how the Claimant ended up in the sort and palletize position in 2021.  \nIn  that  regard,  Mr.  Thompson  testified  that  when  an  employee  disqualifies  off a  job \nbecause of some kind of medical findings, upon receipt of permanent restrictions, they \npull them from that job and give them a list of jobs to choose from within their restrictions.  \nAccording to Mr. Thompson, the company presents the union with a list of jobs; and they \ngive the list to the employee with instructions for the employee to pick a job from the list.  \nMr. Thompson confirmed that the company and union followed this procedure with the \nClaimant’s placement into another job.  He verified that the Claimant’s job fits within the \nrestrictions of his functional capacity evaluation.      \nUnder further questioning, Mr. Thompson was asked to recite for the record, the \nsegments of pay for a worker in the sort and palletize job.  Mr. Thompson testified that \nthe  base  rate  of pay  for  the  sort and palletize  job  is  $15.62.    However,  Mr. Thompson \nexplained that a production bonus, a quality bonus, and a safety bonus, along with a wage \nincrease are added to the top of the average pay for all of the workers.  According to Mr. \nThompson, the wage increase for every job at the plant is $1.24 or 1.238.  He testified \nthat the Claimant’s absolute maximum hourly rate of pay  would be  about  $20.50  if  he \n\nHamilton – H105339  \n16 \n \nreceived  every  possible  bonus.    Mr.  Thompson  agreed  that  there  is  documentation  in \nevidence showing that the Claimant was earning an average of $18.94.  \nHe confirmed that this included all potential bonuses.  Mr. Thompson was shown another \ndocument of record proving that $33.64 was the absolute maximum the Claimant could \nearn as a  mixer operator.  \nUnder further questioning,  Mr. Thompson essentially agreed that there is nothing \nunusual about the sort and palletizing job having six different segments of pay added to \nthe workers’ average pay.  According to Mr. Thompson, basically every job at the plant is \naveraged out using this method.  \nOn cross-examination, Mr. Thompson confirmed that he stated that the absolute \nmaximum rate for S&P (sort and palletize) is about $20.50.  However, he agreed that a \nCooper Tire monthly report introduced into evidence shows that the highest pay is $20.69 \nfor the week of May 21 through May 27, 2022.  However, Mr. Thompson explained that \nhe testified that the Claimant’s highest pay was about $20.50, and that he low balled it a \nbit.   \nMr. Thompson agreed that the Claimant’s payroll records for May 21, 2022 through \nMay 27, 2022 show his rate as being $20.16 with all the add-ons.  He also agreed that \nthe Claimant has the potential to earn a little bit more.  \nRegarding other jobs, Mr. Thompson agreed that there are other jobs at Cooper \nTire  that  someone  could  perform  if  they  had  a  maximum  lifting  of 40  pounds.  Mr. \nThompson further agreed that there are a bunch of classifications in the bead room that \npay  quite  a bit.    He  further  agreed  that  these  jobs  are not  as physically  demanding  as \nsome of the other jobs at Cooper Tire.  Mr. Thompson confirmed that with the Claimant’s  \n\nHamilton – H105339  \n17 \n \nrestrictions, he could do the jobs in the bead room.   However, he confirmed that these \nare highly sought after jobs, and by contract you cannot just put the Claimant in any of \nthose jobs.  According to Mr. Thompson, the Claimant could go through the contract the \nright way of the bidding process and bid on one of the bead room jobs.  He confirmed that \nthe Claimant could bid on some of the jobs in the bead room and his restrictions would \nnot prevent him from doing some of these jobs.   \nHe testified that at Cooper Tire you have to go through the bidding process.  Mr. \nThompson testified that the Claimant could physically do his job, but he would have to \nrun  for  it  and get  elected.    According  to  Mr. Thompson,  his    job  is  chosen  every three \nyears and it pays more than $50,000 a year.  Mr. Thompson further agreed that there are \njobs at Cooper Tire that the Claimant can do and earn as much as he was earning in the \nMixing Room.  However, Mr. Thompson  testified that the Claimant has to bid for those \njobs when they come open. Mr. Thompson further testified that with the Claimant being \nthere no more than six years, he probably would not get the job.   \nMr. Thompson  testified: \nQ But  like  he  said,  he  loves  Cooper  Tire,  he  has  seniority  and  he  wants  to \nstay, so his capacity to earn wages is there, correct? \n \nA No, not to earn what he was making.  He didn’t  elect  to  go  to  that  job.  \nCooper Tire made him take that job.  \n \nOn re-direct examination, Mr. Thompson testified that most of the guys in the bead \nroom  jobs  have  twenty-five  (25)  to  thirty  (30)  years  with  Cooper  Tire.    Mr.  Thompson \nspecifically testified that these jobs are some of the premium jobs in the plant.                               \n \n \n\nHamilton – H105339  \n18 \n \nMedical Evidence \n A  review  of  the  medical  records  show  that  on  May  21,  2021,  the  Claimant \nunderwent  evaluation  by  Dr.  J.  Michael  Calhoun.    The  Claimant  presented  with  acute \nthoracic back pain since his February 28, 2021 back injury while working on a machine \nthat makes  rubber tires.   Per these  chart  notes,  the  Claimant  was evaluated  at  Urgent \nCare and started on physical therapy with no improvement.  Dr. Calhoun reported that an \nMRI obtained on April 21, 2021 showed a T8-9 disc protrusion with some lateral recess  \nstenosis on the left.  Also, these notes show that the Claimant underwent a lumbar MRI \nwhich showed some degenerative changes at L5-S1, but no neural impingement.  The \nClaimant  reported  that  his  pain  radiated  around  his  lateral  side  to  the  anterior  left \nabdomen.  The Claimant was given the choice of injections.  He elected to move forward \nwith the thoracic epidural steroid injections.  Dr. Calhoun continued the Claimant’ s work \nrestrictions of no lifting over 10 pounds and no repetitive bending, twisting, or lifting. \n The Claimant presented to Dr. Calhoun on July 9, 2021 with acute thoracic back \npain. According to this clinical note, the Claimant underwent a thoracic epidural injection \non June  18, 2021 with no improvement in his left radicular symptoms.  At that time, the \nClaimant had more mid-thoracic pain and some low back pain.  As a result, Dr. Calhoun \nrecommended nerve root blocks.  The Claimant decided to proceed with the blocks.  He \ncontinued the Claimant’s prior work light duty work restrictions.                   \nOn  October  14,  2021  the  Claimant  underwent  a  functional  capacity  evaluation.  \nThe examiner found that the results of this evaluation indicate that the Claimant put forth \na reliable effort, with 51 of 54 consistency measures within expected limits.  Most notably, \nanalysis of the data collected during this evaluation proves that the Claimant did put forth \n\nHamilton – H105339  \n19 \n \nconsistent  effort  and  passed  all  criteria  for  a  reliable  effort  indicating  that  a  significant \ndegree of effort was put forth. According to this assessment, the Claimant demonstrated \nlimited  lumbar  flexion  and  demonstrated  poor  tolerance  to  repetitive  and  sustained \nstooping  and  performed  these  activities  at  the  occasional  frequency  level.    His  other \nfunctional limitations demonstrated were with pushing/pulling a cart, as he was limited to \nthe occasional level for this activity as well.  However, the Claimant performed all other \nactivities at a level consistent with that of an average worker.  The Claimant demonstrated \nfunctional  limitations  during  his  evaluation,  which  included  the  ability  to  perform  an \noccasional bi-manual lift up to 40 pounds, and an occasional carry up to 35 pounds.  He \nalso  demonstrated  the  ability  to  frequently  lift  up  to  20  pounds.  Overall,  the  examiner \nconcluded  that  the  Claimant  demonstrated  the  ability  to  perform  work  in  the MEDIUM \nclassification as defined by the US Dept. of Labor’s guidelines over the course of a normal \n8-hour workday with limitations as noted above.      \nAn MRI of the Claimant’s thoracic spine was performed on March 10, 2022, with  \nthe following impression, “Multilevel degenerative disc disease. Small left paracentral disc \nprotrusions at T6-7 and T8-9.” \n On  May 18,  2022  the  Claimant  presented  to  Dr.  Reza  Shahim  for  follow-up  of \nthoracic spine pain on the second lumbar vertebrae.  Per this clinic note, the Claimant \nwas last seen on April 26, 2022, at which time he was given activity guidelines per his \ncurrent FCE restrictions.  Dr. Shahim reviewed the with Claimant  in detail his  previous \nMRI of the lumbar spine that revealed spondylosis with stenosis at L4-5 and T 6-7 and \nT9-10.    Treatment  options  were  also  explained  to  the  Claimant,  which  included spinal \ndecompression  surgery  with  risk  of  residual  weakness  and  numbness  that  may not \n\nHamilton – H105339  \n20 \n \nimprove. Alternatives to surgery were also given, which included continuing with spinal \ninjections, medications, and physical therapy.  The technical aspects of spinal injections \nwere explained to the Claimant,  including partial improvement, temporary improvement, \nand the need for repeat spinal injections.  At that time, Dr. Shahim assessed the Claimant \nwith “thoracic spine pain” for which he prescribed Lyrica twice a day.  The Claimant was \ndirected  by  Dr.  Shahim  to  return  to  work  the  next  day,  on  May  19,  2022 with  the \nrestrictions placed on him by the findings outlined in his FCE. Dr. Shahim’s wrote: \nImpression/Plan:  Patient  with  lumbar  pain,  we  have  discussed  in  detail  multiple \noptions  including  surgery  vs  conservative management.  Patient  has  a multilevel \nthoracic spondylosis mild lumbar spondylosis his impairment rating is 3% thoracic \ndisc protrusion not surgically treated. I think he is at MMI, and I would follow the \nfunctional capacity recommendations. I suspect he has degenerative disc disease \nand  osteoarthritis. He  really  has  not  responded  well  to  injections  well.  I  am \nreleasing him at this point since he is at MMI. I did have a long discussion with him \nthat he is not a surgical candidate and I do not believe further treatment will be of \nmuch benefit to him.           \n \n             Adjudication \nA.  Wage-Loss Disability   \n T he sole  issue for determination in this claim is whether the Claimant is entitled to \npermanent  partial  disability  benefits  in  excess  of  his  percentage  (3%)  of  permanent \nphysical impairment.   \nSpecifically,  in  a  nutshell,  the  Claimant  contends  that  he  sustained  wage-loss \ndisability,  over  and  above  his  3%  permanent  anatomical  impairment  resulting from  his \nadmittedly compensable back injury of February 27, 2021.  The Claimant contends that \nhis hourly rate of pay was reduced from $28.00 to $17.50 due to his back injury.  To the \ncontrary, the Respondents contend that the Claimant is capable of earning the same or \n\nHamilton – H105339  \n21 \n \ngreater wages that he earned at the time of his injury and therefore has not sustained any \nwage loss disability.        \n    When considering claims for permanent partial disability benefits in excess of the \nemployee's percentage of permanent physical impairment, the Commission may take into \naccount, in addition to the percentage of permanent physical impairment, such factors as \nthe employee's age, education, work experience, and other matters reasonably expected \nto affect his or her future earning capacity. Ark. Code Ann. §11-9-522(b)(1).   \n    In  considering  factors  that may  affect an employee's future  earning  capacity, the \nappellate  court  considers  the  Claimant's  motivation  to  return  to  work,  since  a  lack  of \ninterest or a negative attitude impedes an assessment of the Claimant's loss of earning \ncapacity.  Ellison v. Therma Tru, 71 Ark. App. 410, 30 S.W.3d 769 (2000).   \n However, so long as an employee, subsequent to his or her injury, has returned to \nwork, has obtained other employment, or has a bona fide and reasonably obtainable offer \nto be employed at wages equal to or greater than his or her average weekly wage at the \ntime of the accident, he or she shall not be entitled to permanent partial disability benefits \nin  excess  of  the  percentage  of  permanent  physical  impairment  established  by a \npreponderance   of   the   medical   testimony   and   evidence.   Ark.   Code   Ann.   §11-9-\n522(b)(2)(Repl. 2002). \n Here, the Claimant is relatively of a young age, he is 37 years of age.  He is a high \nschool graduate.  The Claimant has also obtained certification as an auto mechanic.  He \nhas a primary work history of performing heavy/laborious work activities before going to \nwork for Cooper Tire in 2016.  When the Claimant initially began working for Cooper Tire, \nhe  worked  in  the  Mixing  Department,  as  a  mixer  utility  worker.    Ultimately,  in  that \n\nHamilton – H105339  \n22 \n \ndepartment, the Claimant was promoted to a mixer operator job.  Both positions required \nheavy lifting.  But, at the time of his admittedly compensable back injury of February 27, \n2021, the Claimant worked as a mixer operator.  \nSpecifically, the Claimant sustained an admittedly compensable injury to his back \nwhile removing tire rubber from a machine on February 27, 2021.  The Claimant reported \nhis injury to management, and they provided  him with proper medical treatment for his \nback injury.  The Claimant underwent conservative care for his back injury, under the care \nof Drs. Calhoun and Shahim.  His medical care  for his back injury included light duty work \nrestrictions, a medication regimen, and injections.  These injections provided the Claimant \nwith no relief of his symptoms.  Therefore, they were discontinued, and the Claimant was \nreleased from medical care  by Dr. Shahim on May 18, 2022.  At that time, Dr. Shahim \nassessed  the  Claimant  with  a  3%  permanent  anatomical  impairment  to  the  body  as  a \nwhole for his compensable back injury.  The Respondents accepted and paid this rating. \nThe  Claimant  underwent  an  FCE  in  October  2021  with  reliable  results.    He \ndemonstrated the ability to perform the medium classifications of work of the course of a \nnormal  8-hour  workday  per  the  guidelines  of  the  US  Dept.  of  Labor’s guidelines.    The \nClaimant is permanently restricted to lifting up to 40 pounds, along with other restrictions \ndiscussed  above  in  full  detail.    These  are  permanent  work  restrictions  that  have  been \nplaced  on  the  Claimant  by  his  treating  physician  pursuant  to  the  findings  of  his  FCE.  \nSince  the  Claimant  performed  heavy  duty  work  activities  as  a  mixer  operated,  Cooper \nTire prohibited him from returning to work as a mixer operator due to these permanent \nrestrictions.  Therefore, after the Claimant was released pronounced to be at maximum \nmedical improvement and released from medical care, he collaborated with the company \n\nHamilton – H105339  \n23 \n \nand his union representative to find a job within his restrictions.  The Claimant currently \nworks as a sort and palletize operator. \nHis current maximum hourly rate of pay is  approximately $20.69 in his current job.  \nHowever, had the Claimant been able to continue working as a mixer operator, his current \nmaximum hourly rate of pay as of October 2022 would be $33.64.  Prior to his injury, the \nClaimant  earned $55,290 for  tax  year  2019,  performing employment  duties  as a mixer \noperator.  During tax year 2020, the Claimant earned  $46,859, which was during the time \nhe  got  hurt.  He  estimated  his  annual  salary  for  2022  in  his  current  position  is  \napproximately $38,632. \nWhile  the  Claimant  has  not  looked  for  work  outside  of  Cooper  Tire,  he  worked \ndiligently  with  the  company  and  his  union  representative  to  find  a  job within  his \nrestrictions. His testimony demonstrates that he likes working for the Cooper Tire and he \nhas accumulated some seniority  with the company.  Moreover, the Claimant can make \nmore money in the future via the union contract bidding process, but given his seniority \nof only six years, and with his restrictions, he will be significantly limited to what he can \nearn in the future. Mr. Thompson’s and the Claimant’s testimony led me to this conclusion, \nalong  with  the  medical  opinions  relating  to  his  of  his  permanent  restrictions.  Of  note,  I \nfound that Mr. Thompson to be an extremely credible witness.  \nHence, the evidence demonstrates that the Claimant has successfully returned to \nwork  within  his  restrictions  at  Cooper  Tire.  Mr. Thompson’s testimony proves that the  \nClaimant  was  given  a  list  of  jobs  to  choose  from  and  he  chose  the  sort and  palletize \noperator position.  Under these circumstances, I do not find that the Claimant’s decision \n\nHamilton – H105339  \n24 \n \nto look for work exclusively at Cooper Tire impedes an assessment of the Claimant's loss \nof earning capacity.   \nI do note that the Claimant has been restricted to medium duty work.  Most of the \njobs at Cooper Tire within the Claimant’s reach require heavy duty work restrictions.  The \nClaimant has the potential to make more money than he is currently making.  However, \nthe  Claimant  has  suffered  a  decrease  in  his    wage-earning  capacity  because  he  is \nprecluded from returning to work in his job as a mixer operator and other similarly paying \njobs,  which  require a  heavy-duty  work  capacity.    He  is  now  permanently  restricted  to \nworking in a medium duty capacity.  His testimony demonstrates that he continues with \nback pain duty to his compensable injury. I found the Claimant to be a credible witness in \nthis regard.      \nBased  on  the  Claimant’s relatively  young age,  limited  education  and  work \nexperience,  permanent    work  restrictions  of  medium  duty,  his  prior  work  having  been \nheavy duty capacity, the nature and extent of his injury and impairment, his post-injury \nearning, and all other matters probably before the Commission, I find that the Claimant \nsuffered a 7% impairment to his wage earning capacity in excess of his 3% permanent \nanatomical impairment.    \nI recognize that the Claimant was presented with potential jobs in the Texarkana \narea that paid about the same or greater wages that he earned while working as a mixer \noperator.  However, these jobs were only possibilities and hypotheticals, as there is no \nevidence whatsoever of the Claimant having received a bona fide job offer to be employed \nat wages equal to or greater than his wages at the time of his accident.  Moreover, there \nis no evidence demonstrating with any certainty the Claimant would have started out on \n\nHamilton – H105339  \n25 \n \nthese job at the highest pay level since he has no past work experience with any of the \ncompanies or in that particular type of work.  Thus, I am persuaded that it would require \nan  impermissible amount of  speculation  for me to  conclude  that  the  Claimant  would  in \nfact earn the same or greater wages that he earned as a mixer operator.  \nB. Controverted Attorney’s Fee     \n The  Respondents  have  controverted  this  claim  for  wage  loss  disability.  Thus,  the \nClaimant’s attorney is entitled to a controverted attorney’s fee on the indemnity benefits \nawarded herein pursuant to the statute, explicitly Ark. Code Ann. §11-9-715.  \n          AWARD \nIn  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth,  the \nRespondents are directed to pay benefits as set forth herein.   \nThe Claimant’s attorney is entitled to the maximum statutory attorney’s fee on the \nindemnity benefits awarded herein, one-half of which is to be paid by the Claimant and \none-half to be paid by the Respondents in accordance with to Ark. Code Ann. § 11-9-715.  \nAll accrued sums shall be paid in a lump sum without discount and this award shall \nearn interest at the maximum legal rate until paid, pursuant to Ark. Code Ann. §11-9-809.   \nThe Respondents are directed to pay the court reporter’s fee within thirty (30) days \nof receipt of the invoice. \nAll issues not addressed herein are expressly reserved under the Act. \n \nIT IS SO ORDERED. \n \n                        \n______________________ \n                                                                           Chandra L. Black \n                 Administrative Law Judge \n \n\nHamilton – H105339  \n26","textLength":48258,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO.:H105339 DARRELL HAMILTON, EMPLOYEE CLAIMANT COOPER TIRE & RUBBER COMPANY, EMPLOYER RESPONDENT CENTRAL ADJUSTMENT COMPANY, INC., INSURANCE CARRIER/THIRD PARTY ADMINISTRATOR (TPA) RESPONDENT OPINION FILED FEBRUARY 6, 2023 Hearing held before Administrative Law ...","outcome":"granted","outcomeKeywords":["granted:4"],"injuryKeywords":["back","thoracic","repetitive","lumbar"],"fetchedAt":"2026-05-19T23:10:05.822Z"},{"id":"alj-H203628-2023-01-31","awccNumber":"H203628","decisionDate":"2023-01-31","decisionYear":2023,"opinionType":"alj","claimantName":"William Holmes","employerName":"Conagra Foods, Inc","title":"HOLMES VS. CONAGRA FOODS, INC. AWCC# H203628 JANUARY 31, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HOLMES_WILLIAM_H203628_20230131.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HOLMES_WILLIAM_H203628_20230131.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO.  H203628 \n \n \nWILLIAM W. HOLMES, Employee CLAIMANT \n \nCONAGRA FOODS, INC., Employer RESPONDENT \n \nACE AMERICAN INSURANCE CO./BROADSPIRE, Carrier/TPA RESPONDENT \n \n \n \n OPINION FILED JANUARY 31, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Russellville,  Pope \nCounty, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney at Law, Little Rock, Arkansas. \n \nRespondents represented by MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. \n \n \n \n STATEMENT OF THE CASE \n \n On November 3, 2022, the above captioned claim came on for a hearing at  Russellville, \nArkansas.      A  pre-hearing  conference  was  conducted  on  August  30,  2022,  and  a  Pre-Hearing \nOrder  was  filed  on  September  13,  2022.      A  copy  of  the  Pre-Hearing  Order  has  been  marked \nCommission's Exhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2.      The  relationship  of  employee-employer-carrier  existed  between  the  parties  on \nFebruary 12, 2022. \n 3.   The respondents have controverted the claim in its entirety. \n\nHolmes – H203628 \n \n \n-2- \n 4.      The  Claimant  was  earning  sufficient  wages  to  entitle  him  to  compensation  at  the \nweekly rates of $548.00 for temporary total disability benefits and $411.00 for permanent partial \ndisability benefits. \n 5.   The parties stipulate that if Claimant is able to prove his left shoulder injury to be a \ncompensable  injury,  the  Respondent  is  entitled  to  a  credit  for  short  term  disability  benefits  as \nprovided in the Arkansas Workers’ Compensation Act. \n By agreement of the parties the issues to litigate are limited to the following: \n1. Whether   the claimant sustained a compensable gradual onset injury to his left  \nshoulder culminating on or about February 11, 2022; or,  alternatively, whether he sustained a \nspecific injury to his left shoulder on February 11, 2022.  \n2. Whether Claimant is entitled to medical treatment. \n3. Whether Claimant is entitled to temporary total disability benefits from February \n12, 2022 to August 3, 2022. \n4. Whether Claimant’s attorney is entitled to an attorney fee. \n5. Respondents raise Lack of Notice as a defense to this claim. \n Claimant’s contentions are: \n“On  2/11/2022,  claimant  was  lifting  several  50-lb.  bags  onto  a \ntable.   He has done this  for 17 years.   On the day of the accident, \nhe  became  unable  to  lift  any  more  bags  due  to  pain  in  his  left \nshoulder.    Claimant  reported  the  injury  to  the  nurse,  but  his  claim \nwas denied in its entirety.  Claimant sought treatment on his own.  \nHe  had  an  MRI  to  his  left  shoulder,  and  it  revealed  a  tear.  \nClaimant underwent surgery. \n \nClaimant  contends  that  he  sustained  a  compensable  injury  in  the \nscope and course of employment and that he is entitled to medical \nbenefits, TTD and that his attorney is entitled to an attorney fee. \n \nAll other issues are reserved.” \n\nHolmes – H203628 \n \n \n-3- \n \n Respondents’ contentions are: \n \n“Respondents contend that Claimant did not suffer a compensable \ngradual onset or specific incident injury on 2/11/22 while working \nfor  Respondent/Employer.    The  Claimant  failed  to  provide  notice \nof a claimed injury until 5/16/22.  Respondents contend that in the \nevent   compensability   is   found,   they   would   not   be   liable   for \nbenefits until receipt of actual notice of a claimed injury.” \n \n \n The claimant in this matter is a 54-year old male that alleges he sustained a compensable \ngradual  onset  injury  to  his  left  shoulder  culminating  on  or  about  February  11,  2022;  or, \nalternatively,  a  compensable  specific  incident  injury  to  his  left  shoulder  on  February  11,  2022.  \nThe  claimant  was  employed  by  the  respondent  employer  on  February  11,  2022,  and  had  been \nemployed  by  the  respondent  employer  for  many  years.    The  respondent  employer  is  in  the \nbusiness  of  producing  pre-made  food  or  meals  for  consumers.    The  claimant  worked  in  one  of \nthe respondent employer’s production plants as a spice utility prep.  In his job as a spice utility \nprep the claimant would insert large amounts of different types of spices into a blending machine \nthat  would  mix  or  blend  the  spices  together  for  the  food  products  being  produced  in  the \nrespondent  employer’s  plant.    At  the  hearing  in  this  matter  the  claimant  gave  a  detailed \ndescription of the process he would go through in performing his job duties mixing spices.  I will \nsummarize the pertinent portions of that testimony.  The claimant testified that he would arrive at \nwork, clock in, and gather his needed supplies including  Kevlar gloves, knife, hair net, smock, \napron, and face mask.  The claimant would also retrieve a boat paddle that he used to clean out \nthe blender that the spices were poured into.  After retrieving those supplies, the claimant would \nthen use a forklift to retrieve a pallet that normally contained 1200 pounds of spices in 50-pound \nbags.  This pallet of 24 50-pound bags equaling 1200 pounds is called a blend.  Among those 50-\n\nHolmes – H203628 \n \n \n-4- \npound bags there is a variety of different spices to be mixed together, but all of the bags weighed \n50  pounds.    I  note  that  sometimes  the  pallets  or  blends  weighed  2000  pounds  instead  of  1200 \npounds and contained 40 50-pound bags instead of 24 50-pound bags. \n The  claimant  would  use  a  forklift  to  move  the  pallet  or  blend  to  a  room  in  the  facility \nwhich contained a machine called a “river blender.”  This is a large machine that mixes all of the \nspices  together  for  use  in  food  production.    The  claimant  would  place  the  pallet  or  blend    on \nsome sort of spring-loaded lift that would raise the pallet or blend up to the height of the table on \na  platform  above  the  river  blender.    The  claimant  would  then  ascend  steps  to  the  platform  and \ntake  the  50-pound  bags  off  of  the  pallet  or  blend  and  place  them  on  the  table.    When  the  50-\npound  bag  is  on  the  table  the  claimant  would  use  his  knife  to  remove  the  outer  bag  from  the \nspice, a process the claimant called stripping.  The claimant would then throw the outer bag away \nin  a  receptacle  underneath  him  and  pour  the  contents  of  the  sack  which  at  that  point  were  still \ncontained in a secondary bag into a hopper of the river blender.  The claimant would repeat this \nprocess until the pallet or blend was completed.  The claimant testified that four to five times a \nday he would have to use the canoe paddle to clean out the river blender as this had to be done \nwhen  the  spice  recipe  changed  for  different  food  products.    The  claimant  testified  that  he \nnormally  worked  an  eight-hour  day,  but  often  worked  10  or  12  hour  days.    The  claimant  also \ntestified that he normally did 12 pallets or blends per day, but often did 16 or 18 pallets or blends \nper day. \n On direct examination the claimant was asked about his left shoulder difficulties and his \nreporting to his employer about those difficulties as follows: \n  Q And so tell us what transpired in February of 2022. \n \n  A Well, I started noticing pain in my shoulder, right here, \n\nHolmes – H203628 \n \n \n-5- \n  the left shoulder I had the surgery on.  I just thought, you \n  know, it was just a pulled muscle or something, so I never \n  went to the nurse or nothing.  I just tolerated it.  So it began \n  to start burning and getting worse, so I went and told my \n  supervisor Tyler that I was going to go see the nurse,  \n  which she is here right now.  I went and seen Lisa. \n \n  Q Let me ask you this.  Did you tell Tyler that your \n  shoulder was hurting –  \n \n  A Yes, ma’am, when I was – \n \n  Q Let me finish my question.  I want to make sure you \n  understand all of it.  Okay? \n \n   Did you tell Tyler that your shoulder was hurting  \n  because of a work injury? \n \n  A No, I did not.  I just told him I was going to see the \n  nurse; that my shoulder was hurting. \n \n  Q And you mentioned that Lisa is in the courtroom \n  with us today; correct? \n \n  A Yes, ma’am, she is. \n \n  Q Now, when you went to see Lisa, did you tell her \n  your shoulder was hurting? \n \n  A Yeah.  She sent me to my family doctor. \n \n  Q Now, what transpired on February 11\nth\n, 2022?  Did \n  your pain get better, get worse, or stay the same.  What was \n  different about February 11\nth\n? \n \n  A Can you rephrase the question again; please? \n \n  Q Sure.  You mentioned that when your spice blend \n  changed and they added more pallets, that’s when your \n  shoulder began to hurt.  Is that correct? \n \n  A Yes, that’s correct. \n \n  Q And do you know approximately how long it was \n  before February 11\nth\n that they added those pallets? \n\nHolmes – H203628 \n \n \n-6- \n \n  A No, I do not. \n \n  Q Okay. \n \n  A They added more and it started hurting, and I  \n  should have reported it sooner but I didn’t. \n \n  Q We’re going to get to that.  On February 11\nth\n, what \n  were you doing that made you stop and tell Tyler you \n  needed to get medical treatment? \n \n  A Because I couldn’t lift the bag. \n \n  Q What were you doing? \n \n  A I was lifting the bag and putting the spices in the \n  hole.   \n \n  Q So you were lifting a bag – \n \n  A It started hurting worse. \n \n  Q And it got worse? \n \n  A (Witness nods.) \n \n  Q And you went to see Lisa? \n \n  A Uh-huh. \n \n  Q Is that a “yes?” \n \n  A Yes. \n \n  Q Did you tell Lisa at that time that you saw her, that \n  first time, that this was a work injury? \n \n  A Yes, I believe I did. \n \n  Q Was some workers’ comp paperwork offered to you \n  that day? \n \n  A No. \n \n\nHolmes – H203628 \n \n \n-7- \n  Q What did Lisa tell you to do? \n \n  A She just told me to go see my family physician. \n \n \n On  cross-examination,  the  claimant  was  questioned  about  his  reporting  of  his  left \nshoulder difficulties as follows: \n  Q In your deposition, my law partner was asking you \n  about when the pain started around February of ’22, and  \n  you stated that your shoulder was hurting for several \n  weeks, you ignored it, and didn’t say anything.  Is that \n  right? \n \n  A You are correct. \n \n  Q But then on February 11\nth\n that’s when you went \n  to Tyler because the pain was more severe; is that right? \n \n  A Yes, it got worse.  It was getting to where I couldn’t \n  take it. \n \n  Q And you told us today that you admit that you \n  didn’t tell Tyler that it was a work injury that led to that \n  shoulder problem; is that correct? \n \n  A No, I just told him I was going to see Lisa, going \n  to the nurse.  I didn’t say anything about that. \n \n  Q But  you were asked earlier whether you told Lisa \n  that it was a work injury, and you said that you thought \n  you did.  Is that right? \n \n  A I thought I did. \n \n  Q At the time of your deposition, though, you were \n  asked about that, and I’m on page – starting at the bottom \n  of page 22 you were talking about going to talk to a nurse,  \n  and you said her name was Lisa? \n \n  A Yeah, she’s here. \n \n  Q And you were asked, “What did you tell Lisa?”   \n  Your response was, “I said have severe shoulder pain.  I \n\nHolmes – H203628 \n \n \n-8- \n  think I need to see a doctor.” \n \n  A Yes, that’s what I told her. \n \n  Q And on page 23 it says, “Did you tell her it was \n  work-related?”  Your response was, “No, ma’am.”  Is \n  that correct? \n \n  A No, I didn’t tell her  - I just told her I needed to \n  see a doctor. \n \n  Q So you didn’t say at that time it was work-related? \n \n  A No. \n \n The  claimant  was  seen  by  his  primary  care  physician,  Dr.  Allan  Kirkland,  on  February \n11, 2022.  Following is a portion of that medical record found at Claimant’s Exhibit 1, page 2: \n  HPI \n  Nurse’s Note:  53 y/o male unaccompanied here with c/o \n  left shoulder pain.  states pain in left shoulder x1wk.  pain \n  radiates to deltoid area.  pain is 10/10 when doing any \n  activity or movement with left arm.  heat helps with the \n  pain.  didn’t feel anything pop in shoulder, thinks it from \n  over use of arm, no pain when resting.  works at conagra \n  and does repetitive lifting 50 lb. bags and uses left arm \n  mostly when pouring the bags.  has paperwork that needs \n  to be completed before he can come back to work. \n \n  Provider’s Note:  This 53-year-old male presents to clinic \n  today complaining of left shoulder pain.  Symptoms started \n  about a week ago.  He has a repetitive motion job as above \n  and feels that it started at work.  There was no acute injury. \n  Pain is severe with forward flexion or abduction at the \n  shoulder.  He denies any crepitus or prior injury.  The right \n  shoulder is doing fine. \n \n \nThe  claimant  was  taken  off  work  by  Dr.  Kirkland  until  March  3,  2022,  and  given  a  follow-up \nappointment for February 25, 2022. \n\nHolmes – H203628 \n \n \n-9- \n At  the  claimant’s  February  25,  2022  appointment  with  Dr.  Kirkland  the  claimant  was \nordered to physical therapy and for a consultation with Dr. Jeff Cartwright who is an orthopedist.  \nDr.  Cartwright  ordered  an  MRI  of  the  claimant’s  left  shoulder  which  was  performed  at  St. \nMary’s Regional Hospital in Russellville, Arkansas on April 7, 2022.  Following is a portion of \nthat  diagnostic  testing  report  authored  by  Dr.  Jeffrey  Hale  found  at  Claimant’s  Exhibit  1,  page \n16: \n  FINDINGS: \n  \n  Acromioclavicular joint and subacromial space:  Hypertrophy \n  and signal abnormality with some mild edema within the \n  joint and a moderate size inferior osteophyte which contacts \n  the supraspinatus around the musculotendinous junction area. \n \n  Glenohumeral joint and osseous structures:  Edema on each \n  side of the AC joint.  Glenohumeral joint appears intact. \n \n  Rotator cuff:  Mild signal abnormality within the distal  \n  infraspinatus tendon and at the insertion site.  Moderate \n  extensive intermediate intensity signal abnormalities in \n  the distal half of the supraspinatus tendon with a positive \n  fibers though there are intact fibers.  Trace bit of fluid \n  signal abnormality in the subacromial subdeltoid bursa. \n  Mild diminished subacromial space distance.  Subscapu- \n  laris appears normal. \n \n  Long biceps tendon:  Unremarkable. \n \n  Glenoid labrum:  Unremarkable. \n \n  IMPRESSION:  Subaspinatus tendon partial thickness tear. \n  2.  Infraspinatus tendinopathy. \n  3.  Marked AC joint arthrosis \n \n The  claimant  saw  Dr.  Cartwright  on  April  13,  2022.    Following  is  a  portion  of  that \nmedical record found at Claimant’s Exhibit 1, page 18: \n  William is a 53 year old gentleman referred by Dr. Kirkland \n  for evaluation of his left shoulder.  He reports left shoulder \n\nHolmes – H203628 \n \n \n-10- \n  pain.  He denies neck pain.  He denies left upper \n  extremity paresthesias.  He reports weakness in the \n  left shoulder.  He denies any history of dislocation. \n  He reports subacromial crepitus in the left shoulder \n  with motion of the left arm.  He reports pain in the \n  left shoulder with motion of the left arm overhead. \n  He reports nocturnal left shoulder pain and rotator \n  cuff nesting.  He has difficulty carrying and lifting \n  objects with the left upper extremity especially if the \n  load is held away from the body.  He reports a positive \n  milk jug sign.  He reports no significant improvement \n  after physical therapy.  He reports discomfort with \n  overhead throwing type motions.  He smokes daily \n  but is not a diabetic.  He is left-hand dominant.  He \n  denies any history of injury but feels that overuse \n  ConAgra may have contributed.  He was taken off \n  work a month ago by Dr. Kirkland. \n \n     *** \n  My impression clinically is that the patient’s left \n  shoulder suffers with a combination of issues which  \n  seem to include subacromial impingement, subacromial \n  bursitis, bicipital tendinitis, high-grade partial thickness \n  tearing of the supraspinatus, probable low grade partial \n  thickness tearing of the subscapularis, arthritis of the \n  acromioclavicular joint but I cannot rule out any labral \n  pathology given the guarding on examination. \n \n  His MRI revealed per the report (JH), partial thickness \n  tear of the supraspinatus, marked ACJ arthritis, and \n  tendinopathy of the infraspinatus.  My review of those \n  images suggests prominent arthritis of the AC joint, \n  subacromial impingement high grade partial thickness \n  tearing of the supraspinatus, degenerative anterior labral \n  tearing, biceps partial thickness tearing/tendinosis, partial \n  thickness tearing of the subscapularis, and what appears to \n  be a degenerative tear of the anterior aspect of the superior \n  labrum extending into the anterior labrum.  I would suggest \n  he consider arthroscopy given that he has tried therapy with \n  no benefit. \n \n  We completed pre-op for left shoulder arthroscopy.  I do  \n  believe that some of his shoulder pain may be emanating  \n  from his neck and I stressed to the patient that he should \n  return to see Dr. Kirkland about management of his neck \n\nHolmes – H203628 \n \n \n-11- \n  as this is not something I manage.  Notwithstanding, he \n  does have left shoulder pathology as well and I do think \n  he will benefit substantially from left shoulder surgery. \n  In all likelihood, however it will not result in complete \n  relief of pain as the shoulder recovering will likely not \n  improve whatever pain is emanating from his neck. \n \n On April 28, 2022 the claimant underwent surgery on his left shoulder at the hands of Dr. \nCartwright.    Following  is  a  portion  of  that  operative  report  found  at  Claimant’s  Exhibit,  pages \n22-24: \n  PRE-OP DIAGNOSIS:  LEFT shoulder internal derangement \n \n  POST-OP DIAGNOSIS: \n  Opioid Naïve – no opioid RX per PMP within the last 6 months \n    \n  Subacromial impingement of the LEFT shoulder \n \n  High grade partial thickness tearing of the supraspinatus of the \nLEFT shoulder \n \n  Low grade partial thickness tearing of the subscapularis of the \nLEFT   \n  \n  Bicipital tendonitis without obvious tendinosis or tearing LEFT \n      *** \n  PROCEDURE: \n  Arthroscopic anterior labral repair and capsulorraphy of the \n  LEFT shoulder \n \n  Arthroscopic rotator cuff repair of the SUPRASPINATUS \n  (superior rotator cuff) of the LEFT shoulder \n \n  Arthroscopic repair of a type 2 SLAP lesion of the LEFT \n  Shoulder \n \n  Arthroscopic extensive debridement of synovium, posterior \n  labrum, subscapularis, and subacromial bursa of the LEFT \n  shoulder \n \n  Arthroscopic lysis of the adhesions and manipulation under \n  Anesthesia of the  LEFT shoulder \n\nHolmes – H203628 \n \n \n-12- \n After  the  claimant’s  surgical  intervention  he  was  given  aftercare  including  physical \ntherapy.  The claimant was released to return to work on August 3, 2022 and returned to work for \nthe  respondent  employer  in  the  same  position.    At  the  time  of  the  hearing  in  this  matter  the \nclaimant was still employed in that position with the respondent employer.   \n The  claimant  has  alleged  a  compensable  gradual  onset  injury  to  his  left  shoulder  in  this \nmatter.    In  order  to  prove  a  compensable  gradual  onset  injury  to  his  left  shoulder  the  claimant \nmust  prove  (1)  that  the  injury  arose  out  of  and  in  the  course  of  his  employment;  (2)  that  the \ninjury caused internal or external physical harm to his body, which required medical services or \nresulted in death or disability; (3) that the injury was caused by rapid repetitive motion; (4) that \nthe injury was the major cause of the disability or need for treatment; and, (5) that the injury was \nestablished by medical evidence supported by objective findings.  \n Here, given the testimony of the claimant, it seems reasonable that the injury arose out of \nand  in  the  course  of  his  employment.    The  MRI  and  surgical  records  of  the  claimant  display \ninternal physical harm to the body, specifically the claimant’s left shoulder, by objective medical \nevidence.   However,  I do not believe the claimant can meet the  requirement in proving that the \ninjury  was  caused  by  rapid  repetitive  motion.   Malone  v.  Texarkana  Public  Schools,  333  Ark. \n343,  349-50,  969  S.W.  2d  644,  647  (1998);  Ark.  Code  Ann.  §11-9-102(5)(A)(ii)(a).      In \nanalyzing  whether  an  injury  is  caused  by  rapid  repetitive  motion,  the  standard  as  set  out  in \nMalone  is  a  two-pronged  test:    (1)    the  tasks  must  be  repetitive,  and  (2)  the  repetitive  motion \nmust  be  rapid.   Malone,  333  Ark.  at  350,  969  S.W.  2d  at  647.    As  a  threshold  issue,  the  tasks \nmust  be  repetitive,  or  the  rapidity  element  is  not  reached.   Id.,  969  S.W.  2d  at  647.    Arguably, \neven repetitive tasks and rapid work, standing alone, do not satisfy the definition; the repetitive \ntasks must be completed rapidly. Id., 969 S.W. 2d at 647-48. \n\nHolmes – H203628 \n \n \n-13- \n The  claimant  gave  clear  and  consistent  testimony  that  he  was  normally  tasked  with \nprocessing 12 pallets or blends on a normal work day and worked an eight-hour shift.  However, \nthe claimant also testified that he sometimes processed 16 or 18 pallets or blends during the work \nday, but would work 10 or 12-hour shifts.  The pallets or blends would be made up of 50-pound \nbags of spices that would normally total 1200 pounds, meaning the pallet or blend would contain \n24  50-pound  bags.    However,  the  claimant  would  process  some  pallets  or  blends  that  totaled \n2000  pounds  which  contained  40  50-pound  bags.    It  was  the  claimant’s  testimony  that  he  did \nmore 1200 pound pallets or blends than 2000 pound pallets or blends. \n At  the  hearing  in  this  matter  the  claimant  gave  direct  examination  testimony  that  he \nwould  usually  process  four  pallets  or  blends  per  hour.  Following  is  that  direct  examination \ntestimony: \n  Q Now, approximately how many pallets do you deliver \n  to your area each day? \n \n  A Well, we usually run – I can do four an hour. \n \n  Q Four pallets an hour? \n \n  A Yes. \n \n  Q And those pallets, do they range in weight from 1200 \n  to 2000? \n \n  A Uh-huh, 2000 pounds. \n \n  Q And each one of the bags that you’re lifting –  \n \n  A Are 50 pound bags; correct. \n \n  Q Does it matter what the product is if the bag weighs  \n  more or less? \n \n  A No, none of them weigh less. \n \n\nHolmes – H203628 \n \n \n-14- \n  Q         Do any of them weigh more? \n \n  A No. \n \n  Q So every bag all day long is 50 pounds? \n \n  A Fifty pounds; yes. \n \n This Administrative Law Judge questioned the claimant about his job duties and the type \nand  amount  of  pallets  or  blends  he  processes  on  a  daily  basis.    In  that  exchange  the  claimant \nagain asserted that he processes four pallets or blends per hour as follows: \n  Q How many pallets, and you may not know the answer \n  to this; and if you don’t, that’s fine.  I don’t want you to make \n  it up.  I want you to tell me if you know or if you don’t know. \n  Roughly, how many pallets a day weigh 1200 pounds and how \n  many pallets a day weigh 2000 pounds? \n \n  A I don’t know the answer, Your Honor. \n \n  Q Do you do more 1200 pallets than 2000 pallets? \n \n  A Yes, sir.  Usually when we do the 2000 pound batches, \n  we do them all at once. \n \n  Q And so do you do 2000 pound pallets every day? \n \n  A Every other day. \n \n  Q So do you do fewer of those than you do of the 1200 \n  pallets, 1200 pound pallets? \n \n  A Yes. \n \n  Q Now, I believe I heard your testimony right earlier that \n  you could do four blends –  \n \n  A An hour, yes, on that batch. \n \n  Q And how fast per – \n \n  A Four an hour.  I can do four an hour. \n \n\nHolmes – H203628 \n \n \n-15- \n  Q You can do four blends an hour? \n \n  A (Witness nods.) \n \n  Q And by doing a blend, that means that you leave the  \n  spice room that you’re in or leave the room where you mix, - \n \n  A Yeah, I go to get another one. \n \n It  appears  from  the  whole  of  the  claimant’s  testimony  that  he  on  more  days  than  not \nprocessed 12 pallets or blends during an eight-hour shift.   However, the claimant is also called \nupon to process 16 and 18 batches per day at times and can work 10 or 12-hour shifts.  Given the \nclaimant’s testimony that he can process four pallets or blends per hour, that would calculate into \nprocessing  12  pallets  or  blends  over  the  course  of  three  hours  in  an  eight-hour  work  day.    The \nclaimant  would  process  16  pallets  or  blends  during  a  10-hour  work  day  in  four  hours  and  18 \npallets  or  blends  in  a  12-hour  work  day  in  4.5  hours.    It  is  certain  that  the  claimant  gave \ntestimony that demonstrated he would be working at a rapid pace.  However, the threshold issue \nis  that  the  task  must  be  repetitive.    It  is  difficult  to  find  it  reasonable  that  some  operation  or \nmovement  of  the  body  is  repetitive  when  that  operation  or  movement  only  occurs  during  well \nless than half of the workday.   \n Given  a  normal  12  pallet  or  blend  processing  day  and  a  normal  eight-hour  shift,  the \nclaimant would only be performing those left shoulder operations or movements for 37.5% of the \nday.    Even  considering  two  15-minute  breaks  and  a  30-minute  lunchtime  the  claimant  would \nonly  be  performing  those  left  shoulder  operations  or  movements  for  42.8%  of  his  work  day.  \nWhile the claimant’s work was  certainly  rapid and intensive,  I do not believe it to be  repetitive \nunder the Arkansas Workers’ Compensation Act.   \n\nHolmes – H203628 \n \n \n-16- \n I  am  not  certain  what  the  claimant  did  for  the  remainder  of  his  work  day  for  the \nrespondent  employer,  but  I  do  believe  some  light  can  be  shed  on  it  by  Respondent’s  Exhibit  3.  \nRespondent’s Exhibit 3 is the oral deposition of the claimant taken on August 29, 2022.  In the \nexhibit to that deposition, a document titled “Work Smart Analysis” is found.  This is a five-page \ndocument that describes the claimant’s job duties.  On the first page of that document it describes \n12 essential functions, some of those functions were described by the  claimant but many others \nwere not.  After review of that document it appears that the claimant’s work activities did include \nwhat was described in his testimony, but also several other essential functions. \n The claimant was questioned on cross-examination about that document as follows: \n  Q You were asked questions by my law partner about \n  this paperwork when you were deposed.  Does that sound  \n  correct? \n \n  A That is correct. \n \n  Q And some of this is documentation about your job \n  description at Conagra; is that right? \n \n  A Yes, ma’am. \n \n  Q And all of that was accurate? \n \n  A Yes, ma’am. \n \n Here,  the  claimant  most  certainly  worked  rapidly  at  times,  but  is  unable  to  prove  by  a \npreponderance  of  the  evidence  that  his  work  was  repetitive  which  is  the  threshold  issue  in  a \ndetermination  of  whether  the  injury  was  caused  by  rapid  repetitive  motion.    As  such,  the \nclaimant  is  unable  to  meet  his  burden  and  prove  a  gradual  onset  injury  to  his  left  shoulder  that \nculminated on or about February 11, 2022. \n\nHolmes – H203628 \n \n \n-17- \n The  claimant  also  alternatively  argued  that  his  left  shoulder  difficulties  were  due  to  a \nspecific incident that occurred on February 11, 2022.  The claimant’s medical records submitted \ninto evidence do not support any specific incident.  The claimant’s left shoulder began to become \npainful  well  before  February  11,  2022,  and  the  claimant  does  not,  to  medical  providers  or  in \ntestimony  in  the  Commission,  relate  his  left  shoulder  problems  to  a  specific  event  of  any  kind.  \nIn cross-examination the claimant gave the following testimony: \n  Q You were also asked by my law partner, “Was there \n  any type of anything specific that happened in February?” \n  Your response was, “No, it just started hurting” and you \n  described it as a “throbbing hurting.”  Is that right? \n \n  A Yeah, throbbing. \n \nThe  claimant  is  unable  to  prove  by  a  preponderance  of  the  evidence  that  he  sustained  a \ncompensable specific injury to his left shoulder on February 11, 2022. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust  30,  2022,  and  contained  in  a  Pre-Hearing  Order  filed  September  13,  2022,  are  hereby \naccepted as fact. \n 2.   The claimant has failed to prove by a preponderance of the evidence that he sustained \na  compensable  gradual  onset  injury  to  his  left  shoulder  culminating  on  or  about  February  11, \n\nHolmes – H203628 \n \n \n-18- \n2022.    The  claimant  has  also  failed  to  prove  by  a  preponderance  of  the  evidence  that  he \nalternatively sustained a compensable specific incident injury to his left shoulder on February 11, \n2022. \n 3.   The claimant has failed to prove his entitlement to medical treatment. \n 4.   The claimant has failed to prove his entitlement to temporary total disability benefits \nfrom February 12, 2022 to August 3, 2022. \n 5.   The claimant has failed to prove that his attorney is entitled to an attorney’s fee in this \nmatter. \n 6.      The  respondents’  issue  of  lack  of  notice  as  a  defense  to  this  claim  is  moot  as  the \nclaimant  was  unable  to  prove  that  he  sustained  a  compensable  gradual  onset  or  compensable \nspecific injury on or about February 11, 2022. \n \n ORDER \n Pursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety.     \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":30690,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H203628 WILLIAM W. HOLMES, Employee CLAIMANT CONAGRA FOODS, INC., Employer RESPONDENT ACE AMERICAN INSURANCE CO./BROADSPIRE, Carrier/TPA RESPONDENT OPINION FILED JANUARY 31, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Russellville, Pope Co...","outcome":"denied","outcomeKeywords":["granted:1","denied:4"],"injuryKeywords":["shoulder","repetitive","back","rotator cuff","neck"],"fetchedAt":"2026-05-19T23:11:50.509Z"},{"id":"alj-H103280-2023-01-24","awccNumber":"H103280","decisionDate":"2023-01-24","decisionYear":2023,"opinionType":"alj","claimantName":"Sharon Bowles","employerName":"Saint Jean Industries","title":"BOWLES VS. SAINT JEAN INDUSTRIES AWCC# H103280 JANUARY 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BOWLES_SHARON_H103280_20230124.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BOWLES_SHARON_H103280_20230124.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H103280 \n \nSHARON BOWLES, EMPLOYEE       CLAIMANT \n \nSAINT JEAN INDUSTRIES, \nEMPLOYER               RESPONDENT  \n \nAMERISURE MUTUAL INSURANCE,  \nCARRIER/TPA             RESPONDENT    \n         \nOPINION FILED JANUARY 24, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski \nCounty, Arkansas, on January 17, 2023. \n \nClaimant  is  represented  by  Mr.  Kenneth  A.  Olsen,  Attorney-at-Law,  of  Bryant, \nArkansas. \n \nRespondents are represented by Ms. Karen H. McKinney, Attorney-at-Law,  of  Little \nRock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on January17, 2023, in Little Rock, \nArkansas,  on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nRule  099.13  of  the  Arkansas  Workers’  Compensation  Act  and  also  Ark. Code  Ann.  \n§ 11-9-702.  The claimant, through her attorney, waived her right of appearance by an \nemail the morning of the hearing and announced that there was no objection to the matter \nbeing dismissed without prejudice.  The claimant filed her prehearing questionnaire on \nJanuary  4,  2022,    and  prior  to  the  prehearing  conference  retained  an  attorney.        The \nrespondent requested a copy of the claimant’s medical on or about July 27, 2022, and \nwas advised that the attorney for the claimant had not received any as of that date.  The \nrespondents, who initially accepted the claim, filed a Motion to Dismiss on October 22, \n\nBOWLES – H103280 \n \n2 \n \n2022,  contending  that  the  claimant  had  failed  to  prosecute  her  claim  and  had  not \nrequested a hearing within the last six (6) months. \nThe respondent filed its Motion to Dismiss and a hearing was  held in Little Rock \non January 17, 2023.  The claimant waived her right of appearance as stated above and \nfurther stated by email that there was no objection to the matter being dismissed without \nprejudice. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice at this time. The \nfile is incorporated by reference in this matter.  \nIT IS SO ORDERED: \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2681,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H103280 SHARON BOWLES, EMPLOYEE CLAIMANT SAINT JEAN INDUSTRIES, EMPLOYER RESPONDENT AMERISURE MUTUAL INSURANCE, CARRIER/TPA RESPONDENT OPINION FILED JANUARY 24, 2023 Hearing before Administrative Law Judge James D. Kennedy in Little Rock, Pulaski County, Ar...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:11:44.215Z"},{"id":"alj-H009898-2023-01-24","awccNumber":"H009898","decisionDate":"2023-01-24","decisionYear":2023,"opinionType":"alj","claimantName":"Maria Shell","employerName":"Factory Connection, LLC","title":"SHELL VS. FACTORY CONNECTION, LLC AWCC# H009898 JANUARY 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SHELL_MARIA_H009898_20230124.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SHELL_MARIA_H009898_20230124.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H009898 \n \nMARIA SHELL, EMPLOYEE          CLAIMANT \n \nFACTORY CONNECTION, LLC, EMPLOYER             RESPONDENT \n \nTRAVELERS PROPERTY AND CASUALTY  \nOF AMERICA, CARRIER/TPA           RESPONDENT \n           \nOPINION FILED JANUARY 24, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy on January 18, 2023, in \nMountain Home, Baxter County, Arkansas. \n \nClaimant  is  represented  by  Mr.  Frederick S. “Rick”  Spencer,  Attorney-at-Law,  of \nMountain Home, Arkansas. \n \nRespondents are represented by their attorney, Mr. Brett Whitley, Attorney-at-Law, of \nLittle Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  in  the  above-styled  matter  on  January  18,  2023, in Mountain \nHome,  Arkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to  prosecute  pursuant  to \nArkansas   Code   Annotated   §11-9-702   and   Rule 099.13   of   the   Arkansas   Workers’ \nCompensation Act.  Prior to the hearing, and  after a full hearing involving different parties, \nthe  Commission  asked  Attorney  Spencer  if  he  planned  to  appear  at  a  Motion  to  Dismiss \nhearing  when he had already notified the Commission that the claimant no longer wanted to \npursue her claim.  He was allowed to waive his appearance but requested he be contacted if \nthe claimant did in fact show up at the scheduled time for the hearing.  Minutes before the \nscheduled time of the hearing, the claimant appeared and Mr. Spencer was then contacted \nby cell phone.  Claimant’s attorney talked to the claimant by phone and then announced to \nthe  Commission  that  the  claimant  had  confirmed  that  she  no  longer  wished  to  pursue  her \nclaim and he was again allowed to waive his personal appearance.  The claimant was also \nplaced under oath and she confirmed that she did not wish to pursue her claim. The claimant \n\nfiled an Arkansas Form-C, which was dated May 4, 2021, contending she had injured her left \nfoot while handing hangers down to an associate.  The respondents filed an Arkansas Form \nAR-2 on or about December the 7\nth\n or 8\nth\n, 2020, where they claimed that there was no injury.  \nAfter various actions by the parties, a second request for dismissal of the claim was made by \nletter, which was filed with the Commission on October 12, 2022.  \nAn  appropriate  notice  setting  this  matter  for  a  hearing  for  a  Motion  to  Dismiss  on \nJanuary 18, 2023, was provided to the claimant by both Certified and First-Class mail.  The \nclaimant  responded  and  notified  the  Commission  that  she  no  longer  wished  to  pursue  her \nclaim by an email dated November 14, 2022.  She also appeared at the hearing as described \nabove.  At the time of the hearing, Brett Whitley appeared on behalf of the respondents and \nasked that the matter be dismissed for lack of prosecution. \n After  a  review  of  the  record  as  a  whole,  to  include  all  evidence  properly  before  the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent,  the  attorney  for  the  claimant,  and  statements  under  oath  by  the  claimant,  it  is \nfound that this matter should be dismissed for failure to prosecute pursuant to Ark. Code Ann. \n§   11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation Act. \nORDER \n \n Pursuant to the above statement of the case, there is no alternative but to dismiss this \nclaim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":3650,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H009898 MARIA SHELL, EMPLOYEE CLAIMANT FACTORY CONNECTION, LLC, EMPLOYER RESPONDENT TRAVELERS PROPERTY AND CASUALTY OF AMERICA, CARRIER/TPA RESPONDENT OPINION FILED JANUARY 24, 2023 Hearing before Administrative Law Judge James D. Kennedy on January 18, 202...","outcome":"dismissed","outcomeKeywords":["dismissed:6"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:11:46.272Z"},{"id":"alj-H202790-2023-01-24","awccNumber":"H202790","decisionDate":"2023-01-24","decisionYear":2023,"opinionType":"alj","claimantName":"Bobby Zachary","employerName":"B & B Supply Stores, LLC","title":"ZACHARY VS. B & B SUPPLY STORES, LLC AWCC# H202790 JANUARY 24, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/ZACHARY_BOBBY_H202790_20230124.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ZACHARY_BOBBY_H202790_20230124.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H202790 \n \nBOBBY W. ZACHARY, EMPLOYEE         CLAIMANT \n \nB & B SUPPLY STORES, LLC, EMPLOYER             RESPONDENT \n \nACCIDENT FUND INSURANCE COMPANY OF AMERICA, \nCARRIER / TPA             RESPONDENT \n            \nOPINION FILED JANUARY 24, 2023 \n \nHearing before Administrative Law Judge James D. Kennedy on January 18, 2023, \nin Mountain Home, Baxter County, Arkansas. \n \nClaimant is pro se and failed to appear. \n \nRespondents are represented by their attorney, Mr. Brett Whitley, Attorney-at-Law, \nof Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on January 18, 2023, in Mountain \nHome, Arkansas, on respondent’s Motion to Dismiss for failure to prosecute pursuant to \nArkansas  Code  Annotated  §11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’ \nCompensation Act.  The claimant was pro se and failed to appear for the hearing.  The \nclaimant filed an Arkansas Form-C on April 11, 2022, contending that he had injured his \nback while loading heavy lumber on December 5, 2021, and consequently made several \nvisits  to  the  chiropractor.    The  respondents  filed  an  Arkansas  Form AR-1  on  April  19, \n2022, and an Arkansas Form AR-2, on May 17, 2022, where they provided that the claim \nwas not accepted as compensable.  No action occurred in the matter since the filing of \nthe  filing  of  the  Form AR-2  with  the  Division  of  Operations  and  Compliance  of  the \nArkansas Workers’ Compensation Commission.  A request for dismissal of the claim was \nmade by letter on October 31, 2022.  \n\nAn appropriate notice setting this matter for a hearing for a Motion to Dismiss on \nJanuary 18, 2023, was  provided to the claimant by both  Certified and  First-Class Mail.  \nThe claimant did not file a response and failed to appear on the hearing date in Mountain \nHome, Arkansas.  At the time of the hearing, Mr. Brett Whitley appeared on behalf of the \nrespondents and asked that the matter be dismissed for lack of prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission,  and  having  an  opportunity  to  hear  the  statements  of  the  attorney  for  the \nrespondent, I find that this matter should be dismissed for failure to prosecute pursuant \nto Ark. Code Ann. §11-9-702 and Rule 099.13 of the Arkansas Workers’ Compensation \nAct. \nORDER \n \n Pursuant to the above statement of the case, there is no alternative but to dismiss \nthis claim in its entirety, without prejudice, for failure to prosecute. \n IT IS SO ORDERED. \n \n      ____________________________ \n       JAMES D. KENNEDY \n       ADMINISTRATIVE LAW JUDGE","textLength":2715,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202790 BOBBY W. ZACHARY, EMPLOYEE CLAIMANT B & B SUPPLY STORES, LLC, EMPLOYER RESPONDENT ACCIDENT FUND INSURANCE COMPANY OF AMERICA, CARRIER / TPA RESPONDENT OPINION FILED JANUARY 24, 2023 Hearing before Administrative Law Judge James D. Kennedy on January...","outcome":"dismissed","outcomeKeywords":["dismissed:5"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:11:48.440Z"},{"id":"alj-H201972-2023-01-23","awccNumber":"H201972","decisionDate":"2023-01-23","decisionYear":2023,"opinionType":"alj","claimantName":"James Beauchamp","employerName":"Conagra Foods Packaged Foods LLC","title":"BEAUCHAMP VS. CONAGRA FOODS PACKAGED FOODS LLC AWCC# H201972 AMENDED JANUARY 23, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BEAUCHAMP_JAMES_H201972_20230123.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BEAUCHAMP_JAMES_H201972_20230123.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H201972 \n \nJAMES BEAUCHAMP, Employee                                                                              CLAIMANT \n \nCONAGRA FOODS PACKAGED FOODS LLC, Employer                              RESPONDENT \n \nBROADSPIRE SERVICES INC., Carrier                                                              RESPONDENT \n \n \n AMENDED OPINION FILED JANUARY 23, 2023 \n \n \nCase submitted on the record  before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in \nSpringdale, Washington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On  November  10,  2022,  the  above  captioned  claim  came  on  for  hearing  at  Springdale, \nArkansas.  A pre-hearing conference was conducted on September 15, 2022, and a pre-hearing order \nwas filed on that same date.  A copy of the prehearing order has been marked as Commission’s Exhibit \nNo.1 and is made part of the record without objection. \n At the prehearing conference the parties agreed to the following stipulations: \n1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n2.         The employee/employer/carrier relationship existed on January 4, 2022. \n3.         The respondents have controverted the claim regarding claimant’s right hip and pelvis. \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n           1.  Whether  claimant  sustained  a  compensable  injury  on  January  4,  2022,  regarding  his \n\nBeauchamp-H201972 \n \n2 \n \nright hip and pelvis. \n           2. If compensable, whether claimant is entitled to temporary total disability benefits, and \nmedical benefits. \n            3. Compensation rate. \n            4.   Attorney fees. \n All other issues are reserved by the parties. \n  The claimant contends that “he is entitled to medical treatment for his right hip and \npelvic fractures in addition to treatment respondents are providing for his left hip. Claimant contends \nhe  is  entitled  to  temporary  total  disability  benefits  from  the  date  last  worked  to  a  date  yet  to  be \ndetermined. The claimant reserves all other issues.” \n The respondents contend that “claimant did not suffer a right hip injury on or about January \n4, 2022. Respondents further contend that in the event compensability is found, the medical records \ndo not support entitlement to medical treatment or indemnity benefits for the right hip.” \n From  a  review  of  the  record  as  a  whole,  including  medical  reports,  documents,  and  other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of the \nclaimant and to observe his demeanor, the following findings of fact and conclusions of law are made \nin accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nFebruary 15, 2022 and contained in a pre-hearing order filed that same date are hereby accepted as \nfact.  \n 2.  Claimant has met his burden of proving that he suffered a compensable injury to his right \nhip and pelvis on January 5, 2022. \n\nBeauchamp-H01972 \n3 \n \n \n 3.      Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical  treatment \nprovided in connection with claimant's compensable injuries. \n 4.   Claimant is entitled to temporary total disability benefits beginning  January 4, 2022, the \ndate of his injury, less any payments he received for working light duty before February 17, 2022, and \nless  any  short-term  disability  payments  claimant  received  through  a  plan  paid  for  solely  by  his \nemployer. \n5. Respondent has controverted claimant's entitlement to all unpaid indemnity benefits. \n FACTUAL BACKGROUND \n At the hearing, the parties advised they would attempt to reach an agreement on claimant’s \naverage  weekly  wage  and  advise  me  if  they  did  so.    After  the  hearing,  the  parties  stipulated  to  an \naverage weekly wage of $925.36, making the temporary total disability rate $617.00 per week.   \nHEARING TESTIMONY \n \n Claimant had been employed with Con-Agra for twenty-five years when on January 4, 2022, \nhe  tripped  and  fell  on  his  left  hip  and  knee.  He  was  immediately  taken  to  Arkansas  Occupational \nMedicine Services where he was examined by physician assistant, Daniel Nicholas. Claimant said he \nwas bruised from his left knee up to his hip. As the bruising went away, claimant stated he was going \nto therapy and his right side was hurting more than his left, then the pain went completely across his \nlower back. \n Claimant saw a couple of orthopedic physicians, Dr. Mark Allard and Dr. Matthew Coker, but \ndid not receive relief from them. He also saw his family doctor, Joseph O’Connell. Dr. O’Connell \nprescribed Oxycodone for claimant and ordered an MRI. He later saw Dr. Christopher Dougherty \nwho ordered aqua therapy. \n Claimant testified that following his fall, he has had difficulties both walking or sitting for any \n\nBeauchamp-H201972 \n \n4 \n \nextended length of time. He first used crutches, but those did not help and now uses a walker. Claimant \nsaid he could not work at Con-Agra because he walked about twelve miles a day there during a ten-\nto-twelve-hour  shift  and  he  could  not  do  that.  He  did  some  light  duty  but  eventually  his  doctor \nremoved him from work entirely. \n Claimant  said  when  he  went  shopping  with  his  wife  on  the  weekend,  he  used  a  buggy  but \nthought that was embarrassing. He now uses his walker but must take frequent rest breaks. Claimant \nsaid he tries to help around the house but is limited to five to fifteen minutes at a time. Claimant stated \nthat he needs help putting his shoes and socks on and getting in and out of the bathtub. \n Claimant  disputed  what  nurse  practitioner  Daniel  Nicholas  had  in  his  medical  records  that \nupon his examination of claimant’s right hip, there was no bruising, swelling, and a normal range of \nmotion.  \n On  cross-examination,  respondent  asked  claimant  about  his  various  statements  about  the \nonset of his pain in his right hip.  Claimant was shown the Employee’s Notice of Injury that he filled \nout on January 6, 2022, which mentioned an injury only to his left hip and left knee, and he verified \nthat is what he reported at the time of the fall.  During his deposition, claimant said he first experienced \nright hip pain in therapy at Arkansas Occupational Health. Claimant was asked about the therapist’s \nrecord on February 1, 2022 that recorded he was sore on a Sunday and the right hip had started hurting \nthat day. Claimant conceded that he had not been at physical therapy on Sunday. Claimant was shown \nhis deposition testimony where he stated that the right hip discomfort started before therapy. Claimant \nwas then asked about his deposition testimony where he said the right hip pain started while doing \nlight  duty  at  Con-Agra,  but  he  did  not  report  it  to  anyone  at  Con-Agra.  He  also  thought  that  the \ncrutches he was using may have caused his right hip pain. Although his medical records said that he \nhad gone shopping with his wife and three-year-old grandson, claimant denied that his grandson had \n\nBeauchamp-H01972 \n5 \n \n \nbeen shopping with him since he was hurt. Claimant responded that he had seen his grandson but had \nnot  gone  shopping  with  him.  He  did  not  know  how  the  entry  was  placed  in  his  records  that  said \notherwise.  \n Claimant  was  asked  about  a  notation  in  his  therapy  records  that  on  January  27,  2022  and \nFebruary 1, 2022 it was noted that he had a contusion on his right hip. Claimant stated that he had \nnever had a bruise on his right hip and that entry in his records was not true. Claimant was also asked \nabout his testimony in his deposition where he quoted Dr. Allard as saying “Your left hip is fine. You \nare fine to go back to work.” Claimant said he did not remember being released to go back to work. \nClaimant said the pain in his right hip began after the bruising had gone away from his left hip, and \nhe started feeling pain all the way across; claimant believed that was approximately three weeks after \nthe injury to his left hip. Claimant had no explanation as to why the physical therapist made this entry \non February 1, 2022, which stated that the diagnosis was “contusion of right hip”. \n On redirect examination, claimant said that he had not had an incident after his fall at Con-\nAgra where he had injured any part of his body. He believed the pain in the right hip was a gradual \nthing.  \n Claimant was then shown testimony from his deposition where he was asked:  \nQ: (BY MR. PARRISH): Correct me if I am saying this wrong. It is my \nunderstanding that you were saying the right hip pain started in therapy? \nA:  Yeah. Well no. It was before the therapy because I couldn’t get up on \nthe bed. I could get up on my left side, but I couldn’t get there on my right \nside. I had to go to the other side of the bed to get on top of it because I \ncouldn’t get up on the right side at all... \n \nQ: OK. So, let’s circle back. When I asked you earlier what you were doing \nwhen the right hip pain stated, you told me you were in therapy, but now \nyou say it was before therapy even started, right? \nA: I don’t remember. I am not trying to lie to you. I just don’t really \nremember when it started. All I know is it was very painful. \n \n Claimant recalled telling the physical therapist at some point his left hip was feeling better and \n\nBeauchamp-H201972 \n \n6 \n \nit was the right hip that was bothering him. [This is reflected in the February 1, 2022, record from the \nphysical therapist, reviewed below.] Claimant was then shown this portion of his deposition testimony: \nQ:  (BY  MR.  PARRISH):  Have  you  told  any  of  your  doctors  anything \nabout shopping with your wife and having onset of right sided problems?  \nA: I went shopping with my wife. I used my walker and I get in one of \nthem little buggies and every little bump I hit it hurts. \n \nQ: My question was did you make any statement to your doctors about \nshopping with your wife at the time your right sided problems started? \nA: I don’t think so. And from shopping with my wife, I don’t carry the \ngroceries in. She won’t let me do nothing. \n \nQ: So how do you maintain that your right hip pain that you were telling \nme about is related to falling on your left side. \nA. Because I broke my pelvis. \n \nQ. You maintain that the pelvis break was related to the fall? \nA. I know it is because I haven’t fallen since. \n \n On recross examination, the following exchange took place: \nQ: (BY MR. PARRISH) Sir you were asked about your testimony at one \npoint  in  the  deposition  where  you  said  your  right  hip  problems  started \nbefore therapy. That is what your attorney just directed you to. Do you \nremember that? \nA: Okay yes. \n \nQ: Okay you agree with me that I am not making this up that you  said \nyour problems started in therapy at one point in the depo? \nA: “I probably did” \n \nQ:  And at one point you said it started at home while doing therapy? \nA: That could be too. I have said it happened in therapy and I meant at \nhome, but I don’t know where it started, or when it started, okay? I don’t \nknow how it started. \n \nQ:  You  agree  you  have  given  five  if  not  six  different  explanations  for \nwhen the right hip problems started? \nA: “I have given you five or six answers to what I think might have caused \nit. \n \nQ: Okay? \nA: I don’t know.  \n \n\nBeauchamp-H01972 \n7 \n \n \n           Claimant again said he had no explanation of the documentation of the right hip contusion in \nhis medical records at the end of January. \n On redirect examination claimant said he had no problems with his right hip before he fell at \nCon-Agra nor with his left hip. He first reported the pain in his right hip to the therapist because he \ndidn’t see the doctors after he first noticed it.  \n On recross examination, claimant did not deny that there was an examination of his right hip, \nbut he was disputing what was written regarding that examination. He said he didn’t know if there was \nan examination as documented in the records from the Arkansas Occupational Health. \n On redirect examination, claimant said he didn’t think that the nurse practitioner examining \nhim tried to  move his right  leg, but he didn’t remember. He was concerned with his left leg at the \ntime. He eventually said that P.A. Nicholas probably moved his leg around on the first visit, but he \ndidn’t really remember; on the second visit, he recalled his left leg was moved but he did not remember \nif his right leg had been moved around. \n REVIEW OF MEDICAL RECORDS EXHIBITS \n             When Claimant fell on January 4, 2022, he was taken to the Arkansas Occupational Medicines \nServices and examined by Daniel Nicholas, P.A. P.A. Nicholas continued to follow claimant for the \nnext couple of weeks and there was no mention of any pain in claimant’s right hip. On January 27, \n2022 claimant began a course of physical therapy at NWA Physical Ability Testing Center (NWA). \nThe first record relates the history claimant gave: “His feet became caught in some pallet strapping \ncausing him to fall, hitting his left knee and left hip on the floor. The chief complaint was pain in the \nleft hip, difficulty walking.” The physical therapy examination on that date showed claimant had good \nactive range of motion as well as passive range of motion on his right hip, but markedly less range of \n\nBeauchamp-H201972 \n \n8 \n \nmotion on his left hip.\n1\n On February 1, 2022, the subjective portion of the report states “James states \nhe was really sore on Sunday and it’s the right hip hurting today, along with the middle low back. He \ntells me that his left  hip is doing fine. He mentioned the pain management and asked if he needed \nthat.” Brandon Peyton, the physical therapist, recorded under the assessment portion of the report \n“He says his pain is more on the right side today and the low back. He tells me hip ER and IR caused \na little pain in the mid low back. He may have overdone the HEP this weekend so we talked about \nnot doing more than he can handle.” From there, claimant’s complaints are largely with his right hip \nand right lower back. In summary, the physical therapy records from January 27, 2022, showed no \nproblem on claimant’s right hip, but on February 1, 2022, the right hip became the primary complaint.  \n Claimant returned to Arkansas Occupational Medicine Services on February 8, 2022, and again \nsaw physician assistant Nicholas. Consistent with what he said at physical therapy, claimant said his \nleft hip was getting better but his right hip was getting worse. PA Nicholas recorded in the comments \non the history of the present illness “James has significant improvement in his left hip. He has \ndeveloped severe right hip pain with no specific injury.”   \n Claimant testified he went to see his family physician when he felt he was not getting better \nand saw Dr. Joseph O’Connell on February 9, 2022. Dr. O’Connell believed that claimant needed a \npelvic x-ray and administered therapeutic injections of Toradol and Betamethasone. \n Dr. Mark Allard at Northwest Physicians was the next doctor to examine claimant. Dr. Allard \nordered  x-rays of claimant’s right hip and found “radiographic findings: evidence of osteoarticular \nabnormality; he has got some early osteoarthritis of the right hip with some joint space narrowing and \nosteophyte formation. None on the left side. No evidence of fracture.” Dr. Allard assessed claimant \n \n1\n As discussed below, I have concluded that the diagnosis portion of the January 27, 2022, record was a coding error \nwhich resulted in an entry of a contusion of the right hip when no such contusion existed. \n\nBeauchamp-H01972 \n9 \n \n \nwith a lumbar back strain and recommended that an MRI be performed. After reviewing only the x-\nray, Dr. Allard opined “it is my medical opinion this is likely due to overuse two weeks ago and is not \ndirectly related to his work-related injury from six weeks ago.” Dr. Allard did not schedule another \nappointment for claimant but said he could return as needed.  \n When claimant failed to make much progress, on February 23, 2022, he returned to see Dr. \nO’Connell. Dr. O’Connell saw claimant again on both March 8, 2022 and April 5, 2022.  He ordered \nan MRI, which was performed on April 13. The impression from the MRI was: \n“acute or subacute, mildly displaced fractures of the left superior and \nleft inferior pubic rami. Nondisplaced acute or subacute fracture of the \nright  sacral  ala.  No  fracture  of  either  proximal  femora.  Findings  of \nfemoroacetabular impingement of each hip, a chronic finding. On this \nMRI of the right hip, abnormal signal in the superior aspect of the right \nacetabular labrum is consistent with chronic degeneration of the labrum \nrelated to the femoroacetabular impingement.”  \n \n  Claimant  saw  Dr.  Matthew  Coker  on  April  28,  2022.  Dr.  Coker  recited  the  history  to  that \npoint and reviewed the findings from the MRI.  He recorded claimant “was also subsequently found \nto have a right sacral alae fracture. He did develop some right hip pain, but this was not associated \nwith the fall on the left side. It started to bother him a few weeks later. The left side is a work-related \ninjury, but the right side is not considered a work-related injury.”  \n Claimant  was  admitted  to  Encompass  Health  Rehabilitation  Hospital  on  June  15,  2022  for \ninpatient physical therapy. It is unclear who the referring physician was for this course of rehabilitation, \nand nothing about it provided useful information regarding the issues in this case.  \n Following his discharge from Encompass, claimant began seeing Dr. Christopher Dougherty \non June 22, 2022. In the assessment and plan following the August 3, 2022 visit, Dr. Dougherty stated \nthat a CT scan showed “a left superior/inferior pubic ramus fracture and a right fracture of the aspect \nsacrum.” Dr. Dougherty directly attributed the fractures to claimant’s fall at work and stated the \n\nBeauchamp-H201972 \n \n10 \n \nclaimant was not able to do even sedentary work due to the  factures. He referred claimant to aqua \ntherapy at Trinity Rehabilitation, where claimant completed all physical therapy sessions which were \nallowed by his insurance company. The physical therapist, Thomas Curtner, said “his injuries are a \nresult  of  a  work-related  incident,  and  he  will  be  transitioning  his  plan  of  care  to  be  covered  by  his \nemployer’s workers’ compensation insurance.” Claimant’s therapy included treatment for both his left \nand right side.  \n The final record introduced was a letter from Dr. O’Connell dated November 2, 2022.  Dr. \nO’Connell stated that he has been claimant’s primary care physician for over ten years and said \nclaimant “has never had issues with his hips or pelvis.” \nADJUDICATION \n \nThe issue in this case is if claimant’s right hip injury is related to his admittedly compensable \ninjury  to  his  left  hip  which  occurred  in  a  fall  on  January  4,  2022.  While claimant’s testimony was \nsomewhat confusing on the onset of his right hip pain, in reviewing the entire record, I find that he \nhas shown by a preponderance of the evidence that his right hip injury was incurred during that fall.  \nRespondent pointed out the various answers claimant gave in his deposition testimony and in \nthe  medical  records  as  to  when  the  pain  in  his  right  hip  began.  Claimant  conceded  that  at  various \ntimes, he placed the onset of the issues with his right hip before he started therapy, due to the use of \ncrutches, while working light duty, as the result of a therapy session and on a Sunday when he didn’t \nhave therapy. He denied an entry in a doctor’s report that he had gone shopping with his wife and \ngrandson and couldn’t walk the next day.  When pressed on the different answers as to when and how \nhis right hip started hurting, claimant said he had given those answers as possible causes, because he \ndidn’t know what the cause was or just when the pain in  his right hip started. His efforts to give a \ncause for how and when the right hip pain started caused more confusion than clarity, but I do not \n\nBeauchamp-H01972 \n11 \n \n \nfind those answers were given in an effort to deceive respondent or this court.  \nA review of the physical therapy records gives the likely answer as to when the right hip began \nto cause claimant a problem. Respondent asked claimant about the entries on the February 1, 2022. \nreport  from  NWA, which is the first record regarding an issue  with claimant’s right hip.  The \nquestioning  focused  on  why  claimant  disputed  having  a  contusion  on  his  right  hip  on  that  day.  \nHowever, claimant was not asked about the NWA record of January 27, 2022, in which claimant was \nnot  complaining  of  any  issues  with  his  right  hip,  but  rather  was  treated  for  left  hip  discomfort.   I \nbelieve it would be unusual for a person doing physical therapy to be asked to disrobe for an inspection \nof a hip that had already been examined by the referring physician’s assistant.  It was also odd that \nevery  diagnosis—even  the  fifth  one—continued  to  refer  to  the  visit  as  an  initial  encounter.   I  am \nconvinced the entry for the right hip on the first visit was a coding error and was not corrected during \nclaimant’s course of treatment with NWA.  Each  visit  was  coded  with  S70.01XA,  the  code  for  a \n“contusion of the right hip, initial encounter,” but claimant did not complain of any issues with his \nright    hip    on    his    first    visit    to    NWA.    (See https://icdlist.com/icd-10/S70.01XA    and \nhttps://icdlist.com/icd-10/S70.02XA for the medical codes for contusions to the right and left hip, \ninitial encounter, respectively.) \nAs  such,  I  find claimant’s testimony that he did not have bruising on his right hip  to  be \ncredible, and the physical therapy entries that reflected the presence of a contusion on his right hip \nwas  a  mistake  made  by  someone  at  NWA  in  coding  the  first  visit.  That  mistake  led  respondent  to \nbelieve claimant had a contusion on his right hip when none existed.  \nI also noted that there were no radiograph tests other than X-rays made of claimant’s right hip \nbefore April 13, 2022.  X-rays alone frequently do not show the type of sacral fracture that can be \n\nBeauchamp-H201972 \n \n12 \n \nseen by an MRI.\n2\n As that was all Dr. Allard ordered, I give no weight to his opinion that the condition \nhe saw on February 17, 2022, was “not directly related to his work-related injury from 6 weeks ago.”   \n Dr. Coker had the benefit of the MRI results and recognized the right sacral fracture.   The \nwording of his opinion is a bit vague as it relates to the connection between claimant’s fall on his left \nhip and the pain in his right hip: “The left side is a work-related  injury  but  the  right  side  is  not \nconsidered  a  work-related injury.” (Emphasis  added)  It  is  unclear  if  the  right  hip  issues  were  not \nconsidered a  work-related  injury  by  Dr.  Coker,  or  not  considered  to  be  such by  the workers’ \ncompensation carrier.  It is evident Dr. Coker’s staff had been contacted by the adjuster for the carrier \nprior to examining claimant on April 28, 2022,  because the contact information for that adjuster is \nprovided under the heading “Patient’s Care Team.”  From  this  wording,  I cannot  tell  if  Dr.  Coker \nmade an independent evaluation on whether the right hip injury was related to the fall, or recited what \nhe had been told by the carrier about a right hip claim.    \n I am most persuaded by Dr. Dougherty’s unequivocal statement in his August 8, 2022 record.  \nAfter noting fractures on claimant’s left and right side, he stated “All of these fractures are directly \nrelated to his fall at work.” The Arkansas Supreme Court in Wal-Mart Stores, Inc. v. VanWagner, 337 \nArk. 443, 447, 990 S.W.2d 522, 524 (1999) stated \"The plethora of possible causes for work-related \ninjuries includes many that can be established by common-sense observation and deduction.”  Relating \na fracture on the right side of claimant’s hip from a violent fall on his left side does  not  require \nspeculation or guesswork; that claimant was initially focused on the damage to his bruised left side is \nnot hard to understand.  Any of the various possibilities claimant put forward—or a combination of \n \n2\n See SACRAL FRACTURES: CURRENT STRATEGIES IN DIAGNOSIS AND MANAGEMENT \nhttps://pubmed.ncbi.nlm.nih.gov/19824583/:  “While displaced fractures can be easily diagnosed on high quality \nplain radiographs, nondisplaced or transverse fracture patterns may be difficult to diagnose without a computed \ntomography scan. Once identified, correct classification of a sacral fracture can facilitate ideal treatment strategies.”  \n\nBeauchamp-H01972 \n13 \n \n \nthem—could have caused the fractures on the right side to become symptomatic.  Dr. Dougherty’s \nattribution of the right sacral ala fracture to the January 4, 2022, fall is consistent with the testimony \nand  with  the  radiographic  evidence  from  April  13,  2022  through  August  8,  2022.    As  such,  I  find \nclaimant has proven by a preponderance of the evidence his right hip and pelvis injury is compensable.\n3\n   \n Having decided in claimant’s favor on the issue of compensability, I turn now to the medical \nand  indemnity benefits award. I am convinced that all of claimant’s medical treatment  has  been \nreasonable and necessary.  It is evident that he did not receive appropriate care early in the  process \nand  was  reasonable  in  going  to  his  own  doctor to  seek  the  treatment  he  was  not  provided  by \nrespondent.  He is entitled to reimbursement for any out-of-pocket medical expenses he incurred. \n I further find that claimant has not been able to work since he last performed light duty work \nfor Con-Agra.  Dr. Allard removed him from work on February 17, 2022, and I did not find that any \nphysician  returned  him  to  work  at  even  light  duty  after  that  time.    I  find  claimant  is  entitled  to \ntemporary  total  disability  benefits  from  the  last  day  he  worked  for  Con-Agra  until  the  date  of  the \nhearing.\n4\n Further, as claimant testified that the premium for his short-term disability was paid solely \nby  his  employer,  respondent  is  entitled  to  a  credit  for  all  short-term  disability  payments  made  to \nclaimant as provided by Ark. Code. Ann. §11-9-411.\n5\n \n \n \n \n \n \n3\n  While  I  was  asked  to  decide  the  compensability  of  the  right  hip  injury,  it  should be  noted  that  claimant  received \ntreatment from Encompass, Dr. Dougherty, and Trinity Rehabilitation for the injury to his left hip during 2022.  So \nthere is no confusion, my finding is that the pelvic injuries—both sides-- are compensable and presently disabling.  \n4\n The precise day claimant ceased working light duty was not provided during the hearing; during the discussion \nbefore testimony began, respondent stated that claimant testified at his deposition that his light duty ended on \nFebruary 12, 2022.   Respondent should provide the payroll records to claimant to clarify the last day worked. \n5\n Claimant drew $5,000.00 in short-term disability benefits. (R NME. 7) \n\nBeauchamp-H201972 \n \n14 \n \nORDER \n \n Respondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nAll issues not addressed herein are expressly reserved under the Act. \nRespondent is responsible for paying the court reporter her charges for preparation of the \ntranscript in the amount of $ 795.95 \nIT IS SO ORDERED. \n \n \n      _____________________________ \n        JOSEPH C. SELF \n       ADMINISTRATIVE LAW JUDGE","textLength":28623,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201972 JAMES BEAUCHAMP, Employee CLAIMANT CONAGRA FOODS PACKAGED FOODS LLC, Employer RESPONDENT BROADSPIRE SERVICES INC., Carrier RESPONDENT AMENDED OPINION FILED JANUARY 23, 2023 Case submitted on the record before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF ...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["hip","knee","back","fracture","lumbar","strain"],"fetchedAt":"2026-05-19T23:11:42.152Z"},{"id":"alj-H201787-2023-01-19","awccNumber":"H201787","decisionDate":"2023-01-19","decisionYear":2023,"opinionType":"alj","claimantName":"Billy Bennett","employerName":"Tyson Poultry, Inc","title":"BENNETT VS. TYSON POULTRY, INC. AWCC# H201787 AMENDED JANUARY 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BENNETT_BILLY_H201787_20230119.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BENNETT_BILLY_H201787_20230119.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H201787 \n \nBILLY B. BENNETT,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nTYSON POULTRY, INC., \nEMPLOYER                                                                                                         RESPONDENT \n \nTYSON POULTRY, INC./ \nTYNET CORPORATION, \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \nAMENDED OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED JANUARY 19, 2023 \n \nHearing conducted on Wednesday, January 11, 2023, before the Arkansas Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, \nin Little Rock, Pulaski County, Arkansas. \n \nThe claimant, Mr. Billy B. Bennett, pro se, of Nashville, Howard County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Lauren Scroggins, Roberts Law Firm, Little \nRock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \nA  hearing  was  conducted  on  Wednesday,  January  11,  2023,  to  determine  whether  this \nclaim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) \n(2019 Lexis Replacement) and Commission Rule 099.13 (2022 Lexis Replacement). \nThe respondents filed a motion to dismiss with the Commission on November 14, 2022, \nrequesting  this  claim  be  dismissed  for  lack  of  prosecution.  Pursuant  to  the  applicable  law,  the \nclaimant was mailed a copy of the respondents’ motion to dismiss and the subject hearing notice \nin  advance  of  the  hearing  which  he  received  on  November  21,  2022.  (Commission  Exhibit  1). \nThereafter, the claimant failed and/or refused to either respond to the respondents’ motion in any \nway, or to appear at the subject hearing.  \n\nBilly B. Bennett, AWCC No. H201787 \n \n2 \n \nThe  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \nConsistent with Ark. Code Ann.§ 11-9-702(a)(4), as well as our court of appeals’ ruling in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim at this time. \nTherefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, I hereby make the following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having  been  mailed due and legal notice of both the respondents’ \nmotion  and  the  subject  hearing  notice,  the  claimant  failed  and/or  refused  to \nrespond to the motion in any way and failed and/or refused to appear at the subject \nhearing.  Therefore,  the  claimant  has  waived  his  right  to  a  hearing  on  the \nrespondents’ motion to dismiss without prejudice. \n \n3. The claimant has to date failed and/or refused to either request a hearing \nwithin the last six (6) months, and he has failed and/or refused to take any \naction(s) to prosecute his claim. \n \n4. Therefore, the respondents’ motion to dismiss without prejudice filed on \nNovember 14, 2022, is GRANTED; and this claim hereby is dismissed without \nprejudice to its refiling pursuant to the deadlines prescribed by Ark. Code Ann. § \n11-9-702(a) and (b), and Commission Rule 099.13. \n \nThis  Order  shall  not  be  construed  to  prohibit  the  claimant,  his  attorney,  any  attorney  he \nmay retain in the future, or anyone acting legally and, on his behalf, from refiling the claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n\nBilly B. Bennett, AWCC No. H201787 \n \n3 \n \nThe respondents hereby are ordered to pay the court reporter’s invoice within twenty (20) \ndays of its receipt thereof. \n     IT IS SO ORDERED. \n                                                                     \n____________________________                                                                      \n                                                                        Mike Pickens \n                                                                         Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":4873,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201787 BILLY B. BENNETT, EMPLOYEE CLAIMANT TYSON POULTRY, INC., EMPLOYER RESPONDENT TYSON POULTRY, INC./ TYNET CORPORATION, CARRIER/TPA RESPONDENT AMENDED OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED JANUARY 19, 2023 Hearing conducted on Wednesday,...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:11:35.878Z"},{"id":"alj-H206191-2023-01-19","awccNumber":"H206191","decisionDate":"2023-01-19","decisionYear":2023,"opinionType":"alj","claimantName":"Alan Harden","employerName":"Potlatchdeltic Corp","title":"HARDEN VS. POTLATCHDELTIC CORP. AWCC# H206191 AMENDED JANUARY 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/HARDEN_ALAN_H206191_20230119.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"HARDEN_ALAN_H206191_20230119.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H206191 \n \nALAN HARDEN,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nPOTLATCHDELTIC CORP., \nEMPLOYER                                                                                                         RESPONDENT \n \nSENTRY CASUALTY INS. CO./ \nSENTRY INSURANCE CO., \nCARRIER/TPA                                                                                             RESPONDENT \n                                                                                                                     \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED JANUARY 19, 2023 \n \nHearing conducted on Wednesday, January 18, 2023, before the Arkansas Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, \nin Little Rock, Pulaski County, Arkansas. \n \nThe claimant, Mr. Alan Harden, pro se, of Waldo, Columbia County, Arkansas, failed and/or \nrefused to appear at the hearing. \n \nThe respondents were represented by the Honorable Jarrod S. Parrish, Worley, Wood & Parrish, \nLittle Rock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n     A hearing  was conducted on Wednesday, January 18, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2019 \nLexis Replacement) and Commission Rule 099.13 (2022 Lexis Replacement). \n     The  respondents  filed  a  motion  to  dismiss  with  the  Commission  on  November  18,  2022, \nrequesting  this  claim  be  dismissed  for  lack  of  prosecution.  Pursuant  to  the  applicable  law,  the \nclaimant was mailed a copy of the respondents’ motion to dismiss and the subject hearing notice \nin advance of the hearing to his last known address on two (2) separate dates: first, on November \n18, 2022, and second, on December 13, 2022, via the United States Postal Service (USPS), First \nClass  Mail,  Return  Receipt  Requested.  Thereafter,  the  claimant  failed  and/or  refused  to  either \n\nAlan Harden, AWCC No. H206191 \n \n2 \n \nrespond to the respondents’ motion in any way, or to appear at the subject hearing.  In  fact,  the \nrespondents’ advised the claimant has returned to work. \n     The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n     Consistent  with Ark.  Code  Ann.§  11-9-702(a)(4),  as  well  as  our  court  of  appeals’  ruling  in \nDillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim at this time. \n     Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After  having  been  mailed due and legal  notice of both  the respondents’ motion  and the \nsubject hearing notice on two (2) separate occasions, the claimant failed and/or refused to \nrespond to the motion in any way, and failed and/or refused to appear at the subject hearing. \nTherefore, the claimant has waived his right to a hearing on the respondents’ motion to \ndismiss without prejudice. \n \n3. The claimant has to date failed and/or refused to request a hearing (although it has not yet \nbeen six (6) months since his Form AR-C was filed), and he has failed and/or refused to \ntake any action(s) to prosecute his claim. \n \n4. Therefore, the respondents’ motion to  dismiss  without  prejudice  filed  on  November  18, \n2022, is GRANTED; and this claim hereby is dismissed without prejudice to its refiling \npursuant to the deadlines prescribed by Ark. Code Ann. Section 11-9-702(a) and (b), and \nCommission Rule 099.13. \n \n\nAlan Harden, AWCC No. H206191 \n \n3 \n \n     This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf, from refiling the claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n     The respondents hereby are ordered to pay the court reporter’s invoice within twenty (20) \ndays of its receipt thereof. \n     IT IS SO ORDERED. \n                                                                     \n____________________________                                                                      \n                                                                        Mike Pickens \n                                                                         Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5172,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H206191 ALAN HARDEN, EMPLOYEE CLAIMANT POTLATCHDELTIC CORP., EMPLOYER RESPONDENT SENTRY CASUALTY INS. CO./ SENTRY INSURANCE CO., CARRIER/TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED JANUARY 19, 2023 Hearing conducted on Wednesday, Jan...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:11:37.941Z"},{"id":"alj-H103187-2023-01-19","awccNumber":"H103187","decisionDate":"2023-01-19","decisionYear":2023,"opinionType":"alj","claimantName":"Andrea Woods","employerName":"Pulaski County Special School Dist","title":"WOODS VS. PULASKI COUNTY SPECIAL SCHOOL DIST. AWCC# H103187 AMENDED JANUARY 19, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WOODS_ANDREA_H103187_20230119.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WOODS_ANDREA_H103187_20230119.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H103187 \n \nANDREA WOODS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nPULASKI COUNTY SPECIAL SCHOOL DIST., \nEMPLOYER                                                                                                         RESPONDENT  \n \nARK. SCHOOL BOARDS ASS’N WORKERS’ \nCOMPENSATION TRUST/ARK. SCHOOL BDS. ASS’N \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \nAMENDED OPINION AND ORDER FILED JAUNUARY 19, 2023 \nHOLDING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE IN \nABEYANCE FOR 60 DAYS \n \nHearing conducted on Wednesday, January 12, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge  (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe  claimant  was  represented  by  the  Honorable  Willard  Proctor,  Jr.,  Proctor  Law  Firm,  Little \nRock, Pulaski County, Arkansas.  \n \nThe  respondents  were  represented  by  the  Honorable  Carol  Lockhard  Worley,  Worley,  Wood  & \nParrish, Little Rock, Pulaski County, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  conducted  on  Wednesday,  January  11,  2023,  to  determine  whether  this \nclaim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) \n(2022)  Lexis  Replacement)  and  Commission  Rule  099.13  (2022  Lexis  Repl.).  The  respondents \nfiled a motion to dismiss with the Commission on November 18, 2022, requesting this claim be \ndismissed without prejudice for lack of prosecution. (Respondents’ Exhibit 1). \nIn accordance with applicable Arkansas law, the claimant was mailed due and proper legal \nnotice of both the respondents’ motion to dismiss as well as a copy of the hearing notice at his \ncurrent addresses of record via the United States Postal Service (USPS), First Class Certified Mail,  \n\nAndrea Woods, AWCC No. H103187 \n \n2 \n \nReturn  Receipt  Requested,  which  she  received  as  is  evidenced  by  Commission  Exhibit  1.  The \nclaimant  and  her  attorney  appeared  in  person  at  the  hearing  and  objected  to  the  respondents’ \nmotion to dismiss. The claimant’s attorney advised he intended to communicate and work with the \nrespondents’ attorney in order attempt to resolve some outstanding health insurance liens in order \nthat the parties may enter into settlement negotiations. The claimant’s attorney advised he intended \nto request a hearing if the parties were unable to resolve the outstanding issues.  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter by reference. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively demonstrates the claimant has \nneither requested a hearing nor taken any action as of the hearing date to prosecute her claim. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, and as I advised the parties on the record at the hearing, I hereby make \nthe following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. The ALJ will hold in abeyance a decision on the respondents’ subject  \n  motion to dismiss without prejudice for a period of 60 days, or until  \nMonday, March 13, 2023 (for 60 days from the hearing date falls on a  \nSunday). \n \n\nAndrea Woods, AWCC No. H103187 \n \n3 \n \n3.         The parties have 60 days from the hearing date, or until Monday, March \n 13, 2023, to obtain any and all additional information they require and to  \nattempt to resolve any and all outstanding liens, and/or other issues, if any  \nremain.  \n \n      4.         If, within five (5) days after the expiration of this 60-day time-period the \n      claimant does not request, in writing (with a copy to the respondents’  \n      attorney, of course), a hearing before the Commission and advise both the  \n      Commission and the respondents exactly what specific issues she believes  \nare ripe for a hearing, the ALJ will grant the respondents’ motion to  \ndismiss filed November 18, 2022, without prejudice, and without the \nnecessity of either the respondents filing another motion, and without \n                  holding another hearing on the motion. \n \n     If they have not already done so, the respondents shall pay the court reporter’s invoice within \n \n twenty (20) days of the filing of this opinion and order. \n \n     IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Mike Pickens \n                                                                                               Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5470,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H103187 ANDREA WOODS, EMPLOYEE CLAIMANT PULASKI COUNTY SPECIAL SCHOOL DIST., EMPLOYER RESPONDENT ARK. SCHOOL BOARDS ASS’N WORKERS’ COMPENSATION TRUST/ARK. SCHOOL BDS. ASS’N INSURANCE CARRIER/TPA RESPONDENT AMENDED OPINION AND ORDER FILED JAUNUARY 19, 2023 H...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:11:40.007Z"},{"id":"alj-H001634-2023-01-18","awccNumber":"H001634","decisionDate":"2023-01-18","decisionYear":2023,"opinionType":"alj","claimantName":"Ericka Beeler","employerName":"City Of Bentonville","title":"BEELER VS. CITY OF BENTONVILLE AWCC# H001634 JANUARY 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BEELER_ERICKA_H001634_20230118.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BEELER_ERICKA_H001634_20230118.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H001634 \n \nERICKA WILLIAMS BEELER, Employee                                                        CLAIMANT \n \nCITY OF BENTONVILLE, Employer                                                         RESPONDENT                         \n \nARKANSAS MUNICIPAL LEAGUE WCT, Carrier/TPA                            RESPONDENT                         \n \n \n \n OPINION FILED JANUARY 18, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by JASON M. HATFIELD, Attorney, Springdale, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On  December  21,  2022,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on September 7, 2022 \nand  a  pre-hearing  order  was  filed  on  September  12,  2022.    A  copy  of  the  pre-hearing \norder has been marked as Commission’s Exhibit #1 and made a part of the record without \nobjection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The prior Opinion of March 31, 2021 is final. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.     Compensability of injury to claimant’s left knee on February 26, 2020. \n\nBeeler – H001634 \n \n2 \n \n2.    Claimant’s entitlement to medical treatment as recommended by Dr. \nDougherty. \n3.    Lack of notice. \n4.    Statute of limitations. \n5.    Whether the claim for claimant’s left knee is governed by the Law of the Case  \nDoctrine and whether respondent is in contempt. \n6.    Attorney’s fee. \nThe claimant’s contentions are set forth in her pre-hearing questionnaire which is \nattached to Commission’s Exhibit #1 as Exhibit #1. \nThe respondents contend claimant did not suffer an injury to her left knee in the \ncourse and scope of her employment on February 26, 2020.  Claimant did not give notice \nof any injury to her left knee until July 18, 2022.  The statute of limitations has run on any \nclaim  that  she  suffered  a  left  knee  injury  on  February  26,  2020.    There  is no  basis  for \nclaimant’s assertion that respondents are in contempt of any order or directive from the \nCommission.  Claimant was not claiming entitlement to any benefits associated with her \nleft  knee  at  the  March  3,  2021  hearing  and  she  did  not  mention her  knee  as  being  a \nsource of symptoms or problems when discussing the issues and contentions at the pre-\nhearing conference or hearing.  The body part and/or condition that served as the basis \nfor claimant’s claim at the hearing was an injury to her left calf and her claimed CRPS. \nFrom a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n\nBeeler – H001634 \n \n3 \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.        The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference \nconducted on September 7, 2022 and contained in a pre-hearing order filed September \n12, 2022 are hereby accepted as fact. \n 2. Claimant’s claim for her left knee is not governed by the Law of the Case \nDoctrine  and  respondent  is  not  in  contempt  for  failing  to  comply with  the  prior  Opinion \nfiled March 31, 2021.      \n 3. Claimant’s claim for a compensable injury to her left knee is not barred by \nthe Statute of Limitations. \n 4.  Claimant did not fail to give notice of her injury pursuant to A.C.A. §11-9-\n701. \n 5. Claimant has met her burden of proving by a preponderance of the evidence \nthat she suffered a compensable injury to her left knee on February 26, 2020. \n 6. Respondent is liable for payment of all reasonable and necessary medical \ntreatment provided in connection with claimant’s compensable left knee injury.  This \nincludes surgery performed by Dr. Dougherty. \n \n FACTUAL BACKGROUND \n Claimant is a 37-year-old woman who began working for respondent as a Patrol \nOfficer I on February 15, 2017 before being promoted to Patrol Officer II.  Her job duties \nincluded responding to emergency calls which included domestic violence, child abuse, \narrests, DWIs, and first responder duties at times. \n She is certified as a Women’s Self-Defense Instructor  and was teaching a class \n\nBeeler – H001634 \n \n4 \n \nat the Bentonville Police Department on February 26, 2020.  She was demonstrating a \nmove when one of the other instructors landed on her left leg, resulting in an injury to the \nleg.  After some initial medical treatment claimant came under the care of Dr. Heim, who \ndiagnosed  claimant’s  condition  as  traumatic  hematoma  that  was  not  resolving.    He \nperformed a surgical procedure to drain the hematoma on March 19, 2020.   \n During a follow-up visit on April 1, 2020, Dr. Heim noted that claimant was having \ndifficulty  putting  pressure  on  her  left  foot  because  of  pain.    Dr.  Heim  believed that \nclaimant’s symptom were consistent with complex regional pain syndrome (“CRPS”) and \nhe ordered physical therapy.   \n On May 13, 2020, claimant received a change of physician to Dr. Dougherty and \nhe diagnosed claimant’s condition as CRPS of the lower limb which he attributed to her \nwork injury.  When physical therapy did not improve claimant’s condition, Dr. Dougherty \nreferred claimant to Dr. Deimel for nerve blocks.  Dr. Deimel performed nerve blocks and \nindicated that claimant would be a candidate for a spinal cord stimulation trial.  He referred \nclaimant to the Mayo Clinic for treatment and Dr. Dougherty also referred claimant to the \nMayo Clinic. \n Physicians at the Mayo Clinic determined that claimant was a candidate for a trial \nstimulator which was successful and a permanent  implantation was recommended.  At \nthat  point  respondent  denied  liability  for  the  continued  treatment  of  CRPS  and  the \npermanent implantation of a stimulator. \n A hearing was conducted on March 3, 2021 on the issue of claimant’s entitlement \nto additional medical treatment as recommended by Dr. Dougherty and the physicians at \nthe Mayo Clinic.  In an opinion filed March 31, 2021, this Administrative Law Judge found \n\nBeeler – H001634 \n \n5 \n \nthat claimant had met her burden of proving by a preponderance of the evidence that she \nwas  entitled  to  the  recommended  treatment,  including  treatment  for  RSD/CRPS.    That \nopinion was not appealed and the parties have stipulated that it is final.   \n Since  the  time  of  the  prior  hearing  claimant  has  undergone  a  procedure  for \npermanent  implantation  of  the  stimulator.  With  respect  to  her  RSD/CRPS, Dr.  Deimel \nopined that claimant had reached maximum medical improvement as of March 16, 2022.  \nClaimant underwent a functional capacities evaluation on March 29, 2022, which found \n50 of 50 consistency measures within expected limits and determined that claimant could \nperform work in the medium classification of work.  Claimant is currently working at home \nfor Tyson Corporate.   \n Claimant testified that prior to her release at maximum medical improvement by \nDr. Deimel she limited her physical activity based on the physicians’ recommendations.   \n  They just continued to monitor my left - - you know, my  \n  left leg from my knee to my toes and monitor it until my \n  scar tissue set in for the battery and the leads, so I was \n  under strict requirements of what I could or could not do \n  for an entire year. \n \n \n Claimant testified that after her release by Dr. Deimel she tried to do more walking \nwhich  included  walking  around  her  neighborhood.    After  walking  about  three  days  she \nstarted having increased pain in her left leg, including her left knee.  Claimant stated that \nafter waking up one morning she could not put her foot on the ground because of knee \npain and she made an appointment to see Dr. Dougherty.  He indicated that her condition \nwas  consistent  with  a  possible  medial  collateral  ligament  sprain  of  the  left  knee  and \nordered an MRI scan. \n\nBeeler – H001634 \n \n6 \n \n According to Dr. Dougherty’s report of July 18, 2022, the MRI scan revealed an \nACL tear of the left knee which he attributed to her original injury.  He performed surgery \non claimant’s left knee on July 26, 2022, with a post-operative diagnosis of “ACL tear, left \nknee with prior tear sear to PCL and non-functional ligament.”  Following surgery claimant \nhas undergone physical therapy. \n Respondent  did  not  accept  liability  for  the  knee  surgery  performed  by  Dr. \nDougherty.    Claimant  has  filed  this  claim  contending  that  she  suffered  a  compensable \ninjury to her left knee on February 26, 2020. She requests payment of medical treatment \nreceived for that injury. \n \nADJUDICATION \n Initially,  claimant  contends  that  this  claim  is  governed  by  the  Law  of  the  Case \nDoctrine.  At the time of the last hearing the parties had stipulated that claimant suffered \na compensable injury to her left lower extremity.  This stipulation was accepted as fact in \nthe March 31, 2021 Opinion.  In addition, Finding of Fact and Conclusion of Law Number \n2 from that Opinion states: \n  Claimant has met her burden of proving by a  \n  preponderance of the evidence that she is \n  entitled to additional medical treatment for \n  her compensable injury as recommended by \n  Dr. Dougherty and her physicians at the Mayo \n  Clinic.  This includes recommended treatment \n  for RSD/CRPS.  \n \n \n Claimant  contends  that  this  stipulation  and  finding  are  the  law  of  the  case  and \nrespondent is precluded from denying compensability for claimant’s left knee.  The Law \n\nBeeler – H001634 \n \n7 \n \nof  the  Case  Doctrine  provides  that  it  is  conclusive  of  every  question  of  law  and  fact \ndecided previously and also those that could have been raised and decided.  Turner v. \nNW Ark Neurosurgery, 91 Ark. App. 209, 210 S.W. 3d 126 (2005).  The Law of the Case \nis also similar to the doctrine of collateral estoppel which bars re-litigation of issues of law \nor fact previously litigated.  The elements of collateral estoppel are (1) the issue sought \nto be precluded must be the same as that involved in the prior litigation; (2) the issue must \nhave  been  actually  litigated;  (3)  it  must  have  been  determined  by  a  valid and  final \njudgement; (4) the determination must have been essential to the judgement.  Johnson \nv. Union Pac. R.R., 352 Ark. 534, 104 S.W. 3d 745 (2003).   \n Finally,   I   note   that   a   stipulation   is   an   agreement   between   the   attorneys \nrepresenting  the  conduct  of  legal  proceedings.   Dinwiddie  v.  Syler,  230  Ark.  405,  323 \nS.W. 2d 548 (1959).   \n Respondent  did  previously  stipulate  to  a  compensable  injury  to  the  left  lower \nextremity.  However, the parties’ stipulation was generic in nature and did not specify \nwhether it included the claimant’s left knee.  At the time of the original hearing, there was \nno issue regarding the claimant’s left knee.  Although claimant’s left knee had been \nmentioned in some of the medical reports, the issue at the time of the last hearing was \nclaimant’s entitlement to additional medical treatment for her RSD/CRPS.  Accordingly, I \ndo not find that the stipulation of a compensable injury to claimant’s left lower extremity \nconstituted  an  acceptance  by  respondent  of  any  and  all  conditions  relating  to  the \nclaimant’s leg.  Significantly, I note that the requirements for collateral estoppel require \nthat  the  determination  have  been  essential  to  the  judgement.    Here,  there  was  no \ncontemplation by any of the parties at the time of the original hearing that there were any \n\nBeeler – H001634 \n \n8 \n \nissues regarding claimant’s knee at that time.  To find otherwise would be unjust under \nthe circumstances presented in this case. \n I also find that claimant’s claim for a compensable injury to her left knee is not \nbarred by the Statute of Limitations.  Since the respondent had previously accepted and \npaid compensation benefits for claimant’s left lower extremity injury, her claim for a left \nknee  injury  is  a  claim for  additional  compensation  benefits.   Pursuant to A.C.A.  §11-9-\n702(b)(1),  when  compensation  has  been  paid  a  claim  for  additional  compensation is \nbarred unless filed with the Commission within one year from the date of last payment of \ncompensation  or  two  years  from  the  date  of  injury,  whichever  is  greater.    In  this  case, \nclaimant submitted into evidence payment records from respondent showing that the last \npayment of compensation as of September 12, 2022 was a payment for disability benefits \nto claimant through August 12, 2022.  Obviously, it has not been one year since the date \nof last payment of compensation.  Therefore, claimant’s claim for additional compensation \nbenefits is not barred by the Statute of Limitations. \n Respondent has also raised the issue of notice as a defense to this claim.  Notice \nof the reporting of injuries is codified at A.C.A. §11-9-701.  Subsection (a)(1) states that \nan employee shall report the injury to the employer on a form prescribed or approved by \nthe  Commission  and  to  a  person  or  at  a  place  specified  by  the  employer  and  that  the \nemployer is not responsible for disability, medical, or other benefits prior to receipt of the \nemployee’s report of injury.  Here, respondent was aware of the injury to claimant’s left \nlower extremity.  In fact, respondent was aware of the injury on the day it occurred and it \naccepted claimant’s injury as compensable and began paying benefits for the injury to \nher left lower extremity immediately thereafter.  Accordingly, I find that the provisions of \n\nBeeler – H001634 \n \n9 \n \nA.C.A. §11-9-701 are not applicable to this claim. \n Turning to  the  primary  issue  in  this  case,  claimant  contends that  she  suffered a \ncompensable injury to her left knee as a result of the accident which occurred on February \n26, 2020.  Claimant’s claim is for a specific injury identifiable by time and place of \noccurrence.   In order to prove a compensable injury as the result of a specific incident \nthat  is  identifiable  by  time  and  place  of  occurrence,  a  claimant  must  establish  by  a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has met her burden of proof. \n First, I find that claimant has met her burden of proving by a preponderance of the \nevidence that her injury arose out of and in the course of her employment with respondent \nand  that  the  injury  was  caused  by  a  specific  incident  identifiable  by  time  and  place  of \noccurrence.  Claimant began making complaints of left knee pain almost immediately after \nthe  February  26,  2020  injury.    In  a  note  dated  March  18,  2020,  Dr.  Heim noted  that \nclaimant had indicated that her left knee had begun to hurt.  He also stated: \n  After that [draining of hematoma] we can start range \n  of motion of the knee and ankle start weightbearing \n  and get her back to her normal activity level. \n \nThereafter, on April 1, 2020, Dr. Heim stated: \n\nBeeler – H001634 \n \n10 \n \n I am more concerned about the fact that she has \n symptoms of significant pain in the medial joint \n line of the left knee and that she has an autonomic \n change in the left lower extremity consistent with \n probably early regional pain syndrome. \n \n    *** \n We will have to evaluate her knee again following \n this treatment as it would appear at this time she \n may possibly have a medial meniscus tear which \n was masked by her being on crutches for the last \n several weeks. \n \n \nThereafter, claimant came under the care of Dr. Dougherty who also believed that \nclaimant might suffer from a medial meniscus tear and  he ordered an MRI scan.   The \nMRI scan was read by the radiologist as showing no findings of a meniscal tear, but did \nshow a thinning of the proximal ACL and mild chondromalacia of the medial femoral tibial \ncompartment. \n When  claimant  returned  to  Dr.  Dougherty  on  June  10,  2020,  he  indicated  that \nclaimant’s MRI scan revealed plica syndrome.  Dr. Dougherty indicated that he believed \nthat claimant’s plica was related to her work-related injury. \n  I do believe the plica and her CRPS are due to her \n  work related injury at greater than 51%.   \n \n \n Thereafter, claimant underwent physical therapy which included physical therapy \nfor  her  left  knee.    In  fact,  the  physical  therapist  report  of  July  7,  2020  indicates  that \nclaimant’s signs and symptoms were consistent with left medial knee pain. \n Claimant  subsequently  underwent  a  cortisone  injection  in  her  left  knee  by  Dr. \nDougherty on August 12, 2020.  All of this medical treatment was accepted and paid for \nby the respondent.   \n\nBeeler – H001634 \n \n11 \n \n At  that  point  in  time  the  focus  primarily   became claimant’s  treatment  for \nRSD/CRPS, a trial stimulator, and eventually the permanent implantation of a stimulator.  \nAs  claimant  testified,  she  was  under  strict  requirements  for  what  she  could  do  activity \nwise for approximately one year. \n It was not until after claimant was released by Dr. Deimel and given permission to \nincrease her activity that she began walking and immediately developed additional pain \nin her left knee resulting in her seeking additional medical treatment from Dr. Dougherty.  \nIn his report of June 27, 2022, Dr. Dougherty stated: \n  Just got released from the spinal cord stimulator \n  operated 3/27/22.  She reports she started to work \n  out again and immediately the knee started aggra- \n  vating her again. \n \n          *** \n  She was seen today for recurrent left knee pain. She \n  reports that she has not been doing any physical \n  activity due to the spinal stimulator that was placed \n  in 2021.  She recently got released and began to \n  feel discomfort again when walking.  The x-rays \n  today showed joint space well maintained soft tissue \n  unremarkable.  After the exam, her pain was consistent \n  with a possible medial collateral ligament sprain of the \n  left knee.  She will be sent for an MRI of the left knee \n  and follow up if the pain persists. \n \n \n Most  significantly  in  Dr.  Dougherty’s  report  of  June  27,  2022,  he  stated  that \nclaimant’s continued left knee problems were related to her original injury. \n  Her injury is directly related to her old injury as she \n  was lax in her knee back on her early exams yet we \n  were dealing with the CRPS and could tolerated [sic] \n  anything for the knee.  I will see her back after the \n  MRI. \n \n \n\nBeeler – H001634 \n \n12 \n \n Claimant underwent the MRI scan on July 1, 2022, and returned to Dr. Dougherty \non July 18, 2022.  Dr. Dougherty indicated that claimant’s MRI scan showed an ACL tear \nwhich in his opinion was related to the claimant’s original injury. \n  Her ACL is non functioning and the tear is related to \n  her original left knee injury. \n \n \n Dr. Dougherty went on to recommend a left knee arthroscopic procedure with ACL \nconstruction which he performed on July 26, 2022. \n Dr. Dougherty again addressed the relationship between claimant’s current knee \ncomplaints and her original injury in an undated letter which has been submitted as Page \n1 of Claimant’s Exhibit 4.  That letter states in pertinent part: \n  The patient was placed under my care for a lower  \n  leg injury. She suffered a fat fracture of the leg and \n  had developed chronic regional pain syndrome due \n  to this.  At her initial visit, she was diagnosed with a \n  knee injury at the same time as her CRPS.  Her \n  initial MRI on 6/4/20 was significant for thinning of \n  the proximal ACL and her exam was consistent  \n  with the same as an MCL tear.  Due to her pain \n  in the leg no surgical intervention could be offered \n  at that time.  She continued to complain of pain and \n  instability in the knee and after the stimulator continued \n  instability in the knee.  The subsequent MRI 7/1/22 \n  demonstrated a small caliber ACL consistent with \n  prior tear which was evidenced by the thinning on \n  the original study.  She subsequently underwent \n  Anterior Cruciate Ligament Reconstruction due to \n  This instability.  It is my opinion based upon the facts \n  presented in the chart, that this is directly related to \n  the original injury, as evidenced on MRI and clinical \n  exam.  (Emphasis added.) \n \n \n In response to Dr. Dougherty’s opinion, respondent had claimant’s MRI scans \nevaluated by Justin H. Long, a radiologist.  Dr. Long authored a report dated November \n\nBeeler – H001634 \n \n13 \n \n28, 2022 in which he basically opined that the MRI scan from June 4, 2020 showed an \nintact ACL with no findings present to indicate an ACL injury.  Given the fact that the most \nrecent  MRI  scan  does  show  a  torn  ACL,  respondent  contends  that  the  recent  findings \ncannot be related to the original compensable injury.  Dr. Dougherty addressed this issue \nin a subsequent report dated December 5, 2022: \n  I am in receipt of the MRI interpretation from the  \n  outside radiologist, and I am in complete agreement \n  with the interpretation.  The difficulty lies in that \n  there is a larger percentage of error in MRI and \n  the radiologist, without the benefit of the clinical \n  exam, is not able to assess the function of the \n  ligament, but rather only the appearance of the \n  ligament at the time of the study.  A review of the \n  literature reveals a large number of papers docu- \n  menting the MRI vs surgical findings.  This month \n  alone I performed two separate surgeries where \n  the MRI stated the ACL is normal and taught [sic] \n  and yet clinically they are unstable and at the time \n  of the surgery, the ACL is completely torn or the \n  patient has a Type 1 tear.  In this tear subtype the \n  MRI looks intact but is actually detached from the  \n  femoral insertion.  This is the subtype tear the \n  patient in question had and the instability she \n  experienced is the reason for the reconstruction. \n \n \n In short, I find that the opinion of Dr. Dougherty is entitled to greater weight than \nthe opinion of Dr. Long.  Dr. Dougherty is a specialist who evaluated the claimant shortly \nafter her compensable injury and he also performed the surgery.  It is his opinion that this \ncondition existed from the time of claimant’s original injury based not only upon the MRI \nfindings  but  upon his clinical  examination  as  well.  With  respect  to  this  issue, I  likewise \nnote that Dr. Heim in 2020 was of the opinion that claimant had a tear in her left knee.  \nBased on the foregoing, I find that the opinion of Dr. Dougherty is entitled to greater weight \n\nBeeler – H001634 \n \n14 \n \nthan the opinion of Dr. Long. \n Based upon the opinion of Dr. Dougherty that claimant’s current left knee problems \nare related to the original injury of February 26, 2020, as well as the remaining evidence \npreviously  discussed,  I  find  that  claimant  has  met  her  burden  of  proving  by  a \npreponderance  of  the  evidence  that  her  injury  to  the  left  knee  arose  out  of and  in  the \ncourse of her employment with respondent and that it was caused by a specific incident \nidentifiable by time and place of occurrence. \n I  likewise  find  that  claimant  has  proven  that  her  injury  caused  internal  physical \nharm  to  her  body  which  required  medical  services  and  that  she  has  offered  medical \nevidence supported by objective findings establishing an injury. In addition, based upon \nclaimant’s  compensable  injury  she  underwent  surgery  to  repair  a  torn  ACL  by  Dr. \nDougherty. Clearly, this is internal harm to the body that required medical services and it \nis medical evidence supported by objective findings establishing an injury. \n In summary, I find that claimant has met her burden of proving by a preponderance \nof the evidence that she suffered a compensable injury to her left knee on February 26, \n2020.    Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment provided in connection with claimant’s compensable left knee injury.  This \nincludes the surgery which has been performed by Dr. Dougherty. \n \nAWARD \n Claimant has met her burden of proving by a preponderance of the evidence that \nshe suffered a compensable injury to her left knee on February 26, 2020. Respondent is \nliable  for  payment  of  all  reasonable  and  necessary  medical  treatment  provided  in \n\nBeeler – H001634 \n \n15 \n \nconnection with claimant’s compensable injury. \nPursuant to A.C.A. §11-9-715(a)(1)(B)(ii), attorney fees are awarded “only on the \namount  of  compensation  for  indemnity benefits  controverted and awarded.”   Here, no \nindemnity benefits were controverted and awarded; therefore, no attorney fee has been \nawarded.   Instead, claimant’s attorney is free to voluntarily contract with the medical \nproviders pursuant to A.C.A. §11-9-715(a)(4). \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $564.45. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAWJUDGE","textLength":26253,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H001634 ERICKA WILLIAMS BEELER, Employee CLAIMANT CITY OF BENTONVILLE, Employer RESPONDENT ARKANSAS MUNICIPAL LEAGUE WCT, Carrier/TPA RESPONDENT OPINION FILED JANUARY 18, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washing...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["knee","sprain","ankle","back","fracture"],"fetchedAt":"2026-05-19T23:11:31.679Z"},{"id":"alj-H107730-2023-01-18","awccNumber":"H107730","decisionDate":"2023-01-18","decisionYear":2023,"opinionType":"alj","claimantName":"Gary Norris","employerName":"City Of North Little Rock","title":"NORRIS VS. CITY OF NORTH LITTLE ROCK AWCC# H107730 JANUARY 18, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/NORRIS_GARY_H107730_20230118.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"NORRIS_GARY_H107730_20230118.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H107730 \n \n \nGARY W. NORRIS, EMPLOYEE CLAIMANT \n \nCITY OF NORTH LITTLE ROCK, \n SELF-INSURED EMPLOYER RESPONDENT \n \nARK. MUN. LEAGUE, \n THIRD-PARTY ADMINISTRATOR RESPONDENT \n \n \nOPINION FILED JANUARY 18, 2023 \n \nHearing before Administrative Law Judge O. Milton Fine II on October 25, 2022, in Little \nRock, Pulaski County, Arkansas. \n \nClaimant represented by Mr. Andy L. Caldwell, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  Ms.  Carol  Lockard  Worley,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On  October  25,  2022,  the  above-captioned  claim  was  heard  in  Little  Rock, \nArkansas.  A prehearing conference took place on September 7, 2022.  The Prehearing \nOrder entered on September 8, 2022, pursuant to the conference was admitted without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed that  the \nstipulations, issues, and respective contentions, as amended, were properly set forth in \nthe order. \nStipulations \n The   parties   discussed   the   stipulations   set   forth   in   Commission   Exhibit  1.  \nFollowing amendments at the hearing, they read: \n\nNORRIS – H107730 \n \n2 \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The  employee/self-insured  employer/third-party  administrator  relationship \nexisted   at   all   relevant   times,   including   September   14,   2021,   when \nClaimant  sustained  compensable  injuries  to his  right  upper and  left  lower \nextremities.    Respondents  accepted  these  injuries  as  compensable  and \npaid certain benefits in connection therewith. \n3. Claimant’s  average  weekly  wage  entitles  him  to  compensation  rates of \n$586.00/$439.00. \n4. Claimant  was assigned  an  impairment  rating  of  thirteen  percent  (13%)  to \nthe  upper  extremity  in  connection  with  his  stipulated  compensable  right \nupper extremity injury.  This rating should be assigned to 244 weeks, per \nArk. Code Ann. § 11-9-521(a)(1) (Repl. 2012). \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  After amendments at the hearing, the following were litigated: \n1. Whether  Claimant  is  entitled  to  certain  alleged  unpaid  medical  expenses \nin connection with his stipulated compensable injuries. \n2. Whether,  and  to  what  extent,  Claimant  is  entitled  to  a  controverted \nattorney’s fee under Ark. Code Ann. § 11-9-715 (Repl. 2012) in connection \nwith  his  stipulated  impairment  rating  of  thirteen  (13%)  to  the  right  upper \nextremity. \n\nNORRIS – H107730 \n \n3 \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, following amendments  at the hearing, \nare as follows: \n Claimant: \n1. Claimant sustained compensable injuries to his left knee and right arm in \nthe  course  and  scope  of  his  employment  when  he  fell  while  doing  an \nHVAC inspection on September 14, 2021.  He is entitled to the payment of \nreasonable  and  necessary  medical  expenses,  out-of-pocket  expenses, \nmileage  reimbursement,  additional  anatomical  impairment for  his  injuries, \nand an attorney’s fee. \n2. Claimant continues to be billed by Baptist Health in the amount of $850.00 \nfor treatment   related   to   his   compensable   knee   injury—specifically, \nanesthesia  rendered  in  connection  with  his  surgery.    Respondents  have \nknown  about  this  bill  for  over  a  year,  but  have  failed/refused  to  pay for \nsame.  Claimant’s  credit  rating  should  not  be  negatively  affected  by \nRespondents’ action/inaction in this regard. \n3. Dr.  Mark  Tait  assigned  Claimant  an  impairment  rating  of  thirteen  percent \n(13%)  to  the  upper  extremity  for  his  compensable  right  upper  arm  injury.  \nClaimant  should  have  been  entitled  to  31.72  weeks  of  permanent  partial \ndisability benefits for same under  Ark. Code Ann. § 11-9-521(a)(1) (Repl. \n2012).  But  Respondents  have  paid/are  paying  Claimant  23.79  weeks  in \n\nNORRIS – H107730 \n \n4 \nthat  they used  the  elbow-to-wrist  reference  in  the  statute  (183  weeks – § \n11-9-521(a)(2)).    Claimant  is  entitled  to  the  underpayment  on  the  rating \n(7.93  weeks).    After  Respondents  sent  Claimant  correspondence  that \nincorrectly  used  the  183-week  standard,  Claimant’s  counsel  reached  out \nto  Respondents’  counsel;  and  the  later  agreed  with  the  former  that  the \nwrong standard was being used.  Therefore, Claimant’s counsel is entitled \nto a controverted attorney’s fee on the 7.93 weeks’ worth of benefits. \nRespondents: \n1. Respondents  contend  that  all  appropriate  benefits  have  been  and are \ncontinuing  to  be  paid  with  regard  to  this  matter.    Medical  benefits  have \nbeen  afforded  to  Claimant  and  bills  have  been  paid.  With  regard  to  the \nunpaid medical bill from Baptist Health, Respondents have been unable to \nget a properly submitted bill under AWCC R. 099.30.  As a result, the bill \ncannot be sent to the auditing company for payment.  Claimant should not \nhave  his  credit  adversely  affected  by  the  unpaid  bill  because  Rule  30 \nprohibits balance billing. \n2.  Claimant has been assigned permanent impairment ratings by his treating \nphysicians.  Both ratings have been accepted and are being paid out.  No \npart   of   the   ratings   that   Claimant   has   been   assigned   has   been \ncontroverted. \n\nNORRIS – H107730 \n \n5 \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, including medical reports, documents, and \nother  matters  properly  before  the  Commission,  and  having  had  an  opportunity  to  hear \nthe  testimony  of  the  witnesses  and  to  observe  their  demeanor,  I  hereby make  the \nfollowing  findings  of  fact  and  conclusions  of  law  in  accordance with  Ark.  Code  Ann.  § \n11-9-704 (Repl. 2012): \n1. The  Arkansas  Workers’ Compensation  Commission  has  jurisdiction  over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Issue  No.  1,  concerning  the  non-payment  by  Respondents of  a  bill  for \nanesthesiology services rendered Claimant in connection with treatment of \nhis  stipulated  left  knee  injury,  will  not  be  addressed.    Instead,  it  will  be \nconsidered reserved. \n4. Claimant   has   proven   by   a   preponderance   of   the   evidence   that \nRespondents  controverted  his  entitlement  to  a  thirteen  percent  (13%) \nimpairment rating under Ark. Code Ann. § 11-9-521(a)(1) (Repl. 2012), as \nopposed to the lesser-valued rating they accepted under § 11-9-521(a)(2), \nin connection with his stipulated compensable right upper extremity injury.  \nThus,  his  counsel,  the  Hon.  Andy  Caldwell,  is  entitled  under  Ark.  Code \nAnn. § 11-9-715 (Repl. 2012) to a controverted fee on the additional 7.93 \nweeks’  worth  of  permanent  partial  disability  benefits  to  which  Claimant  is \nentitled under § 11-9-521(a)(1).  At Claimant’s stipulated permanent partial \n\nNORRIS – H107730 \n \n6 \ndisability rate of $439.00 per week, this fee is valued at $870.32.  Claimant \nand  Respondents  each  owe  half  of  this,  or  $435.16,  to  Mr.  Caldwell \npursuant  to  § 11-9-715(a)(2)(B)(i).  These  monies  are  to  be  paid  in \naccordance with this provision. \nCASE IN CHIEF \nSummary of Evidence \n The witnesses were Claimant and Andrea Sayre. \n Along  with  the  Prehearing  Order  discussed  above,  the  exhibits  admitted  into \nevidence  in  this  case  were Claimant’s  Exhibit  1,  a  compilation  of his  medical  records, \nconsisting of two index pages and 222 numbered pages thereafter; Claimant’s Exhibit 2, \nnon-medical  documents,  consisting  of a  one  index  page  and  eight  numbered  pages \nthereafter;  Respondents’  Exhibit  1, non-medical  documents,  consisting  of a  one  index \npage   and 24   numbered   pages   thereafter;   and   Respondents’   Exhibit   2,   another \ncompilation  of  Claimant’s  medical  records,  consisting  of  a  one-page  index  and  36 \nnumbered pages thereafter. \n In  addition,  I  have  blue-backed\n1\n  to  the  record  the  prehearing  questionnaire \nresponses filed by Claimant on April 18, August 11, and October 18, 2022, respectively, \n \n \n1\nAt  the  hearing,  I  indicated  that  without  objection,  the  prehearing  questionnaire \nresponses  of  the  parties  would “be  incorporated  by  reference” in  order  to  set  out  the \nrespective contentions of the parties, since those were not included in the September 8, \n2022, Prehearing Order.  [T. 20]  Respondents’ counsel spoke up to make sure that all \nthree  of   Claimant’s  filings   were   being   incorporated,   arguing   that   they   contained \ninformation  bearing  on  the  issue  concerning  whether  her  clients  had  controverted \nClaimant’s entitlement to a controverted fee on any portion of the impairment rating that \n\nNORRIS – H107730 \n \n7 \nand  consisting  of  three,  three,  and  four  numbered  pages,  respectively;  and  the \n \nhe  had  been  assigned  regarding  his  stipulated  compensable  right  upper  extremity \ninjury.  [T. 20-21]  In commenting on this, I remarked as follows: \n \n.  .  .  we’re  going  beyond  the  simple  matter  of  here  are  the  respective \ncontentions  of  the  parties  as  they  have  stated  them  in  their  pre-hearing \nquestionnaire  responses.    This  is  going  more  to,  perhaps,  substantive \nevidence   along   the   lines   of   whether   or   not   Respondents   actually \ncontroverted  any  portion  of  the  13%  rating  .  .  .  because  it’s  one  thing  to \nsimply incorporate them in so I can be able to correctly conceptualize and \nset   out   what   your   respective   contentions   are.      It’s   another   matter \naltogether if you’re wanting them in for some type of substantive evidence \non  the  controversion  issue,  and  that’s  why  I  was  going to [flesh]  this  out.  \nWe’re not even yet to the matter of the exhibits.  We’re still on just sorting \nout  the  contents  of  the  Prehearing  Order,  believe  it  or  not.    So  maybe  I \nshould  even  hold  my  tongue  on  this  and  move  on,  because  both  of  you \nhave   agreed—as   I   understand   it,   you   have   agreed   to having   the \nprehearing  questionnaire  responses  come  in  for  the  purposes  of  just  me \nbeing able to restate your contentions.  Maybe I should just move on from \nthere and we can talk about the documentary evidence at the appropriate \ntime. \n \n[T.  21,  24]  Evidence,  once  admitted,  may  be  considered  by  the  trier  of  fact  for  any \nlegitimate  purpose.   See,  e.g.,  Spicer  v.  State,  32  Ark.  App.  209,  799  S.W.2d  562 \n(1990)(evidence  of  defendant’s  refusal  to  submit  to  chemical  test  admissible  as \ncircumstantial  evidence  showing consciousness  of  guilt,  and  also  relevant  to  issue  of \nintoxication).  Under Ark. R. Evid. 105: \n \nWhenever evidence which is admissible as to one [1] party or for one [1] \npurpose  but  not  admissible  as  to  another  party  or  for  another  purpose  is \nadmitted,  the  court,  upon  request,  shall  restrict  the  evidence  as  to  its \nproper scope and instruct the jury accordingly. \n \nThis  proceeding  was a  bench  trial.    Moreover,  Ark.  Code Ann.  § 11-9-705(a)(1)  (Repl. \n2012) provides that the “Commission shall not be bound by technical or statutory rules \nof evidence . . . but may . . . conduct the hearing, in a manner as will best ascertain the \nrights  of  the  parties.”  Consequently,  these  prehearing  filings,  admitted  into  evidence, \nmay  be—and  will  be—considered  not  only  for  the  purpose  of  correctly  setting  out  the \nrespective  contentions  of  the  parties,  but will also  be  given  due  weight  in  determining \nwhether  and  to  what  extent  Respondents  controverted  the  upper-extremity  impairment \n\nNORRIS – H107730 \n \n8 \nprehearing  questionnaire  response  filed  by  Respondents  on  August  26,  2022,  and \nconsisting of three numbered pages. \nAdjudication \nA. Outstanding Medical Bill \n Claimant,  who  was  employed by  Respondent  City  of  North  Little  Rock on \nSeptember 14, 2021, suffered stipulated compensable injuries on that date.  He testified \nthat  he  was  employed  there  as  an  HVAC/mechanical  inspector,  and  was  hurt  in  the \nfollowing episode: \nI went to a residence and went up into his—a new residence, no one lived \nthere.   I went into the attic and I was lookin’ at the heat and  air unit, and \nthe electrical was messed up on it, and I was—I’m trying to make  it short \nand sweet—so I was lookin’ at the electrical and then it was all messed up \nand  it  had  failed,  so  when  I  turned  around,  I—there  was  some  debris  on \nthe  floor  and  I  stepped  on  it,  my  feet  went  backwards  and  I  fell  forward \nand landed on the ductwork, and the two-inch metal strapping caught me \nin the middle of my arm as I fell. \n \n[T. 31-32] \n Not only did  Claimant suffer  severe lacerations of his right  upper extremity as a \nresult  of  his  work-related  fall—including  a  transection  of  his  brachial  artery  that \nnecessitated  surgery  that  same  day—but  he  hurt  his  left  knee  as  well.  Eventually,  on \nNovember 5, 2021, he had to undergo  an operation on that as well.   This consisted of \nan arthroscopy with meniscectomy.  Claimant related that he has been getting a bill for \n$850.00 in connection with his knee surgery. \n \nrating.  It was thus unnecessary for their admission to be addressed yet again when the \nother documentary evidence was being offered into evidence.  [T. 27-29] \n\nNORRIS – H107730 \n \n9 \n Andrea  Sayre,  the  workers’  compensation  adjustor  for  Respondent  Arkansas \nMunicipal  League,  testified  that  she  has  handled  the  instant  claim  since  its  inception.  \nThe following exchange took place during her examination: \nQ. Let’s  talk  first  about  the  bill.    Can  you  tell  the  Judge  what  your \nefforts have been to get payment of the bill—the $850.00 bill that’s \noutstanding in this one? \n \nA. Yes.    I’ve  made  multiple  attempts  to  get  the  actual  HCFA.    I’ve \nspoken  with  multiple  people.    I’ve  sent  letters  and  I’ve  sent  emails \nrequesting the HCFA, and to date have not received it. \n \nQ. Okay.  And we have introduced here today your efforts on that, and \nI think they are at Claimant’s Exhibit 2 [sic—actually  Respondents’ \nExhibit 1], starting at page 20.   Andrea, can you pay a medical bill \nwithout getting a HCFA form? \n \nA. No. \n \nQ. Does Rule 30 require that you have that? \n \nA. Yes. \n \nQ. And  what  all  is  involved  with  obtaining  that?    Would  it just  be \nUAMS,  or  whoever  is  sending  this  bill,  to  send  you  the  proper \nstatement? \n \nA. That’s correct. \n \nQ. Okay.    And have  you gotten  any  explanation  from  them as  to  why \nthat hasn’t been done? \n \nA. No, I have not. \n \n[T. 44-45] \n The documentation in Respondents’ Exhibit 1, as outlined by Sayre, reflects that \nBaptist Health has sent Claimant on multiple occasions a bill for $850.00.  This was for \n\nNORRIS – H107730 \n \n10 \nanesthesiology  services  in  connection  with  his  knee  operation.    In  correspondence  to \nBaptist Health dated January 26, 2022, Sayre wrote: \nTo Whom It May Concern: \n \nMr.  Norris  received  the  statement  included  in  relation  to  his  workers[‘] \ncompensation injury.  In order for payment to be made, we are requesting \nthe following: \n \n1. A HCFA 1500 claim form or UB claim form \n2. Medical records for the outstanding bill \n \nThe exhibit does not reflect that the requested items were sent.  Instead, Baptist Health \nsimply re-sent the original statement for $850.00.  Email correspondence in the exhibit \nreflect that Sayre followed up on this matter on September 20 and October 12, 2022. \n According to AWCC R. 099.30 Part I, Section (I)(4), “Billing for provider services \nshall be submitted on the forms approved by the Commission: UB-92 and HFCA-1500 \n[sic—should be ‘HCFA-1500’].”   Subsection (10) states that carriers may return bills that \nare not on the proper form so that they can be corrected and resubmitted; but they must \ntake this action within 20 days of receipt of the bill. \n Parts  II  and  III  of  Rule  30  set  out  the  procedure  for  resolving  a  billing  dispute \nbetween a provider and a carrier.  The role of an administrative law judge in this matter \nis to review such matters on appeal, pursuant to Part III, Section (A)(3).  That is not the \nproceeding  at  hand.    Moreover,  the  general  test  for  standing  is  whether  the  person \nattempting  to  raise  an  issue  has  suffered  an “adverse  impact.”  See,  e.g.,  Pitchford  v. \nCity of Earle, 2019 Ark. App. 251, 576 S.W.3d 103.  Since under Part I, Section (I)(6)(b) \nof Rule 30, the provider cannot instead attempt to collect the bill, or any portion thereof, \n\nNORRIS – H107730 \n \n11 \nfrom  the  claimant  who  received  the  service,  it  does  not  appear  that  Claimant  has \nsuffered  an “adverse  impact”  by  the  non-payment  of  the  anesthesiology  bill  for  the \npurpose  of  conferring  standing  to  raise  this  issue.   See  also  Nelson  v.  Ark.  Rural \nPractice  Med.  Practice  Loan  &  Scholarship  Bd.,  2011  Ark.  491,  385  S.W.3d  762 \n(claimant  must  have  a “personal  stake”  in  outcome  of  controversy  in  order  to  have \nstanding  regarding  such).  For  these  reasons,  Issue  No.  1  will  not  be  addressed.  \nInstead, it will be considered reserved. \nB. Controversion \n In  addition,  Claimant  has  argued  that  his  attorney  should  be  entitled  to  a \ncontroverted fee in connection with the permanent partial disability benefits he received \nfor the permanent impairment of his right upper extremity.   Boiled down, his position is \nthat  counsel’s efforts  resulted  in  Respondents  using a  different provision  of  the  statute \nthat  governs  the  valuation  of  his  permanent  partial  disability  benefits;  that  in  the \nprocess,  the  amount  of  benefits  that  he  received  increased;  and  that  counsel  should \ncollect a statutory fee on the amount of this increase. \n Arkansas  Code  Annotated  Section  11-9-715  (Repl.  2012)  is the  authority  in  this \nmatter.  This provision reads in pertinent part: \n(B) Attorney’s fees shall be twenty-five percent (25%) of compensation for \nindemnity  benefits  payable  to  the  injured  employee  or  dependents  of  a \ndeceased employee . . . In all other cases whenever the commission finds \nthat  a  claim  has  been  controverted,  in  whole  or  in  part,  the  commission \nshall  direct  that  fees  for  legal  services  be  paid  to  the  attorney  for  the \nclaimant as follows:  One-half (½) by the employer or carrier in addition to \ncompensation  awarded;  and  one-half  (½)  by  the  injured  employee  or \ndependents  of  a  deceased  employee  out  of  compensation  payable  to \nthem. \n\nNORRIS – H107730 \n \n12 \n \n (ii) The fees shall be allowed only on the amount of compensation \nfor indemnity benefits controverted and awarded. \n \nId.  §  11-9-715(a)(1)(B)  &  (a)(2)(B)(i)-(ii).  One  of  the  purposes  of  the  attorney's  fee \nstatute  is  to  put  the  economic  burden  of  litigation  on  the  party  who  makes  litigation \nnecessary.  Brass v. Weller, 23 Ark. App. 193, 745 S.W.2d 647 (1998). \n The evidence reflects that on January 26, 2022, Dr. Mark Tait assigned Claimant \nan  impairment  rating  in  connection  with  his  stipulated  right  upper  extremity  injury, \nwriting: \n[T]his  is  an  established  patient  who  has  been  followed  for  antecubital \nfossa wound after arm revascularization work injury on 09/14/2021 . . . [i]n \naccordance   with   the   American   Medical   Asociation   [G]uides   to   the \n[E]valuation   of   [P]ermanent   [I]mpairment   4\nth\n   [Edition].      Patient   has \nimpairment  of  wrist  looking  at  figure  26/29/35  on  pages  3/36,  3/38,  and \n3/41  of  6%  of  upper  extremity  and  [o]n  page  3/30  to,  3/33,  and 3/30 \nfigures  19/21/23  patient  has  impairment  as  follows:    Index –  4%,  long – \n3%, right – 2%, small -0%.  On page 3/18 and 3/19 [o]n table 1 and 2 this \nis  a  2%  loss  of  hand  function.    He  also  has  significant  decreased  grip \nstrength.    Therefore  has  as  an  8%  loss  due  to  motion  and  an  additional \n5% loss secondary to likely permanent grip strength loss.  Therefore 13% \npermanent impairment of the upper extremity is representative of his long-\nterm requirement [sic]. \n \nPer DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 730 (30\nth\n ed. 2003),“cubital fossa” is \n“the depression in the anterior region of the elbow.”  Injuries at or above the elbow are \ngoverned  by  § 11-9-521(a)(1),  which  sets  the  amount  of  total  loss  as  being  worth  244 \nweeks’ worth of benefits.  Injuries between the elbow and the wrist, on the other hand, \nare entitled only to a maximum of 183 weeks under § 11-9-521(a)(2). \n A thirteen  percent  (13%)  rating  thus  merits  31.72  weeks  under  the  former \nprovision,  and  only  23.79  weeks  under  the  latter.  In  a  letter  to  Claimant  from  Sayre \n\nNORRIS – H107730 \n \n13 \ndated February 15, 2022, that is in evidence, she informed Claimant that the rating that \nTait assigned him “equals 23.79 weeks at your permanent partial compensation rate of \n$440.00 for a total dollar figure of $10,467.60.”  This miscalculation, per the evidentiary \nrecord,  remained  unchanged  until  Claimant’s  counsel  filed  his  second  prehearing \nquestionnaire  response  on  August  11,  2022.    Therein,  counsel  included  the  following \ncontention: \nDr. Tait assigned the Claimant a 13% impairment rating to the right upper \nextremity  for  the  distal  biceps  injury.    The  Claimant  should  have  been \nentitled  to  31.72  weeks  for  same.    Respondents  paid  the  Claimant  23.79 \nweeks in that they used elbow to wrist (183 weeks).  Claimant is entitled to \nthe  underpayment  on  the  rating  and  the  undersigned  is  entitled  to  an \nattorney’s fee for same. \n \nThereafter, on September 13, 2022, Respondents’ co-counsel sent Claimant’s attorney \na  letter  and  spreadsheet  indicating  that  $14,080.00\n2\n  had  been  paid  toward  his  upper \nand  lower  extremity  ratings,  and  that  $7,972.80  remained  unpaid.    Claimant’s  lower \nextremity   rating   is   worth   $8,096.00.      That   means   that   Respondents   in   this \ncorrespondence  conceded  at  that  point  that  the  upper  extremity  rating  was actually \nworth $13,956.80, or 31.72 weeks’ worth of benefits.  They repeated this concession at \nthe hearing, agreeing to Stipulation No. 4. \n During  Sayre’s  testimony,  she  related  that  the  impairment  rating  was  initially \napplied against the 183-week standard because (in the words of Respondents’ counsel) \n“[there  was]  no  real  indication  there  was  elbow  involvement.”  [T.  46]    However,  the \n \n \n2\nAccording  to  the  spreadsheet  in  evidence,  Respondents  have  been  paying \npermanent  partial  disability  benefits  at  the  rate  of  $440.00  per  week.    This  is  slightly \nhigher than his stipulated compensation rate, $439.00.  See infra. \n\nNORRIS – H107730 \n \n14 \nanalysis above clearly shows otherwise.  As to the reason and timing of Respondents’ \nchange to the 244-week standard,  the following exchange took place when Sayre was \non the witness stand: \nQ. And  at  some  point  and  time,  why  is  that  you  accepted  the  244 \nweeks instead of the 183? \n \nA. I[t]  was  brought  to  my  attention  with  communication  review  that  it \nwas  calculated  at  the  incorrect  rate,  and  at  that  point  I  saw  what \nhappened and accepted that is correct; it should be at the 244. \n \nQ. And was that in April of ’22? \n \nA. I believe it was—yes, ’22. \n \nQ. Okay. \n \nA. I forgot what year it was. \n \nQ. And did you ever send a letter to the Claimant after that? \n \nA. No. \n \nQ. Is there a reason why? \n \nA. I  can  assume  it  wasn’t  sent.    It  was  not  scanned  in  our  system.  \nThere was really no reason. \n \n[T. 47-48] \n Sayre  did  not  explain  the  source  of  this “communication”  that  she  reviewed.  \nFurthermore, she could not remember what year this change in position occurred, even \nthough  it  purportedly  happened  only  approximately  six  months  prior  to  the  hearing.  \nFinally, Sayre offered no explanation why there was no communication to Claimant after \nthis  purported  change in  April  2022.    Instead,  the  evidence  bears  out  that  such  a \ncommunication  did  take  place:    by  way  of  the  September  13,  2022,  letter  from \n\nNORRIS – H107730 \n \n15 \nRespondents’  co-counsel,  which  came  slightly  more  than  a  month  after  Claimant’s \nsecond  pre-hearing  questionnaire  response.    In  resolving  an  issue  such  as  the  one  at \nbar, the undersigned under Ark. Code Ann. § 11-9-704(c)(4) (Repl. 2012)  must “weigh \nthe evidence impartially and without giving the benefit of the doubt to any party.”  As the \nparty requesting award of the controverted fee, Claimant under Ark. Code Ann. § 11-9-\n705(a)(3)   (Repl.  2012)   must   prove   his  entitlement   to  the   relief   requested  by   a \npreponderance  of  the  evidence.    This  standard  means  the  evidence  having  greater \nweight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 S.W.3d 415; Smith v. \nMagnet  Cove  Barium  Corp.,  212  Ark.  491,  206 S.W.2d  442  (1947).  I  cannot  credit \nSayre’s  testimony  on  this  point.    Instead,  the  evidence  shows  that  it  was  the  efforts  of \nClaimant’s  counsel  that  led  to  Respondents’ d ecision  to  apply the  impairment  rating  to \nthe 244-week standard. \n Thus, Claimant has proven by a preponderance of the evidence establishes that \nhis counsel is entitled to a controverted fee under  § 11-9-715 on 31.72 – 23.79 = 7.93 \nweeks’  worth  of  permanent  partial  disability  benefits  to  which  Claimant  is  entitled  in \nconnection  with  his  stipulated compensable  right  upper  extremity  injury.    At  his \nstipulated  permanent  partial  disability  rate  of  $439.00  per  week,  this  fee  is  valued  at \n$870.32.    Claimant  and  Respondents  each  owe  half,  or  $435.16,  under  the  above-\nquoted statutory provision; and such should be paid in accordance therewith. \nCONCLUSION AND AWARD \n Judgment  is  hereby  rendered  in  accordance  with  the  findings  of  fact  and \nconclusions of law set forth above. \n\nNORRIS – H107730 \n \n16 \n IT IS SO ORDERED. \n \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","textLength":26871,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H107730 GARY W. NORRIS, EMPLOYEE CLAIMANT CITY OF NORTH LITTLE ROCK, SELF-INSURED EMPLOYER RESPONDENT ARK. MUN. LEAGUE, THIRD-PARTY ADMINISTRATOR RESPONDENT OPINION FILED JANUARY 18, 2023 Hearing before Administrative Law Judge O. Milton Fine II on October 25...","outcome":"granted","outcomeKeywords":["granted:1"],"injuryKeywords":["knee","wrist"],"fetchedAt":"2026-05-19T23:11:33.754Z"},{"id":"alj-H201972-2023-01-17","awccNumber":"H201972","decisionDate":"2023-01-17","decisionYear":2023,"opinionType":"alj","claimantName":"James Beauchamp","employerName":"Conagra Foods Packaged Foods LLC","title":"BEAUCHAMP VS. CONAGRA FOODS PACKAGED FOODS LLC AWCC# H201972 JANUARY 17, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BEAUCHAMP_JAMES_H201972_20230117.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BEAUCHAMP_JAMES_H201972_20230117.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H201972 \n \nJAMES BEAUCHAMP, Employee                                                                              CLAIMANT \n \nCONAGRA FOODS PACKAGED FOODS LLC, Employer                              RESPONDENT \n \nBROADSPIRE SERVICES INC., Carrier                                                              RESPONDENT \n \n \n OPINION FILED JANUARY 17, 2023 \n \n \nCase submitted on the record  before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in \nSpringdale, Washington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On  November  10,  2022,  the  above  captioned  claim  came  on  for  hearing  at  Springdale, \nArkansas.  A pre-hearing conference was conducted on September 15, 2022, and a pre-hearing order \nwas filed on that same date.  A copy of the prehearing order has been marked as Commission’s Exhibit \nNo.1 and is made part of the record without objection. \n At the prehearing conference the parties agreed to the following stipulations: \n1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n2.         The employee/employer/carrier relationship existed on January 4, 2022. \n3.         The respondents have controverted the claim regarding claimant’s right hip and pelvis. \n By agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n           1.  Whether  claimant  sustained  a  compensable  injury  on  January  4,  2022,  regarding  his \n\nBeauchamp-H201972 \n \n2 \n \nright hip and pelvis. \n           2. If compensable, whether claimant is entitled to temporary total disability benefits, and \nmedical benefits. \n            3. Compensation rate. \n            4.   Attorney fees. \n All other issues are reserved by the parties. \n  The claimant contends that “he is entitled to medical treatment for his right hip and \npelvic fractures in addition to treatment respondents are providing for his left hip. Claimant contends \nhe  is  entitled  to  temporary  total  disability  benefits  from  the  date  last  worked  to  a  date  yet  to  be \ndetermined. The claimant reserves all other issues.” \n The respondents contend that “claimant did not suffer a right hip injury on or about January \n4, 2022. Respondents further contend that in the event compensability is found, the medical records \ndo not support entitlement to medical treatment or indemnity benefits for the right hip.” \n From  a  review  of  the  record  as  a  whole,  including  medical  reports,  documents,  and  other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of the \nclaimant and to observe his demeanor, the following findings of fact and conclusions of law are made \nin accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nFebruary 15, 2022 and contained in a pre-hearing order filed that same date are hereby accepted as \nfact.  \n 2.  Claimant has met his burden of proving that he suffered a compensable injury to his right \nhip and pelvis on January 5, 2022. \n\nBeauchamp-H01972 \n3 \n \n \n 3.      Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical  treatment \nprovided in connection with claimant's compensable injuries. \n 4.   Claimant is entitled to temporary total disability benefits beginning  January 4, 2022, the \ndate of his injury, less any payments he received for working light duty before February 17, 2022. \n5. Respondent has controverted claimant's entitlement to all unpaid indemnity benefits. \n FACTUAL BACKGROUND \n At the hearing, the parties advised they would attempt to reach an agreement on claimant’s \naverage  weekly  wage  and  advise  me  if  they  did  so.    After  the  hearing,  the  parties  stipulated  to  an \naverage weekly wage of $925.36, making the temporary total disability rate $617.00 per week.   \nHEARING TESTIMONY \n \n Claimant had been employed with Con-Agra for twenty-five years when on January 4, 2022, \nhe  tripped  and  fell  on  his  left  hip  and  knee.  He  was  immediately  taken  to  Arkansas  Occupational \nMedicine Services where he was examined by physician assistant, Daniel Nicholas. Claimant said he \nwas bruised from his left knee up to his hip. As the bruising went away, claimant stated he was going \nto therapy and his right side was hurting more than his left, then the pain went completely across his \nlower back. \n Claimant saw a couple of orthopedic physicians, Dr. Mark Allard and Dr. Matthew Coker, but \ndid not receive relief from them. He also saw his family doctor, Joseph O’Connell. Dr. O’Connell \nprescribed Oxycodone for claimant and ordered an MRI. He later saw Dr. Christopher Dougherty \nwho ordered aqua therapy. \n Claimant testified that following his fall, he has had difficulties both walking or sitting for any \nextended length of time. He first used crutches, but those did not help and now uses a walker. Claimant \nsaid he could not work at Con-Agra because he walked about twelve miles a day there during a ten-\n\nBeauchamp-H201972 \n \n4 \n \nto-twelve-hour  shift  and  he  could  not  do  that.  He  did  some  light  duty  but  eventually  his  doctor \nremoved him from work entirely. \n Claimant  said  when  he  went  shopping  with  his  wife  on  the  weekend,  he  used  a  buggy  but \nthought that was embarrassing. He now uses his walker but must take frequent rest breaks. Claimant \nsaid he tries to help around the house but is limited to five to fifteen minutes at a time. Claimant stated \nthat he needs help putting his shoes and socks on and getting in and out of the bathtub. \n Claimant  disputed  what  nurse  practitioner  Daniel  Nicholas  had  in  his  medical  records  that \nupon his examination of claimant’s right hip, there was no bruising, swelling, and a normal range of \nmotion.  \n On  cross-examination,  respondent  asked  claimant  about  his  various  statements  about  the \nonset of his pain in his right hip.  Claimant was shown the Employee’s Notice of Injury that he filled \nout on January 6, 2022, which mentioned an injury only to his left hip and left knee, and he verified \nthat is what he reported at the time of the fall.  During his deposition, claimant said he first experienced \nright hip pain in therapy at Arkansas Occupational Health. Claimant was asked about the therapist’s \nrecord on February 1, 2022 that recorded he was sore on a Sunday and the right hip had started hurting \nthat day. Claimant conceded that he had not been at physical therapy on Sunday. Claimant was shown \nhis deposition testimony where he stated that the right hip discomfort started before therapy. Claimant \nwas then asked about his deposition testimony where he said the right hip pain started while doing \nlight  duty  at  Con-Agra,  but  he  did  not  report  it  to  anyone  at  Con-Agra.  He  also  thought  that  the \ncrutches he was using may have caused his right hip pain. Although his medical records said that he \nhad gone shopping with his wife and three-year-old grandson, claimant denied that his grandson had \nbeen shopping with him since he was hurt. Claimant responded that he had seen his grandson but had \nnot  gone  shopping  with  him.  He  did  not  know  how  the  entry  was  placed  in  his  records  that  said \n\nBeauchamp-H01972 \n5 \n \n \notherwise.  \n Claimant  was  asked  about  a  notation  in  his  therapy  records  that  on  January  27,  2022  and \nFebruary 1, 2022 it was noted that he had a contusion on his right hip. Claimant stated that he had \nnever had a bruise on his right hip and that entry in his records was not true. Claimant was also asked \nabout his testimony in his deposition where he quoted Dr. Allard as saying “Your left hip is fine. You \nare fine to go back to work.” Claimant said he did not remember being released to go back to work. \nClaimant said the pain in his right hip began after the bruising had gone away from his left hip, and \nhe started feeling pain all the way across; claimant believed that was approximately three weeks after \nthe injury to his left hip. Claimant had no explanation as to why the physical therapist made this entry \non February 1, 2022, which stated that the diagnosis was “contusion of right hip”. \n On redirect examination, claimant said that he had not had an incident after his fall at Con-\nAgra where he had injured any part of his body. He believed the pain in the right hip was a gradual \nthing.  \n Claimant was then shown testimony from his deposition where he was asked:  \nQ: (BY MR. PARRISH): Correct me if I am saying this wrong. It is my \nunderstanding that you were saying the right hip pain started in therapy? \nA:  Yeah. Well no. It was before the therapy because I couldn’t get up on \nthe bed. I could get up on my left side, but I couldn’t get there on my right \nside. I had to go to the other side of the bed to get on top of it because I \ncouldn’t get up on the right side at all... \n \nQ: OK. So, let’s circle back. When I asked you earlier what you were doing \nwhen the right hip pain stated, you told me you were in therapy, but now \nyou say it was before therapy even started, right? \nA: I don’t remember. I am not trying to lie to you. I just don’t really \nremember when it started. All I know is it was very painful. \n \n Claimant recalled telling the physical therapist at some point his left hip was feeling better and \nit was the right hip that was bothering him. [This is reflected in the February 1, 2022, record from the \nphysical therapist, reviewed below.] Claimant was then shown this portion of his deposition testimony: \n\nBeauchamp-H201972 \n \n6 \n \nQ:  (BY  MR.  PARRISH):  Have  you  told  any  of  your  doctors  anything \nabout shopping with your wife and having onset of right sided problems?  \nA: I went shopping with my wife. I used my walker and I get in one of \nthem little buggies and every little bump I hit it hurts. \n \nQ: My question was did you make any statement to your doctors about \nshopping with your wife at the time your right sided problems started? \nA: I don’t think so. And from shopping with my wife, I don’t carry the \ngroceries in. She won’t let me do nothing. \n \nQ: So how do you maintain that your right hip pain that you were telling \nme about is related to falling on your left side. \nA. Because I broke my pelvis. \n \nQ. You maintain that the pelvis break was related to the fall? \nA. I know it is because I haven’t fallen since. \n \n On recross examination, the following exchange took place: \nQ: (BY MR. PARRISH) Sir you were asked about your testimony at one \npoint  in  the  deposition  where  you  said  your  right  hip  problems  started \nbefore therapy. That is what your attorney just directed you to. Do you \nremember that? \nA: Okay yes. \n \nQ: Okay you agree with me that I am not making this up that you said \nyour problems started in therapy at one point in the depo? \nA: “I probably did” \n \nQ:  And at one point you said it started at home while doing therapy? \nA: That could be too. I have said it happened in therapy and I meant at \nhome, but I don’t know where it started, or when it started, okay? I don’t \nknow how it started. \n \nQ:  You  agree  you  have  given  five  if  not  six  different  explanations  for \nwhen the right hip problems started? \nA: “I have given you five or six answers to what I think might have caused \nit. \n \nQ: Okay? \nA: I don’t know.  \n \n           Claimant again said he had no explanation of the documentation of the right hip contusion in \nhis medical records at the end of January. \n\nBeauchamp-H01972 \n7 \n \n \n On redirect examination claimant said he had no problems with his right hip before he fell at \nCon-Agra nor with his left hip. He first reported the pain in his right hip to the therapist because he \ndidn’t see the doctors after he first noticed it.  \n On recross examination, claimant did not deny that there was an examination of his right hip, \nbut he was disputing what was written regarding that examination. He said he didn’t know if there was \nan examination as documented in the records from the Arkansas Occupational Health. \n On redirect examination, claimant said he didn’t think that the nurse practitioner examining \nhim tried to  move his right  leg, but he didn’t remember. He was concerned with his left leg at the \ntime. He eventually said that P.A. Nicholas probably moved his leg around on the first visit, but he \ndidn’t really remember; on the second visit, he recalled his left leg was moved but he did not remember \nif his right leg had been moved around. \n REVIEW OF MEDICAL RECORDS EXHIBITS \n             When Claimant fell on January 4, 2022, he was taken to the Arkansas Occupational Medicines \nServices and examined by Daniel Nicholas, P.A. P.A. Nicholas continued to follow claimant for the \nnext couple of weeks and there was no mention of any pain in claimant’s right hip. On January 27, \n2022 claimant began a course of physical therapy at NWA Physical Ability Testing Center (NWA). \nThe first record relates the history claimant gave: “His feet became caught in some pallet strapping \ncausing him to fall, hitting his left knee and left hip on the floor. The chief complaint was pain in the \nleft hip, difficulty walking.” The physical therapy examination on that date showed claimant had good \nactive range of motion as well as passive range of motion on his right hip, but markedly less range of \nmotion on his left hip.\n1\n On February 1, 2022, the subjective portion of the report states “James states \n \n1\n As discussed below, I have concluded that the diagnosis portion of the January 27, 2022, record was a coding error \nwhich resulted in an entry of a contusion of the right hip when no such contusion existed. \n\nBeauchamp-H201972 \n \n8 \n \nhe was really sore on Sunday and it’s the right hip hurting today, along with the middle low back. He \ntells me that his left  hip is doing fine. He mentioned the pain management and asked if he needed \nthat.” Brandon Peyton, the physical therapist, recorded under the assessment portion of the report \n“He says his pain is more on the right side today and the low back. He tells me hip ER and IR caused \na little pain in the mid low back. He may have overdone the HEP this weekend so we talked about \nnot doing more than he can handle.” From there, claimant’s complaints are largely with his right hip \nand right lower back. In summary, the physical therapy records from January 27, 2022, showed no \nproblem on claimant’s right hip, but on February 1, 2022, the right hip became the primary complaint.  \n Claimant returned to Arkansas Occupational Medicine Services on February 8, 2022, and again \nsaw physician assistant Nicholas. Consistent with what he said at physical therapy, claimant said his \nleft hip was getting better but his right hip was getting worse. PA Nicholas recorded in the comments \non the history of the present illness “James has significant improvement in his left hip. He has \ndeveloped severe right hip pain with no specific injury.”   \n Claimant testified he went to see his family physician when he felt he was not getting better \nand saw Dr. Joseph O’Connell on February 9, 2022. Dr. O’Connell believed that claimant needed a \npelvic x-ray and administered therapeutic injections of Toradol and Betamethasone. \n Dr. Mark Allard at Northwest Physicians was the next doctor to examine claimant. Dr. Allard \nordered  x-rays of claimant’s right hip and found “radiographic findings: evidence of osteoarticular \nabnormality; he has got some early osteoarthritis of the right hip with some joint space narrowing and \nosteophyte formation. None on the left side. No evidence of fracture.” Dr. Allard assessed claimant \nwith a lumbar back strain and recommended that an MRI be performed. After reviewing only the x-\nray, Dr. Allard opined “it is my medical opinion this is likely due to overuse two weeks ago and is not \ndirectly related to his work-related injury from six weeks ago.” Dr. Allard did not schedule another \n\nBeauchamp-H01972 \n9 \n \n \nappointment for claimant but said he could return as needed.  \n When claimant failed to make much progress, on February 23, 2022, he returned to see Dr. \nO’Connell. Dr. O’Connell saw claimant again on both March 8, 2022 and April 5, 2022.  He ordered \nan MRI, which was performed on April 13. The impression from the MRI was: \n“acute or subacute, mildly displaced fractures of the left superior and \nleft inferior pubic rami. Nondisplaced acute or subacute fracture of the \nright  sacral  ala.  No  fracture  of  either  proximal  femora.  Findings  of \nfemoroacetabular impingement of each hip, a chronic finding. On this \nMRI of the right hip, abnormal signal in the superior aspect of the right \nacetabular labrum is consistent with chronic degeneration of the labrum \nrelated to the femoroacetabular impingement.”  \n \n  Claimant  saw  Dr.  Matthew  Coker  on  April  28,  2022.  Dr.  Coker  recited  the  history  to  that \npoint and reviewed the findings from the MRI.  He recorded claimant “was also subsequently found \nto have a right sacral alae fracture. He did develop some right hip pain, but this was not associated \nwith the fall on the left side. It started to bother him a few weeks later. The left side is a work-related \ninjury, but the right side is not considered a work-related injury.”  \n Claimant  was  admitted  to  Encompass  Health  Rehabilitation  Hospital  on  June  15,  2022  for \ninpatient physical therapy. It is unclear who the referring physician was for this course of rehabilitation, \nand nothing about it provided useful information regarding the issues in this case.  \n Following his discharge from Encompass, claimant began seeing Dr. Christopher Dougherty \non June 22, 2022. In the assessment and plan following the August 3, 2022 visit, Dr. Dougherty stated \nthat a CT scan showed “a left superior/inferior pubic ramus fracture and a right fracture of the aspect \nsacrum.” Dr. Dougherty directly attributed the fractures to claimant’s fall at work and stated the \nclaimant was not able to do even sedentary work due to the factures. He referred claimant to aqua \ntherapy at Trinity Rehabilitation, where claimant completed all physical therapy sessions which were \nallowed by his insurance company. The physical therapist, Thomas Curtner, said “his injuries are a \n\nBeauchamp-H201972 \n \n10 \n \nresult  of  a  work-related  incident,  and  he  will  be  transitioning  his  plan  of  care  to  be  covered  by  his \nemployer’s workers’ compensation insurance.” Claimant’s therapy included treatment for both his left \nand right side.  \n The final record introduced was a letter from Dr. O’Connell dated November 2, 2022.  Dr. \nO’Connell stated that he has been claimant’s primary care physician for over ten years and said \nclaimant “has never had issues with his hips or pelvis.” \nADJUDICATION \n \nThe issue in this case is if claimant’s right hip injury is related to his admittedly compensable \ninjury  to  his  left  hip  which  occurred  in  a  fall  on  January  4,  2022.  While claimant’s testimony was \nsomewhat confusing on the onset of his right hip pain, in reviewing the entire record, I find that he \nhas shown by a preponderance of the evidence that his right hip injury was incurred during that fall.  \nRespondent pointed out the various answers claimant gave in his deposition testimony and in \nthe  medical  records  as  to  when  the  pain  in  his  right  hip  began.  Claimant  conceded  that  at  various \ntimes, he placed the onset of the issues with his right hip before he started therapy, due to the use of \ncrutches, while working light duty, as the result of a therapy session and on a Sunday when he didn’t \nhave therapy. He denied an entry in a doctor’s report that he had gone shopping with his wife and \ngrandson and couldn’t walk the next day.  When pressed on the different answers as to when and how \nhis right hip started hurting, claimant said he had given those answers as possible causes, because he \ndidn’t know what the cause was or just when the pain in  his right hip started. His efforts to give a \ncause for how and when the right hip pain started caused more confusion than clarity, but I do not \nfind those answers were given in an effort to deceive respondent or this court.  \nA review of the physical therapy records gives the likely answer as to when the right hip began \nto cause claimant a problem. Respondent asked claimant about the entries on the February 1, 2022. \n\nBeauchamp-H01972 \n11 \n \n \nreport  from  NWA, which is the first record regarding an issue  with claimant’s right hip.  The \nquestioning  focused  on  why  claimant  disputed  having  a  contusion  on  his  right  hip  on  that  day.  \nHowever, claimant was not asked about the NWA record of January 27, 2022, in which claimant was \nnot  complaining  of  any  issues  with  his  right  hip,  but  rather  was  treated  for  left  hip  discomfort.   I \nbelieve it would be unusual for a person doing physical therapy to be asked to disrobe for an inspection \nof a hip that had already been examined by the referring physician’s assistant.  It was also odd that \nevery  diagnosis—even  the  fifth  one—continued  to  refer  to  the  visit  as  an  initial  encounter.   I  am \nconvinced the entry for the right hip on the first visit was a coding error and was not corrected during \nclaimant’s course of treatment with NWA.  Each  visit  was  coded  with  S70.01XA,  the  code  for  a \n“contusion of the right hip, initial encounter,” but claimant did not complain of any issues with his \nright    hip    on    his    first    visit    to    NWA.    (See \nhttps://icdlist.com/icd-10/S70.01XA    and \nhttps://icdlist.com/icd-10/S70.02XA for the medical codes for contusions to the right and left hip, \ninitial encounter, respectively.) \nAs  such,  I  find claimant’s testimony that he did not have bruising on his right hip  to  be \ncredible, and the physical therapy entries that reflected the presence of a contusion on his right hip \nwas  a  mistake  made  by  someone  at  NWA  in  coding  the  first  visit.  That  mistake  led  respondent  to \nbelieve claimant had a contusion on his right hip when none existed.  \nI also noted that there were no radiograph tests other than X-rays made of claimant’s right hip \nbefore April 13, 2022.  X-rays alone frequently do not show the type of sacral fracture that can be \nseen by an MRI.\n2\n As that was all Dr. Allard ordered, I give no weight to his opinion that the condition \n \n2\n See SACRAL FRACTURES: CURRENT STRATEGIES IN DIAGNOSIS AND MANAGEMENT \nhttps://pubmed.ncbi.nlm.nih.gov/19824583/:  “While displaced fractures can be easily diagnosed on high quality \nplain radiographs, nondisplaced or transverse fracture patterns may be difficult to diagnose without a computed \ntomography scan. Once identified, correct classification of a sacral fracture can facilitate ideal treatment strategies.”  \n\nBeauchamp-H201972 \n \n12 \n \nhe saw on February 17, 2022, was “not directly related to his work-related injury from 6 weeks ago.”   \n Dr. Coker had the benefit of the MRI results and recognized the right sacral fracture.   The \nwording of his opinion is a bit vague as it relates to the connection between claimant’s fall on his left \nhip and the pain in his right hip: “The left side is a work-related  injury  but  the  right  side  is  not \nconsidered  a  work-related injury.” (Emphasis  added)  It  is  unclear  if  the  right  hip  issues  were  not \nconsidered a  work-related  injury  by  Dr.  Coker,  or  not  considered  to  be  such by  the workers’ \ncompensation carrier.  It is evident Dr. Coker’s staff had been contacted by the adjuster for the carrier \nprior to examining claimant on April 28, 2022,  because the contact information for that adjuster is \nprovided under the heading “Patient’s Care Team.”  From  this  wording,  I cannot  tell  if  Dr.  Coker \nmade an independent evaluation on whether the right hip injury was related to the fall, or recited what \nhe had been told by the carrier about a right hip claim.    \n I am most persuaded by Dr. Dougherty’s unequivocal statement in his August 8, 2022 record.  \nAfter noting fractures on claimant’s left and right side, he stated “All of these fractures are directly \nrelated to his fall at work.” The Arkansas Supreme Court in Wal-Mart Stores, Inc. v. VanWagner, 337 \nArk. 443, 447, 990 S.W.2d 522, 524 (1999) stated \"The plethora of possible causes for work-related \ninjuries includes many that can be established by common-sense observation and deduction.”  Relating \na fracture on the right side of claimant’s hip from a violent fall on his left  side  does  not  require \nspeculation or guesswork; that claimant was initially focused on the damage to his bruised left side is \nnot hard to understand.  Any of the various possibilities claimant put forward—or a combination of \nthem—could have caused the fractures on the right side to become symptomatic.  Dr. Dougherty’s \nattribution of the right sacral ala fracture to the January 4, 2022, fall is consistent with the testimony \nand  with  the  radiographic  evidence  from  April  13,  2022  through  August  8,  2022.    As  such,  I  find \n\nBeauchamp-H01972 \n13 \n \n \nclaimant has proven by a preponderance of the evidence his right hip and pelvis injury is compensable.\n3\n   \n Having decided in claimant’s favor on the issue of compensability, I turn now to the medical \nand  indemnity benefits award. I am convinced that all of claimant’s medical treatment  has  been \nreasonable and necessary.  It is evident that he did not receive appropriate care early in the  process \nand  was  reasonable  in  going  to  his  own  doctor to  seek  the  treatment  he  was  not  provided  by \nrespondent.  He is entitled to reimbursement for any out-of-pocket medical expenses he incurred. \n I further find that claimant has not been able to work since he last performed light duty work \nfor Con-Agra.  Dr. Allard removed him from work on February 17, 2022, and I did not find that any \nphysician  returned  him  to  work  at  even  light  duty  after  that  time.    I  find  claimant  is  entitled  to \ntemporary  total  disability  benefits  from  the  last  day  he  worked  for  Con-Agra  until  the  date  of  the \nhearing.\n4\n \nORDER \n \n Respondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \n \n3\n  While  I  was  asked  to  decide  the  compensability  of  the  right  hip  injury,  it  should be  noted  that  claimant  received \ntreatment from Encompass, Dr. Dougherty, and Trinity Rehabilitation for the injury to his left hip during 2022.  So \nthere is no confusion, my finding is that the pelvic injuries—both sides-- are compensable and presently disabling.  \n4\n The precise day claimant ceased working light duty was not provided during the hearing.  Further, while \nrespondent put on evidence of payments to claimant through a short-term disability policy provided entirely by the \nrespondent employer, a request for a credit or offset pursuant to §11-9-411 was not made an issue in this matter. I \ncannot address it sua sponte, so I consider such to be a reserved issue as per the Prehearing Order.  \n\nBeauchamp-H201972 \n \n14 \n \nAll issues not addressed herein are expressly reserved under the Act. \nRespondent is responsible for paying the court reporter her charges for preparation of the \ntranscript in the amount of $ 795.95 \n \nIT IS SO ORDERED. \n \n \n      _____________________________ \n        JOSEPH C. SELF \n       ADMINISTRATIVE LAW JUDGE","textLength":28250,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201972 JAMES BEAUCHAMP, Employee CLAIMANT CONAGRA FOODS PACKAGED FOODS LLC, Employer RESPONDENT BROADSPIRE SERVICES INC., Carrier RESPONDENT OPINION FILED JANUARY 17, 2023 Case submitted on the record before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Sprin...","outcome":"granted","outcomeKeywords":["granted:3"],"injuryKeywords":["hip","knee","back","fracture","lumbar","strain"],"fetchedAt":"2026-05-19T23:11:29.606Z"},{"id":"alj-H100357-2023-01-13","awccNumber":"H100357","decisionDate":"2023-01-13","decisionYear":2023,"opinionType":"alj","claimantName":"Wyllow Tree","employerName":"Metro Builders & Restoration","title":"TREE VS. METRO BUILDERS & RESTORATION AWCC# H100357 JANUARY 13, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Tree_Wyllow_H100357_20230113.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Tree_Wyllow_H100357_20230113.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H100357 \n \n \nWYLLOW TREE, EMPLOYEE CLAIMANT \n \nMETRO BUILDERS & RESTORATION, \n EMPLOYER RESPONDENT \n \nALLIED EASTERN INDEMN. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 13, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  January  12, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents  represented  by  Mr.  R.  Scott  Zuerker,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  that \nwas filed  by  Respondents.    A  hearing  on  the  motion  was  conducted  on  January \n12,  2023,  in  Little  Rock,  Arkansas.    Claimant,  who  is pro  se,  failed  to appear.  \nRespondents were represented at the hearing by Mr. R. Scott Zuerker, Attorney at \nLaw, of Fort Smith, Arkansas.  The record consists of the Commission’s file, which \nhas been incorporated herein in its entirety by reference without objection. \n The  evidence  reflects  that  per  the  First  Report  of  Injury  or  Illness  filed  on \nJanuary  11,  2021,  Claimant  purportedly  injured  her  right  knee  at  work  on \nDecember 28, 2020.  According to the Forms AR-2 that were filed on January 11 \n\nTREE – H100357 \n2 \n \nand 27, 2021, Respondents accepted the  claim and paid  medical and temporary \ntotal disability benefits pursuant thereto. \n Attorney Laura Beth York entered her appearance on behalf of Claimant on \nApril  8,  2022;  and  on  that  same  date,  she filed  a  Form  AR-C.    Therein,  she \nrequested the full range of initial and additional benefits and alleged that her client \nhurt her “right knee, right ankle, and other whole body” at work on December 20, \n2020.  Respondents’ counsel entered his appearance on April 19, 2022. \n On  June  27,  2022,  York  moved  to  withdraw  from  her  representation  of \nClaimant.  In an Order entered on July 7, 2022, the Full Commission granted the \nmotion under AWCC Advisory 2003-2. \n On  October 11,  2022  ,  Respondents  filed  the  instant  Motion  to  Dismiss.  \nTherein,  they  argued  that  dismissal  was  warranted  under AWCC  R.  099.13  and \nArk.  Code  Ann.  § 11-9-702(a)(4)\n1\n  (Repl.  2012)  because  Claimant  has  not \nrequested a hearing and “has had reasonable time to move forward with this claim \nbut  has  failed  to  do  so.”  The  case  was  assigned  to  Administrative  Law  Judge \nTerry  Don  Lucy on October 12,  2022;  and  on  October  14,  2022,  he  wrote \nClaimant, requesting a response to the motion within 20 days.  The letter was sent \nby first-class and certified mail to the address listed by Claimant on her Form AR-\nC.      The   certified   letter   was   returned   to   the   Commission,   undelivered,   on \nNovember  21,  2022; but  the  first-class  letter  was  not  returned.    Regardless,  no \n \n1\nBecause  this  is  a  claim  for  additional  benefits,  the  applicable  provision  is \nArk. Code Ann. § 11-9-702(d) (Repl. 2012). \n\nTREE – H100357 \n3 \n \nresponse  to  the  motion  was  forthcoming.    On  November  15,  2022,  a  hearing  on \nthe   motion   was   scheduled   for   December   22,   2022,   at   9:30 a.m.   at   the \nCommission  in  Little  Rock.  Later,  on  November  30,  2022,  the  hearing  was \nrescheduled for the same location on January 12, 2023 at 11:30 a.m.  The notice \nwas  sent  to  Claimant  by  first-class  and  certified  mail  at  the  same  address  as \nbefore.   In  this  instance,  the  certified  letter  was  claimed  by  her  on  December  6, \n2022;   and   the   first-class   letter   was   not   returned.      The   evidence   thus \npreponderates that Claimant received notice of the hearing. \n The hearing  on the  Motion to  Dismiss proceeded before me as scheduled \non  January  12,  2023.    Again,  Claimant  failed  to  appear.    But  Respondents \nappeared  through  counsel  and  argued  for  dismissal  of  the  action  under  the \naforementioned authorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nher claim under AWCC R. 099.13. \n\nTREE – H100357 \n4 \n \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC 099.13 reads: \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods, 55  Ark.  App.  83,  85,  929  S.W.2d 730.\n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of this \nmatter—by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \nClaimant has failed to pursue her claim because  she has taken no further action \nin  pursuit  of it  (including  appearing  at  the  January  12,  2023,  hearing  to  argue \nagainst its dismissal) since the filing of her Form AR-C on April 8, 2022.  Thus, the \nevidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  Because  of \nthis finding, it is unnecessary to address the application of § 11-9-702. \n\nTREE – H100357 \n5 \n \n That  leaves  the question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer Co.,  2005  AR Wrk.  Comp. \nLEXIS  5  10,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”  (Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v.  Strong, \n75  Ark.  249,  629  S.W.2d  284  (1982)).  Respondents  at  the hearing  asked  for  a \ndismissal without prejudice.  Based on the above authorities, I agree and find that \nthe dismissal of this claim should be and hereby is entered without prejudice.\n2\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n IT IS SO ORDERED. \n \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n2\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7594,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H100357 WYLLOW TREE, EMPLOYEE CLAIMANT METRO BUILDERS & RESTORATION, EMPLOYER RESPONDENT ALLIED EASTERN INDEMN. CO., CARRIER RESPONDENT OPINION FILED JANUARY 13, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 12, 2023, in Litt...","outcome":"dismissed","outcomeKeywords":["dismissed:7","granted:1"],"injuryKeywords":["knee","ankle"],"fetchedAt":"2026-05-19T23:11:27.527Z"},{"id":"alj-G908137-2023-01-12","awccNumber":"G908137","decisionDate":"2023-01-12","decisionYear":2023,"opinionType":"alj","claimantName":"Lexington Arthur","employerName":"Staffmark Investments, LLC","title":"ARTHUR VS. STAFFMARK INVESTMENTS, LLC AWCC# G908137 AMRNDED JANUARY 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//ARTHUR_LEXINGTON_G908137_20230112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ARTHUR_LEXINGTON_G908137_20230112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G908137 \n \nLEXINGTON S. ARTHUR, \nEMPLOYEE                                                                                                              CLAIMANT \n \nSTAFFMARK INVESTMENTS, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nCCMSI \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nAMENDED OPINION AND ORDER FILED JAUNUARY 12, 2023 \nHOLDING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE IN \nABEYANCE FOR 45 DAYS \n \nHearing conducted on Wednesday, January 4, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge  (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe  claimant,  Mr.  Lexington  S.  Arthur,  pro  se,  of  Hot  Springs,  Garland  County,  Arkansas, \nappeared in person at the hearing.  \n \nThe  respondents  were  represented  by  the  Honorable  Jarrod  Parrish,  Worley,  Wood  &  Parrish, \nLittle Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Wednesday, January 4, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2022) \nLexis  Replacement)  and  Commission  Rule  099.13  (2022  Lexis  Repl.).  The  respondents  filed  a \nletter  motion  to  dismiss  with  the  Commission  on  November  14,  2022,  requesting  this  claim  be \ndismissed without prejudice for lack of prosecution.  \n           In accordance with applicable Arkansas law, the claimant was mailed due and proper legal \nnotice of both the  respondents’ motion to dismiss as well as a copy of the hearing notice at his \ncurrent addresses of record via the United States Postal Service (USPS), First Class Certified Mail,  \n\nLexington S. Arthur, AWCC No. G908137 \n \n2 \n \nReturn Receipt Requested, which he  received on  November 19, 2022. (Commission Exhibit 1). \nBy letter dated November 29, 2022, the claimant attached a copy of the Form AR-C that he initially \nfiled with the Commission. He stated he wanted... \n                     ...to request a continuance of my workers’ compensation claim due  \n                     to additional medical expenses. The employer is aware that I have a  \n                     lifetime of medical procedures required due to my workplace injuries.  \n                     I also need my medical records. \n \n(AWCC File, Claimant’s Letter to the Commission dated November 29, 2022, Claimant’s Exhibit \n1).  \n          The hearing was recessed to allow the claimant (as well as his father and grandmother who \nattended the hearing with him) the opportunity to talk to one of the Commission’s legal advisors \nand, thereafter, to the respondents’ attorney. When the parties went back on the record it appeared \nthere  may  exist  an  issue  as  to  what  extent  the  claimant  may  require  future  medical  treatment – \nspecifically, “continued vascular lab surveillance for life.” (Cl’s Ex. 1A; Respondents’ Ex. 1).  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter by reference. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively demonstrates the claimant has \nneither requested a hearing nor has he taken any action to pursue claim as of the hearing date. \n\nLexington S. Arthur, AWCC No. G908137 \n \n3 \n \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, and as I advised the parties on the record at the hearing, I hereby make \nthe following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. The ALJ will hold in abeyance a decision on the respondents’ subject motion to \n                  dismiss without prejudice for a period of 45 days, or until Monday, February 20, \n                  2023 (since 45 days from the hearing date falls on a Saturday). \n \n      3.         The parties have 45 days from the hearing date, or until Monday, February 20, \n                  2023, to obtain any and all additional information they require and to attempt to  \n                  resolve any and all outstanding issues, if any remain.  \n \n      4.        If, within five (5) days after the expiration of this 45-day time-period the claimant \n                 does not request, in writing (with a copy to the respondents’ attorney, of course), a \n                 hearing before the Commission and advise both the Commission and the \n                 respondents exactly what specific issues he believes are ripe for a hearing, the ALJ \n                 will grant the respondents’ motion to dismiss filed November 14, 2022, without \n                 prejudice, and without the necessity of either the respondents filing another motion, \n                 and without holding another hearing on the motion. \n \n     If they have not already done so, the respondents shall pay the court reporter’s invoice within \n \n twenty (20) days of the filing of this opinion and order. \n \n     IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Mike Pickens \n                                                                                               Administrative Law Judge \n \n \n \nMP/mp","textLength":6127,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G908137 LEXINGTON S. ARTHUR, EMPLOYEE CLAIMANT STAFFMARK INVESTMENTS, LLC, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ CCMSI INSURANCE CARRIER/TPA RESPONDENT AMENDED OPINION AND ORDER FILED JAUNUARY 12, 2023 HOLDING RESPONDENTS’ MOTION TO DISMI...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:11:17.107Z"},{"id":"alj-H102563-2023-01-12","awccNumber":"H102563","decisionDate":"2023-01-12","decisionYear":2023,"opinionType":"alj","claimantName":"Mikalaj Schaeffer","employerName":"Northwest Medical Center","title":"SCHAEFFER VS. NORTHWEST MEDICAL CENTER AWCC# H102563 AMENDED JANUARY 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SCHAEFFER_MIKALAJ_H102563_20230112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCHAEFFER_MIKALAJ_H102563_20230112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H102563 \n \nMIKALA J. SCHAEFFER, Employee                                                                   CLAIMANT \n \nNORTHWEST MEDICAL CENTER, Employer                                   RESPONDENT \n \nGALLAGHER BASSETT, CARRIER/TPA                            RESPONDENT \n \n \n AMENDED OPINION FILED JANUARY 12, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney, Little Rock, Arkansas. \n \nRespondents represented by JAMES A. ARNOLD II, Attorney, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On October 20, 2022, the above captioned claim came on for hearing at Springdale, Arkansas.  \nA pre-hearing conference was conducted on September 1, 2022, and a pre-hearing order was filed on \nthat same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on January 10, 2021. \n 3.   The claimant sustained a compensable injury on January 10, 2021.  \n             4.    The compensation rates are $500.00 for temporary total disability and $375.00 for \npermanent partial disability. \n At the hearing, the parties discussed the issues set forth in Commission Exhibit 1. The \nfollowing were litigated: \n\nSchaeffer-H102563 \n2 \n \n           1. Whether claimant is entitled to additional medical treatment. \n           2.  Whether  claimant  is  entitled  to  additional  temporary  total  disability  benefits  from \nAugust 5, 2021, through December 13, 2021. \n            3. Attorney fees.   \n All other issues were reserved.  \n The  claimant  contends that  “on  January  10,  2021,  claimant  sustained  an  admittedly \ncompensable injury to her left shoulder when her shoulder popped as she was picking up a  tray of \nsurgical  instruments.  Respondents  sent  her  to  Dr.  Heim  at  the  Orthopedic  Center  of  Northwest \nArkansas. Dr. Heim noted that the MRI showed increased signal at the rotator cuff. He gave her an \ninjection  and  prescribed  physical  therapy.  Claimant  reported  back  to  the  Orthopedic  Center  of \nNorthwest  Arkansas and was seen  by  Dr.  Allard,  as  Dr.  Heim  was  off  work  on  medical  leave.  Dr. \nAllard ordered an MR arthrogram. Dr. Allard opined that her injury sounded like a labral tear, but the \nrespondents denied her treatment with Dr. Allard and denied the MR arthrogram. Respondents then \nsent the claimant back to Dr. Heim, who agreed that it sounded like the claimant had a labrum tear \nand ordered a second MRI. On September 14, 2021, Dr. Heim reported that the EMG and MRI were \nnormal  and  released  her  at  maximum  medical  improvement  with  a  0%  rating  and  no  restrictions. \nClaimant then went to Dr. Dougherty who noted that he reviewed the MRI, and it showed an unstable \nbicep tendon due to rupture of the ligament. Dr. Dougherty noted that the tendon was perched on \nthe  spine,  which  explained  her  pain  with  movement.  He  believed  there  was  a  suprascapular  nerve \nentrapment and recommended a diagnostic shoulder arthroscopy. This was denied by the respondents. \nClaimant went to Dr. Earl Brewley, who reviewed the MRI, and noted that it showed clear findings \nof  a  subluxed  labrum  and  recommended  surgery.  Claimant  contends  she  is  entitled  to  medical \ntreatment, temporary total disability, and that her attorney is entitled to an attorney fee. All other issues \n\nSchaeffer-H102563 \n3 \n \nare reserved.” \n The  respondents  contend that “claimant  has  received  all  medical  treatment  and  indemnity \nbenefits to which she is entitled.” \n From  a  review  of  the  record  as  a  whole,  including  medical  reports,  documents,  and  other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of the \nclaimant and to observe her demeanor, the following findings of fact and conclusions of law are made \nin accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1. The Arkansas Workers' Compensation Commission has jurisdiction over this claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant has met her burden of proof by a preponderance of evidence that she is entitled \nto temporary total disability benefits beginning August 5, 2021 and continuing through December \n12, 2021. \n4. Claimant has met her burden of proof by a preponderance of the evidence that she is \nentitled to additional medical benefits from Dr. Christopher Dougherty for her left upper extremity \ninjury. \n5.  Claimant has proven by a preponderance of the evidence that her counsel is entitled to a \ncontroverted attorney's fee on the indemnity benefits awarded herein pursuant to Ark. Code Ann.    \n§ 11-9-715. \n FACTUAL BACKGROUND \n At the close of the hearing, the parties were asked to submit briefs in support of their \nposition.  Those are blue backed to the record of this matter as Commission’s exhibits. \n \n\nSchaeffer-H102563 \n4 \n \n \nHEARING TESTIMONY \n \n Claimant testified on January 10, 2021, that she was working for Northwest Medical Center as \na  certified  surgical  technologist\n1\n.  Claimant  said  that  she  reached  to  pick  up  a  tray  of  surgical \ninstruments.    When  she  lifted  it,  she  felt  her  shoulder  pop.  She  immediately  felt  excruciating  pain, \nwhich she reported to the charge nurse on call that day. Claimant saw Dr. Blake Hansen first and was \nthen referred to Dr. John Heim. Both Dr. Hansen and Dr. Heim referred claimant to physical therapy, \nbut  claimant  said  neither  course  of  physical  therapy  helped.  Dr.  Heim  recommended  an  MRI \narthrogram, and the insurance carrier initially denied it, but eventually it was approved. Claimant also \nunderwent an EMG/MCV. Claimant was working using only her right arm, but believes the repeated \nuse caused it to start hurting. When it was reported to Dr. Heim, he sent her for a functional capacity \nevaluation.  Claimant  said  that  she  did  not  feel  good  after  the  FCE;  she  took  Tylenol  and  iced  her \nshoulders. \n Claimant  stated  that  on  August  4,  2021,  Dr.  Heim  released  her  at  maximum  medical \nimprovement with a permanent light duty restriction. Claimant said that there was no light duty work \nin the operating room and respondent did not provide her with light duty work in another department. \nClaimant testified that her left shoulder was still not functioning properly as she did not have a lot of \ngrip strength in her hand.  \n Claimant felt that she was not getting proper care from Dr. Heim, so she sought and received \na change of physician from Dr. Heim to Dr. Christopher Dougherty. Claimant saw Dr. Dougherty on \nDecember 6, 2021.  Dr. Dougherty had the results of her MRI and nerve conduction study when she \nsaw him; additionally, Dr. Dougherty performed an ultrasound in his office. Claimant said after the \n \n1\n The transcript records that claimant said “certified social technologist” but from the context of her testimony, I \nbelieve this was an error. \n\nSchaeffer-H102563 \n5 \n \n \nexamination, Dr. Dougherty recommended a bicep tendonesis; however, this was denied by the claims \nadjuster for respondent Gallagher Bassett.  She testified that she was taken off work completely at that \nappointment. Despite that restriction from Dr. Dougherty, she began working around December 13, \n2021,  at an eye clinic, which she said was sedentary work. Because claimant was receiving no disability \nbenefits, she was in financial distress, and had to move to North Dakota to be with her family. She \ncurrently works in a position that is a light duty job, which she is able to perform.  \n Claimant said that she went on her own to see Dr. Earl Brewley in North Dakota. After Dr. \nBrewley  reviewed  the  diagnostic  reports  and  examined  claimant,  he  recommended  the  bicep \ntendonesis surgery.  \n Claimant testified that she believes that she has not gotten better since the injury, believing \nthat her left shoulder has either stayed the same or has gotten worse. She requested that the surgery \nrecommended by Dr. Dougherty, Dr. Brewley, and Dr. Aaron Humphreys with Genex be approved \nby the Workers’ Compensation Commission. \n On cross-examination, claimant confirmed that while the MRI arthrogram was initially denied, \nshe did eventually have it. She said that while she would not term what she was doing “light duty \nwork,” Northwest gave her work within her restrictions, and she was paid while she was doing one-\narmed duty. She stated at the time that Dr. Heim released her, he had discussed surgery but had not \nordered it or recommended it. Claimant did not agree with respondent’s counsel that her MRI was \nnormal and disagreed that the MRI arthrogram was normal but did agree that the EMG/MCV test \ndid return a normal result. Claimant said the ultrasound test was done in Dr. Dougherty’s office. She \nagreed that Dr. Heim released her at maximum medical improvement on August 4, with a permanent \nrestriction. She stated that she wasn’t healed but had been released from care; no doctor took her off \nwork   from   August   4   through   December   6,   2021.  Claimant  said  when  Dr.  Dougherty’s \n\nSchaeffer-H102563 \n6 \n \n \nrecommendation for surgery was denied, she didn’t have any choice except  to  go  to  work  on \nDecember 13, 2021. Claimant agreed that she had full and unrestricted passive range of motion in her \narm,  meaning  that  someone  else  could  move  her  arm.  Claimant  stated  that  Dr.  Brewley  was  an \nunauthorized physician that she had to pay for from her own pocket. \n On  redirect-examination,  claimant  said  she  had  no  income  between  August  5, 2021,  and \nDecember  13,  2021.  She  contacted  Northwest,  asking  to  work  anywhere  in  the  hospital,  and  was \nrepeatedly turned down. \nREVIEW OF THE MEDICAL RECORDS \n \n The parties did not duplicate many of the records, and this review will be done in chronological \norder, referring to both claimant’s exhibits as well as respondent’s. \n Claimant began seeing Dr. Blake Hansen on January 11, 2021.  At the initial visit, Dr. Hansen \ndid an x-ray of claimant’s left shoulder, finding no fracture or dislocation. While there are no physical \ntherapy notes submitted, Dr. Hansen discusses claimant’s course of treatment in physical therapy. On \nFebruary 10, 2021, Dr. Hanson made an orthopedic referral but continued to follow claimant until \nshe could see the orthopedist, Dr. John Heim. (CL.X.1-12) \n Claimant had an MRI on February 25, 2021. Both claimant and respondent listed the MRI as \nbeing part of their exhibits, but neither included the entire report (CL.X.13) (R.X.1). However, Dr. \nHansen included the MRI impression in his March 3, 2021, report: \n1.  Mild muscular edema in the infraspinatus muscle belly, this may \n    represent a mild strain.  \n2. Mild tendinosis of the mid and distal supraspinatus tendon. Mild \n    tendinosis of the distal infraspinatus tendon. \n3.  Otherwise, no source for shoulder pain, her shoulder is hurting \n    much worse than before. (CL.X.16) \n \n Claimant had her first appointment with Dr. Heim on March 10, 2021. Dr. Heim gave claimant \na cortisone injection at that first visit. In his discussion notes, Dr. Heim said “her MRI shows some \n\nSchaeffer-H102563 \n7 \n \n \nincreased  signal  at  the  insertion  of  the  rotator  cuff.  I  recommend  at  this  point  that  we  inject  the \nsubacromial  space  and  get  her  back  into  therapy  to  work  on  range  of  motion  modalities  and  cuff \nstrengthening exercises.” (CL.X.22) \n For reasons that are not clear from the records, after her initial visit with Dr. Heim, claimant \nreturned to Dr. Hansen on March 18. It appears Dr. Hansen first suggested the MR arthrogram but \napparently did not offer any treatment on that date. (CL.X.23-27) \n While  Dr.  Heim  was  recovering  from  surgery,  Dr.  Mark  Allard  saw  claimant  on  March  23, \n2021. He suspected that claimant had a labral injury and he too agreed that an MR arthrogram need \nto be done. (CL.X.28-31) Claimant had the MR arthrogram of her left shoulder on April 23, 2021. \nThe impressions as recorded by Dr. Joseph Yancy are as follows: \n1.  Superior labium appears intact. There is mild degenerative frame along the \nlabrum enterally. No discrete tear is seen. \n2.  Intact rotator cuff and long head of biceps tendon. \n3.   Minimal   chondral   thinning   at   the   glenohumeral   joint   with   normal \nsubchondral bone. Normal AC joint. (R.X.6)   \n \nIn his office notes of May 12, 2021, Dr. Heim recorded: \n \n“This patient’s MRI does not reveal any labral or cuff pathology. I \ndo  not  see  a  significant  outlet  obstruction  but  clinically  she  is  not \ndoing well. Passively she has good range of motion and actively she \ndoes not, so we are concerned about a neuromuscular problem. We \nare getting a nerve conduction study and an EMG, and I will see her \nback after these tests.” (CL.X.39) \n \n Following her EMG/NCV, claimant again saw Dr. Heim on June 2, 2021. Dr. Heim noted \nevidence of disuse muscle atrophy. He wanted claimant to go back to therapy to maximize her strength \nand lifted some of her restrictions on her left arm to allow a five-pound weight limit. Dr. Heim did \nnot think she was a surgical candidate at that time. \n Claimant returned to Dr. Heim on July 7, 2021.  His discussion notes mention that claimant \nwas reporting right shoulder pain in addition to that in her left shoulder and was feeling very agitated.  \n\nSchaeffer-H102563 \n8 \n \n \nDr. Heim asked her if she would like to see a therapist, but claimant declined.  “I am concerned about \nthe mental health of this patient, as I believe there is a psychosomatic component to her pathology.”  \nHe  then  referred  claimant  to  Functional  Testing  Centers,  Inc.  for  a  functional  capacity  evaluation \n(FCE), which was performed on July 15, 2021.  During the FCE, claimant continually complained of \npain in her left shoulder, and was unable to perform many of the tasks she was asked to do with her \nleft hand and arm. The examiner failed to notice the atrophy in claimant’s left upper extremity and \ndetermined that she put forth “an unreliable effort” with 32 of 55 consistency measures within \nexpected limits. (R.X. 24-44) \nOn August 4, 2021, Dr. Heim saw claimant and based on the FCE, he believed claimant would \nbe  able  to  function  at  the  light  classification  of  work.  He  stated  claimant  had  reached  maximum \nmedical improvement and released her to return to work within the activity level as defined by the \nresults of the functional capacity evaluation. (CL.X.72), which was “in at least the light classification \nof work.” (R.X. 26).  His record of that date concludes:  \n“Note to provider: Mikala was seen in office today, 08/04/21 to review \nFCE results.  She has been released with the following restrictions: She \nis in the light category of work with occasional bi-manual lift/carry of \nup to 30 pounds.  Lift/carrying of up to 10 pounds on a frequent basis.  \nOccasional RUE  lift  of  25  pounds  and a  LUE lift  of  5  pounds  when \nlifting unilaterally from knuckle to shoulder level.  We can provide an \nimpairment rating if requested without another office visit.”  \n \nDr. Heim was then requested by the claims adjuster to assess an impairment rating. He issued \na  report  dated  September  14, 2021, in which he concluded “claimant does not meet criteria for \npermanent partial impairment.” (R.X.50) Dr. Heim did not explain how claimant was limited to light \nduty without having an anatomical impairment. \n After  being  discharged  from  Dr.  Heim,  claimant  returned  to  Dr.  Hansen  and  saw  him  on \nAugust 9, September 17, and September 22, 2021. It does not appear that Dr. Hansen offered any \n\nSchaeffer-H102563 \n9 \n \n \nform of treatment to claimant. (R.X.14) \n Claimant  received  a  change  of  physician  order  (R.NM.1-4)  and  then  saw  Dr.  Christopher \nDougherty.   After   evaluating   the   existing   records,   Dr.   Dougherty   performed   an   ultrasound \nexamination  which  showed  an  unstable  bicep  tendon  which  he  attributed  to  the  rupture  of  the \ntransverse  humoral  ligament.  Dr.  Dougherty  recommended  surgery,  as  claimant  had  failed a \nconservative care for nine months and surgery was the only option to repair what Dr. Dougherty saw \nduring  the  ultrasound  procedure.  (CL.X.82-90)  Dr.  Aaron  Humphreys  from  Genex  was  asked  by \nrespondent to review the records and agreed with Dr. Dougherty’s assessment; he advised the claims \nadministrator that the surgery that Dr. Dougherty recommended was certified. (CL.X.91-93) \n Following her move from Arkansas, claimant saw Dr. Earl Brewley in Minot, North Dakota \non January 24, 2022. Dr. Brewley was not claimant’s authorized treating physician; Dr. Dougherty was \n(and is) still in that role. On his first examination, Dr. Brewley did not have all her records but when \nshe returned on June 13, 2022, Dr. Brewley saw clear findings of a subluxed labrum on the MRI and \nstated in his assessment and plan that claimant “likely has a symptomatic superior labrum tear, which \nlikely would benefit from a proximal bicep tenodesis verses tenotomy. I did recommend, however, \nthat this patient having additional symptoms could likely benefit from a referral to a neurology and \nassessment.  We  are  still  waiting  for  this  as  this  was  previously  rejected  from  insurance  coverage.” \n(CL.X.94-95, 103) \n Dr.  Theodore  Hronas, a  board-certified  radiologist,  was  asked  to  review  the  radiological \nreports and concluded “there is no objective finding of an acute injury of the rotator cuff, labrum, or \nlong head of the biceps tendon. I agree there is mild chronic supraspinatus tendinosis without tear.” \nDr. Hronas did not mention Dr. Dougherty in his list of reviewed records. (R.X 51-52) \n \n\nSchaeffer-H102563 \n10 \n \n \n \nREVIEW OF THE NON-MEDICAL EXHIBITS \n \n Respondent submitted the order allowing claimant to change physicians entered in November \n2021, and the Form AR-N signed by claimant on January 11, 2021.   \nADJUDICATION \n \n As  set  forth  above,  the  parties  litigated  whether  claimant  was  entitled  to  additional  medical \ntreatment and a period of temporary total disability (TTD).  While there is some overlapping of these \nissues, they will be addressed separately.  \n Is claimant entitled to additional medical treatment? \n  Claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  medical \ntreatment is reasonable and necessary. Goyne v. Crabtree Contracting Company, 2009 Ark. App. 200, 301 \nS.W. 3d 16.  It was stipulated that claimant had a compensable injury on January 10, 2021. Once it has \nbeen  established  that  a  claimant  has  sustained  a  compensable  injury,  she  is  not  required  to  offer \nobjective medical evidence to prove entitlement to additional benefits, Ark. Health Ctr. v. Burnett, 2018 \nArk. App. 427, at 9, 558 S.W.3d 408, 414.  \n As for the proof presented by the parties, I found claimant to be credible in her testimony. \nAlthough a claimant's testimony is never viewed as uncontroverted, the Commission need not reject \nthe claimant's testimony if it finds that testimony worthy of belief. Ringier America v. Combs, 41 Ark. \nApp. 47, 849 S.W.2d 1 (1993). Having had the benefit of seeing claimant testify, I found her to be \ncredible  that  her  arm  has  not  stopped  hurting  since  the  day  of  the  compensable  injury.    It  then \nbecomes a matter of reconciling the doctor’s records with that credible testimony.  \nRespondents rely on the records from Drs. Hansen, Heim, Allard and Hronas.  While I don’t \nbelieve any of these doctors were  wrong in their assessment, I can dispense with three of them quickly.  \nDr.  Hansen provided only conservative care, turning claimant’s treatment over to Dr. Heim when \n\nSchaeffer-H102563 \n11 \n \n \nclaimant did not respond to what Dr. Hansen could provide. Dr. Allard saw claimant on one occasion \nin Dr. Heim’s absence  and  did  not  change claimant’s course  of  treatment.  Dr.  Hronas  never  saw \nclaimant, but only reviewed records that were provided to him.  As noted above, he did not have those \nfrom Dr. Dougherty.  \nThat leaves Dr. Heim’s records to consider, and those are confusing. He didn’t find anything \nhe  would  term  a  permanent  impairment,  yet  he  released  claimant  with  permanent  restrictions.  Dr. \nHeim suggested to claimant that her problem might be psychosomatic, offering mental health services \nto claimant, but she declined. That indicates to me that Dr. Heim believed there was something causing \nclaimant to have the pain and limitations with her arm that she reported but could not find the cause.   \n Claimant  submitted  records  from  Drs.  Dougherty,  Brewley  and  Humphreys.  I  agree  with \nrespondent  that  Dr. Humphreys’  report  is  of  little  use  because  he  utilizes  the  Official  Disability \nGuidelines, which are irrelevant to determining if a course of treatment is reasonable in Arkansas.\n2\n   I \nfound Dr. Brewley’s records to be more useful. Much of what he said was couched in the probable \nrather than the definite, but that is sufficient; a doctor need not be absolute in an opinion or use the \nmagic words \"within a reasonable degree of medical certainty\" so long as his medical opinion be more \nthan speculation, Freeman v. Con-Agra Frozen Foods, 344 Ark. 296 (2001).  I do not see any reference in \nDr. Brewley’s records to the ultrasound performed by Dr. Dougherty, which will be discussed below. \n(I did note the disagreement between Dr. Brewley’s reading of the MRI and the opinion rendered by \nDr.  Hronas.  Without  having  any  information  presented  about  the  qualifications  of  Dr.  Brewley  to \nread and interpret an MRI, I’d be inclined to accept the findings of Dr. Hronas over Dr. Brewley on \n \n2\n  I  found  a  report  by  the  same  doctor  in  2021 was  “not  particularly  helpful” for  that  very  reason,  see Duero  v. \nDoubletree Hotel, 2021 AR WRK. COMP. LEXIS 217.  However, under whatever criteria he used, I find it interesting \nthat  the  doctor  selected  by  respondent to  review  claimant’s  records agreed  with  Dr.  Dougherty’s  opinion,  but  his \nrecommendation to certify the surgery was rejected by respondent.   \n\nSchaeffer-H102563 \n12 \n \n \nwhat the MRI revealed, were that the last word in the matter.)    \n I am most persuaded by Dr. Dougherty’s findings following his examination of claimant on \nDecember 6, 2021. He used a different diagnostic tool than did Dr. Heim by utilizing an ultrasound \nas  part  of  his  examination  and  found “an unstable biceps tendon due to rupture of the transverse \nhumeral  ligament.”  As  claimant  had  not  responded  well  to  conservative  care  for  9  months,  Dr. \nDougherty determined that claimant should be scheduled for “a diagnostic shoulder arthroscopy with \nbicep tenodesis,” as it was the only option for her condition.  In view of all the evidence, including \nclaimant’s credible  testimony,  I  find  claimant  has  met  her  burden  of  proof  that  she  is  entitled  to \nadditional medical treatment.  \n Respondent  raised  an  issue  in  its  brief  about  the  absence  of  the  ultrasound  report  in  the \nexhibits that claimant submitted: “The report of that ultrasound is not in the record although claimant \ntestified that the report is in her medical records.” Claimant’s testimony on direct testimony was indeed \nthat she gathered all her diagnostic tests to take to Dr. Brewley (TR.22) but on cross-examination, she \nwas asked if she said she had a report on the ultrasound, her answer was “it should be in my medical \nrecords.” (TR  28).    As  mentioned  above,  the  ultrasound  was  not  mentioned  by  Dr.  Brewley  in  his \nreport of June 13, 2022. From that, I conclude that Dr. Brewley did not receive it. Claimant testified \nthat the ultrasound was performed by Dr. Dougherty in his office; she watched it on the screen as he \ndid it.  What is recorded in his office notes of that day may be “the ultrasound report,” as it sets forth \nwhat the doctor who performed the test saw on the screen. I would have to assume that Dr. Dougherty \nmade a separate record that differed significantly from what he recorded in his office notes, and I see \nno reason to make that assumption. Therefore, I decline to make the inference that evidence that was \nnot submitted on that issue would have been prejudicial to claimant’s case.    \n  Before moving to the issue of TTD, I asked of the parties at the end of the hearing: “If I find \n\nSchaeffer-H102563 \n13 \n \n \nadditional  medical treatment is warranted, who does it?”  Claimant  used  her  one-time  change  of \nphysicians  to  Dr.  Dougherty  before  she  moved  to  North  Dakota  due  to  her  financial  condition. \nRespondent was clear in its post-hearing brief: “If claimant is found to be entitled to the surgery, it \nshould  be  done  by  the  current  authorized  physician,  Dr.  Dougherty.”  Claimant  argued  that \nrespondent’s actions which caused claimant to have to leave Arkansas amounted to “bad faith” and \nset forth the expenses respondent would be expected to cover—such as travel, food, lodging—that \nwould be incurred if claimant had to return to Arkansas. She concluded that “the only equitable and \nreasonable solution is to allow the claimant to treat with Dr. Brewley in North Dakota.  \nAs  much  as  I  agree  that  an  equitable  solution  would  be  for  this  treatment  to  take  place  in \nNorth Dakota, this court is not one of equity, but of law.  Claimant failed to provide a case that would \nallow me to order that claimant can once again change to another authorized physician, and I did not \nfind one in my research to permit me to order the change to Dr. Brewley as the authorized treating \nphysician, and therefore decline to do so.  Respondent will need to decide if it wants to promptly pay \nall the additional expenses that are statutorily authorized for claimant to return to Dr. Dougherty for \ntreatment, or avoid those costs and authorize treatment in North Dakota.  \n Is claimant entitled to TTD from August 5, 201 through December 13, 2021? \n In its post-hearing brief, respondent urges that claimant was released by Dr. Heim on August \n4,  2021,  at  maximum  medical  improvement  (MMI)  and  therefore  would  not  be  entitled  to  any \nadditional TTD benefits until she saw Dr. Dougherty on December 7, 2021, who took her off work \nfollowing that visit.  Since claimant took a job on December 13, 2021, it is respondents’ position that \nthe six-day period between December 7 and December 13, 2021, is not long enough for claimant to \nbe entitled to any additional TTD benefit.   \nClaimant’s position is that while she had been released by Dr. Heim, it was for light duty work \n\nSchaeffer-H102563 \n14 \n \n \nand therefore she is entitled to TTD because her employer refused to provide light duty work to her \nwithin the restrictions imposed by Dr. Heim, and further, there is insufficient evidence in the record \nthat claimant had the capacity to earn the same or any part of the wages she was receiving at the time \nof the injury.  \nThe healing period is that period for healing of the injury which continues until the employee \nis as far restored as the permanent character of the injury will permit. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). If the underlying condition causing the disability has become \nmore stable and if nothing further in the way of treatment will improve that condition, the healing \nperiod has ended. Id. Whether an employee's healing period has ended is a factual determination to be \nmade by the Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995).  \n After reviewing all the evidence, I am convinced there was something further in the way of \ntreatment that could improve her condition when she was released by Dr. Heim. I do not question \nthat Dr. Heim made what he thought to be the correct decision in releasing claimant from his care at \nMMI, but I believe he did so at least in part based on the results of the FCE, which did not take into \naccount the extent of claimant’s shoulder injury.  As I have the benefit of information Dr. Heim did \nnot  have  on  August  4,  2021—the report from Dr. Dougherty’s examination of claimant—I  find \nclaimant’s healing period had not ended on August 4, 2021.   She  is  entitled to  TTD  benefits  from \nAugust 5, 2021 through December 12, 2021.\n3\n  \n \n \n \n \n \n3\n Claimant testified she accepted employment on or about December 13, 2021, making less money than what she \nwas making while working for respondent.  She reserved her claim for temporary partial disability benefits.  \n\nSchaeffer-H102563 \n15 \n \n \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $502.00. \n IT IS SO ORDERED. \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":30051,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H102563 MIKALA J. SCHAEFFER, Employee CLAIMANT NORTHWEST MEDICAL CENTER, Employer RESPONDENT GALLAGHER BASSETT, CARRIER/TPA RESPONDENT AMENDED OPINION FILED JANUARY 12, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington Co...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["shoulder","rotator cuff","back","fracture","strain"],"fetchedAt":"2026-05-19T23:11:21.248Z"},{"id":"alj-H008203-2023-01-12","awccNumber":"H008203","decisionDate":"2023-01-12","decisionYear":2023,"opinionType":"alj","claimantName":"Gary Smith","employerName":"Rodriguez Courier Freight, Inc","title":"SMITH VS. RODRIGUEZ COURIER FREIGHT, INC. AWCC# H008203 AMENDED JANUARY 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/Smith_Gary_H008203_20230112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Smith_Gary_H008203_20230112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H008203 \n \n \nGARY W. SMITH, EMPLOYEE CLAIMANT \n \nRODRIGUEZ COURIER FREIGHT, INC., \n EMPLOYER RESPONDENT \n \nNATL. LIAB. & FIRE INS. CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED JANUARY 12, 2023 \n \nHearing  before  Chief  Administrative  Law  Judge  O.  Milton  Fine  II  on  January  12, \n2023, in Little Rock, Pulaski County, Arkansas. \n \nClaimant, pro se, not appearing. \n \nRespondents represented by Mr. Randy P. Murphy, Attorney at Law, Little Rock, \nArkansas. \n \n \nI.  BACKGROUND \n This  matter  comes  before  the  Commission  on  the  Motion  to  Dismiss  that \nwas filed  by  Respondents.    A  hearing  on  the  motion  was  conducted  on  January \n12,  2023,  in  Little  Rock,  Arkansas.    Claimant,  who  is pro  se,  failed  to appear.  \nRespondents were represented at the hearing by Mr. Randy P. Murphy, Attorney \nat Law, of Little Rock, Arkansas.   The record consists of Respondents’ Exhibit 1, \npleadings  related  to  this  claim,  consisting of  two  pages.   In  addition,  and without \nobjection,  the  Commission’s  file  has  been  incorporated  herein  in  its  entirety  by \nreference. \n\nSMITH – H 008203 \n2 \n \n The  evidence  reflects  that  per  the  First  Report  of  Injury  or  Illness  filed  on \nOctober 22, 2020, Claimant purportedly injured his lower back on September 28, \n2020,  when  he  was  lifting  a box  at  work.    According  to  the  Form AR-2  that  was \nfiled  on  November  3,  2020  ,  Respondents  accepted  the  claim  and  paid  medical \nand temporary total disability benefits pursuant thereto. \n On  May  25,  2021,  a  Joint  Petition  was  filed  with  the  Commission  on  this \nmatter.   A  hearing  thereon was  set  for  June  8,  2021,  at  the  Commission  in Little \nRock.  However, Respondents’ counsel informed the Commission by letter on that \ndate  that  Claimant  had  elected  not  to  proceed  with  settlement.    For  that  reason, \nthe  hearing  on  the  Joint  Petition  was  cancelled,  and  the  file  was  returned  to  the \nCommission’s general files. \n Attorney  Greg  Giles  entered  his  appearance  on  behalf  of  Claimant on \nAugust  18,  2021;  and  on  that  same  date,  he filed  a  Form  AR-C on August  18, \n2021.  Therein, Claimant requested the full range of initial and additional benefits \nand  alleged  that he  hurt  his  back  at  work on  September 28,  2020,  when he  was \n“picking  up  [a]  heavy  package.”    No  further  action  occurred  on  the  claim  until \nAugust  12,  2022,  when  Giles  moved  to  withdraw  from  his  representation  of \nClaimant.      In  his   motion,   Giles   stated   that   his   client “appear[ed]   to  have \nabandoned his claim,” and had failed to respond despite efforts to contact him by \nboth  phone  and  mail.    In  an  Order  entered  on  August  25,  2022, the  Full \nCommission granted Giles’s motion under AWCC Advisory 2003-2. \n\nSMITH – H 008203 \n3 \n \n On  October  26,  2022  ,  Respondents  filed  the  instant  Motion  to  Dismiss.  \nTherein,  they  argued  that  dismissal  was  warranted  under  AWCC  R.  099.13  and \nArk.  Code  Ann.  § 11-9-702  (Repl.  2012).  The  case  was  assigned  to  me  on \nOctober 27, 2022; and on that same date, my office wrote Claimant, requesting a \nresponse  to  the  motion  within  20  days.    The  letter  was  sent  by  first-class  and \ncertified  mail  to  the  address  listed  by  Claimant  in  his  Form  AR-C.    The  certified \nletter  was  returned  to  the  Commission,  undelivered, on November  21,  2022;  but \nthe first-class letter was not returned.  Regardless, no response to the motion was \nforthcoming.  On December 16, 2022, a hearing on the motion was scheduled for \nJanuary 12, 2023, at 11:0 0 a.m. at the Commission in Little Rock.  The notice was \nsent to Claimant by first-class and certified mail at the same address as before.  In \nthis instance, the certified letter was claimed by him on December 24, 2022; and \nthe  first-class  letter  was  not  returned.  The  evidence  thus  preponderates  that \nClaimant received notice of the hearing. \n The hearing on the Motion to Dismiss proceeded as scheduled on January \n12, 2023.  Again, Claimant failed to appear.  But Respondents appeared through \ncounsel   and   argued   for   dismissal   of   the   action   under   the   aforementioned \nauthorities. \nII.  FINDINGS OF FACT AND CONCLUSIONS OF LAW \n After reviewing the record as a whole, I hereby make the following findings \nof  fact  and  conclusions  of  law  in  accordance  with  Ark.  Code  Ann.  §  11-9-704 \n(Repl. 2012): \n\nSMITH – H 008203 \n4 \n \n1. The  Arkansas  Workers’  Compensation  Commission  has  jurisdiction \nover this matter. \n2. The  parties  were  provided  reasonable  notice  of  the  Motion  to \nDismiss and of the hearing thereon. \n3. The  evidence  preponderates  that  Claimant  has  failed  to  prosecute \nhis claim under AWCC R. 099.13. \n4. The  Motion  to  Dismiss  is  hereby  granted;  the  claim is  hereby \ndismissed without prejudice under AWCC R. 099.13. \nIII.  DISCUSSION \n AWCC 099.13 reads: \n \nUpon meritorious application to the Commission from either party in \nan action pending before the Commission, requesting that the claim \nbe  dismissed  for  want  of  prosecution,  the  Commission  may,  upon \nreasonable notice to all parties, enter an order dismissing the claim \nfor want of prosecution. \n \nSee  generally  Johnson  v.  Triple  T  Foods, 55  Ark.  App.  83,  85,  929  S.W.2d 730.\n As the moving party, Respondents under Ark. Code Ann. § 11-9-705(a)(3) \n(Repl. 2012) must prove their entitlement to the relief requested—dismissal of this \nmatter—by a preponderance of the evidence.  This standard means the evidence \nhaving greater weight or convincing force.  Barre v. Hoffman, 2009 Ark. 373, 326 \nS.W.3d 415; Smith v. Magnet Cove Barium Corp., 212 Ark. 491, 206 S.W.2d 442 \n(1947). \n As shown by the evidence recounted above, (1) the parties were provided \nreasonable  notice  of  the  Motion  to  Dismiss  and  of  the  hearing  thereon;  and  (2) \n\nSMITH – H 008203 \n5 \n \nClaimant has failed to pursue his claim because he has taken no further action in \npursuit  of it  (including  appearing  at  the  January  12,  2023,  hearing  to  argue \nagainst  its  dismissal)  since  the  filing  of  his  Form  AR-C  on  August  18,  2021.  \nThus,  the  evidence  preponderates  that  dismissal  is  warranted  under  Rule  13.  \nBecause  of  this  finding,  it  is  unnecessary  to  address  the  application  of  §  11-9-\n702. \n That  leaves  the question  of  whether  the  dismissal  of the  claim  should  be \nwith  or  without  prejudice.    The  Commission  possesses  the  authority  to  dismiss \nclaims  with  prejudice.  Loosey  v.  Osmose  Wood  Preserving  Co., 23  Ark.  App. \n137,  744  S.W.2d  402  (1988).    In Abo  v.  Kawneer  Co.,  2005  AR Wrk.  Comp. \nLEXIS  5  10,  Claim  No.  F404774  (Full  Commission  Opinion  filed  November  15, \n2005),  the  Commission  wrote:    “In  numerous  past  decisions,  this  Commission \nand  the  Appellate  Courts  have  expressed  a  preference  for  dismissals without \nprejudice.”  (Emphasis  added)(citing Pr  ofessional  Adjustment  Bureau  v.  Strong, \n75  Ark.  249,  629  S.W.2d  284  (1982)).  Respondents  at  the hearing  asked  for  a \ndismissal without prejudice.  Based on the above authorities, I agree and find that \nthe dismissal of this claim should be and hereby is entered without prejudice.\n1\n \nIV.  CONCLUSION \n In  accordance  with  the  findings  of  fact  and  conclusions  of  law  set  forth \nabove, this claim is hereby dismissed without prejudice. \n\nSMITH – H 008203 \n6 \n \n IT IS SO ORDERED. \n \n      ________________________________ \n      O. MILTON FINE II \n      Chief Administrative Law Judge \n \n \n1\n“A dismissal ‘without prejudice’ allows a new [claim] to be brought on the \nsame cause of action.”  BLACK’S LAW DICTIONARY 825 (abridged 5\nth\n ed. 1983).","textLength":7984,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H008203 GARY W. SMITH, EMPLOYEE CLAIMANT RODRIGUEZ COURIER FREIGHT, INC., EMPLOYER RESPONDENT NATL. LIAB. & FIRE INS. CO., CARRIER RESPONDENT OPINION FILED JANUARY 12, 2023 Hearing before Chief Administrative Law Judge O. Milton Fine II on January 12, 2023, i...","outcome":"dismissed","outcomeKeywords":["dismissed:6","granted:1"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:11:23.310Z"},{"id":"alj-H103107-2023-01-12","awccNumber":"H103107","decisionDate":"2023-01-12","decisionYear":2023,"opinionType":"alj","claimantName":"Andrea Woods","employerName":"Pulaski County Special School Dist","title":"WOODS VS. PULASKI COUNTY SPECIAL SCHOOL DIST. AWCC# H103107 JANUARY 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/WOODS_ANDREA_H103107_20230112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"WOODS_ANDREA_H103107_20230112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H103107 \n \nANDREA WOODS, \nEMPLOYEE                                                                                                              CLAIMANT \n \nPULASKI COUNTY SPECIAL SCHOOL DIST., \nEMPLOYER                                                                                                         RESPONDENT  \n \nARK. SCHOOL BOARDS ASS’N WORKERS’ \nCOMPENSATION TRUST/ARK. SCHOOL BDS. ASS’N \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER FILED JAUNUARY 12, 2023 \nHOLDING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE IN \nABEYANCE FOR 60 DAYS \n \nHearing conducted on Wednesday, January 12, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge  (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe  claimant  was  represented  by  the  Honorable  Willard  Proctor,  Jr.,  Proctor  Law  Firm,  Little \nRock, Pulaski County, Arkansas.  \n \nThe  respondents  were  represented  by  the  Honorable  Carol  Lockhard  Worley,  Worley,  Wood  & \nParrish, Little Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A  hearing  was  conducted  on  Wednesday,  January  11,  2023,  to  determine  whether  this \nclaim should be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) \n(2022)  Lexis  Replacement)  and  Commission  Rule  099.13  (2022  Lexis  Repl.).  The  respondents \nfiled a motion to dismiss with the Commission on November 14, 2022, requesting this claim be \ndismissed without prejudice for lack of prosecution. (Respondents’ Exhibit 1). \n           In accordance with applicable Arkansas law, the claimant was mailed due and proper legal \nnotice of both the respondents’ motion to dismiss as well as a copy of the hearing notice at his \ncurrent addresses of record via the United States Postal Service (USPS), First Class Certified Mail,  \n\nAndrea Woods, AWCC No. H103107 \n \n2 \n \nReturn  Receipt  Requested,  which  she  received  as  is  evidenced  by  Commission  Exhibit  1.  The \nclaimant  and  her  attorney  appeared  in  person  at  the  hearing  and  objected  to  the  respondents’ \nmotion to dismiss. The claimant’s attorney advised he intended to communicate and work with the \nrespondents’ attorney in order attempt to resolve some outstanding health insurance liens in order \nthat the parties may enter into settlement negotiations. The claimant’s attorney advised he intended \nto request a hearing if the parties’ were unable to resolve the outstanding issues.  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter by reference. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively demonstrates the claimant has \nneither requested a hearing nor taken any action as of the hearing date to prosecute her claim. \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, and as I advised the parties on the record at the hearing, I hereby make \nthe following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. The ALJ will hold in abeyance a decision on the respondents’ subject motion to \n                  dismiss without prejudice for a period of 60 days, or until Monday, March 14, \n                  2023 (since 60 days from the hearing date falls on a Sunday). \n \n      3.         The parties have 60 days from the hearing date, or until Monday, March 14, \n                  2023, to obtain any and all additional information they require and to attempt to  \n\nAndrea Woods, AWCC No. H103107 \n \n3 \n \n                  resolve any and all outstanding liens, and/or other issues, if any remain.  \n \n      4.       If, within five (5) days after the expiration of this 60-day time-period the claimant \n                does not request, in writing (with a copy to the respondents’ attorney, of course), a \n                hearing before the Commission and advise both the Commission and the respondents \n                exactly what specific issues she believes are ripe for a hearing, the ALJ will grant \n                the respondents’ motion to dismiss filed November 14, 2022, without prejudice, and \n                without the necessity of either the respondents filing another motion, and without \n                holding another hearing on the motion. \n \n     If they have not already done so, the respondents shall pay the court reporter’s invoice within \n \n twenty (20) days of the filing of this opinion and order. \n \n     IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Mike Pickens \n                                                                                               Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":5605,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H103107 ANDREA WOODS, EMPLOYEE CLAIMANT PULASKI COUNTY SPECIAL SCHOOL DIST., EMPLOYER RESPONDENT ARK. SCHOOL BOARDS ASS’N WORKERS’ COMPENSATION TRUST/ARK. SCHOOL BDS. ASS’N INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED JAUNUARY 12, 2023 HOLDING R...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:11:25.469Z"},{"id":"alj-H108270-2023-01-11","awccNumber":"H108270","decisionDate":"2023-01-11","decisionYear":2023,"opinionType":"alj","claimantName":"Orvi Galeas","employerName":"Evers Construction","title":"GALEAS VS. EVERS CONSTRUCTION AWCC# H108270 JANUARY 11, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GALEAS_ORVI_H108270_20230111.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GALEAS_ORVI_H108270_20230111.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H108270 \n \nORVI GALEAS, Employee                                                                              CLAIMANT \n \nEVERS CONSTRUCTION & FIRST COMP                                        RESPONDENT #1 \nINSURANCE CO.                                                                                                \n \nVG CONSTRUCTION & LIBERTY MUTUAL                                      RESPONDENT #2 \nINSURANCE COMPANY \n \nREYES PEREZ, Uninsured                                                                 RESPONDENT #3 \n \n \n OPINION FILED JANUARY 11, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondent #1 represented by RANDY P. MURPHY, Attorney, Little Rock, Arkansas. \n \nRespondent #2 represented by ZACH RYBURN, Attorney, Little Rock, Arkansas. \n \nRespondent #3 not represented by counsel. \n \n \n STATEMENT OF THE CASE \n  \n On  December  7,  2022,  the  above  captioned  claim  came  on  for  hearing  at \nSpringdale, Arkansas.  A pre-hearing conference was conducted on May 18, 2022 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulation: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n\nGaleas – H108270 \n \n2 \n \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Compensability of injury to claimant’s head and left elbow on August 5, 2021. \n2.  Liability between the parties for payment of compensation benefits. \n3.  Temporary total disability benefits from August 5, 2021 through a date yet to  \nbe determined. \n4.    Payment of medical benefits, both past and present. \n5. Claimant’s average weekly wage. \n6. Attorney’s fee. \n At  the time of the  hearing  claimant clarified  that he is requesting  payment of  \ntemporary  total  disability  benefits  beginning  August  6,  2021  and  continuing  through \nDecember 10, 2021.   \n The  claimant  contends  he  sustained  a  compensable  head  and  left  elbow  injury \nwhen he fell while working on August 5, 2021.  He contends he is entitled to temporary \ntotal disability benefits from August 6, 2021 to December 10, 2021, payment of past and \nfuture  medical  benefits,  and  a  controverted  attorney  fee.  Claimant  contends  that  his \naverage weekly wage is $1200.00 based upon $200.00 per day, six days per week.  The \nclaimant reserves all other issues. \n Respondent #1 contends that the claimant was working for VG Construction at the \ntime of the incident. \n Respondent   #2   contends   that   the   claimant   was   not   an   employee   of   VG \nConstruction.  He did not sustain a compensable injury. \n Respondent #3 did not set forth his contentions. \n From a review of the record as a whole, to include medical reports, documents, \n\nGaleas – H108270 \n \n3 \n \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witnesses and to observe their  demeanor, the following findings of \nfact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non May 18, 2022 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact.    \n 2.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his head and left elbow on August 5, 2021.   \n 3.        Claimant  is  entitled  to  all  reasonable  and  necessary  medical  treatment \nprovided in connection with his compensable injury. \n 4.   Claimant is entitled to payment of temporary total disability benefits from August \n6, 2021 through December 10, 2021.   \n 5.   Claimant earned an average weekly wage of $880.00 per week which would \nentitle him to compensation at the rates of $587.00 for total disability benefits and $440.00 \nfor permanent partial disability benefits. \n 6.      Respondent  #2  is  liable  for  payment  of  compensation  benefits  pursuant  to \nA.C.A. §11-9-402(a). \n 7.      Respondent  #2  has  controverted  claimant’s  entitlement  to  compensation \nbenefits. \n \n FACTUAL BACKGROUND \n Claimant is a 27-year-old man who previously performed roofing work.  Claimant \n\nGaleas – H108270 \n \n4 \n \ntestified  that  in  August  2021  he  was  performing  roofing  work  for  Ivan  Carpio  and  Eric \nDaniel.  He testified that he worked for them for a year. \n On August 5, 2021, while performing his job as a roofer, claimant was climbing a \nladder to the roof of a house located at 2585 Westminster Lane in Springdale.  When he \ngot  to  the  top  he  slipped  and  fell  to  the  ground,  landing  on  his  head  and  left  elbow.  \nClaimant was taken to the emergency room at Northwest Medical Center in Springdale \nwhere a CT scan of the head revealed a fracture of the right frontal sinus and an x-ray of \nthe  elbow  revealed  a  fracture  of  the  proximal  left  ulna  and  radial  head.    Claimant \nunderwent surgery on August 13, 2021 by Dr. Allard to repair the left elbow fracture and \nhe underwent a second procedure in November 2021 to remove hardware in the elbow. \n Claimant testified that after seeing a physician for his frontal sinus fracture he has \nnot seen a physician for that condition in almost a year.  Dr. Allard indicated in a report \ndated  December  10,  2021  that  claimant  could  return  to  work  as  of  that  date  without \nrestrictions.  Claimant returned to work performing tile repair and was working as of the \ndate of the hearing. \n Claimant has filed this claim contending that he suffered a compensable injury to \nhis head and left elbow as a result of the fall on August 5, 2021.  He requests payment of \ntemporary total disability benefits from August 6, 2021 through December 10, 2021, as \nwell as payment of medical expenses and a controverted attorney fee. \n \nADJUDICATION \n The first issue for consideration involves compensability.  Claimant contends that \nhe suffered a compensable injury to his head and left elbow when he fell off a roof on \n\nGaleas – H108270 \n \n5 \n \nAugust 5, 2021.  Claimant’s claim is for a specific injury identifiable by time and place of \noccurrence.   In order to prove a compensable injury as the result of a specific incident \nthat  is  identifiable  by  time  and  place  of  occurrence,  a  claimant  must  establish  by  a \npreponderance  of  the  evidence  (1)  an  injury  arising  out  of  and  in  the  course  of \nemployment; (2) the injury caused internal or external harm to the body which required \nmedical  services  or  resulted  in  disability  or  death;  (3)  medical  evidence  supported  by \nobjective  findings  establishing  an  injury;  and  (4)  the  injury  was  caused  by  a  specific \nincident identifiable by time and place of occurrence.  Odd Jobs and More v. Reid, 2011 \nArk. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has met his burden of proof. \n First, I find that claimant has proven by a preponderance of the evidence that his \ninjury arose out of and in the course of his employment and that the injury was caused by \na specific incident, identifiable by time and place of occurrence.  Claimant testified that \nhe was performing roofing work for Ivan Carpio and Eric Daniel on August 5, 2021 and \nthat  he  slipped  and  fell  to  the  ground  from  the  roof  that  day,  injuring  his  head  and  left \nelbow.  This history of injury is consistent with the history of injury noted in the medical \nrecords submitted into evidence.  Based upon the foregoing, I find that claimant has met \nhis burden of proving by a preponderance of the evidence that his injury arose out of and \nin  the  course of his  employment and  that  the  injury  was  caused  by  a  specific  incident, \nidentifiable by time and place of occurrence. \n I  also  find  that  claimant  has  proven  that  the  injury  caused  internal  or  external \nphysical harm to his body that required medical services or resulted in disability and that \n\nGaleas – H108270 \n \n6 \n \nhe has offered medical evidence supported by objective findings establishing an injury.  \nFollowing his fall on August 5, claimant was taken for medical treatment at the emergency \nroom at Northwest Medical Center.  A CT scan of the head revealed a fracture of the right \nfrontal sinus and an x-ray of the elbow revealed a fracture of the proximal left ulna and \nradial head.  These findings constitute objective evidence. \n Dr. Allard performed surgery to repair the elbow fracture which included internal \nfixation and he performed a second surgery to remove the hardware in November.  The \nsurgery by Dr. Allard satisfies the requirement that the injury caused internal or external \nharm that required medical services.   \n Based  on  this  evidence,  I  find  that  claimant  has  established  the  remaining \nelements of compensability and therefore find that claimant has met his burden of proving \nby a preponderance of the evidence that he suffered a compensable injury to his head \nand left elbow on August 5, 2021.   \n I also find that claimant is entitled to payment for medical treatment provided for \nhis compensable injuries and that he is entitled to payment of temporary total disability \nbenefits from August 6, 2021 through December 10, 2021.  The injury to claimant’s left \nelbow  is  a  scheduled  injury.  A  claimant  who  suffers  a  scheduled  injury  is  entitled  to \ntemporary total or temporary partial benefits during their healing period or until they return \nto  work;  regardless  of  whether  there  is  a  total  incapacity  to  earn  wages.   Wheeler \nConstruction Company v. Armstrong, 73 Ark. App. 146, 41 S.W. 3d 822 (2001).   \n Claimant remained within his healing period and did not return to work from the \nday  after  his  accident  (August  6,  2021)  until  he  was  released  to  return  to  work  by  Dr. \nAllard on December 10, 2021.  Therefore, I find that claimant is entitled to temporary total \n\nGaleas – H108270 \n \n7 \n \ndisability benefits from August 6, 2021 through December 10, 2021. \n The next issue for consideration is claimant’s compensation rate.  After my review \nof the evidence, I find that claimant earned an average weekly wage of $880.00.  Claimant \ntestified that he was paid $200.00 per day while working for Ivan Carpio.  He also testified \nthat he often worked six days per week.  Accordingly, claimant contends that his average \nweekly wage equals $1200.00 per week.  I do not agree that the evidence supports that \nrate.   \n In order to have an average weekly wage of $1200.00, claimant would have had \nto  work  six  days  per  week  to  earn  that  amount  every  week  he  worked  for  Carpio.  \nHowever, claimant testified that there were some weeks he worked less than six days per \nweek. \n  Q On the times when it would rain a lot, would you work \n  a little less than the six days? \n \n  A Yes. \n      *** \n  \n  Q Some weeks you could work six days, some weeks you \n  could work no days? \n \n  A Sometimes three days or four days. \n \n \n Thus, according to claimant’s testimony he did not work six days per week every \nweek; therefore, his average weekly wage could not have equaled $1200.00.  Claimant \nalso testified that the least amount he made a week was $880.00.   \n  Q What is the least money you ever remember making \n  in a week? \n \n  A Eight hundred eighty, that was the least, when we \n  really couldn’t work. \n\nGaleas – H108270 \n \n8 \n \n \n Claimant admitted that he does not have any records showing the amounts he was \npaid.  Claimant has the burden of proving by a preponderance of the evidence his average \nweekly wage.  Based on his testimony, I find that claimant’s average weekly wage equals \n$880.00.  While he testified that there were weeks that he earned more than $880.00, the \nnumber of weeks that occurred is unknown in relation to the number of weeks he earned \nonly $880.00. Therefore, I find based on the evidence presented that claimant’s average \nweekly  wage  equals  $880.00.    This  would  entitle  claimant  to  benefits  at  the rates  of \n$587.00 for total disability benefits and $440.00 for permanent partial disability benefits. \n The  final  issue  for  consideration  involves  liability  for  payment  of  compensation \nbenefits between the parties.  Claimant testified that he was working on August 5, 2021 \nfor Ivan Carpio and Eric Daniel.  He further testified that he had worked for them for one \nyear and that during that period of time he did not work for any other employers.   \n Pursuant   to   A.C.A.   §11-9-402(a),   where   a   subcontractor   fails   to   secure \ncompensation, the prime contractor shall be liable for compensation unless there is an \nintermediate subcontractor who has coverage.   \n In this claim,  Respondent #1, Evers Construction, was the general contractor of \nremodeling work that was being performed according to the testimony of Sonia Mendoza, \none  of  the  owners  of  Evers  Construction.    She  testified  that  Respondent  #1  does  not \nperform  roofing  work,  so  Respondent  #1  subcontracted  the  roofing  work  to  VG \nConstruction, respondent #2.  Respondent #2 in turn subcontracted the roofing work to \nReyes  Perez.    The  contract  between  Respondent  #2  and  Perez  was  submitted into \nevidence as Pages 17 through 26 of Claimant’s Exhibit 2.   \n\nGaleas – H108270 \n \n9 \n \n Testifying at the hearing was Reyes Perez.  Perez testified that he was unable to \nperform any of the roofing work on the home because he had to leave for Florida and he \ncontacted Ivan Carpio.   \n  Q And then did you ever do any work on that house? \n \n  A No.  We were - - well, we already agreed that I was \n  going to do that house myself and the people that worked \n  with me, but I had to leave on the 4\nth\n to Florida and I told \n  VG Construction that I did not have time to do that house. \n  So then he asked me to find somebody or if I had somebody \n  that could do it and I called Ivan Carpio and he said he had \n  time; that he would do it. \n \n \n The  contract  between  Perez  and  Ivan  Carpio  was  submitted  into  evidence  as \nPages 34 through 36 of Claimant’s Exhibit 2.   \n At this point it should be noted that Ivan Carpio was not present at the hearing.  \nInstead, he was released as a party by the remaining parties at a pre-hearing conference.  \nClaimant chose not to proceed against Carpio because he is uninsured; instead, claimant \nhas  chosen  to  proceed  primarily  against  Respondent  #1  and  Respondent  #2  who  are \nboth  insured.    The  fact  that  Carpio  was  uninsured  and a  determination  was  made  that \nCarpio would not be made a party to the claim was confirmed by Attorney Murphy during \na discussion at the hearing. \n Pursuant to A.C.A. §11-9-402(a), I find that Respondent #2 is liable for payment of \ncompensation benefits.    Claimant  worked  for  Ivan  Carpio,  an uninsured  subcontractor.  \nCarpio   obtained   the   subcontract  from   Reyes  Perez     who   is   also   an  uninsured \nsubcontractor.    Perez  obtained  a  subcontract  from  Respondent  #2,  VG  Construction, \nwhich  does  have  workers’  compensation  coverage.    While  Respondent  #1  was  the \n\nGaleas – H108270 \n \n10 \n \ngeneral  contractor,  the  statute  indicates  that  the  general  contractor  will  be  liable for \ncompensation  if  there  is  not  an  intermediate  subcontractor  who  has  coverage.    In  this \ncase, Respondent #2 is a subcontractor who has coverage; therefore, Respondent #2 is \nliable for payment of appropriate compensation benefits. \n With respect to this issue, I note that Respondent #1 contends that based upon \ntestimony from Perez that the subcontract between Perez and Carpio was not signed until \nafter the injury occurred.  However, I do note that the contract is dated the same day of \nthe accident, August 5.  Furthermore, according to Perez’s testimony he did not perform \nany of the work on the home, but instead contracted with Carpio to perform that work.  \nEven if one assumes that the written contract was not signed until after claimant’s fall, the \nevidence clearly indicates that there was an oral contract for Carpio to perform the work \nwhich was being performed on August 5 and resulted in claimant’s fall and subsequent \ninjury.  Accordingly, I find no merit to this contention. \n \nAWARD \n Claimant has met his burden of proving by a preponderance of the evidence that \nhe suffered a compensable injury to his head and left elbow on August 5, 2021.  Claimant \nis  entitled  to  payment  of  all  reasonable  and  necessary  medical  treatment provided  in \nconnection with his compensable injuries.  In addition, claimant is entitled to payment of \ntemporary  total  disability  benefits  from  August  5,  2021  through  December  10, 2021.  \nClaimant’s average weekly wage equals $880.00 per week.  Finally, pursuant to A.C.A. \n§11-9-402(a), Respondent #2 is liable for payment of compensation benefits. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \n\nGaleas – H108270 \n \n11 \n \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney fee based upon the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \nRespondent #1 and Respondent #2 are liable for the court reporter’s charges for \npreparation of the hearing transcript, with each to pay the sum $430.20 representing one-\nhalf of the total transcript amount. \nAll sums herein accrued are payable in a lump sum and without discount. \nIT IS SO ORDERED. \n \n     _____________________________________ \n     GREGORY K. STEWART \n     ADMINISTRATIVE LAW JUDGE","textLength":18395,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H108270 ORVI GALEAS, Employee CLAIMANT EVERS CONSTRUCTION & FIRST COMP RESPONDENT #1 INSURANCE CO. VG CONSTRUCTION & LIBERTY MUTUAL RESPONDENT #2 INSURANCE COMPANY REYES PEREZ, Uninsured RESPONDENT #3 OPINION FILED JANUARY 11, 2023 Hearing before ADMINISTRA...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["fracture"],"fetchedAt":"2026-05-19T23:11:15.050Z"},{"id":"alj-H202237-2023-01-10","awccNumber":"H202237","decisionDate":"2023-01-10","decisionYear":2023,"opinionType":"alj","claimantName":"Kenneth Adams","employerName":"Tyson Foods, Inc","title":"ADAMS VS. TYSON FOODS, INC. AWCC# H202237 JANUARY 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//ADAMS_KENNETH_H202237_20230110.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ADAMS_KENNETH_H202237_20230110.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. H202237 \n \nKENNETH R. ADAMS, EMPLOYEE       CLAIMANT \n \nTYSON FOODS, INC., \nSELF-INSURED EMPLOYER           RESPONDENT  \n \nTYNET CORPORATION, CARRIER/TPA         RESPONDENT    \n \nOPINION FILED JANUARY 10, 2022 \n \nHearing  before  Administrative  Law  Judge  JayO.  Howe  in  Little  Rock,  Pulaski \nCounty, Arkansas, on January 10, 2023. \n \nClaimant is Pro Se and did not appear. \n \nRespondents are represented by J. Matthew Mauldin and Lauren Scroggins of the \nRoberts Law Firm in Little Rock, Arkansas. Ms. Scroggins appeared. \n \nSTATEMENT OF THE CASE \n \n A hearing was held in the above-styled matter on January 10, 2023, in Little Rock, \nArkansas, on  respondent’s  Motion  to  Dismiss  for  failure  to prosecute  pursuant  to  Ark. \nCode  Ann. §  11-9-702  and  Rule  099.13  of  the  Arkansas  Workers’  Compensation  Act.  \nThe claim involves an injury which allegedly occurred on or about March 14, 2022, when \nliquid  used  during  poultry  processing  contacted   claimant’s  eyes.  He  notified  the \nrespondent on the same day. An employer/employee relationship existed.  Forms AR-1 \nand AR-2 were filed on March 30, 2022. The claim was medical only.   \nMore than six (6) months have passed since the claimant alleged that he sustained \na  work-related  injury.  A  Motion  to  Dismiss  was  filed  on  November  4,  2022,  and  the \nclaimant failed to respond to that Motion.   \nA hearing was set for 12:00 pm on Tuesday, January 10, 2023, in regard to the \nMotion  to  Dismiss.    Notice  was  mailed  to  the  claimant  at  the  address  provided  to  the \n\nADAMS- H202237 \n2 \n \nCommission by him both Certified Mail, Return Receipt Requested and First-Class Mail. \nThe certified copy of the letter was returned unclaimed, but the First-Class letter was not \nreturned.  The  claimant  failed  to  appear.    At  the  time  of  the  hearing,  Lauren  Scroggins \nappeared on behalf of the respondents and asked that the matter be dismissed for lack \nof prosecution. \n After a review of the record as a whole, to include all evidence properly before the \nCommission, and having had an opportunity to hear the statements of the respondent’s \nattorney, there is no alternative but to find that the Motion to Dismiss should be granted \nat this time, and the matter should be dismissed without prejudice. \nORDER \n Pursuant to the above, there is no alternative but to find that the Motion to Dismiss \nshould be granted and this matter should be dismissed without prejudice at this time.   \nIT IS SO ORDERED. \n      ____________________________ \n       JAYO. HOWE \n       ADMINISTRATIVE LAW JUDGE","textLength":2670,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H202237 KENNETH R. ADAMS, EMPLOYEE CLAIMANT TYSON FOODS, INC., SELF-INSURED EMPLOYER RESPONDENT TYNET CORPORATION, CARRIER/TPA RESPONDENT OPINION FILED JANUARY 10, 2022 Hearing before Administrative Law Judge JayO. Howe in Little Rock, Pulaski County, Arkan...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:11:08.839Z"},{"id":"alj-H008680-2023-01-10","awccNumber":"H008680","decisionDate":"2023-01-10","decisionYear":2023,"opinionType":"alj","claimantName":"Yvonne Reed","employerName":"Central Arkansas Development Council","title":"REED VS. CENTRAL ARKANSAS DEVELOPMENT COUNCIL AWCC# H008680 JANUARY 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/REED_YVONNE_H008680_20230110.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"REED_YVONNE_H008680_20230110.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \n                                          CLAIM NO.: H008680 \n \nYVONNE REED,  \nEMPLOYEE                                                                                                                CLAIMANT                                   \n \nCENTRAL ARKANSAS DEVELOPMENT COUNCIL, \nEMPLOYER                                                                                                            RESPONDENT  \n \nATA WC TRUST/RISK MANAGEMENT RESOURCES,                \nCARRIER/THIRD PARTY ADMINISTRATOR                                                  RESPONDENT    \n                                                                                                                                                                                \n                                               \n  OPINION FILED JANUARY 10, 2023 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  CHANDRA  L.  BLACK,  in  Little  Rock, \nPulaski County, Arkansas. \n  \nClaimant  represented  by  Gregory  R.  Giles,  Attorney  at  Law,  Texarkana,  Arkansas.  Mr.  Giles \nwaived his appearance at the hearing.       \n \nRespondents represented by Ms. Melissa Wood, Attorney at Law, Little Rock, Arkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  held  on the Respondents’ motion to dismiss for want of prosecution, on \nJanuary 4, 2023, in this claim for workers’ compensation benefits pursuant to Dillard v. Benton \nCounty Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004).  Specifically, the sole issue \nfor  determination  was  whether  this  claim  should  be  dismissed due to the Claimant’s failure  to \npromptly prosecute it pursuant to the provisions of Ark. Code Ann. §11-9-702  (Repl. 2012) and/or \nArkansas Workers’ Compensation Commission Rule 099.13.  \n Reasonable notice of the dismissal hearing was had on all parties in the manner prescribed \nby law.   \n     The record consists of the hearing transcript from January 4, 2023.  Without any objection, \nthe entire Commission’s file has been made a part of the record.  It is hereby incorporated herein \n\nReed – H008680 \n \n2 \n \nby reference.  Similarly, the Respondents introduced into evidence a Respondents’ Hearing Exhibit \nIndex consisting of nineteen (19) numbered pages, which was marked Respondents’ Exhibit 1.    \n No testimony was taken at the hearing. \nBackground \n The following procedural history applies to this claim: \nThe Claimant wrote a letter to the Commission in the above-styled claim on January 31, \n2022 to request a  hearing on her claim.  My review of the documentary evidence demonstrates \nthat  the  Claimant  was  involved  in  a  minor  motor  vehicle  accident  on  October  24,  2020  while \nworking for the respondent-employer.    \nOn or about November 9, 2020  the Respondents (the carrier) filed a Form AR-2 with the \nCommission.  At that time, the Respondents accepted the claim as compensable for the Claimant’s  \nOctober 24, 2020 accidental injury.  The carrier accepted this claim for an injury to the Claimant’s \nleft arm.  Then, on January 25, 2022  the Respondents  denied the claim on the grounds that there \nwere no objective findings of an injury to the Claimant’s left shoulder or cervical spine.    \nPursuant to the Claimant’s January 2022 request for a hearing on the merits, this claim was \nscheduled for a Prehearing Telephone Conference on March 29, 2022.   However, at the time of \nthe prehearing conference, the Claimant stated that she wanted to seek legal representation in her \nworkers’ compensation claim.   Therefore,  following  the  telephone  conference  the  claim  was \nreturned to the Commission’s general files.  \nConsequently, there was no action taken on the part of the Claimant to prosecute, resolve, \nor pursue her claim. \nThe  Claimant  retained  an  attorney  on  May  3,  2022.   Her  attorney  filed  a  letter  of \nrepresentation and a Form AR-C with the Commission on that same date.  Per this document, the \n\nReed – H008680 \n \n3 \n \nClaimant’s alleged injury was due to the October 24, 2020 motor vehicle accident.   On the Form \nAR-C,  the Claimant’s attorney checked  all  of  the  boxes  for  both  initial  and  additional  benefits \nworkers’ compensation benefits.  However, a request for a hearing was not made at that time.  \nTherefore, on November 4, 2022 the Respondents filed with the Commission a Motion to \nDismiss for Failure to Prosecute.  The Respondents served a copy of the foregoing pleading on the \nClaimant’s attorney via electronic mail. \nOn November 7, 2022, the Claimant and her attorney were given a deadline of November \n28,  2022,  to  file a written  objection  to  the  motion.    The  Claimant  received  a  copy  of  this  letter  \nfrom  the  United  States  Postal  Service  by  picking  it  up  at  the  local  post  office,  in  El  Dorado, \nArkansas.     \nThe Claimant’s attorney wrote the following letter to the Commission on November 15, \n2022: \nDear Judge Black: \nThank you for your letter of November 7, 2022.  Ms. Reed respectfully requests that the \nMotion  to  Dismiss  be  denied.    Given  the  circumstances,  Ms.  Reed  respectfully  requests \nthat a hearing be scheduled concerning the issue of compensability.      \n \nAs a result, the prehearing process was resumed.  However, on December 7, 2022 the  \nClaimant’s attorney wrote another letter to the Commission.  It reads: \n Dear Judge Black: \nI  am  writing  you  on  behalf  of  the  Claimant,  Ms.  Yvonne  Reed  to  withdraw  our  hearing \nrequest  and  withdraw  our  objection  to  voluntary  dismissal.  Ms.  Reed  continues  to  be \nemployed by Central Arkansas Development Council, and she no longer wishes to pursue \nthis claim. At the time of this alleged work related accident that occurred on October 24, \n2020 which was the  result of a motor vehicle  accident, Ms. Reed was already under the \ncare of a chiropractor as a result of a work related accident that had occurred on October \n\nReed – H008680 \n \n4 \n \n4,\n1\n  2020.  Based  upon  the  review  of  the  prior  medical  records  and  records  of  treatment \nfollowing her October 24\nth\n event, it appears at best she had a temporary aggravation of a \npre-existing  condition.  A  brief  period  of  TTD  benefits  which  was  initially  accepted  and \npaid  and  she  was  able  to  subsequently  return  to  work.  She  continues  to  successfully \nmaintain her job at Central Arkansas Development Council and no longer wishes to pursue \nthis claim. Thank you for your consideration. \n \nSubsequently, on December 9, 2022, the Commission issued a Notice of Hearing, which \nwas  sent  via  certified  mail  to  all parties letting them know that a hearing on the Respondents’ \nmotion for dismissal was scheduled for January 4, 2023.  Based on information received from the \nPostal Service, the Notice of Hearing was delivered to the Claimant when she picked it up from \nthe local Post Office, in  El Dorado,  Arkansas on  December 17, 2022.  The Claimant’s attorney \nalso received  a copy of the Hearing Notice.    \nOn  December  20,  2022, the  Claimant’s  attorney  filed  with  the  Commission  a  formal \nrequest to  withdraw from representing the Claimant in this workers’ compensation claim.    The \nClaimant notified the Commission via email that she does not object to her attorney withdrawing \nfrom her claim.  The Respondents do not object to the Claimant’s attorney withdrawing from the \nclaim.  \nSince this time, the Claimant has objected to her claim being dismissed. \nThus far, there has been no bona fide undertaking of any kind on the part of the Claimant \nto resolve or otherwise pursue her claim.  \nNevertheless, said hearing was in fact conducted on the Respondents’ motion to dismiss as \nscheduled.    The  Claimant  did  not  appear  at  the  hearing  to  object  to  her workers’ compensation \nclaim  being  dismissed.  Her  attorney  waived  his  appearance  at  the  hearing.  However,  the \n \n1\n The Claimant’s attorney sent an email to the Commission on December 8, 2022 stating \n“My letter incorrectly states the 10/4/20 MVA was work-related.  It should have stated another \nMVA. That accident was not work-related.”      \n\nReed – H008680 \n \n5 \n \nRespondents’ attorney appeared for the hearing.  During the hearing, the Respondents’ attorney \nmoved that this claim be dismissed without prejudice due to the Claimant’s failure to prosecute it.  \nCounsel  specifically  asked  that  the  dismissal  be  made  under  Ark.  Code  Ann.  §11-9-702  and \nCommission Rule 099.13.   The applicable law and Commission Rule are set forth below.  \n                          Discussion \nIn that regard, Ark. Code Ann. §11-9-702(a)(4) (Repl. 2012) reads:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n  \nArk. Code Ann. §11-9-702 (d) (Repl. 2012) provides:  \nIf within six (6) months after the filing of a claim for additional compensation, no \nbona fide request for a hearing has been made with respect to the claim, the claim \nmay, upon motion and after hearing, if necessary, be dismissed without prejudice \nto the refiling of the claim within the limitation period specified in subsection (b) \nof this section. \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed  \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed  with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. (Effective March 1, 1982) \n \nMy review of the record shows that more than six (6) months have elapsed since the filing \nof the Form AR-C in this claim for workers’ compensation benefits.  However, since this time, the \n\nReed – H008680 \n \n6 \n \nClaimant has failed to make a bona fide request for a hearing with respect to this claim. Thus, this \nis an appropriate basis for dismissal.   \nTherefore, based on my review of the documentary evidence, and all other matters properly \nbefore the Commission, I find that the Respondents’ motion  to  dismiss  this  claim  is  called  for \npursuant to Commission Rule 099.13.  Consequently, this claim is respectfully dismissed without \nprejudice, to the refiling of it within the limitation period specified by law.  Moreover, considering \nthat this claim has now been dismissed pursuant to Rule 099.13, the issue of it being dismissed \nunder the provisions of Ark. Code Ann. §11-9-702 has been rendered moot not discussed herein \nthis Opinion.  Of note, I realize that the Claimant has now objected to her claim being dismissed.  \nYet,  she has failed to identify any justiciable issues and she has not requested a hearing on the  \nmerits.   \nAdditionally,   my  review  of  the  Claimant’s  attorney’s  motion  to  withdraw  from \nrepresenting her complies with AWCC Advisory 2003-2.  Therefore, the motion to withdraw is \nhereby granted.   \n                             FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole, I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction of this \nclaim.  \n \n2. Reasonable notice of the dismissal hearing was provided to all the parties \nin the manner prescribed by law.   \n \n3. The Claimant has failed to prosecute her claim for workers’ compensation \nbenefits.  \n \n4. The  evidence  preponderates  that the Respondents’ Motion  to  Dismiss  for \nFailure to Prosecute is warranted. \n \n\nReed – H008680 \n \n7 \n \n5. That  the  Respondents’ motion  to  dismiss  is  hereby  granted  pursuant  to \nCommission  Rule  099.13,  without  prejudice,  to  the  refiling  of  the  claim \nwithin  the  specified  limitation  period.  Therefore,  an  adjudication  of  the \nclaim being dismissed under the provisions of Ark. Code  Ann. §11-9-702 \nhas been rendered moot and not discussed herein this Opinion. \n \n6. The Claimant’s attorney is hereby relieved  as  counsel  of  record  in  this \nmatter. \n \nORDER \nBased on the foregoing findings of fact and conclusions of law, this claim is respectfully \ndismissed without prejudice under Rule 099.13, to the refiling of it within the limitation period  \nspecified  by  law.   The Claimant’s attorney’s motion to withdraw from representing her in this \nmatter is hereby granted.     \nIT IS SO ORDERED. \n \n                                                                        ________________________________ \n  CHANDRA L. BLACK  \n                                                     Administrative Law Judge","textLength":13535,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO.: H008680 YVONNE REED, EMPLOYEE CLAIMANT CENTRAL ARKANSAS DEVELOPMENT COUNCIL, EMPLOYER RESPONDENT ATA WC TRUST/RISK MANAGEMENT RESOURCES, CARRIER/THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JANUARY 10, 2023 Hearing before ADMINISTRATIVE LAW JUDGE CHA...","outcome":"dismissed","outcomeKeywords":["dismissed:9","granted:3"],"injuryKeywords":["shoulder","cervical"],"fetchedAt":"2026-05-19T23:11:10.908Z"},{"id":"alj-G804085-2023-01-10","awccNumber":"G804085","decisionDate":"2023-01-10","decisionYear":2023,"opinionType":"alj","claimantName":"Lisa Sowell","employerName":"Evergreen Packaging, LLC","title":"SOWELL VS. EVERGREEN PACKAGING, LLC AWCC# G804085 JANUARY 10, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SOWELL_LISA_G804085_20230110.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SOWELL_LISA_G804085_20230110.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G804085 \n \nLISA SOWELL, EMPLOYEE       CLAIMANT \n \nVS. \n \nEVERGREEN PACKAGING, LLC, EMPLOYER        RESPONDENT \n \nACE AMERICAN INSURANCE COMPANY / \nGALLAGHER BASSETT SERVICES, INC., \nCARRIER /TPA              RESPONDENT \n \nOPINION FILED JANUARY 10, 2023 \n \nHearing before Administrative Law Judge, James D. Kennedy, on the 1\nst\n day of December \n2022, in Pine Bluff, Arkansas. \n \nClaimant is represented by Mr. Larry J. Steele, Attorney-at-Law, Walnut Ridge, Arkansas. \n \nRespondent  is  represented  by  Mr.  William  C.  Frye,  Attorney-at-Law,  North  Little  Rock, \nArkansas. \n \nSTATEMENT OF THE CASE \n \n A  hearing  was  conducted  on  the  1\nst\n  day  of  December,  2022,  to  determine  the \nissues of whether the Arkansas Workers’ Compensation  Act  is  unconstitutional  due  to \ndenial  of  due  process  and  equal  protection  under  the  14\nth\n  Amendment  of  the  United \nStates  Constitution  because  the  claimant  was  denied  an  updated  MRI  and  was  thus \nunable to treat with her choice of physician, additionally whether the claimant is entitled \nto  additional  medical  treatment  (including  medication  and  physical  therapy)  for her \ncompensable low-back injury, and also whether the claimant is entitled to permanent total \ndisability benefits,  plus any  attorney fees.  The  respondents admitted that the claimant \ndid request a different doctor, but that they were unable to obtain a name for  a second \ndoctor requested by the claimant, and further, that the change of physician rules do not \nrequire  the  respondent  to  pay  for  another  MRI,  and  the  MRI  is  not  reasonable  and \n\nSOWELL – G804085 \n \n2 \n \nnecessary.      A  copy  of  the  Prehearing  Order was marked “Commission Exhibit 1” and \nmade part of the record without objection.  The Order provided that the parties stipulated \nthat the Arkansas Workers’ Compensation Commission has jurisdiction of the within claim \nand that an employer/employee relationship existed at all relevant times including on or \nabout May 31, 2018, when the claimant sustained a compensable injury to her lower back.  \nAt the time of the compensable injury, the claimant was earning an average weekly wage \nof $1,250.00, entitling her a TTD/PPD rate of $673.00/$505.00, respectively, and that all \nissues not litigated herein are reserved under the Arkansas Workers’ Compensation Act. \nThere was no objection to these stipulations. \n It should also be clarified that the  claimant had also filed an action in the United \nStates  District  Court  in  Pine  Bluff  regarding  the  respondent,  and her  deposition  in  that \nmatter was introduced herein, without objection.    \n The  claimant’s  and  respondent’s contentions are all  set  out  in  their  respective \nresponses  to  the  prehearing  questionnaire  and  made  a  part  of  the  record  without \nobjection.  The sole witness consisted of Lisa Sowell, the claimant.  From a review of the \nrecord  as  a  whole,  to  include  medical  reports  and  other  matters  properly  before  the \nCommission, and having had an opportunity to observe the testimony and demeanor of \nthe witness, the following findings of fact and conclusions of law are made in accordance \nwith Ark. Code Ann. §11-9-704. \nFINDINGS OF FACT AND CONCLUSSIONS OF LAW \n \n1.   The Arkansas Workers’ Compensation Commission has jurisdiction over this \nclaim. \n \n2.  That an employer/employee relationship existed at all relevant times including \nMay 31, 2018, when the claimant sustained a compensable injury to her lower \nback.  At the time, the claimant earned an average weekly wage of $1,250.00 \n\nSOWELL – G804085 \n \n3 \n \na week, sufficient for temporary total disability and permanent partial disability \nrates of $673.00 / $505.00 per week, respectively. \n \n3. That the Arkansas Workers’ Compensation Act is constitutional and applicable. \n \n4.  That the Functional Capacity Evaluation was found to be admissible.  \n \n5.  That the claimant has failed to satisfy the required burden of proof to show that \nshe is entitled to an additional medical treatment, specifically an additional MRI \nand physical therapy. \n \n6.  That the claimant has failed to satisfy the required burden of proof to show that \nshe is entitled to permanent total disability benefits. \n \n7.  That all other issues are moot. \n \n8.  If  not  already  paid,  the  respondents  are  ordered  to  pay  for  the  cost  of the \ntranscript forthwith. \n \nREVIEW OF TESTIMONY AND EVIDENCE \n \n The Prehearing Order, along with the prehearing questionnaires of the parties, and \nthe claimant’s amended response to the prehearing questionnaire were admitted into the \nrecord  without  objection.    The  claimant  and  respondents  both  submitted  a  voluminous \namount  of documents,  which  were admitted into the  record,  without  objection,  with  the \nexception of a Functional Capacity Exam submitted by the respondent, which the claimant \nobjected to.  The Functional Capacity Exam was found to be admissible at the time of the \nhearing,  based  upon  the  wide  discretion  available  to  the  Commission in  regard  to  the \nadmissibility of evidence.    \nThe claimant was the sole witness and testified she was fifty-five (55) years old at \nthe time of the hearing and graduated the twelfth grade.  She had previously worked at \nTysons  for  seventeen  (17)  years  in  security  which  involved  a  lot  of  standing  and  had \nstarted working for Evergreen in 2003 as a “floater”. (Tr. 22, 23)  In 2018, she was an \n“Operator” for Evergreen, where she fell while going down some stairs returning to her \n\nSOWELL – G804085 \n \n4 \n \noffice. (Tr. 24)  The claimant was knocked unconscious due to the fall and first saw Dr. \nVargus, who became her treating physician, ordered an MRI, and opined she should not \nlift over five (5) pounds. (Tr. 25, 26)  \nIn regard to the Functional Capacity Exam and her failing to complete it, she stated \nthat there was a chair in front of her and she was requested to kneel down in front of the \nchair, and every time she attempted to kneel down, she would feel like she was falling \ntowards the chair. (Tr. 27)  She also talked about a weight that was placed on her ankles, \nwhich caused her to scream due to it hurting.  She stated she never recovered from the \ninjury in regard to falling down the stairs where she was not in pain, but did reach a point \nwhere  she was no longer prescribed medication. (Tr. 28)  She admitted obtaining pain \nmedication, an injection, from the emergency room, once.  She also admitted receiving \nan  MRI  at  Jefferson  Regional  Medical  Center  in  2019,  in  regard  to  Social  Security,  a \nmonth before an automobile accident.  The claimant denied being in an accident between \nthe time of the accident at work and the MRI at Jefferson regional. (Tr. 29, 30) \nThe claimant also admitted she was involved in an automobile accident after the \nMRI, where the back part of a truck came over in her lane and hit her, but denied spending \nanytime in the hospital.  She stated Social Security had declared her totally disabled. (Tr. \n31) \nUnder  cross-examination,  the  claimant  admitted  she  was  not  aware  that  Dr. \nVargas had determined there were no limitations in regard to her neck.  She also agreed \nshe was sent to physical therapy in regard to her lower back.  She stated Dr. Vargas told \nher  he  was  going  to  take  care  of  her  back  first.    She  was  then  questioned  specifically \nabout her going into the clinic where the reports provided her low back was getting better.  \n\nSOWELL – G804085 \n \n5 \n \nShe responded, “That’s not correct” and went on to state that since she fell, she has been \nhaving problems with her back.  She admitted Dr. Vargas told her the same thing that Dr. \nWilkins told her, which was that it “was starting to be arthritis to build up”.   She denied \nbeing told there were no objective findings of an injury in regard to the MRI. (Tr. 32 - 34) \nThe claimant was also questioned about a nerve conduction study on August 23, \n2018, which provided “no evidence of any lumbar problems.”   She responded, “Well, he \nsaid, my nerves was good in my left leg” but he did not tell me that. (Tr. 36)  In regard to \ncomplaints  about  her  neck,  the  claimant  again  responded  that  she  was  told  they  were \ngoing  to  take  care  of her  back  first.    The  claimant  was  also  questioned  about an \nexamination on October 4, 2018, that provided that, “Muscle motor, unable to establish, \nsince patient’s lack of effort hurt the examination,” and the claimant responded, “I mean, \nI’m not getting it.  What was I supposed to do?  What is this about.” (Tr. 37, 38)  The \nclaimant  also  testified  she  was  not  aware  of  the  fact  the  Functional  Capacity  Exam \nprovided she did not give good effort in regard to her hands and she failed all the strength \ntests provided. (Tr. 39, 40) \nThe claimant was also questioned about the Social Security MRI of September 18, \n2019, where Dr. Smith provided the MRI, “showed simply mild degenerative disc disease \nat L3-4 and L4-5” and whether Dr. Smith went over the report with her, and she responded \n“Yes.”  She stated that  at  that  time  she  thought, “I could do some things.”  She also \nadmitted Dr. Vargas did not place any restrictions on her when he released her and no \ndoctor since Dr. Vargas had placed her under any restrictions. (Tr. 43) \nThe claimant also admitted she went to the emergency room after her automobile \naccident and then followed up at Liberty Chiropractic, where she stated she had injured \n\nSOWELL – G804085 \n \n6 \n \nher shoulder, legs, neck, back, and arms due to the accident.  The claimant testified the \nchiropractic treatment failed to improve her condition.  She was then asked about where \nthe report provided that the claimant reported an eighty to eighty-five percent (80% - 85%) \nimprovement and did the chiropractor get that wrong and her response was, “As far as \nme being real sore and tense, yeah, but it didn’t help my condition.” (Tr. 45)  The claimant \ndenied any attempt of returning to work. (Tr. 46)   \nIn regard to documentary evidence, the claimant submitted five (5) exhibits.  The \npertinent medical records from Jefferson Regional Ortho and Spine Clinic and Dr. Jason \nSmith, dated September 19, 2019, provided the claimant returned after obtaining an MRI \nof the lumbar and cervical spine which provided she suffered from multilevel degenerative \ndisc  disease,  with  no significant  central  canal  stenosis or  foraminal  narrowing and  that \nthe lumbar spine actually looked fairly benign.  There was a left foraminal disc bulge at \nL3-4 which correlated with the left anterior thigh pain, but it only caused minimal stenosis \nand no obvious neural compression.  The assessment provided for cervical spondylosis \nand chronic lumbar radiculopathy and further provided under the plan that he did not have \nmuch  to  offer  her  and  recommended  her  joining  the  aquatics  facility  and  considering \nbariatric  surgery.    The  report  went  on  to  provide  that  the  reason  for  the  referral  was \ndietary.  (Cl.  Ex.  2,  P.  5-7)    A  part  of  the  report  that  had  been  apparently  entered  on \nSeptember  11,  2019,    provided  she  had  developed  increasing  neck  pain,  tingling  and \nnumbness to her arms, with a sense of weakness to her arms. (Cl. Ex. 2, P. 8-11)  The \npart of the report entered August 22, 2019, provided the claimant had earlier fallen down \nsome  stairs  and  since  that  time  had  developed  significant  back  and  leg  pain,  but  had \ngradually improved with the recommended physical therapy. (Cl. Ex. 2, P. 12-15) \n\nSOWELL – G804085 \n \n7 \n \nThe  MRI  of  the  spine  dated  June  15,  2018,  provided  for  a  left  neural  foraminal \nzone disc protrusion without neural foraminal narrowing at L3-4 and L4-5 as mentioned \nsupra. (Cl. Ex 3, P. 1)  A follow-up by Dr. Wilkins on July 2, 2018, provided the claimant \nreported having muscle spasms of her back and had not returned to work due to too many \nrestrictions.  (Cl.  Ex.  3,  P.  5)    An  initial  evaluation  by  Dr.  Vargas  dated  July  9, 2018, \nprovided the claimant had been referred by Workers’ Comp for an evaluation of back and \nhip pain after a fall down some stairs.  She presented with pain and numbness on the left \nside which had been acute since the accident. The report provided for physical therapy \nof  the  lumbar  spine  with  a  burst  of  steroids  and  a  Medral  dose  pack.    The  report  also \nprovided the claimant could return to work on June 10, 2018. (Cl. Ex. 3, P. 9)  The claimant \nreturned  to  Dr.  Vargas  on  August  6,  2018.    This  report  provided  for  mild-multilevel \ndegeneration  of  the  disks  with  some  mild  protrusions.  The  report  also  mentioned \ndegenerative arthritis and  facet arthropathy at  L4-5.   Dr.  Vargas  opined  that the  report \nprovided no objective findings of injury. (Cl. Ex. 3, p. 10)   \nA  sensory  and  motor  nerve  study  was  performed  on  August  23,  2018,  and  the \nreport  provided  no  electrodiagnostic  evidence  of  a  lumbar  radiculopathy,  peripheral \nneuropathy, or focal tibial or peroneal nerve entrapment.  In addition, the L2-3 muscles \nwere  screened  due  to  thigh  complaints  and  were  normal  with  no  focal  lateral  femoral \ncutaneous sensory loss seen on the physical exam. (Cl. Ex. 3, P.11)   \nAn office visit on September 6, 2018, provided the claimant suffered from multilevel \ndegeneration of the disks with some mild protrusions at different levels that were more \npronounced at the L4-5. (Cl. Ex. 3, P.12)  Dr. Vargas released the claimant to full-duty on \n\nSOWELL – G804085 \n \n8 \n \nOctober 4, 201, at maximum medical improvement, with a zero percent (0%) permanent \nimpairment of the lower back. (Cl. Ex. 3, P.14) \n A Functional Capacity Evaluation was performed on October 15, 2018. The \nresults of the evaluation indicated that an unreliable effort was put forth with only 14 of 50 \nconsistency measures within the expected limits.  Consequently, the functional capacity \nof the claimant was unknown. (Cl. Ex. 3, PP. 15-16)  The claimant obtained a change of \nphysician  by  an  Order  from  the  Commission  dated  June  7,  2019,  to  see  Dr.  Noojan \nKazemi, a member of the respondent’s certified managed care organization.  The Order \nprovided  that  any  party  feeling  aggrieved  by  the  Order  could  appeal  within thirty    (30) \ndays, but no appeal was noted in the record. (Cl. Ex. 3, P. 17)  The doctor would not see \nthe claimant without a new MRI and the respondents would not authorize one. (Cl. Ex. 3, \nP. 18)   \nThe    claimant    received    two  (2)  lumbar    medial    branch    blocks   on    March    5, \n2020.   (Cl. Ex. 3, P.20)  Later on June 31, 2019, Stephanie Whaley, the case manager \nissued  an  email  which provided that Dr. Kazemi’s office had cancelled the claimant’s \nappointment  due  to  an  out-of-date  MRI,  but  would  reschedule  once  an  MRI  was \nperformed.  The previous attorney for the claimant withdrew. (Cl. Ex. 3, P.21) \nThe trauma assessment documents  in regard to  the claimant’s visit to Jefferson \nRegional Emergency Room on May 31, 2018, provided the claimant had fallen down three \n(3) stairs on her left side. (Cl. Ex. 4, PP. 25-27)  The diagnosis provided for a contusion \nof the left and right hand, a knee contusion, and a lumbar strain. (Cl. Ex. 4, PP. 29–31)  \nThe  radiology  reports  in  regard  to  her  spine  provided  that  vertebral  body  heights and \nintervertebral   disc   spaces   were   normal   and   no   acute   or   osseus   lesions   were \n\nSOWELL – G804085 \n \n9 \n \ndemonstrated. (Cl. Ex. 4, PP. 32–35)  An MRI report dated June 15, 2018, provided for \nnormal alignment, vertebral body heights and intervertebral disc spaces. (Cl. Ex. 4, P. 54)  \nAn   MRI   report   dated   September   18,   2019,   provided   that   there   were   no   acute \nposttraumatic  abnormalities  but  multilevel  degenerative  changes  in  the  mid  to  lower \ncervical  spine,  specifically  degenerative  disc  disease  at   L3-4  and  L4-5.   (Cl. Ex. 4, \nPP. 209-210)    \nA cervical MRI was obtained on February 9, 2021, due to a history of neck pain.  \nThe report provided multilevel degenerative changes, with mild foraminal stenosis on the \nleft at C3-4 and bilaterally at C 4-5. (Cl. Ex. 4, P. 264)  The claimant returned to Jefferson \nRegional  for  left  foot  pain  and  an  x-ray  was  provided  on  February  23,  2022.    An \nunremarkable radiographic evaluation of the foot resulted. (Cl. Ex. 4, P. 284) \nIt is noted that “Claimant’s Exhibit Six” is a repeat of an earlier exhibit. \nThe respondents exhibit included the deposition of the claimant as “Respondents’ \nExhibit  1”  in  the  matter  currently  before  the  Commission.  A  second  deposition  of  the \nclaimant taken in the case of Lisa Sowell v. Evergreen Packaging which was pending in \nthe United States District Court for the Eastern District of Arkansas, Pine Bluff Division, \nwas also admitted into the record without objection. (Resp. Ex. 2)  In this deposition, the \nclaimant was asked if she was aware that her therapist had indicated that her complaints \nwere inconsistent with the severity of her injury and she responded she had not been told \nthat. (Resp. Ex 2, PP. 62-63)  The claimant also admitted in this deposition that Dr. Vargas \nhad removed her work restrictions. (Resp. Ex. 2, P. 68)  The claimant was also questioned \nabout a letter she had written where she stated she was disabled, could not lift over five \n(5) pounds, could not bend over, could not stand over fifteen (15) minutes, and could not \n\nSOWELL – G804085 \n \n10 \n \nsit over  twenty (20) minutes, and in response she admitted that no doctor had told her \nthat.  She also admitted that when she wrote the letter, Dr. Vargas had already released \nher to return to full-duty. (Resp. Ex 2, P. 74)     \nThe  respondents  also  submitted  the  deposition  of  Dr.  Victor  Vargas,  which  was \nadmitted  into  the  record  without  objection  as “Respondents’  Exhibit  3”.  He  was \nquestioned  about  a  Functional  Capacity Evaluation  and  responded,  “The  functional \ncapacity  evaluation  is  tailored  to  evaluate  the  patient  and  they  supposed  to  do  a \nstandardized evaluation and physical and that’s why the report it come to us after it’s \ndone,  but  there  are  some  providers  who  do  that.    I  don’t  do  functional  capacity \nevaluations.”  He agreed that a physical therapist performed the evaluation. (Resp. Ex. 3, \nPP. 15-16)   Dr. Vargas admitted he had performed a physical evaluation of the claimant \nwhen she came with an MRI, after being referred by the workers’ compensation carrier.  \nHe went on to state, “I did not find specific injury.  I found a complaint of symptoms of \nback pain and we did evaluation with x-rays, did not show any evidence of acute injury.  \nAnd I reviewed a report of the MRI that was at that moment only available, no images, \nthat showed no evidence of acute injury.”  He acknowledged disc protrusions at L3-4 and \nL4-5. (Resp. Ex. 4, PP. 20-21)  The following questioning then occurred: \nQ.  Are those injuries consistent with the type of fall she had? \n \nA.  These are not injuries.  Those are degeneration of the disk, and other changes \nthat she has in the lumbar spine are consistent with degeneration.  The MRI was \ndone a few days after the injury. \n \nQ.  You didn’t attribute it to degeneration at the time? \n \nA.  No.  No.  There’s no relation in those findings with the injury. \n \nQ.  Sir? \n \n\nSOWELL – G804085 \n \n11 \n \nA.  The findings of the MRI, those are not injuries.  Those findings are degeneration \nof the spine. \n \nQ.  You’re making a subjective decision on that, are you not? \n \nA.  That’s what we know about those findings and the MRI.  That, along with the \nother findings she has in the lumbar spine, it shows some mild protrusions of the \ndisks,   those   are   degeneration.      Bulging   of   the   disks   are   not   considered \nposttraumatic, like fractures or other herniated disks with extrusions.  \n(Resp. Ex. 3, P. 22)  \n \nDr. Vargas was then asked the following question: \n \nQ.  Well do you agree that the disk protrusions are consistent with a fall, whether \nthey’re due to degenerative disease or aggravated?  Do you agree that that’s \nconsistent with that type of accident? \n \nA.  No.  I don’t consider that those findings on the report are consistent with an \ninjury  to  the  spine.   That’s what I said.  There’s a degeneration of the spine.  \nThere’s no evidence in that MRI report that she had an injury to the spin.  So those \nbulging disk and protrusions are, in my opinion, not post traumatic. (Resp. Ex. 3, \nP. 24) \n \nHe did admit that the fall could have aggravated her problem. (Resp. Ex. 3, P. 25) \n \nThe  respondents  also  submitted  a  complaint  filed  in  the  Eastern  District  of  the \nUnited  States  District  Court  alleging  a  violation  of  42  U.S.C.  12112(a)  and  an  EEOC \nclaim. (Resp. Ex. 4, PP. 1-8)  In regard to the change of physician,  an email from the \nCommission  dated  November  4,  2021,  provided  that a  change of physician  had  been \nrequested, and it requested a recommendation for a referral so the matter could be sent \nto the physician for review.  An email from the Steele Law Firm appeared to state that \nan attempt to locate a doctor who would see the claimant without a new MRI was being \nattempted. (Resp. Ex. 4, PP. 9-16) \nFinally, the respondents also submitted medical records in regard to this claim, and \nwhich additionally included physical therapy reports from July 13, 2018, through July 23, \n2018,  with  the  reports  referring  to  probable  multiple  level  degenerative  changes  and \n\nSOWELL – G804085 \n \n12 \n \nlumbar strain/sprain. (Resp. Ex. 5, PP. 7-20)  The claimant returned to physical therapy \non    the    dates    of    July    24,  2018,    through    August  3,  2018,  with  the  reports  again \nproviding for multiple level degenerative changes and referring to ischial bursitis. (Resp. \nEx. 5, PP. 23-34) \nThe claimant presented to Dr. Vargas on August 6, 2018, and his report provided \nthat the MRI showed degenerative disc disease and recommended weight loss and an \nEMG study.  (Resp. Ex. 5, PP. 35-37)  The claimant continued to receive physical therapy \nfrom  August  6,  2018,  through  August  23,  2018.    The  respondents  also submitted  the \nEMG nerve conduction study performed by Dr. Sprinkle as mentioned, supra. In addition, \nthe  report  by  Dr.  Vargas  as  described, supra  was  included  which  provided  for  a  zero \npercent (0%) impairment rating. \nThe  respondents  also  introduced  the  emergency  room  records  for  the  claimant \nafter  an  automobile  accident  where  there  was  a  complaint  of   neck  and  low  back \npain,  and  the  report  provided  for  normal  x-rays  and  a  discharge  home.  (Resp. \nEx.  5, PP. 96-104)  The respondents also introduced records from Liberty Chiropractic, \nwith the initial visit on December 13, 2019, which referred to the automobile accident of \nNovember 11, 2019, and shoulder, legs neck, back and arm pain along with two (2) big \ntoes.  The physicians report from Liberty Chiropractic on January 16, 2020, provided the \nclaimant had made a complete recovery. (Resp. Ex. 5, PP. 105-128)   \nDISCUSSION AND ADJUDICATION OF ISSUES \n \nI. \nIn regard to the issue of constitutionality and due process regarding the Arkansas \nWorkers’  Compensation  Commission,  the  Arkansas  Court  of  Appeals  has  soundly \nrejected   similar   arguments   in   regard   to the  Arkansas  Workers’  Compensation \n\nSOWELL – G804085 \n \n13 \n \nCommission Act being unconstitutional.  Sykes v. King Ranch Ready Mix, Inc., 2011 Ark \nApp. 271;  Rippe v. Delbert Hooten Logging, 100 Ark. 277, 266 S.W. 3d 217 (2007);  Long \nv. Wal Mart Stores, Inc., 98 Ark. App. 70, 250 S.W.3d 263 (2007).  That based upon the \nabove,  it  is  found  that the  challenges to the Arkansas Workers’ Compensation Act are \nwithout merit and the Act is in fact constitutional. \nII. \nAdditionally, the claimant objected to the admissibility of the Functional Capacity \nEvaluation and contended that Daubert was applicable, and consequently, the evaluation \nwas inadmissible.  The evaluation was admitted at the time of the hearing due to the clear \nfact that the Commission has broad discretion in regard to the admissibility of evidence, \nand that its decision will not be reversed absent a showing of abuse of discretion.  Brown \nv. Alabama Elec. Co., 60 Ark. App. 138, 959 S.W.2d 753 (1998).  Ark. Code Ann. §11-9-\n705(a)  goes  as  far  to  state  that  the  Commission, “shall not be bound by technical or \nstatutory rules of evidence or by technical or formal rules of procedure. \nA  deeper  review  of Daubert  provides  that  Arkansas  courts  have  adopted  the \nDaubert standard on other issues and it requires the trial court to conduct a preliminary \ninquiry  focusing  on  the  reliability  of  the  process  used  to  generate  the  evidence,  the \npossibility that admitting the evidence would overwhelm, confuse, or mislead the jury, and \nfinally review the connection between the evidence to be offered and the disputed factual \nissues  in  the  particular  case. Farm  Bureau  Mutual  Ins.  Co.  v.  Foote,  341  Ark.  105,  14 \nS.W.3d  512  (2000).    Here  there  is  no  jury  to  mislead  and  the  Functional  Capacity \nEvaluation  has  been  used for  years  with  the Commission proving  itself  competent  and \ncomfortable in evaluating these tests and giving it the appropriate weight in reaching its \ndecisions.  Further, there is clearly a connection between the evidence offered by the test \n\nSOWELL – G804085 \n \n14 \n \nand  the  disputed  factual  issue.  Consequently,  the  Functional  Capacity  Evaluation  is \nadmissible. \nIII. \nIn  the  current  matter  before  the  Commission,  Dr.  Vargas  the  treating  physician, \nnor any other physician placed any restrictions on the claimant.  Although the claimant \nhas asked for another MRI, she has received multiple MRIs from the date of the fall on \nthe stairs.  The multiple MRIs always provided for multilevel degenerative disc disease.  \nA   sensory   and   motor   nerve   study   was   also   performed   which   provided   for   no \nelectrodiagnostic evidence of lumbar radiculopathy, peripheral neuropathy, or focal tibial \nor peroneal never entrapment.  Dr. Vargas released the claimant on September 6, 2018, \nto full-duty with an entitlement to a zero percent (0%) impairment rating in regard to her \nlower  back.    Claimant  was  later  involved  in  an  automobile  accident  and  the  radiology \nreports in regard to her spine following the accident provided her vertebral body heights \nand  the  intervertebral  disc  spaces  were  normal,  and  later  this  appeared  to  be  at  least \npartially  confirmed  by an  MRI of  the  cervical  area,  which  also  referred  to  degenerative \nchanges in the mid to lower cervical spine.  Dr. Vargas testified he found no specific injury \nand  the  physical  therapy  reports  involving  the  claimant  also  referred  to  degenerative \nchanges.  Finally, Liberty Chiropractic records after the automobile accident provided that \nthe claimant had made a complete recovery.  \nIt was stipulated that the claimant suffered a compensable lower back injury.  The \nclaimant is therefore not required to establish “objective medical findings” in order to prove \nthat she is entitled to additional benefits. Chamber Door Indus., Inc. v Graham, 59 Ark. \nApp. 224, 956 S.W.2d 196 (1997).  However, when assessing whether medical treatment \nis reasonably necessary for the treatment of a compensable injury, we must analyze the \n\nSOWELL – G804085 \n \n15 \n \nproposed  procedure  and  the  condition  that  it  is  sought  to  remedy.   Deborah  Jones  v. \nSeba, Inc., Full Workers’ Compensation filed December 13, 1989. (Claim No. D512553).  \nThe respondent is only responsible for medical services which are causally related to the \ncompensable  injury.    Treatments  to  reduce  or  alleviate  symptoms  resulting  from a \ncompensable  injury,  to  maintain  the  level  of  healing  achieved,  or  to  prevent  further \ndeterioration  of  the  damage  produced  by  the  compensable  injury  are  considered \nreasonable  medical  services. Foster  v.  Kann  Enterprises,  2009  Ark.  App.  746,  350 \nS.W.2d  796  (2009).    Liability  for  additional  medical  treatment  may  extend  beyond  the \ntreatment healing period as long as the treatment is geared toward management of the \ncompensable injury. Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 180 S.W.3d 31 \n(2004).  Dalton  v.  Allen  Engineering  Co.,  66  Ark.  App  260,  635  S.W.2d  543.    Injured \nemployees  have  the  burden  of  proving,  by  a  preponderance  of  the  evidence,  that  the \nmedical treatment is reasonably necessary for the treatment of the compensable injury. \nOwens  Plating  Co.  v.  Graham,  102  Ark.  App  299,  284  S.W.  3d  537  (2008).    What \nconstitutes reasonable and necessary treatment is a question of fact for the Commission. \nAnaya v. Newberry’s 3N Mill, 102 Ark. App. 119, 282 S.W.3d 269 (2008).  Here, even if \ntotally disregarding the Physical Capacity Evaluation, all the remaining evidence provides \nthat  the  claimant’s  problems  are  the  result  of  degenerative  disc  disease  and  not \na  work-related  injury,  based  upon  the  evaluations  by  Dr.  Vargas  and  other  healthcare \nproviders, along with various x-rays and MRIs.  Consequently, it is clear the claimant has \nfailed  to  satisfy  the  required  burden  of  proof  for  additional  medical  treatment  and \nspecifically for an additional MRI and additional physical therapy. \n  \n\nSOWELL – G804085 \n \n16 \n \nIV. \nIn regard to Permanent and Total Disability benefits, Ark. Code Ann. § 11-9-519(e) \nprovides: \n(1) Permanent and total disability means inability because of compensable injury \nor  occupational  disease  to  earn  any  meaningful  wages  in  the  same  or  other \nemployment. \n(2) The  burden  of  proof  shall  be  on  the  employee  to  prove  inability  to  earn  any \nmeaningful wage in the same or other employment. \nArk. Code Ann. §11-9-102 (4) (F) provides as follows: \n(ii)  (a)  Permanent  benefits  shall  be  awarded  only  upon  a  determination  that  the \ncompensable injury was the major cause of the disability or impairment. \n(b) If any compensable injury combines with a preexisting disease or condition or \nthe natural process of aging to cause or prolong disability or need for treatment, \npermanent  benefits  shall  be  payable  for  the  resultant  condition  only  if  the \ncompensable  injury  is  the  major  cause  of  the  permanent  disability  or  need  for \ntreatment. \nHere, the claimant has failed to prove that the compensable injury was the major \ncause of any permanent and total disability.  When making this determination in regard \nto  the  issue  of  permanent  and  total  disability  based  upon  the  applicable  law  and  the \nevidence discussed supra, there is no alternative but to find that the claimant has failed \nto satisfy her burden of proof in demonstrating, by the credible evidence of record, that \nshe is permanently and totally disabled. \nAfter weighing the evidence impartially, without giving the benefit of the doubt to \neither party, it is found that the claimant has failed to satisfy her burden of proof that she \n\nSOWELL – G804085 \n \n17 \n \nis  entitled  to  additional  medical  treatment,  specifically  an  additional  MRI and  physical \ntherapy.    Additionally, the  claimant  has  failed  to  satisfy her  burden of  proof  that  she  is \nentitled to permanent total disability.  If not already paid, the respondents are ordered to \npay the cost of the transcript forthwith. \nIT IS SO ORDERED. \n  \n       ___________________________ \n      JAMES D. KENNEDY \n      Administrative Law Judge","textLength":32141,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G804085 LISA SOWELL, EMPLOYEE CLAIMANT VS. EVERGREEN PACKAGING, LLC, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE COMPANY / GALLAGHER BASSETT SERVICES, INC., CARRIER /TPA RESPONDENT OPINION FILED JANUARY 10, 2023 Hearing before Administrative Law Judge, James...","outcome":"granted","outcomeKeywords":["granted:2","denied:1"],"injuryKeywords":["back","neck","lumbar","shoulder","cervical","hip","knee","strain"],"fetchedAt":"2026-05-19T23:11:12.984Z"},{"id":"alj-G908137-2023-01-09","awccNumber":"G908137","decisionDate":"2023-01-09","decisionYear":2023,"opinionType":"alj","claimantName":"Lexington Arthur","employerName":"Staffmark Investments, LLC","title":"ARTHUR VS. STAFFMARK INVESTMENTS, LLC AWCC# G908137 JANUARY 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//ARTHUR_LEXINGTON__G908137_20230109.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ARTHUR_LEXINGTON__G908137_20230109.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. G908137 \n \nLEXINGTON S. ARTHUR, \nEMPLOYEE                                                                                                              CLAIMANT \n \nSTAFFMARK INVESTMENTS, LLC, \nEMPLOYER                                                                                                         RESPONDENT  \n \nINDEMNITY INS. CO. OF NORTH AMERICA/ \nCCMSI \nINSURANCE CARRIER/TPA                                                                     RESPONDENT \n \n \nOPINION AND ORDER FILED JAUNUARY 9, 2023 \nHOLDING RESPONDENTS’ MOTION TO DISMISS WITHOUT PREJUDICE IN \nABEYANCE FOR 45 DAYS \n \nHearing conducted on Wednesday, January 4, 2023, before the Arkansas Workers’ Compensation \nCommission (the Commission), Administrative Law Judge  (ALJ) Mike Pickens, in Little Rock, \nPulaski County, Arkansas. \n \nThe  claimant,  Mr.  Lexington  S.  Arthur,  pro  se,  of  Hot  Springs,  Garland  County,  Arkansas, \nappeared in person at the hearing.  \n \nThe  respondents  were  represented  by  the  Honorable  Jarrod  Parrish,  Worley,  Wood  &  Parrish, \nLittle Rock, Pulaski County, Arkansas. \n \n \nSTATEMENT OF THE CASE \n \n  A hearing was conducted on Wednesday, January 4, 2023, to determine whether this claim \nshould be dismissed for lack of prosecution pursuant to Ark. Code Ann. § 11-9-702(a)(4) (2022) \nLexis  Replacement)  and  Commission  Rule  099.13  (2022  Lexis  Repl.).  The  respondents  filed  a \nletter  motion  to  dismiss  with  the  Commission  on  November  14,  2022,  requesting  this  claim  be \ndismissed without prejudice for lack of prosecution.  \n           In accordance with applicable Arkansas law, the claimant was mailed due and proper legal \nnotice of both the  respondents’ motion to dismiss as well as a copy of the hearing notice at his \ncurrent addresses of record via the United States Postal Service (USPS), First Class Certified Mail,  \n\nLexington S. Arthur, AWCC No. G908137 \n \n2 \n \nReturn Receipt Requested, which he  received on  November 19, 2022. (Commission Exhibit 1). \nBy letter dated November 29, 2022, the claimant attached a copy of the Form AR-C that he initially \nfiled with the Commission. He stated he wanted... \n                     ...to request a continuance of my workers’ compensation claim due  \n                     to additional medical expenses. The employer is aware that I have a  \n                     lifetime of medical procedures required due to my workplace injuries.  \n                     I also need my medical records. \n \n(AWCC File, Claimant’s Letter to the Commission dated November 29, 2022, Claimant’s Exhibit \n1).  \n          The hearing was recessed to allow the claimant (as well as his father and grandmother who \nattended the hearing with him) the opportunity to talk to one of the Commission’s legal advisors \nand, thereafter, to the respondents’ attorney. When the parties went back on the record it appeared \nthere  may  exist  an  issue  as  to  what  extent  the  claimant  may  require  future  medical  treatment – \nspecifically, “continued vascular lab surveillance for life.” (Cl’s Ex. 1A; Respondents’ Ex. 1).  \n The  record  herein  consists  of  the  hearing  transcript  and  any  and  all  exhibits  contained \ntherein and attached thereto, as well as the Commission’s entire file in this matter by reference. \nDISCUSSION \n Consistent with Ark. Code Ann. § 11-9-702(a)(4), as well as our court of appeals’ ruling \nin Dillard vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively demonstrates the claimant has \nneither requested a hearing made an informed decision not to pursue this claim. \n\nLexington S. Arthur, AWCC No. G908137 \n \n3 \n \n Therefore, after a thorough consideration of the facts, issues, the applicable law, and other \nrelevant matters of record, and as I advised the parties on the record at the hearing, I hereby make \nthe following: \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n 1. The Commission has jurisdiction of this claim. \n \n 2. The ALJ will hold in abeyance a decision on the respondents’ subject motion to \n                  dismiss without prejudice for a period of 45 days, or until Monday, February 20, \n                  2023 (since 45 days from the hearing date falls on a Saturday). \n \n      3.         The parties have 45 days from the hearing date, or until Monday, February 20, \n                  2023, to obtain any and all additional information they require and to attempt to  \n                  resolve any and all outstanding issues, if any remain.  \n \n      4.        If, after the expiration of this 45-day time-period the claimant does not request, in \n                 writing (with a copy to the respondents’ attorney, of course), a hearing before the \n                 Commission and advise both the Commission and the respondents exactly what \n                 specific issues he believes are ripe for a hearing, the ALJ will grant the respondents’  \n                 motion to dismiss filed November 14, 2022, without prejudice, and without the \n                 necessity of either the respondents filing another motion, and without holding \n                 another hearing on the motion. \n \n     If they have not already done so, the respondents shall pay the court reporter’s invoice within \n \n twenty (20) days of the filing of this opinion and order. \n \n     IT IS SO ORDERED.  \n \n \n                                                                                               ______________________________ \n                                                                                               Mike Pickens \n                                                                                               Administrative Law Judge","textLength":6069,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G908137 LEXINGTON S. ARTHUR, EMPLOYEE CLAIMANT STAFFMARK INVESTMENTS, LLC, EMPLOYER RESPONDENT INDEMNITY INS. CO. OF NORTH AMERICA/ CCMSI INSURANCE CARRIER/TPA RESPONDENT OPINION AND ORDER FILED JAUNUARY 9, 2023 HOLDING RESPONDENTS’ MOTION TO DISMISS WITHOU...","outcome":"dismissed","outcomeKeywords":["dismissed:3"],"injuryKeywords":["back"],"fetchedAt":"2026-05-19T23:11:04.647Z"},{"id":"alj-G700777-2023-01-09","awccNumber":"G700777","decisionDate":"2023-01-09","decisionYear":2023,"opinionType":"alj","claimantName":"Louis Jacobs","employerName":"Gerdau Macsteel, Inc","title":"JACOBS VS. GERDAU MACSTEEL, INC. AWCC# G700777 JANUARY 9, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JACOBS_LOUIS_G700777_20230109.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JACOBS_LOUIS_G700777_20230109.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  G700777 \n \nLOUIS J. JACOBS, Employee                                                                           CLAIMANT \n \nGERDAU MACSTEEL, INC., Employer                                                     RESPONDENT \n \nAMERICAN ZURICH INSURANCE CO., Carrier                                       RESPONDENT \n \n \n \n OPINION FILED JANUARY 9, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, \nSebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by LEE J. MULDROW, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On November 21, 2022, the above captioned claim came on for hearing at  Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on  October 5, 2022 and a \npre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.   The prior Opinion of February 7, 2022 is final. \n 3.   The claimant  was earning sufficient wages to entitle him to compensation at \nthe weekly rates of $621.00 for total disability benefits and $496.00 for permanent partial \ndisability benefits. \n\nJacobs – G700777 \n \n 4.   Claimant reached maximum medical improvement on February 1, 2021. \n 5.      Respondent  has  accepted  liability  for  permanent  partial  disability  benefits \nbased on a 30% rating to the body as a whole.  Respondent has paid an attorney fee on \nthese benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Whether respondent is liable for payment for Linda Lay’s services at a rate \ngreater  than  the  maximum  allowable  rate  permitted  in  the  fee  schedule.    Alternatively, \nwhether respondent is obligated to find someone to treat claimant’s post-traumatic stress \ndisorder at the fee schedule rate. \n2.    Whether respondent should be held in contempt for failing to comply with the  \nOpinion of February 7, 2022. \n3.    The date respondent is to begin paying claimant’s attorney the claimant’s  \nportion of the attorney fee. \n At  the  time  of  the  hearing  the  parties  agreed  to  stipulate  that respondent  would \nbegin paying claimant’s attorney the claimant’s portion of the attorney fee on January 23, \n2023.   \n The claimant’s contentions are set forth in his pre-hearing questionnaire attached \nto Commission’s Exhibit #1 as Exhibit #1 and #2. \n The  respondent’s    contentions  are  set  forth  in  its  pre-hearing  questionnaire \nattached to Commission’s Exhibit #1 as Exhibit #3.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \n\nJacobs – G700777 \n \n3 \n \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non October 5, 2022 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.   The parties’ stipulation that respondent will begin paying claimant’s attorney \nthe claimant’s portion of the attorney fee on January 23, 2023, is also hereby accepted \nas fact.   \n 3.   Respondent is not in contempt for failing to comply with the Opinion of February \n7, 2022.   \n 4.      Claimant  has  failed  to  prove  by  a  preponderance  of  the  evidence  that \nrespondent is liable for paying for Linda Lay’s services at a rate greater than the maximum \nallowable rate permitted in the Commission’s fee schedule. \n 5.   Respondent has an affirmative duty to provide claimant with medical services \nfor his post-traumatic stress disorder. \n \n FACTUAL BACKGROUND \n Claimant suffered a compensable injury to various parts of his body while working \nfor respondent on January 26, 2017.   As a result of that injury claimant has undergone \nnumerous  medical  treatments  and  surgeries.    Claimant  was  assigned  a  combined \nimpairment rating of 30% to the body as a whole for his compensable injuries which was \naccepted and paid by respondent.  Claimant underwent a functional capacities evaluation \n\nJacobs – G700777 \n \n4 \n \non April 28, 2021, which showed a consistent and reliable effort and determined that while \nclaimant had the ability to perform some work in the sedentary category of work, “He did \nnot  perform  work  at  a  level  that  would  allow  him  to  work  over  the  course  of  a  normal \nworkday in a competitive work environment.”    \n Claimant had previously requested a hearing on his entitlement to permanent total \ndisability benefits as well as a controverted attorney fee and lump sum payment of the \nattorney  fee.    Prior  to  the  hearing  the  parties  agreed  to  stipulate  that  claimant  is \npermanently totally disabled.  In an opinion filed February 7, 2022, this administrative law \njudge found that respondent had controverted claimant’s entitlement to permanent total \ndisability benefits and awarded claimant’s attorney a fee on all indemnity benefits in \nexcess of the 30% impairment rating.  Claimant’s attorney was also awarded payment of \nhis fee in a lump sum.  The February 8, 2022 opinion was not appealed and the parties \nhave stipulated that it is final. \n Following the claimant’s injury he has undergone counseling treatment from Linda \nLay for post-traumatic stress disorder.  At the time of the January 10, 2022 hearing the \nfollowing discussion took place. \n   MR. WALKER:  I think there is also a stipulation that the \n  respondents have indicated that they accept liability for payment \n  of treatment by Linda Lay for psychological services.  Is that \n  right, Mr. Muldrow? \n \n   MR. MULDROW:  Yes.  And that has been paid.   \n \n   MR. WALKER:  So we would like that included in the \n  stipulations so we don’t have to revisit that issue again, Judge. \n \n   THE COURT:   He is entitled to treatment from who, \n  Dr. Linda Lay? \n \n\nJacobs – G700777 \n \n5 \n \n   MR. MULDROW:  Dr. Linda Lay for PTSD.  Mr. Walker  \n  is absolutely right.  Linda Lay’s treatment was approved early \n  on, a couple years ago.  Inexcusably the insurance company \n  paid part of it and then stopped paying and did not get it paid \n  in time.  We finally have gotten that corrected, but the bottom \n  line is Linda Lay is entitled to payment for her time.  It is not \n  challenged by the insurance company or by Gerdau.  And it \n  it my understanding that she has been paid in full and I have \n  provided documentation to Mr. Walker to that effect. \n \n   THE COURT:  Okay. So a stipulation with regard to that \n  medical treatment and that claimant is permanently and totally \n  disabled leaving as the only issue the attorney fee issues. \n \n \n Since the time of the January 10, 2022 hearing, an issue has arisen as to whether \nrespondent is liable for payment of services provided by Linda Lay at a rate greater than \nthe maximum allowable rate permitted in the fee schedule. \n \nADJUDICATION \n \n Respondent  acknowledges  that  claimant  is  entitled  to  treatment  for  his  post-\ntraumatic  stress  disorder  resulting  from  his  compensable  injury.    Counseling  for  post-\ntraumatic stress disorder has been provided by Linda Lay.  Lay has apparently billed for \nher counseling services at the rate of $160.00 per hour, which exceeds the fee schedule \nrate.  At issue is whether respondent is liable for payment for Lay’s services at a rate that \nis greater than the maximum allowable rate in the fee schedule. \n After my review of the evidence and the applicable law, I find that respondent is \nnot liable for payment for Lay’s services at a rate in excess of the maximum allowable \nrate permitted by the fee schedule.   \n Initially,  claimant  contends  that  respondent  has  already  agreed  to  pay  Lay  for \nservices  at  a  rate  greater  than  that  permitted  under  Rule  30  and  that  respondent  is  in \n\nJacobs – G700777 \n \n6 \n \ncontempt for failing to comply with the prior opinion of February 7, 2022.  After claimant’s \ninjury, Lay provided counseling services to the claimant and apparently a portion of those \nservices were paid by the respondent.  At the prior hearing in this claim on January 10, \n2022, respondent acknowledged that Lay was entitled to payment for her services and \nAttorney Muldrow indicated that Lay had been paid in full.  This agreement that Lay was \nentitled  to  payment  for  services  rendered  was  Finding  of  Fact  &  Conclusion  of  Law \nnumber 3 in the prior opinion filed on February 7, 2022. \n3.   The parties’ stipulation that Linda Lay is entitled \n to  payment for services provided to claimant is also hereby \n accepted as fact. \n \n \nClaimant contends that the stipulation was to pay for Lay’s services at her billing \nrate as opposed to the fee schedule.  I do not agree.  While respondent agreed at the \nprior hearing that Lay was entitled to payment for her services, respondent did not indicate \nthat those services would be paid at a rate greater than the fee schedule.  Nor did the \nopinion of February 7 make a finding or order respondent to make payment at a rate in \nexcess of the fee schedule. Accordingly, I do not find that the respondent has previously \nstipulated  to  pay  Lay  at  a  rate  greater  than  that  permitted  under    Rule 30  or  that \nrespondent is in contempt for failing to comply with the opinion of February 7, 2022. \nClaimant also contends that respondent waived any claim that it might have to limit \npayment to Lay to payment under Rule 30 by paying for services at the billed rate and by \nagreeing to continue to do so at the hearing on January 10, 2022.  For reasons previously \ndiscussed, I do not find that respondent agreed to pay at a rate greater than that allowed \nunder Rule 30 at the prior hearing. \n\nJacobs – G700777 \n \n7 \n \nIn addition, I do not find that respondent waived its right to make payment under \nRule 30 based on payment for any prior services.  First, as correctly noted by respondent \nin its brief, Attorney Davis in a letter to Attorney Walker dated March 25, 2020 indicated \nthat respondent was willing to pay for additional services performed by Lay “provided that \nthe rate per session is based on the Arkansas WC Medical Fee Schedule.”    While \nrespondent  subsequently  agreed  that  Lay  was  entitled  to  payment  for  her  services, \nrespondent  did  not  agree  to  pay  for  those  services  at  a  rate  greater  than  that  allowed \nunder Rule 30. \nFinally,  with  respect  to  this  issue,  I  note  that  Rule  30  addresses  the  issue  of \npayment  in  excess  of  the  maximum  allowable  payment  by  authorizing  recovery  of \npayment  for  amounts  which  exceed  the  maximum  allowable  payment.    See  Rule  30, \nSection 1 K.  While recovery is not an issue here, the language in Rule 30 would indicate \nthat payment of the bill in excess of the maximum allowable rate does not constitute a \nwaiver. \nHaving  found  that  respondent  has  not  previously  stipulated  to  pay  at  a  rate  in \nexcess of the fee schedule or that respondent waived its right to make payment pursuant \nto Rule 30, a discussion of relevant portions of Rule 30 is necessary. \nThe Arkansas Workers’ Compensation Fee Schedule was authorized by A.C.A. \n§11-9-517 which states: \n  The Workers’ Compensation Commission is authorized \n to establish rules, including schedules of maximum allowable \n fees for specified medical services rendered with respect to \n compensable injuries, for the purpose of controlling the cost \n of medical and hospital services and supplies provided  \n pursuant to §§ 11-9-508 – 11-9-516.  (Emphasis added.) \n \n\nJacobs – G700777 \n \n8 \n \nIn accordance with A.C.A. §11-9-517, the Commission adopted Commission Rule \n099.30 [hereinafter Rule 30].  In the General Provisions, Rule 30 indicates that its scope \nincludes: \nA.   Scope. \n1.    This rule does all of the following: \n.... \n   (b)    Establishes schedules of maximum fees by a \nhealth facility or health care provider for such treatment \nor attendance, service, device, apparatus, or medicine. \n    (c)   Establishes procedures by which a health care \nprovider shall be paid the lesser of (1) the provider’s \nusual charge, or (2) the maximum fee established \nunder this rule, or (3) the MCO/PPO contracted price, \nwhere applicable. \n \n \n Rule 30 also contains the following relevant definitions: \n  F.   Definitions. \n  .... \n  34.   “Maximum allowable payment” means the maximum \n  fee for a procedure established by this rule or the  \n  provider’s usual and customary charge, whichever \n  is less, except as otherwise might be specified. \n \n  35.   “Maximum fee” means the maximum allowable fee \n  for a procedure established by this rule. \n   \n  .... \n \n  51.  “Practitioner” means a person licensed, registered \n  or certified as an audiologist, doctor of chiropractic, \n  doctor of dental surgery, doctor of medicine, doctor of \n  osteopathy, doctor of podiatry, doctor of optometry, \n  nurse, nurse anesthetist, nurse practitioner, occupational \n  therapist, orthotist, pharmacist, physical therapist, \n  physician’s assistant, prosthetist, psychologist, or \n  other person licensed, registered, or certified as a \n  health care professional. \n \n  .... \n \n\nJacobs – G700777 \n \n9 \n \n  58.  “Provider” means a facility, health care organization, \n  or a practitioner. \n \n \n According  to  the  documentary  evidence,  Lay  is  a  LPC-Licensed  Professional \nCounselor  and  a  NCC-National  Certified  Counselor.    Therefore,  she  is  licensed  and \ncertified as a health care professional and is subject to payment for services under  Rule \n30.  Rule 30 provides the following with respect to payment for services: \n1.  Payment. \n1.   Reimbursement for health care services shall be the \n                      Lesser of (a) the provider’s usual charge, or (b) the  \n  maximum fee calculated according to the AWCC Official \n  Fee Schedule (and/or any amendments to that fee \n  schedule) or (c) the MCO/PPO contracted price, where \n  applicable.  A licensed provider shall receive no more \n  than the maximum allowable payment, in accordance \n  with this rule, for appropriate health care services \n  rendered to a person who is entitled to health care \n  service. \n \n \n Rule 30 is clear that Lay is limited to the lesser of her usual charge; the maximum \nfee calculated according to the AWCC Official Fee Schedule or the MCO/PPO contracted \nprice.  No evidence has been submitted indicating that Lay should be paid pursuant to \nthe MCO/PPO contracted price. Therefore, payment for her services is limited by law to \nthe lesser of her usual charge or the AWCC Fee Schedule. \n I also note that Rule 30 prohibits a provider from billing a carrier any amount that \nexceeds the maximum allowable payment.  Section 1 L. states: \n  L.  Amounts in Excess of Fees. \n  The provider shall not bill the employee, employer, or \n  carrier for any amount for health care services provided \n  for the treatment of a covered injury or illness when that \n  amount exceeds the maximum allowable payment \n  established by this rule. \n\nJacobs – G700777 \n \n10 \n \n In finding that Lay is limited to the lesser of her usual charge or the AWCC Fee \nSchedule, I note that claimant has cited no authority in support of his contention that the \nCommission has any authority  to  order  payment  of medical  expenses  in  excess  of  the \nrates set forth in Rule 30.  To the contrary, the Courts have recognized that the provisions \nof Rule 30 are mandatory.  In Burlington Industries v. Pickett, 336 Ark. 515, 988 S.W. 2d \n3  (1999), the  Arkansas  Supreme  Court  discussed  Rule 30  in  connection  with an  issue \nregarding payment of medical bills that had not been properly submitted pursuant to Rule \n30.  In doing so, the Court stated: \n  It is obvious that the design of the Rule is to control \n  medical costs for the benefit of all affected by workers’ \n  compensation laws.   In the instant case the full \n  Commission rejected appellant’s argument that  \n  Rule 30’s procedures for submission of medical  \n  bills are prerequisite to a carrier’s payment obliga- \n  tion.  However, there is nothing in Rule 30 which \n  implies its requirements are discretionary.   \n  (Emphasis added.) \n \n \n Subsequently, in ABF Freight Systems v. Dugger, 219 Ark. App. 176, 564 S.W. 3d \n670, the Court of Appeals discussed Rule 30 and preauthorization requirements.  In its \nopinion, the Court cited the Supreme Court’s language quoted above and stated: \n  While noting that a different section is at issue in \n  Burlington – section (I)(F) – our supreme court’s \n  broad language states that the entire rule, unless \n  expressly stated otherwise, is mandatory. \n \n \n Likewise, in this case, there is no language in Rule 30 indicating that payment of \nthe maximum fee is discretionary.  Rule 30 specifically states that payment is to be the \nlesser of the providers usual charge; the maximum fee according to the AWCC Official \n\nJacobs – G700777 \n \n11 \n \nFee Schedule; or the MCO/PPO contracted price.  This language is not discretionary. \n Accordingly, I find that respondent is not liable for payment of Lay’s services at a \nrate greater than that permitted pursuant to Rule 30. \n Claimant  contends that if respondent is not ordered to make payment at Lay’s \nbilled  rate  she  will  most  likely  decline  to  continue  treating  claimant.    At  this  point,  this \ncontention is speculative.  However, I do note that if Lay were to chose not to continue to \ntreat  claimant  for  his  post-traumatic  stress  disorder,  that  respondent  would  still  be \nresponsible  for  providing  all  reasonable  and  necessary  medical  treatment  for  his \ncompensable injury. \n At  the  time  of  the  hearing  Attorney  Muldrow  indicated  that  if  Lay  chose  not  to \ncontinue  treating  claimant  that  claimant  could  file  for  a  change  of  physician  and  the \nCommission would be responsible for finding a new provider to provide counseling.  First, \nI note that pursuant to A.C.A. §11-9-508(a) respondent has the duty to “promptly provide” \nmedical  treatment  as  may  be  necessary  in  connection  with  the  injury  received  by  the \nemployee.    Respondent  has  not  contended  that  claimant  is  not  entitled  to  continued \ncounseling for his  post-traumatic  stress  disorder  as  a  result  of  his compensable  injury.  \nRespondent  cannot  abdicate  its  responsibility  for  promptly  providing  treatment  to  the \nclaimant by sitting by idly and relying upon the Commission to find a provider willing to \ntreat  claimant  pursuant  to  the  rate  set  forth  in  the  fee  schedule.    Respondent has  an \naffirmative duty to provide prompt medical treatment that is reasonable and necessary. \n \nORDER \n Claimant has failed to prove by a preponderance of the evidence that respondent \n\nJacobs – G700777 \n \n12 \n \nshould be held in contempt for failing to comply with the opinion of  February 7, 2022.  In \naddition, claimant has failed to prove by a preponderance of the evidence that respondent \nis liable for paying for Linda Lay’s services at a rate greater than the maximum allowable \nrate permitted in the Commission’s fee schedule. \n The respondent is liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $486.38. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","textLength":19939,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G700777 LOUIS J. JACOBS, Employee CLAIMANT GERDAU MACSTEEL, INC., Employer RESPONDENT AMERICAN ZURICH INSURANCE CO., Carrier RESPONDENT OPINION FILED JANUARY 9, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County,...","outcome":"denied","outcomeKeywords":["denied:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:11:06.780Z"},{"id":"alj-H100386-2023-01-06","awccNumber":"H100386","decisionDate":"2023-01-06","decisionYear":2023,"opinionType":"alj","claimantName":"Trevor Gallant","employerName":"Fusion Properties, Inc","title":"GALLANT VS. FUSION PROPERTIES, INC. AWCC# H100386 JANUARY 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/GALLANT_TREVOR_H100386_20230106.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"GALLANT_TREVOR_H100386_20230106.pdf","fullText":"-1- \n \n BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H100386 \n \nTREVOR GALLANT, Employee        CLAIMANT \n \nFUSION PROPERTIES, INC., Employer     RESPONDENT \n \nBRIDGEFIELD CASUALTY INS. CO., Carrier/TPA       RESPONDENT \n \n \n OPINION FILED JANAURY 6, 2023  \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n       \nClaimant not represented by counsel and not appearing at hearing. \n \nRespondent represented by, LAURA J. PEARCE, Attorney at Law, Fort Smith, Arkansas. \n \n \n STATEMENT OF THE CASE \n \n This case comes on for review following a hearing on respondents’ Motion to Dismiss. \n On  January  7,  2021,  the  claimant  filed  an  AR-C requesting  various  compensation \nbenefits.  The  claim  was  controverted  in  its  entirety.  There  has  been  no  request  for  a  hearing  or \nadditional activity by the claimant since the filing of the Form AR-C.  \n On October 18, 2022, the respondents filed a Motion to Dismiss requesting that this claim \nbe dismissed for lack of prosecution. A hearing was scheduled for December 1, 2022. Notice of \nthat hearing was sent to the claimant by certified mail, return receipt requested on November 1, \n2022. United States Postal Department records indicate that claimant received and signed for the \nnotice on November 3, 2022. The claimant contacted the Legal Advisor division of the Arkansas \nWorkers’  Compensation  Commission  in  Little  Rock,  Arkansas,  and  was  directed  to  contact  the \nWorkers’  Compensation  Commission  office  in  Springdale,  Arkansas.  The  claimant  spoke  with \n\nGallant – H100386 \n \n \n-2- \nmy  administrative  assistant  on  November  4,  2022,  and  indicated  he  does  not  object  to  the \ndismissal and does not wish to proceed with his claim. He also informed the Commission he will \nnot attend the hearing scheduled for December 1, 2022. \nAfter  a  review of  the  respondents’  Motion  to  Dismiss,  the  claimant’s lack  of  desire  to \npursue his claim, and his failure  to appear at the  scheduled hearing, as  well as all other matters \nproperly  before  the  Commission,  I  find  that  the  respondents’  Motion  to  Dismiss  should  and \nhereby is granted pursuant to Commission Rule 099.13. This dismissal is without prejudice. \n IT IS SO ORDERED. \n \n      ___________________________________ \n       ERIC PAUL WELLS \n      ADMINISTRATIVE LAW JUDGE","textLength":2432,"preview":"-1- BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H100386 TREVOR GALLANT, Employee CLAIMANT FUSION PROPERTIES, INC., Employer RESPONDENT BRIDGEFIELD CASUALTY INS. CO., Carrier/TPA RESPONDENT OPINION FILED JANAURY 6, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian Cou...","outcome":"dismissed","outcomeKeywords":["dismissed:5","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:11:00.346Z"},{"id":"alj-H204178-2023-01-06","awccNumber":"H204178","decisionDate":"2023-01-06","decisionYear":2023,"opinionType":"alj","claimantName":"Mckenzie Thompson","employerName":"Blue Ribbon Industries","title":"THOMPSON VS. BLUE RIBBON INDUSTRIES AWCC# H204178 JANUARY 6, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/THOMPSON_MCKENZIE_H204178_20230106.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOMPSON_MCKENZIE_H204178_20230106.pdf","fullText":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H204178 \n \nMCKENZIE THOMPSON, Employee CLAIMANT \n \nBLUE RIBBON INDUSTRIES, Employer RESPONDENT \n \nACCIDENT FUND, Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 6, 2023 \n \nHearing   before   ADMINISTRATIVE   LAW   JUDGE   ERIC   PAUL   WELLS   in   Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney at Law, Fayetteville, Arkansas. \n \nRespondents represented by LAURA J. PEARCE, Attorney at Law, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  October  11,  2022,  the  above  captioned  claim  came  on  for  a  hearing  at  Springdale, \nArkansas.   A pre-hearing conference was conducted on July 13, 2022, and a Pre-hearing Order \nwas  filed  on  July  13,  2022.   A  copy  of  the  Pre-hearing  Order  has  been  marked  Commission's \nExhibit No. 1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1. The Arkansas Workers' Compensation Commission has jurisdiction of this claim. \n 2. The relationship of employee-employer-carrier existed between the parties on April 28, \n2022. \n 3. The respondents have controverted the claim in its entirety. \n 4.  The  claimant’s  weekly  compensation  rates  are  $492.00  for  temporary  total  disability \nand $369.00 for permanent partial disability. \n\nThompson – H204178 \n \n \n-2- \n By agreement of the parties the issues to litigate are limited to the following: \n 1. Whether Claimant sustained a compensable injury to his low back on April 28, 2022. \n 2. Whether Claimant is entitled to medical treatment for his work-related injury. \n 3. Whether Claimant is entitled to temporary total disability benefits from May 10, 2022, \nto a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n 5. Respondents raise lack of notice as an affirmative defense. \n Claimant’s contentions are: \n“Claimant   contends   he   is   entitled   to   medical   treatment   and \ntemporary  total  disability  benefits  as  a  result  of  his  work  injury. \nClaimant reserves all other issues.” \n \n Respondents’ contentions are: \n \n“Respondents  contend  that  the  Claimant  did  not  sustain  a  work-\nrelated  injury  on  April  28,  2022.  Respondents  contend  that  the \nClaimant’s  lower  back  injury  does  not  meet  the  definition  of  a \ncompensable  injury.  Furthermore,  Respondents  contend  Claimant \nfailed to report any work-related injury alleged to have occurred on \nApril 28, 2022, thereby preventing Respondents the opportunity to \ndirect any treatment provided to Claimant.” \n \n The  claimant  in  this  matter  is  a  26-year-old  male  who  alleges  that  he  sustained  a \ncompensable  low  back  injury  on  April  28,  2022,  while  employed  by  the  respondent.  The \nclaimant  testified  at  the  hearing  that  his  job  duties  included  running  a  water  truck,  a  roller,  and \nbuilding pad sites for buildings. This work required the claimant to operate bulldozers and a tract \nexcavator, but it also required the use of a hand shovel.  \n The  claimant  gave  direct  testimony  at  the  hearing  in  this  matter  about  the  events \nsurrounding his alleged compensable back injury as follows: \nQ What happened on April 28\nth\n of this year? \n\nThompson – H204178 \n \n \n-3- \n \nA So  on  April  28\nth\n  of  this  year,  we  were  out  at  a  job  site  we \nhad in Pinnacle Village and I was trying – every time we had to lay \ngravel in the ditch, we would have to move the dirt out of the way \nso that the gravel  could set right. And it’s red dirt so it’s got a lot \nof rocks in it and it’s very hard dirt so I was trying to shovel that, \nthe dirt and the rock out of the way,  and when  I  did that I tripped \nover my shovel and kind of leaned forward and twisted, and that’s \nwhen I could hear it pop. \n \nQ And what did you hear pop? \n \nA My back. \n \nQ And how did that feel? \n \nA It felt very bad. It was stabbing and excruciating pain. \n \nQ Were  you  on  level  ground?  Were  you  in  a  ditch?  Where \nwere you? \n \nA I was in a ditch. \n \nQ And about how deep was the ditch? \n \nA I’d say three to four foot. They weren’t super tall. \n \nQ Were you able to get out on your own? \n \nA I was. \n \nQ And was there anyone working with you that day? \n \nA There  were  people  out  on  the  job  site,  but  nobody  was \nactually with me. \n \n The  claimant  testified  that  he  reported  his  injury  to  his  on-jobsite  supervisor,  Sean \nGalloway. The claimant gave direct examination testimony about his reporting of the injury and \nhis request to go see a doctor as follows: \nQ And when you reported it to Sean, what did he do? \n \n\nThompson – H204178 \n \n \n-4- \nA He told me that he would let Nathan know, which was our \nin-office supervisor. \n \nQ And  at  that  point,  did  you  feel  like  you  needed  to  see  a \ndoctor? \n \nA I did, but I decided that I was gonna just go home and ice it, \nfinish out my workday and ice it, and try that. \n \nQ Were you able to finish out the day? \n \nA I was able to finish out the day. It was tough to get through \nit, but I was able to finish it out. \n \nQ And did you ice your back later? \n \nA I  did.  I  went  home  and  laid  on  the  couch,  flat  on  my \nstomach, and my wife put an ice pack on my back. \n \n On cross examination, the claimant was asked about his request to go to the doctor on the \nday  he  alleges  the  low  back  injury  to  have  occurred  and  his  decision  not  to  go  see  a  doctor  as \nfollows: \nQ And did you ask to go to the doctor at that point in time? \n \nA I did. I told them that I may need to go to the doctor, but I \ndecided I was going to stay home and ice it. \n \nQ So there’s a difference between my question. My  question \nwas did you ask the employer to send you to the doctor? \n \nA Yes. \n \nQ You did? You asked them to send you to a doctor? \n \nA Yes. \n \nQ And what was their response? \n \nA They said that they would. \n \nQ Okay. But then subsequent to that, you decided to just stay \nhome and rest it? \n\nThompson – H204178 \n \n \n-5- \nA Yes. \n \nQ And what made you make that decision? \n \nA I just needed the money so I decided to stay at work and ice \nit. \n \nQ Okay. So let me take a step back. So you didn’t –  what \nmade you – I’m sorry, the answer wasn’t what I thought it was.  \n So  you  said  you  asked  to  go  to  the  doctor,  they  said  they \nwould send you to the doctor, and you decided to stay? \n \nA I decided to finish out my workday –  \n \nQ Okay. –  \n \nA – and then go home and ice it. \n \nQ Okay. And then the next day when you went back to work \nand it was still giving you problems, did you say, “Hey, I decided I \nneeded to go to the doctor”? \n \nA No. I decided I was gonna wait. \n \n On  direct  examination,  the  claimant  testified  that  he  continued  to  work  after  the  alleged \ninjury until May 10, 2022, when he first sought medical treatment. The claimant testified that he \nmanaged  his  pain  by  using  ice  packs  from  his  lunchbox  on  his  back  during  his  lunch  break. \nStrangely, the claimant did not request for the respondent to send him to the doctor as he testified \nthey had previously offered, was told by the respondent he could go to the doctor, and then the \nclaimant  decided  not  to  go.  Instead,  the  claimant  went  to  see  his  primary  care  physician,  Dr. \nGregory Henson. Following is a portion of the claimant’s cross examination testimony: \nQ Okay.  And  when  you  decided  to  go  to  your  primary  care \ndoctor,  had  you  since  that  day  of  injury  of  May –  sorry,  of  April \n28\nth\n,  until  you  went  to  see  Dr.  Henson,  did  you  ask  to  go  to  the \ndoctor? \n \nA I did not. \n \n\nThompson – H204178 \n \n \n-6- \nQ And  so  you  made  the  decision  to  see  your  primary  care \ndoctor? \n \nA Yes. \n \nQ And how long have been with Dr. Henson? \n \nA Dr. Henson; no very long. \n \n On May 10, 2022, the claimant was seen by Dr.  Henson at MANA Medical Associates. \nFollowing is a portion of that medical record: \nReason for Appointment \n1. Back pain x 2 wks, now unable to work due to pain. \n \nHistory of Present Illness \nNew/Follow-up Patient Consult: \n Patient here with complaints of lower back pain that started \nabout  2  or  3  weeks  ago.  He  has  been  taking  ibuprofen  as  well  as \nTylenol,  using  lidocaine  patches  which  was  helping  but  does  not \nseem to be helping much anymore. He does have some Zanaflex he \nwas doing at home as well but this is not helping either. Per patient \nreport he does have a history of a lumbar  fracture in the past, this \nwas around 2 years ago. He did have an x-ray done at that time and \nit   did   note   an   anterior   superior   endplate   fracture   of   the   L5 \nvertebrae.  He  was  supposed  to  have  an  MRI  done,  thinks  he  had \none done of the lower back but he is somewhat unsure. Thinks he \nhad  this  done  at  Arkansas  medical  imaging.  He  was  also  post  to \nhave  physical  therapy  and  see  an  orthospine  doctor  but  he  never \ndid  this  as  he  was  afraid  of  having  to  have  surgery.  He  stated  his \nback  did  improve  a  lot  and  was  not  having  any  issues  until  a \ncouple  weeks  ago  or  so.  He  denies  any  specific  event  that  caused \nthis  pain  but  he  does  do  manual  labor  at  his  job  and  around  the \nhouse  when  he  is  off  work  to  so  he  thinks  this  could  potentially \nhave done it. He denies any numbness in the legs at this time. \n \n*** \nAssessments \n1.   Acute   midline   low   back   pain   without   sciatica –   M54.50 \n(Primary) \n2.   Closed   nondisplaced   fracture   of   fourth   cervical   vertebra, \nunspecified fracture morphology, initial encounter – S12.301A \n \n\nThompson – H204178 \n \n \n-7- \nPt  still  with  apparent  anterior  superior  endplate  fx  of  T4,  he  did \nhave  previous  x-ray  about  2  yrs  ago  which  was  resulted  by \nradiology  as  superior  anterior  endplate  fx  of  T5,  I  assume  they \nmisspoke on this previous, T5 looks good at this time. I did speak \nwith pt about x-ray. Discussed with pt about possibilities, he would \nlike to try medication first, if pain continue will try PT and referral \nto ortho spine if desired. He  was referred previously but ended up \nnot going. \n \nThe claimant was prescribed hydrocodone-acetaminophen tablets and baclofen tablets at his visit \nwith Dr. Henson. \n Given  the  claimant’s  testimony  regarding  how  his  back  pain  began  as  a  result  of  the \ncompensable  injury  he  alleges  on  April  28,  2022,  the  above  medical  report  undercuts  the \nclaimant’s  credibility  severely.  In  the  report  there  is  no  mention  of  the  incident  the  claimant \nalleges  to  have  occurred  regarding  shoveling  on  April  28,  2022.  In  fact,  the  report  states “he \ndenies any specific event that caused this pain but he does do manual labor at his job and around \nthe house when he is off work so he thinks this could potentially have done it.” It is perplexing as \nto  how  the  medical  record  does  not  reflect  any  information  about  the  incident  the  claimant \nalleges, particularly considering the fact that the claimant testified that he was told that he could \ngo  to  the  doctor  by  the  respondents  because  of  the  incident  and  he  turned  that  offer  down  and \nthen  went  to  see  his  own  primary  care  physician.  On  direct  examination,  the  claimant  testified \nthat  he  told  Dr.  Henson  about  the  April  28,  2022,  incident. On  cross  examination,  the  claimant \nwas asked about his interaction with Dr. Henson about the alleged incident as follows: \nQ Okay. So you go to see Dr. Henson, and do you recall when \nyou went to go see him how you described your injury? \n \nA No. \n \nQ I   am   going   to   show   you   the   record   that   is   in   our \nrespondents’ exhibits, page 163 to 164. \n\nThompson – H204178 \n \n \n-8- \n Are  you  familiar  with  this  record?  Have  you  seen  this \nbefore? \n \nA I am. I have one at home. \n \nQ Okay. And this is dated  what date? Can you read that date \non there? \n \nA 5-10-22. \n \nQ Great.  So  when  you  went  to  go  see  Dr.  Henson,  it  is \npossible that you had explained to him that you denied any specific \nevent that caused the pain, but that you do manual labor at your job \nand  around  the  house  when  you  are  off  work,  and  you  think  that \ncould potentially have caused your injury? \n \nA No, ma’am. I told him exactly what happened. \n \nQ Okay.  Any  reason  why  Dr.  Henson  would  have  reported \nsomething different than what you had told him? \n \nA I think he forgot. \n \nQ Okay.  So  you  are  denying  the  fact  that  you  ever  told  him \nthat it potentially could have been caused from something else? \n \nA Yes, ma’am. \n \nQ And that you don’t remember a specific incident? \n \nA No. \n \n In   direct   examination   testimony   the   claimant   alleges   that   he   gave   notice   to   the \nrespondents  about  going  to  Dr.  Henson,  but  it  is  again  perplexing  that  he  would  give  notice  of \ngoing to his primary care physician for what he alleges is a work-related injury instead of asking \nto  see  a  doctor  through  the  respondent  as  they  have  offered  to  do,  according  to  his  own \ntestimony.  Regardless,  Dr.  Henson  placed  the  claimant  on  light  duty  and  the  claimant  provided \nthe light-duty note to the respondent on May 11, 2022.  \n\nThompson – H204178 \n \n \n-9- \n The  claimant  gave  direct  examination  testimony  about  his  conversation  with  Nathan \nLopez, a supervisor for the respondent, about his light-duty restrictions as follows: \nQ And did you go to work that next day? \n \nA I did not. I went to the office and gave them the  light-duty \nnote, and they said they didn’t have any light-duty for me. \n \nQ Who specifically told you that? \n \nA Nathan Lopez. \n \nQ And at some point after that conversation, were you offered \nsome light-duty? \n \nA I was. It was later than I normally get texted about work the \nnext  day,  and  I  had  already  taken  my  pain  medication  and  my \nmuscle  relaxer,  so  I  knew  that  I  was  supposed  to  have  the  light-\nduty  the  next  day,  but  I  fell  asleep  and  was  supposed  to  be  in \nFayetteville by 5:00 am, and I was late. I didn’t wake up until like \nnine o’clock. \n \nQ And so what happened when you were late? \n \nA I was let go. \n \nQ And who let you go? \n \nA Nathan Lopez. \n \nQ And since that time, have you been able to work? \n \nA I have not. \n \nQ And why not? \n \nA Just can’t – can’t do it. Can’t stand for a  very  long  time, \ncan’t sit for very long. Moving certain ways, hurts. \n \n After  the  claimant’s  employment  with  the  respondent  ended,  he  continued  to  seek \nmedical  treatment  and  was  referred  by  Dr.  Henson  to  Ozark  Orthopedics.  The  claimant  was \n\nThompson – H204178 \n \n \n-10- \ninitially seen by Thurman Smith, PA-C, on June 15, 2022. Following is a portion of that medical \nrecord: \nChief Complaint \nLower back/L-spine problem \n \n*** \nPM&R Spine \n*** \nMr.  Thompson  Pleasant  25-year-old  male  with  acute  onset  low \nback  pain  after  a  work  accident  while  he  was  working  for  Blue \nribbon  ground  services  in  April  2022.  He  was  working  a  shovel \nand  had  some  degree  of  strain  about  the  low  back  and  had  acute \nonset pain which eventually saw a provider at the recommendation \nof  his  employer  who  placed  some  work  modifications  which \nprovided  some  degree  of  relief  but  his  pain  persisted  and  he \nultimately  went  to  the  emergency  room  where  x-rays  were  taken \nand  there  was  some  concern  for  an  L4  bone  injury.  His  pain  has \npersisted and he presents clinic today for initial evaluation. He also \nnotes  a  remote  injury  to  his  back  in  2020  after  a  JetSki  accident. \nThis was self-limited. \n \n*** \nAssessment/Plan \nImage/Record Review: \n-  X-ray  of  the  lumbar  spine  reviewed  from  medical  Associates  of \nNorthwest  Arkansas  dated  5/10/2022  showing  deformity  of  the \nanterior  superior  endplate  of  L4  vertebra  and  could  be  related  to \nprevious  trauma  or  injury.  There  is  levoscoliosis  of  the  lumbar \nspine. There is posterior fusion anomaly of S1 noted. \n \nPertinent Medications: \n- Arkansas PMP reviewed \n- Hydrocodone 7.5/325 mg \n \nAssessment: \n1.  Acute  onset  low  back  pain  after  a  work  accident  in  April  2022 \nwith  recent  lumbar  pain  radiograph  evidence  showing  L4  bone \ninjury, age indeterminate. \n \nPlan: Mr. Thompson is a pleasant 25-year-old male with acute low \nback  pain  after  work  accident  in  April  2022.  Recent  x-rays  show \nL4   deformity   a   age-indeterminate.   There   is   suspicion   for \n\nThompson – H204178 \n \n \n-11- \ndiscogenic   pain   as   well.   At   this   time   we   will   proceed   with \nadvanced imaging And see him back in office to review. \n \nSummary: \n1. Lumbar spine MRI without contrast. \nAll   questions   and   concerns   addressed.   The   patient   verbally \nunderstands and agrees to the plan. \n \n I note that in this medical record the claimant asserts he had a work incident involving a \nshovel. This is in contrast to his initial visit with his own primary care physician where he denied \nany acute event causing his low back pain.  \n On  August  1,  2022,  the  claimant  underwent  an  MRI  of  the  lumbar  spine  at  Ozark \nOrthopedics. Following is a portion of the diagnostic report authored by Benjamin Lowery, MD: \nFindings: \nLumbar  spine  demonstrates  normal  lordotic  curvature.  Vertebral \nbody  heights  are  well-maintained  and  demonstrate  normal  signal. \nDisc desiccation is seen at L3/L4. The conus medullaris terminates \nthe  level  of  L1.  Visualized  soft  tissues  of  the  abdomen  and  pelvis \nare unremarkable. \n \nAt T12/L1, no evidence of disc bulge, neural foraminal narrowing, \nor central canal stenosis is identified. \n \nAt  L1/L2,  no  evidence  of  disc  bulge,  neural  foraminal  narrowing, \nor central canal stenosis is identified. \n \nL2/L3,  no  evidence  of  disc  bulge,  neural  foraminal  narrowing,  or \ncentral canal stenosis is identified. \n \nAt L3/L4, mild diffuse disc bulge is seen with mild  bilateral facet \ndegenerative  changes  present.  The  central  canal  measures  9.6  mm \nin  AP  dimension  consistent  mild  central  canal  stenosis.  No  neural \nforaminal narrowing is identified. \n \nAt  L4/L5,  minimal  diffuse  disc  bulge  is  seen.  The  central  canal \nmeasures   10.1   mm   in   AP   dimension.   Mild   bilateral   neural \nforaminal narrowing is noted. \n \n\nThompson – H204178 \n \n \n-12- \nAt  L5/S1,  no  evidence  of  disc  bulge,  neural  foraminal  narrowing, \nor  central  canal  stenosis  is  identified.  Right-sided  pars  defect  is \nsuspected. \n \nIMPRESSION: \n1.  Mild  degenerative  changes  are  seen  in  the  lumbar  spine  most \npronounced at L3/L4 as described above. \n2.  Possible  right-sided  pars  defect  at  L5.  This could  be  confirmed \nwith oblique radiographs. \n \n On  August  30,  2022,  the  claimant  was  again  seen  at  Ozark  Orthopedics.  However,  this \ntime the claimant was seen by Dr. George Deimel. Following is a portion of that medical record: \nChief Complaint \nFollowup: Lumbar radiculopathy \n \n*** \nPM&R Spine \n*** \nMr. Thompson returns to clinic today for a follow up. He was last \nevaluated  on  6/15/2022.  At  that  time,  he  was  having  acute  onset \nlow back pain. Decision was made to pursue an MRI of the lumbar \nspine. He is here today to discuss further evaluation and treatment \noptions. \n \n*** \nAssessment/Plan \nImaging and Record Review: \n-  Lumbar  spine  radiographs  from  MANA  dated  5/10/2022  were \nreviewed,  showing  deformity  of  the  anterior  superior  endplate  of \nL4 vertebra, could be related to previous trauma or injury. There is \nlevoscoliosis   of   the   lumbar   spine.   There   is   posterior   fusion \nanomaly of S1 notes. \n-  An  MRI  of  the  lumbar  spine  from  Ozark  Orthopaedics  dated \n8/1/2022 shows possible right-sided pars defect. At the L3-4 level, \nthere is disc bulging with mild central canal stenosis. \n-   An   Arkansas   Prescription   Monitoring   Program   report   was \nreviewed and consistent with stated history. \n \nDiagnosis: \n1. Acute onset low back pain after a work accident, April 2022 \n2.  Lumbar  spine  MRI  evidence  of L3-4  disc  bulging,  mild  central \ncanal stenosis, possible right-sided L5 pars defect \n3. Lumbar spondylosis \n\nThompson – H204178 \n \n \n-13- \n4.   S/p   activity   modification,   medication   management   with \nimprovement in pain complaints \n \nAssessment: \nMr.   Thompson   returns   to   clinic   today   for   a   follow   up.   We \ndiscussed  his  clinical  course.  I  reviewed  an  MRI  of  his  lumbar \nspine. He does have disc bulging with evidence of disc desiccation \nat  the  L3-4  level.  I  do  suspect  that  this  is  the  likely  source  of  his \ndiscogenic  pain.  He  also  has  some  right  low  back  pain.  An  MRI \nshowed possible pars defect. Again, he may have had exacerbation \nof  this  in  the  setting  of  his  work-related  injury.  At  this  point,  I \ncertainly  do  not  think  he  needs  any  type  of  surgical  intervention. \nHe  is  managing  with  activity  modification  and  medications.  He  is \ncurrently  taking  baclofen  and  hydrocodone  at  night.  We  will  give \nhim  a  refill  of  the  baclofen  and  a  prescription  for  hydrocodone  5-\n325mg   x   20   tabs.   He   does   understand   that   this   is   the   last \nprescription of oral systemic opioids that we will use for control of \nhis back pain.  At that point, if he needs further or escalating care, \nthen we will likely move forward with interventions. We will plan \na  follow  up  in  6-8  weeks  to  recheck.  If  he  is  doing  well  at  that \ntime, he can cancel the appointment. \n \nSummary: \n- Reviewed lumbar spine MRI \n- Continue to monitor symptoms, certainly stable \n- Refill baclofen \n-  Hydrocodone  5-325mg  x  20  tabs  to  take  at  night  as  needed  for \nbreak through pain \n- If patient calls, can arrange for bilateral L3-4, L4-5, TFESI \n- Work note for light duty \n \n It  is  the  claimant’s  burden  to  prove  that  he  sustained  a  compensable  injury  to  his  low \nback in the incident he alleges to have occurred on April 28, 2022. In order to do so, the claimant \nmust prove the existence of objective medical findings regarding his low back and prove a causal \nconnection between those objective medical findings and the incident he alleges to have caused \nthem. \n The  MRI  report  dated  August  1,  2022,  does  show  the  existence  of  objective  medical \nfindings  regarding  the  claimant’s  low  back,  as  the  impression  section  of  that  report  revealed \n\nThompson – H204178 \n \n \n-14- \n“mild  degenerative  changes  are  seen  in  the  lumbar  spine  most  pronounced  at  L3/L4”  and \n“possible  right-sided  pars  defect  at  L5.  This  could  be  confirmed  with  oblique  radiographs.”  I \nnote that Dr. Deimel in his August 30, 2022, medical report regarding the claimant discussed the \npars defect stating “an  MRI showed possible pars defect. Again, he may have had  exacerbation \nof this in the setting of his work-related injury.” \n However,  the  claimant  must  also  prove  the  existence  of  a  causal  connection  between \nthose  objective  medical  findings  and  the  incident  he  alleges  on  April  28,  2022.  Here,  the \nclaimant is unable to prove the required causal connection. The claimant’s initial visit to his own \nprimary  care  physician,  Dr.  Henson,  on  May  10,  2022,  clearly  fails  to  indicate  any  type  of \nspecific incident the claimant associated with his low back complaints at that time. The claimant, \nin  testimony,  suggested  Dr.  Henson  simply “forgot.”  It  is  in  the  realm  of  possibility  that  Dr. \nHenson  simply  forgot,  but  unlikely,  particularly  because  Dr.  Henson’s  medical  record  provides \nthe claimant’s thoughts  on the cause of his low  back symptoms, stating “he denies  any specific \nevent that caused this pain but he does do manual labor at his job and around the house when he \nis  off  work  to  so  he  thinks  this  could  potentially  have  done  it.”  I  do  not  believe  Dr.  Henson \nforgot,  but  instead,  recorded  what  the  claimant  told  him  about  his  thoughts  on  how  his  pain \nbegan.  \n The  claimant’s  testimony  that  he  was  told  by  the  respondent  that  he  could  go  to  the \ndoctor  for  his  alleged  injury  and  then  the  claimant  decided  not  to  go,  is  in  itself,  reasonable. \nHowever, for the claimant then to later go to his own primary care physician and testify that he \ngave  notice  to  the  respondent  that  he  was  going  to  his  own  primary  care  physician  instead  of \nrequesting  for  them  to  send  him  to  a  doctor,  as  the  claimant  testified  they  had  done,  seems \n\nThompson – H204178 \n \n \n-15- \nunreasonable,  particularly  given  the  claimant  specifically  denied  any  specific  work  injury \ncausing his low back pain to Dr. Henson. \n The  claimant  does  mention  a  work-related  injury  in  his  June  15,  2022,  visit  to  Ozark \nOrthopedics,  but  this  is  after  the  claimant  was  terminated  from  his  employment.  The  claimant \nwas  provided  light  duty  work  according  to  the  claimant’s  testimony  due  to  Dr.  Henson’s  work \nrestriction  note  that  he  provided  to  the  respondent.  However,  the  claimant  was  three  hours  late \nfor work and was terminated on May 12, 2022, for his tardiness. \n Here, the claimant is unable to prove the required causal connection between the alleged \nApril 28, 2022, incident and the objective medical findings. I simply do not believe the incident \non April 28, 2022, occurred. I do believe the claimant had low back symptoms around that time \nand told Dr. Henson about those symptoms in his May 10, 2022, visit. The lack of reporting the \nincident to Dr. Henson is substantial evidence. The claimant only reporting this alleged incident \nto  medical  providers  after  he  was  terminated  from  his  employment,  makes  those  reports  less \nreliable. \n The objective findings of low back difficulties are reasonably explained by the claimant’s \nremarks  recorded  in  his  medical  record from  his  May  10,  2022,  visit  with  Dr.  Henson, “denies \nany  specific  event  that  caused  this  pain  but  he  does  do  manual  labor  at  his  job  and  around  the \nhouse  when  he  is  off  work  to  so  he  thinks  this  could  potentially  have  done  it.”  The  objective \nfindings could also be explained by the multiple low back complaints shown in medical records \nprior to this alleged April 28, 2022, incident introduced into evidence by the respondents. I note \nthat  the  claimant  downplayed  or  did  not  have  memory  of  only  but  a  few  of  his  past  medical \nissues,  which  is  remarkable  since  the  claimant  was  seen  in  emergency  departments  at  three \ndifferent hospitals, Mercy Hospital Northwest Arkansas, Northwest Medical Center Bentonville, \n\nThompson – H204178 \n \n \n-16- \nand Eureka Springs Hospital, a total of 22 times between of February 2016 and September 2019. \nI will note that the reasons for the claimant’s emergency department visits were mostly unrelated \nto  his  low  back,  but  the  claimant  was  evasive  or  very  forgetful  about  his  past  medical  history \nwhen questioned at both deposition and the hearing in this matter. \n The  claimant  has  failed  to  prove  that  he  sustained  a  compensable  low  back  injury  on \nApril 28, 2022. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witness  and  to  observe  his  demeanor,  the  following  findings  of  fact  and  conclusions  of  law \nare made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nJuly 13, 2022, and contained in a Pre-hearing Order filed July 13, 2022, are hereby accepted as \nfact. \n 2. The claimant has failed to prove by a preponderance of the evidence that he sustained a \ncompensable injury to his low back on April 28, 2022. \n 3. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto medical treatment for his alleged work-related injury. \n 4. The claimant has failed to prove by a preponderance of the evidence that he is entitled \nto temporary total disability benefits from May 10, 2022, to a date yet to be determined. \n 5. The claimant has failed to prove entitlement to an attorney’s fee in this matter. \n 6. The respondents affirmative defense regarding lack of notice is moot. \n \n\nThompson – H204178 \n \n \n-17- \nORDER \n Pursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \n IT IS SO ORDERED. \n \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","textLength":29341,"preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H204178 MCKENZIE THOMPSON, Employee CLAIMANT BLUE RIBBON INDUSTRIES, Employer RESPONDENT ACCIDENT FUND, Carrier RESPONDENT OPINION FILED JANUARY 6, 2023 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Springdale, Washington County, Arkansas. Claima...","outcome":"denied","outcomeKeywords":["denied:5"],"injuryKeywords":["back","lumbar","fracture","cervical","strain"],"fetchedAt":"2026-05-19T23:11:02.489Z"},{"id":"alj-H205370-2023-01-05","awccNumber":"H205370","decisionDate":"2023-01-05","decisionYear":2023,"opinionType":"alj","claimantName":"Sharon Christian","employerName":"Northport Health Services Arkansas LLC","title":"CHRISTIAN VS. NORTHPORT HEALTH SERVICES ARKANSAS LLC AWCC# H205370 JANUARY 5, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//CHRISTIAN_SHARON_H205370_20230105.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"CHRISTIAN_SHARON_H205370_20230105.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H205370 \n \nSHARON CHRISTIAN, Employee                                                                       CLAIMANT \n \nNORTHPORT HEALTH SERVICES ARKANSAS LLC, Employer             RESPONDENT \n \nPMA MANAGEMENT CORPORATION, Carrier                                        RESPONDENT \n \n \n OPINION FILED JANUARY 5, 2023 \n \nCase submitted on the record with stipulated facts before ADMINISTRATIVE LAW JUDGE \nJOSEPH C. SELF in Springdale, Washington County, Arkansas. \n \nClaimant is represented by MICHAEL L. ELLIG, Attorney, Fort Smith Arkansas. \n \nRespondents represented by JAMES A. ARNOLD II, Attorney, Fort Smith, Arkansas. \n \n    \n STATEMENT OF THE CASE \n \n \n On November 10, 2022, a pre-hearing conference was conducted with the attorneys for the \nparties.  A pre-hearing order was filed on that same date.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection.   Rather than \nschedule  this  matter  for  a  hearing,  the  parties  advised  that  a  stipulated  record  would  be  submitted, \nalong with a brief from each party setting forth its position on how the law applies to the stipulated \nfacts.  The stipulated facts and the briefs of the parties are blue backed and made a part of the record.  \n The stipulated facts of this case are as follows: \n           1.     The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n           2.          The  employee/employer/carrier  relationship  existed  between  Sharon  Christian  and \nNorthpoint Health Services Arkansas and PMA Management Company at all relevant times, including \nJuly 14, 2022. \n\n2 \n \nChristian-H205370 \n \n          3.      Through no fault of the claimant, Sharon Christian, did not work a full workweek for \nthe first four weeks of her employment. \n          4.     On or about July 14, 2022, Sharon Christian sustained an injury to her left leg in the course \nand scope of her employment with Northpoint Health Services Arkansas. \n          5.      Sharon Christian’s left leg injury was accepted as compensable by Northpoint Health \nServices Arkansas and PMA Management Company and benefits were paid under the Act accordingly. \n           6.     Based on the actual wages paid to claimant, respondents paid temporary total disability \nbenefits at the rate of $677.00 per week. \n           7.     Attached is the AR-W form which accurately reflects the wages that were paid to claimant \nprior to her date of injury. \n           8.          In  lieu  of  a  hearing,  the  parties  agree  to  submit  the  issue  of  average  weekly  wage  and \ncompensation rates to the Commission with the record consisting of briefs and stipulation of fact.   \n Therefore, the issue to be decided is solely what claimant’s  average  weekly  wage  is  for \ncalculating her temporary total disability benefits.  \n Claimant contends that the records show claimant’s average weekly wage is $1,260.00, entitling \nher to the maximum compensation rate of $790.00, and that she is entitled to an attorney’s fee on any \nindemnity benefits awarded.  \n Respondents contend that claimant’s average weekly wage is $1,015.83, yielding a temporary \ntotal disability rate of $678.00, and have already been paid.  \n From a review of the record as a whole, including the stipulated facts, the briefs of the parties, \nthe  payment  records  submitted,  and  other  matters  properly  before  the  Commission,  the  following \nfindings of fact and conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n\n3 \n \nChristian-H205370 \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations submitted by the parties are hereby accepted as fact. \n 2.   Claimant’s average weekly wage is $1,260.00,  which  entitles  her  to  a  temporary  total \ndisability rate of $790.00.  \n 3.  Claimant is entitled to an attorney’s fee on the unpaid indemnity benefits.  \nREVIEW OF THE EXHIBITS \n \n The exhibits which were submitted without objection were claimant’s pay stubs  beginning \nwith a check dated April 12, 2022, and ending with a check dated June 21, 2022, and the AR-W form \nfiled December 6, 2022, with the Commission.  \nADJUDICATION \n \n This  matter  is  governed  by Arkansas  Code  Annotated  section  11-9-518 which states  in \npertinent part: \n (a)(1) Compensation shall be computed on the average weekly wage earned by the employee \nunder the contract of hire in force at the time of the accident and in no case shall be computed on \nless than a full-time workweek in the employment. \n (c)  If,  because  of  exceptional  circumstances,  the  average  weekly  wage  cannot  be  fairly  and \njustly determined by the above formulas, the commission may determine the average weekly wage by \na method that is just and fair to all parties concerned. \n I am also persuaded that Rheem Mfg. v. Bark, 97 Ark. App. 224 (2006) is squarely on point with \nthe stipulated facts of this case.   \nAs set forth in stipulated fact #3, claimant did not work full-time during the first four weeks \nof her employment but that failure to work a full week was not claimant’s fault.   As such, I find the \ncalculations for claimant’s average weekly wage should commence on April 27, 2022.   Claimant began \n\n4 \n \nChristian-H205370 \n \naveraging 42 hours per week on that date, and for eight weeks, earned a total of $10,076 in regular \nwages and overtime.  That averages $1,260.00 per week, and 75% of that sum exceeds the maximum \ncompensation  rate  for  temporary  total  disability.  Therefore,  I  find  the  claimant  is  entitled  to \ncompensation at the maximum rate of $790.00 per week.  \nORDER \n \nClaimant  earned  an  average  weekly  wage  of  $1,260.00  which  would  entitle  her to a \ncompensation at the rate of $790.00 per week for temporary total disability benefits. Respondent is \nliable for the difference, if any, between this rate and the rate at which benefits were previously paid. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is hereby awarded an attorney’s fee \nin the amount of 25% of the indemnity benefits payable to the claimant. This fee is to be paid one-\nhalf by the carrier and one-half by the claimant. The respondents are to withhold the claimant’s portion \nof the attorney's fee from the claimant's award and to pay the attorney's fee directly to the claimant's \nattorney. \nAll sums herein accrued are payable in a lump sum without discount and this award \nshall bear interest at the maximum legal rate until paid. \n IT IS SO ORDERED \n                                                                                               \n \n \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":6753,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H205370 SHARON CHRISTIAN, Employee CLAIMANT NORTHPORT HEALTH SERVICES ARKANSAS LLC, Employer RESPONDENT PMA MANAGEMENT CORPORATION, Carrier RESPONDENT OPINION FILED JANUARY 5, 2023 Case submitted on the record with stipulated facts before ADMINISTRATIVE LAW...","outcome":"granted","outcomeKeywords":["granted:2"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:10:54.081Z"},{"id":"alj-H202246-2023-01-05","awccNumber":"H202246","decisionDate":"2023-01-05","decisionYear":2023,"opinionType":"alj","claimantName":"Tony Johnson","employerName":"L&m Mowing Service, LLC","title":"JOHNSON VS. L&M MOWING SERVICE, LLC AWCC# H202246 JANUARY 5, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//JOHNSON_TONY_H202246_20230105.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"JOHNSON_TONY_H202246_20230105.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nAWCC CLAIM NO.: H202246 \nTONY JOHNSON, \nEMPLOYEE CLAIMANT   \nL&M  MOWING SERVICE, LLC, \nEMPLOYER RESPONDENT \nMARKEL SERVICE, INC., \nTHIRD PARTY ADMINISTRATOR    RESPONDENT  \n  OPINION FILED JANUARY 5, 2023 \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  CHANDRA  L.  BLACK,  in  Little  Rock, \nPulaski County, Arkansas. \nClaimant, pro se, not appearing.     \nRespondents represented by Mr. Randy P. Murphy, Attorney at Law, Little Rock, Arkansas. \n STATEMENT OF THE CASE     \nA  hearing  was  held  on the Respondents’ motion to dismiss for want of prosecution, on \nJanuary 4, 2023, in this claim for workers’ compensation benefits pursuant to Dillard v. Benton \nCounty Sheriff’s Office, 87 Ark. App. 379, 192 S.W. 3d 287 (2004).  Specifically, the sole issue \nfor  determination  was  whether  this  claim  should  be  dismissed due to the Claimant’s failure  to \npunctually prosecute it pursuant to the provisions of Ark. Code Ann. §11-9-702 (a)(4) (Repl. 2012) \nand/or Arkansas Workers’ Compensation Commission Rule 099.13.  \nReasonable notice of the dismissal hearing was had on all parties in the manner prescribed \nby law.  \nThe  record  consists  of  the   hearing  transcript  from  January  4,  2023.    The  entire \nCommission’s file has been made a part of the record.    It  is  hereby  incorporated  herein  by \nreference.   \n\nJohnson – H202246 \n \n2 \n \n No testimony was taken at the hearing. \n                   Procedural Background  \n The record reflects the following procedural history: \nThe Claimant filed a Form AR-C with the Commission in the above-styled claim on March  \n17, 2022.   Per this document, the Claimant asserted that he sustained an accidental injury while \nworking for the respondent-employer on December 3, 2022.  Specifically, the Claimant asserted \nin this document that he was involved in an accidental injury at work when he fell off a tractor.  \nThe Claimant’s  fall  allegedly  caused  an  injury  to  his  left  leg,  which  resulted  in  him  having  to \nundergo surgery.  At that time of the filing of the Form AR-C, the Claimant requested both initial \nand  additional  benefits.  Specifically,  the  Claimant  requested  initial  benefits  in  the  form  of \ntemporary partial disability, medical expenses, and strangely enough for attorney fees.  However, \nthere is no indication in the record that the Claimant is a licensed attorney; or that he has retained \na lawyer to represent him in  this  matter.  Also,  pursuant to this form the Claimant claimed his \nentitlement to additional rehabilitation benefits. \nOn  March  25,  2022  the  Respondent-insurance  carrier  filed  a  Form  AR-2  with  the \nCommission.  Per this document, the carrier denied this claim on the grounds that “Claimant did \nnot sustain an injury arising out of the course and scope of his employment.”   \nSince the filing of the Form AR-C in March 2022, there has been no action taken on the \npart of the Claimant to prosecute his claim for workers’ compensation benefits.   \nTherefore, on November 7, 2022, the Respondents filed with the Commission a Motion to \nDismiss for Failure Prosecute.  On that same day, the Respondents served a copy of the foregoing \npleading on the Claimant by way of mailing it via the United States Postal Service.      \n\nJohnson – H202246 \n \n3 \n \nSubsequently, on November 8, 2022  I sent a letter to the Claimant informing him of the \nmotion, with a deadline of November 28, 2022 for filing a written objection.  On November 10, \n2022, the Postal Service delivered this item to the Claimant by leaving a copy of it at his residence.   \nThe electronic return receipt bears the Claimant’s signature for delivery of this parcel of mail.   \nHowever,  there was no answer from the Claimant.  \nOn December 5, 2022, a Notice of Hearing was issued.  It was sent via certified mail to the \nparties letting them know that a hearing on the Respondents’ motion for dismissal was scheduled \nfor  January  4,  2023  in  Little  Rock,  Arkansas.    In  the  regard,  on  December  17,  2022,  the  Postal \nService delivered the Hearing Notice to the Claimant’s home.  The electronic return receipt shows \nthat the Claimant signed for delivery of the Notice.  \nTo date, there has been no reply from the Claimant.  \nA hearing was in fact conducted on the Respondents’ motion to dismiss as scheduled.  The \nClaimant  did  not  appear  at  the  hearing  to  object  to  his workers’ compensation claim being \ndismissed.  However, the Respondents’ attorney appeared for the hearing.   \nDuring  the  hearing,  counsel  moved  that  this  claim  be  dismissed  due  to  a  lack  of \nprosecution.  Counsel specifically asked that the dismissal be made under  the provisions of Ark. \nCode Ann. §11-9-702 and Commission Rule 099.13.   The applicable law and Commission Rule \nare set forth below.  \n                         Discussion \nIn that regard, Ark. Code Ann. §11-9-702(a)(4) (Repl. 2012) reads:  \nIf within six (6) months after the filing of a claim for compensation, no bona fide \nrequest for a hearing has been made with respect to the claim, the claim may, upon \nmotion and after hearing, be dismissed without prejudice to the refiling of the claim \nwithin the limitation periods specified in subdivisions (a)(1)-(3) of this section. \n \n\nJohnson – H202246 \n \n4 \n \nCommission Rule 099.13 reads:  \n \nThe Commission may, in its discretion, postpone or recess hearings at the instance \nof either party or on its own motion.  No case set for hearing shall be postponed  \nexcept by approval of the Commission or Administrative Law Judge. \n \nIn the event neither party appears at the initial hearing, the case may be dismissed \nby  the  Commission  or  Administrative  Law  Judge,  and  such  dismissal  order  will \nbecome  final  unless  an  appeal  is  timely  taken  therefrom  or  a  proper  motion  to \nreopen  is  filed  with  the  Commission  within  thirty  (30)  days  from  receipt  of  the \norder. \n \nUpon  meritorious  application  to  the  Commission  from  either  party  in  an  action \npending before the Commission, requesting that the claim be dismissed for want of \nprosecution, the Commission may, upon reasonable notice to all parties, enter an \norder dismissing the claim for want of prosecution. (Effective March 1, 1982) \n \nMy  review  of  the  record  shows  that  more  than  six  (6)  months  have  elapsed  since  the \nClaimant filed the Form AR-C in his assertion for workers’ compensation benefits.  In fact, it has \nbeen almost ten (ten) months since the filing of the Form AR-C, which was done in March 2022.  \nHowever, since this time, the Claimant has failed to make a bona fide request for a hearing with \nrespect  to  his  claim  for  compensation.  The  Claimant  has  not  responded  to  the  Notices  of  this \nCommission.  Moreover, the Claimant did not appear at the hearing to object to his claim being \ndismissed.     \nTherefore, based on my review of the documentary evidence, and all other matters properly \nbefore the Commission, I find that the Respondents’ motion to dismiss this claim is well founded \nunder Ark. Code Ann. §11-9-702 (a)(4) (Repl. 2012) and Commission Rule 099.13.  Accordingly, \nthis  claim  is  respectfully  dismissed  without  prejudice,  to  the  refiling  of  it  within  the  limitation \nperiod specified by law.  \n                                  FINDINGS OF FACT AND CONCLUSIONS OF LAW \nOn  the  basis  of  the  record  as  a  whole, I  hereby  make  the  following  findings  of  fact  and \nconclusions of law in accordance with Ark. Code Ann. §11-9-704 (Repl. 2012): \n\nJohnson – H202246 \n5 \n1.The Arkansas Workers’ Compensation Commission has jurisdiction of this\nclaim.\n2.Reasonable notice of the dismissal hearing was attempted on all the parties\nin the manner prescribed by law.\n3.The  evidence  preponderates  that the Respondents’ Motion  to  Dismiss  for\nFailure to Prosecute is warranted.\n4.That the Respondents’ motion is hereby granted pursuant to Ark. Code Ann.\n§11-9-702  (a)  (4)  (Repl.  2012)  and  Commission  Rule  099.13,  without\nprejudice, to the refiling of the claim within the specified limitation period.\nORDER \nBased on the foregoing findings of fact and conclusions of law, this claim is respectfully \ndismissed  without  prejudice  under  Ark.  Code  Ann.  §11-9-702(a)(4)  and  Rule  099.13, to  the \nrefiling of it within the limitation period specified by law.     \nIT IS SO ORDERED. \n________________________________ \n  CHANDRA L. BLACK  \nAdministrative Law Judge","textLength":8559,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION AWCC CLAIM NO.: H202246 TONY JOHNSON, EMPLOYEE CLAIMANT L&M MOWING SERVICE, LLC, EMPLOYER RESPONDENT MARKEL SERVICE, INC., THIRD PARTY ADMINISTRATOR RESPONDENT OPINION FILED JANUARY 5, 2023 Hearing before ADMINISTRATIVE LAW JUDGE CHANDRA L. BLACK, in Little Rock, Pul...","outcome":"dismissed","outcomeKeywords":["dismissed:8","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:10:56.147Z"},{"id":"alj-H102563-2023-01-05","awccNumber":"H102563","decisionDate":"2023-01-05","decisionYear":2023,"opinionType":"alj","claimantName":"Mikalaj Schaeffer","employerName":"Northwest Medical Center","title":"SCHAEFFER VS. NORTHWEST MEDICAL CENTER AWCC# H102563 JANUARY 5, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads/SCHAEFFER_MIKALAJ_H102563_20230105.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SCHAEFFER_MIKALAJ_H102563_20230105.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H102563 \n \nMIKALA J. SCHAEFFER, Employee                                                                   CLAIMANT \n \nNORTHWEST MEDICAL CENTER, Employer                                   RESPONDENT \n \nGALLAGHER BASSETT, CARRIER/TPA                            RESPONDENT \n \n \n OPINION FILED JANUARY 5, 2023 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington \nCounty, Arkansas. \n \nClaimant represented by LAURA BETH YORK, Attorney, Little Rock, Arkansas. \n \nRespondents represented by JAMES A. ARNOLD II, Attorney, Fort Smith, Arkansas. \n \n STATEMENT OF THE CASE \n  \n On October 20, 2022, the above captioned claim came on for hearing at Springdale, Arkansas.  \nA pre-hearing conference was conducted on September 1, 2022, and a pre-hearing order was filed on \nthat same date.  A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and \nmade a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of this claim. \n 2.   The employee/employer/carrier relationship existed on January 10, 2021. \n 3.   The claimant sustained a compensable injury on January 10, 2021.  \n             4.    The compensation rates are $500.00 for temporary total disability and $375.00 for \npermanent partial disability. \n At the hearing, the parties discussed the issues set forth in Commission Exhibit 1. The \nfollowing were litigated: \n\nSchaeffer-H102563 \n2 \n \n           1. Whether claimant is entitled to additional medical treatment. \n           2.  Whether  claimant  is  entitled  to  additional  temporary  total  disability  benefits  from \nAugust 5, 2021, through December 13, 2021. \n            3. Attorney fees.   \n All other issues were reserved.  \n The  claimant  contends that  “on  January  10,  2021,  claimant  sustained  an  admittedly \ncompensable injury to her left shoulder when her shoulder popped as she was picking up a  tray of \nsurgical  instruments.  Respondents  sent  her  to  Dr.  Heim  at  the  Orthopedic  Center  of  Northwest \nArkansas. Dr. Heim noted that the MRI showed increased signal at the rotator cuff. He gave her an \ninjection  and  prescribed  physical  therapy.  Claimant  reported  back  to  the  Orthopedic  Center  of \nNorthwest  Arkansas and was seen  by  Dr.  Allard,  as  Dr.  Heim  was  off  work  on  medical  leave. Dr. \nAllard ordered an MR arthrogram. Dr. Allard opined that her injury sounded like a labral tear, but the \nrespondents denied her treatment with Dr. Allard and denied the MR arthrogram. Respondents then \nsent the claimant back to Dr. Heim, who agreed that it sounded like the claimant had a labrum tear \nand ordered a second MRI. On September 14, 2021, Dr. Heim reported that the EMG and MRI were \nnormal  and  released  her  at  maximum  medical  improvement  with  a  0%  rating  and  no  restrictions. \nClaimant then went to Dr. Dougherty who noted that he reviewed the MRI, and it showed an unstable \nbicep tendon due to rupture of the ligament. Dr. Dougherty noted that the tendon was perched on \nthe  spine,  which  explained  her  pain  with  movement.  He  believed  there  was  a  suprascapular  nerve \nentrapment and recommended a diagnostic shoulder arthroscopy. This was denied by the respondents. \nClaimant went to Dr. Earl Brewley, who reviewed the MRI, and noted that it showed clear findings \nof  a  subluxed  labrum  and  recommended  surgery.  Claimant  contends  she  is  entitled  to  medical \ntreatment, temporary total disability, and that her attorney is entitled to an attorney fee. All other issues \n\nSchaeffer-H102563 \n3 \n \nare reserved.” \n The  respondents  contend that “claimant has received all medical treatment and indemnity \nbenefits to which she is entitled.” \n From  a  review  of  the  record  as  a  whole,  including  medical  reports,  documents,  and  other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of the \nclaimant and to observe her demeanor, the following findings of fact and conclusions of law are made \nin accordance with A.C.A. §11-9-704: \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n1. The Arkansas Workers' Compensation Commission has jurisdiction over this claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant has met her burden of proof by a preponderance of evidence that she is entitled \nto temporary total disability benefits beginning August 5, 2021 and continuing through December \n12, 2022. \n4. Claimant has met her burden of proof by a preponderance of the evidence that she is \nentitled to additional medical benefits from Dr. Christopher Dougherty for her left upper extremity \ninjury. \n5.  Claimant has proven by a preponderance of the evidence that her counsel is entitled to a \ncontroverted attorney's fee on the indemnity benefits awarded herein pursuant to Ark. Code Ann. § \n11-9-715. \n FACTUAL BACKGROUND \n At the close of the hearing, the parties were asked to submit briefs in support of their \nposition.  Those are blue backed to the record of this matter as Commission’s exhibits. \n \n\nSchaeffer-H102563 \n4 \n \n \nHEARING TESTIMONY \n \n Claimant testified on January 10, 2021, that she was working for Northwest Medical Center as \na  certified  surgical  technologist\n1\n.  Claimant  said  that  she  reached  to  pick  up  a  tray  of  surgical \ninstruments.    When she  lifted  it,  she  felt  her  shoulder  pop.  She  immediately  felt  excruciating  pain, \nwhich she reported to the charge nurse on call that day. Claimant saw Dr. Blake Hansen first and was \nthen referred to Dr. John Heim. Both Dr. Hansen and Dr. Heim referred claimant to physical therapy, \nbut  claimant  said  neither  course  of  physical  therapy  helped.  Dr.  Heim  recommended  an  MRI \narthrogram, and the insurance carrier initially denied it, but eventually it was approved. Claimant also \nunderwent an EMG/MCV. Claimant was working using only her right arm, but believes the repeated \nuse caused it to start hurting. When it was reported to Dr. Heim, he sent her for a functional capacity \nevaluation.  Claimant  said  that  she  did  not  feel  good  after  the  FCE;  she  took Tylenol  and  iced  her \nshoulders. \n Claimant  stated  that  on  August  4,  2021,  Dr.  Heim  released  her  at  maximum  medical \nimprovement with a permanent light duty restriction. Claimant said that there was no light duty work \nin the operating room and respondent did not provide her with light duty work in another department. \nClaimant testified that her left shoulder was still not functioning properly as she did not have a lot of \ngrip strength in her hand.  \n Claimant felt that she was not getting proper care from Dr. Heim, so she sought and received \na change of physician from Dr. Heim to Dr. Christopher Dougherty. Claimant saw Dr. Dougherty on \nDecember 6, 2021.  Dr. Dougherty had the results of her MRI and nerve conduction study when she \nsaw him; additionally, Dr. Dougherty performed an ultrasound in his office. Claimant said after the \n \n1\n The transcript records that claimant said “certified social technologist” but from the context of her testimony, I \nbelieve this was an error. \n\nSchaeffer-H102563 \n5 \n \n \nexamination, Dr. Dougherty recommended a bicep tendonesis; however, this was denied by the claims \nadjuster for respondent Gallagher Bassett.  She testified that she was taken off work completely at that \nappointment. Despite that restriction from Dr. Dougherty, she began working around December 13, \n2021,  at an eye clinic, which she said was sedentary work. Because claimant was receiving no disability \nbenefits, she was in financial distress, and had to move to North Dakota to be with her family. She \ncurrently works in a position that is a light duty job, which she is able to perform.  \n Claimant said that she went on her own to see Dr. Earl Brewley in North Dakota. After Dr. \nBrewley  reviewed  the  diagnostic  reports  and  examined  claimant,  he  recommended  the  bicep \ntendonesis surgery.  \n Claimant testified that she believes that she has not gotten better since the injury, believing \nthat her left shoulder has either stayed the same or has gotten worse. She requested that the surgery \nrecommended by Dr. Dougherty, Dr. Brewley, and Dr. Aaron Humphreys with Genex be approved \nby the Workers’ Compensation Commission. \n On cross-examination, claimant confirmed that while the MRI arthrogram was initially denied, \nshe did eventually have it. She said that while she would not term what she was doing “light duty \nwork,” Northwest gave her work within her restrictions, and she was paid while she was doing one-\narmed duty. She stated at the time that Dr. Heim released her, he had discussed surgery but had not \nordered it or recommended it. Claimant did not agree with respondent’s counsel that her MRI was \nnormal and disagreed that the MRI arthrogram was normal but  did agree that the EMG/MCV test \ndid return a normal result. Claimant said the ultrasound test was done in Dr. Dougherty’s office. She \nagreed that Dr. Heim released her at maximum medical improvement on August 4, with a permanent \nrestriction. She stated that she wasn’t healed but had been released from care; no doctor took her off \nwork   from   August   4   through   December   6,   2021.  Claimant  said  when  Dr.  Dougherty’s \n\nSchaeffer-H102563 \n6 \n \n \nrecommendation for surgery was denied, she didn’t have any choice except to go to work on \nDecember 13, 2021. Claimant agreed that she had full and unrestricted passive range of motion in her \narm,  meaning  that  someone  else  could  move  her  arm.  Claimant  stated  that  Dr.  Brewley  was  an \nunauthorized physician that she had to pay for from her own pocket. \n On  redirect-examination,  claimant  said  she  had  no  income  between  August  5, 2021,  and \nDecember  13,  2021.  She  contacted  Northwest,  asking  to  work  anywhere  in  the  hospital,  and  was \nrepeatedly turned down. \nREVIEW OF THE MEDICAL RECORDS \n \n The parties did not duplicate many of the records, and this review will be done in chronological \norder, referring to both claimant’s exhibits as well as respondent’s. \n Claimant began seeing Dr. Blake Hansen on January 11, 2021.  At the initial visit, Dr. Hansen \ndid an x-ray of claimant’s left shoulder, finding no fracture or dislocation. While there are no physical \ntherapy notes submitted, Dr. Hansen discusses claimant’s course of treatment in physical therapy. On \nFebruary 10, 2021, Dr. Hanson made an orthopedic referral but continued to follow claimant until \nshe could see the orthopedist, Dr. John Heim. (CL.X.1-12) \n Claimant had an MRI on February 25, 2021. Both claimant and respondent listed the MRI as \nbeing part of their exhibits, but neither included the entire report (CL.X.13) (R.X.1). However, Dr. \nHansen included the MRI impression in his March 3, 2021, report: \n1.  Mild muscular edema in the infraspinatus muscle belly, this may \n    represent a mild strain.  \n2. Mild tendinosis of the mid and distal supraspinatus tendon. Mild \n    tendinosis of the distal infraspinatus tendon. \n3.  Otherwise, no source for shoulder pain, her shoulder is hurting \n    much worse than before. (CL.X.16) \n \n Claimant had her first appointment with Dr. Heim on March 10, 2021. Dr. Heim gave claimant \na cortisone injection at that first visit. In his discussion notes, Dr. Heim said “her MRI shows some \n\nSchaeffer-H102563 \n7 \n \n \nincreased  signal  at  the  insertion  of  the  rotator  cuff.  I  recommend  at  this  point  that  we  inject  the \nsubacromial  space  and  get  her  back  into  therapy  to  work  on  range  of  motion  modalities  and  cuff \nstrengthening exercises.” (CL.X.22) \n For reasons that are not clear from the records, after her initial visit with Dr. Heim, claimant \nreturned to Dr. Hansen on March 18. It appears Dr. Hansen first suggested the MR arthrogram but \napparently did not offer any treatment on that date. (CL.X.23-27) \n While  Dr.  Heim  was  recovering  from  surgery,  Dr.  Mark  Allard  saw  claimant  on  March  23, \n2021. He suspected that claimant had a labral injury and he too agreed that an MR arthrogram need \nto be done. (CL.X.28-31) Claimant had the MR arthrogram of her left shoulder on April 23, 2021. \nThe impressions as recorded by Dr. Joseph Yancy are as follows: \n1.  Superior labium appears intact. There is mild degenerative frame along the \nlabrum enterally. No discrete tear is seen. \n2.  Intact rotator cuff and long head of biceps tendon. \n3.   Minimal   chondral   thinning   at   the   glenohumeral   joint   with   normal \nsubchondral bone. Normal AC joint. (R.X.6)   \n \nIn his office notes of May 12, 2021, Dr. Heim recorded: \n \n“This patient’s MRI does not reveal any labral or cuff pathology. I \ndo  not  see  a  significant  outlet  obstruction  but  clinically  she  is  not \ndoing well. Passively she has good range of motion and actively she \ndoes not, so we are concerned about a neuromuscular problem. We \nare getting a nerve conduction study and an EMG, and I will see her \nback after these tests.” (CL.X.39) \n \n Following her EMG/NCV, claimant again saw Dr. Heim on June 2, 2021. Dr. Heim noted \nevidence of disuse muscle atrophy. He wanted claimant to go back to therapy to maximize her strength \nand lifted some of her restrictions on her left arm to allow a five-pound weight limit. Dr. Heim did \nnot think she was a surgical candidate at that time. \n Claimant returned to Dr. Heim on July 7, 2021.  His discussion notes mention that claimant \nwas reporting right shoulder pain in addition to that in her left shoulder and was feeling very agitated.  \n\nSchaeffer-H102563 \n8 \n \n \nDr. Heim asked her if she would like to see a therapist, but claimant declined.  “I am concerned about \nthe mental health of this patient, as I believe there is a psychosomatic component to her pathology.”  \nHe  then  referred  claimant  to  Functional  Testing  Centers,  Inc.  for  a  functional  capacity  evaluation \n(FCE), which was performed on July 15, 2021.  During the FCE, claimant continually complained of \npain in her left shoulder, and was unable to perform many of the tasks she was asked to do with her \nleft hand and arm. The examiner failed to notice the atrophy in claimant’s left upper extremity and \ndetermined  that  she  put forth “an unreliable effort” with 32 of 55 consistency measures within \nexpected limits. (R.X. 24-44) \nOn August 4, 2021, Dr. Heim saw claimant and based on the FCE, he believed claimant would \nbe  able  to  function  at  the  light  classification  of  work.  He  stated  claimant  had  reached  maximum \nmedical improvement and released her to return to work within the activity level as defined by the \nresults of the functional capacity evaluation. (CL.X.72), which was “in at least the light classification \nof work.” (R.X. 26).  His record of that date concludes:  \n“Note to provider: Mikala was seen in office today, 08/04/21 to review \nFCE results.  She has been released with the following restrictions: She \nis in the light category of work with occasional bi-manual lift/carry of \nup to 30 pounds.  Lift/carrying of up to 10 pounds on a frequent basis.  \nOccasional RUE  lift  of  25  pounds  and a  LUE lift  of  5  pounds  when \nlifting unilaterally from knuckle to shoulder level.  We can provide an \nimpairment rating if requested without another office visit.”  \n \nDr. Heim was then requested by the claims adjuster to assess an impairment rating. He issued \na  report  dated  September  14, 2021, in which he concluded “claimant does not meet criteria for \npermanent partial impairment.” (R.X.50) Dr. Heim did not explain how claimant was limited to light \nduty without having an anatomical impairment. \n After  being  discharged  from  Dr.  Heim,  claimant  returned  to  Dr.  Hansen  and  saw  him  on \nAugust 9, September 17, and September 22, 2021. It does not appear that Dr. Hansen offered any \n\nSchaeffer-H102563 \n9 \n \n \nform of treatment to claimant. (R.X.14) \n Claimant  received  a  change  of  physician  order  (R.NM.1-4)  and  then  saw  Dr.  Christopher \nDougherty.   After   evaluating   the   existing   records,   Dr.   Dougherty   performed   an   ultrasound \nexamination  which  showed  an  unstable  bicep  tendon  which  he  attributed  to  the  rupture  of  the \ntransverse  humoral  ligament.  Dr.  Dougherty  recommended  surgery,  as  claimant  had  failed a \nconservative care for nine months and surgery was the only option to repair what Dr. Dougherty saw \nduring  the  ultrasound  procedure.  (CL.X.82-90)  Dr.  Aaron  Humphreys  from  Genex  was  asked  by \nrespondent to review the records and agreed with Dr. Dougherty’s assessment; he advised the claims \nadministrator that the surgery that Dr. Dougherty recommended was certified. (CL.X.91-93) \n Following her move from Arkansas, claimant saw Dr. Earl Brewley in Minot, North Dakota \non January 24, 2022. Dr. Brewley was not claimant’s authorized treating physician; Dr. Dougherty was \n(and is) still in that role. On his first examination, Dr. Brewley did not have all her records but when \nshe returned on June 13, 2022, Dr. Brewley saw clear findings of a subluxed labrum on the MRI and \nstated in his assessment and plan that claimant “likely has a symptomatic superior labrum tear, which \nlikely would benefit from  a proximal bicep tenodesis verses tenotomy. I did recommend, however, \nthat this patient having additional symptoms could likely benefit from a referral to a neurology and \nassessment.  We  are  still  waiting  for  this  as  this  was  previously  rejected  from  insurance  coverage.” \n(CL.X.94-95, 103) \n Dr.  Theodore  Hronas, a  board-certified  radiologist,  was  asked  to  review  the  radiological \nreports and concluded “there is no objective finding of an acute injury of the rotator cuff, labrum, or \nlong head of the biceps tendon. I agree there is mild chronic supraspinatus tendinosis without tear.” \nDr. Hronas did not mention Dr. Dougherty in his list of reviewed records. (R.X 51-52) \n \n\nSchaeffer-H102563 \n10 \n \n \n \nREVIEW OF THE NON-MEDICAL EXHIBITS \n \n Respondent submitted the order allowing claimant to change physicians entered in November \n2021, and the Form AR-N signed by claimant on January 11, 2021.   \nADJUDICATION \n \n As  set  forth  above,  the  parties  litigated  whether  claimant  was  entitled  to  additional  medical \ntreatment and a period of temporary total disability (TTD).  While there is some overlapping of these \nissues, they will be addressed separately.  \n Is claimant entitled to additional medical treatment? \n  Claimant  has  the  burden  of  proving  by  a  preponderance  of  the  evidence  that  medical \ntreatment is reasonable and necessary. Goyne v. Crabtree Contracting Company, 2009 Ark. App. 200, 301 \nS.W. 3d 16.  It was stipulated that claimant had a compensable injury on January 10, 2021. Once it has \nbeen  established  that  a  claimant  has  sustained  a  compensable  injury,  she  is  not  required  to  offer \nobjective medical evidence to prove entitlement to additional benefits, Ark. Health Ctr. v. Burnett, 2018 \nArk. App. 427, at 9, 558 S.W.3d 408, 414.  \n As for the proof presented by the parties, I found claimant to be credible in her testimony. \nAlthough a claimant's testimony is never viewed as uncontroverted, the Commission need not reject \nthe claimant's testimony if it finds that testimony worthy of  belief. Ringier America v. Combs, 41 Ark. \nApp. 47, 849 S.W.2d 1 (1993). Having had the benefit of seeing claimant testify, I found her to be \ncredible  that  her  arm  has  not  stopped  hurting  since  the  day  of  the  compensable  injury.    It  then \nbecomes a matter of reconciling the doctor’s records with that credible testimony.  \nRespondents rely on the records from Drs. Hansen, Heim, Allard and Hronas.  While I don’t \nbelieve any of these doctors were  wrong in their assessment, I can dispense with three of them quickly.  \nDr.  Hansen provided only conservative care, turning claimant’s treatment over to Dr. Heim when \n\nSchaeffer-H102563 \n11 \n \n \nclaimant did not respond to what Dr. Hansen could provide. Dr. Allard saw claimant on one occasion \nin Dr. Heim’s absence  and  did  not  change claimant’s course  of  treatment.  Dr.  Hronas  never  saw \nclaimant, but only reviewed records that were provided to him.  As noted above, he did not have those \nfrom Dr. Dougherty.  \nThat leaves Dr. Heim’s records to consider, and those are confusing. He didn’t find anything \nhe  would  term  a  permanent  impairment,  yet  he  released  claimant  with  permanent  restrictions.  Dr. \nHeim suggested to claimant that her problem might be psychosomatic, offering mental health services \nto claimant, but she declined. That indicates to me that Dr. Heim believed there was something causing \nclaimant to have the pain and limitations with her arm that she reported but could not find the cause.   \n Claimant  submitted  records  from  Drs.  Dougherty,  Brewley  and  Humphreys.  I  agree  with \nrespondent  that  Dr. Humphreys’  report  is  of  little  use  because  he  utilizes  the  Official  Disability \nGuidelines, which are irrelevant to determining if a course of treatment is reasonable in Arkansas.\n2\n   I \nfound Dr. Brewley’s records to be more useful. Much of what he said was couched in the probable \nrather than the definite, but that is sufficient; a doctor need not be absolute in an opinion or use the \nmagic words \"within a reasonable degree of medical certainty\" so long as his medical opinion be more \nthan speculation, Freeman v. Con-Agra Frozen Foods, 344 Ark. 296 (2001).  I do not see any reference in \nDr. Brewley’s records to the ultrasound performed by Dr. Dougherty, which will be discussed below. \n(I did note the disagreement between Dr. Brewley’s reading of the MRI and the opinion rendered by \nDr.  Hronas.  Without  having  any  information  presented  about  the  qualifications  of  Dr.  Brewley  to \nread and interpret an MRI, I’d be inclined to accept the findings of Dr. Hronas over Dr. Brewley on \n \n2\n  I  found  a  report  by  the  same  doctor  in  2021 was  “not  particularly  helpful” for  that  very  reason,  see Duero  v. \nDoubletree Hotel, 2021 AR WRK. COMP. LEXIS 217.  However, under whatever criteria he used, I find it interesting \nthat  the  doctor  selected  by  respondent to  review  claimant’s  records agreed  with  Dr.  Dougherty’s  opinion,  but  his \nrecommendation to certify the surgery was rejected by respondent.   \n\nSchaeffer-H102563 \n12 \n \n \nwhat the MRI revealed, were that the last word in the matter.)    \n I am most persuaded by Dr. Dougherty’s findings following his examination of claimant on \nDecember 6, 2021. He used a different diagnostic tool than did Dr. Heim by utilizing an ultrasound \nas  part  of  his  examination  and  found “an unstable biceps tendon due to rupture of the transverse \nhumeral  ligament.”  As  claimant  had  not  responded  well  to  conservative  care  for  9  months,  Dr. \nDougherty determined that claimant should be scheduled for “a diagnostic shoulder arthroscopy with \nbicep tenodesis,” as it was the only option for her condition.  In view of all the  evidence, including \nclaimant’s credible  testimony,  I  find  claimant  has  met  her  burden  of  proof  that  she  is  entitled  to \nadditional medical treatment.  \n Respondent  raised  an  issue  in  its  brief  about  the  absence  of  the  ultrasound  report  in  the \nexhibits that claimant submitted: “The report of that ultrasound is not in the record although claimant \ntestified that the report is in her medical records.” Claimant’s testimony on direct testimony was indeed \nthat she gathered all her diagnostic tests to take to Dr. Brewley (TR.22) but on cross-examination, she \nwas asked if she said she had a report on the ultrasound, her answer was “it should be in my medical \nrecords.” (TR  28).    As  mentioned  above,  the  ultrasound  was  not  mentioned  by  Dr.  Brewley  in  his \nreport of June 13, 2022. From that, I conclude that Dr. Brewley did not receive it. Claimant testified \nthat the ultrasound was performed by Dr. Dougherty in his office; she watched it on the screen as he \ndid it.  What is recorded in his office notes of that day may be “the ultrasound report,” as it sets forth \nwhat the doctor who performed the test saw on the screen. I would have to assume that Dr. Dougherty \nmade a separate record that differed significantly from what he recorded in his office notes, and I see \nno reason to make that assumption. Therefore, I decline to make the inference that evidence that was \nnot submitted on that issue would have been prejudicial to claimant’s case.    \n  Before moving to the issue of TTD, I asked of the parties at the end of the hearing: “If I find \n\nSchaeffer-H102563 \n13 \n \n \nadditional medical treatment is warranted, who does it?”  Claimant  used  her  one-time  change  of \nphysicians  to  Dr.  Dougherty  before  she  moved  to  North  Dakota  due  to  her  financial  condition. \nRespondent was clear in its post-hearing brief: “If claimant is found to be entitled to the surgery, it \nshould  be  done  by  the  current  authorized  physician,  Dr.  Dougherty.”  Claimant  argued  that \nrespondent’s actions which caused claimant to have to leave Arkansas amounted to “bad faith” and \nset forth the expenses respondent would be expected to cover—such as travel, food, lodging—that \nwould be incurred if claimant had to return to Arkansas. She concluded that “the only equitable and \nreasonable solution is to allow the claimant to treat with Dr. Brewley in North Dakota.  \nAs  much  as  I  agree  that  an  equitable  solution  would  be  for  this  treatment  to  take  place  in \nNorth Dakota, this court is not one of equity, but of law.  Claimant failed to provide a case that would \nallow me to order that claimant can once again change to another authorized physician, and I did not \nfind one in my research to permit me to order the change to Dr. Brewley as the authorized treating \nphysician, and therefore decline to do so.  Respondent will need to decide if it wants to promptly pay \nall the additional expenses that are statutorily authorized for claimant to return to Dr. Dougherty for \ntreatment, or avoid those costs and authorize treatment in North Dakota.  \n Is claimant entitled to TTD from August 5, 201 through December 13, 2021? \n In its post-hearing brief, respondent urges that claimant was released by Dr. Heim on August \n4,  2021,  at  maximum  medical  improvement  (MMI)  and  therefore  would  not  be  entitled  to  any \nadditional TTD benefits until she saw Dr. Dougherty on December 7, 2021, who took her off work \nfollowing that visit.  Since claimant took a job on December 13, 2021, it is respondents’ position that \nthe six-day period between December 7 and December 13, 2021, is not long enough for claimant to \nbe entitled to any additional TTD benefit.   \nClaimant’s position is that while she had been released by Dr. Heim, it was for light duty work \n\nSchaeffer-H102563 \n14 \n \n \nand therefore she is entitled to TTD because her employer refused to provide light duty work to her \nwithin the restrictions imposed by Dr. Heim, and further, there is insufficient evidence in the record \nthat claimant had the capacity to earn the same or any part of the wages she was receiving at the time \nof the injury.  \nThe healing period is that period for healing of the injury which continues until the employee \nis as far restored as the permanent character of the injury will permit. Nix v. Wilson World Hotel, 46 \nArk. App. 303, 879 S.W.2d 457 (1994). If the underlying condition causing the disability has become \nmore stable and if nothing further in the way of treatment will improve that condition, the healing \nperiod has ended. Id. Whether an employee's healing period has ended is a factual determination to be \nmade by the Commission. Ketcher Roofing Co. v. Johnson, 50 Ark. App. 63, 901 S.W.2d 25 (1995).  \n After reviewing all the evidence, I am convinced there was something further in the way of \ntreatment that could improve her condition when she was released by Dr. Heim. I do not question \nthat Dr. Heim made what he thought to be the correct decision in releasing claimant from his care at \nMMI, but I believe he did so at least in part based on the results of the FCE, which did not take into \naccount the extent of claimant’s shoulder injury.  As I have the benefit of information Dr. Heim did \nnot  have  on  August  4,  2021—the report from Dr. Dougherty’s examination of claimant—I  find \nclaimant’s healing period had not ended on August 4, 2021.   She  is  entitled to  TTD  benefits  from \nAugust 5, 2021 through December 12, 2021.\n3\n  \n \n \n \n \n \n3\n Claimant testified she accepted employment on or about December 13, 2021, making less money than what she \nwas making while working for respondent.  She reserved her claim for temporary partial disability benefits.  \n\nSchaeffer-H102563 \n15 \n \n \nORDER \n \nRespondents  are  directed  to  pay  benefits  in  accordance  with  the  findings  of  fact  set  forth \nherein this Opinion. \nAll accrued sums shall be paid in lump sum without discount, and this award shall earn interest \nat the legal rate until paid, pursuant to Ark. Code Ann. § 11-9-809. \nPursuant to Ark. Code Ann. § 11-9-715, the claimant's attorney is entitled to a 25% attorney's \nfee on the indemnity benefits awarded herein. This fee is to be paid one-half by the carrier and one-\nhalf by the claimant. \nRespondent  is  responsible  for  paying  the  court  reporter  her  charges  for  preparation  of  the \ntranscript in the amount of $502.00. \n IT IS SO ORDERED. \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","textLength":30030,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H102563 MIKALA J. SCHAEFFER, Employee CLAIMANT NORTHWEST MEDICAL CENTER, Employer RESPONDENT GALLAGHER BASSETT, CARRIER/TPA RESPONDENT OPINION FILED JANUARY 5, 2023 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Springdale, Washington County, Ark...","outcome":"granted","outcomeKeywords":["granted:5"],"injuryKeywords":["shoulder","rotator cuff","back","fracture","strain"],"fetchedAt":"2026-05-19T23:10:58.220Z"},{"id":"alj-H201287-2022-01-12","awccNumber":"H201287","decisionDate":"2022-01-12","decisionYear":2022,"opinionType":"alj","claimantName":"Billy Bennett","employerName":"Tyson Poultry, Inc","title":"BENNETT VS. TYSON POULTRY, INC. AWCC# H201287 JANUARY 12, 2023","pdfUrl":"https://labor.arkansas.gov/wp-content/uploads//BENNETT_BILLY_H201787_20220112.pdf","sourceIndexUrl":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"BENNETT_BILLY_H201787_20220112.pdf","fullText":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H201287 \n \nBILLY B. BENNETT,  \nEMPLOYEE                                                                                                              CLAIMANT \n \nTYSON POULTRY, INC., \nSELF-INSURED EMPLOYER                                                                           RESPONDENT \n \nTYNET CORPORATION, INC. \nTPA                                                                                                                        RESPONDENT \n \n \nOPINION AND ORDER TO DISMISS WITHOUT PREJUDICE \nFILED JANUARY 12, 2023 \n \nHearing conducted on Wednesday, January 11,2023, before the Arkansas Workers’ \nCompensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, \nin Little Rock, Pulaski County, Arkansas. \n \nThe claimant, Mr. Billy B. Bennett, pro se, of Nashville, Howard County, Arkansas, failed \nand/or refused to appear at the hearing. \n \nThe respondents were represented by the Honorable Lauren Scroggins, Roberts Law Firm, Little \nRock, Pulaski County, Arkansas.  \n \nSTATEMENT OF THE CASE \n \n     A hearing was conducted on Tuesday, July 7, 2020, to determine whether this claim should be \ndismissed  for  lack  of  prosecution  pursuant  to Ark.  Code  Ann.  §  11-9-702(a)(4)  (2019  Lexis \nReplacement) and Commission Rule 099.13 (2019 Lexis Replacement). \n     The  respondents  filed  a  motion  to  dismiss  with  the  Commission  on  November  14,  2022, \nrequesting this claim be  dismissed for lack of prosecution. The claimant  received  a copy of the \nrespondents’  motion  to  dismiss  and the  subject  hearing  notice  in  advance  of  the  hearing  in \naccordance  with  applicable  Arkansas  law  on  November  21,  2022.  (Commission  Exhibit  1). \nThereafter, the claimant failed and/or refused to either respond to the respondents’ motion in any \nway, or to appear at the subject hearing.  \n\nBilly B. Bennett, AWCC No. H201287 \n \n2 \n \n     The record herein consists of the hearing transcript and any and all exhibits contained therein \nand attached thereto, as well as the Commission’s entire file in this matter. \nDISCUSSION \n     Consistent  with Ark.  Code  Ann.§  11-9-702(a)(4),  as  well  as  our  court  of  appeals’  ruling  in \nDillard  vs. Benton County Sheriff’s Office, 87 Ark. App. 379, 192 S.W.3d 287 (Ark. App. 2004), \nthe Commission scheduled and conducted a hearing on the respondents’ motion to dismiss. Rather \nthan  recite  a  detailed  analysis  of  the  record,  suffice  it  to  say  the  preponderance  of  the  evidence \nintroduced at the hearing and contained in the record conclusively reveals the claimant has failed \nand/or refused to prosecute his claim at this time. \n     Therefore,  after  a  thorough  consideration  of  the  facts,  issues,  the  applicable  law,  and  other \nrelevant matters of record, I hereby make the following: \n \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n \n1. The Commission has jurisdiction of this claim. \n \n2. After having received due and legal notice of both the respondents’ motion and the subject \nhearing notice, the claimant failed and/or refused to respond to the motion in any way, and \nfailed and/or refused to appear at the subject hearing. Therefore, the claimant has waived \nhis right to a hearing on the respondents’ motion to dismiss without prejudice. \n \n3. The claimant has to date failed and/or refused to prosecute his claim at this time. \n \n4. Therefore, the respondents’ motion to  dismiss  without  prejudice  filed  on  November  14, \n2022, is GRANTED; and this claim hereby is dismissed without prejudice to its refiling \npursuant  to  the  deadlines  prescribed  by Ark.  Code  Ann.  §  11-9-702(a)  and  (b),  and \nCommission Rule 099.13. \n \n     This Order shall not be construed to prohibit the claimant, his attorney, any attorney he may \nretain in the future, or anyone acting legally and on his behalf, from refiling the claim if it is \nrefiled within the applicable time periods prescribed by Ark. Code Ann. § 11-9-702(a) and (b). \n\nBilly B. Bennett, AWCC No. H201287 \n \n3 \n \n     The respondents hereby are ordered to pay the court reporter’s invoice within twenty (20) \ndays of its receipt thereof. \n     IT IS SO ORDERED. \n                                                                     \n____________________________                                                                      \n                                                                        Mike Pickens \n                                                                         Administrative Law Judge \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \n \nMP/mp","textLength":4666,"preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H201287 BILLY B. BENNETT, EMPLOYEE CLAIMANT TYSON POULTRY, INC., SELF-INSURED EMPLOYER RESPONDENT TYNET CORPORATION, INC. TPA RESPONDENT OPINION AND ORDER TO DISMISS WITHOUT PREJUDICE FILED JANUARY 12, 2023 Hearing conducted on Wednesday, January 11,2023, b...","outcome":"dismissed","outcomeKeywords":["dismissed:4","granted:1"],"injuryKeywords":[],"fetchedAt":"2026-05-19T23:11:19.168Z"}]}